Earl Warren: Number 100, Peter H. Klopfer versus North Carolina. Mr. Penny.
Wade H. Penny, Jr.: Mr. Chief Justice and may it please the Court. This case is before this Court on writ of certiorari to the Supreme Court of the State of North Carolina. That court in a decision rendered in January of this year held that the State of North Carolina acting through its solicitor and the trial court made by procedural device known under North Carolina law as a nolle prosequi with leave permanently and completely deprived by criminal defendant of his day in court. At this point, I would like to emphasize that although discussion of the right to a speedy trial normally proceeds from a concern with what is an unreasonable delay. Here, the State of North Carolina takes the unprecedented, we submit, view that the state may permanently and completely deprive a defendant of his day in court and in doing so repudiates the basic principle of our system of law that every man accused to crime regardless of the degree of the offense or its seriousness, regardless of his station in life is nevertheless unequivocally entitled to his day in court to establish his innocence and with the opportunity to secure his exoneration. At the outset, I would like to emphasize that this petitioner's contact with the State of North Carolina is no frivolous skirmish. This defendant was first indicted in February of 1964 for the grand jury of Orange County upon a bill of indictment charging him with trespass which under North Carolina law is punishable both by a sentence and fine or either one of the two. Pursuant to that bill of indictment of February this defendant was brought to trial at the special criminal session in March of 1964 and after a lengthy trial the jury was unable to agree whereupon this defendant was then directed to appear in court on the following Monday. However, no further proceeding was taken in March with a crowded criminal docket at that time in Orange County for one reason or another. The case although it appeared once or twice on the criminal docket there was no further trial proceeding and then in the spring of 1965, counsel for the petitioner inquired of the state as to what the state's position in this case would be in the light of the passage of the 1964 Federal Civil Rights Act and even more in point this Court's decision in Hamm versus City of Rock Hill applying that act retroactively. The Solicitor indicated as the record shows that he intended to take what is known as is nolle prosequi with leave. In April of 1965 when this case was once again on the docket of Orange County Superior Court, this petitioner through his counsel appeared in open court and objected to that procedural point being taken by the State of North Carolina and entered in the record. The court animated at that time that it agreed with the state that it might have the nolle prosequi entered. Then the Solicitor having a change of heart decided that he wanted the case back on the trial calendar right at that moment in open court. Now, the next session of the Orange County Superior Court then occurred in August of 1965. Prior to that session of court, it was ascertained that this petitioner's case was not on the trial docket and then an effort to bring the matter to some conclusion, petitioner filed a motion in the Orange County Superior Court wherein he outlined the chronology as to the issuance of the indictment and this prior context with the court, and further urged upon the court that he have an affirmative defense to any further attempt to prosecute this case. In that first of all, this prosecution arose out of a set of circumstances which constitute or which where in the course of a civil rights demonstration wherein the petitioner assault service that I placed which he contended in this motion was a place of public accommodation. He referred in that motion to the Civil Rights Act, to his contention that Hamm applied -- the Hamm decision applied in his case and in more particular cited the superior court to the case rendered by this Court in 1965 Blow versus North Carolina applying the Civil Rights Act under the Hamm decision retroactively and pointed out in his motion that the facts in his case where as to the operative facts very similar to the Blow decision. At no point in the record or in this record before the Court that the State of North Carolina ever seriously contend or ever contend at all for that matter that the statement in this motion where incorrect.
Byron R. White: (Inaudible)
Wade H. Penny, Jr.: Mr. Justice White we got a ruling in the sense that at the conclusion of the motion and presentation open court, the state renewed its motion for that an entry being made of nolle prosequi with leave and that was granted.
Byron R. White: (Inaudible)
Wade H. Penny, Jr.: No, Your Honor that they never, the court never attempt to go into the --
Byron R. White: But you never had a rule position on that point.
Wade H. Penny, Jr.: Well the motion act, the motion did not immediately request the ruling on the merits of that contention. What it did request was that the State of North Carolina be directed to proceed in accordance with law and to allow this defendant an opportunity to present those contentions in orderly procedure in the state court, so what we actually asked for a motion was that the judge inquiring to why the State of North Carolina was not willing to give this defendant his day in court in order to urge this point.
Byron R. White: What procedure do you have there to quash an indictment or information on the grounds that it can't go forward because it's constitutionally even? Do you have a motion to dismiss or motion to quash?
Wade H. Penny, Jr.: Your Honor, this question has engendered some discussion among the members of the bars. It's my understanding of the law of North Carolina that a motion to quash cannot be raise in advance of the case appearing in its regular order upon the trial docket.
Byron R. White: So, you have no --
Wade H. Penny, Jr.: And we do not have as my understanding a motion to dismiss and that the defendant on his own motion can move that the court consider his case when it is not in regular.
Byron R. White: So, this motion that you did file can't be considered if the motion to dismiss, did it not?
Wade H. Penny, Jr.: No, Your Honor. It is not, it is a motion to request the Court to make effective the petitioner's right to be heard in open court in regular proceeding.
William J. Brennan, Jr.: Let's see if I understand that. Do you mean that in some formality about docketing a phase which governs relied to make motion to just doing that?
