Earl Warren: Number 65, United States, Petitioner, versus Louis T. Merz, counsel on the premise. Mr. Marquis.
Roger P. Marquis: May it please the Court. This and the case to follow it are the first to present to this Court problems concerning the procedural administration of Rule 71A which was adopted in 9 -- it became effective in 1951, providing the federal condemnation procedure and practice. The precise issue here of both of these cases is the nature of the findings and the report that is required to be made by such a commission. It is pointed under that rule. There's been a considerable diversion of opinion in the lower courts and by attorneys on this subject and on other subjects concerning the relationship of a commission under the federal rule and the district court and their relative functions. A little bit later, I will detail a little of the history of this rule and its comparison which I think shows that this is a com -- this commission is a completely new creature of condemnation law and is not to be analogized or compared in its legal terms with the commissioners, the Board of Appraisers or the Board of Views or whatever they might be called, with which we fam -- were familiar before 1951 and which prevails under state law.
Potter Stewart: This did not come in then with the federal rules, whenever it was, 1938.
Roger P. Marquis: No, the -- there was a great conflict and difficulties about the condemnation rule. So that it was postponed. The committee postponed it for almost 20 years be -- and there was a great controversy on this particular subject. It went back and forth with the committee a couple of times before this rule were ever adopted, especially this Rule 71A (h) which is the rule as to method of trial.
Potter Stewart: Was there any provision at all before -- in -- in the original federal rules or was there just provision of the first trial?
Roger P. Marquis: There was not -- we were conforming to local law. We were following the local practice up to 1951. The -- first, our position is this, that the commission's report must state what the facts, physical and economic and that includes what the evaluation opinions are, what was the basis for them, what are the other facts relating to evaluation, the issues before them, it must state what the controversial issues are between the parties and it must state how the commission resolved those controversies, and what was the basis for its particular awards that it made. That is our basic position in both of these cases. The Merz case, the one which I am arguing, can be justified. The judgment below can be affirmed only if you conclude that none of the things which I mentioned are necessary to be reported by a commission and only if you conclude, as the Tenth Circuit did in its opinion, that a so-called general finding, that is simply a monetary award, is all the commission need to tell us.
William J. Brennan, Jr.: I think that you were on the (Inaudible)
Roger P. Marquis: It's --
William J. Brennan, Jr.: (Inaudible)
Roger P. Marquis: Not necessarily a particular case. It maybe a particular project sometimes or in Kansas, at the moment, we have a group of 12 standing commissions. But they are ad hoc in the sense they're non-professional. They're engaged in other activities and this is a secondary activity of theirs.
Speaker: (Inaudible)
Roger P. Marquis: There of course, are no provisions in the rule as to who shall be a commission. The -- it varies considerably between the judges and the district courts in various places of what they appoint, I would say, almost invariably. They will appoint at least one lawyer. And, they may have -- in this case, we have two lawyers and appraiser. Very often, you have an appraiser --
Speaker: A real estate appraiser?
Roger P. Marquis: A real estate appraiser yes. Or very often you may have one real estate man, real estate broker, a businessman, and a lawyer.
Speaker: (Inaudible)
Roger P. Marquis: There are three. It provides for three. The rule provides for three.
Tom C. Clark: (Inaudible)
Roger P. Marquis: Oh, yes. That's -- that's what our case is because we say we don't know how you reach your figure.
Tom C. Clark: Well, I hear you but, based on our (Inaudible).
Roger P. Marquis: No, no. No, no this -- this commission is not to go outside the evidence. In our view, this is a judicial commission. This is a judicial fact-finder. They are not to use their personal knowledge and go outside the evidence and reach their result on some basis whether this is their own opinion as a real estate appraiser or whether it's knowledge they get from other places. This is the only judicial trial as to compensation. And in our view, it has to be on the same basis and I think this is one thing, I think that all of the lower courts have agreed upon that this is tested by the ordinary standards of judicial adjudication. It isn't simply a personal appraisal and that's -- as I adverted to a moment ago, that's the difference with -- between state law. But that is the kind of a commission that almost all of these state laws where there is the dual first board of commission or board of appraiser or board of view and then a right to an entirely new judicial adjudication on a jury trial de novo. Now there, the informal non-judicial type of adjudication was perfectly proper because it was simply tentative estimates, similar to our federal declaration of taking procedure. But --
Speaker: (Inaudible)
Roger P. Marquis: No, no -- no, no there's plenty of room. There's no -- a commission is not bound by any of the testimony of any particular expert. They can use their matter of judgment within the range of the evidence in their record, and that's the function which our view has. But as Jerome Frank put it in one case where they were saying that evaluation is just a guess, but he says the guess must have the rational foundation. It can't just be a figure out of the air or it can't, as in this case of ours where we have a formula used by one of the witnesses Mr. Wilcox, it can't be a formula that is irrational. Now here, we had the landowners who -- these clearance easements are imposed at varying heights over various tracts of land. One of them is from 105 feet up to 165 feet. It's quite high in the air over this farm. There's no interference with farming. Yet, the landowners all in each instance came in and said -- each said, “My land is depreciated in value of 50% by impositions of those easements.” Now, I think, if the commission had said, “We agree with the landowners that each of them is depreciated 50% even though it's 100 feet above Mr. Smith's property and it's only 13 feet above Mr. Merz's property.” I think that would be an irrational decision which would appear from the report when the commission tells us what basis they used to arrive at their result. And that is the obligation we say for example, within reason and of course I'm not saying they have to go into all of minutia of course not. But, within reason we had comparable sales here that were relied upon by both parties. We had some. They had a few. We had much more as we usually do, one of them was a sale of property right next door to the Merz's property. We think there should be some indication whether the Commission gave weight to comparable sales and if so, just what sales they did and didn't consider. So that then, that evidence can be weighed.
Potter Stewart: Can I ask you how these Commissioners are compensated?
Roger P. Marquis: Their fees are set by the courts and there is a separate appropriation now. That was one matter that's given us some difficulty in the last two or three Congresses on the matter of the appropriation. There is a separate fund that's appropriated which -- in the Department of Justice appropriation and they're paid from that fund.
Potter Stewart: And the fees are set by the court on an auditable basis?
Roger P. Marquis: The an -- individual basis and they vary greatly throughout the country.
Potter Stewart: Per diem or how?
Roger P. Marquis: Very often, they may be. A great many of them are set on a per diem at the time of appointment. Others are set after the report has been made. On the basis of what their services were, there was one case in the Second Circuit where, amongst other things there was a question on appeal as to the amount of their fees for the commissioners' appeal because they weren't allowed to know and the Second Circuit raised this.
Potter Stewart: Are there considerable disparities throughout the country and as among various district judges that handle this?
Roger P. Marquis: Oh yes, there is a range from -- for example from -- I know I've seen a sum of $30 a day and, a great many of them, up to $100 a day. So that there is a 300% range.
Potter Stewart: Just as there are in criminal sentences.
Roger P. Marquis: That's right, there's a -- it -- of course it depends on region but it also depends on personal approach and so many other factors. Turning just --
Hugo L. Black: (Inaudible)
Roger P. Marquis: Sure.
Hugo L. Black: (Inaudible)
Roger P. Marquis: The District Judges do this. Here again, we get into practice. Some of them give instructions, general instructions, at the time they appoint the commission or sometime later on general principles of condemnation law. Others of them, for example in this record, there's no instructions at all given. The difficulty there is of course, that they are not cued to the precise issues or the precise evidence in the cases. They're simply generalizations and for example, we've had in one of the cases we cite, the Muller case where the commission itself recited these general principles and said, "We filed them in our report but when after going to the court of appeals we got a specific report as to what we did, the court of appeals agreed with us the second time that they simply had misapplied the principles.” So that we don't have -- as example in a jury case, we don't have the instructions given tied to and relating to the special evidence in the case because the judge hasn't been there during the trial.
Arthur J. Goldberg: (Inaudible)
Roger P. Marquis: Oh no, that's just like the jury I think that -- and certainly that is the concept of -- in jury cases and -- many times the judges in judge-tried cases too, we -- of which we have quite a few.
Arthur J. Goldberg: (Inaudible)
Roger P. Marquis: The difference of course with the jury is that you have rulings -- you have your rulings on inadmissibility of evidence, which is one of our prime means of confining the evidence to just what is involved. You have your instructions. You have the judge's presence so that his abil -- his authority to grant a new trial to escape just irrational or I'll result to that sort. And, you have the fact which I think is important here too. The fact that a jury trial commences, they remain together, and you come in with a verdict so that extraneous influences are at a minimum. These commissioners uniformly even when as here they had a five-day hearing, they go off about their business and two months later as in this case, render their original report and then, a year later, that they supplemented it. So that, without making any invidious charges that their human nature in the business, they're subjected to many influences and the evidence be -- tends to become something that happened in the past by the time they come to making a report.
