Transcript

MARION REYNOLDS STOGNER, Petitioner v. CALIFORNIA

No. 01-1757

March 31, 2003, Monday, Washington, D.C.

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:16 a.m.

PROCEEDINGS

(11:16 a.m.)

CHIEF JUSTICE REHNQUIST: We'll hear argument next in No. 01-1757, Marion Reynolds Stogner v. California.

Mr. Najera.

ORAL ARGUMENT OF ROBERTO NAJERA ON BEHALF OF THE PETITIONER

ROBERTO NAJERA: Thank you.

Mr. Chief Justice, and may it please the Court.

Petitioner comes before the Court asking one thing and one thing only, that the State of California be bound by its decrees and its laws that have guided it throughout the history of California, that the State and the Federal Government be bound by the laws of the land that have been in place essentially since the State's foundation.

Since early on in this country's history, Chief Justice Marshall looked at a matter similar and said it would be repugnant to the genius of our laws to allow the prosecution to continue after the statute of limitations had expired.

Such has been the law that only a few times in the history of this Nation has any State had the trepidation to attempt to revive an expired cause of action in a criminal matter.

In each such instance, the States have been... the State has not been permitted to do so.

In each such instance, such as in State v. Sneed, Moore v. State, and other such cases--

Unidentified Justice: Were those State law cases and State constitutional cases?

ROBERTO NAJERA: --They were, Your Honor.

And... however, as I said, in Adams v. Wood, it involved a Federal matter and it involved a matter that we might consider equally repugnant.

It had to do with the prosecution of an individual who was involved in the slave trade and laws that prohibited that.

However, the attempt to punish that occurred after the statute had run, and Mr. Chief Justice Marshall indicated in that particular case that even if the case had been treason, it could not be prosecuted, for under the Federal law, treason was only prosecutable for a 3-year period.

Unidentified Justice: Did he base his decision, the one that you're referring to, on the Ex Post Facto Clause?

ROBERTO NAJERA: No, Your Honor.

He based it on the law that the statute of limitations in that case, the Federal law had in fact called for an expiration of the cause of action, and the Court there decided that, no, it could not be prosecuted.

But no, he did not decide it on the ex post facto basis, Your Honor.

As the Court knows, we raise two issues here, the Ex Post Facto Clause and the Due Process Clause, and I would like to point out that the two clauses, while they both deal with arbitrariness and unfairness, are not coextensive and that similarly, in addressing the matter, neither is petitioner's claim as to each, for under the Ex Post Facto Clause, we are not looking as to whether rights have vested.

Such is not a concern of the Court for ex post facto concerns.

However, in this particular case, Mr. Stogner has been vested with a right.

The State of California has given him a substantive right, a defense that is neither waivable nor forfeitable.

Unidentified Justice: We've said in Graham against Connor that if a provision of the Constitution speaks directly to a subject matter, such as I think the Ex Post Facto Clause does to your case here, then we don't go to substantive due process.

We analyze it just under that provision.

ROBERTO NAJERA: That is correct, Your Honor.

However, as I indicated, the two claims are... are not necessarily coextensive, and I would like to point the Court out to the case of Sacramento v. Lewis.

There, the Court may recall, involved a high-speed chase.

The police were after individuals on a motorcycle.

The motorcycle crashed.

There was in that case no Fourth Amendment claim because no seizure had occurred of the person prior to the crash taking place.

The Court, nevertheless, was able to analyze that case under the substantive due process principles because it fell outside of the Fourth Amendment.

Here we clearly believe that the case falls well within the... the Ex Post Facto Clause.

However, should the Court decide otherwise, it strikes me that it should not render this Court impotent to examine the matter as a substantive due process.

It seems--

JUSTICE SCALIA: That... that would render the rule quite pointless.

I mean, the rule is if it is analyzable under... under a very specific provision of the Constitution and is not valid under that one, you then don't move on to analyze it under another one.

And... but you're saying unless you win under the narrow one, it's not over.

If you lose under the narrow one, you then can go on to the Due Process Clause.

ROBERTO NAJERA: --Well--

JUSTICE SCALIA: That doesn't make it much of a... much of a safeguard, it seems to me.

ROBERTO NAJERA: --Well, Justice Scalia, as I've indicated, the causes are not... are not absolutely coextensive.

We have in this case a vested right.

The State of California has guaranteed to the petitioner the right that he be free from prosecution, the right that he be free from conviction, and the right that he be free from punishment.

This is vested to him under State law.

As such, that can be analyzed, whether or not the Court deems it sufficient, under the Ex Post Facto Clause.

As the Court said in Weaver, we are not concerned under the Ex Post Facto Clause with vested rights.

That's not necessary for analysis under the Ex Post Facto Clause.

It is an additional factor that the Court certainly should and, we urge, must consider under the Due Process Clause.

If I may continue, analyzing the matter first under the Ex Post Facto Clause, I think the first question perhaps that should be addressed is whether or not this is a rule of evidence and whether or not it falls within Calder four.

Clearly this is a rule of evidence as the State of California has defined it.

It is a rule of evidence because it is required of any finder of fact, whether it be a judge sitting pretrial examining the matter as a demurrer or in analyzing the matter as sufficiency of evidence under Penal Code 995.

Unidentified Justice: But it doesn't... it doesn't go to the kind of evidence necessary to prove the substantive offense certainly.

ROBERTO NAJERA: Yes.

I... I would beg to differ, Your Honor.

And the reason is, is California has injected the statute of limitations into every offense in which it applies.

In such cases it becomes a material ingredient of the offense, and in such cases the prosecution is barred if that material ingredient is not proven by the prosecution.

And if the matter should proceed to trial, a jury must acquit if the prosecution is not able to overcome its burden in that particular case.

Unidentified Justice: But that... that simply says there is another substantive element there.

It doesn't say what rule of evidence you follow to decide how that was made out.

ROBERTO NAJERA: It does, Your Honor, in this respect.

If the evidence comes before a jury, for example, and the evidence shows that the prosecution is barred, that no public offense is stated, the jury must acquit.

It is a rule that guides the jurors, as much as it would guide a court, in deciding what must be done with the particular facts.

