Earl Warren: Number 466, Larry Dayton Hudson, Petitioner, versus North Carolina. Is the State not represented? Oh, yes.
William Joslin: Yes, sir.
Earl Warren: Yes, sir.
William Joslin: Mr. Chief Justice --
Earl Warren: Mr. Joslin, you may proceed with your argument.
William Joslin: Thank you, sir. Mr. Chief Justice, Associate Justices. This case presents the question of whether there is a denial of due process of law for a State to refuse the pretrial request of an 18-year old defendant for the appointment of counsel for his defense. The record shows that he has only a sixth grade education and no means to employ an attorney and for the State then to proceed to try and convict him on a felony charge. The specific charge in the indictment of this case was that of common law robbery. The conviction was that of larceny from the person. Now, by North Carolina law, common law robbery is a felony punishable by a sentence of up to 10 years imprisonment. And larceny from the person is described as a lesser offense. However, the punishment for larceny from the person, which is also a felony, is a maximum of 10 years imprisonment. Thus, we have the same maximum sentence in either case. And it would be a lesser offense, as I -- as I view the case only in that there is a lesser quantum of proof required. Now, the question was raised by the petitioner as appears on page 4 of the record, if you indulge me just a moment. The State was represented at the trial by a solicitor and his assistant. The petitioner, Hudson, was tried along with -- with two codefendants. One of whom, David Cain, had attorney of his own choice. The record reads as follows, page 4, State represented by Solicitor Braswell and Assistant Solicitor Blackwell. Defendant David Cain represented by Attorney McGeachy. Other defendants not represented. Defendant Larry Hudson, “I don't have funds to employ an attorney and I'm not capable of defending myself. If the Court please, I would like to ask the Court to employ me an attorney.” Atty.Blackwell, “I will say that he is not able to employ an attorney. But as to whether he is able to represent himself, I cannot say.” The Court, “The Court will try to see that your rights are protected throughout the case.”
Speaker: Did the -- the defendant who had a lawyer, did he fair better than the two who didn't have lawyers?
William Joslin: Yes, sir. The defendant who had a lawyer, David Cain, entered a plea. At the conclusion of State's evidence, he was given a suspended sentence. Six months suspended on certain conditions. The defendant, Hudson, petitioner in this case, was given a sentence of three to five years in the State's prison and the other defendant without a lawyer, Ray Stalling, was given 18 moths to two years, not in the prison, but on the roads. The petitioner in this case filed notice of appeal following his conviction, but the appeal was never perfected and this case was brought here later as a result of a post-conviction proceeding brought under North Carolina law, which involved a petition back to the trial court. The appointment of counsel by the trial court, a hearing on the allegations of the depravation of constitutional right of counsel and an order was entered following that hearing denying the relief. Writ of certiorari was taken to the North Carolina Supreme Court. From that order, the North Carolina Supreme Court denied the petition without opinion.
Hugo L. Black: Did you say the State appointed him an attorney in that proceeding?
William Joslin: The State appointed an attorney for the petitioner in the proceeding brought under the post-conviction statute to test the constitutionally of his trial.
Hugo L. Black: Is that authorized by state law?
William Joslin: That is authorized by state law. Whenever a petition is filed to test the constitutionally of a conviction, the State will be -- the Court will inquire to determine whether or not the petitioner has the means to employ counsel of his own and if he needs counsel at such hearing. Upon determining that he does need counsel and does not have the means to employ a counsel, the State in the post-conviction hearing by statute will appoint -- the judge will appoint counsel for the petitioner.
Earl Warren: What is the criteria for determining whether he needs counsel in that situation?
William Joslin: Well, the main criteria seems to be that of -- of need, though the statute does not spell out the criteria. It -- it --
Earl Warren: Financial need?
William Joslin: Financial need. Yes, sir.
Earl Warren: But does any -- does any defendant who does not have the means have an absolute right under the statute to have a -- have a lawyer appointed for him in that situation?
William Joslin: I don't know that every -- in every case, there would be an appointment. But certainly, the statute sets out the -- I wish I had the exact wording before me, but that the Court will appoint an attorney where the defendant does not have the financial means to employ his own attorney. And the post-conviction proceeding then was held from the basis of -- with the assistance of counsel so appointed.
William O. Douglas: Is there --
Hugo L. Black: Does all post-conviction proceeding by a constitutional (Voice Overlap) --
William Joslin: Where a constitutional question is raised.
William J. Brennan, Jr.: This provision made was compensation of counsel in other cases (Inaudible)
William Joslin: Yes, sir. The counsel is paid by the county in question from which the conviction is obtained.
William J. Brennan, Jr.: Would it be fixed by the Court or --
William Joslin: Being fixed by the Court. Yes, sir.
Felix Frankfurter: May I ask you, whether I am right in inferring from the statement in -- what's the name of the judge -- judge -- presiding Judge Hall's findings of facts on page 62 of the record, filed by Judge Clark, was he not?
