Warren E. Burger: Brady against the United States. Mr. Adang, you may proceed whenever you're ready.
Peter J. Adang: Mr. Chief Justice, may it please the Court. I represent the petitioner Robert M. Brady in the case of Brady against the United States which is on writ of certiorari to the United States Court of Appeals for the Tenth Circuit. This case involves a denial of a motion to vacate sentence made under Title 28 Section 2255 of the United States Code. I believe that this case presents three issues for resolution by this Court. These are, first, whether the decision of this Court in the case of United States against Jackson will be given retroactive application to prior guilty pleas under the Kidnapping Act. Secondly, if the decision is to be given such retroactive application, the question is what test will be formulated to determine when such guilty pleas were involuntary prior to that decision? And finally, assuming that the Court does make Jackson retroactive as suggested and does formulate an appropriate test, how the facts of the petitioner's case fit within that test? I would like to depart somewhat from orthodox procedure on oral argument and address myself initially to the first issue which I have mentioned and that is the retroactivity of the Jackson decision. And the reason I'd like to do this if the Court would allow me is because I feel that this is a question which can and should be determined as an abstract proposition of law without reference to the facts of this case or any particular case for that matter. Also, I would like to say that at this time that since we only received the Government's answer brief last Monday, we're unable to have an opportunity to file a reply brief and therefore I'd like to try to concentrate on attempting to rebut the arguments which appear in the Government's answer brief. The Government has taken a position on retroactivity which we feel is essentially a negative argument which as a practical matter would allow very little or possibly even no retroactive application of the Jackson decision. The Government quite directly points out in its answer brief that there are apparently two underlying purposes for Jackson. First, to prevent discouragement of guilty pleas and deterrence or encouragement of guilty pleas and discouragement of the exercise of the right to a jury trial and secondly, to stop penalizing those defendants who do assert their constitutional rights to a jury trial and to plea not guilty. Essentially then, the Government's argument is that we should only apply Jackson retroactively to those cases in which a defendant has pled not guilty and then tried, convicted, and sentenced to death. We of course take the position that the first purpose which we believe is inherent in Jackson should also be given retroactive application and we have brief 3 arguments in support of this contention as alternative arguments for retroactive application of the decision to prior guilty pleas under the Kidnapping Act. The first of these arguments we believe is that it is implicit from the language of the case itself that it should be given such application retroactively. This Court held in Jackson that the evil in the selective death penalty provision of the Kidnapping Act was that it tended to discourage assertion of the right to plead not guilty and deter the exercise of the right to a jury trial. Now, this evil while it wasn't necessarily coercive was held to be needlessly encouraging of guilty pleas and this, the Court said, had a chilling effect upon the exercise of constitutional rights. That chilling effect being unnecessary was therefore excessive. We submit therefore that the rationale behind Jackson or the implicit rationale was that if the selective death penalty provision had been allowed to remain in the Kidnapping Act, there would have been a potentiality in the future for involuntary guilty pleas and we submit that if that is recognized, then there has to be a recognition of the implicit corollary and that is that guilty pleas prior to Jackson might also have been involuntary. And if that presumption is accepted, then I feel that Jackson had to be given retroactive application to prior guilty pleas automatically because this Court has held in the past that involuntary guilty pleas are subject to collateral attack.
Byron R. White: I realize yours is a federal case, but in your retroactivity argument, do you think whatever rule that is appropriate here is also appropriate as application of Jackson to the states.
Peter J. Adang: I feel that it is Your Honor. Assuming that we're talking about a statute with the same kind of a selective death penalty provision --
Byron R. White: You are not concerned for that I recognized.
Peter J. Adang: Well, I believe that it should be applicable postulating that we have the same kind of a statute and the same kind of selective death penalty provision, I would submit that it should be applicable to the states. The Government has made an argument in rebuttal to our contention on retroactivity that when this Court stated in the Jackson decision that not every defendant who pleads guilty under the Kidnapping Act to a capital indictment does so involuntarily. This Court implicitly rejected any contention that prior guilty plea should be open to collateral attack. We feel that the conclusion hardly follows from the language of the case. We feel that all the case says is that the Court was not going to say that the selective death penalty provision was necessarily coercive because that would have meant invalidating all prior guilty pleas automatically. We submit that the Court merely was recognizing that some guilty pleas could be involuntary in the future and the selective death penalty provision then left in the Act, and as I stated before, I think the implicit corollary is that some guilty pleas in the past could also have been the involuntary. And for that reason, we submit that Jackson should be, under the language of the case applied retroactively to prior guilty pleas. Now, in alternative argument which we have made is that under the doctrine of absolute retroactive invalidity of an unconstitutional statute, there should also be retroactive application to prior guilty pleas. And because of the time limitation on this argument and the fact that the Government hasn't made any response to this contention, I'm going to skip over unless the Court has some question. Another argument which we made is again an alternative argument and the Court had heard it yesterday and that is that under prior decisions of this Court on the retroactivity question, Jackson should also be applied retroactively to prior guilty pleas. These decisions are discussed in detail in our brief in chief at pages 28 through 32 and I'm sure they're more familiar to the Court than they are to me so I'm not going to discuss them in any detail except to mention that the Court did say in the case of Linkletter against Walker that there are three tests for determining retroactivity of prior decisions and these tests are first, the purpose to be served by the new rule. Secondly, the extent of reliance upon the old rule by law enforcement authorities. And finally, the effect upon the administration of justice of a retroactive application of the new decision. In the Desist against United States, this Court held that the most important of these considerations is the purpose to be served by the new rule and it has been further held that when the purpose of the new rule is to ensure fair trials and reliable verdicts, in other words, to ensure integrity of the factfinding process, then that consideration is paramount and other consideration such as reliance by law enforcement officials or in adverse effect upon the administration of justice, deserve a little consideration. And we submit that under that philosophy, that the Jackson decision must also be given the retroactive effect which we suggest. The effect of the selective death penalty provision is the Federal Kidnapping Act in inducing individuals to plead guilty in order to avoid imposition of the death penalty was not merely to deny them a fair trial but it was to deny them any trial at all. And we submit therefore that it is obvious that the implicit purpose of Jackson was to ensure fair trials if individuals wanted trials and to ensure reliable verdicts if they are going to plead guilty. And I feel therefore that because of this and because of the authorities cited, Jackson should be given retroactive application to prior guilty pleas. Now, the Government had made to arguments in response to this. First, the Government has said, “If we give Jackson such retroactive effect, we're probably going to have a substantial adverse effect upon the administration of justice.” But in the very next breadth, the Government says, “Well, there are only about a 120 federal prisoners now in custody under guilty pleas or bench trials under the Kidnapping Act.” And then it further admits that not all of these individuals are incarcerated under capital indictments and as I will show the Court later, we're only concerned here with capital indictment situations. So the number of individuals that we're dealing with is something less that a 120 under the Kidnapping Act. Even if we add to this number, those individuals who are incarcerated under the Federal Bank Robbery Act or similar state statute having selective death penalty provisions, we submit to the Court that the number we're talking about really isn't that great. And even if every one of these cases were to be reviewed on a collateral attack, we don't feel that there would be a substantial effect, adverse effect upon the administration of justice, especially when compared to the potential adverse effect that there would have been had this Court made in Miranda or Griffin or Mapp retroactive. I had one of those decisions had been made retroactive, the effect would have been on literally thousands of prior convictions as opposed to mere handful of cases we're talking about here. So we don't feel for this reason that the argument of the Government on a substantial adverse effect is really supported by the facts which the Government cites. In addition to this, the Government has made another argument and this is that purpose of Jackson doesn't require that we give a retroactive effect to prior guilty pleas. The Government says and I pointed this out previously that Jackson --
Potter Stewart: Mr. Adang, does the -- is the decision in your favor on retroactivity have impact far beyond the Kidnapping Act?
