Warren E. Burger: We'll hear arguments next in 5176, Franks against Delaware. Mr. Huntley, I think you may proceed now.
Donald W. Huntley: Thank you. Mr. Chief Justice, and may it please the Court. The issue that's presented in the Franks case is one that's troubled the Court for a good length of time, and that is very simply, what is to be done if a search is conducted pursuant to the warrant, pursuant to a search warrant and the affidavit supporting that search warrant just isn't true? We would all like to thank --
Warren E. Burger: But is there nothing, a related question that flows from that, if there's enough in the warrant which is true to support the search? That's the next question, isn't it?
Donald W. Huntley: Yes, that's true. It would seem that a warrant should be able to stand on those facts that are in at even the event -- even in the event that there are misstatements within the warrant. And we would all like to believe that the police in the United States simply don't use false affidavits to obtain a search warrant. In the present case, however, the petitioner wanted the opportunity to show at trial that certain misstatements were made in the application for a search warrant and the affidavits supporting that application. We submit that the remedy when the issue comes up, it is to first allow the defendant the opportunity to make such a showing. And if he does show that in fact the misstatements were made in the search warrant application, then the resulting evidence ought to be excluded.
William H. Rehnquist: Mr. Huntley, I've read the colloquy between Judge Bush and trial counsel in the Delaware trial court and I gather what his -- what the trial counsel sought to contest was the affiance representation as to what had been told him by two other people, is that correct?
Donald W. Huntley: Not entirely, Your Honor.
William H. Rehnquist: Well, what -- and in what respect does that incorrect?
Donald W. Huntley: The contested allegations in the search warrant affidavit were very simply whether certain conversations took place at all. Now, in the absence of those conversations taking the -- taking place, the defendant was prepared to show further that the representations that were behind what allegations were made were erroneous. But the basic issue was the existence or none existence of certain arguments, of certain conversations between the affiant officer and two witnesses.
William H. Rehnquist: And he wanted to show that they had not had any conversations with the affiant and the affiant had said they had?
Donald W. Huntley: Exactly. The respondent has argued that if misstatements are shown and that this are material, that the remedy of exclusion is very simply too harsh. They said that Delaware has suggested the benefit of the exclusionary rule of the turned effect is far outweighed by the societal interest in preserving the integrity of orderly criminal law enforcement. We disagree that the remedy of exclusion is too harsh.Certainly, in the case of a substantial misstatement on the part of an affiant, civil prosecution for damages, if they could be assessed, certainly wouldn't be a remedy that be would be too harsh for the affiant involved.
Speaker: Well, let -- let me follow up on that.
William J. Brennan, Jr.: And further, Renquist's question, I'm not sure I understood you. Supposed an officer makes an affidavit that -- that he has been told by a reliable informant, et cetera, that such and such is the case that they're representing that the affiant has told him -- whether the informers told him that certain facts were true. Now, -- are you -- are you suggesting that the search warrant should be upset and suppression should follow from -- if -- if one, the -- the officer who made the affidavit never had any such conversations at all. Or -- and if it's admitted that he had the conversation with the informant, and the informant did tell him that, but what the informant told him was false.
Donald W. Huntley: The consideration -- this situation that we have in the present case is the first. That is the --
William J. Brennan, Jr.: Are you -- are you even addressing the letter?
Donald W. Huntley: Yes, I -- I think we can very well.
William J. Brennan, Jr.: No, I don't want you to or any but our base -- you don't think that's involved in this case?
Donald W. Huntley: To a certain extent, it is involved in this case because we don't have the benefit of the witnesses that the defendant sought to present.
William J. Brennan, Jr.: But are you submitting that -- that you should be able to attack the warrant based on the false statements of the informer?
Donald W. Huntley: There are two considerations that are involved.
William J. Brennan, Jr.: Well, yes or no. Are you --
Donald W. Huntley: In some circumstances, yes. The considerations that should go into the determination of the exclusion of evidence, it seems to me are dictated by two factors. First, the fundamental reason for exclusion itself is one of deterrence. As Mr. Justice White observed in the Stone v. Powell case, when law enforcement officers have acted mistakenly, but in good faith, unreasonable grounds, and yet the evidence they have seized is later excluded, the exclusion can have no deterrent effect. We should, in all circumstances, keep in mind what the effect is likely to be in the exclusion of evidence. Now, turning to the particular situation that Mr. Justice White was addressing, the primary consideration should be whether there will be a substantial deterrent effect in the exclusion of every -- any particular piece of evidence. Now, to carry this step further, we need to concentrate on the reasonableness of the assumption of the affiant. If in fact the evidence that he relies on was false but he had a reasonable basis for believing it to be true, certainly, we aren't going to have any significant benefit from the exclusion of that particular evidence.
William H. Rehnquist: But that would be an issue that could be litigated in this supression here when I take it under the rule you're contending for.
Donald W. Huntley: That's true.
William H. Rehnquist: The reasonable expectations of the affiant.
Donald W. Huntley: That's right.
William H. Rehnquist: And would this apply to an arrest warrant as well as a search warrant?
Donald W. Huntley: That particular situation is in front of us but I should think that yes, the same considerations would apply. The Constitution in the cases of searches and seizures requires that the search be reasonable or prohibits unreasonable searches and seizures.
William H. Rehnquist: How do you distinguished this case from Calandra, then where we said that the fact that suppressible testimony had been given before the grand jury didn't void the ultimate indictment rendered by the grand jury?
Donald W. Huntley: The considerations involved there were that -- the differences in procedures before the grand jury and the actual trial were so great as to warrant a distinction and permit the use of the evidence by the grand jury even though it wouldn't be admissible at trial, if I understand the cases correctly. We would suggest that the culpability of the misstatements is a very important consideration that is central to the issues that we have here.
Warren E. Burger: Tell me -- tell me this, Mr. Huntley. Is there something more than the statement on page 16 of the appendix by defense counsel as to his offer of proof as to what he would prove if the hearing were granted.
Donald W. Huntley: I -- no. The --
Warren E. Burger: It is the statement, “Your Honor, I intend to produce a certain man who I believe will give information that will tend to impeach the information” and then it goes on further that -- “but throug the fact that it was never given and as such there may have been a rather material misrepresentation.” Now, do you depend on more that to have alerted the Court to which you are going to prove?
Donald W. Huntley: No, this is as far as the trial counsel was allowed to proceed in the presentation of evidence.
Potter Stewart: Well, he said a little something additionally at the bottom of page 16. They will testify that neither one of them to the best of their knowledge gave this information to either of the affiants containing this affidavit.
Donald W. Huntley: That's true. But what I meant by the fact that they went no further was that they --
Warren E. Burger: There's nothing in writing. There is no --
Donald W. Huntley: There were no affidavits presented by the proposed witnesses.
Speaker: But at least those are clear statements that in his opinion that the affiant was -- was making a misstatement anyway.
Donald W. Huntley: Yes.
Speaker: And may be lying.
Donald W. Huntley: Exactly.
Speaker: And knowing they're lying.
Donald W. Huntley: That's right.
William H. Rehnquist: And the Supreme Court of Delaware, in effect, said that you can't impeach the warrant for any reason, whatever.
Donald W. Huntley: That's true. They said that there was no basis after the initial magistrate's ruling on the validity of the warrant to show that the warrant was false. And this is the decision that we appeal here. We think that in consideration of this question, the categories of culpability should be given very careful consideration by the Court. While here, we sought to show that there were specific misstatements, that is, plain inaccuracies that should have been known by the police officer. We don't have the actual benefit of the testimony here. And the actual testimony, of course, should have -- could have shown anything from a complete fabrication to a simple misunderstanding or innocent error on the part of the officer. The categories of misstatements have been broken down into four sections ranging from completely innocent misstatements through negligent misstatements, reckless misstatements or in the worst case, willful misstatements.
