Adrian G. Duplantier: (Inaudible) by the grand jury in 1950. He was not informed of the indictment against him. He was not arrested on the alleged crime until October of 1952. The time had proscribed -- long proscribed when he was arrested and brought to the jurisdiction, the court of Louisiana jurisdiction. That was a year and seven months. The time had expired already when he was placed in the Parish Prison. When he was placed in the Parish prison, the case was set for arraignment for October 25th. He was brought down the 3rd of October. He was set for the 25th of October, 1952 and I was retained the afternoon of the 24th. So, on the morning of the 25th, on arraignment, I went to Court. And I asked the Court for a continuance of the arraignment for the purpose of allowing me to file pleadings in the case. On -- the Court granted me until November 7, 1952 to file those pleadings. On November the 7th, 1952, we appeared in Court and we filed our motion to quash the indictment. The -- when we filed the motion to quash the indictment, the State asked for a continuance. And the Court granted them until November 17th to their continuance to answer of filing the pleadings in answer to my motion to quash. On November -- on November 17th, 1952, the State filed its demurrer to my motion to quash claiming that the -- the motion was filed too late. Now, the only difference between my case and the case of Michel and Labat is that my client Poret wasn't even arrested. He didn't have counsel at the time that -- the time limit expired. He had three days after March the 5th, 1951. That is until March the 8th. He had until March the 8th, 1951, to file his motion to quash under Article 202 of the Code of Criminal Procedure. That the man was not arrested.
Speaker: (Inaudible)
Adrian G. Duplantier: Well, he was out of the jurisdiction of the Court. That's -- that's correct, sir. Yes, sir. He was in a penitentiary in Tennessee during the part of that time. And the State of Louisiana attempted to get him back from the penitentiary of Tennessee. And the State of Tennessee refused the extradition and said that he would have to stay there until he served his time.
Speaker: (Inaudible)
Adrian G. Duplantier: What's that, sir?
Speaker: Labat is -- Labat was correct?
Adrian G. Duplantier: Labat was tried with correct judgments.
Speaker: (Inaudible)
Adrian G. Duplantier: I filed a motion for a severance and the district attorney took the witness stand and said that he was not going to use a confession. I filed my motion on the ground that Labat had committed -- confessed. And he had involved Poret in his confession. That was the basis to my motion for a severance. And when the district attorney took the witness stand and said he was not going to use a confession in the trial of the case, there was no need for a motion for a severance because that was the basis of my motion, was that they were going to use confession of Labat.
Tom C. Clark: That fact might be possible (Inaudible)
Adrian G. Duplantier: Actually -- actually sir, I would say yes. But the case against Labat was fixed for trial two or three times before Poret's incarceration or his arrest. The case was fixed for trial. I think at one time, according to the record, while Poret was in the penitentiary in Tennessee. And it was continued one time by the State I believe and one time by the defense, if that answers Justice Clark's question. But in this case, in Poret's case, he had no opportunity, whatsoever, to file his motion to quash before the time limit expired. Under our jurisdiction, the purpose of an arraignment is to inform the accused of what he is being tried for. That's the purpose of the arraignment. Is to inform him of the case and the nature of the charges against him. So, that I say that in the case of Poret that he was denied due process of law. This much, as the time limit had expired a long time, a year and seven months before he was ever brought to the jurisdiction of Louisiana. And surely while he was in the penitentiary in Tennessee, he couldn't obtain counsel to defend the case in Louisiana.
Tom C. Clark: Does the record show particular circumstances of which Poret asked Louisiana? I've read the opinion of the Court.
Adrian G. Duplantier: Yes, sir.
Tom C. Clark: I understand what they say is there.
Adrian G. Duplantier: No, it -- the -- the only thing I know, sir is this that they look for Poret and couldn't find him, that's all that's in the record.
Tom C. Clark: He was -- does the record show that he was known immediately?
Adrian G. Duplantier: I think that the -- I think that the sheriff testified that he looked for Poret two days after the alleged crime was -- alleged to have been committed. I think that's what the record discloses.
Tom C. Clark: From the word fugitive from (Inaudible) case --
Adrian G. Duplantier: That he was a fugitive --
Tom C. Clark: -- that he was a fugitive from justice? Yes.
Adrian G. Duplantier: Yes, sir. The State urged that he lost his rights because he was a fugitive from justice.
Tom C. Clark: He was alleged (Inaudible)
Adrian G. Duplantier: No, sir. We didn't -- we didn't put Poret.
Earl Warren: Did the State offer a proof as to how he left and why he left?
Adrian G. Duplantier: No, sir, no, sir. The State offered no proof any further than the show that sheriff went to Poret's mother's home where Poret was supposed to have lived. And that upon inquiries, he was told that Poret was not there. He went back a second time looking for Poret and was told again that Poret was not there and that they hadn't seen Poret. But the State offered no evidence, whatsoever, to show why Poret if he left -- left the jurisdiction all of that the city in New Orleans. They showed -- didn't show a -- there's no scintilla of evidence to show why he left.
Hugo L. Black: Are indictments in Louisiana secret?
Adrian G. Duplantier: Indictments are not secret sir. They are brought in by the grand jury they filed in Court.
Hugo L. Black: Even when they have not been arrested?
Adrian G. Duplantier: Even when they haven't been arrested. They're filed in the clerk's office in the -- in the Criminal Code.
Hugo L. Black: Now, that somebody has notified Poret?
Adrian G. Duplantier: The defendant is -- we call it capias. It's warrant under the common law. It's a warrant of arrest. When the indictment is brought in by the grand jury, it's recorded in the Court. And a warrant of arrest or a capias issues for the -- for the arrest of the individual who is indicted.
Hugo L. Black: When was the warrant of arrest served on Poret?
Adrian G. Duplantier: It was attempted to be served --
Hugo L. Black: When was it served?
Adrian G. Duplantier: It was never served, except in the penitentiary in Tennessee.
Hugo L. Black: How long was that after the time that it expired with the one -- within which he could filed the motion?
Adrian G. Duplantier: One year -- one year and the seven months after the time expired for him to file his motion under Article 202. That the facts are in on page 3 and 4 of my brief. We set --
Tom C. Clark: But when was Labat arrested?
Adrian G. Duplantier: What's that sir?
Tom C. Clark: Labat was arrested almost immediately.
Adrian G. Duplantier: Almost immediately, the day after --
Tom C. Clark: What was the order -- he gets arrested before his indictment?
Adrian G. Duplantier: Oh yes, yes. He was arrested by the police. I think it was the day after the alleged offense. But you -- you -- the -- you see --
Tom C. Clark: The record -- the record show why they arrested Labat or --
Adrian G. Duplantier: They arrested Labat, I understand on -- on this crime.
Tom C. Clark: Yes I know but --
Adrian G. Duplantier: Yes.
Tom C. Clark: -- because he was identified by the victim?
Adrian G. Duplantier: Now that he was identified later by the victim not before his arrest -- not before his arrest. I believe he was identified. His name was brought in by another witness, but not by the prosecuting witness until after he was arrested.
Stanley Reed: Also that Poret by the same witness?
Adrian G. Duplantier: What's that?
Stanley Reed: Also Poret by the same witness?
Adrian G. Duplantier: No sir. I had -- no, Poret was not brought into the case by the --
Stanley Reed: That's why it doesn't show in the -- it doesn't -- doesn't show --
Adrian G. Duplantier: That's right.
Stanley Reed: -- how they have to suspect Poret?
Adrian G. Duplantier: No, in the record doesn't show it because that is where I found my motion for a severance. In other words, --
Earl Warren: A confession of Labat --
Adrian G. Duplantier: The confession of Labat implicated Poret. And that's how the authorities were looking for Poret.
Stanley Reed: Well, is it before or after the arrest of Labat?
Adrian G. Duplantier: That's -- that's something I couldn't answer sir. It was --
Stanley Reed: How did that show?
Adrian G. Duplantier: The record doesn't show that at all and I -- I don't have knowledge of that fact at all.
