Earl Warren: Number 70, Theodore Green versus United States and Number 179, Theodore Green versus United States. Mr. Vorenberg.
James Vorenberg: May it please the Court. These consolidated cases grow out of the robbery of the Norwood Bank and Banking Company in Norwood, Massachusetts in September of 1951. The petitioner here and two codefendants were indicted on indictments in three counts. Count 1 charged entry of the bank with the intention to commit a felony in violation of Section 2113 (a) of the Criminal -- Federal Criminal Code. Count 2 charged robbery at the bank in violation of the same subsection. And Count 3 charged aggravated robbery, that is that they put the -- they put named persons in jeopardy in the process of committing the robbery named in Count 2. One of the codefendants pleaded guilty and testified on behalf of the Government. The petitioner here and another codefendant pleaded not guilty and were tried. They were convicted on all three counts and were sentenced to three concurrent sentences, 20 years on Count 1, 20 years on Count 2 and 25 years on Count 3, sentences that I have mentioned to run concurrent. There are, in fact, two separate cases here. There are two records in this Court but as a matter of convenience, the Government and the petitioner have filed but -- one brief each covering the two cases on a consolidated basis. Both of these cases arise under separate motions under Rule 35 to attack the sentences as being illegal. There is no issue here of a new trial, simply a question of an attack upon the sentence. Since the issue and the issues in the two cases are almost unrelated, I think it would be helpful if I turn first to No. 70. The issue on that case is simply whether Rule 32 (a), subparagraph (a) of Rule 32 of the Federal Criminal Rules, requires that the trial judge before sentencing ask the accused if he has something to say to the court. The facts in this case can be quite simply stated. The petitioner did not testify on his behalf at the trial. Subsequent to the conviction, the court held a hearing approximately one week later at -- which it announced that it would impose sentences. Also at that hearing, it considered two other motions, the motion for a new trial and a motion in arrest of judgment. I think a fair reading of the record would convince anyone that it is -- it was a somewhat confused hearing with these three matters being interwoven throughout. The -- about midway in this hearing, petitioner's counsel made a short statement on petitioner's behalf. In the -- the thrust of his statement was that petitioner had a number of other criminal matters pending and that he had, as his counsel said, a long road to travel and on that basis, counsel asked that the court be lenient. At the conclusion of this hearing, the judge made a sharply critical statement of the petitioner and of his codefendant. He referred to them as madmen, stated that they deserved no consideration and on two separate occasions, stated that there was not one word that can be said on their behalf. Without interruption, he went on to impose sentence. Subsequent to the imposition of sentence, a few days later, he signed the judgment and commitment form, setting forth in effect what we had done. This form stated specifically that the court had asked the petitioner, had asked the accused if he had something to say before sentence was pronounced. In fact, the record is perfectly clear that no such question was ever asked and the Government conceded as much in the Court of Appeals. So I think we can proceed on the factual assumption that the -- that no question was ever put to the petitioner in this case by the judge. In 1959, the petitioner, who was at that time and is still confined at Alcatraz serving these sentences, made a motion under Rule 35 to have the sentence vacated on this ground. There were two other grounds that are not relevant here because the court limited the grant of certiorari to this whole question of this -- of the interpretation of Rule 32 (a).
Felix Frankfurter: May I -- may I break in, Mr. Vorenberg. It doesn't appear who the sitting judge was. The order on page 25 by Judge Ford does not relate, he wasn't the -- the trial judge, was he?
James Vorenberg: Yes, he was, Your Honor.
Felix Frankfurter: He was?
James Vorenberg: He was the trial judge and if you'll look in --
Felix Frankfurter: Then --
James Vorenberg: Excuse me.
Felix Frankfurter: What intervened between the judgment of sentence on October 27, 1952? Was there any -- a history between there?
James Vorenberg: Not that I -- I know of no history that is relevant and --
Felix Frankfurter: --(Voice Overlap) --
James Vorenberg: -- which I believe this form was -- was signed in the ordinary course shortly -- shortly after the trial.
Felix Frankfurter: But how did this filing clerk's office 55, what does that mean?
James Vorenberg: Well, that I can't explain, Your Honor. The -- and -- in talking to the -- in raising that same question with the clerk's office in Boston, I had -- have no insight into it.
Felix Frankfurter: When did this proceeding -- the proceeding --
James Vorenberg: This --
Felix Frankfurter: -- which brings you here, when does that start?
James Vorenberg: 1959.
Felix Frankfurter: 1959 and nothing in between relevant to our problem.
James Vorenberg: I think not, Your Honor.
Felix Frankfurter: Alright and -- and nothing --
James Vorenberg: Nothing between the -- between the signing of this order in the ordinary course and the preceding sentence, at least nothing of which I know, Your Honor, or been unable --
Felix Frankfurter: And no -- no steps were taken -- his sentence wasn't appealed, was it?
James Vorenberg: He --
Felix Frankfurter: (Inaudible) sentence was it?
James Vorenberg: He -- the sentence was -- was not appealed. He took an appeal but did not prosecuted and it was dismissed for want of diligent prosecution.
Felix Frankfurter: And we begin then with whenever -- whatever month -- was is it? June. How did Judge Aldrich come in to this?
James Vorenberg: Judge Aldrich was the judge who ruled on the motion in this branch of the case, to vacate the sentence under Rule --
Felix Frankfurter: I suppose he was sitting in the appropriate --
James Vorenberg: I don't know if he was sitting as emergency judge or --
Felix Frankfurter: I mean, that's -- my question really is, why wasn't it referred to Judge Ford?
James Vorenberg: I don't know the answer to that, Your Honor.
Felix Frankfurter: What is the usual practice up there? The same -- one judge who have charged of everything or not?
James Vorenberg: Well, the -- the usual practice is that any matter that is related to a case will stay with the judge who heard that case.
Felix Frankfurter: Altogether, this is the record that's full of mystery, isn't it?
James Vorenberg: That's right, Your Honor. It maybe that -- that Judge Aldrich was at that time sitting as the emergency judge. I don't -- I don't know. The -- Judge Aldrich's denial of this motion in the District Court was affirmed by the Court of Appeal and this Court granted certiorari. The issue in this case is -- can be quite simply stated. The petitioner asserts that Rule 32 (a), subsection (a) of Rule 32, gives the accused a right to speak to the court in person prior to the time sentence is pronounced, and that this is a right that the trial judge has a duty to offer to the accused. As I understand the Government's position, they assert that the right need not be a personal right of the accused but maybe a right of his counsel. And that no affirmative action of the trial judge is necessary to see that the accused does have the opportunity to speak. I think it is worth saying again that the only -- that all that is at stake in this case is a remand for resentencing. That there is no assertion on the petitioner's part that he is entitled to a new trial because of this error. Turning first to the language of subsection (a) of Rule 32, which appears --
John M. Harlan II: (Inaudible)
James Vorenberg: We believe that it is, Your Honor. We believe that Rule 35 means what it says on its face that a -- an illegal sentence maybe corrected at any time. We believe that this sentence is illegal because the procedure by which it was pronounced is illegal.
John M. Harlan II: (Inaudible)
James Vorenberg: Well, I don't think it relates to the trial, Your Honor. I think it relates -- the trial was over. It relates to the --
John M. Harlan II: Sentencing.
James Vorenberg: Yes.
John M. Harlan II: (Inaudible)
James Vorenberg: That is right, Your Honor.
Charles E. Whittaker: In other words (Inaudible)
James Vorenberg: That is right, Your Honor. And I think, it -- it maybe more convenient to come back to that after I have spelled out a little bit the -- the history of the -- of this right. But in some, it is our review that it is the -- it is an illegal sentence. Subsection (a) of Rule 32, and it's -- the only -- the last sentence that is relevant here, appears on page 9 of the petitioner's brief. It reads as follows, "Before imposing sentence, the court shall afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of judgment." I think it is worth emphasizing that there are two sub-phrases there, an opportunity to make a statement in his own behalf and to present any information in mitigation of judgment. If, as the Government suggests in its brief, the sole purpose of this right is to permit someone on the accused team, so to speak, to bring information that maybe relevant in mitigation of sentence, it would have been unnecessary to make any reference to a statement in his own behalf. It would have been sufficient to say that he shall have an opportunity to present information in mitigation of punishment. If that language means anything, we think it simply means that there is to be a personal statement by the accused that if he wishes to make such a statement. It is true, as the Government suggest, that the word "defendant" is used elsewhere in the federal rules to mean the defendant either acting alone or by his counsel. But the context in which it is used in the sections to which they refer is completely different. I don't think I can improve on the language of the Court of Appeals for the Ninth Circuit in an opinion en banc that was handed down last month on this issue. Considering this contention of the Government, the court says as follows, "We --
John M. Harlan II: (Inaudible)
James Vorenberg: It is not, Your Honor. This opinion is referred to in the Government's brief. It has -- it came down since we filed our brief. It was decided on December 12th, 1960 and its --
Hugo L. Black: What's the name of it?
James Vorenberg: Taylor versus United States.
Hugo L. Black: Taylor?
