Warren E. Burger: We'll hear arguments next in Michigan against Doran. Mr. Derengoski, I think you can proceed whenever you're ready now.
Robert A. Derengoski: Chief Justice Burger, members of the Court, I first address the question in this cause of the motion for dismissal on the grounds of mootness, which has been filed by counsel for the respondent herein. Now, this is an extradition case. Exactly one year ago, today the Michigan Supreme Court handed down its decision, setting aside Mr. Doran's incarceration and turning him free on the basis that the extradition papers, the warrant and complaint from Arizona did not in their face show probable cause and that it was an argument in question and objection which could be raised in a habeas corpus proceeding in the asylum State of Michigan. Now, the motion for mootness indicates that counsel has searched diligently for Mr. Doran and has been unable to find him and that therefore, any action by this Court could not be effectively implemented. I say to this Court in opposition to the motion for dismissal on the basis of mootness that we, the State of Michigan, probably somewhat greater resources have attempted not to locate Mr. Doran. There's no reason for it. After all, we couldn't do a thing to him. It's going to be only harassment if we did go out and look for him, I presume. He is free by a mandate of the Michigan Supreme Court. Now, admittedly, at the moment we do not know where he is. However, I would hate to say that precedent should be that an appeal to this Court can be thwarted. Indeed, a party may prevail by merely not showing up, I would say to Your Honors that this is not the concept which would evoke an order of this Court dismissing on the count of mootness, this cause. Now, except for this order of the Michigan Supreme Court, which we herein seek to set aside, there is a viable Michigan governor's warrant for the arrest of this man. And once if this Court does set aside the Michigan decree, it will be pursued and pursued diligently. Otherwise, the very thing that we are full fearful of, as a result of the Michigan Supreme Court's decision would indeed come true. Namely, just keep yourself absent. Step over the boundaries into another state and you're home free. I have a little doubt Michigan being the home of Mr. Doran and his family or remnants there, are still there that in all likelihood he is in Michigan. Why shouldn't he be?
Warren E. Burger: Would it make any difference whether he is in Michigan or in Cuba for the purposes of this case?
Robert A. Derengoski: That's right sir.
Harry A. Blackmun: Well, it will make a difference if you are in Arizona, would it not?
Robert A. Derengoski: Yes sir.
Warren E. Burger: That's why I picked Cuba.
Robert A. Derengoski: Well sir, at the moment, I would suggest to Mr. Doran, Michigan, after all he's got -- he's safe there. He's got the mandate of the Michigan Supreme Court keeping him free. Now, the matter -- I'll proceed to the merits of the cause sir. We do not take exception to the claim and the assertion that the provisors of the Fourth Amendment, namely probable cause for a warrant are applicable to cases of extradition. Our big thrust is --
Harry A. Blackmun: You do concede this.
Robert A. Derengoski: Yes sir we do.
Harry A. Blackmun: This simplifies the case.
Robert A. Derengoski: Yes sir. I do -- we say that these are matters, which are to be examined in the courts of the demanding state. The concept of probable cause, I suggest to the Court can be somewhat gossamer. What is maybe probable cause in the mind of the Governor and the Judge in Arizona may fall shy of probable cause in the minds of the Michigan courts. Obviously, it did. On the other hand, this case went through four Michigan courts before they found a Court which said, this does not show probable cause within the concept that we have. And therefore, it must fail, it can be raised in an ancillary proceeding in habeas here, and we will discharge this man.
Byron R. White: Would you say that the asylum state may at least demand that the demanding state when it presents its papers to the Governor of the asylum state, must the demanding state at least show that probable cause has been determined in that state before a warrant was issued?
Robert A. Derengoski: Yes sir. Yes sir, and we believe that that has been done here.
Byron R. White: And do you think -- do you think the asylum state may demand not only that the demanding state demonstrate that probable cause has been judicially determined in the demanding state, but that the demanding state demonstrate the basis for that determination? I know you've said that it cannot be re-determined in the asylum state?
Robert A. Derengoski: Yes sir. I think that what we have here is Michigan's examination of what Arizona found to be probable cause.
Byron R. White: Re-examination?
Robert A. Derengoski: Yes sir.
William H. Rehnquist: Why do you conceive that with respect with probable cause? You're dealing with a provision of the Constitution that was adapted in 1787 about the interstate rendition of fugitives, and you're dealing with a Fourth Amendment provision that was held applicable to the states only in 1961?
Robert A. Derengoski: Yes sir. I -- we, of course, rely nearly completely and wholly on Article I. It is so clear.
William H. Rehnquist: Article I of what?
Robert A. Derengoski: Of the United States Constitution, which says that upon demand of the Governor of one state, the fugitive shall be rendered up to the demanding state.
William H. Rehnquist: I thought that was Article IV, Section 2?
Robert A. Derengoski: I -- I stand corrected sir, Article IV, Section 2.
William H. Rehnquist: Well if you rely on that why do you get to the issue of probable cause under --
Byron R. White: Why did -- why did you concede just what you did that the demandings that the asylum state may at least demand that the -- a showing that the demanding state passed on probable cause?
Robert A. Derengoski: Well, I did not know that I made that concession sir. If I did I certainly retract it.
Warren E. Burger: Well, were you undertaking to tell us that all the demanding state need to show us a prima facie case of probable --
Robert A. Derengoski: Yes sir.
Warren E. Burger: -- cause by its papers?
