Warren E. Burger: We’ll hear arguments next in 71-1005, Michigan against Payne. Mr. Smietanka, you may proceed whenever you’re ready.
John A. Smietanka: Thank you. Mr. Chief Justice and may it please the Court. The facts in this criminal case are a bit complex. Essentially, they arise from an incident which occurred in Benton Harbor, Michigan on November 5, 1962. Two police officers were driving in their patrol car, stopped a Pontiac automobile, got out of their automobile and, as they were walking up to the Pontiac, the driver and passenger of that vehicle jumped out and began firing at them striking both officers, critically wounding both. Both did survive. Later that day, incidentally, it might be noted at this point that after the officers have been hit, they did fire their guns at the retreating vehicle, Pontiac. Later that day, Leroy Payne, the defendant in this case was arrested, a confession was obtained from him illegally, and before Judge Phil Hadsol, the Byron County Circuit Court, he pled guilty on December 14, 1962. In February 1963, he gave testimony against his co-defendant, Lionel Bradford. In March 8, 1963, he was sentenced to 19-40 years by Judge Hadsol.
Warren E. Burger: Well before you passed that, when he gave the testimony against him as co-defendant, did he acknowledge at all the facts that you presented to us?
John A. Smietanka: He did.
Warren E. Burger: Was that testimony used against him in any way thereafter?
John A. Smietanka: It was not. Subsequently, in 1967, Mr. Payne appealed to the Michigan Court of Appeals and in May 12th of that year, 1967, the remand order was entered by that Court to the Byron County Circuit Court for an evidentiary hearing on the question of the voluntariness of his confession and the voluntariness of his plea. Then, Circuit Judge Chester Burns conducted that evidentiary hearing in 1967, suppressed the confession, vacated the plea, and set the case down for preliminary examination, whereupon, it proceeded normally to trial. Prior to trial, the same circuit judge, upon motion of the defendant, granted the change of venue to Grand Rapids which is Kent County, Michigan. At the trial, certain evidence was entered by the people and by the defense. I will get to that evidence later in my argument, if it please the Court. He was convicted by a jury selected from Kent County. He was sentenced on August 30, 1967 to a term of 25-50 years.
Warren E. Burger: Now, in this trial, was his testimony against Bradford available to the jury?
John A. Smietanka: It was not, Your Honor.
Warren E. Burger: Does some rule or law of Michigan prohibit that?
John A. Smietanka: The confession was not entered because Judge Burns specifically suppressed it and--
Warren E. Burger: Well, the confession. I’m speaking of his affirmative testimony, on the record in open Court in Bradford’s trial.
John A. Smietanka: No mention as to be made of any-- there is an agreement prior to trial, it’s my understanding, and order of the Court that no mention was to be made either of his confession or his plea or the testimony before Judge Hadsol in the Bradford trial, and none was made. In fact, there was great deal of cross-examination in the second trial which led up to, but did not come-- did not even in the remote sense mentioned, the fact that he had testified in the prior trial or of any prior proceedings. There was no notification, no notice of any prior proceedings given to the jury or anything that have happened in those prior proceedings.
Warren E. Burger: But this was by virtue of an agreement, not by a--
John A. Smietanka: By virtue of an order of the Court, I recall.
William O. Douglas: By an order of the Court?
John A. Smietanka: It-- I’m not sure how the-- exactly the order was formulated, whether it was by stipulation of counsel, which I believe was the case, and the Court ordered-- made an order based on that understanding.
Warren E. Burger: I see.
John A. Smietanka: It may have been recorded-- it may have been done in chambers and it may not have been formally filed, but that was the case.
Warren E. Burger: So that neither the jury nor the judge, this trial you’re speaking of now, were aware of his testimony which amounted to a judicial confession in the Bradford case.
John A. Smietanka: The judge was, Your Honor, because the-- he was the one who had vacated the prior conviction. He has-- he was, as I said, sentenced to 25-50 years in Michigan Department of Corrections. On June 23-- pardon me, he did appeal that conviction, raising as one of the grounds an excessive sentence the second time around. On June 23, 1969, this Court delivered the decision in North Carolina versus Pearce. Two days later, June 25, 1969, the Michigan Court of Appeals affirmed both the conviction and the sentence, that is, a sentence of Judge Burns. The Michigan Supreme Court granted leave and, apparently, unanimously affirmed the conviction, but in a 4-3 decision and reversed the sentence based on an-- their interpretation, the Michigan Supreme Court’s interpretation, of the requirements of North Carolina versus Pearce. This Court granted certiorari in October 16, 1972. The primary issue, which is actually the last issue that I’ve raised in my brief, is that of the retroactivity of North Carolina versus Pearce. First of all, I think we can agree that the sentence was properly imposed technically. The-- it was well within the statutory maximum, that is the statutory maximum in Michigan for assault with intent to murder is life imprisoned. There are two issues dealt with by the Court in North Carolina versus Pearce, first is that of sentencing. Pardon me, first is that of credit to be given to a person who has appealed a conviction and been resentenced. He must be given credit. This was posited and based on the ex parte Lang on the Double Jeopardy Clause, but the second issue--
Potter Stewart: And that issue is not here, is it?
John A. Smietanka: That issue is not here, Your Honor.
Potter Stewart: No?
John A. Smietanka: No question of that.
Potter Stewart: Okay.
John A. Smietanka: The second issue is that of whether or not a higher sentence could be imposed on the second sentence after a successful appeal. The Court in Pearce, of course, specifically eliminated the question of Double Jeopardy and Equal Protection Clauses as being a bar to that sentence, that increased sentence, but this say that due process requires that certain-- that these sentences be protected or be governed by certain rules, a certain rule, namely that, first of all, it’d be based on objective identifiable conduct occurring after the first sentence and, secondly, that that conduct must appear on the record. On January 16 of this year, this Court delivered an opinion in the case of Robinson versus Neil, in which it cited Pearce without mentioning exactly the-- specifically defining how it cited, but it note that Pearce indicated that Benton versus Maryland should be applied retroactively. The mentioning of North Carolina versus Pearce, we fee, by Mr. Justice Rehnquist, was intended to deal with the double jeopardy aspect of Pearce, that is the sent-- the creditor time served. Further in that decision in Robinson, this Court noted that there is some conflict or a difficulty of understanding the retroactivity and prospectivity rulings of this Court, and referred the readers and the-- to the thrust of the Desist versus United States as summarizing the Linkletter type criteria and said that, first of all, we must look to determine whether the Linkletter criteria apply to the question of what right are we dealing with? What right or what privilege newly defined are we dealing with? Then, we must look to the purpose of the rule. Desist also emphasized the fact that the purpose of the rule, newly defined, is the most important aspect. Looking at the particular right that we have, that is the Fourteenth Amendment Due Process Clause, this Court has not held that, in it of itself, solely by citing and by using-- having a right affected by the Due Process Clause does not, in it of itself, require retroactivity. A particular rule or particular-- the purpose to be served by a particular rule may indicate that retroactivity should take place, but it does not require it. It is the contention of the State of Michigan that the Linkletter criteria should be applied here for the following reasons. First of all, that, as I said, the Due Process Clause does not, in it of itself, require retroactivity, as would, as Mr. Justice Rehnquist noted, as it would with the Double Jeopardy Clause in Waller versus Florida. Essentially, the Due Process Clause, in the way it was applied in this case, assures fairness, basic simple fairness, in the imposition of a second sentence. We then move to the purpose of the rule. Essentially, there are two purposes for the North Carolina versus Pearce decision. There are two things that the Court wanted to protect. First of all, that is the appellate process, that is, there should not be any unreasonable impediment to the exercise of a right to appeal granted in this case by a state. The Court, as I recall, has not stated that there is a constitutional right to appeal but, when it is applied, it must be applied-- there must be equal access to the Courts, there must be no unreasonable distinctions. And, the unreasonable distinction here is a reasonable fear that a second sentencing judge will act indicatively against a particular defendant. The second purpose is to prevent, to deter, improper vindictive sentences upon defendants solely because they have appealed and want a new trial. Now, how do we apply the Pearce case and how does it fit within this question of retroactivity?
Thurgood Marshall: Well, first of all, did the same Judge evoke the trial?