William Joslin: Yes, sir, Judge Heman Clark.
Felix Frankfurter: Judge Heman Clark. As I read paragraph 2 or finding 2, am I right in inferring that if Judge Clark had saw fit, he could have appointed counsel in the main trial?
William Joslin: Yes, sir. It's discretionary.
Felix Frankfurter: Now -- and if that is -- if he confirm that, is that by virtue of a statute or by virtue of a common law in North Carolina?
William Joslin: Your Honor, Mr. Justice Frankfurter, it's by virtue of the common law and the Court's --
Felix Frankfurter: (Voice Overlap) --
William Joslin: -- interpretation of the decisions of this Court. There is a --
Felix Frankfurter: Go on.
William Joslin: -- a statute which specifically requires appointment of counsel in all capital cases that statute --
Felix Frankfurter: That's automatic.
William Joslin: That's automatic. Yes, sir. The --
Felix Frankfurter: Are the statute silent about the other cases and the Court merely draws on all decisions in -- in, what we call it, power and so on?
William Joslin: Yes, sir. The statute is silent as to noncapital cases. The statute is set out in the brief of the petitioner on page 3 -- no, I beg your pardon. It's not set out there. The statute though is limited to capital cases. And in North Carolina Supreme Court has, of course, held that discretionary and noncapital cases depending upon special circumstances and an assurance that the defendant had a fair trial.
Speaker: In other words, the North Carolina law follows generally Betts against Brady. Is that you want mean?
William Joslin: Yes, sir, North Carolina Supreme Court --
Speaker: In noncapital cases.
William Joslin: Noncapital cases has adhered to that rule.
Speaker: Are you asking us to overrule Betts against Brady?
William Joslin: Well, may it please the Court. We are asking that -- to the extent that the decision since Betts and Brady have undermined it or modified it that the Court adhered to decisions since then, specifically Wade against Mayo seem to be more nearly in point on this case than Betts against Brady. Now, in this case, if I may recite briefly some of the facts which are of record, the defendant is an 18-year old youth. He had a sixth grade education.
Earl Warren: What did you say, an 18 year-old?
William Joslin: 18-year old youth.
Earl Warren: Youth.
Hugo L. Black: (Voice Overlap)
William Joslin: White units.
Earl Warren: Oh, yes. I thought you said mute.
William Joslin: White mark. He had a sixth grade education. He had previously been in court, didn't have a record, which Judge Hall mentions in his findings. He was arrested under a warrant which charged him with larceny from the person. There was a preliminary hearing held and it was bound over to the Superior Court, which is a court of general jurisdiction. The -- in North Carolina, we do not have a procedure for arraignment separate from trial. Arraignment in trial normally occur at the same day in court. He was then brought in to court for trial under an indictment, which had been returned in the meantime charging him with common law robbery. He made his request to the Court for the appointment of counsel, which was denied, and he went immediately to trial, entered his plea of not guilty, and there was thus no time interval which elapsed between them at the arraignment and the trial, no opportunity for him to take action for his defense once he had learned the Court was not going to appoint counsel for him. In other words, there were no witnesses subpoenaed for him and no other steps taken for pretrial, motions or tactics. The principal witness for the State in this case was one Debbie G.Spell. Now, Spell, as the record will bare out, had a previous criminal record. And that likewise been for 18 months in the State's mental institution known as Dix Hill. Now, these were matters that were brought out by the attorney for David Cain who was another defendant.
Earl Warren: How long before --
William Joslin: The --
Earl Warren: -- how long before the trial was this man released from the mental hospital?
William Joslin: It doesn't appear. It's just the simple statement in the record that he had been in Dix Hill for a period of 18 months. That was not exploited and not reason for his confinement in the mental institution. It is not brought out at the time.
Earl Warren: Did it show whether he was released as cured or --
William Joslin: No, sir. It --
Earl Warren: -- or what?
William Joslin: It does not show whether it was a release on probation or cured or just how.
Hugo L. Black: How did it happen to get in the record?
William Joslin: The defendant, David Cain, had a lawyer who cross-examined Debbie G.Spell and he bought out his prior convictions and also this Dix Hill confinement. The defendant Hudson participated to some extent in the trial. He asked spell some questions, but as many defendants do who are unrepresented, he began to make a speech to get his version of the incident before the jury, instead of asking questions and the Court cut him off, warned him once and then cut him off so that he did not cross-examine Spell extensively. He did have an opportunity, but it was not what you would call an extensive or searching cross-examination by defendant Hudson.
Charles E. Whittaker: Did the Court tell -- tell him that he would not be included -- permit to ask more questions?
William Joslin: No, sir. The Court told him, “You will not make a speech.”
Charles E. Whittaker: The Court did tell him he might go to -- he didn't ask questions?