Peter J. Adang: I don't believe it would Your Honor. We'll the Kidnapping Act and the Federal Bank Robbery Act and state statutes where we do have selective death penalty provisions --
Potter Stewart: Well that may be in six, seven or eight states. So when you start counting that numbers, you can just talk about significance.
Peter J. Adang: Well, that is a possibility but I don't think that the Government has submitted --
Potter Stewart: Possibility?
Peter J. Adang: I believe so, Your Honor. As I stated --
Potter Stewart: Isn't it stronger than that?
Peter J. Adang: Well, I don't know how many cases we're talking about. Certainly I don't think it would be the kind of effect that we would have had in Miranda been made retroactive.
Potter Stewart: Well since we don't know, you can't just say its 120. No, I didn't say it was 120 Your Honor. I didn't mean to imply that, I'm sorry. All I'm saying is that the Government's arguments on the substantial adverse effects, simply isn't supported by the facts which they cite in their brief. And therefore we have a nebulous question. As I was stating, the Government has made a second argument on the purpose of Jackson and they state that Jackson should only be applied to those cases in which an individual has plead not guilty and been tried and convicted and sentenced to death.
Byron R. White: That -- that was the holding of Jackson, wasn't it?
Peter J. Adang: No, it wasn't Your Honor, because Jackson -- the facts in the holding of Jackson --
Byron R. White: The holding of Jackson didn't get the death penalty provision of the federal so-called Lindbergh Law was unconstitutional period, isn't that true?
Peter J. Adang: I believe that that is correct and I think that while the facts of Jackson were very limited, I think that because of the holding, it encompasses our argument and the retroactivity. I think that the Government's argument as I was pointing out is essentially a negative argument because unless the Government has found some magical formula for resurrecting the dead, I don't think that there would be very much retroactive application under their theory. I don't again have all of the figures on death penalty convictions but as I understand that there are only been six of them under the Federal Kidnapping Act and I understand also that all of these people have already been executed, even again if we take into consideration the possibility that there are some people now under death penalty sentences under the Bank Robbery Act which I don't believe there are because the only case that's come up in the past year has been Pope against the United States. And the individuals who may be sentenced under state statutes on death penalty were probably not talking about a very great number of individuals and I think it's really infinitesimal and I feel therefore that essentially the Government's argument for retroactivity is that there wouldn't been any retroactivity or very little in any event.
Warren E. Burger: Does the rational you are urging on us have any possible application to situation where a defendant enters a guilty plea to, let us say, any lesser offense, manslaughter on a second-degree murder charge where no death penalty is involved, where he is giving up his jury trial in order to avoid a heavier penalty?
Peter J. Adang: I don't believe that it does, Your Honor, and if I may, I'll address myself to this argument because the Government has raised it in its answer brief. The Government takes the position that even if we have needless encouragement in this case or in any case we're dealing with of a guilty plea, that doesn't equate with involuntariness or coercion and therefore, evidence of needless encouragement is irrelevant, so the Government cites in factual support of this the situations involving multi-count indictments or several indictments against the same individual or the lesser degree of the same crime. And the Government says that in this situation, an individual might very well be encouraged to plead guilty to a lesser degree of crime in order to have some counts dropped against him or some indictments dismissed or to get a lesser degree to avoid a harsher penalty.
Warren E. Burger: Isn't that the whole idea underlying the concept of plea negotiations and discussions? That's correct Your Honor, but I think that there is a definite distinction. I think that in the plea bargaining situation, it is implicit that the penalties which the state can't create for the various degrees of crime are all valid in constitutional penalties, in other words, the state can create a crime of first-degree murder and make that penalty and sentence and create a crime of second-degree murder and make 20 years the maximum sentence. And in that situation, the individual is definitely encouraged to plea guilty to the lesser degree to avoid the harsher penalty but as I stated, the distinction is that there, the Government or the state can create the alternatives and therefore the choice that derives from those alternatives is not unnecessarily compelling. In other words, I would submit that there the encouragement is only incidental to the fact that there is a choice available and that encouragement is not unnecessary and is not excessive whereas in the death penalty situation, it's inherent in the opinion of Jackson that the fact there is a choice available, is itself compulsion, is itself unconstitutional. There the Court, well it's implicit in the essence of that decision, that the state cannot create two different penalties for exactly the same degree of crime and impose the harsher penalty only when the individual chooses to assert his constitutional rights. So therefore in that situation, because there is a choice, which is compelled and that choice is unnecessary and avoidable, the encouragement which resolves from that choice is also unnecessary and excessive. And I believe it's sufficient to make a guilty plea involuntary. So what we end up with this situation in the plea bargaining case, we have a choice available but that choice is one which can be imposed by the state. The encouragement which derived from that choice is therefore not unnecessary and not excessive and not illegal. However, in the Jackson situation or the Kidnapping Act situation, the fact that there is a choice is itself unconstitutional and therefore the encouragement which derives from that choice is unnecessary and excessive and can be avoided in the words of the Government. So I don't think that if we're going to make Jackson retroactive as we suggest that that is necessarily going to affect the plea bargaining situations --
Potter Stewart: What about the situation where there is a bargain for penalty without the bargain for a lesser degree or another crime or through the defense, is the straight charge and the plea of guilty in return for recommendation not only in certain sentence, then you are right in fact in Jackson, absolutely as you read it?
Peter J. Adang: To some extent, but in that situation, it's obvious that the recommendation is not binding on the Court so there's really no guarantee.
Potter Stewart: Well, I know, but the Court accepts it.
Peter J. Adang: Pardon, Your Honor?
Potter Stewart: The Court accepts it and what if it were acceptable? What if they plead -- pled guilty and the bargain wasn't kept?
Peter J. Adang: Well, again I don't think that would invalidate the plea because the Courts have always held in this kind of situation the recommendation of the United State's attorney or the prosecutor in the case is not binding upon the Court. So, I don't think that in that situation, the claim of the plea was involuntary would be necessary upheld.
Potter Stewart: But if it were accepted, if the Court followed the recommendation, the Court asked the prosecutor what he recommends, perhaps that isn't the practice but assume it did and the prosecutor made the recommendation and it was taken and accepted and there was a plea of guilty?
