Earl Warren: Number 16, Jerry Douglas Mempa, petitioner versus BJ Rhay, Superintendent, Washington State Penitentiary. Mr. Schwab.
Evan L. Schwab: Mr. Chief Justice Warren and may it please the Court. I am representing the petitioners Jerry Douglas Mempa and William Walkling in both case number 16 and case number 22. We filed a joint brief covering both. These cases present a virtually identical issue to this Court, namely, whether or not the Fourteenth Amendment confers the right to counsel during probation revocation proceedings and at the sentencing which follows. The Washington Supreme Court held that these petitioners did not have a right to counsel when they were held into a hearing which was presided over by a superior court judge where they were opposed by a deputy prosecuting attorney and were the basic issue with their continued eligibility for freedom. We are asking this Court to reverse those decisions. Since they present identical issues with only differences in facts, we ask leave of the Court to consolidate these cases for argument. My opponent Mr. Way joins in this request.
Earl Warren: Yes.
Evan L. Schwab: I would like to add half an hour for each case, giving an hour for me and then give Mr. Way an hour on this too. Turning to the facts first in number 16, Mempa versus Rhay, when Jerry Douglas Mempa was 17, he was arrested in charge with the crime of burglary. An attorney was appointed to represent him and he entered the charge -- excuse me. This was joyriding. It was a burglary charge in Walkling. He was charged with joyriding, which in the State of Washington essentially is stealing a car. People in this age bracket frequently are involved in this offense. An attorney was appointed and the matter came on for trial and he pleaded guilty. Mr. Mempa was sentenced to 30 days in the county jail as a condition for a deferred sentence on the charge of joyriding and such was not entered. The order which was entered by the superior court judge is what we call in Washington, an order of deferred sentence. It's also called probation in State of Washington. He was placed under the supervision of the Washington State Board of Prison Terms and Paroles and this is prior to obey their rules. Four months later, Jerry Mempa was arrested and brought back before the court on the prosecutor's motion to revoke the probation which had been granted earlier. He was still 17 years of age and he was accompanied to the hearing only by his stepfather. He was not asked if he wanted an attorney. He was not asked to have an attorney and nothing was said about the attorney who had represented him four months earlier. The prosecutor read the motion to revoke probation in the matter -- then got underway. The court asked Jerry Mempa if he had been involved in this alleged new violation of probation which in this case was burglary. He answered in the affirmative. At that point, the probation officer took the stand and testified as to the facts concerning this alleged burglary that Jerry Mempa was involved in. The judge asked the probation officer if it was not true that Mempa had originally denied this charge when he was arrested but subsequently admitted it. The probation officer said yes. At that point, the judge announces that he was revoking probation. He signed the order --
Potter Stewart: Mr. Schwab, you said the probation officer took the stand and testify as the -- as to the facts and circumstances surrounding the burglary. Well --
Evan L. Schwab: That's right.
Potter Stewart: -- I assume that probation officer was an eye witness to the burglary.
Evan L. Schwab: No, he was not Your Honor. This is a common practice in Washington hearing.
Potter Stewart: What did he testify.
Evan L. Schwab: The practice in our state and what happened in this case is that the prosecutor, excuse me. The probation officer testifies to the facts. It's all hearsay. He may have interviewed the witnesses who were eyewitnesses. He may have interviewed the policemen who were familiar with the case. He may have heard taken a statement from the accused.
Potter Stewart: This was just kind of a summary of his investigation or whatever that investigation might have been, is that it?
Evan L. Schwab: That's right. This is the way it's commonly done in our state.
Potter Stewart: Yeah.
Evan L. Schwab: The eyewitnesses are rarely brought in. There's rarely a chance to confront them.
Potter Stewart: And who was the -- who initiated this proceeding to revoke probation.
Evan L. Schwab: All we have on the record is that the prosecuting attorney filed a motion to revoke. They way it usually works if the man is arrested or a complaint is made by the probation officer. If it's a new crime, it would originate with the police. If it's someone who calls a probation officer, he would initiate it by calling the prosecutor and asking that this proceeding be convened. At that point, the men are generally arrested and the proceeding --
Potter Stewart: And then the prosecutor files a motion, does he end (Voice Overlap).
Evan L. Schwab: That's right. The prosecutor represents the state in one of these hearings. Jerry Mempa was not given a chance to cross-examine the probation officer. He was not asked to make a statement in his own behalf. An order was simply entered revoking the probation and sentencing him to a term of ten years in the state penitentiary on that original charge of joyriding.
William J. Brennan, Jr.: Let see, is that the maximum (Inaudible) on that offense?
Evan L. Schwab: Yes it is, Mr. Justice Brennan.
William J. Brennan, Jr.: Did he get any credit on these ten years.
Evan L. Schwab: In the State of Washington and this is generally up to the State Board of Prison Terms and Paroles. Ordinarily, someone sentenced for joyriding would have expected to be out within a year or two I think. Jerry Mempa has been there since 1959.
William J. Brennan, Jr.: Well, I know. I wonder did he get on the ten years any credit for the 30 days he previously served or any of the time he was on probation --
Evan L. Schwab: That's generally up to the board. I doubt it. I doubt if they gave him --
William J. Brennan, Jr.: So he had ten years from the day that he was brought back in his probation (Voice Overlap).
Evan L. Schwab: That's right and he is still there. It was eight years ago.
Byron R. White: When would he be eligible for parole?
Evan L. Schwab: Well, Mr. Way could answer that better than I since he is with the Attorney General's office. I think on a ten-year charge, it would be after a year or two but I'm not that familiar with our parole procedures.
William J. Brennan, Jr.: But he's been there now for eight years.
Evan L. Schwab: That's right. I believe he was paroled once.
William J. Brennan, Jr.: Since then.
Evan L. Schwab: Since then yes, and violated the terms. I'm not --
Speaker: Is that on the burglary charge?