Speaker: (Inaudible)
Roger P. Marquis: Oh, yes.
Speaker: Witnesses.
Roger P. Marquis: Oh yes, there are this record -- this record has the full transcript of the testimony just as with a jury trial.
Speaker: Just exactly what we have here. (Inaudible)
Roger P. Marquis: Sometimes, sometimes not. We have just -- we've -- here he did, that's right.
Speaker: He found (Inaudible)
Roger P. Marquis: Well, he simply said here “I've decided to confirm the report.” His letter said no more than that and we have -- quite basically, our complaint is that even here before this Court, through all the commission and the courts, we have never been affirmably told how did the commission reach these figures, some of which are down to the odd dollar. There's one that is $33, another one is 507 -- $7,510, something like that. And our point is that we can't judicially review such a thing, unless we know, unless we're told how they arrived at that amount. They were said -- the only one thing that is said is that they followed a before and after process, which is what you do. You -- we value the land before imposition of the easement, there was great controversy on that and the value of the land after imposition of the easement.
William J. Brennan, Jr.: Are you supposed to do that in every case?
Roger P. Marquis: No, in an easement case.
William J. Brennan, Jr.: Yes.
Roger P. Marquis: Yes, that's the way you must value and that the only --
Potter Stewart: The only -- only allowable way to value in easement, value of an easement?
Roger P. Marquis: I've never seen a record that had come up with any other thing except this formula which this witness had.
Potter Stewart: But which you say is erroneous.
Roger P. Marquis: That's right. And I don't know of any other way you value an easement except to determine the damage to the land because of the imposition of the easement by determining the value before and after, yes.
Arthur J. Goldberg: (Inaudible)
Roger P. Marquis: Well, I hadn't -- the terms --
Arthur J. Goldberg: (Inaudible)
Roger P. Marquis: Well, I hadn't -- i hadn't -- specifically analogized. I hadn't intended to analogize it to an administrative agency anymore than I would analogize it to a district judge. It's a fact-finder. It's a judicial adjudication of this particular fact. But I do think what we do say is, because of the differences in the way that they proceed, the requirements they're applicable to district judges and to all other fact-finders administrative agencies, district judges, court of claims, and all other fact-finders other than a jury for purposes of judicial review are necessary because in the jury case, we have our other means which have -- may have developed over our centuries of law as to assuring of correct principles being applied. In that connection, this matter of the formula is very important. I think it is very illustrative. You would never in the world get a jury trial where the court of appeals could say, “We conclude simply from the trial that the jury ignored 50% of the landowners' testimony.” That's what they -- the Court of Appeals has said about the Wilcox's formula. They said they admit the -- it's probably a no good valuation but they simply say, “We don't think the commission gave it credit.” The rule in jury trials would be very clear that this would be reversible in a jury trial because the rule is that an error as to admission of evidence, which goes to a substantiality, has to be something substantial, yes. But, an error and particularly in condemnation, case after case we have where the reversal in a jury trial is because an element of value was allowed to be brought in which shouldn't have been a claim of value -- a contention of value which should've been excluded. And, presumptively, we -- no one knows unless we ask the jury whether it affected their result or not. Therefore, presumptively it did affect the verdict and it must be reversed. Now, that's the difference in the jury trial. We don't have that, and that's why we think to supply the judicial review that would exist in the other direction in the jury trial. Then we turn to the requirements that have been developed as to all other fact-finders and that is the finding of what facts and how we got to our result, not just our ultimate result.
Arthur J. Goldberg: (Inaudible)
Roger P. Marquis: That's right sir. Yes.
Arthur J. Goldberg: (Inaudible)
Roger P. Marquis: Actually here, the record shows that they had originally, in their answers asked for a jury trial and then later they made the motion for appointment of a commission that's right and it's not infrequent practice in various places, although the rule doesn't specifically provide for it.
Arthur J. Goldberg: (Inaudible)
Roger P. Marquis: No, I don't think so. There is a docket entry that shows earlier at pretrial the judge had decided to have a commission. Now, just what the landowner's position was at that hearing I don't know. That isn't in this printed record here. It's in the docket entries.
Speaker: (Inaudible)
Roger P. Marquis: That's right. That's right, it was -- it was a rare objection and the record contains the landowner's motion. That's correct.
Speaker: (Inaudible)
Roger P. Marquis: Not at all, Your Honor. Not at all. We don't -- let me put it this way, and this has lead to a lot of misunderstanding. Under the rule, it says that the objection must be made within 20 days of time to answer. And, we had always construed that when the rule went into effect as for purposes of the record acquire -- requiring us to object to the point of the commission on the bottom of our complaints, and that's what we have been doing. Not that we insisted upon it later on when the -- it became clear to us what the case was and what it was about and what the situation was, we have not insisted on juries in every case by any means. As a matter of fact, we've devised -- which we think is a substitute for this problem of the commissions which many think expedite and which we think delay things, we have a program whereby we submit to the court without a jury these smaller cases and we get rid of them on the calendars and we've reduced our standing workload one-third by doing it. So that we do not ask in every case by any means insist on commission -- on jury or dully object to many instances to use of commissions. We do think that, to make it effective and to make a true judicial evaluation, that we should be told how they reach their result. That's the basic case that we have here.
Speaker: (Inaudible) -- they ought to write an opinion in this case.
Roger P. Marquis: It's -- there are various -- it's very --
Speaker: That's one way of putting it.
Roger P. Marquis: It's not too remote from the opinion which starts out and tells you what's involved in the case and then tells you what happens. As -- I don't think it should be too difficult and it's to the extent that is. It's a discipline in putting down on the paper what your vague notions may be.
Speaker: (Inaudible)
Roger P. Marquis: I think that that's in effect which you'd require of findings of fact and conclusions of law. I think quite clearly in evaluation case, certainly in the court of claims cases.
Speaker: Well --
Roger P. Marquis: For example or in other evaluations.
Speaker: What I was getting at is, if one of these commissions makes findings of facts and conclusions of law that satisfies your test?
Roger P. Marquis: If they give us satisfactory findings and conclusion which show what they relied on to reach their result and gives us some assurance that they weren't going outside of the record or they weren't relying on matters that we thought was objectionable or irrational, that's what we want.
Speaker: Made findings of fact in detail -- in detail and then ended up with the conclusion of law, as in Virginia and on this basis, they think the award should be this itself. That would not satisfy it.
Roger P. Marquis: That's the second case we have tomorrow. They did write, of what we think is perfectly acceptable, a statement of what the case is all about. They did not however, set it -- settled the controversies between the parties. And that is the ground on which we object to that report that they've got to do the two things. They've got to tell us what the case is about and they've got to tell us what the -- how they resolved what the parties were controverting about. In a --
Arthur J. Goldberg: That gives the (Inaudible) decision in his argument (Inaudible), just on the one side, (Inaudible) not just to the other side (Inaudible) the commission must make a choice (Inaudible) is resolved. (Inaudible) they also make their choice and not (Inaudible)
Roger P. Marquis: Oh no, I'm not --
Arthur J. Goldberg: (Inaudible)
Roger P. Marquis: Oh no, I'm not saying that they have to simply choose between the -- between the two sides in their expert opinion. No, they weigh the expert's opinion.
Arthur J. Goldberg: (Inaudible)
Roger P. Marquis: And they can very reasonably --
Arthur J. Goldberg: (Inaudible) in theory if the commission had come in and say (Inaudible)
Roger P. Marquis: Well Your Honor, you're putting the case which we have been trying for 20 years to eliminate in this. That may sound strange but it is exactly the campaign we've been on that merely an expert getting on the stand a nd given a figure is no evidence at all. And, the appraisers in the -- the respectable appraisers recognize that. That the worth of that appraisal depends upon the basis for instance, the comparable sales and that's one thing we keep emphasizing. We bring out the sales that were in the area. We have a map and we put them on the -- we illustrate with the comparable sales and then we have a basis of judging that opinion. Now, I'm not saying that there, in most of these cases, it well -- may well be that the courts will say, “Well, we think the government appraisers were a little bit low. They didn't give quite enough weight to this sale a half-mile down the road, but the landowners' appraisers, they were too high. They ignored these other four sales that were a mile in the direction.” And --
Arthur J. Goldberg: (Inaudible)
Roger P. Marquis: Well, we -- we have all sorts of cases that get in the varying degrees of difficulty. But in these farmland sales, for instance if you're looking in front of these cases we -- they're here before us on in this ap -- on these two cases. We will find comparable sales, one of them is next door to the Merz's property, and we have several sales showing a pattern. That's what we're after. And --
Arthur J. Goldberg: Do you exclude (Inaudible)
Roger P. Marquis: I -- no, no we don't exclude. We say sure, they're going to compromise in many, many cases but the compromise has got be on a rational basis. It's like you can't have a quotient verdict. You can't just add them all together and divide it by two.
