Richard Kanner: -- whether it is feasible for this Court to accept standard by which the effectiveness and duty of a Court appointed trial counsel can be measured. Secondly whether a Court appointed trial counsel has a duty to abide by his client's instructions during the pretrial proceedings of the case. And lastly whether when this Court held it was inherently invalid to hold a murder trial in a community exposed to the defendants televised confessions, did this Court mean inherently invalid or mean inherently invalid sometimes. I feel that the facts in this case are decisive to all of the issues which I am attempting to raise and I will discuss them at some length. I expect also to discuss the need for an adequate standard to measure the effectiveness and duty of Court appointed trial counsel. I also expect to discuss some suggested standards with particular emphasis on the American Bar Association's minimum standards for criminal justice and lastly of course to discuss the existing precedent as it applies to this case. As to the facts, the defendant at the time of his arrest was 17 years old, he is white, of average to above average in intelligence. He has a tenth grade education. He and his family at the time of his arrest resided in California, so that when he was apprehended near West Palm Beach, he was out without of either a counsel or family.
Abe Fortas: Excuse me sir, did you say you were or were not going to discuss point 1C in your brief that psychiatric witness' point.
Richard Kanner: Yes sir Your Honor I expect to discuss that on to the topic of the test in determining the adequacy of trial counsel.
Abe Fortas: Because that's the only importance here attached to the point in this case.
Richard Kanner: I feel that the failure to present such testimony Your Honor is one of the indications to show that trial counsel completely abandoned all defenses that were applicable so far as the question of mercy was concerned Mr. Justice. The defendant at the time of his arrest immediately confessed to an additional seven homicides all committed in the perpetration of robbery. All of these homicides were committed within the period of 30 days; one in California, three I believe in Arizona and four in Florida. The four that were in committed in South Florida were all committed within that past week. The defendant as I say was apprehended in West Palm Beach and immediately the next day on March 6th of 1960 he was taken to Miami where he again repeated these confessions to these eight separate homicides, this time Your Honors in the presence of television cameras, radio microphones and of course the news media. The defendant was returned to West Palm Beach in May where he was convicted and given a recommendation of mercy which in Florida is automatically means life.
Speaker: [Inaudible]
Richard Kanner: Yes sir, Your Honor. So far as the rule one, the post collateral attack petition is concerned Your Honor, we'll strike that. It does not say live or taped.
Speaker: [Inaudible]
Richard Kanner: Your Honor I have only examined the record I don't know, other than what the Rule 1 -- what I've alleged in the Rule 1 petition. The defendant was returned to Miami in May and counsel were appointed for him. Counsel made a motion for the appointment of the psychiatrist to determine his competency. Two were appointed and three examined the defendant. The defendant was found competent by all of the three psychiatrists and competent to stand trial and know right from wrong. Their opinions ran the range that he was suffering from a mere personality disorder to the fact that he had a severe psychosis, that is almost out of touch with reality, although still able to know right from wrong. The psychiatrist who had not been formally appointed two weeks before his trial filed his report and this psychiatrist said I can state unequivocally that without further advances in the psychiatric field this boy will a menace to society as long as he may live. Counsel were asked by the petitioner to move for a change of venue, but they failed to do so. So to please the Court it was against this background that the defendant went on trial for his life in June.
Speaker: [Inaudible]
Richard Kanner: Yes sir, Your Honor.
Speaker: [Inaudible]
Richard Kanner: No they were Court appointed counsel Your Honor. After the selection, after the voir dire and the selection of the jury the defendant freely and voluntarily and on the advise of his counsel and on the advise of his two sisters and his brother who had come from California to the trial signed what was denominated as a “Stipulation” which in effect was a plea of guilty because it admitted facts, all of the necessary facts necessary to constitute murder in the first degree of this person in question. The defendant was not taken before the Trial Court prior to the introduction of the stipulation into evidence. So the trial was limited as it was to the judicial stipulation. There were some corroborating physical evidence, corroborating the confession of stipulation and also the defendant's own testimony as to his earlier environment. There was --
Byron R. White: Was the confession set out in stipulation or no?
Richard Kanner: Mr. Justice White the stipulation was in fact a confession. It said that, it's on page 40 of the -- 39 of the record. It says that the defendant did go into this gas station.
Byron R. White: I understand, I understand but was the -- how about his pretrial statement?
Richard Kanner: This was not set out in the stipulation Your Honor.
Byron R. White: But it was introduced?
Richard Kanner: It was also introduced Your Honor, you are correct.
Byron R. White: Under what circumstances?
Richard Kanner: A recording of his confessions which he made in Palm Beach, strike that. A recording of the confessions as to this particular crime which he made in Palm Beach was introduced, that is in Palm Beach he made this confessions to all of these crimes on a, Gray Audograph disk, that portion of his confessions on the Gray Audograph disk applicable to this particular murder was played to the jury.
Byron R. White: So this -- so the televised confession was not played to the jury?
Richard Kanner: No Mr. Justice.
Byron R. White: And only that part of the previous confession that related to this crime?
Richard Kanner: Yes sir.
Byron R. White: And why was that played to the jury?
Richard Kanner: Your Honor, the record is unclear as to why it was played to the jury. There is testimony in a habeas corpus petition proceeding which is in the record before this Court that the -- the stipulation was entered on a quid pro quo basis, that is that the state would certain things and limit their evidence providing the stipulation was signed. There is actually nothing in the stipulation itself or any copies of the stipulation as to exactly what the consideration was nor is there anything in the stipulation Mr. Justice as to whether any promises were made to the petitioner.
Thurgood Marshall: But in the habeas corpus here, there was testimony that the recording witness is going to be used, gory colored pictures of the crime scene were going to be used?
Richard Kanner: Yes sir, Mr. Justice Marshall, this is the argument that the state advanced at the habeas corpus petition which was accepted by the Florida Supreme Court and certiorari was denied.
Thurgood Marshall: But his testimony to that --
Richard Kanner: Yes, yes sir.
Thurgood Marshall: He signed the testimony.
Richard Kanner: Yes sir, Mr. Justice, as to whether those witnesses would be relevant in Florida if not before this Court. So as I say the trial was limited to the stipulation. There was the Gray Audograph disk and some corroborating testimony in the defendant's trial. There was no mitigating testimony at all from the psychiatrist, nor was there the first instruction for the jury. Gentlemen of the jury, this a stipulation and it leaves to you the sole question of mercy you are to disregard any publicity that you may have learned about the defendant and you are to base the decision on mercy to the facts in this case. That was not the first instruction, not the first word from this Court, that so far as the question of mercy was concerned, that the jury had to limit its deliberations to the facts, to the evidence presented at this trial. The Jury did return a verdict without a recommendation of mercy. If it pleases the Court, I do not wish to imply however by I what I've said heretofore that counsel or proforma in their representation of this boy so far as the question of guilt or innocence was concerned because they were not, counsel moved for such discovery as available in Florida and they also moved to some discovery that was not available in Florida such as his testimony at the Palm Beach Trial. They also moved for a list of witnesses and the bill of particulars and they asked to hire ballistics and fingerprint experts. So as far as the question of guilt or innocence is concerned I don't wish to leave any implication to the Court that trial counsel, defense versus proforma because so far as guilt or innocence was concerned up to the assigning of the stipulation it was not proforma and I have no quarrel with the counsel's recommendation Mr. Justice Marshall assigned the stipulation. My quarrel with counsel is that having entered into the stipulation, they completely abandoned this boy. They made no attempt, no effort to insulate him from the affects of this publicity. The appeal again ignored the publicity. It was limited to the inability of trial counsel to challenge members of the grand jury, the prejudicial final argument and the fact that the trial court found the defendant competent to stand trial.
Thurgood Marshall: In the habeas corpus hearing it addressed one of these lawyers and judge, is he a former judges or he just carries the tag around?
Richard Kanner: Mr. Justice Marshall, he is a former assistant municipal judge for the City of Miami. At the --
Speaker: [Inaudible]
Richard Kanner: No, Your Honor.
Earl Warren: Was there any determination of any kind as to whether these other crimes were actually committed by the defendant?