Speaker: Mr. Huntley --
Donald W. Huntley: Yes, Your Honor.
Speaker: Neither you know your opposition has cited Rugendorf against United States. So, although the United States in its amicus brief does, will you have some comments on that after lunch? Because I think this an obstacle for you in this case that these inquiries from the bench have brought into focus, as to whether the misstatements here are of sufficient integrity to escape the ruling of Rugendorf.
Donald W. Huntley: I'll consider that. The categories that we suggest deserve consideration for a possible exclusion of evidence are the three categories that I feel warrant that particular remedy. That is, those misrepresentations that have a degree of malfeasance on the part of the officer. Those categories that we set forth before that contains some malfeasance are those that involve either --
Warren E. Burger: So, we'll resume there at 1:00, counsel. You may resume, counsel.
Donald W. Huntley: Thank you, Your Honor. May it please the -- the Chief Justice and the Court. Before the lunch and recess, Mr. Justice Rehnquist inquired about the relation between the present case and the situation that was treated by the Court in the Rugendorf case.
William H. Rehnquist: You're maligning my colleague, Mr. Justice Black.
Donald W. Huntley: I beg your pardon. The distinctions between the present situation and the -- the Rugendorf case, I think, are quite clear and quite significant. In the Rugendorf, there were two allegations for the inaccuracy or the inappropriateness of the search warrant affidavit. The first was that the affiant didn't have probable cause to make his allegations because he was merely reporting the testimony of another, and that since this informant's testimony by way of the officer wouldn't be presentable at trial that it shouldn't provide probable cause in that situation. Our current case is distinguished by the fact that we're concerned about the occurrence or non-occurrence of the conversation itself, and that the admissibility of the officers reporting of that conversation at trial.
Speaker: One way, you're drawing the distinction between double hearsay and hearsay, aren't you, among other things?
Donald W. Huntley: I imagine so, yes.
Speaker: I -- I just think that -- that the Rugendorf case represents a significant hurdle for you to get over. But I am surprised that neither of you cited it, and it was up to the SG in his amicus brief to -- to bring it up. But then, go ahead.
Donald W. Huntley: Well, we believe that that is a primary consideration in the distinction between the two cases. Then, too, in the Rugendorf case, the factual inaccuracies were first of a minor nature, and secondly, were the inaccuracies made by the informant and not the affiant. And we believe this is a very important consideration here.
Warren E. Burger: But if enough accurate information is found in the affidavit, you consider that the outset of your argument that renders inaccuracy as irrelevant.
Donald W. Huntley: I believe that justice would dictate that result, yes. In the present situation, however, the allegations that we're dealing with went to the very heart of the content of the search warrant affidavit. The --
Warren E. Burger: But would that alter the basic preposition that you have now agreed to twice? That if there is unchallenged material in the application -- application for a warrant, which would sustain probable cause and everything else is irrelevant.
Donald W. Huntley: We would concede that. I argue in this case, though, that that wasn't the situation that the only allegations in the search warrant affidavit are related specifically to the evidence. So, that was found in the likelihood of the evidence being in the defendant's apartment. I've pointed out to the Court what we feel are the basic considerations in excluding evidence obtained to -- pursuant to a search warrant where the affidavit was false. And that is that the evidence should be excluded only when first, there are some reasonable chances that such exclusion could deter the misstatements in the future. And secondly, that the misstatements were unreasonable within the specific wording of the Constitution. If for example, the basis for the affiant's statements was inaccurate, but at the same time he reasonably believed them to be accurate and there were no courses of inquiry that he should have pursued, as a reasonable man should have pursued, then clearly, his conduct was reasonable and at the same time no deterrent effect can be made by excluding evidence based on reasonable conduct. We'd also like to explore the specific circumstances under which the defendant should be allowed to make a showing of inaccurate statements in the search warrant. Both the amicus United States as well as the respondent has suggested that a preliminary showing of some kind be required possibly to the extent of requiring affidavit evidence before this is submitted for a suppression hearing and the defendant given the opportunity to show these inaccuracies. The most frequently advanced argument for this is that it would prevent time-consuming and frivolous exercises at court in search of misstatements when there's no reasonable belief that misstatements actually exist. We suggest that this is not a reasonable apprehension. I personally don't have extensive experience in criminal practice, but I rely on the judgment of those of our colleagues that have made a detailed study of this. For example, Professor Grano, in his treatment of this subject, points out that 60% to 90% of all defendants plead guilty, usually without a prior motion to suppress. Second, most searches are conducted without warrants, and the defendants in this cases now have full opportunity to file a suppression motion. Third, even in those few cases involving warrants, defendants can obtain a suppression hearing of limited scope, simply by asserting that the warrant's execution was unlawful. Hence, permitting defendants to controvert warrants would increase the present number of supression hearings only insignificantly and merely add the length of some hearings already granted.
William H. Rehnquist: Of course, you're -- you're talking about kind of a -- of a spectrum in a -- a balance one way or the other, aren't you? Here, where you -- well, one could have a rule that the magistrate -- once the magistrate has issued a warrant, the warrant requirement is satisfied even though a court related to determine that the facts alleged in the warrant didn't satisfy probable cause. Now, the Aguilar and Spinelli hold otherwise. Now, you -- or you could have a rule that the Court can determine probable cause but the magistrates find and insist to credibility. A factual credibility will be upheld. You -- you want a third rule that says, “The magistrates determination in either case would be upheld and re-subject to reexamination by a court. There there's a -- you're -- you're talking about basically on incremental deterrent value. You're -- not something that's an absolute right under the Constitution.
Donald W. Huntley: That's right.But it seems to me that the deterrent value is much more applicable to the present situation than a review of the sufficiency of the search warrant.
Potter Stewart: But your argument is a constitutional argument.
Donald W. Huntley: Yes, Your Honor, it is.
Potter Stewart: I -- I even add that a -- that a warrant that is issued on false information --
Donald W. Huntley: Is not a reasonable search.
Potter Stewart: -- is not the kind of a -- is not a kind a warrant that -- that the Fourth Amendment allows.
Donald W. Huntley: Exactly.
William H. Rehnquist: And -- and yet, you yourself say that, where the information is false but the officer didn't have any reason to believe it was a false, it's -- it complies with the Fourth Amendment.
Donald W. Huntley: Yes, I'd so submit.
Speaker: That's because it says probable cause.
Donald W. Huntley: The probable cause lies with the affiant. And from our standpoint, if the affiant had a reasonable basis to believe his alligations, this satisfies the constitutional requirement. We can't, in all circumstances, require that the affiant be absolutely correct, as Mr. Justice -- Chief Justice Burger has pointed out that it's unreasonable to require that degree of care on the part of the average constable. You can't --
Warren E. Burger: You understand that we had a case argued only last week where it had a warrant obtained and was obtainable there -- there being time, nevertheless, it would have been great pressure to -- to recite the necessary material. And it -- it could be almost unlikely that there would be a perfect affidavit for a warrant at anytime. Is that not so?
Donald W. Huntley: That is possible. We'd suggest that if a defendant were denied the opportunity to, as a mater of right, to challenge the authenticity and the accuracy of the search warrant allegations, there would be two very undesirable consequences that would flow from this.
William J. Brennan, Jr.: Well you know, I didn't realize you were suggesting that anytime a person comes and makes an allegation that the -- that the affidavits contain some inaccurate information that you should be allowed to put on your proof. Don't -- don't you have to also as you suggest, indicate that the officer knew it was wrong?