Speaker: You can if you (Inaudible)
Roger P. Marquis: Well, I --
Speaker: (Inaudible)
Roger P. Marquis: Well, there's the possibility but I personally, in 25 years of working on this subject of security, great competence in the triers of fact in working out rational and, at least, reasonable results if properly guided. I think I'm -- personally, I think it's a lot better than a lot of people -- critics of it think it is.
Byron R. White: If there was a --
Roger P. Marquis: But --
Byron R. White: -- I suppose the commission and actually, the company of (Inaudible)
Roger P. Marquis: If they said we simply follow this appraisal report, then, the question would be the validity of that report and whether it was irrational to reject everything else.
Byron R. White: Certainly, (Inaudible)
Roger P. Marquis: I don't think they would agree in these normal cases. You could disagree that far.
Byron R. White: In normal cases?
Roger P. Marquis: I don't think that they would -- not 4 and 5 to 1, I mean --
Byron R. White: (Inaudible)
Roger P. Marquis: Unless there's some element and it's very debatable or something like that. I don't think you would get such a spread but if the --
Byron R. White: Now, what (Inaudible)
Roger P. Marquis: If they did.
Byron R. White: (Inaudible)
Roger P. Marquis: Well, the first thing we want in --
Byron R. White: (Inaudible)
Roger P. Marquis: Well -- well they could've -- first of all, they could've given us the value per acre of the Merz's property before we imposed the easement. There was a great controversy on that. They could've given us the value of the property after we imposed the easement. The --
Byron R. White: (Inaudible)
Roger P. Marquis: But, we don't know how they got that. At least we'd know that. We don't know whether they took 250,000 or 200,000 or 300,000 acre on the Merz's property. There was evidence of 300,000 acres, but we don't know whether they took that or whether they took 200 and their bigger difference is in their subtraction. It's in the diminution. We -- we just can't tell on these figures. We use -- we know they must have used some system because they came out to figures like, as I say, one of them is $5,733. Well they got there some place or they took a figure out of the air which would be wrong and unreasonable. So that's what we'd want to know. Another thing we want there are several things in here which we've mentioned in the record. We want to know where they relied on this witness, Wilcox. We had a motion to strike it on several grounds, both because of the formula and because he wasn't qualified because he didn't look at sales in the area and, in fact, in one place in the record, he says “I made my opinion and I went out looking for sales to support it.” All those things we think we're entitled to note and to know whether the value was arrived at fairly and with regard to the law or not. I see my time is up. Unless there are other questions why we submit that we should be told by somebody where these figures came from?
Earl Warren: Mr. Meacham.
Denver W. Meacham: May it please the Court. I'm at a decided disadvantage as a country lawyer who's concerned with these people in this particular case and so far, the discussion has had to do with the broader picture. I think it -- this case, of course, will be decided according to the rule the way it is now and I find it helpful to review the general principles just very briefly that are involved. Our mission in this case is to decide the just compensation to these particular people for the clearance easements that were taken on their property eight years ago and which have been in litigation ever since that time. There's no dispute that we arrived at that just compensation by taking the fair cash market value which is what a man who wanted to buy this property would pay the landowner if he wanted to sell and which is, let's face it, is an informed estimate. We accrued ourselves to some degree. It's just our best guess. That's what we're trying to do. Now, the rule say 71A (h) says that this Court authorizes the appointment of one of these commissions. The rule say that that commission will try the facts will arrive at a judgment as to the amount of what they find and that the appellate court will -- and that the district court will approve that report. If there are no objections to that report, if that report is clear -- not clearly erroneous. So, it seems to me that logically we're at the point in this case where we determine whether the facts as found by this commission and the law as found by this commission are clearly erroneous. Now, another thing your rule says, your rule says that if an objection is made to this report that the Government must object and tell the court of what the objection is. In this case, the objection to the Government as to the report which originally was a report that just found there was so much. In this report, these commissioners which were composed of two lawyers and one real-estate man found that they had tried this case, that they had viewed the land and they had arrived at just compensation in these following specific amounts. The Government object to that report and said there's no specific findings of fact and conclusions of law. So, the commission filed another report and in this report. To me, they -- they tell this Court precisely what they did. They said the highest and best use of this property was for agriculture purposes.
Potter Stewart: Is there any issue about that?
Denver W. Meacham: No, sir. There was -- except as to one track, there was some sand on one track and they also found as to that particular track that -- that we were wrong and that the highest and best --
Potter Stewart: But as to the estimate line share of the property, there was no controversy.
Denver W. Meacham: That is correct, but they were, Justice Stewart, detailing the steps that they were following, which is just what the Government wants them to do. There --
Potter Stewart: The Government wants them to do a little more than that --
Denver W. Meacham: Yes sir.
Potter Stewart: Or this case wouldn't be here.
Denver W. Meacham: That's right. They -- they gave the highest and best use. They gave -- they said, “Now, we're going to do it on the basis of the difference in the fair case market value. We aren't going to pay any attention to any airplane activity above the ceilings which are placed on this line.” They said, “We did not feel that there was any sufficient proof of any use as to the sand on two of the tracts involved in here.” Now, the Government now, at this time, says this in their briefs in this Court, they say, “We want the Court to say what was the market value of the land before the taking.” In their objections to the report, here's what they say. The reports wholly fail to make specific findings as to the facts on which the commission based its evaluation and failed to show how they applied applicable principles of law to the facts in reaching their ultimate conclusions. The reports wholly fail to show that all comp -- incompetent and inadmissible testimony was disregarded. The reports wholly fail to show how controverted testimony was resolved, if it were, in arriving at evaluations and are, therefore, deficient and inadequate. The reports taken as a whole amount to no more than a general verdict of a jury since no specific findings of any controverted issues were made, the only specific findings being as to those matters which were stipulated to by the parties to this action. Therefore, the reports are wholly inadequate to furnish an adequate basis for you by the trial judge or an appellate court. Now, our contention is that the Government is inconsistent. The Government in the report that the commissioners make says, “You gentlemen should be specific and explain your arithmetic. You should explain your philosophy as you reach this result.” On the other hand, when it comes to objecting to the report, they say just a broad objection is sufficient and, to me, that's inconsistent. The notion of a commission, and incidentally the Government has always objected to the enactment of this rule, the notion of a commission is in people like my clients who live 100 miles away from where the district court sets whose land is there, that this commission can come out and look at the land and get a better notion of it and thereby expedite the payment of just compensation. Now, in this particularly case, the fact has been just to the contrary. We have people with a total award of $27,183 who'd been in litigation for eight years when their property was taken in March of 1956. If -- if the notion of the rule is to expedite, then the Government at the time it accepts to the reports should say, “Fellows, why didn't you say the before and after market value? Why didn't you say these other specifics that they now ask for the first time that go in this report?” If they had have asked for those things, the commission would've supplied them and that would all be all there was to this case. Now in the matter of the report itself and as Justice Goldberg was approaching the problem a minute ago. Here's the picture I give. I'm a commissioner. I try this suit. The landowners testify. In this case, the landowners somehow made a limit of their 50 years and just because they're party to the suit doesn't make them lawyers, it doesn't make them completely incompetent, but you do take what they have to say with a grain of salt. The landowners testify, Mr. Wilcox testifies, the Government has an expert to the Kansas City of Missouri who lives 500 or 600 miles from this. He testifies, a very expensive expert. The Government has another expert testify. You have these various experts testify. I hear this testimony. And then, I get out and I look at this land. I look at the property that is involved in comparable sales and I take that into account. And then, of my own -- I make a decision as to this value. Maybe this landowner, I say he's -- I'll take what he says with a grain of salt or he didn't have the right notions about it. I will -- I'll pay 10% to him. I'll pay 50% to him. I'll pay 30% to the fact I viewed the property. I'll do all these things. Well, surely, it's not necessary for the commission to give weight to these various things that entered into their decision. In this case, the District Court felt that there was sufficient findings of fact and conclusions of law to enable him to review the decision. Judge Phillips and Judge Picket and Judge Lewis in the Circuit Court of Appeals examined these findings of fact and conclusions of law and they felt that there were sufficient things that would make it possible for them to review these findings as to the amount of this compensation and not have any feeling that the commission grabbed the value out of the sky or anything of that sort. It is admitted by the Government that all of these values are well -- there is no contention that these values are excessive. All of these values are well within the range of the testimony. It's also when you read this very dull looking and very tiresome record which is an imposition on you gentlemen, you find that there is various little references in the Government brief that things that the commission did that was wrong. For instance, they said they took the testimony of the authors. You find in this record when you read it that, at pages 74 and 118, there's only two references of authors. One of them, the Government -- the only thing involving authors was -- thank you, sir.