Richard Kanner: No, Mr. Chief Justice, nothing in this record and nothing in my own personal knowledge. I was not even living in Miami at the time. The counsel from his earlier case in West Palm Beach, then entered the case and filed an original petition in the Florida Supreme Court, alleging that the judicial stipulation was entered into on the express agreement or guarantee of this trial counsel that the defendant's life would be spared with the signing of this stipulation. The Florida Supreme Court appointed a commissioner who heard extensive hearings and he -- the commissioner recommended to the Florida Supreme Court that the facts were not as proven.
William J. Brennan, Jr.: Who determines life and death under the Florida procedure?
Richard Kanner: The jury, Your Honor, with a recommendation of mercy that is the seven of the 12 jurors in Florida must recommend mercy and it's mandatory in Florida.
William J. Brennan, Jr.: Would you say one of the arguments is that the stipulation was entered into on some assurance if they don't give a life sentence?
Richard Kanner: Your Honor, this was the argument in the state habeas corpus petition. It was denied by the Florida Supreme Court and this Court has denied certiorari. I don't expect to get into it, but I only bring this up is to show the present posture of the case.
Hugo L. Black: That fact was found against Florida?
Richard Kanner: Excuse me Mr. Justice.
Hugo L. Black: That fact was found against Florida?
Richard Kanner: Yes sir Mr. Black excuse me Mr. Justice Black. The --
Speaker: May I ask you one question, if the jury does not [Inaudible]
Richard Kanner: Yes sir Mr. Justice.
Speaker: [Inaudible]
Richard Kanner: That is correct. The petitioner that in proper person filed in the United States District Court of Jacksonville a habeas corpus petition alleging for the first time that the listing had deprived him of a fair trial. The United States District Judge denied the petition on the grounds that the State Court had not been given the opportunity as yet to rule on that matter. After which the petitioner filed his pro se appeal in the Fifth Circuit. The Fifth Circuit concurred in the judgment of the District Judge, stayed his execution, where upon the petitioner with counsel filed his collateral attack proceeding in the Florida Circuit Court, the trial court. Our post conviction of collateral attack statute, our rule is identical with the Federal 2255 proceeding. The Rule 1 petition made no allegation, though that his trial was unfair so far as guilt or innocence was concerned. Defendant has always conceded his guilt, but as Rule 1 petition laid down in length what that it was that his trial so far as guilt or, so far mercy was concerned was unclear. And this Mr. Justice Fortas is one of the reasons I suggest that his trial on the question of mercy was unfair because of the failure to defense counsel to call the expert mitigating witnesses.
William J. Brennan, Jr.: Is that a separate proceeding?
Richard Kanner: No, Your Honor in Florida it is normally one proceeding. When the advent of the judicial stipulation or confession, the only issue Mr. Justice before the jury was the question of mercy. The question of guilt or innocence was no longer a part of the determination by the jury because the facts have been stipulated.
Byron R. White: Oh! yes but the jury still had to believe them and come in with the verdict of guilty?
Richard Kanner: Mr. Justice White that is --
Byron R. White: Otherwise I see no other release for the stipulation to hold up, I see no reason for the state introducing collateral – corroborative evidence?
Richard Kanner: Your Honor, I don't think there was any reason for them to introduce one witness who establish venue but they did.
Byron R. White: Yeah, but the verdict, the jury comes back with the verdict guilt with or without mercy?
Richard Kanner: Yes sir, Your Honor.
William J. Brennan, Jr.: Well, of course I don't want to jump ahead, you're making your third point of the publicity.
Richard Kanner: I'm only saying Your Honor that so far as the Rule 1 petition was concerned, it conceded his guilt, but it is alleged that the publicity inter alia was a factor which precluded him from receiving a fair trail on the question of mercy.
William J. Brennan, Jr.: I see.
Richard Kanner: Now, the trial judge in an ex parte order required the state to file a reply which they did. The state denied all of the allegations in the Rule 1 proceeding and further by way of affirmative defense, the state said that the habeas corpus ruling by the Florida Supreme Court and the direct appeal were res judicata as to all of the issues which were raised in the collateral attack.
William J. Brennan, Jr.: Has this Court ever --
Hugo L. Black: I just started to ask what is the issue to find out on the question of mercy, and what evidence was called in to prove [Inaudible]
Richard Kanner: Mr. Justice Black in Florida mercy is within the sole discretion of the jury and whatever evidence the defendant may wish to offer in that regard can't be received.
Hugo L. Black: Is that the basis of your attack?
Richard Kanner: I don't understand that.
Hugo L. Black: Is that the basis of your attack or one of the basis of attack [Inaudible]
Richard Kanner: On the sentence yes sir, Your Honor.
Hugo L. Black: On what?
Richard Kanner: On the sentence, not on the conviction but on the sentence.
Hugo L. Black: On the sentence. Do you say that it was unfair or unconstitutional because they didn't submit evidence to the office on the question of mercy? Is that it?
Richard Kanner: That's correct Mr. Justice Black. But I don't say that it's unfair if you were to take -- isolate this one instance. I say that it is unfair when viewed in the background of the publicity and when viewed in the background of failing to have the Court give instructions to attempt to insulate the defendant from the publicity.
Hugo L. Black: Are you say that the State constitution of the trial, when it permits the jury to pass on the question of punishment to submit a trial where they can be evidence introduced, showed and [Inaudible]
Richard Kanner: I'm saying it was unconstitutional in this case, yes sir.
Thurgood Marshall: Isn't that true that he did testify?
Richard Kanner: Yes sir.
Thurgood Marshall: And didn't -- probably all of his testimony amount to a plea of mercy?
Richard Kanner: Yes sir.
Thurgood Marshall: He wasn't precluded from putting all evidence, was he?
Richard Kanner: His counsel, one of the allegations in the Rule 1 petition which have to be taken at this point as being true, is that his counsel refused to put on the expert psychiatric witnesses without cause or justification. I think this is the issue that this case boils down to Mr. Justice, is whether these acts of counsel are going to be imputed to the client and I believe this is what this case is about.
William J. Brennan, Jr.: One thing I don't quite understand if you would have prevail here, would he got a new trial on the issue of guilt or innocence as well as on punishment?
Richard Kanner: Mr. Justice Brennan if this Court holds that the standard of trial advocacy in this case fell so far below that which the Fourteenth Amendment prescribes, then he is going to get a new trial on the question of guilt or innocence.
William J. Brennan, Jr.: Well, then some of your argument is addressed then to the conviction itself as well as to the punishment?
Richard Kanner: Well, only because in Florida we have no --
William J. Brennan, Jr.: Suppose, suppose if you did prevail, but not on that ground, but on the other ground would he not be entitled in light of the form of this verdict a new trial and guilt or innocence as well?
Richard Kanner: Yes sir Your Honor, as to whether his stipulation would still be admissible into evidence that I don't know. So is the -- the trial judge denied the Rule 1 proceedings on the grounds of res judicata that was replied to by the state after which an appeal was taken to our intermediate Florida Court. Now our Florida Intermediate Court recognized Sanders versus United States and said that res judicata was absolutely not applicable on the rule, on the collateral attack proceedings. But the District Court of Appeal of Florida did say that the failure of the defendant to exhaust his peremptory challenge and the failure of the defendant to move for a change of venue and then in reliance on the Sixth Circuit's Shepherd Lee Maxwell case precluded raising the publicity issue in a collateral attack.
Abe Fortas: Let me ask you this? Is there any case in which this Court has taken an issue, directed the way you want this one directed let us say not to the specific question of guilt or innocence, but to the recommendation of mercy? Do you know any such case?
Richard Kanner: Your Honor no appellate court has the power to tell a trial court or to tell the trial court jury that it should recommend mercy.
Abe Fortas: No, I don't mean that, but I mean your -- so I understand what you are saying, you are not asking us to reverse because of error in the judgment. You are asking us to reverse because you think that there was error committed focused to crime or directed to the jury's failure to recommend mercy. Correct?
Richard Kanner: Yes sir Your Honor.
Abe Fortas: Have we already done that? Do you know of any case in which we have taken such action?
Richard Kanner: My research has not found a case on this point pro or con. I think that I may have -- I have confused the Court by conceding the guilt of this defendant and only subjecting my argument to the question of mercy. There's a practical and there's an actual matter as you understand Mr. Justice that is what I am complaining about.
Abe Fortas: I would not say you -- I certainly wouldn't say you've confused the Court, but you baffle me, because I don't understand the jurisdictional basis?