Evan L. Schwab: No, he was not Your Honor. They proceeded to revoke instead. In 1965, he filed the pro se petition for writ of habeas corpus for the Washington State Supreme Court, arguing that he had been deprived of his constitutional rights under the Sixth Amendment and the Tenth Amendment of the Washington State Constitution and that he had not have a lawyer. To the importance of the matter, our State Supreme Court held an en banc hearing on the issue. In other words, all nine of our judges heard the case instead of just the department. But Mr. Mempa was not invited to argue and no one was appointed to represent him. The only one who argued the case was a representative from the State Attorney General's office. I am told that he may have presented a summary of the points in Mr. Mempa's behalf. A comprehensive opinion was delivered by the State Supreme Court which divided six to three on this issue. They denied petition for writ of habeas corpus. Our court faced the issue very squarely and said the precise issue was whether or not he was entitled to counsel under the federal or state constitution is in this hearing. The Court characterized the original grant of probation as a privilege or grace and exercise of the chance that was grace. The Court said that since there were no constitutional rights to the acquisition of probation of any status, there were likewise no constitutional rights surrounding its revocation. The Court characterized this whole proceeding as essentially quasi administrative in nature, saying that it was analogous to the -- to other phases of penal administration within the State of Washington.
Abe Fortas: It's about seven years, wasn't it, from the date of the sentencing to the time when he filed for habeas?
Evan L. Schwab: That's right, Your Honor.
Abe Fortas: Seven years.
Evan L. Schwab: He had been -- I've met him and he follows decisions of this Court very closely after he read the Gideon case, he started thinking about this and wrote his own petition and sent it in. The Washington Supreme Court --
Potter Stewart: There were some indication there -- in this case of a hearing on a quite separate non-related problem as it is having to do with the waiver of the juvenile court's jurisdiction.
Evan L. Schwab: That's right.
Potter Stewart: What happened to that aspect to this case?
Evan L. Schwab: After --
Potter Stewart: Are you suggesting that we should hold this or that I'm not going to move --
Evan L. Schwab: Now that's now gone by the boards. After this Court's Kent decision, our court begins to change its procedures in its juvenile area. And particularly after the Gault decision handed down by this Court, our state completely revamped its procedures. In any event, during -- Mempa was 17 when this arrest occurred. The order waiving juvenile jurisdiction and transferring him to adult authority was entered while he was an escapee from juvenile court custody. He was given no hearing of any sort. Under Washington State law now, this entitled him to a new hearing on the original waiver of jurisdiction. The hearing was held some months ago in Spokane Superior Court and the judge concluded that the original waiver of jurisdiction was proper. That was the end of the matter.
Potter Stewart: So that's washed out.
Evan L. Schwab: That has been washed out. That was pending at the time we filed for certiorari in this case.
Abe Fortas: Does he escape to get a better law library facility?
Evan L. Schwab: Well, that was when he was 17 Your Honor, when he was first arrested in joyriding, they had him and he ran down the hall and got away and he gave himself up a few days later with his stepfather. Since then, he spent time in Monroe which is our reformatory and then he was transferred to Walla Walla which is our penitentiary and I think it has a better law library than Monroe. Our State Supreme Court concluded its opinion in this case by stating and I quote, no appeal and no petition for habeas corpus will be successful in this Court where the issue is whether the probationer was accorded his constitutional due process rights at the hearing. The answer is simple. He has none. I'd now like to turn to the facts in number 22, the Walkling case. They're very similar and I'll try to go through them a little faster. In 1962, Mr. Walkling was arrested and charged with the crime of burglary. He had an attorney and I don't know if he was appointed or not. He pleaded guilty and the court placed him on probation for three years, conditioned upon serving 90 days in jail. In 1964, the charges were made that he had been involved in several counts of forgery. He was arrested and brought in the court on a motion to revoke probation. On the day he appeared which was in May, he informed the court that he needed continuance to secure an attorney and incorporate the matter over one week. A week later, Mr. Walkling was in court at 9 o'clock and said, Your Honor, I think an Olympia lawyer named Smith Troy is supposed to represent me. This Court held the matter in advance for 15 minutes when no one had appeared by 9:15, the court proceeded. Mr. Walkling did not have counsel. The record is unclear as to precisely whether or not he requested the appointment of counsel or said anything further. He alleges in his habeas corpus petition that he repeatedly requested counsel. Unfortunately, either reporters' notes were not made of that hearing or if made, the reporter is dead and no one can find the notes. So we have no concrete proof that he did or did not request a lawyer. However, in the record is an affidavit from Harold Cook who was then the deputy prosecuting attorney and who appeared against Mr. Walkling. Mr. Cook is now the prosecuting attorney for Thurston County. In his affidavit, Mr. Cook states that he cannot remember what exactly happened at this precise hearing. But he said, Judge Clifford for whom this matter came on for hearing had a practice on all probation revocation hearings of allowing the appearance of retained counsel but he took the position that there was no constitutional right to appointed counsel for indigence. He did not have a practice of advising of a right to counsel if a request was made for appointed counsel, his practice was to turn it down but he always accommodated retained counsel.
Byron R. White: Ready to dispose of this parole reduced, if he was retained?
Evan L. Schwab: Nothing in the record, Your Honor. No. Nothing about Judge Clifford. I can state from my own personal knowledge somewhat what judges in the State of Washington, based on Kings County.
Byron R. White: The first (Voice Overlap) is there a full blown hearing with witnesses or --
Evan L. Schwab: Well, in a limited degree it is.
Byron R. White: It's still a hearsay matter though.
Evan L. Schwab: There's a hearsay problem which of course most lawyers will object to it and try to do something about and I think the lawyers -- I think many times, it's like so many criminal case demands cut, red handed and obviously did it and the lawyer spends more of his time trying to negotiate something, trying to argue that notwithstanding this violation the man's probation should not be revoked. In Washington, probation can be revoked for very minor things. For example, the probationer's neighbor might have called the probation officer and said, I saw him drinking beer in the tavern last Friday night. This maybe a violation or he's been out after curfew or he left the county. There are a great number of little things which can justify revocation. Many times, the lawyer will try to attack those and try to argue that notwithstanding this the man should be left on probation. Most lawyers that I know of would definitely raise the hearsay issue. Demand a right of confrontation of the witnesses. Now our court is held that there is no right of confrontation in these hearings.
