HILTON v. BRAUNSKILL

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Argument of John G. Holl

Chief Justice Rehnquist: Mr. Holl, you may proceed whenever you're ready.

Mr. Holl: Mr. Chief Justice and may it please the Court--

This case is here on a writ of certiorari to the Third Circuit Court of Appeals, and it involves a purely legal issue of the interpretation of Federal Rule of Appellate Procedure 23(c), specifically the permissible factors that federal courts can take into account in determining whether or not to release a successful habeas petitioner pending an appeal by the state.

Relying almost exclusively on the decision of the Third Circuit in Carter against Rafferty, the Third Circuit has held and the district court below have held that they will only take into account the possibility of flight in making this decision.

The state of New Jersey, Petitioner herein, is arguing that there are additional factors that are properly considered under 23(c), including the chances of success on appeal by the state as a factor that the court should take into account, as well as the dangerousness of the Petitioner.

Initially, I would note with respect to the factor of likelihood of success on appeal, that issue I don't think was considered by the Carter court.

The Carter court concentrated exclusively on dangerousness.

Unknown Speaker: You mean the Carter court did not explicitly reject--

Mr. Holl: Yes.

Unknown Speaker: --likelihood of success on appeal?

Mr. Holl: That's correct.

And I think the rationale of the Carter decision, which is something that we take issue with but I'll get into later, even if you apply the rationale of the Carter decision, which is the federal courts can only take into account what it perceives as a federal interest, if you apply that rationale you would see that the chances of state success on appeal is also a federal interest.

We have the state as a party in a federal action.

The Respondent is a party in a federal action.

There is an appeal to a federal court.

So the outcome of that appeal is certainly an issue which the federal courts have an interest in, and should be an appropriate factor under 23(c) even if you accept the Carter analysis--

However, we don't think that the Carter court interpreted 23(c) properly.

We think that there are a number of reasons to reject the narrow interpretation that the Carter court adopted here.

The first one is, the Carter court held that the only interest, the only factor, is a probability of flight.

We think that the language of the rule, which is extremely broad and which says that a petitioner is presumed to be released... it doesn't specifically use the word of presumption of release, but the state would concede that the rule does contain a presumption of release.

The presumption of release is there when a petitioner is successful in district court, but it can be overcome.

He shall be released unless a court shall order otherwise.

In those instances... that's kind of broad language right there.

It's extremely broad language, and we don't think there's any reason to believe that it narrowly confines the federal courts to the probability of flight.

Unknown Speaker: You're here arguing for the state, I take it.

Mr. Holl: That's correct, Justice White.

Unknown Speaker: And you want to... you've convicted a person and you don't want him at large until there is some final ruling on the habeas corpus.

Mr. Holl: Yes, that's correct, Justice White.

Unknown Speaker: Does New Jersey have a post-conviction relief operation?

Mr. Holl: Yes, we do.

Unknown Speaker: Well, let's suppose that a convicted defendant files for state habeas or state collateral relief, and he wins in the lower court and then he's on appeal in the state system.

Now, I understand the state law to be that only flight is to be considered.

Mr. Holl: No, I don't believe that is the state of the law in New Jersey.

We have a rule called bail pending appeal.

Unknown Speaker: So you think... wasn't there an amicus who claimed that that's the rule?

Mr. Holl: I believe that... I'm not sure there was an amicus that claimed that that was the rule in this case, Justice White.

We have a rule, a New Jersey court rule which was adopted by the New Jersey Supreme Court, which is entitled bail pending appeal.

And it permits a court to take into account the dangerousness.

Unknown Speaker: Oh, it does specifically?

Mr. Holl: Yes, it does specifically.

Unknown Speaker: That's bail pending appeal of a direct conviction?

Mr. Holl: Yes.

And there are no cases as to whether or not that rule applies to a--

Unknown Speaker: Collateral.

Mr. Holl: --a collateral proceeding.

But it's our position that it is the rule which is most analogous.

Unknown Speaker: Well, why shouldn't we really know that for a certainty before we decide what the rule that the federal court should apply in this case?

It seems to me if there's any interest in holding this prisoner, it's a state interest, not a federal interest, and that if the states would not... if the state would in fact let this individual out pending appeal from a state habeas corpus, I see no reason whatever why the federal court should do otherwise.

Mr. Holl: Well, I think that there is a reason here.

The state courts have already found this man to be dangerous and they have incarcerated him.

They have already made that finding.

Unknown Speaker: No, no.

You mistake me.

I'm saying if the New Jersey Supreme Court itself would not feel offended by a New Jersey lower court releasing an individual when the lower court finds that he's entitled to state habeaus, I don't know why a federal court should be any more stingy with this man's freedom, because the only interest in holding him is a state interest.

If the state itself would let him go, I see no reason why the federal court shouldn't let him go.

So don't we have to know what the New Jersey rule is?

Mr. Holl: I don't think you have to know to decide this case, because I think that would frustrate a federal interest in the uniform application of the habeas rule, and it would permit perhaps a state to come up with a rule--

Unknown Speaker: He hasn't been convicted of a federal crime, right?

He's been convicted of a state crime?

Mr. Holl: --That's correct.

Unknown Speaker: So the only reason he should be held in prison at all is a state reason, it seems to me.

Mr. Holl: Well, I think that the law of New Jersey is rather clear, first of all, that he would... that a court would be permitted to keep him incarcerated pending his state habeas proceeding pursuant to that rule.