Richard Kanner: Only this Mr. Justice that if this Court feels that it is possible to establish guidelines, to test one the effectiveness and two the duty of court appointed trial counsel and then finds that such guidelines or standards were violated in this case so far as the question of mercy were concerned then I feel this Court has an obligation to reverse it.
Byron R. White: And if reversed I would suppose that there would be no confession evidence to the subsequent retrial?
Richard Kanner: Mr. Justice White I don't know whether the judicial confession would be admissible or not. He had his counsel there. He had his sisters there.
Byron R. White: But none at the pretrial?
Richard Kanner: I would presume on the random that it would not be. So as I say I expect to discuss one; the need for adequate standards to measure the duty and effectiveness of Court appointed trial counsel and secondly some suggested standards and lastly the applicable precedent. Mr. Justice has asked for the need. 35 years ago in Carl versus Alabama this Court laid down the mandate that counsel should render effective and substantial aid. Up until this case, I don't believe the question as to what effective and substantial aid has come up. It came up to the slight extent in Avery versus Alabama and the Court held in that case that it was not violated. This Court did in it's supervisory power over the Federal Courts in Alaska versus United States hold that when there was a conflict of interest between co-counsel that there was not aid, the counsel was not “As effective as it might have been.” Now Your Honors with the advent of Gideon v. Wainwright and the proliferation of Court appointed counsel throughout the state systems, I feel that there is now a need for some adequate guidelines to test what is duty and what is the criteria for effective counsel.
Hugo L. Black: May I ask what is your direct attack on this counsel who tried this case?
Richard Kanner: It is this Your Honor, they did not question the Court to give any instructions to the jury that the jury so far as the question of mercy was concerned was required to limit the deliberations on mercy to the record in this case. Secondly I feel that trial counsel went below what is normal or fair representation when they did not put on the mitigating circumstances. Thirdly I think counsel was derelict regardless of --
Hugo L. Black: What kind of mitigating circumstances?
Richard Kanner: Your Honor the three psychiatrists who examined this boy, all agreed that he was very sick, that he wanted be helped and that his mental illness, at least one of them said that it boarded on a psychosis that is that he was -- had lost touch of reality.
Hugo L. Black: You're complaining because lawyer didn't ask to press with charges about asking the court to change the jury on that ground?
Richard Kanner: Yes Your Honor I am complaining that the Court--
Hugo L. Black: What would you charging--
Richard Kanner: Pardon me.
Hugo L. Black: What would he charged with?
Richard Kanner: He would have charged –
Hugo L. Black: And the law on that question as to the how far the court should charge the jury in looking towards mercy because of some psychiatric significance of it?
Richard Kanner: Your Honor there is no law on that, except that the law would have to be --
Hugo L. Black: He would have to charged, wouldn't he?
Richard Kanner: No Your Honor the law in Florida which I believe would necessitate a charge is that in Florida and we have cases that I cited in my brief so holding, that the trial on the question of --
Hugo L. Black: That's a Florida question which you can use –
Richard Kanner: Yes sir, that's correct.
Hugo L. Black: You say [Inaudible] ask for instructions for which he was reasonably entitled under the law of the state of Florida?
Richard Kanner: Yes sir Your Honor that's correct. An analogous example, Shepherd v. Maxwell this Court held that often trial judge has an obligation sua sponte to make such effective controls as maybe necessary to ensure a fair trial and I feel certainly insofar as instructions on the question of mercy were concerned Mr. Justice Black that there was an obligation one on trial counsel and two failure of trial counsel I feel there was an obligation sua sponte for the Court.
Abe Fortas: It seems to me that there is a material and basic difference between the questions that you presented to this Court in your petition for writ of certiorari and the questions that you are now presenting. I have the petition before me. Now it was signed by Mr. Ripley, the petitioner.
Richard Kanner: I prepared the petition Your Honor.
Abe Fortas: It was singed on the left by you and those questions that were presented, there were two question presented. The first one is, is it a denial of due process for the state to deny a post conviction evidentiary hearing in a capital case when the petitioner's alleged extensive publication et cetera, deprived him of a fair trial on the question of whether the jury would recommend mercy. And the second question is, is it a denial of due process for the state to deny a post conviction evidentiary hearing under the circumstances related above when the petitioner has alleged that he would question his court counsel to seek a change in venue that they refuse to do so.
Richard Kanner: Those are exactly the questions which I want this Court to answer Mr. Justice. My argue --
Abe Fortas: As I read your brief there's a pretty wide gulf between what the questions as you stated in here and the questions in your petition?
Richard Kanner: Mr. Justice my stating the questions here in oral argument is only to show that there wasn't a denial of due process.
Abe Fortas: I'm looking at your brief, it's true as well as listening to you?
Richard Kanner: Yes sir Your Honor and I only say that there was a denial of due process in this case because of these factors which I have alleged in my brief.
Thurgood Marshall: Mr. Kanner on the asking for the change of venue, I would assume there's a difference between a defendant suggesting to his lawyer that he ask for a change of venue, a defendant instructing his lawyer to ask for a change of venue and a defendant insisting that you either ask for a change of venue or get out. Which took place in this case?
Richard Kanner: Mr. Justice Marshall we have -- there was no evidentiary hearing so we have nothing but the Rule 1 allegation which says the defendant requesting his court appointed counsel to move for a change of venue, but they did not do so.
Thurgood Marshall: Do you think that's enough to sustain your point that he requested it?
Richard Kanner: Mr. Justice, if I were to redraft the petition and presuming that I thought that I could prove it. I'm certain that I would specify time, place and date and the exact language of --
Thurgood Marshall: Well I assume that the information that you used to make that statement was that -- all he did was the request.
Richard Kanner: Yes sir.
Thurgood Marshall: And failure to do it is denial of due process?
Richard Kanner: In these circumstances with the background of the televised confessions I feel that in these circumstances Mr. Justice that it was.
Earl Warren: Mr. Kanner, may I ask you was the testimony of the doctors about his mental condition given to the jury?
Richard Kanner: No, Mr. Chief Justice it was not. The --
Hugo L. Black: The two questions relating to [Inaudible]
Richard Kanner: That's correct Mr. Justice.
Hugo L. Black: Those are the only ones [Inaudible]
Richard Kanner: Yes sir. And my argument is to the effectiveness of counsel is only to show in these circumstances that the record conclusively shows that a post conviction evidentiary hearing was required. Counsel for the state has conceded that there's no question of waiver or adequate independent state grounds to support the appellate court. If the record is the statement, would have the Court believe showed positively that the trial on the question of mercy were a fair one, then there would be no due process question. My argument Mr. Justices is that the state contends one that the voir dire conclusively shows that the trial on mercy was fair. I say Mr. Justices that the voir dire or no voir dire, the trial on the question of mercy was not fair for reasons one, two and three and that we either need to have this case reversed, if this Court is going to have minimum trial standards or two if the Court rules that it is a duty then this Court has -- the case has to be reversed for only an evidentiary hearing.
William J. Brennan, Jr.: Mr. Kanner I don't have your petition for certiorari. Did I understand correctly, the point there was the error below is failure to accord a hearing in post conviction, on a post conviction application?
Richard Kanner: Yes sir, Mr. Justice.
William J. Brennan, Jr.: Well, if that so what remedy could we give you beyond saying that there was error and not giving you a hearing on all this?
Richard Kanner: Well, this is one of the remedies that this Court can do, if --
William J. Brennan, Jr.: Well, your brief concludes that you were entitled to a new trial. Well, no you started, you are entitled of an evidentiary hearing who the trial, request of mercy was unfair and/or new the trial if such unfairness is substantiated. So really all that you're asking us to do now, is to say that there was error and not affording your hearing on these allegations?
Richard Kanner: Yes, sir, unless this Court propitiously on it's own feels that such error is -- such unfairness is substantiated in the record and the reason I put it this way, is that this case is not quite Rideau v. Louisiana, because the only thing that shows actual I think if there was positive testimony of 18 people at the habeas corpus hearings that they had seen televised confessions of the defendant. I think this Court on it's own could reverse this case, but so far as the actual publication of these televised confessions were concerned, it's -- I only gathered from the questions on the voir dire from the state attorney and that's primarily and the -- there's no question about what the televised confessions were taped as positive testimony is to that, but so far their publication I only gathered this from the voir dire questions for the state attorney.
