Warren E. Burger: -- in number 71-237, Mancusi against Stubbs. Mrs. Marcus, we'll pause for a moment until Mr. Carpenter gets settled. Mrs. Marcus.
Maria L. Marcus: Mr. Chief Justice and may it please the Court. This habeas corpus proceeding presents the question of whether New York is prohibited from using a 1964 Tennessee murder conviction as a predicate for increased punishment. This Tennessee conviction resulted from a retrial where the prior recorded testimony of a witness was read into the record because the witness had since moved to Sweden. To state briefly the history of the Tennessee and New York proceedings, the crime of which respondent Stubbs was convicted was a 1954 murder of Mrs. Alex Holm. Stubbs met Mr. and Mrs. Holm, an elderly Swedish couple who were strangers to him at a road side picnic table. He kidnapped them at gunpoint and ultimately murdered Mrs. Holm and seriously wounded her husband. At Stubbs' 1954 trial, defendant was represented by three appointed counsel. Alex Holm testified as did Stubbs himself and Stubbs was convicted of first degree murder, kidnapping and assault with intent to murder. Nine years later, Stubbs moved for a writ of habeas corpus in the District Court in Tennessee asking that his conviction be vacated on the grounds that his attorneys were appointed three days before trial. The District Court under a former Circuit Court rule, which required automatic reversal in cases of tardy appointment of counsel, vacated Stubbs' first trial and remanded him for possible retrial. At the second trial in 1964, the prosecutor sent a subpoena to Alex Holm's former address, a farm in in Texas, which was returned unsigned and he also contacted Holm's son, who advised the court that his father was now a permanent resident of Sweden. His son took the stand and so testified. The prior testimony of Holm was then read into the record over objections by counsel. Stubbs was among the witnesses who testified. He was convicted of first degree murder. The conviction was appealed to the Supreme Court of Tennessee and affirmed. After his release from the Tennessee prison, he went to Monroe County, New York, where he was arrested and convicted for first degree assault and possession of a firearm. Based upon the predicate of the Tennessee conviction, his sentence as second felony offender was 32-34 years.
Warren E. Burger: How long did he serve in -- on the first sentence?
Maria L. Marcus: Well, when he appealed his conviction to the Tennessee Supreme Court, they gave him credit for the 10-year period between trials and apparently he served only about two more years and it's not explained exactly why he was paroled at that point but that's apparently what happened. A petition for writ of habeas corpus challenging both convictions was filed in United States District Court for the western district of New York, which denied the petition. The Second Circuit, which had granted a certificate of probable cause solely on the grounds of the validity of the Tennessee conviction reverse the District Court. The Court below held that respondent had been deprived of his right of confrontation at the Tennessee retrial because due diligence had not been exercised to obtain the presence of the absent witness before the testimony of Alex Holm was read into the record and because counsel of the first trial had been tardily appointed and had not questioned Holm about whether after Stubbs had kidnapped the Holms at gunpoint, they had made him welcome as their Guest. This absence of questioning on the Guest theory; the majority held it could not be harmless error. The dissenting judge Leonard P. Moore called the majority decision an extraordinary example of justice dispensed by the federal courts. We urge reversal of the decision below on three grounds. First, that there was no lack of due diligence in obtaining presence of the witness. Second, that even assuming that due diligence was not exercised, the error in this case would have been harmless. And third, the tardy appointment of counsel at the first trial did not in fact, deprive respondent Stubbs of effective legal assistance. Barber versus Page was not violated by the use of testimony of the witness permanently domiciled in a foreign continent. This Court in Barber versus Page, ruled that a good faith effort must be made to have a witness present, prior to reading his testimony into the record at another trial.
William J. Brennan, Jr.: Does it appear Mrs. Marcus whether any offer was made to pay the expense?
Maria L. Marcus: Nothing in the record to indicate that. Of course, this was not only before this Court decided Barber, but even before this Court decided Pointer. However, it should be pointed out that it would have been greatly to the prosecutor's advantage to have this witness at the trial, simply because he was a victim to a very, very tragic circumstance; his wife had been murdered, he himself, was shot twice in the face, and of course the sympathetic effect of such testimony in the jury, would have been much greater than simply --
William J. Brennan, Jr.: What was the purpose of the Guest defense that it was not a felony murder?
Maria L. Marcus: Yes, I think that's why the Court below seized on that.
William J. Brennan, Jr.: Was he convicted of a felony murder or of a --?
Maria L. Marcus: He was convicted of first degree murder. The judge charged both felony murder and common law murder.
William J. Brennan, Jr.: So he may have been convicted under premeditated?
Maria L. Marcus: Yes.
William J. Brennan, Jr.: And what's the significant side of the Guest?
Maria L. Marcus: Apparently, the Court below felt that since Stubbs himself testified to the ownership of the gun and the fact that he kidnapped the Holms and compelled them to drive to the spot where the shooting occurred, but he said that --
William J. Brennan, Jr.: But would the evidence have supported that the Tennessee Supreme Court said, the evidence that it didn't support a first degree common law premeditative?
Maria L. Marcus: Oh, yes.
William J. Brennan, Jr.: It did!
Maria L. Marcus: Yes.
William J. Brennan, Jr.: Well, then this -- you are arguing harmless error -- Guest in an event?
Maria L. Marcus: Alright, we are arguing at any event that as far as harmless error is concerned that the Guest theory has no relation, because in fact for two reasons. First of all, in respect to the exercise of due diligence, 1964 counsel didn't indicate that if the witness had been there, they would have asked him any questions about the Guest theory at all. Second, the Guest theory was completely refuted by the record because --
William J. Brennan, Jr.: You said, he took the stand in the – in which the first or second trial?
Maria L. Marcus: He took the stand in the first trial.
William J. Brennan, Jr.: Did he -- does testimony indicate that he was a Guest?
