WAINWRIGHT v. SYKES

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Argument of Charles Corces, Jr.

Chief Justice Warren E. Burger: We will hear arguments first this morning in 75-1578, Wainwright v. Sykes.

Mr. Corces?

Mr. Charles Corces, Jr.: Mr. Chief Justice, if it please this Honorable Court.

My name is Charlie Corces, Jr. appearing in behalf of the petitioner, Wainwright in this cause.

This case involves the recurring problem of the procedural default and its affect on subsequent habeas corpus proceedings in Federal Court.

The court granted certiorari on two cases, on two points: 1) Whether the failure to challenge the admissibility of an out of court statement at or before trial should preclude habeas relief of a habeas petitioner’s volunteering his claim at subsequent habeas proceedings.

And 2) Whether or not Jackson v. Denno mandates a voluntariness hearing where the admissibility of a confession is not challenged.

Mr. Sykes was charged in Florida with second degree murder.

He proceeded to trial and during the course of this trial certain inculpatory statements were introduced in evidence against him.

Florida has a procedural rule specifically Rule 3.190 of the Florida Rules in Criminal Procedure, which require that a pre-trial motion to suppress any confessions, which is claimed or alleged were illegally obtained be made or at least that an objection be made at trial.

But in this case counsel for Sykes neither filed his pre-trial motion nor objected to the admissibility of any of the statements during the course of the trial.

Mr. Sykes was convicted of murder in the third degree, a lesser offense.

He appealed his conviction.

In his appeal he did not raise the issue of the voluntariness of these admissions.

The only issues he raised on appeal were the sufficiency of the evidence and two other questions pertaining to instructions as to second degree murder and instructions as to self defense.

The appeal was affirmed.

The first time that Mr. Sykes raised the issue pertaining to the voluntariness of his admissions or inculpatory statements was in post conviction proceedings, filed a post conviction proceeding in the trial court in the nature of habeas corpus.

But in Florida a matter that was known to a criminal defendant and what should have and could have been raised at the trial level and on direct appeal cannot be raised collaterally.

So naturally this was denied.

Unknown Speaker: Is he raising an issue of ineffective assistance with the counsel?

Mr. Charles Corces, Jr.: No, sir and in fact in the habeas hearing in the District Federal Court, he executed a written waiver of any contention that his state trial or appellate counsel was incompetent.

So here we have no question of incompetency.

Competency of state trial and appellate counsel has been conceded.

Unknown Speaker: What if he had attempted to raise the issue on appeal not having raised it at trial?

Mr. Charles Corces, Jr.: I think that the Florida appellate courts would have denied the point.

Unknown Speaker: What is it the rule in Florida you must raise your evidentiary objections?

Mr. Charles Corces, Jr.: That is correct.

Unknown Speaker: Is that subject to a plain error exception in Florida?

Mr. Charles Corces, Jr.: I think just about anything is subject to a plain error where it is clear in the record Your Honor that they maybe for instances, you may have a completely course confession.

That if the testimony comes up that it was beaten out of the defendant.

I know the probability would be plain error, yes sir.

We do not have that situation here.

Unknown Speaker: Did his claim in collateral proceedings require flushing out with the hearing and did it rest on facts outside the record that have already been made?

Mr. Charles Corces, Jr.: No, sir the proceedings in state court were flushed out on the pleas.

Unknown Speaker: So that all the facts are in the record?

Mr. Charles Corces, Jr.: All the facts that we have yes, sir.

Unknown Speaker: With respect to voluntariness?

Mr. Charles Corces, Jr.: No, sir his claim of voluntariness is the officers gave him his Miranda Rights.

His claim is that he was intoxicated and did not understand them and of course, Florida was never put on notice.

Unknown Speaker: So that his claim does not depend on anymore facts in the record?

Mr. Charles Corces, Jr.: Yes, sir because the state was never able to focus on the issue of voluntariness on whether or not he understood his Miranda Rights.

Unknown Speaker: Mr. Corces do you mean at the trial he did not make any claim that he was intoxicated.

Mr. Charles Corces, Jr.: At the trial there was testimony that he was intoxicated.

He testified, “I drunk a little.”

Unknown Speaker: Did he link that to a claim that because of that intoxication he did not understand the warning?

Mr. Charles Corces, Jr.: No, sir he did not link it all to that claim.

Unknown Speaker: Mr. Corces, let me focus on this because some of your comments have confused me a little bit.

Maybe I should ask this question of your opponent.

Is the respondent claiming that what he said was involuntary or is he claiming that he did not understand the Miranda Warnings?

Mr. Charles Corces, Jr.: He is claiming that he did not understand the Miranda Warnings because he was too intoxicated to understand them.

Unknown Speaker: I think personally there is a distinction between those two and you feel that it is the latter.

Mr. Charles Corces, Jr.: Yes, sir.

Unknown Speaker: If. your opponent does not agree maybe he can help me out.

Unknown Speaker: Mr. Corces let me ask you one more question because I am not quite sure of how you answered one of Mr. Justice White’s questions.

As I read Judge Simpson’s opinion for the Fifth Circuit, that court ordered the state to conduct an evidentiary hearing.

That would suggest to me that the Fifth Circuit did not feel that the state record contained all of the evidence necessary to determine this new claim.

Mr. Charles Corces, Jr.: That is correct sir.

It gave Florida 90 days to conduct a Jackson v. Denno hearing.

Unknown Speaker: Anyway if collateral proceedings were open as much as direct appeal proceedings are to plain error claims.

There would not be a plain error apparent on the phase of this record.

Mr. Charles Corces, Jr.: No sir, there is no plain error apparent on the phase of this record.

As I stated out or said, Mr. Sykes subsequent to having his petitions denied in state court filed a petition in the Federal District Court for the Tampa division.

That court held that Mr. Sykes was not bound by his procedural default and gave Florida 90 days within which to conduct a Jackson v. Denno hearing, but on the Florida procedure it cannot be conducted so the State of Florida sought and obtained permission to appeal to the Fifth Circuit.

The Fifth Circuit affirmed stating that it is incumbent upon a trial judge to conduct a Jackson v. Denno hearing even though an admission or an inculpatory statement is not challenged.