James Vorenberg: Taylor. Referring to this contention of the Government, the court said, "We cannot agree." The words "shall afford the defendant an opportunity to make a statement in his own behalf" seems to connote a different and more extensive procedure that exist when a defendant moves, requests or act under other sections of the rules. I would suppose that if one was looking for an analogy to the use of the word "the defendant" in Rule 32 (a), the closes place to look would be Rule 43, which says the defendant has the right to be present throughout the trial. Historically, these two rights have been related to one another. And in each case, I think, it -- is a -- as a matter of common sense, the right is a personal right. It's clear beyond any doubt that the right of Rule 43 is not a right to have one's counsel present because that's protected elsewhere, but it's the right to be physically present in court. In short, we say that without going beyond the language of the Rule and its obvious intent, it's a personal right. The history of the Rule bears this out. The Rule is the natural -- natural evolvement of the historic right of allocution, which developed at or it can be found in the early common law, at least as early as the 17th century. This was a right given to the accused to address the court before sentence was pronounced. Now, this -- it is true that this was a right that grew up at a time when the accused had no counsel, did not have a right to have counsel. But it is also true that it has survived long beyond the time when the accused did have a right to counsel and therefore, the -- our position is that the substance of the -- of the right is as significant today as it -- as it was in -- in earlier times. The -- on the specific issue presented to --
Felix Frankfurter: The key -- and the keyword of your statement is "substance of the right".
James Vorenberg: Yes, Your Honor.
Felix Frankfurter: Namely that it -- if there's anything to be said for him, it should be said. I don't mean to beg the question by saying "for him".
James Vorenberg: No, I --
Felix Frankfurter: But you said that substance mean, they should be allowed to have a say.
James Vorenberg: That he should be allowed to have a say.
Felix Frankfurter: Yes. And the question is how -- what he wants to say is to be elicited from him.
James Vorenberg: I think that is right, Your Honor. But I -- I think that the -- one of the original purposes of the right of allocution was the opportunity to make a statement in mitigation. And I think there are very good reasons why that is a -- a right that the accused should be permitted to make personally, perhaps, in addition to his statement by counsel but there are very good reasons why that should be a personal right.
Felix Frankfurter: But it's necessary to -- as -- as to some other rights not waivable, except to those that are not waivable and wants to be sure that he hasn't been denied that right.
James Vorenberg: That is correct, Your Honor.
Felix Frankfurter: So the question is whether particular circumstances properly interpreted to constitute a withholding of that right there.
James Vorenberg: I think that -- that really is the issue here and that it is the petitioner's position that in this case and indeed in any case.
Felix Frankfurter: But your position is that he must be asked that the judge must say, "Your lawyer may not have told you or -- or your lawyer may not have advised you or your lawyer maybe incompetent or your lawyer may have this or that and other consideration. I'll tell you, John Smith, you personally are entitled to make a speech now."
James Vorenberg: Well, I think --
Felix Frankfurter: Is that your position?
James Vorenberg: Not quite, Your Honor, because it is my position that the right is not the right to make a statement but the right is the right to have the question asked. This is how the right grew up, as the right to have a question asked of the individual of the -- the accused.
Felix Frankfurter: He must know that he has that right.
James Vorenberg: Well, I don't know. I'll go one step further, Your Honor. It's a right to have the specific question put to the individual, put to the accused.
Felix Frankfurter: Then you -- then I do understand that there's no way of meeting that right except by having the judge say, "John Smith, have you got anything to say before I impose sentence?"
James Vorenberg: That is exactly the petitioner's position.
Felix Frankfurter: And that -- that question cannot be inferred from the situation.
James Vorenberg: Well, I'm not -- I'm not holding out, Your Honor, for any magic words. I don't think that there is any code.
Felix Frankfurter: I don't mean any magic word. He must address him by explicit language that he can understand that he is being addressed.
James Vorenberg: That is correct, Your Honor. I think it is the duty of the -- of the trial judge to be sure that this question has been put and the only way he can be sure is if the question is put by him to the accused.
Felix Frankfurter: Well --
Charles E. Whittaker: Is it satisfied, I'm curious, for the court to say, "I will now hear from the defendant," and then his counsel gets up and speaks, does that discharge (Inaudible)?
James Vorenberg: I think it does not, Your Honor. I -- I kind of conceive of -- of situation, factual situation, where the trial judge might look over the bench at the defendant and ask that question and the defendant would shake his head and nudge his counsel.
Charles E. Whittaker: I don't --
James Vorenberg: And this counsel would get up --
Charles E. Whittaker: (Voice Overlap) that's why I'm asking. Well, did he ask counsel what I did and I think what every District Judge do say, "I would now hear from the defendant, if he wishes to be heard, before sentence is imposed," and the lawyer then gets up and makes his speech?
James Vorenberg: Well, I think if -- if that question if -- is put directly to the defendant as it was not -- never done in the -- in the case before us here, if the record satisfies the court that the question has been put to the defendant, I don't think that the court can do anymore. The court can't make the defendant say, "No, I don't want to speak." But I think --
Felix Frankfurter: In other words, if he says, "John Smith, I will now hear from the defendant," that's all right. But if he says, "I will now hear from the defendant," that's all wrong because -- or inadequate, so your position is, though you haven't -- you've gone almost to be (Inaudible) but not quite, your position is that form is substance in this kind of a situation.
James Vorenberg: To -- to some extent, Your Honor, I don't think the --
Felix Frankfurter: Well --
James Vorenberg: -- I -- I think it becomes -- it may well become a factual question in any given situation as to whether the question has been put to the accused individually. Take -- I mean this case is a perfect example in the middle of an argument on a motion for a new trial, the judge turned to the defendant's lawyer and said, "Did you want to say something?" Or -- clearly that is not a situation in which the defendant could think he had an opportunity to get up and rise. And nowhere else in the preceding was there the slightest indication that the trial judge was ready to hear from the defendant.
Felix Frankfurter: I think that's probably the greatest surprise if you were told, probably was that -- that defendant didn't clearly understand that he had anything to say in addition to the eloquence of his counsel that he could.
James Vorenberg: I can't speak -- I can't --
Felix Frankfurter: I know you can't --
James Vorenberg: -- speak for Judge Ford on that.
Felix Frankfurter: (Voice Overlap) it gets to the point whether when -- whether one can't infer as you would infer in ordinary normal human situation that -- that the opportunity to talk was amply conveyed there in the setting of what took place. This fellow has, as one understands, a very competent lawyer if I may use that. I might -- I think there would a difference if you -- if he had no lawyer.
James Vorenberg: I think -- I think --
Felix Frankfurter: But if you say it's a question of fact, if you say it's a question of fact, then we're in a very different ground from saying, "No, this is a rigid rule," and one can say, "Well, the District Judge, Judge Aldrich thought the circumstances satisfy the requirement." The Court of Appeals thought so who are we to rule it."
James Vorenberg: Well, Judge -- Judge --
Felix Frankfurter: But if you say to fix -- if it -- if you say that the formula must be gone through because that's the only way to prove that he was asked. That's clearly what it get sounded.
James Vorenberg: Well, it's the only -- that is the only way to prove that he was asked the question. I don't think Judge Aldrich thought that he had ever been asked the question and that it was a problem of proof. Judge -- Judge Aldrich said was that the presence of counsel and the fact that counsel made a statement and the accused sat there and said nothing is an indication that the accused had nothing he wanted to say. And I think this case turns on our contention that that is not a permissible inference. And while we're talking about this issue, I just suggest that this -- the trial record in this case is about as good a case in point as you could imagine. You have this highly confused hearing as I mentioned. You have this vitriolic statement by the judge in which he said twice that I -- there is not one word that can be said on behalf of this defendant. That clearly was not the time when one could reasonably expect the -- the defendant to rise on his own behalf and start saying these prohibited words.
Felix Frankfurter: One --
James Vorenberg: And --
Felix Frankfurter: -- can also assume that whatever had been said would have left not a dent on the judge.
James Vorenberg: Well, I think that if -- if -- I would not be willing to attribute to Judge Ford that much of a close mind, Your Honor. That if he was willing -- I think if he was willing to listen to these defendants, he would have been willing to listen to them with an open mind.
Felix Frankfurter: Yes.
James Vorenberg: I think that that must be -- that is an inference that this Court certainly should draw that the fact that he was not willing to -- to listen to them was a denial to them of the substantive right of having a trial judge. He was sufficiently interested in whatever they might want to say in their own personal behalf, so that he was not in a position where he was -- he should impose sentence at that.
Felix Frankfurter: All I'm -- all I meant was that Judge Ford might justifiably think that Mr. Callahan could speak for him as well as he could for himself.
James Vorenberg: It might well -- it might well have thought that, Your Honor.
John M. Harlan II: Is this man was convicted in 1952?
James Vorenberg: He's convicted in 1952 -- in -- in 1951.
John M. Harlan II: 1951. When did he first make this contention?
James Vorenberg: 1959.
John M. Harlan II: 1959.
James Vorenberg: On this point we're discussing now the historic substance of the right of allocution was a right that it had to appear in the record that it was not enough to make the type of inference that we have been discussing here. The -- the notes of the Advisory Committee on the Federal Rules are inconclusive on this point. The -- I think a fair reading of the -- those notes in the general history of the adoption of Rule 32 (a) plead to the conclusion that was -- was intended was to carry into federal procedure, the right to have the personal question put to the accused, the traditional form of the right of allocution. Perhaps, the clearest indication of this is that at the same time, the Federal Rules were adopted that was promulgated this form 25, which is the suggested form to be used with those rules. And that form continued in effect the -- the language -- the court having asked the defendant that if he had anything to say in its own behalf. I just suggest that it would be highly incongruous for the court to adopt the -- a rule that has one meaning and adopt with it a -- a suggested form for use by the trial courts, which has a completely different meaning.
Charles E. Whittaker: But is there a form for those instances in which the defendant asked counsel and another in those instances in which they have not done?
