Aubrey R. Bowles, Jr.: I was undertaking to explain our view of the basis of the Chancery Court decree. The answer in this proceeding admitted that the illegal practices complained of had continued in Virginia and elsewhere in the United States up to April 1, 1959, which we have referred to during this trial as the magic date. Now, --
Earl Warren: (Inaudible) is that being obtained?
Aubrey R. Bowles, Jr.: Yes sir, the president testified that Illinois Supreme Court had given them one year, three months and 11 days in which to get their house in order after declaring that practice is illegal. And that they were entitled to great commendation by virtue of the fact that they undertook to get in order three months ahead of the one year, three months and 11 days. That --
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: That was --
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: I don't know who originated that sir. It was not with the idea of a program.
Earl Warren: But you've said April (Inaudible)
Aubrey R. Bowles, Jr.: I did, yes sir, because -- and I'm going to argue to you why it was April Fools' Day in just a moment, because it was and has been for 30 years just exactly -- that's the whole complaint of the Virginia State Law over, over, over and over again. These exact protestations have been made and have not been followed. They have now been made and are not being followed, that is our position. Now, --
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: Yes sir, we think it does.
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: Yes sir, I will undertake to do that. Now, the proof shows that these exact same protestations, now made, were made in the past and were not lived up to. It has been shown in the record in the Dworkin case that that case was dismissed upon the statement that their whole plan had been revised and they would not do anymore of these illegal things. There is a -- the answer admits that notwithstanding that, these practices were continued until April 1, 1959.
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: The complaint was filed in Virginia in June of 1959 sir, June the 19th I think.
Earl Warren: June (Inaudible), you've said the record shows in Virginia and in April 1, 1959, (Inaudible) to continue.
Aubrey R. Bowles, Jr.: In Virginia?
Earl Warren: Yes.
Aubrey R. Bowles, Jr.: That is why I undertook to explain to you the basis of this decree. The answer said that --
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: What is that?
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: Yes, sir.
Speaker: Where is that in (Voice Overlap) --
Aubrey R. Bowles, Jr.: Mr. Savage contributed $6800 to the Legal Aid Department, just a moment sir I'll tell you the date.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: Yes sir. 1204 is the place in Volume IV, that's the financial records of the -- of the Legal Aid.
Speaker: 1204?
Aubrey R. Bowles, Jr.: 1204 and Mr. Savages' specific contribution is indicated. The test is tumbling if Your Honor please but I -- that's at Page 1245 of Volume IV. It will be shown that in August 19th, 1959, Mr. Savage paid to the Legal Aid Department $6800.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: That is the contention that was made but I think that is not accurate because the record will also show that the -- I have not had the opportunity to develop to you just the -- the way that these financial records were managed then I will undertake to do so now. This specific -- specific check was a check which was made out -- or directed to be made out by the president. It was sent to the Legal Aid Department, the stub of the check is at 1246 in the record. Mr. Savage had sent bills for personal services to the Brotherhood in amount of $6800 which is on page 1247. Now, that was then ordered to make out a check to Mr. Savage. It was sent to the Legal Aid Department. The Legal Aid Department then sent it back to the general fund to the credit of Mr. Savage. That's the way that transaction was done. Now, that $6800 was in part the reimbursement to the Brotherhood for the use of a man named Tingle who was then a regional investigator and who was assigned by the Legal Aid Department to Mr. Savage for his use. In other words, that Tingle was paid by the Brotherhood's Legal Aid Department but reimbursed by Legal Counsel. And those current operations went on as you had stated this morning until April, those are all mixed up in that $6800.
Speaker: When did the services performed?
Aubrey R. Bowles, Jr.: The services of Tingle were performed right down to April.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: April of 1960 sir. But the services of Mr. Savage as there's nothing -- beg pardon?
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: You are quite right sir. That -- that is correct. It was down to August of 1959, the current reimbursement of by the month. I -- I was skipping in my own mind to another similar situation of some $10,000 which happened over in 1960, the same result.
Earl Warren: (Inaudible) prior to April -- April 1, 1959?
Aubrey R. Bowles, Jr.: A contract for what sir, for the vast services of a lawyer or an investigator?
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: Part of it was reimbursement for the investigator for the investigator for the immediately prior month. Part of it was the services that Mr. Savage had rendered, I do not know.
Earl Warren: And prior to that, (Inaudible) as a result to which the $6700 which was paid to Mr. Savage, going back to 1937.
Aubrey R. Bowles, Jr.: Oh, back in 1937 sir.
Earl Warren: Yes, 1937 --
Aubrey R. Bowles, Jr.: 1937.
Earl Warren: -- notice that.
Aubrey R. Bowles, Jr.: That's when Mr. Savage signed his contract with the Brotherhood.
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: The date of the service is rendered by Mr. Savage, I do not know sir. The record does not disclose. It was just a bill for services rendered. The -- it doesn't specify.
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: What's that sir?
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: Yes sir, I intended to come to that and to ask you to examine that contract in detail because the main feature of that contract is the obligation to provide the advance advertisement that would result in an assurance or guarantee to this Regional Counsel of a sufficient volume of business to -- to permit them to do this business at a reduced rate that is set out in the contract.
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: Most of these is written down in our briefs sir so --
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: I'm not opt-in to explain that to you yet.
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: That is correct.
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: Well, --
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: Mr. Justice Harlan asked the question as to how many cases there were in Virginia. And the answer to that will answer your question simply because Mr. Kennedy, the president of the Brotherhood, testified that as soon as this suit was commenced and a suit shows that there was a long period of conversation between the Committee of the Bar and the Brotherhood before that. But as soon as these questions were raised, that he stopped all business in Virginia of every kind, and that there was no service rendered to any Virginia member of the Brotherhood during dependency of this contest between the Bar and the Brotherhood. Now sir, that being so, Mr. Savage -- Mr. Savage would not even come into Virginia so that he could be served, neither would -- did Mr. Tingle. And they claim that there was no business done, awaiting, as Mr. Kennedy said, the pleasure of the Supreme Court of Virginia or the Chancery Court to tell him in Virginia what he could do. Now, as I started to explain, the basis of this decree is predicated upon the fact that they say prior to April 1, 1959, they did not do this either in Virginia or anywhere else. And the proof here shows that we could not find a case in Virginia where this was done. But we found some seven or eight others in other places where they had done this exact same things which they had it in some dozens of instances before, claim they would not do it and then go on right back to it as soon as the heat was off. But under that basis, this chancellor had the present apprehension which we have a statute to that effect that gave him jurisdiction to apprehend that the thing would be resumed in Virginia as it had admittedly been done prior to April 1, 1954.
Earl Warren: (Inaudible) 1959, is that right?
Aubrey R. Bowles, Jr.: 1959, yes sir.
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: That is -- that I think is the fact according to this record, that's a fact.
Hugo L. Black: Well, they admit that -- that would be illegal so really there's no argument about that, isn't it?
Aubrey R. Bowles, Jr.: I don't think so Mr. --
Hugo L. Black: I suppose they wouldn't object to that, they've been continuing in the decree.
Aubrey R. Bowles, Jr.: I -- I didn't hear that sir.
Hugo L. Black: I don't suppose that the -- they would object to continuing in a decree in injunction against -- spending fees.
Aubrey R. Bowles, Jr.: They do not seem to be disturbed by that.
Hugo L. Black: In fact to me, you're following this risk benefit of recommending a lawyer (Voice Overlap) --
Aubrey R. Bowles, Jr.: That is the class that where the -- the thing in modern (Inaudible) situation.
Hugo L. Black: I think it's down to that single point from what he admitted to be.
Aubrey R. Bowles, Jr.: I think so and I will undertake them to address my further remarks on just that question. Now, before doing so though, I would like to call to your attention the fact that the position of the Bar before the chancellor was that to proof here shows that they were still doing these things and that there was a reasonable apprehension that they might recommence them in Virginia because we showed without any dispute whatever that notwithstanding the sworn answer in compliance with calls and affidavit to their effect that no Legal Counsel that paid any money to anybody else into this Legal Aid Department for any reason after the April 1, 1959. And we -- the proof shows that it was paid up until April 18, 1960. Now, we've been over the reasons for this sir.
Hugo L. Black: Other states.
Aubrey R. Bowles, Jr.: In other -- in any state.
Hugo L. Black: Well, was it in Virginia?
Aubrey R. Bowles, Jr.: Yes, Mr. Savage paid some money, $6800 on August the 19th of 1959.
Earl Warren: In Virginia?
Aubrey R. Bowles, Jr.: In Virginia, yes sir. Well, I said in Virginia Your Honor, he's a Baltimore lawyer. He is not licensed to practice law in Virginia and the Brotherhood recommends him as their only lawyer anywhere in this region that is competent to handle these cases. So we have no lawyer in Virginia, ever have had a lawyer in Virginia.
Speaker: In Virginia cases?
Aubrey R. Bowles, Jr.: Sir?
Speaker: The Virginia cases?
Aubrey R. Bowles, Jr.: Oh yes sir, Virginia cases.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: That I -- I do not know that sir. They were for personal services rendered to the Brotherhood apparently for other reasons than the FELA case. Now, the respondent first contends if Your Honors please, that there really is no questions for this Court to determine because an examination of this decree shows very clearly in our view that the thing that they say they want the right to do, namely, to tell their members that they ought to get counsel before they settle a case and to recommend the name of a competent lawyer. Nobody can possibly complain of that. All of us lawyers get a -- a practice by a virtue of reputation. And to John Jones may say that so and so is a good lawyer. And when the thing stops there, there can be no complaint by the Bar or by anyone else. Now, if that is so as to what they contend that that is the purpose and -- of -- of their intention, by this plan then there is not one single thing in this decree of the Chancery Court of the City of Richmond that prohibits that. And the finding of fact you will notice says, as to some of these facts that they find that they have done them in the past and still continue to do them as to other facts, however, the finding as only that they have done them in the past.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: What is that sir?
