Cases by Issue - Inadequate Representation by Counsel

Penson v. Ohio - Oral Argument

Sun, 06 Feb 2011 03:46:17 +0000

Case:

Penson v. Ohio

Media File:

87-6116_19881012-argument.mp3

Related Transcript:

87-6116_19881012-argument.xml

Transcript:

ORAL ARGUMENT OF GREGORY L. AYERS ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We'll hear argument now in No. 87-6116, Steven Penson v. Ohio.

Mr. Ayers, you may proceed whenever you're ready.

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

The issue in this case is whether Steven Penson was denied his right to counsel on his direct appeal in the Ohio Court of Appeals.

We would submit the facts of this case clearly demonstrate that Mr. Penson's lawyer deserted him with the permission of the Court in a case that presented arguable issues.

I'd first like to give the Court some of the factual background of the case, and then get into our legal contentions.

Mr. Penson was tried, along with two co-defendants, for a number of criminal charges.

After he was convicted, all three, because they were indigent, were appointed counsel.

The two co-defendants' appellate lawyers filed briefs on their behalf.

Mr. Penson's lawyer did not file a brief.

Instead, Mr. Penson's lawyer filed a one statement certificate with the Court stating that there were no errors requiring reversal, modification, or vacation of his sentence.

He further indicated that he would not file a meritless appeal, and he moved to withdraw as counsel.

A week later, the Ohio Court of Appeals granted his motion without reviewing the record or without requiring a brief from him.

The Court subsequently refused to appoint counsel for Mr. Penson upon his request, and then, several months later, proceeded to decide the appeal.

The Court, in its decision, expressly disagreed with counsel as to whether there were reversible errors in the case.

In fact, the Court found one reversible error, and reversed one of the counts on the indictment.

The Court further found that there were several arguable errors as presented in the briefs of the co-defendants.

But instead of appointing counsel, as we submit the Court was required to do, the Court determined that its own error in not appointing counsel was not prejudicial to Mr. Penson, because it had examined the record and the errors submitted by the co-defendants in their briefs.

Unidentified Justice: Of course, the mere fact that the Court found an error that counsel did not find doesn't show that he was effectively deprived of the assistance of counsel.

I mean, that could have happened if counsel had filed a brief--

Mr. Ayers: Well--

Unidentified Justice: --That raised nine issues all of which the Court rejected but found, the Court might have found on its own a tenth issue, and you wouldn't--

Mr. Ayers: --Well--

Unidentified Justice: --You wouldn't be able to argue in that case that he was denied effective assistance.

Mr. Ayers: --Well, I agree with you, Justice Scalia.

The Court did give the, the defendant, Mr. Penson, the benefit of one of the issues raised by one of the co-defendants, and that was the count that was reversed.

Where the Court denied Mr. Penson his appellate right to counsel in this situation was where the Court found arguable issues that this Court has held in... repeatedly, in a number of cases, that the Court in that situation must appoint counsel.

Unidentified Justice: What useful relief can we give Mr. Penson in this case, assuming that everything you say is, have said so far is correct?

Does he go back and have a lawyer argue his case again to the Ohio Court of Appeals?

Is there any real chance they would change their mind?

Mr. Ayers: Well, that is precisely the relief that we are asking.

Mr. Penson has never had a lawyer to argue the appeals in his case.

We have pointed out in the reply brief a number of issues that were not raised by co-defendants' counsel.

Mr. Penson has not had a lawyer to review the case from the perspective of his position in the case.

The co-defendants' lawyers were reviewing the case from the perspective of the co-defendants.

They were review... he was... they were reviewing issues relating to the co-defendants.

They were not advocating on behalf of Mr. Penson, and it's a different kind of a representation.

Unidentified Justice: Do you make any argument here as to the fact that this error was not harmless, or do you say no harmless error standard can be applied?

Mr. Ayers: We submit that where counsel was denied, this Court has never applied a harmless error standard.

Unidentified Justice: Well... Mr. Penson had counsel.

The counsel didn't perform as he should have.

Mr. Ayers: Well, counsel was effectively absent, your Honor.

I think the precedents of this Court indicate that when nominal counsel is not sufficient to satisfy the Constitution, the counsel must engage the adversary process.

He must provide some assistance.

Counsel was effectively absent in this case.

He did not assist in any way.

He did not file a brief, he didn't do anything.

Unidentified Justice: You don't know that.

Mr. Ayers: This is a... this is now--

Unidentified Justice: He certainly purported to do something, Counsel, didn't he?

I mean--

Mr. Ayers: --The only--

Unidentified Justice: --He represented to the Ohio Supreme Court that he had studied the case, and in his judgment, there were no issues that would justify reversal.

Now, his judgment turned out to be wrong.

But it could have turned out to be wrong if he had filed a brief as well.

You can't really say that counsel didn't work on the case.

Mr. Ayers: --Well--

Unidentified Justice: All you know is that counsel, having worked on it, decided, incorrectly, that there was nothing in the case worth arguing.

Right?

Mr. Ayers: --Counsel did state that he carefully reviewed the record, and that he found no reversible errors in the case.

He did not say the case was frivolous.

He did not file a brief, as this Court has--

Unidentified Justice: Wasn't the same type of letter in the Anders case?

Mr. Ayers: --It was exactly... it was exactly a no merit letter.

It was a one-sentence statement saying there was no merit to the appeal.

Unidentified Justice: Like the Anders letter case?

Mr. Ayers: Exactly.

He did not present anything to the Court to convince the Court that it was a frivolous appeal, and that is the bright line test that this Court has drawn between providing counsel or requiring counsel and not requiring counsel.

This Court said in Anders that counsel must be provided in a non-frivolous appeal where there are arguable issues.

In a frivolous appeal, counsel can withdraw.

But that is a very narrow exception, and that is only allowed where counsel demonstrates to the Court that it's a non, that it's a frivolous case.

But counsel in order to do that must present a brief to the Court and must raise issues that might arguably support the appeal.

And then the Court has to review the brief and to make that determination as to whether counsel is correct.

Neither of those obligations were met by counsel in this case.

In fact, that Court expressly disagreed with counsel and found arguable issues.

This Court's decisions in Anders and subsequently, this past term, in McCoy indicate that counsel must be appointed in that situation.

Unidentified Justice: Well, counsel was appointed here.

Mr. Ayers: Counsel was appointed.

Unidentified Justice: But he... he didn't serve the way he ought to have under the Anders rule.

But that's not a failure to appoint counsel, that's counsel's mistakes.

Mr. Ayers: Well, of course in the McCoy case, the Court said that count... once the Court determines that there are arguable issues, counsel must be appointed and must be required to file an Anders brief.

Otherwise, the right to counsel becomes illusory.

And you can have a defendant with arguable issues not getting his issues presented to the Court.

I think the bright line test of Anders is a narrow exception to the Douglas v. California right to counsel, and it has to be a narrow exception, and it has to be strictly applied or the right to counsel becomes very illusory.

And--

Unidentified Justice: Anders doesn't assure that the arguable issues will be presented to the Court either.

It doesn't... an Anders brief would not give 100 percent assurance that the good arguable issues would be presented to the Court.

You could have counsel who files an Anders brief that is simply a bad brief.

He misses the real issues and decides to address non-issues.

Mr. Ayers: --That's... it's... that's possible.

Unidentified Justice: That's possible.

Mr. Ayers: That's possible.

But the Court is still required to look at the brief, and once it reviews the record, it can make that determination as to whether counsel has made an adequate review.

If it finds arguable issues, and finds that counsel's conclusion that these errors are frivolous is incorrect, then counsel... the Court at that point is required to appoint counsel to protect the right to counsel and have those issues presented.

That is what Anders requires, and I think that the Court made that clear this past term in McCoy, that once an attorney claims that an appeal is frivolous, that two Constitutional concerns must be met.

One is that the attorney make a diligent review of the record, and the Court is satisfied that he's made a diligent review of the record for arguable claims; and secondly, that his conclusion is correct.

Neither of those concerns were met in this case.

In fact, the lower court found that there were arguable issues.

Under Anders and McCoy, the Court was required to appoint counsel.

It in effect resulted in Mr. Penson being denied counsel.

He did not have an advocate on appeal.

And I think Douglas makes that very clear, that that is not only a denial of due process, it's a denial of equal protection.

In a situation where you have arguable issues, a monied defendant can go out and hire a lawyer and obtain the benefit of advocacy in a brief, and have these issues presented to an appellate court.

Unidentified Justice: We wouldn't say that Anders was not satisfied if this same attorney... let's assume this same attorney, instead of filing a letter with the Court saying

"I don't see any arguable issues. "

suppose he said,

"Well, I'll write down nine issues that don't seem to me arguable at all. "

He writes down those nine issues that he thought in this case were not worth making... but he writes them out, and he says, "I'll make them anyway"... missing three good issues.

All right?

What would be the result?

Would Anders have been satisfied?

Mr. Ayers: I think not, your Honor, because once the Court gets his brief, then the Court is further required to review the record and make sure that his conclusion is correct.

Once they identify those issues, then the Court is required to appoint counsel at that point.

Unidentified Justice: Oh, I see.

What you're arguing in this case is, it's not just the total absence of filing a brief, but rather, whenever a Court finds an arguable issue that is not raised in an Anders brief, it has to appoint new counsel to argue that arguable issue.

Mr. Ayers: If the Court disagrees--

Unidentified Justice: I didn't realize--

Mr. Ayers: --with counsel--

Unidentified Justice: --I see.

Mr. Ayers: --if the Court disagrees... I think in most Anders situations, the Court ends up relying upon counsel and accepting counsel's representation.

Unidentified Justice: We've never held that, have we, that you have to... if the Court disagrees with a no merit presentation in Anders, the Court then has to appoint another counsel?

Mr. Ayers: Yes, I think the Court has expressly held that in Anders and McCoy.

The Court said in McCoy, to repeat myself, that if the Court determines that there are arguable issues then the Constitution requires that a lawyer be appointed to argue those issues.

Otherwise, the right to counsel can be denied in a situation where you've got non-frivolous issues, and Anders draws the line in terms of the right to counsel between frivolous and non-frivolous procedures.

Unidentified Justice: Well, did either of those cases involve a situation in which a Court had found... had found that the no merit statement was wrong, and that there were arguable issues?

Mr. Ayers: In either the Anders or McCoy situation?

Unidentified Justice: Yes.

Mr. Ayers: In the--

Unidentified Justice: I mean, I was asking about a holding, not about language in cases.

Mr. Ayers: --Yeah.

In the Anders situation, the no merit letter was filed, and the Court agreed that there was no merit to the appeal.

This Court reversed, finding that the no merit letter was not adequate to protect the defendant's right to due process and the--

Unidentified Justice: Yeah.

Mr. Ayers: --equality with--

Unidentified Justice: But what I was asking about was a situation where Anders is complied with and the Court disagrees with the presentation.

You say there is a case from this Court holding that there counsel... a new counsel must be appointed.

Mr. Ayers: --I... I think Anders expressly says that.

Unidentified Justice: Do... did it hold that?

Mr. Ayers: Yes, I believe it did hold it.

Unidentified Justice: Do you understand what a holding is?

Mr. Ayers: Yes.

Unidentified Justice: And you say it held that?

Mr. Ayers: The Court did find--

Unidentified Justice: Well, but find... holding means that a particular question is presented for decision, the case turns on that, and the Court adopts one view or another of--

Mr. Ayers: --Well, I--

Unidentified Justice: --that particular question.

Mr. Ayers: --I understand what the Chief Justice is driving at now.

That particular procedure was dicta in Anders.

The Court--

Unidentified Justice: It wasn't in McCoy?

Mr. Ayers: --The... the issue in McCoy wasn't precisely that.

Right, the issue in McCoy was whether or not counsel could be required to show why the issue was frivolous or explain to the Court why.

Unidentified Justice: But if Anders covers you, why do you want to extend it?

Mr. Ayers: Anders... our position is that Anders does cover our situation.

Unidentified Justice: Well, why do you want to extend it?

Mr. Ayers: I'm not asking--

Unidentified Justice: Why don't you just rely on that?

Mr. Ayers: --I'm not asking the Court to extend it.

Unidentified Justice: I think you are trying to extend it, and for no good reason.

Mr. Ayers: Our position is that the Ohio Court of Appeals did not comply with the Anders exception.

It found expressly that there were arguable issues, and under the Anders decision, the Court was required to appoint counsel.

Unidentified Justice: Was that, this, a harmless error?

Mr. Ayers: That's expressly our position, and I don't want the Court to misunderstand that.

Unidentified Justice: Does the harmless error test apply there, or do you say that there can be no harmless error analysis?

Mr. Ayers: Well, this Court did not apply a harmless error test in Anders or in Douglas where the Court had reviewed the record and made that conclusion.

We would submit that where there is denial of counsel, this Court has never held that in a harmless error test is applicable.

This Court is automatically reversed because the right to counsel is so fundamental to not only the trial process but the appellate process also.

If counsel was not present and participating in the appellate process as an advocate, then the process really hasn't occurred.

Unidentified Justice: Well, but you know, at the trial stage, when you don't have counsel, you... it's really possible to say, it's hard to say that error is harmless because you don't know what the record would have read like, had you had counsel.

You don't know what facts would have been in there.

It's very hard to say that the error could be harmless.

At the appellate level, though, the facts are there.

The record is already there, and you could say that on the basis of this record... I don't care what appellate counsel you get... on the basis of this record which was made with counsel, there's no way that a jury could have found anything except that this person was guilty.

Mr. Ayers: Well, I think that--

Unidentified Justice: Isn't that a basic difference between the two levels?

Mr. Ayers: --I think the problem with that, your Honor, is that it overly burdens the appellate Court to engage in speculation as to what appellate counsel has done.

You've got two different rights here... the right to effective assistance at trial and a right on appeal.

You don't know what counsel would have done on appeal.

You can review the record to determine if counsel's performance at trial was adequate, but you have to speculate as to what counsel would have done with that record.

Appellate Courts are not in good positions to be advocates for defendants.

Independent review of the record does not satisfy the advocacy of a lawyer in an appellate Court, because the appellate Court has to speculate as to what would have been raised, the arguments that would have been made, and how the issue would have been decided.

It really makes... it really shifts the burden from the lawyer to the Court to decide the case--

Unidentified Justice: Wasn't that the--

Mr. Ayers: --and the advocacy process really hasn't worked.

Unidentified Justice: --Wasn't that settled in the Douglas case?

Mr. Ayers: Yes, precisely.

Unidentified Justice: I don't see what--

Mr. Ayers: We rely upon Douglas as well as Anders.

Unidentified Justice: --The Court could have gone on its own.

Mr. Ayers: Excuse me?

Unidentified Justice: The Court could have gone on without the lawyer in Douglas, but this Court said that you couldn't do that.

You had to give him a lawyer.

Mr. Ayers: Exactly, that a defendant on appeal benefits substantially from a lawyer's presentation in a brief of his examination of the record, research of the law, and marshalling of the arguments on his behalf, and that to deny that benefit to an indigent violates the Equal Protection clause, and that's the fundamental denial in this case.

This defendant, because he was indigent, was not able to go out and hire a lawyer to present these arguable issues, which the Court of Appeals found, to the Court.

He was stuck with the appellate lawyer, who effectively abandoned him before the Court.

He had no advocacy.

He had no brief.

In effect, he had no assistance.

This Court has said on a number of occasions that when counsel fails to perform, when he fails to engage the adversary process, that counsel is effectively absent.

That was the holding of this Court in Evitts v. Lucey.

And that's exactly what we have here: we have no counsel.

Unidentified Justice: In Evitts v. Lucey, no appeal was ever taken, was there?

Mr. Ayers: The appeal was filed, and the appeal was dismissed because counsel didn't comply with filing a statement on appeal.

Unidentified Justice: So nothing was done.

Here, I think, as Justice Scalia points out, the lawyer did something.

You say it was wrong, and grossly inadequate, but I don't think that's the same thing as just saying that he never... he wasn't even there.

Mr. Ayers: Well, the Court recognized, Mr. Chief Justice, in Evitts v. Lucey that the defendant must have more than nominal counsel.

Counsel must be effective.

He must engage in a performance which activates the adversary process.

Unidentified Justice: But now you--

Mr. Ayers: The attorney here did nothing, other than getting the appellate record to the appellate Court.

That's all he did in this case.

Unidentified Justice: --But you're suggesting that counsel must be effective, as I take it, the word you just used... in order for there to have been assistance of counsel furnished.

Mr. Ayers: No, absolutely--

Unidentified Justice: Now, we have, our Strickland case says exactly the opposite of that.

Mr. Ayers: --Absolutely... absolutely not.

Counsel is required.

Then he is to be appointed, then he is required to engage in a performance.

If he's not appointed, that's a Constitutional violation.

If he fails to engage in a Constitutional performance, that's a Constitutional violation.

Unidentified Justice: But is... but then how do you, how do you interpret Strickland?

Strickland says if it's claimed as ineffective assistance of counsel, you don't just automatically do the whole thing over.

You look at was there any prejudice.

Mr. Ayers: Well, Strickland, first of all, applies the prejudice test where you have a performance.

Strickland also says that where counsel is denied or is absent or fails to participate in the adversary process, then prejudice must be presumed, because counsel's presence and participation in the adversary process is essential to a reliable result.

Here we had no participation by counsel in the adversary process.

Strickland says that when counsel is absent or doesn't engage that process, then prejudice has to be presumed.

So I think in... we meet, clearly, a Strickland test, if the Court would choose to apply a Strickland test.

But I think as Justice Marshall has pointed out, that this is clearly an Anders and Douglas violation.

The Court does not have to apply an effective assistance test to this case.

We would submit that the prejudice test applied by the Court of Appeals in this case does not protect the right to counsel.

This Court held in Pennsylvania v. Finley that the Anders procedures were designed specifically to protect the right to counsel, and that necessarily... it necessarily follows if those procedures are not followed... if counsel may be allowed to withdraw from non-frivolous cases, then the right to counsel becomes illusory, and indigent defendants are not afforded equality with non-indigents on appeal.

That's the fundamental due process violation in this case.

It further invites attorneys to abandon appeals.

If Courts, or if defense lawyers know that they can be relieved without being required to file an Anders brief and demonstrate to the Court that an appeal is frivolous, then I think it would invite wholesale abandonment of clients and shifting of the burden to the appellate Court to engage in that decision making process without the briefing and the oral argument... the cornerstones of effective appellant decision making.

There must be an adversary process here, and counsel did not engage that process.

That's why it cannot be relied upon as producing a just result in this case.

We submit that presuming prejudice, if the Court looks at a Strickland test, if it applies to Douglas and Anders decisions, consistently with this case, demonstrates that the violation is easy to identify.

And it accords fundamental respect for the right to counsel.

This Court said in Ross v. Moffitt that an indigent must be afforded an adequate opportunity to present his claims to an appellate Court.

Mr. Penson was not afforded that opportunity.

He did not have his claims presented by a lawyer to the Ohio Court of Appeals.

Mr. Penson has simply not had his day in court.

We submit that that is a fundamental due process violation.

We've also pointed out issues, in our reply brief, that Mr. Penson would have raised that was raised by neither of the co-defendants.

That points out specific prejudice to Mr. Penson.

He has not had an opportunity to have those issues briefed and argued in the Ohio Court of Appeals.

That shows specific prejudice, if the Court is looking for prejudice.

If the Court does not have any further questions, I'll reserve the rest of my time for rebuttal.

Unidentified Justice: Thank you, Mr. Ayers.

Mr. Robinette, we'll hear from you.

ORAL ARGUMENT OF MARK B. ROBINETTE ON BEHALF OF THE RESPONDENT

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

I think initially I'd like to point out that there's a critical factual distinguishing feature between this case and the Anders case, and that's that in this case, the Court of Appeals found that although the record did contain arguable issues, it also found that those arguable issues had already been raised and decided in the appeals of the co-defendants.

And I would cite to page 41 in the joint appendix the language of the Court of Appeals, where it said

"our full consideration of each may be examined in the decisions rendered in the companion defendants' appeals. "

So I think that's a critical distinguishing factor from the Anders case.

Another point in Anders was that part of the reason for the reversal was that the appellate Court at the State level made no finding of frivolity.

It did not find whether or not there were frivolous issues in the case.

I think basically what we're faced with here is a case of ineffective assistance of counsel and not a case of denial of counsel.

I think the case is also distinguishable from the Douglas case because in Douglas the defendant had to make a preliminary showing of merit in order to have counsel appointed in the first place, whereas in this case, counsel was appointed at the outset.

As soon as the notice of appeal was filed, counsel was appointed on appeal.

There was no outside interference, there was no State interference with Counsel's ability to handle the appeal.

He had plenty of time.

He received at least two or three extensions of time to file his brief in the case.

There was no argument that there's... that counsel was laboring under any sort of conflict of interest that would have caused him any problem in his prosecution of the appeal.

I think what the issue boils down to is whether or not an indigent defendant in a criminal appeal has an absolute right to have a brief filed on his behalf, regardless of the merits of the case.

And it's the position of the State of Ohio that he has no such right.

Unidentified Justice: Well, does he have the right--

--What does that leave of the Anders rule?

Is it... if we rule for you, doesn't that simply undercut the Anders rule in any case where counsel doesn't want to file a brief?

We'll be right back to where we were before Anders.

Mr. Robinette: Well, I would point out that there's been a lot of criticism of the Anders briefing requirement--

Unidentified Justice: Well, then we should overrule Anders.

But it seems to me that what you're saying, in effect, almost does that.

Mr. Robinette: --I don't think it exactly overrules Anders, because I think a key feature of the Anders decision is the independent review requirement.

The Court is required to make an independent review of the record in order to determine whether or not any prejudicial error existed in the record.

I think that's a key here.

Unidentified Justice: Well, but we're talking about the duties of counsel, and Anders does have the administrative convenience of requiring attorneys, at least in the first instance, to identify the arguably salient issues in the case.

And it seems to me that that aspect of Anders is completely gone if we rule for you in this case, because counsel just files a letter that he's withdrawn.

Mr. Robinette: I think counsel is still required to be appointed, and he's still required to review the record.

I think what's needed is more flexibility on behalf of the State appellate Court.

The Court has a number of options.

The Court doesn't have to take counsel at his word.

It can review the record.

If it's not satisfied with his review of the-record, the Court can say,

"Go back and do it again. "

"We're not satisfied with the job you did. "

The Court can refuse to pay counsel if it doesn't think he did an adequate job.

The Court can appoint new counsel to go back and do a brief, or it can order the original attorney to file a brief.

I think the State appellate Court has a number of options here.

Unidentified Justice: Well, you sure, if you've got those options.

But is there any duty to do anything?

That's the question.

Here it did find arguable issues, and then having found that there were arguable issues, did it have any duty to appoint counsel to argue them?

Mr. Robinette: I don't believe so in this case, because the arguable issues had already been raised and decided.

I think if it found new arguable issues--

Unidentified Justice: But they'd been decided in a manner that did not let this litigant have a lawyer argue his view of those issues.

Mr. Robinette: --Well, he did not have a lawyer argue those issues in the Court of Appeals, I would agree with that.

But he did have a lawyer--

Unidentified Justice: The question is whether he was entitled to have that done for him.

Mr. Robinette: --I don't believe so, under the circumstances of this case.

Unidentified Justice: And what is the circumstance that justifies that result?

The fact that somebody else argued them for some other client?

Mr. Robinette: I believe if the Court finds arguable issues in the record, and those issues have not been raised and have not been litigated, then I think the Court has the option... perhaps the duty... to appoint counsel under Anders.

It would have--

Unidentified Justice: Well, if you say "duty", then why didn't it... then it violated that duty.

Mr. Robinette: --I don't believe so in this case, because those issues had already been decided.

I think it would be a--

Unidentified Justice: But they had been decided in a case to which this litigant was not a party, in which he didn't have a lawyer arguing his view of those issues.

Mr. Robinette: --But it is the same record, though.

They're all... there were three defendants jointly tried at trial.

They were all bound by the same record on appeal.

Unidentified Justice: Well, could you then say that in a joint trial like this, you don't need to appoint lawyers for all three of them, because they're basically the same?

Or just appoint one for one of the three?

Mr. Robinette: Well, I disagree with that.

I think that--

Unidentified Justice: Well, what's wrong with it?

Mr. Robinette: --I think--

Unidentified Justice: Why wouldn't that rule apply to that situation?

Mr. Robinette: --I think because... you might have some equal protection problems if you did not appoint counsel in the first instance.

Unidentified Justice: Well, then why don't you have an equal protection problem here?

Mr. Robinette: Because I don't believe, according to--

Unidentified Justice: Two of them got lawyers, and one did not, and they're similarly situated.

Mr. Robinette: --Well, as the Court said, as the Chief Justice said in Ross v. Moffitt, the Fourteenth Amendment does not require absolute equality nor precisely equal advantages.

Unidentified Justice: You can argue here but if you have absolute inequality, of three people, exactly the same position, you give a lawyer to two and not to the third, and there's no inequality there?

Mr. Robinette: I think there may be an inequality of representation rendered.

There's no inequality in the appointment of counsel in this case.

That's the key distinction, I believe.

Each, each defendant was appointed separate counsel to prosecute the appeal.

Two of them filed briefs, one moved to withdraw.

I don't think that creates an equal protection violation on the part of the Court.

Unidentified Justice: Do you think at the time the Court ruled on the motion to withdraw, it had considered the briefs filed by... on behalf of the other two defendants?

Mr. Robinette: Yes, it had.

It clearly... well, not at the time they ruled on the motion to withdraw.

Unidentified Justice: All right.

So at the time they ruled on the motion to withdraw, that... you admit that was error?

Mr. Robinette: I don't think that's the preferred practice.

I think they should have--

Unidentified Justice: Well, preferred?

Wasn't it rather clear that it was error?

I mean, you can admit a few things, I think.

Mr. Robinette: --Okay, I'll admit that was error.

Unidentified Justice: All right.

Mr. Robinette: But certainly if that's error--

Unidentified Justice: And so now, then they find out later on that there are arguable issues in a case in which the person has never... the defendant has never had an argument made for him.