Wade H. Penny, Jr.: Well, let me explain at this way Mr. Justice Brennan. Normally, a trial judge would not consider any case on the docket. I mean any case pending before the Court unless the Solicitor has placed it upon the docket. Now, at the time that we file this motion our case was pending in the Superior Court.
William J. Brennan, Jr.: But not on the --
Wade H. Penny, Jr.: But was not on the trial docket and we have been put off about that. In April, the indication by the Solicitor in open court being that he was going to proceed to trial this particular defendant, and all that we were saying at that time was we are ready to proceed. We did not ask or demand of the court that they had to put this case on for that such. What we did was the court under its general supervisory jurisdiction to in effect commit the state to a debt in a certain time when they would give us our day in court.
William J. Brennan, Jr.: Does the consequence to the motion or whatever it is now finds the proceeding here. If the consequences of the ex parte action by the case, the key -- the case of its -- the trial docket for such time has insisted it's actually distort has to put it on?
Wade H. Penny, Jr.: Well, if I may I'll briefly explain that procedure in order that the Court can see the context in which we operate. North Carolina allows the Solicitor upon his own initiative as to any case pending in the Court to request the Court that an entry be made either of nolle prosequi which is short in phrase as nol pros in our state or nolle prosequi with leave. Now, the effect of that as the Court has clearly established on our procedure is this, number one, it is not an acquittal if merely relives the defendant from having to attend court from session to session, and secondly releases him from his bond. It in no way is a termination of the action because the Court has explicitly stated that the state may either proceed upon the original bill of indictment at any time or issue a new bill of indictment. Now, the distinction and there is but one distinction between nolle prosequi and nolle prosequi with leave is --
Hugo L. Black: What's your circuit name?
Wade H. Penny, Jr.: Nolle prosequi with leave.
Hugo L. Black: With leave?
Wade H. Penny, Jr.: Now with leave means -- well, I'll put it this way, under a nolle prosequi entry in order for the solicitor to reinstitute the proceeding he would have to first apply to the trial judge and get his consent and a trial judge would issue an order directing the clerk of court to issue a case. But then at that point, they could either proceed -- under that procedure they would proceed on the same bill of indictment or if he did not want that instead of going to the court could request an issue, have a presentment sent to the grand jury. Now under a nolle prosequi with leave and I might say that under our procedure that is the customary entry rather than just a limited nolle prosequi. Under nolle prosequi with leave, the words with leave mean in effect that the court is giving its consent in advance that the Solicitor may reinstitute the proceeding without any further consent from the court he just would merely walk into the clerk's office given the docket number and ask to dictate his issue for that defendant.
Byron R. White: And without any (Inaudible)?
Wade H. Penny, Jr.: Absolutely not.
Abe Fortas: Is any question raise in interstate as to the appealability of the order of the trial court?
Wade H. Penny, Jr.: Your Honor, there were some concern on the part of the petitioner that under our statutory appellate procedure that there might be a question raised. However, there was no question raised either by the state in its brief nor by the Supreme Court of North Carolina.
Abe Fortas: And I don't recall that any -- that question has been raised here.
Wade H. Penny, Jr.: No, Your Honor, it is not raised from the brief here. So, I would assume that the statue in North Carolina which says you may appeal -- only from the final judgment is being construed here to mean that this action by the Solicitor at least as to the facts, the defendant has filed. It's not final as to the Solicitor under North Carolina procedure but it is final as to this petitioner because as the Klopfer case opinion in the state court indicates there is no other procedure now available to this petitioner in North Carolina Court by which to compel the state to allow him to proceed -- to this case.
Potter Stewart: When a nolle prosequi with or without leave is entered, is it open to defendant at any stage to come in and move to dismiss the indictment for failure of prosecution?
Wade H. Penny, Jr.: Your Honor, in effect we may be dealing here as the question has been raised originally with the possibility of semantics actually is my understanding North Carolina procedure we have no procedure equivalent to a motion to dismiss initiating from the defendant it would be under the basis of a motion to quash a bill of indictment.
Byron R. White: Well, is that available to leave?
Wade H. Penny, Jr.: Well, we would contend that is not available under the present legal status of this case because we have no way to get back on the docket and even we owned, I mean even there'd be a question whether this case is even pending in that court now for purposes of directing a motion to the superior court judge.
Byron R. White: When you say motion to quash, wasn't available to you at any kind because it was never on the trial docket?
Wade H. Penny, Jr.: Well, I think -- if we could made a motion to quash at this point --
Byron R. White: You could have made it to the motion to quash under this Hamm or nothing?
Wade H. Penny, Jr.: That's right but I think what we anticipate on the North Carolina procedure the reaction would have been while this case that is premature at this point until the Solicitor calls this case on the docket.
Potter Stewart: If there's no way of getting rid of the case if it requires follow for a 10 years say under nolle prosequi motion there's no way of tearing the case on the docket?
Wade H. Penny, Jr.: Well, Your Honor that's the way I read the -- the court was appearing on because the Supreme Court of North Carolina says that the defendant may not compel the state to give him his day in court --
Potter Stewart: (Voice Overlap)
Wade H. Penny, Jr.: -- even to the limited basis of a motion to quash.
Potter Stewart: Did you try to make such a motion?
