RICKETTS v. ADAMSON

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Argument of William J. Schafer, III

Chief Justice Rehnquist: Mr. Schafer, you may proceed whenever you are ready.

Mr. Schafer III: Mr. Chief Justice, and may it please the Court:

The issue in this case is whether the State of Arizona can prosecute John Adamson for the crime it dismissed when it entered into a plea bargain with him after he breached the plea agreement.

As we were selecting the jury to try Mr. Adamson for the murder of Don Boiles, he struck a bargain with the State.

He would testify in four different cases in return for a sentence of 48 to 49 years.

If he refused to testify or refused to be interviewed in reference to preparation for trial in this specific instance in any of these cases, the agreement was void and he would be subject to the original charge.

Adamson testified in three of the four cases.

One was the murder of Don Boiles.

On his testimony Dunlap and Robison were convicted.

When their convictions were reversed on appeal in March of 1980, Adamson refused to testify at their retrials.

He wrote us a letter--

Unknown Speaker: In the meantime he had been sentenced?

In the meantime he had been sentenced?

Mr. Schafer III: --Yes, he had been, Your Honor.

Unknown Speaker: Why did the State rush to judgment on the sentence?

Mr. Schafer III: I wouldn't classify it a rush to judgment, Your Honor, but I would say this, although it does not appear in the record.

I... we were concerned as to the problems not sentencing him would raise.

This was a unique case in many ways.

One of the unique features about it is that Mr. Adamson all during the time he was testifying up until the time of sentencing had been in local custody which was really a county jail.

That facility, as most county facilities in the State of Arizona, are not really adequate for holding anyone for an indefinite period of time.

It was our consideration that we should get on with sentencing Mr. Adamson so that he could get into federal custody as he finally did.

Unknown Speaker: Don't you normally wait until all the litigation is concluded?

How did you know you might not get reversed on the pending appeal?

Mr. Schafer III: We did not know that, Your Honor.

We also did not know how long that appeal would take and we were considering more than one case in this regard.

We also did not know how long the appeals would take in the other cases, and at the same time there was a problem that we could see about the incarceration itself.

Unknown Speaker: Well, it seems to me there ought to be a place in the great State of Arizona where you could have safe incarceration.

Mr. Schafer III: Well, it was more than safety, Your Honor.

I believe safety was a factor, but it was also expense and it was also inconvenience for not only the jailor but the jailee, and all those were a consideration in our minds.

Unknown Speaker: Where are Dunlap and Robison now?

Mr. Schafer III: Mr. Robison is still in prison on a different charge.

Mr. Dunlap is out.

He is not in prison.

Unknown Speaker: He is free?

Mr. Schafer III: Yes, he is.

Mr. Adamson wrote us a letter saying he would not testify unless we made additional concessions.

We told him that we would not make more concessions and that his refusal was a breach of the agreement which reinstated the original charge which included a possible death sentence.

We tried to force him to testify but he refused and we re-filed the original charge.

He attacked that re-filing unsuccessfully in the xx court immediately, and then with a special action in the Arizona Supreme Court, arguing in both instances that the re-filing was barred by double jeopardy principles.

We then did two things.

We filed a response to the special action in the Arizona Supreme Court urging that Court to construe the agreement and determine whether he had breached it, and then we also filed a motion in the trial court seeking to have Dunlap's retrial continued because it was just a week away.

After those two convictions were reversed by the Arizona Supreme Court, those cases were separated although they had started out as one case.

So, what we were facing were two retrials, one for Dunlap and one for Robison.

The first one was set, as I said, just a week away was the retrial for Mr. Dunlap.

The same day that we did these two things, Adamson moved to withdraw his Petition for Special Action.

He later said in one of his federal habeas corpus pleadings that he did that when it became clear to him that the question of his breach might be decided by the Arizona Supreme Court.

The Supreme Court refused to dismiss his petition.

They set the matter for a hearing and Dunlap's pending trial was stayed.

It was now clear what Adamson was trying to do.

He was trying to delay a judicial determination of whether he had breached the agreement until after the Dunlap trial started, with no resolution of that question, and the jury seated in the Dunlap trial.

If we wanted to pursue Dunlap, we would have no choice but to accede to Adamson's demands.

The only other choice would be to forget Adamson as a witness and dismiss the cases against both Dunlap and Robison, and Adamson was betting that we would not do that.

Adamson lost in the Arizona Supreme Court.

They decided that the plea agreement included retrials and that Adamson had breached the agreement and they reinstated the original information.

That was on Thursday.

The stay of Dunlap's trial was lifted on Friday, the following day, and his trial was set for the following Monday.

Our attempts at negotiation with Adamson were not successful, and without him--

Chief Justice Rehnquist: We will resume there at 1:00 o'clock, Mr. Schafer.

Mr. Schafer, you may proceed.

Mr. Schafer III: Mr. Chief Justice, thank you and may it please the Court:

When we decided that we did not have John Adamson as a witness, we moved to dismiss the cases against Dunlap and Robison, and Dunlap's was dismissed on that Monday, the day set for trial.

Adamson then was tried and convicted.

His conviction was affirmed on appeal by the Arizona Supreme Court.

He then went into federal court with a Petition for Writ of Habeas Corpus.

The Ninth Circuit held that we could not prosecute Mr. Adamson on the original charge because of the lesser included offense rule of Brown versus Ohio, and secondly, that Adamson did not waive his double jeopardy rights.

We believe that the circuit court was wrong on both of those counts.

First, the circuit court drew its own conclusions as to the meaning of the plea agreement and Adamson's letter to us.

It should not have done that, as that was a question for the Arizona courts.

That was, we contend, a matter of Arizona law and it was composed of determinations on factual issues, both things which are commonly set aside for decision by a state court, and once made, entitled to great deference and as to factual issues in a habeas corpus case, a presumption of correctness.