William Joslin: Yes, sir. The other two witnesses in -- for the State in this case were two deputy sheriffs. And the petitioner in this case did not cross-examine either of them. They were cross-examined by the attorney for David Cain. At the conclusion of the State's evidence, the lawyer for David Cain submitted a plea to the Court for larceny and such an amount as to constitute a misdemeanor and the Court thereupon dismissed the case as to him or judged him guilty and the other two defendants, petitioner Hudson and Stalling were notified their opportunity to argue to the jury. Apparently, they did no take this opportunity. And the record doesn't show whether the State argued the case to the jury or not. The Court charged the jury then and the jury brought in verdicts of -- guilty of larceny from the person as to defendant Stalling and as to petitioner in this case.
Potter Stewart: Mr. Joslin, do you claim any error in the Court's instructions to the jury that could have been objected to and corrected if the petitioner had been presented by a lawyer?
William Joslin: No, sir,
Potter Stewart: You think the instructions were correct?
William Joslin: I think the instructions were correct.
Earl Warren: Was there any instruction on the effect of the plea of this man before the -- before the jury?
William Joslin: No, sir. There was no instruction as to -- to that matter. Under our practice, a -- an attorney for a defendant can submit instructions to the Court and request the Court to make those instructions and he can take an exception from the failure to make those instructions. Of course, there was no such exception in the record in this case. Now, I don't say that an attorney for the defendant could not have submitted additional instructions, could have -- which would have gone beyond those made by the Court, but none was made and there was no -- no instructions submitted or given by the Court in regard to the guilty plea submitted by David Cain, all of which period in the presence of jury. The sentence --
Earl Warren: Was he then sentenced or was he sentenced later?
William Joslin: The sentence was imposed the next day. Apparently, that occurred about the close of the Court and sentence was imposed the next day.
Earl Warren: Before the trial ended or afterwards?
William Joslin: It doesn't appear, except as -- except that it shows that it was on the following day. I mean, there was not -- apparently no intervening matter before the Court. And following the sentences, the petitioner filed a notice of appeal with the Court. I already failed to prosecute this appeal properly. Our procedure requires that the defendant prepare a case on appeal, which is a summary of the testimony and bill of exceptions and so on, rather technical. Those requirements were not met. The appeal was subsequently dismissed and a petition for habeas corpus was filed. It was likewise was dismissed. And finally, a second so-called petition for habeas corpus was filed with the trial court. The Court elected to consider this as a proceeding under the Post-Conviction Act and not as a strict habeas corpus petition.
Charles E. Whittaker: Apparently that was another judge (Inaudible)
William Joslin: Yes, sir. We have a rotation system of judges in North Carolina. And as of July 1st, another judge would have been holding court in that county. And Judge Heman Clark was the trial judge. Judge Hall, C.W.Hall was holding the courts thereby of the time that the second petition was filed. And Judge Hall, as I have noted, had counsel appointed for petitioner at this hearing and went into a consideration of the matter on the merits. Now, the constitutional question did not attempt to evade it or state that the petitioner had failed to prosecute his appeal or had mistaken his remedy, but he found -- found facts into the judgment which denied it and found that the petitioner had not been deprived of due process of law or did not have any substantial constitutional right through the failure to appoint counsel at the trial. I might say too that this record -- that the finding of Judge Hall in regard to the representation by David Cain's attorney is interesting. This -- this lawyer, at the trial, offered to represent all three defendants. He said, “I will take on the other two, Judge, as long as the interest don't conflict.” And the judge did not make any response at the time, but several pages over in the record, the Court found that the interest of the defendants were beginning to conflict, and he said, “You'd better just represent -- just cross-examine on behalf of your -- your own client, David Cain, and not try to represent the others.” And Judge Hall in finding 3 stated that N.H. McGeachy Jr., attorney for David Cain told the Court that he would help all three defendants as long as there was no conflict of interest. But the Court thought there might be some conflict of interest and Mr. McGeachy represented only the defendant David Cain at said trial. So the petitioner was without counsel. I think a fair reading of the record and the findings will -- will show.
Potter Stewart: The fact is that Mr. McGeachy did cross-examine the prosecuting witness, Mr. “Hell” whatever his name was, at great length.
William Joslin: Debbie G.Spell.
Potter Stewart: -- is it?
William Joslin: Yes, sir.
Potter Stewart: Mr. Spell. And the general thrust of that cross-examination was to try to show the jury that Mr. Spell had been drugged and that, of course, if he had succeeded, would have or down to the benefit of all the defendants, wouldn't it?
William Joslin: Yes, sir. It would have. There was also some question of who had taken the leading role in this so -- this alleged robbery incident. And Spell's testimony, for instance, and the testimony of the deputy sheriffs does not line up. There is a conflict there in regard to the leading role played in the robbery and that was a matter that might have been exploited, done by separate counsel for each defendant.
Potter Stewart: Mr. Spell's story generally was that the leading role had been played by the petitioner, is that right?