Do they at that point have a duty to appoint counsel?

Mr. Robinette: --Not if they're not issues yet to be raised that have not already been decided.

Unidentified Justice: Because they've been raised by somebody else representing other clients?

Mr. Robinette: In the same case, based on the same record.

Unidentified Justice: Well, on that basis, you would never... there would be no obligation to appoint a lawyer in the first place.

Mr. Robinette: No, I think that--

Unidentified Justice: Suppose there's a request to appoint a counsel, and the Court says,

"Well, we'll rule on that at our leisure. "

and they look over the record, and the only issues they can see... possibly see... in the case are issues that have been decided in another case, on the same record.

And they say,

"Well, you're just not entitled to counsel, and your case is just not any good. "

Mr. Robinette: --I think you would have a problem with Douglas in that situation, your Honor, because counsel--

Unidentified Justice: Well, what's the difference between that one and this one?

Mr. Robinette: --I think the right to counsel guarantees the opportunity to have the assistance of counsel.

It doesn't necessarily dictate what counsel is going to do.

I think what counsel does--

Unidentified Justice: Well, this appellant didn't have the opportunity to have counsel.

The counsel walked out on him, on arguable issues.

Mr. Robinette: --Then I think that puts it precisely in the frame of a claim of ineffective assistance of appellate counsel.

I think basically what the claim is is appellate counsel did a sloppy job of reviewing the record.

Unidentified Justice: Well, I know, but he had no... after that he had no representation in the appellate Court on deciding the issues, did he?

Mr. Robinette: That's true.

Unidentified Justice: And you're... what the argument really boils down to is that, is that... well, you can't really tell whether a lawyer done him any good, because you never can tell whether a lawyer would do anything... any good... in which event, why ever appoint a lawyer?

Mr. Robinette: I think that you can certainly tell better in the framework of the appellate process.

You can measure prejudice much easier in the appellate--

Unidentified Justice: Well, why have any obligation to appoint counsel on appeal at all?

Mr. Robinette: --Well, Douglas requires it.

Unidentified Justice: Well, maybe we ought to overrule Douglas.

Mr. Robinette: Well, I wasn't prepared to address that, but that could be initiated and addressed.

[Laughter]

Unidentified Justice: Well, you have been, it seems to me.

Mr. Robinette: Okay.

I think the guarantee of equal protection means substantial equality, but doesn't mean precise and absolute equality, so I think counsel has to be appointed in the first instance.

Unidentified Justice: But on the question of [inaudible], have in your own practice, have you ever won a case you didn't expect to win?

Mr. Robinette: That can happen sometimes.

Unidentified Justice: Sure, it's possible, isn't it?

Mr. Robinette: I think, though, there's a key distinction, too, between the trial process and the appellate process, because as Justice Stevens noted in the McCoy case, there's never a duty to withdraw at trial.

Unidentified Justice: Well, on a case on appeal that you didn't expect to win?

Mr. Robinette: Probably so.

I think that's another part of the problem.

Unidentified Justice: Mr. Robinette, why can't you, why can't you answer the question by saying what equal protection requires is that you have a lawyer who exerts his best efforts to find something in your case that will justify reversal on appeal?

And you can't say... there's no way of saying that the defendant here didn't get that.

Mr. Robinette: Well, I agree with that.

Unidentified Justice: We know that the lawyer didn't find issues that could have been found, but that may have been that lawyer's best effort.

And if all that we have held that equal protection requires is that, that you have a lawyer pay attention to the case, and do his best to raise issues on appeal, if that's all that equal protection requires, that was given here.

And there was no error.

Mr. Robinette: I agree, Justice Scalia.

I couldn't have put it better myself.

I think equal protection--

Unidentified Justice: What you're saying is now there was no error.

Mr. Robinette: --What I'm saying is, I think we don't have an equal protection--

Unidentified Justice: That's what Justice Scalia says.

You're saying to affirm, you know.

Mr. Robinette: --Yes.

I think if we have error... I mean, certainly the Anders issue is a very close issue in the case, and it's close because of the factual distinguishing features between this case and the Anders case, the co-defendants and the fact that they did review the arguable issues in the case.

And they had already decided the arguable issues.

But even if there's an Anders violation, I don't believe that precludes this Court from applying a harmless error analysis to an Anders violation, especially in light of some of the other cases--

Unidentified Justice: On your harmless error argument, are you arguing that we should search the record for harmless error?

Mr. Robinette: --I think in the ordinary sense, the Court would review the record to see if any error--

Unidentified Justice: That's your argument, that we should make the harmless error, because the Court of Appeals didn't do that?

Mr. Robinette: --I... I... no, I'm not saying that at all, because I think the Court of Appeals in effect made a finding that there was--

Unidentified Justice: They said there was no prejudice, but they didn't say that they could find beyond a reasonable doubt that there was... that the error was harmless.

Mr. Robinette: --I think initially this Court has to decide whether or not harmless error analysis is appropriate.

Unidentified Justice: If they... if we should decide that, then what do we do?

Mr. Robinette: I would like to see the Court decide the case.

I don't believe remand is necessary, although the Court may feel that the Court of Appeals did not precisely apply a harmless error test, and you may remand for that purpose.

That's a closed question there.

I think in effect they made a finding there was no prejudice, and the error that he may have sustained in the case was harmless.

And I would like to address briefly some of the issues that were raised at the eleventh hour--

Unidentified Justice: Well, just before you do that, what's, what's at stake here for your State?

Suppose we do what you say.

Isn't that really administratively more burdensome from the Courts?

Why not just have them file an Anders brief?

Mr. Robinette: --Well, there's a lot of arguments made that Anders briefs are much more burdensome than requiring a Court appointed counsel just to file a frivolous brief on the merits--

Unidentified Justice: Burdensome to whom?

Mr. Robinette: --Burdensome to the Courts, burdensome to counsel... there are four States now that are refusing to follow the Anders briefing procedure.

And they follow the so-called Idaho rule, which is discussed in some of the articles mentioned in the amicus brief of the Ohio--

Unidentified Justice: How does that work?

Mr. Robinette: --Defense Lawyers Association.

The Idaho rule merely says, straightforward, that counsel, appointed counsel may not withdraw from an appeal on the ground that it's meritless or frivolous.

So, in effect, what those States hold is he must file a frivolous brief.

Unidentified Justice: Well, that's Anders plus.

But you're talking about Anders minus, and there's a difference.

Mr. Robinette: That's true.

I... I think McCoy is--

Unidentified Justice: So I think the Idaho procedure is a more, more stringent than Anders, and you're talking about something that is less.

Mr. Robinette: --Well, the Idaho rule is also unethical, because it requires--

Unidentified Justice: Well, then, why are we talking about the Idaho rule?

It doesn't apply.

Mr. Robinette: --That's true, it doesn't apply here.

But I think there's some policy considerations to be considered.

I think the Anders case... that's part of the problem with the Anders case.

Unidentified Justice: Well, you're telling me some States have a more strict rule than Anders, and therefore it follows that others should be able to have a less strict rule.

That doesn't seem to me to follow.

Mr. Robinette: Well, I think it goes to what Justice Stewart said in his dissenting opinion in Anders.

Part of the problem is, there may not be one right answer to cover every situation in the 50 States dealing with court appointed counsel on appeal.

And I think the McCoy case has recognized that, because in McCoy, this Court upheld a Court rule in Wisconsin that went beyond Anders.

I think that's a recognition that maybe there's not just one right answer in the situation... that there may be other ways of handling the situation.

Unidentified Justice: Do you think Anders was an equal protection case, or does it rest on the right to counsel, if there was one?

Mr. Robinette: I think it was primarily... I think there's some overlap there, as the Chief Justice has noted in some opinions, between due process and equal protection.

I think it was primarily an equal protection case, because they felt like it was not substantial equality in the case, and you had to have substantial equality, although you don't have to have absolute equality.

But in this case, I think you've got--

Unidentified Justice: Well, the real issue then could never be harmless error, in this case, could it?

It should be, just as Justice Scalia suggested, it just don't... no error at all, no denial of equal protection.

Mr. Robinette: --I don't believe there was error.

I agree with Justice Scalia.

I don't think there was error.

Unidentified Justice: Well, then it's an equal protection case.

Mr. Robinette: This case, I think, is primarily ineffective assistance of counsel, because there was no equal protection violation.

Unidentified Justice: Well, that's not an equal protection case.

Mr. Robinette: Pardon?

Unidentified Justice: That's not an equal protection inquiry, is it?

Mr. Robinette: No, it's not.

And effective assistance is due process.

But my argument here is, there was no equal protection violation.

He received substantial equality because he had counsel appointed in the first instance, and counsel had the opportunity to review the record.

That basically the claim is, he just didn't do an adequate job reviewing the record, did not file a brief, and I believe the claim is they think he should have filed a brief.

And I believe the amicus brief filed by the ACLU basically advocates a position that they would rather have a brief filed in every case.

But I don't think that's required by the Constitution.

And I think the procedure that was employed in this case satisfied both due process and equal protection.

And if there's a claim--

Unidentified Justice: Isn't it a very efficient way, however, of making sure that counsel is doing his best, even if his best is no good?

At least you make him file a brief.

Mr. Robinette: --You're referring to the Anders procedure?

Unidentified Justice: Right.

Mr. Robinette: It's a way of assuring that.

I'm not so sure how efficient it is, because a lot of counsels don't understand exactly what they have to do to comply with the true Anders brief.

Unidentified Justice: Well, what alternative do you have?

I mean, suppose, suppose we really want to make sure that this requirement we've imposed in Anders is, is not just symbolism... that we're really not just naming counsel but getting counsel to work on the case?

What, what better way would there be except to make them require either an Anders brief or an un-Anders brief, a McCoy brief?

Mr. Robinette: Um-hum.

Unidentified Justice: Wouldn't that be a--

Mr. Robinette: I agree.

I think part of the problem is, however, a lot of attorneys don't like the Anders briefing procedure, because they feel like it forces them to brief the case against their client.

It puts a counsel into a very difficult situation, because on the one hand, he's moving the Court to withdraw on the grounds that the appeal has no merit, and on the other hand, he's pointing, raising issues in the brief, so-called arguable issues, but he's saying these issues are frivolous.

So, therefore, he withdraws from the case on that basis, and that puts counsel in a very difficult situation.

A lot of attorneys, quite frankly, would just rather file a frivolous brief on the merits and be done with it.

That's the easiest thing to do.

Maybe it's what I would do, if I was in that situation.

I don't know, but it's--

Unidentified Justice: --All right.

We'll accept that, too.

I mean, you either file an Anders brief, a McCoy brief, or a frivolous brief on the merits.

Why shouldn't we have some kind of rule like that, to make sure that counsel are really putting in their effort in the case?

Mr. Robinette: --Well, I think again, the problem with requiring that brief on the merits to be filed is it would be unethical in some cases.

I think the independent review requirement where the Court of Appeals independently reviews the record is a way to provide a safeguard--

Unidentified Justice: It's no safeguard at all.

You wouldn't need counsel.

I mean, you know, the whole reason you need counsel is because you don't trust an independent review by the Court of Appeals.

Isn't that why you have counsel?

Mr. Robinette: --I think you have counsel so he can act on client's behalf and raise the issues that he thinks ought to be raised in the case.

Unidentified Justice: And if you had full confidence that the Court of Appeals would find it on its own, you wouldn't require counsel.

Mr. Robinette: I think you at least have to require counsel to examine the record, and obviously this court in Anders didn't feel like that was enough.

They felt like the Anders brief was required to ensure that factor, but in any event, even with the Anders requirement in place... and it doesn't appear this Court is ready to do away with the Anders briefing requirement... based on my reading of the McCoy decision, I think there still was no Anders violation in this case by the Court of Appeals.

It still boils down, in my view, to a situation where it's claimed that council just did a sloppy job and did not brief the case, and should have briefed the case.

But I think that ought to be judged on a deficient performance standard, not on presumption of prejudice standard.

It makes no sense to presume prejudice in a case like this when the Court doesn't presume prejudice in many cases of right to counsel violations at trial.

Recently in the Satterwhite case, Satterwhite v. Texas, the Court held that harmless error analysis applied to a counsel, right to counsel deprivation in a capital sentencing proceeding.

And certainly the difficulty of measuring prejudice in a case like that is much greater than the difficulty of measuring prejudice on an appeal situation like Anders, where regardless of who the attorney is, he's bound by the same record.

It doesn't matter who you appoint... you could appoint 15 different attorneys.

They've all got to examine the same record.

They can't go outside the record.

They can't introduce new evidence.

They've got to pull their issues out of that record.

And I think that's... makes prejudice much easier to measure, and I think certainly if the Court does not want to adopt a Strickland type test in a situation like this, certainly harmless error analysis is appropriate in any event.

There's no good reason why harmless error analysis would not apply in a case like this.

Briefly, as far as some of the issues that were raised in the reply brief... and I'll refer to pages 9 through 11 of Petitioner's reply brief... he raised some issues that he says prejudiced Mr. Penson, because they were not raised, and they could have been raised.

I would note, also, that Mr. Penson had the same attorney that he has now... the same office represented him on his discretionary appeal to the Ohio Supreme Court, and basically they were complaining about the job that the Court appointed appellate counsel did in that Court, that they made no effort to raise any of these issues before the Ohio Supreme Court, nor did they make any effort to raise any of these issues at any time until the reply brief was filed in this case.

The first thing they refer to is that the trial court erred in convicting and sentencing Penson for both having the weapon under a disability in Count 29 of the indictment and the firearms specification that accompanied that indictment.

And they claim that that's a violation of Ohio's multiple-count statute, and also a violation of double jeopardy provisions.

Unidentified Justice: What page is that?

Mr. Robinette: That's on page 9.

The issues they raise go from page 9 through page 11.

Unidentified Justice: It's difficult to see how we could evaluate some question of Ohio law.

Mr. Robinette: That's true.

That may be one reason why the Court would want a remand on a consideration of those issues.

However, I think that those issues are clearly without merit, and that's why they were not raised until such a late time in this proceeding.

There's Ohio case law that holds that those statutes are not one and the same statute, and they do not violate the multiple count statute.

Unidentified Justice: Well, were these issues decided in a State Court?

Mr. Robinette: No, because they were never raised in the State Court.

Unidentified Justice: Well, do we have any jurisdiction to consider those questions?

This is from a State Court, isn't it?

Mr. Robinette: Yes.

And I think Petitioner's argument is that he was deprived of the opportunity to have those issues decided.

But my position is, those issues could have been raised under the guise of an ineffective assistance of counsel claim to the Ohio Supreme Court, that's often done.

That's a way that's often used to get around the ordinary rule that the Ohio Supreme Court will not rule on an issue that wasn't raised in the lower court.

It's done all the time under the guise of ineffective assistance.

But yet they were not raised at that point.

The Court may not want to--

Unidentified Justice: Well, how could they have been raised before the Ohio appellate Court, though?

Mr. Robinette: --They were not raised there, it's true.

Unidentified Justice: And the reason they weren't, I suppose, is he didn't have a lawyer.

Mr. Robinette: Well, I suppose you could make the argument.

You could come up with any number of issues that could have been raised in hindsight.

Unidentified Justice: Well, that's not your answer.

Your answer is, it's not because he didn't have a lawyer, but because he did have a lawyer who knew Ohio law, and knew that since they hadn't been raised in the trial court, they couldn't be raised on appeal.

Mr. Robinette: Some of these issues could have been raised on appeal, I think, because--

Unidentified Justice: Oh, some could?

Mr. Robinette: --It's a judgment call whether or not the lawyer thinks they have any merit.

Some of these issues had already been decided by the same appellate Court adversely to the position that Petitioner now takes.

I mean, is the lawyer obligated to raise an issue that's already been decided by the appellate Court in his district?

I don't think so.

Unidentified Justice: I don't see how we can decide that, when there was no lawyer there.

Mr. Robinette: Again, we get back to the situation where a lawyer was appointed in the first instance, and he made a judgment call not to raise certain issues.

Unidentified Justice: Douglas case, that's where we get.

He's... you haven't touched it.

Mr. Robinette: He may not have done a lot, that's for sure.

But he was appointed.

I don't think you can blame the appellate Court for the lawyer's, perhaps poor, performance in the case.

I think it's a situation where you have to judge the lawyer's performance, because I don't think the appellate Court has violated Mr. Penson's rights.

Unidentified Justice: Well, what should an appellate Court do, if midway through an appeal, it's perfectly obvious that the counsel they appointed is a, is a, if he isn't a nitwit, he's pretty close to it, and there's just not going to be any effective assistance?

Mr. Robinette: If the Court comes to that conclusion midway through the appeal, they always have the option to dismiss this attorney from the case and appoint another attorney.

There's no problem with that.

Unidentified Justice: Well, didn't they here come to the conclusion that the lawyer really didn't, didn't do what he was supposed to?

Mr. Robinette: I don't think they were particularly pleased with the job that he did.

But I think the viewpoint of the Court was there was no prejudice from what he did, based upon the issues raised in the other cases and its own review of the record, and to appoint another attorney at that point in time to review the same record would have been a fruitless exercise.

I think that's basically the Court's position.

That's basically a no prejudice, harmless error type decision on their part.

And I think they're correct in that determination.

I think what, basically, Petitioner would have this Court do is give him a windfall, give him a second bite at the apple all the way up the appellate ladder, and for what?

When he suffered no prejudice in the first place, I really don't see what it would accomplish, other than to go put the State through another enormous expense.

Unidentified Justice: Is counsel paid in Ohio for representing people on appeal?

Mr. Robinette: Yes, yes.

I'm not sure what the pay schedule is, but they are appointed by the Court and they are paid by the State.

Now, in this case, maybe he should not have been paid, but as it's been pointed out, it's hard to judge from what appears in the record exactly how much time he put in.

They are required to file a statement of their hours in the case.

And I haven't seen that... I don't know how many hours he claimed to have put in, but the transcript was approximately 900 pages.

If he just read the transcript, he would have had to put in a number of hours just doing that.

But again, you know, a lot of this is a judgment call, and you're basically judging the attorney's performance.

And by judging the attorney's performance, I think it ought to be judged under a prejudice standard as whether or not the client actually suffered any prejudice.

If there are no further questions, that would conclude my argument.

Unidentified Justice: Thank you, Mr. Robinette.

Mr. Ayres, you have seven minutes remaining.

REBUTTAL ARGUMENT OF GREGORY L. AYRES

Mr. Ayers: I'm shocked that counsel for the State of Ohio describes this Court's decision in Douglas v. California as a windfall.

I think the right to counsel on appeal, like the right to counsel at trial, is much more fundamental than that.

This Court indicated in Evitts v. Lucey that counsel's presence is essential to adequate and effective review.

It certainly cannot be described as a windfall.

Unidentified Justice: So do you think the... do you think that our decisions, the Court's decisions have now clearly come out to require counsel on appeal, not as a matter of equal protection, but as a matter of some other provision in the Constitution?

Mr. Ayers: I think as a matter of due process, equal protection, of course guarantee the right to counsel, but the right to effective assistance is required with the Evitts decisions.

The counsel just cannot just be present.

He must engage in an effective performance.

Unidentified Justice: This is not a matter of due process?

Mr. Ayers: Well, the Court did rely upon the due process clause in the Evitts decision.

That was--

Unidentified Justice: Not the equal protection clause?

Mr. Ayers: --No.

That was the only issue presented by the record on the appeal in Evitts, so that was the only Constitutional provision relied upon by the Court, the due process clause.

But Evitts made it very clear that an attorney must file a brief where there are non-frivolous issues, where there are arguable issues.

Evitts specifically reaffirmed Anders, and said that when counsel fails to file a brief, that's un-Constitutional.

That denies due process.

Well, that's exactly what occurred here.

And for counsel for the State of Ohio to say that it's a windfall just goes against a whole line of decisions, beginning with Douglas and ending with McCoy, four or five decisions in between.

Unidentified Justice: Mr. Ayers, can I ask you a question about your opponent's suggestion that one possible disposition of this case would be to remand it to the Ohio Court of Appeals to decide whether there would be error, assuming it was error... was harmless or not?

If we should do that, would your client be entitled to have a lawyer represent him in the proceedings before the Ohio Court of Appeals?

Mr. Ayers: Well, of course.

He's... our position is, he should have a new appeal which he didn't get in the first place.

If the Court were going to remand the proceeding, certainly he should have... if it's back to the first appeal level, he should certainly have a lawyer.

That's what Douglas requires.

Unidentified Justice: But their disposition would give him a lawyer, as I see it now.

And I'm not sure one would be any more expensive than the other.

I don't know whether it makes any difference whether we would do that, and let your client then have a lawyer to argue, file a brief, or to reverse, since they appoint a lawyer on the appeal.

Mr. Ayers: Well, I think that points up the whole problem with this process, your Honor.

If the Court of Appeals had applied Anders, the crisp, bright line rule, we wouldn't be here.

This simple case has become a complex Constitutional case.

Mr. Anders, if he had... I'm sorry, if Mr. Penson had gotten his appeal in the Ohio Court of Appeals, we wouldn't be here.

Might be here on some other issue, but we wouldn't be here on the denial of right to counsel.

And that's what happens when counsel is denied and the Court has to engage in a prejudice evaluation and so forth.

Unidentified Justice: Well, you certainly wouldn't be here if you would have won, would you, counsel?

Mr. Ayers: Well, of course.

Unidentified Justice: And how do you know you wouldn't be here if... if--

Mr. Ayers: Well, not on this issue--

Unidentified Justice: --If counsel has been appointed and you are?

Mr. Ayers: --Not on this issue, your Honor.

And I think that that points up the problem with the denial of counsel.

You really have to engage in a speculative exercise to figure out what counsel would have done, or should have done, and would it have... what he would have argued to the appellate Court, what the appellate Court would have decided... and this Court said in Strickland, when counsel is denied, it really isn't worth the cost of trying to figure out the effect of the denial of counsel.

Unidentified Justice: May I ask another--

Mr. Ayers: I think that's the problem with applying a prejudice test in this situation.

Unidentified Justice: --May I ask another question about the practice in Ohio in appointed cases?

Does the lawyer get paid so much per case or so much per hour in a case of this kind, the appointed counsel?

Mr. Ayers: There are maximums established by the County, and the lawyer gets paid so much an hour.

Unidentified Justice: So much an hour.

Mr. Ayers: But... yes.

Unidentified Justice: So that he wouldn't get the same amount for filing this, this Anders letter as he would if he'd filed a brief?

Mr. Ayers: I hope not.

Unidentified Justice: Yeah.

Well, of course, if he spent the same amount of time on it, though, I suppose he would.

If he put in an hourly statement, showed--

Mr. Ayers: If I were on the appellate Court, he wouldn't get anything.

Yeah, I think counsel did--

Unidentified Justice: --Yeah.

Mr. Ayers: --did nothing other than review the record in this case, and didn't do his job as he is required Constitutionally to do.

The Court did not do its job in requiring him to file an advocate's briefs where there were arguable issues.

This Court made it very clear in McCoy that where there are arguable issues, the attorney cannot serve the client's interest unless he files an advocate's brief.

That did not occur here, and for the State to argue that Mr. Penson's right to counsel was satisfied by a co-defendant's lawyer is just totally inadequate.

When you're reviewing a record as an advocate, as an appellate lawyer, representing a client, you first of all consult with your client, and then you review the record with a view to seeing if there were errors in the record that pertained to him.

You're not thinking about the other co-defendants.

You're looking for errors that specifically pertain to him, and then you're filing an advocate's brief advocating on his behalf those particular errors.

Mr. Penson did not get that.

This Court made it very clear in Ross that every defendant must be afforded an adequate opportunity to participate in his appeal, and to have meaningful access to the appellate process.

That was completely denied here.

One further point that I would like to address is that the State argues that we should apply a prejudice test here because we have a performance.

Evitts again points out that counsel, in order to be effective, must engage in a performance.

When counsel does not file a brief on appeal, he's engaged in nothing.

It's like a lawyer at trial who goes out and talks to all the witnesses but doesn't come into the courtroom and represent his client.

A brief on an appeal is the primary tool by which the appellate advocate acts as a sword to convince the Court that error has occurred.

The attorney was effectively absent in this case.

He did not participate in the appeal.

Unidentified Justice: What if paid counsel spends a lot of time examining the case, finds that there's nothing to it on appeal?

He tells his client,

"I'm sorry, you have no basis for an appeal. "

Has he done his job?

Could he send him a bill for that time?

Mr. Ayers: Well, that's between he and his client, I suppose.

But the point is, with respect to your question, Justice Scalia, is that client can go to another lawyer and ask him, and that lawyer may find issues.

The monied defendant can get a lawyer to present issues, especially if they're arguable issues as in this case.

Mr. Penson could not do that.

He was too poor, and he was denied the equal protection which Douglas v. California gives him.

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

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Mccoy v. Court Of Appeals Of Wisconsin - Oral Argument

Wed, 13 Apr 2011 20:13:04 +0000

Case:

Mccoy v. Court Of Appeals Of Wisconsin

Media File:

87-5002_19880120-argument.mp3

Related Transcript:

87-5002_19880120-argument.xml

Transcript:

ORAL ARGUMENT OF LOUIS BENNETT BUTLER, JR., ESQ. ON BEHALF OF APPELLANT

Chief Justice William H. Rehnquist: Mr. Butler, you may proceed whenever you're ready.

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

This matter is before the Court on appeal of the decision by the Wisconsin Supreme Court upholding the constitutionality of a procedural rule requiring Appellate counsel to inform the Court why issues in an appeal lack merit when counsel reaches that conclusion.

We contend in this case that the decision of the Wisconsin Supreme Court is in error and that the effect of the Appellee's argument and the decision of the Wisconsin Supreme Court is to ask this Court to redefine either the role of counsel in an appeal or the nature of an appeal or both.

Now,--

Unidentified Justice: You say that's the result of the Wisconsin Supreme Court's decision?

Mr. Butler: --That is correct.

Unidentified Justice: And what's the matter with that result?

Mr. Butler: In this particular case, the problem with that result is that, as Appellee concedes in their brief, it removes an appeal from the adversarial testing process once counsel reaches the conclusion that there is no merit to the appeal.

