Warren E. Burger: We'll hear arguments next in number 26, Groppi against Wisconsin. Mrs. Dubois you may proceed whenever you're ready.
Elizabeth B. Dubois: Mr. Chief Justice and may it please the Court. This case is here on appeal from the Supreme Court of Wisconsin. It involves the criminal conviction of Father James E. Groppi from resisting arrest during a civil rights demonstration that took place in August of 1967. At issue is the constitutionality of the Wisconsin statute which prohibited the change of venue in Father Groppi's case because he was charged with a misdemeanor rather than a felony. The facts of the case briefly state are as follows: Father Groppi, a Roman Catholic priest, advisor to the NAACP Youth Council and an active civil rights leader for number of years in Milwaukee was arrested on August 31, 1967. He was charged with resisting arrest, a misdemeanor punishable under Wisconsin law by a maximum of one year and a $500.00 fine. He was convicted after a jury trial on February 9, 1968. The testimony at trial just laid out in some detail in our brief, is significant in two respects. First, it is clear that the activities out of which his criminal charge arose were considered crimes of major precautions by the people of Milwaukee, whatever the technical classification of the crime with which he was charged. Thus, the defendant's arrest occurred in the course of a civil rights march, protesting a proclamation issued by the Mayor of Milwaukee, banning all marches and demonstrations from 4 p.m. to 9 a.m. for a 30-day period. That proclamation had itself been issued in response to a series of civil rights demonstrations, marches and activities participated in by Father Groppi and the Youth Council. The testimony is also significant in that the States and the defenses' versions of the facts essential to his guilt or innocence on the resisting arrest charge were in basic conflict. The state witnesses testified that while Father Groppi was being carried in a limp position to the police wagon. He kicked the policeman who was carrying him by the left leg, meanwhile shouting a profanity. Defense witnesses testified that that same officer had gouged Father Groppi's leg and then it was in response to that that Father Groppi demanded his name and badge number. The defense denied that there've been any kicking or any profanity. The defendant moved prior to trial for change of venue on the grounds that massive and prejudicial news coverage that he had received as a civil rights leader and in connection with this case in Milwaukee County had created community prejudice preventing an impartial jury trial in that county. He asked for an opportunity to prove the nature in extent of that news coverage and its effect on the community and then the likelihood of an impartial trial in that county. This motion was denied for that in evidentiary hearing on the sole ground that the Wisconsin statute at issue prohibited a change of venue in misdemeanor cases. The defendant challenged the validity and constitutionality of --
Speaker: Counsel, at this point, does the statute in so many terms prohibit the change of venue in misdemeanor cases?
Elizabeth B. Dubois: Today Your Honor or at the time --
Speaker: At that time.
Elizabeth B. Dubois: At that time, the statute as interpreted by the Trial Court in its terms prohibited. The Trial Court interpreted that very specifically to prohibit change of venue. It was on that ground such denied the motion. The Supreme Court of Wisconsin in its opinion again interprets that statute to absolutely prohibit change of venue in a misdemeanor case.
Potter Stewart: The statute certainly does not mention misdemeanors, does it?
Elizabeth B. Dubois: It does not mention it. It says only that in a felony case of change of venue may be allowed but the Wisconsin Supreme Court opinion specifically says both that the motion was denied on the ground that the statute provided for change of venue only in felony matters, that's 208 of the record. And then if the Supreme Court itself said, the applicable statute specifies that a change of venue based on community prejudice shall only be permitted in felony cases.
Potter Stewart: Is there a constitutional right to a change of venue in any kind of a case, wholly apart from statute?
Elizabeth B. Dubois: Your Honor, it's our contention that --
Potter Stewart: On a sufficient showing it was community prejudice of course.
Elizabeth B. Dubois: That on a sufficient showing of community prejudice, a change venue may be constitutionally required and that these such statute is subject to due process challenge because it absolutely prohibits change of venue without even according a right to a hearing in which one can show the kind of community prejudice that would justify change of venue.
Potter Stewart: Of course, you can sense mind struggling with the question why the Wisconsin Court interpreted its statute in the way it did when it didn't refer, make any mention to misdemeanor cases whatsoever.
Elizabeth B. Dubois: Well, I think it's because the statute -- the language of the statue seems to assume that no change of venue exists except before the statute and that it's because of the statute that a change of venue is allowed in a felony case. If the Wisconsin itself recognized a federal due process right to change a venue only after the statute had been enacted.
Warren E. Burger: Is it possible, Mrs. Dubois, that you might have a situation that the jurisdiction, the original jurisdiction having special misdemeanor court conceivably there might be no other place where they have a comparable court but what would that do for your argument? What would that do with respect to this problem?
Elizabeth B. Dubois: I mean that in a particular county for example in Wisconsin, it might be a special misdemeanor court but it --
Warren E. Burger: It might be not.
Elizabeth B. Dubois: -- but in other counties there would --
Warren E. Burger: There might be no misdemeanor court anywhere else in the State and some states.
Elizabeth B. Dubois: Well, it seems to me Your Honor that if there was a showing in such a case that community prejudice was such that it was impossible to try that misdemeanor fairly in that county that the state would simply have to provide some means of trying them in other county. In fact that a specific misdemeanor court did not exist, it seems to me wouldn't be at bar to that. Certainly, another court would be able to try the case. So the State would simply be inadvertent of providing some means of trying it somewhere else, if it was going to try the case at all.
Warren E. Burger: While I have you interrupted, what impact if any is there from the fact that Wisconsin legislature has now extended the change of venue provisions to cover misdemeanor cases as I understand it?
Elizabeth B. Dubois: Well, I don't believe there's any impact at all in this case Your Honor because the Wisconsin statute that extended that change the law if we refer to in the reply brief page 2, footnote 1, specifically makes that change in the law perspective only. The entire -- the section we quote there applies to the entire new revised criminal procedure code and it says that the code shall given -- govern prosecutions commenced on or after July 1, 1970. It says the prosecutions commenced prior to July 1, 1970 shall be governed by the law existing prior thereto. This prosecution was commenced before that day. The trial itself took place in 1968.
Potter Stewart: Mrs. Dubois, does the record show, I wish to be sure as to this whether there was any offer or proof of community prejudice?