Tom C. Clark: You don't know why it's --
Adrian G. Duplantier: No sir, the only thing that I got into the case was when he was brought back from the penitentiary from Tennessee and that wasn't until October. Well, he was brought back on October the 3rd, 1952. And I entered the case on October the 25th, 1952. So in --
Tom C. Clark: (Inaudible)
Adrian G. Duplantier: That's something I don't know either Mr. Justice -- the Court -- I know that the -- it was not -- he was there nine months. He -- he had nine months more to serve in his term in -- in Tennessee when the State of Louisiana issued extradition for him to be retuned. In other words, it was nine months before his time in the penitentiary was up in Tennessee. They issued extradition. And the authorities of Tennessee, the Governor refused extradition and said that Louisiana would have to wait until he finished his time in the -- the Tennessee penitentiary before they'd let come back. And when he finished that, they sent him back or that was Louisiana setup and --
Tom C. Clark: What is the -- and he didn't asked before the expiration of the time (Inaudible)
Adrian G. Duplantier: Yes, extradition or no extradition, the time limit had expired.
Tom C. Clark: Already?
Adrian G. Duplantier: Already before they asked extradition in this case. You see, his time limit expired in -- in March the 8th, 1951. And the State didn't know that he was in the penitentiary in Tennessee until long after March the 8th, 1951. It was sometime later in 1951 that they've discovered it. It's in the record of Mr. Raul (Inaudible) who wrote letters to the authorities in the -- in the State of Tennessee. And he also testified as to when that was done. That is in the record in the Poret case. He was the --
Harold Burton: (Voice Overlap) --
Adrian G. Duplantier: Yes, sir.
Harold Burton: Under the statute in the Wilson case he had until March 8, 1951, is that it?
Adrian G. Duplantier: That's correct, sir.
Harold Burton: Now, is that your contention because he didn't know about it that therefore he gets extra time
Adrian G. Duplantier: Well, not because he didn't know about it, but because he didn't have any opportunity to file a motion to quash. And he had no -- he didn't have counsel to advice him to file.
Harold Burton: Do you -- do you take the same position whether he was within the State or outside of the State? (Voice Overlap) --
Adrian G. Duplantier: Well, no. And I say -- I say this that under the Wilson case, if he was in the State, if he was -- if he was informed to this indictment against him --
Harold Burton: No, I mean he's up in the hills and doesn't hear about it?
Adrian G. Duplantier: Yes, sir. Well, I say that -- that he couldn't have possibly had filed his motion to quash if he wasn't there and he didn't know anything about this.
Harold Burton: Well does -- does everybody who stays away in the hills therefore get -- get extra time, but if they -- if they stay downtown they don't?
Adrian G. Duplantier: Well sir, this is the first -- this is the first case in which the -- this particular point has arisen. (Voice Overlap) --
Harold Burton: How much time was he given?
Adrian G. Duplantier: What's that sir?
Harold Burton: How much time would you give him, three days after he gets back, or what?
Adrian G. Duplantier: Well, I'd say that as -- as soon after the -- he gets back as the Court of the District of Tennessee see in our jurisdiction that if the Court doesn't fix the cases, the district attorney fixes the cases and he fixes the arraignments for trial. The Court doesn't control their fixing of cases. The district attorney fixes the case for trial and he fixes the arraignments also for a hearing. And as soon as the district attorney fixed it for arraignment is when we came in and asked for a continuance so that we could file the pleas and -- and the judge also who was the (Inaudible) in the Court granted me until November the 7th.
Tom C. Clark: But on what statute or what Court decision do you base your computation of the -- of the extra time?Is there any authority for that or just that he should have reasonable time?
Adrian G. Duplantier: No, sir. There is no -- I have no authority. There's no statute for him to have extra time. The law is silent on it. But I take their position that unless the defendant is informed of an indictment, there's no possible way for him to know. You just -- people just don't go down in the court house when the grand jury returns and indictment comes with returns of indictment to see if there's any indictment return against them. The ordinary procedure is that when the indictment is returned, a warrant of arrest issues and that informs that warrant of arrest, informs the defendant as to the crime for which he is to stand trial. And if that is done, then I say that he, under the Wilson case he would have until the third judicial day after the grand jury time.
Tom C. Clark: But if on your theory, it -- it does take all of the sharpness out of the Wilson case not and the statute. I mean, it just varies with the information getting to the -- to the accused person. If Mr. Schreiber's man hadn't -- hadn't heard about it why he wouldn't be -- he wouldn't have any (Voice Overlap) --
Adrian G. Duplantier: Or Mr. Schreiber's man -- Mr. Schreiber's man had not been -- been arrested.
Tom C. Clark: Yes.
Adrian G. Duplantier: I would say yes. In other words, an individual to be charged with the laxity would have to know something of the -- of the crime that he's going to be charge with. Here, you have a man that's -- that's out of the jurisdiction of the Court entirely. You discover him out of the jurisdiction. When you do discover him --
Tom C. Clark: Would that not make your rule then if the -- if he -- he must answer within the term of the grand jury or three days thereafter or such later time as he hears about it?
Adrian G. Duplantier: Well, I'd -- I would say that -- that we have Article 285 of the Code of Criminal Procedure that if the time has expired for him to file his motion to quash that he he'd -- he would have up until the arraignment to file his motion to quash. You see, we have several articles pertaining to motions to quash time limits. In answer to your question sir, if the grand jury that indicted -- indict him under the -- the reading of the of the statute, we'll say that three judicial days of the time which would be the first three days of the grand jury time. If the grand jury indicted the individual on the fifth to sixth day of the time, obviously, if the crime was committed after that, after that third day had expired, obviously, we wouldn't have an opportunity to file his motion to quash.
Tom C. Clark: (Inaudible)
Adrian G. Duplantier: Last three days. Now, there is another article of our Code which is article 285 which also says that, if his case goes to trial sooner than that time, he should file his motion to quash before arraignment. In other words, they don't indict a person in Louisiana and then wait until the grand jury goes out of session and three days after that before the file. It's very possible that the man could be indicted on March the 1st, 1951. The grand jury goes out of office on the 8th and his trial would come up before the time limit expired. It could be set for the 6th of March or the 5th of -- before the 8th day of March could be set. Now then, he would file his motion to quash before arraignment or at arraignment.
Tom C. Clark: So, that's merely in interest of orderly trial of the case so that the --
Adrian G. Duplantier: That's correct sir.
Tom C. Clark: (Inaudible) out of the way before he's post the merits?
Adrian G. Duplantier: That's correct, sir. That's to keeping him from after going to trial file his motion to quash afterwards of doing the trial of the case. That's what Article 285 is designed for. But I say that in the -- in Poret case, that he was denied due process of law for the simple reason that he -- he had no knowledge. He had no -- he couldn't have filed it within the --
Tom C. Clark: Why did you put in on the basis that you had no knowledge?
Adrian G. Duplantier: Well, --
Tom C. Clark: (Inaudible)
Adrian G. Duplantier: -- just from the records.
Tom C. Clark: (Inaudible) with which anything has ever held that a man must be to the charge of (Inaudible) before his arrested?
Adrian G. Duplantier: No sir, I don't know.
Tom C. Clark: Do you know of any -- any other State that this is the rule had been held because a man pleads he can be penalized in his defense although he could be prosecuted in court and convicted for pleading (Inaudible) Do you know of any answer in which in the State held for inference the he could be deprived of setting up an appeal except (Inaudible) on the ground that he hadn't filed it while he was pleading?
Adrian G. Duplantier: No sir, I don't know of any.
Earl Warren: Well, take --
Tom C. Clark: Or that he had -- he has any -- couldn't plead not guilty unless he filed -- unless he pleaded not guilty while he was pleading?
Adrian G. Duplantier: No sir, I don't know of any sir.