If, then, the finding of the Arizona court that Adamson breached his plea agreement is accepted, the next question is whether anything prevented prosecution on that original charge.

The Ninth Circuit said that Brown versus Ohio prevented the prosecution but we do not believe that that is correct.

As this Court noted in Jeffers versus United States, there are exceptions to the Brown lesser included offense rule.

One of those exceptions is where the defendant asks for two trials, or where his deliberate actions result in two trials.

In this case, Adamson's deliberate breach resulted in two trials and he knew that would be the result of his breach for he had agreed to that.

Unknown Speaker: Mr. Schafer, let me just ask one procedural question, if I may.

I guess the respondent raised the double jeopardy issue in his first federal habeas proceeding and he lost at the district court and in the Ninth Circuit.

Mr. Schafer III: That is correct, Your Honor.

Unknown Speaker: And certiorari was sought here and refused?

Mr. Schafer III: That is correct.

Unknown Speaker: And in the second federal habeas he did not raise the issue?

Mr. Schafer III: He did not raise it.

Unknown Speaker: And the Ninth Circuit Court of Appeals sui sponte ordered it briefed?

Mr. Schafer III: Correct, Your Honor.

Unknown Speaker: When the second habeas was on appeal there?

Mr. Schafer III: Yes.

Unknown Speaker: But your petition for certiorari raises no objections to that rather curious procedure?

Mr. Schafer III: We have not, Your Honor.

We find it curious but we have not raised it in the Petition.

Unknown Speaker: All right.

Mr. Schafer III: As this Court noted in Jeffers, there are exceptions to the Brown lesser included offense rule, and as I say, one of those is where the defendant himself asks for two trials or where his deliberate actions force two trials.

In this case Adamson's breach resulted in those two trials and he knew what he was doing.

Unknown Speaker: Mr. Schafer, if the Supreme Court of Arizona had come out the other way in construing Adamson's plea bargain, you would concede, I suppose, that what he said was correct?

Mr. Schafer III: I think I would have to, Your Honor.

Unknown Speaker: Yes.

If he hadn't breached his plea then he was entitled to have the government perform too?

Mr. Schafer III: Yes, if they had ruled that way.

Unknown Speaker: And as I understand, what he says is that as soon as he got the final word from the Supreme Court of Arizona on their construction of it, he offered to restore matters to the status quo ante as best he could.

Do you disagree with that.

Mr. Schafer III: I don't disagree with what he did.

I think I would phrase it a little differently than you did.

It wasn't as best he could.

What he said was, we'll go back to the original plea agreement and there is not much question.

We said no, we cannot do that.

We cannot go back to the agreement that you just breached.

We tried to come up with an agreement that would allow us to trust Mr. Adamson, and we could not construct such an agreement.

Unknown Speaker: And so, you say he construed... and I am not saying you are wrong, but you say he construed the agreement at his peril, so to speak, like most other contracting parties do.

It you are wrong in the eyes of the court, there is the final say, you have breached?

Mr. Schafer III: Yes.

Perhaps my question, the word "construe"... I think he just took a position,

"This is it. "

"We are not going to testify. "

Unknown Speaker: Isn't it rather hair-splitting to say that the state court has the ultimate word on what the contract means?

You agree that the federal courts have to have the ultimate word on whether indeed there was a voluntary waiver of the double jeopardy protection, isn't that right?

Mr. Schafer III: I think we have to concede, Your Honor, that that would be a federal question as to whether double jeopardy was waived.

Unknown Speaker: Well, there could hardly be a voluntary waiver if the meaning of the contract was unclear, could there?

Mr. Schafer III: Your Honor, I see that quite clearly and that's a factual determination, as to what were the terms of the agreement which, if I liken to--

Unknown Speaker: That's right, so it comes down to saying that the state court decides what the agreement meant but we decide whether the agreement clearly meant that?

I mean, you know, if that makes you feel better, I suppose you can put it that way.

But don't we have to decide whether the agreement clearly meant what the Arizona court said it meant?

Mr. Schafer III: --I wouldn't concede that, Your Honor.

I believe that is a factual question as to what the agreement actually said.

Unknown Speaker: How could it be... how could we hold that there was a voluntary waiver if we think the agreement was unclear?

Mr. Schafer III: I don't believe... well, in that kind of a scenario I believe I would have a problem and so would the Court in that regard.

Unknown Speaker: Right.

Mr. Schafer III: But I don't believe this Court can go back over to what the Arizona Supreme Court has already done, which is supported by the record.

Unknown Speaker: But do you agree that there must be a voluntary waiver?

Mr. Schafer III: Your Honor, it was just for the purpose of the answer to that question.

I do want to argue to this Court that Johnson versus Zerbst, for instance, which is played throughout the briefs, really does not apply in this kind of a situation.

I would make two arguments in answer to both of those questions in Johnson versus Zerbst, although it has been argued at length before we even got to this Court.

I do not believe that Johnson versus Zerbst would require anything different than what we have here.

If this Court were to say that Johnson--

Unknown Speaker: Well, what does apply if Zerbst doesn't, Scott?

Mr. Schafer III: --Your Honor, I believe that this Court has said, and I think the two cases are Tateo and Dinitz, if I recall, that in this kind of a situation, and I liken it to this where there is a retrial after reversal, that the considerations that go into Johnson versus Zerbst really do not apply and perhaps they should not apply in this situation.

Unknown Speaker: Well, I agree with you on that, but because I think that is what U.S. versus Scott said specifically.

Hence, I am asking you whether you are content with the Scott standard.

Mr. Schafer III: I believe I would be, Your Honor, and my argument is that Johnson versus Zerbst really should not apply here because there are other considerations that this Court has to have in mind and they could not be fulfilled, I think in most of the cases, if we were to apply a Johnson versus Zerbst theory to this and require that there be a knowing and voluntary waiver by the defendant.