Elizabeth B. Dubois: Yes, Your Honor. The -- on the original motion for change of venue which appears in the appendix at pages 23 to 25, the defendant offered -- he offered -- he asked the court to take judicial notice of the massive news coverage of this defendant and of this particular case. In addition he proffered proof as to the nature in extent of the coverage and as to the effect on the community. The motion was denied without hearing in the specific grounds the judge gave were not that inadequate evidence had been produced but that the Wisconsin statute prohibited a change of venue. We --
Speaker: Does the facts that the jury was expeditiously selected way against that, any suggestion of community prejudice?
Elizabeth B. Dubois: Your Honor, I don't believe that it does because it's our contention that change of venue may in some cases depending on the circumstances be constitutionally require because voir dire and continuance in other available methods. It may simply not be adequate to protect the defendant's right to an impartial jury trial. Therefore the fact that in a particular case, voir dire may be in expeditiously dispatched doesn't affect the constitutional claim. The periphery challenges were all exercised in this case and there's simply no way of telling what else went on at the voir dire.
Byron R. White: Do you know whether under Wisconsin procedure, the appointed counsel has the right to question perspective jurors?
Elizabeth B. Dubois: Your Honor, counsel has a right to question perspective jurors. The reason that voir dire, when the State makes the argument that the defendant had an opportunity to show community prejudice in this case either on voir dire or on a motion for continuance or in a motion for a new trial. And it's the failure to do this that deprives them of standing. Our answer to that is that whereas claim constitutional is claim, is that the circumstances are such that only a change of venue can protect his right to an impartial trial. There is no reason that he should be required to pursue remedies which he considers inadequate in order to get a record of community prejudice into the case. And we contend this is so particularly because pursuit of those remedies might involve waiver of vital constitutional rights and might be fruitless. In particular, both continuance and voir dire, continuance under Wisconsin law had the defendant move for a continuance. He would have waived his right to a speedy trial. Secondly, the kind of proof he might have been able to get in a motion for a continuance, would have been that he would indeed have been able to get a fair trial in Wisconsin eventually and it's not a very thing that he is claiming he could not get. As far as voir dire is concerned, he is allowed under Wisconsin law to ask questions of particular jurors or presumably is with respect to whether or not they heard particular information of same things but he would not be allowed to bring in outside witnesses to show that the community as a whole was exposed to prejudice which is the kind of evidence to this Court found in Rideau was relevant. In Rideau, this Court found that it was not the exposure of the three jurors that was showing on voir dire that was relevant. It found, it was the exposure of the community as a whole. And on voir dire, there would be no way in Wisconsin or in any jurisdiction that I know of, that the defendant could show that kind of exposure with the community as a whole. He would be limited to showing simply exposure of particular jurors.
Thurgood Marshall: Mrs. Dubois, what do you say about the State's point that it wasn't a prima facie showing in the motion, it was just general conclusions?
Elizabeth B. Dubois: Your Honor, the defendant was faced with a statute which prohibited as Wisconsin Courts had interpreted, prohibited a change of venue. He did make on -- he made conclusory allegations. He asked the Court --
Thurgood Marshall: Does any rule of court or law in Wisconsin that says you can't file exhibits to a motion?
Elizabeth B. Dubois: No Your Honor, he could have been, he did in fact file an affidavit which is in the record and he did also ask the Court to take judicial notice of the news coverage which courts -- many courts have in this kind of case, considered news coverage out of the things being attached but the most important thing is --
Thurgood Marshall: Couldn't he have put into the record why he wanted the court to take judicial notice namely the clippings that he said was so declamatory?
Elizabeth B. Dubois: Your Honor, he could have put some of the clippings into the record but he was denied any opportunity to bring in witnesses which is another important way of showing the community prejudice. It was denied in the opportunity for a hearing.
Thurgood Marshall: Was he denied the opportunity to put in a thousand affidavits and 4500 clippings, was he?
Elizabeth B. Dubois: No, he wasn't Your Honor but that may be an inadequate way --
Thurgood Marshall: But he didn't.
Elizabeth B. Dubois: -- of showing community prejudice.
Thurgood Marshall: Well I mean, doesn't the Court get some control over the fact that he wants a prima facie showing?
Elizabeth B. Dubois: I would agree. If either the trial court or the Supreme Court of Wisconsin had ruled that his failure to get community prejudice into the record had anything to do with his failure to produce proof on the change of venue motion but neither of them win on those grounds. The only contention -- the trial judge on that motion --
Thurgood Marshall: Do you say that we are prohibited from affirming on that ground?
Elizabeth B. Dubois: I would say not to that reason Your Honor but I would say that where he proffered proof that -- and where the trial court --
Thurgood Marshall: Where is his proffer of proof? All I say was a general statement which asks the court for your reason to infer.
Potter Stewart: With an affidavit? It's on page 23-A of the record.
Elizabeth B. Dubois: It's on page 23-A of the record. And the defendant request that this Court take judicial notice of the massive coverage by all news media in this community of the activities of this defendant and such activities has have been related to him or in the alternative that the defendant be permitted to offer proof of the nature in extent thereof, its effect upon this community and on the right of defendant to an impartial jury trial.
Thurgood Marshall: But which in those paper articles are you asking that court in third judicial notice of?
Elizabeth B. Dubois: Neither masses of news paper articles --
Thurgood Marshall: But what article?
Elizabeth B. Dubois: And none of them were attached. That is true. The courts --
Thurgood Marshall: You mean you want the court to go back and research from the newspapers and find the clippings?
Elizabeth B. Dubois: Your Honor, where not --- no.
Thurgood Marshall: Are you sure if you did that, it would have been much simpler to have presented what you wanted the court to take judicial notice?
Elizabeth B. Dubois: Your Honor, the defendant was faced with a statute prohibiting change of venue. He came in and proffered proof and asked the court to take judicial notice. He also attached an affidavit by Father Groppi. If the court did not go on the ground that these things were inadequate, if the court at that point had said these are inadequate, the defendant could have produced more proofs. But what the court rule was, that he had no right whatsoever to produce any proof and that it did not even rule that that proof was inadequate.
Thurgood Marshall: So you want to send the case back so that evidence can be put in?
Elizabeth B. Dubois: No, Your Honor. At this point, and if the only appropriate remedy could be to be reversed the conviction because at this point to put in proof that's three years old as to the kind of community prejudice that existed in what --
Thurgood Marshall: You just want us to release him?