John A. Smietanka: No, sir. No, Judge Philip Hadsol was-- imposed the first sentence, Your Honor.
Thurgood Marshall: Right.
John A. Smietanka: And Judge Chester Burns imposed the second sentence.
Thurgood Marshall: That’s what I thought, yes.
John A. Smietanka: There are certain factors--
Potter Stewart: It was Judge Burns who, in fact, had set aside the original judgment and granted a new trial, wasn’t it?
John A. Smietanka: That’s correct, Your Honor.
Potter Stewart: What was that, just on-- he wasn’t an appellate judge. He was--
John A. Smietanka: No, he was-- their case was remanded from the Michigan Court of Appeals for an evidentiary hearing and, at that evidentiary hearing or after it, he decided, first, that the order-- that the confession should be suppressed, the plea vacated, and it was set for a new preliminary examination which was held and proceeded to trial.
Warren E. Burger: Yes, and so that was, they allowed him to withdraw his guilty plea.
John A. Smietanka: That’s correct.
Warren E. Burger: That was the thrust of that holding, wasn’t it?
John A. Smietanka: That’s correct. The second thing which we are trying to prevent or the Court is trying to prevent in Pearce is the vindictive sentencing. How do we go about handling it? First of all, the Court said that the type of material, the factors to be considered by a judge imposing a second sentence should be limited to objective identifiable conduct occurring after the first sentence. Actually it didn’t say “limited to it,” it said “based upon.” And, secondly, there’s a record making requirement, that is, this material must be placed on the record so that a higher Court can review that the bases for sufficiency. Now, retroactivity, it’s our contention, will not further either of these goals. First of all, those who have been, in the past, deterred from appealing are not going to be-- have their wrongs righted by the retroactivity of Pearce to those cases where those who did appeal had their-- had a higher sentence imposed, that is, the actual wrong that the Court is dealing with is the reasonable fear of those-- the deterrence of those who want to appeal but are afraid to appeal. These are the people who have suffered the appellate wrong that Pearce was trying to avoid. Now, making these cases retroactive, making this case retroactive to handle those-- where the defendant did appeal obviously, those who were afraid will never have justice done to them. Secondly, the prospective application of Pearce will satisfy each of the-- satisfy this appellate and of Pearce, that is, from now on we know, we being-- we convicted of crimes, we know that we will not be subject to a vindictive sentence the second time around and we now can prosecute our appeals. It should also be noted that if that case-- if Pearce were to be retroactively applied, it would have to be logically a question of each person who was sentenced would then have a right to say-- come in and say, “well, I was deterred because of the fear of reasonable-- unreasonable increase in sentence and, therefore, hear my appeal,” thus, reopening or opening for the first time each sentence at least and each conviction that has ever taken place, in which the defendant presumably is still alive. Thus, the proof problems would be immense and, furthermore, Pearce--
Thurgood Marshall: Do you have--
John A. Smietanka: I’m sorry--
Thurgood Marshall: Do you have any figure as to how many people convicted, successful on appeal, who had their sentences enhanced?
John A. Smietanka: I have no figures, Your Honor, except for figures which were cited in the appendix to Walsh versus Commonwealth dealing there, not with the type of review we have here, the type of sentence we have here, but appellate review of sentencing. This came about in the-- under the Massachusetts rule and, in that, there are many, many statistics.
Thurgood Marshall: I’m talking about Ju-- this big flood you’re talking about.
John A. Smietanka: Well, in Minneap--
Thurgood Marshall: I don’t know how big this flood is.
John A. Smietanka: Well, the flood, Your Honor, would come from every single conviction.
Thurgood Marshall: Every single conviction?
John A. Smietanka: If a person could conceivably-- for example, a person is convicted, 100 people are convicted--
Thurgood Marshall: Like a few people in the penitentiary today were convicted and didn’t appeal at all?
John A. Smietanka: I don’t know how many there are.
Thurgood Marshall: Well, there are some.
John A. Smietanka: There are some.
Thurgood Marshall: Well, they wouldn’t be covered.
John A. Smietanka: I think they would be, Your Honor, because--
Thurgood Marshall: How?
John A. Smietanka: Because the appellate purpose of Pearce is to avoid the fear of a higher sentence. If a person in jail, in prison, does not appeal, it may be for a number of reasons. For example, he might be satisfied with his conviction, satisfied to justice done, but one reason--
Thurgood Marshall: Well, I’m already quarreling with your word “all,” and I still say that a man in the penitentiary who serves life imprisonment wouldn’t be worried about enhancement of his sentence. Am I right or wrong?
John A. Smietanka: That could be, Your Honor. Furthermore, the sentencing process is to be protected by Pearce and there were-- the real bugaboo, the real evil, is a question of actual vindictiveness. Now, that is actual vindictiveness for having taken an appeal, and the way the Court handled that was to formulate a rule of, basically, constructive vindictiveness. The Court said “alright, if these criteria which we’re laying down are not met then, in effect, we are construing, we are saying that this sentence is reversible because it is not-- it is technically, it is based on a vindictive type of sentencing. It is constructive vindictiveness, but we are actually trying to avoid actual vindictiveness and like actual police misconduct, the type of conduct we had in Mapp versus Ohio. We’re talking here about deterrence of that behavior, and retroactive application of Pearce is not going to enhance the deterrent effect of Pearce.
Warren E. Burger: After lunch, you will have only 10 minutes left and I hope you are saving a substantial amount of that time to emphasize the differences in a situation when the second sentence was imposed as compared with the first.
John A. Smietanka: I will. [Luncheon Break]
Warren E. Burger: You may continue. You have about 10 minutes all together.
John A. Smietanka: Thank you, Mr. Chief Justice. May it please the Court. The questions that I was requested to confine my remarks to, basically, what type of behavior was indicated as--
Warren E. Burger: I don’t mean to limit you to that, but that’s a matter of very great interest to me.
John A. Smietanka: Yes, it is but, primarily, I’d like to deal with the two items. There is an affidavit, two affidavits, in the petitioner’s appendix found on pages 17 through 21. These are from Judge Burns. One was supplied to the request of the Michigan Supreme Court, the other he submitted to clarify one matter in this Court. Basically, they could be boiled down to two things. First of all, the-- he felt that the behavior of Mr. Payne at the trial warranted an increase in sentence, namely after receiving a new trial, he came in and the judge concluded and, we believe the jury must have concluded, he did not tell the truth because of the following reasons. The evidence presented by the people was as follows. First of all, Vick Yost, the victim, made an incorrect identification of the defendant as the one who shot him. He had known him before and saw him, recognized him when the shots were being fired, and testified that way in court. Furthermore, when he was laying on the street and the first officers came up to the scene and asked “who shot you?” And it was testified that Vick said “Leroy Payne.” “The license number?” Then, he gave the license number of the car, “RB2599.” That car, when it drove away, had been fired at by the officers, bullet hole-- pardon me, fired at the returning vehicle. They found the car later, the same license number, four bullet holes in the trunk of the car, and that car was Leroy Payne’s. Next, the assault weapon was found, and Leroy Payne’s fingerprint was found on it. Against this, defendant testified to an alibi, namely, “I was at home during the time-- at all time-- I was home in bed during the time the shooting took place. I did not shoot Vick Yost. I did not drive my car that night.” The jury, in finding the man guilty beyond a reasonable doubt, must have found that the testimony of Mr. Payne was untrue. That, in many case, in insanity defenses, and many other types of defenses, this is not the case, but when there’s an alibi defense and especially in this case where it is so clearly-- the positions of the two parties are so clearly defined, the verdict of the jury was that he was guilty beyond a reasonable doubt and it must’ve included the fact finding that he did not tell the truth at the trial.
Warren E. Burger: Well now, the important thing perhaps or one of the important things is the impact of this as compared with the posture of the case when it was before the original sentencing judge. At that time, it was different judge wasn’t it?
John A. Smietanka: That’s correct.
Warren E. Burger: That judge had the impression somewhere, I get it, out of the record--
John A. Smietanka: Yes.
