Warren E. Burger: Gutknecht against the United States. You may proceed whenever you're ready Mr. Tigar.
Michael E. Tigar: Thank you. Mr. Chief Justice and may it please the Court. This case presents a serious question, here in Oestereich against the Selective Service Board, but not decided in that case. Of whether the selective service system is being used to punish or sanction this ancient behavior without due process, without congressional authorization and on the standards so vague and broad as to offend the First Amendment. There is in addition here, two serious questions, there are here two serious questions, concerning criminal procedure in the 9.7% of all federal criminal prosecutions, which are represented by selective service prosecutions today.
Potter Stewart: There almost 10% of all federal prosecutions?
Michael E. Tigar: Yes, Mr. Justice Stewart, 9.7% I believe in the last report. The petitioner, David Gutknecht anticipated in an antiwar, anti-draft demonstration on the 16th of October, 1967, in the course of which he dropped his registration certificate and notice of classification, along with the mimeograph statement of position on the Vietnam war and conscription, at the feet of the United States Martial, in front of the Federal building in Minneapolis. Eight days later, on the 24th of October, 1967, General Hershey, the Director of the Selective Service System, issued the letter to all local boards and local board memorandum number 85, which are reprinted in Appendix B to the petitioner's brief which was an issue in Oestereich.
Warren E. Burger: What was the petitioner's classification at that time?
Michael E. Tigar: At that time Mr. Chief Justice he was classified 1-A, although he had an appeal pending, which meant that he could not be inducted.
Warren E. Burger: Does the record show anything about how long the time is involved in processing appeals in that particular board?
Michael E. Tigar: No, Mr. Chief Justice it does not. The average time is a meaningless figure. It varies greatly depending on the workload. Those figures are collected most recently in the Marshall Commission report in pursuit of equity. The local board memorandum and letter, urged local boards to use the delinquency power to reclassify and order for priority induction, registrants who engaged in illegal demonstrations. As soon as it could under the regulations, the petitioner's board on December 21, 1967, sent him a delinquency notice, reprinted at page 44 of the appendix. And a weekend, a day and Christmas day after that, sent him an order to report for priority induction. Taking him out of his statutorily and regulatory mandated position in the order of call and ordering him for military service, ahead of the time, when he would otherwise have to report.
Potter Stewart: Now, was his appeal still pending from his 1-A classification?
Michael E. Tigar: No, if it had been pending Mr. Justice Stewart, it would have been illegal.
Potter Stewart: Right.
Michael E. Tigar: Under the regulations.
Potter Stewart: But it was not?
Michael E. Tigar: It was not pending. The petitioner concededly reported for induction, but did not obey the orders of the induction center officials relating to his processing. A prosecution for refusal to report for and submit to induction followed then, he is currently under sentence of four years imprisonment. The delinquency regulations, if the Court please, provide that when a registrant fails to perform any duty, a term given no further definition, under the act or regulations, he may in the unfettered discretion of the board be declared delinquent. If he is to further exempt, he may again in the unfettered discretion of the board be classified in the class available for service. If he's already 1-A, he is sent to the head of the list for induction. Now, if he is reclassified out of the deferred or exempt status, he has a personal appearance before the board and an appeal. If like the petitioner, he is already 1-A, he is entitled to no hearing whatever before the local board under the regulations. Say that hearing which the board in its absolute discretion may choose to give him. The decision to declare, retain, or remit delinquency status, resides under the regulations in the discretion of the board. It's our contention, set forth in our brief, that this kind of administrative sanctioning procedure, involving the summary deprival of a benefit or privilege, under a regulatory system, knows no parallel in federal administrative law today. And when coupled with administration under the broad ranging directive of the director of Selective Service to have local boards reach out to get at the sanctioned behavior, the regulations have a fearsome deterrent effect upon the exercise of protected freedoms.
Warren E. Burger: How much of your case depends upon whether he did or did not have a right to a hearing at that time?
Michael E. Tigar: Mr. Chief Justice, I would say our case depends not at all upon that point. We do of course contend that the regulations impose punishment and therefore, he was entitled to a judicial trial. Second, that they impose a sanction at least and he is entitled to due process and adversary hearing. But, even if the Court should decide those questions against us, we believe that Green and McElroy compels reversal here. Green and McElroy will be recalled, did not require the Court to reach the constitutional issue. All the Court held was that given our presumption in favor of fairness, we would not presume that the Congress authorized an administrative agency to dispense with these fundamental procedural decencies, without an expressed statement by the Congress and an expressed statement by the president of an intention to do so. And if the Court were to adapt that position, which seems to me sensible and supported by the former decisions of the Court, the constitutional issue need not be reached. However, we do believe that if the constitutional issue must be reached, should be decided in our favor. These regulations in their purpose, their language, their administration, and their effect are punitive. Even the Government cannot evade this issue and it's brief that a search on the one hand that they are not punitive and in the appendix to its brief reprints a letter from General Hershey to Mendel Rivers, which makes their punitive intent abundantly clear. On page 81, General Hershey says that Selective Service should not be used for punitive purposes, if by that it's meant that one should be inducted to the Armed Forces as punishment for an offense, which is not related to Selective Service, leaving the regulations to be applied in that vast number of federal offenses which maybe found in trusteeses of the Selective Service Act and Regulations. Indeed, the delinquency regulations are far broader than is necessary to achieve the limited, non punitive purpose which the Government would describe to them. Under the regulations, a registrant is presumed to be 1-A, unless he supplies the board with information about his status. And perhaps, properly so that compels him to go in there, and tell the local board what he's been doing and whether he's entitled to a deferment or exemption. A delinquency system, which limits the local board discretion, and which provided that a registrant's classification was to be frozen, it was to be frozen in 1-A for example, and that no requests for deferment would be considered, until he started cooperating with the local board in supplying information. If again, placed under a limited, non discretionary, regulatory scheme, might be non-punitive, but taking the further step of prior to induction illustrates I think the punitive purpose, which lies at the base of these regulations.
Speaker: Within that hypothetical, just get into that limitation, let's say that the regulation is so construed, he's authorized by the statute.
Michael E. Tigar: No, Mr. Justice Harlan, we would not. I think that this regulatory scheme finds no authorization, whatever in the Selective Service Center. And that it ought to be held unauthorized and the president left, if he wishes to, to -- excuse me, I misunderstood your question. If the regulations were redrafted with the limitation I've just suggested, perhaps this Court could find them approved under the statute or authorized under the president's general rule making power.
Speaker: That was my question.
Michael E. Tigar: That would be a different case, yes Mr. Justice Harlan. The presence scheme reposing in local boards, there's absolute discretion, finds no authorization in the statute. And, there is no indication that the Congress has ever explicitly and carefully considered it, as it has explicitly and carefully considered every other federal regulatory scheme that I know of, which involves the imposition of the sanction of this character. We turn therefore, to the inhibitory effect of the Hershey directive, upon the exercise of protective freedoms.
Hugo L. Black: Where did you say that letter was?
Michael E. Tigar: The letter Mr. Justice Black, it appears at page 81 of the Government's brief, it is a response to a letter from -- or to a request from Mendel Rivers for information. The Government has attempted to evade the free speech issue in this case. In its brief and in oral argument yesterday, by denying that it exists. It underscores this by saying that the petitioner's turning in of his card is not protected conduct. We argue in our brief that it is, but the Court needn't reach that issue, in order to find the First Amendment fault in the Hershey directive. The record in this case indicates that the board had before it, the following information. First, a letter from the United States Attorney, reprinted at page 42 and 43 of the appendix, stating that the petitioner had participated in an antiwar, anti-draft demonstration and turn in this Court. Second, the board had before it the indubitably persuasive words of General Hershey counseling it to use its broad-ranging discretionary powers to punish behavior which the five lay members of the board conceived to be illegal. And finally, there is the delinquency notice. We have here a case therefore, in which the directive, the regulatory scheme, the Hershey directive, the local board memorandum supplemented by this very vague system of procedural provisions in the delinquency regulations is unconstitutional on it's face. And here, as in NAACP and Button, as in Freidman and Maryland, as in Aptheker against the Secretary of State, it doesn't matter whether the petitioner's conduct could be reached and punished under a more narrowly drawn regulatory and statutory scheme. The directive being unconstitutional on it's face. The regulations supplementing this chilling effect by their vagueness and the discretion they vest in local boards, requires a reversal of the petitioner's conviction. This reading is indeed supported by the only prior selective service decision of this Court, which is in point, Sicurella against United States. In Sicurella, the local board had before it, the illegal recommendation by the Department of Justice, that the petitioner's conscientious objector claim be not sustained and the Court held that given this -- the presence of this persuasive though mistaken recommendation, that the conviction had to be reversed because it did not affirmatively appear in the selective service file, that the board had disavowed the unlawful and mistaken views of the Department of Justice. The final point to which I would address myself in oral argument today, leaving the remainder of rather technical arguments to our very lengthy brief is the variance question. That is the petitioner was indicted, if the Court for refusal to report for and submit to induction. In a part of our brief and I don't propose to argue, we say that that indictment fails to state in offense, because it's bad under rule seven of the rules of criminal procedure. But that aside, concededly the petitioner reported, the Government doesn't deny that. He then, went to the induction center and when there, refused, the records shows, to obey certain orders by induction center officials that he submit to processing. He was never given an opportunity to refuse to submit to induction. Submitting to induction, as this Court had occasion, in Mr. Justice Douglas' opinion for the Court in Billings and Truesdale to consider at some length is a well defined orderly step in the process of selection of man into the Armed Forces of the United States.
