Cases by Issue - Plea Bargaining

Bradshaw v. Stumpf - Oral Argument

Fri, 09 Jan 2009 14:49:03 +0000

Case:

Bradshaw v. Stumpf

Media File:

04-637_20050419-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Douglas R. Cole

Chief Justice Rehnquist: We'll hear argument now in Margaret Bradshaw v. John David Stumpf.

Mr. Cole.

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

John Stumpf pleaded guilty to the aggravated murder of Mary Jane Stout.

The evidence shows he is, in fact, guilty of that crime.

The court below, nonetheless, vacated his conviction on habeas review citing two grounds.

Its reasoning on each directly conflicts with this Court's opinions and significantly undermines the finality of the hundreds of thousands of State court criminal convictions based on pleas.

Justice O'Connor: Counsel, I... I think he was given the death sentence.

Is that right?

Mr. Cole: That is correct, Your Honor.

Justice O'Connor: At the end of the day.

And there was a separate sentencing hearing?

Mr. Cole: There was a separate mitigation hearing under Ohio law, yes, Your Honor.

Justice O'Connor: And was it argued at that hearing by the State that Stumpf was the triggerman?

Mr. Cole: Your Honor, the State said that they... they thought there was evidence to support that.

They said, I don't believe it's necessary for this court to conclude he was the actual shooter, and that's in the joint appendix at 186.

So the death penalty is appropriate--

Justice O'Connor: But it was argued.

Mr. Cole: --The court... or I'm sorry.

The prosecutor argued that there was sufficient evidence to show it.

Justice O'Connor: And was there evidence at the recent habeas hearing that at least one of the sentencers relied on the fact that the judge thought Stumpf was the triggerman and the murderer?

Mr. Cole: Your Honor, after... at the time of the original sentencing hearing there was no other evidence, this new evidence of which he's complaining--

Justice O'Connor: Right.

Mr. Cole: --didn't exist.

When it came into being,--

Justice O'Connor: Right.

Mr. Cole: --he then moved to vacate his sentence at the State--

Justice O'Connor: Right.

Mr. Cole: --court.

And the judge there from the original panel--

Justice O'Connor: Yes.

Mr. Cole: --one of the judges said, it may have made a difference.

Of course, they had before them a motion to vacate the... the sentence at that time, and they denied that motion.

So apparently it didn't make a difference to that judge.

Two other Ohio courts have independently reweighed all of the evidence and found that the death sentence was appropriate.

Justice O'Connor: Well, I guess my concern actually is more with the sentencing proceeding here, in light of what's happened, than with the guilty plea.

And I suppose it's possible that that stands, but conceivably he's entitled to a hearing on the sentencing aspect.

Mr. Cole: I... I guess that would be conceivable, Your Honor, although I note that there's only one due process claim he's making.

He's making one form of constitutional error claim predicated on the Due Process Clause, and if there was no due process violation with respect to his conviction, which is the claim that he was pressing before the Sixth Circuit, there's similarly no due process violation with respect to his sentence.

Justice Souter: Why--

Justice O'Connor: Do you think he has waived any due process claim insofar as it applies to the sentencing?

Do you think that's waived?

Is that clear?

Mr. Cole: No, Your Honor, I wouldn't say that.

In his Sixth Circuit briefs, he does... in a section that's entitled I hereby challenge my conviction, he does also note in that section that he's got some concerns about his sentencing hearing.

So I don't know that he's waived that.

But I don't believe that there's a valid due process claim that he has with regard to either his conviction or his sentence.

Justice Souter: --Why do you argue that if there is no due process violation with respect to the actual plea, there is, therefore, no due process violation with respect to the sentence?

Mr. Cole: Well, because his theory, Justice Souter, is the same with regard to both.

He says this... the use of this--

Justice Souter: Yes, but we... we may say the theory really is... is not sufficiently relevant with respect to the plea but that it is with respect to the sentence.

Mr. Cole: --That's conceivable, Your Honor.

We understand that the... we understood the Sixth Circuit opinion to be directed toward his conviction.

So the--

Justice Souter: I... I... no question about that.

Mr. Cole: --the thrust of our arguments before this Court were directed towards the conviction.

The other side then raised, oh, the State has waived their claim about the sentencing, and... and we were just making--

Justice Souter: No.

Mr. Cole: --clear that, A, we haven't, but B, in any event, the due process theory sounds the same in both.

And so if there's not a due process problem, with respect to these arguably inconsistent theories, then there's not a due process problem with respect to his sentence either.

He hasn't brought any other set of facts--

Justice Souter: No.

I... I understand that.

May I go back just to one factual issue before we go on and forget it?

You... you stated, in response to Justice O'Connor, that the State argued in... in the Stumpf case that there was sufficient evidence to find that he was the triggerman.

Did the State stop there and say, in effect, we don't care whether you find him the triggerman or not?

We're just telling you there's enough evidence.

I... I assumed the State went on to say there is enough and you ought to find that he is the triggerman.

Mr. Cole: --Well, Your Honor, referring to page 187 and 188 of the joint appendix, he says, given those circumstances, although we believe the evidence does prove he was the shooter of Mary Jane Stout, legally, technically, I don't believe it makes any difference when you have two people acting in concert for the joint and unlawful purpose of committing an aggravated robbery and... and murder results.

Justice Souter: Did... did the prosecutor ever say he was the triggerman?

The evidence supports it and... and that's the conclusion that ought to be drawn: he was the triggerman.

Mr. Cole: He said there's ample evidence from which the court could conclude--

Justice Souter: But did he take the second step and say there's ample evidence and he was, in fact, the triggerman and you should so find, or in so many words?

Mr. Cole: --In so many words, Your Honor, in connection with the mitigation phase, in... in connection with the factual basis hearing even, he put on the evidence saying, you know, Mr. Stumpf says he wasn't the shooter and gives a lot of reasons to discount that evidence.

So he's arguing that in fact Mr. Stumpf was the shooter.

I think it's a fair implication if he doesn't say the express words, but it's a fair implication.

Of course, at that time, there was absolutely no evidence to the contrary.

Mr. Wesley had not yet been extradited from Texas.

He hadn't even made this alleged statement to Mr. Eastman.

Justice Ginsburg: Well, the... the evidence was Stumpf... Stumpf himself who said Wesley was the triggerman with respect to Mrs. Stout.

But I wanted to ask you a question about... that... it relates to the sentencing part and it follows up Justice O'Connor's question.

The... the... you... as... if I understood you right, you said, well, there was a motion that came before two of the three judges that were part of the guilty plea and the sentencing.

This was a plea, so no jury trial.

It was three judges.

One of them had died.

The... the two who remained... one of them said, but if we had not been satisfied that Stumpf was, in fact, the triggerman, and we were satisfied that he was, in fact, an aider or abetter, that may very well have had an effect on the court's determination whether the death penalty should follow.

I'm not saying it would, but it's possible.

And then you said, but then he went ahead and voted to deny the motion.

Mr. Cole: To vacate the sentence, yes, Your Honor.

Justice Ginsburg: Yes.

But there's no explanation at all.

The only expression that we have from that judge is... he said, well, it's conceivable, although it wouldn't affect guilt, we would have come out with a different sentence, and then going from that statement to nothing, just a denial without explanation.

You... you want us to infer from that silent denial that the judge must have resolved his own difficulty and decided it wouldn't make any difference on the sentence.

Mr. Cole: Well, A, I think that's an inference that's supported by the fact that he voted to deny the motion, but B, in any event, there's been an independent reweighing of all of the evidence in the Ohio intermediate appellate court and that court said that... very specifically said, even if we didn't believe he was the principal... or principal offender, the actual shooter... we do believe that.

But even if we didn't, the death sentence here would be appropriate.

And this Court noted in Clemons that an independent reweighing by an appellate court of the evidentiary record can be sufficient to secure... or to--

Justice Ginsburg: But it would be appropriate because the statute permits it.

But the decision-maker has three choices.

And if the evidence had come in that Wesley was the triggerman, maybe the... this panel of judges would have done what the jury did in Wesley's case, that is, it's the same crime, but not give the death penalty for it.

Mr. Cole: --Well, Justice... Justice Ginsburg, the... the evidence wasn't available at the time of the original sentence.

So the failure to have that part of the record at the time of the original sentencing hearing, of course, can't violate due process.

And then the question would be, did something that happened later violate due process?

But I just don't think it can be the case that anytime new evidence comes up that might cause a judge to say, boy, if we'd have had that evidence before when we... when we reached the sentencing decision, we might have reached a different result--

Justice Kennedy: Well, what... what is the rule if there are two successive... there are successive trials with different defendants and there can only be one shooter and in each trial it's found that the defendant is the shooter?

What should be the rule, or does the... does the second person get the advantage?

Does the State have to begin all over again with both?

Or... or does the State have no obligation to correct either?

Mr. Cole: --Well, Justice Kennedy, I... I think it depends, at least in part, on what role that finding played.

If those two verdicts each had as an essential component this fact, this person is the shooter and this person is the shooter, so that the verdicts are necessarily inconsistent so that we know the State has actually got someone in jail they're punishing that's innocent, we would concede there may be a substantive due process right of the... against the State because the State at that point--

Justice Scalia: By whom?

By whom?

By which one of the two?

Mr. Cole: --Your Honor, I... I think that's a great question.

Justice Scalia: Do we flip a coin?

Mr. Cole: Well, I... I think the point is probably both would have some kind of claim in that I don't think the State can pursue and convict two people on necessarily inconsistent theories because at that--

Justice Scalia: Why... why is that?

I mean, it seems to me due process requires that there be enough evidence to... for a jury to find beyond a reasonable doubt that... that the person was the shooter.

And if in... if there is, indeed, in both cases enough such evidence, it seems to me there is no denial of due process, and that the usual manner of accommodating for that apparent injustice is... is for the Governor to grant clemency to one of the two, have him figure out which one of the two wasn't the shooter, or to apply for... for reopening of the... of the... of one of cases.

But I don't know that there is automatically a due process violation which allows one or the other of the cases... proper convictions.

Each one is fully proper.

I don't know that there's a due process violation that allows one of them to be set aside.

Mr. Cole: --And I don't know that there is either, Your Honor.

We'd be willing to concede that for purposes of this argument because even if there is, it doesn't apply here--

Justice Scalia: Due... due process doesn't mean perfection.

It doesn't mean that each jury has to always reach the right result.

Mr. Cole: --I... I agree with that, Your Honor, and I hate to argue against my position, so I... I do this gently.

But at the same time, the court has noted and... and one of the old saws of American law is... is it's better one guilty person should go free than that one innocent person should be punished.

And if the State knows, as a matter of fact, that it secured two convictions for a crime that only one committed, the State knows at that point that it's punishing at least one innocent person and that might violate--

Chief Justice Rehnquist: When... when did this new evidence come to light?

Mr. Cole: --The new evidence came to light some 6 months after his plea was entered and after the sentence was announced.

Chief Justice Rehnquist: Did the other guy confess to a... kind of a jailhouse snitch?

Mr. Cole: To... to a jailhouse informant, yes, Your Honor.

And the prosecutor put that evidence on at trial, at Wesley's trial, but it's interesting to note what he did with that evidence at Wesley's trial.

He put it on but then in closing very expressly noted that while there's been this evidence, even if you don't believe he's the principal offender, you can still find him guilty of aggravated murder.

Justice Souter: But it is the case that he argued that... that you should find him guilty because he was the triggerman.

I mean, that was an alternative argument.

So the... I mean, I think what's the... the concern following Justice Kennedy's question, the concern that I have is not with the... the guilt or innocence as such here.

It's with the sentencing.

And as... it seems to me fair to say that as the record stands now, the State has made two arguments: one that Stumpf was the triggerman, one that Wesley was the triggerman.

It has to be the case that one of those arguments, if accepted, would lead to a false result.

And the question... I think the due process question is whether the State can pursue those inconsistent arguments, even if it starts out innocently doing it, but can it pursue two inconsistent arguments knowing that in one case the argument must be for a false result, without there being any kind of... of process to correct the State's inconsistent positions?

What... I mean, what's your response to that?

Mr. Cole: Well, Your Honor, first, I... I don't think they're... he was without process.

Mr. Stumpf had abundant process within the State system.

He got all the evidence--

Justice Souter: Oh, he could... he could get into court, but as I understand it, there was no recognition here that there is... that there is in fact something wrong with the two inconsistent... or the two arguments of the State, each of which, if accepted, will necessarily result in one false conclusion.

Mr. Cole: --Well, Your Honor, the... again, the intermediate appellate court independently reweighed this evidence and concluded that even if we conclude that Mr. Stumpf is not the shooter, even if that's our... our conclusion... it isn't, but even were we to conclude that, the death penalty would still be appropriate here.

So there's been an independent reweighing of the evidence minus the mitigating evidence or minus the--

Justice Souter: Maybe... maybe that's enough.

Let me, with respect to that, just ask you one final question.

And I'm assuming the... the answer, but I want to be sure.

I assume that at the point of this intermediate court's reweighing, the intermediate court was aware of the... the evidence of... of... the hearsay evidence of Wesley's confession and was aware that the State argued in the second case that Wesley was the triggerman.

Am I correct?

Mr. Cole: --Yes, Your Honor.

He... the prosecutor, in fact, stipulated to the admissibility of the Eastman and the Wesley evidence from Wesley's trial back into the Stumpf proceeding in the original trial court before the two judges... the two of the three judges that were remaining at that point, and then--

Justice Souter: And... and I take it also--

Mr. Cole: --That was part of the record on appeal.

Justice Souter: --stipulated or represented or admitted, whatever, that in fact the State had argued in the second case that Wesley was the triggerman.

Mr. Cole: I believe so, Your Honor.

The indictment in Wesley's case included a specification that he was the principal offender, so at the very least, the indictment would--

Justice Souter: Because of being... because of being the triggerman.

Mr. Cole: --The only way to be the principal offender under that specification is to be the triggerman.

So that... that's clear from the face of the indictment in... in Wesley's case that the State had argued that.

Now, the jury, importantly in Wesley's case, found that he should be acquitted on that aggravating circumstance.

It's not an element of the crime, but it's one of the aggravating circumstances that the State could rely on in seeking the death penalty in Wesley's case, and the jury specifically rejected that aggravating circumstance and... and found that the State had not proved it beyond a reasonable doubt.

Throughout the... throughout the appellate process, with regard to the sentence, the State's attorney argued that, yes, there's evidence in the record from which you could conclude that he's the actual shooter, but in any event, it doesn't matter.

And the... the State's attorney was correct in that, as a matter of Ohio law, aiders and abetters can both be found guilty of aggravated murder under Ohio law and are subject to the death penalty.

The two... the two aggravating circumstances... I'm sorry.

The one aggravating circumstance that remained after the plea deal turned merely on the reason why Mrs. Stout had been put to death.

It did not turn at all on who was the person who put her to death.

So as an accomplice, aider, and abetter, with liability for the aggravated murder, he was also subject to the death penalty under that--

Justice Stevens: But, General Cole, isn't there a distinction between eligibility for the death penalty and actually making the decision to impose the death penalty?

And it's perfectly clear... you're dead right, of course.

He's eligible under either theory.

But is it not likely that the sentencer would be more likely to sentence the defendant to death if the sentencer thought he had been the actual shooter?

Mr. Cole: --I... I think it's definitely a fact that the court weighs, although here we have evidence that at least one Ohio court took that possibility into account and said even in light of that fact--

Justice Stevens: Right.

Mr. Cole: --we still conclude that the death sentence is appropriate.

So I don't know that we can say that in this case it in any way would change the outcome.

In fact, the record--

Justice Stevens: Well, and the original sentencer might... might not have done the same thing.

We don't really know that.

Mr. Cole: --Well, this did go back in front of the two... two of the three original sentencers and they declined to allow him to vacate his sentence.

The intermediate appellate court then independently reweighed and expressly said, whether he's the shooter or not, he's eligible for the death sentence.

So there have been a number of Ohio judges that have--

Justice Scalia: As I understand the facts, even if he hadn't shot the wife to death, which was what the prosecution was for, he had tried to kill the husband, shooting him twice in the head?

Mr. Cole: --Twice at the head from essentially point-blank range, Your Honor.

Justice Scalia: From point-blank range.

Mr. Cole: Right.

Justice Scalia: And then there was some discussion that the... that the lying, seriously wounded husband heard between the two perpetrators, and then there was shooting of the wife.

Whether he pulled the trigger or not, could that possibly make a difference?

He did pull the trigger trying to kill the husband.

Is it difficult to... to think that... that he willingly allowed his... his cohort to do the same to the wife?

I... I can't imagine it would make any difference.

Mr. Cole: Your Honor, we agree and that certainly falls well within the... the range of culpability that this Court set out in--

Justice Breyer: There's no doubt that they could have... the trier of fact could have reached the same conclusion.

But I guess the problem is that when you go back to reopen the evidence the second time and the judges are sitting there, someone might have thought, well, the husband didn't die, and we don't know if he actually pulled the trigger on the wife.

And we're trying to guess what those judges would have done if they thought that.

I don't know.

It could be that people don't want to impose capital punishment without thinking I know that this person has killed somebody, and if that's so, they wouldn't have reached the same conclusion.

Now, I guess that's the problem because at that time on reopening, the State told that panel of judges pretty clearly by implication that the State thought that the evidence did support Stumpf having pulled the trigger, even though at that point the State knew and indeed referred to the statement to... you know, the confession and all the things in the second trial.

Now, what do you think about that problem?

Mr. Cole: --Well, first, Your Honor, I don't think we have to guess what the judges would do because the judges did what they did.

They denied the motion to vacate and then--

Justice Breyer: They denied it, but as I read what the Ohio court said after the denial, I thought it did probably rest upon their determination that Stumpf had pulled the trigger.

Mr. Cole: --And certainly the intermediate--

Justice Breyer: Did you think that?

Mr. Cole: --Well, the intermediate appellate court expressly said that its determination did not turn on who had pulled the trigger, that they would have reached the same conclusion independent of who pulled the trigger.

Justice Ginsburg: But the panel... the panel that didn't reopen... there was no reopening because they denied the motion.

But they didn't say one way or another.

Justice Breyer: It's the Supreme Court of Ohio that then I think I got my impression from, and of course, they don't know either.

Mr. Cole: Well--

Justice Breyer: The fact is we don't know what that original panel thought.

Mr. Cole: --That's--

Justice Kennedy: Well, it isn't that... isn't one of the answers to Justice Breyer's questions that you... you never know exactly what a fact finder would do.

What you have to deal with are reasonable likelihoods and reasonable possibilities.

Mr. Cole: --That's--

Justice Kennedy: And when... and when you have someone who shoots the first person and is obviously attempting to kill him, and then there's an apparent discussion... not... not 100 percent clear that those were the two voices.

It's pretty clear because there were only two other people there.

So we talk about reasonable likelihoods, don't we?

Mr. Cole: --I would think that's--

Justice Breyer: Absolutely right.

Of course, that's right.

We can't be sure what they would have done, and because we can't be sure what they would have done, I guess it might well have made a difference that the State told that panel we think Stumpf pulled the trigger.

Mr. Cole: --But--

Justice Breyer: And that's what gives rise to the problem in the case.

Mr. Cole: --But, Justice Breyer, I think it... it's always going to be the case that after a sentence is announced, there's the possibility that new evidence might come up that would cause us to say we can't know for sure what this panel would have done with that new evidence.

And so there needs to be--

Justice Breyer: --the State say when it comes to the panel, the reopening panel, we'll tell you something.

We think, indeed, that's what we argued, that the State... in the last case we argued that Stumpf didn't pull the trigger, that the balance of evidence is against that, but nonetheless, he should be sentenced to death.

That would make your position absolutely consistent with what you argued in that second trial with Mr.--

Mr. Cole: --Mr. Wesley.

Justice Breyer: --Mr. Wesley.

Mr. Cole: But, Your Honor, I'm not sure that that would have been the State's position.

I don't believe after the Wesley trial, that the balance of the evidence necessarily showed that Wesley was the shooter versus Stumpf.

That was one person's testimony.

Justice Kennedy: Yes.

Now, the... the jury in the Wesley trial rejected that position.

Mr. Cole: They did, Your Honor, and Mr. Wesley... it isn't as though all the new evidence is in Mr. Stumpf's favor.

Mr. Wesley, the only other eyewitness who's testified, came and sat on the witness stand and said, yes, Mr. Stumpf pulled the trigger.

At the end of the day, the only two people who know exactly who pulled the trigger are Mr. Wesley and Mr. Stumpf, and they have every reason to point their finger at the other person.

So if that's--

Justice Souter: Okay, but wait.

Who did the... who was the last person the State pointed its finger at?

You... you told me in... in response to earlier questions that when the case back before the two remaining members of the panel, that in fact the State brought the... called to their attention the fact that Wesley had confessed and... and it was... it was clear one way or another that... that they had argued in Wesley's trial that he was the triggerman.

When they... at that point when they are back before the two remaining members of the panel in Stumpf's case, did the State say we now go back to our original position that Stumpf was the triggerman and Wesley wasn't, or did they say we think... we think Wesley is the triggerman and Stumpf wasn't?

Or did the State simply stand there agnostic?

Mr. Cole: --The State... and I would encourage the Court to look at the State's response to that motion, which is in joint appendix at 126.

But what the State says on 126 is... essentially there's a lot of agnosticism in the response.

It says, look, there's this new evidence.

We don't know.

It seems like from this record you could conclude that Stumpf was the shooter, but then the State says even deleting that finding, even if you don't agree with us, or even if you don't agree that's the case, because the State isn't really saying this is our position anymore, even if you delete that finding, there's still sufficient evidence here to support a death penalty against Mr. Stumpf.

Justice Scalia: Could... could I get one fact?

Wesley didn't confess or we don't know that he confessed.

He... he said he wasn't the shooter at trial, didn't he?

Mr. Cole: That's correct, Your Honor.

Justice Scalia: But what was introduced was... was the testimony of one of his jailhouse companions who said that Wesley had told him that he was the shooter.

So who was the shooter was... was as much an issue in Wesley's trial as it was in Stumpf's trial, wasn't it?

Mr. Cole: As the court expressly... or as... as the State expressly noted in its closing in that case--

Justice Stevens: Yes, but the State's position was that the jailhouse informant had told the truth, wasn't it?

Mr. Cole: --In closing--

Justice Stevens: At the trial.

Mr. Cole: --In... in closing at that trial, Your Honor, the... the prosecutor was relatively agnostic, frankly.

He said, look, you could conclude--

Justice Stevens: He at least put in the evidence.

Mr. Cole: --He... he put in the evidence, and then he said, look, from this evidence you could conclude that Wesley was the shooter.

You could also--

Justice Stevens: And normally you don't put in evidence unless you think it will support a proposition that you... that you're in favor of.

Mr. Cole: --Well, and Your Honor, I... I think if he could show Wesley was the shooter, that would, of course, support a conviction against Wesley, but he recognized that the jury didn't necessarily need to believe that, and in fact, he wasn't relying on that in order to secure the conviction.

Justice Souter: May I ask you one final question?

As a matter of due process, why shouldn't the State... after learning of the supposed admission in Wesley, after taking Wesley's position, why shouldn't the State, when it gets back to the Stumpf case before the remaining two members of the panel, have to fish or cut bait on a position and say we think he's the triggerman and we want you to affirm on that basis, or we don't think he was the triggerman because we've taken this other position?

Why can the State, as a matter of due process, stand there agnostic?

Mr. Cole: Because, Your Honor, the State is not the fact finder.

The judge is the fact finder.

The State needs to put the evidence in and allow counsel for the defendant, counsel for the State to argue positions, and let the fact finder make the ultimate determination.

With the Court's permission, I'd like to reserve the rest of my time.

Argument of Alan M. Freedman

Chief Justice Rehnquist: Very well, Mr. Cole.

Mr. Freedman, we'll hear from you.

Mr. Freedman: In light of the questioning, I'd like to indicate what exactly was argued below and what was the rulings.

In... in the first Stumpf trial, they... they argued that there was, quote/unquote, ample evidence to point--

Chief Justice Rehnquist: Who is they?

Mr. Freedman: --The prosecutors.

I'm sorry.

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

The prosecutors argued that there was ample evidence, quote/unquote, pointed--

Justice Ginsburg: Mr. Freedman, it wasn't a trial.

It was a... it was a plea hearing.

Mr. Freedman: --That's correct, but there was... but... but in Ohio there's a requirement to have an actual prove-up of the aggravating factor itself.

And they argued that there was ample evidence, quote/unquote, pointed to Stumpf as the killer, and that's in joint appendix 186 to 187.

Ultimately they... and they urged that he was the shooter.

Then when the Wesley trial took place, at the trial they did the same thing.

They used the same terms, quote/unquote, ample evidence that Wesley was the shooter.

They urged a finding that Wesley was... was the shooter.

Justice Ginsburg: I... I thought the prosecutor in closing in the Wesley trial said, it could have been Stumpf, but it doesn't make any difference.

Mr. Freedman: They--

Justice Ginsburg: I thought they argued both?

Mr. Freedman: --That... they really didn't argue both.

They... they... effect... that was the throwaway argument.

They came in there... what... what I think is critical in both trials and later on in the proceedings is what they were urging, what they were recommending the... to the jury.

Justice Kennedy: Well, but it's at the bottom of page 187.

We're on this same point.

Given these circumstances--

Justice Scalia: What... what page is that?

Justice Kennedy: --187 like the... of the joint appendix.

Given these circumstances, although we believe the evidence does prove he was the shooter, I don't believe it makes any difference when you have two people acting in concert for the joint and unlawful purpose of committing an aggravating robbery.

That's at the top of 188.

Mr. Freedman: But the... but they urged.

They recommended.

They didn't come in and say... and throughout this proceeding... we don't know who the shooter is.

We don't care who the shooter is.

They both deserve the death penalty.

They... they were... the prosecutors were aware that the... the death penalty is what stirs the pot here, and so they were urging somebody to be the shooter to get the death penalty.

If this wasn't a death penalty case, I don't think they... it would have mattered who killed who.

And so they were urging--

Justice Kennedy: Well, I think there's quite a difference in... in case A where you say our position is that Stumpf was the shooter, pure and simple.

That's it.

In case B, they say we think Stumpf was the shooter.

We're not 100 percent sure, but he should get the death penalty.

The alternative is before the sentencer and the sentencer can make that determination.

Mr. Freedman: --But... but they took the position of actually urging, making a recommendation.

I... I don't think there would be a due process violation if they said, we don't know.

They didn't take that.

They... they urged a position, and I think that's the key factor when the... in this case.

Justice Scalia: What... what was the due process violation here?

You're talking about due process in the second trial, in--

Mr. Freedman: The due process violation, Your Honor, would be--

Justice Scalia: --Was in the first trial?

Mr. Freedman: --No, of course, there wasn't in the first trial.

Justice Scalia: But that's the trial that you're trying to get set aside here.

Mr. Freedman: We submit that the due process error is at the motion to vacate.

At that time, again, after taking the position that Wesley was the shooter, they came back and urged that... that Stumpf was the shooter, that the record was ample enough to support Stumpf being the shooter--

Justice Scalia: Well, it was.

They're... they're just... they're just arguing that the evidence we introduced supported the jury verdict.

What... what is wrong with arguing that?

There's--

Mr. Freedman: --Because they've taken inconsistent positions.

The... the violation here is in the positions itself, not in necessarily the results.

Justice Scalia: --Not... not if they said in the second trial it doesn't matter whether he's the shooter.

Mr. Freedman: I think they did more than it didn't... it just didn't matter.

I think they urged the position.

It would... I mean, a lot of the cases in the lower courts have made that distinction when the... when the State comes in and says, we don't know what happens.

We can't tell you who the shooter is or not, and we don't care who the shooter is.

Justice Kennedy: Suppose the State had said on motion for resentencing in Stumpf's trial, Your Honor, we took the position that Wesley was the shooter in Wesley's trial.

The jury disbelieved that.

We accept the jury's verdict.

Our position now is that... that Stumpf was the shooter.

We've learned from the jury verdict in the Wesley trial.

We've had 12 people.

They heard the evidence.

We'll accept that.

Any difference in that case and what we have here?

Mr. Freedman: It's different, but that's not what happened.

It's different if they've taken... if they've taken the position--

Justice Kennedy: It... it would... in the case I put, would your argument be the same, and if so, why?

Mr. Freedman: --I... I put it that it's not the same because they... first of all, in reality, that's not what they did.

But let's talk in terms of the hypothetical that... that you've asked me.

It is that you have to also look at what actually happened in the Wesley trial to determine due process for Stumpf because Wesley... what happened in this case through the whole circular reasoning, Wesley didn't get the death penalty here because they were informed that Stumpf pled guilty, was found to be the principal offender, and was sentenced to death.

Now--

Justice Ginsburg: That was introduced by Wesley, not by the prosecution.

Mr. Freedman: --That's correct.

The prosecution in the Wesley trial originally did not want the... the jury to hear at all what happened in Stumpf's trial.

They wanted to argue the complete... that... that Stumpf's verdict was not even... should be informed.

The sentence of death shouldn't be informed or the sentence of death.

And in fact, that's when they started to throw in a little bit of the alternative theory after that evidence did subsequently get in.

The record shows that they originally did not get it in and they allowed the defense counsel... prevented defense from getting... in the Wesley trial from getting in the evidence of the Stumpf trial.

Justice Ginsburg: Mr. Freedman, you're trying to read back now into what apparently you recognize is... is not a flawed initial sentencing hearing.

Mr. Freedman: That's correct.

Justice Ginsburg: And it might be more persuasive if the trier were a jury when the motion to vacate is made, but these are judges whose business it is to preside over these kinds of cases.

They presided over that first hearing and now the same prosecutor... was the same prosecutor in both?

Mr. Freedman: That's correct, Your Honor.

Justice Ginsburg: Comes back to them and says, judges, don't vacate the sentence that you yourself entered.

It's... given that we're dealing with sophisticated judges, the same panel in both episodes, it's a little hard to... to see where the due process violation is.

Mr. Freedman: The due process violation is that at the minimum, assuming that... that a weighing is even appropriate here, they never weighed it, and clearly any indication that there was a waiver... a... a weighing of whether Mr. Stumpf would be put to death as an aider and abetter.

They never took Eastman's testimony as true and... and the prosecution's position as true, and then ultimately said it would make no difference.

Justice Souter: Well, they didn't have to take it as true.

As I understand it, when they went back before the... the two original judges on the motion to vacate, they didn't have to take the... the testimony about the jailhouse admission as true, and they didn't have to take the State's position at the Wesley trial as true.

It was evidence.

It was before them.

They were in... they were required to consider it.

But as I understand it, the State at that point essentially was... was agnostic.

The State said, you know, this is what happened, this is what we said, this is what the jury did in the second trial, but regardless of how you determine... of... of any determination about triggerman, this man Stumpf still deserves death, so don't vacate the sentence.

And... and there was nothing I guess... number one, there doesn't seem to be at that point a... a problem with the State taking inconsistent positions, i.e., with its position in... in the... in the Wesley case, and there doesn't seem to be any... any lack of candor.

There may be a... a lack of initiative on the State's part to fish or cut bait, but there's no lack of candor.

So where does the due process violation come at that point?

Mr. Freedman: We submit the due process violation comes at the time of the motion to vacate.

We urge... we're urging that they've not take an agnostic position as prosecutors.

They're... they're urging again saying the... the evidence is ample to support that... that Stumpf was... was the shooter.

Justice Souter: But it... I mean, that... that statement is true, I take it.

Mr. Freedman: But... but they're also urging a position.

The State at some point should take a position on what the evidence is.

At that position... at that point, after urging that Mr. Wesley is the shooter, they... were they untrue?

Were they... I mean, the prosecutors at that point maybe then... if they were believing that... that Eastman was testifying truthfully, why wouldn't they now believe that he was testifying truthfully now in the motion to vacate?

Justice Scalia: Well, because it seems to me they... they would have two arguments.

One is even if he wasn't the shooter, you... you should... you would have imposed the death penalty anyway, but argument number two is, wait a minute.

You know, yes, we... we don't know who the shooter is but there's a... there was no violation of due process here.

There was plenty of evidence for you to find that he was the shooter.

That evidence is still there.

Do you expect them to throw away that argument?

I mean, it's... it's very true and it goes to whether this conviction and sentence deserve to be set aside.

Mr. Freedman: We... we proffer to the Court that they shouldn't be taking inconsistent positions as to... in a death penalty case in the sentencing--

Justice Ginsburg: What should... what... was Wesley then denied due process?

Because at the time of Stumpf's initial plea hearing, Eastman hadn't appeared and there was only Stumpf's testimony that he was not the triggerman and the prosecutor's evidence that he was.

Then we get to Wesley, and Eastman shows up.

The prosecutors have already taken the position that Stumpf was the triggerman.

Is Wesley denied due process because they're taking inconsistent positions at his trial?

Mr. Freedman: --I... I don't believe that Wesley was denied due process.

They discovered the evidence afterwards and ultimately at that trial they had... the Wesley jury had the opportunity to hear what happened in the Stumpf trial, and they were able to weigh that case along with the evidence of the Stumpf finding and sentence of death and the finding that he was the principal offender.

That's something we submit has not happened in this death penalty case.

Justice O'Connor: Well, do you concede that the evidence presented in the Stumpf proceeding was sufficient to support a finding of guilt as an aider and abetter?

Was there enough evidence that the fact finder could so find?

Mr. Freedman: Without the Wesley evidence, I... I... at the initial trial, I certainly would concede that.

Justice O'Connor: Right, right.

Mr. Freedman: As... as to... as to whether the evidence that you learn from the Wesley trial... that's a much closer question because the... the aggravating factor in this case--

Justice Scalia: She asked as aider or abetter, not as shooter.

Mr. Freedman: --Okay, all right.

I'm just... that's correct.

Justice O'Connor: And as to that, it seems to me the guilty plea can stand and the only question that, it seems to me, I would have would be with the sentencing, and I'm not sure that has to be overturned.

Mr. Freedman: Well--

Justice O'Connor: So it would help to focus on that.

Mr. Freedman: --I--

Justice O'Connor: Did you address, on behalf of Stumpf, some allegation that he has to be resentenced?

Mr. Freedman: --That's correct, and that's what the Sixth Circuit--

Justice O'Connor: Is that still before us?

Mr. Freedman: --That... that is correct.

Justice O'Connor: Or has that been subsumed somehow?

Mr. Freedman: No.

That's before you.

In fact, there's a... there's a question of whether they even challenge that.

But clearly, that the sentence by the Sixth... the sentence was challenged by the Sixth Circuit and found to be defective and a violation of due... of due process, and that's in the cert--

Justice Scalia: I thought a State appellate court had effectively reweighed and effectively resentenced, saying that this additional evidence would, in our view, have made no difference.

And we... we allow that to happen all the time.

We speculate as to what the... what the sentencer would have done had an invalid factor not been there.

I mean, when... when a... an aggravating factor is... is invalidated, the State supreme court can determine, you know, whether the same sentence of death would have been imposed even without that aggravating factor.

Why is this any different?

Mr. Freedman: --Well... well, I'd like to ask... answer that in two ways.

First, the... we would submit that a reweighing isn't necessary.

This is not like vacating an aggravating factor.

This is determining a constitutional error of due process.

But let's assume for the moment that reweighing is... is adequate.

There was no reweighing, proper reweighing, in either the appellate court or the Ohio Supreme Court.

The... the appellate court, which is the intermediate court in Ohio, came out and said both Wesley and Stumpf were principal slayers as if they were both shooters.

And the whole opinion is hinged on the assumption that Mr. Stumpf pled guilty to being the shooter.

If you... I mean, that's... we submit that's just a fair reading of the opinion.

And also, if you go to their main opinion, which is the final opinion, which this Court reviews, the Ohio Supreme Court... they did the same circular reasoning.

Ultimately they said he pled guilty.

He was the shooter, and therefore, Eastman's testimony will have little weight as hearsay to... to vacate the death sentence.

They never independently weighed the case saying, let's take Eastman as true, let's look at this case as an aider and abetter--

Chief Justice Rehnquist: What is your best case, Mr. Freedman, for the idea that an inconsistency, such as you say was present here, is a violation of due process?

Mr. Freedman: --The best case we cite in our brief is Green v. Georgia.

Justice Scalia: Which one?

Mr. Freedman: Green v. Georgia where they came in with inconsistent positions.

Justice Souter: Mr. Freedman, you've... you've argued just a second ago that both of the appellate courts decided the case or went through so-called reweighing on a false premise that he had pleaded guilty to being the shooter.

Let me go back to the... to the two remaining members of the original trial panel.

I take it they did not make that... in your judgment that error.

Mr. Freedman: In all candor, I don't know.

There's no finding.

They simply said denied.

Justice Souter: Yes.

Let me... let me ask you what your position would be if a hypothetical Justice Kennedy suggested earlier in the argument were true.

What if the State had gone back at the... at the hearing before the original two in response to the motion to vacate and had said, we did argue in the Wesley case that he was the triggerman?

The jury rejected that argument.

They found that... that he was not.

We've... we've learned from... from our own experience and... and we now no longer think that... that the evidence from the jailhouse informant should be accepted.

We're back to the position that we took in the... at the Stumpf sentencing hearing originally, that... that he was the triggerman.

If the State had taken that position, would you have a due process claim?

Mr. Freedman: On... on this... on this record, we would have a due process claim for twofold.

We submit that the... that the error is in the attempt not necessarily the success, and particularly in the--

Justice Souter: I'm... I'm not getting it.

What do you mean?

Mr. Freedman: --I mean... I mean, it's... it's that they honestly believed that Wesley... that in the Wesley trial, that Eastman testified truthfully.

They believed that.

Justice Souter: Well, can't they... can't they profit from the jury's verdict?

Mr. Freedman: Perhaps, but not in this particular case because what the jury weighed in Wesley was not only Eastman's testimony, they weighed the fact that Stumpf pled guilty, was found to be the principal offender, and was sentenced to death.

That's a... I mean, that's going to lead to... I... I... maybe I'm off base here, but that's going to lead a jury to come out in a conclusion to find Wesley the aider and abetter and not--

Justice Stevens: The jury simply decided they didn't want to sentence two people to death for the same offense.

Mr. Freedman: --Right.

I mean, they already had the principal offender.

They already had somebody sentenced to death for it.

Justice Breyer: Can I ask you a procedural question here?

When I read the... the Ohio Supreme Court opinion, my impression of their due process part of it is that they found a violation because of the inconsistency between the Wesley trial and the Stumpf sentencing proceeding.

When you started to talk to Justice Scalia, you agreed that couldn't be right.

Rather, you said there is an inconsistency between what the prosecutor said at the Wesley trial and what the prosecutor said when Stumpf made his motion to vacate.

Now, if that's so, I'm not sure that the Ohio Supreme Court or the lower courts have addressed that question to determine whether they really were inconsistent, and if so, what or why or what difference it made.

But I haven't read the record thoroughly, and my impression might be wrong.

So I'd appreciate your telling me what are the facts there.

Mr. Freedman: They... they argued generally in... in the record, and it was... it was somewhat cryptic.

They argued that it was unfair--

Justice Breyer: All right.

Who is they?

Mr. Freedman: --I'm sorry.

I apologize.

The... the defense counsel.

Justice Breyer: I'm not interested in what defense counsel did or did not say.

I'm interested in what the Ohio courts did or did not say.

Mr. Freedman: Thank you.

Justice Breyer: And my point there is my... do I repeat it or do you have it?

Mr. Freedman: I have it now, yes.

The... the Ohio... the Ohio Supreme Court simply... simply used... simply used some sort of circular reasoning.

They... they hung to the position that Stumpf was the shooter, and then after that--

Justice Breyer: All right.

Let's go to the circuit court of appeals.

When I read the decision of the circuit court of appeals in the due... what... what am I reading, which is... this is in the Sixth Circuit Court of Appeals.

Mr. Freedman: --Okay.

Justice Breyer: They went on both grounds, first the confession... sorry... the guilty plea, and second, the inconsistency.

Now, there I thought that the Sixth Circuit Court of Appeals was... now, I think I misspoke because I think that's where I see the problem.

Mr. Freedman: Okay.

Justice Breyer: You understand what the problem is or shall I--

Mr. Freedman: Yes, I see it.

You want to know somewhere in the Sixth Circuit opinion?

Justice Breyer: --The Sixth Circuit seemed to be addressing the inconsistency between the sentencing proceeding of Stumpf and the Wesley trial.

Well, you say the inconsistency we should focus upon is between the Wesley trial and the motion to vacate.

And I think you're right about that because I can't imagine the other being a problem.

Mr. Freedman: I... I... maybe I should clarify.

I... I think that you have to compare the Wesley trial with the Stumpf trial.

Justice Breyer: It's relevant in terms of evidence, but I think you're asking us to say that there is a due process violation because of the inconsistency between what the prosecutor said at the Wesley trial and what the prosecutor said when Stumpf made his motion to vacate.

Am I right?

Mr. Freedman: That's correct.

Justice Breyer: All right.

I'm asking you if the Sixth Circuit or the Ohio courts has addressed that question.

Mr. Freedman: I'm uncertain.

I... I think they did it in a generic fashion.

Justice Breyer: So I read this.

You can't point to anything in which they have addressed that question.

My quick reading of it... I couldn't find anything in which they addressed that question.

And if that's so, what should we do?

Mr. Freedman: Well, as an... as an alternative, the Court could remand back to have the Sixth Circuit--

Chief Justice Rehnquist: Did you raise that argument before the Sixth Circuit, the one that you're making now?

Mr. Freedman: --With absolute certainty, Mr. Chief Justice, yes, because they asked the same questions.

They asked where did the error occur, and that the line of the questionings were almost... on that point was identical.

They asked questions where did the error come, and of course, it wasn't in the first trial.

The error occurred at the motion to vacate.

Justice Scalia: What if... what if Wesley comes in with a... with a motion to vacate now and... and he points to the inconsistency with the... with the Stumpf trial?

Would he also be entitled to get his sentence vacated because of the same inconsistency that you're pointing out?

Mr. Freedman: Well, he certainly wouldn't have the death sentence.

That was... is solely as to the guilt part of the case, Justice Scalia?

Justice Scalia: Yes.

Mr. Freedman: He might.

He might because the... the... I mean--

Justice Scalia: So a jury, having found both of them guilty beyond a reasonable doubt and possibly on a basis that... or not a jury but the judges and possibly on a basis that has nothing to do with whether they were the shooter, you think both of them are entitled to have the death sentence vacated.

I think that's extraordinary.

Mr. Freedman: --Well, in all due respect, only one has the sentence--

Justice Scalia: Which one?

I mean, doesn't Wesley have just as much of a complaint as your client does?

Mr. Freedman: --Not... not as to the death... not as to... not as to the death sentence, no.

Justice Scalia: Why?

Mr. Freedman: Why?

One, he didn't... let's assume arguendo that he received the death sentence.

He had an opportunity--

Justice O'Connor: I thought Wesley didn't receive a death sentence.

Mr. Freedman: --No, he did not.

That's what... but you--

Justice Scalia: No.

That's... that's my mistake.

Justice Souter: Okay.

He didn't receive the... the death penalty.

What would his argument be with respect to guilt or innocence?

It seems to me that the issue only goes to penalty.

Mr. Freedman: --There's still an issue out there because this is killing a witness.

As... he would have a tougher role.

I don't think Wesley would... would have much of a chance.

The... the version of Mr. Stumpf's facts, whether it's a difficult row to hoe is that he... he drops the gun.

That was one of the... and... and shortly leaves the scene after that.

So that he... there's no intent, notwithstanding Justice Scalia's position that you... attempt to shoot Mr. Stout, that he's automatically... the specific intent is inferred.

But it's not absolutely clear, leaving the scene, that the intent could be inferred to kill another witness.

Justice Souter: But that's Stumpf's case.

Mr. Freedman: Yes, that's correct.

Justice Souter: Yes.

So I mean--

Mr. Freedman: So I'm saying that he would not--

Justice Souter: --I don't see where Wesley--

Mr. Freedman: --No, Wesley would not have... Wesley would not have that scenario under--

Justice Souter: --So... so Wesley would have neither a... a due process claim with respect to sentence nor with respect to guilt.

Mr. Freedman: --That's correct.

That's correct.

Justice Ginsburg: But now your... your part about the guilt, the Sixth Circuit agreed with you because it vacated not only the sentence, but the conviction.

And what is your argument that the conviction is infirm?

Mr. Freedman: And... and what they... they deduced from that is that the... the evidence of the Wesley trial... their position is that... and the position that... that the prosecutor took and the evidence that Eastman took, that there would be no specific intent as to the killing of... of Mary Jane Stout inferred from the shooting of Norman Stout because he dropped the gun.

I mean, you don't... but there's no... in... in Ohio a plan is required.

There's no foreseeability or reckless disregard for the death... for the eligibility for the death penalty.

It's one of the few States.

Justice Souter: I... I thought the... the specific intent element would be satisfied if... if they, by plan, went to the scene with... with deadly weapons.

Mr. Freedman: I believe under Ohio law that that's not correct.

I mean, it's one of the few States.

And I believe even the cases that are cited by the State would infer that.

Justice Ginsburg: I thought the State argued that knowledge... there's this plan, and they had a common design to rob.

Is that right?

And then the State said that common design plus knowledge that an inherently dangerous instrument would be employed to perpetuate the felony or that the felony and its manner of accomplishment would be reasonably likely to produce death.

That's what the State argued was the law of Ohio.

Mr. Freedman: But I... I believe that they needed a plan for... for the killing of a witness.

They needed that plan at the time for killing the witness.

It's not enough just to plan the robbery for the specific intent.

And... and they... in the Wesley trial, I want to refer you to page--

Justice Ginsburg: Did... did any judge say that, any judge on the Sixth Circuit say that that was the Ohio law?

Mr. Freedman: --I believe so.

That's my reading of the Sixth Circuit opinion.

They said that there was an element of... of intent that was... I believe that's the... the way I interpret the holding.

I would like to refer you just to page 295 of the joint appendix, even the last sentence or so in the first paragraph.

They imply that in the Wesley trial, talking about the same scenario, that there's not necessarily a plan coming in to kill the witnesses.

There would have to be a plan while they're in the house.

And... and the scenario of Mr. Stumpf dropping the gun I believe is arguably that there's no specific intent.

I... I would just like to sum up and indicate that... that the State argued in both cases urging the death of two individuals based on killing the same person, and ultimately there was not adequate review in Mr. Stumpf's case indicating that he would have gotten the death penalty notwithstanding Eastman's testimony, notwithstanding their position that he would have gotten the death penalty as an aider and abetter, which is a rather rare circumstance not only in Ohio but also in this country.

Rebuttal of Douglas R. Cole

Chief Justice Rehnquist: Thank you, Mr. Freedman.

Mr. Cole, you have 3 minutes remaining.

Mr. Cole: Justice Ginsburg, to respond to your question, under Ohio law you do not need to... to plan to kill the witness in order to have specific intent for aggravated murder.

I would refer the Court to the In re Washington and State v. Scott cases that we cite in our brief that say that participation in an aggravated robbery where that's going to be done through force or violence or in a manner reasonably likely to result in death is sufficient to support a... an intent... a... an inference of specific intent.

So there's... there's no need to find that they planned to kill the witnesses.

If... if I heard Mr. Freedman correctly, he admitted that Wesley would not have a due process argument here because he said the fact finders were apprised of Mr. Stumpf's proceedings.

Well, exactly the same is true in Mr. Stumpf's case.

As soon as that testimony became available, as soon as Mr.... as the prosecutor had knowledge of Mr. Eastman's testimony, that testimony was then placed back in the record for further proceedings in the Stumpf matter.

The prosecutor made arguments, but I don't think that the Due Process Clause requires--

Justice Souter: You... you mean at the hearing on the motion to vacate.

Mr. Cole: --Hearing on the motion to vacate and further appellate review.

I don't think the Due Process Clause requires the State to admit the ultimate truth of everything that Mr. Eastman testified to at that other trial.

The question was did they have a good faith basis for putting him on, and they did.

And did they have a good faith basis then for arguing that notwithstanding what he said, that the conviction and the sentence in Mr. Stumpf's case were appropriate?

And I believe the record supports that they did have a good faith basis for making that argument.

If we look at the arguments they made, they were arguments in the nature of, look, there's this evidence in the record.

You may believe it, you may not.

Either way, Mr. Stumpf is correctly eligible for the death sentence under Ohio law and that sentence is appropriate.

And the courts found, based on that argument, that Mr. Stumpf had appropriately been sentenced to death.

This Court has noted that the principal function of habeas is to assure that no man has been incarcerated under a procedure which creates an impermissibly large risk that an innocent person will be convicted.

Well, we don't have that risk here.

Stumpf has knowingly and voluntarily pled guilty, removing any risk about that.

And if we look to this sentencing hearing, there's no risk that he received an impermissibly large sentence because the prosecutor made the evidence available, and Stumpf's counsel used that evidence and argued it, and the court simply rejected it.

If the Court has no further questions, I'll stop.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Cole.

The case is submitted.

Attribution:

The Oyez Project

Featured:

United States v. Dominguez Benitez - Oral Argument

Fri, 09 Jan 2009 14:49:10 +0000

Case:

United States v. Dominguez Benitez

Media File:

03-167_20040421-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Dan Himmelfarb

Chief Justice Rehnquist: We'll hear argument now in No. 03-167, United States v. Carlos Dominguez Benitez.

Mr. Himmelfarb.

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

This Court has consistently held in both harmless error and plain error cases that an error affects substantial rights if it affected the outcome of the district court proceeding.

Applying that principle to a violation of rule 11 at a guilty plea proceeding, 9 of the 12 courts of appeals that hear criminal cases have concluded that a rule 11 error affects substantial rights if it affected the defendant's decision to plead guilty, which means that the defendant would not have gone forward with his plea if the error had not occurred.

That standard is correct.

The Ninth Circuit standard which the...

Justice Stevens: May I just ask this one question?

Because I'm... I'm not at all sure of the... is it perfectly clear that the... in terms... effect of the decision necessarily is equated to the fact he would not have otherwise have pleaded guilty?

Mr. Himmelfarb: In the context of a guilty plea, I think it is, Justice Stevens.

That's the relevant decision.

This Court's cases have applied the harmless error and plain error effect on substantial rights element in a variety of circumstances: at a detention hearing, during the course of a grand jury proceeding, most frequently a trial, of course, and also at sentencing

Each of those four circumstances, the Court made clear that the relevant question was whether the effect of that particular proceeding would have been the same...

Justice Stevens: Well...

Mr. Himmelfarb: if the error had not been made.

Justice Souter: Except that we... I mean, the... the meaning of that term varies.

In... in some contexts, we say, well, it's... it's enough if... if confidence in... in that the result would have been the same has been shattered.

In... in the case at the other extreme with a case... we... I think that is strongest for you, we... we've said in the ineffective assistance of counsel context, yes, you've got to show that he wouldn't have pleaded guilty or he's got to show that he wouldn't have pleaded guilty otherwise.

And... and it seems to me that the... the issue here is, is this enough... is the context here enough like the context in ineffective assistance of counsel to... to put the heaviest burden on the petitioner, or is it... are there... are enough distinctions so that maybe the burden shouldn't be quite that heavy?

Mr. Himmelfarb: We think the... we think it's directly analogous to the ineffective assistance of counsel context.

In that context, you have a deficient performance by the defendant's lawyer in connection with advice about a guilty plea.

And this Court's decision in Hill v. Lockhart makes clear that the next step of the Strickland analysis, the prejudice analysis, is whether but for that deficient performance, the defendant would not have pleaded guilty and would have gone forward to trial.

Justice Scalia: All right.

Justice Souter: No.

Justice Scalia: Your... we...

Mr. Himmelfarb: We think the same rule applies here.

Justice Souter: Let me... let me suggest at least a reason why maybe it isn't.

I'd like your comment on it.

In... in the ineffective assistance of counsel context, one reason for putting a high... you know, the heaviest burden on the defendant is that it is so very difficult to police effective assistance as you go along.

The judge watching the... the plea hearing has no way of knowing what's going on or has gone on between the lawyer and... and the client.

Here, we're in a different position.

There... there are a couple of people in a position to... to avoid the kind of problem that we've got here.

One obviously is the Federal judge.

If he had a checklist in front of him, something like this wouldn't have happened.

The second is counsel for the Government.

The counsel for the Government can get up in a case like this and say, Judge, you forgot something, and avoid this problem.

So it may be that because there are easier ways to avoid this, the burden on the defendant shouldn't have to be so heavy.

Justice Scalia: What do you say to that?

Mr. Himmelfarb: Well, this Court's decision makes clear in Vonn that the defendant has a burden, of course, rejected the contention in that case that no matter when... regardless of the circumstances of when a rule 11 error occurs, the Government bears the burden of showing that there was no effect on substantial rights.

The holding of Vonn is that the defendant bears the burden.

The only question in this case is what that standard is, and we think again it's directly analogous to the ineffective assistance of counsel context.

Justice O'Connor: Well, you don't think that the standard for plain error that the Court spelled out in United States v. Olano provides the standard?

Mr. Himmelfarb: Justice O'Connor, that's exactly our position.

Our position is that a straightforward application of Olano...

Justice O'Connor: Well, if... if that's so, Olano's fourth prong, if you will, is that the error... asks whether the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

And I'm not sure that I understand, under your test, how that fourth prong would be applied or if it's still part of the test.

Mr. Himmelfarb: It certainly is, Justice O'Connor.

We make two alternative arguments, one under the third prong of the plain error rule, one under the fourth.

Our primary submission is that in order to satisfy the requirement of the plain error rule... in other words, in order to show an effect on substantial rights... that's right... a defendant has to show that the error affected his decision to plead guilty.

Our alternative argument is that the Court... even if the Ninth Circuit standard is correct so that a defendant would not have to show that the error affected his decision to plead guilty in order to show an effect on substantial rights and he could therefore satisfy the third requirement of the plain error rule, he can't satisfy the fourth requirement unless he makes that showing.

And we think that conclusion follows from this Court's decisions in Cotton and Johnson where the Court assumed, without deciding, that the failure to submit an element of the offense to the grand jury or the petit jury affected substantial rights, but held that the defendant could not satisfy the fourth requirement of the plain error rule because the error had no effect on the outcome of the grand jury proceeding or of the trial.

So we're making two alternative arguments here, one under the...

Justice Ginsburg: May I ask you a question about the practical aspect of it?

And you're asking the Court to choose... well, the plain error is what we're doing and how high a burden the defendant would have to meet.

But this relates to a question Justice Souter asked.

I was surprised, given that this was not a new district judge, that she didn't have a litany that would cover all the rule 11 elements.

And I was also surprised that the Assistant U.S. Attorney didn't say at the end of the colloquy, judge, you forgot to mention that this plea can't be withdrawn.

Is there a manual that judges follow?

Are U.S.... Assistant U.S. Attorneys instructed, when something is left out of rule 11, to remind the judge?

Mr. Himmelfarb: Justice Ginsburg, my understanding is that there is a bench book available to judges, and obviously there are a great many district judges in the United States district courts and some are going to be more meticulous than others.

Assistant U.S. Attorneys often or at least are supposed to bring checklists with them to a guilty plea proceeding so that they can ensure that rule 11 is strictly complied with.

Of course, a prosecutor has no more interest in litigating a rule 11 error on appeal than anybody else does.

So it's very much in the prosecutor's interest to try to ensure that there's strict compliance.

Vonn makes clear, though, that in the event that one of the... one of the advisements slips... and there was only one here that the district judge did not give... it's the defendant's burden to object and if he doesn't, he's in a plain error posture on appeal, not a harmless error posture.

Justice Scalia: Mr. Himmelfarb, is it... is it clear in this case that the defendant believed that he could withdraw his plea?

Do we know that?

Mr. Himmelfarb: We don't.

The record is silent on that question.

Justice Scalia: Do you think that... that a defendant making a guilty plea would normally believe that he could withdraw it when the Government has promised him nothing except that it would recommend to the judge a certain sentence?

Mr. Himmelfarb: Well, it depends, Justice Scalia.

In a case like this, we think a defendant would not reasonably be under that impression because in this case, this... this defendant... respondent was repeatedly advised that the judge was not bound by the guilty plea and that he would face a 10-year mandatory minimum sentence if the parties' recommendation was not followed.

Justice Scalia: If I was given all of that information, I... I certainly wouldn't leap to the conclusion that, well, if the judge doesn't accept it, I can withdraw the guilty plea.

I don't know why he would naturally believe that.

I would think he would naturally believe the opposite.

Mr. Himmelfarb: We agree, Justice Scalia, and that's why we think...

Chief Justice Rehnquist: Wasn't... wasn't that covered in... in the plea agreement itself which was translated into Spanish for him, specifically that he could not... he could not withdraw his plea if the judge did not accept the plea?

Mr. Himmelfarb: That... that's exactly right, Mr. Chief Justice.

Justice Stevens: Your basic point is that this part of the rule is pointless.

Mr. Himmelfarb: Not at all, Justice Stevens.

Justice Stevens: Well, I guess that's Justice Scalia's point.

Mr. Himmelfarb: No.

There may...

[Laughter]

Justice O'Connor: I'm sorry.

Mr. Himmelfarb: My point is that in a case like this where a defendant is advised that the judge is not bound by the parties' agreement, it's probably not reasonable for that defendant to assume that he can withdraw his plea if the judge doesn't follow the...

Justice Scalia: My point is not that it's pointless.

My point is that when it is omitted, it does not necessarily produce substantial injustice.

It's a good idea to give it, of course.

But in the absence of giving it, I would think that normally you'd think that he would assume that anyway.

Mr. Himmelfarb: That's exactly right.

That's our position, Justice Scalia.

Justice Stevens: But if that's right and I were a district judge, I could probably save time by just omitting this regularly then.

Mr. Himmelfarb: No, Justice Stevens, I don't think that's likely to happen.

District judges are generally quite conscientious about complying with rule 11.

Prosecutors are generally quite conscientious about making sure that district judges comply with rule 11.

Nobody has an interest in having appellate litigation over rule 11 errors.

Everyone has an interest... everyone has an interest in making sure that rule 11 is strictly complied with so that the judgment of conviction can be entered and people can move on to other business.

So I don't think...

Justice Scalia: Even... even respondent doesn't argue here that any omission from the rule 11 requirement produces an automatic reversal.

Does respondent argue that?

Mr. Himmelfarb: No.

My...

Justice Scalia: So, I mean, that's... that's not the theory here, that if you don't... if you don't produce an automatic reversal, people won't give the rule 11 requirements.

Mr. Himmelfarb: That's right.

The Ninth Circuit does not have a rule of automatic reversal.

The Ninth Circuit standard is if the error is not minor or technical and the defendant wasn't otherwise aware of the omitted information, he shows an effect on substantial rights.

Our position is that knowledge of the omitted information is a sufficient condition to defeat a claim that there was an effect on substantial rights, but it's not necessary.

Justice Kennedy: Now, is knowledge of requirement a wholly subjective test?

We... we want to know what this defendant thought.

Or is it what a reasonable person would have concluded based on all of the circumstances?

Mr. Himmelfarb: It's a subjective standard, Justice Kennedy.

In the context of a guilty plea, when the question is whether the error affected the defendant's decision to plead guilty, the relevant question is whether this particular defendant would have pled... would have gone to trial.

Justice Stevens: So you put him on the stand.

Justice Kennedy: You put him on the stand and...

Mr. Himmelfarb: No, you don't.

You can't because by definition in the plain error/ harmless error context, you're limited to the record on appeal.

Objective considerations are obviously relevant in making the subjective determination of whether this particular defendant would have pled guilty.

Justice Kennedy: Well, you're limited to the record on appeal.

Could there have been a hearing in the... in the district court on the rule 11...

Mr. Himmelfarb: There could, Justice Kennedy.

For example, if the defendant had moved to withdraw his plea after he pled but before sentencing, it might have been within the district court's discretion to hold a hearing and you could have had the defendant testify at that hearing.

Justice Kennedy: But after sentence, it's impossible for him to testify?

Mr. Himmelfarb: That's right.

Under... under rule 11, a defendant can move to withdraw his plea for any reason before it's accepted.

Justice Ginsburg: But he didn't do that.

This question wasn't raised until appeal... the appeal.

Chief Justice Rehnquist: He didn't say...

Mr. Himmelfarb: That's exactly right.

It wasn't raised at any point in the district court, Justice Ginsburg.

Justice Kennedy: But... but my question is in... in other cases it would not be possible to put him on the stand at any time after sentencing.

Mr. Himmelfarb: No.

After sentencing, the rule makes clear a defendant can't move to withdraw his plea.

The only way he can attack his plea is by direct appeal or a collateral attack.

But before sentencing it's...

Justice Kennedy: On collateral attack, could he take the stand?

Mr. Himmelfarb: Sure.

It would be within the discretion of the district judge and his willingness to testify.

Chief Justice Rehnquist: Under your...

Justice Kennedy: Can you...

Justice Scalia: Excuse me.

Chief Justice Rehnquist: Can you collaterally attack a plea before you appealed and sought to have it set aside?

Mr. Himmelfarb: No, Mr. Chief Justice.

There's... there's, of course, a requirement that you file a direct appeal.

Otherwise you will have procedurally defaulted.

I should also say that this Court held in Timmreck that a formal violation of rule 11, which is all that we have here, is not cognizable in a 2255 proceeding.

Justice Breyer: Normally... you may know... I'm just drawing on your background.

Normally when you say did it affect somebody's substantial rights, when I see those words, I think the judge did something to this person.

And when I say did it affect his substantial rights, I think, well, did it matter in terms of what the judge or the jury did to him.

Now, is that a correct way to think about it?

Are there other instances where substantial rights means something different than that?

Mr. Himmelfarb: In the ordinary context, the relevant decision-maker is, of course, the judge, and the...

Justice Breyer: No, I'm not talking about... I'm saying something happened to this human being who is there in court, and when I say did this affect his substantial rights, I usually ask myself did this error make a difference in terms of what happened to him.

That's how I... it's very colloquial, but that's the question I normally ask myself.

Now, maybe all these years I've been doing it wrong or maybe there's some circumstances where I should ask that question.

You know, like a death case, which is a horrible case, sometimes there's harmless error and usually the question there is did it matter in terms of his being sentenced to death.

Those come up a lot.

I'm just asking you a general question.

I don't have a point here.

I'm trying to figure out how best to think about this.

Mr. Himmelfarb: No.

We think your formulation is exactly the right way to think...

Justice Breyer: Fine.

If that is the correct formulation, can you think of other instances in the criminal law where substantial rights meant something other than this formulation?

Mr. Himmelfarb: I can.

The... an affect on substantial rights means that there's an affect on the outcome.

Justice Breyer: That's my question.

I'm asking it to inform myself and I have the same question for the other side too.

Mr. Himmelfarb: Let... let me qualify that... that answer if I could, Justice Breyer.

That is the general rule.

There are, of course, certain types of error, as this Court has made clear, which do not require a showing of...

Justice Breyer: Like structural error.

That's one kind of exception.

Mr. Himmelfarb: That's exactly right.

Justice Breyer: But I don't think we normally speak in terms of substantial rights in those cases.

Maybe we do.

Justice Scalia: I don't know.

Mr. Himmelfarb: Well, sometimes the question will be whether the third requirement of the plain error rule, which is a substantial rights requirement, has been affected.

Justice Breyer: All right.

So... so structural error cases are an instance where my colloquial question is not right and nobody claims here this is a structural error case.

Mr. Himmelfarb: We certainly don't, Justice Breyer.

I... I don't believe respondent does, and the court of appeals did not take that position either.

Justice Ginsburg: Mr. Himmelfarb, there's... there's another specific about this case that might have averted what happened.

The... the entire plea agreement was read to the defendant in translation because he didn't speak English.

And that was the day before.

If it had been the practice to give him a copy of the translation, instead of just having him hear it orally, then it would have... might better for him to read and we would have had more security that he knew.

Mr. Himmelfarb: Justice Ginsburg, I don't know as an empirical matter which is more likely to ensure that a defendant is aware of what's in the plea agreement, sitting down with a lawyer and a Spanish interpreter as happened here and having the three of them go over the plea agreement, having the Spanish interpreter translate it for the defendant in the presence of counsel so that the defendant can ask any questions of counsel that are necessary and counsel can answer them, on the one hand, or the suggestion which you just made.

Justice Ginsburg: But I meant both, that is, that there would be the written... written-out plea agreement, which if he could read English, he could have read, and then the lawyer and the translator go over that written document with him, that that I think would be more effective than just hearing it orally.

Mr. Himmelfarb: Again, I'm not sure whether that's true as an empirical matter.

As a legal matter, the question here is when a defendant has forfeited a claim of error and he has to show an effect on substantial rights on appeal, if you have...

Justice Ginsburg: But I didn't mean this to be legally dispositive.

It's in the same way... how could this be warded off so we don't get a Federal case out of these rule 11 slips.

Mr. Himmelfarb: Again, Justice Ginsburg, I... I don't think it's ordinarily the practice of U.S. Attorney's offices to provide Spanish translations of plea agreements to Spanish speakers who don't speak English.

It's always the practice, whether the translator is at... comes at the defendant's expense or the court's expense, for a translator to translate the plea agreement for the defendant in... in the presence of counsel.

I... I don't know what would be the source of any requirement for the Government to provide a Spanish...

Justice Ginsburg: I... I wasn't suggesting that... that it was a requirement.

May... may I ask just one more puzzling thing about this case, background of it?

The reason that the deal didn't... wasn't possible was that this man had three priors instead of everybody thought... well, at least the judge thought or the prosecutor thought, until the presentence report, there was only one.

But the defendant must have known how many priors he had.

Mr. Himmelfarb: That's right.

The defendant, of course, knew that he had three prior convictions and not just one.

I'm not sure what bearing that fact has on the plain error analysis in this case because it's not just the fact of the prior convictions that would have rendered this defendant ineligible for a sentence below the mandatory minimum.

There has to be a guidelines calculation and assignment of criminal history points to each conviction, and if you get above one criminal history point, you're not eligible for a sentence below the mandatory minimum.

So you would...

Chief Justice Rehnquist: Well, you might... you might say that the fact that the defendant must have known that he had three priors would have made him realize that the plea agreement probably wouldn't be accepted.

Mr. Himmelfarb: One could reasonably conclude that he should have had substantial doubt about whether he would have been eligible for the...

Justice Stevens: Are you assuming he understood the sentencing guidelines in that detail?

Mr. Himmelfarb: No.

That's...

Justice Kennedy: It'd be rather unusual.

Justice Stevens: The basic problem here is we're dealing with dumb defendants.

Ms Mossman: [Laughter]

Justice Stevens: That's the problem.

That's why you have to tell them twice.

Mr. Himmelfarb: Well, that's true, Justice Stevens.

Justice Scalia: Yes.

Mr. Himmelfarb: Rule 11 imposes a requirement on the district judge to advise the defendant of his rights.

Nobody disputes that that didn't happen here for one of the advisements and nobody disputes that there was therefore rule 11 error.

Nor does anybody dispute that it was a plain error.

But since defendant didn't object... respondent didn't object in the district court, we're in a plain error posture.

That is a difficult standard to meet.

He has to show not only that there's an error that's plain, but he has to satisfy these two other requirements that I'll mention.

