HANKERSON v. NORTH CAROLINA

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Argument of Lawrence G. Diedrick

Chief Justice Warren E. Burger: We will hear arguments next in 75-6568, Hankerson v. North Carolina.

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

Mr. Lawrence G. Diedrick: Mr. Chief justice, may it please the court.

I am here representing Johnny Hankerson who is the petitioner in this case, to petition this court for certiorari from a Supreme Court decision in North Carolina against him.

The question we content and present it here is where the Supreme Court of North Carolina erred in not applying Mullaney retroactively.

Since the doctrine of Mullaney as relates to petitioner?s case greatly affected the fact finding process, the reliability of the fact finding process.

The State Court held that by raising the decision of Mullaney, the Due Process Clause of the Fourteenth Amendment prohibits the use of their long standing rules in homicide cases, that a defendant in order to rebut the presumption of malice must prove to the satisfaction of the jury that he killed in the heat of sudden passion and to rebut the presumption of unlawfulness that he killed in self defense.

They held that those instructions as they were given in our case violated the concept to Due Process announced by this court in Mullaney.

However, they decline without further guidance from this court to apply it retroactively.

The petitioner contends that the main determination to be made by this court in whether or not to give Mullaney retroactivity is whether or not the major purpose of the new constitutional doctrine as to over come an aspect of a criminal trial that substantially impairs its truth finding function.

The petitioner contends that in order to do that this court must closely scrutinize the major purpose which it held Mullaney to serve.

This court in its opinion on Mullaney relied heavily on Winship.

This court further, in Ivan held Winship to be retroactive.

However, the petitioner contends that this court in its own language in Mullaney, said that the rule that -- whether the major purposes of Mullaney was to protect the integrity of the requirements of the burden of proof beyond a reasonable doubt being carried by the prosecution in criminal cases.

It went on further to say that this major purpose to be served by this rule was at even greater purpose than that which was set forth in Winship and I quote from Mr. Justice Powell?s opinion at Page 700.

?Not only are the interests underlying Winship implicated to a greater degree in this case, but in one respect the protection afforded those interests less here".

In Winship the ultimate burden of persuasion remained with the prosecution although the standard had been reduced to proof by a preponderance of the evidence.

In this case, that is in the Mullaney case, by contrast that state has affirmatively shifted the burden of proof to defendant.

The result in a case such as this one where the defendant is required to prove the critical fact in dispute is to increase further the likelihood of an erroneous murder conviction.

Therefore, the petitioner contends that this Court has already held in its decision of Mullaney that the major purpose to be served by that rule was to correct an error in the fact finding process, because they have stated this to increase further likelihood and rated as to do away with the increase of the further likelihood of an erroneous murder conviction.

Of necessity in determining whether or not to apply any of these new constitutional rules retroactively, the court must look at prior decisions and whether or not they have given those decisions perspective only or retroactive applications.

However, the petitioner in this case contends that you need only look to Ivan as far as it relates to the case of the bar, because of the fact that Mullaney says that the interest to be protected in Mullaney itself are greater than those on Winship.

That, here, it is not only proof beyond a reasonable doubt to be protected but further that it places the burden solely on the state to carry this burden.

That is to say in the Winship case it was proved by a preponderance of the evidence but at all time that proof rested solely upon the prosecution.

In Mullaney, it removes that burden of proof or the main rule which was corrected by this court in Mullaney, move that burden of proof or shift to that burden of proof to the defendant.

In the main case, or the Mullaney case, this court stated that in main itself, the prosecution was required to prove the absence of self defense beyond a reasonable doubt.

Now, in North Carolina until the Hankerson decision, that is the case which is at the bar, the defendant himself had to satisfy the jury that he did act in self defense.

That is to say that the burden of proof was shifted from the state to the defendant to come forward and satisfy the jury of the four things necessary for them to return the verdict of acquittal on the grounds of self defense.

So, the petitioner honestly contends that while a review of all of the other cases involving retroactivity and being applied perspectively is important.

