Earl Warren: Number 600, Robert Galloway White, Petitioner, versus Maryland. Mr. Weisgal.
Fred E. Weisgal: Mr. Chief Justice, may it please the Court. This is an appeal from a decision of the Maryland Court of Appeals affirming petitioner's conviction for murder by the Criminal Court of Baltimore City theft, death penalty was imposed. A certiorari was granted by this Court and it was limited to the point raised in Hamilton versus Alabama. The pertinent undisputed facts briefly are that on May 27, 1960 the petitioner was arrested and taken to the Central Police Station in Baltimore City. This is approximately 12:40 pm and at approximately 6:30 that evening he was booked, which means the charges were placed against him on the docket. He was brought before a magistrate on May 31, four days later, 3 pm and the state, which usually appears at all of these preliminary hearings, representing this day asked for a postponement at that time. Postponement was granted and the man was remanded to at that to the Baltimore City Jail where he remained until August 9 when he was again brought before the magistrate for a preliminary hearing. At this preliminary hearing, as is the practice in Maryland, even though the magistrate does not have jurisdiction to try this case, he is asked if he wants to plea guilty or not guilty and the man entered the plea of guilty. Now come, of course, to the important point that is before this Court. This man did not have an attorney representing him either at May 27 or at any time up until this hearing of August 19, still did not have an attorney rather and the magistrate after the preliminary hearing just referred to case sent it up ham as we say in Baltimore, to the grand jury. An indictment was brought out, and on September 9 be was brought to the criminal court, or September 8, he was brought to criminal court for arraignment. He still did not have an attorney and at that time a plea of not guilty was entered by him by the court. The court then appointed an attorney. He was re-arraigned on November 25, 1960, at which time through his counsel, he entered pleas of not guilty and not guilty by reason of insanity. The case came to trial on February 28, 1961. It was practically a year later, and during the course of the trial the following testimony took place on page 5 of our brief where the state asked the lieutenant, the arresting officer, Lieutenant Glover, were you present at the preliminary homicide hearing before magistrate Claudney on August 8, 1960 where White was charged with the -- this offence. I was. Sir, do you recall what plea, if any, that defended White gave upon his arraignment at that time? White gave a plea of guilty. Let me clarify one thing to this court at this time. The use of the arraignment by the State Attorney at that time means -- it does not mean that there was an arraignment as such. This was a preliminary hearing. He uses the word arraignment to mean that he appeared before magistrate and nothing else. Now this --
Arthur J. Goldberg: [Inaudible] were there any objections [Inaudible]
Fred E. Weisgal: During the course of the trial at criminal court, no sir, but I think that is answered quite clearly by the Court of Appeals that any objection even if it had been made wouldn't have made any difference, because the Maryland has recognized the rule that if you plead guilty before a magistrate they can introduce this plea in evidence against you. They can use this.
Arthur J. Goldberg: They may have [Inaudible] held back but your instance is that in this case it wasn't [Inaudible].
Fred E. Weisgal: Yes, I am insisting that but you held --
Arthur J. Goldberg: When is the --- When was there meaningful waiver of the right to the jury trail? Didn't it take place at the very first time he came before the magistrate?
Fred E. Weisgal: No, sir.
Byron R. White: Under the --
Fred E. Weisgal: Well, actually he had everything that happen to him happened before it took place at his appearance before the magistrate.
Byron R. White: Well, when was the jury trial waived?
Fred E. Weisgal: Well actually, that was waived by his attorney. The question of the jury trial has nothing to do with this one or the other, sir.
Byron R. White: Alright, you may think so.
Fred E. Weisgal: No, I am not trying to --
Byron R. White: I was just trying to find whether it does it or not?
Fred E. Weisgal: I am sorry, sir. I am saying that the --
Byron R. White: Well, this was the jury trial or not?
Fred E. Weisgal: No, sir. This is not a Jury Trial.
Byron R. White: When was it first waived?
Fred E. Weisgal: When was it first waived, at his arraignment; at his re-arraignment on November 25th.
Byron R. White: Well, when he was represented by counsel?
Fred E. Weisgal: When he was represented by counsel. Counsel at that time entered the plea of not guilty and not guilty by reason of insanity.
William O. Douglas: When was the preliminary hearing?
Fred E. Weisgal: The preliminary hearing was, one was on May 31 and then the – at which time it postponed who was asked for by the state. Then the actual preliminary hearing in question in this case, the one that the Maryland Court of Appeals ruled on was on August 9. Now through out this entire period he was not represented by counsel.
William O. Douglas: August the 9?
Fred E. Weisgal: August the 9.
William O. Douglas: And the arraignment was when though?