Justice O'Connor: Why shouldn't it be as an objective test, do you think?

I don't know why you focus on... on something else.

I mean, can't we assess whether... in determining whether it affects substantial rights, how the evidence against the defendant was, what the benefits of the plea were, and what he was told in just objective terms?

Justice Kennedy: In other words, reasonable probability.

Chief Justice Rehnquist: Yes.

Justice O'Connor: I mean, why do you want to make it something else?

Mr. Himmelfarb: Justice O'Connor, it is absolutely the case that in undertaking this analysis, a court should and ordinarily will look at objective factors.

In most cases...

Justice O'Connor: I would think you would win under an objective test.

I don't know why you're trying to urge something else.

Mr. Himmelfarb: We think that... we agree that we win under either an objective or a subjective standard, given the strength of the case against respondent and given the fact that he received a substantial benefit from pleading.

We think that a... a subjective test is the appropriate one because this is not a situation like you have when there's trial error and you have to determine whether the jury objectively would have reached the same decision...

Justice Kennedy: But... but if you're doing a subjective test, you might as... as long as you're doing that, why not accept the Ninth Circuit test: did he know

Mr. Himmelfarb: Well, Justice Kennedy, we think that if he did knew... if he did know, that's a sufficient basis for rejecting his claim because if he knew, the fact that the judge didn't tell him a second time...

Justice Kennedy: No, no.

I... I thought that this was the Ninth Circuit test that you disagree with.

And my... my point is if you're going to go this objective route, you might as well ask the basic question as the Ninth Circuit did.

Mr. Himmelfarb: We... we have no problem with the question Ninth Circuit asks.

Our problem is that they stopped after they asked that question.

That should probably be the first question.

If there's evidence in the record that the defendant was otherwise aware of the omitted rule 11 information, it would be very difficult to say that he would have gone to trial if the judge had omitted to say something that he already knew.

That's why we think that's a sufficient...

Justice O'Connor: I still would like to understand why you think an objective test is not acceptable.

Mr. Himmelfarb: In... in the... when a defendant is confronted with a choice of pleading guilty or going to trial, he has... he, of course, has an absolute right to go to trial.

No matter how strong the evidence is against him, no matter what benefits he could get from pleading guilty, if he chooses, for whatever personal or idiosyncratic reason, to go to trial despite those things, he's got the right to do it.

That's why we think...

Justice Scalia: Maybe... maybe you think the courts would not... would not stand by an objective test in the situation where the facts are such that any intelligent defendant would have... would have made the plea even if he knew that it couldn't be revoked.

But this particular defendant, for whatever reason... and it's clear on the record he told his counsel or he left... left a note and said, well, there's no harm in making this plea because I can always withdraw it if the judge doesn't go along with the recommended sentence.

And in that situation, I think it's very hard for a court to say, oh, yes, a... since a reasonable defendant would... would have gone ahead anyway, this... this defendant who would not have gone ahead anyway must be held to his guilty plea.

Mr. Himmelfarb: I think that's right.

Let me... let me just add this point to what I've already said.

While the objective question of whether a reasonable defendant in the defendant's circumstances would have pleaded is not, we think, the correct analysis under the third component of the plain error rule, we do think it could be taken into account in connection with the fourth requirement, which is the discretionary component.

So, in other words, if you have a situation where a defendant for some idiosyncratic reason was intent on going to trial, even though it was essentially suicidal for him to do that, he might be able to satisfy the third requirement because it affected his decision to plead guilty, but a court could permissibly say, that doesn't serious affect the fairness, integrity, and public reputation of judicial proceedings because he undoubtedly would have been convicted if he had gone to trial and would have gotten a longer sentence.

I'd like to reserve the balance of my time for rebuttal.

Argument of Myra D Mossman

Chief Justice Rehnquist: Very well, Mr. Himmelfarb.

Ms. Mossman, we'll hear from you.

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

I have three points to make.

First, Olano created a framework that the lower courts have been consistently applying... applying in evaluating forfeited errors in a rule 11 context for 11 years.

Second, now having suffered an adverse ruling in a fact-specific case, the Government is urging this Court to adopt a strict, heavy burden, bright line, but-for prejudice test in every case that eliminates the lower court's flexibility.

Third, not only is the Government's test incorrect, but the Ninth Circuit cited and applied Olano and was consistent with Olano in Benitez.

Now, first, the Olano standard is a national standard under plain error review where an error affects the substantial rights.

And that means... generally is taken to mean it's prejudiced.

And in most cases prejudice means that it affects the outcome of the proceedings.

In Benitez, this is what the Ninth Circuit held as well because in Benitez, if it's not minor or technical, that means it's prejudicial.

Justice Breyer: Why?

But that's not so.

Has... has...

Chief Justice Rehnquist: I mean...

Mr. Mossman: Or consistently can be...

Justice Breyer: I read the Ninth Circuit.

It seemed to me we said just what you said we said.

What the Ninth Circuit says is Benitez must prove that the error was not minor or technical, which by the way, has nothing to do with it because a minor or technical error could well affect the outcome.

And then it says, and that he did not understand the rights at issue, which again is a necessary but not sufficient condition.

Now, where did they say anything about substantial rights?

They used those words, but if substantial rights means what I... we just discussed, which I'd like your view about, they never talked about substantial rights.

Mr. Mossman: They don't talk about substantial...

Justice Breyer: Well, didn't they say just what I read?

Mr. Mossman: Yes, but if...

Justice Breyer: So why isn't it like summary reverse?

We said this.

You say that.

Mr. Mossman: Well, it's... we... we see that not minor or technical means it has... it affected his substantial rights, and they actually cite to Olano.

Justice Breyer: Oh, I see.

Now, then what does affect substantial rights mean?

Now, we have an error here that's not minor or technical.

Mr. Mossman: Correct, and...

Justice Breyer: Now he, in fact... let's say second... did not understand that he had a right to withdraw.

Mr. Mossman: Correct.

Justice Breyer: Now, is that the end of the thing?

Mr. Mossman: No, they... then...

Justice Breyer: Ah, ah, where... that's... that's the point.

Where in this opinion does it say that's not the end of the matter?

Mr. Mossman: Well, they do go to fourth prong.

They...

Justice Breyer: No, no, not the fourth prong.

Where does it say that's not the end of the matter under the third prong?

You see, I could have a nontechnical matter.

Correct?

Mr. Mossman: Correct.

Justice Breyer: I could... it could have affected my understanding, but it might be that I would have pled guilty anyway.

Mr. Mossman: Well, I think...

Justice Breyer: That's what's worrying me.

Mr. Mossman: But...

Justice Breyer: And the most obvious case is where the judge gives me the sentence I hoped for.

Mr. Mossman: That is the obvious case, Justice Breyer, and that was Chan and they cite to that in Benitez where they got exactly the sentence that they bargained for.

Therefore, the error is not minor or technical.

Justice Breyer: Oh, I'm sorry.

A terribly minor, terribly important error, terribly important.

Indeed, the judge has a whooping cough fit and nothing comes out of his mouth, but he gives them the sentence he asks for.

Justice Kennedy: Okay?

Mr. Mossman: Yes.

Justice Breyer: What about that?

Mr. Mossman: Well, I think what's coupled here is that it has to be knowing.

There has to be a knowingness and a voluntariness.

And in that situation, if the... if the defendant knew that he was possibly... that the sentence that he bargained for was...

Justice Breyer: No.

The... he knew nothing.

The defendant new nothing.

It was a major error.

He just got what he asked for.

Mr. Mossman: We believe that is consistent.

He... he got what he... if the sentence is less than he... or got the sentence that he bargained for, where is the error?

Justice Breyer: Of course.

Mr. Mossman: But the...

Justice Breyer: Of course.

That's what's bothering me.

Mr. Mossman: Because we're...

Justice Breyer: If in fact the major error... and he did not understand it... made no difference to the outcome, then, says the Government, he shouldn't be able to appeal it.

And that's the problem.

As I read the Ninth Circuit, they didn't make that last statement.

Mr. Mossman: So if the...

Justice Breyer: And they want an... do you agree with them that they should have an opportunity to go back and to say, judge, we want this client also to be able to show it made no difference to the outcome?

If you agree with that, that's the end of the case I think.

Mr. Mossman: Justice Breyer, if they... if it's a major rule 11 error, it would not be minor or technical.

The analysis would... would address that fact.

Chief Justice Rehnquist: Well, how... how do you know, just from reading rule 11, which errors are minor and technical and which aren't?

Mr. Mossman: We don't believe all errors in rule 11...

Chief Justice Rehnquist: How do you... how do you... what's your standard for telling the difference?

Mr. Mossman: Well, we think... Congress has enacted this and the full panoply of errors...

Justice O'Connor: Panoply.

Mr. Mossman: of rule 11 advisements are important, and none them can be considered minor or technical...

Justice O'Connor: So...

Mr. Mossman: in and of themselves.

Chief Justice Rehnquist: But just a moment ago, you said not every rule 11 violation is necessarily not minor or technical.

You say it's... you... I thought you intimated some of the could be.

Mr. Mossman: It's part of the analysis.

I think you have to complete the analysis.

Chief Justice Rehnquist: Well, but I'm trying to get you to answer a rather specific question.

How do you define minor or technical?

Mr. Mossman: Well, I think that was brought out in actually the advisory committee notes.

So, for instance, if the... if the judge failed to advise the defendant that if he lies on the stand, he'd be subjected to perjury charges.

That's considered not a minor or... that's considered basically a minor or technical advisement.

Also, if there was... the judge failed to cite to an elements of the offense, but the defendant demonstrated that he specifically knew about that, that would not be considered minor or technical.

If the judge misstates a... the maximum sentence, but the defendant receives a sentence that's substantially lower, that was considered under the advisory committee notes basically...

Chief Justice Rehnquist: Did the... did the advisory committee purport to cover all possible minor or technical errors?

Mr. Mossman: They were just giving... it was illustrative I believe.

Justice O'Connor: Examples.

Mr. Mossman: Yes.

Justice Ginsburg: In... in assessing how weighty this particular lapse is, should we take into account that as far as I know, this defendant has never said in the district court or on appeal that he indeed wants to go to trial.

Mr. Mossman: It's our position that I wouldn't be here if he didn't want his plea vacated.

Justice Ginsburg: But he... on... on... the plea vacated is one thing.

Mr. Mossman: Well, we...

Justice Ginsburg: Because then you have... given that he has three priors, his sentence... he was sentenced at the mandatory minimum.

How much better could he do on a resentencing?

So it's got to be he wants to go to a trial because do you agree that if we... if we just say new sentencing, he couldn't do any better given...

Mr. Mossman: Justice Ginsburg, it's our position that this particular defendant at every single proceeding, he... he expressed his dissatisfaction with his counsel, and the respondent's second letter to the court, which is at the joint appendix, number 96, was exactly... could be construed, because it was a pro se filing, as a motion to withdraw.

He asked for new counsel to look at his case anew.

Justice Ginsburg: But that's not the question I asked you.

I asked did he ever say at any stage, judge, I'd like to have a trial.

I want to plead not guilty.

Mr. Mossman: Justice Ginsburg, after the conference on the substitution of hearing, a sentencing date was... was set, and this particular defendant did not object to the... to a trial date... excuse me... a trial date was set, and this particular defendant did not object.

His attorney made some comments about maybe it's not necessary.

Justice Ginsburg: It's not... one thing not to object to a setting of a trial date, but did this man ever say I want to exercise my right to trial by jury?

Mr. Mossman: His first statement to the court at that substitution of... of counsel hearing was at no time have I decided to go to trial.

But that's not conclusive.

He needed more...

Justice Ginsburg: I thought he was stronger than that.

I thought... thought he had said at one point I don't want to go to trial.

Mr. Mossman: He never said that specifically or definitively.

He said at no time have I decided not...

Justice Ginsburg: But in any case, if he... if... but his concern is that his substantial rights or... have been violated.

And the possible effect on the outcome is relevant.

And my question is how could the outcome be affected if he got the mandatory minimum?

He got the lowest sentence that the law allowed the judge to impose.

So unless he wants to go to trial, he isn't harmed by what happened.

And so I'm asking if there's any stage where he said, I want to go to trial.

Mr. Mossman: This particular defendant made requests of his attorney that were not brought to the court's attention.

He acted pro se in... in three instances.

We... the record is actually void to know if he... and he was actually silenced when he wanted to ask this... the judge questions at his change of plea hearing.

He said I was asked... I wanted to ask the judge questions and I was silenced.

So the record is actually void specifically to answer your question.

We don't...

Justice Scalia: What was... what was the evidence in the case?

What was the evidence against him?

What... what did the Government have?

Mr. Mossman: Basically his own confession and two co-defendants.

He was caught by... basically the deal went down through a confidential informant.

Justice Scalia: Would... would anybody in his right mind have wanted to go to trial?

Mr. Mossman: In our opening brief...

Justice Scalia: And risk getting more than the mandatory minimum?

Mr. Mossman: In our opening brief, we completely briefed out the defense of entrapment, and this is brought out through the... the language of this defendant through the three letters that were submitted to the court through his own pro se actions.

We believe that he had a possible defense of entrapment.

I was not his trial attorney.

So...

Justice Ginsburg: But you... you have looked at the cases on entrapment.

Mr. Mossman: Yes.

Justice Ginsburg: And if you've got a predisposition, you don't have much of a prayer on a entrapment claim.

Justice Scalia: And he had three priors.

Were... were the three priors of the same... same line of commerce?

Mr. Mossman: No, they were not.

No, they... they were not, Justice Scalia.

Justice Kennedy: If... if you were to prevail and he were to have a trial and be convicted, could he get a more lengthy sentence or would that raise problems of vindictive prosecution?

Would failure to accept responsibility be a ground for an increase?

Mr. Mossman: I don't think that would be fair.

He has a fundamental right to go to trial.

Justice Scalia: That's not...

Mr. Mossman: Also, the...

Justice Kennedy: My question is can he get... if he gets a new trial, can he get an increased sentence?

Mr. Mossman: It's possible, but... it's possible, Your... Justice Kennedy.

Justice Kennedy: There's... there's no vindictive prosecution problem?

Mr. Mossman: There possibly is.

I mean, I... he would not get the acceptance of responsibility points, but that... but the acceptance of responsibility points doesn't make the... the bottom line here because of the mandatory minimum.

So he still would be looking at a 10-year mandatory minimum, even if he went to trial, and often defendants that go to trial on these drug convictions do get the mandatory minimum, irregardless if they have gone to trial or... and even irregardless if they don't get the acceptance of responsibility points.

Justice Kennedy: Let me... let me ask you this question.

You argue for a subjective test in a context in which the defendant can't take the stand to say what his understanding was.

That doesn't make a lot of sense to me.

Mr. Mossman: Well, defendants plead guilty for all types of reasons.

We don't know what's in the mind of defendants.

Justice Kennedy: No, no.

But you're saying that you want to subjective test.

You want... you want to defend the Ninth Circuit which said the question is whether or not he knew that he had this specific burden, that he was waiving the specific right the minute he entered the plea.

And you want a... a test to say that he didn't, in fact, know that.

And yet, we can't put him on the stand.

That... that seems to me an odd test.

Mr. Mossman: Well...

Justice Kennedy: An odd... an odd way to run the system.

Mr. Mossman: I think it's important to see if the... this implicates the constitutional principles under the Due Process Clause.

It has to be a knowing and voluntary plea.

That is a subjective test.

That's sort of built into the rule 11...

Chief Justice Rehnquist: But the Ninth Circuit didn't follow... didn't find that his plea was involuntary in a constitutional sense.

Mr. Mossman: Excuse me, Chief... Mr. Chief Justice.

They did under the fourth prong of Olano.

They... the actual citation would have been he did not understand the... the consequences of his plea, which is therefore not voluntary.

Chief Justice Rehnquist: Did... did they say it was a constitutionally invalid plea?

Mr. Mossman: They cited to Graibe.

Chief Justice Rehnquist: Ms. Mossman, you've been asked questions by several different members of the Court and you don't seem to really respond to the questions.

I'm asking you a very specific question now.

Mr. Mossman: Yes, Your Honor.

They cited to Graibe with cites to the Constitution.

Justice Breyer: I'm rather confused because are... where... there... there are two kinds of questions we've been discussing.

One is whether in fact, if he had been told specifically, what he was supposed to be told, he would then have withdrawn his guilty plea.

That's question one.

And most of what we've been talking about is that.

But I thought we're actually here to ask a different question and the different question is I thought the Ninth Circuit... and I did think that from reading its opinion... said what we've just been discussing has nothing to do with the matter.

Mr. Mossman: Yes.

Justice Breyer: All that... all that the person has to show is that he didn't understand his rights.

Now, what do you think about that question?

Mr. Mossman: I think, Justice Breyer...

Justice Breyer: So let's assume... it's absolutely clear.

They can come in with 52 bishops who are prepared to swear that if he had understood everything perfectly, he nonetheless would have gone ahead and pled guilty.

But it's also clear he did not understand his rights.

Okay?

Mr. Mossman: Yes.

Justice Breyer: What's supposed to happen?

Mr. Mossman: If he... is he alleging a rule 11 violation?

Justice Breyer: Oh, there... look, what happened was the judge never told him that you're stuck with your plea if I don't give you what you think you're going to get.

He never told him that.

It's clear in rule 11 he was supposed to.

And now, in addition, we know for sure that this person didn't understand that.

But we also know for sure it made not one whit of difference to his plea.

What's supposed to happen?

Mr. Mossman: Justice Breyer, this is... I believe you're talking about a motivated pleader, a pleader that was...

Justice Breyer: I'm talking what I think is about this case.

Mr. Mossman: This case.

Justice Breyer: Yes.

I think as it's presented in the questions presented and in the opinion that was written by the Ninth Circuit.

Now, I might be wrong and you could explain to me why I'm not.

But... but in any case, if you think that might be this case that's presented here, I... in the Ninth Circuit opinion, I'd... I'd like an answer or your best answer.

Mr. Mossman: I... Justice, if I can answer your question, it's the... a defendant that's caught in the justice... a criminal justice labyrinth and he... he doesn't understand, he doesn't understand the language, he's not confident in his counsel, and he believes he can withdraw his plea.

Is that correct?

Justice Breyer: Yes.

But in fact, we know he never would have.

We know it for sure.

Mr. Mossman: But he... he should...

Justice Breyer: He's written secret letters to his relations...

Ms Mossman: [Laughter]

Justice Breyer: and whatever.

Do it in any sort you want, but... but I mean, that's... that's a little bit of a technical matter here.

But I did think in reading the Ninth Circuit opinion and reading the Government's brief, that that's what they're worried about, that there could be cases where he does not understand the nature of that rule 11 right, but nonetheless it makes no difference to his decision to plead guilty.

So that... that's a bit of a technical point here, I agree.

But as I read the Ninth Circuit, I thought, well, that's what's going on in this case.

Now, you could explain to me, if you want, that I'm completely out to lunch, so to speak.

Mr. Mossman: Well, Justice Breyer, if he was motivated to plead guilty and there was an error in the rule 11 colloquy and he had the opportunity to replead, he could replead to another type of plea agreement, a C plea agreement.

He could ask for different provisions within that... that plea agreement, for instance, less supervised release.

He could ask for a type C plea agreement.

Justice Scalia: Why... why would they give him a better deal the second time around?

I mean, they'd say, you know, okay, we forgot to tell you that you couldn't withdraw it.

We now tell you you can't withdraw it.

And we offer you the same deal we offered you last time.

Why... why would he get a better deal?

Mr. Mossman: Well, he would... if he's motivated to plea...

Justice Scalia: In fact, they might... they might be mad at him for having backed out and... and not give him as good a deal.

But I can't imagine that he'd... he'd get a better deal the second time around.

Mr. Mossman: Justice Scalia, I believe he would have an opportunity to renegotiate or he could be repleading to the... and have confidence in the process.

Justice Ginsburg: What leverage does he have?

What leverage does he have when he's face with a mandatory minimum that he can't escape from and that's what he's got?

I... I can't... could you describe for this defendant what that better deal would be?

Mr. Mossman: Justice Ginsburg, it possibly could be less time on supervised release, less time... or... or actually a type C plea agreement instead of the type plea agreement.

You're correct in saying they might not offer him that type, but 95 percent of criminal... Federal criminal convictions go by way of guilty pleas.

So they're going to offer him something.

Justice Ginsburg: But how could... could he escape from the mandatory minimum in any way other than what they thought might work here, this so-called safety valve?

Mr. Mossman: The mandatory minimum just becomes the bottom line then.

Justice Ginsburg: And that's what he got, and that's why I can't understand any better deal that this defendant might have received.

Mr. Mossman: Well, Justice Ginsburg, he could have confidence in the plea proceeding if it was... if he was given the full panoply of his...

Justice Ginsburg: You'd do it all over again with the same bottom line, but he's going to feel better about it the second time?

Mr. Mossman: Possibly, yes.

I mean, maybe that means something to this motivated pleader.

Justice Ginsburg: Well, I'd like to ask you a question that I asked Mr. Himmelfarb and that it seemed puzzling to me that the safety valve which everyone hoped would allow a sentence below the mandatory minimum could never work from day one because he had two additional prior offenses.

Now, if anyone knew about those priors, which were under a different name, which is why they weren't found immediately, certainly the defendant knew.

Mr. Mossman: Yes, Justice Ginsburg, the defendant knew, but it was confirmed on the record by the district court judge that he actually fully disclosed to his attorney his priors.

This was brought out in the record at the sentencing hearing, and the judge confirmed this.

And so to talk about...

Justice Ginsburg: So his... his attorney knew that he was disqualified for this plea?

Mr. Mossman: This... it was confirmed.

The defendant said I completely disclosed everything to my attorney.

I... I don't understand what's going on.

The points weren't explained to me.

The safety valve wasn't explained to me.

This was brought out in the sentencing transcript that... that his priors were confirmed.

Justice Ginsburg: That they were confirmed, but at what...

Mr. Mossman: He exposed...

Justice Ginsburg: at what point in time?

Mr. Mossman: He exposed his prior convictions to his attorney.

This is what brought this... Mr. Benitez to confusion, and this was articulated in... in the sentencing transcript.

Justice Ginsburg: Which we don't have or do we have it?

Mr. Mossman: Yes, you do.

The sentencing transcript is at joint appendix 104.

Justice Ginsburg: And could... could you point to that place where it says that before he made this deal, which invoked the safety valve, he had told his counsel that I have three...

Mr. Mossman: It's at... Justice Ginsburg, it's at page 109.

If I may read for the Court.

Justice O'Connor: Yes.

Mr. Mossman: The Defendant: I never felt that I had the proper representation, the way it should have been in my case

From the beginning, I never had any knowledge about the points of responsibility, the safety valve, or anything like that.

I honestly, from the beginning, I accepted through my... responsibility through my attorney, but he never paid any attention to me, what I had told him about the problem that I had.

I told him from the beginning that I had a problem, that I was attending the program.

And at the end, he told me that I... allegedly that I had never told him, that I had never notified him of it.

I never hid anything in my case about the things that I have done.

Everything I said... I have said... everything I said... I have said has always been the truth and the reasons why I did it.

And I have always asked for another chance.

I've always asked him for an opportunity to meet with the government and he never wanted me to do that.

Justice Ginsburg: I don't see where he said, I told my lawyer that I had three prior convictions.

Mr. Mossman: He's trying to say, Justice Ginsburg, that I never hid anything and then... from my attorney about this case.

And then the... the judge goes on to question him.

Justice Ginsburg: Well, that's all right.

I don't want to intrude on... on your time.

Mr. Mossman: It's... I... I think it's on page 110.

So what you're... the Court: So what you're indicating you believe everyone knew about your criminal history

Is that what you're saying?

The Defendant: Well, from the very beginning when he went... when he came to see me, I explained it to him

The Court: I understand

So what you're indicating to me is that you believe from the beginning you had disclosed that you had a criminal record.

Is that right?

The Defendant: Yes

So he...

Justice Breyer: And the trial judge told him, you know, if you don't qualify, I might give you 10 years.

Do you understand that?

Justice O'Connor: And he says, yes.

Mr. Mossman: Yes.

Justice Breyer: And he says, knowing you have a mandatory minimum, I have to give you 10 years.

Do you still want to go forward with your plea?

He says, yes.

Mr. Mossman: Yes, correct, but this...

Justice Breyer: So it's pretty hard to argue that... I mean... go ahead.

Mr. Mossman: Justice Breyer, but this defendant... it's not clear that he did not know that he could not withdraw his plea.

He was under the impression, which is common sense impression, that he... if... if he doesn't get the sentence that he... that he asked for, he could withdraw his plea.

Chief Justice Rehnquist: Well, how... how could he have had that when the thing in the plea agreement itself was explained to him in Spanish saying that he couldn't?

Mr. Mossman: Mr. Chief Justice, our contention is that the... the fact that the plea agreement wasn't in Spanish is fatal here because his attorney couldn't speak Spanish.

Chief Justice Rehnquist: Well, but there was an interpreter there.

Mr. Mossman: But his... his attorney didn't... if his attorney couldn't speak Spanish, he doesn't know exactly what the interpreter is saying.

Chief Justice Rehnquist: Well, the interpreter can presumably speak English.

Mr. Mossman: The... well, there was a contention here between the defendant and his counsel in numerous instances before the court.

He expressed to the court that he couldn't communicate with his attorney and the prosecution knew about this.

They also characterized the case as... under paralysis, and yet they still gave this defendant...

Justice Scalia: This is new to me.

I... I didn't see any... any indication in your briefs or in the record that he claims he was never told by the interpreter.

I thought it was... I thought it was common ground that the interpreter had correctly explained the written plea agreement to him.

You're now saying that he contends that he was deceived as to the meaning of the plea agreement?

Mr. Mossman: No, Justice Scalia, we're not contending that, but we agree with the Ninth Circuit that the plea agreement in and of itself in... in this case is not conclusive of understanding.

Justice Breyer: Because?

Justice Stevens: Because?

Justice Breyer: Because the plea agreement was read to him in Spanish.

Is that right?

Mr. Mossman: That's part of it, Justice Breyer, yes.

Justice Ginsburg: That is right.

Mr. Mossman: Yes, but also...

Justice Breyer: All right.

The plea... so he hears in Spanish someone read to him the words, you cannot withdraw your plea agreement... cannot withdraw if they don't accept it.

And that's conceded in this case.

Justice Stevens: Is that right?

Mr. Mossman: Yes, it... this was...

Justice Ginsburg: Okay.

Justice Breyer: Then afterwards the judge tells him, in addition, if... has anyone explained to you that... do you understand that if you... that if you don't qualify for the safety valve, you go for 10 years.

Yes.

Has anyone promised you you will qualify for the safety valve?

Justice Souter: No.

Justice Breyer: So you realize you could get 10 years.

Yes.

All right?

Knowing that, you still want to go ahead with your guilty plea?

Chief Justice Rehnquist: Yes.

Mr. Mossman: Our... Justice Breyer, our position is consistent with the Ninth Circuit that he was under an expectation, a highly... a highly... high expectation that he would... would get the safety valve, and like the Ninth Circuit said, he had no incentive to read or double check the provisions within the plea agreement himself.

And this... this...

Justice Ginsburg: I thought one... one of your points was that this was a rather long agreement and this was paragraph 19.

Mr. Mossman: Yes, Justice Ginsburg, that was going to be my next point.

This provision was buried in the plea agreement and one doesn't know, because his counsel couldn't... doesn't speak Spanish.

If he... if the... if the interpreter inadvertently misstated that provision...

Justice Ginsburg: I... I didn't know that you were claiming that this hadn't been an accurate translation.

Mr. Mossman: We...

Justice Ginsburg: I thought your... your point was that it was a lot to absorb without having a written copy to follow.

Mr. Mossman: In our... Justice Ginsburg, in our opposition to the petition for writ of certiorari, we... we claimed that that point, that... that we have no certainty because there was not a transcript of the Spanish interpretation.

Chief Justice Rehnquist: Did you claim that before the Ninth Circuit?

Mr. Mossman: Yes, Mr. Chief Justice.

Chief Justice Rehnquist: Did the Ninth... did the opinion reflect that at all in the Ninth Circuit?

Mr. Mossman: Yes.

Chief Justice Rehnquist: That... that you said that it was a not a correct translation?

Mr. Mossman: They... yes...

Chief Justice Rehnquist: Did it or did it not?

Mr. Mossman: Yes.

Justice Scalia: Whereabouts?

Mr. Mossman: I can read... excuse me, if I may correct myself, Mr. Chief Justice.

Justice Ginsburg: Yes, please do.

Mr. Mossman: They didn't say that it was not a correct translation, but they did hold it as not conclusive.

And they state that in their decision when they say that Mr....

Chief Justice Rehnquist: Well, finish.

Go ahead.

Finish the rest of your argument.

Mr. Mossman: Just move on?

Chief Justice Rehnquist: Yes, please.

Mr. Mossman: Okay.

I'd just like to say that the Government's burden is... the Government's test, the prejudice test, the but-for test, is asking this defendant to go back in time and to prove a counter-factual.

It's not in this record, that if not for the error, he would not have pled guilty.

That's a very heavy burden here.

And we believe it emasculates the knowing requirements and makes awareness of the consequences of the plea irrelevant.

And the... a defendant, if he does not understand the scope of the prosecution's promise, he cannot evaluate the risks inherent in the type of plea agreement that he's signing.

We think that's critical.

The Ninth Circuit agreed that... that the rule 11(e)(2) warning and the type of plea agreement that this particular defendant entered into is highly critical and affords a higher risk to this defendant because it couldn't withdraw.

And it's counterintuitive to enter into an agreement when you understand that one party could withdraw, to think that you can't.

That's why the Congress has asked... has asked that this warning be expressly made in the rule 11 colloquy, that if we... if I... I... I'm not bound by the recommendation.

The judge has said I'm not bound by the recommendations, but you cannot withdraw if I do not give you the sentence that you bargained for because that's a counterintuitive understanding.

I believe Justice Scalia was getting at this when he talked to Mr. Himmelfarb.

And in closing, I'd just like to say this Court should adhere to the Olano prejudice test and reject the Government's invitation to adopt a but-for, highly prejudiced, highly burden... excuse me... strict bright line ruling test.

And this Court should affirm the Ninth Circuit's result, but if they do not...

Rebuttal of Dan Himmelfarb

Chief Justice Rehnquist: Thank you, Ms. Mossman.

Mr. Himmelfarb, you have 5 minutes remaining.

Mr. Himmelfarb: Unless there are further questions, we'll waive rebuttal.

Justice Kennedy: Well, I do have a question.

Justice Breyer: I... I think that her strongest point there is that he said in the later sentencing hearing that he told his lawyer about the priors.

Now, if that's true, the lawyer would have known immediately he couldn't qualify for the safety valve and would have told him this whole agreement is a joke because the judge doesn't have the power to give you anything less than 10 years.

So if... if that's true, she must have some kind of a claim.

Mr. Himmelfarb: He may have an ineffective assistance of counsel claim...

Justice Scalia: An ineffective assistance claim.

Mr. Himmelfarb: Justice Breyer, which he would be... which he would have to raise in a 2255 proceeding.

But the plain error rule should not be used to deal with that type of problem.

Chief Justice Rehnquist: Thank you, Mr. Himmelfarb.

The case is submitted.

Attribution:

The Oyez Project

Featured:

United States v. Ruiz - Oral Argument

Fri, 09 Jan 2009 14:50:22 +0000

Case:

United States v. Ruiz

Media File:

01-595_20020424-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF THEODORE B. OLSON ON BEHALF OF THE PETITIONER

Chief Justice Rehnquist: We'll hear... we'll hear argument next in No. 01-595, the United States against Ruiz.

General Olson.

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

The Ninth Circuit has created a new constitutional rule for guilty pleas that is neither required by the Constitution nor warranted by this Court's previous decisions.

Its inevitable effect would be to complicate and expose to collateral attack confessions of guilt which... which account for approximately 95 percent of all convictions in the Federal system and to stifle the market for plea bargains, which this Court has described as an essential component of the administration of justice.

The Ninth Circuit held that an accused cannot enter a valid guilty plea unless he is first given all evidence in the prosecutor's possession which would have a reasonable probability of discouraging him from pleading guilty.

The Ninth Circuit's rule, new rule, is not a logical extension of the Brady... Brady v. Maryland, which is premised on concern over the constitutional fairness of criminal trials.

Brady and its progeny require disclosure only when necessary to ensure a fair trial.

In fact, in Brady itself, the Court was explicit to point out that it... that decision was premised on the avoidance of an unfair trial to the accused.

The subsequent cases, which have expanded upon or interpreted or explained Brady, have been even more specific with respect to the limitations on the scope of Brady.

In U.S. v. Agurs, the Court said the prosecutor will not have violated his constitutional duty unless his omission is of sufficient significance to result in the denial of a fair trial.

Something similar was said in U.S. v. Bagley.

Brady's purpose is not to displace the adversary system as the primary means by which truth is uncovered.

If it did not deprive a defendant of a fair trial, there is no constitutional violation.

Unidentified Justice: Can we get to your main argument about Brady, that is, Brady in all its aspects is a trial right, not a pretrial right, in view of the plea agreement in this case, which represents that you have already turned over the prime Brady material and the only question is the impeaching material?

Mr. Olson: Yes, Justice Ginsburg.

The agreement to which Justice Ginsburg is referring is set out... the two paragraphs of that agreement--

Unidentified Justice: 45a and 46a of the petition for cert.--

Mr. Olson: --Yes, and I also have it on... on page 12 of the joint appendix.

Unidentified Justice: --What... what--

Mr. Olson: Page 12 of the joint appendix.

It's the--

Unidentified Justice: --the petition.

Mr. Olson: --It's... it's on page 14a of the petition... of the appendix to the petition for certiorari.

Unidentified Justice: It's the Government's representation that any information establishing the factual innocence of the defendant known to the prosecutor has been turned over to the defendant.

And so my question is, isn't that, at least in this case, a moot issue?

You do have the question about the impeaching material.

Mr. Olson: The answer to that, Justice Ginsburg, is that both in the Sanchez decision and in this case, the Ruiz decision, the Ninth Circuit went further and made it clear that it was applying the rule that it applied in this case to all exculpatory material which, if known to the defendant, might cause the defendant not to plead guilty.

Now, the undertaking that was made in the particular proposed agreement here went a little bit further in the direction of the defendant, which often happens.

Prosecutors frequently will decide, for one reason or another, to give exculpatory information of some sort to a defendant.

But the Ninth Circuit went further than that and made it clear that the rule that it was enunciating applied to all exculpatory material, including impeachment material, and that is the rule that's going to be applicable in the Ninth Circuit.

So, even if this Court determined to limit its decision to the... the narrower scope, as articulated in the second paragraph of that proposed agreement, we'd be back here next year because it's quite clear what the Ninth Circuit intends to do with its rule.

Unidentified Justice: I... I don't--

--The statement referred to on page 14a, the Government represents... that... that was not pursuant to any court order, I take it, the Government turning that over?

Mr. Olson: No, it was not, Mr. Chief Justice.

This was a... simply a... a draft agreement which was, in fact, prepared in response... as a result of and in response to the earlier Sanchez decision, which... which the Ninth Circuit had articulated.

This was an effort by the prosecutor--

Unidentified Justice: I was... I was going to ask why... why is that second paragraph there?

It wouldn't have occurred to me to--

Mr. Olson: --It's... it's not in the record, Justice Scalia, but it's my understanding that it's something that is... is developed particularly to deal with the Sanchez case which the Ninth Circuit had already decided, and the presumption that the Ninth... the Ninth Circuit's Sanchez decision went so far and not as far as the... that that covered the impeachment material, but not other exculpatory material in the reverse.

So, however inartful this is, it was not in response, Mr. Chief Justice, to a court order or any other legal requirement, nor does it purport to articulate what the law is.

It purports to undertake what the prosecutor voluntarily was willing to do with respect to this particular form of plea--

Unidentified Justice: --Has this been used throughout the country--

Mr. Olson: --No.

Unidentified Justice: --or just--

Mr. Olson: This is... this was developed just in the San Diego... the Southern District of California, although other versions in other places, but there's no standard national form for plea agreements.

Unidentified Justice: --I... I know what you'd like is that we reach the question of this impeachment material and say there is no such right in a... in a plea agreement context.

But how would I even get there?

They only get an appeal here if there's a violation of law.

I never heard of a violation of law consisting of a judge refusing to depart.

And then assuming that there is some violation of law in his refusal to depart, which I thought was discretionary, how could he possibly depart?

And this is important to you.

Because I don't see at the moment how it would ever be a justification to depart, that a defendant has entered into this program.

I mean, I can't find anything in the guidelines where it says

"you can depart for a reason such as."

and then fill in the content of the program to get a two-level departure.

So, how... how do we get to your issue and what do I do about those two things which seem tremendous blocks?

Mr. Olson: The Ninth Circuit... let me answer the jurisdictional point first.

The Ninth Circuit perceived that it had jurisdiction under 18 U.S.C. 3742(a)(1).

Unidentified Justice: That's violation of law.

Mr. Olson: A... that the sentence was imposed or the--

Unidentified Justice: Yes, in violation of law.

So, I would ask them.

I'd say, what law?

Mr. Olson: --And... and that the Ninth Circuit perceived that the district court felt that it was barred by law from departing--

Unidentified Justice: There isn't much I can find in this record that says that.

Mr. Olson: --And... and that the Ninth Circuit felt that because this was a constitutional right that the defendant was... had that was being withheld from the defendant because of the... of the circumstances of this case, that the... the district court erroneously presumed that it was prevented from going in a... in a direction that the Ninth Circuit felt that it could go.

And I think that then ties in with your second... your second question with respect to the sentencing guidelines and section 5K2.

The... the court felt... the Ninth Circuit felt... and it's not very clear, but... and... and the Government is not objecting to the... the way the Ninth Circuit exercised jurisdiction at this point and is not opposing the court's decision with respect to jurisdiction at this point.

The Ninth Circuit felt that under section 5K2 of the sentencing guidelines, this would be a... mitigate... the... the entry into the so-called fast track program was a mitigating circumstance of a kind or a degree not adequately taken into account by the guidelines in formulating the guidelines.

It should result in a sentence different--

Unidentified Justice: Those are supposed to be individual things.

I mean, in other words--

Mr. Olson: --Well, but... yes.

Unidentified Justice: --I... I see... normally you could say, okay, the Government doesn't oppose it.

We'll get to the main issue.

But these look like tremendous jurisdictional blocks to me.

Mr. Olson: It... it... I think the answer to that latter point with respect to the individual consideration is covered by the fact that this particular program, under the circumstances of this district, are... they may be... it may be frequently occurring, but it's individualistic in the sense that entering into this program alleviates a substantial amount of work and... and provides a substantial benefit to the prosecutor in that district without which the prosecutor may not be able to enforce the law on all of the responsibilities of the law.

This is one of the most busy districts of the United States because of the tremendous number of narcotics crimes coming in across the border, multiplied in a sense by the number of immigration violations that take place.

So that this was an individualized circumstance in that district.

Now, one could quibble about the appropriateness of that, but that's how the Ninth Circuit perceived it.

It perceived that it had jurisdiction on that basis, and we're not objecting to it.

It seems clear that not only, therefore, that not... that this right is not required by or implicit within Brady, but that the language of the Court's decisions interpreting Brady make it clear that Brady is not supposed to go that far, that it only has to do with the rights at... at trial.

Furthermore, the solution that the Ninth Circuit proposed with respect to this is both overly broad and underly inclusive.

If the Court was concerned, as it said it was and as the respondent contends it should be, with the potential of innocent persons pleading guilty, the test itself, which is set out in the court's... the... the Ninth Circuit's opinion on page... I think it's 15a of the appendix to the petition for certiorari.

About midway through the page, the court says, the evidence is material under the test announced in this case if there is a reasonable probability that but for the failure to disclose the Brady material, the defendant would have refused to plead and would have gone to trial.

In other words, the test is not couched in terms of the potential innocence of the defendant or the risk that a defendant was... was innocent.

It's couched in terms of the tactical decision a defendant might make with respect to whether or not to go trial.

Unidentified Justice: He should know what the house odds are before he... before he rolls the dice by pleading guilty.

Mr. Olson: Precisely.

In fact--

Unidentified Justice: Which is sort of a different concept from... from what Brady was about.

Mr. Olson: --Exactly, Justice Scalia.

In fact, this Court has frequently said that... that there are lots of risks involved in the... in the defense of a case, a criminal case, and... and there are risks and benefits and burdens and evaluations that must be taken into consideration.

Unidentified Justice: What is the Government's obligation with respect to advising the defendant or the court that the elements of an offense have... have been committed?

I... in all these hypotheticals, the cocaine supposedly... there was supposed to be cocaine.

It's really talcum powder or something, and the Government knows that.

What... is this all taken care by rule 11 or--

Mr. Olson: Well, I think it's taken care of in several ways.

If the... the Constitution gives the defendant a right to trial or a right to confront witnesses, a right to counsel, reasonably competent, informed counsel.

Rule 11 of the Federal Rules of Criminal Procedure require a relatively exhaustive procedure where the court makes sure that the guilty plea is voluntary and intelligent and that the elements of the crime, of course, are involved in whether or not--

Unidentified Justice: --Well, does the Government have to have a good faith belief that an offense has been committed?

Is there... is there some standard that binds the prosecution?

Mr. Olson: --The standard... the standards for prosecutors in the United States... for the United States are set forth in the... the U.S. Attorneys Manual.

It requires prosecutors not to bring a case unless they believe in good faith that there is a reasonable basis for the case that's being brought, in fact a reasonable basis for believing that there could be a conviction based upon evidence beyond a reasonable doubt.

That's not a constitutional standard, Justice Kennedy.

The constitutional standard is set forth in the... this Court's decisions with respect to the right to counsel, the right to trial, the right to intelligent information with respect to that.

Rule 11, which is a... which is a joint product of the courts and the... and the legislature, sets out elaborate procedures pursuant to which a Federal judge will inquire with respect to the basis for the plea, explain the rights that the defendant has violated, and specifically requires the Federal court to find that there's a factual basis for the plea.

Now, so that what I was saying was that is the remedy, the so-called remedy, that the Ninth Circuit has come up... is... is under-inclusive to the extent that if it's concerned about... it's over-inclusive to the extent that it's concerned about innocent people pleading guilty because it doesn't go to the... the factual innocent.

It goes to the tactical decisions, the rolling of the dice, with respect to what are the chances of winning or losing in court.

Unidentified Justice: Is this true, Mr. Solicitor General, that the rolling of the dice concept can apply to an innocent defendant as well?

Supposing the... the defendant and his lawyer know there are three eyewitnesses who were going to identify him.

They also know he wasn't there, but there was somebody there who looks a lot like him.

And so they've got a choice of either taking the chance of getting acquitted, in the face of that evidence and based on their own denial... he doesn't have an alibi... and if he gets convicted, he has a very long sentence.

And he gets an offer of a plea bargain, a very short sentence.

I don't suppose there's anything unethical about the lawyer trying to figure out what the odds are.

Mr. Olson: Well, no, there's nothing unethical about the lawyer trying to figure out what the odds are.

In fact, rule 16 of the Federal Rules of Criminal Procedure give fairly elaborate rights of discovery to the defendant's counsel.

And at that plea agreement, the judge will inquire with respect to whether there's a factual basis for the plea agreement.

In fact, the judge in this case specifically addressed that question to the defendant, asked the defendant is it, indeed, true... asked the defendant and then the counsel interceded and said, yes, she was bringing in her car 60... 60 pounds of marijuana.

And then the judge turned to the defendant and said, is that true?

And the defendant said, yes, I knew that it was--

Unidentified Justice: What is the lawyer... what kind of advice is the lawyer to give?

Hypothetically we have an innocent client who has a very severe risk of being convicted, and the lawyer would tell him there's going to be a plea colloquy here, and if you don't acknowledge this, the plea bargain will go down the drain.

Now, I guess he shouldn't tell him what... I don't know exactly what the lawyer is supposed to do there.

Mr. Olson: --Well, I don't... I'm not sure either.

It would all depend upon the circumstance.

There is... there is a possibility that this Court's recognized in the Alford decision a possibility of making a plea which is... which is not incompatible with a defendant's assertion of innocence.

But I think that in most cases the defendant is the one who will know more than anyone, the prosecutor or anyone else, whether the defendant is guilty.

Unidentified Justice: Right, but I'm assuming a case in which the defendant knows he's not guilty, and nevertheless, there's a risk that, because the odds are so heavy if you get convicted, you go away for 20 years.

If you have a 16-month plea bargain, you may want to not take the chance.

Mr. Olson: Well, I understand that, Justice Stevens.

That may happen in a particular case.

This Court said in Bagley that Brady's primary purpose is not to... Brady's purpose is not to displace the adversary system as the primary means by which truth is... as the primary means by which truth is uncovered.

And I think that the answer to your question is that this system, no system is perfect or ever will be perfect, but we do have a panoply of constitutional rights.

We insist that the defendant be adequately counseled.

We insist that the judge through rule... through rule 16--

Unidentified Justice: So that in effect you're saying there may be a hypothetical situation out there, but we've got millions of cases.

Also, we've got to balance the two, one against the other.

Mr. Olson: --Absolutely.

And I must... I must say that with respect to... we're not talking about that case here.

We're talking about a blanket rule which would apply in 57... you know, 57,000-some guilty pleas in the Federal system every year.

Unidentified Justice: Well, the McMann and Brady cases too said that a defendant may have to make some hard choices.

Mr. Olson: The Court said that explicitly.

Unidentified Justice: Well, if we're talking about balancing and basic fairness, I guess their argument would be with 57,000 cases going... that's 85 percent or 90 percent of all people plead guilty.

Most of those are drug crimes.

When the prosecutor sits there with a drug crime, he says, you plead guilty to a telephone count, it's 8 months, or I bring you to a mandatory minimum charge in trial and it's a minimum of 5 years.

And under those circumstances, the person is quite tempted to plead guilty irrespective of the facts.

And therefore, it balances.

As you were saying, it balances the system and it makes it somewhat more fair in that mine run situation to understand what are the chances of being convicted if I do go to trial.

Mr. Olson: Well--

Unidentified Justice: That would be the argument, I think, the other way in terms of fundamental fairness.

Mr. Olson: --And I would answer that in two ways.

In the first place, I think the Chief Justice answered it by referring to the Brady v. United States case.

Unidentified Justice: So, you'd have to say that you're right, that that isn't what Brady said.

But in taking... taking into account the reality of the criminal justice system, where 85 percent of the people plead guilty, and the prosecutor is armed with this tremendous don't plead guilty or else sentencing system, that this creates a kind of basic balance that... in terms of fairness... I'm trying to get the argument out.

Mr. Olson: I understand, Justice Breyer, I understand what you're saying.

And there's a certain... there's a certain logic to it.

But if that is... if that was the case, then the Ninth Circuit's rule is under-inclusive because if the defendant really wants to know what the best chances are, rather than the exculpatory material or the impeachment material, what he is going to want to know is the inculpatory material.

And you made the point about the other... other prosecutions that are being held over the defendant's head.

He's going to want to know what... well, what evidence do they have on the greater offense that they're about to charge me with, because I'm going to take my chances now and plead to this lesser included offense.

So, if the Ninth Circuit wanted to accomplish what you're talking about as the thrust of your question, it would have gone... and I suspect that it will--

Unidentified Justice: Well, you... you wouldn't want it to go further, would... would you, General Olson?

You... you would not want us to adopt a rule that encourages... that enables innocent people to more intelligently plead guilty when they're innocent?

Mr. Olson: --No.

I'm not--

Unidentified Justice: I mean, it seems to me we should do everything to discourage people who are innocent from pleading guilty.

Mr. Olson: --I... I--

Unidentified Justice: What kind of a legal system is this where we're going to design our rules to encourage guilty people to plead... or innocent people to plead guilty?

It's crazy.

Mr. Olson: --This Court... this Court has said that it's perfectly appropriate in the adversarial system for the prosecutor to find legitimate ways to encourage guilty defendants to plead guilty.

Now, we... you're absolutely right.

It's--

Unidentified Justice: We're worrying here about innocent people, and we're trying to encourage them to plead guilty so that... if they know everything about what the Government has.

I mean, there's something wrong with a legal system that... that--

Mr. Olson: --But there's--

Unidentified Justice: --is even contemplating such--

Mr. Olson: --Justice Scalia--

Unidentified Justice: --such action, it seems to me.

Mr. Olson: --nothing in this case that involves that issue at all.

We have a guilty defendant who has acknowledged under oath... I think it was under oath.

Usually it is, in the Federal court systems... that this person was guilty.

So, you are faced with the possibility of drafting a rule... or the Ninth Circuit drafted a rule for a hypothetical situation not involving the case before it, which was over-inclusive because it includes the vast number of people that are indeed guilty, and under-inclusive because it doesn't provide a remedy... the best remedy which we would definitely not encourage, but I would suggest would be the next step, possibly from the same circuit, with respect to giving additional information.

And it would be inconsistent not only with that, but it would be inconsistent with what this Court has said over and over again with respect to the value of competent counsel, the fact that certain chances have to be taken, that a defendant is not entitled to set aside a plea because he may have misconstrued the weight or balance of the prosecution's case, or there may have been mistakes of law.

In one... in... in Brady v. the United States, in fact, it was a misconstruction of whether or not the defendant would... could be... could be put to death if the defendant went to trial.

So, this Court has recognized that there are those balances in the system.

But what the... what we urge upon the Court is that there are so many protections, including the discovery right, the fairly exhaustive--

Unidentified Justice: The discovery right would cover... you did say there were some things that a defendant perhaps would not know, and one of them you mentioned in your... in your brief is if you rob a bank and you don't know whether it's FDIC insured.

That kind of information.

How would that... how would that come out pretrial?

Mr. Olson: --That would... that would come out through rule 16 of the Federal Rules of Criminal Procedure, which is set out in the appendix, I think 3a to 5a, of our brief on the merits.

The defendant is given pretrial considerable discovery rights to find out those sorts of things, and if the defendant is not sure and, after consultation with his counsel, wishes to go to trial, there's... the Brady rights do kick in at an appropriate time to allow the defendant to prepare for trial.

What I'm saying is that... that the combination of the constitutional rights to trial and... and confrontation, the constitutional rights to counsel, the... the statutory rights to discovery, the statutory obligations on a judge to make sure there's a factual basis for the guilty plea, the obligations... and we have to assume under... as this Court suggested in the Mezzanatto case, a... a good faith behavior by our public officials that a prosecutor is not going to withhold evidence in... on... where it knows that the... this is an innocent defendant.

Those are ample assurances, especially in the context, as this Court has said over and over again, that the best person to know whether there's a factual basis for a plea of guilty is the defendant himself or herself.

I will say one more thing that is... that seems to me important with respect to the... this... the posture in which this case comes.

If this Court were to determine that there is a constitutional right... and we think that neither this Court's decisions nor the Constitution would lead the Court to that conclusion... the constitutional right could be waived.

The Ninth Circuit said that a defendant cannot, even if the defendant wanted to, plead guilty.

Knowing that the defendant was guilty, the defendant could not waive the right.

Now, that has several implications.

It... it creates problems for the criminal justice system.

The Brady... the Brady right that the Ninth Circuit would engraft on the system here would force prosecutors to develop cases and use resources at the defendant's initiative, on the defendant's time table.

It creates... turns Brady... the right, from a fair trial right into a fair trial preparation right.

With respect to certain types of cases, it would compromise conspiracy cases, racketeering cases, organized crime drug cases, white collar cases where there may be substantial warehouses full of documents.

In other words, many prosecutors won't be preparing their case for determining what witnesses they're going to use until they're ready to go to trial.

Once they... if they had to disclose this information on the defendant's time table, which the defendant... if this rule were adopted by this Court, the first thing a defendant would do is offer... say,

"I'm thinking about pleading guilty."

"Give me everything in your files."

Now, a prosecutor in complicated cases is not going to want to do that and... and will refuse to engage in that process or will... once... once it does so, there's no more incentive for the... for the prosecutor to enter into the plea bargaining process.

So, it could be damaging to the benefits of the defendants over and over again that's received the benefits of the plea bargaining system, which this Court has sanctioned and encouraged.

Unidentified Justice: I don't want to cut into your... your reserve time.

Just one question.

If you prevail in this case, what happens?

Does she get a longer supervised time of relief?

Or is there anything that's still live in this case as to this defendant?

Mr. Olson: The... she... she--

Unidentified Justice: Or has she served the full time anyway?

Mr. Olson: --she... I don't... I don't know whether she's served the entire... the sentence that was given to her was 18 months in incarceration and a 3-month... a 3-year--

Unidentified Justice: 3 years.

Mr. Olson: --probationary period.

I think that that would continue to go on.

That was at the very low range, low end of the guideline sentence.

Unidentified Justice: So there is still some... something at stake here?

Mr. Olson: Yes, I believe so, Justice Kennedy, but I'm not sure, 100 percent sure, factually I know the answer to that.

If I may reserve the balance of my time.

Unidentified Justice: Very well, General Olson.

Mr. Hubachek, we'll hear from you.

ORAL ARGUMENT OF STEVEN F. HUBACHEK ON BEHALF OF THE RESPONDENT

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

The Due Process Clause requires the disclosure of materials--

Unidentified Justice: Before you get going, is the case moot?

Is there something left on the 3-year probation period?

Mr. Hubachek: --Yes, there is, Justice O'Connor.

Unidentified Justice: Thank you.

Mr. Hubachek: Now, the... the disclosure of material exculpatory information is essential to ensure the accuracy of criminal convictions.

And Ake indicates there's a societal and individual interest in the accuracy of such convictions that's paramount.

The system that we have now, as has been discussed already this morning funnels cases into plea negotiations, and the... the Court has said that's not a bad thing, but it... still, it funnels everybody, the guilty and the innocent, into the same sort of result.

Innocent people are provided the same substantial and legitimate incentives to plead guilty as guilty people are.

And if I could return to Justice--

Unidentified Justice: No.

I... I object to that.

I... I don't think our system ever encourages or, indeed, even permits an innocent person to plead guilty.

Our rules require the judge to... to interrogate the person pleading guilty to make sure that, indeed, the person is guilty.

There is nothing in our system that encourages or even allows an innocent person to... to plead guilty.

And I would be horrified if... if there were something like that.

Mr. Hubachek: --Well, Justice Scalia, the... the system does not... first of all, I guess the first protection would be a rule 11 type factual basis.

That's not required in every case.

In fact, the Fifth Circuit cases that the Solicitor General relies upon, both of those were nolo or Alford type pleas.

So, there was no factual basis provided at all in those cases.

Individuals who don't know whether they're innocent or guilty... they don't have to provide a factual basis that's... that's incorrect or false.

Unidentified Justice: How many individuals don't know whether they're innocent or guilty?

Mr. Hubachek: Your Honor, there are some.

I've--

Unidentified Justice: I'm sure there may be rare cases, but it... it is rare.

Is it not?

Mr. Hubachek: --I'm sure that it's not tremendously common, but the important thing is... is that individuals who are innocent do receive the same incentives to plead guilty.

And I've cited some cases from various State courts at pages 10 to 11 of the brief where individuals pled guilty where substantial material exculpatory evidence existed, several cases like Justice Stevens' hypothetical involving identification testimony where an individual was charged with an offense and was told that there had been an identification made by what appeared to be an otherwise unimpeachable witness--

Unidentified Justice: So... so that's what your case comes down to?

You want us to facilitate the pleading of guilty by innocent people.

You... you want us to set up a system that will make... will make that a more intelligent decision so that we can put in jail a lot of people who plead guilty even though they're innocent because it's a good deal for them.

Mr. Hubachek: --No, Your Honor, not... not at all.

I--

Unidentified Justice: I thought that's what you're saying.

I don't know what other... for the guilty person, you're not worried about it.

You're... you're asserting the rights of the innocent.

Mr. Hubachek: --Right.

It's the innocent person who needs to receive this--

Unidentified Justice: Who needs to be able to plead guilty so he'll... he'll serve a sentence that he doesn't deserve.

Mr. Hubachek: --Well, Your Honor, the fact that that happens exists already.

The rule that I'm asking for is to provide material exculpatory information to individuals who are not guilty which will, when they are able to--

Unidentified Justice: But your client is guilty, and I don't understand why what we're talking about is some hypothetical.

You have to establish your client's right and the argument is, if the case is going to go to trial, you're entitled, before the trial starts, to get this stuff, but you're not entitled to get it in the beginning of the case.

And you are representing a guilty client and asserting that right on behalf of your guilty client.

Mr. Hubachek: --Well, Justice Ginsburg, the... the posture of the case, as has been discussed, is that there... this is a sentencing issue where there's a request for a departure based upon the... this fast track program.

Ms. Ruiz didn't participate in the fast track program because she objected to the term of the plea agreement which required her to surrender her rights under the... the Brady decision.

Unidentified Justice: But she... she pled guilty nonetheless.

She said she's guilty.

Mr. Hubachek: Yes, she did.

Unidentified Justice: And she didn't enter an Alford plea.

Mr. Hubachek: No, Justice Souter, she did not.

But the... the way that the case was presented to the Ninth Circuit was that she had a constitutional right to this information, if it existed.

I mean, there are situations where the... the marijuana, for instance, in this case is concealed.

It's unlikely that an individual who's merely a courier would ever have actual access to it.

There is a recent spate of cases in Dallas where the drugs that were seized turned out not to be drugs.

Unidentified Justice: That's all true, but this is... you're asking for a really major change in the system.

I mean, what the Government says... and maybe it would be a better system, but the Government says, once we go down this path, here's what's going to happen.

And they sound right to me.

The prosecutors, who are very busy... very busy... and have a little time with the witnesses and they go in and start talking about a plea, will now not be able to do that.

They'll have to look into their witnesses, get all the evidence together, get the impeachment stuff, give it to the defendant, and 80 percent of them or maybe only 30 percent will say, the hell with this.

We'll go to trial.

I'm not going to do it.

We'll go to trial.

And under the present system, particularly in drug offenses, what that means for many, many, many people, guilty and innocent... let's say guilty... they're going to go away for very long times.

And therefore, we're transforming this system into something like a European system where you can't take guilty pleas, and it'd be somewhere in the middle.

That's a major change.

And, anyway, the Constitution doesn't requirement... require it and it would work out the worse, they say, for a lot of defendants.

Mr. Hubachek: Well, first of all, Justice Breyer, the... this system has been in place in the Southern District of California, which has this enormous caseload and all these drug cases, for the past year.

The term--

Unidentified Justice: Have they been giving all the evidence, the impeachment evidence and so forth?

Mr. Hubachek: --Right.

The term that... that Ms. Ruiz objected to has been removed from the plea agreement.

It's been going on for a year.

The pleas are proceeding apace.

Unidentified Justice: The same way?

Mr. Hubachek: The same way, Your Honor.

The--

Unidentified Justice: But let's... let's go back perhaps to Justice Ginsburg's question, that you say you're here on behalf of innocent people who want to plead guilty.

But your own client admitted that she was... had 50 or 60 pounds of marijuana.

Surely, you've got to argue for a rule that favors something like that who is not an innocent person.

Mr. Hubachek: --Well, the rule that I'm proposing would, indeed, benefit both non-innocent and innocent individuals.

But that's the case with every constitutional protection.

Unidentified Justice: Well, wouldn't it be better to just say we don't accept guilty pleas from innocent people?

That's our policy.

Mr. Hubachek: Well, the... I don't think that any judge or any prosecutor wants to accept guilty pleas from innocent people.

Unidentified Justice: And indeed may not do so.

That's the rule.

You... you won't accept a guilty plea from someone who's innocent.

Mr. Hubachek: Well, the protections that are in place don't fully account for innocence.

For... for example, even in a rule 11 decision... in a rule 11 plea, if you ask someone, did you sell the drugs or did you, you know, shoot the person, that doesn't say anything about whether or not there's entrapment.

It doesn't say anything at all about whether or not there's self-defense.

If a defendant pleads guilty in ignorance of that kind of information, then in fact an innocent person could plead guilty.

In Alford pleas or nolo pleas, there's no factual basis provided at all.

And again--

Unidentified Justice: Wait a minute.

I don't understand.

The person doesn't understand that there's a... this person doesn't have a lawyer who tells him, you know, if you shot the person in self-defense, of course, you're not guilty.

Is... is that the hypothetical you're positing, somebody who has such poor legal advice and he doesn't know there's a right of self-defense?

Mr. Hubachek: --The... the concern here, Justice Scalia, is not evidence that the lawyer has access to and simply misadvises the client.

I understand that you have to take the risk in many situations.

What I'm talking about is evidence that would support such a defense, an entrapment defense, or a self-defense defense that's not available to counsel but is in the possession of... of the prosecution.

Unidentified Justice: Well, it would certainly be in possession of the defendant.

I mean, it... it's impossible for him not to know whether he was acting in self-defense.

The... the only possible reason for... for giving him, this innocent person, this information is to enable him to make an intelligent judgment to plead guilty even though he's innocent.

And I don't think we're... I don't think we're supposed to encourage that.

I mean, we would have contradictory policies.

Other provisions of our laws make it very clear that we are not to accept guilty pleas from innocent people, and you want to adopt a system that will enable innocent people more intelligently to plead guilty.

Mr. Hubachek: Well, perhaps... what I'm saying is... is that if information that supports the self-defense theory that is not in the possession of the defense but is in the possession of the prosecution, if that evidence is turned over, that will make it more likely that the innocent person will go to trial--

Unidentified Justice: Okay.

Let's--

--Is there... is there any precedent outside the Ninth Circuit that says Brady is an immediate turnover right and not a preparation for trial right?

Mr. Hubachek: --Yes, there is.

The Second Circuit has adopted this rule since 1988, and again, while the Solicitor General has come forward and indicated there are numerous potential down sides to this type of constitutional rule, the bottom line is... is it--

Unidentified Justice: The Second Circuit has for impeaching material as well?

Mr. Hubachek: --Yes, Your Honor.

Unidentified Justice: Let me go back to a variant of Justice Scalia's question.

It seems to me that your strongest argument is the argument that does focus on the... the supposedly innocent defendant.

And... and the argument that I think is strongest with respect to that category is the argument that those who enter Alford pleas obviously are not doing so because they want to plead guilty, despite their protest of innocence, they're doing it because they think they face such terrible odds that, in fact, it's better for them to collapse at the beginning and get it over with.

And if these people are presented with exculpatory, including impeachment evidence, they are less likely to do just what Justice Scalia says we, after all, as a system don't want them to do.

My question is, do you have any indication that there is such a rash of unintelligent Alford pleas going on that we should modify the entire system to respond to this risk of Alford pleas that, in fact, would not be entered if the disclosure that you ask for were given?

Mr. Hubachek: I don't have an... an empirical study that shows how many such guilty pleas are entered.

I've cited on pages 10 to 11 of the respondent's brief a number of cases in which there are potentially innocent people who have pled guilty, individuals who didn't know, for instance, that a witness saw the tire blow out on the car before the car crossed over the median, indicating that that person... that the tire blowout, not the person's driving was responsible for the accident.

Another case, the Gibson case, where the prosecutor was actually told by the main identification witness that she was changing her story, and that wasn't turned over to the defense.

In the Lee case, a situation where the individual was charged with an offense and told that there was an identification, and it turns out that the... the witness misidentified him and that then the... the witness was later shown, before a preliminary hearing, a picture of the defendant.

So, there are cases out there in which this risk exists.

And if I could, I think that the... one of the problems I guess in getting across the point is that I think the Solicitor General has misstated the import of the Ninth Circuit's test.

The Ninth Circuit's test is not solely a... you know, we want to give you all the cards so you can make a better strategic choice.

The... the test is derived from the Court's decision in Hill v. Lockhart, and Hill v. Lockhart's test says would the defendant have gone to trial if, in fact, he had received the proper advice.

But then it says that--

Unidentified Justice: Well, but even... even if you're going to imply... if... if that's going to be your standard, it seems to me that the Solicitor General has got a point when he says if the Ninth Circuit test is going to be applied and applied with your gloss, it can't stop where it is now.

It's going to have to go the further step and, in effect, require disclosure of all the inculpatory evidence.

What's your response to that?

Mr. Hubachek: --My response to that is... is that we're asking for a right based on Brady, and Brady doesn't provide for--

Unidentified Justice: Oh, but Brady... I mean, Brady ultimately comes down to a judgment about materiality, and... and materiality in the sense of... of the kind of evidence that disturbs confidence in the verdict is a judgment that can only be made in the context of the entire evidence of the case.

Brady judgments ultimately are made after the fact.

And I don't see why that... that very fact if we're... if Brady is going, ultimately, to be our standard here, doesn't imply just what the Solicitor General argued.

Before we can tell that there has been a violation of the rule that you propose, a court would have to know... and indeed, before that, a defendant presumably would have to know... the... the entire evidentiary world of that case.

And that means you've got to know a lot more than impeachment evidence or even exculpatory evidence.

You've got to know what the inculpatory evidence is.

So, it seems to me that what you're arguing for, even with your gloss and even starting with Brady, is essentially a global disclosure rule.

Mr. Hubachek: --Well, I'd respectfully disagree.

I think that the Hill v. Lockhart test, when specifically the Hill case was discussing when defense counsel fails to... to find material exculpatory evidence, that the Ninth Circuit test would apply at that point, but that that test will ultimately devolve into what effect this evidence would have at trial.

So--

Unidentified Justice: Hill... Hill was an ineffective assistance of counsel case, wasn't it?

Mr. Hubachek: --That's correct, Your Honor.

Unidentified Justice: So, we're not talking about any obligation of the prosecutor in Hill.

Mr. Hubachek: No.

I understand.

But... but Hill talked about ineffective assistance of counsel in the context of the failure to locate material exculpatory evidence, essentially the same facts that... that could conceivably result in the withdrawal of the guilty plea.

Unidentified Justice: Yes, but the relationship between a defendant's attorney and the prosecutor on the other side are by no means the same.

Mr. Hubachek: I agree.

And Brady certainly doesn't suggest that they're the same.

Brady in trial requires that the prosecutor turn over the evidence but not to tell the defense lawyer how to use it.

Well, we're positing that the same sort of obligation should exist at the pretrial stage.

The prosecutor has to turn over the information but not go any further and provide advice as to how it should be used.

Unidentified Justice: It's so odd that it comes to us in a case where there's no suggestion that we're dealing here with an innocent defendant.

We're... we're told nothing about what's out there that would affect this case, are we?

Mr. Hubachek: I... I understand that this is a case where there's a guilty plea and we're not making an argument that she... that Ms. Ruiz should be permitted to withdraw her guilty plea.

However, if the Court adopts a rule that the Ninth Circuit and the Second Circuit's approach is incorrect, then defendants will not receive exculpatory evidence before they plead guilty and situations such as arose in the various--

Unidentified Justice: Well, I... I assume there is, as the Solicitor General suggests, some pretrial discovery right that a defense counsel has.

Mr. Hubachek: --Well, there's some pretrial discovery right, but it's not extensive and oftentimes it doesn't cover the types of information that has led to potential miscarriages of justice, as I set out in the brief.

Unidentified Justice: And in fact, the... the relevant discovery rule actually prohibits, as I read it, discovery of some material that you say this rule would cover.