Wade H. Penny, Jr.: Not on those words, Your Honor we in open court on the consideration of this motion. I think its clear from the contents of the motion in fact a motion specifically states that to defend the questions whether the state can proceed under this bill of indictment and so what we were saying to the Superior Court is that the question or whether this bill of indictment is valid would require some type of hearing and fact finding at probably preliminary to the actual trial by the court to determine whether the indictment is valid or not and so in our motion we were saying that we're entitled to have our opportunity in court of -- to present that motion. And as I understand the decision of the North Carolina Supreme Court we are not entitled to fail the state to give us --
Potter Stewart: Failure that -- failure to prosecute, the prosecution doesn't want to go forward. There's no way of defendant getting --
Wade H. Penny, Jr.: There's no way that the defendant may on his own initiative raise that question as I understand North Carolina law. Now, that is not to say that he might not use it defensively if 10 years from today the State of North Carolina came back and attempted to the prosecute that within raise the question of whether the state was barred at that point but my contention is that this procedure of North Carolina now indorse by this opinion of the Supreme Court of North Carolina is final as to this petition is not final as to the state.
William J. Brennan, Jr.: What's the legal aspect of --
Wade H. Penny, Jr.: Mr. Justice Brennan, --
William J. Brennan, Jr.: -- the purpose of what that means?
Wade H. Penny, Jr.: We would contend that the under the circumstances in which the state has proceeded particularly after we put the state on notice in our motion that we had not just a question of contesting their evidence but the affirmative defense based upon a federal statue in the decisions of this Court and in there being no show here at any point in the record as indeed it's not required under North Carolina to show those of why there's any reason for delay we contend that the action of the state here was so arbitrary and capricious as to justify this Court in finding that the right to speedy trial applies that it has been unpardonably violated here and that further prosecution is barred in this case because of the deprivation in the constitutional right.
William J. Brennan, Jr.: You want a declaration that this prosecution is (Inaudible).
Wade H. Penny, Jr.: That would be our first and major request.
Abe Fortas: I noticed that, I beg your pardon. I noticed that the brief of the so limit as an amicus makes the argument that it's also involved here violation of the First Amendment because of the continuing deterrent of the nolle prosequi with leave to the exercise of First Amendment rights for speech, you do not make that point, do you -- did you -- you then make it in the Supreme Court of North Carolina neither, did you?
Wade H. Penny, Jr.: No, as I recall our brief did not stress the First Amendment point that it is referred to in our brief in this Court.
Abe Fortas: Well, it is?
Wade H. Penny, Jr.: Yes, Your Honor, appearing up on page 18 in the last paragraph on that page. We point out that under the facts of this case where a trespass charge arises out of this defendant's effort to change what is a prevailing attitude in the community where in this case arose or at least was so the prevailing attitude of the time of this case that the inevitable effect of the nolle prosequi with leave now is to leave his future status under this charge completely open the question and I might say at this point that quite often the nolle prosequi with leave procedure is used precisely for that effect not necessarily in its more ordinary concern not the quail and restrict First Amendment rights but in effect you'll often have a case where perhaps the state's witness is available only greater expense to the state and this defendant has a reasonably good record and the state decides that because of this particular defendant's case and I'm not talking about the case here that it's not worth the expense to the state in that kind of case and that just thread of this prosecution for the next year to hanging over its head would probably, in other words his brush with the law even though it doesn't result in conviction is sufficient.
Potter Stewart: It operates on this kind of an informal probationary --
Wade H. Penny, Jr.: That's right and I think it has a legitimate (Voice Overlap) quite often has legitimate years and we do not --
Potter Stewart: (Voice Overlap) accepted that --
Wade H. Penny, Jr.: We do not cite at this procedure per se.
Potter Stewart: (Voice Overlap) before any finding of guilt. I don't know how legitimate that is to give the power unbridle power to a prosecutor to put somebody on probation -- well, it's been charged of that offense but never found guilty of it.
Wade H. Penny, Jr.: Well, let me say, I would concede it's appropriate only if the defendant in effect consents to it. Rather consents and does not object to the entry of the nolle prosequi with leave. In other words, quite often the defendant is just as delight as --
Potter Stewart: Oh usually he's very happy now.
Wade H. Penny, Jr.: In fact, on our proceeding in the Superior Court of Orange County, we have a little difficulty with the superior court judge and taking -- in trying to take me seriously that I was opposing a nolle prosequi with leave.
Potter Stewart: Well, isn't that in fact I get the impression right there, tell me if it's wrong that in fact isn't it of the practical matter not of the equivalent of the dismissal of the indictment?
Wade H. Penny, Jr.: Your Honor, I do not think so from -- I'll say under normal practice 99% of the time in ordinary criminal case is it is.
Abe Fortas: As Professor Klopfer engaged and then the civil rights demonstrations since this time?
Wade H. Penny, Jr.: Not in a sensible note, the very assertion as was used here and I might say Your Honor this case was hardly contested of whether or not there was any violation in North Carolina trespass law, it took approximately three days to come out.
Byron R. White: (Inaudible)
Wade H. Penny, Jr.: Well, I think for this I think the objection that we contend for applied equally whether it's with or without leave because we contend that this procedure transgresses vital interest of a criminal defendant whether it's with or without leave if the state construes that it has giving the absolute and final and complete authority to for ever denying this day in --
William J. Brennan, Jr.: That's why it proceeded on motion although it takes so far as the concerning judge absolutely stated that (Inaudible).