And further that in as much as Florida had not proven, place the burden on Florida, that Florida had not proven that the procedural default was a tactical decision by Mr. Sykes that he was not bound by the procedural default.

We submit that both, the Federal Courts, the District Court in the Fifth Circuit were in error.

I would like to make it clearly understood to the court that we do not question the power of a Federal District Court to consider federal claims even when there has been a procedural default.

We are talking about the appropriate exercise of that power on the principles of comity, federalism and the appropriate administration of criminal justice where state has a procedural rule and we submit that principles of comity and federalism require that Federal Courts forego habeas relief where a petitioner has committed an inexcusable procedural default resulting in the failure to develop the historical facts contemporaneously with the timely presentation of the claim.

Now, I submit that in such cases denial of relief should be the rule instead of the exception.

And I fully recognize that this may conflict somewhat with what the court said in Fay v. Noia.

But it conflicts with the dicta in Fay, it does not conflict with the holding in Fay because in Fay, as I understand the case, there was a timely objection at the trial level.

In Fay, as I understand the case, the historical facts were developed at the trial level.

In Fay what occurred was that the procedural default was in failing to appeal but the historical facts were developed, they were there form an appellate court to understand them and in fact if I recall in Fay, the state conceded that the confession had been coerced and in Fay in fact, there was an intentional bypass.

In Fay there was an intentional bypass, but this court found that it had been coerced.

In other words, there was cause for failing to appeal, which brings me to what I would submit to this court are the appropriate guidelines, which have already been enunciated by this court in Davis v. The United States and that is that when there is a state procedural rule, when it is reasonable and when it has a legitimate state interest that a procedural default of that rule should preclude subsequent habeas relief where there has been a default and that default has resulted in the failure to develop the historical facts.

Unless and until such time as the habeas petitioner demonstrates not only cause, but actual prejudice.

I submit to the court that the Davis Guidelines are fair to both sides.

They provide a criminal defendant with a federal forum so that vindication of his constitutional rights, at the same time it shows proper deference to state procedural rules, which are promulgated to give him the very constitutional rights, which he seeks to protect and Florida has a rule, a criminal procedure rule that gives him as Jackson vs. Denno hearing, all he has to do is ask for it.

Unknown Speaker: Well, in this case there would it not be a much question if prejudice was there.

Mr. Charles Corces, Jr.: No sir.

Unknown Speaker: And how about cause?

Mr. Charles Corces, Jr.: There is no cause at least none has been alleged.

He has waived any contention that his trial counsel or appellate counsel was --

Unknown Speaker: You are talking about guidelines what if the prisoner or his counsel just simply said that I did not realize the statement might be objectionable?

Mr. Charles Corces, Jr.: That would not be sufficient under Estelle v. Williams Your Honor.

Unknown Speaker: Just a plain mistake.

Mr. Charles Corces, Jr.: No, sir it would not be sufficient under Estelle v. Williams.

Unknown Speaker: But I suppose your guidelines would permit the claims of inadequate counsel.

Mr. Charles Corces, Jr.: Yes, sir, but I think once we have in that counsel we have a separate constitutional claim.

Unknown Speaker: But I suppose, well, it is a separate constitutional claim, but I suppose this sort of approach would put a good deal of pressure on developing a more discernable rule about the inadequacy of counsel.

Do you think it ought to be?

How would you state it?

Counsel says, I just made a mistake, I should have objected but I did not.

Is that enough?

Mr. Charles Corces, Jr.: I think you have the rule to consider the entire case and determine whether in viewing the entire case he was reasonably effective counsel.

And of course if he was not a reasonably effective counsel considering probable tactical decisions and when I say by probable tactical decisions, I use the objective standard not these subjective standard.

I do not think it would be sufficient for counsel to come in five years later and say I did not know.

If there is a probable tactical decision that it could have been based he is not incompetent.

Unknown Speaker: And would your guidelines permit plain error exceptions to the rules.

Mr. Charles Corces, Jr.: Yes, sir I think plain error would always be an exception.

Unknown Speaker: So if the counsel’s failure was plain enough or his mistake was plain enough on the record you would ignore the mistake

Mr. Charles Corces, Jr.: I would think so, yes Your Honor.

Unknown Speaker: You would apply ordinary plain errors standards whatever they are?

Mr. Charles Corces, Jr.: Yes sir.

Unknown Speaker: Would the plain error standards depend on the state plain error standards?

Mr. Charles Corces, Jr.: Well, since it is a federal constitutional question I would say it would depend on the federal.

What is a federal plain error standard, what this court would --

Unknown Speaker: In reviewing federal?

Mr. Charles Corces, Jr.: Yes sir.

Unknown Speaker: Mr. Corces, can I ask you a question.

Supposing the prisoner when he was taken into custody was given his Miranda Warnings by the arresting officer and he responded by saying I have just had two quarters of gin, I do not know what you are talking about and all I know is I am sorry I killed this person of course to that affect.

Pretty clearly he did not understand the warnings, but he is making an inculpatory statement.

Would that be admissible?

Mr. Charles Corces, Jr.: Yes, sir if he does not object.

Unknown Speaker: Well, supposing his counsel objected to the trial, would the trial judge let that statement in?

Mr. Charles Corces, Jr.: I would assume that would be a determination for the trial court whether based on all the evidence his intoxication was such that he could not understand.

Unknown Speaker: Yeah assume he could not understand the warnings.

Mr. Charles Corces, Jr.: I would say that that would not be admissible.

Unknown Speaker: It would not be admissible.

Mr. Charles Corces, Jr.: If it please the court the Davis approach caused an actual prejudice as I stated is fair to both sides.

It also requires a criminal defendant, it forces a criminal defendant to make his constitutional assertions timely so the state can focus on the particular issue and this case points out exactly what I am talking about.

Whether or not, he was so intoxicated that he could not understand his Miranda Warnings, if the state is not put on notice to this issue, they cannot focus their evidence on the issue unless they put on notice as to this issue and unless he is forced to make his claim in a timely manner, then the state is forced to contest this issue maybe years later when he raises it in Federal Court.

It also, if it pleased the court, it tends to simplify federal habeas proceedings because by forcing a criminal defendant to take advantage of a state procedural rule, which would develop the historical facts it would make federal habeas proceedings a lot easier.