However, if this Court is to say that Johnson versus Zerbst applies, it seems to me that this record is quite clear that Mr. Adamson knew exactly what he was doing.

There is a very lengthy plea taking by Judge Birdsall, which as I recall is about 35 pages, where this is discussed with Mr. Adamson, the plea agreement.

In fact, every one of the paragraphs in the plea agreement is discussed and at the end of that, and all through it, he indicates that he knew exactly what he was doing.

I believe this case is more like Ohio versus Johnson in that Mr. Johnson pleaded to two of four counts.

The argument was raised that the lesser included offense rule came into play and double jeopardy barred it, and this Court said no, that that is not true.

Underlying the double jeopardy principle is a realization that there are few hard rules that can be drawn, and that the solution in each case lies more in an analysis of the respective interests involved.

Adamson had an interest, in seeing to it that the state did not prosecute him repeatedly for the same crime.

He also had an interest in retaining control over whether his guilt would be determined at one sitting before one tribunal.

He has not been denied either of those interests.

We have not prosecuted him repeatedly and he retained control over the course his trial would take, giving up that control when he entered into the plea agreement.

On the other hand, the state's interest is in seeing to it that we have an opportunity to marshal our forces and present our case against John Adamson.

The Ninth Circuit opinion denies us that opportunity and it should be reversed.

I would like to reserve the rest of my time.

Unknown Speaker: All this could be avoided had you not had him sentenced, couldn't it?

Mr. Schafer III: It may well have been.

Argument of Roy T. Englert

Chief Justice Rehnquist: Thank you, Mr. Schafer.

We will hear now from you, Mr. Englert.

Mr. Englert, Jr.: Thank you, Mr. Chief Justice, and may it please the Court:

There is no need in this case for a knowing, intelligent and voluntary waiver of double jeopardy rights above and beyond that which is clearly contained in the plea agreement itself.

Indeed, in Scott this Court has held that when it is the defendant's action that brings about the need for successive prosecution, concepts of waiver need not be invoked.

The Court's decisions in the appeal cases and the mistrial cases have not rested on waiver rationale.

To take another concrete example, in Jeffers the defendant objected to the government's attempt to have the continuing criminal enterprise and conspiracy counts all joined in one trial.

When he failed in that effort, he... I am sorry, when he succeeded in that effort he surely was not entering into a Johnson v. Zerbst knowing and voluntary waiver of his right not to be free of double jeopardy, because it wasn't until this Court's decision in Jeffers that it was clear whether CCE and the underlying conspiracy were greater and lesser included offenses.

Nonetheless, this court held that because of the defendant's action it was appropriate for him to be tried separately on the greater and lesser included offenses in that case.

The fundamental question in this case is whether a defendant can breach his plea agreement but nevertheless prevent charges from being reinstated as the plea agreement said they would be, on the grounds that the double jeopardy clause automatically prevents reinstatement.

Unknown Speaker: Mr. Englert, do you think that it would be possible for a defendant who had entered into a plea agreement of this type to ever make a good faith challenge to a provision in the agreement that the defendant thought was unclear without thereby in effect waiving the double jeopardy--

Mr. Englert, Jr.: It most certainly would, Your Honor.

To take this case as an example, if what the defendant had done had been to file some kind of a motion for clarification before Judge Birdsall or before any other appropriate court in Arizona, saying a legitimate disagreement about the meaning of this agreement has arisen, I cannot imagine that a state court would find pursuing that route to be a breach of the plea agreement.

Unknown Speaker: --But by taking the route of challenging the enforceability of the agreement and refusing to testify unless and until it was clarified as it was in this manner, would not suffice?

Mr. Englert, Jr.: I should think not, Your Honor.

I should think it would not suffice.

And I might add word about what exactly was done in this case.

Mr. Adamson did not... Mr. Adamson's counsel did not write a letter saying,

"We have a disagreement about this. "

"Let's work it out. "

The letter of April 3rd, 1980, which is reprinted at pages 106 to 110 of the Joint Appendix, stated Mr. Adamson's refusal to testify unless his non-negotiable demands were met.

Unknown Speaker: You are speaking now of the April 1980 agreement?

Mr. Englert, Jr.: Your Honor, I am speaking of the April 30, 1980 letter from Mr. Adamson's counsel.

Unknown Speaker: Do you feel that was a breach of the agreement?

Mr. Englert, Jr.: Absolutely.

Unknown Speaker: Well, I thought it was conceded that it was not one.

Mr. Englert, Jr.: Your Honor, I was not at the argument before the Ninth Circuit.

I understand it may in fact have been conceded at that point.

But I think if you look through the pleadings that the State filed--

Unknown Speaker: Well, if it is conceded, why are we bothering with it up here?

Mr. Englert, Jr.: --That concession was mistaken, and that, I believe, is made clear starting with the letter of April 9th, 1980 from the State and continuing through six years of proceedings in State courts, federal habeas courts.

It certainly has been the State's position that the April 3rd letter was breached.

There was a preceding conversation on April 2nd which was reconfirmed by that letter of April 3rd, in which Mr. Adamson refused to testify unless his non-negotiable demands were met.

That is shown by the very first sentence in Mr. Adamson's counsel's letter.

That refusal to testify on April 2nd was a breach of the agreement.

Mr. Schafer's letter of April 9th reflects another conversation, a conversation which defendant now denied, to be sure, but nothing else in the record shows any denial.

That April 9th conversation appears to be a breach of the agreement.

It was not Mr. Adamson's position that this was a disagreement that needed to be gotten before a court as quickly as possible.

Indeed, Mr. Adamson resisted the State's attempt to get the agreement construed.