Byron R. White: Why didn't the -- what did the District Court of Appeals, is that what you call it?
Richard Kanner: Yes, Your Honor.
Byron R. White: Did the District Court of Appeals have a reason for affirming the denial of hearing on this particular point?
Richard Kanner: Because Your Honor in reliance on Sixth Circuit Sheppard versus Maxwell there was no motion for a change of venue and though --
Byron R. White: Well the Court said in term the decisions of trial court on this point and it said and this were the reason, they said no motion for change of venue was made.
Richard Kanner: Yes sir, Your Honor.
Byron R. White: Now, is it the law in Florida that the secondary and collateral relief is not available on publicity matters where no change of venue has been made, which is in effect to say that the remedy in Florida is to make a changes, make a motion for change of venue prior to trial and if you haven't made it you have to get -- you can't go any other way. Now, that's what that that means to me.
Richard Kanner: That's excellent what the law is in Florida now this is a case that we're appealing from --
William J. Brennan, Jr.: But, I wonder Mr. Kanner if that settled, if your property -- the Court you should have gone to is the federal habeas corpus, not here--
Richard Kanner: Because there this is a limitation on Florida's -- in effect of limitations on Florida's collateral remedy. This is -- Fay v. Noia was a federal case, not a state case.
William J. Brennan, Jr.: Fay v. Noia was a New York case.
Richard Kanner: Yes sir.
William J. Brennan, Jr.: Where a required notice was not available for some such procedural –
Richard Kanner: With Fay versus Noia Your Honor.
William J. Brennan, Jr.: Beg your pardon?
Richard Kanner: I say I am familiar Your Honor with Fay versus Noia.
William J. Brennan, Jr.: I'm just wondering would that have been on the Fay v. Noia is that the place you should have gone, the federal habeas corpus court instead of coming here?
William O. Douglas: Well that would take care of some of points that they rejected below. At this point is to whether there should been a change of venue, assuming the federal court -- the state court ruled it as I understand [Inaudible]
Richard Kanner: Yes sir, Mr. Justice. Well, it's for this Court to decide whether --
William O. Douglas: Whether that should be a state --
Richard Kanner: Whether I'm properly this Court or not. I feel that if there is such thing as standards to test the effectiveness of trial counsel.
Byron R. White: But don't you think that the state is given this point up?
Richard Kanner: Which point Mr. Justice?
Byron R. White: It stated on the -- that this inadequate state ground for denying a hearing?
Richard Kanner: Well they had conceded that there is no adequate statement.
Byron R. White: That it is not an adequate statement. Do you think that they -- did you think they really focused on this particular point and so – I know I've got their brief and I wondered if that.
Richard Kanner: Mr. Justice White I -- the reason that I my oral argument is taken the tact that it has is because the State says that he received a fair trial. There is no question of waiver. On page 21 of the state's brief, the state says, if I can quote that in a second, the state does not regard of the factual situation in the instant matter as being a waiver of petitioner's rights. It is state's position because the jury was in fact fair and impartial petitioner's constitutional rights were preserved by his counsel and consequently there was no waiver. But in view of this concession I think that -- so far as argument is concerned that I have to come forward to show that the constitutional rights were not preserved because of items one, two and three. The present test to determine the adequacy of court appointed counsel was whether such trial resulted in a farce. And I hardly feel that this standard approaches anywhere close to the level of, this court laid down last term in Anders versus California where appellate counsel, that is a counsel must be an active advocate. The -- I invite the court's attention to just numerous recent law review articles. There is numerous recent editorials and articles in the American Bar General and of course the American Bar Association's project to establish minimum standards and I invite the Court's attention to all of these articles to attempt to show that there is some need to establish minimum standards and if there are any type of minimum standards whatsoever then such minimum standards were violated in this case.
Potter Stewart: I want to be sure I understand you are familiar with what standards, what the violations were, a failure to move for change the venue, that's one?
Richard Kanner: Mr. Justice as to regardless or irregardless of any request or suggestion or demand by client I think there was a failure to move or change of venue or at least they continue was one, yes sir.
Potter Stewart: One and --
Richard Kanner: Second was failure to exempt the litigating expert testimony from the psychiatrist and lastly was to request an instruction from the court to the jury and so far as the question of mercy was concerned that this jury had to disregard all of the attendant publicity of that -- these other six or seven murders and limit its discussion on the question --
Potter Stewart: Confine itself to the evidence that its been introduced to the courtroom?
Richard Kanner: Yes sir. I feel that --
Hugo L. Black: What were the charges and penalties?
Richard Kanner: Excuse me Mr. Justice I didn't hear you?
Hugo L. Black: I presume that charge [Inaudible]
Richard Kanner: Your Honor of course it is and there was an instruction from the trial judge that the jury shall make its determination of facts on this, on this record, or this evidence or was one cause of the sentence. So far as the question of fact was concerned that the jury should confine itself to the evidence, but of course there were no facts to decide. Now as to the applicability of existing precedent the state has as I've read has conceded that there was no waiver. They have – and the State of Florida now recognizes that res judicata is not actually applicable in matters which let's say are actually raised. The state has made no explanation as to why there was no instruction relative to publicity immensely or why that there was no motion for a change of venue or instruction.
Hugo L. Black: Were there any evidence to that was submitted?
Richard Kanner: Pardon me.
Hugo L. Black: Were there any evidence that was submitted?
Richard Kanner: Mr. Justice Black the whole record trial and habeas corpus is replete with comments about taking this boy's picture in front of the television.
Hugo L. Black: Was there any evidence before the jury about the publicity?
Richard Kanner: No Your Honor.
Hugo L. Black: Well how come the court, what the judgment the court charged [Inaudible] there is no evidence [Inaudible]
Richard Kanner: Your Honor I think that this Court has held in Rideau versus Louisiana and more probably more particularly pointed in Marshall versus United States. Marshall v. United States was a case where trial was in progress and they sequestered or they broke through the night recessed and there was evidence in Marshall prior records or convictions of the defendant which would not be admissible and the trial judge in Marshall took each of the jurors into his chambers and asked them will you disregard this. And each of the Juror said certainly we will and we will base our record on the evidence, base our verdict on the evidence. This court nevertheless reversed. I feel that the reasoning in Irvin versus Dowd, Mr. Justice Black is that sometimes when things can be so bad that regardless of presence or absence of what a juror says that the case has to be reversed. We've got Rideau versus Louisiana standing for that and certainly Turner versus Louisiana, a case where the jury was taken out by the two of the witnesses over the deputy sheriffs, as [Inaudible] v. Texas everyone said that they were going to be fair. So the fact Mr. Justice Black that there was no evidence actually introduced as Court noted in Marshall versus United States at least when you introduce evidence you have some protective proceeding but if the evidence is not introduced and everyone knows about it anyway there are no protective procedures.
Hugo L. Black: You are complaining about [Inaudible]
Richard Kanner: Excuse me Mr. Justice I didn't hear you.
Hugo L. Black: I understand you say that you didn't know anything about the confessions yourself?
Richard Kanner: Only Your Honor that I have confined my remarks to the record, what is in the record is that the tapes were television tapes, video tapes were taken and it is apparent from the record and no one has ever disputed it that they were actually published obviously I don't think that there is any real dispute is to that Mr. Justice Black and that besides the television tapes, the allegation in the petition that he received such wide spread adverse publicity to the extent that he could not receive a fair --
Byron R. White: Any of the, how about the Jurors that we are actually chosen by the case, any of them ever, did they admit having seen the television show?
Richard Kanner: Mr. Justice White not the first Juror was asked, what exactly did you see or what exactly did you read or what exactly did you hear.
Byron R. White: I mean on voir dire?
Richard Kanner: Yes sir.
William J. Brennan, Jr.: Not, no question were put to the --
Richard Kanner: The only--
William J. Brennan, Jr.: Well what was the question that was --?
Richard Kanner: The questions were, will you give this boy a fair trial, have you expressed an opinion. Some of the Jurors were asked have you formed an opinion, but not the first Juror who was asked what had you seen.
William J. Brennan, Jr.: And they were -- were they, any asked have you read any thing about this case in the papers or seen anything about it on television?