But aside from that, the federal courts... if you reach a... if you take the position that the decision whether or not, that a federal court makes to release a defendant is based on the state rule, then you're not going to have a uniform application of the federal habeas corpus laws, because it's the federal court which releases him pursuant to a federal statute.

Unknown Speaker: On the other hand, if you take the position that it depends on federal law you're not going to have... it's sort of an Erie question.

You're not going to have uniform application within the state.

If you apply for state habeas corpus and the state gives it to you, you're free pending the appeal.

But if you apply for federal habeas corpus and you win, the federal court holds you.

So it's like Erie.

Do you want uniformity within the state or do you want uniformity nationwide?

Mr. Holl: I think the answer is that in this case and in all cases the state courts will have considered the same claims that are being raised on habeas and will already have made the decision that the individual involved is dangerous and should be incarcerated.

So I think that's the rationale behind it.

Unknown Speaker: Mr. Holl, at least I'm along with Justice Scalia.

Can you brief that and send it in to us?

Mr. Holl: Sure, Your Honor.

We'd be happy to accommodate the Court on that issue.

Unknown Speaker: I mean, I would like to know personally.

I'd like to know what the New Jersey law is.

Mr. Holl: Well, this issue has been researched.

There are no cases directly on point as to whether or not our bail pending appeal rule applies to a state collateral proceeding.

Unknown Speaker: I'm talking about the New Jersey law.

Mr. Holl: That's correct.

And there are no cases, but we think that the most analogous rule--

Unknown Speaker: Have you researched it?

Mr. Holl: --Yes, we have, Justice Marshall.

Unknown Speaker: Where is he now?

Mr. Holl: This man, I don't know, Your Honor, Justice Blackmun, I don't know.

He is not incarcerated.

He has been released.

Unknown Speaker: Well, the state did not seek cert in the Carter case, did it?

Mr. Holl: I don't believe the Carter case is... oh, you mean in the Carter case at issue here?

Yes, I believe that's correct, that the state did not seek a--

Unknown Speaker: Do you know why?

Mr. Holl: That case was handled by the Passaic County Prosecutor's Office, which is a separate entity.

And I do not know their reasons for not seeking it.

Unknown Speaker: It was all over the press.

It was all over the press.

Was that the reason why?

Mr. Holl: Well, that could be the reason why, Justice Marshall.

Unknown Speaker: Mr. Holl, are you suggesting that because of the delicate relationship of the federal habeas procedures to state convictions, there might be a federal interest apart from a state interest in seeing that the man is delivered over if it were reversed on appeal?

Mr. Holl: I think that there are federal interests here, there's no question about that.

There are a number of federal interests, including and I think the most important one is the interest in comity between the federal and state systems here.

The deference that would be provided by a rule permitting a court to take dangerousness into account would result in less of a strain on the federal-state comity relationship.

Unknown Speaker: Well, Mr. Holl, do you think that there is some appropriate inquiry in the federal court to try to preserve the status quo pending an appeal?

Mr. Holl: Yes, I do.

Unknown Speaker: In which the court might consider the likelihood of success on appeal and the fact that the defendant was incarcerated, and so forth?

Mr. Holl: I believe that's a very important interest here.

An important federal interest in comity is to maintain the status quo and to take into account all factors that are relevant to this decision as to whether or not to stay.

There's no good reason in law or justice, and the courts are required under Section 2243 of the habeas corpus law to dispose of these matters as law and justice require.

That's a broad standard.

Unknown Speaker: Dangerousness and likelihood of success, and they find this man is very... they think he's very dangerous, but that he's almost sure to win on appeal.

What are they supposed to do with him?

Mr. Holl: I think if we have an instance where the state does not have a substantial case on appeal and all we had is a dangerous individual who was being held under an unconstitutional conviction--

Unknown Speaker: Well, it hasn't been finally decided.

Mr. Holl: --It hasn't been finally decided.

Unknown Speaker: But the district court says, somebody says, very good likelihood of success on appeal.

Mr. Holl: Likelihood of success on behalf of the prisoner?

Unknown Speaker: Yes.

Mr. Holl: In that case I think that if the state can't make an issue, a showing that it also has a substantial case--

Unknown Speaker: That's what I mean, yes.

Mr. Holl: --a substantial case on the merits, if we can't make that showing and all we have is a dangerous fellow, I don't think we have been able to... there is a presumption there that he shall be released, and I don't think we've been able to overcome it purely on the grounds of dangerousness.

Unknown Speaker: So it really turns on the likelihood of success.

Mr. Holl: I think likelihood of success is the more significant factor.

Unknown Speaker: But Carter said you can't consider that at all?

Mr. Holl: No, that's not what Carter said.

Unknown Speaker: Oh, it isn't?

Mr. Holl: Carter said that you can't consider dangerousness.

It did not discuss that issue.

Unknown Speaker: Has the Court of Appeals said that the only thing you can consider is the likelihood of flight?

Mr. Holl: That is what that... yes, that is correct.

Unknown Speaker: So that... when did they say that?

Mr. Holl: They said that in the decision in Carter.

Unknown Speaker: Well, that excludes likelihood of success.

Mr. Holl: That's correct.

I guess you could make that.

I'm not so sure that the Court of Appeals even considered, though, the likelihood of success as a factor.

And that's why I believe that, even if they used their same rationale that they used in Carter, that the federal courts only take into account the--

Unknown Speaker: Well, the dangerousness then is a red herring.

