Transcript

IN THE SUPREME COURT OF THE UNITED STATES

LARRY GENE HEATH, Petitioner, v. ALABAMA

No. 84-5555

October 9, 1985

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 1:57 o'clock p.m.

APPEARANCES:

RONALD J. ALLEN, ESQ., Chicago, Illinois; on behalf of the petitioner.

WILLIAM DUNCAN LITTLE, III, ESQ., Assistant Attorney General of Alabama, Montgomery, Alabama; on behalf of the respondent.

PROCEEDING

CHIEF JUSTICE BURGER: We will hear arguments next in Heath against Alabama.

Mr. Allen, I think you may proceed whenever you are ready.

ORAL ARGUMENT OF RONALD J. ALLEN, ESQ., ON BEHALF OF THE PETITIONER

MR. ALLEN: Mr. Chief Justice, and may it please the Court, Mr. Heath was indicted in Georgia for the murder of his wife after joint investigation between Alabama and Georgia officials for capital murder.

The same day that he was indicted, a notice of aggravating circumstance was filed by the state, which is the method by which Georgia indicates its intent to seek the death penalty.

Some time later, he pleaded guilty to that murder, and we now reach a factual nuance that will take me a minute or so to explore of some significance. In the state's brief they assert in Pages 10, 31, and 32 that the defendant pled guilty to life imprisonment. That is not supported by the record, and if it is supported by the record, it causes the state a bit of a dilemma.

The record shows that he pled guilty to murder, and then it is uncontradicted that he went through what is called the unified appeals procedure, which is the method by which Georgia -- these are hearings by which they decide if the death penalty is to be imposed, and subsequently a life sentence was imposed.

I think the reason the state asserts that he pled guilty to the life sentence is they indicate or at least argue that he was never in jeopardy for his life, whereas in fact the record supports that he was, but more importantly, suppose the government is right. Suppose the state of Alabama is correct that he did plead guilty to life imprisonment.

Under those circumstances, the dilemma that the state faces is either that they are essentially conceding that their agents denied a trial, that there was a plea agreement, committed perjury, or if it was somebody other than those agents who entered into the plea agreement, serious questions of immunity are raised, because obviously if there was an agreement in Georgia, it would contain, at least implicitly, statements about immunity, and if that is the case, one of the issues that this Court would face should it apply the dual sovereignty doctrine to successive state prosecutions is how to work out those kinds of questions of immunity.

QUESTION: What would you say, Mr. Allen, if the record showed that there was a kidnapping and rape in one state, either Georgia or Alabama, and then another day the murder occurred? What would you -- would your view be the same?

MR. ALLEN: I am sorry, sir. You mean across a state line?

QUESTION: The kidnapping and rape in, say --

MR. ALLEN: Say, Georgia?

QUESTION: -- and taking them across the state line and murdering the victim on the next day.

MR. ALLEN: I think it is quite clear, Your Honor, for reasons I am going to develop in detail, that we have to respect territoriality in the criminal justice process, and that under those circumstances, the murder occurred in the one state, the kidnapping and the rape occurred in another.

Now, if one of those acts is not an element of the defense, and is relevant somehow to the sentencing process, then it strikes me that the territoriality principle would not restrict the state from considering that element in its decision to reach a conclusion of capital punishment.

The interesting fact in this case is that the sentencing criteria in this case is the kidnapping. The sine qua non is the murder, and that occurred in Georgia, not in Alabama.

Now, this Court asked the parties to address the applicability of the dual sovereignty doctrine to successive state prosecutions.

QUESTION: Well, was there some offense in Alabama?

MR. ALLEN: If -- was there some offense? If there was a kidnapping, there was a kidnapping most likely in Alabama. The record isn't absolutely clear about that, to be quite frank about it, but --

QUESTION: How about the contracts to kill the person?

MR. ALLEN: Those things were entered into in Georgia.

QUESTION: In Georgia?

MR. ALLEN: That's right. Now, I would like to address my remarks to three issues. First of all, the concerns of the double jeopardy clause are more acute here than in any other situation where this Court has dealt with the dual sovereignty doctrine, the concerns of the individual.

Commensurately, the concerns of the state are less. Secondly, that a decision in favor of Alabama will have a significant impact on the administration of criminal justice in the United States, and further will call into question --

QUESTION: Mr. Allen, let me interrupt you again. Suppose the Alabama charge has been for only kidnapping. Would you be here?

MR. ALLEN: No, sir. And further, as I was saying, would call into question -- a decision in favor of Alabama would call into question precedents of this Court.

The third point that I will make today is that by contrast a decision for Mr. Heath would essentially cast doubt on no precedents of this Court and maintain the status quo in the administration of criminal justice in the United States.

The reason the defendant's interests are more acute here than in other circumstances where this Court has dealt with the dual sovereignty exception is, first of all, here we have what is probably the pristine problem of the double jeopardy clause, apparently repeated efforts to deprive a person of his life.

In most instances where the dual sovereignty exception has been applied, that is not the case, and of course that raises an increased risk of an erroneous death sentence that has not been dealt with before by this Court, but more importantly than that, a second reason why the defendant's interests are more acute here is that the state purports to ask you to extend the dual sovereignty exception to successive state prosecutions.

But that is not what they are asking you to do. What they are asking you to do is in fact create a multiple sovereignty exception. Under the state's argument, the fact that there are only two states involved in this case is a complete fortuity.

If states are allowed to be freed from the constraints of double jeopardy clause when a sister state has taken cognizance of that exact same act, the result could be that an individual could be tried for the same offense across a multitude of states.