Richard Kanner: No Your Honor it was not the first, direct question was asked, the questions were leading now you may have seen something but will you give this boy a fair trial anyway, this was the tenor of the 200 people.
Potter Stewart: The appendix to the respondents brief purports to contain the crucial voir dire of each one of the Jurors I guess is that reasonably accurate?
Richard Kanner: I have read the appendix, it's accurate statement of record.
Potter Stewart: Seem to be [Inaudible] as to the nature of the interrogation on voir dire?
Richard Kanner: Counsel for the state relies on Beck versus Washington which of course is, I say of course I feel is nowhere, anywhere close to being in point. In Beth there was lots accusatory publicity but there was actually no confessions. I believe the distinction between a confession and other accusatory publicity has been, I think is crucial. This Court is, not this Court the Sixth Circuit in Shepard versus Maxwell noted it in Sixth's Circuit's opinion dismissing the Shepard Petition that is the Sixth circuit said that there is a big difference between hearing confessions of the defendant and this other accusatory publicity. So I feel Mr. Justices that the record shows that while there may not have been actual prejudice, the prejudice is inherent in this entire record that this boy was tried for six or seven, actually seven or eight murders at one time.
Potter Stewart: He was 17 years old?
Richard Kanner: Yes sir at that time. I feel that in view of the state's concession that this court here has the opportunity to declare itself in favor of American Bar Association projects that seek to raise the standards by which indigent representation can be had. I think the Court has the opportunity here to reaffirm the proposition as set out in Sheppard v. Maxwell that sometimes the court, trial court has a duty on its own to prevent unfairness. I think this court has an opportunity here Mr. Justices to establish some type of adequate standards to measure effectiveness and duty of court appointed trial counsel that such standards would reinforce the unanimous mandate of this Court's mandate in Gideon v. Wainwright --
Potter Stewart: Excuse me what concession of the state are you referring to?
Richard Kanner: On page 21 of their brief Mr. Justice, or maybe it's on page 20 where it says the respondent does not regard the factual situation --
Potter Stewart: It being a waiver of --
Richard Kanner: Yes sir.
Potter Stewart: I see, I see.
Richard Kanner: I'd also urge conversely that to affirm this decision may it very possibly establish a precedent that this Court possibly might approve the (Inaudible) of the representation in this case and that it would certainly be -- affirmation of this case I believe would certainly be in sharp contrast to our goal of having equal justice under the law. So in answer again to and in summation and closing I would again like to answer Mr. Justices Stewart's question that I feel that in this case that the failure to move for a change of venue were tenuous, or to have jury instruction, or to present expert mitigating witnesses, the psychiatrist, when viewed against this background of the publicity certainly violated minimum standards and it's because it did violate minimum standards that this case should be remanded back to the district court to either -- for either a new trial or for an evidentiary hearing to prove the existence of the pretrial publicity.
Earl Warren: Mr. Carlisle.
James T. Carlisle: Mr. Chief Justice, and may it please the Court. I have no desire to argue my friend's case for him and -- but I would like to answer some of the questions that were raised by the Court and I feel were not adequately answered by the petitioner. There were some other issues as to the fact which and by the way they were accurately stated to you, but there are just a few things I want to make clear about the facts. Now as I understand the petitioner's position it is simply this. He alleges in the Rule 1 petition, that's our 2255 or your 2255 we call it Rule 1, he alleged in his motion for collateral attack, his motion to vacate the judgment and sentence that he was denied or that there was this pervasive pretrial publicity including, and it says tape recorded confessions of the defendant, which were broadcast over local television stations and local radio stations. Now I don't think we have a Rideau situation if we base or bottom our thinking solely upon the allegation as made in the Rule 1 petition. He does not allege there was a picture appearing on the television screens of Dennis Whitney being interrogated by the sheriff. I think the allegation is simply that there was this tape recorded confession, which was played.
William J. Brennan, Jr.: May I ask? Did the fact of televising of this confession become known to the trial judge at the trial when any other respect was brought into the trial proceeding?
James T. Carlisle: Judge I don't know whether--
William J. Brennan, Jr.: We don't have the original file record here?
James T. Carlisle: No, and let me say this, there is a very little of the original file record, most of it is taken by the voir dire. Let me just say this. I don't know that there was any television broadcast. My position is like on any other -- the respondent on any 2255 for the purposes of determining whether the motion for collateral relief alleges sufficiently to grant an evidentiary hearing. We must take these allegations as being true and I have lived in Florida at that time and I have to--
William J. Brennan, Jr.: All you fellows seem to get there lately?
James T. Carlisle: I am almost a native, I was just away for a while.
William J. Brennan, Jr.: I understood you to say [Inaudible]
James T. Carlisle: He was not in Miami at that time I believe he said he did not live in Dade County. Mr. Kanner is old and – of an old and very respective legal family in Florida.
Thurgood Marshall: Mr. Carlisle.
James T. Carlisle: Yes sir.
Thurgood Marshall: Nobody here in this courtroom knows as of now what was shown over television. Is that right?
James T. Carlisle: That's correct Your Honor.
Thurgood Marshall: So why should we have an evidentiary hearing to find that. What is your objection?
James T. Carlisle: Because you don't need one.
Thurgood Marshall: Why not?
James T. Carlisle: Well, let's, let me I guess I am getting ahead in my argument, but I am glad you asked the question because it's a beautiful time to answer it. Let's take Rideau. Supposedly it has situation just like Rideau, now it's my position that even if we had a Rideau situation that this Court did not say in Rideau that when we have such a situation we are not going to let you bring in any evidence of voir dire. We are just going to automatically assume that because we have that situation, there could not have been a fair trial. I don't think that's what this Court meant to say and I don't think that's what this Court said. I think Rideau and Irwin and Sheppard and Estes and all of these cases mean simply this. That when you have a situation, a pervasive adverse pretrial publicity that then the burden shifts to the state to show that no prejudice juror got into that jury box. I say that by the way this appendix Mr. Justice Stewart is all of the voir dire relating to pretrial publicity of every person.
Byron R. White: What was the defendant's counsel's name? Which one is he in the voir dire?
James T. Carlisle: We had, no Gerstein is our state attorney in Dade county and Mr. Block is in there too as, also an assistant state attorney at the time. We have Max Swan who was the defense counsel.
William J. Brennan, Jr.: And Judge Goldman.
James T. Carlisle: Judge Mitchell Goldman.
Byron R. White: The defense counsel had complete opportunity to question each juror?
James T. Carlisle: Yes sir and did so, I say and if you read the appendix did so with vigor.
Byron R. White: Well now of course your ground if you just – you spoke of -- it's not a ground I believe there are -- that was articulated by either at the trial court which dismissed this petition and nor by the Court of Appeals which confirmed it, and isn't the reason that district court appeals gave, it was saying that on this point there need to be a hearing.
James T. Carlisle: No I -- it is of course my argument and it was in the third district court that the voir dire proves that this was a fair trial at least as far as the jury, the composition of the jury --.
Byron R. White: That's what said in its opinion --
James T. Carlisle: That's right, but –
Byron R. White: -- the court said he didn't move for a change of venue and that's the end of it. That's a state, that sounds like a state ground that you either move to change the venue, where you had that collateral relief. That's what it sounds like.
James T. Carlisle: Let me again I think I started out saying I didn't want to argue my opponent's case and yet I want to make clear what I think his position is, and I believe I can do this I only got far of it out and I began to answer questions and I am not deferring your question I am going to answer it right now. His second allegation is that he was denied the effective assistance of counsel because counsel failed to move for a change of venue and I understand from oral argument now, there is something about it in the brief that I never really understood the relevance of it, and I didn't respond to it, but that he failed to ask for instructions, that he failed to use the psychiatric testimony. I am prepared to answer these questions. So I think that we're properly before this Court and I always want to say as long as we are in the Court, let's have that, but we properly here because counsel has very clearly coupled the one, the adverse pretrial publicity argument to the competency of counsel in failing to do something about the adverse pretrial publicity.
Abe Fortas: I want to ask you a very question that I try to put as simply and directly as I can. I don't believe you finished your answer to Justice Marshall's question. The record, the trail record did not contain a description or evidence with respect to these television broadcast, is that right?