James Vorenberg: There is not -- there is no such form, Your Honor.
Charles E. Whittaker: And hence, perhaps, that maybe a matter of importance.
James Vorenberg: Well, isn't it unlikely that the standard form that was adopted, Your Honor, would be for the rather rare case when the defendant does not have counsel? This -- this is a form that is used in -- in cases in which the defendant has counsel.
Felix Frankfurter: Why do you say the rare case?
James Vorenberg: Well, the --
Felix Frankfurter: Why are those the rare case? Why is it rare?
James Vorenberg: I would suppose --
Felix Frankfurter: Take the place of guilty, which constitute, I suppose, the largest percentage of sentencing. This Rule also applies to those cases, is it not?
James Vorenberg: I -- I stand corrected then, Your Honor. I withdraw the rare case. But certainly, the -- there's a great mass of cases in which the defendant is represented by counsel and then there's no indication that the framers of the Rules and of this form were simply thinking of -- of this as the right in those cases where there was no counsel.
John M. Harlan II: Of course, the form is consistent with the other point of view.
James Vorenberg: That the --
John M. Harlan II: The "defendant".
James Vorenberg: That the word "defendant" means the defendant -- I think it's -- it's hard to say the defendant having been asked. I mean, to me, the -- the word "ask" has the -- has the flavor of a personal question. And I -- it is also persuasive, I think, that this is almost word for word, the traditional form of the right of allocution as it is historically developed in the law. That it's a -- it -- it reads almost the same way, the early English cases, setting aside sentences --
Charles E. Whittaker: But was that awful --
James Vorenberg: (Voice Overlap) --
Charles E. Whittaker: -- true of his right to be heard (Inaudible)? His right to be heard and is that not satisfied even on the present (Inaudible) if you say that counsel?
James Vorenberg: I don't think that at the time this Rule developed that there was a right. I think this was the defendant's sole opportunity to be heard, the right of allocution, I think was the sole opportunity.
Charles E. Whittaker: But he rose under -- under pleas of guilt, does he not?
James Vorenberg: No, but could this -- could -- this could come up either under a plea of guilty or not guilty.
Felix Frankfurter: Do the cases or the old cases make a distinction between capital cases and non-capital?
James Vorenberg: I think -- well, again, the right arose at the time when most offenses were capital offenses.
Felix Frankfurter: Well, we'll get down to 1830.
James Vorenberg: I can't -- because I can't pinpoint that date. I think that --
Felix Frankfurter: I can't either. I mean --
James Vorenberg: Well, I --
Felix Frankfurter: -- all I mean to say is when the capital cases were largely contracted.
James Vorenberg: Well, the -- there are very few. That -- there are only four federal cases that it considered this.
Felix Frankfurter: No, not that, the English. I want to know what happened in there.
James Vorenberg: Well, as far as I know, the -- all the early cases relating to the development of this right were capital cases.
Felix Frankfurter: Were capital cases.
James Vorenberg: The lower federal courts, considering the particular issue involved in this part of the case, are split. I've not tried to add up the number of judges on opposite sides of this. I think it is worth saying that even those courts, which have taken the view that the right is not a right to have a personal question put to the accused, have indicated that it, in their view, it is better practice to do so. The Court of Appeals from the District of Columbia, which has considered this question most carefully, in an en banc decision in Couch v. United States decided -- cited on page 14 of our brief, has held that in a decision given prospective application only but has held that from and after the date of that decision in all criminal cases in the District of Columbia, the trial judge must ask the question of the defendant personally.
John M. Harlan II: They did that as a result of exercising their supervisory of powers --
James Vorenberg: That is correct, sir.
John M. Harlan II: -- rather than construing the Rule.
James Vorenberg: Well, I think -- I would assume that it constituted the construction of the Rule. I mean, they were -- it was purported to be a construction of the Rule. I assume that they are -- their consideration of that question, in its relationship to the Rule, is exactly the same as this Court's consideration of the question now in relationship to the rule.
Charles E. Whittaker: As a practical matter, if the (Inaudible) is the defendant in anyway deprived of him substantive right to (Inaudible)?
James Vorenberg: Oh, I think -- I think, yes, Your Honor. I think he is deprived of a very important substantive right. We don't suggest that this -- that we're just trying to continue in the modern practice an obsolete form from the 15th, 16th or 17th century. In the first place, the lawyer cannot possibly know all there is to know about the defendant's personal background that might be relevant with respect to his sentence. Just -- it get -- it -- no longer is related to the facts of the individual case. It becomes an issue rather of what kind of a human being this is. And I just suggest that while the lawyer may have some insight to shed on that, in relationship to the object of record that the individual himself also has an important insight to shed on. He may by -- by making a statement to the court just by the sincerity of his manner by what he has to say, by saying something that the -- his lawyer just didn't know about and couldn't have known about, convinced the judge that he has -- he has realized the seriousness of what he has done, convinced the judge that he has a better rehabilitation risk than the judge might otherwise think. I mean it's a -- we're living in a time, I guess, when objective testing techniques, objective methods of testing personality have become very common. But I don't think that anybody, with any knowledge in this field, thinks that you cannot thereby abandon completely the importance of a personal contact.
Felix Frankfurter: And what do you -- I take it, you might say that it is not unknown, we have some historic cases that an (Inaudible) person might be more eloquent to know how to graduate.
James Vorenberg: I think that's always possibly, Your Honor.
Hugo L. Black: (Inaudible)
James Vorenberg: [Laughs]
Felix Frankfurter: Well, I'm thinking the (Inaudible)
James Vorenberg: The -- I think it's unquestionably true that the most important insights, the Court is going to get into the personality of the defendant, will come from the probation report and the object of record. It is also true that the accused can tell the -- his counsel a lot of the things in his background. But you then come down to the hard-core of the man-to-man relationship between one human being who was passing judgment on another and it's not such a burdensome requirement that it -- it seems to make much sense to say, "Well, that's not important that counsel can do it for him." That doesn't hold up the process of just as much for the judge to put the question right to the defendant rather than assuming that he has nothing he could say.
Potter Stewart: Mr. Vorenberg, I suppose there's no way that you could know how -- how usual it is or how unusual it is for -- for a district judge to give the defendant personally an opportunity to exercise this right, as you say -- say should be given. Now, Mr. Justice Whittaker said -- indicated his practice on this district judge, you had no way a copy of that (Voice Overlap) --
James Vorenberg: I -- I'd just be guessing if I spoke on that except for one -- one point, Your Honor. I refer in my brief two hearings before the House of Representatives Committee on the Judiciary. And in those hearings, Judge Biggs quite casually said that it is customary to ask the defendant if he has anything to say on his own behalf. That's the only piece of objective information I have.
Charles E. Whittaker: So, I think that story is -- well, I mean not all is to their -- usually often done but considered to be done when you -- the judge says, "And I'll break the defendant (Inaudible). I'll be glad to hear from the (Inaudible) --
James Vorenberg: Well, I think --
Charles E. Whittaker: (Inaudible)
James Vorenberg: Excuse me.
Charles E. Whittaker: (Inaudible) that satisfies him.
Felix Frankfurter: Of course, what he says, I'd be glad to hear from him. You personalize it.
James Vorenberg: Well, I think Your Honor that if the -- if in this case, the judge said, as you say, does the defendant have anything he wishes to say --
Charles E. Whittaker: Yes.
James Vorenberg: -- and clearly directs that question to the defendant. I don't know what more he can do. That seems to me to -- to comply with the substance of the right. And I -- I certainly did not mean to indicate the contrary. I think that would satisfy. On the other hand, if he asks the question and looks over at counsel, then I would think that the right had not been complied with. That's why I think it -- it -- that the only way to end the confusion here is to make it perfectly clear to the lower court judges that this is a right that is to be accorded personally to the defendant. It's not -- it is not, as I've mentioned before, particularly burdensome one.
Potter Stewart: I was just wondering as a practical manner -- matter, how many thousands of applications are there under Rule 35, if that -- if that rule is not clear?
James Vorenberg: I -- I can't answer that, Your Honor.
John M. Harlan II: It might be very embarrassing to counsel sometimes to be put in that position where you -- last thing you want him to have his client get up and make speech to begin.
James Vorenberg: Well, but I think -- that may well be the case, Your Honor.
John M. Harlan II: (Voice Overlap) --
James Vorenberg: But I think that maybe one of the prices that has to be paid for the according of this right.
Charles E. Whittaker: I was -- I'm curious to know, Mr. Vorenberg, how do you handle this situation, which I can assure you, does happen (Inaudible) doesn't make a statement, as I've indicated previously and the defendant and lawyer will start to talk and the defendant too will start to talk and then the lawyer will say to him, "Now, you keep still." (Inaudible) lawyers are going to make a speech and what about that?
James Vorenberg: I -- well, I -- that's not -- that's not my case, Your Honor, but I would -- I would think that in that case that it might well be that the judge would want to satisfy himself after counsel has spoken that he has heard from the defendant personally. This again not relating at all to the issue of guilt or innocence because that's behind the Court at this point, but in an effort to see whether the defendant, himself, can shed any light on -- on the issue of -- of sentence, the -- if for no other reason and I don't suggest this is the only reason, I think that this is an important right so that the defendant, when he goes off to prison or other punishment is imposed on him, will have the feeling that there is not bottled up in him, something that he could've said that would've affect the judgment of the court. In other words, it becomes, to some extent, not only that justice should in fact be done but that justice should have appear to be done. And to me, the -- the balance is so heavily in favor of according this right. I mean its -- it requires such a small ritual of the -- of the trial judge. And it is -- there is so much at stake on the other side that I can't see any strong argument against it.
