Earl Warren: Number 695, Joe Robert Collier, Petitioner, versus United States. Mr. Spritzer.
Spritzer: May it please the Court. I should like to move the admission of Paul Bender of the District of Columbia Bar for purposes of arguing this cause on behalf of the United States.
Earl Warren: Motion is granted.
Dean E. Denlinger: May it please the Court.
Earl Warren: Mr. Denlinger.
Dean E. Denlinger: May it please the Court. This case arose upon the conviction of the petitioner, Mr. Collier, for violation of the White-Slave Act. He attempted to appeal his conviction to the Sixth Circuit. That Circuit dismissed his appeal as untimely. It is from that decision, that ruling of the Sixth Circuit that we are here. There are two independent alternative grounds for reversing that decision. The first of this is that the notice of appeal which was so labeled was in fact filed within time. The second ground was first urged by the Government itself in his brief filed last week and that ground is this. That clearly within time, a motion for bail was filed. This motion for bail in the Government's view and in ours did constitute a notice of appeal. The facts are these. The conviction was on March 24, a year ago. The motion for a new trial was made on April 2nd, nine days later. Three days after that, the District Court denied the motion for new trial. Seven days after that, the counsel for the petitioner filed a paper denominated notice of appeal. The rule involved is the Rule 37 of the Federal Rules of Criminal Procedure. That rule states and with the Court's permission I'd like to read just a few lines of that in plain and in unambiguous terms, the following. An appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from, but if a motion for a new trial or in arrest of judgment has been made within the 10-day period, an appeal from a judgment or conviction may be taken within 10 days after entry of the order denying the motion. In this case, the lawyer then appearing for the petitioner literally and very plainly complied with that rule as written. Within 10 days, specifically on the ninth day, he did file a motion for a new trial.
William O. Douglas: Well, where is that in the record?
Dean E. Denlinger: It's on page 11.
William O. Douglas: Thank you.
Dean E. Denlinger: And then, appearing on page 13 is the denial of that motion which followed within three days. Within seven days of that denial, that when -- again fairly within the literal reading of the Rule, then counsel for petitioner filed a notice of appeal. The reason given by the Sixth Circuit in finding that this -- that those appeal was untimely is simply this. The Rule 33, under the Rule, says motions for new trial must be filed within five days after verdict. The verdict was also on March 24th, the same day as the sentence. Hence, the motion for a new trial was untimely under Rule 33. I might add that the motion for new trial was not on grounds when we discovered evidence. And for that reason, the Court could not grant the motion for a new trial. The court did not give its reasons for denial at the time that it denied the motion, it simply said, "The motion is denied." The Court of Appeals, in agreement with some other Courts of Appeals, held that where a motion for a new trial is filed even though within the 10 days, specifically provided for, in Rule 37, the motion for a new trial does not in effect toll the operation of 10-day period and does not commence a new 10-day period within which appeal upon that --
William J. Brennan, Jr.: Mr. Denlinger, may I ask you? You and the Government agree that the motion for bail maybe treated as an appeal?
Dean E. Denlinger: Yes, sir. I believe.
William J. Brennan, Jr.: Why do we go into all of these? Why don't we just send it back and tell the Court of Appeals to adhere in the --
Dean E. Denlinger: We'd be very please to do so if the Court agrees with both the Government and with myself.
William J. Brennan, Jr.: What was the suggestion?
Dean E. Denlinger: The suggestion was that since the Government on this newly discovered ground, very newest ground, feels that the case should be sent back and if I agree on that ground, yes I do, why not simply sent it back? And my answer was, I'd be very glad to do so if the Court concurs in our agreement.
William J. Brennan, Jr.: Then, we're talking about --
Dean E. Denlinger: He was (Voice Overlap) --
William J. Brennan, Jr.: -- what?
Dean E. Denlinger: If this Court concurs in the position of both Government and myself, I should be very happy to have the case remanded and the prior judgment vacated.
William J. Brennan, Jr.: Oh well, I gather if that's right, if that motion for bail is to be treated as a notice of appeal and we don't have to get into all of those business of -- about the motion to (Voice Overlap) --
Dean E. Denlinger: Exactly.
Byron R. White: But the question still remains whether the -- whether this Court would agree with either one of you that the --
William J. Brennan, Jr.: Or both of them.
Byron R. White: -- that the -- or that both -- or both of you --
Dean E. Denlinger: Yes.
Byron R. White: -- that the -- that the Court of Appeals were stuck or the District Court or the Court of Appeals got stuck with that notice.
Dean E. Denlinger: That's correct. I accept the Government's intention on the newly various point. And --
Potter Stewart: The Government doesn't quite conceded a way, do they?
Dean E. Denlinger: No. They don't confess error and while they may not urge it, at least they endorsed holding of motion for bail to be a notice of -- a notice of appeal.
Potter Stewart: That they're -- they -- as I read it, they choose their language rather carefully and they say this Court might properly --
Dean E. Denlinger: Yes sir.
Potter Stewart: -- reached that conclusion, they don't say --
Dean E. Denlinger: That's correct.
Potter Stewart: -- that that is the conclusion that they reached, they don't really urge that one.
Dean E. Denlinger: Yes. I find myself in a somewhat unusual position that's written somewhat instead of the law review, that particular section of the brief.
Potter Stewart: Yes. Including -- they even have a footnote?
Dean E. Denlinger: Yes. Well, I do think that both are -- both grounds are good solid support for reversal and with that -- in any way, detracting from the soundness of the point urged by the Government. I think that the original ground urged in my brief is even sounder. And I (Voice Overlap) --
William J. Brennan, Jr.: Well, this I find -- I frankly don't follow, if the motion for a bail bond is a notice of appeal --
Dean E. Denlinger: Yes.
William J. Brennan, Jr.: -- then how can it be sound? If it is a notice of appeal, you are in time, you're entitled to argue on the merits, period, isn't it?
Dean E. Denlinger: That's correct.
Potter Stewart: But it's equally clear that the application for bond was not denominated or intended by the -- by your -- by the petitioner as another scope here, wasn't it?
Dean E. Denlinger: That's correct. Clearly was not intended to be a notice of appeal.
Potter Stewart: And it didn't have -- it's also clear that it didn't contain most of what is required to be in it, in the notice of appeal (Voice Overlap) --
Dean E. Denlinger: Yes. Six of the elements as the Government so points out required to be contained or not present.
Speaker: Is this problem within period of the Rule?