In so doing, since Wisconsin has provided by its constitution that a client is entitled to an appeal as a matter of right, he is getting something less than that in the Wisconsin judicial system.

Unidentified Justice: Well, of course, indigent defendants who will get appeals as a matter of right as in Wisconsin are entitled to the benefit of counsel, but we have cases that say they're not going to get everything that the well-heeled criminal defendant is going to get.

It just isn't in the nature of things.

Probably a well-heeled defendant can walk into some law office and plunk down enough money to get the lawyer to make any claim the defendant tells him to make.

It's unfortunate, but it's true.

But certainly you don't contend that the indigent defendant is entitled to that sort of service, do you?

Mr. Butler: We are not contending that the indigent defendant is entitled to everything.

For example, I think you are correct that a client who has a great deal of money can shop around.

I think that was recognized in the United States v. Edwards, 7th Circuit case.

You can shop around and look for someone to make that argument.

At the same time, this Court has held consistently that, in fact, in discussing the due process rule, they've also discussed it in the context of equal protection, and they say essentially the purpose of Anders is to try to provide a criminal defendant with the same type of representation he would receive if he were having a retained counsel.

So, the Court has made that recognition in the past.

Basically, in this situation, Appellee concedes that the purpose of this rule is to take the appeal out of the adversarial testing process.

Now, since the Court has previously described in Polk County v. Dodson and Evitts v. Lucey that an appeal is just that, it's the adversarial testing process, and that a client is deprived of due process when he has less than that.

In effect, what they are asking the Court to do is, in a context of a no merit appeal, take the appeal out of the adversarial process, redefine the nature of appeal, and give the client something less than that which he is entitled to as a matter of right in Wisconsin.

Now, in addition--

Unidentified Justice: May I interrupt, Mr. Butler, right there?

Assuming you just applied Anders as written and you don't have this additional requirement of a lawyer explaining why he thinks it's frivolous, do you think the normal Anders case in which the lawyer files an Anders brief, in which he makes the... identifies the arguable arguments on behalf of his client and then says, but I think they're frivolous, do you think that takes it out of the adversarial process?

Mr. Butler: --The one thing that Anders did... I do not.

I think the one thing that Anders did--

Unidentified Justice: You think that is the same advocacy that the rich person that the Chief Justice mentioned would get?

Mr. Butler: --Right.

I think the one thing that Anders did is to try--

Unidentified Justice: It is the same advocacy that the rich client would get?

Do you think his client is going to go in and make some arguable things, saying yes, but I think it's frivolous and I'd like to withdraw?

Mr. Butler: --No.

I'm sorry.

I misunderstood your question.

No.

I can't imagine a client paying a lawyer to go in and argue the case as totally frivolous.

Unidentified Justice: What we've got is a case where the paying client, if he's got a conscience lawyer, would say to him, you're going to waste your money.

I'm telling you that in advance.

It's not worth $5,000 to file this.

Of course, if you want to throw your money away, I'll file your papers for you.

Mr. Butler: That's correct.

Unidentified Justice: What you're saying is that the poor defendant is entitled to have the state waste the same amount of money.

Mr. Butler: That's correct.

Unidentified Justice: That's correct.

Mr. Butler: In effect, the poor defendant... for example, in Anders, Anders tried to resolve a difficult ethical dilemma that counsel faces.

When, on the one hand, you are obligated to litigate the appeal on the client's behalf to the best of one's ability, but, on the other hand, you have reached the decision that the case is wholly frivolous and without arguable merit.

Now, the client is entitled to have the appeal as a matter of right and he's entitled to a vigorous advocate to put forth issues on his behalf.

At the same time, the lawyer is confronted with--

Unidentified Justice: But he's not under Anders.

He's not under Anders entitled to that.

Mr. Butler: --Under Anders, he is entitled to that.

Unidentified Justice: No, he's not entitled to the vigorous advocacy.

He's entitled to have the points identified, the colorable basis identified and then the lawyer is entitled to withdraw.

Mr. Butler: That's should the Court reach the conclusion that the case is wholly frivolous.

However, Anders does--

Unidentified Justice: But he doesn't go in and make a vigorous argument, don't let me withdraw.

He files his brief with the arguable points in it and says I think these are frivolous.

And then he's out and if the Court thinks there's anything in it, they appoint a new lawyer under Anders.

Mr. Butler: --Right.

The one problem I think with that analysis, I think Anders does require you to be an advocate.

For example, Anders cites as its support the case of Ellis v. United States.

Ellis v. United States had a discussion requirement very similar to the one that the Wisconsin Supreme Court adopted in this case, and in that particular case, two different attorneys evaluated the appeal, cited possible issues to support the appeal, and then, after raising those issues, then proceeded to advise the Court why those issues lacked merit.

The United States Supreme Court reversed the decision of the United States Court of Appeals and held that that was not acting as an advocate on behalf of the client.

Unidentified Justice: But if he points out those arguable basis for the appeal, and then in the last line says I resign, please let me out, and the Court lets him out, there's nothing wrong with that, is there?

Mr. Butler: No.

Unidentified Justice: That's what Anders says.

That's what Anders says.

Mr. Butler: That is what Anders says.

Unidentified Justice: And he doesn't need to give any reason for asking to resign or to get out?

Mr. Butler: I don't think he should.

I think at that point--

Unidentified Justice: So, it's just to be inferred that my mother-in-law is sick or what?

Is it I just haven't got time or--

Mr. Butler: --No, no.

I think--

Unidentified Justice: --It's really inferred that he thinks it's frivolous.

Mr. Butler: --Right.

I think it ties into Justice Stevens' question.

I think counsel is under Anders supposed to make a vigorous argument.

I think as a preface to the argument, counsel must advise the Court that, in his opinion, he believes the argument he is about to make is frivolous, but he should still argue the case on behalf of the client.

Unidentified Justice: But that's the kiss of death in any real live court, is to say I'm going to make the following points and I intend to make them very vigorously, but I want to tell you beforehand that I think it's all a pile of junk.

That's really what he's saying.

By asking to resign.

Mr. Butler: In Anders, that essentially is correct.

However, the value of that rule and the reason Anders is a difficult case for an appellate lawyer to defend, because you are doing exactly that.

You are telling the Court that, in your opinion, the case is frivolous.

However, by--

Unidentified Justice: And we've said that that doesn't violate the 6th Amendment.

Mr. Butler: --That's correct.

Unidentified Justice: So, why does it violate the 6th Amendment for the lawyer to tell the Court why he thinks it's frivolous?

Mr. Butler: At that point, by telling the Court why the case is frivolous, the lawyer is doing more than just acknowledging that, in his opinion, the case is weak, but the Court must make the determination.

At that point, counsel is now providing the brief, in effect, for the other side.

You are now briefing both sides of the case.

Here's our case, here's the state's case.

In my opinion, I'd side with the state.

Unidentified Justice: Well, a lawyer has an ethical obligation under some circumstances to bring to the Court's attention authorities on the other side, doesn't he?

Mr. Butler: That's correct.

Unidentified Justice: Or she?

Mr. Butler: And that's why I believe that Anders resolved that ethical dilemma.

Anders says in that situation, we give you permission to tell us that the case is frivolous, but we still want you to argue it.

So, they have resolved the ethical dilemma.

They allow the attorney to be ethical because you are telling the Court that in your opinion the case is frivolous, and at the same time, they allow you to be an advocate.

Unidentified Justice: And so he can't be sanctioned then, I suppose.

Mr. Butler: That's correct.

Unidentified Justice: Because most lawyers have, at least under the current rules, have an obligation not to file frivolous papers.

Mr. Butler: That's correct.

And that's, in fact, the case in--

Unidentified Justice: Because they can be... certainly, in the trial court, Rule 11 would catch them, isn't that right?

Mr. Butler: --That's correct.

Unidentified Justice: So, I don't know that you can say that even a well-paid... even a paying client isn't entitled to a lawyer who will file frivolous cases.

The lawyer isn't supposed to do that.

Mr. Butler: No.

The lawyer is not supposed to do that, and we are not arguing that there are attorneys out there who would be unethical.

Unidentified Justice: It has been done.

What about a case where the lawyers argue the case and haven't read the briefs.

The judge says, well, look, is your only part in this that the man was convicted on three counts and was sentenced on count two before he was sentenced on count one.

And he says, yes, that's the only point.

He said, why are you bringing it here.

He said, well, I was appointed and the client insisted on it.

Well, all he wasted was five minutes of the Court's time.

That's all.

Mr. Butler: That's correct.

In fact, the irony of the Wisconsin Supreme Court's decision, if it had really... saves the Court no time whatsoever.

The only agency that is saved any time by the Anders procedure is the agency representing the State of Wisconsin.

The Court in either case has to evaluate the arguments that are presented to it by Appellate counsel, whether it's a meritorious appeal or whether it's a no merit appeal.

The public defender or the appointed Appellate counsel who is representing the defendant has to brief the issues in either situation, advise the client of the possible ramifications to the appeal, his analysis of the merits of the appeal, and whether or not there's a possibility of success, and then present those arguments to the Court.

The only one who doesn't have to do anything in this situation is the representative of the State of Wisconsin, because, now, appointed Appellate's counsel is doing their job for them.

We are now briefing the case for the state.

Unidentified Justice: Yes, but that's not what brings you here.

I mean, you're not complaining about saving the state money.

You're complaining about prejudice to your client.

Mr. Butler: That's correct.

It was the Wisconsin Supreme Court that complained about the money.

Unidentified Justice: Right.

But it seems to me if you assume that the state would come in with an opposing brief anyway, the only effect... the only possible effect of making counsel state why he thinks it's frivolous is to enable the Court more readily to focus on the fact that his reasons are wrong.

Don't you think if you're going to have a brief for the other side from the state anyway, don't you think it would more likely help than harm the individual defendant for counsel who has very bad reasons for thinking that the appeal is frivolous to set forth those very bad reasons in a brief and the Court can look at it right away?

Otherwise, all the Court knows is, well, he's made these arguments, but in his heart of hearts, he thinks it's all nonsense.

I don't see how your client is hurt by that.

Mr. Butler: In answer to your question, Justice Scalia, first of all, in Wisconsin, the Attorney General's office is not supposed to file a response brief in an Anders situation.

In fact, they have taken the position earlier in this case that they should not even be served with a copy of the brief in that situation, and they have taken a consistent position that they do not have to respond and so far that is the rule of law in Wisconsin.

So, you are not anticipating getting a response from the State of Wisconsin in an Anders situation.

The only one who provides the arguments on behalf of the State of Wisconsin in an Anders situation is the attorney for the client.

Unidentified Justice: Yes, but I don't see how that hurts your client.

That's the question.

(A) It seems to me that it might actually benefit the client in some cases because I've had cases where I thought the answer was perfectly clear and then I started to write out the reasons why it's clear and I find, well, it isn't really all that clear, and if you come to a conclusion that something is frivolous, say, oh, there's nothing to this case, and then you have to explain why, you're going to be darn sure it is frivolous.

It's easy sometimes in a big record to say that I don't think there's anything here.

So, doesn't the requirement of articulating the basis for the conclusion it's frivolous actually provide some protection to the client?

Mr. Butler: Actually, it does not because by providing the Court with those reasons, assuming that you've made an accurate determination, what you have done in that situation is told the Court why the case lacks merit.

It's our position that if it is not readily apparent from the face of the Anders brief why that case is frivolous, then perhaps counsel was wrong in making that determination.

Unidentified Justice: Yes, but if he is wrong, he won't be able to spell out satisfactory reasons and he'll change his mind.

But if he can just file it without stating the reasons, he's going to go ahead and make some mistakes.

That's my point.

Mr. Butler: But the answer to that, Justice Stevens, is that in that situation, the Court can order the opposing side to brief the case for the other side.

You don't need for counsel to step in.

You don't need to increase the appellate process.

You still have an advocate's brief on behalf of the client.

The issues are still highlighted.

Unidentified Justice: It seems to me in that case, it would be better for the lawyer to find out himself that he was initially wrong in his judgment of frivolity or frivolousness, whatever the right word is, and to correct it himself and say, no, there is some merit to it, rather than filing an Anders brief without an explanation and then having the state say, well, he acknowledges frivolous, so that's it.

Mr. Butler: Justice Stevens, I think a lawyer does that when he makes the analysis of the case.

Unidentified Justice: Well, you hope he does.

Mr. Butler: The problem is not with making the analysis for the case.

The problem is within providing that analysis--

Unidentified Justice: Well, if he does it, how often does he do it wrong?

How many Anders briefs have you filed that you think you shouldn't have filed?

Mr. Butler: --Your Honor, I've only filed two Anders briefs in my life.

I question whether I should have filed either one of them.

Unidentified Justice: In those cases, do you think it would have really made any difference if you'd included the statement of reasons?

Mr. Butler: In one of the cases, in fact, I did include a statement of the reasons at my client's direction, and I do think it made a difference because his case came subsequent to this one.

His conviction has already been affirmed.

That is one of the unique things about the Wisconsin rule.

You don't dismiss an appeal in Wisconsin if the Court accepts an Anders brief.

You affirm the conviction.

So, he has an appeal, but it's not the same type of appeal that's contemplated by the Constitution.

Unidentified Justice: Well, except the Constitution doesn't really contemplate an awful lot of frivolous appeals.

I mean,... well, anyway.

Mr. Butler: No.

I agree the Constitution does not contemplate a lot of frivolous appeals.

I think counsel's responsibility is to try to argue on behalf of his client as best as possible.

In the unlikely event that you do have or the unique event that you do have a frivolous appeal, you're still obligated until you are allowed to withdraw from the case to protect that appeal.

You still represent the client, and to the extent if there is a conflict between a client's ethical responsibility and a client's legal responsibility to the client under the Constitution, it's our contention that the Constitution should control.

We are not supposed to be an administrative aid to the Court.

Polk County v. Dodson, the Court made it clear.

The client is supposed to have the undivided loyalty of the attorney, and what the Wisconsin Supreme Court has admittedly done in admitting that it goes beyond Anders is it says, no, you have two duties in this case.

Only one is to the client, the other is to the Court, and we want you to wear both hats at the same time, and that provides the client, and this goes to the second part of the argument, with the redefining of the role of counsel, that provides the client with less than an advocate.

You are not being an advocate.

You are being a counselor as Appellee as pointed out--

Unidentified Justice: Yes, but you're arguing... you say he's entitled to the undivided loyalty of the lawyer.

Well, the lawyer gives him his undivided loyalty and when he says to him, I recognize you want to appeal but there is absolutely no merit to this appeal, it's a waste of time and money and everything else, and, so, I don't think you should appeal.

There's nothing inconsistent with that.

Mr. Butler: --There's nothing inconsistent with that.

Unidentified Justice: And then he goes on and he says, moreover, since it's frivolous, I have an ethical duty not to prosecute it and to advise the Court of it.

Why is that inconsistent with his duty to his client?

Mr. Butler: Because the client at that point says, I have a right to an appeal and I want the appeal, and at that point, the lawyer's duty is to protect that appeal.

His constitutional duty.

Because he has the right to appeal as a matter of right, not as a matter of privilege.

Unidentified Justice: Well, Wisconsin can well look at it a different way, that the reason he's setting forth the causes for frivolousness are not to harm his client, but, rather, to justify to the Court his withdrawal from the case.

Now, there do arise situations where a lawyer has two obligations; one to the Court, one to the client.

In justifying his actions to the Court, it seems to me he is certainly being no less loyal to the client that by the mere fact of his saying I will not take an appeal.

I mean, at that point, he's already betrayed the client if you consider that a betrayal.

From there on, all he's doing is justifying to the Court the reason for his withdrawal, so that the Court, if it sees that the reason is no good, can take appropriate action to be sure that a proper appeal is litigated.

Mr. Butler: I understand your concern, Justice Scalia.

The problem in that situation is that, for example, if we liken this to a trial situation as this Court has done in the past, in Evitts v. Lucey, they described the role of counsel.

They cited Strickland v. Washington and United States v. Cronic.

If you liken this to a trial situation, this would be akin to a lawyer coming in on the eve of trial, evaluating the case, telling the client it's obvious that you're guilty, it's obvious that we don't have a prayer, we ought to plead and Lake the best deal possible, and the client says, no, I want a trial, and the lawyer says, no, I'm going to plead you guilty.

Unidentified Justice: Well, Mr. Butler, I think there is a good deal of difference between a trial situation where the burden of proof is always on the Government and any competent attorney knows that he represents the defendant by simply putting the Government to its proof, just by cross examining, and on the other hand, on appeal, you get into situations, which I daresay you've confronted some yourself having filed two Anders, where you have to... you know, the burden of proof is no longer on the Government, the burden of proof is on the Appellant, and there just isn't much... there's virtually nothing to complain about.

Everything that you asked the trial court to do, the trial court did.

The jury still returned a verdict of guilty.

Mr. Butler: Justice Rehnquist, I think your question points to the very reason why this case is here.

It is precisely because in an appellate situation that the burden is now on the defendant.

Precisely because a defendant now needs a lawyer to act as a sword to overturn that appeal, it is for that very reason that the role of counsel becomes critical in appeal.

It's critical at that point.

He needs help, more help there so that he can come in and try to overturn the decision; otherwise, the judgment of guilt is already in, he has already been sentenced, and there is nothing further that can be done on his behalf.

That is the reason why counsel is critical on appeal.

Unidentified Justice: Yes, but you would agree, I take it, that there are some appeals, I don't know how large a class it is, that even the best lawyer in the world has virtually no chance of getting... of succeeding on; whereas, it's not nearly as easy to evaluate that in the trial situation.

Everybody agrees that abandoning a client or saying I think your defense is frivolous, therefore I won't represent you in trial, it just can't be done.

It isn't done.

It isn't a problem.

Mr. Butler: I understand your concern, Justice Rehnquist.

That's why we are defending the Anders decision, because Anders came down with a compromise, that allowed the attorney on the one hand to try to remain that advocate while, on the other hand, recognizing the ethical duty of the lawyer not to knowingly file a frivolous appeal and pass it off as a meritorious.

Unidentified Justice: Well, Mr. Butler, suppose the state as a matter of course set these appeals for a limited oral argument in each instance, and the lawyer comes in representing the defendant and has indicated to the Court that the lawyer wants to withdraw, and the reason is the lawyer thinks that it's frivolous, do you think the Court can properly ask the lawyer to justify that orally and say, tell me why you think we should let you withdraw?

Tell me why.

Mr. Butler: Not if the lawyer is going to remain an advocate on behalf of the client.

Unidentified Justice: You don't think the Court can properly even ask the lawyer at oral argument to explain?

Mr. Butler: That's correct, Justice O'Connor.

I think to do that, you are no longer acting in the role of advocate.

At that point, the client no longer has an advocate for appeal.

Unidentified Justice: Then you think that the lawyer has no duty to the Court, even when the Court asks the lawyer's help?

Mr. Butler: No.

I do think that the lawyer has a duty to the Court, and that is why the Anders decision has recognized that dilemma and tried to come down with an answer.

It's an answer that makes everyone uneasy.

No appellate lawyer I know likes the Anders decision because it puts you in a very awkward position of arguing a case that you already assessed lacks merit.

You have to make meritorious arguments to the best of your ability in that situation.

Unidentified Justice: Well, don't you recognize that every lawyer has two loyalties, in effect; one to the client and one to the Court?

Isn't that right?

Mr. Butler: Yes, but it's the duty--

Unidentified Justice: Yes, that's right, and it seems to me that the Court can ask the lawyer to tell the Court why the lawyer is taking a certain position.

In this case, the Court has made a universal question, tell me why.

Mr. Butler: --I think in that situation, it can only do so if it redefines the role of either the appeal or counsel in that setting because as long as this Court has taken the position that a client is entitled to the adversarial process in an appeal, and as long as this Court has taken the position that the client is entitled to an advocate, to then say, but in this narrow realm of cases, we're going to give these clients less than that is giving that class of clients less than the advocacy and the appellate representation than other clients are receiving.

So, in effect, the Court is asking us to wear two hats, to brief both sides, to be more of an administrative aid to the Court, and actually to argue as an amicus curiae, and this Court in Anders, in Ellis, in Evitts, and all other decisions discussing this issue, has said counsel cannot do that, counsel cannot act as an amicus curiae.

The irony of the state's position and the Wisconsin Supreme Court decision in this case is that it's far less onerous to argue or to take the position of the dissent in Anders as it is to take the position of the Wisconsin Supreme Court in this case because, at least in that setting, the client still had the appeal because the client can still come forward and make, absence of counsel, he can make his own frivolous arguments and still have a full appeal on the merits.

In this setting, the client does not receive that.

He receives less than an appeal.

He receives less than advocacy, and it is our contention that to adopt this procedure is to provide this class of clients with less than that they're entitled to under Wisconsin law.

Unidentified Justice: Do you think Justice Abrahamson, who dissented below, was very happy with the Anders situation?

Mr. Butler: I'm not sure she was.

I think that was one of the reasons that she called for in her dissent a re-evaluation of the rule.

There are obviously problems to this dilemma that Appellate counsel faced, but I am not aware of any position that protects the rights of the client and the ethical duties of the lawyer better than Anders.

So, it is our position that we would ask that this Court reaffirm Anders and reverse the Wisconsin Supreme Court.

I would ask to reserve the remainder of my time for rebuttal.

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

Mr. Kleinmaier, we'll hear from you now.

ORAL ARGUMENT OF STEPHEN W. KLEINMAIER, ESQ. ON BEHALF OF THE APPELLEE

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

It is ironic that in an attack on the Wisconsin procedure, which requires the defense attorney to explain the reasons for reaching a conclusion an appeal is frivolous, the case is based on the... the argument is based on Anders because in the Anders case, the petitioner himself, one of the remedies he thought would be better than the situation he faced was to have the defense attorney provide an explanation.

As quoted, the source of this is a footnote in Nickols, the Nickols v. Gagnon case.

The brief on behalf of the Petitioner in Anders recommended a procedure in the District of Columbia Court of Appeals because it afforded more adequate protection because counsel must convince the Court that the issues are truly frivolous.

That's what essentially the discussion requirement of the Wisconsin rule is.

The defense attorney who has stated that... set forth the facts and the law then asks... states it's frivolous and seeks to withdraw and all this discussion requirement does it ask him to explain why he reached that conclusion, and in making that requirement on the attorney, I think that is completely consistent with the Anders decision and--

Unidentified Justice: Does the state's procedure here satisfy the Anders requirement that the attorney point to anything in the record that arguably supports his client?

Mr. Kleinmaier: --Yes, sir.

As part of the procedure in Wisconsin also, the attorney cites the facts and the legal authority.

Unidentified Justice: And then he says, but this is frivolous?

Mr. Butler: Yes.

Unidentified Justice: Because these things are... these arguments are so baseless, they're frivolous, is that it?

Mr. Kleinmaier: Yes.

The Wisconsin procedure was the Court's attempt.

The rule is a codification of the Wisconsin case of Cleghorn v. State, which was a Wisconsin Court's attempt to implement the Anders decision.

Unidentified Justice: Well, Justice Harlan in Anders has said that you can't really point... if you can point to anything that's arguable, it just isn't frivolous.

Mr. Kleinmaier: That's a difficult part of implementing the Anders decision, and I think what maybe what's required is that the defense attorney review the case and he finds it's frivolous, and then he or she has to look at it and those things... when you review a record that you find is frivolous, there are certainly going to be things that draw your attention, you check out, because it just doesn't seem... seems out of the ordinary.

In reviewing the record and complying with Anders, the attorney would then point out, I think, the things that... the best arguments that could be found, and--

Unidentified Justice: Anders didn't say on its face that you weren't entitled not only to satisfy what the Court said the attorney had to say, but it didn't say that... it didn't hold that the... that it was impermissible for the lawyer to explain why he thought it was frivolous.

Mr. Kleinmaier: --Right.

It did not make a point of it either way.

In fact, in a footnote, it cited the District of Columbia rule and said there was not approving or disapproving of that rule in the Anders case.

Unidentified Justice: But I suppose the case that's arguably more against this Wisconsin procedure is Ellis.

Mr. Kleinmaier: Well, as I recall--

Unidentified Justice: That's a short precarium, but it doesn't say very much.

Mr. Kleinmaier: --And that's the problem, I think, that it doesn't say very much because in reading the case, we don't know what exactly it was the attorneys did.

There, they gave an evaluation.

I think a distinction between an amicus and an advocate, the advocate obviously is attempting to serve his client and he's going to review the record to find whether there's merit or whether it's frivolous, he has to review all the facts and all the law in the light most favorable to his client and, if, in reviewing it that way, he can find something that he can make a legitimate argument on, then he should pursue the appeal.

Unidentified Justice: Is it not true that in Ellis, both sides agreed the appeal was not frivolous?

That's the difference between that case and these others.

Mr. Kleinmaier: But I think that... the attorneys who had reviewed it had originally reached a conclusion, I think, based on the argument that--

Unidentified Justice: The Solicitor General agreed when the case was before us that it was not a frivolous case.

Mr. Kleinmaier: --But I think a case would be one where I think someone could look at it and say, you're probably going to lose, but it's not frivolous because you have a good argument, but you may still lose it.

I think in serving your client as an advocate, you're going to look at a case and say, you may have a chance... you may lose, but there's a very good argument that we should pursue.

The amicus, I think, would take more... advising the Court, would take the approach, there may be an argument but it's going to lose, therefore don't... you know, the advice is it's a losing argument and stop at that point.

That's, I think, a distinction between the two roles.

Unidentified Justice: Well, surely you can't withdraw under Anders just because you think the odds are against you on that.

Mr. Kleinmaier: That's precisely right.

Unidentified Justice: Then you wouldn't have any criminal appeals if that was the case.

Mr. Kleinmaier: That's precisely right, and that's where I think the attorney acts as an advocate because he doesn't view it that way.

He looks to see whether there's a good argument he can make, even though it might lose.

If he can convince the Court, he may be the one able to do it.