Warren E. Burger: That since he fully confessed and re-- expressed regret and sorrow for the shooting of these officers, that he was reasonable candidate for rehabilitation and, did not the second judge give some indication that he thought that this was a--
John A. Smietanka: Yes, sir. That is--
Warren E. Burger: Very much in marked contrast?
John A. Smietanka: Yes, Your Honor, that is my second point. Taking this type of behavior at the second trial together with the completely different approach that Mr. Payne took at the first trial and that-- you’ll notice in the appendix on pages 6 through 8, the sentencing transcript of Judge Hadsol. He specifically notes the type-- the approach that this defendant had taken, confessing his crime, made him a very appli-- appt candidate for rehabilitation.
Byron R. White: Well, is it your-- state’s position that the state may impose a heavier sentence in any case if they plead guilty.
John A. Smietanka: No.
Byron R. White: For the victim.
John A. Smietanka: No, that’s not the case, Your Honor. My position here--
Byron R. White: What else is there here? The man maintained his innocence in the second trial after having confessed to it? Of course, that’s true.
John A. Smietanka: Yes.
Byron R. White: But, you’re saying the heavier sentence was justified by his behavior, namely denying the crime and maintaining his innocence.
John A. Smietanka: In-- there’s a difference, Your Honor, we believe, between maintaining a person’s innocence. That is a legal conclusion. As I can say I’m innocent, but not come in and testify to facts which are-- specific facts which are not true.
Byron R. White: You do say that, but a man comes up the stand and denies that he shot the weapon, that he shot the gun and then the jury finds him guilty, that the state justified imposing a heavier sentence on him than his co-defendant who plead guilty.
John A. Smietanka: If the case-- I know, we’re not dealing with a co-defendant, Your Honor, because--
Byron R. White: I know, but you would say that, I suppose.
John A. Smietanka: No, because I’m dealing with a question of the same person. We’re dealing with the same person. At one time in 1963, having one attitude and an--
Byron R. White: Well, if he loses then, he loses his game when the jury finds him innocent. He-- they’ll have to punish him more heavily than if he had--
John A. Smietanka: For behavior--
Byron R. White: Than if he had pleaded guilty.
John A. Smietanka: For behavior which he had exhibited after that first sentence, yes, Your Honor.
Thurgood Marshall: Well, what’s the sense-- this man was pleaded guilty. He was convicted and he appealed.
John A. Smietanka: Yes, sir.
Thurgood Marshall: Well, was the purpose of the appeal so he could go back and plead guilty again?
John A. Smietanka: No, the purpose was not that he’d go back and plead guilty again. It was to have a fair trial, which he received. In the course of that trial, he exhibited conduct which we contend is detrimental conduct, that is--
Thurgood Marshall: What’s that?
John A. Smietanka: That is, testifying falsely. We believe that this Court is--
Thurgood Marshall: How do you know it was falsely?
John A. Smietanka: Your Honor, the-- a determination--
Thurgood Marshall: Well, do you have perjury as an issue?
John A. Smietanka: Yes, we do. We do not charge him with perjury because of the--
Thurgood Marshall: All you can say is the jury didn’t agree with him. Is the case any more than that?
John A. Smietanka: The case?
Thurgood Marshall: The jury agreed with the state and did not agree with the defendant.
John A. Smietanka: That’s correct.
Thurgood Marshall: That’s all.
John A. Smietanka: But, in finding that they agree with the state, they have to completely disregard the testimony of the defendant in this case.
Thurgood Marshall: Well, what other convic-- how else do you get a conviction?
John A. Smietanka: Well--
Thurgood Marshall: If you plead one side, you vote that way. If you plead the other side, you vote that way.
John A. Smietanka: That’s correct, Your Honor. However--
Thurgood Marshall: Is that this case?
John A. Smietanka: We should note--
Thurgood Marshall: What makes it so different from the (Inaudible) criminal case?
Warren E. Burger: Isn’t the essence of it that the verdict in the second trial cannot be read any other way than a finding that he testified falsely under oath and that they reach that finding beyond a reasonable doubt? But, is that as important, really, as the fact that the judge said, in sentencing after the trial, that his man was a different person in terms of his probability of his rehabilitation and that that was the basis for his giving the heavier sentence?
John A. Smietanka: Yes, sir, and all the testimony has to do is to lead to that conclusion. Basically, the sentence is--
Thurgood Marshall: Well, what is it that’s so different?
John A. Smietanka: The difference, I believe, Your Honor, is--
Thurgood Marshall: One time, he says “I did it, I shot it and I’m sorry,” which he has a perfect right to do, and then he gets a new trial and he says “I didn’t shoot it.” Is that horrible?
John A. Smietanka: Your Honor--
Thurgood Marshall: Is that enough to increase a sentence on him?
John A. Smietanka: I believe, Your Honor, it’s his conduct which would indicate a certain something about his character which the judge could take into consideration in imposing a higher sentence, yes.
Thurgood Marshall: Well, what did the judge take in the consideration except that he didn’t believe him?
John A. Smietanka: He took into consideration that the jury found he was not telling the truth, and this indicated something about his character, a change in his character which had to do with the length of the sentence which had been imposed.
Thurgood Marshall: The change in his character that he wasn’t now and then a scraper. Is that the change?
John A. Smietanka: That is not what we require defendants, Your Honor.
Thurgood Marshall: Well, what else is there, other than that?
William H. Rehnquist: I take it, you’ve already explained at some length what you think is different, haven’t you?
John A. Smietanka: Yes, Your Honor.
Warren E. Burger: And did he not, not once but twice, make a full confession? When he testified in, was it Bradford’s trial?
John A. Smietanka: Yes, sir.
Warren E. Burger: When he testified in Bradford’s trial leading to the conviction of his co-defendant, he fully described in every detail his participation in the card.
John A. Smietanka: That’s correct.
Warren E. Burger: And none of this information was, of course-- could’ve been known to the judge who sentenced him on the guilty plea in the first instance.
John A. Smietanka: No. In this case, Your Honor, the facts were slightly different and that is that, and this is something that Michigan Supreme Court did not notice and that was that, Judge Hadsol had presided at the trial of Bradford before he sentenced Payne. So, he heard Payne testifying. That’s-- we don’t dispute that. He did-- was available-- was aware of the facts of Bradford and Payne during the Payne trial or at the Payne sentence.
Thurgood Marshall: Did he also take consideration of the fact that he testified for the state to convict the other man?
John A. Smietanka: He may have. I don’t know.
Thurgood Marshall: You don’t know that.
John A. Smietanka: He didn’t specifically state that.
Thurgood Marshall: Well, I don’t know he took it into consideration at all, do I?
John A. Smietanka: You don’t, Your Honor.
Thurgood Marshall: He only took one side into consideration.
John A. Smietanka: That’s correct. Your Honor, I would like to reserve the rest of my time for rebuttal.
Warren E. Burger: Mr. Neuhard.
James R. Neuhard: Mr. Chief Justice and may it please the Court. I’d like to step into the conduct area of the argument at this time. However, I feel there are a few responsive notes I’d like to make on the issue of retroactivities. I agree with the prosecutor when he states this is a very complex problem. This case had been in the Courts now for over 10 years on various aspects. In fact, there’s a collateral matter pending on the Sixth Circuit which is the companion case to this case. The co-defendant Lionel Bradford’s case is on appeal in the Sixth Circuit, again, by the people because Lionel Bradford’s conviction was vacated by the District Court of the Eastern District of Michigan. The basis for the vacation was on the-- that Leroy Payne’s testimony was used to convict Lionel Bradford and Judge Cornelius Kennedy, in vacating the conviction, held that because his confession was brutally beaten out of him, it was as though the state had knowingly used purged testimony to obtain the conviction of Bradford. This also would get into the conduct argument, but--
Warren E. Burger: Well, you mean there’s some spillover effect when he testified against Bradford?
James R. Neuhard: That’s correct, Your Honor. The reason was that--
Warren E. Burger: How long a time was that?
James R. Neuhard: Pardon?
Warren E. Burger: How long a time was that between the two trials?
James R. Neuhard: That’s almost a period now of 10 years.
Warren E. Burger: Yes. So that there’s some spillover effect of the original confession when the man’s in open Court in the presence of a judge?
