Warren E. Burger: Arguments next in number 71-6060, Tacon against Arizona. Mr. Hirsh, you may proceed whenever you’re ready.
Robert J. Hirsh: Mr. Chief Justice, may it please the Court. If I could give the Court a brief presentation of the facts in this particular matter, Mr. Tacon was a soldier down at Fort Huachuca in 1969 and in February of that year he was arrested for unlawful sale of marihuana, he was claimed to have transferred a little of an ounce of marihuana to an undercover agent and as the result of that arrest was a charge in the Cochise County Superior Court in South Eastern Arizona. Mr. Tacon was given appointed counsel, he was released from his own recognizance, released back to his company commander and in the summer of the that year, he’d spent time consulting with his court-appointed attorney and if there was a continuance granted at the court-appointed attorney’s request. There was no time set after the motion for continuance was made, the trial judge didn’t set a time certain and in December of 1969, Mr. Tacon was discharged from the service. He called his court-appointed attorney said, “Mr. Whitney, I’ve got to go back to New York, I’m discharged from the service.” Mr. Whitney thereupon told Tacon, “That’s fine, give me your address back there and I’ll notify you when the trial comes up.” In March the 3rd --
Warren E. Burger: Was his release conditioned in any way on remaining within the jurisdiction of the court?
Robert J. Hirsh: No sir, it wasn’t. That was one of the issues that was raised in Cochise County at a hearing and the only restriction that Tacon had on was that his orders had been plugged and Tacon testified at that hearing that he didn’t know the meaning of that and all he understood was that he was to remain at Fort Huachuca as long as he was in the Army but he didn’t understand or have anyone tell him that he couldn’t go back to New York. The trial judge had a different belief as to that and the trial judge in fact had claimed that Tacon had violated his trust and violated the bail arrangement by leaving the state although, I think the record shows that Tacon did act on good faith when he went back to New York. He called the court-appointed attorney in Cochise County and also he had a federal charge that at that time was against him and he called the -- then the U.S. Commissioner in (Inaudible) and the bail restrictions and the federal charge did specify that he was not allowed to leave the State of Arizona without prior permission. Tacon called the U.S. Commissioner and got specific express permission to leave the State and then went to New York. So the state of the record indicates that at least he didn’t have any good faith plea for cause to believe that he was not allowed to leave the State of Arizona.
Warren E. Burger: Tell me again –-
Speaker: Did it show how he got back to New York in his own funds?
Robert J. Hirsh: No, it does not show that. I assume that he had some severance pay from the service, for the service provided wanting to get back to New York.
Speaker: Was he a New Yorker when he entered the Army? Unless he’s changed, [Voice Overlap] came in he’s planning to go back to New York at the taxpayers expense?
Robert J. Hirsh: I’m almost certain that he was a New York resident. I just –- I don’t have a specific recollection of it. I know his family during the time he was in the service moved to Florida and that his mother was a Florida resident at the time this particular case came up for trial.
Warren E. Burger: But did he consult his -- does the record show whether he consulted with his lawyer before he left Arizona?
Robert J. Hirsh: Yes, it does. The appendix shows that in fact, our hearing after the trial indicates that and the attorney verifies this that Tacon called the attorney on the phone and advised him that he is now being discharged from the service. He told him he was going to New York and the attorney said, “Fine, you just give me your address in New York in order to enable me to locate you when the case is called for trial.” So I think it’s clear from the record that Tacon did act in good faith when he went back to New York and fairly welcome as he didn’t violate the law based on my interpretation of the facts. In any event, Tacon returns to New York and on March the 3rd, the trial judge by minute entry advised his counsel that the trial date is to be March 31, 1970. The attorney, the court-appointed attorney after receiving notice of the trial date then writes a letter to Tacon and in this letter he merely states your trial is now set for March 31st, I want you to be out in Bisbee at least one week prior to the time set for trial. That was it, there was nothing about trial absentia if he wasn’t present, there is no more said.
Speaker: Is there any explanation for the long delay between the alleged commission of the offense and the trial?
Robert J. Hirsh: Court procedures in Arizona sometimes we have long delays in Arizona and I should say, I shouldn’t make admissions like that but there’s no apparent explanation. It is common at least in my county to have delays of a year or year and a half depending on the court calendar. It’s not common in federal court. It is common in state court. They’re trying to resolve it.
Speaker: It was only within a year or more than a year, wouldn’t it?
Robert J. Hirsh: Yes sir, that matter is through -- attempting to resolve these problems right now and speed up the trial process. In any event, Tacon and I might add that the Arizona Supreme Court opinion is in error and the Attorney General is in error when they say that Tacon by that letter of March 3rd was advised that he would be tried in absentia, this is the only notice that Tacon received from his court-appointed lawyer that is the letter of March the 3rd. Tacon receives as he testifies around the 8th or 9th of March and he now has -- finds himself with a short time to get up to Arizona and he has no funds, at least this is what he testifies to. On the 28th it is of March, he attempts to call the court-appointed attorney. This is on a Saturday and he calls the attorney in Wilcox, Arizona in his home and he is unable to reach him. He again calls on Monday, that’s the first business day after the weekend and tells him, “I simply don’t have the funds to get to Arizona. I don’t know what to do.” And the court-appointed attorney, and I might add on the 24th the county-attorney of Cochise County gets wind off the fact that Tacon might not be available on Arizona for trial and the State is bringing a witness from El Reno, Oklahoma to testify and the county is anticipating spending some $1,000 in order to see this witness get to Cochise county. The county attorney then advised of the Judge that there’s some question about Tacon appearing at trial and the judge says, well-- we submitted an entry on this part of the appendix in this case, the judge says that if he’s not here, we’re going to try him on absentia, there is minute entry to that effect. The court-appointed attorney is advised with this and in the telephone conversation that occurs on March 30th. He tells Tacon, this is the first time Tacon is advised that if he is not present in Arizona, the very next day that he will tried on absentia, and --
Warren E. Burger: Do you suggest that he must be affirmatively advised to that effect?
Robert J. Hirsh: Well, this goes to the issue of waiver and I think it’s the States position that there was an a knowing and intelligent waiver of his right to be present then the waiver is fortified by the claim that Tacon was specifically advised that he would be tried for absentia if he didn’t appear. It simply isn’t the case at all and the fact of the matter is that he did -- was advised of the trial date by the letter of March the 3rd but that was the only notice he received and enough time to get to Arizona in order to be present for trial. In any event, the trial starts March 31st, the court-appointed lawyer appears before the Court and advises the court that there was a telephone conversation with the Tacon but Tacon didn’t have the funds to be present. The judge who had apparently made up his mind from the week preview said, “You search the court area and see if this gentleman is around, and if he’s not around we’re going to try him absentia. I am making a finding now pursuant to Arizona Rule of Procedure 231” that Tacon’s absence is voluntary. Our rule provides that this finding is to be made at the outset of the trial and we’ll get into the distinction between Rule 43 and the Arizona Rule but in any event, the finding of voluntariness is made by the trial judge at the start of the trial prior to the commencement of trial that morning. They go through the first day of trial; I might add parenthetically, there was a confession extracted from Tacon of a questionable voluntariness. This isn’t in the record but they had Tacon locked up for three hours after the sale was made and that Tacon was crying and after three hours of interrogation, he finally confessed that he in fact had sold a little marihuana to the undercover agent. So that was an issue of that second day of trial. The first day of trial, they selected a jury and made opening statements and examined the first witness, the one from El Reno. In the second day, the State had intended to present evidence of the confession for a voluntariness hearing outside the presence of the jury. The court-appointed lawyer gets word after the first night of trial that Tacon’s mother now finds out that Tacon is supposed to be in Arizona and the mother is going to provide funds for Tacon to arrive in Arizona.