Wade H. Penny, Jr.: That's right and it's as far as
William J. Brennan, Jr.: (Voice Overlap) doesn't it?
Wade H. Penny, Jr.: No, Your Honor, that's the crucial point in the case and the reason that that puts the weight and burden upon the defendant and that is that the statute to limitations which is only two years in a misdemeanor case does not ran during dependency of the nolle prosequi entry. Now, if --
Hugo L. Black: You mean a nolle prosequi without or with leave?
Wade H. Penny, Jr.: Either one.
Hugo L. Black: Either one?
Wade H. Penny, Jr.: Either one told the statute of limitations. Now, if that characteristic of the nolle prosequi procedure was not present then we would not be here today because the statute of limitations would come in and terminate.
Byron R. White: When do you -- I would think you would be contending them that all nolle prosequi actions are unconstitutional in North Carolina and I just understood you say that nolle prosequi maybe a very useful beneficial (Voice Overlap) --
Wade H. Penny, Jr.: I contend that all cases disposed of by the nolle prosequi procedure over the objection of the defendant (Voice Overlap) urge in trial does transgress the (Voice Overlap) --
Byron R. White: Whether regardless that his debate is clear objection.
Wade H. Penny, Jr.: That's right. I don't think that he has to offer any burden as upon him. In terms of reality it may be and I would suppose the case where it's quite conclusive that he's going to be found guilty but I don't think that would be in anyway irrelevant consideration by the trial court. I think he is entitled. However, misguided and overly optimistic he may be, he's entitled to remove from himself the personal anxiety and apprehension of the outcome of the litigation to try to escape the quite often and the serious impact which a criminal charge pending criminal charge would have offend his reputation in standing in the community. And likewise to take steps to avoid the delay impairing his opportunity to present such defenses he may have in court.
William J. Brennan, Jr.: I noticed that while you answer the other (Inaudible)?
Wade H. Penny, Jr.: Well, in the sentence immediately before that Mr. Justice Brennan was first urged that under these circumstances the arbitrary and capricious action of the state justifies barring it as on the grounds of the very basic constitutional right but at the very least we're entitled to what we sold in our original motion and that is the opportunity to present our defense on its merits in the trial court.
Earl Warren: Do you have to know how many fellow states there are that have if any that have statutes exactly like North Carolina?
Wade H. Penny, Jr.: Mr. Chief Justice, actually North Carolina's nolle prosequi procedure is not grounded on a statute as I understand that's a carryover from the procedural device under the same name of common law. At least our courts cites no statute and we have one or two -- have one statute in particular that says that where a defendant has been indicted and has not been apprehended within two terms of court that the clerk of court may have nolle prosequi with leave entered and I think that is primarily for the purpose of administrative convenience in order to get it off the docket because the defendant may never admit it.
Earl Warren: I take it for in some states where they do have the nolle prosequi that when it's nolle prosequi the action is terminated then if they want to proceed to further they have to re-indict it within the statute of limitations to that (Voice Overlap) --
Wade H. Penny, Jr.: That's my understanding that some states do not go with the position that North Carolina has of the nolle prosequi statute, I'm afraid to say it does told the statute. The only use that has ever been suggested by the Supreme Court of North Carolina to use this procedure is in a case where the state does not feel it has sufficient evidence to proceed and secure a conviction but even that consideration if it were justifiable a moment eventually the total of time cuts that off because it's equally cogent and likely that there is no such evidence to ever be obtained and if there is none this defendant --
Hugo L. Black: Do you agree on the limitations from (Inaudible)?
Wade H. Penny, Jr.: Yes, Your Honor, this case of State versus Williams that's cited in the brief.
Hugo L. Black: In your brief?
Wade H. Penny, Jr.: Yes, Your Honor State versus Williams.
Earl Warren: When was this action instituted as against the petitioner?
Wade H. Penny, Jr.: It does not appear in the record. Actually, he was arrested in the presence of the deputy sheriff on the night of January 3rd, the night of the alleged occurrence.
Earl Warren: January 3rd of what year?
Wade H. Penny, Jr.: 1964.
Earl Warren: 1964.
Wade H. Penny, Jr.: And then it went into Recorder's Court and the state did not want to try the case in Recorder's Court and went up in to the superior court and on motion of the state in normal procedure there is to seek an indictment.
Abe Fortas: What's the statute of limitations applied to this offense to this offense?
Wade H. Penny, Jr.: To this offense, the statute limitations would be two years.
Abe Fortas: Two years?
Wade H. Penny, Jr.: We have no statute on felonies so if these were felony charge the effect that it told the statute wouldn't make any difference but it would still involve the basic considerations --
Abe Fortas: So that except for this nolle prosequi statute would've run by now. Is that right?
Wade H. Penny, Jr.: Well, except for the nolle prosequi we would have either have our hearing in court.
Abe Fortas: I would assume nothing in happen at all.
Wade H. Penny, Jr.: That's right, assume nothing had happen this would've ran.
Abe Fortas: Right.
Potter Stewart: Well, the statute only (Voice Overlap) what has to be done within the statutory limitation period if the indictment or information has to be filed the charges to be made.
Wade H. Penny, Jr.: That's right.