Dean E. Denlinger: The problem of timeliness has been, the question nearly raised has not been, except to this extent, that new rules do not require nearly as many elements to be contained in a notice of appeal. It's still to be -- be active either (Inaudible) I would like to add since we're talking about the ground urged by the Government. One authority that the Government does not cite, that is Rule 52 or the Rules of Criminal Procedure. Rule 52 says that if there is a defect, error or irregularity which does not affect substantial rights, such defect is to be disregarded. Now, I think this is clearly applies to the elements missing from the notice of appeal and reinforces the arguments and authorities urged by the Government. Returning into the first ground, the Rule as I said it previously, is plainly written, is I believe exceptionally and ambiguous, and was literally complied with by counsel. This I feel should be enough. However to go further, the history of the motion indicates that the draftsman of the Rule, the predecessor rules, knew how to say timely or seasonable. This was found in the Rule 3 of the prior rules that the draftsman engaged in drafting the current rules, those about to be superseded, also knew how to say timely for -- they did so in the first draft. And if that the draftsman of the rules which now superseded knew how to say timely, there would have been no problem when they're saying so. The Government in its brief points out that there was an intermediate draft of present Rule 37 (a) (2) which is worded somewhat differently than the first draft. However in both cases, the draftsman of the Rule clearly knew how to say timely and clearly, this requirement was eliminated from the rule which was put into effect. Now, not only is a rule plain, its history, now it supports it. The policy set forth in the rules themselves and clearly divided in decision of this Court supports a liberal reading of the timeliness provisions as well as the provisions laying the form. This policy runs through decisions of this Court, both with respect to form of notice of appeal and timeliness. The Government I feel appropriately follows this policy in urging that formalities we overlooked in finding that the motion for bail was adequate notice of appeal. It does not, I feel, give appropriate attention to that policy in its urging that a notice of appeal so dominated was filed on time. This policy is contained first of all in Rule 2 of the rules themselves. Rule 2 says that the rules are to be interpreted to deal simplicity, to deal fairness, and expeditious proceedings. To be fair, certainly includes not misleading the counsel in understanding the rule. The attorney who filed this notice of appeal did as I say precisely the following. It could hardly be considered fair to have this counsel -- to have this petitioner find himself out of court after such a clear compliance with the letter and the rules themselves. It certainly is not conducive to simplicity to have such an unneeded and somewhat unexpected complication imported into the rule itself, a complication being that on a timely motion tolls the running of the 10-day period allows dismissal of a new one.
Speaker: (Inaudible)
Dean E. Denlinger: Well, that's -- I feel creates no problem at all. Under the five-day limitation the Court is required to deny the motion. Now the Government says, it's not really denial, it's a dismissal. But I think that's a quibble which is not consistent with the spirit of the rules. The Court would deny it -- would have to deny it, there's no choice. This would -- therefore, not in any way interfere with the proper administration of Rule 33 that governing motions for a new trial. The Government says, "Well, this is not too good because it would create a self-granting the extension of a notice of appeal." I think there are two argue -- two answers to that argument. First of all, if the rules want to provide a self-granting extension, certainly there's no harm. Secondly, there is no temptation for abuse present if this is in fact the case. It is far easier to file a notice of appeal than it is to file a motion for a new trial. The temptation for a lawyer to file a motion for a new trial so he get more time would be also impossible. It's hard to imagine that exists. For that reason, I feel that the harm urged by the Government and by the Third Circuit would just -- just does not exist. The ground urged by the Government in this respect is that of harmonizing the rules. For the reason, I've just stated, I don't believe it creates any disharmony. And furthermore, I believe that that is an insubstantial consideration if that consideration afflicts with the policies of the Act, fairness, simplicity, and expeditious hearing. The basic policy that I think pervades both of the issues before this Court is that of referring direct appeals over collateral proceedings. This policy has been recognized expressly in the Bertone case in this Court and the principles involved in that policy have been followed in the Corey case, the Fallen case in this Court, the Boruff case in the Fifth Circuit, the Calland case in the Seventh Circuit. These are various settings, all portraying a clear application of that principle and a principle which is solely based not only on the rules themselves, Rule 2 and Rule 52 of the -- but on a cognizance approach and a proper interpretation of such a basic and important right as preserving the right to appeal. I'd like to reserve the remainder of my time for rebuttal.
Earl Warren: You may Mr. Denlinger. Mr. -- we'll conclude this case today so you may -- I mean at this setting, so you may continue it, proceed with your argument --
Paul Bender: You will not take --
Earl Warren: Yes, yes.
Paul Bender: -- till lunch break. Mr. Chief Justice, may --
Earl Warren: Mr. Bender.
Paul Bender: May it please the Court. I'd like to address myself first to the suggestion that the Court need not reach the question of the effect of an untimely motion for new trial in this case because in the filing, within the 10-day period of a motion for bail which does amount to a notice of appeal. It is argued that the Court might and should find that in -- consistently with the spirit of the rules that this document which is on page 10 of the record does amount to a notice of appeal. The document recites that the defendant comes in person and moves the Court to fix a reasonable bail, pending a final determination, an appeal for final adjudication in this action. Now, the document doesn't contain several of the required elements of a notice of appeal as set out by the rules. But it does contain we believe the one significant essential element and that is declaration in writing, in a writing filed with the court of the intention to appeal. The other elements such as the settings, and the place of confinement, and the name of the case and the name of the lawyer, name of the lawyer was in this one, do not at all affect the substance of the motion. Those are obviously understood by the Government and the case and by the law -- by the court. The essential element of a notice of appeal we believe is the declaration of an intention to appeal within the 10-day period, and that was clearly done in this case. The lower courts have, on numerous occasions, treated documents which don't amount to notices of appeal as formerly amounting notices of appeal -- as notices of appeal, because they have contained that single element of a declaration of an intention to appeal, letters, informal letters written to the court or to the clerk by prisoners have been deemed to be notices of appeal.
Tom C. Clark: What you say now is that a little stronger as I read it -- what you say in the brief.
Paul Bender: Yes. In the brief, we say the court might on full consideration receive really no reason why the court should not call this to be a notice of appeal. We can't see any prejudice which would occur to the Government, to the -- to defendants or to the fair administration of the system if these were deemed to be a notice of appeal. On the other hand, we think it is a little inconsistent with that -- with the rules to demand all the precise requisites of a notice of appeal as set out in the rules. And we do note that the new rules cut down on those required elements a little bit which seems to be consistent. Some of the -- the new rules require that the notice of appeals -- of appeals should specify the party taking the appeal, the judgment order apart thereof appealed from, and shall name the court to which the appeal is taken. It doesn't require the place of confinement, for example, of the address of the lawyer. The only conceivable part of that I should think which should be required in a notice of appeal is the judgment order apart thereof appealed from. But there's no question in this case as to what that was. There was only one judgment if it was the judgment of conviction. And I can't really imagine that they could have been, in the case like this, any ambiguity about what he was appealing --
Potter Stewart: This amount to a confession of error or doesn't it?