Mr. Holl: --No.

Unknown Speaker: Because if there's a likelihood of success, you're going to... if he's likely to prevail in the appellate court, he's going to get out whether he's dangerous or not.

And if he hasn't got any likelihood of success, he's going to stay in even if he isn't dangerous.

Mr. Holl: We think that it is a weighing process here.

I think the courts have to weigh whether the state or the Respondent has a substantial case on the issue, not necessarily a likelihood that it's more likely than not.

We're not getting involved in a numbers game.

We're more interested in, if the state can show it has a substantial case on the merits of an appeal and it can also show there is dangerousness, we think those two factors should be taken into account and considered and weighed.

In some cases the courts will find that the--

Unknown Speaker: Can I interrupt you for a second and ask you about this particular case, prompted by Justice Blackmun's question.

As I understand, this man is on parole now, and he's already had his habeas corpus petition.

He was successful on the appeal on that, so there obviously is likelihood... was he not?

Mr. Holl: --No.

Unknown Speaker: Wasn't the writ, the issuance of the writ affirmed by the Court of Appeals?

Mr. Holl: Yes, it was, but then the state made a motion before the Court of Appeals to reconsider.

And that motion has been granted by the Third Circuit.

Unknown Speaker: Oh, I see.

Mr. Holl: And the prior order which affirmed the district court's decision has been vacated.

So there is no order in effect from the Third Circuit.

Unknown Speaker: Specifically what order are we being asked to review?

Is it the en banc order of the--

Third Circuit refusing to grant a stay?

Mr. Holl: Yes.

Unknown Speaker: And the reasons for that really are not terribly clear from the order.

The only thing they really recite in there is that the motion was filed on May 16th and the man is scheduled to be released from custody on May 20th, petition is denied.

Mr. Holl: That's correct.

Unknown Speaker: So is it not possible that they denied the motion thinking that, since he's going to be at large anyway, that there's no point in granting a stay?

Mr. Holl: Well, I don't think that's the reason that they adopted that or they made that decision.

Unknown Speaker: Could we reverse that now and tell them they must enter a stay at this point, when the man's at large on parole?

Mr. Holl: I think that in the courts below there is not a sufficient record, unfortunately, because of the... some factors just simply haven't been considered.

The district court wouldn't consider likelihood of success.

Unknown Speaker: Well, what relief can you get in this case from this Court now?

Mr. Holl: I think what we're asking from this Court is a decision on the law that these are--

Unknown Speaker: Totally unrelated to this Petitioner?

Just you want a general pronouncement of the law?

Mr. Holl: --No, because the state went before the district court--

Unknown Speaker: Right.

Mr. Holl: --and attempted to--

Unknown Speaker: And he didn't give you a stay.

Mr. Holl: --That's right.

Unknown Speaker: He said... for one thing, he said, he doesn't really look all that dangerous, because you misrepresented his criminal record in the district court.

And anyway, and in addition, under Carter I couldn't consider dangerous anyway.

Mr. Holl: And he also said that he would not take into account the state's chances of success.

Unknown Speaker: He didn't write an opinion.

This was kind of a colloquy.

And then you go to the Court of Appeals and they say: Well, he's going to be released in four days anyway, so we can't grant a stay.

Mr. Holl: There's a factual--

Unknown Speaker: So what are we... I mean, what order do you expect this Court to enter now?

Mr. Holl: --We would ask that the case be remanded all the way back to the district court.

Unknown Speaker: And what should the district court do then?

Mr. Holl: The district court should be instructed to take into account factors such as the Petitioner's--

Unknown Speaker: For what purpose?

The man's at large.

Mr. Holl: --The man is at large because he was released under an erroneous standard of law.

Unknown Speaker: I thought he has also been paroled.

Mr. Holl: No.

He has an additional--

Unknown Speaker: He's been released because of the order of the district court?

Mr. Holl: --Yes.

Unknown Speaker: I misunderstood.

I'm sorry, I apologize.

I thought that he also... hadn't he been up for parole in August of '86?

Mr. Holl: Well, there was a misunderstanding.

In the record now before the Third Circuit, there is a letter from the New Jersey Parole Board which indicates that the Petitioner has an additional... the Respondent has an additional six or seven months to serve on his sentence should he be sent back, should the order of the district court--

Unknown Speaker: I'm sorry, I'm sorry.

I misunderstood.

I come back to Carter, however, and don't understand why the state didn't seek cert on that when factually it's a much better case than this one.

Mr. Holl: --That was a decision, I'm sure there were a number of factors that went into that decision, Justice Blackmun.

The state, I know, is also pursuing the appeal on the Carter case on the merits before the Third Circuit.

I don't think it's been decided yet.

Unknown Speaker: What you're saying, I take it, is in the case where perhaps the state... where the district court orders release on habeas, the state has a plausible case on appeal but not an overwhelming one, there a very dangerous habeas petitioner probably should not be released, one who is not found dangerous probably should be released?

Mr. Holl: That's correct.

That's basically what we're saying.

We're saying that dangerous is an appropriate factor, because in some cases the state's case on appeal will be more or less substantial, in that range where it should be considered and also would justify the weighing of the dangerousness of the prisoner.

Unknown Speaker: Well, if he's real dangerous you couldn't keep him more than that six months could you?

Mr. Holl: That's correct, that's correct.

Unknown Speaker: So that's what is before us, six months?

Mr. Holl: That's correct.

