Earl Warren: Number 245, Milton Berman, Petitioner, versus United States.
Bernard B. Polak: Mr. Chief Justice --
Earl Warren: Mr. Polak.
Bernard B. Polak: Mr. Chief Justice, may it please the Court. We have here an appeal or a putative appeal of a criminal defendant whom, through some type of error or negligence, did not get his notice of appeal filed within 10 calendar days after the judgments of conviction was pronounced in open court. The judgment of conviction was pronounced on April 24 after 2 o'clock pm in the afternoon. The written judgment and commitment was signed and was filed with the clerk of the Court the same day. That day, a postcard was sent to counsel's office, my office. We have a notation on that judgment which is in the original record. The notation however, not being transcribed by the printer of the record that it was docketed as a judgment the following day, April 25th, which was a Thursday. That docketing relates only to the civil aspects of this judgment. It -- providing for a fine as well as a prison term and the docketing which was done the next day in the civil judgment docket was on a Thursday. We do concede that we are concerned with the criminal appeal here rather than the civil appeal.
Earl Warren: (Inaudible)
Bernard B. Polak: That was a fine Your Honor.
Earl Warren: (Inaudible)
Bernard B. Polak: Well, that was because it was in the civil judgment docket. It was a criminal judgment, Your Honor. There's no --
Arthur J. Goldberg: (Inaudible)
Bernard B. Polak: That is correct, Your Honor.
Arthur J. Goldberg: (Inaudible)
Bernard B. Polak: All of the judgment was entered in the file of the criminal docket against this defendant on -- on or as of April 24. On April 25th, it was entered in the docket of civil judgments as a judgment of the United States of America against the defendant for $10,000 or for the amount that he was fined herein.
Arthur J. Goldberg: (Inaudible)
Bernard B. Polak: That --
Arthur J. Goldberg: (Inaudible)
Bernard B. Polak: That appears in the original record here, Your Honor. Now, if that docketing has a judgment on April 25th could be considered effective, then the 10 days from that would have expired on the Sunday and by the provisions of the roof of a computation of time would carry over to the following Monday. This is one -- one point that can be noted from that notation on -- on the docket. And that is stamped by a rubberstamp on the original judgment and commitment dated April 24th. And I have checked the docket of the U.S. District Court in the Southern District Of New York, and in that docket book of money judgments, that notation appears under the date of April 25th, the following date. The --
Earl Warren: When does the time for appeal start to run according to your -- your theory whether it's announced and opened -- a sentence then announced in open court or when it's -- it's --
Bernard B. Polak: Well it would seem that --
Earl Warren: -- reported.
Bernard B. Polak: -- from the weight of authority of this --
Earl Warren: I beg your pardon?
Bernard B. Polak: From the weight of authority of this Court and of the Circuit Court of Appeals, we would have doubts as to whether we could rely upon the April 25th docketing of the fine as giving us a right to appeal. The whole doctrine of authority and of this Court in the past, has considered the sentencing in open court to be the principle point. However, this is a factor that enters into this case that may distinguish it from other cases that there was a separate docketing of this case as a civil judgment the following day.
Earl Warren: Oh, they take the sentence as it was given in Court, why does it make any witness when -- when it was docketed after that?
Bernard B. Polak: Because the -- the docketing -- if the metaphysical concept of entry of judgment is to be considered, the actual entry into the clerk's docket as of the time when the clock starts to run, then it may well be that if the Government or the Court chooses to enter the judgment as a money judgment as well as a criminal judgment that the fact that this is effective the following day, at least gives him the right to appeal from the money fine or the judgment insofar as it is a money fine.
Earl Warren: Well, on what -- what authority do you rely of the fact that the fine was a civil judgment?
Bernard B. Polak: I -- I have no authority, Your Honor -- I --
Earl Warren: So why do you --
Bernard B. Polak: That -- that is an --
Earl Warren: Why do you call it something different then, from the -- in terms of imprisonment?
Bernard B. Polak: I would like to withdraw that. I was thinking in terms of inspection -- inspecting books and the docket that was entered into was a docket of civil judgments for money.
Arthur J. Goldberg: (Inaudible)
Bernard B. Polak: That is correct, Your Honor.
Arthur J. Goldberg: (Inaudible)
Bernard B. Polak: That is correct, Your Honor. My principle point is if this appeal is to be considered as a -- a matter of limitation upon the right of the defendant to file his notice of appeal as it has been found in previous cases that the defendant ought to be accorded, every benefit of any possible doubt of interpretation of the rule in as much as the right of a defendant to appeal to the extent that it is to be considered as a right by this Court, deserves protection. The defendant's rights herein concern some constitutional points, points that may not have been appreciated too well by counsel that urged these points upon the trial court or by the trial court itself that decided the points. The point of course being the claim that the search and seizure of contraband at premises where the defendant had desks space that he rented from an overall lessee of the premises was to be considered, he stops from raising an objection to the search and seizure on the ground that his landlord who was the overall tenant of the premises had consented. It was upon this ground that the trial court finally denied the motion of the petitioner in the trial court to suppress all evidence that was raised and seized upon that search including an alleged statement that was given by the petitioner to the arresting officers after the contraband was found. On Monday of this week, this Court, in Stoner against California, indicated in very strong terms that a person having legitimate claim to protection of his right against search and seizure has standing an interest to complain of it regardless of who else may have consented to the search. This decision certainly was presaged by this Court's decision in Jones against United States and in Chapman against United States as well as the earlier case of McDonald against United States in 1948, which -- although it is not cited in my brief, I --
Speaker: (Inaudible)
Bernard B. Polak: This is -- this is a -- another problem that this Court really must consider because the last case where the principle point was raised, United States against Robinson, this Court indicated that where the constitutional rights of a defendant were at stake, he would always have the right to have a collateral attack brought against the judgment on the grounds that the infringement of his constitutional rights vitiated it. This is a statement in United States against Robinson that the Government cites in its brief.
Earl Warren: Was this a collateral attack?
Bernard B. Polak: This is not a collateral attack, Your Honor. This is a direct appeal and certiorari upon a direct appeal. However --
Earl Warren: Well, how does that answer the question whether it's just been confounded to you?
Bernard B. Polak: The second appeal herein, as you may recall from the record after the first appeal was dismissed, the -- a petitioner brought a proceeding under Rule 35 of the Rules of Criminal Procedure in the District Court to modify and correct his sentence. This motion was granted by the trial court and judgments denoted as an amended judgment and commitment was entered on June 10, 1963. The defendant petitioner filed a notice of appeal the next day from that and --
Earl Warren: And does that give you an appeal from the original judgment of conviction or from -- from the --
Bernard B. Polak: There is an indication in the --
Earl Warren: -- decision of that order?
Bernard B. Polak: There is an indication in the earlier Berman case which of course has no relation to this particular petitioner, in 1937 where that particular procedure was attempted to be followed by the petitioner in that case who thought that his appeal was in jeopardy of being dismissed and hoped that he could revive it by making such a motion in the lower court which motion was granted and a relief sought therein was granted. This Court, in that case, held that the first appeal was still a valid appeal and decided that first appeal on the merits and held that the District Court did not have jurisdiction to sentence the man. That question was really left open in the Berman case. There is a Circuit Court opinion cited in my brief, Bridges against United States wherein the Circuit Court, in reviewing a petitioners -- an appellant's claim of invalidity upon a remote collateral attack upon a judgment, held that the failure of that appellant to have made an appeal when the Court sua sponte had entered a corrected judgment months subsequent to the original judgment of conviction was thereafter precluded or at least prejudiced by his failure to have appealed from that corrected judgment. From the indications in these cases, it is apparent to petitioner that where -- not only the petitioner asks that the judgment be corrected by any reason but where the Court sees fit to grant that application and thus enter an amended judgment thereon. And it is noted in the record on appeal herein that in the oral argument that preceded the entry of this corrected judgment, that the history of the dismissal of this appeal and the desire of the petitioner to appeal claimed errors of the original conviction, was urged before the trial court. And the trial court in its colloquy or pronouncements to counsel took note of the fact that the defendant desired to have such an appeal. It is submitted by petitioner that if that second judgment did not open up the petitioner's right to appeal from the original conviction -- it's -- in its entirety that the effect of that second appeal should at least be considered equivalent to a collateral attack upon that judgment rather than to burden the petitioner appellant to go back to the District Court and make a motion under Section 2255 of -- I believe, Title 18 to set -- assign the judgment of conviction on the ground that it was obtained by the use of illegally seized evidence that where he --
Speaker: (Inaudible)
Bernard B. Polak: The remedy of 2255, I have doubts about even that Your Honor. All of these things are doubtful to me.
Hugo L. Black: (Voice Overlap) -- suppose you did, would it have any effect on this case?
Bernard B. Polak: If it is available, it would seem a matter of judicial economy to consider on a direct appeal that which could be treated upon a collateral attack. There must be some effective meaning to the statement of this Court in United States against Robinson, that where there is an error of constitutional degree that the defendant is not barred and precluded by the fact that the 10-day rule may serve to preclude his direct appeal because in such an injustice, this Court has said, “The aggrieved defendant can go back to the District Court for collateral relief.”
Hugo L. Black: Do you think argument or the holding either or the philosophy of the Noia case has any relationship to that question?
Bernard B. Polak: Well it would seem contrary, Your Honor. It would seem that -- that the Fay against Noia case would indicate that it is a constitutional -- I'm sorry, a jurisdictional matter to have this. But it -- what -- we really are --
Hugo L. Black: Jurisdictional matters to do what?
Bernard B. Polak: To file your appeal within the 10-day period be it as it may. It is our contention that in as much as the 10-day rule is a rule and not a statute, that the rule is subject to interpretation to a greater degree than a statute could be interpreted, and that --
Hugo L. Black: But suppose -- suppose that there was a 10-day rule appeal in that case and they were delayed and if we prove them that that confession had been coerced as it was in Brown against Mississippi. Would you say that that could be in fact collaterally?