Paul Bender: Well, to say it's a confession of error on -- would indicate that we think the Court of Appeals made an error. I'm not sure we can say that because I'm not sure this was called to the intention of the Court of Appeals. For example, it wasn't called to our attention until the record was sent up to this Court after the petition for certiorari had been granted. At the time the petition was filed and granted, this document was not in the records sent up to the Court. We don't know whether this called to the attention of the Court of Appeals, so far as we can tell it was. In those circumstances, we -- it doesn't seem seemly the call it a confession of error --
Potter Stewart: You've taken --
Paul Bender: -- in the court below.
Potter Stewart: You've taken this point one little baby step by a time? You asked us first to remand the case to the Court of Appeals to let them consider whether or not this application for bond was a notice of appeal without any indication that you wouldn't oppose any such construction of it there. And now the -- here in your brief you say, “With -- the Court might do it”, and now in your oral arguments you're saying a little bit more. Now I wondered if eventually you're going to end up with a confession of error.
Paul Bender: Well, it doesn't bother me to call it a confession or I just didn't want to suggest --
Potter Stewart: Certainly, how long?
Paul Bender: -- that the Court of Appeals had done anything wrong. One -- Mr. Justice Stewart, I don't think we suggested in the first document filed that we would oppose this construction of the court below. We did suggest that --
Potter Stewart: You couldn't?
Paul Bender: We did suggest at that stage if the Court might remand it to the court below because it seemed the question which could appropriately be considered by them in the first place since it amounted to the interpretation of the document. The Court however granted the petition for certiorari and set the case for argument. In those circumstances, we see no reason why this Court itself can't construe the document.
Potter Stewart: Well, except you filed that -- you filed that motion after their petition for certiorari had been granted --
Paul Bender: That's --
Potter Stewart: -- and the case had been set for argument, then you came in and asked us to remand it to the Court of Appeals without making any clear -- without making clear analogy, we wouldn't oppose that construction on the paper down to the Court of Appeals.
Paul Bender: Well, I suppose we didn't make it clear. We would not oppose. We didn't suggest that we would.
Abe Fortas: Mr. Bender, I think so far as I'm concern, remember what I'm interested in is a question that's capable I think, a very simple answer here? Is it the position of the Government that you would not oppose action by this Court which will necessarily and certainly and not debatably result in assuring this right of appeal?
Paul Bender: That's true. We would not oppose that.
Abe Fortas: That is your position.
Paul Bender: That is --
Abe Fortas: That is your position.
Paul Bender: That is our --
Abe Fortas: I mean, we may have put it in.
Paul Bender: Yes.
Abe Fortas: Right.
Paul Bender: We do not oppose the remand over this case.
William J. Brennan, Jr.: You mean, that it was really (Inaudible)
Paul Bender: It seems we think it is a sensible course of action for the Court to take. We think the alternative would be to insist that all the minutiae of a notice of appeal or to invent now some rule about how many of the elements of a notice of appeal has to be present, that doesn't seem to be a sensible course to take. The important thing it seems to us is that within the 10-day period, the defendant state, in writing to the Court or to a document which will reach the Court or the Government or both, that he intends to appeal and this defendant did that. Now, he didn't intend it to be a notice of appeal, that's true, but that doesn't again seem to make any difference. He did --
Byron R. White: (Inaudible)
Paul Bender: Excuse me?
Byron R. White: I don't suggest (Inaudible) invention itself is a --
Paul Bender: Our position?
Byron R. White: Yes.
Paul Bender: No, I don't think so Justice White. It is a --
Byron R. White: Oh, it isn't as much invention to saying that all -- that's all the notice of appeal needs, saying that it takes two more things.
Paul Bender: No, because you have a line of decisions in the lower court stretching over the course of the years holding that similar documents do amount to notices of appeal, including one case, the O'Neal case.
Byron R. White: Well, he doesn't -- that doesn't -- making these inventions.
Paul Bender: Well, it's not as though we were inventing it in this Court now --
Byron R. White: (Voice Overlap)
Paul Bender: -- for the first time.
Byron R. White: Yes.
William J. Brennan, Jr.: I wonder if there's an analogy, I thought frequently you get a petition for (Inaudible) that we treated as petition for (Inaudible)
Paul Bender: Yes, except this is not -- this isn't even a petition addressed to the Court which is going to give the relief. This is a purely formal notice which you file in the District Court. And the whole purpose of which is to signify your intention to appeal and the people who --
Tom C. Clark: That position just filed a motion for bail?
Paul Bender: No, not -- not just the motion for bail. It would have to be motion for bail pending appeal.
Tom C. Clark: Right there upon it?
Paul Bender: This is -- yes, motion for bail pending appeal. That to us Justice Clark is the line. You got to show an intention to take the errors in the judgment to a higher court. If you merely show --
Tom C. Clark: (Inaudible) that the file was -- have to take the bail, I suppose, you're going to take it out, otherwise they don't (Inaudible)
Paul Bender: Well, if it were solely a motion for bail pending determination of the motion for new trial and said nothing about an intended appeal, we would urge that that was not a notice of appeal. You got to draw some kind of line and the sensible line seems to us to be a signification of intention to go to the appellate court and a motion for bail pending appeal in this case as in the O'Neal case, a bond, an appeal bond actually filed with the court, should it seems to us be held to be a proper substantial notice of appeal. In those circumstances, we think that there is notification for the Court to resolve the question on which the Court granted certiorari in this case and that is the effect of an untimely motion for new trial on the running of the time to appeal. The Court granted certiorari in the case on October -- on October 25th of last year.
Tom C. Clark: That is afterwards.
Paul Bender: Four months after that time, the Court on February 28th of this year, the Court promulgated rules which were going to effect on July 1st of this year which make it clear behind any doubt that an untimely motion for new trial has no effect upon the running of the time to appeal. This question indeed was before the Court in 1961 in Lott against United States and the Court didn't decide it there but noticed the question, noticed some difficulty in it, and suggested that the question should be resolved not judicially but in the course of judicial decision but by the rule-making process. That's precisely what has been done. It has been resolved by the rule-making process consistently with the position which five of the six Courts of Appeals have taken under the 1946 Rule that is an untimely motion has no effect.
