Warren E. Burger: We'll hear arguments next in Vincent v. Texas. Mr. McCutcheon, I think you may proceed whenever you're ready.
Robert D. McCutcheon: Mr. Chief Justice, and may it please the Court: This case is before this Court on direct appeal alleging the unconstitutionality of the Texas probation statute under the provisions of the decisions in Morrissey v. Brewer and Gagnon v. Scarpelli, insofar as they relate to the revocation of probation. The issue in this case: Was Danny Vincent denied due process of law by reason of the failure of the State of Texas to grant him a preliminary hearing to determine probable cause as soon as reasonably possible after his arrest?
Warren E. Burger: Now, you're going to tell us why that wasn't swallowed up by the subsequent developments, aren't you?
Robert D. McCutcheon: I'm sorry, Your Honor.
Warren E. Burger: Why that lack, assuming that there was a lack, was not swallowed up and made irrelevant by the subsequent events?
Robert D. McCutcheon: Yes, Your Honor. In the first instance, the State is alleging that the subsequent events were these: number one, he admitted to the arresting officer that he was driving while intoxicated and that was a sufficient admission of a crime under the State of Texas which was a violation of his probation, therefore obviating the necessity for a preliminary hearing as to due cause. Secondly, he so admitted to his probation officer at the time and immediately after his arrest, and the probation officer observed him in an intoxicated state and concluded from that that he had violated his probation conditions. And third, that he was afforded a full blown, evidentiary judicial hearing at which the Court found that he had violated his probation and that he had admitted on the stand that he so violated it.
Byron R. White: And did he admit on the stand also that he had on the spot conceded he was intoxicated?
Robert D. McCutcheon: I believe that's true.
Byron R. White: At the full hearing did it come out, what he had said before?
Robert D. McCutcheon: Yes.
William H. Rehnquist: Well, what then can we do for your client? We can't add 20 days to his life, presumably.
Robert D. McCutcheon: In terms of whether or not there was probable cause to hold him and whether this Court should either send it back for that hearing, I would probably concede, although that's what this Court did in Gagnon v. Scarpelli, that that would be an irrelevant and useless situation. I think the Court is faced with this situation of evidence.
Warren E. Burger: What else do you want?
Robert D. McCutcheon: I have also asked the Court to in essence dismiss the probation proceedings.
Warren E. Burger: Right.
Robert D. McCutcheon: By reason of the fact that the State of Texas for the past eight years has consistently refused to apply the mandates of this Court in due process hearing. In other words he is now a person with a right, I contend, without a remedy.
Warren E. Burger: Well, do you have any complaint about the revocation hearing on the proceeding?
Robert D. McCutcheon: Not the second stage hearing which this Court talked about, the full blown hearing; there was no complaint at that hearing. We did make--
Warren E. Burger: You have no complaint about it now?
Robert D. McCutcheon: --No, none whatsoever.
Warren E. Burger: Well, then, what good--
Robert D. McCutcheon: But we haven't complained about it.
Warren E. Burger: --would the preliminary hearing do you under the Morrissey case?
Robert D. McCutcheon: In terms of what it would actually do, what would happen is, if you remanded it for that probable cause hearing, they would put on the same evidence that was at the full blown hearing, they would conclude there was probable cause, and you'd have the hearing. So the practical effect would be the same. But the constitutional effect is that he has been denied at the time--
Warren E. Burger: Well, would not the practical effect... tell me what the practical effect would be?
Robert D. McCutcheon: --Well, the practical effect is, at the time that he was arrested and at the time from that point until he had a counsel appointed and was out on bail, he was held without a determination of probable cause under this Court's mandates. Sure, looking back on it now, after two years of history, there is not a whole lot that this Court can do to rectify that violation of his probable cause. I think the Court recognized that in Gerstein v. Pugh.
Byron R. White: You're not saying, rectify the probable cause?
Robert D. McCutcheon: No.
Byron R. White: To rectify the lack of a probable cause hearing?
Robert D. McCutcheon: Exactly.
Byron R. White: There certainly was probable cause.
Robert D. McCutcheon: The fact of probable cause was never attacked. The fact of denying the hearing was attacked.
Warren E. Burger: What does Gerstein v. Pugh tell us about that problem?
Robert D. McCutcheon: Gerstein v. Pugh, the only way that comes in is, what do you do with a conviction which is based upon an improper detention or an arrest without probable cause? And that has told me that this Court up to now has said, we are not going to void that conviction. However, there have been cases in the lower courts--
Warren E. Burger: Well, if we wouldn't void a conviction on that ground, do you think we ought to void a parole revocation on that ground?
Robert D. McCutcheon: --In this case, yes.
Warren E. Burger: And then what would happen? They'd have another parole revocation hearing all over again?
Robert D. McCutcheon: Not on this particular violation, no.
Warren E. Burger: Why not?
Robert D. McCutcheon: If that conviction--
Warren E. Burger: You mean that's dead and gone?
Robert D. McCutcheon: --I think it would be; yes.
Warren E. Burger: A revocation couldn't properly be based upon that conduct? Is that what you're telling us?
Robert D. McCutcheon: I think in this situation that would be the logical conclusion of what this Court would say, yes.
William H. Rehnquist: Is this a class action?
Robert D. McCutcheon: No. It isn't.
William H. Rehnquist: And Gerstein v. Pugh was an appeal by the tate from an opinion of the three judge district court, was it not?
Robert D. McCutcheon: Yes. And it was a class action.
