Warren E. Burger: We will hear arguments next in Polk County et al. against Russell Richard Dodson. Mr. Jesse, you may proceed whenever you are ready.
Norman G. Jesse: Mr. Chief Justice, and may it please the Court, this proceeding arose out of a pro se complaint filed by the Respondent under 42 USC 1983 in the United States District Court for the Southern District of Iowa, November 5th, 1979. That complaint alleged various claims against the Petitioner Martha Shepard in the Polk County Offender Advocate's office against the Polk County Board of Supervisors and against the entity of Polk County. Respondent alleged that Petitioner Shepard had failed to properly represent him on appeal of his conviction for first degree robbery in the District Court of Iowa in and for Polk County to the Iowa Supreme Court. He claimed that her actions in failing to... in failing to represent him properly in that... in that appeal had deprived him of his right to counsel under the Sixth Amendment, and imposed upon him cruel and unusual punishment, and had arbitrarily denied him his state-created right to appeal to the Iowa Supreme Court from its conviction. He also asserted claims for... for legal malpractice and for breach of an oral contract to prosecute the appeal to the Supreme Court. The Polk County Offender Advocate was also named. The Board of Supervisors of Polk County and Polk County itself were named, alleging that they were responsible for Ms. Shepard's action because they had adopted established rules and procedures for handling such appeals. His complaint sought injunctive relief. It is of monetary damages and release from confinement. The District Court dismissed the complaint, ruling that Petitioner Shepard and the Offender Advocate did not act under color of state law, that the complaint did not allege the requisite personal involvement of the Polk County... members of the Polk County Board of Supervisors, or of the Polk County Offender Advocate. It construed his request for... for release to be a petition for habeas corpus, and found that he had not exhausted his state remedies, and therefore dismissed that as well. On appeal, the Court of Appeals reversed and remanded the decision of the District Court, finding that the county employed the public defender, and that a county... county employed public defender does act under color of state law, because the public defender in that situation is selected, paid, hired and fired by the county, that the public defenders have their power because of the fact that they are employed to represent indigent defendants, and not because they have been selected by the defendants for whom they are providing representation. Having decided that the county employed public defender is... is involved in state action, then the Court of Appeals ruled that the county employed public defender enjoys only a qualified immunity, and further, that as a matter of pleading, that the Respondent had stated a 1983 claim against the Board of Supervisors and the Offender Advocate.
Speaker: Did the Eighth Circuit intimate any view as to whether a non-indigent defendant suing his privately licensed counsel whom he had chosen would be liable under 1983 because the state had licensed him as a member of the Bar?
Norman G. Jesse: No, I don't believe the Court indicated that they would intend any such result. I don't believe that question was discussed.
Speaker: Do you think that would follow fairly naturally from this whole thing?
Norman G. Jesse: That is not the law, as I understand it. It seems to me that it would--
Speaker: Well, I never understood it to be the law, either, but I have never understood the Eighth Circuit's holding to be the law.
Norman G. Jesse: --Well, I agree with Your Honor that that would seem to be a logical extension from the finding that because they are county employed and have not been selected, that they are involved in state action. By the same rationale you could say that the license provided to practice law was state action sufficient to make a privately employed counsel amenable to suit.
Speaker: Subject to suit for his actions.
Norman G. Jesse: I do not agree that that is the law, and we are contending otherwise. Petitioner petitioned this Court for a writ of certiorari, presenting two questions, and that is whether the Court of Appeals erred in holding the county employed public defender acts under color of state law in representing indigent defendants, and is thus amenable to suit under 42 USC 1983, and two, whether the Court of Appeals erred in holding that in suits brought under 42 USC 1983 a county employed public defender enjoys only a qualified immunity from suit for his actions taken while representing indigent clients. This Court granted cert March 2, 1981. The Court is favored here with amicus briefs by the United States, by the National Legal Aid and Defenders Association, by the National Association of Criminal Defense Lawyers, and by the Minnesota State Public Defender.
Speaker: I thought the Court of Appeals indicated that a private attorney appointed by the state wouldn't act under color of state law, and certainly if that were true, a private... an attorney employed privately wouldn't, either, would he?
Norman G. Jesse: I would think that a private attorney employed by a defendant would not be amenable to suit under 1983.
Speaker: And didn't the Court of Appeals say so? At least... don't they have authority in the Eighth Circuit to the effect that an appointed attorney, a private attorney appointed by the Court to represent an indigent defendant does not act under color of state law?
Norman G. Jesse: There is such authority in the Eighth District and--
Speaker: In the Eighth Circuit.
Norman G. Jesse: --Or in the Eighth Circuit, and--
Speaker: I would suppose... wouldn't it be a fortiori that a private attorney wouldn't be subject to a 1983?
Norman G. Jesse: --Certainly it would be difficult to have those inconsistent results of a private attorney amenable to suit and a court-appointed attorney not.
Speaker: What about the prosecutor? Is he subject?
Norman G. Jesse: No, the prosecutor has absolute immunity.
Speaker: He has got absolute liability. How about the judge?
Norman G. Jesse: The judge has absolute immunity.
Speaker: In what respect does a public defender serving in this capacity as part of one of the three legs of the stool, the judge, the prosecutor, the defense counsel, in what respect is he different from the others in performing the broad social function and constitutional function of providing counsel?
Norman G. Jesse: Well, it is our contention that he is not functioning in that capacity, that he is not essentially different than the... in terms of the public policy ramifications, than is the prosecutor or the judge. However, in a very limited context, this Court has, in Ferri versus Ackerman, decided that he is not a part of a tri-partite equal person for purposes of applying--
Speaker: That was in a malpractice suit, was it not?
Norman G. Jesse: --That's correct. In a state t malpractice suit, that the Court would not apply a Federal absolute immunity to that situation.
Speaker: Isn't the real difference that he represents the defendant, period, and nobody else?
Norman G. Jesse: That's correct, and that is our position, that the--
Speaker: And that is the difference.
Norman G. Jesse: --that the public defender is really analogous to court-appointed counsel, court-appointed private counsel, and--
Speaker: But is he required to be?
Norman G. Jesse: --I think that he is required to be by both the canons of ethics by his responsibilities as a lawyer, to be... to owe his sole obligation and his sole-his sole work for the benefit of the defendant. The fact that he is employed as a public defender and is paid by the county is--
Speaker: He is not really employed. He is paid by the state. He is not employed by the state. Isn't there a difference there? I mean, when somebody is employed by somebody, he is under the control of that person, but is the defender here under the control of the state at all, once he is appointed?
Norman G. Jesse: --I believe not. He is not under the control of the Board of Supervisors of Polk County in any respect as it relates to his handling of his client's case, and the responsibilities and obligations that he owes to his client.
Speaker: Is he in any difference posture professionally... I emphasize professionally... from a psychiatrist at the state mental hospital for indigents, or a surgeon at a hospital provided... which provides services for indigents? In each case, he is to function as a professional carrying out his professional duty. Is that not right?
Norman G. Jesse: There is a sense in which that is true, yes, and the Respondents--
Speaker: In what sense is it not true?
Norman G. Jesse: --and the United States have cited cases which would analogize the situation of the professional relationship between the attorney and his indigent client, and a medical director of a state mental health institute or some similar facility.
Speaker: Well, we have held in O'Connor have we not, that the medical director of a mental hospital does... the state action requirement under 1983 is satisfied, haven't we?
Norman G. Jesse: Well--
Speaker: I know you haven't cited O'Connor in your briefs, or in your reply brief, but Respondent relies on it rather heavily.
Norman G. Jesse: --Right, Respondent--
Speaker: But didn't we hold that in O'Connor add Donaldson?
Norman G. Jesse: --The state action question was not... was not precisely addressed in O'Connor but that mainly turned on the cruel and inhuman punishment feature. It assumed, however, state action, and the difference--
Speaker: Well, we did, we certainly did, and we allowed liability, didn't we?
Norman G. Jesse: --You allowed liability, and so--
Speaker: Under 1983.
Norman G. Jesse: --so state action is assumed.
Speaker: Under 1983.
Norman G. Jesse: Yes, sir.
Speaker: Well, what is the difference between a doctor-patient relationship and the attorney-client i relationship? Is there any?
Norman G. Jesse: There is no difference, but you need to look further than just whether or not that professional relationship existed between the patient and the medical director, and whether or not that is different than the position of an attorney, a public defender and his indigent defendant, and there is a difference. The difference is that the medical director of a state mental health institute is performing both a medical function for which he has a relationship and providing for another state interest which is providing for the housing and confinement of persons and treatment of persons with mental illness. So there is another--
Speaker: Well, can't you say the same thing here, that a public defender is satisfying the state's obligation to protect indigents?
Norman G. Jesse: --The public defender is satisfying the public interest that is imposed upon them by Gideon versus Wainwright and the cases construing the right to counsel, and the requirement that the state provide effective assistance of counsel. However, when you look at the activity of the lawyer involved, it is clear that he represents an interest that is contrary to the state's real interest, and that is the prosecution and confinement of persons who are convicted of crime. That is the state's interest.
Speaker: But when a psychiatrist in a state hospital examines a defendant who is charged with a crime, he may be performing functions which in the end result are directly contrary to the prosecutor's, the state's right as asserted by the prosecutor to convict him, because the psychiatrist may come out with the conclusion that he is incapable of forming the necessary intent, and therefore in effect not guilty by reason of insanity. Is there any difference between that conflict and the attorney's conflict with the prosecutor in the adversary system?
Norman G. Jesse: Well, that is true in the adversary context, except that the... except that the... it would be very difficult when you have a state institution that without question deprives a person of his liberty and a person functioning within that institution who has the medical relationship between the client, it would be very difficult to say that that person who is directing that institution that confines the person was not engaged in state conduct, and that is not related to the function, the medical function that is being performed by that individual. It has to do with the unquestioned state action of depriving the person of liberty, and the maintenance of that institution, state institution for that purpose.