Unknown Speaker: I'm reading an amicus brief.

It says that the state of New Jersey has declared as a matter of state policy that the potential dangerousness of an accused defendant cannot be the basis for incarcerating him before trial.

That's State against Johnson.

Mr. Holl: That is correct, Justice White.

We do not have in our state a pretrial--

Unknown Speaker: But you think the rule is different once there's a conviction and there's an appeal?

Mr. Holl: --That's correct.

Unknown Speaker: And that there's a specific rule on that?

Mr. Holl: Yes, there is.

Unknown Speaker: And the only issue now that is undecided is about state collateral?

Mr. Holl: That's right.

The issue is, does our rule of bail after conviction apply to state collateral proceedings.

There are no cases, but we believe it does.

Unknown Speaker: Thank you.

Mr. Holl: The decision in Carter which estops a federal court from considering these factors does serious damage to comity.

The state, when it has a dangerous individual, is going to be forced, if the federal courts are not going to consider these factors, to retry a dangerous individual rather than risk being released pending appeal if a court won't take that into account in many cases.

And therefore, we won't be able to pursue our appeal.

If we have to... if we go back and retry an individual under the same kind of an order that was entered here by the district court, then we don't have a right to appeal.

Obviously we won't be permitted to pursue a retrial in the state court and a federal appeal at the same time.

This puts us in a very unpleasant situation.

Unknown Speaker: You put yourself in that situation.

Mr. Holl: Well, we've been put in that situation.

Unknown Speaker: You put yourself in that situation.

What are you complaining about?

Mr. Holl: Well, we have not put ourselves in that situation.

Unknown Speaker: Well, you didn't bring the Carter case up here.

Mr. Holl: The Carter case eventually could get here.

I don't know whether it will.

There is a pending Carter case, and whether that issue remains a part of it I don't know.

I'm not familiar with the ongoing Carter case other than that issue.

Unknown Speaker: You haven't read the newspapers recently?

Mr. Holl: I'm sorry?

Unknown Speaker: You haven't read the newspapers recently?

That's where the Carter case has been all along.

Mr. Holl: I haven't seen anything in recent days about the Carter case.

I don't believe that the state of New Jersey has put itself in this position.

We've been put in this position by the order of the federal district court, forcing us into, he has to be tried or he has to be released.

If we want to pursue an appeal of that decision because we think it isn't a correct decision, then this man will be released.

Unknown Speaker: Well, I don't understand.

Even if you decided to retry him, you wouldn't be able to hold him, would you?

You just told me you don't have any pretrial detention.

Mr. Holl: That's unclear.

I think pursuant... that brings up the practice of the issuance of conditional writs by the federal courts.

The federal courts have adopted a procedure in certain cases where they will tell a state, this petitioner has to be retried within a certain amount of time or else he's released, and we will have the order stayed.

So they will not... so they will tell the state to retry this defendant and he will remain incarcerated because the federal court will not sign an order--

Unknown Speaker: Only if he can't make bail, I presume.

I mean, you're not talking about... even if you retry him, I presume you would have to release him unless he could make bail on the retrial?

Isn't that right?

You told me you don't have any pretrial detention in New Jersey.

Mr. Holl: --The federal court in that case... he remains incarcerated, because the federal court--

Unknown Speaker: Without bail?

Mr. Holl: --has not ordered his release.

That's why he's still incarcerated.

He's still incarcerated because a federal judge... this is a common practice, this issuance of conditional writs.

The federal courts will find that the petitioner was denied a fair trial and they will say to the state: This petitioner has to be retried within a certain amount of time; if you don't, he will be released.

But then they will stay that order for the state to appeal, and so there will not be in effect an order of the courts requiring the petitioner to be released.

That's correct, Justice White.

I'd like to reserve my time.

Argument of Mark H. Friedman

Chief Justice Rehnquist: Thank you, Mr. Holl.

We'll hear now from you, Mr. Friedman.

Mr. Friedman: Mr. Chief Justice, may it please the Court.

Although both parties in this case invoke federalism and comity to support their positions, their views of what those phrases mean in the context of Rule 23 could not contrast more starkly.

The Third Circuit's opinion in Carter versus Rafferty resolves the tension in federal-state relations that is a necessary by-product of habeas corpus litigation by construing Rule 23 in light of the basic interests that habeas serves, which is the vindication of constitutional rights, along with the unquestioned interest that any court has in seeing that parties, defendants or otherwise, will be available to answer to later court judgments, and by leaving other purely state interests to state courts themselves to resolve under state law, however it may be defined.

Unknown Speaker: Mr. Friedman, before you get into your argument could I ask you one sort of basic question.

Assuming the state didn't want to appeal and the district court entered one of these 30 day conditional orders that you've got to release him if you don't put him on trial within 30 days, and they do put him on trial within 25 days and they keep him in prison while they're doing this, do you agree that the federal court has power to do that?

Mr. Friedman: To keep him in prison during the conditional writ period?

Unknown Speaker: Yes.

Mr. Friedman: Yes.

Over the years, that form of stay has been developed by the federal courts--

Unknown Speaker: I understand it's quite common.

Mr. Friedman: --simply to give the case--

Unknown Speaker: I just want to be sure you do not challenge that.

Mr. Friedman: --We do not challenge the practice of conditional writs.

We think that the language in Rule 23 that states that he shall be released on a surety unless the court otherwise orders refers to the conditional writs and nothing more.