Speaker: What possibilities to see (Inaudible)
Aubrey R. Bowles, Jr.: Are you looking at this blue one?
Earl Warren: Yes.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: Yes sir.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: From holding out lawyers selected by -- there's the only approved lawyers to aid the members of their families.
Speaker: Yes. (Inaudible)
Aubrey R. Bowles, Jr.: I don't think so sir.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: I don't -- that is not my understanding of those words.
William J. Brennan, Jr.: What does that mean?
Aubrey R. Bowles, Jr.: It -- it means that where all of the other things behind it that I shall presently relate to you, that this is the only lawyer that you can or should go to.
Byron R. White: What exactly what we're talking about here? You -- the -- the decree does enjoin the Brotherhood from recommending only one lawyer.
Aubrey R. Bowles, Jr.: Yes, and -- and -- but along with all the rest of these things on the basis of solicitation so that it results as these gentlemen have just admitted that the one lawyer gets one-third --
Byron R. White: Yes.
Aubrey R. Bowles, Jr.: -- of all the legal business that there is.
Byron R. White: Yes. So but the -- the decree does enjoin the Brotherhood from recommending, say there's a 100 cases and it recommends only one lawyer in each case. Now, that the --
Aubrey R. Bowles, Jr.: Oh yes.
Byron R. White: -- decree does present ---
Aubrey R. Bowles, Jr.: Yes. Yes, sir
Byron R. White: -- precisely that.
Aubrey R. Bowles, Jr.: The -- the word only undertakes to take care of that that there is no other lawyer in Virginia, Maryland, District of Columbia, West Virginia, in their opinion of the Brotherhood that is competent to handle an FELA case.
Byron R. White: Well, the Brotherhood doesn't necessarily have to infer that when it recommends only one lawyer, just as we prefer this lawyer and we recommended seriously that you go to this lawyer.
Aubrey R. Bowles, Jr.: Well, the prohibition is from holding out lawyers selected by it as the only approved lawyers to aid the members of their family.
Byron R. White: Right, approves -- approved lawyers.
Aubrey R. Bowles, Jr.: Yes, that's correct and that ties right back in to the findings of the Court which I'm going to review to you in a moment as to what this contract that that lawyer makes with the union.
Byron R. White: Well, would you say that the -- would you say that the brotherhood is or is not entitled to send -- its representatives call on an injured person? Would you say that he is -- he may or may not say, "We recommended it to hire lawyer, and the injured person as, "Whom should I go to?" And the Brotherhood answers one name. One name, now this is what happens all the time.
Aubrey R. Bowles, Jr.: Mr. Justice White, I don't undertake now to speak in advance the unauthorized practice Committee of the Virginia State Bar, but I express to you my view that without all of the prior things that go on in this plan, I don't think you can pick out one thing in this plan without looking at the plan as a hope. That without all of that, that the man goes and says, just as somebody might -- shall I say I hope, say above me someday. I recommend Russell Bowles. He's a very good lawyer. Now, if that's where the thing starts and where it ends, I don't think anybody can complain of it.
Potter Stewart: But if it were the same -- if there were --
Speaker: (Inaudible)
Potter Stewart: -- the same man --
Aubrey R. Bowles, Jr.: There is a --
Potter Stewart: -- (Voice Overlap) state area over a period of 15 years.
Aubrey R. Bowles, Jr.: That is exactly the point sir.
Potter Stewart: And if there were only 16 people in the whole nation, who were recommended at all?
Aubrey R. Bowles, Jr.: The whole secret of it, if you will turn and I'll jump over four pages of my argument, turn to Page 20 of the reply brief. And now, you have the crux of the whole thing. On Page 20 of the reply brief, that's this gray. They say the only three things that worry them about this decree are, from holding out lawyers selected by, there's the only approved lawyers or in any manner, soliciting or encouraging such legal employment, that's one of the thing that they don't like. They want to solicit they say and they have a right to, they claimed, or any commendation of things. There results in exactly, Justice Stewart, what you said a moment ago when the proof of the putting is in the heating, that it always winds up in the particular man. Now, but look into next page --
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: That is not all what I claim sir.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: I -- but I was undertaking to show you right then when you asked me that question. You turn to Page 21, their answer --
Speaker: I have a question (Inaudible)
Aubrey R. Bowles, Jr.: Well sir, the --
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: Of course, there's no trouble with that, certainly.
Speaker: Why (Voice Overlap) --
Aubrey R. Bowles, Jr.: But the Court didn't sue what your premise was.Our Court didn't say that, sir. I have to disagree with you, I'm sorry.
Speaker: What did your Court says?
Aubrey R. Bowles, Jr.: My Court said that they did it wrong in the past. They said, they would not do it anymore, anywhere. And in seven different places since then, they have done it wrong which makes my Court believe that they will do what they have done in the past, namely promised they wouldn't and do it again.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: Well, that means that I must review right now, which I had intended doing from the record very briefly, what this plan is. First of all, it is a contract agreement between the lawyers, and I suggest to you that there's nothing in the Illinois decree that forbids this. There is nothing in their brief or anywhere else that says what I'm telling you now isn't still going on. There's no denial of it that they entered into a contract which says in effect, "If you will appoint me to be the lawyer in this region, then I agree to do certain things namely, to handle your FELA cases on a 25% commission instead of a higher one. And I agree that I will pay all the expenses involved in the trial, such as, getting witnesses' fees and medical testimony and that I will investigate the case and pay all those expenses. And, that if I will do all of those things, you will undertake by a system of advertising of me, the lawyer, to all of your members in such a way that I will be assured of a sufficient whole -- sufficient volume of business in order to warrant me doing this business on a wholesale basis." Now, that's the contract that they signed.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: That's what I was coming to a moment ago. That contract and it's the advocacy of that is what they want to do as I was about to show you. Look at Page 8888 -- 8888, that is in Volume II sir. Now, this is a contract that Mr. Savage signed back in 1937. The purpose of it is stated in the first paragraph. Regional lawyers will be selected in various railroad centers in the United States with a view to rendering the service contemplated by the establishment of the Legal Aid. And the total membership in a given districts so as to give regional lawyers a reasonable assurance of a sufficient volume of Brotherhood business to warrant their rendering of proper service on the basis of compensation agreed upon. Now, Mr. Savage signed that contract as you will see over at page 8982. I think that's where he said it back, right at page 891 and he --
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: 1937 sir.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: 1937 and he's been operating under that contract and so far as I know, and this record shows, he is now operating under this contract. It has been amended by letters, saying that he can't split fees. But it has never been amended to show that the Brotherhood is not sending his name daily, monthly, weekly, by its publications, by its directories, by seculars, by officiaries, meetings, and which he's allowed to speak and tell him what a great lawyer he is and how many great cases he has won and so forth and so on. In other words, this is a -- a Number 1 Madison Avenue pre-mind conditioning that if you ever have an accident, this is the lawyer you must employ. And that's a contract that they've entered into. Now, that is the thing that we are after, mark if Your Honors please, that somebody who is a friend. Incidentally, there is proof shows, generally, those friends who went to go and tell the man about his rights, got paid off anywhere from $150 up to $1000. But the -- this is not an objection of the Virginia State Bar and then a friend should go to a man and say, "I -- I know my cousin uptown." You will find in this record where these regional lawyers, get into realms with themselves, trying to see whose going to get the case that you -- one or the other is going to get and they begin to hold them away from each other. There is a case of that sort in this record established where within one day, after a girl came back from a hospital, after having giving birth to a baby, three days after her husband was killed on the railroad, she was assailed on the first day of her return by reason of counsel in Atlanta. And on the third day after her return, by the Chairman of the whole Brotherhood on a particular Georgia railroad trying to take it to Mr. Reeves over in Birmingham, so they were competing with one another. That is that they agreed of trying to break up. Not the question of what I hope my friends do for me is to recommend me, but you will find in the hideous deposition, right in the State of Illinois, that happened after April 1, 1959, that these people came after Mr. Hughes so much and so often and so frequently until Mr. Hughes had a nervous breakdown at the solicitation. That is in this record. That is the reason that the record is so voluminous because those cases had to be shown in order to show this Court exactly what has been going on and what we believe is still going on.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: The Illinois Supreme Court in so many works did not jump on solicitation perceived. The Illinois Supreme Court said we are greatly embarrassed by the prior decision of our intermediate Court that said this was a wonderful plan. The -- and on that account, we will not administer any disciplinary measure against the union. They said, "You cannot have a man that will go out and carry a contract to sign and to fill it up." They said, "You can't split fees." They said that you can't in the thudding of this thing. You cannot carry around checks showing what the great settlements we've made in the past. And you cannot make contributions to the Legal Aid Department. But the Illinois Supreme Court did not say, you cannot advertise this man ahead of time to the point that everybody is brainwashed already if you have a -- have an accident, the whole force of the whole thing converges upon him to get him into the hands of one single lawyer. Now, you'll note, the contention is not their right to recommend a competent lawyer. The contention is to recommend a competent lawyer selected by me, the president, under my control that I think is competent, not the man who is going to have the case. Now, the president has said, and I believe you asked the question Mr. Justice Harlan, that about the control of fees. The control of fees still exists. Mr. Kennedy testified that if anybody charged more than he thought he ought to charge, he'd fire him as reason of counts. And I said to him, "Mr. Kennedy, you do control the situation, do you not?" And he said, "To that extent." Because the Constitution shows and the whole case shows that the sole control of this Department is in one man, the president, under the Constitution and he's the only man that can approve anything that's done in there.
John M. Harlan: The record says that was -- it has been (Inaudible)
Aubrey R. Bowles, Jr.: What is that sir?
John M. Harlan: Does the record contain the list of 16 lawyers?
Aubrey R. Bowles, Jr.: Yes sir.
John M. Harlan: Does it show the lawyers --
Aubrey R. Bowles, Jr.: I don't think it's printed here. I'm not --
John M. Harlan: Well, are there names in the record?
Aubrey R. Bowles, Jr.: There are five or four directories that are -- they are quarterly directories and for one year on a quarter, I think.
