Earl Warren: Number 178, Ben W. Fortson Jr., Secretary of State of Georgia, appellant, versus James W. Dorsey et al. Mr. Rodgers.
Paul Rodgers: Mr. Chief Justice.
Earl Warren: Mr. Rodgers.
Paul Rodgers: May it please the Court. Now this question right here, this case concerns a question involving a small provision of the Georgia Senatorial Reapportionment Act. The provision provides that each Senator must be a resident of his own senatorial district and shall be elected by the voters of his own district, except that the senators from those senatorial districts consisting of less than one county shall be elected by all the voters of the county in which such senatorial district is located. So the effect of that is, is that the Senatorial Reapportionment Act divided Georgia into 54 senatorial districts. That meant and this division was done according to population, that meant that seven of Georgia’s most populous counties were awarded 21 senators and the districts within those counties were carved out according to populations. However, under this provision here, with the exception of this provision which the District Court invalidated, those 21 senators had to run county at large. They had to be residents of their districts within the county, but they had to run county at large. Now the plaintiffs sued to require these senators to run only within their districts in the seven most populous counties. The District Court determined in effect that the combination of multi member and single member districts in the same legislative house was per se unconstitutional. Now this decision came down prior to this Court's decision in the Reynolds versus Sims and then in the Lucas case, which was the Colorado Apportionment case. As the Court well knows there's language in there which indicates that the combination of multi and single member districts is not per se unconstitutional, but that is all the record contained in the lower court is just the fact this method of election and that was the finding of the District Court. Now --
Arthur J. Goldberg: (Inaudible)
Paul Rodgers: Well, the reason for it is, it is historically in Georgia. In fact, I don't know if any exception of this rule, but Georgia has always had its legislative members represent at least a county, an area at least as large as a county. In other words, Georgia has always pursued the county unitary approach. Now we don't mean by that, we're not trying to say that a county is analogous to a State or anything like that. All we say is, is that county government itself just by virtue of its mere operation over a period of years works a certain solidarity into the county constituency, which Georgia believes, and many other states believe too apparently, is worthy of reflection in the general assembly. Now back before Baker versus Carr, one of the old systems of apportionment, the House of Representatives was -- there were various representatives assigned to each county. The more populous county had three, the less populous two or more. Well, of course that wouldn't stand up according to the voting point of population. The Georgia Senate, the old Georgia Senate, each district was composed of three counties, with the exception of Fulton. So it's been traditionally, historically in Georgia to rely upon the county as a basic unit of representation.
Arthur J. Goldberg: Now the representation (Inaudible)
Paul Rodgers: That's right. Now the purpose in your seven most populous counties of having districting is to ensure a disperse of Senators throughout the county. If you didn't district those more populous counties, then conceivably all the senators could come from one part of the county. And so, the district didn't require each one to be a resident of each district, to ensure they disperse, but nevertheless they run county at large.
William J. Brennan, Jr.: (Inaudible) and three districts each of 10,000, there would be three representatives.
Paul Rodgers: That's correct.
William J. Brennan, Jr.: One from each district that are elected by the 30,000.
Paul Rodgers: That's correct. Yes, exactly.
Arthur J. Goldberg: (Inaudible)
Paul Rodgers: That's correct. Yes sir.
Potter Stewart: On the other hand, if he gets the entire vote in his own district in Justice Brennan's example, if he gets all 10,000 votes in his district, he would lose if everybody in the other two districts (Inaudible)
Paul Rodgers: That's correct.
William J. Brennan, Jr.: It could work the other way around, he could lose all 10,000 in his own district and yet by the 20,000 of the other two were elected.
Paul Rodgers: That's right. Yes sir. Now --
Earl Warren: (Inaudible) district counties?
Paul Rodgers: Yes sir, it's a --
Earl Warren: How were they elected?
Paul Rodgers: They are elected county at large. Now of course, that the Georgia House is before this Court, just on the last month in the case of Toombs versus Fortson and of course that, the Georgia House is now under a Court order to reapportion. Now under the present system, you have this three, two, one, your more populous counties have three representatives and they run county at large, but they don't run from districts. They could all come from the same part of the county. And then your lesser populous counties have two each and then the still lesser populous have one each, but you don't have representative districts; they run county at large.
Tom C. Clark: (Inaudible) that I see in the record here and that the application that was made to the legislature, this system would have been changed, is that correct?
Paul Rodgers: Yes, I think there's an excellent chance of that. Now we pushed before the District Court the very definitive thing about whether you shouldn't or you have got obvious legislative remedy, but of course that's the Colorado case that's decided for this Court and of course we've dropped that, because of course that showed there was no more water in that theory. However, I think of course there's a chance for having a legislative solution is very good. In fact, the plaintiff or the plaintiff in this case McIntyre is a State Senator and I think it would be an excellent chance. That's one of the things we said was, why go to court? Why don't you pursue your legislative remedy?
Potter Stewart: Was there any Bill then introduced?