Bernard B. Polak: I would certainly urge that point upon this Court and any court where any type of grave constitutional error occurs, it would seem that it is within the province of the Courts of the United States to entertain a claim which a defendant maybe able to substantiate, that his constitutional rights were infringed either by a coerced confession or by an unlawful search and seizure or by any other infringement of any constitutional right of a petitioner. The --
Hugo L. Black: As I recall, there was much discussion of that type of question in Fay against Noia.
Bernard B. Polak: I would certainly --
Hugo L. Black: That's a philosophy which you have just expressed in connection with appeals. The right not to have your constitutional right cut-off and when it is to be cut-off, violated, by delay and put into proceeding, a failure to raise it at the proper moment.
Bernard B. Polak: Well -- we'll -- we -- we'll we have to concede that, Your Honor.
Hugo L. Black: I mean (Inaudible) --
Bernard B. Polak: To the extent --
Hugo L. Black: (Inaudible) -- I think you'd be very fortunate to concede it.
Bernard B. Polak: Well, it's there. The decision is on the record and the question is whether or not that that should be applied herein. We still have the matter that the Court was open only three hours on a Saturday. The sentence was admittedly pronounced in the afternoon. There -- if the defendant is to have the benefit of 10 full days, should that be precluded by the fact that the time was not a full 10 days but even a half hour or an hour or less than 10 full days.
William J. Brennan, Jr.: Because I gather (Inaudible) --
Bernard B. Polak: That is a separate point.
William J. Brennan, Jr.: Yes.
Bernard B. Polak: There is one --
William J. Brennan, Jr.: And your other argument is that the actual entry of the fine under the judgment record, however that was done as Justice Goldberg just discussed with you, on the 25th, starts -- the time running from the 25th so again, you're filing another suit here on May 6 for the time, that --
Bernard B. Polak: That is correct, Your Honor. There are two separate facets of my argument.
William J. Brennan, Jr.: And your third -- and your third deals with the -- the disposition of the Rule 35 motion, does it?
Bernard B. Polak: That is correct, Your Honor. And I may add a fourth that where the procedural steps are taken to put a case into an appeal court where there is a narrower constitutional degree that is involved that the Court ought to consider it. Perhaps contrary-wise to the prior rulings of this Court as has been mentioned by --
William J. Brennan, Jr.: Well, I -- I forgotten, was Robinson, was that a constitutional claim? In Robinson, I forgot the claims.
Bernard B. Polak: I don't have that in front of me, Your Honor, the Robinson case, the type of case that was involved. That appeared to be one only on the calendar and the issue there seemed to be confined to a matter of calendar. It is -- I -- I'm unable to answer that question. But, it would seem that if there were any grave constitutional issues in that case that it would be possible to determine that from the record in that case. And I regret that I'm unable to answer that question of the Court. It would seem in conclusion that regardless of how a petitioner's right of appeal may expire a normal cause that if he is able to demonstrate some constitutional error involved in the original proceeding in the trial and the trial court therein is willing to enter a corrected and amended judgment even though under Rule 35 on a purely technical point of reduction of sentences. The fact that a judgment is entered and it is a judgment and a criminal judgment of the District Court that his right to appeal therefrom, even the ordinary right of appeal should be permitted to the extent of at least the constitutional questions that were involved in the original conviction. It -- it seems that this is what the Court -- the Circuit Court in Bridges against United States meant when it discarded the appellant's later collateral attack when he hadn't made no direct appeal from the corrected judgment that was entered by that court. And it would seem that whenever any judgment is entered in the criminal docket in that particular case, if the defendant at any stage of the proceeding has been aggrieved by constitutional errors that have contributed to that judgment. It would seem that the defendant should be able to appeal to the extent of urging those constitutional errors.
Hugo L. Black: Is there any dispute about the reason why this one -- this appeal was one day late?
Bernard B. Polak: There is none, Your Honor. That is entirely my own responsibility.
Hugo L. Black: Because of what?
Bernard B. Polak: Because I left that office at 3 o'clock that afternoon and went home. And I had been instructed personally to file it, it was supposed to have been taken care of other personnel in the office.
Hugo L. Black: You've been instructed to file the appeal that afternoon?
Bernard B. Polak: That afternoon, that's right Your Honor and I didn't.
Hugo L. Black: (Inaudible) until Monday.
Bernard B. Polak: That's right, I let it go. I was a New York lawyer and I had not been completely apprised of the interpretation and meaning and very terrible consequences of the 10 days and what the meaning was and I followed our usual New York practice which is if time expires on a Saturday, you can do it on a Monday morning.
Hugo L. Black: Then when did you go to the Judge, that amending motion?
Bernard B. Polak: Immediately after the first appeal was dismissed. The motion to dismiss the first appeal was made on or about the same day that it was filed which was that following Monday, May 6. On May 6, the appeal was filed and immediately, the United States attorney moved to dismiss it. For the purpose of that motion, the Court of Appeals considered that it had jurisdiction at least to decide to dismiss that appeal. At that point, immediately, we went back to the District Court and moved to amend the sentence under Rule 35. And as soon as the judgment was entered, we appealed then.
Hugo L. Black: Well, I suppose, if it was wholly without jurisdiction again, jurisdiction whatever that would mean, how can it have been -- had jurisdiction or even had print this? It was wholly without jurisdiction to do anything about it.
Bernard B. Polak: The Court did entertain that jurisdiction. Thank you very much, Your Honor.
Earl Warren: Mr. Gilinsky.
Theodore George Gilinsky: Mr. Chief Justice, may it please the Court. This case is here on a writ of certiorari from the Second Circuit to review two separate dismissals and presents basically two questions. The first question is, when the last day to file a notice of appeal is a Saturday, whether the notice of appeal filed on Monday will suffice because of -- of a number of reasons either at the New York -- certain courts in New York have a practice where they exclude Saturday or because the clerk's office -- the federal clerk's office in New York was open only half a day on Saturday. The second appeal which was dismissed presents the second question which in substance is whether an appeal maybe revived after the time -- the 10-day period has expired by a nominal reduction in a sentence. In other words, may the District Judge deliberately enlarge the period for taking an appeal from 10 days to -- such as this case, a period of a month and a half?
Arthur J. Goldberg: (Inaudible)
Theodore George Gilinsky: He could have reduced it to zero.
Arthur J. Goldberg: (Inaudible)
Theodore George Gilinsky: On the -- the rule does not provide for vacation, Your Honor. The rule provides that he may reduce a sentence within 60 days of the sentence or it may be reduced 60 days after its return from the Court of Appeals or 60 days after this Court would deny it.
Arthur J. Goldberg: (Inaudible)
Theodore George Gilinsky: Well, that he can do any time. That 60 days -- if it's an illegal sentence, 60 days has nothing to do with it. Now, he can do that -- any judge can eliminate an illegal sentence on a motion at anytime and that's the first sentence of Rule 35.
Arthur J. Goldberg: (Inaudible)
Theodore George Gilinsky: Well --
Arthur J. Goldberg: (Inaudible)
Theodore George Gilinsky: Well, I -- I'm -- I'm not sure that you and I are talking about the same thing. We say vacate but I would -- I would say this, I think a judge has the power within this 60-day period, which measure from different spaces, to reduce a sentence to zero. Now, that may be a vacation and put a man on probation, let's say, or something like that. There's no -- there's no indication in the rule that would forbid. As a matter of fact, that this is part of the purpose of the rule that the judge can have a second thought so to speak on the extent but it was limited deliberately as to time because as a matter of fact, the old practice was that they would extend the term to hold it over the head of the defendant and the idea was to get rid of this and to allow the District Judge only 60 days within which to do this type of thing.
Arthur J. Goldberg: (Inaudible)
Theodore George Gilinsky: I don't think it could be done in those terms. There -- there is a way it could be done. I mean this isn't a problem of rules. What you are talking about is something -- for instance, there is no question that on the collateral attack, which can be entered at anytime in this -- in the course of a -- a proceeding, that if there is something inherently wrong which have raised the judge has a right to vacate it.
Arthur J. Goldberg: Yes.
Theodore George Gilinsky: Once that's done, I would assume, although I think it -- it would take some peculiar and unique circumstances to -- as a matter of fact, I would be surprised to find a judge merely entering a judgment of acquittal except in the case where the indictment, let's say, was absolutely invalid and --
Arthur J. Goldberg: (Inaudible)
Theodore George Gilinsky: -- and so that what you would get to eventually is that what -- what's happening in this kind of a case is that they got an illegal -- illegal sentence so there are a number of ways to get to this.
Arthur J. Goldberg: (Inaudible)
Theodore George Gilinsky: Well, as I say I think that there are ways that this can be done. I don't have any question.
Arthur J. Goldberg: (Voice Overlap) --
Theodore George Gilinsky: I have no question about its jurisdiction to do it if it's properly presented to him and I -- there's no --
Arthur J. Goldberg: (Inaudible)
Theodore George Gilinsky: I don't think that we've ever questioned this one.