Byron R. White: I suppose that would follow holding counsel requirements.
Evan L. Schwab: The right of confrontation? I'm not sure, Your Honor. I think there should be a right of confrontation in one of these hearings. My basic position today is that the most indispensable element in one of these hearings is the right of counsel. I don't think from those flows other rights but I think that is the one thing without which the man cannot have a fair hearing.
Byron R. White: Are you relying on the Sixth Amendment?
Evan L. Schwab: Yes, I am Your Honor and the Fourteenth.
William J. Brennan, Jr.: What happened to Walkling? Did he get --
Evan L. Schwab: Well, he was given -- his probation was revoked and he was sentenced to 15 years on these 14 different counts of forgery.
William J. Brennan, Jr.: That's within the maximum?
Evan L. Schwab: Yes, that is.
William J. Brennan, Jr.: Initially, you get three years.
Evan L. Schwab: Initially, he was placed on probation for three years which means in the State of Washington that if he had been a law abiding citizen for three years, he could have been made a motion to wipe out his record and to do away with this entire offense but he was brought in on this forgery. In this case too, the probation officer was the only one who testified. He testified about the 14 counts that were alleged against this man.
Thurgood Marshall: Am I correct that in 16, the judge told him that you're sentenced to 10 years of the original hearing.
Evan L. Schwab: In the Walkling case, Your Honor?
Thurgood Marshall: In the Mempa case.
Evan L. Schwab: The Mempa -- Mempa was only sentenced to 10 years.
Thurgood Marshall: Didn't he say you're sentenced to 10 but I mean the original conviction in Mempa, the judge as I read it has been sentenced for 10 years.
Evan L. Schwab: Well, a funny thing happened in the Mempa case which I will be happy to clarify for the Court. At the conclusion of the hearing, the judge said, very well, it is further judgment of the court that you will be confined for a maximum period of 10 years. And now I'm going to suspend every bit of that except 30 days. That sounds like a suspended sentence instead of a deferred sentence. So the prosecutor then said because Your Honor, actually, what you're doing is placing the defendant on probation and the judge said, Yes, that is the effect of it except that he serves 15 days and I would make it for two years. And the judge says, This is a probationary order Mr. Roe with the exception of his serving 30 days. Now, the actual written order which was entered in the Mempa case was an order of probation not an order of suspended sentence.
Thurgood Marshall: And in the second case, he didn't mention anything except three years.
Evan L. Schwab: In Walkling, that's right. Well, the judge in Mempa --
Thurgood Marshall: Is there any difference in the two?
Evan L. Schwab: No, nothing of significance Your Honor. The judge in the Mempa case -- these were different judges, had the suspended sentence and deferred sentence somewhat mixed up and by saying, first, I'm going to sentence you but I'm going to suspend it. Whereas in Walkling, the judge used the correct terminology without even referring to any length of time and he said, I'm going to defer sentence in you but I will put you in jail for 90 days.
Thurgood Marshall: Well, he had no question. In the first case, the defendant had no doubt that if he filed his probation he can get 10 years. He doesn't have any doubt, did he?
Evan L. Schwab: Yes, there wouldn't be doubt, Your Honor. The sentence had not been entered. The judge was free in the first case if probation violation subsequently --
Thurgood Marshall: The judge did say I'm going to give you ten years.
Stephen C. Way: Yes, he did Your Honor but the written order once he signed --
Thurgood Marshall: He did use the figure ten years.
Evan L. Schwab: Oh, I would think the man would reasonably expect that he would get ten years but the judge wasn't obligated.
Thurgood Marshall: And in the second one, he did know how much he might get.
Evan L. Schwab: That's right, Your Honor.
Thurgood Marshall: You would see the difference in them?
Evan L. Schwab: Well, with one exception now by and large these sentences which are entered in the State of Washington are set by statute. The judge generally gives the maximum sentence whatever the statute says, he then makes the recommendations to what he thinks the minimum should be and then the State Board of Prison Terms and Paroles has a final decision as to how much this man actually has to serve.
Speaker: (Inaudible)
Evan L. Schwab: It's hard for me to answer you, Your Honor. I really don't know enough about it. I know that in criminal cases I've handled, we always try very hard to get a low recommendation from the judge. We think it's important in practice but -- and how much attention is paid, I don't know. I think it depends on the variety of the type of offense and how thoroughly into the man's background the judge investigated.
Speaker: A revocation or parole (Inaudible) under the attack.
Evan L. Schwab: A parole Your Honor or probation?
Speaker: And probation.
Evan L. Schwab: In the State of Washington, the rule is as follows, the order deferring sentence and placing the man in probation is not appealable unless, number one, it was entered after a trial on the merits; and number two, the man receive a small amount of time in jail as a condition of probation. And then in that case, the appeal is limited to trial error. But the basic rule is that this order of deferred sentence is not appealable. This I'll get to you later in my argument. The first time the man has a right of appeal is later when probations revoked and sentences entered. That is the final judgment in the criminal case in the first time he --
Byron R. White: It is appealable then.
Evan L. Schwab: Then it is, and it brings in to play all original trial errors.
Byron R. White: You say as an independent ground in both of these cases that even if you don't apply down any rule of requiring counsel in probation revocation hearing as such, that that in effect as a sentencing as a completion of the sentencing process that you must have counsel at least for that purpose.
Evan L. Schwab: That's right, Your Honor at least for that. I think that's an easier question in probation revocation but it would create a weird situation in which the right to counsel would cease when the order of probation was entered, there would be no right to counsel until probation was revoked and then the man would be given a lawyer for sentencing. But I think sentencing is easier. I think that more squarely fits within the language of the Sixth Amendment. That's quite obviously part of the criminal prosecution. I maintain that this whole thing is -- this all takes place prior to sentencing. I don't think the language used by the Court is very significant.