This court need look no further than the language of Mullaney and applying it with Ivan and Winship.

Unknown Speaker: In this case under the prior North Carolina Law until changed by the Supreme Court in this case, there were two separate matters in which the purpose of persuasion at least was shifted to the defendant.

First, the absence of malice which would reduce the homicide to manslaughter.

Is that correct?

Mr. Lawrence G. Diedrick: From second degree murder to manslaughter.

Unknown Speaker: Second, the question of self defense which if true or if the jury was satisfied by the defendant would wholly acquit the defendant.

Is that correct?

Mr. Lawrence G. Diedrick: Yes, Your honor.

Unknown Speaker: And the North Carolina Supreme Court that treated them both alike and as both covered by Mullaney, did it not?

Mr. Lawrence G. Diedrick: Yes it did.

Unknown Speaker: And both were involve in this particular case?

Mr. Lawrence G. Diedrick: That is correct, Your Honor.

Unknown Speaker: Yet Mullaney did not involve any matter that would have been on complete defense to any charge of homicide, did it?

Mr. Lawrence G. Diedrick: It did not but I would argue that it addressed self defense.

Unknown Speaker: That is self defense as in this case or insanity as in the Ivan case or someone.

Mr. Lawrence G. Diedrick: It did not directly but I would argue that it did direct itself to that by stating that main had already had the rule which required the state to prove beyond a reasonable doubt the absence of self defense.

Unknown Speaker: But it did not say that that rule is constitutionally required, did it?

Mr. Lawrence G. Diedrick: It did not, but it analogized it to the rule of proving heat of passion and held that to be the way, main had it constitutionally prohibited.

Unknown Speaker: One involves elements of the offense that state has to prove and the other involves an affirmative defense to the commission of any crime and that would be duress or insanity or self defense depending upon the crime.

Mr. Lawrence G. Diedrick: I would argue differently, Your Honor, I would tell the court that one of the necessary?

Unknown Speaker: But as a matter of that is correct, is it not?

One does involve mitigations of the degree of the homicide and the other does involve a complete exoneration of any criminal offense.

That is correct.

Mr. Lawrence G. Diedrick: That is correct Your Honor, but they both require the absence of elements in order to rebut the presumption of unlawfulness and unlawfulness is an element of homicide in North Carolina.

Unknown Speaker: But unlawfulness is an element of manslaughter.

Mr. Lawrence G. Diedrick: That is correct, Your Honor.

Unknown Speaker: There is no unlawfulness if it is self defense.

There is no unlawfulness if it is a killing in a course of warfare or legal execution or by somebody who is insane.

There is just no unlawfulness, correct?

Mr. Lawrence G. Diedrick: That is correct, but by statutory and by case law definition of homicide in North Carolina, an element of it is not the lack of insanity whereas an element of the offense in North Carolina is unlawfulness.

Therefore, I would argue to you that the judgment of acquittal or virtue a plea of self defense is a negative of a necessary element.

That is the elements are both malice and unlawfulness, not the lack of insanity.

That is not an element.

Both of these address themselves to defenses involving these elements and I would argue to you that the North Carolina Court in adapting Mullaney and making it applicable to our law properly did so because it says that this element of unlawfulness used to not be inferred but it was actually presumed and that it was up from the use of a deadly weapon and it was up to the defendant to rebut that presumption through self defense.

And that the elements of malice was actually presumed from the use of a deadly weapon and this had to be rebutted by the defendant through the use of his defense of heat of sudden passion.

Unknown Speaker: Mr. Diedrick, do you think this sudden passion point is here at all?

Mr. Lawrence G. Diedrick: Do I believe it is properly raised by the facts?

Unknown Speaker: As I understand your Supreme Court on that particular point, the court said is a matter state law, there wasn?t any evidence at all of the heat of passion and so the issue was not even before them.

Mr. Lawrence G. Diedrick: I did not understand it to be that way, your Honor, I thought they held that?