John M. Harlan: Is there --
Aubrey R. Bowles, Jr.: Yes sir, 949
John M. Harlan: 949 --
Aubrey R. Bowles, Jr.: 949
John M. Harlan: Did it -- did it show whether or not any changes in the last time -- any additions to it were made after April 1, 1959.
Aubrey R. Bowles, Jr.: I think there had been one. All of these people are members of the Brotherhood. I think one man has died. I'm not too clear about that.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: Yes, sir.
John M. Harlan: Very well.
Aubrey R. Bowles, Jr.: Changes at the end of that volume sir.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: No sir, that would probably --
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: Yes sir.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: Which one?
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: Yes sir.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: That is correct sir.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: That is right sir.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: When I was asked the question, I was right on that point sir, so if you'll turn to Page 21, you will see that is what they want to do. Next page --
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: I think so sir.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: That of course the third thing is what makes it wrong.
Speaker: That is wrong --
Aubrey R. Bowles, Jr.: That's correct sir.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: That's right now -- now you see, that is illustrated. Turn to Page 21, the very next page you're looking at, right at the middle of the page.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: Of the gray brief, that -- their reply brief. Such decree prohibits the petitioner from any effective advocacy to its members. That's Page 21. Now, of the advisability of obtaining legal advice before making settlement of that claims, now the State Bar doesn't objective to people advocating that you get legal advice before you settle a claim. But the next thing they do -- we do object to namely, the effective -- effectively and successful, effective advocacy to its members, two of the recommendation of particular attorneys to handle such claim. Now, you will see what they mean by that if you'll turn to Page 27 of this brief, and look right in the middle of that and you will find --
Hugo L. Black: (Inaudible)
Aubrey R. Bowles, Jr.: That is right.
Hugo L. Black: (Inaudible)
Aubrey R. Bowles, Jr.: That's where it gets done. That's right sir. Now, because you will see on Page --
Hugo L. Black: (Inaudible)
Aubrey R. Bowles, Jr.: Of course not sir.
Hugo L. Black: (Inaudible)
Aubrey R. Bowles, Jr.: It's the solicitation agent for these lawyers. That's what it is.
Hugo L. Black: (Inaudible)
Aubrey R. Bowles, Jr.: That is correct sir.
Hugo L. Black: (Inaudible)
Aubrey R. Bowles, Jr.: That is correct. They tried to get under the Button umbrella.
Hugo L. Black: (Inaudible)
Aubrey R. Bowles, Jr.: That's --
Hugo L. Black: (Inaudible)
Aubrey R. Bowles, Jr.: That is our position sir. So, now you'll see that's what they want to do by looking at Page 27. After a recital that all lawyers except the union lawyers are hostile to union members, which I think is a very erroneous assumption, says, because of this hostility, the only effective way to see that union members obtain legal advice is to permit group referral to union lawyers. This is that basis of the petitioner's plan. Now, they can see that that's a basis of their plan. Now, the next summon step --
Hugo L. Black: (Inaudible)
Aubrey R. Bowles, Jr.: Yes sir, that exactly so. If they can do it, the Atlantic and Pacific Tea Company can do it. Anybody can do it. I can get up at bunch that can solicit for me. I don't see how it can sanctify an illegal act because it's a union.
Hugo L. Black: (Inaudible)
Aubrey R. Bowles, Jr.: Yes, but there is no political right here involved.
Hugo L. Black: (Inaudible)
Aubrey R. Bowles, Jr.: That's right sir. Now, I read the next sentence on Page 27 and you will see exactly what they have in mind. They say that the right to freedom of speech -- now, the right to freedom of speech and the right to freedom of association, that fundamental right permits the Brotherhood to advocate their employment of those lawyers in whom the Brotherhood has competence. Alright, it isn't a question of recommending. It's a question of solicitation, advocating and when we get to question of where there is a financial interest -- I've just read to you that in 1955, the interest was something over $2.5 million.
Byron R. White: Suppose the -- is this -- as you call it "soliciting and advocating" which apparently I think is different from recommending presumably. Why isn't this activity talking about it alone squarely covered by Button?
Aubrey R. Bowles, Jr.: Well, now I've got a whole section on that, so I was hoping to get to it. But before we leave 888 in this record, I wish you would note the other things in this contract. They're advertising. When the regional lawyers are selected and from time-to-time thereafter, articles will be published in the Trainmen's general informing members of the services rendered by the Legal Aid Department and advising them also of the names and addresses of regional lawyers.
William J. Brennan, Jr.: (Inaudible)
Aubrey R. Bowles, Jr.: There is no contention that they have been other than modified by the letter of Mr. Kennedy which said, "You must follow the Illinois decision in regard to splitting fees and making contributions of money."
William J. Brennan, Jr.: Where is that found?
Aubrey R. Bowles, Jr.: That letter is -- that letter is at Page 958 sir.
William J. Brennan, Jr.: (Inaudible)
Aubrey R. Bowles, Jr.: That is Page 958, which says in a compliance have said opinion and illegal counsel who represents the Brotherhood is hereby instructed and required to live up the said opinion in its entirety. The Brotherhood will finance the Legal Aid Department, will investigate accidents. That puts me in mind to answer one other question and that is, that the letter also and instructions from Mr. Kennedy provide -- they said they don't have any investigators now. What the local lodge secretary is now under the Constitution, ordered to do the same thing that the prior investigator did out of the grant laws.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: Yes, sir.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: Well now, if Your Honor please, in our State, we have legal aid and the Bar that participates in it. One of the criticisms of this whole thing with -- was a misnomer of this Department. Legal Aid is supposedly as I understand it, and -- and we, in Virginia, understand it, to be for indigent people and the legal aid in Virginia is prohibited from accepting any contingent fee contract in a case that is worthwhile to any lawyer. So we're not dealing with that sort of thing here at all. And incidentally, this record also shows but Mr. Kennedy said that the -- that the Brotherhood and the Legal Aid Department wasn't interested in any of these cases except the big ones. Now, that's in his testimony.
Hugo L. Black: (Inaudible)
Aubrey R. Bowles, Jr.: I don't think that they could solicit them to file a suit. I believe that would be common law amendments as we understand it in our State.
Hugo L. Black: (Inaudible)
Aubrey R. Bowles, Jr.: Yes, sir.
Hugo L. Black: Soliciting (Voice Overlap) --
Aubrey R. Bowles, Jr.: That's correct sir.
Hugo L. Black: And it could advice any (Inaudible)
Aubrey R. Bowles, Jr.: I think so sir. If -- if it was on the basis of solicitation.
Hugo L. Black: (Inaudible)
Aubrey R. Bowles, Jr.: Exactly sir.
Hugo L. Black: (Inaudible)
Aubrey R. Bowles, Jr.: That is exactly right.
Hugo L. Black: You (Inaudible) the law.
Aubrey R. Bowles, Jr.: Exactly sir.
Hugo L. Black: In that regard, (Inaudible)
Aubrey R. Bowles, Jr.: Motive has nothing to do with it too, so far as I can --
Hugo L. Black: (Inaudible)
Aubrey R. Bowles, Jr.: Yes.
Hugo L. Black: (Inaudible)
Aubrey R. Bowles, Jr.: Now you see this plan sets up what seems to me is sort of an elaborate early warning system to these people who they are engaged in a dangerous activity. There's no question about that. And they are unquestionably likely to have an accident and they are told in advance. The man you heard at the (Inaudible) last Friday is the only man in this whole area that knows enough about this thing to give you a square deal, and to get you a square deal. And they undertake to argue, that all railroad clear maidens, thieves and robbers who have steal, that's -- that's the motive upon which the plan was done. It was that those people would do your deck. Now, we get around to them that this is a composite thing. It begins with the original proposition of saying we've set up a plan, we've designated the lawyer, we advertised him, we agree that in -- in turn for your agreement to do this the way we want it done, we will see that you get the volume. And if you read on -- on those pages of 888, you will see that the elements of control, the control fees, the solicitation and splitting of fees are all in that contract. Now, it has been modified with respect to the splitting of fees. We do not think from this record that that is necessarily a fact. But we frankly concede we have no proof of it. Now, the question was asked about --
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: I don't know of any statute. We have a statute today, as you can use as any --
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: -- statement that a --
Earl Warren: But those statutes are clear (Inaudible)
Aubrey R. Bowles, Jr.: That's a subject of great debate in Virginia whether we have a maintenance statute or not. The adjustable -- objectionable parts of it fall out or did the whole thing go down. That's being debated in our general assembly right now, meeting.
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: I commence this suit and I did not undertake to rely on any statutes except the one that I set out in my brief at the beginning. Of course we rely upon the apprehension statute, which says who can practice law and who can't and there is the right of injunction. This one was not stricken down by the Button case. There is a right of injunction by the Congress' attorney from any -- against anybody from soliciting any claim against any person, firm or corporation subject to the date of the injunction. Now, that --
Earl Warren: Can you repeat Mr. Bowles --
Aubrey R. Bowles, Jr.: Sir, and a person, firm or corporation.
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: That is correct, sir.
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: All hands sir, off the top of my head, I don't recall of anything prohibiting that but we do have a statute --
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: No, sir. I do not think so. That is not soliciting somebody to --
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: I don't see how the lawyer of the company would participate in that transaction at all.
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: I wouldn't know about that sir. I know that the contracts have been in advance, approved by lawyers, the all costs.
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: To the Claim Department, I had -- from what your question infers that the claim agent is going out and doing that.
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: That I would not know, sir, that whether they're lawyers or whether they're not lawyers but if they are -- I -- I'd --
Earl Warren: (Inaudible)
Aubrey R. Bowles, Jr.: They have a financial interest in the contract. They are the people that -- I've got to pay the money in the end and not the name of the show. The name of the show, it doesn't pay the money.
Hugo L. Black: (Inaudible)
Aubrey R. Bowles, Jr.: Not by virtue of the injury, by virtue of the contract with the lawyer. They're only having answers in the injury.