Elizabeth B. Dubois: I want the Court to reverse the conviction.
Thurgood Marshall: You don't want [Voice Overlap]. You want just to out -- an out reversal.
Elizabeth B. Dubois: A reversal so that the defendant could have a new trial at which it would have an opportunity to show the kind of community prejudice which would justify a change of venue of indeed under circumstances that would justify.
Thurgood Marshall: [Voice Overlap] you didn't say you wanted complete reversal, did you?
Potter Stewart: I'd understood you say that it wasn't clear until this case that a change of venue on a misdemeanor case in the State was absolutely impermissible. That was only in this case in the decision of the trial court and then the subsequent affirmance in the Supreme Court of the State that it became clear that the language of the rather ambiguous language of the state statute meant that only felony and only felony cases could you get that change of venue and that they were absolutely forbidden in misdemeanor cases.
Elizabeth B. Dubois: It had never been held by the Supreme Court of Wisconsin but I believe that it was commonly understood like counsel in Wisconsin that this was not allowed and the changes of venue were not allowed in misdemeanor cases and this is that the language of the statute, I do not believe, is that ambiguous because it's a -- it presumes that no change of venue was allowed. It permits change of venue in a felony case. It seems to me that --
Potter Stewart: Well, by -- it may have implication I suppose but I thought you agreed earlier with Justice Blackmun when he said the statutory language wasn't all that clear. And now in your responses to Mr. Justice Marshall, you say that the reason that our case, a better factual case wasn't put in for a change of venue was that counsel for the defendant merely at a hopeless case anyway because clearly they would -- couldn't be a change of venue. That's in -- for me a little inconsistent, I wondered, would you?
Elizabeth B. Dubois: I think that the statute and that the practice in Wisconsin was fairly clear that no change of venue would be allowed in this case. And I think the defendant produced. I do not think that -- and I think he produced adequate proof in any and even an adequate proffer for the said that the judge should have either said this is not enough evidence or allowed him to have an evidentiary hearing.
Warren E. Burger: Well if -- going back to the point raised before or question raised before. If there was that much community prejudice, wouldn't it normally be a matter that counsel would explore very extensively in examining the jurors to be sure that he had eliminated such those persons who had been tainted by that excessive coverage that you claim?
Elizabeth B. Dubois: Your Honor, there's no way of telling exactly what kind of examination was made in this case but under Wisconsin law as under the law in most jurisdictions. The juror who was been exposed to prejudicial news coverage, they stay on the jury so long as he can tell the judge that he has not formed an irrevocable opinion that the defendant is guilty.
Speaker: Did you make a motion for a new trial counsel?
Elizabeth B. Dubois: Your Honor, yes there was. After the motion for change of venue that was a motion again before trial to dismiss challenging the statute. There was also a motion for a new trial after its challenging the statute and in both cases the --
Speaker: But did you afterwards, your motion for new trial submit any evidence with respect to community prejudice?
Elizabeth B. Dubois: At that stage, there was no evidence submitted but again, our argument is that the reason that its -- are necessary to submit evidence or that it's unfair to require the defendant to get the evidence of community prejudice in at that stage is because it would be fruitless. In the first place, in a motion --
Speaker: Well if the Court, I take it the Wisconsin Court said that that they were certainly weren't holding that the -- you didn't have a right to a fair trial.
Elizabeth B. Dubois: They say that Your Honor.
Speaker: And a motion for a new trial as there had been community, this found evidence, community prejudice, you could have concluded that --
Elizabeth B. Dubois: They say that but this is the first case in which they have indicated it any way that the way to get community prejudice, justifying a change of venue at the record is on motion for a new trial. And there are several cases indicating that the standard for reversal on a fair -- unfair trial theory is entirely different from the standard on the change of venue. In the case of State versus Nutley which we cited in our brief, the Wisconsin Supreme Court case. They described the two different standards very specifically. They described then that the standard on a change of venue motion is whether there is community prejudice which might color the perceptions of the jurors. They described the standard on the reversal for an unfair trial standard as whether the publicity was such that the jurors could not help but predetermine the guilt of the defendant.
Speaker: What do you think the constitutional standard is?
Elizabeth B. Dubois: I assume we don't think it's the second and I think that this Court has made it quite clear in its cases that it would not be a standard that the guilt that the jurors clearly couldn't help but predetermine the guilt of the defendant. The other problem, with the introducing this evidence on a motion for a new trial and the other reason that it would be fruitless is that there is no indication, a change of venue would be possible in Wisconsin even such motion will want.
Warren E. Burger: But you can't really assume that, can you? Suppose a trial judge at the conclusion of the trial by which time he had seen the whole panorama, decided that this could have been a miscarriage of justice because of community feeling permeating the jury, he might then on some broad ground independent of the statute decide to grant a new trial, isn't that so?
Elizabeth B. Dubois: He might decide to grant a new trial but a new trial in the same community. I think the given of the Wisconsin statute denying change of venue and there would be no possibility of their granting a change of venue and it says Groppi's contention in this case that a simple -- I mean granting a new trial under those circumstances would really be the same as granting a continuance. That's his contention that that would be an inadequate remedy because of -- in the circumstances, particular case because of his continued civil rights activity because the prejudice really resulted from his notoriety as a person not from the facts of the particular crime. There is no reason to believe that the prejudice would disappear. In any event, our only real contention is that he was entirely at least to unhearing to show that a continuance would not have been inadequate remedy. I just like to point out that the one case which -- or the two cases which have really dealt with the statute like Wisconsin's both held that on the record where the defendant had no opportunity to get community prejudice in at the change of venue motion hearing. The fact that there was no community prejudice in the record was irrelevant. I'd like to just briefly discuss the arguments. Our basic argument is the statute is in violation of the defendant's right both under the Due Process and under the Equal Protection Clauses of the Constitution. We start with the fundamental proposition that a criminal defendant in our system has a right to have his innocence or guilt determined on the evidence by an impartial trier of fact whether the case is a felony or misdemeanor, a serious or petty offense. Since Wisconsin law provides that the trial of fact in all criminal cases be a jury, it's our contention that the defendant had a federal due process right to all procedures essential to ensure that that jury was impartial. The court below and the state contend the change of venue has only one or several methods to insure jury impartiality. It is our contention that the other methods available to deal with pretrial publicity have inherent limitations and that therefore change of venue may under some circumstances be constitutionally necessary. Continuance, as I've said may be ineffective but the publicity may revive and that it conflicts with the defendant's right to a jury trial. Voir dire may be ineffective for reasons I've also described and for -- also for reasons that this Court in Rideau recognized. In Rideau, this Court based its finding that due process required a change of venue. In that case, on the exposure of the community to prejudicial publicity it specifically refused to base its finding on a particularized examination of the transcript of the voir dire proceedings. If change of venue is required depending on the circumstances by due process, then we contend that it cannot be limited to felony cases, that there is no rational for this distinction because as this case indicates community prejudice may arise from the personality and notoriety of the individual, rather than the particular crime and also from the substance of the activities not just from the technical charge.