But we do not challenge the right to the 30, 60 days for the state simply to have a reasonable period of time to make up its mind of what it is going to do.

Now, if--

Unknown Speaker: Why isn't it just as illogical?

It seems to me the rule you apply in one situation you ought to apply in the other.

Here you have a state that on retrial would not have any preventive detention.

What's the justification for the holding that you acknowledge to be legitimate during the 30 day conditional writ period?

Mr. Friedman: --Logically, I cannot draw a distinction.

It would seem to me the argument would apply to both.

But over the years this practice has developed of simply preserving a very short, reasonable period.

It would seem to me that certainly in many situations--

Unknown Speaker: Well, wait.

A very short reasonable period.

What happens after the 30 days expires?

Mr. Friedman: --After the 30 days expires, it depends on what the state has decided to do during that 30 days.

If it has decided to retry the defendant during the 30 days, in answer to an earlier question, then the jurisdiction of the district court lapses and he moves into the state system to be retried, at which point he could not be held.

So before the 30 days if the state moves to retry him, then it is state bail rules that would apply and federal jurisdiction would be divested.

If they decide to appeal, then when the 30 days expires without a retrial Carter would dictate he is released on a reasonable surety, unless--

Unknown Speaker: I'm not sure you're right about the first part of your answer.

If the 30 days does not expire before he's put back on trial, then the conditional writ does not issue as I understand it.

The writ says: If you are not put on trial, then you've got to release him.

If he is put on trial, that in effect nullifies the force of the writ.

So he just stays in jail as I understand it.

Mr. Friedman: --For the 30 days--

Unknown Speaker: Without having to comply with any bail requirements.

Mr. Friedman: --I apologize for a verbal mistake.

A conditional writ is indeed as you said it is, Justice Stevens.

It issues if the 30 days expires.

During that period before the writ expires, if the state chooses to go to trial, it would be our position, let's say on the twenty-fifth day, he would be under state bail protection.

In fact, the action that would signal reinstitution of a state trial proceeding would be a bail hearing, during which, under the New Jersey Constitution, he cannot be held.

Unknown Speaker: Why would he need a bail hearing?

No writ having issued, he's still--

Mr. Friedman: Because by taking the defendant back to trial, the state has acknowledged that its conviction is no longer of any force or effect.

The defendant is clearly in that situation in the position of an indicted defendant facing trial.

Unknown Speaker: --Well now, I understood from the state's representative that that question is not clearly answered--

Mr. Friedman: No, Your Honor.

Unknown Speaker: --by New Jersey state law.

You take the position that that's what the law surely should be, and the state's attorney takes a different view of it.

And I gather we don't have a clear holding.

Mr. Friedman: No, Your Honor.

I believe that the issue that the state was addressing, in response to, I believe it was, Justice White's question--

Unknown Speaker: All right, on state collateral.

Mr. Friedman: --That's right.

And there there is no case law that specifically holds that the rule involving post-conviction bail applies to post-conviction release.

Unknown Speaker: Is there clear state case law in the situation of federal habeas collateral relief as to what applies in the state of New Jersey?

Mr. Friedman: Are you referring to the situation that Justice Scalia, I believe, referred to earlier, where the defendant is taken to trial because the state chooses not to appeal, or the situation where the state chooses to appeal in the federal courts?

Because the answer would be different.

Unknown Speaker: Well, I want to know both.

Mr. Friedman: I beg your pardon.

The answer would not be different.

Unknown Speaker: All right.

Then what is the answer?

Mr. Friedman: If the state decides to take the defendant to trial, to abandon its conviction, then he is now a state indictee who--

Unknown Speaker: Do you have New Jersey Supreme Court authority for that?

Can you cite cases to me?

Mr. Friedman: --No, Your Honor.

All I can cite is the New Jersey Constitution.

My premise in that answer is--

Unknown Speaker: Well, you both agree there are no binding decisions, then, of the New Jersey courts on this issue?

Mr. Friedman: --There is no decision that I'm aware of that expressly addresses the situation of what happens.

Unknown Speaker: While I have you interrupted, let me ask you about the situation in the federal habeas proceeding when it results in a determination in favor of the prisoner, and if the state decides to appeal that holding.

Do you think there are federal interests at stake that enable the federal court, in deciding whether or not to release the prisoner, to consider the likelihood of success on appeal and so forth?

Mr. Friedman: Your Honor, I believe that applying the likelihood of success or the Rule 8 four factors, as the state request to do, to the release decision would be fundamentally unfair to a defendant and would in a case like this one, particularly a short sentence case, would vitiate the writ itself and its effectiveness.

It would damage the federal interest in ensuring that--

Unknown Speaker: Well, doesn't the federal government have an interest in being sure that that initial decision was correctly reached and to try to preserve the status quo pending the further resolution of that in federal courts?

Mr. Friedman: --The status quo that constantly is being referred to by the Petitioners is actually not the status quo, but the status quo ante, as though the judgment didn't exist.

Consideration has to be given to the equivalent federal interest that's shared by the federal courts and the defendant in having a writ issue that is effective.

Compare, if you will, the situation in a habeas case with the situation that is normally provided under Rule 8, a judgment for money or property, which is the standard Rule 8 situation.

If the appellant decides to take appeal after a judgment is given to him, then ordinarily what happens is the money or property is secured by a bond.

And the reason that that is done under Rule 8, under Rule 44 of this Court, under Rule 62 of the Civil Rules, is that both parties' interests are protected.