Paul Rodgers: No sir, none has been introduced and that's also in the record. We had two affidavits in there showing that no Bill has ever been introduced in either House to do it. So there's been no effort made and therefore no failure in here. Now on this part about the -- about the election county at large, we do not feel that there's any mathematical evaluation in the vote, because while a person who say residing in Fulton county has the right to vote for seven senators and he has seven people representing him en banc, his influence theoretically upon any single senator is seven times less than anyone in the rural or one of your lesser populated districts where everyone is represented by a single Senator. And to appeal that mathematically it balances out, of course the advantage of being represented by a single Senator is that you are part of a smaller constituency. And the advantage of being represented by seven Senators is or the disadvantage of being represented by seven Senators is that you are a part of a larger constituency, but this balances out mathematically. And of course, that's the whole question, so there's no question in this case about the 54 additions now being apportioned according to population. Now the second thing is, is actually we think from a mathematical point of view, it works even this practice of Georgia's election standard even less discriminatory, permit within permissible standards that will have then having 54 single member districts. For instance in Fulton, county to give you an example, we have seven senatorial districts, which we say are substantially equal, but of course you can't get them exactly equal, so contemplating the district. You have the district that has the most population that is a little under representative and the district that has the least population is a little bit over represented and of course you have the varying degrees in between, understand we can get all this as permissible. But if you elect them by districts in Fulton county, so that means the voters in some districts have a little smaller, but permissible edge over those and others. However when you elect them county at large then every voter in Fulton county has an exactly equal vote. So that led to discrimination although permissible is completely taken out. Now this case subdivides into two parts. The first part is the combination of single and multi member districts within the same house. And the other part is, is the election with any county electing them county-wide. Now as to the first part, the record is very clear that the practice of combining single and multi member districts in one house has been done throughout the United States for a long period of time. Also, as I mentioned earlier, this Court's decision in Reynolds versus Sims and in the Colorado Apportionment case has especially approved that practice. And even when the Court -- even when this Court in the Colorado case was explaining why possibly the Colorado referendum, which favored something other than population. The reason that failed was because that the people may not want to vote in a system whereby the more populous counties in Colorado would have to elect a large number of legislators. The Court was nevertheless careful to point out that we are not intimate that apportionment schemes which provide for the at large election of a number of legislators from a county or any political subdivision are constitutionally defective. Rather, they would merely point out that there are certain aspects for electing legislators at large from a county as a whole that might well make the adoption of such a scheme unresolved with many voters residing in multi member counties. Also, this Court in those cases has approved the practice of using political subdivision lines in drawing legislative districts. Also, this Court as recently as the 17th of last month based on the decision in Scranton versus Drew, the three-judge Court decision and you know, the State of Pennsylvania has somewhat of a similar apportion of this, although it's not as consistent as the Georgia plan. Now in the Pennsylvania case, Pennsylvania is saying, this is only the House of Representatives, the same that the senate only has single member districts, but in Pennsylvania, they have taken a county and they have divided with the most populous county within 30 districts and within that county, some districts had two members and some of them more. Now in Scranton versus Drew found that per se unconstitutional, but of course, you have constituency you have there in Georgia. Well in the mean time, after that stage was made the Pennsylvania Supreme Court in Butcher versus Bloom also determined that the Pennsylvania legislature did not measure up the constitutional standards, because of population disparities. But in that Butcher versus Bloom, the Pennsylvania Supreme Court found out the combination of single and multi member districts was not per se unconstitutional. And that -- and that you could well have it together if done properly on a rational basis without population disparities. Now, because of the willingness, the willingness of the Pennsylvania Supreme Court to assume the chore of bringing the Pennsylvania legislature up to constitutional standards, this Court based here in Scranton versus Drew and gave the Pennsylvania Supreme Court the green light to rectify the situation in Pennsylvania. Now as to the election as the second difference about the election at large within the county, as the Court well knows that we signed our brief here, many municipalities in the United States elect their Councilmen or their Alderman at large and at the same time require these Councilmen and Aldermen come from various parts of the city. The city that having been divided into wards, a city that we cite particularly is the City of Atlanta and the City of Atlanta has enjoyed as this Court well knows a moderate and racial relationship also the city of course is very progressive. And one of the reasons why the city, we believe has done so well is because the Alderman of the city has had to run city-wide and they have had a city-wide approach to problems and if we think that if that works well in the City of Atlanta, it works well in other cities of the United States. If there are no debates in voting strength that we see no reason why it should not work the same way in electing the Fulton county delegation. Now these cases, this case here involves the interpretation of the Equal Protection Clause. Now the Equal Protection Clause has been historically and traditionally interpreted to this Court as having a wide latitude for state action and of course, I won't go into detail of the cases, but of course this Court is familiar with Norvell versus Illinois, which is the case filed in Griffin versus Illinois. In Norvell, the plaintiff complained that he should be released, because he cannot have a case reheard, because the court reporter died and there was no transcript available. And so the -- this Court determined in an opinion by Justice Douglas I believe that they -- that the -- that the rough accommodation, accommodations made by the government did not violate the Equal Protection Clause of the Fourteenth Amendment unless the lines drawn are hostile and invidious. That was a 1963 decision which very recently has shown to play the latitude that a State has under the Equal Protection Clause. The Court -- the Court is also familiar with the case in McGowan versus Maryland wherein it stated a statutory discrimination will not be set aside if any state of facts reason that maybe conceived to justify. Now on this county at large election, we believe that because of the fact that there is at the counter effect that reflects a fairly solid unit of political thinking that it is a rational approach to require a representative elected county at large. Now in the brief, the appellees also comment upon this matter of submerging certain elements within the constituency. They say that in Georgia, a senatorial district the average is about 73,000 population. They say to require the at large election of these more populous Counties is -- submerges certain groups to certain interest within the more populous counties, that these groups are identifiable so they say and that they should have their own personal representative in the General Assembly. So this thing about submerging various interests of minor political parties and so forth, that submerge it can occur just as easily in single-member districts as it can in your plural-member districts. For instance, in California, California has a Senate composed of 40 members and the average population for a Senate member is 392,000, almost 393,000. Now obviously, as California -- I don't know what the situation is out there apportionment wise, but if California were to divide the State into 40 single-member senatorial districts and require one member to come from each, then no doubt, there would be no complaint. But obviously, within that 393,000 there have been many minor parties, many view points and so forth merged. We do not believe that, that approach is significant, because we believe the two criterion which this Court has thus far required is first, that it should be a rational basis, because this cannot be some crazy – affair with no rationality. The lines cannot be drawn hostile and invidiously, such as they were drawn in the Gomillion case whereby the City of Tuskegee city limits were redone I think in a 28 sided figure to exclude the Negro population here and there. That it must be -- the first is it must be rational, we believe it says. Secondly is, that it he must not debase the value of any vote and we believe that we have shown that the system here does not devalue any vote, that the control of the Georgia Senate is in the hands of the majority of the people of Georgia, if they are dissatisfied with this system, they can change it anytime. Now we believe here that what this case presents is nothing more than a political debate, which addresses itself to General Assembly of Georgia and not to the Court, thank you.
Earl Warren: Mr. Hunt.
Edward F. Hunt: Mr Chief Justice, members of the Court. If it pleases the Court, the appellees in this case feel that they can state their basic premise quite succinctly. We say merely that if a ballot cast by a citizen of the State of Georgia for his choice as his state Senator is not equally weighted and is not as directly influential toward the election of the candidate of his choice as a ballot, which is cast by another citizen of the State of Georgia, then the former citizen has been discriminated against and a preference has been given to the latter citizen.
Arthur J. Goldberg: (Inaudible) within the lot of districts in Fulton County and at least Fulton County (Inaudible) number of representatives based upon population, would that be a good approach?
Edward F. Hunt: Mr Justice Goldberg, I think our argument would be the same, because then we will come to a sub issue, which is the submerging of minority racial or minority political parties, which we feel is a subsidiary issue in this case. We don't feel that it's a main issue in this case.
Arthur J. Goldberg: Does that mean that any state is divided (Inaudible) districts into new districts cannot solve the problem by just giving additional representation?