Speaker: Supposing that you prevail, do you think that by the graphic that a – you bare ground now?
Elizabeth B. Dubois: I think that there's no way of knowing Your Honor. I think that the only way --
Speaker: But you knew the statute to play wouldn't you. I suppose the new statute gives you the projection?
Elizabeth B. Dubois: Yes. I think if we prevail that the solution would be a reversal of the conviction, the new trial which he would have an opportunity to show that he has the right to change of venue. We don't claim he has an absolute right to change a venue in this case. We don't know, we claim here as a right to have a hearing in which he can introduce evidence to show that and under the new statute of course, he now would have that right in any event also under this Court's reversal.
Thurgood Marshall: If the Court limited due to affidavits and exhibits, would you say that's a denial of due process?
Elizabeth B. Dubois: I'm sorry Your Honor, I missed the beginning.
Thurgood Marshall: The Court says the only way you can show prejudice is by affidavits and exhibits. Would you say that's a denial of due process?
Elizabeth B. Dubois: I would say that -- no, I don't answer that as absolute rule. I mean I can imagine that there might be circumstances in which it was necessary to bring in people from the community to actually testify. Also it's been recognized that one of the -- you know, perhaps best ways of showing community prejudice is not the traditional ways that have been used in the past. The advice is but some kind of opinion in Poe. Something, I think that --
Thurgood Marshall: But now you get, what more you want than you had in this case.
Elizabeth B. Dubois: Your mean what more opportunity than there was in this case? Your Honor, one --
Thurgood Marshall: Your only complain is that the judge would not let you put on evidence. Is that your own?
Elizabeth B. Dubois: No Your Honor, it's not just that. It's just that the judge would not deal with the merits of the situation. The judge did not rule that he would refuse to take judicial notice of the massive news coverage. He did not rule that that massive news --
Thurgood Marshall: Not that I agree on for the sake of my question, but made no effort to. He couldn't have restricted you from filing exhibits. He couldn't have restricted you and prohibited you from filing affidavits and we would have had something to go on but here all we have is the affidavit of the defendant that on the advice of his lawyer, he didn't think he could get a fair trial. That's all we have. Is that right?
Elizabeth B. Dubois: The affidavit of the defendant is also news coverage which is not in the record but which is before the judge and which the judge new of.
Thurgood Marshall: Well, I just want to read the Milwaukee newspaper.
Elizabeth B. Dubois: Your Honor, this Court has held in other cases I believe. Well in the case like Coleman versus Alabama where the Court refused to consider the issue or hold the hearing that that in itself is a denial of due process. What we're asking is the refusal not just to hold a hearing but to consider the issue on the merits that is the denial of due process. That in the contingent of the State ex rel. Ricco versus Biggs case which was cited -- which declared unconstitutional statute like this. There was absolutely nothing in the record. All that happened was exactly what happened in this case, the defendant came in and asked for change of venue. The court said that it wasn't allowed for. It was ruled that he had a chance to at least be heard on the merits. This judge, it wasn't just that he denied on the hearing, he refused to decide on the merits that this coverage which he knew of was inadequate or that the coverage should have been brought in. I'd like to reserve whatever time I have.
Warren E. Burger: Very well Mrs. Dubois. Mr. Tinglum.
Sverre O. Tinglum: Mr. Chief Justice ---
Warren E. Burger: Mr. Tinglum.
Sverre O. Tinglum: If the Court please, I would like first of all just to mention briefly a -- what is the difference of opinion about the statement of facts, the respondent did not take issue in its brief with the statement of facts presented in the appellants brief. The misunderstanding arises in this fashion. That the statement of facts in the appellants brief contains considerable detail, factual detail about what happened at the trial, what the testimony of this witness was and that witness was and our disagreement arises and that the respondent takes a position that such facts do not have any relevance whatsoever with respect to the issue which the appellant seeks to raise and seeks to have decided by this Court. The ground rules of this Court as I understand them and as expressed by this Court in Mooney versus Holohan and other cases is that, an appellant who seeks reversal of his conviction on the grounds that he has been denied a constitutional right must show that he and not some hypothetical member of a class has been denied due process. The constitutional right the appellant seeks to have indicated here is the Sixth Amendment right to a trial by an impartial jury. That is a jury that is not affected by community prejudice to the point where it cannot judge the issues of fact impartially in the case. The constitutional right is sought to be indicated is not change of venue but the right to an impartial jury. Now, the appellant says that under certain circumstances and this is following this expression or something similar to it is found four different places in the briefs filed by the appellant. The Court is told that under certain circumstances a change of venue may be constitutionally necessary even in a misdemeanor case to protect a defendant's right to a fair trial by an impartial jury and the reason we contend that the appellant repeatedly says under some circumstances, this may be constitutionally necessary is because the appellant recognizes that this Court has not been given a factual record, a factual setting in which against which the constitutional issue can be decided. The question that the appellant seeks to raise is certainly an interesting one, it's a tantalizing one. There is not much law previous authority on the subject. There will apparently be less in the future because of the trend among the States to grant changes of venue in all criminal cases and not to limit the right to change venue to felonies or capital crimes or make such other distinctions. It's the respondent's position that the Court is being asked to give an advisory opinion and this Court has repeatedly said in the past that it does not seat to give advisory opinions. Now the Wisconsin Supreme Court in this case decided, made a decision on the constitutional issue raised and argued by the parties in that Court. And its respondents position here that the Wisconsin Supreme Court should not have done so because it did not have a factual record that would raise the constitutional issue. No one to my knowledge raised in the Wisconsin Supreme Court the question of standing to challenge the constitutionality of that statute. The Court there had to -- when you look at the record hand to deal in abstractions and this Court have said in the past, specifically referring the United Public Workers versus Mitchell as one case where this Court has said it will not deal in abstractions but it must be presented with concrete legal issues in factual settings before it will undertake to decide the constitutionality of a statute.