Tom C. Clark: Why did you put it on the basis of knowledge. I would suppose that he has the right to be notified at the time will include the right of that procedure or had to be informed of it under the Constitution to have some concern on it would include the right to file your defenses at that time, whatever they are. And we're not just talking about shifting it on the basis of whether --
Adrian G. Duplantier: Well, I mean --
Tom C. Clark: (Voice Overlap) -- seek the information outside, the fact he's not arrested.
Adrian G. Duplantier: That is the point. If he would -- if he is denied because he's not in jurisdiction, the right to file a motion to quash --
Tom C. Clark: Of course, he's not in a jury. What does that help?
Adrian G. Duplantier: Well, that he -- he wouldn't know about it.
Tom C. Clark: I would suppose your defense if you had any would be to help the man that hasn't been arrested. He hasn't -- that he's not charged with the crime, informs him by arrest. And yet they say is, before he's arrested, he's already waived the defense on a constitutional ground.
Adrian G. Duplantier: That's correct. That is exactly what we -- what we contend in this case, sir. And I say this that to -- to deprive him of that right would be the same to defy him on the right of arraignment or the right if he had filed by a jury.
Tom C. Clark: What defense does he have? If -- if it could be done on this, why couldn't it be done on self-defense?
Adrian G. Duplantier: Self-defense, it could be done just the same.
Tom C. Clark: Unless the jury provided that he has to file a plea of self-defense and its reasonable time which can be done.
Adrian G. Duplantier: Yes, sir.
Tom C. Clark: And then, that he's not arrested. And he doesn't file it within that number of days or that number of months. And the Court comes along and said, "Well, you can't file that plea of self-defense. You have pled.
Adrian G. Duplantier: That -- that's exactly my position.
Hugo L. Black: You can try him, but you can't set up your defense.
Adrian G. Duplantier: You can't set up any defense of self-defense.
Harold Burton: That was in the case --
Hugo L. Black: That many times --
Harold Burton: --(Voice Overlap) -- that the man never could be tried, but in this case, you could be re-indicted.
Adrian G. Duplantier: What's that, sir? I didn't get you.
Harold Burton: I say any case which you've just recited to Justice Black, man never could be into tried. But in -- in the case we have here, the man could be re-indicted.
Adrian G. Duplantier: Yes, he could.
Harold Burton: That's to a different situation.
Adrian G. Duplantier: That's correct, sir. Yes, sir. So --
Hugo L. Black: But he would be cut off of his constitutional defense, wouldn't he?
Adrian G. Duplantier: You cite he would be cut-off from his constitutional --
Hugo L. Black: Because he didn't plead his constitutional defense --
Adrian G. Duplantier: That's --
Hugo L. Black: -- before he was arrested.
Adrian G. Duplantier: That's right, sir. That's correct. That's what it amounts to. That's what it amounts to in the Poret case. And we submit and as far as Clifton Poret is concerned that he was denied his constitutional rights n that he was denied the right to even challenge the grand jury panel and the venire.
Earl Warren: Mr. Duplantier.
Adrian G. Duplantier: Thank you, Your Honor?
Earl Warren: Would it -- would it be consistent with your argument Mr. Duplantier to address yourself to this last case first?
Adrian G. Duplantier: Yes, sir. I'll -- I'll be glad to do that.
Earl Warren: Because --
Adrian G. Duplantier: I was -- I was going to answer two points before I address myself to that --
Earl Warren: All right.
Adrian G. Duplantier: -- if the Court pleases. One point that Mr. Justice -- Mr. Justice Frankfurter raised earlier about the question of why this man wasn't tried for so long and I think Mr. Justice Clark, has given the same answer which I would. And I don't mean to -- to explain the delay or excuse it. We were not in the office at the time. I don't really know. But I do know that the trial was continued on two occasions and that about a year before the trial was held. And about at the time of the last continuance or a little while before that they were notified. The state was that this man would be available, the codefendant for prosecution in Louisiana, within a reasonable time after that last continuance. And apparently the decision was made then that it was better to wait a few more months than to try, to try the two of them separately. So that that's --
Earl Warren: Is -- is there any statute in your State requiring a man to be tried within a given number of days and yet it's according --
Adrian G. Duplantier: No, sir. And it's -- it's a problem which we --
Earl Warren: (Voice Overlap) --
Adrian G. Duplantier: -- which we constantly fight. Which we're aware of and which we are working to (Inaudible) we -- we are working very hard at. There's no statute that I know of. We do have a constitutional provision that a defendant can insist upon a speedy trial. And he has the right to file a motion to go trial himself because as Mr. Justice Frankfurter pointed out, good teachers of criminal law teach that every day of delay is beneficial to the defendant.
Felix Frankfurter: (Inaudible)
Adrian G. Duplantier: Well, I meant good district attorney.
Felix Frankfurter: Yes.
Adrian G. Duplantier: He's a good former of district attorney, excuse me, Mr. Justice. The second point that -- that Mr. Justice Frankfurter raised and I -- and I can well agree that I too would be concerned if these were a singling out of a particular defendant, that the State had decided, well, now we're going -- we're going to use 202 in this case and we never have used it before, but we're going to use it. I'd like state to the Court that in the 18 months during which we have prosecuted in the New Orleans, there hasn't been a single instance in which a motion to quash was filed after the delay provided in Article 202. So that certainly, for the last 18 months, it's safe to say that no counsel has allowed the time of three days beyond the grand jury term to expire without filing these motions. And there have been some of them filed. But there has not been one single instance where they have been filed too late. And I think that's important because I think it shows that in the great many cases, these things are filed timely and that the reason why there's not more jurisprudence in -- in Louisiana Supreme Court, on 202, is that there are only few cases in which counsel have not filed these things timely. Now, with respect to defendant Poret in his claim that this Article 202 --
William O. Douglas: I didn't quite get what you've said that only that these (Inaudible)
Adrian G. Duplantier: My point was, Mr. Justice, that in 18 months that I can state to the Court my own experience, there hasn't been a single instance in which defense counsel has allowed the time provided in 202 to expire.
Speaker: (Inaudible)
Adrian G. Duplantier: So, that there wasn't a single opportunity for the State to file a demurrer based on Article 202. And I -- and I suggest --
Speaker: (Inaudible)
Adrian G. Duplantier: -- that that situation may very --
Hugo L. Black: Are there many of those files?
Adrian G. Duplantier: I would say that there are certainly three that I know of.
Hugo L. Black: We have three here.
Adrian G. Duplantier: No, I mean since the last 18 months which is what I was suggesting here, sir.
Felix Frankfurter: (Inaudible)
Adrian G. Duplantier: These are much earlier. Yes, sir. And I --
Speaker: And all of that.
Adrian G. Duplantier: -- and I suggest that the fact that there are only a few file too late in the last 18 months, probably accounts for the lack of -- of a few of them being filed prior to that. Counsel filed them timely. Hence, there's no reason for motion to demur, for a demurrer by the State. And, of course, all counsel don't file it at all. So, that is --
Felix Frankfurter: So, they can -- everything, whatever desirable to inform on the activities when I get to be able to inform the administration within six months.
Adrian G. Duplantier: [Laughs]
Felix Frankfurter: I don't quite see how any of these former district attorneys could affect this file. So, I wonder. And maybe I'm wrong about it.
Adrian G. Duplantier: Could do what Mr. --
Felix Frankfurter: That they could attribute to a new administration the fact that counsel had been timely at end (Voice Overlap) --
Adrian G. Duplantier: No, sir. I didn't mean to attribute --
Felix Frankfurter: I didn't mean to just as you did. I -- to be very careful not to -- with respect to your comment to your administration. And I'm wondering why there should have been a change by the situation --
Adrian G. Duplantier: No, sir.
Felix Frankfurter: (Inaudible) differences before the --
Adrian G. Duplantier: No, sir. As a matter of fact, I suggest to the Court that it wasn't different.
Felix Frankfurter: All right.
Adrian G. Duplantier: And that is why this is the case in which this is raised. And that's my answer to the suggestion that we're singling out this man here for following a demurrer. That the --
Felix Frankfurter: (Inaudible)
Adrian G. Duplantier: Yes, sir.