Maria L. Marcus: -- quite the contrary. What Holm was asked on rebuttal by the prosecutor, did relations ever become friendly between you and your kidnapper and he replied, “No sir, there was no friendly relation” so that the Court erroneously assumed that there was --
William J. Brennan, Jr.: In the cross examination of Stubbs?
Maria L. Marcus: That no, this was -- and now I am speaking of Alex Holm, he made this reply. There was a --
William J. Brennan, Jr.: Well no, when Stubbs took the stand that he offered testimony, from which a Guest --
Maria L. Marcus: The testimony that he offered was that Mrs. Holm, when he was pointing the pistol in her face, asked him to put the pistol down, and that she would give him no trouble and I think there was an attempt by 1954 counsel to say that this was an expression of friendship.
Thurgood Marshall: Mrs. Marcus --
Warren E. Burger: The subject of possible friendship was at least hinted at in the first trial?
Maria L. Marcus: It was hinted at by virtue of his saying, they told me they would give me no trouble.
Thurgood Marshall: Mrs. Marcus let me back up a minute. The first conviction was offset because of ineffective counsel?
Maria L. Marcus: It was not any finding that on a record counsel was ineffective but because of a rule mandating automatic reversal in cases where counsel was tardily appointed. Now --
Thurgood Marshall: Don't you think that's different from the average case, because I would assume that if counsel had more time, he might have been able to ask more questions on cross-examination.
Maria L. Marcus: In this case, in the first place the record shows that the cross-examination was capably handled as was the direct examination. Also, as the Tennessee Supreme Court pointed out, it's very difficult to --
Thurgood Marshall: Did the Court of Appeals find that to be true?
Maria L. Marcus: The Court of Appeals, it made no reference whatsoever to lack of preparation time or the kind of questions that could have been asked except for the Guest theory. That was the only basis on which harmless error was rejected, but not only does the record show, that Stubbs was effectively represented by three counsel by the way, not only one.
Thurgood Marshall: But if I remember correctly in Scottsboro (ph) trial, they had 27 counsels, and this Court offset that, so the number doesn't help?
Maria L. Marcus: I think the record helps a great deal though because in reading it's clear that -- in fact, I think what makes it clear again --
Thurgood Marshall: You see I have great difficulty in looking at the record, and deciding as to what somebody would say on the second hearing? I assume that the second trial, the lawyer looks at the record of the first trial, and finds gee I should have asked that question and he then has the opportunity to ask him, but he didn't in this case?
Maria L. Marcus: We were given a little assistance as to what would have happened because 1964 counsel read into the record the questions that they would have asked. It's first notable that they made no mention of the Guest theory whatsoever, and second notable that there was a lot of time to research into Holms' past life, they didn't discover anything about his background, which could have formed the basis for cross examination.
Thurgood Marshall: Well how do you know what they might have wanted to ask him?
Maria L. Marcus: They said, they read into the record and it is --
Thurgood Marshall: They read into the record and they couldn't think of another question they would have wanted to ask, if he had been there?
Maria L. Marcus: No, but they listed the questions that they would have asked, and said and they further added there might have been other questions but these were the ones that on the basis --
William J. Brennan, Jr.: And those questions in this record Mrs. Marcus?
Maria L. Marcus: They are indeed, yes.
William J. Brennan, Jr.: Can you tell us what page?
Maria L. Marcus: It's on page 73.
William J. Brennan, Jr.: 73, thank you.
Byron R. White: So what difference would it have made if he was a Guest, how would that have helped the defendant?
Maria L. Marcus: Well, the Court below felt that it might have helped the defendant because if Stubbs' testimony, since he said on a stand that he kidnapped the Holms at gunpoint and compelled them to drive to the spot where the shooting occurred; this evidence was rather overwhelming, and the court below thought the Guest theory might show that if there was a felony which come to an end, that there might be more to say about the circumstances of a shooting, I think that's why they brought in the Guest theory.
Potter Stewart: Well, was it a felony murder conviction?
Maria L. Marcus: Well, it was a first degree murder conviction. The judge charged both felony murder and premeditated murder.
Potter Stewart: I see.
Byron R. White: But if he had been a guest then it could have been felony murder?
Potter Stewart: Right, right.
Maria L. Marcus: That was the idea I think that the Court below had.
Byron R. White: How would have that helped him?
Maria L. Marcus: Well, it would have helped him simply on a felony murder as had been on the first degree murder aspect.
Byron R. White: And they didn't think it was first degree murder?
Maria L. Marcus: It's apparently --
William H. Rehnquist: Well, I suppose as a matter of Tennessee's state law, if the judge charges the jury that they may find him guilty of first-degree murder on either theories.
Maria L. Marcus: On either grounds, it could have included either one.
William H. Rehnquist: And that it turns out that one of the theories might not have been supported evidentially, that would be reversible even though on the other theory were adequately supported?
Maria L. Marcus: In Barber, this Court discussed the reading of preliminary hearing testimony of a witness who was in a federal prison across the state border. The Court pointed out that increased cooperation between the states and the federal government meant that state process could cross a state border, and that states could issue writs of habeas corpus ad testificandum that federal courts have the power to issue such writs at the request of state prosecutorial authorities. This Court has in fact never ruled on the question of what good faith means in the context of witness who is not in the United States or in a territory of the United States, but is beyond the reach of compulsory process, by a state prosecutor. However, a number of state court and lower court decisions, federal decisions, indicate that proof that a witness is living on a foreign continent at the time of trial is sufficient to establish unavailability and cases in which it has been found that due diligence was not exercised, have been those in which the witness might had been in the jurisdiction. We ask this Court not to extend Barber versus Page to overseas witnesses beyond the stage reached by compulsory process, but instead to a adopt the rationale already set out by many courts that good faith in an oversees witness is shown by establishing that he is resident there. Now respondent attempts two countervailing arguments here. First, that the --
William J. Brennan, Jr.: -- you mean mean that's a rule that doesn't require in any instance then that the state offer to pay his expenses to come?