Robert A. Derengoski: The big complaint, as I get it here, is that the affidavit in complaint, whereby in pursuant to which the warrant of arrest was issued merely stated the crime in the “conclusory” language of the statute. But it showed who, what, where, when --
Thurgood Marshall: Mr. Attorney General, doesn't a warrant show that Arizona says that this man stole a car in Arizona on the same day he was under arrest in Michigan?
Robert A. Derengoski: Yes sir. The original --
Thurgood Marshall: Is that possible?
Robert A. Derengoski: No sir. It was sent back and returned. It was a stenographic error in the original warrant. And it was corrected to show December 3rd, 1975, instead of the same date in which he was picked up in Michigan.
Thurgood Marshall: But when was the warrant issued? How long after the crime?
Robert A. Derengoski: About -- let's see, we picked him up sir on December 18th, 1975.
Thurgood Marshall: I'm talking about the Arizona --
Robert A. Derengoski: Oh, the Arizona, I think was issued in the middle of January sir.
Thurgood Marshall: And it wasn't issued until after he was picked up in Michigan?
Robert A. Derengoski: Yes sir.
Thurgood Marshall: And after Michigan notified Arizona, that was when it was issued?
Robert A. Derengoski: Yes sir.
Thurgood Marshall: Real collaboration.
Robert A. Derengoski: Yes sir.
Harry A. Blackmun: When did you pick him up?
Robert A. Derengoski: We picked him up December 18th, 1975 sir.
Harry A. Blackmun: And when did the Arizona warrant issue?
Robert A. Derengoski: Arizona issued 01-07-76, less than a month later the Arizona warrant issued sir.
Harry A. Blackmun: Well then, it may have been said that the Arizona authorities were relying on the Michigan arrest for a probable cause?
Robert A. Derengoski: No sir. There was a complaint made by the prosecutor in the Arizona Court.
Harry A. Blackmun: When?
Robert A. Derengoski: It was sometime between December 18th and --
Harry A. Blackmun: Was it -- was it before or after the Michigan arrest?
Robert A. Derengoski: It was after sir.
Thurgood Marshall: And it was after Michigan notified Arizona?
Robert A. Derengoski: Yes sir.
Thurgood Marshall: And so far the records on Arizona didn't know anything about it.
Robert A. Derengoski: Well, that's right sir. They didn't know where this man was, until Michigan said we have him.
Thurgood Marshall: It doesn't say that, they could have issued the warrant without knowing where he was, couldn't they?
Robert A. Derengoski: I suppose but to -- what avail the --
Thurgood Marshall: Don't they usually do that?
Robert A. Derengoski: Not to my knowledge, no sir.
Thurgood Marshall: Well, have you ever heard of -- can you give me any case where this happened, where a warrant was issued after the man was arrested in another state?
Robert A. Derengoski: Most of the extraditions that I have dealt with did that, yes sir. After the asylum state advised the ultimate demanding state that we have one of your people.
Thurgood Marshall: That's when they issued the warrant.
Robert A. Derengoski: Yes sir.
Thurgood Marshall: For arrest?
Robert A. Derengoski: Yes sir.
Potter Stewart: Often they don't know who he is.
Robert A. Derengoski: That's right, yes sir.
Potter Stewart: Until he's apprehended in the asylum state.
Robert A. Derengoski: That's right. And how this happened sir was he was driving this allegedly stolen vehicle in Bay City, Michigan, and it was making too much noise as I understand. There was a complaint, and that the officers came and they check through lien and found that this was a stolen vehicle in Arizona. And then he was charged in Michigan with receiving and concealing stolen property, which charge is automatically dismissed upon the arrival of the Arizona requisition.
Thurgood Marshall: And then you kept him in jail for two years?
Robert A. Derengoski: Oh yes sir, oh that would be a heinous --
Thurgood Marshall: Well, what is the amount of time you get for stealing the vehicle in Arizona?
Robert A. Derengoski: Well, I suppose it's less than five years sir.
Thurgood Marshall: Could be two, couldn't it?
Robert A. Derengoski: It could, yes sir. But you got to recall sir that during the time that he was incarcerated in Bay City, he was attempting these habeas actions through the Michigan courts. And you know sir, it takes very little imagination to know why this man would rather molder in a Michigan jail than assert himself to his constitutional right to a speedy trial in Arizona.
Thurgood Marshall: He just want you to abide by the law, that's all.
Robert A. Derengoski: Now, historically --
Potter Stewart: Well, you say it takes further little imagination but I don't even have that minimum amount of imagination (Voice Overlap).
Robert A. Derengoski: Obviously, he didn't want to run the risk of conviction and sentence in Arizona.
Potter Stewart: Well, he couldn't be any worse off than being in prison, could he?
Robert A. Derengoski: Yes sir, I can understand that.
Potter Stewart: Well then you say it takes further little imagination to see (Voice Overlap) exercise why he didn't (Voice Overlap)?
Robert A. Derengoski: Obviously, he believed the risk of conviction and sentence in Arizona was so very probable that he'd rather sit in the Michigan jail.
Potter Stewart: Well, that's a certainty when you're in jail, not a probability.
Robert A. Derengoski: Yes sir and --
Warren E. Burger: He was there then pending of the possession charged in the State of Michigan, was he not?
Robert A. Derengoski: Yes sir.
Potter Stewart: Well, when was that charge dismissed?
