Warren E. Burger: Under for our argument today is number 269, Price against the State of Georgia. Mr. Wallace, you may proceed whenever you're ready.
Allyn M. Wallace: Mr. Chief Justice and May it please the Court. As I stand here in this place where many great men have stood before this August body of our government, I'm reminded of an incident that occurred in the Supreme Court of Georgia before Judge Douglas in my early years in the practice of law. In addressing that body, I was arguing with all my might the point of law and the late Chief Justice of that Court said to me, Mr. Wallace, we are not interested in hearing your version of the law, remember, we make it here, we'd rather hear something about the facts. With that thought in mind, and this being my first appearance before this great body and with the indulgence of the Court, I would like if permissible to give a thumbnail sketch of just what happened in this case.
Warren E. Burger: In your own way Mr. Wallace.
Allyn M. Wallace: Thank you sir. In 1962 in October, the petitioner in Certiorari Earl Price was indicted in Effingham county, superior -- Georgia Superior Court for the offense of murder. The following day, he was tried in that Court for murder before a jury. The judge, the trial judge is now deceased. The key is that the jury brought in a verdict on the trial of murder of voluntary manslaughter. They said nothing about the murder charge in their verdict. The verdict merely said, we the jury find the defendant guilty of voluntary manslaughter and fixed his punishment from 10 to 15 years. I took that case to the Court of Appeals for review of Georgia. It was reversed on an erroneous charge of the late judge Walton Usher. In 1967 in October, the same man was called upon in the same Court, under the same indictment for the same offense of murder, to answer and to plea to the charge of murder. Prior to the trial of the case, second time in 1967, I filed a plea in the Court of former jeopardy. The plea was argued at length and the Court overruled my plea of Double Jeopardy and the case went to trial, the second time, not for manslaughter but under the same indictment, grand jury indictment for the same offense before a jury and before the same trial judge. That jury brought in a verdict of guilty and said nothing about murder or voluntary manslaughter as did the first jury. Fixing his sentence at 10 years rather than 10 to 15 years as the first jury did. The usual procedure was followed and the case was again appealed to the Court of Appeals for Georgia and the Supreme Court of Georgia I believe and they sent it to the Court of Appeals and then it went back by a certiorari to the Supreme Court of Georgia and we are now in this Court for an opinion. There's two constitutional questions that we raised --
Hugo L. Black: Could I ask you question?
Allyn M. Wallace: Yes.
Hugo L. Black: (Inaudible) Court again for overruling your motion for being barred which took on?
Allyn M. Wallace: I believe if Your Honor please, the appendix will show that no reason was given except that the motion was denied if my memory serves me correct, that's correct.
Hugo L. Black: You don't know the --
Allyn M. Wallace: That's correct. The case –-
Warren E. Burger: Was your position Mr. Wallace that the second trial he could be charged and tried only under the charge of voluntary manslaughter?
Allyn M. Wallace: Yes, that's correct.
Warren E. Burger: Nothing more?
Allyn M. Wallace: Yes.
Warren E. Burger: Did you cite Green against the United States?
Allyn M. Wallace: I certainly did, yes, and I think the appendix will show that and not only Mr. Chief Justice did I cite the Green case, but there was a case out of the Second Circuit Court of Appeals and I believe Justice Marshall wrote that opinion when he was on that bench. I may not pronounce that word correctly as no set rule for pronouncing proper names but I believe its Hecknes, is that correct? Henny?
Speaker: Kenny.
Allyn M. Wallace: And in that decision that Justice Marshall wrote of that opinion, he used the Green case and I used both of these cases in my argument in the trial Court. Now, --
Speaker: Mr. Wallace, can I ask you?
Allyn M. Wallace: Yes.
Speaker: If you had been right, would it have been necessary to have a new indictment limited to charge of voluntary manslaughter?
Allyn M. Wallace: Under Georgia law, I believe that is correct sir and that was what I insisted that a new indictment be brought. Now, the --
Speaker: A statute limitation was brought --
Allyn M. Wallace: I believe he could, yes, that's my humble opinion.
Warren E. Burger: Why were you so much concerned about whether he was reindicted or whether was tried on any charge higher than voluntary manslaughter?
Allyn M. Wallace: Well, Mr. Chief Justice, I felt that to try him again would be double jeopardy. They were trying him twice for something that the first jury, the second time, the first jury had acquitted him.
Warren E. Burger: Well, whatever he's thinking of it is if there's a practical matter in the second trial, the district -- the trial judge had ruled that he would submit no charges to the jury higher than voluntary manslaughter, would that have satisfied your situation?
Allyn M. Wallace: Yes sir.
Warren E. Burger: Could he have done that under Georgia law?
Allyn M. Wallace: Yes sir, under Georgia law, yes sir. Now, when this jury and my position is the same as the Green case and the case that Justice Marshall rendered his opinion on. When that first case, jury came in and said and if I -- my memory serves me correctly, we the jury find the defendant guilty of voluntary manslaughter and we fix his punishment at -- from 10 to 15 years. It was the same even though they were solid on the murder charge. It was the same as if the jury had come in and said we the jury find the defendant not guilty of murder but guilty of voluntary manslaughter. Now, my humble opponent here may argue the point that he got a lesser sentence at the second trial even though he was tried for murder and the appendix will show that the second trial, the jury was given the charge of murder, they could have selected either/or they could have found him guilty of either murder or voluntary manslaughter as they so fit. But (Inaudible) to say my friend here on my right will probably argue that this was a lesser sentence, 10 years or with regard to 10 to 15 years. I'm sure that my friend will admit that under the rule in Georgia, our pardon and parole board when you have served a third of your minimum sentence, you're eligible for parole. Now, I take the position that there was no less sentence in the second trial than in the first trial. Now, as I stand here and argue this question which was presented here for review, I feel that that issue has been decided by this Court June of last year in the Benton versus Maryland case. I came here on a proper affidavit of certiorari. We have asked the Court to pass on these questions and the state if I may refer to their brief, has admitted that my questions have been resolved, thus the Double Jeopardy clause of the Fifth Amendment apply and if so under the facts in this case was the defendant subjected to Double Jeopardy.