Tom C. Clark: Do you think this failure to treat this is as a notice of appeal would be a denial of equal protection under Justice Black's opinion in the Griffin case?
Paul Bender: I don't see why. Government has no right to equal protection, I would think.
Tom C. Clark: Isn't there one in the Fifth Amendment by --
Paul Bender: For the -- in favor -- running in favor of the Government?
William J. Brennan, Jr.: No, of course we haven't quite decided that.
Paul Bender: I suggest you to not reach that issue in this case.
Hugo L. Black: -- because, he just wanted to review an argument. I think he just wanted to review an argument.
Paul Bender: I think, as the Court said in Lott, the question should be decided by the rule-making process had now has been decided by the rule-making process and there seemed no reason to overturn the steady course of decision except in one circuit, that is the Tenth Circuit, that an untimely notice of appeal has no effect upon the running of the time for appeal and that sends this case as a fortiori from Lott that the Court shouldn't reach the issue. And indeed, we -- as we've said, there's no need to reach the issue in this case because there was a timely motion.
Speaker: (Inaudible)
Byron R. White: Which Rule to upset, isn't it?
Paul Bender: No, I don't think so Mr. Justice White because I don't think you're upsetting a rule to deem the motion for bail to be a notice of appeal. In fact, if you were to hold --
Byron R. White: Even if it doesn't contain what the Rule said?
Paul Bender: That's right. It doesn't contain what the rule says, it must contain but we know from Rule 52 which petitioner has cited that --
Byron R. White: So, we didn't -- don't follow that Rule?
Paul Bender: Well, but you see, you would be upsetting more if you held the other way.
Byron R. White: Alright.
Paul Bender: Because if you --
Byron R. White: Alright.
Paul Bender: -- insisted that a notice of appeal --
Byron R. White: Well, if (Voice Overlap) --
Paul Bender: -- contained all the elements, you'd be upsetting this whole line of cases which we cite in the brief.
Byron R. White: It's the choice of which rule not to call.
Paul Bender: Including this Court's decision in the -- this Court's notation in the Coppedge case that we've been very liberal with regard to what amounts to a notice of appeal. You'd have to upset that also whereas viewing it as a notice of appeal as wholly consistent with the Court's decisions and it doesn't lead you to inquiring to whether you should upset this other policy, namely --
Hugo L. Black: It seems to me, we might have upset Rule 2.
Paul Bender: To do what?
Hugo L. Black: To hold -- that this was not a restricted notice of appeal.
Paul Bender: I think perhaps you would. I think if -- it's most consistent of Rule 2 --
Hugo L. Black: Of course also, we wouldn't want to trigger such a harsh purpose for the rule makers.
Paul Bender: I should think so, right, I think it's most consistent with the Rule 2 to view this a notice of appeal.
Tom C. Clark: What if this don't follow the date of the new rule, is that it?
Paul Bender: No. We don't want you to move forward the date of the new rules. We think that the -- the provision in the new rules that an untimely notice of appeal has no effect has been the rule, is indeed it has been in five of the six circuits, which have considered it since 1946. It was the Rule before 1946 without any doubt exclusively and it's the only Rule that makes any sense because if you held that an untimely motion for a new trial tolled the time for appeal, then you would have a rule which said that a -- only frivolous document of argument didn't make, didn't have any impact, would have an impact for the purpose of extending the time to appeal. This is contrary to the motion which this Court has repeated many times that you can't enlarge times to appeal by taking frivolous useless steps below and that's what you do here if you filed an untimely motion for new trial. I would like to address myself to one last intention with regard to that issue which we don't think you ought to reach. And that is the suggestion that in some way defendants would be prejudiced by their reliance on the plain words of the Rule by filing an untimely motion for new trial and then assuming that they would get 10 days from the denial of that time to appeal. It seems that you -- defendant can properly rely upon the words of the Rules because if he read the rules, he knows that the motion for new trial is untimely when he files it on the ninth day. The only way he could fail to know that is that he only read the rules about time to appeal and didn't bring the rule about the motion for new trial which seems to be unlikely. So if he reads the rules, he knows that on the ninth day when he files his motion for new trial that's untimely. It doesn't seem to me he can honestly think that that is going to prolong his time to do anything else because that itself is an untimely act. Secondly, there's no reliance in this case upon any court decisions construing the rule because the Sixth Circuit which is where this case wrote had a decision squarely in point holding that an untimely note -- motion for new trial does not extend the time to appeal. And thirdly, there isn't any reliance in this case such as you had in the Harris case or the Thompson case arising under the rules of civil procedure where the Court held where a defendant relies upon an affirmative Act of the District Court or the Government taken within the initial time to appeal and doesn't file his appeal because that Act signifies to him that he has more time than he shouldn't be prejudiced by that reliance. But in this case, there's no such reliance. The District Court did nothing during a 10-day period to suggest to the defendant that he would not have more time nor did the Government do anything within the 10-day period. So, it doesn't seem to us that there is in any sense any reliance here, and indeed there couldn't be any reliance in any case unless there had been such an affirmative Act. For those reasons we think that the decision of the Court of Appeals below that an untimely motion for new trial does not extend the time if it was correct. But we believe that there was a timely notice of appeal in this case that is the motion for bond on page 10 of the record and that the appropriate course would be to vacate the decision below and remand to the Court of Appeals, to hear the appeal on the merits.
Earl Warren: Remand -- remand the Court of Appeals for what purpose?
Paul Bender: To hear the appeal on the merits.
Earl Warren: Very well. Have you any rebuttal Mr. Denlinger?
Dean E. Denlinger: Briefly. I would repeat that I think both grounds for reversal are solid substantial grounds and I don't think either requires or submit any denial or reversal or restriction of the current rules or the proposed rules. It seems to me in the first place that Rule 37 very plainly sets forth what the time is to be. And that the reliance of counsel in this case upon Rule 37 was almost induced by the very exceptionally clear language of Rule 37. The fiction that every person is presumed under the law or even every lawyers presumed under the law is just that, a fiction. In this case, a lawyer did precisely do that and I don't believe that the unhappy client should be made to suffer for that. The fiction that the lawyer must have known about, the DeRocco decision in the Sixth Circuit is also I submit merely a fiction. The language again does not conflict with Rule 33 in any but a literary sense for the reasons I gave earlier. I don't think that the Government has yet stated any disagreement with the policy which I find in the rules on decisions of this Court and that is that direct appeals are to be favored. And I want to add simply one citation of authority if I may on the point the Government raises, that the notice -- that the motion for bond should be considered a notice for appeal. That is to this Court's decision in the Coppedge case, it's not cited in either brief, I'm sorry to say, is 369 U.S. 438.