Mr. Hubachek: Right.

For instance, the... the--

Unidentified Justice: Statements of witnesses, for example.

Mr. Hubachek: --Exactly.

Justice Stevens, your--

Unidentified Justice: Which is... which is a troubling concept because one of the things we're sort of trying to do here is balance the system-wide benefit of an... a fast track program, on the one hand, with the occasional case where there's a risk of injustice that... that concerns you.

And it's that very balance that, it would seem to me, must have motivated the draftsman of rule 16 and the enactment of the Jencks Act that have developed some rather elaborate rules as to just what rights you do have before you plead guilty, and you're, in effect, saying well, we should go beyond those as a matter of judicial craftsmanship.

Mr. Hubachek: --Well, the rule that we're proposing would not supplant all of those rules.

This is a narrow range--

Unidentified Justice: It would add to them, and that's it.

There's... there's a limited right of discovery under the Federal rules, and you are urging an expansion of that right essentially.

Mr. Hubachek: --It... it would expand it.

That's correct.

However, it would expand it in only a narrow fashion because the information that we would... that the defense would be entitled to would be limited by the notion of materiality.

Much of the debate in Agurs and Bagley was whether or not a more broad rule should be adopted, but ultimately the... the Court settled on the materiality standard.

Unidentified Justice: What we're doing is... is you're asking us to open up the plea bargaining process and piecemeal to bring in a constitutional rule that would affect one aspect of it.

Now, it's... it's hard for me to accept that, at least without knowing more about what are the proposals around in the bar and elsewhere as to how that process should be regularized.

Are there rules suggestions, rules change suggestions, statutory suggestions?

Where does this constitutional rule coming in, in a sense, out of... from somewhere suddenly affect this... the whole process?

Can I get a grasp of that by reading something?

Mr. Hubachek: I... I can't direct you, Justice Breyer, to any particular rule change proposals that are out there.

Our argument is based upon the notion that everyone agrees that the defendant is entitled to... to material exculpatory evidence at trial under the Fifth Amendment and also that the... that the Sixth Amendment requires defense counsel to find material exculpatory evidence to use at trial.

Now, the... the Sixth Amendment also requires counsel to locate material exculpatory evidence before the decision to make a plea is... is made.

And the reason that is is so that it will be a plea that's worthy of confidence.

And that's... ultimately the standard under Brady is... is essentially the same as under Strickland.

We want a... a proceeding that's reliable.

Under the current state of the law, if defense counsel fails to find a piece of material exculpatory evidence, that guilty plea is then, therefore, going to be unreliable.

But if the same piece of... of material exculpatory evidence is unavailable to counsel, but in the possession of the prosecution, that conviction is considered to be reliable even if the defendant doesn't get the benefit of it.

So, what we're proposing is... is that there is a complementary action of... of both the Fifth and Sixth Amendment rights pre plea and during the trial and that if there is going to be an overlap in the Fifth and Sixth Amendment rights it's got to be at... where the interest that those rights protect is at its highest, and that is, protecting the innocent from pleading guilty.

Unidentified Justice: Under the fast track program, does the defendant have to waive rule 16 rights?

Mr. Hubachek: The... under the fast track program, the defendant can't file any motions at all, but the... what happens is... is that there is a pre-indictment offer that's made and the pre-indictment offer is usually accompanied by discovery in the form of... in a case like Ms. Ruiz's, the reports of the initial inspectors and then the special agent who comes in and does the interrogation and does the... sort of a summary of the other individuals' information.

Unidentified Justice: So, those are available even under the fast track program.

Mr. Hubachek: That's correct.

That information is provided.

Unidentified Justice: Suppose you're right on your constitutional argument.

I'd just like you to spend 1 minute addressing what I do not see how we get around the simple fact that you have a client and your client is saying that, as a matter of law, the judge had to depart.

And not only am I unaware of any law that says the judge has to depart, but in this case, I can't even find a provision that would allow him to depart.

And... and I... they've said, oh, well, he was under a mistake of law.

So, I've read the three sentences quoted for that proposition, and I certainly don't see any mistake of law there.

He says, the court has read and considered the... the documents, blah, blah, blah, and I've decided this is... the court feels that this is not a proper case for departure.

So?

And in another part of the record, he says... he says, if you didn't sign an agreement, you have to live with the consequence.

Mr. Hubachek: I... I agree, Justice Breyer, that there's no rule that you can say that a district court is compelled to depart in any case.

The... the district court judge, when asked to depart because Ms. Ruiz was being denied the fast track benefit because she refused to agree to what she thought was an unconstitutional provision... the district court's only response was... is that was acceptance and offer.

The... and the interpretation of that is... is the district thought it didn't have discretion to depart unless the Government was agreeing--

Unidentified Justice: That's really not what he said.

I mean, he just said you're not going to get advantage of this because you didn't sign it.

He said it's just not proper.

I mean, I wish he'd give us language that... that would indicate that he thought he couldn't depart, even if he wanted to.

He just said it's not, in his view, a proper case, but that's... you know, that's fully consistent with his discretion.

Mr. Hubachek: --The... the district court's comment related to whether or not... he said to counsel that there was offer and acceptance and... and that's it.

And that--

Unidentified Justice: What's bothering me is this, that you could say, okay, let's just hold everything in abeyance, get to the issue.

If we do that, why wouldn't this case stand for the proposition that courts of appeals have absolute authority to review every instance in which a trial judge refuses to depart?

In which case there will be tens of thousands of such instances every year going right up to the court of appeals for review of the question whether he should have departed.

Now, that's a major change in the law, I think.

And how... how could I avoid that change and yet get to the issue?

Mr. Hubachek: --Well, the Solicitor General hasn't been framing the questions related solely to the discovery issues, the Brady issue and the waiver issue.

So, I don't think that the Court would be ruling on the propriety of the... of the Ninth Circuit's analysis--

Unidentified Justice: Your... your answer is an easy one, Mr. Hubachek.

Our... our opinions are very clear that in cases where we say nothing about jurisdiction, there is no holding on jurisdiction.

Mr. Hubachek: --That's... that's what I was--

[Laughter]

Unidentified Justice: If we simply didn't... if we... if we simply didn't discuss the jurisdictional point, our... our decision would stand for nothing.

But it's not very responsible to do that where it's very clear where there's that there's no jurisdiction.

That's... that's the more serious obstacle.

Mr. Hubachek: Well, perhaps cert was... was improvidently granted.

I mean, the... Mr. Solicitor General has come up and said that the... the Government is not challenging the... the Ninth Circuit's ruling.

Unidentified Justice: Did you argue in the Ninth Circuit that there was jurisdiction?

Mr. Hubachek: Yes.

Unidentified Justice: Then I take it you certainly don't take a different position here.

Mr. Hubachek: No, certainly not, Mr. Chief Justice.

Unidentified Justice: But our remedy would not be to dismiss the writ.

Our remedy would be to vacate the judgment of the court of appeals if the court of appeals did not have jurisdiction.

You don't want that.

Mr. Hubachek: No, I don't.

[Laughter]

With respect to the... the... with respect to the Fifth and Sixth Amendment claim that we've made, the Second Circuit has also found a different theory under which the... the Court could find a Brady violation, and they've indicated that the failure to turn over Brady information is essentially otherwise impermissible conduct under the Brady v. United States case.

So, Mr. Chief Justice brought up Brady v. United States, and I think that the Ninth Circuit's analogy to Hill v. Lockhart and the Miller v. Angliker impermissible conduct approach has both addressed the concern that United States v. Brady would preclude.

Unidentified Justice: But... but, you know, to say we'll just call it impermissible conduct because we want to get it done isn't very satisfactory.

I mean, you have to say why it's impermissible.

Mr. Hubachek: Right.

And our... our point is... is that it's impermissible because the Fifth and Sixth Amendments together protect the innocent from conviction.

When the Fifth Amendment right to receive the information... excuse me.

When the Sixth Amendment right to have counsel find this information attaches, then the Fifth Amendment right to have the Government turn it over should also attach because the same source of unreliability would be present if, in fact, the defendant were to make the decision to plead guilty without receiving material exculpatory information.

Unidentified Justice: But in order to make that argument, as I understand it, you have to make an unreliability argument divorced from a materiality argument.

Do you agree?

Mr. Hubachek: No.

No, I don't because there is a materiality requirement in Hill v. Lockhart.

Unidentified Justice: How do we judge that materiality at... I mean, in Hill and Lockhart, when... when you're dealing with counsel, you can at least say, well, if... if they had been aware... regardless of how the case would have turned out, there's a way in which it makes sense to say that if they had been aware of this kind of evidence, they would have said we're going to trial.

We're going to roll the dice.

When you're dealing with... with essentially a... a Brady rule, you're not dealing with a will they roll the dice or will they not kind of question; you're dealing ultimately with the question of what was its effect on the... the soundness of the verdict, the soundness of a result.

And the only way you can make that judgment is to know everything that would be in the case.

In a sense that's easy in a Brady situation because you're looking back.

Here you can't look back.

So, it seems to me that you've either got to come up with an entirely new materiality or prejudice standard, and the... and the effectiveness of counsel cases don't seem to me quite on point there.

Or you've got to dispense with a materiality standard entirely and say anything that would have had any tendency to exculpate or to impeach in a way favorable to the defendant, if denied, supports in effect a... a claim for relief, which is a nonmateriality standard.

Mr. Hubachek: Well, Justice Souter, on page 16 of our brief, we have a block quote from Hill v. Lockhart, and I really think that the test that was discussed in Hill v. Lockhart covers the... the concerns that Your Honor is mentioning today.

And ultimately Hill v. Lockhart concludes by saying that in... in the case of counsel failing to discover material exculpatory information, which is essentially the same type of problem that we're talking about here, it says that ultimately the assessment will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.

Now, I certainly agree that it will be a more difficult assessment to make without there actually having been a trial, but we're asking that Your Honors adopt a rule in which you would be... the courts would undertake exactly the same analysis that Hill v. Lockhart already requires in the context of defense counsel failing to find a piece of exculpatory information.

And... so, we're not at all asking that this analysis--

Unidentified Justice: But that is a different... I mean, it necessarily is a different standard from the Brady standard of materiality which we have now.

Is it not?

Mr. Hubachek: --Well, the Brady standard for materiality, as was explained in Kyles, derives from Strickland.

Hill v. Lockhart also derives its materiality standard from Strickland.

So, I think it's--

Unidentified Justice: Well, let's go back to my question.

They... they may have a common ancestry, but in fact they are not identical tests because they are applied in circumstances that are by definition very different.

Mr. Hubachek: --Well, I... I think that it's an easier application post trial, but it's still the same test that... that's... that we're being asked to apply in the plea situation because Hill v. Lockhart says, look, if counsel doesn't find the key piece of evidence and you plead guilty, then we're going to go back and look and see, well, what would have happened at a trial if you had that key piece of evidence.

If there's a reasonable chance you would prevail at trial--

Unidentified Justice: And in... and in order to do that intelligently, we've got to know what the trial would have included, won't we?

And that either means, number one, that the disclosure has got to go to, in effect, the inculpatory evidence, or it means at the minimum, number two, that the State has an opportunity to come in and say, we'll tell you what the inculpatory evidence would have been.

This is what we would have put in, and judged in this context, it's not material.

One way or the other, either... either the necessary implication of your test or the... the implication that the State would have a right to respond to it, it seems implies that in order to apply your rule before trial, a... a court, reviewing one of your claims, would have to make a judgment about the... the significance of the evidence in the context of... of an entire trial, a whole evidentiary record that can be... that can... can be anticipated.

Mr. Hubachek: --And that's the same approach that Hill v. Lockhart requires.

But a prosecutor in making the determination--

Unidentified Justice: Except in Hill it's easier because we know that trial decisions are... are often made without knowing what the result would be.

They are decisions to go ahead and have a shot at defending the case, and that's a different... that's a different standard from Brady materiality.

Mr. Hubachek: --Hill is a plea case.

Unidentified Justice: Thank you, Mr. Hubachek.

General Olson, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF THEODORE B. OLSON ON BEHALF OF THE PETITIONER

Mr. Olson: Thank you, Mr. Chief Justice.

What the respondent is proposing and what the Ninth Circuit adopted is an unworkable and undesirable rule to solve a nonexistent problem.

And it's illustrated by the facts of this case.

The footnote or the... the pages in the respondent's brief cite some cases in which theoretically it might be that some driver who crossed the line earlier might create a problem, but that is not this case.

And there's no empirical evidence or any other evidence in the record that would show that there's a significant problem here.

The--

Unidentified Justice: Mr. Olson, would you address again the jurisdictional problem here?

I mean, if... if in fact the district court judge had discretion about what sentence to impose and could have... and did exercise that discretion, do we have to be concerned about--

Mr. Olson: --I think that is not an easy situation, but I think that the Ninth Circuit believed that however inartfully the district court expressed it or incompletely the district court expressed it, that the... that the district court was saying it didn't feel that it had the capacity or the ability under the law to depart, that it didn't have the discretion to do so.

That's what the Ninth Circuit decided.

We argued otherwise to the Ninth Circuit--

Unidentified Justice: --I guess this is not a proper case could mean that, I suppose.

I wouldn't put it that way, but it could--

Mr. Olson: --It could mean that.

That's how the Ninth Circuit... Circuit perceived it.

Unidentified Justice: --I'd even attempt not to say anything about it, so long as I was not certain that there was no jurisdiction.

Mr. Olson: We... we believe that we... after looking at it carefully, we've decided that the Ninth Circuit probably was right under the circumstances, although you could argue it the other way, and that this... this is an issue that is presented clearly with respect to the... the legal standard that's been adopted to the... by the Ninth Circuit and which is in play today.

The... the respondent says, well, pleas are proceeding apace in California notwithstanding... or in the Ninth Circuit, notwithstanding the decision in this case.

There is no evidence in the record to suggest that this hasn't created a problem, and in fact, I'm informed that there are cases that have not been brought and cases that have been dismissed because of a concern about complying with the rule in this case, because once that's done, those cases are... are potentially over with.

But the fact is there's no evidence either way.

Justice Breyer, you raised some questions about whether we would be constitutionalizing a rule which would change Jencks and change the discovery rules.

There... there... on page 26 of the Government's brief, we talked about the fact that there have been efforts to change and accelerate the discovery requirements and that those have been soundly rejected for the very reasons we've been talking about here.

And the Jencks standard is what it is because there's very much concern over the safety of witnesses when those statements are produced earlier in the case.

And that's... Congress has made that decision quite consciously that those statements don't have to be produced until the witness is actually called in trial for that reason.

Let me finish by saying that with respect to Hill v. Lockhart, that's a case involving a requirement that a defendant have, under the Sixth Amendment, competent counsel within the range of... of competence expected for counsel in criminal cases.

That's a Sixth Amendment right to effective assistance of counsel.

It is not a... a constitutional right to effective assistance of the prosecution in deciding whether to plead guilty or not.

What we have in this case is a rule which is not required, which... which would cause considerable problems.

It would undermine the plea bargaining system, which is important to the administration of criminal justice in this country, and affect the finality of guilty pleas, which is an important consideration as well.

Chief Justice Rehnquist: Thank you, General Olson.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Bousley v. United States - Oral Argument

Fri, 09 Jan 2009 14:50:03 +0000

Case:

Bousley v. United States

Media File:

96-8516_19980303-argument.mp3

Related Transcript:

1997_96_8516_argument.xml

Transcript:

Argument of L. Marshall Smith

Chief Justice Rehnquist: We'll hear argument now in Number 96-8516, Kenneth Eugene Bousley v. United States.

Mr. Smith.

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

This is an unusual case in that it may fairly be said that this defendant is in prison for acts that do not amount to a crime.

This Court's unanimous opinion in the Bailey case made it clear that mere possession of weapons near drugs does not amount to use under the Federal statute under which Mr. Bousley was convicted.

It is at the core of habeas corpus jurisprudence to release prisoners who are held without legal authority.

Mr. Bousley is in this position because at the time he entered his guilty plea to the charge under 924(c) the charges had been explained to him in language of possession.

However, the Bailey case makes it clear that one cannot be convicted of this... violating this statute lest there's been proof of active employment.

Unknown Speaker: In other words, this is just really a somewhat standard argument that the Rule 11 colloquy was inadequate?

Mr. Smith: Your Honor, it's not... no, I wouldn't say that, Your Honor.

There's much more to it than that.

Unknown Speaker: Well, I take it that even pre Bailey you would have this same objection.

You talk about possession, not use.

Mr. Smith: That's correct, the argument would be the same.

The difficulty here is that it's not just the colloquy but it's the entire presentation of the nature of the charges to Mr. Bousley led him to believe and, indeed, caused the reflection that this was a mere possession crime, rather than an active employment crime.

As a result, his guilty plea cannot be construed as--

Unknown Speaker: Well, but then that goes to the next argument that the law has changed in your view, et cetera, but if this were pre Bailey, and Bailey had never been on the books, would you... you would still say, I take it, that the plea was inadequately counseled and that the colloquy under Rule 11 was inadequate.

Mr. Smith: --Yes, Your Honor, certainly the colloquy was--

Unknown Speaker: Because they talked about possession, not use.

Mr. Smith: --That's correct, but again, in order for a guilty plea to be valid, it must be knowledgeable and it must be intelligent and when the crime is explained as something other than what the statute actually describes, the plea cannot be intelligent or knowing, because the defendant is not aware and because the presentation does not comply with the statute, so it's more than just a Rule 11 violation.

It's--

Unknown Speaker: Well, I think that's a conventional argument and that the plea bargain and the fact that he had the indictment, the plea... he signed the plea agreement, did he not?

Mr. Smith: --He did sign the plea agreement.

Unknown Speaker: And that adequate... and that sets forth use.

Mr. Smith: No.

No, Your Honor.

Unknown Speaker: It did not?

Mr. Smith: The plea agreement uses the word use.

The plea agreement, however, describes the nature of the conduct that amounts to use as ownership and possession, and this is consistent throughout the proceedings that--

Unknown Speaker: Well, it says count 2 charges that defendant was using a firearm.

Mr. Smith: --That's correct, Your Honor, but it's... use is merely the label for the crime.

That's not the critical element.

The critical element of the crime is active employment and, as the Bailey case--

Unknown Speaker: Well, the statute doesn't talk about active employment.

Mr. Smith: --No, but it--

Unknown Speaker: So that the plea agreement, at least, was in terms of the statute, as was the indictment, of course.

Mr. Smith: --Yes, Your Honor.

Now, the difficulty is, if a defendant is told the label for the crime but not the elements, as in the Henderson and Morgan case, it's not possible to appreciate what actually is involved for a conviction and therefore the plea cannot be knowing and intelligent.

Unknown Speaker: Well, may I ask you this.

When the factual basis for the plea was stated, was that factual basis couched in terms of use, active employment in the sense that Bailey described, or was it couched in terms of mere possession?

Mr. Smith: It was couched in terms of possession, Your Honor and the notion of active employment was not referred to at all during this proceedings.

The only reference was to possession as being the critical element in this charge.

Unknown Speaker: And isn't it the case here that all participants, the judge, the prosecutor and the defendant, all of them in fact understood that the crime was possession, availability of guns and not active use, and that's what the judge explained to the defendant?

Mr. Smith: Yes, Your Honor, that's correct.

That's what all participants thought.

It turns out that that was incorrect, because, as the Court well knows, section 924 requires proof of active employment rather than mere possession.

Unknown Speaker: Now, if he hadn't been told this, but was... by the court but was advised to that effect by his lawyer and had his own misimpression as to what the law meant, would you have a solid case?

Mr. Smith: I think that would be a much harder case, Your Honor, than the one we have here.

However, the test, as reflected in the Henderson and Morgan case, is whether under all of the circumstances there's been an adequate explanation of the crucial elements of the charge and, under your hypothetical, it's quite likely that the defendant would not have had an adequate explanation even in that situation.

Here, of course, it's quite clear that the explanation did not match the critical element of use as it's defined under section 92--

Unknown Speaker: But you can't demand that the trial judge do more than nature allows.

He gave a description of the crime that was the generally understood description.

I mean, it's one thing to say it was misdescribed according to what the law was at the time and then you could invoke Rule 11 and say the court wasn't doing its job.

Mr. Smith: --Well--

Unknown Speaker: But here, the court did its best on the basis of the current law.

Mr. Smith: --Well, Your Honor, I have to disagree with the notion that this was the current law.

It was what the Eighth Circuit had described the law as.

However, when section 924(c) was enacted, the Bailey case makes it clear that possession, mere possession was never a crime and, in fact, to the extent that there is any such thing, or ever was any such thing as possession of a weapon near drugs, that's a--

Unknown Speaker: But a decision by this Court, you know, it is... it speaks finally to what the law means, but it doesn't simply change the legal world that existed 3 years before, where several courts of appeals may have said exactly the opposite.

Mr. Smith: --That's correct, Your Honor, but what it does do is create a class of defendants who are in prison for acts that Congress has never made into a crime, and--

Unknown Speaker: Well, it seems to me that's an important substantive argument.

I don't think it means the plea is involuntary.

Voluntariness of the plea should be tested by the adequacy and competency of counsel based on the laws that exists at the time.

Then if you want to say that the law has changed and he should be released anyway because it's substantively retroactive, that's another argument, but I don't think it invalidates the plea.

Mr. Smith: --Well, I understand your point, Your Honor, and I would say that in order to test the validity of the plea, the appropriate standard ought to be what the statute actually says.

Once one departs--

Unknown Speaker: May I interrupt?

Isn't the test what the law was at the time, and in your view, what was the law?

Mr. Smith: --The law at the time, Your Honor, was what section 924(c) says.

Unknown Speaker: Yes.

The fact that the court of appeals has misconstrued the law didn't make it the law, does it?

Mr. Smith: No, Your Honor.

The law has--

Unknown Speaker: Didn't we squarely hold that in Rivers?

Mr. Smith: --That's exactly right, Your Honor.

The law has always been, under section 924(c), that mere possession does not violate that code section.

Unknown Speaker: So you wanted this district judge to instruct in the Rule 11 colloquy contrary to the holding of the court of appeals of the circuit in which he sits?

Mr. Smith: Well--

Unknown Speaker: That's what you want these... I guess each district judge would have to just sit back and figure out what he thinks the law is, never mind what his court of appeals says.

Mr. Smith: --Actually, Your Honor, what we're pointing out here is that in these unusual situations, when a Bailey case happens... and they don't happen very often.

Ordinarily the circuit courts are quite effective in doing a... in explaining what the congressional intent is and what the statute actually says.

Unknown Speaker: Well, they won't happen very often in the future, because we will be very, very reluctant to set aside a longstanding misinterpretation by the court of appeals if the consequence is going to be that every guilty plea rendered during that period is invalidated.

I mean, don't you see that as a risk for the legal system?

I certainly would give great second thought to setting aside any longstanding misinterpretation by the courts of appeals.

Mr. Smith: Certainly, Your Honor, if there had been many of those, but the fact is there have not been many.

This just doesn't happen very often.

Unknown Speaker: But we... one of the reasons we grant certiorari on a statutory question is there's a difference of opinion among the courts of appeals, so many of the criminal statutes we decide are here solely because one court of appeals takes one position and another court of appeals takes another, so it's not as if this is going to be limited to the Bailey type situation.

Mr. Smith: Well, except for this, Your Honor, and this is an important distinction.

The thing that makes Bailey different from other statutory construction cases is, this is not just any construction of the statute.

This is the critical... the critical element in the statute, which is possession versus active employment.

Unknown Speaker: Well now, most statutes have several elements, you know.

You have a certain intent, a general intent, mens rea... now, the next lawyer who comes before us for the city is going to say, well, it's the intent that's the critical element.

You really can't say that one element is more critical than the other, can you?

Mr. Smith: Well, I... no, Your Honor, I'm not saying that one element is more critical than the other.

What I am saying, however, is that when the critical element has been misapplied, as it was in this case--

Unknown Speaker: Well, why do you say this... this particular element, possession, that sort of thing, is critical, whereas there are other elements of the crime, too, the intent with which you have to do it.

Mr. Smith: --Yes.

That's correct, Your Honor.

Unknown Speaker: So they're all critical?

Mr. Smith: Well, I can't say whether they're all critical until I would see them, Your Honor.

Unknown Speaker: Well, isn't it true that that would be... of every essential element... imagine the case going to trial.

The judge charges the jury, in order to convict you must find A, B, and C.--

Mr. Smith: Yes, Your Honor.

Unknown Speaker: --So one is no more or less important than the other, but it's what the law calls an essential element, something the jury must find.

Mr. Smith: What makes up the crime when you put them together, and I would distinguish this from the situation where a court determines, for example, that an affirmative defense might or might not be recognized.

Additionally, Your Honor... and Justice Scalia, to respond to your concern... when cases such as this are sought to be reopened at the district court level it's not, certainly, an automatic situation where there would be, the guilty plea would be set aside.

The district judge would have to take into account all of the facts, as he's, or she is entitled to do under 2255, and determine--

Unknown Speaker: Well, if your rule is that the plea is involuntary if he doesn't know all of the correct elements, all of the correct definition of the elements of the crime, then it seems to me the district judge doesn't have much to do.

Mr. Smith: --Well, except, Your Honor, what--

Unknown Speaker: So I hope we can get beyond this.

It seems to me that the plea is clearly voluntary based on the law at the time.

Now, if you want to say that it should be set aside in any event because the law has changed, that's quite a different argument.

And I might just point out, you did not raise the involuntariness point as... in your petition for certiorari, did you?

Mr. Smith: --The invalidity of the plea on the basis of the inaccurate description would, I believe, fit within the second question, although it's not specifically described there, so Your Honor is correct in that regard.

This--

Unknown Speaker: Mr. Smith, there... this petitioner took an appeal, did he not, after the guilty plea?

Mr. Smith: --He did, Your Honor.

Unknown Speaker: And he was convicted not only of this 924 charge, use of a firearm, but also of a substantive drug offense.

Mr. Smith: Yes, that's correct.

Unknown Speaker: The appeal was from the conviction of the substantive drug offense, I take it.

Mr. Smith: Yes, it was.

Unknown Speaker: And the petitioner did not appeal from the 924(c)--

Mr. Smith: Correct.

Unknown Speaker: --conviction and sentence.

Mr. Smith: That's correct.

Unknown Speaker: So presumably that was waived, and at the time he chose not to appeal, assertions were being made all over the country by defendants that 924(c) did not... was not a mere possession statute.

I mean, those claims were being made across the United States, but this defendant did not raise that issue.

Mr. Smith: Correct, Your Honor.

Unknown Speaker: So it was waived.

Mr. Smith: Well, I--

Unknown Speaker: Now, is he stuck with that waiver?

Mr. Smith: --I would argue that he did not waive it, but if it were determined that he did based on Your Honor's position, I would argue that he should not be stuck with that for three important reasons.

First, the notion of procedural default, which is what it's been labeled, in a sense this is bringing it full circle and perhaps makes a somewhat perverse use of the doctrine, because here's a defendant who's attempting to establish his actual innocence, and what's placed in front of him is a procedural bar that prevents him from establishing that.

When a defendant is in this situation where the statute as interpreted now makes it clear that his conduct simply did not violate the statute, the notion of default should not be applied, and the notion of cause, as that's been found in this Court's prior jurisprudence, certainly should be found because of the string of Eighth Circuit opinions which would have prevented Mr. Bousley from knowing that he had the opportunity to bring this, as well as what the trial court told him.

Unknown Speaker: Mr. Smith, I think we often apply the doctrine of procedural default when its consequence is to exclude a claim of actual innocence.

I mean, that's not at all unusual.

Mr. Smith: With this case, however, it's different, Your Honor, in that what we're speaking here about is the critical element of the crime.

That's what's different.

Those... the cases that have been--

Unknown Speaker: It's no different.

I mean, in some cases... let's assume a witness was improperly excluded by the trial court and that witness would have shown the nonexistence of one of the elements of the crime--

Mr. Smith: --That's... that's--

Unknown Speaker: --and you know, if it hasn't been raised on appeal, and he says I'm innocent, and this witness would have shown I'm innocent because one of the crucial elements of the crime didn't exist, we would say, well, you should have... you know, we have a trial system and you have to play by the rules.

Mr. Smith: --It's quite different, Your Honor, however, when the actual element of the crime is one that's never been enacted by Congress, and which forms the basis for the petitioner's imprisonment, is something that's never actually been a crime at all, and that's the situation that we have here.

Unknown Speaker: But in the hypothetical I gave you he is going... gone to jail for doing something that Congress did not say is a crime.

Mr. Smith: I--

Unknown Speaker: Because one of the elements that Congress prescribed was not... you know, he was not given a chance to deny it.

Mr. Smith: --The difference, however, Your Honor, is that as a matter of process and procedure here it's clear that the district court was applying the improper element from the very beginning and the explanation was improper from the very beginning.

Unknown Speaker: Yes, but the defendant could have taken the position, as many defendants all across the country were doing at that time, that the statute meant something else, and he could have preserved his right to challenge that throughout.

I mean, that was happening all over the country, but this defendant didn't do that and I think that leads us to the question whether he should be held to the waiver or the procedural default.

Mr. Smith: I'd say two things.

There's an important principle which is that, because this defendant is actually innocent here of the charge, he ought not be held to the waiver.

There's also a very practical problem with taking the position that he should have raised this on appeal when there was uniform Eighth Circuit precedent to the contrary.

If the Court wishes to encourage guilty pleas and to encourage people to accept settled precedent, the appropriate thing to do is to accept the law as it is and in these unusual circumstance, when it turns out that there have been a series of mistakes made, to allow the remedy which Mr. Bousley seeks here, the remedy of habeas corpus, rather than saying to defendants, bring up these appeals every single time you have the opportunity, don't take guilty pleas, don't accept the law as it is, constantly challenge it.

Unknown Speaker: What about the other side of the bargain?

I mean, the prosecutor didn't appeal from the amount of drugs that the judge determined in part because there had been this bargain on the 924(c).

If you are right, doesn't that have to be reopened, too, so that the prosecutor has a chance to contest the amount of drugs?

Mr. Smith: I would not agree with the notion that it should be reopened because there has been a full blown hearing at which there was an opportunity to present all the relevant facts.

In an appropriate case, however, the district court may determine that some remedy along the lines that you describe would be appropriate.

Unknown Speaker: But didn't the Government say, in this very case, that the reason we didn't appeal on the drug part of the... at least in part was that we had this defendant on the 924(c) charge?

Mr. Smith: So the Government says now, Your Honor.

However, the Government has not pointed out any basis upon which an appeal from that factual finding could have been made and, indeed, there was already an appeal made by the defendant on that very issue, that is, the drug quantity and the propriety of a sentence--

Unknown Speaker: Thank you, Mr. Smith.

Mr. Dreeben, we'll hear from you.

Argument of Michael R. Dreeben

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

The decision of this Court in Bailey, interpreting the use element of the section 924(c) offense, gives rise to a variety of fairly complicated legal issues involving whether Bailey is a new rule under the Teague decision, would affect the guilty plea the petitioner entered... has in this case, and whether petitioner is a... is subject to procedural default that he must overcome in order to get collateral relief.

Unknown Speaker: Mr. Dreeben, it seems to me that you exaggerate the extent to which Bailey makes this a unique case.

As the Chief Justice's question suggests, if the Government takes the position it has taken on the validity of the plea agreement, it seems to me that position will have to be applied not just in a case like this where the circuits were at one time virtually uniform, but in the case of any circuit split you would have to invalidate all of the plea agreements in that half of the circuit split that ultimately loses, because the district judges in that half of the circuits will have been instructing the... in the Rule 11 colloquy according to the law of their circuit, and would not all of those plea agreements be invalid whenever it turns out that the element of the crime in question is as the other circuits have said?

Mr. Dreeben: Justice Scalia, that has, in fact, been the practice that the lower courts have followed when this Court has rendered a decision that cuts back on the reach of a Federal criminal statute as compared to the view that had prevailed in the lower courts.

Unknown Speaker: Let me put it this way.

Has it been the practice of the district courts uniformly to say that the guilty pleas were involuntary, which is the position you surprisingly take in your brief?

Mr. Dreeben: That issue has not been litigated in that fashion, Justice Kennedy, so I can't say that there are a huge number of cases that address it in one way or the other.

Unknown Speaker: To take the example that again the Chief Justice gave, I think it was in Ratzlaf that we held the defendant had to have knowledge of the banking regulation.

Under your view, a) all of those pleas that were previous to that are... were involuntary and, second, even if they're not the convictions are void, so I assume that all the fines have to be given back.

Is the Government going to give back all the fines?

Mr. Dreeben: Well, by and large, Justice Kennedy, the lower courts, when confronted with guilty pleas that were entered under a serious misunderstanding of the law, have left the defendant out of the plea subject to the inquiry that we think is critical in this case, which is whether the defendant can establish that, under the correct interpretation of the law, he is actually innocent.

Unknown Speaker: So they'll all have to go back and reconstruct a factual situation that may have occurred years ago.

I can imagine the petitioner taking this position, but I'm surprised to see the Government taking it.

Mr. Dreeben: Chief Justice Rehnquist, we have taken a position that we think balances the fundamental interest in obtaining convictions under a correct understanding of the law with the interests in finality that we share with the courts.

Under section 924(c), we advocated for many years a position that in essence permitted us to obtain convictions based on a showing of possession of a firearm near guns.

This Court unanimously rejected that position.

Unknown Speaker: Near drugs.

Mr. Dreeben: Near drugs.

Near drugs.

Thank you.

This Court unanimously rejected that position.

We were left with quite a few convictions that we had obtained without ever proving the essential element of active use and which guilty pleas have been entered with the defendant never having conceded that element and the question is, what happens to those convictions in which the Government has not established and the courts have never determined whether an essential element of the offense was satisfied?

In our view, the progression of analysis here leads to the following conclusion.

The decision of this Court in Bailey says what the statute always meant.

It doesn't say what the statute meant from the date that this Court decided it, and we're prepared to accept that consequence, which means that, as to the convictions that we obtained before, there is the possibility, although not a certainty, that defendants may have either been pleaded guilty or been convicted based on conduct that is not a crime and that, to us, raises a question that ought to be available to be considered on habeas corpus if there's a statutory basis for asserting it.

Unknown Speaker: Well, that's one way to go, and another way to go is to adopt the rule that when you plead guilty to the text of a statute, you take your chances as to whether the interpretation of that statute that you have assumed is correct or not.

The mistake of law is washed out by your agreement.

That's what a voluntary agreement is all about.

Mr. Dreeben: That is certainly true, Justice Scalia.

Unknown Speaker: It would be different if the... you know, if the court or your lawyer told you something that was contrary to what seemed to be the law in the circuit at the time.

Mr. Dreeben: But the circuit law at the time doesn't define what the crime is, and the premise of using a guilty plea as a basis for incarcerating an individual is that the individual has conceded that he is guilty of the elements of the crime.

If the defendant never gets an adequate explanation of what the elements are either from his lawyer or from the court, it's very difficult--

Unknown Speaker: Well--

Mr. Dreeben: --to say that that plea knowingly concedes guilt of the offense.

Unknown Speaker: --Well, Justice Holmes said that law is what the courts say it is, and he wasn't speaking only of this Court.

I mean, the idea that there's some sort of an abstract law up there in the sky that is finally delineated by this Court is... really doesn't correspond with reality in many senses.

Certainly, this Court is the final expositor of the law, but there are all sorts of other courts in the meantime that are handing down decisions saying what a particular statute means, and the idea that when we say it means this, that everything that happened in the past is simply washed out is, I think, extraordinary.

Mr. Dreeben: Well, we don't think that everything that happened in the past is washed out by any means.

There is a judgment of conviction on the books, and the petitioner has the burden of explaining why it should be set aside, even though he did not challenge the issue that he now raises at the proper time, and for that reason we think two things are true.

First, Congress is the one who determined what the elements of 924(c) are, and this Court said so in 1995 in Bailey, so that decision explained what the law was from the time that Congress enacted the statute.

But petitioner had the burden of bringing that issue to the attention to the courts at the timely way that the procedure of the law provides for him upon pain of procedural default and he did not do that here, so our position is that unless he can overcome his procedural default by showing either cause in prejudice or actual innocence, his conviction stands and the past--

Unknown Speaker: Well, he says actual innocence.

He says, I didn't... here were these drugs... here were the firearms in the closet.

That's what the factual basis showed.

Mr. Dreeben: --That's right, Justice--

Unknown Speaker: Actual innocence, he says.

Mr. Dreeben: --That's his claim.

Unknown Speaker: Right.

Mr. Dreeben: And it is a narrow claim--

Unknown Speaker: Can that be defaulted or waived, that problem?

Mr. Dreeben: --The actual innocence... I think it's very important to focus on this.

Actual innocence in our view is not an independent, freestanding legal claim that he has the right to bring into court.

It represents, as this Court said in the Schlup decision, a gateway that permits him to present a court... to a court a defaulted claim that would otherwise be permanently barred from judicial cognizance on 2255 or habeas corpus.

It is the last safety valve in the system for a defendant who was a--

Unknown Speaker: Well, does it... can he get through that gateway in a situation where people all over the country were challenging 924(c) on what it meant... hadn't been successful, but they were challenging it, and he chose not to.

He didn't appeal on this ground.

Mr. Dreeben: --That's right.

Unknown Speaker: He appealed on something else.

Now, should we open this up now--

Mr. Dreeben: Well, I think--

Unknown Speaker: --when he made that choice?

Mr. Dreeben: --That, Justice O'Connor, constitutes his default.

He should have done that.

He did not do that.

But once a defendant does procedurally default on a claim, they can get it into Federal court on 2255 under this Court's decision in United States v. Frady only by making one of two showings.

First, they can show cause for their default, prejudice flowing from the error that they claim, and we say in this case he has no cause for not raising it.

As Your Honor has pointed out, defendant's were raising this issue all over the country.

He could have done that.

He elected not to.

It's a default, and we think that the court of appeals was correct in saying that he did default his claim.

But there is a safety valve above and beyond cause and prejudice that this Court articulated in Smith v. Murray and in Murray v. Carrier and other cases that says that even when a defendant has defaulted his claim, if he can make a colorable threshold showing that he is actually innocent of the offense and it is only as a result of the error, the constitutional error that he claims, that he remains in prison, a habeas court can reach the merits.

Unknown Speaker: Does it have to be a constitutional error?

Suppose we don't... I don't think this is a constitutional error.

What's the constitutional error here?

Is this a violation of due process here to hold an innocent man?

Mr. Dreeben: No, Justice Kennedy.

I think that we may disagree on whether there is a constitutional error with respect to the voluntariness of the plea.

That is the constitutional error that we have identified that he can raise on 2255.

The statutory claim--

Unknown Speaker: Well, that's not linked to the actual innocence gateway exception that you just applied.

Mr. Dreeben: --The first thing that any defendant needs to show if they want to get in the door on 2255 is either a constitutional claim or a statutory claim that is cognizable in 2255 proceedings.

We don't think he has any statutory claim that's cognizable on 2255 because he did plead guilty.

Unknown Speaker: So what's the constitutional violation?

Mr. Dreeben: The constitutional claim is that in order for a defendant to enter a valid guilty plea which waives his privilege against compulsory self incrimination and his right to a jury trial, he must have an adequate understanding of what elements of the offense he's admitting to.

Unknown Speaker: So we go back to the very beginning.

Mr. Dreeben: We go back to the premise that when Congress enacts a statute that tells us what the elements of the crime are, and if that defendant didn't get any notice of that, his plea of guilty is not a reliable basis for concluding that he is guilty.

If the judge says, this statute has elements A, B, and C, do you admit that you did these elements, and he says yes, I do, judge, there's no question my conduct satisfies that, but the statute actually contains element D, which is an element of his conduct that has never been explained to him and that he does not admit doing, the guilty plea does not represent a reliable determination that he is, indeed, guilty of the offense.

Unknown Speaker: Well, another thing he says in the guilty plea is that he wants to end the criminal process.

He wants to begin that necessary reconciliation to return him to civilized society, and it seems to me that you are very much undercutting the whole purpose of a guilty plea by your argument and that your argument also requires such an arcane and abstract course of reasoning that it seems to cast doubt on the whole question of whether or not our decision is retroactive at all to a final judgment.

Mr. Dreeben: Well, I agree, Justice Kennedy, that there are a number of fairly arcane questions that are built into the analysis in a case like this because this Court has enunciated a number of doctrines that sharply limit and, we think, appropriately so the availability of relief on habeas corpus.

And I am prepared to march through the various doctrines and explain them, but I wanted to state at the outset and at this point that our basic position is that if the defendant's guilty plea doesn't admit to all the elements of the crime because they have never been explained to him, and yet he did not challenge that at the appropriate time, he has a remedy in habeas corpus at present under the present statutory regime if, and only if, he can show he is actually innocent, and--

Unknown Speaker: Does that meant also if he was convicted?

Mr. Dreeben: --Yes.

Unknown Speaker: I mean, how does it apply, how does it apply to a person convicted?

Mr. Dreeben: It applies similarly, Justice Breyer.

There is--

Unknown Speaker: All right.

If it applies similarly, then is it... has it been the practice... you started off with something very important to me.

You said that... I'm thinking of many statutes... drug statutes have words in it like customs orders of the United States.

We had a bribery statute that was all State law bribery is connected with a Federal program.

There are thousands of statutes that have difficult statutory interpretations in them.

All right.

Is it... you're saying that it's common practice until this case, I guess, that where there was an interpretation that was in doubt and a court resolved it, all the courts that had followed previous interpretations to the contrary released the people from prison, I take it, who were convicted at trial under the wrong interpretation and also let them withdraw guilty pleas if they wanted to.

Is that right?

Mr. Dreeben: --Very few people actually get relief under the analysis that we propose, and very few people have--

Unknown Speaker: What has been the practice?

Has... you started out by saying, it has been the practice that those lower courts which followed the erroneous interpretation would automatically let a person, no matter how long he'd been in prison, I guess... he comes in, he says, I want to withdraw my plea now.

Mr. Dreeben: --No, I didn't say that that--

Unknown Speaker: No, but that's... I'd like you to expound on that a little bit.

What has been the practice?

Mr. Dreeben: --For example, when this Court decided the McNalley case and said that the intangible rights theory of good Government did not fall within the mail fraud statute, there were a lot of defendants who had been convicted, some under guilty pleas, some under trial, as to whom the Government had never shown the kind of fraud that this Court held was in the mail fraud statute.

Those defendants were freely allowed to come back into court and attempt to make the case that they were innocent under the interpretation of the statute that this Court said was correct.

Most of them failed, because in the process of proving an intangible rights violation, we most often did prove some injury to money or property that this Court said was the proper definition of the mail fraud statute.

Unknown Speaker: I have no problem with the people who were convicted protesting their innocence all along, had the same rule been applied to all those who pleaded guilty to the statute and in my view took their chances as to what the proper meaning of the statute was.

Mr. Dreeben: There are relatively few cases, Justice Scalia, but I have not seen a single case in which a court said because of your guilty plea you are barred from even coming into court and saying that the statutory meaning changed and what you did is not a crime at the court of appeals level.

There are comparatively few cases before Bailey in which this issue was presented to courts and ruled upon.

I think--

Unknown Speaker: There were cases in the wake of Ratzlaf, were there not?

Mr. Dreeben: --Yes, Justice Ginsburg, there were cases in the wake of Ratzlaf, and I'd have to say that in most of those cases where the Government had obtained either a guilty plea or a conviction after a trial and it had never established the defendant's knowledge of the law, as this Court said was required under Ratzlaf, we didn't object to giving the defendant an opportunity to get some form of relief if, indeed, he could establish that he had a colorable claim of innocence.

Unknown Speaker: Mr. Dreeben, you've made out a perfectly good case for saying that we ought to look at the voluntariness of the plea in the light of the final resolution of what the elements of the crime are, but there is a case for looking at it the other way and saying there is no constitutional violation if, at least under the prevailing or the unobjected to law at the time of the plea, it was properly done.

What's the Government's... what is your best reason for saying we ought to look at it your way rather than look at it the way that if it was okay at the time, no constitutional violation?

Mr. Dreeben: Justice Souter, in most contexts it is the law at the time of the plea that should govern the analysis of the question, and that is because if you look at a case like Brady, in which this Court basically said then existing law governs the validity of the plea, the question that is being asked is, the defendant has admitted his guilt of the substantive offense and now, should we let him after the fact say, in hindsight I miscalculated about what the law might have been, if I had known what the law would be, I never would have admitted my guilt.

And I think the law quite properly says, that's not the kind of claim you can raise.

You must take your chances with what the consequences of pleading guilty might be, or whether you had a good suppression motion that you forewent, but this case is different, because the requirement for the valid admission of guilt that justifies holding somebody in prison in the first place is that he had an idea of what the crime was that he was pleading guilty to, in other words, as this Court said in Henderson v. Morgan, that he had true knowledge of the charges that he was admitting.

This defendant knew that he was admitting possession of a firearm near drugs and he was told that that made him guilty of a criminal offense and he said, I did that.

Those facts are correct.

I'm willing to take a guilty plea.

But in fact, that's not what the law meant, as we now know from Bailey, was required to obtain a valid admission of guilt, so Justice Souter, my distinction is that the core basis for allowing a guilty plea rather than a trial to establish guilt is that the defendant acknowledges that this conduct either was or can be shown to be satisfying of the elements of the offense under a proper understanding.

If he lacks that proper understanding, his admission of the crime is not a valid basis for holding him in prison, and that is distinct from all of the other considerations that he might have viewed in hindsight as impugning whether he would have made that admission.

Here, he never really made it in the first place.

Thank you.

Unknown Speaker: Thank you, Mr. Dreeben.

Mr. Walsh, we'll hear from you.

Argument of Thomas C. Walsh

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

As has been alluded to on a number of occasions already this morning the single most important fact in this case is that this petitioner, pursuant to a plea agreement, pleaded guilty to the gun charge in open court under oath in accordance with the language of count 2 of the indictment, which accused him of the use of a firearm during and in relation to a drug trafficking crime.

Now, guilty pleas are at the core of the administration of our criminal justice system.

Some 75 to 90 percent of cases being resolved--

Unknown Speaker: May I ask you to comment on Henderson v. Morgan?

Mr. Walsh: --Henderson v. Morgan involved a case where the petitioner originally was charged with first degree murder and then, without ever having been recharged, pleaded guilty to second degree murder.

The indictment was never changed.

He was never charged with the offense.

Now, by contrast, here, this defendant pleaded guilty to--

Unknown Speaker: What was the reason this Court gave for saying that the plea was involuntary in that case?

Mr. Walsh: --Because he wasn't apprised of the charge that he was pleading guilty to.

Unknown Speaker: He wasn't apprised of one of the elements of the offense.

Mr. Walsh: Well, it was the offense itself, Your Honor.

I mean, he was charged with first degree murder and he pleaded guilty to second, and the wilfulness aspect of second also was not explained to him, and that was part of the Court's reasoning.

Unknown Speaker: And that's the reason the Court said that there was a violation of due process of law in that he did not plead voluntarily because no one told him of one of the elements of the offense.

Mr. Walsh: No one told--

Unknown Speaker: And we set aside a State conviction on a guilty plea.

Mr. Walsh: --But that's a completely different case here, and let me explain what this defendant knew, because the Government seems to think it's very important what this particular petitioner's understanding was, and that's what Henderson said.

If he has such an incomplete understanding of the elements of the offense, then we have to take a hard look at his guilty plea.

Unknown Speaker: Right.

If there's one element of the offense he doesn't understand, you've got to set aside his guilty plea.

Mr. Walsh: Well, I wouldn't go that far, but--

Unknown Speaker: That's what the opinion says.

Mr. Walsh: --But here, this defendant was charged both with possession of originally 7 pounds of meth... methamphetamine, and with the possession, or with the use of five guns during and in relation to his trafficking in those drugs.

Now, in that scenario, on the drug count alone he was subjected potentially to a level 34 crime which could have brought him 188 months... when you take into account the two level enhancement for the use of the gun, 188 months to 235 months in prison on the drug charge alone.

Now, he was told by his lawyer... and it's in the record.

Pages 133 to 143 of the appendix in this Court show that there was a dialogue between this defendant and his lawyer about the elements of this particular gun charge and the lawyer said, I have told you repeatedly that section 924(c) requires more than possession, and the petitioner wrote back to his lawyer and said, I feel so strongly I am not guilty of the use of a firearm that there is a good chance I would not be convicted of count 2.

That's at page 138 and 139 of the joint appendix.

The lawyer said, well, under present Eighth Circuit law I think you would be convicted, but it is your option, if you so desire, to move to set aside the plea and go to trial on that count, and for good reason, as part of a plea bargain, the defendant... the petitioner decided not to do that.

And what did he get in return?

In addition to the fact that the Government did not appeal on the amount of drugs that were found he got the right to contest the amount of drugs with which he was going to be charged, and that ended up reducing the quantity from 3,100 grams to less than 1,000 grams, so instead of looking at a level 34 sentence, he started out with a base offense level of 30.

Unknown Speaker: Mr. Walsh, you're explaining things that went on behind the scenes, but the scene itself in the courtroom was a judge asking the defendant, do you know what you were charged with?

Defendant answers, possession of a firearm.

Judge Murphy then says, okay, if... the indictment charges you with possessing the firearms during a drug trafficking offense.

So in open court he is told by the judge... he pleads to something called possession of a firearm.

The judge affirms that the charge is possessing a firearm.

Mr. Walsh: And at page 28 of the colloquy, Your Honor, the defendant starts to quarrel with the court about what access he actually had to these guns, and the court explains, if you want a resolution of the gun issue and its relation to the drug issue and whether you used the gun, you have a right to ask for a jury determination of that.

Unknown Speaker: Where did she say use the gun?

Mr. Walsh: Well, she talked about the relationship of the gun to the drugs.

Unknown Speaker: She had in her mind that the crime was possession and proximity.

I was not aware that she had at any point used the word used.

Mr. Walsh: She said, I want you to understand that if you want to contest whether the guns are related to your drug trafficking you can go to trial to do that, do you understand.

Unknown Speaker: Yes, related to the drug trafficking, and that's what she explained to him.

Mr. Walsh: Well, that's--

Unknown Speaker: Possession and proximity.

Mr. Walsh: --Which--

Unknown Speaker: Not active use.

Mr. Walsh: --Well, I think that's semantical difference, Your Honor.

I think they were talking about the same--

Unknown Speaker: Semantical difference?

It's what meant the difference between committing a crime and not committing a crime in Bailey, and in slews of cases that were backed up behind it, so it's hardly a semantical difference whether the crime is possession of guns in proximity to drugs and, as explained in the Bailey opinion, actively using the gun.

Mr. Walsh: --If the ultimate issue is whether this defendant knew what he was charged with, clearly the indictment in this case charged him with use, and that's how it's different from Henderson.

If the issue is whether the Rule 11 colloquy was somehow defective, then maybe that's a different issue, but that doesn't raise a constitutional question, and that has been the fault--

Unknown Speaker: Well, it surely does raise the constitutional... Henderson squarely holds, if you do not advise the guilty... the man before he pleads guilty of all the elements of the offense, the plea is involuntary, and that's what happened there, and that's what happened here.

Mr. Walsh: --Well, in addition, Henderson failed to explain the state of the law at the time that the fellow pleaded guilty.

In this case--

Unknown Speaker: Yes, but the state of the law at the time here is what we say it is.

It's not what the district judge erroneously thought it was.

Mr. Walsh: --Well, I... the district judge can't explain the law in terms different than the law of the circuit in which he sits.

Unknown Speaker: He certainly can.

He certainly has a duty to do it if the law in fact is what Congress enacted as we interpret it.

Mr. Walsh: Well--

Unknown Speaker: We squarely held that in the Rivers case.

Mr. Walsh: --Well, that... well, I don't know that that was a holding--

Unknown Speaker: We said there the statute always has the same meaning.

It had that meaning since the date of enactment.

The fact that a lot of courts of appeals, and there were just as many there, had read it the other way didn't cut any ice at all.

Mr. Walsh: --But whether that trumps the rule that the defendant takes the law as he finds it when he decides to plead guilty is a different question, and also--

Unknown Speaker: It's not the law as he finds it.

It's the law as is.

Mr. Walsh: --Well, then that opens up Pandora's box for--

Unknown Speaker: You see, in Henderson the defendant was incorrectly advised by his counsel as to what the law was, and he acted on his advice of counsel and pleaded to a crime that had not been charged.

Mr. Walsh: --But in Broce, in Brady, and the--

Unknown Speaker: Those are not elements of the offense.

Mr. Walsh: --Well, those are misinterpretations of the legal consequences of the plea, and when the defendant decides to take his chances with a guilty plea and save as much as 10 or 12 years off a drug sentence by pleading guilty to a crime that he may not be guilty of by his own acknowledgement in the record... people plead guilty for a lot of different reasons.

He might have wanted to save his family and friends the embarrassment or the humiliation of testifying.

He might have wanted to avoid dealing with his source for these drugs.

He might have had a lot of reasons for wanting to put finality to this criminal episode, and he also was very interested in trying to save as much time in prison as he could, so the fact that at the time he may have miscalculated the consequences of his actions should not allow him 8 years later to come in and--

Unknown Speaker: It's not a question of miscalculating the consequences of his actions.

It's a question of entering a plea without being advised of what the elements of the crime to which he's asked to plea were--

Mr. Walsh: --Well, he--

Unknown Speaker: --by either the court or his counsel.

Mr. Walsh: --Well, he was advised by the terms of the indictment.

He was advised by the terms of the plea agreement that he signed, which is written in terms of use of drugs.

Unknown Speaker: Well, but that... isn't that really an equivocation?

Sure, the word use was employed, but the explanation that was given to him, and the explanation that was presupposed by the statement of factual basis, was not use as we defined it in Bailey.

It was in effect proximity of possession, so that he was not told about use as Bailey described and defined use, was he?

Mr. Walsh: That's correct.

Unknown Speaker: All right.

Now, let me try a different hypothetical.

Let me go part way with your argument, and let me assume that there certainly are some cases in which, if... I'll take a Holmesian view that the law changed when Bailey came down, and I will assume for the sake of argument that there are a class of cases in which we shouldn't disturb the plea simply because the elements were explained improperly, as understood by hindsight.

The distinction I want to test out is this.

I suppose there are... you know, there are infinite varieties of mistakes in the plea colloquys, but one broad distinction would be this.

In some cases, the law is explained to a defendant who wishes to plead in a way that simply does not make it clear what the distinction is between the offense that he's charged with and some related offense, first degree murder, second degree murder, that sort of thing.

In another class of cases, of which this is supposedly one, there is no other offense, so that if he pleads guilty to this kind of... under these circumstances, he's pleading guilty to something which under no possible set of legal facts would be punishable.

Shouldn't a distinction be drawn between those two kinds of plea cases, the argument being that in the first class of cases the public has a... at least an interest in having murderers generally locked up, but there is no discernible public interest, or no serious public interest in locking up people for something which is not a crime by anyone's definition, and for conduct which does not fit within a crime by anybody's definition.

Would you admit that distinction?

Mr. Walsh: Well, no, Justice Souter.

I mean, I would think that the public does have an interest in locking up people who are trafficking in drugs, and even more so people who have--

Unknown Speaker: For trafficking... for trafficking in drugs, that's right, and that--

Mr. Walsh: --and who use guns--

Unknown Speaker: --But that's... but he's not being locked up here for trafficking in drugs.

Mr. Walsh: --Well, he is in part.

Unknown Speaker: To the extent that we are concerned with his lock up, we're concerned with his lock up for the firearms offense.

Mr. Walsh: And certainly Congress could have made mere possession in connection with a drug trafficking offense--

Unknown Speaker: But it didn't.

It didn't.

Mr. Walsh: --It didn't yet, right, but it did provide for an enhancement in the guidelines, so that conduct is recognized as reprehensible, because it gets him two extra levels on his sentence if he's found with guns, even if he's not charged under 924(c).

Unknown Speaker: So you're saying the Government... I don't... I think you're saying that the Government's interest is sufficiently weighty because we can more or less equate a guidelines enhancement with conviction for a separate crime.

That... you don't mean that.

Mr. Walsh: No, but we can take that into account in seeing whether that's conduct that the Government has the right to punish.

Unknown Speaker: It's about 3 years difference, isn't it--

--Right, yes.

--between the enhancement and being convicted of a substantive offense.

Mr. Walsh: 2-1/2 or 3, yes, Your Honor.

I'd like to move, if I could, to the procedural default question, because--

Unknown Speaker: May I ask you just one question also on a procedural line, because I understood your brief to make no distinction, as I thought our cases had, in the so called Teague bar between a procedural issue... I think Teague itself uses the word procedural.

Mr. Walsh: --Constitutional rules of procedure.

Unknown Speaker: Procedure... of procedure, and something that is substantive.

Here we're not talking about any slip or change in the law about procedure.

We're talking about a definition of what the crime is, and I had not seen Teague applied to the substance, as distinguished from the procedure.

Mr. Walsh: Well, to the extent that the Teague progeny have been developed to date, I would agree that there has not been a case like this.

I would suggest that the distinction to date has been between the constitutional rules Teague has addressed and this statutory rule, which this Court has never applied Teague to yet because it's never been asked to.

Unknown Speaker: But we never... don't talk about what the crime is as being a new rule.

Maybe there was merely a misconstruction, but it's not... the notion that... not the common law that you pull down from the sky, but words that Congress used to define an offense, we haven't, to my knowledge, spoken about this Court's interpretation as a, quote, new rule.

Mr. Walsh: Well, under Teague a new rule is one that's not dictated by precedent, and Bailey clearly was not dictated by precedent.

That was a departure from--

Unknown Speaker: So are you urging that we extend... I mean, you've been candid in saying we haven't... we... that Teague itself uses the word procedural.

Mr. Walsh: --Absolutely.

We think this case should be subject to Teague and should be Teague barred, and it's a small step in our view from the cases that have applied Teague so far to prisoners on death row, for instance, denying them retroactive application of constitutional provisions, to this case, which simply says that a new statutory rule won't be applied retroactively.

But if I could talk for a minute about procedural default, because not only did this petitioner commit what we would call the ultimate act of procedural default by pleading guilty, but then it was compounded by his failure to appeal on the gun charge after he was convicted, and the record again shows that he knew what his rights were, but he waived them.

And as Justice O'Connor has indicated, there was plenty of litigation going on around the country, and we agree with the Government that there is no cause for his failure to assert his gun rights on the original appeal.

It was not futile, and even perceived futility under Engle v. Isaac and Smith v. Murray is not cause, so he procedurally defaulted--

Unknown Speaker: Would you distinguish a case like... post Lopez, suppose somebody... direct appeal time is over, applies under 2255 to be released because he was convicted of the crime of carrying a gun within X distance of a school?

Mr. Walsh: --Well, I think as far as procedural default is concerned I would have the same analysis there.

There might be other reasons why someone under that kind of a situation might be--

Unknown Speaker: Well, do you distinguish these two cases, or do you say they're saying too bad, you entered a plea, even though the Supreme Court said that that's not... that can't... not only it's not a crime, but can't be a crime?

Mr. Walsh: --Well, as far as if a statute is held unconstitutional the Blackledge Menna exception might... might... give that particular petitioner the right to set aside the guilty plea, but that's... Blackledge and Menna don't apply to this situation.

Unknown Speaker: How do you deal with the argument made by the Solicitor General's Office that if there... there is, despite the waiver, a gateway for somebody who comes in with a colorable claim of actual innocence?

Mr. Walsh: Well, that would be a novel application of the doctrine of actual innocence, Justice O'Connor.

Never has this Court, first of all, ever applied actual innocence, the gateway or freestanding actual innocence, to a situation in which a man pleaded guilty.

But... and the actual innocence paradigm that's been created by this Court most recently in Schlup just simply doesn't fit the situation where you have a plea of guilty, because in that case, for instance, the defendant--

Unknown Speaker: If this defendant had gone to trial and been convicted, would you be here making this same argument, or would you say under these circumstances that person could come in with his claim of actual innocence?

Mr. Walsh: --Well, he'd--

Unknown Speaker: No guilty plea.

He went to trial.

Mr. Walsh: --He'd have a better claim, but still, this isn't actual innocence at the bottom.

Actual innocence means, I didn't do this.

There's a dead body on the floor, but I didn't do it.

Prototypical actual innocence, as mentioned by this Court in one of its cases is, they got the wrong man.

But what we're talking about here, at best, is what the Court has described as legal innocence, or technical innocence.

What it really is is a claim that the evidence was insufficient to support the conviction, whether obtained by a guilty plea or by jury verdict.

This--

Unknown Speaker: Well, I think at bottom it's a little more than that.

It was that this statute was misinterpreted by the lower courts.

Justice Harlan in Mackey and in Desist confined the retroactivity to conduct that could not be made a crime, flag burning and so forth.

Mr. Walsh: --Right.

Unknown Speaker: Was the reason that he did that because there was an extant body of jurisprudence or understanding that statutory interpretations are not retroactive to final judgments, or was this... do you think this was just the assumption of the law?

Mr. Walsh: I think he just felt that there were certain primary personal rights that were so fundamental that they're beyond the ability of Congress to proscribe.

Unknown Speaker: Neither side has a great case for us on that, on the substantive point of retroactivity of statutory reinterpretations.

Mr. Walsh: That's correct.

It has not been decided by this Court.

We've cited a couple of cases from--

Unknown Speaker: You mean, all those books in my office, this thing has never come up?

Mr. Walsh: --Well, some of the lower courts have refused to apply decisions like Bailey retroactively, relying on the Davis case, but the Davis case is a total... that's a total misapplication of Davis, which was not a retroactivity case at all but a cognizability case, and to that extent, to that analysis we think he's just wrong.

Chief Justice Rehnquist: Thank you, Mr. Walsh.

You were appointed as amicus by the Court, and the Court wishes to express its appreciation to you for your service.

Mr. Walsh: Thank you, Mr. Chief Justice.

Attribution:

The Oyez Project

Featured:

Godinez, Warden v. Moran - Oral Argument

Fri, 09 Jan 2009 14:49:25 +0000

Case:

Godinez, Warden v. Moran

Media File:

92-725_19930421-argument.mp3

Related Transcript:

1992_92_725_argument.xml

Transcript:

Argument of David F. Sarnowski

Chief Justice Rehnquist: We'll hear argument next in No. 92-725, Salvador Godinez v. Richard Allan Moran.

Mr. Sarnowski.

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

Thousands of cases are processed in our criminal justice system in both the state and Federal courts throughout this land each day.

The lesser number involve the issue of whether or not a defendant is competent to proceed to trial.

In this case the Ninth Circuit Court of Appeals in Federal habeas corpus review of a state court conviction and the imposition of three death sentences concluded that there is a heightened standard for the determination of whether a defendant may proceed to either waive counsel or to enter a plea of guilty, which occurred in this case.

We take exception to that ruling, and that is the issue that brings us here today.

However, there are some underlying findings by the state trial court that I would like to direct the Court's attention to, specifically they appear at page 21 of the Joint Appendix.

At that point the trial judge.

Judge Leavitt, determined that this petitioner, Richard Moran, was in fact competent.

He utilized language which tracked a Nevada statute on point, Nevada revised statute 178.400, which in turn is a formulation of this Court's pronouncement in Dusky.

He also made an express finding that Mr. Moran knew the consequences of his plea of guilty and that he can intelligently and knowingly waive his constitutional right to the assistance of counsel.

In 1988 the judge made additional findings which also appear in the trial record and are before this Court, particularly at the pages D-7 and D-8 of the petition.

Unknown Speaker: Do you say that the finding of knowing and intelligent waiver is a higher standard or a lower standard or indistinguishable from what the Ninth Circuit found was the standard, which was I believe a reasoned choice?

Mr. Sarnowski: Our position in this case, Your Honor, is that once a defendant meets a standard of competence established by this Court in Dusky, then a defendant is competent to proceed either to waive counsel, to plead guilty, or to proceed to trial.

In this particular case--

Unknown Speaker: What do you think you have to show to say that a defendant is competent to assist counsel in his defense?

What do you think that encompasses?

Are there reasoned choices to be made when you end up going to trial and have to be represented by counsel and have to assist counsel?

Mr. Sarnowski: --To answer your second question first, yes, there are reasoned choices that have to be made--

Unknown Speaker: Such as whether to testify?

Mr. Sarnowski: --Yes, Your Honor, that is a critical choice that each defendant if they choose to proceed to trial must make.

If they choose to proceed to trial they must decide whether or not they are going to have a jury trial or have a bench trial in those states which allow a defendant to waive a jury trial.

Those are critical determinations that the defendant has to make.

They are, in our estimation, equally important as to a defendant's cause as is the decision by a defendant to waive counsel or to plead.

Unknown Speaker: Well, do you think then that in order to determine whether a defendant is able to assist counsel in his own defense that the determination of mental competence of necessity includes a determination of whether he can make a reasoned choice?

Mr. Sarnowski: We believe that is correct, Your Honor.

In this case two psychiatrists examined the defendant and expressed their opinions in terms of Dusky, the Dusky standard.

Neither expressed a view that he was incapable of either assisting counsel or proceeding to trial.

Unknown Speaker: Did the trial court ask the wrong question and reach the right answer or did it ask the right question and reach the right answer, in your opinion?

Mr. Sarnowski: We believe that the trial judge, Judge Leavitt, both asked the correct question and received the answer which was in context and directly addressed to the judge's question both--

Unknown Speaker: It's not altogether precise, it seems to me, when we're concerned with the competency to waive that you asked about competency to stand trial.

It's just a little bit different question.

I understand the point, that competency to stand trial may indicate a level of mental stability that's sufficient.

Mr. Sarnowski: --It is our position that if a defendant is assessed and it is determined by the trial court that he has a factual and rational understanding of the proceedings, that he has the ability to assist, not necessarily that counsel actually is assisting, because as was the case here the defendant ultimately chose not to have counsel, but if he does have that ability to assist he has, he meets the baseline standard which also includes the ability to make a reasoned choice.

He must make a reasoned choice at all stages of the proceedings, and if he at some point in time does not meet a competency standard, then as an officer of the court it's up to his counsel or the prosecutor or up to the court sua sponte to ascertain whether the proceeding should be suspended or not.

In this case--

Unknown Speaker: Is competency comprehended within knowing and intelligent voluntary waiver?

Would it be satisfactory for a judge to say before I allow you to plead I'm going to insure that your plea and the waiver of rights is knowing, intelligent, and voluntary?

Would that suffice in a case where we have some question about competency?

Mr. Sarnowski: --I believe that the judge has to independently ascertain that the defendant is competent and--

Unknown Speaker: So that's different than knowing and intelligent?

Mr. Sarnowski: --Yes.

But in the sequence of events that may well happen a judge may proceed on a Boykin canvas or a Faretta canvas in terms of a defendant waiving counsel and ascertain that a further inquiry into competence is necessary.

The competence evaluation does not necessarily occur first in every instance.

Here the totality of the circumstances that faced the trial judge understandably did not peak any further inquiry once he had made his conclusion.

It has to be noted from the record that both trial counsel appointed to represent Mr. Moran in these two separate incidences were present in court up to the time that the judge made his finding that Mr. Moran was competent.

And in fact at the conclusion of the competence determination before the judge allowed them to be discharged the record clearly reflects that he asked them if they had anything to say to the court or to address the court and they chose not to and indicated that the judge had covered what was necessary.