Warren E. Burger: Number 728, Dickey against Florida will be the next case heard. Mr. Buchanan, you may proceed whenever you're ready.
John D. Buchanan, Jr.: May it please the Court. The nature of this case is one where the petitioner was convicted of a robbery charge, sentence to 10 years in the State Penitentiary. The trial had been delayed for a period of eight years. The case was duly appealed to the Florida District Court of Appeals, raising the constitutional question, the Sixth Amendment. The issue in this case before this Court is whether the petitioner was denied the right to a speedy trial is guaranteed by the Sixth Amendment to the Constitution United States to put this case in proper perspective. This is a continuation of what developed in Smith v. Hooey. I would like to discuss the facts first as they're most important. 28th of June, 1960, a robbery occurred in Gadsden County, Florida. On the 1st of July, 1960, a warrant for the petitioner's arrest was sworn at. At that time, petitioner was in the custody of the federal authorities on related charges of bank robbery. The petitioner was in the jurisdiction of Florida from July until September 1960. In September 1960, petitioner was transferred into the custody of the federal authorities and subsequently sent to Leavenworth Penitentiary. During the period from July until September 1960, the State of Florida made no effort whatsoever to execute the warrant other than to place it into the hands of the sheriff. Several years expired and in October of the 29th, 1962, the petitioner filed a written demand with the Circuit Court of Gadsden County requesting that he be brought back to Florida or that the charges be dismissed against him. The court in an order denied this request stating that there was no authority upon the State of Florida to return petitioner to Florida to stay in trial since he was detained in federal custody, and that he was there because of his own doings. Petitioner subsequently filed two more written demands. He filed one in April 1963 and another in March 1968. After that, the petitioner filed original mandamus proceedings in the Florida Supreme Court, and the Florida Supreme Court in a decision held that either Florida had to return petitioner to stay in trial or else to drop the detainer charges against him. Petitioner then filed a motion to dismiss in September 1, 1967, requesting that the charges be dropped against him. There was no action on this motion. The state in an ex parte order on December 15, 1967, obtained an order from the trial court having jurisdiction which ordered the petitioner back to Florida to stay in trial on January 23, 1968. Petitioner was brought back into custody on that date. And on that date, an arraignment was held and he was ordered to trial on that Friday, but over objection of counsel, the trial was continued until January 31, 1968. On January 30, 1968, the petitioner filed two motions. The first motion was a content motion for a continuance based upon the fact that he was unable to locate two defense witnesses; one by the name of Dolan who would have cooperated certain testimony that he had been in the place that had been robbed, and another by the name of Strickland who would have testified that on the night that the robbery occurred in Florida that the petitioner was in Waycross, Georgia. The court granted the motion for continuance, and on the same date, the petitioner filed a motion to quash the information based upon the fact that he had been denied the right of speedy trial. The court withheld ruling on this motion. He also filed with the motion an affidavit stating that one of his witnesses had died in 1964. On February, the court then continued the trial of the case until February 13, 1968. On February 12, 1968, the petitioner then filed another motion for continuance based upon the fact that one Strickland and aid by Strickland still could be not located. By that time, the witness Dolan had been located, had been subpoenaed for the trial. The court on February 13, 1968 denied the motion to quash based upon the constitutional grounds and ordered petitioner to trial. During the course of the trial, the deputy sheriff who testified for the state, testified that he had destroyed the notes that he had taken down in connection with the description given to him by the victim when the robbery had occurred, which brings us to the contention in this case. As we're dealing with the Sixth Amendment case and in all criminal prosecutions, the accused shall enjoy the right to a speedy trial. As I mentioned previously, this picks up where Smith v. Hooey left off decided by this Court last term. Now, the general reasoning has been that where a person can show that there is prejudice to the defense, this has been sufficient to establish that the defendant would not get a fair trial. If in fact he could show that witnesses were dead or missing, that witnesses couldn't be gotten in time for the trial. Now, the State's contention is, in this case at one, they gave the petitioner a speedy trial, and two, there was no prejudice to the defense. It is our position that there was a prejudice to the defense because of the eight-year delay because that a witness was unavailable to support the petitioner's contention, and three, that a witness had died, and four, that vital evidence had been destroyed not maliciously by the state, but simply because as the Deputy Sheriff said that he didn't know when this man would come to trial. Now, 20 year --
Potter Stewart: I thought there's a statute limitations I suppose for robbery in Florida.
John D. Buchanan, Jr.: Pardon me Mr. Justice.
Potter Stewart: I suppose there's a statute limitations for robbery in Florida, is that right?
John D. Buchanan, Jr.: Yes sir, but the statute of limitations said and told in this case, that is --
Potter Stewart: It's told when he's out of the state. And when does it begin to run, at the time of the indictment or at the time of what?
John D. Buchanan, Jr.: The statute of limitations in Florida is told when the warrant is placed in the sheriff's hands, and that stops whether he's in the state or out of state.
Potter Stewart: It's told?
John D. Buchanan, Jr.: It's told.
Potter Stewart: Told, as I understand that word means it's suspended, --
John D. Buchanan, Jr.: Yes.
Potter Stewart: It stops running?
John D. Buchanan, Jr.: Yes sir.
Potter Stewart: And now you say it's told when the warrant as placed in the sheriff's hand, I don't understand really.
John D. Buchanan, Jr.: Yes sir, the case that we have cited in the brief which is Rosengarten versus State.
Potter Stewart: But when does it begin to run in Florida, at the time of the indictment ordinarily, forget this case, just -- let's talk about an ordinary robbery case in Florida when the man presumably remains in Florida. What is the statute of limitation?
John D. Buchanan, Jr.: My understanding of it --
Potter Stewart: What is the statute of limitations? How many years?
John D. Buchanan, Jr.: Two years. On a non-capital case.
Potter Stewart: And when does it begin to run?
John D. Buchanan, Jr.: It begins to run as soon as the offense is committed.
Warren E. Burger: So under your statute as you described the sheriff has got the power to told. The statute just by holding a warrant and deliberately not --
John D. Buchanan, Jr.: Yes sir. The way I understand the ruling is in Florida.
Warren E. Burger: Even if the defendant is within the jurisdiction.
John D. Buchanan, Jr.: Even if the defendant is within the jurisdiction because the defendant then has the availability of Florida statutes, 91501 and 91502 which gives him the right to demand trial and push the case alone.
Potter Stewart: So in the ordinary case, within two years after the offense is committed, the warrant has to be placed in the sheriff's hands?
John D. Buchanan, Jr.: Yes sir. Now, if the defendant is out of state, no warrant has been placed in the sheriff's hand. Then, that withhold the statute of limitations in this absence.
Potter Stewart: His absence from the --
John D. Buchanan, Jr.: Yes sir.
Potter Stewart: Right.
John D. Buchanan, Jr.: Now --
Warren E. Burger: You say that party could have had him any time they wanted to?
John D. Buchanan, Jr.: Yes sir. That was constitutional authority. Florida had on its books, 94105 which was a statute permitting it to obtain a prisoner from another state. Now, I would like to point out --
Warren E. Burger: Is that a regular extradition process if he is a person in custody?
John D. Buchanan, Jr.: No sir. This would be a little different proceeding, 94105. Now, Florida had not. Now, this case went to the Florida Supreme Court. Florida had never ruled until the Dickey case went to the Florida Supreme Court of whether the state had a constitutional duty to bring an individual back from another state who is in some type of custody. In Dickey v. -- the Circuit Court of Gadsden County which is cited in the brief, the, the Florida Supreme Court held that the State had the constitution of duty to bring an individual back to Florida.
Thurgood Marshall: Isn't it true that they bring him back to the nearest federal penitentiary? The federal Government does bring him and close to the county as possible and then let's the county come and pick him up?
John D. Buchanan, Jr.: Yes, sir, that is correct.
