Earl Warren: Number 158, Willard Carnley, Petitioner, versus H.G.Cochran, Junior, Director of the Division of Corrections. Mr. Ward.
Harold A. Ward, III: Mr. Chief Justice, before going in to my argument on this case, I would like to move the Court, if the Court please, that counsel for the respondent, James G. Mahorner, Assistant Attorney General of the State of Florida, be permitted to argue this course, pro hac vice.
Earl Warren: We're very happy to grant your motion.
Harold A. Ward, III: Thank you. May the Court please. This is a habeas corpus proceeding which was instituted by the petitioner in the Florida Supreme Court. It was instituted to test the legality of the petitioner's detention by the State of Florida. The petitioner was convicted on two counts along with his wife who is also charged with two counts of incest and so-called fondling or lewd and lascivious behavior and trial took place on September 19th, 1958. It was a trial before a jury. Petitioner was not aided by counsel in the course of his trial. His wife is not a party to the proceedings in this Court, thus, I will deal only with the allegation that's set forth concerning the petitioner. Summarizing briefly, the allegations of the petition for a writ of habeas corpus filed in the Florida Court were as follows. First, the petitioner is being illegally restrained by the State contrary both to the Florida Declaration of Rights and to the Fourteenth Amendment of United States Constitution. Second, the petitioner was arrested on November 5th, 1957. He was held until September 8th, 1958 when he was tried before a jury on September 19th, 1958, convicted and sentenced to a term of from six months to 20 years. Petition alleged that the petitioner was completely without education and “cannot recount the ABCs” that he “did not posses the most elementary rudiments of criminal procedure”. He was held in solitary confinement so he alleged for five months. He was not advised of his right to arraignment without unnecessary delay and he was held without a charge against him from November 5th, 1957 to August 11th, 1958. He also alleged that he requested lie detector test that he did request defense counsel to assist him in his trial that he protested his innocence and his inability to conduct to defense, and that when he attempted to cross-examine the prosecuting witness, he was ordered to sit down. He also requested that he -- he also alleged that he requested blood test and that no medical doctor testified at the trial and further prosecution waited until after the birth of the prosecuting witness' child to fix the date with the alleged defense occurred. Finally, he made a legal argument that the two crimes of fondling and incest cannot coexist under the Florida law and he prayed for issuance of a writ of habeas corpus. Florida Supreme Court issued such a writ referred to in this Court's recent opinion on McNeal versus Culver I believe is a provisional writ on June 16th, 1960 requiring the respondent to make a proper return to the petitioner's petition. Summarizing again, the allegations of the return to the writ of habeas corpus, they were as follows. First, the respondent held petitioner pursuant to a commitment predicated on a judgment and cent -- centered by the Florida trial court on September 19th, 1958 after a jury verdict against the petitioner on both counts. Second, the petitioner was arrested on November 5th, 1957 on a warrant issued by the county judge, which was predicated on an affidavit charging the crimes of rape and fondling allegedly occurring on October 31st, 1957. On August 8th, 1958, respondent alleged the grand jury returned an indictment against the petitioner charging the crimes of incest and fondling allegedly occurring on July 10th, 1957. And the prosecuting attorneys subsequently filed an information based on the indictment which is the document upon which petitioner was tried on September 19th. The respondent asserted that -- in fact the petitioner waived the jury trial but nonetheless, the court required the submission of the issues to a jury. Respondent denied that petitioner was totally unable to defend himself. He denied that defense counsel was requested. He denied that the court ordered the petitioner to sit down. And he denied that lie detector and blood test were requested by the petitioner. He affirmatively alleged that petitioner actively participated in the trial, and was carefully instructed by the trial court concerning both his state and his federal constitutional rights. The respondent attached a transcript of the trial proceedings to the return along with certain other documents, the information, the judgment in sentence, the commitment, the affidavit upon which the original warrant was predicated, the warrant and the indictment of the grand jury. The respondent concluded by denying all allegations of the petition that were not expressly admitted or dealt with in the return. Petitioner then filed a return to the respondent's return in which he asserted that the transcript attached to the respondent's return affirmatively showed that no counsel took place -- were -- was present at the trial. Also, that the record was silent with respect to petitioner's alleged request for the assistance of counsel, his protestation of innocence and his request for a lie detector test. The petitioner also alleged in his return that the record showed, “Two proficient prosecutors were arrayed against these indigent and uneducated defendants.” He concluded by stating that the record reflected the ignorance in the total inability of the petitioner to conduct any defense and further that it showed no affirmative evidence of -- of his guilt. The Florida Supreme Court in an opinion, which it rendered on September 23rd, 1960, which is set forth at the back of the printed record in this Court, discharged the writ of habeas corpus. It granted petitioner no hearing to establish the truth of his charges, rather, it examined the record before it, the petition -- the petitioner's return and the documents attached to the respondent's return. The court noted in its opinion that the law of Florida does not require appointment of counsel for indigent defendants except in capital cases citing Section 909.21 of the Florida statutes. It also stated that wherever, our record shows that a defendant either has no counsel or fails to show whether or not he had counsel, it will be presumed that the defendant waived counsel. It recited that while the evidence in the record showed conclusively, and this was the Florida Supreme Court talking, “Conclusively, the petitioner was illiterate. There was no showing that the petitioner suffered from lack of intelligence”, concluded that the evidence was ample to sustain the charge against petitioner and discharge the writ. Petitioner, thereafter, filed a motion on December 22nd, 1960 for leave to file a petition for writ of habeas corpus in this Court, and this Court treating the papers filed as a petition for a writ of certiorari granted the petition on June 19th, 1960. In summary, I think it's fair to say that following facts or -- or undisputed both from the petition and from the return in the documents attached to the return from the record. First of all, the petitioner was in fact arrested on November 5th, 1957, second that he was thereafter held until his trial on September 19th, 1958 that the information which was filed by the prosecuting attorney after the indictment by the grand jury was the basis for the prosecution. He was not tried on the grand jury's charges. And I think it's also clear that counsel was not present, and it's not disputed, the counsel was not present at any stage of the trial proceedings. The record is silent completely with respect to whether or not petitioner requested the assistance of counsel. It's likewise silent as to any advice by the Court to petitioner of -- of a right to counsel either counsel of his own choosing or counsel appointed by the State. The verbatim trans -- transcript of the proceedings, as the Court will note from the record, takes -- starts at a point when the jury has already been selected in the court, it is instructing the petitioner that he has the right to make an opening statement to that jury and there's nothing in the record about the proceedings prior to that time either at the trial. There's nothing in the record with respect to an arraignment or anything of that sort when petitioner might have been advised of a right to counsel. So I think we -- we'll have to conclude that the record is silent on that point. The respondent in -- in his return to petitioner's writ does not allege any waiver by petitioner of the right to counsel. That point was never presented as a factual matter to the support of the Supreme Court though the Florida Supreme Court did refer to the presumption of waiver in its opinion. And the respondent here in its brief does suggest that in fact, this presumption of waiver should control. Finally, I think there isn't any question that petitioner is in fact and has established his illiteracy. The Florida Supreme Court said on its examination of the record that there is no question that petitioner is illiterate. Without going into detail review of the numerous opinions of this Court, culminating, I -- I noticed yesterday in your Chewning opinion concerning the denial of -- of due process, denial of Fourteenth Amendment guarantees by state criminal proceedings under circumstances such that the trial cannot be said to meet the test of fundamental fairness required by Betts versus Brady. I would like to -- to call to the Court's attention the -- the more or less clear, I think, proposition that among the circumstances that must be considered following the Betts versus Brady rule in determining whether or not fundamental fairness existed at any trial in state court proceedings, among those circumstances are necessarily the education, the mental capacity, the ability of the defendant to defend himself without the assistance of counsel at his trial. I think also, it's -- it's completely clear, at this point as emphasized in the Chewning opinion yesterday, that the complexity of the issues that either are involved or that could have been involved in the trial are also of importance in all of the cases that I'll just mention briefly, McNeal versus Culver, and incidentally quite a few of these come from Florida courts, Hudson versus North Carolina, Cash versus Culver, Moore versus Michigan, Herman versus Claudy, Gibbs versus Burke, Wade versus Mayo, Uveges versus Pennsylvania, Massey versus Moore. There -- there are others cited in the brief. And all of these cases, this Court has emphasized the importance of the -- the ability of the petitioner to defend himself in the phase of complex legal charges for his educational ability, his -- his educational background, his ability to defend himself, his ability, as in this case, to read or write to understand the nature of the charges against him are involved. Petitioner's basic argument is that his -- the circumstances of his conviction clearly were sufficient to bring back conviction within the rule of these cases, that he was in his trial denied the fairness required by the Fourteenth Amendment to the Constitution.