On page 86 of the Joint Appendix there is a very clear statement by Mr. Adamson's counsel to the Supreme Court of Arizona that Mr. Adamson has never asked any court to construe this agreement.

His position was that he did not want the agreement construed, and as Mr. Schafer suggested in his argument, the timing of the Dunlap and Robison retrials is critical to take into account in terms of what was going on in the month of May, 1980, when this action was being brought before the Arizona Supreme Court.

It is the position of the United States that there really is no double jeopardy issue in this case, and despite the holding of the Ninth Circuit, respondent's brief doesn't place most of its effort in an attempt to say that there is any real double jeopardy issue in this case.

Their position is that there is something special and unusual about this case, that somehow it was fundamentally unfair for the Supreme Court of Arizona to find the breach it did in this case because there was just a good faith disagreement and as soon as it got resolved Mr. Adamson was willing to testify.

First of all, I don't know what federal constitutional issue that raises.

At best, in some extreme case, there might be an argument that an insupportable state finding of breach violated due process, but this is not that case.

There is ample evidence in the record that Mr. Adamson refused to testify unless his demands were met.

The agreement, as interpreted by the Supreme Court of Arizona, made clear his obligations.

The Ninth Circuit and the district court, the first time they had heard this case, found the interpretation of the agreement to be eminently reasonable, and we submit, correctly so.

We think that this case was summed up extremely well by the Ninth Circuit in 1981, the first time it considered this precise issue.

As the Court said, on page 161 of the Joint Appendix,

"In his written refusal to testify, and list of demands, Adamson acknowledged that he ran the risk of reprosecution for first degree murder under the terms of the plea agreement. "

"He cannot now claim immunity in what proved to be a losing gamble. "

If the Court has no further questions, thank you.

Argument of Timothy K. Ford

Chief Justice Rehnquist: Thank you, Mr. Englert.

We will hear now from you, Mr. Ford.

Mr. Ford: Thank you, Mr. Chief Justice, and may it please the Court:

This case most certainly does involve a double jeopardy issue.

Mr. John Adamson was in prison serving the second year of a prison term for the murder of Don Bolles when he was charged with the murder of Don Bolles.

Now, the issue here arises at an unusual context.

The context has to do with... and begins with an agreement between attorneys and a disagreement over what the terms of that agreement were.

Like most such disagreements, it arose because something happened that nobody anticipated when the agreement was entered into.

What everybody anticipated, when the agreement was entered into, is that Mr. Adamson would plead guilty.

He would tell the State who else was involved in this murder.

He would testify against those people and he would testify against others involved in other crimes and at the conclusion of that testimony he would be sentenced and after that, in a separate provision of the agreement, it said he would be transferred from Pima County Sheriff's custody into a different form of custody which turned out to be Federal Witness Protection program custody.

Mr. Adamson did plead guilty.

He did solve this crime for the State of Arizona.

He did testify against these other people, and not just once or twice or five times or ten times, but he counted 14 times, 31 days, 190 hours, in court, 205 he counted and it is undisputed, interrogative sessions outside of court.

He waived his rights.

Now, that includes some occasions after the breakdown of the plea agreement where he continued to voluntarily cooperate with federal authorities in this matter.

What happened that was not anticipated was that after the State sentenced Mr. Adamson, and he was sentenced after he testified in all those cases and everybody was convicted, and after he was transferred into federal custody one of the convictions was reversed.

It was reversed on a ground that required Mr. Adamson's immunity agreement to be renegotiated because the State for some reason, and it's not in the record... and I'm at a disadvantage here because I have to stick to the record that's before this Court, and of course there has never been an evidentiary hearing on these questions and I was not counsel at this stage... but for some reason the State refused to give Mr. Adamson immunity as to a receiving stolen property crime that involves selling an illegal suit that got tied up in this set of facts.

Because of that he took the Fifth Amendment and there was cross examination limitations during the Dunlap and Robison trials, and that was why their cases were reversed.

So, when that happened everybody knew that there had to be further negotiations between Mr. Adamson and the State because that changed his situation.

Mr. Schafer said so in the newspaper, and Mr. Adamson read that.

Mr. Adamson's counsel said so, and in fact, there were negotiations.

They started discussing, what are the terms and Mr. Adamson's position and his lawyer's position was,

"We have performed. "

"We have testified time and time and time again. "

"We have been sentenced. "

"We have been transferred. "

"Our part of the bargain has been completed. "

"So for further testimony, we want further considerations. "

Primary in his mind was safety.

This is an extremely volatile, dangerous case involving allegations of organized crime and governmental corruption, and Mr. Adamson's safety was placed in the record by Mr. Schafer as the reason why they couldn't find a place for him in the State of Arizona and had to transfer him.

For his own safety, is what Mr. Schafer said back then.

Mr. Adamson's lawyers took a tough position.

In Mr. Adamson's words in that letter of April 3rd, he asked for the moon.

That was their position in negotiations.

He said it may have been untutored, but it was in good faith because in that letter he never said,

"I repudiate this agreement. "

"I want to go back. "

"I want this to be undone. "

He said,

"This is how we read this agreement. "

or his lawyer said this.

"This is how we read this agreement. "

"This is what we agreed on when we entered this agreement, that we would testify and then we would be sentenced, and that has been done and now there has to be additional consideration and here is the consideration that we demand. "

He did not say, and it is important to remember the context that we are in here of negotiations between attorneys, and frankly there is nothing in the record that there was any meeting on April 2nd.

We have a footnote regarding the reference to April 9th.

We know nothing about any such meeting.

There has never been an allegation of any of those two things happening.

Again, we have a problem here.

There has never been an evidentiary hearing.

But I know nothing of those.

The question that has been raised, and what I understand to have happened, is there was this call on April 2nd and the response was this letter.

And the letter did not say, John Harvey Adamson hereby refuses to testify in any further cases, signed William Feldhacker.