Arthur J. Goldberg: (Inaudible)
Theodore George Gilinsky: I beg your pardon? I don't -- I'm -- I'm not sure that you and I -- what -- I'm not certain what you mean when you say a mistake. If you mean that a -- a judge has looked at either the sentence has decided that this man -- well, we're talking about two things, I think. The problem of sentence, that is whether a man should be punished for a crime is -- is something that is separate apart from whether or not he is guilty even. And -- and --
Arthur J. Goldberg: (Inaudible)
Theodore George Gilinsky: Well, I'm not sure but I think it would arise in the same type of -- I -- I know of no case like this but I think that what you are talking about could arise in a type of proceeding that gives a judge jurisdiction power to grant a new trial. And in that circumstance -- I mean after all, once you granted a new trial, you start fresh and -- and then I go back to my example of an invalid indictment or for any reason the judge enters a judgment of acquittal. Now, the Government may be very unhappy that we haven't had a chance to even prove it nor we're -- we're suddenly thrown out. We have no right to appeal and so forth but I have no doubt that the District Judge has power in certain circumstance. Whether or not in all circumstances, I think would be questionable because I think it depend on the facts. In other words, I don't think -- well, I don't -- I can't imagine, first of all, any judge just doing it for no reason. Once you get to some reasons, you see, you find ways to do this.In other words, if there is an indictment that's invalid, I can find reason but I mean if -- if you just have a whim, this is difficult for me to -- to work with. In any event, they -- the -- the second issue presented by the second appeal in this case really comes down to whether the District Judge can purposely enlarge the period from 10 days to, as in this case, approximately a month and a half. At the outset, I think I should make the -- the Government's position clear about two matters. One is the rules. We do not say that the rule should not be changed or that this rule is the best rule that could be devised and certainly, the Rules Committee have these rules under consideration and that's why they're rules so that they'd be -- can be continually looked at in view of our experience and possibly some changes made. The second thing is that we feel that in 1960, when this Court decided United States versus Robinson, that to a great extent, the excuses that are now offered in this case are of no different caliber or no different substance than the excuses that we're offered in Robinson and at that time, it was decided that the period for appeal cannot be enlarged, where the failure to take the appeal was due to the neglect of counsel even though it was excusable neglect of the counsel.
William J. Brennan, Jr.: Mr. Gilinsky, do you -- do you recall, I noticed the opinion doesn't indicate, what were the merits of Robinson's claim, were they constitutional?
Theodore George Gilinsky: There were no merits in -- in the -- in the case, Your Honor, because it arose on a notice of appeal. No one ever --
William J. Brennan, Jr.: I see, (Inaudible)
Theodore George Gilinsky: You -- you see, one of the things I --
William J. Brennan, Jr.: What happened there is that it was appealed --
Theodore George Gilinsky: It was -- it was a manslaughter case in the District of Columbia.
William J. Brennan, Jr.: It was a murder case in which he got a manslaughter conviction.
Theodore George Gilinsky: That's right.
William J. Brennan, Jr.: We don't know what (Inaudible) --
Theodore George Gilinsky: What he would have raised.
William J. Brennan, Jr.: -- (Inaudible)
Theodore George Gilinsky: No, no. As a matter of fact, this is one of the problems you see about petitioner's new suggestion of -- of collateral attack. You see, what really happens on a notice of appeal is that they're just a paper file. There's no -- one of the things we got away from in the rules was the -- the idea of setting forth why a person has to take an appeal, setting out the reasons and so forth. So that all that the petitioner has to file is a paper saying, "I want to take an appeal." Doesn't -- he doesn't have to present any issues. So that what the Court of Appeals has in most cases is merely a notice of appeal saying, "I want to take an appeal." They get the docket entries from below and the Government's motion to dismiss because of the timeliness of the -- of taking the appeal, so that the question of the real issues which may or may not be involved in some case are never really truly presented to the Court of Appeals and in an appellate procedure.
Hugo L. Black: Suppose this man had had no lawyer at all and he had not taken the appeal within 10 days, that's all that occurs, the court sends him, he had no lawyer, could the court have dismissed his appeal because he filed it late?
Theodore George Gilinsky: Well, I have to make two assumptions but I would say yes. But I'd like to explain.
Hugo L. Black: I'm -- but the reason I'm asking you is because the rule says --
Theodore George Gilinsky: Well, that's what I was going to explain.
Hugo L. Black: -- (Voice Overlap) judge to take the appeal first.
Theodore George Gilinsky: That's right. Well, I was going to explain your --
Hugo L. Black: So you'd be much better off without a lawyer, wouldn't you?
Theodore George Gilinsky: That's right. What -- what you're saying is that maybe the -- the rule should be changed so that everybody has to take appeals within 10 days whether they got a lawyer or not. And -- and in other words, if you -- if you stand before the bench and you have no lawyer and you -- and you are sentenced. The judge then is required to ask you, "Do you want to take an appeal?" And if you say yes --
Hugo L. Black: But if the lawyer -- but if --
Theodore George Gilinsky: -- he tells the clerk.
Hugo L. Black: -- he does have a lawyer and he suggests it, then he's out of luck.
Theodore George Gilinsky: Well, I don't think it's -- well, yes and no.
Hugo L. Black: (Voice Overlap) --
Theodore George Gilinsky: I -- I don't think that --
Hugo L. Black: -- he can't get his constitutional question decided.
Theodore George Gilinsky: Well, I'm not sure that we're -- we're talking about the same thing. We're talking about a constitutional question. Now, let me --
Hugo L. Black: Well, isn't there a constitutional question involved in this one?
Theodore George Gilinsky: Well, I -- we'd have to -- well, it's not as plausible -- possible but it -- it's -- it's not -- I mean, I suppose in any -- any time you say you have a search and seizure case, you have a constitutional question. I mean if you want to take this broad view, you -- you have a question. But if you go to the facts of this case, I don't believe you have a --
Hugo L. Black: You may -- may be at a lose if you had a (Voice Overlap) --
Theodore George Gilinsky: Well, no, I don't -- not only lose. I don't think that -- I'm not sure that this is -- comes even close to being the kind of fundamental error that the Court would consider even on a collateral attack. But as I say, you have to get to the facts on this.
Hugo L. Black: You mean -- you mean -- suppose the record shows clearly that he had been denied his rights under the Fourth Amendment, do you think he could it attack collaterally?
Theodore George Gilinsky: Oh, yes.
Hugo L. Black: Because of his lawyer's mistake here?
Theodore George Gilinsky: Yes.
Hugo L. Black: You do?
Theodore George Gilinsky: Yes.
Hugo L. Black: How?
Theodore George Gilinsky: Well, you -- you --
Hugo L. Black: And I hate to (Voice Overlap) --
Theodore George Gilinsky: -- pose the question -- you pose the question of a -- of a clear violation of a constitution. I would assume if you have a clear violation, yes, you can always attack. As a matter of fact, 2255 in Title 28 says that you can raise -- it says in so many words, constitutional issue. I mean, we can't -- I can't argue that -- against that.
Hugo L. Black: Well, when -- when we get through, if we dismissed that then, I will presume, this man could still raise the 2255 question.
Theodore George Gilinsky: I -- there is no -- there is no doubt in my mind. There's never been any doubt in the Government's mind in our brief that we -- we suggest -- we'd said this that if that -- there are a number of remedies for the --
William J. Brennan, Jr.: So, Mr. Gilinsky, if that should happen, then I take it -- and the Government interposed -- well, he didn't take an appeal, then, the (Inaudible) problem would arise, wouldn't it, this 2255, whether or not he's fairly to take an appeal, denies them as it would not, perhaps, in a review of the state proceeding in a federal habeas corpus, the review of this constitutional question.
Theodore George Gilinsky: I -- we've had -- we've had the problem of people who have not taken appeals where constitutional issues are involved. Actually, I -- I think the answer gets down to this that it really doesn't make any difference whether you've taken an appeal even. If you really have -- in other words, what I'm saying is this, if you really have the issue --
William J. Brennan, Jr.: Even though you never attempted to face the issue.
Theodore George Gilinsky: That -- regardless of -- if you -- even if you'd taken an appeal, you could still go back, that's what I'm saying and even if it hadn't been raised on appeal. So certainly, if -- if that's the case, then the question of whether the appeal was denied certainly can't change this status.
Arthur J. Goldberg: (Inaudible)
Theodore George Gilinsky: Oh, this --
Arthur J. Goldberg: Could you tell me about this.
Theodore George Gilinsky: Yes, I will.
Arthur J. Goldberg: (Inaudible)
Theodore George Gilinsky: Yes.
Arthur J. Goldberg: (Inaudible)
Theodore George Gilinsky: Yes. I -- well, this -- this is a civil lien. And it -- it really isn't involved in this case but -- well, let's say, in -- in your jurisdiction in Chicago, for example, they had a number of places. You had attorn, titles, and you have title companies, in some places you have dockets for types -- other types of title. Those people who have judgments of money value against them, in order to docket it as a lien, it has to be docketed in a special book so that it will be picked by abstractors who -- a house or something like that or if somebody wants to check your credit or something like that, I suppose they could it. But this has -- and this is done usually and not in a federal -- this has nothing to do with a federal clerk's office or anything else because the problems of liens are usually -- are controlled by this county or state organization. So what happens is that when you have a -- a case where a fine is entered or it happens a number of times in -- all liquor violations you get fines of this type of thing, that's done as a -- or tax cases is automatic. They do this all the time. They take the tax judgments over and enter them as a lien. Now, that judgment, that lien entry, judgment as a lien, has absolutely no bearing on -- on the question here. In other words, the entry of a judgment somewhere else to perfect a civil lien and I would assume that this judgment would be good as far as a criminal is concerned even if this entry had never been made, has absolutely nothing to do with a question of taking a criminal appeal.
Arthur J. Goldberg: (Inaudible)
Theodore George Gilinsky: It's on -- this is the original one. And that's always done. I mean that's where the clerk stands right on. You can find out --
Speaker: (Inaudible)
Theodore George Gilinsky: Pardon me?
Speaker: (Inaudible)
Theodore George Gilinsky: Robinson flatly controls the first issue in this case. And the second issue which is the question of going back and getting a new judgment, I think is -- is directly contrary to the -- the rule which says that District Judge may not enlarge the time because to allow this sort of thing would as in this case. He got a -- a month and a half.
Arthur J. Goldberg: What about the (Inaudible)?
Theodore George Gilinsky: Well, I don't doubt that if there's something wrong with the resentence, he has a right to appeal from that and we say so but that does not open up, that does not open up the whole conviction on -- or the whole or the original judgment for appellate review.
