Cases by Issue - Retroactivity

Schriro v. Summerlin - Oral Argument

Fri, 09 Jan 2009 14:49:08 +0000

Case:

Schriro v. Summerlin

Media File:

03-526_20040419-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of John P. Todd

Chief Justice Rehnquist: We'll hear argument next in No. 03-526, Dora B. Schriro v. Warren Wesley Summerlin.

Mr. Todd.

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

The rule this Court announced in Ring did not change what is to be decided.

It only changed who decides.

It did not make any conduct... it did not decriminalize any conduct, nor did it make any defendant ineligible for the death penalty.

We agree with all the State and Federal appellate courts that have looked to determine whether Apprendi or Ring should apply retroactively and concluded that the Apprendi/ Ring rule is not the sort of ground-breaking rule that overcomes this Court's Teague bar.

Justice Ginsburg: Mr. Todd, could we go back to what you opened with, that you said this is just a... and you emphasized this throughout your brief... it's only a who decides, not what.

But I thought that the notion in Ring is that it adds elements to the offense that were not there before.

So now you have aggravating factors is an element of the offense, and by so characterizing it, other things happen.

It has to be proved beyond a reasonable doubt on the aggravating or the other aggravating factors.

You would have whatever you have to prove elements; that is, you... the confrontation clause would apply, everything that goes with making it as part of the substantive crime.

Is that not so?

It's not just a question of, well, before it was the judge and now it's the jury.

Because it's part of the substantive crime, other things go along with it too, don't... don't they?

Mr. Todd: Justice Ginsburg, my understanding of this Court's holding in Ring was that it applied the Sixth Amendment jury guarantee as... as this Court recalls, Arizona already found, beyond a reasonable doubt, this... these particular aggravators and that it applied it to... for purposes of finding these... these aggravators.

It... it didn't change the substantive reach of the statute.

Those...

Justice Ginsburg: Well, let me give you a concrete example.

The judge relied on the presentence report in... in this case.

If the... if it had to be found by the jury, if the aggravating factor had to be found by a jury beyond a reasonable doubt, would that presentence report have been admissible?

Mr. Todd: Well, Your Honor, the judge in this particular case did not rely on a presentence report to find either of the aggravating circumstances that he found.

He relied on the trial testimony to find the... that the crime was...

Justice Ginsburg: Well, just let's say that the judge could consider, or would you concede that if the judge could make this determination, that the judge could, and judges routinely do, look at presentence reports?

Mr. Todd: Not under Arizona law, Your Honor, that the... the aggravating circumstances that are... that are present in Arizona law are not the type that would be... you could rely on a presentence report to find because Arizona law doesn't permit hearsay evidence to establish the aggravator.

But the... the key question... I mean, the key fact is that the underlying conduct, the... has not changed at all, that the aggravators are the same today as they were before Ring.

The... it has the conduct... the reach of the statute hasn't changed.

All we're talking about is applying the Sixth Amendment guarantee to these aggravators that the Arizona put into their sentencing statute as a result from this Court's opinion in Furman.

Justice Kennedy: Was it clear under prior law that the aggravators had to be found by the judge beyond a reasonable doubt?

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

Yes, Justice Kennedy.

Justice Kennedy: Was that in the statute or the supreme court decision?

Mr. Todd: Supreme court decision.

Justice Kennedy: Thank you.

Justice Breyer: It's sort of like a mixed case on the substantive procedural part.

It's... the argument that it's substantive, which is... imagine you have a statute that says if you use a gun in connection with a drug sale, it's a crime.

Justice Souter: All right?

Justice Breyer: And then this Court says that doesn't mean the drug in the... the gun is in the attic.

you know, the gun is in the attic... that doesn't count.

That's clearly substantive, isn't it?

Mr. Todd: Yes, Justice Breyer.

Justice Breyer: All right.

Now, suppose they have a subpart (b) which said if the gun is in the attic, you get more, but the gun in the attic will be found by the judge.

That's just as if those words, gun in the attic, weren't there.

So it's just like the first statute, and that's Apprendi, you see.

That's Apprendi.

And you say, well, if you got that second statute that looked just like the first, this one does too.

I mean, that's the argument.

And you say, well, which way should we look at it.

I'm not sure.

Mr. Todd: Well, Your Honor, I... I think that the... that this Court's discussion in Bousley or Bousley... as... as you were indicating based on the Bailey decision, sort of capsulizes where... what... what in terms of retroactivity analysis, where substantive... what... what a real substantive change is.

Chief Justice Rehnquist: We... didn't we make it quite clear in Bousley that it was important that we were interpreting a Federal law, which we had the authority to interpret, rather than what's happened in this case where, as I understand it, the Supreme Court of Arizona has said the change brought by Ring was procedural.

Mr. Todd: That's... that's correct, Mr. Chief Justice.

The... this Court does not construe State statutes.

State courts do that, and it's our position that in order to change the substance of a crime, this is something either that the legislative body must do or that the State court, in the case of a State...

Justice Stevens: Does it follow, if it is procedural, that you necessarily prevail?

If... you... you do agree that he has been sentenced to death by an unconstitutional procedure.

Mr. Todd: This Court has said that it was, yes.

Justice Stevens: Yes, I mean, under our holdings.

And do you know any case in which we've held that a death sentence can be carried out when it was imposed pursuant to an unconstitutional procedure?

Mr. Todd: I... if I read your cases correct, Justice Stevens, I believe that you have decided three cases since Teague in which you have found that the... there was a problem, unconstitutional problem, with a jury sentencing procedure in a capital case and you have found that those cases are Teague barred.

Justice Stevens: But the... the... what was barred was considering whether or not there was a constitutional violation.

We didn't actually hold that where it was acknowledged there was a constitutional violation, that the death sentence could be carried out.

Or am I wrong on that?

Mr. Todd: My recollection, Justice Stevens, is that in each of those cases there had been a prior holding by this Court finding some unconstitutional procedure and that the case was in these three cases that procedure existed, only they had... they were on collateral review and this Court found them Teague barred.

Justice Stevens: I see.

Mr. Todd: In our opinion, the only way that Mr. Summerlin can avoid this Court's Teague bar is if somehow he can find that the Apprendi/ Ring rule fits within the exception for watershed changes in the rule.

And as this Court recalls, in order to do that, the Ring/ Apprendi rule must meet two tests.

It must satisfy two tests.

The first test is it must enhance the accuracy.

The second test is it must alter this Court's understanding of some bedrock principle.

Now, as to the... the first test, we would suggest that this Court's line of cases from 1968 answer the first question in the negative.

That is, that the Sixth Amendment jury guarantee and cases arising out of that are not to be applied retroactively.

As you... as you recall in Duncan v. Louisiana in 1968, this Court for the first time held that the Sixth Amendment jury guarantee should be applied to the States.

And in that very case... in that very case, this Court said that judge trials are not inherently unfair.

Then a month later in DeStefano v. Woods, this Court decided and held that this right, this very right to have a jury trial, would not be applied retroactively.

And then in a series of cases after that, this Court... that in cases where the... the right arose out of the jury guarantee... this case... the Court did not apply those cases retroactively.

At the time when the military was... had a right to a jury for a civil offense that the person committed, this Court held that that would not be applied retroactively.

Justice Stevens: May I interrupt you just once more?

Because I'm most interested in the capital cases.

Am I correct in remembering that after Furman, all of the death sentences across the country were held invalid retroactively?

Mr. Todd: Well, Your Honor, the... I can't speak to... to all the cases.

In Arizona what... what happened was that the... after Furman, that sentencing, the jury verdict in all the death penalties were unconstitutional.

And the... the Arizona Supreme Court simply applied Arizona law and said the sentence was excessive and, therefore... because it was unconstitutional, and therefore, imposed life sentence.

I don't... I was unable to find any case that really briefed or discussed the whole question of retroactivity or whether you could...

Justice Scalia: Well, you wouldn't... you wouldn't contest that Furman was a watershed decision, would you?

Mr. Todd: No, I would not.

Justice Scalia: So, I mean, the question is whether this... whether Ring is equivalent to Furman as far as watershed decisions go I guess.

Mr. Todd: Of course, Justice Scalia, our position is that it is not.

It's far from it.

But the... all these cases that the cross section... right to have a cross section of the community represented on a jury... that was not applied retroactively.

Justice Stevens: Let me just ask you why is Furman a watershed decision?

It just said the procedures were all wrong.

What... what made that watershed and... and this not watershed?

Mr. Todd: Because Furman affected all death penalty cases nationwide.

Justice Stevens: Because it was applied retroactively.

Mr. Todd: And... and it...

[Laughter]

It... and it was a complete...

Justice Stevens: And I suppose if this case is applied retroactive, this might be a watershed decision.

Mr. Murray: [Laughter]

Justice O'Connor: Was Furman decided before Teague?

Mr. Todd: Furman, Justice O'Connor, was decided before Teague.

And... and also in Furman, there was a major shift in this Court's thinking and understanding of the meaning of the Eighth Amendment.

Justice Scalia: Yes, which... an understanding which... which had existed in the country for a couple of hundred years, whereas, as I understand Ring, it's based on a reversal of... of a relatively recent practice of announcing in statutes sentencing factors as opposed to elements of the crime.

That... that was a quite recent practice and it seems to me quite reasonable to think that Furman was a watershed and that... that Ring and... and Apprendi, which preceded Ring, was not.

It was just a correction of a temporary wandering off from the... from the common law rule.

Mr. Todd: We would agree, Justice Scalia.

Justice Stevens: You would agree that Apprendi just corrected a... a minor wandering law, not an old rule?

Chief Justice Rehnquist: There's a question whether it corrected anything.

Mr. Todd: At... at most... at most, Apprendi merely extended in an incremental degree an existing proposition of this Court.

Justice Scalia: Apprendi purported, did it not, to be setting forth established law?

Did it not?

Mr. Todd: I...

Justice Scalia: And... right?

Mr. Todd: Yes.

Justice Scalia: And did Furman?

Mr. Todd: No.

It was a... a complete change is my understanding.

Chief Justice Rehnquist: There was no... there was no Court opinion in Furman, was there?

Mr. Todd: No, there was no opinion by the full Court where every... all the members agreed or a majority of the members agreed.

Justice Breyer: What will you do if... I mean, I absolutely accept your point, at least for argument, that... that if you go through the factors that favor calling it a watershed rule, you've listed several that argue strongly against calling it a watershed rule.

And I want your reaction to something on the other side.

And I have to say, though, I'm sure he... he will agree with these words.

Justice Scalia will not agree with the sentiment I'm quoting him for.

But in Ring he said... he spoke about the repeated spectacle of a man's going to his death because a judge found an aggravating factor existed and added that we cannot preserve our veneration for the protection of the jury in criminal cases if we render ourselves callous to the need for that protection by regularly imposing the death penalty without it.

Now, what I'm using those words to call to mind is that here we will have the spectacle of a person going to his death when he was tried in violation of a rule that the majority of the Court found to be a serious procedural flaw.

See, I'm not calling it absolutely overwhelming.

So I'm giving you that, but on the other side, I'm trying to focus your attention on the spectacle of the man going to his death, having been sentenced in violation of that principle.

What do you want to say about that?

Mr. Todd: Your Honor, in our view Teague answers that question, that if the Apprendi/ Ring rule would come within the Teague exception, then certainly in fairness, it should be applied retroactively.

Justice Scalia: Justice Breyer is... is arguing for a... a general capital sentencing exception to Teague.

I mean, you... you could make that statement that he just made in any capital case.

Justice Breyer: No, but... but anyway...

Mr. Murray: [Laughter]

Justice Breyer: the... the... Teague, of course, encapsulates a long prior history with Justice Harlan trying to formalize to a degree rules that will separate the more important for the less important.

Is that fair?

Mr. Todd: Yes, absolutely, Your Honor.

And our position is that this case, because of... it doesn't increase the accuracy, the... the Teague/ Apprendi rule, and it does not... is not even a bedrock rule, not even a bedrock rule, let alone a... a change in this Court's understanding of a bedrock rule.

Justice Stevens: Of course, is Teague itself a bedrock rule?

It was judge-made rule, isn't it?

It's not in the Constitution itself or any statute anywhere.

It's a judge-made rule.

Mr. Todd: Teague...

Justice Stevens: And that should trump the constitutional right at stake.

Mr. Todd: Teague is a judge... judge-made rule, Your Honor, yes.

If I may reserve the remainder of my time.

Argument of James A. Feldman

Chief Justice Rehnquist: Very well, Mr. Todd.

Mr. Feldman, we'll hear from you.

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

With respect to the bedrock principles... that is... that is, the bedrock watershed rules that come within the second Teague exception... the Court has articulated that exception not in terms of any rule that carries out a principle of the Constitution, even an important rule that carries out a principle of the Constitution, or one of the amendments that have been incorporated, but rather a bedrock rule.

And the examples that the Court has given, which are things like the violation of the rule of Gideon against Wainwright or a mob dominating a trial or the knowing use of testimony that was... of a... of a confession that was extracted by torture I think give guidance as to what that sort of bedrock rule is.

And what it is, is those are elements that, if they exist in a criminal trial, you can look at that trial and say this was not... could not have been a fair trial.

In fact, the trial conceivably could have come to the right result, but it couldn't have been a fair trial if those elements were not satisfied.

The rule in Ring and Apprendi does not come within that class.

Justice O'Connor: Mr. Feldman, what would you think the result should be for someone whose capital conviction and sentence became final after Apprendi but before Ring?

Mr. Feldman: I... I think that... that was a relatively brief period, but during that period, this Court's decision in Walton had held that judges could decide aggravating factors.

And accordingly, the law at that time was that and it would have to satisfy the Teague second exception if it were to be applied.

For the reasons I've said, I don't think it does.

The Court...

Justice O'Connor: Let me ask you something else.

I don't think you cited or relied on that DeStefano v. Woods case.

Why not?

Mr. Feldman: We should have.

The Court said in... in the... in the Duncan case... actually the quote is we would not assert that every criminal trial or any particular trial held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury.

That's a quote from Duncan.

In DeStefano, which was a pre-Teague case and I suppose maybe that was the reason why it was overlooked, but the Court relied on that particular reasoning in holding that the Duncan rule, which was the whole Sixth Amendment right, should not be retroactively applied.

The rule in Apprendi and Ring doesn't apply to the whole Sixth Amendment right.

It was long accepted before Apprendi and Ring that any element that the legislature identifies as an element of the offense has to be proven to the jury.

The question in these cases was things that the legislature had... was at the margins, things that the legislature had set forth not as an element of the offense, but as a sentencing factor that only goes to sentencing.

And what those cases did is divide up the... the universe of things that just go to sentencing and say some of them have to be submitted to the jury and others don't.

Those kinds of line-drawing decisions are not the kinds of things that are... that you can look at the commission of that particular fact to a judge rather than a jury and say this proceeding couldn't have been a fair one.

In fact, judges make... the Court has recognized that judges make similar types of decisions both procedurally in terms of the admission of evidence, in terms of the application of the Fourth Amendment, and even substantively, in fact, even in the capital context, in deciding the presence of mitigating factors, in deciding facts that may be of... of crucial importance in weighing the weight of mitigating against aggravating factors.

All of those things judges may permissibly do and may do so fairly.

Given that those things can be decided by a judge fairly, I don't think that it can be said that the rule in Apprendi and in Ring reaches that level of bedrock importance, that it just is... is... necessarily the whole proceeding was unfair because this element was...

Justice Ginsburg: Can we go back to the... the first and how you characterize this?

I would imagine you list elements of an offense.

Well, the elements of an offense... that has a substantive feel.

Who decides has a procedural feel.

It seems to me you could give this a substantive characterization if you're saying recite the elements of... of an offense.

That sounds very substantive.

What does it take to... to compose this crime.

And then... well, and then you say it... well, it's just who decides.

That's a procedural question.

You can characterize this fairly either way I think.

Mr. Feldman: I... I don't think so.

I think for the... for purposes of Teague, the best definition of substantive offense... of what is substantive is what substantive is what... what has been made criminal and... and perhaps what facts... on what facts turns a particular punishment.

The definition of those facts is a substantive point.

And the reason for that is that in Bousley, what the Court said was a... a longstanding concern of Federal habeas is that someone is going to stand convicted of an offense based on conduct that the law does not make criminal or does not subject to the punishment that he's going to get.

Now, when a court comes to a new understanding of an element of... of what the meaning, the substantive meaning, of an element of an offense, what conduct is or isn't criminal or can or cannot be subject to a particular punishment, there is a risk that... that the defendant, who was tried under a different standard, does stand convicted of committing an act that the law didn't make criminal.

And that's why substantive rules don't come within Teague.

But where... what happened here is not at all times, both before and after Ring, the... in Arizona the list of aggravating circumstances was the same.

They meant exactly the same thing.

And that risk that the Court talked about in Bousley of standing convicted of an act based on a finding that you committed an act that in fact is not criminal or couldn't be subject to the death penalty, that risk was not raised by this decision in Ring.

Justice Stevens: Mr. Feldman, do you think that the outcome of this case necessarily determines whether Apprendi is retroactive or not?

Mr. Feldman: I... I would think they stand or fall together because the Court in Ring...

Justice Stevens: Do you think if we hold this is bad, we must follow the same rule in Apprendi?

Mr. Feldman: Well, I'd prefer not to be categorical about that.

I... I mean, if the Court reached that conclusion, I'd want to see what the reasoning was that the Court used and see whether there are distinctions or aren't distinctions at that point.

But the Court...

Justice Souter: But if we... if we said, for example, that this is... this is retroactive because we, in effect, have said that the sentencing factor is... is like an element so that we are, in fact, for purposes of... of serving the jury right, recharacterizing or redefining the... the crime, then that would cover Apprendi as well as this case, wouldn't it?

Mr. Feldman: It... it may well.

It may well.

But I don't think the Court should reach that result for the reasons I just said, which is as a matter of substance and procedure, I think you can... if the question is, is this an element or is it a sentencing factor, but in both cases it's something that the legislature intended to set aside as this is something that's going to trigger a particular penalty, in this case the eligibility for the death penalty, either way I don't think that's a substantive decision.

If the question is, as it was in Bousley or in the... the Bailey case, well, is mere possession of a gun a criminal act or do you have... or is something else, is it something narrower than that, it has to be active use of the gun, that is a substantive decision because there are defendants who might have been found to have just possessed the gun and... and therefore not to be guilty of any crime at all.

And that does tie into a core purpose of habeas as... as the Court articulated in the Bousley case.

The Court has said in... said in Tyler... to return to the... the bedrock, the second Teague exception, the Court said in Tyler and... v. Cain, that not all rules relating to due process, not even all new rules relating to the fundamental requirements of due process, will satisfy the second Teague exception.

That exception is a narrow one because States have very vital interests in the finality of criminal convictions and in coming to closure after there's been a criminal conviction based on a good faith interpretation and reasonable interpretation of existing law, that not having to constantly reopen criminal convictions as the law naturally develops, as it does with respect to the jury trial right or any of the other rights that have been incorporated.

Applying that standard, the... the decision in Ring and the decision in... in Apprendi also, shouldn't be applied... don't come within the Teague second exception because it cannot be said in those circumstances that the... that the trial, in violation of those rules, was necessarily... couldn't have been a fair trial.

If there are no questions from the Court...

Argument of Ken Murray

Chief Justice Rehnquist: Thank you, Mr. Feldman.

Mr. Murray, we'll hear from you.

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

I'd like to first go right to the heart of the issue of the questions that were between Justice Breyer and Justice Scalia and point out that we are not, in fact, asking for an exception in death penalty cases of Teague, but we are asking the Court to look at the specific issues involved in capital cases and how the Teague exception that... that implicates accuracy and fairness is applied in those contexts.

And this Court has done that before in Stringer v. Black, the only case that we are aware of where you were looking at jury instructions to whether they're old and new.

The... the criteria and the specific unique aspects of the death penalty and the aggravating circumstances that you were looking at, such as the heinous, cruel, and depraved one that's in this case, were of a particular importance in determining whether the issue was new or old.

Chief Justice Rehnquist: Did the court of appeals rely on the fact that there was a... this was a death case as part of its reasoning?

Mr. Murray: It did in many respects, Your Honor.

Chief Justice Rehnquist: You mean it said in so many words?

Mr. Murray: Well, it... it pointed out the fact of the necessity of having evidence presented in a manner that would go to accuracy in a capital case, especially one was... you know, if somebody was looking at the death penalty, and there was a concurrence that specifically went into the fact that this was a capital case.

It's important to note if... if we're going to the first in the Teague exception that implicates accuracy and... and fairness, it's important to note that at the heart of the Sixth Amendment, we have the right to have all the facts necessary for a sentencing decision to be made by a jury.

And it's even more essential in capital cases.

In death penalty cases, juries really do make a difference.

Justice Souter: Well, isn't... isn't that because a lot of the sentencing... a lot of the aggravating factors the sentencing pivots are... are not only factual but normative?

I mean, heinous, atrocious, and cruel is... is the... is a perfect example of it.

It's... it's a how... how bad is it kind of determination.

This isn't so much a matter of accuracy as it is a... a matter of... of moral weighing, and does that fall within prong one of... of the Teague exception?

Mr. Murray: Prong one of the second exception?

Justice Kennedy: Yes.

Mr. Murray: Yes, Your Honor, to the extent that... I mean, I understand what you're saying, but to the extent that this is going to categorical accuracy.

Justice Souter: But it sounds more like judgment than accuracy is what I'm getting at.

Mr. Murray: It is... and is... and that's why the accuracy I... we believe has to be categorical.

If I could put it this way.

There's... there's a imaginary line of... about who can get closest to being correct in the term of accuracy that really hasn't been defined by the Court in this context, but in everyday uses accuracy is... is sort of getting it right.

But that's not what really works out here in these capital cases because we have this normative or subjective type aggravating circumstances.

We're talking about can we say for sure that jurors versus the judge... the individual judge would always get these issues the same.

And if they would not, if they would not categorically be accurate in that respect, then we have a problem because the... the jurors are supposed to be representing the community's common sense.

Justice Souter: Well, that's... that's... everything you say is... is true so far, but I don't know that that gets you to satisfy the accuracy prong.

Judges and juries may... I... I don't know how it would really work out, but they... they may make different normative judgments, different moral judgments in... in applying a factor like this.

But I don't think it falls within the... the category of accuracy.

Mr. Murray: Well... well, Your Honor, we're... our position is that it's accuracy only in, as I said, a categorical context because you can't ever determine who is absolutely right or wrong.

It's not like adding numbers.

But you can say that after the Court's decision in Ballew and other cases looking at group deliberation and unanimity requirements and the proper presentation of evidence to the jury, that their role as the community's voice for what their sense of... of the moral outrage, of what their sense... in determining the eligibility, because that's what we're looking at here with the aggravators in Arizona, is going to be more accurate over the long run than a single judge.

Justice Scalia: Mr. Murray, I... I have sort of the same problem that Justice O'Connor did.

I find it hard to contemplate how we could have held in DeStefano that Duncan v. Louisiana, which for the first time applied the jury trial guarantee of the Federal Constitution to the States... I mean, the entire trial didn't have to be before a jury until we decided Duncan.

And in DeStefano, we said that decision doesn't have to be retroactive, that the cases decided before Duncan will stand even though the judge decided the entire criminal case, not just the... the one element we're talking about here.

How... how can you possibly reconcile that with what you're asking us to do here?

This seems relatively minor compared to the quite more massive change in accuracy, if you believe it, which... which Duncan produced.

Mr. Murray: Well, specifically, Your Honor, we have two responses to that.

First, there are other cases from this Court's precedent where the DeStefano's refusal to find retroactivity for Duncan was set aside and not followed.

For example, after Ballew, then you had Brown and the Burch decisions, and they... they specifically refused to find... follow DeStefano, and in fact, this Court said, rejects the argument in Brown v. Louisiana that DeStefano's refusal to apply Duncan retroactively controlled and because of a constitutional rule directed toward ensuring that the proper functioning of the jury in those cases in which it has been provided can be given retroactive effect.

That is in note 13 in... in Brown.

Justice Scalia: But... but those cases do not involve the precise issue that you're bringing before us here.

The precise issue in Duncan was the difference between having the judge decide and having the jury decide.

That's the very thing that's at issue here.

Those other cases you mentioned did not involve that very thing.

Mr. Murray: Yes, Your Honor.

In Duncan, they had dealt with the issue of whether there is a right to jury trial in the States.

We also have other cases from this Court's precedents such as In re Winship, which was going to the burden of proof to prove every element being held retroactive.

We have Mullaney being held retroactive and Hankerson which talks about whether the States can make sort of end runs around by labeling issues as sentencing factors...

Justice Scalia: The point is that they didn't involve precisely what is involved here.

The difference between having the judge decide the case and having the jury decide the case.

Our only precedent dealing precisely with that issue says that the decision is not retroactive.

Mr. Murray: That's correct, Your Honor, but also you can remember that that case was decided pre-Teague when the balancing process that the Court used included a consideration and... and have given great weight to the consideration of the overall effect of the administration of justice.

And I'd also point out...

Chief Justice Rehnquist: Teague... but Teague does that too, does it not?

Gives great weight to the overall effect in the administration of justice in a different way perhaps.

Mr. Murray: Teague has done that essentially to the extent that the Court is going to consider that by the definition of a standard that is set in Teague.

But it has withdrawn it as a balancing factor that's specifically taken into consideration and can be given as much weight as it has previously.

I'd also point out that Teague as... as a result of Justice Harlan's writings in Desist and Mackey and he himself had said that the failure to hold Duncan retroactive in DeStefano was... probably eroded the principle that new rules affecting the very integrity of fact-finding processes are to be retroactively applied.

So...

Chief Justice Rehnquist: That was a separate opinion, was it not?

Mr. Murray: It was, Your Honor.

If I can then, I'd like to move on to the substantive and procedural question that has been raised, and that is something that has caused a lot of confusion.

But it is not our position that Ring... the rule in Ring itself is purely substantive because every substantive ruling will generate and will have flow from it a procedural consequence constitutionally.

So Ring is both procedural and substantive.

But it had to be substantive first because what the Court said in Ring was these aggravating circumstances in Arizona where they are used for the purpose of determining eligibility as opposed to the purpose of imposition of the death penalty or selection under the Eighth Amendment due... Eighth Amendment jurisprudence... these factors are necessary to establish eligibility for the death penalty.

Thus, it follows that the conviction for murder or first degree murder which the jury can make in... under Arizona law, plus the finding of the aggravating factor is what actually makes an individual guilty of a capital offense in Arizona.

Justice Breyer: I agree.

I think you can see it as substantive or you can see it as procedural.

But I wonder, because you've read all these cases now, is that... is... do you... do you think that the Teague categories... how fixed are they meant to be?

What I'm thinking of in particular is the remark that actually the Chief Justice made about it did reflect something to do with administration of justice.

So suppose that you had a case in which it looks as if it falls on the substantive side of the line, but really to let everyone out of prison is going to... is going to just devastate the justice system.

Is there room, given Teague, for some flexibility there?

In other words, are the factors absolutely written in stone?

Is there any indication they're flexible to read in the light of Teague's purposes?

What's your reaction to that?

Mr. Murray: Well, our position, Your Honor, is that there is room for flexibility and... and it is essential if you're going... if the Court is going to be looking at these cases and trying to determine how the result of their decisions will affect everybody else who are in similar positions, because the goal of Teague is to ensure that people in similar circumstances receives equal treatment.

And in looking at the specific circumstances, I think that it is flexible.

Justice Scalia: Mr. Murray, we have many opinions which... which comment upon the fact that the... the line between substance and procedure is an extremely variable one and that they really are just... just two opposites in various fields, and... and where the line is depends upon the purpose for which you're calling it substantive or calling it procedural.

Now, Mr. Feldman gave us what he... what his assessment of... of what our Teague rule means by... by substantive and that is if you have changed the... the punishment or if you have changed the status of whether an act could be performed without being criminally punished, that is a substantive change.

Now, if you believe that that's what substance versus procedure means here, this is clearly not substantive.

Chief Justice Rehnquist: Right?

Mr. Murray: If that's the limitation...

Justice Scalia: If... if that's what it means.

Now, if... if you don't agree with his description of... of what the dichotomy is, what is your understanding of... of what constitutes something that is substantive under... under Teague?

Mr. Murray: Our understanding, Your Honor, is that the position that the Assistant SG gave is included in a broader, more universal definition of what substantive is and that is at the core of a substantive ruling is defining what the elements of an offense are, back to the status quo of finding what is a crime, what is the crime of capital murder...

Justice Scalia: Even though the additional 5 years or 10 years for... for an act that was innocent was being imposed under the rubric of a sentencing factor rather than under the rubric of element.

Mr. Murray: Well, anytime that you... yes, but anytime that you change the definition, it's a substantive... substantive change...

Justice Scalia: Well, it... it is substantive for the purpose of whether it's in a criminal procedure book as an element or as a... as a sentencing factor, but it's not substantive for the purpose of whether an individual knew that if he did this, he was going to get 5 more years.

It's not substantive in that sense.

And I thought that that's what Teague was talking about.

Mr. Murray: Well, Your Honor, that... that sounds of the first exception to Teague, and our position is that... is not the entire universe of what substantive is about because in this case, although in Arizona the individuals were charged with... setting aside for the moment the indictment issue, they were charged and given notice, at least pretrial, of the aggravating circumstances for which they... the State was trying to impose the death penalty.

So that is known.

But the... the question is would... did they know that the... the jury... that they have a right to have a jury verdict.

Did they know that the jury was not going to be determining essentially what was the offense of capital murder?

And that is where it becomes a substantive situation because in Arizona they do not, based on the jury's finding, convict the individual being charged in a capital case of capital murder.

It wasn't until Ring came down, that they finally admitted that in Arizona from... from the other side, but that's the essence of the substantive.

Justice Ginsburg: There was a question that was asked to Mr. Wood and that was about do Apprendi and Ring go together, and I'd like your answer to that.

If we agree with you that this is substantive, wouldn't it follow that Apprendi also would be retroactive?

Mr. Murray: The short answer, Your Honor, is maybe or... or not necessarily.

It would depend on the...

[Laughter]

the reason...

Justice Ginsburg: What... what... could you give me a reason why they shouldn't go together?

Mr. Murray: If... if you rule... we've presented basically four arguments.

If you accept the argument that there was a misunderstanding of State law, not Federal or that it was an old rule, which we haven't discussed yet, we don't think that Apprendi and Ring would be hooked together.

If it's the substantive versus procedural issue that this Court relies upon, our position... it would be difficult to distinguish Apprendi from Ring.

If... if we're going to buy our... our definition of substantive, then they will both probably be the same.

If we get to the second exception of Teague, the one that implicates the fairness and accuracy, our position is that you wouldn't necessarily have to overturn or make Apprendi retroactive if you're depending on the specific and unique aspects of capital cases that we've been discussing so far.

Justice Ginsburg: On your... your not a new rule, I found that hard to follow in light of Walton.

I mean, Walton was the law until Ring said it was... overruled it pro tonto.

Mr. Murray: Yes, Your Honor.

Justice Ginsburg: So how could it not be... given that Walton was the instruction, how could Ring be anything but new?

Mr. Murray: Well, Ring went back, so to speak, to the old law.

First off, let me just point out in answering the question that Mr. Summerlin's case was pre-Walton.

His case became final 6 years before this Court's decision in Walton.

What happened in Walton then was this Court made the decision, based on the aspect... the issue of whether there is a Sixth Amendment right to juries' involvement in sentencing in capital cases.

Walton, until Ring, was in essence a... a blip in the history upon which the State jumped on to deny relief in these cases.

In Ring, the Court recognized that there is a difference between the Sixth Amendment right or lack of that...

Chief Justice Rehnquist: Why do you say Walton was a blip in... in the history?

Are you talking about from the time Arizona reimposed capital punishment after Furman?

Mr. Murray: Yes, Your Honor, and even before that.

For hundreds of years, juries have been having the responsibility to determine the facts that are necessary for individuals to be eligible for the death penalty.

Chief Justice Rehnquist: But surely, I mean, Arizona had adopted that system before Walton or Walton wouldn't have had occasion to pass on it.

Mr. Murray: Arizona never adopted the... the system wherein the juries would be involved in sentencing.

They adopted the system where the jury convicted only of the first degree murder and never performed the eligibility determination, although that's what the statute required.

Chief Justice Rehnquist: And... and it was that system that came to us in Walton, was it not?

Mr. Murray: It was that system, Your Honor.

Chief Justice Rehnquist: So saying that Walton... when you say blip, I got the impression you thought it originated something.

It didn't.

It just passed on the existing system in Arizona.

Mr. Murray: It passed on the existing system in Arizona but for the wrong reason.

But for a misunderstanding of how the system in Arizona worked, this Court... had this Court been presented with, for example, the information the Arizona Supreme Court gave in Ring I when they explained that in the Arizona system the aggravating circumstances do serve the eligibility purpose that they are an essential statutory factual element, then had you had that before Walton, had you had that information, Walton would have resulted in a different opinion is our position because you would have known then what you acknowledged in Ring, that we're not talking about jury sentencing in capital cases.

We're talking about making determination of eligibility for the death penalty itself with these aggravating circumstances.

And I would point out this is heinous, cruel, and depraved aggravating circumstance.

It isn't one... and this goes back a little bit to accuracy, but it isn't one that everybody necessarily agrees on because the prosecutor himself, the initial prosecutor in this case, did not, as the court in the Ninth Circuit points out, believe that there was enough evidence to support the heinous, cruel, and depraved circumstance... aggravating circumstance.

But that...

Chief Justice Rehnquist: Why... why should that be a factor that we take into consideration?

I mean, surely there could be a difference between prosecutors and the fact that somebody in the DA's office thought there wasn't evidence... enough evidence to go ahead, shouldn't be crucial in deciding whether the finding was correct made by the court or by the jury.

Mr. Murray: It just, Your Honor, goes to the fact that if two people on the government's side of the case are disagreeing on it, then it just shows the absolute need and the... the essential character of the jury's role in determining the community's sense of whether such an aggravating factor did exist in this case.

Now, if I can just continue on the old versus the new then, what happened then was that given the understanding of the... how the Arizona court worked, this Court went back to... to the basics of determining that every element of an offense, in this case capital murder, must be proved beyond a reasonable doubt and the State is not able to rely upon mere labels or, you know, drafting of the sentence... of the statutes to give a different determination to what those aggravating circumstances are.

And so this is really back consistent with Mullaney and... and Patterson and McMillan, although McMillan wasn't out at the time Mr. Summerlin's case became final.

That was 2 years later.

But that series of cases.

When we say it's... it's old, it's as if Walton was a... in essence, a new rule and Ring was a new rule that corrected Walton.

And so we're back for Mr. Summerlin where he's raised this issue for 20 years since 1983, over 20 years, and... and has sought to have the jury verdict on the capital offense to make... and their determination of whether he was eligible for the death penalty.

And he has not been given that.

Justice Ginsburg: Do you agree, by the way, with Mr. Wood that the judge... whatever his name was... that he didn't use the presentence report because that would be considered hearsay under Arizona law?

Mr. Murray: I do, Your Honor.

There was a significant amount of inadmissible or irrelevant evidence that went to the judge, Judge Marquardt, who was a judge that had his own problems in this case, but that went to him that would not have been reviewed or heard by the jury.

In addition, the...

Justice Ginsburg: But Mr. Wood said he couldn't consider it because it was hearsay.

Is it...

Mr. Murray: Well...

Justice Ginsburg: But the judge... no more than the jury, the judge could not have considered that in determining whether there was an aggravating factor.

Mr. Murray: I understand, and I agree that there are rules that... and there are rules and presumptions that say that the court is not going to consider irrelevant or inadmissable evidence.

The problem we have is that evidence is there.

The judges are human.

They have human frailties as this case shows, and in the long run, that is precisely why the Framers of the Constitution chose to have the juries to stand as protectant bulwarks between the accused and the government officials who are, you know, seeking to have the death penalty imposed on the individual.

Justice Scalia: Who don't have human frailties.

Right?

Juries... juries without human frailties.

Mr. Murray: We all... the juries, the judges, every one of us have human frailties, Justice Scalia.

Justice Ginsburg: There... there were a number of issues that you raised in this case that... that they didn't get to below.

Is that right?

Because of the court of appeals' decision on the Ring retroactivity.

Mr. Murray: Yes, Your Honor.

There are all but... they did rule on the ineffectiveness at the trial phase itself...

Justice Scalia: And they rejected the...

Mr. Murray: as a preliminary matter, but the remainder of the rules... of the ineffectiveness issues and the judge issues remain open.

And I... I would assume that if we did not prevail on this, that we'd be back in the Ninth Circuit for a ruling on that.

If there are no further questions, I believe I've covered the issues, Your Honor.

Rebuttal of John P. Todd

Chief Justice Rehnquist: Thank you, Mr. Murray.

Mr. Todd, you have 2 minutes remaining.

Mr. Todd: If I may, I would like to respond to Justice Breyer's question concerning flexibility of Teague.

And I... I would suggest that if this Court had a rule that so increased accuracy, a new rule, and so was... changed this Court's understanding of some truly bedrock principle, then this Court would not care how many cases it affected because it was so important, so critical and that you would apply it retroactively.

Conversely, if a rule doesn't reach that, then you don't apply it retroactively under Teague is... is our understanding.

The...

Justice Ginsburg: What... what rules would fit that so important?

And the... the briefs cite Gideon.

Is there anything else?

Mr. Todd: I think Gideon is the... the ideal, perfect example.

Justice Ginsburg: Yes, but are there other examples?

Mr. Todd: I cannot think of one off the top of my head, Your Honor.

These surely are not.

In... in terms of your concern with whether there's any substance component to the Teague... excuse me... to the Ring or Apprendi opinions, it seems to me this Court's opinion in Bousley where you're explaining what truly is a substantive change and you cite to the first Teague exception in the Bousley case, that sort of explains that... what you're really concerned with, particularly on habeas, is that we don't have somebody who shouldn't be convicted, shouldn't be punished in the system.

And so if it falls within like the first Teague exception or if you change the law, your... your understanding of the law like in Bailey, or the other two cases that are cited in the yellow brief, Fiore v. White and Bunkley v. Florida, where the State court interpreted State law and determined that in their construction of the law, they changed the scope of that statute...

Chief Justice Rehnquist: Thank you, Mr. Todd.

Mr. Todd: You're welcome.

Chief Justice Rehnquist: The case is submitted.

Justice O'Connor: The honorable court is now adjourned until tomorrow at ten o'clock.

Attribution:

The Oyez Project

Featured:

Austria v. Altmann - Oral Argument

Fri, 09 Jan 2009 14:49:06 +0000

Case:

Austria v. Altmann

Media File:

03-13_20040225-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Scott P. Cooper

Chief Justice Rehnquist: We'll hear argument next in 03-13, the Republic of Austria v. Maria Altmann.

Mr. Cooper.

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

Landgraf and its progeny provide the basis for a decision in this case.

In enacting the FSIA, Congress did not direct that it apply retrospectively to events that occurred prior to its enactment.

Moreover, application of the 1976 expropriation exception to alleged conduct that occurred in and before 1948 would change the legal consequences of that conduct, and therefore be impermissibly retroactive.

Justice Scalia: What... why would it change the legal consequences?

It... wouldn't it just change where you can, where you can sue?

Mr. Cooper: No, in fundamental terms it would change the legal consequences.

Prior to 1976, there was complete immunity in this country for claims of expropriation.

Foreign sovereigns had an expectation that they would not be hailed into our courts to answer for the internal exercise of their sovereign activities, and that is the fundamental aspect of--

Justice O'Connor: Did the Tate letter have any coverage prior to '76, the so-called Tate letter from the State Department?

Mr. Cooper: --The so-called Tate letter changed the State Department's position with respect to commercial activities as of 1952.

This conduct all preceded 1952 and concerned what has always been recognized as essentially public acts, that is, acts of expropriation.

But to finish the answer to Justice Scalia, the... the issue that underlies the whole concept of foreign sovereign immunity at its very basis is the question of whether our courts, in the case of United States' jurisdiction, will exercise jurisdiction to question past judgment on the sovereign conduct of foreign states acting in their own... within their own borders with respect to property within their own country in this case.

And that's something that as a matter of comity and as a matter of international concepts of orderly relationships between sovereigns that we don't tolerate.

Justice Ginsburg: But I thought that... well, first, I think you recognize that this suit could be brought inside Austria, and then one of the countries that don't follow the... the absolute rule.

Then it seems to me that Justice Scalia is right, it's a question of where you can sue.

You... your argument is the United States has been self-denying, but countries like Austria itself that don't follow that absolute rule could be a proper forum.

Mr. Cooper: With respect, Justice Ginsburg, the... this issue of the adoption of the restrictive theory by any country is really a red herring here.

The expropriation exception concerns itself with what has always been recognized as a public act, and that is that the act of expropriation, something that can only be done by a governmental entity through the exercise of its governmental authority.

Justice Ginsburg: But I... as I understand this claim, it's not the original ex parte... expropriation is when Austria isn't even a country, because this happened in the Nazi period, right?

Mr. Cooper: No, Your Honor.

The United States' position throughout World War II and thereafter has been that Austria retained its sovereignty, that it was an occupied state by the Nazi regime.

The United States immediately recognized--

Justice Ginsburg: Then why was there a second republic?

Mr. Cooper: --The second republic was the reconstituted government of the state of Austria, but the United States' position, and it is the executive's position that has binding authority with respect to the sovereign status, the executive's position was that Austria was always a state.

More importantly, Your Honor--

Justice Ginsburg: But may I continue, because I thought that this claim, whatever you say about Austria's status in the, at the time of the Anschluss, that it's not necessarily about the stealing of the goods, it's about the retention of the goods.

Mr. Cooper: --We don't believe that that's a correct reading of section 1603... 1605(a)(3).

1605(a)(3) concerns itself with the expropriation of property.

The Congress... I articulated the power for the enactment of the expropriation exception as the power to define and punish violations of the laws of nations, and it is not even arguably the case that a possession of expropriated property, especially as it's been argued by the respondent, not necessarily even having been expropriated by the defendant country, is a violation of international law.

Justice Ginsburg: So if you know that you've taken from an expropriator, that's all right under international law?

Mr. Cooper: It's not a question of whether it's all right.

It's a question of whether Congress decided that it was a basis for an exception to the long-standing and general rule of law in this country, that is, sovereign immunity.

So in other words, has... has Congress determined that one of the narrow and specified exceptions to foreign sovereign immunity is the mere possession of property?

Justice Scalia: Is it sovereign immunity or is it the act of state doctrine?

Mr. Cooper: It's sovereign immunity, Your Honor.

Justice Scalia: Well, but, I mean, even... there... there are two things that happen here.

The sovereign can be brought into court, but more than that, the sovereign can be held to account for the act of the sovereign on its own territory.

The latter, it seems to me, can be described as substantive law, the former, just allowing the sovereign to come into your... or allowing your court to entertain a suit against the sovereign is... is just... just where suit goes.

It has nothing to do with the outcome of the suit.

Mr. Cooper: This Court determined--

Justice Scalia: So I... I wish you could tell me that it did have to do with the act of state doctrine, because that would be... that would be a substantive change and that should not be retroactive.

Mr. Cooper: --The... the active state doctrine is an independent doctrine that is not before the Court today.

The sovereign immunity doctrine is before the Court today.

Sovereign immunity, this Court decided in Verlinden, is a matter of substantive Federal law.

This Court made that decision after careful consideration and with specific reference to the FSIA and Congress' power to enact it, and concluded that it was more than a jurisdictional statute.

Moreover, in the Hughes case, this Court determined that merely articulating a statute's terms in terms of jurisdiction does not remove it from the retroactivity analysis we urge is the rule of law that... that determines the outcome of this case.

Quite the contrary.

Hughes made it clear that in circumstances very much like these, where a cause of action was not previously allowed, and here the immunity kept a... an action for expropriation from being adjudicated in American courts under those circumstances.

As of 1976, there was a fundamental change in the law with respect to foreign sovereigns.

Justice Scalia: Well, in Hughes... in Hughes there were... there were other changes besides the... besides the jurisdictional one.

There... there were defenses that were eliminated.

I don't think Hughes is a very good... good case for you, but Verlinden, it seems to me, is... is... is closer, but we were determining there whether it was a substantive law or not for a very different purpose, for the existence of... of power on the part of the Federal Government to... to enact the statute.

That's a... that's a bit different from the purpose for which we're determining whether it's a substantive law here.

Mr. Cooper: The interest of the United States, Your Honor, in the... the administration of cases against foreign sovereigns has long been recognized by this Court as being a... a matter of great national interest.

The question of when we decide to exercise jurisdiction over foreign sovereigns is an essential component of the way this country interacts with other countries.

It's an area in which the Constitution conferred responsibility on the political branches.

The executive exercised that responsibility for the vast portion of this country's history and then submitted to Congress an act, the Foreign Sovereign Immunity Act, which Congress then enacted, and created--

Justice Scalia: But none of that's in question.

Mr. Cooper: --very narrow exceptions to the doctrine.

Justice Scalia: None of that's in question.

The only thing that's in question is when Congress enacted this, did they intend it to have the effect of... of... what should I say... de-immunizing, if you want to put it that way, prior acts or not.

Mr. Cooper: And it--

Justice Scalia: We're... we're not questioning the authority of the executive or the authority of the legislature or the importance of this matter.

Essentially, the issue is, what did Congress mean by this statute?

Mr. Cooper: --And Congress in this Court has clearly articulated in... in Landgraf and in the... the several cases that followed it, exactly how we determined what it was that Congress did as it relates to the retroactive aspects of those changes in law.

Justice Kennedy: And in... in our domestic jurisprudence, we are cautious about retroactivity because it destroys subtle expectations.

Is that same rationale applicable when we're talking about foreign sovereign immunity, or are there other considerations such as the dignity or... of the foreign state?

Mr. Cooper: We think when the issue of a concept of basic fairness so close to the root of our understanding of what constitutes fair treatment of any individual, that no less standard--

Justice Kennedy: Well, that's why--

Mr. Cooper: --no less rigorous standard than Landgraf should apply.

Justice Kennedy: --That leads to my... my next question.

If we're talking about expectations, my understanding... correct me if I'm wrong... is that in 1948 Austria was... and all countries... were on notice that immunity would be judged later on by acts of the executive, or in this case, by an act of Congress.

Wasn't the expectation here that there would be a later determination of whether there was immunity?

Mr. Cooper: The expectation was that, based on the general concepts of international law and general concepts of comity, which are not just a question of whim or courtesy, but rather a question of fair treatment of one sovereign by another with the expectation that the sovereign who is declining jurisdiction would be fairly treated in the courts of other countries.

Justice Kennedy: But still whether or not there would be immunity, Austria and all other countries knew, would be a later determination, so that the expectation they had was to that extent necessarily, it seems to me, diminished--

Mr. Cooper: The expect--

Justice Kennedy: --or qualified.

Mr. Cooper: --Expectations are only one of a number of factors that the Court has referred to in Landgraf.

Justice Kennedy: So it's... so there are additional factors other than expect.

What are the additional factors?

Mr. Cooper: Well, certainly.

Landgraf quoted Justice Story in his 1814 articulation of what was relevant, but the factors are expectations, changed circumstances, and changed considerations for the parties.

Any case that increases liability, for instance, for a particular act is considered to be--

Justice Scalia: Let's just stick... stick with expectations--

Mr. Cooper: --part of common sense--

Justice Scalia: --for the moment.

Let's... before you get off of expectations, I don't know that we protect expectations of the sort that... that you're talking about.

Let's assume that a state which has not... not previously allowed a tort action by... by two out-of-state people, between two out-of-state people, to be brought within that state.

Let's assume they change their law and they say, you know, in the future, you... you can bring a tort action.

Do you think that... that we would say, you're... you're disrupting people's expectations if you allow those persons who are... who are the parties to a tort in another state before this statute was passed to sue in the new state?

Mr. Cooper: --Our concepts of--

Justice Scalia: What expectation, you know?

I expected not to be able to be sued in Virginia.

As it turns out, I can... I can be sued in Virginia.

Did that really affect my action in... in this case?

I can't believe that Austria when it took this action had in mind, oh, I... I know that I... that I can't be sued for this in the United States, I may be sueable a lot of other places.

Mr. Cooper: --Reliance--

Justice Scalia: I'm sueable here, but I'm not sueable in the United States.

Who cares?

Mr. Cooper: --That kind of particularized reliance analysis has never been a part of this Court's retroactivity analysis.

It... the Court doesn't look for purposes of civil or criminal cases, can we find evidence that the individual, when that individual acted, or the party, when that party acted, had in mind the current state of law.

The question has been as a matter of common sense understanding, is the new law a change in the consequences for past conduct?

And--

Justice Souter: So you're... you're distinguishing reliance and expectation?

An expectation is relevant even though there may be no reliance.

Is... do I understand you correctly?

Mr. Cooper: --We are focused on the changed legal consequences, not the subjective intention of the party in any respect.

Justice Souter: But is... do... do you articulate that in terms of the country's expectation, even though the country may not have relied upon that expectation when it acted?

Mr. Cooper: Not--

Justice Souter: Are you drawing that distinction?

Mr. Cooper: --Not solely.

We are not focused on the expectation component of the test.

We are focused primarily, although I think expectations could be a factor, we think that the more important aspect of the analysis is the changed legal circumstances.

That's... that's the core of what the--

Justice Souter: And the changed legal circumstance that I understand you're emphasizing here is that, at least prior to 1976, this particular possession of expropriated property, as well as the expropriation itself, would not have been cognizable in the court of any country unless possibly the country itself, which as an act of grace later, decided to... to make its own reparations.

But subject to that section... that exception... it would not be... would not have been cognizable anywhere?

Mr. Cooper: --That's absolutely correct.

Justice Souter: Okay.

Mr. Cooper: If there are no further questions at this point, I'd like to reserve time.

Argument of Thomas G. Hungar

Chief Justice Rehnquist: Very well, Mr. McCoy... rather, Mr. Cooper.

Mr. Hungar, we'll hear from you.

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

The position of the United States has always been that sovereign immunity bars U.S. courts from adjudicating pre-1976 expropriation claims against foreign sovereigns.

As this Court recognized in Dames & Moore, claims by nationals of one country against the government of another are frequently sources of friction between the two sovereigns.

Since 19... prior to 1976, therefore, and absent a waiver of sovereign immunity, expropriation claims against foreign sovereigns have always been addressed through diplomatic negotiations and foreign claims processes, and not in U.S. courts.

And the United States has entered into numerous agreements with foreign countries regarding such claims, always against and with a background understanding prior to 1976 that such claims could not be adjudicated in U.S. courts.

Justice Kennedy: Is... is the friction that's feared in part based on changed expectations, or is that just irrelevant to the analysis?

Mr. Hungar: Changed expectations are relevant in, in the general sense, not the particular... particularized expectations of a particular state, but that it is a general rule and understanding of international laws set forth in the Vienna Convention on Treaties and elsewhere that changes in international law, including changes in sovereign immunity law, are not retroactively applied.

And there are numerous examples of the latter point cited in our brief at footnote 14, and... and it was an absolute rule in 1948 and before.

Justice Stevens: Is the absolute rule based on the act of state doctrine or on sovereign immunity?

The distinction--

Mr. Hungar: Sovereign immunity.

Sovereign... it was an absolute rule of sovereign immunity--

Justice Stevens: --But as you stated the proposition, you're limited to appropriation claims.

Mr. Hungar: --Well, that's what we're addressing here.

This... the absolute doctrine, the doctrine of absolute immunity was applicable to all claims.

There is no... there is not a single instance of any case or State Department determination prior to 1952 in which a suit was permitted to proceed against a foreign sovereign--

Justice O'Connor: And then that was the Tate letter, the--

Mr. Hungar: --The Tate letter changed--

Justice O'Connor: --In '52.

Mr. Hungar: --With respect to commercial activity, but, of course, this is not a commercial... it's not even alleged the... within the commercial activity exception.

We're not talking about commercial activity.

Justice Kennedy: Why is it that retroactivity... retroactivity causes more friction?

Because--

Mr. Hungar: Because it would be inconsistent with the understandings with which the United States and these foreign governments operated under with claims resolution agreements with numerous countries, not merely arising out of World War II, but out of communist government expropriations and numerous agreements regarding these types of--

Justice Kennedy: --But I thought part of the baseline of immunity law was that other... foreign countries such as Austria knew that from time to time we would confer immunity or not confer immunity depending on the decision of the executive.

So I don't see how wealth... how settled this expectation or this other reliance is.

Mr. Hungar: --The... the case that... the doctrine of absolute sovereign immunity, there were no... there are no exceptions.

There could not possibly have been expectation or reason to believe that the executive of this country would deny immunity in an expropriation case because that had never happened in the history of the absolute doctrine, immunity doctrine, for 150 years.

No suit, again, no suit in the United States has been permitted, was permitted to proceed on any theory against a foreign sovereign in personam.

It was... it would be absolutely unprecedented for such a suit to have been permitted prior to 1976, in fact, in the expropriation context.

And so--

Justice Ginsburg: Would that be true of... would that be true of Austria itself if the tables were turned?

Mr. Hungar: --It's unclear whether a... a court action could have been brought, at least we're not familiar with anything in the record that indicates whether a court action could have been brought in 1948, under, for example, the restitution law that Austria passed in 1947.

Justice Ginsburg: I think there was--

Mr. Hungar: But that's irrelevant because it can't be... the retroactivity analysis has to be a term... determined on a section-by-section, or... or provision-by-provision basis.

It can't be a case-by-case, country-by-country rule.

Justice Ginsburg: --Well, it was relevant to something that Mr. Cooper said.

He said this was a matter of fairness and we want others to be treated... treat others... treat others well so that they will treat us well.

That sounded to me like he was speaking in reciprocity terms.

Mr. Hungar: Reciprocity is also an important consideration, Your Honor.

If this law were to be applied retroactively, it could open the United States to reciprocal claims brought in foreign courts, which would further complicate our foreign relations.

Justice Breyer: Well, how... how does it work if in fact you treat the statute as purely jurisdictional?

You have to, one, establish jurisdiction, they have it under 1330.

You have to have venue, they established that.

And then you look to see if it's wiped out by sovereign immunity, and (a)(3) says this is a case in which rights and property taken in violation of international law are an issue.

Right.

So suppose you said, yes, that is such a case, even though the expropriation took place in '48 or earlier perhaps.

Then the State Department could come in and say, well, you don't win if you wanted to.

You'd say, after all, there first is the act of state doctrine, and this was not clearly in violation of international law in 1948, or you could file, what is it called, it's a... an information, or what is it, it's a suggestion of something or other... it's a--

Mr. Hungar: Well, prior to--

Justice Breyer: --statement of interest.

And you say it's the... there's a... there's a foreign policy interest here, and so that way the State Department's in control, and if it feels that it would hurt foreign affairs to have the suit go ahead, it says either act of state if it's not clear or a statement of interest, and a... which is a kind of political question, I guess.

And so, what... how does that, in other words, where am I wrong in thinking there's no real foreign policy concern here in respect to the application of this statute as a purely jurisdictional matter?

Mr. Hungar: --We believe that the... as we said in our briefs, and part of the reason we're here today is that there are foreign policy concerns implicated--

Justice Breyer: I know, and what I want to know is, what was wrong with what I just said?

You see, as I was saying it... did you follow it?

One--

Mr. Hungar: --Well, I'm not... understand.

We are here today saying the United States has an interest in not having this expropriation exception applied retroactively because it would undermine the background assumption--

Justice Breyer: --I understand that and I'm trying to get to the reasoning.

And my thought was, I don't see why it affects foreign affairs.

You can explain why.

I understand you believe it does and I'm sure you're right, but I just want to know why, and the reason I find it difficult to see why is because it seems to me you still, even assuming jurisdiction, can come in and say this was an act of state, this seizure in 1948, or you can file a statement of interest, which I take it is saying there's a big foreign policy matter here and we're working it out in other forums and you courts stay out of it.

Now... now am I wrong about that?

I'm sure you're going to say I am wrong and I want to know why.

Mr. Hungar: --Well, we don't perceive a meaningful difference between an amicus brief expressing foreign policy concerns, which is what we have filed, and a statement of interest expressing foreign policy concerns.

Justice Breyer: Ah. Well, then the correct result in this case is to say yes, this statute applies, it applies to 1948 seizures, because they were in violation of international law.

Now, the State Department files a statement of interest saying to the court, there is a valid foreign policy reason for not going ahead in the case.

Mr. Hungar: But the--

Justice Breyer: I take it, by the way, you promised you wouldn't in this case, but nonetheless, all right.

So... so if... that would be just up to you, so if you do it, then the court will not go ahead and adjudicate this case even though there is jurisdiction under the FSIA.

Mr. Hungar: --Justice Breyer--

Justice Breyer: I'm missing something, so you explain it to me.

Mr. Hungar: --Well, several things.

First of all, it's not true that we promised not to express a view--

Justice Breyer: I'm sorry I brought that up.

Take that out.

Mr. Hungar: --That has to do with a particular agreement entered into in 2001 and it is certainly our position that that agreement does not cover this case and that was the position we took.

But again, with respect to the... we are expressing the foreign policy concerns that I've identified, which are generalizing, go through the retroactive application of this statute generally.

We're not talking just about Austria here.

There are claims and potential claims against countless foreign countries, many of whom... many of which would involve claims that were previously addressed--

Justice Scalia: Some of them do not involve the act of state doctrine and you want us to hold that... that... that this would be a retroactive application of this jurisdictional statute no matter... no matter what claim is made, whether it's an act of state claim or not.

If... if you were limiting them to act of state, I could understand it, because that's a substantive... a substantive matter, but you want us to say no... no suits can be brought that... out of actions that... that arose before this.

Mr. Hungar: --In principles of retroactivity, the presumption against retroactivity require--

Justice Scalia: It's not--

Mr. Hungar: --This is not a sub--

Justice Scalia: --It begs... it begs the question whether it is retroactive or not.

Mr. Hungar: --This is not purely... no, Your Honor, this is not purely jurisdictional.

The fact that a... if it's true that a similar type claim could have been brought in Austria at the time, that cannot change the retroactivity analysis, because otherwise retroactivity would be determined country by country, and that fact that... that a state by... by an exercise of grace has chosen to allow claims that somehow deprive it would change the rules, which can't be--

Justice Breyer: Give me an example.

I only have one question in this case and I've just said it and I want to be sure I get the best answer I can.

So give me an example of an instance where it would hurt the foreign affairs interests of the United States if the law said you proceed as I outlined.

Mr. Hungar: --We have--

Justice Breyer: There is jurisdiction but you are free to file act of state or--

Chief Justice Rehnquist: --Wind it up.

Justice Breyer: --statement of interest.

Mr. Hungar: --May I answer, Your Honor?

Chief Justice Rehnquist: Yes.

Mr. Hungar: The... we... there are currently cases pending against countries such as Japan and Poland, with which... which this country previously entered into agreements which both sides thought had resolved the issue entirely, and to now retroactively apply a substantive provision that this Court recognized in Ex parte Peru is a substantive, not merely jurisdictional, but a substantive legal defense, to apply that retroactively would be to change settled expectations, change the rules, and it should not be done.

Argument of E. Randol Schoenberg

Chief Justice Rehnquist: Thank you, Mr. Hungar.

Mr. Schoenberg, we'll hear from you.

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

We believe there are four independent grounds for affirming the lower court in this case.

First, as the Court has just discussed, the Foreign Sovereign Immunities Act regulates the exercise of jurisdiction, not the underlying primary conduct of the parties.

Therefore, the Act does not operate retrospectively.

Justice Souter: Well, why doesn't it retro... why... why isn't it just as easy to say that it does operate retrospectively, because the question is, when should it exercise jurisdiction for a particular purpose?

And on the one hand there's no point in exercising jurisdiction now if it's not going to adjudicate later, so so far as the court is concerned, presumably it's going to adjudicate on a substantive issue.

That being the purpose, why can you... why really does it make sense to draw that neat line?

Mr. Schoenberg: Well, I'm... I'm not sure that I understand the question.

Justice Souter: Why... why... why isolate jurisdiction when we all know that the purpose of exercising the jurisdiction is to exercise it for the purpose of adjudicating a particular kind of case and to apply a particular substantive law to it?

Mr. Schoenberg: Because the... the operative event, the event that's being regulated by a jurisdictional statute, as the Court has said, is that exercise of the Court's power, regardless of when the underlying acts took place, the Court has differentiated between the primary conduct of the parties and the secondary conduct, which is the exercise of the Court's power.

For example, just last term in the Dole Food case, the Court found that the Foreign Sovereign Immunities Act is not intended to chill the conduct of the foreign state.

Rather, it's there to decide whether now presently it would embarrass the conduct of foreign relations, and the... 25 years ago, over 25 years ago, Congress decided that cases such as these should be allowed to go forward.

Justice Souter: Well, the Government of the United States has just said you're going to embarrass foreign relations whether the United States' position with respect to a consideration in interpreting this act is raised now or whether it's raised after jurisdiction is assumed and you get to the next stage.

Why not... why not get into it now and consider it in interpreting the... the scope of the act, in particular its retroactivity.

Mr. Schoenberg: This would be a much different case if the foreign government had ever said that the prosecution of this case would interfere with foreign relations, as it has in all of these other cases.

But it hasn't in this case, it hasn't filed a suggestion of immunity, it hasn't filed a statement of interest.

A matter of fact, it required Austria to withdraw the act of state doctrine defense when it was asserted below.

This case itself--

Justice Kennedy: But I thought it just told us that it would be an interference three minutes ago.

Mr. Schoenberg: --The concern, as I understand the Government's concern, is that in other cases that are pending against Japan and Mexico, et cetera, there might be foreign relation issues.

Chief Justice Rehnquist: Well, why... why should we look further?

If the Government says that, I mean, isn't that conclusive in a case like this?

Mr. Schoenberg: I don't... I don't think so.

I think there are two responses.

First, the amount of deference that is given to the Government's litigation position under Bowen v. Georgetown and also INS v. St. Cyr.

Chief Justice Rehnquist: Well, those are not cases involving foreign relations.

Mr. Schoenberg: That... that's correct, and that's why the second issue is very important.

I believe it was Justice Powell who said in the first National City Bank case that... that jurisdiction is not the same as justiciability.

And what the Government is talking about is a justiciability question.

Does the act of state doctrine, for example, prevent this case from going forward?

I'll give you another example, Your Honor.

In... the same district court judge who handled our case and granted jurisdiction in our case, Judge Cooper, also was given a class action case asserting World War II era claims against Austria, this is the Anderman case.

And just last April, she threw out that entire class action, because the Government had come in and filed a statement of interest and asserted its interest in the... in the case, and she found very similar to the Court's holding in Garamendi last term that the political question doctrine was implicated when the Government comes in and says that the prosecution of this particular case will interfere with foreign relations.

But I've never heard any... in any other case the Government say that a case that does not implicate foreign relations, as this one does, should be dismissed on jurisdiction grounds merely because we have justiciability concerns with other cases.

Justice Breyer: What... what is it if... what do you reply to their, what I take is their argument, that if we say there is jurisdiction here, so that this covers pre-1952 expropriations, think of all the eastern European bloc, what used to be, millions of pieces of real estate, et cetera, and Japan, Peru, all over the world, South America, there have been expropriations, and suddenly our Court becomes... become places where you litigate who owns property all over the world, at least if you trace an interest to an American citizen, for expropriations that may have taken under Maximilian of Mexico.

I mean, see... you see that kind of problem I think is what they're trying to raise.

Mr. Schoenberg: Right.

We're very--

Justice Breyer: What's the answer to that?

Mr. Schoenberg: --We're very sensitive to the Government's concern, the can of worms argument here.

And I think the answer to it is that all of those cases present much more difficult problems than this one does in terms of, for example, the statute of limitations.

Your Honor, the statute of limitations is designed to get rid of old claims.

In our case, because of Austria's post-war conduct of concealment--

Justice Breyer: All right, statute of limitations.

Let's go on, let's list a few other things, because--

Mr. Schoenberg: --There--

Justice Breyer: --there might be instances where the statute hasn't run for all kinds--

Mr. Schoenberg: --Right.

Justice Breyer: --of local reasons.

Mr. Schoenberg: There's--

Justice Breyer: I don't know what the statute of limitations rule is in Peru and et cetera.

Mr. Schoenberg: --I can think of at least five problems that cases, old cases, would have.

One would be statute of limitations.

Form non-convenience may be a problem.

It wasn't in this case.

The act of state doctrine we've mentioned is also a serious problem in many of these cases.

You have interference with treaties, which is also not this case.

And you have interference with executive agreements, which is also not this case.

Justice Breyer: Can they come in and file a letter, in your opinion, assume you have jurisdiction to say, look, Judge, we don't want you to litigate this case, it interferes with our foreign affairs, period?

Mr. Schoenberg: Yes.

Justice Breyer: They can?

Mr. Schoenberg: They can file that.

I think it would have to be considered by the--

Justice Breyer: And they give a good reason, they give a good reason.

Mr. Schoenberg: --If there were a good reason why Austria's ownership of paintings would interfere with foreign policy--

Chief Justice Rehnquist: But that's for a court to judge rather than the executive?

Mr. Schoenberg: --Well, there's a certain amount of deference that would have to be given to--

Chief Justice Rehnquist: But no, but you're saying that the executive could say and have... give a good reason, and the court could say, no, we don't... we don't approve of that?

Mr. Schoenberg: --I think under... under this Court's doctrine in foreign affair and policy... foreign affairs policy... there is an automatic deference given to the Government's suggestion that a particular case will interfere with foreign policy, but in most cases I think it would be quite clear.

This case--

Chief Justice Rehnquist: Well, what... what case is it that says that the court should decide rather than the executive in case like this?

Mr. Schoenberg: --Well, I believe, for example, in... in Sabbatino, the Court did not immediately accept the Government's position as to whether a case should or should not go forward and said that it was... now, I don't know whether that, whether Sabbatino, in that part of Sabbatino, it would still be good law today.

I don't think that's been considered.

Chief Justice Rehnquist: It... we... it wasn't the Court opinion, was it?

Mr. Schoenberg: Right.

It was a plurality opinion.

But there is a suggestion, it may not be an answered question, Your Honor.

I'm not sure I can point to a case that would... would talk about the deference, but again, we're talking about not our situation, because the Government has not filed any suggestion of immunity or... or statement of interest suggesting that this case would interfere with foreign policy.

Justice Scalia: Could... could I ask about the act of state doctrine?

I mean, even... why isn't that in play here?

I mean, even if giving... holding Austria here would not be acting retroactively insofar as the exercise of jurisdiction is concerned, why wouldn't holding Austria liable for an act of state which previously would not be a basis for... for challenge in this country, why wouldn't that be acting retroactively?

Mr. Schoenberg: Well, we haven't addressed the act of state because it hasn't been raised and it was an argument that was dropped.

I... I can answer the question though.

The act of state doctrine, as I understand it, is designed to prevent courts from entering into situations where there is no settled basis for deciding the case.

In other words, in the Cuban cases where there's a regime that has a completely different property system than ours, it would be unwise for the courts to venture into this political dispute over whether communism or capitalism is the appropriate way to adjudicate these cases.

In our case, we have a treaty, article 26 of the Austrian State Treaty says Austria must return property taken from Jewish families during the Nazi era.

So there's no dispute between the two countries as to whether or what type of law would apply in this case.

And under Sabbatino, it's very much qualified by the absence of a treaty governing the rule of decision.

So I... I don't think this case could ever pose an act of state problem.

Other cases do though.

That... and that's... that's really the point.

These cases against Mexico, against Japan, against Poland could potentially pose serious act of state problems.

This particular case doesn't.

We'd be happy to litigate it.

Justice Scalia: Whether it poses a problem or not, the suit is... is resting upon... is challenging an act of the state of... of Austria that... that occurred in Austria.

Mr. Schoenberg: That... that's correct.

Every suit against a foreign sovereign that's authorized under the Foreign Sovereign Immunities Act has the potential of interfering with foreign relations to the extent that it concerns the actual foreign country.

Justice Scalia: Right.

So the issue would be, should that be given retroactive application?

Mr. Schoenberg: In the act of state context.

Justice Scalia: Yeah.

Mr. Schoenberg: Well, I... I don't think--

Justice Scalia: This is the act of state context.

I mean, that's what's going on here.

Mr. Schoenberg: --The act of state doctrine is a choice of law doctrine, as I understand it, and... and so it, again, is not something that really operates retroactively, I think.

I don't think to... to echo what was said before that any country could have an expectation in how the act of state doctrine will apply in the particular case.

Justice Kennedy: How about the public acts?

Mr. Schoenberg: I'm sorry?

Justice Kennedy: This is a public act.

Mr. Schoenberg: Well, whether it's a public or private act to collect paintings, I'm not sure is so clear.

Justice Kennedy: Let's assume it's a public act.

Does it have an expectation that... that that will be adjudicated under the then-prevailing norms?

Mr. Schoenberg: I... well, yes and no.

Yes in the sense that we do have to establish that... that this property was taken in violation of international law, and I think that part of the statute clearly expects that the taking be adjudicated according to the state of international law at the time.

So to that degree I think yes.

But whether... whether it's a public or private act I think doesn't determine the... the retroactivity question.

Justice Kennedy: But we're told that at least in this country such acts were never adjudicated in foreign courts.

Mr. Schoenberg: I... I understood that to be the Government's position.

I don't know how the Government explains the Santissima Trinidad case, which is a case concerning private property on a ship where not one, but several, sovereigns claimed an ownership interest, and Justice Story said that our courts, of course, have to adjudicate the ownership of that private property, regardless of whether it was taken as part of a public act.

In the Santissima Trinidad, it's a confusing case, and I'm not sure, even having read it many times, how the ship came to be in its final location, but as I understand it, it went through many different, many different hands.

And the question at the end was, because the sovereigns were claiming the ship, which was potentially a ship of war, does that mean that the Court could not adjudicate the ownership of cargo on the ship?

And Justice Story said no.

Justice Souter: No, but he... isn't the... the concern about the applicability of that case to this one is precisely the reason you said.

It was... it was a suit between sovereigns and we're talking here about the sovereign immunity defense in a suit by an individual, and it's rather a stretch to take that as... as the basis for your law in this case.

Mr. Schoenberg: Well, I would... I would think that the act of state doctrine, which is what we were talking about, would... would be implicated even more strongly in a... in a suit involving multiple sovereigns than it would with regard to just an individual against a sovereign.

And I... I... the Government makes the position I think for the first time today that the expropriation clause sort of appeared from nowhere, but I don't think that's the case.

The first section of 1605(a)(3) very clearly is the Santissima Trinidad case.

That's the property is inside the United States in connection with the commercial activity.

The second clause I believe arises out of the Cuban expropriation cases and the Government's experience in those cases, and it was the intention of the Government in 1976 when the executive branch proposed this law and when the Congress enacted it to allow our courts to adjudicate these types of claims.

Justice Breyer: Well, what... what I'm looking for, I'm beginning to understand his answer better... I think there should be a way, not in your case necessarily, but in general, for the Government to say, court, stay out of this case, because of the international implications.

And what I was thinking is if we... if this is jurisdictional, follow Justice Powell's distinction, that won't be a problem because there'll be other ways for them to do it.

You're gradually closing those doors.

One way I had thought of was act of state, but you correctly point out that the act of state doctrine does not bar anything when the claim rests upon a treaty or other unambiguous agreement, and your quoting the '55 treaty might not help you because it's post-'48, but a... but 1907 might help you, so you're there with a treaty.

And so they say, well, we can't use that one, and there'll be a lot of cases when we can't.

So then I had mentioned this thing called a statement of interest, which I was looking for an explanation because I don't know what it is.

And there's a third thing that you mentioned, which is called a letter about immunity.

Well, that won't help them because that's what this statute is.

See, so that now we're back to the statement of interest.

Now, can... what is this thing, a statement of interest?

Can... in other words, is the statement of interest sufficient to achieve the objective that I was thinking was important, that not necessarily your case, but in many other cases there has to be a way for the executive to stop the judge from deciding the matter where it really does interfere with foreign relations.

Now, what's... do you see where I'm--

Mr. Schoenberg: I--

Justice Breyer: --Do you see that that is the thing that has been floating in my mind--

Mr. Schoenberg: --I understand--

Justice Breyer: --and I'm trying to settle on.

Mr. Schoenberg: --I understand.

It's, of course, difficult for us to talk about it because there is no statement of interest in this case, but--

Justice Breyer: But you can explain to me what a statement of interest is.

Mr. Schoenberg: --Right.