A perfect example is, if a person is kidnapped, to pick up some of the examples already used today and carry it across three different jurisdictions, each of those jurisdictions would have jurisdiction over the kidnapping, and presumably if there is a murder that follows, to try that individual for the capital offense of the murder.

So, we are talking here not about a dual sovereignty exception. We are talking about creating a multiple sovereignty exception. Moreover, the interests of the state in this situation are much less than they are in the other context where this Court has extended the dual sovereignty exception.

It is conceivable the next 15 minutes of my life may be made uncomfortable by pointed questions that implicitly ask if the states are sovereign. Well, let me say at the outset that yes, indeed, the states are sovereign. I am not here to attack the sovereignty of the states. But to say that they are sovereign is not to say what the attributes of sovereignty are.

And as this Court held -- or discussed, did not hold, in Garcia last year, one has to look at the interest underlying institutional relationships in interpreting the nature of sovereignty. And I would suggest that that is an appropriate way to proceed as this Court has proceeded in the past in interpretations of the double jeopardy clause.

If you look at your decisions, it is interesting to note that when four conditions have been met, you have applied the dual sovereignty exceptions to successive prosecution. Number One, concurrent territorial jurisdiction. Number Two, by quite different entities, governmental entities that pursue quite different interests. Number Three, where there is a risk of intergovernmental conflict. And Four, where the most felicitous resolution of that conflict is to allow two, not a multitude, but two prosecutions.

None of these matters are present here in this case. There obviously is not, at least I think there is not concurrent territorial jurisdiction. Without that, there is not the overlapping of complex statutory structures that exist, say, in the federal-state relationships, and with that overlapping of the federal and state statutes comes the possibility of continuous and annoying friction.

That doesn't exist in the relationship of states to each other as it does in successive federal state prosecutions. Moreover, in the context of resolving this problem in the federal-state context, consider the alternatives that this Court faced when asked to do just that.

If you allow, as you could have done, the first prosecution to preempt the second, under those circumstances, a state prosecution would preempt a subsequent federal prosecution with the resultant loss of federal supremacy, obviously not a desired result. The reverse, though, is no more desirable.

If it is a federal prosecution that preempts a state prosecution, the result of that is federal preemption of local law enforcement, again, not desirable, but again, neither one would occur in this case. In fact, if there is any loss of sovereignty in this case, it would come by affirming Alabama's taking of jurisdiction over these events that occurred within the territorial jurisdiction in Georgia, and allowing them to execute a person for a murder that occurred within that state.

Now, another --

QUESTION: Is that an independent argument of your double jeopardy --

MR. ALLEN: Your Honor, I think --

QUESTION: -- the jurisdictional thing? Is that just a -- is that a due process claim, or what?

MR. ALLEN: Your Honor, let me just be frank about the matter. I would like you to tell me that jurisdiction is before this Court. The difficulty is, it was not raised by counsel for Mr. Heath below. I think that nonetheless it is before this Court for filing.

Your cases have always said that the dual sovereignty exception applies only when both jurisdictions have jurisdiction. Therefore your cases make an element of the dual sovereignty exception the presence of jurisdiction over the event. That is the reason if it is before you it is before you.

Now, let me also say, though, that even if you decide jurisdiction is not appropriately before you, the consequences of this Court finding the dual sovereignty exception to apply to successive state prosecution in terms of what that implies about state jurisdiction obviously is a concern that this Court should have.

QUESTION: Well, of course, I suppose the double jeopardy argument is really a due process argument, isn't it?

MR. ALLEN: In any even it is, you are right, and --

QUESTION: Yes.

MR. ALLEN: -- I would be quite happy to be free to think that all due process issues are properly before you, but something tells me I shouldn't view it that way.

QUESTION: May I be unfair and ask you to explain to me your opponent's argument as to how Alabama gets sovereignty?

MR. ALLEN: Your Honor, they have a statute that says that a crime that commences in Alabama they have jurisdiction of, even if it is consummated outside the state. They say that this crime of the murder commenced with the kidnapping, which occurred, if it occurred at all, in Alabama, and therefore they say this is a single crime, murder during a kidnapping, and they have jurisdiction over it.

Do you want me to go further, because I can.

QUESTION: I mean, I have a problem that there weren't two murders.

MR. ALLEN: Yes, sir, that is a problem.

QUESTION: That's my problem.

MR. ALLEN: That's the problem. Now, the state -- the third reason why the state's interest in this case is even less than in the normal context of dual sovereignty is that in the normal context of dual sovereignty, the federal-state context in particular, you have different entities pursuing different interests. Here that is not the case. This particular case is a perfect example of it. You have both states pursuing their interests in deterring and punishing murders.

QUESTION: Wasn't the victim a resident of Alabama?

MR. ALLEN: Yes, sir, she was. The issue that raises is a very interesting one, which is whether or not a state -- unfortunately, its jurisdiction -- has the power to protect its citizens outside of its state borders. Even if they do, and let's assume that they do, nonetheless, they don't have the power to do that freed from your interpretation of the double jeopardy clause. So you would have to find that not only does Alabama have the power to exert jurisdiction on this basis, but also that the dual sovereignty exception is going to be extended, because it is absolutely clear that Georgia did exert authority over this murder.

QUESTION: But apart from the double jeopardy argument, is there any reason to think that normal minimum contacts rules don't apply in criminal proceedings as well as in civil proceedings?

MR. ALLEN: Yes, sir, the opinions of your own Court suggest that very strongly.

QUESTION: Which ones?