Potter Stewart: This is a jury trial, but before a jury of six, was that right?
Harold A. Ward, III: Yes, Your Honor, our Florida procedure and other than capital cases provides for a jury of six, both civil and criminal cases other than capital.
Potter Stewart: Unanimous verdict to acquire the six?
Harold A. Ward, III: Yes, in a criminal case and in most civil cases. It was a --
Speaker: You're --
Harold A. Ward, III: Excuse me.
Speaker: You're asking (Inaudible) the rule of Betts against Brady (Inaudible)
Harold A. Ward, III: No, Your Honor, I don't. I think the petitioner has clearly established circumstances in his petition for writ of habeas corpus that would bring his case within the rule of Betts versus Brady. I do argue, however, that if this Court should conclude and -- and I don't believe that it can on the basis of his allegation, but if the Court should conclude that the circumstances here were not sufficient to bring the case within the Betts versus Brady rule, then the Court should reexamine that rule because of the cases that have been decided since that time, and along the line suggested in the concurring opinion in McNeal versus Culver in last term. And with the Court's permission after I examined these circumstances, I will go into that. I don't think it's necessary to reach that if the case is dealt with on the Betts' theory and I think it can be but at the same time, if there should be a feeling that in fact these circumstances are not sufficient --
Speaker: But you just --
Harold A. Ward, III: -- then --
Speaker: -- suggest -- I beg your pardon.
Harold A. Ward, III: Excuse me. Then we would have to get to --
Felix Frankfurter: But you do suggest that we should dispose of it here finally.
Harold A. Ward, III: Yes, Your Honor, I do.
Felix Frankfurter: Why do you do that?
Harold A. Ward, III: I believe that the record contains sufficient undisputed facts to justify the petitioner to that relief, and I'll --
Felix Frankfurter: Was there a hearing on this habeas corpus?
Harold A. Ward, III: There was no hearing.
Felix Frankfurter: Well, then, we get the fact you mean from the trial?
Harold A. Ward, III: From the record that is attached to the respondent's return and to the allegations of the petition that are admitted by the respondent. If I could summarize those undisputed facts, which I believe the State recognizes --
Felix Frankfurter: Have they admit them or they -- they in fact admit them for purposes of consideration? In fact, the admission is a demurral, it seems, suppose all this is so. I didn't get it.
Harold A. Ward, III: Well, yes, I think the -- then perhaps the admission is on that basis. On the other hand, I -- I don't think there's --
Felix Frankfurter: Then we can't assume that those are facts found.
Harold A. Ward, III: Florida Supreme Court in its opinion tends to treat them as facts found.
Felix Frankfurter: Well --
Harold A. Ward, III: For example, the illiteracy, the Florida Supreme Court says the record shows conclusively that the petitioner is illiterate. But --
Felix Frankfurter: It was not disputed as a fact. I just -- I just want to know what the situation is. If there is any kind of contest that if the State comes up here, and the State is here, the State will say yes. We submit at this Court all these things that Mr. Ward said as so, and not in the realm of legal argument but there is so (Inaudible). But otherwise, if the state court, I'm a little surprised, and the state court simply says, “We don't have to give a hearing” that implies that there is some contest about the question of -- some issues of fact but they -- as I've said, they deal with it as though it's a demurral in all common law declaration.
Harold A. Ward, III: The state court rule --
Felix Frankfurter: Are you going to come with that Mr. Ward?
Harold A. Ward, III: Yes.
Felix Frankfurter: You're trying to come to that or --
Harold A. Ward, III: Well, no, I'd like to deal with it now if I could --
Felix Frankfurter: Alright.
Harold A. Ward, III: -- since the question has come up. I think since the state court opinion is in question, that it really goes a little further than -- than your suggestion, Mr. Justice Frankfurter. It -- it does not even mention the possibility or the probability for the necessity of a hearing anyway. As a matter of fact, it simply examines the question of whether or not these circumstances which it states are fairly well undisputed or which I gathered states our fairly well undisputed, can constitute a basis for the relief which this petitioner request. And without mentioning, in spite of petitioner's statement that this is in the violation of his federal constitutional rights, without even mentioning that, the Florida Supreme Court simply says and I quote, “The law of this State does not require the court to appoint counsel to represent indigent defendants except in cases where they are charged with a capital offense, Section 909.21 Florida statutes, period.” It doesn't go on to the necessity for a hearing and dismisses the entire case on that ground. And I believe, in view of this language and if I could quote again from the last paragraph of the opinion, “An examination of the evidence and the record in this proceeding shows that the trial judge instructed the jury and the petitioners thoroughly, with reference to their constitutional rights. The evidence was ample to establish the charges against them, and there is not the least showing that they were prejudiced in any respect of the trial. To grant a new trial would amount to nothing more than trashing overall (Inaudible)” to reduce discharge. I believe the Florida Supreme Court went a little further than simply addressing itself to the necessity of a hearing or treating this as an effect or demur to the petition. It looked at the record. This is affirmatively indicated by its opinion. It said, “On the basis of this record and the facts that we find in this record, this petitioner is not entitled to release.”
Speaker: (Inaudible)
Harold A. Ward, III: I -- I think there is a possible problem there. I --
Felix Frankfurter: My mind is exposed you know as I read it. It said, was everything you say so and so what?
Harold A. Ward, III: It might have said that. I don't believe that it did in this case. And I believe that the -- the undisputed facts, if I could run through those briefly, are sufficient that while we could have a hearing below, there would be nothing to be accomplished by it. First of all, there's no dispute as to the illiteracy. Secondly, there's no dispute that there was no counsel present at the trial. Third, there's no dispute as to what the charges against the petitioner were. They were charges of incest and lewd behavior with a child. They were certainly inflammatory charges. There isn't a question about it. They're disgusting type of charges and would certainly be expected to disgust any -- any six people chosen for a jury.
Potter Stewart: Who wrote the petition issue on pages 1 to 5?
Harold A. Ward, III: Well, Your Honor, I don't know who wrote it but I suspect that a friend of the petitioners in the courtroom or in the jail wrote it.
Potter Stewart: Because there -- you said there's no question about the illiteracy, it seems to me that implicitly there are maybe some question (Voice Overlap) --
Harold A. Ward, III: I'm relying for that on the opinion of the Florida Supreme Court which said there was no question of his illiteracy.
Potter Stewart: No question about the fact he alleges it.
Harold A. Ward, III: No, the -- the Florida Supreme Court says that there's no question of his illiteracy periods.
Potter Stewart: That's not in the transcript of the trial, the fact that he's illiterate, is it?
Harold A. Ward, III: No, sir, there's no mention of it in the trial.
Potter Stewart: It's simply an allegation in his petition.
Harold A. Ward, III: It's an allegation in his petition and it's a conclusion of the Florida Supreme Court set forth in their opinion. Frankly, I have never met the petitioner. I haven't talked with him. The only correspondents I've had as far as I know has been handled through some friend of his in the penitentiary. There is a reference in his return which is set forth on page 70 of the -- of the record to the fact that the only way he has been able to get a hearing is through the assistance of a friend in jail. I was trying to find the exact language.