The appellant does not have to come up with the money or property immediately, to damage his interests; and the appellee, if he wins the case or she wins the case ultimately, is assured of payment.

Try to apply that to a habeas corpus situation involving a man's freedom and it simply does not work.

There is no bond, there is no supersedeas bond, there is no amount of money that can replace freedom that is lost.

Unknown Speaker: What about the standard for granting a stay by the appellate court, where you also have, you know, likelihood of success as a significant factor?

It's not the only one.

Mr. Friedman: But as I was indicating, Mr. Chief Justice, the entry of a stay has to be tailored to protect the interests of both parties.

That cannot be done if the stay proceeding is applied to Rule 8 in a situation like this, where what will inevitably happen in this case if enlargement was stayed was he would have served his entire unconstitutionally obtained sentence even if he won the appeal.

The compromise to be adopted, I would submit, is the line taken by the Sixth Circuit in Jago versus District Court of Northern Ohio and in Hill versus Rose, where the Rule 8 procedure was used to stay the judgment ordering a retrial or holding a statute unconstitutional, but where deference was given to the fact that the defendant's interests were not damaged because he would be out.

Unknown Speaker: Well, that's just making the writ conditional.

That's the appellate court making it conditional.

Mr. Friedman: No, Your Honor, I don't think so, because when the period would end the defendant would still be out through a surety.

It is conditional... his freedom is conditional or his ability to be retried is conditional on his winning the appeal.

But I do not think it is the same doctrinal basis as the conditional writ.

Unknown Speaker: Well, supposing that a district court finds, yes, I'm going to enlarge this petitioner on habeas.

I find that I'm not at all sure what I did is right; I think there's a very substantial chance of success on appeal.

I think he's extremely dangerous to the community.

You say the district court does not even have the discretion to say the guy doesn't get out on appeal?

Mr. Friedman: I say that the district court does not have the discretion to hold a man because he is dangerous.

Unknown Speaker: Well, I gave you a hypothesis.

Is the answer, your answer, that the district court does not even have the discretion to detain that man?

Mr. Friedman: He does not have the discretion to detain that man, or he should not have the discretion to detain that man based primarily on likelihood of success, which is apparently what the Petitioners have shifted their focus to.

On the dangerousness question--

Unknown Speaker: I gave you a hypothesis that he was found to be very dangerous, the district court has granted the habeas, but finds there is a good deal of chance of success on appeal.

Now, does the district court in that case have any discretion to deny release?

Mr. Friedman: --No, I would say he does not, or he should not.

If Your Honors decide he has, then so be it.

But the fact is he should not have.

Unknown Speaker: And the Court of Appeals could not issue a stay--

Mr. Friedman: The Court of Appeals--

Unknown Speaker: --based on the fact that the state may very well prevail on appeal?

Mr. Friedman: --No, Your Honor.

As I said, the answer--

Unknown Speaker: No what?

The court has no power to do that?

Mr. Friedman: --Should not have the power to do that, to hold him for likelihood under Rule 23.

As indicated in the Jago case, because to do so... as I say, you have to take--

Unknown Speaker: And likewise, this Court would have no power to stay a particular proceeding pending review here of a habeas?

Mr. Friedman: --This Court, it would seem to me, would have the power to stay if the judgment resulted in the order releasing him, but not the release.

Under Rule 23, those are two separate tracks.

That will be my position.

Unknown Speaker: Well, but if you have power to stay the order ordering release, that would have the effect of staying the release.

And it seems to me quite clear that an appellate court does have such power.

We do that sort of thing all the time.

We think there's an arguably erroneous order entered by a district court, when I was on the Court of Appeals we would stay the order.

Mr. Friedman: Your Honor, if--

Unknown Speaker: It seems to me there are two separate questions here.

One is what is the power of the district court, which is what most people have been talking about; the other is what is the power of the Court of Appeals.

And it seems to me really you have a very difficult burden of convincing us that the Court of Appeals would not have the power to stay that order.

Mr. Friedman: --What I'm trying to do to discharge that burden, Justice Stevens, is make a distinction between the release decision and the stay of the underlying order that held that the conviction was obtained unconstitutionally.

I think that the existence of the rule does mean that a stay of one in a habeas, in a unique habeas situation, does not necessarily apply to the other, because the defendant's interest in custody, particularly in a short sentence case like this, particularly in a case where the appeal would be going on long after he was released under regular parole rules in New Jersey, would mean that he would have, if the release decision was held to be stayed as opposed to simply the judgment, he would have no remedy at all.

Unknown Speaker: I don't think there is such a distinction.

Mr. Friedman: It's a difficult distinction and it's an unusual one.

But as I say, courts have made the distinction.

Unknown Speaker: I think it's a nonexistent distinction.

There is no release decision apart from the judgment ordering release.

That's what the release decision is.

You don't have an abstract thing, I think you let him out of jail.

You enter an order that compels something.

I just don't think you can divide those two into two separate things.

Mr. Friedman: Well, I don't--

Unknown Speaker: We review orders, Courts of Appeals review orders entered by district courts.

They don't... I suppose they could enter an injunction against a release.

That's quite different from the stay of an order.

Mr. Friedman: --Well then, Your Honor, if Your Honors are to hold that they can take into consideration the release decision, I would at least have Your Honors consider the unique posture of a habeas petitioner.