Speaker: Well, one of the key figures in that process that you have described, denying him his liberty, is the prosecutor, and we extend to the prosecutor an absolute immunity. This goes back to my earlier question to you. In broad social and constitutional terms, how is the defense counsel performing any different function from the prosecutor?
Norman G. Jesse: Well, we would argue that the prosecutor, or that the defense attorney really performs in the broad social sense the same kind of functions--
Speaker: And constitutional sense.
Norman G. Jesse: --and ought to be accorded the same kind of--
Speaker: Also a constitutional sense, under Gideon and Argensinger. Is that not so?
Norman G. Jesse: --Yes. Yes, because he is providing the necessary ingredient of providing the effective assistance of counsel.
Speaker: Each is engaged in administering justice, each with a different role. Is that not so?
Norman G. Jesse: That is correct. The prosecution and the... the prosecutor is involved in the prosecution of persons who are accused of crime, and that is part of the state function that is his responsibility, and the public defender is involved in providing that other essential ingredient for a valid conviction, which is in the state's interest, and that is the effective assistance of counsel.
Speaker: Well, in that respect, the appointed counsel or the retained one doesn't differ, does he, from the public defender?
Norman G. Jesse: No, we would argue that they are not essentially different, and that if, as the Eighth Circuit has ruled in this case, if a public defender whose only real relationship to the state is that he receives his paycheck from the state is amenable to 1983 suits, that a court-appointed attorney would... who performs essentially the same services and is paid from the very same pot of money is paid from the very same levy as the public defender. And as it happens in Polk County, the Board of Supervisors of Polk County have in operation a dual system of providing for counsel. They have the defender advocates program, which is a county program, paid for out of the court fund, and they have a parallel system of court-appointed private attorneys.
Speaker: And they treat them separately, apparently, for purposes of 1983.
Norman G. Jesse: Well, we maintain that you should not treat them separately, but the--
Speaker: I know, but the Court of Appeals would treat them separately.
Norman G. Jesse: --the Court of Appeals would treat them separately. We maintain that there is no essential difference between a court-appointed private attorney who is Paid out of the court fund and a public defender who is paid for out of the court fund. The state is involved in the determination of indigency in both cases, and it is the same... the same determination of what indigency is as it applies to a particular defendant. The court makes the appointment in the one case or in the other, and all the... all the county has done as a practical matter, all the county has done is to organize a group of attorneys into one office, where theoretically they can be provided with better library facilities and better secretarial services, and can be provided an investigator, and the capacity to provide effective assistance of counsel, and rather than paying a higher per hour or higher per unit cost to a private attorney who must provide his own library and his own secretary and his own investigative services.
Speaker: Mr. Jesse, this Court hasn't really decided, though, has it, whether Court-appointed private counsel are said to be acting under color of state law for purposes of Section 1983. The Ferri case really didn't decide that, did it?
Norman G. Jesse: No, it did not, and this Court has not addressed directly that question.
Speaker: Also, how do you get around such cases as Burton versus Wilmington Parking Authority in deciding when the state, and in this case the county, or a county official, or a public defender is acting under color of state law, where a private restaurant was held to be acting under color of state law simply because it had leased the space from the state? That was sufficient. Now, how do you get around cases like that?
Norman G. Jesse: Well, but the state, it was leasing the facility from the state, and the state was involved in a parallel operation with the restaurant owner, and presumably they... both parties benefitted from that relationship. The restaurant operator benefitted from the parking facilities that were available, and the presence of the parking facilities benefitted the restaurant owner by the presence of customers. That is quite a different relationship than the... than the Board of Supervisors has with the offender advocate program in Polk County, and we believe that what you need to look at is the... is the action that is complained about, the action that is complained about, and not--
Speaker: Apply a function test, in other words,--
Norman G. Jesse: --Well, I believe that the Court has already in a sense applied a kind of function test in Branti versus Finkel, where state action was found with respect to the public defenders program, but it was found in the context of the public defender terminating the employment of certain persons who worked for him. Now, that is clearly and unmistakably the exercise of a power that is conferred by the statute. On the other hand, the public defender, the individual public defender, who might be amenable to suit under the Eighth Circuit's theory of this case, does not exercise that power. That person exercises the power that any attorney has, and that power only, and the fact of the creation of the public defender's office does not enhance the powers that are exercised, or enhance the activities that the public... assistant public defender is involved in.
Speaker: --Mr. Jesse, is the prosecutor of Polk County elected?
Norman G. Jesse: Yes, Your Honor, he is.
Speaker: Now, the lawyer is appointed by the court or the supervisors?
Norman G. Jesse: The Board of Supervisors appoints the offender advocate in this case.
Speaker: To each case?
Norman G. Jesse: No, to... no, they appoint the offender advocate, and the offender advocate has several assistants that he appoints. The Board of Supervisors approves their appointments and sets their salary.
Speaker: Well, I come before the judge, and the judge says, I'm going to appoint you a lawyer. Who does he appoint?
Norman G. Jesse: He appoints the offender advocate's office.
Speaker: Office.
Norman G. Jesse: Or, a person from the assigned counsel list.
Speaker: Committed. It is sort of a committee?
Norman G. Jesse: Well, they maintain a list of persons who have agreed to accept appointments.
Speaker: And the supervisors pay him.
Norman G. Jesse: The supervisors pay both.
Speaker: The supervisors pay each lawyer, or the office?
Norman G. Jesse: The supervisors create a budget for the Office of Offender Advocate.
Speaker: And they get paid by the year?
Norman G. Jesse: And they are on annual salaries. They are prohibited from engaging in private... in other private practice.
Speaker: You see, you are now giving me trouble about his individual responsibility to the individual client when he is being paid by the year. That gives me a little problem.
Norman G. Jesse: Well, but if he--
Speaker: Doesn't it give you a little problem?
Norman G. Jesse: --I believe that there is no essential difference. The structure of the offender advocate program is merely a why of collecting together the persons who are providing those services to indigent defendants, hopefully provide them with better facilities, and--
Speaker: Don't you see a difference between the judge saying, I will appoint Lawyer Jones to defend you, and the judge saying, I will give you an office to defend you?
Norman G. Jesse: --But the effect is exactly the same, because Lawyer Jones has to have an office, and the judge is, when he approves that fee, is paying part of his rent and part of his telephone and part of his secretary and part of his library.
Speaker: Well, who does the defendant look to for service, the office or an individual?
Norman G. Jesse: To the individual. Every case is assigned by the offender advocate to an individual lawyer.
Speaker: But not the Court. But the Court does not give him a lawyer.
Norman G. Jesse: The Court does not select from among the lawyers in the Offender Advocate's Office. There are nine lawyers, and the Court does not select. He appoints the offender advocate to be the person, and the offender advocate delegates the responsibility to the--
Speaker: I still have a problem.
Norman G. Jesse: --Well, this presents a public policy argument that... that is involved in the Eighth Circuit's decision, and that is that rather than enhancing the t capability of the county to provide indigent services, provide representation of indigents through the creation of offender advocates programs or public defenders, they will abandon those and go to a total system of assigned counsel on an appointment basis of private attorneys in order to avoid the exposure to 1983 actions.
Speaker: Well, we haven't even decided that, have we?
Norman G. Jesse: You have not yet decided that.
Speaker: Mr. Jesse, may I ask-- --Well, if you decided you were in trouble now, you might be in trouble then, under the other system, too. And isn't it true that if we decide, if we agree with you on the color of law question, that we need not reach the amenity issue at all?
Norman G. Jesse: That's correct, yes.
Speaker: Mr. Jesse, when the District Judge dismissed this complaint, as I understand the papers, he forwarded the papers to the Iowa Supreme Court, to give them an opportunity to hear the appeal on the merits, which counsel thought was without merit. Do you know if the Iowa Supreme Court ever did decide the appeal on the merits?
Norman G. Jesse: I think that the Iowa Supreme Court did not decide the case on the merits. The case was disposed of under Rule 104, which provides for the dismissal of frivolous appeals, and the Court did, pursuant to the motion of Mrs. Shepard, dismiss that case.
Speaker: Then in this case the District Judge says, after everything was done, he forwarded everything to the Chief Justice of the Iowa Supreme Court, and nothing further happened as far as we know, then.
Norman G. Jesse: Not to my knowledge.
Warren E. Burger: Mr. Hudson?
John D. Hudson: Mr. Chief Justice, and may it please the Court, I agree with Justice Marshal that the place to begin the analysis of this case is with an examination of the relevant statute under which the Public Defender's Office was created. In Iowa, we have an Iowa Public Defender Act which is found at Chapter 336(A) of the Iowa Code. Under this particular statute, the county supervisors of a particular county or group of counties if they so choose can decide by resolution to form a Public Defender's Office. The office is created by the supervisors. They determine a budget for the supervisors. They ask the district judges of the county to nominate certain individuals who would be well qualified to serve as a public defender, and the county supervisors select the individual from that particular list. The county supervisors are given the responsibility of defining the term "indigency", which thus gives them the power to decide which individuals will be eligible for representation by the public defender. In addition to this... these responsibilities, it is the responsibility of the public defender to submit an annual report to the Attorney General of the State of Iowa, to the chief judge of the judicial district in which he practices, and also to the county supervisors. The supervisors are given the opportunity of terminating the office at any time that they deem appropriate. It seems clear, and it was acknowledged by the Eighth Circuit that this, the extensive involvement of the local county supervisors in the Public Defender Office means that the public defender himself and his or her assistants become inextricably linked to the political process.
Speaker: Mr. Hudson, is this the ground on which you distinguish, or do you distinguish from the appointed counsel?
John D. Hudson: I do distinguish on this ground.
Speaker: On this ground?
John D. Hudson: Yes, Your Honor.
Speaker: I see, but your submission also is that the appointed counsel, there would be no state action involved?