Arthur J. Goldberg: (Inaudible)
Theodore George Gilinsky: Well, I --
Arthur J. Goldberg: (Inaudible)
Theodore George Gilinsky: I -- I only -- I only concede he is right if he has a question relating to the second -- to the reduction but when you realize that he asked for a day or two and he got four months, he is hardly in a position to -- to make any serious argument about the reduction and it's purely discretionary with the judge. I don't know what he --
Speaker: (Inaudible)
Theodore George Gilinsky: Well, the Government should have possibly because we should have made this kind of argument. But I don't believe that this opens up the right to appeal.
Speaker: (Voice Overlap) --
Theodore George Gilinsky: We've this whole series of cases as a matter of fact and we cite them in our brief where people have used all types of devices to reenter something to get started again just because of this type of thing.
Arthur J. Goldberg: (Inaudible)
Theodore George Gilinsky: Well, this -- that's what this case -- this judge did.
Arthur J. Goldberg: (Inaudible)
Theodore George Gilinsky: No.
Arthur J. Goldberg: (Inaudible)
Theodore George Gilinsky: We -- we've had judges -- we've cited cases where judges have deliberately reentered orders or reentered something in order to give -- but I can't see that that would make any difference really what you do. I mean if the whole purpose -- here, the judge is deliberately enlarging the man's time to take an appeal. The rule -- I think in unmistakable terms, says, that the judge may not enlarge the time for taking an appeal because otherwise -- you see there're two sides to the coin. And the fact -- and if you're going to allow the judge to enlarge it, you -- you're also going to allow him the withhold it. And this is the kind of thing that we've tried to avoid in the -- in the whole setup of criminal rules that -- that it shouldn't be a matter that you just go in and have to ask leave of the judge to take an appeal. You have 10 days and you take it. It isn't something he can give you and it isn't something he can take away from you. And in effect, that is what petitioner is asking for in that -- in that regard.
Arthur J. Goldberg: What was the nature of the (Inaudible) --
Theodore George Gilinsky: Oh, I think it's fairly obvious what they -- what had happened. The United States Government filed a motion -- have filed an affidavit -- we had to file a motion to dismiss because it doesn't -- Court of Appeals doesn't know what happened unless we file a motion to dismiss. If you see our motion to dismiss, you will see that we outlined what had happened previously. And immediately, the -- and filed the evidence, second panel, a different panel of the Court of Appeals, they could see that what this was, it was an attempt to take a second appeal. If -- if -- let me --
Arthur J. Goldberg: (Inaudible)
Theodore George Gilinsky: If --
Speaker: (Inaudible)
Theodore George Gilinsky: Well, let me put this case.
Speaker: (Inaudible)
Theodore George Gilinsky: It's lack of jurisdiction of the original conviction.
Speaker: (Inaudible)
Theodore George Gilinsky: If --
Speaker: (Inaudible)
Theodore George Gilinsky: Yes.
Speaker: (Inaudible)
Theodore George Gilinsky: If what you are posing had been the case, in other words, if there was some error in the reduction process that could be appealed, certainly, it would have been incumbent upon the petitioner to say something about that and he didn't say anything about that when he filed his affidavit. He just recited again his excuses for not taking the original appeal. So that I think the Court of Appeals was -- was well-advised to dismiss the -- the second one. The petitioner argued that -- I should mention the things it covered in the brief. One is this problem of Saturday in New York courts. Of course, it depends upon which New York court you look to, I suppose because some New York courts are open all the time, Saturdays and Sundays. So that if you -- if you start to adopt some type of procedure related to local practice, I think we would have a hodgepodge of taking appeals. The problem of full days -- I'd also do not think is in this case because the rule certainly contemplate that even Saturdays and Sundays in the middle of the period are to be counted, he is not merely entitled to 10 full business days. The question of half a day was also recognized by the rules because the rule specifically stated that a half a day should be counted as a full day. In any event, let me say this that if this petitioner had made any real effort to file this notice of appeal on Saturday --
Hugo L. Black: You mean of his lawyer?
Theodore George Gilinsky: His lawyer or the petitioner, that's not unusual, Mr. Justice Black. In cases where defendants are out on bail for them to be constantly calling their lawyer about -- about notices of appeal, this is rather common and it's -- it's common all the way through in criminal cases.
Hugo L. Black: Well, the rule certainly did try to take some precaution to see that a defendant --
Theodore George Gilinsky: Yes, they did.
Hugo L. Black: -- would not lose his right of appeal because of his ignorance, isn't it?
Theodore George Gilinsky: That's correct. So, that have -- and I would say something further about Saturdays. As a matter of policy, it might be wise to eliminate Saturdays in the proposed amendments to the criminal rules aren't going to eliminate Saturday from a period of computation just as it's been eliminated in the civil cases. But we think that thing should be handled -- it's going to be handled that way of -- by the regular rule making process. Well, the second issue I -- as I --
William J. Brennan, Jr.: I gather -- and I gather your argument, do you suggest (Inaudible)?
Theodore George Gilinsky: Oh, I think so. As a -- he can raise it that way or he can raise it under Rule 35 if he has grounds for that --
William J. Brennan, Jr.: (Inaudible)
Theodore George Gilinsky: -- or he can --
William J. Brennan, Jr.: (Inaudible)
Theodore George Gilinsky: We've never -- we've never felt he could but --
William J. Brennan, Jr.: (Inaudible)
Theodore George Gilinsky: -- some -- sometimes --
William J. Brennan, Jr.: -- if we didn't.
Theodore George Gilinsky: Either way if it comes up.
William J. Brennan, Jr.: You mean Rule 35 has been treated as a 2255 to whatever happens (Inaudible)
Theodore George Gilinsky: Right.
William J. Brennan, Jr.: (Inaudible)
Theodore George Gilinsky: That's correct. Or even coram nobis if we -- if it has to go back.
Tom C. Clark: (Inaudible)
Theodore George Gilinsky: Well, not as yet.
Tom C. Clark: I mean in the last day on the motion to appeal? (Inaudible)
Theodore George Gilinsky: Well, if -- no. What he asked for in his motion was a reduction of -- he asked for a number of things in relief to the District Judge. He asked that his sentence be reduced. He asked that if that not be so that he'd be allowed an extended period of time before he started to serve his sentence, in other words, time to adjust his affairs. This is the type of relief that he asked for at the time of the motion under Rule 35. He didn't -- he didn't ask for a new trial or something like that in the sense of --
Tom C. Clark: Go to the merits.
Theodore George Gilinsky: Go to the merits because -- well, some of the merits, of course, are bound to come out every time you -- you start talking about it but I don't think that they were primarily there. And certainly, if -- if that's what he meant, I think he could've made himself a little more clear as to -- that he didn't -- in other words, if he -- what he really meant, instead of Rule 35 reduction, was that I want to attack my conviction now collaterally. I think, at least saying something like that would've alerted the -- the judge to the problem that he was presenting but I don't think you'll find that in this motion at all or in these papers that he filed at that time. So that we feel that this would fly in the face of all the rules of -- that -- on the time and unlike the civil cases by the way which this Court has had recently, there was absolutely nothing done here during this period, so that what -- what happens is you really have to revive it. Now, the last point that I would like to make is that we think this is evaluation for committee of rules and the question whether to extend times, whether to give everybody appeals maybe within 10 days, cut the whole thing off --
William J. Brennan, Jr.: Do you know when this (Inaudible)
Theodore George Gilinsky: There are -- yes. There is one and there's no question that this consideration of Saturday, that's all that had been printed by the proposed -- and we cite that in our brief. The appellate rules are under another Advisory Committee and their treating of the whole may have not published any affairs but you can see in the articles that this problem is under consideration. In some, we think that the petitioner is proposing a series of strained and technical interpretations to -- would create just a hodgepodge in -- in the manner of taking appeals which we think are rather simple. And to throw out these rules and standards, would really turn us back to where we were over 30 years ago when you used to have to ask, leave to appeal and when you used to take periods of time and extend them beyond. And we think all of this was done away with when they started the new civil rules. And we respectfully submit that both dismissals should be affirmed.
Earl Warren: Mr. Polak, you have one minute, I think, according to the time, if you wish to use it.
Bernard B. Polak: First of all, I would like to call the attention of the Court to Folios 640 through 646 of the printed transcript of record in which the consideration of the defendant's desire to again appeal was raised orally upon the return of the motion and was discussed between the Court and counsel for both sides to eliminate any doubt as to that particular point. We did not get it into the motion papers.The motion was a several pronged motion. There were other problems affecting the defendant, namely the prospect of immediate surrender which would have involved losses of hundreds of thousands of dollars to his creditors and to his family.
Tom C. Clark: What page is that?
Bernard B. Polak: Pages 83 and 84. If I may just have a word, it is --
Earl Warren: You -- you may. You may just -- go ahead.
Bernard B. Polak: It is our contention that with the second appeal, that in as much as it is a judgment of the District Court that the defendant contending that the illegal search and seizure was an element that entered into judgment even though it was a reduced sentence and a reduced fine. Still, it was a judgment of the District Court. The defendant complains of constitutional error that entered to it and therefore, he should be permitted to at least raise the point of constitutional error --
William J. Brennan, Jr.: What if he didn't?
Bernard B. Polak: -- in the opinion.
William J. Brennan, Jr.: (Inaudible)
Bernard B. Polak: It --
William J. Brennan, Jr.: (Inaudible)
Bernard B. Polak: It permits us to raise the point on one proceeding, the appeal in the Court of Appeals rather than to have to go down stairs all the way again and start going up.
William J. Brennan, Jr.: That's the only difference, isn't it?
Bernard B. Polak: That is the only difference, a matter of judicial economy.
Earl Warren: Very well. We'll adjourn.


George H. Mitchell: Mr. Chief Justice, may it please the Court. First of all and I'd like to say that I don't want to give the impression that I'm attempting to read something into the statute that does not exist. I agree fully with the holding in the Graham case that the proceedings under the statute are for identification only and I know of no reported cases in West Virginia where the question was raised as to whether defense, especially the one suggested by Mr. Chief Justice Warren, if interposed whether it should be considered or not at the hearing. I know of no reported case that says it should be considered.