His burden, his position, is so different from a typical civil appellant that the distinction between the release order and the judgment, which as I say does have precedent in cases like Jaco and Hill versus Rose, is well suited to the habeas context, because without release from custody the chances are he would have no remedy whatsoever, even if the federal courts, even if this court or the circuit courts--

Unknown Speaker: Well, that really isn't correct in this case.

He had four more years of parole to serve, didn't he?

Mr. Friedman: --No, Your Honor, he did not.

Unknown Speaker: I guess I'm mixed up.

And at least he would expunge his record from the improper conviction.

That's not a trivial matter.

Mr. Friedman: Yes, Your Honor, where custody is no longer in issue, then this Court has ruled that habeas can reach other things.

But as a practical matter, in the real world, for a defendant being held in custody his remedy is what the habeas remedy has always been: release from custody, at least until his order or the basis for the order releasing him from custody is reversed by a higher court of competent jurisdiction.

It seems to me that the status quo that the state is arguing from represents nothing more than an absolutely resolute and relentless attempt to ignore the fact that he has received the judgment.

And I would ask Your Honor in considering the question of whether a stay that would stay his release and leave him to be paroled while the appeal was still pending is appropriate, given the nature of the habeas case.

There is a different track that you can go on that's fair to the interests of both sides.

The fact of the matter is the defendant can never get his time back, but the state can.

Unknown Speaker: No, but you're arguing whether it's a matter of discretion and so forth.

Maybe it wouldn't be fair in, say, 60 percent of the cases.

But the question that we're really asked is a question of power, as I understand it, that the district court simply has no power to enter a stay of its own order if he thinks the man is terribly dangerous and that there is a 50-50 chance on appeal.

Mr. Friedman: Your Honor has to separate the dangerousness component from the likelihood component because they implicate very different interests.

Even if Your Honors rule that the federal courts have and should have the power to stay an order of release based on likelihood of success, the dangerousness component has to be very strictly delineated from it, because the dangerousness to the community is a purely state function and it offends against federalism to allow federal courts to be used as means of defying... and that is all that they would be used for... as a means of defying the judgments made by the polity of the states, the constitution and legislatures and voters, that for defendants in a situation similar to this one, that he will be held even though no other state inmate in a comparable situation can be held.

Unknown Speaker: But that's on the assumption that, having decided the writ should be issued, he is the functional equivalent of the person who is presumed to be innocent, has never been tried.

That's the basis for your argument.

Mr. Friedman: From the practical and legal sense, we contend that that is true, although we would say that if the Court decides to liken him instead to a defendant on bail pending appeal, the same underlying bottom line holds.

You still have to focus on the fact that he is pending appeal, but it is the state's appeal, because his conviction no longer exists.

It has been found by a court of competent jurisdiction to be fatally flawed, hence of no force and effect.

Unknown Speaker: Why not liken it instead to a defendant who has been released on state habeas?

Isn't that the most precise analogue in the state system?

Mr. Friedman: It depends on whether or not you're talking about state habeas by a defendant who remains convicted, getting back to an earlier question that I believe Justice White asked, or a defendant who has been given, been granted a petition for post-conviction relief, which is what it is called in New Jersey, and the state wishes to appeal.

There is no case law on the subject as to what happens when a state district court judge grants a petition for post-conviction appeal... sorry... post-conviction relief.

But even there, the precise analogy--

Unknown Speaker: I don't care for the moment what the law is.

All I'm asking is isn't that the most precise analogue in the state system?

I mean, your argument is you should be doing... you're furthering a state interest, you've said, and you should be doing what the state does.

But the closest analogue in the state system is the granting of state habeas, isn't it?

Mr. Friedman: --Perhaps it is, Your Honor.

But we feel that the logic of cases like State against Johnson, the logic of the constitutional provision in New Jersey that assures all defendants not convicted to be bailable on sureties, means that even in that situation while the appeal is pending the analogue, even the state analogue that you've just described, is to a pre-trial defendant.

The fact remains there is no conviction to hold him.

Unknown Speaker: In the state system, there's a conviction and the defendant appeals, the pretrial rule does not apply there?

Mr. Friedman: No, because his conviction is valid.

Unknown Speaker: Yes.

Mr. Friedman: Under the rule in New Jersey--

Unknown Speaker: He's challenging it on appeal.

Mr. Friedman: --He is challenging it on appeal.

Unknown Speaker: And he stays in jail.

Mr. Friedman: While his conviction is valid.

Unknown Speaker: Yes.

Mr. Friedman: Until an appellate court decides that it is not.

At that point, we are, I admit, drifting on uncharted seas because we have no New Jersey appellate law that specifically says that.

I have the state's word for it in a footnote in their brief that there is no federal law.

There is certainly no analogue in the 1984 Bail Reform Act that covers that precise situation.

Apparently there is no case law.

But you have to look again at the state law.

Federalism requires that, and it seems to me that in the state like New Jersey, where unconvicted defendants are guaranteed bail until they are convicted, that a state post-conviction relief or a state appellate decision on direct appeal that would vitiate his conviction and set him free--

Unknown Speaker: But here the conviction has been upheld all through the New Jersey courts, hasn't it?

Mr. Friedman: --It has.

Unknown Speaker: It's not as if they have thought there was reversible error in the case.

Mr. Friedman: All that proves, it seems to me, with respect, Mr. Chief Justice, is that the state judgment has gotten all the deference it deserves up to the point at which a federal district court judge, a judge of competent jurisdiction, no matter how much the attorney general's representatives denigrate that judgment, that the state has been given all the deference it deserves by having the state be the first line of defense, if you will, for the vindication of constitutional rights.