Maria L. Marcus: It wouldn't establish a constitutional duty to do so where the witness is beyond the reach of compulsory process.
William J. Brennan, Jr.: Well is the suggestion that the no inquiry made up at all if it's discover that he is permanently resident of overseas?
Maria L. Marcus: The suggestion is that it wouldn't be a part of the constitutional duty of the prosecutor to do so.
William J. Brennan, Jr.: Where does the duty end, what's to be done by the prosecutor?
Maria L. Marcus: Well, as far as -- well the prosecutor may in cases for example where the travel expenses are not too onerous, he may well feel that having the witness present would be to his advantage and he would pursue it regardless of what the --
William J. Brennan, Jr.: What -- I am Sorry Mrs. Marcus, I don't understand what you are suggesting should be the constitutional limit of the prosecution --
Maria L. Marcus: The establishment of his residence overseas as far as --
William J. Brennan, Jr.: And that once that's established, whether it's Mexico, Canada, no matter where it would be, that that's the end and then they use the prior testimony.
Maria L. Marcus: As far as this constitutional duty is concerned, yes.
Thurgood Marshall: It doesn't even require him to send a letter to say, if you don't mind, would you mind coming over to testify?
Maria L. Marcus: I think that where there is no compulsory process to back this up, we ask this Court to say that the limit of the duty would be the establishment that the witness is living overseas, and that is the rationale that these other courts have adopted.
Thurgood Marshall: That's even if the witness is willing to come over his own expense?
Maria L. Marcus: Well, if he is willing to come and the prosecutor is aware of that --
Thurgood Marshall: But it would know unless – I am just saying that he wouldn't embarrassed if the prosecutor write a letter over to him and say this case is coming up and if you could come over then we welcome?
Maria L. Marcus: Under the rule that these courts have established, that would be in the prosecutor's discretion rather than a constitutional duty.
Warren E. Burger: Did the defense ask for an allowance to bring Mr. Holm from Sweden?
Maria L. Marcus: No, they didn't. They objected to the witness out being there, but there was no reference to an allowance of any kind.
Harry A. Blackmun: Did either side request the deposition?
Maria L. Marcus: No, in other words the --
Harry A. Blackmun: You know whether under Tennessee practice the deposition may be employed in the current case?
Maria L. Marcus: Well, the prior hearing testimony was taken at a trial where the witness Holm was confronted, was cross-examined so that this testimony I think would have been the most valid that they possibly could read into the record. It was taken at the first trial, under the usual circumstances.
William H. Rehnquist: Ten years closer to the event I take it?
Maria L. Marcus: It was directly after the event, yes. Now --
Potter Stewart: And the facts were that the state in that second trial served process on Holms at his last known address, which was in Texas in the United States of America --
Maria L. Marcus: Yes.
Potter Stewart: -- and that was returned on moved --
Maria L. Marcus: Right.
Potter Stewart: -- and then was there any notification to him at all in Sweden?
Maria L. Marcus: They then have taken his son, who advised the Court as to his whereabouts and who testified on the stand as to his whereabouts.
Potter Stewart: That he had moved to Sweden?
Maria L. Marcus: Yes.
Potter Stewart: And was Holms himself ever notified?
Maria L. Marcus: There was a remark by 1964 defense counsel that the Court in referring to a newspaper interview where Holm's son was quoted to saying his father was not aware that the trial is taking place, but even if this process was excluded as hearsay by the judge, but it's interesting to note that 1964 defense counsel made no effort to cross-examine the son on a stand as to whether or not his father knew, so that there is nothing to record really, no proper evidence on that.
Potter Stewart: After the unsuccessful attempt to service in Texas, that was the end of it as far as the --
Maria L. Marcus: As far, except for the establishment of where he was.
Potter Stewart: Through the son?
Maria L. Marcus: Right. Now respondent argues here that the Walsh Act which is 28 U.S.C. 1783 could somehow have been employed to subpoena this witness. That statute only empowered a federal court to bring a witness before itself, where the United States Attorney General or someone acting under his direction so desired. It could not authorize a state prosecutor to bring a witness to a state trail. Indeed our research and a call to the office of the Untied States Attorney for the southern district has never revealed any case and which has been used by state prosecutor to secure witness in a state trial. Thus it would have been more than due diligence, it would have been a height of ingenuity for the prosecutor to have thought of that and it would have been unusable.
William H. Rehnquist: Mrs. Marcus I take it it's your position, the state of New York is not bound by Judge Miller's habeas corpus ruling?
Maria L. Marcus: Right, and this -- there was an attempt by respondent to argue that New York is in privity with Tennessee and therefore, this ruling would prevent us from looking at the record at all to determine whether counsel was effective or not. Now this privity theory might have some interest if we are relying on the 1954 conviction as a predicate. That was what was vacated, but in point of fact we're relying on a 1964 conviction, which was appeal to the Supreme Court of Tennessee, and which included a ruling that the cross-examination was effective. Moreover, the District Court never even considered whether counsel in fact conducted a proper cross-examination because it was a operating on a per se rule that made that kind of inquiry unnecessary. So they never dealt with the question at all of whether the 1954 counsel's cross-examination was effective or not. It did it merely on a per se rule, which this Court in Chambers versus Maroney has since rejected. This Court in Chambers held that the mere fact that the counsel is tardily appointed doesn't even call for a hearing necessarily much less automatic reversal. It calls for inquiry into the record to find out whether in fact there was effective representation. I would like to point out that even assuming that the state should have sent a request to the witness prior to reading his testimony in the record, there in this case would have been harmless because the outcome of the trial would have been the same, whether the state had communicated with Holm or not. If the letter had been sent to Holm and he had refused to come to Tennessee, his prior testimony would have been read into the record at the second trial.
Thurgood Marshall: Suppose he had agreed to come and pay his own expenses?