MR. ALLEN: Huntington versus Attrill says that --

QUESTION: When was that decided?

MR. ALLEN: Quite some time ago, in the 1800's.

QUESTION: Well, somewhat before International Shoe, then, wasn't it?

MR. ALLEN: It is my understanding that International Shoe was not an interpretation of criminal jurisdiction rules.

QUESTION: I know, but I mean, we are not back in Pennoyer against Neff.

MR. ALLEN: Your Honor, you are right that we are not. If you are asserting that --

QUESTION: I don't assert. I was simply asking you a question.

MR. ALLEN: And the answer is that those cases are old cases, but the reason they are old cases is because the principal of territoriality that they constructed, or I shouldn't say constructed, simply recognized, has never been cast into doubt.

A perfect example of this is, after diligent search I and I presume my friend from Alabama have not been able to find a single case other than this case of an extraterritorial assertion of jurisdiction over a murder that occurred outside the state.

QUESTION: Well, why should -- as a matter of principle, why should it be any different in a criminal case than in a civil case, if you are talking about "jurisdiction" apart from double jeopardy considerations?

MR. ALLEN: If there is a reason, the reason is, is that one has always interpreted the criminal process, the statutes constructing the criminal process in a narrow way. Here, if you allow the kinds of -- if you allow an analogy to civil jurisdiction, what you would get, of course, is that the states are completely free to interpret their own interests, bring people in for very serious charges, even though they may have occurred anywhere across the country, or indeed for that matter anywhere in the world in a context where normally we view that as inappropriate behavior.

QUESTION: Well, let's take just the facts of this case. Supposing that on these facts, Georgia for some reason or other had said we just don't want to prosecute this case. We think the case is weak. We don't think a Georgia jury would convict.

Would Alabama then be prevented from trying this particular defendant for murder on these facts?

QUESTION: Well, it depends, and I want to be very clear about this, because your question goes to the heart of one of the problems we have. If you construe criminal jurisdiction to be limited to territoriality, the question would be answered in the negative. They could not exert jurisdiction, and obviously that would be the end of the matter.

But that is not what my argument rests upon. That is one implication of a decision in favor of Alabama, that they do have extraterritorial jurisdiction, notwithstanding the pronouncements of this Court. The argument here, though, is, assuming that they do have jurisdiction, Georgia did exercise jurisdiction in this case, and the question is, does the double jeopardy clause preclude Alabama from doing so when Georgia has already done so.

QUESTION: So you don't have an unequivocal answer to my question.

MR. ALLEN: No, I don't. I don't have an unequivocal answer to your question, although it would be a dramatic change in the administration of criminal justice to hold that criminal justice jurisdiction, jurisdiction over criminal acts is somehow analogous to civil jurisdiction, and indeed, as I say, the absence of these cases indicates how dramatic a change that would be.

QUESTION: Well, Mr. Allen, suppose the Alabama statute or the criminal statute said -- named as one of the capital crimes a kidnapping in the course of which a murder takes place, and so they indict him for kidnapping, and they prove that a murder took place. Would you be making the same argument?

MR. ALLEN: Where does the murder occur?

QUESTION: In Georgia.

MR. ALLEN: Yes.

QUESTION: Why is that?

MR. ALLEN: Because --

QUESTION: I thought you said a while ago that you could use -- you could use in the sentencing phase evidence of crimes that took place in Georgia. is the conventional view of the interpretations of this Court that the only crime, although it is not clear, but the only crime for which capital punishment is permissible is murder. Under those circumstances, it would be quite obvious the state would be trying to circumvent those restrictions. Call it kidnapping, convict him, and then rely on what is the sine qua non, which is the murder, which is outside the scope of the state's jurisdiction.

But even in your case --

QUESTION: Well, that's a different argument.

MR. ALLEN: But even in your case, Your Honor, let me point out --

QUESTION: That wouldn't be -- you wouldn't be arguing jurisdiction, then, would you?

MR. ALLEN: No, I would be arguing --

QUESTION: You would be arguing double jeopardy.

MR. ALLEN: I would be arguing the Eighth Amendment.

QUESTION: You would be arguing something

MR. ALLEN: Which, Justice White, if I had had my druthers, would also have been raised below, but wasn't. But I want to point out that in your hypothetical you leave one fact out that does not make it analogous to this case, which is that in this case Georgia did take cognizance of the murder that occurred in Georgia, did prosecute, did give a life sentence to Mr. Heath.

For these reasons, it strikes me that the balance is here altogether different. The interests of the defendant are much stronger. The interests of the state are much weaker than in other cases where this Court has interpreted the dual sovereignty exception to be applicable.

I might point out two other points. If you decide in favor of Alabama, that will have a profound impact on the administration of criminal justice. I have already pointed out one way in which that is so. This would be the creation not of a dual sovereignty exception, but of a multiple sovereignty exception.

QUESTION: May I interrupt you there, because I have been trying to reflect about your multiple, whether that makes it better or worse.

Supposing somebody starts out in Chicago and drives 100 miles an hour all the way up through Indiana into Michigan. Can he be prosecuted for speeding in all three states?

MR. ALLEN: I think he can, Your Honor. There decide what jurisdictional rules apply. You are going to have to look at the acts that occurred in the state.

QUESTION: Supposing he forces someone against his will to ride with him. Can he be prosecuted for kidnapping in all three states in your view?

MR. ALLEN: I think the answer to that question would be yes.

QUESTION: He could? question would be yes. There was a kidnapping that occurred -- picks him up in Chicago and dumps him off in St. Joe when he does kill him, he can only be prosecuted in one state?

