Hugo L. Black: (Inaudible)
Heywood H. Davis: Mr. Justice Black, with the Court's permission, I'll reserve the minute or so of my time left.
Richmond C. Coburn: Mr. Justice Black, and if it please the Court. Before I state the position of the respondent in this case, it might be well for me to dispose of one or two matters that were -- that came before the Court in the argument of the petitioner on yesterday. In the first place, I think I should say that the dean of our law school out in Missouri, although he was called as a witness to testify before this hearing, was not a patient of Dr. Freeman. There was one other that --
Speaker: (Inaudible)
Richmond C. Coburn: That's right, Mr. Justice. That's correct but I want it abundantly understood because he is a highly regarded man in our state. One other thing that I think I might touch on very briefly is this. Some question was raised on yesterday as to how it was that this matter came to the attention of the Bar Examining Board. The record -- at page 66 of the record, if the Court is interested, shows that a Mr. Alexander, who was a member of the Boone County, that's Columbia, Missouri Bar, represented the State Board of Healing Arts, as it's called there, in this proceeding against Dr. Freeman. He took the precaution of calling Mr. Trombley, who is a young member of the bar in Boone County, knowing that Trombley represented two of the witnesses who were to appear before this Board including Mrs. Werheyki who is prominently mentioned in this record, saying that if anything was done with reference to these witnesses, he would like to know about it and Trombley promised him to do so, and Trombley testified that there were some things done but the only thing that had any relationship to the petitioner was the matter of Mrs. Werheyki and it was in that way that, after Trombley had received his telephone call, he reported the matter to Mr. Alexander and, apparently, that's the way it came before the State Board of Bar Examiners. I would like to say, if the Court please, that it's the respondent's position in this case that this record presents two issues of fact.
William J. Brennan, Jr.: Excuse me, Mr. Coburn.
Richmond C. Coburn: Yes?
William J. Brennan, Jr.: May I ask, how is the Board appointed? Is this -- do you have any -- the Integrated Bar, don't you?
Richmond C. Coburn: Yes, we do, Mr. Justice, and the Board is appointed by the Supreme Court of Missouri.
William J. Brennan, Jr.: For terms of office?
Richmond C. Coburn: Yes, for four years.
William J. Brennan, Jr.: How many members?
Richmond C. Coburn: Members of the bar?
William J. Brennan, Jr.: How many members of the Board?
Richmond C. Coburn: Excuse me, yes, there are five, as I recall.
William J. Brennan, Jr.: Five, from various parts of the state under law?
Richmond C. Coburn: Yes, they are. If I may say so, they are distinguished members of the bar. It is the respondent's position in this case that this record presents two issues of fact. One, whether the petitioner, Michael Zipkin, tried to intimidate a witness in the Dr. Freeman hearing and, second, whether the petitioner, himself, was a truthful witness when he appeared before the State Board of Bar Examiners. Both of these questions of fact were resolved against the petitioner by the State Board at their hearings.
William J. Brennan, Jr.: Can you tell us anything, Mr. Coburn, the scope of review by the Supreme Court?
Richmond C. Coburn: Mr. Justice, the --
William J. Brennan, Jr.: -- of the findings at that time?
Richmond C. Coburn: At the time that this matter occurred, this hearing was held, the scope of the review was none too well-defined so far as the rule of the Supreme Court was concerned that governed the proceeding, but I can tell you what happened. What happened was that this Board, not acting as a prosecuting body, but simply as a Board, had the power to subpoena witnesses, did subpoena witnesses including the -- well, all their six witnesses in all. They came and testified. Some were favorable to the petitioner, some were unfavorable to him. They made their finding which is reported in the record beginning at page 93, as I recall it and then, this finding was filed with the Supreme Court of Missouri. I think it is apparent that the Supreme Court treated the Board as a trial court. The Supreme -- in the Supreme Court, a motion for review was filed by Mr. Zipkin's then attorney because the findings of the Board were contrary to him found that he had not shown that he was of good moral character. The Supreme Court of Missouri had before it, when it made its determination and entered its judgment, the record -- the transcript of the record below, the motion for review, and the suggestions that were filed in support of the motion which were in the form and nature of a brief. They did not hear the witnesses, but they had the transcript of the evidence. They had a brief in support of Mr. Zipkin's position and under those circumstances the Supreme Court entered a judgment affirming the action of the Examining Board.