If the facts before the court show that the case is barred, then the prosecution cannot continue.

The jurors must acquit.

It... it would seem to me to be one of the most clear rules of evidence and applicable throughout, not just to California and not just to the Federal Government--

Unidentified Justice: Suppose you have a... a case in which the statute of limitations has not yet expired, and the legislature then extends it.

And it's during the extended period that the prosecution has brought it.

Is there an ex post facto violation there?

ROBERTO NAJERA: --I believe not, Your Honor, and the reason I believe not is that what is promised by the statute of limitations is not any particular number of years.

Rather, what is promised--

Unidentified Justice: And how does that fit in with the description you just gave of... about the evidence?

ROBERTO NAJERA: --Because the evidence that must be shown by the prosecution is that the case has not been barred.

That does not depend on any particular number of years.

It depends--

Unidentified Justice: Well, but that's the ultimate conclusion they gave.

The case I put to you is either barred or it isn't.

We have to find the answer to that before we know whether there's evidence.

I... I just... I just don't understand your theory.

ROBERTO NAJERA: --The case is barred only when the statute has run.

One can liken it to a conditional promise.

Unidentified Justice: But why isn't any evidence in... in one case or the other in the hypothetical I put?

ROBERTO NAJERA: Because the evidence of... of an extended statute of limitations doesn't go to whether or not the case is barred.

The evidence is still the same.

The case has not yet run.

Unidentified Justice: Except it does if you're... if you're right on your theory.

ROBERTO NAJERA: I am right on my theory because the... the State is in fact barred from proceeding, and the evidence that would come before the--

Unidentified Justice: Let me ask you another question on the ex post facto lawsuit.

Suppose the State has a savings clause and it reserves to itself the right to extend any statute of limitations.

What result there if the State then extends the statute?

ROBERTO NAJERA: --I believe if there is--

Unidentified Justice: And this was... and then this in effect at the time the crime was committed, this general power in the State to extend.

ROBERTO NAJERA: --I believe if the State has reserved the right to extend a statute of limitations before the statute has expired, then there is no ex post facto problem.

I believe that the problem occurs--

Unidentified Justice: Well, then you're not arguing for very much here.

The... the States... all the States can just pass this statute and... and that's the end of this case.

ROBERTO NAJERA: --Well, it's not the end of this particular case because the statute has, in fact, run.

Certainly a State is permitted to set statute of limitations, decide the terms and conditions thereof, and go forward in the future under such a premise.

In this--

Unidentified Justice: What... what if a State says we reserve the right to dispense with any of the elements of... of crime that are on our books?

I mean, it announces that.

We reserve the right in the future to dispense with... retroactively with any of the elements of the crimes that we have defined in our... in our code.

You wouldn't say that's okay, would you?

ROBERTO NAJERA: --No, I would not, Your Honor.

Unidentified Justice: Why is this any different?

I... I don't know.

If it violates the Ex Post Facto Clause, I can't see how the State can get around it by announcing in advance that it's going to... to violate the Ex Post Facto Clause.

How does that make it okay?

ROBERTO NAJERA: Because the Ex Post Facto Clause violation only occurs when the offense is deemed no more, and that only occurs when it runs.

So if the case hasn't run yet... or the statute has not run yet, we are in a completely different posture.

No... in California--

Unidentified Justice: But it has run.

The State announces it in advance.

Then the statute runs, and the State says, hey, we told you.

We told you beforehand that even after the statutes run, we're going to be able to get you.

And I thought you said that's okay.

ROBERTO NAJERA: --It's okay in the statute of limitations context because there they have reserved that situation that allows them to say the public offense still continues in this particular situation.

What we have here is an absolute rule that says once run, not only can no punishment be had, not only can no conviction be had, but not even a prosecution can be maintained.

There is no offense once the statute has run.

JUSTICE GINSBURG: But you're saying a State could have no statutes of limitations.

ROBERTO NAJERA: Yes, and... and the States have clearly done that in certain instances such as in the case of murder.

There is no statute of limitations in... in such a particular case.

JUSTICE GINSBURG: And you have no trouble with prospective application of either saying we're not going to have any statute of limitations for this crime or prospectively the time is going to be longer.

You're only talking about the retrospective.

ROBERTO NAJERA: That is correct, Your Honor.

It is in its retrospective aspect that we run into problems because the State has clearly said there is no offense anymore.

It is gone.

It is dead.

It has been terminated.

JUSTICE GINSBURG: And for the... the... you were being asked before about the difference between extending a limitation that has not yet expired and reviving a dead case, and for that there's... there was a very nice statement of the difference between the two by Judge Learned Hand.

I thought in response to Justice Kennedy's question, you would come back with that.

ROBERTO NAJERA: That is correct, Your Honor.

It is clear as... as His Honor Judge Learned Hand, that we're not offended in the same manner before the crime has expired when we extend the matter--

Unidentified Justice: That... that was the footnote in the Falter case?

ROBERTO NAJERA: --That is correct, Your Honor.

Unidentified Justice: Footnote 26 or something?

Now, that has never been approved by this Court.

Have... have various circuit courts approved of that?

ROBERTO NAJERA: Various circuit courts have... as I recall, have spoken of it.

Some have objected to such language recently such as the... the Brechtel case.

But every State court that has looked at the matter, not just in California, has said you cannot maintain such an action once it has expired.

That's clearly been the law throughout.

And it... it is important to note that this type of precedent, this history has been throughout the... the history of the United States.

We have cases extending early on, State v. Sneed, a case that was cited, I might note, in the Kring opinion that was overruled by this Court.

But nevertheless, it was cited there for the proposition that... that a statute of limitations, once run, did in fact cause ex post facto violations.

JUSTICE GINSBURG: Well, whatever the Federal stopper, I... I gather that this Court must have assumed there's such a distinction when it was dealing with Fifth Amendment claims and it said, once the statute of limitations has expired, you can't plead the Fifth.

ROBERTO NAJERA: That's absolutely correct, Your Honor.

And State opinions are, of course, in accord.

And it is striking to note that as late as 1993 in a case in California called Blackburn, an accused in a civil matter attempted to rely on the Fifth Amendment in order to avoid questions concerning child molestation.

