Cases by Issue - Miscellaneous

Rowland, Former Director, California Department Of Corrections v. California Men's Colony, Unit II Men's Advisory Council - Oral Argument

Fri, 09 Jan 2009 14:49:28 +0000

Case:

Rowland, Former Director, California Department Of Corrections v. California Men's Colony, Unit II Men's Advisory Council

Media File:

91-1188_19921006-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of James Ching

Chief Justice Rehnquist: We'll hear argument now in number 91-1188, James Rowland v. The California Men's Colony.

Mr. Ching.

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

Section 1915(a) permits persons to proceed in forma pauperis upon the filing of a proper affidavit of indigency.

The issue today is whether associations or corporations may also apply and whether, therefore, they are persons under the language of the statute.

The relevant events concerning this statute are few and can be briefly described.

Prior to 1959, the in forma pauperis statute was limited to citizens, and prior to 1959, the case law is perfectly unequivocal.

Those citizens were only natural persons.

They were not corporations, and a fortiori, they were also not associations.

Unknown Speaker: Well, Mr. Ching, weren't corporations considered to be citizens at least for purposes of Federal court jurisdiction?

Mr. Ching: The... corporations were considered citizens for the purpose of diversity jurisdiction.

They are not entitled to powers of immunity under the Constitution.

Consequently, there was some discretion in... according them various privileges such as the in forma pauperis.

The Second Circuit in two cases held that they were not to be afforded the benefits of the in forma pauperis statute.

Therefore, up to 1959, the application of the plaintiff in the court below would have been summarily rejected.

Unknown Speaker: Well, it would have been rejected in the Second Circuit.

Mr. Ching: It would have been rejected certainly in the Second Circuit with no--

Unknown Speaker: How do we know whether it would have been rejected in the Ninth Circuit, for example?

Mr. Ching: --Well, I would guess that the period of time between 1938 and 1959, in which no single case arose, indicated that there was some unanimity on the point.

I have no other thought about the nature and number of cases involved.

But in 1959, Congress, with the explicit, singular, and unequivocal intention of according the benefit of in forma pauperis to resident aliens and resident aliens alone substituted for the word, citizen, in the in forma pauperis statute the term, person.

Then for a period from '59 to '69, utterly no litigation at all on the point.

What this would indicate to me, in sum, is number one, the statute, whether referring to citizen or to person, never referred to artificial persons.

It only referred to natural persons.

Secondly, in the amendment in 1959, the language is we would extend the same privilege as is now afforded citizens to resident aliens.

Unknown Speaker: That's the language of what?

Mr. Ching: That is the language of the report, the Senate report, in the statutory history.

Unknown Speaker: What about the House report?

Did that say the same thing?

Mr. Ching: I do not... I only had the Congressional News report.

I do not know.

However, drawn from this examination of the statutory reports, there are two principles: first, that the intent of the legislation was only to include another category of natural persons, residential aliens; and principle number two, that Congress has been extremely parsimonious in extending the benefit of IFP to any other groups.

Well, this brief summary, of course, compromises the core of the--

Unknown Speaker: What did you call the principle that Congress only intended to--

Mr. Ching: --To parsimoniously extend the benefits of in forma pauperis.

Unknown Speaker: --That's a principle or that's just an observation I suppose.

Mr. Ching: I guess it's an observation.

It's a generalization which I think is fairly drawn from the statutory history.

Unknown Speaker: Well, has the Congress rejected from time to time suggestions to expand the in forma pauperis statute?

Mr. Ching: I do not know, Your Honor.

Unknown Speaker: Well, then I don't think you have any evidence for your supposition.

Mr. Ching: All right.

Well, in any case, the single instance in which they have expanded it with an enactment has been this 1959 amendment.

The core of the minority position is... takes note of the fact that in 1948 the section 1 of title 1 was amended to create persons... a definition of persons that included corporations and associations.

This would seem in light of the lack of any reference in section 1 to 1915 to be an irrelevant definition.

It is even more irrelevant in light of the qualification that is explicit in section 1, that unless the context is consistent with the definition of persons, it is not to be used.

Unknown Speaker: Well, it says unless the context otherwise requires, doesn't it, in--

Mr. Ching: Unless the context otherwise--

Unknown Speaker: --Or unless the context indicates otherwise.

Mr. Ching: --Indicates.

Of course, the meaning of context is not spelled out, but surely context must at least include the events surrounding the amendment in 1959, as well as the cases from the--

Unknown Speaker: So, you say context means more than the words of the statute itself.

Context means the environment for the milieu in which the statute was adopted?

Mr. Ching: --Certainly.

Yes, that is my point, Your Honor.

Unknown Speaker: And the legislative history.

Mr. Ching: Certainly, Your Honor.

Unknown Speaker: Section 1 then requires us to look at legislative history in every case to be sure it doesn't otherwise require.

Mr. Ching: I would think so, Your Honor.

Unknown Speaker: A statutory directive.

Mr. Ching: And since, in fact, we are attempting to implement the intent of Congress, then certainly we must understand what they mean if they use the word, person.

Unknown Speaker: What does context not include?

Mr. Ching: I would not... I would think that the use of such a general term would not exclude much.

Unknown Speaker: Anything?

Anything at all?

I mean, I don't know why they just didn't say then unless there is some reason to think otherwise--

Mr. Ching: And certainly--

Unknown Speaker: --the word, person, means, you know, but they didn't say that.

They said unless the context indicates otherwise.

Mr. Ching: --And there is nothing in section 1 to indicate what context means.

Unknown Speaker: Well, I think the word, context, comes from the word, text.

Context.

It means the surrounding text.

Mr. Ching: Yes, and, con, would indicate with or adjoining to, and so--

Unknown Speaker: There's textual, there's contextual, there's extratextual.

I think context means context.

The passage in which the word is used, the surrounding statutory language.

Don't you think that's what it means?

Mr. Ching: --If that were so, that would indicate a restriction to only the statute which purported to define person in a separate and distinct manner.

The cases, the FTC case and so on, dealing with the use of person doesn't seem to indicate such a narrow restriction.

Unknown Speaker: Well, really the first definition in the dictionary is that it is a connection of words that... excuse me.

The parts of a discourse that surround a word or passage and can throw light on its meaning.

So, under that definition... it's the first definition... it would indicate that we look just to the statute.

Mr. Ching: Well, anything that would indicate its meaning.

Yes, I would think that you would look to the text first.

There's no doubt about that.

Unknown Speaker: But now, I said gist of the statute.

That's a plausible interpretation of context, is it not?

Mr. Ching: Yes, it certainly is.

Unknown Speaker: If we don't go beyond the text, do you lose?

Mr. Ching: No.

I do not believe that I lose if we are permitted to examine statutory materials related to--

Unknown Speaker: What's your best textual argument?

Mr. Ching: --My best textual argument is that which I led with; that is, there has been a consistent restriction to natural persons both in case law and in the bill.

Unknown Speaker: Well, aren't you getting beyond the text of the statute when you say that?

I mean, that's your parsimony argument, and you have to go to... I guess you have to look at a lot of congressional history beyond this statute.

If you just look at the text, as Justice Scalia suggested, is there anything in the text that supports you?

Mr. Ching: Well, the... by inference, the... I'm hard put to give you an answer on that.

Unknown Speaker: What about the requirement for an affidavit?

Mr. Ching: The requirement for an affidavit is, of course, tied up with the complications of a corporate identity.

Unknown Speaker: It's not normal to talk about a corporation making an affidavit, is it?

It says that you can't get IFP status unless you make... unless the person makes an affidavit that he is unable to pay such costs.

Mr. Ching: Well--

Unknown Speaker: Such affidavit shall state the nature of the action, blah, blah, blah, and affiant's belief that he's entitled to redress it.

I mean, I guess you could say that the corporation can make an affidavit through one of it's officers, but--

Mr. Ching: --It could--

Unknown Speaker: --it's sort of a stilted use there, isn't it?

Mr. Ching: --Well, it could not make it directly as implied by the plain meaning of the statute, and I would think that tied up with that is the inability to determine what the corporate assets are for the purposes of the litigation at hand.

So--

Unknown Speaker: I suppose without the definition of person, the general definition of person, if that weren't in the statutes, I suppose you would win.

Mr. Ching: --Yes, unequivocally.

Unknown Speaker: Because you don't usually call a... in common parlance, you wouldn't call a corporation a person.

Mr. Ching: No, I would not think so.

Unknown Speaker: I suppose the word, poverty, in the statute also helps you.

You don't usually think of a corporation as making an affidavit of poverty--

Mr. Ching: Well, I--

Unknown Speaker: --financial... or do you?

Mr. Ching: --I would not.

I hate this, but I really do believe that a bankrupt corporation could make an affidavit of poverty through its trustee.

Unknown Speaker: We usually refer to impoverished corporations?

We refer to corporations with financial hardship, corporations that are insolvent.

Mr. Ching: Yes.

I mean, there are many other technical terms that would more accurately describe a corporation without funds to pursue litigation.

Unknown Speaker: So, you don't pin much on the term, poverty, in the statute.

Mr. Ching: I do not think it is as significant as the other point Justice Scalia made.

Unknown Speaker: I suppose part of the context is also the fact that this statute is providing for treatment as an indigent and providing public funds to be used for purposes that otherwise people are required to pay for.

That's the part of the context, right?

That... that's how the word is used in that context.

Mr. Ching: Yes.

Yes, at least that range and intent of the legislature was--

Unknown Speaker: And public charity is not usually accorded to corporations.

Mr. Ching: --The corporations and associations are not of the first concern in terms of public welfare.

Unknown Speaker: Do you think that a bankrupt corporation that is bankrupt because it can't possibly pay its debt, its assets are much less than its liabilities... do you think that would automatically mean that it could be... it could file an affidavit that is... that it is entitled to be treated as a pauper?

Mr. Ching: There is no reason to think that the bankruptcy... any of the prevailing tests for determining it bankrupt would automatically be imported into the in forma pauperis statute.

Unknown Speaker: Well, a corporation might have... could be taking... could be put in involuntary bankruptcy or take voluntary bankruptcy even though it has an income of maybe 100,000 dollars a year.

Mr. Ching: Certainly, and the practical--

Unknown Speaker: And yet, I don't... I doubt if it would be granted in forma pauperis status, would you?

Mr. Ching: --I hesitate.

I hesitate to answer for the Ninth Circuit.

However, in all seriousness, I do believe income flow is one of the key provisions for determining in forma pauperis status.

Unknown Speaker: Well, there's a difference also.

When an individual says that that person is unable to pay such costs, you're talking about a person perhaps supporting themselves, getting food on the table, and that sort of thing.

When a corporation makes an affidavit that it's unable to pay the costs, what factors does it take into consideration?

Mr. Ching: It is simply stating that it is unable to engage in the business for which it was created, and therefore, it would seem to me a lesser claim than that of bread on the table for an individual.

And surely, the in forma pauperis statute was more directed to the individual in dire straits than a corporation in dire straits.

Unknown Speaker: Well, now, Mr. Ching, in this instance, if we have an association of prisoners who by... I guess you concede they individually didn't have any money.

Mr. Ching: I... the... one of the major problems with the case is the lack of development of facts upon discovery in this instance.

We do know of instances in which inmates have considerable money.

Unknown Speaker: Well--

Mr. Ching: So, I would not concede that as a theoretical--

Unknown Speaker: --All right.

Let me ask you this.

Could the action have been brought as a class action with an affidavit of indigency by the--

Mr. Ching: --Individual plaintiffs.

Unknown Speaker: --individual plaintiffs?

Mr. Ching: I would think so, Your Honor.

As a matter of fact, the complaint itself speaks of certification as a... of a class action.

I do not--

Unknown Speaker: So, it wouldn't have been impossible for this group to have filed on an indigent basis, in effect, through the mechanism of a class action.

Mr. Ching: --Well, certainly, Your Honor, I think that they could have pursued a class action.

I think that's what they should have done.

Unknown Speaker: But, Counsel, isn't that... isn't there a danger there that just because the named plaintiff is indigent, could he bring a class action in forma pauperis if he has got a bunch of Rockefellers in his class?

Mr. Ching: Well, Your Honor, the... I would think the IFP status would be granted for him, for the individual involved.

Unknown Speaker: For the... but then he sues on behalf of the whole class.

Mr. Ching: Yes.

Unknown Speaker: Whereas if you made him sue in the association, as he does here, you'd be... you'd lump all the wealth of the entire group together and they'd have to be without funds as an entity.

Mr. Ching: Well, that's one of the tests that has been... that have been proposed, that is, lumping or--

Unknown Speaker: What I'm suggesting is that I think that you will have more in forma pauperis actions allowed if you allow class actions with just an indigent named plaintiff than you would if you looked at the assets of the entire class, which is what we would do in this case.

Mr. Ching: --Well, I suppose that would be true, Your Honor.

I mean, part of our concern is the administration of the courts and the volume of cases that arise.

In the instance where there is a certified class action, we at least have the confidence to know that there is an interest that is common to all the parties involved, and in addition, it greatly simplifies our need to discover individual statuses and individual capacities.

Unknown Speaker: Can I bring a class action on behalf of all purchasers of AT&T stock, and just because I happen to be bankrupt, I can bring that class action on behalf of all AT&T stockholders in forma pauperis?

Is that really the law?

Mr. Ching: No, no.

I had suggested--

Unknown Speaker: I thought that's what you said, that so long as the--

Mr. Ching: --I had suggested that the individual would proceed and would, therefore, move for certification as a class action.

At that point, if the class is going to be maintained, I believe some inquiry as to the individual capacities--

Unknown Speaker: --I see.

I see.

Mr. Ching: --of the members of the classes--

Unknown Speaker: I see.

Mr. Ching: --would then proceed.

There would be a subsequent xxx.

Unknown Speaker: Right.

That makes sense.

Mr. Ching: The issue of statutory interpretation--

Unknown Speaker: May I ask you another question?

Mr. Ching: --Yes.

Unknown Speaker: You were... suggested that if there hadn't been this history, the word, person, would normally be read just to include individuals.

But I... just glancing at the rules, Rule 19 talks about joinder of persons needed for adjudication and so forth.

The whole language is all about persons.

You don't think that excludes paupered persons.

Mr. Ching: Well, in that regard, I'm also looking at the limitation upon the definition of citizen which precede it in the very same statute and which has been... which had been accepted for a considerable period of time.

In light of that and the use... and the amendment, the explicit amendment, only to include resident aliens, I would feel that a common definition of person would be appropriate.

If there are no further questions, I would reserve the remainder of my time for rebuttal.

Unknown Speaker: Thank you, Mr. Ching.

Mr. Weisselberg, we'll hear from you.

Argument of Charles D. Weisselberg

Mr. Weisselberg: Thank you, Your Honor.

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

There are three main reasons why the Men's Advisory Council may sue in forma pauperis.

First, under the plain and unambiguous statutory language, an association may proceed in forma pauperis.

Second, if this Court does decide to look to the legislative history, nothing in the legislative history is contrary to the plain language of the statutes.

And third, the statutory context, meaning the overall text, structure, and purpose of the in forma pauperis statute, does not require a restricted definition of the word, person.

Turning first to the statutory scheme, 1 U.S.C., section 1--

Unknown Speaker: How do one and three differ?

Mr. Weisselberg: --I'm sorry, Your Honor.

Unknown Speaker: How are one and three different of these reasons?

Mr. Weisselberg: Well, one... Your Honor--

Unknown Speaker: The plain language is the plain language.

Mr. Weisselberg: --Yes, Your Honor, but I think 1 U.S.C., section 1 does have the phrase which counsels the court to look to the context, and what I mean is that--

Unknown Speaker: Well, that's part of the plain language, isn't it?

Mr. Weisselberg: --Yes, Your Honor.

I would say--

Unknown Speaker: All right.

Go ahead.

Mr. Weisselberg: --one and three are in that way related.

But 1 U.S.C., section 1 defines person to include associations.

Section 1 was on the books when section 1915(a) was amended to include persons.

Section 1 is Congress' own dictionary.

It gives a mandatory definition of the word, person, because it is the definition that Congress itself has written.

In Wilson v. Omaha Indian Tribe, this Court construed the phrase, white person.

The Court held that Congress was aware of its own dictionary, and so when Congress reenacted the law using the phrase, white person.

Congress was fully aware that the phrase would be construed to cover artificial entities, as well as individuals.

Now, it makes sense--

Unknown Speaker: Because it was the same Congress, after all, that enacted that definitional section.

Right?

Mr. Weisselberg: --Yes, Your Honor.

Unknown Speaker: Was it really?

Mr. Weisselberg: Well--

Unknown Speaker: How many years elapsed between the people that voted for that definitional section and the people that voted for 1915, as amended?

Mr. Weisselberg: --Well, Your Honor, the... section 1 was amended in I believe 1948.

Section 1915 was amended in 1959.

But I would point out that 1 year before in 1958, this Court decided the case of United States v. A&P Trucking, and in that case, this Court was interpreting a criminal statute that used the phrase, whoever.

Whoever, is defined, along with the word, person, in 1 U.S.C., section 1.

This Court construed the phrase, whoever, to include partnerships because partnerships were included in the section 1 definition.

So, just one year before section 1915 was amended, this Court decided a case applying Section 1 to construe a Federal statute.

And it makes sense for Congress to define standard terms in section 1.

That saves Congress from redefining those terms every time a new bill is passed.

But Congress can only rely upon the definitions in section 1 if this Court is willing to make those definitions mandatory.

The petitioners' claim here is that Congress was silent regarding whether an association may proceed in forma pauperis, but I would suggest the Congress spoke loud and clear in the statute.

In amending section 1915(a), Congress deliberately used the word, person, and Congress chose that word knowing that the word, person, has a specific standard statutory meaning.

The petitioners want that phrase, person, in section 1915 to be read as natural persons, but if Congress had wanted only natural persons to proceed in forma pauperis, it would have said so in the statute.

The statute would have said that natural persons can proceed in forma pauperis or that individuals can proceed in forma pauperis or that citizens and aliens can proceed in forma pauperis, or Congress would have taken the time to craft a specific definition of the word, person, just as Congress has done in a variety of other statutory schemes.

But Congress didn't do so.

It used the word, person, which has a standard statutory definition.

Now, the petitioners rely quite a lot on the legislative history to the amendment to section 1915(a).

In response to an earlier question, I'd point out that the Senate report, which is republished in the U.S. Code and Congressional News, I think also reprints the House report.

It contains it in great detail so that the legislative reports from the two chambers are reproduced there.

And those reports do not say that person means only natural persons.

There's a paragraph that's two sentences long that's entitled Purpose, and all that it says is that the purpose of the amendment is to change the word, citizen, to the word, persons.

Unknown Speaker: Well, Mr. Weisselberg, I suppose that under the old original statute that dealt with citizens back in 1892, that that didn't include associations, did it?

Mr. Weisselberg: Well, there was certainly case law that allowed artificial entities of... namely, corporations to--

Unknown Speaker: Maybe a corporation, but I didn't... didn't the old dictionary law in force back in 1892 make clear that it didn't apply to associations?

Mr. Weisselberg: --I don't believe that the version that was in effect at that time included the word, association.

Unknown Speaker: So, we take it on the assumption that citizen then at least didn't include an association, such as you're representing.

So, when Congress changed citizen to include aliens, presumably it didn't enlarge it.

Mr. Weisselberg: Well, it... several responses to that, Your Honor.

First, again, when Congress changed the statute and chose the word, person, which was then defined to include a category of people other than merely corporations and aliens, it specifically includes associations.

I also--

Unknown Speaker: Well, yes, but it also tells us to look at the context.

Mr. Weisselberg: --Yes, Your Honor.

Unknown Speaker: And if the context tells us that it didn't include associations, I guess that--

Mr. Weisselberg: Well, Your Honor, I suppose I'd suggest that the context here does not exclude associations and does not counsel otherwise.

Perhaps I ought to address that.

I'd suggest that the Court consider context in the same way that this Court has construed the word, context, and looked at context in interpreting a number of statutory schemes.

There are a few cases that come to mind.

There is Department of Energy v. Ohio, and in that case, this Court interpreted the phrase, sanction, or the word, sanction, and the Court said that sometimes looking at a phrase in context gives a meaning that a phrase lacks in isolation.

And there the Court compared the use of the word, sanction, in several different subsections of the particular enactment.

So, I'd suggest that was an example of a court looking at the overall text of the statute to decide context.

And here I'd suggest that context, thus, refers to the overall text of the statute and not to a legislative history.

And when one looks at the overall text and purpose of the in forma pauperis statute, there is nothing that would suggest in my mind that the statute ought to be limited to natural persons only.

Unknown Speaker: --I don't know that that is the strongest argument I've ever heard, that if Congress were sitting down and thinking about this right now, and you said, well, do you want corporations, as well as natural persons, to be able to proceed IFP, you say yes, Congress would have said yes?

Mr. Weisselberg: Well, there are plenty of reasons why the Congress would have said yes and why the Congress deliberately used the word, person, in amending section 1915.

I think this Court has recognized in a number of cases that effective advocacy may be brought about through associations and through group litigation.

Unknown Speaker: Well, but we're talking about corporations.

Mr. Weisselberg: Well, Your Honor, there are lots of... corporations are, of course, frequent litigants in the Federal courts, and it may well have been Congress' intent to allow those corporations to continue to litigate even if they didn't have the funds to support the litigation.

Unknown Speaker: What... supposing the secretary of the corporation or the president of the corporation is going to make an in forma pauperis affidavit, what does he take into consideration that will... what sort of corporate picture does he have to have before he can say that the corporation is unable to pay the costs?

Mr. Weisselberg: Well, I suppose initially, at the very least, the officer would Get out the assets and the liabilities of the corporation and list the income of the corporation.

I suppose that at a minimum though I'd point out that, of course, the statute--

Unknown Speaker: But he has to affirm.

He not only has to set out statistics, but he has to swear that the corporation is unable to meet the costs.

Isn't that--

Mr. Weisselberg: --Yes, Your Honor.

Unknown Speaker: --What decision making process does he go through?

Mr. Weisselberg: I suppose he would look at the assets again and the liabilities of the corporation, see if there is a way that the corporation would have the funds to support the filing fee, and figure out the costs in that respect, Your Honor.

He'd have to go and determine what the filing fee would be and what the costs of the civil litigation would amount to.

But I would... I'd like to point out that I don't think that process is that much more difficult than it is for an individual.

The in forma pauperis statute doesn't give the courts the criteria that are used to determine whether an individual may proceed in forma pauperis.

Unknown Speaker: No.

Mr. Weisselberg: That's something that--

Unknown Speaker: But with an individual, you know, a person presumably is thinking about food, shelter, some clothing, any liquid... you know, any cash at all, and it just doesn't seem to me that a corporation ordinarily thinks in those terms.

Mr. Weisselberg: --Well, and that might be one reason why this is unlikely to be used by many corporations.

Perhaps it would help address the policy aspects of it by describing the Men's Advisory Council itself in a bit more detail.

There are 10 dormitories in Unit II of the California Men's Colony.

Unknown Speaker: xxx.

What difference does it make?

I mean, the argument... I don't care what the men's dormitory... today it's the men's dormitory council.

Tomorrow it's going to be some association of millionaires--

Mr. Weisselberg: Well--

Unknown Speaker: --who simply haven't put very much money into this association or corporation.

So, you have a very impoverished corporation composed of members who are very wealthy, and you would have to argue, well, a person is a person.

This is an association.

The association as an association is poor.

Mr. Weisselberg: --Justice Scalia, I disagree, and perhaps I can explain why.

The reason why I wanted to describe the Men's Advisory Council a little... in a little more detail is that I think it's an excellent example of a situation in which an association is bereft of funds and actually in this case bereft by action of one of the defendants, the warden.

But going back to the... your example, Justice Scalia, that of a corporation perhaps deliberately underfunded, the in forma pauperis statute gives the Federal courts and gives the district courts tremendous discretion in determining whether or not an organization or a corporation is indigent.

And if a corporation is underfunded, that's a usual instance in which a court might look beyond the shell, that is, the structure of the corporation, to the assets of the individuals.

Unknown Speaker: I don't know what you mean by underfunded.

People bought stock in the corporation.

The business didn't do very well.

Since it was a losing business, they declined to contribute any more money, but in fact, all of the owners of the stock are millionaires.

Is that underfunded?

It's just a poor corporation.

There is no blame there.

It just so happens that it's owned by millionaires.

Mr. Weisselberg: Well, Your Honor, I suppose I'd simply suggest that it's a very rare instance when a corporation, even if it is bankrupt or going bankrupt, can't spare the 120 dollar filing fee for an action in Federal court or funds for witness fees.

Unknown Speaker: What about lawyers?

This section 1915 also requires that the court may request an attorney to represent any such person unable to employ counsel.

Now, counsel are very expensive.

You... do you think that in this context we should interpret that to mean corporations and associations, that the courts are going to appoint counsel to represent corporations?

Mr. Weisselberg: Well, the courts are free in their discretion I believe under that section to request counsel to represent an indigent association, just as the Ninth Circuit requested us to represent this indigent association.

Of course, that's on a pro bono basis, as I think this Court recognized also in the Mallard decision.

Unknown Speaker: Mr. Weisselberg, could this action have been brought as a class action and affidavits of indigency supplied by named plaintiffs?

Mr. Weisselberg: I suppose that it's possible that an inmate may have filed this action on behalf of a class of other indigent inmates at the institution.

Nevertheless, this association is one that was formed at the request of the warden with the specific purpose of representing the inmates to give them representation and a voice in the way the prison affairs are run.

This is the organization that exhausted administrative remedies.

This is an organization consisting of elected representatives from different dormitories.

So, this is a... an organization very well suited to bring this action.

And I think in the UAW v. Brock case, this Court recognized that it may be better in many circumstances for an organization composed of individuals to bring an action than it would be to proceed through a class action under Rule 23.

Unknown Speaker: Is there any way of construing 1915 to say that associations are included within the word, person, but corporations aren't?

Mr. Weisselberg: Your Honor, I think using 1 U.S.C., section 1, all of the entities that are listed in that section would come within the meaning of the word, person.

Unknown Speaker: So, it's either corporations and associations, or it's neither.

Mr. Weisselberg: Well, I suppose initially I would look to 1 U.S.C., section 1 and consider all of the entities listed there to be persons if I suppose the Court were to think that for some reason the context of the statute indicates that only several of them--

Unknown Speaker: xxx what an association is.

Mr. Weisselberg: --Yes, Your Honor, generally a collection of individuals.

Unknown Speaker: You mean just anybody can say... a bunch of neighbors get together and they just say we are an association?

Mr. Weisselberg: Well, Your Honor, associations are formed in many ways I suppose, but the question here isn't whether associations per se can litigate in Federal court because they can.

The only question here is whether indigent associations may proceed under the in forma pauperis statute, and to the extent there are questions of standing--

Unknown Speaker: Well, but isn't--

Mr. Weisselberg: --and such, they--

Unknown Speaker: --But you have to recognize that... even you have to recognize what an association is--

Mr. Weisselberg: --Yes, Your Honor.

Unknown Speaker: --to get in forma pauperis status.

And it would, of course, mean that people, for instance, landowners wanting to fight a zoning change, could form an association and not fund it and claim indigent status and get a lawyer appointed.

Mr. Weisselberg: Well, in that... several responses to that, Your Honor.

First, I suppose many different groups can form an association, but again if that sort of an association sought to proceed in forma pauperis, the district court would be free to look at the assets of the individual members of the association.

But--

Unknown Speaker: Why is that?

Mr. Weisselberg: --They'd be free to do that.

Unknown Speaker: Why would it be free to look at the assets of the individual members?

Mr. Weisselberg: Well, Your Honor, the courts have said simply that there's a lot of discretion, enormous discretion, in the judges in terms of how--

Unknown Speaker: So, one judge could look at the assets of the individual members and another judge would not, and either one would be correct?

Mr. Weisselberg: --Well, Your Honor, I think that the discretion will have to be guided by some future decisions as this area of law develops.

I mean, again--

Unknown Speaker: But what is the rule in your view that ought to be enunciated?

When an association files for IFP--

Mr. Weisselberg: --Yes.

Unknown Speaker: --may a court consider the assets of the individual members or only those of the association?

Mr. Weisselberg: Well, I think initially the court ought to simply look at the affidavit that is submitted on behalf of the association.

In the Adkins case, the Supreme Court case--

Unknown Speaker: I don't think you've answered my question.

Mr. Weisselberg: --Well, I think initially the court ought to look to the affidavit which describes the assets of the association, but the court would want to know, in essence, the purpose of the association, whether it was formed in some way--

Unknown Speaker: Well, now--

Mr. Weisselberg: --perhaps to avoid paying fees.

Unknown Speaker: --why don't you give me an answer to the question and then explain?

Does a court look to the assets only of the association, or does it look to the assets of the individual members?

Mr. Weisselberg: I believe the court should look to the assets of the association only unless the materials give the court a reason simply to look further, say, a suspicion that the organization was not adequately funded by the members, something like that, Your Honor, some indication from the papers.

Unknown Speaker: Suppose it's plain the association hasn't got any money, but it's also just as plain that the members of it do.

Mr. Weisselberg: I'd see no reason why the court couldn't look to the members of the association for the funds.

Unknown Speaker: So, you only look to the association exclusively if you find that it has so much money of its own that it doesn't deserve in forma pauperis.

Mr. Weisselberg: Well, Your Honor--

Unknown Speaker: If it doesn't have any money, then you look to... always look to the members.

Is that it?

Mr. Weisselberg: --Your Honor, I would say the court should look to the affidavit first which would normally set out the assets of the organization, and it would probably, I would assume in this circumstance, give an indication of the purpose from the organization and from that, Your Honor, the court would have some understanding of the purposes of the organization, whether it was--

Unknown Speaker: Well, what about a partnership that has filed its articles of partnership according to law?

