# Coleman v. Alabama (399 U.S. 1)/Dissent Stewart

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Black White Harlan
* Dissenting Opinion Stewart
United States Supreme Court
399 U.S. 1
Coleman v. Alabama
Argued: Nov. 18, 1969. --- Decided: June 22, 1970
Mr. Justice STEWART, with whom The Chief Justice joins, dissenting.
On a July night in 1966 Casey Reynolds and his wife stopped their car on Green Springs Highway in Birmingham, Alabama, in order to change a flat tire. They were soon accosted by three men whose evident purpose was armed robbery and rape. The assailants shot Reynolds twice before they were frightened away by the lights of a passing automobile. Some two months later the petitioners were arrested, and later identified by Reynolds as two of the three men who had assaulted him and his wife.
A few days later the petitioners were granted a preliminary hearing before a county judge. At this hearing the petitioners were neither required nor permitted to enter any plea. The sole purpose of such a hearing in Alabama is to determine whether there is sufficient evidence against the accused to warrant presenting the case to a grand jury, and, if so, to fix bail if the offense is bailable. At the conclusion of the hearing the petitioners were bound over to the grand jury, and their bond was set at $10,000. No record or transcript of any kind was made of the hearing.
Less than a month later the grand jury returned an indictment against the petitioners, charging them with assault to commit murder. Promptly after their indictment, a lawyer was appointed to represent them. At their arraignment two weeks later, where they were represented by their appointed counsel, they entered a plea of not guilty. Cf. Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114. Some months later they were brought to trial, again represented by appointed counsel. Cf. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. The jury found them guilty as charged, and they were sentenced to the penitentiary.
If at the trial the prosecution had used any incriminating statements made by the petitioners at the preliminary hearing, the convictions before us would quite properly have to be set aside. White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193. But that did not happen in this case. Or if the prosecution had used the statement of any other witness at the preliminary hearing against the petitioners at their trial, we would likewise quite properly have to set aside these convictions. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. But that did not happen in this case either. For, as the prevailing opinion today perforce concedes, 'the prohibition against use by the State at trial of anything that occurred at the preliminary hearing was scrupulously observed.'
Nevertheless, the Court sets aside the convictions because, it says, counsel should have been provided for the petitioners at the preliminary hearing. None of the cases relied upon in that opinion points to any such result. Even the Miranda decision does not require counsel to be present at 'pretrial custodial interrogation.' That case simply held that the constitutional guarantee against compulsory self-incrimination prohibits the introduction at the trial of statements made by the defendant during custodial interrogation if the Miranda 'guidelines' were not followed. 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. See also United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. And I repeat that in this case no evidence of anything said or done at the preliminary hearing was introduced at the petitioners' trial.
But the prevailing opinion holds today that the Constitution required Alabama to provide a lawyer for the petitioners at their preliminary hearing, not so much, it seems, to assure a fair trial as to assure a fair preliminary hearing. A lawyer at the preliminary hearing, the opinion says, might have led the magistrate to 'refuse to bind the accused over.' Or a lawyer might have made 'effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail.'
If those are the reasons a lawyer must be provided, then the most elementary logic requires that a new preliminary hearing must now be held, with counsel made available to the petitioners. In order to provide such relief, it would, of course, be necessary not only to set aside these convictions, but also to set aside the grand jury indictments, and the magistrate's orders fixing bail and binding over the petitioners. Since the petitioners have now been found by a jury in a constitutional trial to be guilty beyond a reasonable doubt, the prevailing opinion understandably boggles at these logical consequences of the reasoning therein. It refrains, in short, from now turning back the clock by ordering a new preliminary hearing to determine all over again whether there is sufficient evidence against the accused to present their case to a grand jury. Instead, the Court sets aside these convictions and remands the case for determination 'whether the convictions should be reinstated or a new trial ordered,' and this action seems to me even more quixotic.
The petitioners have simply not alleged that anything that happened at the preliminary hearing turned out in this case to be critical to the fairness of their trial. They have not alleged that they were affirmatively prejudiced at the trial by anything that occurred at the preliminary hearing. They have not pointed to any affirmative advantage they would have enjoyed at the trial if they had had a lawyer at their preliminary hearing.
No record or transcript of any kind was made of the preliminary hearing. Therefore, if the burden on remand is on the petitioners to show that they were prejudiced, it is clear that that burden cannot be met and the remand is a futile gesture. If, on the other hand, the burden is on the State to disprove beyond a reasonable doubt any and all speculative advantages that the petitioners might conceivably have enjoyed if counsel had been present at their preliminary hearing, then obviously that burden cannot be met either, and the Court should simply reverse these convictions. All I can say is that if the Alabama courts can figure out what they are supposed to do with this case now that it has been remanded to them, their perceptiveness will far exceed mine.
The record before us makes clear that no evidence of what occurred at the preliminary hearing was used against the petitioners at their now completed trial. I would hold, therefore, that the absence of counsel at the preliminary hearing deprived the petitioners of no constitutional rights. Accordingly, I would affirm these convictions.

## Notes

* ↑ Ala.Code, Tit. 15, §§ 133-140 (1958).
* ↑ I agree with the result reached in Part 1 of the prevailing opinion.
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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