MR. ALLEN: Where the events occurred. If that is not true --

QUESTION: In each trial you would want to prove the whole sequence of events, I am assuming. You decided to do it, you picked him up -- I mean, if the prosecutor -- you picked him up, drove him on this particular route, and then killed him and dumped him out.

MR. ALLEN: I don't think so, Your Honor, except in the state in which the murder occurred. If that is not part and parcel of the charge, I don't know why it would be relevant.

QUESTION: Isn't the only way you could analogize those hypotheticals with this one is that you kill him each state.

MR. ALLEN: Right. If you kill him in each state, then I would agree you could prosecute him in each state.

QUESTION: Well, if you cut his throat and he bled to death in two states, I suppose you could prosecute in both states?

MR. ALLEN: That is a good -- that is a good hypothetical, really, and in fact it is a hypothetical that common law has dealt with. Common law says there are two alternative grounds of jurisdiction over murder, either where the blow occurs, in this case the cutting of the throat, or where the person expires. But that wasn't for purposes of allowing two states to have jurisdiction. That was for the purposes of locating the offense somewhere.

QUESTION: That may have been the purpose, but what would you say in that case, only one state?

MR. ALLEN: Only one state, and --

QUESTION: Which one?

MR. ALLEN: Either.

QUESTION: But not two?

MR. ALLEN: But not two.

Now, if I may go on with the implications of a decision in favor of Alabama, not only is there the multiple sovereignty problem, there is also going to be an impact on plea bargaining. The only reason why a defendant pleads is to get assurances on sentence, and the more that that person is exposed to multiple prosecutions, the less likely that person is going to be to cooperate, or at least it is true the more difficult those negotiations are going to become.

This case is a perfect example of that. If the state is correct in its implications that there was -- well, if the brief is correct, if respondent's brief is correct in its implications that there was a deal, this statement that was given, which is virtually the only evidence that ties him to the offense obviously was given in response to that deal.

Now, it is highly, highly unlikely that that individual is going to give that statement that then was used against him in Alabama if he is exposed to the prosecution in Alabama that actually occurred in this case. So again I think one thing that you ought to think about or might want to think about is the impact of exposing an individual to multiple trials on plea bargaining.

Moreover, a decision in favor of Alabama raises serious questions for this Court, or will raise serious questions for this Court in other areas. How do the vindictiveness cases apply, or will the apply to successive activities by state prosecutors in different states? The state suggests that our suggestion in our brief that in part the Alabama prosecution was a function of Mr. Heath's refusing to testify in Georgia is preposterous.

I would like to review just quickly what happened. He was called to testify against his confederates, who he identified, by the way, in the statement made to the police in Georgia, and he pled the Fifth Amendment on the grounds that he was still subject to a kidnapping charge in Alabama, which he was, and it was clearly a legitimate exercise of his Fifth Amendment rights.

One week to the day after he pled the Fifth Amendment, Alabama empaneled a grand jury and indicted him for not the kidnapping but the murder. Now, it strikes me that under the precedents of this Court, Figpen versus Roberts, Blackledge versus Perry, and the like, that would clearly raise a presumption of vindictiveness, and the issue that you will face if you apply the dual sovereignty exception to successive state prosecutions is precisely that kind of an issue that will now come back to you.

How does immunity work? I mentioned before that we have here a problem of immunity. If there was a deal, that deal implicitly contains an agreement not to prosecute for other offenses. Under your precedence, the state, if a state grants immunity, at least use and derivative use, that binds the federal government. If you apply the successive state to -- the dual sovereignty exception to successive state prosecutions, you will have the same kind of immunity problems in successive state prosecutions. At least it will have to be worked out.

Moreover, if you allow successive state prosecutions, you will eventually have to decide the scope of state court jurisdiction. You will get cases with less and less of a nexus to states, and you will have to work that problem out.

Now, perhaps you can work it out by an easy reference to Pennoyer versus Neff. It is possible. I suggest that that is quite inconsistent with our understanding of criminal jurisdiction in the United States in which the single most important element is territoriality. If you affirm this opinion, affirm this case in a way that implies that criminal jurisdiction is freed from territoriality as a primary determinant, you will then have to fill the void with something else, and this Court will be the court, or the lower federal courts will be the courts that will have to answer those questions.

I would also point out that this case is unprecedented in certain other ways. As I have said before, this is the first case that I can find, and the state has not cited any either, where there has been an extraterritorial assertion of jurisdiction over a murder that occurred somewhere else.

There have been two cases that have reached courts of last resort where there are multiple prosecutions and a federal-state dual sovereignty exception for the same prosecution, and in both cases the courts of last resort reversed. That was the Gay case in Michigan and your case in Coleman versus Tennessee.

I have found one case since the time we wrote our brief where multiple prosecutions for the same murder have been upheld, and that is Delay versus the United States, 602 Fed 2nd 173 of the Eighth Circuit. Its singularity, though, I think, speaks volumes about the view of the scope of criminal jurisdiction in the United States as well as the abhorrence that we have for multiple prosecutions for the same --

QUESTION: What was that citation?

MR. ALLEN: Delay, D-e-l-a-y, versus United States, 602 Fed 2nd 173.

QUESTION: One seventy-three?

MR. ALLEN: Yes. Eighth Circuit, 1979, I believe.

Two other points that are involved in this case. If you decide in favor of Alabama, you will cast in doubt directly one of the precedents of your Court, Nielson versus Oregon. In Nielson versus Oregon, you held that where Oregon and Washington have concurrent territorial jurisdiction because of the way in which they were admitted to the union -- they have territorial jurisdiction over the same river.