Mr. Weisselberg: --Ordinarily, Your Honor, in a partnership, one looks to the assets of the members of the partnership.

The court would be free to do so.

Unknown Speaker: Well, a fortiori, I suppose you ought to look to the... because a partnership is more of a... is treated more as an entity in more circumstances than an association I suppose.

And yet, you say look to the assets of the partners.

Mr. Weisselberg: Well, you know, again, perhaps this is a good instance in which a court wouldn't look past the assets of the organization.

I mean, in this case, the organization consists of elected members from the prison who were formed by... at the request of the warden with a purpose of addressing administrative problems within the prison itself, and under those circumstances, it would be difficult to say that individual elected representatives, people who are serving because the warden wanted the inmates to have a voice, should be forced on their own to pay the assets even if they were able to gather the funds.

I mean, in this case the warden prohibited the organization from collecting funds.

The record clearly states that the organization couldn't have an account, couldn't collect funds through a fund raiser of any type.

So, you have an organization which was formed to represent the inmates and was made indigent by one of the defendants in the action itself.

So, I would think this is a good example of a case in which a court would look at the assets of the organization, the bona fide purpose of the organization, and not look further than that.

Unknown Speaker: I assume you think the same about corporations as you do about partnerships and associations, that you look to the stockholders?

Mr. Weisselberg: Well, Your Honor, I would think that the courts are very free to borrow from general principles of corporate law when one pierces the corporate veil.

Unknown Speaker: No, but that would mean you normally wouldn't look to the stockholders.

Unless there's some special malice or fraud or something involved, you don't look to the stockholders.

So, it's enough that the corporation is impoverished.

That's--

Mr. Weisselberg: I would say that in general, yes.

But, Your Honor, I don't want to--

Unknown Speaker: --Suppose I form a corporation to do a public interest litigating functions, public interest litigation firm, only its causes, the causes it wants to litigate, are very bad causes, so it can't raise any money.

It raises very little money.

No problem, right, because it will be able to proceed in forma pauperis and even to have the court appoint counsel.

Mr. Weisselberg: --Well, I think the court--

Unknown Speaker: 0 xxx.

Mr. Weisselberg: --I think the court would want to look and see if the person who formed the organization did so having funds on his or her own and simply underfunded the organization.

Unknown Speaker: Well, now, but there's no fraud involved here.

I thought you said normally you don't look past the corporation unless the usual reasons that you pierce the corporate veil.

There's nothing underhanded about setting up a corporation with very small capital.

There's nothing evil about that.

That's perfectly valid.

There's no fraud.

Mr. Weisselberg: Well, Your Honor, I mean, under those circumstances, I assume the court would look to the assets of the organization.

Unknown Speaker: So, then whenever you have a poor corporation, you do look behind... you pierce the corporate veil.

Mr. Weisselberg: Well, no.

I'm sorry, Your Honor.

I thought I said that the court would look initially to the assets of the corporation, and if there was a reason under generally accepted principles of corporate law to look past the assets of that organization, the court would have the discretion to do so.

Unknown Speaker: Well, we're just going around again.

As I say, under normal principles of corporate law, you don't pierce the corporate veil unless there's some fraud.

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

But frankly, I know the court has... and we've taken an awful lot of time discussing what may appear to be this practical problem, but in general I am not at all certain that the courts will have difficulty assessing when organizations can go in forma pauperis.

And I don't really that this is something which will come up much.

I mean, frankly, the Southern District of New York decided the Harlem River case 15 years ago.

In that case, the district court held that associations and corporations are persons within the meaning of the in forma pauperis statute.

I think this Court can take note of the fact that the Southern District of New York is a district which has quite a number of corporations and associations, and yet, since the Harlem River case, no case has reached the Second Circuit on this issue.

There's no other reported case in the Southern District of New York.

I don't know that this is something which is going to come up often.

Also, I would point out that if organizations are bringing lawsuits on behalf of individuals, it may well be that there would be a reduction of litigation in the Federal court because an association suit may replace suits of many individuals.

So, first, I don't know that this is something which will cause a problem for the courts, and I don't know that it will come up very often at all.

I'd also like to point out the in forma pauperis statute, section 1915, doesn't even give guidelines as to... assess the indigency of individuals, and yet, the courts have managed to fashion their own rules to determine when individuals can proceed in forma pauperis.

And the courts have developed that jurisprudence and have not had difficulty in developing it.

And I'd suggest that the courts, if associations or corporations do occasionally sue under this in forma pauperis statute in the future, will have no difficulty developing that jurisprudence either.

I know that the petitioners have suggested that legislative history means context and that the Court ought to look to legislative history.

I'd suggest that context means overall text and purpose of a statute, and that if this Court looks to the legislative history in this case, it does it for the same reasons that the Court ordinarily looks to legislative history, and that is if the statute is deemed ambiguous in any respect or if there is an argument that interpreting the statute literally would frustrate the intent of the legislators.

I think that the language of the statute is clear.

The statute is not ambiguous.

Section 1915 says that persons may proceed in forma pauperis, and 1 U.S.C., section 1 says that persons include associations.

So, it's not an ambiguous statute and one should not look to the legislative history under that... for that reason.

If there is a claim that interpreting the statute literally would frustrate the intent of the legislators, I think this Court in Union Bank v. Wolas said that a party making that argument has an exceptionally heavy burden to meet.

Unknown Speaker: What would you say if the committee report says we know we've used the word, person, in this statute, but we have no intention that that word, person, means what the general definition of person is--

Mr. Weisselberg: I think that--

Unknown Speaker: --in another statute?

Mr. Weisselberg: --I think that would be a much harder case for me, Your Honor, and that might be a circumstance in which a... the legislative history would indicate otherwise.

But we don't have that at all here, Your Honor.

Unknown Speaker: You think the legislative history has to say that in order to make a difference.

Mr. Weisselberg: Yes, Your Honor.

I think it does, and it doesn't say that at all here.

The legislative history contains some references to aliens, and it may well be that some legislators were motivated to amend the in forma pauperis statute to allow aliens to proceed in forma pauperis.

Unknown Speaker: You acknowledge, though, that legislative history is relevant within... it is part of the context.

Mr. Weisselberg: No, Your Honor, I don't think that it comes--

Unknown Speaker: Well, you just did.

You just said that.

Mr. Weisselberg: --No.

What... I'm sorry, Your Honor.

What I meant to say is the Court considers legislative history, in essence, for two reasons: one if the statute is ambiguous, and this statute is not ambiguous; second, if a party makes a claim that interpreting the statute literally is absurd or would lead to absurd consequences, or that it was contrary to the--

Unknown Speaker: 0 xxx.

Mr. Weisselberg: --thwart the intent of the legislators.

That's a circumstance in which this Court has in the past--

Unknown Speaker: Well, you said it would be a much harder case if the committee report said we don't intend to apply the general definition of person--

Mr. Weisselberg: --Yes, Your Honor.

Unknown Speaker: --and we don't intend to include associations and corporations.

And you said that would make a difference.

Mr. Weisselberg: I said that would make it a much harder case, Your Honor, because--

Unknown Speaker: If that's xxx, you should say no, it wouldn't make any difference because it's still not context.

No matter how clear it is, it's not context.

xxx context--

Mr. Weisselberg: --Your Honor, what I'm saying... what I mean to say is that I don't think that context includes legislative history.

I think if this Court looks to legislative history, it does for the other reasons--

Unknown Speaker: --Well, then there wouldn't be any harder case than my example.

Well, sure it would be a harder case because you have to overcome the argument that your reading is absurd, and that's what you saying.

That's what you'd look at to see if was absurd, and you'd say no--

Mr. Weisselberg: --That's right.

Unknown Speaker: --that it's harder to that extent.

You got one more hurdle to cover.

Mr. Weisselberg: That's right, Your Honor.

Unknown Speaker: There's no inconsistency in your position.

You're making alternative arguments.

Mr. Weisselberg: Well, all I wanted to point out is that I think that a party that's making the argument that interpreting a statute literally has an exceptionally heavy burden to meet and it is so heavy that that argument failed in Griffin.

It failed in Mansell v. Mansell.

It failed in Ardestani, and it must fail here.

Well, if there are no further questions, I--

Unknown Speaker: Thank you, Mr. Weisselberg.

Mr. Ching, you have 12 minutes remaining.

Rebuttal of James Ching

Mr. Ching: Yes, Your Honor.

I have two brief, very brief, points.

The first is this counsel point which crops up again.

If, in fact, we have to take corporations and associations simultaneously because of the definition of section 1, then it means the 19... under provisions of 1915, each of those will have to have appointed counsel.

Unknown Speaker: No, it doesn't at all.

The statute doesn't say he must appoint counsel or even he may appoint counsel.

Mr. Ching: Certainly--

Unknown Speaker: The section says he may request an attorney--

Mr. Ching: --Exactly right.

Unknown Speaker: --to represent any such person, but the lawyer can say no.

Mr. Ching: And my point is that corporations never appear except through counsel, and a fortiori, neither can associations.

There is internally--

Unknown Speaker: Well--

Mr. Ching: --an inconsistent provision--

Unknown Speaker: --Neither do individuals generally appear without counsel.

Mr. Ching: --Well, in forma pauperis individuals appear without counsel all the time, my point being that if the general rule regarding representation of corporations is followed through, the statute does not adequately address the special needs of corporations and associations to appear--

Unknown Speaker: Well, that's just a different rule.

That doesn't mean that they can't be... have in forma pauperis status.

All it means is that you can have it, but in order to get into court, you got to have a lawyer.

Mr. Ching: --Yes.

Unknown Speaker: Bring your lawyer.

Bring your lawyer.

Tell your lawyer that you're broke and he should--

--Meet you at the courthouse.

Mr. Ching: Meet you at the courthouse, yes.

Unknown Speaker: He should come with you.

Well, he got a lawyer here without the help of the court, didn't he?

Or was he appointed by the court?

Your opponent.

Mr. Ching: He was appointed by the court.

Unknown Speaker: By the court, oh.

Mr. Ching: Pro bono.

My point is that under the provisions of the statute--

Unknown Speaker: He's shaking his head.

He shouldn't do that during your argument, but he--

[Laughter]

Mr. Ching: --And so am I because I was appointed by the court without authorization other than that.

But the only point I make is if the statute is worded in terms of discretionary appointment of statute... of counsel, that is inconsistent with the concept that associations or corporations could be in forma pauperis because they must appear through counsel.

Unknown Speaker: No, but many of these in forma cases, there are volunteer associations of lawyers, pro bono groups that do volunteer legal services without the judge intervening.

They draft the complaint and so forth.

And that could have happened here whether, in fact, it did or not.

Mr. Ching: Well, it was a simple point well-refuted.

I'm prepared to submit the matter.

Chief Justice Rehnquist: Thank you, Mr. Ching.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

Attribution:

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Featured:

Neitzke v. Williams - Oral Argument

Sun, 06 Feb 2011 03:45:53 +0000

Case:

Neitzke v. Williams

Media File:

87-1882_19890222-argument.mp3

Related Transcript:

87-1882_19890222-argument.xml

Transcript:

ORAL ARGUMENT OF ROBERT S. SPEAR ON BEHALF OF PETITIONERS

Chief Justice William H. Rehnquist: We'll near argument next in No. 87-1882, Dean Neitzke or Neitzke v. Harry Lawrence Williams.

You may proceed whenever you're ready, Mr. Spear.

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

This case was initiated by Mr. Williams, a prisoner at the Indiana State Reformatory, a maximum security institution, tendering the complaint for filing to the United States District Court for the Southern District of Indiana.

This complaint was tendered pro se and pursuant to 28 U.S. Code, Section 1915 as a pauper's petition.

It was a 42 U.S. Code, Section 1983 action.

There were five defendants.

The complaint alleged violations of the Eighth Amendment and also due process violations.

The district court dismissed the entire case as frivolous, pursuant to Section 1915(d).

Thereafter, the district court allowed on amendment and again dismissed the case.

The Seventh Circuit affirmed this dismissal as to three of the defendants under both theories, and also as to the remaining two defendants under the due process theory, but revived the action as to the Eighth Amendment against Mr. Neitzke, the hospital administrator, and Dr. Chol, the medical director.

In establishing this case, the Seventh Circuit set forth the following standard:

"A frivolous complaint is one in which the petitioner can make no rational argument in law or facts to support his or her claim for relief. "

And in making this holding, the court relied on the D.C. Circuit case of Brandon v. District of Columbia Board of Parole.

The Seventh Circuit, therefore, clearly held that 28 U.S. Code, Section 1915 (d) is not synonymous with the test under 12(b)(6).

The court specifically agreed with the district court that the Eighth Amendment allegations in this case failed to demonstrate the level of indifference necessary to survive the 12(b) motion under Estelle v. Gamble but nevertheless held that the case should be filed.

It is the Petitioners' contention in this case that a complaint which fails to state a claim upon which relief can be granted is frivolous within the meaning of 28 U.S. Code, Section 1915(d).

Section 1915 allows access to the federal courts for the poor, as set forth in decision of this Court in Adkins v. DuPont.

There is an already established standard for 12(b)(6) for pro se complaints which is, when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

This Court set forth this standard in Conley, reaffirmed it in Halnes, and indeed in Estelle v. Gamble.

It's Petitioners' contention that this standard is low enough.

The issues in this case deal with how the district courts should handle the congressional mandate of Section 1915(d) not to permit frivolous or malicious complaints under pauper's petitions.

We are not addressing here the variety of methodology by which various circuit courts have tried to handle this problem.

We are talking about the lowest permissible standard as opposed to another standard that may be established in a different circuit.

It is Petitioners' contention that a complaint which does not meet the pro se test for a 12(b)(6) motion is a minimum beneath which no complaint should be allowed to be filed.

Unidentified Justice: When you say it doesn't meet the pro se test, Mr. Spear, you're talking about the rule that pro se complaints are liberally construed in favor of the plaintiff?

Mr. Spear: Yes, Your Honor.

The Petitioners in this case would submit that instead a test should be establishing using 12(b)(6) as the standard beneath which the legal sufficiency of the complaint should not be allowed to go for purposes of Section 1915(b).

Unidentified Justice: Mr. Spear, at least on, on the face of the language there appear to be differences between the two provisions, and it isn't really clear to me that they would necessarily be the same.

Do you think that Rule 11, which is designed, according to the notes, to help eliminate frivolous claims, is implicated every time a complaint is dismissed under Rule 12(b)(6)?

Mr. Spear: No, Your Honor, it is not.

But it is a showing under Rule 11 that you must show, in order to avoid this sanction as a plaintiff, that you have a basis in fact and in law.

If you do not have a basis in law, Rule 11 sanctions would apply in a situation where the standard was not closed, but not... would only apply... would not apply in those rare cases where it is not clear-cut whether or not the complaint fails to state a claim.

In short, although many cases, perhaps most that reach this Court, there is a serious question of the sufficiency of the legality.

At the district court level, the vast majority of complaints are fairly readily apparent whether they meet the 12(b)(6) standard.

Unidentified Justice: Well, do you think that the frivolous and malicious standard under the statute applies to factual as well as legal aspects of the complaint?

Mr. Spear: Yes, Your Honor.

Unidentified Justice: You do?

Mr. Spear: We'd submit, however--

Unidentified Justice: Does the district court have the power on its own sua sponte to inquire behind the fact of the complaint under 1915?

Mr. Spear: --Apparently it does, Your Honor.

We note in our brief that several circuits, specifically in at least one instance in the Second, and the Eleventh and the Fifth and the Fourth, rather frequently do this.

Now, we are not suggesting--

Unidentified Justice: Could they refer it to a magistrate to find out some facts on whether to dismiss under 1915?

Mr. Spear: --Yes, Your Honor, we believe they have that power... in fact, do so right now.

That is not, however, the case that is in front of the Court today and we'd also point out, Your Honor, that probably when it talks about frivolous--

Unidentified Justice: Well, do you think under Rule 12(b) that one does that, or does one look just to the face of the complaint?

Mr. Spear: --The face of the complaint, Your Honor.

And we are only dealing with with the legal sufficiency here under a frivolous test.

Normally one would suspect that since the language of the statute isn't disjunctive of frivolous or malicious... malicious may very well tend to be factual.

For instance, if a party were to bring a hundred lawsuits within a period of a few weeks or multiple lawsuits against the same person for the same facts, that would tend to fall under the malicious side of the test.

That's not what we have here.

This is on the frivolous side of the test, and in front of us we have a pure legal test.

We would submit further that the Rule 11 standard, which has been proposed by the Respondent in this case, is particularly inappropriate for use in this context.

Rule 11 is used by the district courts as a sanction and a deterrent to paying plaintiffs and to their lawyers for filing complaints which are either not based correctly in the law or not based correctly factually.

They have to meet both tests.

It is not appropriate to use such a standard for plaintiffs who on their face cannot be deterred or, or punished in any fashion for bringing a frivolous complaint when they have, on their face, tendered a proper pauper's petition and literally have no assets upon which to levy.

The test that we are attempting to have this Court establish, although it has not reached this Court yet, has already been established in our opinion in eight of the circuits, and only the Seventh Circuit and the D.C. Circuit have found that a complaint can go lower than a 12(b)(6) motion standard and still survive in some viable fashion.

The test, in fact, is broader in both the Eleventh Circuit and, at least in one case, in the Second.

We are not contending that here today because it has not simply reached this basis in this case.

The standard method in the Southern District of Indiana and the Northern District is that a complaint is referred to a magistrate.

The magistrate makes findings that, in fact, it states a claim.

He has the power to order a file and then process is served.

Unidentified Justice: Well, Mr. Spear, you say that in the Southern District of Indiana the complaint is referred to a magistrate and the magistrate makes findings as to whether it states a claim?

Mr. Spear: Your Honor, the magistrate examines the complaint and if it, in his opinion, states a claim, he has the power to order a file and process it, sir.

If in fact in his opinion it does not state a claim, or is frivolous under the 1915(d) standard, he makes a recommendation and sends it to a district judge.

And the district judge makes the determination of whether or not the complaint is filed or not filed.

Unidentified Justice: So, the magistrate in either of those situations doesn't make what are... what would normally be called factual findings?

Mr. Spear: No, Your Honor.

They're not factual findings.

These are legal findings.

And, in fact, in the Seventh Circuit the only test... there is no factual test prior to filing... the only test is the legal test.

Unidentified Justice: I thought you responded to me that it was perfectly proper under 1915 to make a factual inquiry?

Mr. Spear: Yes, it is, Your Honor.

But that is not the test the Seventh Circuit uses.

The test that is used in other circuits makes those factual inquiries.

In... in an adversarial proceeding in front of a magistrate sometimes... with lawyers on both sides.

We're not suggesting that procedure here today.

We... We have not reached that question.

We have a single issue on the legal sufficiency at the single complaint under the current standards used by the Seventh Circuit.

And we would submit that they have dropped below the permissible standard for 1915(d) in... contrary to what eight other circuits have held.

So, there are multiple ways to deal with 1915(d).

We're not suggesting there are not.

Unidentified Justice: Mr.--

Mr. Spear: We're suggesting this is below--

Unidentified Justice: --Mr. Spear, can I just a... get a little bit more about the procedure you actually follow in the, in the Southern District of Indiana.

You say the pro se complaint is filed.

It's automatically referred by the clerk to a magistrate.

Or does it go through the judge's office first?

Mr. Spear: --It is tendered in the clerk's office, and from the clerk's office it goes to the magistrate.

Unidentified Justice: All right.

And then the magistrate screens it and he decided whether it states a cause of action or not.

And does he... does he--

Mr. Spear: And also pauper's petition about whether those--

Unidentified Justice: --Whether the financial requirements.

Mr. Spear: --Yes, sir.

Yes, sir.

Unidentified Justice: And that no service is made on the defendant while this is being done?

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

Unidentified Justice: And what is... is there a rule that prescribes how promptly he must do this?

Mr. Spear: No, Your Honor, although it is my understanding that it is done very promptly because from the time of tendering by, by a prisoner case, for instance--

Unidentified Justice: Is it stamped--

Mr. Spear: --'til it's filed is within days.

Unidentified Justice: --Is it stamped when it's delivered to the clerk's office and then... is there a docket entry made and a case file opened on the case?

Mr. Spear: Your Honor, it is not... it is not filed at that time and I--

Unidentified Justice: It's not filed.

So I take it there's no time stamp on when it comes in or--

Mr. Spear: --No, Your Honor, there's not.

Unidentified Justice: --And then if the... then when the... when the magistrate gets through with it and he says,

"I don't think this is worth filing. "

what do they do?

Mail it back to him or do they keep a copy in the file?

Mr. Spear: Your Honor, he... he lacks the authority to be able to make that decision himself.

He--

Unidentified Justice: But he sends it to the judge.

Mr. Spear: --Sends it to the judge.

Unidentified Justice: The judge says, "I agree with you".

And I imagine routinely the judge would probably agree with the magistrate because there's no point in saying the magistrate... if the judge is going to do all the same work all over again.

Mr. Spear: Yes, sir.

Unidentified Justice: I mean, just knowing how judges work.

So, the judge gets with the magistrate's recommendation.

And what does the judge do?

Mr. Spear: The judge looks... looks at it, and assuming the judge agrees with the magistrate--

Unidentified Justice: Right.

Mr. Spear: --issues effectively legal findings... not factual findings, but legal findings... with effect of a two or three page written opinion if it is not going to be filed, and sends... that is filed with cause number with the complaint.

And--

Unidentified Justice: It's then given a cause number?

It's given a number after the judge says it should not be filed?

Mr. Spear: --Yes, Your Honor.

Unidentified Justice: And then--

Mr. Spear: It's given a number and sent back to the pro se petitioner, a copy of the judge's opinion.

Unidentified Justice: --And when does... when does the time for the pro se petitioner to appeal from that action start to run out?

Mr. Spear: Thirty days, as it would be in any other appeal.

Unidentified Justice: From the time it's mailed back to him or... 'cause I gather there's no... is there an order entered by the district judge then?

Mr. Spear: Yes, Your Honor.

There is an order entered showing that it is dismissed under 1915(d).

Unidentified Justice: I see.

Mr. Spear: So that at that point the case is actually docketed.

From there it goes to the Seventh Circuit.

Courtesy copies in the case of state defendants in 1983 actions are ordinarily sent to the Indiana Attorney General's Office, and the Seventh Circuit routinely in such a case, when it is docketed there, sends us notice... or, actually, the Attorney General's Office, notice that such a case is now pending on appeal.

So, strangely enough, it is briefed on appeal as if the parties had already filed the complaint; 1915(d) allows the dismissal of the complaint either before or after filing.

But if--

Unidentified Justice: But if it automatically goes to the state.

Attorney General's Office, what is saved by not sending it to your office in the first instance?

Mr. Spear: --Your Honor, the... that is a courtesy copy.

Only about two-thirds of these cases deal with, with the State of Indiana.

A 1983 action may very well deal with a small county official--

Unidentified Justice: Oh, I see.

Mr. Spear: --and it also may deal with a state employee who does not wish to be represented by the Attorney General.

That's totally optional.

Now, they normally do because it's free, frankly, Your Honor.

But they can have their own counsel.

And they are unaware... they are unaware that the complaint has ever been tendered.

The rule in this case that we are contending for is simply a de minimus rule, not a rule that would change what we believe the standard to be before the Seventh Circuit entered the, the instant opinion.

And we are again arguing that Spears v. McCotter, Harris v. Menendez, and Martin-Trigona v. Stewart rules of the circuits should be adopted by this Court.

And, again, we've listed many other cases in our brief, as the standard beneath which a pro se tendered complaint cannot proceed under Section 1915.

That's the only issue in front of the Court.

It's the issue that we believe the Seventh Circuit has violated.

In conclusion, Your Honors, it is the position of the Petitioners in this case to established a familiar and identifiable standard under Section 1915(d) to determine when a pauper's petition should be dismissed as frivolous, and we would submit that that standard should be equivalent to the 12(b)(6) standard.

Unidentified Justice: May I just ask one other question.

It's kind of a... maybe it's kind of a silly in a way.

But the procedure that you follow deprives the defendant of knowledge that he or she has been sued.

Mr. Spear: Yes, Your Honor.

Unidentified Justice: Or has been attempted to be sued.

Mr. Spear: Yes, Your Honor.

Unidentified Justice: Maybe that's good and maybe it's bad.

Mr. Spear: Yes, it does, Your Honor.

But it also gives them the advantage of Section 1915(d), that they are not... they're not harassed or, or subject to the--

Unidentified Justice: They don't have to hire a lawyer or come into court or anything.

Mr. Spear: --Yes, Your Honor.

That's exactly right.

And for most defendants it's probably a privilege to be deprived of the right to be sued.

Unidentified Justice: Yeah.

Mr. Spear: They probably don't want to have that right.

Unidentified Justice: Yeah.

Mr. Spear: Thank you, Your Honor.

Unidentified Justice: Thank you, Mr. Spear.

Mr. Rutherglen.

ORAL ARGUMENT OF GEORGE A. RUTHERGLEN ON BEHALF OF RESPONDENT

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

This case concerns the question of whether the standard for dismissal of frivolous actions under Section 1915(d) is the same as the standard for dismissal for failure to state a claim under Rule 12(b)(6).

Respondent submits that it is not, for two reasons.

First, Federal Rules of Civil Procedure, and other principles of our adversary system, sharply distinguish between frivolous actions to warrant the imposition of sanctions in a complaint that simply fails to state a claim.

In particular, a motion to dismiss for a failure to state a claim raises a pure question of law.

This question of law may not be frivolous.

Petitioners propose that the district courts should always routinely resolve these questions of law, even when they present major questions of constitutional law, without the benefit of an adversary presentation by either party.

Second, the literal terms of Section 1915(d), its legislative history, and the prior decisions of this Court, require the same standards of frivolousness to apply in actions by litigants as... in actions by indigents as in actions by ordinary litigants.

When Congress used the phrase 1915(d), it did not mean failure to state a claim.

Unidentified Justice: Mr.... Mr. Rutherglen, when was... 1915 was... it's a pretty old statute.

It's older than the Civil Rules by a good deal, isn't it?

Mr. Rutherglen: Yes, Your Honor.

It was enacted in 19... in 1892.

Unidentified Justice: So, you know, what... what Congress had in mind concerning frivolousness for purposes of dealing with the federal rules doesn't really... there's no reason to think it had anything to do with what Congress had in mind in the 19th century when it decided who would have the privilege of proceeding in litigation without paying ordinary court costs.

Mr. Rutherglen: Yes, Justice Scalia.

The legislative history does not speak to the content of the phrase frivolous.

The single most common use of the word frivolous in the opinions of this Court before 1892 concerns the procedure for dismissing an appeal for failure to present a substantial federal question.

And, indeed, the rules of this Court in their 1878 version, Supreme Court Rule 6, specifically allowed a motion to affirm on the ground that the question on which jurisdiction depends is so frivolous as not to need further argument.

If Congress was aware of any standard usage of the word frivolous, it was aware of its equivalence with failure to state a substantial federal question.

Moreover, that's exactly what this Court held much later in Coppedge against United States.

This Court held that a pauper's appeal could be dismissed only when a paying litigant's appeal could be dismissed, only when it failed to state a substantial federal question.

Respondent submits that failure to state a substantial federal question is virtually identical to the standard adopted by the court of appeals in this case.

Is there a rational basis in fact and in law for the complaint that the plaintiff has submitted?

Unidentified Justice: Just as a matter of English usage, Mr. Rutherglen, failure to state a substantial federal question does not sound a great different to me than failure to state a claim on which relief can be granted.

Mr. Rutherglen: Your Honor, there are numerous decisions of this Court, for instance, the famous decision in Bell against Hood which established precisely this distinction.

This Court held in Bell against Hood that the question whether there was a claim directly under Fourth Amendment presented a substantial federal question, even though the district court might on an adversary presentation dismiss because the complaint failed to state a claim after the district court held that there was no such cause of action.

Unidentified Justice: Do you think that kind of hair-splitting that we have in Bell against Hood is a good model to pattern a system that's going to process an awful lot of indigent complaints?

Mr. Rutherglen: I do, Your Honor, so long as the procedures and the burdens that are put upon the federal district courts and that are put upon the defendants in these cases are clearly set forth.

All we are seeking today is the basic minimal procedures which any paying litigant gets in federal court.

Just notice of the supposed defects in the complaint and an opportunity to respond to those defects before the complaint is dismissed.

Moreover, Your Honor, we only defend the judgment of the court of appeals in this case.

The court of appeals said that it was perfectly appropriate for a dismissal under Section 1915(d) to be done sua sponte if there was no rational basis in law or fact for the plaintiffs' claims.

And, indeed, in this very case the court of appeals affirmed the dismissal of almost all of the plaintiffs' claims.

Only two claims were sent back down to the district court.

Unidentified Justice: Do you think courts can sua sponte dismiss under Rule 12(b)(6)?

Mr. Rutherglen: Your Honor, courts can sua sponte dismiss under Rule 121(b)(6).

My understanding of standard federal practice, as reflected in the federal rules, is that ordinarily they don't.

Unidentified Justice: But some circuits do, do they not?

Mr. Rutherglen: Courts in some circuits do?

I believe it is the exceptional practice, Your Honor.

Bear in mind that Petitioners' claim is not to do this in exceptional cases.

Petitioners' claim is that as an ordinary practice in indigent litigation a complaint will be dismissed without giving any notice to anybody.

Now, of course, Respondent in this case cannot complain about the absence of notice to the Defendants.

But Respondent himself got no notice until judgment was entered against him.

We submit that this practice is both contrary to the ordinary procedures under the Federal Rules, deprives the plaintiff of notice and opportunity to be heard on the sufficiency of his complaint and works to the detriment of the efficient administration of justice in the federal system.