Byron R. White: And also in your case I suppose, this took the equal protection route and then what the Court does is to permit people with the means to have a lawyer, let's say people without means must have a lawyer.
Evan L. Schwab: That's right, Your Honor.
Byron R. White: But if they don't permit people with the means to confront witnesses, there's no denial of equal protection.
Evan L. Schwab: That's right. I would prefer to see this case decided in due process, Sixth Amendment and Fourteenth Amendment grounds because I think the equal protection argument, by analogy the Douglas versus California would mean that if the state legislature decided to deprive the affluent of retained counsel, the equal protection I know wouldn't help us if they didn't provide the hearing at all in this case.
William J. Brennan, Jr.: May I -- I think you said that you not -- it depends on the judge whether one is allowed with the help of retaining the counsel on a revocation hearing?
Evan L. Schwab: Well Your Honor, I have never heard of a situation in the state in which retain counsel was not allowed. We do not have a rule of court or a statute which clearly says there's a right to retain counsel in one of these hearings. But as the dissent pointed out below, as I think my opponent would even admit, the general practices to allow retained counsel. I've never heard of one being ordered out of the room.
Abe Fortas: Was Walkling subsequently tried for forgery or whatever it was?
Evan L. Schwab: No Your Honor. No, that rarely happens in one of these setups. It's much easier to revoke his original probation and then sentence him on that original charge and that's what happened here. He was sentenced to the penitentiary and that's where he was until he also filed the petition for habeas corpus.
Abe Fortas: Well that leads to a certain officials in the administration of the courts, I gather.
Evan L. Schwab: It's much faster, Your Honor. Yes, it is.
Potter Stewart: And by the same token, I think you told Justice Harlan that Mempa was never trialed on a charge of burglary.
Evan L. Schwab: That's right Your Honor, never trialed on that.
Potter Stewart: And this -- well.
Evan L. Schwab: Now, when petitioner Walkling filed his habeas corpus petition, it also came on for argument below. There, the argument was directed at the continued validity of the Mempa decision which we've been discussing. No opinion was rendered by our State Supreme Court in Walkling merely cited Mempa and denied habeas corpus. These cases then were brought to this Court. Monday of this week, this Court granted a motion substituting the parole board as the respondent in the Walkling case because he has since then parole, he was paroled by the Supreme.
William J. Brennan, Jr.: Tell me Mr. Schwabb. You must prevail on both or neither of these cases?
Evan L. Schwab: Oh yes Your Honor. I can't distinguish them at all.
William J. Brennan, Jr.: You can't distinguish it too?
Evan L. Schwab: No, I can't. I'd like to draw the Court's attention at this point to what is involved at a probation revocation here in the states. To summarize them quickly, the man's liberty is obviously at stake. This proceeding is convened to pass upon whether or not he should go to jail or not. His reputation is at stake. Is he going to now lose his chance to clear his record someday? As I pointed out earlier, a man who lives up to the terms of his probation can move to have his record cleared. This is a very significant right. So his future record is involved in this hearing. His appellant remedies are involved and most significantly, this is going to be the hearing at which for the first time, he is sentenced on a criminal charge. Now, in recent decisions of this Court, you carved out right to counsel in many stages with the proceeding against an accused. The names of some of the cases of course would be Gideon, Douglas, Escobedo, Miranda, Kent and Gault. But a small area still remains in which there is no right to counsel rules. Professor Catey (ph) has called this the penal correctional gap that includes such things as probation, suspended sentences and parole. This case, we think clearly presents an issue in one small phase of this gap.
Abe Fortas: I -- perhaps I misunderstood you but could Walkling and Mempa have appeal when they were first put on probation because they were given minimum sentences?
Evan L. Schwab: No, Your Honor. They could not have appealed at that point.
Abe Fortas: Despite the fact that they were given minimum sentences of that --
Evan L. Schwab: Back at the time, because there have been no contested trial--
Abe Fortas: You have to have both, is that it?
Evan L. Schwab: You have to have a trial on the merits, a conviction and time in jail and then you can appeal.
Abe Fortas: And a time in jail but if you just -- if they just say, you have to spend 30 days in jail then it says, the written word anyway is that there is no appeal.
Evan L. Schwab: That's right, Your Honor. That's -- and our Court has been very consistent in that out there. They will not entertain those appeals. Now, the interesting thing in the Mempa case is this. He'd pleaded guilty to the crime of joyriding and of course there would not be much that he could appeal but he did have an appealable ground as subsequently appeared. Of course, I don't think many lawyers would have been smart enough to think of it at the time but since he was a juvenile and his exclusive -- and since the juvenile court had waived the exclusive jurisdiction over him without a hearing, he had a constitutional argument which could have been raised by appeal. Now, a smart lawyer might have thought of that. This might have come up years before this Court's decision in Kent and Gault.
Thurgood Marshall: Well, he had a lawyer.
Evan L. Schwab: I beg your pardon.
Thurgood Marshall: He had a lawyer there, hadn't he?
Evan L. Schwab: Yes he did and the lawyer wasn't smart to think but I'm just pointing this out to say that there was an appealable ground but of course it wasn't appealable. He got probation. He could not have appealed and raised that point. He even had a -- the only -- even if he'd wanted. His lawyer would have had to say, We turn down probation, we don't want it. We want you to enter judgment and sentence and then we can appeal on this point. That's the only way he could have taken the question up.
Abe Fortas: Well, what's your purpose of this minimum -- of this 30 days or whatever it was in Walkling's case. They put him on probation but you said you've got to spend 30 days in jail. Is that for processing?
Evan L. Schwab: No. No, that's very common, Your Honor. The courts usually reserved probation for people who have no record, first offenders. But it's common to give them some small period of time in jail to give them some punishment on this because typically, the man may have been bailed right after he was originally arrested. He's only spent one or two days in jail and the court thinks, Well, I want to give this man a chance to see if we can rehabilitate him but I'll give him some short period in the county jail to let him see how serious this is. Some criminologists argue that the first 30 days a man ever served are the toughest. Those are the 30 that he really feels. Now, I'm sure it's true.