Earl Warren: (Inaudible)
Dean E. Denlinger: 369 U.S. 438. At Footnote 5 of that decision on page 442, the Court indicates that it favors a liberal view of papers filed by an incarcerated defendant in a criminal case and cites perfectly all the cases cited by the Government with the apparent favor and I thus disagree with counsel for the Government that this is at least not today a new invention that has persisted for some time, it was recognized with this Court in the Coppedge case and I think is wholly consistent and wholly faithful to particularly Rules 2 and Rule 52. Thank you.
Earl Warren: Mr. Denlinger, on behalf of the Court, I should like express its appreciation to you for having accepted the assignment to represent this indigent defendant. That's a real public service in our judgment and we're all grateful to lawyers who do that, so we express our thanks to you Mr. Bender, our thanks for the diligent and fair manner in which you represent the Government in this case. We'll adjourn.


Earl Warren: Number 490, John L. Brady, petitioner versus Maryland. Mr. Bamberger.
E. Clinton Bamberger, Jr.: Mr. Chief Justice, may it please the Court. This was an appeal more from a mandate of the Court of Appeals, and from its decision. The Court of Appeals of Maryland agreed with the Petitioner's contention in that Court that he had been denied due process when the prosecutor withheld a confession, which the petitioner's accomplice had made to the prosecuting authorities, to the police. But having agreed that due process of law had been denied to the petitioner, the Court of Appeals then by its mandate, respected the relief to a new trial on the question of punishment only. It did not disturb the verdict of guilt, the verdict of guilt of murder in first -- of murder in the first degree. And the Court of Appeals would by its mandate send the case back to the Trial Court for the plaintiff, if he would so elect, to have a trial before a jury with guilt already determined and only for the purpose of determining whether the jury would say he is guilty without capital punishment and so respect the court's power to impose capital punishment or merely say guilty and leave the court free to impose capital punishment or to sentence to imprisonment for life. One fact, peculiar to this case, peculiar to Maryland and I think also to Indiana, but at the base of this case to which I would direct the Court's attention, is that in Maryland the jury in a criminal case is the judge of the law as well as the judge of the fact. And the Court's instructions to a jury in a criminal case in Maryland are advisory only, not binding on the jury, and the words of the Court of Appeals go to the jury merely as a means of enlightenment.
Potter Stewart: If that were not true would you have any case at all?
E. Clinton Bamberger, Jr.: Yes, sir I think I have a case, but I think I will have a more difficult case. I think then we would have a more basic consideration of whether the depravation of the constitutional right is the violation of such a thing so sacred that we are not going to leave any Appellate Court to try to sift out what the affect of this might be.
Potter Stewart: But under the laws, it's understood by lawyers if not by juries in Maryland, it's clear that this man was guilty of the first degree murder, isn't it?
E. Clinton Bamberger, Jr.: Yes, sir. I --
Potter Stewart: He had murdered. He was participating in the – what was it, a robbery?
E. Clinton Bamberger, Jr.: He was participating in a robbery and there was homicide in the course of the robbery, and if the jury found those facts and they were -- some of them were denied by him in some respects and there was a contention made on appeal that the robbery had been completed before the homicide occurred, but there certainly were facts from which the jury could very easily find, aside from this confession, could very easily find that he had -- it was a felony murder and under binding instruction would be guilty. What had happened here was that a man named Brooks was murdered in the course of a robbery. The petitioner, Brady and his companion Boblit were arrested several days later. The petitioner was arrested first. He had fled to Cuba and then had returned, surrendered himself and was return to the Federal Bureau of Investigation Office in Miami. A day after that, as a result of some statements made by the petitioner in Florida, his companion Boblit was arrested in Maryland. Now statements were taken from both of these men. Of course the important statements are the first four statements taken from the Petitioner's companion, Boblit. In each of those four statements, Boblit said, I didn't commit the homicide, I didn't commit the killing, Brady did it. But after Boblit knew that the petitioner was in the custody of the police and after the police in Maryland had taken some statements from the petitioner, the police went to Boblit, the companion and they said, there are some discrepancies in these first four stories, which you have given us. Now he knows the police speak of discrepancies, he knows his companion is in the same jail house and he now makes a fifth statement, and in this fifth statement he, Boblit, admits that not Brady, not the petitioner, but he Boblit was the person who actually committed the killing. And one other significant thing about this fifth statement is that at the end of it, when he was asked to sign it, he refused to sign it, although he had signed the first four statements. These two men had separate counsels. In the course of preparing for trial, counsel for this petitioner asked the prosecutor for copies of the statements, not only made by the petitioner, but also the statements made by Boblit. The prosecutor gave to counsel for the petitioner only the first four statements made by Boblit. The four statements in which Boblit said, I didn't do it, the petitioner here Brady did it. He did not, the prosecutor did not give to the petitioner's counsel, nor inform the petitioner's council of the existence of the fifth unsigned statement, which at least in the one detail, the fact that Boblit, not the petitioner was the actual murderer corroborated the petitioner's defense.
Byron R. White: May I ask you this?
E. Clinton Bamberger, Jr.: Yes sir.
Byron R. White: [Inaudible]
E. Clinton Bamberger, Jr.: I think the importance of it for this argument Your Honor is that on these facts --
Byron R. White: [Inaudible]
E. Clinton Bamberger, Jr.: Yes, I think it would raise the same question and --
Byron R. White: [Inaudible]
E. Clinton Bamberger, Jr.: I don't know that it adds anything, but I did want to set the chronology, that the withholding occurred prior to this petitioner's trial, prior to the time when a jury found that he was guilty of first degree murder and my argument on the denial of due process is that when the Court of Appeals found that this withholding denied due process, that everything that happened from that point on was unfair, that this denial vitiates all that happened, at least all that happened after that and in some circumstances could even affect things that happened before. But here was a man who was deprived of what the Court agrees he was entitled too, prior to the time of his trial of guilt, and the Court of Appeals doesn't put him back there. They only put him back to a point after the jury has found him guilty. Now, if -- as Mr. Justice Stewart --
Byron R. White: [Inaudible]
E. Clinton Bamberger, Jr.: Yes, sir but I --
Byron R. White: [Inaudible]
E. Clinton Bamberger, Jr.: And this is particularly true in Maryland. This, if you had as in California a system where there are the two processes, the process of finding guilt and the sentencing process, and if as in -- if this case was in California, I would be hard put to make the arguments that I make here, because you have two separate processes, the process of finding guilt and the process of sentencing and you have a jury there bound by the court's instructions on the law. But this isn't so here and this is also, it's difficult to separate in this case, the argument, the denial of equal protection under the laws and the denial due processes of the law. But this is where the evil of the -- where the equal protection is denied, because the trial to which Brady was entitled was a trial with this information, and the Court of Appeals has said he should have had this when he asked for it. Before a jury with the right, not just the power, but the right to judge the law and the fact, and a jury with the right and the power to find him the guilty of first degree murder, guilty of murder or guilty of first degree murder but without capital punishment, guilty of murder in the second degree, guilty of manslaughter or acquitted, and this is not the trial he had. This is the trial that the Court of Appeals said he ought to have. It's the trial that every other defendant accused in similar circumstances in Maryland will have and then finally it's the trial which the mandate of the Court of Appeals said he isn't going to have and he'll never have.