And the court there said, well, you haven't made a sufficient showing, and the reason being?

Because the statute of limitations essentially replaces the Fifth Amendment.

And I would note in that regard, in California in particular, that the statute of limitations has been viewed as such a powerful matter that it's been likened not only to the Fifth Amendment, but it has been likened to the Fourth Amendment in that it prevents unlawful seizures of a person.

It has been likened to the Double Jeopardy Clause in that one cannot prosecute a person again once the statute of limitations has run.

And so this statute of limitations is not a matter of minimal import.

Unidentified Justice: Well, the California Supreme Court, in announcing under State law, didn't give it that fundamental sweep at all.

ROBERTO NAJERA: It... it had--

Unidentified Justice: We're bound by what... how California characterizes its own statute I assume.

ROBERTO NAJERA: --To some extent, yes, and to some extent, no, because in ex post facto analysis, it is this Court that looks at State law and it's this Court that makes a determination whether or not it violates ex post facto regardless of what label a State may give it in particular.

That principle was announced in... in Lindsey, and it certainly was reaffirmed in... in Carmell.

Unidentified Justice: But we... we have to... we have to take the State law as we... as we find it.

I mean, if the Supreme Court of California says a law meant one thing, we don't come in and say it meant another.

We can say you've changed the law and therefore it's ex post facto, but we don't decide for ourselves over the... overruling a State court what that particular law said at a particular time.

ROBERTO NAJERA: Well, the Court looks at... at the substance of the matter I believe.

The Court looks at whether or not the law violates the Ex Post Facto Clause, and it would seem to me that simply changing labels would be an easy way for a State to get around the Ex Post Facto Clause.

As the Court said, as early as Cummings, it's a matter of substance, not a matter of form.

And California, throughout its history, up until Frazer granted, had always considered statute of limitations to be matters of substance.

They were not simply remedial matters or not simply procedural matters.

They were matters of substance and they were matters of rights for the defendant or the person accused.

JUSTICE O'CONNOR: Your... your claim doesn't fit very comfortably under any of the four Calder v. Bull factors, or categories I should say, of ex post facto violations.

You're trying to shoehorn it under the rule of evidence category, number four?

ROBERTO NAJERA: Whether... Your Honor, whether comfortable or not, I believe it fits, and I believe that it fits within each of the four categories, not only because of the nature of the Ex Post Facto Clause, but because of the multifaceted nature of the statute of limitations at issue here.

For example, if we look at Calder category three, which deals with punishments and the laws that are annexed to the punishment, in the case of Lynce, which I believe was authored by Your Honor, in that case what was at stake was not what the State had defined as the punishment per se, the number of years.

What was at stake there was that the State itself had granted credits, overcrowding credits.

They did not even intend to... to give a benefit to the defendant there.

And yet it fell within Calder three because the punishment had been reduced by laws that were annexed to the crime, the laws dealing with the overcrowding.

And in that way, one can say if the Court rejects the principle that this is a material ingredient of the offense itself, as California has defined it, certainly as a matter of punishment, it is a law that's annexed to that punishment and says, after a certain period of time, no punishment shall be had.

And that's quite clear under California law because it is not a waivable right.

In other words, a person can go ahead and proceed to trial or go ahead and plead guilty and be languishing in prison and suffering the punishment and years later discover that he has a statute of limitation right and assert it then and punishment shall be had no more.

He must be released.

And so in that way I do believe it fits within Calder category--

Unidentified Justice: That... that's the law in California, what you just said, that even though you never raise it as a... as an issue in your trial, and you're in... you're in prison, many years you could then come in and under California law if it... if the statute had run, you would be released?

ROBERTO NAJERA: --That is correct, Your Honor.

That... that has been held over and over in California since its early days and reaffirmed in particular in the McGee case which was seminal in California and which defined it not just merely as a matter of defense, not just merely as a... as a right of the defendant, but also as a matter of jurisdiction for the court.

And in that case, they made it very clear that since no offense could be stated, no jurisdiction could be had by the court.

Unidentified Justice: Then... then what was the effect of the Frazer case?

ROBERTO NAJERA: Well, the Frazer case certainly tried to redefine the history, I believe, of... of the California law.

And I might note, of course, that it dealt with a subsequent statute of limitations enacted well after the statute of limitations applicable to petitioner in this case and reinforced by 805.5 in 1985.

Unidentified Justice: So did the Frazer case overrule some of this California doctrine on statute of limitations that you've just told us about?

ROBERTO NAJERA: It certainly overruled cases such as Sobiek which had held that, in fact, this was a violation of the Ex Post Facto Clause.

While calling it a matter of legislative grace, they did not touch cases such as Zamora which occurred in 1976, the same year that the statute of limitations would have expired here, that reaffirmed that this was in fact a substantive right.

And I might note that even while using the language legislative grace, this Court in Weaver said even if good-time credits are given as a matter of legislative grace, it does not bar application of ex post facto, and so such credits cannot be taken away, even though they had not, in that particular case, been earned.

Unidentified Justice: Mr. Najera, could... could you explain to me... I... I understand your argument that this falls within the fourth category of Calder because you have to produce more evidence under the... or I'm sorry... less evidence.

It alters the amount of evidence necessary for conviction.

Before the statute, you... you had to show that the crime was committed by an earlier date and after this, you don't have to show it was committed by that earlier date.

But if that's the case, what I don't understand is why it makes any difference whether this increase... or decrease in the amount of evidence necessary to convict occurs before or after the old statute of limitations has run.

In either event, it... it amounts to a decrease in the amount of evidence necessary to convict.

ROBERTO NAJERA: Well, there's certainly an argument that can be made, and... and I know that amicus has... has in a footnote addressed that.

My... my belief is that what must be shown is not a particular number of years per se, because that can be altered I believe.

What must be shown by the evidence before the... before a court is that because the number of years requisite of the statute of limitation has in fact passed, therefore the case is no more.

So, yes, one does consider the number of years, but the number of years only matter as to whether or not the statute has, in fact, run in that particular case.