Thurgood Marshall: And that could have been done --
John D. Buchanan, Jr.: That could've been done here even without the decision in Dickey versus The Circuit Court of Gadsden County, yes Your Honor. Now, the discussing the question of the prejudice in this case, we have not dwelt on this in any length because I think the decisions are apparent to this Court. There's -- on page 17 and 18 of our brief, there are a number of decisions where there is shown prejudice to the defense. Another argument may be made that assuming that all witnesses were present, would this still have been prejudicial in this case. We contend it would've. We contend that anytime there is a lengthy delay that the guilt determination process is eroded simply because of virtue of the fact that witnesses forget as the years pass what they're supposed to remember in order to testify to. And obviously, the guilt that obviously the right of cross-examination is lost to the defendant. The trial itself literally becomes a mockery because the witnesses cannot recall events that had happened many years ago. Now, in the case of Klopfer v. North Carolina, which was decided by this Court, the commentators have said that there has been no prejudice discussed in this case, but we do note that as noted by this Court in Klopfer that the delay which an accused is subjected to that his movement, his freedom of movement is curtailed, the suspicion that he committed the crime, that the community is actually interested in an early trial, and that these factors are sufficient among the others to show that there was prejudice and in this case to Mr. Dickey. Now, I would like to point out that the respondent claims that the petitioner, Dickey, did not comply with the Florida statutes. Florida has on its books 91501 and 91502. In 91501, if a person is free and he can demand trial in three terms of court, and if he complies with these statutory regulations and he is not brought to trial within three terms of court, then the charge is dismissed completely and forever barred. Now, 91502 says the same thing except for a person who is in custody. Now, the State of Florida contends that the petitioner never complied with these statutes and we will agree with that and there is no argument. But I would like to point out to this Court that when the petitioner filed his written demand with the court having jurisdiction the first time it was laid, when he filed his second demand, that he was right on time but that court then said, “We have no authority to bring you back from another jurisdiction.” So he was neither fished nor found. He couldn't get the benefits of the Florida statutes that which the other people who were incarcerated and present in that state were entitled to and who could've had a speedy trial. So I don't think the argument that he failed to comply with the statutes is sufficient.
Speaker: What is that, a waiver argument?
John D. Buchanan, Jr.: Yes sir. We're contending that there was no waiver here on the part of the petitioner because he filed his written demand, even though he didn't track the Florida statutes. We're also contending that the state is contending that he got a speedy trial. We're saying that an eight-year delay is not a speedy trial. We're saying that the factors in this case of the dead and missing witnesses that the destruction of the notes are sufficient in itself to show a prejudice to the defense.
Hugo L. Black: Where was he during that eight years?
John D. Buchanan, Jr.: He was in federal prison Your Honor, Leavenworth and Alcatraza prison.
Hugo L. Black: For what?
John D. Buchanan, Jr.: Bank robberies which he had pled guilty to in Florida, but they were federal charges. The state has also raised a contention that he should not have applied or gone about raising the question of the right to the speedy trial after conviction. The state is contending in their brief that he should have by the writ of prohibition. The answer to this is that our office was appointed to represent the petitioner on January 23, 1968 at the time of arraignment, and the trial court at that time set the trial which was a matter of eight days later that we did not have the opportunity in which to raise these questions by writ of prohibition. Now, I would like to point out to this Court that already, the trial court had determined that they weren't going to answer the question of whether there's prejudice in the defense when he filed his first written demand for a speedy trial. Now, when this case went up to the Florida Supreme Court, the Florida Supreme Court had before it the factual situation that this man had not been tried in seven-and-a-half years and they refused at that point to answer the question whether there's going to be prejudice to his defense, always deferring back that when you get the trial, then the trial court can make this determination.
Hugo L. Black: When was the first request filed?
John D. Buchanan, Jr.: For the speedy trial Your Honor?
Hugo L. Black: Yes.
John D. Buchanan, Jr.: It was October 29, 1962. So, it is our –-
Hugo L. Black: Was he already in prison in Alcatraz?
John D. Buchanan, Jr.: Yes sir, or Leavenworth, one of the other. So, it is our position that the writ of prohibition route would have resulted in the same thing that this was too premature in order to decide the question of whether this defendant was denied the right of speedy trial. I would like to point a few other matters. The state has alleged that one of the witnesses, Mary McCalcline was not called as a witness at this trial. I don't think this was known to counsel for the respondent, but that she had died in 1960.
Potter Stewart: That wasn't the sister to whom he allegedly made a telephone call?
John D. Buchanan, Jr.: No sir. That was the one which the counsel refers to as the woman who was with him the night that they were supposed to be in Waycross, Georgia, or –-
Warren E. Burger: Would you say that eight years is enough time lapse so that you wouldn't have to show any prejudice at all or prejudice should be presumed?
John D. Buchanan, Jr.: Your Honor, I think –- yes sir. I think you can almost say that in every case that there is some inherent prejudice in extremely long delay. Even assuming that every witness was there, even assuming that the documentary evidence was there. I think it's inherent. It's just a common known fact that delay itself fades the memory of people. I recall of a book by Mr. Francis Wellman, The Art of Cross Examination, where a little mock scene was demonstrated before the class he reports and then different conflicting reports, and there, it was only a matter of a few minutes. For the reasons –-
Byron R. White: What do you suppose that --
John D. Buchanan, Jr.: Your Honor –-
Byron R. White: It doesn't reveal --
John D. Buchanan, Jr.: It really doesn't because most of the commentators have said that the benefit ignores to the defendant. I think this is erroneous. Once you get down the line, you're taking a gamble. They can ignore to the detriment of either the defendant or to the prosecution. Well, if it adored to him, obviously -– let's assume that he would go for the not guilty type of situation, but in that case looking at it in its broad perspective, I don't think the answer justice are concerned. We're not getting a fair trial at that point. It suddenly becomes a gamble. Who can outlast who? Whether the prosecution can outlast the defendant or the defendant can outlast the prosecution? So you're literally losing that, the way I understand, the adversary system, the very vital thing that this is an attempt to get at the truth. And when you get the situation there, I don't think you can say either side about this Your Honor. Now for those reasons, request of the District Court of Appeal decision be reversed and that the petitioner be discharged from this conviction in sentence.
Warren E. Burger: Mr. Georgieff?
George R. Georgieff: Mr. Chief Justice and may it please the Court.
Warren E. Burger: Would you help me write at the outsets if you could, just some sort you got the fact picture before us. If you'd suggest what to -– what reasons that were, if any impediments that were at Florida in getting this man out of the penitentiary and bringing him back for trial. Did Florida try to do in and --
George R. Georgieff: No –-
Warren E. Burger: Were they frustrated?
George R. Georgieff: No. They made no attempt whatsoever to secure his return until after the decision in Dickey was rendered by the Florida Supreme Court, none whatsoever. At that time, Mr. Dickey petitioned on a mandamus proceeding to say look, make it or miss. Either get me back down there and try me, or get this detainer off my back so that I can get parole from the federal authorities. Now, that's the posture which he put his pleading and in light thereof, they issued their opinion which is a part of the record here. On that occasion, Mr. Hopkins, the State Attorney, secured an order to have Mr. Dickey return for purposes of trial. He was brought back and as Mr. Buchanan explained, the results that follow did follow. Now on the first occasion when an attempt was made with the federal authorities to get him back, they complied and we did get him back, tried and convicted him and he sits in (Inaudible).
Speaker: So, that's (Inaudible) had to have the authorities who tried earlier would've had been the same result?
George R. Georgieff: Yes and back home again I guess yes, it does. Now, the question –-
Warren E. Burger: Can you suggest any hypothesis as to why this was not done?
George R. Georgieff: Only because there was no duty to do it constitutionally, either at the state or federal level. Until Dickey in Florida and Klopfer here, there was never any commandment that you do this. Now, there were times when you approved cases in which a complaint was made regarding a speedy trial at the federal level. There were times when you disapproved them, but you never did it under a constitutional mandate. Florida never did it until Dickey, and that's why I took the position of Judge Taylor to whom these complaints were brought, and I call them complaints because they weren't demands for a speedy trial. I call them complaints and I say that he was not in error is because as occurred with Gideon, many people bore the brunt of that who perhaps properly didn't deserve it. Now, that's neither here or there; it's done. But it's a little unfair to say to somebody you should've done this because you were compelled by law to do it when even you haven't said that that was the case. Now, I am sure that Judge Taylor doesn't need my personal protection, don't misunderstand, but if we're talking about the man having a right, I say that it came into being first when you rendered your decision in Klopfer and then when Dickey acknowledged that out of our Supreme Court said now in light of Klopfer, it is now a situation where when you do make a demand, we are saying –-
Byron R. White: What year did we decided about this?
George R. Georgieff: '68.
Byron R. White: '68?
George R. Georgieff: Yes.
Byron R. White: Is this the fact of the argument that the Klopfer should not be retroactive?
George R. Georgieff: Oh yes.
Byron R. White: That's --
George R. Georgieff: Oh yes. I don't have to mislead you about that. I can't hide behind it.
Speaker: Now, if there was any such thing as a due process, right?