Edward F. Hunt: No sir. I don't -- I don't think it goes that far. I think it is subsidiary to the main point, which we have in our case and it is a valid subsidiary reason. It is not of paramount importance, but it is a valid underlying reason and I am not sure that this Court should or would go as far as to say that this is a constitutionally protected right at this time, but we feel that we should mention it to the Court however briefly, for what persuasiveness it may have, if that answers your question, sir. If it pleases the Court, the situation I have described that one citizen's vote would be weighted greater than another citizen's vote and one citizen's vote wouldn't be as directly influential and toward the election of the candidate of his choice would obtain today in Georgia where if not for the fact that we filed this suit attacking Section 9 of the Senatorial Reapportionment Act of 1962. We maintain that the decision rendered by the United States District Court below was correct and we of course urge here that that decision be affirmed. Now in our brief at page number 5, we alluded to what I would like to term the negative approach to the invidious discrimination we claim. By the negative approach, I mean that we showed in our brief how few voters from foreign districts within the same county could combine to defeat the popular choice of the voters within a given senatorial district, which itself was within a multi district county. Very briefly, senatorial district number 34 and Fulton county Georgia is one of seven senatorial districts in that county. There are 82,195 people in that district. If every one of them in their absurd, I think the absurd circumstance, which we describe that every single one of them voted for the same candidate to represent that district as a State Senator, then the votes of only 18% of the other district, so the voters in the other districts within Fulton county could nullify of that unbelievably unanimous choice. Now the mathematics are quite simple, there are approximately 475,000 people in the other six districts in Fulton county, Georgia. 18% of 475,000, if my mathematics is correct is approximately 85,500, which means that even if they all voted for the same man and he was unbelievably popular, he could be nullified by only 18% of the other people in the county. Now this is in the brief and I will take no more time with it. I would like to show to this Court in oral argument today the other side of the coin. I would like to show the court what it takes, what large number of people it would take to affirm the popular choice of these people in a given senatorial district within a multi district county. And for the purposes of this illustration, I would call the Court's attention to the map which is at page 25 of the record I believe. I would like, if it pleases the Court to contrast the treatment received by the voters in senatorial district number 12, which contains the exact same geographical boundaries as Dougherty County, Georgia, with the treatment received by the people in senatorial district number 40, which is one of the seven districts in Fulton county. Now these -- I have chosen these two different senatorial districts, number 12 in South Georgia and number 40 in populous Fulton county, because they are virtually equal in population. In district number 12, there are 75,680 voters, in district number 40, there are 74,834 voters. Now both of these districts of course are in the same state. The people in these districts are entitled to the same equal rights. The same State Law applies to both classes of people, but we will demonstrate that they are being given different treatment by virtue of Section 9 of the Act we have attacked. Now in senatorial district number 12 in Dougherty County, if 38,000 people got together and voted for the representative of their choice, 38,000 people out of approximately 75,000 would constitute a bare majority and that bare majority would directly elect their Senator and he would become their Senator and be seated in the General Assembly. Now in senatorial district number 40 up in Fulton County suppose 38,000 people chose the same representative there, he would not become their representative, because the choice of the 38,000 people in senatorial district number 40 in Fulton county would depend upon what the 480,000 other people within Fulton county, Georgia decided to do. In other words, if everybody in Fulton County decided that they would vote in this race before the majority choice of the people in senatorial district number 40 was brought to fruition, 240,000 other people from foreign districts within the same county would have to concur in the choice of the majority of the people in senatorial district number 40. Now this means and we ask the question why should 38,000 people in South Georgia, in Dougherty County be able to constitute a simple majority and elect their Senators when 38,000 people in Fulton county in North Georgia have to depend on the whim, caprice, prejudice, or what have you of almost 250,000 other voters before their choice will be recognized and before their choice will be seated in the State Senate. We maintain that this difference in treatment is the basic --
Byron R. White: (Inaudible) also has a chance to be part of the 240,000 and they are all -- and they are voting for several senators rather than one.
Edward F. Hunt: Yes. Yes, sir.
Byron R. White: So, it maybe that while his vote on Senator X might be overridden by the other 240 of the next Senator, he will be part of the overriding vote.
Edward F. Hunt: That is a theoretical possibility.
Byron R. White: Well it's no more theoretical than yours?
Edward F. Hunt: I say it is – pardon me, maybe I did not understand Mr. Justice White --
Byron R. White: My point is still more theoretical than yours?
Edward F. Hunt: No sir, it is not -- it is not more theoretical than mine. And this could happen is my answer to your statement, it certainly could happen. Now in our motion to affirm, which we filed in this Court and again in our brief, we chose to quote the language of Mr. Justice Douglas in Gray versus Sanders and that language being that once the geographical unit for which a representative is to be chosen has been designated, then everyone who participates in that election should have an equal right of participation and an equal vote regardless of their race, sex, or regardless of where their home site is where they reside within the geographical unit. We emphasize this case on two occasions, because we thought that the language was significant.
Potter Stewart: First Mr. Hunt, the answer that you get in this case as in so many cases depends upon the question you ask and it could -- this could be looked upon as a policy by Georgia to have the geographical unit, the minimum geographical unit, a county you said, a county and in these larger counties to have voters represented not by one, but by seven representatives and to guarantee that those seven come from different parts of that county, but to have the whole county elect him and that would be your geographical unit. So this language quoted on page seven of your brief here would precisely fit this situation if you think of this system in those terms, isn't that correct?