The letter said, here's our legal position.

Here is how we construe the agreement.

Here are the additional items of consideration we wish in addition to testimony, and if you find that there is an absolute prohibition to any of these we can anticipate that Mr. Adamson will not testify in any future trials.

Now, that is bargaining.

That is negotiating position.

That is not a breach of the plea bargain agreement.

The plea bargain agreement never said anywhere, you will not write a letter, you will not assert a position through counsel.

Unknown Speaker: In the sentence before that, Mr. Ford, he said,

"I would like to advise you that the demands outlined above are basically non-negotiable demands. "

That doesn't sound like a letter asking for negotiations.

Mr. Ford: Well, I think it is an inartful letter asking for negotiations, Your Honor, and I think that both sides in this case, if they were at this point the negotiations broke down, and I think partly because of these kind of miscommunications between counsel.

The position Mr. Schafer has described his response as taking... of trying to get Mr. Adamson to go along.

It's not how Mr. Adamson said, and his counsel have placed on the record, that they interpreted it, they interpreted it as, "You have already breached", and that is how the Solicitor General read it in their brief here in this Court and that is how I read it.

"We may now prosecute you. "

"You are subject to prosecution. "

Therefore, then, Mr. Adamson did not refuse to testify, or did not testify at this pretrial hearing.

Justice Rehnquist, it is important for me to differentiate, I think throughout this, the contract questions and the waiver questions and the syllogism that Mr. Schafer's argument proceeds with, which says he agreed, if he breached, he would be reprosecuted.

He breached; therefore he can be reprosecuted.

What that does is just substitute one legal conclusion for another.

The legal conclusion of breach is not what leads to the legal conclusion of waiver.

What the plea agreement said is, if he should refuse to testify then the agreement is null and void and he may be reprosecuted.

The only time in all these years Mr. Adamson refused to testify was in those proceedings before Judge Myers after the State had said,

"You are already in breach. "

"We are going to prosecute you for all these things. "

Mr. Adamson's lawyers... when Mr. Adamson refused he did not refuse in the sense of saying,

"Well, whatever the Court says, I am not going to say another word. "

"I am standing on my Fifth Amendment privilege. "

Indeed, Judge Myers did at first go along with the State's argument and say,

"Mr. Adamson, you have to testify. "

"I'm ordering you to testify. "

And then what happened was, he did not defy the court or the agreement.

His lawyer stood up and said,

"Just a minute, Judge Myers, please let me explain to you what has happened here. "

and he explained this chronology and he showed the letter that Mr. Schafer had written that had threatened and said that he was subject to reprosecution then.

And he said,

"In light of this and in light of our position the plea bargain agreement has been satisfied, we believe we have no double jeopardy. "

--or, I'm sorry, "self-incrimination protection".

Unknown Speaker: I don't understand your position.

Is your position that that letter does not constitute a refusal to testify?

Mr. Ford: That letter does not constitute a refusal to testify.

Unknown Speaker: You mean if I say,

"I will only testify if you pay me ten million dollars. "

that's not a refusal to testify?

Mr. Ford: If you say--

Unknown Speaker: Sort of like assault or--

Mr. Ford: --I want ten million dollars for my testimony and if you don't give it to me we can anticipate that I won't be testifying.

That is a posturing.

That is an attempt to try and achieve something through a very tough negotiating position, but it is not an absolute refusal to testify.

He was not called into court and asked a question and said, "I refuse to testify".

Unknown Speaker: --The agreement surely contemplates his agreement to testify without any further preconditions, so whether you're breaking the agreement simply depends upon whether you are refusing to testify without preconditions or not.

Did the agreement envision that he could comply with it by saying,

"Of course I'll testify; however you have to pay me ten million dollars? "

That's not what the agreement contemplated, is it?

Mr. Ford: I think the agreement contemplated that he could be reprosecuted if he refused to testify.

Unknown Speaker: If he refused to testify period, not if he refused to testify including with conditions, right?

Mr. Ford: That's correct.

But Justice Scalia... I mean, saying,

"When you call me into court next week I don't think I am going to testify unless you pay me ten million dollars. "

is not a refusal to testify.

Even in contract law it is not.

Unknown Speaker: A person wouldn't be entitled to treat a contract as breached upon that statement?

Mr. Ford: Under the restatement, no.

Under the vast majority of state laws, my understanding is no.

This kind of a statement as far as I can tell, nowhere in the law is treated as a breach of the contract and certainly not one that permits and relieves the State from all of its obligations.

This is not just a situation... if this had happened in the commercial media where somebody had ordered 1,000 widgets and 900 were delivered and then there was a dispute among their lawyers over whether the additional hundred had to be delivered, one side could never say even if they were proven right that the other hundred was owing,

"We get all our money back, we-- "

Unknown Speaker: But supposing the seller delivers the 1,000 widgets and says,

"I know the agreed price was $200 but I now want $300 for them. "

I think the buyer under the law of anticipatory breach can refuse and say, "You have breached".

Mr. Ford: --Well, under the law of anticipatory breach as I understand it, Mr. Chief Justice, if the person says,

"Unless you come up with $300 we can anticipate that on the due date for these widgets I am not going to deliver. "

That is not treated as a breach by most courts.

But remember--

Unknown Speaker: You use the word, "We can anticipate that", instead of, "I won't"?

Is the magic word "anticipate"?

Anyway, it isn't "anticipate" here.

It says,

"It is John Adamson's position that if the State of Arizona desires Adamson's testimony the following conditions must be met. "

I read that as quite categorical.

"You meet these conditions or I don't testify. "

Mr. Ford: --It is very close to a refusal, but it is... again, Justice Scalia, I think it is important that we are talking in a context of agreements between lawyers and discussions between lawyers, where lawyers can take and disagree over their position without forfeiting all their client's rights.