Speaker: Supposing he had, had -- Brady had, had this statement before his trial, would it have been admissible at the trial on the issue of guilt?
E. Clinton Bamberger, Jr.: I think several questions would have arisen, Your Honor. Yes, I think it would have been admissible on the issue of guilt, because when the jury is judging the law, they could well consider that in our view of the law, the man who pulls the trigger is guilty of first degree murder and appellant --
Speaker: In other words under your law jury can really become a legislature ad hoc and say we don't like this going in your business, and we won't apply it to anybody who didn't pull the trigger, that's about -- I gather that's --
E. Clinton Bamberger, Jr.: They're a legislature ad hoc Mr. Justice Harlan or a judge ad hoc? They --
Speaker: More of a legislature I would say --
Byron R. White: Did the Supreme Court in here ask the Court to rule – wasn't it admissible on the issue of guilt and only -- it ruled that only to the punishment?
E. Clinton Bamberger, Jr.: They didn't rule that it wasn't admissible on the issue of guilt, they said it's relevant only on the issue of punishment, but that's where I say that is an error on this one.
Byron R. White: Do have to disagree with your own court [Inaudible] that Mr Justice Harlan was asking?
E. Clinton Bamberger, Jr.: Yes sir, except that I -- it seems to me they can say it's admissible on the question of the punishment without necessarily saying it's not admissible on the question here.
William J. Brennan, Jr.: Well tell me this Mr. Bamberger, the lawyer can expect instructions that some lesser offense might find him guilty of some lesser offense?
E. Clinton Bamberger, Jr.: Yes, sir the --
William J. Brennan, Jr.: I take it -- if that's so I take it the exclusion of this testimony then might indeed be prejudicial, might it not, under your curious system of jury, judge, the law? In fact, they might have believed that where they totally could find guilt of a lesser offense?
E. Clinton Bamberger, Jr.: They were instructed at page 42 of the record that they could find the Petitioner guilty of murder in the first degree without any restrictions on the punishment, guilty of murder in the first degree without capital punishment, murder in the second degree, manslaughter, it's at page 44 of the record, the first full paragraph, beginning in the middle of the page, five possible verdicts, second degree manslaughter and equivalent.
Byron R. White: Don't we have to disagree with your short statement as to the admissibility of this evidence? That should be [Inaudible]
E. Clinton Bamberger, Jr.: Yes, sir.
Arthur J. Goldberg: [Inaudible]
E. Clinton Bamberger, Jr.: Well I have to see the --
Arthur J. Goldberg: Page 70 of the record [Inaudible]
E. Clinton Bamberger, Jr.: Yes Your Honor, I was thinking of the Court's restrictive statement on the -- at the end and I don't think --
Arthur J. Goldberg: Under these circumstances [Inaudible]
E. Clinton Bamberger, Jr.: No, sir I think you really got it. In the one -- in one similar case which had come before the Court of Appeals, not by the same route, which this case took; this case came to the Court of Appeals of Maryland by its post conviction proceeding, but in a prior decision of the Court of Appeals of Maryland of Day versus State, two defendants were indicted for a felonious homicide. They asked for a severance. The severance was denied. Incriminating statements by each of them were admitted in evidence. The jury was instructed, well disregard what A says that incriminates B, and vice versa. This went to the Court of Appeals, on the appeal from the Trial Court's denial of the motion of severance and the argument was made that it makes no difference because both are involved in the felony murder and therefore both are guilty of first degree murder, but the Court of Appeals recognized in that case that the jury is the judge of the law. They recognized also that even through this evidence looking at it as a lawyer, purely as a lawyer, even though this evidence simply most directly effected the punishment, yet the failure of the court to grant a severance in this case amounted to such a denial of due process, that the cases were remanded for separate trials on both the issues of guilt and punishment.
William J. Brennan, Jr.: Mr. Bamberger, may I ask this looking at page 52? What was meant by the court in that opening sentence of the first full paragraph? The appellant's sole claim of prejudice goes to the “punishment?” Is this is a suggestion that the only thing before the Court raised by the appellant's right, and should not be that but only right?
E. Clinton Bamberger, Jr.: Yes sir and the petition -- this came up on a post conviction proceeding. The petition for post conviction release sought a new trial, set aside both the verdict of guilt and the sentence in an entire new trial. The appellant's argument I think was directed very strongly towards the fact that this evidence did go to the question of punishment. And in the appellant's brief in the Court of Appeals, I did make statements that the appellant was guilty of first degree murder. I was there really directing myself to an argument that even though it only goes to the question of punishment, it still amounts to a denial of a constitutional right. The question of what kind of relief ought to be afforded never came up, until at the very close of argument. As a matter of fact I had finished rebuttal argument and was at least moving to the chair, when the Chief Judge Burns of the Court said to me Mr. Bamberger, if we agree with you that due process has been denied, what relief would you want, and my response during then was that we were entitled to a whole new trial both on the question of guilt and of punishment. I think that what this sentence means is that my brief and my oral argument in the Court certainly was particularly directed to the fact that the evidence did effect only punishment, but then regardless of that, in a matter to --
William J. Brennan, Jr.: Well could you see what I'm reaching for?
E. Clinton Bamberger, Jr.: Yes sir.
William J. Brennan, Jr.: Is it possible that counsel at this -- a statement by a Court of Appeals that the only issue before that raised by the appellant goes to punishment and not to the guilt?
E. Clinton Bamberger, Jr.: Well, that would not -- that is not in accordance with the record because the post conviction petition sought a new trial, and to set aside the verdict of guilt and the sentence and a new trial, the relief -- this was a relief prayed in that petition and when it was once raised by the court, Chief Justice Burns specifically said, you just want a new trial of punishment or a new trial of guilt too and I said we think we are entitled to both.