William J. Brennan, Jr.: Well, would it be fair to say that if treated as the lower court, then --
Richmond C. Coburn: Yes.
William J. Brennan, Jr.: -- then I -- that review would be on the part of the Supreme Court, only an examination of the transcript will see if there is evidence -- substantial evidence or something to support the findings?
Richmond C. Coburn: Yes, the Supreme Court of Missouri treated it that way. The Supreme Court held that the findings of the Bar Board were supported by competent and substantial evidence so that, really, it was as if this were an equity case that came up from the trial court to the Supreme Court of Missouri and was tried de novo but, of course, all that was required was substantial evidence to support the findings below.
William J. Brennan, Jr.: Under the new rule, has this changed?
Richmond C. Coburn: No, as I recall it, it's substantially the same, but they have laid out the ground rules of procedure a little more carefully.
Potter Stewart: You said that up until this case it -- the ground rules of procedure had not been very well delineated. Does this mean that there had been no -- no case like this before this one?
Richmond C. Coburn: Yes, yes Mr. Justice. There had been one case of which I have knowledge that had been tried by the Board and where the Board had found that the petitioner was not -- had not established that he was of good moral character and where he filed a review with the Supreme Court of Missouri and where the Supreme Court upheld the Bar Board and he filed a petition for writ of certiorari in this Court but the petition was denied. May I then return to these two factual issues and --
John M. Harlan II: May I ask you one question?
Richmond C. Coburn: Yes, sir, Mr. Justice Harlan.
John M. Harlan II: Under your rule, does this preclude this young man from reapplying at some stage for permission to take the bar examination?
Richmond C. Coburn: No, it does not. As to this first issue of fact, as to whether the petitioner intimidated a witness in the Freeman hearing as the Board found, I think it is important for me to briefly restate the background that existed at the time that this telephone call was made by the petitioner to Mr. Trombley. The petitioner was a patient of Dr. Freeman's and apparently a good personal friend of his. Irene Werheyki, who is mentioned prominently in this record, was a woman who was also a patient of Dr. Freeman's, a charity patient. She had -- I think it is clear she was a rather pitiable figure. She had been married. She was divorced. After her divorce, a baby was born. She was without means. It was under those circumstances that the Trombleys took her into their home and she lived in a basement-apartment with her baby, I presume, and worked in -- for the Trombleys. Her life was almost wholly dependent upon the Trombleys. The testimony shows, according to Mr. Trombley now, that this woman, this Mrs. Werheyki, came to him in a distressed state of mind saying that Dr. Freeman's hearing was shortly forthcoming and that she understood that she was going to have to testify in the case and what should she do? Would the lawyers asked her questions and so forth?
Potter Stewart: The -- Dr. Freeman's hearing was to be before a Board called the, what? The --
Richmond C. Coburn: State Board of Healing Arts as they call it.
Potter Stewart: State Board of Healing Arts?
Richmond C. Coburn: It's really the Med -- State Medical Board.
Potter Stewart: Did that -- does that Board have subpoena power?
Richmond C. Coburn: I'm sure it did, I'm sure it did.
Potter Stewart: So that -- because as the record indicates that there was some -- that Mrs. Trom -- that Mrs. Werheyki, or whatever her name was, had some choice as to whether or not to appear and testify.
Richmond C. Coburn: Well, I think she could've been subpoenaed. I suppose if she wanted to exercise her rights under the Fifth Amendment, she could have, if her testimony was of that character, but otherwise I assume she was subject to being required to testify.
Potter Stewart: It did -- it does have subpoena power.