All that they would need, Federal District Courts would need is a transcript of what occurred in state court to determine the constitutional issues.

I would submit to this court that in this case the respondent Sykes has demonstrated neither cause nor prejudice and that the decisions of the lower courts were in error.

Now, as to point two Jackson v. Denno, the Fifth Circuit held that Jackson v. Denno mandates a voluntariness hearing even in the absence of a challenge to the confession.

I find it to be a curious ruling by the Fifth Circuit because in 1972 the rule completely otherwise in a very similar case to this one.

That one involved a federal prisoner and they ruled that Jackson v. Denno did not mandate a voluntariness hearing.

In Randall v. State cited in the brief of petition, the Fifth Circuit relies on this court’s decision in Sims v. Georgia.

But in Sims v. Georgia there was a specific motion to suppress filed by the defendant seeking to suppress his confession.

Whether or not this court has specifically ruled on this point I do not believe it has.

However, I have noticed that in all the opinions that have been written they carefully stake challenged confessions as recently as Michigan v. Moseley and as recently as Brewer v. Williams the confession was challenged.

To require a trial court on its own initiative, to conduct a Jackson v. Denno hearing is then require the trial judge to interfere with the defense of the case.

There maybe many reasons why even the defense would want an inculpatory statement in evidence.

It may contain defensive matter.

“Yes, I killed him but in self defense”, he may not want to take the witness stand.

To establish self defense in his confession may establish it for him, it may contain matters pertaining to insanity, which he would rather not take the witness stand and rely on the confession that comes in to evidence.

Unknown Speaker: But even if the Fifth Circuit’s rule is right in this case that the trial judge must initiate the inquiry and the voluntariness I presume the defendant could still, if he felt the way you have just described.

Tell the trial judge, “No, I do not want a hearing on voluntariness, I waived that issue.”

Mr. Charles Corces, Jr.: That maybe true Your Honor, but again if it is done during the course of the trial it is interfering with defense, the defense may not want the state to focus on the problem, it maybe as in this case intoxication.

He maybe claiming using intoxication as mitigation and by raising the issue it would allow the state to focus on what his true defense is such as intoxication.

Unless, Mr. Chief Justice, the court has any further questions it is all that I have.

Chief Justice Warren E. Burger: Very well Mr. Corces, we will hear from Mr. Korman.

Mr. Korman.

Argument of Edward R. Korman

Mr. Edward R. Korman: Mr. Chief Justice, and may it please the court.

The ultimate issue presented by this case is whether a defendant who was failed to comply with a state procedural rule which gives him a full and fair opportunity to raise a claim that his confession was obtained without compliance with this court’s holding in Miranda.

They simply march into a Federal Court at his pleasure and obtained habeas corpus relief in a new trial.

I think it would be helpful before detailing our position on this issue to speak to the facts of this case in a little bit more detail and there were two points I wanted to deal with.

First, there is this inconsistency between the order of the Court of Appeals in this case and the order of the District Court.

The District Court remanded this case for Florida to hold a full blown hearing on the issue of voluntariness of the confession, what described as Jackson v. Denno hearing.

The Court of Appeals in affirming said that the State of Florida need only provide a hearing going to the issue of whether Miranda had been complied with.

There is some confusion in the Court of Appeals’ opinion.

The Court of Appeals’ opinion seem to suggest that had the trial court initially on its own ordered a Jackson v. Denno hearing then counsel’s attention might have been more specifically drawn to this issue and he might have raised the claim on his own.

In light of this, I think it is important to take a brief look at what happened at the trial of this case.

The evidence was fairly simple.

Willie Gilbert was shot to death.

I think it was on January 8, 1972, within minutes after the crime was committed the police arrived at the defendant’s home.

Willie Gilbert was laying about 10 feet from the door of the defendant’s house.

The defendant’s wife came running up to the police and she said John shot Willie.

A few minutes later the defendant walked up to the police and he said “I shot Willie.”

They placed him under arrest and he was then taken into the police station and interrogated.

At the trial, the issue of Miranda was quite evident the defense lawyers specifically on cross examination of the police officer listed the exact warnings that were given.

He asked whether the defendant was intoxicated at the time.

He did everything except make a formal motion to suppress the evidence on the grounds that Miranda had not been complied with.

Now, they may very well have been reason for this on the record in this case because if you read the transcript, if you just read the states case alone, without consideration of the confession there is an overwhelming case at least on the charge for which the defendant was convicted which is a kind of manslaughter charge which in Florida is denominated as murder on the third degree.

The state did not need his confession on its Case in Chief prove his guilt.

The confession became relevant only in light of his defense.

That is the defendant was required in this case and the defendant’s lawyer knew it, and everybody else knew it that to take the stand and make out a case based on self defense and that is were his confession, his incriminatory statement became particularly pertinent.

Now, since there was no claim that this confession was involuntary in the traditional sense and there is nothing in the record of the trial to indicate that this confession was involuntary in the traditional sense, presumably counsel may have been aware that once the defendant took the stand in this case that statement whether Miranda was complied with or not could have been used to impeach the credibility of his self defense testimony.

And there may very well have been counsel may very well have felt that what is the point of making an objection on the state’s direct case, when the evidence is going to come in anyway, when I put my client on the stand and he is impeached by his prior confession.

And what happens in the case like this if the court says that in these circumstances a defendant can nevertheless obtain habeas corpus relief.

As in another case arising in a similar context there will be absolutely no reason for defense counsel to object.

He could figure “Well, it is going to come in anyway on the defense case, I will not object on the prosecution’s case, they will impeach his credibility and I would try for the acquittal, but if not I could always go into Federal Court and obtain a writ of habeas corpus.”

I think in the context of what happened here and the manner in which this confession could have been used and in which counsel may have anticipated it could have been used, he simply may have felt that it would be pointless to raise an objection on the direct case.

And as in this context that I think we have to look at the issue of whether he can now come in to a Federal Court and obtain habeas corpus relief without ever having complied with a reasonable state procedural rule.

Unknown Speaker: Mr. Korman, will you refresh me a little bit on the facts that the confession was used in the direct case and of course it acknowledged the shooting.

Was there something in the confession inconsistent with the self defense theory is that the point?