George R. Georgieff: Well, I can't say that Mr. Justice Harlan because how do I explain those situations in which you did grant relief before Klopfer you see? Now, let me put it this way, suppose we have a gross situation of a man who committed a crime some 20 odd years ago and through some dodge of one kind or another, and he lived in asylum pure life and between it, it was brought to you on very painful circumstances. I remember of myself from losses that I've suffered here myself that as often is not these things have an effect on the decision making process. After all, when it is a gross situation, the state is fair game and perhaps they should be since they do have the power. But when you do have situations like that, you haven't backed away from it. I simply submit that Klopfer was not retroactive and ought not to be because if we don't go to that situation, then the situation becomes one in which everybody will say, “Well now look, you got me in jail as a fourth time loser and the last three times, it was four-and-a-half years before they tried me. I have a right to be out and you've got to remove the stigma, the fourth time loser, and the life sentence by the way, which is enhanced penalty in Florida.”
Thurgood Marshall: There wouldn't be this case because he asked eight years, didn't he?
Speaker: Well, counsel says he asked and it may be that you'll decide that he did. I contend that he did not.
Hugo L. Black: Is it in –-
Thurgood Marshall: Didn't the judge say that I will not do this because you have absented yourself from the state voluntarily?
George R. Georgieff: That was a part of the order Mr. Justice Marshall, but that's not the predicate for his conclusion.
Hugo L. Black: Is there a record, the statement of why you requested it?
George R. Georgieff: I beg your pardon, sir?
Hugo L. Black: Does the record contain a written request from him for a trial at any time?
George R. Georgieff: It contains three writings Mr. Justice Black and I don't call them demands because I don't think they are. It contains –-
Hugo L. Black: They are all requests.
George R. Georgieff: No. He puts it in the alternative.
Hugo L. Black: What is his alternative?
George R. Georgieff: Bring me back or take away the detainer, one of them he says, “Try me or release me.”
Hugo L. Black: Where is that?
George R. Georgieff: On page 9 of the appendix Mr. Justice Black, the next to the last paragraph reading.
Hugo L. Black: Is that the only one?
George R. Georgieff: Well, that's the one that would be pertinent to your inquiry, I think. I'll read you the others if you like. Your petitioner now moves and phrases honorable court to cause petitioner to be brought to appear before it by means of the proper process of the law, namely a writ arising out of this Court ordering petitioner before it for a trial by jury or that an order be issued dismissing said charge.
Hugo L. Black: What date was that?
George R. Georgieff: That was on –-
Warren E. Burger: '62 --
George R. Georgieff: 29th of October, '62, that was his first one, 30 months after he went to jail.
Speaker: Is that fully prepared request for the trial?
George R. Georgieff: I beg your pardon, sir?
Speaker: Is that fully prepared request for the trial?
George R. Georgieff: Oh yes, it is.
Speaker: I thought you said that you didn't have any request.
George R. Georgieff: I said there was one of the three.
Thurgood Marshall: How about the one in '55?
George R. Georgieff: '55?
Thurgood Marshall: Yes sir.
George R. Georgieff: This didn't occur until 1960 sir.
Thurgood Marshall: Oh no, that's right, 29th of October, '62.
George R. Georgieff: That's just the one I read sir.
Thurgood Marshall: Yes. Well, did you read that he asked that above named respondent to permit an immediate trial in order to enable your petitioner to properly protest his right as guaranteed under the Constitution of the United States?
George R. Georgieff: Except that it wasn't guaranteed until Klopfer.
Thurgood Marshall: But he's asked -– if this is the way he's asked, was any doubt that when you read this that he's asking for a speedy trial.
George R. Georgieff: Well sir, now, I've got to be allowed to go back to 91502, and if I am, then there is considerable doubt.
Thurgood Marshall: Really?
George R. Georgieff: After all, let's say we have a paid defendant and he's hired counsel who's very expensive and very good and very efficient. No Court would suffer the man that complained about a demand for a speedy trial unless he met the requirements of 91502. I submit that Dickey is not a super class citizen just because he didn't have a lawyer. Now, if we hold the pace --
Thurgood Marshall: Where was he at 50 -- what was it, '62?
George R. Georgieff: He was in Leavenworth or Alcatraz, I'm not certain.
Thurgood Marshall: Well, wasn't' one of them filed while he was still in Florida?
George R. Georgieff: No sir.
Thurgood Marshall: In the federal penitentiary?
George R. Georgieff: No sir.
Byron R. White: Mr. Georgieff, did you say that's the only explicit demand for jury trial or at least that he made?
George R. Georgieff: I think so, that wasn't an alternative.
Byron R. White: What's this at page 17, this apparently is another petition being sworn to (Inaudible) in 1963?
George R. Georgieff: Alright sir.
Byron R. White: It wasn't the same one, wasn't it? To be brought and appeared before it by means of proper process of the law?
George R. Georgieff: He copied that paragraph.
Byron R. White: -- with arising out of this Court order the petition of report for the trial by the jury?
George R. Georgieff: He copy --
Byron R. White: Put that in order the issue that this was --
George R. Georgieff: He copied that paragraph.
Byron R. White: Well, he copied, he didn't lie, the second time --
George R. Georgieff: Alright.
Byron R. White: -- explicitly demanded a trial or release, wasn't it?
George R. Georgieff: That's correct. That one was right on the book and on the first day of the turn, the first one was 28 days late. The third one spanned 36 months before he made it after having made the second one. Now I ask you, he talks about prejudice. I don't mean to question you of course but I ask the question. Where is the prejudice if he waits 30 months before he makes his first demand if the passage of time is what we're asked to believe as the predicate?
Warren E. Burger: Well, if he got it then, he might not be complaining now.
George R. Georgieff: That is a fact, and if he got the third time running, he certainly wouldn't have had any trouble coming here, or if he'd raised it by prohibition, he wouldn't be sitting in Raifordre for today.
Thurgood Marshall: He didn't know about it?
George R. Georgieff: Didn't know about what sir?
Thurgood Marshall: The law.
George R. Georgieff: He had a counsel at that time.
Warren E. Burger: Now, you speak --
Thurgood Marshall: The counsel didn't know about it.
Warren E. Burger: You're referring to the time factor counsel. I thought I remembered one English case which is cited in the Court of Appeals in recent years in which they held that two years. It wasn't inherently oppressed at the time beyond which, there could be no delay without per se prejudice. I hear that you've got eight years.
George R. Georgieff: Well, I understand it --
Warren E. Burger: And does that State of Florida have any hypothesis as to why they could not have brought him back and tried him promptly?
George R. Georgieff: Well sir, I don't put it on the basis of that they have no way in which they could.
Warren E. Burger: But then --
George R. Georgieff: Obviously, if they didn't, we wouldn't even be here.
Warren E. Burger: Oh, but isn't -- apart from the Fourteenth Amendment Due Process Clause and any in the speedy trial provisons didn't it just simply basic sound administration in prosecutions to try these cases promptly and get them out of the way? I'm frankly very puzzled by the delay of that length.
George R. Georgieff: Well, it depends on whether we call it a delay.
Warren E. Burger: Well, eight years look like a delay? I --
George R. Georgieff: Well, it's an interval -- it's an interval with which I would rather not be saddled but I am. I didn't make it just as Mr. Buchanan inherited the situation as it came.
Warren E. Burger: I wasn't undertaking the tax you would --
George R. Georgieff: No, no sir.
Warren E. Burger: -- either you could offer a hypothesis.
George R. Georgieff: But perhaps, I can put it this way and make it a little more palatable, I don't know.
Byron R. White: (Inaudible)
George R. Georgieff: By all means, go ahead Mr. Justice White.
Byron R. White: What was the charge upon if he gets to Mr. Georgieff?
George R. Georgieff: I don't know. That's a good question. December 15, 1967 is when the information was filed by the State Attorney. That means that it was tried within 55 days of that charge. Now, comes the question of what are we talking about. Are we talking about July 1, 1960 or are we talking about December 15, 1967? I cannot resolve that for you. All I can do is tell you that if Dickey had been brought back in 1963, what would he have been brought back to? I'll tell you what -- award that had never even been served on him by the U.S. Marshal. Now, Mr. Justice Stewart inquired I think of Mr. Buchanan as to statute of limitations. Well, all the replies are accurate, except that when it's served, is when the thing goes into effect for purposes of tolling the statute. Now, they gave it to the U.S. Marshal. He declined to take it at Marianna where they were keeping him as a federal prisoner on the Malone bank robbery. He said, “Wait until we get him assigned to a federal institution after his plea. Then you send it in and, then we'll serve it on.” Lo and behold, that's what they did but nobody ever served it on him. They simply put it in his file as a detainer and that made the predicate for the complaint that he wanted to get out from under that detainer and subject himself to parole if the federal authorities were going to give it to him. Now --
Thurgood Marshall: That's right when he was taken about --when he was at Marianna, the state could have taken him then.