Harry A. Blackmun: In other words, would you be satisfied with prospective relief here?
Robert D. McCutcheon: I would be satisfied with my client, first of all, having his probation revocation voided, and secondly, if this Court decides from that point on that it applies only to probation revocations which are on appeal currently in Texas plus in the future, my client would have no reason not to accept that ruling.
Byron R. White: But as far as the law is concerned if it were simply announced that dispensing with the first hearing was not testified in this case but that no relief flows from that, you would be sort of like Gagnon. At least the law would be established. To the extent that you say Texas just isn't obeying this, why there would be at least a statement from this Court that it isn't. But your client would wonder if he'd won his case or not.
Robert D. McCutcheon: He'd won the battle but maybe lost the war.
Byron R. White: Well, I don't know; you might... this is not a 1983 suit, is it?
Robert D. McCutcheon: No.
Byron R. White: But if you had waited and filed a 1983 suit and said I want some damages even if it's a peppercorn, I want a declaratory judgment that I was wronged, and I want damages, and I should get a penny at least.
Robert D. McCutcheon: That peppercorn might give Mr. Vincent some moral satisfaction.
Byron R. White: Well, at least it would be a--
Robert D. McCutcheon: But I think the State argues, and depending on how this Court handles the question of prospectivity, for example--
Warren E. Burger: --Do you think it's the function of this Court to be handing out peppercorns or granting significant relief?
Robert D. McCutcheon: --I think it's the function of this Court to enforce the Gagnon v. Scarpelli and grant significant relief insofar as Mr. Vincent is concerned, and I think in terms of whether it's prospective or not, we're not talking about a situation like Gagnon v. Scarpelli or Morrissey v. Brewer. Those cases have been on the books for eight years, and the Texas Supreme Court has had three prior times to consider those, and in each case... the Texas Court of Criminal Appeals... and in each case it said, no, it does not apply, and we are not going to follow it. And so it's not a situation of this Court pronouncing some new constitutional law.
Byron R. White: Did they say that in here? Did they say that here?
Robert D. McCutcheon: They simply said that in this case, that Mr. Vincent's position has been adversely decided against him in a prior case and cited the Whisenant v. State case. That's all they said. It was a per curiam decision without--
Byron R. White: And what did they say in the prior case?
Robert D. McCutcheon: --In the Whisenant case they said that Gagnon v. Scarpelli does not apply to Texas probation revocation proceedings for several reasons: number one, we made the distinction earlier between the suspension of imposition of sentence and the suspension of execution; number two, Texas procedure provides more due process than Gagnon v. Scarpelli; and third, that the probationer is entitled to a mandatory 20-day hearing, and that obviates the necessity, they believed, for a preliminary determination from appellants.
Potter Stewart: Mr. McCutcheon, according to my recollection there was recently filed in this case a motion to dismiss the appeal, based upon the proposition that your client had escaped before his case was decided by the Court of Criminal Appeals of Texas, and that therefore that court didn't have any jurisdiction and that we don't. Are you going to address yourself, before you sit down, to that motion? Am I right in recollecting that we postponed consideration of that motion--
Robert D. McCutcheon: That's correct. But it's not... because I understood that--
Potter Stewart: --to the hearing on the matter?
Robert D. McCutcheon: --I understood that that motion had been already overruled by this Court.
Potter Stewart: Oh, I see. Then I was wrong.
Robert D. McCutcheon: That was my understanding from co counsel. I had not intended to talk-- It seems to me that the point of analysis, in looking at the State's position and the Court of Criminal Appeals position, when this Court made the pronouncements in Morrissey and Scarpelli, they were talking about... you were talking about--
William J. Brennan, Jr.: Excuse me, Mr. McCutcheon?
Robert D. McCutcheon: --minimum requirements... yes?
William J. Brennan, Jr.: Did you say you had information that we had actually overruled that motion? Didn't we just postpone it to this--
Robert D. McCutcheon: As I understood it, you're talking about the motion to dismiss on escape?
William J. Brennan, Jr.: --Yes, sir.
Robert D. McCutcheon: As opposed to the original motion to dismiss for lack of jurisdiction.
Potter Stewart: No, no, this is a motion based on his escape, on his alleged escape.
Robert D. McCutcheon: I was informed by counsel for the State this morning. I have no personal knowledge of that, that that motion on escape, which was filed last week or so, had already been overruled by this Court.
William J. Brennan, Jr.: You mean by a formal order? I don't recall that.
Robert D. McCutcheon: All I was told, that it had been overruled.
Byron R. White: We postponed it to the merits. That had been my recollection but I was--
Robert D. McCutcheon: Well, I understood that the motion that was postponed to the merits was the original motion to dismiss that was filed right after I--
Byron R. White: --The motion was denied, we're informed. You're correct.
Robert D. McCutcheon: --All right.
Byron R. White: Where is your client?
Robert D. McCutcheon: My client is in the correctional facility in the State of Colorado. He has been later subsequently convicted of forgery charges. The Appendix set forth in the State's motion to dismiss is substantially correct as to what happened.
William H. Rehnquist: When was your last communication with him?
Robert D. McCutcheon: Right after I received the State's Motion to Dismiss on the grounds of escape.
William H. Rehnquist: This recent one?
Robert D. McCutcheon: Yes. The State would have this Court focus on... and I think the Court of Criminal Appeals has focused on the second stage in a probation revocation case, and that is the determination of whether to revoke. The State has not addressed nor has the Court of Criminal Appeals addressed the first stage, that is, the requirement of a hearing to determine probable cause.