Abe Fortas: He can get some training in the profession.
Evan L. Schwab: I beg your pardon.
Abe Fortas: He can get some training in the profession.
Evan L. Schwab: That's right Your Honor. Now, the Washington Court has said that this hearing is quasi administrative, that it's analogous to penal administration. The Court seems to be saying that this is not a criminal hearing and therefore these constitutional rights don't come into play. This is an essence on what my opponent argues. We submit that the labels applied to this hearing by the lower court are not sufficient to avoid the thrust of the Fourteenth Amendment and the concepts and protections that which should give. I think this was decided by this Court in Kent and Gault with labels and characterizations are not enough to get around the due process considerations of the Fourteenth Amendment.
Byron R. White: What happens in Washington -- I'll just go back for a minute. What happens in Washington when as in the case like this, there's no right to appeal at the time the probation order is entered but the defendant may appeal when his probation is revoked, is that what you said?
Evan L. Schwab: That's right Your Honor.
Byron R. White: And then he has a right to counsel on appeal --
Evan L. Schwab: That's right.
Byron R. White: -- and the counsel is appointed.
Evan L. Schwab: He would have to be under this Court's decisions. I do not as a practical matter whether or not this has come up because I think it's fairly unusual for a man to appeal after probation is revoked.
Byron R. White: But he generally have the right to appeal on your stage --
Evan L. Schwab: He has the right to appeal.
Byron R. White: -- and the right to counsel.
Evan L. Schwab: I doubt if our courts go through the motions of advising him of his right. I don't really know. I'm not that familiar so I can't tell you what the practice is. Now, our court has also laid great emphasis upon the fact that the original granting of probation as an exercise of the chance is grace. The Court has said there are no constitutional rights to the acquisition of probationary status, there are likewise, no rights surrounding its revocation. They rely on this old concept of the chancellors' grace, right of privilege concept. This is based on I think the old the case of ESCO versus (Inaudible) it's indicted by Mr. Justice Cardozo.
William J. Brennan, Jr.: I wonder Mr. Schwab. Can you help us whether this procedure in your state has counterpart tells where particularly in the features that there's no final sentence until after revocation of parole and no appeal until judgment has been entered after revocation of parole.
Evan L. Schwab: I really cannot help you on that precise point. My understanding of the practice in other states is that virtually all the states have a probation system. Many do not make the split we do between deferred sentences and suspended sentences and many of them, and I think in the federal system, judgment has entered, the sentence is entered but it's suspended. This is called probation in that system. Probation can apply to both of these situations. The accurate terminology would be one is a deferred sentence and one is a suspended sentence. I do not know what the appeal situation is.
William J. Brennan, Jr.: But if the person if -- if you're right that -- really, this is a sentencing procedure part of the main criminal prosecutions.
Evan L. Schwab: That's right, Your Honor.
William J. Brennan, Jr.: And the Gideon applies at that stage as it does another stages.
Evan L. Schwab: Our basic position in this case is that Gideon applies equally to this procedure.
William J. Brennan, Jr.: Well, I'm just suggesting. If you prevail on that analysis, that probably won't help us very much and the state procedures maybe different.
Evan L. Schwab: I think it would, Your Honor regardless of the appeal point. I think the fundamental thing here is the fact that a man's liberty is at stake. He is brought into a court and there's a judge on the bench, there's a prosecutor at the other table, the testimony is taken and his liberty is at stake. His right to a clear record is at stake. These are fundamental rights. This is obviously a very critical stage. Now regardless of appeal questions whether it could have appealed last year or now, regardless of what the Court calls it, I think quite clearly, he's entitled to do process applied in this hearing.
William J. Brennan, Jr.: Well this is the terminal pledge of the criminal prosecution under your --
Evan L. Schwab: I beg your pardon.
William J. Brennan, Jr.: This is the terminal stage of the criminal prosecution under your system assignment.
Evan L. Schwab: In the State of Washington. That's right, which makes it, I think easier to argue that this is part of the Sixth Amendment protection but if in states where this is not the terminal stage, if this is a state where the writer -- where the sentence had already been entered then I think we can rely on the Due Process Clause of the Fourteenth. Regardless of whether we call this criminal, civil or what have you if liberty is at stake, and I think he is entitled to due process.
Byron R. White: But if you take the course that this is a sentencing, therefore the counsel then you approach it as a sentencing procedure. This is where the judge had a probation report on -- you don't have the question of confrontation and things like that, do you?
Evan L. Schwab: This case doesn't present that. Now our -- we only present counsel issues here.
Byron R. White: If you look at it as a sentencing procedure, you have the right to counsel but you normally don't have another trial.
Evan L. Schwab: I don't think -- I see where you're leading but I -- in the normal sentencing procedure from divorce probation concepts, testimony is not taken in an open court.
Byron R. White: That's right.
Evan L. Schwab: The judge looks elsewhere. I realize that the case law is that there's no right of confrontation of those sources of information which the judge relies on. I think that when a person is brought in a court and placed on the stand when testimony is taken, when there are issues of fact and a new fact finding process is taking place then I think there's a right of confrontation. I'm going beyond my case.
Byron R. White: And trial by jury?
Evan L. Schwab: I can't -- I think there should be but I'm not prepared today to argue what the Constitution requires but I prefer to stay within the confines of right to counsel issue because I think that's much easier. I think that's --
William J. Brennan, Jr.: Well, would you argue for right to counsel independently of the Washington practice of this being the terminal stage --
Evan L. Schwab: Absolutely, Your Honor. This is a hearing in the court with witnesses.
William J. Brennan, Jr.: That's what I'd like to hear you on.