Mr. Edward R. Korman: Yes, the confession indicated there had been some altercation that the defendant had lost his temper and just shot him, shot the victim.

It was quite clear from the confession, which we set out at page 5 in our brief that it was not self defense and of course it would have been admitted to impeach his credibility regardless of whether the Miranda was complied with.

Unknown Speaker: In Florida, was the testimony of the wife admissible against the husband or not?

Mr. Edward R. Korman: I am not certain she testified as a defense witness.

She was not terribly helpful because she said that she did not see the shooting.

She was not clear as to the events which preceded it.

Chief Justice Warren E. Burger: And she acknowledged that she had said John shot him?

Mr. Edward R. Korman: I believe that she did Mr. Chief Justice.

I believe that she did.

Unknown Speaker: It is pretty difficult for her to avoid it or at least to open the door to have the policeman testified that she said so.

Mr. Edward R. Korman: That is right and even if she had not testified that statement might have been admissible.

Unknown Speaker: Mr. Korman, there was never any question that he shot him.

Mr. Edward R. Korman: No, never any question that he shot him.

That is why I say that it may have been understandable why the defendant’s lawyer did not raise the issue.

Unknown Speaker: But her testimony simply that John shot him without anymore any explanation might tend to undermine his self defense.

Mr. Edward R. Korman: Of course and I think it is important to keep in mind that before he was placed under arrest, which would trigger then the Miranda issue, he had walked up shortly after his wife had said that John shot Willie.

He admitted himself that I shot Willie without any qualifying self defense explanation for it.

Unknown Speaker: The warning came afterwards.

Mr. Edward R. Korman: That is right the warnings came when he was questioned at the station house.

Unknown Speaker: What was his charge?

Mr. Edward R. Korman: He was originally charged with murder in the second degree.

Unknown Speaker: No, it was first degree.

Mr. Edward R. Korman: No, not first degree, it was an unintentional killing as what he was originally charged with and he is convicted that was an even lesser degree of an intentional killing.

And he was sentenced to ten years of which he has now served five and the question becomes why should he now be entitled to habeas corpus relief?

After this court decided Davis v. Unites States, which held that knowing and deliberate waiver standard did not apply in a habeas corpus proceeding were the defendant fail to comply with the reasonable procedural rule 12(b)(2) which dealt with defects in the institution of the prosecution.

The court and I think it is critical that it was after Davis gave this construction to rule 12(f) and in the context of a habeas corpus case, this court amended the federal rules of criminal procedures that is promulgated an amendment, which added to the motions that must be made before trial or be deem waived all suppression motions.

And that procedural rule, which this court promulgated, did not simply go into effect by congressional inaction.

Congress affirmatively adopted and approved that amendment and so it seems clear to us that absence cause to relieve him from the waive of provision, a federal prisoner could not come into a Federal Court and get this relief after Davis and after the amendment of rule 12(b)-3 and we think it is equally clear as a result of this court’s opinion in Francis v. Henderson that a state prisoner cannot do any better than a federal prisoner what have in the face of a reasonable state procedural rule.

And Mr. Justice White raised the question of what would constitute cause to relieve the defendant from the waiver provisions.

And we believe that cause means prejudice in the sense of his right to a fair trial.

In the sense that the habeas corpus statute is really intended to deal with, that is to ensure that an innocent man is not confined to prison.

Unknown Speaker: You do differ then with your colleague.

Mr. Edward R. Korman: That is right and to deal with your point with respect to counsel, we think that the reason that counsel was provided and I think you have to, when you answer the question about the inadequacy of counsel claim that counsel will raise it because it is inadequate.

I think you have to look at in the perspective of what is the purpose of the habeas corpus proceeding.

Unknown Speaker: So you would not open up habeas corpus to claim their claims.

Unless it went to integrity of fact finding.

Mr. Edward R. Korman: That is right and of course Your Honor, to develop in this questioning there was no plain error here.

You cannot look at the record in this case and say that there was any error.

Unknown Speaker: When your counsel claims would be subject to the same.

Mr. Edward R. Korman: Well, that is right.

We think that the same test of prejudice is what that he lose as a result of the failure of his counsel to make this objection, regardless of the reason for it.

Unknown Speaker: And even if any, who should have known enough to object if there is no indication of the evidence is unreliable there should be no federal habeas.

Mr. Edward R. Korman: That is right because I think there are other values that entered the picture when you are dealing with motions that are made years after the trial which could have been made earlier and the question then, particularly when you are dealing with the state procedural rule is what did you lose, as a result of counsel’s inadequacy.

You lost the right to exclude statement that was taken without full compliance with Miranda, but was the statement coerced in the traditional sense, no.

Was it unreliable, no.

Well, then why then should we not give some consideration to questions of finality.

Unknown Speaker: You put in the scales the fact that you suggested earlier, the statement was inevitably going to come in once the defendant.

Mr. Edward R. Korman: I think that also weighs in the scale in this particular case because I think aside from the stipulation that the defendant made that he was not claiming his counsel was inadequate.

I think it suggests that counsel may have made a deliberate decision and I think and I would reiterate that this court would now hold and I do not know whether in this case counsel made a deliberate decision.

If I were to guess I would say he did not, but if this court would now hold that in a case just like this, federal habeas corpus is available then there would be no incentive for the defense lawyer to make the objection because he knows it has got to come in anyway to impeach the credibility of his defendant.

If the defendant does not take the stand, he is surely going to be convicted.

So why make the motion if you could not get another crack at the apple pie by obtaining habeas corpus rule.

Unknown Speaker: May I ask one other question about the impeachment point you made earlier.

Did in fact the prosecutor use the statement to impeach the defense testimony?

Mr. Edward R. Korman: I believe that he did.

Unknown Speaker: He did, he did not mention any in your brief.

Mr. Edward R. Korman: It has been a little bit of time since I read the complete --

Unknown Speaker: Your brief does not identify a contradiction between the defense testimony and the statement.

You say it might have been used for the purpose, but I did not find it in the brief.

Mr. Edward R. Korman: Well the defendant said, I believe in his confession that Gilbert came into his trail, was playing around with the gun, he told him to put the shotgun down so Willie put it down and went into the yard.