Justice Breyer: And whether a statement of interest is a sufficient legal route to achieve the end that I think is necessary and that they're arguing for.

Mr. Schoenberg: I believe if... if the Government were to file a statement of interest saying that the prosecution of this particular lawsuit would interfere with the foreign relations of the Government, I think a court would be proper in abstaining from adjudicating the case under the political question doctrine, very similar to this Court's holding last term in Garamendi, I think.

Chief Justice Rehnquist: But it wouldn't have to, in your view?

Mr. Schoenberg: I would say it would... it would be very... it would almost always have to.

I think... I think the Court should still be allowed to determine whether... whether there is really a basis for the Government's position.

I... I wouldn't say that our courts necessarily have to bend always to the Government's position with regard to a statement of interest.

I think that's the... the import of the first National City Bank case and... and... and the... the Sabbatino case and Alfred Dunhill also.

Justice Souter: But I... I take it that in no case, in no instance would you concede the appropriateness of... of the statement of interest being considered at the jurisdictional as opposed to the justiciability of--

Mr. Schoenberg: That's... that's absolutely correct.

We're talking today only about the jurisdiction question.

There hasn't been a statement of interest filed and there couldn't be a suggestion of immunity.

I'm sorry, Your Honor.

Unknown Speaker: --No, I'm sorry.

Justice Scalia: What do you do about Verlinden?

Mr. Schoenberg: Verlinden actually is a great case for us as I realized in reviewing it.

Verlinden is... is a retroactive application of the Foreign Sovereign Immunities Act.

In that case it was a foreign company against a foreign state, something for which there was no jurisdiction in the United States prior to the enactment of the Foreign Sovereign Immunities Act.

That action arose in 1975 and yet when it was brought under the Foreign Sovereign Immunities Act several years later, this Court directed the lower court to adjudicate jurisdiction under the Foreign Sovereign Immunities Act.

So that case is exactly a... if... if anything is retroactive, that's a retroactive application of the Foreign Sovereign Immunities Act.

But again, it goes back to this Court's statements in Landgraf that jurisdictional statute which confers or ousts jurisdiction is not impermissibly retroactive and that--

Justice Kennedy: Did... Verlinden didn't expressly discuss the right to retroactivity?

Mr. Schoenberg: --It absolutely did not discuss retroactivity.

It maybe never occurred to any of the Justices or the parties at that time that a jurisdictional statute like the Foreign Sovereign Immunities Act could be in any way--

Justice Scalia: No, but they... but we did say that it wasn't just a jurisdictional statute.

That's what we said.

Mr. Schoenberg: --The... the Court said that it was substantive in Republic of Mexico v. Hoffman in 1945.

The Court refers to sovereign immunity as substantive law.

But I think as this Court has said, whether you label the... the law substantive or procedural really isn't the question.

The question is, on what activity is... is the statute operating?

And here it's operating on the claim to immunity and how that is adjudicated by our courts in deciding whether the court has the jurisdiction--

Chief Justice Rehnquist: But that... that has a bearing on the Landgraf exception too.

If a statute is more than jurisdictional, you know, it isn't so easily disposed of under Landgraf.

Mr. Schoenberg: --It's correct, but I think this case presents a much better case than the two cases cited in Landgraf, the Andrus case and U.S. v. Alabama, although U.S. v. Alabama you could distinguish as something seeking only injunctive relief and therefore prospective.

In Andrus, this is a case brought against the U.S. Government after the U.S. Government... or while the case was pending, I think, the statute is changed to take away the amount in controversy requirement.

So, in other words, very clearly before the suit could not proceed, now the statute's been changed without any suggestion of retroactivity in the enactment.

And the Court says... this is 1978, I think... it's of no moment that this jurisdictional statute has been changed now to allow a suit against in... in a sovereign entity, the United States.

So I think this case presents actually a much better... much better case, because here, and these are other points that I wanted to raise, I believe the text of the Foreign Sovereign Immunities Act demonstrates that it was intended to apply to all claims to immunity, regardless of when the acts took place, the underlying acts took place.

Our... our third point--

Justice Souter: May I just ask you on that, I mean, isn't the objection to that that the... that the subject matter we're concerned with here is a subject matter which is defined in terms of property and the history of that property, and the history of that property as expropriated necessarily raises the time question?

And if the time is prior to the... the enactment of the statute, we necessarily, by the definition of present subject matter, get into an issue of retroactivity.

What... what's the answer to that?

Mr. Schoenberg: --Well, the answer is, again, in Landgraf that not every statute which affects prior events is impermissibly retroactive, and my point was--

Justice Souter: But it's not impermissibly retroactive, but it raises the question about the permissibility of a retroactive application.

Mr. Schoenberg: --Well, I... my view is that the Foreign Sovereign Immunities Act is... is a statute that is designed to take away the immunity decision from the State Department and place it in the hands of judges, and the purpose of the statute was that henceforth all claims to immunity should be adjudicated under this procedure, not the old procedure.

In other words, the U.S. Government's position should--

Justice Souter: Yeah, but even... even that, with respect, it seems to me that that begs the question.

The court is going to adjudicate.

The question is whether in adjudicating them it is going to draw a line based on... on... on this temporal consideration.

That still leaves it in the hands of the court.

But the question is whether in the hands of the court retroactivity ought to be a basis for making the jurisdictional decision.

Mr. Schoenberg: --I... I don't... I don't see... I don't think that it is with regard to the text of this statute.

I... even though the statute does refer to events that could take place prior to the enactment, the purpose of the statute, which is what I think the analysis requires that we consider, is to change the forum of the adjudication from the old State Department procedure to the... to the court procedure under these specific rules.

Justice Ginsburg: How does your... the discussion about the statement of interest then fit in?

It seems to me what you just said is, they meant to take it away from the State Department and put it in the hands of the court.

Mr. Schoenberg: The... the immunity consideration, yes, but I think the statute, the Foreign Sovereign Immunities Act, was not intended to change the rules, for example, with the act of state doctrine or with the statute of the limitations or with any of the other doctrines that might bar an older claim from... from entering court.

Our third point, this I don't want to spend too much time on, but it's our view that the Foreign Sovereign Immunities Act merely codified the common law of sovereign immunity, and therefore, it did not substantially change the law.

And this is not only my opinion.

If one looks at the State Department circular that was sent out in 1976 to foreign states, it says, this enactment will not substantially alter the rules for deciding sovereign immunity questions in U.S. courts.

So it was the position of the State Department at the time that they proposed this legislation that it merely codified what the State Department then considered to be the rules of sovereign immunity.

And we have an interesting situation, I think an unprecedented situation, because the common law itself depended on the views of the State Department, so we have a little bit of a reflexive situation.

The way I look at it, let us suppose, for example, that the... that instead of enacting the Foreign Sovereign Immunities Act they issued another Tate letter, another letter that merely said, henceforth we want the courts to adjudicate under this... under this regime.

So it's not a new statute, it's just a suggestion to the courts on how to decide cases.

Under this Court's ruling with regard to common law, non-statutory law, of course that... that approach would have to be applied retroactively, and I don't think it's any less retroactive just because the executive branch sent it over to Congress and said, we want you to pass the statute also.

Our last--

Justice Scalia: Any... any more retroactive?

Mr. Schoenberg: --Any more retroactive.

Our last... our last point is really the basis for the Ninth Circuit's decision, and that is, as to these parties in this case, there is no impermissibly retroactive effect, because Austria could never have had any expectation of immunity with regard to Mrs. Altmann's claims.

Justice Breyer: That would be a pretty good nightmare, wouldn't it, if we had to have judges trying to work out on a case-by-case basis, country by country, whether Turkey in 1921 when it was an enemy, had a... didn't have an expectation of being treated as a sovereign, but Hungary in 1962 had a different expectation, et cetera.

I mean, that... that... I think their point on that's a pretty good one, isn't it?

Mr. Schoenberg: Well, it... it's... but it's not a point about retroactivity, Your Honor.

The--

Justice Breyer: Well, it is because they're saying that unless you treat these things as a whole, you won't understand the problem.

And even if in your case the country had no expectation, there are so many countries that did that... and going into it case by case is so difficult that it would better to have an absolute rule.

That's their arguments.

Mr. Schoenberg: --It would be better, but that's not really how the Court's retroactivity analysis has gone over the last 10 years, and that's... that's why I certainly favor some of the earlier arguments.

I think it's easier to decide the case on those, rather than the way the Ninth Circuit did in evaluating the expectations, but if one doesn't decide in our favor on all of those other arguments, that the statute itself is jurisdictional, that Congress intended it to apply, that there's really no change in the law because it's the same as the common law of sovereign immunity, then really under Hughes one has to look at whether, as to the parties of this case, there is any retroactive effect, and that... that's... that's what the Hughes holding is.

It's a statute phrased jurisdictionally, but let's look at what happened here.

You have a new plaintiff with new incentives and a defense, substantive defense taken away.

That's the Hughes case.

And so it requires you to look outside the four corners of the statute to look at what was... what are you comparing the statute to, when... when in Hughes the Court said if it determines whether a cause of action can proceed and not where, the where question, of course, implies that you have to look and see if there are other jurisdictions where the case could be brought.

And in this case, as we've made very clear, Austria could always have been sued, at least since it was re-established after World War II for these acts, and as a matter of fact, Austria was required by the United States to enact restitution laws that were designed to afford people like Mrs. Altmann relief.

They have never asserted sovereign immunity in these claims in their own courts and they would not have been allowed to by the U.S. Government, and that sentiment, of course, is echoed in the subsequent treaty in 1955 and it's echoed in the Bernstein letter in 1948 that as to expropriations, as to property taken from Jewish families in violation of international law, this country does not recognize sovereign immunity anywhere, not in the states where... where... that were involved, and not in the United States, and that... that's... that's our last point and that's the Ninth Circuit's position.

If the Court has no further questions--

Justice Scalia: Is it... is it correct that... that we would be out of step with all other countries if we... if we allowed this suit to proceed?

Mr. Schoenberg: --Well, certainly not as a matter of... of the statute.

Our... our... in terms of--

Justice Scalia: No, no.

I mean... I mean, have... have all other countries, when they've changed to the new modern notion of limited sovereign immunity, have they all declined to... to apply it in a manner that the Government here would call retroactive?

Mr. Schoenberg: --Right.

I... I don't know how all states have done it.

I know that, for example, in Austria we cited the Dralle case, which concerned a post-war communist expropriation of a... of a subsidiary company in Czechoslovakia, and a German company was allowed to sue Czechoslovakia in Austria concerning the trademarks and... and the expropriation, and have an Austrian court rule whether that expropriation violated international law.

So I would say as to Austria, the argument is, and I think we cited also in our brief a statement by an Austrian professor, Seidl-Hohenveldern, who said that the courts... there's nothing in international law that prevents courts from adjudicating the rights and property taken in violation of international law.

Thank you very much.

Rebuttal of Scott P. Cooper

Chief Justice Rehnquist: Thank you, Mr. Schoenberg.

Mr. Cooper, you have five minutes remaining.

Mr. Cooper: Thank you, Mr. Chief Justice.

Just on that last point, the Dralle case, which is one that we address in our reply brief, does not stand for the proposition that Czechoslovakia's expropriation could be second-guessed in Austria.

Quite the contrary.

Austria determined that the legality of Czechoslovakia's activities in their own... in its own country were not subject to reconsideration in Austria.

Austria concerned itself only with whether, given its own neutrality as between Czechoslovakia and Germany, whether Austria could give effect to an expropriation as an act of war.

And it determined that it could not with respect to property located in Austria.

That issue has nothing to do with what's before the Court today.

Sovereign immunity isn't merely a form selection rule.

It confers on the foreign state the right to choose whether and where to be sued.

That's a substantive right.

It's a right this country has always understood as a right in a sovereign.

Austria's choice, if it did so choose, the circumstances under which it would provide remedies in its own country, either by statute or in its own courts, doesn't constitute a waiver of the sovereignty to which it had been accorded in this country throughout the current period up to 1976.

So this country has always recognized the difference between a sovereign's right to create a remedy, and this country has done so in its own instances with respect to events that were claimed to be the subject of reparations, and by doing so it has never suggested that it thought it was subjecting itself to the jurisdiction of a foreign court for individual claims to be able to look for more than the statute of the United States provided for.

In addition, with respect to the law immediately prior to the enactment of the FSIA, I think the suggestion was that somehow the United States had... had eroded the expropriation rule or that Congress thought that it was adopting the... codifying the law of the land with respect to expropriation in the FSIA, and that plainly is not true.

The legislative history, and more importantly the statements of the State Department, in particular the... the digest by John Boyd with respect to State Department decisions from 1952 to 1976 cited in our brief make it clear that the State Department considered this to be a fundamental change in the law.

The conduct being regulated here is expropriation or at the very least possession that goes back to events in 1948 alleged in the complaint.

It is not the mere question of the exercise of jurisdiction here or, worse yet, this mere substitution of another tribunal.

This is something that Congress focused on in each of the expropriation exceptions.

It identified the conduct that it thought the foreign sovereign had engaged in that justified one of our narrow exceptions to the general concept of foreign sovereign immunity.

Whether that was an express waiver under (a)(1), whether that was the exercise of commercial conduct that any private party could engage in under (a)(2) or the... or the expropriation of property in violation of international law in (a)(3), Congress identified the conduct that it thought justified the lifting of the generally applicable foreign sovereign immunity and decided that's the conduct we want to regulate.

And that's what we think justifies the variance from our general rule with respect to sovereigns, and that is a change in the law that requires application of the retroactivity analysis to treat those sovereigns fairly.

If there are no further questions, I have nothing.

Chief Justice Rehnquist: Thank you, Mr. Cooper.

The case is submitted.

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

Attribution:

The Oyez Project

Featured:

Beard v. Banks - Oral Argument

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

Case:

Beard v. Banks

Media File:

02-1603_20040224-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Ronald Eisenberg

Chief Justice Rehnquist: We'll hear argument next in No. 02-1603, Jeffrey A. Beard v. George E. Banks.

Mr. Eisenberg.

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

At his trial in 1983, George Banks' team of three defense lawyers presented 23 mitigation witnesses, including three forensic psychiatrists, his mother, brother, and co-workers, a priest, and two nuns.

The trial court instructed the jury that it must consider any mitigating evidence unless it was unanimous in rejecting it.

Now Banks claims that Mills v. Maryland, a ruling of this Court made after the completion of his direct appeal, entitles him to re-open his death sentence for the killing of 13 people.

In fact, Mills creates a new distinct rule regulating the manner of conducting a death penalty hearing that is not applicable retroactively and that in any case was reasonably applied by the State courts attempting to interpret it.

The primary issue in this case, though, is whether the Mills rule which prohibits unanimity requirements at the mitigation stage was merely a minor application of existing law dictated by prior precedent or whether it's instead Teague-barred.

Mills does cite Lockett v. Ohio for the general proposition that it's beyond dispute that the sentencer, quote/unquote, may not be precluded from considering mitigation.

But before Mills, the sentencer, quote/unquote, always referred to the judge or the jury, never to individual jurors.

That was a leap made for the first time in Mills.

That was new.

Even with a unanimity charge, although there wasn't one in this case, as we'll address, a jury still considered the evidence in the manner that juries historically have considered evidence, that is collaboratively.

Until Mills, the Constitution had never been read to forbid unanimity as to verdicts, whether general verdicts or special verdicts.

And even since Mills, as this Court recently said in Jones v. United States, we have long been of the view that the very object of the jury system is to secure unanimity by a comparison of views and by arguments among the jurors themselves.

So the question of jury unanimity, we believe, remained open not only after Lockett but even within the understanding of members of this Court at the time of Mills and thereafter.

In fact, in McKoy v. North Carolina, decided 2 years after Mills, four Justices of the Court rejected Lockett as supporting, let alone compelling, a rule against jury unanimity.

Now, whether the dissenters in McKoy can be said to be right or wrong about the meaning of Mills is irrelevant in this Teague context.

The question is that they believed that Mills, not to mention Lockett, did not resolve the unanimity question presented here.

Unknown Speaker: Mr. Eisenberg, tell... tell us exactly what you mean by jury unanimity because, you know, most States require jury unanimity in the... in the final verdict.

Mr. Eisenberg: Excuse me, Your Honor, yes.

I mean only at the stage of finding whether particular mitigating circumstances are present.

That is the... the jury unanimity question that was decided in the Mills and McKoy cases, as I've said, subject to dispute, strong dispute, among the Court that continued even after Mills.

Because this is a Teague case, the question, as I've said, is not whether Mills was right or McKoy was right or which side can be better defended now, but whether State court judges reasonably could have known what the outcome would be.

And since even within the Court there was such continuing controversy on the matter, it cannot be said that State judges reasonably could have known, and therefore the case is Teague-barred.

But that uncertainty continued even beyond McKoy because in the next similar case before the Court, Walton v. Arizona, the issue was presented on essentially the same basis as the Mills case had been.

The single hold-out juror scenario, that a single juror because of a unanimity requirement in Mills or because, in Walton, a preponderance of the evidence standard, could block consideration of mitigating evidence and thereby mandate a death penalty case.

Justice Kennedy: On... on the instructions in the red brief at page 8 and then at page 9, there are two different instructions set out.

This is in the respondent's brief.

And then the jury form which has to be checked is set out on pages 9 and 10.

In your view is that all we should consider when we interpret these instructions, or do you have some additional instructions that you wish us to refer to?

Mr. Eisenberg: Your Honor, I think that the instruction here was basically the same throughout, that the message as to unanimity regarding mitigation or not was basically the same throughout the instructions.

It's in the joint appendix at page 21.

It's repeated at page 26, and we think embodied in the jury form... I'm sorry... also at pages 66 and 67.

And in each of those cases, the jury was instructed first that it must be unanimous to find aggravation or no mitigation and then that it must unanimously find whether any... find aggravating circumstances which outweigh any mitigating circumstances.

But, of course, the threshold question is whether the State courts could even have known that there was such a thing as a rule against unanimity, whether or not unanimity was actually required on the facts of this case.

And the Walton case, as I've mentioned, is relevant to that question because in Walton the same argument was at issue, and the argument was that because of the preponderance of the evidence standard, a hold-out juror or even really 12 hold-out jurors, so to speak, could be somewhat persuaded by mitigating evidence, could think it significant, but not quite past the tipping point required by the preponderance standard and yet be precluded from considering that evidence at all in the weighing stage.

And yet, the defendant lost that argument in Walton.

And again, the relevance for Teague purposes is to leave the State courts in the position of trying to determine before Walton, before McKoy, before Mills, in this case in 1983 that the Eighth Amendment through the Lockett case somehow precluded the establishment of unanimity.

Justice Breyer: Well, with Lockett... with Lockett they... what Lockett says is that the sentencer cannot be precluded from considering as a mitigating factor any aspect of the defendant's character or record or any circumstance.

Now, one thing that could have meant... one thing... is that you cannot execute a person unless 12 people think that not only that crime is unusually terrible... that's aggravating... but also that it outweighs in this person's life any good things he wants to bring in.

That's his character.

And 12 people have to come to that ultimate judgment.

Now, if that's so, 12 people have to come to that ultimate judgment, 12 people have not come to that ultimate judgment when in fact 11 would let him off, but one blocks it by saying I don't agree that this is the mitigating circumstance.

So if that's what Lockett means, it would be obvious that that wouldn't satisfy it.

Mr. Eisenberg: Well--

Justice Breyer: Well, what else could Lockett mean is my question.

Mr. Eisenberg: --Lockett... Lockett--

Justice Breyer: What else could Lockett mean that would make sense in the context of the death penalty?

And you'll have a lot of answers, but I want to know what they are.

Mr. Eisenberg: --Excuse me, Justice Breyer.

Justice Breyer: Yes.

Mr. Eisenberg: It... what it also could have made sense is that the jury as a whole in the historical manner of juries had to consider the evidence, and there's no doubt that it could have meant the interpretation that you suggest.

And we know that because Mills held that and McKoy held that.

So, of course, it could have meant that.

But the fact that it could have meant that and was eventually held to mean that over continuing dissent by the Court is not... does not resolve the Teague question.

Justice Breyer: No, it doesn't, but I want you to tell me precisely in a reasonable way... and I'm going to wonder if that's... if it is reasonable or not.

That's going to be the issue... what other thing it might have meant.

And I... I'll draw here on the concurrence in Penry where the statement is made it's obvious it's meant what I just said it meant because anything else would have been arbitrary in the context of our arbitrariness jurisprudence.

Mr. Eisenberg: Well--

Justice Breyer: So... so you tell me... I understand the words, well, historical, et cetera, but I want to pin you down more than that.

Mr. Eisenberg: --Yes, Your Honor.

Let me speak first to Penry.

Penry did not involve this question of unanimity, and the reason I believe that the opinion was taken that it was obviously an application of Lockett is because it involved very much the same kind of categorical question that was presented in Lockett.

In the Penry case, there were three questions before the jury, three mitigating categories given to the jury.

The defendant said, I have some evidence that doesn't strictly fall within one of those three categories.

In Lockett, there were three categories of mitigation given to the sentencer, and the defendant said, I have some categories of mitigation that don't fall within those three categories that my sentencer was limited to.

That's why Penry is a straightforward Lockett case.

Justice Breyer: But I'm thinking of Penry's commentary about Mills or whatever.

I may... I may get these cases mixed up, but I thought that Mills was characterized as a case that follows obviously--

Mr. Eisenberg: Your Honor, I--

Justice Breyer: --from Lockett--

Mr. Eisenberg: --I could be wrong, but I... I remember no such statement from any of the opinions in Penry or really in any other case except for the... the Mills and McKoy cases where the subject was in dispute.

So that to the extent it was obvious to some members of the Court, it was far from obvious to other members of the Court, and therefore certainly couldn't have been obvious to the State court judges who were expected to know before either of those cases were decided.

Chief Justice Rehnquist: --Mr. Eisenberg, the court of appeals has changed its mind in this area, has it not?

Mr. Eisenberg: That is certainly our view, Your Honor, and that is very relevant to the second question presented here, which is whether, even assuming that the Mills rule could be applied retroactively, there was a... an unreasonable application of that rule by the State court.

Now, originally this question came before the Third Circuit Court of Appeals in 1991 in the Zettlemoyer case.

It was the same type of instruction that's presented here that tracked the structure of the Pennsylvania sentencing statute.

And the court of appeals, the Third Circuit Court of Appeals, said that that instruction was not inconsistent with Mills, and it said it was not inconsistent with Mills because an instruction that requires unanimity as to aggravation but doesn't mention unanimity as to mitigation is not an instruction that requires unanimity as to both.

It's the same theory that we have been presenting in this case all along.

In the next case that came up before the Third Circuit in 1997 in Frey, the Third Circuit held, no, that kind of instruction, with all the words and proximities at issue there, did violate Mills.

Chief Justice Rehnquist: Did it... did it treat the Frey case as overruling its earlier case?

Mr. Eisenberg: It's... it treated it as distinguishing, Your Honor, but that... Mr. Chief Justice, but we think that that's irrelevant for our purposes because the Frey case was a pre-AEDPA case, certainly wasn't applying a deference standard.

And the Frey case not only wasn't applying the deference standard, but went so far as to characterize the State court's interpretation of its instruction in these capital cases as plausible.

Now, whether or not plausible means reasonable--

Justice Stevens: Could I interrupt?

Mr. Eisenberg: --Excuse me.

Justice Stevens: May I interrupt with just one question?

Because I'm... I'm a little rusty on just what the sequence of opinions was.

And I... I think you have one impression of the case if you just read the instructions because I think you've got a very strong argument on the instructions.

I get a different impression of the case when I look at the jury form, the verdict form, which in effect requires a check to show the jury acting unanimously.

And my question is at the first go-round, did the court of appeals actually focus on the... the jury form as well as the instructions?

Mr. Eisenberg: The court of appeals in the Zettlemoyer case, the first one in 1991, focused on both, Your Honor.

Justice Stevens: It did.

Mr. Eisenberg: And the court of appeals... it was faced with the... the... I believe that the page exactly is 923 F. 2d at 308.

It's cited in our... in our brief.

The court of appeals specifically quoted both the charge and the verdict form, and we would suggest that both were legally parallel to the charge and the form involved in this case.

And the court made its comment in regard to both of those provisions.

Justice Stevens: Because the jury form does seem to imply a concept of unanimity because they got to require... you know, the form definitely refers to unanimity.

Mr. Eisenberg: Well, the form refers to unanimity in exactly the same way that the charge does, I would submit, Justice Stevens, because it says, we, the jury, unanimously sentence the defendant in the above matter, and then you have two options, just as the statute in Pennsylvania and just as the judge's charge laid out.

We unanimously sentence the defendant in the above matter, and it says to at least... we... we, the jury, unanimously sentence the defendant in the above matter to death or life imprisonment.

We, the jury... have you found unanimously, and then the two options.

At least one aggravating circumstance and no mitigating circumstance or... and there's a big or in the middle of the verdict form... or one or more aggravating circumstances which outweigh any mitigating circumstances.

So--

Justice Stevens: Yes, but... but the key point is that in the mitigating circumstances are, there are one, two, three options.

They just checked one.

Mr. Eisenberg: --Yes, Your Honor.

There are blanks next to the mitigating circumstances, but frankly, we still have those blanks next to mitigating circumstances now after Mills, after it's been changed, in order to make it perfectly explicit that any one juror can vote for mitigation.

Justice Stevens: And see, it isn't explicit here, and the check seems to me to indicate that they were unanimous on mitigating circumstance number 1, but they were not on the others.

Mr. Eisenberg: Well--

Justice Stevens: And so it seems very likely that some of the jurors may have considered... felt they could not consider mitigating circumstance 2 or 3.

Mr. Eisenberg: --Your Honor, two things.

First of all, the reason that there are checks there is that the jury, under the Pennsylvania structure, is essentially required to give a second look at mitigation in the weighing charge, even if some of those jurors may have... even if the jurors may have been in dispute about the existence of those mitigating circumstances.

So in order to apply the first phase of the instructions, they have to decide whether all of them find no mitigation.

If all of them don't find the absence of mitigation, then they go to the second stage, and at that point, they are all required to look at mitigation, even if they might have voted against it the first time.

So the statute appropriately tracks the kind of mitigation that all of them are required to consider in the weighing process.

The second point I want to make, however, Your Honor, is that, of course, this is not the first time that a verdict form like this and an instruction like this have been looked at.

And I must emphasize this is a deference case under section 2254.

As I explained, the Third Circuit in 1991 looked at a verdict form like this and said, no, this is not a violation of Mills.

Other circuits around the United States have consistently held that this kind of instruction and verdict form are not a violation of Mills.

Where the... where the instruction and verdict form explicitly require unanimity as to aggravation but don't explicitly require unanimity as to mitigation, then there's no violation of Mills.

And that's--

Justice Breyer: And so... so if in fact we have 12 jurors and all 12 believe that this person was awarded the Congressional Medal of Honor and 11 of them think that means he shouldn't get death, but one of them thinks it isn't that much of an offsetting factor, on your reading of this, the... they could conclude after Lockett that it's death because we don't have unanimity on whether that Congressional Medal offsets the horrible crime.

Mr. Eisenberg: --Justice Breyer, for purposes of the second question here, the deference question, our argument is that that is not the case, that the jury here was not permitted to vote for death or not required to vote for death automatically merely because they were not unanimous in failing to find a particular piece of mitigation.

Justice Breyer: So if they had been... because let's... I... I was reading the jury form differently, and I might be wrong.

I'll go back to that.

But take my hypothetical and I want to go back to the retroactivity question.

And on that, you're thinking, well, before Mills a State that came to that conclusion would not be violating the Constitution.

Mr. Eisenberg: What I would say, Your Honor, is that before Mills a State that came to that conclusion would not have acted unreasonably for purposes of the Teague standard.

Justice Breyer: Yes, all right.

Now, suppose in Mills... suppose you're right.

And now in Mills you would say, well, that's not right, and the reason that's not right is because the role of the juror is not simply to find the facts, but also to weigh the significance of the mitigating fact against the horror of the crime.

That's what Mills then on that view would have said.

Well, why isn't that terribly important?

I.e., that is a radical shift in the role of the juror from what was previously viewed as simply finding facts, now to a person who is going to make the ultimate weighing question in his own mind in respect to life and death and the person's career.

Mr. Eisenberg: Well, Your Honor, we think it is a significant change and that's--

Justice Breyer: But amazingly enough to fall within in... you see where I'm going?

Mr. Eisenberg: --Well, that's--

Justice Breyer: I'm... I'm saying--

Mr. Eisenberg: --to the same exception.

Justice Breyer: --a watershed rule.

Is it a watershed rule?

Mr. Eisenberg: Yes, yes.

Yes, Your Honor, and the answer to that is--

Justice Breyer: If it is a watershed rule, then of course it's retroactive.

Mr. Eisenberg: --Then answer to that is, Your Honor, that the fact that a rule is new enough to be Teague-barred is hardly enough to make it... render it--

Justice Breyer: In other words, it's not that--

Mr. Eisenberg: --a second Teague exception.

In fact, Your Honor, this Court has on numerous occasions held that rules, including Lockett-based rules, are not new, and yet not a single one of them has been held to be a second exception.

The Court has made clear that that category is exceedingly narrow, that such exceptions will be very rare, and surely in every other case where a... an important Lockett-based rule has been announced that has been found new for Teague purposes, the Court has gone on to reject second exception status here.

In fact, even Banks in his brief here does not argue second exception status for the Mills rule.

In further comment on the Mills rule, however, I would... I would like to... on the Teague bar, Your Honor, I would like to point out, as I've mentioned, that the Court has previously considered Lockett-based claims for Teague purposes.

In Simmons, for example, and in the Caldwell case, the Court established rules that were explicitly based on Lockett concerning... concerning the jury's consideration of evidence at the... at a capital sentencing hearing.

And yet, in both of those cases, even though I would suggest they were really smaller leaps from Lockett than Mills was, the Court has held that those were new rules that were not entitled either to old rule status or to second exception status.

And as in the cases holding that Simmons and Caldwell were new rules, we believe the Court should hold that Teague is a new rule.

Now, to return to the question... to the deference question, which--

Chief Justice Rehnquist: --You mean that Teague is a new rule.

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

That's Mills is a new rule.

Chief Justice Rehnquist: Mills is.

Mr. Eisenberg: Thank you.

To return to the deference question, the second question presented, as I was saying, the Third Circuit held that the State court's interpretation, the one that was victorious here in State court, the same interpretation based on the same State court precedents, was plausible.

And whether or not plausible means reasonable, it surely does not mean unreasonable.

And yet, in the first post-AEDPA case involving Mills that came along in the Third Circuit, this one, the Third Circuit held without discussion of either its original 1991 ruling that had upheld this charge or any discussion of its 1997 ruling that had noted that the contrary construction was not unreasonable, the Third Circuit held in this case that no court could reasonably have applied Mills in the way that the State court did.

And the... the reason that all the other circuits have disagreed with the Third Circuit on that and that the Third Circuit itself has come to a different position on that gets back to Mills itself because Mills was not the kind of charge that was involved in this case.

In Mills, the charge explicitly required the jury to be unanimous in order to find the presence of mitigation.

Chief Justice Rehnquist: Just to get back a minute, Mr. Eisenberg, this case was decided before Mills was decided.

Right?

Mr. Eisenberg: The direct appeal in this case--

Chief Justice Rehnquist: Yes, the direct appeal.

Mr. Eisenberg: --was completed, including denial of certiorari by this Court, before Mills was decided.

Yes, Your Honor.

And in the Mills case, the Court was faced with a verdict form which explicitly required unanimity to find... to mark yes for mitigation and explicitly required that only those mitigating circumstances marked yes... that is, unanimously marked yes... could be considered at the weighing stage.

Now, contrast that in both respects with what happened here.

There was no instruction on unanimity for yeses.

There was no instruction that only unanimous yeses could be weighed.

Instead, we have only an instruction requiring unanimity for no votes on mitigation.

And I think that there's a further important point about the Mills case.

Justice Ginsburg: But, Mr. Eisenberg, you would concede that those... those questions are... are certainly ambiguous.

The... Pennsylvania made the change just to clarify that it was the individual juror and not the... the group.

You can look at those and conclude that just like you had to find the aggravated unanimously, so you had to find each mitigating unanimously.

The form is certainly susceptible to that reading.

Mr. Eisenberg: Well, Your Honor, I would suggest that if it is susceptible to such a reading at all, it is far from the primary meaning, and the reason for that is really just the rules of English grammar.

The two stages of the process that are laid out in the instruction in question are not parallel.

They are dramatically different.

So the first stage says, you must be unanimous in finding aggravating circumstances or no mitigating circumstances.

And there's no question, as a matter of grammar, that there's only one verb in that sentence with two objects, aggravating circumstances and no mitigating circumstances.

The verb, unanimously finds, must apply to both nouns.

In the second sentence, we have a different structure.

Unanimously find--

Justice Ginsburg: Mr. Eisenberg, if you... if you were... if you were a... a defense lawyer and you knew that the... the law was that each juror could individually decide the mitigators and you were confronted with a form like this, would you object?

Mr. Eisenberg: --Well, Your Honor, had the Mills rule already been decided, I think somebody might have raised an objection.

It may or may not have succeeded but certainly had an objection been able to be made contemporaneously, we wouldn't have to have worried about error being built into the trial and the matter could have been handled expeditiously.

That's why we have changed our verdict form, not because Pennsylvania has changed its understanding of what has always been the structure of its sentencing process, but because once Mills was decided, once the matter was constitutionalized, it became certainly wise for the court to attempt to avoid further litigation on the question by making it explicit.

Justice Ginsburg: Before it was just the law and not constitutional, it was all right to be... to be ambiguous, but once it was constitutional, it had to be clear?

I'm not following.

Mr. Eisenberg: Well, our... our argument, Your Honor, is that the fact that they changed the form in response to a new rule is not evidence that they previously read their statute in a different way.

In fact, the State supreme court has always said that it has always read the statute to require unanimity only as to the absence, to the rejection of mitigation and not to the finding of any particular mitigation.

But in reference to your question concerning arguments of counsel, in fact, there was no argument of counsel from either side here that the jury had to be unanimous about mitigation.

In the same manner that Your Honor has suggested, presumably the prosecutor, had he believed that the jury had to be unanimous about mitigation, it would have been to his advantage to say so and to argue to the jury, all 12 of you have to find these before you can consider them.

He didn't say anything like that.

And in fact, here's what the defense lawyer said in volume 6 of the trial transcript at pages 2300 and 2301.

He wasn't, I believe, specifically referring to mitigation, but he said, quote, think individually, decide this individually.

All it takes is one person to save his life.

Now, in light of the manner in which the case was argued to the jury and in light of the manner in which the judge presented the charge and laid out the verdict form, we believe that the jury would not have... cannot be assumed to have come to the wrong conclusion here, and surely that the State court and, as I've mentioned, every Federal circuit court looking at similar instructions and verdict forms, could not be said to have acted unreasonably in finding the absence of a Mills violation.

Thank you.

If there are no further questions, now I'd like to reserve the remainder of my time.

Argument of Albert J. Flora, Jr.

Chief Justice Rehnquist: Very well, Mr. Eisenberg.

Mr. Flora, we'll hear from you.

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

Lockett and Eddings established a fundamental principle which basically provides that a State which creates any barrier which precludes a sentencer from giving full consideration and full effect to mitigating evidence relating to a person's character, background, and circumstances of the offense is constitutionally impermissible.

When we look at Mills and take into account the decision in McKoy, the unanimity instruction in Mills, in a weighing State such as Pennsylvania, essentially was a different type of barrier which precluded jurors to give effect to mitigating evidence.

In a non-weighing State, the unanimity requirement would probably be appropriate, but in a weighing State, what happens is a single juror can say to other 11 jurors, I don't believe that this particular piece of evidence satisfies a mitigating circumstance, and that single juror can preclude those other 11 jurors from giving effect.

Justice Ginsburg: That might have been, Mr.... Mr. Flora, the logical extension of Lockett, but to say that Lockett itself compelled or directed that extension I think is quite a stretch.

Mr. Flora: Justice Ginsburg, I think when you look back at the legal landscape over a period of time, going back from Hitchcock, to Skipper, to Eddings, in all of those cases, the Court dealt with different types of barriers.

The Court dealt with different pieces of factual evidence relating to character and background and circumstances of the offense.

When the Lockett rule was initially announced by a plurality of the Court, the Court could not perceive in the future every different type of barrier that may come about, and so what happened over a period of time, when you took the Lockett rule, you were essentially applying it to a variety of factual different situations, and each time the Court would look at a particular barrier, which it had not perceived in the past, and if it precluded a juror or a jury from giving effect to mitigating evidence, it struck down that barrier.

And that's where we're coming from here.

So when we say that it is a stretch of Lockett, I don't believe so.

I think it is a logical consequence of Lockett.

I think it is dictated by Lockett and the cases that followed after that.

Justice Ginsburg: Does it... does it mean nothing that this Court was so sharply divided and that you really have just an opinion?

The lead opinion is labeled opinion of the Court, but Justice White disassociated himself from the reading.

He... he had a much narrower view of the case.

Mr. Flora: If we look at Mills and if we look at the dissent, in looking at the dissent, my interpretation was that the issue was over how a reasonable juror would have interpreted the particular instructions in that case.

I did not glean from the dissent that they thought a unanimity requirement would not constitute a barrier to a jury or jurors giving effect to mitigating evidence.

If you look at McKoy... and I think this is a question that Justice Breyer had posed about a case... in McKoy at 494 U.S. at 438, the Court says in the majority opinion, we reason that allowing a hold-out juror to prevent the other jurors from considering mitigating evidence violated the principle established in Lockett v. Ohio, that a sentencer may not be precluded from giving effect to all mitigating evidence.

Chief Justice Rehnquist: Yes, but Lockett didn't put it quite that way, did it?

I mean, frequently a later decision will kind of characterize an earlier decision in a way that tends to support the later decision.

Mr. Flora: That is correct.

I... I would agree to a point.

If we look at Lockett, Lockett did not say that an evidentiary ruling which precluded the consideration or giving effect to mitigating evidence was constitutionally prohibited.

Chief Justice Rehnquist: It said that the... it said the court had to admit any evidence dealing with the defendant's character.

Mr. Flora: That is correct, but what I'm saying is when you look back at Lockett, at the time Lockett was decided, I don't think the Court could... could envision the various types of barriers that a State could create which would preclude a sentencer from giving effect to mitigating evidence.

So each time a barrier came up, whether it was in Eddings or Skipper or Hitchcock--

Chief Justice Rehnquist: But what happened in Lockett was quite different than what was involved in Mills.

In Lockett, evidence was offered to be considered by the jury.

The court said, no, that's not what we think of as mitigating evidence.

And our Court said, any evidence bearing on the defendant's character is admissible for consideration by the jury.

Now, that's a long step from the way you describe Mills.

Mr. Flora: --The way I describe Mills is essentially again that in order to give effect to mitigating evidence, you simply cannot have a requirement which allows one juror to preclude the other 11 from giving that effect.

And it's my position that that is... that concept is dictated by the Lockett rule.

Justice Ginsburg: If there's doubt about that, I mean, one might say you would prevail on that argument in a debate, but Teague requires more, doesn't it?

Mr. Flora: There is language as to whether if there is a reasonable debate amongst the minds of the jurors.

The problem with that concept, when you look at the history of capital jurisprudence since Furman on forward, I can only think of probably two cases in which this Court has been unanimous in its decision, one of which was Hitchcock v. Dugger.

If we say that the rule upon which a defendant seeks to rely is a new rule, if so much as one Justice disagrees, I don't think we could ever have then a rule that would be based on precedents.

That's the problem I have.

Justice Ginsburg: Does it make any difference if it's four Justices, as it was in McKoy, do you think?

Mr. Flora: I don't think you can honestly quantitate it... put a quantitative amount to it.

I just think that--

Justice Ginsburg: Does it make any difference that the dissenters say Lockett didn't remotely support the rule that a mitigator found by only one juror controls?

Mr. Flora: --I think... that's a tough question.

Justice Ginsburg: But that is what... what was said in McKoy by the dissenters.

Mr. Flora: That is what was said in McKoy by the dissenters, but the majority in McKoy disagreed with that.

Justice Kennedy: Would it be all right, let's say today after Mills, for a trial judge to instruct a jury, ladies and gentlemen of the jury, this is a case of utmost gravity from the standpoint of both the defendant and... and the families of the victims?

And your verdict will be most valuable if you are unanimous as to mitigating and aggravating factors.

You should not surrender your individual views.

If you cannot come to that conclusion, then I'll give you further instructions.

Could a judge say that?

Would that serve a purpose?

Mr. Flora: A judge could not say in light of Mills.

I think, however--

Justice Kennedy: It's too dangerous?

Mr. Flora: --especially in a weighing State because you're talking about unanimously find aggravating circumstances.

Then you also used the phrase unanimously find mitigating circumstances, and that's the problem that I have.

I think clearly a court can give guidance to a jury in the consideration and weighing of evidence, and quite frankly, that happens all the time.

Justice Kennedy: Because it seems to me that what I've said is right, that if they are unanimous on all factors, that that's... that's the jury functioning at its best.

And you would give further instructions in the event that the jurors cannot surrender... should not surrender their individual views on mitigation, and if that's the way it has to come out, fine.

But I want you to try to do this.

You think that would be error?

Mr. Flora: If you tell the jury to try to unanimously find all of the mitigating factors, the problem I see with that is what happens if they don't.

In Pennsylvania there is no remedy if there is a deadlock on the finding of a mitigating factor.

Justice Kennedy: Well, of course, my hypothetical was half... half completed, and then we'd have to fill in what would happen and I... I didn't bother to do that.

But it does seem to me that the instruction I suggest in the first instance is... is valuable and also reflects the understanding at least pre-Mills that... that many people in the legal system had as to the way the jury functions.

Mr. Flora: It was an understanding of the way the jury functions pre-Mills.

I would agree there, but in the penalty phase, in taking a look at the way the unanimity requirement would operate in that phase, it is very different--

Justice Kennedy: Well, I... I think for your case you... you have to amend your statement.

If you say this was the general understanding as to the way the jury functions pre-Mills, I think you should say pre-Lockett or... or you're in danger of losing your Teague argument.

Mr. Flora: --Well, when I think of a unanimity requirement in a non-capital setting, if one juror holds out, that juror cannot force a guilty verdict.

In a capital case, if one juror holds out and precludes the other 11 from giving effect to mitigating evidence, that one juror essentially can effect a sentence of death.

Justice Breyer: That's true, but now what are you... what do you say to a different reading of Lockett, which would be the following?

A State official reads Lockett and says, this is how it's supposed to work, that the defendant can introduce evidence on anything he wants and the jurors can consider any of this mitigating evidence, and they do consider it.

But when it comes time to vote, the only things that the jurors can use to offset the aggravating factors are mitigating aspects of the defendant's life, that they unanimously agree are, one, in existence and, two, are mitigating.

They look at Lockett and say, of course, the jurors considered everything.

Now... now it comes time to vote, and at this point these are the rules in our State.

Now, what I think is the hardest for you is, while that might not be the best reading of Lockett and it certainly doesn't prove to have been the true reading of Lockett after Mills, can we say it's an unreasonable reading of Lockett?

Mr. Flora: I think we can.

Justice Breyer: Because?

Mr. Flora: I think we can because merely giving consideration to mitigating evidence would, I think, also necessitate the ability to give effect to that evidence, and I think that's what's essential.

If we're left with the fact--

Justice O'Connor: But you... you don't seem to mention our holding in Saffle v. Parks which was a much harder, closer case in my view about whether it was dictated by Lockett than your case.

And the Court said no.

And in light of Saffle, I... I don't see what you have left going for you on that argument.

Mr. Flora: --In Saffle, you were dealing with an anti-sympathy instruction.

Sympathy in and of itself is a concept, but it's not evidence of character.

It's not evidence of background.

It's not evidence of the circumstances of a crime.

Justice Kennedy: Sympathy is a... a conflict?

Mr. Flora: Is a concept.

Justice O'Connor: Concept.

Justice Kennedy: Oh, concept.

Excuse me.

Mr. Flora: When you introduce sympathy, as the attempt was to be done in Saffle, that by doing that you're bringing into the picture something that is totally irrelevant and from which a jury would not be able to make a reasoned moral inquiry into the culpability of the defendant to determine whether a sentence of death or life should be imposed.

So when I look at Saffle and I look at what Saffle was attempting to do, I think that's very different than having a barrier which precludes giving effect to character evidence and background evidence and evidence specifically relating to the circumstances of an offense.

I see it as being very different under the circumstances.

Justice Breyer: Is... is... the point I was thinking before and I'd... it was Justice Kennedy actually.

I think when he... he wrote in concurrence.

It is apparent the result in Mills fits within our line of cases forbidding the imposition of capital punishment on the basis of caprice in an arbitrary and unpredictable fashion or through arbitrary or freakish means.

That's Franklin and California v. Brown and Furman and so forth.

All right.

Think back to what my... my effort to characterize a reasonable State interpretation of Lockett different from yours.

Well, can you say why would that be in your opinion, the State saying they consider everything?

You remember what it was.

Right?

All right.

Why would that be freakish or arbitrary?

Mr. Flora: It would be freakish or arbitrary again I think because mere consideration of evidence by a jury is not enough.

I think you have to give that evidence effect.

Without giving that evidence effect, I think you can end up with an arbitrary imposition of the death penalty.

Justice Souter: No, but the question is how you give it effect.

Eddings and Lockett said you cannot preclude the jury, all 12 people, categorically from giving a certain kind of mitigating evidence any consideration.

The question in Mills was can you preclude one juror from giving dispositive effect to an item of evidence in such a way as to determine the verdict.

Those are two very different questions.

They can be placed under the umbrella of what effect must jurors be allowed to give to mitigating evidence, but they are very different questions within that umbrella.

And it seems to me that because the questions are different, there is not something irrational or capricious in someone having a question... in someone being uncertain of the answer to the second question even though the first question has been answered in favor of admissibility.

What do you say to that?

Mr. Flora: I think that it still comes back to how the unanimity requirement operates.

And the mechanism that's being utilized in employing that unanimity requirement is the actual juror, and if that juror is again I think a lone, hold-out vote, then I think under the circumstances that is a clear violation of the Lockett rule.

Justice Breyer: Is... a different question.

Is the jury form in the record... do we have it?

I'm... I'm looking at pages 66, 67, and 68 of the appendix where... of the joint appendix where you have the form.

And I'm trying to work out whether this is or is not ambiguous.

And it seems to me it might depend on the way in which it appeared on the page because you see the word unanimously appears over here in question 2 on page 66, and depending on how this is indented, it might be whether the jury would reasonably think that that word unanimously does or does not apply to the questions that are on page 68.

Mr. Flora: It's improperly indented.

When you go back and I think you could actually look at the... at the jury--

Justice Breyer: But the form itself is... it's indented.

If it were indented, it would seem that the unanimously would govern what follows thereafter, but if it's not indented, it seems to me a judge might reasonably think that that word unanimously didn't govern what... what follows thereafter.

Mr. Flora: --When you have we, the jury, have found unanimously, my recollection of the form was that it is actually not indented like that.

Justice Breyer: If it's not indented, then... and this is the other part of the case.

See, if... if it's not indented, then you look at the instruction and in the instruction itself, nowhere does the judge say anything about having to find the... the mitigating factors unanimously.

He doesn't say that.

And then you look at the jury form and again, if it's not indented, it really doesn't seem to say that they have to find this unanimously because the word unanimously seems to apply here on the page to the first three things that are blank.

And then we get a new section.

In the new section it doesn't say anything about unanimous.

So... so that was what I want you to reply to because the question is whether a judge in that State court could reasonably have taken this form and the instructions and said, well, it... it doesn't say they have to be unanimous.

They wouldn't have thought they did.

Mr. Flora: My understanding of the verdict form when it was developed was that we, the jury, have found unanimously basically applies to all of the check-off items.

Justice Breyer: All of those things.

Mr. Flora: I beg your pardon?

Justice Breyer: And... and if a judge... if a judge in the State says, well, I think it didn't, what would you point to in reply?

Mr. Flora: The only thing that I could point to is the actual verdict form itself.

That's all I could point to.

I'd like to go back a minute on the... the question on the jury question... or the jury instructions.

Jury instructions in capital cases to begin with are very difficult to get across to jurors.

Just traditionally we've had a tough time.

When you look at a case like this and you have the jury going through the guilt phase of the case, that jury is already conditioned to a unanimity requirement in finding guilt.

When you then carry them over to a penalty phase and you take the instruction that we have here and you give that instruction to them, given the fact it's the way they've already been conditioned and listening to that instruction and hearing the word unanimously repeated and repeated, there is a substantial likelihood that the jury would interpret that instruction as requiring unanimity both as to the aggravating and mitigating circumstances.

And that's the problem with the instruction.

And then when you take the verdict slip and put that on top of it, I think that compounds everything under the circumstances.

And that's the problem here.

When we... staying with this, when the State supreme court looked at the Mills issue... and they decided Mills on the merits in 1995.

It was not decided during the direct review process.

Pennsylvania has a very unique procedure dealing with finality in capital cases.

In 1995 when the State supreme court applied Mills on the merits, what they simply did was they said, we interpret our statute as not requiring unanimity.

They looked at only a portion of the instruction, I believe approximately three sentences, and they say, the instruction tracks the language of our statute and therefore there is no violation of Mills.

I suggest that's an unreasonable application because what they didn't do is apply the correct standard in--

Chief Justice Rehnquist: But that was something in 1995, and you're talking now about a case that was over on direct appeal before Mills was decided.

Mr. Flora: --That is correct, but in 1995, when the case was decided, the Pennsylvania supreme court had the benefit of Mills.

And that's what's different about this case.

Pennsylvania has a very different and unique procedure which essentially leaves open the direct review process because in capital proceedings in Pennsylvania prior to 1996, the State court on collateral review would apply any existing constitutional precedents to a claim, even though it was not considered first on direct review and even though the decision came up or was decided by this Court after the direct review process.

It's a very different concept there.

So there's a question here as to when finality I think occurred.

Justice Ginsburg: But wouldn't that undercut this Court's remand the first time around?

I mean, if it were... if it was still on direct review, then there wouldn't be any question about applying Teague and yet we sent it back.

Mr. Flora: And I understand that, and when you sent it back, one of the questions we had in our own mind is whether in fact this Court was fully aware of Pennsylvania's unique process dealing with finality in capital cases.

In looking at Teague, one of the very first things you have to do is determine when the judgment is final.

Teague itself speaks in terms of conventional notions of finality, but that doesn't mean a State can't develop its own concept of finality to which the Federal courts should give respect.

After all, States have the primary responsibility for establishing rules of criminal procedure and protecting the rights of an accused.

With that in mind, concepts of federalism and comity which underline the basic precepts of Teague are not offended if a State court decides to keep open its direct review process and on collateral review say, look, here's a decision that came down from the United States Supreme Court.

We are going to apply it to the facts of this case because we want to be absolutely certain that execution of an individual is beyond constitutional reproach.

Justice Kennedy: Yes, but that's the State making a policy that its State court judges will do that, and that's different from a Federal intrusion.

Mr. Flora: I think the States have a right to do that.

May I finish the question?

Rebuttal of Ronald Eisenberg

Chief Justice Rehnquist: I think you've answered it, Mr. Flora.

Thank you.

Mr. Eisenberg, you have 4 minutes remaining.

Mr. Eisenberg: Thank you, Mr. Chief Justice.

As to the last point concerning finality, Your Honor, and the argument that the... Pennsylvania has created a unique form of collateral review, which is really just direct review, that would be news to the State supreme court which declared this very case to have become final at the conclusion of direct appeal in 1987.

Moreover, the Pennsylvania Supreme Court has on numerous occasions applied the Teague rule in cases arising on collateral review to hold that the claim at issue was a new rule.

Obviously they couldn't have done that if they didn't think that their own collateral review occurred after the point of finality.

And... and furthermore, in... in response to the argument that this Court may not have been fully aware of the supposedly unique nature of Pennsylvania's procedure, Mr. Flora made exactly that argument in the brief in opposition to certiorari that preceded this Court's previous summary disposition in this case.

Concerning the general argument that Lockett is not a new rule because it forbids any barrier to the consideration of mitigation, of course the whole question of what's a barrier that qualifies for Lockett protection or not... and that question has by no means been clear, as I mentioned.

That was the exact argument that was at issue in Walton, and the majority of the Court held that to the extent the preponderance standard is a barrier, it's an acceptable barrier.

But, of course, even in those cases where the Court has held that Lockett applies, to create a rule against a barrier to consideration such as Simmons and such as Caldwell, the Court has, nonetheless, held that that rule is new.

Saffle is certainly additional support for that proposition, although in Saffle the Court declined to create a rule.

In Simmons and Caldwell, the Court did find that the rule was required by Lockett, and yet in later cases found that the rule was new.

Now, one of the reasons I think that the alternative view or the... the failure to see Lockett immediately as a case that precluded unanimity is because we must consider what the nature of consideration of mitigating circumstances is, Your Honor.

It's not merely a fact finding.

It is really a mixed question of law, in fact.

The jury is not required to find fact A, fact B, or fact C. It is required to find a mitigating circumstance.

And given that that is the nature of mitigating circumstances, it was all the more reasonable for the States not to understand Lockett as precluding unanimity for the purposes of making that mixed fact... mixed fact and law determination at the mitigating stage.

But in any case, as I've said, given the dispute even on this Court, it was certainly reasonable for the... for the State courts not to know.

And given the dispute among the other courts about the... the nature of the application of the Mills rule to verdict forms and instructions like this one, it was certainly reasonable for the State courts to--

Justice Breyer: See, this mixed question of fact of law that I think makes it more difficult for you in the sense that if it's a mixed question, it's really asking the jurors to decide should this person die, does he deserve to die.

And then the pre-Mills statute in the State becomes a situation where he will die even though 11 jurors think he shouldn't.

Mr. Eisenberg: --But, Your Honor, those--

Justice Breyer: And that... that--

Mr. Eisenberg: --those difficult mixed questions are exactly the kinds of questions that we always ask juries to decide and in every context outside of this one, to decide unanimously, even for example, not just in the case of the commonwealth meeting its burden of proof, but the defendant meeting his burden of proof where that burden of proof is on him in the situation of a... of an affirmative defense.

Of course, my argument is not that Lockett can't possibly be read to require the result that you suggest.

If there are no further questions, thank you.

Chief Justice Rehnquist: Thank you, Mr. Eisenberg.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at 10 o'clock.

Attribution:

The Oyez Project

Featured:

O'Dell v. Netherland - Oral Argument

Fri, 09 Jan 2009 14:50:09 +0000

Case:

O'Dell v. Netherland

Media File:

96-6867_19970318-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Robert S. Smith

Chief Justice Rehnquist: We'll hear argument next in Number 96-6867, Joseph Roger O'Dell v. J. D. Netherland.

Mr. Smith, you may proceed whenever you will.

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

The principal issue here is whether a reasonable jurist in 1988 would have believed the decision in Simmons v. South Carolina compelled by the Court's prior decisions in Gardner and Skipper.

I think the main things I want to emphasize are first how closely analogous Skipper and Simmons are, how, indeed, hard it would be to avoid going from the holding of Skipper to the holding of Simmons and, on the other hand how distant the issue in Simmons was from the issue in California v. Ramos, which is the case principally relied on by the Commonwealth, and how very difficult it is to get from Ramos to a result opposite to the result that was reached in Simmons.

Unknown Speaker: Mr. Smith, I'd like to ask you a hard question at the outset.

If you are contending that we're dealing with nothing new in the Simmons decision, what do you say about the 4-1-4 split on this Court about whether the Simmons rule was even required by the Constitution?

Mr. Smith: The split on this Court as to whether the Simmons rule was required by the Constitution, I believe the Court was 7 to 2 on that issue, Your Honor, it's my understanding.

It was a... there was a plurality opinion written by Justice Blackmun speaking for four justices.

Unknown Speaker: Yes.

Mr. Smith: With Justice O'Connor speaking for three justices--

Unknown Speaker: Yes.

Mr. Smith: --joining in the same holding.

Unknown Speaker: Well, I don't recall what the split was, but in any event there was a split.

Mr. Smith: There was a dissent, Your Honor.

I think even the dissent, in my view, did not so much reject the narrow rule of Simmons, the rule as narrowly stated by the majority in Simmons, which is quite... there wasn't a majority, but the rule as narrowly stated by the plurality in Simmons was quite specific.

When you have an allegation of future dangerousness, and a defendant seeks to rebut that by showing that he is ineligible... ineligible for parole, he has a due process right to do that.

I do not read the dissent as rejecting that holding so much as the dissent in Simmons says, this case does not present that narrow issue.

Indeed--

Unknown Speaker: Skipper was not really a due process case, was it?

It was an Eighth Amendment case.

Mr. Smith: --I think it was both, Your Honor, but I think it was much more clearly and easily a due process than an Eighth Amendment case.

Unknown Speaker: Well, I thought the text of the opinion pretty well limited itself to Eighth Amendment.

Mr. Smith: The text does limit itself to the Eighth Amendment.

A footnote says--

Unknown Speaker: So you're relying on a footnote to say that it's a due process case?

Mr. Smith: --Yes, because that is what the footnote says, Mr Chief Justice.

The footnote says in so many words--

Unknown Speaker: It's a strange place to find doctrine.

Mr. Smith: --Not always, Your Honor.

I think here it's not strange because I think what happened is the Court wrote a difficult and disputed Eighth Amendment opinion and dropped a footnote to say, and by the way, there's an easy due process route to the same result, with which the three dissenters agreed.

They were not dissenters, I'm sorry.

They concurred, but they concurred only on that ground, only on the due process ground.

The--

Unknown Speaker: You didn't mention the footnote in your... in the habeas petition.

Mr. Smith: --In the petition itself--

Unknown Speaker: There was a 151-page habeas petition which doesn't mention that footnote.

Mr. Smith: --In the... we did not mention it in the habeas petition itself.

We did on direct appeal in 1988, at a time before the petitioner's conviction became final.

We did argue that this rule was compelled by Skipper.

The... I think the facts of Skipper were a defendant who had... was charged with being a future danger, where the prosecution was trying to prove future dangerousness, and the response he wanted to make was, I have behaved well in prison up to now, and therefore I'm not going to be so dangerous as you might otherwise think.

It was held that he had a... unanimously that he had a due proces right to do that.

The issue in Simmons seems to me almost a fortiori... when he's saying, yeah, it's not so much whether my behavior's been good in there, but you want to know whether I'm going to be in prison or not, and it's hard to imagine a much more relevant fact on the issue of future dangerousness than whether the man is going to get out or not.

The--

Unknown Speaker: He can be dangerous in prison, I assume, can't he?

Mr. Smith: --He certainly can, and the prosecution--

Unknown Speaker: Murders in prison occur with some frequency.

Mr. Smith: --The... but he can be dangerous in prison and the prosecution is free to make that argument, but what the prosecution prefers to do, and preferred to do here, is frighten the jury with the thought that he's going to be next door to them tomorrow, that he'll be out on the street, and they... that's a much better way to get a death penalty.

Of course the prosecution can argue life without parole isn't going to do it because he's going to kill his cell mate, and the defendant has to try to meet that argument.

But when the prosecution says, as the prosecutor did here, isn't it interesting that he can't be out on the street for more than a little while without getting into trouble, at that point it seems to me fundamental, obvious that the defendant should be allowed to get up and say, by the way, ladies and gentlemen, I'm not going to be out on that street any more.

This is it for me.

I'm going to be locked up for the rest of my life.

The... so--

Unknown Speaker: Unless the law changes.

He would have to say that.

Mr. Smith: --Yes.

Yes.

Unless the law changed, but you know, there are--

Unknown Speaker: But there would be no way to guarantee the jury that this man would not be back on the street.

Mr. Smith: --That... that's an argument, Justice Scalia, but it does not make the life without parole situation irrelevant.

The life without parole situation is still almost overwhelmingly relevant.

The almost is you could always change the law.

Unknown Speaker: To the force of the injustice that you're describing.

I mean, you know, whether this argument that was excluded would be of such overpowering force.

Mr. Smith: It does go to the force of the argument.

I respectfully submit, Justice Scalia that it's still a very powerful argument despite the fact that the possibility of changing the law does exist.

It's still... in a future dangerousness case, as I believe one of the opinions in Simmons said, it's about the best argument you've got, and often the only argument you've got, that I'm going to be locked away for the rest of my life.

You don't have to worry about me, that may... the jury doesn't have to buy it, but the jury certainly may buy it.

It's a very powerful argument.

Unknown Speaker: But in Ramos, and you're going to have to get to Ramos sooner or later, we in effect said the instruction to the jury about the Governor's power of commutation of a death sentence was not a required instruction.

That's I think implicit in the holding.

I think that's a fair reading of Ramos--

Mr. Smith: I think it--

Unknown Speaker: --if not explicit, and that was what the judges had before them as of the time this conviction became final.

Mr. Smith: --I think it is explicit, Justice Kennedy, but it's not in anything like the context that we're talking about here.

The argument was made, I thought a... I think a rather weak argument, and the Court thought it a rather weak argument in Ramos.

The argument was made that if you're going to tell the jury that the life sentence is subject to commutation... that was the main issue in Ramos... then you must also tell them that the death sentence is subject to commutation.

The Court's response was, and I'm reading from I think 3458 of 103 Supreme Court.

The Court was, we find this argument puzzling.

A jury... I'm skipping a little.

A jury concerned about preventing the defendant's potential return to society will not be any less inclined to vote for the death penalty upon learning even that a death sentence may not assure the prisoner's removal from society.

The argument that the petitioner made in Ramos... I'm sorry, the respondent in Ramos, that the prisoner made in Ramos, and that the Court rejected, was simply an illogical argument and was rejected as illogical.

Beyond that, Justice Kennedy, Ramos didn't present a right-of-rebuttal situation at all, and the Court noted that.

Ramos was not a case where the State was saying this man will be dangerous and the prisoner was saying... standing up and saying let me show the jury something that makes me not so dangerous.

That is not what was going on.

Unknown Speaker: What it did present was, I think, a puzzling tactical decision that counsel has to make, but I think you have that same tactical decision in every jury case.

You have some cases where the prison... where a prison inmate is killed, and you don't want to emphasize to the jury that he's going to be in prison the rest of his life.

Mr. Smith: We have... well, we didn't have a tactical decision in this case, Your Honor.

Because we tried to make the decision.

The decision was taken out of our hands.

We said... my client said I want to tell the jury I'm facing life without parole.

Unknown Speaker: But the point is, is that as of the time this conviction became final you had Ramos, which made it very clear that these choices are ones for States to make.

Mr. Smith: I do not think that Ramos says or even suggests that this particular choice is open to the States, Your Honor.

Ramos does say the... what Ramos holds, of course, is that it's okay for a State to tell the jury that the life sentence is... life without parole can be commuted to a sentence of life with parole.

It says in dictum that the State could make another choice.

It does not say or imply that the State could make that choice in a context where it's forbidding the defendant from rebutting.

Indeed, the choice that's referred to in Ramos I think pretty clearly is a choice to be more favorable to the defendant than California had chosen to be, a choice to remain silent about the possibility of parole, and those are the words... the possibility of parole, not the impossibility or the unlikelihood, the ineligibility of parole.

A State, the Court said in Ramos, can choose to give more protection than the Constitution requires by remaining silent on that subject.

It did not say or imply that the Court may silence the defendant on that subject, may forbid him from bringing this truthful information to the jury's attention even where it is the only information that can rebut the charge of future dangerousness.

The... I think it's... Skipper is indeed extremely close and Ramos extremely distant.

I guess I would add that even if it were not so, even if I didn't have a case as closely on point as Skipper, it would still be true that the rule in Simmons should not be considered a new rule, because I think that a relevant factor is not only the closeness of the prior precedent, but the egregiousness of the practice that is being condemned.

And I think the practice here, which really did exist here... it may not have existed in Simmons, as the dissenting justices thought it did not.

The majority thought it did... but it clearly exists here, is the practice of scaring the jury about a dangerous man being back on the streets of their community without telling them that there happens to be a State statute that forbids under any circumstances putting him back on the streets of that community.

To me it is almost as bad... I will grant the almost, but almost as bad as if a State had passed a law saying in a criminal case we will no longer permit a defendant to present the defense of alibi.

Unknown Speaker: But it doesn't go to whether the defense is dangerous, whether he is a dangerous person, and that's all that Skipper involved.

They allowed him to put in evidence in Skipper that he had not been dangerous when he was incarcerated, that he had indeed engaged in good behavior in prison, so the jury could conclude on the basis of that he is not a dangerous person.

What you're saying now is that it is obvious from that that you can put in evidence, not that he's not a dangerous person, but as... but that although he is a dangerous person, you don't have to worry about it because he's going to be in jail.

Now, that's a step further.

I agree it may be a good argument, and it's an argument you might want to make, but it's a step further than what we had held up to that time, which is, you can bring in evidence to show that in fact he's not a dangerous person.

Mr. Smith: Well, you're making the distinction, Justice Scalia, between he's not dangerous by reason of his character, and he's not dangerous by reason of his circumstances.

I don't think there's much persuasive force to that distinction.

It's true that Skipper is not the absolutely identical case, and you don't have to have an identical case.

Unknown Speaker: It's... I think it's a long way... sentencing determinations are usually made on the basis of what the defendant did and what his character is, and that's typically what a sentencing jury takes into account, and Skipper was well within that.

You wanted to show the man's character is not so bad.

He behaved very well in jail.

Now you come in with a totally new argument.

I don't want to tell the jury that he behaved very well.

He is a bad man.

He's very dangerous.

However, you don't have to worry about him.

He'll be behind bars.

Now, that may well be... we held that that is an argument you should be able to get before the jury, but it's a quite different argument from the argument that this is not a dangerous man.

Mr. Smith: I don't think it's correct, Justice Scalia, to say that before Simmons the sentencing determination was limited to character.

I think that for... going back to the time when in Jurek and other cases these statutes were upheld, the jury was assigned a predictive function as well as a function of judging the defendant's character.

Unknown Speaker: Predictive of his behavior, not of the circumstances of the world.

Not of whether he's going to die at 55 so you don't have to worry about it if you only give him 10 years instead of 20.

Should he be able to get that evidence in on the basis of Skipper?

I don't think so.

Mr. Smith: Or what... if he's terminally ill?

I think... yes, I would be startled if he didn't have a due process right to tell the jury that if I'm terminally--

Unknown Speaker: Mr. Smith, may I ask, because your time is running short, whether you are putting your main emphasis on, not a new rule under Teague, or whether you think you have a good case under the Teague second exception, and if you think that you do, I would like to know what it is.

Mr. Smith: --Okay.

I am certainly putting my main emphasis on its not being a new rule, but I think if it were new, I would have a good case under the Teague second exception.

I have... it's a difficult argument to make, because I have to make what I think is the false assumption that there's something new about the idea of giving this due process right to the prisoner.

That is, I have to assume a world which I don't think ever existed in which it was generally accepted that you could charge a man with being dangerous in the future and forbid him from informing the jury that he's going to be unparolable for the rest of his life.

It's hard to... for me it's hard to imagine that world.

Unknown Speaker: Well, let's make the assumption that this Court rules against you--

Mr. Smith: Yes.

Unknown Speaker: --on your Teague argument.

Mr. Smith: If I make that assumption, then I say that the whole point, I think, of the second Teague exception is to deal with really egregious, shocking practices that create a high risk of a wrong determination, a high risk of finding someone dangerous who is in fact harmless.

That's why there is a second Teague exception.

It doesn't happen every day, and I think the reason it doesn't happen every day is that usually, when you find a practice as egregious as this, it's really clear that it was never approved.

It was never thought of as fair--

Unknown Speaker: Mr. Smith, it goes to both the two theories on which you proceed.

Are you just relying on the fact that the State had to establish future dangerousness, or are you also relying on the specific arguments made by the prosecutor in this record?

Mr. Smith: --I'm relying on both in the sense, Justice Stevens, this is a fortiori from Simmons.

That is, even if Simmons had never been decided, I think I could stand here and say a decision here is compelled by Skipper, and without going to the intervening stages.

Unknown Speaker: You think Skipper rather than Gardner is the more relevant authority?

Mr. Smith: Skipper is the more factually analogous authority.

Gardner is at a higher level of generality, and the cases do say that you take into account the level of generality, so if I had only Gardner, it would not be as clear a case as I think it is.

But even if it were only Gardner, I would make the argument I started to make a minute ago about, suppose an alibi defense were prohibited, and suppose... suppose there's not a case.

Maybe there is, but suppose there's not a case that ever said that a defendant had a constitutional right to present an alibi defense.

We know that he has that right.

We know that whether there's a case on it or not.

Of course he has a constitutional right to present an alibi defense, and it's not a new rule.

Here, it's almost that egregious.

Unknown Speaker: Well, Gardner was a plurality opinion, was it not?

Mr. Smith: There was a plurality opinion, but the due process holding did get five votes, Mr. Chief Justice.

Unknown Speaker: Whose, in addition to the plurality?

Mr. Smith: Justice Marshall and Justice Brenna I believe both wrote separately.

Justice Brennan's decision is styled a concurrence and Justice Marshall's a dissent, but on this issue they say the same thing.

They say we agree with the plurality opinion on the due process issue.

Unknown Speaker: When, in answer to Justice Stevens, you said you base your argument here in part on the prosecutor's representations, I take it your point there is that they were, in fact, misrepresentations.

Perhaps not malicious lies, but they in fact had the effect of misrepresenting the law.

Mr. Smith: I would say the facts, Justice Souter, but yes.

Unknown Speaker: Okay.

So it's a rebuttal of a misrepresentation which is the nub of your claim both under the Teague exception and I suppose under the Teague new rule standard itself.

Mr. Smith: Well, I think... yes.

I don't think I absolutely have to show a misrepresentation here, although it's... they think I can't.

Unknown Speaker: It could be so read.

Mr. Smith: Yes.

There was no... it could.

It could indeed.

It's the same kind of misrepresentation, actually, you had in Skipper.

The argument was made in Skipper by the prosecution, this is a bad person.

He kicked the bars of his cell, and therefore the defendant was entitled to rebut.

It was noted factually true that he kicked the bars of his cell.

That wasn't a misrepresentation, but there was an implied misrepresentation that he was a bad actor in prison, and the defendant was entitled to disprove that.

Here, the statement is made as soon as this guy is out in the community he does something horrible.

I assume for purposes of this argument that that was perfectly true, but there's an implied misrepresentation that you're going to see him out there in the community, and I think he had a due process right to respond to that.

Unknown Speaker: Mr. Smith, for purposes of the Teague exception does it matter whether it's a death case or a habeas case where somebody has a term of years?

Mr. Smith: I think Teague, as I understand Teague, it applies in noncapital cases in generally the same way.

Unknown Speaker: Yes, and there are exceptions.

There are the two exceptions.

Mr. Smith: Yes.

Unknown Speaker: Here we're dealing with the second, and my question to you is, is there any basis for taking a different approach to that second exception when it's a death case rather than a case where the defendant is sentenced to a term of years?

Mr. Smith: Well, I'm not... I may be missing the point of your question, but I think obviously there's a difference in that in the... where there's not a death case the issue is usually guilt or innocence, and the cases describing the second exception tend to talk in terms of the conviction of the innocent.

I think it's clear... I don't think anyone's really arguing the contrary... that the execution of someone who ought not to be executed is analogous to the conviction of the innocent, or a finding of dangerousness which is a basis for execution of a man who does not, in fact, present a danger would be analogous to the conviction of an innocent person, but I'm not sure I've answered your question.

There may be something else.

Unknown Speaker: Mr. Smith, could I ask you to come back to Ramos?

It seems to me you understate the relevance of Ramos to this question.

What Ramos held is that the defendant did not have the right to have the jury instructed that, regardless of whether you impose the death penalty or life imprisonment the penalty can be reduced or commuted.

Now, doesn't that go to the same issue that is involved here, namely whether the sentence you impose will eliminate the dangerousness of this individual?

Mr. Smith: I think the answer is--

Unknown Speaker: The defendant wanted to tell the jury, look, you're not going to eliminate this man's dangerousness by imposing the death penalty, because that can be eliminated by the Governor.

Mr. Smith: --First, the literal answer to your question I suppose is yes, it went to the possibility of eliminating the person from the community.

The distinction is that, as the Court pointed out in Ramos as a basis for its holding on that issue in Ramos, is that the instruction that the defendant was asking for was logically irrelevant to the decision the jury had to make, or if, indeed, it wasn't harmful.