William O. Douglas: Suppose the -- the man who's up under the statute has been convicted, say three times, and one of those times or two of those times or three of those times, he did not have a, say lawyer, as our decision in Betts and Brady requires in certain, at least in certain types of cases, would that be triable on this -- under the statute?
George H. Mitchell: As I just stated, I know of -- Mr. Justice Douglas, I know of no cases, reported cases in West Virginia where they have allowed a defense where the --
William O. Douglas: (Voice Overlap) --
George H. Mitchell: -- defense was interposed --
William O. Douglas: Yes.
George H. Mitchell: -- and it was tried --
William O. Douglas: Suppose this, and suppose you were there representing the state and Mr. Ginsburg was there representing this man and Mr. Ginsburg steps forward and offers that in proof. Would you object or would you say this is triable? If those four -- those prior three convictions were all voidable or unconstitutional or whatever you want to call them could be attacked say by habeas corpus because of the deprivation of a constitutional right, would you say that they nevertheless would be foreclosed that this man could go to prison for life on the basis of three judgments in which he had no lawyer, no one to defend him and constitutionally was entitled to a lawyer in those three cases or in one of those three cases or in two of those three cases. I realize that isn't quite this case but I kind of get your idea of what this statute does and does not do.
George H. Mitchell: Well, under the statute, I think it's limited to a question of identification only but as I have stated before, in practice, it's possible that the judge in order to determine whether or not the conviction was proper, it might here.
Earl Warren: As I understand it, under the statute (Inaudible) controversy under the insinuation, surely he's entitled to know the issue, who will decide it under the facts you say (Inaudible) -- making sure they decide that question or (Inaudible)?
George H. Mitchell: The jury would decide. They would decide whether -- well, they're only entitled under the statute to decide whether he is the person named in the information.
Earl Warren: Yes.
George H. Mitchell: That's all.
Earl Warren: I recognized and I suppose in addition to that, the range of decisions that you say can be raised according to the (Inaudible) by the highest court. Suppose it was an issue to identity and he raise the question of (Inaudible) in the statute to be raised only before a jury and would he (Inaudible) be limited only to the identity.
George H. Mitchell: It would be a question of admissibility for the judge and I would think that under the statutory proceeding, it would not be a question for the jury if he -- it could raise the question on a writ of error if he denied the right to interpose this defense but it is my firm belief that in accord with the Graham case that only those questions that go to the identification of the prisoner are the ones that make it to the jury.
Earl Warren: What in fact was (Inaudible) is whether we can assume that the wrong in West Virginia is that a man in this situation, (Inaudible) is limited to the question of identity.
George H. Mitchell: I think --
Earl Warren: How do you want us (Inaudible)? How do you want us to deal with your law of West Virginia? Did he (Inaudible) to contesting identity or his (Inaudible) in some matter or form the opportunity raised in the defense?
George H. Mitchell: At this particular proceeding, it is my thought and I think that the law of West Virginia is that this limits to the question of identification.
Tom C. Clark: (Inaudible)
George H. Mitchell: Under the statute, Mr. Justice, if he says that he is not the person, then it's incumbent upon the state to put on evidence to the effect that he is (Inaudible).
Tom C. Clark: They tried it on the merits.
George H. Mitchell: Yes.
Tom C. Clark: (Inaudible)
Hugo L. Black: (Inaudible)
George H. Mitchell: I think then we'd come on the writ of error.
Speaker: You mean here?
George H. Mitchell: Yes. I don't think he could raise them at this particular proceeding.
Speaker: How could he raise (Inaudible) error in the record to support it? It seems to be like Frank Murphy dissented.
George H. Mitchell: Well --
Earl Warren: I'm talking about the evidence before the Court whether (Inaudible)?
Speaker: And that man (Inaudible)?
George H. Mitchell: The cases that we've been confronted with have come up on the writ of -- applications for writ of habeas corpus whether this -- where there was any question as to whether or not the conviction was one that was sustained the additional punishment under the habitual criminal act.
Speaker: (Inaudible)
Earl Warren: Very well.
George H. Mitchell: I see this.
Tom C. Clark: (Inaudible)
George H. Mitchell: That's true. I stated that Your Honor and I also stated that --
Tom C. Clark: (Inaudible)
George H. Mitchell: According to the -- our reported cases, the only question that can be raised at this proceeding is the question of identification.
Felix Frankfurter: Then you agree to (Inaudible) that what he is challenging (Inaudible) I think is constitutionality of the statute namely (Inaudible)
George H. Mitchell: Well, the Circuit Court sir.
Felix Frankfurter: (Inaudible)
George H. Mitchell: That's right sir. As it had been pointed out by counsel for the petitioners, they say first that they were deprived of due process of law because they were not given notice that an information would be presented setting forth a prior felony conviction. Our Supreme Court of Appeals has held in State against Blankenship, a 1952 case reported in 137 West Virginia, page 1, that in as much as a procedures set forth in the statute does not constitute a trial of prior offenses, no notice is required before presenting the bill of information to the Court. As I understand due process, the primary purpose of affording a defendant notice is to inform him of the charge against him, and to give him a reasonable time in which to prepare his defense. And it is our contention that such a reason for notice does not exist in this type of cases wherein we are concerned with the application of the habitual criminal act because this is not an information of an offense for which a trial has to be had, but is an information to ascertain the fact that is namely that the prisoner has already been previously convicted of offenses and this fact must appear either by his own confession or by a verdict of a jury before he can be sentenced to the additional punishment prescribed in the statute. He's not sentenced for an offense distinct from the one from which he has been tried, but the only question is whether he is such a person as ought to be sentenced to the additional punishment and in that relation, we compare with the finding in the Graham case wherein we say that the proceedings under the statutes are for identification only. They are clearly not for the establishment of guilt. The question of guilt does not reopen at all in this type of proceeding.
Earl Warren: That mainly proceeds on the assumption that the -- in the State of West Virginia (Inaudible)?
George H. Mitchell: We would like to show that no formal notice was such is given for trial.
Earl Warren: I beg your pardon?
George H. Mitchell: There's no formal notice such as a notice that is given for the trial, but we would like to show that the prisoner, the petitioners were amply notified that they were being proceeded against as habitual offenders under our statute.
Earl Warren: But aren't the facts that you rely on different to those outlined by Mr. Ginsburg?
George H. Mitchell: No, the facts was -- there's no dispute as to the facts.
Earl Warren: I beg your pardon?
George H. Mitchell: There's no dispute as to the facts of the case.
Charles E. Whittaker: What do you mean then if I may ask by saying he would like to show that these men were given notice that they were to be informed on under this (Inaudible)
George H. Mitchell: What I think I said Mr. Justice Whittaker is that they were amply notified that they were being proceeded against as habitual offenders.
Charles E. Whittaker: By the information?
George H. Mitchell: Yes.
Charles E. Whittaker: What do you say for Mr. Ginsburg (Inaudible) notice in the facts of their plea in the principle of a criminal case?
George H. Mitchell: It is not so absurd that in this type of proceeding, due process does not require that notice be given in the same form as in a trial of a case. In relation to Mr. Ginsburg's position there that notice should perhaps be given prior to the trial of the case, I don't see how it would be feasible. Under our statute, it says after conviction, immediately after conviction, and before sentencing, the prosecuting attorney must file an information setting forth the previous convictions. To give him notice that he would be almost assumed that he would be found guilty, he'd be convicted, but the statute anticipates a proceeding after conviction and before sentence.
Felix Frankfurter: But you wouldn't (Inaudible) even into these case (Inaudible) --
George H. Mitchell: Their procedure sir?
Felix Frankfurter: Let me think about it, (Inaudible), I can assume here (Inaudible) what happens in this case, the district attorney having seen the information, soon after the conviction (Inaudible) --
George H. Mitchell: No sir, no Your Honor.
Felix Frankfurter: That would've been this case.
George H. Mitchell: No, Your Honor.
Felix Frankfurter: (Inaudible) the case here, (Inaudible) rather what was done, it was made (Inaudible) but there they are, the accused and his lawyer and the judge (Inaudible). The judge asks him, do you understand it? He says he does (Inaudible), that's all I ever asked. (Inaudible) anything after the act you need to say (Inaudible) -- whether that court decision tends to be (Inaudible) --
George H. Mitchell: It is our position that it does not. That -- this was --
Felix Frankfurter: And from your (Inaudible) that issue was not all over you, you must have had known, this is on the (Inaudible) a question of fact whether he was (Inaudible), that's all in the trial, and not to assume what (Inaudible) on the basis of (Inaudible).
George H. Mitchell: That's true sir.
Felix Frankfurter: (Inaudible)
John M. Harlan II: Could the judge have granted an application? Did he have power to grant an application had it been made for an adjournment, the defendant having permitted his identity?
George H. Mitchell: A contingence could be had if it did not extend beyond the term. The statute says that this information must be filed after verdict, before sentence and within term, within the same term of court. That's perhaps one of the reasons why they have a statute that gives the same authority to the warden. If a prisoner comes there and has not been sentenced under the habitual criminal act in the trial court, he may file an information setting forth his previous convictions.
Charles E. Whittaker: But that statute would be void, would it not if Mr. Ginsburg is right in his contention that there must be notice given to this man of the intention to proceed against him under this habitual offender statute before the information or indictment is returned?
George H. Mitchell: Yes it would be void too. It will be also if this particular statute as we are discussing now would be considered that would be determined to be unconstitutional as like in a notice.
Earl Warren: What could -- would the -- what could (Inaudible) if a man said yes, I am the person but those convictions have been wiped out (Inaudible). What could you say (Inaudible) a continuance as long this wasn't beyond the term. What would you then -- what could be the continuance assuming the -- if he finds the man but he had other defenses to the charge.