Fred E. Weisgal: November the -- the arraignment, the meaningful arraignment, it was November 25, 1960, but let me make this point clear. I'm sorry.
Byron R. White: [Inaudible] May 31, I take it he was brought before the magistrate.
Fred E. Weisgal: That's correct.
Byron R. White: And it says the accused when before me and on being informed on by me his right to trail by jury freely elected to try [Inaudible] and same thing occurs the next time in this matter –-
Fred E. Weisgal: That's correct sir. That's the typical form in now.
Byron R. White: Well, I know. Typical form or not, this is a time at which a meaningful waiver can be made, isn't it?
Fred E. Weisgal: No sir.
Byron R. White: Why is that?
Fred E. Weisgal: Because, you are talking about a waiver for a jury trial?
Byron R. White: Yeah.
Fred E. Weisgal: Because the preliminary hearing is just to determine in Maryland whether or not the state can make out a prime facie case against the –-
Byron R. White: What does the waiver of a jury trail relate hereto.
Fred E. Weisgal: There is -- the question of waiver of a jury trail was never discussed in any of these cases sir or any of the arguments.
Byron R. White: Then we shouldn't pay no attention whatsoever to the fact that he waived a trial by jury at his preliminary hearing.
Fred E. Weisgal: That's correct. Because that makes that you can't waive a trial by jury at the preliminary hearing. A preliminary hearing in Maryland is simply to determine one thing and one thing only whether or not this -- in a capital case.
William J. Brennan, Jr.: What is this, a printed form or something, what --
Fred E. Weisgal: Yes sir, this is --
William J. Brennan, Jr.: Why are those words in the form?
Potter Stewart: Might to create I suppose as power to try on –-
Fred E. Weisgal: Certain, certain types of cases --
Potter Stewart: That's the case --
Fred E. Weisgal: He has jurisdiction. Justice Brennan this was put in here to believe or not to try to make things simpler for this Court and there was a great deal of discussion. This was not before the Maryland Court of Appeals any of this record. We put this in here, Mr. Sweeny and I with the hope this show you the procedure in Maryland and I think we succeeded in not showing what the procedure is?
William J. Brennan, Jr.: Well perhaps you can take out. This is form which might be appropriate in some other kind of --
Fred E. Weisgal: Exactly –-
William J. Brennan, Jr.: -- where some other offence was involved but not where a capital --
Fred E. Weisgal: Not where a capital offence or where a burglary offence or any other things over which a magistrate does not have jurisdiction.
William J. Brennan, Jr.: Well then, then what you told Justice White right at the case we may forget it having any bearing on --
Fred E. Weisgal: Oh! Please, in fact do me a favor and ignore this because this is not the issue before this Court. The issue that is before this Court is that this man that a lieutenant who happens to be at this hearing testifies and testifies truthfully that this man when brought before the magistrate when asked for a plea, simply says I plead guilty and then he changed, when he is appointed an attorney by the state at his criminal hearing on the trial on the indictment and pleads not guilty and not guilty by a reason of insanity, the state introduces this plea into evidence. Now –-
Speaker: What do you say about the state courts holding that he failed to object to the introduction of the evidence? The question was [Inaudible] before it on adequate state ground --
Fred E. Weisgal: Well actually I have never believed in meaningless objection. The Court of Appeals has ruled, time and time again, that these pleas are admissible, but the Court of Appeals goes on to say if I'm not mistaken Justice Harlan that even if he had objected that it wouldn't have made any difference to them because the --
Speaker: They put it on the alternate ground and they say it wasn't the issue any more?
Fred E. Weisgal: That's right.
Speaker: That – there are two grounds on – state grounds we have to take the state ground --
Fred E. Weisgal: Now I say this that they have the right under their rules. The Maryland Court of Appeals has the right under their rules in certain instances where prejudice is shown, where a wrong is committed and the attorney let's say does not object, they then have the absolute right to consider the question. They just say well we are not going to consider --That's not the case – that they won't they don't have to consider the question, the opinion [Inaudible]
Earl Warren: We'll recess now. You may answer that after the recess.
Fred E. Weisgal: Thank you.
Earl Warren: Mr. Weisgal you may continue your argument.
Fred E. Weisgal: Judge Harlan, may I return to your question with respect to waver? The point that we are raising here is that had this man had counsel at his preliminary hearing this question -- you would never have been able to ask this question. I think, this is the crux of the entire matter, the fact that at a preliminary hearing this man was allowed to plea to a capital case without benefit of counsel. Now, you say that the Court of Appeals waived it. They just simply state that it wasn't properly before them and was not raised below or decided by the Trial Court, but they do go on to point out, without further content -- discussion that the contention is without merit. Certainly, this doesn't preclude this Court from considering the fact that prejudice that resulted from not being represented --
Speaker: [Inaudible]
Earl Warren: Mr. Weisgal, may I ask just what does your statue provide is to be done at this arraignment, where the defender was alone?