I shouldn't say you held. You said that when a state, when two states have concurrent territorial jurisdiction, and one state takes jurisdiction over a criminal offense that occurred within that concurrent area, the other state is forbidden from doing so.

Now, again, you may wish --

QUESTION: Is that quite right? Didn't one of them permit it and the other prohibit it?

MR. ALLEN: Well, you are right. I was talking about --

QUESTION: You had two crimes.

MR. ALLEN: I was talking about your dicta. In dicta, the Court said that if this were the case, but actually what happened in Nielson is that one state explicitly allowed by statute the occurrence, and the question was whether that was sufficient to negate the otherwise legitimate statute of the state of Washington, I believe, and it was not.

QUESTION: And by hypothesis they were dealing with an act that took place in a territory over which both had jurisdiction.

MR. ALLEN: Right, and of course that is an a fortiori case from this case, because here I take it we have not reached the point where Alabama has jurisdiction over Georgia.

On the other hand, a decision for Mr. Heath will be of very limited effect. First of all, this is a capital case where, as I said earlier, he was put into jeopardy in his life in two states, and indeed it involves the single most important interest under the double jeopardy clause.

QUESTION: Mr. Allen, I want to be sure, because I wasn't sure I understood one of your answers to Justice White.

Do you view -- is it critical to your argument that this be a capital case?

MR. ALLEN: It is not critical, no. It is interesting, but it is not critical.

QUESTION: So if it were just -- if it were a non-capital offense, you would basically make the same argument.

MR. ALLEN: That's right. This Court, as you know, has carved out capital sentences as a thing apart in many instances, Estelle versus Smith and all the -- and you could do that again. I have just pointed out how limited the decision could be in favor of Mr. Heath, and indeed there is a reason to do that, and that is that again the Fifth Amendment speaks specifically about putting somebody in jeopardy for their life.

Secondly, a decision in favor of Mr. Heath overrules and casts into doubt no cases. Thirdly, it preserves rather than disrupts the status quo in the administration of criminal justice in the United States, and no disruptive questions that I can see will come from a decision in favor of Mr. Heath.

So, in conclusion, what I would say is that Alabama is attempting essentially to circumvent two fundamental limits on state power. One is that we normally subject a person to a single trial for single offense, and of course the other is that the reach of the state's penal law is normally limited to territoriality. They have offered no good reason why they should be allowed to escape these limits on their power, and I would respectfully suggest that they have not been able to do so.

QUESTION: Well, suppose -- you are not -- your argument up here isn't the jurisdictional one. You say you aren't entitled to make it. Well, you say you are, but it wasn't raised below.

MR. ALLEN: Right.

QUESTION: And this is from the state court, and all that sort of thing. What if -- what if this weren't a capital -- weren't a capital case, and the act he committed in Georgia in the course of a kidnapping or in the course of something of a continuing crime wasn't a crime there.

Now, would you be making the same argument that Alabama then couldn't --

MR. ALLEN: Your Honor, I don't think it is Alabama's role to police the acts that occur in other states.

QUESTION: I know, I know, but you wouldn't --

MR. ALLEN: If the answer is yes, I would be making a single argument.

QUESTION: -- you wouldn't be making a double jeopardy argument.

MR. ALLEN: Not a double jeopardy argument.

QUESTION: You would be making a jurisdictional argument.

MR. ALLEN: Jurisdictional argument.

QUESTION: Well, you are not -- so your argument you made, your fundamental argument here wouldn't apply in that case.

MR. ALLEN: No, that is not true. Even if Georgia has --

QUESTION: Although your double jeopardy argument wouldn't apply.

MR. ALLEN: Not in that --

QUESTION: You said it wouldn't.

MR. ALLEN: Not in that case, but that is not this case, because Georgia did take cognizance of this particular --

QUESTION: You talk about my example.

MR. ALLEN: Absolutely. If Georgia did not take cognizance of some act, it would not be a double jeopardy argument.

QUESTION: All right. That is all I need to know.

MR. ALLEN: If there are no further questions, I will reserve the remaining time for rebuttal.

CHIEF JUSTICE BURGER: Mr. Little.

ORAL ARGUMENT OF WILLIAM DUNCAN LITTLE, III, ESQ., ON BEHALF OF THE RESPONDENT

MR. LITTLE: Thank you. Mr. Chief Justice, and may it please the Court, despite petitioner's argument, this is a straightforward case. There is only one issue here, and that is whether where one act violates the law of two different governments or two different sovereign governments, there are two different offenses, or whether double jeopardy -- excuse me, whether the dual sovereignty doctrine applies to an act which violates the law of two different states.

As petitioner conceded, the issue of jurisdiction was not raised in the courts below. It was not addressed by the Alabama courts at all. It was raised in the petition for certiorari. This Court denied certiorari as to that issue and granted certiorari as to an issue which specifically assumed the existence of jurisdiction.

Now, this Court's dual sovereignty doctrine as it has been established is very clear and very logical. Where one act violates the law of two different sovereign governments, there are two different offenses for purposes of the double jeopardy clause. Two government are sovereign in relation to one another where each derives its authority to prosecute from a different source.

This Court in United States versus Lanza and in Abbate versus United States has held that states derive their authority to prosecute from their own constitutions. Now, here we have Alabama and Georgia, two states each deriving their authority to prosecute from their own constitutions. These are sovereigns under the dual sovereignty doctrine, and therefore there is no double jeopardy violation.