Respondent said in his confession that he followed him out to the yard that Willie turned around and patted his butt at him like this and then shot him, which is completely inconsistent with the testimony that we have set out at page 7 and 8 in our brief in which he purports to claim that he was afraid that he shot him because he was afraid that he was going to come running back at him and attack him in some way.

I mean they are completely inconsistent.

There is just one more point that I would want to make.

We would not necessarily be making the same argument and I think it is important to make this point if we were dealing with the claim that the confession was involuntary as a matter of fact, that this was a traditional involuntariness argument.

Because in cases like that there is always the element that an involuntary confession may be unreliable and so that when you get into the context of a claim of true involuntariness then another question arises, perhaps that an innocent man maybe convicted.

In that context we would think that if there was no other evidence, except the coerced confession, which was the case in Fay v. Noia.

There was a coerced confession obtained by the most blatantly improper and unconstitutional means.

There was not a shred of other evidence in the case.

Then we would think that that might be an appropriate case to excuse a procedural default and perhaps Florida would under those circumstances as well.

I think that particularly apposite here, and we quoted at length in our brief as this court’s opinion in Jenkins v. Delaware.

If you will recall in Johnson v. New Jersey the court said that Miranda would be applied retroactively to all trials which took place after the date of its decision.

In Jenkins v. Delaware, the court said well that did not apply to retrials where the conviction had been reversed after Miranda.

And the defendant was scheduled to be tried again and the reasons that the court gave are really the basic reasons why we believe that habeas corpus should be denied in this particular context.

And that is the court said that when the trial had not yet commenced, it was relatively close in point of time to the date that the crime was committed.

That law enforcement officers could attempt to reconstruct their case while memories were still fresh.

But when you were dealing with a conviction that was reversed probably years have gone by, much more difficult to reconstruct the case particularly where the prosecutor had relied on the confession as an essential part of this case, so that the court said for these reasons, even though Miranda applies to trials that took place after the date of the holding, we are not going to apply it to retrials.

And those same underlying considerations of policy apply equally here.

But the court said, the defendant can still take advantage perhaps of the rule that if they could show that his confession was truly involuntary.

As a matter of fact, then maybe he can get relief and that is the basic analysis here.

So that I think that it is quite clear that the both the District Court and the Court of Appeals erred in granting habeas corpus relief in the context of the case like this.

I wonder Mr. Chief Justice if I could reserve my remaining time for some rebuttal.

Chief Justice Warren E. Burger: Very well.

Mr. Casler.

Argument of William F. Casler

Mr. William F. Casler: Mr. Chief Justice, may it please the court.

I am court appointed to represent John Sykes.

My name is Mr. William F. Casler, I am from St. Petersburg Beach, Florida.

First of all, both the petitioner and amicus have totally ignored Florida’s rule, a very specific rule that has to do specifically and only with suppression of confessions and admissions, no other evidence.

We have other rules for suppression of other evidence, our rule that we hear on today, the 3.190 has to do specifically with admissions and confessions and it is very important.

This rule was adopted and has been the practice of Florida for years since 1919 in the Supreme Court of Florida Case Steiner v. State.

The rule follows that case law and not only that, but Florida is adopting July 1st of this year an evidentiary rule which follows this explicitly.

Now, this rule says upon motion, it is in my brief, both the federal rule and the state rule are side by side at page 2 and there is a state rule and on page 3 is the federal rule and they are totally inconsistent with one another and totally distinguishable.

The Florida rule says upon the motion of the defendant, and then it says, and is disjunctive.

It says or upon its own motion the court shall suppress any confession or admission obtained illegally from the defendant and I think this is my argument to the District Court, it is my argument to Fifth Circuit.

In the Fifth Circuit, the judgment of that court, the opinion of that court followed this rule.

Unknown Speaker: Does not that assume that someone is going to call the trial judge’s attention to the matter by an objection?

Mr. William F. Casler: No, sir I do not think so.

Unknown Speaker: It does not preclude the judge from acting on his own, but you suggest that there is no consequence of the failure to draw the matter to the court’s attention.

Mr. William F. Casler: We have absolutely nothing in our rule that says if you fail to do this defendant, you have waived anything.

Unknown Speaker: Well, does not it at least suggest that there has to be some evidence produced before the judge which would motivate him to act on his motion?

Mr. William F. Casler: A confession coming in and admission coming in is enough.

The court shall present a confession or admission obtained illegally from the defendant, now how does the court know that unless there is a hearing to find out if it was a voluntary confession?

Unknown Speaker: Well, if it said in just the words you recited you might have a pretty good argument as I read it, it does not say in quite those words.

Mr. William F. Casler: Alright, this is a practice in Florida.

In the circuits that I practice in, this is the practice.

The defendant, if he does not do anything the judge has a hearing automatically.

Unknown Speaker: Why did not the judge not have a hearing on this case?

Mr. William F. Casler: This rule came in 1972.

This defendant went to trial in 1972.

Unknown Speaker: Before the rule came?

Mr. William F. Casler: No sir, shortly six months after this rule went in.

Unknown Speaker: You say the rule was just too new for the judge to know about it.

Mr. William F. Casler: It could have been, I do not know.

When we get to the cases on this, it is obvious and the new law, the new evidentiary rule that is coming in, in fact well if you will turn the page 26 of the brief, it will.

In July 1, 1977 this year -- now this is a legislative act.

The rule was the Supreme Court of Florida and integrated bar are rule 3.190 was by the Supreme Court of Florida.

Now, we have got a legislative act that strengthens the rule that I have recited.

This act shall apply to both civil and criminal cases brought after the effect of the day of this act.

Nothing in this section shall preclude a court from taking notice of fundamental errors, affecting substantial rights even though such errors were not brought to the attention of the trial judge.

Unknown Speaker: Does that tell us very much?

You do not need a rule or a statute to have the judge have authority to take notice of something that he thinks affects the fairness of the trial.

It does not say the judge shall hold a hearing as I thought you admitted, that he shall not be prevented even in the absence of a motion from acting on his own.

Mr. William F. Casler: The way I construe the rule and our rule in Florida, is that the defendant shall do this on his motion.

Or the judge will do it on his own motion to see that no admission or confession comes in illegally.

Unknown Speaker: But Mr. Casler, why have the motion by the defendant at all if the judge is obliged to do it?