We believe that the federal courts will do a better job in handling these cases, and we admit they pose problems for the federal districts courts if it asks the defendants simply to submit a motion to dismiss for failure to state a claim under the Federal Rules.

Unidentified Justice: Well, then you have to grant the motion to proceed in favor of paupers, the case has to be docketed, and you go through that whole procedure.

Mr. Rutherglen: Yes, Your Honor.

Those are fairly minor administrative expenses.

But, bear in mind, under the court of appeals' decision, it is only when there is a close case, only when there is some rational basis in law and fact, that we even go through that minimal procedure?

Unidentified Justice: Well, I... yeah, but your submission is that any time that it isn't frivolous you go through that procedure.

Mr. Rutherglen: Well, Your Honor, I think that the statute virtually requires--

Unidentified Justice: No.

Mr. Rutherglen: --that conclusion.

Unidentified Justice: That's... your position is that unless it's frivolous you go through that procedure.

Mr. Rutherglen: Yes.

I think the statute requires the federal district courts to--

Unidentified Justice: Well, Mr.... Mr.... the statute says, "may authorize the filing".

It doesn't say "shall".

Mr. Rutherglen: --That's right, Your Honor.

The--

Unidentified Justice: That would appear to give discretion to the district court.

Mr. Rutherglen: --Yes, Your Honor.

It would appear to give discretion to the district courts.

However, I know of no decision in the lower federal courts that leaves this issue entirely to the unfettered discretion of the district judges.

Unidentified Justice: Well, you answered... you agreed with Justice O'Connor.

I thought that that some districts do.

Some... in some circuits they do have sua sponte dismissals for a failure to state a cause of action.

Mr. Rutherglen: In cases involving paying litigants.

I thought that was the gist of her question.

But if I misinterpreted it, I apologize.

Unidentified Justice: Well, what's the difference?

A paying litigant, he's in court and the judge just says,

"I don't think you stated a cause of action. "

and he dismisses it sua sponte.

Mr. Rutherglen: Yes.

Our position on those circuits, Your Honor, is that their standard is the incorrect standard and should not be adopted by this Court.

Instead, we advocate that the... our courts of appeals--

Unidentified Justice: The paying client ought to have notice that he's about to be dismissed.

Mr. Rutherglen: --Except in clear cases.

Except in clear cases, we think that--

Unidentified Justice: What are those?

Mr. Rutherglen: --Well, Your Honor--

Unidentified Justice: Frivolous ones?

Mr. Rutherglen: --Yes, those are frivolous ones.

We submit that the definition of a frivolous case, both for indigent litigants and for paying litigants, is that the complaint is clearly insufficient.

Unidentified Justice: What's the difference between a complaint that is clearly insufficient and one that fails to state a claim?

Why set up a brand new standard?

Mr. Rutherglen: Well, Your Honor, the standard under Rule 12(b)(6) serves a quite different purpose than the standard that is appropriate under Section 1915(d) or under the standards for imposing sanctions against paying litigants.

The purpose of a motion to dismiss for a failure to state a claim under Rule 12(b)(6) is to isolate a dispositive issue of law at the beginning of the lawsuit before there has been factual investigation and factual findings by the district court and terminate the proceedings if those factual investigations are no longer necessary.

If... even though all the allegations that the plaintiff puts in his complaint are true, the law denies the plaintiff relief.

Now, that's one purpose served by Rule 12(b)(6).

Unidentified Justice: And that applies even if the law is pretty hard to figure out?

Mr. Rutherglen: That's right, Your Honor.

Unidentified Justice: You can still figure it out without getting into any further factual inquiry?

Mr. Rutherglen: That's right, Your Honor.

And there are any number of cases... we cite them in our brief... in which this Court has decided major questions of federal law in cases that came up on a motion to dismiss for a failure to state a claim.

We believe that that standard, which perfectly well suits that purpose, cannot be transplanted to do double duty under Section 1915(d).

In particular, if there is some doubt, and only when there is some doubt about the sufficiency of the complaint, we believe that the minimal procedures required by the court of appeals, service of process upon the defendants and an adversary presentation on the sufficiency of the complaint, will, first, protect the rights of indigent litigants, and, secondly, lead to the efficient administration of justice.

This case, we believe, illustrates exactly how these hasty procedures in the district court translate into wasteful procedures overall in the federal judicial system.

There were no adversary procedures whatsoever in this case in the district court.

We believe that it is better to have the adversary procedures in the district court before the case gets to the court of appeals.

In this case, because the district court did not serve process upon the Defendant, there was no adversary presentation on the sufficiency of the complaint.

It was only in court of appeals that three federal judges had to take the time to figure out whether this complaint stated a claim.

Unidentified Justice: Mr. Rutherglen, do you have any guess as to what percentage... I'm trying to think of, of how many cases in the circuits that adopt the, the rule you're arguing against would be affected by the, by the rule that you would have us adopt.

How many of these pro se complaints that are dismissed without further proceedings would have to go through further proceedings.

Mr. Rutherglen: Your Honor, I don't have those statistics at my--

Unidentified Justice: Well, I understand.

Mr. Rutherglen: --my fingertips.

But my--

Unidentified Justice: Are you--

Mr. Rutherglen: --I suspect--

Unidentified Justice: --How many would be clear in, in your estimation?

Eighty percent or closer to 20 percent?

Mr. Rutherglen: --My experience with prison litigation leads me to believe that this case is typical.

Most or all of the claims are clearly insufficient in most complaints drafted by prisoners by themselves.

But I cannot give you any numerical indication.

I think the best evidence of the burden that the procedure in the court of appeals... the procedure adopted by the court of appeals would put on the district court is revealed in this case, a simple need to serve process upon the defendant and then a filing of a motion to dismiss for failure to state a claim.

Unidentified Justice: Well, then, there's an argument on the motion to dismiss?

Mr. Rutherglen: There would be no need for argument.

The rules, Federal Rule 12(d), provides that a hearing must be held on any motion filed under Rule 12.

But my understanding is that hearings are rarely held in the district courts and that these motions are often decided on the paper record.

Unidentified Justice: So then what you want is the, the... in addition to the plaintiff's complaint, the defendant would presumably file a motion to dismiss, and the district court, which apparently would have felt beforehand that the complaint failed to state a claim for relief, is now given additional ammunition to reach that conclusion, and really nothing from the plaintiff.

Mr. Rutherglen: Well, the plaintiff is then given an opportunity to file a brief in support of the sufficiency of the complaint.

Unidentified Justice: But the plaintiff is pro se, presumably.

I gather that brief may not be a whole lot of help to the court.

Mr. Rutherglen: It is true, Your Honor, that the brief may not be a whole lot of help to the court, but with pro se litigants the courts, the federal courts, just must take them as they find them.

There is no question in this case about appointing counsel to represent these indigent litigants.

Our position is that given the disabilities, the practical disabilities that pro se litigants typically labor under, the procedures should be enforced against them so that they at least have an opportunity to respond to the alleged defects in the complaint before the judge has already made up his or her mind and entered judgment against the plaintiff.

That's what happened in--

Unidentified Justice: Well, why isn't--

Mr. Rutherglen: --this case.

Unidentified Justice: --Haines against Kerner enough for you?

Mr. Rutherglen: Haines against Kerner is not enough, Your Honor, because it is a standard that is designed to implement motions to dismiss for failure to state a claim.

Haines against Turner asks the court in very traditional fashion simply to assume that all the allegations stated in the complaint are true.

Unidentified Justice: Well, also to liberally construe the complaint, doesn't it?

Mr. Rutherglen: But it's... Your Honor, it nevertheless just says... I believe the exact words are that a court can grant a motion to dismiss for failure to state a claim only if it appears beyond doubt that the plaintiff can prove no set of facts at trial that would entitle him to relief.

Haines against Kerner, like any standard for dismissal for failure to state a claim, doesn't give the plaintiff the benefit of the doubt on the law.

That is precisely what the court of appeals said was appropriate in these cases in which there was some question about the sufficiency of the complaint.

Moreover, I believe that as a matter of judicial administration it would only confuse the lower federal courts if the standard, which is perfectly suitable for one purpose under 12(b)(6), is suddenly transplanted to be used to determine what constitutes frivolous actions under Section 1915(d).

This Court would never take that step with a paying litigant, risking the confusion that might arise from confusing Rule 12 with Rule 11.

Nor would this Court take this step with respect to assessing attorney's fees against civil rights plaintiffs.

This Court has clearly said in Christianburg Garment, case decided under Title 7 but now applied under the Civil Rights Attorney's Fees Statute, generally, that attorney's fees can be assessed against a civil rights plaintiff only if the plaintiff's action was frivolous, unreasonable, or without foundation.

Moreover, in a prior decision, this Court has squarely held in Hughes against Rowe that a prisoner's complaint could fail to state a claim, yet would not justify the imposition of sanctions under Section 1988.

Your Honor, the Petitioners rely quite heavily upon the statement in the court of appeals opinion that the complaint failed to demonstrate the level of deliberate indifference necessary to survive a motion to dismiss under Rule 12(b)(6).

We contend that this statement is simply a dictum, that what the court meant was that there was some doubt about the sufficiency of the complaint, as it went on to state explicitly in the very next sentence in its opinion.

Moreover, the overall order of the court of appeals is consistent with this interpretation of its statement.

The court of appeals sent the case back down to the district court for further adversary proceedings on this issue.

To the extent that Petitioners rely upon this statement, we contend, for reasons elaborated in Part IV in our brief, that the complaint specifically alleges, often with supporting evidence in exhibits attached to the complaint, that Respondent suffered a deliberate indifference to serious medical needs.

In any event, this dictum is just another example of the procedural complications that ensue from sua sponte dismissal of a complaint for failure to state a claim.

In its opinion, the court of appeals plainly meant to establish an orderly procedure for disposition of actions brought by indigent litigants, to have the district court first consider sua sponte whether a complaint has any rational basis in law or fact.

If it does, then to have process served upon the defendant and entertain a motion to dismiss.

If the court then granted the motion to dismiss, the case would come to the court of appeals, as it does in ordinary appellant practice, with the benefit of the district court's considered judgment after a presentation of the issues on the sufficiency of the complaint by both sides.

It is that procedure, not the effect of an unconsidered dictum of the court of appeals, that constitutes the only question of general significance before this Court today.

We believe that the court of appeals decided it correctly.

If the Court has no further questions, Respondent respectfully requests that the judgment of the court of appeals be affirmed.

Unidentified Justice: Thank you, Mr. Rutherglen.

Mr. Spear, do you have anything more?

Mr. Spear: Yes, Your Honor.

Very briefly.

The Petitioners in this case still contend that the pro se 12(b)(6) rules set out in Estelle v. Gamble and in Haines v. Kerner is in fact the appropriate standard and is a low enough standard to protect the rights of--

REBUTTAL ARGUMENT OF ROBERT S. SPEAR

Unidentified Justice: Mr. Spear, can I ask you this question on the... referring especial... specifically to Estelle against Gamble and the complaint against the medical people in that case--

Mr. Spear: --Yes, Your Honor.

Unidentified Justice: --which the district court had dismissed the complaint and under your view it should have found it frivolous because ultimately the dismissal was upheld, even though the court of appeals thought there was merit to the, to the claim.

So that, in your view, the standard of being frivolous means that no matter serious and close the argument may be, if the ultimate determination is that it doesn't state a claim, it's still frivolous?

Mr. Spear: Yes, Your Honor, although I would submit that in close cases, as we learned from Conley, Haines and Estelle, in pro se litigation in close cases they are decided in favor of the plaintiffs.

So, realistically that issue simply was--

Unidentified Justice: Well, it wasn't in Estelle.

It wasn't in the district court or in this Court.

Mr. Spear: --Your Honor, I would--

Unidentified Justice: And that was a close case.

I think everyone would agree to that.

Mr. Spear: --I think it was, Your Honor, but I would submit that that is an unusual situation.

Unidentified Justice: Well, if you think that's the case, then what... what harm is there to adopt... t adopt the rule that Mr. Rutherforn... Rutherglen suggests?

Mr. Spear: Because, Your Honor--

Unidentified Justice: If you think it's only in a rare case anyway that anything other than a clear complaint is going to be dismissed this way, you're really not losing anything.

Mr. Spear: --Your Honor, we would submit that there the Seventh Circuit has adopted a much lower standard and an unenforceable standard when it differed from the other circuits.

You had earlier asked the question about when the statute was originally adopted.

It was, in fact, originally adopted in 1892 and recodified in 1948 after the rules, of course, had been adopted.

But in 1892 Congress was locking at a system where the courts refused to cemure a system, and even learned lawyers had difficulty stating a cause of action.

Cases would go back, would be repled two or three times.

The different situation we have today with the modern rules and with the standard established under Haines and under Conley, that, that we would submit that in fact the current standard of 12(b)(6) is in fact, as interpreted by this Court for pro se plaintiffs, the equivalent of a frivolous standard as it would have existed in 1892.

There is a practical aspect to this case.

As the record shows, the court had already gone through this procedure, and had to go through this procedure under the Seventh Circuit no matter what the outcome was below.

That is to say, the district court had already examined the complaint and weeded out three of the defendants and half the claims against the remaining two defendants.

And it would have to do that under 1915(d) even if it had filed the complaint as the Seventh Circuit ordered it to do.

It's still going to go through the same test.

The magistrate is going to examine it.

The district court is going to examine it at that level.

What the test that's argued for by the respondent in this case, however, would do was cause the same process to happen twice because, assuming the complaint is then filed, the defendants are brought into court and they are penalized in effect... they are sued... they must defend themselves.

At that point, the pro se petitioner files his response and the district court goes through the same analysis to determine whether or not the case states a claim.

The identical analysis that it underwent before it allowed the case to be filed.

We would submit that that does not cause a judicial economy and it makes no rational sense to have that kind of a test when you have to do exactly the... the courts do exactly the same thing twice.

Plus, it burdens the defendants, plus it burdens the other potential plaintiffs in the whole system, which is now clogged, to say the least.

That kind of a standard does not assist the district court in following what Congress has told it it must do, and that is winnow out these cases, and, in fact, the Seventh Circuit has said they must do.

We would continue to submit, Your Honors, that a system that causes the same complaint to be examined for the same standard twice by the district court is not the system that should be adopted by this Court.

Rather, this Court should adopt the familiar and identifiable standard of 12(b)(6) as instructions for the district courts and the circuit courts, to allow them to implement the congressional policy of Section 1915(d) in a way that they can define and get a handle on.

The questions of this Court to learned counsel here show that in a specific case it was very difficult for him to define a rule that shows well, yes, it's below 12(b)(6), but how far below is it before it still must be dismissed because there's no... any question of any of the parties in this case or the courts that at some point 1915(d) does kick in and there is a dismissal.

The question is not whether there is any standard prior to filing.

The question is what is that standard.

And we would submit that the way to handle that in a method that's enforceable by the courts is to use 12(b)(6) because it is a standard that the lawyers, the courts, the judges are familiar with.

Thank you, Your Honors.

Chief Justice William H. Rehnquist: Thank you, Mr. Spear.

The case is submitted.

Unidentified Justice: The honorable court is now adjourned until Monday next at ten o'clock.

Attribution:

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Featured:

Nowakowski v. Maroney - Oral Argument

Thu, 23 Aug 2012 18:11:33 +0000

Case:

Nowakowski v. Maroney

Media File:

222_19670313-argument.mp3

Related Transcript:

222_19670313-argument

Transcript:

Argument of Daniel J. O'hern

Chief Justice Earl Warren: Number 222, Edward John Nowakowski, Petitioner, versus James F. Moraney, Superintendent State Correctional Institution.

Mr. O'Hern.

Mr. Daniel J. O'hern: Mr. Chief Justice, and may it please the Court, Mr. District Attorney.

This case comes before the Court on a writ of certiorari to the Third Circuit, United States Court of Appeals for the Third Circuit.

Narrowly stated the question presented in the case as whether the Court of Appeals erred in denying this petitioner leave to appeal in form of paupers from a decision of the United States District Court for the western district of Pennsylvania which had discharged an order in connection with a writ of habeas corpus.

I think more broadly stated the question in the case whether this Court and whether in fact the federal system administration and justice, can make a reality of the emblem of the Court which is carved in stone on the front of the Court, equal justice under law.

Basically, the question which presents itself to the Court is an interpretation of the statute in my opinion, namely 28 U.S. Code Section 1915, now that Section or that statute provides basically the procedure or the scheme whereby indigent proceedings may be brought in the courts of the United States.

It's a very general statute and it applies to any court of the United States.

It says that they may -- any court may authorize the commencement and certainly of any suit without prepayment of fees, cause and security etcetera.

An appeal may not be taken in form of paupers if the trial court certifies in writing that it is not taken in good faith, so that it applies equally to appeals.

Part or subsection (d) of the statute says “The court may request an attorney to represent any such person, and that any such person unable to employ counsel, it may dismiss the case if the allegation of poverty is untrue or it satisfied that the action is frivolous or malicious.”

Now I think the question in this case is that what stage in the proceedings may the court, whichever court it may be, use that part of 28 U.S. Code Section 1915.

Now since Griffin against Illinois in 1955, I think this Court has made it clear and in a long series of cases dealing with appeal matters that any invidious discrimination against an indigent defendant will not be sustained.

Now, the question is how do you decide if the discrimination in any particular case is invidious.

In Douglas against California, there was a procedure whereby the Courts of Appeal of a state in that case, would decide if the issues were frivolous or faceless, and then in that event they would decide that counsel need not be required and they would not appoint counsel.

And in that case which came on before this Court, this Court held that that was not equal to the type of appeal which is allowed to a man of means and they struck down that part of the California procedures.

Justice William J. Brennan: Well Mr. O'Hern this case I gather from the -- after hearing the writ of habeas corpus was denied wasn't it?

Mr. Daniel J. O'hern: Yes --

Justice William J. Brennan: -- a probable cause issue?

A District Court --

Mr. Daniel J. O'hern: The district judge found that there was probable cause for taking the appeal.

Justice William J. Brennan: So he signed a probable cause.

Mr. Daniel J. O'hern: Yes Your Honor.

Justice William J. Brennan: And then the indigent here was denied leave to proceed in a form of paupers on an appeal as to which the District Court had certified there was probable cause, is that it?

Mr. Daniel J. O'hern: Already, that's right Your Honor.

Justice William J. Brennan: And what was he denied?

Leave to proceed in a form of paupers or denied and also an appeal like --

Mr. Daniel J. O'hern: Yes, Mr. Justice, he had three parts.

He wanted a transcript of the proceeding in the Federal District Court which apparently was available.

Justice William J. Brennan: That is in the habeas corpus?

Mr. Daniel J. O'hern: Yes.

He wanted counsel, and of course he wanted the right to appeal.

Now, I always thought or at least it seemed to me the most striking difference between the procedures available was the letter which was sent back to him by the clerk of the United States Court of Appeals after that court had denied his right to the relief requested, she wrote back and said “By order of October 4, 1965, the court denied your motion for reconsideration.”

He had filed a motion for reconsideration, and said “You may choose either of the following alternatives.

One, send this office the clerk's fee of $25 together with four copies of the motion to docket the appeal and file the record out of time, or two, petition” --

Justice William J. Brennan: May I ask why in addition to denying leave to appeal in form of paupers, was there a formal order would you think that docket the appeal?

Mr. Daniel J. O'hern: Yes, that's right Mr. Justice.

Justice William J. Brennan: Not withstanding the other standards except for the probable cause?

Mr. Daniel J. O'hern: Yes.

Or petition the Supreme Court of the United States for a writ of certiorari.

Now he chose the second alternative whether because he didn't have the $25 or not we don't know.

But the point is that he couldn't get into the Court of Appeals without paying the $25.

If he'd had the $25 they would've accepted his motion to docket the appeal out of time, and then of course he would be authorized to proceed himself I take it.

Justice William J. Brennan: Well I take it if you're right here, all that required of us is to direct the Court of Appeals to docket his appeal and proceed at it, is that it?

Mr. Daniel J. O'hern: Well that would be one way of doing it Mr. Justice, but I personally feel that the issue here is somewhat broader than that.

I think there is an important question here with respect to the procedures to be followed in general by the Courts of Appeal in such cases.

I think that this Court has decided in the collateral attack field just recently this term after my brief had been filed in Long against Iowa.

That on an appeal in a collateral attack case on state court, the petitioner or the person seeking the relief is entitled to a transcript of the record.

And I think implied in that decision is the holding that also counsel would be required in collateral attack cases on appeal.

Now, we're over now to the second step that is the federal collateral attack proceeding after a petitioner has exhausted all of his proceedings in the state courts then he's entitled to go into the Federal District Court.

And the practice generally appears to be to assign counsel, although the lower court cases say that there is not a right to counsel in habeas corpus cases because they say it is a civil proceeding.

But the practice generally is to appoint counsel.

So then the case comes on for appeal and the Third Circuit I take it, examine the papers and concluded that there was not a meritorious question.

And I think what they did was to shortcut the procedure of the statute.

Statute says that if the trial court certifies the appeals taken in good faith then it should be allowed.

Now it has been suggested that perhaps if the courts were cynical, they would docket the appeals and then dismiss them, but I think then they would be stuck with their own procedures.

The Third Circuit for example, requires that a motion to dismiss an appeal must be served five days than others and the briefs are allowed and usually counsel argue in the Third Circuit on a motion to dismiss an appeal.

And I think there's another value to that because once you get to that point in a proceeding, the burden of proof on the party seeking to dismiss the appeal would be of course on the moving part.

Now I think that the Court of Appeals for the Third Circuit in this case has almost said that the appellant has the burden of showing that there is some merit to his client.

Justice William J. Brennan: Even though he has the certificate of probable cause and the district judge who heard the case denied him relief but said nevertheless he has a non-frivolous claim, is that you --

Mr. Daniel J. O'hern: That is what the District Court found.

I think that some of the members of this Court have said in cases where a district judge in direct appeal in a federal criminal case, has issued that certificate of probable cause then that the Court of Appeals automatically to docket the appeal and assign counsel to the appellant.

Now, I recognized that we are one step removed, but I suggest to the Court that the procedure followed by the Third Circuit is going to lead to the problems which this Court has seen in the direct appeal cases.

I think you're going to eventually have to conclude that where a man contests this certificate of the district judge he should be entitled to counsel to assist him in contesting the certificate.

That was decided here in Ellis or Johnson, I'm not sure exactly which one, but either one of those cases this Court decided that the district judge's finding is not conclusive of the issue of probable cause or a good faith.

Justice Potter Stewart: Was one of those cases a habeas corpus case?

Mr. Daniel J. O'hern: No, those were both direct appeals Mr. Justice Stewart.

Justice Potter Stewart: That's what I thought.

And you don't need a certificate of probable cause to appeal in a direct appeal do you?

Mr. Daniel J. O'hern: To get an indigent's appeal, you need a certificate of probable cause.

Justice Byron R. White: Under what section?

Justice Potter Stewart: 28 U.S. Code, Section 1915.

You see the rules Mr. Justice, require a -- the clerks are very human people and they operate under statutes, so they'd say “You can not docket an appeal unless you have a $25 filing fee, unless the court orders the appeal to be docketed without the prepayment of the $25.”

Justice Byron R. White: You say 1915 provides for certificate of probable cause and --

Justice Potter Stewart: It's not a certificate of probable cause, is it?

Mr. Daniel J. O'hern: No, that's why --

Justice Potter Stewart: It's a --

Mr. Daniel J. O'hern: it's been interpreted that way.

Justice Potter Stewart: But that it's taken in good faith.

Mr. Daniel J. O'hern: Yes.

Justice Potter Stewart: It's different language.

Justice Byron R. White: Well if it's going to say that whatever -- I thought the amicus is certificate of probable cause in this case was because of 2253?

Justice Potter Stewart: That's right.

Mr. Daniel J. O'hern: No, I don't think so.

Justice Byron R. White: 2253 says in circuit cases just like this you can't take an appeal whether informal or not without a certificate of probable cause, because of a state case that -- and it's a state -- this for habeas corpus where it follows in custody by the state.

Now let's assume for the moment that this is not been an informal case, there still would've have to find probable cause.

Now let's assume that it's been a federal prisoner asking for -- wanting to file a habeas corpus and it was informal would there be -- there wouldn't be any need of certificate of probable cause or a certificate of good faith.

Mr. Daniel J. O'hern: Well I think there is Mr. Justice --

Justice Byron R. White: Well why -- where are the cases to say that?

Mr. Daniel J. O'hern: Well that's the way the statute reads.

You see, 20 U.S.--

Justice Byron R. White: Well it said -- 1915 says an appeal may not be taken in form of paupers if the trial court certified in writing and it would not taken him to stay.

That's why it's in this Section isn't it?

Mr. Daniel J. O'hern: That's right, but it has --

Justice Byron R. White: Well I know but -- if there's -- he doesn't have to certify that it isn't good faith.

Mr. Daniel J. O'hern: Well in fact the issue what is -- it amounts to the certificate of probable cause and in Ellis --

Justice Byron R. White: I just thought you say that is the practice in federal cases, for a federal prisoner?

Mr. Daniel J. O'hern: I -- that's my understanding, the practice Mr. Justice.

I couldn't say that is entirely true, but I understand that is the practice.

The reason is I think because of the statutes requiring the payment of fees in docketing of appeals.

You simply can not docket an appeal whether or not the appeal may be taken under 2253, I think it's a somewhat different question.

Justice Byron R. White: Well I just -- all I say is I just don't claim any requirement in 1915 where there is a probable cause and that as long as there's a -- as long as you can establish that he's indigent, and the trial judge doesn't say that there's bad faith here, there's no title to an appeal.

Mr. Daniel J. O'hern: Well I think, you know, I'd like to agree with you.

I think that's absolutely right, but I don't think that's the way the Courts of Appeal and the clerks of the Courts of Appeal --

Justice Byron R. White: Well this is about the case that tested out because there was a certificate of probable cause --

Mr. Daniel J. O'hern: That's right.

Justice Byron R. White: -- under 2253.

Mr. Daniel J. O'hern: That's right Mr. Justice.

I think -- surely I think in this case where the certificate of good faith or probable cause has been issued.

Then I think the Courts of Appeal should as a matter of right docket the appeals.

I think they should assigned counsel before --

Justice William J. Brennan: Or evading, Mr. O'Hern, do you need to go beyond that in this case?

You have a certificate of probable cause with the district judge, and looking at the statute, do you need go beyond suggesting that the statute has to be read in this circumstance with a certificate of probable cause.

The Court of Appeals has no choice but to hear his appeal.

Certainly docket his appeal, come in and proceed in the form of paupers, and you suggest also to assign counsel?

Mr. Daniel J. O'hern: I suggest that.

I think Your Honor that -- I think the Court of Appeals should surely do the lesser that is they should permit the man to docket his appeal.

Justice William J. Brennan: Actually, isn't your position is that a matter of permitting him --

Mr. Daniel J. O'hern: He --

Justice William J. Brennan: -- that that's not --

Mr. Daniel J. O'hern: -- matter of right.

Justice William J. Brennan: -- as a -- since he has a certificate of probable cause, the Court of Appeals must allow him of right to docket his appeal.

Mr. Daniel J. O'hern: Of course the only problem is then that with that is subsection (d) which provides that the courts may dismiss the case if satisfied that the action is frivolous or malicious.

Now it doesn't say at what stage it may do that, and I take it that the Court of Appeals interprets that as allowing or authorizing it to dismiss the appeal or to deny the application for leave to appeal in the form of paupers.

Justice William J. Brennan: But as I understand this record that doesn't appear that the Court of Appeals ever heard of this case, never got beyond the clerk's office.

Mr. Daniel J. O'hern: That's what would appear from the bearer record Mr. Justice.

Justice William J. Brennan: Well how do we know that --

Mr. Daniel J. O'hern: We don't know.

Justice William J. Brennan: -- that with any determination that it was frivolous in the merit?

Mr. Daniel J. O'hern: We do know that there was certified to this Court a very extensive record.

How many of the judges of the Courts of Appeal read it, we don't know.

I would like to give the benefit of the doubt to the Court of Appeals and assume that they examined the papers because on the face of the papers, there was raised a constitutional question with respect to the effectiveness of the counsel which have or who had been assigned to the indigent in the state court proceedings.

One of the problems I think is that if this Court simply decides that a man is entitled to have the appeal docketed, the appeal will be docketed if that is the decision of this Court.

And then the district attorney for Erie County, I would assume, would move to dismiss the appeal and he would file a brief and he would go down perhaps to Philadelphia and argue it, or he might not even have to do that.

If the petitioner is without counsel, or without the tools with which to properly meet this argument then I don't think he really has had his day in court.

I think the real question in this case is whether the man is going to get one full and fair federal appeal, one full day in court.

Now --

Justice Abe Fortas: Mr. O'Hern, do you know whether any representations are made to the court prior to the entry of Judge Biggs, Chief Judge Biggs' order on 835 of the record.

What happened here as I understand it is that the petitioner applied for leave to proceed in the form of paupers, and then the Court of Appeals in this order signed by Judge Biggs denied leave to appeal in the form of paupers.

And then the clerk's letter to which you refer were as followed as a matter of course after that.

That is the clerk had -- there's one thing the clerk could do except to say courts denied to leave file in the form of paupers so if you want to file, you got to pay the usual fee, is that right?

Mr. Daniel J. O'hern: That's right.

Justice Abe Fortas: So was any representations made that Judge Biggs said this fellow is not a pauper or something like that that you know of?

Mr. Daniel J. O'hern: That's my knowledge, I think that's conceded Mr. Justice.

Justice Abe Fortas: That he was a --

Mr. Daniel J. O'hern: Pauper.

Justice Abe Fortas: -- that there's no issue here.This surprise me a bit, the application for leave seems a form of paupers is filed July 16, was it?

Mr. Daniel J. O'hern: Yes sir.