Felix Frankfurter: So, I was wondering whether if that was in the record in your (Inaudible) Is there any particular reason why it shouldn't -- why a different situation should be revealed in the theory of the proceeding?
Adrian G. Duplantier: I don't think that those --
Felix Frankfurter: That I merely suggest that that's not the opinion of this Court and the virtue that your office has.
Adrian G. Duplantier: No, sir. And we don't claim any.
Felix Frankfurter: [Laughs]
Adrian G. Duplantier: But my -- my point is that lack of these things in the last 18 months means that there probably weren't many before it. Hence, no demurrers. Hence no 202. Now, with respect to Poret's claim that this -- this is a non-constitutional application of Article 202 because he was not in the jurisdiction because he wasn't notified because he wasn't arrested. I suggest to the Court, first of all, that the record at leaves no room for doubt that Poret was a fugitive. There are -- there's a -- there's ample evidence in the record that not only the -- the criminal sheriff who was our counterpart (Inaudible), not only that office, but the police department made constant and persistent efforts to locate this man. There's a return of the deputy sheriff indicating that he had been told. I think that's in the record if I'm not mistaken. That he had been told by this man's relatives that he had left the day after this crime was committed. There is additional evidence which is not in this record in the lower court upon which the state court made its finding both the District Court and the Supreme Court that Poret was a fugitive. Now, this wasn't made without any opportunity to Poret to prove to the Court that he was not in fact a fugitive, but that it was in good faith in leaving the jurisdiction. There was a hearing held at which the defense had a right to present any evidence that it wanted to on the question of whether or not he was a fugitive. And unless my recollection is wrong, Poret presented no evidence, not his own anyone else's. And all of the evidence presented by the State indicated that he was in fact a fugitive from justice.
William J. Brennan, Jr.: Just in Tennessee on -- on the -- that these evidence came up.
Adrian G. Duplantier: Was he in Tennessee at the time?
William J. Brennan, Jr.: Was it in Tennessee that he gave (Inaudible)
Adrian G. Duplantier: No, sir. This was in a hearing in the Criminal District Court in Orleans Parish on the -- on the demurrer of the State because he raised the point, you can't apply this to me. I didn't know anything about him. The Court went into the question of whether he was not a fugitive. And made a finding that he was based upon ample record.
Earl Warren: What was the proof -- what was the proof of being a fugitive?
Adrian G. Duplantier: The proof is that -- that the sheriff's office made several attempts almost immediately after this crime to locate him at a place where he was known to have lived. He wasn't there. The return of the sheriff is with an advice that he left. He left yesterday. This was a day after the crime. And the police department and the district attorney's office testified, we tried to find this man. We did everything we could. He was nowhere to be located. Now, this is a native of New Orleans. He turns up at the Tennessee penitentiary. And I suggest to the Court if the State absent to defend in his own testimony could never do any better than that than to show that here's a man who's living in this jurisdiction until the date that he commits a crime. He leaves the next day. We tried to find him consistently. We can't locate him and he turns up in the penitentiary in Tennessee. And I -- and I suggest that that's ample evidence that he was in fact a fugitive, especially, when you consider that he introduced nothing at all to rebut that. Makes no serious argument before the Supreme Court of Louisiana that he wasn't a fugitive. None in his brief here. No evidence of it.
Tom C. Clark: The Court found (Inaudible)
Adrian G. Duplantier: Yes, sir. The District Court found and gave him a hearing on the question. We're not going to file this 202. Apparently, the District Court wouldn't have applied if he had -- had he been in good faith in being absent. We're not going to apply it said the District Court until we hear evidence on the question of whether or not you're a fugitive. So that --
Earl Warren: Do you -- do you conceive that the validity of your position depends upon whether he was a fugitive or not?
Adrian G. Duplantier: I don't know that I'm prepared to concede that, I don't know that that I'm given a lot of thought to it Mr. Justice --
Earl Warren: Suppose --
Adrian G. Duplantier: -- Warren --
Earl Warren: -- suppose --
Adrian G. Duplantier: -- because I think that --
Earl Warren: Suppose he didn't know. Suppose he -- he was away for some other reason. He didn't know about the indictment against him. Would your -- would you still maintain your present position?
Adrian G. Duplantier: I frankly don't know. I frankly don't know and the reason I say that is that I -- I think that record here as it's presented to this Court positively shows that he's a fugitive. And I -- I frankly don't know what my position would be. I don't know what this --
Felix Frankfurter: (Voice Overlap) -- he's just indicated -- he's just indicated that the Court (Inaudible)
Adrian G. Duplantier: I had said that Court -- I don't know, of course, what the Court would have done, but I said that the Court apparently wanted to know whether he was a fugitive because it took evidence on the point at District Court. And, of course, the Supreme Court found him to be a fugitive. Supreme Court of Louisiana did and bases its conclusion that 202 runs even in the absence of an arrest because he was a fugitive. That I can state to the Court definitely. That was the basis for the Supreme Court of Louisiana's finding here that 202 did run against it.
Hugo L. Black: (Inaudible) support the state statute that accomplished the same result by providing that any man indicted for rape or murder, who flees from this jurisdiction knowing that there is an indictment against him stays away for a year shall not be permitted to plead or file any charge that the grand jury that indicted him was formed in violation of the Constitution of the United States. Do you think that would be a valid law?
Adrian G. Duplantier: That -- yes, I do. I do.
Hugo L. Black: That you'd have to take that?
Adrian G. Duplantier: Yes, sir. And I say that 202 as -- as interpreted --
Hugo L. Black: It is not --
Adrian G. Duplantier: -- by the Supreme Court of Louisiana says exactly that.
Hugo L. Black: It accomplishes that result.
Adrian G. Duplantier: Yes, sir. It does. And I -- and I suggest that the basis for the validity of that position is that Louisiana has a valid interest in seeing to it that these things are filed early in the proceedings, not necessarily, in relation to the proceedings against this defendant but with respect to the grand jury.
Hugo L. Black: What --
Adrian G. Duplantier: And as the Court pointed out in Wilson, the concern of Louisiana is that we are going to have to justify this grand jury. And therefore we have a right to insist that this plea may be made early.
Hugo L. Black: You wouldn't say that, of course, if they had provided that the man who pled should be deprived of the opportunity to plead self defense?
Adrian G. Duplantier: I think the difference, Mr. Justice Black, is that Louisiana has no valid interest in denying a man the right to plead self defense because he's been a fugitive, --
Hugo L. Black: That's because --
Adrian G. Duplantier: -- or because the mere passage of time. Whereas we have a valid interest in depriving him of that right to attack our grand jury which we have to justify.
Hugo L. Black: You draw a distinction --
Adrian G. Duplantier: Yes, sir.
Hugo L. Black: -- on the attempts on the merit.
Adrian G. Duplantier: Yes, sir. I certainly do.
Hugo L. Black: And the defense that the grand jury had (Voice Overlap) --
Adrian G. Duplantier: I do. Yes, sir. And I think another distinction is that he has no -- he has no constitutional right to a grand jury as such as he would to the plea of self defense or whatever other plea that he might have in the trial of the case on the merits.
Hugo L. Black: Well, it's what -- the same thing would apply if I would ask you the question if he's going to be tried by a judge. And it was provided that any man who, I suppose, any man who plead knowing that he was charged by for the crime that he waived the privilege of telling him to apply some prejudice of the judge.
Adrian G. Duplantier: I don't think my answer would be the same. No, sir because --
Hugo L. Black: But that would be different because they have (Voice Overlap) --
Adrian G. Duplantier: Yes, sir. Because we have no valid interest in -- in making him raise a prejudice of a judge at a -- at an -- at a date when a judge is still there to testify that he's not biased.
Hugo L. Black: But there's another difference that he put --
Adrian G. Duplantier: Yes, sir.
Hugo L. Black: -- one of them is that he would be tried by this judge (Inaudible)
Adrian G. Duplantier: Yes, sir. And this is an indictment surely.