Maria L. Marcus: If he had agreed to come, I believe that it's beyond a reasonable doubt that he would have testified the same way for several reasons. First of all, the facts --
Thurgood Marshall: Well, may I assume that the lawyer would have additional questions?
Maria L. Marcus: Well, he -- as I said he did list what he would have had but I think there are other reasons to conclude that he would beyond a reasonable doubt have testified the same way. But first of all, the facts were --
Thurgood Marshall: My point is not on his testimony, my point is on cross-examination?
Maria L. Marcus: Yes, I think that he would.
Thurgood Marshall: And I don't think you can beyond a reasonable doubt, determine what a lawyer would say cross-examining the witness?
Maria L. Marcus: I think though that looking at this record and this witness, what we can say is that the witness would have withstood cross-examination.
Thurgood Marshall: Have you ever known every question you would ask on cross-examination before it started?
Maria L. Marcus: No, no your honor. But.
Thurgood Marshall: Thank you.
Maria L. Marcus: The question would be how would the witness have reacted to this cross-examination and the testimony was uncomplicated. Stubbs was a strong witness to a tragic situation with no motive to lie. Stubbs --
Potter Stewart: You mean Holm?
Maria L. Marcus: Holm, yes. Stubbs' identity, the ownership of the gun and the fact of the kidnapping were corroborated by Stubbs himself and moreover Holm could have refreshed his recollection by reading his prior testimony from the earlier trial. And 1964 counsel with plenty of time to research into Holm's background did not find anything upon which to base new questions.
Potter Stewart: At the trial did Stubbs deny firing any shot?
Maria L. Marcus: He testified at both trials and he reiterated that when he was released from the Texas prison, he tried for several days going toward Bristol, Tennessee, where he hoped to meet a truck route going to New York. He encountered Mr. and Mrs. Alex Holm, he had a gun, which he had been given by a friend, he had no money, no job prospects. He said that he kidnapped the Holms' at gunpoint.
Potter Stewart: This is all his testimony -- ?
Maria L. Marcus: This is his testimony at both trials.
Potter Stewart: Right.
Maria L. Marcus: Kidnapped the Holms' at gunpoint and with his left-hand holding the gun at intervals pointing into Mrs. Holm's face. They drove on until near Bristol, Tennessee, he testified that he saw a tree in a reddish haze. He heard a loud bang, he felt a pain, he thought that Holm must have gotten the gun away from him and then Stubbs fled from the car. Now Stubbs testimony about his subsequent flight, the blood on his clothes, the roadblock at which he was arrested and a hospital room identification in which Holm pointed to him in the presence of a number of police officers and said this is the man that killed my wife and shot me. That's subsequent --
Potter Stewart: Was Stubbs wounded when he was apprehended?
Maria L. Marcus: Yes, he had head wounds because Holm had hit him several times with the gun on the head, once having seized it.
Potter Stewart: No gunshot wounds ?
Maria L. Marcus: There was some testimony that a bullet might have graced him, yes.
William H. Rehnquist: Didn't Stubbs also offer the explanation when he is first apprehended that he had fallen off a cliff while he was fishing and that was how that happened?
Maria L. Marcus: Yes, he told that -- it was the first story that he told the police officers that the blood was there only because he had an accident while fishing and he had slipped on a cliff. The disputed testimony of Alex Holm of course parallel that of Stubbs himself as to the fact that Stubbs had kidnapped them and compelled them to drive to the spot where the shooting occurred. Now the hospital room identification was not objected to and the police officers testified in court at both trials as to that identification. I have pointed --
William J. Brennan, Jr.: Mrs. Marcus, I gather -- in this instance, the only issue before us is whether the state did what it should have done to bring Mr. Holm back for the second trial?
Maria L. Marcus: Well, even if not, it would have been harmless error in the context of the overwhelming evidence in this case.
William J. Brennan, Jr.: But apart from that, on the basic issue, I just want to be clear. Your position is that as far as a state need go is, that is, satisfy itself that the witness permanently resides overseas and that satisfies any constitutional obligation it has?
Maria L. Marcus: Insofar as a witness is resident beyond the reach of compulsory process.
William J. Brennan, Jr.: Yes because he was living in some foreign country. Now we don't agree with you, I gather from Judge Friendly's opinion, he thought that it was not the proper test. He thought that the --
Maria L. Marcus: Judge Adams' opinion, Your Honor?
William J. Brennan, Jr.: Adams, I am sorry, yes. The majority opinion. It's page 27, is where there is no showing that the witness beyond the effect of reach of court's subpoena will refuse to return voluntarily to testify if requested. So under that test there would have to be an inquiry made if the witness resident abroad -- and get from him a refusal to appear. Now there is nothing in that test I gather which suggests that there should also be an offer by the state to pay the expenses of the witness if you will.
Maria L. Marcus: No, he made no mention of that and then he ultimately on our second point, which was that the evidence here is so overwhelming with the hospital identification.
William J. Brennan, Jr.: Yes, but if I may, I would like to conclude.
Maria L. Marcus: Sure.
William J. Brennan, Jr.: Now if we don't agree with your test, but think that the test suggested by Judge Adams is the more appropriate one and then I gather there can be a reversal only if we agree with your second point namely on harmless error?
Maria L. Marcus: Yes, that's right. I would like to reserve time for rebuttal.
Warren E. Burger: Very well Mrs. Marcus. Mr. Carpenter.