Fred E. Weisgal: The rule is quite clear sir. At arraignment, in a capital case or other serious charges our rules provide that a man -- the court should provide a counsel for him. Now I might say this that in all fairness to our courts, at least, in Baltimore City, the practice is now been for the last couple of years, at least, to provide counsel in almost every type of case where an indigent appears before them without counsel, but this raises the big problem. By the time they get their in certain cases -- by the time you get to the Criminal Court in Baltimore City any type of counsel that received at that time will do no good because you had lost so many rights. Let's just look at the facts in this case --
Earl Warren: Let's get to the fact. So let's find that's the statue --
Fred E. Weisgal: Well the statue –-
Earl Warren: -- requires to be done at the arraignment.
Fred E. Weisgal: At arraignment, the man, if he does not have an attorney must be provided counsel by the state in capital other serious charges that is the --
Earl Warren: Is that all its stands?
Fred E. Weisgal: That's all.
Earl Warren: What is -- didn't the Judge ask him here how he pled?
Fred E. Weisgal: No, sir. Judge in a Criminal Court in a capital case will not ask a man how he pleads if he doesn't have counsel.
Earl Warren: Or says him, here that he did plead – that he did plead guilty?
Fred E. Weisgal: I'd venture to say sir, that that plea was entered by the judge that he did not accept the plea and that it shows on the record that on September 9 counsel was appointed for him and he was re-arraigned at which time pleas were entered of Not Guilty and Not guilty by reason of insanity.
Earl Warren: Or did the judge or did he not, ask him of he was guilty or not guilty, I mean the commissioner?
Fred E. Weisgal: Oh! You mean the magistrate?
Earl Warren: The magistrate --
Fred E. Weisgal: Oh!
Earl Warren: Did he ask him or did he not ask him that he was guilty?
Fred E. Weisgal: Yeah. I am sorry, I was confusing your use of the arraignment with preliminary hearing. In Maryland we have a preliminary hearing. At the preliminary hearing --
Earl Warren: Now, isn't that called in arraignment?
Fred E. Weisgal: No sir, it was not. That's why I said the use of the arraignment by the State Attorney in this case was absolutely inappropriate.
Earl Warren: Now what is required at the preliminary hearing?
Fred E. Weisgal: At a preliminary hearing the practice is, the man is brought before the magistrate. The magistrate must say to you “do you wish to have your case tried before me, or you wish to have your tried up, or you wish me to send it to the Criminal Court of Baltimore City?
Earl Warren: Is it most in capital case?
Fred E. Weisgal: Yes sir. Yes sir, that's exactly what took place in this case. The man said I want to try it before you thinking that he can be tried before a magistrate, the magistrate then says “how do you plead” the man said and it's true he pled guilty, but the magistrate knowing that he did not have jurisdiction over this case just entered a plea of Not Guilty on the docket. He did not even enter this man's plea of guilty down there.
Earl Warren: Well, may I -- may I just pursue that one point Mr. Weisgal. Does the law kind of play that at a preliminary hearing in a capital case the magistrate shall ask him how he pleads, Guilty or Not Guilty?
Fred E. Weisgal: Yes sir. Yes sir, that's the law in Maryland.
Earl Warren: Yes. That's I wanted to know.
Tom C. Clark: When do they ask him that?
Fred E. Weisgal: At arraignment, sir, at arraignment.
Tom C. Clark: At arraignment --
Fred E. Weisgal: That's correct. Now a preliminary hearing is a magistrate's hearing, it's held in the, and we've got something like non-police stations involved in Baltimore City, all homicide cases are tried at Central Police Station. The State represents the state at -- the State is represented, rather at these preliminary hearings by the State's Attorney. If the man does not have counsel, they just go ahead and make out a prima-facie case if they can before the magistrate and then they continue.
Speaker: Now on that counter claim I would like pursue a question.
Fred E. Weisgal: Yes sir.
Speaker: At the preliminary hearing the man [Inaudible]
Fred E. Weisgal: Yes sir.
Speaker: And the state has to make out a prime facie case --
Fred E. Weisgal: Prime case, that's correct sir –-
Speaker: [Inaudible]
Fred E. Weisgal: That's correct.
Speaker: Now why don't you address yourself to that point?