Hugo L. Black: What was his -- what is the injury your man has suffered in this case?
Allyn M. Wallace: Well, Mr. Justice Black, I feel that the injury was -- you got me a little ahead of my thought, I was going to bring that out but if you give me just a second --
Hugo L. Black: Now you wait -- just wait?
Allyn M. Wallace: I feel that the -- the injury is that if the jury had been given the opportunity to decide the question of whether or not he was guilty of voluntary manslaughter rather than murder, they would have given and I believe, I may not be stating that as it was said in the case of Justice Marshall wrote the opinion on and the Green case but I feel that they would have considered his innocence, probably given more thought, a more consideration to his innocence rather than to -- considering his conviction if he had been tried for manslaughter because he was tried the second time for murder. Does that answer your question as to my position sir?
Hugo L. Black: Yeah, you probably answered to my brother's ability can be answered.
Allyn M. Wallace: Yes sir.
Hugo L. Black: I not only say is not a good answer.
Allyn M. Wallace: Yes.
Warren E. Burger: Mr. Wallace, if he had been indicted the second time for voluntary manslaughter, under Georgia law, what other offenses are lesser included offenses under that charge?
Allyn M. Wallace: I believe the Court under this statute would have -- could have – they could have found as if a misdemeanor and given him possibly a sentence of one year maximum, a thousand dollar fine plus six months in jail, I believe that's maximum on misdemeanor --
Warren E. Burger: But the worst, there's -- there was -- are lesser included offenses under Georgia law?
Allyn M. Wallace: Sir?
Warren E. Burger: There are lesser --
Allyn M. Wallace: Yes but, yes, --
Warren E. Burger: -- included offenses?
Allyn M. Wallace: Yes.
Warren E. Burger: And your position is that faced with that the jury might have found them one of those lesser included offenses if the --
Allyn M. Wallace: That's correct.
Warren E. Burger: -- murder indictment were not hanging over?
Allyn M. Wallace: That's correct sir. Now, when the appendix came up and was printed, this was a pauper case and I was -- I paid for that myself out of my pocket. I did not bring the whole record because it was rather expensive. I may have got the record from the lower appellate court covering this one issue. Now, as I said, I feel like that the Benton case has now resolved this issue and when I read the Benton case then I received instructions from this Court when I argued this case to argue the retroactivity of the Benton case in connection with this case. Now, if I may, if there are no further questions of the Court I would like at this time to reserve the remaining few minutes that I have to argue that point after the Attorney General's of -- the gentleman from the Attorney General's Office of Georgia had had an opportunity to present his side of the case. Thank you.
Warren E. Burger: Thank you Mr. Wallace.
Allyn M. Wallace: Thank you sir.
Warren E. Burger: Mr. Robins.
Mathew Robins: Mr. Chief Justice and May it please the Court. I rise now to respond to one of the two directors of this Court wherein this Court asked to show why Benton versus Maryland may or may not be applicable to the facts of this case and I respond to that firstly. I would say as reluctantly as it is as I can that Benton versus Maryland is applicable to this case but not so much because of what Benton versus Maryland says, but because it made Green applicable to this case and the implied Acquittal Doctrine which was a federal principle prior to Benton versus Maryland. I don't believe that I can escape the implied acquittal doctrine for Green. I'm particularly persuaded to this decision by the fact that the Chief Justice in his dissent in Ashe versus Swenson emphasized the fact that the phrase, run the gauntlet in Green meant as to that charge. Now, I'm afraid that in this case that is perhaps what has happened to Mr. Price. He has run the gauntlet on the murder charge.
Potter Stewart: Do you think its possible to argue that now under the law of the District of Columbia there might be prior -- an acquittal on the first degree of murder under these circumstances of a general jury verdict of manslaughter, still the law of your jurisdiction is different and that of jury verdict of manslaughter after a trial on an indictment of murder is not under the law of your jurisdiction --
Mathew Robins: I'm going to say -- I am suggest --
Potter Stewart: -- but it's not little as first degree murder?
Mathew Robins: Yes sir. I'm suggesting that because in the state of Georgia, of course, they do not come back and say that he is acquitted of murder and he is found guilty of voluntary manslaughter as were the facts in this case, but in the State of Georgia, they can return a verdict for manslaughter and it maybe because and this suggests conjecture but it maybe because the crime does not warrant the punishment which murder would require, that is death or life imprisonment, that is required by statute. It maybe that the facts as presented to the jury or such that they may feel that this doesn't warrant that kind of punishment and yet there is sufficient evidence that would warrant a voluntary manslaughter conviction. I might add also that in the State of Georgia, a jury may bring back a conviction for a lesser crime even though they were not charged on that lesser crime where the evidence warrants it.
Potter Stewart: Well, they were here though, weren't they?
Mathew Robins: Yes sir, they were in this particular case but I emphasize the point that there is discretion.
Potter Stewart: What lesser crimes were they charged off?
Mathew Robins: In this case? Voluntary manslaughter I believe Your Honor.
Potter Stewart: In all?
Mathew Robins: I'm not certain Your Honor. To my knowledge that is all. The only other lesser crime as such would be involuntary manslaughter. Now, the judge upon the recommendation of the jury may reduce the punishment to that as for a misdemeanor where the jury recommends it on voluntary manslaughter and involuntary manslaughter but not for murder. The jury is compelled on a murder charge to either recommend mercy or in their absence it would be a death sentence?
Warren E. Burger: Under Georgia law, does the jury fix the penalty in every case or is it just an option to the jury?