Hugo L. Black: I don't see why you're having trouble with Mr. Justice Whittaker on the question under your statement. If a lawyer says he wants him to stop, I actually think your answer would be the lawyer can't stop him.
James Vorenberg: Cannot stop him.
Hugo L. Black: Lawyer's already done all the talking he could and got him convicted and that is the (Inaudible) [Laughter]
James Vorenberg: At that, I think is -- I -- I don't have much trouble with it, Your Honor. I think that is -- that is exactly right.
Felix Frankfurter: Why do you -- why do you have a reserve against saying that the only safe rule for this Court to acknowledge is that the formula must be put to the defendant explicitly, and those were the phrase of ours, because that's the only way to avoid controversy as to whether it was the record to him personally or whether it was -- the -- the lawyer was conduit to him or the -- all the ambiguities of human situations and phrasing are avoided if one has a fixed rule, if it is as important as you argue it is.
James Vorenberg: Well, I've -- I -- I don't think I'm saying anything different, Your Honor. I'm saying that I don't think there's a magic formula of words but I would think that the rule this Court should annunciate is that the trial judge must personally ask the defendant if he has anything to say. No more than that. I don't think that it should be error, if he asks the question this way rather in that way.
Felix Frankfurter: I don't mean that the words but -- do I gather from your answer that it would be error -- it would be inadequate or not a fulfillment of the requirement if the trial judge says, "I'll now hear from the defense"?
James Vorenberg: I would think that would not be --
Felix Frankfurter: That was bad.
James Vorenberg: Absolutely not, Your Honor.
Felix Frankfurter: Alright.
James Vorenberg: I think that would be --
Felix Frankfurter: If he says, "I'll now hear from the defendant," without saying John Smith or Mr. John Smith or Mr. John Smith (Inaudible) got anything to say, he wouldn't -- he wouldn't boggle over the explicit way in which he --
James Vorenberg: I would not.
Felix Frankfurter: (Inaudible)
James Vorenberg: That's right, Your Honor.
Felix Frankfurter: But you do say that this is an implicit, rigid iron rule, namely --
James Vorenberg: I think --
Felix Frankfurter: -- that he must address or must look at prisoner and he must look at the defendant in the eye, he ought to look at his face and say, have you had anything to say.
James Vorenberg: Yes, I do, Your Honor. I -- I think this is what -- this is what Rule 32 (a) means and I think it's a good rule. Really, that's --
Hugo L. Black: (Voice Overlap) certainly what it said.
James Vorenberg: What?
Hugo L. Black: Certainly what it said, wether it means to deny.
James Vorenberg: That -- that's the --
Felix Frankfurter: Well, but --
James Vorenberg: -- petitioner's position, Your Honor.
Felix Frankfurter: -- our job is to find out meaning and not just the word, isn't it?
James Vorenberg: Well, I think the meaning of that is perfectly clear, Your Honor. The --
Potter Stewart: Of course, there's a lot of other references to the defendant in the criminal rules where it doesn't mean that. I mean just lawyers, isn't it?
James Vorenberg: Well, but as I tried to indicate earlier, there are -- the context of this, the reference to making a statement, the history of it, which I spelled out very briefly, indicates that this is a -- is to be a personal right that you -- as -- as I mentioned, the Rule defendant has used in Rule 43 talking about the right to be present. I will -- it's clear beyond any doubt that that means in person.
Potter Stewart: Because of the history, is it not?
James Vorenberg: Because of the history and -- and the meaning it wouldn't --
Potter Stewart: You're right.
James Vorenberg: -- make any sense otherwise, so I think, the same thing can -- can be said here.
Felix Frankfurter: How do you take care of the feeling one has that here was a -- a defect, if it wasn't in effect in late 1951 and somehow rather this great wrong wasn't discovered by the person not fully innocent in the weight of the world till 1959. And that there must be probably their bounds would be, I should think -- I should think it says, there you say estimate, guess that there must be hundreds and hundreds of cases in which district courts didn't have this conception because the lawyer took care of it or they said what about -- has the defense anything more to say etcetera. And that if you prevail, you'll be -- you -- you'd be a great benefactor to people in Alcatraz, Joliet etcetera, etcetera.
James Vorenberg: Well, looking at this --
Felix Frankfurter: Are those relevant considerations?
James Vorenberg: I do not, Your Honor, think it is -- it is relevant in considering the substance of a clear federal right that by granting it, a number of people may seek to exercise it. I think the question is to whether it is -- it is a right that can be raised under 35 (a) is something that deserves a little consideration. Now, as --
Felix Frankfurter: Of course, because it's a clear right and there's no problem but in determining what 35 means, we have to take into consideration consequence.
James Vorenberg: Well, I've -- I question whether that is really so, that if you have -- if you have language that is -- that is clear, with history that is clear and with a -- a good rule behind it, that it maybe one of the prices that has to be paid by the federal system that a number of defendants may seek to exercise that right. And then I think it is worth mentioning that we're talking not about a new trial in these cases, we're talking about coming back for resentencing and I don't know. I think it just a guess.
Felix Frankfurter: I think he just settled for a trip from Alcatraz.
James Vorenberg: Well, I think it is just a guess, Your Honor, as to how many defendants will seek to exercise that right. I wouldn't try to guess it. On the -- on the question that Mr. Justice Harlan raised at the outset as to the -- the meaning of Rule 35, I mean as to the right to raise this -- the meaning of Rule 32 (a) under Rule 35, this comes into this case as something went after thought on the Government's part. In the District Court, the Government, as far as I know, did not file any memorandum of law in the Court of Appeals that filed a brief that made no mention whatsoever of the position which it takes here that Rule 35 is not a -- an appropriate remedy. For the first, it doesn't mention it in its questions presented. For the first time in its brief in this Court, it raises the question as to whether this is an illegal sentence, which may be attacked under Rule 35. I would just suggest that this Court's treatment of the similar handling of this problem by the Government in the Ladner case is appropriate here. The issue has been raised too late and the Court should pass onto the merits.
Hugo L. Black: They have a right to defend that judgment, don't they, on any ground?
James Vorenberg: They -- they do, Your Honor, but I -- I -- it seems to me, this is an instance where appropriate consideration has not been given to the -- to the issue. I just mentioned this. I don't rely on it frankly because I think it is so clear that Rule 35 is available for just this type of question. It is not a form of -- Rule 35 is not a form of collateral attack as the Government suggest. It's a proceeding in the same case and that's not a technical difference, it's a difference of real substance here because all that's involved is the correction by the original trial judge of his sentence. All that's necessary is for the defendant to come back and be resentenced. It does not require a new factual trial.
John M. Harlan II: This maybe anticipating but it bears on this point, do you draw a distinction between this situation and the argument that you make later on, will make later on as to the error and the charge underlying Count 3?
James Vorenberg: I think that -- I think that latter is a much harder question, Your Honor.
John M. Harlan II: You think this -- you think this is an easier question?
James Vorenberg: I think this is a much easier question, a very easy question that --
John M. Harlan II: I wish you could explain why you think it's so much easier.
James Vorenberg: Well --
John M. Harlan II: Or at least enlighten me, put it that way.
James Vorenberg: [Laughs] The -- traditionally, going back to the earliest cases dealing with the right of allocution, these were attacked by a -- what amounted to a form of collateral attack, a writ of error. It has always been clear even before the issues of the expansion of the habeas corpus writ. In more recent years, it has always been true that an illegal sentence could be attacked in a collateral proceeding. So even if this is viewed as a form of collateral attack, it is quite clear, I believe, that the -- the issue can be raised in this Court. In the -- in the Government's brief, it refers to United States v. Mayer, decision of -- this on page 42 of the Government's brief, decision of this Court in 235 U.S., where the Court says that "The remedy applied only to that very small number of legal questions which concern the regularity of the proceedings themselves." Well, now, this is exactly what is involved here, the regularity of the proceedings by which sentence was imposed. The Government's suggestion that the -- that the sentence is not illegal that is rather just some defect in the procedure by which it's imposed, seems to me to be without merit. I don't believe Rule 35 is limited to cases where the length of the sentence is involved. I think that sentence can be illegal either on its face or by the procedure by which it is passed or in the method if -- well, I -- just those two, the -- the procedure and the -- and the face of the sentence. I would like to pass now to the second part of this consolidated case. No. 179 has in it two more or less separate issues. One is the question of the multiple sentences which were imposed by the trial judge. The facts appeared just from the sentences themselves. He imposed on a three-count indictment, one sentence for 20 years on the entry, another sentence for 20 years for bank robbery and a third sentence of 25 years for aggravated bank robbery. I would suppose that it had been clear since the Government's concession of the fact in Holiday and Johnston in this Court and it certainly has been accepted in all the lower federal courts that the aggravated form of robbery is not a separate crime. That Section 2113 (d) providing for 25 years sentence if robbery is committed under aggravated circumstances is merely a -- an extra five years that can be added to the sentence if certain facts are shown. That the court does not have the power to impose separate sentences for robbery and for aggravated robbery. And the petitioner's contention in this branch of this case is that when the court imposed the first sentences of 20 years for robbery, he had exhausted the power to sentence. There was no -- he no longer had any further power to impose an additional sentence.
Charles E. Whittaker: Even if the first one was void?