William Joslin: By petitioner Hudson.
Potter Stewart: And that his -- and that Cain had the -- had the least prominent role, is that fair to say?
William Joslin: That the -- the Cain is the man who owned the car in the case and he had the least to do with it, I would say. The -- the deputy sherifs, two of them stated that Stalling, Ray Stalling had made statements to them which indicated that he had played the leading role in -- in the alleged robbery. Now, this Court has followed since Betts and Brady, a rule that in noncapital cases for a defendant, the case of Wade against Mayo, which was decided in 1947, is in the tradition or in the line of cases of -- that started with Betts against Brady. In the Wade against Mayo case, the facts were almost identical with those in this case. In that case, the petitioner was an 18-year old defendant. He had a prior record. He was indicted with -- on a noncapital charge that are breaking and entering. He made a pretrial request for the appointment of counsel, stating that he didn't have the funds to employ a counsel of his own. The Court denied that request. At the trial, he was advised of his right to cross-examine the witnesses against him and he did avail himself to some extent of that right. There were -- but he did not summon any witnesses of his own. He took the stand as did the defendant -- the petitioner in this case and testified. He did not make any argument to the jury. In that case, the petitioner filed a petition for habeas corpus, and the District Court of Florida found the facts. And the Court in that case made a specific finding that the petitioner was unable to represent himself in Court. There's nothing to show how much formal education he had had, but the Court was satisfied on the basis of the evidence before it that this petitioner was unable to defend himself adequately in Wade against Mayo and that he should have been granted his request for a counsel. Now, the facts in this case bring it almost squarely within the Wade against Mayo doctrine, as I see it. If anything, there is even more room for prejudice or for the need, petitioner to have counsel. There were -- was a defendant in this case who had counsel and he had none. And there was a plea submitted, which the jury observed, saw. And this petitioner could not have helped but have been prejudiced by that fact. The --
Felix Frankfurter: Don't you think it's -- do you think it's too fanciful to argue that a jury might be -- have a more merciful attitude to a fellow who hasn't got a lawyer than a fellow who has? Lawyers aren't the most popular profession (Inaudible) other.
William Joslin: Well, that's very true. They're not the most popular profession in the world, but I think that -- that counsel could have been considerably benefited here in -- in --
Felix Frankfurter: I -- I agree with that. I mean, I might agree with you on that. I address myself to your remark that the jury saw that one put out a lawyer and the other put -- it didn't as if their natural impulses would be to favor the fellow who didn't have a lawyer.
Charles E. Whittaker: Mr. Joslin --
William Joslin: Yes, sir.
Earl Warren: -- who -- who fixes the sentence, the jury or the judge in your State?
William Joslin: The trial judge has control of the sentence.
Charles E. Whittaker: And not the jury.
William Joslin: No, sir. It's only in a -- in a capital case that the jury can make a recommendation regarding sentence. The -- the trial court had the discretion to impose the sentence up to a maximum of 10 years. We think that Wade against Mayo, following the line of cases started at Betts against Brady, is determinative and should be controlling on this -- on the Court in this case. Now, since the decision in Betts against Brady, this Court has had occasion in Griffin against Illinois and a subsequent line of cases to hold that the Fourteenth Amendment to the United States Constitution requires that an indigent defendant be granted a right to appeal comparable to the right and appeal which a defendant means would have. In the Griffin case, the defendant there was denied an appellate review because he didn't get up his bill of exceptions properly and he could have gotten that bill of exceptions together only if he had a copy of the trial transcript. That would have meant he would had -- had means enough to pay for the transcript. And as was clearly shown in that case, he didn't have the means, could not affect his appeal. Now, the Court -- and this Court has held that due process of law does not require that a State provide an appeal from a conviction or other court proceeding. But if the State thus provide an appellate procedure, it must make that appellate procedure open and available to the indigent defendant as well as the one with means. An essential ingredient of any hearing, as this Court has held and noted in number of cases starting from Powell against Alabama on down, is there is representation by counsel. And here, we have a case where the defendant could not obtain counsel because of lack of means. It was an essential ingredient of the hearing that he have representation by counsel. Now, the State of North Carolina, by statute and by Constitution, guarantees to defendants of means the right to represent -- to representation by a counsel. But here, this same guarantee to defendant a means is cut ff and denied to this petitioner solely because of his lack of funds to employ his own counsel. The decision in Griffin against Illinois and the cases following it, the logic of those cases, I think, leads to the -- but one conclusion that a State cannot deny a defendant counsel solely on the ground of his lack of means to employ counsel where under similar circumstances another defendant with means can employ counsel. Now, certainly you -- a State cannot begin to weigh the merits of one counsel against another and say that the defendant is entitled to a counsel just as good as the -- just as competent as the prosecution. But --
Felix Frankfurter: Why not? Many cases have been lost because of the unfair advocacy of the lawyer.