Mathew Robins: Well, it's a strange relationship, if Your Honor please. In the death -- in the murder situation, they indirectly fix the sentence. If they do not bring back a recommendation of mercy, the sentence is automatically death. If they bring back a recommendation of mercy, it is automatically life. In the other situations of voluntary manslaughter and involuntary manslaughter, they may fix the punishment. They may recommend a punishment I believe within the prescribed range. I am not -- I cannot state with all certainty whether the judge is obligated to follow that recommendation of the jury. In this particular case, the punishment for voluntary manslaughter is 1:20. They fix punishment at 10 to 15 initially and at subsequently at 10. This brings to mind a very important point and I want to emphasize this. It is my contention as my brother said out to the Court that I would urge this Court to find that this man has not been harmed. I recognized the harmful error as a proposition that states perhaps overemphasized the fact that there is not harmful error. I say here there was no harmful error. This man was initially sentenced to 10 to 15 and under the old law of Georgia that would have meant that he would have been eligible for a conditional release which is tantamount to a parole at the end of 10 years. In 1964, the Georgia General Assembly changed the law and required that sentences be made definite and subsequently the -- and a second trial, Mr. Price was sentenced to 10 years. This meant that he could get out at the end of five years and nine months assuming all good behavior, time off for good behavior. So he has received a material benefit by the act of the general assembly, but more importantly, he has not been harmed in what has happened I would submit. If the Court is going to consider the Hetenyi proposition then it is considering that perhaps the jury could not or would not do its duty. That it would not follow the directions of the Court. In this particular situation, the jury rejected the charge of the Court as to murder and brought back the lesser charge. I would submit to this Court that the record clearly shows that they did do their duty and it would only be conjecture that that they might have done something else had they not been -- had there not been evidence on murder.
Potter Stewart: As I understand it general Robins, you're conceding in this aspect of your argument? You're conceding at least for the purposes of argument that the -- that the trial judge should have granted the motion and should have allowed the state to try him only for manslaughter?
Mathew Robins: With that trial today, yes sir. Of course --
Potter Stewart: You are disputing that at least for purposes of argument --
Mathew Robins: Yes sir, I --
Potter Stewart: In this aspect of your argument. What you're saying that since as it turned out, he was convicted of no more than manslaughter and indeed given a lower sentence than he received its the first trial. It was completely harmless error --
Mathew Robins: Yes sir.
Potter Stewart: -- and no constitutional error --
Mathew Robins: Yes sir.
Potter Stewart: Is that your point?
Mathew Robins: Yes sir, that is my point in so far as applicability of the Benton and the Green rule made that comes under that. I'm persuaded to this argument --
Potter Stewart: This is quite a case quite unlike Green because in Green --
Mathew Robins: Yes sir.
Potter Stewart: He was tried again and that time convicted of first degree murder and sentenced to death.
Mathew Robins: Yes sir. I --
Potter Stewart: And that this therefore is quite different case?
Mathew Robins: This is quite a bit different. In fact, this case factually is different than any other case that I can find in the records of this Court with the possible exception of Cichos versus Indiana where factually, there was a similar situation and this Court chose not to pass upon it. However, getting ahead of myself however, in the Cichos case in what I understood to be just dictum it did say that the Fifth Amendment Double Jeopardy proposition was not applicable to the states. But factually, this case is different and because of the facts it takes it out from Benton, takes it out from Green and makes it a new case. I don't believe this is -- we can say Green is completely applicable because there that man came back with a death sentence, the second time, yeah. This case, this man has come back with something even less than he got the first time in so far as time to be served in prison.
Potter Stewart: Has he been given full credit in his -- in serving of his second sentence for the time he served and as result of the first conviction?
Mathew Robins: Sir, no Your Honor, he did not serve anytime after --
Potter Stewart: None at all?
Mathew Robins: None at all to my understanding.
Byron R. White: Has he yet?
Mathew Robins: He is serving now I believe Mr. Justice White but he did not serve anytime after the first sentence. However, Georgia law does provide that where one remains incarcerated in jail during an appeal they will reserve, will receive benefit for that time. So he would have received benefit had he been incarcerated.
Warren E. Burger: Now, General Robins, the language the constitution prohibition is against being twice placed in jeopardy for the same offense. Now, when they tried him the second time, if the rationale of the Green case carries over and that applies here implied acquittal, was he not then placed in jeopardy of a conviction of murder eventhough in fact the jury returned the lesser verdict?
Mathew Robins: Yes sir. That I believe I would have to admit that to the Court. I've studied the cases. I've strained for some distinguishing characteristic but I cannot find a distinguishing characteristic and as I stated earlier, I'm also -- persuaded that conclusion by Your Honor's dissent in Ashe versus Swenson which makes reference to running the gauntlet on that charge and if we apply that rationale to this case, Mr. Price ran the gauntlet on the charge of murder though he was convicted of a lesser crime. Also, I must recognize that in US versus Ball that this Court said that the double jeopardy provision is not determined upon the punishment that it receives but by the fact whether he has in fact been tried for that crime. So, it's difficult for me at all to escape this but not withstanding this and even admitting if this whould be an admission that double jeopardy was a factor. I'm saying there are other elements which take this out and make this -- makes this harmless error instead of harmful error, and of course the Chapman versus the California case is the best case on harmless error and it applied in that case a test in Faihey versus Connecticut which said that where there is reasonable possibility that evidence complained of might have contributed to the conviction. Well, in this particular case, in the Price case, the jury rejected that evidence of murder. It rejected the charge of the Court and in essence it says we reject any evidence on murder. We find that it is not an applicable situation without finding innocence or quilt. We're saying this is more applicable, voluntary manslaughter.
Thurgood Marshall: Mr. Robins.
Mathew Robins: Yes sir.