Speaker: Who did that word come from Mr. Hirsh?
Robert J. Hirsh: The way that the information got to the mother was a result of a letter being sent to Tacon’s former mother-in-law’s residence in New York and the former mother-in-law then advised the mother -- the Tacon’s mother in Miami. Tacon’s mother then called I believe Whitney, the court-appointed lawyer and thereafter hired a lawyer by the name Burt Levey in Miami to attempt to negotiate with Whitney to see that Tacon arrived in Arizona for trial.
William H. Rehnquist: So that when Whitney came into court and make his representation the second day, he had had no direct communication from the defendant himself that he would be there.
Robert J. Hirsh: The only communication –-
William H. Rehnquist: Is that correct?
Robert J. Hirsh: Yes, sir. The only communication he had had there before was the converse -- the telephone conversation on March 30, and thereafter he didn’t hear directly from Tacon. He heard from the mother and then from it the attorney in Miami.
William H. Rehnquist: And the substance of the conversation on March 30 was that he might be there or might not?
Robert J. Hirsh: No, the substance of the conversation was the fact that “Mr. Whitney, I want to be there. I intend to be there but I simply don’t have the funds at the present time to get to Arizona and would you see if you can get me a continuance.” And Whitney said, “I doubt that I’m going to be able. In fact, I’m sure I can’t.”
William H. Rehnquist: This is on March 30th?
Robert J. Hirsh: This is on March 30th, yes sir. This is on Monday, the first business day after the weekend. The reason he gave for not calling earlier was that he doesn’t know what to do, he thought he was hopeful that he come into some money and something would happen that would enable him to have the funds to arrive in Arizona but his expectation simply didn’t materialized. In any event, after the first day of trial, the judge has now advised that there are funds available for Tacon to arrive. There is a motion for continuance made and the judge again made a second express finding at that time, denied the motion for continuance, made the second express finding that Tacon was voluntary absent but –-
Speaker: What was the motion specifically?
Robert J. Hirsh: The specific motion was the motion to continue for one day in order to enable Tacon to be present at trial. In order to, I suppose impart controvert the voluntariness of the confession, I don’t know whether --
Speaker: Did he get there the next day?
Robert J. Hirsh: He got there on the third which would -- he got there, the night at the second which would be Thursday night, the trial terminated on April the 1st that was on a Wednesday.
Speaker: So that even his motion got granted, it would have been fruitless?
Robert J. Hirsh: I suppose that if the judge would give him one day, he’d give a day and a half until Tacon actually appeared, I don’t think the judge for that –-
Speaker: Well, I know but the fact is –-
Robert J. Hirsh: Yes, the continuance was for one day where the motion was made asking for one day.
Speaker: The information was that he could easily be there by that time?
Robert J. Hirsh: I expect that he have the hopes that Tacon could arrive. In any event, that motion was denied, the case proceeded to trial, the jury went out and promptly found Tacon guilty. Tacon arrived Friday morning, turned himself in with there is a warrant for his arrest and remained in the Cochise County Jail until he was sentenced some three or four weeks thereafter. The trial judge –-
Speaker: Was there another motion on the second of the night of the second day?
Robert J. Hirsh: No, sir. The second day of the trial terminated.
Speaker: So –-
Robert J. Hirsh: And the jury found Tacon guilty at a very short time.
Speaker: There’s no further motion to keep the record open pending his arrival?
Robert J. Hirsh: No sir, no sir.
Speaker: Was there any statement that he was going to testify or not?
Robert J. Hirsh: No, I don’t believe there was that representation. I don’t see how the court-appointed attorney could have made that representation and recalling the record, I’m almost certain it was –-
Speaker: Are you saying that he should be fine if he did make it?
Robert J. Hirsh: I believe that one representation that was made was that he wanted to contest the voluntariness of the confession and I’m sure that that’s in the record, that’s not in the appendix but it’s in the trial record.
Speaker: That he would have testified outside first.
Robert J. Hirsh: Yes, he would have testified that that confession was involuntarily made, I believe again, I wasn’t trial counsel on the case and I know there were substantial questions as to voluntariness that was raised and the issue was resolved adversely to Tacon by the trial judge. But at least there would have been some chance that that confession was excluded. I might add that confession was replete with evidence of other crimes that weren’t related to this and that might claim before the Arizona Supreme Court was that confession should have not been admitted because there were irrelevant material that showed that Tacon had engaged another bad action. It’s a good question.
Warren E. Burger: Was there any request to delete the parts, the irrelevant parts of the confession?
Robert J. Hirsh: I’m sorry Your Honor?
Warren E. Burger: Was there any request to delete the –-
Robert J. Hirsh: No he didn’t, he didn’t. This man did not have a lot of experience. The record was not a good one. I took the case on appeal and I was, the record should have been, could have been quite --
Speaker: Has a motion for a new trial ever been made?
Robert J. Hirsh: No sir, no sir.
Speaker: How about colla -- does Arizona procedure provide any way of collateral relief for the improper admission of a confession, violation of the Federal Constitution?
Robert J. Hirsh: There is no specific procedure other than appeal but we have means of getting into Court in Arizona. We don’t have a 2255 statute or anything comparable in Federal Law but we call on petitions coram nobis relief and –-
William H. Rehnquist: Could you raise the voluntariness of this confession by coram nobis in the state courts?
Robert J. Hirsh: Well, he could have raised the issue on appeal. The issue –-
William H. Rehnquist: Could he raise the issue of evidentiary voluntariness and get an evidentiary hearing?
Robert J. Hirsh: To have an evidentiary hearing? I suppose he could at this juncture.
Speaker: You know why no motion for a new trial was made?
Robert J. Hirsh: Yes, Your Honor. It was not made because the burden is on the, our position was the burden was on the state of Arizona to affirmatively show this man’s absence from trial was knowingly and voluntarily made and the state never presented a hearing on this particular matter and I don’t feel for the defendant to now have the burden of making a motion for a new trial and having the burden of proving that he was absence -- was violative of this constitutional right and violative of the Constitution, and in order to have waiver, I think the burden of this Court has long held the burdens on the state of Arizona or in the Government to show that waiver and show it by clear and convincing evidence.
