Ladner v. United States

Argument of Leonard B. Sand Mr. Leonard B. Sand -- as to what the remedy (Inaudible) 2255 did not lie here, and my answer is that there would be no judicial remedy. The only remedy that would be available would be that the executive clemency and since the petitioner is already out on -- on parole that would -- that seemed -- seemed very likely. In other words, the petitioner in this case is in the same position the Government submits as the defendant was in Sunal against Large in 332 U.S. 174. He had a possible defense which he failed to raise on -- on the appeal and he is thereafter precluded from raising it. The petitioner was represented at this trial by privately retained counsel. He had a right to an appeal. He did not avail of himself of the -- of that right. There's a concept that there must be some finality to direct review of -- of criminal judgments and that's a policy which should be respected. And then the district judge should not be asked now to hold a hearing to determine what was the evidence that was introduced at a trial some 13 years ago and to resolve disputes as to what that evidence was. That's not a collateral attack. That -- that's something which -- which went to the -- to the resolution of fact questions of the trial itself. That was the jury's function. Justice John M. Harlan Do you -- Justice Felix Frankfurter Go on. Justice John M. Harlan Do you consider that it makes any difference the point of view of the issue between you as to whether it was one shot or dozen shot? Mr. Leonard B. Sand Well, if it makes -- if it makes no -- if it makes the difference as to whether there was one shot or two, then I suppose that would be the -- the issue at the hearing. Justice John M. Harlan No, but I'm asking you whether you think it makes a difference? Mr. Leonard B. Sand I -- I think it makes no difference –- Justice John M. Harlan No difference –- Mr. Leonard B. Sand -- whether there was one shot or two. I think you can commit an assault without firing any shots. We define and we quote in our brief the -- the -- definition in the common law in assault. It's an act of force which is directed at an individual that's -- the difference between assault and battery, of course, is whether or not there -- there has been an impact and -- and you can assault somebody without firing any shots. Justice Felix Frankfurter Well, suppose he would -- instead of making a difference on the line (Inaudible) that you've given, if that was deemed to be the missing deemed to be the annunciation of a new doctrine that say that (Inaudible) Mr. Leonard B. Sand I'm afraid I don't understand your question. Justice Felix Frankfurter On the assumption that at the time -- the time of the trial, the time when you said he should have -- it should -- the question should've been raised by then counsel if the assumption was it was more than one offense and that then introduced the new rule, the instruction of capital punishment, you would say that makes no difference. Mr. Leonard B. Sand Because -- I would because in Sunal against Large, in fact, the defendant attempted to introduce the -- the defense. The trial judge precluded him erroneously from introducing the defense and despite that, and then there was a -- a later case which -- which would indicate that that defense had been available to him. This is a -- this is a much easier case. Justice Felix Frankfurter Well, I know it's a lot easier if -- Mr. Leonard B. Sand It's -- I think it is -- it is much less harsh to preclude the defendant in this case from collaterally attacking the judgment than it was in the Sunal against Large in which the defendant attempted to raise the defense and was told by the district judge that -- that the defense was not available. Justice Felix Frankfurter But, would you say that the problem as to the scope of the habeas corpus writ sufficiently like a reconsideration of the constitutional question that they didn't want to expect precedence to feel that that's open? Did they have bound (Inaudible) Mr. Leonard B. Sand I -- Justice Felix Frankfurter -- acceptance of powers that could've been bound by any kind of question actually? Mr. Leonard B. Sand I would think, Mr. Justice Frankfurter, that it has been so clearly established in the law that a 2255 proceeding cannot serve the function of an appeal. Justice Felix Frankfurter Well, I don't follow it. That is in generality. I didn't (Inaudible) to know and I normally in more than other cases like to reconsider a case, that happens to same as the sentence. When we deal with habeas corpus, we're dealing with something close to the constitutional rights that I would like to have the Government's view to find your position given in consideration of the