Hugo L. Black: (Inaudible)
Aubrey R. Bowles, Jr.: I don't believe that there's any state I know off that where you can assign an interest in a personal injury.
Hugo L. Black: (Inaudible)
Aubrey R. Bowles, Jr.: Well, that would not necessarily be an assignment of a -- of an interest.
Hugo L. Black: (Inaudible)
Aubrey R. Bowles, Jr.: Well, may I -- may I seek refuge in the fact that it wouldn't be a legal financial interest that would be protected.
Hugo L. Black: (Inaudible)
Aubrey R. Bowles, Jr.: That I understand is a plan that is now being devised in order to get that kind of an interest.
Speaker: What?
Aubrey R. Bowles, Jr.: That I understand is a plan that is now being devised by this union in order to get that sort of interest. That's what I have heard.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: I understand sir.
John M. Harlan: (Inaudible) Justice White's question (Voice Overlap) --
Aubrey R. Bowles, Jr.: (Inaudible) sir. Could I have saved three minutes to do it here. Now, there -- there -- the First and Fourteenth Amendments has interpreted in the Button case as I understand it, undertake to say that, well first shall I say this. The Button case starts off, by recognizing the State's interest in regulating the "tradition on an illegal practice of barratry, maintenance and champerty". Now that the assumption and credibleness upon which I understood your opinion to start sir. Now, from time immemorial I think this Court has recognized the rights of the states to regulate the practice of the law and the professions, and if we get to that point really what the question and real issue here is whether or not that practice in law is a profession or whether it's a business. Now, if it's a business, there's no difficulty about regulating the -- them doing the things that they want. But if it is a profession, it is the only profession I submit in which the courts and this Court has the inherent power to regulate. It's the only one. Now, you've regulated dentist from hanging a tooth outside the window, you have regulated various and sundry professions on the ground that a state has a proper right to do that and you have seen some magnificent things in assembler case for example. The community is concerned with the maintenance of professional standards which will ensure not only competency and so forth and so on. Now, in this situation, as well as in (Inaudible), this Court has never expressed a doubt about the states prior right to regulate the profession that overrides the First and Fourteenth Amendments. Now, the exemption that was made in the -- in Button as I understand it if I read the majority opinion there correctly, is that that interest does not justify their prohibition of the N.A.A.C.P. activities disclosed by this record. Now, the activities that were disclosed by that record were that they were modes of political expression which were undertaken and used to protect constitutionally guaranteed rights. Neither of those exists in this situation.
William J. Brennan, Jr.: (Inaudible)
Aubrey R. Bowles, Jr.: A federally created right, anybody that gets hurt has the right to sue for injury if it's a negligent accident.
William J. Brennan, Jr.: (Inaudible)
Aubrey R. Bowles, Jr.: He only has the right to get relieved of the common law difficulties.
William J. Brennan, Jr.: (Inaudible)
Aubrey R. Bowles, Jr.: That is correct sir, and he sues under a federal statute. But I do not see the political aspect of that in connection with a constitutional and guaranteed right. As a matter of fact, I do not understand that the right to sue for a personal injury is necessarily a constitutionally guaranteed right. But all of that maybe if Your Honor please, there is no political aspect under as clearly on this record, the very material financial aspect which you may have great point of saying was not present in Button.
Byron R. White: (Inaudible) told you to do that you could prevent then an individual employee -- an individual person from recommending a lawyer to a friend of you. His speech would not be subject to person under protection I suppose on your -- on your theory.
Aubrey R. Bowles, Jr.: No sir, I think that the regulation of it and there's nothing in this decree that prevents the individual present for doing that. There isn't -- there isn't anything in this decree that prevents recommending a lawyer. There is in this decree something that prevents going out and running and capping and getting all the cases for him that you can. That's what prohibited. Well, I see that my time is practically up. I submit if Your Honors please, that the practice of law is not alright. It is a privilege conferred by the state. Now, we live under the government, under law and this Court has many times approved the proposition that a minute a member of the Bar becomes a member of the Bar. He's part in the puzzle of the government under law and a member of the process of administration of justice. Now, if the survival of government under law is going to succeed then it is not to depend upon the respect that the public has and the citizenry for the administration of justice. And then tell you to the lawyer under practice of law, is vital to the survival of our system. Now, is this practice of law a profession or is it a business? I submit if Your Honors please, that the Bar of Virginia looks confident and to this Court at the pinnacle of that system to assist it in maintaining for it a high standards of a profession. Thank you.
Speaker: (Inaudible)
Aubrey R. Bowles, Jr.: No sir and I think also an answer to that question, that if the Union would be contempt to do that, they would render a great service both to the Bar and to the public.
Earl Warren: Mr. Naughton.
John J. Naughton: Mr. Chief Justice, may it please the Court. I'm in the laws to understand the position of the Virginia Bar Association. It seems to me that as stated in its brief and as stated on oral argument that the many contradictory aspects have been at the -- the same time urged by the Bar. This case gets down it seems to me to how this Court and how the Bar would feel about solicitation. When we first start discussing the subject of solicitation, I think it is important to mention as it is stated in the case of In re Haines in Sixth Federal Supplement 467. The fact that somebody says that someone solicits a case is not an end to the matter. The question always raised in these cases is, is the solicitation unethical, illegal, and unlawful? As the Button case states, was there a malicious purpose in mind -- in the mind of the solicitor? The record in this case is clear. There is no such malicious purpose. This Union was organized many years ago in 1885 and it was organized for one purpose only. To tend to the many injuries and deaths suffered by its members. The organization commenced as a Fraternal Insurance Association providing insurance for its members who at that time were unable to obtain insurance from any insurance company. Throughout its history in its Acts of 1906 and in 1908, and seeing that the original Federal Employers Liability Act become a statute of the United States that has been interested in the injuries and the debts suffered by its members. Today, it seems to me that the question is, "Does this Court recognize the rights of free speech to recommend and refer?" We have cited in our brief many summaries which have stated that an uncompensation -- uncompensated recommendation and referral has never been held to be a violation of legal ethics. We also have in this case the -- the question of the conflicts between the union members and members of the Bar. Many years ago in 1937 for example when Mr. Savage signed his contract which is no longer a contract minding either him or the Brotherhood but has been avoided, has been abrogated. The -- the record shows clearly that it was a letter in 1946 which was written to all legal counsel specifically stating that the Brotherhood had no financial interest in the cases that is -- there was end the fee splitting --
William J. Brennan, Jr.: (Inaudible)
John J. Naughton: Yes.
William J. Brennan, Jr.: (Inaudible)
John J. Naughton: Yes it is Your Honor and it is there by a way of a letter from the president of the Brotherhood then Mr. Whitney in 1940s.
John M. Harlan: (Inaudible) Mr. Bowles
John J. Naughton: Yes, it is Your Honor. There is also the letter Mr. Bowles referred to.
Hugo L. Black: (Inaudible)
John J. Naughton: I beg you pardon Mr. Justice --
Hugo L. Black: (Inaudible)
John J. Naughton: Yes, that is a letter of 1959 saying to the counsel. In effect your lawyers, we -- we intend to follow the Illinois decision. You read the decision and you live up to it.
Hugo L. Black: (Inaudible)
John J. Naughton: It's in the --
Speaker: 833
John J. Naughton: 832 or 833 I believe Your Honor.
Arthur J. Goldberg: (Inaudible)
John J. Naughton: There is no contract that is effective for those who signed the original contracts and for some of the man who now have the designation, they have never at anytime they have held the designation at a written contract with the Brotherhood or a contract which was oral containing those terms.
Arthur J. Goldberg: Well, how about Mr. Savage?
John J. Naughton: Mr. Savages' contract and along with the other contracts was abrogated both in 1946 as I read the letter of President Whitney to Mr. (Inaudible) now is no longer a counsel for the Brotherhood and by the letter referred to by Mr. Bowles. That is the letter of Mr. Kennedy signed the Illinois decision allows us do certain things for -- prohibits us from doing others, we expect you to live up to.
Speaker: (Inaudible)
John J. Naughton: That's correct Your Honor.
Speaker: (Inaudible)
John J. Naughton: No, Your Honor the -- this would be outside of the record of course but the -- there is no contract at all. We have sufficient --
Speaker: (Inaudible)
John J. Naughton: Which would --
Speaker: (Inaudible)
John J. Naughton: That's correct Your Honor and I think there would be a very small number of counsels who are still with us from 1937. Many of them have died or retired, have been replaced.
Speaker: (Inaudible)
John J. Naughton: Yes sir. I don't -- in any event, I think that this contract is illegal document. This so-called contract is denominated rules and regulations. I think it was an agreement between the counsel and the Brotherhood of Railroad Trainmen as to what the principles were, that should apply in their handling of these claims.
Hugo L. Black: (Inaudible)
John J. Naughton: I wouldn't --
Hugo L. Black: (Inaudible)
John J. Naughton: I wouldn't so ready that paragraph Your Honor. I think that should be read but it is impossible to control their choice in any event. But that they certainly have a right to choose alternative Regional Counsel, that is another words that would say method of making specific but not only could they reject the Regional Counsel tendered but they could reject him and choose another Regional Counsel.
Hugo L. Black: (Inaudible)
John J. Naughton: The --
Hugo L. Black: (Inaudible)
John J. Naughton: Question I supposed would arise in this manner, a Regional Counsel represented a client and then he settled his case and subsequently, he was injured again. He went directly to the Regional Counsel and asked him to handle the second case and then there would be a question in that case, was that a Brotherhood case or was it a case that the man got by virtue of personal reputation? So it was -- as part of these rules and regulations assume that anytime the man was a member of the Brotherhood, it was a Brotherhood case.
Hugo L. Black: (Inaudible)
John J. Naughton: At that time, I think there was a -- there were two separate contracts. The Brotherhood had a contract worth obtained 5% or 6% of the gross recovery for its investigating services.
Hugo L. Black: (Inaudible)
John J. Naughton: That is no limiting.
Hugo L. Black: (Inaudible)
John J. Naughton: I beg your pardon.