Hugo L. Black: And the other is that it's an indictment --
Adrian G. Duplantier: Yes, sir.
Hugo L. Black: -- or whatever that (Inaudible)
Adrian G. Duplantier: Yes, sir. But over and above that, I think that if you examine the -- the rationale of the Wilson decision that where the Court goes into, why we have 202. And remember, Mr. Justice Black, the 202 does not apply only to grand jury. The attacks on grand jury is based on federal grounds. Our grand jurors have to read and write. They have to be a citizen of the State. There are many, many other qualifications. And if you can do this thing two years later, the State is simply not going to be able to justify the panel of its grand jury. And if the defendant as the Supreme Court of Louisiana pointed out can extend this time simply by fleeing, if he's a -- if he's a good fleer, he can -- he can extend it to the point that we could never justify the grand jury.
Felix Frankfurter: Do you think that the -- the problem should have been discussed had any illumination at all on that little theory. And that in any illuminations from the decision of this Court which are (Inaudible) that a State can be put on the defendant the burden of proving his sanity in (Inaudible) on the extent of which a State is to be allowed to control its criminal procedure?
Adrian G. Duplantier: I think this that it indicates the length to which this Court will go to protect the State's right to regulate its criminal procedure given a valid interest which I say we have here and which is exhibited by the Wilson case. And which I think has made a point about Wilson. Now, --
Earl Warren: That's a different theory. I -- I suppose in New Orleans Police Department like most police departments of large cities have clearly hundreds and maybe thousands of warrants of arrest that they have not searched for one reason or another. And would you say that in all those cases that the rights of the defendants are -- are running their rights to avail themselves of the full procedure set up by Louisiana are running now even though they -- they have not been arrested and brought under the jurisdiction of the Court?
Adrian G. Duplantier: I would answer that this way, Mr. Chief Justice. I don't believe that, in first place, in New Orleans we have ten warrants of arrest resulting from grand jury indictments where they have not arrested defendants. And I would answer you further that in --
Earl Warren: (Inaudible)
Adrian G. Duplantier: -- whatever cases we do have, those people are fugitives. And it's been well established that they are. The police departments are being debauched everyday for it. And I say that if we prove they're fugitives, very definitely their time has ran.
Earl Warren: Well, that's -- that's the most unusual and the most efficient police department --
Adrian G. Duplantier: Well --
Earl Warren: -- that it doesn't have hundreds and thousands even of -- of warrants somewhere in -- in the police.
Adrian G. Duplantier: Let me not mislead, Your Honor.
Earl Warren: (Inaudible)
Adrian G. Duplantier: Let me not.
Earl Warren: (Inaudible) experince -- (Voice Overlap)
Adrian G. Duplantier: -- let me not mislead, Your Honor. I'm talking about warrants resulting from grand jury indictments.
Earl Warren: (Voice Overlap) --
Adrian G. Duplantier: Now, we filed -- we filed those of information in all felonies other than grand -- other than capital cases. And I say resulting from grand jury indictments where 202 would be applicable I should think that there are less than 10. And maybe less than half a dozen capital cases where defendants are not arrested. And I say in all of those cases, the State could and would prove that those people are fugitives. And they usually turn up in penitentiaries in other States.
Earl Warren: Well, how many indictments does your grand jury return in a year?
Adrian G. Duplantier: A -- a rough guess would -- I should think this would be right within 10%. No, in a year, 75.
Earl Warren: 75 what?
Adrian G. Duplantier: Capital indictments.
Earl Warren: For whatever kind of indictment?
Adrian G. Duplantier: No, that was total indictments I would -- it's between 50 and 75, I would say.
Earl Warren: Between 50 and 75?
Adrian G. Duplantier: No, not that many. Mr. Hubert thinks 30. I've never -- I've never made a count.
Earl Warren: Up to 30 in a year?
Adrian G. Duplantier: I -- I frankly think it's --
Earl Warren: (Inaudible)
Adrian G. Duplantier: -- it's more than that. But --
Earl Warren: Don't mention it.
Adrian G. Duplantier: certainly in capital cases, we have very few on or books that have not been arrested, very few.
Tom C. Clark: Those all are capital, the 30?
Adrian G. Duplantier: Yes, sir. What I -- I would say that our grand jury doesn't indict in other than capital cases, (Inaudible) indictments in a year other than capital cases.
Tom C. Clark: The police serves -- does the police (Inaudible)
Adrian G. Duplantier: Yes and no. The police -- the police serves -- doesn't actually, the police found and served the process but they'll pick him up and bring him to the sheriff and he serves. But the sheriff serves him also. I mean the police department is out looking for people if that's -- if that's what Your Honor driving definitely.
Tom C. Clark: (Inaudible)
Adrian G. Duplantier: I think technically, that's correct in -- in Louisiana.
Tom C. Clark: (Inaudible)
Adrian G. Duplantier: Yes. That's correct in Louisiana, technically, but I think it's practical now that the police department has most of it.
Tom C. Clark: But we can put or obtain on that with the police but maybe the -- detain this man behind the process?
Earl Warren: I would -- I would like -- just one more question and I hope not to bother you anymore during your argument. But suppose a man was indicted on the last day of the term. And for some reason or other whether it was the inactivity of the sheriff or activity on the part of the -- the person who is accused or whatever it might be, for some reason or other, a warrant was not served for four days. Then the defendant was arrested and brought into court, would it be incumbent upon him to establish that he had not been trying to avoid arrest during those three to four days in order to be -- to have available to him, a motion to quash the indictment for the reasons that you're here now.
Adrian G. Duplantier: I would say no that it would --
Earl Warren: No.
Adrian G. Duplantier: -- be incumbent upon the State to prove that he's -- he was a fugitive. I might add one other thing. And I'm just, of course.guessing more or less what the Supreme Court of Louisiana would do. But I -- I guess it because of what Mr. Hubert has characterized this meticulous concern for federal rights and they have evidenced it. That in the Michel case, the Court indicated that had it found no appointment of counsel on March 2nd that they --that they may have reached a different result because they recognized, of course, the federal right to counsel. This Court has held that a man's entitled to counsel. And in this case, the Supreme Court goes into the question of whether he is a fugitive as of indicating to me that they may reach a different result if the proof is different on the question of fugitive here. If he's not a fugitive, the Court might reach a different result.
Earl Warren: Well is there any statute in -- in Louisiana that specifically says that a man shall lose any rights while he is avoiding arrest?
Adrian G. Duplantier: No. But I think that -- that I can -- I can bridge that gap for this. That 202 makes no exceptions. 202 says that if you don't file it within three days that is the end. And the State is not here claiming that we are reading into 202 something which makes it apply to a fugitive. 202 on its face applies to everyone. This defendant is here asking and asked the Louisiana Supreme Court to read into 202 an exception with respect to fugitives which Louisiana Supreme Court refused to do and I suggest probably so.
Earl Warren: Well, we'd have to do that with the man who wasn't arrested for four days would he leave. He was to have the opportunity to -- to make such a motion?
Adrian G. Duplantier: I would answer that the same way that I think the Louisiana Supreme Court indicated by its very finding that that this man was a fugitive. That if a situation is presented, where a man has not himself contributed to this thing, that they would reach a different result. Yes, sir. I -- I would answer that the same way.
Earl Warren: If he just locked himself up in his house and -- and refused to admit anyone. Then and that it went on for three or four days and until the fourth day after the grand jury was adjourned, you would think that he could be deprived of his right to make such a motion.
Adrian G. Duplantier: Well, if -- if his locking prevented an arrest, I think that's correct. And I suggest that it is.