William Joslin: Certainly --
Felix Frankfurter: Certainly before jury.
William Joslin: Certainly, they have.
Felix Frankfurter: Certainly before jury, a very good induction with such feelings that you can't possibly take this and you can't, a fellow is acquitted, you can't complain that he should have been convicted.
William Joslin: Well --
Felix Frankfurter: All I'm guessing it's more complicated than -- in saying that it's an issue -- if anybody is allowed to appeal and everybody is allowed to appeal because you can't appeal, you can't appeal, it doesn't follow that -- that if you haven't got a lawyer, you might as well be taken care of.
William Joslin: Well --
Felix Frankfurter: And once after deciding this case, the fellow can be allowed to defend himself if he wanted to on the theory to defend himself (Inaudible) of defendants.
William Joslin: Well, certainly, if he -- if the defendant wants to reject the appointment of counsel, he would have every right to so. But we think here where he has requested the appointment, he --
Felix Frankfurter: I follow you. All I'm --
William Joslin: -- feels himself that he is inadequate.
Felix Frankfurter: I -- I merely suggest Griffin is an equation to - to transfer around.
William Joslin: Well, the language in Griffin, I believe, is -- is persuasive and I might mention that the concurring opinion in the Griffin case, I think, would offer a good solution to this problem. As admittedly, it is a serious one for this Court.
Speaker: Am I right in thinking that you have two passage to your due process argument, namely, that this is a Wade and Mayo situation, a special circumstance situation, number two, that we ought to overrule Betts against Brady and hold that in every felony case, there is an automatic right to appointment of counsel as a matter of due process?
William Joslin: Yes, sir. We --
Speaker: And then thirdly, you've got your equal protection argument that you've just made. Is that -- is that the scope of your -- thrust of your argument?
William Joslin: Yes, sir. That is the thrust. Anyone of those three grounds, we think, would be adequate in -- in this case. Wade against Mayo or the Due Process Clause is growing and vital, a clause of the Constitution which permits some change and does incorporate the sense of justice of the American Nation as I think we have shown in our brief it to be. And finally, the Griffin against Illinois are a combination of equal protection and due process.
Felix Frankfurter: What is a felony under your law?
William Joslin: A felony is any crime which is punishable by imprisonment in the State's prison for -- for term up to two years.
Felix Frankfurter: Up to two years.
William Joslin: Or two years or more.
Felix Frankfurter: Two years or more.
William Joslin: Two years or more.
Felix Frankfurter: Yes.
William Joslin: Imprisonment in the State's prison.
Felix Frankfurter: You begin in few years.
William Joslin: Yes, sir. If the sentence is less than two years, they're commonly served on the roads, not in the State's --
Felix Frankfurter: Is that all?
William Joslin: -- penitentiary.
Felix Frankfurter: All you have to -- all you have to be with here is a felony case but I shouldn't think that's a very satisfactory line of yours in getting two years and getting one year, decides -- states very enormously, what -- how did they find felony, don't they?
William Joslin: Yes, sir, they do.
Earl Warren: Mr. Joslin, how many States, if you know, require the appointment of counsel?
William Joslin: I do not know -- I don't have an exact compilation. I think I've cited an authority that sets out the -- the breakdown of the States. And of course, in Betts against Brady, there is a breakdown of the States. But there have been some changes since the Betts against Brady decision. I have a recollection that it's about 42 that would require appointment of counsel in any felony case or any case involving a “serious crime”, but I do not have the exact figures on that. I'm sorry.
Earl Warren: Your recollection is about 42 though.
William Joslin: About 42, yes. Thank you, sir.
Earl Warren: Mr. Moody.
Ralph Moody: Mr. Chief Justice, may it please the Court. I -- of course, I prepared this case upon the assumption of Betts against Brady. It was still the law and I've operated on that plan in trying to consider -- the argument in this case. I think, really, when we get down to it is -- in a case like this, it's an evaluation of the record and of the proceedings in the case as to whether fundamental unfairness was committed against some defendant who was being tried in the state courts of North Carolina. In other words, to use the argot phrase, did he get a raw deal in the trial. Was it unfair?
Earl Warren: You mean the specific misconduct on the part of the Court or the prosecuting officials or -- or --
Ralph Moody: The totality of it. Thus, the totality of the circumstances in the trial lead us to a feeling or a conclusion of this man didn't get a fair trial, that he was fundamentally wrong. It could consist, of course, I think, Mr. Chief Justice, or perhaps one act. But since we're all in the point now about the plea, one of the -- the counsel David Cain entered pleas. That's -- that is common practice in North Carolina, but -- but for a group of men who are indicted and represented by the deputy counsel. One in open court enters the plea if he wants to do so. And in our jurisdiction, that has been held not to be a ground of prejudice. I didn't know that point was going to be raised. And I don't think he raised it either, but I am prepared to show that by the authorities in my State. Now, I've been looking to see where this man is -- got along so -- was treated so badly in this trial.