James R. Neuhard: That’s correct, Your Honor, in this particular case because of the unusual fact situation. The answer to that basically is that when Leroy Payne was picked up by the police officers he was in the custody of three various police departments, and there’s no dispute that the reason for vacating his guilty plea in this particular case was because the confession was beaten out of him. As a matter of fact, at Lionel Bradford’s trial, they wanted to introduce pictures taken of Leroy Payne after his confessions and they were excluded because they were inflammatory, that he was in such a brutally beaten condition. His thumbs were sprained, his face was swollen, his genitals were squeezed until he was brought into a state where he confessed. All of the activities from the moment he was picked up until he testified in Lionel Bradford’s trial and was sentenced were while he was in the custody of the police department of a space of over five months, four-and-a half months. And, because of that fact, when he finally did testify at Lionel Bradford’s trial, and he did go to sentencing, he initially intended to sue the police departments for the condition in which the manner which they treated him and he decided not to do so, and--
William J. Brennan, Jr.: What was the holding would set aside Bradford’s conviction?
James R. Neuhard: Because--
William J. Brennan, Jr.: Based on what?
James R. Neuhard: Because the confession that was introduced was the testimony of Lionel Bradford.
William J. Brennan, Jr.: Whose confession is it?
James R. Neuhard: That is Leroy Payne’s.
William J. Brennan, Jr.: It was introduced at the--
James R. Neuhard: In Lionel Bradford’s trial, that is, he took the stand and testified.
Warren E. Burger: Well, was it a confession or was he testifying--
James R. Neuhard: It was his testimony.
Warren E. Burger: He testified in person?
James R. Neuhard: That’s correct, Your Honor.
Warren E. Burger: Not a confession?
James R. Neuhard: That’s correct, Your Honor.
William J. Brennan, Jr.: And it was said that that was the fruit of these beatings?
James R. Neuhard: That’s correct, Your Honor.
William J. Brennan, Jr.: That’s the holding of the District Court?
James R. Neuhard: That’s correct.
William J. Brennan, Jr.: That’s now on appeal in the Sixth Circuit?
James R. Neuhard: That’s the-- people are appealing that case to the Sixth Circuit. That-- our appendix in this particular case has extensive quotations from the Bradford transcript that show the manner of testimony of Leroy Payne plus all the testimony of the police officers both had Payne’s second trial or his first trial, as it was, after his plea and at Lionel Bradford’s trial, and it sat on that length, for purposes of comparison to show that Judge Hadsol knew as much as the second sentencing judge, Judge Burns, when he sentenced him. As a matter of fact, at the second sentencing, Judge Burns said that-- I’m sorry, at the first sentencing, Judge Hadsol said that when he gave him 19-40 years in prison that, “I’m taking into account your remorseful condition now, and if it continues, you might get released early.” Because Michigan has indeterminate sentencing, it takes into account these vagaries of personality changes which can occur, and Judge Hadsol was well-aware of this. He was well-aware of what Payne had said at his first trial and he was grateful that Payne had decided not to sue the police officers, which he has not done. If I may, I’d like to get into the--
Byron R. White: But he has-- he did plead guilty.
James R. Neuhard: That’s correct, Your Honor. It was while he was with that-- the reason for the vacation of the guilty plea was because it was beaten out of him.
Byron R. White: I understand that, but at the sentencing he was found guilty.
James R. Neuhard: That’s correct, Your Honor, the first sentencing. It also followed Lionel Bradford’s trial.
Byron R. White: Which Michigan needs to perform the actual charge.
James R. Neuhard: That’s correct, Your Honor, the same as a confession which was beaten out of you as an admission.
Byron R. White: Yes.
James R. Neuhard: The point is the same.
William H. Rehnquist: Well, is there any contention that the guilty plea was beaten out of him?
James R. Neuhard: That-- yes, Your Honor, that the guilty plea was the product of the coercion of the Byron County police officers.
William H. Rehnquist: Well-- But what I asked you was, was there any contention that the guilty plea itself was beaten out of him.
James R. Neuhard: You mean, while he was in Court, was he being coerced at that particular time?
William H. Rehnquist: Well, I think--
James R. Neuhard: Well, the implication is-- that’s our implic--
William H. Rehnquist: I’m not-- I didn’t ask you over the implication. Do you contend that the plea itself was beaten out of him?
James R. Neuhard: Directly, Your Honor, I’m without knowledge on that point. Whether Mr. Payne would contend that--
William J. Brennan, Jr.: What did the Judge hold when he set aside the guilty plea?
James R. Neuhard: That it was the product of the coerced confessions and that it directly led to the guilty plea.
William J. Brennan, Jr.: And that has nothing to do with whether or not he did or did not say he conformed with the act or the relevance of the fact that he said he conformed with the act in what sentence he might give.
James R. Neuhard: I’m not sure I understand your question.
William J. Brennan, Jr.: It is completely different from the second case where he plead defecto.
James R. Neuhard: Well, it is in the sense that after the first convictions and the guilty plea--
William J. Brennan, Jr.: No, setting aside the plea the product of a coerced confession. It has very little relevance, if any, to the accuracy of the plaintive.
James R. Neuhard: Well, I think it has some direct bearing on whether or not a man would plead guilty knowing that he had three confessions.
William J. Brennan, Jr.: No, I can see. I didn’t-- what I said, I said it had very little relevance to the plea in a sense that it would’ve been set aside when it was actually not.
James R. Neuhard: That’s correct, Your Honor. That’s correct. It may in the abstract or it may in fact have been a true plea, although Mr. Payne, once he was out of the custody of the Byron County police officers, did begin the appellate process and then, when he came back to trial, he testified he had nothing to do with it.
Warren E. Burger: How long after the original plea of guilty and sentencing did he move for a new trial and, well, move to withdraw his plea of guilty?
James R. Neuhard: Well, there was-- the initial four months would be, I’d say, about three months bef-- after he plead guilty until the Bradford trial, and then it would be a period of about two years, I would imagine, before the first plea-- motion for a new trial was sen-- was made and that was in front of Judge Hadsol. Following that, there was a renewed motion for a new trial in front of Judge Burns, at which, Judge Burns, the second sentencing judge, granted it. In between those two motions for new trial, there was the appeal to the Court of Appeals with the remand for an evidentiary hearing for determination of the circumstances under which the plea was made. So, it would be--
Harry A. Blackmun: Did-- in this recent Bradford proceeding, Judge Kennedy make any finding that the story Payne told at Bradford’s trial was coerced out of him and was not true in fact?
James R. Neuhard: Well, she didn’t go so far as to say it was not true in fact. She did say it was a product of a coercion of the worst circumstances and should not have been injected into the trial by the people, knowing these facts to be true. If I may, there are a few points I’d like to make on the issue of retroactivity. The-- I-- we feel our brief is adequate on this point, but there are several points that should be brought out. This issue was pending on appeal. When the Pearce decision was released, it was based on prior Michigan authority. The case in the Michigan Court of Appeals, when it was released two days subsequent to the release of Pearce, took into account peripherally the Pearce decision, but the majority was a 2-1 decision rule that because the second sentencing judge knew more about the defendant than the first judge, because he had taken a plea, they affirmed the conviction. Prior Michigan law says, very much like Pearce, that if the situation is such that the sentence might have been the product of vindictiveness and no reason can be put forth for the sentence increase, then the plea-- the sentence should be set aside.
Byron R. White: What year was his first sentence?
James R. Neuhard: He’s first sentence, Your Honor, or first conviction?
Byron R. White: He’s first conviction.
James R. Neuhard: His first conviction was set aside. I believe it would’ve been in 1967. I believe, 1967, and the subsequent--
Byron R. White: And they’re still setting it? Is there still a procedure to set aside guilty pleas based on allegedly coerced confessions?
James R. Neuhard: Well, there is, Your Honor, the very basic procedure we have for challenging the validity of a guilty plea itself. That is a voluntary--
Byron R. White: You may appeal-- after a guilty plea, you may appeal the admissibility, say, of a appeal procedure?
James R. Neuhard: Well, you can, Your Honor. You can appeal anything you want and challenge the voluntariness of the confession itself because Michigan has a statute since 1875.