Edward F. Hunt: Mr Justice Stewart, it may be correct and I would think it would be correct, were it not for the fact that this is coupled with a difference in treatment between the two classes of senators. I think you have got to view --
Potter Stewart: And the other is --
Edward F. Hunt: – the different treatment being given to the two classes of voters, excuse me, along with the language which we've quoted from Gray and I feel that after you have done that, then the invidious discrimination of which we have complained comes through and is recognizable. I would say that if that language, which we have quoted from Gray versus Sanders is not wholly dispositive of the issue and we feel that it is dispositive of the issue and should dispose it in our favorite. If it is not wholly dispositive of the issue then it certainly must be given great weight toward the decision in this case, because it certainly is not inappropriate. I think it certainly has to apply to our case. We feel that, if it pleases the Court that in this Court's recent decisions in Gray and in Wesberry and in Reynolds, that this Court has dedicated itself to the proposition of one man, one vote. Now our Court in Georgia, the Federal District Court in Toombs versus Fortson and again in Norvell case expressed this concept a little bit differently. They said that the essence of representation and we have quoted it at page 5 of our brief, I believe, the essence of representative government is that choosing of the representative by those he represents. Now we feel that Section 9, by allowing foreign districts within the multi district county to nullify the choice, the majority choice of the voters in a given district denies this essence of representation. We say that if this Court should reverse the decision of the District Court, then there will be a million and a half people in Georgia who live in the most populous multi district Counties, who will be partially disenfranchised, because their vote will not directly count toward the election of their State Senator. I will take just a few more minutes to rebut some of my brother's contentions. The State of Georgia, the Secretary of State has argued that political autonomy of the Counties has been historic in Georgia and this should be given credence when they draw up any sort of reapportioned legislature. Our answer to that is, of course, that Counties historically have never been known -- have never been recognized as sovereigns. They are mere agencies of the State. They are a convenient method of administering a sovereign such as the State of Georgia, which is tremendous as I believe it's the largest state east of the Mississippi. This is the reason for the county. A county standing by itself has no sovereignty and we think that the decisions of this Court and the decisions of many legal writers will bear this out. We also would point to the fact that this Court in Lucas versus the General Assembly of Colorado examined a situation where the people of the State of Colorado, if my memory serves me correctly, chose a plan, which emphasized and took into account natural boundaries, political boundaries, and the history of the State of Colorado. And even though the voters chose that plan over an alternative plan, which they might have chosen, this Court nonetheless, on the ground that one house under the plan would be malapportioned, invalidated that plan. Therefore, I don't think that the county's argument with regard to electoral homogeneity or political autonomy of the county is valid. The State has also argued at page 18 that the Fulton County voter is part of an electorate. Well this is just the very thing in his brief, which we are trying to have invalidated. The Fulton County voter or our clients in this case, don't want to be part of an electorate. They want a whole vote for a whole man. The reasons that underlie that are that if you elect county at large as I think this Court pointed out in Lucas, there is no identifiable constituency, the people are not responsive. The representative is not responsible for some identifiable constituency. He is responsible at large, but nobody can really put their finger on him and say, “You are my man and you are not representing me the way I thought you would represent me when I cast my ballot for you.” And the representative can very well say or wouldn't say to the voter, but he could smile to himself and say, “So what, this man is submerged in the entire county and as long as I can satisfy the entire county, I don't have to worry about a constituency. I'm one of seven of the large constituency.” This is our argument against that --
Potter Stewart: It seems -- don't you -- don't you envision the possibility that if the legislature had done it the other way, that too could be attacked, because on the basis that the legislature had determined that Fulton county was entitled to seven representatives and therefore, I as a resident of Fulton county, I'm entitled to vote for all seven representatives.
Edward F. Hunt: It might have been.
Potter Stewart: And your system would allow me to vote for only one representative.
Edward F. Hunt: I think there was --
Potter Stewart: -- or as a resident of Fulton county.
Edward F. Hunt: Yes there was a case in Brooklyn similar to that, was there not, where you could vote for two congressmen in the recent New York case I believe --
Potter Stewart: My only suggestion is, that if the Court or the legislature should decide this in your favor then it would be subject to that kind of constitutional attack.
Edward F. Hunt: Well, these questions admit of varied attacks. We say this, that we think that the overriding, the overriding disability of this statute, the overriding disability is the difference in treatment, which is accorded to two different classes of voters in the State of Georgia. This is the thing that the District Court seized upon and this is the rationale of their decision. Just for a moment --
Arthur J. Goldberg: (Inaudible)
Edward F. Hunt: Well --
Arthur J. Goldberg: (Inaudible)
Edward F. Hunt: That's right. It would be uniform treatment you wouldn't be establishing two different classes.
Arthur J. Goldberg: (Inaudible)
Edward F. Hunt: That's right. I hadn't thought of that feature of that --
Potter Stewart: That would be true of course in any amount -- completely malapportioned legislature. You have the same right as everybody else in your district.
Edward F. Hunt: Yes sir, but this is not a question, we concede that the legislature here is not malapportioned --
Potter Stewart: Oh yes –
Edward F. Hunt: So that question is not before us. That's another problem which we don't fortunately have to reach in this case. The only other thing I would like to say is that Mr. Rodgers has argued that the court below said that combinations of multi and single member districts were unconstitutional, I don't read their decision that way and I don't see anything in their decision to warrant that. They didn't mention multi districts and single districts as such in their decision. If I could call the Court's attention to page 44, the real decision of the District Court below was that the statute causes a clear difference in treatment, accorded voters in each of the two classes of senatorial districts. It is the same law applied differently to different persons. And then, they went on later to say that they had decided in great -- they had looked at this problem in Toombs and this Court, this Honorable Court had looked at it in Gray and their reasons for deciding it was the essence of representation, which is the quotation which we used and put in our brief. If it pleases the Court, I have nothing further.
Paul Rodgers: I have no further arguments, Mr. Chief Justice.


Warren E. Burger: We will hear arguments first this morning in number 76-5856 Holloway against Arkansas. Mr. Hall you may proceed whenever you are ready.
Harold L. Hall: Mr. Chief Justice and May it please the Court. There is one question presented, one point of law presented to the Court for consideration today and that is whether the petitioners were denied effective assistance of counsel, but although the trial court appointing a public defender to represent three defendants in the same trial over their objections. Prior to the trial a motion for a severance and separate counsel was filed by the public defender with the Court and it was overruled. Before this third trial on the day of the trial, counsel for the petitioners made over a motion which was denied. The trial started and during the direct examination of one of the petitioners, another petitioner who is there at the counsel table objected to a question to which the Court overruled and said your attorney will answer any, make any objection on your behalf. At that time out, the public defender was asking the witness a question which the witness also happens to be a codefendant and he was unable to make an objection on behalf of the petitioner Holloway because he was also his attorney and attorney for the witness.
Warren E. Burger: Was there any difference in the general nature of the defense as between and among these defendants?
Harold L. Hall: Well, sir prior to going to the Court there was, but then when the Court said you will represent all three, you cannot cross-examine your own witness which happens to be a defendant. I had to change my plans, and I could not cross-examine my own witness to bring out incriminating evidence against he or the other two codefendants.
Warren E. Burger: Did you make any proffer that the witness was inherently a hostile witness and asked for the cross-examination under the hostile witness rule?
Harold L. Hall: No, sir because he was my client.
Warren E. Burger: No.
Harold L. Hall: All three.
Warren E. Burger: That would not necessarily bar that proffer --
Harold L. Hall: Yes.
Warren E. Burger: As an explanation of why one witness might be hostile with respect to another?
Harold L. Hall: But I have been admonished by the Court not to cross-examine my own witness, I could not cross examine, these are exact words, well, you have no right to cross examine your own witness then he told me to proceed like you told me to.
Warren E. Burger: What was their defense that they had --
Harold L. Hall: They had alibi defense. They testified over my objections, I mean, over my advice and denied being there, which I could not state to the Court what they have told me in confidence. In discussing the case with them, I talked to each one individually as they requested and so anything one of them told me was out of the hearing of the other two.
Speaker: Mr. Hall, do I understand that the respective alibi defenses were not incompatible, however?
Harold L. Hall: No sir.
Speaker: In Arkansas is a codefendant then permitted to cross-examination of another defendant, when he takes the stand?
Harold L. Hall: If they have separate counsel, yes sir. This is the first instance that come across where I have been appointed to represent three over my objections where there was a conflict of interest in my opinion.