James Vorenberg: The first one was not void, Your Honor, at least not under this ground. It may have been void for failure to accord the right of allocution but it was not void.Put -- putting that to one side, the 20-year sentence was a valid sentence. And the 25 -- when he -- when he completed the 20 -- 20-year sentence, he had performed an effective act of sentencing the defendant. And the defendant's position is simply that the 25-year sentence is a nullity. The lower courts --
Felix Frankfurter: How can -- how can it be -- how can it be tentatively or contingently or qualifiedly a valid sentence in order to strike down from other sentence wherein the ground on which you set aside -- you actually have set aside the judgment in 70, is that there is an -- an irreclaimable effect in the sentence, that it's a void, that is -- it -- it was imposed in defiance of a requisite factor which makes it a valid sentence.
James Vorenberg: Well, Your Honor --
Felix Frankfurter: It's either valid or invalid, it doesn't -- it isn't Muhammad's Coffin.
James Vorenberg: No, Your Honor. If -- if the -- if we are right on the first branch of this case, the sentence is -- if invalid and this -- the case would be remanded to the District Court.
Felix Frankfurter: Well --
James Vorenberg: If we're wrong on that, you have a valid 20-year sentence and a --
Felix Frankfurter: Well, this -- so you're arguing the alternative on validity.
James Vorenberg: That's right, Your Honor.
Felix Frankfurter: Alright.
James Vorenberg: In any case, we suggest that if the Court does not accept the suggestion on -- that the sentencing power was exhausted that this is another reason to remand this case to the District Court to see if the District Court would have imposed the same sentence had it known that there was but one punishable offense here, that this Court should not speculate on -- on that question. This is similar to the Court's decision in -- in Yates versus United States, 355 U.S., where it set -- it set aside 10 of 11 concurrent sentences for contempt and then sent the 11th one back to the District Court to see whether he would have imposed as stiffer sentence that he had known there was only one sentenceable offense involved.
Earl Warren: Do you know if there are any States in -- in which a man would be considered a multiple offender by reason of these three convictions?
James Vorenberg: I just don't know, Your Honor. I simply don't know the answer to that. I think it is clear though in the -- in the federal -- in federal law now that there's no difference of opinion as far as I know. And I -- I would think the Government would -- would agree on that. On the third part of this case, the petitioners claimed that because of the judge's misdefinition of the crime of aggravated robbery in his charge to the jury that the jury never could have convicted for that offense. It is -- the facts, again, are -- are fairly clear. On page 31 and 32 of our brief, we cite the repeated misdefinitions by the court of the crime of aggravated robbery. The -- the crime requires a showing that persons have been put in jeopardy. Yet repeatedly, the court referred to fear as being enough or the use of a dangerous weapon as being enough. Now, with only one of those two factors involved and no showing of jeopardy, the only crime is the crime of simple robbery. For that, the maximum sentence is 20 years and our contention is that the court below imposed a -- an excessive sentence by imposing a 25-year sentence. The Government's reply to that is that the only defects which may be attacked in their motion under Rule 35 are those appearing in the common law record, the -- the old judgment rule, the indictment, the plea, the verdict and the sentence. Well, that's a rule or a limitation that grew up at a time when that was all that was available on appeal. But in this case, we have the record. There's no -- there's no problem now of -- of knowing what the court below did. And we suggest that this is a -- a situation where you have to look at the instructions to see what the jury convicted among of, to see what the juries were guilty on Count 3 man. And that if you do that, you -- you see that it was -- it meant nothing more than a conviction of simple robbery. Mr. Justice Stewart in the -- in the Heflin case, I think, made it quite clear that he -- when he thought of going out -- we leave open the question under Rule 35 as to whether you can go outside of the record, clearly not talking about the common law record because he was talking of those things which required a hearing. In the Ladner case, which I referred to earlier, the Court, I think, made it clear that it was willing to even have a hearing to determine the validity of the sentence. The final point I would like to make is that if this Court remands this case by any of the grounds we have raised, that it seems appropriate that it made it clear to the trial judge that full credit should be given for time already served and that for purposes of good time credits and parole, the sentence should be deemed to run from the date originally imposed, otherwise, it would be completely unfair penalty on him for having raised the issue here. Thank you.
Earl Warren: Mr. Kramer.
Robert Kramer: May it please the -- the Court. Following the pattern set by the very able counsel for petitioner here, I'll first speak, unless the Court wishes otherwise, on the point raised in No. 70, the question of whether or not, the trial judge here erred when he did not expressly ask the petitioner just before sentencing whether petitioner himself wished to say anything. In that connection, there are one or two things I wished to stress even though they have been brought out here in the discussion before. The first, of course, is that petitioner here was represented throughout his trial. He did not plead guilty. He stood trial and had a full trial. And throughout this trial, he was represented by counsel of his own choice, not by court-appointed counsel. And his counsel according to the Court of Appeals, which twice mentioned in the fact in its opinion below, was an able, experienced trial lawyer and judging by everything that appears in the record here, he conducted a very alert and vigorous defense and assertion of all the rights of petitioner. The record here shows he took exceptions of the charges. The record here shows he argued at length on the motion in arrest of judgment and for new trial. And there's every indication as the Court of Appeals said that he was an able, experienced, confident criminal trial lawyer. The Court mentioned that twice in his opinion found in the record on page 35, as a matter of fact in a prior decision of the Court of Appeals found in 256 F.2d 484, involving the same defendant but the way this is -- these two motions here are only the last two of four that he has made since he has began serving his sentence. In this prior opinion, the Court of Appeals again said, "Green was represented by an able and experienced criminal trial lawyer of his own choice." Again, as was brought here, his able counsel spoke on the point of mitigation of sentence. He spoke in response to a direct question put by the judge. The judge asked if the conclusion of the arguments and the motion in arrest of judgment and the motion for a new trial, you have anything further. Now, the record does not expressly show, unfortunately, to whom he was speaking when he said "you". I would assume probably it was counsel. At any rate, defendant's counsel then spoke up. He's -- what he said covers a page and a half in the record. He was followed by counsel for the codefendant, who also spoke on the problem of sentencing. In other words, both counsels for both defendants in answer to inquiry by the judge spoke on the problem of sentence. So far as appears, they said everything it was to be said. By that, I mean the United States Attorney had previously spoke his remarks cover about a page in the record on the question of sentencing. When the two co-counsel spoke here, they answered directly the statements made by the United States Attorney, that is, they pointed out that defendant here was a family man. He had two minor children and a wife and that whenever he had been able physically to do so, he had supported them. They also pointed out that this particular defendant was by no means a stranger to the state and federal criminal courts. And that if the judge, Judge Ford imposed a long sentence here because of the other pending indictments, because of the fact he was already in the state prison under a conviction, that it would mean substantially that the defendant would spend most of the rest of his life in prison. Now, counsel brought that out speaking at length. Another point I want to make is that, so far as we can tell it from the record, and the record I think is fairly convincing, the defendant here was fully confident in every way to cooperate with his counsel in his defense. By that, I mean he was a man of 37 years. He was not a juvenile. He was not senile. There's no suggestion in anytime there's any impairment of his mental capacity. Moreover, as I mentioned, he was not a stranger to courtrooms, criminal trials and court proceedings. He'd been through them all before. In addition, what's happened since his trial here, gives every indication that in many ways, he's an unusually resourceful and articulate person. As I've mentioned, since his conviction and since he's going to Alcatraz, he's filed no less than four post conviction motions. Each one, he filed himself, many of them he rolled up the papers in longhand. He carried them, all four, through the Court of Appeals to the First Circuit and three of them, he brought here asking for certiorari. All the papers he prepared himself. So, there's every indication here that defendant was fully competent and also this record, as a matter of fact, indicates that the defendant was, so to speak, talking and working with his own counsel during the trial. By that, I mean if you look at the record, you discover the United States Attorney, as I said, spoke about a page in the record about what the sentence should be. The United States Attorney stressed the fact that though the defendant had these two minor children and wife, he never actually supported them. When the defendant's counsel spoke on this question of the sentence in response to an inquiry from Judge Ford, he made a very significant remark showing that he was not unaware of the defendant's point of view so to speak. On the record in page 19, he made this remark, notwithstanding what the District Attorney has said. "He," meaning the defendant, "informed me that, he," meaning the defendant "has supported them," meaning his family, "except for the time he was incapacitated". In other words, he was -- he was conferring with his counsel during all this that was going on. He was not sitting there tongue-tied. He was not so shy and bashful. He was not unaware of what was happening.
Felix Frankfurter: Mr. Kramer, the -- the presupposition of your argument is that in each case, the appellate court, the Court of Appeals normally, eventually this Court, will be called upon to define whether the substantive purposes of 312 (a) are satisfied by the circumstances of the particular case. That's the presupposition of your argument.
Robert Kramer: That it's certainly the presupposition of what I'm talking about now. And the reason I do that, Mr. Justice, is this, counsel for the other side said that there is a division of judicial authority on this point. That is true in one sense of the word, but in at least two respects, I think, there has been no division of authority. And one of the two respects is this, so far as I am, at least in every case that's cited in the briefs here and I presume they've probably represented every reported opinion, whatever this issue has been raised before any judge, he has always gone to great length to see if there is any indication of actual real prejudice to the defendant. Now, that was done here in this case. The District Judge, Justice Aldrich pointed out the facts that I'm pointing out. Here is a defendant, fully confident, counsel of his own choice, competent counsel, counsel spoke on the question of sentencing, defendant was there all the time, conferred with his counsel, no indication the defendant wanted to speak, no indication what defendant would have said. The Court of Appeals, in affirming here, took exactly the same position. And as far as I know, in every case cited in our brief, every judge who's passed on this point has felt no matter what was the literal meaning or impact of Rule 32 (a). That in order to be sensitive, to be certain that no defendant had really been hurt or harmed, he must look into the factual picture and see whether there was any actual prejudice. I think that's a fair statement of every judge who, as I say, who has written an opinion that's been reported on this point.