Richmond C. Coburn: I'm sure it does, Mr. Justice. Under those circumstances, this woman came to young, Mr. Trombley who was a member of the bar, not long but was a member of the bar, and asked his advice as to what she should do. He said “tell the truth,” and so she then went back to Dr. Freeman and said that she understood she was going to be called as a witness in his hearing and she was going to tell the truth. Dr. Freeman said to her that he thought that would be unwise, and here is a significant shred of evidence. He said “if you do testify, you may be put out of the house where you are living.” This is what Mr. Trombley said that Mrs. Werheyki told him that “you may be put out of the Trombley house that your reputation will be ruined and other derogatory things will happen to you” and so, she came back and reported that to Mr. Trombley and his wife. It was in that context or atmosphere that, about two days later, this telephone call was received from Mr. Zipkin, the petitioner. Trombley testified and it was his testimony that was believed by the Bar Board, Trombley testified that this telephone call came in. They had two extensions in the house. His wife first answered the phone and then he went over and picked up the telephone and it was Zipkin on the other end of the phone and he said “this is Michael Zipkin. I am helping Dr. Freeman with his case and everything is getting along alright, except that we have one problem. Irene Werheyki is in a truth-telling mood and I think that you and Mrs. Trombley and Dr. Freeman and I had better meet and discuss this subject to see what can be done about Irene.” It's significant, too, that not just Mr. Trombley who was a young lawyer, and I think might have some special sensibilities about what should be done under those circumstances, he reacted violently, but so did his wife who was not a lawyer at all. She said “we're not afraid of you, Zipkin.” He said “are you trying to intimidate a witness?” And, under those circumstances, the conversation was broken off so far as Trombleys' version of this thing is concerned. Zipkin --
Felix Frankfurter: (Inaudible)
Richmond C. Coburn: I think --
Felix Frankfurter: (Inaudible)
Richmond C. Coburn: I think that's a fair statement of the thing, Mr. Justice.
Felix Frankfurter: (Inaudible)
Richmond C. Coburn: No, but I think that's -- I think --
Felix Frankfurter: (Inaudible)
Richmond C. Coburn: I think that's fair. Zipkin told a different story entirely from this. His version of the thing was that he did not call up to intimidate a witness. He denied that he said that Irene was in a truth-telling mood in this conversation. What he said that he said over the telephone was this. That he called up saying that he had heard that Irene was going to charge Dr. Freeman in his hearing with rape or sexual relations with him and that he thought that the Trombleys should know that so they would not become involved in the mess that was sure to follow because she was living in their house. That was what he said on one occasion, but when pressed further by the Board as to what he said over the telephone, he changed the story and said later “well, I called up and said that I had heard that Irene was going to testify in the Freeman hearing and that, if she does, you will become involved in the matter because she is living in your home.” He denied that he was trying to intimidate a witness when he called but it is significant I think, too, that when Mr. Trombley and his wife both reacted violently to this telephone call, he said he didn't just stop, having given them the warning that he said he called up to give them, but he said “if you want to talk with me or with Dr. Freeman about this matter, if you will call me, I will tell you what I heard.” Those, if the Court please, are the facts. With reference to this issue of whether Mr. Zipkin, the petitioner, tried to intimidate a witness in this case.
Felix Frankfurter: (Inaudible)
Richmond C. Coburn: Not at all, not at all.
Felix Frankfurter: (Inaudible)
Richmond C. Coburn: On page 71, if the Court please, there is the first answer that Mr. Zipkin gave with reference to this telephone conversation. It is a long answer. It covers all of that page but it is an interesting answer and one that's important to the Court, I think. You will notice there that on three different occasions, this was the first time he had a chance to tell his story, three different times in that long answer, he said that he had heard that Irene Werheyki was going to accuse Dr. Freeman of rape or sexual immorality and that he was calling in order to warn the Trombleys of this so that they won't become so involved. If the Court will indulge me the privilege of reading very briefly from one of those statements, because I think it is in sharp conflict with his testimony later on. At one point in this long answer he said “I said --
William O. Douglas: Where are you reading, Mr. Coburn?