Speaker: Could I ask you a question? What is the general practice in North Carolina where an indigent makes a request for counsel? Is this an unusual thing, what happened here or these judges -- are the judges pretty circumspect about hammering those requests? How does (Voice Overlap)
Ralph Moody: Well, I've been waiting that for a long time. My -- my own -- for my own practice -- my own experience is that the judges are very -- appoint counsel in felonies a good many times.
Speaker: Almost a matter of course. I would -- well, I -- I'm --
Ralph Moody: No.
Speaker: -- talking without knowing anything about it.
Ralph Moody: No, it's not -- I haven't seen it. That -- that -- I -- I would like to leave a statement that I have seen them do so a good many times that he, as Mr. Counsel has stated to you, there is no statute on that. Of course, there is. It's mandatory in the capital offenses, but there is no statute on that other than the holdings of -- of this Court and as construed by our court in (Inaudible) cases which came up here on the same (Voice Overlap) --
Felix Frankfurter: When -- when did your capital case started? Where is -- when did it get in to your statute as a capital offense? Do you happen to know?
Ralph Moody: No, sir. I'm sorry, I can't answer that right now, but it's -- it's been there a long time, several decades, I'm sure.
William J. Brennan, Jr.: Mr. Moody, I wasn't quite clear from what Mr. Joslin said in your post-conviction statute is the appointment of counsel where a charge of violation of constitutional right in conviction of his claim, is that mandatory?
Ralph Moody: As I recall, the statute -- the Court -- if the Court finds that he doesn't have the means to employ counsel, then it is mandatory for him to appoint counsel.
William J. Brennan, Jr.: And what's the test? The filing of an affidavit have been (Inaudible)
Ralph Moody: That's usually about what is done. I mean, I don't think the Court makes any extensive --
William J. Brennan, Jr.: Yes.
Ralph Moody: -- investigation about such thing. I think that's about what is done. Usually, it alleges that as apparent right to the institution that he swears too, that he has got two -- one year means enough to do that.
Felix Frankfurter: What -- what is the practice in your courts, Mr. Moody? The Court can appoint somebody who's in the courtroom? Is there roster of lawyers? Or is there a legal aid society or whatever it's called in North Carolina?
Ralph Moody: No, sir. I don't think we have any roster or legal aid. The Court sees -- knows an attorney. The judge knows the members of his bar and the counties he goes to and he --
Felix Frankfurter: Most of them are agricultural counties.
Ralph Moody: How is that?
Felix Frankfurter: Most of your --
Ralph Moody: Most of our counties are agricultural counties. That's true.
Felix Frankfurter: They know the bar.
Ralph Moody: They know the bar. And of course, that statute, post-conviction statute, that statute we adopted, that was adopted apparently it have to do with Illinois statute. And I think that's where Illinois originally -- and that's why we apply it now. But in any rate, if a man is going to allege that his constitutional rights have been violated, it's going to get him the constitutional law. Anyway, there might have been thought that he may [Laughs] need counsel for that.
Earl Warren: The State compensates these lawyers, Mr. Moody?
Ralph Moody: I beg your pardon, sir.
Earl Warren: The State compensates these appointed lawyers (Voice Overlap) --
Ralph Moody: The counties -- the counties pay it.
Earl Warren: I see.
Ralph Moody: It's a -- it's a bill against the county treasurer.
Earl Warren: Yes.
Potter Stewart: In those cases where the trial judge does appoint a lawyer for an indigent defendant, does the county compensate that lawyer to?
Ralph Moody: There is no authority, but I know of no legal authority to -- for the county to pay funds or state -- state our counsel on this particular point.
Potter Stewart: In a noncapital case. How about a capital case?
Ralph Moody: There is provision to the same effect, a provision for the permanence on appeals and everything that's back. There is provision for the same effect. But there is -- we have no statute in the non -- in the noncapital case. We have no statute --
Potter Stewart: So this --
Ralph Moody: (Voice Overlap) and it's just simply the officer is a lawyer. He's -- he's an officer of the Court and the judge tend to tell him to -- on a taken offense, he just not (Inaudible)
Speaker: Do you have an active legal aid society down there?