Speaker: But it is clear that if they have separate counsel they may (Voice Overlap)
Harold L. Hall: They can, yes sir. The Court told me to proceed as he had told me to, we went on, and I was abiding by the ABA standards that a lawyer should decline to act for more than one defendant if there is a possible conflict, but on this case a public defender, we had to go ahead and take the three and did not make a motion to the Court and at no time did the Court ever asked me to eliminate, I mean, to find what the conflict of interest was.
Speaker: Mr. Hall do you want the per se rule or you are asking for that one counsel may not represent more than one codefendant?
Harold L. Hall: Well, sir if there is no conflict, at the attorney's investigation there is no conflict I have represented more than one since that time.
Speaker: What happens, how many public defenders officers do you have in Little Rock, just one?
Harold L. Hall: I just have one and three others to handle the caseload for the full district, two counties.
Speaker: Does that mean that if you represented one of these codefendants that your office could not represent any of the others?
Harold L. Hall: Well, there are only being three public defenders in the office or five if they are all mingled together, we have one secretary to help with it and that makes it hard to keep one's file privilege from the other.
Speaker: So it would mean that the Court would have to go outside your office to appoint for the codefendants?
Harold L. Hall: Yes sir.
Speaker: Go back to the older system?
Harold L. Hall: Yes sir.
Byron R. White: But you do I take it insist that if the attorney requests it that he should be relieved of a joint representation?
Harold L. Hall: Yes, sir I think for sure.
Byron R. White: That is, I mean, to that extent it is per se rule you are submitting?
Harold L. Hall: Yes, sir.
Warren E. Burger: Should it be just a request or a request accompanied by a representation such as you did make here that there were inherent conflicts that would impair the defense of each?
Harold L. Hall: Your Honor I filed a written motion and two oral motions and each one of the defenders at the trial got up and requested a separate counsel and a severance.
Harry A. Blackmun: But, what the Chief Justice asked whether you must also say that there is a conflict in your opinion?
Harold L. Hall: Yes, sir, there was and I --
Harry A. Blackmun: And must you then go on and detail what the conflict might be?
Harold L. Hall: Well, the Court did not ask me and told me to proceed on, like he had told me not to cross-examine my own witness, he did not ask me what the --
Harry A. Blackmun: Well, I know, but in this case what do you think the rule should be? You should have to reveal what the conflict is or that just a representation, is not it?
Harold L. Hall: No sir, I think it should be one separate attorney for each defendant because if the attorney the reveals what his clients told him in confidence to Court or anyone then he loses his respect from his client and freedom where he would go in and converse with him further in the matter.
Warren E. Burger: Would you have to go that far in this case pursuing Mr. Justice Blackmun's inquiry. Is it not sufficient for you to persuade the court that in these circumstances it was an abuse of discretion after you had represented that a conflict existed. You said that you have since then represented codefendants?
Harold L. Hall: Yes sir, where there has been no conflict of interest to each one and that is for --
Warren E. Burger: And was not that enough, if you show a claim and abuse of discretion by the trial judge?
Harold L. Hall: And this when he had his mind made up Your Honor with what was going on and I had to go as the Court said or be in contempt.
Speaker: Mr. Hall are funds available in Arkansas for the retention of outside counsel in a situation like this?
Harold L. Hall: Your Honor, at the present time we are paid a fee on each case which we try or appointed on which goes into a fund. When the fund builds up they pay our salaries. That fee is $ 350 maximum, with a $100 for investigation, if we use investigators. If they wish to appoint three different attorneys they would not go to county, but it would go to counsels. They pay us (Inaudible) fee we still get one fee. They would if they had an additional counsel to be paid more, but we are paid only per case basis and it goes into the fund, then they pay your salaries, and all expenses that are there.
Speaker: And that fund would be available to retain outside counsels?
Harold L. Hall: No sir where the order --
Speaker: Yes, if your motion had been granted, where would the lawyers come from and who would pay them?
Harold L. Hall: They would come out of county general fund.
Speaker: General fund.
Harold L. Hall: Which they have a certain amount set aside per year.
Speaker: Well, that answers my question.
Harold L. Hall: Yes, sir.
William H. Rehnquist: Mr. Hall, as I read the State Supreme Court's opinion in this case, they found there was no prejudice resulting from the failure to appoint separate counsel. Do you attack that finding or do you say that notwithstanding that finding you are entitled to a reversal here?
Harold L. Hall: I could not show within the prejudice without revealing the information that my clients had told me and I could not tell the Court that or to bring it out, that they have told me contrary to what they testified on the stand.
William H. Rehnquist: How about telling the Supreme Court of Arkansas?
Harold L. Hall: Well, sir there was three men who come into this cafe. It had closed, they went into back door, one downstairs, one man stayed at the top of the stairs, two of the men went to the room where they were counting the money received for the day, and there they robbed them and two other men raped two other girls. Now, there was no testimony that the third man raped them. Just two of them, each one has raped twice and they testified by the same man, I mean same two. Now, there is a question as to who was at the top of stairs, and who was involved in the rapes downstairs. I had that information and I could not cross-examine --
William H. Rehnquist: But did you tell what you have said in response to my question just now, did you tell that to make that point in the Supreme Court of Arkansas when you were arguing?
Harold L. Hall: No sir because it was not in the record. I could not bring out from the witness as they testified.
William H. Rehnquist: Why can you bring it out to us in a way that you cannot --?
Harold L. Hall: But I have not mentioned any names.
William H. Rehnquist: Well, but could not you have done the same thing in the (Voice Overlap).
Harold L. Hall: I was just answering your question sir, where you asked me, now the judges did not ask for oral argument in Arkansas Supreme Court.
William H. Rehnquist: This was not orally argued?
Harold L. Hall: No, sir and they did not ask me the point and they asked me I would have explained like I had here.
Speaker: Mr. Hall, I am rather bothered the way my brother White is. You are presenting a constitutional issue here and that means that we have to evolve some standards. I take it in your colloquy with the other justices that you are really asking for a per se rule. Am I not correct this Court has never gone that far before, we certainly did not do it in the Glasser case?
Harold L. Hall: No, sir.
Speaker: But you feel this is the only way to handle it here?
Harold L. Hall: Yes sir.
Speaker: But only if the attorney demands a separate representation, representing that there is a conflict?
Harold L. Hall: Yes, sir.
Thurgood Marshall: And where the judge is --
Speaker: Is it enough on his demand.
Harold L. Hall: Sir?
Speaker: Is it enough fund if he already demands it, or do you think --?
Harold L. Hall: The attorney and the defendants also.
Speaker: Yes, but do you think you should come up with something more than an allegation of conflict?