Peter J. Adang: Well again, I think all I can say about is you get down to a negotiating situation or bargaining situation and we've always held that plea bargaining is not itself invalid whereas in the situation of the death penalty provision, that's there in the statute and it itself creates a compulsion. Another analogy might be the situation where a judge on arraignment says to the defendant, “If you plead guilty, I'm going to give you 20 years of imprisonment. If you plead not guilty and are convicted, I'm going to give you 50 years of imprisonment. And I think in that situation, it's fairly obvious that the guilty plea of one results is invalidated. It is involuntary. And I think that our situation here is instead of the judge saying that, the statute says it, is you plead not guilty, the maximum penalty is the death penalty whereas if you plead guilty, the most you can get is life imprisonment. So, I feel that that is a more consistent analogy with the situation and does support our argument. I was going to say previously that in addition, the Government's theory if one thinks about it would be to punish the potential innocent individual and reward the guilty individual. In other words, the Government would say, “Let's reward those people that were tried and convicted and sentenced to the death penalty by reducing their sentences.” But let's not go into prior guilty pleas on collateral attack and thereby I think we would potentially punish individuals who might be innocent or who might be incarcerated because of the clear violation of their constitutional rights. So, I think, for all of these reasons, Jackson should be given the retroactive application which we request. With that, and assuming that the Court does adopt that argument, I'd like to give a brief statement of the facts of this case to present the framework for the remaining arguments which we have in our brief. Now Brady here was indicted under the Federal Kidnapping Act on January 27, 1959 and it was a capital indictment. He was arraigned on the following day and he pled not guilty. On April 30, 1959, he was again brought before the judge and he changed his plea from not guilty to guilty. And on May 8, 1959, he was sentenced to 50 years imprisonment which was later reduced by executive clemency. On September 20, 1967 he filed his motion to vacate sentence and as I stated in his motion, he contended that his plea was coerced and nor entered freely and voluntarily and the argument he made was essentially the argument which appeared in the Jackson case. There were other claims in the motion but they are not issue in this proceeding. On March 20, 1968 his came on for hearing and evidence was introduced on all of the claims and the evidence and the influence of the death penalty provision is set out in our brief, I'm not going to try to go into it, it's quite detailed but I believe that the Government has admitted in it's answer brief that Brady was undoubtedly encouraged and motivated to plead guilty by fear of the death penalty and his desire to avoid the imposition of death penalty. After all of the evidence was in the District Court denied, the motion on all of the grounds stated and it held that the Federal Kidnapping Act was constitutional and I feel that it implicitly held that because the statute was constitutional, Brady's claim that fear of the death penalty coerced him was without any merit. On April 8th of last year, this Court handed down the decision of the Jackson case and the denial of Brady's motion was then appealed. And the Tenth Circuit on December 17, 1968 affirmed the decision. Now, the Tenth Circuit apparently held the decision in the Jackson case should be applied retroactively to prior guilty pleas but it went on to state that the existence of the prescribed provision did not necessarily imply that all individuals prior to Jackson who had pled guilty did so involuntarily. And therefore, to affirm the District Court's conclusion that Brady's guilty plea was influenced and encouraged by factors other than the death penalty provision. It held that that was supported by substantial evidence. And the second point in our brief in chief we have proposed a test to be utilized by District Courts in determining when prior guilty pleas are involuntary. As I stated before, we're only concerned here with cases where the death penalty was a reasonable possibility and that would only those cases where there was a capital indictment. Once that requisite is satisfied, the next question is what kind of evidence will be necessary to show that a guilty plea is involuntary. And I submit that the only practical and reasonable test that can be formulated is a simple test and rather undefined and that is, that if the District Court can find from the evidence, that fear of the death penalty and the desire to avoid the imposition of death penalty was a definite factor or substantial factor in motivating the guilty plea, then that should be sufficient to invalidate the guilty plea. Now --
Warren E. Burger: Would there always be a definite factor, how could if not be?
Peter J. Adang: Well, I think there you can probably postulate situations Your Honor where it wouldn't be. For example, I think maybe in the situation where an individual was indicted under the Kidnapping Act and also was indicted under the state charge for first-degree murder, he might conceivably very well plead guilty to the kidnapping charge to have the state charge against him dropped and he might not even consider the possibility of the imposition of the death penalty under the Kidnapping Act. But really, that kind of argumentation doesn't lead anything to the question. It kind of obfuscates the issue. I think there are certainly can be cases wherein an individual would plead guilty not out of fear of the death penalty but out of a genuine sense of guilt. The practical question is in every one of these cases an individual is going to claim that he was afraid of the death penalty and he get involved in an evidentiary problem. And the question is, how do you resolve that? And I think that the only way to do that is to give the district courts this general test and let them go from there because I think as a practical matter the District Courts aren't going to believe the testimony in every case of the defendant himself that he was afraid of the death penalty, I think they are going to require that there would be some more independent objective evidence of the influence of the death penalty. And I think that this kind of evidence could come from the lawyers that were involved, or from possibly other witnesses who were involved at the time who would have less of a motivation to fabricate a story than to accused himself.
Warren E. Burger: But if there is complete implementation of Rule 11 on the judge who takes the plea makes an inquiry which develops all the facts which accumulatively would make for guilt? Would you then say that that satisfies the test that you have advanced?
Peter J. Adang: That's postulating leaving the selective death penalty provision and I suppose --
Warren E. Burger: Yes.
Peter J. Adang: And I would say no, it would not because I think that question has already been dealt within Jackson because --
Warren E. Burger: If there is a complete demonstration on the record at the time of the plea that the man is guilty, do you say that would not be enough under Jackson?
Peter J. Adang: Well, I don't know how you make a complete demonstration on the record at the time of the plea that he is guilty.
Warren E. Burger: Well, isn't that the purpose of -- isn't that the purpose and thrust of Rule 11, the New Federal Rules or the Amended Rule?
Peter J. Adang: The purpose and thrust is to determine whether he is making his plea voluntarily and not whether he is guilty or --
Warren E. Burger: And whether there is a factual basis for the plea? That's the language of the rule isn't it? Well, yes that's true, I stand corrected on that that is the basis of it to determine whether there is a factual basis and whether there are -- but the factual basis is a practical matter is determined by the defendant standing there and saying, “Yes, I did it” which is his guilty plea.
Warren E. Burger: Well, if the --
Peter J. Adang: In other words --
Warren E. Burger: -- district judge, if the trial judge is doing his task the way it should be done, he will not accept that, he will ask the man to recite what he did and develop on the record the full statement of all the facts that would -- a summary of the facts that would be in the case against him?
Peter J. Adang: Alright then adopting the court's line of reasoning, assuming there is some factual basis for the plea, that still does not necessarily rule out that fear of the death penalty would motivate and encourage that guilty plea. In other words, a factual basis does not necessarily mean that the man is in fact guilty.
Warren E. Burger: Your argument almost carries us to the point that you can't have a guilty plea in these circumstances?
Peter J. Adang: Well, with the death penalty provision in there, I would say that is correct. If we take the death penalty provision out, then we alleviate the problem. And that's crux of the matter. The death penalty provision is the fly in the ointment and I think if we take that out, then we alleviate the problem. I see that my time is rapidly coming to a close and I would just like to summarized our last point briefly and that is that it is clear on the record that Brady's guilty plea was encouraged and motivated by fear of the death penalty and that it was a substantial factor in his plea. His lawyers testified to this. Other witnesses testified to this and there was evidence on the statements made by the court to him at the time his plea and time of all of these proceedings. And the Government has admitted that there was encouragement of his guilty plea and I feel therefore that because of his evidence, Brady's guilty plea should be vacated and his motion to vacate sentence should be granted. The Government's argument is that, even if we show encouragement of a guilty plea under our test, that wouldn't be enough to invalidate the guilty plea because it wouldn't be involuntary and the Government cites cases which extensively hold that an individual can only show that his plea is involuntary if he is able to demonstrate that fear overcame his capacity to make a rationale decision. Now I believe that these cases are not in point, they all involve the plea bargaining situation which I have discussed previously with the Court. And it's always been held in the plea bargaining situation that guilty pleas bargained for are not involuntary. And I see that my time has run out.