I think the discussion requires in compliance with the policy, an important concern of Anders is there's a statement in the Anders case, the Court, in reviewing the letter submitted by the attorney there, said one of the problems was there was no way to determine whether the attorney had acted as an advocate when he reviewed the record and the law.

This discussion requirement provides that information to the Court.

If the attorney just cites facts, cites some cases, and then jumps to the statement, the case is frivolous, there's no way to tell whether he evaluated the law properly.

When he gives the evaluation, the Court can then determine whether he reviewed the case as an advocate or more in the light of an amicus where he's just saying it might be a losing case.

In addition, when he does this, there's another concern that's been pointed out, that this constitutes briefing the case against the client in violation of Anders.

I don't think it does.

Anders already tells the attorney to cite the facts, cite some authorities, advise the Court if you've concluded the case is frivolous, and ask the Court to withdraw.

I think that the additional step of simply explaining how it jumped from law and authorities to the conclusion that it's frivolous does not constitute briefing the case against the client.

The damage that is done is flagging the case as being frivolous.

Simply to explain how he got to that conclusion is not going to do further damage to the client.

It's simply going to help the Court review the case.

Unidentified Justice: But for what it's worth, it does relieve you as representative of the state of a duty to brief the case.

Mr. Kleinmaier: I think that's right, but I think that's part of the whole process, because if the state is briefing the case, what you have is an appeal.

You have a brief filed for the client, the defendant; a brief filed for the state, and you have the Court deciding it, and that's a full-fledged appeal, whereas this is part of a process that recognizes that frivolous cases should not be brought... followed up on a full appeal, and this is a method of relieving the attorney from representation before the appeal is brought.

Unidentified Justice: Why should they be relieved?

Mr. Kleinmaier: So that the... the defense lawyer?

Because the appeal is frivolous and this Court has also recognized that the courts should not be clogged up with frivolous appeals.

Unidentified Justice: Is it true that the Government does not file briefs in these cases?

Mr. Kleinmaier: Not in Wisconsin.

If the Court... the defense lawyer files the no merit report, if the Court finds merit, then it's sent back to the attorney or a new attorney and the case is briefed and then it follows through regular appeals.

The state would file a brief, of course.

But, no, the state does not file any response to the no merit report.

Unidentified Justice: So, there's no appeal?

Mr. Kleinmaier: That's right.

Unidentified Justice: Why should the Court have to determine whether there is or is not merit after an Anders brief is filed?

Why isn't that your job?

Mr. Kleinmaier: Well, this Court said in Anders that the Court has the responsibility to make the independent determination whether the appeal is frivolous, and--

Unidentified Justice: I still ask, why isn't it your job, though?

It seems to me that the one who benefits is the state attorney.

Mr. Kleinmaier: --Yes, there is some benefit, but, again, I think the purpose of this is to avoid an appeal because the issue is determined as frivolous, and if you have the state responding, that is an appeal.

I mean, that's the way the... the full appeal in Wisconsin, there... in the Court of Appeals, I think in criminal cases, I think in all cases, the Court of Appeals, there are very few oral arguments and the entire appeal constitutes briefs being filed by each side and the Court reaching a decision.

So, another question, I guess, is if the state... if the Attorney General's office is involved on behalf of the state, what kind of brief was filed.

Is this one... what you have is a report from the defense attorney saying the case is frivolous.

Is the state then supposed to respond and say no, it's not frivolous?

The state's position would normally be that that's correct.

Unidentified Justice: May I ask, before this rule... how long has the rule been in its present form?

Mr. Kleinmaier: I think since 1978.

Unidentified Justice: Do you happen to know whether before 1978, when an Anders brief was filed without an explanation of why it was frivolous, did the state then respond?

Mr. Kleinmaier: No, it did not.

Unidentified Justice: So, that hasn't changed.

I mean, in either event, once the counsel for the Appellant has represented to the Court there's a frivolous appeal, the Attorney General's office says this is not a case to spend a lot of time on.

Don't file anything.

Mr. Kleinmaier: I'm not sure if even before this rule, if the briefs... if the no merit reports were even filed with the Attorney General's office.

I think they were filed with the Court.

I'm not sure about that point.

Unidentified Justice: Do you know where we could find or I could find an example of a brief that satisfies the Wisconsin rule?

Because the one that was filed in Mr. McCoy's case here, I guess, he said he purported to comply with Anders but left out the explanation of frivolity.

Mr. Kleinmaier: Right.

I--

Unidentified Justice: And that's the way this original proceeding got started.

Mr. Kleinmaier: --Right.

To get a brief filed in compliance with that rule, the only source that I would think of would be the Clerk's office for the Wisconsin courts.

Unidentified Justice: You say that it's possible to file a letter that satisfies both Anders and the Wisconsin rule, I take it?

Don't you?

I thought that's what you said.

Mr. Kleinmaier: Well, what I meant was I--

Unidentified Justice: All you have to do is add to an Anders brief when you say, I think that the case is frivolous, I want to withdraw, and here's why I think it's frivolous.

Mr. Kleinmaier: --That's right.

We acknowledge that it is in addition to Anders.

I mean, Anders itself does not specifically require it.

Unidentified Justice: But you think it's possible to write a letter that satisfies both Anders and the Wisconsin rule?

Mr. Kleinmaier: Well, I think that if you satisfy the Wisconsin rule, you will... you have satisfied Anders because the Wisconsin rule requires the same thing as Anders, and, in addition, specifically requires the attorney explain.

Unidentified Justice: But there is nothing in this case and there's nothing... not in this record, is there, an example of the letter--

Mr. Kleinmaier: No, it's not a situation where the evidence was introduced that would have precluded.

Unidentified Justice: --So, we really are sort of dealing in an abstraction.

Mr. Kleinmaier: Yes.

In that regard, yes.

The Wisconsin Supreme Court also pointed out one of the rationales for this, and I think it is a fact, and this is also consistent with Anders, that the documents submitted by the no merit report is of assistance to the Court and assistance to the Court was one of the policies or one of the things that the Court in Anders said was to be accomplished by the report, and this requirement to assist the Court by helping it in its independent review it has to undertake, but it will be of assistance to get the analysis from the... the evaluation from the defense attorney also.

I think that concludes the argument.

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

Mr. Butler, you have four minutes remaining.

ORAL ARGUMENT OF LOUIS BENNETT BUTLER, JR., ESQ. ON BEHALF OF THE APPELLANT-- REBUTTAL

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

Very briefly, one of the arguments advanced by the Assistant Attorney General in this case is to argue that there is no way any so-called no merit letter to determine if an attorney acts as an advocate on behalf of the client.

I would point out to this Court that this case does not present that situation.

This is a case where counsel has identified issues on behalf of the client, so the Court is in a better position to determine whether or not counsel's assessment is accurate based on the identification of those issues.

This is not the same as the situation that was presented in Anders.

In addition, the state has conceded once again here in the argument that a client will not receive a full appeal in an Anders situation.

This is directly contrary to the Wisconsin constitutional provision that provides that all criminal defendants receive an appeal as a matter of right.

Unidentified Justice: Well, certainly the Supreme Court of Wisconsin didn't think it was contrary to the Wisconsin Constitution or they wouldn't have said it was all right.

Mr. Butler: That's correct, but the Wisconsin Supreme Court in making that ruling basically admitted that it was going beyond the requirements of Anders and that it was asking an attorney to do something more than remain as an advocate.

Unidentified Justice: Well, that is undoubtedly a federal constitutional question.

But I don't see how you can rely here on a violation of the Wisconsin Constitution when the Supreme Court of Wisconsin has upheld the thing.

Mr. Butler: No, I'm not arguing that it's strictly a violation of the Wisconsin Constitution, from that standpoint.

Our argument is that by requiring an attorney to act as less than an advocate, which is what the 6th Amendment requires, and by requiring an attorney, once the state provides for an appeal as a matter of right, to provide the client with less than that appeal, then the 14th Amendment and the 6th Amendment of the United States Constitution have been violated.

Unidentified Justice: Mr. Butler, just to help me out on one thing.

You say that in this case, the lawyer did find there were arguable claims that could have been asserted on appeal.

Are those in the record, what those points were?

Mr. Butler: The issues that have been identified are in the record.

The issues that were identified, the attorney, myself, after identifying the issues, gave a preface to those issues indicating that, in my opinion, those issues are wholly frivolous and lack arguable merit.

However, here they are.

Unidentified Justice: But can you tell me where in the record those issues are identified?

Mr. Butler: Those are in the joint appendix.

Unidentified Justice: Are you the one who filed the Anders letter?

Mr. Butler: That's correct.

Unidentified Justice: And said that you couldn't really... and you left out the explanation of frivolity?

Mr. Butler: That's correct.

It's in the joint appendix, page 11.

Unidentified Justice: Thank you very much.

Mr. Butler: If there are no further questions, thank you very much.

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

The case is submitted.

We'll argument next in Case Number 86-1461, Edward J. DeBartolo Corporation v. Florida Gulf Coast, etcetera.

Attribution:

The OYEZ Project

Featured:

Wood v. Georgia - Oral Argument

Wed, 18 Feb 2009 06:13:17 +0000

Case:

Wood v. Georgia

Media File:

79-6027_19801104-argument.mp3

Related Transcript:

1980_79_6027_argument.xml

Transcript:

ORAL ARGUMENT OF GLENN ZELL, ESQ., ON BEHALF OF THE PETITIONERS

Chief Justice Burger: We'll wait for the noise to subside, counsel.

We'll wait for a moment or two, here.

I think you may proceed whenever you are ready, now, Mr. Zell.

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

This case involves an issue that was left open in Tate v. Short, and that is, may a trial judge revoke the probation of the probationer or offender if he does not have the funds to make the monthly payments.

The facts in this case are, I think, rather clear.

There are three probationers, of course; three Petitioners in this Court.

Raymond Wood, Edna Allen, and James Tante.

They were convicted several years ago of distributing obscene materials.

The records show that Mr. Wood was a clerk in a bookstore... no dispute about that... Ms. Allen was a projectionist in a theater, and Mr. Tante was the projectionist in that theater.

The fine imposed on Mr. Tante and Ms. Allen was a $5,000 fine and 12 months on probation... that was after the conviction.

They were to pay that fine as directed, which was $500 per month, so they would have paid the fine in approximately 10 months.

Unidentified Justice: And that was a condition of the probation was it not?

Mr. Zell: That's correct.

Mr. Wood was convicted in two counts and he received a $5,000 fine in each count, to run consecutively, and 12 months on probation.

Therefore, he had a 24-month sentence and a $10,000 fine, payable again at the rate of $500 per month over a period of 20 months.

Thereafter I appealed the case to the Georgia Court of Appeals, and I lost.

I then certioraried the Georgia Supreme Court and certiorari was denied.

I then certioraried this Court, and cert was denied with some justices dissenting.

The case came back to the trial court, through remittitur, that is, and of course while the case was on appeal in Georgia, as in most states in the federal system, the three Petitioners, or offenders, defendants, were not on probation.

The conviction, I think, was in March of '77, the remittiturs came back in October of 1978, and at that point, the three offenders, the three defendants, started serving their probation, right at the last week of October.

And the record shows that the probation officers told each one... there was a different officer for each defendant... I don't know whether there were three different probation officers... but anyway, each one said you must pay your fine at the end of next month, at the rate of $500 per month.

In the record, at page 71, I notified the Court immediately when they were put on probation that they did not have the funds and the fines should be remitted or suspended or some action taken, because there's going to be a problem in this case on this $20,000 in fines.

Unidentified Justice: On your theory, then, the Court is powerless to impose any punishments?

Mr. Zell: Oh no, the Court is certainly... has certain powers to enforce a... payments on the installment basis.

Obviously you have your civil penalties certainly, garnishment, levy on any property.

For example, Mr. Tante was a prison guard at this time, while he was on probation.

Mr. Wood had a job at a trucking company, I believe, he could have been garnished.

And Ms. Allen, unfortunately, was on unemployment compensation and I don't think you can garnish that, I'm not sure if you can.

Unidentified Justice: Well doesn't Georgia have some exemptions to its garnishment statute, for necessary expenses of living?

Mr. Zell: Yes, there's a certain percentage after... I think it's, it used to be 50 percent, and it's a little lower, but there's a certain percentage you can only take out for garnishment.

And certainly some small sum of money could have been affected by garnishment at this point.

Unidentified Justice: Well so your complaint is not that a fine was levied on someone who couldn't pay it?

Mr. Zell: Not at all.

Unidentified Justice: But that the fine was too high?

Mr. Zell: Correct.

Well that, and commensurate with, first of all, the administration of justice... what do you do with people who violate the law, and the judge, trial judge, makes a determination that these people can be released on the streets, in society, in public.

They are not a danger, they shouldn't be incarcerated, they shouldn't be warehoused... so to speak.

Unidentified Justice: Mr. Zell, if you prevail here, what's going to happen: mandatory imprisonment in every case, of an indigent?

Mr. Zell: Well, I'd like to think, in our system of justice, that trial judges will not take that position.

I'm sure some will.

And I'd like to think that a trial judge--

Unidentified Justice: I'm asking whether your argument might turn out to be counter productive?

Mr. Zell: --It could, yes.

I'm aware of... some trial judges have told me that if they can't lock up an indigent defendant on probation, they're going to get straight time sentences.

I'm sure that's a possibility.

Unidentified Justice: My other question is, have these prison sentences been served?

Mr. Zell: In this case?

Unidentified Justice: Yes.

Mr. Zell: Oh no, they've been... the judge let them stay out on bond pending this appeal, because they would have served their sentence if they had been incarcerated.

Unidentified Justice: So they... their sentences have been stayed?

Mr. Zell: That's correct.

Unidentified Justice: And they have not been served?

Mr. Zell: That's correct.

Unidentified Justice: What were the sentences?

Or, how much jail time will they spend?

Mr. Zell: Mr. Tante received... and Ms. Allen, received a 12-month sentence each.

Under the computation, this is a high and aggravated misdemeanor; they would serve, they get four days--

Unidentified Justice: Well, I... but the sentence was... they were put on probation first, weren't they?

Mr. Zell: --Yes.

And they served almost three months of that sentence.

Unidentified Justice: And then--

Mr. Zell: They have nine left.

Unidentified Justice: --And was... the probation was the same length as their sentences?

Mr. Zell: That's correct.

Unidentified Justice: I see.

Mr. Zell: That's correct.

Unidentified Justice: So they go back and serve their--

Mr. Zell: Nine months less good time, which is four days a month in this case; which would be 36 days less nine months, and they'd serve about eight months.

Mr. Wood has 2 years, 24 months on probation; he has served, again, three months, so he has 21 left to go, less four days a month, for the remaining 21 months--

Unidentified Justice: --Does this record show from what resources their bond was provided, if they were indigent and couldn't pay the fine, the bond cost them some money, I suppose, in Georgia?

Mr. Zell: --Yes.

The bond was provided for by their previous employer.

He put up the bond for them.

Unidentified Justice: What does this record show about their previous employer's practice in paying fines?

Mr. Zell: Well what happened was, and it's in the record, of course, that they were first fined in this case, and then thereafter they were charged again in another case, so that each one was, and a small fine was imposed and paid by their employer.

Paid by their employer, through me... the fine was paid, and they received something like very small suspended sentences.

The fines, I might add, it's on the record, were much smaller than this case, they were $750 fines, something like that.

And then when the remittitur came down in the first appeal, they were... the employer did not pay the fines in this case, for certain reasons such as a different change of attitude and a different employer--

Unidentified Justice: Are these Petitioners here in forma pauperis?

Mr. Zell: --Yes, that's correct.

Unidentified Justice: Well doesn't that suggest some validity to Mr. Justice Blackmun's observation, that if the people are before the Court, but not for the first time or the second time, but for the fifth time, and the Court feels that, you know, we don't want to warehouse these people and lock them up with murderers, but if we can't do anything else to them... if they are indigent, and small... or the small time fines haven't deterred them before, isn't there going to be a tendency to at least send them to the... some facility for confinement?

Mr. Zell: Okay, let me just relay a little chronology.

The second cases were imposed after this sentence.

Now this was their first conviction.

They stayed in the... stayed working at the theater and bookstore, and they were arrested and pled guilty and received a fine thereafter this sentence though.

And thereafter, they were before different judges, and they received a much more modest fine, I think something under... less than a thousand dollars.

And it was paid by their employer because they were working there, they were useful to the employer to keep working at the theater and bookstore.

Then when they went on probation they had to quit.

Unidentified Justice: Well is that really a very commendable motive, that the employer pays their fine because they were convicted of doing something that was illegal under Georgia law?

Mr. Zell: Well certainly you can't enforce any agreement between the employer and the employee, it would be against public policy, like enforcing a gambling contract; he promised to pay it, in some instances he did pay the fine.

As soon as they left work, he didn't pay the fines.

Unidentified Justice: Is this a common provision in Georgia, between employees of so called adult bookstores and their employers?

Mr. Zell: Yes and no.

It... many times the employer has paid the fines for employees, many times... many times he has not.

I just filed a cert in this court last week involving a case called Simpson v. Georgia, in which he received a $20,000 fine in a different theater, different business, and he's supposed to pay $1,000 a month.

And he was a short order cook.

And the judge again revoked his probation because he did not pay the $1,000 a month.

Unidentified Justice: Mr. Zell, do you have pre sentence reports in Georgia?

Mr. Zell: That's correct.

Unidentified Justice: Well don't they show how much a man is worth?

Mr. Zell: That's correct.

Unidentified Justice: So the judge knew that he had enough money to pay that fine, didn't he?

Mr. Zell: Well what happened--

Unidentified Justice: Can I assume that?

Mr. Zell: --The judge knew... well here's what happened, Your Honor... being, as a practical matter, when they were convicted in the first instance, the judge, Judge Alexander, was aware of what they were doing; they were making nominal amounts of money as a clerk/projectionist.

I'm sure the judge thought, it's rather obvious from the record, that he thought if he imposed this large fine their employer would pay it.

I'm sure that was the thrust of why the fine was so heavy, was so large, your employer will pay it, based on maybe other... other cases, or at prodding of the prosecutors, saying fine and dandy, don't worry, it will be taken care of.

Unidentified Justice: But the employer was just treating this as a cost of doing business, sort of a--

Mr. Zell: That's correct.

Unidentified Justice: --licensing fee?

Mr. Zell: That's correct, sort of licensing, that's correct.

Unidentified Justice: But he is here in forma pauperis, now?

Mr. Zell: No.

These people are the mere employees--

Unidentified Justice: Oh, the employees.

What would happen if--

--But they're not working there anymore?

Mr. Zell: --That's right.

Unidentified Justice: What would happen if the pre sentence report shows that Mr. Jones has a friend by the name of Mr. Smith and Mr. Smith will give him a thousand dollars, and they fined him a thousand dollars, and they're not working together or anything, this is just a friend; would the Court be entitled to go back on that?

Mr. Zell: Well,--

Unidentified Justice: On the fact that he used some bad information?

Mr. Zell: --Certainly, he should, the Court... again--

Unidentified Justice: Well when you get through, I want to know the difference between that case and this case.

Mr. Zell: --Well certainly he should... the judge should modify the condition of probation and the fine... if there was some misinformation.

Obviously, or even a promise by the defendant... how many defendants can afford--

Unidentified Justice: Would you at that time tell the judge that the man couldn't pay the fine?

Mr. Zell: --No, there was no representation made.

The trial was--

Unidentified Justice: You'd just let the judge go down that road?

Mr. Zell: --That's correct.

What happened is,--

Unidentified Justice: Now you want to complain about the judge?

Mr. Zell: --Well, I mean that's--

Unidentified Justice: You're not complaining about yourself at all, are you?

Mr. Zell: --Well, what happened is, the trial was over.

The jury returned a verdict of guilty.

At that point, the prosecutor... and it's not in the record, but I can... prodded the judge to impose a large fine.

That normally is done in these cases, large fines.

The judge was aware of their employment and I think the judge, as in many of these cases, felt that a third party would pay the fine.

There was no... we do not tell the judge the third party would pay the fine; we just... the judge was aware of the facts.

I did not know if the third party would pay the fine at that point, there was no guarantee, so to speak, at that point.

The case was then appealed.

We did not... they asked for a large fine, it was just a prodding of the prosecutor, and--

Unidentified Justice: But you didn't represent the third party, you represented this man?

Mr. Zell: --At... during the trial in the first instance, that's correct.

Unidentified Justice: You still do?

Mr. Zell: Represent the third party?

Unidentified Justice: No.

Mr. Zell: The defendants?

Unidentified Justice: Yes.

Mr. Zell: Yes.

Oh, before this Court, yes, I do.

Unidentified Justice: You were not a court appointed counsel?

Mr. Zell: That's correct, I was not.

Unidentified Justice: So he's here as an indigent, in forma pauperis, but he has paid counsel, then, I take it?

Mr. Zell: No.

The defendants in this case, the way it came about, was, I received a call... I wrote the Court letter, felt obligated to let the Court know that the defendants did not have the money after the appeal was terminated, and they were no longer working for the owner of the theater, and I notified the Court that they did not have the funds and to please take some action, that they no longer worked in there and there was going to be some problem, they did not have the money and it would not be forthcoming.

The Court chose not to take any action, this is in the record, page 71.

And they continued to report on probation, and that's the last I heard of it.

I then received a call, the first week of January, saying that they want you down in Court, that I represent these three defendants and would I come down to court to represent them.

I contacted the three defendants and I asked them, did they have money for counsel and did they want me to represent them, I would be glad to.

And they said yes, we want you as our lawyer, you're familiar with our case.

And so I went down to court to represent them at that point.

Unidentified Justice: You received a call from the Court.

Mr. Zell: Several... from the defendants, from the Court, from the solicitor... concerning the hearing, I received a notice of the hearing date, and of course, the defendants called me and notified me that they were in some trouble and what could I do for them.

Unidentified Justice: But not from the third party?

Mr. Zell: No, that's correct; not from a third party.

Unidentified Justice: I still want to know, you represent them officially here?

Mr. Zell: The defendants.

Unidentified Justice: And not the third party?

Mr. Zell: That's correct.

That's correct.

I have not been paid for this case and that's in the record.

I think the solicitor brought that out aptly during the trial that I had represented the defendants, but I was paid by the theater owner at the time of the trial, when they were working for the theater owner.

But as soon as they were put on probation their employment was terminated and therefore the ties were severed with the third party, or the employer.

Unidentified Justice: It's clear, isn't it, Mr. Zell, that the monthly installment repayments were conditions of the probation?

Mr. Zell: Absolutely.

Unidentified Justice: It was made clear that were these repayments not made the probation would be revoked and the custodial sentences would be imposed?

Mr. Zell: Okay.

At that point, the fines were imposed, that's correct.

There was no--

Unidentified Justice: It was made clear that it was a condition of the probation?

Mr. Zell: --Absolutely, yes.

It was a condition of probation.

Unidentified Justice: Well, would it be... and it's not contended that the prison sentences imposed, which were probated in this case temporarily, were excessive, under the law... they were authorized by statute?

Mr. Zell: Within the statute, yes.

They were... that is, the maximum fine is $5,000.

Unidentified Justice: Would it be permissible for a judge to impose an authorized prison sentence and probate it, depending say, on the condition that the defendant, convicted defendant stand on his head at twelve noon every day?

And then if it turned out that the defendant couldn't... didn't know how to stand on his head he would go to prison?

Mr. Zell: I think that's the reach in this case.

It's just an unreasonable condition.

Unidentified Justice: Well what, and let's say the judge knew at the time he imposed the probated sentence, that the defendant, the convict didn't know how to stand on his head?

If he could have imposed the prison sentence from the word go, couldn't he have imposed a... an impossible condition?

Mr. Zell: It becomes... that's correct, it was an illusory sentence, gives them a taste of liberty to see what they could raise, and if you can't raise the money, in prison you go.

It's really an illusory sentence.

That's what I point out in my brief.

Unidentified Justice: Well, from the point of view of the Defendants, isn't it better than a straight sentence from the beginning?

Mr. Zell: No question about it.

But what do you do when the judge makes a determination and assume he did, that these people should not be put in prison?

Unidentified Justice: Well but wasn't part of his determination the fact that they would be subject to some penalty, i.e., the payment of a fine?

Mr. Zell: Well--

Unidentified Justice: He didn't intend to let them off scot free?

And it wasn't his decision, as indicated here, that they shouldn't be imprisoned if they paid $500 a month?

Mr. Zell: --That's correct, that's correct.

Hoping that--

Unidentified Justice: Otherwise that they should be, that's the implicit condition.

Mr. Zell: --No question about it, that's correct.

And all I'm saying before this Court is that when you have the situation, is that other alternatives should be made available to the Court, and for the Defendants, such as community service work, it would be much more constructive.

How does it serve the administration of justice, the prison system; for example, in Georgia,--

Unidentified Justice: Well we're not running the Georgia prison system.

I mean, that's up to Georgia, to provide it, if it can... if it falls within the United States Constitution.

Mr. Zell: --Yes, but how does that help further the objective in this case?

Why do you want to incarcerate somebody for not having the money?

What... then you have this classification, suspect classification, poverty v. non poverty--

Unidentified Justice: Is that a suspect classification?

Mr. Zell: --Well I--

Unidentified Justice: As in San Antonio v. Rodriguz?

Mr. Zell: --Well, I took the position in my brief, and I take it now, that in social and economic policies, it perhaps is not.

But involving criminal justice, it should be.

Certainly, for the purpose of having the money and the man go scot free, such in this case, what if one of the probationers came up with the money?

Mr. Wood, was able to raise the money, went back into business and that's open to him, perhaps, goes back in the adult book business, gets the money, and pays his fine; he goes scot free, so to speak.

Unidentified Justice: Well you're suggesting that paying $5,000 is not somewhat painful.

Mr. Zell: Well it's painful if you don't have it.

I'm saying that if the person, they go and steal it--

Unidentified Justice: You mean it isn't painful if you have to go out and borrow it and put a mortgage on your house?

Mr. Zell: --It certainly is, if you have the financial resources to borrow the money.

Unidentified Justice: If you have the house.

Mr. Zell: If you have the house.

If you have--

Unidentified Justice: Well you're not suggesting that indigents should be free from any penalty for criminal conduct?