Fred E. Weisgal: Well I have sir in my brief. I haven't been able to get to their point yet sir, but I'm saying that these are the wrongs that we are here complaining about is the fact that this man at a preliminary hearing, if he has an attorney, certainly can find out whether or not state can make out a prime facie case, can then for the first time that defendant at a preliminary hearing can find out who the state witnesses are? What the charges are against him, can at that point effectively begin to prepare his defense not wait as in this case five months before he is appointed an attorney.
Speaker: [Inaudible]
Fred E. Weisgal: Yes sir.
Speaker: [Inaudible] no counsel could not do anything --
Fred E. Weisgal: Could not do anything sir.
Speaker: [Inaudible]
Fred E. Weisgal: Exactly sir. That's the exact situation that prevailed and existed in Melon and –-
Earl Warren: And suppose you would add to what you have said also the fact that the judge asked him how pleaded, guilty or not guilty, when he was required to answer that question without the benefit of counsel.
Fred E. Weisgal: That's correct. Well, this Court has in fact and that's why I say that our Court of Appeals almost used reverse, a reverse diligent and if I may, in arriving at their decision in this case. They said that in this case that arraignment in Alabama is not like arraignment in Maryland. That's true, it's not, but arraignment in Alabama is somewhat alike to arraignment to preliminary hearing in Maryland. So they say since this was an arraignment and the man doesn't loose any rights at arraignment therefore we do not have to follow the rule in the Alabama case that whatever what happens there may possibly affect the rest of the trial so they consequently just ignored this entire issue. They ignored the thinking of this Court in Powell that we -- that this Court has stated time and time again when you plea to a criminal -- to a capital charge you must have counsel, you must have the guiding hand of counsel, Now the Attorney General comes along and tries to re-interpret the Court of Appeals thinking by saying well a preliminary hearing is not really a judicial hearing.
Arthur J. Goldberg: [Inaudible]
Fred E. Weisgal: Yes Sir.
Arthur J. Goldberg: [Inaudible]
Fred E. Weisgal: That's correct, yes sir.
Arthur J. Goldberg: [Inaudible]
Fred E. Weisgal: That's correct sir, yes sir.
Arthur J. Goldberg: [Inaudible]
Fred E. Weisgal: Yes sir.
Arthur J. Goldberg: [Inaudible]
Fred E. Weisgal: That's correct.
Arthur J. Goldberg: [Inaudible]
Fred E. Weisgal: Exactly.
Arthur J. Goldberg: [Inaudible]
Fred E. Weisgal: Yes sir.
Arthur J. Goldberg: [Inaudible]
Fred E. Weisgal: That's correct sir.
Arthur J. Goldberg: [Inaudible]
Fred E. Weisgal: Exactly.
Arthur J. Goldberg: [Inaudible]
Fred E. Weisgal: That's correct. It is conceivable that this case could be dismissed at the preliminary hearing. It is conceivable.
Arthur J. Goldberg: Now that [Inaudible]
Fred E. Weisgal: That's correct. I may even point out that this Court I think has practically agreed as to these propositions in the Crooker Case where you discussed the, the pre -- the importance of the Pre-trial proceedings and I would just briefly mention these things because I would like to say whatever time I have left for rebuttal. In the Crooker case which was decided prior before this Court stated that the Pre-trial proceedings are extremely important proceedings and you should -- and you should have counsel at that time. Also I would just recall to this Court the Mr. Beanie's article on the Right to Counsel, this is not in my brief I am sorry, put it by Minnesota Law Review 771 where Mr. Beanie and Mr. Orfield, incidentally Justice Douglas you wrote the introduction of this article, state that this -- the preliminary hearing, the Pre-trial what we call in Maryland, the Pre-trial proceedings are the most critical in the defense of an indigent or in defense of any man accused of a crime. I'd like to save the rest of my time for the rebuttal if I may.
Earl Warren: Very well.
Robert F. Sweeney: Mr. Chief Justice –-
Earl Warren: Mr. Sweeney?
Robert F. Sweeney: -- members of the Court. Let me say at the outset that the state of Maryland is fully cognizant of the fact that the rights of its most depraved citizen must be just as zealously guarded as those of the most honored member of our society. It is because of this feeling that the institution known as the preliminary hearing exists in the state of Maryland and the primary purpose of the preliminary hearing is for the benefit of the accused, as noted by the Maryland Court of Appeals who are perhaps best qualified to comment on the functions of that particular institution and it might clarify some of the questions raised here today. To quote briefly from a recent case of the Maryland Court of Appeals in which they discussed the preliminary hearing at page 6 of our brief, the case of Williams versus the State in which the court said that this hearing before the magistrate is for the purpose of determining whether there was probable ground to believe the accused guilty. The magistrate therefore can only commit the accused who are the -- for the -- for an appearance before the Grand Jury, subject to bail under certain circumstances or discharge him. The hearing is primarily for the benefit of the accused ensuring him against being committed for action by the Grand Jury on charges which are groundless and this next quotation I believe is of particular interest, “There is no reason, the court said, why the accused should be required to enter a plea at that time, where however, such a plea is voluntarily made by the accused, evidence of the plea is generally held to be admissible in the trial on the indictment.