Potter Stewart: That's what the statute limitation is and a charge was made here within the two years.
Wade H. Penny, Jr.: Well, yes that was made within one month.
Potter Stewart: So, --
Byron R. White: Do you think (Inaudible)?
Wade H. Penny, Jr.: Well, it was actually told by the issuance of the warrant on the day after the offense and then of course the warrant comes up to a point then he's bound over the bill of indictment fixed it up at that point. So, as of this moment utmost the not more than one day of the two years has actually ran as of this point.
Potter Stewart: Right.
Wade H. Penny, Jr.: And yet come February we will look -- at three years actually --
Potter Stewart: But in other words, if there have been nothing -- if this had never happened if there have been no nolle prosequi at all it would've been no statute of limitations problem there, you might've have a very good claim under your right to a speedy trial but certainly the statute limitations are satisfied when the charge was made and within the two years, wasn't it?
Wade H. Penny, Jr.: That's right.
Abe Fortas: But the point is that (Voice Overlap) --
Wade H. Penny, Jr.: Now that the point is now that it's told forever and that therefore there is as to this defendant this procedure as I read the opinion of State of North Carolina says that that there is no relief available to compel a trial that explicitly states we may not compel trial and yet it is not conclusive on the State of North Carolina and the reason it's not conclusive as a termination of this case is that it owes the statute of limitation.
William J. Brennan, Jr.: (Inaudible)
Wade H. Penny, Jr.: That's right Your Honor and even as I read North Carolina nolle prosequi procedure as long is there is a nolle prosequi for nolle prosequi with leave entry in a case brought within the original statute of limitations if they want to they can go back and get a new bill of indictment and proceed upon that.
Byron R. White: But as long as the bill indictment that says -- state outstanding the statute does not ran.
Wade H. Penny, Jr.: That is correct. And the bill is still outstanding under our nolle prosequi procedure. Thank you.
Earl Warren: Mr. Vanore.
Andrew A. Vanore, Jr.: Mr. Chief Justice, may it please the Court. I think the crux of the case is whether of not the defendant here can compel the state to prosecute. In this respect, I think it is interesting to note that in North Carolina under the North Carolina procedure once the bill of indictment is returned as a true bill by the grand jury the Solicitor as an alternative to bringing the defendant to a trial can only do one of two things. He nolle prosequi the case or he can request the Court to nolle prosequi with leave. This is the only way that the indictment or that the question can be resolved and in this particular aspect during the fact that the Supreme Court did hand down the Hamm decision involving civil rights prosecution as trespasses and so forth. The Solicitor obviously was of the opinion that he could not prosecute the case on the merits.
Potter Stewart: Mr. Vanore, are you telling us that there is no such thing in your state as the power to dismiss the case?
Andrew A. Vanore, Jr.: That is correct Mr. Justice Stewart.
Potter Stewart: There in no such thing as that?
Andrew A. Vanore, Jr.: Once a bill of indictment is drawn and return as a true bill by the grand jury the only alternative that the Solicitor has is to nolle prosequi or nolle prosequi with leave.
Potter Stewart: How about the trial judge, does he have power to dismiss an indictment without a trial?
Andrew A. Vanore, Jr.: No, as far as the -- a motion to quash as you brought up before and asking Mr. Penny about that. That would be for procedural defects only and not for defects on the merits so to speak due to the fact that as this Court did in Hamm --
Abe Fortas: Well, suppose the indictment as barred by some principle of laws and decisions in the North Carolina Supreme Court can't you make a motion that quash the indictment and at sometime or do you have to go through trial?
Andrew A. Vanore, Jr.: It is my understanding that you would have to go to a trial.
Byron R. White: You mean that -- do you really mean that this defense based on (Inaudible) could not have been raised until after the -- all the evidence is in and there was an argument about at the end of the trial?
Andrew A. Vanore, Jr.: Well, the only alternative would have been for the Solicitor to bring the case to trial and then request the Court to remove the juror without cause and therefore if the state ever tried to prosecute the individual again, it would be a question of double jeopardy there.
Byron R. White: Well, some of – suppose after two years, that's the limitation as I understand?
Andrew A. Vanore, Jr.: Yes, that is correct.
Byron R. White: As to Mr. Justice Stewart, do I understand you to say if there had been no move on that offense until January 4, 1966 one day after two years. There's nothing to be done, get rid of that indictment except (Inaudible)?
Andrew A. Vanore, Jr.: That is correct You Honor. That is my understanding of the procedural aspects in North Carolina as far as removing once an indictment has been involved. It is interesting note, I was unable to find a case where a defendant has raised the same defense that the defendant here is right. Now, there are thousands of nolle prosequi and nolle prosequi with leave.
Potter Stewart: And no dismissal, is that right?
Andrew A. Vanore, Jr.: Well, as you mentioned before Mr. Justice Stewart --
Potter Stewart: This is the equivalent.
Andrew A. Vanore, Jr.: This is the equivalent of a dismissal.
Potter Stewart: But it isn't the dismissal. This thing is actually hanging over this petitioner's head for the rest of his life.
Andrew A. Vanore, Jr.: Theoretically, I must agree with you in 10 years from now. This case could be brought against the petitioner.