Felix Frankfurter: I notice that in neither the petitioner's brief nor your brief, in a reference to a case that seems to me irrelevant in consider of your researches, I must conclude that it isn't relevant. And that's Bruno against the United States, involving another protected doctrine of criminal law, namely the right to have a jury charged with the failure to take the witness stand is not to be counted against the defendant. And the argument there was made and that's a -- the jury don't take any stock in it and was taking care of, generally, the courtroom that it must be specifically such a -- such a charge and certainly, if requested, must be specifically given. And it's not in the realm of argument that it didn't hurt (Inaudible) be given. How would I say, declared to me that this is not unlike the problem of this case, namely the extent to which you -- you withdraw from argument in a particular case a protected rule to exert in its argument and had a great deal to be set forth.
Robert Kramer: Well, I agree with you that its argument did whether or not it still does today, perhaps, is debatable. But that, I think, brings me to another point, which is already been touched on here and which I think, perhaps, is a point that has also troubled every court or judge who has been called upon to handle this matter. And that is simply this. It's quite true, as defendant's very able counsel has pointed out, that looking at this thing prospectively, one can say, "Well, this is no great burden on a trial judge." It takes only -- made -- most cases going to take a minute of his time because frequently the defendant won't say anything. If the defendant does reply why, that's all to the Government, so what possible harm is there in imposing an absolute rule and saying it is mandatory and you either do it or else. Now, that is the position taken by the Court of Appeals here prospectively. When you do it prospectively, it is quite true there will be no serious interference with the orderly processes of the criminal court. But when you do what the petitioner seeks here, when you attempt to make this interpretation of what apparently is an ambiguous rule, judging by the remarks of Mr. Justice Whittaker and by what Judge Ford did here, when you make such an interpretation of an admittedly ambiguous rule mandatory retrospectively, then it seems to the Government, and this is what troubles the Government very much, that you really get into very serious difficulties in the administration of criminal law. You do so, I think, for two reasons. In the first place, supposed this Court remands the case as petitioner seeks for resentence, that will mean that a district judge, presumably Judge Ford, over eight years after the original conviction will be called upon to resentence this defendant. That, I should judge, would not be altogether an easy thing to do. And then there is the second thing. If relief has given this petitioner here, you're not simply doing what most courts have done, leaving the door open for a showing that when there's been any -- any actual prejudice, when anybody's been actually hurt, relief will be given. But quite literally it seems to me, you're taking the door off its hinges and throwing it away. By that I mean, as the Court has already brought out, every single prisoner, who is still serving his sentence under the theory advanced by petitioner, would be entitled then to raise this point and to obtain a remand for resentencing no matter how long ago he may have been convicted.
Hugo L. Black: Why would that open the prison doors, necessarily?
Robert Kramer: It would not necessarily --
Hugo L. Black: I understood --
Robert Kramer: -- open the prison doors.
Hugo L. Black: -- I understood you to say it would, open the door and throw away what they want.
Robert Kramer: No, I don't mean open the doors to the -- to the prison. I mean you would open the door to allow him to come into court and raise this question and obtain a remand for sentencing. I do not mean they would go free. No, I agree with you. Perhaps I misled you by my statement.
Earl Warren: Does the Government object to the adoption of such a rule prospect of which?
Robert Kramer: Not in the least, Mr. Chief --
Earl Warren: Do you think it should be done?
Robert Kramer: Well, I will say this, I personally think so. I understand that there's a division of opinion on that point among the trial judges and I would think that it would be wise to obtain their views on it before or at least this Court might wish to before making such a mandatory rule but as far as the Government is concerned, we would have no objection whatsoever to the promulgation of such a rule prospectively. And this might be a very good time because you are well aware all the rules are now under study for possible revision.
Earl Warren: Well, there are -- there's a conflict. There's a clear conflict in the -- in the circuits on this -- on this matter, why couldn't we do it by resolving a conflict? Surely, the -- surely, this rule is not so ambiguous that it could be said, we couldn't resolve the conflict in -- in favor of the contention of petitioner.
Robert Kramer: Well, they would seem to me, however, and I'm not quite certain. If you mean resolve the conflict by doing as the Court of Appeals did in the Couch case by saying "hereafter", it will be done this way. The Government would have no objection. If you mean resolve the conflict in the way that the petitioner seeks here, by saying this is what the rule now means, has always been and will always mean in the future, then, for the reasons I've stated, the Government does very strongly object because we think quite frankly that it will put a very serious burden on the lower federal court.
Felix Frankfurter: I -- I am (Inaudible) therefore, I must take them from you and from Mr. Vorenberg --
Robert Kramer: Yes.
Felix Frankfurter: -- but I thought I understood you to say earlier that there wasn't really a conflict in the starting point at the cases in the Court of Appeals or in the District Court, namely, I understood you may have misunderstood me to say, namely that -- that in fact while they believed the rule is to be respected and is important and -- and (Inaudible) as we called it, they have tried this particular case to see if this would not called the spirit of it was -- was enforced, what is the fact?
Robert Kramer: Well, there are --
Felix Frankfurter: Are there Courts of Appeals that have said flatly, this is an imperative command?
Robert Kramer: No, in my knowledge, there are none.
Felix Frankfurter: How cases are there? How many Court of Appeals that that has done?
Robert Kramer: There are six Courts of Appeals. The first in this case, the Fifth, Sixth, Ninth, Tenth and District of Columbia. In addition, there are two proud judges in the Southern District of New York who have passed on it. Now, I say there is no conflict, I meant on two points. First, there's no conflict but that every judge, even when he has denied relief to a given petition, has very carefully examined the record. Second, I say there is no conflict because no judge, even a judge who was not fully agreed with the rest of his court, has ever said that under the circumstances here where the relief is sought, not prospectively, not by a direct appeal but under Rule 35, no judge has ever been willing to go so far as to say that we should give retroactive relief to the extent that it would be available if it were given under Rule 35. Let me illustrate that by discussing briefly the two cases which I think, so to speak, are most favorable --
Hugo L. Black: Before you leave that --
Robert Kramer: -- to the petitioners.
Hugo L. Black: -- you suggested --
Robert Kramer: Yes.
Hugo L. Black: (Voice Overlap) prospectively. What language could you suggest to add to this that would make it anymore definite, when it is?
Robert Kramer: Well, Mr. Justice Black, I think one might, perhaps, use some such language as is pointed out in our brief that is the New York group on this point. The Advisory Committee when they drafted this rule, as a matter of fact, referred to the New York rule but they referred to it simply for purposes of comparison. The New York rule is found page 20 of our brief and the New York rule says when the defendant appears for judgment, he must be asked by the clerk whether he had any legal cause to show why judgment should not be pronounced against him.
Hugo L. Black: Well, I would -- would that stand, unless we've said by this? We mean this that the defendant must be, this one says before imposing the sentence, the court shall, it doesn't say it must.
Robert Kramer: (Inaudible)
Hugo L. Black: -- that he shall accord to the defendant not to make a statement in his own behalf.
Robert Kramer: Well, that would seem to me to be less mandatory than the New York rule. However, I must be honestly and here make, perhaps, a slight collection -- correction in a statement made in the very excellent brief filed by petitioner, "Not every New York court has held the even under that language, it is mandatory." Not every rule. Not everyone. The -- the Sheenan (ph) case which we cite direct, there on page 20 of our brief is a ruling by a trial judge in New York who held that even under that light, it was not mandatory that the right could be waived under the very circumstances involved in our case.
Felix Frankfurter: I must say -- I must say that the New York rule takes away the consideration that has been knocking around in my head as to the importance of observing the rule, namely that the impact of the judge, he could say a man puts on a silk gown and he's same old man, I don't think so. I'm not taking for myself that the -- that the figure of justice represented by a judge maybe vocative policies that I should deprecate being substituted by having the clerk aspect question with myself.
Robert Kramer: Well, let -- let me stress and just discuss briefly these two cases would seem to me, as I say, most favorable to the petitioner and yet, I do not think actually would grant relief here. One is the Couch case, cited in our brief on page 29. Eight judges of the District of Columbia sat on that case. The ruling of the court was that the rule should be mandatory but only prospectively. Now, that was a case that came up under so-called collateral attack, not by a way of direct appeal. Two of the eight judges dissented on the ground that they did not think the rule should be made mandatory even in the future. Four of the judges in a specially concurring opinion indicate that the main reason they wish to have the rule prospective only in the Couch case, was the very point I've been stressing here, that this was not a direct appeal. It was a collateral proceeding under Rule 35 or else 28 U.S.C. 2255 and that they were afraid that if they did not make the rule prospective only at least in such a collateral attack, it would have a rather devastating effect on the federal courts. Now, they did indicate, though they, of course, it was not a square holding that if this had been a direct appeal, they might have been willing to make the rule retroactive to that extent. Now, the Taylor case has been mentioned. Let me briefly point out.
Earl Warren: But before you leave --
Robert Kramer: Yes.
Earl Warren: -- that one may I ask you if at this time in the District of Columbia all district judges are required to ask the defendant personally if he has something to say?