Unknown Speaker: But that is not just what the law... when you make noises like a lawyer you have consequences like lawyers, and that's what the doctrine of anticipatory breach is all about.

You can't go around saying

"I'm not going to do it. "

without consequences.

Mr. Ford: Without... well, let me retreat from the position and point out, because I do not want to get fixed to this question of whether or not... I mean the State, the important thing is, I guess, if this is a breach, I think as your question earlier to Mr. Schafer pointed out, Mr. Roberts, the Assistant Attorney General of the State of Arizona conceded in the Ninth Circuit this wasn't a breach.

Unknown Speaker: But we are not bound by concessions made in the Ninth Circuit.

Mr. Ford: Well, perhaps you are not, Mr. Chief Justice, but at least it indicates that a reasonable person with some knowledge of this case and the law could believe that Mr. Adamson could write that letter or his lawyers could write that letter without breach.

Unknown Speaker: That it may indicate, but certainly we evaluate for ourselves what is before us.

We are not bound by concessions made by parties in another court.

Mr. Ford: I agree, Your Honor, and of course it's not... again the question is not breach.

It seems to me the question is whether in the context of this agreement Mr. Adamson committed an action that constitutes a waiver of a constitutional right which clearly had attached to him.

Now, in order to even get to this question, of course we have to say, a waiver can occur through counsel.

We have to say that the obligations of the contract were so clear that by taking this position that he was making a waiver--

Unknown Speaker: Well, why do you need a waiver in this case, Mr. Ford?

Certainly cases like Dinitz and Scott say that where a retrial occurs as a result of something the defendant did the waiver doctrine doesn't apply?

Mr. Ford: --Well, Dinitz and Scott, as I understand them, involve a different double jeopardy interest.

And what this Court, I think has emphasized to be a secondary double jeopardy interest and that is the interest in continuing before... or completing the trial before a single fact finder.

Unknown Speaker: That is secondary.

Mr. Ford: This Court certainly said, I believe in Dinitz itself, that this is not the same as the central common-law basis for the double jeopardy clause which are the three common-law pleas and one of those is what is involved in here.

The French, and my French is awful... autrefois, convict.

That is Mr. Adamson's plea and it is the center and the core of the double jeopardy clause that he is relying on for protection here, not... he's not... again although those cases say, we're not analyzing this in a waiver term, that of course, that whole line of authority arose out of the Green case where the State was arguing and based on some 19th Century precedent that this is a waiver.

The Court refused to inject that body of law against the defendant.

But even if you take the Court's terms, and I have looked at all these cases, Jefferson, Scott, Dinitz, and they talk about voluntary choice and the defendant's, deliberate election and indeed, they are all absolutely accurate in my mind.

The defendant in those cases chose to have exactly the consequence that he got.

He said,

"I want to have another trial. "

"I want this trial suspended and to try again. "

Or he said,

"I want to vacate my plea. "

Unknown Speaker: Well, that depends on what voluntary election you want to talk about.

You are insisting that the voluntariness apply to the April 2nd letter.

Why shouldn't the voluntariness apply to the original plea bargaining agreement?

That is, he voluntarily agreed when he signed that agreement that if he should breach it he could be retried.

It later happened that he did breach it.

Now, why must one insist that the condition of knowing and voluntary apply to the breach as opposed to merely the signing of the agreement?

That was the deal.

He voluntarily agreed that if he should breach the agreement he could be retried.

And he--

Mr. Ford: Justice Scalia, I hate to split this hair, but it's a critical hair in this case.

Unknown Speaker: --I understand.

Mr. Ford: And that is, he did not agree that if he should breach he could be retried.

He agreed that if he refused to testify he could be retried.

And that is a different thing, and that is the difference between a state law question in this case and a federal law question in this case.

Now, with regard to that agreement the Ninth Circuit, I think, was absolutely correct when they said there is no way to read the plea agreement itself as a waiver of double jeopardy because it only says, if something happens in the future then a consequence can occur that implicitly waives double jeopardy, if you read everything against Mr. Adamson.

Now, there is no explicit... there were many constitutional rights listed there and they didn't put that one in.

The reason they didn't put that one in is because they didn't think he was going to be sentenced until everything was over.

What happened was, he was sentenced and he thought everything was over and the other side thought it was not, with the exception of this Ashford Plumbing thing.

At that point it seems to me that you can't have a defendant sign kind of a contract of adhesion that says, "I agree"... perhaps that's the wrong phrase.

I'm not a contract lawyers.

But you can't have a defendant say,

"By entering into this agreement we've got you; now you've waived your double jeopardy rights. "

Unknown Speaker: Why can't you?

Mr. Ford: There is a question of voluntariness in the future.

Unknown Speaker: Just bringing waiver, what's the matter with it?

Mr. Ford: It's a waiver that involves two different event.

Even if you imply the waiver, which this Court refused to do in Menna versus New York, the implied waiver only occurs with first, the signing of the agreement and then the later event.

It seems to me that at least the later event has to be voluntary.

You couldn't... this Court would not entertain a situation where if Mr. Adamson was unable to... was hospitalized and was unable to get to the courthouse the state could say,

"He refused to testify and it says in here he has failed to testify. "

That kind of... there's got to be a voluntariness.

If we're going to allow these kind of agreements to supplant constitutional rights, they can't take away the basic essence of those constitutional rights and the loss of them.

The--

Unknown Speaker: So, there was really no way to enter into this plea agreement?

Given what later happened, there was no way that the State could have struck an agreement with your client?

Mr. Ford: --I think there absolutely was.

They could have written into the agreement, either as they did, it will be over at sentencing or if the defendant is sentenced prior to any testimony then he agrees to waive double jeopardy with regard to any later refusals to testify.

Then, they would have had exactly the same agreement and that's what... in fact, that's what the State of Arizona does now.

