John G. Roberts, Jr.: We will hear argument next in Case 08-88, Vermont v. Brillon. Ms. Rainville.
Christina Rainville: Mr. Chief Justice, and may it please the Court: There are many reasons to reverse the Vermont Supreme Court in this case. I am going to begin by addressing four reasons as a matter of law that do not require the Court to -- to review the record. The first is, even if we assume that the public defender is an assigned counsel -- and for the purposes of argument, I am just going to use the term "public defender". If we assume that public defenders do little or nothing in a case, one cannot have a rule that that time is chargeable under the speedy trial right to the State because to do so creates chaos of constitutional proportions in the criminal justice system.
David H. Souter: May I ask you a question that goes at least to one possible application of -- of your argument? Your argument for the State, the position that you just took, would -- would apply to the period of time, as I understand it, in which the individual named, the defender named Sleigh, had been appointed to -- to represent the defendant. And as I understand it, when this case was argued in the Supreme Court of Vermont, the State conceded that, in fact, some prejudice should be attributed and it should be held against the State that Sleigh in effect did nothing. They said, well, don't hold it against us quite as much as you might, but, in any case, that can be held against us. Here you don't take that position, and I -- I don't know whether it's open to you -- it seems to me that it's not open to you -- to take a different position with respect to Sleigh here than the Attorney General of Vermont did when it was before the Supreme Court of Vermont. And I -- I have to assume that you just see it differently from the way the Attorney General did. But would -- would you comment on -- on the position that the State took and tell me why you can take a different position here?
Christina Rainville: Yes. Yes, Your Honor. The State did take the position that the eight-month period, which included the four months where Attorney Sleigh was involved, was a neutral factor. And under the dicta in Barker, that would allow the Court to apply it against the State, although not to weigh it heavily as a -- as a neutral factor.
David H. Souter: Yes.
Christina Rainville: That was dicta in Barker, but controlling to the Vermont Supreme Court. Before this Court, however, on these facts--
David H. Souter: But it was conceded, wasn't it, in the -- in the Vermont Supreme Court?
Christina Rainville: --It was conceded that it was a neutral time period.
David H. Souter: Yes.
Christina Rainville: And -- and--
David H. Souter: Well, then, why isn't that concession binding here?
Christina Rainville: --I think it -- it may be binding if the Court determines it's binding. But I don't think it should be binding because this Court is considering policy that's going to affect all States and all courts. And the issue that was raised by the National Governors Association, for example, as to whether public defenders can be State actors -- and the law is clear that they cannot -- that's an important issue.
David H. Souter: Well, it is, but that is not an issue that is necessarily implied by the -- by the concession that the Attorney General made in the Vermont Supreme Court.
Christina Rainville: Yes. Yes, but also if you look at the record, the three years of delay, the time period involving Mr. Sleigh is approximately four months. If you take all four months where he was appointed by the docket or two months if you take the time where he thought and understood that he was on the case, and in light of the three-year delay, that amount of time is really inconsequential.
John G. Roberts, Jr.: It may have been a good concession below. I mean, it would -- as I understand it, the problem arose because of change in the contract, right?
Christina Rainville: That's correct.
John G. Roberts, Jr.: I mean, that may well have been attributable to the State.
Christina Rainville: It -- it may well have been attributable to the defender general. And that's one of the problems in this case is that we don't have a record of why different attorneys -- Attorney No. 4, Donaldson, and Attorney No. 5, Sleigh, were never asked what they did or--
John G. Roberts, Jr.: I suppose you are willing to concede that there are situations where the delay would be attributable to the State because of systemic problems?
Christina Rainville: --Yes.
John G. Roberts, Jr.: The State has so many cases, and it's only willing to hire one lawyer. That lawyer can't possibly handle all the cases.
Christina Rainville: Absolutely. But that's not the case here. That might be the situation if, for example, the defender general said to every defendant: If you want a trial with a lawyer, you have to wait a year. That's not what happened here. What happened here is the defender general was incredibly diligent. He appointed new counsel five times the same day. The day of the arraignment Mr. Ammons was appointed. The day Mr. Ammons withdrew, replacement counsel, Mr. Harnett, was appointed. The day Mr. Harnett withdrew, replacement counsel was appointed. The day Mr. Donaldson withdrew, the docket shows that Sleigh was appointed. Five times the same day the defender general appointed counsel. The sixth time, given that we are in Vermont, a very small State with few lawyers, he had difficulty finding a sixth lawyer. But the defender general took extraordinary measures and went to the Vermont Legislature and obtained funding, and the legislature came up to the plate very quickly, in a matter of weeks. The last withdrawal of Lawyer No. 5 happens on April 10th. It's June 20th that there is the letter in the appendix from the defender general saying that the legislature has approved new funding. It's -- it's literally a matter of weeks before the legislature comes to the plate and provides additional funding. So to the extent that -- that that is State action, the defender general has been incredibly expeditious, incredibly diligent, and went to the extraordinary length of getting additional funding for the sixth lawyer. We -- we would concede--
Antonin Scalia: I guess when -- when the last two lawyers withdrew because their contracts had expired, I suppose the court could have refused to permit them to withdraw, couldn't it?
Christina Rainville: --It could have.
Antonin Scalia: Couldn't it say you -- you have an ethical duty; having undertaken representation, and it being very difficult to get anybody else, you -- you stay in the case?
Christina Rainville: The -- the court could have, and certainly--
Antonin Scalia: Does it make it not the State's court -- not the State's fault no matter what? Is -- is the court's misfeasance the State's misfeasance? Do you attribute that to the State?
Christina Rainville: --The court's misfeasance would -- would certainly be attributable to the State, but we would argue that it would be a neutral factor. But here, Your Honor, Brillon would -- in terms of the fourth lawyer, Mr. Donaldson, he sought to have him fired. And, in fact, it was his letter to the court and then a subsequent motion to the court to have that lawyer dismissed. And in that colloquy when the -- when the -- the trial judge asked Brillon, do you want to have -- do you still want to have him fired despite all this delay and everything, and Brillon says yes, clearly the court with regard to Donaldson could have said to Donaldson, you stay on this case and get this case to trial. But Brillon waived that. Brillon said that he wanted a new lawyer. With regard to Sleigh--
Stephen G. Breyer: --with that particular period. The trouble that I have with that particular period is August 1, 2003, to June 14, 2004, isn't that right? That is Donaldson -- or that's Moore?
Christina Rainville: --That's Moore.
Stephen G. Breyer: All right. Donaldson was the first one?
Christina Rainville: Donaldson was actually Lawyer No. 4.
Stephen G. Breyer: Go ahead. [Laughter]
David H. Souter: Before you start, let me just make a comment and a -- and a question based on it. The comment is I -- I'm willing to accept a lot of what you say here, there is plenty of blame to go around. But you accept, as I understand it, the proposition that the State has simply got an affirmative duty to make some kind of effective trial and representation arrangement. It -- it -- it has that duty through providing the public defender, it has that duty simply through providing a court that will keep things moving, and I think that's common ground. If that, as it seems to be, is common ground, then do we have anything before us in this case, except sort of going through the list of counsel, the list of reasons, the list of delays and reviewing the Vermont Supreme Court on, in effect, the details that it assumed in applying the rule? In other words, it seems to me that there isn't an issue of principle dividing the parties here, it's a series of issues of details. Is that an unfair way to look at the case as we've got it?