Unknown Speaker: Well, that's not all it said.

The Court said in Ramos that we... it has deferred to the State's choice of substantive factors relevant to the penalty determination.

Mr. Smith: I don't think, Justice... sorry.

Unknown Speaker: And at that point cites a Georgia statute identical to the South Carolina statute later invalidated in Simmons.

Is that no evidence that such a statute would be--

Mr. Smith: Actually, I don't... I don't think it was a South Carolina statute invalidated in Simmons, but I... I think it was a practice that they found the Supreme Court to have sanctioned.

But the... I also don't think that the language you're quoting was in the context... I may be wrong, but I don't think it's in the context of the holding that Ramos was not entitled to the instruction on the Governor's power to commute the death penalty.

I think the context of that was, we're saying its okay for the States to tell the jury about the Governor's power to commute a life without parole sentence, and P.S., it's also okay not to tell them and to give the defendant more protection, but the two... it's not only in the context of giving the defendant more protection.

It's also completely foreign from the right of rebuttal.

Unknown Speaker: --I'll check that... you think it didn't go to the commutation of the death penalty.

Mr. Smith: I think not.

I think not.

Unknown Speaker: I will check it.

But in Ramos and in Simmons so far as the State's position in Simmons the Court was very concerned with the fact that these aren't simple matters of historical fact, because the law can change.

If the defendant is subject to life without possibility of parole, that can change, and the prosecution can argue that in rebuttal, and that's why Simmons was new.

It was instructing juries about laws, and laws can change.

Mr. Smith: I don't think law is any more subject to change than any other future event or condition like, for example, good behavior, which was the issue in Skipper.

Good behavior can change, too, Justice Kennedy.

I think the law in Simmons, it was a law but it was really just a fact that was subject to judicial notice, otherwise it was like any other fact.

Unknown Speaker: Well, it's also subject to judicial notice that the legislature might change the rules on parole.

Mr. Smith: Certainly.

Unknown Speaker: And this was of great concern to the Court in Simmons, because the instructions get very complex.

Mr. Smith: I'm not--

Unknown Speaker: Counsel for the defense says now he's not going to be paroled, then on rebuttal the prosecution says this has been changed many times, and corrections policy is subject to the whim of the legislature.

Mr. Smith: --I must say, I don't detect that great concern in Simmons, Justice Kennedy.

The argument of course can be made that parole is so inherently confusing that it should never go to the jury, but it's tough to make that argument when you have a statute that says life without parole, period, and the only complication is well, maybe they'll change the statute some day.

That's a complexity not beyond a jury's ability to deal with, and I do not think that that was a... was something the Court really had to struggle with in Simmons.

I'll save the rest of my time for rebuttal if I may.

Unknown Speaker: Very well, Mr. Smith.

Ms. Baldwin, we'll hear from you.

Argument of Katherine P. Baldwin

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

I want to begin by setting the record straight on something that O'Dell has argued this morning, and which this case is not about.

O'Dell is apparently relying not only on a lack of a Simmons instruction, but he apparently today now says he's also relying on some argument that the prosecutor made some improper argument, and that that is a separate type of rebuttal issue, and there was never, and there has never been a claim in this case of improper prosecutorial argument.

Unknown Speaker: Well, I'm not sure... I don't... or I think you're referring to counsel's response to my question.

I didn't take... in fact, I thought he was very diplomatic in not suggesting that there was any sort of ethical impropriety, but what was left, I think his point was, was a misleading impression.

It was in effect a misrepresentation of possibilities, and I think I said in my question I'm not suggesting he was malicious, and counsel was very careful to say that he wasn't, either.

Mr. Baldwin: But counsel--

Unknown Speaker: It's the misrepresentation I think that is... was of concern to me and was of concern to him.

Mr. Baldwin: --Correct, and I don't believe there's ever been a claim in this case that the prosecutor misrepresented the law to this jury, and in fact--

Unknown Speaker: But isn't it clear that the impression that a jury would take from the argument was the impression that, under the law as it existed, this individual could be paroled and placed out on the street again so that he could commit the kind of depredations that he prosecutor quite accurately was referring to as his past acts, and that in fact was not so, was it?

Mr. Baldwin: --He was not allowed... correct, he was not allowed a Simmons instruction, but if this prosecutor had in any way directed this jury that O'Dell was going to get out on parole, that would have been an issue that would have been reversed immediately and automatically by the supreme court.

Unknown Speaker: No, but isn't that--

--You say that claim was never made.

Mr. Baldwin: There was never an objection to the prosecutor's argument in any way, shape, or form, and if it had been, and if the record had supported that, the Virginia supreme court would have reversed that conviction.

Unknown Speaker: Okay, but he is arguing that he had a right to rebut something.

Mr. Baldwin: Yes, the Simmons right.

Unknown Speaker: That it would have been relevant to put in this information about the law.

Mr. Baldwin: That's right, but the type--

Unknown Speaker: I'm sorry.

Go ahead.

Mr. Baldwin: --I'm sorry.

Unknown Speaker: What I was going to say... my question was going to be, isn't it the case that what he wants to rebut was an implication about the law which in fact is not correct, i.e., the implication that under the law he could be paroled for this offense?

That's what he... that's the implication.

That's what he wants to rebut, and that implication is wrong, isn't it?

Mr. Baldwin: That is the Simmons claim, and in 1994 that would have been error.

That's correct.

Unknown Speaker: Okay.

Mr. Baldwin: In 1988, it's our position there was no error in this case, because there was no such due process right of rebuttal.

Unknown Speaker: Well, there may not have been... on your view of Simmons there may not have been Simmons error, but there was, in fact, an erroneous implication raised about the state of Virginia law at the time the argument was made--

Mr. Baldwin: Well--

Unknown Speaker: --That is... you concede that, don't you?

Mr. Baldwin: --No... Justice Souter, actually I disagree with that completely.

I don't think there was any misleading or misrepresentation of what Virginia law was in this case.

The only thing--

Unknown Speaker: What he says... I have what he says, what he says in the brief is, he says, you may still sentence him to life in prison.

What does this mean?

No sentence ever meted out to this man has stopped him.

Nothing has stopped him, and nothing ever will except the punishment that I now ask you to impose, so I suppose that the jury might think that if we sentence him to life in prison, he will get out and continue to commit crimes, and it is in that context that the instruction that life means life was asked for.

Well, wasn't--

--Now, if there's agreement about... is that right?

Wasn't this defendant someone who had committed a murder--

Mr. Baldwin: --Yes.

Unknown Speaker: --while he was sentenced to prison--

Mr. Baldwin: Yes, Justice O'Connor--

Unknown Speaker: --that might refer to that?

Mr. Baldwin: --Yes, Justice O'Connor.

I think that--

Unknown Speaker: And then held in prison, and while he was a prisoner he had committed a murder.

Mr. Baldwin: --I think that is--

Unknown Speaker: And then he got out, and within a very short time murdered somebody else, and the prosecutor brought this out to the jury.

Mr. Baldwin: --Yes.

Unknown Speaker: What prosecutor wouldn't have?

Mr. Baldwin: Absolutely.

Unknown Speaker: I'm not saying that was all improper.

What I'm interested in is that this is a case in which they asked for an instruction in a context where because of what the prosecutor said, and because of the law, the jury might think that he will in fact be released for... from prison if the sentence is life.

I would have thought the jury would have thought that he'd kill somebody in prison.

Well, I don't--

--That seems to me--

Mr. Baldwin: The only point that I wanted to make on this particular... it seems to be a secondary argument that has been made, is that it doesn't in any way fit this case.

O'Dell was the one who mentioned the word parole before this jury to begin with.

The issue never came up until in his cross-examination of Donna Doyle in the sentencing proceeding he cross-examined her about the Florida... the failure of the Florida parole system, so there's none of this Skipper-type of rebuttal.

In other words, in Skipper, the prosecutor was arguing, this individual is going to be dangerous in jail.

In fact, he's going to rape other prisoners.

That was the argument the prosecutor made in Skipper, and the defendant was not allowed to rebut that with evidence that he was not going to be... that he would be of good behavior in jail.

That is not... there is no such rebuttal issue in this case.

Unknown Speaker: --But Ms. Baldwin, in--

Mr. Baldwin: The only issue was a Simmons issue.

Unknown Speaker: --Justice Stevens.

Could I just ask you to comment, because I accepted this, and I guess I should not have.

They say in the brief that in cross-examination of O'Dell the prosecutor used the words parole and release 17 times.

Mr. Baldwin: Yes.

Yes, Justice Stevens, and that was on cross... that was on cross-examination, after O'Dell extensively, in his own direct examination, had presented to the jury his entire criminal history, when he was out on parole--

Unknown Speaker: Did he represent himself?

Mr. Baldwin: --He did represent himself, but stand-by counsel was the one who conducted his direct examination.

Unknown Speaker: But then there's also a reference in their brief... and again, I haven't checked the record myself... to an argument by the prosecutor, isn't it interesting, he's only able to be outside of the prison system for a matter of months, and then things happen and so forth.

Mr. Baldwin: Yes.

Unknown Speaker: I thought it was fair to infer... tell me if I'm wrong on this... from the proceeding as a whole that the prosecutor argued in substance implicitly that he is especially dangerous because he might be out of prison.

Mr. Baldwin: I don't believe that that's a--

Unknown Speaker: You don't--

Mr. Baldwin: --I don't believe that that's a fair inference from the prosecutor's argument.

The prosecutor was arguing his history, his past criminal history, which included the fact that he committed crimes when he was on parole, which had been presented to begin with by O'Dell so that was... that's separate from the O... from the Simmons--

Unknown Speaker: --Do you think it's fair to say that the prosecutor did not create the impression that the only way to keep him off the street was by the death penalty?

Mr. Baldwin: --Oh, absolutely, in this case in particular, because O'Dell had committed murder in prison, and the jury was well--

Unknown Speaker: Yes, that's what the jury thought.

Mr. Baldwin: --And the jury... yes.

Unknown Speaker: I mean, I hadn't thought of it that way.

Mr. Baldwin: The jury was well aware of that, so we have that argument under our harmless error argument.

In fact, to go to the point that this would have... parole information to this jury wouldn't have made any difference anyway.

Unknown Speaker: But in all events that's a harmless error argument.

Mr. Baldwin: That's under harmless error.

Unknown Speaker: Under a Simmons regime they would have been mandatorily entitled to this instruction--

Mr. Baldwin: That's correct.

Unknown Speaker: --and the question is to Simmons--

Mr. Baldwin: Yes.

Unknown Speaker: --If that's the case, if the jury understood its equally dangerous in prison or out, I kind of wonder why the prosecutor objected to the instruction.

Mr. Baldwin: Well, he objected to it because under Virginia law it was absolutely not allowed that juries receive information about parole whether it benefited the prosecution or the defendant, and that was a clear... that was clear law in Virginia.

Unknown Speaker: So all of this testimony should have been excluded, too, where they're referring to parole--

Mr. Baldwin: He actually to his benefit was allowed over the prosecutor's objection to testify to the jury, I will never get out of prison, and the judge actually allowed that testimony, even though the prosecutor objected.

Unknown Speaker: --You see, in Simmons itself the argument of future dangerousness was... the prosecutor only implicitly argued that this man would be out of jail because they said it's an act of self-defense, and from that the court was willing to infer that that was the thrust of the argument.

But you don't think that kind of inference is permissible from this prosecutor's argument.

Mr. Baldwin: I do not believe it is.

I believe he was doing nothing but arguing history.

Unknown Speaker: If it were, would you agree, then, that clearly Simmons would not have been a new rule?

If the prosecutor had in effect misrepresented to the jury that this man will get out of jail unless you sentence him to death, that... and the court then refused to give the instruction, I think you would agree that that would have been impermissible.

Mr. Baldwin: Well, no.

That would have been a prosecutor misleading the jury on a matter of State law, affirmatively misleading--

Unknown Speaker: As a matter of fact.

Mr. Baldwin: --and he would have been entitled to correct that, and that would have been reversed.

That's why no Virginia prosecutor would have ever made such an argument, because they knew that their cases would have been reversed if they had told juries improper information, anything to do with this man's future parole.

Unknown Speaker: And in fact, pre-Simmons, wasn't one of the rationales for that that it's a distraction to the jury to begin to speculate about what might or might not happen on parole, particularly because the law changes constantly--

Mr. Baldwin: That's exactly right.

Unknown Speaker: --and they wanted the jury to focus precisely on what the sentence... sentencing options before them were.

Mr. Baldwin: That's correct, Justice Kennedy, and I think very important here and significant is, actually is a 1952 case from Virginia, Jones v. Commonwealth, and this is a case which the Ramos supreme court, the California supreme court had relied on.

And in Jones v. Commonwealth the rationale for the States, and which they believed was the majority rule... was the majority of States believe this, and that was that even if the defendant was ineligible for parole, because that's what happened in Jones v. Commonwealth and he wanted an instruction, the Virginia supreme court said, well now, if we have to instruct him on that, to have a completely accurate instruction we would also have to tell them that really doesn't guarantee he won't be released, because the Governor could commute it.

In other words, the Briggs instruction.

And Virginia supreme court said, we're not going down that road.

We are not going to allow that, because that would be so prejudicial.

And in 1988, the most significant factor that shows that the Virginia supreme court's decision was a reasonable interpretation of existing law is the fact that no other case anywhere had held that Virginia's practice was unconstitutional.

And I believe, Justice Ginsburg, as you pointed out, that the Simmons case itself was not unanimous, and I think that is compelling, if not dispositive evidence of the fact that it was a new rule because it obviously was susceptible to debate among reasonable jurists.

But in 1988, under Ramos, it was very clear from Ramos that the decision of whether States should even... should, could, or should not instruct juries about any matters that come after the verdict about commutation, pardon, and parole--

Unknown Speaker: At it's simplest--

Mr. Baldwin: --which is clearly within the discretion of the States.

Unknown Speaker: --At its simplest level, I was taking their argument, or a possible argument to be the following.

At its simplest level you have a rule growing out of preceding cases that where the jury is under an important potential, false apprehension about the difference between life and death, that under those circumstances the defendant has a right to clarify matters.

And on that very simple, basic way of looking at it, you would see Gardner, Skipper, and Simmons, each is involving a fairly simple misapprehension that was important and later clarified, while Ramos, you would see as involving a possible misapprehension, but one that was very unlikely to affect the jury.

Not impossible, but unlikely.

Now, under... that's the theory, or a theory I think that would say, Simmons is simply an application of a preceding existing general principle, and Ramos is the same thing, though the facts of it lead to the opposite conclusion, so I'd appreciate comments on that.

Mr. Baldwin: I would disagree with that for two reasons.

First of all, I don't think that that's what Simmons said.

I don't believe that Simmons is a rule of defining for juries, or giving them definite instructions about a sentencing option.

Simmons is a case about rebuttal of future dangerousness, a due process right of rebuttal of future dangerousness, and nothing else.

It doesn't have anything to do with an instruction being inaccurate.

It's not... that is not the rule of Simmons.

And secondly, in 1988, I think the equally important case to Ramos that was out there was Caldwell, and I think Caldwell clearly told States that if you want to correct jurors' possible misapprehensions about appellate procedures, or we can infer from that anything that comes after the jury verdict, then you may do that, State, if you want to, but... and the controlling concurring opinion in Caldwell said specifically that's a matter of... that's a policy choice to be made for a State.

So I'm a court in 1988.

I think a reasonable interpretation of the law governing this issue that O'Dell is bringing before me is not only Ramos, but it's also Caldwell, that says these matters are policy choice.

And in fact I think that it was the prudent course in 1988 for a court to decide not to instruct their juries about... or take on that task of trying to disabuse them of misperceptions that they may have about appellate commutation, pardon, and parole procedures, because it's in my view in 1988, as a reasonable jurist, that's too speculative.

It's getting too far away from the matter at hand, and that is, what is the appropriate sentence for this individual, and I think there was complete support for that.

The Virginia supreme court relied on Ramos, the Fourth Circuit relied on Ramos, the Fifth Circuit relied on Ramos, and this Court's decision in Simmons was not even unanimous, so I don't see how there can be a legitimate argument made that this was not a new rule.

I wanted to address briefly the question about this being a watershed, fulfilling the second exception to Teague or not, and I think that this Court's cases on the second exception have made absolutely clear that the rule has to do something more than just improve accuracy.

It has to do something more than that.

It has to literally alter our understanding of the bedrock procedural elements covering criminal cases.

It has to be something that... the terminology that's been used is groundbreaking, and in specific--

Unknown Speaker: Those are not synonymous with new rule, are they?

Mr. Baldwin: --They are not synonymous--

Unknown Speaker: Or are they synonymous with new rule?

Mr. Baldwin: --Well, no.

I think that you can have a new rule... I mean... well, I don't know.

That's a difficult question, because I think that if you are faithful to this standard--

Unknown Speaker: Well--

Mr. Baldwin: --it's going to be very difficult to come up with a rule that will ever meet the second Teague exception.

And there's a reason for that, and that's because the entire purpose of the new rule doctrine is to validate and uphold judgments and a finality of judgments that were reasonable when they were made, and so it should not be an exception, and this Court in Gecky v. Branch specifically said, if... just because a practice is claimed to have been shocking, which I submit it definitely is not, but that's O'Dell's argument, that does not mean that it qualifies as a Gideon-type new... exception to the new rule doctrine.

Unknown Speaker: --What do we do about a situation in which the rule is new in the sense that there's no other decision on the books, but in fact the decision is in response to a problem which no one would ever have conceived would have arrived?

In other words, in effect it's such an egregious case that it was never... there was never any need to litigate it before, so in once sense it's a new rule because there wasn't any prior decision, and in another sense it's an old rule because no one in his right mind would ever have thought that it would be necessary to litigate that point.

Would that kind of a decision satisfy the second Teague exception?

Mr. Baldwin: I don't think so, unless it met this standard of this primacy and centrality.

I don't think it can be something that is a particular practice in one case.

Unknown Speaker: Oh, I quite agree, but assuming it reaches the point of fundamental importance that we're talking about, would it satisfy the second Teague exception to be this unusual kind of new rule, which is new only in the sense that it's so fundamental that no one ever had to litigate it before?

Mr. Baldwin: Well, I don't think that alone would satisfy the second exception.

It would have to be... whatever it is, this Court would have to be willing to say that this is like Gideon.

This is that ground--

Unknown Speaker: Oh, that's right.

That's why I say, we'll assume that it is of fundamental importance.

Start with that.

Mr. Baldwin: --It has to be more than that.

Unknown Speaker: Right, and there are two ways to satisfy the something more.

One way is to say, this represents a real about-face in our jurisprudence.

No one ever thought we would do this, but it now seems necessary.

A second way would be to say, there's nothing new about this.

People have followed this kind of law forever.

No one would ever reasonably have disputed it.

What's new is that in this odd case it had to be litigated and go on the books.

Now, assuming that we're dealing with a matter of fundamental importance, would this second kind of case, the egregious case that never had to be litigated before but has now been litigated and represents what most people would have supposed the law always had been, would that kind of a case satisfy the second Teague exception?

Mr. Baldwin: Justice Souter, I don't think I'm going to agree that... I cannot possibly conceive of a rule, frankly, that would meet the second exception, so I would say even under those circumstances not.

But you know--

Unknown Speaker: Would you say, then, that it was no rule, no new rule in the first place, that even though there was no prior case law on it, it simply represented what had been the accepted law, so that the Teague issue never arises?

Mr. Baldwin: --Oh, right.

If that's--

Unknown Speaker: You would say it fell into that category.

Mr. Baldwin: --If that's the case then it's not a new rule and we don't even get to that.

Unknown Speaker: Okay, so new does not... your argument about what is new and how Teague should be understood is not new in the sense that looks exclusively to prior cases, but new in fact, new in substance.

Mr. Baldwin: Yes, and--

Unknown Speaker: That's what a new rule is.

Mr. Baldwin: --You don't need to reach that in this case anyway.

Unknown Speaker: Okay.

Mr. Baldwin: Because all Simmons is... all Simmons was, was essentially an exception that was carved out of the Ramos general rule of deference to States to decide whether to instruct juries about parole or not.

This is really nothing more than an additional... an incremental change, but... an important change, but nevertheless an incremental exception that has been carved out of that heretofore general deference that States knew that they had in these--

Unknown Speaker: That's... I accept your explanation--

Mr. Baldwin: --That's why I don't think it satisfies the second exception.

Unknown Speaker: --Yes.

I share your puzzlement about the second exception, which seems to say we're not going to allow new rules to overturn settled cases unless it's a really new rule, then we will allow it.

It seems a racher strange exception to the rule.

May I ask a factual question, Ms. Baldwin?

You mentioned that the... apparently the jury was apprised of the fact that this man had committed a murder while he was in prison before.

I don't find reference to that in the prosecutor's closing argument, and I notice in your brief your citation for that is to the court of appeals' opinion, and I just wondered, did this come out at the trial itself?

Mr. Baldwin: Oh, yes.

Yes, Your Honor.

The... his... during the prosecution's case in the sentencing hearing the only thing the prosecutor presented--

Unknown Speaker: This was at the penalty hearing?

Mr. Baldwin: --At the penalty hearing.

Unknown Speaker: Yes.

Mr. Baldwin: The only thing that the prosecutor presented in his case in chief was O'Dell's prior conviction orders, which showed what he'd been convicted of, and one of the was a second degree murder, and then he also... they also presented Donna Doyle, who had been--

Unknown Speaker: Right.

Mr. Baldwin: --attacked by O'Dell 10 years before.

And then O'Dell in his case, when he came in, he went into great detail explaining to the jury about this murder that had occurred in prison, because it was the killing of another inmate, and he had an explanation that he gave to the jury.

Unknown Speaker: But am I correct in reading the prosecutor's argument, the prosecutor did not refer to that incident at all in his closing.

Mr. Baldwin: He referred to the murder, on page 61 of the appendix.

He did not refer to... he did not describe it as a murder that occurred in prison.

He says, there is a graduation of seriousness of the offenses from use of a car, to a robbery, to a murder, to an abduction, and another robbery, and now to another murder, so he listed it.

Unknown Speaker: But that's what he then followed with talking about, isn't it interesting that he's only able to be outside of--

Mr. Baldwin: Yes.

Unknown Speaker: --the prison system for a matter of months and a year-and-a-half before something has happened again.

Mr. Baldwin: And I think that was a fair argument considering O'Dell's obvious strategy to present this to the jury.

Unknown Speaker: But you don't think that argument implied to the jury that the death penalty is necessary in order to avoid a repetition of these crimes.

Mr. Baldwin: I do not believe that that is what this was.

Unknown Speaker: Okay.

Mr. Baldwin: I do not believe it at all.

As this Court has stated many times, the purpose of Teague is to promote finality for State court judgments and to uphold those which were valid when made.

The Virginia supreme court's decision in O'Dell was made in good faith reliance on precedent that was existing at the time, and there was no decision anywhere that dictated a different result in 1988.

Virginia should be permitted to carry out the sentence in this case--

Unknown Speaker: Ms. Baldwin, if there is any content at all to that second exception, why shouldn't it be for a case where literally it's a life or death choice?

Mr. Baldwin: --I think specifically for the reasons underlying the purpose of the new rule doctrine to begin with, and those are irrespective of sentence.

The... we always have to look back and say what the new rule doctrine... it was meant to promote finality of judgments, and to uphold... to uphold judgments which were valid when made so that courts can know that if they reasonably and in good faith apply constitutional precedent that exists at the time they're making their decision they can be assured that those judgments will remain valid, and I think that that is irrespective of the sentence in the case, and I don't think there's... there definitely should not be an exception, because it would... I think it would destroy the new rule doctrine.

Unknown Speaker: Of course, the theory of the exception is that the error was so serious the judgment was not valid when it was made.

That's the whole theory, that if there's a sufficiently serious constitutional error, the whole thing is void.

That was the old-fashioned notion in habeas corpus years ago, and that's the underlying basis.

Mr. Baldwin: For the second exception?

I'm not sure I understand.

Unknown Speaker: Maybe I'm mixing up the two exceptions, but when the error is sufficiently serious that... the whole thing is void.

Mr. Baldwin: Well, I don't--

Unknown Speaker: I'm mixing up the exceptions.

Mr. Baldwin: --I don't believe that that's what this Court has said defines the second exception.

Unknown Speaker: What I actually have trouble in, but I don't know that you can help, is everything's new in a sense, and everything relates to everything--

Mr. Baldwin: Yes.

Unknown Speaker: --previously in a sense, so how is the line drawn?

What they're saying here is, it's so obvious that juries think that life doesn't mean life.

The average person in the street thinks that, life doesn't mean life, that it doesn't take much before they think in the jury box, life doesn't mean life, and therefore tell them, life means life, otherwise they'll sentence the person to death under that misapprehension.

Mr. Baldwin: Well--

Unknown Speaker: Now, that's what I think he's saying is so serious, because there's such a basic principle in the law, that certainly you're not going to sentence people to death when the jury's under a serious misapprehension that somebody is trying to cure.

And all the details of all these cases, which you're absolutely right, they're all over the place in terms of complexity, that's really beside the point when you see that very basic thing that they're trying to illustrate.

Mr. Baldwin: --But I think that that's what Simmons said in 1994.

That's what this Court has said in 1994, and that's a perfectly reasonable position.

To use Simmons as the prism through which we look back at other cases is what the new rule doctrine says we can't do.

You've got to go back in time and say, is that what courts thought in 1988.

And I submit a perfectly reasonable, I think rationale for the rule in 1988 was that courts for one thing did not consider rebuttal, I think, in the way that Simmons described rebuttal.

I mean, they... I think as Justice Scalia pointed out, it was reasonable for a court to believe that you were not rebutting future dangerousness by showing that you were going to be parole-ineligible, because by doing that you were showing that you had a horrendous record, so terrible that the State was not going to let you out on parole.

A reasonable court I think would have not thought that was rebuttal.

I mean, and in addition, all of the arguments that this... if we go down that road it's going to be so speculative it's going to end up prejudicing the defendant, because if you want to give a complete picture you're going to have to come in and show that the Governor could let him out, he could escape from prison, any number of things that would deflect the jury, I believe.

Unless the Court has any further questions, I'll conclude.

Unknown Speaker: Thank you, Ms. Baldwin.

Mr. Smith, you have 5 minutes remaining.

Rebuttal of Robert S. Smith

Mr. Smith: Mr. Chief Justice, I just want to address briefly the idea that the death sentence here was the result of the fear that he would be dangerous in prison, which has been an argument made both in the harmless error context and also in the context of suggesting that it was reasonable to... a reasonable jurist in 1983 might have taken that approach.

I think the... that what happened here is very closely analogous to what happened in Skipper.

I'm not saying that improper arguments were made.

Very fair arguments were made, but the arguments had nothing to do, or at least did not advertise themselves to have anything to do with the man's dangerousness in prison.

The prosecutor had what you might think is this absolutely wonderful fact that a prison murder had occurred, and did not even mention in his closing argument that that murder was in prison.

Indeed, he put it in the middle of a... what he called an ascending hierarchy, and chose to stress the more serious things that had happened afterwards.

He talks about a night stalker.

He talks about the man at large on dark and rainy nights, and then he uses the language that I think Justice Souter read.

Isn't it interesting that he is only able to be outside of the prison system for a matter of months to a year-and-a-half before something has happened again.

But what is interesting about it?

What's interesting about it, of course, is that it generates in the jury the thought that this might recur.

It's not an improper argument.

It's a perfectly fair argument as long as the defendant is allowed to rebut it, but it cries aloud for rebuttal.

Unknown Speaker: It might recur.

I mean, all the defendant can say is, well, as the current law is, he wouldn't get out.

Should the State be able to come in and say, well, the current law may be changed?

In fact, it was changed only 2 years ago.

Or introduce statistics about how State laws are changed.

Mr. Smith: Within--

Unknown Speaker: I mean, I understand that, you know, that's not how we ultimately concluded, but I don't know that you couldn't have looked at it that way at that time and just said, we don't want to get into all these things.

Mr. Smith: --I guess I just... I respectfully submit, Justice Scalia, that what is obviously happening is that you have someone whom the prosecution is portraying successfully as a terrifying individual, that for him to be able to say, I'm facing life without parole is such an obvious thing.

It is so obviously unfair to prevent him from doing that.

Unknown Speaker: Now, did the defendant so testify in front of the jury and tell the jury that he wouldn't be eligible for release?

Mr. Smith: No, Your Honor.

Unknown Speaker: That didn't occur.

That was a misstatement by counsel?

Mr. Smith: I don't think that's what Ms. Baldwin said.

He never said that he would be ineligible for parole.

He said, I'm 45 years old.

I've got to do, what he called a flat 16 years because I've got a parole violation, and therefore he drew the inference something like, I ain't never gonna get out.

That to me is not nearly comparable, does not render harmless at all the Simmons error to say that, assuming the jury understood and believed what he was saying, which is a big assumption, that's a long way from saying I'm facing life without parole.

He tried to say it.

He proffered that testimony and it was objected to.

He asked for an instruction, and by the way an instruction has nothing... even though it's an instruction as a matter of fact, an instruction is simply a way that you judicially notice facts brought to the attention of the jury.

He wanted to put this fact, the fact that he was facing life without parole, before the jury.

He wanted to put it in in rebuttal of an argument that was made and made very effectively that he was a dangerous person who could not be in the community for more than a few months without causing trouble.

He was not permitted to do that.

That was an obvious violation of due process.

It would have been a clear violation of due process to a reasonable jurist in 1988.

If there are no other questions, I'll conclude.

Chief Justice Rehnquist: Thank you, Mr. Smith.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Powell v. Nevada - Oral Argument

Fri, 09 Jan 2009 14:49:52 +0000

Case:

Powell v. Nevada

Media File:

92-8841_19940222-argument.mp3

Related Transcript:

1993_92_8841_argument.xml

Transcript:

Argument of Michael Pescetta

Chief Justice Rehnquist: We'll hear argument now in No. 92-8841, Kitrich Powell v. Nevada.

Mr. Pescetta.

Mr. Pescetta: Thank you, Your Honor.

Unknown Speaker: Is that an accurate pronunciation of the name?

Mr. Pescetta: Yes, very accurate, Your Honor, thank you.

Mr. Chief Justice, may it please the Court:

The issue upon which this Court granted certiorari in this case is a very narrow one, and I submit it becomes even narrower in light of the questions that are not contested by respondent or any party in this case.

And I'd like to begin, if I may, by emphasizing what is not an issue, as we understand it.

First, no one before the Court, as I understand it, is asking this Court to reconsider Griffith v. Kentucky, and therefore I would submit that it is conceded before this Court that any Federal constitutional decision which is currently in effect must be applied to any decision on the merits of Mr. Powell's case, since his case is not yet final on direct appeal.

I submit it is further not contested before this Court that there was a presumptive McLaughlin violation in this case, because the 48... the petitioner did not receive a judicial determination of probable cause within the 48-hour time limit in which that is presumptively reasonable under McLaughlin.

And so third I would submit it is not contested that under McLaughlin if it is applied pursuant to Griffith v. Kentucky, the Nevada Supreme Court erred in failing to give Mr. Powell the benefit of that decision.

Unknown Speaker: Mr. Pescetta, do I understand correctly that if the Nevada Supreme Court had not on its own brought up McLaughlin, it would not be in this case.

You would have forfeited it because the only thing that was raised by Powell was arraignment and not probable cause?

Mr. Pescetta: I submit that we possibly could have raised it in the context of an ineffective assistance claim, imposed conviction, though that's not entirely clear.

Unknown Speaker: But it wasn't in this case until the Nevada Supreme Court put it there.

Mr. Pescetta: Exactly, Your Honor, I agree.

We acknowledge it was not raised.

The Nevada Supreme Court, which does so periodically, reached out sua sponte and drew this issue out of the case, and it decided it correctly with respect to the substance but incorrectly with respect to its retroactive effect.

Unknown Speaker: Wouldn't it be possible for the Nevada Supreme Court to say on remand, sorry, we certainly made a mistake; had we realized that McLaughlin had to be retroactive, we never would have brought it up, and so now we're deleting it?

Mr. Pescetta: That would be a terribly result-oriented result in the case, Your Honor, but I submit that until the Nevada Supreme Court decides to do that, that question is premature at this point.

We might conceivably raise a law of the case argument in the Nevada Supreme Court since there is a very strong law of the case doctrine in Nevada.

If the Nevada Supreme Court found some way to wriggle off the McLaughlin hook, I think that's a situation we would... we should address if it, in fact, does so.

But they certainly have the power, and that has not been contested by any party to this case, to reach out and decide this Federal constitutional question.

And having done so, under Cohen v. Cowles Media and all of this Court's precedents having reached the issue on the merits, the jurisdiction is properly in this Court.

I submit it's for another day if the Nevada Supreme Court... as are many of these issues in this case, are for consideration another day if the Nevada Supreme Court acts on remand in a manner that denies petitioner relief.

Unknown Speaker: Well, Mr. Pescetta, unless McLaughlin carries with it an exclusionary rule, what difference is it going to make in the judgment below, a conviction?

Mr. Pescetta: Your Honor, it's our position that the existence or nonexistence of a Federal exclusionary remedy for a McLaughlin violation is unnecessary to the disposition of this case because Nevada has its own State law remedy, essentially a State law McNabb-Mallory rule, which on remand, once it is... once it is required to properly apply McLaughlin to this case, will kick in.

And that's why we've cited a number of--

Unknown Speaker: And you say that under Nevada State law alone the statement would have to be excluded from evidence?

Mr. Pescetta: --We submit that it would have to be excluded under Federal and State law, because we submit on the merits that there should be a Federal exclusionary remedy.

We submit that that issue also is not necessary to the disposition of the case because of the existence of a State law remedy for that violation.

That's why we have cited Welsh v. Wisconsin and other cases in our reply brief in which very similar situations have arisen in which a Federal constitutional violation implicates a State law remedy in which this Court has not proceeded to the Federal exclusionary remedy that would be required, if any, but remands for consideration under the State law remedy.

Unknown Speaker: Mr. Pescetta, I'm sure that is one of our options, and I guess in my mind whether it's an option we should take or not depends on the probability that Nevada will decide the exclusionary issue in a way which is, number one, dispositive of the case and, B, strictly on State law grounds.

If there were a reasonable likelihood of decision on Federal grounds, then it seems to me it might be prudent for us to go further here.

Can you... can you tell me categorically that in fact Nevada's State law rule, as distinct from Nevada's readiness to follow any Federal exclusionary rule, would be, so far as you understand it, dispositive in this case?

Mr. Pescetta: I believe so, Your Honor, and I believe that the terms of the Nevada Supreme Court's opinion--

Unknown Speaker: But you've just told me in answer to the first question that the Nevada Supreme Court might, you said, wriggle out of it.

Or to say we started out with a question about arraignment under Nevada law, and then we picked up McLaughlin on our own and made a mistake in failing to understand that it is retroactive, and then we returned and, in fact, our decision was about the arraignment Nevada State law ground.

Couldn't this case go back and the Nevada Supreme Court could say thank you for the instruction about McLaughlin, we now understand that it's retroactive, it was never raised by Powell, our decision on arraignment stands just the way we wrote it?

Just take out those paragraphs about McLaughlin and we've got a decision based solely on State law.

Mr. Pescetta: --But, Your Honor, I don't think this Court should pretermit that analysis by the Nevada Supreme Court.

I would submit that once this Court is properly invested with jurisdiction over the Federal question, which it is, this Court's responsibility is to decide the Federal question.

Unknown Speaker: Justice Souter asked you what could the Nevada Supreme Court do on remand and would you represent that, indeed, they would exclude this evidence.

You have already, I think, quite candidly said the Nevada Supreme Court could nonetheless decide this case on the State ground that they started and ended with, that is the arraignment point.

Mr. Pescetta: Your Honor, what I was suggesting in answer to Justice O'Connor's question was that since there is a State law remedy available for the Federal law violation, that this Court need not proceed to delineate the scope of the Federal exclusionary remedy.

I submit that... what I believed Justice Souter's question was was that if this is remanded and if the Nevada Supreme Court decides the McLaughlin issue on the merits, as I believe it must, the availability of the State law remedy will result in reversal.

That's our position.

Now if their... if the Nevada Supreme... I would agree that the Nevada Supreme Court could do any number of things.

It could reverse on remand on an entirely different ground and never reach this issue.

But the question before this Court is whether having reached this issue, they decided it correctly.

Unknown Speaker: Well, the question, as you said in the beginning, Mr. Pescetta, is narrow.

And as you continue to discuss it, it's narrow indeed.

One perhaps we would not ordinarily grant... if it's as narrow as you say... an hour's argument on it.

It's simply whether the Supreme Court of Nevada was wrong in deciding that McLaughlin would not be given retroactive effect.

And you say we can't possibly go any further than that.

Mr. Pescetta: I'm not saying that you can't, Your Honor.

I'm saying that under this Court's consistent practice you shouldn't, because it's unnecessary to the disposition of the case.

I'd just like to remind the Court that in our petition for certiorari all we asked for was for this judgment to be vacated and the case remanded for proper consideration in light of Griffith.

So although you have given us this hour, Your Honor, that is actually more than we asked for.

Unknown Speaker: Well, maybe we think we need the full hour.

[Laughter]

Let me... may I just go back to the Nevada law question?

Does Nevada have an announced rule that when relief can be granted as requested by a prisoner, Nevada will always take up the State law issue first?

Mr. Pescetta: I don't believe there is such a rule.

Unknown Speaker: In other words what I'm getting at is what is the probability that if we rule as narrowly as you submit we should do, that in fact we will simply... that we will have done anything more than perhaps engage in a summary reversal which will turn out to be of no significance?

Mr. Pescetta: I disagree, Your Honor.

I believe the terms of the Nevada Supreme Court opinion which accept the prejudicial effect of the statement that was elicited from the defendant as a result of this delay in the probable cause determination will govern their disposition of this issue.

I submit that if this Court reverses and remands for further proceedings in the Nevada Supreme Court, that the Nevada Supreme Court will properly apply its State law remedy which it has traditionally adhered to, and it will reverse this case.

And I don't... you know, although it is difficult for me to stand up for the Nevada Supreme Court, until they do something that is unfair to us in that regard, I submit--

Unknown Speaker: But would it be unfair to say that this is a defense that you forfeited and therefore we're going to make it clear that all we were trying to do was to tell the troops in Nevada from now on you've got to adhere to the 45... 48-hour standard?

We said that en passant in a case that was about arraignment.

Mr. Pescetta: --I disagree Your Honor, first because under this Court's consistent jurisprudence, most recently Ylst v. Nunnemaker, a Federal law claim can be forfeited all the way through a State system, and if it is revived by being considered on the merits by the highest court of the State, it's revived.

Jurisdiction of this Court attaches and the decision of the Federal question by the State court is subject to review.

On the question of whether this was dealt with en passant, I'd like to get to what I think is the thrust of respondent's contention and really respondent's only contention, which is that the Nevada Supreme Court did not, in fact, decide the Fourth Amendment Question.

Unknown Speaker: Just before you get to that, just one last inquiry on this.

What concerns me, Mr. Pescetta, is that this is a capital case.

Even if we assume that we need not reach the Federal question, even if we intend to remand it to the State to give the State a chance of applying State law if it wishes, why shouldn't we nonetheless resolve the Federal question just to prevent this thing from ping-ponging back and forth forever?

It's obviously in your interest to have this case decided in as piecemeal a fashion as possible.

That is to say if the Federal issue is going to be decided, you would... because it might be decided against you, you'd rather have it decided later.

Let's send it back to Nevada, then they will say, no, we won't apply the State ground.

And then you will say but you must apply the Federal ground, and they will say, no, we don't have to apply the Federal ground, then it'll come up to us and the thing strings out.

Why don't we terminate this litigation as completely as possible now by deciding the Federal issue so just in case the Nevada court doesn't hold the way you think it will on the State ground, we will spare you the trouble of another appeal to this Court?

Mr. Pescetta: Without being overly disingenuous about it, Your Honor, I would say that ever since Ashwander this Court has not decided Federal constitutional questions just in case.

It has consistently adhered to the practice that if there is a State law remedy or if there is a Federal constitutional question which is presented but which is not necessary to the decision, that it will not reach that question.

Now, we are fairly confident, perhaps overly confident, that our analysis of the Federal exclusionary rule is accurate and that there should be a Federal exclusionary remedy consistent with Justice Blackmun's opinion in Brown v. Illinois.

But I think that what I have to focus on before this Court is obtaining relief for my client, and as I see it, remanding this case to the Nevada Supreme Court will result in that relief.

Unknown Speaker: Although it's not in the question presented, do you think that it's also necessary, even under your minimum suggested approach, that we reach the question of whether the Nevada Supreme Court was correct in saying that a right to seasonable arraignment is waived when you waive your Miranda rights?

Mr. Pescetta: I submit that--

Unknown Speaker: Or was that a matter of State law?

Mr. Pescetta: --I submit, Your Honor, that that is correctly not within the question presented.

But I additionally submit that that is also a question of State law which this Court need not reach.

And their decision, the Nevada Supreme Court's decision--

Unknown Speaker: Cannot reach.

If it's a pure question of State law, which Nevada seems to have treated it.

The arraignment question was raised, as I understand it, as a question of State law, it was resolved as a question of State law, then this Court has no business with it.

Mr. Pescetta: --I agree, Your Honor.

As I was--

Unknown Speaker: But do you... is it clear to you that it's a question of State law--

Mr. Pescetta: --I believe with respect--

Unknown Speaker: --As the Nevada court treated it?

Mr. Pescetta: --I submit with respect to the arraignment and first appearance statutory issue, that that is a question of State law.

And if you look at page 8 of the joint appendix, the fact that the Nevada Supreme Court in resolving the question of waiver referred explicitly to the defendant's waiver of, quote, his right to an appearance before a magistrate within 72 hours, which is the State law ground, the State statute which it had just found unconstitutional on McLaughlin grounds, makes it absolutely clear that that waiver point was decided purely as a question of State law and does not impact the disposition of the Fourth Amendment.

Unknown Speaker: And we'll just footnote the fact that I don't understand how a State law waiver controls the existence of a Federal right.

Mr. Pescetta: My point exactly, Your Honor.

If, as the State urges, that there has been a waiver, our response to that is Your Honor's response to that; there has been no waiver of the Federal constitutional right.

And the discussion of the waiver issue in the Nevada Supreme Court's opinion is directed entirely at the State statutory right because having found the McLaughlin violation, the Nevada Supreme Court then tripped in this footnote and said, but we are not going to apply it to petitioner's case.

And I would just like to repeat for emphasis, we cite--

Unknown Speaker: But just to make sure I understand it correctly, everything that they said about waiver because of the Miranda warnings, that all tied into the arraignment State ground and they were not dealing with any Federal right anymore because they thought incorrectly that McLaughlin wasn't retroactive.

Mr. Pescetta: --Absolutely, Your Honor.

That portion of the opinion deals solely with the arraignment and first appearance statute, not with the Fourth Amendment ground.

Because, as I think the Court recognizes, the Nevada Supreme Court, having found the Fourth Amendment violation, then did not apply that rule to petitioner's case despite the fact that it was before it on direct appeal.

Now--

Unknown Speaker: So this is an opinion that starts with State law arraignment, shifts to Federal probable cause, says Federal probable cause is not retroactive, goes back to arraignment and continues down the line with State law?

Mr. Pescetta: --Yes, Your Honor.

I agree that there are shards sticking up in various places on different issues, but what they get to and what I submit renders the respondent's argument completely indefensible is the language that appears on page 6 of the joint appendix when they finally get to the McLaughlin issue and they say, quote, the McLaughlin case renders NRS 171.1783 unconstitutional.

Based on McLaughlin we hold... we hold that a suspect must come before a magistrate within 48 hours, including nonjudicial days, for a probable cause determination.

Now, we've cited a number of cases in our brief on independent and adequate State grounds, and I submit that this language puts the State's position completely out of court.

When a lower court says we hold that a Federal constitutional decision renders our practice unconstitutional, I submit that it really couldn't be clearer.

And it is immediately after that paragraph that the Nevada Supreme Court goes in a footnote to the retroactivity analysis.

Unknown Speaker: Well, I don't read it as saying that it holds our practice unconstitutional.

It says based on McLaughlin we hold that a suspect must come before a magistrate within 48 hours, including for a probable cause determination.

It doesn't say what the consequences of failure to come before the magistrate are.

Mr. Pescetta: I agree.

But the previous portion of its opinion in which it cited the Huebner line of State cases, are the cases that adopt the McNabb... State McNabb-Mallory rule.

So it's our position that having found... having gone through that analysis, having analyzed the question in terms of the inadmissability of a statement obtained in part on the basis of illegal prolongation of detention, that--

Unknown Speaker: Yes, but in the... in their footnote they don't just talk about inadmissability of the statement.

They seem to assume in the footnote that if there was a violation of the 72-hour State law rule or the 48-hour Federal rule, that the prisoner would automatically be entitled to his freedom whether he confessed or not.

That's the way the footnote reads.

They're talking about untold numbers would all be set free.

That can't be the right remedy, is it?

Mr. Pescetta: --I don't think it is as a matter of State law.

I think--

Unknown Speaker: You're not representing that that's the State law remedy that would be applied?

Mr. Pescetta: --No, Your Honor.

Unknown Speaker: Just... what is the case that holds that there's an exclusionary rule that's applied as a matter of State law when there's a violation of Federal law as to the period of detention?

Mr. Pescetta: We cited the Huebner v.... Huebner v. State, Morgan v. Sheriff, Berman v. Sheriff.

All of these cases are actually cited in the Nevada Supreme Court opinion at joint appendix 5.

Unknown Speaker: And what is the proposition for which you cite them?

Mr. Pescetta: That there is a State McNabb-Mallory rule that results in the--

Unknown Speaker: For when there's a violation of the State detention rule.

Mr. Pescetta: --Well, that inadmissability of a statement arises from an illegal prolongation of detention.

Unknown Speaker: But illegal because of the State requirement of prompt arraignment.

Mr. Pescetta: They have not... they have not distinguished between constitutional violation, State law violations in those cases.

Delay is delay, as I see it.

Unknown Speaker: We... of course this Court has followed a McNabb-Mallory type of rule, and yet surely it's an open question here whether an exclusionary rule accompanies the violation of the McLaughlin rule.

Why wouldn't the Nevada court take the same position; yes, in Huebner we have a McNabb-Mallory rule, but that doesn't necessarily answer the question as to the remedy for a violation of the 48-hour arraignment right?

Mr. Pescetta: I submit that the terms of those previous decisions do indicate that a delay, which is concededly... concededly does not invoke a Federal exclusionary rule under McNabb-Mallory because McNabb-Mallory is not a Federal constitutional rule, nonetheless results in inadmissability.

And it's our position that that line of cases does not discriminate amongst State law violations, Federal law violations, and prolongation of detention.

Now, to turn briefly to the question of the Federal exclusionary rule, I submit that this is purely a rule that would follow all of the principles enunciated by numerous decisions in this Court, that the purpose of an exclusionary rule is to deter the wrongful conduct.

Here we have a situation where it is within the power of the police within this 48-hour presumptive period, or at any period without unnecessary delay, to cause the probable cause determination to be made.

They didn't.

Instead they elicited a statement.

Now the question, it seems to me, is--

Unknown Speaker: Now, is it clear that the statement was elicited before the hearing was held, because the statement and the hearing were both November 7?

Mr. Pescetta: --The Nevada Supreme Court implicitly found it did.

The record does not show one way or the other.

Unknown Speaker: And that... explicitly found that the statement was prior to the hearing.

Mr. Pescetta: Implicitly, they made a finding--

Unknown Speaker: Implicitly.

Mr. Pescetta: --Implicitly, yes.

Unknown Speaker: On the basis of what the Wisconsin Supreme Court made that finding?

I'm sorry, the Nevada Supreme Court made the finding?

Mr. Pescetta: The Nevada Supreme Court's opinion says there are... there is prejudice from the admissability--

Unknown Speaker: On the basis of nothing in the record, you tell us.

Mr. Pescetta: --On the basis of the fact that these statements... the statement was elicited the same day as the... as the probable cause determination.

We've conceded that, certainly, before this Court.

There is nothing, however, in the record upon which this Court can say the Nevada Supreme Court was clearly erroneous in that regard.

It simply doesn't show it and that's, I take it, largely because it wasn't litigated below.

Unknown Speaker: Did the Nevada Supreme Court say anything more than that they both happened on the same day?

Mr. Pescetta: No.

Unknown Speaker: Well how can you say they made an implicit finding that one happened before the other?

Mr. Pescetta: Because they refer to the eliciting of the statements as being prejudicial in their discussion of the Huebner rule, which is key to--

Unknown Speaker: Well, but surely that is the most implicit of implicit findings, if that's all there is to it.

[Laughter]

Mr. Pescetta: --A finding is a finding, Your Honor.

I'm afraid--

Unknown Speaker: I agree that a finding is a finding; I just don't agree with you that this is a finding.

Mr. Pescetta: --Well, I submit that this is entitled under Sumner v. Madda and previous cases to the same respect that any State court finding is.

Now, granted because of the posture in which this case comes to this Court, the record is not pellucid on many issues.

That is why we submit that this case has to go back to the Nevada Supreme Court.

In fact, many of the respondent's arguments, including complaining about the inability to show attenuation or necessary delay, are in fact grounds for reversing this judgment and not for affirming it.

And so although technically the State can't urge those grounds because no cross petition was filed, we submit that essentially they have conceded that there have to be future proceedings in this case.

Now, with respect to the deterrent--

Unknown Speaker: Is one of the things that the Nevada Supreme Court could find is that the November 7 statement was essentially duplicative, so whatever error existed was harmless because the same... statements to the same effect had been made on November 3, which was well within the 48 hours?

Mr. Pescetta: --I submit, Your Honor, that's, at most, a mixed question.

The question of harmlessness is not a purely factual issue which the Nevada Supreme Court can determine.

I'd just like to say one more word about the deterrent effect of a Federal--

Unknown Speaker: I'm sorry, I didn't follow the bottom line from that.

If... the Nevada Supreme Court conceivably could say that the November 7 statement is simply a repetition of the statement made on November 3rd and therefore it was... whatever was harmless.

Mr. Pescetta: --It can say it but that, I submit, is not a factual finding to which this Court must defer.

Unknown Speaker: But they haven't--

Mr. Pescetta: Harmlessness is a Federal constitutional issue.

Unknown Speaker: --But suppose they did that, would that be the end of the case?

I mean what Federal question would you have left then?

Mr. Pescetta: Well, first of all, we don't concede that they're identical.

One of the statements is about 7 pages long, the other is 40 pages long, considerably more detailed, so that fruit is significantly more damaging than the first statement.

But I would just like to emphasize that that issue is not a factual finding to which this Court must defer.

That's a question of harmlessness.

Unknown Speaker: Well, but let's assume that the Nevada Supreme Court said, well, we're going to send it back to the trial court for a consideration of harmlessness or a consideration of the somewhat broader issue of attenuation.

The Nevada Supreme Court could perfectly well do that.

Mr. Pescetta: In fact they should do that, Your Honor, I submit.

Unknown Speaker: Yeah.

Mr. Pescetta: And under rule 250... under Nevada Supreme Court Rule 250(IV)(H), we would ask for them to do that unless they simply reverse.

One final point about the Federal exclusionary remedy.

This has exactly the same problems, this kind of situation involving McLaughlin, as every other exclusionary situation has.

What we're trying to deter is the police from profiting from the illegal prolongation of the delay.

This... a Federal exclusionary remedy would be narrowly tailored to that, to the harm that is caused by that illegal prolongation, and therefore based on the argument we've presented in the briefs we would submit that this Court should adopt a Federal exclusionary remedy if it reaches that question which, again, I emphasize it does not need to.

If I may, I'd like to reserve the remainder of my time.

Unknown Speaker: Very well, Mr. Pescetta.

Mr. Seaton.

Argument of Dan M. Seaton

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

Before we go further, I would like to clearly delineate what the Nevada procedure was in November of 1989.

When a prisoner was taken to the... when he was arrested, he would be taken to the booking desk, at which time the various booking procedures would go on.

Either simultaneous with that or immediately thereafter at the jail--

Unknown Speaker: Was this in Clark County?

Mr. Seaton: --This is in Clark County, Nevada, yes, it is.

Immediately after at least the booking procedure, the police officer who was in charge of the arrest, in this case Detective Al Leavitt, would fill out what is known as the affidavit of probable cause, along with other papers.

Copies of those and the original would go to various places.

One of them would go to the Justice of the Peace across the street in the courthouse.

That Justice of the Peace, in those days, within 72 hours, excluding weekends and holidays, would read the declaration and determine whether or not there was probable cause to hold the prisoner for any greater length of time.

Completely separate and apart from the procedure in Nevada, at that time and today, is the procedure of first appearance, and that is governed entirely by NRS, Nevada Revised Statute 171.178.

And that statute really says just about the same thing, that within 72 hours, excluding weekends and holidays, the prisoner must be brought before the Justice of the Peace for a first appearance, at which time that person is then advised of the various rights that attach to his proceedings.

So that the Court understands fully, the procedures then are similar in that the time limitations put forth by the legislature in the first appearance statute were used as guidelines by Nevada officials or police officers in determining how quickly they had to obey the prompt dictate of Gerstein.

And they chose to utilize the 72 hours.

The defendant in this case has never, until coming before this Court, objected to any sort of a probable cause difficulty.

It has always been couched in terms of a delay in first appearance.

And, indeed, the Nevada Supreme Court began its opinion in this particular area, recognizing that that was the specific claim.

Now, since I would prefer to spend most of my time discussing the substantive issues that are before this Court relative to the exclusionary rule, I would like to say a brief word about jurisdiction and then go on to that area.

As I stated, the issue has always been framed in terms of first appearance and not in probable cause.

Probable cause, as it relates to the Nevada Supreme Court's opinion, is relevant only if those two procedures, probable cause and first appearance, are combined.

And they are not in Nevada; never have been and are not today.

Unknown Speaker: In this case... excuse me.

In this case was there a probable cause determination by a magistrate?

Mr. Seaton: There was.

Unknown Speaker: When, on November 7 or before?

Mr. Seaton: It was... on November the 7th.

Unknown Speaker: But that was beyond the time allowed in McLaughlin.

Mr. Seaton: It was beyond the time in McLaughlin.

It was done 18--

Unknown Speaker: So whether or not the probable cause and the arraignment proceeding are combined, there was a violation of McLaughlin, assuming McLaughlin is retroactive, which I think it is.

Mr. Seaton: --Yes, it is retroactive, I have no quarrel with that proposition.

Unknown Speaker: All right.

So we begin with the premise that there's been a McLaughlin violation, and the Nevada Supreme Court is wrong on that point.

Mr. Seaton: There was... using the retroactivity analysis, there was a McLaughlin violation, yes.

Unknown Speaker: And McLaughlin is retroactive, is it not?

Mr. Seaton: It is.

Unknown Speaker: And the Nevada Supreme Court was wrong on that point, was it not?

Mr. Seaton: If... yes, they were wrong on saying that McLaughlin was not retroactive.

But McLaughlin... the discussion in McLaughlin was not dispositive of the issue that was before the Court.

The McLaughlin decision has nothing to do with first appearances.

The McLaughlin discussion by the Nevada Supreme Court had no place in this discussion of why... whether or not there was an inappropriate delay in first appearance.

Unknown Speaker: Is it plausible to read the Nevada Supreme Court's opinion as saying that if there were a McLaughlin violation, this statement would have to be excluded under the State's Huebner rule?

Mr. Seaton: It is not... we are not able to do that, I believe, Your Honor.

Unknown Speaker: Wait, wait.

I didn't hear your answer.

Mr. Seaton: We are not able to make such a conclusion.

The Nevada Supreme Court, just going from the--

Unknown Speaker: Doesn't the Nevada Supreme Court's opinion indicate that they even thought that if there had been... if the McLaughlin decision is retroactive, as everyone agrees it is, they would have to just release this defendant?

I mean that's what the footnote, I think--

Mr. Seaton: --Well, the footnote does seem to indicate that, and that clearly is not the law in the State of Nevada and they have so said.

Unknown Speaker: --Well, what then was the purpose of Nevada's discussing McLaughlin at all?

Mr. Seaton: I wish I knew the answer to that question.

I do not know the answer to the question.

What I do know--

Unknown Speaker: Well, in a death case I think we should know, don't you?

Mr. Seaton: --I agree.

Unknown Speaker: But when this curious opinion came down, you didn't ask to have it clarified, because it goes from first appearance, as you call it, and then it shifts to this McLaughlin probable cause, and then goes back to first appearance?

So it would be, apart from this intrusion of McLaughlin and the slip, an entirely State law decision that would have no place in this Court.

Mr. Seaton: That--

Unknown Speaker: But you didn't... when this curious thing came out about McLaughlin and you didn't know how it got in there... it certainly wasn't asked for by either of the parties... you didn't ask the court to alter or amend its decision?

Mr. Seaton: --We... my knowledge of the appellate procedure that took place was that upon receiving the opinion, a motion for rehearing was asked for.

In fact, if memory serves me correct, both parties asked for that rehearing.

It was declined and the supreme court chose not to have a rehearing, but to rely on their judgment as they wrote it.

And other than that, I can't offer an explanation as to why they did what they did, but I can offer the conclusion that what they did really had no bearing on the only question that was before the court.

Unknown Speaker: Couldn't, then, on remand... if we were to say, Nevada Supreme Court, McLaughlin's retroactive, couldn't they then say, thank you for that information about Federal law.

Now we understand that this case was about arraignment.

It started there, it ended there.

We never would have intruded this suggestion on our own, if we had known that what we were saying was incorrect about the retroactivity.

Mr. Seaton: They could take that position.

I think what I would forward to the Court at this time is that it's unnecessary to do that.

I believe that the judgment below, even though torturously gotten to, was correct.

I believe that the way that the Nevada Supreme Court ultimately disposed of the case is a correct one, and that for this Court to send it back for that kind of correcting would render this Court's judgment not more... much more than an advisory opinion, which I know it prefers not to do.

Unknown Speaker: Well, even if we're with you... even if we're with you so far, was not, in this case, there a combined arraignment and probable cause hearing on November 7?

Mr. Seaton: There was not.

On November 7th the only thing that happened was an ex parte reading by the Justice of the Peace of the declaration of arrest.

Unknown Speaker: Oh, a simply McLaughlin hearing.

Mr. Seaton: It is simply McLaughlin.

The first appearance occurred late on November the 13th, 1989.

Unknown Speaker: All right, all right.

Mr. Seaton: So clearly in this case two separate proceedings were had.

And whether the court, the Nevada Supreme Court--

Unknown Speaker: I have to confess I'm a little puzzled.

You're saying the probable cause determination is not made in the course of the first appearance before the magistrate?

Mr. Seaton: --It is not.

Unknown Speaker: But the Supreme Court of Nevada, on page 6, says:

"Based on McLaughlin, we hold that a suspect must come before a magistrate within 48 hours, including nonjudicial days, for a probable cause determination. "

That reads to me like saying they have to have the probable cause determination in the first appearance.

Mr. Seaton: One reading of the opinion might be very similar to what you're suggesting.

Unknown Speaker: That's exactly what that sentence... you'll agree that sentence says that?

Mr. Seaton: That sentence says that.

Unknown Speaker: Now what says something else in the opinion?

Mr. Seaton: Well, the court might have been, at that particular moment, deciding to--

Unknown Speaker: That's not my question.

Mr. Seaton: --I'm sorry.

Unknown Speaker: What is there in the opinion that says something else?

Mr. Seaton: Something other--

Unknown Speaker: I know... you told us there are two separate proceedings, but does the court say that... elsewhere in its opinion that the probable cause determination is not made in the first appearance here?

Mr. Seaton: --No, not to my recollection, and that is what I think befuddles some of us.

Because they started off talking about first appearance and then all of a sudden, recognizing the McLaughlin decision, started talking about it as though it applied to the statutory first appearance when it... in fact, it did not.

And then they finished up, as Justice Ginsburg pointed out, by holding their decision based on Nevada waiver law of the Miranda right.

Unknown Speaker: I understand that.

I just don't understand what the authority is for the proposition that the probable cause determination is not made in the first appearance hearing, which seems to be something you're arguing?

Mr. Seaton: Yes, I am arguing that.

And the authority--

Unknown Speaker: And what is there in writing that tells us that is so?

Mr. Seaton: --My answer to Justice Kennedy a few moments ago, that the probable cause hearing in this case was held on November the 7th, and on November the 13th the first appearance was held.

That shows, in fact, in this case there were two separate proceedings.

The--

Unknown Speaker: Yes, but that doesn't show that it is correct to have... not to make the probable cause determination in the first appearance hearing.

Mr. Seaton: --No, it could be correct.

Obviously, California does that in some of their counties.

Unknown Speaker: Well, and obviously the Nevada Supreme Court says that's what you're supposed to do in Nevada, according to this opinion.

Mr. Seaton: Well, and if they're saying that, and we don't know that that's what they're saying--

Unknown Speaker: Well, you just agreed with me that that's what that sentence says.

Mr. Seaton: --Well, I don't know if that's what that sentence means.

[Laughter]

Unknown Speaker: Oh, that's what it says, but we have some kind of secret meaning behind what the words are.

Go back... you were telling us what happens in this county in Nevada.

I think you started out that way.

Are these still separate proceedings?

Mr. Seaton: Yes, they are still separate proceedings.

They have never been combined.

In the years since Gerstein, I have not once seen a probable cause determination made at the same time that a first appearance is made.

There's no case holding.

The statute in question, the first appearance statute, alludes absolutely not at all to probable cause.

That is an animal that has come about, I think, by virtue of the Gerstein decision, and our State's efforts by local rule to abide by it.

And in doing that, they chose to follow the 72-hour rule that was announced in the... in the first appearance--

Unknown Speaker: Well, has the Nevada Supreme Court made it clear that the Huebner line of cases would not apply to a violation of the time limits for a probable cause hearing?

Mr. Seaton: --Well, in respect... with respect to my opposing counsel's statement, I would tell the Court that the Nevada Supreme Court in those line... in that line of cases has stated what the rule is in almost all of the United States, and that is that the McNabb-Mallory line of cases do not have to apply to the States.

And our State does not follow that line of cases.

Unknown Speaker: My question was has Nevada said, as a definitive matter, that its State McNabb-Mallory rule does not apply to a probable cause hearing when the probable cause hearing is beyond the legal... legally set time?

Mr. Seaton: It has not.

Unknown Speaker: Thank you.

Mr. Seaton: And I say that, if I might just follow up on it, because in Nevada there are a dearth of cases, if there are any at all, which discuss the problem that faces us here, that discusses any sort of a probable cause difficulty.

All of the cases talk about first appearance.

That factor may have been something that aided the court in making its wrongful assumptions.

It was just so unfamiliar with a local procedure which had not ever before come before it, that it, in reading McLaughlin, just assumed that it applied back to the first appearance statute.

Unknown Speaker: May I ask about your first... your first appearance hearing, is that always an arraignment where the defendant pleads not guilty or guilty?

Mr. Seaton: Unless it is continued for that purpose, it is.

Unknown Speaker: In this case it was an arraignment.

Mr. Seaton: I can't tell you whether or not there was a continuation, but the... but when they finally had the first appearance--

Unknown Speaker: But the November 13th hearing was an arraignment.

Mr. Seaton: --It was an arraignment, to the best of my understanding.

Unknown Speaker: So is it not conceivable that the probable cause determination could take place at the earlier date, with the defendant present or not present, yet still have the arraignment at a later date?

Mr. Seaton: That is the procedure in Nevada.

Unknown Speaker: Yeah.

So that... I mean it could be the first appearance would have been at the time of the probable cause determination, rather than the arraignment is what I'm asking?

Mr. Seaton: Our first appearances cannot take place ex parte.

They may... must take place in front of the Justice of the Peace.

Unknown Speaker: I understand.

But they are not necessarily an arraignment?

Mr. Seaton: I believe eventually, given continuances, they are always the arraignment.

The--

Unknown Speaker: Well, let me ask you this.

Is it possible as a matter of Nevada law that on November 7th the magistrate made a probable cause determination at which the defendant was present.

Or maybe he wasn't, but as a matter of routine he could have been present, even though he was not yet ready for arraignment?

Mr. Seaton: --No.

Unknown Speaker: That could not happen.

Mr. Seaton: It does not happen.

It could happen, yes, if a judge somehow summoned a defendant before him in his chambers where the probable cause hearings are held, that could happen.

I--

Unknown Speaker: It seems to me that what the Nevada Supreme Court has said in its opinion, that's what must happen in the future, that he must... the defendant must be present at the probable cause determination in less than 48 hours, even though he doesn't have to be arraigned at that time.

Mr. Seaton: --That could be a possible reading of the Nevada case.

That has not happened since that time, and I believe in the event that a remand does occur for the Nevada Supreme Court to clarify its opinion, it will go along with its past practices.

Unknown Speaker: There's certainly nothing in our McLaughlin case that suggests a defendant would have to be personally present at the probable cause determination.

Mr. Seaton: Not that I ever read.

Unknown Speaker: Just following... we just followed Gerstein.

Mr. Seaton: That's correct.

With the very short remaining time that I have left, I would simply like to go on past these aspects of the case and suggest to the Court that are... there are two reasons, which have been fairly fully briefed in our briefs, why the exclusionary rule in this particular case, or cases like it, should not occur.

And one of them clearly is that in this particular case the statement, the confession, if you will, of the defendant, was clearly not the fruit of the delay in the finding of probable cause that occurred in this particular case.

And we know that if there is no causal link to the violation, then the exclusionary rule should not work.

And this case seems to be somewhat analogous to the reasoning at least behind the case of New York v. Harris.

And this case, like that one, the probable cause existed at the very beginning.

Some sort of a bad intervening event happened.

In Powell it was a Payton arrest.

In this case it's a delay of a finding of probable cause, which I would want to remind the Court that there always was probable cause.

The affidavit which was eventually viewed and ruled upon never changed.

There was no exploitation of any delay to change the nature and circumstances of that particular affidavit.

And the Court in Harris seemed to indicate that the custody, albeit the... for the Payton violation, that custody was still lawful.

And in this case, I would say that the custody is still lawful even though there is a delay.

There is a Fourth Amendment violation because of the delay, but it doesn't render the custody unlawful.

And the confession or statement, then, is not a product of the delay.

It, like the one in Harris, is the product of the probable cause arrest, an appropriate arrest.

A man should be in prison... or in jail, I'm sorry, for the things that he has done and that the police know about at that time.

They are then entitled to go ask questions of him, which they did.

And we have to remember that... as was brought out in the earlier argument, that those same statements were gotten from him several times.

Six times before, I believe, he told people how these particular injuries occurred.

He was more than willing, in fact even eager to tell that story.

And so there can be no reasonable assumption, I believe, here that the statements in question were in any way the product of some sort of a delay.

Had the delay not happened, we still would have had the statements.

He still would have been willing to tell us the same thing that he told us on other occasions.

The other reason for the nonutilization of the exclusionary rule in this case are the line of cases having to do with good faith, and those cases teach us that when police officers reasonably rely on presumptively valid statutes or search warrants, that to exclude the things that come from those valid pieces of evidence is to... thank you very much.

Unknown Speaker: Thank you, Mr. Seaton.

Mr. Estrada, we'll hear from you.

Argument of Miguel A. Estrada

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

I would like to start by answering the question that was posed at the outset concerning the possibility of State remedies, and by saying that there is no reason to think in this case that there is any State remedy.

In Powell's view, the State court in this case, A, found that the Fourth Amendment was blatantly violated but, B, refused to give a Federal remedy based on what everyone now says is a wrong view of Federal retroactivity rule... rules.

If there were indeed... if there were indeed a separate and independent State remedy, the Supreme Court of Nevada, by hypothesis having found that the Fourth Amendment was violated, surely would have granted it.

And indeed it is a little bit strange that the principle authority cited for the claim that there is an independent State remedy in this court is the opinion of the Supreme Court of Nevada in this case which, if it stands for anything, is that there is no State remedy for--

Unknown Speaker: Well, why would it give a State remedy for a statute which it found was inapplicable because of its misunderstanding of retroactivity?

Mr. Estrada: --It did not... there are two different issues, Justice Souter.

The Supreme Court of Nevada stated in its opinion that there is a remedy, much like the McNabb-Mallory remedy, for the violation of its statute.

It also stated that as a matter of State law, that right is waiveable.

Now, neither of those two statements have anything to do with the error of Federal law that the court made, which is to say that as a matter of Federal law there is no Federal remedy available in this case.

If we concede the premise for this Court's having jurisdiction, which is the claim that the Supreme Court of Nevada necessarily found a Fourth Amendment violation in this case, then it must follow that there can be no independent State remedy for that since if there were, the court surely would have given it.

Unknown Speaker: Mr. Estrada, I don't follow that line of reasoning, because I thought the Nevada Supreme Court was saying there was a violation of a Federal constitutional right, but it's not retroactive, and are we glad it isn't retroactive because if it were we would have to release this man from incarceration totally, not simply exclude the statement.

Mr. Estrada: What they said was it is not retroactive as a matter of Federal law, Justice Ginsburg, which if... which is a statement--

Unknown Speaker: So why should it be retroactive as a matter of State law, but they... wouldn't they think that the State law, at least in that respect, would be the same as the Federal?

Mr. Estrada: --Yes, but they wouldn't have to.

And unless there is something in what the court did to lead to the conclusion that the court felt compelled by its reading of Federal law to say that there is no State remedy, the court, having found that the Constitution was violated, would have given a State remedy if there were one.

Truly--

Unknown Speaker: But, Mr. Estrada, correct me if you have a different interpretation.

I had thought the submission from the petitioner was that if there had been a violation of Federal law, if McLaughlin were retroactive, which it is, that the State would have invoked its own McNabb-type rule to exclude the statement?

Mr. Estrada: --The court did find by hypothesis a violation of the Fourth Amendment.

It refused to give a Federal remedy based on an error of Federal law, but that didn't keep the State from granting a State remedy if there were one.

The problem with the argument is that the remedy that there is is a McNabb-Mallory remedy, which the court stated is tailored to Fifth Amendment interests and which, as a matter of State law, is waiveable.

Now--

Unknown Speaker: Well, I suppose that the concern that I have, at least, is that the State court ought to be the one to make this explicit determination in the first instance.

Mr. Estrada: --Well--

Unknown Speaker: It's not clear to me that that's exactly... that the Nevada court would have denied relief had it assumed a Federal violation under McLaughlin.

Mr. Estrada: --Well, I... we don't read the... what the court said as indicating that the court felt compelled to deny a State remedy based on Federal law.

And unless the court can be read to have said so, the judgment it rendered in this very case is evidence for the view that there is no independent State remedy, and that--

Unknown Speaker: Mr. Estrada, excuse me for interrupting, but I... maybe I'm not following you, but you're saying that the court said there was a violation of the Fourth Amendment.

And you mean the McLaughlin rule.

Mr. Estrada: --Yes.

Unknown Speaker: But they say it is important to note that the 48-hour requirement mandated in McLaughlin does not apply to the case at hand.

That seems to me to say it was not violated because it simply didn't apply, because they mistakenly thought it was not retroactive.

Mr. Estrada: Well, I think what they were saying, and as we read it, Justice Stevens, is to say that--

Unknown Speaker: How can they find a violation of a rule that doesn't even apply to the case at hand?

Mr. Estrada: --Well--

Unknown Speaker: They say that in... I mean, I'm not... you know, I'm not interpolating.

Those are the very words the court used, it does not apply to the case at hand.

Now why do you say that a rule that doesn't apply was found to have been violated?

Mr. Estrada: --Well, I was taking not our statement of what they did, but their statement as to why this Court has jurisdiction, which is that the highest State court chose to notice a plain error and to waive a bar.

If the State court didn't do that, then there is a bar to this Court's jurisdiction.

If we take their--

Unknown Speaker: But that Federal rule that they misapplied is not McLaughlin, it's Griffith.

It's Griffith is the Federal rule that was misapplied, that the case was... that did apply to judgments--

Mr. Estrada: --Yes, of course.

Unknown Speaker: --We have jurisdiction.

There's no question we have jurisdiction.

Mr. Estrada: And we do agree that the Griffith rule was misapplied.

Unknown Speaker: And that... you do agree that was a Federal rule.

Mr. Estrada: Yes.

And we do--

Unknown Speaker: And based on that violation of a Federal rule, this Court had jurisdiction.