William H. Rehnquist: Well, wasn't one of the conditions of his probation to obey all the laws?
Robert D. McCutcheon: Yes.
William H. Rehnquist: And he was picked up for drunken driving?
Robert D. McCutcheon: Yes.
William H. Rehnquist: And didn't either the arresting officer or... I forget if he was taken before a magistrate or not... find there was probable cause to arrest him for drunken driving?
Robert D. McCutcheon: The officer made that determination as he must do in all situations for arrest. That, I don't think, is what this Court was talking about in Gagnon v. Scarpelli and Morrissey v. Brewer. You were talking about a disinterested person.
Potter Stewart: What admissions if any did your client make at that time?
Robert D. McCutcheon: Well, he admitted that he was intoxicated and that he was on probation.
Potter Stewart: And even that he was driving?
Robert D. McCutcheon: Yes.
Potter Stewart: Well, that's clear.
Robert D. McCutcheon: Well, he was clearly driving the car.
Potter Stewart: So it was a clear violation of his probation, wasn't it?
Robert D. McCutcheon: Yes.
Potter Stewart: By his own admission?
Robert D. McCutcheon: Yes.
Warren E. Burger: What do you need the hearing for at that stage, in view of his subsequent admission at the revocation hearing that he had violated the conditions of his parole? Why aren't all the preceding steps utterly moot and irrelevant?
Robert D. McCutcheon: Because, Your Honor, as this Court has said, one of the purposes of that preliminary hearing is not only to determine probable cause but to--
Warren E. Burger: But he's determined it. He's determined it by his admission.
Robert D. McCutcheon: --But, number one, he was intoxicated when he made that admission.
Warren E. Burger: What did he admit when he had the revocation hearing, which was a number of days or weeks later?
Robert D. McCutcheon: When I put him on the stand he admitted that he had been drinking beer seven or eight hours earlier.
Byron R. White: And that he had admitted it before?
Robert D. McCutcheon: Yes.
Warren E. Burger: And he was conscious of having admitted it before?
Robert D. McCutcheon: It seems to me, though, that what this Court... the problem with that approach is that you're looking at a later determination of the merits to decide whether you filed... should or should not have followed due process grounds earlier in the case. And you can never know that, and a person can be incarcerated for a substantial length of time without the disinterested determination that this Court set forth as one of the minimum requirements of due process under the Fourteenth Amendment.
William H. Rehnquist: But we decide specific concrete controversies here, and in this case certainly there is some sense that there wasn't a concrete controversy as to whether your client at the initial stage had violated parole.
Robert D. McCutcheon: I would agree with that statement. There was no concrete conscious controversy at that time.
William H. Rehnquist: Then, why haven't all of his rights been fulfilled by the State of Texas? Certainly there's no reason to have a hearing about a fact which is not in dispute, is there?
Robert D. McCutcheon: It seems to me that there is a reason to have a hearing for a fact which may not be in dispute and that is that in order to set a procedure, a constitutional procedure under that statute, which for seven years the Court had said it did not have to follow, that even though he may have admitted it at the time he is still entitled to that hearing, to have the evidence presented against him, the witnesses told to him, and a chance to speak.
William H. Rehnquist: Well, supposing that in a civil case the plaintiff alleges that the defendant was at the intersection of High and Broad in Columbus, Ohio, at 12 noon on such and such a day, and the defendant admits it, do you think that either party is entitled to a hearing on that?
Robert D. McCutcheon: Not in a civil case. That's governed by local procedures, whether that's an admission or whether that's a concrete evidentiary fact, or as to how it can be used at trial.
William H. Rehnquist: But isn't yours very much the same, that there is no dispute as to the fact on which you want a hearing?
Robert D. McCutcheon: There is no dispute now as to the fact, there probably was not a dispute at the time, but the fact is that he was not afforded those minimum due process rights which I do not understand to be dependent on whether he was guilty or innocent. If he was guilty we don't need a later revocation hearing on the fact of his guilt except for determining whether he should be revoked or not.
Warren E. Burger: Well, that isn't what Morrissey v. Brewer held at all. Morrissey v. Brewer said that the first hearing should be held promptly to determine, among other things, whether they got the wrong person... they might have two people of the same name... to give them a chance to have witnesses that are in the same neighborhood if the place of the ultimate revocation hearing is far distant. Now, here, where he has admitted in the second hearing that he was driving while under the influence of liquor, that he admitted it on the scene at the time, the whole purpose of the preliminary hearing was lost and gone, by his own admissions. And why, why are we wasting the time of the courts to decide this academic question which you concede probably has no practical consequence?
Robert D. McCutcheon: Your Honor, number one, it's not purely academic.
Warren E. Burger: It isn't a class action, as Justice Rehnquist suggested--
Robert D. McCutcheon: No.
Warren E. Burger: --where you make the establishing procedure.
Robert D. McCutcheon: But I think you are in essence, you are establishing a procedure in Morrissey--
Warren E. Burger: We've established that in Morrissey v. Brewer.
Robert D. McCutcheon: --And you've established it in Gagnon v. Scarpelli. And the fact is that the Texas courts have not been following that procedure.
Warren E. Burger: Well, you're here to see, to have us monitor the State courts on their actual application?
Robert D. McCutcheon: Insofar as it related to my client, yes.
Warren E. Burger: And, will you tell us again what you can accomplish?
