# Green v. United States (365 U.S. 301)/Dissent Black

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* Case Syllabus
* Opinion of the Court
* Concurring Opinion Stewart
* Dissenting Opinion Black
United States Supreme Court
365 U.S. 301
Green v. United States (365 U.S. 301)
Argued: Jan. 10, 1961. --- Decided: Feb 27, 1961
Mr. Justice BLACK, with whom THE CHIEF JUSTICE, Mr. Justice DOUGLAS and Mr. Justice BRENNAN concur, dissenting.
I agree that Federal Criminal Rule 32(a) makes it mandatory for a federal judge before imposing sentence to afford every convicted defendant an opportunity to make, in person and not merely through counsel, a statement in his own behalf presenting any information he wishes in mitigation of punishment and that failure to afford this opportunity to the defendant personally makes a sentence illegal. I agree too that the governing legal question in determining whether such an opportunity has been afforded under Rule 32(a) is 'whether the trial judge did address himself to the defendant personally,' since it would be wholly artificial to regard this opportunity as having been afforded in the absence of a specific and personal invitation to speak from the trial judge to the defendant. The very essence of the ancient common-law right called 'allocution' which Mr. Justice FRANKFURTER recognizes as underlying Rule 32(a) has always been the putting of the question to the defendant by the trial judge.
I think the record in this case clearly shows that the defendant was denied this opportunity, that the sentence imposed upon him therefore was illegal and for this reason that the cause should, in accordance with Federal Criminal Rule 35, be sent back to the District Court for resentencing after compliance with Rule 32(a). Mr. Justice FRANKFURTER refuses to take this course, stating that 'we do not read the record before us to have denied the defendant the opportunity' to talk to the judge about his sentence. This conclusion apparently rests on the view that the trial judge's single question deemed pertinent to this subject "Did you want to say something?'-may well have been directed to the defendant and not to his counsel.' The opinion goes on to imply that maybe when the judge asked 'you' the question he cast his eye or nodded his head in the defendant's direction, maybe the defendant saw the eye cast or the head nod, and therefore it 'may well be that the defendant himself was recognized and sufficiently apprised of his right to speak and chose to exercise this right through his counsel.' On this chain of perhaps possible, but purely imaginary happenings, plus the seemingly irrelevant fact that the defendant 'raised this claim seven years after the occurrence,' it is said that the petitioner 'has failed to meet his burden of showing that he was not accorded the personal right which Rule 32(a) guarantees, and we therefore find that his sentence was not illegal.'
A careful examination of the record reveals the utter implausibility of these imaginative suggested additions to the transcript. The trial judge's bare question 'Did you want to say something?' follows immediately upon a lengthy statement covering three printed pages by the counsel for a codefendant arguing that his motion for a new trial should be granted because of the weakness of the evidence, inconsistencies in testimony, and lack of credibility of a government witness. The colloquy in the four pages preceding that likewise does not touch upon the question of sentencing. Even if it is assumed that the trial judge might have been so thoughtless as to address so unspecific a question to a layman at that point in the proceedings, can it seriously by believed that under such circumstances the defendant would have understood the question to be inviting him to speak on the subject of mitigating factors to be considered in sentencing even if the judge had nodded in his direction when asking 'Did you want to say something?' Moreover, the answer 'Yes, sir' and the succeeding statement came not from the defendant, but from his counsel (who was not the preceding speaker). The obvious implication is the fact explicitly admitted twice in the Government's brief in this case: that the question was addressed to defendant's counsel and not to defendant himself.
I am forced to conclude that the actual holding in this case makes Rule 32(a) mean for less for this particular defendant than the Rule is declared to mean at least for defendants tried in the future. Judges are warned that hereafter their records must leave no doubt that a 'defendant has been issued a personal invitation to speak prior to sentencing.' This, I think, is the correct meaning of the Rule as it was adopted, and this defendant just like all others should be accorded his right under it. He should not be denied that right either because of his criminal record or because of fears conjured up about the number of prisoners who might raise the same question in the event of a decision in this defendant's favor. Bad men, like good men, are entitled to be tried and sentenced in accordance with law, and when it is shown to us that a person is serving an illegal sentence our obligation is to direct that proper steps be taken to correct the wrong done, without regard to the character of a particular defendant or to the possible effect on others who might also want to challenge the legality of their sentences as they have the right to do 'at any time' under Rule 35. If it has any relevance at all, the fact that there may be other prisoners in this country's jails serving illegal sentences would seem to me to make it all the more imperative that we grant appropriate relief in this case rather than search for some obviously dubious excuse to deny this petitioner's claim.
I do not understand why it is necessary or legally correct to defeat this prisoner's claim by invoking what appears to be a wholly new doctrine of burden of proof. What, may I ask, is the burden a defendant must meet to show he was not accorded the personal opportunity to address the judge before a sentence is imposed? Is it proof beyond a reasonable doubt, by a preponderance of the evidence, by the overwhelming weight of the evidence, or what? I suppose from Mr. Justice FRANKFURTER'S opinion that it was the duty of this defendant to show under some standard that when the judge said 'Did you want to say something?' he neither pointed his finger, cast his eye nor nodded his head in the defendant's direction, and that it was incumbent upon the defendant to make this proof even though the Government admitted that the question had been addressed to his counsel and not to the defendant himself. It would seem to me, even in the absence of the Government's admission as to the factual occurrence, that since when the question was asked defendant's counsel immediately made a statement, the fair inference is that if there was any 'significant cast of the eye or * * * nod of the head,' it was directed toward counsel who responded and not toward the defendant who said nothing. Yet it is said that defendant's claim must be defeated because he failed to overcome an inference, without basis in logic or law, of a fact which has been expressly disclaimed by the Government in this case.
The language of Mr. Justice FRANKFURTER'S opinion does not jibe with the harsh result reached in refusing to accord to petitioner the benefit of Rule 32(a). As he points out, that Rule embodies the practice of the English-speaking world for three centuries or more, based as he properly says upon the belief that, 'The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.' A rule so highly prized for so sound a reason for so long a time deserves to be rigorously enforced by this Court, not merely praised in resounding glittering generalities calculated to soften the blow of nonenforcement.
I would remand this case for resentence after compliance with Rule 32(a).

## Notes

* ↑ 'After being convicted, the defendant is usually so crushed as to hesitate to make demands lest they bring increased punishment. The rule (Rule 32(a)) contemplates no such demand, and clearly, without the necessity of any demand at that stage of the trial, the defendant's legal rights should be accorded to him by the court.' Mixon v. United States, 5 Cir., 214 F.2d 364, 366 (Rives, J., concurring).
* ↑ An extensive and detailed review of the English and American common law and statutory cases on this subject led one author to begin his conclusion with the following sentence: 'Today, as always, allocution is an authoritative address by the court to the prisoner as he stands at the bar for sentence.' Barrett, Allocution, 9 Mo.L.Rev. 115, 232, at 254.
* ↑ '* * * (R. No. 70, pp. 4-18). Then the court asked defense counsel if he wanted to say something. In response, counsel spoke for leniency in sentencing (R. No. 70, pp. 18-19).' Brief for the United States, p. 11. (Emphasis supplied.)
'Before sentencing, the court specifically addressed counsel: 'Did you want to say something?" Brief for the United States, p. 31. (Emphasis supplied.)
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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