Hugo L. Black: (Inaudible)
John J. Naughton: I would assume that may have been one of the purposes.
Byron R. White: Mr. Naughton, do any of the decrees outstanding against the Brotherhood prohibit either expressly or impliedly the Brotherhood from hiring and paying a lawyer -- putting a lawyer on its staff to handle the cases of its members in court?
John J. Naughton: I would say this decree does because it prohibits the giving a legal advice.
Byron R. White: And do the other decrees?
John J. Naughton: That question has never really been raised in any case except the Doughty versus Grills Case and there it was raised down a conjecture and speculation out of the evidence of the Brotherhood was given legal advice.
Byron R. White: But the Brotherhood has never attempted to do it. Actually they have a -- have lawyers on its own staff which handles cases for its members.
John J. Naughton: Oh, in 1931, this plan first started. Mr. McGrath, who was the General Counsel of the Brotherhood, specifically advised the members in each case whether they have a claim. Of course that was back in the time when there was assumption of risk --
Byron R. White: Well the Brotherhood (Voice Overlap) --
John J. Naughton: -- all its defenses and it was quite complicated.
Byron R. White: The Brotherhood is still advising members when they go to call him and that they have a claim, well I think they have.
John J. Naughton: It's quite different --
Byron R. White: You mean it's different whether if it's --
John J. Naughton: To say that when I know a man who was injured in an automobile accident, I say you have a case without knowing too much about the facts. And when I, as a lawyer, examine the facts and say so and so is liable because of certain legal principles. I think that all individuals have the right to say to a person, "You have a case because of your automobile accident," or because of your injury while you're at work. You will have a compensation claim because you were injured in an industry covered by compensation. I don't think that's giving a legal advice.
Byron R. White: But the Constitution of the Brotherhood provides that this activity is one of the -- one of the activities of the Brotherhood? It is one of the things people pay dues for?
John J. Naughton: The Constitution doesn't provide, that is one of the things that --
Byron R. White: That authorized them.
John J. Naughton: -- that authorize them, and specifically directs the -- a local lodge officer primarily the secretary to fill out forms and send them to Cleveland for statistical purposes and also to recommend --
Byron R. White: To the extent the Legal Aid Bureau has expenses which I gathered it does, it now and it must finance it solely out of the union due?
John J. Naughton: And that has started out the general fund as it's shown by the record.
Speaker: (Inaudible)
John J. Naughton: Oh we would agree that they would solicit. And we are -- we have a subsidiary point that says that they don't ethically solicit but this is something that they have an interest in. But lawyers, I supposed to perform services for people and that the facts that people who have an interest recommend the service of the lawyers and no way constitutes an unethical practice. But assuming that it is unethical, we never let's say that the constitution prohibits Virginia from stopping us or making these recommendations and referrals.
Arthur J. Goldberg: (Inaudible)
John J. Naughton: That's correct.
Arthur J. Goldberg: (Inaudible)
John J. Naughton: I would assume sir. I assume Mr. Bowles conceded that and answer to the question that they could recommend a list which they would send to each individual member.
Potter Stewart: Because you are -- excuse me.
Arthur J. Goldberg: (Inaudible) recommend a lawyer but there are many ways in which you could recommend lawyer (Inaudible). Does your constitutional argument reached that part?
John J. Naughton: I would say it would and I would also say the Illinois opinion would go that far because they states specifically we can recommend them generally and specifically.
Potter Stewart: Well, does it reached this far? Forget for a moment the Brotherhood or Labor Union. If you argue that because of the protection for the First Amendment, a state could not constitutionally forbid lawyer generally from advertising services --
John J. Naughton: No.
Potter Stewart: -- billboards or --
John J. Naughton: No I would not -- I would not argue that. I would think it's a different situation when the lawyer is involved and of course in this case, the lawyer is not involved. There is no -- no lawyer that it was a party of the union.
Potter Stewart: But deeply involved it seems to me (Voice Overlap) view of the -- the highest Court of Virginia.
John J. Naughton: And you're just speaking of this particular case?
Potter Stewart: This whole thing is about the lawyers, isn't it?
John J. Naughton: Yes, it's about the Brotherhood's plan in relation to lawyers but there is no lawyer who was a defendant and there is no evidence here in the record that the lawyers are advertising or -- or publishing pamphlets which they are circulating with the (Voice Overlap) --
Potter Stewart: I know but in this case, I was just exploring the grant of your constitutional argument and what -- I didn't quite understand your answer.
John J. Naughton: My answer would be that I would think there will be a different case when there was a lawyer involved.
Potter Stewart: And that a state could constitutionally forbid a -- a lawyer generally from advertising their services?
John J. Naughton: Yes I would think so.
Byron R. White: (Inaudible)
John J. Naughton: You -- you are assumed or speaking of --
Byron R. White: (Inaudible) from recommending this lawyer (Inaudible). Is the lawyer (Inaudible)?
John J. Naughton: I would say probably not, there's any assumption of the personal manager is not compensated by the lawyer.
Speaker: (Inaudible)
John J. Naughton: I don't see how a constitutionally any state can provide any person from recommending the lawyer that they think are the most confident.
Byron R. White: (Inaudible) both solicitors.
John J. Naughton: I think it would be unfair to call it solicitor.
Byron R. White: It would be unfair or fair?
John J. Naughton: Unfair.
Byron R. White: (Inaudible)
John J. Naughton: I would say no pay as one of the distinction, yes, the --
Byron R. White: (Inaudible)
John J. Naughton: As I understand it, there is no Virginia statute. There's a Virginia injunction a -- action based on the common law and I think that on the common law barratry, champerty and maintenances there is not a -- slightness similarity between the acts prohibited in those doctrines and the acts here. But the mere fact that somebody who regularly does something it seems to me doesn't make it anymore an invidious act in the fact that he does it occasionally.
Byron R. White: Even the lawyer is going to (Inaudible)
John J. Naughton: As most lawyers would do.
Speaker: (Inaudible)
John J. Naughton: I would say that the -- assuming that the personal manager was uncompensated but he would have the right to recommend the lawyer and his opinion was competent to handle these automobile cases.
Speaker: (Inaudible)
John J. Naughton: Even though he did it as a regular fund and that this was constitutionally protected.
Speaker: (Inaudible)
John J. Naughton: Well, I also think that of course he would not have the benefit of the federal statutes on which we relied for stating the public policy of the United States on these merits.
Speaker: (Inaudible)
John J. Naughton: Probably soliciting but not unethically soliciting.
Speaker: (Inaudible)
John J. Naughton: I do.
Speaker: (Inaudible)
John J. Naughton: I don't think there's anything bad about solicitation until it reaches a certain point where it's illegal.
Speaker: (Inaudible)
John J. Naughton: As I understand out of the Virginia laws, if they would have a compensation claim, they would be subrogated to the action of the individual injured, did not bring it and the company itself could bring the action.


Warren E. Burger: We will hear arguments first this morning in 75-5014, Doyle against Ohio and 5015 Wood against Ohio. Mr. Willis.