Christina Rainville: You can certainly look at it in terms of details, and I think that the Vermont Supreme Court's findings are unsupported by the record. But as a matter of law, you have delays by State actors, and even if you take the two or the four months for Sleigh aside, the rest of the delay, three years of delay minus -- there's four months, of course, which he had no counsel -- but three years minus that time, is all caused by non-State actors.
David H. Souter: Yeah, but if you take Sleigh, Donaldson, and the period in which there was no -- I guess, following Sleigh, in which there was no counsel appointed at all, you're already up to just about a year. And a year is -- is enough to trigger Neil v. Biggers. And so, it seems to me that what -- what the fight, what the serious fight is about is, well, within the further total of two-year period, who is to blame for this, who was to blame to that, and I'm -- I'm not sure that it's of any value to just go through and second-guess the Supreme Court of Vermont on those details, because you've got enough in Neil v. Biggers before you even get to those details.
Christina Rainville: Well, also in terms of just based on Brillon's admission, there's enough for this Court to decide the case. He admits that he fired three different lawyers.
David H. Souter: Right.
Samuel A. Alito, Jr.: Isn't there -- isn't there that very important principle involved here that doesn't simply involve calculating particular periods of delay? When you have a defendant who starts out by firing a lawyer and engineering the withdrawal of another lawyer by threatening a lawyer, is it appropriate then to go through all of the subsequent periods and attribute the delay to the defendant or to the prosecution or as a neutral factor as if those, the initial events, hadn't occurred? We don't know how quickly this case would have gone to trial if the first lawyer hadn't been fired or if the third lawyer, I guess it was, had not been threatened and forced to withdraw.
Christina Rainville: I believe you're absolutely right, Justice Alito. In this case his conduct was so unconscionable in threatening both his lawyer, and the facts there--
John Paul Stevens: I really wanted to ask you pretty much exactly the same question. If we assume exactly the terrible way he fired the first two -- the first lawyer certainly, maybe the second, would it be true that no matter how long the delay occurred after that, he could never get Sixth Amendment relief?
Christina Rainville: --I would -- I wouldn't go that far, Justice Stevens.
John Paul Stevens: Why not?
Christina Rainville: Because what if the State kept him for ten years without a trial? I don't think that would ever happen. Certainly on these facts there's no basis, given his conduct, to balance anything in his favor. Vermont's--
Stephen G. Breyer: Well, there -- as I understand it, that that first year the Vermont Supreme Court agrees with you.
Christina Rainville: --That's right.
Stephen G. Breyer: They said, we're not counting any of that against you. Now we go into the second year, and the second year had to do with Mr. Donaldson, a lot of it. And it turns out that Mr. Donaldson actually had left the office within a few days of his having been appointed to do this and then he never did anything. So the Supreme Court of Vermont says, as far as Mr. Donaldson is concerned, we do hold that against the State for the reason that it is the equivalent of not giving him anybody. The guy they gave him wasn't even a public defender, he never did a thing. All right. Now we go to the third group. The third group, the State agreed they should be charged. That's Mr. Sleigh. The third one they agreed with it. They said lightly, but they agreed with it. And as to the final group, Mrs. Moore, well, it looks like from the record as if the reason that was held against the State had nothing to do with her performance. It had to do with the fact that the State didn't give certain records to her, which everybody would agree, if it's true, should be chargeable to the prosecution, which is the State. So we have four periods. In one of them you won; in the second one he had no lawyer at all, according to the court; in the third one you agree it should be chargeable to you; and in the fourth one it has to do possibly with prosecution errors, not defense errors. Now, what are we supposed to decide? Are we supposed to decide whether my statement is, in fact, a correct statement? If so, why isn't it? I guess we have to read the record. But what else is there to decide?
Christina Rainville: I think you can decide it without reviewing the record, based on the fact that you have a defendant who fired his first lawyer six months into the case, one day before trial.
Stephen G. Breyer: And you won that.
Christina Rainville: And then filed -- fired a second lawyer when the lawyer initially argued and said, no, no, it's not true, I've been working; he then threatened to kill the lawyer. Then he at that time was told: If you want a new lawyer, there's going to be inevitable delays. He said: That's okay, I still want to fire this lawyer. Then he went on and fired yet another lawyer.
John G. Roberts, Jr.: I suppose -- I'm not sure that we necessarily want to get into the particular details of a very complicated record, but there are several points in the Vermont Supreme Court opinion where it says that the failure of assigned lawyers to do anything to move the case forward is attributable to the State. And I thought the fundamental principle we were debating is whether or not assigned lawyers who fail to move a case forward, whether that is attributable to the defendant or whether it is attributable to the State because they happen to work for the State. And I would assume one way to dispose of the case would be to decide that general question and send it back for the Vermont Supreme Court with that guidance that they were wrong, as a general matter, to assign delay caused by the counsel to the State, to sort through the record themselves.
Christina Rainville: And I think that's a very important point, Mr. Chief Justice.
Stephen G. Breyer: Is that point in the case? Where -- where is that in this case? I don't know who -- I didn't see anywhere where the Vermont Supreme Court said anything, said that, except in the instance where you agreed with them. Where is it in their -- where is it -- who are they are referring to when they said that? Is that Donaldson? Because I thought the claim with Donaldson was it -- it was not his attribution, nothing he did was attributed. Rather, it was the State's failure to appoint anyone, because to appoint Donaldson was to appoint no one since he had left the office and since he did nothing. Now, is that what we're supposed to decide: When a State appoints a person who has already left the office and does nothing, under those circumstances is it correct to attribute to the State their failure to appoint anybody?
Christina Rainville: Well, first let me address this point of two lawyers who did little or nothing. In Strickland v. Washington, this Court said how extremely important it is when determining ineffective assistance to have a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and that there should be a hearing to ask counsel what they did. Here the Vermont Supreme Court makes this ruling without anyone at any point ever asking Mr. Donaldson or Mr. Sleigh what they did.
Ruth Bader Ginsburg: Ms. Rainville, underneath or between the lines there seems to be great discontent on the part of the Vermont Supreme Court with the way the public defender system is operating. And if we hold for you as a matter of the federal speedy trial right, the Vermont Supreme Court could go back and decide just the same thing under the Vermont Constitution, couldn't it?
Christina Rainville: It could except for that we believe that this decision creates an unconstitutional situation in creating two different classes of defendant, indigent and non-indigent, in their speedy trial rights, such that henceforth the prosecution and the courts must treat every indigent defendant differently merely because they're indigent when they ask for a continuance or when they ask for change of counsel. We have to oppose those. So that we make the unpleasant choice of the constitutional due process violation, that we would rather push a defendant who's indigent to trial before his counsel's ready, because the constitutional violation there is only one of due process and he'll get a new trial, versus agreeing to allow their counsel to have time to prepare, in which case we risk a speedy trial violation, where he will be able to walk free despite his guilt.
Antonin Scalia: Ms. Rainville, you -- you began your presentation with a statement that gave me so much hope. You said you were going to give us three reasons why we wouldn't have to get into the hairy facts of the case and could decide it on -- on issues of law. Okay? You only mentioned the first. What are the other two?