Bruce K. Carpenter: Mr. Chief Justice, may it please the Court. Perhaps in order to clarify the questions that are raised, I should address myself first to what happened, the facts of the case at the Tennessee trial a little bit. The un-controverted testimony was that some 55 miles away from the homicide, the place where the homicide took place, in another part of Tennessee, Stubbs approached Mr. and Mrs. Holm. Now Stubbs was hungry, he had been without food. His, this is Stubbs' testimony, for some time he was desperate. He wanted a ride to get up to New York where he had relations. As he approached the Holms, asked them for a ride, was refused, went away and then he said, he remembered he had the gun, he came back, forced his way in their car. He drove, they were in the back seat and away they went. Now, at this point, of course, we have a serious misconduct. Now the testimony of Stubbs was that very shortly, after this trip began friendly relations began to exist between him and the Holms. They began to express sympathy for his condition and said, if you had only asked us properly for a ride, we would have given you one, or food. So that this is Stubbs said happened about four miles after the trip began.
Potter Stewart: You say Stubbs said as that he -- so testified at both trials?
Bruce K. Carpenter: Yes, he did.
Potter Stewart: He did.
Bruce K. Carpenter: Yes. Now, the trip continues. They pass through towns. Stubbs says that pass a police officer. They continue on their way and all of a sudden --
Warren E. Burger: Didn't he also say right at that point that he put the gun down on the seat of the car?
Bruce K. Carpenter: Yes.
Warren E. Burger: And that was -- so that the police officers and others wouldn't see the gun?
Bruce K. Carpenter: Yes. At the request of Mrs. Holm, put the gun down, he had had it, he said in his lap; then the testimony was he put it on the seat beside him.
Warren E. Burger: He didn't throw the gun away though anytime or offered to give it to the Holms?
Bruce K. Carpenter: No. No, he did not. But at any rate, according to the defense point of view, the gun was on the side of his seat, beside Mr. Stubbs. He feels that friendly relations have been developed. He feels at ease and then when they come across a place where there are some people nearby. According to Holm, Stubbs took the gun and turned around and started shooting while the car was still moving, and he shot the wife and shot Mr. Holm twice.
William J. Brennan, Jr.: They were both in the back seat?
Bruce K. Carpenter: They were both in the back seat.
William J. Brennan, Jr.: Did they both agree on that; Stubbs and Holm agreed that the two were in the back seat?
Bruce K. Carpenter: Oh yes! Yes, there is no question. Mrs. Holm was sitting whereas in the middle there was some luggage off to the left and Mr. Holm was on the far right. Now Stubbs testified that he did not shoot anyone. That as he was driving he was suddenly hit on the head presumably by the gun and the car crashed and he struggled out and got away and escaped. Now the trial judge in Tennessee --
William J. Brennan, Jr.: What about this? He says that he doesn’t know how they were shot?
Bruce K. Carpenter: He doesn't know how they were shot. He presumes that -- he says Mr. Holm has the gun and he had to struggle to get it away and then --
William J. Brennan, Jr.: And who had to struggle to get it away?
Bruce K. Carpenter: Stubbs had to struggle.
William J. Brennan, Jr.: And did he get it away from Mr. Holm?
Bruce K. Carpenter: No, because the gun was found in the car, the backseat of the car, backseat when the police officer (Inaudible) -- Now the trial judge--
William J. Brennan, Jr.: And did the car crash in fact?
Bruce K. Carpenter: The car didn't crash. It went off the road and wound up in a ditch, pointing in the same direction that it had traveled. The trial judge charged and I quoted this portion in the Appendix to the brief, it’s not finally printed in the record, that if this theory were accepted by the jury, they should acquit. I think then that as to the question of whether or not, Mr. Holm’s testimony was crucial or devastating, there should be no questions in the case as to that. Certainly, there was no other witness.
Potter Stewart: He was the only eye witness?
Bruce K. Carpenter: He was the only eye witness – yes, Your Honor and he was the only witness if you include Stubbs’ testimony and Stubbs being present in the car, who was -- and he said that Stubbs had done the shooting. Well, certainly this is different from those cases where confrontation is considered in the context of a peripheral statement that may or may not have affected the outcome.
Warren E. Burger: But this subject of the alleged friendly relation, a happy relationship that developed was explored at the first trial, was it not?
Bruce K. Carpenter: It was not adequately explored at the first trial.
Warren E. Burger: Yeah, but it was explored though?
Bruce K. Carpenter: It was explored by reason of Mr. Stubbs’ testimony. Now I gather --
Warren E. Burger: And then they cross -- Mr. Holm was examined on the same subject and he said there were no friendly relations at all.
Bruce K. Carpenter: Yes. The transcript of the first trial, I just had occasion to read it last week. It is not part of the record to this Court, I will leave the copy, the certified copy that I obtained from Tennessee, with the clerk, but Holm testified first, at the first Tennessee trial. He was the first witness, and my impression in reading that transcript is that the counsel, who cross-examined him om this part as we produced in the Appendix, were not aware of the defense that was to be offered. I mean, My feeling is that they didn't learn of this until Stubbs testified and told his story. I think there is clear indication, but of the fact that counsel were unprepared at this first trial.
Warren E. Burger: In three days, couldn't three lawyers have found that out, if that were invalid notion?
Bruce K. Carpenter: Well they might have, but this case involved the people who were from out of state, people that were not local people, both the Holms and Stubbs. The counsel perhaps might have learned, but they didn't. At any rate --
Warren E. Burger: May be it didn't occur to the defendant until he got on the stand?
Bruce K. Carpenter: Well it’s possible, but his testimony was straightforward at both trials. To this there was no conflict over the years.
William H. Rehnquist: I take it all they would have had to do to learn of the defense was to interview their own client.
Bruce K. Carpenter: Yeah, I should think here they might have done so. I don't know the problems of a lawyer who is preparing a defense, that’s difficult. You really need to have time to mull over things. What’s apparent here, at the site when we had plenty of chance to consider the record and explore them often, these matters which seem so clear now, are not so clear when you first get a case.
Byron R. White: When Holm came back on the stand on rebuttal (Inaudible) after the defendant’s testimony, that he was available then for cross examination?
Bruce K. Carpenter: Yes, but no questions were asked. Well there -- three questions were asked as to story that an attempt was made to impeach Mr. Holm at this point, an abortive attempt, three questions were asked as to what whether he had told a conflicting story to an undertaker and it never really reached the point of impeaching.