Once the case is properly in the federal courts, than it is certainly within the power... as a matter of fact, it is the essence of the power... of the federal courts to disagree with the state judges and indicate that there have been constitutional violations that require his conviction be vitiated.

Unknown Speaker: But I don't think it follows from that that New Jersey would necessarily insist that he go free on his appeal from the federal district court habeas to the Court of Appeals for the Third Circuit.

Mr. Friedman: Well, Your Honor, again the New Jersey Constitution says what it says.

The fact of the matter is the state has conceded, if I understand your question properly, that there is no preventive detention in New Jersey, except for a convicted offender.

Unknown Speaker: But the state is here speaking for New Jersey and saying: We think this fellow ought to be held.

Mr. Friedman: I am not entirely certain, Your Honor, that you can say with absolute confidence that the state is speaking for the state of New Jersey on this issue.

The fact is that the New Jersey law in this issue--

Unknown Speaker: We've held in certainly other cases that the attorney general is presumed to speak for the state.

Mr. Friedman: --Your Honor, the attorney general is speaking on behalf of the conviction.

He represents the state of New Jersey, I don't doubt that.

But the fact remains that the position they are taking in this Court is contrary, I would say, to the position of the law in New Jersey on the subject that we're discussing.

To that extent, they differ from the state law, and they are asking federal courts to override state law.

Unknown Speaker: I don't know that there's any real, anything wrong with saying that on an appeal in the state system from a trial court order giving the defendant collateral relief and the state appealing, I don't know that it's so unreasonable to say that the rule that should apply on enlarging him is the rule that should apply on direct appeal.

Mr. Friedman: Your Honor, that would not perhaps be an unreasonable decision for state courts or the state legislature to make.

Unknown Speaker: Well, is it unreasonable for a state attorney general to say that's what the rule ought to be?

Mr. Friedman: The point is that the attorney general and I both agree that there is no case law either way.

What I'm relying on is the case law--

Unknown Speaker: What if there was case law in New Jersey that said the rule on an appeal of a collateral judgment is the rule that applies on direct appeal?

Then what should a federal court do?

Mr. Friedman: --The federal court should do precisely what it did in Carter anyway, because the fact is the federal court has its own rules to follow.

I do not think that what the state court does should affect what the federal court does, because all that proves is that under certain situations the state can handle the problem of its defendants any way it pleases.

And I think that that should certainly not affect whether or not a federal court should grant it in similar situations, since we are talking about concurrent jurisdictions here.

Your question raises the ultimate issue in this case, particularly as regards dangerousness.

The fact is that there is no roving commission in either the federal courts or the state courts to sweep dangerous people off the streets wherever they find them.

Dangerousness and the determination of who shall be held because they're dangerous follows the forms of the law.

The area of preventive pretrial detention or the area of detention of unconvicted defendants, whatever analogue you use, is a quintessentially state concern, and Carter pays deference to that state concern by allowing the states to act on this defendant, who is no longer subject to conviction, in any way they please as long as their decision is constitutional.

And after all, this Court has not determined whether preventive detention is unconstitutional in any case.

But the fact is that the Hobson's choice that their positing because they can't out a dangerous person away simply does not exist, or if it does exist it's because the polity, as I said, of the state of New Jersey, its Constitution and its voters, have determined that that's how they wish to run their affairs in the criminal justice system.

The Hobson's choice does not exist in any case.

There is nothing about what the federal court would do in the release decision that would prevent this appeal from going forward.

And what would simply happen is he would be released on a sufficient surety.

If the state instead, as I indicated earlier to Justice Scalia's question, decides that they wish to retry this person, then as Justice Scalia indicated earlier, by submitting the defendant once again to state processes on retrial, they cannot hold him.

What avenue is that out of their Hobson's choice?

The fact is that the state's right to appeal has ample protection in this Court, in the appellate court, regardless of what happens to this defendant in terms of his custody.

Their interests are protected in that sense.

Allowing the defendant to be held while the appeal goes on would do nothing more in a case like this one, where we've already passed the first anniversary of this appeal in the Third Circuit, than extinguish the defendant's rights to an effective remedy.

And the Court should pay some concern to that, because certainly the state's interests that Petitioners put forth as a party litigant are amply protected without any regard to Rule 23.

In closing, Your Honors, we do feel that the Carter decision as we have described it serves the interests of every party properly.

It serves the interests of this Court, that this Court has shown in federalism and comity, by allowing the states to act within their proper sphere.

It safeguards the rights of the defendant by allowing him to have an efficacious remedy while the appeal is pending.

And it would do substantial justice in a case of this kind.

If Your Honors intend to depart from Carter, I would submit it should do by finding an unmistakably federal interest or one that is related to the federal role in habeas cases.

Since the state has presented no such interest here, in our judgment, since no interest cognizable by the federal court could justify holding this defendant, whatever the test, we think that the decision of the Third Circuit en banc in refusing to grant a stay or to reconsider the Carter opinion should be affirmed.

If Your Honors have no further questions.

Rebuttal of John G. Holl

Chief Justice Rehnquist: Thank you, Mr. Friedman.

Mr. Holl, you have four minutes remaining.

Mr. Holl: That's all right, Your Honor.

Chief Justice Rehnquist: You mean you're waiving your time?

Mr. Holl: Yes, thank you.

Chief Justice Rehnquist: The case is submitted.