Harold L. Hall: Well, if there was proof of -- I mean, you have to put on the confidential information of the clients, I do not think it should be to the trial judge.
Thurgood Marshall: Well, in this case the trial judge did not ask for it, did he?
Harold L. Hall: Did not ask for it and --
Thurgood Marshall: He did not ask for anything?
Harold L. Hall: No sir --
Thurgood Marshall: And if he had asked what you would have told him, what you told us?
Harold L. Hall: Yes, sir.
Speaker: But you see on coming back to standards, is it enough merely to make the request or must the request be accompanied by at least the proffer as the Chief was indicating and I would be interested in where you think the perimeters of this constitutional issue should be drawn?
Harold L. Hall: Well if there is a parole for proof it would have to be kept or the defendant's communication, his privilege communication to his attorney would be kept mute and it is hard for different trial judges, it is hard to one of them will discuss the matter and let something slip where normally he would not.
Speaker: Well, one way out would be this in camera here in before the judge and I take it, you do not go for that?
Harold L. Hall: No, sir. Not the trial judge and if there was a different judge. The judge is not hearing the case.
Warren E. Burger: What was to prevent you from representing to the trial judge with or without an invitation from the trial judge exactly what you have responded now without naming the names, that stating precisely what you have stated to us?
Harold L. Hall: I feel that the Court would remember that and some of its ruling there might be presence to want or -- may where he would be wanting which one was the one who stayed at top of the stairs.
Warren E. Burger: Somebody will remember it now if you get a new trial if you get what you are after?
Harold L. Hall: But we have still not mentioned any names. I was never asked whether the trial judge or the --
Warren E. Burger: My question to you now was ? why could not you make that representation to the judge, but declined to identify which person was at the head of the stairs and so forth, just as you have not disclosed that to us? Am I arguing to prevent you from doing that?
Harold L. Hall: No, sir.
Thurgood Marshall: But Mr. Hall the record does show that the first time any judicial officer asked you, you gave it?
Harold L. Hall: Yes, sir.
Thurgood Marshall: That was right here.
Harold L. Hall: Yes, sir.
Thurgood Marshall: And if you have been asked before you have to give?
Harold L. Hall: As he had posed (Inaudible) at this morning.
Warren E. Burger: It is not the role of defense counsel to be bashful in presenting these points in either this Court or a trial Court, do you think?
Harold L. Hall: No, sir.
John Paul Stevens: Mr. Hall, you did, if I understand the record correctly, you did represent it to the trial judge, you did not just ask for a separate lawyer. You did represent to them that you had conversed with the three clients and in your professional judgment there was a conflict of interest?
Harold L. Hall: Yes sir.
John Paul Stevens: You made that representation as a member of the Bar?
Harold L. Hall: Yes sir.
John Paul Stevens: So your rule that you asked for is one that would only apply where the lawyer puts his professional reputation on the line in that way?
Harold L. Hall: Yes sir.
Warren E. Burger: You have referred to the American Bar standards on this subject. In those standards is there not also a standard that if one public defender in a public defender office is presented with the problem that you had that then none of the members of that same staff should be on the case?
Harold L. Hall: That is right.
Warren E. Burger: Is that not true in your standards?
Harold L. Hall: Yes sir.
Warren E. Burger: In other words, for those purposes the public defender staff is treated just as though it were a law firm?
Harold L. Hall: One firm, yes sir.
Warren E. Burger: Very well, thank you Mr. Hall.
Harold L. Hall: Thank you sir.
Warren E. Burger: Mr. Purvis.
Joseph H. Purvis: Mr. Chief Justice and May it please the Court. The State of Arkansas here would submit that there are really, but two issues. The first is whether in fact a conflict of interest did exist here, and the second or broader issue is if the issue of conflict arises who bears the responsibility for making that decision. The Glasser decision of this Court in 1942 merely stated that ineffective assistance of counsel was given where an attorney was representing conflicting interest and the majority of jurisdictions in this country have held that it is not an imaginary conflict that is spoken off, but that it must be shown that there is in fact some real conflict, something more than a possibility of conflict. The State of Arkansas submits that the defense counsel here submitted a petition for separate counsel that stated merely that the ?possibility? of conflict existed. Prior to trial, the trial Court held a hearing on this motion in an effort to ascertain what if any conflict existed? We are not blessed in the record with a transcript of that hearing. However, the Court did find at the conclusion that there was no conflict. The --
Thurgood Marshall: Where is that told that there was no conflict where the judge said there was no conflict?
Joseph H. Purvis: The judge denied his motion for --
Thurgood Marshall: But where in the record is it that the judge said there is no conflict?
Joseph H. Purvis: I do not know that Mr. Justice Marshall, I do not know that the Court elucidated those exact words, but the trial court continually stood ready to hear evidence of some conflict, and there was none that really existed here. The defendants were not precluded any defense. They all alleged alibi defenses that were certainly not inconsistent. They testified to this effect. There is no indicia that the defense counsel could not have gone forward and made such a proffer. Now, the defense counsel has set forth some very nice standards dealing with confidentiality and lawyer confidences, but it seems to me that he overlooks the fact that number one - this case in particular involved no conflict, that he very easily could have outlined to the trial court, the general nature of the conflict and did not have to divulge confidential information to the court in order to show that a conflict existed, but apparently the defense counsel never made that impression or conveyed that to the court and the state would certainly submit that there was no conflict that existed here. Counsel made a great deal of the fact that he was unable to cross-examine his witnesses. Indeed there was nothing to be gained by the cross examination of it.
John Paul Stevens: Mr. Purvis, let me ask you question about the practical preparation for the trial. Supposing that one of the men was at the top of the stairs.
Joseph H. Purvis: Yes, sir.
John Paul Stevens: And the lawyer made the judgment that it would be better for that particular defendant to tell the whole truth; to explain that he was there, he was at the top of the stairs and the other two men were at the bottom of the stairs and did the other things. Could the lawyer in good and consistently with his obligation to the other two people, advise that defendant to take that posture at the trial?
Joseph H. Purvis: I think had defense counsel done so, sir, he certainly would have made a case of conflict and he could have merely outlined the --
John Paul Stevens: Could he have done that -- could he have done that while he was representing all three? Could he have said, ?I advise you,? who was the man at the top of the stairs, ?I think you ought to tell the whole truth??
Joseph H. Purvis: I think he should have gone to the Court when he perceived this conflict. That is the nature of the State's position that asking for an early hearing and explaining this without dealing into specific --
John Paul Stevens: But, in order to go to the Court, would he had not had found it necessary to explain to the Court that these men were really guilty. Would that not have been necessary in order to tell the Court about the problem?