decision such as in Sunal and Large is a result of the habeas corpus. Whether you think that decision is close to the problem with the constitutionality and Bill of Rights, one would feel less rigidly bound by the decision. Mr. Leonard B. Sand I would think that one would be bound by it in a case in which there was involved no allegation of procedural unfairness, where the only -- where -- where there was not an attempt to raise the defense and preclusion by the judge. Whether -- Justice Felix Frankfurter -- procedure on Bennet and Sunal except the consel at the time thought that the decisions were clearly against him and the later counsel had more courage, or more wisdom, or a combination of both, could raise the question and raise suggestion. Mr. Leonard B. Sand I have references, Mr. Justice Frunkfurter, to cases which have expanded the scope of habeas corpus where there were instances of procedural unfairness. This is not such a case. This is the purest case of a defendant who later thinks that he had a defense which he failed to raise at the trial and which he seeks to raise at -- at some later day and of course, the delay of -- Justice Felix Frankfurter Because -- because of lawyer's thought with some justification or the deal of justification that at the time he didn't have a defense or what you call a defense. He didn't have an alleviating point namely, the he shouldn't be punished for (Inaudible) rather than (Inaudible) Mr. Leonard B. Sand I -- I -- I accept that, Mr. Justice Frankfurter, and -- and I say that -- that there is a need in the law for finality of judgment and that -- that here is an instance in which the Government has clearly been prejudiced by the passage of time that the Court clerk is deceased. There is -- there are few people available with the contemporaneous recollection of what the evidence was introduced, what the evidence that -- the present trial was. Justice Felix Frankfurter We had in fact contestedly and the evidence might show that he fired (Inaudible) Mr. Leonard B. Sand The evidence might show that, the evidence might show that the co-defendant, who also had a shotgun, fired also. And of course, these people have been convicted of -- of conspiracy and each is liable for the acts of the other. And so, there might have been one firing -- the petitioner merely alleged that he fired only once or he alleged something which we now -- now construe that the allegation that he fired once. But -- but, nothing is said about the -- the co-defendant who -- the (Inaudible) alleges that -- that each uses loaded shotguns in the -- the plural. The allegations of the indictment would indicate that each defendant had a shotgun. Justice Felix Frankfurter The problem we have is a conspiracy problem because actually, there was only one attempt. Mr. Leonard B. Sand No, I'm -- I'm suggesting what the issues -- if -- if a hearing were held, what the issues would be. The issue would be, assuming -- assuming it to be material, how many times the defendant fired the shotgun, whether the co-defendant fired the shotgun. If there -- if there is a conflict as to that testimony, as -- as -- there's certainly will be, the -- the trial judge, I suppose, cases assigned to some other judge can testify that his recollection is that there was more than one shot fired. But the problem will be resolved in some 13 years after the trial, a conflict in the evidence once it's established what -- what that evidence was and -- and I think that would be a very anomalous -- anomalous proceeding and I think that that would undercut the concept of finality of -- of judgment. Chief Justice Earl Warren How does this affidavit get into the record, Mr. Sands? Mr. Leonard B. Sand We -- I have to go outside the record to explain how it -- how it gets in the record. We don't rely on it, Mr. Chief Justice. Apparently, what happened is that when they were preparing -- when the Assistant United States Attorney was preparing -- Chief Justice Earl Warren But if you don't rely on it -- Mr. Leonard B. Sand We don't rely, we don't rely. The -- the only possible significance it could have is to establish the -- the point that there will be a dispute as to whether there was one shot or two and -- and, of course, the statement of the trial judge and his recollection is there was more than one shot insufficient. In -- in cases like -- Chief Justice Earl Warren Corroborated with the judge. Mr. Leonard B. Sand I beg your pardon? Chief Justice Earl Warren Corroborated with the judge's recollection? Mr. Leonard B. Sand It would be corroborated. That's the whole point for suspending a 2255 case back to the trial judge because it's remanded is the most familiar with the dispute. Chief Justice Earl Warren Thank you. Mr. Rosenwald.