Christina Rainville: The second is--
Antonin Scalia: Remind us of the first.
Christina Rainville: --The first is that this creates an unconstitutional situation where there are two classes of defendants treated differently by the State and by the courts. The second is that the delays in this case were caused by non-State actors and as a matter of law under Polk County cannot be a constitutional violation.
Antonin Scalia: Well, that sort of gets us into the facts at some point. I mean, that does get us into the facts. What's the third?
Christina Rainville: The third is that, based on his concessions, his admissions in the brief, he's waived it; and that's under Barker v. Wingo where the Court talks about standard waiver doctrine applies in speedy trial. And the fourth is that under the balancing test based solely on his admissions, his conduct ought to weigh like a ton of bricks against whatever happened with the State. and I'll reserve the rest of my time if I might for rebuttal.
John G. Roberts, Jr.: Thank you, counsel. We'll hear from Ms. Kruger first.
William A. Nelson: Oh, excuse me.
John G. Roberts, Jr.: Ms. Kruger.
Leondra R. Kruger: Mr. Chief Justice, and may it please the Court: If you look on pages 27 through 28 of the Vermont Supreme Court's opinion, it is clear that the Vermont Supreme Court decided this case on the basis of a single principle that it applied to the entirety of the final two years of the pretrial delay in this case, and that is, as the Chief Justice has noted, that the failure of defendant's series of assigned counsel to move his case to trial should be attributable to the State. As the question comes before the Court today, I think the primary point of dispute is whether there should be an exception to the general rule that a defendant is responsible for his own lawyer's delays in situations in which the lawyer purportedly does little or nothing to move the case to trial; and for four reasons we think that the Court should decline to create a kind of attorney inaction exception to the general rule. First of all, we think that such a rule would be inconsistent with the role of a lawyer in an adversarial system and would undermine a lawyer's authority to make day-to-day decisions about the scheduling of pretrial proceedings. Second, we think that such a rule would be enormously difficult for courts to administer in practice, because attorney inaction is generally difficult to discern in the midst of pretrial proceedings and the risk of error would be to deprive the defendant of the time that his lawyer may genuinely need in order to prepare an effective defense. The third reason is that it would create opportunities for gamesmanship; it would create incentives for defendants to use the services of their lawyer so long as it suits them, but then to complain later that the lawyer was inactive and therefore they should not be held responsible for the lawyer's delay. And as to the lawyers themselves, it would create an incentive to unreasonably delay, with the comfort of knowing that the worst that would happen is the best possible outcome for their client, which is the dismissal of charges with prejudice. And finally, we think that such a rule would create an unjustifiable distinction between the treatments of appointed counsel and retained counsel in our system.
David H. Souter: With respect to that last point, let me ask you this question. Let's assume we -- we have paid counsel in a criminal case and, as a result of -- of delays by the prosecution, but primarily as a result of requests for continuance after continuance after continuance, the -- the case is not tried; it's a simple case and it's not tried for three years. Is -- is it open to a reviewing court on constitutional grounds to say that the State has got an affirmative obligation, a non-delegable obligation, to bring cases to trial in a reasonable time? And whether the reason for the failure in this three-year case is because counsel just kept trying to -- to shove it off, or the courts were not diligent in scheduling it for trial, at some point that non-delegable obligation has been violated. Is -- is that a -- a possible constitutionally based position?
Leondra R. Kruger: I think that Barker makes clear that defendants can waive their right to a speedy trial and that indeed defendants will often desire to put off trial as long as possible. I think that in giving proper consideration to the Barker Court's explanation of the nature and purposes of the right, and in particular focusing on the fact that the only possible remedy for the speedy trial violation is a remedy that uniquely advantages defendants and poses substantial burdens on society, we think ultimately a defendant can't escape responsibility for continuances that he has requested through or without the assistance of counsel, simply by blaming the prosecution for failing to object or by blaming the courts for failing to go along.
David H. Souter: Well, what if the -- what if we change the facts slightly. What if the defendant himself never says anything on the record? The only thing we've got on the record are repeated requests by paid counsel for continuances, and then after three years the defendant fires paid counsel and says: I've been sitting in jail for three years awaiting trial, and I shouldn't have to wait that long. The State has failed in its non-delegable duty. Would your answer still be the same?
Leondra R. Kruger: It would still be the same. We think that fundamentally the principal safeguard against that kind of unreasonable attorney-caused delay is the attorney's ethical obligation, which creates a duty in the attorney to represent his clients with reasonable diligence and promptness. We think that a rule that would require--
David H. Souter: Lots -- lots of very effective criminal trial lawyers believe that the first tactic is delay, delay, delay, delay, delay.
Leondra R. Kruger: --And I think it's precisely for that reason, because a delay may ultimately be in the client's interest, that this Court should decline to fashion a rule that makes the exercise of the remedy, which is again an extreme remedy that advantages the defendant alone, exercisable at the option solely of the defendant. We think for that reason the defendant necessarily has to be responsible for any delays that are caused either by him or by the person who is appointed to represent him. Again, the ethical duty of the lawyer is to zealously advocate on behalf of the defendant's interests, and if the defendant desires to go to trial as quickly as possible, it's still the lawyer's duty under the ethical rules to try to accommodate that request, while at the same time doing everything he can to prepare an effective defense.
John Paul Stevens: Let me ask you this question about your reliance on pages 27 and 28. If you describe it as delays by the lawyers themselves, I understand your comment as being right on the nose. But I understood part of that to be talking about the situation in which the defender general's office has not performed its duty with sufficient promptness. And would you not agree if there were a period, say, of seven or eight months in which they just didn't get around to appointing a lawyer, that that should be charged against the State?
Leondra R. Kruger: We would agree, Justice Stevens. In this case there were a period of a total of about six months during which the Respondent was not represented at all, and we think in view of the State's ultimate responsibility for providing counsel to indigent defendants, when the State doesn't comply in a timely fashion with that duty, that delay is properly attributable to the State. Although in this case, because the delay was not the product of a deliberate effort to hamper the defense, we think that that period should weigh only lightly against the State; and ultimately, given the other factors at issue in this case, the absence of any actual trial prejudice in particular, we think that ultimately those six months are insufficient to establish a speedy trial violation.
John Paul Stevens: Isn't the prejudice factor pretty much established as long as the guy has to stay in jail during this entire period?
Leondra R. Kruger: I think that that's certainly one form of prejudice, but in the Barker balancing -- in Barker itself, for example, the defendant was incarcerated for ten months during the pretrial proceedings, and the Court nevertheless found that there was no speedy trial violation. We think a similar principle applies in this case. Although incarceration is obviously prejudicial to defendants, in this case there was no prejudice above and beyond that. The Vermont Supreme Court was clear in finding the absence of--
Ruth Bader Ginsburg: Did he get to offset it against the time for the pretrial incarceration?
Leondra R. Kruger: --I am not aware that he did, but this Court made clear in Strunk that getting credit for time served is not an appropriate remedy for a speedy trial violation, that the only possible remedy is again what the Vermont Supreme Court did, erroneously in our view, which is to dismiss the charges without possibility of reindictment.
Antonin Scalia: What would you think of a rule that said where most of the delay is attributable to the defendant, he doesn't -- he doesn't walk? That seems like a reasonable rule. Whatever the delay is, if most of it is attributable to the defendant himself, it is -- it is not a basis for dismissing the indictment?