Thurgood Marshall: Can we take any consideration to sentence when the constitution says he shall not be tried. It didn't say he shall not be sentenced?
Mathew Robins: I believe Your Honor that this Court could take it under consideration in the -- under the proposition of harmless error whether or not a --
Thurgood Marshall: Is there any provision of the Constitution that you couldn't excuse under harmless error?
Mathew Robins: Well sir, yes sir. The Chapman versus California case specifically said that some basic rights were not harmless error. For instance the coerce confession, the right to counsel, the right to an impartial judge, it said that in the case.
Thurgood Marshall: It didn't say double jeopardy?
Mathew Robins: I don't believe -- I don't remember that it did sir.
Thurgood Marshall: Well, isn't the whole argument about Double Jeopardy is that you should make the man be exposed to it the second time?
Mathew Robins: That is the -- yes sir that is the contention of this Court.
Thurgood Marshall: And then the error in this case you admit was at the beginning of the trial and the trial should not admit him?
Mathew Robins: Under --
Thurgood Marshall: Is that true?
Mathew Robins: Under the law today, I would have to admit that that --
Thurgood Marshall: And despite that fact, you can try in harmless error?
Mathew Robins: Yes sir, because I submit to the Court that that error if it were in fact error did not go to a substantial right of this man. He had all the substantive rights at his trial to reject --
Thurgood Marshall: His right was not to be twice charged with the same crime?
Mathew Robins: But so were the --
Thurgood Marshall: Once he was put to trial on that, is it not true that the constitution was violated as of that moment?
Mathew Robins: Yes sir it is true, but so were the rights of all the defendants for instance that come -- that came before the Miranda decision, that came before the Gideon decision. Well, that was made retroactive but some of the cases that were not made retroactive, their rights also were violated but this Court has decided that that was not such a substantial right that it should be made retroactive and I'm submitting to --
Thurgood Marshall: We're talking about harmless error?
Mathew Robins: Yes sir and I'm saying that this is not such a substantial right that he has been harmed.
Thurgood Marshall: You don't think the prolonged trial with the possibility he can be electrocuted is not a right that entitled to the full protection of this Court, just the right not to be charged with it, certainly not to be tried with that hanging over your ear?
Mathew Robins: That is and I have admitted and I admit now that would seem to be the rule where that case decided today, but I'm saying there are other elements.
Potter Stewart: Supposing you -- supposing you lose this case, can you reindict this man for manslaughter?
Mathew Robins: I don't see any reason -- I do not know Your Honor. I don't believe -- I don't see any reason --
Hugo L. Black: If you reindicted him, there wouldn't be any double jeopardy problem?
Mathew Robins: No sir, this would be the standard that you may retry a man for conviction set aside.
Hugo L. Black: Well, what I'm asking you now, supposing you lose this case, can you reindict him now for manslaughter and try him again?
Mathew Robins: I would believe so, yes sir.
Hugo L. Black: Well, is there -- that's what I asked you. Mr. Wallace, with statute limitations around.
Mathew Robins: Your Honor, I have not considered that, I don't know.
Hugo L. Black: Well, it seems to me that's the essence of your -- and that's the essence of your -- of your harmless error point?
Mathew Robins: Well, --
Hugo L. Black: If you can try him again now even though he has been put in jeopardy as Justice Marshall says you can try him again for the manslaughter charge and give him a sentence. Now, if he's convicted not longer than the original sentence, isn't that --
Mathew Robins: It might be --
Hugo L. Black: -- your harmless error claim?
Warren E. Burger: It would be better to differ Mr. Wallace --
Hugo L. Black: Isn't that your harmless error claim yet?
Mathew Robins: I have not considered that but however, that is a point that I wish I had considered and presented to the Court. That is a point well taken. I --
Hugo L. Black: You can tell me whether the -- whether the --
Mathew Robins: Statute of limitation --
Hugo L. Black: --statute is run?
Mathew Robins: No sir I'm sorry.
Hugo L. Black: Are your witnesses still available?
Mathew Robins: I do not know that sir.
Hugo L. Black: Oh!
Mathew Robins: Of course we have taken this case --
Hugo L. Black: As far as I'm concerned, I wish you'd let the Court know whether the statute is run on this manslaughter charge.
Mathew Robins: Well, he was tried the second time -- I do not know Your Honor. I could -- I don't know that. I had --
Warren E. Burger: Well, won't you let us know?
Mathew Robins: Yes sir, certainly.
Warren E. Burger: When you address yourself to that question, will you also indicate whether there are any legal barriers to being tried under the existing indictment provided the Court does not submit any charge higher than voluntary manslaughter to the jury? Mr. Wallace seemed to concede that that would have satisfied his position at the time of the second trial. I do not take that as a concession that he would concede it now necessarily, but if you will address yourself to that point also in your memorandum?
Mathew Robins: Yes sir. On passing then, just in my final argument on this question, I submitted that that because of the fact he did get a lesser sentence. That there was harmless error and I now pass to the question of the retroactivity of Benton. Extensively, if this Court should decide that Benton is not applicable to the facts in this case and of course this would not perhaps be a proper case to decide retroactivity of Benton. But nevertheless, this Court has for some time now specially since 1965 in the case of Linkletter versus Walker set out certain criteria which it has tried to follow in determining whether case should be retroactive. It has considered the prior history of the rule. It has considered the purpose and effect of the new rule and it has considered whether or not the application of the new rule would further or retard its operation. And throughout these cases where the prospective -- prospectivity of a case has been in question, it has applied these rules. I would submit that insofar as Benton versus Maryland that the prior history of the double jeopardy provision of the Fifth Amendment has shown that this Court has repeatedly held that it was not applicable to the state and upon given the choice, since the Green case in 1957 or 1959, whenever it was, when given a choice, this Court has on one occasion said the double jeopardy provision of the Fifth Amendment is not applicable to the states and on another occasion, Cichos versus Indiana in a factual situation identical I submit to ours, this Court did not pass on the question, however, it did say in dictum that it was -- that the double jeopardy provision was not applicable to the states.