Speaker: Once your motion might have been granted, instead you’re taking the burden of an appeal up here?
Robert J. Hirsh: I doubt that in view of the trial judge’s feelings towards this man, I doubt that the trial judge would have granted any relief in this particular case.
Warren E. Burger: Or maybe the Supreme Court would have granted relief if your analysis is correct.
Robert J. Hirsh: Well, the matter went up, the same issue was presented to the Arizona Supreme Court and in fact the only -- the first time that anyone claimed that there should have a motion for a new trial made was in the response by the Attorney General in this case that perhaps the defendant should have made a motion for a new trial but the same issues were presented to the trial judge, they were presented to the -- I take the back, they weren’t presented to the trial judge, they were presented to the Arizona Supreme Court and the Arizona Supreme Court didn’t mention our Rule 311 that provides promotion for a new trial. The Arizona Supreme Court met the issue directly and held that the absence of Tacon was voluntary, that Rule 231 was constitutional and that that was the end of it. So, I think it’s superfluous, number one to have made a motion for new trial and number two, I think that again that would be at odds with the Constitution because it replace the burden on showing waiver on the defendant, and again that’s complex with all the principles that --
Warren E. Burger: So there you’re assuming that on that motion, the conventional rule of putting the burden on the move out would have applied. But if had pressed that point in the trial court, how do we now know that the Court would not have adopted your version of the burden of proof?
Robert J. Hirsh: Well, of course, you can’t be certain, I know this judge personally. I have doubts [Voice Overlap]. I understand that.
Speaker: Well, I object to matter of [Voice Overlap] we’re concerned about.
Robert J. Hirsh: I have doubts that he would have accepted that and perhaps I wish we’re missing not making a request but to say the issue as to whether or not that motion should have been made was never brought up, was never raised in the Arizona Supreme Court. It’s now raised for the first time by the Attorney General here and I think if the State wanted to interpose that argument, perhaps they should have raised it for some previous time, in view the fact that the Arizona Supreme Court did resolve this matter on the issue. My position in this particular matter I might add after the trial terminated, there was a contempt hearing. Tacon received the sentence for five to five-and-a-half years in the Arizona State Penitentiary by this judge and short time after judgment was entered and sentence was passed, he filed a, he directed the county attorney to file an order to show cause ordering Tacon to show cause why he shouldn’t be held in contempt for failing to abide by the court’s order appearing at the time specified in the minute entry. That was my fist appearance in the case and the result of that was that we had an evidentiary hearing on the question of whether or not Tacon willfully and intentionally absent himself from the jurisdiction and we didn’t get into the constitutional question although the hearing was akin to the issue that’s before the Court now. The trial judge after hearing all of the evidence took the matter under advisement and it is to this day still under advisement. He never did rule as to whether or not Tacon was held or should be held in contempt for his willful failure to appear. He did state and I might add -- state virtuously on the record that after Tacon, at the close of the hearing, Tacon requested to make a statement to the court and at state he said, “Your Honor, I swore to you that I intended to be present at trial. I never intended to absent myself and I swore to you that what I’ve told you is the truth.” And the trial judge at that time said. “Mr. Tacon, I can assure you that I’m not in impress one bit with your stated intention at this time” and that was the end of it. We took the appeal to the Arizona Supreme Court and it was on that language that the Arizona Supreme Court said that the trial judge apparently felt that this man willfully, intentionally absent himself from the jurisdiction and did not voluntarily waived his right to be present at the trial and they used that language as to, as a claim that the trial judge made a finding.
Warren E. Burger: I suppose the judge’s utterance is about his credibility finding as a judge could make, isn’t it?
Robert J. Hirsh: Well, again, I distinguished that. But the issue says -- well it wasn’t presented to the court and I think that when we’re talking about a finding --
Warren E. Burger: He heard the witness and signed when he heard all the witnesses’ reasons and excuses.
Robert J. Hirsh: Yes. But I think when we’re talking about an evidentiary hearing on the question of waiver, as to waiver of a constitutional right, I think there ought to be a little more specificity than a judge’s reaction to the witnesses’ testimony, and I think were talking about in fact an evidentiary hearing, that’s what this Court has always mandated, that an evidentiary hearing be made and that specific findings be determined by the court. There were no specific findings and I grant the Court that perhaps you can infer what the findings might have been had they been squarely presented to the court but there were no such findings made and the issue was never squarely presented to the court and to this day, there is no issue for finding the fact or in the question of whether Anthony Tacon voluntarily appeared or voluntarily failed appearance, I’m sorry.
Speaker: With respect to this, a defendant is on bail or on personal recognizance, he goes out of the State, doesn’t violate his bail and he’s notified his trials set and he simply writes “Since I have no money to be there, until I do, I fully intend to be there and once I can never get there but I am going to, there’s just no way of my I’m getting there.
Robert J. Hirsh: Well, I don’t think that that would give the State the right to try on individual absentia. If there’s –-
Speaker: So until the State furnishes the money to try, they can’t try him?
Robert J. Hirsh: No, no sir, no, I think what the state can do at that time is start extradite, if the State feels that there’s no other alternative in this matter, then I think they can extradite, they can forfeit the bail, --
Speaker: Are you saying again the State must furnish the funds to bring you back by extradition for example.
Robert J. Hirsh: He’ll have to brought back under compulsion and his bail is going to be forfeited and he is going to be charged with bail jumping if that jurisdiction is a bail jumping statute --
Warren E. Burger: Is that position a normal, normally used after a person is indicted or is it a function of extradition to getting back for the purpose of indicting him and charging.
Robert J. Hirsh: That’s the traditional function but they can’t extradite under those circumstances where someone, at least there’s a claim or finding by authority that someone has violated his bail agreement.
Speaker: So your position is that -- yes, your position is that if the person says I have no money and he has no money to get back, the State may not try him until it does something else?
Robert J. Hirsh: That’s correct and the reason –-
Speaker: And then you have to take that position in this case don’t you?
Robert J. Hirsh: Well, I don’t have to. I can be successful in this case by claiming that there was finding of fact and that the procedures in Arizona are incompatible with the Constitution, that is the finding should be made at the termination of the trial and not such finding was made in this case and ask the court to return this case for an evidentiary hearing and finding by a trial judge, that to me is not satisfactory, that one I don’t --
Speaker: This fellow uses all of his money to get as far away as he can and just sit there till the State comes and gets him? And then not be tried?
Robert J. Hirsh: Well, it’s like the witness that perhaps might have just gone –-
Speaker: Well, then your answer is yes?
Robert J. Hirsh: Yes sir, yes sir.
Warren E. Burger: Meanwhile, the State is to spend some money getting other witnesses there as they did in this case, did they not?
Robert J. Hirsh: Yes, sir.
Warren E. Burger: They brought a man from another penitentiary or something?
Robert J. Hirsh: El Reno Oklahoma, yes sir.