Unidentified Justice: Well, I hear you but I... I don't... I don't really--

--I suppose you could also say that even though literally it would apply to both situations, there's a longstanding tradition of not applying it in the case where the statute has not run, and so you would construe that exception rather narrowly.

ROBERTO NAJERA: That is correct.

The State of California throughout has told all of its citizens you no longer need to keep your guard up because the statute has run.

If you have evidence, you don't have to preserve it.

If you have letters that might be of some support in your case, you don't have to maintain them.

If you have witnesses, you no longer need to know where they are or... or how to get a hold of them.

And that only--

Unidentified Justice: Am I correct... just so I get your view on it... am I correct that with respect to an unexpired statute of limitations where there's an attempt by the legislature to extend it, the law is really very well settled that that's permissible?

ROBERTO NAJERA: --Yes, and in particular in California because in the same year that the Sobiek case was decided, in which the court said it is a violation of ex post facto to revive an expired cause of action, in that same year they decided People v. Snipe, which was an extension case.

The statute had not yet run, and the court there had no problem saying there is no ex post facto problem there.

If... if I might continue, and I would like to attempt to address all... all the relevant categories.

Turning to category number two, for example, there we deal with a situation in which a crime is aggravated or enlarged and the opposition says, well, this only deals with punishment.

Well, in one respect all Calder categories deal with... ultimately with punishment.

Nevertheless, it is a situation that is simply not redundant to the other categories.

It is a category unto itself.

And... and even though there does not appear to be a great deal of case law on the point, one must still ask the question, when is a... when is a case aggravated in a fashion that doesn't merely mirror one of the other Calder categories, and I believe it's when the jurisdiction is increased, when persons who fall outside of the statute become ensnared in it.

And if I might, unless there is an additional question, at this point I would like to reserve the remaining time.

CHIEF JUSTICE REHNQUIST: Very well, Mr. Najera.

Ms. Gaard, we'll hear from you.

ORAL ARGUMENT OF JANET GAARD ON BEHALF OF THE RESPONDENT

JANET GAARD: Mr. Chief Justice, and may it please the Court.

Based on new evidence that children who have been sexually abused often delay reporting the crimes for substantial periods of time, the California legislature extended the statute of limitations for the most serious of these offenses and it expressly made the law retroactive.

This law does not violate the Ex Post Facto Clause or the Due Process Clause.

Turning first to ex post facto, this law does not criminalize conduct that was innocent when it was done.

JUSTICE STEVENS: Before you go through the four categories, might I just ask this general question?

What if the defendant had been pardoned, would it be an... an ex post facto violation to... for the legislature to say we're going to now make it subject to prosecution?

JANET GAARD: No, Your Honor, it would not violate the Ex Post Facto Clause.

JUSTICE STEVENS: And why not?

JANET GAARD: Because what we're looking at with those four categories is what the law was in effect at the time the crime was committed, whether or not it was an innocent act that was later criminalized.

A pardon has no effect on the... whether or not the act was innocent at the time it was committed.

So I would say that is like an ex... a statute of limitations, that there would not be a change in the ex post facto.

JUSTICE STEVENS: I'm sorry.

I really didn't understand.

You say that the pardon would be treated differently than the statute of limitations.

JANET GAARD: No.

It would be treated the same for ex post facto purposes.

JUSTICE STEVENS: Oh, it would be treated the same.

JANET GAARD: Yes.

JUSTICE STEVENS: And what about a general amnesty for, say, illegal aliens coming into the country and then Congress passes a statute saying we will forgive the crime and you cannot be prosecuted?

The same analysis there too?

JANET GAARD: With an amnesty, I don't... I believe it would be the same with the ex post facto.

There may be some separation of powers issues.

There may be double jeopardy issues, and there may be due process issues.

I suppose it would depend on the circumstances.

JUSTICE STEVENS: Well, why would those issues be different in that situation than in this situation?

JANET GAARD: I believe that they actually would be very similar, but it would depend.

I think sometimes amnesties are conditional or some--

JUSTICE STEVENS: No.

Unconditional in my hypothesis.

JANET GAARD: --An unconditional?

JUSTICE STEVENS: Just like a pardon but a legislative decision.

JANET GAARD: Then what you would look to would be due process there, which you also can look to with an ex post facto change.

JUSTICE STEVENS: Then why can't we look to due process in this case?

JANET GAARD: I don't think that you look to substantive due process.

I believe that what was expressed earlier is when we have an explicit textual source of protection, which we have here, you don't look to substantive due process.

The protection comes by way of procedural due process.

JUSTICE GINSBURG: But that would be the same for the pardon and the amnesty.

JANET GAARD: Yes, I believe it would be, Your Honor.

JUSTICE GINSBURG: And another preliminary question.

You started out by saying these are very troublesome kinds of cases.

But the argument that you're making, I take it, is across the board.

JANET GAARD: Yes.

JUSTICE GINSBURG: Doesn't... it could be... it could be pickpocketing and... and the argument would be the same.

JANET GAARD: Without violating the Ex Post Facto Clause--

JUSTICE GINSBURG: Yes.

JANET GAARD: --yes.

And the Ex Post Facto Clause has been interpreted in terms of the four Calder categories.

What I'd like to do is... is focus primarily on categories one and four which this Court has said are mirror images of each other.

The first category prevents the State from making an act that was innocent when it was committed criminal at a later time.

It provides fair warning so that citizens are able to assess whether or not to engage in certain conduct.

And it's related to guilt or innocence.

The statute of limitations has no relation to guilt or innocence.

It's a defense that's raised that says whether or not the defendant committed the crime, the State is not going to be able to prosecute.

And when you look at whether or not the crime existed, what you look at is the definition of the crime as set forth by the elements.

And I would refer the Court to the Frazer opinion, footnote 22, where the California Supreme Court has said, whatever its nature for various State law purposes, the statute of limitations is not an element of the offense insofar as the definition of criminal conduct occur.

The California Supreme Court has said that the crime that's at issue in this case is set forth in Penal Code section 288, and the statute of limitations has no relation to that.

Interplaying with the category one is category four.

JUSTICE SOUTER: May I ask you before you get to four?