At that point in time the judge had fulfilled the requisite requirements under Dusky.

However, the question before us is did the Ninth Circuit standard require a baseline of constitutional due process for those defendants either waiving counsel or pleading guilty which is higher than the baseline this Court established in Dusky.

It is our contention that no such standard is required by the pronouncements of this Court, nor should one be applied for there are several problems that ensue because of it, the first and not the least of which is if you require a defendant to be more competent to waive counsel in some instances you do not allow a defendant to exercise the parallel right to represent himself, which this Court clearly set out in Faretta.

The second--

Unknown Speaker: The court of appeals said they weren't bound by the results of a state court hearing because they applied the wrong standard?

Mr. Sarnowski: --That's correct, Your Honor.

Unknown Speaker: And they said that their standard of reasoned choice is a higher standard?

Mr. Sarnowski: Yes, that's what they said.

Unknown Speaker: So they must have thought it was.

Do you think it's... if the court hadn't said so would you think it's a higher standard?

Reasoned choice?

Mr. Sarnowski: No, we would not.

As I indicated earlier, each defendant throughout the process has to make reasoned choices.

They may not be a choice you or I would make if we were standing in his shoes or they may not be the choice that with hindsight we would say was the best choice available to him, but it's the defendant's choice.

In fact in noting the opposition to our initial petition for certiorari the respondent in this case indicated that it was merely a matter of semantics as to the argument involved and that our petition did not present a question that this Court should consider.

However, it is very clear--

Unknown Speaker: Well, it set aside a state court... it refused to follow a state court finding that otherwise it should have.

Mr. Sarnowski: --Your Honor, the Ninth Circuit relied on a premise that merely because the state courts applied an incorrect standard as far as the law is concerned that its factual findings were not due any deference, and we would certainly take issue with that.

The facts are what they are, regardless of the applicable legal standard.

It is clear that this Court's pronouncements in Maggio v. Fulford and Miller v. Fenton require deference by the Federal courts to findings of historical fact for state criminal defendants.

That did not occur in this case, and in fact we would go so far as to say that the circuit court panel considering the case substituted its own facts for those not found to be weighty in the state court system.

For instance, they relied on certain extracts from a Physicians' Desk Reference and noted that certain medications that the defendant was using at the time of his plea had certain properties.

Unknown Speaker: But they were looking at it from the standpoint of their standare.

Mr. Sarnowski: That's correct.

Unknown Speaker: Which you say was wrong.

If it's supposed to be a higher standard you say they had no business applying a higher standard.

Mr. Sarnowski: Regardless of the standard to be applied they should not have substituted its judgment and allocated different weights than the state courts.

In this particular instance the state trial judge when he conducted the post conviction review hearing in 1988 expressly declined to find that the mere fact that the defendant was under the influence of some prescription medications had any significant weight, and as a matter of fact he found that the defendant had failed under state law to bear his burden of proof to show that that had any medical significance in that--

Unknown Speaker: Do you think this argument you're making now is within your question presented, the single question presented?

Mr. Sarnowski: --We believe... yes, Your Honor, in this sense.

Unknown Speaker: I thought the only question you presented was whether the Constitution requires a trial court to apply a heightened reasoned choice standard to determine competency of a defendant to enter a plea of guilty or waive counsel.

Mr. Sarnowski: That is the question presented.

However, the circuit court's conclusion in this case was inextricably bound to its own substituted facts.

And it is our position that had it not substituted the facts, even under the heightened standard, the defendant in this case could not prevail, and clearly he could not prevail under the standard that we espouse before the Court.

In this instance the trial judge looked at the totality of circumstances to assess the defendant's competence, and only when he concluded that he was competend did he proceed to a very thorough Faretta canvas which appears in this record.

And then and only then did he allow waiver of counsel, and then he proceeded into a very thorough plea canvas which comports fully with this Court's holdings in Boykin and the subsequent cases that ensued as a result of Boykin.

Although the defendant contested the knowing and intelligent quality of the pleas that he entered, those legal determinations were made in the state courts.

And truly the Federal courts never got to the issue because the Ninth Circuit's holding was grounded in its ruling that as a matter of law that the higher standard applied in this case.

It never got to the intelligent and knowing waiver issues.

However, in further response to Justice Kennedy's initial inquiry, once competence is ascertained it is our belief that there are protections built into the system, the requirements that those canvases in both Faretta instances and Boykin instances must be knowing and intelligent, and that together the Dusky standard, the Faretta standard, and the Boykin standard provide the minimal due process that each defendant should have in our system before they are held to account for their actions in a criminal court, be it state or Federal.

If the Court has no further questions I would like to reserve the remainder of my time.

Unknown Speaker: Very well, Mr. Sarnowski.

Ms. Wax, we'll hear from you.

Argument of Amy L. Wax

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

The position of the United States in this case is that a valid finding of competency to stand trial suffices to establish competency to plead guilty or waive counsel.

This Court formulated a test of competence over 30 years ago in Dusky v. United States, and we believe that it is still a workable standard for determining competency to perform all of the functions that a defendant may be called upon to perform in the course of standing trial.

Now there are a number of reasons why this Court should reject the idea that a person can go to trial and yet be unable to waive constitutional rights.

First, that view seriously distorts the meaning of Dusky and the standard of competence to stand trial in this Court's cases.

That standard must be understood in light of other cases of this Court such as Jones v. Barnes that identifies certain decisions that are ultimately for the defendant to make in the course of trial.

Therefore in order to be competent to stand trial an individual must at least have the potential capacity for basic decision making in response to well explained alternatives.

And there is no difference in principle or practice between the choices that confront defendants routinely at trial and the decisions at issue in this case.

Unknown Speaker: Do you think that the tests that we have frequently articulated with respect to pleas of guilty and waivers of counsel, do you know of any case where in such a case we used the Dusky language?

I always thought it was voluntary and intelligent.

Mr. Wax: Well, there--

Unknown Speaker: Isn't that the test?

Mr. Wax: --Right.

Unknown Speaker: That's what you usually read.

Mr. Wax: Right.

We would distinguish between the need to be competent to make these decisions and whether the decisions are knowing and voluntary.

We think they are two distinct inquiries.

Now, a waiver being knowing and voluntary presumes competence.

Competence is a subsidiary finding that needs to be made before a waiver can be knowing and intelligent.

Competence goes to the inherent qualities of mind, the functional capacity of the individual, his skills.

Knowing and voluntary, the knowingness and voluntariness of a waiver goes to information--

Unknown Speaker: So you think in testing out the validity of a plea of guilty then you should not only ask whether it's voluntary and intelligent, but you should go through the Dusky catechism too?

Mr. Wax: --Right.

Well, we think--

Unknown Speaker: Is that right?

Yes?

Mr. Wax: --Yes.

A person has to have been found competent to stand trial generally under the Dusky standard in order to get to the point where he can consider making that choice.

Unknown Speaker: Well, that may be so where competency is challenged, but say in the ordinary case there's no challenge to the competency of somebody and yet, and he wants to plead guilty.

Are you, should you go through the Dusky catechism or not?

Mr. Wax: Well, you're right, Your Honor, there would be, you're correct insofar as you're saying that you don't explicitly need to make a finding of competence for every defendant.

It's only when there is a good, a reason to doubt an individual's competence that such a finding need be made.

But I am speaking of the case where there has been such a doubt.

Unknown Speaker: But even if they go through the Dusky routine and find the person competent, to sustain a plea of guilty you should go, you should go on to find it at least voluntary?

Mr. Wax: Of course.

Exactly.

Unknown Speaker: And intelligent?

Mr. Wax: Yes, but we think that's very different from what the court said in this case.

The Ninth Circuit didn't really say anything about, they didn't question the need to find the waiver knowing and voluntary.

They said that you first need to do an additional inquiry into competence, you need to stop everything and start over again when it comes to competence, make a finding on a distinct standard and then go on and do the inquiry into whether the competency inquiry is, whether the waiver is knowing and voluntary.

Unknown Speaker: Well, Ms. Wax, the Ninth Circuit appeared to be concerned about the fact that the defendant was on medication and the trial court didn't know the effect of the medication, and that the answers were monosyllabic, and so forth.

Would those factors go into determining whether the plea was knowingly and intelligently made?

Mr. Wax: Yes.

In fact we think that they are relevant to whether it was knowing--

Unknown Speaker: They might be relevant to competence as well.

Mr. Wax: --Yes.

Yes.

We would point out, though, that whether the pleas were knowing and voluntarily made is not the question presented in this case.

The--

Unknown Speaker: Well, I'm just trying to find out whether the, some of the things that bothered the Ninth Circuit are appropriately looked at not only in the question of competence but in knowing whether it's knowing and intelligent.

Mr. Wax: --We think they could look, be looked at under both rubrics.

The Ninth Circuit happened to look at those factors when it questioned the competence finding, but certainly with medication you could argue that in fact it goes more to whether it's knowing and voluntary because if you stop the medication then the person might change, and so competence is sort of a baseline state of the person.

We agree with that.

Now, now only is the adoption of multiple tests of competence illogical and unnecessary because decision-making ability really properly is part of the Dusky inquiry, but it also will have tremendous adverse effects on the trial process.

First of all it will endlessly multiply procedures, the procedures that the trial court must conduct.

It will require the trial court to bring the proceedings to a halt and conduct a fresh inquiry into competence every time it looks like the defense needs to make an important decision.

And this will raise all sorts of opportunities for doubt and error--

Unknown Speaker: Ms. Wax, do you understand that that would be necessary even when the man has been determined to be competent in the Dusky sense and also has counsel?

Mr. Wax: --It's--

Unknown Speaker: Most trials you do have a lawyer there, and I had sort of assumed that if you have the lawyer then, having survived the Dusky standard, that's all you need.

Mr. Wax: --Well, if you're asking whether this Dusky standard applies when you have a lawyer and when you don't have a lawyer, we would say it applies under both circumstances.

Unknown Speaker: Well, the Dusky, you have to satisfy the Dusky standard always, I suppose.

Mr. Wax: Yes.

Unknown Speaker: But then I'm asking you whether you think under the Ninth Circuit's holding that when you do, when you satisfy the Dusky standard and when you do have a lawyer you also have to satisfy a higher standard on every other thing that might arise during the trial?

Mr. Wax: We think the Ninth Circuit said that because it said setting aside the waiver of counsel issue, it implied, I think, that if you plead guilty then you need some special capacity to make that choice.

Unknown Speaker: But this is pleading guilty without a lawyer.

Mr. Wax: With or without... we didn't read the Ninth Circuit to say that it only applied because this person didn't have a lawyer.

We see--

Unknown Speaker: Well, would you have the same objection to the Ninth Circuit holding if it were limited in that respect?

Mr. Wax: --Yes, we would.

We don't think an extra competency determination is necessary whether you have a lawyer or whether you don't have a lawyer because competency goes to those qualities of mind you have to possess to go to trial.

The lawyer brings--

Unknown Speaker: One of which is to cooperate with counsel.

Mr. Wax: --Yes.

But the lawyer... to consult with counsel is the phrase in Dusky.

Unknown Speaker: Right.

Mr. Wax: That is a way of measuring a certain mental capacity.

It's a method of summarizing all the mental functions that you have to possess.

It's put in terms of consulting with counsel, but it doesn't mean it only applies when counsel is there.

Unknown Speaker: Ms. Wax, is this case about the standard that should be used or is it really about whether the defendant was entitled to a hearing?

What was the defendant arguing about in the Ninth Circuit?

Mr. Wax: The way the Ninth, we would say that the way the Ninth Circuit decided the case, although they did fault the court for not holding a hearing, we think they did hold a hearing by the way, ultimately the rule of decision here was that there was an erroneous standard for competence applied, and the Ninth Circuit implied that if Dusky really was the standard the findings, at least at the post conviction stage, hearing stage, would have been sufficient to ground a finding of competence.

The Ninth Circuit--

Unknown Speaker: Was that the focus of the attack before the Ninth Circuit?

Mr. Wax: --Before the Ninth Circuit respondent said in fairly crude terms that his plea and his waiver were invalid, and he didn't really parse out the competence and whether it was knowing and voluntary factors terribly well and he didn't specifically argue that the wrong standard was used.

Unknown Speaker: But he did say I should have had a hearing.

He made that very clear, didn't he?

Mr. Wax: That was... yes, that was one of the things he argued.

But the question arises what standard to apply at the hearing.

Unknown Speaker: Subsequently, after you decide whether you need a hearing or not, I suppose you then have to decide what standard you apply.

But isn't that a prior question, and wasn't that the question really raised?

Mr. Wax: Well, our answer is that there was a hearing.

Unknown Speaker: Thank you, Ms. Wax.

Mr. Potter, we'll hear from you.

Argument of Cal J. Potter, III

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

This case is a straight forward application of Westbrook v. Arizona concerning due process where a doubtfully competent defendant seeks to waive constitutional rights such as the right to counsel.

In this instance the general pate and query as to competency to stand trial, to assist counsel, and understand the proceedings is not enough.

Due process requires a specific determination by the psychiatrist as to the defendant's competency to waive counsel.

This is not a case of heightened standards, but context-specific inquiries into the competency to waive counsel.

The trial court--

Unknown Speaker: The Ninth Circuit thought it was applying a higher standard because that's the reason it refused to follow the state court determination.

Mr. Potter: --They did apply a reasoned choice, but it's a higher standard in terms of what their decision was.

But the real critical issue here is the wrong standard was applied, and the wrong standard was that they were dealing, the state court was dealing with a Faretta canvas instead of going through a Westbrook type hearing as a matter of due process.

Unknown Speaker: Well, what is the standard--

--Well, that's a different issue.

You refer to Westbrook as if it were some terribly well known case, a Westbrook hearing.

I mean, I haven't seen Westbrook cited I don't think in 25 or 30 years until now.

Mr. Potter: The whole Sieling v. Eyman case that the Ninth Circuit relied upon is based upon Westbrook and Pate.

And the Pate hearing that came out in the same time as Westbrook, those types of analysis, particularly here where an individual has a question as to his competence, clearly they had done the initial hearing as to his ability to understand what was occurring and his ability to assist counsel.

So the court is on notice at that particular point in time--

Unknown Speaker: Mr. Potter, Westbrook is an unargued per curiam, 1 page long, which really does not get a great deal of precedential deference from our Court.

Mr. Potter: --That is correct, but it's a due process case.

Unknown Speaker: Well, so it's a due process case.

That doesn't make any difference.

Mr. Potter: And it stands for the precedent that--

Unknown Speaker: Well, what about the Massey case which preceded it?

Mr. Potter: --Same thing.

It goes to the voluntariness issue.

Unknown Speaker: That was not a per curiam.

Mr. Potter: That's correct.

But the issues here--

Unknown Speaker: In your submission what is the standard that a trial court should use in determining competency to plead guilty and to waive the assistance of counsel?

Mr. Potter: --It's a decisional competency that's entwined with Johnson v. Zerbst as to voluntariness.

And whether it's a broader inquiry, a focused inquiry, is not the real issue.

It's not whether this is a reasoned choice, although reasoned choices are involved.

I don't think this Court has to reach that issue as to a bright line test.

Unknown Speaker: Maybe we do, maybe we don't.

But what I hear you say is that you're backing away as quickly as possible from the reasoned choice standard used by the Ninth Circuit.

That's the way I read your brief at page 17.

You're just telling us well, you have to look at everything, make a contextual inquiry, but you don't give us any standard at all.

Mr. Potter: Well, the standard is the reasoned or the voluntariness and the intelligent waiver.

The reasoned choice is the standard that could be applied.

Unknown Speaker: So you think knowing, intelligent, and voluntary waiver includes, comprehends competency?

Mr. Potter: Yes.

And although there is also an actual competency type analysis, under the Pate analysis there is also a due process analysis as to competency.

Unknown Speaker: It doesn't sound to me like you're really defending the judgment of the Ninth Circuit.

You're defending the judgment, perhaps, but not on the rationale that the Ninth Circuit is.

Mr. Potter: The rationale that the Ninth Circuit used is that the state courts used an improper standard.

Unknown Speaker: Yes.

Are you defending that?

Mr. Potter: Yes.

And the improper standard was--

Unknown Speaker: So you say... I though you should answer, you should have answered Justice Kennedy then the standard is reasoned choice.

That's the only one there is.

I'm defending the Ninth Circuit judgment.

Mr. Potter: --Well, there is, that can be accepted as the proper standard.

What we're saying is that their inquiry also deals with, although it says reasoned choice and a heightened standard, it's also a broader standard from the due process standpoint that there has to be a searching inquiry made.

And what was important in this particular case was that the court was aware and had doubts as to Mr. Moran's competency.

They did the initial analysis.

They knew that he had--

Unknown Speaker: So you want us to decide that there wasn't a sufficient inquiry here and therefore to affirm?

Mr. Potter: --Yes.

Unknown Speaker: That's, I suppose that isn't the way the Ninth Circuit went about it, but you want us to affirm on that ground even though you didn't cross appeal their opinion?

Mr. Potter: Well, they, the Ninth Circuit did say that an improper standard was applied, the improper standard being the reasonable choice standard.

But from a due process standpoint--

Unknown Speaker: Why isn't Ms. Wax correct in what she said a moment ago that the voluntary and reasonableness standard which you're pegging your case on now presupposes competence?

And what that looks to is the particular state of mind at the moment of voluntariness based in part upon knowledge of consequences, i.e. of the particular decision.

Why isn't she correct when she says that the standard that you are now arguing for presupposes competence?

It's not a substitution for it.

Mr. Potter: --Because she presupposed in the answer that in fact the individual did not have these other factors, presupposed that--

Unknown Speaker: What other factors?

I'm not sure understand you.

Mr. Potter: --The factors that the court was aware of when they did their initial analysis about the fact that he was competent to assist counsel and had an understanding.

The court was aware at that time--

Unknown Speaker: You mean whether the court is inquiring into competence or whether the court is inquiring into voluntariness it could take account of the medication?

Is that your point?

Mr. Potter: --Yes.

And that was the other factor.

In addition, what Mr. Moran was doing--

Unknown Speaker: Well then why, why then doesn't your argument boil down to what was suggested a moment ago, that you're really not necessarily... number one, you're not defending the Ninth Circuit, and number two, your argument really goes not to the need for a new standard of competence in general but to the need for as particularized an inquiry when there is a waiver of counsel as there is when there is a plea of guilty.

Isn't that what you're really arguing for now?

Mr. Potter: --Yes.

Yes, we are.

Unknown Speaker: But that's not what the Ninth Circuit held.

Mr. Potter: That's correct, Your Honor.

What we're saying is in this insuance that because Mr. Moran was on medication... the competency is already made before the colloquy takes place.

The court is aware that he is on medication, yet unbelievably does not ask what kind of medication he is on.

Unknown Speaker: Well, if it... if we were to decide as a matter of law that the Dusky competency standard was perfectly satisfactory for the original inquiry as to competency and that individual waivers of rights would have to be judged by what the court could look at at that particular time, then ought not the state trial court's findings to receive deference because they did, that court did receive, did apply the correct standard, the Dusky standard which would be applicable?

Mr. Potter: But that is the actual competency and not as to due process.

Unknown Speaker: Well, what's... I don't understand your distinction there, Mr. Potter.

I mean, I don't think the Constitution ever says anything about competency.

It has always been subsumed under the due process clause.

Mr. Potter: Under the voluntariness aspects of the case--

Unknown Speaker: You're really talking about a procedural due process.

Mr. Potter: --Yes.

We're talking about a procedural due process.

Unknown Speaker: That you can't be brought to trial unless you're competent to make the necessary decisions that go along with a trial, but that's the Dusky standard.

Mr. Potter: Well, that's the Dusky standard, but not as to specific and actual decisions.

In this instance under the Westbrook analysis we're dealing with the waiver of counsel.

We also cited the Nevada courts to the application of a Pate type hearing, that when a different analysis, a different decisional type situation occurs that you have to have a different analysis as to whether in fact the individual is competent.

He may be competent to stand trial, but he certainly may not be competent if he's waiving counsel to make those same types of decisions.

Unknown Speaker: Did the defendant before the Ninth Circuit argue for a higher standard for determining competency to enter a plea and waive counsel?

Mr. Potter: We cited Sieling v. Eyman.

We did not necessarily ask for a higher standard.

We asked for a hearing, and because of the--

Unknown Speaker: The focus of your argument was to get a hearing at that stage?

Mr. Potter: --Right.

Because the concern was that they were dealing strictly with Faretta and whether in fact a Faretta canvas, and they weren't dealing with the due process argument of whether in fact we were entitled to further inquiry as to his ability to make this reasoned choice in making his waiver of counsel, also making the decision that he didn't want to put forward any kind of mitigation circumstances.

So clearly he did not have his self-interest.

I believe that--

Unknown Speaker: Do you think that in order to be competent to stand trial, which includes competence to assist counsel in the defense, that that includes a capacity to make reasoned decisions?

Mr. Potter: --Yes.

Yes.

Unknown Speaker: But then you agree with your opposition on that.

Mr. Potter: I'm sorry?

Unknown Speaker: I say then you agree with your opposition in that respect.

I'm surprised at your answer, frankly.

Mr. Potter: Well, in this situation he comes in to waive a decision in terms of the context of when the decision is made.

The initial analysis in this case required a decision about competency to stand trial and a decision to assist counsel.

Then you have a focused inquiry in the context specific as to whether in fact he can make this decision to waive counsel and give up his rights of representation.

So to that analysis it is different.

Unknown Speaker: It sounds like you're back where you were in the court of appeals.

Your complaint here is he just didn't have a hearing.

Mr. Potter: We didn't have a hearing--

Unknown Speaker: Your complaint is that you did not have a particular hearing at the particular time on the particular reasoned decision to be made.

Mr. Potter: --That's correct.

Unknown Speaker: It's not so much the standard that you're worried about.

Mr. Potter: That's right.

We didn't argue a heightened standard.

We did not argue a heightened standard to the Ninth Circuit, nor did we necessarily argue a heightened standard at any juncture in this case.

What we were arguing was that we were entitled to a hearing, that the court, because they knew this individual was on medication, they had already made a determination as to competency--

Unknown Speaker: You say the hearing you got in the state courts was not an adequate hearing?

Mr. Potter: --It didn't focus on the right standard--

Unknown Speaker: Well, anyway, you say it was not an adequate hearing.

Mr. Potter: --As to that issue.

Unknown Speaker: Yes.

And therefore the findings of the state court weren't entitled to deference.

Mr. Potter: The finding would be as to law on the due process issue, and that's the distinction.

There may be a finding as to competency, as to actual competency that might have some kind of deference in terms of the fact finding, but what occurred here was a double barrelled argument.

We were talking about the medication as to actual competency, but we were also saying that we were entitled to a hearing based upon the fact that there was a question as to whether this individual could waive his counsel and whether in fact he was acting in his own self interest.

Our argument was essentially that Johnson-Zerbst invokes a protection of the trial court when the accused is without counsel to assure the voluntariness.

What it said was that there's a mixed fact.

The protecting duty imposes serious and weighty responsibilities upon the trial judge of determining whether there is an intelligent and competent waiver.

And we look to Justice Frankfurter and Jackson statements in Von Moltke v. Gillies about a searching inquiry of the court that there must be an understanding choice.

Now in Westbrook the Court reiterated the distinction between competency to stand trial with counsel and competency to proceed uncounseled.

It required a separate inquiry because Dusky addresses a different question.

Although it may be the same standard, the context specific is what is important, whether in fact you can assist counsel.

Our argument is that the plea to be voluntary must be understood.

Dusky does not answer the same three questions about waiver of counsel, about plea, and the mitigating evidence.

We look to Pate v. Robinson and Drope.

It says that demeanor is not enough.

So the mere fact that the trial court had the individual before them was not enough.

In addition, this Court said in Pate that a 6-year old re-analysis was not sufficient.

Due process does not require this higher standard, but requires a separate inquiry.

Unknown Speaker: Then again it does not require a higher standard, it just requires a separate inquiry?

Mr. Potter: That's correct, and that was our argument that we were asking for in terms of the due process.

Unknown Speaker: Well, I mean, I suppose you can be fully competent and yet not have made an effective waiver because all the facts weren't in front of you or because you misunderstood the consequence, or so forth and so on, right?

It's not even entirely the same issue, is it?

Is it entirely an issue of competence?

Mr. Potter: There is a difference between the actual competence and the specific inquiry as to whether in fact an individual can make decisional matters such as the waiver of counsel and the right to give up his assistance.

In this instance I think--

Unknown Speaker: Your right to a hearing doesn't just go to competence.

If you want a separate hearing on this issue it's not just because you're worried about the person's competence.

You're worried about whether he has been advised as to the consequences of this particular... there are a lot of other things.

Mr. Potter: --Right.

As to the voluntariness.

Unknown Speaker: So it's not really a competence question at all.

It's a question of whether the waiver was effective.

Competence is one element of that.

And you're not asserting that for that one element the standard is any higher than it is for competence to stand trial?

Mr. Potter: We're saying it's a different focus.

Unknown Speaker: Are you saying, Mr. Potter, that, put the Dusky standard here for competence to stand trial, and over here put the inquiry as to whether a particular, say a decision not to take the stand was knowing and voluntary?

Are you saying that there's still some other requirement that has to be met if both of those were met, that at the time the person is asked whether or not to take the stand there must be another competency inquiry?

Mr. Potter: That's what Pate says--

Unknown Speaker: I'm asking what is your contention.

Yes or no?

Mr. Potter: --My contention is yes, if there are factors that show that there's a continuing duty on the part of the court that the individual brings forward some--

Unknown Speaker: So there's a third test that the state has to satisfy?

Mr. Potter: --It's not a third test.

It's a situation of where they have a continuing obligation if additional factors come forward.

In this instance the additional factor that came before the court at the time it's doing this canvas is the situation where he is told that he is on medication.

There is absolutely no question at that point as to what effect the medication had upon him, whether in fact he was, the dosages that he was taking, whether he understood what was going forward.

Unknown Speaker: You agree that there was a general inquiry as to competency at this hearing, do you not?

Mr. Potter: Yes.

And the general questions as to competency dealt only with his ability to assist counsel and to stand trial.

They did not deal with the specific aspect of him waiving counsel, of him deciding that he was entering, going to enter a guilty plea.

Unknown Speaker: Are you talking about the post conviction hearing or at the criminal trial?

Mr. Potter: At the criminal trial or the entry of plea.

At the post conviction they dealt strictly with actual competency and not with this due process aspect.

Unknown Speaker: Well, I thought the challenge was to the, in the post conviction hearing the case was in state habeas, or whatever you want to call it, was that the defendant challenged the voluntariness of his plea.

Mr. Potter: We did.

We also made another argument that in fact we were entitled to a hearing and cited the court to--

Unknown Speaker: Well, you had an evidentiary hearing in the post conviction, at the post conviction stage.

Mr. Potter: --No, in terms of a hearing as to his competency at the time of the plea.

Our argument was that the Nevada Supreme Court had adopted Melacor, the Pate type situation, which required them to go through a hearing, that Pate required them under a context-specific situation to make an additional determination of competency, his competency at that time to waive counsel and enter a plea.

Unknown Speaker: Mr. Potter, a minute ago if I understood you I thought you answered a question of mine in this way, that what was defective in this case was the failure of the court to make the kind of knowingness and voluntariness inquiry upon the waiver or attempted waiver of counsel that would have been required if the defendant had pleaded guilty.

Now I understand you to be saying something different.

I understand you now to be saying that the failure here was in fact a failure under existing law, the existing law being that there is a continuing duty on the part of the court to make an inquiry into competence whenever facts come to the court's attention that might put that competence in question, and that the facts in this case were facts brought to the court's knowledge about the drug use, the medication that the defendant was on.

And so that your claim of error here is that the court did not fulfill its affirmative duty under existing case law to make a thorough inquiry to find out whether the medication had in fact rendered the individual incompetent.

Is that your position?

Mr. Potter: Yes.

We had made a double argument that in fact in terms of the medication that he was incompetent as to actual competency.

We also made an argument that the court was required, upon already knowing that there was a question as to his competency to stand trial and assist counsel because of the fact that he had committed suicide.

So they did a preliminary psychiatric examination.

But in addition to that when they were made aware of the medication we were also entitled to an additional competency hearing.

What really occurred here was no competency hearing at the time that these pleas were entered and the waiver of counsel was made.

Unknown Speaker: Whether or not that's so, it sounds to me as though what you're arguing now is basically that there was an error under existing law.

The Ninth Circuit may have gone off on a tangent which you do not defend, but your position is simply that there was an error under existing law.

Mr. Potter: That's correct.

And the existing law, Sieling v. Eyman, that case encompasses the same thing that Melacor v. the Nevada Supreme Court, which incorporates the Pate type hearing, is the same analysis.

And that was the argument that we made.

Unknown Speaker: If you're not defending the higher standard requirement that the Ninth Circuit insisted on, I suppose if we disabuse them of that we could, we wouldn't need to decide the argument you're making now.

We could remand and you could take it up to the court of appeals, which is what you argued to them anyway.

Mr. Potter: That's correct, Your Honor.

But the incidence in this situation is that they did, the state courts did apply the wrong standard.

We were essentially dealing with an argument about competency to waive counsel, Westbrook, and they were dealing with Faretta.

We were talking about actual competency and they stayed with actual competency and did not do anything with our argument about due process in terms of the Pate analysis.

And those were the arguments that were made.

Unknown Speaker: Thank you, Mr. Potter.

Mr. Sarnowski, you have 4 minutes remaining.

Rebuttal of David F. Sarnowski

Mr. Sarnowski: The Ninth Circuit clearly disposed of this case below by applying the heightened standard.

At page A-27 of the petition the lower court's decision is set forth in which it says that certain observations made by the trial court were inadequate to show that Mr. Moran was competent according to the higher standard of reasoned choice that the law requires.

Unknown Speaker: I suppose it would have had to do that in order to reverse the state court's determination, wouldn't it, because otherwise the state court's determination is subject to deference under 2254(d)?

Mr. Sarnowski: That's our position, Justice Scalia.

Unknown Speaker: You think that's why the Ninth Circuit felt constrained to find a higher standard?

Mr. Sarnowski: I suppose it would border somewhat on speculation on my part, but it would seem that's one reading of their decision.

In this case if the higher standard does not apply, deference must be afforded.

Mr. Potter's argument was that no hearing was held, and that's what they really proffered to the Ninth Circuit as a basis for relief, fails to recognize that a hearing was held.

And although this Court has said that it is not the preferred method of assessing competence to have a hearing after the fact, the fact of the matter is that the same trial judge conducted a hearing and applied the burden of proof to the same party who had the burden under Nevada state law, Doggett v. State, a 1977 case, to show that he was incompetent.

Of course this Court just said last term that it is not impermissible to require a defendant to bear that burden of proof, in Medina.

He didn't bear that burden of proof, and in fact the judge was singularly unpersuaded by his proffer of evidence and his failure to show how the medication impacted the defendant at the time of the entry of plea and waiver of counsel situation.

The Nevada Supreme Court affirmed that.

He had his hearing.

And this Court's recent pronouncement in Keeney v. Thomiel Reyes would seem to say the fact that he didn't present the evidence then requires him to make a showing of cause and prejudice, and he hasn't even argued that, much less shown it.

He should not be given the second opportunity in the Federal courts to do what he had the opportunity to do, but did not, in the state courts.

If the Court has no further questions, I have no further argument.

Chief Justice Rehnquist: Thank you, Mr. Sarnowski.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until Monday next at ten o'clock.

Attribution:

The OYEZ Project

Featured:

Parke, Warden v. Raley - Oral Argument

Fri, 09 Jan 2009 14:49:28 +0000

Case:

Parke, Warden v. Raley

Media File:

91-719_19921005-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Ian G. Sonego

Chief Justice Rehnquist: We'll hear argument next in No. 91-719, Al C. Parke v. Ricky Harold Raley.

Wait till I tell you to go ahead, if you will, Mr. Sonego.

Okay, go ahead.

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

This case concerns Ricky Raley's 1986 conviction as a persistent felony offender under Kentucky law.

That conviction was based on two prior guilty plea convictions.

On the 1981 conviction the record was a plea negotiation form.

Raley filed a pretrial motion to suppress the evidence of those two prior convictions.

At the suppression hearing Raley acknowledged that the plea, 1981 plea was recommitted by counsel and that he was guilty of the offenses to which he pleaded.

The Sixth Circuit ordered a new hearing regarding that plea and resulting persistent felony offender conviction.

The attorney general of the Commonwealth of Kentucky respectfully contends that because a challenge to a prior conviction offered for purposes of sentencing enhancement is a collateral attack the convicted defendant should bear the burden of proof to demonstrate the invalidity of the prior conviction.

The Kentucky Supreme Court has ruled that the validity of a prior conviction under the persistent felony offender law is not an element of the offense, and that ruling should be binding on the Federal court under this Court's opinion in Martin v. Ohio.

Further, the ruling of the Kentucky Supreme Court is fully consistent with the analysis employed by this Court in Lewis v. United States under the Federal convicted felony possession of firearm law.

Unknown Speaker: Well, Mr. Sonego, the Kentucky Supreme Court allows a defendant to make some sort of challenge to the validity of a prior conviction under this statute, doesn't it?

Mr. Sonego: That's correct, Your Honor.

It must be by a pretrial motion and it's a hearing conducted outside the presence of the jury and decided by the judge as a matter of law.

But it's also clear, of course, that the Kentucky Supreme Court believes it is compelled to do so under the opinions of this Court in allowing such a challenge.

Unknown Speaker: So you don't think it was just interpreting Kentucky's, the Kentucky recidivous statute when it said that you can make that sort of challenge?

Mr. Sonego: No, Your Honor, the Commonwealth contends that the Kentucky Supreme Court was viewing itself compelled by decisions of this Court.

We have cited the case of Commonwealth v. Gadd where the court discusses the fact that the prior, the validity of the prior conviction is not an element of the offense itself and believes itself compelled to allow a pretrial challenge in order to comport with due process rulings by this Court.

Unknown Speaker: So the Commonwealth wants something more favorable to it from this Court than they've got even from the Supreme Court of Kentucky, say nothing of the Sixth Circuit?

Mr. Sonego: Well, Your Honor, of course this Court could reverse on much narrower grounds.

Your Honor, the Commonwealth would be happy with a more favorable ruling, but this Court could reverse on more narrower grounds simply by putting the burden of proof on the convicted defendant to show--

Unknown Speaker: As the Supreme Court of Kentucky did.

Mr. Sonego: --That's correct, Your Honor.

That's the primary issue that this Court must resolve today in this case and--

Unknown Speaker: I wonder if there isn't even a more narrow ground than that, because is it not true that the proceeding that we're involved in is a collateral attack on the 1987 conviction?

Mr. Sonego: --It was a habeas corpus proceeding.

Yes, Your Honor, it was a habeas corpus proceeding against the persistent felony offender.

Unknown Speaker: So the question in this case is whether the procedure followed in Kentucky satisfies due process sufficiently to defeat a collateral attack on the 1987 conviction, isn't that correct?

Mr. Sonego: Yes, Your Honor, it is.

It is actually a double-header collateral attack, if you'll pardon my use of that analogy.

We have a habeas corpus attack on the persistent felony offender conviction which in turn was based on the 1981 conviction subsumed within the persistent felony offender conviction.

And I would point out to the Court also that according to Raley's habeas corpus petition filed in this case he was still serving time on the 1981 conviction when he filed that habeas petition.

So clearly he was not attacking the 1981 conviction itself, but only insofar as it resulted in a persistent felony offender conviction.

Unknown Speaker: In fact I'm not sure it is even a collateral attack on the '81 conviction.

It's the contention that in the '87 proceedings it's fundamentally unfair to use the 1981 conviction.

They wouldn't have to set aside the '81 conviction in order to say that was fundamentally unfair one way or the other.

In other words I really think you have only got one collateral attack, and that's this proceeding.

Mr. Sonego: Well, Your Honor, I would be, I would have to agree with you that there should only be one collateral attack, but clearly you are correct in saying that this collateral attack was brought because of the persistent felony offender conviction, not because of the 1981 conviction.

It would appear since Mr. Raley did not attack the 1981 conviction he was satisfied with the result in that situation.

Unknown Speaker: Could a state say that, introduce in the record evidence of a conviction is conclusive proof that the person was indeed convicted of the crime for purposes of the persistent felony offender statute?

Mr. Sonego: Yes, Your Honor, the Kentucky Supreme Court has said that the judgment is sufficient to satisfy the statute--

Unknown Speaker: Well, not... can it be conclusive evidence?

Mr. Sonego: --Yes, Your Honor, it could be conclusive evidence if--

Unknown Speaker: Could a state provide that the record conviction itself suffices?

Mr. Sonego: --Yes, Your Honor, I think the state could provide that by following the analogy of Lewis v. United States in taking the position that a collateral challenge would have to precede the subsequent charge.

Unknown Speaker: So that the status of being a person with a record conviction is all that's needed from a constitutional standpoint to suffice for your being convicted under a statute like the PFO statute in Kentucky?

Mr. Sonego: Yes, Your Honor.

I think the question about whether or not the challenge should be brought prior to the subsequent offender charge being filed has been discussed by some of the Federal courts under the Federal sentencing guidelines, and I think there may be a few states that have--

Unknown Speaker: Does the same answer apply if there is a separate offense for being a PFO?

At that point does the state have some additional burden beyond showing record evidence of the conviction?

Mr. Sonego: --No, Your Honor, I don't think that should make a difference.

Kentucky chooses to employ jury sentencing, and for that reason requires a persistent felony offender charge be included in the indictment.

But I think Kentucky could, if it eliminated jury sentencing, follow something analogous to the Federal sentencing guidelines.

Unknown Speaker: Would your answer be the same if all parties conceded that the prior conviction was obtained through an unknowing plea?

Mr. Sonego: Yes, Your Honor, I think it would.

I interpret the cases of this Court as saying--

Unknown Speaker: What about an uncounseled plea, there is no counsel present?

Mr. Sonego: --Your Honor, I would have to, I would have to say that the precedents of this Court establish that a defendant may attack an uncounseled guilty plea.

Unknown Speaker: Well, why?

What is the difference in the two cases?

Mr. Sonego: The difference is, Your Honor, the defendant presumably has had the advice of counsel and therefore certainly had an opportunity to discuss with counsel the events leading to the guilty plea.

Unknown Speaker: Does the difference depend upon the fundamentality or the gravity of the constitutional violation?

Mr. Sonego: Yes, Your Honor, I think that is an important point to make because the Court has clearly stated the right to counsel is fundamental.

It has been applied retroactively to the criminal cases.

Unknown Speaker: Well, under the hypothesis we're assuming that the guilty plea was uninformed, it was a completely uninformed waiver.

Why is that any different from a case where there's no counsel?

Mr. Sonego: Your Honor, I think the difference is the court has assumed that where counsel is not provided it is more likely an innocent man would plead guilty than otherwise.

Where counsel has been provided then counsel has the opportunity to point out to the defendant his rights and possible defenses that may exist, the opportunity to discuss the evidence that might be introduced against him, and the possible sentences that may result.

The Commonwealth respectfully contends that placing the burden of proof on a convicted defendant making a collateral attack for purposes of sentencing enhancement is consistent with this Court's ruling in Medina v. California, where the Court ruled that the state could require the defendant to demonstrate he was incompetent to stand trial, and that case was also based on Martin v. Ohio.

Unknown Speaker: What's the relevant historical tradition here, do you think?

Mr. Sonego: Your Honor, the history of the precedents of the Court have directed that the denial of counsel is a fundamental right permitting a collateral attack on a guilty plea, and have also indicated that an involuntary guilty plea may be collaterally attacked.

I don't believe the Court has indicated any other basis for a collateral attack.

The Court's precedents, such as United States v. Timmreck, direct attention to fundamental defects in the proceeding that would make the resulting conviction fundamentally unfair and potentially or probably result in an innocent person being convicted.

And certainly probable innocence is an important factor, as this Court has made clear in evaluating the circumstances of a collateral attack.

The history of the precedents of this Court clearly indicate that on a collateral attack the convicted defendant must bear the burden of proof.

That has been clear at least since Johnson v. Zerbst in 1938 and this Court has repeatedly reiterated that the burden for a collateral attack should fall on the convicted defendant who mounts such an attack.

Most recently in Hill v. Lockhart the Court placed the burden of proof on the convicted defendant to establish ineffective assistance of counsel.

This was consistent with the Court's earlier ruling in Strickland v. Washington regarding counsel provided for a trial.

The Court has also made it clear that a collateral attack is not a substitute for an appeal and therefore a higher standard must be applied in that situation.

Within the context of sentencing enhancement it really is a double collateral attack that is being mounted in the proceedings.

Unknown Speaker: May I ask a question about the nature of the burden you think the petitioner would have?

Suppose he gets on the witness stand and says the judge didn't ask me any questions and I didn't understand what the crime was I was charged with.

That's all he says.

Does that carry his burden?

Does it shift the burden to the state to go forward and prove otherwise?

Mr. Sonego: Yes, Your Honor, that could shift the burden of proof to the prosecution, bearing in mind this Court said in Marshall v. Lonberger that the defendant must convince the trial court of the credibility of his testimony, or whatever witnesses.

But I certainly, if I were prosecuting the case, would want to present whatever evidence I had at that point and not take a chance on the judge deciding the defendant was a credible witness.

But certainly, as this Court has indicated most recently I guess in the dissenting opinion in Marshall, in Loper v. Beto, defendant's own testimony certainly opens serious credibility questions.

And I think again the lower Federal courts have also indicated they have serious doubts about the ease with which a defendant may come forward and claim some sort of constitutional violation without any corroboration.

Unknown Speaker: But then what if the only other documentary evidence is that there was no transcript prepared, even though say normally they do prepare a transcript but in his case they didn't?

What more is he supposed to do in your view?

Mr. Sonego: Well, Your Honor, he certainly could present other witnesses such as his former attorney, the former judges, bystanders, Kentucky allows a bystander bill.

A bystander can be able to observe the proceedings since they normally occur in the courtroom.

Things of that nature.

A court clerk may have been present.

Part of the problem, of course, is that, as this Court has noted, there's no time limit on a collateral attack and a collateral attack may go back many years.

Likewise Kentucky has no prescribed time limit on making a collateral attack.

Unknown Speaker: What is the practice in Kentucky about making a transcript of plea hearings?

Mr. Sonego: I understand the normal practice, Your Honor, has been only if an appeal was taken.

Unknown Speaker: I see.

Mr. Sonego: The judge could order it, but otherwise it wouldn't be made.

Unknown Speaker: Mr. Sonego, when you concede that at least a certain quantity of evidence would be sufficient to shift the burden to the state, do you mean that it would be enough to shift the burden of proof or just that it would be enough to shift the burden of going forward in the sense that if there's a prima facie case made and the state does nothing the state presumably is going to lose if the judge accepts the evidence as it appears?

Do you mean then a shifting of the burden of proof or just the burden of production?

Mr. Sonego: Well, Your Honor, in this case the Commonwealth is arguing under Johnson v. Zerbst it should be the burden of proof, but certainly the opinion of the Kentucky Supreme Court seemed to indicate it's simply the burden of producing the evidence.

Apparently Kentucky follows the slightly lower standard at this point.

Unknown Speaker: Mr. Sonego, I, my understanding is that you did not raise below the contention that the entire issue could not be raised on habeas.

Mr. Sonego: The matter of the Boykin warning, Your Honor?

Unknown Speaker: That's right.

Mr. Sonego: Well, Your Honor, the Commonwealth's position is that that was inherent in our argument that Dunn v. Simmons was wrongly decided and is inherent in the issue of which side must bear the burden of proof, because the question becomes how is that burden of proof to be satisfied.

Cases were cited such as Hill v. Lockhart from this Court also indicating that Boykin was not an essential component of a valid guilty plea.

I will reserve the--

Unknown Speaker: Did you make the argument below in the court of appeals that for purposes of Federal habeas corpus this kind of a claim was not entertainable?

Mr. Sonego: --No, Your Honor, that was not a precise argument caption.

We presented--

Unknown Speaker: So you're making an argument here that wasn't made in the court of appeals?

Mr. Sonego: --Yes, in one sense, Your Honor, but we're contending that it was subsumed within the other arguments presented, the argument that Dunn v. Simmons was wrongly decided.

Unknown Speaker: How was it subsumed?

Tell me again.

Mr. Sonego: We contended that the Sixth Circuit's opinion in Dunn v. Simmons was in error, which placed the burden of proof on the Commonwealth.

Unknown Speaker: You mean the state court was in error?

Mr. Sonego: The Sixth Circuit's opinion in Dunn v. Simmons.

Unknown Speaker: Yes.

Mr. Sonego: And by asking the Sixth Circuit to reexamine that ruling we contend that they also had to reexamine whether it fared around a Boykin warning.

Unknown Speaker: I see.

Mr. Sonego: More recently in the McLaughlin case the Sixth Circuit seems to have indicated a Boykin warning is not an essential component of a guilty plea.

Unknown Speaker: May I ask one further, just a practical question?

As I understand, you don't write up the transcript if there's no appeal.

Are the stenographer's notes either preserved on tape or available if they were challenged say within 2 or 3 years?

I can understand how they would be lost if you had to wait 10, 15 years.

But is there--

Mr. Sonego: I believe the Chief Justice of the Kentucky Supreme Court has directed the stenographers to try to save their notes for 5 years, but there is no further evidence in this case.

Unknown Speaker: --And they don't regularly make sound transcripts of these hearings, do they?

Mr. Sonego: Your Honor, I believe that some court reporters do and some don't.

Unknown Speaker: That's up to the court reporter, in other words?

Mr. Sonego: Yes, Your Honor, that's my understanding.

I'll reserve the balance of my time for rebuttal.

Unknown Speaker: Very well, Mr. Sonego.

Mr. Manning, we'll hear from you.

Argument of John F. Manning

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

I'd like to begin by explaining what we think, believe is the proper standard for evaluating this claim.

We believe that it's set forth in this Court's decision in Chapman v. United States.

In that case the Court held that a person who has been convicted is eligible and the court may impose whatever punishment is authorized by statute for the offense, so long as that penalty is not cruel and unusual and so long as the penalty is not based on some arbitrary distinction that would violate the due process clause of the Fifth Amendment.

In this case the Kentucky Supreme Court has definitively interpreted its persistent felony offender statute to turn on the fact of conviction.

As my colleague from the Commonwealth pointed out, that is clear from the court's decision in Commonwealth v. Gadd at page 917.

It says the fact of conviction is what the statute relies on.

The question is whether it is arbitrary for the state to treat somebody as a persistent or repeat offender on the basis of the fact of a prior conviction.

We believe that it is not irrational for the state to do so even if the state is unwilling to allow a collateral attack in which the defendant may raise every issue that he could have raised on a direct appeal of the prior conviction.

Unknown Speaker: May I just ask, because I want to be sure I understand you correctly, you say as a matter of Kentucky law the fact of conviction is the critical thing.

Is that an element of the offense that must be proved beyond a reasonable doubt as a matter of Kentucky law?

Mr. Manning: It does have to be proved beyond a reasonable doubt under Kentucky law and it is proven to the jury.

But this Court's cases have for many years made clear that it is not, it is not dispositive that an offense is, that, I'm sorry, that a persistent felony offender status is determined by a jury and even determined beyond a reasonable doubt.

In Graham v. West Virginia the Court said even though it's charged separately, even though it's decided by a jury, a persistent felony offense is a sentencing factor that enhances the punishment.

It is not a separate offense as such.

And even if it were the question would be the same, whether it's rational for the state to treat some people as persistent offenders and punish them more harshly on the ground that they have prior convictions.

And we believe that it is rational for the state to do so even if, as I mentioned, there is not a full right to appeal.

There is nothing in this Court's cases that says that to treat somebody as a persistent felony offender they have to be retried for their past crimes.

Unknown Speaker: Mr. Manning, do some states characterize their recidivous statutes as being separate offenses as opposed to sentencing enhancing, and if they do are they then required to prove the prior offenses beyond a reasonable doubt or is your answer still the same?

Mr. Manning: It depends on how they... I mean under this Court's cases such as Martin v. Ohio and Patterson v. New York the answer is that it doesn't really matter whether they treat them as offenses as such or as sentencing factors under state laws.

They are free to define the offenses in a manner that treats the prior conviction as such, the fact of conviction as the critical element.

There is nothing in this Court's cases that suggests that the validity in general of a prior conviction must be an element of an offense.

And indeed in response to Justice O'Connor's question, the history is quite to the contrary.

The longstanding tradition was that states would traditionally allow people charged as multiple offenders or treated and sentenced as persistent offenders to attack their prior convictions only on the ground that the prior conviction was entered by a court without jurisdiction over the prior offense, and that is evident from 25 Am Jur at page 266 to 267, 1940, 16 Corpus Juris at 1342, 1918, Kelly v. People--

Unknown Speaker: And is the rule the same if the conviction is uncounseled, if there is no compliance with Gideon?

Mr. Manning: --No, Your Honor.

The rules are slightly different when the conviction is uncounseled, and that's evident from this Court's cases in Tucker and Burgett.

But we believe that the reason that that's so is the right to counsel is on a different plane from typical errors that would impact a conviction.

As this Court has stated many times, the right to counsel goes to the very integrity of the fact finding process.

Unknown Speaker: Is there anything else that's on that plane?

Mr. Manning: Well, we would suggest that the kind of error would have to be a fundamental structural error such as perhaps the adjudication of the case before a kangaroo court or the adjudication of the case before a biased judge, something that went to the very legitimacy of the process and not merely cause one to doubt the reliability of the conviction, but the very legitimacy of the proceeding from which it was rendered.

And that, by the way, brings the Tucker and Burgett line of cases into line with the traditional basis for providing relief from final judgments of the conviction, i.e. that it was rendered by a court that didn't have competent jurisdiction.

Unknown Speaker: What about a case in which the defendant had a lawyer but did not speak English and the lawyer didn't speak anything but English and the judge didn't speak anything but English.

Would that be sufficient to taint the conviction?

Mr. Manning: Your Honor, that... your question essentially is the same as asking whether a defendant can raise a voluntariness claim in general in the context of a collateral attack in a sentence enhancement proceeding, and our answer to that would be no.

We think that the question is whether society can rationally treat a final conviction as conclusive without giving the defendant an opportunity in the run of cases to raise all manner of trial error in the prior conviction.

Unknown Speaker: But in the hypothetical I gave you if the lawyer wasn't there he could--

Mr. Manning: I'm sorry?

Unknown Speaker: --In the hypothetical I gave you the presence of the lawyer would make the difference?

Mr. Manning: The presence... presumably the lawyer... yes, if the defendant has a lawyer then the courts--

Unknown Speaker: Even if the defendant can't communicate with the lawyer?

Mr. Manning: --Well, the lawyer presumably will get an interpreter, Your Honor.

Unknown Speaker: Well, I'm assuming he didn't in the case.

They were busy, you know, some of these courtrooms get pretty busy.

Mr. Manning: Your Honor, with respect, it's always possible to come up with very--

Unknown Speaker: I understand, but your position is right to counsel and that's it?

Mr. Manning: --Well, the court--

Unknown Speaker: Or don't, or no jurisdiction.

Mr. Manning: --Right to counsel and fundamental structural errors that would be equivalent, and we frankly think there are very few.

I would like to point out that whatever the class of errors is, Boykin is far, far from it.

It is a prophylactic error.

It is not... to say that a court has violated Boykin is not to say that it has violated the Constitution.

Unknown Speaker: But what about a plea where all admit that the plea was entered unknowingly and without knowledge of any rights?

Mr. Manning: Again, Your Honor, that would be the same question as Justice Stevens asked, which is whether a state must allow the defendant to raise such a claim.

I mean, if the defendant is... certainly as a matter of state law the state could allow a defendant to raise such a claim, but the question is whether it would be irrational to foreclose a defendant from raising challenges to the voluntariness of his plea in the run of cases and to treat a prior conviction as conclusive of the fact that this person is a repeat offender and deserves harsher punishment than somebody who has not previously been convicted.

The due process inquiry in this case is very, very close to an equal protection question.

You have two defendants, both of whom are identical in every respect except that one of them has never been convicted of a crime before and one of them has a record that has two prior convictions that are regular on their face.

And we submit that under this Court's cases the question is whether it is a rational distinction to punish the second defendant who has two convictions more heavily.

And the answer is, with the exception of fundamental errors in the prior convictions such as the ones that were identified by this Court's cases in Tucker and Burgett, it is entirely rational for the states to make that differentiation and entirely constitutional for the states to implement their persistent felony offender statutes on that basis.

If there are no further questions.

Unknown Speaker: Thank you, Mr. Manning.

Mr. Clare, we'll hear from you.

Argument of J. Gregory Clare

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

This is an extremely important case because it deals with Boykin v. Alabama and the rights of defendants to be guaranteed their constitutional rights.

Every morning at 9 a.m., Monday through Friday, in Louisville, Kentucky in the hall of justice the first floor is swarming with people.

There are eight district courts that line the left-hand side of the courthouse and outside the double doors of each of those courts there are hundreds of defendants waiting their turn.

Unknown Speaker: You're talking about what, Jefferson County?

Mr. Clare: That's Jefferson County, Kentucky, where this plea was taken.

These defendants are charged with everything from speeding tickets, traffic violations, to multiple count felony complaints.

The atmosphere of the courthouse resembles a bus station before the passengers are boarded and the buses are about to depart.

The defendants wait their turn, waiting their turn come from all walks of life.

Most of them, though, are undereducated and from the lower socio-economic background.

Each court has on its dockets 50 to 200 cases.

It goes from 9 o'clock in the morning until 11:30.

Afternoon court starts at 1 o'clock.

There are three to four prosecutors in each courtroom conferencing the cases, there's the judge, a couple sheriffs, and a clerk.

The goal of everybody is to get the cases decided and to move on to the next one.

Unknown Speaker: They have an hour and a half for lunch?

Mr. Clare: They have an hour and a half.

Unknown Speaker: That's more than we do.

Mr. Clare: They usually get an hour if they go up until 12 o'clock.

The pace in the courts is hectic.

The prosecutors and the judge need to finish their docket and to move on.

Because of this there is a strong pressure to plead guilty.

The court wants to clean its docket, the defense counsel wants to get to the next client, and the prosecutor wants to finish his job for that morning.

The only time that the Constitution comes up in all these proceedings is when the Boykin sheet comes into play.

The Boykin sheet sets forth the constitutional rights the defendants have.

Before the court will take a plea it wants a Boykin sheet in that case jacket and it reviews that Boykin sheet with each of the defendants.

The defendant signs on the bottom, the defense counsel signs on the bottom, and the judge signs on the bottom and it is placed in the record.

It lists the constitutional rights and the defendant states in open court on the record that he has read the Boykin sheet, that he is aware of his constitutional rights, and when he is pleading he knows he is waiving them.

This is video recorded in some of the courtrooms, but audio recorded in all of the courtrooms.

Unknown Speaker: Of course he might lie about that just as he would lie about his guilty plea, right?

Mr. Clare: A defendant may lie--

Unknown Speaker: I mean, just to move things along, as you say.

Mr. Clare: --Many times people will enter into a plea of guilty for many different reasons, but the important point here is that on the record he has acknowledged that he is giving up certain rights.

Unknown Speaker: You're painting this as a right somehow so fundamental that it requires the permission of collateral attack in a subsequent proceeding, and I fail to see that it's that fundamental.

I mean, I am sure it's very useful.

I have no doubt about that.

But you're telling us that in order to rush things along defendants are willing to plead guilty, but in order to rush things along they would not be willing to say well, what do you want me to say for the Boykin sheet, of course, yes, I'll say whatever you need said.

I mean, maybe, but I don't see how that's so fundamental that we should allow it to be attacked collaterally.

Mr. Clare: We are collaterally attacking the 1987 conviction, which is an attack at the procedure used by the State of Kentucky.

Justice Stevens stated that I believe you only get one collateral attack here.

The collateral attack is of the '87, not the '81 and the '79 conviction.

Unknown Speaker: Wherein you say their procedure is bad is that it does not permit a collateral attack on the earlier conviction, right?

Isn't that wherein you say their procedure was bad?

Mr. Clare: That, the way... yes.

That's how their procedure is incorrect.

Because Boykin says that if the record is silent as to the waiver of these constitutional rights then it is, that conviction is void.

What the Sixth Circuit done, has done is to follow the line of the waiver of the right to counsel cases, saying that when the record is silent you get a hearing.

There's a presumption against the waiver of those constitutional rights that are inherent in a plea of guilty.

Unknown Speaker: So you think a Boykin violation is on the same level as the violation of the failure to furnish counsel at all?

Mr. Clare: As far as... yes.

A Boykin violation is meaning that the defendant has not been advised of his rights on the record.

There is no guarantee that he is advised of his constitutional rights, and therefore that conviction is void.

Unknown Speaker: In other words you're saying it is enough simply to prove, on collateral attack now, it is enough simply to prove that he didn't get the warnings from the judge himself?

It is not necessary to go further and prove that his plea was in fact unknowing or involuntary?

Mr. Clare: That is exactly what this Court said in Boykin v. Alabama.

Unknown Speaker: Well, Boykin, was Boykin a collateral attack?

Mr. Clare: Boykin was not a collateral attack.

Unknown Speaker: Okay.

And it was dicta too.

To say that something was void is dicta.

Mr. Clare: Boykin did not address the collateral attack and the rights that were being given up in Boykin were fundamental constitutional rights, which is the same thing that is taking place when you enter to a guilty plea and if you waive your right to counsel.

They are fundamental constitutional rights.

Unknown Speaker: Well, Mr. Clare, now this, the defendant after this 1987 conviction could have challenged in a direct appeal any claim that he might have that he didn't waive his constitutional rights, could he not?

Mr. Clare: He challenged his, procedurally--

Unknown Speaker: That was open to him on direct appeal, to challenge?

Mr. Clare: --On direct appeal he went straight from the circuit court on his motion to suppress the entry of the convictions to the court of appeals--

Unknown Speaker: No, I'm talking about the earlier conviction itself when it was handed down.

Mr. Clare: --The '87 conviction?

Unknown Speaker: Yes.

I think he... as I recall it he was charged most recently in Kentucky as a persistent offender.

Mr. Clare: Correct--

Unknown Speaker: And Kentucky relied on two earlier convictions.

Mr. Clare: --That's correct.

Unknown Speaker: Now, on both earlier convictions is it not true that the defendant could have challenged on direct appeal whatever claim he had at that time--

Mr. Clare: Yes, he could have.

Unknown Speaker: --that he didn't understand his rights.

Mr. Clare: Yes.

Unknown Speaker: But he didn't do that.

Mr. Clare: He didn't do that.

Unknown Speaker: And yet you say that now, later, when he is charged with some consequence of those final convictions that now he can still make that kind of a challenge.

That's your position?

Mr. Clare: My position is that this is not now a collateral attack of those convictions.

He is not seeking--

Unknown Speaker: Well, your position is that now, after they have become final, that he can nevertheless reopen the validity of those convictions.

Mr. Clare: --My position is that now they are final and the State of Kentucky wants to use them to prove the present crime of being a persistent felony offender.

They must prove those elements of that crime beyond a reasonable doubt.

When they enter the conviction, at that point he may challenge--

Unknown Speaker: You're saying that the Constitution requires Kentucky to require more than just putting into evidence those convictions?

Mr. Clare: --That's correct.

Once the defendant alleges that the convictions are not constitutionally valid--

Unknown Speaker: But don't the vast majority of states just allow proof of former conviction?

Mr. Clare: --Once the defendant alleged that they were not constitutionally valid and there is not a silent record, the presumption is then in the defendant's favor that he did not waive his constitutional rights, and there is no record there to prove that he did.

Unknown Speaker: Why, who cares?

I mean, you say the presumption is in his favor.

That assumes that it's relevant whether he waived his rights or not.

You say they have to prove it beyond a reasonable doubt.

They have proved beyond a reasonable doubt that he stands convicted of these prior crimes.

The element of the offense is standing convicted of these prior crimes you are convicted of an additional crime.

They have proved beyond a reasonable doubt that indeed he was convicted of those prior crimes.

Your argument is well, he was wrongly convicted of those prior crimes, but that's not an element of the offense.

The offense is that he was convicted and has not by appeal overturned those convictions.

It seems to me the element is entirely proven.

Mr. Clare: The State of Kentucky states it is a conviction.

I do not believe that the state legislature meant that it meant an invalid conviction or a conviction that was not constitutionally valid.

It must be assumed that the legislature when they said conviction, that it meant a conviction that was valid under the Constitution.

Unknown Speaker: I doubt whether the legislature meant the all prior convictions to be retried every time, which is the only way you can know for sure that it was a valid conviction, is to retry it.

It seems to me if it's there on the books and he hasn't appealed, it's a valid conviction.

Mr. Clare, are you attacking the former conviction as such or attacking its use here?

Mr. Clare: I'm attacking its use.

Unknown Speaker: You're not attacking the conviction as such?

Mr. Clare: I'm not attacking the conviction at all.

Unknown Speaker: Isn't that a significant distinction?

Mr. Clare: That is the distinction that I've been trying to establish here.

Thank you for bringing that up.

This, we are not attacking, or he is not seeking relief from the '81 or from the '79 one.

He is not--

Unknown Speaker: It can't be used because it's invalid, isn't that what you're saying?

It cannot be used because it's invalid.

Mr. Clare: --That's correct.

Unknown Speaker: The time to show that it was invalid was the time it was received, by appealing it and getting it set aside.

Let me put it another way.

Is it irrational for the state, you think it is irrational for the state to say that a person who has been lawfully convicted, has failed to take an appeal and the conviction is still on the book, deserves to be punished for a later crime as a repeat offender more severely than someone who does not stand in that situation?

Is that an irrational judgment on the part of the state?

Mr. Clare: That was a long--

Unknown Speaker: I wanted to be sure I wasn't leaving anything out.

Mr. Clare: --The state in the sentencing phases can establish any elements that it wants as long as they are within parameters in order to enhance the defendant's sentence.

This is not the same as like in the Federal sentencing guidelines where they have adopted certain elements to be used in the sentencing phase.

This, Mr. Raley is being convicted of a crime and to prove the crime they must show all the elements, prove all elements.

One of the elements is a conviction.

That's all the state said there, and that's where we go back to the waiver of counsel cases.

And basically what the Sixth Circuit has done is to say under Boykin if the record is silent it is presumed that that conviction is invalid constitutionally, and then they have a hearing.

And the Sixth Circuit's ruling was the hearing should be redone in the State of Kentucky using the correct Federal standard.

Unknown Speaker: I suppose in one sense, under your theory of the case at least, you would still have an argument for the defendant even if we said Boykin is a prophylactic rule, it cannot be alleged on collateral attacks, Stone v. Powell applies.

I assume under your theory of the case you could still argue that the conviction was improper and that Kentucky has therefore not made its case in the 1987 proceeding.

In a sense you don't... Boykin certainly helps you, but it's not essential for you to make this defense, is it?

Mr. Clare: I don't believe I understood that.

Unknown Speaker: Well, in other words you argue in a case that comes up that's like this, even if we had said that Boykin is not available on collateral attack you'd say well, that's irrelevant.

The state has the burden to show that the conviction was properly entered.

Mr. Clare: That's correct.

Unknown Speaker: So in that sense, although Boykin helps you it is not essential to your case.

Mr. Clare: I'm asserting that this is not a collateral, that this is not a collateral attack of those prior convictions.

There are issues raised about Stone v. Powell being a prophylactic rule, first off it was alleged that those could not be addressed here by this Court because they were not raised in the lower courts, were not considered by the Sixth Circuit in their opinion, was not raised in the petition for cert. It wasn't until the final briefs here that that came up.

Unknown Speaker: But if that is so it seems to me that you have to answer the arguments made by Kentucky and by the Solicitor General and indicated, rephrased by Justice Scalia, that the gravamen of the offense here is being convicted of a third offense when you have the status of being convicted of two earlier ones, whether or not those convictions were valid.

Mr. Clare: My response is the same as with Justice Scalia, was that by using the word convict in the statute that the legislature placed in there or assumed, although we cannot assume what they meant because they have to state exactly, but they used the word to convict, and that it would not have been an assumption to use an invalid conviction or a constitutionally invalid conviction.

Unknown Speaker: Well, I would have no problem if the, you know, the Kentucky Supreme Court decided the case on that basis, that when our legislature said convict it meant validly convict.

They are free to say that, that that's what their legislature meant.

But I had thought, in fact I am sure that this case comes up here on the basis that, regardless of what the state legislature intended, the Constitution requires, the Federal Constitution requires that the prior conviction have been a valid conviction or that he be permitted to prove that it wasn't at least insofar as the Boykin issue is concerned.

Isn't that how the case comes before us?

Mr. Clare: That is... yes.

And if they were, if the State of Kentucky, they decided the case of Gadd v. Commonwealth which was based upon Burgett v. Texas, and I believe that the decision of the State of Kentucky, the supreme court there, was wrong when it's not following Burgett.

The State of Kentucky in essence would not allow any defendant to come back and challenge any conviction that was used on the PFO whether or not he had counsel or not under that scenario.

I believe that these rights that you waive when you enter a guilty plea are equal to the right to counsel.

In fact in the case of the Supreme Court of Duke v. Warden you all know that the waiver, or the entering of a guilty plea is one of the most devastating waivers that there is because you are giving up three constitutional rights at one time, and the right to counsel, that you can't put a hierarchy between those constitutional rights.

And if a defendant has waived his right to trial, right to call witnesses, or right to be free from self-incrimination, that those are just as important as his right to counsel.

He should have the opportunity to challenge a guilty plea that is being used to prove a present crime.

Unknown Speaker: Of course he had counsel.

Mr. Clare: He did have counsel in this instance, yes, he did.

Unknown Speaker: Do you think part of your submission is that the guilty plea does not necessarily indicate that he was actually guilty of the offenses?

Mr. Clare: The factual--

Unknown Speaker: Yes.

Well, don't, just the fact that he wasn't advised doesn't mean that he didn't admit that he committed the offenses.

Mr. Clare: --That's almost a distinction between a confession--

Unknown Speaker: I mean voluntariness, the voluntariness requirement doesn't necessarily, if ignored it doesn't necessarily mean that he didn't admit to the offenses and that his admission is valid.

Mr. Clare: --A confession.

It would have been--

Unknown Speaker: Yes.

Mr. Clare: --It could have been equivalent to a confession, which is not the same thing at all as a conviction.

Unknown Speaker: Well--

Mr. Clare: You could confess--

Unknown Speaker: --He did plead guilty, didn't he?

Mr. Clare: --He did plead guilty.

Unknown Speaker: And didn't he, didn't he agree that he committed the offenses charged?

Mr. Clare: With his plea of guilty that is what takes place.

Unknown Speaker: Yes.

But you're not, you're not saying that these convictions were invalid in the sense that he didn't commit the offense, it's just that he wasn't advised properly in pleading guilty?

Mr. Clare: I do not know the specific facts of what Mr. Raley did or whether or not the facts actually constitute the crime.

The record is not there to show and I cannot state to this Court that his plea of guilty was a admission or a confession as to the elements of the crime, because there is not a record to tell me that.