Robert A. Derengoski: It was dismissed in January of 1976, when the Arizona requisition arrived and the Governor of Michigan issued his warrant of arrest pursuant to the Arizona --
Potter Stewart: So it's probably dismissed as soon as the people for Arizona arrived, isn't that right?
Robert A. Derengoski: Yes sir.
Potter Stewart: Or the requisition arrived.
Thurgood Marshall: So, the two years was after that?
Robert A. Derengoski: Yes sir.
William H. Rehnquist: You're suggesting he was following Hamlet's advised that we would rather bear those evils we have than flee to others that we know not of?
Robert A. Derengoski: Perhaps sir, perhaps. The --
Harry A. Blackmun: Or are you suggesting the Michigan jails are warmer in Arizona? I share with Mr. Justice Stewart's confusion that (Voice Overlap). Or are you suggesting that it doesn't take much imagination to know why.
Robert A. Derengoski: Obviously, he did not want the Arizona conviction and probable sentence that would follow.
John Paul Stevens: And he correctly anticipated that if he stuck it out in the Michigan courts, he might ultimately get free, which he did.
Robert A. Derengoski: Oh yes sir, it took four courts for the man (Voice Overlap). Yes sir. The --
Potter Stewart: I'm not sure he is.
Thurgood Marshall: Have you ever think that there's a good possibility that this man is innocent?
Robert A. Derengoski: Well sir, yes, but --
Thurgood Marshall: I can't get -- all your assumption is that he's going to be convicted in Arizona.
Robert A. Derengoski: Oh, no sir. I would never subscribe to that --
Thurgood Marshall: Well, you kept -- didn't you just say that the reason he did it was because if he went to Arizona he'd be convicted? Didn't you say that?
Robert A. Derengoski: He was obviously afraid of that, yes sir.
Thurgood Marshall: Well then, you don't assume that the man is innocent.
Robert A. Derengoski: I would -- I will always assume, evidently he didn't. The question of whether or historically and under the rulings of this Court, in the asylum state, you questioned or may question the fugitivity, the identity of the accuse, in this case we had his picture and whether what he did was a crime under the laws of the demanding state, and whether he indeed was in the demanding state at the time of the alleged crime.
Warren E. Burger: And you said that's the end of the inquiry by the asylum state?
Robert A. Derengoski: Yes sir. Just to make sure that this man is charged that he was in the demanding state and that you have the right to the person. Now, the Michigan Supreme Court went off very heavily on the District Circuit decision by Judge Kelly Wright in Kirkland. And they also -- I's like to point out to the Court that Justice Kelly Wright, with all differs him, much of his opinion was based on compassion. And I say that is a proper ingredient in the administration of our laws that should not be so weighted as to frustrate a constitutional provision. Now, Justice or Judge Wright mentioned, you know, hauling this people away from their home to a foreign jurisdiction and all the problems that could come in that regard. Well, actually in most of these cases, these people are merely being sent back home.And in this particular case, we are not sending these fugitives off to some primitive state, some nether region. We are sending them off to a sister sovereign state of this union, whereby all of the constitutional rights will be given to him.
William H. Rehnquist: Well, the Governor of Michigan can exercise compassion under Kentucky against Dennison if he wants to, can he?
Robert A. Derengoski: Oh yes sir. I seriously consider have problems with this -- I'm not sure the Kentucky versus Dennison says sir.
William H. Rehnquist: Well, it says the duty can't be enforced by mandamus.
Robert A. Derengoski: Oh that's right sir. And I seriously question the propriety of these governors in the exercise of executive clemency doing by indirection and frustrating Article IV --
Warren E. Burger: We don't have that here though.
Robert A. Derengoski: No sir.
Warren E. Burger: It wasn't the governor who did this.
Robert A. Derengoski: No sir, it was not. It's the Michigan Supreme Court and so, I say to the Court that all of these protections, these arguments should be raised in the demanding state where the evidence is there, where the witnesses are there, unless we can have that as a law of this land, you could have 48 states which become havens for every bail bond jumper in the country.
Warren E. Burger: Thank you Mr. Solicitor General.
Robert A. Derengoski: Yes sir.
Thurgood Marshall: It's now fifty.
Robert A. Derengoski: Fifty.
Warren E. Burger: You may continue counsel.
Robert A. Derengoski: Chief Justice, may I please the Court. I'd like to reserve the remainder of my time for any rebuttal that may be necessary.
Warren E. Burger: Very well. Ms.Cummins.
Kathleen M.Cummins: Mr. Chief Justice and may it please the Court. First of all, I will address myself to the memorandum suggesting mootness which we filed. Now, by no means intended that this memorandum be taken as my assertion that this case was definitely moot. It was filed because I felt that Mr. Doran's continuing absence compelled me to inform the Court of a set of facts that might well render the case moot.
Warren E. Burger: That was entirely appropriate Ms.Cummins for you to do so.
Kathleen M.Cummins: I do have one additional fact to relate to the Court, which came to light after the memorandum was filed, however. Our investigator had contacted a Deputy Sheriff in Bay County who knew Mr. Doran and had asked him to look for Mr. Doran. Shortly after we received the Attorney General's response to our memorandum, this deputy informed us that he had seen Mr. Doran in a local hotel about two months before last week. However, he was unable to give us any further information in our efforts to check out this lead didn't reveal any further information.