George H. Mitchell: Well it wouldn't do him any good if the question was any other than -- any other than the question of whether or not he's the same person.
Earl Warren: But could I also get back to the (Inaudible)?
George H. Mitchell: In both of these cases as the records reveal that prisoners upon being informed of their prior convictions were given the opportunity to say whether they were the same person named in the information and they were duly cautioned as to the effect of admitting their identity, nevertheless, both readily admitted that they were the same persons and were consequently sentenced to life imprisonment under the statute. In discussing this matter of notice the petitioners in their brief and in the argument have relied heavily on decisions from Tennessee and from the Third Circuit, in the court -- in the case Rhea against Edwards, a Tennessee case, which mention was made in our brief on page 6, the Court there held that since the Tennessee Habitual Criminal Act as interpreted by the Tennessee Supreme Court did not require that notice before trial be given a defendant who is to be sentenced under the act has violated the due process. Now those cases can be readily distinguished from the cases now before this Court. As pointed out in our brief and under the Tennessee statute that was in effect at that time it states that when a habitual criminal as defined in Section 1 of this Act, as charged by presentment on indictment by the commission of several enumerated felonies, he may also be charged in this same indictment with being a habitual criminal as defined in Section 1 or he may be charged only with the commission of such felony but in either case shall upon conviction be sentenced and punished as a habitual criminal. Under Tennessee statute, it was possible as it happened in the McCummings cited in our brief, it is possible for a prisoner to go to trial and then the district attorney announced at the trial that he was going -- he is -- in addition to being tried for a specified felony, that he would also be tried as a habitual criminal. Now under the West Virginia statute that's not possible. Our proceeding is a separate proceeding and there's no question, once the information is filed as to what the proceeding is about that the offender is to be punished if he is found to be the same person named in the information as a habitual offender. In the Pennsylvania case cited by the petitioner, Collins against Claudy, a situation existed there that could not exist in our statute. In that particular case, Collins had been indicted for breaking and entering a store and stealing certain sum of money. He pleaded guilty and was sentenced to a term from five to 20 years. His sentenced reheard. The court sentenced a rehearing that it was pursuant to the act of assembly approved April 29th, 1929. This was a reference to the Pennsylvania habitual criminal act. At no point -- no stage during the proceeding that Collins knew that he was being dealt with as an habitual offender. That cannot happen once again as I pointed out because on our statute, the ascertainment whether or not the prisoner here is a habitual offender. It is done in a separate proceeding and is not done along with the trial shall we say. Under the Tennessee statute that was in effect then, he was tried at the same time for being a habitual criminal and for the felony that he had committed and the jury, the same jury that tried him for the offense determined whether or not he was a habitual criminal. That cannot happen under the West Virginia statute. We say that those holdings are distinguishable from the cases now before this Court for that reason because I thought that the West Virginia procedure provides to a defendant ample notice that he is being dealt with as a second or third offender as the case may be and he has opportunity, sufficient opportunity to contest his identity as to whether or not he is that person.
John M. Harlan II: What do you -- what do you think, assuming you are right for the moment that notice is not required beyond what was given here in both of these cases, what do you say as to the effect of that procedure on the question of inducing pleas of guilty by people who have before them the prospect of the recidivist charge which they know about but which the state did does not notify them about therefore they plea in order to hopefully presumably avoid the possibility of a recidivist charge and they turn out to be wrong?
George H. Mitchell: Mr. Justice Harlan that has been referred to by Mr. Ginsburg in connection with Mr. Brown's article, they call it, bargain justice.
John M. Harlan II: Well, it's just a question of bargain and maybe no negotiations at all. The man knows he's possibly faced with such a charge. He hopes that the state doesn't know about it. He therefore pleads guilty. He had the notice and he knew that he's going to be charged anyway he might not be in trial.
George H. Mitchell: Well, I really think that the -- is the question that the prisoners make and his attorney must make. I don't think that that should enter too much into whether or not this procedure here is proper or can be sustained. Maybe I don't have your question correctly.
John M. Harlan II: I see you might have some bearing as to whether due process does or does not requiring of it. If the absence of the kind of notice that Mr. Ginsburg is arguing for might produce the kind of result I've indicated. I don't know whether it's true or not.
George H. Mitchell: Well if he entered a plea of not guilty and the jury still found him guilty, he would be subjected to -- to the same type of punishment the additional penalty.
Charles E. Whittaker: Well could this scheme -- could this scheme was that he did have in mind what Mr. Justice Harlan has just averted to? If this Section 4 of Article VIII Section -- Chapter 62 is a valid statute as set -- one set forth in petitioner's brief at page 38 that gives the warden a right to (Inaudible) to advise the Court to -- that the government prosecutor could leave -- file information to proceed against him? Do I make it clear? Do you understand me?
George H. Mitchell: Are you asking that should he not be sentenced as a habitual criminal in the lower court, in the trial court, could he not when he enters the penitentiary still be proceeded against?
Charles E. Whittaker: (Inaudible) Mr. Justice Harlan presupposes that one charge with the principal offense in your courts knowing of his own background but that the prosecutor thought that doesn't know of it, will plead guilty in the hope that he will just be given a single sentence not taking into account his past act -- sentences. Well could that scheme ever work fine if the statute I'm referring to that sets forth on page 38 at Mr. Ginsburg's brief is a valid statute?
George H. Mitchell: It would not necessarily work because he could be proceeded against after entering the penitentiary. It's discretionary with the warden under the statute as to whether or not he wishes to file this information.
Earl Warren: Mr. Mitchell, if they sentence this man for (Inaudible) and file this information, (Inaudible) and if he does not do so in 90% of the cases that is (Inaudible), but if the 10% of the cases in which the information is violative after the (Inaudible) cases where the man said he was not guilty and in fact the (Inaudible) guilty were so charged with that information. Would you not (Inaudible)?
George H. Mitchell: If those were the facts, it's possible that you would have --
Earl Warren: What are the facts?
George H. Mitchell: The -- in these two cases now before us, the petitioners had not been able to show that intentional and purposeful discrimination. They cannot get -- they cannot get themselves into the class that you are describing or the class that Yick Wo was in because that was based on race. Chinese, Yick Wo is Chinese and you have a -- in your example all the people who were sentenced were those who pleaded not guilty and were tried under but our petitioners here cannot get themselves into that class. They cannot show the intention or -- and purpose for discrimination necessary to show an evasion of the equal protection.
Earl Warren: (Inaudible) Yick Wo is not also those who claimed he's not guilty and put the stake the (Inaudible), isn't that an arbitrary classification?
George H. Mitchell: That could be that -- if they could show that but then the two --
Earl Warren: (Inaudible)
George H. Mitchell: Yes, yes.
Earl Warren: (Inaudible) -- assume that is the finding and (Inaudible) --
George H. Mitchell: I don't think Mr. Ginsburg -- I don't know, maybe he can guess.
Earl Warren: (Inaudible) -- if it did -- if the record did show, there were a mass of cases where --
George H. Mitchell: You would have a -- that type of case that -- but then these -- in these two particular cases, one had a trial and one pleaded guilty --
Earl Warren: (Inaudible)
George H. Mitchell: Both -- yes. But if you could find that basis for a class, you would have that again --
Earl Warren: (Inaudible) -- I probably have in mind some other cases we have in West Virginia where that (Inaudible) plead not guilty but the fact that we -- all and the others are permitted to serve their clients (Inaudible) charge filed against them.
George H. Mitchell: I don't think they'd be able to substantiate that but were it true, I think you could find that basis for classification.
Earl Warren: (Inaudible)
George H. Mitchell: No, it did not sir. Along with the question raised by Mr. Chief Justice, the petitioners contend in their brief and in their petition that they were denied equal protection of the laws and equal justice by the state of West Virginia because the state's habitual criminal law was being administered by an unequal hand and has been stated here this morning, in support of this allegation, the petitioner's quote extensively from several studies made of the West Virginia habitual law -- habitual criminal law with special emphasis being placed on those facts that tend to indicate that it's somewhat being applied in a discriminatory manner. Now, we are not certain how accurate the surveys are but we are -- and we do say that the allegations contained in the two petitions then before this Court insufficient in showing the purposeful and intentional discrimination necessary and essential to show an invasion of the constitutional right to the equal protection of the law. They do not -- they cannot put themselves in a class as the certain group of people being discriminated against.
Felix Frankfurter: (Inaudible)
George H. Mitchell: To my knowledge there has been -- a bill was introduced in the legislature following them instead but not by the committee, it was not a committee-drawn bill.
Felix Frankfurter: (Inaudible)
George H. Mitchell: No, they did not sir. A bill was introduced but it was not by -- they're committed by one of the delegates and did not pass.
Felix Frankfurter: (Inaudible)
George H. Mitchell: That's right.
Felix Frankfurter: (Inaudible)
George H. Mitchell: Not to my knowledge. There have been no published reports following that study, commenting on one way or the other officially.
Felix Frankfurter: (Inaudible)
George H. Mitchell: I'm not able to say exactly but it's my understanding that it resulted from -- for someone risks to being shown among the prisoners as to the manner in which the law was being applied.
Felix Frankfurter: (Inaudible)
George H. Mitchell: Someone risks or --
Felix Frankfurter: (Inaudible)
George H. Mitchell: But it --
Felix Frankfurter: (Inaudible)
George H. Mitchell: But that's as far as it's got. It was then before (Inaudible).
Felix Frankfurter: (Inaudible)
George H. Mitchell: It was to make it discretionary as I recall it. See, it's now mandatory with the prosecuting attorney.
Felix Frankfurter: (Inaudible)
George H. Mitchell: No, they cannot, sir.
Earl Warren: (Inaudible) require the district attorney to file the information (Inaudible) after a hearing whether the man is to be treated as a habitual criminal or not.
George H. Mitchell: I think that would help considerably. As I state it's nothing been officially -- no official view has been taken since this study. No one has shown any real interest in amending the act or changing it.