May I ask you just to spend a... a moment on something that... that hasn't been the focus of much?

And that is category two that... that refers to ex post facto as something that makes greater or more serious a... a crime that was previously defined.

It seems to me that there are two sort of indexes of seriousness in a crime.

One is the... the penalty in the strict sense that is... is provided for it, but another index seems to me, the period of time after its commission that a person who committed it is liable to be prosecuted.

That is a judgment about seriousness.

And that judgment is being changed here.

Why doesn't it offend the second category?

JANET GAARD: I believe when you're talking about increasing the punishment, what... what the... the cases have looked at is the punishment that exists at the time of the crime.

And it really is the actual punishment whether or not the term of a punishment is 1 year or it's 20 years, and I don't think that there's authority--

JUSTICE SOUTER: But... but that isn't exactly the term that at least that... that Calder used.

I mean, it... it... Calder states... I'm... I'm looking at the quotation on page... page 6 of the... 8, rather, of the... the Government's brief.

It... it refers to every law that aggravates a crime or makes it greater than it was when committed.

And it seems to me that the... that the aggravation greater concept isn't necessarily limited to the index of punishment, and it... it could refer to the... to the index of seriousness that... that exists in the period of liability to prosecution.

JANET GAARD: --The second Calder category, if we look back at the historical basis for that, comes from the creation of a new punishment that wasn't in effect at the time.

Unidentified Justice: Well, that just replicates the third.

Yes.

That makes it totally redundant.

JANET GAARD: Well, I... I don't think so because the second one was, for example, where the new punishment that was imposed was banishment which didn't exist at the time as a penalty for the prescribed crime.

The third one is the increase in the punishment.

But creating a new punishment, I don't think that holding a defendant liable for a longer period of time is the type of punishment that this Court has looked at when it has applied those cases.

What we're looking at is the purposes of the Ex Post Facto Clause, which is to provide fair warning so that he knows whether or not he should commit the crime.

JUSTICE BREYER: Well, the same... that's here.

Isn't that here?

JANET GAARD: Excuse me?

JUSTICE BREYER: I mean, isn't that present here, at least in respect to the evidence?

I mean, a person as... as... for example, this particular defendant you would like to prosecute, among other things, for crimes that were committed in your view 43 years before the present... before the time of indictment and 22 years anyway since the statute of limitations expired.

It's quite possible that during that time people would have thought that they didn't have to keep records, that they didn't have to keep all the evidence, that they might not have to defend themselves.

And of course, there's something to be said on the other side, but also memories can be revived through hypnosis.

Is this such a case?

JANET GAARD: This is not such a case, and in fact, the California--

JUSTICE BREYER: Yes, all right.

So... so then I... but... but there... they could be, and sometimes those are inaccurate.

So people feel that they are free not to keep the evidence after 22 years.

Now--

JANET GAARD: --If you're--

JUSTICE BREYER: --what I'm... I'm trying to trigger your reaction as to some of these fairly obvious points as to--

JANET GAARD: --I guess you have... you have touched on a couple of things.

First is repose and second is potential for prejudice.

And the potential for prejudice exists because of the passage of time, not necessarily because of the retroactive change.

So the fact that the evidence may be somewhat stale is a function of the mere passage of time, and as the Court is aware, there... the State could impose no statute of limitations so we could have a case that was 40 years out and that would be the same issue.

But in terms of--

JUSTICE BREYER: --But the point... the point, of course, is that... that in Calder v. Bull, the Justice says, all these and similar laws are manifestly unjust and oppressive.

And some of the purposes here, particularly the ones on evidence and so forth, seem to be about the kinds of things you're talking about.

JANET GAARD: --The Court has said, and similar, but this Court has repeatedly held, most recently in Carmell in 2000, that the four Calder categories are the outside parameters, and that a law, to be ex post facto, needs to fall within one-fourth of... one of those four.

And in terms of the prejudice, there is protection--

JUSTICE GINSBURG: But the Calder category in... in Carmell, the opinion of the Court said that category covers instances where the Government refuses after the fact to play by its own rules, altering them in a way that is advantageous only to the State to facilitate an easier conviction.

If that was the Court's most recent description of the fourth category, this case would seem to fit in it.

JANET GAARD: --But I believe what the Court said there was that what was impermissible or unfair was undermining a presumption of... of innocence, and that's not relative when you have a statute of limitations.

Innocence is of no import.

So what the Court said was in Calder category one, you cannot change the elements of the crime retroactively, and in Calder category four, it said you can't change what the prosecution has to prove with respect to those four... or those elements.

So you can't change the presumption of innocence, which the Court spoke to in the Cummings case, and you can't lower the sufficiency of the evidence required to prove the elements of the crime, which is what the Court was saying in Calder.

And in fact, if you find that changing this would... would implicate the fourth Calder category, then you may want to look at Gut v. Minnesota where the Court held that a change in a venue did not implicate any of the four Calder categories.

And if you were to change venue, that would also change the fourth Calder category which this would.

And also--

JUSTICE SOUTER: May... may I ask you this... this question?

Obviously, the... you know, the... we're engaged in kind of a definition of what the categories mean, as well as an analysis of what you have.

Would you agree that if we do not fit this case within one of the Calder categories, that... and... and we accept your position, that we will have to overrule Hale and... and Henkel, the... the case holding that... that in fact, the... the Fifth Amendment cannot be pleaded once the... once the statute has expired?

JANET GAARD: --No.

I think what that would be is so long as the statute of limitations has expired and not been revived, that there is no present threat of prosecution--

JUSTICE SOUTER: Oh, in other words, the... one could be required to present evidence against himself and then the next morning the State could say, hey, we've had a great idea.

We're going to extend the statute of eliminations... the statute of limitations and prosecute you for what you just admitted to under the authority of Hale and Henkel.

Is... is that your position?

JANET GAARD: --Yes, but I think that you would have to suppress that statement because it would be unfair.

That would be an act of misleading by the State to say you would have to... to testify and then we're going to use it against you.