Potter Stewart: That was a local hotel in the State of Michigan?
Kathleen M.Cummins: In Bay City. Now, we argued before the Michigan Supreme Court and they took the position that, where a request for rendition is based on a mere charge such as here, an untried charge, and where the request is supported solely by a complaint and warrant and or additional supporting affidavits that such charging documents must facially reflect probable cause. Secondly --
Thurgood Marshall: Ms.Cummins, would you -- is there any explanation in the arrest, in the records as to the original Michigan arrest?
Kathleen M.Cummins: Well, the record is somewhat murky as to the details surrounding Mr. Doran's --
Thurgood Marshall: Let me again, what was he arrested for?
Kathleen M.Cummins: He was arrested on a charge of possession of a stolen vehicle in Bay City on December 18th.
Thurgood Marshall: This is the same vehicle?
Kathleen M.Cummins: Yes.
Thurgood Marshall: Well, how does he -- how do you know it's the same vehicle?
Kathleen M.Cummins: It was the vehicle in which he had driven from Arizona. There's -- there's no dispute about that.
Thurgood Marshall: You mean he was arrested because he was driving a car without a state license?
Kathleen M.Cummins: Apparently a check, and I'm not sure of this and the record does not really clear up this question. Apparently a check was run on the plates and this check revealed that it was a stolen vehicle.
Thurgood Marshall: But that was after he was arrested.
Kathleen M.Cummins: Yes, Your Honor.
Thurgood Marshall: If you've backed up a little I want to know when he was arrested, they said you are arrested for what?
Kathleen M.Cummins: I don't believe that was ever made certain Your Honor. He was --
Thurgood Marshall: We don't know, do we?
Kathleen M.Cummins: No. He was shortly thereafter charged with receiving and concealing a stolen vehicle. However, after the Arizona warrant and complaint were issued and a fugitive warrant was issued in Michigan to hold Mr. Doran for extradition, the local charge was dropped on February 5th, 1976. The Michigan Supreme Court was faced with a real dilemma here. They had to decide whether or not they could extradite an accused fugitive, not a person convicted of crime or a person who had violated parole or would jumped upon, but a person charged with crime in another state.
Warren E. Burger: Isn't that what most extraditions are, Ms.Cummins? The overwhelming majority are relating the person is merely charged.
Kathleen M.Cummins: Yes, Your Honor, I don't know what the statistics are on that. However, it's significant in this case.
William H. Rehnquist: Doesn't the Constitution say that a person charged in any state with treason, felony, or other crime, we shall flee from justice, and be found in any other state, shall, on demand of the executive authority of the state from which he fled be delivered up?
Kathleen M.Cummins: Yes, Mr. Justice Rehnquist.
William H. Rehnquist: Where's the dilemma then?
Kathleen M.Cummins: I don't -- I don't dispute the fact that extradition maybe he had on the mere charge. However here, the Michigan Supreme Court was provided with or the Michigan Governor originally was provided with documents in support of this charge which did not contain any particulars supporting the charge whatsoever.
Warren E. Burger: Well, does the Michigan Supreme Court reviewed the Governor's exercise of discretion or did they review under the Constitution and the Federal Act?
Kathleen M.Cummins: They are acting as a habeas corpus court, under the right of habeas corpus that has been traditionally provided to accuse fugitives. Now, what they were -- what they had before them were warrants -- a warrant, a complaint and an affidavit that were framed entirely in conclusions not only --
Byron R. White: They certainly indicated that the charge had been made.
Kathleen M.Cummins: Yes. They indicated that the charge should be made.
Byron R. White: And held that despite the Constitution, something -- some papers besides indicating something besides the charge was necessary.
Kathleen M.Cummins: No, Your Honor. What they said was that papers -- if a complaint and warrant were submitted in support of an extradition request that that complaint and warrant and other supporting affidavits or whatever have to reflect on their face sufficient details to support a probable cause finding.
Byron R. White: So your answer is yes, so they must show something besides the charge.
Kathleen M.Cummins: Yes, they must show something besides a mere conclusion that probable cause has been found in the mere name of the charge.
Warren E. Burger: But if he is indicted by a grand jury, could the Michigan courts re-examine the basis upon which the grand jury indicted?
Kathleen M.Cummins: No Your Honor, and the Michigan Supreme Court distinguish that situation. They said we are not dealing here with an indictment.
Warren E. Burger: But that's all, they said they're not dealing, but could they?
Kathleen M.Cummins: Right.
Warren E. Burger: Could they?
Kathleen M.Cummins: No, they couldn't -- they couldn't reach that situation.
Warren E. Burger: And what's the reason for that, because the Constitution uses the word “shall surrender up”?
Kathleen M.Cummins: I believe the reason for the distinction was that a grand jury indictment imports a finding of probable cause or at least a finding that is equivalent that the law views as equivalent to a finding of probable cause.
William H. Rehnquist: What if just a charge without any supporting papers have been furnished to the Michigan authority, would the Michigan Supreme Court have come out the same way in your view?
Kathleen M.Cummins: I think more so, they would have come out more emphatically.
William H. Rehnquist: So that it isn't a question of the Arizona authorities having furnished too much. It's the question that any demanding state mush furnish not only evidence of a charge but evidence of probable cause.
Kathleen M.Cummins: Yes, Your Honor.