Earl Warren: I just want to know --
Adrian G. Duplantier: I think that it ought to be. I'd like to -- to pass from this point of whether he's a fugitive which I think is amply -- amply justified to the second point which the Supreme Court of Louisiana passed upon. On this particular question, I'd like to read from page 21 of our brief. It's just short and it will take a minute. In answer to Poret's objection, you can't apply 202 to me because he says, “I don't know anything about this indictment and therefore, it's unconstitutional to file against me.” “It's not true,” says the Supreme Court." And I think the reasoning is -- is very fine. That the defendant Poret was denied an opportunity to file his motion timely. He was indicted on December 11, 1950, had until March 8, 1951, a period of almost three months in which to file his motion to quash. Now, why -- why didn't he file it? His own actions to avoid for prosecution caused him not to avail himself for the right to challenge the jury. This is a choice which he exercised, says the Supreme Court. During this time, he could have filed a motion. He was a fugitive by his own choice and will. If we concede that his flight made it impossible for him to file a motion timely, he himself knew about the situation which made it impossible. To our minds, it would be improper to hold that the prescriptive period provided on the statute is applicable to the accused held under arrest within the jurisdiction of the Court, but is not applicable to the accused, who of his own will, the Court has absconded to avoid prosecution. Such a holding would be tantamount to rewarding the absconding person for his right. Moreover, the article provides for prescriptive theory which runs against the accused and he can't by any acts of his own extend the time provided for in this statute. Now, I suggest that actually what this gets itself down to is this. The Supreme Court of Louisiana has found that there is no exception to 202 with respect to fugitives. And on a well recognized principle which we've already discussed, this Court, I think will accept that finding, unless -- unless it's unreasonable and unless it's designed to -- to hurt -- to -- to deprive somebody of a federal right. And unless it's unreasonable. Then it violates the due process. The issue gets down to this. Is it unreasonable? Is it unconstitutional for the State of Louisiana to refuse to reward someone who is a fugitive because he was successful in his flight? It gets down to that narrow point. Is it unreasonable or is it therefore unconstitutional for the State of Louisiana to provide that a fugitive shall not get any special privileges by reason of the fact that he's a fugitive. Congress does virtually the same thing. And we cite the -- the statute of limitations and everyone that I could find says the same thing. We treat certain people, if you're not prosecuted within the certain time, you can't prosecute. What about a fugitive? Congress says that we're going to reward him because he pled no. That statute of limitations will not apply to a fugitive. I can find -- and I could find none that does and I submit that the logic behind that statute of limitation, certainly it's a different thing. But the logic behind the refusal to reward a fugitive is as applicable here. The Supreme Court says we are faced with this problem. Will we reward a fugitive? And says, "No, we will not." And this Court must be told that it's refusal to reward a fugitive is unconstitutional.
Earl Warren: What do you mean by reward?
Adrian G. Duplantier: Reward him because he gets -- if -- if Your Honor, if I can state this -- the rationale of 202 again in the Wilson case. The State's in a better position to justify the composition of its grand jury. It has a judge there who'll may be dead later on. It has the jurors there, who may have left the jurisdiction. There are many, many reasons why, at an early stage, the State can better justify the composition of a grand jury. Now, if a defendant can flee and -- and thereby extend the period provided in 202, he gets the real reward. Because the State may not have available information and it's likely that it won't, which it would have had available, had he not fled and had the theory provided 202 run against them. That's what I say.
Earl Warren: I get that. But I get back to the question that Justice Black who asked you. Do you know of any statute in any State that deprives a -- an accused person of any rights he may have on his trial or the procedure leading up to it because he is a fugitive from justice?
Adrian G. Duplantier: I -- I suggest that 202 doesn't. 202 deprives him of that because he doesn't file it within the three days.
Earl Warren: Well, you could just well say -- if you could just well say that if he wasn't indicted it seems to me --
Adrian G. Duplantier: Of course.
Earl Warren: -- you -- your don't say anything about it.
Adrian G. Duplantier: I'm -- I'm reminded that every prescriptive statute deprives a defendant. Every statute of limitations deprives a defendant of a right which he would have if he were not a fugitive by reason of the fact that he's a fugitive. Congress provides that. If you're not prosecuted with a certain term, you can't be. This man's a fugitive. You can't deprive him because of a fugitive have a real right. The defense, statute of limitations, no defense.
Earl Warren: Oh, no. No.
Adrian G. Duplantier: It's a certainly a deprivation of a defense which he otherwise would have had he not fled.
Felix Frankfurter: What you're saying is that the statute of limitation said you can't prosecuted after six years after the commission of the crime. But if he -- if he could say -- to say that nine years, he'd be prosecuted nine years after (Inaudible)
Adrian G. Duplantier: Yes, sir.
Felix Frankfurter: And therefore, to cut off of 50 is --
Adrian G. Duplantier: Yes, sir.
Felix Frankfurter: -- not in its face.
Adrian G. Duplantier: And that's a defense which he certainly would have -- had he not fled.
Tom C. Clark: Yes and that is that he -- he can still be prosecuted. Now, tell us the statute anywhere from this -- in this country, in any State of the union or the federal statute which says that in addition to not being able to escape prosecution, he shall have legitimate defensive and cut it off which the Constitution provided to him.
Adrian G. Duplantier: No, I can't -- I can't call the Court's attention to any such statute. I know of none.
Felix Frankfurter: For a legitimate defense to its crime?
Adrian G. Duplantier: No, sir, no defense, whatsoever. The State of Louisiana Justice Black as I understand the law could provide that anytime there's a successful attack upon the grand jury that the district attorney's affidavit charged in the crime shall serve as sufficient warrant for his prosecution.
Hugo L. Black: I suppose -- do you think it's not a legitimate defense, a right to legitimately defend yourself in carrying the jury best put it on another (Inaudible) remedy and remember that the relation of the person to it is conducted.
Adrian G. Duplantier: Well, a -- a petit jury, yes, sir.
Hugo L. Black: But what about the grand jury?
Adrian G. Duplantier: Well, of course, I'm -- I'd -- I'd rather not. To beg with, Your Honor, the question. I don't mean -- I don't mean --
Hugo L. Black: Yes.
Adrian G. Duplantier: -- to -- to -- skip about but I'd rather not debate the question which this Court has precluded. And that is that defense stage cannot discriminate in selecting like the grand juries. I have to accept that. I'm willing to --
Hugo L. Black: But, of course, the statute of limitation provides that the set by aside would wait for something to happen. You don't try to do anything that you then waive the right. You -- you can be positive. You -- you just do that. You can trust that statute of limitation with that. But if you have -- if you get away and make it is impossible to try that that's to prosecute. The point I want to know, but evidence said that even a similar criminal case that can cut off the man's right to defend himself --
Adrian G. Duplantier: Except --
Hugo L. Black: -- by a certain ground that the law allowed to defend either with reference to the merits of the crime or with reference to the validity of the procedure above the due process.
Adrian G. Duplantier: Well, I'll state again that I -- I can 't call --
Hugo L. Black: Outside of this one statute.
Adrian G. Duplantier: I cannot do that because I know it's not. But I'll -- I'll say again that --
Felix Frankfurter: I don't see why you retreat from the statute of limitation.
Adrian G. Duplantier: I don't retreat from it. I've -- I've tried not to, Mr. Justice Frankfurter but I --
Felix Frankfurter: (Inaudible) it was a perfect defense to a prosecution.
Adrian G. Duplantier: Certainly, it's -- it's a better defense than a grand jury indictment being invalid.
Felix Frankfurter: (Inaudible) and he doesn't go to the man -- it goes to the man who is within a skip only by one day. But he doesn't go to a man for a year.
Adrian G. Duplantier: No, I didn't -- I didn't mean to retreat from it and I suggest that it's a much better defense than this.