John D. Hudson: I agree with Mr. Jesse. I believe the case in the Eighth Circuit is Barnes versus Dorsey.
Speaker: Yes.
John D. Hudson: And that particular case presently holds that appointed private counsel does not act under color of law.
Speaker: My question really is, do you agree with that decision?
John D. Hudson: Your Honor, the Court in its last term, in the case of Cuyler versus Sullivan, has placed the holdings of those cases in jeopardy, it seems to me. In that particular case, they state criminal trial was found to be an action by the state, and a privately retained counsel who offered ineffective service to his client in that case was found to be denial of due process.
Speaker: So that issue is still open, you suggest. Well, wasn't the reasoning of the Court there that the prisoner was held by a judgment of the state mandated by the court?
John D. Hudson: In Cuyler, Your Honor?
Speaker: In Cuyler, yes. Not that his particular attorney had performed incompetently. Or that his attorney acted under color of law. Those are different concepts, aren't they?
John D. Hudson: The color of law question was certainly not raised in Cuyler versus Sullivan. The question there was whether or not a privately retained attorney could offer ineffective assistance of counsel to the extent that the trial became a meaningful charade... meaningless charade, and--
Speaker: Yes, and it was held there was sufficient state action to set aside the conviction? Right?
John D. Hudson: --So this Court held, Your Honor.
Speaker: Yes. Well, in any event, Mr. Hudson, you don't have to concede, and you don't, I gather--
John D. Hudson: I do not, Your Honor.
Speaker: --the answer to whether or not the privately appointed counsel involves state action.
John D. Hudson: I would concede that to my knowledge every circuit court has so held, that the--
Speaker: That it does not involve state action.
John D. Hudson: --that it does not involve state action.
Speaker: Well, the holding is that the private attorney doesn't act under color of law, under color of state law. That is the way--
John D. Hudson: The Eighth Circuit has so held, Your Honor.
Speaker: --Yes. It isn't a question of state action.
John D. Hudson: Very well, Your Honor.
Speaker: Well, you have referred to the extensive regulation of the Polk County public defender. Certainly the Iowa bar extensively regulates the members of the Iowa bar, does it not? Even though they might be privately retained to defend a criminal in an action?
John D. Hudson: Well, of course, we are all subject to the same ethical considerations, Your Honor, and we are all subject to the same rules and regulations governing the profession of the practice of law. The regulation that I am talking about that Polk County imposes upon the public defender is, in particular, money. They have the opportunity to define indigency. It is conceivable, at least under the Iowa statute, that they could go so far as to say that indigency shall include anyone who makes less than $30,000 a year, so--
Speaker: Well, doesn't the Iowa bar have the right to define champerty, and maintenance, and all sorts of other things that bar associations traditionally define as violations of canons of ethics?
John D. Hudson: --They do, Your Honor, and each of those regulations would be applicable to a public defender as well. Where I would make the distinction between the hypothetical that you have posed would be the extent that the public domain does exercise control over the public defender. In other words, it becomes involved in the political process through the funding, through the appointment, through the decision on whether or not to keep the office, through the reports that must be made to the supervisors on an annual basis, and et cetera.
Speaker: If we hold that the defense counsel here is subject to the same rules as anybody else, and that he is liable for acting under color of state law, wouldn't we thereafter be obliged to give him the same immunity we give the prosecutor?
John D. Hudson: No, Your Honor.
Speaker: Why not?
John D. Hudson: Why not? That matter has been the subject of great debate in this Court and in many courts of appeal. I would suggest to the Court that the policy considerations were carefully reviewed by this Court in 1979 in the case of Ferri versus Ackerman. As this Court has questioned Mr. Jesse this morning, it was in fact a state malpractice action. However, the Court's inquiry was directed to whether or not Federal law required the imposition of an absolute immunity for a private attorney who was appointed under the Criminal Justice Act. This Court in reviewing the relevant policy considerations determined that the... a defense attorney's function is considerably different from that of a prosecutor or of a judge. I would agree with the Chief Justice's comment that they are part of the three legs of a particular stool upon which justice rests, but the distinction must be that the defense attorney, unlike the judge or the prosecutor, owes his primary allegiance to his particular client. In fact, it is the defense lawyer's obligation to vigorously oppose the actions of the--
Speaker: So that everybody's pocketbook is secure except defense counsel.
John D. Hudson: --Well, that is the point that is made in the dissent in the Eighth Circuit, Your Honor, that an aggrieved defendant will look to the public defender. I don't agree with that particular philosophy.
Speaker: He is not usually the wealthiest man in the county.
John D. Hudson: That is true, Your Honor.
Speaker: Now, if a private attorney representing a criminal defendant on appeal concludes that the case is utterly frivolous, what is his duty? A private attorney now.
John D. Hudson: A private attorney?
Speaker: Yes.
John D. Hudson: We have in Iowa, Your Honor, a rule that is modeled after this Court's decision in Anders versus California. That is Rule 104, which is included in one on of the briefs as an appendix, I believe. That rule, as I read it, is not applicable to the private attorney. My response, I am afraid, would be that the private attorney should not have accepted the case in the beginning, and should have perhaps reviewed the case. The appointed counsel finds himself in a different position, in that he has no choice.
Speaker: Before we come back to the appointed counsel, the private attorney, as you suggested, if he considered it was frivolous, would have the duty, I suppose, first of all to tell the client.
John D. Hudson: Yes, Your Honor.
Speaker: He also has a duty to the court, and what does that duty to the court embrace?
John D. Hudson: The duty to the court, it would be my judgment, would include not pursuing frivolous appeals. If the consent of the client could not be obtained, I would think that an application to withdraw from the case would be the appropriate response to that situation.
Speaker: And why do you think there is a difference?
John D. Hudson: Between the privately retained attorney--
Speaker: Between the privately retained counsel and the public defender, who reaches the same conclusion, that the appeal is utterly frivolous.
John D. Hudson: --I believe this Court in Anders, Your Honor, recognized that there was a similar obligation, and you cannot unilaterally simply dismiss an appeal, or you cannot unilaterally withdraw from the case, but you must follow a procedure that was carefully delineated in Anders. You have to notify the client. You have to brief to the appellate court any issues that are at least arguable on their merits. And--
Speaker: My assumption is that you find no legitimate arguable position. You have a duty to the Court, I would think. You are still a lawyer.
John D. Hudson: --I think you would still have the same duty. Yes, Your Honor. It seems to me the procedures must be somewhat different--
Speaker: Perhaps.
John D. Hudson: --because Rule 104 does not include the hypothetical that you have posed, but still the obligation to the Court not to waste their time would include, it should seem to me, a procedure somewhat like that.
Speaker: If the private attorney, knowing the appeal was frivolous, did nothing, prosecuted it, and then sent the client a bill--
John D. Hudson: The prosecutor, Your Honor?
Speaker: --I am sorry. Pursued the appeal. A private attorney--
John D. Hudson: Yes.
Speaker: --concluded the appeal was frivolous, did not advise his client, went ahead and argued the case, lost it, of course, sent the client a bill. Would that be malpractice?
John D. Hudson: It is shabby lawyering, Your Honor. I don't know if it would be--
Speaker: It sure would.
John D. Hudson: --malpractice.
Speaker: Well, do very many lawyers today, private or otherwise, want to take the risk of not pressing every claim that the defendant wants him to press, and every appeal that the defendant wants pressed?
John D. Hudson: No, Your Honor, they don't. Most lawyers practice somewhat defensively in the criminal law area.
Speaker: They now have to protect their flanks from their own client.
John D. Hudson: That is true, Your Honor.
Speaker: Now, is the prosecutor totally without obligations to the defendant, the accused person?
John D. Hudson: Well, of course, this Court in Brady versus Maryland and other such similar decisions has--
Speaker: Well, apart from that, in the first instance the prosecutor certainly has a professional obligation not to present evidence to a grand jury or to a petit jury later on trial which he does not regard as reliable. That is one of the canons. He has an obligation not to seek indictments against people unless there is a solid basis for it. There are a whole range of obligations, limited, to be sure, compared with the defense counsel, but he is obliged to do certain things which are for the protection of the accused, or the putative accused.
John D. Hudson: --That is true, Your Honor. The same is also true of the defense counsel. There are limited circumstances where the defense counsel has... or at least should perform some act that may well be directly contrary to the best interests of his client. Examples would include when a defense lawyer knows that his client is about to lie on the witness stand. It is his obligation to bring that to the attention of the court. If the defense lawyer knows that a serious crime is about to be committed, it also is imperative upon the lawyer.
Speaker: Well, the defense lawyer who knows or believes his client is about to lie is directed by the standards not to do anything to help him other than letting him take the stand and tell the story in his own words. Isn't that right?
John D. Hudson: Yes, Your Honor, but not to participate in the deception--
Speaker: In any fraud on the part--
John D. Hudson: --not to attempt to elicit testimony from the witness.
Speaker: --Mr. Hudson, in this case, does the complaint allege that the lawyer, Ms. Shepard, did anything other than what a competent lawyer would do?
John D. Hudson: Yes, Your Honor.
Speaker: Other inconclusory language? She apparently filed an Anders brief pursuant to Rule 104, and had the... moved to dismiss the appeal.
John D. Hudson: That is--
Speaker: Is there any allegation in the complaint that the appeal would have had any merit had it not been dismissed?
John D. Hudson: --I believe there is such an allegation.
Speaker: I don't think there is.
John D. Hudson: Well, to say the very minimum, the complaint is inarticulate, Justice Stevens, and it is my--
Speaker: It refers to the Eighth Amendment, but I don't think you would contend there is a violation of the Eighth Amendment alleged.
John D. Hudson: --He uses conclusory language to assert such a violation, but the underlying facts at least that are set forth in this--
Speaker: Isn't it like hundreds I have seen, that the main reason is, he was convicted? And so, the only way he can be convicted was ineffective assistance of counsel. Isn't that what it adds up to?