Potter Stewart: Is there anything you didn't have Jackson on the books at all, would you be here at all?
Peter J. Adang: I don't quite understand the question Your Honor.
Potter Stewart: What if the Jackson decision had never been made?
Peter J. Adang: Well, if Jackson decision had never been made I think eventually if not this case, some other case would have obviously, this case was based upon Jackson because it was cited in the motion. But if Jackson hadn't been decided I think eventually a case would have gotten here anyway because I really believe that this is an invalid procedure and I think that it does induce involuntary guilty pleas.
Potter Stewart: Given Jackson Mr. Adang, what if your client had not pleaded guilty but had waived the jury trial and requested to be pleaded not guilty and request a trial before the judge and had been sentence to 50 years in the penitentiary as your client was, would you be here trying to set that aside under reasoning of Jackson?
Peter J. Adang: I think I would Your Honor, because I think that the third exercise of this right to a jury trial. But I think in this case, that's not a consideration because here, there's evidence in the appendix that the District Court prior to the plea had indicated that he would not allow bench trial. Thank you.
Warren E. Burger: Thank you Mr. Adang. Mr. Connolly.
Joseph J. Connolly: Mr. Chief Justice and may it please the Court. Post-conviction hearing in this case disclosed the following facts which should be emphasized. Petitioner was 24 years old when he pleaded guilty to a charge of kidnapping a young woman. An element of the charge in the Government's case was that petitioner and his codefendant raped their victim several times during the abduction. Petitioner was represented by competent and experienced counsel. After thoroughly investigating the case, counsel concluded, “That we just couldn't go to a jury, it would be almost sure conviction.” Petitioner's codefendant Tafoya had given a confession which fully implicated the petitioner. Thereafter, Tafoya decided to plea guilty and seek leniency from the Court when the ground the petitioner was the instigator and principal actor in the crime. Faced with the testimony of his victim and other witnesses including possibly his codefendant, petitioner with the concurrence of his counsel entered the plea of guilty. Petitioner now contends that his conviction must be set aside in the authority of United States versus Jackson. He does not argue that his guilty plea involuntary in a traditional sense which I will discuss in a few minutes, rather his arguments rest entirely when the Court's finding in Jackson that the death penalty provision needlessly encouraged guilty pleas in jury waivers. We must assume that such encouragement was present in this case, but the issue here is whether the needless encouragement so far undermines the validity of the guilty plea that petitioner is thereby entitled to release on habeas corpus. The function of the writ of habeas corpus, as the Court said in Fay versus Noia is to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints. He is continued incarceration under a needlessly encouraged guilty plea and intolerable restraints. We submit that it is not. In our brief, we consider two theories under which the validity of the guilty plea might be affected by the needless encouragement rational of Jackson. The first theory which I will discuss in more detail here is the Jackson announced a new standard to be applied in determining the voluntariness of the guilty plea. This is the approach taken the Fourth Circuit in the Alfred case which was argued yesterday. The second theory is unrelated to the concept of voluntariness, the elements of this theory are, one, that Jackson established in essence a right to be free from needless encouragement. And two, that this right should be applied retroactively so that all defendants who had previously pleaded guilty are entitled to automatic release on habeas corpus. Returning to the involuntariness theory, it is our submission that the determination of the voluntariness of the guilty plea to a kidnapping indictment is not affected by the decision in Jackson. Even before Jackson was decided, a defendant's extreme fear to death sentence after trial could have been shown to establish the involuntariness of his guilty plea. The fact that the statute created a needless encouragement added nothing to its coercive effect. It has long been held that in the involuntary guilty plea is invalid in subject to collateral attack continued incarceration under such a plea is in the language of Noia an intolerable restraint. We borrow from the more developed body of law concerning confessions for statement of the test of voluntariness, that is whether the fear or inducement to which the defendant must subjected was sufficient to overcome his capacity to make a free and rational decision. But more important than a statement of a test is an understanding of the policy considerations which underlie the rule. The first of these considerations is he overriding purpose of rules of criminal procedure to ensure the reliability of criminal convictions. We reject guilty pleas that the product of compulsive pressures because of our concern that such pressures may have caused the conviction of one who is not in fact guilty of a crime to which he pleaded. The second consideration which underlies the requirement of voluntariness is our concern for preserving the dignity and integrity of the individual in the criminal process. This is the fundamental principle enforced to the Fifth Amendment privilege against compulsory self-incrimination. It is inconsistent with our adversary system of justice to subject the individual to compelling pressures which overcome hid determination to make the state prove its case against him. With these considerations in mind, we think that the fear of the death penalty which overcomes the defendant's capacity to make a free and rational decision renders his guilty plea involuntary. Such a defendant who pleads guilty in a matter which precludes the death penalty is entitled to relief even if the death penalty provisions are entirely constitutional. But there is no showing in this case of a fear to death penalty which deprived the petitioner of his capacity to make a free and rational choice. He was represented by competent counsel who fully investigated the prosecution's case and the possible avenues of defense. Counsel concluded that there was no realistic hope of acquittal if the case went to trial. Petitioner had been counting upon the assistance of his codefendant Tafoya and the expectation that they would both give consistent exculpatory testimony. But when Tafoya who would giving the confession implicating the petitioner, decided to plead guilty, petitioner concluded that he had no choice but to do the same and seek leniency from the Court. There is no indication here that petitioner was so moved by fear of the death penalty that he could not realistically assess his chances for conviction or acquittal. This is not a case where the defendant abandoned a substantial defense because of his fear of execution. This is a case where the defendant knew he would be convicted and freely decided that there was no reason to risk the sentence of death. But the question remains whether petitioner's guilty plea should be viewed as involuntary because the death penalty was a needless or unnecessary burden on his right to a jury trial. We believe as Mr. Justice White recognized in a different context in the Harrison case that the compulsive effect of the capital punishment provision is not related to the necessity or the validity of the provision. The fact that the death penalty provision was subsequently declared invalid gives no additional reason to conclude that petitioner's will was overborne. It gives no reason to believe the petitioner was not in fact guilty of the charge. The needlessness of the encouragement we submit is not relevant to the question whether that encouragement produced an involuntary guilty plea.
Potter Stewart: Now, what's you're saying in your argument is leaving out the question for retroactivity that the Jackson decision has now impact upon what the issue is in determining whether the plea of guilty is coerced or not coerced?