Potter Stewart: How about the Ashe against Swenson?
Mathew Robins: Well, I've studied --
Potter Stewart: And Pearce against North Carolina?
Mathew Robins: Well, in Pearce if Your Honor please. The question that was specifically posed in Pearce and the question which was phrased in the first paragraph of that decision was weather or not when at the behest of the defendant, a criminal conviction has been set aside and a new trial order, to what extent does the constitution limit the imposition of a harsher sentence. And then further in the opinion this Court said that the double jeopardy provision is to protect three things, protection against repeated prosecutions after an acquittal, protection after a conviction and protection against the imposition of repeated punishments. But in Pearce, the only question posed to the Court was the question of the sentence. It was not really confronted with the question that we have here and I would urge this Court to consider Pearce not as a blanket determination that Benton versus Maryland should be retroactive but that Pearce decided only that insofar as the imposition of harsher sentences are concerned that it should be made retroactive. And I'm further -- I emphasize this position because that is a correction that can be made with the minimum of effort by the states. It need only do it administrative -- administratively and need not have subsequent trials as would be required by retroactive application of Benton versus Maryland. So, though the footnote --
Hugo L. Black: But in the two cases you said where you had -- why since Green said that the double jeopardy provision does not apply to this case?
Mathew Robins: Particularly one -- one Your Honor was Barktus versus Illinois which was in the late 50s, 1959, the earlier one was Hoag versus New Jersey, though that's not a holding of the Court, it is dictum, that's a 1958 decision. Also dictum I suppose --
Hugo L. Black: In the Barktus case, there was a -- Where is it?
Mathew Robins: Barktus versus Illinois.
Hugo L. Black: What page of the USC --
Mathew Robins: Oh I'm sorry Your Honor, I don't have the citation in front of me. It's a 1959 case. The other case was Cichos versus Indiana, the very -- nearly the last paragraph in that case. That case did suggest that the double jeopardy provision was not applicable to the states.
Hugo L. Black: How do you spell that?
Mathew Robins: C I C H O S.
Potter Stewart: 359 US 121.
Mathew Robins: So we have here them --
Potter Stewart: Were you going to say something about the -- would you whether Ashe --
Mathew Robins: Oh.
Potter Stewart: -- dealt with this question?
Mathew Robins: Yes sir. Ashe, the facts in Ashe would seem to come within the ambit of the first of the three propositions set out in Pearce, that is whether Benton is applicable to the protection to the defendant against subsequent convict -- subsequent trials after an acquittal, that would seem to be the suggestion in Ashe, however, Ashe I respectfully submit, there's no more than to incorporate collateral estoppel into the double jeopardy provision where it had not been incorporated earlier and in fact it had been rejected in Hoag versus New Jersey.
Potter Stewart: The opinion by footnote or otherwise, didn't it not say something explicit in the question of retroactivity?
Mathew Robins: Yes sir, it is quite explicit, it is.
Potter Stewart: How did it lead?
Mathew Robins: There can be no doubt of the retroactivity of the Court's decision in Benton versus Maryland, and North Carolina versus Pearce decided the same day as Benton, the Court unanimously accorded fully retroactive effect to the Benton doctrine. I submit to the Court however there's that -- if this --
Potter Stewart: Are you aware of the word there is fully, is it? Fully retroactive?
Mathew Robins: Yes sir. It's -- yes sir, it says fully retroactive, but this is -- if we are going to say that it is applicable to the other elements of the three, then it is a departure from what this Court has done in earlier cases. Linkletter versus Walker, Stovall versus Denno, Jenkins versus Delaware, these continuing series of cases where this Court has considered the criteria setout in Linkletter versus Walker, prior history, purpose and effect.
Potter Stewart: Difficulty is I think that General Robins as my brother Brennan has implied in his question, Ashe could not have been decided the way it was. It couldn't -- the judgment couldn't have been reached, it was reached in Ashe without holding that the doctrine of Benton against Maryland was fully retroactive, isn't that correct?
Mathew Robins: Yes sir that is correct but --
Potter Stewart: So how did the -- how did they cross --
Mathew Robins: -- however --
Potter Stewart: -- that bridge for better or for worse.
Mathew Robins: That's a difficult bridge to cross Your Honor.
Potter Stewart: So haven't we done it difficult or not?
Mathew Robins: Well, it's hard for me to see how this Court has done it and I've tried to study the opinion. For instance Benton versus -- the Benton versus Maryland case is only mentioned one time that there's no -- and Pearce, there's no reference in Pearce to the other elements, the three that this Court set out. There's no reference to the other two elements and the effect of Benton. The whole case turns upon imposition of harsher sentences and then all of a sudden we have this decision in Pearce which if it is to be determined that it is retro making Benton retroactive is a complete departure from earlier cases where this Court has considered the effect, reliance, the Desist case is I think is a good opinion where this Court has considered what all of this will do to the state.
Potter Stewart: Well, that involves the Fourth Amendment where the test is whether or not there's the searching officers act to after the brief --
Mathew Robins: It's a -- yes sir.
Potter Stewart: And part of reason is relying on the existing on the Court decision of that but haven't we as I say rightly or wrongly, for better or for worse haven't -- hasn't the Court whether to approve or not and hasn't the Court crossed that bridge. If not in Pearce then at least in Ashe?
Mathew Robins: Yes sir.
Potter Stewart: How could Ashe possibly have been decided the way it was without holding the doctrine of Benton against Maryland retroactive? Ashe came out --
Mathew Robins: Well, --
Potter Stewart: -- remember on collateral --
Mathew Robins: Yes sir.
Potter Stewart: On the collateral proceedings and federal habeas corpus?