John D. Hudson: --Well, I am not going to concede that, Your Honor.
Speaker: I have seen hundreds of them.
John D. Hudson: I would state to the Court that because of the procedural posture of this particular case, we know very little about the underlying merits.
Speaker: I see. But if there is merit to the claim that there was a constitutional violation, is not the plaintiff entitled to his release from prison?
John D. Hudson: That would be true as a habeas petition.
Speaker: Isn't it sort of strange to be suing for damages while you don't even challenge in the appropriate forum the conviction that keeps you there?
John D. Hudson: He--
Speaker: I take it there is no challenge, at least not before us.
John D. Hudson: --Not before this Court today. No, Your Honor, there is not. He did include in the pro se complaint that was filed with Judge Vietor a request to be released from prison--
Speaker: To be released, and to have the lawyer disbarred, and the judge said he wouldn't do either of those things.
John D. Hudson: --And the request to be released was treated as an application for habeas, and was denied on the ground that state remedies had not been exhausted, but in direct answer to your question--
Speaker: It seems to me the whole litigation over the quality of his representation is premature before we know whether he is entitled to his release, because if he is not entitled to his release, he has suffered no damages.
John D. Hudson: --Your Honor, the way that the case was procedurally handled, we don't know the merits of the underlying complaint. No hearing was granted in the District Court. You inquired of Mr. Jesse as to the Rule 104 procedure. I don't find a clear answer to that in the record before this Court this morning... this afternoon, and you know, perhaps it is a matter of--
Speaker: Do you think it would be appropriate to have a trial on this complaint without first having a trial on the question, first exhausting remedies and finding out whether the conviction is valid?
John D. Hudson: --It has never been the requirement of this Court since Monroe versus Pape that state remedies be exhausted prior to the prosecution of a Section 1983 complaint, Your Honor.
Speaker: But how could, in a trial like this... Maybe that is true, but there has also never been a trial to my knowledge of a 1983 case against a defense lawyer while the defendant is still sitting in jail. It just seems to me a rather--
John D. Hudson: I believe that is true, Your Honor.
Speaker: --It is a strange order in which to do business.
John D. Hudson: Well, it--
Speaker: Because how would you compute damages if you figure he is still going to be there?
John D. Hudson: --Well, the elements of this particular offense also have not been defined by any lower court, and I don't believe that the elements of this particular segment of Section 1983 are before the Court this afternoon, and so the computation of damages, I would suggest that we rely merely upon tort principles, as this Court has suggested.
Speaker: But it is rather clear that the plaintiff could not recover damages if he is lawfully incarcerated, isn't it?
John D. Hudson: I don't know if that is clear, Your Honor. It would turn again upon relevant principles of tort law. That would go, however, not to the... that would go to the question of damages, and not to the question--
Speaker: But in order for him to prevail on the merits of his complaint, he must prove a constitutional violation, under 1983.
John D. Hudson: --Yes, Your Honor.
Speaker: And if he can prove a constitutional violation, a fortiori, his conviction is invalid.
John D. Hudson: Yes, Your Honor, that would be true. What about the situation, however, where he could prove a constitutional violation that was deemed to be harmless error. Under Section--
Speaker: There are no damages for harmless error. That is perfectly clear.
John D. Hudson: --Under Section 1983, that may well be a compensable injury. We must understand that the questions that you are raising with me right now go to the question of damages.
Speaker: And whether the complaint has alleged a cause of action. I am just wondering whether it is necessary to get into all this state action business when there is a lawsuit that is way, way ahead of schedule.
John D. Hudson: Well, the question before the Court is whether it does state a cause of action, and you make some very valid points, Your Honor, regarding damages, but--
Speaker: But 1983 provides for damages.
John D. Hudson: --It does, and that is the basic purpose, Justice Marshal, of--
Speaker: Well, the district judge perhaps on a proper motion could have dismissed this case on the... for lack of an allegation of the cause of action, because of the lack of a showing that he is improperly incarcerated.
John D. Hudson: --The district judge did dismiss it for failure to state a claim, finding that--
Speaker: Well, is there any reason why the district judge could not act on that? That is the thrust of my question.
John D. Hudson: --For failure to state a--
Speaker: Yes, on the very grounds that have just been under discussion. That he can't make out a case, he can't make out a case until some court has determined that the accused is unconstitutionally confined in a prison.
John D. Hudson: --Well, I would again reiterate my position, Your Honor, that it has never been the rule or the law under Section 1983 that prior state remedies must first be exhausted. The Court is making reference, I believe, to a habeas action in the state courts of Iowa. It has always been the rule since Monroe versus Pape that you can proceed directly to Federal court, and the purpose, in fact, of 1983 is to provide a Federal forum for compensation of injuries.
Speaker: Not if you are attacking... not if you are attacking your custody.
John D. Hudson: We are not attacking the custody. We want compensation for the constitutional violation.
Speaker: What was he sentenced for?
John D. Hudson: Robbery.
Speaker: For how long?
John D. Hudson: Twenty-five years, I believe, Your Honor.
Speaker: So he is still in prison?
John D. Hudson: Yes, sir.
Speaker: And was there an appeal that was never disposed of?
John D. Hudson: There was an appeal which became the subject of this particular lawsuit, and I don't believe the record clearly reflects the disposition of that particular appeal.
Speaker: Well, in the appeal, was the question of adequacy of counsel raised at all?
John D. Hudson: I don't believe that it was, Your Honor, because Mrs. Shepard represented him in that appeal, and she unlikely would raise that.
Speaker: Well, this lawsuit doesn't challenge the adequacy of representation by trial counsel, as I read the complaint. It just challenges adequacy of representation by appellate counsel for filing and Anders brief.
John D. Hudson: That is correct.
Speaker: That is the gist of the lawsuit.
John D. Hudson: And not pursuing the appeal, Justice Stevens, for what Mr. Dodson believed--
Speaker: That's right. He was asking for dismissal under Rule 104--
John D. Hudson: --to be meritorious grounds.
Warren E. Burger: Very well. Mr. Kneedler?
Edwin S. Kneedler: Thank you, Mr. Chief Justice, and may it please the Court, I will address the question whether a public defender employed by a county acts under color of state law within the meaning of 42 United States Code Section 1983, in the course... when he performs his official duties under state law of representing indigent defendants.
Speaker: And what is the United States' interest in this, in arguing that particular question?
Edwin S. Kneedler: This issue is of interest to the United States because the language in Section 1983 referring to color of law, color of statute is the precise language, is parallel to the language in Section 242 of Title 18, which provides criminal sanctions for anyone who willfully subjects a person to the deprivation of constitutional rights while acting under color of law, and this Court has construed the color of law language in Section 242 to be... Given it essentially the same scope as the color of law language in Title... in Section 1983. In this case, the principal conduct complained of by Respondent was the alleged failure of Petitioner Shepard to adequately represent him on appeal of his state conviction. Respondent further alleges that this inadequacy was due to or pursuant to policies adopted by the offender advocate and by... apparently by the Board of Supervisors of Polk County. As described by Mr. Hudson, the county... the Polk County Offender Advocate's office is established pursuant to a state statute that calls for the establishment of county public defenders's offices. In this case, the offender advocate was appointed by the Board of Supervisors, is entirely funded by the Board of Supervisors. It seems clear, then, that the Polk County Offender Advocate's office is an agency of Polk County. Indeed, the chapter of the Iowa Code that authorizes counties to establish offender advocates' offices is entitled county and township government. So, acting pursuant to the state statute, the county has established an office of county government for the purpose of providing function... defense to indigent defendants. Moreover, in this case, the conduct complained of was the inadequacy of Petitioner Shepard's representation of Respondent on appeal. The relevant provisions of the Iowa statute expressly require the public defender, once he is appointed, to represent... to defend and counsel the defendant, and to represent him at all stages of his subsequent post-conviction remedies, including appeal or other remedies. So, in this case the county employee involved, the assistant public defender, was discharging her duties under county ordinance and state law when she filed the Anders brief or the alleged Anders brief that Respondent complains of. It would seem indisputable that a state employee, or the actions of a state employee undertaken in the course of the discharge of her official duties under state law is properly attributable to the state, and therefore would be state action for purposes of the Fourteenth Amendment. Given this, it would seem equally indisputable that those same actions would be taken under color of state law for purposes of Section 1983, which was passed to enforce the restraints on state action imposed by the Fourteenth Amendment. Indeed, this Court in United States versus Price said that in cases under Section 1983, the element of color of law has been treated as the same thing as the state action requirement for purposes of the Fourteenth Amendment.
Speaker: What about Section 242 and a private attorney, privately employed attorney, where it is held that there is state action involved if he misrepresents the... if the state continues to hold a person even though he has been misrepresented by... or badly represented?
Edwin S. Kneedler: My understanding of the rationale of the Court's decision in Cuyler versus Sullivan was that the state action there involved was the fact that the state had deprived the defendant of his liberty pursuant to a judgment which was the culmination of a prosecution initiated by the state, and indeed the Court refers to the act, the state action as being the state's obtaining the conviction, which is tainted by the conduct of counsel.
Speaker: Do you think you have to, to win in this case, you have to show that the conduct of the public defender was pursuant to some rule of the county?
Edwin S. Kneedler: No. No, I do not.
Speaker: You just have to prove that he was an employee of the county? Is that all?
Edwin S. Kneedler: Yes.
Speaker: And just given the general duties of representing indigents?
Edwin S. Kneedler: Yes, and I would like to follow up on that for a moment. The notion, the argument that Petitioners seek to advance is that an exception should be carved out of the state action, or the color of law principle, because of the attorney-client relationship that is entered into between the public defender and the indigent defendant, the notion being that it is somehow antagonistic to the state when the public defender represents the indigent defendant. I think that analysis is incorrect, and of course--
Speaker: Well, would it be incorrect with respect to the privately retained counsel?