Robert Kramer: I would assume so because the holding of the Court in the Couch case was to this effect, that we will hold it reversible error even on the collateral attack if any defendant sentenced after our opinion in this case has not been asked this question. Now, I do not know the actual practice whether the district judges are conforming to it but I would assume they are.
Earl Warren: Well, that isn't very ambiguous, is it?
Robert Kramer: No, they left no doubt about it.
Earl Warren: Yes.
Robert Kramer: Now, the Taylor case, it -- nine judges sat on that. Five -- this and the Taylor case was a direct appeal. It was not a so-called collateral attack under either Rule 35 or Section 2255 of Title 28. It was a direct appeal. Five of the judges writing the opinion of the court, ruled that this was a right that could be waived, waived under such circumstances as we have here where defendant is represented by counsel of his own choice and where counsel actually speaks on this question of sentence. However, they held that there was no waiver under the facts of that particular case. Four of the judges specially concurred, indicated that they did not think when the question came up by way of direct appeal as it did in the Taylor case that the right should be held waiver. They very carefully indicated, however, that if this were a matter of collateral attack, as is our case, that then they might want to think long and hard about making any sort of non-waiver rule. Now, as I say, as far as I know, those are two most favorable decisions and neither one of them would go so far as the petitioner asked you to go here. Petitioner asked you here under circumstances that many courts would say amounted to a waiver. That's what the majority would've said in the Taylor case, namely petitioner has counsel of his choice, who is competent, who speaks on the question of sentencing. Petitioner is there and present in court, conferring with his counsel and there's not the slightest indication anywhere in the record that petitioner actually wanted to speak. Now, that point was stressed by both courts below.
Earl Warren: That wouldn't suffice him, would it?
Robert Kramer: Not first -- not when they said, prospectively --
Earl Warren: Right.
Robert Kramer: -- no.
Earl Warren: The rule has an existence there now.
Robert Kramer: That's right.
Earl Warren: It would not count if said.
Robert Kramer: That is correct.
Felix Frankfurter: First is, there is no problem if there's any indication that -- that the defendant wanted -- wanted to speak. Is there any (Voice Overlap) --
Robert Kramer: That is right.
Felix Frankfurter: -- that he wanted to speak and wasn't asked or wasn't allowed any of that the grossest kind of cutting off of -- they don't even need a rule for that, I should think.
Robert Kramer: That's right. Well, the District Judge emphasized out in this case. The -- his opinion in the record at page 30. He said, "Even now, he," that is the defendant, "does not say that he wanted to say anything at the time or what he would have said". And the Court of Appeals stressed that point here in this case. They said again, quoting from their opinion in the record at page 36, "Nor is there any indication in the present motion or supporting brief as to what if anything, Green might've been able to add in elaboration of the statements of his counsel."
Potter Stewart: Mr. Kramer.
Robert Kramer: Yes.
Potter Stewart: I'm taking you back several steps, some -- in answer to a question of Chief Justice, you said that the district judges were divided in their opinion as to the wisdom of this rule, quite apart from any retrospective proposition, just as to the wisdom of -- of the Couch rule, can you tell me, to satisfy my curiosity, what -- what objection do you have to those who do object?
Robert Kramer: Mr. Justice Stewart, I honestly don't know. All I can tell you is this, I made some inquiry before I prepared, while I was preparing this argument and I was told in general as far as the Department of Justice was concerned, as far as our criminal division was concerned that they would have absolutely no objection to a prospective rule here that would make it mandatory. But I was also cautioned that this was a matter and the informants said, just as you did, we don't quite understand it but it is a matter on which some district judges have quite pronounced opinion.
Felix Frankfurter: So, how many is some?
Robert Kramer: I do not know.
Felix Frankfurter: How -- what kind of a method is thrown out to catch these things?
Robert Kramer: Well, I would point this fact out that again in the -- apparently, I don't know how Judge Ford would feel about but apparently Judge Ford, judging by his conduct in this case, took the position somewhat similar to Mr. Justice Whittaker, is that he did not need to ask the question here directly of the defendant on the circumstance. Judge Aldrich who wrote the -- the lower court opinion here passing directly on this motion indicated in the footnote to his opinion that he too, as he phrased it, only occasionally, directly asked the defendant this point. Now, there -- those are, so to speak, two district judges. Unfortunately, as brought out --
Potter Stewart: But they don't indicate that they are opposed to it in principle --
Robert Kramer: I don't believe --
Potter Stewart: -- or certainly they don't indicate why they are opposed --
Robert Kramer: No.
Potter Stewart: -- to it, if they are.
Robert Kramer: All -- all I was trying to bring out was that I would not like to foreclose the district judges if they wish to say something on --
William J. Brennan, Jr.: Well, do you know, Mr. Kramer, whether any of these sentiments have developed at the sentencing seminars of the district judge of the (Voice Overlap) --
Robert Kramer: I do not know. I do not know, certainly.
Earl Warren: Didn't the court below indicate that it thought it would did much better policy if he had that?
Robert Kramer: Yes, the court below indicated that and as a matter of fact, I think it's fair to say that several courts have indicated that, at the same time though, refusing to give relief. And I think it's fair to say that one of the things that bothers many court in a situation such as this about giving relief is the vast retroactive effect because I think most Court of Appeal judges are aware of this that there are a good many trial judges like Judge Ford and Judge Aldrich who have not been in every instance asking this question directly of the defendant. And they are afraid that if they give retroactive relief, particularly if they give it when it -- there is not a direct appeal but a so-called collateral attack that it may have very serious repercussions on the administration of justice in the federal court.
Charles E. Whittaker: May I ask --
Tom C. Clark: (Voice Overlap) --
Charles E. Whittaker: -- you what would be your view of this situation and -- this or this occur when Justice (Inaudible) asked you, on a direct appeal is stated and there, the State seems to be quite (Inaudible) without prejudice, is that an answer?
Robert Kramer: Well, Your Honor, I should like to reserve an opinion on that because I, myself, would be inclined to say that considering the fact, how apparently so many of the trial judges have been, shall I say, misled by the language of the present rule whether they should've been or not, I don't know. I would wonder whether you should even give that much retroactive effect, namely giving relief by way of direct appeal unless there has been an actual showing of prejudice.
Charles E. Whittaker: Well that --
Robert Kramer: But I --
Charles E. Whittaker: -- that's what we're getting to.
Robert Kramer: Yes.
Charles E. Whittaker: If there's a direct appeal when the point is made --
Robert Kramer: Yes.
Charles E. Whittaker: -- then the Government chose under Rule 52, no prejudice, is that an answer?
Robert Kramer: Well, I should think it would be. I should think it would be at this time.
Charles E. Whittaker: But if it is, if it is an answer, then the question is not jurisdictional and the judgment isn't void, near error, isn't that right?
Robert Kramer: That would be correct.
Earl Warren: I don't think probably that it -- this would be more -- the rule would be more necessary in cases where there is no appeal, where a man pleads guilty and his -- he stands before the court, the courts never heard him speak and had no opportunity to see him and he can't appeal because he's just -- he just pled guilty. But certainly, he ought to have an opportunity at that time to say what he wants to say in his own defense.
Robert Kramer: I would agree entirely with what you're saying, sir, and of course, in most cases, he pleads guilty, the man does not have counsel, which I think is a very important factor. I think --
Tom C. Clark: (Inaudible) they asked questions?
Robert Kramer: I beg your pardon, sir.
Tom C. Clark: Where that has counsel, they ask questions ordinarily do that?
Robert Kramer: I do not know. I would hope so. I do --
Charles E. Whittaker: -- in your view that in most cases in a federal court from pleas of guilty, defendant does not have counsel?
Robert Kramer: I think in a great many that's true, is it not?
Charles E. Whittaker: Well, but none -- in most cases.
Robert Kramer: I really do not know.
William J. Brennan, Jr.: Well, what they do to formally waive it? What about the Sixth Amendment?
Robert Kramer: Well, it would depend on nature of defense. I -- it's, of course, it's a capital offense. They would have to have (Inaudible)
Speaker: (Inaudible)
Robert Kramer: In many of those offenses -- in many cases, I would imagine, however, that the counsel might well be court appointed and I think there is --
William J. Brennan, Jr.: I -- I thought (Voice Overlap) --
William J. Brennan, Jr.: (Voice Overlap) Sixth Amendment (Inaudible) unless they formally waive.
Tom C. Clark: Mr. Kramer because there is a feeling among certain defendants if they got a lesser sentence if they do not have a lawyer.
Robert Kramer: I have been told that. I cannot vouch for the truth of it.
Tom C. Clark: And you've gone to a federal court on hoping that a term on the sentence and we'll see most of the time (Inaudible) my way that over half of them do not have lawyers because they feel that the judge will be more lenient with them in its sentence. I want to ask you a question about this sentiment of the judges, do you think that the reason that Judge Aldrich and Judge Ford indicates that or have not asked this question directly to defendants rather to lawyers and because this rule gives us the word of Ford to defend an opportunity or --
Robert Kramer: I --
Tom C. Clark: -- do they have, as you indicate to my mind, just a feeling against asking that question or against the rule itself?
Robert Kramer: I don't as -- I have no reason to believe that they have any feeling against the rule except it is possible some of them think that in effect that (a) it might encourage some defendants to speak up and to speak rather at length and that the defendants might very well not say much of anything to the point, it might constitute inadvertent upon the court's time.
Tom C. Clark: It learned more from the lawyer?
Robert Kramer: Yes.