Donald W. Huntley: Yes. Certainly, the proof that's required is that the officer's conduct was unreasonable.
William H. Rehnquist: But does your -- does your allegation that gives rise to your right to discovery or hearing have to be any more than just an allegation that --
Donald W. Huntley: We submit that if it were anything different than just an allegation, that we'd come up against the situation that was held satisfactory in the Carmichael case. There --
William J. Brennan, Jr.: You mean in every case, you just make the allegation whether you have any basis whatsoever and you can put the officer on the stand and cross-examine him. Is that it?
Donald W. Huntley: Yes, I believe that the defendant should be allowed that right. If he has a -- a reason to suspect --
William J. Brennan, Jr.: Well, I know. What reason then -- what reason? That's what I want to know. What reason? And does he have to stay and say what the reason is before he can get a hearing on?
Donald W. Huntley: The fact of the matter is that in most criminal situations, there is no opportunity for discovery. And it's very unlikely that the defendant will be as fortunate as he was in this case and have a specific basis.
Speaker: Well, so my -- so the question remains that -- does all he have to do is make the allegation and then -- and then a hearing?
Donald W. Huntley: I think for satisfactory fulfillment of the constitutional requirements, the defendant, is by right, entitled to the opportunity to present such evidence as he may have.
Speaker: Well, I know, but if he's got any, why doesn't he present it? You -- you mean, he wants to -- he wants to just cross-examine the --
Donald W. Huntley: In view of the ex parte nature of the initial proceeding in granting the search warrant, I think that he's entitled --
Speaker: And also, if you're going to do this, I suppose you have another leg up on getting the names of informants.
Donald W. Huntley: This is a separate issue fortunately. They're not involved in this present situation. Short of getting the identify of informants, the defendant could, at the very least, inquire under the circumstances surrounding the affiant's alleged information. And that -- make other inquiries that would test the credibility of his -- like having an actual informant or whether the informant gave the information that -- that was --
Speaker: Of course, the magistrate is entitled to do that when he issues the warrant. For all you know, he did.
Donald W. Huntley: That's very possible, but this was in an ex parte proceeding.
Speaker: Well, I know but the -- nevertheless, the magistrate is -- can cross-examine and get oral testimony if he wants. And if he has any doubts about it, he doesn't issue the warrant, I think.
Donald W. Huntley: Well, it's gratifying to have some authority vested in the magistrate but the judicial tradition in this country is that the issues are best discussed in an adversary proceeding.
William H. Rehnquist: Well, one of our cases says that the purpose of the warrant, where I think it's the McDonald case, or is to interpose between the police authorities and the defendant, the neutral magistrate. It doesn't say the whole court system.
Donald W. Huntley: Well, this Court has considered the role of the magistrate in similar situations regarding the sufficiency of the allegations. And it has felt that the review of the sufficiency of the allegations in the search warrant affidavit is appropriate at a suppression hearing.
William H. Rehnquist: Well, that may not be because the -- as the Court said in Shadwick versus City of Tampa, a magistrate need not be one trained in the law.
Donald W. Huntley: That's a possibility. Hopefully, they have the highest degree of competence possible. But it seems much more basic to have a review of a factual matter through an adversary proceeding.
Thurgood Marshall: Why can't they have an adversary proceeding before you get the warrant? That's impossible.
Donald W. Huntley: Of course, that's unreasonable. This would just invite the destruction of evidence.
Thurgood Marshall: It's impossible. But if it's an adult case, it's impossible.
Donald W. Huntley: Yes, sir.
Thurgood Marshall: Well now --(Voice Overlap)
Warren E. Burger: When the counsel made this rather speculative, indeed highly speculative proffer, why couldn't he have presented by affidavits exactly what he proposed to present to the Court ultimately?
Donald W. Huntley: In the present case, this would have been possible if he'd recognized the necessity for a preliminary -- preliminary showing. However, in this particular case, he did have the evidence available and felt possibly that it would be an undoing position on the time of the presiding judge to first review the sufficiency of his preliminary showing. And then subsequently, hear the witnesses besides.
Warren E. Burger: Well, as it turned out, he had to do both, on your theory. On your claim, he would have to do both. He's -- he's considered it preliminarily here. And -- and now, you are here saying that you want him to conduct the full adversary hearing.
Donald W. Huntley: That's right.
Warren E. Burger: Now, what if the judge had said in response to this proffer, I have considered the points which you say you may possibly be able to prove. And even if you proved them all, there's enough remaining here to support probable cause and your motion is therefore denied.
Donald W. Huntley: With that, I would feel it would be a final adjudication of the matter. The judge certainly would have resolved the doubts in favor of the defendant. And the there would have clearly been, as they're all reviewed, the validity of the search warrant. We think that if the preliminary showing would require -- would be required that we would have a -- a two-fold problem. First, the allegations would -- for the invalidity of the search warrant would become as cursory as they were in Carmichael. And secondly, I think that we would see a -- a movement on the part of the police officers to disguise their informants and even when they do have a -- a probable cause for an affidavit quoted in such terms so that the credibility of this information couldn't be checked by the defendant. We have a system of justice that has systematically eliminated many of the legal fictions that we had in the English common law and the statutory law. We submit that the requirement of a special preliminary showing and inconsistent with the -- the routine handling of search warrant affidavits would foster the presentation of new legal fictions and we don't believe that this would be helpful in the administration of justice. We ask that the judgment of the Delaware Supreme Court be reversed and that this Court confirm two basic corollaries to the Fourth Amendment. First, that a defendant has the unfettered right to show at a suppression hearing that an affidavit was false. And secondly, that the evidence resulting from a search be excluded whenever the search was based on a false affidavit that a reasonable man would not have believed to be true. If there are no further questions, we thank the Court.
Warren E. Burger: Mr. Turner?
Harrison F. Turner: Mr. Chief Justice, may it please the court. Initially, I'd like to present to the Court the idea that the exclusionary rule of the Fourth Amendment should not be extended to this case. I would like to discuss Mapp versus Ohio which was the case which made the Fourth Amendment exclusionary rule applicable to the States. It is to be noted that Mapp was a search without a warrant. The articles seized were contraband, the very subject of the charge, and I think this is important. They were testimonial in nature and there appeared to be no alternative remedy for the invasion except a deterrent supression of the evidence. In Stone versus Powell, this Court had occasion to analyze Mapp's application to the exclusionary rule to be founded on, one, the prevention of the introduction of evidence where introduction is tantamount to a coerced confession, two, a deterrence of Fourth Amendment violations, and three, judicial integrity. This case is markedly distinguishable. The items seized were not testimonial or communicative. Let's look at what was seized. Items of clothing. Now, the charges were burglary, rape, kidnapping. These items of clothing had nothing to do with any of the elements of the crime. So, I submit, there is no Fifth Amendment overtones, in this particular case. In every other case that I have researched, I find that Fifth Amendment overtones, or Sixth Amendment, are applicable. Therefore, as this Court has stated in Calandra and -- I believe, in Janis, the exclusionary rule is a judicially created remedy designed to case, safeguard Fourth Amendment rights, generally, through its deterrent effect, rather than a personal constitutional right of the party aggrieved. Accepting this, then, for this Court to intervene in this case, I submit would be contrary to federalism in allowing the state courts without a constitutional -- A US constitutional point to come before this Court, it would be unjust for this Court to interfere. As Justice Clark stated in Kerr versus California and Mapp versus Ohio, we followed Boyd versus US which held the Fourth Amendment, implemented by the self incrimination clause of the Fifth, forbids the Federal Government to convict a man of a crime by using testimony or papers obtained from him. Now, let me point out here that the respondent, in 1950, adopted the exclusionary rule of Weeks. And that is so noted in Elkins versus US as one of the States that had adopted the exclusionary rule by means of case law, Rickards versus State , 77 A. 2d 199 (1950). This is prior to Mapp. Now, our supreme court, the Delaware Supreme Court, in passing on this matter, felt there was no constitutional violation. I submit that the Supreme Court of Delaware should be confirmed. The next point, the application of the defendant for a hearing. The court has discussed it rather thoroughly. They know what it amounts to. I submit it was merely highly speculative and not a grounds for conducting a hearing.