Hugo L. Black: If the petitioner is required to await the termination of his case under -- there can be a hearing in the Florida courts, probably return here. What do you say to the question of Betts versus Brady under those circumstances?
Harold A. Ward, III: Well, Your Honor, if -- if that is what this petitioner has faced with, why I believe that it would certainly be desirable and perhaps shouldn't presume to suggest it but incumbent upon this Court to reexamine Betts versus Brady because I think this record clearly does raise the issue that the opinion of Mr. Justice Whittaker in the McNeal versus Culver case specifically express no opinion on that is whether or not in fact Betts versus Brady has been implicitly modified or overruled. And I would strongly urge the Court if that was the conclusion that in fact there are not undisputed facts here sufficient to -- to entitle petitioner to immediate discharge to consider the further argument of whether or --
Felix Frankfurter: Why isn't there any --
Harold A. Ward, III: -- not Betts versus --
Felix Frankfurter: -- why isn't there any circumstances would he get an immediate discharge?
Harold A. Ward, III: But Your Honor, as I --
Felix Frankfurter: (Voice Overlap) --
Harold A. Ward, III: Excuse me. As I read a number of other decisions of this Court, there have been situations in which an immediate discharge of this order.
Felix Frankfurter: Well, maybe so -- maybe so, but --
Harold A. Ward, III: I believe in the Chewning case yesterday (Voice Overlap) --
Felix Frankfurter: Could -- can't (Inaudible) grant a new trial or it found -- find the first judgment vitiated by unconstitutional --
Harold A. Ward, III: Well --
Felix Frankfurter: -- element?
Harold A. Ward, III: --it may -- I suppose there might be some questions of double jeopardy or a --
Felix Frankfurter: Well, double jeopardy if the defendant himself raises the question, anything --
Harold A. Ward, III: I am not attempting to -- to say that that's --
Felix Frankfurter: But wouldn't -- but -- but your suggestion that we should discharge him now pitched out of Florida's power the right to grant a new trial. Is it further (Inaudible) to the other point, whether or not he would be admitted to bail pending the second trial, how can we dispose of all these questions here on that --
Harold A. Ward, III: I don't --
Felix Frankfurter: -- theory?
Harold A. Ward, III: I don't quite follow the argument, Mr. Justice Frankfurter, that we would necessarily -- if this Court where to discharge petitioner deprived Florida of another opportunity to trial regardless of whether this Court should reverse and remand the case for a hearing to establish factual allegations.
Felix Frankfurter: Well, I think if this Court, it's frequently the United States discharges him then you might -- then you really raise the question of -- might really raise the question of double jeopardy. But --
Harold A. Ward, III: Well --
Felix Frankfurter: -- in any event, although we to determine whether he should be let out on bail in the meantime --
Harold A. Ward, III: Well, there's no -- no --
Felix Frankfurter: -- simply because -- because on habeas corpus, the conviction would upset.
Harold A. Ward, III: There's no --
Felix Frankfurter: What do we take --
Harold A. Ward, III: -- question of bail and there's not --
Felix Frankfurter: What do we take --
Harold A. Ward, III: -- likely to be one.
Felix Frankfurter: Well, but if we discharge him, he's out on bail.0 He's out freely, isn't he?
Harold A. Ward, III: Yes, he's out --
Felix Frankfurter: (Voice Overlap) --
Harold A. Ward, III: -- period if you discharge him unless the State decides that they want to try him again --
Felix Frankfurter: Well --
Harold A. Ward, III: -- just as he will be (Voice Overlap).
Felix Frankfurter: But in the meantime, if we discharge him, he's out free, when if this case goes back to Florida, Florida may decide to try him again so far as (Inaudible) raised questions about bailability.
Harold A. Ward, III: Florida make --
Felix Frankfurter: How can we pass some of these things here?
Harold A. Ward, III: The only --
Felix Frankfurter: How do we take all these things out -- out of the control of Florida?
Harold A. Ward, III: The only item that you would be taking out of the control of Florida, Mr. Justice Frankfurter, as far as I can see and I may be missing something here. So as far as I can see, the only thing you're taking out of Florida by reversing this case summarily and discharging the petitioner rather than reversing it for a hearing would be the -- first of all, the time delay that the State would have and the requirement of the petitioner remain actually in the custody of the State until that hearing was over. And second, we -- the requirement that of course petitioner continue to find counsel or find sufficient assistance to -- to present his case de novo in a hearing in Florida.
Felix Frankfurter: Well, then I'd put it to you. I would think they're involved. If this Court discharges him, he gets out of jail, he's free for the time being and therefore, the State has to move to -- to take appropriate steps to get him back. In the meantime, it might not be able to get him back. Bail is, of course, the normal constitutional right.
Harold A. Ward, III: Mr. Justice --
Felix Frankfurter: How do we know (Voice Overlap) --
Harold A. Ward, III: -- Frankfurter I can't imagine the -- the State sitting by if they can -- if they're convinced that they want to try this man again and letting him walk out of the jailhouse without --
Felix Frankfurter: You mean --
Harold A. Ward, III: -- re-arresting him the minute he walks through the door, if they want to that.
Felix Frankfurter: Mr. Ward, you're suggesting the statement until you frustrate the order of this Court?
Harold A. Ward, III: No, sir. They may arrest him on a new charge and try him for any number of --
Felix Frankfurter: I mean all these --
Harold A. Ward, III: -- other terms.
Felix Frankfurter: -- all these suggest entanglements between this Court and -- and state -- (Inaudible) state officials.
Harold A. Ward, III: Well, be it for me to suggest en -- entanglements but I --
Felix Frankfurter: It was necessarily so. I put it to you. You say they'll have somebody out there with a capias as soon as Uncle Sam has opened the jail door.
Harold A. Ward, III: They could.
Felix Frankfurter: They could. And I can see some editorials and some quarters talking about that.
Harold A. Ward, III: Oh, I -- I'm not concerned about the editorial opinion.
Hugo L. Black: Why is that the only alternative? We've had quite a number of cases where we've held that the one reason or another, the -- there was a denial of some constitutional requirement in the trial. And we have reversed the case, held it pending, give the State a certainly length of time, do what it should which in this case would be a new trial. What is it to prevent that?
Felix Frankfurter: There's nothing --
Hugo L. Black: That would be quite different so far as this is concerned, so far as this defendant is concerned and according in his rights if Betts and Brady is wrong. They're quite a difference because that would be a reversal in the State of Florida like other States gives bail. State of Florida could give bail, wouldn't entangle us with it, was it? Anymore that would entangle us after the whole Betts and Brady fails.
Harold A. Ward, III: I think that certainly is another alternative that's open.
Felix Frankfurter: But that's a very different thing from what you've suggested you might want.
Harold A. Ward, III: Yes, sir, it is.
Felix Frankfurter: Of course, I'm agreeable to that if we reverse. That's what we do even as to deportation cases but we don't say that the prisoner is discharged. What we do say is that a right of his has been invaded and we won't issue. We'll do the opposite of discharging him. We leave open ample opportunities for the State on federal cases, a federal procedure to exhibit its authority.
Harold A. Ward, III: I think there are number of cases though, may it please the Court. And I -- I did look into what I could determine from this Court's opinion as to the discharge in --
Felix Frankfurter: (Voice Overlap) quite impressing to the argument, your client states --
Harold A. Ward, III: -- in this matter. There are number of cases in this Court where the opinion has concluded with the simple phrase reversed. Now, I don't know as a practical matter what happens when this occurs. I think in the Chewning case yesterday, this is exactly what this Court did and said in view of those complicated problems that were involved in a multiple offender type statute situation, counsel was -- was necessary in order to -- to keep this petitioner from being deprived of due process of law --
Felix Frankfurter: But you --
Harold A. Ward, III: -- for that reason the case is reversed.
Felix Frankfurter: You know very well, Mr. Ward, that when this Court in state cases does reverse, the mandate goes down and so far as mandate do go down and simply reverse what the state court does leaving it to the state courts to make such disposition as state law requires. This is a very different thing from opening the jail door.