Tom C. Clark: I thought you had said that there would be no offense of [Inaudible]
E. Clinton Bamberger, Jr.: The Court of Appeals of Maryland said there could be no verdict.
Tom C. Clark: [Inaudible]
E. Clinton Bamberger, Jr.: I think there is language in their opinion which suggests that, but I challenge the correctness of that because the jury could have found this man guilty of something less than first degree murder or could have acquitted him and the lower court's instructions recognized that and the state didn't object to those instructions.
Tom C. Clark: [Inaudible]
E. Clinton Bamberger, Jr.: The Court of Appeals, yes sir I think they did.
Tom C. Clark: As a matter of law?
E. Clinton Bamberger, Jr.: As a matter of law.
William J. Brennan, Jr.: Well there again I take it felony murder is an offense under your law?
E. Clinton Bamberger, Jr.: Yes sir.
William J. Brennan, Jr.: And yet I gather in the trial of the felony murder, the strange business of jury being judge of law and fact, it may nevertheless where the state's proofs would support a conviction of felony murder, because it is the judge of law and fact, nevertheless return a verdict which is not for felony murder.
E. Clinton Bamberger, Jr.: Yes sir.
William J. Brennan, Jr.: Is that right?
E. Clinton Bamberger, Jr.: Yes sir.
Speaker: If the statue had said I suppose, this is a felony murder, but the jury if it wishes can confine felony murders only to people who pull the trigger.
E. Clinton Bamberger, Jr.: Yes sir.
Hugo L. Black: That's about what a general verdict in a murder case means anyhow, isn't it, [Inaudible] government to appeal.
E. Clinton Bamberger, Jr.: And there it's a difference between the power and the rights.
Hugo L. Black: Yeah, but the language used is to leave the power there to do it?
E. Clinton Bamberger, Jr.: Leaves the power there, but in Maryland it is the matter of right too and the court has got to recognize that you --
Hugo L. Black: Legal right as well as a technical right?
E. Clinton Bamberger, Jr.: Well, yes sir, legal right is enough I think, but he is entitled to that kind of a trial. He is entitled to a trial regardless of what we may think of this system and this jury. He was entitled to that kind of a trial with this evidence available to him before that trial began and with the jury entitled to acquit him on this evidence.
Speaker: How many states of the union have got this kind of a statute?
E. Clinton Bamberger, Jr.: To my knowledge only Maryland and Indiana.
Arthur J. Goldberg: [Inaudible]
E. Clinton Bamberger, Jr.: Yes sir, several --
Arthur J. Goldberg: [Inaudible]
E. Clinton Bamberger, Jr.: Yes sir it has, yes sir it has been suspended.
Arthur J. Goldberg: [Inaudible]
E. Clinton Bamberger, Jr.: This rule has existed in other states. In the opinion of this Court in Nelson versus the United States, which is an opinion of some 130 pages, there is a review of the history of this and all of the states.
Arthur J. Goldberg: [Inaudible]
E. Clinton Bamberger, Jr.: Yes, I think principally in the Eastern counties and it still exists in Maryland and in Indiana. This was not a matter of the record. There was a bill strongly endorsed by leaders of the Bar as it was once in Illinois, in the current session of the Maryland legislature which I understand has died in a committee.
Potter Stewart: Mr. Bamberger, do I understand that -- then that in every felony murder case it would be hard for the court not to charge on the second degree murder and manslaughter as well as giving you a charge of felony murder?
E. Clinton Bamberger, Jr.: Yes, sir.
Potter Stewart: And is that the practice universally in -- where the only evidence is that there was murder committed -- the killing in -- while committing a felony and that's the only evidence.
E. Clinton Bamberger, Jr.: It would at least --
Potter Stewart: Is it still error for the court not to charge on manslaughter or second degree murder?
E. Clinton Bamberger, Jr.: Yes, so it would at least be error for the Court to confine its instructions to anything less than that.
Potter Stewart: Because I doubt -- as I read this last paragraph of the Maryland Court of Appeals opinion, what it does is -- as I understand it, is to say that the Trial Court did commit error in this case, because this was only a first degree murder case.
E. Clinton Bamberger, Jr.: To say that the Trial Court's instruction --
Potter Stewart: It doesn't say explicitly so, but it does say that --
E. Clinton Bamberger, Jr.: No, this is implicit in the Court's opinion. It had to say that.
Potter Stewart: And isn't that matter of Maryland law not Federal Law, and aren't we bound by what the highest court in a state says is the law of Maryland?
E. Clinton Bamberger, Jr.: I don't think it's said in those terms in this --
Potter Stewart: No, but implicitly I thought it should be the one.
E. Clinton Bamberger, Jr.: That--
Earl Warren: Is that a matter of first impression with the Court at this time in this case?
E. Clinton Bamberger, Jr.: Yes, Your Honor.
Earl Warren: It was?
E. Clinton Bamberger, Jr.: It was not argued at any point in the --
Earl Warren: It hadn't occurred in any other case prior to that for precise issue?
E. Clinton Bamberger, Jr.: I don't recall one Mr. Chief Justice.
Earl Warren: Mr. Malton -- Oh Mr. Jamison, excuse me.
Thomas W. Jamison, III: Mr. Chief Justice, may it please the Court. One thread follows throughout the proceedings in this case and that is that the defendant, Brady, the appellant here, has consistently and universally admitted that he participated in the robbery, in which Mr. William Brooks was murdered. During the preparation for the trial of the case in the Circuit Court of Anne Arundel County, Brady's attorney had a conference with the state attorney and in the judge's chambers and also with the counsel for the accomplice named Boblit and it appears on page 26 of the record, Mr. Wolfel, the counsel said, I recall I stated that in view of the fact that they took a jury trial, I wanted mine first, actually the accomplice didn't take a jury trial, then he went on to say and that the case would be limited to penalty for murder in the first degree. Question; well why would it be limited to that penalty sir? Answer; because that was absolutely no justification or reason or rhythm or rhyme for killing a man, and both of them were at least engaged in robbery or larceny and so forth.
Potter Stewart: What are you reading from?
Thomas W. Jamison, III: I'm reading from the bottom of page 26 of the record Your Honor.
Potter Stewart: Thank you.
Earl Warren: And who is speaking?
Thomas W. Jamison, III: This was the attorney, who represented Brady at his trial, referring to a conference between the attorney for the co-defendant or the accomplice and the court and the court's chambers. Discussing his strategy prior to the trial and he says at the bottom of the question number 25 and that the case would be limited to penalty for murder in the first degree. Over on page 27, there is some further discussion at that point. Now this was the attitude of counsel before the trial started.