William J. Brennan, Jr.: But it -- it certainly indicated that the anticipative putting on the testimony of informers who would deny that they had any conversations like that at all?
Harrison F. Turner: When you say informer sir, they were named witnesses.
William J. Brennan, Jr.: Yes. Well, that he -- he would put on the witnesses who would claim they didn't have the conversations with --
Harrison F. Turner: That's he wanted to do, Your Honor. No question about it. That's what he wanted to do, but --
William J. Brennan, Jr.: But what if he had a -- what if he had prepared an informal offer of proof to which was attached affidavits of the witnesses?
Harrison F. Turner: That's a different proposition, Your Honor. As a matter of --
William J. Brennan, Jr.: Well, why would that be different in terms of the fourth corners rule?
Harrison F. Turner: Well, Rule 41(c) of the Delaware Criminal Rules specifies on supression of evidence that the motion will be by affidavit -- supported by affidavit, I should say, and specifies all this.
William J. Brennan, Jr.: But would you -- would you say that it's a -- would you say that if he hadn't made a formal offer of proof supported by affidavits by -- of the witnesses who say, “We never had any conversation with the officer, whatsoever?” Now, suppose that he had made that sort of a submission.
Harrison F. Turner: If he had shown --
William J. Brennan, Jr.: And then that -- then let's suppose the Delaware Court had still said “It doesn't make any difference what your submission is. The -- the -- you -- you may not attack the face of the warrant.”
Harrison F. Turner: No. The Delaware court would have been wrong in that case.
William J. Brennan, Jr.: Constitutionally wrong?
Harrison F. Turner: Constitutional --
William J. Brennan, Jr.: Well, that's what the issue is here. Is it constitutional or not to -- for a state to deny a -- a chance to attack the --
Harrison F. Turner: I would say it's not constitutionally wrong, unless the court considers the -- and the only out would be judicial integrity, it would appear to me in that case.
William J. Brennan, Jr.: Well, you would still say that Delaware constitutionally could say “We're going to -- we're just not going to allow any kind of an attack on the -- on the warrant.” Even if, -- even if their affidavits that the affiant officer committed perjury?
Harrison F. Turner: Yes, Your Honor.
William H. Rehnquist: Certainly, that's what the Supreme Court Delaware said.
Harrison F. Turner: Now, when we come --
William H. Rehnquist: Well, didn't -- didn't the Supreme Court of Delaware take that position?
Speaker: Yes.
Harrison F. Turner: Yes. Yes, Your Honor.
Byron R. White: That is the four corners rule.
Harrison F. Turner: That's correct. Now, I would like to compare the Mapp rule with the deterrent that's already built into this situation. Calandra said, I believe, that only the most efficacious cases would the -- would the exclusionary rule be applied. I submit that this is not one. The situation here is you have a deterrent of a perjury charge or a criminal charge. The deterrent rule exclusion of evidence punishes who? It punishes society. They had nothing to do with it. The perjury rule goes right to the heart of the individual involved. He's the one that's a shocker. Now you say, “Well, if we exclude the trial that might deter him.” I submit that the police office who would lie under oath is not one that's going to be deterred by that, by exclusion of the evidence at trial. He has demonstrated that he is really not interested in enforcing the law. He is sort of interested in violating it.
Warren E. Burger: Counsel, I -- I think you are undoubtedly aware those arguments had they been advanced to the court on a number of occasions and briefs, and to no avail. It has persuaded some members of the court, but not the majority.
Harrison F. Turner: Well, I come then to the last area in which I submit that the -- the evidence submitted are tendered in evidence, the articles of clothing submitted were harmless beyond a reasonable doubt. The items that were introduced consisted of clothing which, in effect were identification. We had in addition to that, two statements made by the defendant not admitting guilt but admitting his identification had an opening --
Speaker: Was this argument made to the Delaware Supreme Court?
Harrison F. Turner: The harmless area, yes your honor. They didn't get to it.
Speaker: They didn't need to get to it.
Harrison F. Turner: Apparently. It was made --
Speaker: Ordinarily we don't get to it either unless the lower court had to.
Harrison F. Turner: That I can't answer.
Speaker: We were entitled there just to support the judgment on any ground that was urged this court below, but there are many times we don't take the invitation.
Harrison F. Turner: Thank you Your Honors. I submit then under those circumstances that the evidence as submitted there was harmless beyond a reasonable doubt because -- and briefly, the defendant made two statements prior to trial admitting that he was a participant. The defense counsel's opening statement did not deny participation but rather raised the defense of consent. The victim positively identified the defendant at trail.She has had an opportunity for an hour and a half to be with him, 15 minutes of which were in daylight conditions. And lastly, when the defendant took the stand himself, his first question, he was asked if he had had intercourse with the victim on that day, his answer was yes.
Speaker: But Mr. Turner, what about the knife?
Harrison F. Turner: The knife.
Speaker: The knife, that's the usual.
Harrison F. Turner: The identification of the knife, Your Honor, was objected to by the defense counsel as not being a positive identification. He couldn't have said truer words, it was not. What the victim said was --
Speaker: But didn't he also object to it on the grounds that it had been seized pursuant to the warrant?
Harrison F. Turner: I beg pardon?
Speaker: Hadn't the knife also been seized pursuant to the warrant?
Harrison F. Turner: Yes, Your Honor.
Speaker: And didn't he also object on that ground as well as the other?
Harrison F. Turner: Not clearly, but he did object on the -- that it was not the --
Speaker: Well, they made a motion to suppress and that covered --
Harrison F. Turner: Right.
Speaker: -- and would have included the knife wouldn't it?
Harrison F. Turner: Yes, Your Honor, it would have. But what I'm telling about is before the jury of -- now this motion was not before the jury. My point is that the jury was impressed by defense counsel's motion. It was brought emphatically to their attention that the knife had never been identified as “The knife.” What the victim said was that it was that knife had one smooth edge and one sharp edge and that was “like the knife.” There was no positive identification of the knife. That is the position of the respondent in this matter. If there are no questions, that concludes my argument. Thank you.
Warren E. Burger: Counsel, do you have anything further?
Donald W. Huntley: I'd just like to --
Speaker: Can I ask General Turner a question? Do I understand you are not relying on the Rugendorf case in any way?
Harrison F. Turner: Rugendorf?
Speaker: Yes.
Harrison F. Turner: No sir.
Speaker: May I ask why?
Harrison F. Turner: Well, frankly, I didn't think I needed to, Your Honor.
Warren E. Burger: It has some interesting parallels, has it not?
Harrison F. Turner: That's what I -- That's was my conclusion. I suppose I didn't go to Rugendorf to start with because the first statement was the hearing had been granted. They assumed that was correct. I think that probably stirred me off. I apologize.