James R. Willis: Mr. Chief Justice and may it please the Court. Jefferson Doyle and Richard Wood, the petitioners in this case, were convicted and sentenced to serve penal terms of 20-40 years for the sale of Marijuana. This Court granted certiorari to consider among other things, the question left unanswered in US versus Hale that is the whether Constitution prohibits the persecution from showing that one who had been advised of his right of silence end up his right of counsel, properly subjects himself to questions designed to show he availed himself of such rights. Also involved here are serious questions as to whether an accused can be asked why he failed to disclose his defense at the preliminary hearing where he appeared with counsel, and whether a defense witness arrested and charged with same offense can be asked comparable questions. These include why they did not consent to a search of the car. Then there is the further fact that these points where vigorously argued to the jury. The relevant facts are not in serious dispute. Doyle and Wood were arrested shortly after they had been seen emerging from a parking lot. An informer had preceded them; he was carrying a 10 pound bag of marijuana which he indicated had been purchased from the petitioners. Their defense was that they had been framed. The fact shows that they had driven about the city, according to their defense, in search of the person who had framed them and they were stopped and arrested by the local police who were aided by the sheriff’s department. The Court of Appeals expressly viewed the asking of the assailed questions as properly designed to test credibility. The related arguments were approved on the basis of this determination. In a nutshell, we contend here that to the extent, Raffel may have somehow survived as a viable concept, this Court’s decision in Johnson, Grunewald and Griffin may have even been invigorated by Harris. This Court’s decisions in Miranda and Hale, certainly when viewed in tandem, mandate that Raffel should be expressly relegated to the archives of antiquity. The state and the government, in its amicus brief, would have this Court declare in spite of the clear and ambiguous thrust of Miranda and Griffin that the failure of an accused base on his right of silence and to counsel to reveal the details of his defense during police interrogation is a factor that bears on creditability. While it is doubtless truth that the Grunewald, Hale conclusion that mere silence is not inconsistent with innocence is a valid premise. It is also true that a request to consult with counsel should not create a negative force against the believability of exculpatory defense as was the case here. Raffel of course held that it was proper to show at a subsequent trial that the accused did not testify at his first trial. For me, it is most difficult to square Raffel with the Griffin principle that one cannot be penalized for not having testified and the elementary fairness concept expressed in Johnson makes the fact that the Miranda warnings were given these petitioners a most crucial consideration. The same as true of Grunewald as it is hard to see how this Court’s supervisory powers of the lower Federal Courts could possibly be more sensitive to the rights of an accused to a fair trial then it is to Constitution itself. As counsel reads Hale absent a on a duty to speak and absent a threshold inconsistency between a failure to do so and later exculpatory testimony, proof of silence, lacks a significance probative value and should be excluded. Here of course, as was the case in Grunewald, the focus on Doyle and Wood following their arrest was so intense that it was natural for them to feel they were being questioned solely for the purpose of providing evidence that could be uses against them. Indeed, there is simply no basis in this record even for the strained hope by them that the revelation of their defense to the police during interrogation could have possibly resulted in their arrest -- in their release. Raffel, of course, was based on an assumption rejected in Grunewald and again in Hale that silence is inconsistent with a later exculpatory defense. But as the Court has recognized, and I think it is salient here that there is simply no proof that an innocent person would tend to make an exculpatory statement whereas the guilty person will remain silent. We contend that it there is something wrong with the rule which permits the conversion of one’s permissible use of Fifth Amendments shield into evidence of guilt. This, of course, is the point made in the concurring opinion in Grunewald which, we contend, was adapted in Griffin and certainly impeachment tends to demonstrate it is untruth by implication which was a point made in one of the concurring opinions in Miranda. The interesting aspect of this case, of course, lies in the fact that in Ohio there were decisions which had expressly excluded the ability of the prosecutor to comment on the failure of a person to appear before the grand jury. The Supreme Court of Ohio had indicated that this of course was improper and then no amount of instruction could cure of this fault on the part of State. There were decisions which indicated it was impermissible to comment on the fact that one did not reveal his defense at a preliminary hearing. Again, the Supreme Court of Ohio take into position that any instruction was insufficient and then there was the Stevens case out of Ohio which indicated that it was impermissible to argue to the jury that at a point of arrest would have been a good time for the defendant to have revealed his exculpatory defense. There was a statute in Ohio which was of course applicable at the time this case was tried and that statute expressly provided that when an accused person appeared at a preliminary hearing without counsel, he should be expressly advised that the he need not make any statement and the failure to make a statement could not be used against him at the time of trial. Thus, we have the anomalous situation where one appears with counsel and he is of course of penalized because he did not reveal his defense at the preliminary hearing. To put the issue in its proper context, I think, that a slight emphasis should be given to some of the questions that were asked of Mr. Wood and Mr. Doyle. The point of course is that Doyle was tried -- Wood was tried first, Doyle appeared as a witness in the Wood case. Doyle was tried and Wood appeared as a witness. So that we do have a sophisticated aspect of some of the questions which deal with whether or not the same standards applied to a witness who appears testifying in the defense of a co-defendant or whether or not the Fifth Amendments right of silence which also was given to him at the time of his arrest is to be exposed to the jury to impeach his credibility when he appears as a witness. The Trial Court in ruling on emotion for judgment of acquittal a post trial indicated that different rules applied. We contend that the rights have not been given to both these defendants and both having indicated that they desired to rely on their rights and they wanted to consult with an attorney, that it does not make any difference whether he appears at the post trial -- whether he appears at the trial post indictment. It does not make any difference whether he appears as a witness or as a defendant that the implications are exactly the same. In this case, when Doyle and Wood were stopped, the officer indicated, and it is a fact that he told them they have the right to remain silent and they have right to consult an attorney. Both indicated that they wanted to consult an attorney. Later, they came to the incarceration area and indicated to Wood, you do not have any objections to us searching your car. He said I want to consult with an attorney about that and that was his evidence on the point, and Doyle of course gave comparable indications. Then, of course, the State then went to the problem of getting a search warrant and they located in the car some money and of course they were asked at the trial, why did you not consent to the search of the car and why was it that you did not reveal this frame defense to the police on the night of the arrest? Why, when you appeared at the preliminary hearing, did you not reveal the contents of your defense? And the question about the counsel was brought before by questions asked of one of the petitioners is why did you not relate the essence of your defense and he indicated that I wanted to consult with an attorney. So while you appeared at the preliminary hearing, you had an attorney at that time, did you not? And he said yes. And why did you not tell the judge at that preliminary hearing that you have been framed and would that not have been a wonderful time to have revealed to the judge that you have been framed. And all these questions of course were asked over objections. The only instruction given to Court related to the testimony of one who appeared on as rebuttal witness in the Wood trial, he was asked on the rebuttal that Mr. Wood, at anytime, protests his innocence. And we again objected and the Court indicated that -- did Mr. Doyle at anytime protests his innocent. Doyle testifying as a witness in the Wood trial, and the Court instructed the jury that that went to impeach the credibility of Mr. Doyle who had appeared as a witness on behalf of Mr. Wood. Yes, sir?
John Paul Stevens: Do you think there is any inconsistency between the defendant’s silence at the time of arrest and his testimony of trial?
James R. Willis: Do I see any inconsistency?
John Paul Stevens: Yes.
James R. Willis: Mr. Justice Stevens, I see none. I feel that the Constitution having as interpreted by Miranda having conferred upon the accused, the absolute right to remain silent, I see no inconsistency between that and the position taken by this Court in the --
John Paul Stevens: Assuming that the Court -- assuming the Court should disagree with you on the question whether there is inconsistency or not, would your position then fail? Please turn on the question whether or not there is inconsistency?
James R. Willis: I would say so, in the line of Harris versus New York, the position taken by the Court there of course related to inconsistent statements, which were at variance with the later defense. I think, although I am not in agreement necessarily with Harris, but given Harris, I do not think that this case would turn on that point because here --
John Paul Stevens: Well, there could ever be a case in which silence would be inconsistent with trial testimony?
James R. Willis: I would suppose so. Using the Third Circuit’s case of USL, the Bird case, whatever it is, there the indication was that the man was arrested and at sometimes after a person had been killed and later he was charged with a murder and his defense was accident and he was questioned as to whether or not why he had not reported the fact that he had accidentally injured someone. I think in that instance, at least I could live with that opinion. And there is the Fifth Circuit Opinion in Ramirez whether person testified a trial that he was coerced in selling the contraband. I think there, I can see how he might have been under some duty to speak, and I think that is the point, absent a duty to speak. I have problems with it and I have even greater problems when the man has given the Miranda warning which is to the effect that he has the right to remain silent. And I think that he certainly can rely on that. And there is an old opinion rendered by in the Sixth circuit I think it is the McCarthy and it is probably back in the 20s. And the point there was made that if a person could be penalized for exercising his right of silence that you have to change the warning to read that anything that you say can be used against you and if you do not say anything that can be used against you too. And I think that makes sense. It just seems that there is something wrong to tell a man you have the right to remain silent and you have the right to consult with an attorney. And he says very good, I want to exercise those rights. And then later, he is penalized for having done so. I just cannot reconcile that with the position taken by Mr. Justice Douglas in Johnson not can I take it --
John Paul Stevens: There was inconsistency between silence at his later trial testimony.
James R. Willis: Inconsistency, but I do not accept that the premise that silence is necessarily –
John Paul Stevens: At the time of the arrest, the officer cannot really know what the man is going to testify to later. So why would he has to give him that warning?
James R. Willis: Well the Court said he must be warned in Miranda, and I am relying on that. This Court --
John Paul Stevens: Warning about your silence maybe used against you. Did you say your silence maybe used against you if you testify later in a way inconsistent with silence?
James R. Willis: But I am not agreeing --
John Paul Stevens: In that circumstance, so which would be permissible I suppose.
James R. Willis: I admit that some of the decisions tend to suggest that this is the case. Again, the Third Circuit current opinion in Bird and RAMIREZ’S decision out of the out Fifth Circuit tends to say that there are some circumstances in which silence is inconsistent with innocence and with later exculpatory testimony and for that reason is admissible. But I think for that reason, this Court ought to articulate standard under which all of us can live. And I believe that is one of the real problems that confronts defense council. We recall, I think it was Mr. Justice Jackson in Watts versus Indiana indicated that any lawyer, worth his so, will advice his client not to make any statement on any circumstance.
William H. Rehnquist: Your client is free and you are free to argue to the jury that no inference should be drawn or that it is such a debatable inference that he may, well has just been following his Miranda warning. Why converted it into a question of law rather than simply something that the jury should evaluate one way or the other?
James R. Willis: Well, I think this position, Mr. Justice Rehnquist that any defendant who does not testify goes against the grant. And certainly if you cannot penalize him for not testifying to a jury in open court, why should you penalize him because he does not desire to risk distortion by the police officers as to what he might have said when questioned on the public highway. And for that reason and because the drift as I apprehend from the Court’s decisions is that he has this right to remain silent, why should he be penalized?
William H. Rehnquist: Why do you say you are penalizing? I mean you are letting a lot of statements made by the defendant to a third-party at the trial, you do not regard those as penalizing, do you?
James R. Willis: Well, I do not say he is being penalized but I think he properly subjects himself to a testimony that tends to prove him guilty when it is provided by others. But I think the Fifth Amendment says he does not have to provide any testimony himself which is incriminating, and this is at least the thrust to the position I am trying to defend. Certainly, I do not see how one can conclude that because a person is told he can remain silent and he decides to remain silent, that he must be guilty and that this has some evidentiary value insofar as the question of guilt or innocence is concerned.
Warren E. Burger: Something as a premise, Mr. Willis, the idea that the silence is incriminating, you say that he is not obliged to answer because this tends to incriminate him?
James R. Willis: No, I am not saying that -- I am not necessarily saying that if I am then I am not -- what I am trying to say, I am not saying very well. What I am really trying to say is that this Court, as indicated in Miranda that the man has the right to remain silent and he has to be told of this, and that he has a right to counsel and he has to be told of this. Now that seems to me that there is something basically unfair to then turn that around and penalize him by exposing to the jury that he elected to remain silent when he had an option which would have permitted him to waive these constitutional rights and reveal to this police officers, possibly in some secret session or in present of five or six other police officers who may very well distort what he has to say. I think he has a right to reveal his defense in an open court where it can be fully evaluated.
Warren E. Burger: Do you mean he has a right to reserve totally any statement about his defense until he is in open court with his counsel?
James R. Willis: That is it. That is precisely the point. I feel that he has no duty to speak when interrogated by the police officers and I think this Court has made that point very clear. And this is the point that I think Mr. Justice Douglas made in Johnson when the particular defendant was told by the Court that he could refuse to answer questions based on his right on this Fifth Amendment rights. And then later, the prosecutor was able to argue that the man had exercised his right of silence. Certainly, something fundamentally wrong to penalize a person for having exercised the right that you extended to him, and this is the point upon which I place my basic emphasis.