Mr. Zell: --Not at all; of course not.

Unidentified Justice: But the consequence comes out that way, on your argument.

Mr. Zell: That's correct.

If... if you use money as the criteria and the lack of money to go to jail.

And I think we have millions of people unemployed in this country, at the present time.

I think it doesn't serve any purpose, any purpose, to lock up people who do not have the money.

Unidentified Justice: Well if these people are in fact, indigents as you suggest, putting them to work in community service instead of incarcerating them isn't going to enable them to support their families, is it?

Mr. Zell: Well, what you do is, and this is just a suggestions, I mean not the only suggestion, is that if you give them community service work, perhaps on weekends, at nights... there are many ways to serve the community, and much more productive for the community for the system, help the society in which they committed the wrong; it's certainly much more noble than to just lock somebody up behind bars for 7 or 8 months because they don't have the money.

This case involves, and I'm sure the judge felt, and I conceded, that a third party would pay the money.

And it has not been forthcoming.

That's... obviously the judge had that basis.

This is similar in the Hunter v. Dean case, in which this case granted cert. It was a... if you remember, it was like a 10-year sentence to be placed on probation if you paid a $2,000 fine in advance.

The defendant could not... made a representation he could pay the money, he could not pay it.

And he was locked up.

And in Barnett v. Hopper, he granted cert in that case as well and vacated it as moot.

Same representation was made, I can pay the money if you'll just give me probation.

And the judge did and he couldn't pay the money, and the question is, do you lock people up where they don't have the money?

There should be other alternative means.

This involves traffic cases, misdemeanors or felonies.

Unidentified Justice: But you don't question, Mr. Zell, as I understand it, that the judge, so far as the Georgia statutes went, could have imposed the prison sentence right at the outset... prison sentences, without any probation whatsoever?

Mr. Zell: That's correct.

He made a determination they should be on probation at that point, that's correct.

Unidentified Justice: Well if he made a determination they should be on probation if they paid $500 a month?

Mr. Zell: Oh no, no.

Well, is this--

Unidentified Justice: That's a condition of the probation to be imposed?

Mr. Zell: --Yes.

They could go on probation, but they should pay $500 a month while they are on probation.

Unidentified Justice: Right.

Mr. Zell: And if they don't pay that $500 a month, they are to go to jail.

Unidentified Justice: Right.

Well they will also go to jail if they don't live up to the other terms of their probation--

--That's right.

--even if they pay the $500.

Mr. Zell: That's correct, that's correct.

Unidentified Justice: So it isn't just a condition that--

--One of several conditions.

Mr. Zell: Right, that's... which is in the appendix, that's correct.

Unidentified Justice: Right.

Mr. Zell, were there any proceedings against the employer?

Mr. Zell: In this case, no.

There was none.

They did not proceed against the employer.

Why, I don't remember why, I'm not sure why.

It was merely against the two employees.

And clearly again, the trial judge relied on the employer, frankly, I think, to pay the fines.

And now he's not going to do it, because of change of ownership, I might add.

He's gone now, and the money is not forthcoming.

And I don't see how, under Tate v. Short and Williams v. Illinois, that you could... this Court, could take the position to say that a man who doesn't have the funds goes to jail when the man or the defendant who has the funds, able to raise it through employee, employer or a friend, does not go to jail.

How do you square this case with Tate case and the Williams case?

Unidentified Justice: Yet, you concede that the judge could have sentenced them ab initio, to twelve months?

Mr. Zell: In the very beginning.

Unidentified Justice: Yes.

Mr. Zell: That's correct, that's correct.

He felt that they were good subjects, fit subjects, to be on probation.

That they should not be incarcerated... he made that determination.

Unidentified Justice: Well but isn't that a typical determination with a case of non violent, first or second offenders?

Mr. Zell: Generally speaking, I would say so, yes.

The... I might add that the American Bar Association of Standards relating to sentencing suggests... I mean, the judge imposes a sentence,... that he look at the profitability in the crime, non violent crime, but it also suggests, American Bar Association, that they not revoke the man's probation if he doesn't have the ability to pay the fine.

And in all law review articles I've read, and all the cases I could find, there's not one case except in Georgia as far as I know in Shepherdizing Tate and Williams, where a court has said if you don't have the money on the installment basis, you go to jail.

Unidentified Justice: Would you... what if the judge had said this,

"well I'm sentencing you to a year in jail, but I'm going to put you on probation subject to normal probation conditions and I'm also going to fine you $5,000, payable in installments and if you fail to pay the installments, you go to jail for ten days. "

That's a separate, I must have some way of... something to take the place of the fine, but I'll just send you to jail for ten days if you don't pay the fine.

But of course you are subject to going to jail for a year if you don't live up to the conditions of your probation.

Would you be here then?

Mr. Zell: I think so, yes.

I don't think a man should serve one day in jail based on his wealth.

I think that's... should be a suspect category, if it isn't already under Griffin v. Illinois case.

And I think that that should be a criteria.

It serves no purpose to either raise revenue, punish the defendant... because he sits in jail knowing that if he had the money, he'd be out, while other defendants and other clients I've had, have paid the fine and are not sitting in jail.

I think it causes--

Unidentified Justice: Are you saying that all criminal statutes that says 30 days or $100 are unconstitutional?

Mr. Zell: --Under your decisions, yes.

If you don't have the money.

Unidentified Justice: I don't know whether that's true or not; I don't think we've held that, yet.

We've specially reserved it.

And... but that's your... then your submission is that... that $100 or one day is bad?

Mr. Zell: No.

Unidentified Justice: What?

Mr. Zell: Only if the individual does not have the funds--

Unidentified Justice: All right, but that's bad to apply any indigent?

Mr. Zell: --Yes, or a person who has not squandered the money away, has not been negligent, willful; that seems to be the federal... at least in the circuit, I'm from the Fifth Circuit, and the Fourth Circuit, where they've reached that issue.

Unidentified Justice: What if he squandered the money, what difference does that make?

Mr. Zell: Well, I think then the Court, such as in a... I'm using an analogy as in a divorce rule, in a man supporting his family.

If he squanders away money that he didn't give to his family, he could be held in contempt of Court.

And I think this would be similar.

If he squandered the money away or had a good job that he turned down, to make a lot of money, willfully didn't work, I think then the Court can use that as a criteria to revoke him, put him in jail.

Because he's not trying under the probation, under his probation, to pay the fine.

Unidentified Justice: And you think it's the function of this Court to evaluate considerations of that kind?

Mr. Zell: No, it's the trial judge.

Unidentified Justice: But the, we... if you say it's a consideration there, you're, by implication, saying we must pass on that sometime.

Mr. Zell: Well certainly--

Unidentified Justice: And you said this was a constitutional issue.

Mr. Zell: --Certainly.

If a man is incarcerated, no question about it; if he's incarcerated, and there's no evidence to put him in jail, I think a writ of habeas corpus would lie.

If a man is put in jail for no reason, whether it be he has no funds or for whatever reason, the judge thought he ought to go to jail for no reason, he just didn't like the way... his hair was too long... I had a case like that recently, where the judge revoked a man's probation because his hair was too long.

And I think I luckily reversed that in the state courts.

But, a writ would lie... you can't lock a man up for no reason.

Unidentified Justice: Well what if a man were convicted of first degree murder and had no funds?

Mr. Zell: Yes.

Unidentified Justice: Would you say he couldn't go to jail?

Mr. Zell: You mean if... well, of course, in Georgia if you are convicted of first degree murder, you must either get a life or death sentence.

I'm only talking about where you're placed on probation or given a some kind of a suspended sentence and you use wealth, money, as the criteria to lock him up.

Unidentified Justice: But it isn't part of the trial judge's reasoning that you want to put as few people in jail as possible.

Mr. Zell: That's correct.

Unidentified Justice: And if he knew that you couldn't--

Mr. Zell: Collect the fine?

Unidentified Justice: --collect the fine or put him in jail, he... he probably would sentence him to jail in the first place.

Mr. Zell: Well, I'm going to take it from a theoretical point of view, if I may.

I'd like to think that trial judges will make a determination... and I think they are duty bound to do this... whether a man should go to jail or not, regardless of money, regardless of other criteria, where in the first instance should he put him out on the street, serve his sentence in society, first.

If he makes that determination as he did in this case, he then decides what other penalties to impose upon the Defendant, such as a fine, community service, weekends in jail, what other... myriad amount of things he could use to so to speak punish the man.

Well, not punish him, but make him helpful to the community.

Primarily I'd consider community service work would be the best thing to do with people who don't have funds.

That helps himself, he pays a penalty, he loses his recreational time on weekends and at nights, and he also helps the community by doing some charitable work.

What is the purpose of collecting this money?

Are we saying the government doesn't have the money to run itself?

Is this a revenue producing measure?

Or what are we furthering by saying you pay this money, it's important in the system of criminal justice.

It isn't important; it's very unimportant to collect money.

And the judges, trial judges should realize this and I think most of them do, frankly.

And to use money as a criteria to put a man in jail among murderers perhaps... and he sits in jail and he says golly, my friend paid the fine and I can't.

And he goes free because he had money.

I think this is a discredit to our system of justice and it should not be allowed, and I think you should follow the Tate and Williams case, this Court should, and did not permit this.

Unidentified Justice: Well what it comes down to is to find a punishment that is available for imposition on him and I suppose some people, due to circumstances, are free from any punishment except going to jail.

Mr. Zell: Free from paying money.

First of all, most defendants violate the law because they don't have money, obviously; poverty, I'm sure causes a lot a crime, I don't think there's any question about it.

And so most defendants are broke and have no money.

So the imposition of fines on people who are broke or poor or have no money, who have robbed or stolen to get money, it's just inconsistent.

You're just catching yourself going around in circles.

Unidentified Justice: Would you object if the Court had a hearing to find out if this man could pay $10.00 a week?

Mr. Zell: Not at all.

In fact,--

Unidentified Justice: Well I thought so, but you weren't saying it right then.

Mr. Zell: --That's correct.

Well--

Unidentified Justice: All right.

Mr. Zell: --In fact I asked the judge, I said look judge, reduce the fine, let's make it commensurate.

This is a... failure to pay as directed, $500 a month.

There's nothing with the judge saying, well, I misread this, I thought you could pay $500... I'll reduce it to $10.00 a month, which may be as much to this individual defendant as $1,000 a week would be to some other defendants who are perhaps involved in a Waco conviction... organized crime conviction.

Unidentified Justice: Your time is up.

But just one question, at least from me.

Pursuing Justice Blackmun's question, could the judge under Georgia law have said, I will consider probation if you will post a bond to guarantee the payment of your fine over a period of time, as a guarantee for these installments.

Would that be permitted under Georgia law?

Mr. Zell: I don't think so.

I think the sentence clearly reads as sentence or fine or both and I don't think it's permissible.

But again, it's to bar... based on his wealth, to post the money, needed money.

Unidentified Justice: Mr. Zell, let me ask you one more question.

So, supposing that an armed robber, convicted of armed robbery, came before the judge for sentencing.

Under your going around in lcircles argument, would it be a constitutional defense for him to say I just didn't have any money, I couldn't get a job and so I just had to commit this armed robbery?

Mr. Zell: I'm sure many defendants have said that to the trial judge; I certainly wouldn't advise this Court that I was represented to say that.

All we're saying is that after the judge makes a determination that he could be on the street, that he could be on probation, and he has a suspended sentence; don't lock him up later for not having wealth, not having material goods.

Unidentified Justice: Mr. Zell, I don't want to repeat myself, but the determination that the sentencing judge made was that he would continue him on probation so long as he paid $10.00 per month.

Mr. Zell: I think--

Unidentified Justice: It wasn't an unconditional determination.

Mr. Zell: --No, it was conditioned on paying the money, that's correct.

Unidentified Justice: Among other conditions?

Mr. Zell: That's correct.

It was conditioned on his wealth, on money, and he could not... he reached the other other conditions of probation, there were about ten of them in the record.

But the condition he couldn't reach was the wealth, the money condition, and that shouldn't be a criteria or reason to lock a man up.

Unidentified Justice: And other people who could satisfy that condition, but... and who could satisfy all the conditions stayed out of jail?

Mr. Zell: Who could pay the money, could stay out of jail.

And if the Court determines that... that this man paid the money and stayed out... then that would be a reverse discrimination, then the Courts say well maybe they could do some community service work, put in a lot of hours, some of your time is worth the minimum wage, $3.00 an hour, and work on weekends or at nights, working this fine off in the community.

Unidentified Justice: Well as one of my colleagues noted, it isn't our business to try to write Georgia's statute on that subject.

Mr. Zell: But certainly it's available to the judge under Georgia law.

Thank you.

Chief Justice Burger: Mr. Dunsmore.

ORAL ARGUMENT BY JOHN W. DUNSMORE, JR., ON BEHALF OF RESPONDENT

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

The issue in this case is whether a judge can condition probation on the payment of a fine, revoke that period of probation for non payment of the fine, particularly when the individual has represented to the Court that they had the funds or the means by which to pay the fine.

Underlying that consideration is whether the sentencing judge could properly consider third party sources as assisting the individual in the payment of the fine.

Now this case does not involve, as some cases previously to the Court have provided, extending the period of confinement greater than allowed by statute.

Unidentified Justice: Mr. Attorney General, suppose a man has got the money and he is sentenced to pay $5,000 a month, which is no problem to him.

But he starts serving the sentence at the end of the year 1929 and he is caught along with everybody else.

In Georgia, what happens?

Is there any relief for him?

Mr. Dunsmore: Yes, he can always go through it in Georgia, at any time, the Courts... we pointed that out in the footnotes, the Court always has the inherent power to modify a sentence or to release the individual from the conditions of his probation at that time.

Normal procedure as to what percentage of the cases, I could not indicate to you, but that is a means available to a defendant.

Unidentified Justice: You go to the sentencing judge?

Mr. Dunsmore: You go to the sentencing judge because he retains jurisdiction over that case, during that time that the individual is on a period of probation.

Now, I think it's important in this case that the individuals, at this time, are not in confinement.

And I was under the misapprehension, and I'll correct that, on page 9 of my brief, and I indicated that confinement resulted... it did not, as Mr. Zell said, initially.

I think the important factor is that these individuals are out on bond, on an appeal bond, that bond was posted on February 13, 1979, which was the date when the judge said that after the hearing in January, of '79, if you don't pay the arrears, I'm going to give you two weeks to pay the arrearage for approximately $1500, then I'm going to revoke probation.

Unidentified Justice: What was the amount of that bond?

Mr. Dunsmore: Now the bond for Mr. Wood is $20,000, and under the Georgia statutory scheme, the maximum amount... or, the amount that would have to be paid for that bond, according to my figures, would be $1,025.

The statute is Georgia Code 27-501.

That sets out the fact that you can't charge any more than 10 percent of the first five hundred dollars, or any more than five percent on amounts over $500.

As to the other two Petitioners, Ms. Allen and Mr. Tante; it was a $10,000 bond and I think my math worked out to something like 525.

Unidentified Justice: Is there anything in the record to indicate where this indigent got the money to pay that?

Mr. Dunsmore: No, and I think that gets into--

Unidentified Justice: Well if it's not in the record, I don't want you to pursue it.

I just wanted to know if it was in the record.

Mr. Dunsmore: --I think the interesting part of the case, though, which the Court can consider, is in our Appendix A, which is the revocation proceeding in January of 1979, Mr. Zell told the sentencing judge, the trial judge, Judge Alexander that these individuals' previous fines in connection with other cases, had been paid and that he had paid them.

Now,... I think--

Unidentified Justice: You said previous fines?

Mr. Dunsmore: --That is correct.

Unidentified Justice: Perhaps I misundertsood Mr. Zell, but I thought that this was their first conviction.

Mr. Dunsmore: All right.

If I can, the scenario is, this is their first conviction.

This is what happened: each one of them was arrested and they pursued their constitutional right to submit the matter before a jury; a jury in March of 1977 found them guilty as charged and the judge at that time said I'm going to put your sentence at 12 months, the maximum for these convictions of distributing obscene materials, since it's considered an aggravating... a misdemeanor of a high and aggravating nature, is 12 months and a $5,000 fine or both.

Now, after that time, they appealed to the Court of Appeals, then to the Supreme Court of Georgia, then a writ of certiorari.

In the interim, between the time of the October 23, 1978 order when the judge says all right, I'm going to... the terms and conditions of probation start on this date.

They entered pleas of guilty to subsequent offenses.

It was those subsequent offenses which are referred to in our Appendix A on the brief in opposition to writ of certiorari, where Mr. Zell tells the judge yes, I paid the fine, or the employers gave me the money to pay these fines--

Unidentified Justice: Well the could the judge have revoked the then pending probation because of that conviction of a subsequent crime?

Mr. Dunsmore: --Yes, he could have, I believe... well, I believe he could have.

Well, I think the important part is, of the case, is that he had... and what we're talking about here is sentencing discretion of a trial judge.

What may he consider?

Can he consider other things?

Now, in the United States v. Grayson, this Court said yes, the judge could consider the demeanor of the defendant when he said you know, I find your defense to be highly incredible and you know, basically, I think you're putting the sham on the Court.

By analogy, cannot the trial judge consider representations to him by third parties that we will pay the fines?

Now, what does this do in the mind of the trial judge?

He says yes, we're going to put you, I'm going to give you 12 months, and a $5,000 fine.

Or the 12 months and $5,000 authorized by law.

Unidentified Justice: What does the record show, if anything, about who paid the bond or the fee of $1,000, or more?

Mr. Dunsmore: Now, the bond as to--

Unidentified Justice: The bond for the... continued liberty, while this case is--

Mr. Dunsmore: --Well I--

Unidentified Justice: --Isn't there something in--

Mr. Dunsmore: --Mr. Chief Justice Burger, it was not until the 27th of October that I found out that these individuals had a bond posted.

Now perhaps I was negligent in some regard in not checking this out sooner, but in part, I relied in part on the solicitor's office to give me some of the background material that I initially supplied the Court with in our brief... petition for certiorari--

Unidentified Justice: --Well wasn't there some statement by counsel at one of these hearings that the employer had paid the bonds--

Mr. Dunsmore: --Oh Mr. Chief Justice Burger, yes, that's in regard to... well, two things.

I believe the Petitioners all said, and this is important, I think, they said that when we were employed, our employers told us that if at any time during our employment you're arrested or anything we will pay your fines, we will make sure that bond is arranged and we will provide you with legal representation.

Now in the appendix, there is indication that the King Bonding Company paid the bonds for these individuals when they were arrested... and, I would assume, the continuing appeal bonds until October 23rd, 1978.

Unidentified Justice: --Mr. Attorney General, if that's true, why wasn't the owner arrested?

Mr. Dunsmore: Mr. Justice Marshall, I have no idea, and I cannot speak for the solicitor of Fulton County.

Unidentified Justice: I understand.

Mr. Dunsmore: Now these individuals also indicated... and I think the representation is, too, properly to the Court, that here, the employer has... the employer even told one of them, I believe it was Mr. Tante, there was an indication in the probation revocation hearing, well how did you know to get Mr. Zell?

I believe there is testimony in there that he had represented them previously.

And I believe there's also testimony in that revocation hearing that the... it had been suggested by the employer to contact Mr. Zell.

And there's also an indication in the record that Mister... an inference, anyway, because I don't think it comes out clearly... an inference that the employer paid Mr. Zell's fee.

Now, I think we need to--

Unidentified Justice: Mr. Dunsmore, let me ask you one question about the appendix on page 21, and it's in the last paragraph there where that court states, and this is the trial court, order of probation,

"It is further ordered that the Court, and the Defendant is hereby advised that the Court may at any time revoke or modify any conditions of this probation or change the period of probation, and may discharge the Defendant from probation. "

Was any application made in this case to discharge the Defendant from probation?

Mr. Dunsmore: --None on the record, now.

And I say that with... well for the qualified remark, that on page 71, of the probation revocation hearing, there is an indication from Mr. Zell that I wrote the court.

But I think as we pointed out in our brief in this case, at the time the sentences were imposed, the Defendants... Petitioners in this case... sat back in silence.

They never went in to the probation officers at that time and said, you know, we can't pay.

There's an indication that the probation officer said we'll accept partial payments, and they never went in and told the... indicated to their probation supervisors that you know, we could pay a lesser amount.

They refused, and I use the word refused, to pay the fine because they were under the impression, and I think rightly so, from... on the conditions of employment... that their employers would pay the fine.

And therefore they took no action.

Now, I think what that amounts to in this case, regardless of funds, is are we not deceiving a trial judge?

And as Mr. Justice Marshall says, let the judge go down the road,... you know, many times you say well can silence be a condoning aspect?

I think it can, in this situation.

I think we're talking about the integrity of the sentencing function of the criminal justice system.

To allow criminal defendants to mislead a judge or, that is, to not bring to his attention facts that are different, let the judge rely on it, get the benefit of a lesser sentence, and then come back in and say, gee I'm sorry, we just didn't have any money.

Particularly when you had one year and seven months... 19 months intervening from March of 1977 to October of 1978 when they were actually put under probation supervisors.

In that period of time they had an opportunity to check with their employer, and say, are you going to pay the fine, the record is silent, they did nothing.

They never, at any time, went and tried to pay the fine.

There's no showing that they went out to see if they could borrow any money, to my understanding.

All of them were earning some sort of money and and the word indigent, I think, has been used loosely in this case.

One individual making $525 a month, another one $400 to $500 a month, and the one lady was on unemployment.

Unidentified Justice: Did they ever ask the Court to reduce the amount of the installments and put them over a longer period of time?

Mr. Dunsmore: No, there was no effort made at any time to reduce the installments or to seek anything else.

As a matter of fact, on page 69 of the Appendix... Appendix A, which is not the brown appendix, but the one appended to our brief in opposition... the judge, Judge Alexander, says I didn't ask the question because I thought I could enforce the agreement.

Right there, there's evidence right there that the judge was under the impression that the third parties would pay this fine.

Now why should the judge be able to look to third parties?

In the probation context, just as if we're putting the individual out on parole, we're trying to find an alternative to confinement.

Now an alternative to confinement has the purpose of rehabilitation.

We want to deminimize the amount of supervision that the Court has to engage in.

Now if the Court can look to a citizen, an employer or somebody in the community, that aids the Court in its carrying out of its rehabilitative function.

Particularly, you know, in the context when we put a man on parole; one of the things parole boards generally ask... where are you going in the community, who will vouch for you, do you have a job, is there somebody in the community grassroots that we can look to to assist us in rehabilitating you?

Now that same factor must be viewed in the eyes of the sentencing judge.

Now, Mr. Zell and Petitioners say well gee, that was an illegal agreement.

That is, illegal to the extent that you pre suppose that the individual was hired with the purpose of violating the law.

But I think the judge rationally could look to the employers because if they put a stake up in the community for an employer, there's going to be continued employment.

Now one of the terms of the probation was that they continue on employment.

If that individual is working he can contribute to his family.

He doesn't become a burden to society.

The collection of fine in this case is not like Tate v. Short, where they said it's a revenue measure.

The judge in this case is looking to third parties because they are going to help in the rehabilitative aspect of that individual.

And also--

Unidentified Justice: Isn't the judge a part of the whole thing?

Mr. Dunsmore: --A party?

Unidentified Justice: How can a judge take the word of a man who is the criminal?

Mr. Dunsmore: Well, I think it's... in any case--

Unidentified Justice: And the only thing that the owner is doing is paying additional taxes.

Mr. Dunsmore: --I don't consider it paying additional taxes, and I think--

Unidentified Justice: If the agreement is understood between the prosecution, the defense and the judge, that the guilty party will pay the fine of the guys that are convicted.

Mr. Dunsmore: --Well I think we're going one--

Unidentified Justice: Is that all, that's understood?

Do you have any problems with that?

Mr. Dunsmore: --Well let me explain that, Mr. Justice Marshall.

I think we're reading too much into it and we're... we're reading too much into it, because that assumes that the solicitor knew that the employer was going to pay the fine.

Unidentified Justice: I thought you said that that was stated in open court.

Mr. Dunsmore: I don't believe that the solicitor stated it in open court.

Unidentified Justice: I didn't say the solicitor, I said somebody did.

Mr. Dunsmore: Right, and that was the Petitioners--

Unidentified Justice: And the solicitor--

Mr. Dunsmore: --in this case.

Unidentified Justice: --was there, wasn't he?

Mr. Dunsmore: That's correct.

Unidentified Justice: So he heard it, didn't he?

Mr. Dunsmore: Right.

But I think the key, Mr. Justice Marshall and the Court, is that when an employer in this situation says that he will vouch for this individual... particularly rehabilitative efforts... is he not telling the Court that he is going to see to it that his conduct conforms to the law?

Unidentified Justice: Would it be the same as a dote?

Mr. Dunsmore: Would it be the same as--

Unidentified Justice: That the King tendered a dote says to the Court that I'll pay the fine for these guys?

Mr. Dunsmore: --I think you could say--

Unidentified Justice: Would that be all right?

Mr. Dunsmore: --I think you could say, because--

Unidentified Justice: Would that be all right?

Mr. Dunsmore: --Isn't that an indication that he's got a stake in this individual and that he's going to conform his conduct to the law?

Unidentified Justice: And you think the Court would go along with that?

Mr. Dunsmore: Well I don't know, but I think it's a reasonable basis, a rational basis for the Court to consider; that if somebody's going to pay some money out for them, are they going to continue to hire this individual and why would they pay the fines if they thought that the conduct... to continue, would they continue to violate the law?

You know, Mr. Zell says that to continue to work there would mean that they would violate the terms of their probation; that assumes that the conduct that the employer in this case has vouched for is going to continue.

And I don't think you can make that assumption.

Unidentified Justice: Mr. Dunsmore, I'm not sure I understood why you think all of this is relevant.

As the case comes to us, it's been determined by your Court of Appeals that it was established at the revocation hearing that these defendants were not able to pay these fines.

That's what the... that's what the Court of Appeals said, it said at the revocation hearings it was established that none of the Appellants had the financial resources to make the payments.