Edwin S. Kneedler: --Well, I think that presents quite a different question. I think the reason why that is so--
Speaker: Well, can you just say yes or no?
Edwin S. Kneedler: --Well, we have not taken a position on whether there would be color of state law for anyone in this case, for anyone other than the state employed public defender.
Speaker: You haven't taken a position as to whether Section 242 would be applicable to a privately retained counsel. Is that it?
Edwin S. Kneedler: We have not to date. That issue has not arisen. But I would point out one distinction, I think, that is important in Cuyler, that might suggest... that at least would distinguish it from this case. There are many actions or at least some actions by persons who everyone would concede are acting wholly in a private capacity which could nevertheless render a conviction invalid and unconstitutional, for instance, someone who might attempt to bribe a juror, or prejudicial publicity in a newspaper might render a trial... a conviction invalid under the Constitution because it deprived the defendant his right to a fair trial, but that would not necessarily render the private person acting under color of state law for these purposes. But this case can be decided on a much narrower principle, that the defense counsel here was concededly an employee of the government. What I was referring to earlier is that in a criminal trial, the government has two obligations, or two duties. One is the duty of the prosecution to conduct a fair trial. The second duty that evolves from the Court's decisions in Gideon and with respect to appeals from Anders, is to provide a defense. provide for the Defendant to have a defense made on his behalf.
Speaker: Of course, if you rely on that argument, it would apply to appointed counsel as well as the public--
Edwin S. Kneedler: Not necessarily, because in--
Speaker: --Isn't it true that in your criminal prosecutions that raise a similar issue of lawyers, they have been public defenders who have used their office to get money out of indigent clients?
Edwin S. Kneedler: --That's right.
Speaker: So there is a clear acting under color of state law in a way that is quite different from merely performing the office of lawyer in an incompetent manner.
Edwin S. Kneedler: Well, but in both events, the lawyer is--
Speaker: What I am suggesting is, those decisions are not necessarily implicated by what we do with this case.
Edwin S. Kneedler: --Well, to an extent, I think they... to an extent, I think they are, because the fact, what is being... what is being discussed in this case, for example, is conduct that is at the very core of the person's duties under state law, and the state has imposed those duties, the relevant provisions of Iowa law expressly require as would seem implicit in the creation of the public defender's office, for the public defender to represent the defendant. So, at the same time that he is performing his duty to his client, he is at the same time performing a duty... fulfilling his duty to the state in the creation of the public defender's office, so there is nothing inconsistent in saying that--
Speaker: I assume that if defense counsel gets a man acquitted, that helps the state.
Edwin S. Kneedler: --Yes, the interests of justice are served if--
Speaker: That is not what I said. I said, it helps the state.
Edwin S. Kneedler: --Well--
Speaker: That is the presumption, at least, isn't it?
Edwin S. Kneedler: --Yes, sir, it helps the state in the broadest sense, I would suppose, in seeing that justice is done, but here referring to the state as the government, the state would have been fulfilling its obligation of providing defense counsel.
Speaker: What about on the underlying question here, at least as I see one of the underlying questions? What if a privately retained lawyer for an affluent client did precisely what Ms. Shepard did in this case? Would there be any problems or liabilities or whatever?
Edwin S. Kneedler: Well, I suppose that... of course, this goes to the question of whether there was a constitutional violation rather than whether the counsel had acted under color of state law, but that, I think, would go back to the theory of Anders, whether... the obligation of counsel to file an Anders brief, and that has been... that could either be a due process right, in which case it would apply to private counsel, or an equal protection right ensuring indigent clients the same rights, and in that case it may not. So I think it would depend on one's view of the theory of Anders itself.
Speaker: Well, let's assume, not the... not the precise conduct here, but the defense counsel privately retained by an affluent client, said to his client, you have no case, you can't get anywhere on appeal, and I won't put my name on any appeal except to protect you by filing the notice of appeal, and then I am out, you get yourself another lawyer. Any problem on the underlying question there?
Edwin S. Kneedler: On whether there has been a constitutional violation?
Speaker: On whether there is any liability as between them, laying aside the constitutional question.
Edwin S. Kneedler: Well, I would think that there would be a liability exposure under state malpractice law, depending on--
Speaker: You mean a lawyer can't withdraw from a case?
Edwin S. Kneedler: --Oh, he could withdraw, yes.
Speaker: That is what I meant.
Edwin S. Kneedler: I am sorry. Yes. No, if he withdrew, I would... whether or not the Constitution requires it, it would certainly be proper to follow the same type of procedure as in Anders.
Warren E. Burger: Thank you. You have one minute remaining.
Norman G. Jesse: Mr. Chief Justice, and may it please the Court, the Respondent and the United States, and the United States in particular with concern... with respect to their ability to file Section 242 criminal prosecutions, would have the Court look no further than the kind of instrumentality argument about whether or not the county has established a public defender program, irrespective of what the real actions are, and they point out that... that the Petitioners have not referred to the case of United States versus Classic, but Unites States versus Classic does tell us that the activity that is aimed at in 1983 actions is the misuse of power possessed by virtue of state law and made possible only because the wrongdoer is cloaked with the authority of state law--
Speaker: Well, Classic involved the whole state of Louisiana, didn't it?
Norman G. Jesse: --Yes, but in this particular, what I am suggesting is that we ought to look at the activity, and not merely that it is an instrumentality, because it is the activity that is important, and that activity is not. It's the representation, and that does not depend upon the creation of the public defender, but is the result of being licensed to practice law, as is true of every lawyer.
Warren E. Burger: Thank you, gentlemen. The case is submitted.


Warren E. Burger: We'll hear arguments next in 6587, Herring against New York. Ms. Steele?
Diana A. Steele: Mr. Chief Justice and may it please the Court. The issue on this appeal is whether Section 320.23 (c) of the New York Criminal Procedure Law which authorizes the trial of judge in the non-jury trial to preclude closing arguments, violates the Due Process Clause of the Fourteenth Amendment, and the right to counsel provision of the Sixth Amendment. The Section in issue here is contained in a provision, governing the nature and conduct of the non-jury trial and provides that the court may in its discretion permit the parties to deliver summations. It was passed in 1971 and prior to that date, no statute covered the conduct of the non-jury trial. In this case at the close of all the evidence, the counsel specifically requested to be heard on the facts on behalf of his client and the court invoking the statute, denied his request. Eight minutes later, he delivered the guilty verdict. It's our position that the statute invoked is unconstitutional both by its face and as applied because it deprives the defendant of his due process right to be heard and his right to the effect of assistance of counsel. I think it's basic to our adversary system of criminal justice that defendant has a right to be heard on his own behalf, and that that right is really inseparable from his right to be heard by counsel at every criminal -- at every critical stage of our trial process. I think this tenant is reflected in the historical development and protection of the right to closing arguments by the state courts, and I think it's also reflected in the decisions of this Court since Powell versus Alabama which have held that in certain of counsel's professional functions are inherent in the defendant's right to the guiding hand of counsel.
Warren E. Burger: How long should the summation be allowed Ms. Steele?
Diana A. Steele: Well, I think that the court has discretion to stop closing argument and I think that his discretion is reviewable on appeal. This is the way it's been handled in the jury trial context where the right has been established really since that 1827, it was first to recognized. And I think when the court cuts off closing argument, there maybe a colloquy demonstrating what more counsel wanted to say and wasn't able to say, and I think that that's readily reviewable on appeal. But the absolute preclusion of closing arguments doesn't include any indication of what counsel would have said were he permitted to, and I think that in this case, the statute authorizes that absolute preclusion.
Harry A. Blackmun: Are you saying that there's no right of review under the New York system as a matter of discretion?
Diana A. Steele: Now under the New York statute, an abuse of discretion would be reviewed.
Harry A. Blackmun: It is reviewable?
Diana A. Steele: It is reviewable, yes. But it's my position that there is no situation in which the court can preclude summations all together and have that not constituted an abuse of discretion because it really is depriving the defendant of his right to be heard.
Warren E. Burger: We will resume at that point at 1 o'clock Ms. Steele. [Luncheon Break] Ms. Steele, you may continue.
Diana A. Steele: May it please the Court. I'm picking up where I left off. I think that this statute in question really runs counter, both to the historical development of closing argument by the states, and also counter to this Court's decisions which have recognized at the benefit of certain of counsel's professional skills are inherent in the guiding hand of counsel concept to which a defendant is entitled.
William J. Brennan, Jr.: Ms. Steele, is this statute applied to all arguments in the appellate courts?
Diana A. Steele: No, it does not. It's --
William J. Brennan, Jr.: And it did the difference?
Diana A. Steele: Yes. I think that would be a different situation Mr. Justice Brennan because in the trial -- in the appellate court, you have an opportunity to file a brief. So, you do get to insure that the theory of your case is presented to the decision maker and you can ensure that that everything you want to present to them is presented. But in the trial process, there's really -- there's nothing. The judges left with the disparate pieces of the evidence that the defendant is really left to the mercy of the judge to weigh all the evidence and then hopefully, to draw the inferences that counsel would have urged upon him had he had an opportunity to do so.
William H. Rehnquist: That isn't entirely true here though is it? I mean, Mr. Adams was able to make an opening statement at the beginning of the trial and he argued at the close of the state's evidence, the inferences he thought should be drawn and urging the dismissal of the various counts. It was just at the close of the evidence that he wasn't allow to argue.
Diana A. Steele: It was after -- everything was elicited that he was -- that in effect, the guiding hand of counsel was withdrawn. I think that --
Potter Stewart: There's quite of difference between a trial and an appellate procedure in that at the trial, particularly in a bench trial, there's no questions of law really, the factual issues to be resolved?
Diana A. Steele: Yes, that's right.
Potter Stewart: And just the offset in the appellate process?
Diana A. Steele: Yes. I think that's true.