Donald W. Huntley: I would merely like to take issue with Colonel Turner's characterization of the present question as an extension of the exclusionary rule. We submit that the exclusion of evidence that was not only based on a false affidavit, but an unreasonably false affidavit, is more basic to the exclusion of evidence that resulted from an insufficient affidavit in some respect. And we further submit that the constitutional purpose would be best served by the exclusion of all evidence that was so introduced.
Warren E. Burger: Well, thank you gentlemen. The case is submitted.


Earl Warren: Number 38, George Lee Parker, Petitioner, versus O. B. Ellis, General Manager of Texas Prison System. Mr. Wozencraft.
Frank W. Wozencraft: Mr. Chief Justice and may it please the Court. This case comes to this Court by a writ of certiorari from a decision of the Fifth Circuit Court of Appeals which was handed down on August 29th, 1958. The opinion was written by Judge Cameron and Judge Reeves dissented. Rehearing was denied on September 29th of -- 1958, certiorari was filed on October 24th of 1958, and this Court granted certiorari on March 2nd, 1959. It also granted petitioners leave to proceed in forma pauperis and I was appointed as counsel for the petitioner by this Court. In -- on June 6 of 1959, petitioner finished serving his sentence in the Huntsville Penitentiary with time off for good behavior.
Earl Warren: What time was that?
Frank W. Wozencraft: On June 6, 1959, Mr. Chief Justice. That was three months after certiorari was granted and at that time, he was dismissed from the penitentiary. I informed the Court of this dismissal and suggested that there might be continuing legal effects of this conviction of his and that if the Court wished me to argue the possible applicability of the Pollard case, I would be happy to do so. The Court has informed counsel through its clerk to add mootness to the issues to be argued in the brief and in the oral argument. As in the briefs, I'd like to turn first to the question of denial of due process because I believe that this may effect in some way because -- which the Court may want to take in its discretion on the question of possible mootness. The question of course is as Your Honors are aware, the denial of due process under the Fourteenth Amendment, by denial to this petitioner and the right to counsel. The colloquy in which this occurred is set forth in the brief for petitioner on pages seven and eight. The Court called him for trial, asked if he was ready for trial. He replied yes. The court says, “Do you want a trial by jury or without a jury?” Parker says, “Well -- and it's immaterial to me judge, I don't have any attorney.” The Court, “Well, you're going to have to make up your mind. It is certainly immaterial to the Court?” Parker says, “I guess a jury then.” “Do you have a lawyer hired?” “No, I don't.” The Court then advised the petitioner that the law does not require the Court to appoint an attorney to represent a defendant and a -- when -- where he has a trial by jury and it's not the practice of this Court to appoint any. It's up to him to arrange for his own counsel. If he wanted a suspended sentence, they would arrange perhaps for him to have counsel as to that particular question but not as to the merits. And Mr. Parker said, “Well, he didn't have a lawyer. Alright, he's ready for trial.” It is the position of petitioner that under the long established line of cases of this Court in the cases such as Johnson versus Zerbst in 304 U.S. and in Uveges versus Pennsylvania in 335 U.S. that this was certainly not a knowing denial of the right to counsel. The trial which -- which succeeded this --
Earl Warren: (Voice Overlap) May I ask before you get to that? What is the significance of this statement if you want to apply for a suspended sentence, you let me know and I'll arrange for a lawyer to help you with that part only? Is that -- is that implied with -- he can have a lawyer if he pleads guilty?
Frank W. Wozencraft: There is a special statute in Texas, Your Honor, that says “As to a suspension of sentence plea,” when he wants a suspended sentence that he can -- he can obtain counsel for it. I believe this is whether or not he has pleaded guilty.
Earl Warren: But that can only come either after he's convicted by a jury or after he pleads guilty, is that right?
Frank W. Wozencraft: Yes, definitely. So that there is a misstatement by the Court, a clear denial of any counsel to be provided by the court for this man, in this jury trial.
Felix Frankfurter: Can you --
Charles E. Whittaker: (Inaudible)
Frank W. Wozencraft: No sir, I don't think that that can be claimed to be a specific request, but I don't believe that a specific request is necessary under the decisions of these case and you've -- of this Court in Uveges versus Pennsylvania and in Johnson versus Zerbst, particularly whereas here -- it must be apparent to the Court as matter proceeds that there is no possible way by which this man can know enough to protect his rights without a counsel.
Charles E. Whittaker: Was this not also suggested if I may ask. Was there any claim by this man before the Court of indigence and inability therefore to hire and pay a lawyer?
Frank W. Wozencraft: No sir, I don't believe that that appears before the Court, but again in the little town of Dumas, things like that, you could almost take judicial notice off. I don't mean that the Court really should if in this case, but there is a distinct absence of any question by the Court as to whether or not he could afford counsel as to whether he hadn't taken any steps to obtain counsel or could do so.
Felix Frankfurter: Well, just as a matter of curiosity, could you tell us what there is behind -- what policy or consideration behind this special rule in Texas that it'd be -- wants to have a -- suspend the sentence then he can have a lawyer after that?
Frank W. Wozencraft: Your Honor, I'm afraid that I would not be able to justify the course of the legislation (Voice Overlap) in creating that statute or --
Felix Frankfurter: I didn't mean --
Frank W. Wozencraft: -- to explain its motives.
Felix Frankfurter: I didn't mean justification but somebody must have had some reason to get something like that on the statute. Is it on the statute?
Frank W. Wozencraft: Yes, sir. It's still on the statute books, but fortunately, as I mentioned later in this brief, there has -- since the grant of certiorari in this case, an amendment to the Texas statute authorizing right to counsel in any felony case by anyone so accused. So that the provision for suspended sentence now, I suppose is a dead letter which will not be impealled -- appealed but fortunately will no longer may need it.
Earl Warren: Authorizing or requiring the appointment of counsel in all the cases.
Frank W. Wozencraft: Requiring it under the circumstances set out in the statute, Your Honor. This appears in my brief on page five where the amendment is -- the amendment is set forth that when it is made known to the Court at an arraignment or any other time that an accused charged with a felony is too poor to employ a counsel, the Court shall appoint one or more practicing attorneys to defend him, who will have ten days to prepare for trial. And it then goes on to say that in the bill, enacting this amendment that the fact that the previous article applied to capital cases and does not apply to ordinary felonies, creates an emergency and an imperative public necessity. That means that it must go immediately into effect upon its signature by the governor and this amendment is now in effect. As the trial progressed, it became perfectly clear and I think it will become clear to anyone who -- who reads this record that this petitioner was way beyond his debt, impossibly helping to cope with the intricate complex legal problems that were presented. The very indictment refers only to a forgery by him of the signature of -- Elsie Quattlebaum wherein fact it was a forged check drawn on Phoebe Quattlebaum by Elsie Quattlebaum. In this connection, it should be noted as Judge Reeves noted in his dissenting opinion that the Quattlebaums were partners-in-laws and that Elsie Parker -- Elsie Quattlebaum had been an enemy of his for years and it's set forth in an affidavit later coming in the habeas corpus proceedings and this fact was never made known to the jury. Now, and of course as -- as -- and be assured that Parker could have made this known if he'd had any idea of its significance, but he did not and it seems that it's the kind of a thing that a counsel certainly would have made known and would have tried to inquire further to find out just what was really involved in this case. How these checks happened to be written?
Charles E. Whittaker: Mr. Wozencraft, is it your argument -- Mr. Wozencraft, did not -- what about the testimony of the young lady at the bank who said that this man admitted to her that he -- claimed to her that he had been authorized to sign Elsie's name to these checks? Didn't -- isn't there a testimony like that?
Frank W. Wozencraft: Yes, sir. There is testimony that he was authorized to sign the checks.
Charles E. Whittaker: He told the young lady at the bank he was.