Evan L. Schwab: A prosecutor. This is a very vital and critical proceeding against this man regardless of what we got. Now, this Court is held in the area of economic privileges if they cannot arbitrarily be withdrawn even though the granting of a certain federal benefits maybe a privilege but that does not necessarily follow that you can just arbitrarily pull them back. I think the dicta in ESCO versus (Inaudible) is kind of been eroded for the passage of time in subsequent cases in this Court. In Gault --
Abe Fortas: Does your argument apply equally to the sentencing trace of a hearing and ordinary procedure? Let's take a hypothetical case. The man is represented by a counsel during a trial and the judge is -- and the jury comes in with the verdict of guilty and the judge says -- sets down the proceeding for sentencing three days later. And the man comes in and says, I don't have counsel. My counsel disappeared or resigned or something and I want a counsel at this time. Does your argument equally lead you to the conclusion that he's entitled to counsel under the principles of Gideon and so on?
Evan L. Schwab: Oh yes Your Honor, very definitely.
Abe Fortas: At the sentencing phase.
Evan L. Schwab: That's right. There are two other cases that bear on this. One is Townsend versus Burke in which this Court had before it the issue of the right to counsel at sentencing. In that case --
William J. Brennan, Jr.: What was that --
Evan L. Schwab: I beg your pardon.
William J. Brennan, Jr.: Townsend and Burke.
Evan L. Schwab: Townsend versus Burke.
William J. Brennan, Jr.: Yes.
Evan L. Schwab: Would you like to --
William J. Brennan, Jr.: No, I know what it is.
Evan L. Schwab: The issue there was right to counsel at sentencing. This is a pre-Gideon case.
Abe Fortas: Now do you -- my question to you really is, do you use that line of thinking, that line of analysis, Townsend against Burke to support your position in this proceeding or they arrest it solely on the fact that a testimony is taken at this so called deferred probation or probation revocation proceedings.
Evan L. Schwab: Well, I regard them as in way separable issues as far as the probation revocation hearing is concerned and testimony is taken and this is very much like a trial, issues of facts they've presented. I think there's a need for counsel there under Gideon, under basic due process concepts that --
Byron R. White: You make both arguments.
Evan L. Schwab: That's right. I'm presenting both. Under sentencing, I rely, I can first use the other arguments but I think there are separate arguments available on sentencing, namely the Townsend versus Burke, the Moore case and Gideon.
Speaker: But if you prevail on that ground why another state chose to change the sentencing procedures when the sentencing is not deferred --
Evan L. Schwab: That's right Your Honor. If sentencing presents a narrower way to decide this case without dealing with the probation hearing, this wouldn't answer very many questions because it would be easy to restructure the system. If this Court dealt only with the sentencing issue citing say Townsend and Gideon, I don't think that the case would have much of an impact upon the federal practice where sentences entered and then suspended.
Thurgood Marshall: Mr. Schwab, is it true that Washington on revocation parole, you have a lawyer?
Evan L. Schwab: On parole hearings, we have a statute which provides that you have a right to counsel at parole hearings. This is construed I believe to mean only retain counsel. So we have the anomaly situation in Washington where we know there's a right to retain counsel at a parole hearing but we have nothing expressly giving us the right to retain counsel at probation hearings.
Byron R. White: Well, yeah but they don't appoint counsel.
Evan L. Schwab: They don't appoint counsel, that's quite right in parole hearings. I don't know of any jurisdiction that does that. I remember that several years ago, there were some cases in the DC Circuit.
Byron R. White: That's your contention that all jurisdiction should --
Evan L. Schwab: I'm not -- that's on parole or probation.
Byron R. White: Both.
Evan L. Schwab: Well, my contention today is limited to probation, Your Honor.
Byron R. White: But you would say that all jurisdictions must do it on probation revocation.
Evan L. Schwab: That's right, Your Honor. That would be my contention. Now people -- I like to deal with the Gault case for a minute and I think the Gault case comes very close to what we're dealing with here today. In that case, this Court held that there's a right to counsel in a proceeding. It is determined that the child is delinquent and is to be subjected to the lost of his liberty. This is very similar to what we have here. Characterization questions were branched aside and called as to whether it's criminal or civil, what have you. I think the same reasoning applies to this fact pattern. Now, the argument has been advanced by commentators and that an attorney is not necessary in one of these hearings, that the man has had plenty of breaks already. The probation officers lean over backwards to be fair as the State of Florida has said in the amicus brief filed against me, everybody knows that probation officers are fair and not arbitrary. I think there's quite a deal that attorneys can do. I'd like to point out some of the things. If there are issues of fact and there are frequently are, only an attorney can effectively marshal the evidence, bring it together and put on a case, put on a defense. The probationer generally is in jail being held, awaiting his hearing. The attorney can build his defense. He can cross-examine the probation officer or the other witnesses who are called against him. He can object to improper procedure. He can raise a hearsay objection although he may not get ready for it. Questions of law can be involved. First of all, are there sufficient grounds to revoke probation? In the State of Washington, probation can only be revoked for cause. Our statute says that if the man violates the terms of his probation, that means the rules lay down by the probation board having to do with hours he keeps, type of life he lives; Or secondly, if he is abandoned to improper associates, he can have his probation revoked, or if he is engaging in criminal practices, he can end up revoked; Lastly, if he is living a vicious life. Now I'm not raising any vaugeness problems today but I don't know what that one means. I think this raises a need for lawyer though. I think a lawyer would want to raise at the hearing what if --
William J. Brennan, Jr.: Excuse me, Mr. Schwab of course as to all of these reasons, there must be a judicial proceeding or a proceeding before a judge.
Evan L. Schwab: Our statute directs that on the revocation, he is to brought back before the judge.
William J. Brennan, Jr.: Again, perhaps it's not fair to ask you about other practices in other states. Have you have heard of an administrative revocation of probation as distinguished from administrative revocation of parole?
Evan L. Schwab: No, I've not Your Honor. I never have.
Speaker: Suppose you -- and I want to make sure I understand your probation procedure. As I understand you, man has a trial and he gets a view at the sentence, at the revocation stage, sentence is stayed but all --
Evan L. Schwab: There are two other conditions to have.
Speaker: -- all with respect to trial.
Evan L. Schwab: That's right Your Honor.