Potter Stewart: I don't know which way it cuts, but that issue --
Diana A. Steele: Well, the appellate court I think jurisdiction to -- in New York at least can we determine facts, but they don't redetermine them with the same -- with the same standard that the trial court does. They don't redetermine credibility.
Warren E. Burger: They sometimes consider sufficiency of the evidence when its urged it on, do they not?
Diana A. Steele: Yes. They do consider sufficiency of the evidence.
Warren E. Burger: What about the Courts of Appeals? Today they are dispensing with all oral argument on sufficiency of the evidence cases, including cases raising the issue of sufficiency of the evidence?
Diana A. Steele: Well, I think that when you have a brief, I think you're in a different position. I think that you're not as a stronger position to urge the defense because you don't have the give and take that's inherent in that oral presentation. But I think that that you can at lease insure a minimal level of presenting your theory of the case in appellate court, but you really can't do in the trial process unless you were permitted to submit.
William J. Brennan, Jr.: And yet I suppose Ms. Steele at least for some judges, it's easy to hear and put all that listening than they do at reading?
Diana A. Steele: Yes. I think that could --
William J. Brennan, Jr.: -- with that kind of judge you just have in plea?
Diana A. Steele: Well for that kind of judge, yes. I think that you would be in a different position if counsel had a right to submit a written document in support of his position at trial?
William J. Brennan, Jr.: That's why you're here for the statute?
Diana A. Steele: It wouldn't satisfy me, no because I think that in a summation, particularly in a non-jury trial, there is an opportunity for give and take. There's also the rapport between counsel and the judge would put you in the better position I think.
William H. Rehnquist: Well, how much rapport are you going to have it? If the judge says I don't like the hear summation. That's not my custom to hear him and the lawyer says, well the law requires you to hear him, so I'm going to go ahead and give one anyway?[Attempt to Laughter]
Diana A. Steele: Well, I think that that would be something in the judgment of counsel I think that he would -- to judge the effectiveness of his summation in that situation. I think even the most cynical judge may have his mind jarred by counsel's presentation, and may in fact have something pointed up to him. I think it's important in the non-jury trial, particularly to ensure the right to closing argument because I think it's important for the integrity of the fact finding process. A judge makes his decision totally alone in a non-jury trial. Unlike the jury trial where the decision process is collective and I think that the shortcomings of individual jurors are compensated by this process. In the non-jury trial, the judge gets no input at all into his decision making process.
Potter Stewart: Is it -- excuse me.
Warren E. Burger: What if the judge said I have many other things to do. There's a tape recording here, go ahead and make your argument and I'll -- if you will excuse me please?
Diana A. Steele: I think that would put me in a different position. I think that I wouldn't be a deprivation entirely of the right to the guiding hand of counsel, but for the same reason says the written documents I think that you wouldn't have the give and take essentially. I would be comparable I think to the written brief.
Potter Stewart: Is it customary in the New York trial courts to have trial memoranda, some jurisdictions -- some never heard of it.
Diana A. Steele: On issues of law I think it is, but on summations, not on issues of fact I don't believe.
Thurgood Marshall: Ms. Steele, what about the different kind of case. You got a case where the one prosecuting witness and the defendant, that's all there is and the case took a whole day. Would you have to have argument now?
Diana A. Steele: If counsel wanted to be heard, I think he would have a right to be heard on certainly in the jury trial context, regardless of the weight of the evidence, counsel would have a right to present a summation. I think that really to say that he wouldn't be entitled to in that -- to a summation in that sense is to conclusively presume in spite of his thought that he has something to say that he didn't --
Thurgood Marshall: Even assuming that the judge could not remember a whole day, what happened?
Diana A. Steele: I think that there are two --
Thurgood Marshall: If the judge did get that from the lawyer, I think the judge was given this bias attention and let him argue, and I did make a mistake in the word I use, his biased attention.
Diana A. Steele: Well --
Thurgood Marshall: Can you tell the judge he doesn't remember what happened a half hour ago?
Diana A. Steele: Oh, I think that there are two reasons that we must require closing argument in a non-jury trial. One is to insure that the judge will have an accurate presentation of the facts and will remember accurately.
Thurgood Marshall: But he's not taking notes?
Diana A. Steele: Yes Your Honor, but --
Thurgood Marshall: Doesn't he have to make findings? Doesn't the judge have to make --
Diana A. Steele: No. Unlike the federal non-jury trial, in New York where counsel can request findings of fact in conclusion of the law, in New York, they don't have that rule. They’re --
Thurgood Marshall: But the rule, but he can request it?
Diana A. Steele: He can request that, but there is no assurance that he would get it.
Thurgood Marshall: But suppose he got it, then would he still have to have argue it?
Diana A. Steele: Yes, I think that he would because while findings of facts in conclusion of law protect the accuracy of the judge's memory because it ensures that he goes over the evidence, there's also another basis for requiring closing argument, and that is --
Thurgood Marshall: It was a lawyer himself, you know, he can --
Diana A. Steele: Yes Your Honor, but I --
Thurgood Marshall: He can't remember like a lawyer, that's a tried in the case, can he?
Diana A. Steele: Yes, but I think it's critical that the defense get its --
Thurgood Marshall: But he shouldn't have the biased opinion of the lawyer?
Diana A. Steele: Well, I think that another prong of this argument is that the defendant is entitled to have his theory presented to have --
Thurgood Marshall: His theory is that he wasn't there. He's already testified as to his theory. In my hypothetical, he's testified.
Diana A. Steele: Yes, he has but I think that the defendant is entitled to have his attorney draw the inferences, favorable to the defense on that evidence. I mean that's what counsel is therefore to present the defense side of the case, and in cross-examination, he may have elicited things that without emphasis because he didn't want to emphasize things that were damaging to the prosecution. And in closing argument, counsel then can draw those inferences and really present the defense theory to the fact finder.
Thurgood Marshall: Judge says “It's a very simple case and I don't you see why you need to argue” and the lawyer says “But I insist on arguing. ” And you insist that he has that right and I submit as a lawyer who's tried a few cases that that's not going to help the defendant at all?
Diana A. Steele: That maybe true Mr. Justice Marshall, but I think that counsel is entitled to make the decision that this will not help the defendant at all and waive closing argument. I think that that's a decision which counsel must be entitled to make because even --
Thurgood Marshall: If the judge says “I don't want any closing argument” and counsel said “But I insist you have closing argument. ” You think counsel will have that right to cut his own throat?
Diana A. Steele: Yes, I do.
Thurgood Marshall: -- along with his client's throat?
Diana A. Steele: Yes. I think that that's counsel should be entitled to make that decision. But I think that you assume that counsel is making perhaps the wrong decision, but I think the decision and presenting that defense theory must rest with counsel and not with the court. I think that -- well particularly in our urban courts where the case load pressure is very high, judges do become cynical. They maybe inattentive for any number of reasons, and I think that in those situations, closing argument can easily be dispensed with precisely when it shouldn’t because our trial process is based on the assumption that a verdict will be rendered upon a fair evaluation of the evidence.
William H. Rehnquist: Mr. Adams really didn't press his point very much, it strikes me from reading page 92 of the transcript. He says “Well, can I be heard somewhat on the facts? ” And then the judge says “Under the new statute, summation is discretionary, and I choose not to hear summations. ” That he didn't go on and say “Well, even if you don't want to hear summations, I insist I have a right to make one. ” He seems to kind of accept the judge's determination.
Diana A. Steele: Well, under the New York statute, the judge did have the discretion, and I think there wasn't too much more for counsel to say. He did request to be heard and when the statute was invoked, he was denied the right and then the defendant was remanded right after that.
Harry A. Blackmun: He made his record?
Diana A. Steele: I think he did make his record, yes Your Honor.
Harry A. Blackmun: Could I go back to while this maybe repetitious and the Chief Justice may have asked it, but if there is a right to summation, is there a right to a minimum time to summarize?
Diana A. Steele: I think to that would vary on a case-to-case basis. I think that it is within the court's discretion to limit summation, to cut-off summation, and that would be subject to review to see if the right had been infringed. In the context of jury trial summations, that's the way it has been handled in the various states. I think that of all those the cases in the footnote on page 14 of my brief, all but four of them arose in the improper infringement of the right when -- I think that it's readily reviewable because when the court tries to cut counsel off, counsel can presumably say “Well, but I didn't present this theory” and I think that the appellate court can go back and look and see if there was an infringement.
Harry A. Blackmun: So, there is a standard of discretionary review then, so long as there is some time granted, but not --
Diana A. Steele: Yes, that's right because I think in the very different position when the court has said “I've heard enough” from when the court says “I don't want to hear anything.”
William H. Rehnquist: Of course, he'd been listening to counsel for several days in this case?
Diana A. Steele: Yes. In fact, he had been listening over -- to approximately three days that was spread over a five-day period, the weekend intervened, and I think you can fairly well presume that the judge did attend to other matters aside from this case.
William H. Rehnquist: But what you're saying is that even though a judge is satisfied from hearing counsel over this period of time that counsel couldn't materially assist him in reaching a just decision on the facts, nonetheless, he's got to hear him?
Diana A. Steele: I think that it is counsel's decision at the end of the evidence to consider whether he can assist the fact finder, whether his theory of the defense has been presented adequately to ensure that the judge will consider all the evidence. I think that that's counsel's decision. I think that -- I think that this Court's decision in Brooks versus Tennessee and in Ferguson versus Georgia point strongly to this effect because in -- well in Brooks, the Court struck down the Tennessee statute which required the defendant to be the first witness or loss his right to testify. And there, the Court said that this was so critical to the defense that it had to be left to counsel's decision whether and when to put his client on the stand. Even more on point, I think is Ferguson versus Georgia where the Court struck down the Georgia statute which precluded counsel from eliciting from the defendant his unsworn statement to the jury because in Georgia at that time, the defendant was incompetent to testify and so, he gave a unsworn statement. And the Court there held that it was inherent really in the concept of the guiding hand of counsel to ensure that facts favorable to the defense were elicited in an orderly, coherence, and logical fashion. I think that that function is precisely what comes into play in summation. Counsel must in summation, deliver to the fact finder, the defense theory, he organizes it, he present it cogently because that's what he's been trained to do.