Unknown Speaker: I thought a plea of guilty was always an admission to all the elements of the crime.

Mr. Clare: A plea of guilty is an admission to all the elements of the crime.

Maybe I'm not seeing the distinction that you're trying to make.

Unknown Speaker: Well, are you saying that if a plea is involuntary it may not, it is not a knowing confession or not a knowing admission of all the elements of the crime?

Mr. Clare: Knowing and intelligent.

But the issue here is whether or not Kentucky has created a record so that those convictions may be reviewed later, and that's what Boykin was so insistent upon.

Unknown Speaker: Well, the issue is really whether the Constitution requires Kentucky to have created a record so as to justify a challenge to a conviction.

Mr. Clare: Whether or not Boykin--

Unknown Speaker: I prefer to use the Constitution.

Mr. Clare: --What... the Constitution guarantees certain rights to the defendants, and then Boykin is interpreted to mean that those rights must be told to the defendants on the record and the court has the duty to advise those defendants on the record of those constitutional rights.

But in essence if a defendant has constitutional rights he is not aware of they are not of any substantial use to him.

I believe that is the purpose behind Boykin, to advise the defendants of their rights, and it places a duty upon the court to make sure that he is aware of those rights.

Unknown Speaker: I take it you're contending that the Federal Constitution requires the Kentucky courts in an enhancement proceeding to entertain attacks on prior convictions?

Mr. Clare: The way the--

Unknown Speaker: The Kentucky court did entertain the attack--

Mr. Clare: --Yes, it did.

Unknown Speaker: --and I suppose you contend that the Federal Constitution requires them to.

Mr. Clare: Yes, that is my contention.

Unknown Speaker: And hence, and similarly you think the Federal Constitution requires a Federal habeas court to entertain those claims of the invalidity of prior convictions?

Mr. Clare: In the instance when you're using the conviction to prove a present crime--

Unknown Speaker: Yes.

Mr. Clare: --But the habeas corpus is distinct from that--

Unknown Speaker: In an enhancement.

Mr. Clare: --because it's not being used to convict a defendant of a present crime.

A habeas is a collateral attack for relief but is not establishing any new present crime of a persistent felony offender status.

The State of Kentucky could, the legislature could rewrite their sentencing rules, and if they did we may not be here, but they haven't.

They have used the word conviction.

Unknown Speaker: Mr. Clare, this may be just a problem of terminology, but I'm not sure I agree with you that this is not a collateral attack.

It seems to me that a collateral attack consists of anything that seeks to deprive a prior judgment of its normal effect.

It doesn't have to dissolve the prior judgment entirely, but anything that seeks to deprive it of what would be its normal effect.

So if in a later suit, for example, you seek to deny res judicata effect to an earlier decision that's considered a collateral attack on the earlier decision, if you say it was a wrong decision, therefore it shouldn't be res judicata.

That's a collateral attack, and that's what you're seeking to do here.

You're seeking to say that this conviction, which would normally have the effect of rendering you liable to a higher penalty the next time you're convicted, in this case should not have that effect because it was not a valid judgment.

Why isn't that properly called a collateral attack on the judgment?

Mr. Clare: Well, the collateral attack is used in a habeas proceeding, the distinction that I'm trying to maintain.

Unknown Speaker: Well, I understand that.

It certainly is not, you're correct that it is, it does not undo the whole, every aspect of the prior decision the way a habeas proceeding would.

But the point I make to you is that a collateral attack does not always do that.

There are many other sorts of collateral attacks and it seems to me this is one sort of collateral attack.

Mr. Clare: That may be true and your analogy may be correct, but it is very distinguishable from a habeas proceeding, and that's what I'm... the point is that on the habeas proceeding the defendant may be greatly limited.

But here it is not a habeas proceeding, it's the correct procedure to use in the lower court level when they're proving a persistent felony offender.

And that's the distinction that I'm trying to draw.

The petitioner would have the State of Kentucky allow the presumption of regularity of the prior convictions to overcome its presumption against the waiver of the constitutional right.

We submit that the presumption against the waiver of the constitutional right, as this Court has recognized in the waiver of counsel cases, is a much greater presumption than the interest of having a presumption of regularity for the prior convictions.

It was also discussed the burden of proof that would take place in the hearing if the Sixth Circuit has remanded it back to the State of Kentucky, and what is the proper burden of proof.

Because this Court has said in the right to counsel cases that those convictions are presumptively invalid, we believe that the burden of proof here should be at least a clear and convincing burden of proof.

They have asserted that the burden of proof should be by a preponderance of the evidence and cited Johnson v. Zerbst, but Johnson v. Zerbst was entered long before the right to counsel cases have come into play.

And the right to counsel cases would support at least a clear and convincing standard of proof in placing the burden upon the Commonwealth to prove that the conviction is constitutionally valid.

Thank you.

Unknown Speaker: Thank you, Mr. Clare.

Mr. Sonego, you have 2 minutes remaining.

Rebuttal of Ian G. Sonego

Mr. Sonego: Thank you, sir.

I'd just like to point out again that the Kentucky Supreme Court concluded in Commonwealth v. Gadd that the validity of a prior conviction is not an element that the Commonwealth must prove and concluded that such a challenge had to be entertained only because it perceived opinions of this Court requiring such a challenge.

Unknown Speaker: Can you give us one case for that proposition, Mr. Sonego?

Mr. Sonego: The Kentucky Supreme Court case, Your Honor?

Unknown Speaker: Yes.

Mr. Sonego: Commonwealth v. Gadd.

It's cited--

Unknown Speaker: G-a-d-d?

Mr. Sonego: --Yes, Your Honor.

It's cited in the Commonwealth's brief on pages 21 and 22.

Unknown Speaker: Thank you.

Mr. Sonego: And it specifically states that it's the fact of the conviction which the Commonwealth must prove for purposes of a persistent felony offender.

With respect to the clear and convincing standard of proof, this Court has repeatedly rejected that standard for purposes of habeas corpus proceedings and for purposes of establishing the voluntariness of a confession.

It was rejected by this Court for purposes of sentencing in McMillan v. Pennsylvania, and certainly appears to be inconsistent with Sumner v. Mata.

Finally the Commonwealth would point out that opinions of this Court subsequent to Boykin have never identified a Boykin warning as a fundamental requirement of a valid guilty plea, North Carolina v. Alford, Hill v. Lockhart, United States v. Broce.

If there are no questions.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Sonego.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

Attribution:

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Featured:

Hill v. Lockhart - Oral Argument

Fri, 09 Jan 2009 14:48:36 +0000

Case:

Hill v. Lockhart

Media File:

84-1103_19851007-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF JACK T. LASSITER, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice Burger: Mr. Lassiter, I think you may proceed whenever you are ready.

Mr. Lassiter: Mr. Chief Justice, and may it please the Court, the issue presented in Hill v. Lockhart is rather a technical and narrow issue, but one T think is significant in the daily workings of the criminal courts.

Petitioner William Hill entered a guilty plea in the Pulaski County Circuit Court in 1979 to charges of murder and theft of property.

He received a 35-year sentence on the first degree murder conviction and a concurrent ten-year sentence on the theft of property conviction.

In his habeas petition which he filed pro se, which appears in the joint appendix a: 8 and 9 he alleged that he bled with the understanding that he would receive a 35-year sentence and that he would be parole eligible after serving one-third of his sentence, less good time.

Unidentified Justice: What page does that appear at, Mr. Lassiter?

Mr. Lassiter: It's at 8 and 9 in the joint appendix.

The petition for habeas corpus is set forth there.

Unidentified Justice: Mine only goes to page--

Mr. Lassiter: Eight and 9.

Unidentified Justice: --Oh, 8 and 9.

Mr. Lassiter: I'm sorry, Your Honor.

Unidentified Justice: Thank you.

Mr. Lassiter: He also indicated that his lawyer told him that the Court would impose a 35-year sentence.

He alleged that his lawyer told him that he would be out in six years if he stayed out of trouble.

He alleged that he was not advised of Act 93 which rendered him parole ineligible until serving one-half of his sentence less good time, since he was a second offender.

Unidentified Justice: Does he allege that he had told... or told his lawyer all of his factual background so that his lawyer would know that Act 93 was applicable?

Mr. Lassiter: Justice Rehnquist, that does not appear in his pleading.

At a hearing, if we were granted a hearing in this matter, of course this is not of record, that would be his testimony.

Unidentified Justice: But it wasn't in his petition for habeas that we're reviewing here?

Mr. Lassiter: That's correct.

Of course, our position is that if he didn't tell counsel, counsel should have inquired about that, that that would be part of the diligence that counsel should demonstrate in defending one in a criminal case, and I think we could also demonstrate that at a hearing.

Unidentified Justice: Does the record reflect that Mr. Hill understood when he entered the plea that had he gone to trial he would serve half of whatever sentence was imposed?

Mr. Lassiter: No, the record does not reflect that.

There was no advice from the Court concerning potential parole eligibility if he pled or if he went to trial.

Unidentified Justice: But the law in Arkansas at the time was that had he gone to trial he would serve half of any sentence resulting from a conviction?

Mr. Lassiter: Regardless of whether he pled or went to trial, he would be parole ineligible until serving one-half, less whatever good time had accrued.

Unidentified Justice: As I understand it, Mr. Lassiter, your client here does not make any claim that his guilty plea was not intelligent or knowing.

It is a challenge to the assistance of counsel he received?

Mr. Lassiter: We allege voluntariness, he alleges, we allege that the plea was not voluntarily entered.

Unidentified Justice: By reason of erroneous advice from the lawyer?

Mr. Lassiter: That's correct.

Unidentified Justice: No claim of erroneous advice from the Court?

Mr. Lassiter: That's correct, and we also do not claim that the Court was under a duty to advise Petitioner as to potential parole eligibility.

We don't make that claim.

We make the claim that his counsel affirmatively misadvised him; that is, he told him that he would be parole eligible at serving one-third less good time that he told him that would be about six years if he stayed out of trouble, that he would not have entered the plea except for that advice, that he would not have entered the plea if he had known that he would not be parole eligible until serving one-half less good time.

Unidentified Justice: Mr. Lassiter, who was the lawyer, now deceased?

Mr. Lassiter: His name is William Patterson.

He was the Deputy Public Defender.

Unidentified Justice: Patterson?

Mr. Lassiter: Yes, Your Honor.

Mr. Patterson died in the summer of 1980.

Unidentified Justice: Would you mind explaining what the law in Arkansas is on alleging and proving prior convictions to enhance or determine parole eligibility?

If I understand it correctly, the State is not required to allege and prove the prior conviction.

Mr. Lassiter: That's correct, Your Honor.

Unidentified Justice: That's a determination to be made by the parole board after the conviction and the sentence, is that right?

Mr. Lassiter: It is determined by the Arkansas Department of Corrections.

When the inmate is received at the Department of Corrections they will check his prior record through the Arkansas Crime Information Center and the FBI, and then if they find a prior felony conviction for which he was incarcerated, then they use that in computing his parole eligibility that date.

The State does not have to allege and prove prior convictions as part of the trial process or plea process.

The District Court dismissed the petition without a hearing.

The Eighth Circuit affirmed, the Eighth Circuit holding that details of parole eligibility are a collateral and not a direct consequence of the plea and therefore cannot render Mr. Hill's plea involuntary.

And also, the Eighth Circuit looks at the Fourth Circuit cases of Strader versus O'Tuel discussed in the brief and finds here that counsel's misadvice, alleged, does not rise to the level of gross misinformation as addressed in Strader and O'Tuel.

There is one matter here that I would like to address initially because the cases cited in the brief, a number of them, distinguish between what we call positive misadvice and statements by counsel that are called a mere prediction, or present only a hope of leniency.

The State argues that in the situation that Mr. Hill found himself in, and with the series of events as alleged by Mr. Hill, that this could only... that counsel's advice here could only be of a speculative nature, just an estimate, and cannot rise to the level of being positive misadvice, and the State argues that that is so because under the Arkansas rules of Criminal Procedure, the trial judge does not have to accept the recommendation of the State.

Now, that is correct, under the Arkansas Rules of Criminal Procedure the trial judge does not have to accept the recommendation of the State.

But we're not sure exactly what happened here.

Mr. Hill alleged that counsel told him that the judge would accept the plea under the Arkansas Rules of Criminal Procedure.

There is a provision which allows the attorneys to discuss the plea with the Court beforehand, and the Court can either accept or indicate that the Court will accept or reject.

That may have happened here, we're not sure.

If we had a hearing on this matter, I also think that I could show that this particular judge at that time in 1979 accepted almost all recommendations from the State on negotiated pleas, and it was his practice, if he was not going to accept that recommendation, to allow the defendant to--

Unidentified Justice: Well, under this plea the highest potential sentence that could have been imposed was up to 50 years, is that correct?

Mr. Lassiter: --Five to 50, or life.

Unidentified Justice: And had the judge given the maximum sentence, then this Mr. Hill would not have had to serve longer than the time he is objecting to here, isn't that true?

A third of 50 would be how much?

And how is he prejudiced, then, by the fact that he got a lesser sentence that he has to serve half of, which wouldn't be any more than had he received the maximum sentence and served a third of it?

Mr. Lassiter: Well, the allegation is that he entered the plea based on advice by counsel that he would receive the 35 years, and he did receive the 35 years, and that he relied on that in entering the plea.

If he had received a 50-year sentence then the same parole laws would have been in effect.

He would have had to have served one-half less good time and not one-third less good time, as counsel told him he would have to serve.

Unidentified Justice: But, now, when the judge asked him whether any promises were made to him to get him to enter the plea agreement, his response was, no, nothing that didn't appear on the agreement.

Are you relying for purposes of this case on a promise that he would get 35 years maximum, or not?

Because, that would be in conflict with the face of the plea agreement and I hadn't understood that you had raised that and were relying on that.

I understood that you were relying only on an allegation that the lawyer had told him something about his parole eligibility date, not that he had been promised that he would get a 35-year sentence, maximum.

Mr. Lassiter: Well, I think I have to address the issue of what sentence that the lawyer told him he would get, in order to demonstrate that the lawyer's advice concerning potential parole eligibility was not just an estimate or a prediction, if he were in the situation where nobody knew what Mr. Hill was going to receive when he walked up there and pled.

Unidentified Justice: Well, he really didn't, did he?

He didn't know what he was going to get.

The Judge wasn't bound.

They could have given him 50 years.

Mr. Lassiter: He could have, but that was not that judge's practice and counsel advised him that the Court would impose whatever the recommendation was.

That is correct, under the Arkansas Rules of Criminal Procedure the judge did not have to take the recommendation.

Unidentified Justice: Let's assume he expected to get 35 years and the judge gave him 50.

Do you think he would have some right to habeas corpus just bared on that, if that's all that happened?

Mr. Lassiter: It depends on what happened before and if it was a negotiated plea where the judge had in no manner whatsoever participated in it, and if counsel had not advised him that he was going to get 35 years and he walked up there and the judge gave him 50 years.

No, he--

Unidentified Justice: Mr. Lassiter, you keep changing the question.

I'm looking at the question presented for review to this Court, and I read it as saying that he alleges that the attorney misadvised him as to his potential parole eligibility date, not that he had been promised that he would get a 35-year maximum sentence.

Mr. Lassiter: --That's correct, Your Honor.

That's the question.

Unidentified Justice: So, you are arguing something now that I didn't understand was encompassed in this question at all.

I understood you were basing it on the allegation that the lawyer said, you're going to be eligible for parole after serving a third of your sentence, whatever it is.

Mr. Lassiter: That is correct, Your Honor.

That's the question presented.

Unidentified Justice: So, we don't have to consider this discussion this morning about a promise of 35 years maximum, right?

Mr. Lassiter: That's correct.

Unidentified Justice: Okay.

Mr. Lassiter: That's correct.

I only mentioned that in trying to show that we have possibly misadvice here, and that we're not dealing with speculation.

Unidentified Justice: Now, in the habeas petition, Mr. Lassiter, did your client make the contention that had he been properly advised as to parole eligibility he would not have entered into this plea bargain?

Mr. Lassiter: Your Honor, he does not in his habeas petition.

That does appear, however, in the objections to the proposed order of the Magistrate, and that's at... it appears... that is in the joint appendix at 46 and 47.

Unidentified Justice: Is it your argument that the Constitution requires that in plea bargaining, in hearing before the trial court, that always there is a right, a constitutional right to know the earliest date at which parole may be pursued?

Mr. Lassiter: No, Your Honor.

We are not arguing that.

I'm not arguing that.

I am arguing that the Constitution places a duty on the attorney to advise properly when he does that, and to not overlook an easily accessible published statute that controls parole eligibility.

That's what we argued.

Unidentified Justice: Let me ask one other factual question.

You indicated that the basis for the claim that he would not have entered an innocent plea if he had known the true facts, is in your objections rather than in the habeas... that's apparently, though, that's a document that you prepared?

That's not under oath?

Mr. Lassiter: That's correct, Your Honor.

Unidentified Justice: I mean, there's no way you could testify to this.

So, is it proper in your view for the record to be made up of, in effect, factual statements in a brief in support of your position?

That's essentially what it is.

Mr. Lassiter: Well, if you take it as it is, he prepared this pro se petition.

He is not a lawyer.

He is not a scholar.

I can only... I came in after the Magistrate had prepared his recommendations for the district court and then I filed the objections.

I can only, at this point, tell the Court what his testimony would be.

Unidentified Justice: See, one other fact kind of puzzles me a little bit.

I guess for Act 93 to apply there has to have been a prior felony conviction, is that it?

Mr. Lassiter: Yes, Your Honor.

Unidentified Justice: Is it clear that the lawyer who is row deceased was advised about the existence of the prior felony conviction?

Mr. Lassiter: Not on the record.

Unidentified Justice: So, you really don't know if the lawyer did anything but tell him, according to his best knowledge, what the law was?

I'm just speculating, because in your answer to Justice O'Connor you pointed out that the correction office checks this at the time of parole eligibility?

Mr. Lassiter: That's correct.

Unidentified Justice: But apparently the judge thought it was a third.

It doesn't seem to be, anybody was conscious of the prior conviction, as far as I can tell.

Mr. Lassiter: Again, as I said a moment ago, I think counsel is under a duty to inquire about prior convictions even if we had a situation here where petitioner didn't tell him.

And also, let me address--

Unidentified Justice: Just one other observation.

The lawyer who is now deceased, and apparently died just shortly before the habeas corpus petition was filed, apparently if he was a public defender, I'm amazed he wouldn't know about Act 93 but I could understand how he might not know about a prior conviction.

Mr. Lassiter: --Well, yes.

It surprises me also.

Unidentified Justice: Mr. Lassiter, couldn't your client have amended his habeas corpus petition if at the time you were objecting to the Magistrate's report it appeared to you that it had not said enough on the subject of whether he would have entered this plea had the advice been correct?

Mr. Lassiter: I believe he could, and as I say i raised that in the objections.

Unidentified Justice: But it's not in any verified way.

Mr. Lassiter: That's correct.

Unidentified Justice: You certainly can't speak for him.

Mr. Lassiter: Well, that would be my error, that that was not done.

Unidentified Justice: So, we really don't know that by his statement.

We don't know that he would not have entered exactly the same plea even if he had received the correct advice.

Mr. Lassiter: Not based on the allegations that appear in the original petition.

I think that is correct.

Unidentified Justice: Well, not based on any other statement by him in the record, isn't that correct?

Mr. Lassiter: It does not appear at page 8 and 9 in his allegations.

Justice Stevens, you raised a question a moment ago concerning what the Court said about the defendant being required to serve one-third.

I would like to clear this up.

There is some misunderstanding about that.

Whatever the Circuit Court Judge would have said at that time would have had no effect on the potential parole eligibility date of the petitioner.

It was strictly controlled by Act 93 and that would have been set once he reached the Department of Corrections.

I believe that that was probably just a result of having at that time some of the judges continuing to do that, because prior to the enactment of Act 93 if one was under the age of 21 and he would be immediately parole eligible upon being sent to the Arkansas Department of Corrections as a first offender, and the judge could make him serve one-third less good time by saying he had to serve a third.

I think that was just force of habit.

His statement that he was to do one-third would have had no effect whatsoever on the amount of time that he was to serve.

Unidentified Justice: Mr. Lassiter, assuming that the Court were to feel that the allegation somehow rose to the level that a hearing would be appropriate, what standard should be applied to determine, what legal standard should be applied to determine the ineffectiveness of assistance claim in a plea bargain situation?

Mr. Lassiter: I think we can take Strickland v. Washington and place it on this situation and ask, first of all, was counsel diligent in his representation of the defendant, did he breach some duty owed, some investigatory duty or some other duty owed to the defendant, and we would ask that question first.

Petitioner would testify--

Unidentified Justice: Or perhaps ask first whether there was prejudice.

Mr. Lassiter: --That's the second problem with the test, and the prejudice here would be that he would not have entered the plea except for this advice and that he waived his right to go to trial.

Unidentified Justice: If the facts appear that he had made such--

Mr. Lassiter: Yes, of course.

Unidentified Justice: --May I ask one other... I'm sorry to take so much of your time, but your brief refers to the previous Florida conviction.

Where in the record do we know exactly what the Florida conviction is for and when it was entered?

Mr. Lassiter: It doesn't appear.

Unidentified Justice: It does not appear?

Mr. Lassiter: No, I don't--

Unidentified Justice: Well, is it conceivable... I'm not suggesting this happened, that the defense counsel knew about the Florida conviction but the prosecutor and the judge didn't and he thought it would be a little smarter not to mention it?

Is that possible, consistent with what we know in the record?

Mr. Lassiter: --It's possible but it would have been very ill-advised because the Department of Correction would have caught it once he arrived there.

Unidentified Justice: Yes, but on the other hand, maybe if they'd known... I don't know what that conviction was.

It might have been something that might have made the prosecutor ask for a more severe sentence.

I just don't know, and if you get a hearing that you've asked for, the testimony will be presented by your client about his conversation with a now deceased lawyer, a kind of unsatisfactory state of affairs.

Mr. Lassiter: I would have to assume that... again, we would speculate here, but I would have to assume that the prosecutor was aware of that because routinely they run an FBI check on people that are charged with serious crime.

Unidentified Justice: Well, is it your suggestion the prosecutor didn't know about Law 93 either?

If he knew about it... I find it rather surprising that trained lawyers in the criminal... in prosecuting criminal cases wouldn't know of the existence of that statute.

Isn't that fairly common?

Mr. Lassiter: Yes, it certainly is, and that's one of the first things that your client wants to know if you are negotiating a plea.

So, criminal defense attorneys are, and certainly should be, well aware of the defect of Act 93 because everybody wants to know that.

If you're going to negotiate a plea they want to know when is the earliest possible date that they could be released.

I think we could show at a hearing by putting on attorneys that this kind of advice is extremely important during the course of representing a client when negotiating a plea.

I think that we could prove that rather easily and I think we could show that if an attorney misadvises in this manner that it would be a breach of a duty owed a client, and a breach of diligence, which was, I think, the term used in Strickland v. Washington.

We are asking for a hearing here on the allegations in this case that the advice by counsel was not speculative in nature but positive.

Unidentified Justice: I suppose we can assume that the testimony of the prisoner, who is not here, would be just as it is set out in your brief, that is, that he was misadvised?

Mr. Lassiter: Yes, Your Honor.

Unidentified Justice: And the lawyers... suppose the lawyer says, no, that's not so, contrary testimony?

What have we got except a decision on credibility?

Mr. Lassiter: That's where it would lodge, at that point.

That's what you'd have.

Unidentified Justice: Well, except the lawyer's dead.

Mr. Lassiter: That's correct.

Unidentified Justice: I'm speaking of the general rule of cases that you would make out of this?

Mr. Lassiter: That's right, it would simply be the lawyer's testimony against the Petitioner's.

Unidentified Justice: Well, that wouldn't be the end of it, even if you believed him.

Mr. Lassiter: That's correct, in that you would have to show that he wouldn't have entered the plea unless--

Unidentified Justice: Wouldn't the ineffectiveness claim really boil down to the same issue as the voluntariness of the confession?

Mr. Lassiter: --Yes, I believe so, voluntariness of the plea.

Unidentified Justice: Of the plea, yes.

Mr. Lassiter: Yes, I think so.

Unidentified Justice: Did the State ever raise in its defense of this kind of provision the habeas rules that allows dismissal of habeas where the delay in bringing it in has prejudiced the State's ability to defend against the claim?

Mr. Lassiter: I would like to point out that the initial circuit court pleading which Mr. Hill filed, which he styled a Mr. Patterson's death.

I would like to save what time I have left for rebuttal, Your Honor.

Chief Justice Burger: Very well.

Mr. Attorney General.

ORAL ARGUMENT OF JOHN STEVEN CLARK, ESQ. ON BEHALF OF THE RESPONDENT

Mr. Clark: Mr. Chief Justice, may it please the Court, the facts in this case are simple and direct.

It is true that Mr. Hill was charged with murder one and theft of property.

It is also important for this record to remember that on April 6th, 1979, the defendant in this case entered into a plea agreement.

In that specific agreement, in which the plaintiff waived, knowingly waived and informedly waived his constitutional rights to a trial, to confront witnesses, to testify in his own behalf, that document, executed by the defendant with the help of his counsel, in fact is a form which they complete together.

On that form the defendant entered "zero" as to prior convictions, without... with assistance of counsel.

That same day the defendant and his counsel appeared before the trial court in order to enter his voluntary plea of guilty.

The Court inquired as to the terms of the plea agreement, specifically if it was accurate, specifically if the defendant had relied upon any promises, threats or other offers from the prosecution, specifically as to whether the defendant was satisfied with representation of counsel, and specifically if the defendant had any other comments that he would like to offer to the Court.

The defendant said no.

I submit to you that the central issue in this case--

Unidentified Justice: General Clark, just so I can find it in the record, the plea agreement is the one on 28 and 29 of the joint appendix, and where is it that he says "no" as the prior convictions?

I just want to be make sure I--

Mr. Clark: --Your Honor, on the plea agreement, it is a form and there is a space which says "prior convictions".

There is a space.

Unidentified Justice: --Would you just tell me where it is in the record so I can look at... is it 28 and 29?

Mr. Clark: Yes, sir, it is.

It is not--

Unidentified Justice: Well, then where is the part about the "zero"?

Mr. Clark: --In the second paragraph, in the first sentence, Your Honor:

"You are charged with a felony and with zero prior convictions. "

That "zero" is not underscored but it was a blank on the plea agreement itself, Your Honor.

Unidentified Justice: I see.

Mr. Clark: The simple issue, I submit to the Court in this case, is whether the Court of Appeals erred in finding that the Petitioner was not constitutionally entitled to an evidentiary hearing in a collateral attack of his voluntary guilty plea.

I submit to you, the Court of Appeals did not make error.

This Court on several occasions has emphasized the validity and importance of plea bargaining process, and likewise stated, for the plea bargaining process to work, a guilty plea must be accorded a great measure of finality.

In this instance, the truthfulness and the accuracy of this guilty plea, this voluntary guilty plea, is evidenced by the record.

I submit that generally speaking, parole eligibility is not a direct but rather a collateral consequence of any guilty plea.

It is unnecessary to advise the defendant who desires to plead guilty as to parole eligibility, and the fact that the defendant is misadvised does not in itself per se negate that voluntary plea.

In fact, we have found in the Federal Criminal Rules of Procedure, Rule 11, that the... we have stated in the comments that not only is the question as advise as to when someone might make parole or be parole eligible, but whether, and that is true in Arkansas as there is no requirement to advise as to parole eligibility.

In the case at bar the record clearly demonstrates, I submit to this Court, that parole eligibility was not a part of the plea bargain, and that this Petitioner was not wrongfully induced to plead guilty based on some assertion.

I would further submit to this Court that a better rule of law is that even if the defendant was ill-advised or misinformed as to what the precise eligibility is to be for parole, that fact alone does not take away from guilt or the desire to enter a plea of guilty.

There must be some demonstration of prejudice.

Unidentified Justice: Just while I've got it on my mind, does the record tell us of anywhere that we might have missed as to what the nature of the Florida conviction was, when it occurred, what the offense was and so forth?

Mr. Clark: Your Honor, the record does not.

The offense, however, was aggravated assault and breaking and entering, of which he was convicted in '77 and served until '78, at which time he came to Arkansas.

Unidentified Justice: I see.

Thank you.

And the Government knew that when this plea bargaining was going on?

Mr. Clark: Your Honor, I do not know that the Government knew that.

Unidentified Justice: Have you ever seen the Government negotiate without a rap sheet?

Mr. Clark: Your Honor, I have not, but in this instance the rap sheet that we had came from the Arkansas State Police.

Whether it was complete or not, I do not know.

The allegation... the need for finality in the criminal justice process is imperative, I submit to you, particularly when those challenges come from some collateral attack some years later, and are only allegations of ineffective assistance of counsel.

This allegation has become a very common vehicle for those incarcerated to seek relief by simply placing the system and their attorney on trial by realizing their petition as petitioner, at worst cases merely the status quo,

"I voluntarily entered my plea of guilty, I made an informed decision to waive my rights and was sentenced, but maybe I can receive a more favorable sentence later if I will file this collateral attack on that sentence. "

In particular, I submit to you today, what troubles me about this case is that the so-called inducement to plea asserted by Petitioner is actually only that individual's unilateral expectation, an expectation which rarely, as in this case, if ever can be tested by any objective standard, and which submits virtually every guilty plea, and in Arkansas there are some 10,000 entered each year, to attack collaterally at any time when the defendant upon incarceration determines that his expectations, whatever they may have been, that being denied a right to vote would not have occurred, or being denied the right to hold a hunting licence or a barber's licence would not have occurred.

If he asserts, then, that because of his expectation he can challenge, collaterally challenge the voluntariness of that plea and be entitled to an evidentiary hearing because of his own individual expectations, and this instance has been stated before clearly, a competent and dedicated and respected public defender, now deceased, cannot be heard as to what in fact did go on in terms of contradicting or supporting the Petitioner's case.

But in this instance we have a record that demonstrates that that competent and dedicated public defender, who in my opinion did know the law, saw from the defendant an assertion that there were zero prior convictions.

Unidentified Justice: General Clark, on page 16 of the joint appendix, there begins what apparently is the State's response to the federal habeas petition, and which appears to be a transcript of a proceeding before the district court, or at least the State's version of what happened before the Arkansas trial court.

On page 18, the paragraph towards the bottom of the page, after the indented observation where the Court says something, and this apparently is the State's paraphrase, it says,

"The Trial Judge then stated that Petitioner would be required to serve at least one-third of his sentence before becoming eligible for parole. "

Now, is that contested in any way that you know of by opposing counsel?

Mr. Clark: No Your Honor, it is not contested by opposing counsel.

I would further submit to this Court that though I recognize there will be those who would appear at this bar and argue that parole was the only factor to be considered by the defendant in pleading guilty, "When do I get out", if you will, that a better rule of law and policy requires that you take into consideration two very important factors, and those are simply these, and must be remembered and balanced against that assertion: the multiplicity of imponderables that can affect parole, not the least of which is the conduct of the defendant or changes in regulations or policy, perhaps, by policy making bodies.

I submit that as in this case, when this Petitioner pled guilty voluntarily and in an informed way waived those constitutional rights that are protected, and was sentenced to 35 years which was the agreed recommended sentence, he is not, and I repeat not, constitutionally entitled to serve anything less than 35 years.

Unidentified Justice: Are there any circumstances, in your view, when an attorney's erroneous legal advice on parole eligibility could rise to the level of establishing ineffective assistance of counsel?

Mr. Clark: Your Honor, I have considered that question carefully.

It would be my opinion that perhaps you could make the case where the erroneous advice, or such an inducement to the plea, and on the record the defendant indicated that this was a material fact, to the Court, that,

"I wanted this Court to consider. "

and therefore if the Court did not consider it you might make such a case.

But, in this instance the record is devoid of such an assertion.

Unidentified Justice: Wouldn't it, in any event, have to undermine the voluntariness of the plea?

Mr. Clark: Yes, Your Honor.

I think it would have to undermine the voluntariness, as I have determined that voluntariness to be, the informed waiver of those rights.

Unidentified Justice: What if the defendant's lawyer just advised him that parole is available and usually, if you behave yourself, it will be one-third, and it turns out that for this crime parole just isn't available at all, which is true of some crimes?

Mr. Clark: Yes, Your Honor, it is.

In that instance, if in fact because of that representation, and it was an inducement to that plea, the defendant thinking he would make parole when in fact he could not, you may have prejudice that attaches that allows such a hearing.

Unidentified Justice: If those were the facts in this case, would you say that he was entitled to a hearing or not?

I thought your submission was that misadvice about parole really shouldn't amount to a constitutional violation at all.

Mr. Clark: It is my submission, Your Honor, that misadvice does not amount to a constitutional violation unless prejudice attaches in some form, that is, there was no voluntary waiver.

Unidentified Justice: But you would say... if the facts in my example were the facts of this case, would you say that this gentleman should have been given the hearing?

Mr. Clark: The facts of your example, Your Honor, is that there would be no parole but he was advised there could be parole, is that correct?

Perhaps in that instance he is entitled to a hearing, yes, Your Honor.

Unidentified Justice: In the district court on his application for habeas?

Mr. Clark: Yes, Your Honor.

In summary to this Court, I would submit this, that the policy as I have stated, which is a better policy, is one in which the defendant is not constitutionally entitled to information as to parole eligibility, and that the need for finality of judgment should continue to be afforded great weight and a measure of finality when a voluntary plea is challenged on a collateral attack in terms of petition for habeas corpus.

For all those reasons, I submit to you that the decision below should be affirmed.

Unidentified Justice: Counsel, if a sufficient allegation were made to justify holding the hearing, what standard do you think should be applied, legal standard, to determine the issue?

Mr. Clark: Your Honor, I think that standard would be--

Unidentified Justice: Do you agree it should be some adaptation of the Strickland standard?

Mr. Clark: --Your Honor, it should be some adaptation of the Strickland standard, not necessarily the Strickland standard as to an adversarial proceeding.

I think that standard is that in this instance the defendant was induced to make a decision.

If it shows it was not an informed waiver because of facts upon which he relied, either demonstrated by the prosecution or by the defendant or by the Court, then it's not the same test as Strickland as to that adversarial nature of the full litigation in terms of a plea of not guilty.

Unidentified Justice: May I just ask one other question?

Mr. Clark: Yes, Your Honor.

Unidentified Justice: I must confess, this keeps troubling me.

Now, your police statement says,

"You are charged with a felony with zero prior convictions. "

And you have told us... well, maybe I shouldn't ask it because it's off the record, the conviction is a year or two before.

This was after four months after the plea of not guilty, there was a pretrial proceeding, the plea was changed and so forth.

Is it conceivable that neither the prosecutor nor defense counsel knew this fellow had spent a year in jail right before this incident?

Mr. Clark: Your Honor, it's possible although I don't know that it's probable.

Unidentified Justice: It seems improbable.

To whom should the zero... should we hold that against your opponent or against your... I just don't know.

It didn't say zero, did it?

Mr. Clark: Your Honor, he entered a zero into the form.

The form has a "Prior Convictions" blank.

There was a zero actually, physically written in.

Unidentified Justice: By whom?

Mr. Clark: By the defendant and the defendant's counsel, prepared by them.

Thank you.

Unidentified Justice: What should the State do if it knows that that's wrong, and the State is a party to the plea agreement?

What if the prosecutor had the rap sheet right in front of him and knew that there was a prior conviction, read the agreement, knew the defendant had entered the wrong information?

Mr. Clark: I think the prosecutor as an officer of the court would have the duty to inform the Court what the correct information was.

Thank you.

Chief Justice Burger: Is there anything further, counsel?

ORAL ARGUMENT OF JACK T. LASSITER, ESQ. ON BEHALF OF PETITIONER -- REBUTTAL

Mr. Lassiter: One matter, Mr. Chief Justice.

In regard to the police statement form, I think perhaps we need to talk about that for just a moment, and that's a space where you have a blank for prior convictions.

I believe the purpose of that, and I think probably what happened here, is to enter the number of prior convictions that the individual is charged under the Habitual Offender Act.

I don't know that we can conclude too much one way or another by the insertion of a zero there.

I think the language--

Unidentified Justice: You don't dispute that... who put the zero in?

Mr. Lassiter: --Well, we don't know who put it in.

I would imagine--

Unidentified Justice: The Attorney General says that the defendant and his counsel did.

Mr. Lassiter: --I would imagine counsel did that and then presented it to his client.

Unidentified Justice: You imagine it?

I mean, you don't contest that statement, do you?

Mr. Lassiter: No, no.

I wouldn't contest that.

I don't know actually lifted the pencil and put it in there.

Unidentified Justice: But you don't claim the prosecutor did?

Mr. Lassiter: No, I do not.

That's all I have.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Thigpen v. Roberts - Oral Argument

Thu, 30 Aug 2012 22:14:21 +0000

Case:

Thigpen v. Roberts

Media File:

82-1330_19840423-argument

Related Transcript:

82-1330_19840423-argument

Transcript:

ORAL ARGUMENT OF WILLIAM S. BOYD, III, ESQ., ON BEHALF OF THE PETITIONERS

Chief Justice Warren E. Burger: We will hear arguments next in Thigpen against Roberts.

Mr. Boyd, I think you may proceed when you are ready.

William S. Boyd Iii: Mr. Chief Justice, and may it please the Court, the ultimate question which we are here about today is to resolve whether the respondent was denied his rights under the double jeopardy clause of the Fifth Amendment when he was indicted, tried, and convicted of manslaughter by culpable negligence.

Our discussion this morning will focus on three principal areas.

The first is the appropriate federal or constitutional standard to be applied in this case.

Two, that with the exception of the denial of post-conviction relief herein, which was without opinion, the Mississippi Supreme Court has never addressed the question of whether reckless driving is a lesser included offense of manslaughter by culpable negligence.

And three, that both the District Court and the Fifth Circuit Court of Appeals has misconstrued the law of the state of Mississippi when they held that reckless driving was a lesser included offense.

Unidentified Justice: Mr. Boyd, may I ask about the law of Mississippi?

When did this death occur in relation to the time of the accident?

William S. Boyd Iii: The death occurred instantaneously with the accident.

Unidentified Justice: Instantaneously?

William S. Boyd Iii: Yes, sir.

Unidentified Justice: Well, in that circumstance under Mississippi law could the state have tried both the misdemeanor and the felony charges in one proceeding?

William S. Boyd Iii: No, sir.

Unidentified Justice: They could not?

William S. Boyd Iii: No, sir.

Let me qualify that with this.

It was initially done that way or was later done that way in this case, that the justice courts of the state of Mississippi in which they were at the time of this case, five per county, one for each supervisor's beat, that the misdemeanor charges, they have primary jurisdiction of misdemeanor charges.

Unidentified Justice: Well, was there any Mississippi statute that required the trial of those charges, the misdemeanor charges, in the justice of the peace court independently of any other court?

William S. Boyd Iii: None that would require it.

However, as I pointed out in the reply to the brief of amicus in this matter, that in Stenson v. State, which has been recently decided by our Supreme Court, they have held that it was a... that the conviction was reversible where the individual was indicted in a multi-count indictment.

In other words, we cannot charge more than one charge per indictment, nor can we try under Stenson more than one charge per case unless it is with the agreement of the parties, which was done so in this case on appeal from the misdemeanor.

So, unlike the federal government, or unlike the federal procedure under the Federal Rules of Criminal Procedure, we do not have a requirement that all of the charges be contained in one indictment, but instead it is just the opposite, the old common law rule that they have to be brought by separate indictment.

Unidentified Justice: Are the misdemeanor offenses charged by indictment in Mississippi?

William S. Boyd Iii: No, ma'am.

They are charged by affidavit.

Unidentified Justice: It is just a traffic citation?

Is that it?

William S. Boyd Iii: Yes, ma'am, that's exactly--

Unidentified Justice: By the policeman?

William S. Boyd Iii: --Um-hm.

That--

Unidentified Justice: And how are felonies charged then in Mississippi?

Only by indictment?

William S. Boyd Iii: --The constitution of the state of Mississippi requires that one be indicted for an offense.

However, there is an exception where the defendant waives indictment.

We have had a few cases of that nature where they have... where the defendant has come in and waived indictment and in fact pled guilty to the offense.

Unidentified Justice: Mississippi doesn't use a preliminary hearing type?

William S. Boyd Iii: There are preliminary hearings once someone is arrested on an arrest warrant.

There can be an arrest warrant issued by a magistrate, be it a justice of the peace, circuit judge, chancery judge, Supreme Court Justice, youth court judge, or whatever, that so long as he is a magistrate or a judicial officer, he may issue an arrest warrant.

However, prosecutions are had only upon indictments.

Unidentified Justice: And this would be at the request of the county attorney or whoever the local prosecutor is for felons?

William S. Boyd Iii: All right.

This gets into one particular question that was raised by the briefs in this case.

We have in essence or had at the time that this case came down four different types of prosecutors in the state of Mississippi.

We had municipal prosecutors who were limited in jurisdiction to the municipalities in which their court sat plus they were only appointed in cities where we had a population in excess of 10,000.

There are county prosecuting attorneys, which are... is an elected position.

County prosecuting attorneys have traditionally had jurisdiction in misdemeanor cases.

They have prosecuted cases involving misdemeanors in the justice courts and in county courts in those counties which have county courts.

They have assisted the district attorney, who is normally elected from a multi-county district or a circuit district in the state.

Under the constitution of the state, the district attorney has primary jurisdiction of all felony cases.

Now, in 1979, after this case was tried, the Mississippi legislature clarified the jurisdiction between all of these various and sundry prosecuting authorities.

The fourth prosecuting authority is the attorney general's office.

Now, there is no statutory prohibition which keeps us from prosecuting in the circuit courts.

However, it has been by tradition that the district attorneys have that function--

Unidentified Justice: Excuse me.

When you say nothing to stop you, did that mean that the attorney general's office could have tried all of these offenses, misdemeanor and felony, in the circuit courts?

William S. Boyd Iii: --There is no statutory prohibition to it.

Unidentified Justice: Well, that would suggest that yes?

William S. Boyd Iii: Yes, sir.

Unidentified Justice: That might have happened.

William S. Boyd Iii: Yes.

Unidentified Justice: But it did not happen.

William S. Boyd Iii: It did not happen.

That is what I said.

Unidentified Justice: Yes.

William S. Boyd Iii: Traditionally we have followed a demarcation of jurisdiction along lines of municipal attorneys trying municipal offenses, county attorneys trying misdemeanor offenses, district attorneys trying felony cases--

Unidentified Justice: Now, in this case the misdemeanor offenses were tried in what court?

William S. Boyd Iii: --Justice Court of Beat One, Tallahachee County, Mississippi.

Unidentified Justice: Which is... and that would be a county prosecutor, would it?

William S. Boyd Iii: Yes, sir.

Unidentified Justice: I see.

The felony indictment was tried in the--

William S. Boyd Iii: Circuit Court.

Unidentified Justice: --And who was the prosecutor there?

William S. Boyd Iii: The primary prosecutor was the district attorney.

However, the county attorney did assist.

Unidentified Justice: The district attorney is a regional district attorney.

William S. Boyd Iii: Yes, sir.

His district... this is, I believe, the Fifteenth Judicial District, which runs from Memphis, Tennessee, some 120 miles south into the Delta area of the state.

That I think--

Unidentified Justice: Would you clarify that a little more?

It is a confusing system.

William S. Boyd Iii: --Yes, ma'am, it is.

Unidentified Justice: In 1979, when this particular respondent was charged and tried, were there different prosecutors involved in the two different courts?

William S. Boyd Iii: Yes, ma'am.

Unidentified Justice: And it would have been possible to have brought all of the charges in one court?

William S. Boyd Iii: It is possible.

However, they normally, and by that I mean normally, I mean 99.9 percent of the time, misdemeanor charges always originate in Justice Court, that that is their, shall we say, bailiwick, that Justice Court judges have jurisdiction in all cases which involve fines up to $1,000 and imprisonment in the county jail for up to one year.

All other crimes, the jurisdiction is vested exclusively in the circuit courts.

This is where the trial de novo question comes in.

Appeal with a right to trial de novo.

You do not have a right to a jury trial in Justice Court.

You can have a jury trial, but you don't have a right to it.

Now, in this case, if I may summarize the facts just very briefly in order to get this matter in the proper perspective, that on August 6th, 1977, Barry Joe Roberts, the respondent in this case, was traveling along Mississippi State Highway 35 between Charleston, Mississippi, and Batesville, Mississippi.

Roberts was headed in a northerly direction, and a pickup truck driven by Mary Ella Bonner was headed south.

Somewhere between these two cities, in Tallahachee County, there was a collision.

Mr. Roberts first ran off the right-hand side of the road, then crossed the median or center line in the road and hit the pickup truck head-on.

This ten-year-old little girl was in the back end of the pickup truck.

She was thrown out and killed.

Now, as a result of this, the investigating highway patrol officer issued four citations under the Uniform Citation Act of the state of Mississippi.

They were for driving while... with a revoked driver's license, Mr. Roberts having been convicted of driving while intoxicated on a previous occasion, driving under the influence of intoxicating liquor, reckless driving, and driving on the wrong side of the road.

Six days after the accident, Mr. Roberts appeared in Justice Court.

The Honorable Sandra B. Johnson of Beat One, Tallahachee County, Mississippi--

Unidentified Justice: You say Beat One, Mr. Boyd.

Are there several different beats for Justice Courts in Tallahachee?

William S. Boyd Iii: --Yes, sir.

It goes back... the terminology goes back to the old police jury system that we had in days of yore, that there are in essence five supervisors' districts in each county.

These districts are called beats.

Each beat in 1977 had a Justice Court judge.

We have since amended that statute.

We have reduced the number of Justice Court judges in the state of Mississippi, there being only two counties which have five now, that being Hines and Harrison Counties, the two largest.

Unidentified Justice: Is there also a Circuit Court in Tallahachee County?

William S. Boyd Iii: Yes, sir.

Unidentified Justice: And that is the Circuit Court for what, the Fifteenth--

William S. Boyd Iii: Fifteenth Judicial District, which encompasses DeSoto, Tate, Tallahachee, Pinola, and Yalabusha Counties.

Unidentified Justice: --And is there a resident circuit judge in Tallahachee County, or does the circuit judge just come part of the time?

William S. Boyd Iii: The circuit judge in that district lives in Tallahachee County, or one of them does.

Unidentified Justice: But that is a matter of coincidence?

William S. Boyd Iii: That is a matter of coincidence.

The other circuit judge lives in DeSoto County, which is a good bit north of there.

Unidentified Justice: Mr. Boyd, at the time the offenses in the Justice Court were being prosecuted, were there any proceedings going on arising from the death of the little girl?

William S. Boyd Iii: No, sir.

The next session of the Circuit Court... We have terms of court.

Unidentified Justice: Yes.

William S. Boyd Iii: The next session was in December.

That is the next time that the grand jury came into session, and at that time that was when the indictment was obtained in this case by the district attorney.

Unidentified Justice: Well, was there any charge before the indictment?

William S. Boyd Iii: The record does not reflect that there was.

Unidentified Justice: I see.

Would it have been possible to have an earlier indictment, earlier than December?

William S. Boyd Iii: No, ma'am, not an indictment.

Unidentified Justice: Pardon me?

William S. Boyd Iii: Not an indictment.

No, ma'am.

The grand jury is the only one that can return an indictment, and the grand jury did not go into session until the first Monday of the December term.

Unidentified Justice: So the delay in the charge of the felony was due entirely to Mississippi's procedure for charging felonies?

William S. Boyd Iii: That is correct.

Unidentified Justice: Did someone have authority to convene the grand jury specially?

William S. Boyd Iii: Not at that time, they did not, Your Honor.

Unidentified Justice: Do they now?

William S. Boyd Iii: They do now.

In fact, we have all but abolished terms of court now, and we have permanent sitting grand juries for six-month periods, or at least they have got to call two grand juries during a given calendar year.

They can be held over court terms and things of this nature.

At that time they could not be held over a court term.

The grand jury was called at the beginning of the court session, and things of this nature.

Now, as I said, on August 13, 1977, Mr. Roberts appeared in Justice Court of Tallahachee County.

He entered a plea of guilty to the misdemeanor offenses or to the traffic offenses, immediately perfected an appeal with a right to trial de novo to the Circuit Court of Tallahachee County.

On December 7, 1977, at the first grand jury which was convened after the accident, respondent was indicted for manslaughter under Section 97.347 of the Mississippi Code.

By agreement of the parties in this case, the misdemeanors were consolidated with the manslaughter charge for trial.

On May 28, 1978, the matter was called for trial, but prior to the state resting, it nolle prossed as the Fifth Circuit found all of the misdemeanor charges that had been lodged against Mr. Roberts.

Neither the double jeopardy question that is raised in this case nor the prosecutorial vindictiveness questions were raised until a petition for post-conviction relief was filed in November of 1980.

Unidentified Justice: Is there any explanation of the nolle prossed--

William S. Boyd Iii: No, sir.

No explanation whatsoever.

Unidentified Justice: --They just nolle prossed the misdemeanor charges and went ahead with the manslaughter indictment.

Is that it?

William S. Boyd Iii: This is correct.

In actuality what happened, the Fifth Circuit found that this was the equivalent of a nolle pros.

We have... as a part of our criminal practice, district attorneys will ask the court to pass something to the files, which is the functional equivalent of a nolle pros.

Unidentified Justice: And where was the post-conviction relief sought first, in the state court?

William S. Boyd Iii: All right.

Once again we get into another particular aspect of Mississippi procedure.

Under Section 99.35.145 of the Mississippi Code, we have a procedure by which, or up until last week we had a procedure by which you file a petition or an application for leave to proceed in the court which had last jurisdiction in the case.

In other words, if you take an appeal to the Mississippi Supreme Court, then that is the court which had last jurisdiction, and you file an application for leave to proceed to file a petition for writ of error coram nobis in the lower court.

The court then reviews this petition to determine whether or not probable cause has been stated for review.

If probable cause has not, then the court will deny the application and there will be no remand to the lower court.

Unidentified Justice: And that is what was filed here?

William S. Boyd Iii: Yes, sir.

That was what was filed here.

Unidentified Justice: And denied?

William S. Boyd Iii: And denied without opinion.

Unidentified Justice: And then to the federal court?

William S. Boyd Iii: And then into U.S. District Court.

Yes, sir.

Unidentified Justice: And the double jeopardy claim that is here was presented in the coram nobis proceeding?

William S. Boyd Iii: Yes, sir.

I have no question but what the question was raised under Rose v. Lundy to determine whether or not exhaustion had taken place.

There is no question about exhaustion in this case.

I will parenthetically add that the order entered by the Mississippi Supreme Court in this case has recently been interpreted to include procedural bars, that is, under Wainwright versus Sikes as decided by this Court.

However, at the time frame in which this case came up, I must candidly admit that under Ulster County Court versus Allen, the state did not proceed under the theory of procedural bar, so consequently we do not argue it here.

The Fifth Circuit and the District Court both relied on deciding the double jeopardy question upon the test articulated by this Court in Blockburger versus the United States, the same evidence test.

Our position as expounded upon by Justice White in his opinion in Vitalli v. Illinois is that the state is not precluded from prosecuting respondent notwithstanding the fact that there was a substantial overlap in proof required to prove both the crimes of reckless driving and manslaughter by culpable negligence because each offense requires proof of a statutory element the other does not.

In Albernaz versus United States, Whalen versus the United States, this Court indicated that the test articulated in Blockburger was a rule of statutory construction.

Applying that rule of statutory construction to the case at bar, we find that the application of the test should focus, one, upon the statutory elements of the offense of reckless driving, and two, upon the statutory offense or the general catch-all statute of manslaughter by culpable negligence.

Now, this distinguishes this case from the statutory situation in which we found in Vitalli.

In Vitalli, the state of Illinois had a specific statute dealing with the reckless use of an automobile, of a motor vehicle.

We do not have that in this case.

Instead, we have a general or omnibus statute dealing with manslaughter or a catch-all statute.

They specifically define various and sundry forms of manslaughter in other statutes, and then say all other homicides, including homicide by culpable negligence, shall be construed as manslaughter.

Therefore, we find that there are two separate and distinct statutory provisions.

Unidentified Justice: Even if you are correct about that, what do we do with the language in Vitalli that talked about the substantial double jeopardy claim which would be available if the prosecution relied upon and used the same evidence in the proof of both?

William S. Boyd Iii: Justice O'Connor, I think this is the whole question or the whole thing that this case boils down to, is the interpretation of this Court's statement of same evidence or the same evidence rule.

In reviewing Brown--

Unidentified Justice: The evidence was the same, I suppose, except for the establishment of the death of the victim?

William S. Boyd Iii: --Yes, ma'am.

Well, I say that, yes, ma'am, in that the reckless driving requires an element that manslaughter does not require, and manslaughter requires an element that reckless driving does not require.

The problem that we run into here is tantamount to the situation of a rico prosecution and a prosecution for the substantive offense.

In particular, the Fifth Circuit has found in at least two cases that these are separate and distinct offenses for which indictments can be returned, or that separate punishments may be imposed.

Unquestionably, both the same evidence was introduced, although he pled guilty at the misdemeanor case in the Justice Court.

The same evidence would have been introduced in both trials, primarily because both offenses arose out of the same res justi.

You would have had to introduce everything in order to prove both of the charges.

Unidentified Justice: But you would still have to find for one crime an element that you didn't have to from the other from those same facts.

William S. Boyd Iii: That's correct.

That's correct.

And this is what the Court noted in Brown, in Iannelli, and in Vitalli.

The Court spoke about despite the fact that there is a substantial overlap in proof that is actually offered, that I think the Court has envisioned the fact that you will often times have the same facts introduced.

It is just what those facts go to prove, the elements that those facts go to prove which are the distinguishing point in which the state intends to rely in this case, is the fact that because in the case of reckless driving you had to prove that you were driving a vehicle on the streets and highways of the state of Mississippi, an element you are not required to prove--

Chief Justice Warren E. Burger: We will resume there at 1:00 o'clock, counsel.

You may continue, Mr. Boyd.

ORAL ARGUMENT OF WILLIAM S. BOYD, III, ESQ., ON BEHALF OF THE PETITIONERS -- RESUMED

William S. Boyd Iii: Mr. Chief Justice, and may it please the Court, I want to clarify one point that I think there was a misunderstanding on my part.

I believe Justice O'Connor asked a question.

To clarify a procedural point, the state of Mississippi could have indicted Mr. Roberts at this time.

The thing about it is... and could have called a grand jury.

The thing about it is, this particular judicial district was at that time the busiest judicial district in the state of Mississippi, processing over 4,000 criminal cases a year.

As a matter of actual practice, they did not call grand juries except during the terms in which the court was in session.

In particular, the court was in session, I believe, 48 weeks out of 52 in every given year at that particular time.

They had one judge, one district attorney, and one assistant district attorney to handle that many cases.

So, as a consequence, it simply was not done, although it could have been done in this case.

I want to direct my attention here in the last few minutes to two points.

The first is that the Fifth Circuit misconstrued the state... or the case of Smith v. State in this situation.

The Mississippi Supreme Court has never addressed the question of whether reckless driving was a lesser included or is a lesser included offense to the offense of manslaughter by culpable negligence.

The case cited by the Fifth Circuit applying this judicial veneer as they call it was not in fact a judicial veneer but was in fact addressing the particular facts of that case to the law as it applied.

In particular, Smith v. State dealt with whether gross negligence was sufficient, or proof of gross negligence was sufficient to prove culpable negligence under this statute.

They held that it was not.

We also note that the Court has held that DWI is not a lesser included offense to the crime of manslaughter.

That was in Outshall v. State.

Finally, we look to the legislative intent, following the Albernaz line of reasoning.

We note that we have separate statutes.

The manslaughter statute was enacted in 1848.

The reckless driving statute was enacted in 1938.

Manslaughter is contained in Title 97 of the Mississippi Code dealing with criminal offenses.

Reckless driving is in Title 63, dealing with traffic offenses.

Manslaughter carries its own separate penalty of up to 20 years maximum in the state penitentiary.

Reckless driving has its own separate offense or punishment of ten days in the county jail or a fine of $500 or both.

Both provisions are unambiguous.

There is no legislative history behind either one of these things, so consequently following the presumption that this Court discussed in Albernaz, we should presume that the legislature of the state of Mississippi, which as pointed out by this Court about the Congress is primarily a lawyers' body.

It therefore must be presumed that the legislature was familiar with this Court's doctrine in Blockburger versus the United States and that they construed reckless driving to be a separate offense for which separate punishment could be imposed other than in the manslaughter situation.

Unidentified Justice: Mr. Boyd, before you sit down, isn't another issue we have to address apart from double jeopardy, didn't both the District Court and the magistrate, at least, rely on Blackledge--

William S. Boyd Iii: Your Honor--

Unidentified Justice: --and I think the Court of Appeals mentioned it but didn't address it.

Don't we have to?

William S. Boyd Iii: --That issue was avoided by the Fifth Circuit, I think primarily because of this Court's decision in Goodwin.

Unidentified Justice: No, but if we agree with you on the double jeopardy point, don't we have to address that?

William S. Boyd Iii: As I say, Your Honor, I think the Fifth Circuit, deservedly so, avoided the issue on Blackledge v. Perry because of this Court's decision in Goodwin, and knowing what the procedural posture is in the state of Mississippi in regard to prosecutions.

The magistrate's decision was decided prior to... or entered his decision prior to this Court's decision in Goodwin in 1981, applying a per se rule, which this Court has since said in Goodwin is not a per se rule, but merely a presumption.

Unidentified Justice: I don't see how that means we can avoid addressing it.

William S. Boyd Iii: I agree.

I don't think the Court should.

I think, however, because of the procedural posture in this case, that it would be the better course of action to remand the matter back to the Fifth Circuit for reconsideration on that point.

Unidentified Justice: Oh, ask them... I see.

May I ask one question, Mr. Boyd?

In your view, is the... I am troubled about the nolle prossing of the misdemeanor charges.

Was that tantamount to an acquittal as a matter of Mississippi law?

William S. Boyd Iii: No, sir.

Those charges could be rebrought or brought again.

Unidentified Justice: Well, then, I don't understand how there can never be a double jeopardy question.

William S. Boyd Iii: The statute of limitations run I suppose would be the termination of those offenses.

Unidentified Justice: But that is just like a voluntary dismissal without... they could have been reinstated as a matter of Mississippi law?

William S. Boyd Iii: To my knowledge.

Yes, sir.

Chief Justice Warren E. Burger: Mr. Barksdale?

ORAL ARGUMENT OF RHESA H. BARKSDALE, ESQ., AS AMICUS CURIAE IN SUPPORT OF JUDGMENT BELOW

Rhesa H. Barksdale: Mr. Chief Justice, and may it please the Court, as the Court knows, I appear as amicus curiae on invitation from the Court to present argument in support of the judgment of the Fifth Circuit.

We filed a brief upon which the argument to be presented today relies.

The single question presented to this Court is, does or did the Fifth Circuit correctly apply the holding in Vitalli.

As will be further discussed, and as is discussed fully in our brief, we think it is clear that the Fifth Circuit did correctly apply the language in Vitalli for a two-trial situation.

That is the important criteria.

Have there been two trials?

This isn't an interlocutory appeal.

Two trials have been held.

We think the test to be applied where two trials have been held is as follows.

There is double jeopardy where the same factual elements used for the second prosecution were proved in the other or first prosecution, which simply is what I believe this Court held in Brown versus Ohio.

Unidentified Justice: Would you need to prove death on the first charge?

Rhesa H. Barksdale: No, sir.

At the first charge, of course--

Unidentified Justice: Would you need to prove it on the second?

Rhesa H. Barksdale: --At the second, of course, Your Honor, you have got to prove death in the manslaughter.

Unidentified Justice: Pretty big difference, isn't it?

Rhesa H. Barksdale: No, sir, because at the second you have proved everything else that you proved at the first, and if we allow the state, as in this instance, to try a man, and I will get to this later... there was no guilty plea to my knowledge.

To try and convict a man in Justice Court of all of the elements and then to go to Circuit Court and retry and reprove all of those elements again and add death, which is undisputed, it is simply letting the state have two bites out of the apple and have a dress rehearsal of their case.

Unidentified Justice: You dismissed the death factor rather swiftly.

Rhesa H. Barksdale: No, sir, the death factor is a given.

But as I understand the underlying purpose of double jeopardy, it is to prohibit, as you yourself stated in Breed versus Jones, two trials or multiple trials, where there is the attendant physical, psychological, and financial stress, and the fact that the state is given the chance to have a dry run or a dress rehearsal.

Unidentified Justice: And the evidence is the same.

Rhesa H. Barksdale: Yes, sir, where the evidence is the same.

Unidentified Justice: The evidence is not the same here.

Rhesa H. Barksdale: It is the same, Your Honor, for the lesser included offense, if you want to call it that.

And then you add one given, manslaughter or death.

I don't disregard the death, but I think you have proved, in order to prove manslaughter in this instance, the state, if you want to call it, had to prove the lesser included offense.

Unidentified Justice: Of course, Brown against Ohio, Mr. Barksdale, was two separate Ohio Circuit Court prosecutions, common pleas prosecutions.

Here you have a non-record court or... you know better than I do what the Justice Court is in Mississippi, and then a Circuit Court.

Don't you think that at least factually distinguishes it from Brown?

Rhesa H. Barksdale: Your Honor, I don't think it does, because you may have had two different... you had the court of Kihoba County and some other... Marion County in Ohio on those two offenses, but the JP Court is a separate court in that sense from the Justice Court.

You say I may know better than you.

I am not sure anybody knows really the Justice Court system in Mississippi.

I don't say that flippantly, but it is a difficult thing to fathom.

But I don't see any distinction in that instance, Your Honor, the fact that it is an appeal from the Justice Court to the Circuit Court.

As Justice Brennan has pointed out, I think if this Court does not rest... bottom this decision on Vitalli and double jeopardy, it must reach the due process Blackledge claim.

In fact, although we don't stress this in our brief--

Unidentified Justice: Well, we don't need to reach it, but it must be reached by somebody.

We don't need to reach it, do we?

Rhesa H. Barksdale: --That's correct.

I think this Court should reach it, Your Honor, if Blackledge means what it says, and I think that it does.

I disagree with my friend, Mr. Boyd.

I don't believe that Goodwin has overturned Blackledge.

Goodwin went off on entirely different facts.

This case falls squarely under Blackledge, and I think this Court should affirm on that ground.

Now, I think some important procedural points need to be addressed here, because the Court is obviously interested in them.

This accident occurred on August the 6th, 1977.

Mr. Boyd has not pointed out, and I am sure it is by oversight, and it is something that doesn't jump right out and grab you out of this joint appendix, there was a preliminary hearing in this case on August the 10th, and it's in the joint appendix at Page 71.

It is just an innocuous exhibit to the writ of coram nobis, but it is there.

And a preliminary hearing was held at which an affidavit was filed by the father of this young girl in which he charged Mr. Roberts with manslaughter.

Unidentified Justice: Well, Mr. Barksdale, again, I think the procedural thing may be complicated by terminology.

I would have thought a preliminary hearing, based on my own prior... was after an information had been filed by the prosecuting attorney, and then a preliminary hearing would be seeing whether there is probable cause to hold you to answer.

Rhesa H. Barksdale: Yes, sir.

Unidentified Justice: And yet I gather, what, a preliminary hearing in Mississippi is instituted by a complaining witness?

Rhesa H. Barksdale: Yes, sir.

It would have to be instituted, I assume, by the complaining witness, and Mr. Boyd can possibly fill in the gaps here, but the complaining witness at Page 71 states that... this is the same Justice judge, by the way, that tried and convicted Mr. Roberts on the four offenses... that the father made affidavit that

"Mr. Roberts did unlawfully and feloniously commit manslaughter. "

and then there is a notation,

"A preliminary hearing was held in my court for Barry Joe Roberts on this charge of manslaughter. "

Now, I don't know that there is anything else in the joint appendix before this Court or the transcript of record before this Court about this preliminary hearing, but some sort of hearing was held.

Unidentified Justice: What do you make of that?

You kind of criticize your opponent for making nothing of it.

What do you make of it?

Rhesa H. Barksdale: Oh, I don't criticize Mr. Boyd, Your Honor.

I am just pointing out that a preliminary hearing was held and he... Justice O'Connor asked him was anything going on on the manslaughter while these misdemeanors.

Yes, a preliminary hearing had been held, a manslaughter charge filed.

To me, what I make of it is that the state certainly was aware that it was going to probably seek a manslaughter indictment of Roberts, and therefore should have proceeded extremely cautiously on trying him on these misdemeanor charges.

Unidentified Justice: Does the preliminary hearing of the kind that you reported or show was held in August, is that prosecuted by a prosecuting attorney?

Rhesa H. Barksdale: Your Honor, I think under the general statutes it states, and we cite in our brief at Footnote 8 at Page 58 through 60 talking about the general powers a county attorney had back in 1977.

They are even broader now.

That the county attorney is charged with being responsible for the matters tried in his county, and certainly he should have been present at that preliminary hearing.

Unidentified Justice: How about Mississippi practice?

I mean, would it be customary for a prosecuting attorney to be present at a preliminary hearing?

Rhesa H. Barksdale: Your Honor, I do not know.

Now, the preliminary hearing was held on August the 10th.

The Justice Court system in Mississippi which Mr. Boyd has stated, the justice judges are not required to have any legal training.

They are simply elected officials, and at the trial on August the 13th, it is my understanding of this record that Roberts was tried and found guilty.

Mr. Boyd for the first time in his reply brief states that Mr. Roberts pled guilty, and that may be in some part of the record that I don't have, but I don't see it in the joint appendix, I don't see it in the transcript of the record.

In fact, in the error coram nobis, the man says he was tried and convicted in Justice Court.

The magistrate says he was tried and convicted, and--

Unidentified Justice: What difference would it make whether he pled guilty or was tried?

Rhesa H. Barksdale: --Your Honor, I don't think it makes any difference.

Possibly the state thinks it makes some difference under Coulton, that he could have avoided the hazards of double jeopardy by simply pleading guilty and then moving on.

To me it is irrelevant whether he pled guilty in Justice Court or whether he was tried in Justice Court.

Jeopardy attached.

Unidentified Justice: May I ask right there about the dismissal, the nolle pros of the charges later on?

Do you agree that was without prejudice?

Rhesa H. Barksdale: I don't agree it was without prejudice, Your Honor.

To me it is an acquittal, where they remanded to the file.

To me it is the equivalent of an acquittal.

I would think that by now the statute of limitations surely had run.

Unidentified Justice: I always thought that was a voluntary dismissal, and you could always reinstate charges that had been nolle prossed, but that is not your understanding?

Rhesa H. Barksdale: I don't have that understanding, Your Honor.

Mr. Roberts at the Justice Court trial--

Unidentified Justice: Well, there must be Mississippi law on that, Mr. Barksdale, whether a charge that has been nolle prossed can be filed again.

Usually they can be filed again if they have been nolle prossed.

You suggest Mississippi law is to the contrary?

Rhesa H. Barksdale: --I don't know, Your Honor.

My understanding was that to remand it to the file, to my way of thinking, is like an acquittal in this kind of charge.