Mr. William F. Casler: I think that is a good point and I think that is exactly where it should be.

Unknown Speaker: I am asking the question, you said the judge must do it.

Mr. William F. Casler: Yes sir.

Unknown Speaker: Well, why does the rule say upon motion of the defendant or the judge?

Why not just say the judge will do it.

Mr. William F. Casler: Because the Case Law says that on page 19 of my brief and this is the 1919 case and it is still a law of Florida.

It had been followed all these years.

It is present, still being followed and it is a basis for this rule.

In the stand of this state, the question of whether admissions or confessions are made freely involuntary for the court to determine, to enable it to do this there should be a preliminary investigation by the court and this examination should be made in the absence of the jury.

While we think it is best for counsel to interpose objections to the introduction of evidence, of admissions or confessions, in order the court may make the preliminary investigation to determine its admissibility, that does not relieved the trial judge of the duty.

When evidence of this character is sought to be introduced to satisfy himself that the admissions were freely and voluntarily made before admitting them.

Unknown Speaker: Of course in a 1919 case, I presume the Supreme Court of Florida was talking about voluntary confessions in a traditional non-coerced sense, rather than just in terms of confessions, which were made without proper Miranda Warning.

Mr. William F. Casler: Well, I would imagine, I do not know.

Unknown Speaker: It would have had remarkable foresight, let us say, if they have been talking about the last.

Mr. William F. Casler: Well, I think it probably may have had a remarkable foresight, it seems quite fair to me what I have just said.

Unknown Speaker: That has not been the rule in Florida since 1919.

What happened about the Chambers’ case that came to this court where we had put that rule in that?

Mr. William F. Casler: We are here on this case too, Your Honor.

Unknown Speaker: Well, you are back in 1919 and I want you to bring you a little closer to the Chambers’ case.

Mr. William F. Casler: All I can say is that there was error in the Sykes case that should have been done this way.

If it had not been done this way, we would not be here.

Not only that, if Florida followed this rule there would never be any habeas corpus on the voluntariness of a confession.

Unknown Speaker: I understand under the Florida rule all you have to do is to say one word, two words, “I object.”

Mr. William F. Casler: That is true.

Unknown Speaker: Is that what Florida said?

Mr. William F. Casler: And if you do not say it the judge has a hearing.

Unknown Speaker: Florida says the only thing necessary to get a hearing, a full blown hearing, is to say “I object.”

Mr. William F. Casler: That is true.

Unknown Speaker: And it would be too much to expect.

Mr. William F. Casler: No, sir, no Your Honor.

But if you fail to do that the court has a hearing.

Unknown Speaker: Well, are you arguing Mr. Casler that the constitution requires the judge to hold a hearing on his own?

Is that argument here?

Mr. William F. Casler: No, the petitioner was giving some guidelines and I am giving what I feel are guidelines based on our rule.

The amicus is here on a federal rule and a federal rule is totally different.

It says that if you do not do this, it is waived and then you can come in and show cause, our rule does not say that.

Unknown Speaker: Well, let us see, are you saying that looking at page 3 of your brief, subdivision 3 of your state rule, the court shall receive evidence and the issue of fact so forth?

Mr. William F. Casler: Yes.

Unknown Speaker: Now are you saying that under your rule, the practice has been and is that whenever the government or state offers an admission or a confession automatically the trial judge must say, “Stop, we will have a hearing out of the present situation?”

Is that what you are saying?

Mr. William F. Casler: Yes, I am.

Unknown Speaker: That is what your rule means?

Mr. William F. Casler: And I am saying that is what the rule says and does and that is why our circuit follows this.

Unknown Speaker: Are you arguing this just to explain why he did not object or are you arguing that there is a federal constitutional requirement that a judge absent any objection conduct a hearing, which are you arguing?

Mr. William F. Casler: I am arguing this to counter what the amicus curiae has said, they are trying to relate Federal Rule 12 to what we were operating on.

Unknown Speaker: What has either approach got to do with our question here is whether the Federal Constitution has been violated, is it not?

Mr. William F. Casler: Yes sir.

Unknown Speaker: How was it violated here?

Mr. William F. Casler: It was violated by allowing a confession to come in without any determination that anytime, anywhere as to voluntariness of that confession.

Unknown Speaker: So do you argue that this constitution requires the judge to hold a hearing on his own absent any objection?

Mr. William F. Casler: Yes, I do.

Unknown Speaker: Well, now do you think in this kind of a case anyway, if you tie the objection of the constitution you would say this is contrary to the Fifth Amendment if you were objecting, would you not?

Mr. William F. Casler: I would absolutely.

Unknown Speaker: And that it say that it is compelling a person to testify against himself?

Mr. William F. Casler: That is correct.

Unknown Speaker: Normally, in any trial you make a person claim his Fifth Amendment objection, you always do, do you not?

If he thinks he is coerced into making an incriminating statement, he should stay his objection, that is a normal Fifth Amendment rule, is it not?

Mr. William F. Casler: That is true.

Unknown Speaker: Why should it be any different here?

Mr. William F. Casler: I consider this rule the confession and admission coming in no different than the waiver of a jury trial or anything else.

Unknown Speaker: Yes, but this is a Fifth Amendment case.

This is a Fifth Amendment objection and normally you make people claim their privilege.

Mr. William F. Casler: When they are witness and they take the Fifth Amendment if you are asking the question.

Unknown Speaker: Well, no that person is claiming his privilege, would be claiming his privilege not to have his own statements used against him.

Mr. William F. Casler: That is possible.

I have never asked the defendant, do you want to take the Fifth Amendment, when in a trial, I do ask him whether or not they want the confession to come in and if they do we go to the judge and we tell the judge.

Unknown Speaker: In your own practice have you tried cases and the state offers an admission or confession, what do you do?

You personally, what do you do?

Mr. William F. Casler: What sir?

Unknown Speaker: In your own practice in the state offers a confession or an admission, what do you do?

Mr. William F. Casler: I will file a motion to suppress five weeks before trial or the day I get it.

I file a motion to suppress.

Unknown Speaker: You would do what this trial judge or this trial lawyer did that.

Mr. William F. Casler: No, I would not.

Unknown Speaker: Even if you knew that you were going to put your man on the stand and testify and under Harris v. New York, he could be impeached with it.