William J. Brennan, Jr.: It may not, but certainly confrontation of Holm was had when he took the stand on rebuttal, wasn't he?
Bruce K. Carpenter: Yes.
William J. Brennan, Jr.: So constitutionally, Stubbs can’t complain that he didn't have an opportunity for confrontation, but what you are suggesting is that it’s ineffective assistance of counsel, aren’t you?
Bruce K. Carpenter: Yes, well of course it is.
William J. Brennan, Jr.: What the Judge Miller lead into?
Bruce K. Carpenter: What the Judge Miller say, Your Honor?
William J. Brennan, Jr.: Yes. Well, he had gather --
Bruce K. Carpenter: Yes, Judge Miller said and his decision is appended as an Appendix to our brief. The Court is of the opinion that the evidence in the record show that the constitutional rights of petitioner Stubbs were violated at the time of his trial in the criminal court of Sullivan County, that’s the 1954 trial, in that his Court appointed counsel did not have adequate and sufficient time within which to prepare the necessary defense prior to going to the trial and as a result the petitioner was denied the effective representation by counsel. Now early on in his decision, he recites that he considered the testimony of Stubbs and the entire record, and to reach this determination. This determination was not apparently questioned by the Tennessee authorities. They acquiesced in this decision in promptly awarding a retrial in 1964.
Byron R. White: Is it critical to your case whether or not representation was effective or ineffective?
Bruce K. Carpenter: Well I --
Byron R. White: Let's assume for the moment that there was no question whatsoever as to the effectiveness of counsel at the first trial?
Bruce K. Carpenter: Then as in Barber against Page, assume that there was effective cross-examination, there still was a denial of confrontation. There was a denial of confrontation because the prosecution needed to make a good faith effort to obtain the presence of this witness Holm at the second trial.
Byron R. White: You are saying that just as though Holm was living ten miles away and they thought it would be more convenient to use his prior testimony than call him?
Bruce K. Carpenter: Yes. In fact, there is an indication in the record as my sister pointed out, that Mr. Holm was not even apprised of the fact that there was a trial pending. He didn't even know about it, let alone be asked whether he wanted to come to the trial, let alone be asked whether he would be willing to come --
William J. Brennan, Jr.: Well, I gather New York doesn't deny this? There was no communication directly with him at all, at least on the part of any Tennessee official?
Bruce K. Carpenter: Yes.
William J. Brennan, Jr.: I take it New York does not deny -- I thought Mrs. Marcus didn't answer to some questions I asked and conceded as much?
Bruce K. Carpenter: There is a further indication in the Tennessee record that counsel had been informed by the Tennessee prosecutor, that Mr. Holm would be produced. At least they -- one lawyer made a remark and it's cited in the page reference, it's cited in the brief that --
William J. Brennan, Jr.: With different lawyers at the second trial?
Bruce K. Carpenter: Yes, different lawyers and different set.
William H. Rehnquist: That wasn’t really admissible evidence though, was it, wasn't that a statement of counsel that trial judge refused to consider?
Bruce K. Carpenter: Yes, It was a remark of counsel addressed I believe when the jury was not present. So that it isn’t in the evidence. In any event, it is not just --
Thurgood Marshall: But sometimes the petitioner asked the Court -- asked the prosecutor to produce the witness?
Bruce K. Carpenter: No, but I think that they indicated most strenuously their desire to have the witness present in order to be questioned.
Thurgood Marshall: No, I don't -- may be I misunderstood, but I understood your record you showed, that they didn't want the trial to go on without the witness, but they -- whether a particular the witness came or not?
Bruce K. Carpenter: I don't recall the exact wording that counsel used. I got the impression from the statements of counsel that they wanted the witness there.
Thurgood Marshall: Yeah, well couldn’t it be that what they wanted was the trial not to go on without the witness?
Bruce K. Carpenter: I think so.
Thurgood Marshall: It means no trial?
Bruce K. Carpenter: Yes.
Thurgood Marshall: Well, don't you think they should have asked what was going to be done about it?
Bruce K. Carpenter: I think, they might have asked, but this remark that I have mentioned, which is an evidence may have been an explanation as to why they didn't. They expected Holm to be there. When in the middle of the trial --
Thurgood Marshall: But don't you think that they could have raised that point and told the Court that?
Bruce K. Carpenter: Yes, the could have.
Warren E. Burger: And don't you think they perhaps had an obligation to do that before trial so as not to have the second trial aborted by a mistrial?
Bruce K. Carpenter: Yes, if they had known that the witness Holm was not going to be present.
Warren E. Burger: You are assuming something on which there is nothing in the record on one way or the other?
Bruce K. Carpenter: Well --
Warren E. Burger: You said if they had known. We don't know from this record whether they did or did not know. For all we know, they may have been very carefully making it a point not to make a demand. It's just as good speculation as yours that they avoided making a demand because they never wanted to see Mr. Holm in the courtroom?
Bruce K. Carpenter: Well that, this of course would be the devious tactics by some counsel. Perhaps it might be suggested --
Warren E. Burger: You wouldn't.
Bruce K. Carpenter: I never quoted the entire passage in the record, which is not printed in the appendix, where counsel before the testimony was offered, made their objections.
Warren E. Burger: This is after the trial was once underway --
Bruce K. Carpenter: This is after the trial was once underway.
Warren E. Burger: The only solution would have been a mistrial, if they were going to -- probably a mistrial, if they were going to wait for this man to be subpoenaed, and determine whether he would honor extraterritorial subpoena all the way to Sweden. And then, if a mistrial occurred, I suppose it would be open to the defense to claim that the mistrial was the fault of the prosecution and that he could therefore raise the double jeopardy defense.