Speaker: Now, does that mean that under your probation procedure, the man has no lawyer under your view and he puts on pertinent evidence that the charge of the probation is untrue and then the judge makes an arbitrary proceeding and not withstanding all that whether to revoke this person on his probation. Would that be reviewable on your court?
Evan L. Schwab: Yes it would Your Honor. You see that the review on trial error is limited to the appeal which is taken when probation is originally granted and not wanting to revoke. Once probation is revoked and sentences entered then an appeal can be taken covering the original trial, the revocation and probation and the sentence. Everything then would go up. Now, our case law provides that it's almost impossible to over turn a trial court's decision revoking probation. This is committed to the discretion of the trial court. There are no burden approved rules in the State of Washington. The court simply says that if the courts convinced the man violate with the terms of probation. So I don't know of any cases in which our Court is overturned to trial court finding.
Speaker: --hypothetical but theoretically, they could be reviewing that.
Evan L. Schwab: Oh yes Your Honor, that's right. Now, going back to what the lawyer could do at this revocation hearing, ignoring for a moment issues of fact which I have discussed, he would want to determine and argued to the court first of all that cause have not been made out for revocation and probation. But assume the judge disagreed and felt that there is a requisite cause to revoke then the attorney can present mitigating circumstances in an attempt to persuade the court to leave the man on probation and notwithstanding the violation. This would be discretionary with the trial judge or if that's resolved against the attorney, he can then deal with the sentencing issue and try to have matters and mitigation of sentence considered which would go to a low recommendation from the judge.
William J. Brennan, Jr.: Well I take it Mr. Schwab. If we would agree with you, the revocation stage was a step also in the criminal procedure -- proceeding. You wouldn't have to make this argument which in effect is one that this is a critical stage proceeding, would you? Are you arguing alternatively that it's a step of the criminal proceeding in any event and therefore as -- at the trial itself, he is entitled to counsel or even if it's not a step, nevertheless take critical stage sufficiently that hasn't weighed in these other cases.
Evan L. Schwab: That's right, Your Honor.
William J. Brennan, Jr.: You have said that there's a right to counsel.
Evan L. Schwab: That's right. Because there are cases which say that the language of criminal prosecution under the Sixth Amendment is to be construed technically so I can conceive of the argument being made that if sentencing had already occurred and then the man was placed on probation. The criminal prosecution might have come to an end and therefore those concepts don't apply. So I think there are two grounds but I think under Gault and cases like that. This is a critical stage at which due process rights to counsel apply.
Byron R. White: Is there -- can you tell us anything under the law of your state which would make the holding in this case applicable to parole revocation? Is there any -- do you have an approach towards parole revocation in your state which would significantly distinguish them from probation revocation?
Evan L. Schwab: We depend on the way that this -- an opinion in this case was phrased if the court ruled in this case solely on the sentencing ground.
Byron R. White: Well, let's say we took the Sixth Amendment ground right across the board.
Evan L. Schwab: In re Gault sort of concepts.
Byron R. White: Well, you say that this is a -- that this is a situation which the counsel is required.
Evan L. Schwab: I think then it might apply to parole arguably because there too with the man's liberty is at stake. The one difference though is that parole doesn't occur in court. This does -- this is the court, there's a judge --
Byron R. White: That would mean -- is it parole revocations wouldn't be done administratively.
Evan L. Schwab: They are done administrative.
Byron R. White: I don't know but the holding would mean that they wouldn't be.
William J. Brennan, Jr.: If we said there had to be a right to counsel, wouldn't that automatically -- wouldn't it follow then that parole revocations too would have to be before judges or not?
Byron R. White: No, I don't think so. I think it depends on how you said there's a right to counsel. If you said that any hearing involving a man's liberty, there's a right to counsel. I think that would apply and they could continue to do this before a board but they would have to appoint counsel as well as permit retained counsel. But I don't think that you would be required to form an opinion which would move this procedure into the courtroom.
Byron R. White: And the argument would then apply also I suppose to granting parole liberty.
Evan L. Schwab: No, I don't think it would Your Honor. I think this is a matter which is vested in the discretion either of the judge or in the case of parole and the parole board. There are a lot of other factors that we consider. I accept the argument that there is no constitutional right to the acquisition of the status. I think the rights come into play once this conditional liberty is given to the man. Now, the Amicus brief filed in this case by the National Legal Aid and Defender Association, points out that 11 states already appoint counsel in these hearings. And these states make up roughly one-fourth of the population. They've taken a survey and they found that certain counties in roughly 24 other states also appoint counsel. Some counties do and don't. They have no rigid rule in their state. This raises it to roughly one-half of the population in this country. One-half of the courts already appoint counsel, the others don't. Only three states within this country say that there's no right to a hearing at all on probation revocation. Three states say that the probation officer can arrest the man and throw him in jail and that seem --
Earl Warren: What are those states?
Evan L. Schwab: I beg your pardon?
Earl Warren: What are those states?
Evan L. Schwab: They're in this brief. I'll be happy to read them for you.
Earl Warren: Well, if you don't remember it's alright.
Evan L. Schwab: I don't remember them. There are so many different statistics on states and they line up in different ways. The trend of expert opinion in writing in the field that supports the right to counsel just to point out three things, the president's commission on crime and administration of justice recommended the appointment of counsel in probation revocation hearings. American Bar Association committees which have studied this recommend the same thing in ALI Model Penal Code it's recommended to the appointment of counsel in probation revocation hearings. In so far as burdens on the system are concerned, I'd like to make -- to give the Court the benefit of some of the information in this brief. In 1965 in the state system, 144,000 people were placed on probation. The average probation case load on 1965, in other words, the total average daily number of people on probation during the year was 230,000. The average number of revocations during that year totaled roughly one third of that. So we're talking similar between 30,000 to 40,000 probation revocations a year. I think this can be handled very easily within our existing system for appointing counsel as result of this Court's Gideon decision, every state now has either a defender system or a system for appointing local members of the Bar. If a man had been appointed to represent this fellow on his original charge, it makes sense to appoint that same lawyer on the probation revocation. He argued for probation and now if it's to be revoked, he should come back and represent this man. He has a file on the case, he knows him. I think these ideas of appointing lawyers for this were just working very easily within our existing system.