Mr. Estrada: --I think that there's certainly much to be said for that view.

Unknown Speaker: And nothing to be said against that, is there?

Mr. Estrada: Well, the State has made an argument to--

Unknown Speaker: I understand they've made arguments.

Mr. Estrada: --The opposite effect.

Unknown Speaker: But you don't subscribe to those arguments, do you?

Mr. Estrada: We have not subscribed one way or the other to any view, and we're happy to go forward on the view that the Court does have jurisdiction.

All I am saying is that from what the court did in this case, there is nothing that would lead one to think that there is an independent State remedy, because the court stated the State rule as being one designed to protect the Fifth Amendment right and one, in that light, which is waiveable under State law, and it found it waived.

Unknown Speaker: Well, there's just so much help one can get from this opinion, Mr. Estrada, and it's not very much.

Mr. Estrada: I would not disagree with you on that, Mr. Chief Justice.

On the other hand, the Court... this Court has always held that it does not sit to overturn statements in opinions, and if there is nothing wrong with the judgment as a matter of Federal law, and we say there is not despite the error in the statement, then the judgment should not be overturned.

In our view, there is nothing wrong with the judgment as a matter of Federal law because, as a matter of Federal law, the statement is not a fruit of the timing violation on which the petitioner relies, and the good faith exception would apply to bar suppression even if the statement is deemed a fruit in the circumstances of this case.

Unknown Speaker: But all that assumes that Hawaii... that Nevada will not apply its Huebner rule to a McLaughlin violation, and we don't know that for sure.

And I can understand the interest of the Solicitor's office in arguing the exclusionary rule; it's a very important issue.

But I cannot understand the interest of the Solicitor's office in urging that we proceed to that in the light of this... in the light of this opaque opinion.

Mr. Estrada: Well, that's... I mean obviously reasonable minds can disagree about how what the court did may be read.

All we're saying is that our reading is that it is fair to infer that there is no State remedy, and in the light of that, the only issue for the Court is whether there is a Federal remedy.

And for... based on cases like Harris and Motalvo, we think that it is reasonably clear that as a matter of Federal law there is no Federal remedy if there's--

Unknown Speaker: But wouldn't it be... wouldn't it have been appropriate for the... to... instead of asking the Court to decide what is a fairly weighty question, what are the consequences of a McLaughlin violation, to say this is a very poor case in which to make any such decision; there are two paragraphs thrown into an opinion that's all about State law.

Why are you urging the Court to make a significant decision in a case where this issue just crept into the case, was in and out before anybody could notice it?

Mr. Estrada: --Because we also... we only learned of the existence of the case after the case had been granted, which we take to be an indication that the Court is interested in dealing with the Federal issues that there may be in the case.

And in light of that assumption, we thought that we would come into the case and give the Court our views as to the Federal issues, which are as we have stated in our brief.

And I thank the Court.

Unknown Speaker: Thank you, Mr. Estrada.

Mr. Pescetta, you have 2 minutes remaining.

Rebuttal of Michael Pescetta

Mr. Pescetta: I will try to talk fast, Your Honor.

The answer to Justice Ginsburg's question about what happens if the Nevada Supreme Court says we are not going to decide this issue, is that would then not be an adequate State ground for the decision.

We submit that if the Nevada Supreme Court adopts a procedural bar rule that says we will forgive procedural bars so long as we don't have to reverse, but we will invoke procedural bars so long as we can affirm, that's not an independent and adequate State ground.

And that I submit is the short answer to your concern about what happens if the case goes back.

I submit that the McLaughlin violation, contrary to what counsel said, means--

Unknown Speaker: In other words, are you arguing that the Nevada Supreme Court is estopped?

Powell didn't raise this issue.

The court did on it's own.

And you're saying that now having raised it, the court is estopped from withdrawing it?

Mr. Pescetta: --Then we have to litigate the procedural bar issue in the Nevada Supreme Court, and ultimately in this Court, but that's not ripe for decision today.

Unknown Speaker: Why would that be a Federal question?

Mr. Pescetta: Because the adequacy of a State procedural bar is always a question of Federal law, to bar review of a Federal constitutional issue.

Unknown Speaker: Which the court itself injected.

Mr. Pescetta: Yes.

Yes, Your Honor.

It reviewed the issue; that's the end of the question.

Now, as to good faith, the State is relying on the statute which it says has nothing to do with the probable cause determination, the first appearance statute, to say they could, in good faith, rely on that in allowing the 72 hour time limit.

I submit that's entirely anomalous to say on the one hand it has nothing to do with the probable cause determination, but on the other hand that's the good faith reliance on the statute that invokes Illinois v. Krull.

With respect to Harris and the illegality of custody, illegal custody under McLaughlin is illegal custody.

He shouldn't be in custody because it's illegal.

The difference between Harris is the manner of arresting him was the constitutional violation; the custody was legal.

Here, once the McLaughlin time limit was passed, the custody became illegal.

He should not have been in custody, under the Fourth Amendment, at that point.

I thank the Court.

Chief Justice Rehnquist: Thank you, Mr. Pescetta.

The case is submitted.

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

Attribution:

The OYEZ Project

Featured:

Yates v. Aiken - Oral Argument

Wed, 13 Apr 2011 20:11:07 +0000

Case:

Yates v. Aiken

Media File:

86-6060_19871202-argument.mp3

Related Transcript:

86-6060_19871202-argument.xml

Transcript:

ORAL ARGUMENT OF DAVID I. BRUCK ON BEHALF OF PETITIONER

Chief Justice William H. Rehnquist: Mr. Bruck, you may proceed whenever you're ready.

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

The question in this case is whether a State in a refusal to give retroactive effect to this Court's decision in Francis v. Franklin to cases which were final on direct appeal when Francis was decided.

As in any retroactivity case, I think it may be helpful to review a little of the procedural history that got us to this question.

Petitioner Dale Yates was tried and convicted of murder in 1981, two years after this Court's decision in Sandstrom v. Montana.

His appeal was decided in late 1982.

No objection was raised at trial or on appeal to the unconstitutional jury instruction which is at the core of this case.

However, that creates no procedural bar under South Carolina law under a very very well established line of South Carolina cases.

Indeed, in his direct appeal opinion, the Court said that it reviewed the entire record of Mr. Yates' trial in favorem vitae as is South Carolina Supreme Court's invariable practice in capital cases alone.

It has a rather strict procedural default rule in non-capital cases, but it has no such rule in capital cases.

And the Court said that it found no prejudicial error.

A year, a little less than a year later, the South Carolina Supreme Court, for the first time, sustained a Sandstrom challenge to a series of burden shifting jury instructions involving the essential element of malice, which is an essential element of murder under South Carolina law.

The first of those decisions in 1983 was a case called State v. Elmore.

A few months after Elmore, Yates filed a habeas corpus petition in the original jurisdiction of the State Supreme Court alleging that the jury instructions in his case which I think we all agree were materially identical to those involved in Elmore, created... and I quote...

"an unconstitutional burden shifting presumption of malice. "

He alleged that it created a mandatory rebuttable presumption of malice, and he cited Sandstrom v. Montana as authority for that proposition.

He also said that in light of Elmore and another case, State v. Woods that had also applied Sandstrom to strike down the same instructions, the South Carolina Supreme Court should apply its own decisions and uphold his constitutional claim.

While this petition... the State responded, by the way, to this original petition by saying that they agreed that his petition should be consolidated with another appeal then before the State Supreme Court to resolve the apparent issues.

The court... however, the respondent, the State of South Carolina, argued on the merits of the constitutional claim that in fact it was not a bad jury instruction, and presented exclusively Federal authority saying that the instruction could be distinguished from that involved in Sandstrom.

While his petition was pending, this Court decided Francis v. Franklin.

Yates submitted the Francis decision to the State Supreme Court and said that Francis was absolutely on all fours, and required reversal.

The court... about three weeks after it got the Francis decision, the State Court said that it had in a per curiam decision without opinion said that it had considered the petition for habeas corpus and concluded that it should be denied.

Unidentified Justice: It did not cite Francis?

Mr. Bruck: It cited nothing.

What I recited is exactly the words that the State Court used.

Yates then petitioned this Court for certiorari and this Court granted certiorari and remanded to the South Carolina Supreme Court for reconsideration in light of Francis v. Franklin.

On remand, the judgement occurred which is the subject of this matter here today.

The State Supreme Court's opinion on remand begins by acknowledging in the first breath that the constitutional error involved here is a violation of Francis v. Franklin.

The way the Court put it was that the instructions here violated the principals of State v. Elmore, and involved the same infirmities as those addressed by the United States Supreme Court in Francis.

But immediately after saying that, the State Supreme Court then said, so the question before us is the retroactivity of State v. Elmore, completely ignoring the fact that it had just finished conceding, or acknowledging that this was a Federal Constitutional error that had been committed in the case.

The Court then said that retroactivity... taking a couple of lines out of this Court's retroactivity doctrine which the State Court apparently misinterpreted to mean that the retroactivity of constitutional decisions is entirely a matter of State law, and then proceeded to say that they found the view expressed by Justice Harlan in Desist and Mackey to be persuasive, and therefore the Court would, as a matter of its own State law, not apply the doctrine condemning mandatory rebuttable presumptions, an essential element of the offense.

Unidentified Justice: Well, Mr. Bruck, if the South Carolina Supreme Court does not discriminate against Federal claims, does this Court have authority to tell that Court what retroactivity law to apply in a State habeas proceeding to you suppose?

Mr. Bruck: The difficulty is that the claim is a Federal one.

I think the answer is, yes.

The retroactivity of Federal Constitutional decisions is a matter of Federal constitutional law.

And the State Court, in effect, was discriminating against that whole body of this Court's constitutional doctrine, when it said that we are simply not going to apply it.

The crucial thing to stress here is that this is not... no matter how much the State attempts now to recast this matter... is not a case involving a State's construction of its own post-conviction remedy.

That is not what happened here.

It would not have made a nickel's worth of difference whether Dale Yates had raised his claim on direct appeal, had raised it at trial, had raised it all along.

If the State Court had denied relief prior to its own final rather belated acknowledgment of the principles of Sandstrom in the Elmore decision, they would have come up with exactly the same decision if Yates had then later renewed his claim after he noticed that the State Supreme Court had begun to apply Sandstrom.

And I think the proof of that is in another line of South Carolina retroactivity decisions led by Truesdale v. Aiken, a case involving what the South Carolina Supreme Court believed to be a question involving the retroactivity of this Court's decision in Skipper v. South Carolina.

And in Truesdale, the petitioner in Truesdale had raised his Skipper claim well before Skipper on direct appeal.

He met... it met with no success.

He then raised it again on post-conviction relief and the State Court came up with a decision very very similar... a little short of it, but essentially the same decision as is involved in this case, saying that they again have decided to apply Skipper only on direct appeal and that they're adopting in effect the Justice Harlan view in collateral review.

This Court summarily reversed, I think correctly, I believe, recognizing that the retroactivity, as I say, of a Federal constitutional decision is not a matter that States have the authority to pick and choose.

So we don't say that there's any discrimination between one sort of Federal claim and another, but simply that South Carolina has misinterpreted the Federal nature of the constitutional law.

Unidentified Justice: What if this Court were to adopt the Harlan view?

Would you lose?

Mr. Bruck: Not in this case because there is no retroactivity issue in this case.

I... I think this Court would probably be more--

Unidentified Justice: Because there was not a new decision, is that it?

Mr. Bruck: --Because Francis simply applied by its very terms simply applied doctrine of--

Unidentified Justice: But if we disagree with you on that, do you lose?

Mr. Bruck: --If you disagree with me on that and decide to jettison the last 24 years of retroactivity and to jettison the Stovall, no, I don't believe so.

Unidentified Justice: As we have already jettisoned a considerable part of it on the other side on direct appeal.

Mr. Bruck: Yes.

No, I don't believe so, because I think that as Francis, itself described the constitutional principle involved here as an axiomatic fundamental bedrock principle of due process that no one may be imprisoned, or in this instance, executed without having the State born its burden of proving his guilt beyond a reasonable doubt.

So we are dealing I think with something--

Unidentified Justice: Francis certainly changed an awful lot of things that had been regularly going on.

Mr. Bruck: --Well, that's true, I realize that would be debatable.

Unidentified Justice: An awful lot of people didn't understand what bedrock due process was before Francis.

Mr. Bruck: Well, apparently so.

There have been a number of States that have been giving these instructions.

Be that as it may, that was the Court's holding, and I certainly think that we are dealing in Francis v. Franklin with a constitutional issue that is very close to the core of our basic of due process.

Unidentified Justice: Well, what if the Supreme Court of South Carolina had said in connection with its own State habeas that we're not going to entertain any challenges that go to jury instructions.

That's just the kind of thing that we're not going to consider on collateral attack and we don't care whether they're State challenges or Federal challenges.

And the Supreme Court of South Carolina had decided this case on that basis.

Do you think that you would have a Federal question to preserve here?

Mr. Bruck: No.

Of course, that's not what they did.

Unidentified Justice: I realize that.

Mr. Bruck: I don't quarrel at all with the proposition that a State can limit its Federal remedy.

Now, of course that would not create under the circumstances of this case that would not create any sort of a Wainwright v. Sikes bar down the line.

Unidentified Justice: No, but it would mean in their own State collateral review, they would not have to decide any claim.

Federal or State, based on a jury instruction.

Mr. Bruck: I have not thought about that, but I'm inclined to think that they could have done it.

Unidentified Justice: I realize that is not what they did.

So a State can circumscribe in some respects the kind of claims it's going to consider on collateral review.

Of course some answer to that question may be indicated by the fact that we chiefly relied on Francis.

Mr. Bruck: Yes Sir, certainly, in this... in this... in this +/-

Unidentified Justice: Isn't that what we did in this case?

Mr. Bruck: Yes, Sir.

Absolutely.

The South Carolina Supreme Court was instructed to reconsider this case in light of Francis v. Franklin.

And of course, there is absolutely no state procedural doctrine in South Carolina whatsoever that shuts the door on one procedural category of claims and not on others.

I realize the State has tried to identify some defect in the initial habeas proceeding papers.

I don't know that that really needs to be responded to.

Perhaps, if need be if that claim is renewed today, I may touch on it in reply.

But suffice it to say that I think the basic error that the State Court committed when they got this case on remand was their failure to recognize that there is a threshold test in any retroactivity case that must be addressed.

And that is whether or not you are dealing with a new decision.

And I don't think there are very many cases in which this Court more clearly indicated... and I realize there was disagreement within the Court... but the majority of the opinion of the Court clearly held that Francis v. Franklin simply applied one of the alternate holdings of Sandstrom v. Montana.

Some of the proof of how not new a decision in Francis was is that South Carolina had in other contexts, and with other instructions, already applied this very portion of Sandstrom.

And indeed, State against Elmore was an application of the principles of Francis before Francis was decided.

Everything they needed to have applied Francis they could have gotten, and did get out of Sandstrom v. Montana.

So where a retroactivity issue came from in this case is something which I'm still struggling from the State's opinion to understand.

The... of course, when we apply the Stovall factors, assuming that the Court is not inclined to use this case to reconsider the viability of the Stovall retroactivity doctrine, it's rather clear that this Francis v. Franklin or Sandstrom v. Montana, whatever principles one wishes to label them as, follow very clearly on the retroactive application side of the Stovall factors.

First and foremost, we consider the purpose of the rule.

And the purpose of this rule is to insure that the State bears its burden of proof and that only the guilty are convicted and the innocent are acquitted.

That is at the very heart of the truth seeking function in criminal trials, as this Court very clearly stressed in Francis.

At that point, the second two factors under this Court's cases really fall out of the picture.

But even if we look at them, justifiable reliance on the old rule, after Sandstrom v. Montana, and really after Mullaney v. Wilbur in 1975, there could have been no justifiable reliance on any notion that States were entitled to shift the burden of persuasion on an essential element of an offense.

Unidentified Justice: How about the Patterson case?

I mean, certainly that indicated that Mullaney should not be construed as broadly as it might have been.

In fact, it cut back rather sharply on Mullaney.

So it wasn't just one great big progress onward and upward as you would suggest.

Mr. Bruck: Well, yes, that's true.

But Patterson nevertheless it used an analysis of the elements test.

It focused on what the elements of the crime were.

And here, certainly malice is an element of murder and no one could have read Patterson to think that it is justifiable to shift the burden of persuasion on the element of malice under South Carolina law.

In any event, Sandstrom v. Montana which followed Patterson could not really have been much clearer on this point, although the instructions are probably most easily read in Sandstrom as a conclusive presumption.

That issue was in doubt, and the Court said whether it be conclusive of whether it be mandatorily rebuttable, it is no less unconstitutional.

That was two years before this person's trial, three years before his direct appeal.

And there could not be any conceivable justifiable reliance on any prior rule, State or Federal.

Finally, we have impact on the administration of justice.

The impact in this case is truly negligible.

South Carolina naturally is concerned about applying rules to cases which are already final, but I would stress that South Carolina has an extremely rigid system of procedural default in all but capital cases.

So that anyone who didn't raise this and properly litigate it both at trial and on direct appeal, there is no interest of justice exception, there is no fundamental error exception under 9 Capital South Carolina criminal law so there are very very few cases in the pipeline.

And in any event, there is no right for South Carolina now to be able to claim that that's a valid factor to consider.

Unidentified Justice: You would say that Francis... any Francis-type case would be foreshadowed by Sandstrom?

Mr. Bruck: Yes, sir.

I would think, any.

I... the Court simply denied in Francis there was any new law being made.

It was simply an instruction which was clearly of the mandatory rebuttable type.

Unidentified Justice: Well, the Court said in Francis that such inferences, permissive inferences do not necessarily implicate the concerns of Sandstrom.

Mr. Bruck: Yes.

The problem is here that South Carolina itself, as our State Supreme Court has recognized over and over again, is that we're not dealing with a permissive inference but rather with a mandatory rebuttable presumption.

Malice is presumed from x, y, and z facts.

Unidentified Justice: Well, why has the case been discussed in the South Carolina Courts as if it's the retroactivity of Francis v. Franklin rather than the retroactivity of Sandstrom?

Mr. Bruck: Well, there'd be no issue of retroactivity of Sandstrom because Sandstrom occurred two years before this man's trial.

The bubbling up of this retroactivity issue is frankly a mystery to me.

The petitioner did ask the State Supreme Court to apply the state decisions applying Sandstrom retroactively.

We thought it simply the most tactful way of putting the matter, but we also made clear the Federal constitutional character of the claim in the habeas papers.

But I confess to complete bewilderment as to how this case became a retroactivity case when there is new law to be applied by the State Supreme Court.

Clearly, what has somehow happened in this case is that we have a State Supreme Court which simply has denied that the retroactivity or that the obligation... whether you call it retroactivity or not... the obligation of a State court to apply Federal law in its courts, whether it be civil, criminal, post-conviction, or direct appeal, is a matter of Federal, not State law.

And that's where we got off onto this... South Carolina Supreme Court on remand... onto this tangent.

The State argues beyond the retroactivity issue, the State puts a great deal of effort in their brief to argue that in fact this isn't such a bad instruction and that it is not an unconstitutional instruction.

This is a claim which it has pressed over and over again without success.

In the South Carolina Supreme Court it has recently been rejected by the Fourth Circuit in Hyman v. Aiken, a Federal habeas case from which the State has not sought review in this Court.

It is really a matter which is all but settled, and for the reasons set forth in our brief, I would suggest that the South Carolina Supreme Court and the Fourth Circuit have correctly identified the constitutional infirmity of both of the malice instructions at issue here.

And don't really feel that the State's position has any merit on that score.

They also argue that this Court ought to make the first determination of whether the error was harmless.

I've argued at some length in the Reply Brief that in view of both of the two theories of prosecution that were used in this case and applying South Carolina law and the particular form of the law of parties in accomplice liability under South Carolina law, that the States harmless error argument has no merit.

I would simply stress here that this again was pressed vigorously before the South Carolina Supreme Court.

The South Carolina Supreme Court did not expressly reject the harmless error argument, but I should think that if under South Carolina law and under the facts of this case, the South Carolina Court had seen merit in the harmless error argument, it is most unlikely that they would have gone off into the area of retroactivity.

Unidentified Justice: I think that's probably true.

But why should we get into doing harmless error analysis here?

Mr. Bruck: I'm sorry, why should you?

Unidentified Justice: Yes, why should we, you know, if we agree with you on the rest, why shouldn't we just remand and give them a chance to determine whether they think it was harmless or not?

Mr. Bruck: That would suit me fine.

I really think that is certainly what this Court's precedents envision I think in almost every situation, even the very case in which you held that there could be harmless error under Francis v. Franklin, you then remanded to the Federal Court in habeas to allow that determination to be made.

And that certainly would seem to be the most reasonable way to proceed in this case.

I think South Carolina when the case is remanded will grant this person a new trial, but that is between us and them.

If there are no further questions, I would like to save some time in rebuttal.

Thank you.

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

We'll hear now from you, Mr. Zelenka.

ORAL ARGUMENT OF DONALD JOHN ZELENKA ON BEHALF OF RESPONDENT

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

We submit that the question before this Court is whether a State Court has the ability in collateral review proceedings to establish its own procedures and develop how it is going to review new case law precedent arising out of its own Court and other courts.

We submit that in this situation, the retroactive application is not compelled, either constitutionally or otherwise, in the Yates decision.

We contend that it was simply a determination by the South Carolina Supreme Court of the limits of the type of review it would give in State habeas proceedings.

In that situation, a somewhat unique situation that was presented before this Court, it said it would only look at certain situations and those situations were if the trial court that entered the conviction lacked subject matter jurisdiction over that situation, and secondly if the criminal conduct involved in the case was not subject to criminal sanction.

Unidentified Justice: Mr. Zelenka, explain to me why the Court chose not to consider Francis v. Franklin on the remand?

Mr. Zelenka: It would appear that they did decide that essentially on the facts by that one sentence that they had when they held that this charge was similar to the charge addressed in State v. Elmore and similar to the charges addressed in Francis v. Franklin.

However, I would submit that--

Unidentified Justice: What does that mean?

I don't understand.

What do you think they decided with regard to Francis v. Franklin?

Mr. Zelenka: --What I think they decided was the limitations of the type of relief and the type of review they would give in State habeas corpus proceedings in its original jurisdiction.

Unidentified Justice: Well, is it a decision just not to consider Federal claims?

Mr. Zelenka: No, it's a decision only to consider those claims that hold that the trial court's jurisdiction was null and void or that the particular conduct involved was not subject to criminal sanctions in the case.

If any decision falls outside of those decisions, then it will not consider those retroactively in its original jurisdiction in these matters.

There is a State post-conviction relief proceeding that Mr. Yates proceeded to apply on that does provide certain relief in constitutional cases.

And it would provide relief on constitutional issues, if those issues were not raised or could not have been raised in the direct appeal.

Mr. Bruck has argued somewhat convincingly, I would submit, that in favorem vitae review applies in this case and in any capital case in South Carolina.

But a close reading of those cases would reveal that they're talking about the direct appeal situation where they have a much broader review.

There is no case in South Carolina that sets out the proposition that in favorem vitae review does exist in State collateral proceedings either under the Uniform Post-Conviction Relief Act, or under the habeas procedures in its original writ.

We cited the case of Tyler v. State which says that it is not a substitute for an appeal.

So when the Court had this matter before it, they had a situation that was not raised on direct appeal, was not objected to on direct appeal in a case that occurred two years after the Sandstrom v. Montana decision came down, which the petitioner argues set the bedrock precedent for this case.

Subsequent to the appeal in this decision, the South Carolina Supreme Court did hold that under a very similar charge to the charge in this case, that they held as a matter of State law that it violated the Constitution.

Unidentified Justice: If you're right, Mr. Zelenka, why does the Supreme Court's opinion in this case discuss retroactivity so elaborately?

Mr. Zelenka: It discussed retroactivity to the extent that they considered the retroactivity of State v. Elmore and whether State v. Elmore was essentially a decision that applied new law or applied something that could have been presented previously to it under more timely procedures.

Unidentified Justice: I mean didn't they also consider whether Francis v. Franklin should be applied retroactively?

Mr. Zelenka: I think implicitly in that decision has to come from the Supreme Court's decision that they held that it did not apply retroactively to this decision.

Unidentified Justice: That's a holding really on Federal constitutional law, isn't it?

Mr. Zelenka: It's a holding on Federal constitutional law to the extent that they looked at whether those procedures, or that issue, that claim could be presented to it at that time.

And they held it could not under their own State procedural law because it did not hold that particular criminal conduct to have divested the trial court of jurisdiction or held a criminal conduct to be not--

Unidentified Justice: So you're saying when they're talking about retroactivity, they're saying that only if a new decision divests the Court of jurisdiction or makes the conduct not criminal will the Supreme Court of South Carolina consider it?

Mr. Zelenka: --Only in those two situations, according to this decision, they would consider it.

But if it's in any other situation, the retroactivity issue will not be considered unless it was properly presented in a State post-conviction relief format or had a reason as to why it was not previously presented under State law.

Now, the South Carolina Supreme Court allows in State post-conviction relief that issues that were presented or asserted in direct appeal cannot be reasserted in State post-conviction relief or State habeas corpus proceedings.

Now, that is the same situation that would apply here.

This case and these issues as presented by Mr. Bruck could have been presented on direct appeal.

Furthermore, he had the opportunity under our State Post-Conviction Relief Act to reflect as to why, if they weren't presented on direct appeal, why they weren't presented.

For example, a Sixth Amendment denial.

It could have been presented that way, if he chose to present it that way.

Unidentified Justice: Let me be direct about it.

Do you feel that the Supreme Court of your State complied with the mandate of this Court?

Mr. Zelenka: I think it complied with a mandate of this Court--

Unidentified Justice: Implicitly?

Mr. Zelenka: --to the extent that they looked at the Francis v. Franklin issue under the procedures that it had established upon review of situations that were presented to it, and to whether those particular issues could be presented in a habeas corpus format.

Unidentified Justice: Well, this is the first time it decided it, though?

Mr. Zelenka: This is actually one of the first--

Unidentified Justice: It decided to adopt the Harlan view both ways.

Mr. Zelenka: --This is at that time one of the first two cases that they adopted the Harlan view, they adopted it also +/-

Unidentified Justice: For their own procedures?

Mr. Zelenka: For their own procedures.

And they clearly state throughout this decision that they're looking at the retroactivity of State Court decisions.

Unidentified Justice: But of course, did they think that this case, that Francis made new law, or what was their case, the Elmore case?

Mr. Zelenka: The Elmore case occurred before Francis v. Franklin, after Sandstrom.

They never made a decision within the Yates decision, whether Francis applied new law or not.

What they implicitly held we think is that Francis did not fall under one of the two categories that they would look at a situation, divesting the trial court of jurisdiction of the conviction or the situation where the conduct alleged here was not subject to criminal sanctions.

Unidentified Justice: Well, I take it that Elmore was decided after the trial in this case?

Mr. Zelenka: Elmore was decided after the trial in this case, but before the State post-conviction relief review, and a Woods case was held subsequent and during the State post-conviction relief review and then he petitioned at that third stage while the State post-conviction relief review was pending on appeal to ask this Court in its original jurisdiction to look at the State v. Elmore case and apply that retroactively.

We would submit that that unique situation that he was looking for.

In fact, in his petition itself he is saying we are seeking the ability to argue the applicability of State v. Elmore and State v. Woods to this factual situation.

The South Carolina Supreme Court denied both times to apply it to this situation.

He's asserting that there is in favorem vitae review in the South Carolina decisions at any stage during the proceedings.

We would submit that the Yates decision itself clearly stands for the proposition that under South Carolina law, in favorem vitae review does not exist at all proceedings because they acknowledge in this case that the jury charges in State v. Elmore were similar to those that were found in violation... excuse me... that the jury charges in this case were similar to those found in violation in State v. Elmore.

Unidentified Justice: May I ask you a question on the sequence of events.

State against Elmore was decided in 1983.

Now, that's before Francis against Franklin?

Mr. Zelenka: Yes, sir.

Unidentified Justice: And that case had an instruction identical with Francis against Franklin, I mean, for all purposes, this Court assumed that it was the same, did it not, your State Supreme Court?

Mr. Zelenka: Similar to it.

Unidentified Justice: So that when they held the instruction bad in the Elmore case, they were not relying on Franklin, because it hadn't been decided?

Mr. Zelenka: No, sir.

Unidentified Justice: So they must have been relying on Sandstrom against Montana, is that right?

Mr. Zelenka: Well, they could have been relying on Sandstrom v. Montana.

They did not say it in their decision.

Or they could have been relying on their own State Constitution.

Unidentified Justice: Does the Elmore case cite any Federal precedent in it?

I haven't read it, I have to confess.

Mr. Zelenka: No, it does not.

Unidentified Justice: It did not.

I see.

Mr. Zelenka: There was a case that preceded that, State v. Madison, where they held there was a jury charge somewhat similar to the jury charge in this particular case.

They found that it was not violative of the Constitution, but then they held in Madison a similar charge that should have been given.

Unidentified Justice: Has your State Supreme Court ever cited and followed Sandstrom against Montana?

Mr. Zelenka: Have they ever cited and followed Sandstrom?

They've cited it and they've cited Francis in a recent decision.

Unidentified Justice: No, I meant Sandstrom against Montana.

Have they ever cited and followed Sandstrom against Montana, do you know?

Mr. Zelenka: They have... to tell you the truth, I cannot recall specifically a case that has cited the Sandstrom situation.

We have relied essentially on State law decisions of State v. Elmore, State v. Lewellyn, which stand for very similar concepts of the Sandstrom case.

And they've relied on those.

But in a recent case, State v. Patrick, they did acknowledge that the Francis situation applied to that.

Unidentified Justice: Mr. Zelenka, I don't entirely understand what the South Carolina Court is doing here.

If we do not have a retroactivity case in front of us, if I think this is not a retroactivity case, then would the South Carolina Supreme Court's determination that this does not come within one of the only two categories that we entertained review in, would that be wrong?

Mr. Zelenka: No, it would not.

Unidentified Justice: Doesn't the limitation to those two categories only apply in retroactivity cases?

Mr. Zelenka: No, not necessarily.

It would apply in any situation if the individual--

Unidentified Justice: Any collateral?

Mr. Zelenka: --claimed that he was not indicted, that the Court did not have jurisdiction over him, or a situation where he was charged with criminal conduct that subsequently was determined not to be criminal conduct.

Unidentified Justice: And those are the only bases on which you can collaterally attack a judgment on habeas in South Carolina?

Mr. Zelenka: No, sir.

In State habeas under this decision, that would be it, but under collateral review, they have much broader abilities to do challenges under Sixth Amendment violations and similar violations in the Uniform Post-Conviction Relief Act.

Unidentified Justice: I don't understand what you're saying.

Why is this decision different from all others?

Mr. Zelenka: Because this decision fall in a different procedural mode than the normal collateral review that's done in South Carolina.

It did not fall within the Uniform Post-Conviction Relief Act, which sets out the ability to do challenges under the United States Constitution, generally.

It is... the Uniform Post-Conviction Relief Act is more analogous to 28 U.S.C. 2254 than the State habeas proceeding that he went in and he asked to apply in the original jurisdiction of the Court.

Unidentified Justice: And you say under this procedure, the only things he could have raised were those two categories?

Mr. Zelenka: We think that's what this decision stands for, yes, sir.

Unidentified Justice: Whether it's a change in the law or not.

Mr. Zelenka: Whether it's a change in the law or not.

Those matters should necessarily then be brought under the Uniform Post-Conviction Relief Act.

Unidentified Justice: Then are you also saying, assume you prevail in this Court on the theory that you espouse, that this particular petitioner should go back to South Carolina and invoke the Uniform Post-Conviction Relief Act before he would have exhausted his State remedies?

Mr. Zelenka: The problem with his attempt to invoke the Uniform Post-Conviction Relief Act is that he is probably procedurally barred because South Carolina has, under Rule 50 of the Supreme Court Rules, a successive application.

Unidentified Justice: So you're saying that is not actually an available remedy at this time?

Mr. Zelenka: That would not be an available remedy.

Unidentified Justice: And it also was not an available remedy at the time of the decision we're reviewing now?

Mr. Zelenka: It was an available remedy to the extent that the application for post-conviction relief was pending when Elmore was decided.

I mean, he could have sought the Sandstrom issue under Elmore.

Now, Francis v. Franklin had not yet been decided, so under the Francis issue, it would not be available.

Unidentified Justice: But are you telling us... I just want to be sure I understand you... are you telling us that the way you read this decision that they in effect are saying, you've pursued the wrong remedy and you should have pursued the Uniform Post-Conviction Relief Act?

Mr. Zelenka: No.

I think what we're saying is, you don't have that remedy available to you under the State habeas corpus proceedings.

I think that's all they're saying.

I don't think they're saying--

Unidentified Justice: And where in the opinion do you find them saying that?

Mr. Zelenka: --The only part of the opinion that I would assert that I find them saying that is in their conclusion in which they state that collateral attack of a criminal conviction... and this is at the Joint Appendix, page 34, the top of the page, collateral attack of a criminal conviction--

Unidentified Justice: What page, please?

Mr. Zelenka: --Page 34 of the Joint Appendix.

Collateral attack of a criminal conviction on the basis of legal precedent that developed after the conviction became final must be reserved for those cases in which the trial court's action was without jurisdiction or as void because the defendant's conduct is not subject to criminal sanctions.

Unidentified Justice: But that's retroactivity, and I asked you whether this decision would apply whether or not the claim was based on retroactivity or not.

This is retroactivity talk.

Legal precedent that developed after the conviction became final.

Now, I'm saying, what if I believe that the claim here is not based on legal precedent that developed after the conviction became final?

This decision wouldn't bar it from being brought.

Mr. Zelenka: It would not bar it from being brought under the Uniform Post-Conviction Relief Act, if he could show a reason why he did not or could not raise that at the time of the original action.

Unidentified Justice: Well, that's fine, but it's a different point.

It seems to me that what this decision says, if I don't believe that this case is one involving new law, then this decision's wrong.

Isn't that right?

Mr. Zelenka: No.

Because they're looking at any type of legal precedent, any case that comes down.

What I think the South Carolina Supreme Court is saying that every time a new decision comes out, that does not automatically allow an individual to come to the Court to enter the Court to kill the finality that existed on that conviction at that time.

Unidentified Justice: This is not a new decision.

There's no new decision he's relying on.

Imagine I think that he's relying on you know, Sandstrom, all the way back.

It's been clear for years and years.

If that's what I think then this decision's wrong?

Mr. Zelenka: If that's what you think, then this decision is wrong to the extent that it would apply to the Francis situation.

Unidentified Justice: So if we think that Francis was just a plain open and shut application of Sandstrom, we reverse?

Mr. Zelenka: Not necessarily, because there are significant procedural bars in this case.

It would most appropriately then be a remand to determine whether bars existed.

Unidentified Justice: All right, all right.

But nevertheless, the decision was wrong.

Mr. Zelenka: No, I wouldn't say that the decision--

Unidentified Justice: I thought that's what you said in answer to Justice Scalia.

Mr. Zelenka: --The decision was correct to the... he determined that the decision was wrong to the extent that it pointed to Francis and whether Francis was new law.

I would submit that the question is that the judgment was correct because they denied it in this situation because they were not going to open up the Courts to a situation that could have been presented, a claim that could have been presented previously.

They determined that there was no reason for the opening up of the judgment in this case.

Unidentified Justice: Well, that's a different ground, though.

If we remand, they can decide that this is excessive application or that he's procedurally barred or something else.

But that's not the basis that this decision rests on.

It would be strange... I guess we've made mistakes before, but if we vacate and remand for reconsideration in light of Sandstrom, there must have been some federal issue presented to us.

In light of Francis, there must have been some federal issue presented to us, namely the issue of this instruction, and I suppose that it had been represented to us that the issue had been raised on direct appeal in the State Courts.

Was it?

Mr. Zelenka: It was not raised on direct appeal in the State Courts and it was not raised in the Uniform Application of Post-Conviction Relief.

A petition in the original jurisdiction of the Court was made that requested the South Carolina Supreme Court to apply the principles of State v. Elmore and State v. Woods to this case, while that case was pending.

Unidentified Justice: Is the opinion of the South Carolina Supreme Court dated December 22, 1982, the per curiam that appears, begins on page 10 of the Joint Appendix?

Is that the opinion of the Supreme Court of South Carolina which we vacated or remanded?

Mr. Zelenka: No, it is not.

The opinion that was vacated is on page 27.

Unidentified Justice: Was that on collateral?

Mr. Zelenka: Yes, that was on State habeas corpus, and all it said was we have considered the petition for the writ of habeas corpus and conclude that it should be denied.

Unidentified Justice: That was denial without opinion.

Mr. Zelenka: It was denial without an opinion.

Unidentified Justice: Well, did the writ of habeas corpus raise the--

Mr. Zelenka: Okay, the original writ requested reconsideration in light of State v. Elmore and State v. Woods, because those decisions came out after the direct appeal in State v. Yates, the decision you were initially pointing to.

Now, while that decision was pending before the South Carolina Supreme Court, Francis came out and he petitioned to supplement.

And shortly after his petition to supplement, this decision came down.

Unidentified Justice: --Well, a good answer to the remand would have been, this is procedurally barred.

Mr. Zelenka: That's correct.

And that is one position that we presented to the South Carolina Supreme Court.

Unidentified Justice: But that is not the way it wrote.

Mr. Zelenka: We submit they didn't need to address that issue.

Unidentified Justice: May I also point out, if I read this correctly, the Order on page 27 doesn't just deny the petition for habeas corpus but it also denies the petition seeking review of the denial of the application for post-conviction relief.

Mr. Zelenka: That's correct.

Unidentified Justice: So apparently, your opponent pursued both remedies.

Mr. Zelenka: He pursued both remedies before and that was on appeal.

Unidentified Justice: Before we remanded it?

Mr. Zelenka: Before you remanded it.

Unidentified Justice: But our remand was in a case that both invoked the post-conviction relief statute and the writ of habeas corpus.

Is that not correct?

Mr. Zelenka: It was our understanding from the remand and the particular request within the particular petition that he was seeking the writ of certiorari only under the writ of habeas corpus.

Unidentified Justice: Because in the order at least, he was seeking review of applied to both, that much is clear.

Mr. Zelenka: That would be correct, yes.

Unidentified Justice: But you think he bifurcated it in effect and only wanted the relief from half of it?

Mr. Zelenka: That would--

Unidentified Justice: Did he proceed pro se here, or did he have counsel?

Mr. Zelenka: --He had the same individual counsel he has here today representing him, along with a member of the Appellate Defense Commission of South Carolina in the post-conviction relief appeal.

And he also had counsel in the State post-conviction relief proceedings when he raised a Sixth Amendment challenge based upon a closing argument of a solicitor that was similar to the Thompson v. Aiken argument and the South Carolina Supreme Court implicitly rejected that with a denial of the certiorari petition done pursuant to Rule 50 of the South Carolina Supreme Court rules.

We would submit that the South Carolina Courts have the ability to fashion the types of relief that it is going to give and fashion the types of procedures that it's going to give in those situations, as long as it does not discriminate in those claims that are presented to it.

,--

In this situation, we submit that the South Carolina Court established its own common law and that they were not going to look at the issues as presented in Elmore similar to the issues as presented in this case in its original jurisdiction.

Further, we would submit that the South Carolina Court--

Unidentified Justice: Under the theory that they were retroactive?

Mr. Zelenka: --On the theory that they were retroactive.

But in addition, we would submit that because it was a sense of a procedural bar because of the situation in Elmore that if it was a Sandstrom issue as he urged in that particular case that that issue could have been raised previously.

Unidentified Justice: Where is that?

Mr. Zelenka: It's not within the decision.

That was within his argument that he made before the South Carolina Supreme Court.

We would further submit that the jury charges in this particular case did not violate Francis v. Franklin in that they did not, when closely viewed, shift any burden of proof on any of the particular elements of the crime.

It was merely first a definition of the sense of malice that it is the doing of an unlawful act without just cause or excuse, and second that malice is implied or presumed from use of a deadly weapon is really no presumption at all because it was followed immediately by the sentence that said, when all the facts and circumstances are presented surrounding the use of the weapon, that presumption is removed, and ultimately is for the jury to determine under all the facts and circumstances of the case whether in fact malice existed in the heart and mind of the killer.

We would further submit that this case does present a situation where there was harmless error.

Now while we understand that the proceedings that are before the Court does not mandate this Court to determine harmless error, we think that if the State of South Carolina and the South Carolina Supreme Court was in error in this particular order, that a remand would be appropriate for the Court to determine the issue of harmless of error.

But we think the facts and circumstances of this case, as we have briefed, support a conclusion that any error was harmless beyond a reasonable doubt.

Thank you.

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

Mr. Bruck, you have nine minutes remaining.

ORAL ARGUMENT OF DAVID I. BRUCK ON BEHALF OF PETITIONER -- REBUTTAL

Mr. Bruck: If I might just briefly answer--

Unidentified Justice: Let me ask you one question if I may.

Just glancing through the opinion of the Supreme Court of South Carolina on direct appeal in 1982, it gives no intimation that any challenge to this jury instruction was made on direct appeal.

Is that correct?

Mr. Bruck: --That is correct, there was none.

Appointed trial counsel handled the trial and the direct appeal, and the trial court post-conviction relief proceedings, all the same court appointed lawyer.

Unidentified Justice: What business was there raising it in the proceeding in this case?

Wasn't that it was an original habeas?

Mr. Bruck: This claim was brought in original--

Unidentified Justice: In the Supreme Court of South Carolina?

Mr. Bruck: --original habeas jurisdiction of the South Carolina Supreme Court at the same time as the post conviction appeal was being heard.

The State's response was that they did not object to consolidating the two cases for the purpose of, and I quote, "resolving the apparent issues".

It is only when the State began to lose that they--

Unidentified Justice: What was raised in that State collateral proceeding?

Mr. Bruck: --The primary issue was improper jury argument which was also a matter which could have been raised.

Unidentified Justice: When was the Sandstrom Francis instruction issue first raised anywhere in the South Carolina courts?

Mr. Bruck: It was first raised in the original jurisdiction of the State Supreme Court in January, 1985.

Unidentified Justice: And I take it that the suggestion is that that claim was procedurally barred?

Mr. Bruck: That is not a suggestion that can fairly be made on any basis in South Carolina law.

What that is is the State's unsuccessful argument to convince the State Supreme Court to create a procedural bar.

There is none.

South Carolina has made the reasoned judgment that in capital cases--

Unidentified Justice: And I suppose that if there had been a procedural bar, the opinion in this case, they wouldn't have needed to go to all the trouble of writing an opinion in this case.

They could have just said, procedurally barred.

Mr. Bruck: --Absolutely.

But the South Carolina Supreme Court would not do that because that is not the law.

It has not ever been the law.

The State cites a non-capital case from the 60s, dealing with a procedurally barred trial claim that couldn't be raised on habeas and that's all the authority.

The authority on the other side is a case called Thompson v. Aiken, cited at footnote 5 of the Petitioner's brief.

Thompson v. Aiken, a trial arising in the very same courtroom as this one did, involved an improper jury argument by a solicitor which was not raised on direct appeal, it was not objected to at trial, on post-conviction relief, the petitioner filed a collateral attack, raising for the first time, the solicitor's improper jury argument, it was rejected at the trial court level, and on appeal, the South Carolina Supreme Court granted relief, reversed, said that in effect, we missed it on the first go around but we have subsequently decided in other cases that these arguments are improper.

We cannot distinguish the argument here from the argument there.

Therefore, this man is entitled to a new sentencing hearing.

The Thompson v. Aiken, I think totally disposes of this whole nest of procedural arguments which South Carolina has raised without success below, and now tries to renew here.

Unidentified Justice: Well, what about what it says up here that this kind of State habeas proceeding is limited to the two little circumstances that are mentioned by Mr. Zelenka?

Mr. Bruck: I think it is only the State's brief that says that.

The State Supreme Court never said so in its opinion, and the part of the opinion that Mr. Zelenka read to Justice Scalia as the Justice pointed out dealt only with retroactivity.

Unidentified Justice: On page 34 of the Joint Appendix if I'm reading where I think Justice O'Connor was referring to, it says, collateral attack of a criminal conviction on the basis of legal precedent that developed after the conviction became final must be reserved for those cases in which the trial court's action was without jurisdiction, or is void because the defendant's conduct is not subject to criminal sanction.

Now, that's the majority opinion of the Supreme Court of South Carolina.

Mr. Bruck: Yes, it is.

Yes, it is.

That, again, by its terms applies only to retroactivity.

In any event, that was not the law the Court applied in Thompson v. Aiken.

Since they applied their own precedents retroactively, it seems that they have reserved this doctrine specially for Francis v. Franklin.

Unidentified Justice: Are you saying that the law in South Carolina has changed since March, March 29, September 29, 1986, when this opinion issued?

Mr. Bruck: No, I'm not.

What this is is a retroactivity holding and they have not changed the scope.

This only kicks in once they identify some new legal doctrine by its very terms on the basis of legal precedent that developed after the conviction became final.

If the precedent had been there all along, and it was in this case, this claim would be cognizable under South Carolina law even though it was raised for the first time on collateral review.

That is a well settled principle in South Carolina.

Unidentified Justice: Would it be cognizable in this form of State habeas proceeding do you think?

Mr. Bruck: There is no reason to believe otherwise.

Unidentified Justice: Despite its language saying it wouldn't be?

Mr. Bruck: They are... when they are speaking of collateral attack, they are referring equally to habeas and to the proceedings brought under the statutory procedure, the Uniform Post-Conviction.

Those terms have been used interchangeably.

State against McClary, the first time they said they would not apply Elmore retroactively was a statutory Uniform Post-conviction Relief Act proceeding.

They have drawn no distinction.

Truesdale v. Aiken, the Skipper case that this Court summarily reversed, that was a Uniform Post-Conviction Relief statutory proceeding where the claim had been raised at trial, it had been raised on direct appeal, it had been raised at the trial level in collateral attack, and there was never a habeas proceeding.

The distinction that the State has attempted to create between a State Constitutional habeas corpus remedy that was utilized here and post-conviction relief is simply a creation of counsel for the respondent.

It is not to be found in South Carolina law, and I don't see how you can find it in this opinion, except perhaps arguably where there is as in this case an essentially imaginary retroactivity issue.

Justice Stevens inquired whether or not the South Carolina Supreme Court has ever recognized that Sandstrom is involved here, and the answer to that is, yes.

There are two cases, both of them are cited in my Reply Brief.

One is State against Peterson, and the other is State against Patrick, both of which refer really in string cites or in something like string cites to Elmore, Francis v. Franklin, and Sandstrom v. Montana, as all standing for the same proposition.

I don't think there is the slightest question under South Carolina law that Elmore is simply the application of Sandstrom, and the Supreme Court has essentially admitted as much in those cases.

If there are no further questions, that's all I have.

Thank you very much.

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

The case is submitted.

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

Attribution:

The OYEZ Project

Featured:

Griffith v. Kentucky - Oral Argument

Fri, 09 Jan 2009 14:48:30 +0000

Case:

Griffith v. Kentucky

Media File:

85-5221_19861014-argument.mp3

Related Transcript:

1986_85_5221_argument.xml

Transcript:

ORAL ARGUMENT OF J. VINCENT APRILE, II, ESQ. ON BEHALF OF PETITIONER

Chief Justice Rehnquist: We will hear argument first this afternoon in No. 85-5221, Griffith against Kentucky.

Mr. Aprile, we will hear from you first.

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

The case of Griffith versus Kentucky presents a single issue, and that is in cases pending on direct appeal should the holding in Batson versus Kentucky be given retroactive effect.

As a result of this Court's holding in Allen versus Hardy, there is no question before this Court that Batson will not be given retroactive effect in cases that were final when Batson was decided.

You have ruled Batson will not apply retroactively to those cases.

So it is in this context that Griffith versus Kentucky and the following case, Brown versus United States, present you the opportunity to take one step further than you did in Shea versus Louisiana and embrace the rule that you had prior to Linkletter versus Walker, and that is that you would return to decision that holds that all constitutional rules that are announced will be applied retroactively to all cases on direct appeal.

You have had 21 years of experimentation since Linkletter versus Walker and, as many of you have expressed in various opinions and past members of the Court have indicated, the difficulty with retroactivity that has been generated by the attempt to draw bright lines, particularly in the area of the question of direct review.

We would submit that the easiest solution and perhaps one that would accommodate factors you have utilized in other contexts would be to go back to the pre-Linkletter versus Walker situation and, even though not constitutionally mandated, embrace the concept that those cases that have raised the same issue that are not final would be entitled to the benefit of the new constitutional principle announced.

Unidentified Justice: Well, Mr. Aprile, does your submission embrace what is referred to as Justice Harlan's view on the subject, where I believe he said that all cases on direct review not final should get the benefit of the new rule, but none on habeas corpus should get the benefit?

Mr. Aprile: Well, Your Honor, it is obvious from the context of the situation we are put in by the ruling in Allen versus Hardy that takes away the question of collateral relief in the Batson case, I am obviously not in a position to strongly advocate, as someone who has a client who's involved in that situation, for the adoption of the second part of Justice Harlan's approach.

But I do feel that you have ideally set the situation and the table here to embrace it in the context of Batson.

I think it's very interesting that if we look at what you decided in Shea versus Louisiana, in the footnote you pointed out that cases such as Brown versus the United States and Griffith versus Kentucky were not even decided on the basis of Shea versus Louisiana.

But those cases that were pending in this Court on writ of certiorari when Edwards versus United States came down were granted automatic remands.

They were given retroactive application.

And in your most recent case, Shea versus Louisiana, you only addressed the question of those that were really on direct review in state and federal courts and not pending before this Court.

It's very difficult to say that there has been a good strong rationale for applying the different doctrines of retroactivity in cases on direct appeal.

If I could perhaps subvert for a second, the two concepts that you've often used in the context of retroactivity, reliance and effect on the administration of criminal justice.

I submit to you that as you decide a case and announce a new constitutional rule and allow the question of retroactivity on direct appeal to swing and sway in the breeze, the lower courts then go on and make their decisions.

Some will opt that the decision will be retroactive, some will opt that it will not be retroactive.

That generates much litigation by people on both sides of this podium, because if we lose we're going to come to you on petition for cert and ask that you hold that the case be retroactively applied.

If it goes the other way, they will come and ask the opposite.

So as far as impact on the administration of criminal justice and reliance by the courts below, it would seem that a rule that went back to pre-Linkletter and said there will be a presumption that when the case is on direct review, it is not final, it will get the benefit of the constitutional ruling.

Unidentified Justice: Well, what do you conceive the pre-Linkletter law, as you refer to it, to be with respect to cases that had become final and were on habeas corpus review or some sort of collateral attack?

Mr. Aprile: Well, I may be wrong in this, but it was my basic understanding that in that regard, in that mode, that they oftentimes were granted complete retroactivity.

I have no quibble with the need in instances in dealing with full and complete retroactivity focusing on final decisions that perhaps it would be good for you to utilize tests such as the reliance and impact.

Unidentified Justice: Well, but you know, if you're talking about the desirability of a rule that everyone will know it's in effect the minute a decision comes down, isn't there also a good claim for a bright line rule in the collateral attack that it does not get retroactivity?

Mr. Aprile: Again, Your Honor, obviously there are arguments that could be made for that purpose.

I think that some of the exceptions that you have carved out on both sides of the scale would have application there.

For example, when a case... when a decision announced by this Court significantly impacts on the truth-finding process, it may very well be that that is the type of exception that you will provide full retroactive relief on collateral situations.

Unidentified Justice: If you're getting into kind of the weighing of factors and so forth, certainly the reliance element militates against you here, it seems to me.

Obviously, there were people who did rely on the validity of the Swain decision at the time cases were tried, even though they hadn't become final.

Mr. Aprile: Well, I think that we can look at that in two ways.

I think that the particular case that you have before you today is different from many of the cases that you have decided retroactivity on.

Number one, the relief that you gave in Batson was not to reverse and grant a new trial, but it was remanded for a simple inquiry, an inquiry that involves, first of all, determining whether or not, usually from official court records, blacks were struck by the prosecutor in a large number; secondly, if that were true, the defendant showing he was a member of a cognizable racial groups; and then putting the prosecutor to the test of stating trial-related reasons why he made those strikes as opposed to racially biased reasons; and the court then deciding whether or not the prosecutor had overcome a prima facie showing of discrimination made, as you pointed out, could be now made under Batson.

What reliance was there in the past?

The reliance not to hold a hearing is all that we had.

As members of this Court pointed out in the Batson decision, certainly no prosecutor should have believed that he had the right to rely on Swain for the proposition that he could challenge people, blacks and other minorities, on the basis of race with no trial-related basis.

The only thing he had a right to rely on was that the courts probably were not going to utilize the evolving equal protection test in other contexts to require that the prosecutor respond to an allegation of racial prejudice in the context of one limited case.

Any prosecutor who had read even Swain would have thought to know that when this challenge was raised against him, the possibility that later he would be called on the carpet for his conduct in many cases and would have kept some sort of trial notebook, some sort of file, that would have allowed him to respond in these situations.

As this Court stated in Solem versus Stumes, unjustified reliance is no reliance at all.

Now, if there is a price to be paid by conducting hearings after the fact on this limited issue, it is certainly a price that we should pay for guaranteeing the right of participation of blacks in our jury system and secondly the right of a defendant not to have excluded from his particular jury people of his same race simply because the prosecution has a racially biased motive for excluding them.

So I think when we look at reliance, it's certainly... if you want to go back to the other standards and tests that this Court has utilized in dealing with retroactivity, this client, this Petitioner, Mr. Griffith, is not afraid to be judged under those standards.

As we pointed out in the brief, we think we succeed.

We do not think that this case is a clear break that mandates retroactivity.

You have said in the context of Allen versus Hardy that it is an explicit and substantial break.

But indeed, in Allen versus Hardy you did not stop there.

This Court did not say this is an explicit... this is not a clearcut break.

You did not use the magic language, so to speak.

I find that not to be a conclusion of law finding by this Court.

But secondly, you went on and went through the reliance and the effect on the administration of justice analysis for collateral review.

I think by the very nature of the steps taken by this Court, it was clear that the majority opinion did not embrace the concept that this was a clear break in the law.

Unidentified Justice: Well, that's only because we use a different test for collateral review.

I mean, we went through those additional steps because those are the additional steps we use for collateral review.

We don't use them for direct review.

Mr. Aprile: Justice Scalia, I think that in all fairness... and it's very difficult for me to anchor in, but I certainly can refer to other cases where in the course of this 21 years this Court has looked at things and said, if it is a clear break in the law, non-retroactivity will be mandated.

There are a number of cases in the last 21 years where this Court--

Unidentified Justice: Going back 21 years, you can find a lot of different approaches, I'm sure.

I'm talking about the approach that we were following at the time of Allen.

We have followed one set of tests for collateral review and a different set for direct review.

Mr. Aprile: --Well, I would beg to differ with you in this regard, that if you look at a number of the retroactivity cases over that period of time there has often been the statement made that this Court sees no distinction in this case between full and complete retroactivity or limited retroactivity to those cases on direct review.

I would hope, and I would like to agree with you, that if the decision in Solem versus Stumes and Shea versus Louisiana create two different standards and embraces Johnson from the Fourth Amendment and says, from now on on direct review this is what we do, if Shea versus Louisiana is the controlling precept, then I have no trouble accepting that and saying, fine.

Then we will put aside that finding in Allen versus Hardy, as you wish to do, and say that you didn't have to reach that question because you used a different test of retroactivity on collateral review.

I'm willing to accept that, because I think if we use Shea versus Louisiana's test we are in much the same situation as Petitioner Shea was in, because again, while there was a change of rules, there was no clearcut break in precedent.

And in that situation, what you did in Shea versus Louisiana was to look at the Harlan approach.

And when you looked at the Harlan approach, what did you say?

You said, if we utilize application of retroactivity of the Edwards decision to cases on direct review, we will provide fairness to each litigant that was before the Court on direct review, because each of them will be judged on the merits of their own case, not on the chance that their case was not the one selected to be the one in which you announced the rule.

It's ironic that I stand before you today asking for equal treatment for Griffith in this case, when his substantive complaint is that he was denied equal protection by the action of the prosecutor in this case.

I think it's ironic that I stand before you today and ask that you give him retroactive relief on direct review because of the chances that were involved.

The same prosecutor that utilized his peremptory strikes in the way that he did in Batson versus Kentucky is the same prosecutor in this case.

It occurred in the same circuit court.

The only difference is the division and some difference in time.

As this Court has frequently pointed out, litigants such as Mr. Griffith usually have no control over the speed at which their case reaches this Court, and it was only chance--

Unidentified Justice: And it was only one month between the convictions.

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

And it is very, very difficulty to go back and say, for purposes of your equal protection claim, yours cannot be considered because yours was not the one selected at random.

That was Justice Harlan's entire point in looking particularly at direct review.

How can we justify as a system of law built on precedent giving only prospective application, with one exception, and that is to the case which you select for the particular purpose of announcing a rule?

Unidentified Justice: What is the justification for the exception having to do with a clear break in the past?

Mr. Aprile: Your Honor, I really believe that the clear break rule is justified under the test of reliance and impact on the administration of justice when you carry it all the way out through the full and complete retroactivity that embraces not only those cases on direct review, but those cases which would be... that have already become final and would be able to get relief only through collateral action.

Unidentified Justice: Well, confining it to cases on direct review, what is the justification for the exception?

Mr. Aprile: Well, the justification would be very simply that the people that administer whatever the particular rule was, in this case prosecutors and trial judges, would have the right to rely on an existing precedent that so clearly spells out what their conduct should be.

I find it very interesting that both the state of Kentucky and the United States Government in Brown versus United States take the position that there are so many people that would be affected by this on direct, if you granted retroactivity on direct review.

Unidentified Justice: Well, on that justification, then the case that is taken should be made prospective only and not affect that individual?

Mr. Aprile: Your Honor, I certainly, as a person who represents individuals before a court, would hate to see that this Court would embrace as a general rule only prospective application of decisions.

Unidentified Justice: Well, but I'm groping for the justification and I haven't really seen very much yet.

I'm not blaming you for it.

Mr. Aprile: I apologize for that.

Unidentified Justice: No, I'm not blaming you.

You're doing the best you can to justify the rule.

Mr. Aprile: I think that your question does introduce a factor.

Maybe I misunderstood your question.

Unidentified Justice: You wouldn't mind doing away with the exception, I take it?

Mr. Aprile: No.

In fact, I feel that, as was pointed out in the dissent in Shea versus Louisiana, the position you took in Shea versus Louisiana simply doesn't clarify the problem because we still have all the courts below you speculating on what is a clear break in the law.

I think that if you were asking... and perhaps I'm--

Unidentified Justice: You don't mind that in collateral review, though?

You think that's fair game there?

And there are probably, you know, more cases that come up through habeas that are going to raise the same issue than are on direct appeal.

That confusion is acceptable in that context?

Mr. Aprile: --Well, I think that confusion is acceptable for the purpose that other people, Justices on this Court, have spoken to that issue in various contexts, both in dissents and in majority opinions, and have pointed out that there is some reason for embracing a line that is based on finality.

It's true in this case that finality, being that the time for petitioning the case to this Court for certiorari had elapsed, in that situation then we move over and talk about the question of clear break.

Yes, it will still work unequal application of the law in certain situations, and perhaps some of the exceptions that you have carved out in collateral review, such as impact on the truth-finding process, would help to make sure that that type of unequal application would not fall in situations such as where you dealt with in Hankerson versus North Carolina, the retroactivity of the--

Unidentified Justice: You're missing my point.

I think my point is the same as the Chief Justice's earlier.

That is to say, that you're urging us to do is to adopt a bright line rule that will eliminate confusion in the law, but the rule you're proposing is one that will only eliminate confusion in the direct review situation.

And you're not willing to say, adopt a similar view in the collateral review situation.

And the fact is that there are probably more cases that are going to be coming up on collateral review than on direct review.

Mr. Aprile: --I feel at a real loss to urge that position before this Court today.

This Court by its action in Allen versus Hardy took that issue away in the context of Batson.

It's very difficult for someone in my position to become an advocate for a rule that has no impact on his client or the class of client that he would represent.

I am not in a position... certainly I could say, yes, Your Honor, I want you to embrace that rule.

But it would be sort of hypocritical, wouldn't it, under the circumstances?

I am not representing anybody who will be benefited or harmed by that rule.

So what I am saying is, you granted the writ of cert under these circumstances and you decided that Batson would not be retroactive in Allen versus Hardy.

I have no quibble with that, but it puts me in a position that that is now a moot question.

I don't think I am the person to advocate with an interest for a client I don't have in that situation.

Unidentified Justice: You're trying to sell us a new view.

You're trying to sell us a new view.

Mr. Aprile: I certainly am.

Unidentified Justice: But you're not giving us a whole view.

You're just giving us a half of it.

And I'm saying it doesn't make any sense as a half.

Mr. Aprile: Well, I think that it would be--

Unidentified Justice: I don't think there's any hypocrisy about it.

It's just--

Mr. Aprile: --I think that basically the answer to this is simply this, that under Justice Harlan's view, if you move it into the collateral area, he would have a general principle or presumption that those cases... that there would not be retroactive application to cases that were final, but he would leave certain exceptions.

I am not here to say that is a good rule or a bad rule.

It's certainly something you could do.

I wouldn't imagine you would do it in the context of this case.

But I suspect that this case offers you the ideal opportunity to remove one aspect of this, and that is a bright line for direct appeals.

In a following case, you could then deal with those cases where finality is involved, knowing that you had carved out a bright line in this situation.

I think it's very important that I point out to you that in looking at Allen versus Hardy I was concerned about the question of whether the impact of the process that's involved here, the new constitutional rule on the truth-finding process.

I think that my case and Mr. Brown's case, the whole Batson concept, is more akin to the decision on retroactivity in Brown versus Louisiana applying Burch Louisiana, and I think it for this reason.

If we look at what happened in Burch versus Louisiana, this Court said that a six man jury had to be unanimous, and when it was a vote of five to one that that was unconstitutional.

And that you said when you addressed that question in retroactivity language in Brown versus Louisiana was how this impeded and impaired the truth-finding function of a trial.

And although it may not be immediately apparent, I think that what we have in Batson is a very similar situation.

If you realize under the facts of the situation, each of the jurors who were struck by the prosecutor, those jurors who were black, under the rules of procedure in Kentucky had survived every test that could be put to them.

There was only one way that they would not serve on the jury, and that is if random selection eliminated them.

In many ways, they were like the sixth juror in Burch versus Louisiana.

They were going to be on that jury but for one of two things: the prosecutor's improper peremptory challenge or random selection.

So in fact, they were pulled away at the very last minute from being able to participate in that jury, in much the same way the Louisiana rule nullified the one vote by not having a non-unanimous verdict when you had a six-man jury.

Unidentified Justice: --Mr. Aprile, how widespread is this random selection business that you have?

it's not in effect in most states, I think.

Mr. Aprile: Well, Your Honor, I'm not really in a position to say that.

But normally I would say this, that in most instances... and I've only tried cases in the military and in Kentucky, to be quite frank with you... in most cases I would feel that peremptory challenges would only be exercised once you had reached the situation that people had gotten through all challenges for cause.

And whether or not there would be any requirement then of random selection or they would have just come up with the number to try the case, 12, 13, 14, depending on the number of alternates, the point is still the same.

I used Kentucky because that's the facts of the case.

The only way those people were stopped from sitting on the jury if there was no random selection was by the action of the prosecutor.

And he effectively deprived the defendants in those cases--

Unidentified Justice: I know, that's the cleaner way of handling it.

You don't have to explain.

Mr. Aprile: --And so the point that I'm trying to make here is very simply this: You looked in Brown versus Louisiana and said the integrity of the fact-finding process was so affected by what was done there, and that was done by a racially neutral statute or rule.

It didn't know which juror would be come the one vote who didn't get counted, who didn't have to be there for a unanimous verdict.

But here we have, at least on a prima facie showing we will have, that the action that deprived that juror of participating was done by a racially motivated action by a state employee, a prosecutor, when he knew under the statement made by this Court in Swain versus Alabama that it would be improper to do that.

I say on that basis we make a very strong showing that what occurred in Batson versus Kentucky, the rule that you announced there, does have incredible impact on the truth-finding function.

And on that basis alone, we should be entitled to retroactive application of Batson to cases on direct review.

If we were to go to the Stovall criteria, the Linkletter versus Walker criteria, I believe that we can meet that, too.

I believe we can meet that for showing this:

Number one, you have effectively removed a large number of cases that could cause impact on the judicial administrations of the state and federal courts by holding in Allen versus Hardy that this will not, Batson will not have collateral retroactivity.

Now we are only dealing with the cases that are on direct review.

It stands to reason that the relief that you granted in Batson will require some going back, some jogging of old memories and looking at court records.

But we have put not a clear-cut, finite time line on this, but we know that most of the cases that will be on direct review will be those within a reasonable amount of time.

So consequently, it doesn't appear that there will be a large number of cases, nothing like there would have been had you granted full retroactive application of Batson, particularly to those cases on collateral review.

And secondly, with regard to reliance, I think I've addressed that already by discussing, prosecutors and judges really didn't have a right to rely on Swain if it was to say prosecutors had the right to hide behind Swain in makin peremptory challenges based solely on race and not on trial-related conditions.

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

Chief Justice Rehnquist: Thank you, Mr. Aprile.

We'll hear next from you, Mr. Richwalsky.

ORAL ARGUMENT OF PAUL W. RICHWALSKY, JR., ESQ. ON BEHALF OF RESPONDENT

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

In the 21 years and four months since Linkletter that Mr. Aprile referred to, there have been in our opinion or in our view two bodies or two schools of law that you have handed down with regard to the question, the very narrow question, of the retroactive application to cases on direct appeal.

And we feel under either school of law or either body of thought the rule that you have handed down, the new rule of constitutional criminal procedure of April the 30th of this year in Batson versus Kentucky, requires prospective application only.

In the first instance, Batson was a clear break case.

It was a classic clear break case.

Obviously, on this point Petitioner and Respondent disagree.

The 1982 case of United States versus Johnson set out the standard test for clear break cases, and in effect you said that if there was a clear break case prospectivity is preordained.

Batson meets two of the three criteria: It explicitly overruled a past precedent; that being Swain versus Alabama; and it disapproved a practice which this Court arguably has sanctioned in the past.

Batson, we make this claim that it was a clear break because not only are there some similarities between Swain and Batson if you put them side by side, especially with regard to the dictates of this Court in the area of equal protection, but more importantly where we come with the clear break argument is that you effectively changed the nature of peremptory challenges, especially the use and purpose to which prosecutors or any litigant could avail himself in this particular case to the use of peremptory challenges in a particular case.

This Court specifically stated that, to the extent that Swain is inconsistent, it is overruled.

Thus, we feel the argument can be made that Batson was precisely the type of clear break--

Unidentified Justice: That's in a footnote, isn't it?

Mr. Richwalsky: --Yes, Your Honor.

Unidentified Justice: I suppose that's of no significance, but it's in a footnote.

Mr. Richwalsky: I believe it is in a footnote, Your Honor.

But again, when you look at the language in Swain, Justice White went into great detail about the history and the system of peremptory challenges, that they would not be... that the use of a peremptory challenge to strike a black individual in a particular case is not a denial of equal protection.

Batson, 20 years later, said it was, and that all of a sudden the unfettered, unchallenged right of a prosecutor to use a peremptory challenge, as handed down and as dictated by Swain, completely changed 180 degrees on April the 30th of this year, when now hearings have been indicated, reasons have to be propounded in order to justify such a use of a peremptory challenge.

So we believe that classically this was a clear break case.

Thirdly, as Mr. Aprile referred to, under Allen versus Hardy, two months to the day after Batson, this Court said Batson was an explicit and substantial break with prior precedent.

Now, obviously you did not use the words or the magic words it was a clear break.

But I would submit that it's a very fine line between a clear break and an explicit and substantial break.

Again, the third point being that Batson was a clear break and deserves prospective application only.

As one attempts to study this body of law, an issue or an element that consistently comes up is the question of whether or not it was foreshadowed.

Was Batson, was the demise of Swain foreshadowed?

It's interesting, I think, to point out that not even Batson himself attacked Swain as the basis for overturning his particular conviction or the error that he raised in his particular case.

No case on the basis of federal law claimed that Swain no longer controlled.

In the states... there are two states you asked about the effect, I believe, Justice Blackmunn, that this might have.

There are 48 states similarly situated who rest on your decision on the retroactivity question of Griffith and Batson.

The two states that went their own way, if you will, cited the continued vitality of Swain and the continued application, and grounded their new approach on reasons particular to their own particular state constitution.

The fact that Swain was criticized--

Unidentified Justice: May I ask you about the 48 states?

Aren't there some states, such as California, that had actually made this kind of decision before we decided Batson?

So would they be among the 48?

Mr. Richwalsky: --No, Justice Stevens.

Massachusetts and California are the two that have gone their own way, so they have... and they founded that on reasons of their own constitution and they founded in on fair cross-section and impartiality grounds.

Unidentified Justice: But they weren't really retroactivity decisions.

They just decided--

Mr. Richwalsky: No.

Unidentified Justice: --the merits of the issue before we did.

Mr. Richwalsky: Exactly.

The point being that Swain wasn't foreshadowed, and everybody up until April the 30th of this year, every state and every federal, every trial and every appellate court in this country, recognized Swain to be the law and the tenets of Swain to be the law.

So again, the argument that I'm trying to proffer to the Court is that when Batson came out it was a clear break and a dramatic clear break.

Unidentified Justice: What about New York and the McCray case?

Did that have any impact there?

Mr. Richwalsky: No, Your Honor, I do not believe that it does.

And with all due respect to Justices Brennan and Marshall, who indicated their concern and who perhaps foreordained the demise of Swain, that is not enough, because up until actual precedent is overruled the authorities have every reason to rely upon that.

And I think the dissent in the McCray case--

Unidentified Justice: I actually was referring to the Second Circuit opinion after it was here the first time.

Mr. Richwalsky: --That I'm not familiar with, Your Honor.

Even should a prosecutor have had reason to think that Swain was foreshadowed, there was no standard upon which he could rely in attempting to anticipate what this Court would require concerning the eventual demise of the Swain decision.

We believe for those reasons or for these reasons just articulated that again, that we think it's without question that Batson was a clear break case and is entitled to prospective application only.

But if, for whatever reason, this Court does not feel that Batson was a clear break, then I would submit to you the traditional development of precedent that this Court has handed down under Stovall and we believe under that test as well Batson requires prospective application.

That test can be broken down, obviously, as questions have already been directed, to purpose, reliance, and effect.

And as also some of the questioning has gone this afternoon, those cases which indicate that if it's an impact on truth-finding then retroactivity is called for, but if not then prospectivity is the order of the day.

Unidentified Justice: But your Kentucky courts didn't discuss any of that.

They just said Swain is it.

That's all it said.

Mr. Richwalsky: Exactly, Your Honor, Justice Marshall.

Unidentified Justice: All the rest of that is not in this case.

Mr. Richwalsky: No, but I mean--

Unidentified Justice: All we've got in this case is a prosecutor who was the same prosecutor in the Batson case, Swain is it, and the Supreme Court of Kentucky said, we agree, Swain is it, period.

That's this case.

Mr. Richwalsky: --Exactly, and it proves a point of reliance, that no court wished to go beyond the tenets of this Court in what you said in Swain up until April the 30th.

And the fact that the prosecutor in this particular case was the same prosecutor in the Batson case I think is of no moment, because in theory it could have come from the same prosecutor's office.

We have a lot of one-man prosecutor's offices in Kentucky, and it could have come from that jurisdiction itself.

Unidentified Justice: But it didn't.

Mr. Richwalsky: But it didn't.

But again, that prosecutor, regardless of who the prosecutor was, was still entitled to rely upon what the Court said in Swain, unchallenged, unfettered use of peremptory challenges, for whatever reason, in a particular case.

Unidentified Justice: Do you think that that prosecutor was prejudiced?

Mr. Richwalsky: No, Your Honor.

Unidentified Justice: Did you read the record?

Mr. Richwalsky: Yes, Your Honor.

I hired that prosecutor.

I was the district attorney in Louisville at the time.

Unidentified Justice: I don't ask you to take the blame for it.

I asked you to admit it, to admit the truth.

Mr. Richwalsky: No, I do not believe that he was.