Warren E. Burger: What do you say he did, if he did not refuse to submit to induction?
Michael E. Tigar: Mr. Chief Justice, there is an offense. It is a duty of a registrant to obey the orders of the induction center officials. And the failure to perform that duty can be prosecuted under Section 12 (a). We have here therefore a case that is on all force with Stirone against United States, in which the indictment charged a conspiracy respecting the importation of sand into Pennsylvania and the proof at trial showed a conspiracy involving both the importation of sand and the exportation of steel. In other words, the proof of trial was quite different from the offense with which the petitioner was charged. And, I would say that that is a not inconsiderable problem, given the large number of these offenses that are being prosecuted in the Courts, it devolves upon the Government with a special burden, I think to plead with accuracy and above all to present to the grand jury all of the facts. So that at the time the charge is laid, there's been a thorough and full consideration of what it is the defendant should be prosecuted for.
Warren E. Burger: Well perhaps, I didn't make my question clear enough, Mr. Tigar. If the man presents himself at the induction center and let us say refuses to take the medical examination or refuses to fill out forms, as he refused to comply with induction orders.
Michael E. Tigar: He has Mr. Chief Justice, refused to comply with that part of the induction process that deals with the physical and mental examination.
Warren E. Burger: Is that an offense under the statute?
Michael E. Tigar: Yes, it is. It's an offense under the regulations in the statute, Section 12 (a) of the Act, makes it a crime to refuse to perform any duty under the regulations. The regulations make it a duty to comply with those orders of induction center officials.
Warren E. Burger: But do I understand that you're to say that he did not refuse to comply with induction orders, which the statute contemplates to make out an offense?
Michael E. Tigar: No, Mr. Chief Justice that is not my point. My point is that if he committed any offense at all, it was the offense of refusing to obey orders that he take physical and mental examinations at the induction center. And it was not the offense of which he was indicted, the refusal to submit to induction, which is a very precisely defined offense in the Selective Service and Army regulations, which this Court had before it, in Billings against Truesdale.
Warren E. Burger: And was that raised at the trial?
Michael E. Tigar: The variance question? No, Mr. Chief Justice it was not raised at the trial. If the issue arose during the trial and I think from the record in the Court of Appeals, the contention that was focused on was the failure of the indictment to inform the petitioner of the offense with which he was charged. I think that this question is fairly composed within that. And it is certainly a question upon which certiorari was granted.
Warren E. Burger: Is it your position that every destruction or failure to carry a draft card in possession is an exercise of First Amendment rights?
Michael E. Tigar: Mr. Chief Justice, the destruction question I believe is foreclosed by the Court's decision in O'Brien against United States. It is our position that under the circumstances of this case, in which the surrender of the card was a part of a constitutionally protected course of conduct that it was a protected First Amendment activity. That is --
Warren E. Burger: Assuming that it's surrender, the act of surrendering falls in that category, does that mean the actor is forever thereafter excused from complying with the requirement to carry the draft card in its possession?
Michael E. Tigar: I would say not Mr. Chief Justice, although it's a question that had not occurred to me until you asked it. If the board would have send him another card and if his failure to possess it is unrelated to a course of conduct in which he's exercising his First Amendment right of dissent. Then, I think that would be a different case than the one that we have before us. Our point there is only that there is a difference as I believe, the Court said in O'Brien between permanently rendering one certificate unavailable and the abandonment of it. And that there has been by the Government no showing that this conduct by the petitioner or similar conduct by others across the country is interfered with the operation of the Selective Service System. Thus, we do not have a showing by the Government that the countervailing interest is paramount, cogent, important, strong or any of the other words, which the Court has used in defining the permissible scope of limitation of speech and non-speech conduct, when they're brigaded together.
Potter Stewart: Is it the duty of the board to send somebody another card, when it learns that that person's card has been -- or learns from third parties, (Inaudible) that person's card has been lost or destroyed?
Michael E. Tigar: I find in the regulation Mr. Justice Stewart no statement that the board has such a duty.
Potter Stewart: I suppose a registrant who loses his card, it's really his own negligence or carelessness or because it's stolen or something that can apply and get a new one.
Michael E. Tigar: Yes, he can a duplicate card. The difficulty, it was another difficulty with these regulations of course, is that if the board gets a card, which the registrant has lost, it has no way of knowing the reason why he is abandoned it. And there's no provision under the regulations to give him a hearing. Indeed, in this record the board never had any evidence that the petitioner surrendered his card. Selective Service certificates aren't even in the file. I don't know where they are. The only evidence the board had was the United States Attorney's letter.
Potter Stewart: Well, if that was here say evidence, but there's no dispute about what did happen?
Michael E. Tigar: There is no dispute. No, but I think it underscores one of the dangers in this regulatory scheme sir. I want --
Warren E. Burger: Do they need a regulation of any kind to guide the board in what to do if a trashed card turns up under some lost and found process? Do they need a regulation to tell the board to send that card to the registrant again?
Michael E. Tigar: No, Mr. Chief Justice, I would not say that they would. And if the actions of boards were limited to sending the card back to the registrant, we wouldn't have the case we have. It's only when the board seeks to use the coming into its office of card, as the predicate for deprival of a benefit conferred with the statute in regulation that a quite serious congressional authorization and due process problems is raised.
Warren E. Burger: Would it make a difference in that situation, whether the board was aware that it had been a deliberate disposition of the card, as compared within inadvertent loss of the card?
Michael E. Tigar: No, Mr. Chief Justice, it would not make a difference, unless that determination were made after the kind of adversary hearing, which this Court has in other cases involving imposition of sanctions regardless indispensable.
Warren E. Burger: Well, do I understand you to be suggesting that if the card shows up that the board by any process, they must hold an adversary hearing to determine whether it was lost or deliberately thrown away?
Michael E. Tigar: It is our position that the regulations are invalid for failure to provide such a hearing. Yes, that seems reasonable that if the board is going to take away the registrant statutorily and regulatory mandated position in the manpower pool, that it ought to have some means reliable, fair, orderly means of informing itself. That is our position. In conclusion, I find it quite difficult to state my sense of urgency about this case. And Mr. Ruckelshaus perhaps set our theme for us yesterday in Breen. There is today a rising tide of protest activity. Much of that activity involves conduct, which under this Court's decision can clearly be punished. That is not the issue in this case. The war in Vietnam is not the issue in this case nor its conscription. The issue is whether having chosen to fight a war in Vietnam with a conscript army. We ought to tolerate in doing so, departure from the principle, that delegations of power are mistrusted when personal liberty is at stake. That no man should be condemned before his heard. And that however outrageous a man's political conduct, it cannot be punished by invoking a system of rules which are vague and overbroad on their face. I think if we depart from these principles than in these very difficult times we've constitutional compact is more than dishonored, it will become the cruelest of illusions.
Warren E. Burger: Mr. Ruckelshaus.
William D. Ruckelshaus: Mr. Chief Justice and may it please the Court. I think again today we find ourselves at the outset faced with the same problem that we faced at the outset of the Green case. And that is that throughout both Green and Gutknecht, throughout the briefs file by the petitioners in both cases and throughout the amicus briefs filed in both cases, there is this overtone or undertone of accusation against the Selective Service System focused in on the Hershey directive, somehow implying that the reason people are being declared registrants are being declared delinquent in this country today is because of their protest activities. Now, I don't happen to believe that that is true. However, even if it is true, it has not been proven in either one of these cases. Let me give just one fact that was omitted. On December 20th Mr. Gutknecht was declared delinquent. The Hershey directive was issued in October. On December 9th at page 41 of our brief is reprinted in Breen. The brief in Breen has printed the joint statement of then Attorney General Ramsey Clark and General Hershey, specifically, repudiate the idea that any registrant could be inducted or his induction could be accelerated, because of his belief, because of any protest activity unrelated to any violation of a delinquency regulation that he engaged in. In the court below --
Potter Stewart: Where? I can't find that, I'm looking for --
William D. Ruckelshaus: That's on page 41 of our brief, Mr. Justice Stewart not in this brief.
Potter Stewart: Thank you very much.
William D. Ruckelshaus: Now, this as the boards in the Selective Service System had this directive or had this joint memorandum of General Hershey and then Attorney General Clark before them after they had the Hershey directive before them. In the court below, on page 35 of the appendix, the Court states, defendant now claim that he was being unlawfully punished for his political views on the Vietnam war and states that the board's punitive action was in violation of his First Amendment Rights. This is the Appellate Court speech. The District Court however found that there was no evidence at trial to support defendant's contention that his delinquency order was based upon his political views. The District Court found that the delinquency order was based upon the defendant's violation of the regulation that he had the required cards in his possession at all time, that's what involved in this case.
William O. Douglas: I thought something different was involved? Certainly, we don't sit to pass judgment on whether the large number of protest result in revocation of classification. We are only concerned with this man and I thought the question was whether or not as a matter of procedural due process or statutory requirement, he should be entitled to a hearing on whether or not what the District Court said and the Court of Appeals said is true.