Frank W. Wozencraft: Yes, sir. That's right. And this is testimony incidentally which even though it is just hearsay, raises what we regard as an affirmative defense on which this petitioner was entitled to an instruction of the jury, the possible defense of a authority which is an essential ingredient of the crime of forgery is that it be without lawful authority. Here is another situation where an error of the judge in the trial is highlighted, and one which competent counsel should have been able to call attention to. There is also, Your Honor, a statement in this record where the sheriff says that -- that Parker admitted signing the checks and the -- this is one of the elements in this case that just amazes me more than any other. Here, we have the -- the square language or Article 727 of the Texas Code of Criminal Procedure which we set forth on page 5 in our brief that the confession shall not be used if at the time it was made, the defendant was in jail or other place of confinement, nor while he was in the custody of an officer, unless made in the voluntary statement of accused taken before an examining court or made in writing and signed by him after all kinds of warnings. And not only did this come in the testimony, it was relied upon by the Court of Criminal Appeals in affirming his conviction. It was stated by the Court of Appeals for the Fifth Circuit in denying his writ of habeas corpus and is referred to twice in the brief for respondent in this Court. Now, granted it came into evidence and certainly, it has been relied upon ever since then to the detriment of this petitioner and I submit that it would never come in if petitioner had had a counsel.
Earl Warren: Has there been any clause you could -- on that section by the courts prior to this case?
Frank W. Wozencraft: Your Honor, I'm not familiar with al the gloss but I -- it would take more than a gloss, it would take a rewrite to justify what happened here and it has not been rewritten.
Charles E. Whittaker: What I was thinking about the testimony of the young lady at the bank, had connection with what you've just now related. That testimony of the sheriff would appear on the face of it, it was direct opposition to the terms of the statute.
Frank W. Wozencraft: Yes sir.
Charles E. Whittaker: But was there not enough without it?
Frank W. Wozencraft: Well, Your Honor, as I say, there was no denial of authority anywhere in this evidence, anywhere, in fact, just a contrary. The only evidence in the record is the statement of the bank teller that he said he was authorized.
Charles E. Whittaker: That would -- must be an admission that he did do the signing.
Frank W. Wozencraft: Yes, sir. Coming of course from the other side and I think, though there's a great deal of difference in the testimony perhaps to that effect of the -- of the bank teller and of the sheriff who comes before the Court stating what has been told to him. Certainly, it is corroborating testimony and I cannot imagine that -- that the fact that -- that she herself, that's what the bank teller had said, would make a harmless error to have a corroboration of that testimony. Certainly, from an officer of the peace with whom the judge must have been well acquainted and the jury in a small community must have known. As the trial further progressed, the evidence came in from the sheriff that this man was under indictment in another case. I'm not familiar with the nature of that case. I don't know whether the indictment is still on the books having been told while this man was in jail or whether it is now been dismissed. But in any event, here again, is a direct violation of Article 732 (a) of Code of Criminal Procedure in Texas which appears on page 6 of our brief, which says that this indictment is not admissible to impeach and there is a little, it says -- and impeaching any person as a witness and perhaps there is a difference here between a man being a defendant and being a witness but it seems to me that if anything is worst, hears it to impeach a defendant than it had to impeach a witness.
Speaker: Did the judge -- the time it were directed, did the judge -- did the judge take any important stuff in the case?
Frank W. Wozencraft: Your Honor, that's a -- that's a point I wanted to come to. I believe that a reading of this record will make it clear that the entire attitude of this judge is summed up in his comment in questioning this man on whether or not he wants a jury. He says, “It is -- certainly immaterial to this Court.” There is no instance in this record wherein at any -- at anytime the judge intervened to protect this petitioner or any of his rights and I believe that the conviction of this petitioner was certainly immaterial to this Court. Under Texas law and I believe under due process where a man does not have a counsel, there is a duty on the part of the judge to be extra careful that he is protected in his rights. There was no move of this kind at any stage by the trial judge in this case.
Speaker: No request by the petitioner that he wanted counsel like other counsel (Voice Overlap) --
Frank W. Wozencraft: That's -- that's correct, Your Honor.
Speaker: (Voice Overlap) from the judge as to whether he wanted that with the request not have counsel.
Frank W. Wozencraft: No, sir. The only statement of the judge was “Do you have one?” And he says no. He's aware, “We won't give you one because you're not up for a capital appeal.
Speaker: Well, that would be on this colloquy, is able to give you (Voice Overlap) --
Frank W. Wozencraft: Yes, sir. That's correct. And it also should be noticed that -- that the sheriff testified at the trial that petitioner had been suffering from heart trouble and had been receiving medicine while he was in jail from the sheriff. He gotten it for him from the drugstore. In other words, this was a sick man at the time he was tried and as Judge Reeves says in his dissent, a reading of the record makes it pretty clear that he was a sick man. It certainly, lends support to his -- to his claim of that. If he did not make that claim at the trial, that is true. The Court of Criminal Appeals in saying that he really -- didn't need a lawyer, says that he didn't raise this point properly by a motion for continuance which certainly, it would have taken a lawyer to tell him how to raise. The sheriff's testimony verbatim on page 68 of the record on this point of illness, Mr. Justice Whittaker, is yes, sir, he's been in very ill health. I've had to buy him medicine and had to take him up and give him shots. I believe the doctor says he has heart trouble.
Charles E. Whittaker: That might mean the Court uses that, would it? I've had the finding that that doesn't give you a --
Frank W. Wozencraft: Well, Your Honor, I don't think there's any question about indigence. This certainly would have called into the attention of the Court, I agree with Your Honor. It is also called to the attention of this Court by the fact that it took him several months in the prison to try to obtain a copy of the record. He did so finally by getting one of his fellow convicts to fork up $25. That was the way he finally got the record in this case, and that is one of the circumstances which well may have affected his delay in obtaining a final decision in this case. It seems perfectly clear to a man, I hope it will to this Court that after considering the statutes here at least in the testimony that -- that here, we have issues so extremely complex that it would be utterly hopeless to ever hope that petitioner could have defended himself properly without the aid of counsel even if he had waived his right to counsel which we certainly urged that he did not, this record on itself shows a denial of due process because this trial itself was not a fair trial and it did not meet the common standards of fairness which this Court and every court has a right to expect from a trial court. It is the -- our contention that -- that this comes almost directly within the wording of the decision of this Court in Uveges versus the Commonwealth of Pennsylvania in 335 U.S. where the gravity of crime and other factors such as the age and education of the defendant. There, in Uveges, the defendant was young, here, he has aged and I'll. The conduct of the Court in the --
Earl Warren: How old was he?
Frank W. Wozencraft: He was 67 at the time of the trial Your Honor. And he had been ill from heart trouble for about two years. The affidavits of doctors appear in the record. And the complicated nature of the defense charged and the possible defenses thereto, render criminal proceedings without counsels, so aft to result in injustice as to be fundamentally unfair. The latter group holds that these are cases, the Betts versus Brady decisions, that the accused must have legal assistance under the amendment whether he pleads guilty or likes to stand trial, whether he request counsel or not. Only a waiver of counsel, understandingly made, justifies trial without counsel. The Fourteenth Amendment requires counsel for all persons charged with serious crimes, when necessary for their adequate defense in order that such persons maybe advised how to conduct their trial. I would like now if I may to turn or let me just wrap this up with -- with one statement. There was a charge by the judge to the jury, the -- the defendant Mr. Parker, the petitioner did not testify. He called witnesses on his own behalf and all he said was “Joe, tell him what you know about him.” And they said “Well, he's a sick man, a' pretty good man, a sick man. Then the sheriff and the -- the prosecuting attorney came in and asked one of them, “Did you ever get any hot checks from this defendant who has called you as his witness?” And the -- the witness said, “Well, yes I did,” to the judge. So that the hot check charged from the man that he himself had brought onto this stand was introduced into evidence. The --
Potter Stewart: This trial was in rural community or --
Frank W. Wozencraft: Yes, sir. In the town of Dumas, Texas and Moore County. It's in the panhandle north of Amarillo but quite away.