Warren E. Burger: At some substantial expense?
Robert J. Hirsh: Yes, sir. But you have to weigh that with the fact that the probability that it depends not going to receive a fair trial if he’s absent and that’s –-
Warren E. Burger: But as -- as Justice White suggests that puts a premium on fugitivity by every person once he is charged and puts the burden on the charging state to take the time, trouble and expense of bringing him back.
Robert J. Hirsh: If a person uses this claim of poverty as a subterfuge to avoid returning to the State, I suppose there are a lot of means that you can use to avoid going to trial.
Warren E. Burger: Well, then my --
Robert J. Hirsh: But it doesn’t answer the question as to whether this person shall be constitutionally tried in absentia.
Warren E. Burger: Majority of defendants this days don’t need any subterfuge on the issue of indigency do they?
Robert J. Hirsh: The other way to obviate that -- resolve that problem would be to make to have bail restrictions, restrict the individual to the State, that would be in other way of resolving that problem and in our federal court, we’re required, defense are required to call counsel once a week to keep –-
Warren E. Burger: Well, wouldn’t it help any if the person left in violation of the bail terms, your position would be the same, wouldn’t it not if he had left in violation of the bail?
Robert J. Hirsh: That’s correct, that’s correct that he still could not be –--
Warren E. Burger: Then what do the -- what do the terms, the restrictions in the bail agreement add to the problem?
Robert J. Hirsh: Well, they might give the local court more control over the defendant in the hopes that he will abide by that bail arrangement but there is nothing that can be done. The question is weighing the fact of trying someone in absentia in this particular instance, the court-appointed counsel in fact in most instances, the court-appointed counsel without that individual being present to be at the trial, to make sure, to assure that there’s integrity in that trial and insure that court-appointed counsel does his job as opposed to the state’s policy of proceeding with the trial in the defendants absence and in so weighing I think it’s a matter of policy.
Warren E. Burger: Could the motion to suppress the confession have been made before this man left Arizona?
Robert J. Hirsh: No, sir.
Warren E. Burger: You can’t make a pretrial motion?
Robert J. Hirsh: No, sir. We don’t have any provisions, any procedural provisions in our state procedure to suppress confessions prior to trial. You can suppress unlawfully obtained evidence but as far as the voluntariness of a confession is concerned, that has to be done at trial. We don’t have any specific rule unless the trial judge grants you permission to have that done prior to trouble. We don’t have any rules that enable that to be done.
Warren E. Burger: It’s free discretion with the Court?
Robert J. Hirsh: It’s not really. The custom is to do it at the time of trial. I’ve done it prior to trial when I’ve made special arrangement with the prosecutor and with the court but --
Warren E. Burger: Was then you have not done -- made to that here?
Robert J. Hirsh: No sir. No it wasn’t. I don’t know what the state of preparation that the court-appointed counsel had prior to the commencement of trial and again that’s another reason to my mind that you got to strike the balance as far as policy is concerned and I think the better one is in favor of the defendant rather than in favor of the, facilitating the states trial of an individual and –-
Warren E. Burger: Mr. Hirsh, when and where did you raise a constitutional issue in this case?
Speaker: Or was it raised by somebody –-
Robert J. Hirsh: It was raised before the Arizona Supreme Court.
Warren E. Burger: Alright. In reading their opinion and they seemed to be concerned with the factual question of whether or not your client was voluntarily absent under the provisions of Rule 231 (b) of the Rules of Criminal Procedure, the 17 Arizona Revised Statutes rather than with any constitutional question.
Robert J. Hirsh: Yes, the latter aspect of my claim today was raised. I would tell you that I read my brief and I believed I might have conceded the constitutional validity in part of 231 because it just recently been ruled upon by our Court but I did claim that the procedures used, that is the placing the burden on the defendant was violative of his constitutional right and that –-
Speaker: The Court doesn’t deal with that, they didn’t answer at all.
Robert J. Hirsh: They didn’t answer that question in dealing with any, affirm the least the implicit finding of the trial judge.
Speaker: And in your statement of questions you do when you come, in your brief, you do talk about constitutional provisions involved but –-
Robert J. Hirsh: Well, let me state –-
Speaker: You never heard any provisions of the Constitution, it didn’t seem to me that the, that the Arizona Supreme Court really dealt with –-
Robert J. Hirsh: That --
Speaker: They just dealt with whether or not there was here a voluntarily -- a voluntary absence or an involuntary absence.
Robert J. Hirsh: No, the latter --
Speaker: As a matter of fact, conceding the -- all along the constitutional validity of the provision and dealing with the matter only as a question of fact.
Robert J. Hirsh: Well, the latter issue as to the waiver aspect and the constitutional validity, the waiver and the Arizona procedure was raised, that issue was raised in our brief.
Speaker: But not dealt with by the court?
Robert J. Hirsh: Not dealt with.
Speaker: And therefore if it wasn’t, if under Arizona law it had to be raised at an earlier stage in the litigation, I wonder if your constitutional question is here at all?
Robert J. Hirsh: There was a first opportunity I had to raise a question –-
Speaker: Well, it may appear –-
Robert J. Hirsh: -- in the Supreme Court and I –-
Speaker: Generally speaking –-
Robert J. Hirsh: --I had no opportunity to go back before the trial of the trial court –-
Speaker: No, you didn’t but there was a lawyer there representing –-
Robert J. Hirsh: There was a lawyer, I might add, he might have said something to that effect to the, in the transcript of record but I’d have to go back (Inaudible) of the trial proceedings to --
William H. Rehnquist: Well, that might be very important because as I think you know, we –-
William H. Rehnquist: There’s our Street case and says that if the state appellate court doesn’t deal with it, the presumption is it wasn’t properly reported below.
Robert J. Hirsh: I understand that and I just can’t answer the question Your Honor as to whether or not that question was specifically raised by Mr. Whitney, I just don’t –-
Speaker: In a contempt hearing?
Robert J. Hirsh: No, sir. In the contempt hearing I didn’t raise it at all because –-
Speaker: It doesn’t seem to be talked about there at all.
Robert J. Hirsh: Yes. We didn’t raise it at all, it’s concerned with that narrow issue --
Speaker: Right.
Robert J. Hirsh: At the, as far as the trial was concerned. I just don’t, I only –-
Speaker: And the issue really was it’s whether he was voluntarily absent, he used the words of the rule or not, isn’t that right? And that’s the issue?
Robert J. Hirsh: That’s the issue before this Court.
Speaker: Well, that was the issue that –- It seems to have been dealt with by the Arizona Supreme Court. And that my question is, is there any federal issue before this Court, properly before this Court?
Robert J. Hirsh: Well, I’ve gone through this before in federal habeas corpus and the judge said, “Well as the Arizona Supreme Court didn’t deal with this matter and you’re therefore precluded.” Then I said, “Well the issue was raised, it’s not my fault that they didn’t mentioned it in the opinion, I can’t help what they put in their opinions.”