Harold A. Ward, III: Well, I -- I will press the matter further, Your Honor. I think I've probably done more than I should have already. But I think that if I could just summarize the undisputed facts to see what would possibly be left open for a hearing. Now, perhaps what I'm really saying now is not that we should -- that the Court, as you say, open the jail door but that the Court should not infer that it's necessary for the Florida Supreme Court or for a judicial body appointed by it to conduct a full hearing on this matter because there's no dispute according to the Florida Supreme Court itself as to the illiteracy. There's no dispute as to the lack of counsel, there's no dispute to the nature of the issue. The only thing that I can see that there would be a factual argument on or dispute would be the possible issue of waiver. And there was no allegation in the respondent's return that counsel was waived at the trial. The first time that issue has been raised is -- is here and the Florida Supreme Court deals with it only as a presumption of waiver and nothing more. As far as I can see, the only issue that could be going into in a hearing on this petition would be that issue of waiver. I see no reason for this Court to suggest by as it has in some instances in its opinions saying that the cause is remanded at least to give the petitioner a hearing or an opportunity to prove the -- the truth or falsity of the factual allegations that are involved. I see no reason for that type of language in an opinion directing the -- the further proceedings below. I think that I haven't dealt it all yet. Well, I have repeated the illiteracy and -- and so forth. Anything about the complex issues that where either potentially or implicitly or -- or otherwise involved in the petitioner's trial. Again, continuing in an examination of the facts of this case under the Betts versus Brady rule and the rule of the cases establishing, further amplifying that rule. This petitioner, apparently, was convicted under what the Florida Supreme Court in the -- and it was locally called the Florida Child Molester Law, Chapter 801 of the Florida statutes. This particular law has a number of other provisions in it whereas the petitioner or counsel for the petitioner might have raised if he'd have counsel at his trial. I don't believe that it is incumbent that we show here and the respondent's assertion in its brief but we couldn't show here that in fact, the trial judge would have granted any of the rights or procedures involved under that statute. But nonetheless, had counsel been there, he could have made a number of approaches to the court by a way of motion for psychiatric or psychological examination for a commitment for treatment even for suspension of judgment. And the language of the statute clearly spells out the broad authority of the trial judge in the case that falls under the child molester law to suspend the execution of judgment, if in his opinion the petitioner can best be rehabilitated by that method. There's -- there are number of other complications involved to the -- their separate statutes in Florida that make incest a crime, that make fondling a crime. These statutes are all purportedly incorporated by Section 801.02 of the child molester law. At least one case, this incorporation of the statute by another has been held by the Florida Supreme Court to be unconstitutional. I don't know that that would have rendered any distinct advantage to petitioner. I can't tell now what might have happened, had some of these points been raised. But there were clearly points that could have been raised, procedures that could have been requested for this petitioner under Chapter 801, head counsel then present to request them. I think it's clear, too, that if you examine the record, there were only two witnesses against the petitioner and they were two of his children. He was forced with the necessity of cross-examining his own children as the only witnesses against him. He was illiterate, of course, which was a handicap, but was further aggravated by the fact that he -- were members of his own family as sole witnesses against him. An independent lawyer could certainly have done a better job on that or done a job at all if -- if we forget about the fact for the moment that petitioner was illiterate. There isn't any question if you -- if you look at the transcript that the cross-examination of these witnesses was totally inadequate when the petitioner was unable at all to meet the issues that were involved. For example, I -- I think I've set up the total cross-examination I have in my brief of both witnesses on page 14, the entire cross-examination of the prosecuting witness has set forth at the bottom of the page. The question by Mr. Carnley was, “Carol Jean, you say your mother, she went and made arrangements to get the casket for your sister?” "Yes.” "You are right sure now that she did?” “I am sure.” “Well, I will tell the court, my wife was out at Mr. Joe Gayfer's house.” And then the court interrupted and said, “"Wait a minute, sir, you are testifying. You will have a chance to testify when the State rests. Any questions you wish to ask your daughter, you are welcome to do it.” Well, after that the petitioner didn't ask anymore questions. That's the total cross-examination of the prosecuting witness that I have just read. The total cross-examination by the prosecuting witness' wife has set forth on the top of page 15. It's -- it's obvious that the issues involved in the testimony of these witnesses were totally overlooked by the petitioner if they were grasped at all and there was no evidence presented to the jury on it. Incidentally, there is a point, I think, worth mentioning that in somewhat rambling testimony of the petitioner's wife in the short portion of the trial in which either petitioner or his wife was testifying. There were some indication that a lawyer might very well have raised the severe question of prejudice on the part of the prosecuting witnesses. On page 53, for example, in Mrs. Carnley's testimony, she says, "We tried to be firmed with them, but it seemed like the more firm we got these two older kids, they couldn't stand the pressure, so they would, every time that their daddy would get after them or something or other about some of their doings, well, that oldest boy would say, "Well, Daddy, you will sure regret it. I will get even with you one way or the other.” Had there been counsel present why this line of questioning, cross-examination clearly could have been followed? Further and counsel been present why the petitioner might have realized when he took the witness stand on his own behalf, that doing so would sub -- subject him to cross-examination by the prosecution. The State urges that the parties were completely and fully apprised of all of their constitutional rights. We've already noted that there's no evidence from the record that they were apprised of any right to be represented by counsel. It's also clear in the trial itself that they weren't apprised of the fact that if they took the stand themselves, they would be subject to cross-examination. They were told that anything they said could be held as self-incriminatory but they weren't told about the cross-examination nor were they told of their right to make instructions or to request instructions of the judge to be given to the jury. There's no evidence of that. There is absolutely no point in the transcript to the proceedings where either of the -- either the petitioner or his wife made any objection to testimony on the part of either the States' witnesses. In all of these ways, I think it's beyond question that counsel clearly could have been of a great deal of assistance and in fact that without counsel, the petitioners did not have an opportunity to adequately meet the charges against them. In view of the position of the State on -- on possible waiver of this right to counsel is set forth in this -- the brief of the respondent here. I would like to say a word about this waiver issue. The -- as I've said, the return of the respondent in the court below does not allege that the petitioner waived any right to counsel. There's no statement in there. The only statement that could be related to it is the statement that petitioner did not request counsel. For the first time here, there's a suggestion I suppose on the basis of the language of the Florida Supreme Court that in fact there was a presumption applied by that court of waiver which is binding here in which petitioner was under a duty to overcome. Well, I think it's -- it's obvious at the outset and since petitioner didn't have a hearing below when of course he wasn't given any opportunity to overcome the presumption that is applied. But I think even beyond that and this goes again to the question of whether or not there would be anything served as a practical matter by having a hearing on this habeas corpus petition below, is -- is the fact that the presumption of waiver which is the only thing in this record that -- that presents any issue on waiver cannot constitutionally be applied by a state to deny a defendant in his right to fair hearing in the court below. And this Court noted in Johnson versus Zerbst that, of course, that was a federal proceeding but it noted that waiver of fundamental constitutional rights is not something that's to be presumed and -- and again, in a subsequent case of Moore versus Michigan why it was pointed out that waiver is not to be lightly presumed. If a state could apply a conclusive presumption in the absence of a hearing that a defendant waived his right