Warren E. Burger: Mr. Justice Jackson’s often quoted observation that if a lawyer has called in any lawyer worthy assault will tell his client to say nothing whatever. In the Miranda opinion, Chief Justice Warren, he recalled and added at some points in his discussion of the setting that we are talking about and it goes on to say it can be assumed that in such circumstances, that is when a lawyer is called in and the client tells the lawyer he is innocent and can exculpate himself, his statement goes on. A lawyer would advise his client to talk freely to police in order to clear himself. Certainly, some inconsistency between those two observations of the two justices?
James R. Willis: Yes, and I --
Warren E. Burger: Either one is a ruling of law but an observation.
James R. Willis: This is the point I was going to make. I think that the statement by Mr. Justice Warren, of course, was dicta and it certainly -- I do not agree with that particular statement and I feel that as counsel for a person who is on the accusation that I have the choice of giving him the advice which I considered to be consistent with the client’s best interest. I think that that is traditionally the role that defense counsel has to bear when he assumes the obligation of defending one accused to crime. I see nothing improper in indicating to a person against whom there is a raid, some suspicious circumstances that he should exercise his right to reserve as the court has indicated his right to defend against these judges in open Court. Particularly, when the likelihood that if he were to make all sorts of exculpatory statement is not going to result in this illusion elision in any way. In any event are void the problem going to trial then having the issue decided by a jury. Yes, sir?
Lewis F. Powell, Jr.: Do you draw the distinction between instances that exist at the time of arrest when the Miranda warnings are given and those that exist at the preliminary hearing?
James R. Willis: Yes. In this case I do because at the preliminary hearing, the man appeared with counsel and certainly, if he retains counsel, you ought to follow counsel’s advice.A nd at that point, we can assume that the counsel had evaluated all the facts and circumstances and in this particular case, he conducted a pretrial motion to suppress which had been defeated and the likelihood was good that the man was going to get indicted by the grand jury. Also, we had the State Statute which expressly indicated that if a person had appeared without counsel, the Court had to advice them that they need not make any statements and their failure to make any statements could not be used against them at the time of trial. So, are we to say that counsel cannot give the same advice to his clients that the Court would be required to give within he appeared without counsel? I hope that answers the Court’s question.
Lewis F. Powell, Jr.: He took the stand, did he not?
James R. Willis: At the trial, yes.
Lewis F. Powell, Jr.: The election not contested by or offer any explanation of his original silence, at the preliminary hearing it was a trial tactic as lawyers would perhaps say.
James R. Willis: Well, I would not certainly call it Mr. Justice, a trial tactic although it probably results in being just that. The point was it would have been futile for him to have testified at the preliminary hearing. The burden there is only a probable cause to believe that this person was implicated in some crime and is then up to the grand jury to determine whether or not he should be indicted. So the likelihood of him forestalling this situation at that point was too remote for him to even involve himself in trying to explain his particular defense at that time.
Thurgood Marshall: At one case, once you lose your emotions to suppress your dead pigeon anyhow so far as the grand jury is concerned.
James R. Willis: In simple -- oh yeah, so far as the grand jury is concerned, yes. I would like reserve whatever time I have left -- yes?
John Paul Stevens: Question on the facts. It was the defense theory at the trial of the informant had framed the defendants as I understand?
James R. Willis: That is correct.
John Paul Stevens: Was it part of the theory that the arresting officers were parties to the frame?
James R. Willis: Not precisely. No I do not -- I would say no. That was not a part of the defense. The point was that the particularly informants had already been sentenced to the penitentiary and he had been brought back and was out on bail pending a habeas corpus ruling and he sought out this officers that he happen to try to do something to help himself. He admitted this much.
John Paul Stevens: Thank you.
James R. Willis: And we were concerned that he was trying to get these people to go penitentiary in his place.
Warren E. Burger: Mr. Collins.
Ronald L. Collins: Mr. Chief Justice.
Lewis F. Powell, Jr.: Is the State of Ohio so in progress that it can not afford to print briefs filed in the United States Supreme Court?
Ronald L. Collins: I am sorry, Your Honor. I thought that we had complied with the rule. That is what we offer.
Lewis F. Powell, Jr.: Not complied with the rule, my question is directed that to the fact that the Great State of Ohio comes to our Court with a that has not printed, whereas most people who do appear here manage to find the means to print their briefs and it just puzzles me.
Ronald L. Collins: Your Honor, I had expected that since the petitioners had come in here in the form of a popper that we could have replied in kind if we had chosen to do so.
Lewis F. Powell, Jr.: Is there a certain right to do it under the rules and I understand --
Thurgood Marshall: You did not make a (Inaudible).
Ronald L. Collins: Excuse me? [Laughing] Excuse me, no.
Thurgood Marshall: I mean Ohio did not make a (Inaudible), oh yes.
Ronald L. Collins: No, Your Honor. May it please the court? My name is Ronald L. Collins. I am the prosecuting attorney for Tuscarawas County, Ohio. I wish to deal a little bit with the facts in this case and then I wish to stress five points in argument for clarification and amplification of the written brief which we have provided the court. Before we get into those matters, I do have one thing to indicate to the court less the court please on do emphasis on the matters as brought to the attention of Court by Mr. Willis, the defendant’s being sentenced to 20-40 years in penitentiary. As the Court is aware in the case of Downey versus Perini which has been sent back to the Sixth Circuit into Ohio for further determination. Ohio has retroactively changed its penalties in marijuana cases and this will apply to these defendants. As Mr. Willis pointed out to the Court, the facts here are relatively simple. I think they are complicated only by the disbelieved testimony of the petitioners to the defendants below and that they are very important facts are very important in this particular case. I think they are important in light of Mr. Willis’s concession here that inconsistency turns this case and that Ramirez is such a case. We contend it is but a short step and perhaps even backwards from Ramirez to our case. In the facts of our case, on April 28, 1973, the informant notified in Multi-County Narcotics Bureau, which is the local bureau in our County, Tuscarawas County, Ohio that he had set up a deal with one of the defendants, Mr. Jefferson Doyle to purchase a quantity of marijuana from him. The deal was for 10 pounds of marijuana, of course it is sackful  as it turned out. The price is to be $175 a pound or $1750 for the 10 pounds. The Bureau had trouble getting this amount of money and on the short notice that they had, however, they did get some amount of it $1520 or $1540 as I recall and had some part of that money photocopied so that they had the serial numbers. The informant was searched so that they found no drugs on him and the surveillance team, in fact several surveillance teams were set up to watch the informant as he went to his rendezvous. The photocopied money or – some of the money was photocopied and all was what given to him including the photocopied money and he set off for his rendezvous with the petitioners, the defendants below. The exchange was made. The informant gave the defendants his money and the defendants gave the informant the marijuana. Later, after search warrant, the money including that which was photocopied was found in the rented – the locked rented car of the petitioners bowled up under the floor mat, the passenger side of that car. Had trial and the trial testimony of the defendants they testified for in their own behalf in separate trials and each other’s behalf as witnesses in the separate trials. Their testimony essentially was that they were involved in this matter but it was only of the defendants, Mr. Doyle who wanted to buy marijuana not to sell it and that it was the informant who I might pointed out, the evidence showed knew he was under surveillance at the time this rendezvous took place was framing. The informant was framing by the defendants that the marijuana was his 10 pounds not the defendant’s. That the money -- how did they explain the money ?Well, apparently it had been thrown in the window and to the backseat at the time that they turned down the deal to purchase the marijuana, according to their story. Then it was their testimonies that day after they left this rendezvous, they discovered this money in the backseat and think scared, not knowing what to do, they hid it under the floor mat, yes they did hide it. And the --
Warren E. Burger: (Inaudible) how the police facts relate to the legal constitutional claims presented to us?
Ronald L. Collins: Well, it is going to be the contention as I get to it in my argument of the state that in considering the question of consistency or inconsistency was the silence at the time of the arrest. The Court must consider the nature of the trial testimony and what I am saying forth here is the nature of the trial testimony.
Warren E. Burger: Claimed not all silence – silence may not be used to impeach under all circumstances but under some circumstances and that this is one of the cases where it maybe so used.
Ronald L. Collins: That is correct, Mr. Chief Justice. The petitioners also went on to testify in their part of their case that they were trying and they were chasing this informant after they found that money to find out what is going on. Maybe some 10 or 15, 20 minutes and after they had driven around several blocks, say, they went in to find out what was going on and my question is, where they perhaps wanting to know what had happened to the other $400 that they had won and since they had indicated in their testimony that they did count the money. At this point, they were picked up and they did not talk to law enforcement officers who did pick them up who had found out about this through the informant going to the sheriff’s department and later a radio communication telling them – telling the other officers of what had happen. At the trial, the prosecutor cross-examined on the silence of the defendants at the time they were arrested. That is clear. Now, in argument, I would like to stress five points. First, it has been mentioned what is being penalized by the persecutor’s cross examination. I want to deal with exactly what is being penalized. Second, how the silence of the defendants at the time of the arrest became meaningful conduct not just silence. Third, I would like to deal with the purpose of the prosecutor’s questions. Fourth, the inapplicability of Miranda and fifth, some due process considerations--
Speaker: (Inaudible)
Ronald L. Collins: I will if you have a question, sir.
Speaker: Do you think it is a part?
Ronald L. Collins: I think not because -- I think that the preliminary hearing goes along with the same kind of point that we contend, obtain that trial. In other words, that the prosecution could make no use of the silence of the defendants in their case and chief and this certainly could not be brought up. Only side of the case presented preliminary hearing, the states case. And therefore, there was no occasions since the defendants did not take a stand at the preliminary hearing, there is no occasion for this issue to come up. The warning that the Court gave is very similar to the warning which police officers given to Miranda.
John Paul Stevens: The question is, why do you think there is the same degree of inconsistency between failing to take the stand at the preliminary hearing on advice of counsel and the failure to make a volunteered statement at the time of arrest?