Speaker: That’s certainly true if it was raised in a timely manner and that’s my question and when and that would depend in part upon Arizona law, in so far as with, it doesn’t require you to raise it at the first opportunity or not.
Robert J. Hirsh: That’s a general principle of law, I don’t, that I’ve always adhered to in whether that’s a, we have a peculiar, I’m almost certain there is no specific statute or rule to that effect or I can’t even recall reading an Arizona case to that effect. I know as a matter of practice I always I do it and I always assume that’s based on case law and it sounds –-
Speaker: In any event, it’s a pretty good idea?
Robert J. Hirsh: Yes sir, yes sir, sound principles of law. I only have a couple of minutes and I’d like to tell the Court I haven’t got around advocating my position and my position is one, that Rule 231 is unconstitutionally valid that the only time that the defendant to be tried in absentia would be one where he expressly consents thereto or he makes an express waiver prior to trial or under a Rule 43 situation that is where he appears at the trial, the start of the trial and thereafter absconds or leaves because there you have at least have an inference that he consulted with counsel, that he certainly knew about the trial, that he was ready to try the case thereafter leaves for disrupted –-
Speaker: (Inaudible)
Robert J. Hirsh: That would be my position as a matter of policy and I think this Court has so held if you read the line of cases, the up through Diaz and it’s always been the position of this Court that the position is embodied in Rule 43 and I think even if there is a situation where he absconds after he is present in the first day of trial, I think there still has to be a later determination –-
Speaker: So really the indigency is irrelevant to have a fellow--
Robert J. Hirsh: No.
Speaker: Or a fellow who have court trial, got plenty of money, he just leaves the State and this convince him to avail and just doesn’t come back. He just gets as far away as he can and he sits there and said “If you want me to for my trial then extradite me” but don’t return.
Robert J. Hirsh: Well, that fellow is in a lot of trouble too because he’s not only going to –-
Speaker: He is in a lot of trouble but how about the right to trial in absentia?
Robert J. Hirsh: As I say, it’s a matter of policy and it’s a matter of policy of weighing the principle --
Speaker: What’s the answer?
Robert J. Hirsh: It’s a vexatious and a difficult one. I’m puzzled –-
Speaker: Well, the problem is, does it come with the money? Can they try him or not?
Robert J. Hirsh: Well, my position would be they cannot because it’s incompatible with the Constitution with the defendant’s right necessity be present at the trial and they say it’s a matter of striking a balance and I’m puzzled with this for some weeks and (Inaudible).
Speaker: So are you saying it’s within (Inaudible)?
Robert J. Hirsh: Yes, my case, I haven’t add a factor, the fact, this man was innocent might -- factually, I feel that he didn’t make a knowing and intelligent waiver of his right to be present because he simply didn’t have the funds to appear but if you ask me hypothetically if there is any difference as far as position, I would take there would be no difference. And my alternative position if you reject my first, the one I just stated to you would be that at a minimum, if you reject the fact and agree that Rule 231 is valid, I might tell you what they’ve done on Rule 231 in Arizona. There was a recent case decided by our Supreme Court that’s, we cited State versus Davis was decided the day or two before this Court accepted cert in my petition where they had given notice to the defendant and he wasn’t seen thereafter and he was tried on absentia and no one had seen him, by some and the court-appointed lawyer and he was convicted and I don’t recall whether he sentenced. And that case was affirmed by the Arizona Supreme Court and apparently as it set a rule in Arizona –-
Speaker: The affirmance is the basis that –-
Robert J. Hirsh: The basis of my case had taken.
Speaker: Well, on the basis that he was voluntary –-
Robert J. Hirsh: As a matter of fact and the presumption that he had voluntarily absent himself arose as a result of him being given notice of the trial date.
Speaker: Right, and in that case, was that case a constitutional decision or did it purport to be? Because this decision doesn’t as I understand it, I read it.
Robert J. Hirsh: I’m almost certain that issue was raised, as a matter of fact, it went up, it was certified by our Supreme Court, the special procedure we have in Arizona and I’m almost certain the constitutional issue was raised in that case. That again Rule 231 was attacked and the Supreme Court whether they answered it in constitutional terms and I don’t recall.
Warren E. Burger: But if they decided it on the basis of your case, then they did not decide at all on constitutional ground -- federal constitutional ground.
Robert J. Hirsh: Yes.
Speaker: But you say, you say they had to decide the federal constitution in your case otherwise –-
Robert J. Hirsh: Well, it was raised –-
Speaker: -- otherwise it would just (Inaudible) legal jurisdictions here.
Robert J. Hirsh: Yes, the issue was raised and by implication –-
Speaker: How they have decided it.
Robert J. Hirsh: By implication they did –-
Speaker: In which depends on whether or not they had to under their system?
Robert J. Hirsh: By implication they decided it by virtue of their affirmance because the issue was raised –-
Speaker: But the presumption is in our case is that if you -- that if a federal question is discussed in a State Supreme Court case is, the reason is because it was not commonly raised in the state court?
Robert J. Hirsh: Yes. Well, I think it’s in a presumption that probably shouldn’t be indulged in. I think you have to look at the record. Certainly, the petitioner should –-
Speaker: But it isn't rule of our case though.
Robert J. Hirsh: The petitioner shouldn’t be penalized because the appellate bench in a particular state doesn’t resolve a question that’s otherwise raised by –-
Speaker: Well, I know but the presumption is the state has some rule that you have to raise it earlier than that, is that what you did?
Robert J. Hirsh: Well, that wasn’t why, I’m sure that’s wasn’t why, it wasn’t discussed in the –-
Warren E. Burger: Well, as I understand –-
Robert J. Hirsh: -- Supreme Court opinion, the matter when the issue was raised was never mentioned and never brought up till, I’m sure there wasn’t on that basis --
Warren E. Burger: [Voice Overlap] analyze the Supreme Court of Arizona and say that within the confidence as to why they didn’t treat the matter which they didn’t treat, can you?
Robert J. Hirsh: No, no, I couldn’t say why the issue wasn’t discussed in the opinion, maybe perhaps the –-
Speaker: You know, I was -- a lot of cases in Arizona where the Supreme Court says we will not discuss this question because it was not presented below.
Robert J. Hirsh: Well that wasn’t the situation here, at least as far as the opinion was concerned.
Warren E. Burger: Well, would you, you tell me if I’m, excuse me in there, I’m sorry, did you finish you?
Robert J. Hirsh: Yes, sir.
Speaker: Did I misunderstand, just tell me, did I misunderstand you a few moments ago that an answer to my question you said that you did not raise the basic constitutionality of Rule 231 --
Robert J. Hirsh: I raised –-
Speaker: -- in the Arizona Supreme Court and as you recollect, you raised only the constitutionality of the further presumption is, where the burden is?
Robert J. Hirsh: That’s correct.
Speaker: Is that what you’re at?