William J. Brennan, Jr.: Now let me see if I followed that. I remember under my state practice, it was not where the jury assesses the penalty of death or life imprisonment, and where the recommendation of the jury is binding on the judge and then frequently a case would be tried solely on it, they persuade the jury to bring in life rather than death sentence. And there would be no legal controversy at all over the question of guilt or innocence. Now are you suggesting that practice was the way this case was tried, that defense counsel wasn't raising the question of guilt or innocence?
Thomas W. Jamison, III: Your Honor, the case was tried of course under a plea of not guilty, but I do submit that under -- the record as shown in the record here, the case was not really tried on a question of guilt or innocence.
William J. Brennan, Jr.: But that's what I'm asking?
Thomas W. Jamison, III: That's true.
William J. Brennan, Jr.: Yes.
Thomas W. Jamison, III: And I think that is supported by a comment made by the Court in its instructions, which appears on page 42 of the record, near the top of the page, where the Court says, I think it's the third sentence, “And the Court feels that even though there has been a confession by a counsel for the defendant, that this [Inaudible] is guilty of murder in the first degree without capital punishment,” the court filled the jury and order and so forth.
William J. Brennan, Jr.: Well I -- to me what that's saying is the judge says he doesn't care how the defense counsel wants to try it, and he had to instruct the jury that they might bring any one of five verdicts?
Thomas W. Jamison, III: That's what the Court is saying Your Honor, but I think that what we have to keep in mind is that there has been really no controversy about guilt in this case. There never has been any controversy about it, and the statement of the accomplice, of which Brady was deprived, his counsel was deprived before the trial, and which the Court of Appeals of Maryland did say that deprived him due process of law, this statement beginning on page 39, of the record, clearly does not exonerate him from guilt of first degree murder. There is nothing in the statement, which exonerates him from guilt of felony murder. It admits that Brady was the one who knew Mr. Brooks, that Brady was the one who said we've got kill Mr. Brooks and Brady was the one who said we've got the strangle Mr. Brooks. The only thing in the statement, which has any -- which provides any support for the appellant here is the admission by Boblit. That he, Boblit, actually strangled the decedent and it is the state's position that this has no bearing whatsoever on the question of guilt or innocence, but only on the question of punishment.
Speaker: Well if this had been offered, if this statement had been available and had been offered at the trial of Brady, would it have been admissible for all purposes, or let me put it this way, could the state have objected to its general admissibility and said it should be limited only to the question of punishment in view of this record?
Thomas W. Jamison, III: Your Honor, I think in view of the opinion of the Court of Appeals, in this case there is considerable doubt that it would have been ruled inadmissible. It may very well have been decided to be admissible.
Speaker: For all purposes?
Thomas W. Jamison, III: It might have been You Honor. The Court in my -- as I read this opinion is not entirely clear that it could have been admitted. I think however that probably the opinion says it could have been, what the Court says is we think that Boblit's undisclosed confession might have been usable under any one of the three and it didn't say it would have been usable, but it might have said if it had so desired.
Speaker: There is no law outside of this opinion in Maryland on this kind of a situation?
Thomas W. Jamison, III: Yes, Your Honor, there are a number of cases, and the one which the court relies upon most in its opinion is the Thomas case.
Speaker: Thomas, yeah.
Thomas W. Jamison, III: Which would indicate, that for certain purposes this could have been admitted.
Speaker: For all purposes?
Thomas W. Jamison, III: Well, I think that's true.
Speaker: I think so, the way I read, it could be.
Thomas W. Jamison, III: But I do think that there is no doubt about the fact it could have been used even if it wasn't admitted. It might have been used for one purpose or another without being offered in evidence.
William J. Brennan, Jr.: Did Boblit testify at the trial?
Thomas W. Jamison, III: Boblit did not testify at Brady's trial Your Honor, no.
Speaker: Could I ask you another question on this -- these instructions as to less than first degree murder, less than felony murder. Had the Court refused to give those instructions on this record, would that have been a reversible error under your law?
Thomas W. Jamison, III: Under error of law, the Court must give advisory instructions when requested to do so, that's the first one. Now, as I understand the question, it is -- if these specific instructions had been requested and the Court had refused to grant these specific instructions, would that have been error?
Speaker: Well you are limiting it a little bit. What I'm putting to you is this. Supposing the petitioner's counsel had said I want instructions on second degree murder, et cetera, manslaughter, the judge said no, because the evidence in this record is uncontroverted, that this man was guilty of a felony murder and therefore a verdict of that kind would be unsupported by evidence, just like we had in the Greene case up here. Would that have been reversible error, to give an instruction, I'm not talking about the specific wording, any instruction would it have been reversible error?
Thomas W. Jamison, III: Your Honor, I did not know of any case in Maryland, which would require the five possible verdict type instructions in a felony murder case. It is my opinion that the Court could have given an instruction that the jury could find guilt of first degree murder with capital punishment or without capital punishment or not guilty, but as I say, I don't know of any change to that rules specifically on the point. Now after the trial of the --
Earl Warren: Wasn't there some contention in this case that the murder was committed after the robbery and that therefore it wasn't felony murder?
Thomas W. Jamison, III: That's –
Earl Warren: would that be the reason that he would be entitled to that kind of instruction?
Thomas W. Jamison, III: Well Your Honor, the contention was raised on appeal.
Earl Warren: On appeal?
Thomas W. Jamison, III: On appeal, but I don't think it was seriously pressed at the trial.
Earl Warren: Not at the Trial Court?
Thomas W. Jamison, III: It's not my understanding of the case, Your Honor.
Earl Warren: I see.
Hugo L. Black: Is a matter of out of court confessions made by a third person admissible as an exception to the hearsay rule in Maryland?
Thomas W. Jamison, III: It is now, Your Honor, yes.
Hugo L. Black: In this case or …
Thomas W. Jamison, III: Well, this case, certainly I think I must admit, said so. It says that an out of Court confession made by a third party is admissible.
Hugo L. Black: Then they do not have to argue that it's unconstitutional for the state to recognize the hearsay rule?
Thomas W. Jamison, III: No Your Honor.
Earl Warren: Would it be admissible against Brady as well as for him?
Thomas W. Jamison, III: Mr. Chief Justice, I don't know of any case in Maryland in which that point has arisen. I suspect that there might well be a lot of dispute over that question on the part of the defense.
Earl Warren: We will adjourn now Mr. --