Hugo L. Black: What's the population?
Frank W. Wozencraft: I don't know exactly, Your Honor. I would guess 5000. I've been through it once but I didn't feel any incentive to stay very long. In the charge to the jury, the judge did not raise any possible affirm -- affirmative defenses or a request to any special consideration of them and the jury verdict as might not be surprising in view of the previous convictions as to which testimony had entered the record, and the other elements of which I've just spoken was a resounding guilty. The possible sentence for forgery is two to seven years, The jury recommended a sentence of seven years, the maximum. It is that penalty which petitioner served his sentence under and was finally discharged with time of for good behavior on June 6 of this year.
Potter Stewart: How --
Charles E. Whittaker: Are you going to discuss the question of mootness?
Frank W. Wozencraft: Right now, Your Honor.
Charles E. Whittaker: Alright.
Frank W. Wozencraft: As I say in the brief, this is a situation where if -- he had had counsel to guide him through these procedural requirements, and let him know what he was supposed to do in his habeas corpus petitions. The record is full, correspondence between him and the clerk of the U.S. District Court where he hasn't sent the right documents or needs other documents. A tremendous amount of time was consumed by that process because this man simply did not know what he was supposed to do, but he filed his petition for habeas corpus with the (Inaudible) Court of Criminal Appeals, very promptly after he entered prison and he has been working on that petition through the entire time he was in prison, Now when he did finally finish serving his sentence on June 6th, it was more than three years after he applied to the District Court for a writ of habeas corpus, more than seven months after his petition for certiorari was filed and more than three months after it was granted by this Court. If he had had counsel, there would have been plenty of opportunity for this Court to decide his case last term while he was still in prison. Even without the -- the time which was required for certiorari and I'm certainly familiar with how long it takes in forma pauperis record that were put there with nine difficulties to make the round, stil, four and a half months elapsed between the time that he filed his petition and the time it was granted. And any rushing up of the process, anywhere along the line and he could have gotten the ruling of this Court before he finished serving his sentence. Or even if he'd slugged the guards and sacrificed his term time off for a good behavior, he'd still be there and we would be talking solely about the points that I've just finished discussing. However, he did get out and there's no denying that there is a close question here about whether the Court which clearly had jurisdiction at the time it had granted certiorari has lost that jurisdiction simply because he is finished serving his sentence. It is the contention of the petition --
Felix Frankfurter: Why is it merely whether that court has lost jurisdiction with whether this Court has it?
Frank W. Wozencraft: Sir, when I said -- I -- I meant to ask whether this Court has lost jurisdiction which it clearly had when it granted the petition for certiorari and it is our contention that it does for two reasons. One, the Court traditionally has power, always has had power to issue its orders and its writs as all the date while it still had jurisdiction when there are matters which have taken place after that jurisdiction attached, such as the death for instance of one of the parties. The plea of abatement, the abatement which would terminate jurisdiction can be overcome by the Courts entering the order nunc pro tunc as of the date when it was ripe for decision after the court's jurisdiction had attached. We submit that in this sense --
Felix Frankfurter: What cases are those?
Frank W. Wozencraft: Well, the case of Mitchell versus Overman, sir of -- of this Court, 103 U.S. 62, Your Honor dealt with the right of an Iowa court to which -- which took -- at the Iowa state court which took a case under advisement and then while it was under advisement, one of the parties died. This is on 26 of my brief, Your Honor.
Felix Frankfurter: We had a case of the case of an abatement because of the Judge Advocate General (Inaudible), do you remember that case?
Frank W. Wozencraft: Well, I noted in several cases involving federal officials, Your Honor, and the same principles apply except that there you have federal statutes --
Felix Frankfurter: But we didn't do it.
Frank W. Wozencraft: Well, yes, sir. That's correct. And not always does the Court ever have to exercise a discretionary power and this power is discretionary. But when you're talking about federal officials, you're dealing with the 1925 statute which provides for the substitution of new parties within a six-month period. And I think that -- that is pretty well discussed in the case of Schneider versus Buck in this Court in 340 U.S. where you held that because of a failure to comply with the statutory requirement, the action would have to be abated.
Felix Frankfurter: And ultimately, those are cases where the cause of action, where there was an -- an act -- an action still alive, it wasn't that the action was terminated with one of the parties there.
Frank W. Wozencraft: Yes, sir. That's correct. And here, we contend that there are continuing legal consequences that flow from any felony conviction are present in this case and by themselves, this would provide a thread of jurisdiction. But I don't believe we even have to reach that point, Your Honor, because in Mitchell versus Overman, this Court has fairly first stated that the question is whether or not the state court lost jurisdiction when this man died and that -- that its jurisdiction, whether you talk about abatement of parties or abatement of issue. It's pretty much part of the same horse and I think the decision of this Court in Mitchell versus Overman is precedent for the decision here. Now, let me emphasize again, sir, that this -- this power is a discretionary power. It is one which the Court is -- freely admit under no obligation to exercise. I also freely admit there had been many, many cases in which it has not been exercised. I would hope that this Court would perhaps see fit to exercise it more frequently beginning with this case. There was one case where it was --
Felix Frankfurter: Why you -- and you hope that?
Frank W. Wozencraft: I beg your pardon, sir?
Felix Frankfurter: Why do you hope that?
Frank W. Wozencraft: Because I believe, sir, that when a man has a felony conviction on his record, and when he fights his way up to get it reviewed, whether it's by this Court or whether it's by a Court of Appeals or any other court, I believe that that man should have the right to clear his record.
Felix Frankfurter: But this is the only way to clear it, is this?
Frank W. Wozencraft: Your Honor, this was the way which was open to this man at the time when he filed his --
Felix Frankfurter: I know --
Frank W. Wozencraft: -- petition of habeas corpus.
Felix Frankfurter: -- but this is the only way to clear it, is it?
Frank W. Wozencraft: There maybe other way, sir. I'm not familiar with -- well, you might bring a mandamus against a voting registrar or -- or something like that, but this is the way which he has chosen and this is the way as of -- of which this Court had jurisdiction at that time that it granted his petition for certiorari. Now, may I invite the attention of the Court to one case where in a habeas corpus proceeding, but involving the opposite side offense, this Court did use its power to issue a judgment nunc pro tunc and that is the case of Quon Quon Poy versus Johnson.
Charles E. Whittaker: Could that be done in a habeas corpus case though, Mr. Wozencraft?
Frank W. Wozencraft: Well sir, in that case, it was done Your Honor.
Charles E. Whittaker: (Inaudible)
Frank W. Wozencraft: In -- in the reverse direction. There, they remanded Quon Quon Poy to the jurist -- to the -- to the custody of a Commissioner of Immigrations who had already died.
Charles E. Whittaker: Well that's a little different thing. You've got the body of the person who's to be delivered still in existence, but here however, if this writ issued to this respondent, how could it be complied with? The writ would be, deliver up the body, he doesn't have the body.
Frank W. Wozencraft: Your Honor, he has already delivered up the body by turning petitioner loose. But as of the time when this judgment would be entered, as of the time when the order would run to him, he had the body.