Joseph J. Connolly: That's right Mr. Justice. I will leave to our brief the discussion of the alternative theory on which petitioner might be entitled to relief on the basis of Jackson. Under that theory, Jackson would be viewed as creating a new constitutional right to an unencumbered choice, the choice of plea or motive trial free from needless encouragement. If this right is given retroactive application, then petitioner and all other defendants who pleaded guilty under the Kidnapping Act or entitled to their immediate release. Although, we doubt the Jackson decision was intended to create such a right, we analyze this theory in our brief and we conclude that retroactive application of such a right is not appropriate because of the purposes of the rule do not cast out on the accuracy or integrity of prior convictions. Petitioner's argument that the principle of Jackson was that there was a possibility that there would be involuntary pleas in the future and hence, a possibility that there were involuntary pleas under the Kidnapping Act prior to the invalidation of the death penalty provision. It's fully answered as it was in Johnson versus New Jersey by the fact that such defendants have available to them, a vehicle to show, the involuntariness of their guilty plea. Finally, it may be argued that our inquiry has been too limited and that it is difficult to believe that the Jackson decision had no effect or whatsoever on previous guilty pleas. In preparation of our brief and our argument, we have tried to explore other possible theories in which Jackson would affect past convictions. Indeed, three different theories are presented by the three individuals in these cases argued yesterday and today. But the difficulty in selecting any of these theories is that the Jackson opinion, if it is to be applied to previous convictions at all gives no indication as to which defendants should and should not benefit from it. When the proper retrospective effect of the rule is thus so uncertain, we believe that the appropriate course is to decline to release serious offenders without it showing of the involuntariness of the guilty plea under established standards. For these reasons, we submit that the judgment of the Court of Appeals should be affirmed.
Warren E. Burger: Thank you. Does Mr. Adang have anymore time left? Thank you Mr. Adang. Thank you Mr. Connolly. The case is submitted.


Earl Warren: 105, William Thompson versus Coastal Oil Company. Mr. Ellis.
Charles A. Ellis: If the Court please. This is a case which involves primarily I think and respondent's counsel insist that it involves primarily a question of a seaman's release. It involves incidentally though along with that also some very important questions of liability and of injury. The background of the case is that its not a startlingly pornographic. The petitioner was a seaman on a coastal oil tanker, a Negro described by the District Court as an upstanding type of individual who neither smoked nor drank. There was (Inaudible) or so, a Puerto Rican -- I mean a Cuban Negro who was a messman and who was called by some of the crew a queer, by others a fruit and other denominations like that. And he was described as being exceedingly feminine and having one of the principles in the particular pornographic incident, as a girl friend and they gave him jewelry and used perfume and so forth. Well, the -- on the evening of the 12th of January, 1950 the petitioner was looking for someone to play cards with as was frequently the case on the boat. And he came to a room down on the boat occupied by three men and in there, in addition to the three men was this man Medina. And as he open -- as petitioner opened the door he found according to his testimony the Medina engaged simultaneously in homosexuality with two men and he was startled by it. He went and reported it to the Chief Steward who was his superior and the superior of Medina and to the union delegate on the boat. That was reported then to the captain the next morning according to the Chief Steward by the Chief Steward, some of the evidence indicates it was reported that night. But anyway the Chief Steward testifies that when it was reported where the Captain said that Medina had already reported it and that he would take care of it. That -- then one of the witnesses I think it's the union delegate Kaplan he testified that -- Medina said during the course of the forenoon there he was going to kill the petitioner, Thompson. Well, anyway that evening there was a meeting held in one of the rooms aboard ship to discuss apparently primarily a question of whether this incident would be reported to the coastguard and the coastguard requested to remove this man from the ship as an unfit member of the crew. That was attended by among others the petitioner and the three men allegedly involved in the pornographic incident. And the two men that were engaged with Medina in this act, one named Pittaway and other named (Inaudible), they didn't back up the petitioner's story at the hearing now on the boat, of course they were involved too, but they offered to quit the ship. The -- but by reason of it being petitioner's story only of what happened, why, the meeting wound up indeterminate. And before the end of the meeting some apparently about 10 to 15 minutes before the end of that meeting Medina left the room. It develops later then that what he did was he went and got according to the one part of the testimony, he stole the key according to some other testimony he got from the Steward the key to the galley and got a meat cleaver. As a matter of fact the meat cleaver that Thompson, the petitioner himself was trying to use in chopping meat, very heavy meat cleaver. And then as the rest of the men were coming out along side one of the passage ways on the boat Medina was there, described as being up against the wall, one of the men that passed before Thompson described it that way and then as Thompson came by he yelled out in a loud screech of voice, “I am going to kill you, you so and so," and clubbed him three times with all his might on the head with the meat cleaver. The testimony indicates that if as a manner of fact the petitioner hadn't had an extraordinarily abnormally think skull he would have been killed instantly. As it happened the blade cut through the two parts of the skull but didn't actually penetrate apparently the brain. It did though according to encephalograms and reports from two hospitals where encephalograms were taken produce encephalopathy due to trauma which is -- which means a disease of the brain. It's far greater than concussion. He was in the hospital for about something over 5 months, that is in the -- in hospitals. He was in several hospitals. He -- he was taken off the boat and put in one there in a Texas port where they landed and then sent to Houston, then sent to New Orleans and then sent to Stapleton and while he was at New Orleans he had to go back to Texas to attend the criminal trial of Medina. But on the train he was so disabled, he got sick and had to be taken off, taken to the hospital and treated there. And the trial postponed. Medina by the way was tried and convicted and sent to prison. Then after he had been in the hospital 5 or 6 months and he was discharged into a condition of out-patient then and he got $300 from the defendants to take a trip down to Arkansas where he originally came from apparently to take some salt baths, thought he would feel better and they had passed him the money and he went down there and then came back. And when he came back he went to see Mr. Mahoney the man who had advanced him the money. Incidentally he had correspondence with Mahoney. Mahoney had told him even while he -- before he arrived in New York I will be glad to see you and so forth. I mention that because respondent's counsel makes much of the fact that the man approached them to settle his case. And that he acted on his own, he insisted on acting on his own. The picture is one though of pitiful reliance as shown by the way by their own -- by the correspondence the letters that respondent themselves introduced in evidence pitiful reliance on Sealing & Jarvis, the agents for the defendant shipowner and on Mahoney. So when he got back he went to see Mahoney for discussion of settlement possible getting some money out of the case. And Mahoney had some discussion with him and then sent him to a man named Barron who was the agent for the insurance underwriter. And Mahoney told him according to petitioner's testimony that he didn't think they could pay more after -- by the way speaking to Barron, that they didn't think -- he didn't think they could pay him more than the $4000 because you're well. The -- he was sent however to Barron to have a discussion with him and he had to -- he had as a matter of fact -- this transpired before he went to Arkansas, this -- what I just mentioned. He had two conferences with Barron, was sent to Barron, Barron testifies that when he approached him he first asked for a $15,000 in settlement, but he thought he managed to talk him down to $6000 at that first conference. And then when he got back from Arkansas