There is a reported case which we have cited.

That is what prosecutors do all over the place.

It is a very simple thing to do.

It avoids misunderstandings and that is what we had here.

Unknown Speaker: Well, what if the agreement had just right out said he would testify as often as necessary against these people, if they are convicted after the first trial and appeal successfully he will testify at the second trial?

Let's suppose the obligation he undertook was very plain and then he... there was a reversal of the conviction and then he refused?

Mr. Ford: It has been our position from the beginning, at least arguendo, I think, Justice White, that if he were with clear knowledge that he was in breach to have done an act that the agreement said clearly was... waived his double jeopardy rights--

Unknown Speaker: Well, he just refused to testify and refused to perform a contractual obligation.

Do you say that just automatically is a waiver of his double jeopardy right?

Mr. Ford: --Again, I am having difficulty with the contract language.

I think the language is important because the contract question is separate from the federal question.

But if the agreement said, "I hereby"... in the clearest terms...

"I hereby waive my double jeopardy rights and agree-- "

Unknown Speaker: No, no, my example is, he says,

"I will testify against these people as often as necessary. "

Mr. Ford: --And I agree that--

Unknown Speaker: And then, then after the reversal he says,

"Yes, I know I promised that I would testify again but I'm not going to now. "

"I just refuse. "

"I know I am breaching my agreement but here I've been in jail. "

"You can't retry me. "

"That's double jeopardy. "

Mr. Ford: --If the agreement says,

"Under those circumstances I agree I can be retried. "

then I think that the--

Unknown Speaker: Well, the agreement didn't say that.

All it said was what his obligation was.

Mr. Ford: --I don't see how... the loss of federal constitutional rights doesn't follow automatically from any breach of contract.

That is why I think the contract question--

Unknown Speaker: Would you answer Justice White's question for me if you won't answer it for him?

Mr. Ford: --I am sorry, Mr. Chief Justice.

I guess I don't understand.

Unknown Speaker: The question is, if the agreement said,

"I will testify over and over again as long as necessary. "

he testifies once, he is sentenced, the cases... the Dunlap case is reversed and the Robison case, the State says,

"Come on, perform your duty. "

He says,

"I know that's what the contract says but I refuse. "

There is nothing more than the present plea agreement has in there about double jeopardy.

Mr. Ford: I am sorry.

That is the part I didn't understand, Mr. Chief Justice.

If the present plea agreement language is in there that says he may be reprosecuted under those circumstances--

Unknown Speaker: It simply says,

"I will testify as often as necessary. "

and then he just refuses and he says,

"And by the way, you can't retry me because I have been in jail and I've already been convicted. "

You know, that old French phrase--

Mr. Ford: --Unless there is something in the plea agreement that either implicitly or explicitly waives double jeopardy--

Unknown Speaker: --Well, say what's in this plea agreement.

Mr. Ford: --If what is in this plea agreement was in the plea agreement in the situation that Justice White has described, we would say that a waiver could be found under those circumstances, and a knowing and voluntary waiver could be found.

If he actually went into court and did what he had promised--

Unknown Speaker: Even if he hadn't been sentenced and spent time in jail?

Mr. Ford: --If he has waived the double jeopardy right.

I have not taken the position in this case, which the Tenth Circuit has taken, and if it is not necessary, certainly for the Court to reach the question in this case that double jeopardy can never be waived.

The Ninth Circuit was very clear in saying that their holding was, even if it can be waived.

Unknown Speaker: So, you say that--

Mr. Ford: It certainly was not here.

Unknown Speaker: --Didn't he... I guess he did plead... he pled guilty to the lesser offense before there was any trial of these other people?

Mr. Ford: It was mid-trial, mid-jury selection, Your Honor.

Unknown Speaker: He pled guilty?

Mr. Ford: Yes.

Unknown Speaker: He pled guilty and suppose then after pleading guilty to the offense, suppose that he then refused to testify at all, even once?

Mr. Ford: Right at that moment?

Unknown Speaker: Right.

Mr. Ford: Number one, again, of course, it could be construed as a waiver of double jeopardy under the same circumstances and should be.

Number two, though--

Unknown Speaker: Well, he did... from a refusal to perform his contractual duty, you would say, is equivalent, you would say, to a waiver of double jeopardy?

Mr. Ford: --I do not say they are equivalent to.

I say that from the language in this contract the Court could under those circumstances find a waiver but that breach--

Unknown Speaker: Suppose we found that, and you would say weren't wrong then?

Mr. Ford: --Found that with regard to a waiver under those--

Unknown Speaker: Yes.

Mr. Ford: --circumstances, I would say you were not wrong.

At least I could concede that arguendo for this case.

There is a difference.

Let me... perhaps one illustration can explain it.

Unknown Speaker: Well, wasn't the conviction when he pled guilty?

Mr. Ford: Well, that's a good question.

I think that, as I understand double jeopardy law now from reading Dinitz and the cases that have gone over the history of it and the interests involved, I think that double jeopardy does not attach until in a guilty plea situation, there is a sentence.

I think that really, implicitly, that is what is held by Ohio versus Johnson, that you can't just say guilty now, double jeopardy; that there has to be more that implicates the core principles of the double jeopardy clause and that the sentencing does that, certainly under Arizona law and the understanding of the parties here, the sentencing did that.

So, the double jeopardy question... the contract question, for example in this case, the contract protected Mr. Adamson from prosecution for a number of other crimes.

The federal Constitution did not because jeopardy had not attached as to those crimes.

After this breakdown in the Arizona Supreme Court's holding he was prosecuted and given lengthy prison sentences for those other crimes.

We have raised no double jeopardy objection to those because that was a separate question.

That was a state law contract question.

Unknown Speaker: Mr. Ford, can I ask you a question about the agreement because you are getting into the other crimes now which are one of the things that interests me.