Robert J. Hirsh: As far as getting to the basic –-
Speaker: And not a lot of question is not discussed at all and not averted to, is it?
Robert J. Hirsh: I don’t believe they discussed that at all. Well, it did, they did a little to it in one or two sentences. If you can call this an allusion to that, my claim they said that in Arizona the rule is --
Speaker: Yeah, but they didn’t –-
Robert J. Hirsh: The defendant is given notice and –-
Speaker: They didn’t deal with the constitutionality –-
Robert J. Hirsh: As far as using the phrase, this is constitutional or is compatible with the U.S. Constitution, I don’t believe they did but they say it by implication, the –-
Speaker: But in any event you did not attack the basic constitutionality under the Federal Constitution of the Rule.
Robert J. Hirsh: That’s correct Your Honor, in fact I expressly conceded --
Speaker: Conceded in the light of recently decided Arizona case?
Robert J. Hirsh: -- because of a recently decided case that I felt that I couldn’t get anywhere --
Speaker: That’s what I thought, should –-
Robert J. Hirsh: And in retrospect, I see that was mistake and should have been attacked at time because I see some real, the constitutional impediments to not only the rule but the procedure used.
Warren E. Burger: Thank you Mr. Hirsh. Mr. Dixon.
William P. Dixon: Mr. Chief Justice and may it please the Court. In specific answer to the question of Mr. Justice Stewart, the constitutionality of Arizona Rule 231 was conceded by appellant before the Arizona Supreme Court in his brief and as he says in the subsequent argument only went to whether or not the evidence finding, the voluntary waiver, the presence of trial was sound enough and overbearing enough to stand the problem that all constitutional waivers have to stand.
Speaker: I wonder, do we, we don’t have I suppose in the present record the briefs that were filed in the Arizona Supreme Court?
William P. Dixon: No sir, that was my oversight –-
Speaker: Well, it was nobody’s oversight but I wonder if they could be supplied?
William P. Dixon: They certainly could if that would be acceptable to this Court.
Speaker: I want the -- if the Chief Justice is agreeable I would like to ask the –-
Warren E. Burger: Would you like, would you do that, it’s not a requirement that you do ordinarily but we’d like to have them in this case.
William P. Dixon: I would like to submit them, can I –-
Speaker: Is that the way you present your argument or do you specify your argument?
William P. Dixon: I don’t understand it Mr. Justice –-
Speaker: How do you get issues before the Supreme Court of Arizona, in your briefs or do you specify ahead of time or –-
William P. Dixon: In the briefs.
Speaker: You don’t have assignments of error or –-
William P. Dixon: No, you don’t have a motion for any trial with specifications of error or assignments of error. You file a notice of appeal, your brief to the Arizona Supreme Court sets forth all of the questions which you want presented to the court.
Byron R. White: And how about -- is there, do you know whether there’s a rule in Arizona that the appellate court will normally or always consider only questions which have been presented below?
William P. Dixon: That is the rule Mr. Justice White, they had recently probably under the pressure from this Court and the federal courts, been considering the federal constitutional questions when they are raised for the first time with them but that rule is of longstanding, but unless it is presented first to the trial court to give the trial court a chance to correct its own mistake, it will not consider it on appeal. As I say they’ve been ignoring that tacitly in recent decisions when it has been constitutional question that is first presented and I think rightly so because otherwise they can go to the Federal District Court on a writ of habeas and there was no question about it. Alright, this case for me at least has been one that was difficult to get ahead along in the beginning and I think that was because of three particular reasons. The first reason being the claim of poverty, poverty seemed to raise the constitutional question that we have run roughshod over somebody’s rights over some poor persons right. I think also because of the claim that there had been no hearing on voluntariness and untimely of course when I searched the record, we found that the trial judge made no express decision after he had heard all of the testimony on his motion for contempt. But really, the only issues of this case could ever present whether before this Court or before the Arizona Supreme Court would be two. One is the constitutionality of Arizona’s Rule 231 and the second issue would be dependent upon the resolution of the first and that would be granted that rule as constitutional was there sufficient evidence before the court to sustain the finding if only an implied finding which it did make.
Warren E. Burger: Well, does that produce this case to a sufficiency of the evidence?
William P. Dixon: I think it does Mr. Chief Justice.
Warren E. Burger: Rule?
William P. Dixon: I think the only way I read this case is to read it as to whether or not there was a sufficiency of the evidence here.
Speaker: That’s not of our business in a state case, is it?
William P. Dixon: That’s correct.
Speaker: Unless there’s in an absolute absence of evidence which would make it like Thompson against Louisville.
William P. Dixon: This is correct, Your Honor. More or less we had a clear one where the burden was upon the State and the burden was clearly not met. This is part of the reason why it’s such a difficult time getting a handle to this.
William O. Douglas: Do you think there’s no Federal question presented here?
William P. Dixon: Not properly presented Mr. Justice Douglas. I think it could have perhaps come before this Court in a proper state but I don’t think it is properly before you today.
William O. Douglas: How could it come here properly?
William P. Dixon: Had the constitutionality of Arizona Rule 231 been attacked either at the trial court or in the Arizona Supreme Court and it was not.
Speaker: Or by habeas -- federal habeas corpus.
William P. Dixon: Or by a federal habeas corpus.
Speaker: Which I take it still available –-
William P. Dixon: As a matter of fact state habeas corpus is still available, Your Honor.
Speaker: Because it was presented you think it had the right to be –-
William P. Dixon: That’s right.
Speaker: It is not available to what? In Arizona?
William P. Dixon: I’m sorry I didn’t understand that.
Speaker: Lets assume you do present a federal constitutional question in the criminal case –-
William P. Dixon: In Arizona?
Speaker: --that is rejected, would that mean this raises anything in state habeas?
William P. Dixon: No, no, unless –-
William O. Douglas: Had I understood you to say that the federal question was presented to Arizona Supreme Court in the state brief, in the brief of petitioner there?
William P. Dixon: No, I say it was not Mr. Justice Douglas. As a matter of fact the constitutionality of Arizona Rule 231 was expressly conceded and unfortunately, that didn’t give them the record before this Court.
Warren E. Burger: Is that the brief that you have before you now that you are going to furnish to us?
William P. Dixon: Yes. The appellant does not argue with that proposition nor does he urge the Court to hold Rule 231 as unconstitutional.
Speaker: On its face, is that what it means or applied or what?
William P. Dixon: Perhaps this line sir. “The thrust of this argument premised then on the fact that the evidence in this case does not clearly show that appellant knowingly and intelligently may waive his right to be present at trial.”
William O. Douglas: That raises the federal question, doesn’t it? Those two things put together?
William P. Dixon: Now, the first statement said he did not question the constitutionality of the rule, the second statement said --
William O. Douglas: Let me read the whole thing, not just that. No, no but read that whole paragraph whatever it is.
William P. Dixon: Alright, from the beginning?
Speaker: I’m not clear what you have been reading is just two isolated sentences or what?