I don't know, Your Honor.

Unidentified Justice: But that is the judgment that constitutes the bar to the second trial.

That is the key to your whole case, as I understand it.

Rhesa H. Barksdale: No, sir.

To me the judgment that constitutes the bar to the second trial is the judgment in Justice Court back in August of 1977, where he was tried and convicted of the four misdemeanors.

Unidentified Justice: And then as a matter of... in your two-stage trial proceeding, he had the right to have that judgment just set aside as though it had never occurred.

Rhesa H. Barksdale: The judgment is set aside.

He is given trial de novo in Circuit Court.

Unidentified Justice: And then they dismiss the trial de novo, and then the judgment that has been set aside is what bars a new prosecution.

I just... I have trouble grasping this whole case.

Rhesa H. Barksdale: Your Honor, he was awaiting his trial de novo, new trial.

While he was awaiting new trial, he was indicted for manslaughter in December of '77.

In May of '78, they are consolidated.

They come on for trial.

At some point during the proceeding, the state elected to remand to the file those misdemeanor charges.

Unidentified Justice: You say the state's only option at that point was to try him again for the misdemeanors.

Rhesa H. Barksdale: I believe they could have, Your Honor, if they had done so--

Unidentified Justice: Well, they could have, yes, but you say that was their only option.

They couldn't go ahead and try him for manslaughter.

Rhesa H. Barksdale: --They couldn't try him for manslaughter.

No, sir.

They remanded those cases to the file.

They proceeded with the manslaughter and he was convicted of manslaughter based on the jury instructions which the Fifth Circuit looked to.

The court said to the jury, if you find that he was culpably negligent in, one, driving on the wrong side of the road, two, driving recklessly, three, driving under the influence of alcohol, and driving without a license... it was in the conjunctive... then you find him guilty of manslaughter.

Unidentified Justice: But he could have been guilty of manslaughter on any one of those, wouldn't you agree?

Rhesa H. Barksdale: He certainly could have, Your Honor.

Unidentified Justice: But he could not have been found guilty in the second stage unless there was a demonstration that someone had been killed as a result of that.

Rhesa H. Barksdale: That's correct, Your Honor.

Unidentified Justice: But the... I take it your submission is that under our cases, that if in proving him guilty of the larger offense they again proved the misdemeanors that he had already been convicted of, that was double jeopardy.

Rhesa H. Barksdale: That is our thinking, Your Honor.

That is precisely our point, as the Court did in--

Unidentified Justice: Brown and Harris.

Rhesa H. Barksdale: --Brown and Harris.

And as this Court said in Vitalli.

If when you go back to the state of Illinois in Vitalli, if the state in order to prove manslaughter finds it necessary to prove failure to reduce speed, then they have used the same elements, and he would have a substantial double jeopardy claim.

We think that's precisely why this case falls under that.

Unidentified Justice: What do you think the Court meant by that language, that he would have a substantial double jeopardy claim?

Do you think that meant that he would have a patently sustainable claim, or a colorable claim?

Rhesa H. Barksdale: Your Honor, I wish you would ask Justice White and tell me.

0 [Generallaughter.]

Unidentified Justice: Well, you work for him.

Rhesa H. Barksdale: To me, as we say in our brief--

Unidentified Justice: You ought to ask the Court.

That was a Court opinion.

Rhesa H. Barksdale: --To me, as we said in our brief, we thought that Justice White was using that dictum so that he wouldn't prejudge the case on remand to Illinois, and as the dissent said, they didn't know why it was called substantial double jeopardy.

To them it was double jeopardy.

But I don't know what is meant by substantial other than the fact that this Court was not prejudging what was going to happen in Illinois.

A couple of other procedural points that perhaps would assist the Court.

There is a close association between the county and district attorneys.

The county attorney was at the arraignment.

In fact, the county attorney is charged under the statute with bringing matters before the grand jury.

The county attorney was at the trial.

So this isn't as if the two gentlemen were operating in a vacuum.

All of these offenses could have been tried in the Circuit Court.

They could have waited.

They could have indicted for manslaughter.

Then they could have tried the misdemeanors and manslaughter in Circuit Court, apparently all without having to go to Justice Court under the fact that the Circuit Court is a court of general jurisdiction.

As Mr. Boyd has clarified this afternoon, the state could have called a special grand jury.

Now, it elected not to do so, but in effect it is irrelevant.

They could have simply waited until December.

If they were going to indict him for manslaughter, they could have done so.

Then they could have brought on all the charges.

Unidentified Justice: What about the case of someone who might have been injured in the traffic accident in August and who dies in November?

That obviously isn't this case, but how would your reasoning affect that?

Could they have tried him for the misdemeanors in August, there at that time being no manslaughter charge available because the person was still alive, and then come back and indict them as they did here for manslaughter in December?

Rhesa H. Barksdale: Your Honor, of course, that is what some of the cases have addressed, where the Court has said you cannot try the lesser included offense and then try the greater unless at the original onset you couldn't have tried the lesser included.

It would seem to me that again that's a balancing factor under the Constitution where if the state didn't have a pretty good reason to know that there was going to be a death, they could have gone ahead.

But I think realistically speaking, every time there is an injury in an accident, the state ought to see that as a red flag, as a buzzer to wait and decide whether or not they are going to indict him.

There is no need to rush to judgment on this.

Unidentified Justice: Well, under your same evidence theory, even on the example posed by Justice Rehnquist, you would say double jeopardy attaches.

Rhesa H. Barksdale: Yes, ma'am, I would, but I would like to point out, Justice O'Connor, I am not urging the same evidence test that is referred to in Blockburger.

I am urging a horse of an entirely different color.

Unidentified Justice: Well, you are talking about the language in Vitalli.

Rhesa H. Barksdale: Yes, ma'am.

Unidentified Justice: That is unclear.

Rhesa H. Barksdale: Well, it is clear to me.

It may be unclear to others.

0 [Generallaughter.]

And I think it said that if the state goes back to Illinois and convicts him of manslaughter based upon the lesser included offense, they just bought double jeopardy.

Unidentified Justice: Well, now, the Fifth Circuit didn't decide the same crime test, did they, the lesser included offense?

Rhesa H. Barksdale: I think they did, Your Honor.

The Fifth Circuit, when... it said there are two prongs under Vitalli.

The first prong is Blockburger, and they said, well, we think this meets Blockburger, but that means we have got to apply judicial veneer.

We are not going to do that.

We are going to look to the second prong.

Under the language in Vitalli, they said--

Unidentified Justice: Well, I thought the Fifth Circuit was uncertain about the first part of the Vitalli test, and therefore went on to look at the same evidence question.

Rhesa H. Barksdale: --Yes, ma'am.

Unidentified Justice: Isn't that right?

Rhesa H. Barksdale: The Fifth Circuit said it was uncertain whether they could apply this to the judicial veneer, but I don't know why they are uncertain.

I believe the Court did that in Vitalli.

The Court did that in Brown.

It looks at how the states have interpreted it, and the state of Mississippi has interpreted manslaughter when an automobile is involved to mean wanton and reckless conduct, which is the same language you find for reckless driving.

The petitioner here urges the Court to utilize Blockburger for a two-trial action, and that is where we differ.

While Blockburger may be appropriate in some instances on an interlocutory appeal, it is not appropriate where there have been two trials and all the evidence is before the Court.

I don't think that the petitioner has ever really addressed Vitalli and the clear language there where the Court said if it is necessary when you go back to Illinois, if you have to prove failure to slow with a misdemeanor in order to prove your manslaughter, then you have got a substantial double jeopardy claim.

The Court said that twice, and I think it is clear, and I think other courts have had no problem in utilizing that point, as did the Fifth Circuit in the Roberts case, which is before the Court.

Yet that is the question before this Court, was Vitalli correctly applied.

Here, I think it is important to note that of the four misdemeanors for which again it is my understanding based on this record he was tried and convicted.

He was given a sentence of eleven months for driving under the influence of alcohol.

Unidentified Justice: Well, of course, whatever... that language in Vitalli couldn't have been any more than just a dictum.

After all, the holding was, there wasn't any double jeopardy in Vitalli.

Rhesa H. Barksdale: The holding was that this Court said to the Illinois Supreme Court to take another look at it under Brown and Harris.

Unidentified Justice: Well, Illinois said there was double jeopardy, and we reversed them and said at that point there wasn't.

Rhesa H. Barksdale: You reversed and remanded, Your Honor, to have them look at it again.

There wasn't any final--

Unidentified Justice: Nevertheless, we reversed them.

We reversed their holding that at that time there had been a showing of double jeopardy.

Rhesa H. Barksdale: --Yes, sir, but you sent it back for them to decide.

Unidentified Justice: So whatever miscellaneous advice we might have given them later in the opinion wasn't a holding, was it?

Rhesa H. Barksdale: Your Honor, that wasn't miscellaneous advice.

That was the standard to be applied by the court in Illinois when you sent it back and said take another look at it.

Unidentified Justice: I know, but you couldn't have just reversed them citing that line in Vitalli, that there was a substantial claim.

It went back, they decided, well, however substantial it was, it was wrong.

Rhesa H. Barksdale: You could have reversed them under Blockburger, and that would have been the end of it.

Unidentified Justice: Well, we couldn't just reverse them citing that page in Vitalli.

Do you know whether they reversed or vacated?

Did you vacate or reverse?

Well, we set aside their judgment--

0 [Generallaughter.]

Rhesa H. Barksdale: The state here concedes, and I think it is extremely important, at Page 19 of its brief that the evidence necessary to prove the charge of reckless driving was introduced to establish manslaughter.

There is no dispute about that.

And as I have earlier stated, the instruction to the jury, a very cryptic instruction, says, if you find that he did in fact commit the four offenses, and they made the jury find all four, then he is guilty of manslaughter.

I think all of this boils down to, what is the purpose of the double jeopardy clause in this instance, which is to allow the state only one trial of the same offense to prevent a dress rehearsal.

Certainly they didn't need a dress rehearsal in this case, but the prophylactic rule under the double jeopardy clause obviously goes beyond this case.

It is our contention that Vitalli did not change double jeopardy law, as is being urged here.

It is our contention that the Fifth Circuit didn't change the well established double jeopardy law, as seems to be urged here.

It is our contention that both simply applied the law that this Court has applied for years, going all the way back to In re Neilson.

Unidentified Justice: Is it your position, Mr. Barksdale, that even though there is a different element in each statutory offense with which one is charged, if the same evidence is used to prove both, it is a violation of double jeopardy?

Rhesa H. Barksdale: Your Honor, if the same evidence is used to prove the factual elements of the lesser offense in order to prove the greater offense, then it is our contention that that is a violation of double jeopardy, notwithstanding additional elements will have to be proved, such as death.

Unidentified Justice: Well, supposing one is tried for, say, reckless driving, and found guilty by a jury of that on the grounds of recklessness, and then the same evidence is produced on the charge of intentional homicide, that the person actually intended to run the person over.

Now, the state doesn't introduce any more evidence than it did at the first trial, but it simply asks the jury to infer instead of reckless disregard deliberate intent.

Now, if it wouldn't be in violation of double jeopardy otherwise, would it be because there is no new evidence introduced?

Rhesa H. Barksdale: Yes, sir, because they are again proving the same offense, and it is trying the man twice on the same evidence, and they have been allowed at the first trial to work on their case and sharpen up their case to use it again and to simply say to the jury if you find A, B, C, D, and E plus F, then you can convict him a second time.

Why is that necessary?

Why can't the state wait and do it all at one time?

Unidentified Justice: Well, it is not a question necessarily of what is necessary, but what the Constitution forbids.

Rhesa H. Barksdale: Yes, sir.

Well, I think the Constitution forbids it, and I think it is easy for the state to operate within those constitutional restraints.

Unidentified Justice: In the cases where the key to it is whether additional evidence or different evidence must be used, what do you think the Court was driving at?

When you say it is... there is just one more element that needs to be proved, that is, death.

Rhesa H. Barksdale: Your Honor, under the Blockburger test, which talks of, if two offenses can be proved out of the same transaction, you look, does each offense require proof of a fact that the other does not, I think that is simply the court without the evidence before it on an interlocutory appeal or before trial is ever held saying, now, this is our best way to try to make sure there is no double jeopardy.

Unidentified Justice: Could they convict in the second case without showing that someone had been killed?

Rhesa H. Barksdale: Oh, certainly not, Your Honor.

Unidentified Justice: Could they make the first case without proving someone had been killed?

Rhesa H. Barksdale: Yes, sir.

Unidentified Justice: Well, then, isn't that quite a bit of different evidence?

Rhesa H. Barksdale: In the severity, it certainly is, Your Honor.

In the double jeopardy basis, I don't think so, because I think he has been tried twice for the same offense.

And they have simply upped the ante the second time around.

Unidentified Justice: What was the offense?

What was the same offense?

Rhesa H. Barksdale: Your Honor, the same offense the Fifth Circuit looked to and just simply went off reckless driving.

Unidentified Justice: I am asking you what was the same offense?

Rhesa H. Barksdale: To me the same offense were all four misdemeanors, Your Honor, reckless driving, driving without a license, driving under the influence, and driving--

Unidentified Justice: That is manslaughter?

Rhesa H. Barksdale: --Because they used that and nothing else to prove manslaughter, that is double jeopardy, Your Honor.

Unidentified Justice: They had to prove death.

Was death important in both cases?

Rhesa H. Barksdale: Excuse me, Your Honor?

Unidentified Justice: Was death, d-e-a-t-h, important in both?

Rhesa H. Barksdale: No, sir, it was not... it is certainly important in both cases.

It was not relevant in the first case.

Unidentified Justice: They didn't even need it in the first one.

Rhesa H. Barksdale: No, sir.

Unidentified Justice: So there is a difference.

Rhesa H. Barksdale: There is a difference of one additional element, Your Honor, but for the fact of what he was tried for in the first case, he was tried again in the second.

Unidentified Justice: Without that element, you couldn't have gotten the conviction.

Rhesa H. Barksdale: No, sir.

That's stipulated, that there was manslaughter, or at least death.

In any event, we feel that the test this Court utilized, for example, in Brown, in Harris, and stated to the Illinois court to utilize well serves the purposes of double jeopardy.

Unidentified Justice: Now, has Mr. Roberts ever even paid the fine that was levied at the first misdemeanor trial?

Rhesa H. Barksdale: Your Honor, I do not know.

Unidentified Justice: Presumably that was set aside--

Rhesa H. Barksdale: That was set aside.

Unidentified Justice: --in his de novo appeal, so right now there is nothing, no penalty has been attached.

Rhesa H. Barksdale: Your Honor, all I know is what is in the record I was given, is that those were nolle prossed.

Apparently nothing else has been done on them.

He was let out of jail in 1982, and I doubt he has paid them.

I don't know the--

Unidentified Justice: Is he out of jail now, ever since '82?

Rhesa H. Barksdale: --It is my understanding that he is, Your Honor, but I haven't confirmed that.

I haven't checked to see if he is out of jail.

Unidentified Justice: Was he ever in jail?

Rhesa H. Barksdale: Yes, sir.

Unidentified Justice: For what period of time?

Rhesa H. Barksdale: I don't know whether he was out of jail on appeal, Your Honor, from the Mississippi Supreme Court, but he was certainly in jail for at least two years.

That is why in our brief we stated it appears he was possibly incarcerated as long as four years, from the spring of '78 to the spring of '82.

Unidentified Justice: From the time of affirmance by the Supreme Court of Mississippi until, what, the Fifth Circuit's ruling in this case?

Rhesa H. Barksdale: Your Honor, we look to the finding of a manslaughter conviction before the Circuit Court as the possible parameter, outside limit of four years in jail, which now in Mississippi if you manslaughter while intoxicated, the maximum sentence is five years, based upon the new statute that we refer to in our brief and that Mr. Roberts' attorney refers to in his brief.

The point is raised that the trial de novo barred the double jeopardy claim.

As stated in the discussion with the Court, we don't think there was a trial de novo.

There was a trial in Justice Court on misdemeanors.

There was a trial in Circuit Court on manslaughter.

And we certainly don't think that bars his right to raise his double jeopardy claim.

Unidentified Justice: So if you are wrong and the other side wins, what will happen to the gentleman on whose behalf you are speaking?

Rhesa H. Barksdale: Your Honor, I am not speaking on behalf of Mr. Roberts.

I am speaking in support of the judgment below.

Unidentified Justice: Yes.

That means that you are supporting him to some extent.

Rhesa H. Barksdale: Yes, sir.

What happens to Mr. Roberts is, if the petitioner is right and I am wrong and the Fifth Circuit is wrong, then the case would go back to the Fifth Circuit possibly under some standard, or if reversed, Mr. Roberts would go back to jail, and--

Unidentified Justice: What about the Blackledge point?

Rhesa H. Barksdale: --I think the Blackledge issue this Court should address.

I think in fact it is an easier, cleaner constitutional issue than the double jeopardy issue before the Court, because by analogy this Court seeking to avoid ruling on constitutional issues--

Unidentified Justice: That is a constitutional issue.

Rhesa H. Barksdale: --Yes, sir, but it is a more difficult constitutional issue it appears than the Blackledge decision.

I don't see any distinction or distinguishment between Blackledge and this case, except possibly the fact that there were two different attorneys involved, as we discuss in our brief, although it appears that the same attorney, the county attorney, was involved throughout, but--

Unidentified Justice: Well, but why should the prophylactic rule set forth in Blackledge apply when you have two different prosecuting attorneys and presumably two different charging procedures and the timing is different on the charges?

It just... you don't have the circumstances that would lead you to need a prophylactic rule, would you?

Rhesa H. Barksdale: --Your Honor, the main reason is because the county prosecuting attorney who would be in charge of the Justice Court case is also the attorney that presents the charges to the grand jury, and so he is the one that makes that decision, will we indict, and that would be the prosecutorial vindictiveness that this Court--

Unidentified Justice: Well, as I understood the responses to the questions earlier by Mr. Boyd, I thought that a district attorney was involved in the Circuit Court charging of felonies.

Rhesa H. Barksdale: --A district attorney--

Unidentified Justice: Maybe I misunderstood.

Rhesa H. Barksdale: --A district attorney is involved, but the county attorney is also involved.

He is responsible for trying cases in his county, so you have both the district attorney and the county attorney involved in the manslaughter Circuit Court case, but you have the county attorney involved in Justice Court, you have the county attorney involved in the arraignment, you have the county attorney involved in the grand jury proceedings and at the trial in Circuit Court.

Unidentified Justice: Who decides whether to present this case to the grand jury?

It is the district attorney, isn't it?

Rhesa H. Barksdale: The district attorney would have that ultimate decision, Your Honor, in consultation obviously with the county attorney, who would obviously have a lot of influence with the district attorney because it is his county.

Unidentified Justice: But that is enough reason not to apply the prophylactic rule in Blackledge, isn't it?

Rhesa H. Barksdale: I don't see a distinction, because as stated it is the county attorney's county.

He obviously has a great deal of influence with the district attorney, and it is the institutional bias that this Court is looking to.

It is the power of the state, not of these individuals to indict someone for a greater offense after they seek trial de novo from a case of this type.

Unidentified Justice: Wouldn't you be making the same argument even if the county attorney were not involved?

Rhesa H. Barksdale: I would be making the same argument, Your Honor, but I don't think it would be as persuasive.

I think it is extremely persuasive because the county attorney is involved up and down the ladder, and so is the district attorney.

I think it is interesting... I see my time has expired.

Thank you, Your Honors.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Boyd?

You have two minutes remaining.

ORAL ARGUMENT OF WILLIAM S. BOYD, III, ESQ., ON BEHALF OF THE PETITIONERS -- REBUTTAL

William S. Boyd Iii: Yes, sir, I have just a couple of comments.

In answer to Justice O'Connor's question, yes, the district attorney is the one who has the ultimate say-so as to whether or not someone is indicted or whether someone is not indicted by the grand jury.

Unidentified Justice: Except it is really the grand jury.

William S. Boyd Iii: Yes, sir, except for really it is the grand jury.

To follow the invitation of the amicus in this case to the same evidence test that he extrapolated upon in argument would limit the state of Mississippi to one prosecution and one prosecution only.

Our Supreme Court has held as recently as Stenson v. State, there is currently a case that is pending on rehearing before that court on the same question, styled Young v. State, to the effect that the state is limited to a one count charge, that we cannot indict by multi-count indictment.

Consequently, to follow the same evidence argument as advanced by amicus would limit the state to one prosecution, which under the common law was unheard of, and we submit under the laws of... under the Constitution is not required.

The state is entitled to indict on several counts.

Unidentified Justice: Well, suppose a defendant is convicted of robbery and then the state indicts him for felony murder, and the proof offered is that the underlying felony is robbery, and it is the same robbery that they just convicted him of, but they prove the robbery, and then they prove death.

What... was it Brown or Harris that said that was double jeopardy?

William S. Boyd Iii: I believe it was Hicks, Your Honor.

Harris versus Oklahoma.

Unidentified Justice: Harris.

William S. Boyd Iii: Yes, sir.

Unidentified Justice: Harris.

William S. Boyd Iii: That was also in, I believe, Whalen.

Unidentified Justice: And the rationale is that they have convicted him of the underlying felony, and if that is what they prove in proving felony murder, they have violated his double jeopardy rights?

William S. Boyd Iii: Yes, sir.

Unidentified Justice: Isn't that what we have held?

William S. Boyd Iii: That is what this Court has held, but I think that case is distinguishable from this case--

Unidentified Justice: That is what I am interested in.

William S. Boyd Iii: --because, one, you do not have to prove in manslaughter by culpable negligence that a vehicle was recklessly driven.

Unidentified Justice: I know, but you are going to.

William S. Boyd Iii: But you can.

Unidentified Justice: But you did.

William S. Boyd Iii: Yes, sir, I understand that, but that's not what this Court has in my opinion articulated as the test.

The Court has said in Vitalli that it does not... where you do not necessarily have to prove that element.

Unidentified Justice: Well, in Harris, you didn't need to prove a robbery to prove felony murder.

You could have proved some other felony, as far as the statute was concerned.

But the fact is, the state proved the very robbery.

William S. Boyd Iii: Robbery was a part of felony murder at that time by definition, I believe.

Unidentified Justice: Well, not really.

It was just... That was just one of the kinds of felony murder.

William S. Boyd Iii: I see my time is up.

Unidentified Justice: I would like to ask a question before you sit down, please, about the preliminary hearing that was held in Justice Court--

William S. Boyd Iii: Yes, ma'am.

Unidentified Justice: --in August on the manslaughter charge.

William S. Boyd Iii: We don't know that it was held in August.

That was when the affidavit was filed by the father of the child.

There is no date as to when the preliminary hearing was held.

Unidentified Justice: Why would a preliminary hearing have been held on the manslaughter charge?

I don't understand.

William S. Boyd Iii: I don't know, Your Honor.

As I say, we don't know when it was held.

It could have been held in conjunction with the indictment some time in November.

Unidentified Justice: Well, you know why it was held.

I thought they would have a hearing to see if they would bind him over for the grand jury.

William S. Boyd Iii: I do not know when Mr. Roberts was--

Unidentified Justice: Well, I know.

It isn't a question of when, but wouldn't you normally have a preliminary hearing to see if you would hold him for a grand jury?

William S. Boyd Iii: --Your Honor, there is no requirement... there is a requirement that the defendant be taken before a committing magistrate, but there is no requirement that a preliminary hearing be given such as in Coleman.

Our preliminary hearing is merely... is not a... is a non-binding stage.

The one who has his charges dismissed against him at a preliminary hearing the grand jury can later indict for the same offense.

Unidentified Justice: But he would have been out of jail meanwhile.

William S. Boyd Iii: Yes, sir.

Unidentified Justice: Yes.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.

Featured:

Mabry v. Johnson - Oral Argument

Thu, 30 Aug 2012 22:15:30 +0000

Case:

Mabry v. Johnson

Media File:

83-328_19840416-argument

Related Transcript:

83-328_19840416-argument

Transcript:

ORAL ARGUMENT OF JOHN STEVEN CLARK, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Warren E. Burger: We will hear arguments next in Mabry against Johnson.

Mr. Attorney General, I think you may proceed whenever you are ready.

John Steven Clark: Mr. Chief Justice, and may it please the Court, the state appears here as a petitioner because of the importance it attaches to the resolution of this case on its merits due to the split in the circuits and that impact on the criminal justice system.

That issue, as we define it, is, is the defendant constitutionally entitled to specific performance of a plea offer once made, then withdrawn, prior to entry of a guilty plea or a showing of detrimental reliance or prejudice.

Unidentified Justice: But after his acceptance.

John Steven Clark: Yes, Your Honor.

I will argue that a better rule of law and a better policy is that specific performance is only constitutionally entitled when that defendant has made a showing of detrimental reliance or prejudice, and that there is an adequate remedy at law, and that a rigid rule, the rigid rule enunciated by the Eight Circuit Court of Appeals below, has the effect of stripping the prosecutor of any discretion, the trial court of any discretion, and perhaps most importantly, creating a constitutional right and a unilateral expectation of the defendant.

Unidentified Justice: Under Arkansas law, who makes the final decision on sentences?

John Steven Clark: The trial court, Your Honor.

Unidentified Justice: And on the acceptance of pleas?

John Steven Clark: The trial court, Your Honor, would consider the plea offer that was made, and would decide whether it was acceptable and either accept it or not.

Unidentified Justice: He can reject it if he wishes?

John Steven Clark: Yes, sir, the trial court may reject the offer.

The facts below briefly are these.

Fourteen years ago, in 1970, the defendant was charged with murder in the first degree, burglary, and assault with intent to kill.

He was convicted on the charge of murder and received life imprisonment.

He was convicted on the charge of burglary and assault with intent to kill and received a sentence of 21 years and 12 years respectively, which were to be served concurrently.

In 1972, the Arkansas Supreme Court reversed the murder conviction for inadequate jury instruction, and defendant was appointed a counsel.

He was arraigned, and a trial date was set.

Late Friday afternoon, October 27th, 1972, the deputy prosecuting attorney communicated to the defense counsel a plea offer, that offer being, if the defendant would plead guilty to 21 years concurrent to the charge of accessory after felony murder, a plea could be stricken, a recommended plea could be agreed to.

Defense counsel took that offer to the defendant at the penitentiary the next day, and he agreed.

The very next working day, Monday, October 30th, defense counsel communicated to the deputy prosecuting attorney his agreement, and was informed there was a mistake, that the plea recommendation would have to be for a sentence of 21 years consecutive rather than concurrent.

Defense counsel or defendant had no further comment to either the prosecutor or to the court until November the 8th of that year, when the defendant appeared before the court for trial on the charge of murder with a plea of not guilty.

That trial ended in mistrial.

A subsequent date was set.

It was continued, and the in February of 1973, the defendant, in the presence of a jury, withdrew his plea of guilty to the charge of murder in the first degree, entered voluntarily a plea of... excuse me, withdrew his plea of not guilty to murder in the first degree, entered a plea of guilty to the charge of accessory after felony murder, and was sentenced to 21 years consecutively.

Unidentified Justice: General Clark, is the defendant now released from custody?

John Steven Clark: Yes, Your Honor.

The defendant is on parole now.

Unidentified Justice: And served how much time?

John Steven Clark: Defendant was sentenced in 1970 and '71, and was released in 1977, I believe... '79, Your Honor.

Unidentified Justice: And the sentence he had been given was a total of how many years?

John Steven Clark: For the charge of burglary and assault with intent to kill, 21 years for burglary and 12 for assault with intent to kill, and that was the sentence he was served.

He is still under the subject and control of the Board of Pardons and Paroles of the state of Arkansas, and his parole eligibility date for absolute release would be March 17, 1988, or March 17, 2009, depending on the sentence.

Unidentified Justice: In Arkansas, does a plea agreement have to be entered into in writing ultimately before it is put into effect?

John Steven Clark: There is not a requirement in the state statute, Your Honor.

Unidentified Justice: But it does have to be approved by the judge?

John Steven Clark: The trial court must approve any plea that has been offered to a defendant.

This Court has recognized that plea bargaining is an inherent part of that criminal justice process, and inherent in any plea bargaining agreement is the requirement of fundamental fairness.

In Santobello this Court enunciated that a defendant was only entitled to specific performance where there had been that showing of detrimental reliance or prejudice.

In the case at bar, there has been no showing of reliance or prejudice, and fundamental fairness requires that the benefit inure equally to the state as it does to the defendant.

Unidentified Justice: Where was that in Santobello that there was reliance on--

John Steven Clark: Excuse me, Your Honor?

Unidentified Justice: --You said that the defendant in Santobello had relied on the plea bargaining.

John Steven Clark: Yes, Your Honor.

Unidentified Justice: Is that in the opinion?

John Steven Clark: The defendant relied by entering a plea of guilty.

Unidentified Justice: But it is not in the... the opinion doesn't say that, does it?

John Steven Clark: Your Honor, as I understand the facts, the defendant did enter a plea of guilty.

Unidentified Justice: The opinion doesn't say that, does it?

John Steven Clark: No, Your Honor, it does not.

Unidentified Justice: It does?

John Steven Clark: It does say that.

Yes, Your Honor.

Excuse me.

Unidentified Justice: It says that he relied on it?

John Steven Clark: He relied by virtue of entering a plea of guilty.

Unidentified Justice: And that that prejudiced him?

John Steven Clark: That shows that reliance.

Yes, Your Honor.

In this instance, in the case at bar, Mr. Johnson did not enter any plea of guilty.

In fact, the plea bargaining was revoked on Monday, when there had been a mistake indicated.

Unidentified Justice: We are talking about the bargaining between the man and the prosecutor.

John Steven Clark: Yes, Your Honor.

Unidentified Justice: That is what Santobello is about, and that is what this case is about, and I'm not too sure Santobello helps you that much.

John Steven Clark: Your Honor, I would submit to you that Santobello does help in the sense that unless the defendant shows there has been some detrimental reliance or some prejudice.

In this instance the facts do not show that.

In this instance, the defendant was offered a bargain.

There was a mistake, an honest mistake.

As soon as that offer was accepted and communicated back to the prosecutor, to be known that there was a mistake, the prosecutor gave evidence that there was a mistake.

At that point, the defendant entered a plea of not guilty, went to trial on the plea of not guilty.

The defendant did not raise at any time to the court or to the prosecutor that there had been any bad faith, there had been any indication by the prosecutor of vindictiveness, just indicated that there was a mistake.

In fact, I think the mistake is fairly self-evident if you logically conclude what occurred.

Here was the defendant serving 21 years for burglary and 12 years for assault with intent to kill, doing time.

He had been tried once for murder in the first degree, convicted, and sentenced to life.

Now, here was the state coming forward with a plea bargain which said you could serve 21 years concurrent.

It would have been as if the deputy prosecutor had said, would you accept a plea bargain in which we will drop all charges against your defendant.

And so I think it is obvious from the logical conclusion that there was a mistake here, and that in this instance the defendant was not prejudiced by that mistake, because he did have an adequate remedy, which was trial by jury.

Unidentified Justice: General Clark, the Court of Appeals seems to have concluded that the writ of habeas corpus should issue unless the state resentenced the defendant in accordance with the concurrent sentence plea proposal.

Do you know why the Court of Appeals made nothing of the fact that the trial judge in Arkansas had never approved the plea bargain?

John Steven Clark: Your Honor, I do not know why they did not.

That is the issue that brings the state to this petition, for the reason that that erodes all discretion of the trial judge.

It is such a rigid, inflexible rule that there is no benefit, no mutuality of advantage that goes and flows to the state from plea bargaining for the very reason that you are bound only to the unilateral expectation of the defendant, and that there is some mutuality of advantage that is a part of the plea bargaining process that inures to the state.

Unidentified Justice: But what if the Court of appeals, instead of saying what it did, it said, until the state submits the plea bargain to the judge who tried the case, saying the prosecutor is bound but not the trial judge.

Would you still... Under your theory it is still objectionable, isn't it?

John Steven Clark: Yes, Your Honor, it is still objectionable.

That obviously is a better remedy than what we have now, but it is still objectionable, because of the split in the circuits and the fact that predicated on this unilateral expectation of the defendant, and I think we find a situation where two disastrous results occur, the first of which is that we have given rise to a constitutional right to a defendant who has been engaged in the plea negotiation process, which this Court has enunciated that plea bargaining is not a constitutional right.

So, for those defendants that are not involved in the plea negotiation process, they don't have the same issue to bring to an appellate... for an appellate remedy of post-conviction remedy.

Secondly, the effect of depending solely on the unilateral expectations of defendant can create a situation where literally each case on its merits will have to be reviewed through the post-conviction remedy and appellate process without being able to set a standard by which they can be judged against, because each defendant will have some expectation, I didn't believe that I was going to be sentenced to 21 years consecutive, and you get into this Court having to ask of events of five, ten, and fifteen years ago, what did one deputy prosecuting attorney say to one deputy public defender?

What was the context of the five to seven minute conversation?

What in fact happens if the defense counsel makes a mistake?

So it seems to me that the decision below was a very important decision in that it erodes the flexibility of fundamental fairness as it applies to the criminal justice system, and as I have said there would be no benefit that would have flown to the state if you follow the strict adherence of the court below, because Johnson would not be serving any time for the crime of murder.

And although the court below says it does not rely on principles of contract, it does seem to adhere to some contracting theory in the sense that there is an offer and there was an acceptance, and therefore the state should be bound.

I submit to you that what we are discussing here are not issues of contract, and though the analogy may be important from the standpoint of being somewhat instructive, we are dealing with constitutional rights.

Unidentified Justice: General Clark, just so I understand your position, in this particular case you say it would have been silly to make this offer, because it really was no punishment at all.

John Steven Clark: Yes, Your Honor.

Unidentified Justice: But you would make the same constitutional argument if they had offered him 15 years instead of life or something like 15 years consecutive and then later changed their mind and decided it ought to be 21 years consecutive.

John Steven Clark: Yes, sir, I would make the same argument if you withdraw the plea if no prejudice had attached, there had been no detrimental reliance.

I would also to this Court that as I said, that the result of this decision in terms of contract is one which this... we are talking about constitutional rights and the deprivation of liberty, and that if you were just going to analogize simply to contract, where one party negotiates with another, you realize that both parties have the power to enforce that agreement, and in this instance the criminal defendant has the right to withdraw that plea, even though there has been a bargain struck.

The offense to the dignity of the state in terms of prosecution and the very narrow rigid rule applied by the Eighth Circuit is this.

Take this situation.

Had the prosecutor offered 20 years, 25 years, to be specific, and the defender had heard only five and communicated that five-year offer to his defendant, he would have said, I accept, would have communicated back to the prosecuting attorney, we accept the plea of five years, but in fact it should have been communicated to the one who originally made the offer, who was out sick, to a second one, and they agreed.

And then the prosecution went forward to take a statement from the defendant showing some reliance on his part in which he perhaps implicated other accessories to this crime.

Then in fact only at the time that we appeared before the bar of justice of the court at the trial court level would we find the situation where the defendant could have raised the issue of he had unilaterally expected a five-year sentence instead of a 25-year sentence, and his expectation was predicated on the argument of his defense counsel, the mistake there, and that if you follow the rule of the Eighth Circuit below and its rigid application, you could contend that that bargain must be struck, and in fact that defendant is entitled to that when the mistake was not made by the government whatsoever.

The argument also has been made that the government must act scrupulously.

If you can't trust the government, who can you trust?

Well, in fact, the better policy, of course, is that in any plea bargaining situation between the prosecution and the defense, every offer and agreement should be made, but the fact also is that we do not deal with technical precision.

People do make mistakes.

And the trust of the defendant is not based really in the prosecutor, because the prosecutor is the defendant's advocate.

The trust of the defendant is predicated in his belief in the court.

And so therefore the decision below does not fashion an adequate remedy in the sense of mutuality of advantage that it could gain through the plea bargaining process, because the court needs the discretion to review these plea bargaining negotiations and then order, one, specific performance or, two, recision, which gives that defendant an adequate remedy, which is trial by jury.

Excuse me, Your Honor.

I think it is important from the perspective of the state to indicate that unless we have a standard enunciated by this Court, a standard which indicates that without some showing of bad faith, without some showing of detrimental reliance, that we have an unworkable triple justice system in which the state must function, because virtually in the calendar year 1983 just in the United States District Courts alone there were some 35,000 defendants who plead guilty or nolo to criminal charges.

Of that number, some 29,000... excuse me, were charged with criminal offenses.

Of that number, some 29,000 either pled guilty or in fact pled nolo.

So you have 30,000 out of 35,000 coming into the system by virtue of plea bargaining and the negotiation process, and a mutuality of advantage must flow to the state.

It must flow to the state or the state finds itself continually in litigation as to the expectation of the defendant.

The remedy that the state would beseech this Court and urge this Court to give is that standard, the showing of bad faith, the showing of some detrimental reliance, and that that is not just mistake, because mistake is not enough in that if you follow just mistake there is no punishment, for instance, in this case at bar, that would flow to the defendant, and no respect for the dignity of the people of the state of Arkansas for an offense committed against its dignity and its citizenry.

I would conclude, Your Honor, by simply saying this.

Fundamental fairness and mutuality of advantage of plea bargaining require that a punishment must fit the crime, that the state must have the ability to deal equally and dispose of cases quickly, and deal equally with the defendant in the plea bargaining process, and that to protect the rights of the citizenry of our state, the defendant is not entitled to any specific performance of a plea bargain made and then withdrawn unless that defendant has in fact demonstrated that there has been some detrimental reliance or some prejudice.

If there are no further questions of the Court.

Chief Justice Warren E. Burger: Very well.

I think our amicus counsel wants to be heard at this time.

ORAL ARGUMENT OF JERROLD J. GANZFRIED, ESQ., ON BEHALF OF THE U.S. AS AMICUS CURIAE

Jerrold J. Ganzfried: Thank you, Mr. Chief Justice, and may it please the Court.

In our view, the Court of Appeals incorrectly magnified the respondent's unilateral expectations into a constitutional... a protected constitutional right.

Since the federal courts, of course, have no general supervisory power over the state courts in criminal cases, the role of this Court in a habeas proceeding is limited to correcting constitutional violations, and it is our submission that such questions arise only when the defendant's reliance on a plea agreement substantially induces his waiver of a right protected by the Constitution.

Ordinarily such an issue will not arise until a defendant pleads guilty, but if the prosecutor breaches his bargain after that, Santobello teaches that a remedy may be appropriate, that the defendant would be entitled to relief, and the reason is that where the bargain is a material inducement to the plea, the knowing and voluntary nature of the plea is called into question.

Now, admittedly, there may be some cases where similar concerns would arise prior to the plea, where the defendant has detrimentally relied on the bargain, for example, by cooperating with ongoing investigation, but the same principle applies here, too.

The defendant would be entitled to some kind of relief only because his reliance on the agreement undermines the knowing and voluntary waiver of a protected constitutional right, and that is the privilege against self-incrimination.

Unidentified Justice: In your view of Arkansas law, at what point could the defendant have withdrawn his participation and said, I have changed my mind, I want to go to trial?

Jerrold J. Ganzfried: Any time.

Unidentified Justice: Any time up to when?

Jerrold J. Ganzfried: As I understand it, certainly any time up through the entry of his plea of guilty, and in fact I think under the current rules in Arkansas he could move to withdraw his plea after the plea had been tendered but before sentence had been passed by the court.

Unidentified Justice: May I ask if your emphasis on detrimental reliance and prejudice means that it is sort of an estoppel theory?

The prosecutor becomes estopped if the other party relies?

Jerrold J. Ganzfried: Well, it could be put in those terms.

Of course, in the contract law analogy and promissory estoppel, the reliance by the other side, of course, has to be reasonable and justified, and in the context--

Unidentified Justice: And there has to be a right at stake, I guess.

There has to be a right at stake.

His right to a trial is at stake.

Jerrold J. Ganzfried: --Frankly, in terms of the constitutional vocabulary, to move aside from the contract law, it seems to me that you have to have a question about the knowing and voluntary waiver of a right.

That is, have you waived something, and did you do that substantially induced by an agreement?

In that event, you may have detrimental reliance, and you may be entitled to pursue a claim.

Unidentified Justice: See, detrimental reliance is not normally an element of waiver.

That is merely intelligence and understanding the choices, and when you bring in the reliance, it strikes me that your analogy is really sort of an estoppel analogy.

Jerrold J. Ganzfried: Well, we keep changing tracks in terms of the legal vocabulary used here between the constitutional law analysis and the contract law analysis.

I think the analogies are apt in this case, and generally when I use the term "detrimental reliance" it will be to refer to the waiver of a right induced by an agreement, and that raises questions as to the voluntary and knowing nature of that waiver.

Now, those concerns--

Unidentified Justice: Is there any doubt that this man did rely on it?

Jerrold J. Ganzfried: --There is... It is absolutely clear that this man did not rely on that?

Unidentified Justice: That he didn't rely on that agreement?

Jerrold J. Ganzfried: Did not rely on the agreement.

The District Court expressly found, the Court of Appeals agreed, he did absolutely nothing in reliance with this--

Unidentified Justice: What did he do to show he didn't rely on it?

Jerrold J. Ganzfried: --He did nothing to show that he did rely on it.

Unidentified Justice: Well, I mean, he didn't do anything, did he?

Jerrold J. Ganzfried: He did nothing.

He told his lawyer, this sounds like a good deal, let's take it, and his lawyer got back to him and said, it has been withdrawn.

Unidentified Justice: Now, if he had not gotten the deal, would he have done something?

Jerrold J. Ganzfried: If he had not gotten the deal?

Unidentified Justice: Yes, sir.

Jerrold J. Ganzfried: He might have pleaded guilty to... He might have gone to trial.

Unidentified Justice: He might have gone out to get some witnesses, too.

Jerrold J. Ganzfried: He might have done any number of things, but he did nothing.

Unidentified Justice: I don't see how you assume that when a man gets an agreement with the state, he relies on it, then he has to show in addition that he was injured by it.

That is my problem.

Jerrold J. Ganzfried: He would have to show some prejudice, but first he has to show--

Unidentified Justice: What prejudice?

Jerrold J. Ganzfried: --Some... that there was some right that he was entitled to have that he has lost because of the agreement.

Unidentified Justice: Some right?

The right is to rely on the state.

Jerrold J. Ganzfried: Not when you have an agreement that is not finalized until a court accepts it.

There was no justifiable reliance.

Unidentified Justice: It has been made by a state official authorized to make--

--We have no quarrel with that, and frankly we have no quarrel with the proposition that prosecutors ought to keep their word and abide by their bargains, but the point in this case is whether the respondent has a constitutional entitlement to hold the prosecutor to what in effect is a slip of the tongue.

And that depends--

Jerrold J. Ganzfried: In a situation where the defendant, of course, can back out at any time.

Unidentified Justice: --And that depends, as I understand your theory, on his showing that he is worse off than if the representation had never been made.

Detrimental reliance.

And you say he--

Jerrold J. Ganzfried: We don't have that here.

There might be a case where you have some sort of detrimental reliance.

Unidentified Justice: --But the minimum showing is some detriment.

He has been... He is worse off than if there had never been this tentative agreement.

That is your whole... what I understand to be your position.

Jerrold J. Ganzfried: That is right.

Now, ordinarily, even if he makes that showing--

Unidentified Justice: The same essential ingredient is in any estoppel case.

Jerrold J. Ganzfried: --Ordinarily, there is not going to be that showing unless he has a plea, unless he has cooperated with the authorities.

Here we have none of those, and none of those concerns.

What we have is a rule, a prophylactic rule laid down by the Court of Appeals keyed to the unilateral expectations of the respondent.

Now, it seems to me that it would be the rare criminal defendant who doesn't hope for the best, whether it be a lenient plea agreement, an acquittal at trial, or a light sentence.

The point is that he has no right to impose those transitory hopes, to make those transitory hopes binding on the state and the courts.

This Court has held that a defendant has no right to plea bargain.

He has no right to have a guilty plea accepted, and he has no right to know in advance what his sentence will be, a particularly important issue here, because until that plea is presented to the court and the bargain is presented to the court and it is accepted and sentence is passed--

Unidentified Justice: Did I understand you to say that the defendant could have withdrawn his plea at any time or his whatever you want to call it at any time until the judge had accepted it and acted on it?

Jerrold J. Ganzfried: --That's correct, and there may even be provision... I would have to check this... under Arkansas law similar to under federal law that would allow him to move to vacate the plea thereafter, but that is correct.

There was nothing binding on the respondent.

He had... even if he thought he still had an agreement after it was clearly communicated that it had been withdrawn, he could have walked away from it at any time, certainly at any time relevant to these proceedings.

Unidentified Justice: To the extent there is any reliance on the contract theory, then the contract theory would be that both are bound or neither is bound.

Jerrold J. Ganzfried: Well, there is no meeting of the minds, that there has been no performance, not even partial performance, and in fact there is no mutuality of obligation, because what the Court of Appeals has done is to impose an obligation only on the government, the prosecution, to abide by even what in this case is really a ludicrous slip of the tongue to suggest that there would be a sentence that would give him no additional jail time for a murder that he had been previously convicted of.

Unidentified Justice: Mr. Ganzfried, I take it it would make no differences for purposes of your argument if the agreement had been reduced to writing by the parties.

Jerrold J. Ganzfried: That is correct.

There would be no justifiable reliance until he waived a right, and then that was done because he was induced by the agreement.

Unidentified Justice: Well, I suppose these written agreements, at least in some jurisdictions, purport to give up those rights on the signing of the agreement, although it still is subject sometimes to approval by the court.

Jerrold J. Ganzfried: Well, certainly in the federal courts, and in Arkansas as well, it is up to the court ultimately to decide whether that plea is acceptable and that bargain is acceptable.

Now, under the rule of the Court of Appeals, what prosecutors are going to have to do to protect themselves is that they are going to have to possibly conduct all negotiations on the record, and as a result, they would remove much of the flexibility that now benefits defendants as well as the state.

Another possibility is that plea proposals may be couched with so many contingencies that they are virtually meaningless.

Another possibility is that negotiations will be delayed until so late in the process that the benefits of prompt disposition would be lost to prosecutors and defendants, because, after all, in Arkansas and presumably in the Eighth Circuit, the prosecutor is going to be concerned that a slip of the tongue may bind him to something that he never intended to say, and that the other side never took him... and relied on.

Thank you.

Chief Justice Warren E. Burger: Very well.

Mr. Quiggle.

ORAL ARGUMENT OF RICHARD QUIGGLE, ESQ., APPOINTED BY THIS COURT

Richard Quiggle: Mr. Chief Justice, and may it please the Court.

I believe that the facts of this case do not warrant the broad ruling that the state seeks, that even if this Court finds that the Eighth Circuit's holding is broader than the Eighth Circuit perceived it to be, and therefore this Court decides to enter a very broad ruling, it should certainly not be that the state is allowed to play fast and loose with the bargaining process until it decides it has gotten the kind of penalty it wants.

Unidentified Justice: Do you agree with your friend that the defendant may withdraw at any time up to the time the Court acts on the plea and possibly even afterwards?

Richard Quiggle: I think that is true, Your Honor.

I think that is one of the reasons that strict contract principles in this matter just do not apply.

I think the government is held to a higher standard than the defendant might be, but that is not the facts of this case, either, Your Honor.

The fact is, and I disagree sharply with the state when they argue that my client did not plead guilty.

My client in fact pled guilty to twice as much as the original agreement called for, and I think it is absurd to think that he would not have pled if he had been allowed to do so to 21 years if he would plead guilty to 42.

Unidentified Justice: Do you mean twice as much in terms of adding the numbers--

Richard Quiggle: Yes.

Unidentified Justice: --without reference to whether they are consecutive or concurrent?

Richard Quiggle: That is... well, in fact, the bargain, Your Honor, that was finally struck was that it would be 21 years consecutive as opposed to 21 years concurrent.

I also disagree when the state suggests that that would have resulted in no additional penalty to my client.

He had already served under the original murder conviction two and a half years of the original sentence.

Plus, even if he got a consecutive sentence... I mean, a concurrent sentence, it would not have started to run until it was actually entered by the court.

Thus, effectively speaking, there would have been some additional penalty.

Obviously, we can only go back and second guess as to whether that would have been adequate or been accepted by the trial court.

Unidentified Justice: You agree, then, that the trial judge was the final arbiter?

Richard Quiggle: Absolutely, Your Honor.

Unidentified Justice: Didn't the Eighth Circuit leave your client in a better position by its order than he would have been if the plea agreement had been accepted and the prosecutor had been forced to abide by the agreement?

The Court of Appeals opinion says that not only must the prosecutor be deemed to have accepted the agreement, but the trial judge.

How can you justify that?

Richard Quiggle: I think effectively speaking you are right, Your Honor.

The Court cut through the judicial intervention that would have occurred had this case come up in the normal course of things.

I believe that the Court of Appeals was simply acting in a very practical fashion.

After all, my client had already served the enhanced sentence.

Unidentified Justice: Well, but the Court of Appeals is applying constitutional principles.

It has no business tinkering at all with Arkansas procedure unless there is some constitutional violation, and I understood its theory and I thought your theory was that the bargain, the plea agreement is specifically enforceable, but the Court of Appeals did more than specifically enforce the... it bound the trial judge to the plea agreement in a way that he would never have been bound under the terms of the agreement.

Richard Quiggle: I think that's correct.

Unidentified Justice: Do you feel you could justify that in any way?

Richard Quiggle: Yes, Your Honor, I think I can, because this case, even the habeas case has been pending a long time, and these facts are very stale, and my client has already served the enhanced agreement.

It would simply not be fair to my client to place him in the jeopardy of the trial court now perhaps rejecting that plea bargain.

Unidentified Justice: That has nothing to do with the theory of your case, does it?

I mean, it is just kind of throwing yourself on the mercy of the court.

Richard Quiggle: Well, I guess it is, in a sense, Your Honor, but of course I will say that this issue was not brought up to the Eighth Circuit, and therefore their opinion does not address it at all, and I am somewhat at a disadvantage to justify their thinking when I don't know that they ever thought it.

I believe that--

Unidentified Justice: Do you think they wrote it but they didn't think it?

Richard Quiggle: --Well, they did not address the issue of whether they can order specific performance and bypass what the trial judge might have done back in 1973, or actually '72, I'm sorry.

And therefore I don't know what the rationale that they might... that the Eighth Circuit might have applied to it would be.

I think it is, as I have expressed to you, that they found a constitutional violation, and they attempted to shape a remedy that seemed appropriate under the unique circumstances of this case.

Unidentified Justice: Ordinarily one finds the rationale in the opinion.

Richard Quiggle: I agree, Your Honor, but that was not an issue that was addressed by the parties or the Eighth Circuit.

Unidentified Justice: Mr. Quiggle, under Arkansas practice, if the agreement had been... there had been no misunderstanding and no change, and had been submitted to the court, would there have been a recommendation by the prosecutor that that be entered?

Richard Quiggle: Absolutely, Your Honor, and the fact of the matter is, even unto this day trial courts in Arkansas routinely, if not... and consistently take those recommendations.

It is rare that a court rejects one in Arkansas, and that was certainly true back when the plea would have been entered in this case had the government not reneged on its word.

Unfortunately, the trial judge who would have heard this matter has been dead a number of years, so it would be impossible to go back to him, and the practice has shifted some.

We have new rules of criminal procedure, and so forth.

But practically speaking, had this gone before the trial judge, every expectation would have been that it would have been approved if a prosecutor recommended it, and that is, of course, a central point to what my position is.

I am certainly not suggesting in the routine course of things that trial judges would be bound by what the prosecutor agrees to recommend.

On the contrary, it is simply that the prosecutor has to stick by his word.

The trial court can always reject it.

And I don't perceive the Eighth Circuit... that's why I continue to make the point that I don't think this is a proper case for any kind of broad ruling, because it has got some screwy facts in it, and there is also the aspect of this case that I think makes it difficult... my position difficult here is that there is ineffectiveness proven in the record, and there is ineffectiveness claimed as to the trial counsel for not going forward to enforce the plea.

He states in the hearing that there was simply nothing he could do.

Now, I presume that a deputy prosecuting attorney knows the law, and Santobello had been decided several months at that point, but those issues were not reached by the Eighth Circuit, so I don't mean to rely on or press it on this Court heavily at this time, but the fact is, there is a lot of uncertainty built into this opinion, I believe, and therefore I don't think it's the kind of a case upon which a broad ruling should depend.

If there is one, I just think it is that the prosecutor cannot make his word in a final sense, as here, where there was an offer that was clear on its face, and I disagree with the state when they say that it is really simple, it is really logical to figure out what happened here.

If that is true, why didn't they put on any proof about that?

They offered no witnesses at all in this case.

None.

The fact is, if one wants to speculate, which is all the state can do, about the prosecutor's motivations, I submit to you that it is equally logical and perhaps a lot more believable that this prosecutor meant exactly what he said when he offered 21 years concurrent, and the supervisor found out about it and overruled him, because the facts of this case, as are clearly seen from the Eighth Circuit's opinion, were shocking, where a father kills his own daughter.

There was lots of press.

The Court will recall there was a mistrial because of the press.

After the plea was rejected there were collateral civil lawsuits filed in this matter, and I think the prosecutor was taking a lot of heat, and consequently he said no, we can't... we are going to have to get more time out of this guy, the deputy prosecutor's superior.

And I think under the facts--

Unidentified Justice: When was this told to the defendant?

Richard Quiggle: --Your Honor, I don't think it was for some months, until after the plea was rejected, because it was set down for a hearing that was continued, and then they came back and had the mistrial that I mentioned just a second ago, and I believe that it was not until they commenced that trial that my client, Mr. Johnson, knew that the original offer had been rejected.

Unidentified Justice: There is nothing in the record about it one way or the other?

Richard Quiggle: It is not clear from the record, Your Honor, but I will say that the prosecutor, the deputy prosecutor who was assigned to the case after the plea was withdrawn by the state admitted that he did not contact Mr. Johnson until shortly before the time of the hearing where the mistrial occurred, and so I think presumably that encompasses the fact that he did not communicate the withdrawn plea.

The facts are very specific about how the original offer was made, and I think that they would have been equally specific had this been communicated.

I think if the Court does consider this matter in the broad sense that the state seeks, that it must give due consideration to the state's argument that the Sixth Amendment does not apply in situations like this, because I think clearly it does apply.

I think that, for example, as a trial counsel in a criminal matter, if my client has admitted that he is guilty, and is ready to plead, I believe that that is going to have a profound impact upon that defendant if he then is forced to go to trial.

It is certainly going to have a profound impact on me or any other criminal attorney if I have to put that man on the stand.

I think it would be very difficult to do so.

I think it places counsel in a very awkward ethical position, because probably he is going to have to take the stand and lie.

Therefore, I think that the Court must be very cautious in waving aside the state's argument that... or my contention that the Sixth Amendment is very important in this case.

The Eighth Circuit and the Fourth Circuit in the Cooper case certainly thought it was also.

Unidentified Justice: Well, in those circumstances, in terms of the impact, isn't the standard that you cannot assist him if you know he is testifying falsely?

Richard Quiggle: I certainly think in the instance where a defendant, as here, would have to take the stand in order to make their case, I believe that it does--

Unidentified Justice: Would it be any different before or after?

Richard Quiggle: --Well, Your Honor, I presume that before the defendant has not conceded his guilt to anyone, and in the face of these kinds of facts, in fact, the defendant has said, yes, I am guilty.

Unidentified Justice: Are you suggesting that that would be the first time that the defense counsel became aware of the reality?

Richard Quiggle: It certainly would probably be the first time under normal practice, I would think, Your Honor, that a defense counsel was told by the defendant literally, I am guilty.

I would just like to say one more thing, and that is that I don't see the Eighth Circuit establishing a prophylactic rule here.

I think the Eighth Circuit's decision was tailored only to the facts of this particular case, and it was very narrowly drawn, and therefore I don't believe that it impinges upon the criminal process in the way that the state perceives, but if it does, it should impinge such that the prosecution must deal honestly and fairly and abide by its word.

Thank you.

Chief Justice Warren E. Burger: Very well.

Do you have anything further, counsel?

John Steven Clark: No, no further comments.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.

Featured:

Marshall v. Lonberger - Oral Argument

Wed, 18 Feb 2009 07:11:17 +0000

Case:

Marshall v. Lonberger

Media File:

81-420_19821005-argument.mp3

Related Transcript:

81-420_19821005-argument_transcript.xml

Transcript:

ORAL ARGUMENT OF RICHARD DAVID DRAKE, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Burger: Now we are on Marshall against Lonberger, and Mr. Drake, you may proceed whenever you're ready.

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

The instant case presents two substantial questions concerning our nation's system of federalism.

The initial inquiry focuses upon the deference which the federal judiciary sitting in a habeas corpus action brought by a state inmate must afford the factual determinations made by the state court.

A resolution of this threshold issue centers upon this Court's prior decisions in Sumner v. Mata and Henderson v. Morgan.

The secondary question before this Court concerns the continuing viability of this Court's decision in Spencer v. Texas.

It is respectfully submitted that the court below erred with respect to both issues.

The facts of this case are essentially uncontroverted.

The respondent was indicted in the Ohio Court of Common Pleas for aggravated murder.

Under then prevailing law aggravated murder was essentially a felony murder.

Here, the respondent was indicted for rape during commission of a murder.

The grand Jury as a separate and distinct matter also returned a death penalty specification, alleging that the respondent had previously been convicted of attempted murder in Cook County, Illinois.

Prior to trial the respondent filed a motion to dismiss the death penalty specification, alleging that his 1972 Illinois guilty plea was not intelligently entered.

Pursuant to this pretrial motion the Ohio trial court conducted a full evidentiary hearing.

During the course of the hearing several pertinent facts were developed.

It was developed that the respondent had been incarcerated on at least two prior occasions in the Illnois penal system; that he had been charged with and involved with the Illinois courts unrelated to those prior incarcerations with both rape and murder; that in addition to those crimes he had appeared before the Illinois judiciary on several different occasions by his own admission.

It was further developed that respondent was incarcerated continuously in the Cook County jail for a period of 13 months prior to the entry of this guilty plea.

Respondent was arrested and given an arraignment.

He was thereafter afforded a preliminary hearing.

By his own testimony the victim in the... of the Illinois incident appeared and testified, offered evidence.

Subsequent to the preliminary hearing the Illinois trial judge bound the case over to the grand jury.

They returned the indictment, charging the respondent with one count of attempt under Illinois law and three counts of aggravated battery.

Respondent was once again arraigned in the Illinois... before another Illinois court on these charges.

It was further developed and the Ohio trial court made a finding of fact that the respondent was both intelligent and literate.

The respondent also conceded that he was represented throughout his 13-month pretrial incarceration by two attorneys.

During the course of the hearing the respondent contended that he was never informed of the attempt charge, neither by service of the indictment, at the preliminary hearing, at either of his two arraignments, by either of his two attorneys, or in any other manner.

At the conclusion of the Ohio evidentiary hearing the Ohio trial court expressly found that the Illinois guilty plea had been tendered and was tendered in an intelligent and voluntary manner and that the plea was therefore valid.

It is therefore obvious that the Ohio trial court rejected as self serving testimony of the respondent.

And might I also add reference to the record indicates that the Ohio trial court found his testimony wholly incredible.

Unidentified Justice: Counsel, is it possible that the Ohio court believed that the respondent didn't receive an explanation of the charges but that his lawyer understood them and simply enforced the lawyer's understanding?

Mr. Drake: No, Your Honor, there's never been any allegation that the Ohio trial court applied the wrong constitutional standard or review.

Unidentified Justice: Well, it's not crystal clear, is it, what the Ohio court was deciding?

Mr. Drake: The issue before the Ohio court in the evidentiary hearing was in fact crystal clear.

The respondent's testimony was uniform; it never deviated.

He said I never knew I was charged with attempt... in this particular instance, attempted murder.

No one ever told me.

It was the sole, single, solitary issue before the court.

He never alleged he didn't understand, for instance, the elements of attempt, but that he never even knew that he was charged with it and had no idea that he had pled guilty to it.

This in the face of a record wherein the trial judge mentions the crime attempt, indicates the separate penalties for attempt, and where his lawyer at the conclusion stipulated that the indict... the charges, plural, in the indictment were sufficient both in law and fact.

I don't believe it's ever been argued that the Ohio trial court so horrendously misunderstood the issue before him, and it's never been alleged that he applied the wrong standard, Your Honor.

Unidentified Justice: But it is true that the Ohio court did not say in so many words that the defendant knew he was charged with attempt, did it?

Mr. Drake: Your Honor, I would... in response to your question I would refer the Court to this Court's decision in LaVallee v. Delle Rose wherein this Court indicated that given a straightforward factual consideration--

Unidentified Justice: Well, it seems to me you can answer my question without referring to another case.

Mr. Drake: --I'm sorry, Your Honor.

Unidentified Justice: The trial court did not in so many words find that he had been aware of the fact that he was charged with attempt.

Mr. Drake: Not expressly, Your Honor.

That is entirely implicit by his finding.

Unidentified Justice: You infer that from the finding that he intelligently and voluntarily entered his plea.

Mr. Drake: I believe it would be logically inconsistent not to infer that, Your Honor.

Unidentified Justice: Is the indictment in the papers before us?

Mr. Drake: Yes, Your Honor.

The indictment is in the Joint Appendix at page 2.

Unidentified Justice: Two?

Mr. Drake: The Illinois indictment is at page 2, Your Honor.

Unidentified Justice: Well, I was thinking about... yes, Illinois indictment, that's right.

Mr. Drake: Yes.

Page 2, Your Honor.

Unidentified Justice: And counsel stipulated, as you've just said, that that was sufficient in law and fact and sustained a finding of guilty.

Mr. Drake: On the charges, plural, yes, Your Honor.

Unidentified Justice: Yes.

And was the defendant in the courtroom at the time?

Mr. Drake: He conceded that he was at the Ohio evidentiary hearing.

He never contended that he wasn't.

His testimony again was wholly incredible.

He indicated that Mr. Xenos, the lawyer who represented him at the Illinois guilty plea proceeding, essentially told him to go in there and lie.

That was the crux of his testimony.

He's never indicated he was not in the courtroom, no.

Respondent thereupon proceeded to trial.

In order to prove the substantive charge of aggravated murder the prosecutor presented in part, and most important, the testimony of the two sons of the victim.

The testimony was fairly straightforward.

The two young sons indicated that the respondent was at their home that evening, the only gentleman present.

The one son indicated he had heard his mother scream.

The other son thereafter went down to the kitchen and spoke with respondent briefly.

The lights were out, and the respondent ordered him not to turn the lights on and also ordered the child back to bed.

The body of the victim was subsequently found in a state of undress in a freezer in the kitchen.

Also found was a bent and bloodstained 12-inch knife.

The cause of death was the victim's throat was slashed.

A pack of cigarettes of the respondent's brand were found in the apartment, and also there was blood on the respondent's clothing.

That was the evidence that the state adduced in order to substantiate the substantive offense... here rape/murder.

Unidentified Justice: General Drake, may I ask you a question about Ohio nomenclature?

Is a specification something that just pertains if a death penalty is being sought?

Mr. Drake: Yes, Your Honor.

Under then... obviously because of the Bell and Lockett decisions Ohio has... now has a different death penalty.

But at the time it was incumbent upon the prosecutor to allege aggravated murder, in most instances felony murder, and then allege and prove as an independent and discrete fact that a specific aggravating circumstances, in Ohio called a death penalty specification, that had to be alleged and proved beyond a reasonable doubt.

Unidentified Justice: Well, and the Ohio Court of Appeals reversed or set aside the death sentence, did it not?

Mr. Drake: Yes, Your Honor, on a ground wholly unrelated to this case.

Unidentified Justice: Well, why doesn't the whole question of specifications wash out at that point?

I couldn't understand why the Court of Appeals for the Sixth Circuit focused on these specifications and what it deemed a problem with them when I thought that had pretty well washed out after the Court of Appeals set aside the death sentence.

Mr. Drake: Your Honor, that was our argument.

We vigorously argued that point.

The Court of Appeals relied on this Court's decision in Burgett v. Texas, extended not only the rationale but the conclusion therein that the substantive offense had to also be vacated.

That was the summary rationale that the court used.

They did not dwell on it in any length whatsoever or give any analytical reasoning for the ultimate conclusion.

In order to prove the separate and distinct factual question regarding whether or not the death penalty specification was proven beyond a reasonable doubt, the Ohio prosecutor introduced a certified copy of the Illinois Judgment entry which was proper mode under Ohio law at that time.

The respondent appealed his conviction to the Ohio Court of Appeals.

The Court of Appeals reversed the aggravated murder conviction pursuant to a state law question.

Under Ohio... the Ohio law is considerably different than the federal law.

In Hollin v. United States this Court expressly rejected a theory that the prosecution when presenting only circumstantial evidence must disprove all theories consistent with innocence.

Ohio has the more stringent doctrine whereby the Ohio prosecutor must rule out beyond a reasonable doubt all theories consistent with innocence.

Here the Court of Appeals' rationale was that since the victim knew the respondent, they might have had consensual intercourse prior to the homicide; therefore, it wouldn't be a forcible rape.

The Court of Appeals reduced the aggravated murder conviction to what is called simple murder in Ohio.

Respondent from that point on and to this day stands convicted of having purposely caused the death of another.

The death penalty specification has nothing to do with his incarceration.

He was thereafter resentenced to a term of from 15 years to life imprisonment.

He has not faced the specter of the death penalty.

Respondent thereafter filed a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254 in the United States District Court.

The district court reviewed the record and made the following finding of facts

"From review of the record this court is satisfied that an ordinary person would have understood the nature of the charges to which petitioner. "

--respondent... "was pleading guilty".

The respondent appealed to the Court of Appeals for the Sixth Circuit.

That court looked at the Illinois guilty plea, the actual transcript, and found the Illinois guilty plea facially invalid.

The court did not and, despite our urgings, refused to look at the totality of the circumstances regarding and surrounding the entry of the Illinois guilty plea.

This Court thereafter summarily vacated and remanded in light of Sumner v. Mata.

Upon remand, the Court of Appeals sua sponte reinstated its prior judgment.

Unidentified Justice: Mr. Drake, did the court look at anything other than the bare transcript from Illinois that we have in the record?

Mr. Drake: The only tangential allusion by the Court of Appeals to any other facet of the Illinois guilty plea is that the Ohio trial court did not make an express finding regarding the credibility of the respondent.

As noted in the reply brief--

Unidentified Justice: Was there a record from Illinois before the court with all of the documents in it and any written plea agreement or anything of that--

Mr. Drake: --The three documents before the court were the Illinois indictment, the Illinois judgment entry, and the--

Unidentified Justice: --And the transcript?

Mr. Drake: --Transcript.

And, of course, the testimony and cross examination of the respondent in the Ohio trial court.

Unidentified Justice: Of course, it isn't entirely accurate to say that the Court of Appeals for the Sixth Circuit didn't pay attention to anything except the transcript of the guilty plea in Illinois.

It did mention both the trial... Ohio trial court's findings on that question and the Ohio Court of Appeals' findings on that question.

Mr. Drake: Your Honor, it mentioned insofar as it stated them in some manner.