James T. Carlisle: That is right, Your Honor. The only thing in the trial record making any reference to it is the voir dire and these are states that--
Abe Fortas: Alright, alright I understand.
James T. Carlisle: Alright.
Abe Fortas: Now subsequently collateral proceedings the court did not afford the defendant, petitioner here an opportunity to introduce evidence as to that prejudice, allegedly prejudicial publicity is that right?
James T. Carlisle: That is correct.
Abe Fortas: Now the question is, whether the petitioner here was deprived of constitutional right by reason of the court's refusal in collateral proceeding to permit him to present evidence with respect to this prejudicial publicity. I don't believe that received much attention in your adversary's argument. Justice Marshall asked you a question along those lines. I now repeat the question in this form. What is your position with respect to the, to that question, was it or was it not constitutional error for the state court to refuse in these circumstances where a man faces death penalty to admit evidence of the – this allegedly prejudicial pretrial publicity and that sets a legal question to this Court on which I'd like to hear your position?
James T. Carlisle: Alright Your Honor my answer is that it was not a denial of due process for this reason that assuming as we must in the posture of this case that there was adverse pretrial publicity that nevertheless the voir dire examination of the jurors establishes beyond any shadow of a doubt that no prejudiced juror was seated in that Jury box.
Abe Fortas: Now you are saying that if this was error, was harmless error, I'm not sure it depends on the legal infirmity here if there is a legal infirmity?
James T. Carlisle: There is no legal infirmity, there is no harmless error.
Abe Fortas: Let's point to, now lets see your position on that. The first point is that in view of the voir dire questions there was no harm done, correct?
James T. Carlisle: I don't like it when you say there was no harm done Mr. Justice.
Abe Fortas: Well you stated it your way but give me a complete answer to that.
James T. Carlisle: Well Mr. Justice my position is simply that no evidentiary hearing is necessary if, I assume and I am positive that in Florida or that in the Federal courts under 2255 a motion to vacate a judgment and sentence is handled the same way it is in Florida. The trial Court Judge reads the motion and he determines from the motion that the ground A, B and C are frivolous, but ground D, if true would require an evidentiary hearing. Now at this point the judge then turns to the record and I might add this judge was the same judge, he was a trial court judge, he then turns to the record and examines this and if ground D is not conclusively refuted by the record then he must grant an evidentiary hearing. So I suppose that I could very accurately I hope in answer to your question by saying that the record of the voir dire in the case at Bar conclusively refutes the petitioner's allegation insofar as he alleges that he was denied a fair trial by reason of adverse pretrial publicity, even if we assume that its all true as he say it is.
Thurgood Marshall: Mr. Carlisle, can you conceive of one or more television performances that would make it on its face impossible to hold a trial in that area?
James T. Carlisle: You know we asked this question at the time Oswald was shot by Ruby, everybody saw it many, many times. Now is it possible to conduct a trial in under such circumstances? We've never had to conduct such a trial under such circumstances.
Thurgood Marshall: Well do you agree that there is a possibility of such a television show? I am going to be probably fair with you if you say yes, I am going to say why can't see what's here, we were fair that's where I am going?
James T. Carlisle: You wouldn't consider me unfair if I said no, would you Mr. Justice?[Laughter]
Thurgood Marshall: Under those circumstances I would not?[Attempt to Laughter]
James T. Carlisle: No seriously Mr. Justice I don't know maybe, you know I said I have always been a --
Thurgood Marshall: I remember you said a minute ago once we are here, let's sort it out?
James T. Carlisle: I know and --
Thurgood Marshall: Well you were there and --
James T. Carlisle: I know and --
Thurgood Marshall: And he had a chance to putting on the evidentiary hearing and then you said no.
James T. Carlisle: I think that -- I have always been, well I have always been a prosecutor on the prosecution side, there are very many times when I could see a case, a defense case and say well I'd like to defend the case. I think every lawyer feels that way, I want to go to trial in any side. I'm not so sure that somebody in the Ruby situation could not have been defended effectively despite the fact that every person in that jury box saw what happened, it wasn't free from doubt.
Thurgood Marshall: But Mr. Carlisle in this according to the allegations he not only confessed to this one, but he confessed to, I've lost count of them, how many of them?
James T. Carlisle: He killed a total of seven people he shot one man with gun.
Thurgood Marshall: Wouldn't that be material to whether or not he was entitled to mercy, not guilty or anything but mercy?
James T. Carlisle: You mean that perhaps these Jurors saw this. Well I can only refer you again to the voir dire. It's this, perhaps it's the size of city of Miami, the transient population, I don't know what it is but people in the newspaper business or the news media business who read this are dismayed I mean we might go rat fishing their product for all that is red. The Jurors had only a cursory knowledge of this case. Some of them in, reading between the line I'd say, we are almost totally ignorant of the facts of this case. Now maybe this speaks for our crime rate that perhaps Dennis Whitney was just buried I don't know, but the, as I see it Your Honor we cannot -- Let me put it this way, yes it's probably many situations in which television Rideau I believe was one there no doubt about that that it would be impossible to obtain a fair trial at least at that time. But in Rideau there was no, well there was evidence of the voir dire but what did the evidence show. Now we admittedly the rule is that it does not happen to be a nexus, I believe in ST's and so on, we have, we have, you have, you've done something to Rideau. Now you say that Rideau holds that, there didn't have to be any nexus. Mr. Justice Clark had dissented in Rideau because there had been no showing of a nexus. I thought when I read Rideau that there was. But in any case the rule now appears to be that there does not have be to a showing between the community prejudice and the jury prejudice. As I see it Your Honor that if in Rideau instead of eight jurors saying well I have reached a -- I believe this is the facts, eight jurors saying I have formed an opinion based upon what I've read, heard and seen, but I'm willing to listen to the evidence and if you can convince me that he's innocent, I'll vote that he's innocent. Now, that was what Rideau had to face. That's not what Dennis Whitney had to face and again I refer to look to the voir dire examination in the record and for your convenience as the appendix of this brief.
William J. Brennan, Jr.: Mr. Kanner may I just --
James T. Carlisle: I am Carlisle.
William J. Brennan, Jr.: I beg your pardon, excuse me, may I ask you a question on a different subject. Justice White asked earlier the opinion of your appellate court is not to be read as holding, that because there was no request for a change of venue, the petitioner was not entitled to an evidentiary hearing on these allegations. Now, on the premise that's the way it is to be read and I must say it strikes to me that's the way it is to be read, is the State of Florida telling us that this is not an adequate state ground for denying him an evidentiary hearing under your post conviction procedure?
James T. Carlisle: Your Honor, I hate this argument by adequate state grounds, but anyway let's go into it a moment. Perhaps if the only --
William J. Brennan, Jr.: But you may hate it but let me suggest you that it has a very great bearing on our jurisdiction?
James T. Carlisle: I understand that Your Honor, but if the only contention raised by the petitioner had been the adverse pretrial publicity perhaps the holding of the Third District Court of Appeals of the State of Florida that failure to move for a change venue and failure to exhaust the peremptory challenges constitutes a waiver or an adequate state ground. If that were the only allegation that were made, I would say the Court had no jurisdiction because this was an adequate state ground. And I do not say that I agreed the decision of the the District Court of Appeals. We argued want more to the –
William J. Brennan, Jr.: You may not agree with it but I expect we have to, we're governed by it and in fact an adequate state ground, isn't it?
James T. Carlisle: If in fact –
William J. Brennan, Jr.: That was the Court held, whatever might be your view of?
James T. Carlisle: I think they could have set a great deal more and I would like to state it here, let me continue to answer your question though, as I say that if the only allegation had been this pretrial publicity that would have been an adequate state ground, but counsel has also alleged that the -- he was -- petitioner has alleged that he was denied the adequate assistance of counsel or the effective assistance of counsel in that his attorney failed to move for a change of venue, failed to ask for these instructions, fail to use the psychiatric witnesses and that would -- I would like to make that portion of my -- that portion of this case, that issue, the second portion of my argument. As I -- the first one that we about exhausted I believe is just simply this, that it did not move for the change of venue. Of 150 venire men he only, a total of a 150, the state and the defendant only examined 48. Of a total of 10 peremptory challenges afforded to the petitioner, petitioner only exercise seven. Now, this may not be conclusive but when you couple it with the second argument.
Byron R. White: The second argument where?