Leondra R. Kruger: We think that a defendant -- we think that that rule would make a great deal of sense. When a defendant--
Antonin Scalia: That would make it easy to decide this case because the -- the supreme court's opinion acknowledges that most of the -- most of the delay was caused by the defendant.
Leondra R. Kruger: --Well, the Vermont Supreme Court thought that some of the delay was caused by the defendant and didn't charge most of that period to the State to support its finding of the speedy trial violation.
John Paul Stevens: Would you really get by that rule if there were, say, four years of delay and two years and one month was attributable to the defendant and two years to the State?
Leondra R. Kruger: We would think that a court evaluating a speedy trial claim in that case would properly exclude any period that was attributable to the defendant and focus specifically on that period that was attributable to the State in determining whether or not the right was violated.
John G. Roberts, Jr.: Counsel, I'm sure you have gone through the record and, agreeing with Justice Stevens that the periods where there wasn't a contract, the State couldn't provide somebody, do count against the State, but disagreeing with the Vermont Supreme Court that when an assigned counsel fails to move the case forward that is attributable to the State and not the defendant, what's the difference in time?
Leondra R. Kruger: The difference in time is -- I think that the -- as the case comes to the court, the final 11 months of the pretrial delay is not seriously in dispute. I think that Respondent has raised a number of arguments about concurrent causes of delay unrelated to the performance of his counsel. I think that those arguments are not properly before the Court because they fall well outside the scope of the question as to which this Court granted review and because they were neither pressed nor passed on below. I think that leaves the middle 14 months of the pretrial delay. And I think, given the Vermont concession, the Vermont Supreme Court focus naturally rests on the 5.5-month period during which Paul Donaldson represented Respondent. And we think, with respect--
John G. Roberts, Jr.: Yes?
Leondra R. Kruger: --We think with respect to that period, we think that there is no basis for shifting the responsibility for that delay that Paul Donaldson sought before going to trial from defendant to the State because, as Justice Scalia has rightly pointed out, any contract expiration didn't in and of itself end the attorney-client relationship, and Paul Donaldson remained the agent and advocate of his client during that period.
John G. Roberts, Jr.: Thank you, counsel. Mr. Nelson.
William A. Nelson: Mr. Chief Justice, and may it please the Court: I apologize for jumping the gun.
John G. Roberts, Jr.: Sorry to delay you.
Antonin Scalia: But it's not going to get you off. [Laughter]
William A. Nelson: I would like to respond to -- to Vermont's argument about there being no detailed record about why these attorneys left when they left. And I -- I think if they're right, then that augurs a remand, that suggests a remand. But the reason there was no record of those departures is because the courts who presided over those departures never requested an explanation. With Paul Donaldson, the matter was a foregone conclusion. He had no contract. He was going into another line of work. So be it, he's out of there. No questioning concerning Mr. Brillon's complaints about his inaction, his failure to investigate, and so forth; nothing about are you ready to go to trial, what have you done, what have you accomplished, what are you passing on, if anything, to the next lawyer in line, none of that. And with Sleigh, the judicial disinterest, if that's what it was, the judicial silence is even more resounding. Sleigh did not request permission to withdraw. He put the court on notice that he was withdrawing, and this came out of the blue. I don't think there was any heads-up for the court that this was going to happen, although Sleigh had expressed some serious reluctance to take the case and hadn't done anything. He didn't -- he had a filing deadline of April 11th, and he was supposed to file motions on that date, and instead of filing motions he filed this notice of withdrawal with no response from the court.
John G. Roberts, Jr.: What is the -- what is the distinction in your theory of the case between delay and failure -- failure to move a case -- what did -- what did the Vermont case say: Failure to do anything to move the case forward? When do we know that that's attributable to the defendant, and when is it attributable to the State?
William A. Nelson: I think it -- I think it depends on the facts, and I think in each of the -- in the case of each of these two attorneys, the facts are different. With Donaldson, I think the State's responsibility -- the State's involvement in a do-nothing attorney, an attorney who was really a nominal attorney, started from the beginning. It started from the appointment of -- of counsel who had been on contract with the State to perform defense services and was appointed.
John G. Roberts, Jr.: Of course, if the lawyer is a do-nothing lawyer, then I suppose there's an ineffective-assistance claim?
William A. Nelson: Well, it might mature into an ineffective-assistance claim, but there couldn't be an ineffective assistance claim on the record here because, well, ineffective assistance is -- is something that occurs at a trial. And it can't be--
Ruth Bader Ginsburg: It's an anomaly, though, isn't it, that easily might have matured into ineffective assistance? It wasn't yet, but if Attorneys 4 and 5, Donaldson and Sleigh -- if the case were for ineffective assistance of counsel, then the defendant would get a new trial, but here the result is he walks.
William A. Nelson: --That's -- that's a consequence of the speedy-trial clause in Barker and Strunk. A speedy-trial violation happens, by definition, before trial. Ineffective assistance happens, by definition and by this Court's decisions, at trial and can't be determined until after trial. Unless there is -- is a speedy trial right and unless it's going to be enforced, this is the consequence. And that's--
John G. Roberts, Jr.: In the abstract, you have a lawyer who is a public defender or hired as a public defender, and he keeps asking for continuances -- continuance, continuance. How do we tell that that's the State's problem as opposed to what the defendant is doing through his lawyer?
William A. Nelson: --I think at first you would have to assume that the continuances were sought in good faith and -- and for purposes of defense preparation. If the defendant had demanded a speedy trial, as this defendant had an early date, I think the court, looking at -- at a continuance motion, would have to look at it in that light.
Samuel A. Alito, Jr.: Well, what is the trial judge supposed to do? The defense attorney keeps asking for continuances for purposes of investigation. I need more time to investigate. If -- and -- and -- can the court say: You need to tell me exactly what you are doing?
William A. Nelson: I think, Justice Alito, that a court -- when a defendant has demanded a speedy trial, that a court does have some obligation to -- to supervise, to monitor, to -- and -- and it happens all the time in criminal courts. What have you done? Have you seen your client? What -- how much time do you need for these motions? When are you going to be ready for trial? That happens all the time. And as the -- as time goes by, as the months pass and -- and become years, I think a court's granting of continuances has to be more grudging. The courts are under a duty because they have a duty to assure the speedy-trial right. Because they are the -- they are the primary actors in that, the court has a duty to be--
Samuel A. Alito, Jr.: Aren't you giving the attorney a very perverse incentive there? I mean the delay may help the ultimate outcome of the case, and if the -- if the defense attorney can engineer enough delay, he or she may also produce a speedy-trial violation.
William A. Nelson: --Well, I -- yes, of course, that's a -- that's a problem, and it's a problem that was recognized by Barker, and -- and it's a problem that -- that courts are well equipped to handle. They -- courts are able to and commonly do. In fact, it's their pretrial business -- main pretrial business to -- to set that line to make sure lawyers adhere to them and make sure that the case goes to trial. They -- courts are well equipped to deal with that. But I -- I would like to point out that your hypothetical is not this case. That we are not dealing here with delays that were caused by continuance motions. In fact, if you look closely at the record, trial dates were not pushed back by continuance motions in this case. Trial dates were pushed back by attorney inaction and withdrawals.