William H. Rehnquist: Now, how do you reconcile that with the statement in matter of Strauss, the opinion this Court by Justice Brewer, where he says that who would doubt that an information is sufficient?
Kathleen M.Cummins: I think what matter that Strauss is really dealing with was, at what stage does a criminal prosecution have to be advanced before extradition can be had upon their charge? The matter of Strauss, the petitioner was arguing that since the prosecution had not advanced beyond the mere charge had not advanced to the state where he had been bound over for trial, that extradition couldn't be had on this basis.
William H. Rehnquist: But in Strauss, the Court does say an information would be sufficient, which is what was involved in Gerstein against Pugh, and this Court held was not sufficient for probable cause?
Kathleen M.Cummins: Yes, Your Honor but perhaps at least as far as that proposition is evident in matter of Strauss, that case should be re-examined in the light of Gerstein, but we don't have any dispute was Strauss' basic proposition in the mere charge is enough and that the meaning of the word “charged” is to be construed liberally.
Potter Stewart: What in fact, Ms.Cummins, was furnished by the demanding state by Arizona in this case?
Kathleen M.Cummins: The demanding state furnished a warrant supported by a complaint. The warrant and complaint were virtually identical in their language. They recited the charging language of the Arizona statutes for theft of an automobile or in the alternative embezzlement of an automobile. The complaint was sworn out by a police officer. It was made expressly on information and belief.
Potter Stewart: And sworn to?
Kathleen M.Cummins: Sworn to before a magistrate.
Potter Stewart: So it would be -- the constitutional provision says a person charge in any state and that's the extent of what it says. In that respect, and the statute says, if the demanding state produces a copy of an indictment found or an affidavit made before a magistrate, would you concede that the complaint fits that description, an affidavit made before a magistrate, fits the statutory requirement, the language?
Kathleen M.Cummins: Yes, Your Honor.
Thurgood Marshall: Where's the complaint --
Potter Stewart: It wasn't insufficient and so far as the -- it wasn't an insufficient demand so far as the statutory language goes?
Kathleen M.Cummins: No, Your Honor.
Potter Stewart: Right.
Thurgood Marshall: The Solicitor General said that date of January, of December was changed, where is that in the record?
Kathleen M.Cummins: Well, the complaint was amended to change the date of offense from December 18.
Thurgood Marshall: Is that in this appendix?
Kathleen M.Cummins: I don't believe that the amended complaint is in the appendix.
Thurgood Marshall: Well, how does it get before us?
Kathleen M.Cummins: Well, I was under the impression that the Court had at its disposal of the complete record.
Potter Stewart: We do.
Thurgood Marshall: Well, didn't you work on this appendix?
Kathleen M.Cummins: Yes. Yes I did, I discussed it beforehand.
Thurgood Marshall: And you left these -- you left two documents in here that were corrected, and you didn't put the corrected ones in.
Kathleen M.Cummins: Yes, Your Honor. However, I did mention in my brief that --
Thurgood Marshall: And you want me to rule with you and you don't even give me the documents to go with it.
Kathleen M.Cummins: I'm sorry for that oversight, Your Honor. However, I did bring this up in the brief and I referred the Court to the record in this case.
Potter Stewart: And the complete record has been filed with the clerk in this case, isn't it?
Kathleen M.Cummins: Yes, Your Honor.
Harry A. Blackmun: Ms.Cummins, may I ask an arrest warrant issued in Arizona, in this case, did it not?
Kathleen M.Cummins: A warrant.
Harry A. Blackmun: And arrest warrant.
Kathleen M.Cummins: Yes, a warrant accompanied the complaint.
Harry A. Blackmun: Yes, but it was an arrest warrant?
Kathleen M.Cummins: Yes, it was.
Harry A. Blackmun: But I wondered, Mr. Justice -- my brother Rehnquist asked you about Strauss earlier, there's another excerpt from Strauss, that was the word “charged” was used and its broad signification to cover any proceeding, which a state might see fit to adopt, by which a formal accusation was made against the alleged criminal. In the stricter sense of the term a party is charged when an affidavit is filed, alleging in the commission of the offense, and a warrant is issued for his arrest. And this is true whether a final trial may or may not be had upon such charge. Now, wasn't that test of Strauss satisfied by the papers that were filed in Michigan in this case by Arizona?
Kathleen M.Cummins: Yes, Your Honor, papers were filed which charge to crime --
Harry A. Blackmun: No, but my question is, there was a charge, a sworn charge of a crime in Arizona, together with a warrant, an arrest warrant that was issued. Doesn't Strauss suggest that that's enough to satisfy the requirement?
Kathleen M.Cummins: Strauss merely -- in my interpretation, Strauss takes a liberal view of the meaning of the word “charged” not as to the substance of the charge but as to how advanced the charge has to be, how advance the prosecution has to be --
Harry A. Blackmun: Well no, my real question was, wasn't everything that was submitted by Arizona, the Governor of Michigan in this case, did not -- those papers together satisfy what Strauss said would satisfy?
Kathleen M.Cummins: Oh yes, Your Honor, definitely.
Harry A. Blackmun: Then why doesn't Strauss cover this case and would call for reversal?
Kathleen M.Cummins: Because I think that Strauss has expanded or at least further clarified by other holdings of this Court which in extradition cases which state that upon habeas corpus review of the demanding state's charging documents, an accuse may raise a question of the substantiality of the charge and that this is a question of law and that it's limited (Voice Overlap) to the face of the document.