William D. Ruckelshaus: Mr. Justice Douglas that is certainly part of this case, but what I am attempting to do at the outset is define narrowly just what it is involved here.
William O. Douglas: It seems to be that would be the narrowest one, -- as a matter of statutory, not constitutional.
William D. Ruckelshaus: I think that's correct Mr. Justice Douglas, they have launched in their brief a rather massive attack on the delinquency regulations themselves saying that they were not authorized by statute that even if they were authorized, the statute is so vague, it's to be devoid of standards, then --
William O. Douglas: I don't know why, I spent a lot of time in the Oestereich case, reading the brief filed by the Solicitor General and it didn't seem to be that the attack made by this petitioner was more massive and the one made by the Solicitor General who I see is absent from this particular brief.
William D. Ruckelshaus: Mr. Justice Douglas, the Solicitor General in his brief, in Oestereich suggested that sound arguments could be made along the lines that petitioner here makes them. I think that if there is any disagreement, it would be that I would delete the word “sound.” I think an argument can be made along the lines the petitioner has made them. But I don't believe that they're sound and I think that in our brief we relate while we believe they're not.
William O. Douglas: I think you're protected by the First Amendment.
William D. Ruckelshaus: Now, Mr. Chief Justice and may it please the Court. Now, the court below decided this question on rather narrow grounds. On the validity of the delinquency regulations in acceleration within a class, within the class in this case 1-A. I think that question is covered in our brief, but I think the overall question of the validity of the delinquency regulations, as far as reclassification is concerned, is what -- is either going to be before this Court. In this case, if they decide not to take it on the narrow grounds or will be in some other cases that are pending here on petition for certiorari. And for that reason I think this argument can best be had in terms of a broader questions.
Thurgood Marshall: In this case, the man had actually has his draft card stolen from him, or burned, or lost?
William D. Ruckelshaus: If it were burned without his consent or without his knowledge. I think clearly Mr. Justice Marshall that if this happened, and it came to the board's attention, and they sent him a notice.
Thurgood Marshall: The notice says this didn't come to him, the only thing came to the board's attention was he didn't have his card. Under these regulations, is it not probable, but is it possible that a board could accelerate in?
William D. Ruckelshaus: I think it is possible that a board could do so, but I think if they did Mr. Justice Marshall, it would be a clear abuse of their discretion. And if this happened we would -- and if this is what had happened in this case, we would not be here in this Court today.
Thurgood Marshall: Why not?
William D. Ruckelshaus: Because we would have confessed there prior to coming here. Now, I think if under our interpretation of the regulations, if a regulation is violated by inadvertence or by mistake of the registrant and the board attempts to accelerate him under a strict reading of the regulations that this is a clear abuse of discretion on the part of the board. That it is only willful violations on the part of registrants and not only willful, but a violation in which the registrant shows no desire to come back in to compliance again with the regulations.
Thurgood Marshall: Was he have offered a new draft card?
William D. Ruckelshaus: He was not offered a new draft card, Mr. Justice Marshall.
Thurgood Marshall: Have you ever suggested that he apply for one?
William D. Ruckelshaus: But on page 44 of the appendix is a copy of the delinquency notice that was sent to Mr. Gutknecht in this case. And in that delinquency notice, in paragraph two it said, “You are hereby directed to report to the local board immediately in person or by mail or to take this notice to the local board nearest to you for advice as to what you should do.” Now, Mr. Gutknecht did not do that, he said that because five days later, he was reclassified that this in effect did not give him the amount of notice that he needed to bring himself back into compliance. If he had tried to get himself back into compliance by showing a willingness to possess his cards at anytime, prior to induction or certainly prior to the notice of induction, I think that again clearly the board would have been abusing its discretion by not permitting him to come back into compliance. This is consistent with our theory of the delinquency regulations not being punishment, but being remedial in their effect.
Thurgood Marshall: The regulation don't get any of that protection, none.
William D. Ruckelshaus: I --
Thurgood Marshall: It leaves it up to the board.
William D. Ruckelshaus: Well, I respectfully would state Mr. Justice --
Thurgood Marshall: Just in point at words, may as if the authority that the board has, uncontrolled authority.
William D. Ruckelshaus: Well, the board has given discretion without question under the regulation, but I think like any discretionary grant, there is -- there are times when that can be abused. And it is our contention that consistent with the analysis of civil contempt in this case that where someone attempts to bring himself back into compliance for the regulations. There's a clear abuse and in this Court --
Thurgood Marshall: I wonder if the Breen case, I would assume that he couldn't get into Court before that, could he? Your position in the Breen case, he couldn't have litigated.
William D. Ruckelshaus: In Breen he could bring himself back into compliance, by simply agreeing to --
Thurgood Marshall: But I mean when he was classified and gotten -- that notice in five days to report. He couldn't have litigated that?
William D. Ruckelshaus: No, he was not -- in Breen, he has never been given an induction.
Thurgood Marshall: No, I mean in this case. This man could litigate.
William D. Ruckelshaus: He has never been given -- Yes, he has never been given a notice of induction.
Thurgood Marshall: Well, how can this man in this case test out the discretion of the draft board, legally and of course --
William D. Ruckelshaus: He's doing it in a criminal action, which were here before this court, Mr. Justice Marshall.
Thurgood Marshall: It's the only way he could.
William D. Ruckelshaus: That's right, under the regulation, under the law, under Section 10 (b) 3 this is the vehicle which he can use to test his rights. And that's precisely what he's doing here in this Court and as a further example of what I'm saying in number 623, before this Court. Now, Troutman against United States, a confession of error, a virtual confession of error will be filled by the Justice Department, by the Solicitor General, but tomorrow where Mr. Troutman attempted to bring himself back into compliance --
Thurgood Marshall: But that won't help this man's four years.
William D. Ruckelshaus: Mr. Justice Marshall, what I'm saying is that attempting to focus what Mr. Gutknecht could have done in order to bring himself back into compliance and to focus on the fact that if the draft boards, if the boards themselves do not permit him to come back into compliance, we're prepared to confess error, we're prepared to admit that they have abused their discretion. And I think in the grant, in the regulations themselves, where it says he may -- the board itself may change its mind at anytime. And another regulation writ says it may reopen the whole proceedings as to his classification at anytime.
Thurgood Marshall: My real difficulty is that as to whether or not the Government confesses error is up to one person, the Attorney General of the United States, his uncontrolled discretion. We had the uncontrolled discretion to the board, controlled only by the uncontrolled discretion of the Attorney General of the United States. Is that your position?
William D. Ruckelshaus: Mr. Justice Marshall, I don't think that we can look at a discretionary grant assuming that is going to be abused. Obviously, with over four thousand draft boards in this country, there are abuses. I would not stand here and say they weren't, but where abuses are found, where abuses of that discretionary grant to the board are found, there is a process by which those abuses can be set right and I think just as any administrative board is given a discretion, where that discretion is abused, the person who is wrong has a power and a right to raise that wrong in the Court of law. And if it comes to the attention of those who are meant to enforce the law, then this is the way it works in any case, that the Attorney General would be the last one to admit the abuse of discretion or the Solicitor General in this Court. I don't see that that's any difference, in terms of a grant of discretion to the draft boards and it is to any other administrative agency.
Thurgood Marshall: I only raised it because you said that's what cured the discretion of the draft board. That's the only reason I'm raising.
William D. Ruckelshaus: I don't think that's only thing that cures it, Mr. Justice Marshall. I don't think the --
Thurgood Marshall: You think case like this could cure?
William D. Ruckelshaus: Could cure?
Thurgood Marshall: Sure.
William D. Ruckelshaus: Well, he has the right --
Thurgood Marshall: To raise --
William D. Ruckelshaus: That's it.
Thurgood Marshall: Nobody blocks it? You didn't it block it, you let him raise it and now it's up to you, that's the way you should think it should be done. I don't see anything wrong with that position, for me to take.
Warren E. Burger: Mr. Ruckleshaus, are you saying to us that any registrant, any draft registrant who loses his card or is otherwise dispossessed of it through inadvertence and not intent has the key to the solution of his problem by simply getting another card and putting himself back in compliance at any stage.