to counsel with no support in the record factually for such a presumption, why it's clear that this Court would, of course, cease to hear any cases of this sort or could cease to hear it because the presumption of waiver could conclusively be applied by the state below. There would be no opportunity for a petitioner to rebut that conclusive presumption. One additional word concerning the ability of the petitioner to defend himself at the trial, the Florida Supreme Court says in its opinion that even illiterate defendants may be intelligent about the common place things of life. As I've stated in my brief, I -- I don't believe that we can conclude that a serious criminal trial carrying a sentence up to 20 years is one of the common place things of life. I cannot believe that the types of issues that were involved here or such that an illiterate defendant regardless of his other abilities would've adequately been able to meet those issues and conduct a defense that could result in a successful -- that would be a successful defense or result in an acquittal. An illiterate defendant cannot examine the indictment. He can't look at the information for among other things. There's no basis for the conclusion. I respectfully submit that in spite of illiteracy, a defendant is able to conduct a defense in a serious criminal trial. Now, turning, if I could, to the question of, “What if this case doesn't come under Betts versus Brady or what if the Court should feel it permissible in this case to reexamine Betts versus Brady?” I would respectfully submit that the Court has already done that in effect in the decision in Griffin versus Illinois and Chandler versus Fretag. When you put those two cases together, I cannot conclude how the Court can -- can say that there is any life left in Betts versus Brady. Now, as I've said, it's not necessary to reach -- reach this issue but if we do reach it, why it's clear that under Chandler versus Fretag, Reynolds versus Cochran, in subsequent cases in this Court, a defendant who can afford his own lawyer has an unquestioned and unqualified right to be heard by that lawyer in state criminal proceedings. There's no -- no qualification on that. It's also clear, I believe now, in view of Griffin versus Illinois that a defendant cannot be denied effective appellate review of his conviction by virtue of his inability to obtain funds to buy a transcript which a state may require as a prerequisite to review of that conviction. If it is a denial of equal protection or due process under the Fourteenth Amendment to deny appellate review equally to those who can or cannot afford transcripts required for that review, how can it be otherwise in that denial of due process to deny effective representation by counsel at the trial itself as between those who can afford counsel and those who cannot? It seems to me that the -- the importance of the trial as opposed to appellate review -- review really makes us a stronger case than -- than the Griffin case. It's long been recognized that a state doesn't have to provide appellate review at all. But it is now clear that if it does, why it must provide it on a basis that is available alike to reach in poor. It cannot effectively cut off the right of appellate review to the poor. How then can a state effectively cut off the right to assistance of counsel at the trial to a man simply because he can't afford that? I would believe that putting these two cases together, Chandler versus Fretag, Griffin versus Illinois, that Betts versus Brady has implicitly at least been overruled by this Court. Now, clearly has not been as such and I don't urge that it is essential at this Court reach this issue, but I certainly believe it is presented by this record and the Court could reach it. Now, why is it presented by the record? First of all, because the defendant alleged that he requested counsel from the State. Secondly, he alleged, though not very artfully and I recognized this, that he was an indigent. The record doesn't reveal a specific statement by the defendant, “I am an indigent” in his petition for writ of habeas corpus, but it's clear through the inartful draftsmanship of it that he's saying that on page 3, for example, in the original petition, he says, “Courts of competent jurisdiction withheld without exception to the Court is devoid of jurisdiction when the demand for counsel has denied the poor,” arguing his lack of funds.
Felix Frankfurter: Mr. Ward, I'm contested that the requested counsel was denied?
Harold A. Ward, III: No, sir, that is contested. The State has denied that he requested counsel.
Felix Frankfurter: So that's sufficient reason. If the lower court -- if the supreme -- your Supreme Court has not withstand at the sufficient reasons about determining that fact (Inaudible)
Harold A. Ward, III: Of course, this Court -- excuse me.
Felix Frankfurter: (Voice Overlap) -- before the -- for establishing that fact, before the part had argued because this Court has held it certainly not unconstitutional for a man to refuse to have counsel.You had --
Harold A. Ward, III: Absolutely not, this Court has --
Felix Frankfurter: You had choked of counsel down his throat.
Harold A. Ward, III: No question about, though this Court has also specifically ruled in a number of cases that there is no requirement that a -- an accused request counsel in order to establish his right to that counsel if the circumstances --
Felix Frankfurter: I understand that.
Harold A. Ward, III: -- otherwise justify.
Felix Frankfurter: All I'm saying is that -- that (Inaudible)
Harold A. Ward, III: That is an open issue but my position on that is that even though it is open if resolved in favor of the State, it wouldn't affect the -- the circumstances here, even though we assumed that this defendant didn't request counsel.
Felix Frankfurter: You mean -- you say he was incapable of making such a judgement?
Harold A. Ward, III: Well, that -- that is a possible argument but even --
Felix Frankfurter: I'm not denying.
Harold A. Ward, III: Yes.
Felix Frankfurter: All I'm suggesting is that those are all (Inaudible) problems.
Harold A. Ward, III: But you -- even if we should assume for reasons other than he was incapable of requesting it that he didn't request it, this Court is clearly held in several of its decisions. Uveges versus Pennsylvania is one where the issue was particularly raised that in fact it's not necessary to request counsel. If you needed it, you're entitled to it regardless of whether you request it.
Potter Stewart: Is your point that the -- is it -- or is it your contention that due process imposed an obligation on this trial court to -- affirmatively, to offer counsel to these defendants (Voice Overlap)?
Harold A. Ward, III: Yes, Mr. Justice Stewart.
Potter Stewart: And then of course he could have waived it, as Mr. Justice (Voice Overlap) --
Harold A. Ward, III: Certainly, he could've waived. And that waiver issue, it seems to me, is really the only one that could possibly be opened.
Potter Stewart: That is he could've declined the offer.
Harold A. Ward, III: Right. If it had been offered and the defendant had said, “I know all about my rights. I'm perfectly capable of conducting my own defense.” It's possible that he could have waived, though even there, I think, as Mr. Justice Frankfurter suggested, it's -- there is an argument that an illiterate defendant could not competently and --
Potter Stewart: (Voice Overlap) --
Harold A. Ward, III: -- intelligibly waive (Voice Overlap) --
Potter Stewart: In any of that, all the record shows is that he didn't have a lawyer.
Harold A. Ward, III: Right. It doesn't show that he was advised of his right to one. It doesn't show that he requested one.
Potter Stewart: Not offered one. Refused one or ask one.
Harold A. Ward, III: No reference in it to the record, Your Honor.
Potter Stewart: Simply shows he didn't have one --
Harold A. Ward, III: Right.
Potter Stewart: -- he and his wife.
Felix Frankfurter: Does the record show that we have the whole record of everything that took place in your trial court?
Harold A. Ward, III: It's not clear that the whole record is here.
Felix Frankfurter: But you don't need (Inaudible) at a record anywhere.
Harold A. Ward, III: Well, we have a record but it's not clear --
Felix Frankfurter: We have a record but we haven't -- the -- the record of what took place.
Harold A. Ward, III: As far as I know, we have a whole all --
Felix Frankfurter: I'm not suggesting that --
Harold A. Ward, III: -- it's available --
Felix Frankfurter: -- you did --
Harold A. Ward, III: -- to the State.
Felix Frankfurter: All I'm --
Harold A. Ward, III: Whether or not there could be a greater record, I don't know. Perhaps, counsel for the respondent could -- could answer that.
William J. Brennan, Jr.: I'm curious, Mr. Ward. I see that -- I noticed that both he and his wife received the same sentences.Does she still confined?
Harold A. Ward, III: No, Mr. Justice Brennan, she has been paroled and that I suspect is the reason why her petition was not pressed -- not pressed here. She was a party to the proceeding in the Florida Supreme Court. And subsequent to that time but prior to the petition for a -- what this Court treated as a petition for writ of certiorari here, she was released on parole.
Potter Stewart: If the transcript does contain plenty of evidence of indigency?
Harold A. Ward, III: Yes, sir, I -- I believe it does. There are those allegations --
Potter Stewart: (Voice Overlap) -- for -- for shroud or casket for their daughter who died, couldn't pay for a trip to town. They had to walk in after to (Voice Overlap) body.