So as we said, we don't believe this fits within the... one of the four Calder categories, but the protections come by way of... or the procedural component of the Due Process Clause, that if in fact there has been actual prejudice, the... the defendant may raise that as he may in any instance where there is a pretrial delay, and then the court will weigh that versus the reasons for the delay, which is the test that this Court--

JUSTICE SOUTER: Would... would that... and I... and I think this is your position.

That would equally be true if the statute is extended before it has expired.

JANET GAARD: --Yes, it would be.

Whenever there's pretrial delay, you use the test that the Court enunciated in Marion and reiterated in Lovasco, and that's where we believe the protections come here.

This case is before the Court on a demurrer.

There has been no allegation by the defendant that he's been prejudiced in any way in his ability to present a defense.

JUSTICE BREYER: But your strongest argument against Justice Souter's initial point, which I thought was... that the word aggravated... every law that aggravates a crime, treating that as a kind of catchall where, in fact, it isn't literally within the other three, but from the point of view of purposes, it's the same.

The argument against treating that aggravating a crime as a kind of catchall is?

JANET GAARD: I don't think that that was the intent at the time that this was--

JUSTICE BREYER: And the evidence that it wasn't the intent?

JANET GAARD: --If we look at the historical basis for this, it was the creation of a--

JUSTICE BREYER: It... it was the banishment matter.

JANET GAARD: --It was the creation--

JUSTICE BREYER: But you could treat the banishment that they were referring... that one thing or that they were treating it as a catchall.

JANET GAARD: --Yes.

It was the creation of a new punishment.

I don't think they had... that it was meant to be a catchall, and this Court has never interpreted it to be a catchall.

JUSTICE BREYER: One way or the other, or has it said it isn't?

JANET GAARD: It has not said it is not, as far as I'm aware.

JUSTICE BREYER: Thank you.

JANET GAARD: And I think that Justice Kennedy mentioned about the extensions, and one of the things that you need to look at is when you're... you're deciding whether or not an extension of the statute of limitations that isn't applied retroactively violates the Ex Post Facto Clause, we look to a defense that existed at the time the act was committed.

And if he had a 3-year statute of limitations at the time the act was committed, you would be changing the evidence, if you followed his theory, from 3 years to an extended period, whether or not it was an extension or a revival.

So we don't think that that would work, and this Court would actually have to overrule a long line of cases saying that extensions are also permissible.

And the... the Federal district... or courts of appeals, several of them have spoken about the fact that the statute of limitations is not the type of element that we're looking for to determine whether or not there has been a change in the--

Unidentified Justice: My other case... I don't know... quite know how the statute of limitations works in the criminal area.

In the civil area, you can very easily waive the statute of limitations if you don't plead it at the right time or if you make a counterclaim based on the same facts, et cetera.

In... in the criminal system, are statute of limitations routinely held waived?

JANET GAARD: --In this--

Unidentified Justice: Or... or on the other hand, after the fact and a prisoner could say I forgot there's a statute of limitations here and... and bring collateral attack?

JANET GAARD: --May I answer?

CHIEF JUSTICE REHNQUIST: Yes, briefly.

JANET GAARD: In California, the defendant has the right to a pretrial hearing on the statute of limitations, and if the court finds that the statute of limitations' exceptions have not been met, the defendant gets a dismissal.

If it goes to trial, the court makes a determination... or the jury makes a determination.

They first find guilt or not guilt, and then they make findings by a preponderance of the evidence--

CHIEF JUSTICE REHNQUIST: Thank you, Ms. Gaard.

We'll hear now from Mr. Gornstein.

ORAL ARGUMENT OF IRVING L. GORNSTEIN ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE SUPPORTING THE RESPONDENT

IRVING L GORNSTEIN: Mr. Chief Justice, and may it please the Court.

California's statute of limitations does not violate the Ex Post Facto Clause because it does not violate any of the four Calder categories.

JUSTICE STEVENS: Mr. Gornstein, may I interrupt you to ask the same question I did of your co-counsel?

Do you agree that the rule in this case will apply to pardons and general amnesties as well?

IRVING L GORNSTEIN: Insofar as we're talking about the Ex Post Facto Clause, correct, yes.

JUSTICE STEVENS: What other clause might apply other than--

IRVING L GORNSTEIN: Well, the... the legislature could not undo a... an executive pardon--

JUSTICE STEVENS: --Why not?

IRVING L GORNSTEIN: --under this Court's decisions.

Under the Pardon Clause, it has finality that the legislature can't undo it.

I think the case is Ex parte Garland.

JUSTICE STEVENS: What... what provision of the Constitution prevents the legislature from authorizing the... the prosecution of someone who has been pardoned?

IRVING L GORNSTEIN: The provision of the Constitution that grants the President the power to pardon.

JUSTICE BREYER: The legislative amnesty.

JUSTICE STEVENS: And... and what's the difference with an amnesty too?

Legislative amnesty.

IRVING L GORNSTEIN: Can I... let me... let me do the pardon first.

JUSTICE STEVENS: Sure.

IRVING L GORNSTEIN: And then I'll move to the amnesty.

With respect to a presidential pardon, it is final with respect to the legislature by virtue of the Pardon Clause.

The Pardon Clause gives the President the power to issue a final pardon that the... the legislature can't undo.

JUSTICE STEVENS: Does the word final appear in the Pardon Clause?

Does the word final--

IRVING L GORNSTEIN: It is not, but that's how the Court interpreted the Pardon Clause in, I think it's Ex parte Garland, but I'm not sure of the decision.

Unidentified Justice: --And what's the... what's the answer with respect to a State pardon?

IRVING L GORNSTEIN: There would be a State constitutional provision usually analogous to that.

Unidentified Justice: Well, but I mean, I--

IRVING L GORNSTEIN: There would not be a Federal--

JUSTICE SOUTER: --Let's... let's assume the State says no.

Then... then there's no problem here.

IRVING L GORNSTEIN: --If the State... if the State says no, then the only question that would arise in a pardon is if you start to analogize it to a agreement situation like Santobello because in some pardon situations, it's like an offer and it has to be accepted.

You can't just force a pardon on somebody.

And if there's an offer and an acceptance, you could potentially analogize it under the due process principle of Santobello where the government can't withdraw from an agreement without implicating the Due Process Clause.