Under the traditional retroactivity principles when we get to purpose and the reason, if it can be anticipated why this Court handed down the Batson decision, I would make the analogy to what this Court has said in the Fourth Amendment type of cases and the development in that area.

You saw a wrong that after 20 years you decide to address specifically in the use of peremptory challenges.

All the earlier cases talk about the governmental action in discrimination with regard to the venire, with regard to jury service, with regard to actual participation on petit juries.

And now finally again, why Batson was such a clean break is you address the right of a litigant, the right of the Government, to use that peremptory challenge.

And in effect what we hear you say is: Trial courts, prosecutors, we're going to change the rules, we're going to change the rules with regard to the use of peremptory challenges, and in the future go out and, if you will, sin no more; go out and follow our dictates in the future, just like you told the police officers in the sixties and in the seventies when a new embodiment of search and seizure law was handed down.

It didn't affect... it wasn't retroactive to everybody else that was waiting in the wings, but you said, in the future go out and make this correction.

We feel that was the purpose of the Swain... or the Batson decision.

The truth-finding, again citing this Court in Allen versus Hardy, in June of this year you said there may be, or that Batson may have some impact on truth-finding.

But you went on to say, as we believe and as we heard you, that this wasn't the sole purpose, and you talked about to ensure that the Government does not discriminate against citizens who are called for jury service and to strengthen public confidence in our administration.

So the rule in Batson we submit serves multiple ends, and only the first of which may have some impact on truth-finding.

Your cases, your decisions, have held that the impairment to truth-finding must be substantial and not merely incidental in order to be considered for retroactive application.

The other tests under the traditional rules of reliance and effect I think that we have attempted to cover, that the reliance was universally viewed and upheld.

It's been great by every court.

And again, the thing to keep in mind, we would submit, is when you address us on this particular point you're not just talking to prosecutors; you're talking to trial and appellate courts, too, who took you at your word in Swain and what you held, and the reluctance that any of those courts had to overturn you until April the 30th.

The effect, we think, would be significant.

It's impossible, very difficult to know how many cases are involved out there.

I agree with Mr. Aprile that the reduction... or your language in Allen versus Hardy with regard to the collateral matters, that effectively removed many from consideration.

But we still feel that the numbers are significant, and the difficulties and the burden on the courts that would be called into play should you hold Batson retroactive we would submit to you calls for prospective relief only.

So again, under either embodiment of law and principle as we interpret your decisions of the past 21 years, under the clear break test or under the traditional test, either application we feel calls for the prospective relief only of Batson versus Kentucky.

I'd be happy to attempt to answer any questions should the Court have any.

Chief Justice Rehnquist: Thank you, Mr. Richwalsky.

Do you have anything more, Mr. Aprile?

You have four minutes.

REBUTTAL ARGUMENT OF J. VINCENT APRILE, II, ESQ., ON BEHALF OF PETITIONER

Mr. Aprile: Thank you, Your Honor.

I would like to begin by addressing the statement that was made by the attorney general, that being that only two states have dealt with this issue.

In pages 34 and 35 of the brief for the Petitioner, we point out a large number of states that have dealt with this particular question under their state constitutions or federal courts which have dealt with it under their supervisory power or, like the Sixth Circuit and the Second Circuit, dealing with it under a Sixth Amendment analysis.

All of those particular analyses would reduce the number of cases that direct... retroactivity on direct review would approach.

For example, the attorney general tells us that only, I believe it was, California and Massachusetts had addressed this under their state constitution.

New Jersey and Florida have both addressed it and, for example, Florida held under their state constitution this type of situation to require retroactive relief to all cases on direct review.

But I won't burden you any longer with that, only to state that it substantially reduces the number of cases that would be affected by a grant of direct review retroactivity, because a lot of these cases have been decided in the state courts on different grounds and accomplished the same purpose.

So they would not... this would not be a problem for many of those states.

It seems to me as the proponent that if there will be a large impact on the administration of justice it is the obligation of the attorney general representing Kentucky to come forward and demonstrate to you this large number of cases.

I believe it was in Shea versus Louisiana you looked at it and said that there has not been any showing by anyone that there would be this severe impact.

I would also point out that the reliance that has been placed on this particular decision should always be construed in the light that a prosecutor knew that at any time some litigant could come forward and attempt to raise the question of the office's or that particular prosecutor's repeated use under Swain versus Alabama of peremptory challenges in case after case.

It would seem to me that the prosecutors' like criminal defense attorneys, had an obligation also to keep aware of the changes in the law with regard to equal protection violations.

This Court in Batson emphasized that the standards of proof continued to change from Swain up until Batson in the context of other equal protection violations.

What the representatives of the state of Kentucky say to you today is: We did not have any obligation to see the changes that were occurring with regard to equal protection violations in any other context; we had the right to rely solely upon what was said in Swain.

And yet, they did not wish to rely on the broad teaching, the actual bright rule of Swain that was never changed, and that is that prosecutors could not use peremptory challenges in a way that would use race as a basis for disqualifying blacks from participating in juries.

So I don't believe that they have a good faith argument with regard to reliance.

I believe we have demonstrated the need for a clear bright line test on direct appeal for retroactive application.

I believe that the experience of this Court up until 1965 demonstrates that that can be accomplished without significant harm to the administration of justice.

And I think that in the right case, were you to find that you needed not to give retroactive application on direct review, it may be the case in which you would give solely prospective application.

And I would suggest that, even if we go to the Shea versus Louisiana test or the Stovall v. Denno test, that we have demonstrated that Mr. Griffith is entitled, because his case was on direct review, to have retroactive application of Batson.

Chief Justice Rehnquist: Thank you, Mr. Aprile.

The case is submitted.

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Griffith v. Kentucky - Oral Argument (No. 85-5731)

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Case:

Griffith v. Kentucky

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85-5731_19861014-argument.mp3

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Transcript:

Argument of Fred Haddad

Chief Justice Rehnquist: We will hear arguments next in No. 85-5731, Willie Davis Brown, AKA Will Brown, Petitioner, versus the United States.

You may begin whenever you are ready, Mr. Haddad.

Mr. Haddad: Thank you, Mr. Chief Justice, and may it please the Court, if I may, the Court has already heard argument somewhat on this issue.

I would like to address the facts momentarily in the case in that I think it may have a bearing on what I would argue in response to what Justice Blackmun asked at the initial opening argument in Griffith.

In this case the defendant, a black man, was charged with a co-defendant, another black man, with violations of the conspiracy narcotics laws, and was put to trial in the United States District Court for the Western District of Oklahoma.

Five black people were called for the jury, three of which were excused for cause by the court, two of whom were excused by the prosecutor peremptorily, and there was an objection made, and the defendants or petitioner sought to... a request of the trial judge for the... and a couple of additional challenges in an effort to seek some black members of the venire that were still available as well as an objection to the prosecutor's employment of his challenges to exclude black people who responded on voir dire in a manner sufficient to indicate that they could be fair in the case.

As it turned out during the second day of jury deliberation counsel were made aware that during a break between the first venire and the second venire the United States Attorney or Assistant United States Attorney, Mr. Richardson, had made a telephone call to the jury clerk asking her the composition of those who would be calling or coming and asking her not to bring any jurors, as he recalled it, or don't get any blacks on the jury, as she recalled it.

A hearing was then had during the... excuse me.

We had a hearing while the jury was deliberating, and at that hearing Mr. Richardson attested to the fact that he took into consideration that the defendants were black and that their lawyer was black, and that their lawyer was a prominent black member of the Oklahoma State Senate, and he intended to strike from the jury panel any person who indicated whether or not they... whether they knew Mr. Porter, who was my co-counsel at the time, and that was... I asked the question, did not that person that you excluded admit that she would be fair, not influenced by Senator Porter and so forth, and the answer was yes.

That brings us, I think, to the question that Justice Blackmun asked regarding the clear break.

I would suggest to the Court that in my review of discrimination cases the only persons who have ever been afforded a presumption of validity on their conduct has been attorneys.

I think the Court offered to prosecutors both of the United States Government and of the state court that they, being lawyers, and being sworn to uphold the Constitution, would not employ their peremptory challenges in a manner that was different that that which was set out in Swain versus Alabama.

That is that any peremptory challenge would be directed to matters related to trial as opposed to race.

And I think that is a distinction in this case that takes it out of the ambit of the rest of the retroactivity cases.

I would note in many of these retroactivity cases the good faith of the persons involved comes to mind, particularly in United States against Peltier or Peltier.

The fact that the law may have not been... may have been overruled and Alameda Sanchez may not have been the proper law, people relied upon this law in good faith.

I think what Batson recognizes is that in Swain versus Alabama the Court recognized, the lawyers, people who are sworn, and I don't mean to be melodramatic, to uphold the Constitution would in fact act in conformance with their oath.

After 20 years or 21 years of the evolution of trials, I think the Court in Batson realized that perhaps this is not the case in certain circumstances.

The Court in Batson just said, if the appearance is there, we are not saying grant a new trial, we are not saying to anyone that you have to indulge in all these acts.

What we are saying is, if the appearance of impropriety is there by articulable reasons offered by the defense counsel which the trial judge as the listener to voir dire can take unto himself, then he can request that the prosecutor offer a neutral basis or a monochromatic basis for the exercise of his challenges.

I think that was a decision that surely ought to have effect to cases pending on direct appeal.

I don't think, it was... granted, it was a break in the rules, it was a clear break more than likely, but I think it was bottomed on a conception that that which should be right would have been done, and I think the facts in the case before the Court in Brown illustrate that at least in times it has not been done.

The arguments in support of retroactivity as in the Harlan approach have been offered to the Court already.

I don't want to repeat them and just unduly talk too much, but they have been set forth, and I think and I would suggest to the Court that the Harlan approach is the approach that ought to be taken as Chief Justice Rehnquist did in Shea, and just draw a bright line and say, cases pending on direct appeal receive the benefit of the case... of the law at the time the case is decided.

Unknown Speaker: The problem with getting the Court to ever adopt the Harlan approach is that we seldom have a case here in which both sides of the thing are involved.

That is, it would take an opinion of the Court, say, a holding in the technical sense that on habeas corpus there is no retroactivity perhaps with minor exceptions; on direct review there is always retroactivity.

But we tend to get our cases, it is either a direct review or a habeas corpus, and so it is hard to get the court to coalesce around a proposition that would apply to both situations.

Mr. Haddad: I understand that, Your Honor.

I would think that, as Justice Harlan said, taking the scope of the great writ, as he called it, it is to determine if a person is lawfully in custody by those factors or those rules in effect at the time conviction became final, with certain limited exceptions.

One would think of matters that go to jurisdiction, double jeopardy or as the Court has applied Gideon versus Wainwright and those cases.

Unknown Speaker: Why would double jeopardy be an exception?

Mr. Haddad: For a writ?

Unknown Speaker: Yes.

Mr. Haddad: Waller versus... Robinson versus Neil held... it wasn't Waller, and I am just trying to give the Court an example.

If a person... I don't think we have that any more after Waller and Ash versus Swenson, but trying to give the Court an idea of what... a response to your question.

Unknown Speaker: But Robinson against Neil was an application of the Stovail against Denno test, not an application of Justice Harlan's test.

Mr. Haddad: Yes, sir.

I agree, but I am just trying to give it as an example of what I am talking about.

When you are talking about--

Unknown Speaker: Well, I think it is a very poor example of what you are talking about, is what I am trying to say.

But you are entitled, obviously, to convince my eight colleagues that you are right.

Mr. Haddad: --It is just that that is the example that I think I could give, where it went to the essence of the truthfinding factor on collateral review or something where the Court has previously held that it was of such a critical nature that it ought to be applied retroactively on collateral review.

Unknown Speaker: Mr. Haddad, may I ask you, do you think a Batson claim and a trial that arises in the future, say someone is tried tomorrow and a Batson claim is made and it is denied on direct review, that that claim could be raised on collateral review?

Mr. Haddad: I would think so.

Yes, sir, I would think it would be a failure to follow the law in existence at the time.

It would be... and I hope, Mr. Chief Justice, this isn't a bad example again, but I would think it would be in the nature of a failure to afford a full and fair hearing under Stone versus Powell and the Fourth Amendment Issue.

Unknown Speaker: No, I am assuming that they had a full and fair hearing in the state system that would satisfy Stone against Powell and that it was appealed but just was denied on the merits, but there was, you know, an arguable basis for the claim.

Under those facts do you think it would be raisable on collateral review?

Mr. Haddad: Yes, sir.

Yes, sir, I do, so that I just say that in conformance and conjunction with... yes, sir?

Unknown Speaker: 0 xxx.

I think you or at least others have cited Stovall.

Do you recall when the Stovall opinion, which was, of course, a collateral case, where retroactivity was involved, we held that the rules should not be made... those were the Wade and Gilbert rules--

Mr. Haddad: Yes, sir.

Unknown Speaker: --should not be made retro.

Mr. Haddad: Yes, sir.

Unknown Speaker: But then we went on to say,

"We also conclude for these purposes no distinction is justified between convictions now final, as in the instant case, and convictions at various stages of trial and direct review. "

"We regard the factors of alliance and burden and the administration of justice as entitled to such overriding significance as to make that distinction unsupportable. "

and then went on to say that it is just too bad for the... that only those whose cases were actually taken had the constitutional question decided in their favor, this on the ground that

"we regard the fact that the parties involved are chance beneficiaries as an insignificant cost for adherence to sound principles of decision-making. "

Do you think that is still law?

Mr. Haddad: Do I still think it is still law?

Unknown Speaker: Do you think what I have read you is still law?

Mr. Haddad: I think the Court has gotten away from that.

I think Justice Harlan, and I hope the Macke decision came afterwards, said that those cases came along because of this Court's many--

Unknown Speaker: 0 xxx.

Mr. Haddad: --I am sorry?

This Court's decisions--

Unknown Speaker: Justice Harlan's view was usually expressed either in dissent or in concurrence.

Mr. Haddad: --I am sorry.

I meant dissenting opinion in Macke or concurring opinion in Macke dissenting and the cases with it noted, I believe, that this Court had taken this almost as a policy approach because of its numerous decisions in the criminal law field, and that the Court was taking certain cases and holding them one way on collateral and one way on direct and then not of benefit to anybody, as in Morrissey versus Brewer, or certain chance beneficiaries, and that is what brought about his decision, I think, or his opinion.

Unknown Speaker: Well, this opinion went on to recognize that inequity arguably results from according the benefit of a new rule to the parties in the case in which it is announced but not to other litigants similarly situated in the trial or appellate process but raise the same issue.

Mr. Haddad: Yes, sir.

Unknown Speaker: Nevertheless what we said there was that there is no retroactivity.

Mr. Haddad: I think Justice Brennan wrote that, too.

Unknown Speaker: Him--

Mr. Haddad: I think Your Honor wrote that, too, as I recall.

Unknown Speaker: --That's right.

Why else do you think he is reading it?

Mr. Haddad: I understand that Justice--

Unknown Speaker: I just wondered.

Is that no longer law?

Mr. Haddad: --I think there has been a break away from that with Johnson and Shea.

Let me say that.

I think there has been a trend away from it with Johnson and Shea.

Unknown Speaker: It would bode ill for your case if the language that Justice Brennan just read to you were controlling in this case in view of our decision last spring in Allen against Hardy.

Mr. Haddad: It certainly would, sir, yes.

I don't deny that.

If I may, if I have any other time left, I would like to reserve it.

Thank you very much.

Unknown Speaker: Thank you, Mr. Haddad.

We will hear next from you, Mr. Bryson.

Argument of William C. Bryson

Mr. Bryson: Thank you.

Mr. Chief Justice, and may it please the Court, I would like to summarize briefly what our position is in this case.

It has been laid out well, I think, by the attorney general from Kentucky, but in essence what it is is simply this, that Batson was a clear break with the past.

That the Johnson case, while holding that ordinarily case new decisions will be given retroactive effect on direct appeal, made an exception for cases that it referred to as clear break cases, and that in Allen against Hardy this Court found that the Stovall against Denno factors cut against full retroactivity for Batson.

We put those three propositions together and we submit that that compels a finding that Batson should not be held retroactive on direct appeal in this case.

Now, Justice Blackmun asked a question, I believe, in the first argument about whether this clear break exception to the Johnson rule should be preserved, whether it has any justification, and that ties in, I think, with the question of what the status of Stovall is with respect to direct appeal cases at this point.

As we read the Court's opinion in Johnson, what the Court was saying was, yes, we are adopting to an extent Justice Harlan's rule that the new decisions would be applied retroactively on direct appeal, but we are not willing to go so far as to overturn settled precedent in this area, particularly with respect to that area of settled precedent in which the Stovall against Denno factors are the most compelling, and that is the definition of the clear break area.

Now, in the clear break area, as this Court recognized in Johnson, that is the very area where the Stovall against Denno factors operate very strongly, particularly the factors of reliance by prosecutors, trial courts, and courts of appeals, and the administration of justice, because in that area, that is the area in which, because decisions are clear breaks from the past, clear breaks from prior precedent, and particularly when they constitute square overrulings of prior precedent, that is the area in which it is the least likely that lower courts and law enforcement officers and prosecutors will have anticipated a change in the law, and as a result that is the area in which you will have the most number of cases which will be affected by the change and in which you will have had reliance, justifiable reliance by people who read the law and attempt to follow it.

So, I think what the Court has done in Johnson is essentially to reach a compromise between Stovall against Denno and Justice Harlan's views as expressed in the number of dissents.

The Court has preserved that area of the Stovall analysis that is the area in which it is the most telling, and has otherwise adopted Justice Harlan's views.

Now, we have argued in the past for a straight application of Stovall against Denno to not only collateral attack but also direct review, but if the Court is not prepared to go back to the Stovall against Denno across the board rationale, then we submit that Johnson--

Unknown Speaker: Well, I gather, Mr. Bryson, you don't think that what I read earlier from Stovall controls this case without more?

Mr. Bryson: --Well, I think in light of Johnson, Your Honor, we would say that it does control this case to the extent that the Court concludes that this is a clear break case.

Now, of course, if the Court concludes that it is not a clear break case, then Stovall under the analysis of Johnson doesn't have any applicability, and the Court would then go to the Harlan rule which would be simply flat-out applicable... retroactivity as applied to direct review.

So the answer is yes, but it is yes because we believe this is a clear break case, and that is a condition precedent for Stovall applying as we read Johnson.

Now, that brings me to the question, is this a clear break case, and there is a lot of argument in the briefs, and there has been argument this morning about whether it is.

We would rely, of course, very heavily on both Johnson, in which a clear break was defined as either a straight overruling or the Court disapproving a well established prior practice, we rely on that; we would also rely on Allen against Hardy, in which the Court specifically said this was an explicit, that was an explicit and substantial break with the past.

Now, I don't, as I think General Richwalsky said before, I don't see any difference between a clear break and an explicit and substantial break.

I cannot imagine that the Court had in mind to draw a line between those two concepts, but in any event between Johnson and Allen against Hardy it is clear to us that this was a sufficiently new rule that it is one that would fall within the Court's characterization of clear break cases.

Now, the petitioner and amicus in this case have provided two proposed answers for the argument that this is a clear break case One, they say, well, yes, it was a break but it was a break with respect to burden of proof question only, not with respect to the underlying standard of conduct, and second, they say, well, it is really no break, or to the extent that it was a break it was a break that was so completely foreshadowed by prior events that no one had the right to rely on it.

Now, as to the first, first, again, going back to Allen against Hardy, the Court in Allen pointed out that the question of whether this was a break with regard to burden of proof or whether this was a break with regard to standards of conduct is of no moment in determining whether it is a clear break case for the simple reason that courts, prosecutors, and appellate courts were relying on the entire rule, not just the standards of conduct that were prescribed in Swain, but also the principles of reviewability in Swain.

That is why in case after case prosecutors declined and trial courts did not require them to make a record as to the reasons for their peremptory strike simply because Swain did not require such a record be kept.

That is the reason that this reliance by the prosecutors in trial courts and appellate courts would be so expensive to overturn, because you would be sending cases back for determination on hearings in case after case for determination of whether the prosecutor had had a particular intention with respect to strikes as to which almost certainly he or she would have no recollection and almost certainly--

Unknown Speaker: Mr. Bryson, could I interrupt you for a minute, because there are two aspects about this case I would like you to comment on.

First, as I remember it, this is a case in which the clerk testified that the prosecutor had requested that as few blacks as possible be put on the venire, and apparently the Court of Appeals accepted that testimony and thought the conduct was reprehensible but it didn't affect the outcome, and so it didn't matter.

And the question I am wondering about is, if you have facts which seem clearer than they are on some records there may have been a deliberate intent to minimize the number of blacks on the jury just for racial reasons alone, is it as clear in this case as it may be in some of the others that the prosecutor was justified in assuming that his or her conduct was entirely proper, and should we not since it is a federal case rather than a state case, do we not have some obligation to consider our supervisory power with respect to the conduct of federal prosecutors in federal trials?

Is it precisely the same issue as in the other case, in other words?

Mr. Bryson: I think the Court could conceivably view this case differently from the typical case, and it is really not just because of the telephone call, as a matter of fact.

There are two features to this case that I think frankly distinguish it from the average case in which... such as Griffith, in which the prosecutor simply says, I don't have to give an explanation, Swain does not require me to give an explanation.

It is not just the telephone call.

It is also that in fact the prosecutor did give an explanation on the record in this case.

Now, there was no finding by the trial court as to whether that explanation was candid or correct, but he said that, yes, I struck two blacks, and the reason I struck them is because the defense lawyer for the co-defendant is a very imposing and impressive lawyer who has in my view a very substantial effect on black jurors.

Now, with respect to the telephone call first, there is no question that the call was completely improper.

It was a deplorable incident, and we are obviously not defending it on the merits.

However, to the extent that anything in mitigation can be said, and I think something can be said, the telephone call, as the prosecutor explained, was intended to find out information about how many blacks were coming, and he did not intend to direct the jury clerk to strike sub silentio the blacks who were on that incoming panel.

Now, she remembered the conversation as giving her the impression that he was asking her to strike them.

His impression of what he said was, we are looking for a jury which does not have many blacks on it, that is to say, I am hoping not to have many blacks on this jury, not, please, Ms. Jury Clerk, take those black jurors off this jury.

Now, in other words, my point is that however unwise his conduct in making the call, It did not reflect an intent to skew the jury in an improper way.

At most it reflects something that he admitted later, which was that in this particular case he was looking for a jury that had as few black members as possible.

That brings me to the second point.

What is the legitimacy of his having struck jurors on the ground that he claimed that he did?

Well, that goes right back to Swain, and what Swain said.

Swain in fact had a passage which it seems to me is very pertinent here, and that is that a place in which Swain quoted the prosecutor as having said that he struck differently depending on the race of the defendant and the race of the victim, and the Court said, well, that is all right because that shows that he was not striking blacks in every case.

And in this case this prosecutor indicated on the record he did not strike blacks in every case.

In fact, he had no objection to having blacks on his jury.

But in this particular case, with this particular lawyer who in his view had such an impressive... had such a way of speaking effectively to black members of the jury, he feared, having black members on the jury, he feared frankly that he was going to be beaten.

Now, in answer to your question, I think that the supervisory power would not be appropriate here principally because the jury clerk, as she testified, was not in any way affected by the telephone call.

It didn't affect her conduct, and the telephone call was, while improper, was not designed to have an effect on her conduct.

The most it does is, it reflects that which he had already indicated he was going to do, which is to strike the black jurors, and the second part of the answer is that under Swain we submit that however wrong the Court may now think that to have been, it was permissible under Swain, as we read Swain.

Unknown Speaker: Just to add on other thought, do you think that the federal government should be judged by precisely the same standards as states when evaluating the significance of reliance on Swain and the prior rule?

Mr. Bryson: --Well, in Williams this Court said precisely that.

The Williams case, one of the series of retroactivity cases, the Court said that there is no basis for drawing a line between the federal government and the state governments.

Now, that is, I think, only a partial answer to your question because I think you are asking more about whether the federal government has a greater burden to anticipate a change in an equal protection subject such as this one.

I think there were a number of offices, frankly, in which Swain was in a sense anticipated... I mean the overruling of Swain was anticipated because I think prosecutors stopped using strikes on blacks for race related reasons but--

Unknown Speaker: I don't understand that.

Why is this?

Federal officers are smarter than state officers?

Mr. Bryson: --No, I am just--

Unknown Speaker: They take a different oath to support the Federal Constitution?

Mr. Bryson: --Not at all.

Not at all.

Unknown Speaker: Well, then, what is the basis for treating the one different from the other?

Mr. Bryson: I don't think--

Unknown Speaker: I mean, if it was apparent to Federal prosecutors, it should have been apparent to state prosecutors.

Mr. Bryson: --I don't think there is any basis for treating them differently.

I am simply saying that the number of cases may be smaller.

There may be a lesser effect on the administration of justice, in part because there may have been... it is conceivable that there may have been more anticipation of the overruling of Swain.

On the other hand, unlike in the state system, there was no Federal court at the time this case was tried, no Federal court at all which had questioned the validity of Swain, continuing validity of Swain.

The two Court of Appeals decisions which came down after this case was tried in this area did question the validity of Swain in a sense, but those were after this case was tried.

There were some state court cases, I think, four of them.

Four states had held that Swain would not be applied under state law.

I see no real distinction between the two except, one could argue, in the extent that there is a smaller number of Federal cases for a variety of reasons.

Now, the second question is one which I have already touched on, which is the degree to which the overruling of Swain was foreshadowed, and therefore any reliance on Swain was unjustified.

First of all, as I have noted, there was very little contrary law prior to Batson.

This Court had in the dissents from denial in the McCray case and two subsequent cases had indicated that Swain might be subject to reconsideration, but other than that there were only the two Court of Appeals cases going off on different grounds, on Sixth Amendment grounds, and a handful of state cases going off principally on state law grounds.

But even if... I would add this case is not like a case such as the Brown case, the Brown against Louisiana, which held the Burch decision retroactive, in which there was no case out there to be overruled, and in which this Court's own decisions, prior decisions had given a clear indication that the Burch decision was on the way.

This case is one in which there would have to be an overruling of Swain and in which there were no prior decisions of this Court that gave any indication that an overruling of Swain was coming.

But beyond that a mere foreshadowing, this Court has held, is not enough to undercut reliance or reader a case not a clear break with the past.

In the Desist case, this Court dealt with the question of whether the Katz overruling of Olmstead should be given retroactive effect, and the Court said no even though there has probably been no case in the... no constitutional case in the history of this Court in which the overruling of the prior decision was as clearly foreshadowed as it was in the case of Olmstead.

Similarly, in the Williams case, the same result.

This Court said that Chimell should not be applied retroactively even though Chimell was clearly foreshadowed by developments in this Court and in the lower courts, and perhaps most pointedly, the case which we think supports us most directly... excuse me... is the Daniels case, which held that Taylor against Louisiana should not be applied retroactively.

In Taylor the Court had held that the exclusion of women from juries was a violation of the Sixth Amendment.

Nonetheless, even though the Court said the judgment may appear a foregone conclusion from the pattern of this Court's cases over the past 30 years, and even though the unmistakable import of this Court's opinions since 1940 suggested the result that the Court was about to reach in Taylor, nonetheless the Court said the Taylor opinion would not be applied retroactively either on direct review or on collateral attack because it was necessary to reverse a prior decision which had approved the practice.

At minimum, at worst this case falls within the pattern of Taylor, and we submit that it in fact is a such less extreme case than Taylor, and therefore calls for the application of the clear break test.

Now, the Court has already dealt with, in Allen against Hardy, the question of the application of the Stovall factors to this case, and I will not go through them at length except to point out very briefly that as far as the most important of the Stovall factors, which is the effect on the truthfinding process, the Court acknowledged in Allen that, yes, the Batson case does have some effect on the truthfinding process, some effect, but that it serves multiple purposes, and it is not like those cases in which the new rule has had a direct and emphatic effect on the truthfinding process.

The language that the Court has used in this area it seems to me is very instructive.

The Court has said, for example, that a case affects truthfinding if there is a clear danger of convicting the innocent, a serious risk that guilt or innocence was not reliably determined.

It is likely that many trial results are factually inaccurate.

That's the kind of language that is simply inapplicable here because in this cases, while the new rule serves important and laudable purposes of reducing discrimination and increasing the confidence of the public in the administration of justice, it does not have a substantial impact on the truthfinding process because what is going on when you say that prosecutors cannot strike blacks on the ground of race is that... not that you are allowing on to a jury someone who is biased, as is the case, for example, in a case such as Turner against Murray, but it it simply saying that you are removing from the jury someone who is unbiased, the black juror, and you are replacing that juror with someone else who is presumably also unbiased.

Now, it may be entirely an offensive practice.

It may be... it has been declared by this Court to be an illegal practice, but what it does not do is to substantially impact on the truthfinding process because of the nature of the replacement that occurs.

Now, as to reliance.

I have already spoken at some length on the reliance factor, and I would only point out that to the extent that the... to the extent that the courts and commentators have construed Swain on the question of whether it constituted a change in burden of proof or whether it constituted a change in the nature of the rule affecting substantive conduct.

Unknown Speaker: You mean Batson?

Mr. Bryson: I am sorry.

What I meant was that--

Unknown Speaker: Whether Batson constituted a change?

Mr. Bryson: --Yes, whether Batson constituted a change in what Swain had said.

That's right.

The courts and commentators talking about Swain have repeatedly held and repeatedly said that the Swain rule permitted the use of race in making peremptory challenges.

The petitioners and the amici say that, well, no, Swain didn't really permit that, but regardless of whether Swain permitted it or not, virtually every commentator and virtually every Court that has analyzed Swain has come to that conclusion, and therefore even if the reliance by the Courts and by the prosecutors and by the appellate courts has been in retrospect incorrect, it was certainly not unreasonable.

Based on that reasonable reliance, the lack of effect on the truthfinding function and the continuing effect of a change in the administration of justice we suggest that the Court should follow the Johnson case and hold that this is a clear break case which should not be given retroactive effect on direct appeal.

Thank you.

Rebuttal of Fred Haddad

Chief Justice Rehnquist: Thank you, Mr. Bryson.

Mr. Haddad, do you have something further?

You have 17 minutes left.

Mr. Haddad: I don't think so, Your Honor.

Chief Justice Rehnquist: The case is submitted.

Unknown Speaker: The Honorable Court is now adjourned until tomorrow at 10:00.

Solem v. Stumes - Oral Argument

Thu, 30 Aug 2012 22:13:56 +0000

Case:

Solem v. Stumes

Media File:

81-2149_19831128-argument

Related Transcript:

81-2149_19831128-argument

Transcript:

ORAL ARGUMENT OF MARK V. MEIERHENRY, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice Warren E. Burger: We'll hear arugments next in Solem against Stumes.

Mr. Attorney General.

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

This case comes to the Court from the Eighth Circuit Court of Appeals.

The Eighth Circuit Court of Appeals, under the case of Edward versus Arizona, in a case collaterally attacking the conviction of Mr. Stumes, reversed the District Court.

The question presented to this Court is whether Edward versus Arizona will be applied retroactively to the case of Mr. Stumes when that attack was made by a habeas corpus relief.

The facts essentially on this case is in 1973 Norman Stumes killed a young lady in Sioux Falls, South Dakota.

This occurred on September 17, 1973.

Ten days later he was arrested in Green Bay, Wisconsin, on other charges that had been pending, not on what were originally filed as murder charges, but on perjury charges and other charges at that time.

During the time that the authorities were seeking him for questioning concerning the death of Miss Hoff, his mother hired an attorney for him.

And, his attorney had a conversation with the law enforcement officers in Sioux Falls, South Dakota, and that lawyer advised the law enforcement officers that if he got a hold of Mr. Stumes first, he would tell him to turn himself in for questioning.

On the other hand, if the authorities found him first and arrested him first, that they would not question him until the attorney, Mr. Jorgensen, was notified, and that was done.

Mr. Jorgensen was notified some time on the 27th of October 1973... or the 27th of September 1973 that Mr. Stumes had been arrested over in Green Bay.

Mr. Jorgensen then, either on the 28th or the 29th of September in 1973, called Norman Stumes and told him not to talk to anybody until he was brought back to South Dakota, to exercise his right to speak with no one.

Upon being arrested by the Green Bay authorities, he was given his Miranda rights which were required in 1973 and he made no statements at that time.

Later on two police officers, as well as a deputy sheriff from South Dakota, went to Green Bay to transport him back and they arrived there on October 1st.

They met with Mr. Stumes in Wisconsin, Brown County, Wisconsin jail at which time Mr. Stumes gave them voluntary permission to search where he had been arrested, the place where he had been arrested and his automobile.

He was also given Miranda warnings at that time by the South Dakota authorities and a conversation ensued for about an hour and 45 minutes of which nothing incriminating came out of that.

Later that afternoon there was another conversation between the Defendant and the authorities.

He was not given his Miranda rights.

The record is clear.

And, the only, as found by the District Court, the only true incriminating thing is that he admitted that he had intercourse with the dead girl on the day in question and he also, in answer to a question posed to him, was this death accidental, he answered that it was.

Of course, he was going to be brought back to South Dakota on these other charges, not the murder charges, and so on October 2nd, they proceeded to get an in automobile and drive the 500 miles from Green Bay, Wisconsin, back to Sioux Falls, South Dakota.

When they got in the car, he was once again given his Miranda warnings.

And, a conversation about the case, about the murder part of the case, took place for 20 or 30 minutes.

They left about 9:00 in the morning from Green Bay, drove in a westerly direction towards Sioux Falls, South Dakota, arrived back in Sioux Falls, South Dakota about 6:45 in the evening.

But, about 90 miles from Sioux Falls, Norman Stumes, and I will take his words, said... Norman Stumes, in testifying at various hearings, said,

"I had a little conflict with my emotions. "

and he began to sob and he made the statement to the effect, I don't understand why anybody would want to kill a young girl like Joyce.

And, Detective Green, an officer of the State of South Dakota, said, Norman, it probably... Why don't you get it off your chest, at which time he made admissions that implicated him and were used against him at his trial.

And, Stumes also said at that time, according to Detective Green, that I have been wanting to tell somebody about this but I didn't know how to do it or who to talk to.

This conversation took place approximately 90 miles from Sioux Falls, and although the record is not clear, about 5:00 in the afternoon.

Throughout that time, from 9:00 to 9:30, throughout the day, Norman Stumes himself says he was not interrogated, that there was general conversation about the Green Bay Packers, automobile racing, and other such things.

Just prior to his starting to sob and make these statements... he describes the situation, the Defendant does, like this: That there had been no conversation in the car for 10 or 15 minutes.

Officer Skadsen, who was sitting in the front seat of this automobile, was almost alseep, he was nodding off.

The other gentleman was driving.

Detective Green was looking out of the window somewhat bored.

That is when he had his conflict with his emotions, began with the statement, why would anyone want to kill Joyce, began to sob.

The officer said, Norman, get it off your chest, at which time he made the statement.

Once they returned back to South Dakota, he was placed in the jail.

The officers broke off all contact with him.

They went to another part.

He sent word out through a jailer, called Detective Skadsen back into the jail area, and said to Officer Skadsen, please tell them that I am not a vicious killer, that I didn't mean to do it.

The Eighth Circuit held Edwards to be retroactive and held that in--

Unidentified Justice: What about the rest of the facts?

He sent word out and then what happened?

Mark V. Meierhenry: --Officer Skadsen came back into the jail area.

Norman Stumes came out to him--

Unidentified Justice: What did he say?

Did he want to talk or what, the officer?

Mark V. Meierhenry: --The officer said basically what did you want, Norman, or... I can't recall the exact words, Justice, but words to that effect.

Unidentified Justice: And then what happened?

Mark V. Meierhenry: He said to Skadsen, Officer Skadsen, he said tell them that I am not a vicious killer.

Unidentified Justice: Then what happened?

Mark V. Meierhenry: Then--

Unidentified Justice: Were there any other admissions at that time?

Mark V. Meierhenry: --No, other than he was not a vicious killer and he wanted Officer Skadsen to tell others that he was not a vicious killer.

Unidentified Justice: What statements were admitted at his trial, the ones in the car--

Mark V. Meierhenry: Yes.

Unidentified Justice: --And anything prior to that?

Mark V. Meierhenry: Yes.

Unidentified Justice: Any of his statements prior to that?

Mark V. Meierhenry: Well, a description of his statements prior to that.

The only truly incriminating statements took place in the automobile and also later.

The threshold--

Unidentified Justice: Later when?

Mark V. Meierhenry: --At the jail, the one we just alluded to.

Unidentified Justice: Is that the only one?

Mark V. Meierhenry: The only one from the prior day of October 1st in the afternoon was he admitted that he had intercourse and when asked the question, what kind of death was this, was it accidental?

He said it was accidental.

That was admitted as well as the conversation in general that I have alluded to in the automobile at approximately 5:00, based on driving times in the afternoon, and then the one back at the jail after he had been lodged into jail on these other charges.

Unidentified Justice: What is your defense of the statements made the day before?

Mark V. Meierhenry: Well, first of all, it is two parts.

First of all, this Court will should agree, I guess you would say, to apply the retroactive effect.

Unidentified Justice: Right.

Mark V. Meierhenry: I don't think we get to that unless this Court decides to apply Edwards retroactively, which, of course, we would say this is like Miranda and the many other cases this Court has not applied retroactively, shouldn't be applied retroactively, because the Court has indicated to those of us whose duty it is to educate the law enforcement officers... At least in my state it falls upon the Attorney General, and when this Court makes a rule like Edwards, a new rule, one that we were not used to, certain things go into operation.

As the Attorney General, my duty is to train all the law enforcement officers as well as to supervise prosecutors.

So, when this Court... Within days after this Court makes a new rule like Edwards, we immediately send out in police parlance, you might say, what can occur and what cannot occur throughout our state and that is done on almost an emergency basis, because there is no reason to start a case and not follow the proper procedures.

So, with that in mind, we have to decide whether this case should be retroactively applied as the Eighth Circuit did, and, of course, as indicated in the Palteire case, this is not an appropriate type of case for retroactive effect.

It does not assist in any way the truth-finding portion of the trial.

As a matter of fact, if we follow what the Eighth Circuit has said, and we go back and retry Norman Stumes, the truthful statements that he made to law enforcement officers will be suppressed by the exclusionary rule, whereas, those matters found to be untruthful, his version of what happened that day, and his attempt, testifying under oath before a jury to escape the culpability that he had admitted to prior, will be allowed in.

In other words, we will have decided a case, apply the exclusionary rule retroactively, take the truth out of the case, and leave the Defendant--

Unidentified Justice: But, if he takes the stand and testifies the way he did, wouldn't some of the statements that might be excluded initially under Miranda and Edwards be admissible on cross examination?

Mark V. Meierhenry: --Yes, Justice, but I can't imagine a competent defense attorney would ever put him on the stand.

I mean, from a practical viewpoint, it wouldn't occur.

Unidentified Justice: But then his statements in the new trial, his testimony wouldn't be presented any more than the adverse testimony.

Mark V. Meierhenry: That is right.

And, of course, if you look at this case, and I will not make any admissions as to what would occur later except that we are obviously committed to reprosecute if the Eighth Circuit is confirmed, but this is ten years ago.

Officer Green is dead.

There is obviously a different approach as to the evidence we will have to present at the second trial from the first.

The removing of his admissions and confessions in most of these types of cases where the admission or confession occurred early on effectively denies the public the right to have a trial on this issue.

First of all, it was not the law in 1973, when Norman Stumes went to trial, and when the Circuit Judge of our state first ruled on his admissibility or the Supreme Court of the state.

So having had that direct part of the case over, we do not have at this time the resources to keep ten years of evidence for every criminal case tried in the State of South Dakota, which the Eighth Circuit seems to be saying to us that we must do.

We must wait in case there is a retroactive application of a case like Edwards.

Are we going to build mammoth evidence lockers in our state to keep the evidence of each and every case with the chance that it could be applied retroactively, because the state most certainly does not want Norman Stumes just turned free.

We would have to make an attempt to retry him for the vicious killing that he really has never made any claim throughout the appeal that he didn't do.

It isn't a question of whether this man killed a young girl for no reason in Sioux Falls, South Dakota.

The question is whether we make a retroactive application of the exclusionary rule which this Court has said in different decisions is a rule to prevent, to deter those of us in law enforcement in the future, but in this case it will most certainly not do that.

The day Edwards was decided and we got word in the State of South Dakota, law enforcement changed.

We did it on an emergency basis, because the Edwards case--

Unidentified Justice: May I ask, would you tell me exactly what you did differently after Edwards than what you thought was required before?

Mark V. Meierhenry: --Well, the way we put it out to our prosecutors and our law enforcement officers is in the context that it basically added another element of proof to any case where someone confesses or makes admissions.

And, I know... I am going to answer your question not according to what the Court has described it, but the way we described it to the cop on the street that has to do this the day after your decision in Edwards.

We said it is like another element of proof.

It has totally changed the way we did it under Miranda.

Therefore, it is up to us to prove that the individual, once he has made a claim to remain silent or for a lawyer, we have to be able to prove that not only did he waive that right, that he did so willingly and he came to you.

So, what we told our officers is that is a very important... We can't even get to trial or we will never be able to use it unless you can prove that it was a knowing, willing situation.

Unidentified Justice: What did you tell your officers before Edwards when a person being interrogated asked for a lawyer?

What were the outstanding orders to the police at that time?

Mark V. Meierhenry: We told them, just as the District Court Judge, Judge Nichol found in this case, to scrupulously observe, as was done in this case, that if he wants to talk to a lawyer, you cease questioning and give him an opportunity to do so.

And, on two occasions in this very case, that was done.

Unidentified Justice: Did you have a rule on whether you could start reinterrogation after any specific--

Mark V. Meierhenry: The State of South Dakota did not.

We were not aware that this Court or any other federal court said that you can never talk to a criminal defendant again.

Unidentified Justice: --Well, it says... I mean, the passage of Miranda they quote, until they had consulted with a lawyer.

Mark V. Meierhenry: Well, first--

Unidentified Justice: Wasn't that plain in Miranda, that you weren't suppose to talk to him a second time until he talked to a lawyer in the interval?

Mark V. Meierhenry: --Well, I think that was his right to exercise.

He had to be given the opportunity to exercise that right.

But, again--

Unidentified Justice: Was it your view that the police could just wait a couple of hours while he had an opportunity to exercise the right and then just go back in?

Mark V. Meierhenry: --I think they could go back and inquire if he wished to talk.

Unidentified Justice: The could initiate the second conversation?

Mark V. Meierhenry: They could--

Unidentified Justice: Even though they knew he hadn't consulted a lawyer.

Mark V. Meierhenry: --Well, if he willingly did so.

Miranda appeared to indicate to the average policeman that those rights are to be scrupulously observed.

And, if the individual says I want to talk to my lawyer... Let's take our case.

He freely talked to the authorities.

So, it isn't a question... He talked to them and at the point he said, when he was asked if he would take a polygraph, because others had taken a polygraph, he had made no admissions at this point.

He said I think I want to talk to Steve before I do that.

Steve, referring to Steve Jergensen, his lawyer back in Sioux Falls, at which time the questioning stopped.

Now, they knew he had talked to him on the telephone.

He was probably never prevented, although the record would not reflect that, from making a telephone call.

Unidentified Justice: And you are telling me it was the policy of your office, once that is done, you can go back in and question him again any time you want to?

Mark V. Meierhenry: It is no longer.

Unidentified Justice: Was it before Edwards?

Mark V. Meierhenry: Well, it wasn't my office, but the policy was... I was a defense lawyer at that time... that if he was given his Miranda warnings, he knew them, he understood them, and he chose to speak, he could do that.

He said, I don't want to talk any more--

Unidentified Justice: So, the request for a lawyer did not deter the prosecutor or the police from reinterrogating whenever they decided to by just giving the second set of warnings.

That is the way you read Miranda.

I mean, your office read Miranda.

Mark V. Meierhenry: --At that time, when Stumes was there, I was defending Stumes, not prosecuting him.

I can't speak what the rules were prior to 1978.

What we are saying is--

Unidentified Justice: But your whole case depends on there having been a change in the rules and you say you don't know what the rules were before.

Mark V. Meierhenry: --No, I am not saying I don't know what the rules were before.

I am saying I don't know what the Attorney General of the state had decreed.

I know what the law was and the law allowed authorities to not reinterrogate, but to go back and question whether he wished to talk some more.

This was nothing like in Edwards where he was told he had to talk.

You have in this case--

Unidentified Justice: Will you tell me what in Miranda says you can go back over and over again?

Mark V. Meierhenry: --I don't think Miranda teaches that, but Miranda--

Unidentified Justice: I thought you just said that.

Mark V. Meierhenry: --Miranda teaches that... When you say go back over and over, there is the illusion that there is an oppressiveness about this whole conversation and I would submit from the standpoint of every state in the union that if an individual says he doesn't want to talk, he should not be pressured into talking.

That does not stop the authorities from going in an seeing if he now wishes to discuss this matter, because--

Unidentified Justice: Over and over again.

Mark V. Meierhenry: --Well, again, it is a matter of degree.

As you looked at in some of the progency of Miranda.

Unidentified Justice: Why did they drive him instead of flying him from town to town?

Did they drive him for the purpose of talking to him?

Mark V. Meierhenry: No.

I think I would have to explain to you about South Dakota.

First of all, we are one of the few--

Unidentified Justice: Because of airline service?

Mark V. Meierhenry: --Well, it does, but to transport a prisoner today on commercial airlines is very difficult.

It is not done very often, number one.

It wasn't done in '73.

You can't wear a gun on an airliner, you can't use handcuffs on an airliner, on and on and on.

So, the normal way of doing things in the midwest is to drive and get them.

Secondly, that there is cost.

That would be changed today because we have purchased our own airplane, but it was the normal course of transportation, not only in South Dakota, but throughout the midwest.

To drive over to Green Bay, which is only 500 miles... In South Dakota, we go 170 miles to go to District Court.

It is not even unusual.

Unidentified Justice: Or lunch.

Mark V. Meierhenry: Or to lunch, yes.

[Laughter]

There are cases that we have tried and we don't even have a restaurant in the town we have tried the case in.

Unidentified Justice: It is still a ten-hour drive.

Mark V. Meierhenry: Yes.

But, it is not unusual.

In fact, until the--

Unidentified Justice: I am not talking about unusual.

I am just talking about to take a lot of time when a man is just constantly telling him about his Miranda rights and all, you know.

Mark V. Meierhenry: --Well, I think if you look at the facts of this case, and I think Judge Nichol, who is a good jurist in our state, he found that that is not unusual.

First of all, they talked about the Green Bay Packers which has nothing to do with crime.

They talked about racing.

This is normal to spend great hours of time in automobiles where we come from.

It is not unusual at all.

And, besides that, you are talking about an individual here that willingly talked at every stage which Miranda never stopped us from listening to people who wanted to tell us they killed others.

Unidentified Justice: Well, why did you keep giving him his Miranda warnings?

Mark V. Meierhenry: Because that was--

Unidentified Justice: Wait a minute.

You said he just continued to talk on and on, right?

Mark V. Meierhenry: --Yes.

Unidentified Justice: Well, why give him Miranda warnings over and over again?

Mark V. Meierhenry: I think out of an abundance of caution.

If you go back through the records of state court trials in South Dakota, you will find people that are simply witnesses, police officers given the Miranda warnings because they don't want to make a mistake.

They don't want to go too far.

They don't want to arrest a person, convict them, and then at a later date have him let go on appeal because of their mistake, because they didn't give a Miranda warning when they should, because they didn't figure out who initiated it, which is the new Edwards rule, which, to us, is absolutely new, not an extension of Miranda, adds an element of proof.

If we are to sustain a conviction, we must prove that if he confesses as Stumes did here.

There is no question about this man's guilt.

It is a question of procedure of retroactive application of a rule.

And, when a case like Edwards comes down, I have learned as Attorney General, we must immediately put it into effect, otherwise we will be right back here or my predecessor will, eight or ten years, not arguing about the guilt, not arguing about the trial being fair, arguing about who initiated the statements that lead to the confession.

We think that this case is just like... not just like, very similar to Oregon versus Bradshaw in the sense that in that case a majority of this Court held that first we have to see who initiated the conversation and then, secondly, we have to show by a totality of the circumstances that it was a willing and knowing waiver.

In this case, the Defendant himself says I wasn't being interrogated, there was just some conversation.

Then he said, and this was immediately... during the conversation that is so crucial, he said I had to tell somebody, I had to get it out, and I wanted to talk.

And, I see nothing in the Constitution that prevents an individual from confessing to a law enforcement officer.

That is what happened here.

And, as the law was at that time, under Miranda... Judge Nichol ruled under Miranda all of this was proper, all of this was admissible.

The only thing that the Eighth Circuit, and I think it is important to note the times, Judge Nichol refers to the oral argument reported in Law Week of the Edwards case, but it was decided after Judge Nichol made his ruling at the District Court level and obviously the Eighth Circuit used it in making their decision.

But, the Eighth Circuit, in applying the retroactivity, never had a discussion of how in this case it would ever help the truth-finding process to make it retroactive.

Miranda itself was not retroactive.

How does it help the truth-finding process to eliminate truthful statements from the trial?

It is the same argument we made to this Court, South Dakota did in Nebel.

How does it ever help the truth-finding process to retroactively exclude the truth?

Now, if we... I will assume for my argument that we agree with the exclusionary rule as authority in South Dakota.

Once the rule of Edwards came into effect May 18, 1981, of course, we must scrupulously follow it, as we followed Miranda in 1973 in Mr. Stumes' case, because if we have the right person, if the jury finds him guilty, we want it to be upheld.

We don't want to lose because of ignorance or misguided statements taken from other people or--

Unidentified Justice: I notice that you don't say Innis against Rhode Island.

You may recall that case.

There the officers sitting in the front seat of the car engaged in a conversation which, although not directed at the accused, clearly prompted him to tell them where the gun and other incriminating evidence was to be found.

Mark V. Meierhenry: --I have not referred to that Innis case or others because of the one question from the Court already, the assumption that these long drives in automobiles are somehow set up.

You know, either to be the Christian Burial Speech or the Innis case where some little girl would be injured by the shotgun.

Here there was no such statement.

There was quiet.

We have a nodding-off police officer, one looking out the window, and the other one driving.

Unidentified Justice: In other words, you are saying this conduct of the police here is acceptable under Innis?

Mark V. Meierhenry: I most certainly think so.

To refrain... When they left Green Bay, Wisconsin, there was testimony about the death of Joyce Hoff.

After that, it became an automobile trip of transporting a prisoner, proper, normal, usual under all of our practices.

They stopped for lunch, they stopped for gasoline, and so forth along the way.

It was only as the car approached Sioux Falls, some 60 to 90 miles away, that he blurted out or he began to blurt out what had occurred.

He started sobbing out of the blue, no conversation, according to the Defendant himself for 10 or 15 minutes.

He said, I don't know why anyone would want to kill Joyce Hoff, and started to make the statements.

The officer said, why don't you get it off your chest?

And, he then proceeded to do so.

His next statement was I have been wanting to tell somebody about this.

That is a knowing waiver.

Later on Detective Green said, Norman, we are going to want a written statement when you get back and your lawyer probably won't let you give it.

And, he says, in effect, I don't give a damn, I will talk to anybody I want to.

He was aware of his rights.

He was aware of his Miranda warnings.

And, under the facts, should you hold this to be retroactive, which we most certainly don't think is a proper case at all for retroactivity, even under the facts, the Eighth Circuit was incorrect in holding that he did not knowingly and voluntarily waive his right to have an attorney present.

Unidentified Justice: Well, Mr. Attorney General, do you challenge any part of the Court of Appeals' version of the facts?

Mark V. Meierhenry: Yes, we do.

Unidentified Justice: Well, do you expect us to... Why shouldn't we accept those?

Mark V. Meierhenry: Well, I don't know if it is proper for me to argue.

That was one of our questions on our Writ of Cert. It was not granted.

But--

Unidentified Justice: Well, if that--

Mark V. Meierhenry: --I think that the District Court is the proper place to find the facts.

Unidentified Justice: --Because you say... In your version here, you say after they got in the car nothing really happened relative to the murder until he started sobbing and yet your opposition says that the Respondent was advised of his Miranda rights and questioning began almost immediately.

The purpose of the question was to elicit further incriminating statements from Respondent.

Is that false?

Mark V. Meierhenry: If that is your understanding, I mistated it.

I said after he was put in the car he was questioned for 20 or 30 minutes.

Then the rest--

Unidentified Justice: Wasn't the questioning aimed at eliciting incriminating statements?

Mark V. Meierhenry: --Well, it went over the same subject matters that they had discussed the prior day and he was given his Miranda warnings.

Unidentified Justice: But, he made no incriminating statements during that 20 minutes?

Mark V. Meierhenry: No, none greater than he had the prior afternoon when he admitted to having intercourse with the dead girl and that the death was accidental.

Unidentified Justice: That he was present.

Mark V. Meierhenry: That he was present, yes, which is obviously an incriminating element.

I have tried to give you--

Unidentified Justice: Well, suppose the statements the day before weren't admissible.

Were these statements made in the car admitted in evidence also?

Mark V. Meierhenry: --Yes.

Unidentified Justice: They were, during this 20 minutes?

Mark V. Meierhenry: Yes.

And, the District Court found that there was a knowing, voluntary waiver and the District Court put out a full factor, which is repeated in the Eighth Circuit's decision.

This was an experienced criminal.

He knew what he was doing.

He knew fully well what he was doing.

And, I say in many cases they know what appellate courts will be looking for in the way they answer questions.

We would urge this Court... And have a few moments for rebuttal... urge this Court to reverse the Eighth Circuit and simply affirm Judge Nichol's District Court appeal or District Court case in effect.

Chief Justice Warren E. Burger: Mr. McGreevy?

ORAL ARGUMENT OF TIMOTHY J. MC GREEVY, ESQ. ON BEHALF OF THE RESPONDENT

Timothy J. Mc Greevy: Mr. Chief Justice, and may it please the Court:

I would like to start out, first of all, spending a few minutes going over the facts.

I think that in some respects the facts have not been stated as I would like to have them stated at this point.

I think it is important to bear in mind that while this case originated in 1973, the Miranda decision of this Court was, of course, handed down seven years, a full seven years prior to the facts that give rise to this case.

And, I think that we need to bear in mind that while the ten years and two months that Mr. Stumes has been in prison is a long time, the 17 years since Miranda is even longer.

We have a situation in this case where on September 17, 1973, the body of the victim is found.

My client, Norman Stumes, is located in Green Bay, Wisconsin, ten days later.

So, it is not a situation where a suspect is found immediately following an alleged crime and immediately confesses, thereby making further independent investigation by the authorities seem pointless.

There was a period of time.

The fact of the matter is that by the time these detectives got to Green Bay to question and transport Norm Stumes, they already knew they had a murder case.

They had a pathologist who indicated that the cause of death and the other circumstances of death were such as to make it a homicide case.

Unidentified Justice: Well, they knew they had a murder case as soon as they found the body, didn't they?

Timothy J. Mc Greevy: Well, I suppose one could say, Mr. Chief Justice, that just by looking at the body you couldn't necessarily tell that it was a felonious or a criminal act.

But, by the time--

Unidentified Justice: Perhaps I couldn't, but a physician could and did, did he not?

Timothy J. Mc Greevy: --That is correct.

Unidentified Justice: So, I don't get the point of this ten days that you are talking about.

Timothy J. Mc Greevy: My point is that during the course of the ten days the authorities took hair samples from the victim, from the body of the victim, and from the apartment, from the shower of the apartment, from other areas of the apartment.

They attempted to take, I believe, fingerprints.

They took blood samples from the body of the victim.

So they did a lot of things to attempt to establish their case and to put their case together.

My point then was that by the time they went to Green Bay they had a prime suspect and that appears in the record, I believe, quite clearly.

They also knew, of course, that Norm's mother... Yes, sir.

Unidentified Justice: Well, you lose me.

The point is, of course, they wouldn't go five or six hundred miles if they didn't think they were going to fetch a suspect.

Timothy J. Mc Greevy: Well, I understood the Attorney General to argue that in cases where you have a confession that is secured very quickly, and I believe he inferred that occurred here, the police, in effect, have a disincentive to put together a case that is based on other than a confession.

I was pointing out that that, I don't think, is the situation here.

Unidentified Justice: Do you contend that the statements made when they were 60 to 90 miles away from Sioux Falls, as it was described and is described in the record, that he became emotional and said he wanted to get it out, do you challenge that?

Timothy J. Mc Greevy: Do I challenge the admissibility of those statements?

Unidentified Justice: Yes.

Do you challenge that it occurred first?

Timothy J. Mc Greevy: I must say that Mr. Stumes at trial testified that it never happened, that that is part of the record made at the trial.

For the purposes of this appeal and for the purposes of the session here today, I think we have to assume the allegations of the police to have been true.

It is--

Unidentified Justice: The jury verdict would suggest that they rejected his testimony and believed the officers, does it not?

Timothy J. Mc Greevy: --I would say that that is correct.

I think that before we get to that conversation in the car, Mr. Chief Justice, I think we need to back up to the first session of interrogation.

That is the one that took place from around 9:30 in the morning to about 11:00 in the morning in the jail in Green Bay, Wisconsin.

That interrogation was conducted primarily by a single officer, Green, Detective Green, as Mr. Meierhenry has indicated is now deceased.

That interrogation was preceded by full explanation of Miranda rights.

During that interrogation, Norm indicated that, yes, he knew the victim, but, no, he had not been to the victim's residence, he had not been in the victim's bedroom, he had not had intercourse with the victim.

Towards the end of that session, Detective Green indicates that he wants to know whether Norm is willing to take a polygraph to clear himself as so many others had done.

Norm indicated that he needed to talk to Steve, that he needed to talk to Steve before he answered that question, Steve being the attorney that--

Unidentified Justice: This particular question about the polygraph?

Timothy J. Mc Greevy: --It was broader than that in the record.

Unidentified Justice: Well, that isn't the way you stated it and it isn't the way the Court of Appeals put it nor the District Court.

He just wanted to talk to a lawyer about that question about a polygraph.

Timothy J. Mc Greevy: I believe in my brief in the citations to the transcript, I believe I refer to the fact that it was a broader request than merely in response to the polygraph question.

Unidentified Justice: On what do you base that?

Timothy J. Mc Greevy: Pardon me?

Unidentified Justice: On what do you base that statement that it was a broader question than about the polygraph?

Timothy J. Mc Greevy: I believe I base it on a transcript reference and I need to check that right now.

Unidentified Justice: What did the District Court find?

Timothy J. Mc Greevy: I believe the District--

Unidentified Justice: The Court of Appeals purported to rely on the District Court's findings for its statements.

Timothy J. Mc Greevy: --The District Court and the Eighth Circuit, I believe, Mr. Justice, referred only to a request to talk to Steve prior to answering the polygraph question.

Unidentified Justice: Yes.

Timothy J. Mc Greevy: That is true.

Unidentified Justice: How are we to understand the record any other way then?

Timothy J. Mc Greevy: I guess the way I would approach that is to suggest that I don't think that the District Court or the Eighth Circuit necessarily alluded to every factual element that appears in the record.

Unidentified Justice: Let me ask you this then.

We can read the record.

Let me ask you this.

Suppose that it was perfectly clear that all he meant to say was I want to talk to my lawyer before I answer your question about the polygraph.

Suppose that was it, the questioning stopped.

Then do you think Edwards would prevent the lawyers from coming back and asking him about something else besides the polygraph?

Timothy J. Mc Greevy: Mr. Justice, I believe that not only would Edwards--

Unidentified Justice: That can be a yes or no answer, can't it?

Timothy J. Mc Greevy: --I think it can be a yes answer, but when you finish I might try and explain a little further.

Unidentified Justice: Well, you say, yes.

You say, yes, they would be prevented from coming back and asking any questions.

Timothy J. Mc Greevy: Yes, sir.

Unidentified Justice: I think you have to take that position.

Why?

Now tell me why.

Timothy J. Mc Greevy: Thank you.

My theory on this case has been that one need never even get to Edwards to properly decide this case.

It seems to me that what Miranda says is that if a suspect indicates that he wants to remain silent questioning must cease.

Unidentified Justice: What in this case was it that he wanted to remain silent to use your words?

Timothy J. Mc Greevy: Yes, sir.

Unidentified Justice: When did he say that?

Timothy J. Mc Greevy: He didn't in those words.

My point is--

Unidentified Justice: Well, what words do you say he said that?

Timothy J. Mc Greevy: --When he indicated that he wanted his attorney.

To me, that is--

Unidentified Justice: Well, suppose he said I want to see my attorney to find out what time of day it is?

Would that be all right?

Timothy J. Mc Greevy: --I think that is an unlikely comment for him to make being interrogated regarding a homicide.

But, I suppose if that is what the testimony was, then we might not be here under these circumstances, but that is not what he was getting at and that is not the way the detectives interpreted it.

Unidentified Justice: But, is there anything in the record where he said... You agree that there is nothing in the record where he said hold off until I see my lawyer.

Timothy J. Mc Greevy: Oh, there certainly is.

Unidentified Justice: There is the next day but not on that day.

That is what I am talking about, that day.

Is there anything in the record where he said let's hold off until I talk to my lawyer or I am not going to tell you anything until I talk to my lawyer?

Timothy J. Mc Greevy: If I might... I am not sure which of the Justices I should address at the moment, but--

Unidentified Justice: Take your pick.

Timothy J. Mc Greevy: --Okay.

[Laughter]

Unidentified Justice: Address us all.

Timothy J. Mc Greevy: All right.

A question was raised as to whether the request was a specific request only to talk to Steve before the polygraph question was answered.

In the brief, we indicate that in the preliminary hearing transcript at page 49 and 50... and understand that that testimony at the preliminary hearing doesn't come from Norm Stumes, that comes from a detective.

They indicated that Green in that first interrogation asked if he was responsible for the death of Joyce Hoff and to that Norman replied he would rather not answer until he talked to Steve.

A moment or two later in the same interrogation, Green says do you want to clear yourself by taking a polygraph like everybody else has?

"X number of people" is the term they used.

And, he said he would like to talk to Steve before answering that question.

So, two times in a period of apparently a minute or two there is a request for counsel.

Then, what happened--

Unidentified Justice: You said it was two hours a minute ago.

Now you say two minutes.

Didn't you say they questioned him for two hours that morning?

Timothy J. Mc Greevy: --The first interrogation session, I think, was about one hour and 45 minutes.

Unidentified Justice: And, he said, as to two questions in that time, he said I want my lawyer.

Timothy J. Mc Greevy: Those, I believe, the record would show--

Unidentified Justice: Is that it?

Is that all you have got?

Have you got some more?

Timothy J. Mc Greevy: --Yes, I sure... Yes, I do, Your Honor.

Those two questions that I specifically mentioned occurred at the end of the hour and 45 minutes in this isolated interrogation with Norman Stumes and Green.

Unidentified Justice: But he still said he wanted to talk to his lawyer before answering the question about the polygraph.

Timothy J. Mc Greevy: And that he wanted to talk to his attorney before he answered whether he was involved in the death.

Unidentified Justice: Well, that isn't what--

--Mr. McGreevy?

Timothy J. Mc Greevy: Yes, sir.

Unidentified Justice: To take just a hypothetical case, kind of based on the circumstances that you have been describing, supposing that you have a defendant in custody like your friend Norm, as you refer to him, and he is being interrogated by the police, and there have been no Miranada violations up to that time, and then he is asked by one of the police, will you take a polygraph test to clear yourself and he replies, before answering the question about the polygraph test, I would like to talk to my attorney, and, the police then say, okay, we won't talk any more about the polygraph test, let's talk about where you were at the scene of the crime.

Now, is there any sort of a violation by that question?

Timothy J. Mc Greevy: Under the way I would interpret Miranda, I think that that is a violation.

Unidentified Justice: Miranda is mostly dicta, isn't it?

Timothy J. Mc Greevy: Not the way I view it, I guess.

Unidentified Justice: Do you think all of those facts were presented to the case by the situation of the Arizona imprisonment out of which it arose?

Timothy J. Mc Greevy: No, I am sure that is not the case.

Unidentified Justice: Then isn't it dicta?

Timothy J. Mc Greevy: Perhaps in a technical sense it is, but I think that it expressed the opinion of the court at the time the decision was handed down.

Unidentified Justice: That is true of all dicta, isn't it?

Timothy J. Mc Greevy: I think so, yes, sir.

I wanted to get to the point of the second interrogation, because I think that may be key to our analysis.

After this first interrogation of an hour and 45 minutes where we have denials, denials, denials, ending with two requests to talk to Steve, the detectives leave or I should say Green leaves.

Later in that afternoon Detectives Green and Skadsen return to once again interrogate Stumes.

There is no advice given regarding the Miranda rights, the constitutional rights, no advice of those rights at all.

It is during the course of that interrogation... This is an interrogation that Judge Nichol found to have violated Miranda.

There is no question about that.

The District Court found this interrogation to violate Miranda.

Unidentified Justice: That is not before us though, is it?

Timothy J. Mc Greevy: No, but I think that it provides the linchpin to explain what happened the next day, Mr. Chief Justice, in my view.

During that interrogation, according to the testimony of the officers, they got Mr. Stumes to admit that he had lied in the morning.

They got him, according to their testimony, to admit that, yes, I had been there at the time in question, yes, I had been in the bedroom, yes, yes, we had had intercourse, and then at the end, again, without the benefit of Miranda, they asked the question... Green asked the question, was it accidental or intentional and to that Stumes replies accidental, according to the testimony.

The way I see this situation, when the police had that, in effect, they had their case.

They had gotten the man to acknowledge that he had lied in his previous answers.

They now had him admitting that he was there.

They got him admitting involvement in the death.

Yes, he is claiming that it is accidental.

But, they knew that the facts, the physical facts, belied any claim that the death was accidental.

Unidentified Justice: Aren't all of these preliminary questions really merged into the final statement 60 to 90 miles from Sioux Falls?

In other words, suppose nothing is admissible except that final statement.

On the findings of the District Court and the verdict of the jury, that is the facts that we are bound to accept.

Isn't that the state of facts?

Timothy J. Mc Greevy: I am not positive that I follow that question.

Unidentified Justice: When he got emotionally upset.

Timothy J. Mc Greevy: Yes.

Unidentified Justice: And said I want to tell you about this in words to that effect.

Nobody has asked him any questions at that point.

Timothy J. Mc Greevy: According to the record, not at that particular point in time.

I think the record does show that the detectives started the long trip with fresh Miranda warnings, that they immediately interrogated, and that the record indicates that the interrogation continued intermittently during the long trip.

But, it is true, I don't believe, anything in the record that indicates that there was an outstanding question regarding the interrogation at the time that Mr. Stumes made that--

Unidentified Justice: Aren't we obliged to accept as a fact that that was a spontaneous declaration by him?

Timothy J. Mc Greevy: --I don't believe so.

Unidentified Justice: Sixty to 90 miles away from Sioux Falls.

Why not?

Timothy J. Mc Greevy: Well--

Unidentified Justice: The jury rejected his testimony on it and accepted the police testimony on it and that is consistent with all of the independent fact findings of the District Judge?

Timothy J. Mc Greevy: --The approach that we take on this case, of course, is that the jury ought not to have known of the... I will use your terminology... the spontaneous declaration that was made as the neared Sioux Falls, because, of course, it is our theory of this case that had it not been for the repeated efforts by the police to interrogate absent counsel, and if it had not been for the authorities' interrogation the afternoon before without even benefit of Miranda, that we would never have reached the point where we could have this spontaneous declaration, again, to use your terms, Mr. Chief Justice, occur.

So, we really fashion an argument, I think, that builds one step at a time to reach that final conclusion.

Incidentally--

Unidentified Justice: But, Mr. McGreevy, that is basically a factual conclusion, isn't it, whether something that had happened the previous afternoon did or did not motivate the Defendant in this case to make what the Chief has described as a spontaneous statement?

What are the findings of the District or the Court of Appeals on that particular issue if there are any findings?

We shouldn't be speculating here whether one thing, in fact, caused another.

Timothy J. Mc Greevy: --I can see the problem that you would have with that.

Insofar as whether either of the courts below made findings on that specific issue, I don't think directly that I can recall... the District Court, as I indicated, found the interrogation in the afternoon to have violated the principles of Miranda, but had, for reasons that I never have been able to understand, held that that was harmless.

I have to analogize or contrast that, I should say, to what the Eighth Circuit did when they looked at this case.

The Eighth Circuit looked not only at the interrogation in the automobile, but they also looked at the statements attributed to Mr. Stumes upon arriving at the jail in Sioux Falls.

Counsel for the state has made reference to the fact that according to the detective's testimony Mr. Stumes asked the detective to come back and it is then that he is supposed to have said, tell them I am not a vicious killer.

I believe the Eighth Circuit took the view, for instance, looking at that--

Unidentified Justice: He also said I didn't mean to kill her.

Timothy J. Mc Greevy: --That is the other one you were trying to get at.

I couldn't recall it either.

Unidentified Justice: I wouldn't blame you.

Timothy J. Mc Greevy: Okay.

The point I was trying to make then, Justice Rehnquist, was that just as the Eighth Circuit saw that final incriminating statement as having flowed from the interrogation in the car, I think it is reasonable to presume that--

Unidentified Justice: When you say 90 miles east of Sioux Falls were not the result of interrogation.

Are you saying that the Eighth Circuit found the statement in Sioux Falls as a result of interrogation early in the morning?

Timothy J. Mc Greevy: --It is my understanding that the Eighth Circuit found that the interrogation which took place in the car violated--

Unidentified Justice: Then when did interrogation take place in the car under your view of the record.

Timothy J. Mc Greevy: --Interrogation took place in the car intermittently throughout the day according to the record.

It was intensive at the beginning according to the record.

Then, from that point forward, maybe half an hour into the trip, according to the record it is intermittent.

Now, I realize that is perhaps not the clearest record we would like to have, but that is what we have as a record, intermittent questioning.

Then Mr. Stumes is alleged to have said taking a human life is so useless or words to that effect.

Immediately that was followed by interrogation.

There is no question about that.

And, I don't believe that the state would contend otherwise.

There was vigorous interrogation that then took place.

Unidentified Justice: Of course, that would quite naturally and I think properly prompt interrogation, couldn't it?

If someone... a defendant out of clear blue sky said taking a human life is so useless.

Timothy J. Mc Greevy: Well--

Unidentified Justice: I mean, that is not talking about the Green Bay Packers.

Timothy J. Mc Greevy: --I have difficulty accepting the terminology out of the clear blue sky, because I think this entire episode needs to be seen in the context of what it really was.

I think the whole scenario was an effort to elicit incriminating statements and it lasted not just a few minutes, but it lasted really a day and a half.

Unidentified Justice: Suppose we disagreed with you that the second interrogation on the first day was improper and, therefore, the interrogation for the first half hour of the second day was proper.

Suppose that we agree to that.

If there hadn't been any prior interrogation at all, no prior claim of counsel at all, the interrogation in the automobile for the first half hour would have been perfectly all right after Miranda warnings.

Timothy J. Mc Greevy: The first half hour in the automobile under all of those various facts that you would suggest or assumptions, I would say, yes.

But, of course--

Unidentified Justice: Well, I know, but suppose we disagree with you that there was nothing wrong with anything that happened on the first day?

Timothy J. Mc Greevy: --All right.

Unidentified Justice: Then I would think the first half hour of interrogation was quite proper the second day.

Timothy J. Mc Greevy: Well, I don't agree, because the first day ended with a third request for counsel made that same day.

Unidentified Justice: At the end of... At the very end.

Timothy J. Mc Greevy: At the end of the second interrogation which is at the end of the first day.

Unidentified Justice: Okay.

Timothy J. Mc Greevy: This is the interrogation that had no Miranda rights.

Unidentified Justice: All right.

Timothy J. Mc Greevy: That one concludes with a very clear request.

Unidentified Justice: Right.

Timothy J. Mc Greevy: You will recall we mentioned earlier that according to the evidence Mr. Stumes is alleged to have said that the death was accidental.

He then goes on to indicate that he is not going to talk about it any more until he sees Steve, his attorney.

Unidentified Justice: Mr. McGreevy, have you finished answering Justice White?

Timothy J. Mc Greevy: I think I have.

Unidentified Justice: What I would like to ask is whether this Court has ever held before Edwards that once a defendant has requested the right to see counsel that the only subsequent event that would enable law enforcement to continue any discussions with him whatever was when the defendant himself initiated that discussion?

Prior to Edwards have we ever held that before?