Potter Stewart: That's an issue that Strauss didn't deal with, that's your point, isn't it?
Kathleen M.Cummins: Yes.
Potter Stewart: That was not an issue in Strauss?
Kathleen M.Cummins: Yes, Your Honor.
Byron R. White: This warrant also resided, however, that a magistrate had found reasonable cause to believe. It wasn't -- they just didn't recite a charge but he affirmatively recited in the warrant that he had found reasonable cause to believe that the accused had committed the crime?
Kathleen M.Cummins: Yes, Your Honor but that --
Byron R. White: And you -- and you suggest that there must be some facts to support that, is that it?
Kathleen M.Cummins: Yes.
Byron R. White: Not only some facts but enough facts to satisfy the asylum state that there really is probable cause?
Kathleen M.Cummins: Yes, Your Honor.
John Paul Stevens: Even on then, Ms.Cummins, why in the other document filed, it gives the name, the motor number that vehicle, describes a vehicle that registered owner of the vehicle, and he says he took it from that person on such and such a date, wouldn't that be enough substantiation effect that there had been a -- there was probable cause, together with this conclusory statement of the magistrate that I have found probable cause? Why do you need more and how much more do you need?
Kathleen M.Cummins: Well, these details that you mentioned are really not facts, they're conclusions.
John Paul Stevens: Well, but didn't the arresting officers in Michigan verify that this was a vehicle and they arrest him, because he was thought to be in possession of a stolen vehicle that this had been -- I mean didn't they know this?
Kathleen M.Cummins: They knew no more than the complaint which was eventually issued, which was stated on information and belief.
Warren E. Burger: But are you suggesting that the charge in Michigan had no basis? The Michigan criminal charge against this man that was dismissed is telling us that had no basis in law in fact?
Kathleen M.Cummins: It's quite possible. The details surrounding that charge, as I mentioned, are extremely murky. The important point here is that the details surrounding the Arizona charge are also extremely murky. We have the owner's name, we have the vehicle number, we have the defendant's name, we have the names of the relevant statutes involved, we have a conclusion stated on information and belief that these facts --
Warren E. Burger: Well, didn't Justice Brewer in Strauss -- didn't Justice Brewer in Strauss emphasized that this was not the time and place to be trying out the facts of the case and the evidence?
Kathleen M.Cummins: Oh yes, Your Honor. Oh, yes.
Warren E. Burger: You seem to be calling for some evidence rather than ultimate facts.
Kathleen M.Cummins: No, Mr. Chief Justice we're not calling for evidence, the Michigan Supreme Court was careful to point out, we do not suggest that we inquire into the underlying facts. What they were attempting to do is make a confirmation of probable cause based only on the face of the documents. Not inquiring into the merits of the criminal prosecutions, because as this Court has noted, the question of probable cause is viewed as extraneous to the questions of guilt or innocence. And what the Michigan Supreme Court was compelled to find was that these papers on their face were factually deficient to show probable cause and hence, could not provide a factual basis for magistrates independent finding of probable cause.
Warren E. Burger: Didn't someone -- some official in the State of Michigan make a determination of facts that there are essentially consistent with the determination made by the magistrate in Arizona?
Kathleen M.Cummins: The Governor of Michigan --
Warren E. Burger: No, I'm not speaking of the Governor, I'm speaking of whatever judicial or other officer caused to be filed a charge against Doran in Michigan courts. That was repossession of a stolen car, wasn't it?
Kathleen M.Cummins: Yes, Mr. Chief Justice.
Warren E. Burger: Well then, suppose there's a deficiency, some of deficiency for the moment in the conclusions that you object to, aren't they supplied to the State of Michigan, by Michigan's own action? Michigan has found that this man has a stolen car in his possession, and it happens to be the same car that Arizona said he took out of the State of Arizona.
Kathleen M.Cummins: Yes, Mr. Chief Justice but the issues in our case of receiving and concealing a stolen vehicle are different from the issues involved in the charge of larceny. And further, as I said before, I'm not willing to concede that the charge in Michigan was founded and even if it were, the papers that Michigan was presented with, even if there were additional details that could have been brought to Michigan's attention, what was brought to Michigan attention was not sufficient to permit an independent assessment of the question of probable cause by Michigan. And the Michigan Supreme Court held that they have that right not to hold an evidentiary hearing in the asylum state to determine whether or not probable cause existed, but merely to confirm the question of probable cause.
William H. Rehnquist: Well, Michigan Supreme Court really didn't hold that they had that right in the sense of the Governor Miller can have that right, they said that Governor Miller couldn't execute the extradition warrant because the Federal Constitution prohibited from doing so, until they made that determination, didn't they? This wasn't a question of Kentucky against Dennison type of thing, where Michigan voluntarily says we won't do it until we're satisfied.
Kathleen M.Cummins: No, the Michigan Supreme Court stated categorically, this state cannot extradite, unless provided with sufficient details in the case like this to confirm a showing of probable cause.
William H. Rehnquist: And the reason was the Federal Constitution.
Kathleen M.Cummins: Yes.
Thurgood Marshall: Ms.Cummins, I have before the record, which consists of a certification of the record, the briefs and appendices and opinion of the Court. Now, where is the material that you can show me where he was at?