Hugo L. Black: (Inaudible)
Adrian G. Duplantier: Pardon me? I only step back one step at a time. Now, I'd like to get for just one moment to the question of -- of this petition of Labat and his contention that he wasn't represented by effective counsel. I'd -- I'd like to call the Court's attention to something you already have noticed. That Mr. Mahoney was supported about two months before the grand jury time I think. He did nothing conceded -- concededly until about a year and two months later when he got out of the case. But he was in the case for over two months while its prescriptive period in 202, the statute of limitations was running. We call the Court's attention in brief to several cases from the Circuit Courts of Appeal where the Courts have held and I suggest properly. Number one, first of all, that there's a presumption that counsel was confident. Man is licensed to practice law, we assume in the absence of the showing to the contrary that he is competent. Secondly, that his incompetence must be such as to shock the conscience of the Court before the Court would set aside proceedings on the ground of ineffective counsel. He must make, says -- says the Circuit Court a sham and a mockery of the proceedings. Now, with this background, what have we here to indicate whether or not Mr. Mahoney was effective, whether he was a competent counsel? The only thing in the record to indicate that is the Supreme Court of Louisiana's language which we quote in our brief which the Supreme Court has never said about me or about a lot of lawyers whom I know. And which the Supreme Court of Louisiana said, mind you, not in just complimenting Mr. Mahoney that he's a nice fellow or was, but because there was an attack made upon him in the Supreme Court of Louisiana that he was not competent and ineffective and what does the Court say? Able, learned, distinguished counsel, there's the Court which licenses him and regulates him in his law practice. Would you --
Earl Warren: Well Mr. Duplantier, does the Court say that he did anything? Now --
Adrian G. Duplantier: I'm going to get to that.
Earl Warren: Man -- man can be an able, conscientious lawyer and he might under given circumstances do nothing for -- now all I ask is and I don't argue and all I'll ask you is what does the record show that he did for this?
Adrian G. Duplantier: Well I've already stated that the record shows that he did nothing for a year and two months. And I was about to demonstrate I hope that if -- that that was the best thing in the world that Mr. Mahoney could do for this man, the best thing in the world. And in retrospect, if I were representing him, I'd have done exactly the same thing. And why was it? Because what could Mr. Mahoney have done inside of this period of a year and two months. Come into Court and say, I realized I've got an electric chair case, it's a very tough case on the facts and I realize that the State witnesses might die or leave the jurisdiction or get caught and that the facts may not be able to be proved in a year, but I want you to try my man tomorrow. That's what he could have done. He could have said, "I want you to put this man in trial, right now." Now, aside from that, the only other thing he could have done was file this motion to quash. And I'd like to examine what the result of that would be. Assuming that the motion to quash was time -- was timely filed and then it was valid. It would result in a finding by the District Court, and counsel was called in the Court's attention to the fact that at least one our judges has so found that the grand jury was improperly (Inaudible). So then what happens? I suggest that within a period of a very short time, this man would be indicted again by a valid grand jury. But, instead of that what does Mr. Mahoney do? And as Mr. Justice Harlan pointed out, I -- he made very well and all the counsel in this case made very well. I don't say that it was true but it could be may very well have reached the positive determination. I would rather not file this thing timely and why? Because if I don't' file it timely, then I can attack 202 as being unconstitutional after my trial. Then I'll get a trial by petit jury and I'll take my chances. I might get a good verdict from that jury. If I don't, I haven't lost anything because then I'm not effective counsel. I haven't done anything, 202 doesn't hurt him and as a result he gets another trial and another chance at a good jury verdict. So that I suggest that it -- it's --its as -- as indicative of strategy and instigation to not to file this motion, as it is to file it.
Earl Warren: Well, I would offer the observation that when Mr. Mahoney did that, he wouldn't be -- be the able, conscientious, upright lawyer that the Supreme Court said he would be.
Adrian G. Duplantier: Well, I don't know if he was representing this defendant and wanting to give him every possible opportunity that he could.
Earl Warren: Honorable opportunity.
Adrian G. Duplantier: Well, if he was convinced that 202 was unconstitutional, I don't know that -- that there's anything dishonorable about raising the point. If he's convinced that it is, and if he's convinced that there's going to be a finding that he is not effective counsel, I don't know. But I suggest it certainly, you get down to this on the point of effective counsel. Petitioner asked this Court to file but because Mr. Mahoney didn't file this motion, that's it -- that's the only thing he could have done, except to bring his man to the trial and how they offer verdict. That's the only thing he could have done. And counsel asked this Court to be -- to go pretty far to hold that a man in the Supreme Court of Louisiana described he's able, competent, and experienced, learned, that's he's ineffective counsel such as to shock the conscience of the Court because he doesn't file a motion to quash. An indictment based upon --
Harold Burton: Well, Mr. Mahoney couldn't they have gotten anything much by delay by filing to Court --
Adrian G. Duplantier: Is that so -- I said so --
Harold Burton: -- but he's been getting of that as it was.
Adrian G. Duplantier: Let me state that Mr. Mahoney may have known that the grand jury was in fact properly constituted. I don't know. He may have known that it was. We can't assume that it was not and that he just sat by and so I'm going to let this man lose his rights. He cannot assume that. So that, the mere lack of filing of this motion is suggested as sufficient reason for finding by this Court that Mr. Mahoney is not effective counsel. And if that's true, when does 202 ever have any application? Every time somebody doesn't file it, the defendant didn't have effective counsel, so the Court releasing of the limitation provided in 202 and 202 never applies to anybody because we just don't ever file them until the three days are up and then he had no effective counsel because it wasn't raised. And therefore, the limitation doesn't apply against him. He has not been represented by effective counsel.
Speaker: Was any attempt made at the hearing to show what Mahoney's condition was?
Adrian G. Duplantier: No, Sir. And as a matter of fact, I don't know as a -- as a matter of fact that he was in bed but he certainly was and I do know this. As far as I remember, Mr. Mahoney and of course I've been told by the people he wasn't in bed when this two months was running. And certainly he wasn't in bed the day the Court consulted him and said, "Will you take the support with Mr. Mahoney?" Mr. Mahoney was -- was one of the best known criminal lawyers in New Orleans.
Felix Frankfurter: Was the fellow distinguished that we can take judicial notice of when he was and when he wasn't there?
Adrian G. Duplantier: [Laughs] Well, now. I'm not sure of that, Judge. I didn't want to go out of the record on the point but the point is that he was in fact distinguished. He probably handled more appointments than any other lawyer in New Orleans ever did. And -- and we call the Court's attention in -- in a supplement to our brief. And the defendant also agreed. This man was honored by the -- by the community, by the criminal court bar association to which probably all of these people belong as a -- as a fine man for his contribution to criminal justice.
Hugo L. Black: Appointment of what?
Adrian G. Duplantier: Appointments to represent defendants in -- in cases at the request of the Court.
Felix Frankfurter: Could I ask you --
Adrian G. Duplantier: He -- he had and he had done as much of that kind of services and I think anybody in the history in the world.
Felix Frankfurter: Do you think that -- consider the Court -- the Court applies the Constitution to apply and find this Court. (Inaudible)
Adrian G. Duplantier: Not only requires appointment, Mr. Justice Frankfurter --
Felix Frankfurter: Was there a statute in Louisiana?
Adrian G. Duplantier: Yes and requires a man with at least five years experience which I suggest is further --
Felix Frankfurter: Is that all the information honoria?
Adrian G. Duplantier: No sir, we have been in the last period since at least in our knowledge we pay expenses and we charge like the expenses on that.
Felix Frankfurter: No statute refuted the when -- what (Inaudible)
Adrian G. Duplantier: I think it's in the 1928 Code of Criminal Procedure. I don't know how far back. I think it's not in our Constitution as a matter of fact.
Felix Frankfurter: We see this (Inaudible)
Adrian G. Duplantier: Oh yes. I think it goes back to all (Inaudible) We're early on it, our first Constitution. I'm not certain enough but I think that --
Felix Frankfurter: How much is your presence he now called on the procedure of guide is still around in (Inaudible)
Adrian G. Duplantier: I think very little, very little.
Earl Warren: Did you have (Inaudible)
Adrian G. Duplantier: No, I avoided. There's going to be a reply I made to preserve (Inaudible)
Earl Warren: Well, I think this is your time now after -- I think you have some time left gentlemen, a little.