Richmond C. Coburn: Page 71, Mr. Justice, towards the bottom of the page, about the bottom-third. “I said and I just heard Irene Werheyki is going to accuse Dr. Freeman of rape and I wanted to tell you about this because if Irene gets into a mess, she is just liable to drag you into it. She lives with you” and so on. Now, if the Court please, if you will turn to page 87 of the record where the petitioner was under cross -- under examination by another member of the Board and where he now tells another version of this telephone conversation. On page 87, about a-third of the way down, question, “alright, and you were calling the Trombleys, as I understand it, to inform them that Irene was going to testify to rape and sexual intercourse, although I also understand -- understood you to say you were confident in your own mind that Irene would do -- wouldn't do anything like that.” Answer, “No. I called the Trombleys simply to tell them I heard Irene was going to testify. I didn't know what to” and then, again, he stuck by this from now on, on 89 -- page 89, he -- they say here, “do you remember further -- the question, “do you remember further testifying that knowledge came to you that Irene Werheyki was going to testify that she was involved in some rape and sexual immorality” and the witness then started to interrupt in the questioner, the board member said “wait a minute. Did you testify to that or not?” “Yes.” Question, “didn't you just get through telling Mr. Syler, another board member, that you didn't know what she was going to testify to before you called Trombley? Which is right, did you or didn't you?” Answer, “Here is what is right. I called up the Trombleys and informed them of exactly what I heard.” “What did you hear?” Answer, “That Irene was going to testify against Freeman at his hearing. I didn't hear what about or what the charges were, I had no idea.” And this last, and then I will not burden you with further references to the record, one of the members of the Board, a Mr. Oliver, dissented from the finding of the Board but I think it is clear from the record that on the very concluding page of the examination of the petitioner, that Mr. Oliver thought that he had not testified candidly before the Board. If Your Honors would turn to page 92 of the record, the very last thing that was asked the petitioner and this by Mr. Oliver. In the middle of the page and in the middle of his question, which is long, “I want you to reflect on what you had heard and what you actually told them as to your understanding to what Irene was going to testify to.” And then, answer, “I only told the Trombleys one thing,” and omitting a little, “I heard that Irene Werheyki -- I heard a rumor that Irene Werheyki was going to testify at this hearing of Dr. Freeman's.” “So that I understand your testimony, it is that you did not tell them -- tell that you had also heard that she was going to testify that she had been raped by Dr. Freeman or words to that effect?” “No sir.” And then, at the very end of the hearing, this comment by Commissioner Oliver, “well, I just wanted to be sure that you reflected on that because I am not quite sure the testimony is consistent all the way through” and so, if the Court please, it is our position here that there are two issues of fact. This Board had the power and the jurisdiction to determine facts. It resolved both those facts against the petitioner, namely that he had testified falsely with reference to this telephone conversation and, second, that he had undertaken or attempted to intimidate a witness in the Freeman hearing. As a result of which, the Board concluded that the petitioner had not discharged his burden of proof to establish that he was of good moral character. Now, the petitioner here has relied in its -- in his brief heavily upon the Schware and the First Konigsberg cases by this Court of course. May I say that those cases are in no ways applicable to the present case? In the first place, this is not a First Amendment or Bill of Rights case at all. It is simply a question of whether this man had due process of law. Is there any rational basis, in other words, for the finding of fact that was made by the Board in Missouri? Furthermore, these two cases, Schware and Konigsberg, are as different on the facts these cases could be.
Hugo L. Black: May I ask you if you would mind referring --
Richmond C. Coburn: Yes?
Hugo L. Black: -- where are the precise findings to which you refer?
Richmond C. Coburn: I think on 90 -- page 98, Mr. Justice Black, you will find the findings of the -- of the Bar Board.
Hugo L. Black: On the pages, I wondered if there's one -- you pin pointed two points.
Richmond C. Coburn: Yes.
Hugo L. Black: Are they in concise form or do you have to read it aside?
Richmond C. Coburn: Well, they are in the -- they are in the findings. I do not know that they are in quite that concise a form, but if you --
Hugo L. Black: Don't bother about --
Richmond C. Coburn: -- the findings are long but --
Hugo L. Black: Don't bother about it.
Richmond C. Coburn: That's alright.
Hugo L. Black: I'm referring to --
Richmond C. Coburn: Yes, you find, I think, that they are both there clearly in the Court -- in the Board's findings.
William J. Brennan, Jr.: Well, Mr. Coburn, isn't that at page 98, aren't the two findings expressed just as such in that paragraph beginning based on the record?
Richmond C. Coburn: Well, that's the paragraph that I had in mind. They find there that the applicant did attempt to influence the testimony of Mrs. Werheyki and --
William J. Brennan, Jr.: That he was not telling the truth.
Richmond C. Coburn: And that he was not telling the truth, yes.
William J. Brennan, Jr.: They placed that as finding.
Richmond C. Coburn: Yes.
William J. Brennan, Jr.: Due finding of the court.