Justice Abe Fortas: And Judge Biggs' order is entered in July 27, and there's no indication of why he entered the order.

No indication that any state -- that any thing is filed by the state's attorney in our position or what not, is there?

Mr. Daniel J. O'hern: Apparently not, but while I can't speak for the Court of Appeals, I would be inclined to think that the practice is to have at least one member of the panel examine the papers, the record which as I say was certified to this Court included the opinion of Judge Marsh from the western district and of course included the transcript of the hearing which is illuminating but is not entirely dispositive of the issue.

Justice Abe Fortas: So we must -- I suppose that would be testified here in assuming that the Court of Appeals has disagreed with the District Court with respect to the nature of characters substantiality of the appeal.

Mr. Daniel J. O'hern: That's what I take would be fact.

Justice Abe Fortas: And the facts of the issue before us.

Now do you also think that we have before us the question of the counsel?

Mr. Daniel J. O'hern: I do Mr. Justice.

I don't think the question is whether the Court of Appeals disagreed with the district judge.

I think the question is whether once the district judge has made that certification that as a matter of right, the petitioner's entitled to proceed.

Justice Abe Fortas: Yes.

Justice Potter Stewart: Well that under 2253 that certificate of probable cause to appeal as required quite regardless of the indigency of the petitioner isn't it?

Mr. Daniel J. O'hern: I'll tell you frankly Mr. Justice, I'm not entirely sure if it's no.

Justice Potter Stewart: Well then it says so?

Mr. Daniel J. O'hern: It appears to say --

Justice Potter Stewart: Or my mistake, it has nothing to do -- that provision of the code has nothing to do with form of paupers bail none does it?

Mr. Daniel J. O'hern: Right.

Justice Potter Stewart: Has to do with the merits of the appeal, and it's equally applicable to a millionaire and to a pauper.

Mr. Daniel J. O'hern: Except for one thing.

Justice Potter Stewart: Is that correct?

Mr. Daniel J. O'hern: Yes.

Justice Potter Stewart: I haven't got it before me but that's my recollection.

Mr. Daniel J. O'hern: Yes that's right.

Justice Potter Stewart: Yes.

Mr. Daniel J. O'hern: But if the district judge had for example denied the certificate then the same question is presented as to whether in appealing from the denial of that certificate, counsel should be allowed to the applicant for the writ of habeas corpus.

Justice Potter Stewart: And it was in the denial on the certificate, and you don't have that case.

Mr. Daniel J. O'hern: No, that's -- there was not.

This is an easier case.

Justice Byron R. White: Of course he doesn't even need to appeal from it, all it need to do is ask the Court of Appeals for the certificate of probable cause which isn't necessarily on appeal.

Mr. Daniel J. O'hern: That's correct Mr. Justice.

Justice Byron R. White: And he can ask a circuit justice for it, I suppose?

Mr. Daniel J. O'hern: He could.

Chief Justice Earl Warren: We'll recess now.

Continue your argument.

Mr. Daniel J. O'hern: Mr. Chief Justice, and may it please the Court.

I don't want to belabor this point, but I would like to go back to the question which I think Mr. Justice White put whether it's 2253 of Title 28 that were concerned with or 28 U.S. Code, Section 1915.

And perhaps I have confused the Court somewhat by treating this as an appeal as a matter of right, which in my opinion it is.

But I think you must consider the what we call the fees and cost section of 28 Section -- beginning at Section 1911, and it says “The fees and cost to be charged and collected in each Court of Appeals shall be proscribed from time to time by the judicial conference.”

And then Rule 21 of the Court of Appeals for the Third Circuit rules provides that the appellant or petitioner shall before the docketing of the case pay the docketing fee, but this payment shall not be required by the United States when a party or of the appellant or petitioner in a case authorized to be prosecuted without prepayment of costs.

And the only provision for prosecution of the case without prepayment of cost is in 28 U.S. Code, Section 1915.

So that although 2253 is an initial step, I think in this case will pass that and although it appears to be an appeal of right, it's not an appeal of right if Nowakowski had had the money he could've had an appeal of right of course.

Justice Byron R. White: Well he can appeal his right if he's a pauper.

Mr. Daniel J. O'hern: Well it depends on how you interpret 28 U.S. Code, Section 1915.

Justice Byron R. White: How would you interpret it?

Mr. Daniel J. O'hern: Well I would like it to be interpreted in this fashion.

That where the moving papers themselves present an issue which is not on its face frivolous and it's hard for me to think of papers would present a truly frivolous issue.

Justice Byron R. White: Well you couldn't call it frivolous, could you, if a party who is paying had a particular probable cause, he may have his case docketed.

Mr. Daniel J. O'hern: If he pays the fee, yes Mr. Justice.

Justice Byron R. White: Well why shouldn't he pay --

Mr. Daniel J. O'hern: I suggest that it should.

I suggest that it should, but I would also suggest that the Court should take it one step further and the Court should assign counsel to the indigent to prosecute his appeal.

I think it's a rather hollow right if we simply say that he has a right to appeal.

He takes the case up to the Court of Appeals, but if he does not have a lawyer and if there were not a transcript available from the habeas corpus proceedings then I think it is a rather whole right.

Justice William J. Brennan: Mr. O'hern, but if you prevail and the district -- the Court of Appeals has directed to docket the appeal as an informal paupers appeal, don't you suppose the Third Circuit on the prisoner's application would assign counsel without our telling him that --

Mr. Daniel J. O'hern: I would be inclined to think that is the practice in the Third Circuit, I notice --

Justice William J. Brennan: Should we reach the question whether constitutionally there's any compulsion on the Third Circuit to assign that if at least until we know that they will not assign it?

Mr. Daniel J. O'hern: Well of course one of the applications in this case Mr. Justice was for the assignment of counsel.

That was on the --

Justice William J. Brennan: Whether the application was?

Mr. Daniel J. O'hern: Yes, on his second petition for a -- he filed actually two pleadings in the Court of Appeals and one of them was a request for the assignment of counsel.

That was also denied together with --

Chief Justice Earl Warren: Didn't' make an affidavit of poverty?

Mr. Daniel J. O'hern: He did file that Mr. Chief Justice.

Chief Justice Earl Warren: He did file such an affidavit.

Mr. Daniel J. O'hern: He did, that's correct.

Now I have perhaps with good reason avoided discussion of the merits in this case.

It's not a very great case from the viewpoint of the issues involved.

The small amount of money was taken from the tavern out in Erie, Pennsylvania.

It struck me the facts in this case very much similar to those in Gideon and Wainwright.

The contents of a -- I think it was the pool hall there, and here it's a tavern and a couple of machines were broken into.

And it doesn't seem like much but if in my opinion, the district or the trial judge had excluded the evidence of the accomplice and excluded the evidence of the offer of a compromise.

I really don't think there was any evidence of guilt at all.

And then that case I think the petitioner should've been entitled to a directed verdict because there was no positive proof of the commission of the crime.

So that I don't think that this is a hallow case in any sense of the word.

I think the petitioner does have the meritorious claim even if this Court should decide that the Courts of Appeal have discretion to pass on those issues of frivolity.

I think they were not frivolous presented in this case.

Mr. Chief Justice, I'd like to reserve a few minutes of my time.

Chief Justice Earl Warren: You may Mr. O'Hern.

Mr. Pfadt.

At the outset Mr. Pfadt, may I ask you if we may or may not consider this man as an indigent for the purposes of this case?

Argument of William E. Pfadt

Mr. William E. Pfadt: I think it's conceded Your Honor.

For the record, if it please the Court, I would like to clear up certain misconceptions based or caused mainly by inadequate record I believe.

The action before the Court of Appeals was instituted by Mr. Nowakowski filing a three-part petition, one in which he asked to proceed in form of paupers.

The second in which he asked for the right to be represented by counsel to be court appointed, and the third in which he set out the merits of his appeal.

And the question has arisen whether or not this matter was docketed.

It was docketed.

It did go beyond the courts and the clerk's office and it reached Justice Biggs' hands and he made the decision.

Overall on the three parts in which the petition was denied without specifically saying this part one is denied or part two or part three, the entire petition was denied.

Justice William J. Brennan: Well where does Judge Biggs gets the power to do that?

Mr. William E. Pfadt: Under Section 1915 I --

Justice William J. Brennan: Where?

Mr. William E. Pfadt: Under Section 28-1915, the Court may dismiss the case --

Justice William J. Brennan: Well he isn't.

Mr. William E. Pfadt: -- if the allegation of poverty is untrue or have satisfied that the action is frivolous or malicious.

Justice William J. Brennan: Well he isn't the Court is he?

Mr. William E. Pfadt: Pardon?

Justice William J. Brennan: He isn't the Court is he?

He's only a member of the Court is he, even though the chief judge.

He's only a single member of the Court and nothing in that statute says that single members of Court of Appeals could be --

Mr. William E. Pfadt: Well, it was my understanding that he was acting on behalf of the Court.

Justice William J. Brennan: How can he?

Justice Abe Fortas: It says in page 135 of the record it says “Present Biggs, Plager and Freidman.

Mr. William E. Pfadt: He was on behalf of the Court, I'm sorry.

Justice William J. Brennan: But one of the panel of the Court.

Mr. William E. Pfadt: Yes I'm sorry.

Justice William J. Brennan: Yes that's what I --

Mr. William E. Pfadt: I didn't understand what you meant Your Honor.

Justice William J. Brennan: Yes.

Mr. William E. Pfadt: So that there was this action and it wasn't a bare application which reached the clerk's office and was sent back because the fees, the filing fees were not advanced to the extent that the petition itself set out the petitioner's case in the three regards.

It was considered by the Court and the petition was denied.

I would like to point out for the Court, and this is apart from argument that this matter involved in this case against Mr. Nowakowski was a matter in which the minimum of three to seven years had expired in 1962.

He was paroled on this charge in June of 1964 and began to serve a subsequent sentence which was imposed on a prison breach charge and the maximum sentence on this burglary conviction that is the subject of this appeal expired in December of 1966.

Mr. Nowakowski at the present time serving a four to ten year sentence on prison breach which began in 1964 when he was paroled and subsequently he is faced with service of two and half to five years on account of an assault by a prisoner charge, where he assaulted an employee of the Western Penitentiary in Pennsylvania.

I point that out to the Court for the reason that the matter involved -- the sentence involved in this particular case in which the trial and counsel at the trial of the burglary conviction is the subject matter of, basically of the petition for writ of habeas corpus.

The minimum -- the actual time served has expired and the maximum time has expired.

I don't mean that that creates an insuperable problem but it is something I think that the Court would be interested in and should know.

Justice Hugo L. Black: For what reason?

Mr. William E. Pfadt: Because the actual sentence in regard to -- if the Court should decide that this man is entitled to a hearing before the Third Circuit and referring it back to the Third Circuit that there's no doubt that the Third Circuit could hear it, but whether or not eventually a new trial would be allowed after service of the complete time or expiration of complete time.

I don't know what the consequence or what the workings there may be.

Justice William J. Brennan: Well I take it you point is that since federal habeas looks to the least, if he served complete sentence and he's not been released since then, is that it?

Mr. William E. Pfadt: There's nothing in this particular charge to release him from, because he's serving on a --

Justice William J. Brennan: Well does this -- does the conviction on this charge have any bearing of the recidivism to the like and the punishments he's got in this sentences he's now serving?

Mr. William E. Pfadt: None Your Honor.

Justice William J. Brennan: None whatever.

Chief Justice Earl Warren: But in another state?

Justice William J. Brennan: No, they were committed in Pennsylvania.

Chief Justice Earl Warren: I beg your pardon?

Justice William J. Brennan: I didn't understand you question Your Honor.

Chief Justice Earl Warren: Could this be used against him in a recidivous charge in another state?

Justice William J. Brennan: Possibly in another state, not in Pennsylvania.

Justice Potter Stewart: All these -- these all goes to the merits of the habeas corpus appeal in the Third Circuit, doesn't it?

Justice William J. Brennan: That's correct.

Justice Potter Stewart: Doesn't go to the issues now before us really, doesn't it?

Justice William J. Brennan: No, that's correct.

I didn't mean them to in this argument either.

Justice Potter Stewart: No I didn't mean to --

Mr. William E. Pfadt: I just want to point out that there is that situation existing.

Justice Potter Stewart: Suggesting that he may not have a merit --

Mr. William E. Pfadt: That's right.

Like Mr. O'Hern, I believe that the issue here is a narrow one.

I think that the issue is under 28 Section 1915 where the Circuit Court of Appeals may dismiss an indigent's appeal if they're satisfied if the action is frivolous or malicious.

Justice Hugo L. Black: Was it done on that ground?

Mr. William E. Pfadt: Without specifically saying why it was done, we -- there was no reason given Your Honor.

We assume that because it was done that it had to be done on one or the other -- from or the other reasons.

Justice Hugo L. Black: Or might not be done at all.

Mr. William E. Pfadt: It's true it may not have been done at all, but the action of Justice Biggs or the Circuit Court of Appeals in which the appeal is dismissed in order to justify it without looking to any wording in the opinion it would have to be done on the basis of some provision of Section 1915.

Justice Hugo L. Black: Should that be done if you didn't say it was.

If there's nothing in the record that indicates that it was dismissed under the 1915, why should've it been dismissed at all, or why should we hold it if it's dismissed on that one?

Mr. William E. Pfadt: Well I believe that the basis for dismissing without knowing the basis for dismissing, without knowing what they may be in the particular case would have to be assumed to have been done properly under this Section.

Justice Byron R. White: In what respect under this Section?

You mean just denying permission to proceed in form of paupers?

Mr. William E. Pfadt: Denial of the entire petition Your Honor which included in form of paupers counsel and the --

Justice Byron R. White: No but counsel --

Mr. William E. Pfadt: -- the merits of the appeal.

Justice Byron R. White: Well didn't he also move for a transcript?

Mr. William E. Pfadt: No.

His petition was in three parts Your Honor, in form -- petition to proceed in form of paupers, appointment of --

Justice Byron R. White: How about page 136, petition for records and documents in form of pauper?

Petitioner contends he needs a transcript thinking his hearing in the District Court.

And there's a denial of that motion.

Mr. William E. Pfadt: That's true Your Honor, but as later -- as the petition states later, there are other reasons given in the bear.

Justice Byron R. White: Well that may be so, but they did -- he did ask for a transcript and it was denied, along with counsel.

Mr. William E. Pfadt: Considering part of his petition, the petition was denied there's no question, but that wasn't the only point of his petition.

He actually was -- had set forth his entire appeal.

Justice Byron R. White: What do you think the Court's grounds were for denying this petition with all of his grounds, whatever they were?

Mr. William E. Pfadt: I believe that assuming that the Court's actions were according to statutory authority that the Court dismissed on the basis of frivolity.

Justice Byron R. White: So it passed on the merits?

Mr. William E. Pfadt: To the extent that they could determine from the record presented to them that this appeal was frivolous.

Justice Byron R. White: So you don't contend that the Court denied because any doubt of being a pauper or anything like that?

Mr. William E. Pfadt: No, I do not believe so Your Honor.

Justice Byron R. White: And that you think they've got appointed counsel said he thought the merits were not frivolous.

Mr. William E. Pfadt: I believe sir.

I believe that they would have.

Justice Byron R. White: So it comes down to frivolity and whether the court sitting without a record, without counsel, without argument or without briefs can dismiss it as frivolous?

Mr. William E. Pfadt: Can do that yes.

I think that that's the question, the narrow question involved and I think that the argument of petitioner is that there is discrimination on account of an indigent defendant because the Court, under Section 1915 may dismiss for -- on the basis of frivolity sake.

Whereas, in the case of paid counsel, the petitioner would have the opportunity to have briefs presented and argument and at least a motion by someone to dismiss before he were denied his appeal.

And I think that's the narrow question whether there is -- whether that difference in treatment of indigent defendants and treatment of defendants with paid counsel constitutes a constitutional discrimination against indigent defendants.

If I may, my answer to that is that it is a difference, certainly, indigent defendants are handled differently -- the petitions of indigent defendants are handled differently than are the petitions of defendants with paid counsel, but I don't believe that there's discrimination.

I don't believe the difference means discrimination.

My reason for that is that I think that the Court of Appeals and there are cases cited in the brief which point out that the Court of Appeals may dismiss on motion an appeal.

It may request in fact if they believe there's frivolity in the appeal, may request that the -- that a motion be filed which has been done in certain Courts of Appeals.

So that the end result is that the defendant with paid counsel may find themselves in the very position that an indigent defendant finds himself when he isn't represented in argument and by filing a briefs before the Court.

Justice Byron R. White: Let me just make sure I understand.

Do you say that a paid fellow who hired his own lawyer and is paying it can have his petition for habeas corpus dismissed for the trial judge and then the trial judge issue a certificate of probable cause, and then have -- and he hire his own counsel for the appeal.

And you say he can have his -- the same thing happen to him has happened to this man in the Court of Appeals without ever a brief or an argument?

Mr. William E. Pfadt: It is possible Your Honor, I believe yes.

Justice Byron R. White: In spite of the fact --

Mr. William E. Pfadt: It wouldn't happen in the same way --

Justice Byron R. White: In spite of the fact that 2253 provides for certificate of probable cause either from the trial court or from the Court of Appeals.

Mr. William E. Pfadt: Well I don't know this 2253 enters into this part of it.

I say that in regard to with defendant with a paid attorney, he may be able to file briefs.

He may be allowed some extra proceedings, but the end result without ever --

Justice William J. Brennan: Well they're rather important extra proceedings aren't they?

You say that --

Mr. William E. Pfadt: Well they aren't necessary because --

Justice William J. Brennan: He can answer a motion to dismiss.

He can file a brief in support of an argument, rather should not be a dismissal.

The judges at least have to read it if they don't hear oral argument that this indigent gets nothing like that.

Mr. William E. Pfadt: Your Honor, I agree that the opportunity is greater in the case of a paid attorney for --

Justice William J. Brennan: Well but its purpose is rather important one.

Mr. William E. Pfadt: It is very important.

I meant to say that the end result without ever --a review could be reached by the Court of Appeals acting within the scope of their authority.

Without ever having a hearing, without briefs being submitted, the Court on motion could dismiss.

Justice William J. Brennan: Well on motion, there wasn't any motion here was it?

Mr. William E. Pfadt: No, there can't be because there's no one on the other side at this point Your Honor, I agree.

I say that in the case of a paid counsel for a defendant, you may have the same result, because on motion of the attorney for the respondent that the case be dismissed because of not say frivolity.

The Court could make an order and the defendant in that case, even with his paid counsel, would be in exactly the same position as this indigent have been of this here.

Chief Justice Earl Warren: But either have the right to argue the motion wouldn't he?

Mr. William E. Pfadt: To that extent, yes.

Chief Justice Earl Warren: Yes.

Mr. William E. Pfadt: There are differences -- I don't mean to say and there are important differences as Justice Brennan points out.

But I say that because there are those differences, doesn't mean that there's discrimination against an indigent defendant on account of his indigency.

Chief Justice Earl Warren: May I --

Chief Justice Earl Warren: May ask?

Justice William J. Brennan: -- excuse me.

Chief Justice Earl Warren: May I ask if this petition was filed pro se or was it filed by a lawyer?

Mr. William E. Pfadt: It was filed pro se.

Your Honor, if the record will disclose that a Mr. Stooks of Pittsburgh had represented the defendant in his argument before the District Court evidentiary hearing.

Justice Tom C. Clark: And the District Court relieved him of that post?

Mr. William E. Pfadt: Yes, and the District Court have ruled and the attorney had filed the appeal for this defendant, but then asked to be excused before the -- before any further proceedings --

Justice Tom C. Clark: When you say appeal, the notice appeal?

Mr. William E. Pfadt: Yes had filed notice, excuse me.

And was excuse by the Court before any proceedings before the Court of Appeals.

Justice William J. Brennan: May I ask this, what he filed was petition, was any notice by any one given to the state of his filing?

Mr. William E. Pfadt: To the circuit court?

Justice William J. Brennan: Yes, when he filed to the circuit court.

Mr. William E. Pfadt: There was no notice that I know.

Justice William J. Brennan: What ordinarily happens?

Let's say he had paid counsel who had filed an appeal in the Court of Appeals with the statement of probable cause based on the trial judge's denial of writ of habeas corpus.

Now, what ordinarily happens if an appeal taken from that denial and of course the stage is for the warden which I guess it's the warden isn't it?

Mr. William E. Pfadt: Yes, the warden.

Justice William J. Brennan: Is the respondent on the appeal.

Now who, under the rules, who has the duty of notifying the warden, the clerk after docketing or the appellant?

Mr. William E. Pfadt: I think that the appellant has to notify the respondent who would be the warden on this one.

Justice William J. Brennan: And then I take it there's an affidavit or something of service for the respondent?

Mr. William E. Pfadt: That's correct.

Justice William J. Brennan: Nothing like that was before this panel of the Court of Appeals at the time it took its action with it?

Mr. William E. Pfadt: Your Honor, not that I know of.

The record certainly does not disclose that.

Justice William J. Brennan: I just wanted to know how we can say this was a docketed appeal in those circumstances.

Mr. William E. Pfadt: I only -- perhaps I'm mistaken, but I was under the impression that if the Court, the circuit court, had considered this matter and Justice Biggs had issued an order that it would be a docketed matter.

Justice William J. Brennan: Well that suggests then that without the respondent ever hearing about it, the Court of Appeals can throw out an appeal if it thinks that the face of the papers if was decided.

Mr. William E. Pfadt: Again, because of the -- I'm not sure that such a notice was ever given.

We have no record of it, but we are in the manner of --

Justice William J. Brennan: Well do you think the Court of Appeals could in that circumstance, an appellant files whether he has paid counsel or not, I gather your argument is that at least power whether it derives from 1915 or that of other statutes, power in the Court of Appeals, sua sponte with the respondent never having even heard that the appeal was pending to examine the papers and enter an order of dismissal without hearing the appellant for notice of respondent and otherwise.

I gather you get that?

Mr. William E. Pfadt: I think that yes, I think that 1915 gives at par.

Justice William J. Brennan: My, oh my, what did Congress said it would.

Chief Justice Earl Warren: Is this a normal procedure as to indigents in the Third Circuit, or this case just as forwarded?

Mr. William E. Pfadt: I think that the Third Circuit has a record, Your Honor, providing counsel of giving hearings.

I think that this is somewhat the unusual.

If I may, much was said about the certificate probable cause and its function.

Under 2253, where certificate of probable cause is made a requirement of appeal, there are cases which hold that that certificate of probable cause standing on its own does not mean anything as to the merits of the case, as to -- as it's not binding in anyway on the Court of Appeals.

Justice William J. Brennan: It's only a ticket of entry --

Mr. William E. Pfadt: It provides -- that's right it's a requirement, and there are cases which hold that the certificate of probable cause actually is nothing more than that the trial judge believes that the person asking for this is sincere.

He may not agree with him and obviously he doesn't agree with him because he just ruled against him.

But if he believes that he has a sincere argument and without regard to the merits, then he will grant certificate of probable cause which was done here, because Judge Marsh who was the district judge presiding at the evidentiary hearing was the one who granted the certificate of probable cause within days after he had made the order denying this man his writ.

To go back to what I said, I believe that it's the narrow point here.

Does Section 1915 create a situation where an indigent defendant is discriminated against because of the procedure set out in that Section, as opposed to what a defendant with paid counsel may be entitled to under his general rights to appeal in the procedures in the Court of Appeals?

I say that in answer to that, my answer to the problem is that acknowledge there are differences but denied that there are discriminatory differences.

Chief Justice Earl Warren: Mr. O'Hern.

Rebuttal of Daniel J. O'hern

Mr. Daniel J. O'hern: Mr. Chief Justice, and may it please the Court.

The only comment I wanted to make was with respect to your question of whether this case represents a supporting a law, the respondent filed that a brief at pages 8 and 9 of which there are a number of cases which contain language to the effect that the Courts of Appeal have discretion with respect to these pauper appeals.

And I think that is, from my reading of the cases, the prevailing opinion in the Circuit Courts of Appeal that they have a discretion under 28 U.S. Code, Section 1915 to deny the leave to appeal in form of paupers if they are satisfied that the issues are frivolous.

I think if you analogize it to the direct appeal cases, I think they are reading the same type of thinking into these collateral attack appeals, and putting this issue of frivolity to themselves as a matter of initial determination.

And then once they reach that conclusion and they say that we have this discretion to deny the leave to appeal in form of paupers, and that carries with it everything, then the application for counsel, the application for the transcript and whatever other assistance the petitioner or the pauper needs to make a worthwhile appeal are denied to him.

Now I think that is the kind of invalid discrimination that this Court has struck down in the past.

Featured:

Coppedge v. United States - Oral Argument, Part 1

Tue, 25 Sep 2012 22:33:26 +0000

Case:

Coppedge v. United States

Media File:

157_19611212-argument-1

Related Transcript:

157_19611212-argument-1

Transcript:

Argument of Bennett Boskey

Chief Justice Earl Warren: Number 157, Mark Coppedge, Jr., Petitioner versus United States.

Mr. Boskey.

Mr. Bennett Boskey: Mr. Chief Justice, may it please the Court.

The group of contempt cases which the Court has been hearing during the past few days has dealt with a rather broad range of subjects on the Federal Criminal Law and its relationship to the constitution of the United States.

The case to which we now task Coppedge against the United States deals with many other aspect of the relationship between the Federal Criminal Law and the constitution.

And the range of the subject is broad and the subjects are important.

The subjects include the very difficult and perplexing problem of the administration of justice in in forma pauperis cases in the federal court and the assurance that equal justice on the law shall be rendered to the poor as well as to the rich.

It includes problems as to the responsibilities of the grand jury of the Court of the prosecutor.

It includes questions of evidence and charges to the jury.

It includes questions of prejudicial summation as the petitioner view with the case.

Now, as the governor -- Government views the case according to its brief in this Court, all of the petitioner's contentions are frivolous.

The Government says this in 53 pages of its preventive brief.

For this reason, I should like just to pause a moment on the procedure which is taken place in the efforts of this petitioner to obtain an appellant review on the merits.

And then I shall test to the subsequent questions involved in the case.

The case involved in attempt by this petitioner to obtain a direct appellant review from a criminal conviction in the Court of -- in the District of -- Columbia District Court.

Petitioner was convicted of charges of attempting to utter -- uttering and transporting an interstate commerce, three separate forged money orders which had been stolen shortly before they were used in the manner charged in this case.

This in fact was not his first trial but his second.

His conviction at the first trial having been reversed by the Court of Appeals of the District of Columbia Circuit because prejudicial newspaper articles had appeared during the course of the trial and because the Court of Appeals felt that Judge Holtzoff, who had acted as the trial Judge in the first trial of the case, had not taken sufficient steps to assure that the prejudice would not affect deliberations of the jury.

When the case was remanded, it was tried again.

And at the second trial, petitioner was represented by court appointed counsel.

After the jury's verdict was brought in and a verdict to guilty on count three through 10, the petitioner having been acquitted by the jury on the so-called housebreaking and blartney charge.

After the verdict was brought in, petitioner was sentenced by Judge Holtzoff and then he sought in the usual course to take an appeal in forma pauperis stating an indigent.

Judge Holtzoff denied his application to appeal in forma pauperis and in addition certified that the appeal was frivolous and not taken in good faith.

This, as I am sure, the Court knows from other cases which have come to you from the District of Columbia Circuit, is something which happens over and over again in the District Court in the District of Columbia and as happens almost in all of these cases.

The petitioner here --

Justice William J. Brennan: Mr. Boskey.

Mr. Bennett Boskey: Yes, Mr. Justice Brennan.

Justice William J. Brennan: Did the court appointed counsel at that play by any part?

Mr. Bennett Boskey: Mr. Justice Brennan has now -- the court appointed counsel with relieved of his appointment by the Court and from the date on which he was relieved, it might not the 100% certain whether he did or did not play any part in the attempt to get an appeal allowed by Judge Holtzoff.

There is nothing in the record which would suggest that he provided any subsequent help to the petitioner in the --

Justice Felix Frankfurter: I wonder about the application of Judge Holtzoff believe to appeal.

Mr. Bennett Boskey: That looks as though would entirely approach the operation although one cannot be quite that sure.

In any of them, counsel did obtain from Judge Holtzoff an order relieving on of his first (Inaudible) from the case.

And I -- this certainly is not in criticism of counsel because this is the custom or has been until about a month ago in the District of Columbia.

There is some implication that with the legal aid agency which Congress created beginning to get the work in this area that more encouraged than to give them to lawyers who are appointed from the District Court to provide some help in connection with the initial application in the District Court.

In any of that --

Justice Felix Frankfurter: Mr. Bennett -- Mr. Boskey do you have your reference to the many cases that have come up at this sort?

Have you gotten it begins even if not accurate one to make sure the magnitude of cases go up that are sought to be brought from a conviction of the Court of Appeals on informal proceeding?

Mr. Bennett Boskey: What -- do you mean in the District of Columbia or --

Justice Felix Frankfurter: I mean, exclusively in the District.

Is that the special problem with that and --

Mr. Bennett Boskey: Yes.

Justice Felix Frankfurter: Just roughly, what range of value this argument?

Mr. Bennett Boskey: Without distinguishing between direct appeals and collateral effect --

Justice Felix Frankfurter: No, I mean -- I mean distinguishing in which the District Court refuses to give us certificate you're indicate convicted.

They are substantial, aren't they Mr. Boskey?

Mr. Bennett Boskey: Yes.

The number is substantial.

And as a matter of fact, I -- I think, I have the number for the fiscal year 1960 and --

Justice Felix Frankfurter: Please do me (Inaudible).

So what year did you say?

Mr. Bennett Boskey: That's fiscal year 1960.

Justice Felix Frankfurter: 1960?