Robert D. McCutcheon: Insofar as my client is concerned, I cannot probably accomplish any more than was accomplished in Gagnon v. Scarpelli. And in that case the person in Scarpelli had been caught in the act of a burglary, as I recall. And under the evidence of one of the probation officers he supposedly had admitted it, although he later revoked that under grounds of fraud and duress. The same thing is true in Morrissey v. Brewer. There were elements of admissions in both of those cases.
Warren E. Burger: Yes, but, again, Morrissey v. Brewer said he's entitled to be sure you've got the right man so they don't send him back to jail because of an act committed by someone else of the same name. And so that he is entitled to have the witnesses in his own locality brought into that preliminary hearing, and it is not even a judicial hearing. It could be a probation officer.
Robert D. McCutcheon: It could be a disinterested--
Warren E. Burger: And the probation officer dealt with it here.
Robert D. McCutcheon: --But that was not a disinterested probation officer. That was the probation officer that made the decision to revoke.
Warren E. Burger: And he rather sensibly concluded that nothing else was necessary, in view of the admissions of this man that he was driving under those conditions, would you not agree to that?
Robert D. McCutcheon: I would think he concluded that under the state of the law at the time that was all he had to do, was to get the county attorney to file a motion and have the probation started. And under the State of Texas law at that time, I think he was right. And the only question is whether that's constitutionally permissible. I would like to reserve, if there are no further questions, the balance of my time for rebuttal.
Warren E. Burger: Mr. Becker, among other things, perhaps you will enlighten me on why we're here at all.
Douglas M. Becker: Yes, Your Honor. Under Gerstein v. Pugh, and the other cases, I don't believe that there is any possibility of this Court giving any relief whatsoever to the petitioner. As a matter of fact, he's received a determination that there was probable cause to arrest him on at least three different occasions, varying in reliability. First, at the scene of the crime, when he was arrested while driving and in an intoxicated state, he admitted, the arresting officer determined that there was probable cause to arrest him. Now there was an impression perhaps left that he later stated that he had been drinking eight hours earlier. Actually, he testified at the evidentiary hearing... it was quite clear at the final revocation hearing that he had been drinking for seven or eight hours, and he stated, I took my first drink eight hours ago, and admitted that he had been drinking wine, beer, and schnapps. Now, at the scene of the arrest he didn't go into that detail as to exactly what liquors he had been drinking but he did admit that he was drunk to the officer, who had stopped him under the circumstances in which he was driving his car in irregular manner and in which he observed him in what he believed to be an intoxicated state. Not only did the arresting officer believe there was probable cause but the arresting officer immediately called the man's probation officer who met them at the jail. At the jail they had conversations with him after giving him Miranda warnings for I believe 45 minutes, the record reflects, and the probation officer testified at the revocation hearing, no doubt that the man was drunk; he made no bones about the fact that he was drunk. The probation officer testified that the reason he had come to the jail was because the police officer had called him to do so. All right, now, all this occurred on February 3. The record apparently reflects that Mr. Vincent was allowed to go home for the weekend because on February 6 there was an arrest warrant obtained. It appears on page 18 of the Appendix and differentiates this case from Gerstein v. Pugh, and from Morrissey and from Gagnon v. Scarpelli. On the 6th the arresting officer and the probation officer went to the magistrate, to the judge, and told him what had happened and presented evidence to him. And he issued an arrest warrant which recited, having heard and considered the evidence offered by the State in support thereof. That was an ex parte proceeding but nevertheless it constituted judicial review of the decision to arrest.
Potter Stewart: And presumably was issued only upon probable cause?
Douglas M. Becker: Yes, Your Honor.
Potter Stewart: Although it doesn't so recite, does it?
Douglas M. Becker: No, Your Honor. It recites, "Having heard and considered the evidence offered by the State, the Court is of the opinion that a warrant-- "
Potter Stewart: Should be issued for the arrest of the said appellant.
Douglas M. Becker: That's right. And the record contains the copies to the sheriff. The sheriff went out and arrested Danny Vincent on the 6th. He was returned to jail on that date.
Warren E. Burger: Does the language, "The Court is of the opinion that an arrest warrant should issue-- "
Douglas M. Becker: Yes?
Warren E. Burger: --does that equate to probable cause? Is that an implicit finding?
Douglas M. Becker: Yes, Your Honor, because under Texas law probable cause is required for an arrest warrant to arrest for a motion to revoke probation, same as in any other circumstances. All of the laws of arrest apply to probationers in Texas, equally to persons who have never been charged with a crime.
William J. Brennan, Jr.: What's the reference in the arrest warrant to burglary?
Douglas M. Becker: To the burglary?
William J. Brennan, Jr.: Yes.
Douglas M. Becker: None whatever, Your Honor. The burglary now is the offense for which he had received probation, and the reason--
William J. Brennan, Jr.: --for the revocation was the drunken driving offense.
Douglas M. Becker: --Yes, that's right. And there is... I'm sorry, there is a reference at the very end of the arrest warrant to burglary, that being the original offense for which he had been put on probation. There is no reference in it to driving while intoxicated, which is why he had been--
Potter Stewart: It was a burglary, which was--
Douglas M. Becker: --his original offense, for which--
Potter Stewart: --Original conviction?
Douglas M. Becker: --Yes. Original conviction for which he'd received six years' probation. That's right. In addition to the arrest warrant, of course, at the revocation hearing itself, he received a full and fair opportunity to present everything that he had. His counsel, in fact, made a two pronged attack. He did an excellent job, I'm sure every member of the court would agree, in the presentation of the State's case to attempt to establish that there was not a preponderance of the evidence to believe that Mr. Vincent was actually intoxicated. He did the best job that he could.