William J. Brennan, Jr.: Ms. Steele, I gather from your reply brief that it is a non-jury misdemeanor type of trial to which this statute applies?
Diana A. Steele: An identical statute applies to it, yes.
William J. Brennan, Jr.: Yes, another but same kind of statute?
Diana A. Steele: Yes.
William J. Brennan, Jr.: But tell me in this case, there was of course a waiver of jury trial, was there not?
Diana A. Steele: Yes. There was a waiver.
William J. Brennan, Jr.: Now, the state argues that that waiver of jury trial because this statute was on the books at the time when the waiver subsumed, and I gather you could waive jury trial without the assistance counsel, can't you in New York?
Diana A. Steele: Yes, I believe you can.
William J. Brennan, Jr.: And that this waiver subsumes also where the discretion is exercised against a summation, a waiver of the right to some of it?
Diana A. Steele: Yes, that is --
William J. Brennan, Jr.: What do you say to that?
Diana A. Steele: -- the state's position. I think that that argument has a no merit on --
William J. Brennan, Jr.: Why?
Diana A. Steele: Because I think that it's putting in impermissible condition on appellant's statutory right to forgo a jury. I think that the argument -
William J. Brennan, Jr.: But what -- how is that a constitutional argument? All we can deal with here, the federal constitutional limitation. Is that a constitutional burden?
Diana A. Steele: Well, yes. I think it is because it's requiring him to forgo his right to summation when he goes non-jury. I think the analogous cases would be Green versus United States and North Carolina versus Pearce where the defendant was exercising a statutory right to appeal, and he was -- in North Carolina versus Pearce, he was penalized.
William J. Brennan, Jr.: Are there cases we've had are burden on the constitutional right to jury trial?
Potter Stewart: Jackson? United States against Jackson involving the Limberg case --
Diana A. Steele: Yes, yes. Now --
Byron R. White: It's a burden on your state rights, it's a burden on your state rights the way. I mean, you can -- if you want to sum up, you go ahead and have your jury trial.
Diana A. Steele: Yes, but I -- well, as in North Carolina versus Pearce and in Green versus United States, that was the statutory right to appeal and yet, the Court didn't permit penalizing someone for electing to exercise that statutory right. Here, he's elected to forgo with jury, and he's being penalized by --
Byron R. White: For what the statute on its face that you may waive the jury trial if you also -- if you also waive the right to summation?
Diana A. Steele: Well, if you assume that these two can be tied in together --
Byron R. White: Well, suppose the statute had said on its face, “you may waive the jury trial if you waive the right to summation, but not otherwise?”
Diana A. Steele: I think it would still be an impermissible condition.
William J. Brennan, Jr.: You'd be here attacking the statute on its face?
Diana A. Steele: Yes.
Byron R. White: You mean, you have -- that the constitutional right to waive the jury trial, or you tell there is?
Diana A. Steele: No. I don't think there is a constitutional right to waive the jury trial, no. But I don't think that the state can place a condition which requires him to forgo a totally independent constitutional right. The right to summation has no relation to the right to forgo a jury.
Byron R. White: At least, I suppose you would say the first person has the right to the argue --
Diana A. Steele: Yes.
Byron R. White: -- that you have the right to say I never -- I never -- I have the right to claim that this was unconstitutional. I never waived it. I've read it and I knew it was unconstitutional. Why certainly the complaint that I -- no, no, to claim my right, even if I loss, I should be able to you'll hope be on the ground to waiver.
Diana A. Steele: No. I think the waiver argument doesn't have any merit. I don't think that there's any legitimate state purpose in requiring the penalty of foregoing a jury trial. I think that the New York statute concerning the reasonable procedural regulations going to waiving the jury trial adequately preserves the state's interest on insisting in jury trials. The only other conceivable interest that this would further would be speed and I don't think that the state has any legitimate state interest in making the non-jury trial, any speedier than it already is than the jury trial.
Harry A. Blackmun: Ms. Steele, is this the only kind of case in the New York system where a statute provides for absence of a right to summarize? On the civil side, there is right to summarize, is there a statutory right?
Diana A. Steele: I do not know in the civil cases in New York --
Potter Stewart: I thought your brief for summary in the briefs it said so.
Diana A. Steele: Well, I think that two states have held that the right in the non-jury trial is absolute in the civil context. In the civil jury trial, I believe that there's no question but you have a right to closing argument.
Harry A. Blackmun: But there were a statute from the civil side similar to the one under attack here. Would your case be any different? Or are you here because it's only --
Diana A. Steele: I'm here because I think that this is a deprivation of a criminal defendant's right to counsel, and his due process right to be heard on the evidence. I think I would be in the different posture were this a civil case.
Byron R. White: Are there any of the cases in other states or federal courts that agree with the decision at all?
Diana A. Steele: Yes. I believe that the weight of authority holds that there is a right to closing argument. Excuse me.
Byron R. White: Are the cases that are against you, other cases that are against you?
Diana A. Steele: Yes Your Honor. There are four jurisdictions that are against me.
William J. Brennan, Jr.: How close is that division?
Diana A. Steele: There are nine jurisdictions that are hold that it is a fundamental right.
William J. Brennan, Jr.: On constitutional grounds?
Diana A. Steele: On constitutional grounds. There are two more states in pre-Gideon decisions that use their state constitutional guarantees of counsel. And there are four jurisdictions which have refused to recognize the right. In one of the --
William J. Brennan, Jr.: And holding, it is not a constitutional right?
Diana A. Steele: Yes. They've refused to recognize it. One did it without opinion, I think. Another said that it was the better practice to hear summation, and another was in the juvenile context. I think in closing, I would simply like to reiterate that I think that the statute is really contrary to the historical development in preservation of the right to closing argument. I think it really deprives the defendant of the benefit of counsel's professional skill which I think this Court recognized in Brooks and in Ferguson. And finally, I think that is the right to closing argument, particularly in the non-jury trial is essential to the integrity of the fact finding process, where that fact finder is a single individual. He's presumably fallible just like anybody else, and he may well be in an overburden court. I think that those are the three basic reasons why a statute which deprives appellant of that right is violative of the Due Process Clause of the Fourteenth Amendment and the counsel provision of the Sixth. Thank you.
Warren E. Burger: Very well Ms. Steele. Mr. Morse?
Norman C. Morse: Mr. Chief Justice and the Court -- may it please the Court. It's obvious that the facts in this case did not require the trial judge to exercise any great retentive ability. It seems to me that there were issues. One was the issue of alibi which turned the course upon the testimony of the defendant. The other issue was the -- and his employer who was I would say vague and evasive in his testimony as to when he saw him and so forth. The other question I suppose would be bias, bias on the part of the complaining witness who said it happened to him and bias on part of the defendant seeking to avoid any consequences of his act. It would appear to me that the factual determinations in this case were simple and were of the kind that the authors of the statute had in mind when they drew the statute that a judge seeing the facts openly and plainly without any abuse of discretion could say “I choose not to hear. ” And --
Harry A. Blackmun: Mr. Morse, assure me as to one thing. I think opposing counsel indicated that the case was reviewable in the state structure on a basis of abuse of discretion, but do you agree to that that there is no non-reviewable absolute right to do away with summation?
Norman C. Morse: There is -- this question was reviewable in the state court, that's correct.
Potter Stewart: And on the statute as my brother Blackmun suggests in his question, I suppose that the standard would be whether or not the trial judge abused his discretion in cutting off --
Norman C. Morse: That is correct.
Potter Stewart: That would be --
Norman C. Morse: -- that is reviewable.
Potter Stewart: But that would be the standard of review.
Norman C. Morse: That's right.
Potter Stewart: Not whether -- and that's rather as he goes now of rather strict standard.
Norman C. Morse: Now, --
Potter Stewart: Is that correct that the standard would be whether or not there was an abuse of discretion --
Norman C. Morse: An abuse of discretion in this instance and had this been a protracted trial, involve issues, perhaps that you could say that it had been an abuse of discretion, but it was not a protracted trial. The people knew each other and the issues raised as I say were biased on the one hand which seemed to be absolutely ephemeral and alibi which was vague, they were resolved against the defendant. Now, it seems to me here that if there's a right of summation in this instance because of some kind of historical basis, it would seem to me that that right of summation would have to carry over into any fact finding process if we're to distinguish as to substance and not as to form. For example, we're now regularly besieged with the procedures on identification suppression, and so forth, voluntariness of confessions. If in each instance, not only is there a right to the hearing, but there's a right to sum up on the fact finding question, I think we can see that the overworked urban courts to which my dedicated adversary makes reference would be even more so if at the end of that fact finding process, there was an insistences a matter of right, I have a right to analyze, sum up, distinguish the most obvious of facts. So that I feel in this case therefore that we should not have to arrive at that conclusion. We have I think a substantial waiver, a substantial case for waiver here. It would appear to me that since, they had to be on record, they were placed on the record as to the rights that they were surrendering in accepting a non-jury trial. These were spelled out I think by the trial judge which commendable detail that they selected that route, and if you will, made no comment whatsoever that I'm doing this, but remember Your Honor, I still want my right of summation.
Thurgood Marshall: Did the judge tell him?
Norman C. Morse: There was no comment made one way or another with respect to summation. And of course, they --
Thurgood Marshall: That's an intelligent waiver?