Unknown Speaker: It says as a matter of state law, we know that there is no evidence in this case of the killing in the heat of passion on sudden provocation, therefore, this issue is not properly presented as was in Mullaney.

There could not consequently be any Mullaney error prejudicial to the defendant on this aspect of the case.

Do you say that it is unconstitutional for a court to demand at least that the defendant present some evidence, at least present the issue?

Mr. Lawrence G. Diedrick: Well, I am arguing that there was that issue presented by the facts in this case.

Unknown Speaker: I know but they ruled it or they were not.

Let's just -- what I am really asking you, suppose the court was right here that defendant had not presented any evidence of it but that he had to or his heat of passion defense would not be any good.

Would that be constitutional?

Mr. Lawrence G. Diedrick: I think it was, I think the Mullaney decision said when properly presented.

It has to be facts.

Unknown Speaker: Now you are on the heat of passion point, the only way it could properly be here is if we disagreed with your Supreme Court on the facts.

Mr. Lawrence G. Diedrick: That is correct, Your Honor, but I would argue to the court that defense certainly should be available or actually not the defense, the lack of it should be available when a knife is put at somebody?s throat.

That certainly should be fact sufficient from which heat of passion could arise.

Unknown Speaker: Well, your Supreme Court did not think so.

Mr. Lawrence G. Diedrick: Well, I would disagree with the Supreme Court.

Unknown Speaker: Are you saying that defendant does not have to present any evidence of any kind with respect to the heat of passion issue?

Mr. Lawrence G. Diedrick: I would say that if the state?s evidence in itself would present facts from which this could arise but here the main thrust of the state?s case was a exculpatory statement.

That is statements made by the defendant himself, his confession, his statement of how the incident occurred in his own statement brought forward.

I would argue the defense was self defense and the presence of the heat of passion, therefore, the absence of malice which would require these to be properly submitted to the jury.

To answer your question, certainly there could be instances and there are many instances in which these two things are not really an issue.

That the facts do not properly raise it but certainly the state?s evidence, not only in this case but in many cases brings those forward.

Unknown Speaker: So you rely on the state?s evidence not on any facts introduced on behalf of the defense?

Mr. Lawrence G. Diedrick: I would rely on both, but I would say that the state?s evidence in this case properly brought forward those issues.

Unknown Speaker: And you disagree with finding of the North Carolina Court as pointed out by Justice White?

Mr. Lawrence G. Diedrick: Yes, I disagree because I think that as I answer Justice White, that any time you have a factual situation that shows a knife being put at somebody?s throat, certainly the offense of heat of passion could probably be raised.

Unknown Speaker: If we should agree with the finding of the North Carolina Supreme Court, would the retroactivity issue still remain in this case?

Mr. Lawrence G. Diedrick: I would argue it would because it was self defense.

Unknown Speaker: But we have never held the Mullaney (Inaudible) applied to self defense?

Mr. Lawrence G. Diedrick: I would say the language is the same, if it please the court, it is negating of a necessary element, and in Mullaney.

Unknown Speaker: Mullaney is retroactive because of Winship.

Mr. Lawrence G. Diedrick: In Mullaney itself they spoke of the fact that main in the past, place the burden on the state to prove the absence of self defense from the evidence of beyond reasonable doubt, and saying that absence of the heat of passion would be no greater burden.

Unknown Speaker: So your view is that the retroactivity issue remains in any event?

Mr. Lawrence G. Diedrick: Yes sir.

I think the main thing that I am trying to point out is that when you talk about insanity or alibi or anything like that, you are not talking of elements, you are not speaking of elements of the offense.

Both malice and unlawfulness are elements of the offense of homicide which the state by its charge in this case placed the burden on the defendant to satisfy the jury of the absence of, and that is why we would argue it is constitutionally prohibited.

It would have necessity in light of Ivan and Winship have to substantially affect the fact finding process and therefore fortunately be given full retroactivity.

Chief Justice Warren E. Burger: Mr. Hensey.

Argument of Charles M. Hensey

Mr. Charles M. Hensey: Mr. Chief Justice and may it please the court.