Warren E. Burger: This hearing that you referred to, the order on page 18, that occurred two days, no one day after the drunken driving episode, did it not?
Douglas M. Becker: Yes, sir. I believe that was, yes, the day after. Now, I don't believe it was filed until two days later and it wasn't acted upon until two days later.
Warren E. Burger: Do you suggest that that process is the equivalent, the functional equivalent of the hearing that might have been held before a neutral probation officer under Morrissey v. Brewer?
Douglas M. Becker: Not alone, Your Honor. Not alone; no. It's not the equivalent. But in conjunction with the other things that occurred in the case and in conjunction with the revocation hearing, the final hearing itself, we do argue that that was the functional equivalent of the preliminary hearing. Now, if I... when Gagnon and Morrissey v. Brewer came down and the Texas courts started to read those cases, I need to explain the reaction that they had in their published opinions to those cases, because the statement has been made, the Court of Criminal Appeals has consciously and steadfastly ignored the decisions of this Court for eight years in this area. And I don't believe it's true, and I don't believe that it's fair. When the cases came down the Court of Criminal Appeals read them and said, well, this is all very nice for these other people, for these people in Iowa and Wisconsin where these cases are coming from. Look what's happening to them; they're being arrested without probable cause, they're being arrested without warrant, they're being arrested by their parole and probation officers. They're not only not getting a preliminary hearing, they're not even getting a final hearing. In neither one of those cases did those men get a final hearing. They didn't have the right to an attorney. The parolee after he was arrested was carted away to prison without any kind of a hearing, which was 100 miles away, and never got one at all. Those procedures are so foreign to Texas and so distant from our procedure that our court simply shook its head and said, well, we're glad that we haven't done that; and insofar as the Supreme Court's case by case determination of the right to counsel at final hearings, well, of course, we always give the right to counsel at all final probation hearings... revocation hearings.
Warren E. Burger: At revocation?
Douglas M. Becker: Yes, sir, at revocation. It's a per se right to counsel in all cases. When the accused is indigent, counsel is appointed for him. There is no exception to it and it's always been that way. Now, when Gagnon v. Scarpelli came down, the cases from the Court of Criminal Appeals, in its wake, said, well, the Supreme Court now has also given some rights in a preliminary hearing. They have to do those things because the way that other States revoke probation is so far different from ours, they give such fewer rights at the revocation hearing itself. The accused has so much less protection that it's a necessity. But in Texas that hearing is full and fair, always he's represented by counsel; he has a right to a speedy hearing in two senses: they both apply the Barker v. Wingo, and the other teachings of this Court on the constitutional right to a speedy trial, which is something very few other states have done; they've also passed a statute since 1975 which creates a statutory right to a speedy hearing within 20 days. There are always written findings; there's never anyone but a judge who conducts the hearing. There are no administrative revocations in Texas, always a judge; unlimited right of appeal; complete applicability of Fourth and Fifth Amendment protections, search and seizure. The rights of the probationer are precisely the same as any other person. The Court of Criminal Appeals has ruled invalid conditions in probate--
John Paul Stevens: Mr. Becker, may I see if I can restate your argument as I understand the thrust of it? You're saying in effect that the Morrissey v. Brewer procedures are an appropriate remedy to apply to a state which has previously had unconstitutional procedures. But the Texas procedures have always comported with due process of law so there's no reason to tamper with them at all?
Douglas M. Becker: --That is the large part of what I'm saying. Really, I'm saying, though, that the Court must look at the entire panoply of rights given the accused.
John Paul Stevens: Right. And then when you do you find that there's no constitutional violation in the way you go about revoking parole, so there's no need to follow a procedure that was tailored for a State that had violated the Constitution up to that time?
Douglas M. Becker: Exactly; that's exactly right. Yes, Your Honor. That there is... when you tailor a procedure for those States which have given no hearings at all, no attorneys at all, and really no hearing of any evidence at all, and say, well, these are the minimal things, there's not an algebraic match up between those things and every other State.
Warren E. Burger: In other words, you're saying Texas is giving a great deal more than Morrissey v. Brewer required.
Douglas M. Becker: Your Honor, if the flexibility in according due process protections that this Court has so frequently spoken of means anything, it means to me that what Texas has done in this case overall greatly exceeds the constitutional minimum, and that the mere happenstance that as far as the preliminary hearing is concerned, that that is not something that's routinely afforded in light of all the other procedures, states no violation of the Constitution.
William H. Rehnquist: Mr. Becker, you mention on page 11 of your brief the case of Escoe v. Zerbst, which was decided by this Court in 1935, which characterized probation as an act of grace. Do you suggest by that that as a matter of federal constitutional law that Texas courts were at least entitled to rely on that up until the time Morrissey v. Brewer came down, and they felt they were according the parolee more rights than the Constitution of the United States accorded him?
Douglas M. Becker: Consistently yes, Your Honor. That's correct. And that the actual, the development of these rights in Texas, as we tried to carefully explain in our brief, has always either been contemporaneous or preceded that of this Court. The right to counsel, for example, is given in Texas in these proceedings, well, it's given today, and this Court has still not given per se right to counsel in these proceedings. So Texas has always believed that probation is an essential component of the whole criminal justice system, has always utilized it. I think the statistics which we present in our brief show the overwhelming use of probation. The majority of felony convictions in Texas end in probation. It's widespread; it's rehabilitative too. I think it would be a real disaster if by tampering with the Texas scheme unnecessarily the result were to be to discourage the use of probation by prosecutors in Texas.