Kathleen M.Cummins: Well, Mr. Justice Marshall, perhaps this confusion is resulting from my ignorance of this Court's procedural rules about who's responsibility it is to bring up the entire record. It was my -- when I receive the rules from the clerk instructing us on how to prepare an appendix, the rules seems to state that --
Thurgood Marshall: All I'm saying madam --
Kathleen M.Cummins: The appendix need not necessarily be complete because the Court would have the whole record before it.
Thurgood Marshall: All I'm saying is that you told me it was here a few minutes ago.
Kathleen M.Cummins: I assumed that was here, Your Honor.
Thurgood Marshall: Well, thank you.
Harry A. Blackmun: Ms.Cummins, I suppose this is completely irrelevant, but does the record show whether the Arizona Justice of the Peace who issued the arrest warrant was a lawyer?
Kathleen M.Cummins: No, Your Honor. As a matter of fact the record does not show that. In Arizona, I believe Justicea of the Peace are not required to be lawyers.
Harry A. Blackmun: Secondly, is there any evidence in the record that the Justice of the Peace have before her the nine-page report that is referred to in the supporting affidavit of February 3?
Kathleen M.Cummins: There's an indication that she didn't have this before her because that affidavit was issued February 3rd and the warrant and complaints were issued January 7th.
Byron R. White: But we don't really know that the totality of what was before the Justice of the Peace.
Kathleen M.Cummins: No, we don't.
Byron R. White: That might have been personal statements, aren't they.
Kathleen M.Cummins: There might have been the Arizona procedures as pointed out by the Attorney General does provide for additional investigation. As a matter of fact, it makes it the magistrate's duty when faced with the complaint based solely on information and beliefs, such as here. However, here, there is no indications that such additional investigation ever took place. And the facts of the complaint and warrant and just the way that they are framed, such as the amendment of the date of the offense and the fact that the offenses are stated in the alternative, seem to indicate that Arizona did not have additional facts. But, if they did have additional facts it would have been of little imposition on them, and very little imposition on the extradition process to have included those additional facts in the face of their extradition supporting documents. Then that's all we're requesting here. We never suggested that the scope of extradition habeas corpus should be expanded beyond an analysis of the face of the documents. All we're suggesting is that this is really a minimal safeguard to impose in light of the very, very serious threat to personal liberty by extradition.
Byron R. White: Oh, I suppose -- I suppose you would permit the demanding state to participate in the hearing?
Kathleen M.Cummins: If they had expressed any interest in doing so, yes.
Byron R. White: And would you permit them to present evidence of probable cause?
Kathleen M.Cummins: Yes, Your Honor, although we are not suggesting that habeas corpus review be expanded beyond a legal review of the sufficiency of the documents. And I don't -- and I think if that were proposed, that that would present a serious question of whether or not the extradition process was being encumbered and whether or not that would for one the means that extradition clause.
Byron R. White: You mean -- you mean if the demanding state -- if the asylum state determine that the papers were insufficient, that it would really expedite extradition to say the demanding state couldn't even supplement the information?
Kathleen M.Cummins: Oh no, Your Honor. Oh no, I don't want to be interpreted as saying that. What I'm suggested here is just the minimal requirement, the bottom line, that if they don't wish to make a factual presentation in asylum court and certainly they're not required to do so that they at least provide papers showing probable cause or at some later date provided additional facts upon which probable cause can be confirmed and that was never done here.
Byron R. White: But no matter how probable cause is determined in the demanding state or had been determined you would say the asylum state has a constitutional obligation to review that determination?
Kathleen M.Cummins: Yes, Your Honor because if confirmation of probable cause is not had in the asylum state prior to rendition, then the accused will have no Fourth Amendment remedy for extradition, once extradition takes place.
Byron R. White: Well, Gerstein said there should a probable cause determination, isn't it?
Kathleen M.Cummins: Yes, Gerstein --
Byron R. White: Well, if the demanding state says there has been then you have no reason to doubt that the fact that that event took place, why hasn't Gerstein satisfied?
Kathleen M.Cummins: Because Gerstein requires a probable cause determination by a neutral and detached magistrate.
Byron R. White: I know but the papers here show that there was one in the demanding state.
Kathleen M.Cummins: Your Honor, this Court has always held that a probable cause finding by a neutral and detached magistrate maybe subject to review to determine if there were facts before the magistrate which really indicate that he made an independent assessment of probable cause.
Byron R. White: Yeah, but not in the -- not in the asylum state?
Kathleen M.Cummins: But in the situation of a conventional arrest or a conventional search warrant, in here, extradition poses arguably and even more significant restraint than a mere arrest or a search. And since, the accused will have no Fourth Amendment remedy for extradition once he returns, it is important, it is essential to require that the asylum state be able to act as a reviewing court and make the determination of probable cause, based on facts efficient to show that the magistrate acted independently and was not merely rubber-stamping the conclusions of the police. And if there was ever an example of rubber-stamping it is exists in the Arizona documents here.
Potter Stewart: In Gerstein, that's exactly what was alleged, had been done. The -- the people were arrested and picked up simply on information filed by the prosecutor and they were in confinement and the Court didn't question that original confinement, that it did in Gerstein. It simply said that those people were entitled to a prompt review at which it was incumbent upon the prosecution that show probable cause, is that right?
Kathleen M.Cummins: Yes sir.
Potter Stewart: And this person would have all these -- your client would have all these Gerstein rights when it was returned in Arizona, wouldn't he?
Kathleen M.Cummins: No, Your Honor.