Earl Warren: Was this voluntarily made here?
Robert F. Sweeney: Yes, Your Honor.
Earl Warren: You mean that he was asked to plead, how do you plead?
Robert F. Sweeney: Voluntary in the sense that -- that there was no coercion other than the question itself. The question was put to him. Voluntary in the sense that had he refused to enter to plea no further action would have been taken in those circumstances.
William J. Brennan, Jr.: Well the very fact that he didn't [Inaudible]
Robert F. Sweeney: Yes Your Honor but the --
William J. Brennan, Jr.: It is therefore [Inaudible]
Robert F. Sweeney: Well Your Honor in the question of counsel at preliminary hearing, it is our position as the court -- the Maryland Court held in this case and in other cases as the Federal Court, the lower Federal Courts have held that a plea entered at a preliminary hearing, be it either before the magistrate in Baltimore city or before a commissioner in the federal system is in the nature of an extra judicial confession and is therefore admissible at trial. Now if a man is entitled --
William J. Brennan, Jr.: Well, I know but that is the very fact [Inaudible]
Robert F. Sweeney: Well they certainly might be helpful to him, but so would --
William J. Brennan, Jr.: [Inaudible]
Robert F. Sweeney: In the same sense that if he had counsel with him in an interrogation-room, few confessions if any whatever.
William J. Brennan, Jr.: [Inaudible]
Robert F. Sweeney: [Attempt to Laughter]
Earl Warren: Could counsel cross examine these witnesses?
Robert F. Sweeney: Yes Your Honor counsel could have.
Earl Warren: Well let's assume that he did cross examine them and that he fairly discredited them in the eyes of the magistrate, would the magistrate would have held this man over or discharged him?
Robert F. Sweeney: If the cross examination brought out the fact that there was no basis for holding this man, the man would have been released.
Earl Warren: Well now isn't the man somewhat in need of counsel at a time like that?
Robert F. Sweeney: You Honor assuming that the purpose of this hearing is only to test the legality of the arrest of the detention at that point, we say that it has no bearing whatsoever on the later trial aside from the question of the introduction of plea into the evidence. Other than that it has no --what happens at the preliminary hearing has no significance as to the constitutionality of the trial or due process accorded at the trial.
Speaker: That's quite true because the state has to put on a prime facie case [Inaudible]
Robert F. Sweeney: Traditionally I think it's little, as few as possible.
Speaker: Well, I suppose [Inaudible] and in that kind of situation counsel [Inaudible]
Robert F. Sweeney: Now this is true theoretically Justice Harlan.
Speaker: I know that's theoretically, but we have to judge [Inaudible] in Hamilton against Alabama [Inaudible]
Robert F. Sweeney: Well the.
Speaker: Was Hamilton against Alabama decided before this case [Inaudible]
Robert F. Sweeney: This was 19th, I believe that it was, yes it was because,
Speaker: [Inaudible]
Robert F. Sweeney: They do in their brief, yes, in their opinion. The Maryland Court does refer to the case and it distinguishes there between the arraignment in Alabama and the arraignment in the State of Maryland which as the court now understands I believe is different, the arraignment in Maryland and the preliminary hearing in Maryland are two entirely different steps.
Potter Stewart: Were there any witnesses at this preliminary hearing of this man?
Robert F. Sweeney: The record does not disclose that they were, but I am certain that they were Mr. Justice Stewart.
Arthur J. Goldberg: General you may have answered this but does Maryland [Inaudible]
Potter Stewart: Yes and as a matter of fact our court has held regarding preliminary hearings, (a) that they may be waved by the defendant and (b) that the theory around the part of the state to hold a preliminary hearing or postponing it does not vitiate a later conviction because our court recognizes that this is a separate proceeding and not a part of a trial and this is the crux of our argument that whatever the circumstances here at the trial, whatever the unfortunate circumstances regarding accepting the plea of guilty, noting a plea of not guilty and then subsequently entering in to evidence at the trial the oral plea of guilty, that forgetting all of this that the question before the Court is this a denial a due process under the case of Hamilton versus Alabama and we say that it is not, Your Honors.
Hugo L. Black: May I ask you if your magistrate is required to write down notes of the witnesses he examined?