Mr. Bennett Boskey: About 180 petitions believed to appeal in forma pauperis were filed in the Court of Appeals and fiscal 1960 as of --

Justice Felix Frankfurter: That means after (Voice Overlap) --

Mr. Bennett Boskey: After it has been denied in the District Court.

Yes.

Chief Justice Earl Warren: You say and all of those were denied?

Mr. Bennett Boskey: Yes, Mr. Chief Justice.

Justice Charles E. Whittaker: All were denied but the Court of Appeals?

Mr. Bennett Boskey: No, by the District Court.

And then they come up after the denial by the District Court.

They come up to the Court of Appeals on a new application, as the Court of Appeals allowed, on a new application to the Court of Appeals believed to appeal in forma pauperis to be granted.

Now, the procedure in the Court of Appeals is that when we it receives such an application if the case is a direct appeal, as this one was.

When it received such an application it then, in all cases appoint counsel if the petitioner is unrepresented unless he affirmatively indicated if does not wish to be represented by counsel.

And the task of counsel is then to write initially -- to write a memorandum in support of the petition believed to appeal in forma pauperis in the Court of Appeals.

And that was the procedure which was followed in this case.

Justice Charles E. Whittaker: (Inaudible) was granted in the Court of Appeals?

Mr. Bennett Boskey: Yes, Mr. Justice Whitaker.

And in the fiscal year 1960, there were 24 granted by the Court of Appeals out of the one --

Justice Felix Frankfurter: Out of those 180?

Mr. Bennett Boskey: Out of the 180.

Justice Felix Frankfurter: And have you -- are there figures as to the number that have been -- that are applied before -- certificate applied for in the District Court denied by the District Judge -- Court Judges and drop of further move made to go up to the Court of Appeals.

Mr. Bennett Boskey: Those figures I don't have because such statistics as I have -- I obtained from the Court of Appeals --

Justice Felix Frankfurter: Are they substantial you think?

Mr. Bennett Boskey: I just would have know whether it knowing.

Justice John M. Harlan: Where is this one thing that these figures, Mr. Boskey --

Mr. Bennett Boskey: Mr. Justice Harlan, I -- you embarrass me because I'm going to have to cite an article which I wrote at --

Justice John M. Harlan: Alaska --

Mr. Bennett Boskey: -- in the University of Minnesota law review for April 1961.

But the question is where did I obtain for the article?

Justice John M. Harlan: I don't know.

I'd still don't want.

Mr. Bennett Boskey: And I obtained them from the article -- for the article by consulting records in the Court of Appeals Clerk's Office where the clerk's office keeps on cards a record of what type of case it is and what happened to the killer.

Justice Felix Frankfurter: Are there no annual statistical report for the Court of Appeal for the District --

Mr. Bennett Boskey: The --

Justice Felix Frankfurter: I mean the general judicial business.

Is that --

Mr. Bennett Boskey: The general statistics of the Courts, I think, would not furnish the kind of figures we're now are discussing.

Justice John M. Harlan: Well, the secondary sources are good enough for me, but what is it?

April 1961?

Mr. Bennett Boskey: Yes, Mr. Justice Harlan.

Although it just appeared.

Mr. Justice Douglas converted forward to them.

Chief Justice Earl Warren: Mr. Boskey, may I -- may I ask you if the --

Justice William O. Douglas: (Inaudible) in this case?

Mr. Bennett Boskey: I would think not now and hope not, Mr. Justice Douglas.

Chief Justice Earl Warren: Mr. Boskey, may I ask you if -- if you have any figures on as to how many motions for dismissal on the grounds of frivolity were made in the District Court here in regular case not informed of paupers -- paupers cases in -- but in the same year.

Mr. Bennett Boskey: Mr. Chief Justice, I have dealt with that question on page 33 of my brief and here is what I find.

It is not easy to make an exhaust search of miscellaneous unpublished order.

But within the limits of reason, I've made the search in the Court of Appeals extending back over the last six to seven years.

During that period, I could not find and I can only say the Government has not produced a single case in which the Court of Appeals dismissed a paid appeal as frivolous until a case decided in May 1961, which is while this case was pending here on petition for certiorari, which is cited in the footnote on page 33 of my brief.

And in that one single case which I had found, the dismissal took place only after there was full briefing and full oral argument on the merits of the case so that whether the disposition -- the ultimate disposition be called a dismissal or affirmant, the fact is, that in that one case, the paid appellant had full briefing, sold oral argument before the Court.

And now --

Chief Justice Earl Warren: What was doing that to you?

Mr. Bennett Boskey: During the sign period -- this was denied from Mr. Coppedge, my client and not only was it denied to him.

During the fiscal year 1960, there are 30 of the case were indigent criminal appellants on direct appeals which not exactly the same thing or more that this petitioner was guide in the Court of Appeals in the District of Columbia.

Justice Felix Frankfurter: (Inaudible) vague Mr. Boskey are you well-known but I take that you were not so comfortable that the fact that Courts of Appeal or for the matter of my point of view as this Court isn't it more robust in dismissing appeals as frivolous in vague counsel cases?

You are just going to make that statement from a mathematical embarrassment to sit down and denying.

I'll show you a proof of equal denial of these executives alone.

Mr. Bennett Boskey: I would make just that statement that the figures that I have cited, I think, are in refreshers as figures alone.

I must say that as a member of the bar, I have read the opinions of the Court of Appeals in criminal cases now for ten years, I think, without exception.

I think its perfectly clear that the questions which the Court of Appeals passes on or writes opinions about in paid appeals by far or less weighty than many of the questions involved in this in forma pauperi cases in which their denial leads to appeal.

And I do say that a good city even a good system cannot be a system which works one way of the rich and one way of the poor.

And I say it further that this system as it is now working is not a good system.And I come to why I think it is --

Justice Felix Frankfurter: I couldn't agree with you more that's why put in the word that's why I passed right the Court is not being adequate be robust in dismissing frivolous appeal even though (Inaudible) appear before a court.

Mr. Bennett Boskey: Now, on the question whether it's a good --

Justice John M. Harlan: Well the fact the matter is, Mr. Boskey, as I think you point out in your brief that in the -- in the ordinary procedure in -- in appeals in which the case has been made, the Court has no occasion.

The Court of Appeals has no occasion to consider whether it not that appeal is frivolous until it is set for argument.

It's a very rare case, is it not in which the appellee would move -- move to dismiss on the basis of the appeal was frivolous --

Mr. Bennett Boskey: Well apparently, it is something that has almost never happened in the Government and its brief says, “Well, it could happen.”

And the -- the fact that --

Justice John M. Harlan: Rarely, it has the exhaustive property in the -- in the ordinary course of events.

The Court doesn't have any occasion to consider whether or not the appeal is frivolous until it is set and until the arguments heard.

And in that case, what the Court often does instead of dismissing it who agree to affirm it but with the briefest kind of a per curiam opinion.

Mr. Bennett Boskey: I think that is correct.

Justice John M. Harlan: That's a general manner of doing business in Court of Appeals.

Justice Felix Frankfurter: Maybe I ought to have Mr. Boskey, the pre consul for appellee should be more of robust.

Mr. Bennett Boskey: Perhaps, Mr. Justice Frankfurter, they should, although I have to say that I think a great view of --

Justice Felix Frankfurter: Then what are the great deal?

Mr. Bennett Boskey: I think a great deal of the trouble in effect, the presences from the procedure arises from the fact that the Government as well as the Court of Appeals in the way in which these cases are half of -- on the Court of Appeals, the Government as well as the Court of Appeals is paying no attention to what this Court has said in the Ellis case is using the word “frivolous” as the semantic device to describe traditions with the Government had to disagree with and this -- in the long run causing much more a time to be spent on these cases.

Justice Felix Frankfurter: I do not have any idea Mr. Boskey is really a way to hit the note just likes me that this cumbersome procedure there as much me in giving the one of these forma pauperis patience of much more time and retention in the way of judicial manpower and everything else then is given to the appellate review.

Mr. Bennett Boskey: I think that's perfectly clear then -- it's not just from the burden on the bar.

I assure you it is that it's a problem at the bar and the judges who share together.

And the burden has become almost intolerable.

And the system is not worth it.

Justice Felix Frankfurter: In due process, we let your -- be found at your argument that -- Mr. Justice -- just Mr. Justice Brennan points out the difference in responsibility between not being able at justice -- would do it for just not being able to determine issues of revolving and that's the matter count before the Court and having the positive responsibility of paying out government money and time in hearing for this appeal.

Mr. Bennett Boskey: Well, in this --

Justice Felix Frankfurter: Is this really a problem?

Mr. Bennett Boskey: In this case, Mr. Justice Frankfurter, as in the Lurk case, which came before you last term, most of the money was paid out the transfer it was paid for -- the transcript frequently has paid for.

The only thing that --

Justice Felix Frankfurter: Well, isn't that the very point, Mr. Boskey in terms of paying out government money and time, much more squander done under this procedure than this is required and in the case of appellate review?

Mr. Bennett Boskey: I think that has become evident from the experience of those who have to tried live with this --

Justice Felix Frankfurter: But we also talking about bloated dockets.

There's no better way of bloating the docket then have the frivolous subpoenas.

Mr. Bennett Boskey: Well, I'm quite prepared now to talk about where the Mr. Mark Coppedge floated the docket in the Court of Appeals.

Justice Felix Frankfurter: Alright, that -- that's what I said.

Mr. Bennett Boskey: That's really what I -- the in forma pauperis problem is one that is with all of these.

There isn't any simple solution to it.

By hindsight, I think perhaps if this Court in some of the eight or nine cases where it has per curiam reverse the Court of Appeals in these cases and authenticates fact.

If this Court in one or two more after Ellis had written some sort of opinion which would explain and over again to the Court of Appeals.

What this Court meant when it wrote the Ellis opinion, possibly that would have done from good.

Justice William J. Brennan: Did the Ellis opinion ambiguous?

Mr. Bennett Boskey: To me, Mr. Justice Brennan, it's clear its can be.

Justice William J. Brennan: Well, what are you saying is that what the ordinance do is just the people words that we used in Ellis and say we need them.

Mr. Bennett Boskey: I think it might -- would be mighty helpful and perhaps in this the Government would give a hand.

Now, as I say, in this case, the Government in 53 printed pages says all my arguments are frivolous.

If they're right, I'm wasting my own time as I wasted time with the two courts.

And it would be an active mercy for the Court to tell me so.

Petitioner doesn't think the Government is right.

Petitioner thinks that the only frivolous aspect to this case, if the Government's contention, this case is frivolous.

And if I may, I want to go in to the merits.

There is -- there's a problem about the -- the merits and namely, suppose I am right, what should this Court do about it, I dealt with this in the brief, should the Court pass on the merits or should the Court vacate the judgment and send the case back to the Court of Appeals to pass on the merit initial.

And in my brief, I have given examples of cases where this Court has have a little bit each way.

I think, in this case, there are fairly compelling consideration to this Court to pass on the merits and let me imagine what they are.

First, this petitioner was convicted of this crime in March 1960 which is getting on to be almost two years ago.

Chief Justice Earl Warren: Is he in -- is he in jail now?

Mr. Bennett Boskey: This petitioner is Lorton Reformatory, serving his sentence, he didn't begin to serve the sentence until about five weeks ago because he was there on a prior sentence.

But he is now serving his sentence.

The indigent, his prospects for being released on bail, I think, are zero.

Justice Felix Frankfurter: What is the Lorton reform of it?

Mr. Bennett Boskey: What is Lorton reform --

Justice Felix Frankfurter: What is it?

What -- what's the nature of the penal institution?

Mr. Bennett Boskey: It's a -- it's a --

Justice Felix Frankfurter: How old is this petition is valid?

Mr. Bennett Boskey: It's for adult.

It's -- it's not a juvenile or youth.

Justice John M. Harlan: At minimum security?

Mr. Bennett Boskey: It's a minimum security.

I think it's something like Denver is.

Maybe even a grade below down.

Justice Felix Frankfurter: But reformatory is a misleading firm?

Mr. Bennett Boskey: It's a present.

Justice Felix Frankfurter: It isn't -- it isn't open and all around.

Mr. Bennett Boskey: No, it's a penitentiary.

It's a -- you're in cell blocks

Justice Felix Frankfurter: Maybe -- maybe I should go and visit the penal institution in this neighborhood.

Mr. Bennett Boskey: Now, as I say, the petitioner is now serving his sentence.

The long delay in his getting an appellate review of this case is no fault his.

And as I shall hope to show in a moment, the questions that are arise in this case arrives largely in connection to the meaning and application of this Court's decision in three or four cases.

And therefore, the clarification of the meaning and application of those decisions could more properly come from this Court, I think, that it could from the Court of Appeals.

In any event by arguing the merits in my brief, as I have, I have put the case before you so that the Court will have no difficulty coming to its own conclusion on whether the contentions are frivolous.

There are several groups of contentions.

The first has to do with a problem as to the validity of the indictment.

This problem is one which the briefs deal with at length.

But despite that, I want to say a say a few words about it on oral argument.

What happened was that after the case was sent back was remanded by the Court of Appeals after the first conviction was reversed.

The new account, new counsel's who was been appointed to represent petitioner at the second trial, made a motion in the District Court attacking the validity of the indictment.

And attached to that motion, there was bundle of papers.

One, a signed statement by a man named Tompkins, who had testified before the jury, two, a letter from Tompkins, and three and four, two documents which had been prepared for Tompkins signature but had not been signed.

All four, together with the motion, were placed before the jury -- that -- were placed before the District Court.

And the motion came up for argument before Judge McGuire.

Now, the transcript of the argument appears, it is reproduced and it's entirely in the record in the case.

It isn't very long.

Its pages 65 to 72 of printed record here.

The petitioner's contention is that two questions were raised by these papers presented on the motion.

First, the claim that Tompkins had given substantial evidence before the grand jury that this substantial evidence was what resulted in -- in the indictment filed the petitioner by the grand injury and that Tompkins now repudiated his testimony before the grand jury said that he was a liar in the perjury and had given the testimony before the grand jury in order to receive third consideration for himself, which he was promised so that the first question raised by the motion and preserved here on the briefs is whether when there is substantial perjured testimony, which has resulted in the indictment of the defendant and where the issue is properly raised before trial, not after, but before trial.

Justice Felix Frankfurter: Made at the second trial?

Mr. Bennett Boskey: At the second trial.

But before the trial took place.

Justice Felix Frankfurter: Okay.

I understand.

Mr. Bennett Boskey: And was entertained by the judge.

So, there's no question about funds.

Justice Felix Frankfurter: You mean, was it paid?

Mr. Bennett Boskey: It was here in fact and the motion was entertained.

Justice Felix Frankfurter: And -- and --

Mr. Bennett Boskey: And passed on.

Justice Felix Frankfurter: -- and passed on the merit.

Mr. Bennett Boskey: Yes.

In such a case, whether the mere -- the mere fact that there may have been other competent evidence before the grand jury automatically tell the gist in the indictment.

Chief Justice Earl Warren: Was there a claim that the Government's part is a prejudiced?

Mr. Bennett Boskey: I'll come to that at second issue here.

It is our position that the papers sufficiently raised exactly that claim.

That the papers sufficiently articulated a claim that this testimony had been induced by an FBI agent named Woods and by the prosecutor Mr. Flanery and that it was induced with considerations promised to Tompkins.

And Tompkins was made available to the Court to be heard as a witness if the Court so a fit the column on this motion which the Court did not.

Justice Felix Frankfurter: Can you tell us what Tompkins stated the position of relation was at the time of the recanting affidavit?

Mr. Bennett Boskey: He was at that time in jail.

Justice John M. Harlan: He was once a codefendant?

Mr. Bennett Boskey: He was a codefendant that he -- and he would -- he also had been convicted on another charged.

And I believe -- I'm not sure at that date which sentence he would serve.

Justice Felix Frankfurter: And at the time of the testimony before the grand jury, he was awaiting disposition of the charge against him?

Mr. Bennett Boskey: Well, at that time, the charge -- yes, he was awaiting disposition of the charge.

But the charge had informally been made in the indictment.

He was named in the same indictment.

And a -- a plea was accepted of guilty to one count.

Justice Felix Frankfurter: He was a codefendant.

He testified before the grand jury before he was indict.

He was a called suspect at the stage.

I think he was a suspect.

Mr. Bennett Boskey: Oh yes.

Justice Felix Frankfurter: He was test -- he testified against the alleged partner in crime before the grand jury.

Mr. Bennett Boskey: And he implicated petitioner.

Justice Felix Frankfurter: Pardon me.

Mr. Bennett Boskey: He implicated petitioner.

Justice Felix Frankfurter: He implicated petitioner.

Subsequently, he was indicted and convicted and he's in jail announced what he said before the grand jury was a fact of lie.

Uttered because of expected favor.

Mr. Bennett Boskey: Precisely.

Now, the Government says in his brief in this court that the question you just asked me about Mr. Justice Harlan namely whether the Government was implicated in this.

The Government says this was never seriously urged below.

We say that a fair reading of the transcript where Judge McGuire makes it perfectly plain with Judge McGuire understood the papers to raise that question -- that precise question.

And that coming now two years and two Courts later, the contention of the Government that this was never seriously raised.

It doesn't square with the record.

Justice Felix Frankfurter: Did -- did Judge McGuire -- I'm sorry I'm a little confused.

Did Judge McGuire passed and reject this motion?

Mr. Bennett Boskey: Judge McGuire rejected the motion in an opinion which relied largely on the -- this Court opinion in the Costello case and said, as I was just about to tell you --

Justice Felix Frankfurter: Do I understand rightly that Judge Holtzoff presided in both?

Mr. Bennett Boskey: Judge Holtzoff presided in both trials and one of the issues here is whether he should have disqualified himself for prejudice.

Justice Felix Frankfurter: Why didn't just as a matter interesting in the administration of justice into this case, why -- why shouldn't a motion on the indictment attacking the affirmative the indictment have gone to Judge Holtzoff?

Mr. Bennett Boskey: I cannot answer --

Justice Felix Frankfurter: Are you getting the cause?

Mr. Bennett Boskey: I cannot answer that question.

It may possibly be that the case has been firmly assigned to Judge Holtzoff to try at the time the motion came out.

Justice Felix Frankfurter: You can tell me I'm sure whether the practice in this District that matters depending for a single case are already third subject to injure witness, accepted the -- accepted the -- the same judge.

Is that the fact?

Mr. Bennett Boskey: I have been told that after an assignment is firmly made where judge to try a case that is so prior to that time, it is not.

We say the record clearly shows that the point was fully understood by Judge McGuire.

When petitioner's counsel started to elaborate the grounds of that hearing the court said -- Judge McGuire said here, “When Woods promised to a witness to go before the grand jury, he wouldn't be prosecuted if he testified against Coppedge is that it.

And the petitioner's counsel said, “Yes, that is correct, Your Honor.”

And then the Court said, as I understand the gist of the affidavit, “It is to the effect that the witness who appeared before the grand jury was promised if he went before the grand jury and testified falsely against the defendant in this case, he would himself not be prosecuted.

Is that it?”

And counsel said, “Well, if not prosecuted, he would be given certain consideration?”

“Yes.”

There is no any doubt that Judge McGuire understood this issue was raised by the Government being implicated.

And we say it was raised enough to create an issue of fact which should not have been tried and heard.

Now, what is the obstacle to it?

In the Court of Appeals, the Government didn't really deal to this point very much, but it said that the Costello case just created the complete bar to any inquiry into what evidence the grand jury did or didn't interfere.

I would say to that as I have been in the reply brief, the Costello case, which very carefully traced the history of the grand jury as an institution.

The Costello decision carefully stated that the question before the Court was whether hearsay could be used before the grand jury.

And the -- the Court unanimously, and I think quite obviously, came to the conclusion that the rules of evidence were not to be technically applied in grand jury proceeding and that whether evidence was or was not hearsay was not a proper subject for inquiry by the Court.

The Court did not in that case or in the later Lawn case or on the prior Fault case where Mr. Justice Holmes wrote the opinion.

The Court never dealt with -- has never dealt so far as I've been able to ascertain with the perjury question.

What do you do if you have substantial perjury that was used before the grand jury to obtain the indictment?

Now we say first, if the Government is implicated in the perjury, it's a perfectly clear case.

You cannot have a system of justice where an overzealous or a dishonest or an evil minded prosecutor could deliberately take perjured evidence before the grand jury and detain an indictment and then have a rule of law that said this shall never been inquired into by any court.

We say that that was the contrary to the whole spirit of this Court's decisions on the knowing use or knowing allowance of perjured prosec -- testimony by a prosecution.

And apart from the constitution --

Justice Potter Stewart: This was a -- this was an offense of the character that could be prosecuted only by indictment rather than information.

Mr. Bennett Boskey: It was, Mr. Justice Stewart.

It was prosecuted by indictment.

Justice Charles E. Whittaker: Mr. Boskey, would not this matter be more constantly handle simply by the dismissing of the case on its appearance on the testimony brought back rather than to permit disruption of an indictment simply because the witness before the grand jury recaps?

Mr. Bennett Boskey: Well, Mr. Chief Justice Whitaker, I was dealing with the other case first where the prosecutor clearly and crucially had deliberately brought perjured testimony before a grand jury in order to secure an indictment.

Now, we say if that kind petition appears that is an abused of the Courts.

It's an abused of the grand jury system and to allow that indictment to stand deprive a defendant of the protection of this Court has said in the grand jury system it supposed to provide.

It's to protect him against that kind of oppression by the prosecutor.

Not to have the grand jury act as a rubber stamp for the prosecution or become unwillingly an accomplice of the prosecuted who does such a thing.

Now, that's the first case whether is knowing complicity by the prosecution.

And we say, we should have had a hearing on that point here.

And the failure to give us the hearing was erroneous.

Now, I come to the second case which I think --

Justice Felix Frankfurter: Well, you wouldn't say that you always have to have a oral hearing.

And this was a --

Mr. Bennett Boskey: I think, you have to have a satisfactory inquiry, Mr. Justice Frankfurter.

Justice Felix Frankfurter: Well, I said (Inaudible).

Mr. Bennett Boskey: And was not had here.

And that the witness Tompkins was available to the Court.

He could have been called.

The prosecutor was available.

The FBI agent Mr. -- Mr. Woods was available all within the confine of that building.

They could have had all the hearing they wanted on this issue on --

Justice Felix Frankfurter: Did it going to be on the need of your case?

I think you do not have to say that affidavits are ruled out here after Un-American proceedings of this kind.

Mr. Bennett Boskey: I never said that.

A hearing --

Justice Felix Frankfurter: But you just said that you have the witness is available and that you could have put him on the stand.

Mr. Bennett Boskey: I -- I would say that hearings maybe of many types.

There are many types of hearings where affidavits are useful, helpful, admissible, competent.

They weren't used here.

The Government filed no written affi --

Justice Felix Frankfurter: Well, they weren't used here because of judge went on some legal consideration --

Mr. Bennett Boskey: Yes.

Justice Felix Frankfurter: -- to which that he examined the grand jury minutes.

He excised all the issue and --

Mr. Bennett Boskey: And there was not enough left anyway.

Justice Felix Frankfurter: And there was not enough evidence left any anyway.

The conception of the grand jury as a charging body and the relation of the grand jury Justice Whittaker pointed out that one of those in the trial court.

I'm not saying his wrong.

I think his right.

And I think I agree with it.

All I'm saying that your suggestion if there were oral witnesses available is not sufficiently circumscribing from my point of view.

Mr. Bennett Boskey: Well, I was suggesting that as one easy convenient way for the judge to have gotten the truth without taking two years to find out what it was but to take an hour.

That was the easiest thing he could have done.

And I'm saying he should have done it.

And his failure to do it means that this petitioner has been deprived of the kind of hearing his entitled to whether by hearing the witnesses personally by affidavits or by anything else.

The Government filed knowing after to this motion.

It filed no written answer.

It didn't controvert any with this.

It just said it doesn't make any difference under the Costello decision and that is not what the Costello decision has ever been said to me in before.

Now, I have one other point.

I'm reminded out by Mr. Justice Frankfurter's summary of Judge McGuire's decision mainly that Judge McGuire said, "Well, I've looked at the grand jury minutes.

And there's enough further evidence here."

The petitioner's trial counsel tried his best to get hold of the grand jury minutes because he wasn't satisfied with Judge McGuire.

He's the only one who has looked at them.

And see what there was to that.

And he was denied access to the minutes.

And when I try to appeal in the Court of Appeals and was rethought, I said in the Court of Appeals that it was hard to have denied access to the grand jury minutes -- petitioner's counsel but in any event, even if you are going to do that.

At the very minimum, the Court of Appeals has an obligation to look in camera at the grand jury minutes to see whether Judge McGuire was right but whether the perjured evidence was the entire evidence in implicating petitioner.

So far as I know and so far as any available record show, the Court Of Appeals has never look at the grand jury minutes, never passed on this point.

The point remains open in the case here.

Justice Felix Frankfurter: Did you -- did you argue this case although it was before the Court?

Mr. Bennett Boskey: I was not given any such opportunity.

Justice Felix Frankfurter: No it was on you brief.

Mr. Bennett Boskey: This case -- and in these case --

Justice Felix Frankfurter: It was the justices in your brief.

Mr. Bennett Boskey: I certainly did.

I suggest that it was such bigger as I possess.

And the Government's answer to it in the Court of Appeals where they should also said there weren't enough subs -- the case was not substantial to -- to warrant an in forma pauperis appeal.

The Government answer was that on the Costello, no such examination of the grand jury transcript by the Court was required.

Justice Felix Frankfurter: May I ask you this -- the -- what you said a minute ago namely that trial counsel that he like to see the grand jury minute --

Mr. Bennett Boskey: He made a motion.

He didn't just say he would like to see.

Justice Felix Frankfurter: -- but I'm -- I'm talking about really, he made a motion.

Was this before Judge McGuire handed down his memorandum or after it?

Mr. Bennett Boskey: It was after.

What happen was that the very end of the trial colloquy and before Judge McGuire, the Government said, well, they make the grand jury transcript available.

Then apparently what happened was that the petitioner's counsel tried to get the same transcripts from the prosecutor that the prosecutor was giving to the judge.

And he was totally unsuccessful.

He then made a motion saying in the motion that he had tried to get transcript.

He couldn't.

He felt he had a right to see it to be able to argue whatever the transcript showed on this whole.

Justice Felix Frankfurter: You just said something that interests me very much namely, ex-party practice in the but of prosecutor.

How does the grand jury minute get to Judge McGuire?

Or this -- just tell me that.

Mr. Bennett Boskey: I've given you the sum total of my knowledge, Your Honor Mr. Justice Frankfurter, on page 72 of the record, at the very end of the colloquy before Judge McGuire.

It says as follows, “The court -- The Court, well, I think I should have it if it's written off”, Mr. Flaner, prosecutor.

Part of this is written off.

I will check my file on that and if all isn't written off, I will get it written up and submit it to Your Honor.

And Your Honor can clearly see what occurred before the grand jury.

The Court, I will take it under advisement.

That's all I know about it.

Justice Felix Frankfurter: Is the counsel was counsel of the corpus Government has declaimed?

Mr. Bennett Boskey: Yes.

And I assume in some way they are after.

The -- the document was passed to the Judge by the prosecutor.

Justice Felix Frankfurter: If you'd been there, I'm sure you would not sit down like with those means to.

Mr. Bennett Boskey: Your Honor, I've been with this case only since April of 1960.

Justice Felix Frankfurter: I quite understand.

Mr. Bennett Boskey: One always has second thoughts about what might have been done and it's nearly a siege.

But the point really to be made is that this lawyer, who represented Coppedge in the District Court, was quite vigorous on -- on all these point I have been talking about.

Conceivably (Voice Overlap)--

Justice Felix Frankfurter: He did about on the appellee?

Chief Justice Earl Warren: He did ask to see the -- the minutes?

Mr. Bennett Boskey: He made a motion.

Chief Justice Earl Warren: Yes.

Mr. Bennett Boskey: And the motion was denied by Judge Holtzoff when it later came on and that also is in the transcript and as a matter --

Justice Felix Frankfurter: Is the issue come before Judge Holtzoff?

Mr. Bennett Boskey: The -- the motion to see the transcript then got a sign of Judge Holtzoff.

Justice Felix Frankfurter: Well, with the view to off real indication determined by Justice McGuire?

Mr. Bennett Boskey: One every knows because a motion to reconsider Judge McGuire's decision was filed and was denied by Judge McGuire.

And then a motion to -- for access to the transcript was also made, which came up in a certain bundle of confusion as the transcript shows and before Judge Holtzoff.

And it was on that occasion in addition to denying the access to the transcript.

It was on that occasion that Judge Holtzoff made the remarks which petitioner contend should have resulted in his recusing himself in the trial of this case and that perhaps this is the best time to advert to that just briefly.

What have had happened -- I've set this forth at length in my brief.

The issue is when -- whether the remarks made by Judge Holtzoff on this case showed the kind of prejudice that (a) would have made it necessary or (b) would have made it desirable in the interest of the administration of justice for Judge Holtzoff to disqualify himself.

Now, the motion -- a motion was made at the outset of the trial that Judge Holtzoff to disqualify himself.

And it was renewed right after the jury has been sworn in the opening have been started.

Judge Holtzoff never allowed the grounds of the motion to be stated on the record.

Counsel has reshowed in the record and in my brief.

Counsel attempted to state the grounds.

And Judge -- for the record, and Judge Holtzoff said, “In my court, we don't try cases for the record.

Sit down.”

And counsel sat down.

The prejudice complained --

Justice Felix Frankfurter: Are there any record in that Court?

Mr. Bennett Boskey: Are there what?

Justice Felix Frankfurter: Are there any record in that Court?

Mr. Bennett Boskey: There are voluminous records.

Justice Charles E. Whittaker: Well, I wonder that quite very statement of Judge Holtzoff.

Didn't he say, “Here, we tried cases for them”?