Mr. William F. Casler: I might have tried it, it would not have worked, Your Honor.

In our Circuit the judge would have a hearing.

Unknown Speaker: Now, you have been talking about the 1919 Florida case.

Did this case go to the Supreme Court, to the appellate review in Florida?

Mr. William F. Casler: Never, if this is a Supreme Court of Florida case.

Unknown Speaker: Which case?

Mr. William F. Casler: The Steiner case, the 1919 case.

Unknown Speaker: Was there any appellate review of the case we are arguing here today before you went to federal habeas corpus?

Mr. William F. Casler: The defendant from jail, from prison filed a motion to vacate with the trial judge.

It was denied, no opinion.

He filed a habeas corpus with the District Court of Appeals for the Second District in Lakeland, Florida.

It was denied with an opinion.

The opinion said we already considered these matters when it was here for appeal.

He filed a habeas corpus with the Supreme Court of Florida.

It was denied and said they did not have jurisdiction.

I do not know why.

Unknown Speaker: Under Florida law has not the highest court of Florida said something about this case that is subsequent to 1919?

Mr. William F. Casler: Only that they denied habeas corpus because they lacked jurisdiction.

Unknown Speaker: Whether the District Court of Appeal considered the case on direct appeal.

Mr. William F. Casler: Yes, but not on this point.

The attorney that handled the trial was appellate council and he did raise this on appeal.

Subsequent to that time after the defendant from prison filed a motion to vacate with the trial judge, then he went back to the District Court that handled the appeal and did a habeas corpus and the court entered a very short opinion denying it and said that had been considered on appeal.

Then he went to Supreme Court of Florida and they denied it for lack of jurisdiction.

Unknown Speaker: Along your theory Mr. Casler, suppose this man had been sentenced to 35 years and you came in 25 years after the trial with exactly the habeas corpus that we have for us now.

Your argument is that the Federal Court should do just what it did here even after 25 years.

This is only five years, is not it now?

Mr. William F. Casler: He has been sentenced 10 years, he has been in prison six years, he is supposed to be out within six months.

I suppose so.

Mr. Corces was giving guidelines to the court.

I cannot see why there is not an automatic hearing and there would be no habeas corpuses for voluntariness in any District Court, in any Federal District Court, it would have been done.

I just cannot see why this cannot be done in a trial court automatically and there would be no problem.

Unknown Speaker: Except you say the rule required the Florida Court to do it automatically and they did not do it.

Mr. William F. Casler: That is correct.

Unknown Speaker: So even if the state were to provide what you say it has provided by rule, if the trial court failed to follow the rule there would still federal habeas.

Mr. William F. Casler: That is true.

The federal rule, I am not going to delve into that, but it is totally different from our rule.

It has to do with the suppression of all evidence.

This rule had resided that the court has to do specifically only and with confession as drawn with particularity.

The federal rule has to do suppression of all evidence.

It also refers to, not automatically it is waived if you do not raise it.

We have nothing in our rule to show this at all.

Now, getting to the --

Unknown Speaker: Mr. Casler when your present plans, the plan where you are appointed to represent here, when he went into the subsequent proceedings after trial, he has never called the attention of any court until now to what you claim is the Florida rule.

Does that mean that his counsel on trial and his separate counsel on appeal was not aware of what you say is the Florida practice?

Mr. William F. Casler: I do not know why the counsel trial did not raise this issue at trial.

I do not know why he did not raise this issue on appeal.

I know that when I was appointed in the District Court, I went to the rule immediately because that was the practice.

In the Fifth Circuit I went to the rule immediately.

At the Fifth Circuit in my opinion is correct.

They say that there is a responsibility and the trial judge could have a hearing.

Unknown Speaker: Two other Florida lawyers whom your client has stipulated to have been effective counsel apparently were not aware of this practice or the rule.

Mr. William F. Casler: Now that was in the same counsel that handled the trial did the appeal and that was in 1972 when this rule came in, whether he knew the rule or did not know the rule, I do not know.

Unknown Speaker: He might have realized that it would be very difficult for him to explain to the court why he did object.

Maybe that was a reason he did not raise it on to you.

Mr. William F. Casler: It could have been, I really do not know.

Unknown Speaker: What we speculated.

Mr. William F. Casler: Now in Florida, Mr. Corces says that if you do not raise this issue in Florida then you have waived it.

You cannot bring collateral attack.

There is a myriad of cases that I have cited o my brief on page 15 and 16 that are contrary to this.

The Florida holding is a procedural default of failing to appeal is not equivalent to an expressed waiver of a constitutional right and will not preclude collateral attack of an unlawful conviction.

I am not going to read all these cases they all say the same thing that holding that failure to object at the trial, to a denial of a fundamental right does not act as a procedural default to stop collateral attack.

It is not necessary for defendant to object at trial at all.

There are at least 10 to 15 cases on page 15 and 16 that hold that.

Unknown Speaker: Do you think there should be a different approach to this kind of case where there was no challenge to the commission of the act so that is the shooting, but only on plea and confession and avoidance that is self defense?

Mr. William F. Casler: I do not know.

Unknown Speaker: Is it not a perfectly logical thing for a man who is going to say “Yes, I shot him but I did it in self defense,” to fail to object to the policeman testifying to his statements.

Mr. William F. Casler: Except that the statement that he made does not tie into self defense at all as the Fifth Circuit pointed out the facts.

In their opinion it said that the facts of what he --

Unknown Speaker: What self defense assumes an admission of having performed the act is it not?

Mr. William F. Casler: No question about it, he said “I shot him” and then he went into a long detail that had nothing to do with self defense in the confession.

Unknown Speaker: Do you think what the state courts did here are contrary to cases that you cited at the bottom of page 15?

Should the state courts have entertained a collateral proceeding?

Mr. William F. Casler: Absolutely.

Unknown Speaker: How are we to understand the state law here when apparently the latest announcement of state law is that such claims that are not presented at trial are not available on state habeas, which is what happened here.

Mr. William F. Casler: That is correct.

The habeas in the appellate court of Florida is the District Court in Lakeland.

The defendant did file there from jail his own motion with that court.

That court did enter an opinion that had cited in the brief and said that they had already considered this.