Harold A. Ward, III: Certainly, prior to the time he was arrested, there's no question he was indigent. And it seems --
Potter Stewart: (Voice Overlap) --
Harold A. Ward, III: -- unlikely to me that he could have raised funds between November 5th, 1957 and September 19th, 1958 during which time he was in jail for the full 10-month period. I think that's true and I think, also, I was going to note in this return to the respondent's return set forth on page 70 of the record. Petitioner comes close as to saying directly that he is indi -- indigent. He says further the record shows that two proficient prosecutors were arrayed against these indigent and uneducated defendants. So he's -- he's saying that there, I believe, and I believe that issue is clearly here by the record and that this Court, I would respectfully submit, should reexamine Betts versus Brady or at least provide guidance as to how the rule of Betts versus Brady can now be applied in state criminal proceedings in view of the holding in Griffin and in Chandler versus Fretag. But certainly, I do not suggest that that is essential in order to find for the petitioner in this case, since I believe he falls under the circumstances of the cases following Betts versus Brady.
Felix Frankfurter: Mr. Ward, across from the State of Florida law in relation to the crimes for which he was tried and on which he was -- ways on which he was convicted is that -- apart from that and conceding and of course, apart from the fact that he was illiterate, meaning that he couldn't read nor write. Leaving illiteracy -- illiterate know -- thought of contents with that, what -- what allegations are there after his mental state, his intellectual mental norm under which so many of the cases since Betts and Brady has gone that the -- the composition of the Court (Inaudible) what is that (Inaudible)
Harold A. Ward, III: And Your Honor, there is not, so far as I can determine from this record the type of suggestion that has often been present of -- of possible insanity defense or anything bordering on that. There's no suggestion that there was --
Felix Frankfurter: Low intelligence, what is there on that?
Harold A. Ward, III: For low intelligence? Well, there is of course the trial transcript itself and the testimony of the petitioner is set forth verbatim in that transcript which I believe manifestly indicates low intelligence. It borders on the incoherent. There's that. Then of course there is the allegation of the petition that --
Felix Frankfurter: (Inaudible)
Harold A. Ward, III: -- that the petitioners were -- that neither possessed the most elementary rudiments of criminal procedure or foreknowledge with which to conduct the defense that petition --
Felix Frankfurter: I think illiterate talk about foreknowledge, isn't it?
Harold A. Ward, III: Spelled F-O-R-E-K-N-O-W too.
William J. Brennan, Jr.: (Voice Overlap) --
Harold A. Ward, III: I guess it -- I guess it is. I am not familiar with the word. There's also an allegation that petitioner has completely without education and cannot recount the ABCs. There was an allegation that his wife possessed a minimal 6th grade education. Perhaps that means she got to the 6th grade but didn't pass. But then again in the return, there's an allegation that the defendants were totally unable to conduct their defense.
Felix Frankfurter: What is that (Inaudible)
Harold A. Ward, III: There was an allegation in the return to the respondent's --
Speaker: Yes.
Harold A. Ward, III: -- return that -- I'll see if I can quote it here, “The entire record reflects the ignorance and the total inability of the petitioners to examine witnesses or in any way defend themselves and elaborately portrays the issues involved in the petition.” It's on page 71 of the return of the petitioners. There isn't, however, as far as I can determine, any -- any possible or any -- any direct evidence of lack of -- or the possibility that insanity would have been a defense at the trial. Now, it's quite possible that petitioner had had a lawyer and he had requested a psychological or a psychiatric examination as he had a right to do under Chapter 801 of the Florida statutes that a -- an examination of that sort might very well have -- have showed that this petitioner was not only illiterate, uneducated, ignorant, unable to express himself. But that in addition, in fact, he was possibly insane, legally insane at the time the acts were allegedly committed.
Felix Frankfurter: I think all of -- I mean all of things down reasonable and fair and also that the Florida law maybe such. The lawyer could have done things with the difficulties of the law and tried that he did it at least. But except on the assumption that the -- his child's testimony could be broken down (Inaudible) suppose. I don't think the crappiest lawyer in the world could have done anything to that testimony.
Harold A. Ward, III: Now, I certainly would not claim to be the lawyer that you're talking about, Mr. Justice Frankfurter but it's --
Felix Frankfurter: (Voice Overlap) --
Harold A. Ward, III: -- it's possible -- it's at least conceivable to me that had a lawyer been present, that some totally unexpected response might have come to a question that would have opened an entire line of inquiry that --
Felix Frankfurter: Well, that's it unless I -- I --
Harold A. Ward, III: You've qualified.
Felix Frankfurter: I qualified --
Harold A. Ward, III: Right.
Felix Frankfurter: -- unless -- unless the girl is a mature girl (Inaudible) you may well have been. There was a particularity about it then I should think would have -- would have challenged even the most eager lawyer to discredit a witness.
Harold A. Ward, III: Well, it certainly was.
Speaker: (Voice Overlap) --
Harold A. Ward, III: One additional point that I failed to mention. It's interesting to note that this being a jury trial, petitioner didn't, of course, did not have counsel in a jury trial. In every previous opinion of this Court so far as I can determine from the printed opinions and I have not examined the records, in each previous case of this sort where the defendant has been faced with a necessity for a jury trial, this Court has found circumstances amounting to a denial of due process. In other words, there's never been a jury trial case where the defendant represented himself regardless of the other circumstances where this Court has not found a denial of due process. I would certainly hope that this would not be the first, particularly since there are circumstances in addition to the fact that this was a jury trial. Now, Betts versus Brady was a trial situation but it was not a jury trial situation. It was a trial before the judge. And so far as I am aware, there's been no jury trial where this Court has found other than that denial of due process was present when the defendant represented himself. In conclusion, I'd like to call Court's attention to, of course, the case that I probably should have started with but didn't, Powell versus Alabama, which I believe is highly persuasive insofar as this case is concerned. This, of course, is not a capital case. It is a case though which like Powell, involved illiteracy on the part of the defendant and as Mr. Justice Sutherland, I think, put it very out eloquently and has been quoted a number of times in that case. If we cannot expect even the educated layman to meet some of the issues which may be involved at the trial, we certainly cannot expect an illiterate defendant to meet those issues.
Charles E. Whittaker: (Inaudible) as I understand you from (Inaudible) there's some point (Inaudible)
Harold A. Ward, III: No, Your Honor, that -- when I referred to return there, I was referring to the petitioner's return to the states return. And I was quoting from page 71 of the record, which is in his return to the return in which the petitioner alleges that he was in (Inaudible)
Charles E. Whittaker: (Inaudible) admission about the confession?
Harold A. Ward, III: No, sir, though there's -- I think that reading up the Florida Supreme Court opinion as a whole makes the third Florida Supreme Court be in this petitioner as an indigent. The court at one point refers to the poverty, I believe --
Earl Warren: Mr. Ward.
Harold A. Ward, III: Yes, the -- the law of the State does not require that the State appoint counsel to represent indigent defendants so the Florida Supreme Court treated him as indigent.
Earl Warren: Mr. Mahorner.
James G. Mahorner: Yes, sir, Mr. Justice, may it please the Court. I'm James Mahorner, Assistant Attorney General for the State of Florida. We represent the appellee, Mr. Cochran, he's head of our Division of Correction, in this particular course. The -- firstly, in order to lay the foundation for the argument we have to go to as what was the general characteristic of the overall proceedings in this case. Now, the presumption is on the petitioner here and it's fair for the Court to assume that as a matter of fact, the judge and the prosecution were in rapport with the defendant as far as complete fair play, unless the record shows something else. Now, just as a sideline, we have -- which has no bear in direct judge has written Division of Correction on behalf of this petitioner. Thus, he had no strong animosity towards this petitioner. For the Court to come to this conclusion, I asked only that they consider the record as before us. I feel as I go down what occurred in this trial, the Court will come to the conclusion that if any of the individuals on this Court had been sitting as judge on that case that they could have done more -- no more except for the appointment of counsel. They could have done no more than that particular judge did. I also feel that it will be shown that --
Potter Stewart: I think -- isn't that perhaps your -- your opponent's point that a -- that a judge just isn't in the position to do for a defendant no matter how fair he is or how lacking in animus towards the defendant, he was in the position to represent the defendant because he was there as a judge, not as an -- not as an arbiter.