Joseph H. Purvis: No sir, I think he could have gone to the Court and explained Your Honor, ?I have one of my three clients who wishes to testify and his defense is or the essence of his testimony will be totally antagonistic. It will be exculpatory and it will cast the shadow of doubt and try to thrust the guilt on the other two. I do not think he is divorced or has conceded that any or all are guilty. He is merely spoken of what his counsel will testify or what his client will testify. I think then if the Court knows this and I think certainly here had the trial Court known this, it would have granted the motion for separate counsel.
Thurgood Marshall: This would be before the trial.
Joseph H. Purvis: Yes, sir.
Thurgood Marshall: Well, what would have happened if that developed in the middle of the trial?
Joseph H. Purvis: I think if it develops in the middle of the trial and the State does not refute the position if at any time during the trial it can be shown that a conflict actually exists then I think the trial court has the duty to declare a mistrial if it is in trial --
Thurgood Marshall: And then what do you do with double jeopardy?
Joseph H. Purvis: Arguably, due to --
Thurgood Marshall: Yeah, it will be arguably?
Joseph H. Purvis: Yes, sir. It is a very grave danger here, but I think the Court would have no duty or no choice, but to declare a mistrial.
Byron R. White: But do you contend that the motion made at the opening of the trial which was a renewed motion was untimely?
Joseph H. Purvis: No, sir. I simply think that the --
Byron R. White: And you think the Court correctly said that the inability to cross examine a codefendant who wants to testify is an insufficient reason for a separate counsel?
Joseph H. Purvis: Mr. Justice White, there was no indication, and the court had no indication, the Court was not advised as to even the real nature of the potential conflict here.
Byron R. White: Alright, so your answer is no. I mean the court was told that the defendants were going to testify.
Joseph H. Purvis: He was told that there was a possibility yes, sir.
Byron R. White: Possibility or they got up and said they were going to testify it.
Joseph H. Purvis: Well, that was at the closure of the State's case, but the court had no information --
Byron R. White: Yes, that is right. That is when it was, but you do not say that that motion was untimely, do you?
Joseph H. Purvis: Not necessary --
Byron R. White: The Court did not say it was that he just denied it.
Joseph H. Purvis: That is right, because the court --
Byron R. White: And he said that apparently the inability to cross-examine is insufficient reason --
Joseph H. Purvis: Because the court had no information before that there would be anything that would be antagonistic or indicative of a conflict at that time.
Byron R. White: No, he did say -- the court said -- that is alright that they testified. There is no conflict of interest is what the court ruled.
Joseph H. Purvis: Based on the information that the court had at the time which was minuscule merely that there was a possibility of a conflict of interest.
Warren E. Burger: You do not think it would be an appropriate rule that a court would be obliged to accept the representation of a member of the bar if he tendered that as a member of the bar and as an officer of the court, that is not enough?
Joseph H. Purvis: I think Mr. Chief Justice that the trial court bears a very grave responsibility and any such decision such as this needs to be made by an independent authority. The State contends that the burden for bringing up conflict of interests certainly lies with the members of the bar, but it is the ultimate responsibility of the trial judge, the impartial independent trial judge to receive the information outlining the nature of the conflict and then to make a decision as to whether a conflict does in fact exist, if one does exist then I think the duty is to appoint separate counsel.
Thurgood Marshall: But there is no question that he did deny the right to cross-examine the other defendants?
Joseph H. Purvis: Yes, sir, but there was nothing.
Speaker: But he did.
Joseph H. Purvis: He did do that, but there was nothing to show that there was anything antagonistic and in fact their alibi defenses were entirely compatible.
Thurgood Marshall: I cannot reach at a conclusion as properly as you can because I do not know what information the defense counsel had and I submit, I do not think you do either, you do not know what he wanted to cross-examine all because he was never allowed to?
Joseph H. Purvis: No, sir, but this goes -- the State would contend again --
Thurgood Marshall: Do you know what he wanted to cross-examine on?
Warren E. Burger: But we do now, do we not, after his representations?
Joseph H. Purvis: I think we do now Mr. Justice Marshall, and I think that had defense counsel made the disclosure of this nature at the motion hearing, the court would have known.
Thurgood Marshall: And if he had been asked, he would have made it?
Joseph H. Purvis: Asked?
Thurgood Marshall: The first time any judge asked him the reasons that Mr. Justice Rehnquist and he admitted he gave him the answer until he stood here and said any other judge would ask and he would oppose counsel.
Joseph H. Purvis: Yes sir, but we unfortunately are not blessed with the record of them hearing on the motion.
Thurgood Marshall: But you are blessed with the record which says you cannot cross-exam?
Joseph H. Purvis: Yes, sir but --
Thurgood Marshall: We are blessed with that.
Joseph H. Purvis: Yes, sir and ? but we would say that there is nothing in there to indicate that the judge or anyone knew of any reason why our cross-examination would --
Thurgood Marshall: He was not interested. The judge says well, what did he say now, as I remember the judge said you know you cannot go, that is all he said. The judge did not give any reason to it, am I right?
Joseph H. Purvis: No, sir.
Thurgood Marshall: The judge said you cannot cross-examine your own witness?
Joseph H. Purvis: He said, ?You cannot cross examine your own witness.? That is correct.
Warren E. Burger: When he said that articulating the traditional rule about examining --
Joseph H. Purvis: I think that is what he was --
Warren E. Burger: His own witness --
Joseph H. Purvis: Referring to Your Honor because Arkansas had not adopted the uniform rules of evidence until July 01, 1976 which was approximately ten months after this trial.
Warren E. Burger: Does Arkansas and the state courts permit examination of a witness even when the witness has been called by counsel, if there is some representation of his being or her being a hostile witness?
Joseph H. Purvis: Yes, sir.
Warren E. Burger: It is the usual rule.
Joseph H. Purvis: Yes, sir.
Thurgood Marshall: Well, did that apply here?
Joseph H. Purvis: There was --
Thurgood Marshall: He says you cannot cross-examine.
Joseph H. Purvis: There was no --
Thurgood Marshall: So he denied in the right, did he not?
Joseph H. Purvis: Yes, sir at the time of this trial, Arkansas was operating under the old traditional rules of evidence that unless you could show or have the court declare your witness to be a hostile witness, you were not entitled to cross-examine your own witness. The court, it is our position, stood ready at all times to receive sufficient information to let it be able to declare him a hostile witness and to show that there was a conflict.
Potter Stewart: Your brother's point is that he was charged with representing that defendant, that witness.
Joseph H. Purvis: Yes.
Potter Stewart: And the last thing it would have been wholly inconsistent with his representation of that defendant for him to set out to cross examine him and show that he was a lier?
Joseph H. Purvis: Yes sir. If that is what --
Potter Stewart: So he was just putting in his claim as an impossible dilemma?