he paints it as a story where the petitioner was asking for $6000 and he told him then that he has already saved money if he took $4000 instead of hiring an attorney because most attorney's charge one-third of recovery and now the pitiful reliance on the one hand of his man and the abject submission off into overreaching is illustrated if by well, all through the negotiations, but also by that particular aspect of the case. Imagine a man being told that on the one hand he do better off, they're talking about a figure of $6000 now and that he'd do better off not to hire attorneys that would save attorney's fees and then whack it there because they are about a third and then whack the $6000 by the third, retain the $2000 even on that item for the defendants and gave him the $4000. He managed to convince this man that that was better for him. They also told him -- Barron told him quite specifically that in regard to the legal matter he had a very weak case. The representation there was that his right of recovery depended on proving that the shipowner company had notice of the dangerous character of Medina, when they shipped him on board. In other words the old common law rule of anyone's liability for his own negligence which was long before the Jones Act, long before any of the other modern employee's liability legislation. In fact you can find a case to that effect way back in I think about volume one or two reprint, that if a man is negligent in hiring somebody that is absolutely a danger to other people he was liable even then. But they were talking as of a time when the Jones Act was in existence for one thing and that confers a cause of action for negligence and this Court has held in two cases where it's true the one who committed the assault was somewhat a superior, one was a foremen, the stevedore and the other was boatswain on a boat. They held that where the assault was committed by them that commission of that assault was negligence under the Jones Act. The Court has never had before it denied certiorari in a case that would have presented it perhaps in the Jones case, Jones against Lykes Brothers some time ago has never had before it the application that two men of equal disposition, equal status on the boat. But the rationality of the Jones decision seems to be -- Judge Learned Hand's views in fact comparing it with some of the others seems to be that a mere fight doesn't show such a malicious disposition of a man on board as to create on the one hand unseaworthiness or to constitute negligence. Whereas the use of a meat cleaver or something like that such as was involved in the Boudoin case before Your Honor's last term, by the way there the man if I recall correctly was hit one time. But that was -- no, that wasn't a meat cleaver case that was a case of the brandy bottle. But it cited the Keen case that Judge Learned Hand had decided in the Second Circuit that did involve a meat cleaver assault. And there the meat cleaver was used for one blow, here the man was struck three times. In both those cases, both the Keen case and the Boudoin case by the way the assaulting man was drunk at the time and yet the ground of holding unseaworthiness in the case was that the man was not fit to be a member of the crew. He was -- the very happening of the assault showed conclusively that the ship was unseaworthy. Now in this case the man was perfectly sober, Medina. He was simply this kind of character that weird sort of creature that shouldn't have been on the boat in the first place and whose act in assaulting this man with a meat cleaver certainly show that it's -- if there is a Jones Act liability there is unseaworthiness liability along the line of the Boudoin case and the Keen case.
Sherman Minton: Is this (Voice Overlap) --
Charles A. Ellis: I think, I however that --
Sherman Minton: Is there a question of seaworthiness before us in this case?
Charles A. Ellis: Only in -- only in this connection, the -- insofar as is involved the representations made by Barron in obtaining the release. Now, in fact --
Speaker: What the law was.
Charles A. Ellis: Yes, what the law was. Barron -- Barron represented that to him, one of his representations was that in order to recover he would have to prove that the defendant had notice of the viciousness of this man. Now that point as a matter of fact was involved in Boudoin, that thought was involved in Keen and that points -- as a matter of fact so far as unseaworthy, where the law is concerned is always been held, go back as to the (Inaudible) for instance. There, it was a case where there was one boat in the forepeak part of a ship which proves to be defective. It couldn't possibly have been discovered by any investigation whatever, but the boat was built so as to let water in to settle the boat off, settle the ship off and that water was let in and due to the fact that there had been defective head on one little boat there and water seeped in and destroyed some cargo, some rather valuable tropical type cargo, the boat was unseaworthy. So the law has always been to the effect that unseaworthiness had absolutely nothing to do with negligence of the owner.
Stanley Reed: But the application of unseaworthiness to the crew member is of rather restarts the business, in the Boudoin case, that came after this advice was given to him by the claim agent?
Charles A. Ellis: The specific application in a cleaver case, yes. But the -- the doctrine no, in fact we cite in our brief several cases involving unseaworthiness by reason of members of the crew antedating this incident. For --
Stanley Reed: But prior -- prior to that time, didn't you have to -- was it necessary to prove that the lawyer knew the --
Charles A. Ellis: There were -- there were dicta. There were rulings. There were rulings somewhat to that effect, yes. But to the --
Stanley Reed: I was -- I was thinking of it in terms of whether the person who gave him this advice, was it the claim agent?
Charles A. Ellis: Yes.
Stanley Reed: Was he speaking of the law as he understood it at that time.
Charles A. Ellis: That's right. This isn't -- now bear in mind Your Honor, this isn't a fraud case necessarily, in fact perhaps I haven't -- I think I have missed pointing out one very important aspect of this case, there are two lines of decisions in this Court, one is concerning releases. One is represented by Garret against Moore-McCormack case which is the seamen's case. The other is represented by Callen against Pennsylvania Railroad Co. and a number of cases that have followed it which are federal employees liability cases and, and relate also to other types of individuals other than seamen or other than beneficiaries of a trust. Now, seamen -- it's been held in Garrett against Moore-McCormack that the burden of proof to sustain a seaman's release is on the defendant. The defendant must prove that the release was obtained fairly that the man had full understanding of his rights and that he was not overreached in anyway and fair consideration pay. Now under Callen, under the Callen case the court divided there on that very point on the rest of the case though, they -- there seemed to have been no division. There were four justices who thought that perhaps the same rule that applied to seamen should be applied out of liberality to these other railroad employees. But the -- the majority held that no, they were different and that the burden of proof was on them. Now, we -- we have a case here where we start out with the burden of proof on the defendant to prove that this man had full understanding of his rights. Now how could he possibly have full understanding of his rights since his rights are rights which arise out of unseaworthiness and out of negligence? We think also there's a case for Jones Act negligence here due to the fact that there was such a breach of duty here on the part of this assault that that constituted negligence within the Jones Act concept. But how could that possibility be a full understanding of his legal rights on the one hand when he is told that his rights of getting anything passed $200 maintenance and cure depend on proving notice to the owner that this man is a vicious character and when he is told as regards his disability that he is well. As a matter of fact the man is disabled now. His head was bandaged on the very day of the trial four years later when he'd been over at the hospital and shortly before that had to and had to have a drainage taken from his head. So the man -- I don't think there is any question about the fact that the man was completely overreached. But I don't think that's necessarily the point because the -- we meet right off the point that he wasn't given a full explanation of his rights and he wasn't given fair treatment. Now, incidentally on that -- my time is getting short, there is one feature I want to call the Honors' attention. If you look at the fact of the record, I think as a matter of fact, back of the major part of the record there at page 347A, those are the text of the release. I think this release as a matter of fact is void on its face because it recites here --
Earl Warren: Where is that found Mr. Ellis?