The State of North Carolina, of course, is quite concerned over the reach and the scope of your decision in the Mullaney case.

The State of North Carolina feels that its Supreme Court was essentially correct in its ruling on the retroactivity portion of the Mullaney opinion.

The state feels that the Mullaney opinion should not be applied retroactively by this court.

Now, the state recognizes, of course, the rule that when the primary purpose of the new constitutional doctrine is to substantially improve the reliability of the fact finding process that more often than not you have held that type of decision to be retroactive.

However, the State of North Carolina would argue in this case that your Mullaney decision because it was as we say on the fringes more or less of the question of how much proof is required in a criminal case and who has the burden of persuasion and what not, that this decision and the changes that it made in the rules relating to burden of proof on affirmative defenses has not brought such a dramatic improvement in the fact finding process so as to require the automatic retroactivity of this decision.

The state of course has cited the court to certain psychological studies in its brief concerning jury perceptions in criminal cases and where in many instances, the juries have been quite reluctant to convict and have a much higher standard beyond a reasonable doubt and have a much higher standard in where self defense is right, and of course as this court pointed out not too long ago in the death penalty cases, that jury nullification of death penalty or cases involving the death penalty in many instances has brought about the change that society recognizes now in the imposition of the death penalty.

The point, I am trying to make of course is that juries are very knowledgeable and very sensitive and are quite perceptive and the state feels that the changing of the rules, the burden of persuasion by the Mullaney case has not significantly improved the fact finding process.

Therefore, the state feels that this court can quite legitimately and properly consider the other two factors of justified reliance on the part of the state and the impact that retroactivity would have on both State of North Carolina and on other states similarly situated.

Of course, the State of North Carolina feels that a retroactive application of Mullaney would have an almost disastrous impact on North Carolina.

There are something over a thousand people currently in the North Carolina prisons involving murder type prosecutions, while perhaps not all of them would ultimately prevail nevertheless, surely petitions would have to be heard either of a post conviction type or a federal habeas corpus type.

The expense in both dollars and cents and prosecutorial time in dredging up old cases that everybody thought had long been in repose, some 15 or 20 years old.

The difficulty of finding the transcripts of the cases that perhaps were not appealed, does the court reporter still have the records, if she or he has died, have the records been preserved.

How in the world, I suppose it can be done but it would be an extremely difficult, costly and time consuming process.

Unknown Speaker: These would involve all who were convicted of second degree murder and even all who were convicted of manslaughter if a defense of self defense had been interposed.

Mr. Charles M. Hensey: That is my understanding assuming that this court does not go off on the distinction that you were making earlier about whether this was properly presented.

But assuming you adopt the North Carolina Court?s analysis, yes.

Now, as I understand it, probably the first degree murder convictions would survive because you have to prove the element of premeditation and deliberation on the felony or what not beyond a reasonable doubt.

But in the second degree case, where either an involuntary manslaughter issue was presented or a self defense issue was presented and possibly if this court should go so far as to extend this doctrine into other areas such as entrapment or what not and that type of defense was raised then possibly even there.

Unknown Speaker: Well, just down there, within the meets and bounds of the decision of the Supreme Court of North Carolina would be every second degree murder conviction in which involuntary manslaughter defense or mitigation was an issue and also even a manslaughter conviction in which a self defense was an issue.

How many --

Mr. Charles M. Hensey: There is no way to identify these numbers.

The statistics kept by the Prison Department and the records kept by the Prison Department simply do not permit identification of this.

They have in the records what is known as the prisoner?s version of what happened but of course this is not a transcript of the trial.

And the only way I know of would be to get a transcript of every one of those trials, and see what issues were presented.

Unknown Speaker: How many gross numbers are involved?

Mr. Charles M. Hensey: Well, we are talking about around a thousand in total.

Unknown Speaker: That is second degree of manslaughter conviction.

Mr. Charles M. Hensey: No, my recollection is that we are talking around about 700 second degree type or below.