William J. Brennan, Jr.: I know Mr. Schwab. Your only problem here is to sway this -- at least constitutionally have a right to counsel.
Evan L. Schwab: That's right, Your Honor.
William J. Brennan, Jr.: Can we -- can we consider this without thinking of some of the other things, jury trial for example?
Evan L. Schwab: Well, this case doesn't present those.
William J. Brennan, Jr.: I know it doesn't. But where do you stop if we say --
Evan L. Schwab: I think that the Court can treat probation revocation hearings and parole revocation hearings as a special sort of hearing. We have to look at the fact that this man has been convicted of a crime.
William J. Brennan, Jr.: Well, you mean involving jury trial? No.
Evan L. Schwab: No, involving less technical concepts in the trial. The man had his trial or at least he has a right to it. He either pleaded guilty or he was convicted. He has been given a certain conditional liberty by the state. I don't think he needs a brand new trial with all of the technical and full blown rights when they want to revoke this.
William J. Brennan, Jr.: How about confrontation. I guess you will have --
Evan L. Schwab: I think -- well, as I rank them, I think the right of counsel is number one, the most important. I think if there is an issue of fact, he should have confrontation. I think I would tend to treat it more like a civil case perhaps with no right to a jury with the burden of proof rule being generally the preponderance of the evidence if the judge believes if there has been a violation, he can send the man back to jail. But I think confrontation is essential. It might be a malicious neighbor who claims this man as keeping bad hours or associating with criminals and if the probation officer is the only one to testify the hearings of course and nothing can be accomplished.
Potter Stewart: (Inaudible)
Evan L. Schwab: That's right, Your Honor.
Potter Stewart: And I think in addition can trial consent him that and the trial judge at different or other or additional --?
Evan L. Schwab: Yes he can, Your Honor and it's commonly done.
Potter Stewart: (Inaudible)
Evan L. Schwab: That's right.
Potter Stewart: (Inaudible)
Evan L. Schwab: I was involved in a case in Reno in which the judge conditioned probation on not seeing a particular woman for a year or over a period, I think it was. He also required the defendant to leave the state. Commonly, they require the defendant to make restitution to the victim.
Potter Stewart: And on the -- and I believe the culmination was to experiment on probation (Inaudible).
Evan L. Schwab: That's right Your Honor, they do.
Potter Stewart: (Inaudible)
Evan L. Schwab: That's right. I would like to deal for a moment with equal protection. Also I pointed out we have no statutory judicial requirement of appointed counsel in the state with the factor -- but the practice is, that these men are given hearings to the court retained counsel are permitted to appear. The affluent probationer is allowed counsel indigent was found for himself. I think that this is an unconstitutional discrimination under the cases such as Douglas and Griffin. Thank you.
Earl Warren: Very well. Mr. Way.
Stephen C. Way: Mr. Chief Justice, may it please the Court. As my opposing counsel has stated to you, the issue in these cases concerns the problem of the right to counsel under the Fourteenth Amendment of the Constitution of the United States in the probation revocation hearings in the State of Washington followed by the imposition of sentence. Now, I think perhaps for a moment, I like to dwell on how these issues arose and were disposed of in the Supreme Court of the State of Washington. Mr. Mempa in a pro se petition, contended that in as much as he was not accompanied or did not have counsel at the time of the hearing in the revocation of his probation and the imposition of sentence that his Sixth Amendment rights were violated under the Constitution of United States and under Article 1, Section 10 of our State Constitution. The Supreme Court, as Mr. Schwab has stated, the Supreme Court of Washington held an en banc hearing in the case having first heard the matter by a department of the Court, and then it was ordered, heard en banc. The majority opinion decided on the question on due process grounds alone, the dissent touches upon due process, equal protection and the Sixth Amendment considerations. In Walkling, Mr. Walkling's attorney contended wholly that his due process rights had been violated. The counsel in their brief brought up in a five sentence suggestion in the end of their brief that equal protection was violated. The matter was decided by order of the Supreme Court finding that the opinions of the Court in Mempa control. Now, I think it's clear from the historical development of the Due Process Clause in this Court that a number of protections have been accorded to defendants when a question is one of guilt or innocence but the significant difference between these case and the cases that have gone before Gideon, Griffin versus Illinois, Gault. The issue that was there was one of whether or not the person was guilty of the crime which he's been charged or as in Gault whether or not the person had committed the act of delinquency. The case here is one in which the defendant has been convicted. His conviction is having committed the crime, has been constitutionally established. He had his counsel and presumably upon the advice of counsel, he entered a plea of guilty or he was convicted upon the finding of guilty by a jury. Now, this is somewhat different from the cases where a defendant must come before a court without a counsel. Here as Mr. Schwab has indicated, the hearings are relatively informal. There are no pleading problems. There is no complaint information or indictment or the intricacies of those things. There, the evidence is sometimes of a hearsay nature. There are affidavits.
Thurgood Marshall: What evidence was there in either one of this evidence underscore the word evidence? What?
Stephen C. Way: In --
Thurgood Marshall: Either one of them.
Stephen C. Way: In the Mempa case Mr. Justice Marshall. There was attached to the prosecutor's motion an affidavit concerning the facts of the burglary of the used car lot by Mr. Mempa. The theft to the television sets, some radios and three rifles. And Mr. Mempa was asked whether the affidavit was read off the court. Mr. Mempa was asked whether or not this -- there are allegations of what he'd been accused were true. The answer in the affirmative, yes they were. That was the nature of the evidence there. Now Walkling, there is no record. We know not what transpired there but we do know that there were I believe 14 charges of forgery and 14 charges of grand larceny. He absconded his parole by going to another jurisdiction. He was wanted for a period of almost a year. A bench warrant was outstanding for his production. And these were the things I'm satisfied, came before the court in his area but as Mr. Schwab have said that there was no record.
Earl Warren: We'll recess now.