Samuel A. Alito, Jr.: And by your client firing the first attorney, correct?
William A. Nelson: My client -- that's correct. My client fired -- fired the first attorney, which -- which the State says was the bad act. But look at the record of that firing. It wasn't really a firing, of course. He had no right to fire assigned counsel. But he had just heard his lawyer telling the judge, I'm handling 150 odd cases, I cannot be ready for trial, give me more time. I -- I -- I could be ready maybe in March or April, but I can't be ready now. And that was like three or four days before trial. And I would submit that any client, hearing his lawyer making those representations to a judge, would have been very upset and would, in fact, have wanted another lawyer.
Ruth Bader Ginsburg: But knowing that the new lawyer would have to start from scratch, from the beginning, so it was going to take more time. If he got a new lawyer, it was going to take more time than if he stayed with the lawyer who was already acquainted with the case but just needed a few more weeks.
William A. Nelson: Well, yes, but the lawyer who had been appointed wasn't going to get those few more weeks, and as Mr. Brillon said to the court, I would rather do it right the first time. Being charged with a life imprisonment offense, one can hardly blame him. Yes, he had to make a tradeoff, but he had to do it because his lawyer was not ready. Now, we argued in the Vermont Supreme Court that that time could not--
Antonin Scalia: Excuse me, is that the proper remedy? I mean, it seems to me he should appeal to the judge and say, look, this lawyer -- is -- is that the way you solve the problem of -- of an attorney who is not ready, like fire him so you can get another attorney? That seems to me very strange.
William A. Nelson: --Counsel. Counsel moved for -- moved for a continuance on February 22nd.
Antonin Scalia: Right.
William A. Nelson: And--
Antonin Scalia: And from what you told me it should have been given, right?
William A. Nelson: --Pardon me?
Antonin Scalia: From what you tell me, it should have been given if indeed he was unable to prepare adequately for the trial?
William A. Nelson: I believe so. The judge took a different view. It was fully argued. The judge was the only one who had -- the judge was the decider on that one, and she said no. You don't get it.
Ruth Bader Ginsburg: Well, wasn't there a concern about this defendant trying avoid a particular judge? That's why he wanted the continuance?
William A. Nelson: The -- the State made that allegation, and it made that claim here. No court has found it. The Vermont Supreme Court found the opposite. The Vermont Supreme Court held that Brillon fired or asked for the dismissal of his first lawyer because he was not prepared to go to trial, which seems like an ample, sufficient and supported reason for the action he took. That explains the case.
Ruth Bader Ginsburg: Not only did the Vermont Supreme Court make that finding, it does not hear the witnesses, it -- it has a record before it. I can understand if you're talking about a finding made by the court of first instance, but the Vermont Supreme Court is reviewing a record, it's not making findings.
William A. Nelson: That's -- that's true, Justice Ginsburg. The trial court, however, also didn't make that finding, although it was asked to. And, in fact, I think any such finding would be entirely speculative. It would require the court, the fact finder, to interpolate various happenings that are not of record, and that we say never happened. It would require us to assume that Brillon told Ammons, I want you to move for a continuance on whatever grounds you can think of, but the real reason is to get rid of the judge. And that Ammons would do that for his client, and, you know, for the ostensible reason that he presented to the court, namely, he was overloaded and not prepared to go to trial, his secret reason was to get rid of the judge. And I think the record doesn't warrant that kind of inference, especially since it's been presented to and not accepted by the State courts.
John G. Roberts, Jr.: This is not an unusual reason for criminal defense lawyers in the private sector to ask for a continuance. It's quite common for the lawyers to go before the judge and say, look, I've got this other case going to trial next week, I've got this and this, can I get more time, and judges give them the first two but not the third. And why in a case simply where you're dealing with a public defender do you presume the opposite and blame the State for what's a quite common practice in the private part?
William A. Nelson: Mr. Chief Justice, I -- I'm only saying that this -- on this record, the conclusion that that was what was happening, which would be significant if the court were then to say, and therefore, it was done by the defendant who wanted delay despite what he said, and therefore, this is time considered waived under Barker. There is no basis for that finding.
John G. Roberts, Jr.: My point is, I guess, how do we tell? I mean, if this is normal -- I think it is normal, I think it's quite unusual for a defense lawyer to be prepared to go to trial the first time the trial date is set. If it is normal, how do we tell?
William A. Nelson: Well, actually, this wasn't the first -- the first request for a continuance, Chief. Ammons had moved for a continuance before, and it had been denied.
John G. Roberts, Jr.: Yeah, but -- again, I assume that's -- there are probably cases in the private bar where that's true as well.
William A. Nelson: How does one know? I think one -- I think what makes a major difference here is that Brillon had demanded a speedy trial. He had done so long before Ammons' motion for a continuance. He had done -- he did so almost every chance he got at almost every court hearing. You could, and I think the State does, assume that this was all tomfoolery and an attempt to manipulate the court, but there is nothing in the record to suggest that. That was the debate between the majority and the dissent at the State court. The majority won. As in Doggett, the -- the State is now coming back and trying to refight here an essentially factual issue which it lost in -- in the courts below.
Stephen G. Breyer: What about Donaldson and Moore, those two periods? Those two periods, the Donaldson period and the Moore period, seem, as far as I can tell, which isn't that far, they seem to be periods when the State -- when the court below was saying that all that happened here was that the lawyers who were appointed, did a very bad job. You can't say they weren't appointed. It isn't that he didn't have counsel. He had counsel, and they just didn't do very much. Now, why should that be accounted against the stayer? Is Moore special? Was there really a problem of prosecutorial behavior? Is Donaldson the same as Sleigh? I don't know.
William A. Nelson: Let me start--
Stephen G. Breyer: Is Donaldson a case where they -- is equivalent to having no lawyer? I don't know how to deal with it.
William A. Nelson: --Let me start with Donaldson, and I think in answer to your question, I don't think Donaldson is substantially different from Sleigh. I won't go over the circumstances of Donaldson's appointment, but once he was appointed, he began conversations with the defender general about getting off the case. And I think the sense -- and -- and a significant fact about those conversations is that the defender general told Donaldson he was going to be replaced. We don't know exactly when that happened, but he told him he was going to be replaced with someone who was more competent, more qualified to deal with a life imprisonment case. So this is not information which will light a fire under a lawyer to prepare a case, that he knows he's not going to try. Donaldson then asks for time. It's the only request he ever made of the court. The court gave him time and set filing deadlines, and he missed them. Missing those deadlines should have been a red flag to the court in a case that was already over a year old. The court let those deadlines pass without a word. The court also said, we're going to try this case in October. Get ready for trial in October. Everything should be filed by September 23rd. And for a reason, which the record has no explanation for, the October trial never happened. Donaldson was still on the case, his name was still on the case, and the October trial date passed without a murmur. It was not until late November that Donaldson came to the court and explained the situation. Now the court -- I think the defender general failed in his responsibility with regard to Donaldson. That's State involvement. The court failed in not noticing the -- the missed deadlines and in allowing the trial date to pass without a trial; and I think the Court also failed in its duty in allowing Donaldson off the case, which rendered any catch-up time that he had to do pointless, without any inquiry at all. The court, it's clear from the record, deferred entirely to the defender general, and so I think the Vermont court on that record thought that there was enough State involvement here to charge -- to find the State responsible and to weigh some of that responsibility against the State. The court--
John G. Roberts, Jr.: What does your -- your argument do to the fundamental and I think quite vital principle in Polk County that public defenders work for their clients; they don't work for the State?