James T. Carlisle: My second, your – [Laughter]
Byron R. White: What about his -- was this -- was the argument about denial of effective assistance of counsel raised in the District Court of Appeals?
James T. Carlisle: Oh yes Your Honor it was.
Byron R. White: Why didn't the District Court of Appeals passed on it?
James T. Carlisle: I'm not so sure they didn't but if they --
Byron R. White: Well, they certainly didn't pass on it as respects the publicity failure to move for change of venue. They did talk about the psychiatric witnesses, but the only -- they just tied it down as being raised and none of them have effective assistance of counsel?
James T. Carlisle: Your Honor, they close by -- its not because we didn't tell them either, it's -- they closed by saying that the quoting from the record of the Supreme Court in the habeas corpus which Mr. Whitney took to the Florida Supreme Court the opinion and that just simply says the record is to devoid of any evidence that petition's counsel failed to act in good faith, whether they -- it's quoted on page 8, and 9 on my brief, I don't want to read it to you, at any rate that's the only mention they make of whether counsel was confident or not. They bypassed that issue so to speak, unless you consider that a holding on the effectiveness of counsel. The second argument is just -- I don't know, the second argument is just simply that the defense -- the defendant was denied the effective assistance of counsel because his attorney after being told or requested by the petitioner to move for a change of venue he didn't do it. And now we hear on oral argument that after being -- that he failed to ask for cautionary instruction as to the pretrial publicity and that he failed to use the psychiatric witnesses. The petitioner tries to draw a line between pretrial strategy and trial strategy. I'm not so sure that this line can be drawn. Certainly we recognize that the decision of whether to plead guilty is ultimately up to the defendant, the decision of whether or not to take an appeal is ultimately up to the defendant, but when you get into questions like whether to move to quash an indictment or an information, whether to move for a change of venue, these questions I submit are part of the trial strategy even though the motion might very well be made long prior to trial. Now as far as the --
Hugo L. Black: Because the lawyer [Inaudible]
James T. Carlisle: That's what they allege.
Hugo L. Black: They allege but the court – has the lawyer [Inaudible]
James T. Carlisle: As far as the transcript of the habeas corpus and that's really the only point where we get to ask the attorneys and happened, there's no evidence about it, it was not an issue at that time and we must take as true. We must take it as true the fact that he asked his attorney to move for a change venue and that his attorney failed to do so. I say that a motion for a change of venue is, although it might be filed long prior to trial, is part of the trial strategy and for this reason because the most appropriate time absent a Sheppard situation for instance, the most appropriate time for the trial court judge to make his decision on whether or not to grant this motion is during or after voir dire when he confined well this fellow is not going to be able to get a fair jury. This area is so permeated and everybody knows about it and every jurors that's been up here has got some sort of an opinion, I'm going to grant his motion, but by the same token a lawyer who had filed such a motion could very well find himself with a jury or with a panel of persons in the jury box which he could accept which he feels is the best possible jury that he can get and in which case I think it would be up to him to withdraw his motion or at least not raise it again. So I think very well that's what happened in the case of Beck.
William J. Brennan, Jr.: What was there interval between the date of his arrest in West Palm Beach and the date of his trial?
James T. Carlisle: Your Honor, I'm not sure I'm giving you a perfect answer. I think it was six months, it was less than the time in Beck, Beck I believe was nine months Beck versus Washington.
William J. Brennan, Jr.: And anything -- because we don't know at all when if ever the state televised it?
James T. Carlisle: We don't know when it was broadcast.
William J. Brennan, Jr.: Whether it was close to trial or rather back at the time of arrest, we know nothing of that.
James T. Carlisle: No, we don't. But as I -- again as I say when you read the voir dire, there's no necessity to rule on whether or not the --
Hugo L. Black: Then I guess you would have to assume jurors [Inaudible]
James T. Carlisle: Well, if you wanted to reverse this I think you're going to have to say that voir dire is no longer a useful tool and while you might as well then go on and say that that sworn testimony in court is no longer useful tool in determining truth. Because if jurors lie and they're under an oath, if they lie when they go into the jury box and I am sure that they do just as witnesses do.
Hugo L. Black: But do you now assume that in every cases of trial unless they adopt a -- wanted to use retroactive, non retroactive rule to the evidence, you have everybody hearing [Inaudible] you could demand and get a constitutional evidentiary hearing [Inaudible] because he alleged some statement made by him were uncovered?
James T. Carlisle: Unless of course we could prove the statements were not manky.
Hugo L. Black: Well but I am talking about the constitutional rights and evidentiary hearings, constitutional right that is evidentiary hearing. In every case that is passed up here [Inaudible] that a man can hear, and a man evidentiary here I guess I can rate that as to the trial and then take it all the way to this Court if he doesn't get [Inaudible]
James T. Carlisle: That specter does present itself but I would say there are two -- as a prosecutor now there are two ways you find such a motion, when the allegation is made you find – you gather up all of the publicity and say this is all there was although the burdens fall on me.
Hugo L. Black: On finding you would have evidentiary hearing before the court?
James T. Carlisle: That's right, this -- such an allegation it would --
Hugo L. Black: Constitutionally speaking.
James T. Carlisle: I don't know about constitutionally speaking.
Hugo L. Black: I mean if, this I assume if it's a decision of reversing this, it'll be a constitutional decision on the federal -- United States constitution not just the question to whether we want to say that that practice of [Inaudible] question of really constitution.
James T. Carlisle: If I understand you Your Honor I believe you are saying that from this time on anyone who came forward in a 2255 motion or anybody who came in a Florida Rule 1 motion and alleged that there was this adverse pretrial publicity a la Rideau, but right then we would have to have an evidentiary hearing and you are right.
Hugo L. Black: It would have to be, yeah.
James T. Carlisle: You are right. Now I just don't think that a trial lawyer is required to do what a 17-year old boy tells him to do. If he is required to do this, he is nothing more than a mouth piece. 17-year old boy says get up and object to that evidence, yes sir, I object Your Honor. Sit down and don't talk so long now, okay and this is not the way I am ever going to try a case and I don't think any other confident lawyer would do it. Now counsel has mentioned Powell versus Alabama, Gideon versus Wainwright, you convinced the people of State of Florida of the necessity of counsel. Certainly we now recognize that a defendant in a criminal trial is entitled to the guiding hand of counsel in all aspects of his trial. Now how are you going to give this man the guiding hand of counsel and at the same time say that every time the defendant wants the attorney to move for a change of venue, wants the attorney to request particular instructions, wants him to object to certain evidence, wants him to use certain witnesses.
Thurgood Marshall: To the contrary, I understand petitioner's point, one that this publicity was so violent and so horrible and so everything else. Two, that whether or not requested, a good lawyer should have asked for change of venue, isn't that really what his point is, with or without the request?
James T. Carlisle: Yes, that is his point and I'd say to you that --
Thurgood Marshall: That depends on how bad the publicity was?
James T. Carlisle: No, I don't say that, I say that even if the publicity was as bad as Rideau, if in Rideau you are able to show from the voir dire examination that no prejudice juror found his way into that jury box, you would not have reversed and that all of these decisions --
Speaker: That's what the Rideau says [Inaudible]?
James T. Carlisle: Well I believe you and Mr. Justice Clark dissented in that.
Speaker: Yeah I think it seems under no circumstances [Inaudible]
James T. Carlisle: Well I am not going to tell you what the Court said Your Honor but my reading of Rideau is simply that I saw when I read it that there was a nexus between the publicity and between the trial. Now you and Mr. Justice Clark have decided because --
Speaker: [Inaudible]
James T. Carlisle: Yes you dissented because you said that there had been no nexus shown. I respectfully disagreed with you even though you were favoring the prosecution in the case. Now I say that the rule is now, despite the facts of the rule is now that there need be no nexus shown between the community prejudice and the jury prejudice that if that at this time that once you to show sufficient prejudice to, sufficient adverse pretrial publicity to show the possibility of that type of community prejudice, that then it becomes duty of the state to show by some means preferably by the voir dire as was done in this case that no prejudice jurors found the way into the jury box. Now as far as I don't know I can't get inside of defense counsel's mind at the time they tried this case and I wonder if an evidentiary hearing will be of any value. It would certainly put them in a strange position where they would, if they get on the stand and they say, my reasons for doing what I did were good reasons then he is hurting his former client. If he says my reasons, I did what I did were because I'm not a very good lawyer, I just can't conceive of any lawyer wanting to do this and any lawyer who realized that he would have to be subjected to this type of thing in the future would ever take an appointment in a criminal case. I for one --
Thurgood Marshall: These two lawyers have already testified.