Now, of course some of these people might be out on parole obviously wherein whether or not they would have a right to raise this point.

What we are saying though is that it is going to be a very expensive, difficult and time consuming manner.

That would have a devastating impact on the administration of justice in the State of North Carolina.

Unknown Speaker: Your brief states that there are 722 inmates as of June 10, 1975 who had been convicted of second degree murder and you have cited a North Carolina case?

Mr. Charles M. Hensey: Well, that is what the North Carolina Supreme Court in Hankerson identified.

Those were the numbers that they identified.

Unknown Speaker: In addition to 269 inmates convicted of first degree.

Mr. Charles M. Hensey: Right, no, I do not think we will have any problems with first degree people.

We are going to have a lot of problems with the second degree people and any type of self defense gets into that.

Justice Byron R. White: Mr. Hensey, the state did not cross petition here, I take it?

Mr. Charles M. Hensey: No, sir we did not.

We thought about it and finally decided.

Justice Byron R. White: I take it then the question of whether Mullaney reach his self defense just does not open here.

Mr. Charles M. Hensey: Well, I did not think it was open Justice White until I heard the questions this morning.

Justice Byron R. White: Well, you did not think that you must have sought Mullaney covered it.

I am talking about a matter of jurisdiction, not a matter whether we may properly decide in this case.

Mr. Charles M. Hensey: Are you talking about the fact that voluntary manslaughter was not properly presented?

Justice Byron R. White: I am talking about the fact that your Supreme Court said that Mullaney applied self defense.

Mr. Charles M. Hensey: Yes sir.

Justice Byron R. White: And you did not cross petition challenging that?

Mr. Charles M. Hensey: No, I did not because first of all, I was under the impression that I was bound by the interpretation of my court.

Justice Byron R. White: What you mean is a matter of whether you had the authority to attack your Court?

Mr. Charles M. Hensey: Certainly, our court held as a matter of state law that there was absolutely no distinction between the burden of proof required for voluntary manslaughter and the burden of proof required for self defense.

Justice Byron R. White: I understand why you might not, but the fact it seems to me that the question of whether Mullaney covers self defense in North Carolina that issue just is not here, you did not petition raising it, and certainly your colleague -- and to support the judgment you are not entitled to present it either because that will give you a bigger judgment.

Mr. Charles M. Hensey: That is right.

Quite frankly, I just did not perceive this to be a problem until this morning and I thought that by the interpretation of our State Court and secondly in the trial of Hankerson, a manslaughter issue was presented to the jury.

A manslaughter issue was presented; a self defense issue was presented.

Therefore, I thought by having both issues presented to the jury by the Supreme Court of North Carolina saying there all the same.

Justice Byron R. White: The applicability of Mullaney to self defense may vary depending on the state.

Mr. Charles M. Hensey: It may very well.

Justice Byron R. White: And you say here the reason you sought was a closed issue, was that your court rule that self defense and provocation should be treated the same in terms of burden of proof.

Mr. Charles M. Hensey: Precisely, the standard in North Carolina which is proof to the satisfaction of the jury is the same in both of these matters.

And our State Court has so held and as I understood the major question of course was retroactivity.

The ancillary question that I had raised in my brief is that perhaps the Mullaney rules do not even apply to North Carolina at all.

That perhaps the satisfaction of the jury test means something less than the preponderance of the evidence.

Justice Byron R. White: In that point were you not arguing the same thing that the concurrent opinion argued?

Mr. Charles M. Hensey: That is correct.

Justice Byron R. White: And do we not have to interpret the majority as having rejected that?

Mr. Charles M. Hensey: Yes sir and of course, I recognized that in my brief that I may very well be foreclosed from this argument.

Justice Byron R. White: That is a North Carolina Law Court.

Mr. Charles M. Hensey: Yes.

Justice William J. Brennan: So the North Carolina Supreme Court, the majority was holding what it understood the federal constitution to require on the Mullaney case.

It was not construing state law, was it?

Mr. Charles M. Hensey: This would be my distinction that they interpreted the North Carolina Standard in view of what you gentlemen had said the constitution means.