William A. Nelson: --It does nothing to Polk County, and we acknowledge that -- that Paul Donaldson's inaction by itself, if it had nothing to do with the State, if the State did not involve itself or condone -- if the State had no responsibility with regard to that time, the State would have no responsibility under Barker. That's perfectly clear, and I don't think the Vermont Supreme Court's opinion, fairly read, fairly read says anything other than that. The Vermont--
John G. Roberts, Jr.: Well, I guess fairly read, it does say the failure of several assigned counsel to do anything to move the case forward is attributable to the State, because they didn't do anything, I guess is the touchstone.
William A. Nelson: --Well, I think I have two responses to that. One is that in the context of the rest of the opinion, what the court was talking about was a breakdown of the system, and the focus was on two actors, both State actors, the assigning agency, the defender general, and the court and I don't think there's any dispute that both of those are indeed State actions, and that delays which can be traced to them, which they have a hand in, can be weighed against panned the State under Barker.
Antonin Scalia: But it doesn't say that; it really does say most of the delay was caused by the inability or unwillingness of assigned counsel, not of the -- of the institution that appoints them, unwillingness or inability of assigned counsel to move the case forward. That looks to me like--
William A. Nelson: I think -- elsewhere in the opinion, Justice Scalia, I think the court is clear that -- that they were faulting the defender general, and to a lesser extent the court. I think we are putting more stress on the court's nonfeasance than the Vermont Supreme Court did, but in fact, the time adds up to the same. The time, we're talking 14 months from Donaldson's assignment until Moore's assignment in August.
John G. Roberts, Jr.: Do you agree -- just following up--
William A. Nelson: Okay.
John G. Roberts, Jr.: --I'm sorry. Just following up on your latest answer, do you agree that it has to be a systemic problem? I mean, you gave us that -- the situation where the lawyer says I've got 150 cases, I need a -- need a continuance. What if there's none of that? They've got, you know, 500 public defenders, and the -- but the guy still delays. He's responsible for not doing anything to move the case forward.
William A. Nelson: Well--
John G. Roberts, Jr.: Is it still attributable to the State?
William A. Nelson: --I don't think -- I don't think the result depends on there being a systemic problem. I think in this case there was a systemic problem, and the Court knows about that from the findings of the indigent defense task force, which--
Anthony M. Kennedy: But the Chief Justice's question, I'm interested in it as well, are there instances in which a State-appointed counsel can delay and have that not attributed to the State? Is it always attributed to the State--
William A. Nelson: --No.
Anthony M. Kennedy: --Just because he's State--
William A. Nelson: Absolutely there can be situations like that, where there is no--
Anthony M. Kennedy: --There is a delay, but it's not attributable to the State.
William A. Nelson: --It's not attributable to the State, it's attributable to counsel. And just the same as -- just the same as for private counsel. We're not proposing a two-tiered system there. We're--
John G. Roberts, Jr.: Well, when is that? The -- you have the same situation, the defense counsel appointed by the State does nothing to move the case forward, that's as I understand it the Vermont Supreme Court touchstone. When is that attributable to the State and when is it not?
William A. Nelson: --It would not be attributable to the State if the assigning agency was -- had no fault, had no supervising duty that it failed to perform, that the lawyer was essentially on his own or her own; and it would also assume, I think, if the delay went on long enough, that there was no fault in the court in failing to--
John G. Roberts, Jr.: Well, I--
William A. Nelson: --to notice that nothing was happening.
John G. Roberts, Jr.: --It does sound to me, then, that you're saying there has to be some systemic problem, that the rule that I understand the Vermont Supreme Court to have adopted, that when assigned counsel does nothing to move the case forward, that that's attributable to the State, you would disagree with? You would say no, there has to be a systemic problem, not the -- not just the individual lawyer, but they're not assigning enough defenders, they're not supervising them, whatever.
William A. Nelson: Maybe I'm not using the word systemic in the same sense you are. All I would say is say is it doesn't have to happen to a lot of people, it could happen to just one person, but it would only happen to that one person if a public, State agency was responsible for the delay.
Samuel A. Alito, Jr.: What if you have a situation in which the -- an attorney is appointed, the defendant threatens that attorney, the attorney withdraws. A second attorney is appointed, the client threatens that attorney, the attorney withdraws, and then thereafter a new attorney is pointed, and there is great delay. Maybe more -- two or three attorneys are appointed. There's great delay. Is -- does the -- does the chain of events that started all this get taken into account or do you just start counting the time from the appointment of the last attorney who wasn't threatened?
William A. Nelson: I think you can't ignore what happened before, but you can -- but -- but if what you're saying or suggesting is that earlier bad actions result in a forfeiture of speedy trial rights, I would disagree. The way you -- the way it matters is that by firing, threatening, unjustifiably getting rid of a -- of a lawyer, you require the next lawyer to spend some time getting up to speed on the case. And that time--
Samuel A. Alito, Jr.: What if a small -- I don't know how many lawyers are available for appointment in Bennington. What if it's a small jurisdiction where there aren't that many who are available to be appointed? And so you fire the public defender, you threaten the first appointed counsel, and pretty soon you don't have very many left, or the ones that you have left are busy with other cases and delay results.
William A. Nelson: --But that's not the case here, and I think my answer to your question is that what makes this a State response -- failure of responsibility is that the State had the ability to do something about it. If the State's hands are tied, if they run out of legal talent, if there's no other way to get counsel on the case than by a broken-down contract system, which was not the case--
Ruth Bader Ginsburg: What about the point that Ms. Rainville made? And she talked about this balancing that comes out of Barker, and she said you have to weigh against the defendant very heavily, the episodes with lawyer number one and number three, because that was really bad stuff. The State is perhaps responsible for some of the other delays, but she called those "neutral" in the weighing process. Don't those two episodes, counsel number one was fired, counsel number three, who says his life was threatened by the defendant, don't those have to count very heavily against the defendant?
William A. Nelson: --Justice Ginsburg, I don't think that Barker works that way. I think what Barker says is that time which is attributable to the defendant gets subtracted from the total delay; that that's not considered. That the rest of the time is a period which the State has to account for; and there are -- there will be segments of that time, segments of that delay which are nobody's fault, and those delays would in fact be truly neutral in the sense of they would have no weight against the State; and there are others that would count more or less heavily against the State. So I think the effect of what went on with Jerry Altieri, which I think was not much more than two months of the total time that he was on board, I think the effect of that is to subtract that period, and then any catch-up period that his firing or his dismissal required, subtract that period as well from the total, and weigh the rest more or less heavily or perhaps not at all against the State.
Ruth Bader Ginsburg: Well, the rest, I couldn't find in his final counsel's representation -- I didn't see anything in her representation that would suggest any lack of diligence on her part or any reason to count that in the speedy trial calculus. That runs from August 2003 to June 2004.