John Paul Stevens: Mr. Becker, can I just ask one more question? The one flaw that occurs to me in your argument is the fact that I think you rely heavily on the probationer's right to a prompt hearing, if he makes a demand. But as I remember, you don't provide any way of letting him know he has that right. How do you defend that?
Douglas M. Becker: Well, Your Honor, there are all sorts of rights given to all sorts of people, that those people aren't told about. It's perhaps unfortunate. It was clearly the intent of the legislature and the Court of Criminal Appeals has stated this on three occasions, that the purpose of that statute was to augment the general right to a speedy hearing which had already held in these matters, by an even stricter statutory right. About the same time they passed a Speedy Trial Act in general applicable to everyone else who was not on probation, of course, and in that Act they stated that certain consequences would flow from violation of it. Of course, they didn't do the same thing in the statute, and in response to your suggestion that it's a flaw in our argument, we don't think that there's any question but that our procedures are valid, even if we didn't have the statute. And the fact that we have it merely illustrates an even additional attempt to assure that probationers are not allowed to remain in jail indefinitely before they have their hearing. Now, as a theoretical matter, any person might remain in jail indefinitely by a mistake being made. Any person could always be thrown in jail and might be overlooked administratively. That danger always exists. And ultimately, for such a person, in any context, all he can do is either get on the telephone and call a lawyer, or file some sort of paper with some Court protesting; in other words, amounting to a writ of habeas corpus. Well, the danger's no greater here. If Danny Vincent had filed any sort of paper protesting his incarceration or asking to see the judge or anything at all, that might have been construed as a request for a speedy trial. I have little doubt that it would have. So that he had some protection from that. In addition--
Thurgood Marshall: Is it also true that he wouldn't get it if he didn't do it?
Douglas M. Becker: --No, Your Honor, I don't think that that is true any more than anybody else who was thrown in jail.
Thurgood Marshall: Well, we realize that a man in Huntsville doesn't move around freely, don't we?
Douglas M. Becker: Well, now, the record in this case reflects, Your Honor, that he made two phone calls to his former attorney. Now, remember, this man has... by definition has experience in the criminal justice system. He's already been arrested for burglary. In our case he'd already been arrested already for--
Thurgood Marshall: Do you know that our Constitution has two sets of rules, one for those who know, and one for those who do not know?
Douglas M. Becker: --Well, he already had a lawyer. No, it doesn't, Your Honor; that's right. But he already had, although this Court has often said it on a waiver question, that the experience in criminal law might be waived. But he had a former attorney in the burglary. He called that lawyer. He talked to her on one occasion. He talked to his probation officer.
Thurgood Marshall: How'd you know that?
Douglas M. Becker: Because he testified to that in the transcript. It's cited, the page cite is number--
Thurgood Marshall: I think I remember that one.
Douglas M. Becker: --Yes, sir, he had a conversation with her on the telephone.
Thurgood Marshall: But my whole point is that you put a guy in jail and then the statute says, if you can get word out, you'll get a hearing. Well, in my book that's not due process.
Douglas M. Becker: Well, as I said, Your Honor--
Thurgood Marshall: Is that the Texas system?
Douglas M. Becker: --In other words, if he didn't get word out, he could sit there indefinitely?
Thurgood Marshall: Yes.
Douglas M. Becker: He could sit there indefinitely except that he has a right to bail, in the discretion of the court, and he has a general--
Thurgood Marshall: Does he get the bail without applying for it?
Douglas M. Becker: --Well, he may.
Thurgood Marshall: How?
Douglas M. Becker: It's in the discretion of the trial court.
Thurgood Marshall: Well, how can the Court give him bail if he doesn't ask for it?
Douglas M. Becker: Well, they did it... directive reflects... they did it the first time he'd been thrown in jail for possessing marijuana.
Thurgood Marshall: Well, how did he get before the court?
Douglas M. Becker: On that occasion?
Thurgood Marshall: I thought this case was talking about the man who is in jail?
Douglas M. Becker: Yes, that's correct, sir.
Thurgood Marshall: Well, how can he get bail in jail if he doesn't apply for it? Does the judge go around and say, do you want bail?
Douglas M. Becker: Apparently, the judge might, the judge and the district attorney. The record doesn't reflect who's monitoring it. Someone is monitoring it, and when he's taken into jail in that fashion, he's no worse off than anybody else who's taken to jail.
Thurgood Marshall: I'm just asking for facts.
Douglas M. Becker: Yes.
Thurgood Marshall: Is the only way that he gets this due process is to ask for it in some fashion?
Douglas M. Becker: Well, the only way that he's guaranteed to get it, that's correct, Your Honor. The same as if I were walking down the street and were thrown in jail, the only way I could guarantee to get my due process is to ask for it.
Thurgood Marshall: Does that make it right?
Douglas M. Becker: Well, if I were a legislator I might have written that statute a little differently, but I am adamant upon the point that if we didn't have the statute our procedures would still be constitutional. I would have a hard time understanding how, under the procedures this Court approved in Gagnon and Morrissey v. Brewer... it should be recalled, if this man were from Wisconsin or Iowa, under those procedures, his probation officer could have seen him driving down the street and thought he was intoxicated, could have stopped him on his own, could have said, I think you're drunk, come with me, taken him in to his office, called in his coworker, his co probation officer from next door... apparently, as I read the law, that would be a hearing by a neutral person... and say, this man is drunk, I'm going to throw him in jail. Is that all right with you? And his coworker might say, well, have you got anything to say for yourself? He might say, well, I haven't had that much to drink. My girl friend's here, do you want to talk to her? He could talk to her, satisfy himself that there was probable cause, take him in, throw him in jail. Now--
Warren E. Burger: And that would comply with Morrissey v. Brewer, you say?