Robert F. Sweeney: No Your Honor. I have been a magistrate and the procedure in the magistrate's courts in Baltimore city, I might point out that we no longer have a magistrate system in Baltimore city, although it exist else where in the state, but at this time the time this man was tried the magistrate served in much the same function as does the commissioner in the Federal system.
Hugo L. Black: Who was he, was he a justice of the peace?
Robert F. Sweeney: Yes he was a justice of the peace, but he was not required to be an attorney although in Baltimore City from 18 Magistrates 17 were attorneys. He was not a full time judicial officer and he could in fact practice as an attorney before other courts in the state accepting only the magistrates in the city or county for which he was appointed. He did not have and this is something that the court must consider, he did not have sufficient authority to appoint counsel. He had no jurisdiction over members of the bar to call counsel to be appointed at a preliminary hearing, nor did he have funds available to him to compensate such counsel as he might volunteer in the event that this should be done.
Hugo L. Black: That of course wouldn't affect your constitutional point, would it?
Robert F. Sweeney: This would nut but it is a practical problem that I think that perhaps the State of Maryland might be faced with a problem that our court deals with in its opinion. Under our new system I might add where we have full time judges sitting as municipal court of Baltimore City who are required to be attorneys of at least five years of practice and who are judges in every sense of the word. We still do not have either the authority on the part of those judges nor the funds available to appoint counsel, a question that my brother and I are dealing with all the state judges next Monday night in an attempt to bring about some compliance with the Court's recent decision in the Gideon case.
Hugo L. Black: Does your Magistrate have power to grant bail?
Robert F. Sweeney: Yes he does, he has a power to set bail.
Hugo L. Black: The way you described it, I see very little -- I don't know about the names given to them, but I have tried a great many preliminary trials in Alabama both a s a magistrate and as a lawyer and I can't see any difference in the two.
Robert F. Sweeney: Between preliminary hearing and arraignment?
Hugo L. Black: Preliminary hearing and a preliminary hearing in Alabama?
Robert F. Sweeney: Yes but the question in Hamilton versus Alabama was not with preliminary hearing as I understand the preliminary hearing was with an arraignment at which time in Hamilton versus Alabama as the Court pointed out certain pleas must either be made or irrevocably waived. There is no such set of circumstances in Maryland not only at our preliminary hearing, but also no such circumstances at our arraignment because our rules and our law do not require, although they require that a plea be made at arraignment they do not require that it can only be made then nor do they say that if made at arraignment it cannot subsequently be changed and it can in fact be changed and there is no better example than the case at hand where at his original arraignment not preliminary hearing but arraignment. Mr. White entered a plea of not guilty, counsel was that day or the next day appointed for him.
Hugo L. Black: But he had already pleaded guilty on an arraignment?
Robert F. Sweeney: He had already pleaded guilty at a preliminary hearing.
Hugo L. Black: I mean at the preliminary hearing.
Robert F. Sweeney: Yes Your Honor.
Hugo L. Black: Now as a matter of fact I assume it's proved that, everybody that is able to get a lawyer for an arraignment gets it, doesn't he? I thought preliminary – if he is charged with murder or something like that.
Robert F. Sweeney: I would assume yes Your Honor.
Hugo L. Black: It's very wise to do it, it's very wise if possible to get the evidence written down, isn't it?
Robert F. Sweeney: Yes Your Honor.
Hugo L. Black: It's very wise for him to be able to tell his client whether to take his stand and say anything or not, isn't it?
Robert F. Sweeney: Well a defendant at a preliminary hearing cannot testify, he is not permitted to testify. He is permitted to cross examine his witnesses but it is not a trial and because it is not a trial no defense is put on other than such as.
Hugo L. Black: So they asked him if he was guilty.
Robert F. Sweeney: They asked him if he was guilty. Now as our court say there is not requirement that he be so asked, but I would be less than candid if I said that it was not the customary procedure or at least the more prevalent practice to ask a man as to how he pleads at a preliminary hearing.
Hugo L. Black: Well as a matter of fact you would recognize I am sure that in the language of Powell that every stage of proceeding which is important to the defendant that this step has to be there. It's exceedingly great to the defendant in great many instances where they charge the fellow, doesn't it?
Robert F. Sweeney: Yes Your Honor and so as the time during which interrogation is being held.
Hugo L. Black: That's correct this is before a magistrate?
Robert F. Sweeney: Yes Your Honor.
Hugo L. Black: And as Justice Brennan said the other can be [Inaudible]
Robert F. Sweeney: Well in my view if I may say so for this Court to say that under Hamilton versus Alabama we are required to appoint counsel on these circumstances, you are stretching the Hamilton doctrine beyond the trial itself, beyond the period between arrest and trial and all the way back until the – within hours of the arrest being made.