George R. Georgieff: No, they could not sir.
Thurgood Marshall: With the permission of the federal authority?
George R. Georgieff: No sir.
Thurgood Marshall: Why not?
George R. Georgieff: Well, because he was being held for trial by the federal authorities on the Malone bank robbery.
Thurgood Marshall: Yes, where was he tried?
George R. Georgieff: On that charge?
Thurgood Marshall: Yes sir.
George R. Georgieff: I would assume in Marianna.
Thurgood Marshall: After that, couldn't the state have asked for those crimes?
George R. Georgieff: Well now, they asked to serve the warrant on him Mr. Justice Marshall.
Thurgood Marshall: Petition for writ of habeas corpus and prosecute him. They could have asked him right then and then.
George R. Georgieff: But now, you're talking about within 10 days.
Thurgood Marshall: I think speedy means speedy.
George R. Georgieff: Well, how about one day? I'm not being funny but really, we got a statute that says three terms of court, presumably unless you strike it down as being oppressive, if we meet that, we're at business.
Thurgood Marshall: My point is, the old question was, you rely on the fact that he was taken out of the state by the federal authorities.
George R. Georgieff: No.
Thurgood Marshall: I'm asking you, couldn't the state have said to the federal authorities, leave him here so we can try him on our charge.
George R. Georgieff: I understand sir, but they didn't because the federal authorities wouldn't even accept the warrant for service on demand.
Thurgood Marshall: They don't have to accept the warrant. I'm saying, the local procedure which is set out in Smith and Hooey of how you get a federal prisoner. And it's undisputed, they were never asked for the federal authorities have turned the prisoner over.
George R. Georgieff: Well, I'm stuck with the fact that that wasn't done no matter what our positions, where he becomes is what we did a constitutional deprivation of a right that you recognized in Klopfer or isn't it?
Thurgood Marshall: Well, as I understand it, you allowed -- the eight years would allow that the federal feature took it out of the state and that's true among the 01 instead of 02, instead of 01.
George R. Georgieff: That's correct. But imply but, it would have been 02 all the same if he were a prisoner not in federal custody, it simply has to do with one at liberty or one in custody you see. And that my point that up because we have a case called Lloyd versus Grayson and it's possibly eight or nine years old, maybe a little older in which a man out on bond complained because he hadn't been tried in 25 terms of court. And they said, look man, if you didn't make a complaint about it, when you are out enjoying your liberty and the custody (Inaudible), you can't be heard to complain about it. I don't rely on that, you know, but the difference is --
Thurgood Marshall: Because here, he did ask three different times.
George R. Georgieff: Yes, but he did it badly and not in accord with the law. I've got nothing left but that. Now, either he is required to follow that or he is not, I contend that just because he is in a federal penitentiary, doesn't excuse him from complying with it, especially since he waited 30 months before he complained --
Thurgood Marshall: What is that he didn't do? He didn't come there in person?
George R. Georgieff: No sir. 91502 says, within 30 days of the first day of each term of the court in which you're going to be tried, you file a demand for a speedy trial, serving a copy on prosecution for each of three successive terms, and if they don't do it, you're home free. Now, he didn't do that. Now, that's not an oppressive requirement, not of him or anybody else. Nobody says you have to do it in beautiful words in this or that setting, just do it.
Thurgood Marshall: All that is to let this Court know that you are pushing it?
George R. Georgieff: No, the prosecution not the court.
Thurgood Marshall: Oh, the prosecution.
George R. Georgieff: Yes sir. The court doesn't decide when he is to be tried, prosecution does. The State Attorney has the option of doing it or not and the court can't force him to do it at least in Florida. Now, that may sound peculiar but in the last analysis, he functions pretty much as a grand jury does. Suppose they don't want to indict. No court can make him indict. And that's how we have the peculiar situation. That's why we have to have the individual advice of State Attorney or the solicitor as the case maybe. Look, I am pressing for a trial and I want it now or I want it out for a month, that puts him on notice, but that did not happen here.
Hugo L. Black: Well, we had three notices, didn't he?
George R. Georgieff: Well, spanning some seven years sir.
Hugo L. Black: What?
George R. Georgieff: Spanning a total of seven years.
Hugo L. Black: Yes, spending over at all.
George R. Georgieff: That doesn't sound like the man is complaining.
Hugo L. Black: (Inaudible).
George R. Georgieff: What?
Hugo L. Black: Who did they go to? Who did those notices --
George R. Georgieff: They went to the Circuit Court, to the judge.
Hugo L. Black: Circuit Court, to the judge?
George R. Georgieff: That's correct. In all three instance Judge Hugh Taylor.
Hugo L. Black: The writ of habeas corpus ad prosequendum.
George R. Georgieff: Yes sir. And I'll tell you why that's not the proper vehicle.
Hugo L. Black: Well, that's a proper one or not is in fact as good as the layman would know it.
George R. Georgieff: Well, here we go. We're saying that whether it's proper or not or whether it was timely or not, why are we bothering with answers, we're talking about eight years. We could lay it on the --
Warren E. Burger: It was a signal to the court that he wanted a trial each time they heard from him, was it not?
George R. Georgieff: Oh yes.
Warren E. Burger: And you say that the prosecutor hasn't control. You say that there's been an inherent power and a corresponding duty on the court to see that cases are tried promptly no matter what the prosecutor does?
George R. Georgieff: Well, I know of no way in which a charge can be filed by the court Mr. Chief Justice.
Warren E. Burger: The court has got the power but the prosecutor doesn't, he would just call him and say put this case down next term or I'll dismiss it?
George R. Georgieff: Well look, they can lean on him. Of course they can.
Warren E. Burger: And they do?
George R. Georgieff: On occasion, I'm sure that they have at least I know that I have been done and properly so most of the time. But I don't back off on that. The point is, here's the man complaining and he says, “Look, I ought to have a speedy trial. The first thing that he didn't do was to move forward when he could have. He had 30 months within which he would have had 12 remaining.
Hugo L. Black: But he did do it three times, didn't he?
George R. Georgieff: Well suppose Mr. Justice Black, he'd awaited 25 years to do it three times.
Hugo L. Black: But he's got to do it at a certain particular date and certain that hour of the day and the certain day of the month?
George R. Georgieff: No, just within 30 days of the first term -- first day of the term.
Hugo L. Black: Just within 30 days and then he can do it again, can he?
George R. Georgieff: Yes, he can.
Hugo L. Black: Would you mind telling me when the warrant was sworn out?
George R. Georgieff: July 1, 1960.
Hugo L. Black: 1960.
George R. Georgieff: June 28, I'm sorry and that was served on the first.
Hugo L. Black: What happened to it then?
George R. Georgieff: It was lodged with the U.S. Marshal's office in Marianna.
Hugo L. Black: U.S. Marshal's office.
George R. Georgieff: That's right.
Hugo L. Black: And never was filed in the state court of it, was it?
George R. Georgieff: No, because it -- no return made on it had been served.
Hugo L. Black: Are you arguing that as a defense that it was not filed in the state court?
George R. Georgieff: Well, I will argue anything that I think I can use.
Hugo L. Black: I understand it but are you arguing?
George R. Georgieff: No, I'll tell you this very simple.
Hugo L. Black: What is your defense?
George R. Georgieff: My defense is very simple that he has waived his right to complain about it because he didn't meet the requirements of 91502.
Hugo L. Black: By filing a certain notice on the 91502.
George R. Georgieff: Three times running, yes.
Hugo L. Black: Three times running.
George R. Georgieff: That's what the statute says sir.
Hugo L. Black: When he did it three times running, they ran over several years.
George R. Georgieff: Ran over quite a few years and I might add --
Byron R. White: Where did you get discouraged -- gotten over the first 62 or 63?
George R. Georgieff: It's possible that he didn't want to go to trial until somebody else died.
Byron R. White: I asked you though, but suppose --
George R. Georgieff: I don't know.
Byron R. White: -- why did you discourage --
George R. Georgieff: I don't think so sir.
Speaker: I guess the essence to your position as my understanding is that up until the proper, there is no federal right.
George R. Georgieff: That is correct sir.
Speaker: That all he had up to the Klopfer was the state right and he didn't comply with the terms and state statute?
George R. Georgieff: Exactly.
Speaker: And then, following the Klopfer, your court moved into actual Klopfer --
George R. Georgieff: Virtually, immediately. They acknowledged what you said in Klopfer as their predicate, said alright Mr. Hopkins, either make it or miss, he made it.