Douglas M. Becker: --I say that it would, as I read the case. Now, if that's going to comply with what this Court says is the minimum, I can't understand how what Texas did in this case can be said to fall below that standard. As a matter of fact, it would be incomprehensible to me. Gerstein v. Pugh appears to wholly bar relief even if the Court were to find a defect with the preliminary hearing in Texas. He's already received that in the revocation hearing and the retroactivity discussion in our brief, of course, is really meant to buttress that type of fact. If it is going to be applied to anyone, particularly if it's going to be applied retroactively, as we state in our brief, there are several thousand probationers in Texas who were sent to prison under these procedures. There are also in other States. As a matter of fact, Texas is not alone in what it's done and the way it's responded to Morrissey v. Brewer and Gagnon. There have been several States, and I would include among these Michigan, Florida, Georgia, and Kentucky, in my belief, according to how I read their case law, have responded by saying, we don't think, in our State, that the Supreme Court's gone far enough in what they should give at the actual revocation hearing, whether it's parole or probation. We think that we should go farther than that. And at the same time they have loosened up or introduced the element of flexibility into what they were going to require in terms of the preliminary hearing or whether they would require one at all. The Court has consistently spoken of the need to recognize and hold the flexible procedures introduced by the states where possible. We feel this is clear in such a situation. Indeed, the two things that were cited as need for a preliminary hearing in Gagnon and Morrissey were first that there would be a substantial time lag between time of arrest and the final hearing, and that there would be a geographical disparity; he may be carted away to prison. I've already addressed the question of time lag. We say there wasn't one in this case, and there couldn't be, reasonably, under the Texas procedures. As far as the geographic matter, in Texas, there is a right under our statutes to have your final revocation hearing at the place of your arrest, where you were arrested for your violation of your probation, or where you reside. There are venue provisions. Any judge can transfer jurisdiction wherever necessary or helpful to present evidence and witnesses. He has, not the limited right of confrontation and cross examination that this Court has spoken of in those cases, but an unconditional right.
Warren E. Burger: Is it always a judge of the State of Texas who hears the revocation proceeding?
Douglas M. Becker: Invariably. Invariably a judge.
Warren E. Burger: And that's considerably beyond our cases, isn't it?
Douglas M. Becker: Always a judge, always an attorney.
Harry A. Blackmun: You make Texas sound almost perfect. It isn't, you know.
Douglas M. Becker: Well, no, Your Honor, Mr. Justice Marshall may well have pointed out something that we might have done better, but in truth, if you look at the Appendix that's in our brief, which was prepared painstakingly, where there is a comparison of Texas procedures with those of every other state, as to what we selected as broad based matters of comparison, Fourth Amendment protection, Fifth Amendment rights, right to counsel, and whether or not each of those states affords those protections, Texas is the only state with "yes's" all the way across except of course that a preliminary hearing is not invariably required.
Byron R. White: But at that point, Mr. Becker, in order to take him into custody and start the revocation proceeding, doesn't the officer have to make a motion?
Douglas M. Becker: Yes. The probation officer has to file the motion.
Byron R. White: Where does he file it?
Douglas M. Becker: At court.
Byron R. White: And who acts on it?
Douglas M. Becker: Well, an arrest warrant has to be issued.
Byron R. White: I know, but who acts on it?
Douglas M. Becker: The judge.
Byron R. White: And the warrant doesn't issue until a judge acts?
Douglas M. Becker: Right.
Byron R. White: And what's attached to the motion?
Douglas M. Becker: What's attached to the motion to revoke? There's no evidence that is attached.
Byron R. White: Is there an affidavit?
Douglas M. Becker: There is always commonly an affidavit, yes, sir. It's signed by the probation officer and attorney--
Byron R. White: It's signed by him but not by a lawyer?
Douglas M. Becker: --Right. But... not by an attorney; no. Just by the probation officer, and the district attorney--
Byron R. White: Are you suggesting, or should you suggest, that whatever reliability factor the initial hearing in Morrissey was supposed to require is in a sense made up for by this necessity of filing a motion in court?
Douglas M. Becker: --It's... yes, it's made up for, that it's almost made up for, and that it's close enough to be an all right made up for, but because of the lack of a wrongful determination down the line, because of that hearing that's coming soon, that dealing both ends of the spectrum--
Byron R. White: Is this similar to the probable cause hearing that's necessary or equivalent to what's necessary in Gagnon to assure compliance?
Douglas M. Becker: --Well, yes, Your Honor, except that the accused has no right to be there. He's not present; he doesn't hear anything--
Byron R. White: Do you think the... do you think that Morrissey inevitably requires the presence of the accused at the first hearing?
Douglas M. Becker: --Well, that's how I read it; yes, sir. If I'm wrong upon that point, that's fine. But--
Byron R. White: Oh, I know you'd be glad--
Douglas M. Becker: --Yes, but as I read it, yes, he's required to be there. He's not always allowed to present evidence. He's not always allowed to present witnesses.
Byron R. White: --But it's really just that it's in order to have a fairly reliable probable cause determination, isn't it?