Hugo L. Black: Being stretched to the point, the first point was defendant is brought before a judge or a magistrate who is certainly a judicial officer not a lawyer and he is called on to plead guilty or not guilty is carrying it that far [Inaudible] any further at a place which is important to him as a defendant.
Robert F. Sweeney: It's carrying it further because you are establishing thereby the preliminary hearing as a part of the trial procedure.
Hugo L. Black: Not as part of -- actual part of it, but as the part of proceedings if the state takes to get him convicted. Eventually, hold him, get him to hold him, decide whether to hold him?
Robert F. Sweeney: Then in so saying, your honor, you are disagreeing with the opinion of my court that the primary purpose of this is for the benefit of the accused.
Hugo L. Black: No, it might be. I understand that from one standpoint the whole history of it is that there was solicitude; you see that people were not grudged often, put them in jail and shut up there without any chance [Inaudible] might not leave for six months say they got to have a hearing and they got to have a chance, but that does not take away from it the other important part, does it? It's an extremely great moment to the defender that he be advised properly on how to proceed in connection with the serious charges against him. You don't have to disagree with your court on that other point, I don't think. I agree with them. I think that's your basic foundation for the preliminary trial. See if he didn't get bail, see whether he could be held over; see the terms under which he should be held over. Does that answer the question as to whether that's a time at every stage it was the time from the time he is arrested until he is convicted finally that he has to be protected if a state gets him in a position where it's calling on him to the answer to his guilt or innocence?
Robert F. Sweeney: Well, this is not an answer, but the practice that we follow is the practice to my knowledge, to the best of my knowledge is now followed in the Federal System before the Commissioners. And the -- where even at the present time, it is my understanding since the Gideon case that counsel will not be appointed in the Federal System before a Commissioner, that perhaps raising their hopes on the note in Mr. Justice Harlan's concurring opinion wherein the Court perhaps exempted petty offenders from those -- for whom counsel must be appointed. But it is my understanding that in the Federal System, counsel will not be appointed in petty offenses under Federal Law if he is tried before a Commissioner, that the Commissioner will not have a right in those cases where he is conducting a preliminary hearing.
Hugo L. Black: But this was not a petty offense?
Robert F. Sweeney: No, your honor. But my point is that the Federal Commissioners do not now have the right to appoint counsel, and do not as a fact appoint counsel neither before nor after Gideon and that this is exactly comparable to the practice in Maryland. So although as I say this is not an answer, if the practice that we are following in the State of Maryland is a denial of due process, that's such -- that due process is equally being denied in the Federal System. And that in relying as we do on the prior decisions of the lower Federal Courts, perhaps then if the Court is going to hold that this is a denial of due process, it's going to be done not under Hamilton or under Powell, but it's going to be a new mandate of the Court. But my sole is that we have followed what we believe are the opinions of the Federal Courts. We have followed what we believe are the practices of the Federal Courts. If this is error and I do not submit nor believe that it is, if it is error, we will comply with whatever directions the Court gives in this instance.
Arthur J. Goldberg: [Inaudible]
Robert F. Sweeney: Yes, sir. First --
Arthur J. Goldberg: [Inaudible]
Robert F. Sweeney: I don't know how prevalent it is but it certainly exists in the Federal System, Mr. Justice Goldberg. I had a case which we cite in our brief of United States versus Adelman, where exactly the same set of circumstances as exists here happened in the Federal System.
Arthur J. Goldberg: [Inaudible]
Robert F. Sweeney: In the Adelman case, Adelman had pleaded guilty before the Commissioner without counsel. He subsequently changed his plea and his original plea was admitted in the evidence against him. Now to be candid with the Court, it's holding exactly to the contrary, is a case on the District Court of Appeals heavily relied on by my brother, a case of Woods where under a similar set of facts the District Court of appeals came to almost an exact opposite conclusion.
Earl Warren: District Court of Appeals of Maryland?
Robert F. Sweeney: No the District Court of Appeals for the District of Columbia. The United States Court of Appeals for the district of --
Earl Warren: The Court of Appeals for the District of Columbia.