And the Court held, nevertheless, that that makes no difference, that you may incarcerate these defendants for failure to pay for the balance of their sentences, in one case the remainder of a two year sentence.

Now, isn't that the issue as it comes here?

Mr. Dunsmore: That is correct and the Court of Appeals just said--

Unidentified Justice: Well what difference does it make about third parties, or what the agreement was or what the anticipation of the judge was?

Mr. Dunsmore: --Well because--

Unidentified Justice: Because the Court of Appeals took it on the assumption it could not... that it had been determined that they were financially unable to pay.

Mr. Dunsmore: --Well the Court of Appeals--

Unidentified Justice: Why don't you just defend that... which you do, I'm sure, you defend that... that even if they couldn't pay, and were unable to pay, it was quite constitutional to put them in jail?

Mr. Dunsmore: --Right.

And--

Unidentified Justice: Isn't that your position?

Mr. Dunsmore: --That's correct.

And one of the things, we're not... there's no vindictiveness, we're not increasing the sentence at all.

The sentence was--

Unidentified Justice: No, I--

Mr. Dunsmore: --you know, 12 months, $5000 fine.

He could, and as Mr. Justice Rehnquist said and you said earlier, he could have slap, right off the board, said, you know, in you go and $5,000 fine.

Unidentified Justice: --And what if the sentencing judge had known at the time he imposed the... as a condition of probation... that the convicted defendants repay $500 a month, what if he'd known at that very moment that there was no possibility at all that the defendants could repay?

Mr. Dunsmore: Well that question is--

Unidentified Justice: Isn't that just the equivalent--

Mr. Dunsmore: --a little more, that's a little more difficult to add, and I think that assumes... and would put us in a more difficult position, because there, there's an indication of vindictiveness.

And as Mr. Zell said, an illusory.

But there's no evidence of any vindictiveness at all in this case.

I think that is an essential matter.

Unidentified Justice: --What if he had been morally certain that the defendants couldn't meet one or more of the other conditions of probation?

Mr. Dunsmore: Well I agree, I think it makes it far more difficult, because they are... impuning bad faith to the judge and I don't think, on the record here, there's anything to impune lack of judicial integrity on the part of the sentencing judge.

I don't think we can go that far, to say that.

And then we're hypothesizing and going to all sorts of realms that are not in the confines of this case.

Unidentified Justice: Mr. Attorney General Dunsmore, I got the impression from your adversary that the problem presented by this case is somewhat unique to Georgia.

Do you have that same impression?

And if so,--

Mr. Dunsmore: Well I'm not too sure of... when he said unique to Georgia... I take it, in terms of the fact that judges don't place individuals on, let's say, spend five nights in the county jail or work for a health facility.

I don't think that's unique, because I have... and this is outside the record, I have heard from other individuals that... where individuals haven't had the fine, that you know, they said, well... like for example, in a traffic case, spend one weekend a month driving around with the hospital ambulance authority or something like that.

So, I don't think it's unique to--

Unidentified Justice: --But his suggestion seems supported by the fact we've had two previous cases from Georgia where parole was revoked because of inability to pay a fine.

I just don't know whether it arises in other jurisdictions or not the same way.

Mr. Dunsmore: --Mr. Justice Stevens, I couldn't... couldn't tell you that.

But I don't think that it... you know, that it's unique, because I do know from some limited experience outside, that you know, other alternatives, depending on who the judge is.

But what we're getting back to, or what I believe we need to get back to is, the sentencing discretion of the judge and the fact that other alternatives are available or he could consider other alternatives, is it unconstitutional to consider financial resources, and is it unconstitutional to enforce the terms of the sentence which is prescribed by law?

And that's exactly what we're faced with, and we say it's not.

And we say, particularly, that it's not, because there is some element of deception in this case.

It was, Mr. Justice Marshall said, you know, leading the judge down the path.

I, as attorney, and even as a citizen, would find that somewhat disturbing and irreprehensible that somebody sits down and misinterprets or misleads the Court, particularly in the context that we're brought up... particularly the aura of the Court.

--I think most criminal defendants and most individuals, when they are faced in a court situation, tend to be honest.

Now, and I'm not supposing this case that the defendants were, you know, were less than honest, but they didn't need to speak up and say the third party is paying the fine.

I said that after 19 months, particularly on October 23, 1978, or even during that period of time, why didn't they go to their attorney and say look, there's just no way we can pay it.

Why wait three months until the solicitor goes in and says I want an order to revoke your probation?

Where is the good faith effort on their part?

And I think that's fundamental.

I think we need to reach that issue and I think in reaching it, we would hope that the Court would say that the trial judge in this case did not abuse his discretion.

And we thank you for that.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

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Featured:

Holloway v. Arkansas - Oral Argument

Sun, 08 Aug 2010 19:14:27 +0000

Case:

Holloway v. Arkansas

Media File:

76-5856_19771102-argument.mp3

Related Transcript:

76-5856_19771102-argument.xml

Transcript:

Argument of Harold L. Hall

Chief Justice Warren E. Burger: We will hear arguments first this morning in number 76-5856 Holloway against Arkansas.

Mr. Hall you may proceed whenever you are ready.

Mr. Harold L. Hall: Mr. Chief Justice and May it please the Court.

There is one question presented, one point of law presented to the Court for consideration today and that is whether the petitioners were denied effective assistance of counsel, but although the trial court appointing a public defender to represent three defendants in the same trial over their objections.

Prior to the trial a motion for a severance and separate counsel was filed by the public defender with the Court and it was overruled.

Before this third trial on the day of the trial, counsel for the petitioners made over a motion which was denied.

The trial started and during the direct examination of one of the petitioners, another petitioner who is there at the counsel table objected to a question to which the Court overruled and said your attorney will answer any, make any objection on your behalf.

At that time out, the public defender was asking the witness a question which the witness also happens to be a codefendant and he was unable to make an objection on behalf of the petitioner Holloway because he was also his attorney and attorney for the witness.

Chief Justice Warren E. Burger: Was there any difference in the general nature of the defense as between and among these defendants?

Mr. Harold L. Hall: Well, sir prior to going to the Court there was, but then when the Court said you will represent all three, you cannot cross-examine your own witness which happens to be a defendant.

I had to change my plans, and I could not cross-examine my own witness to bring out incriminating evidence against he or the other two codefendants.

Chief Justice Warren E. Burger: Did you make any proffer that the witness was inherently a hostile witness and asked for the cross-examination under the hostile witness rule?

Mr. Harold L. Hall: No, sir because he was my client.

Chief Justice Warren E. Burger: No.

Mr. Harold L. Hall: All three.

Chief Justice Warren E. Burger: That would not necessarily bar that proffer --

Mr. Harold L. Hall: Yes.

Chief Justice Warren E. Burger: As an explanation of why one witness might be hostile with respect to another?

Mr. Harold L. Hall: But I have been admonished by the Court not to cross-examine my own witness, I could not cross examine, these are exact words, well, you have no right to cross examine your own witness then he told me to proceed like you told me to.

Chief Justice Warren E. Burger: What was their defense that they had --

Mr. Harold L. Hall: They had alibi defense.

They testified over my objections, I mean, over my advice and denied being there, which I could not state to the Court what they have told me in confidence.

In discussing the case with them, I talked to each one individually as they requested and so anything one of them told me was out of the hearing of the other two.

Unknown Speaker: Mr. Hall, do I understand that the respective alibi defenses were not incompatible, however?

Mr. Harold L. Hall: No sir.

Unknown Speaker: In Arkansas is a codefendant then permitted to cross-examination of another defendant, when he takes the stand?

Mr. Harold L. Hall: If they have separate counsel, yes sir.

This is the first instance that come across where I have been appointed to represent three over my objections where there was a conflict of interest in my opinion.

Unknown Speaker: But it is clear that if they have separate counsel they may (Voice Overlap)

Mr. Harold L. Hall: They can, yes sir.

The Court told me to proceed as he had told me to, we went on, and I was abiding by the ABA standards that a lawyer should decline to act for more than one defendant if there is a possible conflict, but on this case a public defender, we had to go ahead and take the three and did not make a motion to the Court and at no time did the Court ever asked me to eliminate, I mean, to find what the conflict of interest was.

Unknown Speaker: Mr. Hall do you want the per se rule or you are asking for that one counsel may not represent more than one codefendant?

Mr. Harold L. Hall: Well, sir if there is no conflict, at the attorney's investigation there is no conflict I have represented more than one since that time.

Unknown Speaker: What happens, how many public defenders officers do you have in Little Rock, just one?

Mr. Harold L. Hall: I just have one and three others to handle the caseload for the full district, two counties.

Unknown Speaker: Does that mean that if you represented one of these codefendants that your office could not represent any of the others?

Mr. Harold L. Hall: Well, there are only being three public defenders in the office or five if they are all mingled together, we have one secretary to help with it and that makes it hard to keep one's file privilege from the other.

Unknown Speaker: So it would mean that the Court would have to go outside your office to appoint for the codefendants?

Mr. Harold L. Hall: Yes sir.

Unknown Speaker: Go back to the older system?

Mr. Harold L. Hall: Yes sir.

Justice Byron R. White: But you do I take it insist that if the attorney requests it that he should be relieved of a joint representation?

Mr. Harold L. Hall: Yes, sir I think for sure.

Justice Byron R. White: That is, I mean, to that extent it is per se rule you are submitting?

Mr. Harold L. Hall: Yes, sir.

Chief Justice Warren E. Burger: Should it be just a request or a request accompanied by a representation such as you did make here that there were inherent conflicts that would impair the defense of each?

Mr. Harold L. Hall: Your Honor I filed a written motion and two oral motions and each one of the defenders at the trial got up and requested a separate counsel and a severance.

Justice Harry A. Blackmun: But, what the Chief Justice asked whether you must also say that there is a conflict in your opinion?

Mr. Harold L. Hall: Yes, sir, there was and I --

Justice Harry A. Blackmun: And must you then go on and detail what the conflict might be?

Mr. Harold L. Hall: Well, the Court did not ask me and told me to proceed on, like he had told me not to cross-examine my own witness, he did not ask me what the --

Justice Harry A. Blackmun: Well, I know, but in this case what do you think the rule should be?

You should have to reveal what the conflict is or that just a representation, is not it?

Mr. Harold L. Hall: No sir, I think it should be one separate attorney for each defendant because if the attorney the reveals what his clients told him in confidence to Court or anyone then he loses his respect from his client and freedom where he would go in and converse with him further in the matter.

Chief Justice Warren E. Burger: Would you have to go that far in this case pursuing Mr. Justice Blackmun's inquiry.

Is it not sufficient for you to persuade the court that in these circumstances it was an abuse of discretion after you had represented that a conflict existed.

You said that you have since then represented codefendants?

Mr. Harold L. Hall: Yes sir, where there has been no conflict of interest to each one and that is for --

Chief Justice Warren E. Burger: And was not that enough, if you show a claim and abuse of discretion by the trial judge?

Mr. Harold L. Hall: And this when he had his mind made up Your Honor with what was going on and I had to go as the Court said or be in contempt.

Unknown Speaker: Mr. Hall are funds available in Arkansas for the retention of outside counsel in a situation like this?

Mr. Harold L. Hall: Your Honor, at the present time we are paid a fee on each case which we try or appointed on which goes into a fund.

When the fund builds up they pay our salaries.

That fee is $ 350 maximum, with a $100 for investigation, if we use investigators.

If they wish to appoint three different attorneys they would not go to county, but it would go to counsels.

They pay us (Inaudible) fee we still get one fee.

They would if they had an additional counsel to be paid more, but we are paid only per case basis and it goes into the fund, then they pay your salaries, and all expenses that are there.

Unknown Speaker: And that fund would be available to retain outside counsels?

Mr. Harold L. Hall: No sir where the order --

Unknown Speaker: Yes, if your motion had been granted, where would the lawyers come from and who would pay them?

Mr. Harold L. Hall: They would come out of county general fund.

Unknown Speaker: General fund.

Mr. Harold L. Hall: Which they have a certain amount set aside per year.

Unknown Speaker: Well, that answers my question.

Mr. Harold L. Hall: Yes, sir.

Justice William H. Rehnquist: Mr. Hall, as I read the State Supreme Court's opinion in this case, they found there was no prejudice resulting from the failure to appoint separate counsel.

Do you attack that finding or do you say that notwithstanding that finding you are entitled to a reversal here?

Mr. Harold L. Hall: I could not show within the prejudice without revealing the information that my clients had told me and I could not tell the Court that or to bring it out, that they have told me contrary to what they testified on the stand.

Justice William H. Rehnquist: How about telling the Supreme Court of Arkansas?

Mr. Harold L. Hall: Well, sir there was three men who come into this cafe.

It had closed, they went into back door, one downstairs, one man stayed at the top of the stairs, two of the men went to the room where they were counting the money received for the day, and there they robbed them and two other men raped two other girls.

Now, there was no testimony that the third man raped them.

Just two of them, each one has raped twice and they testified by the same man, I mean same two.

Now, there is a question as to who was at the top of stairs, and who was involved in the rapes downstairs.

I had that information and I could not cross-examine --

Justice William H. Rehnquist: But did you tell what you have said in response to my question just now, did you tell that to make that point in the Supreme Court of Arkansas when you were arguing?

Mr. Harold L. Hall: No sir because it was not in the record.

I could not bring out from the witness as they testified.

Justice William H. Rehnquist: Why can you bring it out to us in a way that you cannot --?

Mr. Harold L. Hall: But I have not mentioned any names.

Justice William H. Rehnquist: Well, but could not you have done the same thing in the (Voice Overlap).

Mr. Harold L. Hall: I was just answering your question sir, where you asked me, now the judges did not ask for oral argument in Arkansas Supreme Court.

Justice William H. Rehnquist: This was not orally argued?

Mr. Harold L. Hall: No, sir and they did not ask me the point and they asked me I would have explained like I had here.

Unknown Speaker: Mr. Hall, I am rather bothered the way my brother White is.

You are presenting a constitutional issue here and that means that we have to evolve some standards.

I take it in your colloquy with the other justices that you are really asking for a per se rule.

Am I not correct this Court has never gone that far before, we certainly did not do it in the Glasser case?

Mr. Harold L. Hall: No, sir.

Unknown Speaker: But you feel this is the only way to handle it here?

Mr. Harold L. Hall: Yes sir.

Unknown Speaker: But only if the attorney demands a separate representation, representing that there is a conflict?

Mr. Harold L. Hall: Yes, sir.

Justice Thurgood Marshall: And where the judge is --

Unknown Speaker: Is it enough on his demand.

Mr. Harold L. Hall: Sir?

Unknown Speaker: Is it enough fund if he already demands it, or do you think --?

Mr. Harold L. Hall: The attorney and the defendants also.

Unknown Speaker: Yes, but do you think you should come up with something more than an allegation of conflict?

Mr. Harold L. Hall: Well, if there was proof of -- I mean, you have to put on the confidential information of the clients, I do not think it should be to the trial judge.

Justice Thurgood Marshall: Well, in this case the trial judge did not ask for it, did he?

Mr. Harold L. Hall: Did not ask for it and --

Justice Thurgood Marshall: He did not ask for anything?

Mr. Harold L. Hall: No sir --

Justice Thurgood Marshall: And if he had asked what you would have told him, what you told us?

Mr. Harold L. Hall: Yes, sir.

Unknown Speaker: But you see on coming back to standards, is it enough merely to make the request or must the request be accompanied by at least the proffer as the Chief was indicating and I would be interested in where you think the perimeters of this constitutional issue should be drawn?

Mr. Harold L. Hall: Well if there is a parole for proof it would have to be kept or the defendant's communication, his privilege communication to his attorney would be kept mute and it is hard for different trial judges, it is hard to one of them will discuss the matter and let something slip where normally he would not.

Unknown Speaker: Well, one way out would be this in camera here in before the judge and I take it, you do not go for that?

Mr. Harold L. Hall: No, sir.

Not the trial judge and if there was a different judge.

The judge is not hearing the case.

Chief Justice Warren E. Burger: What was to prevent you from representing to the trial judge with or without an invitation from the trial judge exactly what you have responded now without naming the names, that stating precisely what you have stated to us?

Mr. Harold L. Hall: I feel that the Court would remember that and some of its ruling there might be presence to want or -- may where he would be wanting which one was the one who stayed at top of the stairs.

Chief Justice Warren E. Burger: Somebody will remember it now if you get a new trial if you get what you are after?

Mr. Harold L. Hall: But we have still not mentioned any names.

I was never asked whether the trial judge or the --

Chief Justice Warren E. Burger: My question to you now was ? why could not you make that representation to the judge, but declined to identify which person was at the head of the stairs and so forth, just as you have not disclosed that to us?

Am I arguing to prevent you from doing that?

Mr. Harold L. Hall: No, sir.

Justice Thurgood Marshall: But Mr. Hall the record does show that the first time any judicial officer asked you, you gave it?

Mr. Harold L. Hall: Yes, sir.

Justice Thurgood Marshall: That was right here.

Mr. Harold L. Hall: Yes, sir.

Justice Thurgood Marshall: And if you have been asked before you have to give?

Mr. Harold L. Hall: As he had posed (Inaudible) at this morning.

Chief Justice Warren E. Burger: It is not the role of defense counsel to be bashful in presenting these points in either this Court or a trial Court, do you think?

Mr. Harold L. Hall: No, sir.

Justice John Paul Stevens: Mr. Hall, you did, if I understand the record correctly, you did represent it to the trial judge, you did not just ask for a separate lawyer.

You did represent to them that you had conversed with the three clients and in your professional judgment there was a conflict of interest?

Mr. Harold L. Hall: Yes sir.

Justice John Paul Stevens: You made that representation as a member of the Bar?

Mr. Harold L. Hall: Yes sir.

Justice John Paul Stevens: So your rule that you asked for is one that would only apply where the lawyer puts his professional reputation on the line in that way?

Mr. Harold L. Hall: Yes sir.

Chief Justice Warren E. Burger: You have referred to the American Bar standards on this subject.

In those standards is there not also a standard that if one public defender in a public defender office is presented with the problem that you had that then none of the members of that same staff should be on the case?

Mr. Harold L. Hall: That is right.

Chief Justice Warren E. Burger: Is that not true in your standards?

Mr. Harold L. Hall: Yes sir.

Chief Justice Warren E. Burger: In other words, for those purposes the public defender staff is treated just as though it were a law firm?

Mr. Harold L. Hall: One firm, yes sir.

Chief Justice Warren E. Burger: Very well, thank you Mr. Hall.

Mr. Harold L. Hall: Thank you sir.

Chief Justice Warren E. Burger: Mr. Purvis.

Argument of Joseph H. Purvis

Mr. Joseph H. Purvis: Mr. Chief Justice and May it please the Court.

The State of Arkansas here would submit that there are really, but two issues.

The first is whether in fact a conflict of interest did exist here, and the second or broader issue is if the issue of conflict arises who bears the responsibility for making that decision.

The Glasser decision of this Court in 1942 merely stated that ineffective assistance of counsel was given where an attorney was representing conflicting interest and the majority of jurisdictions in this country have held that it is not an imaginary conflict that is spoken off, but that it must be shown that there is in fact some real conflict, something more than a possibility of conflict.

The State of Arkansas submits that the defense counsel here submitted a petition for separate counsel that stated merely that the ?possibility? of conflict existed.

Prior to trial, the trial Court held a hearing on this motion in an effort to ascertain what if any conflict existed?

We are not blessed in the record with a transcript of that hearing.

However, the Court did find at the conclusion that there was no conflict.

The --

Justice Thurgood Marshall: Where is that told that there was no conflict where the judge said there was no conflict?

Mr. Joseph H. Purvis: The judge denied his motion for --

Justice Thurgood Marshall: But where in the record is it that the judge said there is no conflict?

Mr. Joseph H. Purvis: I do not know that Mr. Justice Marshall, I do not know that the Court elucidated those exact words, but the trial court continually stood ready to hear evidence of some conflict, and there was none that really existed here.

The defendants were not precluded any defense.

They all alleged alibi defenses that were certainly not inconsistent.

They testified to this effect.

There is no indicia that the defense counsel could not have gone forward and made such a proffer.

Now, the defense counsel has set forth some very nice standards dealing with confidentiality and lawyer confidences, but it seems to me that he overlooks the fact that number one - this case in particular involved no conflict, that he very easily could have outlined to the trial court, the general nature of the conflict and did not have to divulge confidential information to the court in order to show that a conflict existed, but apparently the defense counsel never made that impression or conveyed that to the court and the state would certainly submit that there was no conflict that existed here.

Counsel made a great deal of the fact that he was unable to cross-examine his witnesses.

Indeed there was nothing to be gained by the cross examination of it.

Justice John Paul Stevens: Mr. Purvis, let me ask you question about the practical preparation for the trial.

Supposing that one of the men was at the top of the stairs.

Mr. Joseph H. Purvis: Yes, sir.

Justice John Paul Stevens: And the lawyer made the judgment that it would be better for that particular defendant to tell the whole truth; to explain that he was there, he was at the top of the stairs and the other two men were at the bottom of the stairs and did the other things.

Could the lawyer in good and consistently with his obligation to the other two people, advise that defendant to take that posture at the trial?

Mr. Joseph H. Purvis: I think had defense counsel done so, sir, he certainly would have made a case of conflict and he could have merely outlined the --

Justice John Paul Stevens: Could he have done that -- could he have done that while he was representing all three?

Could he have said, ?I advise you,? who was the man at the top of the stairs, ?I think you ought to tell the whole truth??

Mr. Joseph H. Purvis: I think he should have gone to the Court when he perceived this conflict.

That is the nature of the State's position that asking for an early hearing and explaining this without dealing into specific --

Justice John Paul Stevens: But, in order to go to the Court, would he had not had found it necessary to explain to the Court that these men were really guilty.

Would that not have been necessary in order to tell the Court about the problem?

Mr. Joseph H. Purvis: No sir, I think he could have gone to the Court and explained Your Honor, ?I have one of my three clients who wishes to testify and his defense is or the essence of his testimony will be totally antagonistic.

It will be exculpatory and it will cast the shadow of doubt and try to thrust the guilt on the other two.

I do not think he is divorced or has conceded that any or all are guilty.

He is merely spoken of what his counsel will testify or what his client will testify.

I think then if the Court knows this and I think certainly here had the trial Court known this, it would have granted the motion for separate counsel.

Justice Thurgood Marshall: This would be before the trial.

Mr. Joseph H. Purvis: Yes, sir.

Justice Thurgood Marshall: Well, what would have happened if that developed in the middle of the trial?

Mr. Joseph H. Purvis: I think if it develops in the middle of the trial and the State does not refute the position if at any time during the trial it can be shown that a conflict actually exists then I think the trial court has the duty to declare a mistrial if it is in trial --

Justice Thurgood Marshall: And then what do you do with double jeopardy?

Mr. Joseph H. Purvis: Arguably, due to --

Justice Thurgood Marshall: Yeah, it will be arguably?

Mr. Joseph H. Purvis: Yes, sir.

It is a very grave danger here, but I think the Court would have no duty or no choice, but to declare a mistrial.

Justice Byron R. White: But do you contend that the motion made at the opening of the trial which was a renewed motion was untimely?

Mr. Joseph H. Purvis: No, sir.

I simply think that the --

Justice Byron R. White: And you think the Court correctly said that the inability to cross examine a codefendant who wants to testify is an insufficient reason for a separate counsel?

Mr. Joseph H. Purvis: Mr. Justice White, there was no indication, and the court had no indication, the Court was not advised as to even the real nature of the potential conflict here.

Justice Byron R. White: Alright, so your answer is no.

I mean the court was told that the defendants were going to testify.

Mr. Joseph H. Purvis: He was told that there was a possibility yes, sir.

Justice Byron R. White: Possibility or they got up and said they were going to testify it.

Mr. Joseph H. Purvis: Well, that was at the closure of the State's case, but the court had no information --

Justice Byron R. White: Yes, that is right.

That is when it was, but you do not say that that motion was untimely, do you?

Mr. Joseph H. Purvis: Not necessary --

Justice Byron R. White: The Court did not say it was that he just denied it.

Mr. Joseph H. Purvis: That is right, because the court --

Justice Byron R. White: And he said that apparently the inability to cross-examine is insufficient reason --

Mr. Joseph H. Purvis: Because the court had no information before that there would be anything that would be antagonistic or indicative of a conflict at that time.

Justice Byron R. White: No, he did say -- the court said -- that is alright that they testified.

There is no conflict of interest is what the court ruled.

Mr. Joseph H. Purvis: Based on the information that the court had at the time which was minuscule merely that there was a possibility of a conflict of interest.

Chief Justice Warren E. Burger: You do not think it would be an appropriate rule that a court would be obliged to accept the representation of a member of the bar if he tendered that as a member of the bar and as an officer of the court, that is not enough?

Mr. Joseph H. Purvis: I think Mr. Chief Justice that the trial court bears a very grave responsibility and any such decision such as this needs to be made by an independent authority.

The State contends that the burden for bringing up conflict of interests certainly lies with the members of the bar, but it is the ultimate responsibility of the trial judge, the impartial independent trial judge to receive the information outlining the nature of the conflict and then to make a decision as to whether a conflict does in fact exist, if one does exist then I think the duty is to appoint separate counsel.

Justice Thurgood Marshall: But there is no question that he did deny the right to cross-examine the other defendants?

Mr. Joseph H. Purvis: Yes, sir, but there was nothing.

Unknown Speaker: But he did.

Mr. Joseph H. Purvis: He did do that, but there was nothing to show that there was anything antagonistic and in fact their alibi defenses were entirely compatible.

Justice Thurgood Marshall: I cannot reach at a conclusion as properly as you can because I do not know what information the defense counsel had and I submit, I do not think you do either, you do not know what he wanted to cross-examine all because he was never allowed to?

Mr. Joseph H. Purvis: No, sir, but this goes -- the State would contend again --

Justice Thurgood Marshall: Do you know what he wanted to cross-examine on?

Chief Justice Warren E. Burger: But we do now, do we not, after his representations?

Mr. Joseph H. Purvis: I think we do now Mr. Justice Marshall, and I think that had defense counsel made the disclosure of this nature at the motion hearing, the court would have known.