With respect to an amnesty, there would not be, again, an Ex Post Facto Clause violation, and there would not be a... any other sort of due process violation, again, once again, unless it fell into the Santobello kind of situation or the Raley kind of situation where the Government offers something, it's accepted, and then it--

JUSTICE STEVENS: You... you assert there would be no ex post facto violation, but why is it different from the... from a statute of limitations running?

IRVING L GORNSTEIN: --There's no... there's no Ex Post Facto Clause violation with a statute of limitations running either.

That's our position because it does not violate--

JUSTICE STEVENS: You say you could... you could indict someone after granting them amnesty.

I misunderstood you.

IRVING L GORNSTEIN: --Yes, yes.

Now, with--

JUSTICE GINSBURG: What is your position on... on Hale against Henkel and Brown against Walker?

The Fifth Amendment.

Can... can the State say the statute of limitations has expired, therefore you have to speak, and then revive the time in which the prosecution can be brought?

IRVING L GORNSTEIN: --The premise of that decision is that you cannot assert the Fifth Amendment when there's no present threat of prosecution, and there is no present threat of prosecution when there's an expired limitations period.

But if the person speaks under compulsion in that situation, and a statute of limitations is subsequently retroactively amended, the Government could not use the testimony that was secured through compulsion.

JUSTICE BREYER: So what is your... I mean, starting your basic argument... I look back.

I see Learned Hand says that after the period is run, it is unfair and dishonest to prosecute a person.

It violates the Ex Post Facto Clause.

After the Civil War, Roscoe Conkling, a Hawk I think, said when they wanted to revive treason against Jefferson Davis, he said that the offense is dead if the statute has run.

It would be ex post facto.

Hornbook law like American Jurisprudence until recently said absolutely contrary to the Constitution.

So what's changed?

Or are... in... in the Government's view, were all those people... they weren't supreme courts, I agree.

But it seemed to be accepted.

So has something changed or were they all wrong or what's the view?

IRVING L GORNSTEIN: The... in this Court's decision in Collins, it recognized there had been some disagreement about the scope of the Ex Post Facto Clause in prior cases, and with some courts saying that it goes beyond the four categories to capture laws that operate to the disadvantage of the defendant in some important way and with other courts saying it's limited to the Calder categories.

In Collins, the Court resolved that debate and said that the Ex Post Facto Clause is limited to the four Calder categories.

There is not a fifth category of things that operate unfairly to the disadvantage of the defendant.

Now, that was the analysis that Judge Hand used in the opinion that you refer to.

He did not say that this violates any of the four categories.

He essentially said this operates to the disadvantage of the defendant in an unfair way, a line of analysis that this Court ruled out in Collins and reaffirmed ruling it out in Carmell.

The same thing is true of the State court decision that Judge Hand referred to in the first in the line of those decisions, Hart v. Moore.

It frankly acknowledged that this law, changing an expired limitations period, does not violate any of the four Calder categories.

It said, though, we are going to go with the spirit that underlies the Ex Post Facto Clause.

Well, again, this Court's decision in Collins absolutely rules out that line of analysis.

In order to find an Ex Post Facto Clause violation, you must find that it violates one of the specific Calder categories.

JUSTICE BREYER: I didn't think that Hand or American Jurisprudence or the cases or Roscoe Conkling or the civil or any of these things said one thing one way or the other about whether it fell within the categories.

I'm not sure I'm right on that, which is why I'm raising it.

And... and if I... if I... but if I am right, can you use the second category, anything that aggravates a crime?

It seems to aggravate a crime to say that this crime would have been prosecuted for 3 years and then we change it retroactively and say it could be prosecuted for 50 years.

I mean, that seems to aggravate the... so what is your response to those--

IRVING L GORNSTEIN: On the--

JUSTICE BREYER: --Am I right in thinking they were silent?

IRVING L GORNSTEIN: --No.

JUSTICE BREYER: And two... no.

IRVING L GORNSTEIN: In Hart v. Moore, which is the key precedent that Judge Hand referred to, it's just an 1880 case, the... the Court said that it doesn't violate the four Calder categories.

And so it... it relied on the spirit underlying the clause.

In the case of Judge Hand, he didn't undertake an analysis under the four categories, but he undertook the kind of a catchall fifth category analysis that some of this Court's cases suggested was possible at the time, but that the Collins case said is not.

Now, with respect to the question of category two, category two, this Court explained in the Carmell decision, is traced to Wooddeson's discussion.

Wooddeson said that there are two kinds of laws that affect punishment.

One of them creates new punishments, another one increases the severity of the punishment.

And what the Court said in Carmell is that Justice Chase precisely adapted those concepts into his category.

Category two is changing... creating a punishment.

Category three is increasing the severity of the punishment.

And that is the limit of what those two categories involve, and neither of those are implicated in this case because the punishment is exactly the same in form and amount as that which was prescribed at the time of the offense.

JUSTICE GINSBURG: It is odd, Mr. Gornstein, isn't it, that we take as gospel something that was said en passant in... what year was Calder against Bull?

Very early on.

And the case in fact decided it wasn't an ex post facto law.

So this was dictum en passant, and it didn't dispose of the case one way or another.

IRVING L GORNSTEIN: But... but the situation is not that the... it is stare decisis from that case.

It is stare decisis from subsequent cases like Collins and others which have concluded that Justice Chase accurately determined the limits of the Ex Post Facto Clause based on the historical evidence of what the Framers thought, including Wooddeson and Blackstone and... and State constitutions, and the Framers and other sources that he relied on.

He was right.

He got it right, and subsequent decisions of the Court have held that, including Collins.

Unidentified Justice: What--

JUSTICE GINSBURG: --Which Collins also said something... the recitation in Collins included, nor deprive one charged of... with crime of any defense.

It used the word any defense available according to the law at the time the act was committed.

IRVING L GORNSTEIN: No.

In... in Collins, what the Court said is that... that prior cases had used that formulation of any defense and in particular Beazell.

And what Collins did was to clarify that the only defenses that are available are those that go to excuse or justification at the time the offense is committed.