Charles A. Ellis: 347A of this -- it's the Circuit Court record. Your Honors granted an order allowing this appeal without turning up the record here, its right at the back Your Honor. About -- yes, it's the last thing in this -- in the record, that last thing that is in defendant part. Now you'll notice it starts out, it's headed up the top release of all rights and recovery. By the way a lot of this is red print, some of it is black print and all caps and so forth. And then it says by signing this release you give up every rights you have. And William Thompson, age 56 so forth in an exchange for the sum of $4000 less the sum of $550 which has been previously paid to me. Now by the way let me interrupt there just one moment there is no word of evidence in the record to support that he got $550, the utmost I can find is $450, that -- including $100 -- the $300 that was advanced to him to go to Arkansas, $100 advanced to him to make the trip to attend the trial of Medina, and $50 that was advanced to him at his specific request. Then this goes on, it says, which I received do hereby release and forever discharge Coastal Company and the several vessels in particular Rosina Marron, the owners and so forth from our own account of injuries or illnesses suffered by me as follows. The injuries, illness alleged to have been sustained by me and/or illnesses alleged to have been incurred and contracted by me while I was in the service of the said steamship Rosina Marron on or about January 30, 1950 and or at any time or times. And in addition to that I release them from each and every right or claim which I now have or may here have to have because of any matter or thing which happened before signing this paper. It being my intention -- notice the last line there, even as respects, injuries, illnesses rights and claims not mentioned herein or not known to me. Now, how can a release covering rights not known to the seamen on his face stating to be rights not known to the seamen be nevertheless a release of rights which the seaman fully understands. And if -- if there is a release here of rights not known to the seaman how can any part of that $4000 consideration be attributed anymore to the release of rights that were known if there were any, actually known and then to the rights that aren't known. Then it goes on down before and below, read the following six numbered statements carefully. I know this paper is much more than we see it as release. I am giving up every right I have, now why have a right if the man is supposed to have a full understanding of his rights and it's supposed to deal with his tort. Then it goes on in making up my mind to this release, I am using my own judgment without regard to anything that has been told to me by anybody. He's entitled to rely on the representations made to him by these parties that seek the release. That I know that in signing this release I am among other things now settling in for -- for all injuries, illnesses and disabilities I have had already, which I have now or which I may have in the future. Either because of -- either because of the particular occurrence mentioned above or because of any other occurrence in the past or because of both, even though I do not know that I have had already, have not or may have, have now or I may in the future such injuries, illnesses or disabilities and even though they are mentioned particularly in this release. And I do all this regardless of what anyone may have told me about my injuries, illnesses or disabilities or about anything else. Then it goes on regardless of what anyone may have told me I release also -- I realize also that my injuries may be worse than they seem to be. I am now settling for that also. Down below or rather a neat feature you'll notice (a), answer to either where they asked him what -- what are you doing and they tell him what to sign. We submit to Your Honor that the release is invalid that there was liability in the Circuit Courts should be reversed.
Michael E. Hanrahan: If Your Honors please.
Earl Warren: Mr. Hanrahan.
Michael E. Hanrahan: I'd like to preface my remarks with this. I think Your Honors might know that in the eastern and southern districts particularly in around New York City the greater part of the litigation that was on there, seamen claims but probably 10 times or perhaps a dozen times that many are claims that are settled directly between seamen and shipowner. And these shipowners are well versed in this Court's ruling in Garrett against Moore-McCormack. They know that the seaman has to be fairly treated so that the -- that the settlement will stand up. And I think that if the release as we present the facts in my brief here, for the thorough reading of the record set aside, there's going to be no alternative to shipowners but to cancel their entire adjusting departments some -- and ask a court approval on a every settlement. I mean these are the facts that as they stack up, the seaman went to four marine hospitals on the State's public healthcare hospitals following the assault. Galveston, Corpus Christi, New Orleans and finally the hospital at Stapleton, Staten Island and he was discharged there on April 28th, 1950.
Felix Frankfurter: Does that (Inaudible) should have done it earlier. When you say -- when you say they'll ask the court approval, do you mean they will have to litigate, there is no laws by which they can -- is there any informal way as to --
Michael E. Hanrahan: No, well I --
Felix Frankfurter: Except that they will -- they will take away and sue, is that it? I just want to --
Michael E. Hanrahan: I've often thought Your Honor that there is a possibility of a pretrial hearing but still that would clutter the judge's work.
Felix Frankfurter: But that would -- you mean, you're -- assume that to be solved, there is no other way --
Michael E. Hanrahan: Yes.
Felix Frankfurter: -- by which a judge, a federal judge begins this --
Michael E. Hanrahan: No.
Felix Frankfurter: All right. Now, one thing I can understand, no.
Earl Warren: Isn't there a middle ground Mr. Hanrahan? Couldn't -- couldn't it be suggested to a man that he'd be represented by independent counsel --
Michael E. Hanrahan: But what -- that -- I think one of the most important factors here is while this fellow was in the Marine hospital and before he signed a release, he were -- there were 12 to 16 lawyers approached him in the marine hospitals and he turned all those down. Now, there's seven or eight letters --
Earl Warren: Would you recommend to him that he take those lawyers -- any of those lawyers who solicited him?
Michael E. Hanrahan: What I as an attorney for the Steamship company?
Earl Warren: Yes.
Michael E. Hanrahan: Of course not, no. Are we supposed to -- suppose to go to that far?
Earl Warren: Well you're -- you seem to take some comfort out of the fact that he was solicited by 12 to 16 lawyers and he didn't take any of them.
Michael E. Hanrahan: Well, the seaman must have --
Earl Warren: And I asked you of that (Voice Overlap) --
Michael E. Hanrahan: I -- I think you must take every fact into consideration, the fact that he had the -- the Garrett rule says that he must have adequate legal and medical assistance. He must have, know what he is doing. There must be no overreaching and there was none of that here because he came to the company, he -- he started all the negotiations, he wrote the letters and he went to Sealing & Jarvis first were merely agents for the Coastal Oil Company. And there, his -- nobody talked of setting the case first. He just thought he'd be better off if he went down to Hot Springs, Arkansas. And they asked him how much money he wanted and he said $300 and that was given to him. And now --
Earl Warren: Without any thought of settlement, didn't think (Voice Overlap) --
Michael E. Hanrahan: No, there was no talk of settlement at that time.
Earl Warren: That was just a gift to him.
Michael E. Hanrahan: No. It was understood -- well, whether -- I doubt it was understood by him but if -- the company always deducts those advances from the final settlement. But then he came back from Hot Springs and he went over to this Barron, of the shipowner's claims bureau, that -- that's a group where they have several claim agents that represent several steamship companies. They don't maintain their own --
Felix Frankfurter: Does this (Voice Overlap) -- does the seaman union have a legal department?
Michael E. Hanrahan: Yes, they do. They don't have a legal department, they have a fellow on the -- what was it called, sort of a counsel, but he's not licensed to practiced law. But they have a list of approved seamen's attorneys.
Felix Frankfurter: If I went through the annual report of the Legal Aid Bureau, they have (Inaudible) bureaus, seamen, clients --
Michael E. Hanrahan: Yes, yes.
Felix Frankfurter: They take many of these cases.
Michael E. Hanrahan: Yes, there's a -- but --
Felix Frankfurter: But the companies -- the companies can't suggest a lawyer that will be very bad.
Michael E. Hanrahan: Well, it -- and if they just --
Felix Frankfurter: (Inaudible)
Michael E. Hanrahan: Yes.
Felix Frankfurter: I just want to know whether there is some standing applicable to the Chief Justice's question, is there (Voice Overlap) --
Michael E. Hanrahan: Your Honor --
Felix Frankfurter: -- is there a standing --
Michael E. Hanrahan: I -- I'm off --
Felix Frankfurter: -- legal advice to which a seaman naturally (Inaudible) in New York Harbor or in the Court of New York?