William D. Ruckelshaus: Absolutely, Mr. Chief Justice, this is our position. This is our position that this is clearly what is intended by the regulations themselves, when they say that the classification maybe reopened at anytime, without regard to other regulations. That he has the right, when he's reclassified to notice that he has a right to a hearing and he has the right to an appeal to the state appeal board. That the -- that these regulations read as a whole clearly draw the analogy between civil contempt that we have drawn and make then remedial. The question of punishment that Mr. Justice Marshall addressed himself to yesterday, I think is very much involved in this case as to whether the delinquency regulations themselves amount to punishment, the acceleration and that if it does amount to punishment, is it done so without due process or the Fifth and Sixth Amendment guarantee. Now, yesterday when I just mentioned in passing your question Mr. Justice Marshall, about what the punishment -- the question that bothered you that there maybe elements of punishment in the delinquency regulations. The counsel jumped with glee in his rebuttal argument that I was willing to admit there maybe elements of punishment. I think that really it would do this Court a little good to get into so many called argument of just exactly what amounts to punishment. It is our position on page 39 and following of our brief that some of the indicia of legal punishment are present here, just as they were -- the outlined in the Kennedy Mendoza case. Among those indicia that are outline of that case is their sanctions that are here, ultimately involved an affirmative disability.He is going to be restrained, if he's in the Army. Secondly, it comes in to play on finding of scienter, this is in line with our theory that there has to be a willful violation of the regulations and a willful refusal to come back into compliance for the regulations, before the board has properly exercised this discretion in declaring some one delinquent. Thirdly, the behavior to which it applies is already a crime and this is true in this case. It is already a crime of the violation to the regulations. Does it promote one of the traditional aims of punishment, in deterrence and retribution, which were named in the Kennedy-Mendoza case. Now, I think that while there are some questions about the deterrence as being only used and only defined in terms of punishment that there are deterrent aspects of this. But, there are indicia that do not point to punishment, as outlined in the Kennedy-Mendoza. Induction is not historically been regarded as punishment. Secondly, whether there's an alternative purpose maybe assigned, a non penal purpose assigned into the regulations involved. And I think delinquency regulations do have an alternative purpose. The purpose of the regulations is essentially two fold, is to induce cooperation with the Selective Service System on the part of all draft eligible men and this is where the civil contempt analogy comes in. Because if we're trying to define this in a remedial sense, that we're trying to get cooperation here, just as in a civil contempt proceeding if somebody comes back into compliance. And if he does what the regulations say, then he will be put back into his prior classification, otherwise there would be an abuse of discretion. And in this case, the purpose of the regulations is to cure what has happened and not to punish what has happened and just as in the Troutman case, we have confessed there and I think we would be willing to do so in any instance in this Court or in any Court, where it was shown that an effort was made to cure the error. The second purpose -- which is a non penal purpose, is the maintenance of the non delinquent morale. Those who do comply with the regulations, it should not, it seems to me be discouraged by the success of those who do not. And for this reason, I think there is a good purpose of the -- alternative purpose of the statute. But as I said at the beginning, I think to get into an argument in this Court about whether this amounted to legal punishment might really cause the Court to miss the point. Because the point in this case is why are we talking about punishment? We're talking about punishment, in terms of the delinquency regulations to find whether he has been deprived of due process or is stiff in Sixth Amendment rights. And what is in this case the punishment of which Mr. Gutknecht the petitioner complains. It is accelerated induction. This is what he complaints of and before he can be inducted in an accelerated manner, he has the right to refuse induction, just as he did here. And thereby, submit himself to a criminal prosecution in which he has the full panoply of Fifth and Sixth Amendment rights. And, I think this is a clear distinction between this case and the case in Mendoza-Martinez, where the Court went in to the admittedly difficult question of what amounts to punishment and what doesn't. Because Mr. Mendoza was never given a hearing, he was denationalized. He left the country, in order to avoid the grant and having left, he was immediately denationalized. He had no right to a hearing, to contest their denationalization. There was no way he could bring up a contesting of his rights and the Court there said that that was punishment and without the due process or Fourth or Fifth and Sixth Amendment rights which he should have. I think we can draw an analogy between what has happened here and a grand jury proceeding. Now, when a man is indicted under a grand jury proceeding, he is in a very real sense punished. He maybe put in jail if he is indicted and without bail, if it's a non-bailable offense or bail maybe set so high that he can't meet it, and he stayed there. He has had none of his Fifth or Sixth Amendment rights and probably a little due process at that time. But in this case, where the board itself has found him delinquent, because he's violated one of the regulations, I say the analogy between this and the grand jury is very close. And secondly, as far as the board hearing itself is concerned, he is given notice of the delinquency itself. The notice that I read, they're right on page 44 of the appendix, where it says, “Come in, until let us tell you how we can show you how to avoid a further delinquency.” In this case, he would have in my estimation, although it is contested by the petitioners, if he had asked for a hearing, he would have been given one. There's no evidence that he asked for a hearing in this case, because what was there to hear? He had turned in his draft card. They're not going to hear whether he is willing to take them back or not, there is no fact situation for the board to hear. There is a clear regulation, which Mr. Gutknecht violated and under that regulation, it's within the discretion of the board to apply the delinquency regulations, which they did in this case. Now, again under our theory, he would have the right to purge himself from this violation because I think had he shown a desire to do so and the board had refused to let him do it, we would have been the first to confess error, but he made no effort to do that. And in this case, I submit that there is no fact situation, which would have -- this Court could focus on, to say whether the procedural due process in the hearing at the board level has been violated. Now, I submit that the Kennedy-Mendoza analysis is simply not sufficient in this case to determine that what we're talking about is legal punishment. I think there are some differences, but even if you find that the line between punishment and non punishment. If you find this false slightly over the line toward punishment. I think that even if that is true, he has been given at one stage, at the end of this process, all of his Fifth and Sixth Amendment rights. He has been given a complete due process.
Potter Stewart: That is in this criminal trial, you mean?
William D. Ruckelshaus: Yes, that's right, Mr. Justice Stewart. This is the statutory framework that the Congress has setup whereby this man could raise his rights and there is no such statutory framework in the Kennedy-Mendoza situation. Now, the other argument of the petitioner was in their brief that even if it wasn't punishment, we have not provided the procedural due process that is necessary and I think in pointing out that he did receive notice, it is our contention that a fair reading of the regulations would be that he could receive a hearing, if he so requested. Now, this is a completely speculative question before this Court, because he didn't request to hear it. Either before he received the delinquency notice or after he received his reclassification. And I don't see how it can be heard to complain here, when he has not asked for a hearing. As far as the variance between the charge and the proof is concerned, I think that that is fairly stated in the brief and that I think that question, plus the argument that the affidavit itself, where indictment itself was duplicitous, boarders on the frivolous. Now, there are cases cited in our brief, which I think clearly point out that the questions involved. Yesterday, we discussed the problem of congressional authorization. And I think that in the broad sense, that the delinquency regulations are a fair grant to the administrative branch by Congress of an effort to implement what is admittedly a difficult statute. To implement a selective service law in a time in this country in which many people are opposed to the results that might occur from going into the Army. But I think that given the policy as set down by the Congress in the executive branch, that this is a fair way of implementing that policy. And that this Court should affirm the Court below and uphold the delinquency regulations as adapted by the President.
Warren E. Burger: Thank you, Mr. Ruckelshaus. Mr. Tigar.
Michael E. Tigar: Excuse me, Mr. Chief Justice, may it please the Court. If it is the Government's position that these regulations ought to be limited, the president has the power to limit them by a stroke of the pen. Selective Service System is exempt from the rule making requirements of the Administrative Procedure Act and in tomorrow morning's federal register, the position of the executive branch could be made indisputably clear. But if that is not to be done, then we accept the Government's concession that willfulness is required and that a hearing must be given if one is asked for. And this conviction must therefore be reversed, because there is in this record, in the Selective Service file, which as this Court held in Cox against United States is the sole basis of review. No finding of willfulness and there is no showing that the petitioner was ever offered a hearing.
Potter Stewart: What he had this -- I'm looking at page 30 of the appendix, which is an opinion of the Court of Appeals, which indicates that there was contained in the Selective Service board file in this case, the information as to the circumstances under which the petitioner separated himself from his draft card.
Michael E. Tigar: Yes, Mr. Justice Stewart, there is on page 42 and 43 that information, it consists of the appendix. It consists of a letter from an Assistant United States Attorney to the Deputy State Director of the Selective Service System. It would be our position that that could not be relied upon to establish --
Potter Stewart: There was information in the record, if this is accurately reproduced here in the appendix as to the circumstances under which this man and his draft card became separated, is that correct?
Michael E. Tigar: It is correct.
Potter Stewart: Indicating a willful separation on his part, is contrasted to a careless or negligent or accidental one.
Michael E. Tigar: It is true Mr. Justice Stewart that there is evidence in the record. If I said there was none, I misspoke my self.
Potter Stewart: I understood you say that there was none, I just wanted to be sure.
Michael E. Tigar: Yes, I misspoke myself, our position would be and it is there is not sufficient evidence to warrant a finding by the board of willfulness. And I believe I went on to say that there was no finding, by the board of willfulness.
Warren E. Burger: Do you think that in the trial, in the District Court there is a factual basis for finding of willfulness?
Michael E. Tigar: There is Mr. Chief Justice, a factual basis there, but the review of Selective Service decisions is on the file made by the Selective Service System and the registrant. It brings me to another point here, Mr. Ruckelshaus has said that the criminal trial that a registrant receives is a substitute for the due process hearing, which we claim he's entitled to before the agency. Of course that trial has the most constricted standard of judicial review of board determinations, particularly factual determinations of any judicial review, of any administrative action, that the Courts have the power to review.
Warren E. Burger: And by the same token the standard of proof on the Government is infinitely higher, is it not?
Michael E. Tigar: But only as to factual issues, Mr. Chief Justice. The issue whether there is any evidence in the file to support the board's determination has this Court has held the character of an issue of law. And therefore, the Government does not have the obligation of proof beyond a reasonable doubt, with respect to it. So that there is not that safeguard provided, with respect to the facts presented to the agency.
Potter Stewart: Was Mr. Gutknecht alluded in the defense that he was allowed to tender during the trial of this case? As to the -- and did he put in, as defensive matter, the First Amendment claim and so that's what I gather from the --
Michael E. Tigar: Yes, the First Amendment claims were raised --
Potter Stewart: The Court of Appeals had written that he was permitted to do so?