William A. Nelson: To June 2004. That's correct. I -- I think that the opinion is not clear as to how much responsibility the Vermont court attributed to the State for that period. Vermont says they charged every second of the -- of that time to the State, and it's quite clear from the opinion that they didn't. They said that most of the remaining two years, as of Donaldson's appointment in June of '02, was attributable to the State. It's not clear how much of that time or if they actually counted it. I think that any precise calculation of that time period is impossible. We argue, and the record supports, that much of that time had to do with Ms. Moore getting files together, not only from predecessor counsel but from the State, and that the State delayed for many months in providing an updated witness list with current addresses. She needed that to interview the witnesses. The case was old, and she needed the State's help there, with other discovery material which the record shows -- it's not in the joint appendix, but it is in the printed case, which was essentially Vermont Supreme Court's equivalent of an appendix. These materials were at issue for Moore. She needed them. The prosecutor was dilatory in providing them. And I think that that's a kind of vanilla reason to attribute some of that time to the State.
John Paul Stevens: Mr. Nelson--
William A. Nelson: The court was also--
John Paul Stevens: --what is your judgment on how much time all together was attributable to the State?
William A. Nelson: --I think 14 -- I think the Vermont court was clear about the 14 months from Donaldson through Moore, including the six months of no counsel. It adds up to 14 months. And then the rest of the time I don't think you can put a number on. Maybe it's not time that we're trying to add up, but responsibility. And what the -- what the State court was saying was when a case is as old as this one was when Moore took it over, the court should be very vigilant and grudging in its grants of continuances, and the case could have been tried sooner than in eight months.
John G. Roberts, Jr.: So your 14 months, just so I understand, that includes the August 2003 through June 2004, when Moore was representing him?
William A. Nelson: No. The 14 months goes from Donaldson on June 11th, 2002, through Moore's appointment in August 2003. Thank you, Your Honor.
John G. Roberts, Jr.: Thank you, Mr. Nelson. Ms. Rainville, you have a minute remaining.
Christina Rainville: Very quickly then, Justice Ginsburg, the answer to your question, he did receive credit for his time served. The important distinction that the questions raised show, what's so fundamentally wrong about this case, is the distinction between Strickland. There you ask the lawyers what they did. They're given deference. They're given the right to defend themselves. And if you prove that it would have had an effect on the outcome of the case, the defendant gets a new trial. Here the lawyers are never asked, no presumption is given, and the defendant is allowed to walk free for the rest of his life. It's fundamentally wrong. Letting a defendant walk free from a crime is an extraordinary remedy that should only be given in an extraordinary case, and that case is not this one. Thank you.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.


Earl Warren: Number 69, Safeway Stores, Incorporated, Petitioner versus Harry V. Vance, Trustee in Bankruptcy for Frank Melvin Thompson, Bankrupt. Mr. Tittmann.
John B. Tittmann: May it please the Court. This case involves the same issue as the one which has just been argued. The Court of Appeals of the Tenth Circuit held that a private litigant did have a remedy for treble damages in diametric opposition to the decision of the Court of Appeals of the Seventh Circuit which was the source of the case you have just heard.
William J. Brennan, Jr.: Excuse me, Mr. Tittmann. Was the basis for the action against Safeway the same last clause with Section 3 that was the case against Nashville?
John B. Tittmann: No, Your Honor. In addition there was an allegation of territorial discrimination sales in one part of the United States at a different price than sales in another part of United States.
William J. Brennan, Jr.: Now, is that also covered by Section -- amended Section 2, that claim also become a complaint (Voice Overlap) Section 2.
John B. Tittmann: Conceivably but the compliant was not laid on a violation of Section 2 as amended by Section 1. It was limited in the first amended complaint to charge a violation of Section 3 of the Robinson-Patman Act. And the way the case arose, there's a motion to dismiss that was filed on the ground among others that no private remedy was available because it was not one of the antitrust laws embraced in the definition in Section 1 of the Clayton Act. The District Court sustained and dismissed on that ground alone without passing on other grounds presented. And the Court of Appeals reversed holding of course that the private remedy did exist. I realized that the issue has been already discussed in brief presented. I mean the difficult position of not wishing to repeat anymore than I have to. I --
Felix Frankfurter: -- before you involve on this substantive discussion to carry out Justice Brennan's question, Am I to inter -- are we to infer that your answer to his question is that (Inaudible) this arises under Section 3 like (Inaudible).
John B. Tittmann: Your Honor, my answer that I would not personally want to take the responsibility of inviting in amendment to the pleading but I think in fact it could be laid under Section 2 (a).
Felix Frankfurter: I mean it raises that -- it creates a new problem and that --
Speaker: It has not yet been so laid.
John B. Tittmann: It has not yet been so laid, Your Honor and it was so laid in the Mead case which I'm sure you will all recall. The allegation was both a violation of Section 2 of the Clayton Act as amended and of Section 3.
Felix Frankfurter: Well, is it fair to say that the cases before us on the pleading, leaving one side the problem that was amended, it is a Section 3 case.
John B. Tittmann: It is purely a Section 3 case on the pleadings now before this Court and has so been treated both by the court below and by counsel. I would like to address myself briefly to the reasoning of the Court of Appeals of the Tenth Circuit and for your information, the prior authorities which were available to that court and also the court of the Seventh Circuit. The decisions on this question in the District Courts were very limited. There are only two outstanding. Our Court of Appeals relied upon Judge Yankwich's decision in the Balian Ice Cream case in California which was cited in the briefs. Adapted its reasoning and based its decision on that wholly. After that decision, our District Judge, Judge Rogers analyzed that case and decided contrary specifically and our Court of Appeals overruled him but the Court of Appeals of the Seventh Circuit relied on Judge Roger's decision. So we have two conflicting District Court decisions and they are the only ones of any importance because they are the only ones that analyze or attempt to analyze the problem and two conflicting Circuit Courts. Now, all of those courts had assumed that the position was sound that the definition of antitrust laws as used in Section 1 of the Clayton Act was exclusive. Judge Yankwich, as well as our Court of Appeals took that position so that any litigant trying to recover for a violation of Section 3 alone of the Robinson-Patman Act have to somehow establish that it was one the antitrust laws for which the Clayton Act in its Section 4 created the treble damage remedy. Otherwise, they were faced with the problem that is I think well accepted law if our Congress creates a new offense and fixes the penalty, that is the penalty and unless a violation of Section 3 can be brought within the definition as being an antitrust law defined. There is no private treble damage remedy. The remedy is exclusively to criminal, fine and imprisonment provided for in that Section. Now to do that, Judge Yankwich and our Circuit Court, talked about whether it amended or not and used that term in a very broad sense of whether it is generally in antitrust field. Whether it adds something to the congressional effort to control monopoly and to regulate restraints against commerce and we submit that one of the fallacies of both Judge Yankwich's decision and our court, is if they are using a term, which I think Mr. Justice Frankfurter suggested. It is not helpful because its only use is to by calling something amendment you therefore assume that it is within the definition and the argument that if this amends, it automatically -- Congress automatically intended it to be within a definition and therefore to have a treble damage remedy, we think solves the question by assuming the answer and that the answer must be found in Congress' actual intention regardless of the term amendment as to whether a violation of this Act should have a private treble damage remedy. And we submit that the entire course of the Act that it was adapted. The actions of Congress in other examples subsequently indicate that it was not that intention. I do not want to review again the legislative history. I would be repeating mostly what Mr. Williams has