Byron R. White: No, but you can’t-- you don’t have a system in New York where if you make a motion to suppress certain evidence and is denied, plead guilty, and have him appeal the suppression of it?
James R. Neuhard: Well, Your Honor, it’s sort of yes, you can do it, but there’s no set up procedure to do that specifically.
Byron R. White: But then you have in your case what happened was the guilty plea was claimed to be an expressed conduct.
James R. Neuhard: That’s correct, Your Honor. Likewise, that’s the contention that the defendant made at Lionel Bradford, that his testimony at the trial was a direct product of the coercion he was under during the time he was in the custody of the Byron County police officers.
Warren E. Burger: Does Michigan have any statute allowing some particular time limitation on withdrawing a guilty plea after sentence?
James R. Neuhard: No, Your Honor. There is-- this is an area of high dispute in Michigan right now. There is some authority for the proposition that between the time of the plea and before sentencing, that there-- the defendant has the-- almost a right to withdraw the plea, but he had to set forth good reasons and, after the plea, the burden then is on the defendant to show why the plea itself was invalid, but--
William H. Rehnquist: You mean after sentence?
James R. Neuhard: That’s correct, Your Honor. There’s-- because that time period between the plea and the sentence where he has more of a right to withdraw than after the sentencing. After sentencing, Michigan has a very definite date by which it’s the normal appellate process for showing that the plea itself was invalid.
William H. Rehnquist: Among the reasons given, is it required that he assert inst-- innocence of the crime?
James R. Neuhard: Not in the State of Michigan, Your Honor. I would like to get to the issue of--
Warren E. Burger: In any event, he could’ve-- in view of his subsequent conduct, that wouldn’t have been a barrier to him because he did--
James R. Neuhard: That’s correct, and he did assert innocence once he got back to trial. On that point, I think one of the underlying premises and difficulties of this particular case, that you have two unique elements of this particular case. You have a plea trial situation and you also have the situation where a man who vacates a plea goes to trial, takes the stand, and testifies in his own defense. Both of these were the main product which Judge Burns used in increasing the sentence. We contend that the first issue, that is that he knew more about the defendant than the first judge in the matter of the crime itself, is not factually true and not factually correct. Judge Hadsol knew much about it, if not more, because both police officers testified at Bradford’s trial. He knew more about the crime when he sentenced Payne and, in fact, he said that at the sentencing itself. “I know all there is to know about this particular case when I imposed this sentence.” Then, the second judge did, Judge Burns. It also leads up to the question of remorse and the question of perjury.
Byron R. White: Would your position be different if he had, in fact, Bradford?
James R. Neuhard: No, Your Honor, it would not. We do not see any reason whatsoever in increasing a man’s sentence from 19-40 years to 25-50 years that the state has put forth as a valid reason for doing so. Michigan has indeterminate sentencing which takes into account all the vagaries of personality and character differences when they have a man in the prison itself. They have a psychiatric department at the prison to take these things into account. Also, in the subsequent conduct scheme--
Byron R. White: Well subs-- absently, Bradford had pried. The second judge very likely might know more about the defendant. If he’s tried, then the judge will just let him plead guilty.
James R. Neuhard: Well, in Michigan also, we have this--
Byron R. White: This is the kind of information that Pearce had probably.
James R. Neuhard: No, it isn’t. It’s-- we would contend it’s not conduct occurring, first of all, after the first sentence. It’s nothing over which a defendant has any control.
Byron R. White: But it may be information that the first judge had.
James R. Neuhard: There may, in fact, be a situation where the judge doesn’t have the same information the second judge has. We do not contend-- we contend it’s just not the kind of information that Pearce contemplated that when the-- Michigan has a presentence report procedure whereby a probation officer investigates a total crime and then reports to the judge for purposes of sentencing. It’s a very exact kind of thing and goes beyond even analyzing the crime and goes out to the neighborhood and talks the neighbors of the particular defendant, any kinds of information.
Harry A. Blackmun: I know there’s reference to that in Judge Burns’ second affidavit that he says he did receive and studied, prior to sentencing Mr. Payne, a supplemental plea sentence report which it cannot, under the present Michigan law, make public, but which a higher Court than this one can order produced. Did that-- was that ever called for?
James R. Neuhard: Yes, Your Honor. As soon as we-- we did not get into this case until November 29 of last year and, as soon as we got into the case, we made a motion for production of that presentence report. We also included in appendix to our brief the rule in Judge Burns made on our motion for production of that report. He denied us access to it, and we also quoted him to Michigan authority. Two cases in Michigan now that had been on the books for over two years which allow the sentencing judge to release it. It’s within his discretion. It’s not mandatory that it’d be release, but he has the right to release it. He denied us access to that. So, it puts Mr. Payne in the position of challenging information that he has no way of knowing what’s in there. That it’s a very difficult procedure, at best, to put a defendant in when he’s contemplating an appeal. He has no control over the--
Warren E. Burger: But didn’t this Court settle that issue in Williams against New York?
James R. Neuhard: Your Honor, we agree with the basic premise of Williams v. New York that you should have-- that the judge knows much about the individual as he possibly can when he sentence him, but what we’re talking about here is the second sentencing when you have other constitutional rights which are at stake. It’s the constitutional right to not only the defendant, I should make clear, but of the Court’s system itself that there’s a very good chance that Mr. Payne knew his sentence was going to be increased. He might not ever have appealed, and the kind of activity that went on in this case with these confessions and the plea was a product of the confession for being out of him would never be apparent to a supervising Court. Like we have in Michigan, one Court of Justice, and it’s their duty to supervise the lower Courts and if they are prevented of this road of access to showing the Appellate Courts what’s going in their lower Courts is denied, then you’re really perverting the system of justice that our state has established and we can’t see those presentence reports and--
Warren E. Burger: I can understand your emphasizing the fact-- the circumstances of this first confession right after the commission of the crime after Payne was taken into custody, but we can’t avoid looking, can we, at the record which shows that police officer identified Payne by sight and that bullet holes were found at the back of his car and that the pistol-- Payne’s pistol was found to be the pistol that had been used to shoot the officers? Are those factors not part of the whole mosaic here?
James R. Neuhard: Yes, they are, Your Honor, and they are necessarily so in many criminal convictions where a defendant takes a stand and asserts his reasons for or his explanation of the charges against him, and we contend that’s what the charge of perjury is to take into account. And, what you’re allowing here, after a man has appealed, a man has a right to exercise his right to appeal, is that if he comes back to Court, they’re going to allow to increase his sentence on perjury seven years, seven years he’d already served. He can now have his sentence increased by seven years because of alleged perjury without any kind of a hearing without the ability to see the presentence report, upon which, allegedly, this sentence--
Warren E. Burger: Well, are you suggesting that the judge in the trial, the judge whose sentence is under consideration now, was not entitled to conclude that this man was a less probable prospect for a successful rehabilitation than the first sentencing judge had concluded when he had expressed great sorrow over his conduct?
James R. Neuhard: Well, I can-- there’s many answers I can give to that, Your Honor, but one of the primary answers I think that’s important to recognize is this man had a 19-year minimum at this time, the 40 years in prison. That, most reports done in prisons and precluding the prison’s report on crime and correction indicate that sentencing is not an exact science at all, and this kind of--
Warren E. Burger: What’s that got to do with the question I just put to you?
James R. Neuhard: Because what you’re allowing because of this idea that because one judge-- the impact before him on one judge is different than the impact it has on the second judge necessarily on his candidate for rehabilitation allows him to increase his sentence at seven years, and the impact on this is that a man is now serving in prison.
Warren E. Burger: But don’t you think his conduct, in the meantime, should-- is something that Judge may take into account?
James R. Neuhard: I do, Your Honor, and this man, the judge said at the second sentencing that his conduct in prison was exemplary and that’s the only thing that prevented him--
Warren E. Burger: I’m not talking about his conduct in prison. I’m talking about his conduct outside the prison.