Hugo L. Black: What did Klopfer hold?
George R. Georgieff: I beg your pardon -- well, it was literally an automatic reversal, you didn't discuss prejudice. He said I would have to assume that you're talking about the delay of time. It becomes a commandment under the Sixth Amendment. What you did is extended protection.
Hugo L. Black: But the Sixth Amendment was in effect all of that time, wasn't it?
George R. Georgieff: I beg your pardon?
Hugo L. Black: The Sixth Amendment was in affect at the time the warrant was sworn until he finally filed his last notice, wasn't it?
George R. Georgieff: Well certainly, the Sixth Amendment was there, but I understand what you mean by in effect sir.
Hugo L. Black: Well, wasn't -- it was all in the book wasn't it?
George R. Georgieff: Well, of course.
Speaker: Your find is that although it was on the books -- it was on the books against the federal Government and not against the state.
George R. Georgieff: That is a fact and I think that is what I said in my brief that Klopfer makes no difference except as to those states which had no state provision regarding speedy trial. That gave a complaining individual a right to come to you with, although the federal violation as you enunciated it in Klopfer. Until you did, all that can be said is the Sixth sat there until you decided that it was going to be applied to the state through the Fourteenth. Now, I don't need to be evasive but that's what I understand you did in Klopfer. Now, if he didn't meet Florida's requirement at a time when he could have and secured his relief and didn't have the option of doing it under Klopfer because all of his moves had been made by then, then I submit that our court was not in error, and his demand for a speedy trial was made at a time when he had no assurance without compliance with the state law or guarantee under the federal that he was going to get it simply by the passage of time.
Thurgood Marshall: You have a point, the judge never mentioned the fact that this piece of paper didn't comply with the Florida rules?
George R. Georgieff: Once again, I would say like I did the last time I was here in November, it doesn't make any difference that he did or didn't Mr. Justice Marshall. The outcome was correct whatever his reason. Now, I don't like to say that on one side top and bottom on the other, but I have to take the order as I can support it without the regard of what he said. Conceivably, he could have said something which simply didn't make any legal sense and it might never less have been a good order. So, very simply I would say, we talk about but Strickland and he talks about prejudice -- do we have to assume that if but Strickland was there to testify it, he wouldn't be complaining about the loss of memory? I don't think so. I think he waited and he waited conveniently. Now, his sister died --
Hugo L. Black: He sent these notices. He didn't wait that long, didn't he?
George R. Georgieff: Until his third one?
Hugo L. Black: Well, the sent -- first and when was it?
George R. Georgieff: The first one was in '62, 30 months after he was jailed.
Hugo L. Black: About two years.
George R. Georgieff: About 29 months -- 30 months. So, he wasn't so much interested in a speedy trial then.
Hugo L. Black: Well, he asked for it.
George R. Georgieff: Yes, but 12 months after he would've been out for (Inaudible) you see. Three terms the Circuit Court run 18 months.
Hugo L. Black: If he had known the state law, he probably didn't know anything.
George R. Georgieff: I beg your pardon.
Hugo L. Black: He probably didn't know the state law --
George R. Georgieff: He sure did know it.
Hugo L. Black: He did?
George R. Georgieff: He filed within 28 days of the first and, then on the button on the second and almost did on the button of the third.
Hugo L. Black: Did he cite the state law?
George R. Georgieff: No sir.
Hugo L. Black: How do you know that he knew about it?
George R. Georgieff: Look, I'm assuming. I take the position that he did by virtue of the fact of the time of his filing, but I will go better than that. Suppose that he didn't know it, does he enjoy a better status because he doesn't know it?
Hugo L. Black: Well, I'm just trying to get to how he knew it.
George R. Georgieff: Well, he certainly knew enough to make a demand for a trial when whatever fashion he did.
Hugo L. Black: He used the words of constitution, didn't he?
George R. Georgieff: Oh yes, but I don't think that that's quite enough until what you said in Klopfer. We can always --
Warren E. Burger: Is that your position that this right didn't really attach -- put any duties on the State of Florida until the court spoke in Klopfer?
George R. Georgieff: That's correct at the federal level. Now, in order for him to have a right to complain about a federally assured right to a speedy trial, I contend Klopfer, first put it into effect. If we go back to Florida's time, then he didn't comply with 91502 and the court so stated in Dickey and just as soon as they said, now is the time Mr. Hopkins for you to move, he did move and they got him back. And 55 days later, he was tried. But about the prohibition, I can't stress that too strongly. If it was a fact that this man was not going to be stuffed with flagging memories or anything like that, why didn't he bring prohibition which is available to him? He says that the result would be automatic, what was the point in bringing it? Well, if it is automatic, then that's exactly what he should have done. There's no point in him sitting in Raiford right now under criminal conviction when he knew what the outcome would be and could come to you and say, well now look here, they denied me my prohibition, and on the face of it, I was entitled of a speedy trial because I made these demands. He took a chance and he lost and he doesn't like it. That I understand but it doesn't qualify him for relief under the status of the cases and existence of the time.
Warren E. Burger: Where is he incarcerated now?
George R. Georgieff: Raiford, Florida State Penitentiary.
Warren E. Burger: The federal sentence is terminated in --
George R. Georgieff: I don't know that it is terminated.
Warren E. Burger: Your friend doesn't seem to agree with you. Perhaps, you will clear it that up later with him then.
George R. Georgieff: It's possible that they'll send him back for the federal penitentiary, I don't know.
Warren E. Burger: And what was the sentence in Florida?
George R. Georgieff: I think he got 20 years.
Speaker: Do you think that if Klopfer had to come up on the books and (Inaudible), is there anything wrong keeping him still in the jail without being convicted and giving rise to any constitutional claim?
George R. Georgieff: No sir. Considering the majesty of their order in Dickey and I was on short end of that one, I can guarantee you that it wouldn't have been without regard to Klopfer.
Speaker: That was all?
George R. Georgieff: Oh yes. All I'm doing is guessing -- I don't --
Speaker: Your argument leaves out one very important factor and that is that due process right of this man to have a speedy trial or some kind of the trial that the state affords independently of Klopfer?
George R. Georgieff: Yes, he did. All I say is that we must measure it on the pan with all of what he did and all about which he complains. If you take it isolated, of course he qualifies. Who wouldn't like to come to you and say eight years? Come on -- I think those --
Warren E. Burger: I think we have your point on that. We have your point there.
George R. Georgieff: Alright, I contend that the action of the District Court below should be affirmed or at least this case should not be reversed.
Warren E. Burger: Mr. Buchanan, would you clear, where is the defendant now?
John D. Buchanan, Jr.: Yes sir. The petitioner is presently incarcerated at Leavenworth. His sentence expires in 1971. He was given a 10-year sentence to run consecutively to any presently existing sentences. So, he will not be back in the State of Florida until 1971. I would like to make --
Warren E. Burger: And then he will begin to serve --
John D. Buchanan, Jr.: The Florida sentence.
Warren E. Burger: Nine more years minimum?
John D. Buchanan, Jr.: Good time but his sentence is 10 because the order read consecutively beyond existing sentence. I would like to clear up one point here. Counsel has made the statement that he did not comply with the statutes. The way I read the order of the trial judge on December 1, 1962 even assuming that the petitioner have complied with 91502, this judge would not have returned him to Florida that it wasn't until Dickey versus the Circuit Court which came at and marked but in June 14, 1967, did Florida say, they created a third statute in the sense, and that statute was that people who were incarcerated outside the territorial limits of Florida, could be brought back in for a trial.
Potter Stewart: Do you think before that, this judge even if he complied with Florida statutory provisions would have said, well, later it will apply to you because you're a prisoner outside.
John D. Buchanan, Jr.: Yes sir. That is my position. Counsel has made -- in other words that he had counsel during this period while he was at Leavenworth, he did not have counsel. And for those reasons, I mean -- Your Honor, yes. If this Court -- this is a fundamental right, if this court has said that the Sixth Amendment right is as these fundamental right to counsel, I think that it was always there Your Honor.
Speaker: So by that you mean it is retroactive?
John D. Buchanan, Jr.: Yes sir.
Speaker: Klopfer is retroactive.
John D. Buchanan, Jr.: Yes sir.
Warren E. Burger: Well, is it the Klopfer that's retroactive or the constitution itself in the sense that if Klopfer have not been decided, he had this right?
John D. Buchanan, Jr.: He had this right, yes Your Honor, always.
Warren E. Burger: I suppose that this is a semantical difference, but in this Court, it's an important --
John D. Buchanan, Jr.: -- I understand. I have no further --
Warren E. Burger: Thank you Mr. Buchanan. The case is submitted.