Michael E. Tigar: Yes. Those two were issues of law, which he would be entitled to present, yes sir.
Potter Stewart: And was in time to present. I mean he was allowed to present.
Michael E. Tigar: Yes, he was. Yes sir.
Hugo L. Black: What is your position? You assume that record does show that his conduct was willful and the lawsuit --
Michael E. Tigar: Our position then Mr. Justice Black is that the regulations are invalid as not having been authorized by Congress. That they're nonetheless invalid for failure to provide procedural safeguards and that the Hershey Memorandum is an incommunicable system of regulation or scheme regulation, which violates the First Amendment on its face so that the --
Hugo L. Black: Are you saying, valid because of what?
Michael E. Tigar: That the regulations here, the delinquency regulations, the Hershey Memorandum and the local board memorandum taken together, are a scheme for regulating dissent, which is unconstitutional on it's face. And that therefore, because the board acted in reliance upon a part of the scheme, the conviction must be reversed.
Warren E. Burger: I would understand that argument a great deal better if you were arguing to us that when he received his delinquency notice, he had asked for a hearing and had been refused a hearing but he did not ask, did he?
Michael E. Tigar: Mr. Chief Justice, the regulations do not provide for a hearing, a fair reading of Regulation 1642.14B establishes that in a case such as this, where the registrant is already 1-A, that the only hearing, that can be granted repossess in the absolute unfettered discussion of the local board. Second --
Warren E. Burger: But that is not tested out by asking for it, was it?
Michael E. Tigar: My response to that would be twofold, Mr. Chief Justice. First, the delinquency notice, although it asked the registrant to come in to a local board, says he can come in to any local board. The regulations provide that what is to happen to him there is not telling him that he's entitled to a hearing. Second, as this Court held in McKart against United States, he would be excused from fetter to exhaust because of the futility of doing so, we will forget the Selective Service board, 372 Federal 2d, 817.
Warren E. Burger: Thank you, Mr. Tigar. Thank you for your submission. Thank you for your submission, Mr. Ruckelshaus. The case is submitted.


Warren E. Burger: We'll hear arguments next in Carter v. Kentucky. Mr. McNally, you may proceed whenever you are ready.
Kevin Michael McNally: Mr. Chief Justice, and may it please the Court: This case comes here from Hopkinsville, Kentucky, after petitioner was convicted of third degree burglary and persistent felony offender in the first degree, and was sentenced to 20 years. The issue that this case brings here today was presented to the Kentucky Supreme Court which affirmed Mr. Carter's conviction. The issue is whether, under the circumstances of this case and by virtue of the Fifth and Fourteenth Amendments to the United States Constitution, a protective or prophylactic instruction must be given upon the defendant's request regarding the defendant's exercise of his Fifth Amendment privilege.
Speaker: Can we begin with the proposition that the State of Kentucky through its Legislature as a matter of policy has said that no one should talk about this issue to the jury?
Kevin Michael McNally: The Kentucky Legislature as did most states passed a statute permitting the defendant to testify and stating that no comment shall be made.
Speaker: That's what I'm addressing myself to, the prohibition against comments.
Kevin Michael McNally: The instruction itself does not specifically address the issue of a protective instruction. The Kentucky Supreme Court has on a number of occasions interpreted that statute to mean that no comments at all may be permitted regarding the defendant's failure to testify.
Speaker: And the question here that you're bringing to us is not whether this would be a sensible and a sound thing to do but that the Constitution requires that the prophylactic instruction be given on request even though the Kentucky statute says it is not to be?
Kevin Michael McNally: Well, I must disagree on one minor point with you, Mr. Chief Justice. The statute doesn't address the issue of instruction and the Kentucky court has held, taken conflicting positions on that point.
Speaker: But doesn't the statute say it should not be mentioned?
Kevin Michael McNally: It says no comments shall be made.
Speaker: Yes. Well, what does that mean, except--
Kevin Michael McNally: Well, as this Court indicated in Lakeside, what the prohibition in Griffin, for example, was that no adverse comment shall be made. And that would be, we think, a reasonable interpretation of the statute. But we do not bring here a question of state interpretation. And as the Chief Justice pointed out, this is not a case of what is the most desirable rule, although our position is, we submit, by light of the vast majority of authorities, the most desirable rule. The question here is, as referred to in Cupp v. Naughten, what exactly does the Constitution specifically require? And that's what makes this case different from any other alleged instructional error. We want to indicate right at the outset our sensitivity to the undercurrent in the Commonwealth's brief that somehow we're asking this Court to be a sort of author for Kentucky form instructions. Again what makes this case different is the basic, fundamental nature of the Fifth Amendment privilege. It takes it out of the realm of all other, we think, alleged instructional errors that might be presented to this Court at various times. We present two analyses for the Court's considerations, the first finding its genesis in the Fifth Amendment privilege itself, the second in the Due Process Clause of the Fifth Amendment. And while, of course, these themes are interrelated, for a logical analysis we have discussed them separately in our brief and will do so in this argument, if the Court permits. We have no intention of dwelling on the facts of this case but there are two principal factual themes we would like to emphasize. What they do is dramatize legal principles which perhaps in another case we might be arguing in the abstract. The first of those is what we would call the "roar" of the defendant's silence at trial. There was a continuing theme throughout this trial that the defendant refused to explain himself at any point in the proceedings. He refused to explain himself to the police, and this was testified to by two police officers at trial; was repeatedly emphasized by the prosecutor's questions; and even a waiver form was introduced in which, on the bottom of it in big back letters was written, "Defendant refuses to answer questions" or something... I'm paraphrasing. Not only was there mention during the testimony regarding the defendant's refusal to give his reasons why he was admittedly arrested under incriminating circumstances, but the prosecution's arguments to a subtle extent, we will admit, but the prosecution's arguments certainly brought that to the attention of the jury.
Speaker: --Well, is your submission limited to the fact situation here, or are you urging as a general proposition that upon request, upon request by the defendant, the instruction that you sought and was denied must be given?
Kevin Michael McNally: That is our alternative contention.
Speaker: That's on the alternative; I see.
Kevin Michael McNally: In the alternative. Of course, our primary reliance is on the facts of this case. However, would we not have these, what I would call, illustrative facts in this case, of the legal principles, we would still be making the same arguments.
Speaker: Well, now, while I have you interrupted, may I ask, and do you also take the position that if the trial judge decides to give an instruction like this without a request, that you should be at liberty to object?
Kevin Michael McNally: Well, that would depend on the individual state procedure.
Speaker: That was decided in Lakeside.
Kevin Michael McNally: That was the issue decided in Lakeside, and we certainly don't question Lakeside. It's one of the primary authorities upon which we rely. The other facts at trial which emphasize the defendant's refusal to testify or explain himself were... even the defense argued, for example. Defense counsel attempted to deal with this issue as best he could without the protection of the trial court, and the only way he apparently thought he could do that was to mention the fact, what was, in fact... it was obvious to the jury and everyone else in the courtroom... and state that the defendant had the right not to testify. He stated that, in fact, the defendant doesn't have to do anything. Now, while that is constitutionally accurate, we submit that it may have been perceived as either inaccurate by the jury or perhaps even arrogance on the part of defense counsel. This illustrates why we need the court's protection. There is no effective way a trial lawyer can deal with this issue, at least under the circumstances of this case, other than in instruction from the court. For example, he couldn't tell the jury, even if that were permitted, why the defendant did not testify, for to do so, would bring about the exact evil he was trying to avoid. The other illustrative factual theme in this case is that the defendant in this case, we submit the record demonstrates that he did not, he declined to testify for reasons which were neutral on the question of guilt or innocence. The defense counsel made it clear that in an in-chambers hearing that possibly the only reason defense... I'm sorry... the only reservation he had regarding testimony was his fear of impeachment. I don't think that any reasonable reading of the record would give rise to the challenge that the Commonwealth makes that impeachment was not the reason why he did not testify. And indeed, in the court below the Commonwealth admitted in their brief that "most definitely the impeachment influenced the appellant in his decision not to take the stand. "
Speaker: I still don't understand why the reason is of interest to us?
Kevin Michael McNally: Merely because it illustrates, Mr. Justice Marshall, the point that has been made in perhaps the abstract in other cases, that there are neutral reasons why a defendant would decide not to testify at trial. It is illustrative, it is not necessary.
Speaker: Well, does the Fifth Amendment say anything about that?
Kevin Michael McNally: No, it doesn't, Mr. Justice Marshall.
Speaker: Does any other law say anything about that?
Kevin Michael McNally: No, it doesn't, and--
Speaker: Well, why is it then of interest to us?
Kevin Michael McNally: --It's relevant to the Fourteenth Amendment issue which we are also raising.
Speaker: How is it relevant?
Kevin Michael McNally: It's relevant because the Fourteenth Amendment--
Speaker: The defendant has a right to do it for any reason under the sun.
Kevin Michael McNally: --Under the Fifth Amendment, absolutely, Mr. Justice Marshall.
Speaker: Well, then, why is the reason important?