Justice Thurgood Marshall: And if he had been asked, he would have made it?

Mr. Joseph H. Purvis: Asked?

Justice Thurgood Marshall: The first time any judge asked him the reasons that Mr. Justice Rehnquist and he admitted he gave him the answer until he stood here and said any other judge would ask and he would oppose counsel.

Mr. Joseph H. Purvis: Yes sir, but we unfortunately are not blessed with the record of them hearing on the motion.

Justice Thurgood Marshall: But you are blessed with the record which says you cannot cross-exam?

Mr. Joseph H. Purvis: Yes, sir but --

Justice Thurgood Marshall: We are blessed with that.

Mr. Joseph H. Purvis: Yes, sir and ? but we would say that there is nothing in there to indicate that the judge or anyone knew of any reason why our cross-examination would --

Justice Thurgood Marshall: He was not interested.

The judge says well, what did he say now, as I remember the judge said you know you cannot go, that is all he said.

The judge did not give any reason to it, am I right?

Mr. Joseph H. Purvis: No, sir.

Justice Thurgood Marshall: The judge said you cannot cross-examine your own witness?

Mr. Joseph H. Purvis: He said, ?You cannot cross examine your own witness.?

That is correct.

Chief Justice Warren E. Burger: When he said that articulating the traditional rule about examining --

Mr. Joseph H. Purvis: I think that is what he was --

Chief Justice Warren E. Burger: His own witness --

Mr. Joseph H. Purvis: Referring to Your Honor because Arkansas had not adopted the uniform rules of evidence until July 01, 1976 which was approximately ten months after this trial.

Chief Justice Warren E. Burger: Does Arkansas and the state courts permit examination of a witness even when the witness has been called by counsel, if there is some representation of his being or her being a hostile witness?

Mr. Joseph H. Purvis: Yes, sir.

Chief Justice Warren E. Burger: It is the usual rule.

Mr. Joseph H. Purvis: Yes, sir.

Justice Thurgood Marshall: Well, did that apply here?

Mr. Joseph H. Purvis: There was --

Justice Thurgood Marshall: He says you cannot cross-examine.

Mr. Joseph H. Purvis: There was no --

Justice Thurgood Marshall: So he denied in the right, did he not?

Mr. Joseph H. Purvis: Yes, sir at the time of this trial, Arkansas was operating under the old traditional rules of evidence that unless you could show or have the court declare your witness to be a hostile witness, you were not entitled to cross-examine your own witness.

The court, it is our position, stood ready at all times to receive sufficient information to let it be able to declare him a hostile witness and to show that there was a conflict.

Justice Potter Stewart: Your brother's point is that he was charged with representing that defendant, that witness.

Mr. Joseph H. Purvis: Yes.

Justice Potter Stewart: And the last thing it would have been wholly inconsistent with his representation of that defendant for him to set out to cross examine him and show that he was a lier?

Mr. Joseph H. Purvis: Yes sir.

If that is what --

Justice Potter Stewart: So he was just putting in his claim as an impossible dilemma?

Mr. Joseph H. Purvis: There was --

Justice Potter Stewart: He was representing that defendant, he just was -- it would have been wholly inconsistent with his defense of that man to cross examine him and show that his testimony was untrue, would it not?

Mr. Joseph H. Purvis: Yes sir, but apparently --

Justice Potter Stewart: That was a dilemma that he points out to us.

Mr. Joseph H. Purvis: Apparently, we are not given and do not know and certainly cannot tell from the record, what line of defense, the defense would have taken.

Had there been separate counsel or had they even been allowed cross-examination?

There was nothing to show any --

Justice Potter Stewart: But his point is that not that it was not allowed, but that forced as he was to represent all three people, he could not conscientiously cross-examine any single one of them which would have been damaging to his own client?

Mr. Joseph H. Purvis: Yes sir, but I think in order to do that you have to make a presumption that there is a conflict which would necessitate or give benefit from the cross-examination and there was nothing in the record to note that such existed at that time.

Chief Justice Warren E. Burger: Does Arkansas traditionally follow the rule followed in many places that if the client testifies falsely then counsel, even his own counsel was not pursue that witness in anyway, is that accepted in Arkansas?

Mr. Joseph H. Purvis: I cannot answer that Your Honor.

I do not ? I believe that it is.

Chief Justice Warren E. Burger: But you do recognize that at that stage whatever flaws there may have been in the conduct of the defense counsel in not pressing the matter in the first instance, when he got into trial that he was presented with an extremely difficult set of alternatives, was he not?

Mr. Joseph H. Purvis: Yes sir.

Chief Justice Warren E. Burger: If he was going to try to help the man who was the lookout man at the head of the stairs and presumably that is the only man he was primarily concerned with.

Mr. Joseph H. Purvis: Of course then to under the Arkansas law the mere fact that he was at the head of the stairs instead of the actual rapist, would have had no baring on his guilt of the two crimes or the two charges actually three rapes because he was just as guilty as those who were --

Chief Justice Warren E. Burger: Well, that may be true as a matter of law, but a jury might have taken a different view for example and found that the lookout man guilty of lesser charges than finding assessed with the others, is that not so?

Mr. Joseph H. Purvis: That is true Your Honor, but here again we have the -- there is no indication that any of the defendants in this case had any or gave any inkling of ever choosing to confess and turn state's evidence or admit to any facet of this crime and the state would contend that were there some indicia in the record that one wish to do so.

Chief Justice Warren E. Burger: There are again when these three men had one common counsel, that counsel, the public defender was in pretty difficult position to go and negotiate with the prosecutor for a guilty plea on a lesser included offense for the man at the head of the stairs, is that not so?

Mr. Joseph H. Purvis: Yes sir, but there have been decisions from the various circuit courts that hold merely because the evidence is stronger as to one or merely because the defense counsel is precluded one particular line of questioning or defense that, that does not necessarily give rise to a conflict.

Chief Justice Warren E. Burger: Would you agree that the Arkansas Supreme Court did not explore these questions as extensively as they have been explored here this morning?

Mr. Joseph H. Purvis: Yes sir, and I think simply because the Arkansas Court did not have the information before it that this Court has.

Chief Justice Warren E. Burger: And did not have oral argument, is it not?

Mr. Joseph H. Purvis: No, sir they did not.

In Arkansas oral argument is not a matter of course.

It generally must be sought by the party who is the appellant or one of the two parties, they equally have the right to do so, but --

Unknown Speaker: Mr. Attorney General, I have understood you to say that none of these defendants confessed, but I thought Campbell did confess?

Mr. Joseph H. Purvis: No, sir I did not say that none confessed, but Mr. Campbell vehemently denied making the statement, committing the crime or ever having even been in the restaurant.

Unknown Speaker: But his confession was introduced in evidence?

Mr. Joseph H. Purvis: His oral statement, yes sir.

Unknown Speaker: Yes, and in that statement although he implicated the codefendants, their names were stricken, that is from the confession as introduced?

Mr. Joseph H. Purvis: That is true sir.

And then he took the stand and vehemently denied as he had done at the Denno hearing in previous room.

Chief Justice Warren E. Burger: Should he receive -- should it occur that he would receive a new trial now, I suppose some of them may have opened themselves to charges of perjury in their original trial?

Mr. Joseph H. Purvis: Presumably so sir.

Yes sir.

Chief Justice Warren E. Burger: At least it is a possibility?

Mr. Joseph H. Purvis: It is a possibility, but the charge of perjury is one that is rarely applied, or rarely tried in the State of Arkansas at any rate that not meaning to cast any doubt on the jury system or the system of the people in the State of Arkansas, but in the matter of such as this I think certainly they would be, if this court reversed I think certainly they would be retried for their crimes, but the state would once again contend that there really was no reversible error here because there was no conflict and if counsel might speak further as to the per se rule advocated by the Amicus and apparently by the defense counsel, state would reiterate that it whole heartedly opposes such because such a per se rule is premised on the idea or on the belief that there is conflict every time multiple defendants are represented by a sole counsel.

Justice Byron R. White: Well, that is not what the contention is as far as I can say.

He does not ask that there is any flat rule against multiple representation?

Mr. Joseph H. Purvis: I think in one of the Amicus Briefs --

Justice Byron R. White: Well, you said -- you said that, you attributed the same here to your colleague here.

Mr. Joseph H. Purvis: Yes sir.

Justice Byron R. White: I did not understand his submission in that way.

His submission is that, that if the attorney makes a representation that in his view and his professional judgment there is a conflict then there should be separate representation, that is not a per se rule.

Mr. Joseph H. Purvis: Well, the State would oppose that rule as well Your Honor, because I think in addition to the other summary, it certainly places in the hands solely, in other words it divest from the trial court the making of a constitutional decision and it removes the trial court or divests it from the supervising protectionary power that it exercises as to the defendants --

Justice Byron R. White: Do you think that trial judge should be entitled to require a counsel in supporting his judgment to reveal confidential information imparted to him by his client?

Mr. Joseph H. Purvis: Mr. Justice White I do not think that such confidence revelations are necessary in what a very, very few minuscule questions.

Justice Byron R. White: How about answering my question?

Mr. Joseph H. Purvis: And yes sir, I think if necessary a counsel strongly believes that there is a conflict and it would necessitate I think Disciplinary Rule 1-104 (C) (2), believe it is would allow for that for the revelation of confidences when so ordered by the court.

Justice Thurgood Marshall: Mr. Attorney General what is so wrong with an individual counsel?

Mr. Joseph H. Purvis: Oh! I see nothing that is wrong with it.

Justice Thurgood Marshall: But the way you keep arguing, you keep resisting it, it seems like it is some (Inaudible).

Mr. Joseph H. Purvis: No, sir I do not.

In fact I think certainly I know if I have --

Justice Thurgood Marshall: It is good.

Mr. Joseph H. Purvis: It is good, but by the same token I do not think that you have done anything wrong.

I do not think the constitution has been violated by the most representation until you can show some actual conflict and I would simply close by saying that the state's position as to what should be the rule as to the determination of conflict is outlined in the conclusionary part of our brief.

Are there any further questions?

Chief Justice Warren E. Burger: Apparently not.

Mr. Hall do you have anything further?

Rebuttal of Harold L. Hall

Mr. Harold L. Hall: No Your Honor.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Johnson v. Avery - Oral Argument

Thu, 23 Aug 2012 18:13:36 +0000

Case:

Johnson v. Avery

Media File:

40_19681114-argument.mp3

Related Transcript:

40_19681114-argument

Transcript:

Argument of Karl P. Warden

Chief Justice Earl Warren: Number 40, William Joe Johnson versus Areas Avery, Commissioner of Corrections.

Mr. Warden.

Mr. Karl P. Warden: Mr. Chief Justice and may it please the Court.

I'm counsel for William Joe Johnson who is a prisoner in the Tennessee State Penitentiary in Nashville, Tennessee.

As of the time of this argument today, William Joe Johnson has served approximately three years in solitary confinement or in maximum security or in a segregated environment within the penitentiary.

This confinement is over and above that confinement called for by his sentence, which is a life sentence for the crime of rape.

The reason for this extraordinary confinement is because he has violated one rule of the Tennessee State prison system is that rule is here being challenged today, and that rule is that no inmate will advice, assist, or otherwise contract to aid another either with or without a fee to prepare writs or other legal matters.

The United States District Court that first heard this case determined that his confinement was arbitrary and capricious and that it was in violation of Title 28 United States Code Annotated Section 2242 and it was in violation of the United States Constitution.

The Court of Appeals reversed the District Court.

Our argument here today seeks to have the United States Court of Appeals reversed to have further enforcement of this prison rule ended and to have William Joe Johnson return to the general prison population and these lib -- these unnecessary restraints on his liberties ended.

Now, the basis for our argument is five-fold.

The two major points that we wish to make are that, first off, the State of Tennessee, by enforcing this prison rule and by providing no alternative assistance, has effectively blocked access to the Courts by those prisoners who are indigent and inarticulate or illiterate, and that to so prevent these people from being heard as a violation of due process, a violation of equal protection, and a violation of the First Amendment Freedoms of Speech and right to protect, right to petition for redress of grievances.

And, our second principle point is that this prison regulation is not a proper exercise of the state's limited power to regulate the practice of law for two reasons.

One, this is not the practice of law and, two, that even if it should be considered the practice of law, it's beyond the power of the strait -- of the state to restrict this particular kind of practice.

Our further points are that Title 28 Section 2242 of the United States Code, annotated, reflects the ancient common law right of one layman to prepare, sign, and verify petitions of habeas corpus for those who cannot help themselves.

And, the final two points, are that the petitioner does have standing to raise these issues and that was the holding of both the District and the Court of Appeals and, finally, that this is a proper case and circumstance for Federal Courts to intervene with state prison management.

And, apparently, this has been agreed to by the State of Tennessee in its supplemental brief provided that the Court finds that these regulations are in violation of federal right.

Now, as to our first point, it's clear that a prisoner who can employ an attorney will be fully and well-heard by whatever Court he wishes to petition, but it's equally clear that if this prisoner is indigent, that he only has then four alternatives.

One of these is to be able to talk some lawyer into representing him for free.

The second is to proceed pro se, the third is to get help from someone untrained in law, and the fourth is just to forget about it all together and let his claim go by the Boards.

Now, as to the first of these alternatives, if he can talk a lawyer into taking a case, all of us who practice law know what happens to the attorney who agrees to help one indigent prisoner, he's immediately inundated with letters from not only that prison, but from every prison in the country requesting similar aid.

Justice Abe Fortas: Well, aren't there some states which provide legal services for prisoners?

It seems to me that -- was it California's brief, amicus, here?

Mr. Karl P. Warden: California has an amicus brief here, Your Honor.

I do not believe that California provides counsel for indigent prisoners.

Justice Abe Fortas: But some assistance?

Mr. Karl P. Warden: They provide the assistance of prison guards and chaplains, apparently, Your Honor.

Justice Abe Fortas: And the clerical stuff, do they -- don't they?

Mr. Karl P. Warden: They apparently, yes, sir.

Justice Potter Stewart: And, apparently, the Courts have cooperated by setting up these forms to be with check lists.

Mr. Karl P. Warden: Yes, Your Honor, although --

Justice Potter Stewart: Right.

Mr. Karl P. Warden: Although, I expect to argue a bit today that these forms are in fact not much better than the no assistance at all that the State of Tennessee provides.

Justice Potter Stewart: Who would might be?

Mr. Karl P. Warden: Your Honor, in the event that this attorney does receive these letters, what happens ultimately is that the claims -- the just claims and the unjust claims are like all going away splash kit.

Now, while we ought to applaud an attorney who is willing to help an occasional indigent prisoner.

We still cannot rely on causal or whimsical charity to preserve the constitutional guarantees of persons and fritz in the United States and it's not a sufficient answer here to say that prison authorities will help these people.

First off, there's no showing that these prison authorities, the guards, chaplains, clerical help, or any more competent to provide assistance that is a fellow inmate.

And, secondly, it's clear that the prisoner knows full well that the interest of his keeper and his own interests are not absolutely identical.

There is and there always will be a real credibility gap between the inmate and his keeper, and the prisoner is going to want someone he can turn to, someone he can talk to, someone he can trust, if not his lawyer, then his friend.

And, his friend is much more likely to be a fellow inmate than it is to be his keeper.

And, I think that millions and millions of dollars that the legal profession and the government has spent in the past few years trying to bridge the communication gap between the poor and the Courts, the legal profession, by moving law offices out in the neighborhoods and by allowing forms of lay intermediary assistance all show that this credibility gap here is a very real thing and ought to be recognized.

And, finally, on that point as on the side, if it is the practice of law for an inmate to help write petitions, why is it not the practice of law when it's done by a prison guard or a chaplain, as apparently is done in California?

The activities of --

Justice Potter Stewart: The difference, I suppose it's -- it doesn't go to your question, your rhetorical question, but the practice is, is it not, that people who indulge in the activities, in which your client was to indulge, actually charge their fellow inmates everything that's traffic or bare and, presumably, prison employees do not.

Mr. Karl P. Warden: Your Honor, there is not one shred of evidence in this case that my petitioner has charged anyone for his services.

I don't deny that prisoners could charge.

I would deny that it would be a proper thing to do, of course.

The activities of the petitioner here are attacked as being the practice of law and it's said that the state has the right to regulate the practice of law and that, since petitioner was practicing law, he can be properly stopped by the state prison authorities.

Well, we claim first that this is not the practice of law, that there was no claim here whatsoever to represent these prisoners in Court that there was no pursuit of these cases beyond the minimal help of helping them articulate what their claim was, that he did not stand and verify these petitions for the inmates, that he returned these petitions to the inmates and they signed them and verified them themselves even if they had to sign it with an “X” as happened in some instances.

Justice Abe Fortas: Suppose he set up an office in Nashville and held himself out to do precisely this.

Don't you think, by association, it'd be a kind of concern by whether that was a practice of law?

Mr. Karl P. Warden: Yes, sir.

I'm absolutely certain that the National Bar Association would be concerned.

They're a little bit fearful about me being up here today, as a matter of fact but --

Justice Byron R. White: Mr. Warden, the issue is now, as the -- what might certainly say on Section 2242.

Particularly, it's likely toward about somewhat -- actually, what we have is not -- does the issue before us have merits?

Mr. Karl P. Warden: Your Honor, I think that that's only one of the points before us today.

I think there's a very real question here of First Amendment guarantees and I think that goes beyond the question of -- raised directly by 2242.

I think that 22 --

Justice Byron R. White: What if we would say “well, perhaps, we can agree with this” as a matter of interpretation that was held in the District Court”?

Mr. Karl P. Warden: The District Court did that, yes, sir.

Your Honor, but they also found that this was an arbitrary and capricious act on the part of the federal prison authorities, which was a denial of -- as equal protection to those persons who could not articulate their own claim.

Justice Byron R. White: And the next is we have to reach the constitutional claim?

Mr. Karl P. Warden: No, Your Honor, I don't think you would have to reach the constitutional claim.

But, of course, we had to raise the constitutional claim because that's one facet to our argument.

I don't' think you have to reach that in order to decide this case but, if I may say so, sir, I think you ought to.

Justice Byron R. White: Well, you'd have to reach it in the -- they'd have to reach it if we didn't agree with the 2242.

Mr. Karl P. Warden: Yes, sir, you certainly would, in order to adopt our view of the case.

Justice Byron R. White: Mr. Warden, this came up in the form -- well, whatever the form that took position, this has been treated all along as to the petition for habeas?

Mr. Karl P. Warden: Yes, sir, it has.

Yes, sir.

Justice Byron R. White: Is he a state prisoner?

Mr. Karl P. Warden: He's a state prisoner, Your Honor.

Justice Byron R. White: That's how he gets 2242 into this.

Mr. Karl P. Warden: I suppose so, Your Honor.

All William Joe Johnson has done in this case is to help these men articulate those things that they would have said for themselves if they had been able to say them for him -- themselves.

Justice Byron R. White: It's the crux of the argument.

Mr. Karl P. Warden: Sir?

Justice Byron R. White: Those standings, that, I gather, reads that --

Mr. Karl P. Warden: Sir --

Justice Byron R. White: The counsel had standing.

Mr. Karl P. Warden: Sir, both the Federal District Court and the Court of Appeals agreed that he had standing.

Justice Byron R. White: That's not challenged here.

Mr. Karl P. Warden: It's raised in the California amicus brief.

It was not raised by the State of Tennessee.

Justice Byron R. White: Why doesn't he understand it?

Why can you --

Mr. Karl P. Warden: Yes, Your Honor, I will try to.

Over and above the question of whether the two lower Courts agreed that he had standing, he's in solitary confinement now for the violation of this rule and this rule is the one we're here challenging today, and in order to challenge this rule today we have to show why it is in violation of the constitutional rights of these indigent illiterate prisoners.

Justice Byron R. White: How long have you been estoppel?

Mr. Karl P. Warden: For almost three years.

Justice Potter Stewart: That's not -- is that contiguously or abound?

Mr. Karl P. Warden: He was turned loose at the end of the time that the District Court decided this case, Your Honor, and I'm going outside of the record, he was put in the day that the Court of Appeals decision came down.

Now, there were breaks in this total three-year period because he would promise he wouldn't do it anymore, and they'd turn him loose and he'd do it again.

Justice Potter Stewart: That's what I understood from the brief.

Mr. Karl P. Warden: Yes, sir.

He wasn't very trustworthy about that sort of thing.

Justice Potter Stewart: He was persistent in asserting his claimed rights, I guess.

Justice John M. Harlan: Is he responding to you?

Mr. Karl P. Warden: This man comes closer, Your Honor, to being a modern day Don Quixote than anyone I ever heard of.

It seems to me that we have never doubted the common law right of one layman to petitioner or another layman when the one that's being held captive could not speak for himself and when the one who's doing the petitioning is not an officious intermeddler.

At most, William Joe Johnson here was a lay intermediary.

All he ever did was call the Court's attention to these men.

He did not solicit this.

He did not charge.

He did not benefit in any way, except the satisfaction that one human being gets from helping another.

But, even if this Court should find that his activity was the practice of law, and we vigorously maintain it was not, still the state's power to regulate stopped short of the power to restrict unsophisticated persons from seeking legal redress in the Courts with their claimed unlawful imprisonment.

Both Federal and State law provide a route by which an imprisoned person can petition for a release from imprisonment.

But, by effectively denying to an identifiable class of persons the right to use this law here by making the route impossible for the indigent, inarticulate, and illiterate, this post conviction remedy becomes illusory.

This is not just a deprivation of First Amendment rights, but it's also then a denial of equal protection of the laws.

Justice Potter Stewart: I suppose there are, at least have been or may be, in the penitentiaries in Tennessee lawyers --

Mr. Karl P. Warden: Yes, Your Honor.

Justice Potter Stewart: Graduate lawyers.

Mr. Karl P. Warden: Yes, Your Honor, unfortunately, that's true.

Justice Potter Stewart: This rule would also prevent them -- of course I also would presume they have been or will be disbarred because of their conviction if it's for an infamous crime.

This rule would not allow them either to --

Mr. Karl P. Warden: That's correct, Your Honor.

Justice Potter Stewart: Use their particular expertise.

Mr. Karl P. Warden: No inmate would be allowed to, and the rules --

Justice William O. Douglas: How about that Arizona case the Court decided last term where the layman was seeking to represent an indigent?

Mr. Karl P. Warden: Yes, Your Honor.

Justice William O. Douglas: He wasn't imprisoned.

Mr. Karl P. Warden: Yes, Your Honor.

I think that the rationale of that case would be entirely appropriate here, although this man was operating outside of an environment where there was a rule that prohibited any help at all, and that's exactly what this rule does.

This rule does not cut off help just for illegitimate claims.

It cuts off help for all claims, and that's the only way it can be viewed because these people can't read, they can't write, and the Tennessee statistics --

Justice William O. Douglas: Well, that was true of this defendant in this Arizona case.

Mr. Karl P. Warden: Yes, it was, Your Honor, except that it's my understanding that the man who filed the petition for him was not a fellow inmate but was someone on the outside.

Justice William O. Douglas: Well, they're both on the outside but the problems, I would think, would be the same of illiteracy, indigence.

Mr. Karl P. Warden: Yes, Your Honor, I think it would be.

Justice William J. Brennan: You don't cite this Arizona case.

Mr. Karl P. Warden: No, I do not, Your Honor.

Justice William J. Brennan: Well, I suppose there would be element of discipline as a consideration here that it would not have been in the Arizona case.

Mr. Karl P. Warden: Your Honor, I think there is an interest of the state here in the fashion and how you described it in preserving order in the penitentiary, but I would say this, if I may.

I think we must always distinguish between desires and interests.

And, I'm sure that the prison authorities desire that they have a prison full of docile unthinking prisoners who don't cause any trouble.

Now, I would like for my children back here and my students back here not to cause me any trouble and to do just exactly what I tell them to do.

But, in the long run, that would not be in my interest and it would not be in their interest, and it would not be in the interest of the society where they live.

So, I think we must distinguish these things.

Justice Thurgood Marshall: Isn't it also true that this is not a question of regulating?

It's a question of prohibiting?

Mr. Karl P. Warden: It's a question of absolutely prohibiting, Your Honor.

Justice Thurgood Marshall: Right, it's not a question of regulating in the power.

Mr. Karl P. Warden: If it were, Your Honor, if the State of Tennessee had provided some reasonable alternatives whereby these people that I think are being discriminated against could have had access to the Court in a realistic fashion, then we would not have perhaps had to have this case today.

Justice Byron R. White: Well, that's the point.

I suppose you could very well make a case or, as an arguable case for somebody to -- for the prisoner to have the right to have some help from some competent source without being forced to, or logically hold that a fellow inmate has a constitutional right to furnish it.

I suppose you're up here claiming some right on your client's part.

Mr. Karl P. Warden: My client's right derives, Your Honor, from these other people.

It's some --

Justice Byron R. White: Solely?

Mr. Karl P. Warden: No, he's also in the solitary confinement and he's got to de --

Justice Byron R. White: Well, I understand that.

There certainly is a legitimate dispute between him and the state.

Mr. Karl P. Warden: Yes, sir.

Justice Byron R. White: But, is he claiming some constitutional right himself to represent his fellow prisoners?

Mr. Karl P. Warden: He claims only this, Your Honor, that the state has not provided an acceptable alternative to his providing help for them, and that he's being punished for doing that which the state is prohibiting.

Justice Byron R. White: Well, what would you say if he -- if the evidence were that he not only represented prisoners, but he constantly collected money from them for it, and the rule of prison was you may help other prisoners but you may not collect money, and if you do, you'll go to solitary confinement?

Mr. Karl P. Warden: Your Honor, then I think he will be in solitary confinement for having collecting money.

Justice Byron R. White: Even though there was quite a dispute between him and the --

Mr. Karl P. Warden: Well, sir, if I understand your question, then my answer is that they would have to have an absolute right to put him in solitary confinement for taking money.

There's no question in my mind about that.

But, I may as well add this to it too, that even if this Court should find that there is some right to counsel at this critical stage in the post conviction proceeding here, I think there might still be a constitutional question as to whether one prison inmate could turn to a fellow inmate and say you reckon ought to go to a lawyer.