Argument of Harold Rosenwald Mr. Harold Rosenwald May it please the Court? The Government has introduced various matters that -- what the evidence was in this case, there is no record. Unless we keep, there is no record here at all. We don't know what the evidence was. Mr. Sand has stated that the co-defendant, Mr. Cameron, had a shotgun though it is -- there was no evidence to that effect. As a matter of fact, in the overt action of the indictment, it is stated that the defendant, Lovander Ladner was carrying a shotgun in his hand and nothing whatever is said about a hammer. And in this affidavit which the Government has claimed, which appears, too in this brief, it is also said that, “Well Mr. Carter. I noticed that Lovander Ladner was carrying a shotgun in his hand,” nothing whatever was said about the co-defendant, Mr. Cameron. We don't know what the (Inaudible) had before it. We don't know what the evidence was that was presented and whether it was contragrated or not. We simply don't know. Here are just a few matters I want to mention briefly. Government predicates most of its argument and claimed that the words in the statute on account of the performance of his duty, it appears in Section 254, mean that there was some kind of a specific intent on the part of petitioner or anyone who brought a statute to commit the offense against the injured party. I don't read those words as showing any specific intention whatsoever. It merely -- those words merely describe the circumstances under which the assault or the resistance or the opposition occurred. The words are no different from the other words in the -- or just above them while engaged in the performance of his official duties. And as the Court will notice in the present brief of the statute, Section 111, of Title 18, those words are pronged together. They're no longer separated. There's one compendious phrase, “While engaged in or on account of the performance of his official duties.” The Government is using those words to support an argument and then goes on and says, “That the intention must be personal with each defendant, therefore, there's a separate offense of each defendant.” That the -- the conclusion is the premise's end justified, the conclusion of course with regard with it. Now, I want to -- I made no contention whatever that if the statute said, “Whoever wounds an officer -- a federal officer, let the wound in the two officers (Inaudible) under the circumstances in this case would constitute two offenses. What I said was if the statute so read, and we would -- we would have to and go to the problem of the Bell case. And I argued the Bell case on that assumption but it did say. But, I certainly didn't concede that there would then be two offenses if the statute so read and I am clear that there wouldn't be. Now, with respect to Section 2255, I would suppose that the words of the statute itself were clearly broad enough to cover this case. They are quoted on page 3 of my brief and they allow a prisoner in custody under sentence of a Court to be released if he shows that the Court was without jurisdiction to impose a sentence or if the sentence was in violation of the constitutional laws of the United States or is in excess of the maximum authorized by law. I can't imagine how we could come more clearly within the statute. There's nothing in the -- in the statute about what facts can be shown. If the records of the Court don't show conclusively that he's not entitled for relief, under the statue, he is entitled to a hearing and what facts are necessary to show whether they were brought before the jury or not, the statute decided on all of that. The remedy has been used repeatedly in cases of excessive sentences. It was used in the Gore case. It was used in the Bell case. In most of the cases cited in my brief, either habeas corpus or Section 2255 were used to attack an excessive sentence. Justice Felix Frankfurter Did you brought it up on appeal? Suppose in this case that you're taking this question of it from the District Court to the Court of Appeals as an ordinary appeal (Inaudible) Mr. Harold Rosenwald I -- I have no doubt it could have. Justice Felix Frankfurter Well, then, does that mean that he can raise the question of excessive sentence either by the ordinary process of appeal or not appeal and bring him under 2255? Mr. Harold Rosenwald Yes. Justice Felix Frankfurter That -- that's followed, isn't it? Mr. Harold Rosenwald Both. Followed. We can always -- we can do it both ways, do it any time as long as the matter is still moot. As a matter of fact, the early occasion seemed to hold this will tell you, certainly, the legal party is sentenced, you may not invoke habeas corpus or 2255. Those two half the way. It's too bad we have to go back there in 13 years and I suppose the petitioners thought that until he served the 10-year legal sentence, he has no right to bring this motion. He did not have to raise it on appeal and the question remains open to that. Chief Justice Earl Warren Mr. Rosenwald, before you be seated, I -- I want to repeat to you what I -- what I said to counsel who preceded you, Mr. Fisher. We -- we do appreciate your -- your representation of this indigent defendant at our -- our request. You've been here twice also. It will be the last time on this -- on this case, but it does give us comfort to know that man of -- men of the bar will do which you have done in this matter for us. And thank you, Mr. Sand for -- for your helpfulness, same language that I expressed to Mr. Weines.