Mathew Robins: This Court has crossed that bridge. I was seeking to urge this Court that --
Potter Stewart: To cross, to go back to --
Mathew Robins: -- to consider it in --
Potter Stewart: -- cross the line now?
Mathew Robins: --a different perspective than it had because of the departure from its earlier decisions in determining retroactivity. I was urging this Court because of past history in this Court that Pearce is a complete departure and that the -- and because of the elements set out in Linkletter versus walker, the states had no way of knowing that this Court would resolve Benton the way it did. In fact the states were encouraged to believe that it would hold differently.
Potter Stewart: Every state has -- has guarantee against double jeopardy usually in the state constitution.
Mathew Robins: Yes sir.
Potter Stewart: I think one or two or three by either statute or Court decision and while they're not exactly coincidental with the guarantee as the federal constitution, they're so close that the disruption of state procedures would be minimal, wouldn't it?
Mathew Robins: Yes sir. All the states do have them.
Potter Stewart: Yes.
Mathew Robins: About 18 or 20 of the states do in fact provide for the retrial under higher charge.
Potter Stewart: Right.
Mathew Robins: And Georgia of Course is one of those and that's why we have this problem then.
Hugo L. Black: But aren't there quite a few states that have either by statute or a Court decision said that where you find a guilty plea of a lesser offense is actually an acquittal of the other?
Mathew Robins: Yes sir, yes sir.
Hugo L. Black: The majority of the state?
Mathew Robins: Yes sir. Only 18 or 20 of the states have held the view that Georgia has it. You may retry on the higher offense.
Hugo L. Black: So if Georgia could have done it in this case?
Mathew Robins: Well, yes sir but I --
Hugo L. Black: In this case?
Mathew Robins: Yes sir Your Honor but please remember that this Court in an identical factual situation in Brantley versus Georgia, a 1910 case said it didn't violate the constitution of the United States and an identical factual situation.
Hugo L. Black: Am I to understand that Benton was argued to the Court in Georgia?
Mathew Robins: No -- well, the proposition of double jeopardy --
Hugo L. Black: Benton itself?
Mathew Robins: No Your Honor, the case before the Court now was before the Benton decision.
Hugo L. Black: But where did --
Mathew Robins: Brantley was argued.
Hugo L. Black: Brantley? That's right, that's right. You're a --
Mathew Robins: So I'm saying that the State of Georgia and the other states too have had a determination by this Court at least since 1910 and certainly since 1930 whatever it was in the Palko decision that the Fifth Amendment was not applicable to the states, and even more recently since 1959 in Barktus and 1966 in Cichos and all of a sudden now the states have going to have to go back and retry these people and this will be a terrible burden on the states because some of these people have been in jail for quite a long time. It will be necessary to get the witnesses and revive their memories and this will be a burden on the administration of justice.
Potter Stewart: As I understand it, Georgia under 4208 Georgia that that at the first trial he was not in fact acquitted of murder, is that correct?
Mathew Robins: As a matter of fact he was not, he was silent on the fact that --
Potter Stewart: That is the law in Georgia, that he was not acquitted?
Mathew Robins: Yes sir.
Potter Stewart: Unlike the law as in the district of Columbia as construed by this Court in Green, is that you point so that --
Mathew Robins: No, Green -- Green wasn't implied. Well, this Court in Columbia, the jury was silent in the Green case as it was in this case.
Potter Stewart: Yes I understand.
Mathew Robins: But this Court has determined that that wasn't implied acquittal.
Potter Stewart: In the District of Columbia?
Mathew Robins: In the District of Columbia. In the state of Georgia there was no implied acquittal because the law provided that he could be retried which must reject the implied acquittal doctrine. In closing, if this Court please, I ask this Court to consider the criteria set out in Linkletter in the Linkletter versus Walker case as carried forward in many subsequent cases deciding retroactivity. I ask this Court to not apply Benton retroactively and consider the burden upon the administration of justice and the reliance upon the states that it on the decisions of this Court prior.
Warren E. Burger: General Robins, the Courts -- the Court is not unmindful of the burdens that these things can impose on the state sometimes but when you consider the language of the constitution, is it that he shall not twice be placed in jeopardy, that must mean he shall not twice be put at the risk of this conviction, is that not what it must mean?
Mathew Robins: Yes sir. It must mean that and I say where the facts like as they were in Green where the man received a death sentence, then this case would -- would have to fall.
Warren E. Burger: Well, then let's put ourselves back in the posture that he was at the end of the first trial and the verdict and it was relatively a much less sentence than he might have gotten?
Mathew Robins: Yes sir.
Warren E. Burger: Now then he's put by the State of Georgia at risk again and the risk is not the risk of being found guilty of an offense that would give him 10 to 15 years but he is again put at risk of the death sentence, isn't he?
Mathew Robins: Yes sir.
Warren E. Burger: At least he thinks so even if his lawyers may tell him about the Green case and about the Benton case and the other cases?
Mathew Robins: And the --
Warren E. Burger: Now, isn't that kind of a -- isn't that kind of an apprehension, the fear, the risk, the kind of thing that's embraced in the term jeopardy under one thing?
Mathew Robins: Yes sir, and at that time the Court should have probably passed upon a proper motion raising double jeopardy. That would have --
Warren E. Burger: But the Court didn't and that's why we're here?
Mathew Robins: That's right, yes sir, but I say all this was vitiated when the jury rejected that apprehension that he was placed under, and said do not concern yourself with that, you are being convicted of voluntary manslaughter and we are sorry for the apprehension but you have not been convicted of that murder charge.
Warren E. Burger: But in the meantime, he and if he has a family were subject to that apprehension, not fear but jeopardy, were they not?
Mathew Robins: Yes sir. I cannot deny that --
Warren E. Burger: You can't turn the clock back on then?