Timothy J. Mc Greevy: Well, I may run into trouble with you, Mr. Justice, or perhaps one of your colleagues making a distinction between--

Unidentified Justice: Just cite the case.

Timothy J. Mc Greevy: --Pardon me.

Unidentified Justice: Just cite the case in which we held that.

Timothy J. Mc Greevy: Well, the problem I was having was between dicta and holding and I don't believe that I can tell you or that I can refer to a holding if you wish to use that particular term.

Unidentified Justice: Did Edwards cite any prior cases which we--

Timothy J. Mc Greevy: Well, certainly.

Edwards, of course--

Unidentified Justice: --Did it cite any prior cases?

Timothy J. Mc Greevy: --Yes.

Unidentified Justice: Which one?

Timothy J. Mc Greevy: Miranda.

Unidentified Justice: Miranda?

Timothy J. Mc Greevy: That is the key.

Unidentified Justice: Did Miranda hold that?

Timothy J. Mc Greevy: I think Miranda... My whole theory has been that we need never get to Edwards because Miranda says when counsel is requested, the police officers must stop questioning.

Unidentified Justice: Yes.

Timothy J. Mc Greevy: They even went on in Miranda to explain what the alternatives are that are available to the police.

They say in Miranda you don't need to have a jailhouse lawyer available or a policehouse lawyer available because you can make a decision that you are not going to get an attorney there right away, but just remember you can't interrogate until you do it.

Unidentified Justice: May I ask this?

Did Miranda overrule Zerbst?

It said you may waive almost any constitutional right.

You can certainly waive the right to have counsel when you are being interrogated.

And, Zerbst said that you look to all of the facts and circumstances.

Was that overruled in Miranda?

Timothy J. Mc Greevy: I don't believe so.

I believe that Miranda still permits a waiver, but I see Miranda as saying really... I think there are two kinds of waivers or a waiver at two levels that can take place.

When a suspect is advised of his rights, you have a right to have an attorney present, the suspect can at that time make a knowing, intelligent, voluntary waiver of that right and say, no, I don't want an attorney, I will talk to you.

That is a waiver.

You get a different waiver question, I really think, when that suspect has said I need my attorney.

Then he has, in effect, said I can't deal with you without help.

Unidentified Justice: Is there any case prior to Edwards that said that?

The answer is no.

You haven't been able to cite one.

Timothy J. Mc Greevy: I think that Miranda does, but I don't think I can say that it is holding in the strict sense of the word.

But, I think clearly--

Unidentified Justice: Do you think Miranda modified Zerbst?

It didn't say so.

Timothy J. Mc Greevy: --Well, I--

Unidentified Justice: Zerbst has been cited any number of times since.

Timothy J. Mc Greevy: --I am not sure how to respond to that.

The point that I wish to make with respect to Miranda is that... and I need to address just for a moment the retroactivity question if we ever reach that, if the Court reaches that question.

It seems to me that if we view Edwards as establishing a new principle, then it seems to me it was abundantly foreshadowed by Miranda, because Miranda said when they ask for counsel you quit questioning.

And, I think all Edwards did was reinforce that, give life to it, give vitality to it, and tell the authorities that you will abide, you will abide by that request.

So, that is the way I view it.

By way of conclusion, we do respectfully request on behalf of our client that the judgment of the Eighth Circuit in this matter be affirmed.

If there are no further questions, I have concluded my argument.

Thank you.

Chief Justice Warren E. Burger: Very well, Mr. McGreevy.

Do you have anything further, Mr. Meierhenry?

Mark V. Meierhenry: Very briefly, Your Honor.

As most courts are wont to do, most of the argument today had to do with how to apply Edwards retroactively and, of course, it is our strenuous objection, and I only rise to remind the Court that under the prior rules and teachings of this Court this is not an appropriate case to apply retroactively.

And, if it is not a proper case and you agree with the state, then obviously the Eighth Circuit must be reversed because it most certainly was proper under Miranda and any other case until the new Edwards rule was adopted in 1981.

ORAL ARGUMENT OF MARK V. MEIERHENRY, ESQ. ON BEHALF OF THE PETITIONER--REBUTTAL

Unidentified Justice: May I ask you, do you read the Edwards opinion itself as purporting to announce a new rule?

I have in mind specifically the sentence quoted on page 11 of your opponent's brief.

"We reconfirm these views, and to lend them substance. "

we do so and so after quoting from Miranda.

Mark V. Meierhenry: I believe it is a new rule.

I know we--

Unidentified Justice: That isn't my question.

Do you think the opinion in Edwards purported to announce a new rule?

Mark V. Meierhenry: --I believe it did.

Unidentified Justice: Is there language in the opinion that purports to adopt a new rule?

Why would they say "we reconfirm these views"?

That is purporting to announce a new rule?

Mark V. Meierhenry: I believe since then that other members of the Court have looked at it... not of this Court but of other courts have looked at it as a new per se rule.

It was certainly a new rule as far as those of us who must implement the decisions are concerned, absolutely new, and, therefore, I think it is a new rule and it should be given retroactive effect, because if it is not a new rule, then nothing should be reversed that happened in 1973.

Thank you very much.

Chief Justice Warren E. Burger: Thank you, gentlemen, the case is submitted.

Featured:

United States v. Johnson - Oral Argument

Fri, 09 Jan 2009 14:47:44 +0000

Case:

United States v. Johnson

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF ELLIOTT SCHULDER, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Burger: We will hear arguments first this morning in United States against Johnson.

Mr. Schulder, you may proceed whenever you are ready.

Mr. Schulder: Thank you.

Mr. Chief Justice, and may it please the Court, on April 17th, 1980, this Court held in Payton versus New York that absent exigent circumstances or consent, the Fourth Amendment requires law enforcement officers to obtain an arrest warrant before entering a suspect's home to arrest him on probable cause.

Prior to Payton, on September 14th, 1978, the United States Court of Appeals for the Ninth Circuit had reached a similar conclusion in United States versus Prescott, holding that a warrantless entry into private premises to arrest a suspect violated the Fourth Amendment.

The question in this case is whether the Fourth Amendment rule announced in Payton and Prescott should be applied retroactively to suppress evidence obtained as a result of the warrantless arrest entries occurring before the dates of those decisions.

The facts of this case are as follows.

In March, 1977, the Postal Service misdelivered an envelope containing a United States Treasury check to a woman named Lena Kearney.

Kearney and a friend decided to keep the check and try to cash it.

The next day, Respondent and two other men met at Kearney's house to discuss possible ways of cashing the check.

After making a telephone call, Respondent announced that he believed he had found someone who could help them cash the check.

Respondent and the other men then left Kearney's house with the check in their possession.

Some time later, a Secret Service agent investigating this matter learned from Kearney and her friend about Respondent's involvement in the scheme to cash the check.

On May 5th, 1977, two federal agents went to Respondent's house to question him about his involvement in the scheme.

Although they had probable cause for Respondent's arrest, the agents did not obtain an arrest warrant for Respondent before proceeding to his house.

The agents approached the door and knocked on it, and when Respondent opened the door, the agents identified themselves, and Respondent invited them inside.

Once inside the house, the agents gave Respondent his Miranda warnings, and Respondent revealed his role in the scheme to cash the check.

The agents then informed Respondent that he was under arrest, and brought him to the police station, where he signed a written confession.

Respondent was charged with aiding and abetting the obstruction of correspondence.

Prior to trial, he moved to suppress his statements on the ground that they were the fruits of an unlawful arrest that was unsupported by probable cause.

The district court denied the motion, and Respondent was convicted after a jury trial.

On appeal, the court of appeals, in December of 1978, initially affirmed Respondent's conviction.

The court concluded that even though the agents were not armed with a warrant when they entered Respondent's house to arrest him, the agents' actions did not violate the Fourth Amendment, because they had probable cause to arrest Respondent prior to their entry.

Relying on the Ninth Circuit's decision in United States versus Prescott, Respondent petitioned for rehearing, arguing for the first time that the warrantless entry into his house violated the Fourth Amendment.

The panel issued an amended opinion distinguishing this case from Prescott and holding that the agents' actions were permissible under the Fourth Amendment.

Following this Court's decision in Payton versus New York, the court of appeals issued a third decision, this time reversing Respondent's conviction, relying on Payton, but without any discussion of retroactivity principles.

The court held that the warrantless entry into the Respondent's house violated the Fourth Amendment, and that Respondent's statements should have been suppressed as the fruits of that illegality.

The government then petitioned for rehearing, arguing that the rule announced in Payton should not be applied retroactively.

This was the first opportunity that the government had to address the retroactivity question before the court of appeals.

In response to the government's arguments, the court of appeals revised its opinion to explain that its suppression ruling was based both on Payton and on its earlier decision in Prescott.

Although the arrest entry in this case occurred prior to either of those decisions, the court noted that it held in another case that Prescott would be given retroactive effect in this circuit to arrest entries that occurred prior to Prescott.

Accordingly, the court applied the warrant requirement established in Payton and Prescott to the arrest entry in this case.

It is our position that the ruling of the court of appeals is inconsistent with established principles governing the retroactivity of decisions that expand the scope of Fourth Amendment protections.

In United States versus Peltier, this Court observed that in every case in which it considered the retroactivity of a decision announcing a new Fourth Amendment standard, the Court had concluded that the new standard would be applied prospectively only.

The Court's consistent refusal to give retroactive effect to these Fourth Amendment decisions stems from its reluctance to apply the exclusionary rule to suppress the fruits of law enforcement conduct that took place before the new standards were announced.

As the Court has stated on many occasions, the exclusionary rule is a judge-made rule primarily designed to deter law enforcement officers from violating the Fourth Amendment.

The rule is not a personal right of the party aggrieved by the search or seizure, but rather it is intended to protect Fourth Amendment rights generally through its deterrent effect.

In addition, the application of the exclusionary rule, as the Court has noted many times, imposes heavy costs on society, by withholding relevant, probative evidence, with the result that the truthfinding function of the criminal trial is impaired.

Accordingly, the Court has refused to apply the exclusionary rule in a variety of different settings where the social costs were deemed to outweigh the deterrent benefits.

For example, the Court has held the exclusionary rule does not apply to suppress evidence in grand jury proceedings, that evidence seized illegally by state police is not subject to suppression in federal civil proceedings, and that illegally seized evidence, while inadmissible on the government's case in chief, may be used to impeach a defendant's testimony in a criminal trial.

The retroactivity cases present yet another setting in which the Court has concluded that the costs to society of suppressing reliable evidence outweigh the benefits of exclusion.

As the Court made clear in Peltier, neither the deterrent purpose of the exclusionary rule nor the imperative of judicial integrity are served by suppressing evidence obtained by law enforcement officers in good faith compliance with then prevailing constitutional norms.

Thus, once a new Fourth Amendment standard is announced, the police will be guided by that standard, and if the premise behind the exclusionary rule is sound, they will be deterred from violating the new standard by the threat of suppression.

However, there is little or nothing to be gained by imposing the exclusionary sanction to police conduct that occurred before the new standard was established, since the police could not have known that their conduct transgressed constitutional limits.

Respondent does not appear to take issue with any of these general principles.

His main argument here is that Payton and Prescott should not be applied retroactively because in Respondent's view those decisions did not establish a new Fourth Amendment rule.

Of course, if a decision is based on existing principles, the retroactivity of that decision is a moot question, since any subsequent case would be governed by the same pre-existing principles.

On the other hand, where a decision in the Fourth Amendment area overrules past precedent, even Respondent would agree that such a decision should not be applied retroactively.

The focus of the dispute in this case is whether decisions resolving previously unsettled Fourth Amendment questions are new, and thus under the test in Peltier are not to be applied retroactively.

There is no doubt, and Respondent concedes that the constitutionality of warrantless arrest entries was an open question in the Ninth Circuit prior to Prescott, and in this Court prior to Payton.

Indeed, in Payton the Court pointed out that the practice of making warrantless arrest entries was long-standing and widespread, and that most of the states that had taken a position on the question had approved the practice.

Moreover, most of the state and federal court decisions cited in Payton as disapproving the practice of making warrantless arrest entries were issued after the entry into Respondent's house in May, 1977.

For many years, therefore, this Court was aware that warrantless arrest entries were standard police practice, yet it did not declare that practice to be unlawful until its decision in Payton.

In light of this background, we submit that Payton... that before Payton was decided, law enforcement agencies throughout the country were justified in believing that warrantless arrest entries were constitutionally acceptable unless controlling lower courts within a particular jurisdiction had already held that such conduct was prohibited.

Unidentified Justice: Well, Mr. Schulder, you say controlling lower courts within a particular jurisdiction.

In this case we have the Court of Appeals for the Ninth Circuit.

But how far do you break that down?

Supposing the court of appeals had never spoken on the issue, but there was an opinion in the Southern District of California that said it was all right, and in the Central District that said it wasn't.

Does the California Highway Patrol have to do one thing north of Oceanside and another thing south?

Mr. Schulder: Absolutely not, Your Honor.

We would submit that the controlling federal court within a particular circuit would be the court of appeals for that circuit.

Unidentified Justice: So that if there simply were a conflict in district court decisions, there would be no question of retroactivity one way or the other?

Mr. Schulder: That's correct.

Unidentified Justice: Why pick out the court of appeals as opposed to the district court?

Mr. Schulder: Well, because the decision of one district judge is not binding on any other judge within a particular district, whereas the decision of the court of appeals is controlling within... within the circuit.

Unidentified Justice: What if he is the only judge in the district?

Mr. Schulder: Well, if he is the only judge in... well, presumably the government will have an opportunity to test the correctness of his decision on appeal to the court of appeals.

Unidentified Justice: And assume he is affirmed.

Then when did the law first become binding on the officers in that district?

The date of the affirmance, or the date of his first ruling?

Can the law... Can the FBI just ignore the district judge's ruling in that district even though it is later affirmed on appeal?

Mr. Schulder: I would think that in that limited situation, they might be doing so to their own detriment.

Unidentified Justice: Well, a court of appeals opinion can always be... you can always petition for certiorari here from that opinion.

Mr. Schulder: That's correct.

Unidentified Justice: So why does the court of appeals opinion become a milestone if a district court opinion doesn't?

The only possible difference, I suggest, counsel, is that review here is in virtually every instance a matter of discretion by this Court, where a review by the court of appeals is mandatory, and I am not suggesting that is a significant difference.

Mr. Schulder: That's correct.

Unidentified Justice: Otherwise, is there any difference in the posture of the two cases?

Mr. Schulder: Well, a decision of a district court would not be considered state decisis in the same way that a court of appeals decision would be.

Unidentified Justice: I believe you said it is not binding even on his fellow district judges.

Mr. Schulder: That's correct.

Unidentified Justice: Whereas a court of appeals opinion is binding on everyone in the circuit.

Mr. Schulder: That's correct.

The circuit judges on other panels, and on all district judges within the particular circuit.

Unidentified Justice: They don't uniformly observe that, though, do they?

Mr. Schulder: Perhaps not in certain cases, Your Honor.

Unidentified Justice: That is what we call intra-circuit conflicts.

Mr. Schulder: That's correct.

Unidentified Justice: There are some districts in which the judges more or less informally adopt a sort of a stare decisis practice of their own, treating similar problems in the same way, to have uniform law within the district.

If they had such a rule within the district here, would that make a difference, or would you still just ignore the district judge?

Mr. Schulder: We believe that the agents would not be bound as a constitutional matter to adhere to decisions of the district court.

Unidentified Justice: You would say this case would be decided differently if the Ninth Circuit were not so far behind in its backlog of cases, and this had gotten here before the Payton case got here.

The reason this litigant loses is because his appellate process took so long.

Isn't that right?

Mr. Schulder: In a way, that... that's true, but the Court has--

Unidentified Justice: We have different rules of law, depending on the speed with which cases reach the Supreme Court.

Mr. Schulder: --Well, the Court has pointed out in a number of cases, Stovall, Desist, and others, that that is one of the consequences of the way our system operates.

The focus of the retroactivity decisions is upon the time of the law enforcement practice involved, not on any subsequent point in the process.

Unidentified Justice: It is only a consequence of the way the system operates if the judges are engaged in the business of lawmaking.

If there was a rule that was uniformly applied to cases pending on direct appeal or something, it wouldn't work that way.

When you are arguing retroactivity here, it is not in the sense of the case... you mean retroactivity not just for collateral attack purposes, but even on direct appeal, in direct appeal situations.

Mr. Schulder: Well, that is absolutely correct.

In fact, collateral attacks would be covered by Stone versus Powell generally.

Unidentified Justice: Well, I suppose you can say that if Peltier had gotten here before Almeida-Sanchez, Peltier might have been the deciding case.

Mr. Schulder: That's correct, and it's true of a number of other decisions where the Court has concluded that we look at the actual time at which the search or seizure or other law enforcement practice that's involved took place, rather that at any... at any other point, because it is the time at which the law enforcement officers actually acted, at which they are charged with knowing or not knowing what the law was at a given... at a given point in time.

Furthermore, the whole purpose underlying the exclusionary rule is the deterrent purpose, and if the agents at a given time have no way of knowing that their action is unlawful, no deterrent purpose or no significant deterrent purpose would be served by suppressing evidence as a result of search and seizure that was later declared to be unlawful, especially since now that Payton and Prescott have been decided.

There is a clear rule that law enforcement officers know they have to follow.

Respondent argues in this case that the decisions in Payton and Prescott were clearly foreshadowed by dicta in the decisions of this Court and the Ninth Circuit, and by the Court's so-called persistent avoidance of this issue, which in Respondent's view should have signalled to law enforcement agencies that the issue would eventually be decided adversely to the government.

As we have pointed out in our briefs, we do not believe that the decisions in Payton and Prescott were clearly foresnad wed.

In any case, Respondent's test is the wrong one for deciding whether to apply the exclusionary rule to suppress evidence acquired during a search or seizure that occurred prior to the decision that established the practice in question to be unconstitutional.

To paraphrase Judge Wilkie's dissent in United States versus Ross in the District of Columbia court of appeals, the proper inquiry is not whether lawyers and judges would describe a new Fourth Amendment decision as having been clearly foreshadowed, but whether law enforcement agencies can properly be charged with having had notice at the time of the search or seizure that the practice violated the Fourth Amendment.

In this very case, the court of appeals judges who initially affirmed Respondent's conviction in December, 1978, and upheld the warrantless entry into his house, apparently did not believe that the Fourth Amendment required a warrant.

In fact, Respondent himself did not challenge the warrantless entry until after Prescott announced such a requirement.

In these circumstances, it would be peculiar, we suggest, to conclude that the arresting agents should have known of the need for a warrant some 16 months before Prescott announced that requirement and some three years before the Court in Payton announced the requirement.

In our view, Petitioner's argument here ignores the social costs of imposing the exclusionary rule in this context.

The primary cost, of course, is the... is that the search for truth at criminal trials is impaired by the exclusion of reliable evidence, with the result that guilty defendants may go free.

Now that Payton and Prescott have established a clear rule for law enforcement officers, there is no reason for the Court to suppress evidence to accomplish that deterrent effect, because the agents now know that any searches, any arrest entries that they conduct in the absence of exigent circumstances in the future may result in the suppression of evidence.

In a more general way, it is arguable that the retroactive application of decisions like Payton, which involve previously unsettled questions, may deter law enforcement officers from engaging in conduct that is not yet settled as being lawful.

The result will be that officers will avoid not only illegal searches or seizures, but also perfectly legitimate law enforcement techniques.

In fact, if, as Respondent argues, whenever an issue is unsettled, officers must conform their conduct to suggestions in dicta made from the bench by district judges, then the effectiveness of law enforcement officers will be measurably diminished.

Unidentified Justice: Am I to understand that the officers of the federal government are familiar with all of the dicta from the bench in all of the district courts?

You don't really mean that, do you?

Mr. Schulder: Well, we don't make any such representation.

Unidentified Justice: Well, you just said so.

Mr. Schulder: Well, I was saying that Respondent suggests that they should be familiar with all... not only familiar with dicta from the bench by federal district judges, but that they should conform their practices to those... those comments from the bench.

Unidentified Justice: I just don't think dicta from district courts has anything to do with this case.

That is all my point is.

Mr. Schulder: I agree with you, Your Honor.

Whatever incremental deterrent benefit, that is, the deterrence of some unlawful conduct that might arise from suppression in this context hardly justifies the costs of such a policy, especially since the period of uncertainty as to any particular law enforcement practice will last only until that practice is challenged in court and its validity is judicially determined.

Of course, as I said earlier, once the courts hold that a particular practice is unconstitutional, then under our system of government, society must be willing to pay the price of both exclusion of evidence and... and of reduced law enforcement.

In fact, in the Court's decision in Payton, the Court noted that the state had made an argument that imposing a warrant requirement would impose burdens upon local prosecutors, but the Court said that because the Constitution required the police to obtain a warrant, whatever costs there might be were irrelevant.

Those costs had to give way.

Unidentified Justice: Payton actually is one of two cases.

There was the Riddick case that was with it.

Why was it appropriate to decide them both?

Why shouldn't we have picked one and let the other one... what justification was there for reversing both convictions?

Mr. Schulder: Well, the Court granted certiorari in both cases, and heard arguments in both cases.

Unidentified Justice: But really, it is kind of unfair to the officers in the later of the two searches, I suppose, and there were a bunch of cases that we held for decision in those.

I suppose we shouldn't have done that, either.

Mr. Schulder: Well, we don't feel that... apparently the Court has developed a practice of holding cases pending its decision in cases that it has accepted, but there is no requirement that the Court do so, and there is--

Unidentified Justice: But at the time a Fourth Amendment issue comes to us for the first time with several cases, I would suppose the government's view is that we should decide just one of them, because there is really no judicial purpose in treating all litigants alike.

Mr. Schulder: --That's correct.

Finally, Respondent argues that he should benefit from the rule announced in Payton and Prescott because his case was on direct review at the time those decisions were announced.

However, as I mentioned earlier, because the exclusionary rule is not a personal right but is designed to prevent future Fourth Amendment violations, the critical juncture is the time of the search, not any--

Unidentified Justice: Of course, Justice Harlan was definitely of that view, was he not?

Mr. Schulder: --Justice Harlan was of the opposite--

Unidentified Justice: Anything on direct appeal was to be given the advantage.

Mr. Schulder: --That's correct.

Unidentified Justice: And some others agreed with him.

Mr. Schulder: I believe so, Your Honor.

Unidentified Justice: And still do.

Mr. Schulder: That may be.

We feel in the Fourth Amendment context, though... well, in Hankerson versus North Carolina, Justice Powell indicated in his concurring opinion that he agreed with Justice Harlan's view, but Hankerson was a case not involving the Fourth Amendment.

It was a case involving the retroactivity of Mulaney versus Wilbur, and the issue in that case went to the fairness of the trial.

It is our position that because the Court has said in numerous cases that the exclusionary rule should be limited and applied only in order to... only in those cases where its application serves a deterrent benefit, that it simply should not be applied even to cases on direct review after the Court has announced a new Fourth Amendment principle.

Accordingly, we submit that the Court should adhere to its consistent practice of applying new Fourth Amendment decisions prospectively only.

Because the arrest entry into Respondent's house occurred before both Payton and Prescott had held that the Fourth Amendment required a warrant for such entries, Respondent's post-arrest confessions should not be suppressed.

For these reasons, and for the reasons stated in our briefs, the judgment of the court of appeals should be reversed.

I would like to reserve my remaining time.

Chief Justice Burger: Mr. Walter?

ORAL ARGUMENT OF JOHN F. WALTER, ESQ., ON BEHALF OF THE RESPONDENT

Mr. Walter: Mr. Chief Justice, and may it please the Court, I agree basically with the recitation of the procedural history of this case made by government counsel, except in one major respect, and that is, as the Court is aware, this case has had a sored... not a sored, but a troubled path through the Ninth Circuit Court of Appeals.

The first opinion of the Ninth Circuit Court of Appeals did something which I think is very important in this Court's analysis of the issue that is present before the Court, and that is, it made a de novo finding that there was probable cause for the arrest of my client.

The... It was clear in the trial court during the motion to suppress and also during the... during the course of the trial, and the trial judge so found, that there was no probable cause for my client's arrest on the day that Agents Hemingway and Pickering went to the home to interrogate him.

The lack of probable cause was a determination made by the trial court based upon the testimony elicited, I believe, from... it was Agent Pickering.

Agent Pickering testified that it was his belief that at the time that they went to my client's home, that they did not have sufficient evidence to arrest my client.

According to Agent Pickering, or Hemingway... I can't recall which agent... the purpose of going to my client's home was to question him with respect to his involvement regarding this Treasury check.

However, it was further developed at the motion to suppress that the agents intended to arrest my client depending upon the degree of my client's statements at the time of the interview at his home.

That was a direct finding by the trial court.

In the Ninth Circuit, the Ninth Circuit took the position that it was appropriate for them to undertake a de novo review and as a result of that de novo review, determined that there was probable cause for the arrest.

What the Ninth Circuit failed to do is, they relied on facts that were developed during the course of the trial relating to a conversation that took place between my client on the telephone and supposedly the person who was trying to cash the check.

Unidentified Justice: Mr. Walter--

Mr. Walter: Yes.

Unidentified Justice: --you are not attacking the court of appeals opinion, are you?

Mr. Walter: I am--

Unidentified Justice: Or the judgment?

Mr. Walter: --I am attacking the court of appeals opinion with respect to that portion where they indicate or they hold that there was probable cause.

There clearly wasn't probable cause in this case.

It was a finding of the trial court that--

Unidentified Justice: Do you want us to affirm it or not?

Mr. Walter: --Yes.

Yes, I do, Your Honor.

Unidentified Justice: Well, why are you attacking it, then?

Mr. Walter: Well, I am attacking the finding of probable cause.

I am not attacking the analysis of the Ninth Circuit with respect to the retroactivity question, but I think the fact that the agents didn't have probable cause when they went to the home is important in the Peltier test of the agents' knowledge in connection with whether or not the principles of Payton and Prescott should be applied retroactively in this case.

Unidentified Justice: But if the case comes to us, it comes with a finding by the Court we are reviewing that there was probable cause.

Mr. Walter: That's correct, Your Honor, but I think it is... the Ninth Circuit's finding is erroneous, because it is not supportable by the record.

It was the trial court's finding based upon the motion to suppress that there was no probable cause.

Unidentified Justice: Did you challenge the court of appeals' finding at any time in the court of appeals?

Mr. Walter: In all candor, Your Honor, I can't... I believe that I... in one of the petitions for rehearing, I pointed out to the Ninth Circuit that their analysis of the probable cause issue was incorrect, because they were relying on facts developed during the trial and not facts developed in the motion to suppress.

Unidentified Justice: At what stage was that in the court of appeals?

Mr. Walter: That was on... I believe it was the first petition for rehearing when I requested the court to consider the case in light of Prescott.

Unidentified Justice: And was that the one that was granted?

Mr. Walter: Yes, Your Honor, it was.

I think they were all granted in terms of filing an amended opinion.

Each time we went for a petition for rehearing, we got... in that case they affirmed the trial court's decision but held... and held that Prescott didn't apply because it wasn't a forcible entry.

That was the first time on the petition for rehearing, and then the next time the court entered an order that they were going to withhold decision in the case until this Court's decision in Payton, and they allowed counsel, both government and myself, an opportunity to object to that, and there was no objection by the... by the government.

Unidentified Justice: But the court of appeals has never directly addressed itself to your argument that there was no probable cause?

Mr. Walter: No, it has not.

But I think it is important, Your Honors, in terms of analyzing the particular conduct of these law enforcement agents, these are not local law enforcement agents, these are highly trained Secret Service agents.

If I understand the test in Peltier, and I am not... I am not quite sure that I do... I don't think many circuits understand the test in Peltier... it has to do with the knowledge that is chargeable to the agents or properly chargeable to the agents or the actual knowledge of the agents.

I am not clear which of those approaches is really meant to be adopted by this Court, and I think that is one of the problems in this case, where the government relies on Judge Wilkie's dissent in Ross, and indicating that it is not for judges or lawyers to make a determination as to whether or not there is a principle that is clearly foreshadowed, or a decision that clearly foreshadows a principle, but whether or not the law enforcement officers had knowledge.

If that is the test for... in connection with the retroactivity, it seems to me that it opens a whole area of additional questions or inquiry in a motion to suppress.

If it is the subjective intent of the searching officer at the time that he conducts the search, which is the knowledge requirement that is required by Peltier, then it seems to me defense counsel as well as the government is going to want to put on evidence as to the specific training, understanding, or knowledge of that particular officer.

Unidentified Justice: Mr. Walter, let me try again.

What issue is there before us other than the retroactivity?

Mr. Walter: That is the only issue, Your Honor.

Unidentified Justice: Well, what is all of this you have been talking about?

Mr. Walter: Well, I think in terms of analyzing the retroactivity question, Your Honor, if we assume that Peltier applies in this case, we have to determine what the standards of Peltier are in terms of assessing the actual knowledge of the law enforcement officers or the knowledge that may be properly chargeable.

Unidentified Justice: You just assume that it applies.

Mr. Walter: Yes, and if it does--

Unidentified Justice: Well, that is the whole point it is here.

Once you assume that, the case is over.

Mr. Walter: --No, Your Honor, I don't--

Unidentified Justice: If we assume that it is retroactive, don't you automatically win?

Mr. Walter: --Yes, Your Honor.

Unidentified Justice: Well, why would we grant cert to assume that?

Mr. Walter: Your Honor, I believe that the analysis, the retroactivity question begins with an analysis of what knowledge is probably chargeable to the law enforcement officers at the time of the conduct in question, and in order to make that analysis, the government argues that the issue in this case is not whether this... Payton or Prescott overruled any cases, but that it established or resolved a previously unsettled constitutional principle.

And the question that we have presented here is, what knowledge with respect to that new constitutional principle should have been chargeable to the law enforcement officer at the time that they went to my client's home in May of 1977, and I submit that if we accept the... in analyzing the... I believe it is appropriate to analyze the state of the law at the time of the conduct in question in the particular circuit, which happens to be the Ninth Circuit in Prescott, to make a determination as to whether or not Prescott was clearly foreshadowed and therefore whether or not the law enforcement officers should have been properly charged with the knowledge that there was going to be a warrant requirement.

I think we have to also keep in mind that this particular case doesn't deal with a practice that had continuing administrative approval such as that in Almeida-Sanchez, or had received continuous judicial approval.

This was a practice which had never received specific judicial approval.

There were no regulations which permitted law enforcement officers to go into someone's home absent exigent circumstances for arresting, for purposes of an arrest.

This was an area that had been continuously and constantly expressly reserved by opinions of this Court and also opinions of the Ninth Circuit.

The government argues that the Ninth Circuit opinions should not be chargeable to the law enforcement officers because they contain merely dicta.

Unidentified Justice: You are speaking of the second opinion of the Ninth Circuit.

Mr. Walter: Well, I think there were a number of opinions, starting out with Boostamante, which reserved the question, and then there was the United States-Phillips case.

Unidentified Justice: What about this panel?

Mr. Walter: On, and this... this particular panel.

I was referring to existing law prior to... prior to this panel's opinion.

And I think it is also important that the case in 19... I believe it was 1976, United States versus Calhoun.

In that case, the government lawyer in the Ninth Circuit conceded in front of the Ninth Circuit panel in that case that in that particular case, that if the court... that an arrest warrant would have been necessary to arrest the particular defendant in that case, because the arrest took place in his home.

I think that the device--

Unidentified Justice: Mr. Walter, doesn't... doesn't the opinion in Payton itself outline the division of thinking that existed in this country about the requirement of the warrant, and doesn't it outline quite thoroughly in the majority opinion as well as the dissent why this was not a settled matter at all at the time Payton was decided?

Mr. Walter: --Yes, I agree with Your Honor, except I think that the... I think that is absolutely correct, but then the next step is whether or not the law enforcement officers should have known or could have been properly charged with the outcome that a warrant was going to be required.

Unidentified Justice: Well, do you think that it is appropriate policy for us to charge the average peace officer with the requirement of anticipating the rulings of this Court in matters of this kind that are unsettled?

Mr. Walter: Not the average peace officer, Your Honor, but here we are dealing with not the average California Highway Patrolman.

We are dealing with a federal Secret Service agent.

Unidentified Justice: And you think that the rules should differ depending upon the particular training and background of the particular police officer and how sophisticated that officer is--

Mr. Walter: Well--

Unidentified Justice: --as to whether a particular principle is retroactive or not?

Mr. Walter: --No, I--

Unidentified Justice: Is that a desirable approach?

Mr. Walter: --I don't think so, Your Honor, because again, I think that would get into the subjective analysis of the knowledge of the particular law enforcement officer, but I think that you can have a... the hypothetical law enforcement officer in the particular jurisdiction, and in this case it's the Secret Service in the Ninth Circuit.

For that matter, Your Honor, in the state of California, we had People versus Ramey, which was a California Supreme Court case, which was decided in 1976, which was not dicta, it was very clear that there was going to be an arrest warrant that was going to be required of law enforcement officers to effect an arrest inside the home absent exigent circumstances.

In the Central District, the Secret Service agents work very closely, as do the FBI and other... the DEA agents work very closely with local law enforcement.

More importantly, and I think there was a question--

Unidentified Justice: How about the, say, the hypothetical court of appeals judge.

Here you have a panel of the court of appeals on December 19th, 1978, that affirms this judgment.

I mean, is it fair to say that a law enforcement officer should have anticipated the state of the law in the Ninth Circuit in 1978, when three judges of the court of appeals couldn't do it?

Mr. Walter: --Well, Your Honor, I... yes, I do, and I... and I believe so because of the peculiar facts in this case, and that is, Judge Ferguson's decision, admittedly dicta, and it wasn't even a reported decision, in the district court three months prior to my client's arrest, where he told the government that if you bring a case to me again where there is no arrest warrant, and you arrest someone in the home without exigent circumstances, I am going to suppress the evidence, because it is my belief that People versus Ramey and United States versus Dorman is the law.

Unidentified Justice: How many judges are there on the... were there in the Central District at that time?

Mr. Walter: I would say a dozen, Your Honor.

Unidentified Justice: Do you think they all would have followed Judge Ferguson's ruling?

Mr. Walter: No, Your Honor, but I know for a fact that what happened as a result of Judge Ferguson's rule is that there was a memorandum that was generated in the United States Attorney's office which indicated that Judge Ferguson had so held, and that memorandum went out to define precisely what Judge Ferguson's ruling was, and suggested to at that time the chief of the Criminal Division that from now on we had better start having agents obtain arrest warrants if they are going to arrest someone in their home.

Unidentified Justice: Are you suggesting then that it goes all the way down to the district court, and that if one district judge has so ruled, that is what the law is in the district?

Mr. Walter: No, Your Honor.

I am not suggesting it is the law that is in the district, but if as a result of that district court judge's announcement, the government in the form of the United States Attorney's office takes the position that they are going to institute now a warrant requirement, then I think that it is incumbent upon the United States Attorney's office to disseminate that information to various law enforcement agencies that when you come to us for purposes of seeking a complaint or authority to arrest someone, that we are going to require arrest warrants, and I think that is what happened in this case.

This is not the situation, as the government would paint it, that there is a fast-moving series of events by these law enforcement officers who were fearful for their life.

These agents, Pickering and Hemingway, they conducted a thorough investigation, and as the result of that investigation they went to the United States Attorney's office and sought approval for a complaint.

They were in the sanctity of the United States Attorney's office when they had to make this momentous decision about whether or not they were going to require a warrant, or request a warrant.

They did make that decision in favor of obtaining an arrest warrant for Dodd, who was the co-defendant in this case.

There is absolutely no reason to believe that there was any difference between Oscar Dodd and my client, Raymond Johnson, with respect to obtaining a warrant, and I think... and I was precluded from exploring this at the trial court level, and I think the reason for that was is that the Assistant United States Attorney informed the Secret Service agents that there wasn't sufficient probable cause and that they had better go out and interview Mr. Johnson, and hopefully obtain some admissions from Mr. Johnson, so that then they could come back and they would have sufficient probable cause for an arrest warrant.

Unidentified Justice: Mr. Walker... oh, excuse me.

As a matter of administration of the U.S. Attorney's office, as a practical matter, since they know they might come with their cases before the same judge, just as a practical matter, wouldn't they try to be prepared to meet that judge's standards even if they didn't agree with them?

Mr. Walter: Yes, Your Honor except that--

Unidentified Justice: Why should that be binding on anybody else?

I am not quite sure why you suggest that that has any significance in the whole scheme of things.

Mr. Walter: --Well, again, I think it is significant in terms of the... of the knowledge properly chargeable to the law enforcement agents in connection with the retroactivity issue.

The government argues basically good faith, or it is a law enforcement due process.

Law enforcement officers must have notice of this particular requirement, which was to obtain an arrest warrant.

I contend that based upon the... what happened in the Ninth Circuit at this point in time, that the law enforcement officers did have notice, and I submit that if--

Unidentified Justice: They had notice that that particular judge would react that particular way.

Mr. Walter: --That's correct.

The problem is is that you don't know which judge the case is going to be assigned to, so--

Unidentified Justice: That's right.

So it is something like the converse of the strength is the strength of the weakest link.

Mr. Walter: --Well, Judge Ferguson... although Judge Ferguson was the only one that I could find that articulated those views, I know that he had several... I know he still does, has several of his fellow judges who... at least two or three or four that come to mind, that had a great deal of respect for Judge Ferguson, and probably in a similar situation would have gone... would have held in the same fashion as Judge Ferguson would have.

Unidentified Justice: Mr. Walter, I think it is way over 20 minutes down into your 30 minutes.

I ask once again, and so help me I will never ask it again, are you going to get to Payton and Hankerson and the other cases that considered retroactivity--

Mr. Walter: Yes, well--

Unidentified Justice: --which is the point, the reason this case is here?

Mr. Walter: --That's correct--

Unidentified Justice: Are you going to get to it?

Mr. Walter: --Yes, Your Honor.

I will try.

In terms of the retroactivity analysis in this case, I submit that it is not... it wasn't necessary for the Ninth Circuit opinion to hold that Payton was retroactive.

The case could have been decided on the basis that Prescott, which was the... or, I'm sorry... yes, Prescott, the Blake case applying Prescott retroactively in the Ninth Circuit.

Unidentified Justice: But that case is not here.

Mr. Walter: Well, the government--

Unidentified Justice: The case that's here is the opinion and judgment of the court of appeals in this case.

Mr. Walter: --That's correct, Your Honor, and I--

Unidentified Justice: And no other case.

Mr. Walter: --and I believe that this Court can affirm the Ninth Circuit Court of Appeals judgment on the limited basis that Prescott applied retroactively in this case, the Johnson case, and it is not necessary to decide whether or not Payton applies retroactively, because that was clearly the law of the Ninth Circuit, at least in my view, at the time.

In conclusion, Your Honors, the government's position in terms of marginal deterrence and not resolving Fourth Amendment issues in favor of obtaining a warrant or its approach in terms of analyzing the state of the law suggest that the law enforcement can adopt a wait and see attitude or somehow they can be purposefully ignorant until a Ninth Circuit Court of Appeals decision or opinion of this Court is handed down which clearly settles a particular question.

I think that that is something that should not be condoned by this Court.

I think that the law enforcement officers in the federal system are surrounded by very capable and competent lawyers, and those lawyers are under an obligation... As indicated in the government's brief, the Department of Justice, after the Second Circuit decision, issued a policy memorandum advising law enforcement that they should now seek arrest warrants.

I think that the law enforcement agencies, because they have access to counsel, should rely on counsel, counsel should be able to interpret the particular decisions and arrive at some form of action which will be consistent with what the law will be.

Thank you.

Unidentified Justice: Mr. Walter, there is no finding here that the officers acted in bad faith.

Is that right?

Mr. Walter: There is no finding by any court.

That's correct.

Unidentified Justice: Right.

Mr. Walter: Based upon the circumstances of what happened at the home, and how they entered, and the search that was... that was conducted once they were inside the premises, and I truly believe it was a search... the government calls it a security check... they did search each room in the house, they did not go into closets or drawers... also, the manner in which they waited, I think, is--

Unidentified Justice: You are not suggesting that that amounts to bad faith, are you?

Mr. Walter: --Yes, I am, Your Honor.

They... they observed my client and his wife in a car drive into the driveway of their home.

They purposely waited.

If they were truly intent upon only interviewing my client with respect to what his involvement was, they could have met him as soon as he got out of the car.

Instead, they surveilled him, watched he and his wife go into the house, and then after they were in the house the agents went to the door, using a fictitious name.

My client came to the door.

They had their guns drawn.

They asked if they could go in, and he said, sure.

The guns were... The guns were drawn.

If they were truly worried... and then they conducted the cursory search of the home, and to show you how much time had elapsed, there was evidence in the record that when one of the agents went into the bedroom, that my client's wife was... was without clothing, and he requested that she dress and come out into the living room.

It takes some period of time for that to happen.

So, I don't understand, and I do attribute bad faith to these agents, why they waited until they were in the house.

I strongly suspect, and the government calls it speculation, and it probably is speculation, these agents knew that my client had a history of heroin addiction.

I think what the agents were trying to do is obtain access into that house after allowing a sufficient period of time to elapse from the time they got out of the car to get into the house, hoping that they could find him in possession of some contraband so they could use that and trade upon that in terms of the case that they had investigated against him.

So, I do attribute bad faith to them.

Thank you.

Chief Justice Burger: Very well.

Do you have anything further?

ORAL ARGUMENT OF ELLIOTT SCHULDER, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Schulder: One or two brief points, Your Honor.

I would like to address the question of the fact that this case is on direct review again, Mr. Justice Stevens.

As a matter of purely exclusionary rule policy, leaving aside Article III considerations, the first litigant to establish the rule in a particular case shouldn't benefit either from the new rule, but as the Court established in Stovall versus Denno, sound policies of decision-making rooted in Article III require the Court to apply the new rule to that particular litigant.

So that in effect it was really Payton who got a windfall if we are looking at it simply from the exclusionary rule policy standpoint.

Unidentified Justice: Let me test that with you for just a moment.

You recall in his opinion in Desist, Justice Harlan draws a distinction between a court of law and a superlegislature, and if you treat the decisions of this Court as creating new law just out of whole cloth as a superlegislature could, then you can justify that in terms of policies of the exclusionary rule, but supposing in the second argument of the Payton case... it didn't happen this way... somebody had done some original historical research and found that the Framers of the Fourth Amendment, some unambiguous language that said, we don't intend to let anybody arrest anybody in his home without a warrant, so that at the time of the decision it was clear that the Court wasn't making some new rule of law like a superlegislature, but was announcing what had always been the law but had not been perceived to be before, and had been the law since the Constitution was first adopted.

Would you still make the same argument?

All the other policy things are the same.

The officer didn't know about it at the time he entered the home, and so forth.

Mr. Schulder: Well, if no one else knew about this particular piece of history--

Unidentified Justice: Right.

Mr. Schulder: --and everyone had relied on it through the years--

Unidentified Justice: But the fact of the matter is that what the Court did is not make law.

It merely discovered what the law had been since the Constitution was adopted.

Would your argument be the same?

Mr. Schulder: --Yes, it would.

Yes, it would.

Another point I would like to make just very briefly is that there are occasions, as in Payton, where the Court does take more than one--

Unidentified Justice: Are you troubled at all when you make the same argument there, that different litigants whose cases are pending at the same time, only one of them gets the benefit of a rule of law that was part of our constitution ever since it was adopted?

Does that bother you at all?

Mr. Schulder: --It doesn't bother me in the context of the exclusionary rule, where the social costs of exclusion are so great.

I would also like to just address myself to the fact that the Court took both Payton and Riddick's cases up, and it sometimes does that--

Unidentified Justice: Well, Mr. Schulder, there is a possibly real matter, the District of Columbia code involving civil rights, a whole provision was lost in the revision, and years later, something like 30 years later, it was found, and this Court said it was the law all along.

That is what I think Justice Stevens was talking about.

There was no new law.

Going back to--

--It was a statute that was lost.

Going back to the hypothetical suggestion, is there any evidence that from 1790 until the Weeks case, that anybody involved in drafting the Constitution or writing the Federalist Papers or anything else ever thought that a court had authority to exclude the evidence of a dead body, the victim of a murder, or pistols, or heroin, or what-not?

Mr. Schulder: --Not that I'm aware of, Your Honor.

In fact, one of the points involved here is that we are talking about the exclusionary remedy here, whether the remedy should be applied, not whether the substantive right was or was not the law, however we may want to define that.

The Court will sometimes, as I was about to say in reference to Justice Stevens' earlier question about why the Court may take two cases or more, there may be certain instances where there are different factual settings in which the Court may want to examine a particular issue.

For example, in Payton's case, I believe Payton was not at home and Riddick was.

I don't suggest that that is the reason the Court took both cases, but there are several... there are occasions when the Court may want to examine a difficult question by... by looking at different factual settings in which that issue may arise.

Unidentified Justice: Wouldn't you agree, though, that there are... maybe you would say it is outweighed by the costs and the interest of law enforcement, but isn't there at least an interest in treating identically situated litigants alike in a court of law?

Isn't there some interest in doing that?

Applying the same rule to two litigants from different parts of the country who have the same problem?

Whatever happened to them happened at the same time in the federal system.

Isn't there some interest in having them treated alike?

Mr. Schulder: Well, but--

Unidentified Justice: Some interest, sometimes called justice?

Mr. Schulder: --Well, but Article III would require the Court to treat one litigant one way and another litigant--

Unidentified Justice: And the law enforcement policy of no deterrence and all would say, well, we can forget about the other fellow?

Mr. Schulder: --That's correct.

Unidentified Justice: Yes.

Well, on several of the opinions announced this morning, isn't there an indication that for a significant period of time, litigants similarly situated in different circuits were treated differently until we resolved the conflicts with today's opinions in four or five of the cases decided this morning, announced this morning?

Mr. Schulder: That's correct.

Unidentified Justice: I suppose in all those cases in which the judgments are not final, they are subject to re-examination, so they could all be treated alike.

After a judgment is final, the problem is a little different.

Mr. Schulder: Well, I don't believe those cases involve the remedy of exclusion of reliable evidence in criminal trial, Your Honor.

Thank you.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

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Brown v. Louisiana - Oral Argument

Thu, 13 Sep 2012 21:32:17 +0000

Case:

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Media File:

79-5364_19800325-argument

Related Transcript:

79-5364_19800325-argument

Featured:

Hankerson v. North Carolina - Oral Argument

Sun, 08 Aug 2010 17:07:06 +0000

Case:

Hankerson v. North Carolina

Media File:

75-6568_19770223-argument.mp3

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Transcript:

Argument of Lawrence G. Diedrick

Chief Justice Warren E. Burger: We will hear arguments next in 75-6568, Hankerson v. North Carolina.

Mr. Diedrick, you may proceed whenever you are ready.

Mr. Lawrence G. Diedrick: Mr. Chief justice, may it please the court.

I am here representing Johnny Hankerson who is the petitioner in this case, to petition this court for certiorari from a Supreme Court decision in North Carolina against him.

The question we content and present it here is where the Supreme Court of North Carolina erred in not applying Mullaney retroactively.

Since the doctrine of Mullaney as relates to petitioner?s case greatly affected the fact finding process, the reliability of the fact finding process.

The State Court held that by raising the decision of Mullaney, the Due Process Clause of the Fourteenth Amendment prohibits the use of their long standing rules in homicide cases, that a defendant in order to rebut the presumption of malice must prove to the satisfaction of the jury that he killed in the heat of sudden passion and to rebut the presumption of unlawfulness that he killed in self defense.

They held that those instructions as they were given in our case violated the concept to Due Process announced by this court in Mullaney.

However, they decline without further guidance from this court to apply it retroactively.

The petitioner contends that the main determination to be made by this court in whether or not to give Mullaney retroactivity is whether or not the major purpose of the new constitutional doctrine as to over come an aspect of a criminal trial that substantially impairs its truth finding function.

The petitioner contends that in order to do that this court must closely scrutinize the major purpose which it held Mullaney to serve.

This court in its opinion on Mullaney relied heavily on Winship.

This court further, in Ivan held Winship to be retroactive.

However, the petitioner contends that this court in its own language in Mullaney, said that the rule that -- whether the major purposes of Mullaney was to protect the integrity of the requirements of the burden of proof beyond a reasonable doubt being carried by the prosecution in criminal cases.

It went on further to say that this major purpose to be served by this rule was at even greater purpose than that which was set forth in Winship and I quote from Mr. Justice Powell?s opinion at Page 700.

?Not only are the interests underlying Winship implicated to a greater degree in this case, but in one respect the protection afforded those interests less here".

In Winship the ultimate burden of persuasion remained with the prosecution although the standard had been reduced to proof by a preponderance of the evidence.

In this case, that is in the Mullaney case, by contrast that state has affirmatively shifted the burden of proof to defendant.

The result in a case such as this one where the defendant is required to prove the critical fact in dispute is to increase further the likelihood of an erroneous murder conviction.

Therefore, the petitioner contends that this Court has already held in its decision of Mullaney that the major purpose to be served by that rule was to correct an error in the fact finding process, because they have stated this to increase further likelihood and rated as to do away with the increase of the further likelihood of an erroneous murder conviction.

Of necessity in determining whether or not to apply any of these new constitutional rules retroactively, the court must look at prior decisions and whether or not they have given those decisions perspective only or retroactive applications.

However, the petitioner in this case contends that you need only look to Ivan as far as it relates to the case of the bar, because of the fact that Mullaney says that the interest to be protected in Mullaney itself are greater than those on Winship.

That, here, it is not only proof beyond a reasonable doubt to be protected but further that it places the burden solely on the state to carry this burden.

That is to say in the Winship case it was proved by a preponderance of the evidence but at all time that proof rested solely upon the prosecution.

In Mullaney, it removes that burden of proof or the main rule which was corrected by this court in Mullaney, move that burden of proof or shift to that burden of proof to the defendant.

In the main case, or the Mullaney case, this court stated that in main itself, the prosecution was required to prove the absence of self defense beyond a reasonable doubt.

Now, in North Carolina until the Hankerson decision, that is the case which is at the bar, the defendant himself had to satisfy the jury that he did act in self defense.

That is to say that the burden of proof was shifted from the state to the defendant to come forward and satisfy the jury of the four things necessary for them to return the verdict of acquittal on the grounds of self defense.

So, the petitioner honestly contends that while a review of all of the other cases involving retroactivity and being applied perspectively is important.

This court need look no further than the language of Mullaney and applying it with Ivan and Winship.

Unknown Speaker: In this case under the prior North Carolina Law until changed by the Supreme Court in this case, there were two separate matters in which the purpose of persuasion at least was shifted to the defendant.

First, the absence of malice which would reduce the homicide to manslaughter.

Is that correct?

Mr. Lawrence G. Diedrick: From second degree murder to manslaughter.

Unknown Speaker: Second, the question of self defense which if true or if the jury was satisfied by the defendant would wholly acquit the defendant.

Is that correct?

Mr. Lawrence G. Diedrick: Yes, Your honor.

Unknown Speaker: And the North Carolina Supreme Court that treated them both alike and as both covered by Mullaney, did it not?

Mr. Lawrence G. Diedrick: Yes it did.

Unknown Speaker: And both were involve in this particular case?

Mr. Lawrence G. Diedrick: That is correct, Your Honor.

Unknown Speaker: Yet Mullaney did not involve any matter that would have been on complete defense to any charge of homicide, did it?

Mr. Lawrence G. Diedrick: It did not but I would argue that it addressed self defense.

Unknown Speaker: That is self defense as in this case or insanity as in the Ivan case or someone.

Mr. Lawrence G. Diedrick: It did not directly but I would argue that it did direct itself to that by stating that main had already had the rule which required the state to prove beyond a reasonable doubt the absence of self defense.

Unknown Speaker: But it did not say that that rule is constitutionally required, did it?

Mr. Lawrence G. Diedrick: It did not, but it analogized it to the rule of proving heat of passion and held that to be the way, main had it constitutionally prohibited.

Unknown Speaker: One involves elements of the offense that state has to prove and the other involves an affirmative defense to the commission of any crime and that would be duress or insanity or self defense depending upon the crime.

Mr. Lawrence G. Diedrick: I would argue differently, Your Honor, I would tell the court that one of the necessary?

Unknown Speaker: But as a matter of that is correct, is it not?

One does involve mitigations of the degree of the homicide and the other does involve a complete exoneration of any criminal offense.

That is correct.

Mr. Lawrence G. Diedrick: That is correct Your Honor, but they both require the absence of elements in order to rebut the presumption of unlawfulness and unlawfulness is an element of homicide in North Carolina.

Unknown Speaker: But unlawfulness is an element of manslaughter.

Mr. Lawrence G. Diedrick: That is correct, Your Honor.

Unknown Speaker: There is no unlawfulness if it is self defense.

There is no unlawfulness if it is a killing in a course of warfare or legal execution or by somebody who is insane.

There is just no unlawfulness, correct?

Mr. Lawrence G. Diedrick: That is correct, but by statutory and by case law definition of homicide in North Carolina, an element of it is not the lack of insanity whereas an element of the offense in North Carolina is unlawfulness.

Therefore, I would argue to you that the judgment of acquittal or virtue a plea of self defense is a negative of a necessary element.

That is the elements are both malice and unlawfulness, not the lack of insanity.

That is not an element.

Both of these address themselves to defenses involving these elements and I would argue to you that the North Carolina Court in adapting Mullaney and making it applicable to our law properly did so because it says that this element of unlawfulness used to not be inferred but it was actually presumed and that it was up from the use of a deadly weapon and it was up to the defendant to rebut that presumption through self defense.

And that the elements of malice was actually presumed from the use of a deadly weapon and this had to be rebutted by the defendant through the use of his defense of heat of sudden passion.

Unknown Speaker: Mr. Diedrick, do you think this sudden passion point is here at all?

Mr. Lawrence G. Diedrick: Do I believe it is properly raised by the facts?

Unknown Speaker: As I understand your Supreme Court on that particular point, the court said is a matter state law, there wasn?t any evidence at all of the heat of passion and so the issue was not even before them.

Mr. Lawrence G. Diedrick: I did not understand it to be that way, your Honor, I thought they held that?

Unknown Speaker: It says as a matter of state law, we know that there is no evidence in this case of the killing in the heat of passion on sudden provocation, therefore, this issue is not properly presented as was in Mullaney.

There could not consequently be any Mullaney error prejudicial to the defendant on this aspect of the case.

Do you say that it is unconstitutional for a court to demand at least that the defendant present some evidence, at least present the issue?

Mr. Lawrence G. Diedrick: Well, I am arguing that there was that issue presented by the facts in this case.

Unknown Speaker: I know but they ruled it or they were not.

Let's just -- what I am really asking you, suppose the court was right here that defendant had not presented any evidence of it but that he had to or his heat of passion defense would not be any good.

Would that be constitutional?

Mr. Lawrence G. Diedrick: I think it was, I think the Mullaney decision said when properly presented.

It has to be facts.

Unknown Speaker: Now you are on the heat of passion point, the only way it could properly be here is if we disagreed with your Supreme Court on the facts.

Mr. Lawrence G. Diedrick: That is correct, Your Honor, but I would argue to the court that defense certainly should be available or actually not the defense, the lack of it should be available when a knife is put at somebody?s throat.

That certainly should be fact sufficient from which heat of passion could arise.

Unknown Speaker: Well, your Supreme Court did not think so.

Mr. Lawrence G. Diedrick: Well, I would disagree with the Supreme Court.

Unknown Speaker: Are you saying that defendant does not have to present any evidence of any kind with respect to the heat of passion issue?

Mr. Lawrence G. Diedrick: I would say that if the state?s evidence in itself would present facts from which this could arise but here the main thrust of the state?s case was a exculpatory statement.

That is statements made by the defendant himself, his confession, his statement of how the incident occurred in his own statement brought forward.

I would argue the defense was self defense and the presence of the heat of passion, therefore, the absence of malice which would require these to be properly submitted to the jury.

To answer your question, certainly there could be instances and there are many instances in which these two things are not really an issue.

That the facts do not properly raise it but certainly the state?s evidence, not only in this case but in many cases brings those forward.

Unknown Speaker: So you rely on the state?s evidence not on any facts introduced on behalf of the defense?

Mr. Lawrence G. Diedrick: I would rely on both, but I would say that the state?s evidence in this case properly brought forward those issues.

Unknown Speaker: And you disagree with finding of the North Carolina Court as pointed out by Justice White?

Mr. Lawrence G. Diedrick: Yes, I disagree because I think that as I answer Justice White, that any time you have a factual situation that shows a knife being put at somebody?s throat, certainly the offense of heat of passion could probably be raised.

Unknown Speaker: If we should agree with the finding of the North Carolina Supreme Court, would the retroactivity issue still remain in this case?

Mr. Lawrence G. Diedrick: I would argue it would because it was self defense.

Unknown Speaker: But we have never held the Mullaney (Inaudible) applied to self defense?

Mr. Lawrence G. Diedrick: I would say the language is the same, if it please the court, it is negating of a necessary element, and in Mullaney.

Unknown Speaker: Mullaney is retroactive because of Winship.

Mr. Lawrence G. Diedrick: In Mullaney itself they spoke of the fact that main in the past, place the burden on the state to prove the absence of self defense from the evidence of beyond reasonable doubt, and saying that absence of the heat of passion would be no greater burden.

Unknown Speaker: So your view is that the retroactivity issue remains in any event?

Mr. Lawrence G. Diedrick: Yes sir.

I think the main thing that I am trying to point out is that when you talk about insanity or alibi or anything like that, you are not talking of elements, you are not speaking of elements of the offense.

Both malice and unlawfulness are elements of the offense of homicide which the state by its charge in this case placed the burden on the defendant to satisfy the jury of the absence of, and that is why we would argue it is constitutionally prohibited.

It would have necessity in light of Ivan and Winship have to substantially affect the fact finding process and therefore fortunately be given full retroactivity.

Chief Justice Warren E. Burger: Mr. Hensey.

Argument of Charles M. Hensey

Mr. Charles M. Hensey: Mr. Chief Justice and may it please the court.

The State of North Carolina, of course, is quite concerned over the reach and the scope of your decision in the Mullaney case.

The State of North Carolina feels that its Supreme Court was essentially correct in its ruling on the retroactivity portion of the Mullaney opinion.

The state feels that the Mullaney opinion should not be applied retroactively by this court.

Now, the state recognizes, of course, the rule that when the primary purpose of the new constitutional doctrine is to substantially improve the reliability of the fact finding process that more often than not you have held that type of decision to be retroactive.

However, the State of North Carolina would argue in this case that your Mullaney decision because it was as we say on the fringes more or less of the question of how much proof is required in a criminal case and who has the burden of persuasion and what not, that this decision and the changes that it made in the rules relating to burden of proof on affirmative defenses has not brought such a dramatic improvement in the fact finding process so as to require the automatic retroactivity of this decision.

The state of course has cited the court to certain psychological studies in its brief concerning jury perceptions in criminal cases and where in many instances, the juries have been quite reluctant to convict and have a much higher standard beyond a reasonable doubt and have a much higher standard in where self defense is right, and of course as this court pointed out not too long ago in the death penalty cases, that jury nullification of death penalty or cases involving the death penalty in many instances has brought about the change that society recognizes now in the imposition of the death penalty.

The point, I am trying to make of course is that juries are very knowledgeable and very sensitive and are quite perceptive and the state feels that the changing of the rules, the burden of persuasion by the Mullaney case has not significantly improved the fact finding process.

Therefore, the state feels that this court can quite legitimately and properly consider the other two factors of justified reliance on the part of the state and the impact that retroactivity would have on both State of North Carolina and on other states similarly situated.

Of course, the State of North Carolina feels that a retroactive application of Mullaney would have an almost disastrous impact on North Carolina.

There are something over a thousand people currently in the North Carolina prisons involving murder type prosecutions, while perhaps not all of them would ultimately prevail nevertheless, surely petitions would have to be heard either of a post conviction type or a federal habeas corpus type.

The expense in both dollars and cents and prosecutorial time in dredging up old cases that everybody thought had long been in repose, some 15 or 20 years old.

The difficulty of finding the transcripts of the cases that perhaps were not appealed, does the court reporter still have the records, if she or he has died, have the records been preserved.

How in the world, I suppose it can be done but it would be an extremely difficult, costly and time consuming process.

Unknown Speaker: These would involve all who were convicted of second degree murder and even all who were convicted of manslaughter if a defense of self defense had been interposed.

Mr. Charles M. Hensey: That is my understanding assuming that this court does not go off on the distinction that you were making earlier about whether this was properly presented.

But assuming you adopt the North Carolina Court?s analysis, yes.

Now, as I understand it, probably the first degree murder convictions would survive because you have to prove the element of premeditation and deliberation on the felony or what not beyond a reasonable doubt.

But in the second degree case, where either an involuntary manslaughter issue was presented or a self defense issue was presented and possibly if this court should go so far as to extend this doctrine into other areas such as entrapment or what not and that type of defense was raised then possibly even there.

Unknown Speaker: Well, just down there, within the meets and bounds of the decision of the Supreme Court of North Carolina would be every second degree murder conviction in which involuntary manslaughter defense or mitigation was an issue and also even a manslaughter conviction in which a self defense was an issue.

How many --

Mr. Charles M. Hensey: There is no way to identify these numbers.

The statistics kept by the Prison Department and the records kept by the Prison Department simply do not permit identification of this.

They have in the records what is known as the prisoner?s version of what happened but of course this is not a transcript of the trial.

And the only way I know of would be to get a transcript of every one of those trials, and see what issues were presented.

Unknown Speaker: How many gross numbers are involved?

Mr. Charles M. Hensey: Well, we are talking about around a thousand in total.

Unknown Speaker: That is second degree of manslaughter conviction.

Mr. Charles M. Hensey: No, my recollection is that we are talking around about 700 second degree type or below.

Now, of course some of these people might be out on parole obviously wherein whether or not they would have a right to raise this point.

What we are saying though is that it is going to be a very expensive, difficult and time consuming manner.

That would have a devastating impact on the administration of justice in the State of North Carolina.

Unknown Speaker: Your brief states that there are 722 inmates as of June 10, 1975 who had been convicted of second degree murder and you have cited a North Carolina case?

Mr. Charles M. Hensey: Well, that is what the North Carolina Supreme Court in Hankerson identified.

Those were the numbers that they identified.

Unknown Speaker: In addition to 269 inmates convicted of first degree.

Mr. Charles M. Hensey: Right, no, I do not think we will have any problems with first degree people.

We are going to have a lot of problems with the second degree people and any type of self defense gets into that.

Justice Byron R. White: Mr. Hensey, the state did not cross petition here, I take it?

Mr. Charles M. Hensey: No, sir we did not.

We thought about it and finally decided.

Justice Byron R. White: I take it then the question of whether Mullaney reach his self defense just does not open here.

Mr. Charles M. Hensey: Well, I did not think it was open Justice White until I heard the questions this morning.

Justice Byron R. White: Well, you did not think that you must have sought Mullaney covered it.

I am talking about a matter of jurisdiction, not a matter whether we may properly decide in this case.

Mr. Charles M. Hensey: Are you talking about the fact that voluntary manslaughter was not properly presented?

Justice Byron R. White: I am talking about the fact that your Supreme Court said that Mullaney applied self defense.

Mr. Charles M. Hensey: Yes sir.

Justice Byron R. White: And you did not cross petition challenging that?

Mr. Charles M. Hensey: No, I did not because first of all, I was under the impression that I was bound by the interpretation of my court.

Justice Byron R. White: What you mean is a matter of whether you had the authority to attack your Court?

Mr. Charles M. Hensey: Certainly, our court held as a matter of state law that there was absolutely no distinction between the burden of proof required for voluntary manslaughter and the burden of proof required for self defense.

Justice Byron R. White: I understand why you might not, but the fact it seems to me that the question of whether Mullaney covers self defense in North Carolina that issue just is not here, you did not petition raising it, and certainly your colleague -- and to support the judgment you are not entitled to present it either because that will give you a bigger judgment.

Mr. Charles M. Hensey: That is right.

Quite frankly, I just did not perceive this to be a problem until this morning and I thought that by the interpretation of our State Court and secondly in the trial of Hankerson, a manslaughter issue was presented to the jury.

A manslaughter issue was presented; a self defense issue was presented.

Therefore, I thought by having both issues presented to the jury by the Supreme Court of North Carolina saying there all the same.

Justice Byron R. White: The applicability of Mullaney to self defense may vary depending on the state.

Mr. Charles M. Hensey: It may very well.

Justice Byron R. White: And you say here the reason you sought was a closed issue, was that your court rule that self defense and provocation should be treated the same in terms of burden of proof.

Mr. Charles M. Hensey: Precisely, the standard in North Carolina which is proof to the satisfaction of the jury is the same in both of these matters.

And our State Court has so held and as I understood the major question of course was retroactivity.

The ancillary question that I had raised in my brief is that perhaps the Mullaney rules do not even apply to North Carolina at all.

That perhaps the satisfaction of the jury test means something less than the preponderance of the evidence.

Justice Byron R. White: In that point were you not arguing the same thing that the concurrent opinion argued?

Mr. Charles M. Hensey: That is correct.

Justice Byron R. White: And do we not have to interpret the majority as having rejected that?

Mr. Charles M. Hensey: Yes sir and of course, I recognized that in my brief that I may very well be foreclosed from this argument.

Justice Byron R. White: That is a North Carolina Law Court.

Mr. Charles M. Hensey: Yes.

Justice William J. Brennan: So the North Carolina Supreme Court, the majority was holding what it understood the federal constitution to require on the Mullaney case.

It was not construing state law, was it?

Mr. Charles M. Hensey: This would be my distinction that they interpreted the North Carolina Standard in view of what you gentlemen had said the constitution means.

Justice William J. Brennan: That was construing what a Due Process Clause of the Fourteenth Amendment requires in the light of the Mullaney case.

Mr. Charles M. Hensey: Precisely.

Justice William J. Brennan: That was not deciding a North Carolina Law.

Mr. Charles M. Hensey: Not deciding a question of what satisfaction of the jury means in terms of North Carolina Law.

Justice William J. Brennan: And since it affirmed the conviction in this case, you are entitled to make any arguments you want in upholding the decision to affirm this conviction, are you not?

Mr. Charles M. Hensey: That was my feeling Justice Brennan and that is why I made the argument of course.

Justice William J. Brennan: You are flattering me and elevating me.

Mr. Charles M. Hensey: Excuse me, I apologize sir.

This is my first time here, my little list.

Justice Byron R. White: General Hensey, May I just define that a little bit?

Is it not correct that the court decided a federal question as to what Mullaney requires for the future and then in deciding whether or not to affirm this conviction, they had to decide as a matter of North Carolina Law what the instruction of the jury on satisfaction properly meant and that was the North Carolina question.

Mr. Charles M. Hensey: That was the North Carolina question.

Justice Byron R. White: And that differed from the federal requirements.

Mr. Charles M. Hensey: Quite a bit, because of course in Mullaney, you all were construing a rule of law in main, that as I understand it had already been construed by the Main Supreme Court and of course, as I have attempted to argue in my brief, the North Carolina rules are quite a bit different from the rules in main.

We do not have this conclusive presumption of malice, and I guess its the Morgan tradition that really what North Carolina has is more of an evidentiary influence of malice, that when certain things are shown then the influence of malice arises and the production burden then is shifted on the defendant to come forward and present evidence.

Justice Byron R. White: General Hensey, let me us ask, one other question.

Do you agree with your opponent that the heat of passion element is in fact presented by this record under the manslaughter part as opposed to the self defense issue?

Mr. Charles M. Hensey: Well, certainly up until about 15-20 minutes ago that was my understanding of the posture of the case.

Justice Byron R. White: And that the evidence of the knife at the throat will be sufficient to raise that face of the case as well the self defense.

Mr. Charles M. Hensey: Yes, certainly it is my feeling that there was some evidence in the case and of course, North Carolina does require that there be evidence in the case before the judge instruct.

Justice Byron R. White: What do you do with what the Supreme Court said?

Mr. Charles M. Hensey: That it was not properly presented?

Justice Byron R. White: Well, there was no evidence, I have read the -- you heard the passage.

Mr. Charles M. Hensey: Yes, well, I do not quite know what I do with it but it is my feeling that the issue is here.

As I pointed out earlier that the similarity nay the identity of the rules of law and the standards and the burdens in North Carolina.

I feel like get this issue up here.

Certainly, the trial judge thought it was there.

He instructed that jury and I take it that jury could have returned a verdict of voluntary manslaughter under the instructions in this case.

Justice John Paul Stevens: What page of the Appendix are we talking about that the Supreme Court said it was?

Mr. Charles M. Hensey: 33.

Justice John Paul Stevens: 33.

Mr. Charles M. Hensey: 33, I believe.

First full paragraph.

Unknown Speaker: Mr. Justice Stevens is looking at the appendix.

How do you make the judgment to disagree with your court on this issue and accept the judgment of your court on other issues?

Mr. Charles M. Hensey: Well, for one thing on this issue that I am disagreeing with, it seemed like to me that the court was applying a federal principle that only you could ultimately decide the scope of.

Unknown Speaker: May I interrupt you right there, that the sentence Mr. Justice White read to you says, we note there is no evidence in this case of a killing in the heat of passion and that is probably a federal question, is it?

Mr. Charles M. Hensey: No, it is not and the only thing I can tell you is that I disagree with it.

Unknown Speaker: You are representing the state?

Mr. Charles M. Hensey: Yes, sir and I feel like that I have to make the best argument I can.

To conclude and summarize, that the state is more concerned about the potential retroactive application of your Mullaney case.

This is what we are most gravely concerned about and if this court could some how find its way clear to limit the retroactivity of Mullaney, the State of North Carolina would be very happy because by Hankerson hopefully, we have cleaned up whatever federal constitutional error might have been present in our rooms.

Unknown Speaker: Where would you draw the line?

Mr. Charles M. Hensey: On what sir, retroactivity?

Of course, I would draw the line as of the date, the decision was handed down and I realized this is a source of great controversy and that you draw the lines at varying dates, I would say that any case that was tried to a conclusion prior to the date of Mullaney should be allowed to remain.

Unknown Speaker: I think that North Carolina would even be happier and would be more interested in urging that Mullaney did not apply at all.

Mr. Charles M. Hensey: Well, this was going to be my next argument and by way of summary that obviously the millennium as far as I would be concerned here today would be for you all to hold that Mullaney never applied to North Carolina.

Unknown Speaker: But then you take that position without a cross petition?

Mr. Charles M. Hensey: Yes sir, without a cross petition.

Unknown Speaker: You can take it, do you think?

Justice Harry A. Blackmun: Well, you are arguing in support of the affirmance of this conviction, are you not?

Mr. Charles M. Hensey: That is exactly what I am arguing.

Justice Harry A. Blackmun: You are attacking the holding of your court.

You are not trying to support the judgment, you are attacking it.

Mr. Charles M. Hensey: Well, all I am saying is that the court may very well have misperceived and construed the sweep of your opinion in Mullaney, Mr. Justice Blackmun and as I understand, only you can say with finality that the sweep of your opinion possibly may apply to North Carolina.

As a representative of the state, I feel like it did not, I feel like our court painted with too broad a brush with your Mullaney decision and I feel like this is something that is legitimate, that this court should consider when it decides this particular case.

Justice Harry A. Blackmun: General Hensey, what really is the difference between as a matter of legal principle between the heat of passion argument and the self defense argument?

What is the argument you are making for us to draw distinction if we do reach it?

Mr. Charles M. Hensey: I can not say that there is any distinction myself.

Unknown Speaker: You really are not making a very powerful argument.

Mr. Charles M. Hensey: I am sorry Sir, I misunderstood your question.

Unknown Speaker: The question is, if you were permitted to argue that there should be a distinction drawn between self defense and heat of passion for Mullaney purposes, then I would say, well, what is the argument and I thought you said I do not have an argument.

Mr. Charles M. Hensey: Well, I am sorry sir.

I thought you were talking about in terms of state law concerning the burden of proof on those two affirmative defenses.

As I understand it as a matter of state law there is no different between the two and so far as the burden of proof.

Unknown Speaker: What is the different as matter of Federal Constitutional Law that you would urge us to consider?

Mr. Charles M. Hensey: Between self defense and heat of passion.

Unknown Speaker: When the burden as a matter state law is identical with respect to both of those matters?

Mr. Charles M. Hensey: Well, I would argue that in so far as North Carolina is concerned, where the burden is to the satisfaction of the jury on both of those affirmative defenses that satisfying the jury does not mean convincing by a preponderance of the evidence.