Adrian G. Duplantier: I would try to be very brief, Your Honors. First of all, with regard to the fact that perhaps Mr. Mahoney in doing nothing for this client was engaging in some significant strategy. I wish to call, Your Honors attention to the statement made by the district attorney on page 25 of this brief. He says, "Mahoney may have determined that such an attack would be in vain since he may have known as a fact that there had been no systematic exclusion. I submit that the district attorney in -- in making that statement in his brief is contrary to judicially admitted facts of the newspaper or articles which reported our brief showing that it's as a matter of common knowledge that at least there's a prima facie case in Louisiana for showing that there's discrimination in the selection of grand jury. It's a common knowledge. I have newspapers all over the place but I have quoted one of them in my brief which I think succinctly -- states the point. Now, I submit that if Mr. Mahoney tried to do the other thing and that is say well, I'll let my client's rights pass. I've got a capital case. This man may be electrocuted but I'm going to let this delays run and then I'll come and try to -- to confuse the Court and maybe get a writ out of the Supreme Court. I submit that that statement of its very nature would indicate that that Mr. Mahoney, if he did that, well then he didn't know what he was doing and certainly he wasn't an effective counsel. He was -- was ineffective. If -- if he tried to let a -- a substantial delay when he had a prima facie case, a matter of common knowledge, a matter of -- I would say that the Courts -- the Criminal District Court of the Parish of Orleans takes judicial cognizance of the fact that at least there's a prima case of discrimination on juries and the lawyer lets it pass in the hope of getting some type of writ from this Court of something. I -- I just would.
Harold Burton: What could Mr. Mahoney -- what could Mr. Mahoney that will accept the -- in quashing in this indictment?
Adrian G. Duplantier: He would have gotten first of all a quashing of the indictment.
Harold Burton: That was mean of the man's reindictment.
Adrian G. Duplantier: Possibly so.
Harold Burton: Yes. (Inaudible)was a little time.
Adrian G. Duplantier: Possibly his client might not have been reindicted with a constitutional jury.
Harold Burton: And possibly he would too.
Adrian G. Duplantier: Yes, but at least I would say that if I have a prima facie case of an unconstitutional grand jury indicting my client, and I have a means of procedure whereby I can get a constitutional grand jury then I certainly as astute counsel should file the motion and have my client indicted by a constitutional grand jury.
Harold Burton: He might get a constitution white grand jury the second time too.
Adrian G. Duplantier: He might have and he might have not Your Honor, but the fact is I think that as was stated by someone, this man is entitled to a constitutional grand jury and a constitutional trial and he didn't get it under all of the circumstances of the case.
Felix Frankfurter: Are you prepared to state as a matter of knowledge that in every case during last 10 years in which a Negro was indicted with the New Orleans Parish was supposed to be applied to (Inaudible) constitutionality of the grand jury at that time.
Adrian G. Duplantier: No, I am not prepared to state that --
Felix Frankfurter: (Inaudible)
Tom C. Clark: (Inaudible)
Adrian G. Duplantier: Customarily, it set all for about a --a week to 10 days -- 15 days at which time the district attorney comes in and files an answer to the motion to quash. As I say customarily, --
Tom C. Clark: Have they tried to separate on this?
Adrian G. Duplantier: Then that -- then that is tried. Customarily, when the motion is timely made, since Your Honor asked to this. It's not in the record. Customarily, if the motion is timely made, and it's not a particularly (Inaudible) case, the district attorney in the past is often pleased.
Hugo L. Black: That has nothing to do with the --
Adrian G. Duplantier: Nothing in --
Hugo L. Black: -- case of which calls for trial.
Adrian G. Duplantier: No, no, nothing to do with when the case was --
Hugo L. Black: Just as if you'd just filed it and had to get a new indictment it's likely to have a later number and to be tried later --
Adrian G. Duplantier: Well, that's right, that's right.
Hugo L. Black: (Voice Overlap) --
Adrian G. Duplantier: But my point is that you -- if you filed it and the lower court quashed it or you went to the Supreme Court when you finally came back and needed to be reindicted again, what I submit that the second time that he would be reindicted, he would be reindicted by a constitutional grand jury.
Hugo L. Black: But that would be a new case and it'd take its place along with the new case.
Adrian G. Duplantier: A brand new case just as this case will be if Your Honors remanded and we're show that this grand jury was unconstitutional the it will be up for further proceedings. But I submit further if Your Honor please that in the events that this Court should see fit to remand the case of the codefendant, Poret, who was indicted on the same indictment as Labat, the same physical piece of paper by the same grand jury for reasons not as cited by Labat but which were recited by Poret. In other way, the substantial -- although the codefendants have tried at the same time, there are substantial factual differences in the question of Article 202 that if Your Honors should see fit to remand Poret's case, then under the law, Your Honors should also remand this case.
Hugo L. Black: What's that law?
Adrian G. Duplantier: Under the Louisiana jurisprudence which says as follows, when a motion to quash -- if it -- while a motion to quash is limited, while a motion to quash a particular indictment was limited in effect to the defendant invoking it, a motion to set aside as a venire if sustained had the effect of declaring the venire bad and illegally drawn and the jurors composing it, no longer jurors and no indictment or conviction by them would stand.
Speaker: (Inaudible)
Adrian G. Duplantier: That's State versus Revels in 31 Louisiana (Inaudible) which is cited on page 24 of my brief. In other --
Felix Frankfurter: (Inaudible)
Adrian G. Duplantier: Now, well that's the -- that's the point I wish to get over. And with that Your Honors, I wish to submit remand.
Earl Warren: Thank you. Mr. Schreiber, Justice Frankfurter had one question he wanted to ask you --
Speaker: No, it is me, Chief Justice.
Earl Warren: Oh, what -- I beg your pardon, Justice Harlan.
Speaker: I want to ask you whether at the time the demurrer proceeding was tried before judge heard you made the claim that you'd understood that the extension of the arraignment had operated to give you a -- an extension of the time to file your motion to quash.
Gerard H. Schreiber: (Voice Overlap) --
Speaker: I don't find anything on the record to -- that indicates that.
Gerard H. Schreiber: Well all of the testimony that was taken at that particular time is -- is in the record. I was testifying because --
Speaker: But the point is you didn't make it. That's --
Gerard H. Schreiber: Well my point throughout the entire thing, I -- I say, assert in there very definitely that I did not consider myself to have been appointed by the Court on March the 2nd. I positively assert that in there. And a few other things are -- now like this question of who was chief counsel. Now, that came as a very great surprise to me when Judge (Inaudible) said to Mr. Fust in due deference to you, Mr. Fust, I only appointed you to assist Mr. Schreiber. And Mr. Schreiber was to be the chief counsel that had never come up until that particular time. It came as a very great surprise to me. And all of the -- the testimony that was taken, the -- the facts surrounding the appointment and so forth, it was all perpetuated because we felt we would have to commend that they need to the consideration of this Court and wanted to make up a good record in that respect because very definitely may not positively assert that I did not feel that I had been appointed and certainly knew absolutely nothing about this chief counsel's presence. Does that answer you, sir?
Earl Warren: Do you want to say anything to Mr. --
Adrian G. Duplantier: Yes I would.
Earl Warren: Yes, you may --
Adrian G. Duplantier: The Louisiana statutes which was mentioned to the effect that a person must have practiced law for five years before he can represent the person in the criminal case. I don't believe Mr. Fust has been practicing five years in 1952. It couldn't have been a chief counsel. Mr. Schreiber must have known that. My recollection is that Mr. Fust graduated in 1950.
Gerard H. Schreiber: May I, Your Honor.
Earl Warren: Yes.
Gerard H. Schreiber: I knew what -- the record there is that Mr. Fust and I had no contact with each other prior to March the 6th. I didn't know anything about Mr. Fust. Mr. Fust didn't know anything about me. The remand is in the -- in the record. He called me on March the 6th and then told me that he had been appointed in the case too, with me. And so, we got together on March the 7th. But there was no discussion made before that who was going to be appointed or anything else, see. And this is all borne out and very specifically by the record.
Earl Warren: Very well. All right, gentlemen.