Potter Stewart: Assuming that he says he didn't have them.
Kathleen M.Cummins: Gerstein afforded the right to interpose a probable cause determination between arrest and the point where a restraint becomes significant and in the extradition --
Potter Stewart: Well, but that was a point after some confinement, wasn't it?
Kathleen M.Cummins: Yes, but in an extradition case, the restraint becomes significant when the person is extradited, and after he's extradited he has no remedy. This Court has said there's no remedy for extradition.
Potter Stewart: He has all the remedies that Gerstein has in the State of Florida and that he would have had, had he not left Arizona.
Kathleen M.Cummins: But there's two phases to an extradition arrest. It's not merely detention in the demanding state. It's also forced travel, once back in Arizona we go dispute --
Potter Stewart: Forced travel back home?
Kathleen M.Cummins: Yes.
Potter Stewart: I mean --
Kathleen M.Cummins: No, Your Honor. I believe the Attorney General conceded then Mr. Doran's home was Michigan but even so once back in Arizona he would have redressed, Fourth Amendment redress from extended pre-trial restraint, but not from the forced travel. He would have lose his remedy for that.
Thurgood Marshall: Correct, you and I together, it's -- starting at page 86, there's a full discussion in the appendix of the changing of the dates. That's what I was asking about it, it's in the appendix, you were right.
Kathleen M.Cummins: Thank you, Your Honor.
Byron R. White: Could I -- can i ask you if -- suppose an information is filed but the defendant isn't in custody and then the officer goes before a magistrate, an independent magistrate, and wants to get an arrest warrant and he gets it on a determination of probable cause, then he is arrested. Now, Gerstein doesn't require another determination of probable cause.
Kathleen M.Cummins: Gerstein merely --
Byron R. White: Does it or not?
Kathleen M.Cummins: No.
Byron R. White: Well, in this case, the officers who swore out to charge also got a warrant from a magistrate. Now, why isn't Gerstein on the face of the paper satisfied?
Kathleen M.Cummins: Because Gerstein required a determination by a neutral and detached magistrate not a mere --
Byron R. White: Well, what was it -- how do you know this wasn't a neutral and detached magistrate, this was a Justice of the Peace?
Kathleen M.Cummins: Because there's no indication of the facts upon which a neutral and detached finding a probable cause could have been made.
William H. Rehnquist: Well, that's saying that she acted wrongly not that she was not neutral and detached.
Kathleen M.Cummins: Part of the neutral and detached requirement extends to whether or not the facts are sufficient to convince -- a) to support an independent finding, a detached finding, and b) to satisfy the review in Court, that such a detached finding was made.
William H. Rehnquist: In Shadwick against City of Tampa which Justice Powell wrote for the Court some years ago, we held that city clerks of this Tampa were neutral and detached magistrates. And I don't think we felt that incumbent to review all the probable cause determination they've made over the course of six months or year to decide whether they're neutral and detached. It's just wasn't separate from prosecuting her.
Kathleen M.Cummins: Yes, that's one aspect of the neutral and detached requirement that was review in Shadwick v. Tampa, and the question there was whether or not clerks of the Court could be judicial officers. We're not even contending that magistrate here was not judicial officer.
Byron R. White: Suppose this warrant have been signed by a judge of the Court of general jurisdiction in Arizona, but it had exactly the same recitation in it, I have determine that there's reasonable cause to believe, etcetera. Now, would you say the same thing you were entitled to go behind that determination?
Kathleen M.Cummins: We would make exactly the same claim we're making here, which is not to go behind the determination, but merely to confirm the determination on the basis of face of --
Byron R. White: Confirm it or disagree with it, either one?
Kathleen M.Cummins: Or disagree.
Potter Stewart: So you really want two bites of the apple?
Kathleen M.Cummins: Not necessarily, Your Honor.
Potter Stewart: In Arizona and in Michigan.
Kathleen M.Cummins: Not necessarily, Your Honor, but in an extradition case, not a renewed finding, not a rehearing but a confirmation of the existence of probable cause must be made if the accused rights are to be protected.
Warren E. Burger: Of course, as a practical matter, this man has spent more than two years in Michigan jails, when he might have had this whole matter resolved by simply responding to the extraditions.
Kathleen M.Cummins: He might have --
Warren E. Burger: So the hardships cut both ways, don't they? Certainly, when the hardship --
Kathleen M.Cummins: He might have, he wish to avail himself of his habeas corpus remedy and that did not entail an admission by him of guilt.
Warren E. Burger: Very well, Ms.Cummins. Do you have anything further?
Robert A. Derengoski: Mr. Chief Justice, I'd forego the remainder of my time, but I would like to say this sir. I have bare a heavy responsibility as the petitioner for the preparation of the appendix and the amended complaint and warrant are at 62a and 64a. Thank you.
Warren E. Burger: Thank you.
Thurgood Marshall: Does the entire transcript over the habeas corpus herein had been done?
Robert A. Derengoski: No sir, its not in here.
Thurgood Marshall: I mean is it available any place?
Robert A. Derengoski: Yes sir, I believe it is?
Thurgood Marshall: Is there anyway you can get it for us and file it with the clerk?
Robert A. Derengoski: Yes sir, we'll file it with the clerk.
Warren E. Burger: Arrange this, have it sent to the clerk. Thank you counsel, the case is submitted. We'll hear arguments next in --