Potter Stewart: I understood the appellant's theory to be that since the trial court denied the motion for change of venue not on the ground that there was no showing of -- no sufficient showing of community prejudice but rather on the ground that no matter how much community prejudice, you may show I cannot and will not listen to any evidence among those lines because the statute of the state absolutely forbids me to grant a change of venue so any hearing on that community prejudice would be a waste of time for both of us.
Sverre O. Tinglum: That's all --
Potter Stewart: And therefore that we must assume in this case that what this case amounts to is a denial of a hearing on community prejudice and we perhaps may assume that there would have been, could have been an extraordinary showing of it, right along the lines of Rideau against Louisiana. But that the District Court said even assuming that kind of a case, I can't hear it, won't hear it because I can't grant a change of venue anyway. It makes a little bit like that, the Chicago censorship case where there was no evidence really either of what the movie was but assuming the very most defensive imaginable kind of a movie, the question was that was there any power to have a prior restraint of a showing?
Speaker: Now there is the position that Justice Heffernan took on the dissent.
Sverre O. Tinglum: Yes, it is. As a matter of fact, the only justice of the Wisconsin Supreme Court that addressed himself, that seem to address himself to the question of the appellants standing to raise the issue of constitutionality was Mr. Chief Justice Hallows that wrote a concurring opinion in which he expressed on opinion on the constitutional question but said that this record show no prejudice and therefore we would vote to affirm the conviction below.
Thurgood Marshall: Page 20-A and 21-A, what is that document?
Sverre O. Tinglum: 20-A and 21-A as I understand it Mr. Justice Marshall is a document that was submitted to the trial court at the time the trial court denied the motion to change the venue. The defendant as I understand it presented this document at 20 and 21 to the trial court and asked the court to sign this document in which the Court would find facts that where more or less in accordance with the affidavits submitted by the defendant and the -- it's also my understanding that --
Thurgood Marshall: Now don't you know why it was charged to do it?
Sverre O. Tinglum: Pardon?
Thurgood Marshall: Was it separate documents?
Sverre O. Tinglum: I understand it was a separate document.
Thurgood Marshall: Well, how did it get in the record?
Sverre O. Tinglum: It -- I don't know if it's a --
Thurgood Marshall: We know nothing about it.
Sverre O. Tinglum: -- a fugitive document, I don't know.
Warren E. Burger: How did it get in the record with the label, findings of fact and conclusions of law and no other explanations, do you know?
Sverre O. Tinglum: I don't know.
Warren E. Burger: Did you challenge the inclusion of this item in the appendix?
Sverre O. Tinglum: I did not. I --
Warren E. Burger: At best it should have been labeled proposed or something of that kind, should it not?
Sverre O. Tinglum: Perhaps should have, but I assumed that this was a document that the defendant asked the trial judge to sign and he said no, I'm not going to sign it, you can file it if you want but I'm not going to sign it. But I assume that's how it found its way in to the record but I don't know how.
Warren E. Burger: Mr. Tinglum, do you know whether it is or is not in the original record in the trial court and in the record before the Supreme Court of Wisconsin?
Sverre O. Tinglum: No I do not. Again, I assume --
Warren E. Burger: Then that's suggesting you have a responsibility for this, you did not bring the case here of course.
Sverre O. Tinglum: I don't know.
Speaker: What position that the prosecution take below on this question of publicity and burden of proof and the like?
Sverre O. Tinglum: The prosecution at the trial court level took the position that it would -- that a change of venue that the whole question of the change of venue was a problematic matter for legislative regulation and that the Wisconsin legislature had only acted to grant the right to change venue in felony cases. The prosecution at the trial court level took the position that in as much as the legislature had not granted, extended the right to change of venue to misdemeanor cases that it would resist and it did resist and opposed the motion for a change of venue. Now, regardless of -- I feel with somewhat of a disadvantage because here as the Wisconsin Supreme Court that has decided the very issue that I claim it would not be proper for this Court to decide. Here again this Court has said in the past, in the Tileston case, in Cramp versus Board of Public Instruction that this Court will exercise its independent judgment on a question of standing and will not simply follow the lead of a State Supreme Court. The court has stated the question as the question of standing as being one of whether the defendant has sustained an injury by the statute that is attacked by enforcement of the statute has been attacked. The record in this case when you compare it with the record in Rideau, Irvin versus Dowd, Estes versus Texas, Shepherd versus Maxwell. The record here doesn't even give this Court an opportunity to say that -- well it was even comparable, or it was even likely that this defendant had to go before a jury from a community that was even probably prejudiced. The facts simply aren't in the record.
Speaker: Well is it possible for to say that the prosecution prevented the presentation of such facts?
Sverre O. Tinglum: No sir. I do not believe so. The Wisconsin Supreme Court in its opinion said that there was no bar to the presentation of facts at the trial court level and the only thing we find is the -- this affidavit that has been discussed here earlier on pages 23 -- 24 and 25 which is in very general conclusory terms. Now --
Potter Stewart: Perhaps I misunderstood your last question. I thought the State had taken a very positive position as to the availability of a change of venue in a misdemeanor case on grounds of community prejudice and if this is so, is the State in the position to complain about the deficiency of the record?
Sverre O. Tinglum: I believe so and I think I misunderstood your earlier question and that is why I perhaps, I should have phrase the answer differently. The State could not have, that is the prosecution, could not have prevented under any circumstances could not have prevented the defendant from making a record of facts about community prejudice. The opportunity was therefore the defendant in the first place to file as Mr. Justice Marshall has mentioned to file affidavits, to file exhibits, newspaper clippings being denied. That opportunity after the first denial of the motion, the defendant had many other opportunities introduced the same evidence a renewed motion for change of venue with exhibits, with affidavits. The defendant had an opportunity to file the same evidence with the motion for continuance. It would have been relevant there. The defendant had an opportunity to file the same type of evidence, would have been relevant on a post trial or post verdict motion for a new trial on the ground of community prejudice. Furthermore, the defendant didn't avail himself of the opportunity to make a record that courts have traditionally considered of utmost importance in community prejudice cases and that is a record on the voir dire examination. There, certainly we know that there is no request in the record, anywhere that the voir dire examination be reported. We have to assume that there was a careful examination of jurors by defense counsel at the trial but we don't know. And the blame for this can be laid at the door of the defense because it's the defense's responsibility to make a record. If it is going to stand on a constitutional issue and hopes to show some reviewing court that the defendant was denied irrelevant constitutional right.