James G. Mahorner: Yes, Your Honor, that -- that would be his point. But my point is that under Betts versus Brady, if everything in the overall proceedings is completely fair to the defendant and the only factor is the lack of counsel. Then such factor will not be sufficient to reverse the case. So our first approach is to show that all the factors are fair except that one point of failure to appoint counsel. First, we look at the record on page 31 to explain to the defendants if they have the right to make an opening statement, that they can sit back and wait until the State makes their case and then they can make an opening statement to the jury before placing on their defense. The defendant chose to -- to wait. They will later be shown if they did make an opening statement to the jury before they put on their defense. The defendants did cross-examine as shown on page 41 and 47. Counsel for petitioner has shown that such a cross-examination was very brief. However, the court has pointed out that it's possible that no attorney could have done more but the big factor is it is quite possible that many attorneys would have come to an independent conclusion, “Let's not cross-examine this witness to a further extent to get this exact testimony before the jury.” And what was done by a petitioner or about -- was that which might have been done by many attorneys to what not furthering the evidence of the prosecution witness. Now, what did petitioner temp to do in this cross-examination? He attempted to do this. He wanted to show that there was an inconsistency on what the witness said to what the witness said that he was alone whether that her mother was in another section of -- of the community. He wanted to show that that was not the case. He laid the foundation and later on in his testimony, he brings out this to support it. Now, there is no inflammatory comment by the prosecution. When they attempt to bring out another crime on page 49, it simply, “Had you been convicted of another crime?” “Yes.” “How many?” “One.” No further whatsoever, not -- no dwelling on it, always it's just -- there's nothing to stir up animosity between the jury and this man which the prosecution does in his cross-examination.
Potter Stewart: It is brought out later, isn't it, that that crime was cutting somebody? Talks about (Voice Overlap) since he got set up.
James G. Mahorner: I appreciate the correction with -- from the court there. Yes, sir, it was brought out further on cross-examination. The right not to testify was explained in detail to the defendant, his constitutional right not to incriminate himself which explained on page 49 of the record. Now, keep in mind that all of these arguments about what a counsel might have done as the same arguments that could be used if counsel was present to say, “What could better counsel have done?” Now, the explanation of the closing and opening rights for making the argument to the jury was given in detail by the court on the record on page 61 of the case. They made arguments to the jury as shown by the record on page 62 of the case. In the charge on page 62, the court put out in detail how the burden was on the State to prove and how there had to be beyond unreasonable doubt and on the record in page 68, a coercion the jury not to consider testimony given for impeachment as indic -- indication of the guilt of the defendant. We therefore submit that when we consider the overall proceedings of this trial, the judge did every thing possible that any judge could do except the appointment of counsel. And that the one lack of fair play in this trial is the failure to appoint counsel. And we're now going to go into the considerations given to Betts versus Brady and whether this case should be reversed. We feel that, as of this point, the case falls under Betts v. Brady. Furthermore, in Betts v. Brady there was at least support for the indigents of the defendant. There is no support in this record as far as not the testimony is concerned but as far as the allegations of the defendant that he was indigent. He certainly didn't make it in his petition. They have attempted to rely on a statement and what is essentially a reply brief. And that statement is that is shown by the record that two strong attorneys were aligned against these indigent uneducated defendants. Certainly, a denial of such statement does not come to issue of the indigents of the defendant. The statement is, as to whether the attorneys were there. Now, the first reason that we do not think this Betts v. Brady should be reversed in this particular case is because of the effect this Court has given the Mapp v. Ohio decision. Now, in the Mapp v. Ohio decision where the Court reversed these prior holdings on the evidence of miscibility of illegally obtained evidence in state courts, the court here was confronted with not a collateral attack on the judgement -- not a collateral attack on the judgement but a direct proceeding, appellate proceeding on the judgement. The court has refused to apply that change of law, that change of law to convictions that took place before the Mapp holding, the federal system has. Therefore, we have here the situation where if we were to change Betts v. Brady, if we had changed Betts v. Brady one year ago, this petitioner could not here be attacking his lack of counsel and the urging that Betts v. Brady had been reversed.
Felix Frankfurter: May I trouble you to repeat that last sentence, if this had been here a year ago?
James G. Mahorner: If -- if another case had been before the Court a year ago and they had reversed Betts v. Brady as they made to reverse the prior opinions in Mapp v. Ohio where this petitioner here was convicted prior to the reversal, this petitioner could not today be relying on habeas corpus to overthrow his conviction on --
William J. Brennan, Jr.: Your argument is that Mapp has only prospective operation, is that it?
James G. Mahorner: Yes, sir.
William J. Brennan, Jr.: And that we overruled Betts versus Brady, it has only a prospective operation.
James G. Mahorner: I'm arguing --
William J. Brennan, Jr.: Are you very sure of that?
James G. Mahorner: Made them --
Felix Frankfurter: You're very sure of your starting point, Justice Brennan wants to know, namely as Mapp and --
William J. Brennan, Jr.: That Mapp is only prospective operation.
James G. Mahorner: It was my understanding that in the lower court, it had --
William J. Brennan, Jr.: Even the Court of Appeals doesn't agree with it.
James G. Mahorner: I -- I did understand that but I understood -- well, I'll drop as long as I've made the point if the -- if the original started wrong, the whole point assert --
Felix Frankfurter: As long as --
James G. Mahorner: -- whole point --
Felix Frankfurter: -- we've got --
James G. Mahorner: -- assert --
Felix Frankfurter: As long as we've got your point, you don't need it.
James G. Mahorner: Thank you. Now, if there is a right to counsel in all cases involving liberty, the same would go of course to traffic cases because certainly an indigent defendant isn't going to have the alternative of paying a fine. Furthermore, as this Court here is not by constitutional mandate require to sit as attorneys. The defendant is not constitutionally entitled to have attorneys sitting on his appeal to this Court. It certainly followed that he is not constitutionally entitled to have attorney, judges at any level since certainly if the highest level is not required to be attorneys, no level is. We, therefore, find that the jury cannot be attorneys, the Court might not be attorneys and yet, we have this insistence on the sanctity of having attorneys in the case. The Constitution doesn't recognize to give such recognition to attorneys. You cannot argue that you're constitutionally entitled to that which the Constitution does not ensure the existence of. Many years ago, this was held constitutional. Certain statutes were above the States and said you could be represented by anybody of your choice. These undermine the legal profession. You didn't have to have us legal education to represent someone. You didn't have to be an attorney. These laws were upheld as constitutional. The Constitution does not give any mandate that attorneys will exist. Now, as far as -- as far as the --
Earl Warren: If a man couldn't read, how could -- how could he challenged this indictment?
James G. Mahorner: He always has a prerogative to have an indictment read to him, Your Honor, always.
Earl Warren: Would he know that?
James G. Mahorner: Well, the law is often confronted with the ignorance of the defendant and that's why they've taken this presumption of law that you understand, that you have the general knowledge of it because if you have to go on the specific, whether the man actually knows there are not, there's confusion that results in many cases. Now, as far as the argument, we let rich have attorneys why not let the poor have it? And -- and making that argument petitioner relied first on Fretag. In Fretag, there was a request for counsel or request to given time to obtain counsel, any case wherein there's a request for the ability to obtain counsel on your own as completely distinguished before the case here. We acknowledge that you have the right to have your own counsel there if you can get it. Now, suppose you give this right to the poor, so to speak, and you find that there is a constitutional right to have an attorney, to have an attorney, without commenting on its app -- on the application of this reasoning to the constitutional right of appeal. Let's first look at this. If you have a constitutional right to have an attorney, and if you have money regardless of whether you're rich, just if you have money, you must pay $100 attorney fee and understand attorney's fees are low in Florida or $200 attorney's fees. Where if you have no money, if you have no money, you paid no fee, you are in effect fined, in effect fined. You lose a property right that is the money to exercise the privilege even though you aren't exercising a greater privilege. Now, this has nothing to do with progressive income tax. If you earn more income, you're getting a greater privilege or greater protection. But here, you get the same attorney in either case, in all probability that certainly can come out that way. And yet, if you have money, if you have $300, you aren't going to be able to take this oath of being indigent. And you will have to give up that property in order to obtain what is urged by petitioner to be a constitutional right. Now, furthermore when you speak of --
Earl Warren: (Voice Overlap) an equal protection issue for the wealthy in this matter?