Felix Frankfurter: (Inaudible)
George H. Mitchell: 22.
Felix Frankfurter: (Inaudible)
George H. Mitchell: They all have criminal jurisdiction but in several --
Felix Frankfurter: You mean, all of the --
George H. Mitchell: -- several of larger counties there in jury courts who handle only, statutory courts -- of courts who only -- who handle only criminal cases. That's in some --
Felix Frankfurter: (Inaudible)
George H. Mitchell: He's on appeal that -- there's a (Inaudible) in the larger -- in the larger counties, they may have separate courts who have inferior courts, who handle only the criminal cases.
Felix Frankfurter: How many judges in West Virginia in number, how many judges exactly (Inaudible)?
George H. Mitchell: Well all the judges who preside over these courts.
Felix Frankfurter: 20?
George H. Mitchell: Yes, 20 or 30.
Felix Frankfurter: 20 or 30.
George H. Mitchell: And then there are inferior courts who -- they have the power to decide.–
Felix Frankfurter: (Inaudible)
George H. Mitchell: Yes, they did.
Felix Frankfurter: (Inaudible) have the same view regarding (Inaudible) whether its is long distance or short distance (Inaudible) --
George H. Mitchell: No, I don't think they all have the same views.
Felix Frankfurter: (Inaudible)
George H. Mitchell: That's right.
Felix Frankfurter: (Inaudible)
George H. Mitchell: That's possible.
Earl Warren: (Inaudible)
George H. Mitchell: That's true.
Earl Warren: Usually decided by judge and not by a district attorney who filed one information out of 11 which were the facts (Inaudible).
George H. Mitchell: You would also run into this problem which exists now as far as the prosecuting attorneys are concerned, the statute says that if he has information, if he has knowledge --
Speaker: (Inaudible)
George H. Mitchell: -- you might run into this problem which we all -- which we have now. The statute says if he has knowledge of these previous convictions, he is, he shall file the information. Whether he has knowledge or not is often -- is often hard to determine. Sometimes he does not have it and most of the prosecuting attorneys cooperate with the Criminal Identification Bureau of the state police and they provide, they can provide them, if they have the information in this -- in previous offenses. Then too the requirement in the statute is that it must be done within term. If it so happens that you get some case near the end of the term, you may not have time to file the information, get the necessary information to file it.
Felix Frankfurter: (Inaudible)
George H. Mitchell: In the smaller counties, you will find that your prosecuting attorneys are may be very much part time and the police force -- well they have a very small space. As a matter of fact if one has to write us about getting enough money to have a station there or anything in his office. It depends on the size of the counties. More or less, in smaller counties, they do have a difficulty of making proper investigations and actually of devoting their time to the office.
Felix Frankfurter: (Inaudible)
George H. Mitchell: Whether he broke them, I don't recall exactly as to whether or not he broke them down to filing the information during in a year but he did break down the sentencing under our habitual criminal act.
Felix Frankfurter: (Inaudible)
George H. Mitchell: That may have been in the -- not in his article. It's probably in his research but it was not in his article.
Felix Frankfurter: (Inaudible)
George H. Mitchell: It was probably on file with the permission in this committee.
Felix Frankfurter: (Inaudible)
Earl Warren: (Inaudible)
George H. Mitchell: I will sir. That's -- whatever information is available to the -- that's filed with the committee, that's a --
Charles E. Whittaker: Mr. Mitchell, I would like to know how if an accused was brought before this Court and the prosecutor presented several certified copies of past convictions and sentences, but one or more of them appear obviously to be subject to collateral attack for one reason or another, how is this man ever to have a hearing on that aspect of the case under your law?
George H. Mitchell: Well, it's practically impossible under our interpretation of this particular proceeding.
Charles E. Whittaker: Would that mean he's got to go to prison for life just because you haven't got a procedure whereby you can show one or more judgments were void?
George H. Mitchell: Well habeas corpus that's the way it's been attacked now in the state by writ of habeas corpus.
Felix Frankfurter: (Inaudible)
George H. Mitchell: Both of them are.
Felix Frankfurter: Both?
George H. Mitchell: Yes.
Felix Frankfurter: (Inaudible)
George H. Mitchell: As to whether or not the judgment was void that's --
Felix Frankfurter: (Inaudible)
George H. Mitchell: That the judgment is void?
Felix Frankfurter: Any of the argument -- any of the judgments (Inaudible) --
George H. Mitchell: No, they are not raised in there.
Felix Frankfurter: (Inaudible)
Charles E. Whittaker: Well is it quite fair to say that not (Inaudible) -- doesn't Oyler say under his interpretation of the statute he wants to show that these sentences in Bedford County, Pennsylvania one being to prohibition and the other to small (Inaudible), were it not such as brings them within your recidivist statute. Doesn't he claim that?
George H. Mitchell: He claims as I guess that he was denied due process because he was not allowed to show that --
Charles E. Whittaker: Well --
George H. Mitchell: -- in the lower courts.
Charles E. Whittaker: -- this is habeas corpus case, nothing can be showed here, then where can he show?
George H. Mitchell: It is here in habeas corpus and he made his application in the Supreme --
Charles E. Whittaker: That (Inaudible) -- suppose it is (Inaudible) off the record for that purpose we have to assume, our present purposes it seems to me and we have to assume that is (Inaudible), do we not?
George H. Mitchell: Yes.
Charles E. Whittaker: (Inaudible) is he entitled to relief in a habeas corpus hearing?
George H. Mitchell: If the judgment is -- if the finding would render the judgment yes, or partially void.
Charles E. Whittaker: Well, if what he says is true, is there room to say that the judgment (Inaudible) judgments in Pennsylvania were void?
George H. Mitchell: Well, we will show that then, they were not, that they were in compliance with our statute. That the three felonies set forth in the indictment were of such a nature as were punishable as were crimes punishable by a confinement in the penitentiary and our court has interpreted the statute to mean regardless of where you serve the time if it was a crime punishable by confinement in the penitentiary was one, it was an offense sufficient to support and to sustain the application of the habitual criminal statute.
Charles E. Whittaker: One more question and I'm through. Now supposing he wants to put the matter before your highest court to reexamine that case, then doesn't he have to show us the facts which would bring him relief if the rule be changed now then he is entitled, wouldn't he?
George H. Mitchell: Yes, he would.
Charles E. Whittaker: Now that -- is he entitled under his averments here to that right, attempt to threaten to change that rule?
George H. Mitchell: I think he is Your Honor.
Charles E. Whittaker: Well, is he cut off from that if he is denied the right to put that (Inaudible)?
George H. Mitchell: You mean at the trial court?
Charles E. Whittaker: Yes.
George H. Mitchell: At the trial court level, as I stated before the question has never been decided if whether defenses as one as you are speaking of is interposed whether or not it would be error for the trial judge not to admit. Now it's being reached on habeas corpus with all the cases at which I have knowledge of. If there's any question as to validity of the previous convictions is now being reached by proceedings in habeas corpus.
Earl Warren: One question Mr. Mitchell, both of the petitioners did file a petition for writ of habeas corpus, did they not?
George H. Mitchell: That's right, sir.
Earl Warren: And they both had claimed (Inaudible), did they not?
George H. Mitchell: They did. They said that --
Earl Warren: They both -- and they both claim (Inaudible) deprived them of the opportunity to raise the defenses (Inaudible), did they not?
George H. Mitchell: That's what they said in the petition.
Earl Warren: That they would (Inaudible) denied the right of error, did they not?
George H. Mitchell: That's right sir.
Earl Warren: (Inaudible)
George H. Mitchell: Yes. They filed -- both filed petitions in the Supreme Court of Appeals, petitions for writs of habeas corpus in the Supreme Court of Appeals of West Virginia. The court reviewed the petitions and denied their applications without hearing and without an opinion.
Felix Frankfurter: What is your answer to (Inaudible) convicted of a crime (Inaudible)?
George H. Mitchell: I think our Supreme Court in reviewing these petitions examined the Pennsylvania statutes and they found that the offenses, the crimes therein described were crimes punishable by a confinement in the penitentiary hence Pennsylvania so selected to punish the petitioner in their manner. Larceny, according to the statute is a felony in Pennsylvania, that was a larceny of a $1250 car. Burglary was made a felony by the statute in Pennsylvania and he was convicted of both of those crimes and they are punishable under Pennsylvania statute by a confinement in the penitentiary. However, Pennsylvania has this other statute that allows certain youthful offenders to present to Camp Hill or whatever it is, an industrial school in Pennsylvania and they elected to send him there rather than to send him to the penitentiary. Our Supreme Court in the case already referred to him, State ex rel Johnson against Skeen, the warden has interpreted that to mean that the convictions are convictions for crimes punishable by sentence to the penitentiary and it doesn't --
Felix Frankfurter: Now suppose Pennsylvania and the statutory law passed an exclusive provision (Inaudible) --
George H. Mitchell: If it was a juvenile proceeding, that was a yes, they could've Your Honor.
Felix Frankfurter: (Inaudible)
George H. Mitchell: Juvenile proceeding --
Felix Frankfurter: This is not a (Inaudible) Superior Court, maybe one or the other (Inaudible) --
George H. Mitchell: That's right sir.
Felix Frankfurter: (Inaudible)
Earl Warren: (Inaudible) you say that your Supreme Court will look at the Pennsylvania statute and determine whether the crime (Inaudible) it was one punishable by (Inaudible) -- it was considered a recidivist in your city (Inaudible) as I understood. Is that what --
George H. Mitchell: This --
Earl Warren: -- your Supreme Court (Inaudible) -
George H. Mitchell: Well, this is what I meant Mr. Chief Justice. When these petitions were filed in the Supreme Court of Appeals for -- they were application for writs of habeas corpus in reviewing the petitions, the Court would -- to see whether they had probable cause to grant a hearing on them and I think from the review of them, they ascertained that these crimes of which -- that are set forth in his petition were crimes punishable by confinement in the penitentiary. Therefore, the writ will be denied because he had no grounds for it.