In paragraph 8 of the agreement it says that he will be sentenced at the conclusion of his testimony in all of the cases referred to in this agreement and Exhibits A and B which accompany it.

Is it... do I correctly understand that his sentencing did not take place until all of the testimony the State wanted had been given?

Mr. Ford: There was one case left, Justice Stevens, and that involved this Ashford Plumbing case.

What happened was, just before they went down to sentencing Mr. Schafer and Mr. Adamson's lawyers got together and Mr. Schafer said, well, I want you to understand we may still call you for Ashford Plumbing.

Mr. Martin Feldhacker said, Mr. Adamson that and that's why the statement was made on the record that was, and of course that's the statement... that's what the Arizona Supreme Court found was the binding agreement, not the plea agreement.

They found there was ambiguity in the plea agreement clarified by this colloquy, but what they didn't know is that counsel had had an out of court discussion in which they said,

"We're talking about one case, Ashford Plumbing, and that's what we're agreeing to. "

Unknown Speaker: And also I want to be sure on this.

Paragraph 18 says,

"The defendant is to remain in the custody of the Pima County Sheriff from the date of the entry of his plea until the conclusion of his testimony in all of the cases in which the defendant agrees to testify as a result of this agreement. "

Now, when was he transferred from the custody of the Pima County Sheriff elsewhere?

Mr. Ford: The day after sentencing.

Unknown Speaker: The day after sentencing, so it was also before that one bit of testimony, the last one you mentioned, had taken place?

Mr. Ford: The last one never has taken place.

It has never been prosecuted.

Unknown Speaker: You did not contend, I take it, at any time that the transfer of custody violated the agreement?

Mr. Ford: No, it was the--

Unknown Speaker: Your interpretation was the agreement had been fully performed at the time of the transfer; that's your reading?

Mr. Ford: --I wasn't there.

That was their understanding and that is our position now, that that was what the agreement meant.

The Arizona Supreme Court again, in construing this, they never said,

"Oh, no, this contract means he doesn't have to testify. "

or,

"He does have to testify for sentencing. "

This says, well, maybe there is an ambiguity created by paragraph 8, if you read their statement.

But then look at this colloquy, and they relied on the colloquy to establish this ongoing obligation.

Counsel knew and Mr. Adamson knew--

Unknown Speaker: That that only pertained to the one case?

Mr. Ford: --It pertained to the one case and that's what Mr. Schafer said.

This is a case in which the double jeopardy clause was being asserted as a shield by a defendant who said,

"I have testified. "

"I have testified truthfully. "

"Many people have gone to prison. "

"I have endangered myself. "

"I have done what I was obligated to do, and then took perhaps an extreme position in trying to get something more in advance of the State's request for more. "

But the double jeopardy clause, I believe, must give him some assurance that, having done that, having fulfilled his obligations to the best of his knowledge and belief and to his counsel's knowledge and belief, and having been sentenced and sent to prison for this crime, that at some point there is an end.

The State cannot continue to demand from him more and more and more or at the least when they do, he has the right to object and to say,

"No, this is not my obligation. "

"This is my position and it's a different one from yours. "

without fear of losing everything and letting the State keep all the benefits of its bargain and all the people in prison that he's testified against and him and his admission of guilt and give him nothing and indeed in this case, take his life.

Thank you very much.

Rebuttal of William J. Schafer, III

Chief Justice Rehnquist: Thank you very much, Mr. Ford.

Mr. Schafer, you have two minutes remaining.

Mr. Schafer III: The agreement was that Mr. Adamson would testify in four cases.

He testified in three.

Paragraph 8 of the plea agreement concerning the sentencing was gone over by Judge Birdsall at the plea taking of Mr. Adamson, and I don't think there is much question that the explanations of Mr. Adamson, the explanation to his attorneys, and nothing was said controverting that, was that this provision was in the agreement to get around the requirement of the State of Arizona that you must be sentenced within 30 days of the plea.

At page 24 of the Joint Appendix that you have before you, that is exactly what Judge Birdsall says.

It reads, paragraph 8 and it says,

"You have a right to be sentenced within 30 days. "

and that's what--

Unknown Speaker: And this of course waives that.

It does say... one could read this agreement to indicate that the parties thought that at the time he was transferred from the Sheriff's custody to prison or wherever he was transferred that he would not get that transfer until he had fully performed his testimonial obligation?

It is certainly a permissible reading, isn't it?

Mr. Schafer III: --Your Honor, I hearken back then to the Arizona Supreme Court findings.

I believe there is no question in their opinion, and this was specifically argued at the oral argument before the Arizona Supreme Court, the paragraph 8.

They said, and I quote to you... this is from page 113...

"if item 8 specifically appears to limit the availability of the petitioner for additional testimony, the foregoing exchange. "

--and that was the exchange at the sentencing itself about he has to come back--

Unknown Speaker: But what did they say about paragraph 18?

Mr. Schafer III: --They do not discuss paragraph 18.

Unknown Speaker: Because it does say he is to remain in the Sheriff's custody until the conclusion of his testimony in all of the cases in which the defendant agrees to testify as a result of this agreement.

Mr. Schafer III: Yes.

Unknown Speaker: So, does not that contemplate his transfer will not occur until he has performed his testimonial obligation?

Mr. Schafer III: Well, I think a reasonable reading of that provision is that simply when he is sentenced he is going to go into federal custody.

There was a reason for the federal custody.

No, and I don't think a reasonable reading of that would be that his obligation is totally finished.

It is much like the paragraph number 8, which says he will be sentenced at the completion of his testimony in these cases.

That is what the Arizona Supreme Court was referring to as I was going to quote on page 113.

Chief Justice Rehnquist: Thank you, Mr. Schafer.

The case is submitted.