In Sumner v. Mata this Court indicated that if the federal judiciary wishes to set aside factual findings pursuant to 28 U.S.C. 2254(d)(8), it is incumbent upon the habeas corpus applicant to allege and demonstrate by convincing evidence that the Ohio trial court findings are not supported by looking at the record and the statute says in its entirety here there is absolute... and the Court went on to say that the federal court is of course free to make a contrary determination, but it must articulate its reasons for doing so.

The opinion of the court below articulates no reasons whatsoever.

Upon remand the court sua sponte entered the same judgment it did.

Paramount in its misinterpretation was the misunderstanding of this Court's decision in Henderson v. Morgan.

The court had earlier cited a prophylactic rule whereby a guilty plea must be more facially valid than they found this one in their subjective opinion.

They did not look to the fact that he had competent counsel, the fact that he was arraigned twice, the length of his pretrial incarceration, the fact that he was more than conversant both with the Illinois penal system and most assuredly with the Illinois judiciary, beginning as a young... well, as a Juvenile and essentially working up from there on.

The Illinois trial judge indicated he'd been in prison approximately every two years.

These are the factors which surrounded the entry of the guilty plea, that coupled with his own personal characteristics which would be, of course, his familiarity with the system, and his innate intelligence, and his literacy level.

Unidentified Justice: Mr. Drake, one thing worries me.

What do you want more than the record of the Illinois case?

What do you want more than the record?

You said he saw the whole record, right, of the Illinois conviction, the Illinois plea guilty.

He saw the whole record.

What else should he have listened to?

Mr. Drake: You're referring to the Ohio trial judge, Your Honor?

Unidentified Justice: Yes, sir.

Mr. Drake: He did, in fact, listen to the respondent's testimony.

The respondent offered--

Unidentified Justice: Well, what are you complaining about on that point about him relying on the Illinois record?

Mr. Drake: --Your Honor, we're not complaining.

We believe the Ohio trial court did in fact examine the totality of circumstances surrounding the plea.

Unidentified Justice: And you make no complaint about that.

Mr. Drake: No.

We believe that the Ohio trial court finding is fully supported by the record, and that most assuredly the respondent has not indicated that it's... certainly not by convincing evidence that that factual finding is not supported by the evidence before the Ohio trial judge.

Unidentified Justice: I'm at a loss as to why you keep mentioning it.

I guess I just missed something, that's all.

Mr. Drake: The reason I mention it, Your Honor, is because the court below refused to consider the very factors upon which the Ohio trial court predicated its determination that that Illinois guilty plea was intelligently entered.

The only reference is to the transcript of the Illinois proceeding itself.

The court points out... and again, it's, I believe, only a one-line statement... that the Ohio trial court failed to make express factual findings regarding the credibility of the respondent.

That, of course, has already been considered by this Court in a different case, LaVallee v. Delle Rose.

The Ohio trial court, had he credited respondent's testimony, he would have had no choice but to dismiss the death penalty specification; that's apparent from the record.

And the disagreement or the statement by the court below that the Ohio trial court did not make credibility findings is beyond me in light of what the record was.

Unidentified Justice: Mr. Drake, twice you've referred to the Sixth Circuit as doing this sua sponte.

I detect a criticism there.

A criticism of what... not having a hearing or something?

What is your concern about the sua sponte?

Mr. Drake: Well, Your Honor, I, as an attorney, would have liked to briefed and argued the case in light of this Court's decision in Sumner v. Mata.

It was perhaps the Bellweather decision interpreting the 28 U.S.C. 2254(D).

I believe that with further briefing and argument that perhaps the court would not have erred to the degree I believe it did.

Unidentified Justice: I suspect on many remands from here for reconsideration in light of another case the courts of appeal would do precisely this.

Mr. Drake: I did not mean to be overly critical of the court below, Your Honor.

In Henderson v. Morgan this Court set forth a totality of the circumstances test wherein one judges whether the accused was given adequate notice of the true nature of the charges against them so as to comply with due process.

I have elaborated upon what I believe are the circumstances which fully substantiate the findings of the Ohio trial court.

I would only reiterate in Sumner v. Mata there is a requirement that the federal judiciary... that first of all the habeas corpus applicant demonstrate by convincing evidence that state court findings are not fully substantiated by reference to the record.

Here I believe there has not only been a showing of convincing evidence, but that would be impossible.

The court below essentially allowed the respondent a presumption by looking only at the record, finding it in their opinion facially defective, and refusing to examine those other factors which surrounded the entry of this plea.

Unidentified Justice: Mr. Drake, incidentally, is there any indication in the Ohio record why the judge and the prosecutor refused to accept Lonberger's offer to stipulate to the prior conviction?

Mr. Drake: No, Your Honor.

I did not try the case.

There is no--

Unidentified Justice: Is there any state interest involved in that refusal that you can identify?

Mr. Drake: --No, Your Honor.

Any constitutional ramifications would have been dissipated by this Court's decision in Spencer v. Texas.

As set forth in the brief, what I believe to be a very, very fine limiting instruction was given to the jury.

Not only that, but in the voir dire of this case the jury assured both the Ohio trial judge and counsel that they would abide by any limiting instruction.

They would resolve the guilt or innocence as to the substantive offense independent of any evidence presented regarding Mr. Lonberger's prior escapades with law enforcement agencies or officials in Illinois.

The second question presented by this case presents an equally compelling issue of federal-state comity insofar as the decision of the court below wholly disrupts state evidentiary proceedings maintained pursuant to this Court's decision in Spencer v. Texas.

Even assuming the correctness... and petitioner in no manner does... of the circuit court finding with respect to the facial validity of respondent's previously entered guilty plea, and again, even the court below indicates they're dealing only with the facial validity and fully acknowledge that this plea may well be very validly a constitutionally entered plea, in their opinion.

Unidentified Justice: Well, I gather in Spencer the prior convictions were concededly all valid, weren't they?

Mr. Drake: Yes, Your Honor.

Unidentified Justice: Whereas here at least we have a holding that the guilty plea in Illinois was invalid.

Mr. Drake: In--

Unidentified Justice: We do.

Mr. Drake: --Yes.

Unidentified Justice: And in Burgett, I gather, we had all invalid prior convictions, didn't we?

Mr. Drake: Of a very specific nature, Your Honor.

Unidentified Justice: Yes.

Mr. Drake: It is my opinion in my reading of--

Unidentified Justice: But you don't think there's a distinction between--

Mr. Drake: --No.

Unidentified Justice: --Valid and invalid prior convictions for the purposes of this case?

Mr. Drake: I believe there's clearly a distinction between this case and that in Burgett.

For instance... assuming, for instance, that this guilty plea was invalid, most assuredly Mr. Lonberger could not be sentenced to death, but it should not affect the validity of a murder conviction wherein the evidence is overwhelming that he did in fact murder the victim in this case.

Unidentified Justice: In other words, you're saying that that... if it had any bearing, the status of the Illinois conviction would bear only on the death penalty aspect of the case and not on anything that occurred after the death penalty was set aside.

Mr. Drake: Yes.

The remedial action by the court should be limited or commensurate with the violation perceived.

Burgett was a different case insofar... this Court had recently decided at that time Gideon v. Wainwright.

The Court considered that states were using uncounseled guilty pleas in express violation of Gideon and the Sixth Amendment right to counsel.

Burgett was necessary to ensure the continuing viability of Gideon.

States were not going to be allowed to use uncounseled guilty pleas, which this Court deemed to be inherently unreliable and presumptively prejudicial.

The uncounseled guilty pleas considered in Burgett this Court found to be presumptively invalid, i.e., facially invalid.

The prosecutor either knew or should have known that he was not to be using these.

The Burgett decision can only be reconciled with Spencer... the underpinning of Spencer is that juries both in civil and here in the criminal context can and will follow limiting instructions.

Juries are called on to do this all the time, either in multiple co-defendants--

Unidentified Justice: Mr. Drake, wouldn't that have required Burdette, or Burgett, rather, to be decided the other way, because wasn't there a limiting instruction there and wasn't it offered just for enhancement purposes?

Mr. Drake: --But Burgett, Loper v. Betto, all the decisions stemming from Burgett have been limited to Gideon v. Wainwright type contexts.

This Court has never held that the mere fact--

Unidentified Justice: Well, I understand it's a different constitutional thing, but if you... insofar as your harmless error argument is made, wouldn't that also have been valid in the Burgett situation?

Mr. Drake: --This Court apparently found that the use of uncounseled convictions was so inherently prejudicial that the actual... in point of fact in Burgett the uncounseled convictions were never even presented to the jury.

The judge withdrew that from the jury's consideration at the last moment.

But only in the Gideon v. Wainwright context to ensure the continuing validity in the face of apparently animosity by various states to that decision was such a Draconian measure deemed necessary.

The Court has never used that remedy, i.e., the vacation of the substantive offense despite overwhelming evidence of guilt on that offense when limiting instructions have been given outside the Gideon v. Wainwright context, Your Honor.

Unidentified Justice: Are you suggesting that the Burgett opinion said anything to the effect that only uncounseled convictions were invalid for the purposes of the Burgett rule?

Mr. Drake: Your Honor, I'm reading Burgett narrowly, yes.

Unidentified Justice: You certainly are.

Mr. Drake: Yes.

Unidentified Justice: No other invalid convictions would have the benefit of the Burgett rule, is that it?

Mr. Drake: This Court has never so held, Your Honor.

If the Court were to so hold, the states would most assuredly have to change their procedures.

The states would almost have to go to bifurcated or even trifurcated trials in any enhanced penalty setting.

Unidentified Justice: Yes, but can you show me anything in the Burgett opinion which suggests what you're arguing?

Mr. Drake: No, Your Honor.

I can only inferentially because the Court has ever extended Burgett outside that context.

Unidentified Justice: Counsel, what difficulties would the state face in bifurcating the evidence for purposes of sentencing as opposed to putting it on initially at the guilt or innocence phase?

Mr. Drake: In this particular context... and I'm dealing with Ohio laws that existed... there's the unfortunate specter that jeopardy might have attached when the jury returned a verdict of guilty into aggravated murder, because the death penalty specification, we're talking about a unitary proceeding.

To have bifurcated it would have opened the door to Mr. Lonberger arguing the jeopardy attachment, and you could not then present that to the jury.

That relates to this case--

Unidentified Justice: Even if the charges were filed initially in a way to indicate that that would be the procedure?

Mr. Drake: --That is a very limited answer to your question as far as the entire ramifications across the nation.

The Court in Spencer indicated the state has a viable and substantial interest in trying all charges together.

Spencer stands for the proposition that juries can and will follow limiting instructions to--

Unidentified Justice: Well, in the face of the stipulation that was offered, I still... it's still unclear to me what interest the state would have in introducing the evidence of prior convictions in the guilt/innocent phase.

Mr. Drake: --You're talking about this particular case?

Unidentified Justice: Yes.

Mr. Drake: Again, I did not try the case.

I don't know the nature of the offer of the stipulation.

It's very briefly related in the... I believe counsel relates it to the judge in a midtrial or pretrial context, and it's not really set forth whether it's a stipulation subject to subsequent objection or what the nature of the stipulation was, Your Honor.

I'd like to reserve the rest of my time.

Unidentified Justice: Can I just ask one other question?

Is it not clear... I mean I know you didn't try the case... but is it not clear that had the stipulation been accepted, the argument of prejudice would have been totally put to one side, would have been avoided.

Because they claim prejudice by getting this prior conviction before the jury during the guilt and innocence phase, and had you accepted... had your trial lawyer, rather, accepted the stipulation, that prejudice at least would not have been in this record.

Mr. Drake: As Burgett is being read by the court below, it wouldn't alter our presence before this Court.

I assume they were going to reserve their right to appeal the pretrial ruling regarding the validity of the Illinois guilty plea.

Unidentified Justice: Except that it wouldn't have affected any of the... it only could have affected the death penalty then.

But the problem is now it may taint the verdict on guilt or innocence.

Mr. Drake: Your Honor, I honestly fail to see the difference.

The jury would have known that he was convicted previously of attempted murder.

That apparently is the prejudice that the court below looked to.

Thank you.

Chief Justice Burger: Mr. Czarnecki.

ORAL ARGUMENT BY JOHN CZARNECKI, ESQ., ON BEHALF OF THE RESPONDENT

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

I'd like to begin, I guess, by extending Mr. Drake's argument.

Justice Stevens, you're correct.

The stipulation offered by Mr. Lonberger in this case was unqualified.

It was designed only to withdraw that issue from the jury, and in fact, it was one of four opportunities we afforded the state at trial to withdraw this particular claim or this particular charge from the jury.

We filed initially... upon the filing of the Ohio indictment we filed a motion to dismiss, making the claims we make here today.

That motion was overruled by the trial court after a hearing.

We then moved the court for a bifurcated procedure, and that in fact... Justice O'Connor asked the question... would have had the effect of keeping this particular issue out of the guilt-innocence phase.

It would have put this issue squarely before the jury only after they had reached a decision on guilt or innocence.

And it was our position then and it remains our position now that the state would suffer no detriment by accepting that proposal, because as a matter of fact had the jury returned a verdict of not guilty, the specification under Ohio law would have become irrelevant.

Unidentified Justice: Well, does that really bear on the case here?

The state didn't accept a stipulation, and it's got to bear the consequences of whatever resulted from introducing the evidence; but there's no federal rule that requires a state to stipulate it.

Mr. Czarnecki: No.

That's correct.

And, in fact, Spencer v. Texas addresses that question precisely.

I was simply addressing Justice Stevens' question on the stipulation.

The state in its argument seems to cast great doubt on the Sixth Circuit's opinion herein.

The Sixth Circuit reviewed the entire record.

It began, as the state court did, with a facially invalid conviction from Illinois.

One ordinarily presents a conviction statement to prove a prior conviction.

This conviction statement said, among other things, Robert Lonberger has been convicted of the offense of aggravated battery, et cetera.

Robert Lonberger has been given one sentence, two to four.

That conviction statement was concededly ineffective to prove that anyone had been convicted of the offense of attempted murder.

The invalidity or the insufficiency of that statement can be shown by the fact that the state was forced to go outside the record, outside the normal channel of proof--

Unidentified Justice: Constitutionally invalid?

Mr. Czarnecki: --It was certainly invalid to show a conviction for attempted murder.

Unidentified Justice: Yes, but do you say it was constitutionally invalid?

Mr. Czarnecki: The conviction statement itself, Your Honor, was facially invalid.

Unidentified Justice: Was this procedural invalidity?

What kind of invalidity was it?

Mr. Czarnecki: Well, simply stated, it did not say that Robert Lonberger had been convicted of attempted murder, period.

I mean it said, the conviction statement simply said he'd been convicted of aggravated battery, et cetera, in quotations, that phrase literally.

So that certainly the state could not have introduced that to a jury and expected them to find as a matter of fact--

Unidentified Justice: I'm still asking is this a constitutional invalidity to admit it then?

It was admitted.

Mr. Czarnecki: --I would think that it doesn't rise to the level of constitutional invalidity, no, Your Honor.

Unidentified Justice: So in that sense it's not like the prior convictions in Burgett, is it?

Mr. Czarnecki: Well, I'm sorry.

I misunderstood the Court's question.

If in fact the conviction itself was invalid, yes, that invalidity arises from a constitutional deprivation.

I'm sorry.

I was referring to the conviction statement, the document that ordinarily proves a conviction.

In this case it was insufficient.

The state then went outside the record with the testimony that was taken at the change of plea and sentencing hearing.

And notwithstanding what the state's position is, the trial judge in Illinois simply said you are pleading guilty that you did commit the offense of aggravated battery, and you did attempt on the victim.

Mr. Lonberger's position has been unwavering.

His position was that he understood he was entering a plea to aggravated battery and that the phrase relating to an attempt provided the factual backdrop for that plea.

There is no other factual information in the record to support a plea of aggravated battery.

His position is credible on its face.

The Sixth Circuit simply found, simply stated, that the Ohio trial court without more could not hold that the state of Ohio had borne its burden to sustain the validity of a conviction that it sought to use on the face of the record presented.

Unidentified Justice: Well, counsel, why do you think the Sixth Circuit said in its opinion that no explicit findings were made concerning Lonberger's credibility as a witness?

Doesn't that suggest that if the Ohio court had made findings, the Sixth Circuit would have thought somewhat differently of the case?

Mr. Czarnecki: I'm not sure that I'd like to read that into the Sixth Circuit's opinion.

Unidentified Justice: Why do you think they said it?

Mr. Czarnecki: As an observation that the facts that they were finding need not be given the deference that 2254(D) normally requires.

Unidentified Justice: Well, but doesn't that suggest to you that they were giving some credibility to Lonberger's testimony, the Sixth Circuit?

Mr. Czarnecki: The Sixth Circuit?

I would suspect so, Your Honor.

Unidentified Justice: If so, how can you reconcile that with LaVallee v. Delle Rose in 410 U.S.?

Mr. Czarnecki: Well, I would distinguish that case, Your Honor, in that that was a case remanded with specific instructions; that was a case remanded with a specific legal standard to be applied; and that the question to be answered by the state court was fairly clear on the issue of voluntariness.

Justice O'Connor asked the question during argument, and I had intended to get to it later in my argument, but I will now.

We have no way of knowing, Your Honor, on the strength of the state court finding either what standard he found or he applied or what facts he found.

In fact, it's entirely possible that the state court found, having made specific findings that this defendant was intelligent... and that's questionable... that he was well represented at every stage of the proceeding by competent and capable counsel, that he was well experienced in the criminal process, and that every effort was taken to protect his constitutional rights, may well have found that those four facts justified a finding, a conclusion of law that the plea was intelligent and voluntary, notwithstanding the fact that the court may have... and we are forced to speculate in the face of a silent record... the court may have found he neither had notice... and that's conceded, I believe... nor actual knowledge from Henderson.

We simply have no way of knowing.

The Sixth Circuit reviewed the record and found, I think properly, that the record presented did not support the trial court's finding that this plea was voluntary.

In the event, Your Honor, on the question of 2254(d) in Sumner versus Mata, this Court held last term in the second remand of Sumner that Sumner in 2254(d) did not apply to mixed findings of fact and law, and I think it's beyond argument that the validity of confessions, the validity of pleas are mixed questions of fact and law, that the federal courts are certainly free to apply federal constitutional standards to historic facts found.

They are free to give certain credence and certain weight to facts found.

Unidentified Justice: Would you think that a federal habeas court... if an Ohio court in this case had said we do not believe Lonberger when he testified, do you think a federal habeas court would entitled to say well, we think he should have been believed?

Mr. Czarnecki: I would find that very difficult to support, Your Honor.

Yes.

Because the trial court certainly had an opportunity to view the defendant's demeanor.

The question, however, transcends that simple question.

Mr. Longberger was subjected to cross examination for the better part of a day.

He was absolutely firm in his representations that he did not know.

There is not a scintilla of objective evidence presented by the state to show that this plea was, in fact, a knowledgeable, voluntary plea.

The state--

Unidentified Justice: How do you reconcile that with the statement on page 5, after they've gone through... page 5, the Appendix to your Cert Petition.

After they'd gone through the usual inquiry by the court to him about what he had done, in fact, then the court summarized at the end,

"Understand that by pleading guilty, I could sentence you from one to ten. "

--and I assume he means years, one to ten years...

"on the aggravated battery, and attempt one to 20. "

"So I could sentence you to the penintentiary for a maximum of one to 40 years. "

Mr. Czarnecki: --Your Honor, Mr. Lonberger's explanation is not the explanation of 11 lawyers.

It's an exclamation that I didn't know, I simply didn't understand that he--

Unidentified Justice: When he answered... the judge then repeated, "Do you understand that"?

And he answered, "Yes, sir".

So would you ignore that exchange, even after it followed the more detailed inquiries about what he had, in fact, done, what the criminal acts were?

Mr. Czarnecki: --At the risk of appearing to be engaging levity, Your Honor, we have to also ignore the fact that the trial judge could not have taken this plea.

I think it's clear the state in this case, in the Ohio case and the case before the bar today, does not contest the fact that this plea was probably legally invalid in any event.

It is no more unlikely that Robert Lonberger didn't understand that the judge thought he was taking a plea to attempted murder than it is that the judge didn't understand that he could not have taken pleas for attempted murder and aggravated battery arising out of the same operative facts.

The law is absolutely clear in Illinois that the offense of aggravated battery is subsumed into the greater offense of attempted murder.

If one looks at the sentence I think that supports my client's position.

The sentence is for a single charge.

My criminal practice is a regular one, and I have never seen, or stood before a court and entered a plea or had a client convicted for more than one offense when the court did not acknowledge that fact at the time of sentencing and make sentences consecutive, make sentences concurrent, dismissed, suspend.

But this case supports this client's... on the facts... supports this client's position that he simply didn't know.

And I'm not sure that anyone knew what this plea connoted.

I'm not sure that anybody had read this Court's opinion in Boykin and spread upon the record a clear understanding from the court to this defendant.

If this Court today accepts the state's position it is approving this sort of sloppy plea-taking, this sort of sloppy procedure before the state courts.

This finding in Illinois and this finding in Ohio, neither one of should be accorded the sort of deference that a careful factfinding, a careful legal process, would require.

The second argument that the petitioners make goes to the question of good faith admission and harmless error and the limiting instruction from Spencer.

In the first place,... and I don't want to spend a great deal of time on it... this case was not one of overwhelming evidence of guilt.

Mr. Drake--

Unidentified Justice: Does that really have anything at all to do with our review here?

Mr. Czarnecki: --I think it does, Your Honor.

I think the significance of the--

Unidentified Justice: Because of the harmless error?

Mr. Czarnecki: --Yes, of the harmless error made by the state is important.

I think that the state utilized his prior conviction to secure a conviction in a case that was otherwise one of insubstantial circumstantial evidence.

The Spencer court,... and I think it's significant that the Spencer court, when it discussed limiting instructions and the importance of limiting instructions, also predicated that finding on a ruling that found in Spencer that prior convictions are ordinarily not inflammatory, ordinarily introduced pure documentary evidence.

Unidentified Justice: Mr. Czarnecki, do you think that Spencer and Burgett are completely reconcilable?

Mr. Czarnecki: Yes, sir, I absolutely do.

Unidentified Justice: They were both... one was six-three and the other was five to four, and they certainly point in two completely opposite directions.

Mr. Czarnecki: I don't believe so, Your Honor.

I believe that they are perfectly reconcilable.

Unidentified Justice: Even as to the limiting instructions?

Mr. Czarnecki: Yes.

Unidentified Justice: How would you reconcile Spencer's treatment of limiting instructions with Burgett's?

Mr. Czarnecki: Spencer, as I began to say, first noted that limiting instructions... I think one has to back up a moment and analyze Spencer in its entirety.

Spencer began with the premise that this court and the federal system generally is not in the business of structuring criminal procedures for the states; a position that I certainly agree wholeheartedly with.

It then went on to suggest that states, quite uniformly, have enacted recidivism statutes to address a reoccurring problem.

Having made those two holdings, then the court acknowledged prejudice.

I think that a fair reading of Spencer must of necessity lead one to the conclusion that the court acknowledged prejudice flowing to a defendant from the admission of prior crimes evidence.

But said that because that admission is normally not inflammatory, is normally cured by a limiting instruction, that in a balance we're going to allow that procedure.

Burgett, Your Honors, is much different.

Burgett is entirely different than Spencer because Burgett is... the prior conviction in Burgett was predicated upon an invalid prior conviction, and the state's representation--

Unidentified Justice: That was an element of the offense, in Burgett, wasn't it?

Mr. Czarnecki: --In both cases, Your Honor.

Unidentified Justice: In both cases.

But not in this case.

Not in your case.

Mr. Czarnecki: Yes, it was, Your Honor.

Unidentified Justice: The specification washed out of the case when the Ohio Court of Appeals reversed the death sentence, I would have thought.

Mr. Czarnecki: The Ohio courts have held prior convictions to be elements.

Unidentified Justice: To be what?

Mr. Czarnecki: Prior convictions in recidivism cases, Ohio has a number of statutes which, for instance, the--

Unidentified Justice: I am talking about this particular case.

Mr. Czarnecki: --The trial court had held that it was an element.

Unidentified Justice: Yes, but did it play... was it one of the elements upon which the conviction which was actually sustained against him was based?

Mr. Czarnecki: No, it was not.

Unidentified Justice: So really, it's different from Burgett in that sense.

Mr. Czarnecki: No, it isn't.

Unidentified Justice: Well, I think that in Burgett the invalid conviction was an element of the substantive offense, and here it's simply... was a question of some evidence coming before the jury that proved to be quite irrelevant in the light of the Ohio Court of Appeals ruling.

Mr. Czarnecki: Your Honor, in Burgett, just as in this case, the validity of the prior conviction was raised apparently mid-trial.

There was some discussion in the opinion about exactly what happened.

But in any event, the trial judge found the prior conviction to be invalid and withdrew it, as the state has already told us, from the jury's consideration so that it played no part in the enhanced penalty.

It is a distinction without a difference to suggest that Mr. Longberger's conviction was reversed on appeal, and therefore, his prior conviction played no part.

Burgett also was not sentenced as a recidivist, Your Honor, was not convicted as a recidivist.

I think that Burgett is indistinguishable.

I think that this Court has to directly overrule Burgett unless it is--

Unidentified Justice: Well, it would have to do no more than take some of our later cases such as Parker against Randolph which said that juries are usually presumed to follow the instructions that courts give them to say that Burgett may have been too categorical on that point.

Unless Burgett adopted a prophylactic rule with respect to the absence of counsel.

Mr. Czarnecki: --Your Honor, I don't think that the opinion supports the state's position on that issue.

It... the case of Boykin said that invalid pleas are to be considered in much the same way that 6th Amendment deprivations are to be considered; that the state cannot rely upon a valid waiver of constitutional rights in the face of a silent record.

I fail to be able to distinguish an invalid plea, which goes to the heart of the factfinding process, from a 6th Amendment violation which, if anything, maybe a less important right.

The 6th Amendment right to counsel is a facilitating right.

It is a right guaranteed by our Constitution to insure that other 6th Amendment rights, the rights to notice of the charge among other things, are guaranteed.

I cannot denigrate an invalid, unknowledgeable plea to some subsidiary status, to that of--

Unidentified Justice: Could I ask you another point.

What did you say earlier about what the... how free was the federal habeas court or the court of appeals to disagree with the Ohio court's finding with respect to intelligent and voluntary?

Did it need to give any deference at all to the Ohio court's findings?

Mr. Czarnecki: --I'm not sure that it did, Your Honor.

I think--

Unidentified Justice: And why is that?

You say it wasn't?

Mr. Czarnecki: --Because it was a mixed finding, certainly a mixed finding of fact and law.

Unidentified Justice: And what if it was?

So what if it was?

Mr. Czarnecki: It exempted from the application of 2254--

Unidentified Justice: Under what case?

Mr. Czarnecki: --Under the second decision of this Court in Sumner versus Matta last term, the memo opinion remanding the case to the Ninth Circuit.

The Court agreed with the Ninth Circuit that mixed questions of fact and law are not covered by the presumption of validity contained in 2254(d).

Unidentified Justice: And the court is free to independently look at the same record and come out with a different conclusion?

Mr. Czarnecki: The federal courts have regularly, Your Honor, assigned constitutional significance to given facts.

That has been the function--

Unidentified Justice: So what's the answer to my question?

Your position is that the federal court need give no deference to the state court's conclusion about an intelligent and voluntary plea?

That it can look at the same record that the state court did and come up with a different conclusion?

Mr. Czarnecki: --I think that argument could be made, Your Honor.

It need not be made in this case because--

Unidentified Justice: Why not?

Mr. Czarnecki: --Because the Sixth Circuit expressly said that it disagrees with the factual finding of the Ohio court.

It found that the Ohio court could not, on the record, find either notice or knowledge of the plea.

I would like to be able to make the argument that as a mixed question of fact and law, the Sixth Circuit need not give deference, but I think it's irrelevant here.

I think the court fulfilled--

Unidentified Justice: So you say the court of appeals said that the Ohio court really didn't do its Job in making the kind of findings that it should have.

Mr. Czarnecki: --I think that's correct, Your Honor, and I think that that is the heart of 2254--

Unidentified Justice: That's only on the basis of the... why do you say you can't tell that the Ohio court made the necessary findings?

Mr. Czarnecki: --Because, Your Honor, it would have been... I'm bemused by the fact that the court made certain factual findings which are, in my view, irrelevant to the central question.

If, as the state points out, the issue was as clear as they represent, then it would have seemed that the trial court could have simply said the defendant had, on the strength of the record, actual knowledge of the charge made against him.

But the court did not.

It made, however, four other findings that in our view are irrelevant to the central question.

It did not address the central question.

Unidentified Justice: Do you make these observations concerning the Sixth Circuit's view of the credibility aspect of Longberger's credibility?

Mr. Czarnecki: I'm not sure, Your Honor, that the state... even assuming arguendo that the trial judge did not believe Robert Longberger... I am not willing to suggest that a state court could, without any other evidence, on an issue as crucial as this, hold that the state has borne a heavy burden, a burden that some of the circuits have characterized as requiring clear and convincing evidence,--

Unidentified Justice: Well, what would a factfinder sitting as a juror believe about the credibility of Longberger against the background that's in the record here of his criminal activities all his life?

Wouldn't they discredit his credibility?

Mr. Czarnecki: --I don't think so, Your Honor.

Unidentified Justice: You don't think so?

Mr. Czarnecki: No, I do not.

I didn't.

If the court... and I don't know if that's anymore significant.

I think the court should review the record.

Review the record that the state court found intelligence on.

And I won't comment upon this defendant's intelligence beyond to suggest, as I have in my reply brief, that post-conviction, psychological testing showed that he was on the borderline of mental retardation.

Unidentified Justice: May I ask one question about his testimony?

Who called him as a witness?

I can't remember.

Mr. Czarnecki: We did, Your Honor.

Unidentified Justice: So your position is that if you just disregard his testimony, your opponent had the burden of proof and still hadn't met it, because the record of the Illinois trial shows a facially defective... does not show a plea of guilty to attempted murder.

Mr. Czarnecki: That's precisely right.

Unidentified Justice: So they had the burden of going outside the record and proving attempted murder, and they didn't... you could take his testimony outside the record, and you would still argue that they didn't sustain their burden.

Mr. Czarnecki: That's absolutely correct, Your Honor.

Unidentified Justice: So we don't really have to care much about credibility.

Mr. Czarnecki: That's correct, Your Honor.

In the state's representations before this Court that Robert Longberger had two arraignments are an extension of his own testimony.

Robert Longberger doesn't know whether he had two arraignments.

Robert Longberger recounted to the court that he thought he was in court a couple times, and we assume, his lawyers, that he had two arraignments.

Robert Longberger talks about a hearing at which the victim testified.

We assume that is a preliminary hearing.

Robert Longberger doesn't know if it was a preliminary hearing.

We have no idea.

And all the state need do, in my view, to bear this burden is to bring some evidence that would substantiate the position that they are now espousing; that this--

Unidentified Justice: But what's the burden on the state?

Mr. Czarnecki: --In our position, Your Honor, this Court has repeatedly held that the burden is always on the state to show a waiver of important constitutional rights.

And that sounds like I am reading back your language to you, and I am not.

I'm suggesting that our system of jurisprudence seldom, if ever, casts upon a litigant the duty to prove a negative.

Unidentified Justice: What about an official record of a plea taken in a court of competent jurisdiction that on its face shows no constitutional defect?

Mr. Czarnecki: Your Honor, this Court made a decision in a case precisely like that in Blackledge versus Allison, and it suggested that even in a record that is absolutely proper and regular on its face, the defendant, by coming forward with some evidence to cast doubt upon the validity of that conviction should be entitled to a hearing to rebut those charges.

We have a much different situation here.

Unidentified Justice: What evidence did this defendant come forward with?

Mr. Czarnecki: I think the Court must understand that this defendant started from a different place.

He is not attacking a facially valid conviction.

He is raising the facial invalidity of a conviction.

He is raising a conviction that is, on its face, insufficient to prove what it is the state wishes to prove.

Unidentified Justice: Why do you allege, then... why do you say it was insufficient on its face?

Mr. Czarnecki: Your Honor, in the criminal practice in my experience, the fact of a prior conviction is proved by the state's introduction of a judgment entry or what is often called, and was called in this case, a conviction statement.

Unidentified Justice: Yes, a conviction statement reflected the aggravated battery and the attempted murder, didn't it?

Mr. Czarnecki: No, it did not, Your Honor.

That's the point of my argument.

The conviction statement simply said aggravated battery, et cetera.

It did not--

Unidentified Justice: And the state then introduced the transcript to supplement what the "et cetera" was.

Mr. Czarnecki: --That's correct, Your Honor.

Unidentified Justice: And the transcript reflected the attempted murder as well as the aggravated battery.

Mr. Czarnecki: I do not believe that it did, Your Honor.

The transcript, as the Sixth Circuit I think aptly pointed out, never contained--

Unidentified Justice: Well, whether the defendant understood it is another question, but the transcript reflected that the judge understood it, anyway, right?

Mr. Czarnecki: --The judge understood that he was taking a plea for attempt, which, incidentally, is something of an unusual charge in that it generally encompasses some other offense.

Attempt could mean, without more, an attempted larceny, or an attempted murder.

Unidentified Justice: Is it correct that the transcript doesn't ever include the words "attempted murder"?

Mr. Czarnecki: That's correct, Your Honor, absolutely.

Unidentified Justice: It says attempt with a knife.

Mr. Czarnecki: That's correct, Your Honor.

Which, by the way, would form the factual basis for an aggravated battery.

It's entirely consistent with this defendant's testimony.

Unidentified Justice: But not an attempted battery.

Mr. Czarnecki: No, an aggravated battery, Your Honor.

Unidentified Justice: But what other than murder would you attempt with a knife?

Mr. Czarnecki: Your Honor, if one, as my client puts it, attempted on a victim, attempted to cut a victim with a knife, under my reading... and I think I would be free to suggest that the state would agree... of Illinois law, that act without more would constitute an aggravated battery; an attempt to injure with a deadly weapon.

Attempt with a knife could, under anyone's reading, reflect the factual basis for a plea of aggravated battery.

That's all my client's claim has been from the outset.

The Sixth Circuit found that the state had failed to bear a burden beginning with an insufficient record.

And incidentally, the circuit courts have been uniform in finding that when the record is silent, from Boykin, from Henderson, the state bears a heavy burden; a burden to show by clear and convincing evidence that a plea, that total relinquishment of all this defendant, all Robert Longberger's constitutional rights, casting them before the court, must at least be based in the knowledge of the charge to which he is entering a plea.

Unidentified Justice: Well, let's suppose two or three situations.

Suppose that in the Ohio proceeding, after an evidentiary hearing the Ohio court found that this guilty plea was intelligent and voluntary and that he had had notice and knew of the plea.

You would think there would have to be some deference to that in the habeas proceeding.

Mr. Czarnecki: Yes, Your Honor.

Unidentified Justice: Now, suppose the judge says I find it to be a voluntary and intelligent plea and valid.

Would there have to be any deference to that?

Mr. Czarnecki: I think that's too much of a legal conclusion given the fact that--

Unidentified Justice: Well, we have cases and plenty of them that would say that even if all the judge said was I find the plea to be valid.

We have cases that say unless there's some indication to the contrary, that you assume that a knowledgeable judge or a state judge has applied the right legal standard.

Mr. Czarnecki: --Yes, Your Honor.

That's correct, Your Honor, except in this particular case, as I pointed out to you before, the Sixth Circuit has found that even if that finding is to be given deference, even if one reads that phrase broadly enough to mean I find this defendant had actual knowledge of the charge, the record is totally devoid of objective evidence to support that finding.

Unidentified Justice: Well, the record maybe, but that was the finding of the state court.

Mr. Czarnecki: That's correct, Your Honor, but that finding must be supported in the record.

Unidentified Justice: I'm going back to your statement just before Justice White's question to you.

You said he couldn't have thought there were two crimes involved here.

Let me repeat to you again the question: after the judge had gone through all these specific questions, in which admittedly, the word "murder" was left out, but "attempt with a knife", then he said,

"Do you understand by pleading guilty I could sentence you from one to ten on aggravated battery. "

Clearly, nothing ambiguous about that, is there?

Mr. Czarnecki: That's correct, Your Honor.

Unidentified Justice: And attempt, one to 20.

Now, didn't that convey a message that the second crime that the judge was talking about was the much more severe crime of the two?

Mr. Czarnecki: The Court's question would force me into the defendant's mind some 11 years in the past.

All I can represent to the Court--

Unidentified Justice: What would you understand about it?

Let's put it that way.

Mr. Czarnecki: --The standard is not what I would understand--

Unidentified Justice: That there were two crimes, and one was much more serious than the other.

Is that not what almost anyone would understand?

Mr. Czarnecki: --But I don't believe the standard, Your Honor, is what an ordinary person would understand as the state presents, or what any other person would understand.

But rather, what this defendant understood or had notice of in 1972.

Unidentified Justice: I see.

Thank you.

Do you have anything further, Mr. Drake?

Mr. Drake: Yes, Your Honor.

Two points.

The difficulty here is that the respondent endeavors to assume that no evidence had been presented whatsoever, which I believe is Justice Stevens' question... on other words, had not Mr. Lonberger testified at the Ohio hearing... that some burden would have been foisted upon the state of Ohio to validate this plea.

I would note that in Henderson versus Morgan, it was precisely this contention by the state that you're inviting countless collateral attacks to guilty pleas than the court indicated.

Moreover, even without an express representation, it may be appropriate to presume that in most cases, defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.

The burden here was by convincing evidence--

ORAL ARGUMENT OF RICHARD DAVID DRAKE, Esq. ON BEHALF OF THE PETITIONER -- Rebuttal

Unidentified Justice: Let me ask you about that.

We're talking now about the hearing in advance of trial in the Ohio court in support of the state's motion to use the prior plea to aggravate the sentence.

Who went forward with evidence at that hearing?

Who put on the first witness?

Mr. Czarnecki: The respondent.

Unidentified Justice: The respondent, but--

Mr. Czarnecki: It was respondent's motion.

The trial court gave it--

Unidentified Justice: --Was it a motion to prevent the state from using it, rather than a motion for permission?

Mr. Czarnecki: --It was essentially a motion in limiting... it was a motion to dismiss the death penalty specification, but it was essentially a collateral attack on that Illinois guilty plea.

Were it no good, the death penalty specification was, of course, inadmissible.

Unidentified Justice: Well, would you be content to take the position that we can simply look at the Illinois guilty plea proceeding, and that's all the evidence you need?

On the basis of the presumption that you read from the Henderson opinion.

Mr. Czarnecki: That is the presumption, but evidence--

Unidentified Justice: We don't have to get involved in credibility at all.

Mr. Czarnecki: --You don't have to, but--

Unidentified Justice: It was an indictment that charged attempted murder, and even though the judge was a little imprecise in saying... just mentioning the aggravated battery and the word "attempt" without ever using the word "murder", the fact that the indictment mentioned attempted murder and the fact that we can presume counsel normally tell their clients what the charge is, that's enough for your position?

Mr. Czarnecki: --Absent some evidence, credible evidence, by the accused, yes.

Unidentified Justice: No.

Say there was no evidence except what I described.

Would you be willing to rest on that?

Mr. Czarnecki: In this particular record, yes.

There could be guilty pleas.

But you must remember, bear in mind, that this was a plea bargain.

Unidentified Justice: Then our task is limited to two questions, as I see it.

Just look at the indictment and find out if the man was represented by counsel.

Maybe that should be the test.

Mr. Czarnecki: And, of course, whether or not he was arraigned and otherwise notified.

Here there are additional factors that are before the Court by Mr. Lonberger's own admission, Your Honor.

But in answer to your question, that is correct, it would be our position that he bore the burden and it's quite obvious that the Ohio trial court did not credit his testimony.

Unidentified Justice: But in Henderson, didn't they read the indictment to him?

Mr. Czarnecki: No, Your Honor.

That was the--

Unidentified Justice: That didn't appear in the record?

Mr. Czarnecki: --That was the very pivotal in... there were two issues.

One is that he had never been read the indictment or otherwise notified of the charge, because he was indicted for first degree murder in New York and pled guilty to second degree murder.

Unidentified Justice: That's right.

Mr. Czarnecki: Therefore, he was never arraigned on it.

And also, at the hearing, the federal district court found, as a matter of fact, that his attorney had not told him, in this particular case, that the purpose was an element of the crime of second degree murder.

Unidentified Justice: That's in Henderson.

Mr. Czarnecki: That coupled with his intellectual deficiency made it quasi-credible.

Unidentified Justice: Is it clear that the indictment was read to the defendant in this case?

Mr. Czarnecki: He said he was arraigned, despite Mr. Czarnecki's contrary--

Unidentified Justice: He pled guilty to the indictment.

Mr. Czarnecki: --He pled guilty to the original charge--

Unidentified Justice: Not guilty to the indictment.

Mr. Czarnecki: --He pled guilty while represented by competent counsel to the original charges on which he said he was indicted... I'm sorry... arraigned twice.

Unidentified Justice: Was he present when he pled not guilty?

Mr. Czarnecki: He said, they took me before a court and arraigned me.

It's--

Unidentified Justice: What I'm trying to find out is does the record show whether or not the defendant was present when the indictment was read?

Mr. Czarnecki: --Yes, Mr. Lonberger indicated that he was present; that he was arraigned.

He didn't go into any specifies or didn't delineate, did not present any corroborative evidence one way or the other.

Unidentified Justice: I thought he said he went three or four times.

He wasn't clear about any of them, was he?

Did he say he want to court three or more times?

Mr. Czarnecki: He indicated he was arraigned twice and that he had a hearing with the--

Unidentified Justice: Then my answer is which one of these was the indictment read to him?

You don't know.

Mr. Czarnecki: --He did not indicate that it was ever read to him, is the answer.

Unidentified Justice: In fact, isn't it a little stronger than that?

We do have a transcript with at least some of the Illinois proceedings, and that transcript does not include a reading of the indictment to the defendant.

Is that not correct?

Mr. Czarnecki: The transcript you have is only of the guilty plea, Your Honor.

Unidentified Justice: Yes, whatever we have from Illinois; we do have some transcript from Illinois.

That transcript does not include a reading of the indictment to the defendant.

Mr. Czarnecki: That's correct, Your Honor.

Chief Justice Burger: Thank you, gentlemen, the case is submitted.

Attribution:

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Featured:

United States v. Goodwin - Oral Argument

Fri, 09 Jan 2009 14:47:14 +0000

Case:

United States v. Goodwin

Media File:

80-2195_19820421-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF ANDREW L. FREY, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Burger: We will hear arguments next in United States against Goodwin.

Mr. Frey: Thank you.

Mr. Chief Justice and may it please the Court:

I'm sure I can't improve on the arguments that were given in Finley against Murray, so I will stick to the Goodwin case.

This is a case that is here on writ of certiorari to the United States--

Unidentified Justice: Move the microphone closer to you.

I can't hear.

Mr. Frey: --Oh, yes.

Are the microphones there?

Unidentified Justice: Those little tiny microphones, you can pull them just closer to you.

Mr. Frey: I was asked by the Marshall not to move the microphones.

Unidentified Justice: Well, if we can't hear you, though, we'll have to have the reality take over.

Try moving them about two inches nearer to you, gently.

Mr. Frey: All right.

Unidentified Justice: Be careful.

Mr. Frey: Thank you.

Is that any better?

Unidentified Justice: Yes.

Mr. Frey: This case began in February 1976, when a Park Police officer stopped Respondent for speeding on the Baltimore-Washington Parkway.

The officer spotted a suspicious package under the armrest in Respondent's car and asked him to lift up the armrest.

Instead, Respondent got into his car, placed it suddenly in gear, and roared off, knocking the officer onto the rear of Respondent's car and then onto the highway.

The officer recovered, got into his vehicle, and gave chase at high speeds, but was unable to apprehend Respondent.

The officer thereupon filed a complaint in federal magistrate's court in Hyattsville, charging a number of petty and misdemeanor offenses, including a misdemeanor assault charge under Section 113(d) of Title 18 of the United States Code.

A warrant was issued for Respondent's arrest and he was apprehended several weeks later.

He appeared at a preliminary hearing at which he was bound over for trial before the magistrate and released on bond.

He failed to appear for the trial and he was not found until three years later, when the magistrate was advised that he was in jail in Virginia.

Arrangements were made to transport Respondent to Hyattsville, where the magistrate's court is located, and he appeared there on May 24th, 1979.

On that day cases in the magistrate's court were being handled by an attorney from the Antitrust Division who was serving on a two-week detail in the magistrate's court.

She conferred briefly with the Park Police officer--

Unidentified Justice: Are there lots of antitrust cases out there?

Mr. Frey: --No, I think this is a training program for people who want a little court experience.

She conferred briefly with the police officer who had filed the complaint and been the victim of the assault, and she also discussed with Respondent's counsel the possibility of a plea bargain.

However, Respondent indicated that he was not interested in a plea bargain and instead demanded a jury trial on the charges.

Since at the time the magistrate had no power to conduct jury trials, the case was perforce referred to the district court in Baltimore, where Assistant United States Attorney Norton was assigned to handle the case.

As a result of Mr. Norton's reevaluation of the case in the course of his preparation for trial, the original charges were superseded in an indictment containing the felony charge of assaulting a federal officer with a dangerous weapon, in violation of 18 U.S.C. 118.

It is the validity of that charge that is the subject of inquiry today.

In response to Respondent's motion to dismiss on vindictive prosecution grounds, the prosecutor filed an affidavit explaining his reasons for seeking the felony indictment, which were as follows:

First, his assessment of the gravity of Respondent's conduct in connection with the commission of the offense itself;--

Second, Respondent's criminal record, which showed a lengthy prior history of violent crime;--

Third, his judgment that the assault on the Park Police officer was related to a major narcotics transaction;--

Fourth, his belief that Respondent had committed perjury at the preliminary hearing in 1976 when he testified that he had been in Atlanta and not on the Baltimore-Washington Parkway at the time of the incident;--

And finally, Respondent's flight to avoid trial on the initial charges.

The prosecutor further averred that his decision to seek the felony indictment was not motivated in any way by, nor did he ever consider, Respondent's request for a jury trial in district court.

The district court denied the motion to dismiss the felony assault charge, finding that the prosecutor had adequately dispelled any appearance of retaliatory intent.

Respondent was sentenced to five years imprisonment on the charge.

The Court of Appeals reversed.

The Court of Appeals concluded that the simple fact of the return of a more severe charge after the assertion of the right to a jury trial created an appearance of vindictiveness that establishes

"a per se violation of the due process clause, requiring dismissal of the new charges."

It further held that the fatal appearance of vindictiveness could not be rebutted by any explanation of the prosecutor other than a showing that the increased charges could not have been brought in the first instance.

Now, before turning to my argument I'd like to make a couple of preliminary observations about the case.

The first is, I think the Court should appreciate the sweeping effect of the Fourth Circuit's rule, because the rule is really tantamount to saying that in all but a very small proportion of cases the initial charge that's brought by the prosecutor cannot be increased.

All that's necessary to trigger the appearance of vindictiveness and the almost irrebuttable presumption of a due process violation under the Fourth Circuit's holding is the exercise of a right by the Defendant.

And in a criminal case rights start being exercised fast and furious shortly after the initial filing of the initial charges.

And the kind of explanation that the Fourth Circuit would accept to rebut the appearance of vindictiveness and to show that there was no retaliatory motive is strictly limited to what would be an extremely small class of cases.

Now, the second point I wanted to make preliminarily is that the purpose of the vindictive prosecution due process prohibition is not to protect generally against unjustified charging decisions.

The protection against abuse of the prosecutor's discretion generally in charging decisions is the grand jury and the trial and the judicial procedures incident thereto, as well as the political pressures and the supervision within the executive branch over the prosecutor's conduct.

The purpose of the vindictive prosecution doctrine is specifically to protect against a vindictive retaliation for the exercise of a right by the defendant.

Now, here it's important to note that the Court of Appeals readily concluded, in their words, that there was no actual vindictiveness on the part of the prosecutor in this case, and Respondent has never alleged to the contrary.

In fact, it's absolutely clear on the facts of this case that the jury demand was wholly irrelevant to the prosecutor's decision to increase the charges.

Unidentified Justice: Mr. Frey, would you concede that in a case when there is actual vindictiveness involved that the court should make inquiry into that and then--

Mr. Frey: Well, that would--

Unidentified Justice: --base its ruling on--

Mr. Frey: --That would depend on the nature of the claim of vindictiveness.

If we're talking about a situation like Bordenkircher, where there was a retaliation for the refusal to plead guilty as part of the plea bargaining process, there would be no occasion for further inquiry.

But we would agree that in some circumstances the defendant could make a showing that an increase in charges was... appeared to be a--

Unidentified Justice: --Well, xx the proper showing were made, then you would concede that the court under those circumstances could dismiss the xx--

Mr. Frey: --Yes.

But I think it's an important part of our argument that the circumstances in which there might be a proper showing to require such an inquiry are quite limited.

Unidentified Justice: --Yes.

Would you concede it for purposes of a pretrial situation?

Mr. Frey: Well, our argument with regard to the pretrial situation us essentially that there should be no presumption of vindictiveness, that what the Court of Appeals did here and what the courts of appeals have been doing in what we think is a misinterpretation of Pearce and Perry is to equate the mere exercise of a right followed by an increase in charges with a presumed vindictiveness on the part of the Government.

And we do not believe that has any place in the analysis of these cases.

I think we are not prepared to say, and we certainly don't need to for purposes of this case, to go as far as Judge Meritt went in the Andrews case and say that it's perfectly all right for the prosecutor to be vindictive in the pretrial context.

We're not urging that upon the Court in this case.

Unidentified Justice: You're not urging the application of a per se rule either way, in other words?

Mr. Frey: We are not.

Let me just explain how I view the structure of the issues and perhaps our position will become clearer.

It seems to me that every due process vindictiveness claim essentially presents two questions.

The first part... the first question is whether the defendant who is making the claim has shown enough to make out a prime facie case of a due process violation and to shift to the prosecutor the burden of explaining his actions.

Of course, if not enough has been shown, then that's the end of the matter and the motion should be denied.

The second question, if enough has been shown to call for an explanation by the prosecutor, is what kinds of explanations should be deemed acceptable to rebut such a prima facie case.

Now, here the question is whether the Respondent, by simply showing that he demanded a jury trial and that at some time subsequent to that demand more severe charges were returned, did enough to make out a prima facie case of vindictive prosecution.

The Court of Appeals, importing the principles of Pearce and Perry to the pretrial context, has held that those facts suffice to create a presumption if vindictiveness, in effect.

We say that in the pretrial context there should instead be a presumption of regularity in the prosecutor's action and that the burden should be on the Defendant to show concrete and specific facts from which a conclusion of actual vindictiveness on the part of the prosecutor can be drawn.

Now, this presumption of regulatory in prosecutorial charging decisions is the rule in every other context of which I am aware.

This is the only exception.

And I'd like to call to the Court's attention the treatment of selective prosecution claims.

These claims are quite analogous, it seems to me, to vindictive prosecution claims.

Surely the bringing of a prosecution on account of a person's race or political views or religion is every bit as invidious a practice as bringing a prosecution to retaliate against the exercise of a right.

Equally, the possibility of an invidiously discriminatory motive underlying a prosecution is present in virtually every case.

Yet, it has never been thought, and I think it's quite clear, that those things combined are not enough to make out a prima facie case and to require the prosecutor to come in and explain his reasons for his actions, let alone rigidly restricting the reasons for his actions to practically nothing that can justify it.

Now, in Pearce and Perry the Court confronted cases in which vindictiveness appeared to be the most likely explanation for the increased penalty exposure of the defendants, and indeed cases in which no non-vindictive explanation was ever tendered.

In fact in the Rice case, which was the companion of Pearce, the district court found actual vindictive retaliation against the appeal, and in Pearce... in the Pearce case the Court described the state's assertion as nothing more than the naked power to do what it did.

Now, in the pretrial context we submit that the circumstances are entirely different, and this difference consists principally of two elements: The first element is that the exercise of rights by defendants in pretrial contexts is an entirely commonplace event.

It is not likely to provoke a vindictive or retaliatory response by the prosecutor that the defendant has pleaded not guilty, that he's asked for a jury trial, that he's moved to suppress evidence, that he sought a continuance or asked for a severance or a change of venue.

These are everyday occurrences, everyday grist to the prosecutor's mill, and to presume that the prosecutor would react in an unprofessional and unfair manner by retaliating against that kind of occurrence is simply contrary to common sense.

In fact, I submit that the prosecutor generally would be astounded if a defendant exercised no rights in the pretrial context.

Now, not only is the exercise of a right by a defendant in the pretrial context therefore not a likely occasion for a retaliatory response by the prosecutor, but equally the process of preparation for the trial itself will inevitably give the prosecutor a better grasp of the facts of the case and can be expected in some cases to reveal reasons for concluding that the initial charges were too lenient.

So that this is again a context in which it is not unlikely.

Superseding indictments are common.

Sometimes the initial severity of charges is reduced because the prosecutor concludes in his pretrial preparation that they were too severe.

Sometimes the severity is increased because he concludes that it was too lenient.

Unidentified Justice: Mr. Frey, can I interrupt you just a second.

In this particular case, where the argument is made that the increased charges were in response to the jury demand, do you think the prosecutor was under a duty to explain his reasons or not.

Mr. Frey: No.

Unidentified Justice: So your position is he didn't even have to file the affidavit?

Mr. Frey: That's correct, that is our position.

Our position is essentially threefold:

First of all, that the mere showing of the exercise of a right followed by an increase in charges is not enough to make out the prima facie case of prosecutorial vindictiveness;--

Secondly, that looking at the... if you went beyond that, there's nothing about the circumstances of this case beyond those bare facts that might make out... let me back up.

Our view is that there should be no presumption from these facts that the prosecutor acted vindictively.

That does not mean that the Defendant, unaided by a presumption, could not make a showing that in a particular case the prosecutor said, I'll fix that SOB's wagon.

Unidentified Justice: What would it take?

I guess one of the questions is, when if ever is a factual inquiry appropriate or necessary?

Would you concede it could ever... is there anything he could do to require the prosecutor--

Mr. Frey: Yes.

I would think that there may be circumstances in which it could be demonstrated from the particular facts of the case that the prosecutor acted vindictively.

He may have said something.

That would be one category of case.

Or his behavior may otherwise appear so inexplicable from looking at the record of the case... this is before asking him for an explanation... that the only conclusion the Court could draw was that he was retaliating against the exercise of a right.

But our basic proposition is that normally in the pretrial context that is simply not a reasonable conclusion.

And what the Court of Appeals is doing is indulging a presumption in these cases, and in the law of evidence a presumption is something that says, if facts A and B are established it is sufficiently likely that fact C follows that we will presume fact C and place the burden on the opponent of that fact to disprove it.

Unidentified Justice: --You said normally.

Mr. Frey, is it normal for a prosecutor to increase the charge when a man asks for a jury trial?

Is that the normal procedure?

Mr. Frey: Let me say, what is common is for a prosecutor to increase charges after they have initially been brought.

Unidentified Justice: No.

Will you answer my question: Is it normal for a--

Mr. Frey: It's neither normal nor abnormal.

Unidentified Justice: --for a prosecutor... sir?

Mr. Frey: I would say it's neither normal nor abnormal.

It's simply, the demand for a jury trial is simply not likely to trigger any particular response one way or the other.

Unidentified Justice: When it does, is it warranted to look into it?

Mr. Frey: Our submission is that it is not warranted to presume from the mere fact that Respondent asked for a trial trial and that subsequent charges were filed that there was vindictive prosecution, and therefore there is... he failed to state a claim upon which relief can be granted.

Unidentified Justice: Couldn't you just ask the prosecutor, well, why did you do it?

Mr. Frey: Well, you could just ask the prosecutor why did you do it.

Unidentified Justice: Aren't you entitled to ask him?

Mr. Frey: Well, our submission is that you're not, but that if you are the kind of explanation that the prosecutor gave here is satisfactory.

Unidentified Justice: Well, isn't the judge within his right to ask, or is the prosecutor--

Mr. Frey: Well, I think the issue is whether the defendant is within his rights to demand an inquiry into the subject.

Unidentified Justice: --Does he have that right?

Mr. Frey: No, not in this... our position is, not in this context.

And let me turn to the practical aspects of this problem to explain just why we think this is so.

When the... as I said at the outset, it's almost inconceivable, except in a case in which there's already been plea negotiations and the defendant has agreed to plead guilty before any charges are actually filed, it's virtually inconceivable that rights will not have been exercised by the defendant in a criminal case by the time a superseding indictment is returned.

So when we say, does the defendant have a right to have it inquired into, what we are essentially saying is that every time a superseding indictment has been filed the defendant has the right to call upon the court, and the court has the duty to respond to this call, get in the witnesses, get in the prosecutor, make the prosecutor give an explanation, have a hearing, in the Ninth Circuit have a pretrial appeal.

The amount of resources, the amount of delay that is potentially involved is much too great for the problem that this procedure is designed to guard against.

Unidentified Justice: Well, you've added a lot to mine.

Mine is that the defendant asks and at the defendant's request the judge says: Mr. Prosecutor, why did you raise this charge, period.

That's all he asks.

And that takes how much time?

Mr. Frey: Well, that may or may not take very long, depending on the procedures that ensue.

I assume normally a prosecutor would have no objection to satisfying the judge's curiosity.

Unidentified Justice: I am not interested in whether the prosecutor has objection.

I'm interested as to whether the judge has a right to ask him.

Mr. Frey: Well, I think that the judge probably has a right to ask him virtually anything that he'd like to ask him.

Unidentified Justice: But if the judge asks him, he's exercising a discretionary right.

There's not going to be any appeal or any appellate review of any kind of whether the judge should or shouldn't have asked him.

If he asked him, the prosecutor is probably very likely to respond, isn't he?

Mr. Frey: He's probably likely to respond.

But I think--

Unidentified Justice: Well, doesn't he have to respond to a judge's request?

Mr. Frey: --Well, yes, Justice Marshall, I think he should respond.

But I think the question that the Court has to focus on is whether the defendant has the right that the Court of Appeals said he had in this case, to have this hearing at which the prosecutor is essentially gagged.

Unidentified Justice: I'm not talking about this case.

I said, in an ordinary case, you remember, the man's charge is raised after he asks for a jury trial.

And he says: Judge, this man has raised my charge after I asked for a jury trial.

I'd like to know why.

The judge says: I agree.

Mr. Prosecutory, why?

The prosecutor is obliged to answer in my opinion.

Mr. Frey: I will accept that the prosecutor should answer that question.

But I'm not sure what consequences would follow--

Unidentified Justice: And that doesn't take a whole lot of time.

Mr. Frey: --But that's not the issue, Justice Marshall, in this case.

The issue is not whether the prosecutor has to give an answer.

The issue is whether, when he acts, he is presumed to act vindictively and he has a heavy burden of rebutting that presumption, and whether his hands should be tied behind his back--

Unidentified Justice: I understood that this court cast aside the vindictiveness point, on page 4A of the appendix to your petition for certiorari:

"On this record, we readily conclude that the prosecutor did not act with actual vindictiveness in seeking the felony indictment."

Mr. Frey: --But they still reversed the Respondent's conviction.

Unidentified Justice: But they said that.

Mr. Frey: They did say that.

Unidentified Justice: You can't go beyond what they said, can you?

Mr. Frey: Well, we're not... I think we'll ask you to look behind what they said or look at it through specially colored glasses.

I'm not asking you to look behind what they said.

Unidentified Justice: Mr. Frey, before we leave this point, if the judge asks the prosecutor, why did you enhance the charges after a jury demand, presumably nine out of ten prosecutors would say, well, I reexamined the case and I concluded this was the appropriate charge, you know, the appropriate charge for these facts.

Then it seems to me the more serious question is, does he have to get on the witness stand and be subject to examination and all that.

Would there ever be a situation in your view where the prosecutor would have to subject himself to cross-examination?

Mr. Frey: Well, let me say this, Justice Stevens.

We would far prefer that procedure to the rule of the Fourth Circuit which prohibits explanation.

Unidentified Justice: I understand.

Mr. Frey: And while it may be unseemly in some way to have the prosecutor get on the stand and to have the judge and the defendant probing his motives in making a charging decision, it is far preferable to throwing out the case the prosecutor--

Unidentified Justice: Are there facts that you think could be alleged by a defendant that would create a sufficient appearance of vindictiveness to require that kind of procedure?

Mr. Frey: --I think there probably could be.

That is, we have not taken the position that no matter what the prosecutor does or why he does it in the pretrial context there would never be a due process vindictiveness violation.

Unidentified Justice: What you're saying as I understand you is that the mere sequence of events which we have in this case is not enough to create the kind of presumption that requires that kind of response.

Mr. Frey: And that in general, the mere sequence of the exercise of a right followed at some point in the future by an increase charge is not enough.

Unidentified Justice: But in this particular case you would have said it would have been wrong for the judge to require either the affidavit or any kind of an evidentiary hearing.

I think that's what you--

Mr. Frey: I think he should have denied the Defendant's motion to dismiss without any hearing.

Unidentified Justice: --I understand.

Mr. Frey: But I don't wish to say that he's not entitled to ask the prosecutor--

Unidentified Justice: It's your position that this alone is not enough?

Mr. Frey: --That is our position.

Unidentified Justice: And didn't you also say that you can conceive of situations where it would require the judge--

Mr. Frey: I can also conceive in selective prosecutions of situations.

But what is necessary... and the same rule ought to be true here... is a very specific showing of particular facts by the defendant from which the most reasonable conclusion is that there has been a vindictive retaliation by the prosecutor.

If he's done that, then I think it may be appropriate to call upon the prosecutor to respond.

Unidentified Justice: --Mr. Frey, would the facts alleged here be sufficient in your view to allow the Defendant to request a hearing on the question?

Mr. Frey: No.

Unidentified Justice: Even though he had the burden of going forward at the hearing?

Mr. Frey: Well, but this is like in a civil case if you file a complaint which fails to state a claim upon which relief... fails to state facts that make out a claim upon which relief can be granted.

You're not entitled to a trial to see whether something might be there.

Unidentified Justice: All right.

So in your view, these... this particular situation was not enough to even enable the Defendant to request a hearing?

Mr. Frey: That is our position, and that is our position generally, not just about this case but about most of the vindictive prosecution cases that we've lost, particularly in the Ninth Circuit, where nothing more has been shown than the exercise of a right followed by an increase in charges.

Unidentified Justice: Mr. Frey, I'm confused a little bit by the Government's position.

Does it depart at all from your brief?

Mr. Frey: No.

Unidentified Justice: Because in your brief you say there's no logical basis for extending Pearce and Perry beyond their setting to the pretrial stage of a criminal prosecution.

Mr. Frey: Well, what we are referring to there is not the notion that due process applies to vindictive responses, but the presumption of vindictiveness and the prophylactic rule of Pearce and Perry, which restrict the kinds of explanations that can be offered.

Those are the things that we say don't belong in the pretrial context.

We don't say there can never be a due process claim.

But what Pearce and Perry did was they said, when you've shown an appeal followed by an increase in charges or an increase in penalty exposure, that's it, the prosecution is finished, due process is violated.

Unidentified Justice: Are you saying in the pretrial stage it should be an actual factual inquiry and a certain amount of evidence to be adduced by the defendant before any inquiry is made?

Mr. Frey: That he has to overcome a presumption of regularity in the prosecutor's charging decision.

I think I'll reserve the balance of my time for rebuttal if I may.

Chief Justice Burger: Mr. Spence?

ORAL ARGUMENT OF PAUL W. SPENCE, ESQ. ON BEHALF OF RESPONDENT

Mr. Spence: Mr. Chief Justice and may it please the Court:

This case is about a Defendant who was originally charged with a petty offense, a misdemeanor violation, who was brought before a United States magistrate by the prosecution for trial at a time when the Government was satisfied to proceed on said petty offense and misdemeanor violations.

The Respondent's only action at that time, indeed his only action subsequent to that time, was his exercise of his right to a jury trial.

As a consequence, this individual was forced to face felony charges.

No matter how the actions of the second prosecutor in this case can be characterized, no matter how benignly labeled those actions can be, this situation smacks of the sort of prosecutorial reaction to the exercise of a procedural right that was proscribed by this Court in Blackledge v. Perry.

But for Mr. Goodwin's election for a jury trial, he would have disposed of his case in the misdemeanor, petty offense context before the United States magistrate in Hyattsville.

Unidentified Justice: Are you stating that as a factual matter, Mr. Spence, that either the Court of Appeals or the district court reached the factual conclusion that the Government upped the ante because of his invocation of the right to a jury trial?

Mr. Spence: Mr. Justice Rehnquist, it's more of a practical conclusion.

Assuming the court--

Unidentified Justice: Can you answer the question?

Mr. Spence: --As a factual matter, they did not find that actual vindictiveness was present here, in other words, that the jury trial did not prompt the felony charges.

As a practical matter, but for his election of a jury trial, the Fourth Circuit did hold he would not have faced those felony charges.

Unidentified Justice: Well, what does that mean, as a practical matter?

Does that simply mean that that the raising of the charges came after the request for jury trial?

Mr. Spence: Well, that's certainly part of it.

But the other part, the more important part of it, is had this individual not elected his right to a jury trial, which by procedures brought his case to Baltimore for the jury trial, he would have remained at the Hyattsville court for the misdemeanor, petty offense prosecution.

Unidentified Justice: Would have been tried before the magistrate.

Mr. Spence: That's correct, Your Honor.

Therefore, but for his election the procedures, the system would have worked to keep him in Hyattsville, and the extra procedures that followed would not have occurred.

Unidentified Justice: But the Fourth Circuit explicitly ruled out vindictiveness, malice, in its opinion.

Mr. Spence: That's correct, Your Honor.

Unidentified Justice: So that takes the legs off of the table that you were just erecting, doesn't it?

Mr. Spence: Well, I don't believe so, Your Honor.

This case certainly is not and has never been one involving actual vindictiveness.

Petitioner is certainly correct in stating that.

It has been conceded from the outset that no actual vindictiveness in the terms of a subjective malice or bad faith on the part of the second prosecutor was present.

However, the prophylactic measure established by this Court in Blackledge v. Perry does not require or wait for a showing of actual vindictiveness or a showing of actual retaliatory motivation on the part of the Government.

That's made very clear by this Court in Blackledge, which explicitly states that they did not find actual vindictiveness in the case before it and disclaimed any reliance on such a finding.

Rather than a remedial rule which is designed only to cure the effects of actual vindictiveness, the Blackledge Court fashioned a preventive measure that went to or was designed to purge not only the possibility of actual retaliation, actual vindictiveness, but also to free defendants from the fear of such retaliation.

This Court recognized in that case, as well as in the preceding case of North Carolina v. Pearce, that due to the extraordinary difficulty of proving actual motivations and subjective intent of a judge or a prosecutor, any requirement of actual vindictiveness would completely undermine the due process protection that this Court desired to erect.

Therefore, in recognition of that, the Blackledge Court devised this prophylactic measure which is applicable in those situations where the hazard of vindictiveness is sufficient enough to implicate the underlying rationale of that measure.

Contrary to the Petitioner's counsel's assertions, it is not a situation, it is not a measure, that is applicable every time there is an exercise of a procedural right and a certain upping of the ante, so to speak, follows it.