Justice William J. Brennan: That was construing what a Due Process Clause of the Fourteenth Amendment requires in the light of the Mullaney case.

Mr. Charles M. Hensey: Precisely.

Justice William J. Brennan: That was not deciding a North Carolina Law.

Mr. Charles M. Hensey: Not deciding a question of what satisfaction of the jury means in terms of North Carolina Law.

Justice William J. Brennan: And since it affirmed the conviction in this case, you are entitled to make any arguments you want in upholding the decision to affirm this conviction, are you not?

Mr. Charles M. Hensey: That was my feeling Justice Brennan and that is why I made the argument of course.

Justice William J. Brennan: You are flattering me and elevating me.

Mr. Charles M. Hensey: Excuse me, I apologize sir.

This is my first time here, my little list.

Justice Byron R. White: General Hensey, May I just define that a little bit?

Is it not correct that the court decided a federal question as to what Mullaney requires for the future and then in deciding whether or not to affirm this conviction, they had to decide as a matter of North Carolina Law what the instruction of the jury on satisfaction properly meant and that was the North Carolina question.

Mr. Charles M. Hensey: That was the North Carolina question.

Justice Byron R. White: And that differed from the federal requirements.

Mr. Charles M. Hensey: Quite a bit, because of course in Mullaney, you all were construing a rule of law in main, that as I understand it had already been construed by the Main Supreme Court and of course, as I have attempted to argue in my brief, the North Carolina rules are quite a bit different from the rules in main.

We do not have this conclusive presumption of malice, and I guess its the Morgan tradition that really what North Carolina has is more of an evidentiary influence of malice, that when certain things are shown then the influence of malice arises and the production burden then is shifted on the defendant to come forward and present evidence.

Justice Byron R. White: General Hensey, let me us ask, one other question.

Do you agree with your opponent that the heat of passion element is in fact presented by this record under the manslaughter part as opposed to the self defense issue?

Mr. Charles M. Hensey: Well, certainly up until about 15-20 minutes ago that was my understanding of the posture of the case.

Justice Byron R. White: And that the evidence of the knife at the throat will be sufficient to raise that face of the case as well the self defense.

Mr. Charles M. Hensey: Yes, certainly it is my feeling that there was some evidence in the case and of course, North Carolina does require that there be evidence in the case before the judge instruct.

Justice Byron R. White: What do you do with what the Supreme Court said?

Mr. Charles M. Hensey: That it was not properly presented?

Justice Byron R. White: Well, there was no evidence, I have read the -- you heard the passage.

Mr. Charles M. Hensey: Yes, well, I do not quite know what I do with it but it is my feeling that the issue is here.

As I pointed out earlier that the similarity nay the identity of the rules of law and the standards and the burdens in North Carolina.

I feel like get this issue up here.

Certainly, the trial judge thought it was there.

He instructed that jury and I take it that jury could have returned a verdict of voluntary manslaughter under the instructions in this case.

Justice John Paul Stevens: What page of the Appendix are we talking about that the Supreme Court said it was?

Mr. Charles M. Hensey: 33.

Justice John Paul Stevens: 33.

Mr. Charles M. Hensey: 33, I believe.

First full paragraph.

Unknown Speaker: Mr. Justice Stevens is looking at the appendix.

How do you make the judgment to disagree with your court on this issue and accept the judgment of your court on other issues?

Mr. Charles M. Hensey: Well, for one thing on this issue that I am disagreeing with, it seemed like to me that the court was applying a federal principle that only you could ultimately decide the scope of.

Unknown Speaker: May I interrupt you right there, that the sentence Mr. Justice White read to you says, we note there is no evidence in this case of a killing in the heat of passion and that is probably a federal question, is it?

Mr. Charles M. Hensey: No, it is not and the only thing I can tell you is that I disagree with it.

Unknown Speaker: You are representing the state?

Mr. Charles M. Hensey: Yes, sir and I feel like that I have to make the best argument I can.