said but I would like to point out that this question of whether there is treble damage remedy for violation of Section 3 was before Congress and was discussed on the floor but only in this sense. Representative Celler was opposing the bill because he believes the penalties were too strict. He did not want a criminal penalty on the businessman for the same Act for which he is subject to treble damages, an Act by the way that is common, can be common competitive practice selling at a lower price and to become the very malodorous criminal activity that Section 3 seeks to reach. It has to be characterized by some very bad purpose and the purpose can be a matter of degree so it is a very vague and indefinite offense in that sense. But every time in Congress when the question of treble damages for violation of Section 3 occurs, it was always the same act of discrimination, the same act of discrimination can violate both. Now the first clause of Section 3 deals with discrimination in illegal discounts and the discounts, and the quantity discounts and the discrimination in price were what Congress was concerned with and there is no where any discussion or even adverting to sales that are unreasonably below prices for the purposes of injuring competition and what that might mean.And nowhere is there an indication that Congress intended that if a man sold in unreasonably low prices for the purpose of enduring competition which by the way is this Section 3 as its ancestor in the Canadian criminal code that has been dictated in the brief that nowhere do they indicate that that type of thing is going to be subject to a treble damage remedy. Now, that -- the failure to realize or the failure to specifically bear in mind that the same act, same violation which could create both remedies, was always a discriminatory act prohibited by both Sections. The -- the same matter is referred to by this Court in the opinion of Bruce's Juices in which case the purchaser of cans was seeking to avoid the payment of the balance due because of the fact that he only received a 1% discount for buying 500,000 cans a year or $500,000 I believe whereas some of his competitors received the 5% discount for buying a million or more, whatever the figure is. This Court in the opinion made a remark that a violation of the Clayton Act and Robinson-Patman Act created a remedy, civil remedy for treble damages and did not distinguish. Well, it's true that if in illegal discounts where an illegal discrimination would violate both Acts. The violation would bear treble damage remedy but not under Section 3 as such. That case is of course cited as authority for the position counter to ours and we take the position that the remark was not necessary to the decision in that case in its dicta but again, as illustrative of the danger of not distinguishing between the act of discrimination that violates both Sections and whether or not a civil remedy is created by both Sections. That opinion pointed out that the violation that it referred to had to have two sales. Well that's not true. That's true with the discrimination but it's not true of Section 3 because Section 3, under the last clause, could have one sale at a tremendously unreasonably low price for the purpose of destroying competition in that area and that would be it. Therefore, we believe that the problem presented to this Court cannot be solved by the use of mere words such as amendatory. I don't think it's a good tool. It's what Congress actually did in enacting his legislation and that also present --
William J. Brennan, Jr.: Mr. Tittmann, Is there any -- anything indicated in the history why there should be this overlap?
John B. Tittmann: That is a difficult question, Your Honor. I might point out that in the remarks or even on the Florida House. One of the Representatives was objected to combining these two Acts and that's what Congress did. They combined two Acts. He was willing to vote for Section 3 alone but he was not willing to vote for them in the same bill. And his characterization was that this is a hodge-podge. He further indicated and I think I'm close enough to quote him. The courts will have the devil's own time resolving the inconsistency. What happened was that the Patman bill was introduced. The Borah-Van Nuys language was rejected by the House but included in the Senate. You had in effect two Acts separate and distinct, attempting to reach generally the same purposes and the Borah-Van Nuys language was left in to get an Act. And I think it was Representative Patman who's testifying before a congressional committee on this very subject in 1950. It's the language in citation that's here in the brief, he testified before the committee that Section 3 was included just for that very purpose to get a bill and that it had never been carried as one of the antitrust laws and that in his opinion it should be and that he hoped in 1950 that Congress will do something about it and amend Section 1 of the Clayton Act to specifically include it. I would like to advert briefly to the opinion in the Tenth Circuit. The basis -- one basis of which was and again they were using this word amendment, which I do not consider it very helpful method of solving the problem. But they took the position that the Robinson-Patman Act in its entirety amended the Clayton Act, therefore was in antitrust law, therefore treble damages. But the reason they took that was that there was no enacting clause in the Robinson-Patman bill other than at the beginning and the opinion in the Tenth Circuit appears in the record beginning at page 32. They base there wholly in part anyways on the fact that bill only had one enacting clause is hereby enacted that Section 2 of the Clayton Act is remanded to read as follows. And that since they didn't have an enacting clause on 2 and on 3 and on 4, that 2, 3 and 4 under one enacting clause therefore had to be an amendment as characterized in the enacting clause. It is significant I think that no other Court has ever used that ground. It may be significant that no counsel in this litigation anyway has attempted to rely on it. The answer I think is to be found in the brief of the Carnation Milk Company in the previous case that the enacting clause of any bill in Congress, the form of it is set by law and it only includes, be it by Senate Congress and simply or something be it enacted. And the enacting clause form of it does not contain the purpose of the Act so that that particular ground of our Court of Appeals decision, we submit, is without any foundation and particularly because in addition to fixing the form of the enacting clause, the laws, Congress has adapted specifically provide that it shall only appear once at the top. I mean it is not permissible as a matter of congressional form to have an enacting clause preceding every Section. Now --
Earl Warren: You simply attached no significance at all to the fact that they referred to that is an amendatory act --
John B. Tittmann: Your Honor, I submit that no -- that it is not at all significant. The amendatory Act that was temporary -- that Section referred to temporary legislation. One Act maybe generally amendatory of another but it does not help to determine whether Congress intended to give a treble damage remedy for its violation. It's our position.
Felix Frankfurter: Mr. Tittmann, why didn't the -- the title of the Act is an Act to amend Section 2 of the Act?
John B. Tittmann: I think -- pardon me.
Felix Frankfurter: Robinson-Patman Act doesn't say to amend the Clayton Act to its entirety just as to amend Section 2 and then it goes on, it's amended to read as follows. That's could be logical common place wherein which Congress legislates.it does it all the time that way?
John B. Tittmann: Well that is our contention, Your Honor that that is a far more reliable method of determining what Congress did than to try to use the phrase amendatory and thereby bring something in that is not the Congress obviously didn't. I think that's pointed out by Judge Duffy in the opinion in the Seventh Circuit where he points to the common practice of Congress to do just that to emphasize or perhaps elaborate, Mr. Chief Justice, your question by the same token. If you want to use amendatory in the sense of relating to a subject matter, you can make just as strong an argument that Section 5 of the Fair Trade Act was amendatory prohibiting unfair methods of competition. You can make the same --
Earl Warren: Did the -- did that Act say it was amendatory of the other Act?
John B. Tittmann: No --
Earl Warren: Well --
John B. Tittmann: It -- it did not.
Earl Warren: That's the only difference to --
John B. Tittmann: Oh the -- the question they use the word.
Earl Warren: Congress itself used the words. They are not my words. I just --
John B. Tittmann: I understand.
Earl Warren: -- that throughout this Act, they used the words “this amendatory Act.” Now, but you -- I think you've explained your position and you said you tested no significance to it so I understand your point.
John B. Tittmann: All right. The other point to which I would like to address myself briefly is the authorities or some short discussion of the authorities that have previously been decided in -- to mention with this question or if they bear on it.
Earl Warren: We'll recess now Mr. --