Charles E. Whittaker: Well --
Frank W. Wozencraft: That's the whole basis of this -- this nunc pro tunc power of the Court. It would -- it's -- in this case, it so happens that there would be no need for further implementation of the order, the order would implement itself. It -- it has been implemented in effect after the time as of which the judgment would be entered.
Charles E. Whittaker: Could we get this man into some inconsistent to maybe severe position here? Suppose this writ were to issue on some basis, and it be thus held that this trial was illegal. Now then, he could be subject to trial again. And then the given even a greater sentence than before and even if given credit for the time he'd served, he'd still have to go back to jail, wouldn't he?
Frank W. Wozencraft: The maximum sentence was seven years, Your Honor and that's what he got.
Charles E. Whittaker: Well, he hasn't served that?
Frank W. Wozencraft: He did, sir, with time off for good behavior --
Charles E. Whittaker: That --
Frank W. Wozencraft: -- which is a statutory allowance.
Charles E. Whittaker: What's the answer to this -- is there --
Frank W. Wozencraft: Well, Your Honor, it's -- it's certainly is one which we've considered and it is our feeling that -- that he had served his sentence. I'm not certain of the -- of the statute of limitations but on the crime of forgery, unless it were told by all of this proceeding, that would take care of it.
Charles E. Whittaker: And always think it would be?
Frank W. Wozencraft: I'm afraid it might. It seems to me that he has, as I say, served his term in any event and by receiving credit for that time, would not be subjected to further sentence.
Charles E. Whittaker: You would be running -- taking calculated risk.
Frank W. Wozencraft: Yes, sir.
Speaker: Are you going to deal with mootness before you get through? That's what it is.
Frank W. Wozencraft: Well, that's what I'm hoping to be dealing with now, Mr. Justice Harlan.
Speaker: In other words, mootness -- I call its jurisdiction. I'm thinking about mootness in the sentence as to whether he can be denied his voting rights in Texas and should be on a continuing consonance to that, is he? In view of that case it cited that there are things to indicate that an out-of-state conviction will deprive in his voting rights.
Frank W. Wozencraft: Your Honor, there's no denying of the intermediate Texas Court without considering the arguments or the opinion in the Logan case has so held very peremptorily an election contest where they were considering that with several other disputed ballots. The Supreme Court of Texas has not spoken on this subject. I would submit that this Court should not decide whether or not it should exercise its jurisdiction by whether or not the Supreme Court of Texas would follow the Court of Appeals decision in its -- in the inferior state court or whether it would invoke the reasoning set forth in Logan versus United States which also appears in my brief and where this Court stated in common law and on general principles of jurisprudence were not controlled by express statute, giving effect within the state which enacts it to a conviction and sentence in another state, such conviction and sentence can have no effect by way of penalty or a personal disability or disqualification beyond the limits of the state in which the judgment is rendered. Mr. Justice Harlan, I will agree with you hardly and it's very difficult here to trace what the exact continuing legal consequence is of this conviction may be. But I will submit to this Court that any felony conviction inevitably has continuing legal consequences. In a decision for instance of a court whether or not to invoke -- well, or -- or a district attorney even of whether or not to invoke habitual offender statutes. The right to run for office goes with the right to vote in Texas. And while I don't expect Mr. Parker to be a candidate for governor anytime soon, this is part of his array of civil rights. A man who is convicted of a felony loses those civil rights that he may have lost them in some other fashion. I don't believe he'd be regarded as removing the legal consequences of this particular conviction on his record.
Felix Frankfurter: Your -- your argument is one draft on nunc pro tunc, makes finding specific disability resulting from this to be rather immaterial, it seems to me.
Frank W. Wozencraft: Yes, sir. I am prepared to make an alternative argument --
Felix Frankfurter: Yes, I understand that but --
Frank W. Wozencraft: -- that this will support jurisdiction as well --
Felix Frankfurter: Yes, I understand that.
Frank W. Wozencraft: But nunc pro tunc is a substitute --
Felix Frankfurter: Your main argument makes this immaterial.
Frank W. Wozencraft: Yes, sir. That is correct. If I may, I'm going to save the remainder of my time for rebuttal.
Earl Warren: You may.
William O. Douglas: And that nothing will test the scope of -- of the replacement of the fact -- remedy you know?
Frank W. Wozencraft: No, sir. There is not unfortunately. I wish there were.
William J. Brennan, Jr.: That aside from this enactment?
Frank W. Wozencraft: Yes sir, it certainly would.
Earl Warren: Mr. Pesek.
Leon F. Pesek: Mr. Chief Justice, members of the Court. It is the contention of respondent in this case, sir, that the real question before this Court embodies the question of whether the Court has lost jurisdiction because the question has in fact become moot as was discussed by Mr. Wozencraft. Certain things have happened. On June the 6th, 1959, petitioner was freed from all restraint and that respondent here and Mr. O.B. Ellis, who's the General Manager of the Texas Prison System, freed him, has been -- no longer has him in any type of custody or confinement. It is the position of respondent that the purpose of the great writ of habeas corpus is to be used by one who is unlawfully confined. Now throughout the record, petitioner asked for one thing in his application, to be freed from unlawful restraint and imprisonment. That restraint or imprisonment, lawful or unlawful, no longer exists. Calling your attention to Title 28, Section 2241 of the Code where it in Subsection (c) it states that, “The writ of habeas corpus shall not extend to a prisoner unless -- paragraph 3, he is in custody in violation of the constitution or laws or treaties of the United States.” If I may, I would like to briefly quote from the concurring opinion by Mr. Justice Stewart in the case of Heflin versus United States where he stated, “The very office of the great writ, its only function is to inquire into the legality of the detention of one in custody.” It is unnecessary to paraphrase here Mr. Justice Stone's penetrating discussion in McNally versus Hill, 293 U.S. 131, or to incorporate the thorough review of legal history there contained. It will suffice to note only the Court's decision -- Court's conclusion, excuse me, without restraint of liberty, the writ will not issue. Equally without restraint which is unlawful, the writ may not be used. A sentence which the prisoner has not begun to serve cannot be the cause of restraint which the statute makes the subject of inquiry. And I might add to that, that a sentence which has already been served is no longer a restraint which the statute makes the subject of inquiry. I should also like to call the Court's attention to the case of St. Pierre versus the United States which is a case almost identical in point to the case before us. There, Pierre -- St. Pierre was convicted of contempt of -- having contempt to court rather and was assessed five months in the penitentiary or in -- he was assessed five months in confinement and he asked for a writ of habeas corpus. And before this Court could decide the question involved, he had been discharged and the mootness question arose in that case and this Court held in that case that we are of opinion that the case is moot because after petitioner's service of his sentence and its expiration, there was no longer a subject matter on which the judgment of this Court could operate. A federal court is without power to decide moot questions or to give advisory opinions which cannot affect the rights of the litigants in the case before it and they're citing some cases. And the Court continued, the sentence cannot be enlarged by this Court's judgment and reversal of the judgment below cannot operate to undo what has been done or restored to petitioner the penalty of the term of imprisonment which he has served.
Potter Stewart: What do you do with the proper case on each?
Leon F. Pesek: If I may refer to my notes just a moment to refresh --
Potter Stewart: Don't bother, it's late. Do it during lunch time.
Leon F. Pesek: Very well, sir. In the case of Wales versus Whitney, 114 United States 564, in speaking of the writ of habeas corpus as this Court stated that its purpose is to enable the Court to inquire first if petitioner is restrained of his liberty. If he is not, the Court can do nothing but discharge the writ. There must be actual confinement or the present means of enforcing it.
Earl Warren: We'll recess now, Mr. Pesek.