Kevin Michael McNally: Because this Court's interest and concern in due process analysis has been the truth-seeking function, and we submit that under the facts of this case the jury--
Speaker: Well, how do you get truth by a man not testifying?
Kevin Michael McNally: --The point we are trying to make, Mr. Justice Marshall, is that the jury naturally and we think--
Speaker: I withdraw the question because I'm holding you up.
Kevin Michael McNally: --concluded that... well, I think it's an important question. The jury concluded that the defendant didn't testify as jurors often will because he was guilty, and in fact that was not the case. In that sense, under a due process analysis, a protective instruction is necessary because it is relevant to the truth-seeking function of the trial, and in that sense this fact is relevant.
Speaker: If a judge on his won initiative gave such an instruction, I suppose he might be subject to an objection that he was calling attention to something which the defendant wanted to avoid?
Kevin Michael McNally: Conceivably. That was the issue in Lakeside, and the issue that was--
Speaker: Is that the rationale of it?
Kevin Michael McNally: --Excuse me, Mr. Chief Justice? Is that the rationale of that side of it? We frankly... frankly, we disagree with the argument that a defendant in some cases will not notice, the jury will not notice that a defendant does not testify. However, that is not essential to this particular case and again, we are not suggesting that Lakeside was wrongly decided. Indeed, we put great reliance on the rationale of this Court in Lakeside.
Speaker: Well, Mr. McNally, I gather then the argument you're now making is largely a due process argument, not a Fifth Amendment argument, is it?
Kevin Michael McNally: We're making both, Mr. Justice Brennan.
Speaker: I know you are, but here, for this purpose, you're saying, due process required this instruction in the context of these facts.
Kevin Michael McNally: That's correct.
Speaker: And that's your reliance--
Kevin Michael McNally: That's correct.
Speaker: --Your alternative is that in any event the Fifth Amendment, in every case where you ask it, requires that the instruction be given.
Kevin Michael McNally: Mr. Justice Brennan, that is exactly our position. And I'll explain why that is if I may. Now, we differ with the Commonwealth's suggestion that we're asking this Court to expand the parameters of the Fifth Amendment privilege. We think that our position can withstand an historical analysis, and we think that for these reasons. At the time of the enactment of the Fifth Amendment a defendant was not permitted to testify. This was, as this Court recognized in Wilson v. United States, considered a protection for him. In other words, there was a feeling at the time that a defendant if he were permitted to testify would be under some form of compulsion to do so lest the jury take an adverse inference against him. In approximately 1878 Congress, as did many states, passed statutes permitting defendants to testify. Once they did so, we think that a... the jury, naturally, will take an adverse inference against a defendant who declines to exercise that privilege. Since at the time of adoption of the Fifth Amendment the defendant was not permitted to testify, he was not expected to do so. Now, he is. And in that sense we request a protective instruction under the Fifth Amendment so that this Court can restore the original balance. We are not asking the Court to tip the balance in the favor of the defendant.
Speaker: Do you think the jurors were always familiar with the precise state of the legislation in the state as pre-1915 or post-1915, that the defendant was not allowed to testify or he was allowed to testify?
Kevin Michael McNally: I have never read a trial transcript from 1850, Mr. Justice Rehnquist, but I think it's reasonable to conclude that jurors at that time knew that the defendant was not permitted to testify. Now, whether counsel told them that or whether they knew it from being intelligent and civic-minded citizens, I don't know, but I think that is a reasonable conclusion.
Speaker: Was there anything to prevent in those days defense counsel from telling the juror that even if the Court or the judge didn't do it?
Kevin Michael McNally: Not that I am aware of, Mr. Chief Justice. We also submit that our Fifth Amendment analysis finds great support in prior decisions of this Court. In Wilson v. United States, this Court first held that comment, adverse comment was prohibited. It did so under a federal statue and not under the Fifth Amendment. In Bruno v. United States shortly thereafter this Court dealt with the exact issue presented here and ruled, not as a matter of federal constitutional law, but pursuant to the federal statute, that an instruction was required. An unanimous Court decided that. Subsequently, in Malloy v. Hogan, this Court held the Fifth Amendment applicable to the states through the Fourteenth Amendment. Immediately after that the Court dealt with the issue presented in Wilson in Griffin v. California. And the Court stated at that time that the federal statute while obviously not constitutional in nature is merely an enactment of the Fifth Amendment, and the Court suggested that you could substitute the words Fifth Amendment for the word Act and the spirit of the self-incrimination privilege would be captured. We submit that as Wilson was translated into the holding in Griffin, so Bruno must be translated into the result we seek here. In Malloy v. Hogan this Court rejected the argument that somehow a watered-down version of the Fifth Amendment privilege should be applied to the states. We submit that that same analysis produces the result that we seek in this case. Another Fifth Amendment point that we would like to address ourselves to is the penalty theory, if you will, of Griffin. The Court might ask, where is the compulsion in this case? Where is the penalty extracted? Well, the penalty that we identify in this record, and indeed in any case where a defendant doesn't testify, is the unchecked speculation, if I could use the words of the dissenters in Griffin, what the jury will do in regard to the defendant's failure to testify. That is, we think a constitutionally significant form of compulsion... and in that sense, this case fits within the Griffin analysis... and indeed, we would submit, as the Court may recall, in Griffin there was certain protective comments by the California trial judge. He indeed told that jury that the defendant in fact had a constitutional right not to testify. He also permitted them to take adverse inference from the failure, and the prosecutor also commented, but in the sense that a protective instruction was given in Griffin, this case is even more dramatically illustrative of a penalty extracted for exercise of the privilege.
Speaker: Mr. McNally, if you're right... compelled on request the giving of this instruction, why doesn't the Fifth Amendment also require the giving of the instruction whether or not a request is made?
Kevin Michael McNally: Well, that issue is not presented--
Speaker: I know it's not.
Kevin Michael McNally: --in this case.
Speaker: I know. We're looking down the road.
Kevin Michael McNally: There is a countervailing legitimate, we think, state interest in the situation that you refer to, Mr. Justice Brennan, and that is the requirement that issues be first presented to a trial judge so that he may rule upon, he may in fact, give an instruction upon request. Therefore, the whole issue is eliminated. That distinction is a very important--
Speaker: My hypothetical is a case in which no request is made. Indeed, it's not made because counsel would, thinks it would not be helpful and perhaps might be harmful to the accused. But nevertheless, if it must be given on request, because the Fifth Amendment requires it, why must it not be given just as a matter of course?
Kevin Michael McNally: --Well, this Court has held in cases such as Wainwright v. Sykes, for example, that trial counsel can waive issues of federal constitutional negligence.
Speaker: If he doesn't request it, it is to be treated as if he waived it, is that it?
Kevin Michael McNally: That would be our position, although that is again not presented--
Speaker: That would be an intelligent waiver.
Kevin Michael McNally: --It may be under the facts--
Speaker: Well, how could it be an intelligent waiver if it wasn't mentioned?
Kevin Michael McNally: --Well, it may be a tactical waiver. Whether it's intelligent or not, Mr. Justice Marshall, we'd have to examine the particular case.
Speaker: Well, it may be the reason for no request may be more than a waiver, it may be an affirmative reason as, by the reasoning of the dissenting opinion in Lakeside.
Kevin Michael McNally: If trial counsel waives his right to this instruction?
Speaker: As a matter of tactics.
Kevin Michael McNally: Well, as defense counsel in Lakeside did exactly that.
Speaker: Exactly. And there was a dissenting opinion, joined in part by Mr. Justice Marshall, that agreed with the reasoning of defense counsel. Does that make it great?
Kevin Michael McNally: We would like to turn, if the Court permits--
Speaker: Dissenting.
Kevin Michael McNally: --once again to our Fourteenth Amendment analysis and make some--
Speaker: Could you tell me, do the counsel in Kentucky argue before or after the judge instructs?
Kevin Michael McNally: --The counsel argues after the judge instructs, Mr. Justice White.
Speaker: And did you try to get him to join you?
Kevin Michael McNally: I did not, Mr. Justice White.
Speaker: Trial counsel did suggest to the jury that the defendant wasn't required to take the stand--
Kevin Michael McNally: He did.
Speaker: --and that... now, doesn't that bear on your due process argument? The prosecutor didn't say to the contrary. And the judge certainly didn't indicate to the contrary.
Kevin Michael McNally: Well, we would disagree on a few points, Mr. Justice White.
Speaker: I only made one.
Kevin Michael McNally: We would disagree on your general point to the extent that the prosecutor did not take any advantage or did not denigrate the particular right; to that extent. Secondly, I think this Court recognized in Taylor v. Kentucky that while counsel's arguments may be relevant in the overall due process analysis, counsel's instructions are not a... I'm sorry... counsel's arguments are not a substitute for the court's instructions.
Speaker: But, in Kentucky, I take it, that counsel can tell a jury what he thinks the law is, even though the judge hasn't instructed on it?
Kevin Michael McNally: I don't believe that's the law of our jurisdiction.
Speaker: Well, he just did, this counsel did.
Kevin Michael McNally: He did it in contravention of Kentucky law and he got away with it without objection from the prosecutor. And I think the reason for that may answer your question. The reason why he got away with it is--
Speaker: I just bring it up because it does bear on your due process argument in this particular case.