And if this evidence continuation of the Court in full, we don't apply cases just direct.

Didn't what he meant was?

Mr. Bennett Boskey: It was a little different, I think, Mr. Justice Whittaker.

It's set forth at page 13 of my brief that the Court said that you have already brought that up at the bench conference.

“I've disposed of the matter.

You may not bring it up again.

You may proceed.

Mr. Collins, for the record, if I may give the reasons to the Court, no you may not.

I don't know what you mean when you say for the record.

Cases are tried before the court and the jury.

They are not tried for the record.

You may resume your sit sir.”

Justice Charles E. Whittaker: That's what (Inaudible)

Mr. Bennett Boskey: That's what the colloquy is.

Now, what were the grounds on which Judge Holtzoff should have recused himself?

The grounds were that in the hearing on the prior motion in referring to an episode which had occurred during the first trial, Judge Holtzoff said he remembered the episode very well where this man, Tompkins, had refused to testify at the first trial.

He said he was just terrorized by Coppedge.

And then he went on when there was call to his attention, Tompkins' statement that he had perjured himself before the grand jury.

Judge Holtzoff said he asserts.

I imagine that statement was induced by Coppedge.

Now, there wasn't anything in the record of the prior trial.

And there wasn't anything that ever occurred in the record of this trial.

It would suggest or show that the recantation of Tompkins was induced by Coppedge.

For the judge to have such a set conviction about the matter, before the trial began, put petitioner had a serious disadvantage.

It put him before a judge who seem to have made up his mind on the truthfulness or lack of truthfulness appoints not yet induced an evidence, which might or might not be induced an evidence.

He seem to have made up his mind that he would not accept any view petitioner might testify to in some of these advantages if petitioner should elect to testify.

And we say that under these circumstances, Judge Holtzoff should have excused himself.

Now, the problem in the District of Columbia is not quite as severe as it might be in some districts where this only judge.

There are many judges all quite busy but there are many judges in the District of Columbia.

And when a problem of this kind arises, it is not a very difficult matter for a judge to pass the case on to another judge for assignment.

Judge Holtzoff's basic misconception here, I think is disclosed in the part of the transcript quoted on 12 -- page 12 as my brief.

Where -- when the question was raised, he said, “I don't think I have the choice in the matter.

It would be unethical for me to disqualify myself.”

As if he were -- would be doing something improper to take himself out of the case.

I think this really comes down to the heart of the matter on the disqualification point that Judge Holtzoff had such a narrow view of the duties and responsibilities and discretion of the judge in withdrawing from the case that he exercised whatever discretion he might have had as if there wasn't any discretion.

He regarded their -- the situation as one in which no discretion existed in which even he was legally disqualified within the meaning of the statute covering affidavits or prejudice or else.

He wasn't disqualified.

And he must sit because the case have been assigned to him surely isn't the law.

Justice Felix Frankfurter: Well, if -- no offense to Judge Holtzoff.

That is what he said.

It is unethical for a judge to decline the trial case because it is unpleasant.

And he imposed an extra burden to some other judge.

He wouldn't use affidavit that after they taken witness.

Mr. Bennett Boskey: Not in the abstract.

But any says no judge should ever disqualify himself unless he is legally disqualified.

Then he had just said I don't think I have the choice in there.

So taken in --

Justice Felix Frankfurter: Well, it -- it's an affidavit of disqualification, Court not to be granted by a judge and any other choice of the matter.

Mr. Bennett Boskey: No, I -- I would argue differently.

This is not a case where --

Justice Felix Frankfurter: How can you argue?

This is the --

Mr. Bennett Boskey: Well, let me explain.

Justice Felix Frankfurter: Take my -- take my -- be sure you -- that I stated what I wanted to state.

If an affidavit of disqualification under the construction by this Court of that statute should not leave the judge.

Does not call for taking himself out of the case then I think I would -- I might not use the word probably worth.

And it is unethical because of ease or prudence or comfort or a politically dioramic sense of -- of conscience to take himself out of the case.

Mr. Bennett Boskey: Well, let me explain.

Justice Felix Frankfurter: This Court has said all this as much.

Mr. Bennett Boskey: An -- if an affidavit of prejudice is filed which meets the requirement of the statute as I understand the statute, it is then the judge's obligation to disqualify himself whether the facts are true or not, whether at heart he feels, he let to be disqualified or not.

The statute gives him no choice.

Justice Felix Frankfurter: I agree.

Mr. Bennett Boskey: This is not such a case.

The affidavit wasn't filed.

The affidavit is not the soul root toward the judge's recusing himself in a case.

What we say is that under all the circumstances of this case, Judge Holtzoff should have disqualified himself.

And he was wrong in thinking he had no choice from there.

He did have a choice.

Justice Potter Stewart: Your point is that taken to Judge Holtzoff though he was betided from searching his own mind to see whether he prioritized this case.

Mr. Bennett Boskey: That is certainly a large apart of my point.

Chief Justice Earl Warren: And on the other hand, Mr. Boskey, if there was no affidavit or no suggestion of bias at all, if he felt in his own conscience that he couldn't be paired of the man because he had some kind of a prejudice.

It would be his duty to retire.

Is it not?

Mr. Bennett Boskey: In -- in the entirely in the absence of an affidavit.

Chief Justice Earl Warren: Yes.

Mr. Bennett Boskey: Yes.

Justice Felix Frankfurter: That's right.

But -- but the reverse of Justice Harlan says, of course, if he says I can search my conscience and such a self-righteous feature that I don't have to examine the -- all the complexity of mystery to the human mind and conscience at another thing but if having done that, he's clear in his mind that it is duty to sit and not as the matter of choice to recuse himself.

I'm not saying the facts are -- within or without --

Mr. Bennett Boskey: So, I understand what you said Mr. Justice Frankfurter.

And actually I carried on this point longer than I expected to.

We have a very substantial evidence point in the case which they're almost just not time to elaborate orally.

It involves the problem of the unavailable witnesses second trial is testified in the first trial.

There was a witness in this case that -- weak -- man of probably low intelligence as his testimony at the first trial shows.

A witness who had implicated petitioner most seriously at the first trial who at the time of the second trial had become subject to such a series of illnesses that he was not unavailable -- was not available and actually perhaps was on the virtue of death.

He had a mental condition.

He had leukemia and various other things.

So, the government came in and said we want to read his testimony that was given at the first trial.

There is any question of the seriousness of the testimony in -- in pinning the crime on to this petitioner the jury believed the testimony.

And petitioner's trial council made recently valued effort to persuade Judge Holtzoff not to admit the testimony.

And he offered many reasons.

One was that there was a recantation statement filed this very witness saying giving a version of the event that exculpated instead of implicated petitioner.

And in view of that, he said the testimony was clearly unreliable.

Another wise that if now appeared from the kind of schizophrenia diagnosis that had been reported that this witness Artist now had schizophrenia.

That was an illness started some time ago and very possibly affected by this even at the time of the first trial.

Another wise that during the course of the first trial, Judge Holtzoff had made some comments about this witness that went right to the unreliability point.

He had -- he had himself told the jury something about Artist's unreliability.

And in addition to that, in a colloquy with counsel, which appears in the record at the first trial, he has said this prosecutor.

Now, maybe I can save a lot of time in the trial of this case.

How much would you going to rely on Artist's testimony because I want to tell you right now that there isn't any judge who would send the man on the penitentiary on the basis of Artist's testimony.

That's in the record of the first trial so that there were surrounding this event.

There were all the hallmarks of unreliability.

You have a problem of confrontation.

It is true that this Court has said and most Courts have said that the constitutional requirement of confrontation is met if in a second trial, the unavailable witnesses' testimony is brought forward and read provided he had testified as the witness at the first trial and there had been an opportunity to cross-examine.

There's nothing in the cases that I have been able to find.

It says that there is any absolute right on the part of the Government introduced this testimony.

And I must say, I've never found a case that had so many hallmarks of unreliability detaching to the testimony as appeared in this case.

Nevertheless, Judge Holtzoff, and here we come back again to this problem of absolutes versus discretion.

Judge Holtzoff said, “I don't think I have any discretion in the matter.”

He testified before I must.

The government has a right to introduce his testimony and after many pages of colloquy, he uttered objection admitted the testimony.

Not -- not only did he admit the testimony but the efforts which the defense made to show that the testimony was rendered unreliable by other extraneous items of evidence were rejected.

Justice Hugo L. Black: Where is that?

Mr. Bennett Boskey: Well, they call it the principal colloquy.

Justice Hugo L. Black: I mean where it is the -- in the record can we find that this evidence abided that Coppedge against the defendant.

Mr. Bennett Boskey: Excuse me.

Against the what?

Justice Hugo L. Black: Against the defendant and that he was declined the opportunities -- defendant was declined the opportunities to offer evidence to attack it which is relevant.

Mr. Bennett Boskey: Alright.

The principal colloquy is relating to this appear at pages -- what are here -- pages 90 to 97 of the printed record in this Court.

They are not so references and others appear in my brief.

Justice Hugo L. Black: What was the challenge that was made to show or what was the offer that was made to show that Artist's evidence was unreliable?

Was it rejected?

Mr. Bennett Boskey: In addition to the surrounding fact, what was the new evidence?

Justice Hugo L. Black: Yes.

Mr. Bennett Boskey: There were two things, Mr. Justice Black.

The first was a statement, which is reproduced at page 22 of the printed record here, signed in two places by Artist which is entitled “United States District Court for the District of Columbia” and which purports to be a statement made to clear my own conscience and for the benefit of clearing my conscience and which says “I had no connection with any of the other defendants in this case.”

The only one he says he had a connection with this one named Quinsey -- a man named “Quincy McCall”.

Justice Hugo L. Black: May I see if I get that appeared do that mean Artist has testified contrary to this?

Mr. Bennett Boskey: This is directly contrary to the testimony.

Justice Hugo L. Black: And you offered the sworn affidavit the Artist had made prior to the admitting that he had testified partly?

Mr. Bennett Boskey: This is -- trial counsel offered a recantation statement.

It is not notarized.

So, I cannot say there's an affidavit.

Justice Hugo L. Black: Was it signed?

Mr. Bennett Boskey: It is signed in two places.

Justice Hugo L. Black: By this --

Mr. Bennett Boskey: It reports to be signed by Adam Artist.

The judge said when he first saw this turned it over to the FBI for handwriting comparison.

And petitioner's counsel said certainly turned it over to them for handwriting comparison.

He said, “I've already looked at the handwriting because it signed in two places.

And we have Artist's signature on some of the money orders in this case.

And it looks genuine to me but I'll give it to the FBI.

Let them look at it.

Justice Hugo L. Black: Now, why was that rejected?

Mr. Bennett Boskey: That was rejected in -- and on a series of colloquies beginning on page 90 and ending on page 97.

And as you'll see in my replied brief, the Government in its brief says, well, maybe they didn't really want to introduce this thing at the trial.

Justice Hugo L. Black: What was the ground for reject?

Mr. Bennett Boskey: The final ground of rejection, although various other things were stated.

The final ground of -- of rejection with Judge Holtzoff's statement that “I will not admit it because it is not in his handwriting.”

You see, only the signatures were in his handwriting and the rest was in the --

Justice Hugo L. Black: What page now is that you said that statement?

Mr. Bennett Boskey: That statement appears at page 97, at the top, “I am not going to admit it in due the fact that it is not in his handwriting.

And Judge Holtzoff --

Justice Felix Frankfurter: That's because --

Mr. Bennett Boskey: Holtzoff said that the rest of it appeared to be in the writing of some other gentleman who was an inmate of the penitentiary from whom he got frequent document.

Justice Felix Frankfurter: I take it no point was made of the fact that it was notarized.

Mr. Bennett Boskey: Some brief reference was made to that in passing.

I do not see how it could affect the legal admissibility of that.

Justice Felix Frankfurter: But I'm not just --

Mr. Bennett Boskey: It would be a matter of wait for the jury and--

Justice Hugo L. Black: But you offered was a contradictory statement.

Mr. Bennett Boskey: Plainly contradictory.

Justice Hugo L. Black: But they're having the testimony given against your client.

Mr. Bennett Boskey: And Judge Holtzoff four times in this colloquy said he would not admit it in evidence and the Government yet says it isn't clear that the petitioner really wanted to get it in.

Now, in any courtroom, four times probably exceeds by two the limited times you can urge a judge to receive an exhibit he has refused to receive.

In this case, pretty vigorous effort was made.

There was other evidence also rejected and effort was made to bring in the testimony of a man named “Bush”, another inmate of Lorton that on -- at a certain time things possibly here was an error as for the date but in anyway rate, he said he was in the cell at Lorton with both Artist and petitioner and he heard Artist make some statements about this case.

And an effort was made then through this witness to introduce those statements the extent that there would be in direct contradiction of Artist's testimony.

Judge Holtzoff said, “I was not going to listen to argument on this”.

He said, “You can't introduce those statements because there's been no opportunity to cross-examine Artist's sworn”.

And they went on.

So, that -- that was the other evidence Mr. Justice Balck.

Now, we have in the case many other points, which obviously there isn't time to develop on oral argument.

There are points about what the rules should be for the corroboration of accomplice testimony that not are fully developed in the brief.

There is a point about in connection again with Artist matter about the Government's failing to produce the original of the document which it was required to produce under the (Inaudible).

There are points about the charge, which I think are adequately developed in the brief.

And there are points also about the prejudicial comments of the prosecutor in expressing his own opinions on who was telling the truth and who wasn't telling the truth.

Something that I think is prohibited by the counts of ethics.

And it's a matter of how you read what he said.

The Government said that it was just fair comment on the evidence.

We say that the proper reading of it shows that it went partly on that and expressed to the jury his own personal belief and the truthfulness of the FBI agent, which is a very different thing from just saying the evidence showed that the FBI agent testified such.

Well, the two or so minutes remaining, I'll save for it by.

Justice Felix Frankfurter: May I -- I hope about taking your time asking this.

At the beginning of the argument, Mr. Boskey, you said you thought that within the last month, if I recall correctly, in view of the congressional legislation giving the legal aid in the District that the changes and since this problem isn't just one case but a system.

Would you mind telling us more of the case?

Mr. Bennett Boskey: Yes.

The sentence has nothing to do with the Court of Appeals.

I think the change has to do with how this is handled in the District Court.

Justice Felix Frankfurter: You think that's what the important place, if I may say so.

Mr. Bennett Boskey: Its certainly one of the important place.

Mr. Murray, who is the Director of the Legal Aid Agency established by the Congress, tells me that now, the attorneys whom they assigned the cases do discuss with defendants the problem of what time of the submission to make to the trial judge.

And he says where they get outside attorneys to agree to serve in these cases -- in the trial cases.

They also recommend the outside attorney that he discussed with the defendant in the preparation of any such paper to the trial judge.

Now, I don't know how the system is actually working --

Justice Charles E. Whittaker: Submission -- submission of what?

Mr. Bennett Boskey: The submission of an application to the trial judge believed to proceed an in forma pauperis.

Justice Felix Frankfurter: What kind of question is to be raised?

Mr. Bennett Boskey: The kind of questions in my feel normally deal with what are the questions you're going to read on appeal.

Justice Charles E. Whittaker: This is after conviction.

Mr. Bennett Boskey: This is after --

Justice Felix Frankfurter: Now, may I go inference in what you said that the important thing is that there is no general oversight by some responsible body of -- of the position of the indigent defendant not in a particular case but more pervasively.

Mr. Bennett Boskey: No, I -- I'm sorry --

Justice Felix Frankfurter: Have I write that letter hoax?

Mr. Bennett Boskey: I'm sorry.

It's a hoax.

I have the hoax but I'm sorry to say that I think it couldn't be justified in drawing the inference first.

The statute creating this agency does not give any jurisdiction over the representation of indigent that's on appeal.

It is confined in a --

Justice Felix Frankfurter: But I'm talking about still restricting it to the discharge trial court.

Mr. Bennett Boskey: Yes, that's first.

Second, the appropriations for this agency have been so negative that the agency hasn't been able to hire a staff to do the kind of job that they are ought to do in that (Inaudible) Murray.

Third, it isn't clear yet what the initial efforts are doing in the way of working some of reforms.

We all hope they were.

Justice John M. Harlan: Well, why can't as well, Mr. Boskey that perhaps within the area that this agency is to operate.

Participation in helping the indigent perfect the -- an application --

Mr. Bennett Boskey: To the trial --

Justice John M. Harlan: -- made to the trial maybe outside of responsibility.

Mr. Bennett Boskey: I think it maybe -- I think it is probably outside the responsibility that something intuitively is helping to improve.

Justice John M. Harlan: Well, that doesn't help at the time.

Mr. Bennett Boskey: I -- but -- and maybe that they can do something about improving.

Justice Felix Frankfurter: Mr. Boskey, the reason that I had hoped is that the right for my appealing that if the District Court -- if District judges are more alike to the nature of the problem, then they would shut off the refusal and we do not have to go upstairs.

Mr. Bennett Boskey: That's the hope we all share.

Justice Felix Frankfurter: Well, and that depends as the most of these things depend on the quality of the judges.

Mr. Bennett Boskey: Well, it's not just the quality Mr. Justice Frankfurter.

Justice Felix Frankfurter: I can say just.

That's the most --

Mr. Bennett Boskey: But their perception of what this Court really means in the Ellis and that's what they don't understand.

Justice Felix Frankfurter: I know, but we do know that on your figures a district judge is actually shed off at least a 180 degrees, I think.

Mr. Bennett Boskey: That's a tremendous number of cases.

Justice Felix Frankfurter: But -- but with one year.

Mr. Bennett Boskey: Now, many of them are 2255 cases which have a different kettle of fish because I would say far more of those are in fact --

Justice Felix Frankfurter: But, Mr. Boskey, it isn't what this Court need.

But Justice Brennan suggested.

You would think that there is -- the content of their mind would be different from this Court knows is effort -- and we mean it.

Mr. Bennett Boskey: I think there are ways of --

Justice Felix Frankfurter: I think it depends.

It dep -- we can say that or can say the same thing in -- in three pages or 30 pages.

It depends on the attitude and understanding and perhaps the pressure or the absence of pressure of time on the bottom district judges no matter how it can be saved.

The conscience this judge will face that a point is frivolous.

He will so determine which raises the question that you haven't discussed at all.

In my point of view, I could use the deal or have this canvass for the next two hours.

You don't tolerate the question whether the odd in the answers automatically grant appeal in every indigent case.

Mr. Bennett Boskey: Well, I --

Justice Felix Frankfurter: That what it gets the answer?

Mr. Bennett Boskey: I think, in fact, Your Honor, that if that were done, this system would work more economically.

It would save the time of the judges.

It would save the time of the bar.

Justice Felix Frankfurter: It depends on the statute of Congress also to be respected.

Mr. Bennett Boskey: There -- there is indeed and -- and while that statute is on the books, I think it behooves all of us to see if there is not some way of applying a statute sensibly so that it doesn't cripple the Courts and cripple the Administration of Justice in the way that it is now happening.

Justice Felix Frankfurter: But those are a lot of words.

But does it get down to that a district judge who doesn't want to be in adverse will automatically grants a certificate.

Mr. Bennett Boskey: He may not be required automatically the grant of certificate but --

Justice Felix Frankfurter: Well, but only psychologically do it automatically.

Mr. Bennett Boskey: But he -- he ought to be given some increased understanding and appreciation of the criteria involved.

And I feel that there are hopes for passing on that kind of understanding.

Justice Felix Frankfurter: There isn't -- there is no law of durability who can't make every -- every question that's raised in a criminal case appears important with respect to it.

Mr. Bennett Boskey: Well, I appreciate the compliment.

I hope that that isn't just what I've done here because the questions in this case aren't working cases.

Justice Felix Frankfurter: I quite agree with you.

Mr. Bennett Boskey: And they deserve attention.

Justice Felix Frankfurter: Nobody wants -- nobody wants it so then I.

This is a very serious problem but you can find it at the memo as I am that you -- you have a different job, I am whether the answer is to say in effect or have a -- have a say something which in effect will make every district judge automatically grant the certificate and chloroform(ph) an act of Congress -- a constitutional act of Congress.

Chief Justice Earl Warren: Mr. Boskey, your time was expired but in as much as we've taken up frankly all your time with questions so you may have five minutes in rebuttal --

Mr. Bennett Boskey: Thank you Mr. Chief Justice.

Chief Justice Earl Warren: -- if you wish to summarize your argument.

You may have five minutes also, --

Mr. Bennett Boskey: Thank you.

Chief Justice Earl Warren: Mr. Belcher.

Argument of Carl W. Belcher

Mr. Carl W. Belcher: Mr. Chief Justice, may it please the Court.

The Government does indeed characterize these arguments as frivolous but it does not do so in any personal sense.

We perhaps has do not need any personal slur on this opponent.

We are simply using the term which this Court has itself imposed as the legal standard in the Ellis case.

I am pleased to note that my opponent does not slur me or the system that is invoked here because he does not accuse us upstanding path since the Ellis case.

He does not say that there has been no effect or no reaction as a result to the Ellis case but he does of course say is that there has been a change and in proceeds to argue to the effect that these changes meaningless or at least it does not handle the problem.

I'm also pleased to note that he conceives that there is no simple solution to the problem.

The Courts in the District of Columbia, as the Courts everywhere -- Federal Courts do have this problem that was alluded to in the last few minutes that the statute passed by Congress is there and must be given difference.

And of course, the opinions of this Court must also be given difference.

And it place the court -- the Courts of the District of Columbia as the state from the other Federal Courts have their own special problem because of certain figures and statistics, which I hope to bring to your attention in a moment.

The Court of the District of Columbia has attempted to solve these problems as who made those attempts since the Ellis case.

And this system, if you want to call it that, I prefer it not call it system, this manner of handling cases is an honest attempt to handle this problem.

And may it please Your Honors as counsel for the Government to some 10 years in the Court of Appeals.

We had tried to make it work honestly not on the basis of an indigent si -- situation but also in non-indigent.

We have attempted to make the calendar in the Court of Appeals a robust calendar because the non-indigent, the wealthy are attached by counsel for the appellee with motions to dismiss, with motions to affirm, with motions that the Court orders a given party to show cause why the rules of the Court have not been followed and in every instances in which Rule 75 of the Civil Rules requires a concise statement of the points which are being brought forward on appeal.

That concise statement is screened for the purpose of seeing if the issues to be raised by the appellant can be delineated so that a motion to affirm or dismiss can be formulated.

And if that's possible, a motion is found.

Now, as to this petitioner, we need to consider him.

At the moment, he is in Lorton as counsel had said.

He's serving two sentences.

The one in this case is consecutive and depend upon a prior sentence in another case and an assault of a dangerous weapon conviction.

And in that prior case, he was sentenced to two to seven years.

That seven years has not expired.

In the present case, he was sentenced to serve 20 months to 5 years.

And the combination, the way they are treated is that he has a minimum sentence of two years and 20 years -- 20 months as a minimum, almost three years is the minimum, and a maximum of 12 years.

He is now, at the moment, is eligible for parole.

He has not applied for parole.

There has been no attempt to consider this individual for parole.

When he does apply, he will certainly be considered in the normal processes.

Justice Potter Stewart: Well, that's all I got to do with this.

This isn't -- this isn't a habeas corpus or 2255 proceeding where something might turn on whether or not he is serving the sentence which he is now.

Mr. Carl W. Belcher: I only -- only bring that up Your Honor because it is has been referred to by counsel.

And I point out that during the times, this Court considers what I -- I think is a serious problem that counsel agrees with it.

You do not have an individual who is waiting at the door to walk out.

Justice Potter Stewart: I do see your point.

You're arguing to the -- the fact that there is no great urgency in this case and that I suppose, therefore, that if we decide that a part of this case to Mr. Boskey's favor, we should deal no great compulsion to decide the merits as against to --

Mr. Carl W. Belcher: That's correct.

Justice Potter Stewart: -- remanding the Court of Appeals to determine the merits because in the meantime, this fellow is serving about sentence.

Mr. Carl W. Belcher: That's correct.

And my main --

Chief Justice Earl Warren: May get that last end point because he is serving what I - I --

Mr. Carl W. Belcher: A proper sentence.

He has -- he's now serving a sentence on another case entirely separate from this case and the --

Chief Justice Earl Warren: I -- I thought counsel said he -- he started five weeks ago to serve this sentence.

Mr. Carl W. Belcher: I believe that under the system that -- is being utilized, he is not.

There is some conflict between counsel.

My information comes from the Bureau of Prisons.

It is to the indrawn effect that this petitioner is now eligible to apply for parole.

Chief Justice Earl Warren: Of -- under this conviction?

Mr. Carl W. Belcher: Under a merger of the two sentences, the way they are treated considering both.He is eligible to apply for parole.

Chief Justice Earl Warren: Well, if he is eligible to -- to apply for parole, under these convictions, he must be serving -- he must be serving some time under it.

Mr. Carl W. Belcher: Well, I simply say Your Honor that he has not applied for parole.

Chief Justice Earl Warren: I know.

But suppose -- suppose we descended back to the Court of Appeals by the end -- by the time he should get back here.

He long seems to serve these 20 months, wouldn't he?

Mr. Carl W. Belcher: No sir, because his sentence in the first case is a seven year maximum.

Chief Justice Earl Warren: I beg your pardon.

Mr. Carl W. Belcher: His sentence in the first case was a seven year maximum and he perhaps to serve this good time on the minimum sentence which is some two years.

If he applies for parole, it is possible and he be considered favorably and would be great.

But as far as a mirror mechanical running of time, this man has a long way to go.

On the other case, not just this case but not on the other case, so that the thing which is keeping him where he is now, the first barrier is, his application in consideration for parole.

He can do it.

It maybe considered favorably but so far, he has not even applied.

My major point in bringing that up that all was simply that, irregardless of whether or not it is felt that one more of these issues which the Government frivolous within the legal standard of Ellis are considered to this Court to be not frivolous.

There is still is a system of -- I don't like the word of -- but a method which is a serious attempt to work out a very serious problem so that even if that issue is to cause a remand to this case, it is requested and is possible that this -- the method can itself be considered substantively by the Court in separate report.

Justice Felix Frankfurter: Mr. Belcher, this Court at least have -- by way of assumption though contingently, better word, contingently, we will have to consider the merits of the questions raised by Mr. Boskey.

Mr. Carl W. Belcher: That's great.

Justice Felix Frankfurter: Can't escape.

Mr. Carl W. Belcher: We --

Justice Felix Frankfurter: Nor in order

Mr. Carl W. Belcher: Even if you would have proceed to say that the method is a reasonable method for the local situation in the district (Voice overlap) --

Justice Felix Frankfurter: What do you mean by method?

I mean -- I mean the -- in order to determine whether the points that he urges by which he -- on the basis of which he was disallowed to go to the Court of Appeals, are of a quality legal solidity as to be called frivolous and that means at least on the surface, under the -- the law that surfaced considering the merits of this question.

I'm not going beyond that.

I'm -- that doesn't mean we should actually decide with what you say.

We do have to say that there's a specific gravity and -- and that thing on the specific gravity of these questions.

Mr. Carl W. Belcher: That is correct.

Justice Tom C. Clark: Are you acting as to decide them on merits or not?

Mr. Carl W. Belcher: Well, Your Honor, the particular points are involved in this case.

They're part of the case.

They do have to be praised as against the Ellis standard or standard of testing against the motion to affirm or dismiss.

They do have to be tested and that's a part of the contentions.

Justice Felix Frankfurter: Has it -- does a good reason for not deciding them, any of the certainly evidentiary questions that one would have to decide whether this, in the first place, what is their universal -- like well there is but -- but I don't know.

One have to decide whether they are local questions govern by local law and if they are certain to this Court, would embark on search inquiries and not the testing any of these questions are.

I don't know.

But the determination of whether they are or not in itself a problem.

Mr. Carl W. Belcher: That is correct.

That is correct.

And of course, we can say that --

Justice Felix Frankfurter: And this Court has again and again and hardly anything.

I don't know if it's a matter of plea or bargain cases as -- as this Court of conflict has in effect on local District Court of Columbia.

Question local.

Mr. Carl W. Belcher: That's correct.

And it's interesting to note, I will just going to get in a minute, that the part of the problem here is the volume of cases that some 80% of the cases in the District of Columbia are under the District of Columbia code.

And in that sense, they are local peculiar in that jurisdiction.

Chief Justice Earl Warren: Well, are all of the questions in this case, local law in the -- of the District of Columbia?

Mr. Carl W. Belcher: There is one -- one new question which has been brought forward in this Court for the first time.

It was not raised in the Court of Appeals which involves Title 18 of the United States Code 2314, Transportation of stolen property beyond the state.

Now, that one question, newly added in this Court, involves a statute of the United States Code in -- for that reason is not local or the opponent will immediately bring up of these are evidentiary problems which could across both codes and any kind of a statute.

Justice Felix Frankfurter: There's a question whether -- whether the testimony -- to my testimony in the first try should be read then in the sentence that surely a local question for evidence.

Mr. Carl W. Belcher: That's correct.

It - it would rise very often in the criminal cases on the (Voice Overlap).

Justice Felix Frankfurter: They are invoked in the same statement.

They may have their oath to do the law.

Mr. Carl W. Belcher: That's correct.

Justice John M. Harlan: I hope you always devote sometime at the question that you raised in your brief mainly assuming that these questions are not frivolous whether what was done here by the Court of Appeals is an adequate substantive record that would raise appeal.

Mr. Carl W. Belcher: I intend to go directly at that.

Justice John M. Harlan: And in connection with that, I wish to deal with the Lurk case.

Mr. Carl W. Belcher: I will be glad to Your Honor.

That is, as I understand it, is the principle reason this case is here and that's exactly what I intended to proceed now.

Justice John M. Harlan: Good.

Mr. Carl W. Belcher: May it please the Court.