Unknown Speaker: I understand but that the argument applies equally to heat of passion and to self defense.

Mr. Charles M. Hensey: Yes sir.

Unknown Speaker: Is there any principled reason for distinguishing between heat of passion and self defense as matter of Federal Constitutional Law?

The North Carolina Supreme Court signed on and Mr. Justice White in effect has raised question, well, maybe there is one that we have not discussed.

Mr. Charles M. Hensey: That is what I thought you were asking a while ago Sir, and my answer is that I do not see any distinction either.

Unknown Speaker: What is the difference between self defense and insanity as an affirmative defense?

Mr. Charles M. Hensey: Well, of course self defense goes to the unlawfulness issue and the insanity goes to the malice element.

Unknown Speaker: Each one of them goes to the basic question of whether or not a criminal homicide has been committed.

Does it not?

Mr. Charles M. Hensey: Yes sir, it does.

One excuses because of the mental condition, the other excuses because of the threat to the bodily harm.

Unknown Speaker: Well, it is a justification.

Mr. Charles M. Hensey: It is a justification but it is not unlawful as what you are saying when it is self defense.

I quite frankly can see no distinction but you do have of course your Leland case which was a strange procedural animal and that the state had to find the man guilty beyond a reasonable doubt and then he had to come in and prove himself insane beyond reasonable doubt.

Of course, as I recall the opinion you said that was alright under those circumstances, and of course Argon has long since done away with that procedure to my knowledge.

Unknown Speaker: But there are many, many cases in states in which insanity remains an affirmative defense to be pleaded and proved by the defendant.

Mr. Charles M. Hensey: The one problem is of course looking at the text writers, is that there seems to be some questions; number one as to what an affirmative defense is?

What do you categorize as that?

Then of course they are all grades and shades of proof once you decide the thing is an affirmative defense.

I cannot give you a rational distinction between the insanity problem and the heat of passion or self defense problem except to say that it is there and apparently this court at one time or another has made those distinctions.

Thank you very much.

Chief Justice Warren E. Burger: Very, well.

Do you have anything further Mr. Diedrick?

Rebuttal of Lawrence G. Diedrick

Mr. Lawrence G. Diedrick: I just wanted to reply in rebuttal to his argument with reference to the severe impact it would have on the administration of justice.

Now, I do not have available to me any statistics of any state except for North Carolina which are present in his brief and which our court addressed itself to.

However, I think this statistics are un-meaningful without some type of guidance as to the number of those which are pleas, the number of those which were pleas and not guilty, the number of those which are actually first degree convictions, which are second degree convictions, which are manslaughter convictions.

Unknown Speaker: Well, it has separated the first degree, I thought from the second degree of manslaughter.

Mr. Lawrence G. Diedrick: I understood that he had but I am saying that before you can meaningfully answer that question you have to make that determination having all of that criteria available to you and most importantly which ones were upon pleas of not guilty and which ones were pleas of guilty.

Unknown Speaker: Somebody who pleaded guilty would have pleaded guilty with the knowledge and/or the advice of his lawyer as to what then State of the North Carolina Law was, and that he could certainly collaterally attack that guilty plea, could he not if these were made retroactive?

Because now the law has been changed and he could probably say he would never have pleaded guilty if it had been incumbent upon the state to prove these things rather than upon himself.

Mr. Lawrence G. Diedrick: But if that defense of self defense was available to him, I would argue to you whether under the state law was then affirmed by the defense was a burden upon him or whether it was not an affirmed defense that yes he would have had to -- with the counsel who made the determination whether or not the defense was available to him but I would argue to you that his plea of guilty was a waiver.

Unknown Speaker: Well, that is undoubtedly what the state would argue but there is certainly an argument on the other side, is it not?

Mr. Lawrence G. Diedrick: There could be, yes sir.

Unknown Speaker: Even attacking a guilty plea.

Mr. Lawrence G. Diedrick: There could be.

But the thing that I really would argue is this, if you take a factual situation like my case, the case at the bar in which all of the evidence is primarily exculpatory evidence which is statements of the defendant wherein he clearly brought forward lack of malice on his part, I would argue, which he clearly brought forward lack of unlawfulness because of the defense of self defense.

Reviewing all of the facts and circumstances in the case and weighing everything equally, I certainly argue to the court that the charge of the court in this case substantially affected the fact finding process.

If there are these 728 other cases, 3 or 4 or 10 which would have properly brought this forward and it makes no difference how severe an impact it would have on the administration of justice, it should be done because I would argue to you these people were unconstitutionally convicted, that they did not receive a fair trial, that they had a constitutionally prohibited burden placed upon them and regardless of the severe impact should be made available to them.

Thank you.

Chief Justice Warren E. Burger: Thank you Gentlemen.

The case is submitted.

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United States v. Peltier - Oral Argument

Thu, 23 Aug 2012 18:26:24 +0000

Case:

United States v. Peltier

Media File:

73-2000_19750218-argument.mp3

Related Transcript:

73-2000_19750218-argument

Transcript:

Argument of William L. Patton

Chief Justice Warren E. Burger: We'll hear arguments next this morning in number 73-2000, United States against James Robert Peltier.

Mr. Patton, before you proceed, I want to indicate to you and to other counsel in these cases being argued today that Mr. Justice Marshall reserves the right to participate on the basis of the filed papers, of course, and the tape recording of the oral argument.

Now, you may proceed whenever you are ready.

Mr. William L. Patton: Mr. Chief Justice and may it please the Court.

This is one of four cases that will be argued today concerning issues related to this Court's decision in Almeida-Sanchez against the United States decided June 21, 1973.

In Almeida-Sanchez, this Court held that warrantless searches of automobiles for concealed illegal aliens conducted without probable cause by border patrol agents on roving patrol violated the Fourth Amendment.

Each of these cases is here on writ of certiorari to the Ninth Circuit.

The questions presented in Ortiz and Bowen, Nos. 73-2050 and 73-6848, are whether Almeida-Sanchez should be extended to searches conducted at fixed check points and, if so, whether the extension should apply to searches conducted before the Ninth Circuit's decision in United States against Bowen.

The question presented in Brignoni-Ponce, No. 74-114, is whether the warrantless stop of an automobile by border patrol officers violates the Fourth Amendment and requires the suppression of evidence obtained as a result of the stop but without any subsequent search.

The sole issue presented in this case, United States against Peltier, No. 73-2000, is whether Almeida-Sanchez should be given retroactive effect.

The prior proceedings of this case are set forth in detail in our brief and I will only briefly summarize them here.

On March 7, 1973, respondent was indicted for possession of approximately 270 lbs. of marijuana with intent to distribute in violation of Title 21 of the United States Code.

He filed a motion to suppress the marijuana, claiming that the search of his automobile had violated the Fourth Amendment and that motion was denied after a hearing.

The evidence showed that on February 28, 1973, at approximately 2:30 in the morning, the respondent's automobile was stopped by border patrol agents on roving patrol near Temecula, California.

The stop occurred on Highway 395 at a point of approximately 70 air-miles north of the Mexican border.

The agents testified that they had stopped the respondent's car because he was driving an old-modeled car and because he appeared to be a Mexican man.

At the agent's request, the trunk was opened to permit them to inspect the presence of concealed illegal aliens.

Although no aliens were discovered, the agents did find 270 lbs. of marijuana in plastic bags in the trunk of the car.

The respondent was tried on stipulated facts.

He stipulated, among other things, that he possessed the marijuana with intent to distribute, and the stipulation contained a proviso that it would not have been entered into if his motion to suppress had been granted and he reserves his right to appeal the question “suppression motion.”

The District Court found the respondent guilty and sentenced him to prison term of one year and one day subject to immediate parole eligibility and to special parole term of two years.

The Court of Appeals sitting and back, by a 7-6 vote, reversed the conviction and remanded to the District Court with instructions to suppress the marijuana.

We conceded in the Court of Appeals that the search of respondent's automobile was invalid under this Court's decision in Almeida-Sanchez, but we urge there as we urge here that Almeida-Sanchez should not be given retroactive effect.

The majority in the Court of Appeals held that it need not reach the retroactivity issue because, in its view, Almeida-Sanchez did not establish a new rule.

The majority concede that numerous since its decision, since 1961, had contained language from which the government would infer that the Court would uphold a roving patrol search, but the majority distinguished this language as dicta apparently on the ground that many of these cases involve checked point searches.

The majority also conceded that, in 1970, it had upheld the roving patrol search in its decision in United States against Miranda and again in Almeida-Sanchez itself.

It also noted that the Tenth Circuit had uphold-- upheld a roving patrol search in Roa-Rodriguez, but the majority said these decisions enjoyed only a brief acceptance.

The decision of the Ninth Circuit is in conflict with United States against Miller, a decision of the Fifth Circuit which is pending before this Court on a petition for writ of certiorari in No. 73-6975.

The Ninth Circuit also reached the opposite result in United States against Bowen.

The only difference between Bowen and this case is that Bowen involved the checkpoint search and, there, the majority, again by a 7-6 vote, founded Almeida-Sanchez had overruled clear past precedent.

The Tenth Circuit has given Almeida-Sanchez retroactive effect in the case of checkpoint searches and, presumably, it would give a retroactive effect in the case of roving patrol searches.

We submit that Almeida-Sanchez did, indeed, establish a new rule that overruled past Court of Appeals precedent and a long-established practice and-- that under principles of this Court's retroactivity decisions and other principles of exclusionary rule policy itself, Almeida-Sanchez should not be given retroactive effect, that is it should not apply to searches conducted before June 21, 1973, the date on which it was decided.

Support for roving patrol searches prior to Almeida-Sanchez was both judicial and statutory.

Section 1357 of Title 8 authorized Immigration and Naturalization Service officers without a warrant, within a reasonable distance from any external border of the United States, to board and search any vehicle or conveyance for illegal aliens.

In regulations promulgate under the statute, the Attorney General had defined a reasonable distance from the border to be any point within 100 air-miles from an external boundary.

And, we believe that the statute alone, in the absence of a contrary judicial construction, would be sufficient basis for reliance by law enforcement officers and would present a retroactivity question and, that, we believe is the thrust of this Court's plurality opinion in Lemon against Kurtzman, declining to give retroactive effect to its prior decision holding a Pennsylvania statute unconstitutional that provided public aid to non-public sectarian schools.

But, we do not rely on the statute alone because the unconstitutionality of the statute was upheld in numerous decisions in the Fifth, Ninth, and Tenth Circuits.

The Ninth Circuit distinguished many of these cases as dicta, as I said, presumably on the ground that they involved checkpoint searches, but the language in those decisions was not so limited.

And, prior to Almeida-Sanchez, there was no distinction drawn in the case law between checkpoint searches and roving patrol searches, and the majority of the Ninth Circuit conceded that its cases contained language from which the government might infer that roving patrol searches would be upheld and that, of course, is precisely what happened.

The Ninth Circuit upheld roving patrol searches in Miranda and Almeida-Sanchez, the Tenth Circuit in its decision in United States against Roa-Rodriguez, and the Fifth Circuit in its decision in United States against Miller.

Mr. Justice Powell's concurring opinion in Almeida-Sanchez recognized this consistent judicial approval.

He wrote the roving automobile searches in border regions for aliens had been consistently approved by the judiciary, and Mr. Justice White's dissenting opinion also recognized this prior judicial approval for he observed that the Courts have consistently and almost without dissent come to the same conclusion that is embodied in the judgment that is reversed today.Respondent himself recognized, at the time of his suppression motion, that the state of the law sustained roving patrol stops and searches for concealed illegal aliens.

In the District Court, he contended that while it was permissible to stop and search for aliens, once border patrol agents discovered no illegal aliens, they then were required to go no further even though they observed the marijuana in the trunk of the car.

For example, at page 23 of the appendix, respondent's counsel say to the Court “now, if Agent Ansco had felt the bag to see if there was an alien in there, I would say, fine, we do not have an illegal search and seizure.”

Respondent did ask that his case be stayed pending this Court's decision in Almeida-Sanchez, but that is simply recognition that he needed a change in the law.

The only additional factors which could be required are either a prior decision by Court or additional Court of Appeals opinions, but neither requirement is sound.

There is no support in this Court's decisions for the proposition that a decision must overrule a prior precedent of this Court before a retroactivity issue is presented.

In Chevron Oil against Huson, for example, this Court declined to give retroactive effect to Rodriguez against setting a casualty even though Rodriguez had overruled only a long line of Fifth Circuit opinions.

Justice Potter Stewart: That's-- for example, what other cases are there, if any?

Mr. William L. Patton: Other than Chevron, I don't think of any--

Justice Potter Stewart: There aren't any, are there?

And, Chevron was a civil case, wasn't it?

Mr. William L. Patton: It was a civil case.

Justice Potter Stewart: Involving him.

Mr. William L. Patton: But in Linkletter, Mr. Justice Stewart, this Court indicated that it saw no difference between civil and criminal cases for purposes of retroactivity.

I think-- we believe that the majority opinion in Bowen in the Ninth Circuit is the correct analysis on this point.

Every issue cannot be brought to this Court and, by necessity, a number of important issues of law enforcement must be litigated in the Courts of Appeals.

Justice Potter Stewart: This issue was brought this Court a few many years ago in Carroll against the United States.

Mr. William L. Patton: Well, we disagree about that, Mr. Justice Stewart.

We believe that it's true, this Court's opinion in Almeida-Sanchez relied on prior Fourth Amendment precedent, but there was an intervening federal statute which we believe the law enforcement officers were entitled to rely on until Courts declared otherwise.

And, this issue was litigated in the Courts of Appeals for the Fifth, Ninth, and Tenth Circuits and the government never lost the issue.

Now, we rely on this Court's opinion in Lemon against Kurtzman that statutory or even judge-made rules of law are hard facts on which people must rely in making decisions and in shaping their conduct, and that's exactly what the border patrol did.

Roving patrols were extensively used in the Mexican border area prior to Almeida-Sanchez.

For example, we are informed that in fiscal year 1972, approximately 240,000 man-hours were devoted to highway surveillance of roving patrol searches-- roving patrol activities.

We believe that Almeida-Sanchez did establish a new rule, that it was a clear break with the past and, under this Court's retroactivity decisions and under exclusionary rule policy itself, it should not be given retroactive effect.

This Court's decisions have established three tests.

The first and most important of those is the purpose of the rule itself.

And, uniformly, this Court's decisions involving the exclusionary rule had declined to give exclusionary rule decisions retroactive effect.

Whether the rule, as viewed as directed at conforming police conduct or addendicating the right of privacy protected by the Fourth Amendment, in either case, there is no effect on the integrity of the fact finding process and neither purpose is advanced by retroactive application.

The second two-test, the extent of reliance by law enforcement officers and the disruption of the administration of justice that would result from retroactive application, are looked to only when the first-- when the purpose of the rule is neutral as to retroactivity.

As we've indicated, that purpose is not neutral but, looking to those tests, there was widespread reliance on the authority to conduct roving patrol searches and, as for disruption, there are approximately 40 cases in the Courts of Appeal that involve Almeida-Sanchez roving patrol issues.

There are an indeterminate number of cases in the District Courts and, of course, there would be a large number of cases affected in collateral attack proceedings if Almeida-Sanchez were given retroactive effect.

So, for all of these reasons, we submit that Almeida-Sanchez should not be applied to searches conducted before the date that it was decided and we submit that the judgment of the Court of Appeals should be reversed.

Chief Justice Warren E. Burger: Mr. Shapery.

Argument of Sandor W. Shapery

Mr. Sandor W. Shapery: Mr. Chief Justice and may it please the Court.

The main question that we're confronted with here is whether or not Almeida-Sanchez should be applied retroactively or prospectively.

However, before we should even approach that question, we must realize that the issue of retroactive-- retroactivity only applies to a new constitutional rule.

The dissenting opinion in Milton versus Wainwright, I believe the government will clearly agree, it sets out the test for determining whether or not a new constitutional rule is even stated by a decision of this Court and, that is, whether it overrules clear past precedent or disrupts a practice long-accepted and widely relied upon.

The third--

Justice Byron R. White: Do you think the statute authorizes-- authorized the search and escape?

Mr. Sandor W. Shapery: I don't feel that any statutes of the United States are greater than the constitution.

Justice Byron R. White: That isn't what I asked you, is it?

Mr. Sandor W. Shapery: I-- could you possibly rephrase the question?

I-- maybe it's my misunderstanding, but I feel that the statute--

Justice Byron R. White: I asked you whether a statute authorized the-- purported to authorize the search in this case.

Mr. Sandor W. Shapery: Read literally, the statute would purportedly authorize the search.

Justice Byron R. White: Had it ever been held unconstitutional before Almeida?

Mr. Sandor W. Shapery: I don't believe that the issue had even been presented in this Court.

Justice Byron R. White: Let's assume a statute, in so many words, authorizes a particular kind of search, and the officers who had been operating under and performing in accordance with its terms.

So, everybody held it unconstitutional and then the Court declares it unconstitutional.

Now, what about the retroactivity in that context?

Mr. Sandor W. Shapery: I think, to determine the retroactivity issue in that context, we should look at the statute itself, and whether or not the reliance on the literal interpretation of the statute was even reasonable and I feel that looking at this statute, 1357 Section a (1) and a (2).

Justice William J. Brennan: I don't think it was even reasonable, although the Courts of Appeals said it was.

Mr. Sandor W. Shapery: I don't think it was.

I don't think the Section a (3) being read devoid of the Fourth Amendment was reasonable in light of the fact that Sections a (1) and a (2) have recognized Fourth Amendment requirements of constitutionality.

Chief Justice Warren E. Burger: Are you suggesting that one of the border patrol officers reading the statute should have known that on its face, it was unconstitutional?

Mr. Sandor W. Shapery: No, I am suggesting that the attorneys that wrote the statute for the government were perfectly aware of the problem and, where aware of it, they were treading on, so to speak, thin ice in regard to this but saw this was a viable alternative and that they may step forward and take their chances until the question is presented to this Court.

It was submitted that this Court's decision in Almeida-Sanchez overruled past precedent. However, the test is clear past precedent.

We do not feel that one case prior to Almeida-Sanchez allowing a roving patrol to stop and search a car without probable cause or even reasonable suspicion that a criminal activity was at foot establishes clear past precedent.

As a matter of fact, the Ninth Circuit has held, with the exception of United States versus Almeida-Sanchez, that all other cases that ever addressed themselves to that issue required either probable cause to believe that the vehicle had contraband or illegal aliens, or that there was a reasonable certainty existed that contraband was aboard the vehicle at the time it entered the United States, or a reasonable certainty that the vehicle contained aliens or goods which had been smuggled into the United States.

This is the Ninth Circuit's own recognition of their prior case law.

Contrary to the Ninth Circuit, the Tenth Circuit and the Fifth Circuit have uniformly required reasonable or founded suspicion to stop a search prior to this court's decision in Almeida-Sanchez.

It would appear, therefore, that the Ninth Circuit is the only Court and that United States versus Almeida-Sanchez and United States versus Miranda are the only cases which held that the border patrol can make a roving stop and search of a vehicle without probable cause or founded suspicion or even any recognition of Fourth Amendment rights under the constitution.

On this basis, I feel that it can be hardly argued that this Court's decision in Almeida-Sanchez overruled clear past precedent.

The second test is did this Court's decision overrule a practice long-accepted and widely relied upon?

As I have pointed out, I feel that the reliance must be reasonable.

I do not think that the-- that illegal governmental activity should be allowed to establish constitutional precedent no matter how long it has been relied upon, and this is exactly what the government is asking to occur in this situation.

The government is relied on Section 1357 (a) 3 on its literal interpretation which is completely devoid of the Fourth Amendment to the constitution and it is unreasonable, in light of the fact that prior decisions of Circuit Courts have held that the same statute of a prior code section, 1357 (a) 1, applied the Fourth Amendment reasonable suspicion standard to interrogate an alien, and that was in the case of Au Yi Lau versus the Immigration and Naturalization Service.

Likewise, Section 1357 (a) 2 applied the Fourth Amendment probable cause to arrest an alien, and Yam Sang Kwai, another Circuit Court decision.

On that basis, I feel that it is unreasonable to hold that the first two sections of the Act require recognition of the Fourth Amendment where the third section of the Act can be read completely devoid of the constitutional requirement.

Likewise, I feel that the governmental reliance on the statute was unreasonable in light of the history of the immigration laws which have been set out in the Brignoni-Ponce brief of the petitioner.

All prior statutes recognize Fourth Amendment requirements even in this area.

Furthermore, the small number of cases which have even addressed themselves to the roving search show that there was very little reliance upon this practice.

Therefore, it can hardly be said that this Court's decision in Almeida-Sanchez overruled the practice which was long-accepted and widely relied upon as one of the requirements to determine whether a new constitutional rule has been established.

On that basis, it is submitted that Almeida-Sanchez did not establish a new constitutional rule, but merely reaffirmed the long line of decisions which have followed Carroll v. United States.

To hold that Almeida-Sanchez establishes a new exclusionary rule based solely on governmental reliance would be to hold that the government can establish constitutional precedent by its illegal unilateral activity.

The third test is set out in Chevron Oil versus Huson.

Well, it's whether or not Almeida-Sanchez decided an issue of first impression whose resolution was not clearly foreshadowed.

The Chevron Oil case held that respondent can only rely on the law as it then was.

So, he must look at the laws that then was.

The Fifth Circuit had determined that a roving check always required at least reasonable or founded suspicion and recognize application of the Fourth Amendment.

The Ninth Circuit and Tenth Circuit, since this Court's decision in Almeida-Sanchez have stated that a roving check always require probable cause, they'd find this-- they'd achieve this conclusion by determining that this Court's decision in Almeida-Sanchez did not state a new rule, but merely reaffirmed Carroll versus the United States and, on that basis, that has always been the rule.

Based on the Chevron Oil case which held that respondent can only rely on the law as it then was, it is submitted that Paltier can only rely on the law as it then was, and it has been determined that the law as it then was required probable cause to stop and search a vehicle by a roving border patrol.

Even applying the straight reasonableness test as set out in the dissent in Almeida-Sanchez, Peltier, unlike Almeida-Sanchez, lacked reasonableness.

By comparison, the highway where Almeida-Sanchez was apprehended came directly from the border.

In Peltier, the highway upon which he was apprehended began in downtown San Diego and is one of the main-- three major roads leading out of Southern California.

In Almeida-Sanchez, there is no checkpoint.

Justice Harry A. Blackmun: Are you sure about that?

Didn't Almeida-Sanchez-- wasn't the highway parallel to the border?

Mr. Sandor W. Shapery: It was parallel to the border, but I believe it terminated in Calexico or Mexicali which is the twin border town.

Justice Potter Stewart: It was an east-west road, Route 90, as I remember, that at no time was it closer to 20 miles to the border.

That, as I recollect, was the record in the case but it's, perhaps, not that important.

Mr. Sandor W. Shapery: It was further stated in Almeida-Sanchez that this highway is often used bec-- by smugglers of contraband and illegal aliens because it did not have a checkpoint.

On the contrary, there is a fixed checkpoint.

There was a fixed checkpoint on highway 395, right-- near the point where Peltier was stopped.

Justice William H. Rehnquist: Is this the Sunol Opera?

Mr. Sandor W. Shapery: No, this is the Temecula checkpoint.

Justice Byron R. White: Temecula.

Mr. Sandor W. Shapery: It's approximately the same location from the border but another major highway.

Justice William H. Rehnquist: Yes, Temecula is inland from Sunol.

Mr. Sandor W. Shapery: Yes, it is.

That's correct.

Almeida-Sanchez was purportedly stopped 20 miles from the border, where Paltier was stopped 70 miles from the border, separated by the second largest city in the State of California.

In Almeida-Sanchez--

Justice William H. Rehnquist: What are you talking about, the second largest city in--

Mr. Sandor W. Shapery: San Diego.

Justice William H. Rehnquist: San Diego?

Mr. Sandor W. Shapery: Right.

Highway 395, upon which Mr. Paltier was stopped, begins in downtown San Diego and all of the residents of San Diego wishing to go to Northern inland California or even to the Midwest would be going on Highway 395 as the most direct route.

So, there would be millions of people who had never even been to the Mexican border travelling on this highway in the same direction that Mr. Peltier was and at the same time point.

Justice Potter Stewart: Mr. Peltier was, in fact-- he has a French name.

Was he a United States citizen or an American or a Frenchman or what?

Mr. Sandor W. Shapery: Mr. Peltier is a United States citizen and he, as far as I know, had never even been to Mexico.

I don't even know whether he speaks any Spanish.

I don't think he does, but I know that he does not speak with an accent and, upon communicating with him, the border patrol officers could easily recognize that he was not a Mexican citizen or even of Mexican descent as they had stated when they pulled him over.

Justice William H. Rehnquist: Of course, that's no guarantee that he might not have aliens in the backseat.

Mr. Sandor W. Shapery: That is true, but there is no guarantee that any person, any citizen in this-- in San Diego might not be having aliens behind the backseat.

Justice Potter Stewart: And, in this case, there was no showing of any kind that either he or his car had ever either been to Mexico or had aliens in it.

Mr. Sandor W. Shapery: None whatsoever and, in fact, that is another distinguishing factor between Almeida-Sanchez and Peltier.

It is in addition to the fact that Almeida-Sanchez was a resident of Mexico and had stated that he was coming from Mexico.

Mr. Peltier was questioned before the search as to his citizenship and as to where he was coming from and into his destination.

At which point, he stated he was coming from San Diego and he was going to Las Vegas, never even having mentioned the Mexican border or having been there.

Looking at the totality of the circumstances and applying the reasonableness test of the Fourth Amendment that is set out in the dissent in Almeida-Sanchez, taking all of the factors in Almeida-Sanchez--

Chief Justice Warren E. Burger: Does the record show in this case the point of origin of the marijuana that he was carrying in his car?

Mr. Sandor W. Shapery: No, it does not.

Justice Lewis F. Powell: Mr. Shapery, what do you perceive to be the principal purpose of the exclusionary rule?

Mr. Sandor W. Shapery: The principal purpose of the exclusionary rule is to deter unlawful governmental conduct and, at the same time, insulate the Court system and maintain the integrity of the judicial system in determining its decisions.

Justice Lewis F. Powell: I think, in Calandra, we said that the principal purpose of that rule was to deter future police misconduct.

The rule that you advocate here today would not be relevant to that, would it?

Mr. Sandor W. Shapery: I think it would be relevant to that, in as much as-- I believe the conduct in this situation was one unreasonable in light of the fact that the statute had always required-- all the statutes have required probable cause.

We have to look to the reasonableness and I think that to hold that the exclusionary rule only totally across the border will prevent future conduct would be to give the government and overzealous law enforcement officers a free ride to conduct illegal activities until such time as this Court decides the issue.

Justice Lewis F. Powell: But do you think that where there is a statute enacted by the Congress that, I think you conceded earlier, authorized this type of stop and search should be rejected by policemen on their own initiative before this Court decides it's unconstitutional?

Mr. Sandor W. Shapery: I feel that Congress has always recognized the Fourth Amendment, in that in passing this legislation they did not intend to completely abrogate the Fourth Amendment in this particular statute, as is shown in Section a (1) and a (2).

There has always been recognition for the Fourth Amendment, and I feel that it is the unilateral activity of the border patrol which has overstepped the bounds, not Congress.

And, on that basis, it is their unilateral illegal activity which has abrogated the use of the Fourth Amendment.

Justice William J. Brennan: Are you suggesting the statute requires probable cause for a search at the border?

Mr. Sandor W. Shapery: No, I'm not.

I--

Justice William J. Brennan: Well, it's the same section that authorizes it.

Mr. Sandor W. Shapery: I think there's a distinction that it's been--

Justice William J. Brennan: It's the same section, isn't it?

Mr. Sandor W. Shapery: I believe it refers to a search at the border of functional equivalent.

Justice William J. Brennan: Well, it refers to a search with-- at the border or reasonable distance from the border.

Mr. Sandor W. Shapery: That is correct, but I meant--

Justice William J. Brennan: So, it's the same statute that authorizes these-- the examination at the border or authorizes an examination at a reasonable distance from the border.

Are you suggesting the statute requires probable cause at the border?

Mr. Sandor W. Shapery: I'm suggesting that the statute requires recognition of the Fourth Amendment.

Now--

Justice William J. Brennan: What about probable cause at the border?

Mr. Sandor W. Shapery: I feel that the probable cause issue at the border is not brought up in as much as the government has a need to prepa-- protect the integrity of the entire country.

Justice William J. Brennan: But the statute, on its face, purports to authorize the same kind of a search a reasonable distance from the border as it does at the border as you, I thought, indicated earlier in our conversation.

Mr. Sandor W. Shapery: That is correct.

Justice William J. Brennan: And, so that the border patrol officer does have or did have some thought that the statute authorized a warrantless and non-probable cause searches, although not particularly-- not exactly at the border.

And, it's a rather old statute, isn't it?

Mr. Sandor W. Shapery: I believe the statute was enacted in 1946 and then amended in 1952.

The reasonable distance requirement, though, I believe would relate to the functional equivalent of the border and, on that basis, where it is--

Justice William J. Brennan: But the point may be that it isn't a functional equivalent?

Mr. Sandor W. Shapery: I believe that is the case.

Justice William J. Brennan: That's another matter, but this-- if it were, it wouldn't have to have probable cause.

Mr. Sandor W. Shapery: That is correct.

Chief Justice Warren E. Burger: Doesn't it come down with the proposition that you're saying that the officer should have known and been able to predict the ultimate outcome of the Almeida-Sanchez case?

Mr. Sandor W. Shapery: I don't think that's the case.

I think--

Chief Justice Warren E. Burger: In terms of the deterrence that Mr. Justice Powell was asking you about.

Mr. Sandor W. Shapery: I think the point should not have been left up to the individual officer as such.

I think that the problem stems from his superiors, from the attorneys working in passing-- in creating these rules and regulations pursuant to the statute, and I feel that they, at all times, realize that they were rather in a precarious position.

However, looking to the recent application of the exclusionary rule, possibly felt that until some alternative better than this comes up we'll do what we can as long as we can.

And, on that basis, the interpretation has been unreasonable through its application, wherein, other sections of the statute require probable-- not probable cause, but require recognition of the Fourth Amendment requirements.

In the Ninth Circuit, the Courts, for a short period of time, held that the statute could be read devoid to the constitution.

And, I feel that this is not a new rule where a statute must be read in recognition of the higher law of the land being the constitution.

So, the question comes down to whether or not it is a new rule that the-- a law or a statute passed must be read in recognition of the constitution.

That is not a new rule.

It's been with us from the beginning of our legal history and, on that basis, we have to look to Carroll versus the United States as establishing the rule by this Court.

It has not been modified by this Court, but merely reaffirmed by the case in Almeida-Sanchez.

Additionally, I'd like to point out that the border patrol agents, upon examination, have stated that the sole basis for their stopping Mr. Peltier is that he appeared to be of a Mexican descent.

This, in itself, is invidious discrimination to stop and search a car because a person appears to be of Mexican descent.

Justice William H. Rehnquist: Well, what if they stopped him because he spoke Spanish?

Mr. Sandor W. Shapery: I don't feel that they could tell that he spoke Spanish until they did stop.

Justice William H. Rehnquist: Well, I didn't ask you whether they had in fact stopped him because he spoke Spanish.

I said what if they had stopped him because he spoke Spanish.

Mr. Sandor W. Shapery: I have a little problem with the analogy because I couldn't understand how they would know that he spoke Spanish until they made the stop and, at that point, violated his constitutional right through this invidious discrimination.

Justice William H. Rehnquist: Well, do you feel that speaking-- stopping a person for speaking Spanish is of the same order, and your apparent scale of values is stopping a person because he appear to be of Mexican descent?

Mr. Sandor W. Shapery: I think that the Courts have held that discrimination based upon apparent national origin is invidious discrimination and because a person speaks Spanish is justification for the stop, I feel that that is just one step away from Mexican descent and is just another justification for this invidious discrimination.

Justice William H. Rehnquist: Well, isn't the job of the border patrol to figure out who are illegal aliens from Mexico and who are people either lawfully admitted aliens or United States citizens that they don't have any business with?

Mr. Sandor W. Shapery: I believe that the decision in Almeida-Sanchez has established that the border patrolman cannot do this without probable cause.

Justice William H. Rehnquist: Well, what I'm trying to get at, what are the elements of probable cause?

You apparently rule out both speaking Spanish and the appearance of a Mexican nationality.

Mr. Sandor W. Shapery: I think that the Ninth Circuit has established that a person's national origin or his ancestry must remain a neutral factor and not be considered by the Court, as it would raise an issue of invidious discrimination.

Justice William H. Rehnquist: Even if he is stopped at the border, they can't ask him his national ancestry?

Mr. Sandor W. Shapery: No, being stopped at the border I think is a-- quite a different matter, as I've stated--

Justice William H. Rehnquist: Well, I should think it would be as invidious there as it would be any place else.

Mr. Sandor W. Shapery: Now, the government has a need and the public has an interest in maintaining the integrity of the country, in that integrity is maintained through controlling what is coming into the country.

Now, we do not have a situation felt here.

We have a stop of a person, north of the second largest city in California, and the sole basis is because he--

Justice William H. Rehnquist: Well, would it be invidious at the border?

Mr. Sandor W. Shapery: I don't think so.

Justice William H. Rehnquist: But it would be, say, 10 miles inland?

Mr. Sandor W. Shapery: If they had no reason to believe that this person had crossed the border, I would think so.

Justice Harry A. Blackmun: Well, then the same answer you would give if it were 1 mile north of the border?

Mr. Sandor W. Shapery: I think that the proximity to the border has a lot to do with the reasonableness, using the reasonableness standard that's set out in the dissent.

I think that the distance from the border, in addition to the distance of the route or the proximity to--

Unknown Speaker: (Inaudible)

Mr. Sandor W. Shapery: I believe that the question of reasonableness can be raised in as much as--

Unknown Speaker: (Inaudible)

Mr. Sandor W. Shapery: Well, it's pointed out in the government's case in Bowen, on page 11 note 6, that if a party prevails in a lower decision, they can bring up any basis or any ground upon which to additionally make a determination on that case.

The issue of reasonableness has been maintained from the Trial Court level.

I wish to also point out that all Circuit Courts who have ever addressed themselves to this issue, that is the Fifth, the Ninth, and the Tenth, would obtain the exact same result in Pelteir as the Ninth had.

And, the Ninth and the Tenth Circuits hold that the law now, after Almeida-Sanchez, always required probable cause to search on a roving patrol.

Wherein, Almeida-Sanchez reaffirmed the rule of Carroll versus the United States.

So, on that basis, the Ninth Circuit has held that lacking probable cause, lacking recognition of the Fourth Amendment that Pelteir, like Almeida-Sanchez, should have the evidence suppressed.

Now, the Fifth Circuit has always required, now this is pre-Almeida-Sanchez, have always required at least a founded or reasonable suspicion and, since June 25-- or since June 21, 1973, it required probable cause, but even the Fifth Circuit on pre-Almeida-Sanchez law would have suppressed the evidence in Peltier because it did not even comport to the founded or reasonable suspicion requirements.

Therefore, lacking probable cause or even if founded or reasonable suspicion, all the Circuits would've dismissed Peltier.

The government, in this situation, attempted to apply a statute, completely devoid of the Fourth Amendment requirements.

Now, the Ninth Circuit, for a period of time, went along with the Immigration and Nationality Service.

However, the Fifth Circuit, at all times, refused to go along with recognizing-- or without recognizing the Fourth Amendment at all, and they attempted to carve an exception to Carroll versus the United States by requiring a founded suspicion and applying, therefore, a minimal Fourth Amendment recognition.

Now, to agree with the Fifth Circuit would be to allow all Circuit Courts to establish their own constitutional exceptions until overturned by this Court.

I feel that to so do that would create chaos in the lower Court decisions giving them authority to carve exceptions to rules established by this Court and justify those exceptions until the issue is brought to this Court and reviewed and overturned.

Constitutional rule should begin with the Supreme Court and they should end with the Supreme Court.

And, as occurred in the case of Carroll versus United States and reaffirmed by Almeida-Sanchez, Peltier's case should be affirmed.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Patton?

Rebuttal of William L. Patton

Mr. William L. Patton: Mr. Chief Justice, I just like to make a few quick remarks.

First of all, we're not talking about the government's unilateral conduct establishing a rule.

There was a federal statute that had been construed in all of the Circuits that encompassed jurisdictions bordering on the Republic of Mexico.

We disagree with respondent's analysis of the decisions of the Fifth, Ninth, and Tenth Circuits and we say it is simply not true that there is any requirement of probable cause for immigration searches prior to Almeida-Sanchez.

The Fumagalli decision in the Ninth Circuit, which is discussed in Justice White's dissenting opinion in Almeida-Sanchez, is representative of the Ninth Circuit decisions.

They drew a distinction between contraband searches for which they required probable cause and immigration searches.

In immigration searches relying on the statute, they did not require probable cause.

The same is true with the Fifth Circuit.

If you look at the Miller decisions and the Wright decision which is cited in our brief, you will see that what the Fifth Circuit said is that the test is where the search is reasonable under the circumstances, but it was not probable cause or reasonable suspicion.

If it was, it was no more than a requirement that border patrol officers search only compartments large enough to conceal illegal aliens.

And, as to the reasonableness issue which respondent has brought up in his argument, I don't believe that was raised in the Court of Appeals.

Unfortunately, I don't have the briefs here, and I don't think it should be considered now but, in any event, under the prior law--

Justice Byron R. White: Well, why isn't he entitled to defend the decision below on any ground that doesn't expand his relief?

Mr. William L. Patton: Well, he would-- ordinarily, this Court would not consider an issue that was not raised.

Justice Byron R. White: Well, we would.

Ordinarily, we would if our respondent to be defending a decision below on the ground-- even if it was rejected below, we could.

Mr. William L. Patton: Well--

Justice Byron R. White: If he doesn't try to expand his judgment.

Mr. William L. Patton: Well, let me assume, Mr. Justice White, for the purpose of argument that it can be raised now even so, as we've said, that under all the decisions in the Ninth, Tenth, and Fifth Circuits there is simply nothing to decline that the search was unreasonable under prior law, prior to Almeida-Sanchez.

Justice Byron R. White: Could I ask you a question.

I might as well ask you now as in some of the later case.

Is the government seeking to get any kind of an area warrant for a checkpoint?

Mr. William L. Patton: Well, Mr. Justice White, at Temecula, where this search was conducted, we did operate a checkpoint there for a period in 1974 under an area warrant.

Unfortunately, in October of 1974, the District Court in the Central District of California refused to renew the warrant on the ground that it lacked the authority to give an area warrant.

We didn't go up on that case, but we have taken the issue up to the Ninth Circuit, and Mr. Evans will discuss this in more detail in his argument in United States and Bowen.

Chief Justice Warren E. Burger: Thank you, Gentlemen.

73-2000 is submitted.

Featured:

Michigan v. Payne - Oral Argument

Thu, 23 Aug 2012 18:19:26 +0000

Case:

Michigan v. Payne

Media File:

71-1005_19730222-argument.mp3

Related Transcript:

71-1005_19730222-argument

Transcript:

Argument of John A. Smietanka

Chief Justice Warren E. Burger: We’ll hear arguments next in 71-1005, Michigan against Payne.

Mr. Smietanka, you may proceed whenever you’re ready.

Mr. John A. Smietanka: Thank you.

Mr. Chief Justice and may it please the Court.

The facts in this criminal case are a bit complex.

Essentially, they arise from an incident which occurred in Benton Harbor, Michigan on November 5, 1962.

Two police officers were driving in their patrol car, stopped a Pontiac automobile, got out of their automobile and, as they were walking up to the Pontiac, the driver and passenger of that vehicle jumped out and began firing at them striking both officers, critically wounding both.

Both did survive.

Later that day, incidentally, it might be noted at this point that after the officers have been hit, they did fire their guns at the retreating vehicle, Pontiac.

Later that day, Leroy Payne, the defendant in this case was arrested, a confession was obtained from him illegally, and before Judge Phil Hadsol, the Byron County Circuit Court, he pled guilty on December 14, 1962.

In February 1963, he gave testimony against his co-defendant, Lionel Bradford.

In March 8, 1963, he was sentenced to 19-40 years by Judge Hadsol.

Chief Justice Warren E. Burger: Well before you passed that, when he gave the testimony against him as co-defendant, did he acknowledge at all the facts that you presented to us?

Mr. John A. Smietanka: He did.

Chief Justice Warren E. Burger: Was that testimony used against him in any way thereafter?

Mr. John A. Smietanka: It was not.

Subsequently, in 1967, Mr. Payne appealed to the Michigan Court of Appeals and in May 12th of that year, 1967, the remand order was entered by that Court to the Byron County Circuit Court for an evidentiary hearing on the question of the voluntariness of his confession and the voluntariness of his plea.

Then, Circuit Judge Chester Burns conducted that evidentiary hearing in 1967, suppressed the confession, vacated the plea, and set the case down for preliminary examination, whereupon, it proceeded normally to trial.

Prior to trial, the same circuit judge, upon motion of the defendant, granted the change of venue to Grand Rapids which is Kent County, Michigan.

At the trial, certain evidence was entered by the people and by the defense.

I will get to that evidence later in my argument, if it please the Court.

He was convicted by a jury selected from Kent County.

He was sentenced on August 30, 1967 to a term of 25-50 years.

Chief Justice Warren E. Burger: Now, in this trial, was his testimony against Bradford available to the jury?

Mr. John A. Smietanka: It was not, Your Honor.

Chief Justice Warren E. Burger: Does some rule or law of Michigan prohibit that?

Mr. John A. Smietanka: The confession was not entered because Judge Burns specifically suppressed it and--

Chief Justice Warren E. Burger: Well, the confession.

I’m speaking of his affirmative testimony, on the record in open Court in Bradford’s trial.

Mr. John A. Smietanka: No mention as to be made of any-- there is an agreement prior to trial, it’s my understanding, and order of the Court that no mention was to be made either of his confession or his plea or the testimony before Judge Hadsol in the Bradford trial, and none was made.

In fact, there was great deal of cross-examination in the second trial which led up to, but did not come-- did not even in the remote sense mentioned, the fact that he had testified in the prior trial or of any prior proceedings.

There was no notification, no notice of any prior proceedings given to the jury or anything that have happened in those prior proceedings.

Chief Justice Warren E. Burger: But this was by virtue of an agreement, not by a--

Mr. John A. Smietanka: By virtue of an order of the Court, I recall.

Justice William O. Douglas: By an order of the Court?

Mr. John A. Smietanka: It-- I’m not sure how the-- exactly the order was formulated, whether it was by stipulation of counsel, which I believe was the case, and the Court ordered-- made an order based on that understanding.

Chief Justice Warren E. Burger: I see.

Mr. John A. Smietanka: It may have been recorded-- it may have been done in chambers and it may not have been formally filed, but that was the case.

Chief Justice Warren E. Burger: So that neither the jury nor the judge, this trial you’re speaking of now, were aware of his testimony which amounted to a judicial confession in the Bradford case.

Mr. John A. Smietanka: The judge was, Your Honor, because the-- he was the one who had vacated the prior conviction.

He has-- he was, as I said, sentenced to 25-50 years in Michigan Department of Corrections.

On June 23-- pardon me, he did appeal that conviction, raising as one of the grounds an excessive sentence the second time around.

On June 23, 1969, this Court delivered the decision in North Carolina versus Pearce.

Two days later, June 25, 1969, the Michigan Court of Appeals affirmed both the conviction and the sentence, that is, a sentence of Judge Burns.

The Michigan Supreme Court granted leave and, apparently, unanimously affirmed the conviction, but in a 4-3 decision and reversed the sentence based on an-- their interpretation, the Michigan Supreme Court’s interpretation, of the requirements of North Carolina versus Pearce.

This Court granted certiorari in October 16, 1972.

The primary issue, which is actually the last issue that I’ve raised in my brief, is that of the retroactivity of North Carolina versus Pearce.

First of all, I think we can agree that the sentence was properly imposed technically.

The-- it was well within the statutory maximum, that is the statutory maximum in Michigan for assault with intent to murder is life imprisoned.

There are two issues dealt with by the Court in North Carolina versus Pearce, first is that of sentencing.

Pardon me, first is that of credit to be given to a person who has appealed a conviction and been resentenced.

He must be given credit.

This was posited and based on the ex parte Lang on the Double Jeopardy Clause, but the second issue--

Justice Potter Stewart: And that issue is not here, is it?

Mr. John A. Smietanka: That issue is not here, Your Honor.

Justice Potter Stewart: No?

Mr. John A. Smietanka: No question of that.

Justice Potter Stewart: Okay.

Mr. John A. Smietanka: The second issue is that of whether or not a higher sentence could be imposed on the second sentence after a successful appeal.

The Court in Pearce, of course, specifically eliminated the question of Double Jeopardy and Equal Protection Clauses as being a bar to that sentence, that increased sentence, but this say that due process requires that certain-- that these sentences be protected or be governed by certain rules, a certain rule, namely that, first of all, it’d be based on objective identifiable conduct occurring after the first sentence and, secondly, that that conduct must appear on the record.

On January 16 of this year, this Court delivered an opinion in the case of Robinson versus Neil, in which it cited Pearce without mentioning exactly the-- specifically defining how it cited, but it note that Pearce indicated that Benton versus Maryland should be applied retroactively.

The mentioning of North Carolina versus Pearce, we fee, by Mr. Justice Rehnquist, was intended to deal with the double jeopardy aspect of Pearce, that is the sent-- the creditor time served.

Further in that decision in Robinson, this Court noted that there is some conflict or a difficulty of understanding the retroactivity and prospectivity rulings of this Court, and referred the readers and the-- to the thrust of the Desist versus United States as summarizing the Linkletter type criteria and said that, first of all, we must look to determine whether the Linkletter criteria apply to the question of what right are we dealing with?

What right or what privilege newly defined are we dealing with?

Then, we must look to the purpose of the rule.

Desist also emphasized the fact that the purpose of the rule, newly defined, is the most important aspect.

Looking at the particular right that we have, that is the Fourteenth Amendment Due Process Clause, this Court has not held that, in it of itself, solely by citing and by using-- having a right affected by the Due Process Clause does not, in it of itself, require retroactivity.

A particular rule or particular-- the purpose to be served by a particular rule may indicate that retroactivity should take place, but it does not require it.

It is the contention of the State of Michigan that the Linkletter criteria should be applied here for the following reasons.

First of all, that, as I said, the Due Process Clause does not, in it of itself, require retroactivity, as would, as Mr. Justice Rehnquist noted, as it would with the Double Jeopardy Clause in Waller versus Florida.

Essentially, the Due Process Clause, in the way it was applied in this case, assures fairness, basic simple fairness, in the imposition of a second sentence.

We then move to the purpose of the rule.

Essentially, there are two purposes for the North Carolina versus Pearce decision.

There are two things that the Court wanted to protect.

First of all, that is the appellate process, that is, there should not be any unreasonable impediment to the exercise of a right to appeal granted in this case by a state.

The Court, as I recall, has not stated that there is a constitutional right to appeal but, when it is applied, it must be applied-- there must be equal access to the Courts, there must be no unreasonable distinctions.

And, the unreasonable distinction here is a reasonable fear that a second sentencing judge will act indicatively against a particular defendant.

The second purpose is to prevent, to deter, improper vindictive sentences upon defendants solely because they have appealed and want a new trial.

Now, how do we apply the Pearce case and how does it fit within this question of retroactivity?

Justice Thurgood Marshall: Well, first of all, did the same Judge evoke the trial?

Mr. John A. Smietanka: No, sir.

No, Judge Philip Hadsol was-- imposed the first sentence, Your Honor.

Justice Thurgood Marshall: Right.

Mr. John A. Smietanka: And Judge Chester Burns imposed the second sentence.

Justice Thurgood Marshall: That’s what I thought, yes.

Mr. John A. Smietanka: There are certain factors--

Justice Potter Stewart: It was Judge Burns who, in fact, had set aside the original judgment and granted a new trial, wasn’t it?

Mr. John A. Smietanka: That’s correct, Your Honor.

Justice Potter Stewart: What was that, just on-- he wasn’t an appellate judge.

He was--

Mr. John A. Smietanka: No, he was-- their case was remanded from the Michigan Court of Appeals for an evidentiary hearing and, at that evidentiary hearing or after it, he decided, first, that the order-- that the confession should be suppressed, the plea vacated, and it was set for a new preliminary examination which was held and proceeded to trial.

Chief Justice Warren E. Burger: Yes, and so that was, they allowed him to withdraw his guilty plea.

Mr. John A. Smietanka: That’s correct.

Chief Justice Warren E. Burger: That was the thrust of that holding, wasn’t it?

Mr. John A. Smietanka: That’s correct.

The second thing which we are trying to prevent or the Court is trying to prevent in Pearce is the vindictive sentencing.

How do we go about handling it?

First of all, the Court said that the type of material, the factors to be considered by a judge imposing a second sentence should be limited to objective identifiable conduct occurring after the first sentence.

Actually it didn’t say “limited to it,” it said “based upon.”

And, secondly, there’s a record making requirement, that is, this material must be placed on the record so that a higher Court can review that the bases for sufficiency.

Now, retroactivity, it’s our contention, will not further either of these goals.

First of all, those who have been, in the past, deterred from appealing are not going to be-- have their wrongs righted by the retroactivity of Pearce to those cases where those who did appeal had their-- had a higher sentence imposed, that is, the actual wrong that the Court is dealing with is the reasonable fear of those-- the deterrence of those who want to appeal but are afraid to appeal.

These are the people who have suffered the appellate wrong that Pearce was trying to avoid.

Now, making these cases retroactive, making this case retroactive to handle those-- where the defendant did appeal obviously, those who were afraid will never have justice done to them.

Secondly, the prospective application of Pearce will satisfy each of the-- satisfy this appellate and of Pearce, that is, from now on we know, we being-- we convicted of crimes, we know that we will not be subject to a vindictive sentence the second time around and we now can prosecute our appeals.

It should also be noted that if that case-- if Pearce were to be retroactively applied, it would have to be logically a question of each person who was sentenced would then have a right to say-- come in and say, “well, I was deterred because of the fear of reasonable-- unreasonable increase in sentence and, therefore, hear my appeal,” thus, reopening or opening for the first time each sentence at least and each conviction that has ever taken place, in which the defendant presumably is still alive.

Thus, the proof problems would be immense and, furthermore, Pearce--

Justice Thurgood Marshall: Do you have--

Mr. John A. Smietanka: I’m sorry--

Justice Thurgood Marshall: Do you have any figure as to how many people convicted, successful on appeal, who had their sentences enhanced?

Mr. John A. Smietanka: I have no figures, Your Honor, except for figures which were cited in the appendix to Walsh versus Commonwealth dealing there, not with the type of review we have here, the type of sentence we have here, but appellate review of sentencing.

This came about in the-- under the Massachusetts rule and, in that, there are many, many statistics.

Justice Thurgood Marshall: I’m talking about Ju-- this big flood you’re talking about.

Mr. John A. Smietanka: Well, in Minneap--

Justice Thurgood Marshall: I don’t know how big this flood is.

Mr. John A. Smietanka: Well, the flood, Your Honor, would come from every single conviction.

Justice Thurgood Marshall: Every single conviction?

Mr. John A. Smietanka: If a person could conceivably-- for example, a person is convicted, 100 people are convicted--

Justice Thurgood Marshall: Like a few people in the penitentiary today were convicted and didn’t appeal at all?

Mr. John A. Smietanka: I don’t know how many there are.

Justice Thurgood Marshall: Well, there are some.

Mr. John A. Smietanka: There are some.

Justice Thurgood Marshall: Well, they wouldn’t be covered.

Mr. John A. Smietanka: I think they would be, Your Honor, because--

Justice Thurgood Marshall: How?

Mr. John A. Smietanka: Because the appellate purpose of Pearce is to avoid the fear of a higher sentence.

If a person in jail, in prison, does not appeal, it may be for a number of reasons.

For example, he might be satisfied with his conviction, satisfied to justice done, but one reason--

Justice Thurgood Marshall: Well, I’m already quarreling with your word “all,” and I still say that a man in the penitentiary who serves life imprisonment wouldn’t be worried about enhancement of his sentence.

Am I right or wrong?

Mr. John A. Smietanka: That could be, Your Honor.

Furthermore, the sentencing process is to be protected by Pearce and there were-- the real bugaboo, the real evil, is a question of actual vindictiveness.

Now, that is actual vindictiveness for having taken an appeal, and the way the Court handled that was to formulate a rule of, basically, constructive vindictiveness.

The Court said “alright, if these criteria which we’re laying down are not met then, in effect, we are construing, we are saying that this sentence is reversible because it is not-- it is technically, it is based on a vindictive type of sentencing.

It is constructive vindictiveness, but we are actually trying to avoid actual vindictiveness and like actual police misconduct, the type of conduct we had in Mapp versus Ohio.

We’re talking here about deterrence of that behavior, and retroactive application of Pearce is not going to enhance the deterrent effect of Pearce.

Chief Justice Warren E. Burger: After lunch, you will have only 10 minutes left and I hope you are saving a substantial amount of that time to emphasize the differences in a situation when the second sentence was imposed as compared with the first.

Mr. John A. Smietanka: I will.

[Luncheon Break]

Chief Justice Warren E. Burger: You may continue.

You have about 10 minutes all together.

Mr. John A. Smietanka: Thank you, Mr. Chief Justice.

May it please the Court.

The questions that I was requested to confine my remarks to, basically, what type of behavior was indicated as--

Chief Justice Warren E. Burger: I don’t mean to limit you to that, but that’s a matter of very great interest to me.

Mr. John A. Smietanka: Yes, it is but, primarily, I’d like to deal with the two items.

There is an affidavit, two affidavits, in the petitioner’s appendix found on pages 17 through 21.

These are from Judge Burns.

One was supplied to the request of the Michigan Supreme Court, the other he submitted to clarify one matter in this Court.

Basically, they could be boiled down to two things.

First of all, the-- he felt that the behavior of Mr. Payne at the trial warranted an increase in sentence, namely after receiving a new trial, he came in and the judge concluded and, we believe the jury must have concluded, he did not tell the truth because of the following reasons.

The evidence presented by the people was as follows.

First of all, Vick Yost, the victim, made an incorrect identification of the defendant as the one who shot him.

He had known him before and saw him, recognized him when the shots were being fired, and testified that way in court.

Furthermore, when he was laying on the street and the first officers came up to the scene and asked “who shot you?”

And it was testified that Vick said “Leroy Payne.”

“The license number?”

Then, he gave the license number of the car, “RB2599.”

That car, when it drove away, had been fired at by the officers, bullet hole-- pardon me, fired at the returning vehicle.

They found the car later, the same license number, four bullet holes in the trunk of the car, and that car was Leroy Payne’s.

Next, the assault weapon was found, and Leroy Payne’s fingerprint was found on it.

Against this, defendant testified to an alibi, namely, “I was at home during the time-- at all time-- I was home in bed during the time the shooting took place.

I did not shoot Vick Yost.

I did not drive my car that night.”

The jury, in finding the man guilty beyond a reasonable doubt, must have found that the testimony of Mr. Payne was untrue.

That, in many case, in insanity defenses, and many other types of defenses, this is not the case, but when there’s an alibi defense and especially in this case where it is so clearly-- the positions of the two parties are so clearly defined, the verdict of the jury was that he was guilty beyond a reasonable doubt and it must’ve included the fact finding that he did not tell the truth at the trial.

Chief Justice Warren E. Burger: Well now, the important thing perhaps or one of the important things is the impact of this as compared with the posture of the case when it was before the original sentencing judge.

At that time, it was different judge wasn’t it?

Mr. John A. Smietanka: That’s correct.

Chief Justice Warren E. Burger: That judge had the impression somewhere, I get it, out of the record--

Mr. John A. Smietanka: Yes.

Chief Justice Warren E. Burger: That since he fully confessed and re-- expressed regret and sorrow for the shooting of these officers, that he was reasonable candidate for rehabilitation and, did not the second judge give some indication that he thought that this was a--

Mr. John A. Smietanka: Yes, sir.

That is--

Chief Justice Warren E. Burger: Very much in marked contrast?

Mr. John A. Smietanka: Yes, Your Honor, that is my second point.

Taking this type of behavior at the second trial together with the completely different approach that Mr. Payne took at the first trial and that-- you’ll notice in the appendix on pages 6 through 8, the sentencing transcript of Judge Hadsol.

He specifically notes the type-- the approach that this defendant had taken, confessing his crime, made him a very appli-- appt candidate for rehabilitation.

Justice Byron R. White: Well, is it your-- state’s position that the state may impose a heavier sentence in any case if they plead guilty.

Mr. John A. Smietanka: No.

Justice Byron R. White: For the victim.

Mr. John A. Smietanka: No, that’s not the case, Your Honor.

My position here--

Justice Byron R. White: What else is there here?

The man maintained his innocence in the second trial after having confessed to it?

Of course, that’s true.

Mr. John A. Smietanka: Yes.

Justice Byron R. White: But, you’re saying the heavier sentence was justified by his behavior, namely denying the crime and maintaining his innocence.

Mr. John A. Smietanka: In-- there’s a difference, Your Honor, we believe, between maintaining a person’s innocence.

That is a legal conclusion.

As I can say I’m innocent, but not come in and testify to facts which are-- specific facts which are not true.

Justice Byron R. White: You do say that, but a man comes up the stand and denies that he shot the weapon, that he shot the gun and then the jury finds him guilty, that the state justified imposing a heavier sentence on him than his co-defendant who plead guilty.

Mr. John A. Smietanka: If the case-- I know, we’re not dealing with a co-defendant, Your Honor, because--

Justice Byron R. White: I know, but you would say that, I suppose.

Mr. John A. Smietanka: No, because I’m dealing with a question of the same person.

We’re dealing with the same person.

At one time in 1963, having one attitude and an--

Justice Byron R. White: Well, if he loses then, he loses his game when the jury finds him innocent.

He-- they’ll have to punish him more heavily than if he had--

Mr. John A. Smietanka: For behavior--

Justice Byron R. White: Than if he had pleaded guilty.

Mr. John A. Smietanka: For behavior which he had exhibited after that first sentence, yes, Your Honor.

Justice Thurgood Marshall: Well, what’s the sense-- this man was pleaded guilty.

He was convicted and he appealed.

Mr. John A. Smietanka: Yes, sir.

Justice Thurgood Marshall: Well, was the purpose of the appeal so he could go back and plead guilty again?

Mr. John A. Smietanka: No, the purpose was not that he’d go back and plead guilty again.

It was to have a fair trial, which he received.

In the course of that trial, he exhibited conduct which we contend is detrimental conduct, that is--

Justice Thurgood Marshall: What’s that?

Mr. John A. Smietanka: That is, testifying falsely.

We believe that this Court is--

Justice Thurgood Marshall: How do you know it was falsely?

Mr. John A. Smietanka: Your Honor, the-- a determination--

Justice Thurgood Marshall: Well, do you have perjury as an issue?

Mr. John A. Smietanka: Yes, we do.

We do not charge him with perjury because of the--

Justice Thurgood Marshall: All you can say is the jury didn’t agree with him.

Is the case any more than that?

Mr. John A. Smietanka: The case?

Justice Thurgood Marshall: The jury agreed with the state and did not agree with the defendant.

Mr. John A. Smietanka: That’s correct.

Justice Thurgood Marshall: That’s all.

Mr. John A. Smietanka: But, in finding that they agree with the state, they have to completely disregard the testimony of the defendant in this case.

Justice Thurgood Marshall: Well, what other convic-- how else do you get a conviction?

Mr. John A. Smietanka: Well--

Justice Thurgood Marshall: If you plead one side, you vote that way.

If you plead the other side, you vote that way.

Mr. John A. Smietanka: That’s correct, Your Honor.

However--

Justice Thurgood Marshall: Is that this case?

Mr. John A. Smietanka: We should note--

Justice Thurgood Marshall: What makes it so different from the (Inaudible) criminal case?

Chief Justice Warren E. Burger: Isn’t the essence of it that the verdict in the second trial cannot be read any other way than a finding that he testified falsely under oath and that they reach that finding beyond a reasonable doubt?

But, is that as important, really, as the fact that the judge said, in sentencing after the trial, that his man was a different person in terms of his probability of his rehabilitation and that that was the basis for his giving the heavier sentence?

Mr. John A. Smietanka: Yes, sir, and all the testimony has to do is to lead to that conclusion.

Basically, the sentence is--

Justice Thurgood Marshall: Well, what is it that’s so different?

Mr. John A. Smietanka: The difference, I believe, Your Honor, is--

Justice Thurgood Marshall: One time, he says “I did it, I shot it and I’m sorry,” which he has a perfect right to do, and then he gets a new trial and he says “I didn’t shoot it.”

Is that horrible?

Mr. John A. Smietanka: Your Honor--

Justice Thurgood Marshall: Is that enough to increase a sentence on him?

Mr. John A. Smietanka: I believe, Your Honor, it’s his conduct which would indicate a certain something about his character which the judge could take into consideration in imposing a higher sentence, yes.

Justice Thurgood Marshall: Well, what did the judge take in the consideration except that he didn’t believe him?

Mr. John A. Smietanka: He took into consideration that the jury found he was not telling the truth, and this indicated something about his character, a change in his character which had to do with the length of the sentence which had been imposed.

Justice Thurgood Marshall: The change in his character that he wasn’t now and then a scraper.

Is that the change?

Mr. John A. Smietanka: That is not what we require defendants, Your Honor.

Justice Thurgood Marshall: Well, what else is there, other than that?

Justice William H. Rehnquist: I take it, you’ve already explained at some length what you think is different, haven’t you?

Mr. John A. Smietanka: Yes, Your Honor.

Chief Justice Warren E. Burger: And did he not, not once but twice, make a full confession?

When he testified in, was it Bradford’s trial?

Mr. John A. Smietanka: Yes, sir.

Chief Justice Warren E. Burger: When he testified in Bradford’s trial leading to the conviction of his co-defendant, he fully described in every detail his participation in the card.

Mr. John A. Smietanka: That’s correct.

Chief Justice Warren E. Burger: And none of this information was, of course-- could’ve been known to the judge who sentenced him on the guilty plea in the first instance.

Mr. John A. Smietanka: No.

In this case, Your Honor, the facts were slightly different and that is that, and this is something that Michigan Supreme Court did not notice and that was that, Judge Hadsol had presided at the trial of Bradford before he sentenced Payne.

So, he heard Payne testifying. That’s-- we don’t dispute that.

He did-- was available-- was aware of the facts of Bradford and Payne during the Payne trial or at the Payne sentence.

Justice Thurgood Marshall: Did he also take consideration of the fact that he testified for the state to convict the other man?

Mr. John A. Smietanka: He may have.

I don’t know.

Justice Thurgood Marshall: You don’t know that.

Mr. John A. Smietanka: He didn’t specifically state that.

Justice Thurgood Marshall: Well, I don’t know he took it into consideration at all, do I?

Mr. John A. Smietanka: You don’t, Your Honor.

Justice Thurgood Marshall: He only took one side into consideration.

Mr. John A. Smietanka: That’s correct.

Your Honor, I would like to reserve the rest of my time for rebuttal.

Chief Justice Warren E. Burger: Mr. Neuhard.

Argument of James R. Neuhard

Mr. James R. Neuhard: Mr. Chief Justice and may it please the Court.

I’d like to step into the conduct area of the argument at this time.

However, I feel there are a few responsive notes I’d like to make on the issue of retroactivities.

I agree with the prosecutor when he states this is a very complex problem.

This case had been in the Courts now for over 10 years on various aspects.

In fact, there’s a collateral matter pending on the Sixth Circuit which is the companion case to this case.

The co-defendant Lionel Bradford’s case is on appeal in the Sixth Circuit, again, by the people because Lionel Bradford’s conviction was vacated by the District Court of the Eastern District of Michigan.

The basis for the vacation was on the-- that Leroy Payne’s testimony was used to convict Lionel Bradford and Judge Cornelius Kennedy, in vacating the conviction, held that because his confession was brutally beaten out of him, it was as though the state had knowingly used purged testimony to obtain the conviction of Bradford.

This also would get into the conduct argument, but--

Chief Justice Warren E. Burger: Well, you mean there’s some spillover effect when he testified against Bradford?

Mr. James R. Neuhard: That’s correct, Your Honor.

The reason was that--

Chief Justice Warren E. Burger: How long a time was that?

Mr. James R. Neuhard: Pardon?

Chief Justice Warren E. Burger: How long a time was that between the two trials?

Mr. James R. Neuhard: That’s almost a period now of 10 years.

Chief Justice Warren E. Burger: Yes.

So that there’s some spillover effect of the original confession when the man’s in open Court in the presence of a judge?

Mr. James R. Neuhard: That’s correct, Your Honor, in this particular case because of the unusual fact situation.

The answer to that basically is that when Leroy Payne was picked up by the police officers he was in the custody of three various police departments, and there’s no dispute that the reason for vacating his guilty plea in this particular case was because the confession was beaten out of him.

As a matter of fact, at Lionel Bradford’s trial, they wanted to introduce pictures taken of Leroy Payne after his confessions and they were excluded because they were inflammatory, that he was in such a brutally beaten condition.

His thumbs were sprained, his face was swollen, his genitals were squeezed until he was brought into a state where he confessed.

All of the activities from the moment he was picked up until he testified in Lionel Bradford’s trial and was sentenced were while he was in the custody of the police department of a space of over five months, four-and-a half months.

And, because of that fact, when he finally did testify at Lionel Bradford’s trial, and he did go to sentencing, he initially intended to sue the police departments for the condition in which the manner which they treated him and he decided not to do so, and--

Justice William J. Brennan: What was the holding would set aside Bradford’s conviction?

Mr. James R. Neuhard: Because--

Justice William J. Brennan: Based on what?

Mr. James R. Neuhard: Because the confession that was introduced was the testimony of Lionel Bradford.

Justice William J. Brennan: Whose confession is it?

Mr. James R. Neuhard: That is Leroy Payne’s.

Justice William J. Brennan: It was introduced at the--

Mr. James R. Neuhard: In Lionel Bradford’s trial, that is, he took the stand and testified.

Chief Justice Warren E. Burger: Well, was it a confession or was he testifying--

Mr. James R. Neuhard: It was his testimony.

Chief Justice Warren E. Burger: He testified in person?

Mr. James R. Neuhard: That’s correct, Your Honor.

Chief Justice Warren E. Burger: Not a confession?

Mr. James R. Neuhard: That’s correct, Your Honor.

Justice William J. Brennan: And it was said that that was the fruit of these beatings?

Mr. James R. Neuhard: That’s correct, Your Honor.

Justice William J. Brennan: That’s the holding of the District Court?

Mr. James R. Neuhard: That’s correct.

Justice William J. Brennan: That’s now on appeal in the Sixth Circuit?

Mr. James R. Neuhard: That’s the-- people are appealing that case to the Sixth Circuit.

That-- our appendix in this particular case has extensive quotations from the Bradford transcript that show the manner of testimony of Leroy Payne plus all the testimony of the police officers both had Payne’s second trial or his first trial, as it was, after his plea and at Lionel Bradford’s trial, and it sat on that length, for purposes of comparison to show that Judge Hadsol knew as much as the second sentencing judge, Judge Burns, when he sentenced him.

As a matter of fact, at the second sentencing, Judge Burns said that-- I’m sorry, at the first sentencing, Judge Hadsol said that when he gave him 19-40 years in prison that, “I’m taking into account your remorseful condition now, and if it continues, you might get released early.”

Because Michigan has indeterminate sentencing, it takes into account these vagaries of personality changes which can occur, and Judge Hadsol was well-aware of this.

He was well-aware of what Payne had said at his first trial and he was grateful that Payne had decided not to sue the police officers, which he has not done.

If I may, I’d like to get into the--

Justice Byron R. White: But he has-- he did plead guilty.

Mr. James R. Neuhard: That’s correct, Your Honor.

It was while he was with that-- the reason for the vacation of the guilty plea was because it was beaten out of him.

Justice Byron R. White: I understand that, but at the sentencing he was found guilty.

Mr. James R. Neuhard: That’s correct, Your Honor, the first sentencing.

It also followed Lionel Bradford’s trial.

Justice Byron R. White: Which Michigan needs to perform the actual charge.

Mr. James R. Neuhard: That’s correct, Your Honor, the same as a confession which was beaten out of you as an admission.

Justice Byron R. White: Yes.

Mr. James R. Neuhard: The point is the same.

Justice William H. Rehnquist: Well, is there any contention that the guilty plea was beaten out of him?

Mr. James R. Neuhard: That-- yes, Your Honor, that the guilty plea was the product of the coercion of the Byron County police officers.

Justice William H. Rehnquist: Well-- But what I asked you was, was there any contention that the guilty plea itself was beaten out of him.

Mr. James R. Neuhard: You mean, while he was in Court, was he being coerced at that particular time?

Justice William H. Rehnquist: Well, I think--

Mr. James R. Neuhard: Well, the implication is-- that’s our implic--

Justice William H. Rehnquist: I’m not-- I didn’t ask you over the implication.

Do you contend that the plea itself was beaten out of him?

Mr. James R. Neuhard: Directly, Your Honor, I’m without knowledge on that point.

Whether Mr. Payne would contend that--

Justice William J. Brennan: What did the Judge hold when he set aside the guilty plea?

Mr. James R. Neuhard: That it was the product of the coerced confessions and that it directly led to the guilty plea.

Justice William J. Brennan: And that has nothing to do with whether or not he did or did not say he conformed with the act or the relevance of the fact that he said he conformed with the act in what sentence he might give.

Mr. James R. Neuhard: I’m not sure I understand your question.

Justice William J. Brennan: It is completely different from the second case where he plead defecto.

Mr. James R. Neuhard: Well, it is in the sense that after the first convictions and the guilty plea--

Justice William J. Brennan: No, setting aside the plea the product of a coerced confession.

It has very little relevance, if any, to the accuracy of the plaintive.

Mr. James R. Neuhard: Well, I think it has some direct bearing on whether or not a man would plead guilty knowing that he had three confessions.

Justice William J. Brennan: No, I can see.

I didn’t-- what I said, I said it had very little relevance to the plea in a sense that it would’ve been set aside when it was actually not.

Mr. James R. Neuhard: That’s correct, Your Honor.

That’s correct.

It may in the abstract or it may in fact have been a true plea, although Mr. Payne, once he was out of the custody of the Byron County police officers, did begin the appellate process and then, when he came back to trial, he testified he had nothing to do with it.

Chief Justice Warren E. Burger: How long after the original plea of guilty and sentencing did he move for a new trial and, well, move to withdraw his plea of guilty?

Mr. James R. Neuhard: Well, there was-- the initial four months would be, I’d say, about three months bef-- after he plead guilty until the Bradford trial, and then it would be a period of about two years, I would imagine, before the first plea-- motion for a new trial was sen-- was made and that was in front of Judge Hadsol.

Following that, there was a renewed motion for a new trial in front of Judge Burns, at which, Judge Burns, the second sentencing judge, granted it.

In between those two motions for new trial, there was the appeal to the Court of Appeals with the remand for an evidentiary hearing for determination of the circumstances under which the plea was made.

So, it would be--

Justice Harry A. Blackmun: Did-- in this recent Bradford proceeding, Judge Kennedy make any finding that the story Payne told at Bradford’s trial was coerced out of him and was not true in fact?

Mr. James R. Neuhard: Well, she didn’t go so far as to say it was not true in fact.

She did say it was a product of a coercion of the worst circumstances and should not have been injected into the trial by the people, knowing these facts to be true.

If I may, there are a few points I’d like to make on the issue of retroactivity.

The-- I-- we feel our brief is adequate on this point, but there are several points that should be brought out.

This issue was pending on appeal.

When the Pearce decision was released, it was based on prior Michigan authority.

The case in the Michigan Court of Appeals, when it was released two days subsequent to the release of Pearce, took into account peripherally the Pearce decision, but the majority was a 2-1 decision rule that because the second sentencing judge knew more about the defendant than the first judge, because he had taken a plea, they affirmed the conviction.

Prior Michigan law says, very much like Pearce, that if the situation is such that the sentence might have been the product of vindictiveness and no reason can be put forth for the sentence increase, then the plea-- the sentence should be set aside.

Justice Byron R. White: What year was his first sentence?

Mr. James R. Neuhard: He’s first sentence, Your Honor, or first conviction?

Justice Byron R. White: He’s first conviction.

Mr. James R. Neuhard: His first conviction was set aside.

I believe it would’ve been in 1967.