Warren E. Burger: Read the parts that relates to the concession that you said he made in his brief.
William P. Dixon: The established rule in this jurisdiction as to criminal trial is being held an absentia, has been set forth by this Court in state B-2. This court in interpreting Rule 231 of the rules of criminal procedure held in that case of a voluntary absence from trial by the defendant constitutes a waiver of the defendant’s right to be present during the trial of his case. The appellant does not argue with that proposition nor does he urge the Court to hold that Rule 231 is unconstitutional, that’s the opening paragraph of petitioners brief to the Arizona Supreme Court on the constitutional status of Arizona Rule 231.
Speaker: And that he proceeds to say there, the thrust of this brief is that the question presented here is whether or not there was in fact a waiver.
William P. Dixon: Yes, sir.
Warren E. Burger: Mr. counsel, if you are in the position to leave one copy of that with the clerk, we’ll undertake to have it Xeroxed for all the member of the Court to in case you don’t have multiple copies with you.
William P. Dixon: I am in a position to do it Mr. Chief Justice. I have put my own ink marks in it from time to time.
Warren E. Burger: We’ll overlook them.
William P. Dixon: Very good.
Warren E. Burger: We would want all the briefs of course.
William P. Dixon: Yes. Here is ours in this reply brief.
Warren E. Burger: Right. Great.
William P. Dixon: I have no further formal argument, I’m available for questions.
Warren E. Burger: Thank you Mr. Dixon. Thank you Mr. Hirsh. The case is submitted. You will undertake to leave copies of your briefs too with the clerk.
William P. Dixon: Yes sir there –-
Warren E. Burger: Unless he has –-
Speaker: I have --
Warren E. Burger: Thank you gentlemen. The case is submitted.


Earl Warren: Number 282, Alma Schulz, Administratrix versus the Pennsylvania Railroad. Mr. Allen, you may proceed.
Joseph P. Allen: May it please the Court. I would like to touch briefly on the testimony with respect to the allegation of insufficient help provided the decedent on the night in question. The crew dispatcher upon receiving a telephone call from the decedent that the decedent would be late for work advised the decedent to come to work anyways since if he did not it would leave his trick or shift one-man short. Another watch fireman testified that he recalled hearing some work -- hearing some word that the middle shift to which the decedent had been assigned was short. He testified that the witness, Andre, who was to be watch fireman who relived the decedent testified that it was difficult for one man to take care of four boats to which the decedent admittedly had been assigned. He didn't testify or indicate in any way that it would be more dangerous but he testified that it would be more difficult that he couldn't properly take care of the boats, and maintaining the fires, and maintaining the water in the boilers and doing the jobs which watch fireman were required to do. Admittedly, the decedent, as far as the record is concerned, was the only man on this night assigned to watch four boats. However, the witness, Barker, who in the decedent's absence had taken care of the decedent's boats, for that period of time, I think from about five o'clock, around five o'clock, was actually taken care of three of his own boats and the four boats to which the decedent had been assigned and the crew dispatcher testified that it was not unusual to assign a watch fireman to watch four boats. But the question of whether or not there was sufficient help in -- in and of itself is no way connected or can be connected with the death of the decedent and I think that the case on this aspect is governed by the same principles as governed the case of Reynolds against Atlantic Coast Line. In that case, the allegation also was that the decedent had not been supplied with sufficient help. He was a freight brakeman on a moving train and his job was to cross between cars of a moving train to signal to the engineer at the time when a switching movement was to be -- was to be made. It was -- it was testified -- it was -- or there was an allegation that the Reynolds case was disposed off on a demurrer made in the complaint, but the allegation was that because the respondent had not supplied the decedent with an additional brakeman, he had to make an additional crossing. He had to make one more crossing between cars. But the court of Alabama and it was sustained by this Court on a peculiar decision, stated that the fact that he had to make this additional crossing was no more hazardous than the work which he ordinarily performed. And what for the intervention of some other force, it could not have caused his fall which was as in this case completely unexplained as to why or how he had fallen from the train and that resulted in -- an affirmance in this Court of a dismissal of the complaint.
Speaker: Can I ask you a question?
Joseph P. Allen: Yes, sir.
Speaker: (Inaudible)
Joseph P. Allen: No, sir, I do not. First of all, as I -- there were three elements as I understand which the petitioner relies upon. I think the evidence with respect to the condition of the -- of the ice on the barges is untenable for the simple reason that the weather report clearly established it was 40 degrees. Nobody testified that they saw ice. The only testimony with respect to the ice was that it was on the front bumping mat, a place in which the decedent could not possibly have been at any time. With respect to the lights --
Earl Warren: When the -- wasn't the temperature 40 degrees some hours before this?
Joseph P. Allen: Yes, sir, it was 40 degrees. It's -- it's at page 82 of the record. The temperature was 40 degrees at 5 p.m. and then it steadily increased until later in the day -- next day which we're not concerned with -- it got, as I remember correctly, up to the middle 50.
Earl Warren: Well, did it -- did the record show that it steadily increased throughout the night?
Joseph P. Allen: Yes, sir.
Earl Warren: Or that it was just 50 degrees the next day.
Joseph P. Allen: No, sir. The record shows the complete weather report is in the record at page 82 and it shows the hourly temperatures at Battery Place, New York City just across the river and it shows it's increasing from 40 degrees to 41 to 42 throughout the night.
Earl Warren: Was there normally any difference in temperatures on one side of that river and the other?
Joseph P. Allen: I would say no, sir, but that is not clear in the record. It's -- it's the evidence which was placed in the record by the petitioner here as being obtained in response to an inquiry from the weather bureau, I understand, and they supplied them information, the petitioner placed it in the record. It's only a short distance across the river, sir. With respect to the lighting, sir, the -- unquestionably is the District Court and the Court of Appeals has pointed out and as the record establishes and as the petitioner's brief establishes, there is no question but that these floodlights at the outboard into the dock and the inboard in beyond the bulkhead illuminated the entire pier and some portions of -- of the -- of the tugboats, in addition to which all of the men were given a flashlight. Now, that is some dispute as to that testimony as to why. Some said that it was necessary when they went below because there were no lights on these boats. They were taken out of navigation temporarily for one or two days. All the men said that they used it around the boats. One of the witnesses, however, who was in the second tier or the fourth tier, I think, it was not, but it was the next tier to the decedent's boats, said that he -- he didn't have to use his flashlight walking around these boats and that is the closest evidence with respect to what the conditions were at about this time. In addition, the assistant road foreman of engines stated that the pier was lit up and this -- it was lit up like daylight. With respect to the allegation of -- of the lights, I might point out that in the petitioner's brief, he apparently abandons the testimony with respect to the ice and he states at page 26 that he does this because, concededly, the barge or the boats in the dock was not completely covered with ice and therefore it cannot be causally related. I think that the same reasoning applies with equal force as the Court of Appeals did that unquestionably since this complete area was not in complete darkness that cannot be causally related with a fall of the decedent. I think with respect to the insufficient help, again, without the intervention of some other force, we admit the fact alone, if conceding or for the purposes of the argument that there was insufficient help, that could not contribute to the decedent's death. It didn't make his work any more hazardous. It perhaps made it -- if it did made it more difficult, made it more difficult for him to properly tend to the four boats.