Mathew Robins: No sir, I cannot do that. Thank you.
Warren E. Burger: Thank you. Mr. Wallace.
Allyn M. Wallace: Mr. Chief Justice and may it please the Court. First of all, I take issue was that like to me. First of all, I take issue with my brother about the pardoning of one in Georgia. At the time Price was tried the second time, that was not the rule. The pardon board as it now stands, parole board if they see fit can grant a pardon the second day or the first day after he had been incarcerated, if I understand the rule correctly. Now, I've always felt that the law had two basic purposes. One was to protect society, and the other was to correct the wrong doing. Now, Justice Marshall, I believe it was the other Justice that asked me what harm had been done and I want to call the Court's attention to a dissenting opinion in the Cichos case and it was used by Justice Marshall in the case of a Second Circuit of Appeals which was the case out of the State of New York, and this is the language of the Court. The second time gave the prosecution the advantage of offering the jury a choice. A situation which is out to induce a doubtful jury to find the defendant guilty of the lesser serious offense rather than to continue debate as to his innocence. This doctrine was also stated and it refers to Chief Justice Marshall's case. Now, that's my position in this matter and that's where I say the error or the harm was committed. It's as the Court brought out is not that he was tried the second time, He was subjected to double jeopardy which the constitution says no, and if it says anything at all, that's what it says. And I think it would be --
Hugo L. Black: May I ask you this question?
Allyn M. Wallace: Yes.
Hugo L. Black: When you talk of the term the congress there, let me put in terms of remedies. Supposing you win, what our -- what should be the consequence, could the state be (Inaudible) after knowing that charging only manslaughter?
Allyn M. Wallace: If Your Honor pleases, if I understand the law correctly of Georgia, the remitted duo has never gone down from the Supreme Court of Georgia or the Court of Appeals of Georgia to the Trial Court and is still in the presence of Supreme Court of Georgia opinion the outcome of this case here in this honorable body.
Hugo L. Black: What should our --
Allyn M. Wallace: Now, they can be -- he can be reindicted.
Hugo L. Black: He what?
Allyn M. Wallace: He can be reindicted for manslaughter.
Hugo L. Black: Should our mandate prevented him from that?
Allyn M. Wallace: No sir, I can't see that.
Hugo L. Black: Shouldn't do that too.
Allyn M. Wallace: I don't think so, no. I think it should be remanded back to the state Courts with anything to be how -- if this Court should find that he had been subjected to double jeopardy, but not inconsistent with that decision. Now, that's my position. Now, that's where I say the harm has been done.
Warren E. Burger: Would it be appropriate in your judgment and I want you to consider this question before you answer because perhaps you wouldn't want to answer it today. Would it be appropriate to -- if the Court found for you on the basic issue of double jeopardy to remand the case giving Georgia the alternative of reindicting him if their law permits or trying him under the existing indictment but with a limitation that no charge higher than voluntary manslaughter could be submitted?
Allyn M. Wallace: If I may go outside of the record if Your Honor pleases, that issue came up in the argument in the Court when I argued the plea of double jeopardy. That the solicitor said that he is indicted for murder and that's all I can try him for. Now, he said I'd have to go back and give a new indictment for manslaughter in order to do it and that's when the judge picked up his gavel and said motion overruled. Now, I still contend that he can be retried for manslaughter on the proper indictment and the statute has not run.
Hugo L. Black: Mr. Wallace.
Allyn M. Wallace: Yes.
Hugo L. Black: Under the laws of Georgia, can you proceed by information?
Allyn M. Wallace: Yes.
Hugo L. Black: Rather than indictment?
Allyn M. Wallace: No, no, not in a felony, no sir, no sir cannot. Now, in misdemeanor cases you can. Now --
Hugo L. Black: What's the minimum sentence for manslaughter?
Allyn M. Wallace: One to 20 years I believe.
Hugo L. Black: And he got how many?
Allyn M. Wallace: 10 to 15.
Hugo L. Black: The last time?
Allyn M. Wallace: The last time 10 sir, the first time 10 to 15.
Potter Stewart: And nowadays the jury has to fix the -- or fix his --
Allyn M. Wallace: Trick the jury at that time, yes sir.
Potter Stewart: -- that and number of year?
Allyn M. Wallace: The jury fixed the sentence.
Potter Stewart: No longer can the jury say 10 to 15 as I understand it, is that correct?
Allyn M. Wallace: They can come in with a recommendation if it's -- if it's up without recommendation then the Court has no other alternative but to inflict the death penalty.
Potter Stewart: Not for manslaughter?
Allyn M. Wallace: Not for manslaughter --
Potter Stewart: No.
Allyn M. Wallace: -- if they fix it, jury fixes it.
Potter Stewart: And what if the jury --
Allyn M. Wallace: The jury is charged from black years to black years.
Potter Stewart: Right.
Allyn M. Wallace: What makes a minimum of a year, maximum of 10 years -- 20 years?
Potter Stewart: But must may the jury come in and say we find him guilty and we recommend a sentence from one to 20 years?
Allyn M. Wallace: Yes sir, yes sir.
Potter Stewart: They did it the first trial from 10 to 15 years?
Allyn M. Wallace: One to 10 to 15, yes.
Potter Stewart: Second trial they fixed it at 10 years?
Allyn M. Wallace: That 10 years.
Potter Stewart: I had understood in the course of oral argument here that the law was changed in the interim and that a jury must now fix it a definite number of years, perhaps I misunderstood, did I?
Allyn M. Wallace: Yes.
Potter Stewart: I misunderstood that?
Allyn M. Wallace: I think you do, yes.
Potter Stewart: But in the second case in any event the jury did fix a definite number of year --
Allyn M. Wallace: They did sir.
Potter Stewart: In the first conviction they did not?
Allyn M. Wallace: That's -- except within a minimum of 10 to 15 years.