James G. Mahorner: Yes, sir.
Earl Warren: Is that -- is that what you're doing?
James G. Mahorner: Yes, sir. When you speak of an appeal, the man must swear under oath to the court and the burden is on him to come to the court, the burden is on the court to go to him, must swear to the court under oath that he is indeed indigent. This man never made any oath swearing to the faith to this Court.
Felix Frankfurter: I'm -- I must have missed something. What -- what benefit does one -- what is your law regarding -- what are the consequences of taking an oath of indigency? What does he get?
James G. Mahorner: He gets -- he gets the appellate record drawn up free of charge, Your Honor. But in order to get this appellate record drawn up free of charge, he must come to the court.
Felix Frankfurter: What about the $100 against $200? You mentioned as such.
James G. Mahorner: I said that attorney's fees of $100 or $200 one man. If he has $300 will have to pay the fee, he can't take the oath if we apply this -- if we say that you are entitled to the counsel.
Earl Warren: (Inaudible)
James G. Mahorner: Thank you, sir. In order to get this right of appeal, petitioners try to compare the right of appeal on the fact that you get appellate right when you're poor. The courts have held that the burden is on petitioner, on petitioner to come forward with an oath to the -- to the effect that he is indigent and to establish his claim to this right. So here, petitioner did not come forward with any oath that he was indigent, that he wanted counsel in the similar manner that he would have been require to come forth that he was going to exercise this right of appeal. So if he had done the same thing for an appeal, he would not have gotten -- have not have gotten the appeal under the circumstances present in this case and it follows, he certainly shouldn't have gotten an attorney under the circumstances present in this case. Now, we --
Charles E. Whittaker: How do you know he didn't claim poverty at the time he says he asked for a lawyer at the trial?
James G. Mahorner: He -- the State represented in the return on page 15 that they were submitting a transcript of the testimony at the trial. The State has endeavored to submit everything that was available on record to the court for its consideration. There was nothing whatsoever that indicated that the petitioner had asked for an attorney. There was an absence of it. Now, if petitioner fails to ask for an attorney, there will always be such absence, there will always be such absence. And the States never going to be able to show a record whereby it shown he didn't asked for an attorney. And therefore, they have done everything possible to show that he did.
Earl Warren: Mr. Hahorner.
James G. Mahorner: Yes, sir.
Earl Warren: Is the whole record here?
James G. Mahorner: Yes, sir, to --
Earl Warren: Everything?
James G. Mahorner: Yes, sir.
Earl Warren: Everything (Voice Overlap) --
James G. Mahorner: Everything that was available -- everything that was of record is here. And we --
Earl Warren: Oh, well, I know but everything it was of record but is everything that happened in the proceeding here?
James G. Mahorner: Sir, all I can say to that, Your Honor, in full candor is that to our knowledge, everything that happened is here.
Earl Warren: Yes, yes.
James G. Mahorner: But that cannot say anymore in it.
Earl Warren: Yes. Is it the practice of your court to advice an attorney that if he doesn't have counsel, he can get counsel?
James G. Mahorner: No, sir, it isn't. I would --
Earl Warren: You don't advice him? The court doesn't advice him? That's what I'm asking.
James G. Mahorner: No, sir, there have been cases where they have appointed-counsel and they do have public defenders in many areas where they appoint counsel.
Earl Warren: No, but I mean a man comes up before the court on arraignment charged with -- with felony and he has no counsel and does the court say to him, “Do you have counsel Mr. so and so?”
James G. Mahorner: No, sir, they don't say -- they don't say that and they don't say to the same man, “Do you want to make an appeal and are you too poor to make one?”
Earl Warren: I can't quite hear you.
James G. Mahorner: They don't say that, Your Honor. But the analogy is also they are not required to say to that man after the trial. “Are you too poor to make an appeal and do you have one?” It is on him to make the move on these appeal cases. He must make the motion and show that he wants an appeal and he's indigent. And so it should at least be on him to make the move to show that he wants counsel, same analogy we feel and that he is indigent.
Earl Warren: What -- what do your courts in -- infer to do by way of advising the defendant of his rights in the case?
James G. Mahorner: They are always in detail about not we're being required to testify against himself. As the record shows to some extent, the normal -- that some of Florida courts are -- are, you know, not cosmopolitan. The record shows a very uncosmopolitan court but a relatively fair proceeding in the record here which is typical. He advised him detail of man's right not to testify, same time he advised him detail of his right to testify. He showed him that he could make an opening argument and a closing and under what circumstances he would lose opening and closing. He showed that he could make an opening statement at the beginning of the case to the jury. They're advised all the way through of anything that an attorney should know and would need to know with that particular point in proceedings.
Earl Warren: But they do not advice him concerning a right to counsel at all.
James G. Mahorner: No, sir, because under Betts v. Brady, they do not have a standard right to counsel so of course they couldn't advice him.
Earl Warren: Is this record -- does this record show that he was advised in all those sayings that you have just mentioned?
James G. Mahorner: Yes, sir.
Earl Warren: All the way through, is that right?
James G. Mahorner: Yes, sir.
Potter Stewart: Under Florida decisions and under Florida law, the defendant has unqualified right to counsel only in a capital case, isn't that correct?
James G. Mahorner: That is correct, Your Honor. And even there, it is possible that we are exceeding this Court because in the case of Powell v. Alabama, which is relied on for an attorney, which is relied on for the proposition that attorney is needed in the capital case. Nowhere do they hold in that case the fact the case is capital is the deciding factor. The case itself says the fact that it -- the -- the (Inaudible) make sure the crime. They go on the idea of the youthfulness of the defendants referred to -- in fact the record referred to him as boys and on the factor that they were on a hostile community and indigent and ignorant. And --
Potter Stewart: But in any event, the law of Florida is that --
James G. Mahorner: That the law of --
Potter Stewart: -- in a capital case you have --
James G. Mahorner: Yes, sir.
Potter Stewart: -- absolute right.
James G. Mahorner: Yes, absolute right. Now, this right attempted to show that -- that the right to appeal if we make this similar to the right of appeal where you have to be given that right and that the burden is on the petitioner to show his need for the right and the court has no duty to point out that he has the right and therefore, the same analogy should be present here. We also believe that this is similar to a jury trial requirement. This is a procedural requirement of a criminal proceeding. Very similar to jury trial and is in fact located, if I remember correctly, in the same part of the Constitution. The court has held that this proceeding -- that jury proceeding is not required of the States if they have great discretion in the exercise of criminal procedure. And certainly, where the similarity between jury and the counsel here, the two were very comparable and these too is a procedural aspect that the court should be given great discretion unless they denied the man's right to a hearing. Now, we urge if the man is feeble-minded, if the man is in fact below 21, if the man for any factor other than education, cannot represent himself, let's take people not mind in this, in minority, a court very likely would point a guardian in a civil trial. As understood, the man doesn't -- can't represent himself and that a hearing from himself is not a hearing from -- of his course. But this particular man here is given full recognition under the law. He is entitled by this Constitution to be president of the United States except for the manner of vote. There is no educational requirement whatsoever for him to hold that post. As I've said he could be on this Court. Education is not given constitutional recognition. The very -- we feel the very beginning that we feel now education might possibly over emphasized and certainly in the beginning when the Constitutional was developed, and now, the requirements that you have in education are very few in this Constitution and that shown not for for this Court or not for presidential office. Now, when his right to counsel that's developing under the Sixth Amendment, anyone had a provision as long as -- as far as 1838 that you could have no counsel come into court to represent you in a felony charge.
Earl Warren: We'll --
James G. Mahorner: Thank you.
Earl Warren: We'll recess now, Mr. Mahorner.