Richmond C. Coburn: Yes, I -- they -- I think you certainly can say that they're in the paragraph, although they may not be quite as concise as they might be. But, if I may return to just a brief reference to the Schware and Konigsberg cases, they are not the same as this case at all because this is not a First Amendment or Bill of Rights case. The testimony in both of those cases with reference to the moral -- good moral character of the man who is applying for a particular bar examination was infinitely stronger than it was in this case. There was no question in either of those cases about the petitioner's truthfulness when he appeared before the Board. In fact, the Court commented Schware upon his candid -- candidness in revealing the fact that, many years before he had been a member of the Communist Party, there was no issue of fact before the local Board there with reference to some matter of substantial importance and, furthermore and finally, the testimony there related to a situation 15 years before whereas, the testimony here related to a matter that was quite current and, in fact, his appearance -- the petitioner's appearance before the Board and whether he told the truth was a matter of immediate concern to the Board. It happened in their very presence. And so if the Court please, it is the respondent's position that this petitioner has received due process of law. He received a full hearing at which he was represented by counsel, given every opportunity to bring in any witnesses that he had. All witnesses were heard patiently and, finally, at the end of the hearing, certain com -- certain conclusions of fact were made by the Board, on the basis of which, they entered a judgment that these are -- they found, rather, that this man had not established that he was of good moral character. I think the judgment of the Supreme Court of Missouri should be affirmed.
Felix Frankfurter: (Inaudible)
Richmond C. Coburn: Well, I didn't mention that. At least --
Felix Frankfurter: (Inaudible)
Richmond C. Coburn: No. I'm glad you asked that question, Mr. Justice. I didn't mention it. It did not occur to me as being a very important matter, but perhaps it will strike some members of the Court otherwise. My feeling with reference to that is this, that the mere fact that the Board found that in an issue of fact with reference to whether he held himself out to be a lawyer in this other matter, the mere fact that the Board there found in favor of the petitioner, but found in another issue of fact with reference to intimidating a witness against him is by no means inconsistent and all that that illustrates really, if the Court please, is this. That a fact finding body whether it'd be a court or a board, such as this, that can see the witnesses, see their demeanor on the stand, how they react to questions that are put to them, has an immense advantage.
William J. Brennan, Jr.: Well, excuse me Mr. Coburn. I am right, am I not, that there were other witnesses on the business of representing himself with an attorney who said that he did not.
Richmond C. Coburn: That's right.
William J. Brennan, Jr.: So that, this is -- even though there was evidence in addition to his testimony --
Richmond C. Coburn: Yes.
William J. Brennan, Jr.: -- on that issue as there was not on this other one.
Richmond C. Coburn: That's very true. That's true, Mr. Justice, and one other thing, and I think this is -- this, to me, would be important if I were sitting on this Board, with reference to his -- representing himself to be a lawyer, he did not testify untruthfully with reference to that at all. His position was perfectly consistent all the way through. He denied holding himself out as a lawyer. All he said was “well, I'm a law student” or “I know more about the law than you do,” but with reference to what this telephone conversation, where he was found to have tried to intimidate a witness, his testimony is strikingly inconsistent. And so, the Board, I think, was quite authorized in deciding against him on that issue and for him on the other issue of fact. Thank you very much.
Heywood H. Davis: Mr. Justice Black, may it please the Court. The matter of this inconsistency, the only real inconsistency that appears on this record, and it's an inconsistency that we have admitted in our brief, is that petitioner first testified that he said “I heard that Irene was going to testify against Dr. Freeman about rape or sexual relations,” whereas, he later said “I only heard that she was going to testify against Dr. Freeman.” Now, petitioner submits that this inconsistency as to what he heard some five months prior to the time of this Board hearing, considering particularly all the rumors and talk that was going on about this general matter is not a consistency that warrants the conclusion of the Board of Bar Examiners that he was not telling the truth or is of unfit character
Hugo L. Black: Can I ask you one question? Suppose that's correct, what can you say about the Board's authority to find (Inaudible) evidence to find that he has said what he did to his witness (Inaudible) not that exact language, but what he said this. Suppose -- suppose he had at all made a statement that the truth-telling need to do something about something to that effect. What would you say about that without regard if the Board found that he is fit?
Heywood H. Davis: The petitioner submits that even assuming that Trombley's version of the telephone call is correct, that even assuming that what was said on the telephone that that doesn't form a basis -- a substantial basis from which you can draw a legal conclusion that that constituted an attempt to intimidate a witness --
Hugo L. Black: Suppose if it didn't constitute an attempt to intimidate a witness, but did show reference (Inaudible)
Heywood H. Davis: We say that even accepting Trombley's version of the phone call and wholly apart from the fact that petitioner testified to the contrary that that is not a basis from which you can draw the conclusion that that did constitute such an attempt. The 14 lines of testimony that I read yesterday in which Mr. Coburn referred to as to this one telephone conversation, one single controverted telephone conversation.