Potter Stewart: Are you familiar with that Tileston case in Chicago?
Sverre O. Tinglum: I'm not --
Potter Stewart: It required different area of the law but I think in this respect, there is an analogy. It had to deal with the right to sensor a movie, any movie and the place in that case deliberately kept out of the record the nature of the movie. And therefore ask the Court to assume that it was the worst possible kind of movie and said even on that assumption. Our claim is there can be no censorship of it. There was absolutely no evidence whatever of the nature of the movie and the case was decided and the constitutional question was decided as I remember by the three-judge District Court and I know by this Court that kind of a record i.e. no record at all to speak out.
Sverre O. Tinglum: I would say that I would think that would be just the reversed of our situation. That we have in this case because in that sort of a case, you can safely assume for constitutional purposes that the film was the worst possible kind of garbage but in this type of case, you cannot assume that Milwaukee was a flame with prejudice and that there were lynch mobs roving the streets and crowds inside and outside the courthouse yelling for the defendant's blood. You don't have any of the facts that were presented in the records, in the Rideau case where they had been a televised confession. You don't have any of the facts that were presented to this Court in Irvin versus Dowd or in Shepherd versus Maxwell. It seems to me to be exactly the reverse of that situation.
Potter Stewart: The court has held that there at least can be situations where in order to comply with the requirements of due process of law, there must be a change of venue. You would agree with that.
Sverre O. Tinglum: Yes.
Potter Stewart: When it comes to Rideau case, that's one that comes to mind.
Sverre O. Tinglum: Yes.
Potter Stewart: And in this case as I understand that the State of Wisconsin has said even in a Rideau case there cannot be a change of venue if it's a misdemeanor.
Sverre O. Tinglum: That's correct. That's what the Wisconsin Supreme Court said.
Potter Stewart: Right.
Sverre O. Tinglum: And it's my -- it's the respondent's position here that --
Potter Stewart: That it didn't need to decide that.
Sverre O. Tinglum: That it didn't need to decide that and shouldn't have because it didn't have. Now, if --
Speaker: Or forever not defending the basis of the decision of the Supreme Court (Inaudible).
Sverre O. Tinglum: No.
Speaker: That's the only issue here.
Sverre O. Tinglum: I don't believe it is because this Court has said that it will take exercises independent judgment on the matter of standing. And that -- so that that is a new issue and we don't have to go to the Wisconsin Supreme Court to look at the basis of their decision because they didn't decide that issue. Looking at the record, all we know about this case was that there was an arrest at the end of August 1967. There were six postponements along the way that cannot be laid at the door of either the defense or the prosecution. One of them was caused by a mistrial but there were a number of postponements. There was an affidavit of prejudice filed against the judge and it was honored. There were no exhibits filed, there was no renewal of the motion for change of venue. There was no request to the Court that the voir dire examination be reported. The voir dire was conducted and finished in one half a day. The jury was selected, the State put in its case all in the course of one afternoon. The defense put in its case the following morning --
Speaker: Was there ever a motion based on -- for a continuance based on prejudice?
Sverre O. Tinglum: No, sir.
Speaker: Did the counsel say that such a motion would have had unfortunate consequences to the defense in the sense of the speedy trial?
Sverre O. Tinglum: Yes. The --
Speaker: Did you make a motion like that for continuance? You waive your right to a speedy trial. Is that what you said?
Sverre O. Tinglum: That's correct and that they might have a very valid reason for wanting a speedy trial and not wanting a continuance and it was the defendant's right to insist upon observance of that constitutional right to a speedy trial. Therefore the defendant should not be compelled to make that motion in order to make a record of community prejudice. That is the defense position.
Speaker: Although a change of venue would involve some delay.
Sverre O. Tinglum: The change of venue would involve some delay, it ordinarily does.
Warren E. Burger: Was there any request in moving papers as to where the appropriate venue might be?
Sverre O. Tinglum: In general language to some county, as I recall where an impartial trial may be had.
Warren E. Burger: But none was suggested specifically?
Sverre O. Tinglum: No county was suggested specifically and the motion is on page 23. The motion is for a change of venue to a county where a community prejudice against this defendant does not exist but there's no specific county mentioned or requested by the defendant. The -- in the record then we have examined what's in the record but it leaves unanswered. The basic question of was there a prejudice in Milwaukee? Was there, where there lynch mobs? Was there the tremendous intensity of feeling in Milwaukee either bearing on this incident or other incidents in the defendant's history? Where there crowds? Was there a credible atmosphere? All the facts that were presented to this to this Court in this other cases that are relied upon by the defendant were in the record but they're not here. We don't know whether the editorials mentioned in this affidavit. The editorials are described as being sometimes critical or frequently critical of the defendant. This isn't saying that an editorial has condemned this man or has prejudged him on the issue of his guilt of innocence in this particular case.
Warren E. Burger: I don't recall that it's a motion identified the source of the editorials as the Milwaukee journal or sent in any other place.
Sverre O. Tinglum: No sir, it did not.
Speaker: I don't understand your argument because even if they had been in mass, in great detail they would not be admissible by your own interpretation of the statute. They are irrelevant.
Sverre O. Tinglum: Obviously, if -- unless the trial judge had been so tremendously impressed by these evidence that he would have taken a more careful, look at the statute and decided to construe it differently. But you're correct Mr. Justice Douglas, but the filing of the affidavits and of the rims of newspaper clippings if there were such with the -- as an exhibit to be attached to this motion would have put these matters of record in this case and would have given a reviewing court an opportunity to look, to see whether there was a likelihood that an impartial jury could not be impaneled to hear this case.