And it merges it then with the first category which deals with changing laws and criminalizing conduct that was innocent when done.

The defenses that... that are prohibited that you can't change under the Ex Post Facto Clause are those that have the effect of criminalizing conduct that would have been innocent when it was done.

I want to move to the fourth category where some of the questions have been, and it's critical to understand the fourth category is closely connected to the first category.

It... it changes what evidence is sufficient to show that the defendant's conduct was a crime at the time he acted, and a statute of limitations does not operate in that way.

It changes what evidence is sufficient to show that there has been a timely prosecution, but it has no effect whatsoever on what evidence is sufficient to show that the defendant's conduct was a crime at the time he acted.

JUSTICE BREYER: So suppose on that particular point, the State had a law that said that oral evidence can no longer be used for conviction after 10 years passes.

And then it later changed the law to say it can be.

Would that fall under the fourth category?

IRVING L GORNSTEIN: It... it would, Justice Breyer, if you said no evidence is sufficient to sustain a conviction unless it meets certain specifications because that's going to the crime.

You can't prove up the crime that way.

JUSTICE BREYER: So you just... what you'd say is you'd say no oral evidence of child abuse can be admitted after 10 years, though you can use other forms of evidence.

IRVING L GORNSTEIN: No.

Admissibility is a different question, Justice Breyer.

Unidentified Justice: So... so it wouldn't apply at all here.

IRVING L GORNSTEIN: It wouldn't apply to admissibility.

Under... Carmell draw... drew a distinction between admissibility and sufficiency of the evidence rules.

Changes in admissibility rules are permissible.

Changes in sufficiency of the evidence rules are not.

Now, explaining further why the fourth category needs to be read in this way, there are several reasons.

The first is that's the way the Court has applied the fourth category.

In situations where there's been a change in what evidence is sufficient to prove the first... to prove the defendant committed a crime, it found a violation, as in Carmell and as in Cummings.

But where the change was... there was a change in what was sufficient to establish some other precondition that doesn't go back to whether the defendant acted criminally at the beginning, the Court hasn't found a violation.

And... and the example is Gut v. Minnesota where there was a change in the venue rule.

What was changed there... change was... was sufficient to prove venue, which was a precondition to guilt, but it didn't change what was sufficient to prove that the defendant acted in a criminal manner when he acted.

And the Court said that there was no fourth category violation.

Also, the statutes of limitations for over 100 years... all the courts have concluded that if you retroactively amend an expired limit... I'm sorry... an unexpired limitations period, there's no Ex Post Facto Clause violation, and in terms of the Calder category four, there's absolutely no difference between those statutes and this one.

In both cases, it changes what's sufficient to show that there is a timely prosecution.

In neither case does it change what's sufficient to show that the defendant committed... when he acted, he committed a crime.

And that is what category four is about.

Finally, in Carmell, this Court noted that category four is a mirror image of category one, and it said they both work together to prevent subversions of the presumption of innocence.

And that description of category four supports the conclusion of the linkage between four and one that the... what you're talking about are rules that change what evidence is sufficient to show that the defendant's conduct was a crime when he acted.

And that's not... and the statute of limitations here doesn't do that.

It changes what's sufficient to show that there's been a timely prosecution.

It doesn't change in any way what's sufficient to show that the defendant committed a crime when he acted.

If the Court has no further questions--

JUSTICE STEVENS: I have one question.

Other than the reference to the language in the four categories, is there any precedent of this Court supporting the Government's position?

IRVING L GORNSTEIN: --The... the only precedent... and it's mild precedent... is the Stewart v. Kahn decision where the Court was examining a retroactive tolling period during the Civil War, and the Court... the issue actually before the Court was the civil component of that.

But in the course of discussing that, Justice Stevens, the Court mentioned that the criminal component of it was also retroactive and... and it applied to expired limitations period.

And in a paragraph that applied to both civil and criminal, the Court said there's no constitutional problem with that.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Gornstein.

Mr. Najera, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF ROBERTO NAJERA ON BEHALF OF THE PETITIONER

ROBERTO NAJERA: Thank you, Your Honor.

I'd like to, first of all, answer one question.

It's clear by California law that post-conviction, a person can raise, either by habeas or other appellate relief, the statute of limitations claim.

That's been clear since Ex parte Vice and was reaffirmed in the McGee case.

Turning to the Collins question, the real import in Collins was not to get caught up in distinctions or labels such as substantive versus procedure, and it would seem that if we began to draw such distinctions here, we run ultimately into the same problems.

And it would seem to me that if Collins stands for the proposition that affirmative defenses, defenses which the defendant has the burden of establishing, are protected, why are not defenses that the district attorney must disprove such as the statute of limitations?

For this has always been, in California, the burden upon the prosecution to show that the statute has in fact not run.

Also, it seems that the State wishes to shift the burden and foist it upon the petitioner and says, well, we can address this in procedural due process, while in fact that, as I said, foists the burden onto the petitioner when the burden in fact lies with the prosecution.

And in the Marion case, Supreme Court case, the Court reaffirmed that an irrebuttable presumption of harm occurs by such delay, and that's by way of the legislative act.

Finally, I'd like to note that not only would finality be upset in these particular cases, but really what we're talking about is respect for the laws.

Every day in this country citizens make bargains with... with the State, and the State makes bargains with its citizens.

It did so by creating a statute of limitations.

And every day, particularly in the criminal field, most, the vast majority of the accused enter into bargains.

They plea bargain.

They give away their rights and accept a bargain.

And we hold them to that.

We hold them accountable for what they bargain.

Are we here... if we accept the State's position, are we here to hold the State to a lesser standard than we hold to what many consider the meanest and lowest amongst us?

I would think not.

I think we would expect the State and the Federal Government to stand for something more, to be the leader and not the follower, to have a standard higher or at least equal to that of which we expect of each of our accused, each person who pleads in this particular case.

I would ask, as I said in the beginning, that this Court hold the State to the bargain that it chose to make, to the terms that it chose to define by creating the statute of limitations.

And if there are no further questions, I will submit the matter.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Najera.

The case is submitted.

(Whereupon, at 12:16 p.m., the case in the above-entitled matter was submitted.)