Ralph Moody: We have one. I think in connection Duke University but I believe it's for some reason or other. Professor Bradley left or quit or -- or stopped and it's -- I don't think it's operating. The one -- the only one I know of that is through some bars, worked out representation for indigent people, officers in the bar in Raleigh. It works out a system. He can tell you more about that than I can. But that extends also to propter cases, civil cases and actions for debts and things like that. Now, some of the bars have worked out some -- some voluntary system of their own. First, Mr. Joslin relies very heavily on Betts or Wade -- Wade's case, Wade against Mayo. Well, now, there are similarities and analogies in Wade's case, in this case. But, I -- I'd like to emphasize this to the Court. This Court rested its -- largely conclusions on Wade's case on the findings made by the District Judge. And you said you were -- he was there. He could observe the -- the man and he could see whether he was capable of taking care of his self or not and he went by that unless -- so that's why the -- the whole Wade is predicated on. Actually, I don't know how it came out. This was only allegations of -- of habeas corpus. Now, you -- you go through this case, and I don't believe you can find where this man and -- and my -- Mr. Joslin, my friend has been very reliant on pointing out to you where this man has been badly treated in this record. Now, it should be pointed out that Mr. McGave (ph) the attorney who started out, said he would represent all three and that is the time when he was still going for all three of them when he gave that search and cross-examination to the prosecuting witness. It was commented on here a moment ago. He did reach a place where there was possibly -- he thought there was going to be some conflict and he did detach himself.
Earl Warren: Was the petitioner given any time to repair his defense after -- after he was denied counsel?
Ralph Moody: Well, I -- frankly, I don't -- I don't know. My -- my understanding is he -- he was -- for instance, we go back, he was first arrested on a warrant. Now, he has had time all the way through that up to the time of his trial in the Superior Court, he was bound over, as we say, to the Superior Court.
Earl Warren: When was he arraigned --
Ralph Moody: Oh, he had --
Earl Warren: -- with relation to the trial.
Ralph Moody: He was arraigned at the same time he was tried. That's where all arraignments are in -- in our State. We don't have any separate time for that.
Earl Warren: Did he have any opportunity prior to that time to ask for a lawyer?
Ralph Moody: Well, I'm not -- I don't think he had any opportunity prior to that time. Frankly, I can't answer that if they had any. I don't know anything.
Felix Frankfurter: When was he arrested? What are the dates, Mr. Moody?
Ralph Moody: I don't -- let's see if I can point that out to Your Honor. Let's see. The -- the order of arrest is on 18th of February. The warrant -- the return on the warrant on page 1 of the record shows it was served 02-18-1958.
Felix Frankfurter: When was the trial?
Ralph Moody: What's that?
Felix Frankfurter: And when was the trial?
Ralph Moody: Well, now, he had a hearing in the Recorder's Court of Cumberland County. He had a preliminary examination there, as I understand.
Felix Frankfurter: Is there no arraignment before there is -- just explain your practice (Voice Overlap) --
Ralph Moody: Well --
Felix Frankfurter: -- the man is arrested?
Ralph Moody: He is arrested and --
Felix Frankfurter: Presumably on a charge.
Ralph Moody: On a felony.
Felix Frankfurter: On a -- on a charge, isn't it?
Ralph Moody: Yes, sir, in any charge.
Felix Frankfurter: Then he's brought before some tribunal, you said Cumberland County and there -- that -- isn't that an arraignment?
Ralph Moody: Well, that's -- that's -- he is brought there to see if there is enough evidence to hold him for trial in a court of general jurisdiction.
Felix Frankfurter: Well, I should think there's an implied charge if -- on the face of things we charge him with this (Voice Overlap) --
Ralph Moody: He's arrested --
Felix Frankfurter: -- saying.
Ralph Moody: -- with a warrant but --
Felix Frankfurter: Well, evidently you have technical meaning for what arraignment is.
Ralph Moody: Well, as we understand it, when they're called for trial in the court, either of general jurisdiction and asked to plea and that is -- to us, that is the arraignment.
Felix Frankfurter: Well, in the Cumberland court -- I mean, he is brought in by police officers, is he?
Ralph Moody: Yes, sir.
Felix Frankfurter: And what -- what does the judge say to him? Who says -- do you collect there something too?
Ralph Moody: He is brought in before --
Felix Frankfurter: Is they charged also with some (Voice Overlap) --
Ralph Moody: There is a charge in the warrant. Yes, sir. There is a charge. He's charged in the warrant.
Felix Frankfurter: And then he asked whether he pleads to that.
Ralph Moody: And no -- whether -- he ask him whether he pleads to it or not. It's usually the State has him. And they -- they're going to put on enough evidence if they can to have him bound over. I don't think they consult him very much about it.
Potter Stewart: Just a preliminary hearing?
Ralph Moody: Just a preliminary hearing.
Potter Stewart: Not -- not technically an arraignment?
Ralph Moody: That's right.
Hugo L. Black: Mr. Moody, we held in several cases in the federal court that -- and one of them was Johnson against the United States that where a defendant attempts to take an appeal in forma and the District Court certifies that he is not entitled to take his appeal, that under the doctrine of Johnson against Zerbst, the Court was required to appoint an attorney for him. Do you think that would have any relevance here in considering the question on either one of the argument?
Ralph Moody: No, Your Honor is saying that the attorney is required to be appointed to prefect the appeal?
Hugo L. Black: To --
Ralph Moody: Carry out the appeal?