Speaker: Why should a reviewing court act like a trial court? I have looked in the first instance, had evidence which the trial court had said, I won't look at all and the trial court does it because of (Inaudible) law. Wouldn't an appellant court just reversing remand, would have a trial judge take the evidence in the first instance?
Sverre O. Tinglum: If the issue weren't a Sixth Amendment question of whether or not, this defendant had a fair trial in a fair tribunal by an impartial jury. The issue raised and the only basis upon which a reversal could be predicated is that the defendant did not have a trial by an impartial jury and so this Court has required in the past even in the Rideau case and in Shepherd and in Irvin versus Dowd has required that there be something in the record so that this Court could say, this situation was so bad in that community that it's likely. We don't ask that --
Speaker: Actually, this is -- let's say this had been a felony case and the petitioner wanted to a change of venue on the grounds of prejudice and the trial court said, awfully sorry that we don't listen to evidence like that in this court. They just don't listen to it, at least as for my confession on television. Sorry, we just don't listen to that on Court and he was convicted and that I suppose you had make the argument. It seems to me like you would that unless there is some evidence in the record. No appellate court could reverse for refusal to accept evidence.
Sverre O. Tinglum: Yes, sir. I have to make that argument and I think that's what this Court would have said in the Rideau case for example where there was a televised confession. If the record brought to this Court in the Rideau case, had had nothing in it.
Speaker: [Voice Overlap]
Sverre O. Tinglum: By showing a televised confession, I don't think this Court would have decided the Rideau case the way it did. If the Court hadn't known about a televised confession, the Court couldn't have --
Speaker: So it acted the way it did.
Sverre O. Tinglum: It got to be some offer or proof with some specific, yes sir.
Hugo L. Black: May I ask you what do you understand to be meant by the paragraph on page 19 of 214-A in the opinion? If the defendant in present case, this is the Supreme Court's opinion, appealed that he was denied a fair and impartial trial, no such claim has been made in this Court. The issue can be passed, raised and the evidence can be presented on a motion for a new trial based on a denial to a fair and impartial trial, what do you understand that meant?
Sverre O. Tinglum: I understand that paragraph to mean, Mr. Justice Black, that the Court was saying, if counsel was convinced that there was serious community prejudice, serious enough to warrant a change of venue, counsel could have made a --
Hugo L. Black: But it does it big, good here. So they can.
Sverre O. Tinglum: That's yes. Oh! I'm sorry, I misunderstood your question. Yes, the Court was saying that that --
Hugo L. Black: Despite the affirmance, you could raise a question in the lower court now as to whether you've been denied.
Sverre O. Tinglum: Within that one year period.
Hugo L. Black: What did you say?
Sverre O. Tinglum: Within the one year period following the conviction, yes sir. That time is now elapsed.
Hugo L. Black: But it might be elapsed. Would it elapsed it was still pending in the court question.
Sverre O. Tinglum: Presumably the opportunity to file that motion in the trial court was still there at the time the Wisconsin Supreme Court decision was rendered.
Warren E. Burger: You say presumably can't, doesn't this record show whether the year had run or if it had, as Justice Black suggested, perhaps the tendency of the appeal had suspended, wouldn't that withhold the running of that statute. Do you happen to know whether the opinion of the Supreme Court of Wisconsin came down within a year after the conviction or not?
Sverre O. Tinglum: I believe it did, I don't have the date.
Warren E. Burger: Well --
Hugo L. Black: The main interest I have and it is, is the affirmance of the Supreme Court to be read as meaning that even now, he can make a motion for a new trial on the basis that you denied a fair and impartial trial. It sounds to me like it reads that way.
Sverre O. Tinglum: I believe that is a proper interpretation to put on that paragraph. I believe what is --
Hugo L. Black: Well would it be a final judgment here?
Sverre O. Tinglum: Pardon, I'm sorry.
Hugo L. Black: Would it be a final judgment until an issue had been determined?
Sverre O. Tinglum: It would be in Wisconsin --
Hugo L. Black: I mean here for us. He still has a chance to challenge, the main point there really would be final here so that we should dispose of?
Sverre O. Tinglum: I don't believe this appeal to this Court would toll, would extend that one year period within which a motion can be made to vacate a judgment in Wisconsin. I don't -- that's my offhand opinion. I don't believe it would sir.
Warren E. Burger: It would occur to me that the Supreme Court of Wisconsin in writing that opinion would not have said what it said if the year -- if this was an academic exercise if the year had already expired.
Sverre O. Tinglum: It occurs to me too but I just don't have the dates in mind.
Warren E. Burger: You have [Voice Overlap] that to do so.
Speaker: At that very place, as that the trial ended on February 9, 1968 and I think the opinion came down during the August term of 1968, wasn't that supply your dates?
Warren E. Burger: As the trial did end --
Potter Stewart: In August of 1968 and page 205-A of the record indicates that the opinion of the Supreme Court of Wisconsin was, the 4th day of February, Anno Domini 1969, that's within a year so as of the time of the opinion, one year had not elapsed.
Sverre O. Tinglum: No, its five days --
Potter Stewart: Now it has since.
Sverre O. Tinglum: Yes.
Thurgood Marshall: It elapsed, however while the case was still pending in the court?
Sverre O. Tinglum: While this remedy was being pursued by the defendant while this constitutional issue was being pursued on appeal.
Thurgood Marshall: That's right.
Sverre O. Tinglum: Yes. With respect to the constitutional question, the due process question, I believe that in order to -- as I said before, in order to even reach the question, you have to begin assuming a parade of horrible facts about Milwaukee in February of 1968 which is the respondent's position that this Court should not and in the past has refused to do. The -- there are two cases other than this current case in Wisconsin Supreme Court that I've discussed this question and they're both against our position with respect to the balance of the argument by relying on their brief. Thank you.
Warren E. Burger: Mrs. Dubois, your time has expired but we'll extend that a little bit so that you can offer a rebuttal.
Elizabeth B. Dubois: Alright, I just have a few points to make --
Warren E. Burger: You have four minutes.