This petitioner was given his rights under the general principles of the statute invoked Section 1915 of Title 28 is interpreted by this Court in several cases beginning with Johnson, Farley and the Ellis cases.

He has had these things.

He has said counsel assigned to him, very bad counsel who did act as effortless as he properly should have.

Secondly, he was furnished a transcript to the proceedings at Government's expense to a full and complete adequate transcript, and as I will show is we proceed along counsel himself has said that all the documents, all the testimony, everything you didn't do consider this case properly was use his terms at hand so that there was no deficiency in that sense.

Thirdly, he has had the benefit of extended written argument.

Your Honors will see that printed in the pages of this record in this Court in the closely space tight that these records are printed.

They initially filed a 20 page that is 20 of these record pages document.

This was after the materials were available to him.

And thereafter filed a document of some 23, 24 of this closely printed pages so that thirdly, he did have the benefit of extended written argument, and fourthly is we will show he was given at all of these things were given adequate and consideration of the issues raised by a three judge panel of the Court of Appeals.

The purport of the argument I'm about to make is to the effect that is if he is entitle to ignore more than these which he did have.

Justice John M. Harlan: Are the memoran -- the memorandum that he -- or the briefs that he filed in support of his application -- informal application here in the Court?

Mr. Carl W. Belcher: They're all here Your Honor.

And I intend to take them to you one by one.

I think that's the best way I can show what this system or procedures are about.

Chief Justice Earl Warren: Well, there is one thing -- one thing you didn't mention that they have the same right of petitioning here for assert with the same scope of review that he would have.

Have they considered his appeal and determine it on the merits?

Mr. Carl W. Belcher: We think it's exactly the same.

We think it is exactly the same as if a motion to affirm or dismiss have been made and granted in his case in the full record and everything to come to this Court be considered in exactly the same way.

His case --

Chief Justice Earl Warren: And what -- but here, on this kind of review, it's your contention isn't it that we're -- we're limited only to the question as to whether his -- whether his appeal is frivolous?

Mr. Carl W. Belcher: No, Your Honor.

Frankly, that in my opinion is a secondary issue here.

The primary issue is the way --

Chief Justice Earl Warren: What is the scope of our review here than its present time in this -- in this case?

You -- you say that we shouldn't reach the merits of the -- of the case and -- and if we think that the petitioner is correct in his -- his representations find him a new trial because you say that's a local law.

Now, if this was a paid case and it had been heard in the Court of Appeals on the merits, it would be right for our consideration on certiorari, would it not?

Mr. Carl W. Belcher: The same --

Chief Justice Earl Warren: Now -- now, in that -- in that sense, does -- does this man have all of the -- all of the rights and all the remedies that another man would have?

Mr. Carl W. Belcher: I think he does have, Your Honor, exactly the same.

This Court has --

Chief Justice Earl Warren: I'd like to have you explain this?

Mr. Carl W. Belcher: This Court has the full record here.

And as any Court -- this Court, when it sees an error which is, an error which can not be further elucidated by briefing and argument in the Court of Appeals which counsel cannot give anything more to and the Court sees the error of this Court as in the other Courts sort of funny noting or plainer can say so.

Chief Justice Earl Warren: May I -- may I ask this one more question.

You have -- you have indicated in your colloquy with Justice Frankfurter that the evidence requested is one solely of local law.

Now, it's your position, I think, that -- that even though we -- we feel that -- that we should take some action in this case that the limit of our actions would -- should be to return it to the Court of Appeals and direct them to give the man a hearing, is that right?

Mr. Carl W. Belcher: I think it's --

Chief Justice Earl Warren: Alright.

Now, but if this man had been -- had paid the fees and had been a -- a regular appellee, he would've have a hearing and the Court would've decided that question with local law.

And it would've come here to us on sort.

And we could then review the action of the Court when it comes to us in this posture but we can't review it in the same way, can we?

Mr. Carl W. Belcher: Your Honor, I think you can.

The only difficult between the two cases, as I see it, is in one, a difference is paid to a local law and the Court is exercising some restraint to where the end run result of giving difference to the Court of Appeals and the District of Columbia to work on its own solutions as to local law.

But anytime this Court sees a problem, local laws are not local law, which it thinks it should act upon because of the nature of the error.

I'm sure this Court would no longer feel restrained and that he would act upon the error which was disclosed in the record, be it local law or some other types of law if the need were the Court would act.

Chief Justice Earl Warren: (Voice Overlap) It's your position that there is nothing of that kind in this case.

Mr. Carl W. Belcher: Indeed, there is not Your Honor.

This case is representative of one -- one type of case as distinct from three other types of cases.

In his case, the appellant process did not include oral argument.

It includes the other facets that I've mentioned but they did not include oral argument.

The three types that I'm about to describe and distinguish do -- do include oral argument as a routine matter but not as many escapable part of the appellant processes.

And that would the escape would be at motion to affirm and dismiss show cause why appeal should not be granted for various reason.

Those things would take any case, wealthy cases, indigent case, any type of case from the end run result of oral argument.

Now, these are the three types of cases that are different.

All of the non-indigent cases as a routine but not inescapable end run objective would get oral arguments.

A second type of case, as a normal routine, but not inescapable result, we get oral argument.

It's the forma pauperis cases granted by the District Court.

And thirdly, there are cases considered by the Court of Appeals, petitions for forma pauperis considered by the Court of Appeals where the Court of Appeals does itself put it in the processes for attaining oral argument as a normal routine.

Those were the three types of cases which are different from the type of case that we have here.

Now, there are no statistics available that I know of but considering the Court of Appeals in and on itself, it is probably true that as many forma pauperis petitions from direct appeals do obtain oral argument as there are forma pauperis cases from direct appeals from the Court of Appeals that do not know whereas the oral argument thing as it should finally given in cases is approximately evenly balanced.

Justice Felix Frankfurter: (Inaudible) I don't quite understand the suggestion.

That's just that.

Mr. Carl W. Belcher: Well, the Court of Appeals has coming before it petitions in the fiscal year 1960, same year that my opponent is referred to had indirect appeal cases --

Justice Felix Frankfurter: Of criminal conviction?

Mr. Carl W. Belcher: Criminal Conviction.

43 of those and the Court of Appeals granted 13 of those petitions.

Justice Felix Frankfurter: In different view between informant of this.

Mr. Carl W. Belcher: That's right.

Now, some of those 13, under this system –-

Justice Felix Frankfurter: Are these all informant?

Are these 43 all informants?

Mr. Carl W. Belcher: These are direct appeal cases.

Justice Felix Frankfurter: I know.

But in forma pauperis?

Mr. Carl W. Belcher: In forma pauperis.

Justice Felix Frankfurter: Yes.

Mr. Carl W. Belcher: These are petitions in forma pauperis and direct appeal cases of a -- very peculiar type.

Justice Felix Frankfurter: Well, as soon as apparent, --

Mr. Carl W. Belcher: Now, some of the --

Justice Felix Frankfurter: --they'd have -- if they are the informers, they must have granted the right to appeal.

Is that right?

Mr. Carl W. Belcher: That's correct.

Justice Felix Frankfurter: And --

Mr. Carl W. Belcher: Now --

Justice Felix Frankfurter: -- there were 43 such?

Mr. Carl W. Belcher: 43 total.

Direct appeal case.

Justice Felix Frankfurter: I got a figure of the remand confused.

I thought Mr. Boskey gave us a figure that out of 180 applications, only 28 were granted.

Mr. Carl W. Belcher: The reason for that, there are some differences in our figures.

I have slightly different.

Justice Felix Frankfurter: Different in --

Mr. Carl W. Belcher: But --

Justice Felix Frankfurter: -- 23 and 28 is substantial?

Mr. Carl W. Belcher: Well, there were a total of 180.

We agree on that but there was approximately 137 of those that were not direct appeal cases.

They were collateral type cases.

Justice Felix Frankfurter: These are collateral cases.

Mr. Carl W. Belcher: That's correct.

Collateral type cases.

Justice Felix Frankfurter: And if --

Mr. Carl W. Belcher: And I might say --

Justice Potter Stewart: This 180 were -- were denied by the District Courts?

Mr. Carl W. Belcher: That's right.

Justice Potter Stewart: And that denied by the District Courts and that -- that denial by the District Courts, he go to the Court of Appeals and out of 180, the Court of Appeals obviously granted a sizeable number but not all.

Mr. Carl W. Belcher: But the --

Justice Felix Frankfurter: It was the size of the number of 28.

Mr. Carl W. Belcher: The -- the significant thing is that out of the 180 that went to the Court of Appeals, 137 were not the type that were interested in.

They were collateral type cases.

Justice Potter Stewart: And only some 43 were direct appeals of criminal conviction --

Mr. Carl W. Belcher: That's correct.

Justice Potter Stewart: -- in the District Court.

Mr. Carl W. Belcher: That's correct.

And I might say, the question that are raised, I think by Mr. Justice Brennan --

Justice Felix Frankfurter: You mean they weren't there?

Is they were -- the 43 were appeals to be merged by the court?

Mr. Carl W. Belcher: Were petitions then would -- and --

Justice Potter Stewart: Can't be denied by the District Court.

Mr. Carl W. Belcher: They have been denied.

Justice Potter Stewart: Right to appeal in forma pauperis had been denied by the District Court and then what was the fate of these 43 in the Court of Appeals?

Mr. Carl W. Belcher: Fate in the Court of Appeals was 13 granted and 30 denied according to my statistic.

I think Mr. Boskey would be more favorable to them.

Justice Felix Frankfurter: 13 granted?

Mr. Carl W. Belcher: 13 granted.

Justice Felix Frankfurter: 13.

And how many denied?

Mr. Carl W. Belcher: 30 denied.

I want to thank Mr. -- Mr. Boskey.

Justice Felix Frankfurter: (Voice Overlap) 15 must have been granted in collateral cases.

Mr. Carl W. Belcher: Well, the collateral cases, I'm not --

Justice Felix Frankfurter: If the total is 28 out of 180, had you break it down as between direct and collaterals and 13 direct were granted, that means 50 collateral granted?

Mr. Carl W. Belcher: That's correct.

Now, Your Honor, this -- this figure of 43 in direct appeal cases is characterized properly as cases in which the District Court had denied forma pauperis.

Now, the figure in which the District Court did grant forma pauperis, it's greater.

It's 60.

Justice Felix Frankfurter: 60.

Mr. Carl W. Belcher: 60.

So that there's no imbalance, one -- from that does not get the picture that the District Court is being arbitrary.

And it's -- it's denying more than the grants.

Are grants more than the denial?

Justice Potter Stewart: We're concerned here, in this case, only with the problem which arises when the District Court does deny the right to appeal in forma pauperis.

Mr. Carl W. Belcher: That's -- that's very true except I bring this -- this point out, I think, it's a part of my opponent's position that the Ellis case has no impact.

It's just -- has been of no meaning to the District of Columbia.

The District Court has founded.

Justice Potter Stewart: Well, let see if I get.

What you're telling is that in fact there has been 103, 60 plus 43 direct appeal applications were made from the District Court were lead to appeal.

In 60, this leave would granted and 43 had been denied.

Is that right?

Mr. Carl W. Belcher: That's correct.

Justice Potter Stewart: This is only in direct appeal and that -- how would you mind -- I think you suggest --

Mr. Carl W. Belcher: I think in the District Court, too.

Justice Potter Stewart: I beg your pardon.

Mr. Carl W. Belcher: That's in the District Court.

Justice Potter Stewart: That's what I'm -- answer to me.

Now you said that there's no relevancy as the collateral is (Inaudible) in this case.

Mr. Carl W. Belcher: Well collateral attack -- this Court has -- has indicated and it's clearly understood, presented a different problem.

A direct appeal is coming from the conviction.

This is the one review that everyone's interested in the case.

The feeling is should get a very careful handling at this posture.

But once his head had careful handling or at least the opportunity present a careful handling, then when it comes up later on the collateral attack.

It does not present the same problems.

Justice Felix Frankfurter: Therefore proportionately -- proportionately, according if you take the gross figures of Mr. Boskey, only one intent a little over, 10% of the cases were granted who has and you take one picture direct appeal figures a little less than 33% appeal granted.

Mr. Carl W. Belcher: Yes, Your Honor.

Justice Felix Frankfurter: Leaves that a substantial proportion of this.

Mr. Carl W. Belcher: That's right.

Now, a part of the understanding that this system is that it is not in this case it had, perhaps has been in another cases.

A problem of the indigent versus the wealthy but rather the -- the heart of this case is the way in which the indigent cases themselves are considered so that, in this understanding, the full nature scope of the problem, the Court should also get the still bigger picture in the District of Columbia, which is that there are some 1200 indictments returned -- criminal indicmtments in that jurisdiction each year, approximately 100 indictments each month.

Some two-third of those were disposed off without going to trial but of one-third, approximately, do go to trial and then in fiscal year 1961, this was a disposition of those cases.

373 went to trial.

They involve some 455 defendants.

And the convictions were in 310 cases that 362 defendants were convicted.

This is the potential for direct appeals each and every year in the District of Columbia Circuit.

Justice Potter Stewart: I'm sorry.

I missed that figure.

How many a year?

How many each year?

Mr. Carl W. Belcher: Alright.

In -- in fis -- on fiscal year 61 figures, it would be 362.

Justice Potter Stewart: Convictions in the District of Columbia?

Mr. Carl W. Belcher: That's right.

Individuals.

This is a potential.

Justice Felix Frankfurter: Does that cover all prosecutions on the either Title 18 US Code or the District of Columbia?

Mr. Carl W. Belcher: This is a gross total.

Justice Felix Frankfurter: Have all murders down to at the --

Mr. Carl W. Belcher: This is a gross total.

Justice Felix Frankfurter: Of every kind of offence?

Mr. Carl W. Belcher: Every kind of defense each except the municipal court work which is the misdemeanor jurisdiction.

This is the felony, the end run result.

This is like a picture.

Justice Felix Frankfurter: How many (Voice Overlap) in the US Attorney's office in the District.

Mr. Carl W. Belcher: How many --

Justice Felix Frankfurter: In deal, how many assistance do the US attorney's office dealing with criminal trial matter? Could you give us --

Mr. Carl W. Belcher: In -- in this Court, this section that does this kind of work, it'll run between 10 to 12 and other --

Justice Felix Frankfurter: Do they do the 300 cases?

Mr. Carl W. Belcher: Well, yes.

They do those cases --

Justice Felix Frankfurter: Are those -- are those convictions after trial?

Mr. Carl W. Belcher: Those are convictions.

This is the end run result.

They -- the --

Justice Felix Frankfurter: How many pleas of guilty in the District?

Do you have in mind?

Mr. Carl W. Belcher: It would run some 890 in that area.

Because, let's just say the gross -- the gross product is some 1200 per year.

Justice Potter Stewart: Are all these 362 its convictions after not guilty pleas?

Mr. Carl W. Belcher: After not guilty pleas and after the trial, either both of the Court by the jury and after the termination of any motion to set aside the verdicts and motions for new trial and everything else.

All -- all proceedings throughout the way.

This is the rebind product if you will --

Justice Potter Stewart: It is not a -- convictions based on guilty pleads at all.

Mr. Carl W. Belcher: None of it?

No, none of it.

This is a trial.

Chief Justice Earl Warren: Mr. Belcher in the -- in the large number of the States and in some of the very largest states of the Union, there's an absolute right to appeal and without the payment of any fees of any kind either for filing an appeal or for -- or preparing a transcript which automatic with -- with the appeal.

May I ask if in the District of Columbia, you're faced with any problems that are greater than those States are faced with?

Mr. Carl W. Belcher: I assume not, Your Honor.

It's -- it roughly a state jurisdiction.

Chief Justice Earl Warren: Yes.

Mr. Carl W. Belcher: There are the house breakings --

Chief Justice Earl Warren: So many states had have that for generations as to and I just wonder why it would be so such a terrible problem to the District of Columbia, if that possible here.

Mr. Carl W. Belcher: It could well be considered in that light, Your Honor.

But the problem here and the reason out here in reading this case here is because we do not have that type of legislation.

In its place we do have this section of national coverage starting in District of Columbia Section 1915 in which the Congress has provided the system which is (Voice Overlap).

Justice Felix Frankfurter: Do you happen to know what the potential burden statute is when the Congress certified the certification?

Well, that's -- that's true for us affecting it as a matter of --

Mr. Carl W. Belcher: It is.

It's a national --

Justice Felix Frankfurter: It's the national law.

Mr. Carl W. Belcher: That's correct.

Justice Felix Frankfurter: When will that have?

Mr. Carl W. Belcher: Your Honor, it's been a good number of years but the exactly what its origin is, I don't know.

Justice Felix Frankfurter: Is it the same in Ohio, in California, in New York?

Mr. Carl W. Belcher: No, sir.

In the Federal --

Chief Justice Earl Warren: Do you speak to the state law?

Justice Felix Frankfurter: No, no, no.

Chief Justice Earl Warren: The Federal Law.

Yes.

Mr. Carl W. Belcher: They are placed these figures to that then referring to.

You can directly glean from the brief in the Lurk case in the 1960 term and that was 669.

And -- I see, it's time for recess.

Chief Justice Earl Warren: Yes.

We'll recess now.

Featured:

Coppedge v. United States - Oral Argument, Part 2

Tue, 25 Sep 2012 22:33:26 +0000

Case:

Coppedge v. United States

Media File:

157_19611212-argument-2

Related Transcript:

157_19611212-argument-2

Transcript:

Argument of Carl W. Belcher

Chief Justice Earl Warren: -- continue your argument.

Mr. Carl W. Belcher: Thank you, Mr. Chief Justice.

Before the recess, I was just concluding the coverage of certain statistics and I would just like to add to that, that these figures are available to the Court from independent means, that is from the annual reports of the Administrative Office of the Federal Courts, also from the annual report of the Attorney General would give an appraisal to this problem and in addition, the brief in the Lurk case in the last term do contain these very particular figures that I have referred to, the 60 figure of being granted to the District Court to 43 in the Court of Appeals and those figures.

Now this petitioner, of course, was denied forma pauperis for the Court of Appeals.

But the issues in this case are not to be found in the granted column as opposed to the denied column because many of the cases in which the Court of Appeals initially considers under the processes here do eventually go on to become cases in which oral argument is granted so that there is a difference to be made in just a column choice.

Justice Charles E. Whittaker: Mr. Belcher.

Mr. Carl W. Belcher: Yes, Your Honor?

Justice Charles E. Whittaker: May I ask, what if (Inaudible)

Mr. Carl W. Belcher: The answer is he would have had oral argument and nothing else.

Justice John M. Harlan: Then how was the procedure here different (Inaudible)

Mr. Carl W. Belcher: The procedure here is substantially the same as it was in the Lurk case as I know it.

In the Lurk case, there was no --

Justice John M. Harlan: Is there any difference?

Mr. Carl W. Belcher: No difference that I could care to point to at this time.

Justice John M. Harlan: Well, is there -- the Lurk case, decided in what (Inaudible) --

Mr. Carl W. Belcher: If the Lurk decides that question and -- my argument on this procedure is no longer valid.

Justice John M. Harlan: (Inaudible)

Mr. Carl W. Belcher: As we understand the Lurk case, there were new issues presented to this Court which had not been presented to the Court of Appeals.

The Court of Appeals considered the judge that presided at the trial is a judge.

The issues raised in this Court were in terms of the Court of Custom and Patents Appeals as a court and it was on the basis of those new issues.

As I understand it, the Lurk decision was rendered and it was basically a decision that that new question which had been injected in the case in this Court should first be considered by the Court of Appeals.

So that in the Government's view, the Lurk case in no way passed upon the questions which are involved here.

And indeed, to support that proposition is noteworthy, I believe that it is the same day, Your Honor, that the Lurk case was decided in a way that I suggested it was, certiorari was granted in this case, and I suggest that the Court would not have granted certiorari in this case if it felt that the Lurk case, the decision at the same day was dispositive for the issue which I'm espousing here.

So that I believe the issue is still here before the Court --

Justice John M. Harlan: (Inaudible)

Mr. Carl W. Belcher: Well, I make the assumption, Your Honor, that the Court would not do a useless thing of having this case come off for oral argument.

Justice John M. Harlan: In the Lurk case, as a fact, the (Inaudible) consideration of the Court of Appeals (Inaudible)

Mr. Carl W. Belcher: That's correct.

That's correct.

Justice John M. Harlan: (Inaudible)

Mr. Carl W. Belcher: And it's sent back -- the difference is, Your Honor, it sent back a bigger issue -- a different issue really.

Justice John M. Harlan: Yes, for some instance (Inaudible)

Mr. Carl W. Belcher: That's correct.

Justice John M. Harlan: (Inaudible)

Mr. Carl W. Belcher: And for my purposes, it's not worthy that when the Court of Appeals got this new issue, Court of Appeals did allow forma pauperis in that case and they did come off for oral argument, I believe, before all nine judges of the Court of Appeals, sending it back, so that --

Justice Charles E. Whittaker: (Inaudible)

Mr. Carl W. Belcher: -- it was considered.

Justice Charles E. Whittaker: (Inaudible)

Mr. Carl W. Belcher: The procedure in Lurk was briefed and I believe argued by counsel in Lurk, but at almost, the outset of the consideration by the court in the Lurk case, we were confronted with this proposition that there was entirely new issue being presented for the first time to you, and that new issue had not been presented to the Court of Appeals.

As I understand the Lurk opinion, it is to the effect that that new -- new issue first presented here should be considered by the Court of Appeals, and that was the purpose on the remand.

Justice Charles E. Whittaker: (Inaudible)

Mr. Carl W. Belcher: We do have as a fifth issue of -- of merit.

We do have the claim that the trial judge failed to instruct the jury properly.

That issue was not raised first in the Court of Appeals.

Justice Hugo L. Black: But you're not suggesting, are you, (Inaudible) you wouldn't suggest that we refrain from passing on the -- whether the points that argued were frivolous in order to send this additional point back to --

Mr. Carl W. Belcher: No, Your Honor, I would suggest that all these issues can be considered by the Court here and be found to be frivolous as the Government suggests that they are -- that procedure can be fully reviewed and sustained.

The matter -- the matter of select --

Chief Justice Earl Warren: Mr. Belcher, may I trouble just one -- once more about the procedure.

In the Court of Appeals, do -- do these hearings such as petitioner got in this case come up on the regular calendar, and that -- do they have the -- the same priorities and -- and the same procedures that the cases on appeal have?

Mr. Carl W. Belcher: They have exactly the same procedures.

They do come up on a calendar.

It's a calendar which is called amongst the attorneys, the motions calendar in the sense that it comes up distinctive from the oral argument calendar and this calendar, for these cases, is considered by the court in chambers without oral argument in it.

As a result of this mechanical distinction being made, and because of the efficiency built into the processes, the actual results in the Court of Appeals are altered more expeditious in this kind of case than they are in a regular appeal.

Chief Justice Earl Warren: In other -- in other words, when a man filed a petition such as this, he gets a hearing and the decision as quickly as -- as a person would on the appeal calendar --

Mr. Carl W. Belcher: He does.

He does and often it is quicker, more -- more efficient.

Indeed that's the principal reason for this -- this system, is its efficiency, its enabled to handle a greater number of petitions and cases in a more expeditious way.

Now, as a matter of selecting cases for review, if Your Honors have noticed, some cases do not go through this review that the Court -- this particular case did.

The matter of deciding which cases will get the review by the transcript of proceedings is the heart of the issues in this case, and that process is best identified and understood by the record in this case.

As I suggested to Mr. Justice Whittaker earlier, the record is entirely here every pleadings of note that was filed in the Court of Appeals is put forth in a sequence here in this record.

And on page 1 of the record is the prisoner's own pre se petition for forma pauperis, and it's a well-done petition.

It's much better than the normal petition.

On the basis of that petition at record page 5, the Court of Appeals without waiting for the time to elapse for the Government to oppose the prisoner's petition, did appoint him counsel, Mr. Boskey was appointed by the order appearing on page 5.

As a result of his appointment, Mr. Boskey prepared a petition in support of the memorandum and support of the petition which begins on page 5 and which continues on, for some 20 of these record pages to record page 27.

And as I've suggested to the Court earlier, he was given a full opportunity to discuss the issues which were involved.

Record page 27 is the conclusion of the memorandum by Mr. Boskey and this conclusion I think is in support of the process which eventually followed.

And he concludes and I quote, “In the foregoing presentation, it's a substantial question to which appeared to exist on appeal so far as such a matter can be assessed in the absence of a transcript, but there may be various other substantial questions disclosed for the transcript.

Also, the transcript may well lead to a somewhat different evaluation” and he proceeds to say that different evaluation may result to the benefit of his client.

Implicit in the statement I would add is also the contrary to the effect that that evaluation might react contrary to his client.

And this is the basic proposition to the system that we're discussing, which is that criminal cases do have their roots so deeply embedded in the patch of the case as distinct from distinguishing cases, Presslor cases and that sort thing, the question of whether the facts support the legal arguments are so altered, determinative of the processes and issues, determined indeed whether or not this particular process, the review by transcript, as I term it, is a valid process or not a valid process, because that is the rock bottom of the consideration here.

Passing onto this record though, to show that full and complete consideration was given to this matter by the court, after Mr. Boskey's statement was filed, the Government on page 31, filed a very short document in which it conceded that the transcript was needed, but the concession was limited in it's purport to one of the three issues which Mr. Boskey raised.

Government in effect said that the indictment is not a valid issue that the disqualification of Judge Holtzoff is not a valid issue, but the matter of (Inaudible) and admissibility were his testimony is something that we do need to look at the transcript and suggested that the entitlement to an appeal be based rock bottom on what that transcript showed on that one issue, and suggested that Mr. Boskey after he received the transcript should again present a memorandum to the court based on that transcript of proceedings, having received it.

Mr. Boskey came back in the next several pages in which he talks about delay in the judicial process and suggests amongst other things that his client was entitled, as of the moment, to go to oral argument with his case despite the contention that the back record might well show to the contrary.

He also complained, of course, that he should not have to come forward at that point with the transcript himself.

Now the order of the Court of Appeals is note worthy.

It grants a transcript and in that sense it complies at least in part with the rule of the Ellis case, but the Court of Appeals ordered, which appears on page 34, is a response to this situation which it was confronted with.

It did not ask Mr. Boskey to come forward for the transcript.

Instead, it said to the Government, “You come forward with your transcript -- with your memorandum based on the transcript.”

Now, as I construe these proceedings, terminology is not there, but in effect, the Government was put to burden of showing cause in its next move after the transcript, showing cause based on that transcript why this case should not go to oral argument, and that of course is exactly what the Government proceeded to do.

But this one order, insignificant though it appears on its face, this order, on page 34 of the record which grants a transcript is the beginning and indeed the heart of this process which is challenged by my opponent.

He says, “Instead of getting only a transcript, I should've gotten forma pauperis which allowed me immediately to proceed to the in rem result of oral argument” and that which he did not want to have his case reviewed in the light of the transcript.

He wanted and instead to go into a posture where the implicit order of forma pauperis would put him in a position, put it in a route where it might not be looked at any further until the turn -- time of oral argument and he wanted his case in that position where it would not be looked at any further until the time of oral argument.

One other fact, I think, is significant about this order on page 34 that appears on its face, the final disposition in this case was a split decision of three judges in the sense that Judge Bazelon did note his dissent, no opinion but he noted this dissent.

The same panel that ultimately decided this case had entered this order.

This order which is at the heart of the process here in question is a unanimous order.

There is no dissent.

Chief Justice Earl Warren: How did you get another panel to decide that?

As I understand it, there was a split decision on whether he was entitled to appeal?

Mr. Carl W. Belcher: In forma pauperis?

Chief Justice Earl Warren: Yes, and then you say there was another panel to that?

Mr. Carl W. Belcher: No, I'm speaking about the same panel which had acted at this earlier stage.

At later stage, there was a split but at the earlier stage --

Chief Justice Earl Warren: Yes.

Mr. Carl W. Belcher: -- which is the heart of the screening review -- transcript review process.

Chief Justice Earl Warren: Yes, I see.

Mr. Carl W. Belcher: This was a unanimous panel and there was no split decision.

Justice Felix Frankfurter: Is there -- is there any light you would know as to whether, after they pass on motion in rem it comes to the final decree or judgment, the final judgment.

The judge who would vote -- who had voted to grant the petition to take the appeal just acquiescence in the judgment when the note is -- is (Inaudible) judgment.

I'm asking what they practice.

Mr. Carl W. Belcher: The practice is that they can do either two things.

Simply note --

Justice Felix Frankfurter: Not can't -- not what they can do.

I want to know what in fact is being done in this district.

Mr. Carl W. Belcher: In fact, they are doing it two ways.

They simply note their dissent or they are at liberty to.

And it's not unusual that there is a printed opinion at -- in the nature of a dissent which is attached to such an order.

Justice Felix Frankfurter: Yes, but my next -- my question is, when it comes to the formal final judgment that Judge Bazelon note that he dissented in the formal decree, in the formal judgment which is the judicial (Inaudible) of the review.

Mr. Carl W. Belcher: He does.

He does note his dissent at that time --

Justice Felix Frankfurter: That time, he doesn't (Inaudible), is that it?

Mr. Carl W. Belcher: Well, in this particular case, he did but not always, does he?

Justice Felix Frankfurter: I thought it's just --

Mr. Carl W. Belcher: In this particular case, that he did.

Justice Felix Frankfurter: I guess I'm confusing you by my obscurity.

I thought you've told us that he noted his dissent in the denial from the motion to grant -- to take the appeal.

He would have granted the motion.

Mr. Carl W. Belcher: That is correct.

Justice Felix Frankfurter: I thought you told us when it came to the entry of the judgment on that disposition, he did not.

Mr. Carl W. Belcher: He did.

At the entry of judgment, he did not -- had not at this earlier stage when the transcript was granted.