Earl Warren: Well, the judge did find that there was negligence, didn't he? But merely didn't find that there's any causal connection between the --
Joseph P. Allen: Yes, sir.
Earl Warren: -- the negligence and the death.
Joseph P. Allen: Yes, sir. His -- his words, if I remember exact -- correctly, there is some evidence of negligence but not a shred of evidence which would causally connect it with the decedent's accidental death. And the Circuit Court of Appeals then said that the evidence of negligence however is doubtfully sufficient to take it to the jury and in beyond -- and in addition to that, there was no evidence which would causally connect it to the decedent's death. There -- there is an -- an additional point with respect to whether or not the petitioner is proceeding under the right act here which has never been determined in either court below but it is important to the petitioner's case because they must necessarily establish that the decedent was a seaman under the Jones Act and a member of the crew under the Longshoremen and Harbor Workers' Act. Our position briefly on that is that the decedent was not a member of the crew. He was assigned to watch these four tugboats and he, on the next night or the night previous, he could have been assigned to watch any number of other tugboats. He didn't have any permanent connection with any one of these ships. He lived ashore, he ate ashore, he had locker facilities ashore. He was not on board primarily to aid the navigation. His job, I've compared them to those of a watchman. His job was to take care of the flyers, to take care of the water in the boilers and generally to see if the ships were in condition. They were taken out of navigation temporarily and admittedly were to go back after the holiday. But I think the fact that he had no permanent connection with any of these ships, he was not on board primarily to aid the navigation, mitigates against the finding that he was a member of the crew. In addition to that, I personally find it difficult to visualize how he could be a member of -- of a crew of four different ships. I have no difficulty with accepting the fact that one man can -- can be the crew of a ship, but I have difficulty establishing into my own satisfaction that one man can be a member of four crews or be the crew of four ships.
Speaker: (Inaudible)
Joseph P. Allen: In -- in that -- in that contention, sir, the -- the -- our position has always been that the proper remedy is the Compensation Act.
Speaker: (Inaudible)
Joseph P. Allen: Yes, sir. We have -- we have maintained that in the District Court. We -- it wasn't -- it was argued in the briefs in the Court of Appeals but not orally, but we have -- or on the record stating that the proper remedy for the petition that they pursue in this case is the Longshoremen and Harbor Workers' Compensation --
Speaker: But I have to assume that the contention be sustained (Inaudible)
Joseph P. Allen: Yes, sir, the -- the --
Speaker: (Inaudible)
Joseph P. Allen: No, sir. The decedent has protected her rights under that statute as I understand that she has filed the necessary papers to protect their interest. In summary, I would just like to distinguish briefly the case of Sadler against Pennsylvania Railroad Company and Lavender v. Kurn by stating that in both of those cases, the place of accident was definitely ascertained. In -- in the Sadler case, the -- the decedent was found threading the water between the two barges and the inference, of course, was inescapable that he had fallen from that point right above the water at which point admittedly the lighting was poor. Completely different from this case where the place of accident cannot be established by evidence by circumstantial or direct evidence. In -- the same thing as true of Lavender v. Kurn where the place of accident was established at a mound near the defendant's right-of-way and the reasonable inference there was that the decedent had been injured at that place by -- by the passing train when the nail hooks swung out. Those cases --
Earl Warren: Suppose there was some mark to identify where he had fallen, would there be enough evidence to go to the jury in this case?
Joseph P. Allen: I think -- then, if there was some mark, if there was a broken rail or some indication from where he fell and it was a point at which there was some darkness, some ice, yes, sir, then, I think it would come within the Sadler against Pennsylvania Railway.
Earl Warren: So the only weakness in this case as you see it, the only fatal weakness is that there is no evidence where -- where he went into the water.
Joseph P. Allen: Where or how, yes, sir.
Earl Warren: Yes.
Joseph P. Allen: Yes. I think that there's an inference as to when -- the inference as to when being determined by the fact when he was last seen, when he was discovered missing, that narrows it down or maybe a four-hour period. But there's no permissible inference here as to from where he fell or how he fell or as the District Court in Palmer v. Johnson added as to why he fell. Thank you very much.
Nathan Baker: May I --
Earl Warren: Mr. Baker.
Nathan Baker: I'll try to be very brief in my reply. First, Chief Justice Warren, you asked a question about the temperature. There is direct evidence from Stetson, the assistant foreman in page 24 of the record that at the time of this evening, the temperature was 10 above zero. That was his testimony, the assistant foreman. That's outside of the weather reports. I submit also that the reference to the darkness at least counsel's argument has indicated a question of fact and in the question of darkness as direct evidence in addition to the fireman who took the place of this deceased from Mr. Kaufman, a crew dispatcher, called the crew dispatcher. On page 14 of the record, he says there were no lights on the boat and that was it was so dark in a boat that he had to use flashlight and a Mr. Stetson, the assistant foreman for the Pennsylvania Railroad on page 21 of the record says that he used the railroad light, the large railroad light in getting about from boat to boat under those circumstances. At least it raised a -- a disputed question of facts to be submitted to the jury. On the question of Johnson versus Palmer upon which the Circuit Court rested its opinion, I think that can be distinguished in the present case because in the Johnson case, there was just the question of the one point of negligence, the absence of the giving of a signal and the Court held that there was nothing to show that he met his death at that time. But here, we have darkness proven to be a continuing act at all times while he was on that vessel, so that it's entirely different so that while that darkness was present as a continuing act, the indication is that it was that negligence that the jury can raise a necessary inference that the negligence was during the period of time when that darkness prevailed when he met his accidental dead. I think it can be distinguished from that way. I like to state to the Court that the two exhibits mainly the Exhibit P11 in our brief, I set it forth as the Exhibit P1, it should be P11 and by error, we have not left it with the clerk, so it was not made part of record. The main purpose of that exhibit shows that in that exhibit, the police record shows that when he was found and taken out of the water, he had a flashlight in his hand, when taken out of the water only underwear and shoes are on, as I've been arguing throughout this appeal and I see also a photograph here, Exhibit C,D. I was wondering if I can ask the admission of the Court to leave it with the clerk so it would be included in the original record.
Earl Warren: They may be left to the clerk.
Nathan Baker: And I'd be very happy to make a -- part of the printed of record if he shows -- so desired.
Earl Warren: I think it will not be necessary.
Nathan Baker: Thank you.
Hugo L. Black: Were they exhibits?
Nathan Baker: They are exhibits.
Hugo L. Black: They were exhibits, yes.
Nathan Baker: I'll leave it with the clerk. Thank you.
Earl Warren: Thank you.