Potter Stewart: And he probably have a very good defense in terms of forgetting on Hamm and (Inaudible) in terms of his right to a speedy trial but nonetheless he would have to --
Andrew A. Vanore, Jr.: Excuse me.
Potter Stewart: This is hanging over his head, isn't it?
Andrew A. Vanore, Jr.: Well, when you say hanging over his head, the petitioner has said that this impedes his right to take trips to Europe and so forth. I don't see where that is true though I don't of any case where a nolle prosequi with leave has impeded an individual from (Voice Overlap).
Potter Stewart: And apparently, the person can go hands without any bond or anything else.
Andrew A. Vanore, Jr.: Well, our court has so ruled in Coffey that the effect of nolle prosequi with leave is to --
Abe Fortas: But here there have been discloses that the main implication with federal employment or I assume and after disclose that he was under indictment in North Carolina or I don't know what the situation is with respect to passport application whether they have to disclose this or not if there were an indictment for felony probably won.
Andrew A. Vanore, Jr.: Well, as far as the felony is concerned Mr. Justice Fortas there is no statue of limitations on the felony but actually --
Abe Fortas: But you use this nolle prosequi procedure in felony cases too.
Andrew A. Vanore, Jr.: Yes, it is used in the felony case also. In answer to your question yes, he would have to disclose --
Abe Fortas: What do you mean you don't have felony, Mr. Vanore?
Andrew A. Vanore, Jr.: There is no statute of limitations. In other words, if a person is accused of murder or murdering someone in 1940 the state can indict him for that --
Abe Fortas: Yes, but how about a non-capital case supposed he's accused of grand larcenies?
Andrew A. Vanore, Jr.: That would be a felony in North Carolina and there would be no statute of limitation.
Abe Fortas: No statute of limitations.
Andrew A. Vanore, Jr.: The only statute of limitation that is applicable is in the case of a misdemeanor.
Abe Fortas: Thank you.
Earl Warren: But suppose 10 years from now the prosecuting attorney wanted to try this man. I assume from what has been said here that he can put into trial without asking the court's consent or anyone else, is that correct?
Andrew A. Vanore, Jr.: That is correct but of course Mr. Chief Justice the state contends that the defendant would certainly have a good defense. In fact, there is no doubt that he would have been denied a speedy trial. I think if the question if the Solicitor now, try to bring this particular defendant to trial that certainly our court in North Carolina would go along with the defense of the fact that he was denied his right to speedy trial but I can't --
Earl Warren: When would that date arrived when he would have a good trial -- have a good defense?
Andrew A. Vanore, Jr.: Well, this would only arise when and if the prosecutor elected to prosecute the defendant for the case which with which he is charged.
Earl Warren: The question I asked you is about 10 years, how about eight years or seven or six or five?
Andrew A. Vanore, Jr.: Or 50 years as far as that's concerned --
Earl Warren: Yes, but how long would he have to wait before he could -- to get such a relief if the prosecutor decided that he wanted said was five years that he want or in five years he want to try him?
Andrew A. Vanore, Jr.: As soon as prosecutor put the case on the trial docket, the defendant could come in and make a motion to dismiss on grounds that he was denied his constitutional right to speedy trial.
Potter Stewart: But you said there was no such thing. You said there was no such thing as a motion to dismiss in North Carolina.
Andrew A. Vanore, Jr.: On this constitutional right here as far as it would be a motion on the merits because --
Potter Stewart: I understood you to say and you correct me I obviously and I misunderstood you. I thought you said there was no such thing as a motion to dismiss an indictment and no power because of the prosecutor to dismiss an indictment and no power of the trial judge to dismiss the case after the grand jury brought in indictment.
Andrew A. Vanore, Jr.: That is correct. You did not misunderstand me.What I am saying here is that once the case was brought to trial that the defendant -- this would be an affirmative defense that defendant would have to raise in stating that he was denied his constitutional right to a speedy trial.
Potter Stewart: So there would be what, a directive acquittal?
Andrew A. Vanore, Jr.: A directive verdict yes, (Voice Overlap).
Potter Stewart: A directive verdict for the --
Andrew A. Vanore, Jr.: Yes, the court would direct the verdict to the juror.
Potter Stewart: But after a trial?
Andrew A. Vanore, Jr.: After a trial. Now, in this respect, we do not have a trial. Once an indictment is wrong the only way it can be dismiss is by nolle prosequi or nolle prosequi with leave. That is what I'm trying to say other than bringing him actually to trial.
Potter Stewart: Yes, by (Voice Overlap) --
Abe Fortas: He could then affect a motion to withdraw a juror and that way -- is that way you work it?
Andrew A. Vanore, Jr.: No, I suggested that would be a way that this could have been done. No. Mr. Judge would direct the verdict.
Abe Fortas: You have to wait until a jeopardy of taxes before you get rid of the case?
Andrew A. Vanore, Jr.: Well, that would be one way to do it withdraw a juror without reason and of course you can never be tried again because it would be double jeopardy.
Earl Warren: Would that be done by a pretrial motion or must the jury be drawn before or he can make such a motion?
Andrew A. Vanore, Jr.: The jury must make be drawn.
Earl Warren: Well, then if he didn't want to be tried because of the lifetime and he move for dismissal on the grounds of not getting a speedy trial and the judge said, alright, that's true then the only acquittal he would have would be because he didn't give a speedy trial, he wouldn't have an adjudication on the facts, would he?