Douglas M. Becker: Yes, that's right. I don't... I think surely if Texas also required the presence of the accused at a preliminary hearing and put all that on top of all this, we might all applaud that.
Byron R. White: But you could arrest, you could have people arrested and incarcerated on an ex parte proceeding under an arrest warrant.
Douglas M. Becker: It happens all the time.
Byron R. White: And so, you're saying that this is as reliable as that, anyway.
Douglas M. Becker: Yes.
Byron R. White: You file a motion and the judge acts on it and issues a warrant.
Douglas M. Becker: Yes. It's as reliable as any--
Warren E. Burger: Well, under Morrissey v. Brewer, a man in this situation, apparently driving while intoxicated, might come into that preliminary hearing and bring in the affidavit of his dentist that he'd just had two teeth pulled and that he had given him a sedative and that that would explain a condition that would resemble intoxication. And then the probation officer might say, well, with that explanation, after this don't drive your car after you've had a sedative, and that would be the end of it. Or, if he came in and said, I am not the man who got arrested for driving while drunk, that was another man of the same name, and the probation officer if satisfied would then drop the matter. Is that not so?
Douglas M. Becker: --This is true, Your Honor. But, of course, in this case the arresting officer and the probation officer both spoke to him and of course he raised no--
Warren E. Burger: So there were no problems of the kind that we were concerned about in Morrissey v. Brewer?
Douglas M. Becker: --Right. If anything like that had been raised, well, these officers would have had the duty to tell the magistrate about that when they told him about probable cause. Or at least to tell... if they didn't tell him about that, they were aware of that and would still have been of the opinion, Your Honor, there's probable cause to arrest this man. In my opinion he was drunk.
Warren E. Burger: Now, your friend has not suggested... at least if he did, I didn't hear him suggest anything that might have been done, any showing that he might have made at that Morrissey v. Brewer hearing. Can you think of anything that might have been accomplished by holding that hearing right on the ground at the time?
Douglas M. Becker: None whatsoever. Under the Texas procedures, at the revocation of probation, also, frequently the only issue... and the only issue in this case, after the guilt or innocence part of the hearing... was whether or not to continue his probation. In Texas the probationer has a right in the discretion of the trial judge to be continued on probation even if he's found to be in violation of it. In fact, this was already done once in Mr. Vincent's case. And that is the real work of a lawyer in the Texas procedures and one of the main reasons that he gets a lawyer. Not only can he be continued on probation, but his term of imprisonment can be reduced by the judge at that point to any term that he feels is just. Again, he had assistance of counsel there, and his counsel here today drove very hard upon both of those points at that hearing. The final matter I wanted to mention, I suppose that indeed the motion to dismiss the appeal, I was informed by Mr. Rodak, had been denied rather than carried with the case. So there will be no further, nothing further presented.
Warren E. Burger: Is he still a fugitive, if you know?
Douglas M. Becker: Well, of course, we have a factual dispute as to whether he's a fugitive.
Warren E. Burger: Well, is he incarcerated or not?
Douglas M. Becker: He is incarcerated in Colorado.
Potter Stewart: In another state.
Douglas M. Becker: In another state there is--
Warren E. Burger: --for another offense.
Douglas M. Becker: --For a different... as a matter of fact, for revocation of probation up there, if you can believe it. He got up there and apparently committed an offense, was on probation, got revoked, he's in the Colorado penitentiary. There's a detainer on him from the State of Texas to be returned to do his time after he's through there. Thank you.
Warren E. Burger: Do you have anything further, Mr. McCutcheon?
Robert D. McCutcheon: One brief point, Your Honor. I don't want this Court to leave with the impression that in all probation revocation cases the only way to get the probationer into court is on an arrest warrant with a predetermination by a judicial magistrate for probable cause. Section 8(a) says, "At any time during the period of probation the Court may issue a warrant for violation of any of the conditions of the probation and cause the defendant to be arrested. " "It then says, any probation officer, police officer, or other officer with power of arrest may arrest such defendant without a warrant upon the order of the judge of such court to be noted on the docket of the court. "
Byron R. White: Well, it's upon the order of.
Robert D. McCutcheon: Order of the Court. But that--
Byron R. White: That's a considerably different kettle of fish than having the decision to arrest made by an officer of the law independently of the court.
Robert D. McCutcheon: --If it's done in the ordinary sense that we think of an arrest warrant being done, that is, upon an affidavit with the information--
Byron R. White: Arrests are made on warrants that are issued ex parte all the time.
Robert D. McCutcheon: --I understand, but they also may on arrest warrants under Texas procedure. They have to be made on a sworn complaint or other affidavit and then the arrest warrant can issue. Here there was nothing more than the probation officer telling the judge, Danny Vincent was D.W.I. I want him brought before the court. The court considered that and ordered a warrant.
Byron R. White: Is that interchange between the probation officer and the judge in the record?
Robert D. McCutcheon: It is not. The only thing in the record--
Byron R. White: How do we know what happened between them?
Robert D. McCutcheon: --The only thing we know is what the order says.
Byron R. White: At least it's perfectly clear, though, that the probation officer did not act on his own.
Robert D. McCutcheon: That's right.
Byron R. White: In Morrissey the question was whether if you're going to administratively detain a man and make the administrative determination, and bind him over, you're going to have to have whatever Morrissey said. But here the probation officer went to court.
Robert D. McCutcheon: That's correct. I just didn't want the Court to get the idea that this was simply a standard straight arrest warrant type of situation. I have nothing further.
Warren E. Burger: Thank you, gentlemen. The case is submitted.