Hugo L. Black: To see whether or not with the -- he challenge -- he wants to challenge the certificate. The Court -- the District Court certifies that he does not have any meritorious ground of appeal. And he testifies. He has filed an affidavit. He has no money to get a counsel. And we held that when that one challenges that certification, certification, the aid of counsel unless he insist on being his own must be given him under Johnson versus Zerbst.
Ralph Moody: Well, I mean -- I'm -- I'm --
Hugo L. Black: That was 352 U.S.565 and 566. And we've followed that in several instances with reference to the federal court.
Ralph Moody: Yes, sir, I know it had been here. And I want to, of course, predicate it in my arguments at all on the -- in the rule under the -- the federal amendment in the federal court at all, but then don't you have control over federal courts --
Hugo L. Black: Well, that -- that argument can be made. Of course, the -- the opinion relied on and the case relied on to do that was Johnson against Zerbst, which, as I recall it, was put on constitutional grounds.
Ralph Moody: Well, was -- may I ask please? Was that the --
Hugo L. Black: Yes.
Ralph Moody: -- counsel to carry out appeal?
Hugo L. Black: Counsel was to -- we held that he must be given the counsel, appoint a counsel when he challenged the certification of the judge.
Ralph Moody: But that was after a trial, wasn't it, had been made?
Hugo L. Black: That's after trial.
Ralph Moody: Yes.
Hugo L. Black: That -- now, you -- you grant one here when there's a constitutional question raised in North Carolina.
Ralph Moody: Yes, we do. So we do and that's why he --
Hugo L. Black: Your argument there, I assume, is that if North Carolina wants to draw that distinction between, the right to counsel after conviction may -- he seeks to set it aside and yet denied where he's being tried to have a right to do so.
Ralph Moody: Well, I -- it would seem that that is the situation. I mean, the -- there -- I mean, we -- if you are referring to counsel being appointed in the post-conviction hearing at -- after the trial, as I get it, you seemed -- you think -- if I'm correct, you think that we -- it's rather anomalous that we would file --
Hugo L. Black: Well, I was just -- I was just wondering if -- if, as a practical lawyer and with practical experience, you would say that it's a normal thing to say that a man needs a lawyer worst when he has challenged his conviction after he's been tried and he does when he's being tried.
Ralph Moody: No, I don't think --[Laughter]
Hugo L. Black: You'd have a hard time defending that distinction when I --
Ralph Moody: I wouldn't know. I wouldn't undertake the (Voice Overlap) --
Hugo L. Black: Whatever effect it might have on the constitutionality.
Ralph Moody: But whatever it may be. But as -- if -- as to the -- this case here, I can't find incompetent evidence admitted against him. I can't find, and Mr. Joslin says that he has no quarrel with the instructions that the Court gave to the jury. And in fact, after Mr. McGave (ph) said that he thought there was a conflict and that they'd better go -- he'd better detach, you can find where he has some cross -- some various searching questions on cross-examination. And you can also look in his record and find where he made some objections that were sustained by the Court. And he had been tried about a week or 10 days before. That's in Mr. Judge Hall's finding. When he got down to him, he had -- he -- he was a pretty good lawyer as a matter of fact. He had been tried for assault and robbery, two cases tried at the February 1958 term of the Superior Court, I'm reading now from Record 63. And the petitioner was not represented by counsel in those cases. The petitioner conducted his own defense and was acquitted of said assault and robbery charge. At that term, he was acquitted by the jury. And he then get along all right with the matter as far as that goes.
Potter Stewart: Mr. Moody, one thing that struck me in his petition, his post-conviction petition appearing on page 60 of the record, paragraph VI says that he was tried on two different cases that happened on the same night at the same time 10 miles apart. He was convicted on both of them, which -- which is illegally because a man cannot be in two different places at the same time. But that, I don't think, was -- that allegation wasn't considered or it wasn't treated in the Court's --
Ralph Moody: No, it was not --
Potter Stewart: -- statements.
Ralph Moody: -- Your Honor. And I don't know what he's driving.
Potter Stewart: You don't know what he's driving.
Ralph Moody: Most frankly that was never amplified and this --
Potter Stewart: No.(Voice Overlap) --
Ralph Moody: -- was brought out in this evidence and I don't know what his point is there.
Earl Warren: Mr. Moody, do you -- do you really think that any 18-year old boy with a six -- sixth grade education is capable of defending himself in the courtroom against an accusation that may send him to the penitentiary for the better part of his life?
Ralph Moody: It depends, Your Honor, on who the boy is.
Felix Frankfurter: And also depends who the trial judge is.
Ralph Moody: Yes. A great deal on who the trial judge is and how he conducts his trial, whether he sees that incompetent evidence is not admitted against him and whether he has correct instructions and treats him fairly. I do not wish to concede at all that some boys that's 18 years old and who've had a -- who hang around in courthouses in the southern town and who have some records like this can't defend themselves because I think some of them are very good and very astute.