Earl Warren: How would that handle a case like this? (Inaudible) would your Supreme Court without any (Inaudible) refuse the answers on (Inaudible) --
George H. Mitchell: I think if -- in his petition, he set forth by affidavit the other evidence from the cause to believe that he was proceeded against or was being proceeded against unjustly that the court would grant him a hearing.
Earl Warren: Mr. Ginsburg.
David Ginsburg: I'd be very brief. Mr. Chief Justice, may it please the Court. Certain questions were asked which I may be able to answer, one having to do with the Brown study. The question was asked whether he had dealt with this problem of bargain justice and the two paragraphs which I regarded as relevant in this connection are quoted on page 21 of the petitioner's brief. Brown says that in view of these figures, the statistical data which contained in these records, the records before this Court, on these cases, it is to see why the few prisoners who have been sentenced for life imprisonment under our habitual criminal law feel that they have been discriminated against. This is one of the chief complaints against West Virginia's habitual criminal law. Of course, the reason the law was imposed in many cases was due to the fact that the person plead guilty to the present charge in consideration of the law not being imposed. Bargain justice enters the picture and the record doesn't show the whole picture insofar as the part played by the habitual criminal law in our system of criminal justice concerned. Question was asked regarding the nature of the statistical data whether it is broken down by county and so on. Those data are contained in the record in this case. In the Oyler case in pages 37, about 20 pages going on, they identify the prisoner, they identify the county, the number of prior convictions and the sentences which were imposed. There's a recapitulation by county on page 59 of the Oyler record. Question was further asked whether what action was taken by the state legislature. In the Oyler record on page 36, there is the statement, this document was offered to the state legislature in 1957 and one house voted 98 to 2 in favor of abolishing, amending or correcting the habitual criminal statute that the issue was not pursuant to a crime (Inaudible). I think --
Earl Warren: Mr. Ginsburg (Inaudible) indicate what was the (Inaudible) --
David Ginsburg: Not to my knowledge sir but perhaps in the data which the Attorney General's office will supply, we'll find the answer but in the published material there is no answer to that question as I've seen it. Reference was made to the case of Collins and Claudy, this was Judge Hastie's opinion of the Third Circuit and it was that opinion which led to the State of Pennsylvania to reverse itself on this issue of notice. It is quite true as the -- my Brother Mitchell indicates in Collins and Claudy, there was no notice of any kind to the prisoner that he was being dealt with as a habitual offender. Judge Hastie's reply there was as follows, “We cannot see how any subsequent showing that the accused did not have a good defense can excuse the failure to found one part of the sentence, it's more than the other from the normally prerequisite procedure of notice and hearing. We are satisfied,” he says, “that fundamental fairness and judicial procedure required the court impose an enhanced penalty only upon the basis of a supporting judicial determination of the essential facts made after the defendant has been informed of and heard upon the issue of recidivism. That decision led to the State of Pennsylvania to reverse itself. The state had had decision in effect similar to the one in the Blankenship case here in West Virginia which says that no notice is required, so also Pennsylvania had concluded that no notice was required. Following Collins and Claudy, however, Benzing and Myers that's referred to in the brief, there was a petition for habeas corpus seeking release from the Pennsylvania state penitentiary. Benzing had been convicted of voluntary manslaughter and there had been an enhanced punishment. He was told at the time of sentence just as ordering peremptory were told here that the habitual criminal act was being invoked but he was not told that he had a right to a hearing and time to prepare. It was held by the Supreme Court of Pennsylvania that although the act doesn't in terms provide for notice or hearing to avoid constitutional problems, the act would be reinterpreted. And it's shown there as here that neither the petitioner nor the counsel objected when sentence in that case was doubled and the judge did not inform Benzing that he had a right to hearings. It was held by the Supreme Court of Pennsylvania that there was no waiver when the petitioner did not know that he had any right. He was not released at courts, it was sent back for re-sentencing and so also I think it would be appropriate in the cases here.
John M. Harlan II: Could I ask you one question? Assuming that the statute is not to be construed as limiting the power of the judge on a request for adjournment that had been made, what is your answer to the question of waiver, a suggestion of waiver in the Oyler case, the counsel's failure, waiver arising from the counsel's failure to ask for any further notice or adjournment.
David Ginsburg: I'm afraid I don't follow your question Mr. Justice Harlan.
John M. Harlan II: My question is that assuming that if a request by counsel had been made for additional time when he was -- when his client was brought into court in Oyler, that the Court would have had power to grant an adjournment, grant more time.
David Ginsburg: You were making that assumption --
John M. Harlan II: I'm making that assumption, what answer -- assuming that the statute cannot be construed, should not be construed as you suggested earlier as you thought it might be, what answer have you've got on that set of assumptions to the waiver point in the Oyler case?
David Ginsburg: Yes. In the Oyler case where he had a trial?
John M. Harlan II: Yes.
David Ginsburg: I would say -- I recognize the possibility that counsel may waive rights. I don't believe that this is anywhere close to the fact of what actually took place in Oyler but I do believe on these assumptions that I believe counsel could waive his rights.
John M. Harlan II: Well, enlighten me as to why you don't think it's any way near what happened in Oyler, that's all I'd like to know.
David Ginsburg: What actually happened in Oyler was that after the trial and after the motion for a new trial was denied, this information was brought before the Court. I agree with my Brother Mitchell that the law has understood, the law as written provides that you may contest the issue of identification but that's all you can do. I don't believe that he waived any rights which he didn't have. He didn't have a right to raise this in Oyler and he didn't. I don't believe either counsel or that counsel was culpable in that case.
John M. Harlan II: In other words, you stand on the statute, don't you?
David Ginsburg: We stand on the statute and the record in this case.
John M. Harlan II: But if you're mistaken on the statute or one doesn't agree with you on the statute, is there any other answer?
David Ginsburg: No sir.
Earl Warren: Mr. Ginsburg, I understood (Inaudible) --
David Ginsburg: Yes, I don't understand that to be an issue in this case, exactly.
Earl Warren: (Inaudible)
David Ginsburg: No and I believe the court will find that there are numerous decisions cited in both briefs which we are in agreement as to the meaning of the law in the State of West Virginia.
John M. Harlan II: Well, perhaps -- excuse me, perhaps I misunderstood Mr. Mitchell and to my point of view, this is important, I had understood him to say that notwithstanding the admission of identification and notwithstanding that the statute permits only the issue of identification, notwithstanding both those considerations that if a request for an adjournment had been made, it would've been honored and the court had power to honor it. Now maybe I'm wrong about that. If I am wrong I'd like to be corrected.
David Ginsburg: I cannot speak of course for Mr. Mitchell. Within my limited knowledge of what the law is --
John M. Harlan II: Perhaps the Chief Justice would allow Mr. Mitchell to answer that because I think it's important. Do you understand my question?
David Ginsburg: I think I do, Mr. Justice Harlan. My answer I think was then that he would have the power to grant it but the question that was asked, what good would it do (Inaudible) --
John M. Harlan II: Well, that's a different question. My question was (Voice Overlap) --
David Ginsburg: Yes, and he would have the power to grant a continuance.
Earl Warren: But at the time to which the case was continued, the judge then have no power to hear those contentions if he admitted his identity.
David Ginsburg: That's right sir.
Felix Frankfurter: I would like to ask -- assuming (Inaudible) -- assumed that (Inaudible) assumed their rights on the (Inaudible) -- assume that that is so, assumed that what was done (Inaudible) --
David Ginsburg: By that you mean, can't the law of West Virginia -- may West Virginia do what it has done in this case, that is to say on the assumption made by Mr. Mitchell that he has said it's possible that West Virginia, the Supreme Court of Appeals received these applications for certiorari, for habeas corpus, they examined it. They also examined the law of the State of Pennsylvania. They concluded that this man was guilty of felonies punishable by imprisonment in the penitentiary under the law of West Pennsylvania and then denied the petitions --
Felix Frankfurter: Is that the law in (Inaudible) --
David Ginsburg: And I would concede that if that were done, so far as concerns that particular aspect of the case without reference either to notice or to equal protection, I would regard that as sufficient under the law.
Felix Frankfurter: (Inaudible)
David Ginsburg: It would be a curious practice Mr. Justice Frankfurter to have a man in jail under a life sentence and then say to him that you have the right to test this, the notice in hearing which we are giving you is a notice and hearing to file a petition for an application for habeas corpus.
Felix Frankfurter: (Inaudible)
David Ginsburg: No sir. That -- this means --
Felix Frankfurter: (Inaudible)
David Ginsburg: No, there were 983 on this -- its page 59, there were 983 prisoners identified by name who were subject to the recidivist statute and who could have been imprisoned for life. Of these 983, only 79 were in fact sentenced to life imprisonment. Although the statute has indicated is mandatory. 904 were imprisoned but only on the last offense.
Felix Frankfurter: (Inaudible)
David Ginsburg: Precisely.
Felix Frankfurter: (Inaudible)
David Ginsburg: No sir. Those are large counties and I will not characterize the State of -- the law observance in them.
Felix Frankfurter: (Inaudible)
David Ginsburg: Cabell, that's where I come from sir.
Felix Frankfurter: (Inaudible)
David Ginsburg: (Inaudible)
Felix Frankfurter: (Inaudible)
David Ginsburg: Yes sir.
Potter Stewart: What county is (Inaudible)?
David Ginsburg: Ohio.
Felix Frankfurter: (Inaudible)
Earl Warren: Mr. Ginsburg, before you sit down, on behalf of the Court, I should like to express my appreciation to you for having to take this as a public service and (Inaudible) lawyers like yourself for the way you -- I mean, take this tasks for public service. (Inaudible) -- we appreciate the diligence (Inaudible) manner which you have (Inaudible) --