James R. Neuhard: Well, if it’s conduct outside the prison, as we’re into this case, the only conduct which has occurred after the first sentencing which is alleged perjury that occurred inside the second trial. Now, the judge never, in any of his affidavits, alleged that the perjury occurred inside the second trial. He was referring to between the first instance, those plea trials in the first instance, and the second trial, that the allegation that there was internal perjury which occurred is because he asserted an alibi defense. His alibi defense was that his car was stolen, the gun was in the car, and it was used unbeknownst to him. Now, if there’s an allegation of perjury here, I think this Court settled many years ago in in re Murchison that-- which dealt with a grand jury proceeding, that a grand jury proceeding that a judge can’t be at one time the prosecutor, the judge, and the sentencer in a given case.
Byron R. White: Well, let’s assume at the-- let’s assume that at the sentencing, after the second trial, there’s no-- the defendant doesn’t say anything but “I’m innocent” and maintains his innocence. Now, are you suggesting that, invariably, that it’s an invalid factor for a judge to take into account in sentencing?
James R. Neuhard: At the second sentencing, Your Honor, I think--
Byron R. White: No, I don’t-- let’s just say first sentence, second sentence, third sentence, any sentencing, a judge may not take into consideration the fact that the defendant denies his guilt and shows no remorse whatsoever. I’m not arguing one side or the other of that. I just want to know what your positions are.
James R. Neuhard: Well, I think there was one comment that was made, although it’s a very difficult line to draw, that we’ve cited in our brief. It was quoted in People versus Button, a Michigan Court of Appeals case, which talks about the lack of remorse which has the line that was drawn which says you can take into account the positive aspect of remorse, but you can’t penalize the man who stands adamantly before the Court and protests his innocence because he may indeed innocent or he may be--
Byron R. White: So your answer is that it’s unconstitutional to take that factor into account?
James R. Neuhard: That’s correct. You can’t punish him for--
Byron R. White: And, if you’re wrong on that, you don’t have as good a case here, do you?
James R. Neuhard: If I’m wrong in the fact that you can’t take into account remorse? No, Your Honor. I contend that the situation, the comparison aspect of, first of all, that you can’t use the comparison aspect between the first incidence and the second incidence on the issue of remorse because it’s highly questionable why he was remorseful in the first place and, internally, that is whether the it’s first, second, third, or fourth sentencing is important when you talk about considering it in this particular case. That is because you have a competing right to appeal on this particular case, and any man who appeals is thinking about going to trial and it will be put in that position of claiming his innocence at the trial itself and that-- which are necessarily saying is that the sentence can be increased. We think it is important that there’s a difference between the first and the second sentencing on this remorse issue and, necessarily, a judge--
Byron R. White: I take it the state’s position is very close to saying that Pearce would never apply where there’s a-- where, in the first proceeding, there’s a plea of guilty which is said aside then there’s a retrial and conviction.
James R. Neuhard: Well, I wouldn’t chose to speak for what the state--
Byron R. White: And the judge as well. Arguably, in any one of those situations, the judge-- as long as the judge said I have seen something-- I have made an assessment of the-- reassessment of the defendant’s character that the first judge didn’t have.
James R. Neuhard: I’m not quite sure I understand the points you’re getting at, Your Honor. As far as the different-- the vagaries of having a man who plead guilty then appealing and having the plea set aside, there are multitude of reasons why that plea might be set aside. In this particular case--
Byron R. White: Well, the other side of the coin is that your position is that you should-- a defendant’s conduct in the second trial, in the Courtroom, should never be sufficient to abate Pearce.
James R. Neuhard: No-- yes, that’s precisely our points, Your Honor, because, necessarily, in the process of an appeal of a guilty plea that was improper would be the contemplation by the defendant that he’s going to trial and that if he only sits there and does nothing, so simply as his lawyer asserts his innocence by saying “prove my guilt at this particular time.” There are so many reasons why might be sitting there that it’s very difficult to predict just to what--
William H. Rehnquist: That’s quite different, really, isn’t it, if the man simply pleads innocent and says to the state “prove my case” or even if he takes the stand and testifies on issues that he could be believed on consistently with an overall verdict of guilty and compare it to the getting on the stand and saying that I was in such and such a place and not where the crime is committed. That there are all different ways in which he could legally assert his innocence.
James R. Neuhard: That’s correct, Your Honor. We agree with that and, because of that very factor, we think that there should be a due process hearing on the nature of his changed testimony which might necessarily exist in all cases where a plea has been vacated in the trial of Pearce. He’s entitled to be heard as to why it occurred in this particular way.
Byron R. White: Wasn’t there a second hearing?
James R. Neuhard: There-- well, in Michigan, Your Honor, you have a right to elocution which the lawyer exercised and which the judge recognized.
Byron R. White: The defendant was there, wasn’t he?
James R. Neuhard: That’s correct, Your Honor.
Byron R. White: And didn’t the defendant-- didn’t the judge say that-- why he took it into account?
James R. Neuhard: Your Honor, at the first sentencing, he stated the main reason why he was increasing the sentence was because he now knows more about the crime than the first judge knew about the crime, and we’re contending that that is just factually incorrect and, because that’s the major factor he took into account, that the worst for Mr. Payne that can happen in this is that it should be remanded for resentencing at that particular time.
Warren E. Burger: Well, inevitably, just as a matter of time, of sequence, he was bound to know more because he knew about the intervening Bradford trial which the first judge couldn’t have known about because it hadn’t happened.
James R. Neuhard: Well, the first judge did know about the intervening--
Warren E. Burger: He didn’t know about it when he sentenced him.
James R. Neuhard: Yes, he did. He sat at the Bradford trial.
Warren E. Burger: No, but in the first trial when he sentenced this man. Had the sentence not been announced?
James R. Neuhard: No, Your Honor. They held off sentencing until he ha testified.
Warren E. Burger: After the Bradford trial?
James R. Neuhard: After the Bradford trial.
Warren E. Burger: I see.
James R. Neuhard: So, the first judge knew necessarily all there was to know about this particular crime itself. Now, our basic contention is that if there are occurrences within the second trial itself which might or might not amount to perjury, that because of this Court’s statements in cases like Morrissey v. Brewer and Humphrey v. Cady, the recent cases, that you should be entitled to some due process hearing whenever the sentence is going to be increased or the terms of your confinement are going to be changed to give the defendant to come forth and respond to those claims. In Michigan right now, this is so close. What happened in this particular case is very close to in re Murchison. You have a judge sitting up there, without any kind of any opportunity to approach the judge, have the defendant take the stand and testify. You have an increase of 7 years on the minimum and 20, I believe it was 10 years on the maximum, and you can-- that kind of a procedure where the terms of confinement, the length of confinement can be changed without any kind of a hearing, I feel, is just reprehensible under these fact situations.
William H. Rehnquist: But, in Williams, we said the original sentence could be imposed.
James R. Neuhard: Pardon?
William H. Rehnquist: In Williams, we said the original sentence could be imposed on that basis, didn’t we?
James R. Neuhard: Well, we have no qualms with the original sentence being re-imposed in this particular case.
Warren E. Burger: Including the death sentence, a choice between life and death was made in Williams, wasn’t it?
James R. Neuhard: Yes, Your Honor, but the-- in this particular case, what we’re concerned with is the actual increase in the punishment or the potential for rehabilitation as you will, of this particular individual of seven years. He had served at this particular time seven years of imprisonment. He went back to Court and got almost basically all that time over again to do, with no time given for that seven years to sue.
Warren E. Burger: I can understand his discomfiture over that. We can all understand that. But, as a practical matter, your experience as a public defender, it would-- isn’t it a fair statement that at the end of a trial or at the end of a guilty plea, the guilty plea sessions, a judge frequently may have a certain impression about what he’s going to do. He may indicate to counsel that he is-- will very likely grant probation, but sentence is deferred until he gets the presentence report and then he gets the presentence report, and then he will not consider probation because, at the time of a guilty plea and the right of elocution occurs, the defendant or the man is putting his best foot forward, but when the presentence report comes in, as in Williams, a whole new panorama is opened to the judge. Isn’t that-- as a practical matter, doesn’t that happen?
James R. Neuhard: Yes, Your Honor, it does.
Warren E. Burger: So that the situation can change by a virtue of different impressions about the prospects of rehabilitation.
James R. Neuhard: That’s correct, Your Honor, and it’s that very danger that we’re talking about in this particular case, and when you have--
Warren E. Burger: And you’re supposing it takes a due process hearing to evaluate that second process?