Bruce K. Carpenter: Yes, but I would say then, the passage -- the only passage that addresses in the record, that addresses itself to this point, is a statement by Mr. Mitchell, one of Stubbs' counsel at the second trial. And he says --
William J. Brennan, Jr.: At what page is that?
Bruce K. Carpenter: Page 16a of the respondent's brief at the bottom. It's at page 162 of the transcript of the 1964 trial. Your Honor, please I think it is the law and it is the law until the Court speaks otherwise. Now as Your Honor recalls Mr. Wilton (ph) who was the prosecuting attorney, stated that he would have Mr. Holms, and a Holm and Holms are interchangeable spellings of the same were present and then there is a three dots to show a suspension, that's the only passage in the record that speaks of it. I think it explains, perhaps why counsel did not move for an adjournment or move or apply to have the witness brought over at the counsel's expense or since Stubbs was indigent at Court expense. They were, I think, if there is any question, the only indication in the record is that the counsel were surprised.
Byron R. White: Was there another conviction besides the Tennessee conviction?
Bruce K. Carpenter: I believe there was, yes.
Byron R. White: The – in Texas (Inaudible) and New York specifically relied on the Tennessee?
Bruce K. Carpenter: Yes, they relied on it so far as this case is concerned.
Byron R. White: Yes.
Bruce K. Carpenter: And on our, when opposing our certiorari --
Byron R. White: But they have gone through the same mileage out of the defense's (Inaudible)
Bruce K. Carpenter: Yes, I thought that the case might be moot because of that and that the Court might not want to consider the case, but at any rate New York --
Byron R. White: Was that offered -- was the Texas conviction offered, how did they prove a prior conviction in New York?
Bruce K. Carpenter: Well they would have, following a conviction by the fact finding. The prosecutor lays an information, and it is possible to have a jury trial on the question whether the defendant is the same person that was convicted and it's also permissible under the effective New York statute to raise the question as to whether the previous conviction was constitutionally obtained.
Byron R. White: No, that went forward here?
Bruce K. Carpenter: This went forward here, following his conviction in Monroe County and the only conviction that was used was the Tennessee murder conviction.
Byron R. White: But how does anybody -- how did anybody know that was in Texas?
Bruce K. Carpenter: Well, following the mandate of the of the Court below.
Thurgood Marshall: What about his testimony, that he was on his way from the Texas penitentiary? If he was on his way from the Texas penitentiary, he was either God or a prisoner, didn't he testify that?
Bruce K. Carpenter: Yes, I don't know whether that this would necessarily make him a felon, but my information is that he was in fact convicted of a felony in Texas for burglary. Whether or not it was a valid conviction, is still being litigated in the New York courts.
William H. Rehnquist: His counsel is claiming, I suppose of that, that kind of conviction too was unconstitutional?
Bruce K. Carpenter: Yes.
William J. Brennan, Jr.: In what proceeding is the Texas conviction being litigated?
Bruce K. Carpenter: Well, there was no stay of proceedings following the decision below.
William J. Brennan, Jr.: In this case?
Bruce K. Carpenter: Yes, in this case.
William J. Brennan, Jr.: And this case was resulted in what, setting aside his sentence?
Bruce K. Carpenter: Yes, that he was ordered released; if the New York courts did not resentence him, giving no effect --
Byron R. White: Now they are not going through the same proceeding based on the Texas?
Bruce K. Carpenter: Yes, Your Honor.
Byron R. White: So it could be that --
William J. Brennan, Jr.: This whole thing could washed out?
Byron R. White: -- this whole thing, as you say may will be moot?
Bruce K. Carpenter: Yeah, this is what I thought. It may not be moot because if Stubbs is correct in his contention that --
Byron R. White: Yes.
William J. Brennan, Jr.: No, but if it's found against him, on the Texas, then all you will have is another appeal I take it?
Byron R. White: Yes, so there is currently another proceeding in the New York courts based on the Texas conviction?
Bruce K. Carpenter: Yes. I tried to ascertain exactly what had happened and may be my researches are not accurate.
William J. Brennan, Jr.: You are not representing him in --
Bruce K. Carpenter: No, the Monroe County's public defender has been in communication with them.
William J. Brennan, Jr.: I see.
Bruce K. Carpenter: I checked --
William J. Brennan, Jr.: You were assigned in throughout this --
Bruce K. Carpenter: I've been assigned in the Court below and I realizing I had spent 1000 bucks, excuse me Your Honor, dollars, I asked the clerk to assign me here this morning, to proceed. I think to return to the analysis of the case, it's a complicated case and we have to go from here to here to discuss the parts of it, and not that the effect of one part on the other part. I think that you don't, this Court does not need to enter into the question, as to whether or not there was effective cross-examination or whether there was harmless error in the representation by the counsel at the Tennessee trials. If the Court determines that the prosecution in Tennessee had to make an effort, some kind of an effort to obtain the presence of the witness Holm.
Harry A. Blackmun: Mr. Carpenter, at point enlighten me, what kind of an effort in your estimation would be sufficient?
Bruce K. Carpenter: I think the only effort that is sufficient when you have an indigent defendant is an offer to pay the expenses aback and an application. I would suggest --
Harry A. Blackmun: Why not deposition, why not schedule deposition in Sweden?
Bruce K. Carpenter: Well, this is possible. I suppose it would be -- if the witness refused to come but would attend a deposition, this might be an effective substitute.
William J. Brennan, Jr.: Without the privilege --
Bruce K. Carpenter: In this you have to transport more people over to Sweden and you wouldn't --
Harry A. Blackmun: Isn't Justice Brennan's comment appropriate, wouldn't the defense then be complaining of expense either in going over to attend the deposition or hiring local counsel? Wouldn't we have another case here?
Bruce K. Carpenter: Well, I don't know. I think if you are representing an indigent, counsel probably would be more prudent than I was and would go ahead and make the application before going over there and would apply for reimbursement. But may be all that's necessary is, as was suggested from the bench, just ask the witness if he is willing to come back at his own expense.