James T. Carlisle: Would not as to this Your Honor.
Thurgood Marshall: They testified the habeas here.
James T. Carlisle: Yes, but not as to -- their reasons for not using psychiatric witness.
Thurgood Marshall: They testified that they did a good job, they realized that that was one of the charges against them.
James T. Carlisle: Yes.
Thurgood Marshall: I want to raise the point about they wouldn't want to testify, they've already testified once.
James T. Carlisle: Well, let me say --
Thurgood Marshall: If they testified once, it wouldn't hurt to testify again, that's not the point?
James T. Carlisle: Well, let me make the point too that I wouldn't want to have to testify the first time much less the second time.
Speaker: [Inaudible]
James T. Carlisle: Yes, Your Honor.
William J. Brennan, Jr.: [Inaudible] I'm looking at 462 and 463 of the record, do you have it there?
James T. Carlisle: Yes sir, Your Honor.
William J. Brennan, Jr.: These apparently are the assignments of error before your Court of Appeals.
James T. Carlisle: Yes sir, I am.
William J. Brennan, Jr.: I have difficulty finding, perhaps you can point out to me. Under which of any of these or how many of them is there subsumed this point of denial of effective assistance to counsel.
James T. Carlisle: Without taking great deal of time Your Honor, I do not know that it is there, I'll leave it to Mr. Kanner to bring it.
William J. Brennan, Jr.: The reason I asked, Justice White asking I think both of you and Mr. Kanner earlier, certainly the opinion of Court of Appeals makes no reference to an issue of effective assistance of counsel. And I just suggest I think it's understandable, that, that point wasn't raised as I read these assignments of error, I don't see that it was ever raised before the Court of Appeals, whatever may have been the case in the habeas corpus proceeding.
James T. Carlisle: Your Honor --
William J. Brennan, Jr.: This is another proceeding, isn't it?
James T. Carlisle: Yes, it is but Your Honor let me say this that I assure you that Mr. Kanner argued this very vigorously before the Third District Court. Now, if the Third District did things the way I would like them to do it, they would not have heard this point, but they are very liberal about this.
William J. Brennan, Jr.: I know but they may have listened to him but they certainly didn't address themselves to it in their opinion, did they?
James T. Carlisle: No, they did not other than as I stated before they quoted something from the Supreme Court opinion as to the effectiveness of counsel but that's a rather tangential holding I would say. Now, I can -- as I say I can't get inside of the defense counsel's head but I can see why defense counsel would not have put on the psychiatric testimony. All you have to do is look at psychiatric testimony. First of all, I believe it will open the door to the fact this man had killed six other people and shot another one who happened to live four times in the head, look at page 23 of the record. I can't think of anything more damming to have in evidence and that's seems to me a very good reason for deciding not use this type of testimony. I don't know why defense counsel did not request a certain instruction, I'm not even sure that he didn't but I would think that if I were defense counsel that I might not want the jury put on notice again that there had been all this pretrial publicity that this fellow must be a real bad guy, I just wouldn't want it. I think I might be very happy to go trial and take my chances on the Court's standard instruction as to evidence heard from the witness stand. And again back to the change of venue, I think that counsel after being requested by his client, this defendant to move for a change venue that this decision was up to defense counsel and he made the decision at some time during the voir dire examination. I think it is apparent from the voir dire examination that at some point defense counsel decided that, you know this looks like a pretty good jury to me, let's go to trial, let's hear it on the issue. And as I say I've cited Nelson as being the controlling case on this issue, I'd like to -- they're talking about it doesn't make any difference as to whose decision is as to make. Now of course Nelson wanted to object to allegedly unlawful search and seizure and the Court held, well this was the decision for counsel not the defendant to make. And that counsel's decision is binding on the defendant except for in unusual circumstances which they feel is fine and so the Court says now this is the same situation as Whitney had. Nelson had asked his defense counsel object to that testimony, object to this evidence and the counsel refused to do it. And so the Court then says does the fact here that there was prior consultation with the accused and that he disagreed with counsel's strategy make a legal difference. The question is not in before the Supreme Court. Our view is that the result should be the same meaning that it did not make any difference. So I submit gentlemen that the issue of the adverse pretrial publicity is controlled is by the voir dire examination and that these decision – decisions be made solely by counsel. Thank you.
Richard Kanner: May it please the Court, in the short time remaining Mr. Justice Brennan and Mr. Justice Fortas and to get over the jurisdictional problem what the third district did they said that it was a waiver of a Federal right and this Court's clear holding that waiver of Federal rights that is the question of publicity is a Federal question. So what the --
William J. Brennan, Jr.: So I just don't read it that way Mr. Kanner I read it there is nothing more than a determination, decisive like that of the Court of Appeals in Fay and Noia. Fay and Noia was a case where he had to take in a direct appeal, the Court of Appeals of New York held for that reason the post conviction remedy of coram nobus was not open to him under state law and I read this as saying no more and for our failure to request the change the venue, your 2255 counterpart was not open to him as a matter of state law and in either case the answer is that the proper forum for your client is Federal habeas corpus.
Richard Kanner: This is for this Court to decide. Now an answer to Mr. Justice as to your query as to raising the adequacy of counsel. I think we've got to go back here to the Rule 1 petition, which sets out the counsel without authority or justification didn't do one, two, three, four, five.
Byron R. White: [Inaudible]
Richard Kanner: Okay now Mr. Justice White without any type of hearing the trial Judge says in response to the state--
Byron R. White: Res judicata.
Richard Kanner: Res judicata.
Byron R. White: Then you came and said the following matters are not res judicata.
Richard Kanner: Are not res judicata.
Byron R. White: And you listed everything except that paragraph.
Richard Kanner: That was not res judicata.
Byron R. White: You listed everything except the paragraph dealing with your allegations.
Richard Kanner: They're before this Court here today.
Byron R. White: Well I don't think you took a look before the Court of Appeal.
Richard Kanner: Well, yes Your Honor this was the question of res judicata is to one, two, three, four, five.
William J. Brennan, Jr.: But what is your practice Mr. Kanner, this is assignments of error and it begins defendant assigns the following errors in this cause. Now aren't you acquired under your practice the list all of the assignments?
Richard Kanner: Yes, Your Honor.
William J. Brennan, Jr.: Well, these are the only ones you listed and not one of them that includes a denial of an evidentiary hearing on the point of alleged ineffective assistance of counsel, is this not one of them, says anything about it.
Richard Kanner: Mr. Justice my talking about ineffective assistance of counsel here is only to show that we were entitled we should have an evidentiary hearing. Now the Rule 1 petition is -- talks about violation of duties and obligations of trial.
William J. Brennan, Jr.: Oh, it certainly does but it -- my difficulty is, you don't seem whatever the reason may have been perhaps your practice permits it, but surely you didn't assign that as one of the errors in the denial of an evidentiary hearing when you went to the Court of Appeals, did you?
Richard Kanner: I am not going to--
Byron R. White: These are the same kind of errors that you list that the Court of Appeals lists as having been read.
Richard Kanner: Yes Your Honors this -- these were the assignments. The only order that the trial court entered was saying that this was res judicata. This is the only thing the trial judge did. The trial judge made no finding of waiver. There was no question of waiver presented in the apartment of defense. The trial judge said res judicata. Now one last, so I feel Your Honors that there is a Federal right here that the state court has – excuse me I see that my time is expired.
Earl Warren: Well, not as till the red light comes on.
Richard Kanner: So in one last, one last comment, the voir dire is still certainly and effective means to determine the fairness of a trial and I don't ever concede that it isn't. But I say this Your Honors that in this case the jury was not given the proper tools by which they should perform their function and their function in this trial was to determine whether or not mercy should have been extended. So far as this function was concerned I don't believe that the jury were given the proper tools to do their job. I feel that this Court does have jurisdiction that the adequate state ground that is troubling some of the Justices was a ruling on a Federal ground that is of the publicity which of course is a Federal question.