James R. Neuhard: That’s correct, Your Honor, because what they’re alleging here is a separate crime and they’re giving him no opportunity to be heard on that particular crime.
Warren E. Burger: Well, in Williams-- going back to Williams. In Williams, the district-- the sentencing judge actually, as I recall it, went around the neighborhood and talked to people and got information about him, and then had a presentence report, perhaps in addition.
James R. Neuhard: Well, we don’t know--
Warren E. Burger: It was on the basis of that ex parte information in which the defendant couldn’t have any possibility of challenging any of the information. He said “this man is going to be sentenced to death". Wasn’t that the hole issue, that there was no due process question involved in Williams?
James R. Neuhard: We do not relent for a minute on the position that we should have access to that presentence report and have some control over the information being generated by that particular report. Those cases-- we have over 500 cases in Michigan right now pending in our office, and that’s one of the major case-- issues we are bringing to the Court’s continually is the right to see that particular presentence report and the right to respond to the information within it, but accepting the fact that a presentence officer will do his job properly, which we do not know whether it occurred in this case or not. They had all the opportunity to do that at the first sentencing. Now in this particular case, after that first sentencing, his conduct was exemplary and the judge noted that on the record. That’s what prevented him, he said, from giving the man life imprisonment.
Byron R. White: His conduct in prison?
James R. Neuhard: That’s-- well, where else would he be, Your Honor, with the 19--
William J. Brennan, Jr.: He was being tried at the second trial.
James R. Neuhard: In the course of the second trial, when the con-- when the potential charge is one of-- that amounts to perjury, which at this particular case it was.
William J. Brennan, Jr.: Well--
James R. Neuhard: If this were any other individual, he’d have a right at that particular time to have--
William J. Brennan, Jr.: Mr. Neuhard, is it clear in this case that the second judge, when he-- when the second sentence was imposed, took into account in assessing the defendant’s character and his conduct since the first trial, compared his conduct with his conduct at his guilty plea?
James R. Neuhard: Yes, Your Honor, they did.
William J. Brennan, Jr.: Now, so he is saying that while he had read the transcript at the first sent-- at the first guilty plea, is that right or not?
James R. Neuhard: He read the transcript of the first guilty plea? I would assume so, from his conducts.
William J. Brennan, Jr.: Well, did he say that while he had confessed his guilt at the first guilty plea, he denies it now?
James R. Neuhard: Yes, Your Honor. He talked about the lack of remorse.
William J. Brennan, Jr.: Now, isn’t this using a guilty plea that has been set aside as invalid as the product of coerced confession, isn’t it using that guilty plea in some way a subsequent proceeding?
James R. Neuhard: Yes, it is, Your Honor.
William J. Brennan, Jr.: Do you make that point or not?
James R. Neuhard: We do inferentially, Your Honor, in that we consider any content-- any consideration of a lack of remorse was improper, and that’-- gets to the point where he said “you confessed in the first trial and now you’re not.”
William J. Brennan, Jr.: Well, I know. But, that would be the same even if he didn’t-- even if he never knew have pleaded guilty the first time.
James R. Neuhard: Well, he didn’t state it that way though, Your Honor, that “because you plead not guilty in this trial, I’m taking into account your lack of remorse.” He referred back to the original proceedings in this particular case because, as his first affidavit stated in this particular case, of the many points he made, about 8 of them dealt with his increased knowledge of the defendant and also his apparent lack of remorse that he had one time had expressed for the shooting of the two police officers, and it was directly related to the product of his first pleas. There’s no contention that it was an internal to the second trial in the sentencing that he was entirely consistent.
Warren E. Burger: You’re not attacking the basic conviction, just the increase in the sentence.
James R. Neuhard: That’s correct, Your Honor.
Warren E. Burger: So, that means that in this Court, here and now, today, it must be accepted that the verdict was correct and the judgment of conviction was correct, namely that he did shoot these police officers.
James R. Neuhard: Well, the verdict, as it stands, that the jury found that he in fact had shot the police officers is, at this time, a valid verdict.
Warren E. Burger: At this time? Well, are you suggesting a challenge to it?
James R. Neuhard: I won’t speak for what Mr. Payne intends to do with that particular conviction as far as collateral re-attacking it but, at this time, this Court can approach the conviction as being valid, the conviction itself. In that particular proceedings, Mr. Payne has indicated, took the stand, testified as to why he didn’t have the car and the gun. The jury chose to believe the state’s evidence and you can-- whatever inferences are permissible to draw from that, this Court, I think, is engaging in speculation compared to the right he was attempting to assert which was his right to appeal, his right to have a higher Court review what occurred in the lower Courts and that, primarily, is the thrust we’re making. That, if this particular Court is-- will allow lower Courts to take into account internally the lack of remorse that he shows at the second trial or compare it between the plea and the trial. That it is highly speculative to compare it to the rights which are being asserted and, also, that Michigan’s present sentencing scheme takes those factors into account that the indeterminate sentencing, by its very nature, is taking into account the character and the makeup of the individual. Further, I’d like to point out to this Court that Judge Hadsol, the first sentencing judge, on the issue of remorse said that you may get out early if your present condition continues. He was implying directly in there what the Department of Corrections can do, which is hold a man longer if he’s recalcitrant, if he is not showing positive signs to being able to return to the community. That, Judge Hadsol was very aware of this particular problem, and to allow perjury to be-- and I think it’s very important to state here, to allow perjury and increase a sentence in a second trial is a very dangerous precedent because anybody who appeals from a guilty plea and then goes to trial and states his reasons and is convicted would necessarily, under that implication, be guilty of perjury. It does away completely with the requirements of trying a man for perjury, and that’s a very dangerous precedence whether you’re talking about appellate matters or whether you’re talking about simply the first sentencing matter. That, it’s very important that an individual feel that he can take the stand and state what he wants to state and that he has the due process rights following that particular statement if he’s going to be charged with perjury.
Thurgood Marshall: What’s perjury in Michigan, five years?
James R. Neuhard: In this particular case, it would’ve been life imprisonment.
Thurgood Marshall: For perjury?
James R. Neuhard: That’s correct, Your Honor. There is a-- the perjury statute in Michigan states that the maximum 15 years imprisoned, unless the charge-- the crime of which you were charged was life imprisonment. In this particular case, the crime was life imprisonment potentially and he carried a life imprisonment.
Warren E. Burger: So that there wasn’t much percentage in the prosecution prosecuting him for perjury with-- in light of the heavy sentence he already have.
James R. Neuhard: Well, Your Honor, if they wanted to increase the sentence, if they felt that it was important for his sentence to be increased because of the nature of his perjury, then I feel they could’ve gone to trial and the judge certainly, at that time, was free to give him up to life, but he would’ve at least had the opportunity to appear in Court and test-- and attempt to justify why he said what he did, and he would have all the concomitant rights that go with it. He would have had at least a hearing which, in this particular case, he didn’t even get a hearing, let alone a trial on the matter and to be in front of a jury because, as I indicated--
Warren E. Burger: Did he not have a trial before a jury?
James R. Neuhard: Not on the issue of perjury, Your Honor.
Warren E. Burger: Well, when a defendant takes the stand and testifies, does he not tender the truth or falsity of his own testimony?
James R. Neuhard: That’s correct, Your Honor. That’s why he takes the oath, and the whole point behind the-- if the oath itself is not followed, that’s why we have a perjury statute in Michigan that is so severe, because of the collateral consequences of it.
Potter Stewart: Mr. Neuhard, referring to Judge Burns’ affidavit executed last November 29th and appearing on page 21 (a) of the affidavit-- of the appendix, the paragraph 4 there seems to be an open invitation for this Court to order the production of the supplemental presentence report. At least that’s how I read it. It’s an affidavit filed in this Court and he says he can’t make it public but which a higher Court than this one can order it produced. I read that as an open invitation. Would you have any objection if we accepted that invitation?
James R. Neuhard: No, I would not, Your honor, but I think it would point out to the Court that in our appendix A, we have the motion where we made-- which we made for the production of the presentence report and, in that particular motion itself--
Potter Stewart: Now, appendix, what page?