To conclude and summarize, that the state is more concerned about the potential retroactive application of your Mullaney case.

This is what we are most gravely concerned about and if this court could some how find its way clear to limit the retroactivity of Mullaney, the State of North Carolina would be very happy because by Hankerson hopefully, we have cleaned up whatever federal constitutional error might have been present in our rooms.

Unknown Speaker: Where would you draw the line?

Mr. Charles M. Hensey: On what sir, retroactivity?

Of course, I would draw the line as of the date, the decision was handed down and I realized this is a source of great controversy and that you draw the lines at varying dates, I would say that any case that was tried to a conclusion prior to the date of Mullaney should be allowed to remain.

Unknown Speaker: I think that North Carolina would even be happier and would be more interested in urging that Mullaney did not apply at all.

Mr. Charles M. Hensey: Well, this was going to be my next argument and by way of summary that obviously the millennium as far as I would be concerned here today would be for you all to hold that Mullaney never applied to North Carolina.

Unknown Speaker: But then you take that position without a cross petition?

Mr. Charles M. Hensey: Yes sir, without a cross petition.

Unknown Speaker: You can take it, do you think?

Justice Harry A. Blackmun: Well, you are arguing in support of the affirmance of this conviction, are you not?

Mr. Charles M. Hensey: That is exactly what I am arguing.

Justice Harry A. Blackmun: You are attacking the holding of your court.

You are not trying to support the judgment, you are attacking it.

Mr. Charles M. Hensey: Well, all I am saying is that the court may very well have misperceived and construed the sweep of your opinion in Mullaney, Mr. Justice Blackmun and as I understand, only you can say with finality that the sweep of your opinion possibly may apply to North Carolina.

As a representative of the state, I feel like it did not, I feel like our court painted with too broad a brush with your Mullaney decision and I feel like this is something that is legitimate, that this court should consider when it decides this particular case.

Justice Harry A. Blackmun: General Hensey, what really is the difference between as a matter of legal principle between the heat of passion argument and the self defense argument?

What is the argument you are making for us to draw distinction if we do reach it?

Mr. Charles M. Hensey: I can not say that there is any distinction myself.

Unknown Speaker: You really are not making a very powerful argument.

Mr. Charles M. Hensey: I am sorry Sir, I misunderstood your question.

Unknown Speaker: The question is, if you were permitted to argue that there should be a distinction drawn between self defense and heat of passion for Mullaney purposes, then I would say, well, what is the argument and I thought you said I do not have an argument.

Mr. Charles M. Hensey: Well, I am sorry sir.

I thought you were talking about in terms of state law concerning the burden of proof on those two affirmative defenses.

As I understand it as a matter of state law there is no different between the two and so far as the burden of proof.

Unknown Speaker: What is the different as matter of Federal Constitutional Law that you would urge us to consider?

Mr. Charles M. Hensey: Between self defense and heat of passion.

Unknown Speaker: When the burden as a matter state law is identical with respect to both of those matters?

Mr. Charles M. Hensey: Well, I would argue that in so far as North Carolina is concerned, where the burden is to the satisfaction of the jury on both of those affirmative defenses that satisfying the jury does not mean convincing by a preponderance of the evidence.

Unknown Speaker: I understand but that the argument applies equally to heat of passion and to self defense.

Mr. Charles M. Hensey: Yes sir.

Unknown Speaker: Is there any principled reason for distinguishing between heat of passion and self defense as matter of Federal Constitutional Law?

The North Carolina Supreme Court signed on and Mr. Justice White in effect has raised question, well, maybe there is one that we have not discussed.

Mr. Charles M. Hensey: That is what I thought you were asking a while ago Sir, and my answer is that I do not see any distinction either.

Unknown Speaker: What is the difference between self defense and insanity as an affirmative defense?

Mr. Charles M. Hensey: Well, of course self defense goes to the unlawfulness issue and the insanity goes to the malice element.

Unknown Speaker: Each one of them goes to the basic question of whether or not a criminal homicide has been committed.