Felix Frankfurter: And I -- and I think that -- my guess would be, knowing the two men pretty well my guess would be that the uniform they ask in cases where there is no counsel.
Robert Kramer: Yes.
Felix Frankfurter: That where this is a counsel, they think his -- they -- they would assume and with good justice, I should think, in most instances anyhow that his protection, the protection to be solicited or as the lawyer who stands in front of him will take care of him.
Robert Kramer: Yes. I think it's pretty plain from the record in this case that that is exactly what Judge Ford felt.
William J. Brennan, Jr.: Well, I would supposed too, Mr. Kramer, pre-sentence reports would be simply the way we make them up in the federal system, have been read by judges before sentencing and pretty well know what it --
Robert Kramer: Yes, as a matter of fact --
William J. Brennan, Jr.: (Voice Overlap) they may not feel that there's any contribution (Inaudible)
Robert Kramer: That's right. As a matter of fact, the record shows here that the judge refused to impose sentence on the day the verdict was returned even though counsel said they were ready to proceed and one of the reasons he gave, one of two reasons was that he wished time for the pre-sentence report to be completed and to have time to study. He also wished to have time to consider the motions for a new trial and an arrest of judgement.
Earl Warren: But it seemed to me that the -- that the court for the protection of the record itself would -- would always do this because we have so many court-appointed counsel and -- and counsels appointed on the same day of the arraignment and the -- the lawyer speaks to the defendants just a few moments and he said, "Well, you -- you admit your guilty," and -- and so they walked up and -- and counsel pleads him guilty and then, "Have you anything to say?" Well, the lawyer -- the lawyer is not in the position to say very much under those circumstances if -- if a question is put directly to the defendant, he might have much that he could say in -- in a few words that would cause the -- the judge to -- to distinguish perhaps between him and the dangerous criminal.
Robert Kramer: I think that is correct, Your Honor and I think that is why both the District Judge here, District Judge Aldrich and the Court of Appeals stressed the fact that this man not only had a competent experienced lawyer but one of his --
Earl Warren: Yes.
Robert Kramer: -- own choice and that they -- they took for granted, of course, the fact that he had not pled guilty and he had a full trial.
Earl Warren: Well, I have an idea that this Court and the Courts of Appeals and even the District Court will waste more time determining whether in -- in specific cases, a man is well represented and his attorney was articulate and -- and energetic before he determines whether -- whether he's been prejudiced and he would be to just let them -- just ask that question all the time.
Robert Kramer: Well, I think it's -- certainly is prior to making a prospective rule is concerned that that argument is --
Earl Warren: Yes, I am --
Robert Kramer: -- quite sound.
Earl Warren: -- I understand your difference. Yes.
Robert Kramer: And that -- that is the position taken, I might say, by the four judges who concurred specially in the Taylor case in the Ninth Circuit, exactly your position. Well, if the Court please, I should like now to speak briefly as the petitioner's counsel about the issues raised in No. 179. The first issue there, as petitioner's counsel had pointed out, is whether or not, because of the fact and the Government concedes as petitioner's counsel says that there was actually, after the jury's verdict of conviction on all three counts, only one offense here. Whatever language you use, whether Counts 1 and 2 were varies under Count 3 or whatever you want to call it. There's no argument about that. That was recognized by the district judge below and by the Court of Appeals also. But where the difficulty comes is in this problem of sentence because the argument that petitioner has made, as we understand it, is simply this, petitioner says, "When the judge went to sentence," as was natural, "he imposed 20 years, Count 1, 20 years, Count 2, 25 years, Count 3, all to run concurrently." And because he happened to impose first, a 20-year sentence under Count 1 and then another one under Count 2, he had, so to speak, exhausted his power of sentencing because there is only one offense here and therefore, the 25-year sentence, which was the one he pronounced last, was null and void. Well, of course, we are dealing here you understand not with consecutive sentences but with concurrent. One point I wish stress is that I do not believe it's fair to say the trial judge here did not realize the actual situation in his charge to the jury, found on pages 9 and 10. He twice referred to the fact that Count 3 was not really a separate offense. It was merely an aggregated form of the other counts. Also, in the -- in dealing with the motions made in arrest of judgement where this point was brought out, though not in the form that is quite brought out here, the trial judge again indicate that he realized the problem involved. Unfortunately, he made a technical error and that he imposed three concurrent sentences when, properly speaking, he should have imposed only one sentence presumably one on the third count on which the jury had convicted, the aggravated to come. Where we part company, however, with petitioner here is that we do not think this Court should adopt any such automatic rule as that when you have a situation such as this, it is the first sentence which the judge pronounced, so to speak, that stands and all the others are void. As a matter of fact, so far as we know, although this question has been raised quite frequently, no court has ever reached that result. And I think there are some reasons for that. For instance, take the O'Keefe case, which is cited at page 37 of our brief. The O'Keefe case involved a situation very similar to our. There were two counts, the first count was for a simple bank robbery, the second count was for the aggravated offense. Now, for some reasons, which doesn't appear in the Court's opinion, the trial judge after a verdict of conviction on both counts happened to pronounce sentence first on Count 2. He just happened to. The answer really, it seems to us, is the answer that the District Judge Wyzanski made when he was dealing with this point, it's found in -- in his opinion on page 2 of the record. He said, "The true situation actually is that in one document, Judge Ford simultaneously imposed upon the defendant this sentence. It's not accurate to say actually that he imposed them in -- in point of time at different problems. It's a simultaneous thing." Now, again, we also do not relate that the series should be adopted which petitioner has suggested, namely that this Court should follow the idea in a situation such as this of affirming the lightest sentence only. Again, that argument was made below and the answer, I think, is contained in the sentence of the opinion of the Court of Appeals found in the record at page 28 stating that this -- this same argument have made repeatedly to Courts of Appeal. And in every instance, the sentence in the count which carried with it the greater penalty was held valid. And we cite on pages 37 in our brief the several of -- only a few actions of the many cases which have done this. Now, this situation seems to us to differ very decidedly from the situation in the Yates case, which was referred to here by petitioner. In the Yates case, not only do you have 11 counts but more important than that, it was quite clear in the Yates case that the trial judge mistakenly but genuinely believe that each count was a separate distinct offense. That is not true here. The trial judge realized that Count 3 was just the aggravated form of the other counts. Unfortunately, as I say, he was mistaken in the method he tried to handle it, namely by imposing three concurrent sentences. But I think it's fair from reading the remarks of the trial judge to conclude that what he meant to do, even though he did it inartistic, was to impose for the whole transact for the one offense which the jury had returned a verdict of conviction, the aggravated form of bank robbery, a sentence of 25-year. That's what he meant to do. Now, he did it, I grant you, in an inartistic manner.
Earl Warren: So you think the other two would fall but that one would stand.
Robert Kramer: That is correct. In fact, the Government would -- have no objection whatsoever if this Court should void the two concurrent 20-year sentence. The Court of Appeals said that it was unwilling to do so because it thought that the two concurrent -- two shorter concurrent sentences in no way prejudiced the petitioner.
William J. Brennan, Jr.: Well, does something like this have any bearing on (Inaudible) the fact that were resentence (Voice Overlap) --
Robert Kramer: Well, I have attempted -- I inquired about that and the point is discussed briefly in -- in our brief and also, it is raised in the brief of petitioner. And unfortunately, it's raised in our brief on Footnote 10 on page 37. Unfortunately, as near as I can tell, the Courts of Appeal have somewhat differ. As I understand the situation is this, the Board of Parole frequently do take into account the fact there have been multiple sentences but almost always that is where the multiple sentences are given for different transactions at different time. On the other hand, most Court of -- most Boards of Parole, as my understanding, no one up above the legal situation, so that in the case such as this, they would realize, there was only one offense.
Felix Frankfurter: This may be coming forth in -- in some aspect of immigration laws, Mr. Kramer, where more than one offense is required affordability.
Robert Kramer: Well again, I should think that like Boards of Parole, this fact would be taken to account.
Felix Frankfurter: Well, I know but that's why it makes it important to wipe to stay clean so that they shouldn't be on the record. Well, then I should like to make it clear that the Government would have no objection at this time if the two 20-year sentences were void.
Potter Stewart: But he is an alien, I think, doesn't he? Wasn't -- wasn't -- I just reading that he is an alien?
Robert Kramer: I don't believe so. I'm not sure.. He has raised that point. I think it is somewhat disputed and it certainly does not appear in the record directly. If I may, I should like to take the minute or two longer.
Earl Warren: Yes, may I ask -- ask Mr. Vorenberg, if he -- would you like to finish tonight, so you have a few moments later, would you rather do that and come back tomorrow morning?
James Vorenberg: I would be very glad to Your Honor but I don't (Inaudible)
Earl Warren: Well, if counsel -- there's only going to be a few moments, we -- we might finish it tonight.
Robert Kramer: I don't think I've actually exhausted my full hour.
Earl Warren: No, you have not. You have about 15 minutes --
Robert Kramer: Yes.
Earl Warren: -- should you like to take it.
Robert Kramer: Yes, well, I don't think I will need perhaps all of that.
Earl Warren: Yes.
Robert Kramer: I don't wish to intervene to either Court or counsel.
Felix Frankfurter: (Inaudible) are you going to use a lot of fraction of 15 minutes, Mr. Kramer?
Robert Kramer: I might.
Felix Frankfurter: It is not intended to -- to inhibit or order that you could get.
Robert Kramer: Well, I might and so I don't wish to intervene with you, sir.
Earl Warren: Well then, we'd better go over until tomorrow.