Andrew A. Vanore, Jr.: Well, it would start out as an adjudication on the facts if Your Honor pleases, that would be the only way this case could be finally terminated and that would be for the Solicitor to bring the case and put it on the trial docket for trial by a jury. And during the process of the trial, this is an affirmative defense that the defendant has not been afforded of right, or his right his constitutional right to a speedy trial because the state has let us say waited three years without a good reason before trying this individual. As far as the State of North Carolina's position is, the defendant is entitled to a speedy trial if there is to be a trial. Now, as far as the question concerning itself with the fact that this is hanging over his head indefinitely there's no doubt about that. But practically speaking the state takes the position that a nolle prosequi with leave is in effect a dismissal.
William J. Brennan, Jr.: I want to (Inaudible)?
Andrew A. Vanore, Jr.: He would have to answer that yes Mr. Justice Brennan.
Earl Warren: Do you happened to know how many other states if then he have the same procedure you have?
Andrew A. Vanore, Jr.: Well, there are none that have exactly the same procedure. I'd like to call the Court's attention to page 23 of the amicus jury our brief where that is set out that the 13 states have placed sole discretion of nolle prosequi within the Court, they do set out some of the statutes that other states have concerning of -- I was unable to find any directly similar to North Carolina's --
Earl Warren: And the civil liberty's union, the brief (Voice Overlap) --
Andrew A. Vanore, Jr.: Yes that is correct.
Earl Warren: -- that 21 you say.
Hugo L. Black: I'd like to ask you a question on whether I understood you're correctly or not. Did I understand you directly to say that if this man certainly would decide now to prosecute this very man that this very man could then offer defense which the state would have said because of the delay of prosecuting him?
Andrew A. Vanore, Jr.: Well I'm not sure whether or not the state would accept it but I would certainly think in light of the decisions of North Carolina Supreme Court and the decisions of this Court that that would certainly be a good defense that he was denied his right to a speedy trial.
Hugo L. Black: Then all your -- all your contra verdict here is that as I gather it states right to keep some intending against him, state knows he shouldn't be convicted up.
Andrew A. Vanore, Jr.: I think that is the crux of the matter.
Hugo L. Black: But why does the state do this?
Andrew A. Vanore, Jr.: I cannot give any reasons for why the state does that. I can simply say this that --
Hugo L. Black: It does and what you are saying is that he is the man charged with an offense or which he has a good defense which would be recognized and he become lose but he has denied any right to raise it in states of North Carolina.
Andrew A. Vanore, Jr.: He has denied the right due to the fact that the procedure --
Hugo L. Black: Well, whatever it is, he is denied the right to raise, that he does?
Andrew A. Vanore, Jr.: That is correct, yes.
Hugo L. Black: He is under this, it's none of the constituting return for the rest of his life, is that right?
Andrew A. Vanore, Jr.: That is correct. I would like to point this out --
Hugo L. Black: But why does the State of North Carolina not confess evidence?
Andrew A. Vanore, Jr.: I was just like to suggest one thing if Your Honor pleases as Mr. Penny mentioned to the Court, it would seem that where a nolle prosequi with leave is requested by the Solicitor and the is no objection by the defendant that certainly would be proper as in this case where the defendant has objected quite candidly perhaps this Court should allow some redress to that. I do believe that under the facts of this Court (Voice Overlap).
Hugo L. Black: The Court revealed in time to put up a defense to a charge defending against him.
Andrew A. Vanore, Jr.: That's correct.
Earl Warren: You don't take the position that we should decide this case on its peculiar facts, do you?
Andrew A. Vanore, Jr.: Well I think you should decide this on its peculiar facts in that the defendant objective strenuously to the entry of a nolle prosequi with leave by the Solicitor. The reason I say this it's because as Mr. Justice Stewart pointed out this is actually an effect a dismissal and I have never known of the defendant in North Carolina that has complain when the Solicitor has taken a nolle prosequi with leave. This is the first case and I don't know of any case that any other jurisdiction that this question has ever been raised.
William J. Brennan, Jr.: (Inaudible)
Andrew A. Vanore, Jr.: Well, where an objection is made and where the state does not set forth good reason such as he needs more time to get more evidence against the individual and they have good reason for requesting a continuation yes if --
William J. Brennan, Jr.: (Inaudible)
Andrew A. Vanore, Jr.: That did not occur. The Solicitor gave no reason for in this particular case. Well, I would might suggest that the Court remand to the Supreme Court of North Carolina with direction that the state either try this man within a reasonable time or that the Supreme Court itself quash the indictment.
Byron R. White: On what ground, counsel?
Andrew A. Vanore, Jr.: On what ground do they quash the indictment?
Byron R. White: On what ground do we take this action? Do we say, speedy trial?
Andrew A. Vanore, Jr.: No, I would say this that under the peculiar procedure in North Carolina that it is unconstitutional not to allow --
Byron R. White: Yes, but how?
Andrew A. Vanore, Jr.: Well, it would have to come under the Sixth Amendment speedy trial, yes.
Byron R. White: Was that ever been applied to the state (Voice Overlap)?