Does it not?

Mr. Charles M. Hensey: Yes sir, it does.

One excuses because of the mental condition, the other excuses because of the threat to the bodily harm.

Unknown Speaker: Well, it is a justification.

Mr. Charles M. Hensey: It is a justification but it is not unlawful as what you are saying when it is self defense.

I quite frankly can see no distinction but you do have of course your Leland case which was a strange procedural animal and that the state had to find the man guilty beyond a reasonable doubt and then he had to come in and prove himself insane beyond reasonable doubt.

Of course, as I recall the opinion you said that was alright under those circumstances, and of course Argon has long since done away with that procedure to my knowledge.

Unknown Speaker: But there are many, many cases in states in which insanity remains an affirmative defense to be pleaded and proved by the defendant.

Mr. Charles M. Hensey: The one problem is of course looking at the text writers, is that there seems to be some questions; number one as to what an affirmative defense is?

What do you categorize as that?

Then of course they are all grades and shades of proof once you decide the thing is an affirmative defense.

I cannot give you a rational distinction between the insanity problem and the heat of passion or self defense problem except to say that it is there and apparently this court at one time or another has made those distinctions.

Thank you very much.

Chief Justice Warren E. Burger: Very, well.

Do you have anything further Mr. Diedrick?

Rebuttal of Lawrence G. Diedrick

Mr. Lawrence G. Diedrick: I just wanted to reply in rebuttal to his argument with reference to the severe impact it would have on the administration of justice.

Now, I do not have available to me any statistics of any state except for North Carolina which are present in his brief and which our court addressed itself to.

However, I think this statistics are un-meaningful without some type of guidance as to the number of those which are pleas, the number of those which were pleas and not guilty, the number of those which are actually first degree convictions, which are second degree convictions, which are manslaughter convictions.

Unknown Speaker: Well, it has separated the first degree, I thought from the second degree of manslaughter.

Mr. Lawrence G. Diedrick: I understood that he had but I am saying that before you can meaningfully answer that question you have to make that determination having all of that criteria available to you and most importantly which ones were upon pleas of not guilty and which ones were pleas of guilty.

Unknown Speaker: Somebody who pleaded guilty would have pleaded guilty with the knowledge and/or the advice of his lawyer as to what then State of the North Carolina Law was, and that he could certainly collaterally attack that guilty plea, could he not if these were made retroactive?

Because now the law has been changed and he could probably say he would never have pleaded guilty if it had been incumbent upon the state to prove these things rather than upon himself.

Mr. Lawrence G. Diedrick: But if that defense of self defense was available to him, I would argue to you whether under the state law was then affirmed by the defense was a burden upon him or whether it was not an affirmed defense that yes he would have had to -- with the counsel who made the determination whether or not the defense was available to him but I would argue to you that his plea of guilty was a waiver.

Unknown Speaker: Well, that is undoubtedly what the state would argue but there is certainly an argument on the other side, is it not?

Mr. Lawrence G. Diedrick: There could be, yes sir.

Unknown Speaker: Even attacking a guilty plea.

Mr. Lawrence G. Diedrick: There could be.

But the thing that I really would argue is this, if you take a factual situation like my case, the case at the bar in which all of the evidence is primarily exculpatory evidence which is statements of the defendant wherein he clearly brought forward lack of malice on his part, I would argue, which he clearly brought forward lack of unlawfulness because of the defense of self defense.

Reviewing all of the facts and circumstances in the case and weighing everything equally, I certainly argue to the court that the charge of the court in this case substantially affected the fact finding process.

If there are these 728 other cases, 3 or 4 or 10 which would have properly brought this forward and it makes no difference how severe an impact it would have on the administration of justice, it should be done because I would argue to you these people were unconstitutionally convicted, that they did not receive a fair trial, that they had a constitutionally prohibited burden placed upon them and regardless of the severe impact should be made available to them.

Thank you.

Chief Justice Warren E. Burger: Thank you Gentlemen.

The case is submitted.