Furthermore, this is not only clear, it makes sense. In this Court's other double jeopardy cases, the focus has been on the legal distinction between the statutes, whether these statutes are legally different. For instance, under Blockburger, the question there is whether each statute includes an element of proof which is not included in the other statute.

Now, here we have two laws which are legally distinct in the most basic sense. One is an Alabama law passed by the Alabama legislature pursuant to the Alabama constitution. The other is a Georgia law passed by the Georgia legislature. They must be considered different offenses for purposes of the double jeopardy clause.

Now, the petitioner would have the Court discard all the clear language of these cases and instead decide this case based on other factors. I would like to discuss these individually.

First is the idea of comparison of interest. Petitioner says that two prosecutions should only be allowed where the two governments are pursuing different interests, and where one government's interests are not served by another government. This should be rejected for a number of reasons.

First, it is totally contrary to what the court has already said in this area. The focus in all the dual sovereignty cases is on sovereignty, and the local question is, are the governments sovereign in relation to one another. It is very telling, I think, that the petitioner sites no cases which interpret this Court's cases as involving any kind of comparison of interest test.

Furthermore, in Abbate, Abbate versus United States, this Court was presented with a similar interest argument, and it rejected that argument. I think the petitioner's argument is in essence that the Court simply didn't mean what it was saying in these cases.

Furthermore, if the Court -- if the idea of interest and a comparison of interest had been the real reason for deciding these cases, United States versus Lanza would have been decided differently. There, the petitioner -- excuse me, the defendant was prosecuted in state court for manufacturing, transporting, and possessing liquor. He pled guilty. He was then indicted in Federal court for manufacturing, possessing, and transporting exactly the same liquor. So therefore the interests in this case were identical.

The second reason for rejecting this comparison of interest test is a related one. Because this comparison of interest is contrary to the settled law in this area, the Court could not adopt it in the area of prosecution by two different states without casting serious doubts on its holdings in other areas.

The third reason for rejecting this comparison of interest test is a more practical one. If this test were adopted, the Court would be discarding a very clear and a very sound doctrine in favor of one that has to be fleshed out on a case by case basis. Now, in our brief, I have demonstrated the difficulty in applying -- that often arises in applying a test like this to prosecutions by two different states, and the petitioner in his reply brief has essentially admitted that that is correct.

Furthermore, if a comparison of interest test were adopted and applied in this case, they are different interests here. The petitioner pled guilty, and he received in Georgia for his Georgia offense a life sentence with parole eligibility. However, under Alabama law the punishment is different. Under Alabama law the minimum punishment is life imprisonment without parole, and the prosecutor in this case asked for the death penalty given the nature of the offense. So, Alabama has unsatisfied interest.

The second factor in the petitioner's test is the idea of concurrent territorial jurisdiction. He points out that in all these dual sovereignty cases courts happen to have been exercising current territorial jurisdiction. This is simply a different -- a distinction without being a difference.

The focus of the dual sovereignty -- the essence of the dual sovereignty doctrine is that where one act violates the law of two sovereign governments, there are two offenses. Now, how those governments happen to have obtained jurisdiction, whether it is because there is concurrent territorial jurisdiction or because, as here, a defendant commits in essence the continuing criminal transaction across the line of two different states, is simply irrelevant to that analysis.

Now, the third factor in the petitioner's proposed test is the idea of intergovernmental conflict. He says that two prosecutions should only be allowed where there is a substantial possibility of intergovernmental conflict in barring the second prosecution. Again, like the other two factors, this is contrary to the explicit language of all the dual sovereignty cases, and the petitioner cites no case which interprets those cases as involving that factor.

Moreover, there is easily as great a possibility of intergovernmental conflict in the area of prosecutions among the 50 states as in the area of prosecutions by the federal government and Indian tribes, and this Court has already held in United States versus Wheeler that the dual sovereignty doctrine applies there.

The fact that these factors that the petitioner cites were not the basis of the Court's decisions as shown by the case of Waller versus Florida. In that case we had different interests. The person was prosecuted in municipal court for misdemeanors. He was then prosecuted in state court for a felony. So there was a difference in the punishment, a significant difference.

There was concurrent territorial jurisdiction. Furthermore, there is a substantial risk of intergovernmental conflict and prosecutions involving municipalities and states. For instance, every vehicular homicide which occurs within city limits is potentially a violation of a municipal traffic ordinance and a state homicide statute, and it is certainly possible the defendant can go into municipal court and plead guilty and then try to use that to defeat or to avoid a state homicide prosecution.

In short, this Court's dual sovereignty cases are very concise and very logical, and above all very workable. By contrast, the petitioner's proposed test is not only contrary to what this Court has said in this area --

QUESTION: Mr. Little, how did the murder in Georgia interfere with the sovereignty of Alabama?

MR. LITTLE: Your Honor, under Alabama law the offense that the petitioner was accused of and was prosecuted for is murder during a kidnapping in the first degree. Alabama courts have interpreted that as being --

QUESTION: Could you prosecute him for kidnapping in another state?

MR. LITTLE: Not if that kidnapping --

QUESTION: Well, how can you prosecute for murder in another state?

MR. LITTLE: Under Alabama law, Alabama has jurisdiction of an offense if it began in Alabama and ended in another state. Alabama has interpreted our capital murder offense of murder during a kidnapping as being one offense consisting of two different elements, so it began in Alabama and ended in another state.

QUESTION: But your real interest is, you want a killing.

MR. LITTLE: Our real interest, Your Honor, is in prosecuting him for violating our law.