Andrew A. Vanore, Jr.: No it has not. It is never been applied --
Byron R. White: Do you think that we do it in this case?
Andrew A. Vanore, Jr.: No, I'm not suggesting that, that is the only --
Byron R. White: Well, then what constitutional ground do you suggest the --direct the Supreme Court of North Carolina?
Speaker: (Inaudible)
Andrew A. Vanore, Jr.: I think that would certainly be a full problem as far as the state is concerned rather than the Sixth Amendment.
Byron R. White: What, the due process?
Andrew A. Vanore, Jr.: Yes.
Byron R. White: And how does a denial of due process just for the -- he never gets the chance to have his defense ruled on?
Andrew A. Vanore, Jr.: He never had the chance to exonerate himself as Mr. Justice Fortas and Mr. Justice Brennan raised before that if in 10 years he applied for job he would have to say that he is under indictment in North Carolina.
Hugo L. Black: And your confession here, I understand (Inaudible).
Andrew A. Vanore, Jr.: Where the defendant objects to the states taking a nolle prosequi with leave and where the Solicitor has not stated sufficient reasons for requesting an extension of time in order to reinstate for lack of evidence. I would like -- yes, very much. I would like to limit it to the peculiar facts of this case.
Byron R. White: You wouldn't want to limit it just to where he has a Hamm and (Inaudible) defense.
Andrew A. Vanore, Jr.: I beg your pardon?
Byron R. White: You wouldn't want to limit this to where he has a Hamm and (Inaudible) defense. Would you? I mean, that's the peculiar fact in this case that he had a -- he really had a defense based on supremacy clause for constitution.
Andrew A. Vanore, Jr.: Well, I think the peculiar fact of this case is that this defendant wanted to be tried.
William J. Brennan, Jr.: In other words, what you're saying is where the Solicitor offers or makes a motion nolle prosequi with or without leave and even affects the part of the defendant and the state does not come forward with any reasons for its motion, in that circumstance defendant can (Inaudible)?
Andrew A. Vanore, Jr.: That is correct.
Earl Warren: I wonder why in both of your answer to the petition for certiorari and also in your brief on the merits that no such concession as you now make was made here and both of those dockets unless you ask the Court to deny this petition any relief. Now, why do you come to us in that posture?
Andrew A. Vanore, Jr.: I preferred quite frankly not to put there in the brief Mr. Chief Justice and that if any admission or a vow was made that it would be made orally because I was not sure that particular time that I in my own part it was error.
Hugo L. Black: But why are you not confessing to claim openly flagrant violation of the Sixth Amendment to fight this position in all criminal prosecution the accused shall enjoy the right to a speedy and public trial in part of jury and so forth?
Andrew A. Vanore, Jr.: If there is to be a trial Mr. Justice Black, I don't think that that goes as far as --
Hugo L. Black: There is to be a trial if this amendment applies to the state, isn't it?
Andrew A. Vanore, Jr.: Well, I don't believe that any of the -- all of the cases that have come up to this Court on the question of speedy trial have a reason --
Hugo L. Black: I know, how they have come up before what we have here is where the record shows you admit that the man is being denied speedy public trial when he is tried for an offense. Now, if the Sixth Amendment applies to the state isn't that a violation? He is not being -- he is not enjoined.
Andrew A. Vanore, Jr.: What the state has not elected to prosecute a man as (Voice Overlap) --
Hugo L. Black: But they are charged in, they have an offense of pending against him and they will not give him the benefit of a speedy trial to admit it.
Andrew A. Vanore, Jr.: They haven't given him the benefit of any trial.
Hugo L. Black: That's right.
Andrew A. Vanore, Jr.: That is correct.
Hugo L. Black: But that doesn't violate the Sixth Amendment.
Andrew A. Vanore, Jr.: Well, as far as all of the cases that come up under the Sixth Amendment Right arise where the state has elected prosecute and the defense is raised of speedy trial.
Hugo L. Black: (Voice Overlap) but why do they have to raise it in any one particularly the man. The man is charged with an offense in the state and they will not give him a trial, why doesn't that violate the Sixth Amendment if it applies to the state?
Andrew A. Vanore, Jr.: It's a question of whether or not the state must try him or whether or not this nolle prosequi with leave suffices.
Hugo L. Black: No. Is he not directly unequivocally entitled to a speedy trial if the Sixth Amendment applies to the state?
William O. Douglas: I get it from what you said that you agreed with Justice Harlan like this was a question of due procedural of due process or opportunity to go in to a court to rule that it will dismiss for lack of constitution.
Andrew A. Vanore, Jr.: That is correct.
Speaker: I'd like to ask you one thing, are you authorized by the (Inaudible) to the state?
Andrew A. Vanore, Jr.: Well, I take it that I would Mr. Justice Harlan yes.
Speaker: According to your representative?
Andrew A. Vanore, Jr.: Yes. I am representative of the Attorney General Ralph on the peculiar facts of this case as I have mentioned before where the defendant raises an objection, I would not like to see the whole process of procedure (Voice Overlap) --
Speaker: No. The reason I ask the question, if the Court accepts your suggestion and confession in error.
Andrew A. Vanore, Jr.: No, definitely not. I've already discussed that point with my (Inaudible).
Earl Warren: Very well.
Andrew A. Vanore, Jr.: Thank you.