Ronald L. Collins: Yes, in particular – and given that particular fact –
Speaker: Do you think they are equally inconsistent with his trial testimony?
Ronald L. Collins: This particular trials testimony.
Thurgood Marshall: Is it true that the prosecutor argued to the jury that he did not talk to its preliminary hearing?
Ronald L. Collins: Absolutely.
Thurgood Marshall: The question is why it is not indicated?
Ronald L. Collins: I said that it is not in the case that they took a stand.
Thurgood Marshall: No.
Ronald L. Collins: It is not in the preliminary hearing, Mr. Justice Marshall.
Thurgood Marshall: The prosecutor did argue that if you to test by preliminary hearing was evidenced to be considered against the petitioner?
Ronald L. Collins: That is correct.
Byron R. White: What if the government had used his silence on each side of the case?
Ronald L. Collins: Well that absolutely would be an error.
Byron R. White: Under what?
Ronald L. Collins: Well --
Byron R. White: Under Griffin?
Ronald L. Collins: No. I do not think Griffin applies to this type of case.
Byron R. White: Why not? Why not -- if the defendant was silent and --
Ronald L. Collins: Yes, in that case Griffin would have some application. I think what makes Griffin have no application in our own particular case is the fact that the defendants took a stand.
Byron R. White: Well I know but suppose that they have put somebody on stand and said well he did not take the stands and explain anything, it is preliminary hearing or at any other time that he felt, on their side of the case.
Ronald L. Collins: I think that is --
Byron R. White: Do you think that is there?
Ronald L. Collins: Yes.
Byron R. White: Well let us suppose, the government does that on their direct side of the case and then the defendant takes the stand and they impeach him or they ask him the same questions about his preliminary hearing. Were you silent at the preliminary hearing? Did you have brief explaining this? And he says no. Now you say that is permissible but using it on their side of the case is not?
Ronald L. Collins: That is correct. I think Miranda compels that.
Byron R. White: And you are suggesting that -- or is this silent just for impeachment purposes?
Ronald L. Collins: That is correct.
Byron R. White: Not a substantive evidence?
Ronald L. Collins: Absolutely. Not as evidence of guilt but evidence for impeaching purposes that his story -- the stories that they are telling, exculpatory stories are layer fabrications. The first point in the argument that I would like to make is about penalizing and Mr. Willis and the petitioners would contend that the state and by the questions and cross examination, that the state was penalizing the defendants for their exercises that are constitutional privilege. We contend that if there is any penalty at all that there was not a penalty for the exercise of the constitutional privilege. The penalty was for they are taking the stand and giving this fabrication, this fabricated exculpatory story. If they had not taken the stand, the prosecution could not have said a thing about the silence, their silence at the time of their arrest.
Thurgood Marshall: (Inaudible) Miranda ruling that they abide by what you say which is that you hear by one that if you make any statements, it will be used against you if you take the stand?
Ronald L. Collins: No. I do not think that needs to be done.
Thurgood Marshall: Is that not what you are arguing?
Ronald L. Collins: What I am arguing is that --
Thurgood Marshall: What you are arguing is once he takes the stand, this Miranda ruling means nothing?
Ronald L. Collins: I am arguing that when the trial testimony turns out to be inconsistent with silence that the Miranda warning means nothing.
Thurgood Marshall: So once he takes the stand and testifies, that is inconsistent, is it not, with silence?
Ronald L. Collins: No. None --
Thurgood Marshall: Talking is inconsistent with silence, is it not?
Ronald L. Collins: Yes, talking is inconsistent with silence.
Thurgood Marshall: So you have to tell him that that if you test -- whatever you tell us, we will use against you if he takes the stand?
Ronald L. Collins: No. I think the Court – the Trial Court has got the view, it is factual matter, listened to the testimony of the defendant which exculpates him and determine whether the nature of that testimony is such as it would cough or something other than silence.
Thurgood Marshall: (Inaudible) that any testimony to exculpatory testimony of the defendant, they would not justify you and use the Miranda?
Ronald L. Collins: Yes. I would point out the Hale case.
Thurgood Marshall: Hale case was the supervisor I think.
Ronald L. Collins: I understand that but I am talking about the fact pattern in the Hale case where -- and I think it is a closed case but the factors that were brought out in that trial --
Thurgood Marshall: (Inaudible) applied Hale to the State of Ohio?
Ronald L. Collins: Yes. As a matter of fact, I think I argued that in the written brief.
Byron R. White: Well, Hale is an evidentiary opinion, just the fact saying this testimony was not inconsistent, right?
Ronald L. Collins: Well, Hale --
Byron R. White: What if it were applied to the state, what would you say the constitutional basis would be for applying it to the state? Due process that just silence is does not any evidence?
Ronald L. Collins: Well I am not saying that --
Byron R. White: That certainly would not be a Fifth Amendment matter, would it?
Ronald L. Collins: No. I think it has to be due process and I think due process considerations would come down on our side. I do not think --
Speaker: You are satisfied with Hale as applied to the state?
Ronald L. Collins: Well, I view Hale as not reaching the constitutional question at all and either constitutional question on due process or Fifth Amendment and I do not think this is a Fifth Amendment case. I do not think Hale was at Fifth Amendment case. If that was anything, it was a due process case and that is the same thing I think this is. The second point is a related point and that is in light of the trial testimony of the defendants, their silence at the time of their arrest became conduct, because here they are with this marked money, this photocopied money in their car. They have all these things that they have testified to and then which were set out in detail, and I do not want to dwell on the facts anymore, which made them, -- this conduct made them voiceless in the presence of the realities that they were facing. A third point is related to this as well that the prosecutor asked about, and this has been a question before, asked about the defendant’s silence not to show guilt but to show that they were lying on the witness stand. I think the fourth point I would like to stress here is, in my view, Miranda has no proper application to either Hale or to this case. The warnings in Hale and in this case were given. They were heeded. The defendants said nothing. I contend that there is a different line of cases here, entirely separate from Miranda. Raffel versus United State, Grunewald versus United State, Harris versus New York and United State versus Hale. As a matter of fact, throughout the appellate argument at this case, State has relied on the language in Harris. I think the prosecution does have a right to rely on the language in Harris, some of which shows that Miranda does not apply. The court at Page 224 in Harris had said some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose. The discussion of that issue was not at all necessary to the Court’s holding and cannot be regarded to this controlling. Miranda barred the prosecution for making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes provided of course that the trustworthiness of that evidence satisfies legal standards. I think the Miranda rationale is important here that of deterring improper police conduct and getting rid of coercion. Here, the conduct of the police was entirely proper. They gave the Miranda warnings. It was no compulsion, no element of compulsion or coercion at all. The petitioners, the defendants made their free choice to take the witness stand at trial. They made the free choice to remain silent at the time of their arrest. And so that is an additional reason why I think there is no Fifth Amendment question here. There is no element of compulsion. There is no compelling at all. Due process in the Constitution in my opinion amount to fairness, and I do not think that there is anything fair about presenting a lopsided version of truth to the jury. I think that the defendants in this case, petitioners should not have been allowed to tell their story to the jury on impeded by being impeached by things which would go directly to the issue of whether there was a fabrication or not. Was there a recent fabrication after these defendants had listened to the state’s case throughout the preliminary hearings, throughout discovery procedures and trial twice, two separate trials? I think the jury had a right to weigh the credibility of the defendants and I think that the proper -- the prosecution had properly used the silence given the facts and the nature of the defendant’s testimony as impeachment as showing that this was a recent fabrication that they did not have a story at the time they were arrested and now all of a sudden at trial they do have a story. There should be a full and not just a selective development with the recent fabrication and credibility issues. Thank you.
Warren E. Burger: Mr. Willis. Let me put a hypothetical Mr. Willis. I am not sure whether you conceded an answer to Mr. Justice Stevens that in some circumstances silence might have a probative value but take this hypothetical case. A setting of the same as you have here except that the charge is inflicting serious injury while driving an automobile under the influence of liquor. Three men in the car and at a point after insignificant preliminaries, the policeman turns to the driver who has furnished his driver’s license and shown that he is the owner of the car, you are now under arrest for driving while under the influence of liquor. And it is my duty to warn you and then he goes along with the usual warning. And the owner of the car makes no response. Then at the preliminary hearing, he appears with the lawyer and makes no statement, no preliminary response at all. Then at the trial, his defense says he was not driving the car at all. He was sleeping in the backseat and the other two passengers were -- the other two men who were in the front seat and one of them driving. Would you say that the silence in these two first circumstances or either of them is inconsistent with innocence?
James R. Willis: I would say that it is not inconsistent with innocence and I would like to correct any impression that I may have given. I did not concede that there were any circumstances in which silence could be inconsistent with innocence. I indicated that there were some cases, Burt versus New Jersey and Ramirez where the Court took the position that in those circumstances, it was inconsistent with innocence. I said I could see how the Court came to that conclusion although I do not agree with it, but I am indicating that this case is not even -- does not fall in that field. This is different case in its entirety. My position is that silence can never, following the warnings that that eliminates any duties or impose that the accused might otherwise have to explain incriminating circumstances and that he has a right to rely on the warnings given to him by Miranda, and that would apply across the board in all cases. That is the position I have attempted to assert here. Certainly, if these defendants had the right to remain silent, then the police did not have the right to create any evidence out of their exercise of the right to remain silent. I feel that this Court’s decision in Hale ought to be applied full strength to the facts in the factual pattern involved here. Certainly, we have to concern ourselves about them asking these petitioners about consenting to the search of the car. I feel that they do not have to consent to the search of the car or ask Mr. Wood about this. He was the lesser of the car and he indicated I want to discuss that with my attorney. Now, how can you then torture that legitimately in the light of Grunewald and these other cases than to some evidence that can be used against these particular petitioners? I feel that the Court ought to follow the suggestion made by Mr. Justice Black in his concurring opinion in Grunewald and ought to eliminate Raffel from the books of this Court as a viable opinion. Thank you.
Warren E. Burger: Thank you gentlemen. The case is submitted.