In other words, Judge Bazelon was in agreement with the process which is here in question.

He agreed to it.

He did not dissent from that process -- the process being a transcript review process.

He agreed that this case was a case of such nature and such facts.

The issue was raised where such that it indeed should go to a screening consideration by the Court based on the transcript itself.

Justice Felix Frankfurter: Oh, well, I misunderstood.

Mr. Carl W. Belcher: He did agree to that.

Justice Felix Frankfurter: (Inaudible)

Mr. Carl W. Belcher: He did agree.

Chief Justice Earl Warren: Mr. Belcher, I was wondering if in this case instead of -- of denying the appeal they had -- had granted it would the same panel automatically hear the appeal or -- or would have then go on some other calendars subject to -- to assignment to -- to any panel.

Mr. Carl W. Belcher: It would go on the oral argument calendar and that would be to reassign it to entirely new panel depending on the judges assigned at the given time.

Chief Justice Earl Warren: So the work that had been done between counsel and the -- and the Court on this special proceeding would probably be of no avail because it would go to another conference and he would have to -- counsel would have to write briefs and and argue again to the -- to the Court.

Mr. Carl W. Belcher: Well, the record is certainly there, and any illumination of the issues, the question on authority, all of that would be there in the record and would be useful, I'm sure, for the Court to have regardless to the fact that they -- one or all of the judges in the case were new, the case would be epitomized in such a way that a judge could understand it in a ready fashion.

Chief Justice Earl Warren: Well, is epitomized the same as any other appeal then, wouldn't it be?

Mr. Carl W. Belcher: Well, the basic spade work would have been done by this process.

In the regular appeal coming on for not having gone through this process, the spade work would have to be done initially.

Chief Justice Earl Warren: Oh I see.

But so far as the time and the court is concerned and the (Inaudible) of the court, it would be just as costly to the Government to have this appeal after this hearing as it would in an ordinary case.

Mr. Carl W. Belcher: In terms of dollars and cents, the money -- the bulk of the money as was suggested earlier has been spent because that's involved in the preparation of the court reporter's transcript.

But what is not considered in that evaluation is the time of the court, the time, for instance, of the oral argument such as we're having here, the matter that you do have court-appointed counsel, and you do have to give at least some differences to having them available for oral argument. The system here is based upon a -- chambers -- in chamber's consideration of things which can be efficiently organized and the cases can be considered in a -- in a way which is more susceptible to handling the volume of petitions in cases which they do have in the District of Columbia.

Justice Potter Stewart: The very point that Mr. Bazelon makes is that you don't have this (Inaudible) efficient streamline procedure in the case of appellants who can afford to pay the fee.

Mr. Carl W. Belcher: The difference is, in the nature of cases and it's in the nature of a judicial decision based on those cases.

Some of the indigent cases that Mr. Boskey talks about don't go through this process.

It depends upon the nature of the issues which are raised and the appraisal of those issues by the judges.

The judges seeing some issues and say that they're not dependent on transcript and they -- they may not probably be shown frivolous on -- on the basis of transcript and immediately set over for the oral argument calendar in passing that way.

In other cases, the court looking at the issues based upon the advocacy of counsel can say that these issues look as if they may well be disposed off in -- in the reading of the transcript and it's on the basis of a judicial decision in a particular case as to what the probabilities are as to a need for oral argument and a need for consideration of the case through counsel's oral -- orally arguing the case that a decision --

Unknown Speaker: (Inaudible)

Mr. Carl W. Belcher: -- is made.

That's correct.

That's exactly the system.

The only thing in this -- well, that -- that's correct.

I'll stop there.

Chief Justice Earl Warren: Then if they take -- if they come to this Court on -- on certiorari, what is open to us to decide?

Mr. Carl W. Belcher: The full case is open, Your Honor, because from here -- have only gone part way in this process, from here on in, it's based on the transcript that counsel does take an advocate's view, the Government takes a contrary view and the decision is made which is exactly the same decision as this Court or the Court of Appeals or any court makes when it passes on motion to affirm, dismiss, or to reverse or any kind of summary motion, all of which are provided for in -- in this Court's rules and in every court's rules.

Chief Justice Earl Warren: And they write -- write opinions in these matters?

Mr. Carl W. Belcher: They on occasion do write very likely opinions in forma pauperis cases.

Chief Justice Earl Warren: Normally?

Mr. Carl W. Belcher: In a normal case, it's certainly not as great a volume of opinions in this type of work as there are in the other kind of work.

The issues are different.

Chief Justice Earl Warren: Can this Court know all of the issues that this Court has passed on and -- and how they have passed on?

Mr. Carl W. Belcher: It can indeed.

It can know because counsel and the Government by the adversary process have come to grips on each of these issues in a way which is as meaningful as any case whether it was orally argued or not, because if a case is orally argued in the Court of Appeals, there's no court reporter present.

It's not taken down in the stenographic fashion.

It does not add to an understanding of the record.

Each and every court has to come back and look at the record, the same type of record which is here in this case.

What the position of the advocates was in the court and what the decision was in the court in response to those.

And this record is a meaningful record in that sense.

counsel for the Government came back in response to the order of the court, which as I have suggested, was in a nature of a show cause processes and did attempt to show cause in two pages while these issues in this particular case based upon the transcript of proceedings which everyone had before them were not issues of a substantial merit, that the record transcript of proceedings had indeed cast a new light on them as counsel have previously forecasted it might.

And in response to the Government's two pages, Mr. Boskey came back himself and said in a document, which begins on page 40 and goes for some 23 pages in this printed record and on these printed pages, what his issues were, how he took a different view of this transcript.

Now, for my purposes I must point out that on record page 40 is this concession that I appointed to, because my opponent has referred to it several times and he says on record page 40, these last document filed, accordingly the documents are now at hand for an adjudication of this appeal on it's merits in the same manner as if petitioner were an appellant not indigent.

He asked for this summary process in these terms and repeated in later phrase (Inaudible) later time.

Justice John M. Harlan: Where is that?

Mr. Carl W. Belcher: Record page 40, near the bottom.

Chief Justice Earl Warren: Mr. Belcher, I'm afraid we've taking too much time on procedure.

I wonder – I wonder if you could get now or soon through the questions to whether -- whether this Aaren -- the issue on the Aaren testimony is frivolous or not.

Mr. Carl W. Belcher: Yes, Your Honor.

I'll be glad to come to that issue immediately.

The Artis' testimony in the first trial was sworn testimony and it was taken under oath.

Artis was physically unable to appear in the second trial.

At the second trial, counsel took a position --

Chief Justice Earl Warren: What was the reason for it?

Was he mentally incapacited -- incapacitated he had a deteriorated --

Mr. Carl W. Belcher: He was certainly physically incapacitated and the – the jury was told that his medical history did show the mental picture also.

The jury was told that fact in connection with the presentation of this argument.

Chief Justice Earl Warren: Was he schizophrenic?

Mr. Carl W. Belcher: Schizophrenic condition.

Now, the counsel's position at the trial level was I believe different than it is here.

At the trial level, he did not want Artis' testimony to come in at all.

And as I understand him now, he -- he's not making the same argument.

He's not saying that Artis' first testimony should not come in because of its merits or demerits.

They say in perhaps in a total record of the case, considering many and factors that they should not come in, but that's not the argument he advanced in -- in the trial.

The trial was he said is a pure and simple direct proposition of law.

Artis' testimony should not come in because I don't have the opportunity of giving it the second go around cross-examination and the District Court says, “The cases are against you” and indeed they are.

The Mattox case in this Court is directly against that proposition and counsel doesn't really argue against the Mattox case at this time.

Now, the second reason which was offered in a trial level for rejection of Artis' testimony was the fact that this document, which I have in my hand and which on record page 22, was now in counsel's position.

And it's signed twice as counsel said by Artis.

Now, the proposition advanced at the trial level, as distinct from here, was that because of this document, Artis' sworn testimony at first trail should not come in, the earlier testimony should not come in.

As I understand his argument now, his main argument is to the effect well, the first trial testimony should come in but this document also come in.

Chief Justice Earl Warren: But he did offer that document?

Mr. Carl W. Belcher: He offered this document in this way, he said to the Court, “I have here a document which is signed by Artis” and the Court in effect said, “Where did you get it?”

And he said, “Well, I'm not sure how I got it.

I've found it in the records and files which I got from one of the several attorneys which had represented this petitioner on an earlier trial -- in the earlier trial, or earlier proceedings, but I don't know which file it was.

I don't know which attorney gave it to me, but I have found it here.”

Now, this was about the sum and total of the statements made by counsel.

Now the -- the initial decision by Judge Holtzoff was to the effect that, “Well, if it's written up in Artis' handwriting and if it is a valid document and all, I'll let them both go in, I'll let the sworn testimony before the jury in the first trial.

I'll let your document go in to the evidence also.”

But, later on, Judge Holtzoff, in actually looking at the document, found that it was -- number one and that no continuity was shown for the document.

It just suddenly appeared, so to speak.

Some question but at least it could have perhaps been shown whether Artis signed it or not, but it's not a dated document.

No tab appears on it.

It could well have been, we suggest, and have in our brief, that this document was signed by Artis before Artis' trial in the first testimony in the first trial, so that his testimony represents the latest and the best.

And if it were indeed in the files of one of the other counsel's, it perhaps could have been used if they had saw fit to do so to impeach and discredit Artis in the first trial.

Justice Charles E. Whittaker: (Inaudible) as a matter of law, that kind of a statement would be admissible.

Mr. Carl W. Belcher: Your Honor, I --

Justice Charles E. Whittaker: I can see how it would be a ground for a motion to continue the case to give an opportunity to take this man's deposition where both sides would have an opportunity to examine it.

But could it be, assuming even that it's later than his original testimony on the first trial, could it be competent as a matter of law?

Mr. Carl W. Belcher: That's exactly the position that the Government takes here, that under no circumstances could it be admitted and this is a -- the impediment in the argument of counsel.

He relies on the dissent in the Mattox case and the Mattox case says that it has to be a valid and proper document and this doesn't qualify even under the dissent because --

Justice Charles E. Whittaker: -- because if that were competent, then all one would have to do to render incompetent, prior trial testimony would be to get a statement of the witness (Inaudible)

Mr. Carl W. Belcher: That's exactly right, Your Honor and that's a -- basic position of the Government that this document ought to have something to back it up, something to support this thing.

So that the mere fact that a signature appears on something that's not even holographic, it doesn't entitle to weight -- actually a weight given to such documents or not.

The Will case, the mere fact of signature, for instance, does not qualify it on the Federal shop book rule.

It doesn't qualify under any system that I know for the admission of evidence.

So that the document as such is -- is first of, not admissible on its own weight, but even if it is admissible on its own weight, it certainly doesn't have end run result that counsel contended for in the trial court as distinct from here, which his contention be to exclude the sworn testimony of Artis in the first trial.

Even if it goes to the first, it doesn't go to the second and the second and latter which was the barring of Artis' testimony in the first trial was what counsel sought in the first trial.

And that matter was disclosed by the transcript of proceedings and as I say, this is an example in support of the transcript review process which is the main issue I think in this case, a look at the transcript of proceedings and not a very hard look.

It doesn't take very long to ascertain the fact that counsel, when he said to the Court, number one, he want to put up -- to exclude Artis' sworn testimony in the first trial, but counsel immediately at the -- almost the outset of his introduction, he said to the court, “I can't vouch for this document or in effect said that I can't vouch for it because I don't know where it came from.

I don't know how I got it.

I just -- I can't say anything about it except that it's here and scrolled on it in two places are -- what appears to be or at least what might be the signature of Artis.”

Now, those matters appeared from almost a cursory reading from the transcript of proceedings.

And this, I think, is a point and a strong point that does support this preliminary screening by a look at the transcript and that's the system or the process or the -- the way in which the Court of Appeals for the District of Columbia does attempt to handle its volume of cases.

Justice John M. Harlan: Going back to your first position, is this the fair statement of what it is that -- we should look at this as if the Court of Appeals at the final submission of this matter on the briefs had said, “Motion for leave to appeal in forma pauperis granted in view of the extensive briefing that this case has received we find that oral argument as unnecessary and therefore the case need be docketed, the appeal is dismissed or the appeal is affirmed.”

Mr. Carl W. Belcher: That's exactly right Your Honor.

Justice John M. Harlan: That's the essence?

Mr. Carl W. Belcher: That's exactly the essence of it and one may wonder or why isn't the order of the Court of Appeals, as Your Honor phrased it, rather than being in terms of a “denial of forma pauperis.”

Justice Felix Frankfurter: Well, now I suppose -- suppose now on suppose this is sent back, suppose Mr. Boskey prevailed and sent back to the Court of Appeals and that for all I know, (Inaudible) may have taken down Mr. Justice Harlan question which he just put to you as a part of elucidation, I'd better assume that the judges of the Court of Appeals as they unlikely read, when I say (Inaudible) and say, “Well, let's wait to deal with it in the future”, and the only remedy open to this Court would be say -- would be to say that Court of Appeals is evasive about that.

And they must have a full dress further argument, further briefs (Inaudible) etcetera, unlike what this Court does in dealing with ICC and other cases on jurisdictional statement and disposing of it on the jurisdictional statement, is that right?

Did I make a correct analysis of what is likely to happen, or it may happen I mean?

Mr. Carl W. Belcher: Your Honor, I think what is likely to happen upon seeing the --

Justice Felix Frankfurter: It's all on the assumption, all in the assumption that I followed what you've said, that you say in effect, yes to the question that Justice Harlan put you --

Mr. Carl W. Belcher: Your Honor, I --

Justice Felix Frankfurter: -- namely, that the Court of Appeals had in fact canvassed this ground and in taking this formula disposable.

Mr. Carl W. Belcher: Your Honor, I think the result of -- the knowledge of this question would be that -- it would be said that the problem is being understood because the Court of Appeals in endeavoring to give weight to this statute of Congress, Section 1950 has felt that it must -- in giving weight to that statute and yet following the Ellis case and earlier cases, later cases, merged those two propositions together so that the order which it enters is in terms of the denial forma pauperis, rather that summary affirm or summery reversal as counsel asked for in this case.

It's -- it's the middle ground and it's caused and compelled by the statute.

Justice Felix Frankfurter: But you indicated early in your argument that the Court of Appeals has been responsive to this Court's opinion in Ellis.

Mr. Carl W. Belcher: It has indeed.

Justice Felix Frankfurter: Therefore, I wish you would tell us, what if -- what its conception was before Ellis and what you concede to be its conception now after Ellis?

Mr. Carl W. Belcher: If Your Honor please, the problem that Ellis was presenting was whether or not clearly frivolous would have the affect of -- of clogging its calendars, putting such burden on it that it could not handle it.

This system that we've been discussing is the response to Ellis.

Thank you, Your Honor.

Chief Justice Earl Warren: I'd like -- I'd like to ask one more -- one more question Mr. Belcher.

I'm interested in – in this Aaren's testimony to this extent.

The -- the authority that the prosecution has to read the testimony of witness at a former -- former trial is an exception to the general -- general rule, and I just wonder if there are no circumstances, where there is no way of testing the credibility of the witness at the second trial, if counsel didn't have a right to have the judge, who was the same judge trying the -- the second case to insert in the record the same comments concerning the credibility of the witness that he made at the first trial.

Now at the first trial, Judge Holtzoff said that, he called it very confusing so forth and then he ended up saying that no jury or no judge would convict any man on the testimony of Aaren and in the second trial, we have just a testimony of Aaren but no such comment by the judge and no opportunity on the part of the defendant to attack the credibility of Aaren.

Do you think that it's frivolous for -- for a defendant to insist on a review that question?

Mr. Carl W. Belcher: Your Honor insofar as the -- the question deemed simply with the statements of the judge, I point that in this case the -- the best thing that counsel could hope for or would want in this direction would be the cross-examination of Artis in the first trial because this is the rock bottom of the foundation from which the -- the judge's statement flowed and if there are proper statements, then the same response would flow from any reading or hearing of that testimony.

Chief Justice Earl Warren: But Mr. Belcher --

Mr. Carl W. Belcher: And -- and in that cross examination --

Chief Justice Earl Warren: Yes -- we'll, you go ahead finish please --

Mr. Carl W. Belcher: Now that cross-examination did come in, the jury heard it linked, all of it.

Chief Justice Earl Warren: Yes.

Mr. Carl W. Belcher: So that I would say that, if the -- if the remark is something that should be told to the jury, the jury would have had the exactly the same reaction from having heard the testimony itself, the cross-examination, and it did in the prosecution.

Chief Justice Earl Warren: But -- but Mr. Belcher, the judge have the right to view the witness on the stand.

He did view the witness on the stand saw the manner in which he testified, his attitude, and so forth and having seen that, he -- he said to the jury in that first case, that no jury or no judge would ever convict a man on the testimony of -- of this fellow.

Now, it may not -- if -- his -- his judgments might not have been formed by the precise words that the man used in answering the questions, it might have been used by his demeanor or his attitude and the various other things that can come into consideration, none of which, none of which the defendant could probe on the second trial and here you have a man who -- who has deteriorated since the first trial to such an extent that he's in a mental -- mental hospital and do you think it frivolous for the defendant to raise that on his appeal?

Mr. Carl W. Belcher: Your Honor, I do think it's frivolous and my reasons and I concede, Your Honor, does have a very valid point that coming from the judge or at least someone who has seen the personal appearance of the witness does make a difference, but they have both here.

On page 39 -- 139 of this record, is the trans -- is a testimony and statements of one who did see this witness testify and the person -- the witness who testified before the jury and described it is the attorney for this petitioner in the first trial.

The attorney's name is Mr. Deats, Mr. Deats is testifying and he goes at some length to describe what type of witness, and what type of the individual Artis was.

Now --

Chief Justice Earl Warren: He is an attorney for the defendant?

Mr. Carl W. Belcher: Attorney for this defendant as I recall in the first -- first trial, but he's testimony only goes to the -- to the effect of what type of witness Artis was.

What is his personal appearance was?

And Mr. Deats goes at some length that he -- he certainly crystallizes it on page 139, and Justice Clearway as clear way as Judge Holtzoff did in the first trial and Mr. Deats' crystallization is this, “I couldn't honestly say that I believed Artis -- I wouldn't believe Artis under any circumstances.”

Now that --

Chief Justice Earl Warren: But he's the attorney for the defendant?

Mr. Carl W. Belcher: He -- he is the attorney --

Chief Justice Earl Warren: You can hardly -- you can hardly equate that to -- to an observation by the judge, could you?

Mr. Carl W. Belcher: Your Honor the observation for the judge comes in which supports this proposition, I think, is the equivalent, it's not the same, but it's the equivalent, when the judge and the -- and instruction to the jury in the second trial says that all accomplices, and Artis is one, “You should scream with care and caution.”

And when a judge in instructing the jury this is not comment -- as correlate (Inaudible) amongst other facts and matters that occurred during the course of trial, this is the supreme moment, as far as the jury is concerned here in the judge and when in that moment, and the judges -- the court -- the jury rather in all of them are giving all of their attention to the judge and the judge says, “A fellow like Artis who is an accomplice, you should look out with care and caution.”

Chief Justice Earl Warren: But he also follows that with another instruction which is peculiar -- somewhat peculiar to the District of Columbia in which he says that they may if they believe the accomplices convicted defendant without any corroboration whatsoever.

Mr. Carl W. Belcher: Your Honor, he certainly does follow it.

I -- I would only take exception with the word “peculiar” because I think counsel in arguing that point in his brief points out in a footnote that each and every numbered Circuit, and he goes to Circuit number one, Second Circuit, Third Circuit and right on down through the Tenth Circuit, as I'm understanding from he's own footnote and in petitioner's own brief, is to the effect that every Circuit comes to the same conclusion.

The judge certainly followed with the comment, the only thing I can say is that every Circuit without exception as I know is following that -- that situation.

Chief Justice Earl Warren: Very well.

Mr. Boskey.

Argument of Bennett Boskey

Mr. Bennett Boskey: Mr. Chief Justice to take the last point first, this Court many times has commented on the difficulty of seeing something from a cold record.

Now, in a criminal case, when you read the cold testimony from a prior trial to the jury, all those difficulties are present.

This judge had been present in the courtroom.

This judge had seen the demeanor of the witness.

This judge had formed an impression very unfavorable to the witness and that -- that it's highly prejudicial to this petitioner that the judge's impression not be given to the jury if this testimony was to be admitted at all.

Justice Charles E. Whittaker: Let's see if I understand, is that to say that a judge who was trying a case the second time is under a duty when testimony of the witness is being read on the second trial, is under a duty to give to the jury his impression of the witness who had testified in the former trial?

Mr. Bennett Boskey: Mr. Justice Whittaker, it depends, I think, on the circumstances of the case.

In this case, where the judge was the same, where safeguards were essential to protect the right of confrontation, where the hallmarks of lying was so apparent and untrustworthy, where the judge had formed such a fixed impression from the first trial, he fell short of his duty and not condemning that impression to the jury.

Now, it's conceivable than onto other circumstances, in other cases where these facts aren't present, one might reach a different result.

But that isn't this case.

This is a most compelling case.

Justice Felix Frankfurter: Mr. Boskey the rule that invoke quite rightly that it's one thing to have trial, a like trial, it's another thing to get it and see to cover this subject, brown paper book, that's (Inaudible) because what -- what it amounts to is very often -- because I'm concerned in the criminal fields in most of time, things have blown up all out of perspective in relation to the live proceeding, concentrated, and give the significance and color and eloquence, and form, that this entitles him to undercut everything else to (Inaudible).

Mr. Bennett Boskey: Well, Mr. Justice Frankfurter, I'm not answerable for what happens in other criminal proceeding --

Justice Felix Frankfurter: I know your not, but this case.

Mr. Bennett Boskey: -- and other criminal fields.

This is not such a case and the burden of my argument has been that this is not such a case.

Mr. Justice --

Justice Tom C. Clark: (Inaudible)

Mr. Bennett Boskey: One -- one of them he did not make to the jury.

Mr. Belcher, I think too willingly exceeded to Chief Justice's statement on that point.

The one in which he said at the first trial, “I wouldn't send, no judge would send this man to the penitentiary on the basis this testimony was not the statement made to the jury.”

The statement he made to the jury at the first trial was that the witness was confused on the witness stand.

Neither statement would he make the jury in this trial even though expressly by counsel and even though in this far the specific said references of the transcript of the first trial where he had made the remarks were brought to his attention.

There was nothing inadvertent about this.

It was expressly brought to his attention.

Justice Tom C. Clark: (Inaudible)

Mr. Bennett Boskey: Yes.

Chief Justice Earl Warren: When was the other statement made, Mr. Boskey?

Mr. Bennett Boskey: It was made in a --

Chief Justice Earl Warren: In what connection?

Mr. Bennett Boskey: It was made in connection with a colloquy with counsel when I think the judge was trying to speed up the trial of the first case a little.

He thought it was going slowly and he was trying to find out how much the Government was really going to rely on in Artis' testimony in the first trial.

Chief Justice Earl Warren: It was going in the course of the trial?

Mr. Bennett Boskey: Oh yes.

Chief Justice Earl Warren: -- the statement of counsel?

Mr. Bennett Boskey: In the course of the trial after he have heard the witness.

Chief Justice Earl Warren: Yes.

Mr. Bennett Boskey: Because he was trying to move the trial on and it's in the record, there isn't any question that he said.

Justice Tom C. Clark: (Inaudible)

Mr. Bennett Boskey: The other within his instruction to the jury at the case trial.

Justice Tom C. Clark: (Inaudible)

Mr. Bennett Boskey: Yes.

Justice Felix Frankfurter: How much leeway do you think it's proper for us or perhaps is unwise -- I don't regard those judge as my model of (Inaudible), even an unwise judge telling the jury his impression so long as he doesn't confine them or encourage them.

Mr. Bennett Boskey: I think a considerable leeway and I think also --

Justice Felix Frankfurter: We and the federal courts, I know what state rule is.

Mr. Bennett Boskey: I think a considerable leeway that in the circumstances in this case, he had a very special kind problem that doesn't arise very often about the unavailable witness.

So he -- he personally knew he is not a good witness.

And he didn't do a thing to protect the defendant's rights here even tough repeatedly asked.

Oh I see my time has expired.

Chief Justice Earl Warren: Do you have -- do you have one more statement to make that to -- to --

Mr. Bennett Boskey: I have one more thing I did want to say.

Chief Justice Earl Warren: You may -- you may raise --

Mr. Bennett Boskey: The point question was raise, I think, during Mr. Belcher's argument concerning whether all these are questions of local law and I would say in response for that that most of them are not questions of local law at all.

If you look at the table of contents of this brief, you'll see that the grand jury points are not points of the local law at all.

The evidence points are largely points not of local law with some, I would admit, had mixture of local law.

But at the same time, they stem out of decisions of this Court, which I think have gotten the law of -- on the wrong track.

The Mattox -- old Mattox's decision in 156 U.S. which Mr. Belcher I think in response to Justice Whittaker's decision said the Government supports that decision.

The fact is the Government doesn't say a word in its brief in support of that decision.

And if that's the Government position, it hasn't given the Court the slightest help on why there's any rationality on that.

And in my brief, I said that the dissent of the Mattox case is correct.

I say that furthermore that the Uniform Rules of Evidence bears out on that the -- which had been approved by the National Conference and Commissioners on Uniform State Laws by the American Bar Association and by the American Law Institute.

And specifically Mr. Justice Whittaker, in answer to the question you have raised, why under what circumstances this document could have been admissible anyway.

Rule 65 of the Uniform Rules of Evidence cited in reply brief is clear and explicit.

It's dealing with exceptions to the hearsay rule and first trial testimony is such an exception.

And it says, “Evidence of the statements or other conduct by a declarant inconsistent, with a statement received in that evidence under exception to Rule 63, is admissible for the purpose of discrediting the declarant though he had no opportunity to deny or explain such inconsistent statement” and it says this is the modern rule in the comment accompanied.

Justice Charles E. Whittaker: Do you think that's applicable to this situation for (Inaudible) simply ex parte, awkward for receiving evidence a signed statement to impeach the testimony given in a former trial?

Mr. Bennett Boskey: I think it is clearly applicable that if they wanted to go ahead with the FBI check of the handwriting, counsel give them every opportunity to had any other effort in one -- have wanted to make any other effort to check the source of the statement it could easily have been done, but that was cut off because four times, Judge Holtzoff said, “I won't admit it.”

Justice John M. Harlan: I'd like to ask you one more question if I may Mr. Chief Justice's permission?

Chief Justice Earl Warren: You may.

Justice John M. Harlan: Assuming you have been advised by the Court of Appeals that they were treating this application in a way the Government says that they affect (Inaudible), apart from any protest that you might have had that you are being deprived with that course of procedure of oral argument, was there anything more that you would have wished to submit to the Court of Appeals in the way of briefs or authorities than what you had submitted?

Mr. Bennett Boskey: Yes, I would have wanted to submit an argument more on the merits on the grand jury point where I have said in my memorandum several times that it was clear, I had a substantial question that the development of it could have wait the argument on the merits and the briefs on the merit.

Justice John M. Harlan: That was stated in your memorandum?

Mr. Bennett Boskey: Yes and there were the things I would have wanted to do.

Mr. Belcher said counsel had come to grips on all the points.

The Government never dealt with two of these points in the Court of Appeals.

The corroboration point came up afterwards.

It was in my memorandum to which the Government never filed a reply.

The Government and the Court of Appeals never dealt with the point relating to views or comments by the prosecutor.

Chief Justice Earl Warren: Mr. Boskey, may -- may I ask you and just to briefly recapitulate, if you will, the things that a defendant in the position of your petitioner here has been deprived of by reason of the fact that he didn't have a -- an appeal granted to him.

Mr. Bennett Boskey: I shall be glad to, Mr. Chief Justice.

First, he's been deprived of an opportunity to designate a record which would be on orderly record on appeal.

You can't do that until you get an order allowing you to appeal in forma pauperis because the District Court won't receive your designation and send the record up to the Court of Appeals.

Now, does that matter or doesn't?

There are some cases where you have a very simple record, it won't matter.

The Government says in the footnote what doesn't matter because the Court of Appeals goes and gets the record anyway.

Well, I've seen some of the records they get, I don't what they do with them, but there are bundles of papers.

They are full of subpoenas and other irrelevant documents.

There's been no effort made at that stage to sort them out, designate them, and put before the Court of Appeals where they ought to be there, that's just the beginning.

Second, we were deprived, as we made clear of the full briefing on the merits.

Now, it's true there are two preliminary memorandums here, neither was to be conclusive, neither involves the development of these points as they should have been developed in the full brief on the merits, although steps were made in that direction.

I might say, if counsels feel that they are under a burden to write full brief at a preliminary stage it seems to me a very difficult burden to impose on counsels and directly contrary to what Ellis says which is the no preliminary showing of merits required.

Third, we were deprived of full oral argument in the Court of Appeals and in fact we were deprived all oral argument in the Court of Appeals.

This motion, as I think it's now become quite customary in the Court of Appeals, was not put on the argument calendar.

So we never had our argument on the Court of Appeals.

We never came to grips with the judges who were passing on the case.

We didn't know how they where looking at the documents.

What was on their minds?

What kind of a case we can make to it?

Fourth, we were deprived an adjudication on the merits in the Court of Appeals.

We don't know what the Court of Appeals decided.

We don't know what they considered.

We don't how they considered it.

We don't know whether they considered it in concert or singling.

That is not the treatment which have (Inaudible) appeal gets in the Court of Appeals, and that's what we are entitled to.

So that if after all of that and we had that kind of treatment on the merits, we then wanted to file a petition for certiorari.

This Court then wouldn't have had any difficulty knowing what the Court of Appeals had and hadn't done.

Chief Justice Earl Warren: Thank you.

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