Potter Stewart: 10 to 15.
Allyn M. Wallace: Now, to the question of retroactivity. My good friend here has called the Court's attention to the Brantley case and I've set this out in my brief and I'm sure this honorable body has read that brief. That was a 1910 decision. The feet have been cut out from under that case. Not only that case but other cases have been set aside, the poker doctrine has gone. The twining doctrine case is gone. The 5202 case, all of those decisions of this honorable body have been cut away. We are living in the year of 1970, not 1910. There has been many decisions recently in this Court that have been or have upturn, overturned at least all the established rules and principles that have long since been gone and I cannot go along with my brother on this good -- on this Brantley case which said, if a man voluntarily seeks a new trial and obtains it, then he is barred from pleading double jeopardy, that's not the law now. Now, if the Benton case means anything, it means that it would be unfair certainly discriminatory to give new trials for unconstitutional convictions when others are kept in prison without any hope or any reward whatsoever, simply because it would cost the state maybe a little money or a little effort to retry this on individual. Later, it is best to show up and sweep, I don't care if it's a man or beast and to incarcerate a man in jail and not give him the privilege of what you've given someone else would certainly be in my opinion unjust and certainly a rape of justice if I may use that phrase. Now, as I've said in my brief, I'm not too concerned about it. I think the Brantley and the Benton case said to know, you have violated the law, you have gone beyond you bounds in convicting this man or placing him in jeopardy twice now corrected. If the Green and the case from the Second Court of Appeals means anything at all, it means that all of the states, if you have violated the law and you haven't given a man his constitutional rights, or he's been denied that right, then I think then Benton case says retry him regardless of what the consequences are and that's the way I feel about it. Now, I would like to --
Hugo L. Black: Will you commit them on --
Allyn M. Wallace: Sir?
Hugo L. Black: Would you have state again what you considered to be harm that he has suffered being tried on this indictment instead of one simply for manslaughter?
Allyn M. Wallace: Mr. Justice Black, I feel that had he not been tried for murder the second time as was I believe you wrote a dissenting opinion in the Cichos case and this is your language sir. “By trying petitioner the second time for murder, “now, Mr. Justice Marshall adopted that in his decision, “by trying petitioner the second time for murder, it gave the prosecution, the state an unfair advantage of offering the jury a choice, a situation that was apt to induce a doubtful jury to find the petitioner guilty of a less offense rather than find him not guilty or acquittal or to even to continue their deliberations or debate as to his innocence.” Now, my position is if this man had not been tried for murder, I feel that this jury, this is a small county, its population is about 15000.
Hugo L. Black: What's the counties here?
Allyn M. Wallace: Effingham county Springfield Georgia, and I feel that --
Hugo L. Black: And where is it, below Savannah?
Allyn M. Wallace: Its about 30 miles out of Savannah, on highway 21. And I feel that had this man been tried for manslaughter, the jury would have been more inclined and probably considered longer his innocence rather than to find him guilty of some lesser offense than murder when he was tried for murder the second time. Now, --
Hugo L. Black: The substance you were saying and where there was a top match to which present can be affirmed, those on then that a jury might have some inclinations to compromise rather --
Allyn M. Wallace: Yes, it might even acquitted him and this case is -- well, I can't go outside and recommend. But --
Hugo L. Black: The record doesn't show us much about what kind of case it was?
Allyn M. Wallace: Well, that's true and as I mentioned a moment ago, I personally paid for that record, I'm without Pearce. I put a lot of time and effort in this case. I'm thoroughly convinced that this man is entitled to another trial on voluntary manslaughter and as I've said a moment ago, the trial judge in now deceased, that tried both cases. The Solicitor General has retired from office and I have some doubt in my mind that this case even though you referred back as I suggested will never be tried again, and now that's the way I feel about it. Now, I'd like to for the last closing moments refer to the Ashe case versus Swenson, the warden and also Waller versus Florida case. And the Court said and that was on April of this year that these two decisions came down, this is not last year, as five years ago or back on in 1910 and this is very plain. There can be no doubt of the retroactivity of the Court's decision in Benton versus Maryland, that's ahead new. In North Carolina versus Pearce 395 US 711 decided the same day as Benton, the Court unanimously -- unanimously the Court had (fully retroactivity) effect of the Benton doctrine. And they went on and said that any case as I interpret in the Waller case that any case that might come before this honorable body that might arise or fall in the end it -- of the Ashe case and the Waller case, that is within the bounds or any limits for this one issue are then these two cases would apply. Had no worn again the Waller case had and this was justice Brennan if I believe I'm not supposed to refer specifically to a justice but if Justice Brennan will pardon me. I adhere to the Courts ruling in Ashe versus Swenson that our decision in Benton versus Maryland holding the double jeopardy clause of the Fifth Amendment applicable to the states in “fully retroactive.” And they again referred to the North Carolina versus Pearce 395, I think that is a crux of my case. I think the Benton case is retroactive in any case it might fall within its bounds and within the ambit of that case and I say that this Price case is one of those cases, and I'm asking this Court in all fairness to give this man the opportunity and as I've said I doubt and I have very serious doubt that this man will ever be tried again. I think even -- so wind it up because as I said I can't bring out anything outside the record, it was unfortunate that I couldn't bring a whole record because it was expensive and I've spent enough time and effort, this is my second day in Washington on this case without Pearce, that's how interested I'm in this case and this man getting what I think is justice. I never take a case although like Pearce and that's why I'm here and I'm asking this honorable body to please consider my brief and what I have said here today, and grant this man another opportunity because he is entitled to it as I see though and I thank you all so much for listening to me and it had been a privilege to be have been here, this be my first time. Thank you.
Warren E. Burger: Thank you Mr. Wallace, thank you for your submission. Thank you Mr. Robins for your submission. The case is submitted.