That is what the opinion says.

Now, the petitioner and the amicus have pointed out that the District Court that made that opinion made a mistake.

Well, I do not know whether the District Court made a mistake in that opinion or not.

Unknown Speaker: You appeal the denial of state habeas?

Mr. William F. Casler: Yes, appeal the denial of state habeas, no.

The defendant went to the District Court of Florida and then he went to the Supreme Court of Florida.

Then he filed in the District of Court of the federal government, the United States District Court.

That is when I was appointed.

Unknown Speaker: I understand.

Mr. William F. Casler: Up until that time he had no counsel whatsoever in his habeas proceedings?

Unknown Speaker: But did he take his state habeas claim to the State Supreme Court?

Mr. William F. Casler: Yes.

Unknown Speaker: The hearing was denied?

Mr. William F. Casler: Denied for lack of jurisdiction that is all the statement that was in the opinion, denied for lack of jurisdiction.

Unknown Speaker: Did it go to an intermediate court?

Mr. William F. Casler: You mean to the Federal Court?

Unknown Speaker: No, did it go to an immediate appellate court?

Did it go to the Florida Court of Appeals?

Mr. William F. Casler: That was the Supreme Court of Florida.

Unknown Speaker: It went to the District Court of Appeals too, did it not?

Mr. William F. Casler: The District Court of Appeals is a lower court.

Unknown Speaker: Yes.

Unknown Speaker: But Justice White is referring by an intermediate state appellate court.

Mr. William F. Casler: Well, they have made a ruling and entered an opinion and denied it.

Then it went to the Supreme Court of Florida, which is the highest court, they summarily denied it saying they did not have jurisdiction.

Unknown Speaker: Your claim certainly includes an assertion that the Florida courts did not follow the controlling Florida law.

Mr. William F. Casler: Absolutely.

Unknown Speaker: Mr. Casler, did you negotiate the stipulation that trial counsel who also took the appeal, I understand on direct review, I was confident.

Mr. William F. Casler: Did I prepare it?

I prepared it in the --

Unknown Speaker: I know, did you negotiate it?

Did you advise your client?

Mr. William F. Casler: Yes, Your Honor.

Unknown Speaker: Why?

Mr. William F. Casler: I explained to him what the competency was of an attorney, and what the competency was not.

Unknown Speaker: Why would you have not been on the case before, why would you want to stipulate something like that?

Mr. William F. Casler: The Judge Hodges, a District Court judge in Tampa.

Unknown Speaker: That is a Federal District Court.

Mr. William F. Casler: Federal District Court, told that defendant that without that he had to go back to the state courts and he said, “I am not going back to state courts, I have been in jail two years.”

Unknown Speaker: You exhaust state remedies on his counsel.

Mr. William F. Casler: He said I am not going back to the state courts and I said, “We are going to wait, Judge Hodge is going to let you come in here as to sign a stipulation that you are competent with a counsel” and I explained to him what he was doing.

He decided to do that.

Unknown Speaker: You acknowledged that on rebuttal or on cross examination of the defendant after he had taken stand that his statements could have been established under Harris v. New York by way of impeachment.

Mr. William F. Casler: Yes, but I do not know if he had not made the statement the statement that he made.

Unknown Speaker: Let us assume for the moment that the government had not put in these admissions to the police in its case and chief.

Do you agree when he once took the stand the state could impeach him?

Mr. William F. Casler: Yes, I do certainly.

But there again, I feel that it would have to be that the statements were voluntarily made not coursed or taken under some other circumstances, but then the statements could have been used.

The fact of procedural default, I have set out as best I could with all the cases in the State of Florida that we just, the cases that relate to the procedural default, I do not believe I have anything more to say.

Thank you.

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

Rebuttal of Charles Corces, Jr.

Mr. Charles Corces, Jr.: May I clarify a couple of things to this court?

First the rule of procedure has been in Florida since 1968 not 1972.

It is cited in the brief as 1972 rule, but that rule has been in effect in Florida since 1968, but since every year Florida seems to publish the rules of procedure I cited as a 1972 rule.

Chief Justice Warren E. Burger: Do you have a Florida case that says if you do not make it you waive it?

Mr. Charles Corces, Jr.: Yes, sir it is cited in the briefs.

One other point, I have went through every case cited by the respondent in his brief.

There is not one case that holds that it is not a waiver if you fail to object.

Not one case.

Unknown Speaker: What do you do with Henry v. Mississippi?

Mr. Charles Corces, Jr.: Henry v. Mississippi?

Unknown Speaker: That was a procedural default at the trial, claimed default at the trial.

Mr. Charles Corces, Jr.: But in Henry v. Mississippi, I believe this court remanded for a determination as to whether --

Unknown Speaker: What was the rule, what was the basis for its remand?

The basis for its remand was that it must be determined whether there was deliberate bypass.

Mr. Charles Corces, Jr.: By counsel?

Unknown Speaker: Yes.

Mr. Charles Corces, Jr.: Yes, sir.

Unknown Speaker: Well, what do you do with that?

Mr. Charles Corces, Jr.: Well, sir I submit that to that extent the better guideline is in these.

Unknown Speaker: So you say for you to win you have to chew up Henry v. Mississippi a little bit?

You said you did not need to overrule a holding of Noia, now how about Henry?

Well, I think Henry, if it please the court, was primarily concerned with the adequate state ground.

Henry was concerned --

Mr. Charles Corces, Jr.: Well, it is the same question in a way I think.

Unknown Speaker: I thought Henry said that the problem with the fact situation was you did not know if there was a little bypass or not.

In fact but the rule was still delivered bypass.

If my memory serves me, ultimately, the Mississippi Supreme Court found that there had not mention.

Mr. Charles Corces, Jr.: So far as counsel was concerned that is correct sir.

Unknown Speaker: But was Henry a habeas case?

Mr. Charles Corces, Jr.: No sir, it was direct certiorari, direct habeas.

Unknown Speaker: That is state ground question.

Mr. Charles Corces, Jr.: It is an adequate state ground question, yes sir.

Unknown Speaker: Which Fay v. Noia said was a different situation?

Mr. Charles Corces, Jr.: Yes sir, Fay v. Noia says that detentions implicit is efficient.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.