Michael E. Hanrahan: Just to -- to answer your question I'll get off the main theme of my argument, but today a seaman gets booklets put on the ship telling them what is right, sir. And those booklets summarize the maritime rule with respect seaman. He gets a newspaper every week and then in the newspaper, there are published the large verdicts for, you know, for Jones Act verdicts. He has this counsel that sits right in the union hall who refers a man to, well. I practice in New York City and I imagine there's 20 to 25 attorneys of law firms included in that number who practice exclusively seamen's claims. And -- I may -- we don't know, but I presume that this was a seamen's lawyer who contacted the man through these many hospitals. On medical advice there's no question that he had adequate medical advice because he had the best and the most impartial United States Public Health Service. I -- there's one other thing I wanted to point out to the Court here the fact that all these facts have been gone over by the Circuit Court below. I just wanted to bring to your attention that at first when we argued the case it was unanimously upheld that the release was valid. Then there was a rehearing on papers in the rest, and it was seven to five, five-to-two of seven judges. But there is nothing but fairness all the way through here. That's what I am trying to bring to Your Honor's attention that there was no overreaching at all. And above all the amount given to this man was -- I mention cases in my brief showing where that shock, the conscience of the court, they offer $90 or $125 and there was no question the Court set aside such a release. Here, of course, the man at the time he signed the release if there was no liability would have been entitled to no more than maintenance and cure and that was almost a nominal figure because all the time he had been in the hospitals. If he was entitled to general damages under liability he'd get about six months wages, and that'd bring about 1400, he was getting 2500 -- $250 a week. I think that's about $1400 plus the $250 maintenance. He had no hospital expenses because that was all take -- all free under the Public Health Service. Now, you don't settle a case on jury verdicts four years later or on a judge's decision four years later. Now, on the liability feature this man at the time he -- of the release --
Stanley Reed: Before you -- before you get off as to what was paid him, I understood you to say that his hospital bills were met by -- was it the sailors or by the company.
Michael E. Hanrahan: Well, the -- all sailors get treat --
Speaker: (Voice Overlap)
Michael E. Hanrahan: They get free treatment at the United States marine hospitals.
Stanley Reed: And that's paid by the United States Government?
Michael E. Hanrahan: Yes. That's never included in any settlement because --
Stanley Reed: Maintenance and cure, you don't -- your company doesn't have to pay for maintenance and cure.
Michael E. Hanrahan: Well, if under circumstance Your Honor a seamen can't get to a marine hospital, goes into a private hospital then that bill is paid by the shipowner, but what these fellows do if they're -- is so disabled that they can't get off that ship themselves, I mean, if the ambulance is right there to meet the ship and they go right to the Marine Hospital. Otherwise the discharge slip qualifies him to enter the Marine Hospital where they have the slip regular form from the master.
Stanley Reed: At any rate, did this case, the shipowner paid nothing on his hospital bills?
Michael E. Hanrahan: That -- that's right, that's right. But I think that the big thing that the release was overruled in the -- or held invalid by the District Court was the fact that the man made such an impression and I brought it down in cross examination, it seems out of order to bring up such a point if you have evidence to that -- to the Supreme Court. But I did make that, I tried the case myself in the District Court and I told about the bandage on the head. I made the fellow admit that he had only had that bandage on the head for three days before the trial. Now, as the damages again, he never went to the marine hospital for treatment of his head. I bring that out in my brief and beginning at -- I marked it, beginning at 328 of this brief he was never admitted in the four years following the execution of the release --
Earl Warren: You mean, this appendix --
Michael E. Hanrahan: 328. In other words he was never admitted to the marine hospital, to any marine hospital for a treatment relating to his head following the execution of the release. For instance on 320 (a) we've got a long record and it's -- if you look over on 320 (a) -- 321 (a) you see the release duodenal ulcer and urethritis. Then over in 322, the one that -- actually, there is some history of venereal trouble there. I want to call -- hold the Court's time up on these, but then there was also a finding that he didn't work at the rating that he had worked before. As a matter of fact I show in the brief and in the record to that he had worked at ratings even higher than that he had before. He was second cook on this particular voyage. And many times in the four years before the -- from the time of the execution of the release and the trial of this action, had worked as chief cook, or first cook and as I said the bandage on the head was a part of the dramatic effects you might say of trying the case. I have --
Earl Warren: You didn't try it before a jury, did you?
Michael E. Hanrahan: No. That's an important thing that I want to bring out too that when -- when the seamen meets with the -- with the claim agent and they sit down and by the way I quoted the actual conversations between Barron and the claimant here in my brief so that you didn't have to go thumbing through the -- this record. Thompson couldn't tell whether a court or a jury four years later was going to decide in his favor and he couldn't decide whether they were going to get $4000 or more. He couldn't know that two years later Judge Hand was going to decide the Keen case which was summed that a man of vicious propensities rendered a ship unseaworthy. As a matter of fact he couldn't know that the Fifth Circuit was going to decide just the opposite until that court came up to this Court where they held that the ship wasn't unseaworthy where the man used a bottle. As a matter of fact that the -- if this case was go to before a jury, now you can't tell, you can't tell what a jury is going to do. They might like Thompson and they -- or they might like Medina and he might end with a court. So, in summary Your Honors I say that we performed our duty under the Garrett rule. The man had a chance. He -- he says in his one part of his brief that there were lawyers who told him that they could get him more than $16, but he didn't want lawyers, he wanted to settle the case himself. He had all available medical advice. He knew all the way through just what his condition was and never after except just before the trial was he treated for this condition of the head. There was absolutely no overreaching. He was the one who started the negotiations with the court -- with the claim agent. And I think --
Stanley Reed: How -- how long before the settlement -- how long before the settlement had he been in the hospital examined?
Michael E. Hanrahan: They obligated -- the release --
Stanley Reed: Well, the approximate -- approximate --
Michael E. Hanrahan: April 28th or about a month I'd say.
Stanley Reed: Did he have a report from the hospital at the time he (Voice Overlap) --
Michael E. Hanrahan: June -- April 28th to June 2nd, no more than five weeks.
Stanley Reed: Did he have the hospital report when he made the settlement?
Michael E. Hanrahan: Yes, sir.
Stanley Reed: He had it and all --
Michael E. Hanrahan: There's another important thing judge. The hospital report upon discharge said prognosis, good, recommended one month's convalescent. Barron, the claim agent had as a part of the regular routine called in, arranged for a physical examination via Dr. Farr. Farr's report was more conserved or we might say worse than the marine hospital. He didn't say prognosis, but he said this man is going to have a 10% permanent disability and Barron testified that he read that to the man.
Earl Warren: Did the man have the confidence -- would you think to understand a medical report of that kind?
Michael E. Hanrahan: He'd been going to sea for four years. He had used lawyers before. He had executed releases before. As a matter of fact, the District Court Judge said, in my brief I quote it on page 20, the Court - I am going to assume in the absence of further proof that the man knew he was signing a release when he signed that paper. He knew what a release was. There must be -- there must come a point when a seamen's release is valid. It's good for his point of view because he can get quick settlement, he can go on his way, it's good from the company point of view. And that won't clutter up that -- the southern and eastern districts, and the districts out in California with these seamen's cases.