Kevin Michael McNally: --I would agree that it's relevant, Mr. Justice White, and I would submit that the reason why there was no objection by the prosecutor is that defense counsel simply can't deal with the issue and he may have been in the eyes of the jury hurting himself. Because without the support of the trial judge his statement of the law may be dismissed as either inaccurate, as we mentioned before, or just simply arrogant, stating that the defendant doesn't have to do anything, may not have sat well with the jury.
Speaker: And if your get away from the facts of this particular case, then the question is simply the one reserved in Griffin, I take it? Whether, in every case, regardless of the factual setting or anything else, an accused is entitled to an instruction that his silence need not be considered, if he requests such an instruction?
Kevin Michael McNally: Well, we think that issue, the per se rule, if you will, that's presented in this case... we argued it below and it's well presented... the Court may not choose to reach that, but we think it is framed in this case, Mr. Justice Rehnquist.
Speaker: And it was explicitly left open in the Griffin case, wasn't it?
Kevin Michael McNally: I believe that also was mentioned in Lakeside, Mr. Justice Stewart.
Speaker: What if a state's decided that the instruction about the burden of proof and the presumption of innocence was so basic, so fundamental to the whole proceeding, that it required that before any evidence was received the judge give the certain general instruction explaining both, in every case?
Kevin Michael McNally: Before any evidence is received?
Speaker: Before any evidence; and would explain it, as a good many judges do now, in both federal and state courts, on the theory that then the jury will better understand the evidence as it comes in, and they will not be sitting around for two or three days wondering what the defendant is going to say in answer to these charges.
Kevin Michael McNally: Mr. Chief Justice, I don't know that the Due Process Clause goes to the timing of a particular instruction. I think any petitioner would have to be satisfied if the court instructs the jury, and I don't think that the timing of that particular instruction would be an issue of constitutional magnitude. If I may address myself to just a few points in terms of a due process analysis, again, number one, this instruction deals with a specific constitutional right. Number two, this Court has recognized that a defendant's testimony is expected, even in a case that doesn't present the facts that we have here. Number three, instructions do work, and it's basically a pillar of our criminal justice system. Instructions are effective, and this Court recognized that, of course, in Lakeside. Number four, silence is ambiguous. Again, if you take away the facts of this case, silence, as this Court noted in Doyle v. Ohio, pretrial is ambiguous; it is even more so at trial, insolubly ambiguous. Again, the truth-seeking function is undermined because there may be reasons why a defendant such as Mr. Carter declines to testify, unrelated to guilt or innocence. And the final two points are that, while it's not dispositive of the due process issue presented, we find widespread support in the overwhelming number of jurisdictions. Our research has only disclosed three, or perhaps four, jurisdictions that don't give this instruction upon request. And finally, the last criterion is that state interest. And I would ask the Court to examine what important State interest is at stake here? The only articulated interest in the Commonwealth's brief is that the instruction should be prohibited in the defendant's own interest, and we submit that the Commonwealth stating that it's in the defendant's interest not to get a protective instruction is not the kind of basic exercise of a state's jurisdiction which need be given due... perhaps it needs to be given due deference but not undue deference in any Fourteenth Amendment analysis. And unless the Court has questions, I will reserve--
Speaker: I have just one question. You've said several times that you think the Lakeside case helps you. I'm not sure I understand why you think it helps you.
Kevin Michael McNally: --Well, the holding of it is really neutral on the question presented in this case.
Speaker: Maybe it's neutral, but you seem to think it helped you.
Kevin Michael McNally: Well, what I was referring to was the language, and specifically on two points: the first being that juries will notice a defendant's failure to testify, even if in that case defense counsel takes great pains to avoid any mention of the issue. We think that is a significant point in this case. And the second point being that protective instructions are effective. There was language in the majority opinion which addressed itself to those two, and we think they are important considerations for our due process analysis. To that extent.
Speaker: Also, the definition of that word comment in Lakeside helps you, I think.
Kevin Michael McNally: Again, Mr. Justice Stewart, we agree. We'll reserve the remainder of our time for rebuttal.
Warren E. Burger: Very well. Mr. Bullock.
Robert V. Bullock: Mr. Chief Justice, and may it please the Court: The facts in this case point overwhelmingly to the guilt of the petitioner, in this particular instance. If you will recall, Officer Ellison was driving her cruiser down the street, saw an alley, looked in the alley and saw something suspicious. She backed up, shined her light down the alley, saw two individuals crouched. They took off running, She went down the alley and saw that there was a hole in the side of Young's Hardware Store. She gave out a call on her police radio for Officer Davis who was in the vicinity. He saw petitioner running down an alley; he gave chase. They apparently ran parallel for a period of time, at which time Officer Davis cut across and almost ran into the petitioner. When Officer Ellison saw him, saw the individual at the hardware store, he was carrying a gym bag, what she described as a gym bag. He had on distinctive looking clothing, sort of orange pants, and so forth. He was apprehended by Officer Davis--
Speaker: How does this, counsel, how does this bear on the issue that's presented here?
Robert V. Bullock: --I believe two-fold, Your Honor. If it please the Court, first, I would think the Court would be reluctant to reverse any case on which there was overwhelming evidence of guilt. And second--
Speaker: Well, then, are you suggesting a harmless error argument?
Robert V. Bullock: --We have in our brief; yes.
Speaker: What you're telling us now is harmless error argument?
Robert V. Bullock: Yes, sir.
Speaker: Counsel, have you read Brewer v. Williams?
Robert V. Bullock: Yes, sir. I understand that position. The second issue, if it please the Court, is that it would appear to us that there was very little likelihood under any circumstances that the defendant in this particular case would have taken the stand. As such, we are suggesting that this in effect may be a manufactured type constitutional issue, because the facts were so overwhelming. It would be very unlikely for any defense counsel to recommend to his client that the would take the stand.
Speaker: Couldn't that easily have been solved by giving the instruction, if he was so guilty? Why didn't you give the instruction? Why didn't you object to it if he was so guilty?
Robert V. Bullock: Why wasn't it objected to? The lower court in Kentucky was bound in effect the Supreme Court of Kentucky in its decision in Green v. Commonwealth.
Speaker: It had no option.
Robert V. Bullock: That's basically true. That's right.
Speaker: Then they would have had to do it whether he was guilty or innocent, wouldn't they? Wouldn't they?
Robert V. Bullock: Yes.
Speaker: Wouldn't they have to take the same position?
Robert V. Bullock: That's right.
Speaker: Well, then, what are the facts of interest to us?
Robert V. Bullock: The point, I guess, I was pointing to, Mr. Justice Marshall, is that this was a foregone conclusion and in effect the constitutional issue itself was manufactured because they knew that he wasn't going to be able to take the stand in a case like this.
Speaker: Well, isn't the constitutional issue the only issue before us?
Robert V. Bullock: Well, there's two constitutional issues according to my brother, Mr. McNally.
Speaker: Well, do you think we took the case to decide a harmless error question?
Robert V. Bullock: No, sir.
Speaker: Well--
Robert V. Bullock: To find a Fifth Amendment violation in this particular case, there must be a finding of compulsion under the Fifth Amendment cases. We would agree that there is a difference in some of the cases which indicate, the trilogy of cases, Bruno, Griffin, and Lakeside, which indicate maybe a preference for this type of an instruction. The Supreme Court of Kentucky, as you've noted, does not believe that the instruction should be given, and in fact they have stated on numerous occasions that they believe it does more harm than good. On the other hand, as we've noted, there is some indication that this Court would prefer the instruction. As has been pointed out many times by the Court, differences or incongruity within the limits of fundamental fairness is at the heart of our federal systems. The formulation of procedural rules to govern the administration of criminal justice in the various states is properly a matter of local concern. Of course, that's always subject to the parameters of the United States Constitution.
Speaker: --Are you suggesting Kentucky is kind of a lean instruction state where the preference within constitutional limits, not just on this particular kind of a charge but on any charge, is that you just don't charge the jury at trial?
Robert V. Bullock: Well, that has been stated in at least one Kentucky case, but the State... my point is, the State of Kentucky can be different, if it chooses to be, as long as it falls within the parameters of the United States Constitution.
Speaker: Is that parameters or perimeters?
Robert V. Bullock: I thought it was parameters. Maybe it's perimeters. In discussing compulsion... and this Court has looked at cases similar to this, but, this issue... the defendant in this case did not testify. We suggested why he probably did not testify. But since he did not testify, there was in fact no compulsion to testify under the Fifth Amendment. The procedures that were used were the normal procedures of a trial, such as required for a decision on the defendant's part. He has to decide in a case like that whether he wants to testify or not to testify, and this is the normal state of trial procedure, It is not compulsion by the State of Kentucky in a situation like this.
Speaker: Would you think that knowing in advance what kind of instruction the judge would give one way or the other would have any influence on his decision?
Robert V. Bullock: It might.
Speaker: Then aren't you admitting that there is some compulsion, if there's no instruction when he wants it?
Robert V. Bullock: I don't believe so.
Speaker: Well, if you say that the fact the judge is not going to give the instruction may influence him not to testify, then isn't that a factor that may tend to compel him not to testify?
Robert V. Bullock: But, sir, this is not a compulsion by the State of Kentucky. This is the normal trial situation as opposed to something that the State has compelled upon the defendant.