QUESTION: Well, he has been prosecuted for murder, and he has been convicted.

MR. LITTLE: He has been prosecuted in Georgia for Georgia's offense of murder. Now, what Georgia --

QUESTION: And convicted.

MR. LITTLE: And he has been convicted.

QUESTION: And sentenced.

MR. LITTLE: And sentenced.

QUESTION: But he wasn't killed.

MR. LITTLE: Well, what Georgia --

QUESTION: And you want to kill him.

MR. LITTLE: What Georgia does with respect to its offenses is simply not our business. We would prosecute him regardless of whether Georgia did or did not.

Now, there are several matters that Mr. Allen touched on that I would like to just very briefly discussed. He asserted that this is a joint investigation in this case. The record shows that it was not. These were two different states independently investigating this crime.

QUESTION: Mr. Little, let me see if I follow you. Suppose he had -- suppose the death penalty had been imposed in Georgia but it had been delayed for some reason. Did I understand you to say Alabama would have prosecuted anyway?

MR. LITTLE: Well, Your Honor, we prosecuted him. The explicit reason for prosecuting him in this case stated by the prosecutor in his closing argument was that he had violated Alabama law. He was subject to the prosecution. I was not the prosecutor in that case, and I cannot personally say what would have happened if there had been a death sentence imposed in Georgia.

But the fact that there was a death sentence imposed in Georgia would no affect the fact that this man had committed an Alabama offense for which he was subject to be prosecuted.

QUESTION: Are you conceding that the reason Alabama prosecuted is because he didn't get the death penalty in Georgia?

MR. LITTLE: No, I am certainly not, Your Honor. There is nothing in the record to support that.

QUESTION: Well, then your answer to my other question is probably in the affirmative, that you would have prosecuted anyway.

MR. LITTLE: Well, he would have --

QUESTION: -- the death penalty --

MR. LITTLE: Well, all I can say is, I don't know. What I am going by is what the prosecutor stated in the record. The man would have violated Alabama law regardless of whether he had gotten a death sentence in Georgia.

QUESTION: Well, you may -- I suppose you insist that Alabama would have had the power to do it, but may not have exercised it.

MR. LITTLE: Yes, Your Honor. Certainly. If the defendant had gotten a death sentence in Georgia and it appeared that that death sentence would stand up, a prosecutor might in his discretion decide that he simply had better things to do than to prosecute a case and impose another death sentence. After all, a person can only be executed one time. But that --

QUESTION: The fact is, you weren't satisfied with a life sentence in Georgia.

MR. LITTLE: No, Your Honor, there is nothing in the record to suggest that.

QUESTION: The facts rather suggest it, don't they?

QUESTION: Would one of Alabama's concerns be that under a judgment of conviction in Georgia, he might be out on parole in 12, 15 years, and Alabama wanted him in custody longer than that. Is that a factor that would be legitimate for a prosecutor? I won't -- since you don't know whether that happened here, would that be a legitimate factor for the prosecutor in the state of Alabama?

MR. LITTLE: Yes, Your Honor. That might be a factor for a prosecutor exercising his discretion, and whether to prosecute in a particular case, he might take that into consideration. Whether he did that in this case, I don't know.

QUESTION: Mr. Little, you did argue earlier that one of the interests of Alabama was the death penalty. Didn't you say that standing where you are?

MR. LITTLE: Maybe I could clarify my position. Alabama has --

QUESTION: But did you say that?

MR. LITTLE: Yes, I did, but let me clarify what I meant if I didn't say it correctly. Alabama basically has two interests. Alabama has declared that when a person is kidnapped from Alabama and murdered, that is a capital offense in Alabama, regardless of whether that violates the law of another state or whether another state prosecutes.

We have an interest in seeing that a person is prosecuted and sentenced according to Alabama law for that Alabama offense. Now, if you want to simply boil the case down to a matter of interest, and if you can assume that the punishment or the proceedings in another state can satisfy Alabama's interest under its law, then Alabama does have an unsatisfied interest in this particular case, because the minimum punishment, the punishment he received in Georgia is less than what he -- the minimum punishment he would have received in Alabama, and a prosecutor certainly could take that into consideration.

One other factor I would like to clear up, Mr. Allen has asserted that the record is not clear that Mr. Heath pled guilty in exchange for a life sentence. I am not really sure I understand his argument with regard to that, but Mr. Heath himself testified, I believe, that he pled guilty in Georgia in exchange for a life sentence. So he is the one who discussed the bargain there.

QUESTION: In Georgia, when would he be eligible for parole, if ever?

MR. LITTLE: In my understanding, he would be eligible for parole in seven years in Georgia.

QUESTION: When?

MR. LITTLE: In seven years.

QUESTION: Seven years.

MR. LITTLE: As I understand.

QUESTION: You assert, I take it, that Alabama or any other state so involved has the right to take that into account in deciding to prosecute.

MR. LITTLE: So, Your Honor, Alabama in exercising its discretion to prosecute certainly could take that into account.

As to -- this is not an important point, but I would like to assert the record is not clear where the murder in this case took place. What we know about this case is that this woman was forcibly abducted from Alabama and that her body was later found in Georgia. As to when -- now, the record probably suggests that she died in Georgia, but as to where she was shot, we simply don't know.

As to the assertion that the petitioner was prosecuted because he took the Fifth Amendment in Georgia or asserted his Fifth Amendment rights, there is nothing in the record to suggest that other than the coincidence of dates. It is pretty clear what happened here. This man was charge in Georgia. Alabama simply sat back and let Georgia proceed against them until Georgia was through with him.