I believe, 1967, and the subsequent--

Justice Byron R. White: And they’re still setting it?

Is there still a procedure to set aside guilty pleas based on allegedly coerced confessions?

Mr. James R. Neuhard: Well, there is, Your Honor, the very basic procedure we have for challenging the validity of a guilty plea itself. That is a voluntary--

Justice Byron R. White: You may appeal-- after a guilty plea, you may appeal the admissibility, say, of a appeal procedure?

Mr. James R. Neuhard: Well, you can, Your Honor.

You can appeal anything you want and challenge the voluntariness of the confession itself because Michigan has a statute since 1875.

Justice Byron R. White: No, but you can’t-- you don’t have a system in New York where if you make a motion to suppress certain evidence and is denied, plead guilty, and have him appeal the suppression of it?

Mr. James R. Neuhard: Well, Your Honor, it’s sort of yes, you can do it, but there’s no set up procedure to do that specifically.

Justice Byron R. White: But then you have in your case what happened was the guilty plea was claimed to be an expressed conduct.

Mr. James R. Neuhard: That’s correct, Your Honor.

Likewise, that’s the contention that the defendant made at Lionel Bradford, that his testimony at the trial was a direct product of the coercion he was under during the time he was in the custody of the Byron County police officers.

Chief Justice Warren E. Burger: Does Michigan have any statute allowing some particular time limitation on withdrawing a guilty plea after sentence?

Mr. James R. Neuhard: No, Your Honor.

There is-- this is an area of high dispute in Michigan right now.

There is some authority for the proposition that between the time of the plea and before sentencing, that there-- the defendant has the-- almost a right to withdraw the plea, but he had to set forth good reasons and, after the plea, the burden then is on the defendant to show why the plea itself was invalid, but--

Justice William H. Rehnquist: You mean after sentence?

Mr. James R. Neuhard: That’s correct, Your Honor.

There’s-- because that time period between the plea and the sentence where he has more of a right to withdraw than after the sentencing.

After sentencing, Michigan has a very definite date by which it’s the normal appellate process for showing that the plea itself was invalid.

Justice William H. Rehnquist: Among the reasons given, is it required that he assert inst-- innocence of the crime?

Mr. James R. Neuhard: Not in the State of Michigan, Your Honor.

I would like to get to the issue of--

Chief Justice Warren E. Burger: In any event, he could’ve-- in view of his subsequent conduct, that wouldn’t have been a barrier to him because he did--

Mr. James R. Neuhard: That’s correct, and he did assert innocence once he got back to trial.

On that point, I think one of the underlying premises and difficulties of this particular case, that you have two unique elements of this particular case.

You have a plea trial situation and you also have the situation where a man who vacates a plea goes to trial, takes the stand, and testifies in his own defense.

Both of these were the main product which Judge Burns used in increasing the sentence.

We contend that the first issue, that is that he knew more about the defendant than the first judge in the matter of the crime itself, is not factually true and not factually correct.

Judge Hadsol knew much about it, if not more, because both police officers testified at Bradford’s trial.

He knew more about the crime when he sentenced Payne and, in fact, he said that at the sentencing itself.

“I know all there is to know about this particular case when I imposed this sentence.”

Then, the second judge did, Judge Burns.

It also leads up to the question of remorse and the question of perjury.

Justice Byron R. White: Would your position be different if he had, in fact, Bradford?

Mr. James R. Neuhard: No, Your Honor, it would not.

We do not see any reason whatsoever in increasing a man’s sentence from 19-40 years to 25-50 years that the state has put forth as a valid reason for doing so.

Michigan has indeterminate sentencing which takes into account all the vagaries of personality and character differences when they have a man in the prison itself.

They have a psychiatric department at the prison to take these things into account.

Also, in the subsequent conduct scheme--

Justice Byron R. White: Well subs-- absently, Bradford had pried.

The second judge very likely might know more about the defendant.

If he’s tried, then the judge will just let him plead guilty.

Mr. James R. Neuhard: Well, in Michigan also, we have this--

Justice Byron R. White: This is the kind of information that Pearce had probably.

Mr. James R. Neuhard: No, it isn’t.

It’s-- we would contend it’s not conduct occurring, first of all, after the first sentence.

It’s nothing over which a defendant has any control.

Justice Byron R. White: But it may be information that the first judge had.

Mr. James R. Neuhard: There may, in fact, be a situation where the judge doesn’t have the same information the second judge has.

We do not contend-- we contend it’s just not the kind of information that Pearce contemplated that when the-- Michigan has a presentence report procedure whereby a probation officer investigates a total crime and then reports to the judge for purposes of sentencing.

It’s a very exact kind of thing and goes beyond even analyzing the crime and goes out to the neighborhood and talks the neighbors of the particular defendant, any kinds of information.

Justice Harry A. Blackmun: I know there’s reference to that in Judge Burns’ second affidavit that he says he did receive and studied, prior to sentencing Mr. Payne, a supplemental plea sentence report which it cannot, under the present Michigan law, make public, but which a higher Court than this one can order produced. Did that-- was that ever called for?

Mr. James R. Neuhard: Yes, Your Honor.

As soon as we-- we did not get into this case until November 29 of last year and, as soon as we got into the case, we made a motion for production of that presentence report.

We also included in appendix to our brief the rule in Judge Burns made on our motion for production of that report.

He denied us access to it, and we also quoted him to Michigan authority.

Two cases in Michigan now that had been on the books for over two years which allow the sentencing judge to release it.

It’s within his discretion.

It’s not mandatory that it’d be release, but he has the right to release it.

He denied us access to that.

So, it puts Mr. Payne in the position of challenging information that he has no way of knowing what’s in there.

That it’s a very difficult procedure, at best, to put a defendant in when he’s contemplating an appeal.

He has no control over the--

Chief Justice Warren E. Burger: But didn’t this Court settle that issue in Williams against New York?

Mr. James R. Neuhard: Your Honor, we agree with the basic premise of Williams v. New York that you should have-- that the judge knows much about the individual as he possibly can when he sentence him, but what we’re talking about here is the second sentencing when you have other constitutional rights which are at stake.

It’s the constitutional right to not only the defendant, I should make clear, but of the Court’s system itself that there’s a very good chance that Mr. Payne knew his sentence was going to be increased.

He might not ever have appealed, and the kind of activity that went on in this case with these confessions and the plea was a product of the confession for being out of him would never be apparent to a supervising Court.

Like we have in Michigan, one Court of Justice, and it’s their duty to supervise the lower Courts and if they are prevented of this road of access to showing the Appellate Courts what’s going in their lower Courts is denied, then you’re really perverting the system of justice that our state has established and we can’t see those presentence reports and--

Chief Justice Warren E. Burger: I can understand your emphasizing the fact-- the circumstances of this first confession right after the commission of the crime after Payne was taken into custody, but we can’t avoid looking, can we, at the record which shows that police officer identified Payne by sight and that bullet holes were found at the back of his car and that the pistol-- Payne’s pistol was found to be the pistol that had been used to shoot the officers?

Are those factors not part of the whole mosaic here?

Mr. James R. Neuhard: Yes, they are, Your Honor, and they are necessarily so in many criminal convictions where a defendant takes a stand and asserts his reasons for or his explanation of the charges against him, and we contend that’s what the charge of perjury is to take into account.

And, what you’re allowing here, after a man has appealed, a man has a right to exercise his right to appeal, is that if he comes back to Court, they’re going to allow to increase his sentence on perjury seven years, seven years he’d already served.

He can now have his sentence increased by seven years because of alleged perjury without any kind of a hearing without the ability to see the presentence report, upon which, allegedly, this sentence--

Chief Justice Warren E. Burger: Well, are you suggesting that the judge in the trial, the judge whose sentence is under consideration now, was not entitled to conclude that this man was a less probable prospect for a successful rehabilitation than the first sentencing judge had concluded when he had expressed great sorrow over his conduct?

Mr. James R. Neuhard: Well, I can-- there’s many answers I can give to that, Your Honor, but one of the primary answers I think that’s important to recognize is this man had a 19-year minimum at this time, the 40 years in prison.

That, most reports done in prisons and precluding the prison’s report on crime and correction indicate that sentencing is not an exact science at all, and this kind of--

Chief Justice Warren E. Burger: What’s that got to do with the question I just put to you?

Mr. James R. Neuhard: Because what you’re allowing because of this idea that because one judge-- the impact before him on one judge is different than the impact it has on the second judge necessarily on his candidate for rehabilitation allows him to increase his sentence at seven years, and the impact on this is that a man is now serving in prison.

Chief Justice Warren E. Burger: But don’t you think his conduct, in the meantime, should-- is something that Judge may take into account?

Mr. James R. Neuhard: I do, Your Honor, and this man, the judge said at the second sentencing that his conduct in prison was exemplary and that’s the only thing that prevented him--

Chief Justice Warren E. Burger: I’m not talking about his conduct in prison.

I’m talking about his conduct outside the prison.

Mr. James R. Neuhard: Well, if it’s conduct outside the prison, as we’re into this case, the only conduct which has occurred after the first sentencing which is alleged perjury that occurred inside the second trial.

Now, the judge never, in any of his affidavits, alleged that the perjury occurred inside the second trial.

He was referring to between the first instance, those plea trials in the first instance, and the second trial, that the allegation that there was internal perjury which occurred is because he asserted an alibi defense.

His alibi defense was that his car was stolen, the gun was in the car, and it was used unbeknownst to him.

Now, if there’s an allegation of perjury here, I think this Court settled many years ago in in re Murchison that-- which dealt with a grand jury proceeding, that a grand jury proceeding that a judge can’t be at one time the prosecutor, the judge, and the sentencer in a given case.

Justice Byron R. White: Well, let’s assume at the-- let’s assume that at the sentencing, after the second trial, there’s no-- the defendant doesn’t say anything but “I’m innocent” and maintains his innocence.

Now, are you suggesting that, invariably, that it’s an invalid factor for a judge to take into account in sentencing?

Mr. James R. Neuhard: At the second sentencing, Your Honor, I think--

Justice Byron R. White: No, I don’t-- let’s just say first sentence, second sentence, third sentence, any sentencing, a judge may not take into consideration the fact that the defendant denies his guilt and shows no remorse whatsoever.

I’m not arguing one side or the other of that.

I just want to know what your positions are.

Mr. James R. Neuhard: Well, I think there was one comment that was made, although it’s a very difficult line to draw, that we’ve cited in our brief.

It was quoted in People versus Button, a Michigan Court of Appeals case, which talks about the lack of remorse which has the line that was drawn which says you can take into account the positive aspect of remorse, but you can’t penalize the man who stands adamantly before the Court and protests his innocence because he may indeed innocent or he may be--

Justice Byron R. White: So your answer is that it’s unconstitutional to take that factor into account?

Mr. James R. Neuhard: That’s correct.

You can’t punish him for--

Justice Byron R. White: And, if you’re wrong on that, you don’t have as good a case here, do you?

Mr. James R. Neuhard: If I’m wrong in the fact that you can’t take into account remorse?

No, Your Honor.

I contend that the situation, the comparison aspect of, first of all, that you can’t use the comparison aspect between the first incidence and the second incidence on the issue of remorse because it’s highly questionable why he was remorseful in the first place and, internally, that is whether the it’s first, second, third, or fourth sentencing is important when you talk about considering it in this particular case.

That is because you have a competing right to appeal on this particular case, and any man who appeals is thinking about going to trial and it will be put in that position of claiming his innocence at the trial itself and that-- which are necessarily saying is that the sentence can be increased.

We think it is important that there’s a difference between the first and the second sentencing on this remorse issue and, necessarily, a judge--

Justice Byron R. White: I take it the state’s position is very close to saying that Pearce would never apply where there’s a-- where, in the first proceeding, there’s a plea of guilty which is said aside then there’s a retrial and conviction.

Mr. James R. Neuhard: Well, I wouldn’t chose to speak for what the state--

Justice Byron R. White: And the judge as well.

Arguably, in any one of those situations, the judge-- as long as the judge said I have seen something-- I have made an assessment of the-- reassessment of the defendant’s character that the first judge didn’t have.

Mr. James R. Neuhard: I’m not quite sure I understand the points you’re getting at, Your Honor.

As far as the different-- the vagaries of having a man who plead guilty then appealing and having the plea set aside, there are multitude of reasons why that plea might be set aside.

In this particular case--

Justice Byron R. White: Well, the other side of the coin is that your position is that you should-- a defendant’s conduct in the second trial, in the Courtroom, should never be sufficient to abate Pearce.

Mr. James R. Neuhard: No-- yes, that’s precisely our points, Your Honor, because, necessarily, in the process of an appeal of a guilty plea that was improper would be the contemplation by the defendant that he’s going to trial and that if he only sits there and does nothing, so simply as his lawyer asserts his innocence by saying “prove my guilt at this particular time.”

There are so many reasons why might be sitting there that it’s very difficult to predict just to what--

Justice William H. Rehnquist: That’s quite different, really, isn’t it, if the man simply pleads innocent and says to the state “prove my case” or even if he takes the stand and testifies on issues that he could be believed on consistently with an overall verdict of guilty and compare it to the getting on the stand and saying that I was in such and such a place and not where the crime is committed.

That there are all different ways in which he could legally assert his innocence.

Mr. James R. Neuhard: That’s correct, Your Honor.

We agree with that and, because of that very factor, we think that there should be a due process hearing on the nature of his changed testimony which might necessarily exist in all cases where a plea has been vacated in the trial of Pearce.

He’s entitled to be heard as to why it occurred in this particular way.

Justice Byron R. White: Wasn’t there a second hearing?

Mr. James R. Neuhard: There-- well, in Michigan, Your Honor, you have a right to elocution which the lawyer exercised and which the judge recognized.

Justice Byron R. White: The defendant was there, wasn’t he?

Mr. James R. Neuhard: That’s correct, Your Honor.

Justice Byron R. White: And didn’t the defendant-- didn’t the judge say that-- why he took it into account?

Mr. James R. Neuhard: Your Honor, at the first sentencing, he stated the main reason why he was increasing the sentence was because he now knows more about the crime than the first judge knew about the crime, and we’re contending that that is just factually incorrect and, because that’s the major factor he took into account, that the worst for Mr. Payne that can happen in this is that it should be remanded for resentencing at that particular time.

Chief Justice Warren E. Burger: Well, inevitably, just as a matter of time, of sequence, he was bound to know more because he knew about the intervening Bradford trial which the first judge couldn’t have known about because it hadn’t happened.

Mr. James R. Neuhard: Well, the first judge did know about the intervening--

Chief Justice Warren E. Burger: He didn’t know about it when he sentenced him.

Mr. James R. Neuhard: Yes, he did.

He sat at the Bradford trial.

Chief Justice Warren E. Burger: No, but in the first trial when he sentenced this man.

Had the sentence not been announced?

Mr. James R. Neuhard: No, Your Honor.

They held off sentencing until he ha testified.

Chief Justice Warren E. Burger: After the Bradford trial?

Mr. James R. Neuhard: After the Bradford trial.

Chief Justice Warren E. Burger: I see.

Mr. James R. Neuhard: So, the first judge knew necessarily all there was to know about this particular crime itself.

Now, our basic contention is that if there are occurrences within the second trial itself which might or might not amount to perjury, that because of this Court’s statements in cases like Morrissey v. Brewer and Humphrey v. Cady, the recent cases, that you should be entitled to some due process hearing whenever the sentence is going to be increased or the terms of your confinement are going to be changed to give the defendant to come forth and respond to those claims.

In Michigan right now, this is so close.

What happened in this particular case is very close to in re Murchison.

You have a judge sitting up there, without any kind of any opportunity to approach the judge, have the defendant take the stand and testify.

You have an increase of 7 years on the minimum and 20, I believe it was 10 years on the maximum, and you can-- that kind of a procedure where the terms of confinement, the length of confinement can be changed without any kind of a hearing, I feel, is just reprehensible under these fact situations.

Justice William H. Rehnquist: But, in Williams, we said the original sentence could be imposed.

Mr. James R. Neuhard: Pardon?

Justice William H. Rehnquist: In Williams, we said the original sentence could be imposed on that basis, didn’t we?

Mr. James R. Neuhard: Well, we have no qualms with the original sentence being re-imposed in this particular case.

Chief Justice Warren E. Burger: Including the death sentence, a choice between life and death was made in Williams, wasn’t it?

Mr. James R. Neuhard: Yes, Your Honor, but the-- in this particular case, what we’re concerned with is the actual increase in the punishment or the potential for rehabilitation as you will, of this particular individual of seven years.

He had served at this particular time seven years of imprisonment.

He went back to Court and got almost basically all that time over again to do, with no time given for that seven years to sue.

Chief Justice Warren E. Burger: I can understand his discomfiture over that.

We can all understand that.

But, as a practical matter, your experience as a public defender, it would-- isn’t it a fair statement that at the end of a trial or at the end of a guilty plea, the guilty plea sessions, a judge frequently may have a certain impression about what he’s going to do.

He may indicate to counsel that he is-- will very likely grant probation, but sentence is deferred until he gets the presentence report and then he gets the presentence report, and then he will not consider probation because, at the time of a guilty plea and the right of elocution occurs, the defendant or the man is putting his best foot forward, but when the presentence report comes in, as in Williams, a whole new panorama is opened to the judge.

Isn’t that-- as a practical matter, doesn’t that happen?

Mr. James R. Neuhard: Yes, Your Honor, it does.

Chief Justice Warren E. Burger: So that the situation can change by a virtue of different impressions about the prospects of rehabilitation.

Mr. James R. Neuhard: That’s correct, Your Honor, and it’s that very danger that we’re talking about in this particular case, and when you have--

Chief Justice Warren E. Burger: And you’re supposing it takes a due process hearing to evaluate that second process?

Mr. James R. Neuhard: That’s correct, Your Honor, because what they’re alleging here is a separate crime and they’re giving him no opportunity to be heard on that particular crime.

Chief Justice Warren E. Burger: Well, in Williams-- going back to Williams.

In Williams, the district-- the sentencing judge actually, as I recall it, went around the neighborhood and talked to people and got information about him, and then had a presentence report, perhaps in addition.

Mr. James R. Neuhard: Well, we don’t know--

Chief Justice Warren E. Burger: It was on the basis of that ex parte information in which the defendant couldn’t have any possibility of challenging any of the information.

He said “this man is going to be sentenced to death".

Wasn’t that the hole issue, that there was no due process question involved in Williams?

Mr. James R. Neuhard: We do not relent for a minute on the position that we should have access to that presentence report and have some control over the information being generated by that particular report.

Those cases-- we have over 500 cases in Michigan right now pending in our office, and that’s one of the major case-- issues we are bringing to the Court’s continually is the right to see that particular presentence report and the right to respond to the information within it, but accepting the fact that a presentence officer will do his job properly, which we do not know whether it occurred in this case or not.

They had all the opportunity to do that at the first sentencing.

Now in this particular case, after that first sentencing, his conduct was exemplary and the judge noted that on the record.

That’s what prevented him, he said, from giving the man life imprisonment.

Justice Byron R. White: His conduct in prison?

Mr. James R. Neuhard: That’s-- well, where else would he be, Your Honor, with the 19--

Justice William J. Brennan: He was being tried at the second trial.

Mr. James R. Neuhard: In the course of the second trial, when the con-- when the potential charge is one of-- that amounts to perjury, which at this particular case it was.

Justice William J. Brennan: Well--

Mr. James R. Neuhard: If this were any other individual, he’d have a right at that particular time to have--

Justice William J. Brennan: Mr. Neuhard, is it clear in this case that the second judge, when he-- when the second sentence was imposed, took into account in assessing the defendant’s character and his conduct since the first trial, compared his conduct with his conduct at his guilty plea?

Mr. James R. Neuhard: Yes, Your Honor, they did.

Justice William J. Brennan: Now, so he is saying that while he had read the transcript at the first sent-- at the first guilty plea, is that right or not?

Mr. James R. Neuhard: He read the transcript of the first guilty plea?

I would assume so, from his conducts.

Justice William J. Brennan: Well, did he say that while he had confessed his guilt at the first guilty plea, he denies it now?

Mr. James R. Neuhard: Yes, Your Honor.

He talked about the lack of remorse.

Justice William J. Brennan: Now, isn’t this using a guilty plea that has been set aside as invalid as the product of coerced confession, isn’t it using that guilty plea in some way a subsequent proceeding?

Mr. James R. Neuhard: Yes, it is, Your Honor.

Justice William J. Brennan: Do you make that point or not?

Mr. James R. Neuhard: We do inferentially, Your Honor, in that we consider any content-- any consideration of a lack of remorse was improper, and that’-- gets to the point where he said “you confessed in the first trial and now you’re not.”

Justice William J. Brennan: Well, I know.

But, that would be the same even if he didn’t-- even if he never knew have pleaded guilty the first time.

Mr. James R. Neuhard: Well, he didn’t state it that way though, Your Honor, that “because you plead not guilty in this trial, I’m taking into account your lack of remorse.”

He referred back to the original proceedings in this particular case because, as his first affidavit stated in this particular case, of the many points he made, about 8 of them dealt with his increased knowledge of the defendant and also his apparent lack of remorse that he had one time had expressed for the shooting of the two police officers, and it was directly related to the product of his first pleas.

There’s no contention that it was an internal to the second trial in the sentencing that he was entirely consistent.

Chief Justice Warren E. Burger: You’re not attacking the basic conviction, just the increase in the sentence.

Mr. James R. Neuhard: That’s correct, Your Honor.

Chief Justice Warren E. Burger: So, that means that in this Court, here and now, today, it must be accepted that the verdict was correct and the judgment of conviction was correct, namely that he did shoot these police officers.

Mr. James R. Neuhard: Well, the verdict, as it stands, that the jury found that he in fact had shot the police officers is, at this time, a valid verdict.

Chief Justice Warren E. Burger: At this time?

Well, are you suggesting a challenge to it?

Mr. James R. Neuhard: I won’t speak for what Mr. Payne intends to do with that particular conviction as far as collateral re-attacking it but, at this time, this Court can approach the conviction as being valid, the conviction itself.

In that particular proceedings, Mr. Payne has indicated, took the stand, testified as to why he didn’t have the car and the gun.

The jury chose to believe the state’s evidence and you can-- whatever inferences are permissible to draw from that, this Court, I think, is engaging in speculation compared to the right he was attempting to assert which was his right to appeal, his right to have a higher Court review what occurred in the lower Courts and that, primarily, is the thrust we’re making.

That, if this particular Court is-- will allow lower Courts to take into account internally the lack of remorse that he shows at the second trial or compare it between the plea and the trial.

That it is highly speculative to compare it to the rights which are being asserted and, also, that Michigan’s present sentencing scheme takes those factors into account that the indeterminate sentencing, by its very nature, is taking into account the character and the makeup of the individual.

Further, I’d like to point out to this Court that Judge Hadsol, the first sentencing judge, on the issue of remorse said that you may get out early if your present condition continues.

He was implying directly in there what the Department of Corrections can do, which is hold a man longer if he’s recalcitrant, if he is not showing positive signs to being able to return to the community.

That, Judge Hadsol was very aware of this particular problem, and to allow perjury to be-- and I think it’s very important to state here, to allow perjury and increase a sentence in a second trial is a very dangerous precedent because anybody who appeals from a guilty plea and then goes to trial and states his reasons and is convicted would necessarily, under that implication, be guilty of perjury.

It does away completely with the requirements of trying a man for perjury, and that’s a very dangerous precedence whether you’re talking about appellate matters or whether you’re talking about simply the first sentencing matter.

That, it’s very important that an individual feel that he can take the stand and state what he wants to state and that he has the due process rights following that particular statement if he’s going to be charged with perjury.

Justice Thurgood Marshall: What’s perjury in Michigan, five years?

Mr. James R. Neuhard: In this particular case, it would’ve been life imprisonment.

Justice Thurgood Marshall: For perjury?

Mr. James R. Neuhard: That’s correct, Your Honor.

There is a-- the perjury statute in Michigan states that the maximum 15 years imprisoned, unless the charge-- the crime of which you were charged was life imprisonment.

In this particular case, the crime was life imprisonment potentially and he carried a life imprisonment.

Chief Justice Warren E. Burger: So that there wasn’t much percentage in the prosecution prosecuting him for perjury with-- in light of the heavy sentence he already have.

Mr. James R. Neuhard: Well, Your Honor, if they wanted to increase the sentence, if they felt that it was important for his sentence to be increased because of the nature of his perjury, then I feel they could’ve gone to trial and the judge certainly, at that time, was free to give him up to life, but he would’ve at least had the opportunity to appear in Court and test-- and attempt to justify why he said what he did, and he would have all the concomitant rights that go with it.

He would have had at least a hearing which, in this particular case, he didn’t even get a hearing, let alone a trial on the matter and to be in front of a jury because, as I indicated--

Chief Justice Warren E. Burger: Did he not have a trial before a jury?

Mr. James R. Neuhard: Not on the issue of perjury, Your Honor.

Chief Justice Warren E. Burger: Well, when a defendant takes the stand and testifies, does he not tender the truth or falsity of his own testimony?

Mr. James R. Neuhard: That’s correct, Your Honor.

That’s why he takes the oath, and the whole point behind the-- if the oath itself is not followed, that’s why we have a perjury statute in Michigan that is so severe, because of the collateral consequences of it.

Justice Potter Stewart: Mr. Neuhard, referring to Judge Burns’ affidavit executed last November 29th and appearing on page 21 (a) of the affidavit-- of the appendix, the paragraph 4 there seems to be an open invitation for this Court to order the production of the supplemental presentence report.

At least that’s how I read it.

It’s an affidavit filed in this Court and he says he can’t make it public but which a higher Court than this one can order it produced.

I read that as an open invitation.

Would you have any objection if we accepted that invitation?

Mr. James R. Neuhard: No, I would not, Your honor, but I think it would point out to the Court that in our appendix A, we have the motion where we made-- which we made for the production of the presentence report and, in that particular motion itself--

Justice Potter Stewart: Now, appendix, what page?

Mr. James R. Neuhard: It’s at page 1 (a) of our appendix.

Justice Potter Stewart: Thank you.

Mr. James R. Neuhard: Of our brief.

Justice Potter Stewart: Of your--

Mr. James R. Neuhard: Of our brief on appeal.

It’s the white copy, Your Honor.

Justice Potter Stewart: Okay.

Mr. James R. Neuhard: On page 3 (a) of that particular appendix, Judge Burns states this Court has followed a general-- a policy, generally, in sentencing, to tell the defendant exactly what it is and the presentence report that has influenced him and to give the defendant to explain or to correct it.

In this particular case, we are relying on Judge Burns’ statement that he has stated all the reasons why he increased the sentence, and there’s nothing in that particular presentence report.

Chief Justice Warren E. Burger: In what page was that on?

Justice Potter Stewart: Well, he says that it is.

Mr. James R. Neuhard: It’s on page 3 (a) of our appendix, Your Honor.

Chief Justice Warren E. Burger: I think it’s 3--

Mr. James R. Neuhard: In the bottom page.

Justice Potter Stewart: He implies at least, I thought, that there was something here, an addition here--

Mr. James R. Neuhard: I think it’s clear, Your Honor, he-- there is a clear implication that there might be something in there but, assuming he filed his general policy which he stated here, then he would’ve stated all his reasons.

Justice Potter Stewart: Well--

Mr. James R. Neuhard: We assume there is nothing.

Justice Potter Stewart: One of who sought could--

Mr. James R. Neuhard: That’s--

Justice Potter Stewart: Could determine or could resolve the ambiguity.

Mr. James R. Neuhard: That’s correct, Your Honor.

Justice William J. Brennan: Are you familiar with the case of Giles and Maryland?

Mr. James R. Neuhard: Not directly, Your Honor.

Justice William J. Brennan: That’s a case where this Court called a presentence report, turned to resolve on what we founded on.

Mr. James R. Neuhard: We are-- I’d like to point out one factor in this particular case which I mentioned at the outset, which is this is a very complex case.

Judge Burns has now have four opportunities to state why he sentenced this particular man.

At the first sentencing, he stated “I’m not sentencing you because of your appeal.”

Then, he had the second affidavit.

He had the affidavit in this Court and at the opportunity on our motion for production of the presentence report, and we feel that-- I don’t know how many more opportunities a man should be given to state why he sentenced a man, but that it should be within the confines of these particular affidavits.

Justice Potter Stewart: Well, this would be within the confine of the affidavit on November 29th, paragraph 4, wouldn’t it?

Mr. James R. Neuhard: Well, yes, Your Honor, but I feel that there shouldn’t-- according to how I read his implications, there should not be anything there.

But, again it makes it difficult for counsel to approach the affidavit if this is the method it is to be employed.

Justice Potter Stewart: Certainly, it does. That’s the reason I asked the question if you would have any objection.

Mr. James R. Neuhard: Well, Your Honor, I-- in that, I don’t expect there’s anything in there.

If there is, I would be very surprised by his comments and I would object too if there is something in there or this Court feels there’s something in there, not having the opportunity to respond to it because we made the good faith effort to get it and told Judge Burns that he had the power to release it to us, and it was denied to us.

So, I assume there is nothing in there that we have before us on the affidavits which the Michigan Supreme Court, by the way, requested from him, his reasons for the increase.

And, in that affi-- in the affidavit he gave to them, whatever he stated, they found wasn’t enough.

Justice Potter Stewart: I know.

Mr. James R. Neuhard: In which he stated the subsequent conduct and they also-- he also stated the lack of remorse and the contrary testimony.

They found, as a matter of fact in law, that it was not enough.

Justice Potter Stewart: But this new one is filed, as you know, in this Court and he does make this reference in paragraph 4 and does point out that a higher Court, presumably this one, can order it to be produced.

Mr. James R. Neuhard: That’s-- I know he said that, Your Honor, and I’m at a loss as to-- we did everything we could do to obtain that in time to come to this Court, and we have not been able to obtain it.

I would assume that in--

Justice Thurgood Marshall: He didn’t offer to give it to you.

Mr. James R. Neuhard: Pardon?

Justice Thurgood Marshall: In his affidavit, he didn’t offer to give it to you.

Mr. James R. Neuhard: That’s correct, Your Honor, he did not.

Chief Justice Warren E. Burger: I suppose there’s nothing in the record that would show how long a hearing was held at the time of the original guilty plea and sentence, but I suppose also that that’s a relatively brief procedure.

Mr. James R. Neuhard: In Michigan, as a matter of fact, it is a very brief procedure.

Chief Justice Warren E. Burger: And the judge says in his affidavit that, without going into what is already part of the record, and now I’m ensurging because there’s an antecedent I, was greatly influenced by the brutal details of the crime which, over three days plus-- which, over a period of three days, plus its-- the judge’s owns impressions of the defendant during these days, plus the impression of his testimony during those trials.

So, the judge has a great deal more, in that sense, a better opportunity to observe and make-- draw inferences from the conduct of the defendant than the sentencing judge on a guilty plea, wouldn’t you agree?

Mr. James R. Neuhard: No, I would not.

Not in this case, Your Honor, because the first judge had sat on the trial of Lionel Bradford and heard all the testimonies.

In fact, both police officers testified there, not just the one as they did at his second trial.

Chief Justice Warren E. Burger: Then you’re saying that when he said that, this is not true.

Mr. James R. Neuhard: That’s correct, Your Honor.

I’m suggesting that he was unaware at the time or just didn’t take into account the fact that Judge Hadsol had known all the facts.

Justice William J. Brennan: As a matter of fact, what he said at the second sentencing, in effect, retracted in the affidavit that he’s filed in this Court because he now acknowledges what he said was not the case at the second sentencing, namely that Judge Hadsol did have the opportunity to know all about the case because he presided at the de facto trial.

Mr. James R. Neuhard: That’s correct, Your Honor.

Justice William J. Brennan: And we don’t-- and that first comes to the record when we get the affidavit here in this Court.

Mr. James R. Neuhard: That’s correct, Your Honor.

Are there any other questions?

Chief Justice Warren E. Burger: Very well, Mr. Neuhard.

Mr. James R. Neuhard: Thank you.

Chief Justice Warren E. Burger: We’ll enlarge your time in due of the enlargement here.

You can have about four minutes.

You were down to one.

Rebuttal of John A. Smietanka

Mr. John A. Smietanka: Thank you, Mr. Justice.

With regards to the case of the presentence report, in the argument before Judge Burns and prior to it, in the formal argument, the actual argument before him, before the final ruling was put in the record and included in the appendix, it was suggested to Mr. Benson by myself and also, I believe, by the judge that we would have no objection and we suggested that he come up to this Court and say-- request the Court to free this-- to bring this presentence report to this Court, and so it’s not a question of exhausting all alternatives because that alternative was suggested to him.

Justice Thurgood Marshall: Giving them a copy of it?

Mr. John A. Smietanka: This would then put the burden on this Court.

If the Court wanted the defendant to have a copy of it, the judge would have no objection-- could have no objection.

Justice Thurgood Marshall: The only way that the defendant can see it is for us to order.

That’s the only way in the world?

Mr. John A. Smietanka: That’s the way the ruling was made, yes, Your Honor, and the reason for it was that because of Judge Burns’ feelings on the matter of disclosure of presentence reports which eh included in his ruling, the reasons why he feels they should be confidential and to-- namely to protect the sources of the information and not to have these sources dry up and to give the judges as much latitude as possible to consider information, both favorable and unfavorable, to the defendant.

With regards to the time between the original plea and the original-- pardon me, the original sentence and the original appeal, there was some doubt as to how long that was.The record will indicate it was three years.

The case of Murchison was cited several times and we feel that it’s not applicable at all.

In that case, we’re dealing with the determination by the same judge and only by that judge of whether or not perjury had been committed.

When the first determination was made or the perjured statement or the alleged perjured statement was made in a one-man grand juror situation, there was only one person there to hear the perjury, and that was the one-man grand juror himself and the Court required that that type of proceeding required a full hearing by another judge for the contempt citation to stand.

And furthermore, with regard to the issue of perjury, I’m not absolutely sure, but I believe that the law in Michigan as it stood at the time of the second trial or the trial was not because it was punishable by life but rather by 15 years and that it was subsequently amended to make it life.

I believe there’s some question in that area, but the-- I do not know the citation of that.

I can’t give it to the Court.

Thank you.

Chief Justice Warren E. Burger: Very well.

Mr. Neuhard, you were not appointed by the Court in the usual procedure but you came here at our request, indirectly at least, and on behalf of the Court, I want to thank you for your assistance not only to your client, but your assistance to the Court.

Thank you, Gentlemen.

The case is submitted.

Featured:

Adams v. Illinois - Oral Argument

Thu, 23 Aug 2012 18:18:31 +0000

Case:

Adams v. Illinois

Media File:

70-5038_19711207-argument.mp3

Related Transcript:

70-5038_19711207-argument

Transcript:

Argument of Edward M. Genson

Chief Justice Warren E. Burger: We will hear arguments next in Number 5038, Adams against Illinois.

Mr. Genson.

Mr. Edward M. Genson: Mr. Chief Justice and may it please the Court.

The grant of certiorari in the instant case is limited to the single question whether Coleman versus Alabama is retroactive and applicable to the instant case were prior to trial.

The defendant objected to the failure to provide counsel at a preliminary hearing.

It is our position that the State does not have standing or right, to argue reliance or non-retroactivity.

In a case where the error was pointed out to the State by the defendant prior to the trial to the Court and the State ignored the plea proceeding to trial.

The case of Linkletter versus Walker established the criteria for determining whether a rule should be or should not be retroactive.

The reasons and the criteria were the purposes to be served by the new rule, the reliance on the old rule and the effect of the new rule -- the retroactivity, retroactive application of the new rule on the administration of justice.

The purpose of the rule in Coleman as I see it is to enhance the integrity of the fact finding process and thy doing this by providing a lawyer at the preliminary hearing which in Illinois is a very critical stage of the proceeding and a very vital stage of the proceeding in the prosecution of a defendant.

The value of counsel at a preliminary hearing in Illinois is immeasurable.

The Attorney as pointed out in Coleman can use the impeachment tool later at trial.

He can fashion his tool and this would be something -- would be impossible to do without an attorney at the preliminary hearing.

As Justice Schauer pointed out in his dissent in Bonner, Bonner is one of the cases in Illinois that established the preliminary hearing not to be a critical stage.

In that case where there was no counsel the witness testified against the defendant in response to leading questions by the prosecutor in the Court.

He was not advising my co-witnesses on his own behalf, he did not testify.

He was not advised that witnesses could be excluded or kept separate during examination.

He was not advised at the preliminary hearing and Illinois can be used to perpetuate testimony which is specific in the statute.

I differ with the respondent’s analogy of Stovall versus Denno and Coleman as I can contemplate a fair wind up without an attorney present but how might a preliminary hearing be there without an attorney.

This is an adversary proceeding.

In this particular case, in the instant case not one question was asked by the defendant, not one witness was called by the defendant.

The insufficiencies or whatever insufficiencies that there might have been indicate for the State would have been -- were corrected by leading questions by the States attorney.

And I would submit that unlike Stovall where you can have a fair lineup without an attorney present, it is not possible to have a fair preliminary hearing or preliminary hearing which performs the function of a preliminary hearing in Illinois without an attorney.

Chief Justice Warren E. Burger: We will only test that in a moment, suppose the acts are witnessed by great many people and at a preliminary hearing they bring in two witnesses that are said to be typical of nine others except for discovery purposes, what would be done at the preliminary hearing?

Mr. Edward M. Genson: Mr. Chief Justice, at the preliminary hearing those two witnesses would be cross-examined.

They would be – their story would be used to -- would be tested.

There would be impeachment perhaps laid for further use at trial.

At the preliminary --

Chief Justice Warren E. Burger: If -- it is discovery now.

I said other than the standard.

Mr. Edward M. Genson: No.

For all purposes --Mr. Chief Justice, for purposes –

Chief Justice Warren E. Burger: But if you are using it to prepare for trial, you are using it for discovery, are you not?

Mr. Edward M. Genson: Well, you are using it also if it please the Court for impeachment because those statements used or fastening an impeachment tools would be used later on.

Chief Justice Warren E. Burger: So, that is still discovery, is it not, preparing for trial?

Mr. Edward M. Genson: Coleman in its determination of the values of a preliminary hearing differs between the fashioning of impeachment tools through the use of prior -- through the use of the prior statements at trial and discovery.

Chief Justice Warren E. Burger: Was the Illinois statute not familiar with the details or its history.

Was that shaped as a discovery tool?

Mr. Edward M. Genson: The Illinois statute relative to preliminary hearings?

Chief Justice Warren E. Burger: Yes.

Mr. Edward M. Genson: No.

The Illinois statute relative -- preliminary hearings deals specifically with the holding of the preliminary hearing in the finding of probable cause.

There is nothing in the statute in Illinois which deals with preliminary hearing which relates to the use of preliminary hearings for purposes of either discovery or impeachment.

Chief Justice Warren E. Burger: May the prosecutor under Illinois statutes bypass the preliminary hearing by giving an indictment or issuing an information if you use that process?

Mr. Edward M. Genson: The indictment procedure in Illinois Mr. Chief Justice, but at that time they no longer can.

But at that time at the time of the preliminary hearing in Adams the prosecutor would have had the option of going directly to the grand jury under the recent constitution which came into effect July 1, 1971.

If an arrest is made and no indictment is pending the prosecutor no longer has that option in Illinois.

Unknown Speaker: He must go to the preliminary hearing?

Mr. Edward M. Genson: He must go to preliminary hearing before he can go to indictment.

Chief Justice Warren E. Burger: But he gets an indictment before he arrests --

Mr. Edward M. Genson: If he has an indictment before he arrests, he can bypass the preliminary hearing.

But I would just like to point out that the vast majority of the arrest in cases contemplate or result from arrest, the error around the time the offense is allegedly committed and indictments are very rarely sought.

Only in the exceptional cases you would have an indictment prior to arrest in Illinois.

Chief Justice Warren E. Burger: So you are speaking of cases where an arrest is made right on the scene.

Mr. Edward M. Genson: Or an arrest is made sometimes a month or two later.

It is an extremely rare situation only in -- perhaps certain financial claims or other claims of that type in Illinois have we seen indictments gained before the arrest sir.

In Illinois also with reference to discovery and the witnesses can be -- the lawyer can get discovery from those witnesses at the preliminary hearing.

Now, under the rules as they were fashioned in Illinois at that time, the only items that the attorney were entitled to were the witnesses of -- the statements of the defendant and a list of witnesses.

At the time of the trial and after testimony, the statements of the various witnesses were available.

Now, if these witnesses testified at trial, of course again in addition to having those statements available for impeachment or possible impeachment later on, these statements would also be available for purposes of discovery and these would be statements under the discovery rules at that time which would not be available at the time of trial.

Under the new rules these statements are available at the time or after the bringing of the indictment but even then under the new rules of the indictment in Illinois generally do not come till three or four months after the arrest.

The attorney in Illinois in addition to the processes of getting discovery and providing impeachment tool can expose weaknesses in the case which might eliminate an indictment and this is very relevant certainly under the new rules in Illinois because it is my contention that the Illinois rules provide that once there has been a finding of no probable cause that the only way that this can be brought again before the Court system is for new evidence to be found and if brought again before the preliminary hearing judge.

The value of an attorney in Illinois is -- goes to other aspects of it.

The Great majority of the cases brought in Illinois are disposed off a preliminary hearing to reduction of charges, though acceptance of a plea to a lesser charge.

Through an acceptance of plea on an information which is filed right in the preliminary hearing courtroom and therefore I do not think the respondent can contest the fact that the vast majority in cases -- of cases in the State of Illinois that are brought as felony complaint are disposed off at the preliminary hearing level and this is another value at least in the State if Illinois for the retroactive or the application certainly of Coleman and the retroactive application in this case because a lawyer -- a lawyer’s presence at that preliminary hearing becomes immeasurable at that time.

Chief Justice Warren E. Burger: At that hearing --at that preliminary hearing, can sentencing process take place too in Illinois?

Mr. Edward M. Genson: The procedure generally --

Chief Justice Warren E. Burger: Or just a plea?

Mr. Edward M. Genson: The preliminary hearing is brought by a felony complaint.

The plea is not entered at that time.

After the preliminary hearing the procedure usually follows that the prosecution in the event of a witness perhaps in their case or because of whatever reasons they feel is important would reduce that charge to a misdemeanor.

The Municipal Court Judge at that time has jurisdiction to receive a plea as to the misdemeanor equivalent or the misdemeanor included offense at that time.

They also have in Illinois an information process wherein at -- just subsequent to the preliminary hearing the judge then or between conferences there is a conference that takes place between the judge, the states attorney and the defense attorney pursuant to a specific Supreme Court rule and an information is filed pursuant to waiver and indictment and plea negotiation takes place.

The pleas usually received at the preliminary hearing are generally quite a bit less in the event that you do partake in those discussion and those that might be taken after indictment.

Now the other -- another advantage of an attorney at the preliminary here in Illinois is regarding psychiatric examinations notwithstanding the fact that there has been no cases cited and the respondents make the point that there is no authority for psychiatric examination in the State of Illinois.

Not withstanding that, there is a Municipal Court psychiatric clinic and what this means is, it is either a great number of cases are referred when there is evidence of some sort of psychiatric disorder to that psychiatric hearing at the preliminary hearing level.

Now, the value of an attorney in asking for that again becomes immeasurable because certainly, if Your Honor please, the psychiatric examination takes place with one -- maybe a week or two weeks after the alleged commission --

Justice Harry A. Blackmun: Preliminary hearing throughout the State held in the Municipal Court?

Mr. Edward M. Genson: The preliminary hearing in Cook County is held in Municipal Court.

Justice Harry A. Blackmun: And the psychiatric service you have mentioned is available only in Cook County?

Mr. Edward M. Genson: As far as I can determine this is the only specific psychiatric service available in Cook County.

Justice Harry A. Blackmun: But the value is only in Cook County?

Mr. Edward M. Genson: Cook County, yes sir.

Your Honor but the facts of the matter is a good many or I would imagine a good majority, the vast majority of preliminary hearings held in the State of Illinois are held in Cook County.

And therefore I think it is important to point out to you Your Honors that the fact that the -- psychiatric examination might at this time be held one week, one week or two weeks perhaps after the alleged commission of the offense has a lot more value than having one order subsequent to indictment which might be four or five months later.

Another added addition that a lawyer can perform at a preliminary hearing --

Justice Harry A. Blackmun: But you are arguing Cook County laws, as it is now?

Mr. Edward M. Genson: I am arguing regarding that part of it.

Regarding the psychiatric examination Cook County law but there is nothing, Mr. Justice Blackmun, which prevents an attorney from requesting a psychiatric examination at the preliminary hearing level under Illinois law.

I am only saying that the facilities are available in Cook County, of a specific facility designed almost entirely for this purpose.

Justice Harry A. Blackmun: Now, we had a case up here a little while ago, Belleville down in St. Clair County, what would happen if he wanted a psychiatric examination?

Mr. Edward M. Genson: He would have to make a request to the preliminary hearing judge and the preliminary hearing judge would either not or he would either order or not order it but there is no, there is no authority in Illinois allowing or not allowing him to order it.

And I think the value of the psychiatric examination is certainly immeasurable when one considers the fact that indictments generally follow the crime by about three or four months.

I know the prosecution often in indictment in defenses where insanity is raised would raise the fact that the examination was not gotten until substantially after the offense.

Addition --

Unknown Speaker: Exactly what you are telling us about, preliminary hearing practices.

Are these preliminary hearings before or after the constitutional hearings?

Mr. Edward M. Genson: The preliminary hearing practices that I speak to are before but after the same rules apply with the additional factor that under new Illinois, under Illinois law subsequent to the constitution the preliminary hearing is required as the constitution reads unless the person has been arrested, unless the person is arrested after the indictment.

Unknown Speaker: Has the practices or functions have changed with a new constitution amendment?

Mr. Edward M. Genson: The only function is, is that it eliminated whatever direct indictments, it would reference to cases, specifically murder cases.

In certain narcotic offenses, direct indictments were generally the only way it was proceeded.

They would arrest them, hold the preliminary hearing, the State would continue the preliminary hearing, four months or whatever.

And during that time they would proceed to indictment.

Again in my experience, again there is no law and I practice all through the State.

Most of the other counties did not practice the indirect indictment procedure.

Almost all the counties even before practiced a system wherein preliminary hearings were gained before indictment.

The other --

Justice Potter Stewart: Do you have information in your State -- you proceed to criminal trial on informations in your State at all?

Or is everything like that --

Mr. Edward M. Genson: It can be proceeded if there is a waiver. Generally it is very rare that you see an information unless it is specifically waived and it is generally only waived in cases of pleas of guilty.

And the information proceeding in the last three or four years is practiced extensively at this preliminary hearing level because of a constitutional amendment passed about three years ago or prior to that constitutional amendment and the District Court judge did not have the power to take a plea on a felony even by information.

Since that -- the new amendment, they have been allowed to do this and therefore they have in proceeding information at the preliminary hearing level in great amounts.

Since -- well, in the last two or three years.

Justice Potter Stewart: And that is by a waiver of the defendant though.

He has a State constitutional right to be indicted?

Mr. Edward M. Genson: Yes Mr. Justice.

Justice Potter Stewart: For a felony?

Mr. Edward M. Genson: Yes sir.

The only additional factor that I would like to point out is that even under the new constitution.

The grand jury can not be eliminated by a simple vote of a legislature and this again assuming that this might be done which certainly put greater value on the preliminary hearing, if this could be done or were done.

Another function, a very important function of the lawyer or the attorney in Illinois at a preliminary hearing is regarding the motion to suppress.

The motion to suppress at the preliminary hearing at Illinois is binding and appealable.

Now at the time the respondent filed their brief in the instant Court, legislation was passed by the State to bypass this and to allow the State to proceed to indictment even though the motion to suppress has been sustained by the preliminary hearing judge.

Since then, that law has been declared unconstitutional and the State of the law in Illinois at this time and at the time of the instant cause of the Adams case is that the preliminary hearing in Court makes the final determination on motions to suppress.

The preliminary hearing and this is a binding and appealable order and if not appealed by the State, the State can go no further relative to that evidence.

Unknown Speaker: Why in Gilbert we said that a counsel at a lineup that -- in those decisions, we said Stovall was not retroactive?

Mr. Edward M. Genson: Yes sir.

Unknown Speaker: Why -- and those two could turn on harmless error in the case of preliminary hearings?

How do you distinguish -- why should this be retroactive on the primary counsel lineup?

Mr. Edward M. Genson: Because Mr. Justice, I feel that the -- there is a difference in determining retroactivity.

The only test is not whether there was counsel or was not.

There are three tests.

But going back to the first test, the purpose of the rule, it would seem that an attorney at a preliminary hearing will invariably help the defendant in Illinois it is not invariably in a lineup as U.S. versus Wade that it would not held --

Unknown Speaker: But we did say in court that even if he does not have one in lineup if it is a -- it has established that the absence of counsel was harmless error than a -- the absence of counsel at a preliminary hearing?

Mr. Edward M. Genson: The point that I am trying to make Mr. Justice is that a lineup can be held, a lineup can be fair without an attorney present, it is possible.

A preliminary hearing sir, it is my contention cannot be fair.

Unknown Speaker: I know, but it might be harmless error that even after the preliminary hearing also could be fair even though there was no counsel present.

Mr. Edward M. Genson: The logic --

Unknown Speaker: I mean, on your approach --

Mr. Edward M. Genson: I am listening.

Unknown Speaker: Would there be any room for harmless error?

Mr. Edward M. Genson: In --

Unknown Speaker: In your approach.

Mr. Edward M. Genson: In my approach, if Your Honor please, the logic of Brennan -- he logic of Mr. Justice Brennan in Coleman would not allow for a harmless error remand, no sir.

But it should and under my contention I would think it should be a person.

Unknown Speaker: Yes, and then to that extent would we not have to modify or overrule what we said about harmless error in Coleman?

Mr. Edward M. Genson: I think that one, it is not necessary to conclude because that there was a harmless error remand that the case should not be retroactive.

I think the determination of whether or not a case should be retroactive revolves and relies on all three criteria.

Unknown Speaker: Well that makes -- but is it not rather inconsistent to say that maybe harmless error even in situations respectively were spoken about, do you say that Coleman per se actively retroactive.

Mr. Edward M. Genson: I am not saying -- well, no I do not think so.

Unknown Speaker: Mr. Genson, while we have you interrupted, was the Illinois Court unanimous in its decision here?

Mr. Edward M. Genson: The Illinois Court where there was not dissent.

I do point out though that there had been one dissent in the initial finding or the finding of People versus Bonner.

That was by Justice Schauer.

Unknown Speaker: If he went along in this case.

Mr. Edward M. Genson: He did not write a dissent, there was no dissent, it is not -- they do not record as I understand it, the findings in Illinois, if the judge does not write a dissent.

The second consideration in link whether it is a reliance of the law enforcement authorities on the over rule.

It is our position that the state does not have standing argument.

Reliance in non-retroactivity applied to a case where that error was pointed to them at trial.

It is further our consideration that we are dealing with different types of law enforcement authority.

Is it by law enforcement authorities we mean the police officers and police investigative technique certainly there was no reliance there and I think there is a far greater argument for retroactivity where police investigative techniques as opposed to Court procedures are involved.

Now, I would like to point out, they are the differentiation in Stovall, because in Stovall we were dealing with various investigative techniques that it was arguably made that the police were depending on it, at the time of the waived decision.

In this particular case though this does not reflect that, it reflects only of the effect on the Courts and I think that is properly dealt with the last point, the administration of justice.

Lastly, relative to the reliance point, I would like to point out that the Coleman opinion as pointed out by many of the opinion in the decision was certainly foreshadowed by the decisions that proceeded it and perhaps not relied on by some of the State Courts, it should have been because of the different opinions by the Court relative to the right of counsel.

The third criteria that I would like to point -- that the link rather points out is the effect of the new rule on the retroactivity of the new rule on the administration of justice.

The effect of this case, we feel is negligible because we are asking that rule to be applied and limited to only those cases where it is raised the trial.

That is if a man has counsel at trial and if the counsel does not raise or make issue of the fact that he did not have an attorney at the preliminary hearing, we are asking that the Court deemed this to be waived and not apply it retroactively as to those cases where it has been raised as it has been raised in this case, we would ask that it be quite applied retroactively.

I think the effect on the administration of justice as to that type of application certainly would be negligible.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Genson.

Mr. Gildea.

Argument of James E. Gildea

Mr. James E. Gildea: Mr. Chief Justice and may it please the Court.

Must I forget to mention this I would like to first deviate from my prepared text in connection with the questions concerning the Bonner case and Justice Schauer's dissent.

I would urge Your Honors to consider the fact that Justice Schauer dissent at that case did not address itself to the constitutional question.

It addressed itself to a matter of statutory interpretation as construed by the majority of the Court’s statutory interpretation under the Illinois law.

We had a statute that provided that counsel was to be appointed at the preliminary hearing if a defendant was indigent.

We had another statute saying that at the point of arraignment no plea was to be taken without appointment of counsel.

The Bonner case construed the two statutes to be imparting a curia and held that the two provisions required only that counsel be appointed prior to any plea wherever interposed and Justice Schauer took umbrage with that and took exception and it was his opinion that the Illinois statute provided otherwise.

However, he did not dissent on the basis of any constitutional questions.

As to the factual background of this case is Your Honor, this case charged the defendant with the sale of narcotics and it was a what we call a controlled sale and that an informant was used in connection with two police officers.

The defendant was arrested immediately after the alleged incident and he appeared in Court the following day.

The case was then held on call for one day and continued variously.

Subsequently there was a preliminary hearing and we conceive that the counsel was not appointed by the judge at the preliminary hearing.

There was testimony introduced at that point from one witness, one of the officers upon the testimony of that officer the judge found probable cause and held the defendant to answer to the grand jury, indictment was returned and it was not until the day that the case was set for trial that counsel for the defendant filed his motion in connection with a claim for having his constitutional rights violative by a failure to appoint counsel at the preliminary hearing.

And in that connection, the motion that was filed was a motion to quash the indictment.

It was not a motion asking for a preliminary hearing and the defendant did not in his motion alleged that he was in fact indigent and therefore required the appointment of counsel.

And furthermore the defendant did not allege that he suffered any prejudice during the course of their preliminary hearing.

Now, addressing myself to the principal issues here, since Linkletter versus Walker on -- down through the recent cases that the Court pronounced last year in speaking in terms of Williams and Hill and Elkanich.

The Court has applied a three fold test in determining whether or not a new constitutional doctrine should be held retroactive.

In that connection the Court has stated that deciding that issue the Court will look first of all to the purpose of the new constitutional doctrine, secondly, to prior reliance on previous standards and thirdly, to the effect on the administration of justice.

Addressing myself, first of all to the purpose of the constitutional doctrine as pronounced in Coleman versus Alabama, the Court stated that the purpose was to secure for a defendant advantages prefatory to trial and in that connection the Court mentioned six possible advantages.

The Court said that the presence of counsel at a preliminary hearing might be effective in preventing a possible bind over to the grand jury by making effective arguments and cross-examination or whatnot.

Secondly, he could perhaps to secure a lower bail or bail initially and he would have some bearing or he would have some influence on that determination.

Thirdly, by cross-examination, he could perhaps create material for impeachment at trial.

He could discover the -- some of the State’s evidence that would be used to trial.

He could perpetuate favorable testimony for a later date and then he could secure an early psychiatric examination.

Now, with connection to the purpose -- aspect of the purpose criterion, the Court said that where the major purpose of a new constitutional doctrine is to overcome an aspect of the trial would substantially impair the truth finding process so as to create serious doubt as to the reliability of a guilty verdict.

In prior cases this Court will hold the doctrine retroactive.

In that connection we submit that the purposes espoused in Coleman for the appointment of counsel at a preliminary hearing do not go to that degree.

We do not believe that the functions to be served by counsel at a preliminary hearing have any substantial effect on the truth finding process at a subsequent trial.

And we do so for the following -- we make that assumption for the following reasons.

Addressing ourselves point by point to the intended effects to be served by the presence of counsel at a preliminary hearing, we have first the prospect that the presence of counsel could prevent a bind over to the grand jury by cross-examination and by argument and he could secure perhaps a lower bail.

Bearing in mind that the function of a preliminary hearing is only to establish probable cause, we submit that those two considerations would have no bearing on the subsequent trial would have nothing, no impact on the truth finding process at a trial and in fact would be mooted by subsequent guilty verdict.

Since the standard proof at a trial is beyond a reasonable doubt and standard of proof at a preliminary hearing is merely a probable cause, we submit that in effect a jury finding would overcome any impediment in these two aspects that would be suffered by the defendant by failure to have the appointment of counsel.

As to the possibility of securing an early psychiatric examination and perpetuating favorable testimony, we submit first of all that these two considerations would occur very rarely in the normal criminal process.

As to the perpetuation of favorable testimony there is also this consideration that is this, whether or not defense counsel would in fact want to do so bearing in mind that by perpetuating favorable defense testimony he would have to in effect declare his defense prior to trial.

Now first of all, preliminary hearing generally takes place and it is designed to take place shortly after arrest.

At that point, the defense counsel has had a little opportunity to investigate into the allegations of the State's case.

So, generally he has insufficient knowledge to frame a defense bearing in mind that he would want to frame his defense only after he has heard the State's case or has ascertained the states case to determine whether or not he in fact would want to declare and interpose a defense and bind himself at a subsequent trial.

Chief Justice Warren E. Burger: Well, Mr. Gildea, are you not arguing the Coleman case now and we are -- that is behind this?

Mr. James E. Gildea: Yes Your Honor.

I am but I am only arguing in the sense that I am addressing myself to whether or not the failure to have counsel at a preliminary hearing will create any substantial incurment of the truth finding process at trial and that is why I address myself in that way and perhaps I did not understand the Court’s question.

Chief Justice Warren E. Burger: I thought the issue in this case was just, whether Coleman was to be retroactive?

Mr. James E. Gildea: That is correct Your Honor.

And in answering, attempting to answer that question, I proceed on the basis of whether or not the denial of counsel at the preliminary hearing would have any substantial effect and in result substantial effect on the truth finding process of trial and addressing myself to the functions of counsel or the purposes or the advantages to be secured by counsel at a preliminary hearing that is espoused by Court in Coleman.

Addressing myself to those specific remarks, I feel that in that connection by not having counsel for that purpose the defendant would not suffer any substantial incurment as the truth findings functions at trial.

Justice Thurgood Marshall: The sentence you are saying that nothing can be accomplished, why do lawyers retain counsel, a waste of time at preliminary hearings?

Mr. James E. Gildea: Well, it was not my intention to say that nothing can be accomplished.

I simply say --

Justice Thurgood Marshall: Why, if you admit that something could be accomplished then where are you with solving this?

Mr. James E. Gildea: Well, something can be accomplished but something could also have been accomplished in Miranda, something could also have been accomplished in Wade and Gilbert and --

Justice Thurgood Marshall: You have only got Coleman there.

Mr. James E. Gildea: That is correct but in the resolution of -- whether or not this substantially affects a subsequent trial.

The same things could be said in Wade and Stovall and Gilbert that something could be accomplished but does that mean by mere virtue of the fact that something could be accomplished by the presence of counsel.

Justice Thurgood Marshall: Well, would not the presence of counsel increase the truth finding process?

Mr. James E. Gildea: That would be I think a -- the very least it could do is just speculation.

I do not think that --

Justice Thurgood Marshall: You do not think that defense counsel do its cross-examination that aid the truth finding factor.

Mr. James E. Gildea: I think there is the possibility it could.

It is -- again it is matter of probabilities in degree.

Could we say though in all instances he would?

I -- that I would say no but I would say he could also to the same degree aid the truth finding process by attending a lineup.

Justice Thurgood Marshall: Have you not read Law Review Articles of famous criminal lawyer said they would never waive a preliminary hearing under any circumstances.

You think they are just nuts?

Mr. James E. Gildea: Well, it is not a question of waiving a preliminary hearing.

No Your Honor, I would not waive a preliminary hearing and this is not a question --

Justice Thurgood Marshall: What is the difference between waiving the preliminary hand and being there without counsel?

Mr. James E. Gildea: The question is what will a counsel do at a preliminary hearing?

Will he affect, do the things that the Court --

Justice Thurgood Marshall: Well, he will cross-examine, is it not?

Mr. James E. Gildea: He will cross-examine, yes Your Honor.

I would think he would.

Justice Thurgood Marshall: Because he has not got a thing in the world to loose.

Mr. James E. Gildea: That is correct.

Justice Thurgood Marshall: So he will cross-examine.

Mr. James E. Gildea: That is correct.

Justice Thurgood Marshall: Is that not helpful to the truth finding?

Mr. James E. Gildea: Yes.

It is helpful but is that -- are there alternatives because that also has to be considered.

Could he by discovery ascertain the same things and is it --

Justice Thurgood Marshall: Only in Illinois?

Mr. James E. Gildea: He has the right to interview witnesses, he gets to -- he has a right under his pretrial motions to a list of witnesses, he can ascertain the identities of the witnesses and he can talk to the witnesses.

Justice Thurgood Marshall: Can he cross-examine them under oath?

Mr. James E. Gildea: No, he cannot Your Honor.

But that may not be critical.

However, he has -- does have access to their testimony at the preliminary hearing.

He does have access to the testimony before the grand jury and he cannot frame questions during his cross-examination at trial in reference to their testimony at these preliminary stages.

I say these things because the Court has remarked in Stovall and I believe in Johnson versus New Jersey that the question of -- is a question of probabilities and Mr. Justice Marshall’s remarks are well taken but I would say that by the same degree, by the same token that Griffin versus California could have an effect on the truth finding process.

And in that connection I would say this -- that Bloom versus Illinois and Douglas versus Louisiana could also have an effect on the truth finding process of trial and I will also say that Miranda and Gilbert and Wade could also have an effect on the truth finding process but could we say simply by virtue of that fact that they would have a substantial effect so as to require that in all cases the rule should be applied retroactively.

Judged by the standards that were employed in Gilbert and Wade and in Miranda, we submit that the defendant would suffer no greater adversity by the absence of counsel at a preliminary hearing than it would in most cases.

And for that reason that -- the rule should no more be applied retroactively here than it would in Gilbert, Wade and Miranda.

Unknown Speaker: Does Illinois concede the possibility even if you are -- if we agreed with you that there should not be retroactivity of a due process exception as to cases preceding Coleman?

Mr. James E. Gildea: I would exceed that -- I would agree to that Your Honor and as a matter of fact in Bonner and in the Illinois cases, the Court has held where a defendant can show that he suffered prejudice or adversity by the failure to appoint counsel at the preliminary hearing then that in itself will entitle them to relief.

Unknown Speaker: Is that been the Illinois rule before Coleman?

Mr. James E. Gildea: Yes Your Honor that has been.

Unknown Speaker: I see.

Mr. James E. Gildea: And that has been, from the time of Morris at least until the time of Morris on -- up to the present.

Justice Potter Stewart: Now, that rule was restated in the Bonner case, would it not?

Mr. James E. Gildea: Yes Your Honor.

Justice Potter Stewart: At least the Court had opinion in this case.

Mr. James E. Gildea: Yes Your Honor.

Justice Potter Stewart: Was that based on the Due Process Clause of the Fourteenth Amendment or just on Illinois law or --

Mr. James E. Gildea: I think it is --

Justice Potter Stewart: Or Illinois constitutional --

Mr. James E. Gildea: The Due Process Clause, I think it has reference to perhaps White and Hamilton at the same time.

Unknown Speaker: That is based on the Federal Constitution not on Illinois law?

Mr. James E. Gildea: That is correct Your Honor.

I might also say that the preliminary hearing in Illinois is not particularly suited for the utilization or the gaining of the benefits that were intended on the Coleman rule, for example, that in the State of Illinois there is no requirement that a preliminary hearing be attended by a court reporter or a transcript be made of the testimony.

The Court is only required to hear so much evidence as will give rise to conclusion in his mind that there is probable cause.

That is that the defendant -- that a crime was committed and that this particular defendants before the bench committed it.

The presumption is therefore that the judge could hear just testimony from one witness and would not necessarily have to hear defense testimony.

Furthermore, the testimony at a preliminary hearing maybe based upon hearsay evidence solely.

And generally the rule is, or the practice is, the same as with grand jury matters and that is that the State will only call one witness, generally a police officer and he will relate what facts were revealed by the process of his investigations.

So, in reality there is not that great of an opportunity to secure material for impeachment and to discover that much about the State’s case.

As to the second criterion used by the -- or used by the Court as practiced in determining whether or not a case should be held retroactive that being the question of reliability, we submit that the State of Illinois did in good faith rely upon prior standards.

The only cases that were before the Court concerning the question of appointment of counsel were of course Powell versus Alabama which concerned itself with the effect that -- counsel at trial.

I do not believe that bears on the Coleman question.

Other than that we had Hamilton versus Alabama and White versus Maryland.

Hamilton versus Alabama was a question of concerning the appointments of counsel in an arraignment.

Now, in Illinois counsel is required to reappoint arraignment and under Hamilton, of course the arraignment there differed, we believe drastically from the preliminary hearing in Illinois in this respect in Hamilton versus Alabama of course, the defendant had to assert rights there such as a plea and abatement.

A challenge to the composition of the grand jury and (Inaudible), I assume too or by not doing so he would forever waive those rights.

Now, under Illinois law as interpreted in People versus Bonner, there was no binding effect that a defendant could suffer by not having or by not asserting any rights or by not objecting to any evidence at the preliminary hearing.

Indeed if he testified, that testimony could not be used against him during a subsequent proceeding and he was not bound by a failure to assert any defense.

And of course in White versus Maryland the – there, there was a plea of guilty interposed by the defendant at the preliminary hearing which was used at his trial.

And that ipso facto did bear upon the truth finding process at the trial since it was considered by the Trial Court.

Now Illinois as relied on this distinction has pointed out the distinction in People versus Bonner, in that connection I would call the Court’s attention to the fact that we were not alone in doing so.

There were some 33 other jurisdictions that also pointed to that fact in distinguishing their preliminary hearings from those in White versus Maryland and as against the arraignment proceedings in Hamilton versus Alabama and as to amongst those 33 other jurisdictions, all of the Federal Courts of Appeals subsequent to 1963 did themselves hold that where the preliminary hearing was not such as to bind -- defend at the trial that the requirement of counsel was not of constitutional dimension.

So, we submit there was no clear foreshadowing of the Coleman Doctrine prior to the announcement of Coleman that the Illinois Courts could be bound by it.

As to the effect upon the administration of justice, the appellant asserts that it is his contention that this would not affect a great number of cases in Illinois because of the fact or a great number of cases anywhere because of the fact that it is his contention that the failure to interpose an objection on that basis must be considered a waiver and we consider that -- we believe that that is a misinterpretation of the law as stated by this Court in O’Conner versus Ohio where it said that a defendant could not be deemed to waive an objection to a constitutional question that was subsequently pronounced because it could be no more binding on him that it could be upon the States who could not have anticipated such a ruling.

So I do not believe that he is correct in his say as to that point.

Justice William J. Brennan: I gather your Bonner rule -- it does not matter whether the objection is made, does it not?

Mr. James E. Gildea: No, Your Honor, it does not.

Justice William J. Brennan: Whether it is -- whether made or not if that prejudice is shown that he is entitled to release?

Mr. James E. Gildea: Whether there has been an error -- a question of substantial magnitude, a constitutional magnitude, the waiver doctrine does not preclude the defendant from not making that assertion at the first time or an appeal or in a collateral proceeding.

As recently as 1965, some two-thirds of the States of this union did not provide for the appointment of counsel at a preliminary hearing.

It was not until 1964 that the Federal Courts adopted Section 3060 of Title 18 providing for the appointment of counsel in federal cases.

So that we submit that there is a vast number of cases prior to 1964 and 1965 that would have to perforce be affected by any ruling by this Court holding the requirement of counsel at a preliminary hearing retroactive.

Furthermore, since in Illinois and I believe in many other States a transcripts of the preliminary hearing is not required.

It becomes a very difficult question to determine how if Chapman, if the case is to be remanded on the bases of Chapman versus California for a determination of whether or not there was harmless error, how could that be established where there was no transcript of the preliminary hearing in which anybody can decide what in fact happened at the preliminary hearing.

Furthermore, what criteria would be used by the Court to decide whether or not failure to cross-examine, failure to object would have any substantial effects on the truth finding process of the trial?

How could that determination be made?

We are dealing in a very naiveties area.

The problem of finding change, there would be no standards, no guidelines that the Court could use and as to cases going far back, I question whether or not it could even be ascertained at least from the State's point of view, whether or not the petitioner did have the benefits of counsel or not.

Justice William J. Brennan: I gather most of those missed prior proceedings, no transcripts were made, no record even taken (Voice Overlap)?

Mr. James E. Gildea: That is correct Your Honor.

That is correct.

Justice William J. Brennan: What about today?

(Inaudible)

Mr. James E. Gildea: Well, the rule has been changed drastically because of the recent opinions and now they are compelled to do so for this very reason.

Also addressing myself to one or two remarks that were made by my colleague in his presentation, I might say that the failure to move to suppress any physical evidence prefatory to trial is -- does not preclude the defendant from making such a motion at trial.

Thank you.

Chief Justice Warren E. Burger: Thank you.

You have seven minutes left counsel.

Rebuttal of Edward M. Genson

Mr. Edward M. Genson: Just briefly speaking and may it please the Court.

Justice Schauer in his dissent in Bonner did deal with constitutional issues and as a matter of fact stated that if constitutional issues are to be considered, this is the last two paragraphs of his opinion, the appropriate constitutional reference in my opinion is Escobedo versus Illinois in which it was held that a constitutional right of counsel was abrogated when a suspect was denied an opportunity to consult with his retained attorney.

Following that he points out to the -- he points out the different advantages a defendant would have where he would have had an attorney at the trial.

So, Justice Schauer did in his concurring opinion or in his dissenting opinion in Bonner did speak to the constitutional issue.

Further, I would like to point this out that relative to the motion to dismiss the indictment that was filed, the motion to dismiss indictment within Illinois had the same effect as the motion to request a preliminary hearing.

The indictment would have been dismissed, the statute of limitations would have been tolled, there would have been no difference.

Thirdly, I would like to say this, whether in fact a harmless error could be shown would depend I think on the individual case, and therefore, it would become relevant whether a case was a strong or weak one.

In this case the testimony revolved around the uncorroborated statement or substantially uncorroborated statement of an addict informer who allegedly purchased narcotic during a substantial period of time, though the policemen were not present and a lot of things could have happened.

In Illinois --

Unknown Speaker: (Inaudible)

Mr. Edward M. Genson: In Illinois and on the basis of the different appellate opinions, a sale of narcotics to an addict informer which is substantially uncorroborated would merit reversal.

The Courts in the -- the Court has in cases dealing with the right to counsel as a judicial proceeding have held this to be retroactive in the past.

We are contending and asking in the present case that this be done here too.

One more thing I would like to point out.

The due process exception in Bonner or alleged due process, there is nothing in Bonner which specifically states that a man has a remedy if he could show prejudice and I think one of the difference and perhaps if this Court and their opinion would point out the difference, one of the differences between Coleman or Stovall and Johnson and Coleman is in Stovall, we specifically state that there is a due process or a stopgap in the event because it is not being held retroactive.

In Johnson, they specifically say that the due process is stopgap relative to the issue of voluntariness.

The Bonner case in Illinois does not set out any test whatsoever as to whether or not something should devolve or be a violation of due process.

The only remarks in either Bonner or Morris is that in this case no prejudice was shown.

It does not state specifically that if prejudice would be shown that we would -- that there would be any opportunity for the defendant to waive this in any way.

So I think this is another important difference between Stovall, between Johnson and between Coleman in that in Stovall and Johnson there is an expressed exception, a due process exception.

There would be none under Illinois law specifically.

There is nothing in Illinois that leads to it.

The last point I would make is the analogy between or the analogies made between Bloom, Duncan, Griffin, relative to the effect on the fact finding process.

Coleman dealt with a Sixth Amendment right to counsel just as Gideon dealt with the Sixth Amendment right to counsel.

Bloom and Duncan in order to assume a lack of fairness would have had to assume that the judge that heard the case was prejudiced.

Griffin concluded that this was a Fifth Amendment protection.

In this case, Coleman is a Sixth Amendment protection and the Sixth Amendment protection at a judicial proceeding and this is in a -- we feel that the exception is broad enough here to the other cases.

The differences are clear enough as to one claim of retroactivity.

Thank you very much, Your Honor.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.

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