Joseph H. Purvis: There was --
Potter Stewart: He was representing that defendant, he just was -- it would have been wholly inconsistent with his defense of that man to cross examine him and show that his testimony was untrue, would it not?
Joseph H. Purvis: Yes sir, but apparently --
Potter Stewart: That was a dilemma that he points out to us.
Joseph H. Purvis: Apparently, we are not given and do not know and certainly cannot tell from the record, what line of defense, the defense would have taken. Had there been separate counsel or had they even been allowed cross-examination? There was nothing to show any --
Potter Stewart: But his point is that not that it was not allowed, but that forced as he was to represent all three people, he could not conscientiously cross-examine any single one of them which would have been damaging to his own client?
Joseph H. Purvis: Yes sir, but I think in order to do that you have to make a presumption that there is a conflict which would necessitate or give benefit from the cross-examination and there was nothing in the record to note that such existed at that time.
Warren E. Burger: Does Arkansas traditionally follow the rule followed in many places that if the client testifies falsely then counsel, even his own counsel was not pursue that witness in anyway, is that accepted in Arkansas?
Joseph H. Purvis: I cannot answer that Your Honor. I do not ? I believe that it is.
Warren E. Burger: But you do recognize that at that stage whatever flaws there may have been in the conduct of the defense counsel in not pressing the matter in the first instance, when he got into trial that he was presented with an extremely difficult set of alternatives, was he not?
Joseph H. Purvis: Yes sir.
Warren E. Burger: If he was going to try to help the man who was the lookout man at the head of the stairs and presumably that is the only man he was primarily concerned with.
Joseph H. Purvis: Of course then to under the Arkansas law the mere fact that he was at the head of the stairs instead of the actual rapist, would have had no baring on his guilt of the two crimes or the two charges actually three rapes because he was just as guilty as those who were --
Warren E. Burger: Well, that may be true as a matter of law, but a jury might have taken a different view for example and found that the lookout man guilty of lesser charges than finding assessed with the others, is that not so?
Joseph H. Purvis: That is true Your Honor, but here again we have the -- there is no indication that any of the defendants in this case had any or gave any inkling of ever choosing to confess and turn state's evidence or admit to any facet of this crime and the state would contend that were there some indicia in the record that one wish to do so.
Warren E. Burger: There are again when these three men had one common counsel, that counsel, the public defender was in pretty difficult position to go and negotiate with the prosecutor for a guilty plea on a lesser included offense for the man at the head of the stairs, is that not so?
Joseph H. Purvis: Yes sir, but there have been decisions from the various circuit courts that hold merely because the evidence is stronger as to one or merely because the defense counsel is precluded one particular line of questioning or defense that, that does not necessarily give rise to a conflict.
Warren E. Burger: Would you agree that the Arkansas Supreme Court did not explore these questions as extensively as they have been explored here this morning?
Joseph H. Purvis: Yes sir, and I think simply because the Arkansas Court did not have the information before it that this Court has.
Warren E. Burger: And did not have oral argument, is it not?
Joseph H. Purvis: No, sir they did not. In Arkansas oral argument is not a matter of course. It generally must be sought by the party who is the appellant or one of the two parties, they equally have the right to do so, but --
Speaker: Mr. Attorney General, I have understood you to say that none of these defendants confessed, but I thought Campbell did confess?
Joseph H. Purvis: No, sir I did not say that none confessed, but Mr. Campbell vehemently denied making the statement, committing the crime or ever having even been in the restaurant.
Speaker: But his confession was introduced in evidence?
Joseph H. Purvis: His oral statement, yes sir.
Speaker: Yes, and in that statement although he implicated the codefendants, their names were stricken, that is from the confession as introduced?
Joseph H. Purvis: That is true sir. And then he took the stand and vehemently denied as he had done at the Denno hearing in previous room.
Warren E. Burger: Should he receive -- should it occur that he would receive a new trial now, I suppose some of them may have opened themselves to charges of perjury in their original trial?
Joseph H. Purvis: Presumably so sir. Yes sir.
Warren E. Burger: At least it is a possibility?
Joseph H. Purvis: It is a possibility, but the charge of perjury is one that is rarely applied, or rarely tried in the State of Arkansas at any rate that not meaning to cast any doubt on the jury system or the system of the people in the State of Arkansas, but in the matter of such as this I think certainly they would be, if this court reversed I think certainly they would be retried for their crimes, but the state would once again contend that there really was no reversible error here because there was no conflict and if counsel might speak further as to the per se rule advocated by the Amicus and apparently by the defense counsel, state would reiterate that it whole heartedly opposes such because such a per se rule is premised on the idea or on the belief that there is conflict every time multiple defendants are represented by a sole counsel.
Byron R. White: Well, that is not what the contention is as far as I can say. He does not ask that there is any flat rule against multiple representation?
Joseph H. Purvis: I think in one of the Amicus Briefs --
Byron R. White: Well, you said -- you said that, you attributed the same here to your colleague here.
Joseph H. Purvis: Yes sir.
Byron R. White: I did not understand his submission in that way. His submission is that, that if the attorney makes a representation that in his view and his professional judgment there is a conflict then there should be separate representation, that is not a per se rule.
Joseph H. Purvis: Well, the State would oppose that rule as well Your Honor, because I think in addition to the other summary, it certainly places in the hands solely, in other words it divest from the trial court the making of a constitutional decision and it removes the trial court or divests it from the supervising protectionary power that it exercises as to the defendants --
Byron R. White: Do you think that trial judge should be entitled to require a counsel in supporting his judgment to reveal confidential information imparted to him by his client?
Joseph H. Purvis: Mr. Justice White I do not think that such confidence revelations are necessary in what a very, very few minuscule questions.
Byron R. White: How about answering my question?
Joseph H. Purvis: And yes sir, I think if necessary a counsel strongly believes that there is a conflict and it would necessitate I think Disciplinary Rule 1-104 (C) (2), believe it is would allow for that for the revelation of confidences when so ordered by the court.
Thurgood Marshall: Mr. Attorney General what is so wrong with an individual counsel?
Joseph H. Purvis: Oh! I see nothing that is wrong with it.
Thurgood Marshall: But the way you keep arguing, you keep resisting it, it seems like it is some (Inaudible).
Joseph H. Purvis: No, sir I do not. In fact I think certainly I know if I have --
Thurgood Marshall: It is good.
Joseph H. Purvis: It is good, but by the same token I do not think that you have done anything wrong. I do not think the constitution has been violated by the most representation until you can show some actual conflict and I would simply close by saying that the state's position as to what should be the rule as to the determination of conflict is outlined in the conclusionary part of our brief. Are there any further questions?
Warren E. Burger: Apparently not. Mr. Hall do you have anything further?
Harold L. Hall: No Your Honor.
Warren E. Burger: Thank you gentleman. The case is submitted.