James R. Neuhard: It’s at page 1 (a) of our appendix.
Potter Stewart: Thank you.
James R. Neuhard: Of our brief.
Potter Stewart: Of your--
James R. Neuhard: Of our brief on appeal. It’s the white copy, Your Honor.
Potter Stewart: Okay.
James R. Neuhard: On page 3 (a) of that particular appendix, Judge Burns states this Court has followed a general-- a policy, generally, in sentencing, to tell the defendant exactly what it is and the presentence report that has influenced him and to give the defendant to explain or to correct it. In this particular case, we are relying on Judge Burns’ statement that he has stated all the reasons why he increased the sentence, and there’s nothing in that particular presentence report.
Warren E. Burger: In what page was that on?
Potter Stewart: Well, he says that it is.
James R. Neuhard: It’s on page 3 (a) of our appendix, Your Honor.
Warren E. Burger: I think it’s 3--
James R. Neuhard: In the bottom page.
Potter Stewart: He implies at least, I thought, that there was something here, an addition here--
James R. Neuhard: I think it’s clear, Your Honor, he-- there is a clear implication that there might be something in there but, assuming he filed his general policy which he stated here, then he would’ve stated all his reasons.
Potter Stewart: Well--
James R. Neuhard: We assume there is nothing.
Potter Stewart: One of who sought could--
James R. Neuhard: That’s--
Potter Stewart: Could determine or could resolve the ambiguity.
James R. Neuhard: That’s correct, Your Honor.
William J. Brennan, Jr.: Are you familiar with the case of Giles and Maryland?
James R. Neuhard: Not directly, Your Honor.
William J. Brennan, Jr.: That’s a case where this Court called a presentence report, turned to resolve on what we founded on.
James R. Neuhard: We are-- I’d like to point out one factor in this particular case which I mentioned at the outset, which is this is a very complex case. Judge Burns has now have four opportunities to state why he sentenced this particular man. At the first sentencing, he stated “I’m not sentencing you because of your appeal.” Then, he had the second affidavit. He had the affidavit in this Court and at the opportunity on our motion for production of the presentence report, and we feel that-- I don’t know how many more opportunities a man should be given to state why he sentenced a man, but that it should be within the confines of these particular affidavits.
Potter Stewart: Well, this would be within the confine of the affidavit on November 29th, paragraph 4, wouldn’t it?
James R. Neuhard: Well, yes, Your Honor, but I feel that there shouldn’t-- according to how I read his implications, there should not be anything there. But, again it makes it difficult for counsel to approach the affidavit if this is the method it is to be employed.
Potter Stewart: Certainly, it does. That’s the reason I asked the question if you would have any objection.
James R. Neuhard: Well, Your Honor, I-- in that, I don’t expect there’s anything in there. If there is, I would be very surprised by his comments and I would object too if there is something in there or this Court feels there’s something in there, not having the opportunity to respond to it because we made the good faith effort to get it and told Judge Burns that he had the power to release it to us, and it was denied to us. So, I assume there is nothing in there that we have before us on the affidavits which the Michigan Supreme Court, by the way, requested from him, his reasons for the increase. And, in that affi-- in the affidavit he gave to them, whatever he stated, they found wasn’t enough.
Potter Stewart: I know.
James R. Neuhard: In which he stated the subsequent conduct and they also-- he also stated the lack of remorse and the contrary testimony. They found, as a matter of fact in law, that it was not enough.
Potter Stewart: But this new one is filed, as you know, in this Court and he does make this reference in paragraph 4 and does point out that a higher Court, presumably this one, can order it to be produced.
James R. Neuhard: That’s-- I know he said that, Your Honor, and I’m at a loss as to-- we did everything we could do to obtain that in time to come to this Court, and we have not been able to obtain it. I would assume that in--
Thurgood Marshall: He didn’t offer to give it to you.
James R. Neuhard: Pardon?
Thurgood Marshall: In his affidavit, he didn’t offer to give it to you.
James R. Neuhard: That’s correct, Your Honor, he did not.
Warren E. Burger: I suppose there’s nothing in the record that would show how long a hearing was held at the time of the original guilty plea and sentence, but I suppose also that that’s a relatively brief procedure.
James R. Neuhard: In Michigan, as a matter of fact, it is a very brief procedure.
Warren E. Burger: And the judge says in his affidavit that, without going into what is already part of the record, and now I’m ensurging because there’s an antecedent I, was greatly influenced by the brutal details of the crime which, over three days plus-- which, over a period of three days, plus its-- the judge’s owns impressions of the defendant during these days, plus the impression of his testimony during those trials. So, the judge has a great deal more, in that sense, a better opportunity to observe and make-- draw inferences from the conduct of the defendant than the sentencing judge on a guilty plea, wouldn’t you agree?
James R. Neuhard: No, I would not. Not in this case, Your Honor, because the first judge had sat on the trial of Lionel Bradford and heard all the testimonies. In fact, both police officers testified there, not just the one as they did at his second trial.
Warren E. Burger: Then you’re saying that when he said that, this is not true.
James R. Neuhard: That’s correct, Your Honor. I’m suggesting that he was unaware at the time or just didn’t take into account the fact that Judge Hadsol had known all the facts.
William J. Brennan, Jr.: As a matter of fact, what he said at the second sentencing, in effect, retracted in the affidavit that he’s filed in this Court because he now acknowledges what he said was not the case at the second sentencing, namely that Judge Hadsol did have the opportunity to know all about the case because he presided at the de facto trial.
James R. Neuhard: That’s correct, Your Honor.
William J. Brennan, Jr.: And we don’t-- and that first comes to the record when we get the affidavit here in this Court.
James R. Neuhard: That’s correct, Your Honor. Are there any other questions?
Warren E. Burger: Very well, Mr. Neuhard.
James R. Neuhard: Thank you.
Warren E. Burger: We’ll enlarge your time in due of the enlargement here. You can have about four minutes. You were down to one.
John A. Smietanka: Thank you, Mr. Justice. With regards to the case of the presentence report, in the argument before Judge Burns and prior to it, in the formal argument, the actual argument before him, before the final ruling was put in the record and included in the appendix, it was suggested to Mr. Benson by myself and also, I believe, by the judge that we would have no objection and we suggested that he come up to this Court and say-- request the Court to free this-- to bring this presentence report to this Court, and so it’s not a question of exhausting all alternatives because that alternative was suggested to him.
Thurgood Marshall: Giving them a copy of it?
John A. Smietanka: This would then put the burden on this Court. If the Court wanted the defendant to have a copy of it, the judge would have no objection-- could have no objection.
Thurgood Marshall: The only way that the defendant can see it is for us to order. That’s the only way in the world?
John A. Smietanka: That’s the way the ruling was made, yes, Your Honor, and the reason for it was that because of Judge Burns’ feelings on the matter of disclosure of presentence reports which eh included in his ruling, the reasons why he feels they should be confidential and to-- namely to protect the sources of the information and not to have these sources dry up and to give the judges as much latitude as possible to consider information, both favorable and unfavorable, to the defendant. With regards to the time between the original plea and the original-- pardon me, the original sentence and the original appeal, there was some doubt as to how long that was.The record will indicate it was three years. The case of Murchison was cited several times and we feel that it’s not applicable at all. In that case, we’re dealing with the determination by the same judge and only by that judge of whether or not perjury had been committed. When the first determination was made or the perjured statement or the alleged perjured statement was made in a one-man grand juror situation, there was only one person there to hear the perjury, and that was the one-man grand juror himself and the Court required that that type of proceeding required a full hearing by another judge for the contempt citation to stand. And furthermore, with regard to the issue of perjury, I’m not absolutely sure, but I believe that the law in Michigan as it stood at the time of the second trial or the trial was not because it was punishable by life but rather by 15 years and that it was subsequently amended to make it life. I believe there’s some question in that area, but the-- I do not know the citation of that. I can’t give it to the Court. Thank you.
Warren E. Burger: Very well. Mr. Neuhard, you were not appointed by the Court in the usual procedure but you came here at our request, indirectly at least, and on behalf of the Court, I want to thank you for your assistance not only to your client, but your assistance to the Court. Thank you, Gentlemen. The case is submitted.