There were a number of trials taking place in his co-defendants around this time, and it was simply convenient for Alabama to wait until Georgia was through with Mr. Heath for whatever purposes before they tried to extradite him back.

Now, with regard to the case of Nielson versus Oregon, what that is, in that case there is some dicta which suggest that when one state, when two states have concurrent jurisdiction over an area, and where one state proceeds against a defendant for violation of its laws, where the other state also prohibits that laws, it then loses its jurisdiction.

Now, to the extent that that is good law still, that holding or that dicta only relates to the issue of jurisdiction. It is not a double jeopardy case at all.

QUESTION: May I ask you one other question? Assume -- we have been talking mostly about cases where there is some difference in the law, one, there is a death penalty that is imposed, and the other there isn't. Supposing we had a non-capital offense for a moment. Supposing the law of each state prescribed a mandatory ten-year sentence, no deviation up or down, and the same elements of the offense in both, but it had some kind of an interstate quirk, as this one does, and they prosecuted, sentence him to ten years, and he is serving his ten years.

On your view of the double jeopardy clause, could your state go ahead and prosecute him again for the same offense and impose an additional ten years so he would get a total of 20?

MR. LITTLE: Yes, Your Honor.

The Court in this case has a very clearcut task, to apply a settled doctrine to another area. I think it is clear the situation here -- that the situation here falls within the established dual sovereignty doctrine, and therefore this case should be affirmed.

If there are no questions, thank you.

CHIEF JUSTICE BURGER: Do you have anything further, Mr. Allen?

ORAL ARGUMENT OF RONALD J. ALIEN, ESQ., ON BEHALF OF THE PETITIONER - REBUTTAL

MR. ALLEN: A few points, Mr. Chief Justice.

QUESTION: Mr. Allen, suppose that Georgia had arrested this -- Alabama had arrested this man first. He ran to Alabama and they indicted him for murder, a murder that took place in Georgia but in the course of a kidnapping. Then you would be reduced to the jurisdictional argument?

MR. ALLEN: That's correct.

QUESTION: But then could Georgia have prosecuted him for murder?

MR. ALLEN: No, I think not. Under those circumstances, if Alabama prosecuted him, that would be double jeopardy in Georgia.

QUESTION: All right.

MR. ALLEN: Now, I have a number of points to make if I may. With respect to the analogy to civil jurisdiction, I would like to point out that there are substantial differences between civil and criminal law jurisdiction.

For example, full faith and credit, collateral estoppel, res judicata. If you were to accept an analogy to civil jurisdiction, presumably you would accept an analogy to that. If that is true, then this case in Georgia would be res judicata in Alabama, and thus be -- we wouldn't be here today because it wouldn't have arisen.

The respondent says there are no cases discussing interest. We discussed these cases, and I will not read from the quotes on Page 30 of our brief. It is quite clear that one of the important issues that this Court has faced has been the interest underlying the institutional relationships when it has decided the scope of the double jeopardy clause.

Alabama also asserts that even applying my test, the test that I suggest, you ought to come out for them here because there would be intergovernmental conflict. I don't understand that. If you had a situation, say, where Georgia wished to prosecute somebody to preempt Alabama from doing so and wouldn't cooperate, I take it they don't have to extradite them either, so that extending the dual sovereignty doctrine to resolve that conflict doesn't resolve it.

Now, Georgia could just keep custody of the person and not let Alabama discharge their law no matter what you do about the dual sovereignty exception.

I would also like to point out, Mr. Chief Justice, in response to some of your questions that every time you have two prosecutions, the second prosecuting authority wants to raise the punishment. It is the only reason to prosecute. That fact --

QUESTION: You say that is an invalid reason?

MR. ALLEN: Yes. Well, it is not invalid. It is not enough. If it were enough, we would have no double jeopardy clause. It is not enough, and what the cases say here is, you need something other than that to get around the prohibition that is in the double jeopardy clause.

QUESTION: You agree that this man would be eligible for parole in seven years under Georgia law?

MR. ALLEN: I don't know when he would he eligible for parole. I do know what the average length of sentence is in Georgia. It is 15 years. It is not --

QUESTION: Average length of life sentence is 15 years?

MR. ALLEN: Average length, average is about 15 years.

QUESTION: That is higher than the national average by far.

MR. ALLEN: Your Honor --

QUESTION: And Georgia's statute that we dealt -- new criminal code that we dealt with a few years ago was apparently one of the most generous in terms of short sentences of any in the country. Those two things don't add up.

MR. ALLEN: I have been informed, and if you would like us to give you statistics on this, I would be most happy to provide it, that the average sentence in Georgia is 15 years for life for murder.

I don't think it much matters whether there was a joint investigation or simply close cooperation, but I would like to point out that on Page 388 of the record, Mr. Boswell, who works for Alabama, testified to the following:

"Question: And these actions that you -- this investigation, was it under the auspices strictly of Russell County Sheriff's Office," which is in Alabama. "Absolutely. Yes, sir.

"Question: You weren't aiding or investigation another state's sheriff's department?

"Answer: It was a mutual thing. They were assisting us with our investigation, and we were assisting them with theirs.

"Question: In other words, you were working with the sheriff's department or the district attorneys' office in Trote County, Georgia.

"Right."

The significance to the extent there is any of that, of course, is, it indicates you have two states here doing what one state couldn't do, working in close cooperation.

CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.

(Whereupon, at 2:45 p.m., the case in the above-entitled matter was submitted.)