Elizabeth B. Dubois: Thank you, Your Honor. First, with respect to new trial, I just want to make absolutely clear that under the two cases that we had found dealing with the standards from reversal on the grounds that the trial was unfair on a motion after verdict. The standard is entirely different from the constitutionally required standard for a change of venue. One case is State versus Nutley, says that reversal for an unfair trial can be granted only with the publicity with such that the jurors could not help but predetermine the issue. The other case is Zelmer versus State which is not cited in our brief. It's at 159 northwest 2d 669. It's a 1968 Wisconsin Supreme Court case. It says that you can reverse only if the Court is convinced that the defendant should not have been found guilty. I think the constitutional standard that this Court has defined in cases like Rideau, Irvin, Shepherd and a number of others is a standard of potential for prejudice not an extreme likelihood that the defendant would not be found guilty. Secondly, on the continuance remedy, I think it's clear that in the case like this continuance would be inadequate unless somebody like Father Groppi is simply to stop the kind of civil rights activity in which he was engaged and continues to be engaged. Thirdly, in considering the adequacy of the record of community prejudice made in this case. I think it's important to recognize that this is not an entirely new issue that the Court is being asked to decide that in Rideau, this Court made it very clear the change of venue was a constitutionally required method of guaranteeing theory impartiality in certain circumstances. All we asked for below and all we're asking for it now is the chance to prove those circumstances. Finally, as the few points with respect to the record of community prejudice in this Court. That it gets important to recognize that when the defense counsel went before the judge in this case and asked him to take judicial notice of adverse news coverage, it was before that court at that time which had been living for months indeed years with prejudicial publicity about Father Groppi not before this Court. Secondly, I believe it's fairly common for courts to take judicial notice of or to be asked to take judicial notice of adverse news coverage and that if they consider that inadequate, want to see it or want some kind of showing that they can ask for hearing. Thirdly, on the --
Warren E. Burger: On that point, isn't that the conventional way if you are asking the Court to take judicial notice of the whole category at least to suggest by way of proffer, some specific instances as to alert the Court to the area?
Elizabeth B. Dubois: Yes. I think Your Honor in this case. The defendant did suggest both in his affidavit in the motion and also in those proposed findings of fact which you asked about. The kind of television and newspaper coverage and to answer finally specifically that question about the proposed findings of fact that appear, I think it's in record 23. They were rejected in the record at page 9 is the hearing on the motion for a change of venue and the court rejected those charge findings of fact on the same grounds that it rejected that proffer of proof, saying in page 9 that change of venue was asked for and the motion will be denied and not being provided for in the Wisconsin statutes. Also filed with the Court as the findings of fact in conclusion of law, I leave that unsigned.
Warren E. Burger: Let me interrupt one thing in the last page with your appendix. Was the notice of appeal to this Court filed in the Supreme Court of Wisconsin? Now, that has a bearing on the footnote in as to the possibility of a new trial as to the possibility of a new trial. When that notice of appeal was filed, I would surmise must be what is on the reverse side of the certification, the third of April 6, 1969. Is that correct? That's 233-A and 234-A. Is that the tape then on which you perfected an appeal to this Court? Or --
Elizabeth B. Dubois: At least, I'm not sure. I only know that the opinion of the Supreme Court came down shortly before the expiration of the year.
Warren E. Burger: What is the time to appeal in -- on what -- what was your deadline here? Do you know?
Elizabeth B. Dubois: Notice of appeal to this Court was filed in the Supreme Court of Wisconsin May 6, 1969.
Warren E. Burger: Well the time, the one year had expired by that time? Had it not?
Elizabeth B. Dubois: Yes, Your Honor because February 9, 1968 was when he was tried so it had expired at that time.
Warren E. Burger: But it could, that motion could have been made after the judgment. There's still time to do it.
Elizabeth B. Dubois: They -- I think there was something like three days, three or four days.
Warren E. Burger: Thank you, Mrs. Dubois.
Speaker: Yes, you should made a motion for rehearing anyway in the Supreme Court.
Elizabeth B. Dubois: There had been --
Speaker: I noticed in page 232-A --
Elizabeth B. Dubois: Yes.
Speaker: On the 1st day of April.
Elizabeth B. Dubois: Yes, there was a motion for the hearing in the Wisconsin Supreme Court.
Speaker: So wasn't until after the year it expired in any event before the proceedings and the Supreme Court were precluded. Well, if the statute of limitations in your judgment designed to run from the date of judgment as final or from the date of the trial. Here, judgment of course not filed until our -- we (Inaudible) the case.
Elizabeth B. Dubois: No Your Honor, I think that this law -- my understanding of Wisconsin law that be no question that it run from the date that it was final before, that it wouldn't run from this Courts decision. And it would not be moved now for new trial.
Speaker: Would not be what?
Elizabeth B. Dubois: If I understand Your Honors questions, I think it's clear that the defendant would not now be able to move for a new trial under Wisconsin law, his year has run.
Speaker: My question is, if there is a statute of limitations from the date of final judgment of one year, why is this question not still open in the Court of Wisconsin to make a notion for a new trial on the ground of an unfair trial?
Potter Stewart: I think perhaps the answer to that is it doesn't say one year after final judgment --
Elizabeth B. Dubois: No.
Potter Stewart: It says one year after trial.
Elizabeth B. Dubois: Yes.
Potter Stewart: Or in the footnote 11.
Elizabeth B. Dubois: I think the words of the Wisconsin --
Speaker: Well suppose you take it here and after appeal and get decided in the Court of Wisconsin, do you think that you have been barred?
Elizabeth B. Dubois: Although, I think that the whole remedy of the motion for a new trial is something that under Wisconsin law, you make after the trial, you try to correct certain errors or ask the Court to rule again on certain errors. I think that it is not designed to provide the kind of remedy for change of venue.
Speaker: Well it might be, it might be but the Supreme Court of Wisconsin seemed to think that it has still had the right at that time. I don't see how it could be an (Inaudible) from the finality of the judgment.
Elizabeth B. Dubois: Oh! I think that that --
Speaker: Which is final after appeal?
Elizabeth B. Dubois: I think that it's perhaps because it was an after thought of the Supreme Court of Wisconsin. The Supreme Court of Wisconsin had never before that opinion suggested that a motion for a new trial is the proper way to bring in Community prejudice just to find a change of venue. It never before suggested that anything --
Speaker: Never before been suggested but you see which have been suggested here in this case, in this opinion of the Supreme Court.
Elizabeth B. Dubois: In order to justify the constitutionality of its statute. Thank you.
Warren E. Burger: Thank you, Mrs. Dubois. Thank you. The case is submitted.