Harry A. Blackmun: Well suppose the witness, instead of being in Sweden were in the front lines in Vietnam, would it make any difference?
Bruce K. Carpenter: Question is -- I'm thinking of what is the -- a case arose in California, where exactly the same situation occurred. The application was made to the Marine Court and the legal officer told the investigator -- the police officer investigating that he was unavailable and it was determined that this was a satisfactory determination that the witness was unavailable. I think one of the California cases is cited in the brief.
Byron R. White: California --
William J. Brennan, Jr.: California brief, isn't it?
Bruce K. Carpenter: No, it wasn't --
Harry A. Blackmun: But at least you don't disagree with that determination?
Bruce K. Carpenter: Well, I think there was an effort made to get the witness. An answer came back that the witness was unavailable. This is far cry from what was not done in this case.
Warren E. Burger: And yet, the military authority could have ordered that man back into the United States, couldn't they?
Bruce K. Carpenter: Yes, the case that I was mentioning or which is in the fact is the -- I think People against Benjamin, which is cited sited in 83 California Reporter 764, an intermediate Appellant Court decision.
William H. Rehnquist: Mr. Carpenter, I take it you are relying on Barber against Page for your main proposition and there is at least a factual distinction between this case and Barber, isn't there, in that in Barber nobody cross-examined on behalf of the particular defendant who later raised the objection?
Bruce K. Carpenter: Yes.
William H. Rehnquist: Whereas here there was cross-examination on behalf of your client in the 1954 trial?
Bruce K. Carpenter: Yes, there was cross-examination. Of course, the decision in Barber expressly made the effectiveness of the cross-examination not a factor in it, but so that the precise holding in Barber as I read the case is that assuming you have effective cross-examination or assuming cross-examination is not at issue, that is, whether or not the transcript that you are going to use of the absent witness' testimony is a good enough transcript to use.
William H. Rehnquist: Well, isn't the holding though kind of limited to the fact; when you are speaking about holding, you are talking about the facts of the particular case?
Bruce K. Carpenter: Yes, and another fact that distinguishes is Barber and Page distance was only 225 miles and it was just one straight line, but these facts, because I don't think that distance here, it's 4500 miles or so to Sweden make -- is a determining factor.
William J. Brennan, Jr.: Well, Mr. Carpenter there had been the most vigorous cross-examination to Mr. Holm when he took the stand in rebuttal as to Stubbs had told this good relation story and that had been the most vigorous cross-examination of Mr. Holm, you say that here there was not. Had there been, would you be here?
Bruce K. Carpenter: Yes, I would think that Barber against --
William J. Brennan, Jr.: You still think that an effort should have been made to have Mr. Holms appear at the second trial?
Bruce K. Carpenter: Yes Your Honor, because the right of confrontation involves not merely cross-examination, but also the right of a defendant to have his fact-finder, deal with the witness, face to face, consider that the demeanor of the witness as he is giving his testimony and determine, you might have waive it or give it up, because of the necessities of some case, but it's something that you shouldn't give up easily --
Warren E. Burger: Suppose it appeared hypothetically now, that's not this case, but suppose hypothetically it appeared that a defense counsel in that posture consulted with his client and said you will be much better off to have this testimony read from the transcript than to have this man sitting in the courtroom, flesh and blood on the stand with the scars of the bullet wounds on his face and suppose he made that decision, would you think anyone could reasonably say that was ineffective, that tactic was ineffective assistance of the counsel or was it a permissible choice?
Bruce K. Carpenter: I think it's perhaps possible for counsel to make that decision. I don't think it would be dishonest for counsel to advice a client to better let the testimony be read. In this case, there was no hope.
Warren E. Burger: Well, I didn't suggest he was dishonest. I am simply suggesting that it might have been sounder defense tactics not to have Mr. Holm there?
Bruce K. Carpenter: The only defense tactics that would have worked in this case in my opinion is to show Mr. Holm to have been a liar; that's the only way and counsel failed to do anything effective in the 1954 trial, they had no chance to do it in the 1964 trial. Thank you very much.
Warren E. Burger: Thank you. You have few minutes left --
William J. Brennan, Jr.: Mrs. Marcus what's your status of this hearing on the Texas conviction?
Maria L. Marcus: He has been resentenced as a second felony offender under the Texas predicate and he is appealing that Texas predicate. However, regardless of the outcome --
William J. Brennan, Jr.: An appeal where, in the state of New Jersey -- in New York State Courts?
Maria L. Marcus: In New York State Courts, yes, first. Regardless of the outcome of that appeal, there still would be no mootness in this case because this Court held in Sibron --
William J. Brennan, Jr.: No but isn't the condition satisfied here? The condition was that he'd be resentenced?
Maria L. Marcus: Yes, but --
William J. Brennan, Jr.: Well that satisfy the condition of this judgment?
Maria L. Marcus: It does not for the considerations that this Court discussed in Sibron v. New York and the Morgan case. The fact of collateral disabilities and more important under New York law, upon a subsequent conviction, the Judge has a right to consider the whole history of this defendant and the kind of crimes which he has committed before and has a discretion to resentence him to a life-sentence and of course, any --
William J. Brennan, Jr.: Well, what could he sentence him to here? Is there any different sentence that he got?
Maria L. Marcus: The sentence here is not different, but as this Court pointed out in both Sibron and Morgan, it must be considered what would happen on a subsequent conviction and what would happen is that the sentencing Court would undoubtedly regard as crucial in determining what kind of person this is, what sort of chances for rehabilitation and what sort of danger he poses to the public in being released. A brutal murder of this kind committed seven days after release from the Texas penitentiary, he would undoubtedly be central to the sentencing Court and so under the considerations of this Court set out in Sibron and Morgan, the case cannot be moot.
Warren E. Burger: Thank you Mrs. Marcus, thank you Mr. Carpenter. The case is submitted.