That is not the ruling of Blackledge v. Perry.

It is also not the ruling of the Fourth Circuit Court of Appeals.

The bottom line analysis is that only in those situations that generate a substantial, a realistic likelihood of vindictiveness will they then apply a prophylactic measure, particularly in the pretrial setting.

Obviously, the exercise of procedural rights by the defendant is indeed commonplace.

Obviously, reactions in certain ways by the prosecutor is as well commonplace.

Not every one of those interplays will give rise to the application of the prophylactic measures set forth in Blackledge.

However, in those situations where the circumstances do give rise to the requisite substantial realistic likelihood of vindictiveness, then the prophylactic measure does apply.

Both the Court of Appeals in this case as well as the trial court, recognizing the similarity between this case and the facts in Blackledge v. Perry, held that a realistic likelihood of vindictiveness was present, that the hazard inherent in the facts before the court were substantial enough to warrant the application of the prophylactic rule.

Unidentified Justice: Mr. Spence, do you think the Court of Appeals rule here that, including among the pretrial activities of a defendant the request for a jury trial, that would trigger this presumption that you're talking about, this prophylactic rule, was based on its assessment of how often after a request for a jury trial a prosecutor does or does not increase the charges?

Mr. Spence: I would have to say no, Mr. Justice Rehnquist, because certainly no facts, no empirical data, was before the court at that time.

Unidentified Justice: What do you think it's based on?

Mr. Spence: Well, I think it's based on, the Court of Appeals' holding in this case, Your Honor, is based on the facts before it, which indicates that whatever ongoing investigation, whatever pretrial preparation which the Government asserts in justification for the felony charges, was indeed completed prior to the May 24, 1979, appearance by Mr. Goodwin before the magistrate.

Thus there is indeed no justification or no changed circumstances or new evidence subsequent to the exercise of the jury trial right that could have justified the felony charges.

Therefore, rather than relying on empirical data which would lead one to conclude that the only possible basis for the increased charges was vindictive motive, it looked to the facts in this case and found simply that the jury trial right preceded the increased charges and that nothing... no intervening circumstance or changed circumstance came after the jury trial right and the increase of charges--

Unidentified Justice: Mr. Spence, isn't there always an intervening circumstance, namely that the lawyers are getting ready to try a case instead of just file some pleadings?

Doesn't that almost always generate a reassessment of the case?

Mr. Spence: --Well, there's no question, Your Honor, that there is always pretrial preparation--

Unidentified Justice: Which often leads to a different appraisal of the seriousness of the offense.

Mr. Spence: --Our position, Your Honor, would not preclude the bringing of further charges if that reappraisal or ongoing investigation disclosed new facts that would justify new charges.

That is not the case before the Court, however.

The case before the Court is a situation where those facts that are offered in support of the new charges were known to the Government, perhaps not to the second prosecutor but to the Government, in its entirety prior to the May 24, 1979, election by Mr. Goodwin of his right to a jury trial.

Unidentified Justice: What about his failure to show up.

Mr. Spence: No question, Your Honor, that Mr. Goodwin's absence from the jurisdiction for three years, his failure to appear at trial, is obviously a justification for that charge and perhaps greater charges.

The factor of his absence from the jurisdiction was obviously known to the Government in 1976, for the next three years up until the time of his return on May 24, 1979.

At that time, our position certainly would not require the Government to stand still or to stand pat on those charges which they brought three years ago.

They were entirely able to bring new charges at that time, not only a failure to appear charge but greater charges.

However--

Unidentified Justice: Mr. Spence, there have been comments in some of the writings along here that your position, if it prevails, will force prosecutors to throw the works at the defendant at the very start of every case.

Do you have any comment on that?

Mr. Spence: --Yes, sir, Mr. Justice Blackmun, I do, a couple.

First of all, we believe that that's speculative.

Unidentified Justice: This would be counterproductive if it happened, wouldn't it?

Mr. Spence: If the Government's position is correct, then indeed it would be a counterproductive effect to our application in this case.

However, we believe, first of all, it's speculative.

It's certainly unclear at least, and there's certainly no empirical data establishing that that in a great majority of cases is not what happens already.

Second of all, even if this rule went through, as we suggest, this Court follows the Fourth Circuit Court of Appeals, there is no indication that that's indeed what the prosecution will do in the future, that is bring the most serious charges at the outset.

Perhaps more importantly, as Your Honor noted in your dissent in Bordenkircher v. Hayes, it is perhaps far preferable to require the Government to do just that, to bring the charges at the outset, to have the Government be content with those charges it first brings and wants to justify to the public, to have out in the open their charging decision, to have defendants know what they're in for in the beginning, rather than behind the scenes upping the ante and having the defendants in the dark as to what they face, bring the most serious--

Unidentified Justice: There could be some defendants who wouldn't agree with you.

Mr. Spence: --I'm sorry, Your Honor?

Unidentified Justice: There could be some defendants who wouldn't agree with you.

Mr. Spence: Certainly--

Unidentified Justice: That you should start off upping up the charges.

Mr. Spence: --Certainly we don't agree... certainly we would not ignore--

Unidentified Justice: What do you need to trigger the automatic rule that you want?

One, that the charge is increased?

Is that enough?

Mr. Spence: --Well, that's certainly part of it, Your Honor.

You certainly need--

Unidentified Justice: My question was, is that enough?

Mr. Spence: --No, sir.

Unidentified Justice: That's not enough?

Mr. Spence: No, sir.

Unidentified Justice: What else do you need?

Mr. Spence: You need a motivation on the part of the prosecutor to discourage the exercise of that right.

You also need--

Unidentified Justice: Well, if I understand the Government, if you can show it they don't mind you showing it.

And the Fourth Circuit ruled out the motivation that you're driving at, did they not, in their opinion?

Mr. Spence: --The Fourth Circuit clearly did not rely on any actual vindictiveness.

Unidentified Justice: Well, what else is there in the case?

Mr. Spence: Well, there's much, much more to the case than merely actual vindictiveness.

This Court in both the North Carolina v. Pearce and Blackledge v. Perry noted obviously the primary concern of actual vindictiveness.

But there is also another concern, and that is the problem that other defendants will be chilled in their exercise of these rights, particularly the exercise of a jury trial right, by the knowledge that the stakes can be increased if they do exercise this right.

There is this secondary goal of the prophylactic measure.

It does not focus only on actual vindictiveness, but also goes to remove the apprehension of vindictiveness.

The objective reality of vindictiveness which was sought to be proscribed by the measure in Blackledge v. Perry is precisely that objective reality or circumstances that exist in this case and which the Fourth Circuit found generate a realistic hazard of vindictiveness sufficient at that point to generate a presumption of prosecutorial misconduct.

Unidentified Justice: What if the prosecutors in the Fourth Circuit, or some of them, senior prosecutors, issued a memorandum to the staff lawyers, the Assistant United States Attorneys in the case of the federal: Hereafter, after... once you have arrived at the proper charge, you will increase it by the next higher offense to enhance our bargaining position with the defendant.

Is that prosecutorial vindictiveness?

Mr. Spence: And they do that in the event that a jury trial is required?

Unidentified Justice: Just a flat rule.

Every time that they've decided they have a manslaughter case, then they're going to push it up to some kind of a homicide, other homicide, or if it's a second degree, if there are degrees in the jurisdiction, push it up to first.

Mr. Spence: That, Your Honor, brings in to some extent the notions established in Bordenkircher v. Hayes, and that is, where a defendant is given a free choice and full notice of what the consequences are, then perhaps the punitive aspect of actual vindictiveness will be allowed.

In the situation which Your Honor posits, I believe that the generalized threat, and perhaps even the vague threat, of adding charges should a right be exercised would be insufficient to bring that context into the Bordenkircher v. Hayes context and still be within the rationale of Blackledge v. Perry.

Obviously, we recognize the difference in context between this case and that in Blackledge v. Perry.

But any distinction between pretrial and post-trial setting is relevant only to the extent that it reflects on the prosecutorial interest in discouraging the exercise of a right.

We do not argue, and we believe the Court of Appeals did not state, that any exercise of a right pretrial followed by the upping of the ante generates a presumption of prosecutorial misconduct.

We believe that is not their holding.

We do not urge that ruling to this Court.

Rather, we only state what Blackledge states, and that is when that scenario, when that procedural context with other circumstances generates the substantial hazard of vindictiveness, at that point there is a presumption of prosecutorial misconduct, at which point the Government must justify the increase in charges.

Unidentified Justice: Mr. Spence, why isn't the defendant adequately protected by a rule which would allow for dismissal if there is actual vindictiveness, but not otherwise?

Why isn't that entirely adequate?

Mr. Spence: That would go part of the way, Justice O'Connor.

However, Blackledge requires one step further.

First of all, it requires a freedom of apprehension of actual vindictiveness, as opposed to only actual vindictiveness.

More importantly, however, I think the rule which Your Honor advances would simply generate the type of litigation, the type of inquiry into the subjective intent of judges and prosecutors, which this Court in Pearce and Perry has decided is just not appropriate.

Unidentified Justice: Do we have to make that kind of an inquiry in selective prosecution claims?

Mr. Spence: I believe with respect to selective prosecution this Court has decided to require defendants to make the preliminary showing insofar as the substantial hazard of vindictiveness.

That's what this Court has required in those areas.

Unidentified Justice: Well, why shouldn't this be treated in the same fashion?

I think that's how this case should be treated, Your Honor.

As to selective prosecution cases, I am frank to admit that I am not positive as to the standard which this Court would require in analyzing such claims or in analyzing the Government's rebuttal of such claims.

We would only state there is a difference here, and that is a difference set up by this Court, that the presumption of prosecutorial vindictiveness will arise when that realistic likelihood of vindictiveness has been shown at the outset by the defendant, when he has met his initial burden to show that the circumstances existent in the case generate the substantial hazard of retaliation.

Has this Court ever decided a selective prosecution case?

Mr. Spence: It has.

Unidentified Justice: What?

Mr. Spence: I believe the most recent one in which this Court found invidious selective prosecution was in the Wick Woe case sometime ago, Your Honor.

Unidentified Justice: Wick Woe v. Hopkins?

Mr. Spence: Hopkins, yes, sir.

Unidentified Justice: That was some time ago.

Sort of before he was born.

Mr. Spence: The difficulty, as mentioned just recently, in exploration of the actual motivations of a prosecutor or a judge is no less significant here than it is in the post-trial setting, and certainly warrants the application of the prophylactic measure only in those narrow instances where the realistic likelihood of vindictiveness is present.

Bordenkircher v. Hayes, frequently and consistently relied upon by the Government in this case, does not either advance or support its position with respect to the sole importance of actual vindictiveness or the nonapplicability of Blackledge v. Perry in the pretrial setting.

The Bordenkircher v. Hayes decision by this Court rests on the express determination that plea bargaining is an essential component to the administration of the criminal justice system, and that it is the give and take process of plea bargaining, the fact that the defendant knows what he is in for, knows the consequences of his elections that voids that process of any punitive aspects.

The key elements are those--

Unidentified Justice: But you don't think it would be punitive if the prosecutors deliberately, as a matter of regular practice, always enhanced the charge as I suggested in the hypothetical?

Mr. Spence: --Your Honor, if in this case or in any case such as this the prosecutor said if you exercise your right to a jury trial we will then do A to you, in other words, a specific threat as to what they would do, in that case we believe Bordenkircher v. Hayes would control and in effect allow that actual vindictiveness.

However, the distinction between Blackledge and Bordenkircher and between this case and the situation Your Honor advances is the simple fact that the Respondent in this case had no choice as a matter of fact.

He had no idea, no notice that if he exercised his right to a jury trial these new and substantially higher charges would be brought against him.

That simple fact completely obviates or undermines any reliance by the Government on Bordenkircher v. Hayes.

We submit that Blackledge v. Perry stands unaffected by this Court's ruling in Bordenkircher v. Hayes, requires affirmance of the Court of Appeals decision.

The Government refers to ongoing investigation and pretrial preparation that provided the bases for more serious charges against Mr. Goodwin.

However, a review of the record reveals quite simply that prior to the return of the defendant to Hyattsville for trial in May of 1979, prior to the Government in effect committing itself to a trial on the petty offense and misdemeanor charges, the prosecution had that information which it now asserts justified the felony indictment.

The ongoing investigation which is spoken of by the Petitioner was in effect completed prior to May 24, 1979.

The office in charge, the victim, was also in effect the investigating agent.

He had found out about Mr. Goodwin's record.

He had found out about Mr. Goodwin's alleged participation in narcotics trafficking.

Obviously, the Government at the time prior to his election of a jury trial right were well aware of his flight, were well aware of the possibility of the perjury aspect of the preliminary hearing, and of course were aware of the seriousness and the nature of the charges.

All these factors were known to the prosecution prior to Mr. Goodwin's election for a jury trial, yet they were content to proceed to trial at that time.

There was ample opportunity for the prosecutor and the prosecution to reassess the charges.

Certainly in no way did the defendant preclude any opportunity for such re-evaluation.

All the prosecution in this case or in other cases need do to avoid the limitations of the Court of Appeals or of this Court in Blackledge v. Perry is to make informed appropriate decisions to prosecute at the outset.

Respondent's position is simply that the decision below is required by this Court's previous holdings in North Carolina v. Pearce and Blackledge vs. Perry.

We are not arguing... and as I believe I made clear already... that the prophylactic rule is always applicable in the pretrial setting.

Rather, it is applicable in the pretrial setting as the post-trial setting only when a substantial hazard of vindictiveness is set up by the circumstances.

We are not asking this Court to adopt a rule or to continue a rule that will generate inappropriate litigation.

First of all, only narrow circumstances will justify an inquiry, will justify the application of the presumption of prosecutorial vindictiveness.

Further, this Court or other courts certainly would be entitled to fashion a preliminary procedure such as that fashioned in Franks v. Delaware where the defendant would have an obligation to make a substantial preliminary showing requiring such an inquiry which this Court is concerned about.

Perhaps even more importantly, if this Court eschews reliance on Blackledge because there is no actual vindictiveness in this case, this Court and other courts will be left with a standard which will require explorations into the subjective intent and motivations of prosecutors.

Every word, every deed, every action of the prosecutor will come under scrutiny.

This would be precisely the type of litigation, be precisely the unseemly task which this Court tried to avoid in Blackledge v. Perry that would now come about by only requiring actual vindictiveness.

Finally, we are not advocating that this position will unduly restrict prosecutorial discretion.

Obviously Blackledge v. Perry to some degree imposes a restraint in the name of due process upon the prosecution.

However, as in this case, it is not unreasonable restraint if proper prosecutorial procedure is followed at the outset.

We are not asking for any change in procedure.

The present system and procedures allows for deliberation by the prosecution.

This Court's opinion in Lavasco, or United States v. Lavasco certainly establishes that the prosecution is under no specific or strict time restraints with respect to the bringing of charges.

There is certainly plenty of time generally, certainly plenty of time in this case, given the fact that the prosecution did have the information available to it prior to the defendant's election of a jury trial to make a decision that it would be content to live with throughout the proceedings.

Unidentified Justice: What happens, Counsel, if in the federal system a man is charged with selling cocaine and the day before the trial they discover that the person that he sold the cocaine to was a child, and they changed the indictment to a request for the death penalty?

They couldn't do it, could they, under your theory?

Mr. Spence: Your Honor, we... no, no, sir.

We believe that if new information arises subsequent to the exercise of procedural right that legitimately and justifies the bringing of new charges, then it's permissible.

The Fourth Circuit opinion which does indeed hold that the only way the prosecutor could have justified the increased charges in this case was to show that the charges could not have been brought at the outset is a simple recognition of the fact that that was the only explanation in this case.

The information supporting the felony indictment was known to the prosecution prior to May 24, 1979.

It was known through Officer Morrissette and the prosecutor at Hyattsville, this information which the second prosecutor ultimately relied upon for the bringing of a felony indictment.

The Court of Appeals did not address that situation where subsequent to the exercise of a jury trial right new information was garnered.

Our position, of course, is that the Fourth Circuit is right, but this Court need not go so far as the Fourth Circuit did to affirm its decision.

The facts before this Court and before the Fourth Circuit are very narrow.

A situation where an individual will go before the magistrate and then exercise a jury trial right with potential for higher charges is a fairly rare one.

However, the point in this case is simply that due to the officer's investigation, the prosecutor's role at Hyattsville, indeed, the second prosecutor's knowledge of some of the background facts prior to the exercise of the jury trial right, there were no new circumstances, no new evidence that would have justified the increased charges.

If there had been, we probably would not be here, such charges would have been justified.

Certainly in your hypothesis, Mr. Justice Marshall, we believe the added charges would be appropriate.

Unidentified Justice: What about the situation of one prosecutor who is simply either inexperienced or incompetent and he makes a bad judgment.

The staff cannot re-examine that judgment?

Mr. Spence: Your Honor, we believe the--

Unidentified Justice: His superiors cannot re-examine it?

Mr. Spence: --We believe under these circumstances, Your Honor, due process of law would outweigh the interest in allowing the Government to reassess the decision of one of its own.

Certainly the Government was acting as a unit here.

There is no valid contention, we believe, that simply because the first prosecutor was located in Hyattsville, away from the Baltimore prosecutor's office, that that should justify a re-evaluation or an entirely new assessment of the procedures.

Referring this Court to the plea bargaining cases, obviously one individual must know what the other individual is doing; the left hand must know what the right hand is doing.

The prosecution operates as a unit.

We suggest to the Court that if the Government--

Unidentified Justice: Well, this rule will govern the prosecutor... that you are advancing will govern a prosecutorial office with 100 prosecutors as well as one with two or three.

Mr. Spence: --That's correct, Your Honor.

Unidentified Justice: And are you seriously suggesting that with 100 prosecutors, as you put it, the right hand must always bound to know what the left hand is doing?

Mr. Spence: Yes, sir.

Unidentified Justice: Oh.

Mr. Spence: Particularly.

For example, again referring to the plea bargaining cases, I think it can be stated with accuracy that should one of 100 prosecutors make a firm plea agreement, certainly any of the other 99 prosecutors will be bound by that.

We believe the situation here is no different.

Unidentified Justice: This is quite a different matter from a plea bargaining case.

Mr. Spence: Well, there certainly are elements of due process that are implicated in both situations, we believe, Your Honor.

And certainly--

Unidentified Justice: I believe that what you are arguing for is kind of a mini-double-double jeopardy, isn't it, that it doesn't start when the jury is empaneled but when the indictment is first returned, that the prosecutor would be best advised to just get everything out on the table right then because if he doesn't, there's going to be judicial inquiry into why he didn't from then on.

Mr. Spence: --There are certainly, Your Honor, double jeopardy implications in this entire analysis.

However--

Unidentified Justice: But is that really sound, because we have held double jeopardy starts when the jury is empaneled.

It doesn't go before that.

Mr. Spence: --Due process rationale advanced by this Court, although perhaps having implications of double jeopardy principles, is not confined by the double jeopardy approach.

Indeed, a significant difference would be that if a prosecutor is negligent or does make a mistake the first time around, the defendant does not walk free and clear as in a double jeopardy situation where if double jeopardy applies, the defendant may be free to go.

In this situation the negligence would only go so far as to free the defendant of the more serious charges.

We believe that if the information is known to the Government, if the one out of 100 attorneys, Chief Justice Burger, are aware of the facts, that the interest in encouraging proper prosecutorial procedure should be considered by this Court, and that is mistakes occur, as perhaps in this case occurred when the prosecutor did not act on that information to which he had access to and to which he knew, that any cost because of that mistake should be borne by the Government, that the appropriate response is not the sacrifice of due process interests which this Court has recognized in North Carolina v. Pearce and Blackledge v. Perry.

Thank you.

Chief Justice Burger: Very well.

Mr. Frey, do you have anything further?

ORAL ARGUMENT OF ANDREW L. FREY, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Frey: Yes.

I have to take strenuous issue with several characterizations of my colleague about what is going on here.

And the first of these has to do with his confusion of the prosecution with the prosecutor.

The prosecution, in his view, includes the police.

Let's keep in mind... and although I don't want to concentrate too much on the particular facts of this case... these initial charges were brought by a police officer.

Now, the prosecutor who allegedly had an adequate opportunity to make a binding decision... and let me say this is not just punishing the Government if you don't allow the increase in charges, but punishing the public at large... this is a prosecutor who was assigned to the Hyattsville Magistrate Court, and what happens there is she walks in in the morning, she is handed 20 or 30 files of cases that are on the docket that day, she struggles as best she can with that.

The idea that the Government should be bound by what happened at that initial proceeding and should be barred from bringing what are otherwise entirely appropriate charges seems to me quite indefensible.

Now, let me say for example, suppose the U.S. Attorney had a policy that he announced... and we don't need to go this far, but suppose he had a policy that said whenever a case is going to go to trial we are going to assign a prosecutor to review the initial charge with great care to determine whether it was too severe or too lenient or whether it should be changed.

This is announced policy.

Now, I find it hard to believe that such a policy would violate the due process clause of the Constitution.

Yet that is the inescapable conclusion if you agree with my colleague and with the Court of Appeals.

Now, let me turn to this question of whether the exercise of the right to jury trial is only one of a narrow category of cases in which there is a substantial hazard of a vindictive response.

The exercise of a right to a jury trial is one of the most routine, common occurrences in a criminal case.

If that is enough to cause a prosecutor to retaliate vindictively and out of spite against the defendant, then any exercise of a right by a defendant at the pretrial stage is going to be enough.

Now, in fact, the prosecutor... the Respondent says in his brief it is a lot of work for the prosecutor to have to try a case instead of having it tried in Magistrate's Court.

That does not distinguish the case from Colten v. Kentucky where it is a lot of work for the judge to have to try the case at the second level when, if the defendant did not seek a trial de novo, the judge would not be burdened with that extra effort.

Also, with respect to Justice Blackmun's question, the Court in Colten said precisely the same thing.

They said that the first level judge was likely to impose a higher sentence if he was aware that the sentence he was imposed would limit the sentence that could be imposed if a trial de novo was sought.

The same kind of thing is going on here.

The prosecutor plainly has incentives to bring higher charges where the prosecutor himself has brought the initial charges and not, as here, a police officer.

And also I might say that from talking to prosecutors in the Ninth Circuit where we have had most of our vindictive prosecution case and most of our losses, there is unquestionably a chilling effect on the prosecutor's decision to re-evaluate the case because if even, no matter how appropriate they may feel some superseding or changed charge is, they know that if they bring that charge there's going to be a full dress hearing in the District Court, followed by an appeal, and it is just more grief than it's worth, and it's too bad that the appropriate charges can't be brought, but in most cases that is the result of a rule like this.

Now, I also wanted to point out that Respondent has really drawn back from the Court of Appeals rule as to what kind of justifications are acceptable because the Court of Appeals said we would have to show that the charges could not have been brought, and by that I think they meant we would have to show that we didn't know or have evidence of some aspect of the offense behavior itself.

In this case we knew all the facts about the offense, but there were additional facts that came along later on that properly entered the prosecutor's discretion and judgment that the Fourth Circuit would not--

Unidentified Justice: Are you suggesting the cure for this is for all prosecutors to make a preliminary decision and then up it one or two points?

Mr. Frey: --Well, I would not recommend to prosecutors that they do that, but that is where the Court would be driving them with such a ruling, yes.

Chief Justice Burger: Very well.

Thank you, gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Corbitt v. New Jersey - Oral Argument

Sun, 20 Jun 2010 20:42:52 +0000

Case:

Corbitt v. New Jersey

Media File:

77-5903_19781003-argument.mp3

Related Transcript:

77-5903_19781003-argument.xml

Transcript:

Argument of James K. Smith

Chief Justice Warren E. Burger: We'll hear arguments next in Corbitt against New Jersey.

Mr. Smith, you may proceed whenever you're ready.

Mr. James K. Smith: Mr. Chief Justice, may it please the Court.

At issue in the present case are the sentencing provisions of the New Jersey murder statute.

It is our position that that statute penalizes the defendant's right to jury trial in violation of the Fifth and Sixth Amendments as applied to the states to the Due Process Clause.

It is also our position that that statute violates the Equal Protection Clause of the Fourteenth Amendment by creating a discriminatory classification.

In effect, there are two penalties for the crime of first degree or felony murder in New Jersey depending solely upon whether the defendant has exercise his right to a jury trial.

If the defendant is willing to enter a non vult plea to an indictment for murder then I should stop for the moment and indicate that in New Jersey, we do not allow guilty pleas to the crime of murder.

A defendant must enter a plea of either non vult or nolo contendere both of which are basically the equivalent of a guilty plea.

Justice William H. Rehnquist: Does it make any difference for our purposes or whatever difference there maybe between non vult and nolo contendere from New Jersey?

Mr. James K. Smith: No.

In fact, that the common practices for all pleas to be entered as non vult pleas.

If that defendant enters a non vult plea in a murder case, he maybe sentence either to life imprisonment or to a term of not more than 30 years.

This is true even though the defendant in setting fort a factual basis for his plea may admit that he is committed a felony murder.

The judge is not to make any determination as to the degree of the crime rather the judge has complete discretion to impose any sentence which to him appears appropriate, however, if that same defendant goes to trial on the same facts and is convicted of first degree murder then he must receive the mandatory life sentence and this case of course.

Mr. Corbitt did go to trial in a felony murder case and he was convicted.

Therefore, he had to receive the mandatory life sentence.

Justice Potter Stewart: As I understand it under your system in New Jersey if a defendant pleads not guilty, he may not waive a jury, is that correct?

Mr. James K. Smith: That's true.

If you --

Justice Potter Stewart: He cannot have a bench trial on a guilty plea.

Mr. James K. Smith: All trials must be jury trials.

That's correct.

Justice Potter Stewart: You cannot have a bench trial on a not guilty plea.

That's correct, isn't it?

Mr. James K. Smith: Yes.

Justice William J. Brennan: Under mandatory life sentence, is he eligible for a parole after a number of years?

Mr. James K. Smith: Under the mandatory life sentence, he's eligible for a parole as I understand it in 14 years, 8 months, and 10 days.

Justice William J. Brennan: Is the usual experience still or this actually more often or not release on a parole at that time?

Mr. James K. Smith: I honestly couldn't say Your Honor.

I just know that they are eligible for parole at that time.

In any event, it is clear that in this case, Mr. Corbitt as I said went to trial and was convicted of felony murder at this sentencing, his attorney ask the Court to consider imposing a term of years in the state prison as he could have done had Mr. Corbitt enter the non vult plea.

However, the judge indicated that he was powerless to do so.

Therefore, it is clear that simply because Mr. Corbitt was convicted at a jury trial.

He was denied the right to be sentence to a term of years in the state prison.

We submit that this lost of discretion in the sentencing judge or lack of sentencing alternatives is a severe penalty for defendant to pay, simply because he is exercise his constitutional right to a jury trial.

Justice William H. Rehnquist: Mr. Smith, you cited in your brief our decision last year Bordenkircher against Hayes and this case strikes me as not too much different from the New Jersey legislature is simply enacting in the law but the prosecutor actually did in Bordenkircher.

Mr. James K. Smith: Well, I think there's a clear distinction to be made between this case and in Bordenkircher.

Bordenkircher was dealing with the practice of plea bargaining and this Court held that a defendant who engages in plea bargaining and turns down a plea bargain is not penalize for asserting his rights.

In New Jersey, a defendant who refuses to enter a non vult plea in a murder case but instead goes to trial is penalize for asserting his rights.

Justice William H. Rehnquist: But it has in the New Jersey legislature just specifies the terms of the plea bargaining in effect?

Mr. James K. Smith: The New Jersey legislature as indicated that people who are willing to waive their constitutional rights maybe sentence to almost any term from probation up to life imprisonment.

Justice William H. Rehnquist: But that's what the prosecutor did in Bordenkircher, wasn't it?

Mr. James K. Smith: Well, in Bordenkircher, I think the answer to that is simply the prosecutor could've proceeded on habitual offender indictment at the very beginning so the defendant was eligible for a sentence of life imprisonment on the day that he was first indited as it were he start paid no penalty because he ultimately was sentence to life imprisonment.

Mr. Corbitt of course, could've receive a much lesser sentence had he plead non vult and because he was denied these sentencing alternatives when he was convicted to trial.

He did pay a penalty for exercising his rights.

Justice Potter Stewart: Well on the other hand that he pleaded not guilty?

Mr. James K. Smith: That's true, Your Honor.

Justice Potter Stewart: And then -- and he could've been found not guilty.

Mr. James K. Smith: That's very true.

Justice Potter Stewart: And if having pleaded non vult, he couldn't possible have been found not guilty, isn't that correct?

Mr. James K. Smith: That's very true but I don't think that factor distinguishes this case from United States versus Jackson on which I rely.

Jackson of course was the appeal of a pretrial motion to dismiss which was granted.

In that case, Mr. Jackson could've been acquitted and for that matter he could've been found guilty of kidnapping but the jury could've recommended a sentence of life imprisonment.

Justice Potter Stewart: But in the Jackson case, the defendant could've pleaded not guilty and a way of the jury trial and the judge other than that statute, the federal statute could not possibly have imposed to their sentence.

Mr. James K. Smith: That's true.

Justice Potter Stewart: Only the jury could do it.

Mr. James K. Smith: And this case is different only in that --

Justice Potter Stewart: Here he can't waive with jury trial.

He can't have it --

Mr. James K. Smith: But both trials in murder cases must be jury trials.

But the fact is that in Jackson, this Court held that the risk of the death penalty was in unnecessary burden upon the exercise of the right to jury trial.

And in this case, we submit that it is the risk of this mandatory life sentence which is also an unnecessary burden upon the same right.

Now --

Justice Potter Stewart: And of course Jackson and all the death sentence which is emphasize by your state's Supreme Court.

Mr. James K. Smith: That's true.

I was just getting to that.

The state of course claims that Jackson is limited solely to death penalty cases and I think that this contention is at odds with a long line of cases which have come from this court holding that no significant burden maybe place upon the exercise of a constitutional right.

This Court's analysis has never been limited solely to death penalty cases or even to case involving long terms of imprisonment rather this been held that any sanction which makes assertion of a right costly is forbidden.

And in for example, Garrity versus New Jersey, it was held that a state trooper could not be penalize through lost of his employment because he had asserted is Fifth Amendment Rights.

In Harmon versus Francis, it was held that the filing of a certificate of registration and rule of a poll tax.

It was an impermissible burden upon the right to vote in state elections.

Justice William H. Rehnquist: There was -- but there was certainly a burden in Bordenkircher too, was there not, as a result of the prosecutor's action?

Mr. James K. Smith: Your Honor, I think that we have to face the fact that people who plead guilty whether or not there are plea bargains commonly received lesser sentences on crimes.

However, those people do so freely and knowledgably, they pay -- if they refuse to enter that plea of guilty, they will pay no penalty for doing so because when they are sentenced, they are still eligible for any sentence within the statutory range.

Of course, in New Jersey a defendant who refuses to enter this non vult plea must receive the maximum, so his constitutional right is being directly --

Justice William H. Rehnquist: But then in Bordenkircher, the man was originally charge with something that wasn't his greatest and it was finally charge with after he refused the plea bargain.

Mr. James K. Smith: Well, I think that the opinion in that case knows that rather clearly that the prosecutor could've begun from the very first day on habitual offender indictment.

The man fiddle the criteria for that indictment, it was just done in the sort of the reverse of the normal plea bargaining process which is that the prosecutor indicts on a crime and then deals down.

Justice William H. Rehnquist: Well, but in New Jersey that your client could from the very first day have elected his jury trial and refuse to plead non vult and he did.

Mr. James K. Smith: And that's exactly what he did and for doing that, he paid this penalty.

He was not eligible for this lesser term in the state prison even though the judge has sentenced him might have felt that this sort of sentence was completely warranted.

In any event as I've said, I've mentioned the lost of employment in Garrity versus New Jersey in the filing of a search --

Justice Byron R. White: If a man charge with a first degree murder and if he sticks to a not guilty plea, you'll be trialed by jury.

Mr. James K. Smith: That' true.

Justice Byron R. White: And his lawyer and the prosecutor talking and becomes clear the prosecutor would end up recommending 20 years if he plead guilty.

Mr. James K. Smith: That's always a possibility.

Justice Byron R. White: And why isn't that just the same and in senate to disregard his jury right, where the same burden on it?

Mr. James K. Smith: Well, it certainly is an incentive to disregard his jury right.

Justice Byron R. White: But it's the same -- it seems the same -- It's the same burden in the sense that he's got and he has to make up his mind about which the alternative, which decorum to jump on.

Mr. James K. Smith: Well, I think a distinction has to be made between offering the defendant incentives to give up his constitutional rights and penalizing him if he doesn't give up those rights.

A defendant who --

Justice Byron R. White: Well, the prosecutor says I'll never recommend 20 years if you obviously under this law and I'll never recommend 20 years if you'd go to trial, that's your penalty?

Mr. James K. Smith: Of course, he must receive the life sentence if he is convicted upon the jury trial.

Now, I've discussed these sanctions, the lost of employment and the filing of certificate little poll tax and these are relatively minor sanctions that I think it's clear that they are the type of sanctions which deter exercise of a constitutional right.

I think that this New Jersey murder statute has the same effect.

A defendant in a first degree murder case is not going to want to exercise his right to a jury trial and face the possibility of a mandatory life sentence when he can plead non vult, admit the crime, and still be eligible for a few years in the state prison or for that matter even a term of probation.

Now, the state of course claims that there is a need for this kind of sentencing provision and that it promotes plea bargaining.

Now, our office is not --

Justice Byron R. White: And also structures the limits and structures the bargain.

Mr. James K. Smith: Well, of course that could be done through any number of other --

Justice Byron R. White: Well, i grant you but it does that anyway.

Mr. James K. Smith: Yes, it does.

Our office is not in anyway opposed to plea bargaining nor do we wish to restrict the practice in any manner.

It is simply --

Chief Justice Warren E. Burger: You wouldn't want to do a way with it, would you?

Mr. James K. Smith: Certainly not.

It is simply our position that plea bargaining is no way involved in this case.

This statute is not analogist to plea bargaining and it's certainly not necessary to plea bargaining.

In fact, this appears to be a very unique statute.

I have not been able to find any other criminal statute in the United States which contains separate ranges of penalties for a defendant who is convicted upon a jury trial and a defendant who is convicted upon a guilty plea.

In fact, this is the only New Jersey statute which has separate penalty ranges.

Justice William H. Rehnquist: But do prosecutors make that kind of offer everyday of the week?

Mr. James K. Smith: Certainly, to lesser included the things and that's --

Justice William H. Rehnquist: What's the difference if a prosecutor makes it or if a legislature makes it?

Mr. James K. Smith: Well, here we have as I said before.

We have two penalties for the same offense, a person who plea bargain say starts out with an armed robbery case and pleads to robbery by fear is certainly can't be compared to the person who goes to trial and is convicted of armed robbery.

I'm just comparing Mr. Corbitt's situation having been convicted of felony murder after jury trial with the position of people who plead non vult to the crime, admit the crime, and are still eligible for much lesser sentence.

Now, as I've said --

Justice William H. Rehnquist: They give up the right to be found not guilty by a jury?

Mr. James K. Smith: That's true.

And Mr. Corbitt insisted upon his rights and for that he received a mandatory penalty.

Justice Thurgood Marshall: Mr. Smith, what happens in New Jersey if two-thirds of the way through the trial before a jury, he decides to plead guilty?

Mr. James K. Smith: He decides to plead non vult in the middle of a trial, he still eligible for either sentence of life imprisonment or a sentence of up to 30 years in the state prison.

Justice Thurgood Marshall: Does that help for each align?

Mr. James K. Smith: I suppose, it would help my argument because I can't see any distinction between a person who admits his skill halfway through a trial and a person who in fact insist upon his rights all the way and is convicted after the trial.

Justice Thurgood Marshall: In the party alignment that once it goes into it he is irrevocably stocked with it.

Mr. James K. Smith: Well, that doesn't have to --

Justice Thurgood Marshall: So, you don't need that point?

Mr. James K. Smith: To be the practice in New Jersey.

In any event, well as I've said, this is the only New Jersey statute which has separate penalty ranges.

Yet, we know that plea bargaining works in New Jersey in all other statutes.

It works in robbery cases, in kidnapping cases.

It works for any other crime that one could mention.

There is no reason to believe that this sort of unique sentencing scheme therefore is necessary in anyway to conduct plea bargaining rather it is unnecessary as this Court said in United States versus Jackson, “It is unnecessary and therefore excessive.”

As I've indicated previously, the statute is not analogous to the process of plea bargaining.

First of all, as I've said before, it's not a voluntary process and secondly it does not contain the mutuality of advantage which is commonly found in plea bargaining.

The defendant's aim in a plea bargaining is always to reduce his maximum possible exposure on a crime and there's of course any number of ways that this can be done.

But a defendant who pleads non vult in New Jersey does not limit his maximum possible exposure for he's still eligible for the life sentence.

The only thing that defendant achieves by pleading non vult is that he insulates himself from the possibility of the mandatory life sentence which comes upon a jury conviction.

Therefore, we would submit that this murder statute is nothing more than a unilateral penalty imposed upon those persons who have exercised their rights.

I recognize that a defendant in a criminal proceeding is often times called upon to make difficult choices but the threshold question has always been thus compelling an election between two alternatives impair to any appreciable extent the underlying right involved.

And I think I've demonstrated that this New Jersey murder statute does in fact deter defendants from exercising their constitutional rights.

In a number of cases, this Court has had the opportunity to consider the concept of vindictiveness.

It is been held that a defendant may not be vindictively penalize for exercising a right and we submit that this is exactly what the New Jersey murder statute does.

It requires that the defendant who insists upon his rights must receive the maximum sentence.

This is no different than a judge that would announce that it's his policy to impose the maximum sentence on any defendant, who dares come before him in a jury trial and he is convicted.

Thus, as I've indicated in the final analysis, this statute unnecessarily deters the right to jury trial while penalizing those defendants who insist upon the rights.

If I may move on to my equal protection argument, as I've indicated before, there are two scales of punishment for first degree murder in New Jersey.

This classification is not based in anyway on the personal or penal status of the offender but rather solely upon whether he has exercised his right to a jury trial.

It does not matter whether the defendant is a young man or an old man or whether he has no prior conviction so as a habitual offender.

Rather the first decision that the sentencing judge must make in this sort of case is whether the defendant has exercise his right to a trial.

If the defendant has been convicted upon a non vult plea, then the judge of course has complete discretion to impose almost any sentence between probation and life imprisonment.

If the defendant has been convicted upon a jury verdict, then the judge has no discretion.

He must impose the maximum sentence even if he feels a lesser sentence is wanted.

Justice William H. Rehnquist: Will the New Jersey system be constitutionally acceptable in your view, if the statute didn't require that all not guilty pleas be trialed to a jury but simply require that if there was to be a waiver of a jury, it had to be by both sides?

You know, it's both the defendant and the prosecution would have to waive the jury.

Mr. James K. Smith: Well, if I understand Your Honor's question correctly.

I would think that there would still be a defect in that and that even if a defendant waive the jury that the -- he would still be eligible for a wide range of sentences upon a non vult plea while he would still have to receive the maximum penalty upon a conviction whether it'd be a judge conviction or a jury conviction.

I have no objection to the concept of extending leniency towards those persons who admit their guilt.

But this provides no justification whatsoever for imposing the maximum sentence on a defendant simply because he has exercised his rights to a jury trial.

It maybe that in certain cases, a judge as a matter of his own discretion will feel that a defendant who has admitted his guilt is more emendable to rehabilitation, but it does not logically follow that the defendant who has insisted upon his constitutional rights must be so incorrigible that only the maximum sentence would be appropriate.

In this case, we are simply asking that the defendant having insisted upon his right to a jury trial be eligible for the same range of penalties that he would've been admitted his guilt through a non vult plea.

Justice Potter Stewart: Now, if he pleads not -- if he pleads not guilty to a charge and indictment of first degree murder, he can be found not guilty.

He can be found guilty of some lesser included offense of homicide, could he?

Mr. James K. Smith: Well, if not in this particular case.

I've use the felony murder example in my brief because this was a felony murder case.

Justice Potter Stewart: This was an arson, it was not a theft.

Mr. James K. Smith: Right, it was -- if the jury was not charge here with either second degree murder or manslaughter.

If Mr. Corbitt was convicted, it would've had been for a felony murder.

If would've --

Justice Potter Stewart: Which is first degree murder in New Jersey, isn't it?

Mr. James K. Smith: Correct.

If we would've plead non vult, he also would've had to admit if a felony murder --

Justice Potter Stewart: Yes, but he wouldn't have been admitting a felony murder.

He wouldn't have been admitting murder.

Mr. James K. Smith: Well, he would've said Your Honor, I started the fire and I mean --

Justice Potter Stewart: Well, but isn't it -- am I not correct as a matter of technical New Jersey law, I just want to be sure I understand your law that when you plead non vult, it's not to a degree of homicide? It's just to murder, isn't that right?

Mr. James K. Smith: That's correct.

Justice Potter Stewart: General as murder.

Mr. James K. Smith: Although --

Justice Potter Stewart: Is that correct?

Mr. James K. Smith: That's correct.

Although, murder encompasses both first degree murder and second degree murder and --

Justice Potter Stewart: Yes, but is not guilty of, you're not pleading non vult to felony murder or the first degree murder?

Mr. James K. Smith: No, you're pleading guilty to non vult to murder and you're admitting a felony murder or first degree murder.

Justice Potter Stewart: But the jury found him guilty of felony murder.

Mr. James K. Smith: That's correct.

Justice Potter Stewart: Had he pleaded non vult and it would not have been to a felony murder, correct?

Mr. James K. Smith: No, it would've been to --

Justice Potter Stewart: Murder.

Mr. James K. Smith: A non-specified degree of murder but as I've indicated before, he obviously and setting for the factual basis for his plea, he would've had to admit having committed a felony murder.

Chief Justice Warren E. Burger: Would you think it's unconstitutional for a state to require as I think some do every -- in a defendant's murder case to go to trial?

Mr. James K. Smith: No, I don't think that would be anything unconstitutional about that.

I don't think it'd be a wise legislative policy but --

Chief Justice Warren E. Burger: Even if it's accompanied by certain mandatory penalties?

Mr. James K. Smith: Well --

Chief Justice Warren E. Burger: In other words, eliminating all possibility of plea negotiations.

Mr. James K. Smith: Like I said, as long as the same range of penalties is available, I don't see any problem with it.

I certainly think that that would be an unwise legislative policy but of course that's for the states to decide.

As I've said before, simply because Mr. Corbitt here has exercised his right to a jury trial, he was not eligible for a number of valuable sentencing alternatives which of course is a sentence up to 30 years in the state prison.

Therefore, the defendant would submit that he was denied his right to equal protection laws in violation of Fourteenth Amendment.

Mr. Chief Justice, if I many I'd like to reserve five minutes for rebuttal.

Justice Potter Stewart: Just one -- if you're relying on Jackson, one very clear differences that in Jackson, if a defendant pleaded either guilty of kidnapping with harm to the victim in her state or if he pleaded not guilty with the same offense and waive the jury trial.

He absolutely could not have been sentence to death.

Mr. James K. Smith: That's correct.

Justice Potter Stewart: Here, if he pleads non vult, he can be sentence to life imprisonment.

The same maximum sentence that a jury could impose.

Mr. James K. Smith: That's true, Your Honor.

I should not however that a maximum - a life sentence upon a jury conviction is not necessarily the same as a life sentence upon a non vult plea and that the life sentence upon a jury conviction of course is mandatory and must be to the state prison.

A life sentence upon a non vult plea is purely discretionary.

Justice Potter Stewart: I know, but if --

Mr. James K. Smith: It maybe --

Justice Potter Stewart: but the sentencing judge may imposed it and may send him to the state prison.

Mr. James K. Smith: That's true, but not --

Justice Potter Stewart: And that makes us different from the Jackson case where there was absolutely no power in the absence of a jury recommendation under the statute to impose the sentence that a jury could've recommended.

Mr. James K. Smith: That certainly a factual distinction, Your Honor.

I would submit however, that the real question that must be decided in the case like this is, “Does the statutory scheme serve to deter exercise of the constitutional right?”

And I think that this clearly deters defendants from exercising the right to a jury trial and therefore I would submit it's unconstitutional just as the Federal Kidnapping Act.

Justice Byron R. White: Mr. Smith, I gather that New Jersey still uses in the murder indictment to your common law form just willfully following mislead of malice support so on and so forth.

It says nothing whatever in the indictment itself that it's a felony.

Mr. James K. Smith: That is correct.

Justice Byron R. White: And that's why going back to your answer to my Brother Stewart, that's why you you'll say when he pleads.

He doesn't plead to felony murder.

He pleads to that common law indictment does he?

Mr. James K. Smith: That's correct.

All --

Justice Byron R. White: And then the fact that it was a felony murder simply comes out in his admission as to the conduct which constituted the offense.

Mr. James K. Smith: When he said support the factual basis for a plea where he would have to admit it.

Justice Potter Stewart: In this case, the jury found your client guilty of what, murder or felony murder?

Mr. James K. Smith: Well, that's interesting.

They found him guilty of murder.

Now, under New Jersey law, they are required to specify either first degree murder or second degree murder.

They did not do that.

They just said murder but of course this was a felony murder case.

There was no instruction given on second degree murder and the assumption of course always was made that he had to receive the mandatory life sentence.

Justice Potter Stewart: Or could you make assumptions in criminal in cases --

Mr. James K. Smith: Well --

Justice Potter Stewart: -- when the jury hasn't found him guilty or not?

Mr. James K. Smith: The situation there was that when, I first got this case after had been accepted by the New Jersey Supreme Court.

I attempted to raise that same argument but they had granted certification limited to the question of the constitutionality of this statute and they did not choose to hear me on that argument.

Justice Potter Stewart: So, by hypothesis in this case, he was found guilty of felony murder.

Mr. James K. Smith: That's correct.

Argument of John DeCicco

Chief Justice Warren E. Burger: Mr. DeCicco?

Mr. John DeCicco: Mr. Chief Justice and may it please the Court.

The issue presented by this case is whether the New Jersey statutory sentencing scheme for murder impermissible infringes upon a defendant's Fifth and Sixth Amendment rights to trial.

A subsidiary question is whether the statutory scheme at issue deprives an accused of equal protection of he laws.

It is our position that New Jersey's homicide statute deny in anyway burden those wishing to exercise their Fifth and Sixth Amendment rights to defend against murder charges before a jury nor do our statutes deprive those individuals of equal protection of the laws.

At the outset, we recognize and emphasize that if the sole objective and result of state legislation is to unnecessarily discourage the assertion of constitutional rights then the statutory scheme is patently unconstitutional.

However, this case involves nothing more than a statutory codification of plea bargaining in homicide cases and nothing else.

Even assuming any form of an inducement this Court has held that there is no chilling effect on the exercise of constitutional rights when three criteria have been met.

One, the statutory scheme serves a necessary and legitimate state interest and/or interest to a defendant which is present here.

Justice John Paul Stevens: Would you explain to me what that interest is?

Is it anything other than the interest in same interest you have in the plea bargaining of course and persuading the defendant not to stand on trial.

Mr. John DeCicco: The interest is to conserve scarce traditional and prosecutorial resources.

Secondly, the interest is to facilitate the correctional process with respect for the specific offender.

The interest runs both ways.

Justice John Paul Stevens: But those are always present when you persuade the defendant not to stand trial aren't they?

Mr. John DeCicco: That is correct and that correct --

Justice John Paul Stevens: So, then that is still true that the solo thing that this accomplish, tends to accomplish is to persuade to not stand trial and their buy products are there if it works out.

Mr. John DeCicco: Well, I wouldn't characterize it as a sole accomplishment.

It allows him to avoid the readers of life imprisonment.

It allows the defendant to realize his --

Justice John Paul Stevens: This statute allows him to avoid that?

Mr. John DeCicco: Yes, it does.

A non vult provision does.

Justice John Paul Stevens: He can't avoid that if he elects to exercise a constitutional right.

Mr. John DeCicco: Yes, he might and even avoided there.

Should he be acquitted, should he be convicted of a lesser degree of homicide.

Secondly, if the statutory goals are unobtainable through any other means then this Court has upheld statutory scheme such as the present and third and I think most important is that any inducement --

Justice John Paul Stevens: Excuse me again, Mr. DeCicco, you say the Court has upheld statutory schemes such as this?

Mr. John DeCicco: It has upheld statutory and or Tom law schemes whereby the goals are unobtainable through any other --

Justice John Paul Stevens: Has it ever upheld a statutory scheme in which the range of penalties for one who stands trial is more severe than the range of penalties for the one who pleads not guilty, who pleads guilty?

Mr. John DeCicco: Not an statutory scheme but in Bordenkircher --

Justice John Paul Stevens: No, it doesn't upheld statutory scheme?

Mr. John DeCicco: No.

Excuse me.

A Bordenkircher have held the prosecutorial and the plea negotiation system whereby the same result was obtained.

In striking the balance with relation to these three components of our equation, it is submitted that the New Jersey homicide statutes are beyond constitutional attack.

Indeed, appellant has failed to demonstrate any measurable incidents of defendants who have been needlessly chilled in their exercise of their Fifth and/or Sixth Amendment rights to trial.

Initially, and considering the extent of any chilling effect purportedly exerted on our homicide statutes reference to the United States versus Jackson is helpful.

There of course, a defendant who proceeded to jury trial would be subject to the death penalty while the defendant who chose any other means of either admitting his guilt or going to trial would be eligible for something less than the death penalty.

The New Jersey statute --

Justice Potter Stewart: Unless it's stronger than that, the death penalty could not be imposed on a such defendant.

Could not legally have been imposed a point.

Not everybody is eligible for something less.

Mr. John DeCicco: In Jackson, the maximum permitted was greater should he choose to go to trial then the maximum and under the New Jersey statutory scheme.

We think that is significant.

Justice John Paul Stevens: Why is that different from just changing the minimum and rather that if one case, you can get either 30 days of life imprisonment, the other case, you must get life imprisonment, you have the same maximum.

But are you suggesting there's no material difference between those choices because the maximum is the same.

Mr. John DeCicco: Generally speaking, I would say there is no material difference when you're speaking of disparity minimum sentences because that is an essence what all plea bargaining is about.

A defendant who chooses not to go to trial generally not always, generally will receive a lesser term of incarceration, i.e. a lesser minimum where is that if the defendant goes to trial may receive a greater term of incarceration.

Justice John Paul Stevens: That's true that plea bargaining in general but I don't see how that supports your notion that as long as the maximums or this maxima are the same and both alternatives.

There is no significant disparity.

I take it, that's your distinction of Jackson.

Mr. John DeCicco: That is one of our distinctions of Jackson, yes.

I would also note that we are dealing here with two different forms of conviction.

A conviction for non vult murder is to a general short form murder indictment in New Jersey some specified as to what in fact the defendant has plead guilty to other than the general category of murder whereas in having been trialed for first degree murder and having been convicted.

There's a specific designation which the legislature has determined should be penalize by a mandatory term of life imprisonment.

The distinction that we would like to first draw with Jackson is the fact that the death penalty is not present here whereas it was there and in fact it wasn't.

It was a greater maximum then under the New Jersey statutory scheme.

This Court has recognized even in Jackson and most recently in United States -- in Lockett versus Ohio that the death penalty is qualitatively different from mere imprisonment.

Justice John Paul Stevens: Mr. DeCicco, if you rely in the death penalty as the distinguishing feature, are you suggesting that it would be impermissible for a prosecutor who would indicted the defendant for obtaining an indictment for a capital offense to offer as an inducement to a plea of guilty that he would waive, he would withdraw the capital charge and substitute a lesser charge.

There was can and -- is it permissible plea bargaining to offer -- to dismiss a capital charge?

Mr. John DeCicco: Yes, I think it would be --

Justice John Paul Stevens: If it is permissible, then how does that distinguish the Jackson case?

Mr. John DeCicco: Because I think that in Jackson and in death generally, whenever we are talking about that, we are talking about the extent of the encouragement.

I believe this Court in Jackson use the freed needless encouragement and what we are trying to do here at this point of the argument is to demonstrate that doing a way with the potential for death does a way greatly if not in fact altogether with the extent of any unnecessary inducement, any chilling effect.

Secondly, and a I've already mention more significantly is the fact that a defendant in New Jersey is subject to the same maximum sentence life imprisonment regardless of whether he chooses to go to trial or to plead non vult.

The maximum in Jackson was greater since death was only available for trial rights were asserted.

The argument that has been raise that disparity minimum sentences induce the defendant to forego as Fifth Amendment rights does not take into account are plea bargaining practice in general and in this case specifically the fact that the defendant who does proceed to trial faces various alternatives between conviction of first degree murder, conviction of second degree murder, conviction of manslaughter or acquittal.

The defendant who pleads non vult also has various alternatives confronting him from the term of life imprisonment to anything less.

Considering --

Justice Potter Stewart: Did this particular defendant face any alternatives other than those of acquittal or conviction of felony murder?

Mr. John DeCicco: In this particular case, it was trialed to the jury on a felony murder theory.

Justice Potter Stewart: And no instructions --

Mr. John DeCicco: And there were no other instructions --

Justice Potter Stewart: Included.

Mr. John DeCicco: We can't -- I would not and all I'll assume any jury nullification in this case either he was going to be convicted or he is going to be acquitted.

Justice Potter Stewart: And convicted of an offense for which the --

Mr. John DeCicco: Felony murder.

Justice Potter Stewart: Punishment was mandatory life imprisonment.

Mr. John DeCicco: Yes, it was, that's correct.

However had he plead that would not be so.

There will be no designation as to the extent of the crime to which he had pleaded.

Justice Potter Stewart: Right.

Justice John Paul Stevens: Mr. DeCicco on your maximum distinction, supposing a statute provided that for reckless driving or speeding, the penalty could be anywhere from a $10.00 fine to a maximum of 30 days in jail.

But if the man likes to stand on trial, the maximum of 30 days in jail must be imposed.

Would you think that was a balance statute?

Mr. John DeCicco: I think the statute would be somewhat different from this.

Justice John Paul Stevens: In what respect, unless severe?

Mr. John DeCicco: If I understand your hypothetical -- may I -- we are talking about a driving offense for which if he pleads guilty he will receive no term of incarceration and if he pleads -- if he goes to trial at the municipal level he will --

Justice John Paul Stevens: Who sets a fine should be up to $5,000.00 --

Mr. John DeCicco: Um-huh.

Justice John Paul Stevens: From $10.00 to $5,000.00 with the judge's discretion but if he stands trial it's $5,000.00.

Mr. John DeCicco: We have the same maximum.

We --

Chief Justice Warren E. Burger: Same case as this.

Mr. John DeCicco: I think it would be an essence the same case as this.

Justice John Paul Stevens: And you said that's perfectly okay?

Mr. John DeCicco: Yes.

Justice John Paul Stevens: Now, it would be different though if the maximum was 30 days in jail instead of $5,000.00?

Mr. John DeCicco: Yes, that's Jackson.

If the maximum is greater then we can --

Justice John Paul Stevens: No, no, no, out of the maximum in both cases.

It's from $10.00 fine to a maximum of 30 days in jail and the $10.00 fine to a $5,000.00.

Mr. John DeCicco: Sorry, I misunderstood.

Justice John Paul Stevens: But and in the other case, the 30-day jail is automatically impose if he likes to stand on trial.

Mr. John DeCicco: That's correct.

Justice John Paul Stevens: And you'd say, how do you --

Mr. John DeCicco: It would be the same case.

I misunderstood Your Honor --

Justice John Paul Stevens: But the same case as this?

Mr. John DeCicco: Yes.

Justice John Paul Stevens: And that -- well, how do you say that statute would be all right?

Mr. John DeCicco: Yes.

There maybe come a time when statutory scheme is so disparate between the -- let us say in your example if it were a 10-day or a 10-year prison term depending upon the choice in that situation --

Justice John Paul Stevens: Even if --

Mr. John DeCicco: As in Jackson where you have the death penalty versus a mere term of years.

Perhaps, you would find a needless encouragement, the extent of the encouragement would be so great as to make this scheme constitutionally defective.

Justice John Paul Stevens: Even if the maxima is the same -- maxima are the same?

Mr. John DeCicco: It is possible even if the maxima is same, if there were in great disparity.

Justice John Paul Stevens: All right.

As soon as you admit that, how do you get out of the box in this case then, what is the

Mr. John DeCicco: We're dealing here between life imprisonment --

Justice John Paul Stevens: Is the maximum.

Mr. John DeCicco: But it's already been indicated the first parole eligibly --

Justice John Paul Stevens: And what would've been the minimum if he'd pleaded that he taken a plea?

Mr. John DeCicco: The minimum could be zero but he could --

Justice John Paul Stevens: That's quite a difference range.

Mr. John DeCicco: He could get up to 30 years.

Justice John Paul Stevens: Is that greater or a lesser than the difference I gave to you of $100.00 to 30 days in jail and --

Mr. John DeCicco: It's lesser because in practical terms, a murder defendant pleading guilty will not receive a non-custodial term or a fine merely.

Rather, generally we are bargaining then at that point in time for terms of years, i.e. 25-30 or whatever the case maybe.

Chief Justice Warren E. Burger: As in the earlier situations with some of the questions are -- if he stands trial, he also has the opportunity to get no penalty at all, doesn't he?

Mr. John DeCicco: That's correct.

He maybe acquit and again I --

Justice Potter Stewart: Was that with during the Jackson case, wouldn't it?

Mr. John DeCicco: Yes, that was during the Jackson case but again he didn't face the same, he facing greater maximum --

Justice Potter Stewart: But that much was during the Jackson case.

Mr. John DeCicco: And he will that habitual --

Justice Potter Stewart: He could've been acquitted because we were in that case was -- we are not dealing there was a convicted person, we're we?

There hadn't been a motion to dismiss and hadn't the district judge -- Judge Timbers, found the whole statute unconstitutional?

Mr. John DeCicco: Right.

Justice Potter Stewart: In the Jackson case.

That might right in my recollection.

Mr. John DeCicco: Yes.

Justice Potter Stewart: Or were we dealing with somebody who'd been convicted by a jury?

Mr. John DeCicco: In Jackson?

Justice Potter Stewart: Yes, in Jackson.

Mr. John DeCicco: Well, we're dealing with someone who was convicted by a jury.

Justice Potter Stewart: I thought there had been a motion to dismiss the indictment and that the --

Mr. John DeCicco: No, he had been convicted --

Justice Potter Stewart: Did the district judge had found the whole statute unconstitutional?

Mr. John DeCicco: He had been convicted by a jury and this Court officiated the death penalty in that case.

Justice Potter Stewart: The District Court had held the entire statute unconstitutional.

Mr. John DeCicco: And this Court that doesn't help me out --

Justice Potter Stewart: In Jackson.

Mr. John DeCicco: -- help me out, yes.

In any event, I think it should be made clear that this Court has held it on various occasions that the Constitution does not forbid every Government who imposed choice in a criminal process that may have the potential of discouraging the exercise of constitutional rights.

While to this point, we have emphasized that the quantum of the encouragement to plead non vult to avoid the potential of life imprisonment is miniscule.

We would also want to emphasize legitimate benefits which are attributable to the New Jersey statutory scheme.

This Court and again I reiterate the plea bargaining theme because I think it's so very significant in the disposition of this case.

This Court has previously recognized the vitality of the concept to plea bargaining as a necessary component to the criminal justice system.

In most plea bargaining situations, the defendant must determine whether to exercise his right to plead innocent and to receive a possibly or an all probability higher sense or whether to forgo his right to contest his guilt and to receive an all probability a lesser sense.

Thus, plea bargaining has always had as an incidental effect, the discouragement of a defendant's assertion of his trial rights.

This Court has held that to this imposition of this difficult choice are inevitable attribute of the plea bargaining system and in this regard our statutory system does not in anyway deviate from plea bargaining in general.

The benefits of the non vult statutory scheme in New Jersey are several.

It benefits the defendant involve by permitting him to avoid the expense and hardship of a trial.

It assures the prompt commencement of the correctional process.

Statutory plea bargaining enforce the defendant the possibility of ameliorating the rigors of life imprisonment which is perhaps the most important benefit attributable to the present scheme.

Justice William J. Brennan: And instantly, I gather if he got life after a plea, his eligibility for parole is no different than if he got his mandatory life sentence after that jury.

Mr. John DeCicco: And there is absolutely no distinction between the two.

And it must also we emphasize the plea bargaining is predicated upon the concept of those who acknowledge their guilt are in a better position and are better process for rehabilitation and should be given consideration on that account.

From the states' viewpoint, our statutory scheme for murder conserves scarce traditional and prosecutorial resources.

It also must be recognize that the states interest are serve by our scheme and that the legislature has determine that a conviction for this specific crime of first degree murder should carry a mandatory term of life imprisonment.

In essence, the statutory scheme is a bilateral scheme rather than a unilateral scheme as has been advance here today.

Justice Thurgood Marshall: Why aren't they both convictions, the judges convictions and the charged the both convictions?

Mr. John DeCicco: Yes, they are.

But two different offenses --

Justice Thurgood Marshall: But I thought you said that they were different.

Mr. John DeCicco: They are.

Justice Thurgood Marshall: Then one is a conviction and one is not, you're not saying that are you?

Mr. John DeCicco: One is a conviction to murder in general -- in general category of murder.

In New Jersey, our murder indictments reflect --

Justice Thurgood Marshall: But when the other what is won before the judge the non vult?

Mr. John DeCicco: That is a conviction of first degree murder specifically.

Justice Potter Stewart: No, no.

Not the one before the judge --

Justice Thurgood Marshall: No, sir --

Justice Potter Stewart: As a result of non vult --

Mr. John DeCicco: Oh, I'm sorry, I thought you said before a jury, it's exactly it's --

Justice Thurgood Marshall: But don't you have to explain to the judge what you did?

Mr. John DeCicco: Yes, the factual --

Justice Thurgood Marshall: And don't -- doesn't the judge determine whether that's manslaughter, first degree or its like --

Mr. John DeCicco: No.

The judge does --

Justice Thurgood Marshall: Well, how does the judge determine how much time you'll get?

Mr. John DeCicco: The judge makes his --

Justice Thurgood Marshall: Be careful what you're saying now.

The judge gets whatever time he wants.

Now, do you have to determine whether in his own mind doesn't he?

Mr. John DeCicco: The judge would have --

Justice Thurgood Marshall: Would he give the same time for first degree murder as manslaughter?

Mr. John DeCicco: The judge of course would determine the facts of the case these are the gravity and the heinous nature of the crime in determining whether to impose 25 or 30 or 20 --

Justice Thurgood Marshall: And that's what I thought.

Mr. John DeCicco: Years, yes.

But again we must also take into consider --

Justice Thurgood Marshall: And would you do that the same if the man just came in and says I want to trial before a judge without a jury. Will the judge do the same thing?

Mr. John DeCicco: He can't have a trial before a --

Justice Thurgood Marshall: Well, in any of the other 50 states?

Mr. John DeCicco: Without a jury.

Justice Thurgood Marshall: And the other 50 states where he could.

Wouldn't the judge determine it?

Mr. John DeCicco: In the other states, yes.

I would like to emphasize something else Mr. Justice Marshall.

Justice Thurgood Marshall: You seen part of it did worse me as the distinction that you see that I don't see.

Mr. John DeCicco: What this might help -- what I do want to emphasize, and perhaps, I haven't up to this point is the fact that there is no right upon the part of the defendant to have his non vult plea accepted by the judge at all.

Justice Thurgood Marshall: Um-huh.

Mr. John DeCicco: The judge does it, a discretionary act with the judge.

If he looks at the facts of this case as you've indicated for actual basis must be laid in New Jersey otherwise a plea cannot be accepted which is different from the Alfred type situation.

In New Jersey, the factual predicate must be laid.

When the judge sees those facts, he might determine not to accept the plea.

Base upon, let us say the prosecutor recommends 25 years and the judge will think to himself that that just is a little too easy visibly the facts of the case.

Also significant is the fact that in New Jersey under our present statutory scheme, the benefits of it are unavailable, are unobtainable by other means.

Elimination of the mandatory life sentence would nullify the legislative determination that they did.

That is the appropriate penalty for first degree murder.

Abolition of the non vult plea would have a detrimental effect on defendants who wish to acknowledge their guilt and to properly avail themselves of less harsh treatment by immediately commencing the rehabilitation process.

Thus, in our view, the New Jersey statutory scheme does not place an excessive burden or in fact any burden upon a defendants right to plead not guilty.

Moreover, the scheme is justifying necessary and legitimate state needs.

We recognize that no man should receive an additional penalty because he defends against the charge but it does not follow that one who acknowledges his guilt should not be given consideration on that account.

I will now briefly turn to the equal protection argument raised in this case.

It is our view that the equal protection argument does -- the issue as to equal protection does not exist in this case.

If there is an unconstitutional compulsion placed upon a defendant's Fifth and/or Sixth Amendment rights, this case would of course be dispose off on Jackson grounds.

If there is no constitutional impediment then it follows that the equal protection argument would equally be meritless.

We submit that the category in New Jersey at the time where the decision whether to proceed to trial or to plead non vult, the category is the same.

You have one category that is indited murderous and they all have the identical choices.

And so, therefore, there is no equal protection argument at that point in time.

If the appellant argues that the classes do not come into existence subsequent to conviction, which I believe appellant does argue, that also must fall because at that point.

We have two classes, we do not have one but two classes and they are those people who have been convicted of murder and those people who have been convicted of first degree murder for which the legislature determine a life imprisonment penalty and so that under either alternative or theory, the equal protection argument would be non-existing.

Lastly, even assuming a cognizable class for purposes of the equal protection argument, in our view the argument must fall.

We have it in New Jersey a legitimate and indeed compelling state interest in fostering the statutory scheme which we have mentioned here today.

These are to repeat, amelioration of the rigors of life imprisonment, recognition of the rehabilitative prospects by one going to admit his guilt, the ability to avoid trial, facilitation of plea negotiations, the conservation of scarce judicial and prosecutorial resources, and prompt the position of a punishment of offenders.

Suffice it to say, the benefits included by defendants in the state demonstrate that the equal protection argument is meritless.

Thank you for your attention to our argument.

Rebuttal of James K. Smith

Chief Justice Warren E. Burger: Thank you, Mr. DeCicco.

You have about three minutes left, do you have anything further?

Mr. James K. Smith: Your Honor, I'd like to make just one quick point that being that a defendant in New Jersey of course cannot plead to the offense of first degree murder.

Pleads are not accepted to either first degree or second degree murder.

Now, the state before the New Jersey Supreme Court made the same argument that basically there was a difference between any conviction for first degree murder and the conviction for murder.

And in New Jersey Supreme Court held then I'm reading from page 33 of the appendix that we do not accept their position as a fully satisfied rebases for meeting the defendant's argument which it seems to us can and should be dealt with more directly.

I think therefore that the opinion of the New Jersey Supreme Court does not revolve on this matter of statutory construction but it was decided upon the constitutional principles upon the assumption that the person who pleads non vult for murder and admits a felony murder is in fact in the same position as the person who is convicted of a felony murder.

Thank you very much.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

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