Speaker: Well, the State has a rule that the judge can't give this kind of instruction. That rule, it seems to me you have just suggested, does have an impact on his decision.
Robert V. Bullock: Yes. The Court--
Speaker: But you're saying it is not a form of compulsion.
Robert V. Bullock: --Well, the court has held in the past that it's not a form of compulsion for a defendant to have to make hard choices in the case, such as, the Court has held that when an individual decides to take the stand and testify in his own defense, there can be cross-examination, and cross examination as to the guilt on that particular case. And that's not considered compulsion. Likewise, the Court in a single verdict death penalty case has said, even though a man may have to plead for his life, his very life, the fact that if he gets on the stand and may be cross-examined, this is not considered compulsion; McGautha case. The supposition that a failure of a particular defendant to testify is a supposition, it's not a proven fact as such. No one knows what an individual jury will think or will not think.
Speaker: What would you imagine a jury would think, other than that the man is guilty?
Robert V. Bullock: I think that they may well not notice at all.
Speaker: So they're not, they wouldn't think anything of it?
Robert V. Bullock: They may not notice at all, or discuss it.
Speaker: They may not notice it?
Robert V. Bullock: In... that's been part of the supposition of the Kentucky courts on this particular issue. But there is an additional part of the instruction in this particular case, if you will recall. The court in this case instructed that the jury shall consider the evidence alone and in arriving at its decision on guilt or innocence, the failure to testify is obviously not evidence, and its consideration would have violated the court's instruction. Therefore--
Speaker: May I ask just one more question.
Robert V. Bullock: --Certainly.
Speaker: Do you want me to assume that there is a possibility that throughout the jury proceedings not one of the 12 will mention the fact that he didn't take the stand?
Robert V. Bullock: That there is a possibility?
Speaker: Yes.
Robert V. Bullock: Yes, sir.
Speaker: There is a possibility that that will not happen?
Robert V. Bullock: I'm sorry, maybe I misunderstood your question. Would you rephrase it, please?
Speaker: You said originally that you could assume that nobody noticed it. Am I to assume that not one of the 12 noticed it?
Robert V. Bullock: In a given case?
Speaker: Yes.
Robert V. Bullock: There could be such a case; yes, sir.
Speaker: Go ahead.
Robert V. Bullock: We would take the position that to reverse this particular case on the no inference instruction would stretch the constitutional principles behind the Fifth Amendment in an unprecedented manner and would in effect give an inequitable result. Neither the Fifth or Fourteenth Amendments cause a penalty, since the Court has created no undue or additional pressure upon the defendant to take the stand. Any of the consequences of the silence are defendant's choice, a part of trial tactics and not caused by the courts or the statutes of the State of Kentucky. If we may, let me draw an analogy between this and the situation in Taylor v. Kentucky and Kentucky v. Wharton. In those two court cases, this Court held that under certain factual patterns where the evidence was not overwhelming, there may be a totality of circumstances that constitutionally require a presumption of innocence instruction in that case. The Court in Wharton, however, pointed out that there is not an absolute right to the presumption of innocence instruction. In Wharton it was held there was no such right to the presumption of innocence instruction. We feel that in this particular case there is no constitutional requirement to give the no inference instruction. The two types of instructions are somewhat similar. It has been attacked in the petitioner's brief, or it has been stated in the petitioner's brief, that the State of Kentucky has not been consistent, has waffled back and forth on the question of whether it's best to give the no inference instruction. Just to briefly respond, the Kentucky court has consistently maintained that no inference instruction is not in the best interests of an accused. However, in one case, at least, it by dicta said that the instruction under those circumstances might have been allowed. It was later repudiated.
Speaker: Well, hasn't the deviation by the Kentucky court been on the construction of the meaning of the Kentucky statute?
Robert V. Bullock: Yes, sir.
Speaker: What the no comment rule means?
Robert V. Bullock: Yes, sir.
Speaker: And so the Kentucky court has not been completely consistent about that?
Robert V. Bullock: That's correct; yes. At first it says that no one may comment whatsoever.
Speaker: You mean, that's the present law?
Robert V. Bullock: That is the present law, yes, sir.
Speaker: It would be that the statute means that this instruction must not be given?
Robert V. Bullock: This instruction must not be given.
Speaker: And that's the present law of Kentucky, isn't it?
Robert V. Bullock: Yes, sir.
Speaker: If the law is that no one would comment, what about the defendant's own lawyer explaining to the jury that there is a Fifth Amendment privilege, and so forth?
Robert V. Bullock: He made that, and in this particular--
Speaker: I know he made it, but your adversary indicated that he did it illegally.
Robert V. Bullock: --Yes. We pointed that out in our brief.
Speaker: So your view is that even his own lawyer in Kentucky is not permitted to?
Robert V. Bullock: That's what case law in Kentucky says; yes, sir.
Speaker: Would the question arise in the case where a guilty verdict is returned? Who is there to complain about it, then, if there's no appeal? The problem is academic then, isn't it?
Robert V. Bullock: Yes, sir. My brother, Mr. McNally, has gone through a tremendous task of trying to catalog the various states as to their holdings on the no inference instruction. We do not specifically disagree as to each of these cases in our brief. The reason is that it would have caused a brief in and of itself. We would point out that there is room for difference of opinion as to the holding of the various states, and it would be our position, more importantly, that it really isn't germane in and of itself, since conceivably there could be 49 states that require the no inference instruction and Kentucky be the lone state the other way. But as long as there was no constitutional violation, Kentucky would be within its rights as a separate state. The petitioner in this case received a fair trial. One of the questions earlier was whether a judge could explain various rights during a voir dire. That's exactly what happened in this particular case. The defendant's rights were explained to the jury. It was stated that he was presumed by the law to be innocent. The judge took great pains to explain and make sure that there was a fair trial during the voir dire. And, as I mentioned, there was an instruction that they could find the defendant guilty only from the evidence alone.
Speaker: What is your view on Lakeside v. Oregon? Do you think that case helps you or hurts you?
Robert V. Bullock: We think it helps us. The gist of it as far as we can see is that it may be wise for a trial judge not to give such a cautionary instruction over a defendant's objection and each state is, of course, free to forbid its trial judges from doing so as a matter of state law. If they can forbid them from giving the instruction over the objection of counsel, we feel that they should likewise be able to forbid the instruction, period.
Speaker: Well, but, does that follow? Because, isn't the Fifth Amendment privilege by its very nature something that is up to the defendant either to exercise his right not to testify or to testify? That's the whole theory of it, that the option is the defendant's.
Robert V. Bullock: Yes, but there must in that case be some compulsion. And in this case there was no compulsion. In conclusion, we would suggest that constitutional rights must be jealously guarded and the Constitution must be looked at in behalf of the defendant. But the public, likewise, must be safe and secure with the knowledge that the perpetrators of crime will be punished if they're guilty. Constitutional grounds for reversal should not be manufactured or decided on tenuous or speculative grounds. In this case it is our position there is neither a Fifth nor a Fourteenth Amendment violation of law. If there are no further questions, I will--
Warren E. Burger: Very well. Do you have anything further, Mr. McNally?
Kevin Michael McNally: Just a few points, if I may. I'd just like to address ourselves briefly to the question of harmless error since we didn't originally address that. First of all, it was not presented below, and after the discussion this morning, it's clear to me it's not jurisdictional but we think that there are good reasons why this Court would not want to reach that particular issue at this time. Since Kentucky is one of the few jurisdictions with jury sentencing, we feel that any harmless error analysis would have to include Kentucky's unique procedure and in that sense the policy is correct, that it would be better to let the Kentucky Supreme Court address that issue first. But secondly, if the Court were to address it, Bruno v. United States as I understand it is one of the leading federal cases on harmless error, and again, a unanimous Court rejected the contention that the refusal to protect the construction is harmless error in that case.
Speaker: That was under a specific federal statute though, wasn't it?
Kevin Michael McNally: Substantial rights, I believe, Mr. Justice Rehnquist, is the key phrase in the statute you refer to. And we submit that the Court's holding in Bruno that the substantial rights of the defendant were affected without any factual analysis in the opinion indicates that in this case it also affected the substantial rights; and further, that the Chapman and Harrington analysis is a stricter standard from our perspective than even the federal harmless error statute, and in that sense, since it's not harmless error in federal court, it couldn't possibly be harmless error once this court addresses, if it does, the question in federal constitutional terms. And finally, the evidence, we submit, is not overwhelming in a constitutional sense, and indeed, we admit that there are substantial incriminating circumstances under which the defendant was arrested. One other reason why a harmless error analysis wouldn't be practical in this situation is, is that the stronger the incriminating circumstances the stronger the desire of the jury is going to be to hear the defendant testify in the first place. And in that sense we submit that harmless error analysis would be inappropriate as to this question. Finally, I might address myself to the statement that the issue was somehow manufactured by trial counsel. We submit that, first of all, the Commonwealth conceded below, as I mentioned earlier, that the defendant did not testify because of his fear of impeachment. But even, as Mr. Justice Marshall pointed out, even if those facts weren't in this case, they are not necessary to this case, they are merely illustrative of the legal point that we were trying to make. Unless there are any questions, I believe I've made all the points that we feel are necessary.
Warren E. Burger: Very well, thank you, gentlemen. The case is submitted.