Norman C. Morse: I say that's an intelligent waiver. It's held to be an intelligent waiver in the federal system. For example, if a waiver of indictment is had, I don't think that it's incumbent upon anyone to say to a defendant that when you waive indictment in the federal system and that -- by doing so, you waive your right to appear before the grand jury, you waive that possibility that the grand jury may not indict you. All of the consequences of these things when a man is represented by an attorney, I think are fairly presumed to be known to him, else what his attorney for. Now, it does seem to me Your Honors that the Singer against the United States has determined this matter in which it says that there -- in which the Court said that there is no federally recognized right to a criminal trial before a judge sitting alone. And if the State of New York has set up a reasonable non-jury procedure, that that is a non-jury procedure which this defendant or this appellant elected to proceed to trial by. He has a right to waive many rights. He has a right to obviously to stipulate as to testimony. He has a right to testify and with that, face the burden of being examined as to prior criminal activity which could never be introduced otherwise. But he does this -- when he does this, he does this with the assumption on the part of the Court that he does it with a full knowledge of what he surrendering, and I say that that same reasoning applies here. Your Honor, may I reserve the balance of my time for reply.
Warren E. Burger: No. your colleague is going to join you now? He's going to follow you?
Norman C. Morse: Yes.
Warren E. Burger: Alright. Mr. Levy?
Gabriel I. Levy: Thank you Your Honor. I want to thank the Court for the kind indulgence in accepting our brief quite like. On behalf of the Attorney General of the State of New York Your Honor, the only question here is whether or not there's a federally protected right to sum up in a non-jury case. New York -- whether the right exist in the jury case and not New York recognizes that right, there’s a unconditional right in New York to sum up in a jury case. There's a constitutional right to trial by jury. There is no constitutional right to trial without a jury under the United States Constitution. The right is granted by the New York state constitution, but you can't engraft on into the federal constitution a state constitutional right of that as I believe Mr. Justice White pointed out in Laigus against Kumi. I would point out that this Court has specifically pointed out that there is no such constitutional right to trial without a jury under the federal constitution, and I believe that the court's, state's courts rules that may provide for a non-jury trial and as pointed out in Singer, there maybe reasonable, procedural requirements tied in with that waiver. Now, if we start from the premise that there is no federal constitutional right to sum up in a non-jury case, we don't' even have to reach the fact whether or not there is a knowing waiver under New York law. And I might point out that this question of abuse of discretion was never raised in the state courts. If it had been raised in the state courts, it would have and could have been considered by the state appellate courts as to whether or not the judge properly refused to take summation. This was a very simply case. It was very carefully considered. It considered by the Court even as pointed out by defendant's counsel, very copious notes were taken and it's right in the record. At the end of the People's case, the charge of the Class D felony of possession of a dangerous instrument, that was dismissed at the end of the People's case. What was left for the judge to decide was whether he was guilty of attempted robbery in the first degree which is a Class B felony which subject him to a 25 years imprisonment, or a Class D felony third degree -- attempted robbery in the third degree which only would have subjected him to seven years. True it only took the judge eight minutes to decide, he found him not guilty on the most serious crime and found him guilty on the lesser crime. So, there certainly was very careful consideration and what summation would add in a non-jury case, especially in the facts here, what right was he deprived off? I think this is very similar to the right of allocution which was considered by this Court in Hill against the United States, 368 U.S. 424 in 1962, where this Court held that the failure of the court to permit the defendant to be heard prior to sentencing in and off itself was an error which was neither jurisdictional or constitutional. And certainly, whether or not the court permits summation in a non-jury case, it does not taking away a constitutional right from him. We're not dealing with the jury here who are lame and do not understand the various nuances. We're dealing with a professional trier of the facts of one of Your Honors pointed out in questioning before, I believe it was Justice Marshall. The judges are lawyer. We're not dealing here with complicated facts. We're dealing here with very simple things. And what would be -- there might be some gain on the part of a judge listening to summation, but there's no constitutional right being taken away because no constitutional right exist in the first instance. And furthermore in New York, a defendant who does waive trial by jury also may waive his unconditional right to sum up. If that right of summation is such that he considers it so valuable and that the facts of the case are such that require summation, all he has to do is insist on his constitutional right to trial by jury. And we submit that there is no federal constitutional right to sum up in the first instance in a non-jury case. and if such fact, and if such right should exist which we do not concede, the fact that the New York statute makes it discretionary as to whether or not to permit summation, the waiver -- inherent in the waiver of trail by jury is also a waiver of the unconditional right to sum up in a non-jury case.
Byron R. White: I take it there are cases that disagree with you?
Gabriel I. Levy: Yes. I believe there are some cases in various states which --
Byron R. White: Would you disagree with your colleague as to what the division is among the states on this question?
Gabriel I. Levy: No. I have gone through the cases and I would concede that I think the weight of authority --
Byron R. White: Is against you.
Gabriel I. Levy: Is against us, both pre and post and --
William J. Brennan, Jr.: And on what federal constitutional ground are those concerned?
Gabriel I. Levy: They just talk about the Due Process Clause Mr. Justice Brennan. They don't --
William J. Brennan, Jr.: Not the Sixth Amendment?
Gabriel I. Levy: No. They don't talk about the Sixth Amendment as such, and I'm talking on a general overview.
William J. Brennan, Jr.: Because it's even before, we extended the Sixth to the states to sum up --
Gabriel I. Levy: Well, to settle this, I'm thinking of the Florida case which was pre-Gideon and I believe, that was decided in --
William J. Brennan, Jr.: Finally in cut?
Gabriel I. Levy: 19 -- it was 1956, Boyd against State, that was decided, yes, in 195 -- no, I take it back. They specifically, they did mention a right to counsel. In the Boyd case, in -- I believe it was the Fifth Circuit, yes. The Fifth Circuit, this was a 1968 involving a Federal Juvenile Delinquency Act held that there was no constitutional right to sum up at least under the Federal Juvenile Delinquency Act, and that of course was non-jury situation. Of course, we have to be reminded that with respect to this case, we're dealing with a very, very limited situation. New York is the only state in the United States with such a statute, which sets up the right to -- the order of trial in a non-jury case. It's specifically vests in the trial court a discretion as to whether or not to permit summing up only in a non-jury case. It gives an unconditional right to sum up in a jury case.
Byron R. White: How about civil cases, is there -- will be --
Gabriel I. Levy: I know of no statute Judge White which provides for summing up in a civil case as such in New York.
Harry A. Blackmun: But nevertheless, do you have the right?
Gabriel I. Levy: By custom of usage. If by nothing else Justice Blackmun, you have the right by custom in usage at least in a jury case. As a matter of practice in New York, there's very little summing up in a non-jury civil case because that's usually handled on a brief type situation, by the way, which is also available in a non-jury criminal case, a very often, I would say very often but when there are sophisticated questions, the judge, it doesn't have to decide. There's no immediacy to decide a criminal case, and he can request briefs on both the law and the facts.
William H. Rehnquist: Of course, there you need a transcript don't you if you're going to brief the facts?
Gabriel I. Levy: By law in New York, there must be a transcript prepared, taken down in every case. Any indigent defendant in New York may get an immediate copy of the transcript.
William H. Rehnquist: You mean a daily --
Gabriel I. Levy: No, no, no, no, no. I think you misunderstand me justice. If the court would require or request a brief on the facts on and the law, there would be no problem for the court to direct the court reporter to furnish a copy of the transcript to both the District Attorney and the defendant.
William H. Rehnquist: But sometime when he lapse?
Gabriel I. Levy: Several days, depending -- I would assume -
William H. Rehnquist: From a court reporter, you could get a transcript in several days?
Gabriel I. Levy: This was only a 90-page transcript Your Honor. I mean of course, if you're dealing with a longer transcript, of course it would take longer. But it's the out story where there's a will, there's a way.
William H. Rehnquist: How does this suggestion for briefing on the factual issues in a non-jury criminal case usually come about? Is it at the request of one of the defendant or of the people or is it at the request of the judge?
Gabriel I. Levy: I'm just talking about on a hypothetical question. Ordinarily, very often if the defendant or the people would request the court if it would like briefs. And as a rule, I think the court usually decline because judge -- at least Justice Barlow, the judges in New York and particularly Justice Barlow did take very, very copious notes with respect to this case.
William H. Rehnquist: And that's when it freshest in the judge's mind is right after --
Gabriel I. Levy: That's correct.
Warren E. Burger: As I recall it on Monday, he modified if not reversed ruling on evidence that he made on Friday. Is that not correct?
Gabriel I. Levy: That's correct Your Honor. It just happens is that Justice Barlow was one of the more eminent and outstanding judges in New York and I think the proof is in the putting in the facts in this case. He found them -- he dismissed one charge, found him not guilty on the most serious charge, and found him guilty on the least of all the charges, and I think there was very careful consideration. And obviously, I don't know what summation could have gained the defendant. The defendant here as Justice Marshall previously pointed out, if you insisted on the defendant notwithstanding the requirements that the New York statute, and the judge says all right, go ahead as Justice Marshall said, you would still have basically a bias listener and what good is having a bias listener? And with respect having oral argument on every factual and substantive question, we run into the situation all the time as -- and I believe Justice Stewart --
Thurgood Marshall: You keep saying about all. This is only the final end of the trial we're talking about. We talk about suppression of evidence,
Gabriel I. Levy: That's correct.
Thurgood Marshall: Confession, why are you bringing those up?
Gabriel I. Levy: I'm not.
Thurgood Marshall: Ah.
Gabriel I. Levy: I'm not bringing those up Justice Marshall.
Thurgood Marshall: You promise?
Gabriel I. Levy: I promise.
Thurgood Marshall: Okay.
Gabriel I. Levy: And basically, there is no fundamental federally protected constitutional right to sum up in a non-jury case, and the entire argument of the appellants here is that such right exists. And as I said before, they never raised in the state courts the fact that the defendant, that the trial judge abused his discretion in refusing to grant summation in this particular case.
Warren E. Burger: Thank you Mr. Levy. Do you have anything further Ms. Steele?
Diana A. Steele: No.
Warren E. Burger: Very well, the case is submitted.