Justice Byron R. White: Well --

Mr. Karl P. Warden: And if that's sanction, then I think we're strictly on First Amendment rights at that point and this rule would prohibit that.

Justice Byron R. White: Well, I understand that but, of course, that isn't what -- he did more than advice going to a lawyer.

Mr. Karl P. Warden: Yes, sir, he did.

He wrote out these petitions by hand.

Justice Byron R. White: Yes, and that's why -- so, you can say as well if that's what the state was preventing him from doing.

Mr. Karl P. Warden: The state here has claimed a number of interests.One in prohibiting the unauthorized practice of law, one in keeping good order in the penitentiaries and I've spoken of that but I'd like to add this one thing.

There was no showing in this case, and there can't be any showing, that there -- that the fact that one prisoner helps another prisoner articulate his claim to a Court necessarily is going to create great disorder in a prison system.

In fact, I think it could be argued that these people who were in the penitentiary who are inarticulate, illiterate, indigent, who have no way to express these claims might very well be a greater source of disruption of the prison discipline than one that was allowed to go ahead and have his case heard by a Court.

Justice John M. Harlan: Do you happen to know, sir, whether it's your regulation in Tennessee or typical rights?

Mr. Karl P. Warden: Your Honor, I am of the opinion and impression, I should say, that it is a fairly common prison regulation.

I think California has it with the little variants of the form.

When I was in Utah recently, I saw something in paper out there that said they have it.

I think New York has it.

There are a number of jurisdictions that have it.

I can't tell you how many they are.

The state has also claimed an interest here which the prison authorities say fall on their side of the scale of balancing the interest and that is in keeping the Court dockets from being clogged.

What this rule prohibits was fine in equal impartiality, the legitimate claim, along with the illegitimate claim, and there certainly can't be any kind of a showing that a legitimate claim filed by an inmate who had inmate assistance clogs the Court any more than a legitimate claim filed by an inmate who has a lawyer to help him or by an inmate acting pro se.

And, this rule prohibits all of them, the legitimate claims and the illegitimate claims.

Under the very narrow view, I think narrow, of the State of Tennessee and the State of California, the presumed state interest here in prohibiting the unauthorized practice of law seems to be served in whole part by allowing people to appear either pro se or with attorneys, and this ignores completely the indigent and illiterate incompetent who can neither act effectively nor can they afford an attorney.

The statistics that are provided by the State of Tennessee show that 44% of the people in the Tennessee State Penitentiary are of below average intelligence and 22% of the people in the Tennessee State Penitentiary are of defected mentalities.

Now, these people might be able to scratch our something on a piece of paper, a lot of them can't even do that, but it just does not seem realistic to me to say that they can act effectively pro se, that they can call their claim to the attention of the Court or a lawyer in such a fashion that that claim would be understood.

And these people are the ones being discriminated against.

The State of Tennessee has provided no alternative means for these people.

The State of California has provided a series of forms that these people might use and fill out, but the central question on those forms that these people are to fill out for themselves is really the central question that must be answered in Tennessee, and that is that this inmate must be able to articulate why it was that he has been deprived of his constitutional right, just a simple statement of the deprivation of constitutional rights.

Well, I found it a bit difficult to pen a simple statement of a detriment of constitutional rights and I've had the benefit of a legal education, and these people matriculated in the streets and I don't believe it's taught there.

Mr. Chief Justice, I have asked to preserve a few moments of my time.

Chief Justice Earl Warren: You may most certainly.

Chief Justice Earl Warren: Mr. Fox.

Argument of Thomas E. Fox

Mr. Thomas E. Fox: Mr. Chief Justice and may it please the Court.

On the question of federal statute, I have said in my supplemental brief that I really don't think that that's a serious question because, there, the statute says that application for writ of habeas corpus shall be in writing, signed and verified by the person for whose relief it is intended or for someone acting in his behalf.

I don't think that goes any further than the ministerial act of signing or verifying a petition to be filed.

I don't think that contemplated the preparation of petition.

So, I don't believe that that statute can be relied upon as was done by the trial judge, the district judge.

The Court of Appeals thought to the contrary and I think, certainly, that that's too broad an interpretation for that statute.

Now, on the question whether or not this is a practice of law, I don't think that answers the question because, certainly, the State of Tennessee can't regulate the practice of law in such a way as to deny prison inmates aaccess to the Court.

So, I think this is a different situation really from what it is on the outside.

I've tried to think, well, here are inarticulate people.

You have people who can't write their names. You have the same type of people on the outside.

So, why wouldn't the same rule apply?

Well, the only difference I could see, and I think this is favorable to the people inside the penitentiary.

They really have more calls, I think, the petition of course than the people do on the outside and I think that might -- that's justification for it.

So, I think, certainly, that any rule that the State of Tennessee has that would tend to deny these people access to the Court, we don't contest that.

We know that that would be in violation of a constitutional right.

Justice John M. Harlan: What would you do if the prisoner asked for a lawyer?

Mr. Thomas E. Fox: If the Court please, under the present procedure, since the adoption of our Post Conviction Procedure Act which was adopted after this case was started but before it was decided by the US Circuit Court of Appeals in Cincinnati, we provide a form in the statute for the -- making a petition.

Then, in one of those sections, we provide that no petition will be dismissed until an op -- free opportunity has been given to freely amended with the assistance of counsel.

So, I say, that any man that can say my rights have been -- are being denied and signs his name to it and gets in Federal Court or in our State Courts is that broad.

Counsel will be appointed for him under the statute and that counsel will be given opportunity to amend it freely.

Then, if it can't be amended so as to make out justification or allege a cause of action, then it can be dismissed.

Justice John M. Harlan: What happened if the prisoner can't say that?

Mr. Thomas E. Fox: If the Court please, I --

Justice John M. Harlan: This regulation will reach its existence if a fellow prisoner will help that man?

Mr. Thomas E. Fox: If the Court please, the regulation may be a little broad and it may be susceptible to the construction that my worthy opponent has given it, that is to aid or assist, but I think those words used in context means to act in the capacity of giving legal advice not in helping a man to write out a small or a statement and makes -- make his mark or sign his name to it.

I don't think that it should be given that broad interpretation or construction.

I agree that it's possible and I have learned that in a statute, in a regulation that I have ever experienced with, if the Court determined to give it a non-constitutional construction, it can be done.

I think that, I don't believe there's any question about that.

So, I -- but, I don't think a fair construction would go that far with this one.

Justice Thurgood Marshall: Mr. Fox, what is the interest of the State of Tennessee in keeping this man in solitary confinement for three years?

Mr. Thomas E. Fox: If the Court please, this is talking about his punishment, but it's also a preventive measure.

The man said and his counsel said --

Justice Thurgood Marshall: But what is so bad about what he's doing?

Mr. Thomas E. Fox: Well, every -- I think, from the cases I've read, there's not much evidence in the record on it but the f -- the Director of Federal Bureau of Prisons instructed the wardens at the federal prisons to provide a writ writers' room and allow people -- and the purpose of it was to prevent the writ writers from having prisoners write petitions.

Now, I find, for meeting the cases that most of the Courts -- most of the State Courts in the 50 jurisdictions have had similar rules.

Now, here's what they say about it.

This is what was said about them in one Federal Court.

Most laymen like the ability and it would be hardly necessary to include a special provision of law to authorize the employment of trained legal assistance in preparing papers.

If the Court please, that's not the -- it just says that it permits the more aggressive type to take advantage of the other prisoners who are not quite so aggressive.

It says that in some of the cases, I believe that is Hatfield versus Bailleaux from the Ninth Circuit, it just says that even though it said that no co -- that no charge is made, that it's almost impossible to find a case where a charge is not made, that it might be required in candy, it might be required --

Justice Thurgood Marshall: Is there any evidence in this record?

Mr. Thomas E. Fox: No, sir.

There's no evide --

Justice Thurgood Marshall: Well, let's stay with this record.

Mr. Thomas E. Fox: No, sir.

No evidence in this record to that effect and, so, we insist if it gets back to that then the decree of the District Court is wrong because there's no evidence either way on those questions, but --

Chief Justice Earl Warren: Mr. Fox, let us take the case of a man who is indigent in your --

Mr. Thomas E. Fox: Yes.

Chief Justice Earl Warren: In your penitentiary at Tennessee.

Mr. Thomas E. Fox: Yes, sir.

Chief Justice Earl Warren: And, I suppose there are many of them.

Mr. Thomas E. Fox: Yes, sir.

I'm sure that's right.

Chief Justice Earl Warren: Let us assume that he is also illiterate, and I'm sure they have many of those, have they not?

Mr. Thomas E. Fox: Yes, sir.

Chief Justice Earl Warren: And suppose he has a good cause for relief.

How, under your regulation and the practice in your state, can he get relief?

Mr. Thomas E. Fox: If the Court please, I think this.

Now, the regulation provides aid or assist.

I don't say that that goes to the ministerial functions.

I think that if I, in that position, had a cause of action, I don't know why I couldn't state somebody -- asked somebody to write it for me and they'd perform nothing more than the ministerial act of writing what I say and then allow me to make my mark.

I don't believe that that regulation ought to be construed broadly enough or inclusive enough to eliminate that type of situation.

Chief Justice Earl Warren: But, it has been, hasn't it?

Mr. Thomas E. Fox: No, sir.

I don't believe that it has today, as I don't know it, unless Judge Miller, the district judge, put that count -- construction on it, and I don't think that -- I think if he did that that it really wasn't necessary because, as I said before, I think we'll have to construe all regulations and statutes in accordance with its context or its environment and keep in mind the thing that was attempted to be permitted.

Here's the problem.

Chief Justice Earl Warren: But tell me how far you think that a man such as I suggested could go under your regulation.

Mr. Thomas E. Fox: I think when it gets beyond a ministerial act, and I mean by ministerial --

Chief Justice Earl Warren: Now, a ministerial act --

Mr. Thomas E. Fox: Yes, sir.

Chief Justice Earl Warren: Do you mean in -- what can he do -- actually do?

Mr. Thomas E. Fox: Yes, sir.

Well, under the statute, certainly, another inmate could sign it for the prisoner and he could verify it.

Chief Justice Earl Warren: But signed by --

Mr. Thomas E. Fox: Under the federal statute, I'm speaking of.

Chief Justice Earl Warren: Yes.

Mr. Thomas E. Fox: And we don't deny that that -- that he has that right.

The federal statute gives him that right.

Chief Justice Earl Warren: Yes.

Mr. Thomas E. Fox: And we -- that was in existence when our regulation was made and I know that nobody in my state would intend to contradict or ignore or be in conflict with federal law because we understand that.

Chief Justice Earl Warren: Alright, he can sign it and verify it.

Mr. Thomas E. Fox: Yes.

Chief Justice Earl Warren: Now, what else could he do?

Mr. Thomas E. Fox: Well, I would think that if he could -- he might, even if the man told him what to write, he could write it.

Now --

Chief Justice Earl Warren: He could what?

Mr. Thomas E. Fox: If the prisoner told the other prisoner what he wanted written, I think he could do that.

I think the regulation is subject to that type of construction, but here is the problem and I'm not sure there's enough evidence in this record to show what takes place, but it was observed in this Hatfield versus Bailleaux.

The Court said “we observe from the 2,255 cases that have been -- come before this Court that the penalties of perjury do not deter the writ writer from writing whatever they want to,” and that's the kind of thing that our regulation was designed to get rid of.

This is outside the record but the Court might know that, usually, those petitions are about that thick.

They cite -- they're not limited to what --

Justice Byron R. White: You don't think we're familiar with it?

Mr. Thomas E. Fox: I don't know whether it has been up here or not.

You have no report opinions on it, if the Court please.

That's as much as I know.

At least I could find no report opinion dealing with those things so maybe the petitions haven't gotten up to here.

Justice Fortas: Well, if you think that that's a novel experience in this Court --

Mr. Thomas E. Fox: Yes, sir.

Well, I --

Justice Fortas: Of course, take it.

Mr. Thomas E. Fox: Fine, if the Court knows about those things then that's what we're trying to eliminate.Wouldn't I assume that Judge Miller right there in Nashville gets quite a few of them

Mr. Thomas E. Fox: Yes, sir, he does.

Justice Thurgood Marshall: Yet, he said that the regulation was bad.

Mr. Thomas E. Fox: Yes, sir, he did that.

Justice Thurgood Marshall: He's the one who's suffering the most, isn't he?

Mr. Thomas E. Fox: Yes, sir.

Justice Thurgood Marshall: Isn't he the one who's suffering the most?

Mr. Thomas E. Fox: He suffers a lot, but -- I don't -- I think though that judges suffer just as much.

Justice Thurgood Marshall: Didn't he -- didn't his ruling say, in so much, that he didn't need your help?

Mr. Thomas E. Fox: Judge Miller?

Justice Thurgood Marshall: Yes.

Mr. Thomas E. Fox: If the Court please, I don't remember that in his decision.

Justice Thurgood Marshall: No, I mean he said he didn't need that regulation.

Because he knows it was bad, didn't he?

Mr. Thomas E. Fox: Yes, sir, but we are here because we say Judge Miller was wrong in because the Court of Appeals in Cincinnati said he was wrong.

Now, Judge Miller might be right, but we're here because we insist that he was wrong and the Court of Appeals in Cincinnati put it on the basis more so on the practice of law.

I don't really accept that theory because the Court said it, but I don't think that quite gets to it because, as I said earlier, it's -- it seems to me like there's no question about what is practice of law but you can't regulate -- the state can't regulate the practice of law in such a way as to prevent people to come to Court.

I understand that.

Justice Abe Fortas: Mr. Fox, I understand --

Chief Justice Earl Warren: Well, from your answer to me, are we entitled to assume that because of these 2,200 cases that you get in your Courts that the main purpose of this regulation is to relieve the Courts of a difficult burden?

Mr. Thomas E. Fox: One, that's one reason.

The other is that all the prison officials, state and federal, that I've read about, and I think the cases that I've read are nearly enough to include all of them, they say it underlines prison discipline and morale that's impossible to repatriate or rehabilitate prisoners after they come on the influence of an -- of a writ writer who is unscrupulous, who is not deterred by the penalties of perjury, who uses the people for his own purposes rather than for the purposes that the penitentiary designed for, I take it, to reform people to themselves, and that rehabilitation is impossible once the writ writers get control of the members of the prison.

Here's what I look for them to go and this is what one of the Courts had to say about Hatfield versus Bailleaux.

Prison officials testified that if permitted to engage in such practices, aggressive inmates of superior intelligence exploit and dominate weaker prisoners of inferior intelligence.

The practice also tends to develop a group of inmate leaders which is discourage in all institutions.

Chief Justice Earl Warren: Where are you reading from?

Mr. Thomas E. Fox: I'm -- I'm reading from Hatfield versus Bailleaux.

That's a Ninth Circuit case, if the Court please.

I also got that 2,255 cases from that same case, the Ninth Circuit case, but --

Justice Abe Fortas: Mr. Fox, do you still argue that there's no standing here?

Mr. Thomas E. Fox: No, sir.

If -- insofar as the man's right to petition to be released from solitary confinement.

I think it has standing, yes, sir.

I don't -- I have not --

Justice Abe Fortas: But if we -- but, this case seems to me, at least arguably, to be in a rather peculiar posture because I -- if we should vindicate the right of an inmate to consult with a fellow inmate for the first inmate's benefit, that's one thing but, here, what we're asked to do really, as I understand it, is to hold that an inmate has the right as a matter of regular practice, isn't that so, to help other inmates in preparing petitions for post conviction relief?

Mr. Thomas E. Fox: Yes, sir, they --

Justice Abe Fortas: It's a little puzzling as to whether it's a question of standing or something else, but I was just wondering whether that really is indifferent from the kind of case -- another case we have on petition for certiorari in this Court, I've forgotten the jurisdiction, in which an inmate himself applies for relief because prison authorities won't let him consult with other inmates and provides no alternative.

Mr. Thomas E. Fox: Yes, sir.

Justice Abe Fortas: Petitioner here is, if I correctly understand this, is asking us not only to release him from what, off-hand, seems to be a very onerous treatment by the Tennessee prison authorities, but he also asks us to establish his right to engage in the practice of furnishing this kind of advice and assistance to other inmates.

Do I correctly follow as this --

Mr. Thomas E. Fox: Yes, sir.

It's insisted upon by opposing counsel that he has -- that the writ writer has that right because the inmate who has the cause has that right.

He cited authority for it.

I thought -- I didn't think that sounded too unreasonable, so I didn't question that.

It provided, it's found that it's necessary -- that this kind of help is necessary for prisoners.

Justice Abe Fortas: You didn't think that “what is too unreasonable”?

Mr. Thomas E. Fox: For it to say that, that one per -- inmate had a right to assist another inmate who was absolutely without -- who was in need of his help beyond question, no question about his need, it'd be unreasonable to assume that or to find that the other -- the inmate who did know how to assert his right, that he could go to another person and have that person to assert it.

I think that, if I understand properly, they -- because of free speech they insist they have a right to be at the place together and use it and to disseminate it.

I hear that argument in -- about the right of the press in the Court to take pictures and things of that sort.

They say the public has the right to know and that because that we have a right to get that information and give it to the public.

I thought that was a similar sort of analogous thing and say the least of it, and I didn't contest it, maybe I should have.

Justice Potter Stewart: That is the standing point.

Mr. Thomas E. Fox: Yes, sir, the standing point.

Justice Potter Stewart: You're addressing yourself to.

Justice Byron R. White: From the standing of the petitioner to assert somebody else to write this.

Mr. Thomas E. Fox: Yes, sir.

I didn't contest that.

I just --

Justice John M. Harlan: Your adversary suggested that, at least in part and perhaps almost entirely, this petitioner's rights are derivative of somebody else's.

Mr. Thomas E. Fox: Yes, sir.

I didn't contest that, assuming that it was not objectionable on the grounds of prison discipline and order and rehabilitation of prisoners.

Justice Byron R. White: Well, actually, we held, I know it's a little different, but in the Button case, didn't we, that that organization, NAACP, could assert the rights of others who did not want themselves be litigants and --

Mr. Thomas E. Fox: Yes, sir.

Justice Byron R. White: In Courts and we laid it on First Amendment grounds.

Of course, we didn't say they could do the -- assert those rights of others through non-lawyers in Court.

Mr. Thomas E. Fox: No, sir.

Justice Byron R. White: Now, we did say that of course, there, we didn't have any non-lawyer problem.

We had lawyers.

Mr. Thomas E. Fox: I believe that that's --

Justice Byron R. White: That sort of bears on this, doesn't it?

Mr. Thomas E. Fox: Yes, I think that's a case that was cited in opposing counsel's brief --

Justice Byron R. White: Yes.

Mr. Thomas E. Fox: For that part, but --

Justice Byron R. White: But, part of the rationale of that case, as I understand, wasn't the great unlikelihood that their rights would ever be asserted otherwise.

Mr. Thomas E. Fox: Yes, sir.

Justice Byron R. White: Except through these --

Mr. Thomas E. Fox: That's right.

Well, we think now -- I noticed in stating the questions, I've stated a little bit differently from Mr. Fortas' question.

He says the right -- he's talking about the right of inmates to help others when there's no other aid available.

I just stated it broadly on the question of one inmate having a right to aid another.

If he insist now that it is not necessary and he doesn't have that right when there's other aid available, our position is that our post conviction statute now makes it awfully easy for any person to get into Court, either Federal or State Court, with his petition because he gets his petition up there and it's not to be dismissed until an opportunity is given to free the amended with the aid of counsel.

So then, he gets legal help.

One other question now about the type of punishment that was imposed upon the writ writer, I think that it seized to be punishment and it became a necessary measure for this -- for prison discipline or for the security of the prison.

This man said, and his counsel said it at the hearing in the Federal District Court, that he expected to continue to write writs without regard to what the regulations were or without regard to anything else, except when another means was provided.

So, in order to stop him not as a matter of punishment, he's got to be segregated or the prison officials have got to spend their time surveilling the other prisoners to see that they don't get his help.

So, it seems to me, like it's a lot easier and a lot more justifiable to put this man in prison and then spend the remainder of the ti -- or then you -- the officials have got more time to spend with the other prisoners, given them the help they need.

Justice Abe Fortas: Put him in solitary confinement?

Mr. Thomas E. Fox: Segregate him from the other prisoners, if the Court please.

Justice Abe Fortas: Well, that means solitary confinement, doesn't it?

Mr. Thomas E. Fox: I think that means solitary confinement, yes, sir.

But, anytime he decided that he wouldn't write anymore, he'd be released.

Justice Abe Fortas: Well, there are lots of penalties involved in the unauthorized practice of law, but that's kind of a new one, isn't it?

Mr. Thomas E. Fox: Yes, sir, but this is a new situation in the prison.

This is different.

I think you have to consider the practice of law in this situation different from any other situation of any -- I couldn't find a case that dealt with and on these circumstances.

So, I think it's a peculiar case and --

Justice Thurgood Marshall: Would this --

Mr. Thomas E. Fox: Requires a peculiar remedy.

Justice Thurgood Marshall: Would this rule apply to a lawyer?

Mr. Thomas E. Fox: I think so, yes, sir.

I don't know that I fully understand the question, if there was a lawyer in prison --

Justice Thurgood Marshall: Well, just assuming against fact that there might be a lawyer in the penitentiary in Tennessee.

Mr. Thomas E. Fox: Yes, sir.

Justice Thurgood Marshall: This rule would apply to him.

Mr. Thomas E. Fox: Yes, sir, I think so.

I think it applies to everybody there.

Justice Thurgood Marshall: Wouldn't that be “a little silly”?

Mr. Thomas E. Fox: Well, if the Court please, I don't know.

If a lawyer has committed a felony and his in the penitentiary, he has proven he's untrustworthy, that he can't be depended upon, I don't -- and he's not a man of good character, so I don't -- that's one of the requirements for practicing law.

Justice Thurgood Marshall: Well, then you're actually protecting the inmates from him.

Mr. Thomas E. Fox: Yes, sir.

Justice Thurgood Marshall: Even though the inmates want him?

Mr. Thomas E. Fox: Yes, sir, but I think that man --

Justice John M. Harlan: Do you have automatic disbarment in Tennessee for conviction of a Bar member?

Mr. Thomas E. Fox: Yes, sir, I think so.

I think that's generally the rule.

I'm not really familiar with it, but I do know that, to be admitted, you have to show evidence of good character and, it seems to me, once you're put in the penitentiary you don't -- there's no longer -- the presumption has gone to say the least of it, that you -- not a man of good character.

So --

Justice William O. Douglas: Do you have a public defendant?

Mr. Thomas E. Fox: Sir?

Justice William O. Douglas: Do you have a public defendant?

Mr. Thomas E. Fox: Yes, we do in Nashville, in Davidson County, we do --

Justice William O. Douglas: Where is this --

Mr. Thomas E. Fox: In Memphis.

Justice William O. Douglas: Prison?

In Memphis?

Mr. Thomas E. Fox: No, sir.

This -- there are three prisons.

One is in Nashville.

The other one is between Nashville and Memphis.

And then, one in East Tennessee.

Justice William O. Douglas: Defendant -- public defendant in that county?

Mr. Thomas E. Fox: No, sir.

I've heard this though, off the record, that --

Justice William O. Douglas: Why you couldn't have the hours in that public defendant to see him, if you have one.

Mr. Thomas E. Fox: Yes, sir.

I understand that some of Mr. Warden's students, you can correct me on this, it was arranged for them to go in and hear the complaints and write the petitions for the people who were entitled to them, and they heard the complaints and they didn't come up with any petitions.

So, the next time they went out there, nobody came to see them.

They didn't have any qualms, and that's the sort of thing that we're trying to eliminate, are these petitions that one of the Courts, and I think it's in my brief, said that the petitions were stereotype.

I take it they meant that each petition had the same thing as all the others in it, and I -- it's evident that that's what happened.

These writ writers, everything that they know about the law they'd put it in the writ whether it's applicable to this particular inmate or to s -- or not.

Then, the Court had --

Justice Abe Fortas: Well, this petitioner wasn't put in solitary confinement because he wasn't practicing law well, was he?

Mr. Thomas E. Fox: No, sir, I would say this though.

If he had limited his petitions to the cases that a lawyer would advice the petitioner conscientiously, that there'd never been this kind of rule, you never had any petition to have had because most of -- most the petitions, as indicated by the Bailleaux case, Hatfield versus Bailleaux, are absolutely that many, 22 --

Justice John M. Harlan: Does this gentleman have a monopoly business or are there other writ writers they could call?

Mr. Thomas E. Fox: I understand there are others, if the Court please, but I don't -- I think this must be that maybe the others, when they started solitary confinement, agreed to stop and did stop their practices.

This is home on it.

Just as far as I know, it's persistent.

Justice John M. Harlan: The volume of writs this man --

Mr. Thomas E. Fox: Sorry?

Justice John M. Harlan: Does the record show the volume, the number of writs this man had there?

Mr. Thomas E. Fox: No, sir.

It shows he's filed several for himself and several for other people.

He filed one for himself with, I believe the record shows, with 45 pages in it.

He is free to do that.

Justice William J. Brennan: I just -- I'd be surprised if all 14 of them weren't identical.

They usually are.

Mr. Thomas E. Fox: Yes, sir.

They put on that -- they put it all in.

There's no question about it.

They were all that I know they ever made to get him --

Justice William J. Brennan: I don't think the ones we get here differ from those that know --

Mr. Thomas E. Fox: I'm sure they're the same thing, yes, sir.

I just didn't know they've gotten up here.

Justice William J. Brennan: Oh, they had it, by the thousands.

Mr. Thomas E. Fox: Sorry.

Justice William J. Brennan: Alright.

Mr. Thomas E. Fox: Thank you.

Chief Justice Earl Warren: Mr. Warden, you have a few moments.

Rebuttal of Karl P. Warden

Mr. Karl P. Warden: Mr. Chief Justice, unless the Court has further questions for me, I have nothing further to add.

Chief Justice Earl Warren: Thank you, Mr. Warden.

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