Robert F. Sweeney: Yes Your Honor. That's in the case of Woods vs. United States which the man entered a plea of guilty at the preliminary hearing. He went to trial that plea was entered against him and the District – the United States Court of Appeals for the district held that it was improper to do so. They cite little authority for that proposition except I think the Kurchable which is easily distinguishable at least in my opinion from this case because in the Kurchable case we were concerned not -- this Court was concerned not with a plea made at preliminary hearing but a plea made a trial and subsequently change with permission of a trial court and then attempted to be or then used in evidence against him and this Court said in Kurchable that when the court permitted the man to change his plea it was an admission that his first plea had been erroneously entered and therefore it was unfair and --
Speaker: [Inaudible]
Robert F. Sweeney: No, no Mr. Justice Albert because first of all the essential difference is that no permission of any court is needed to change the play in Maryland from the preliminary hearing White pleaded guilty at preliminary hearing he pleaded not guilty at arraignment without having needing or getting or tempting to get the sanction of permission from any court, he subsequently change that plea again from a simple plea of not guilty at his first arraignment to a plea of not guilty and not guilty by reason of insanity at his second arraignment.
Speaker: [Inaudible]
Robert F. Sweeney: Yes but again, refolding again on the terms at his preliminary hearing he was asked how do you plea, he replied guilty. The Magistrate said I am going to enter a plea of not guilty. Alright now moving on to the first arraignment as suppose to preliminary hearing, White then pleaded not guilty, he then had a second arraignment at which he pleaded not guilty and not guilty by region of insanity.
Speaker: [Inaudible]
Robert F. Sweeney: I had an idea that the question might be asked. I cannot say that whether I approve of this being done of course has nothing to do with the case, but I think Mr. Justice Harlan, I would like to quote it for the court. In the New York case before this court where Mr. Justice Harlan and running the majority of opinion started out by saying we share the distaste of the lower court as to the – saying of circumstances here. But however distaste what we find them out question is our problem is to find hasn't been a constitutional denial of due process. Perhaps this might apply to the present case however unfortunate this set of circumstances might be we say that it does not amend to an unconstitutional denial of new process. We say that this is not a part of the trial that it does not – Hamilton vs. Alabama cannot apply here because or it has – it must be stretched to make it apply and that in if the court chooses to so stretch the case of Hamilton vs. Alabama it will greatly hamper the activities of law enforcement officials, it will take it back to within hours of the arrest itself at least in Maryland and that it will make it much more difficult to do interrogation, solve crimes which plague the community. I might also point out that despite the language in Hamilton versus Alabama that says where a man is permitted to enter a plea of guilty without counsel, in a capital case we do not stop to enquire as to what the prejudice exists. Now this is a very serious language when applied to circumstances such as these.
Byron R. White: [Inaudible]
Robert F. Sweeney: Now, as to that Mr. Justice White, I can say that the practice in many states --
Byron R. White: [Inaudible]
Robert F. Sweeney: Now the practice-- the prevalent practice in many states where the prevalent practice is that such evidence is admissible, again I refer it back to the lower-- to the federal criminal system where such a practice will be is -- where such a plea is admissible at the trial at least under the Adelman case, if not --
William J. Brennan, Jr.: [Inaudible]
Robert F. Sweeney: Yes Your Honor.
William J. Brennan, Jr.: [Inaudible]
Robert F. Sweeney: Yes Mr. Justice Brennan.
William J. Brennan, Jr.: [Inaudible]
Robert F. Sweeney: If that is your opinion, then I got it so.
Earl Warren: Why does the magistrate set that guilty plea aside?
Robert F. Sweeney: Because in the opinion of this one particular minor judicial official, the man should not be permitted to plead or should not be required or allowed to plead in the absence of counsel. However, I much I might agree with him, this is not the opinion -- this is not the law in the state of Maryland. It is not the opinion of the Court of Appeals of Maryland which is with the exception of this Court the final question in this in the lead in our state as to what is constitutional and what is not?
Byron R. White: [Inaudible]
Robert F. Sweeney: It means nothing, it means nothing. It's only as – as one of the justices has put the finger on it and magistrate will sit, I heard I think in one year some 6000 cases as a magistrate. And as a matter of form in every case where you have jurisdiction, you ask where you are actually going to conduct the trial, you ask the defendant if he wants to be tried before you as a magistrate or if he likes to jury trial which in they have? This practice of asking the questions is for some of the reason unknown to me carried over to preliminary hearing where obviously the magistrate has no authority to conduct a hearing.
Byron R. White: [Inaudible]
Robert F. Sweeney: Yes.
Byron R. White: [Inaudible]
Robert F. Sweeney: That is -- that is actually at the trial itself. As the trial commences the man elects either a jury trial or court trial at arraignment but as the trial itself commences the prac --
Byron R. White: [Inaudible]
Robert F. Sweeney: At arraignment, yes.
Byron R. White: Or the post trial proceedings in front of the jury?
Robert F. Sweeney: Yes but if -- but he can subsequently at the trial itself, elect a jury trail even if at arraignment he had prayed a court trial.
William J. Brennan, Jr.: [Inaudible]
Robert F. Sweeney: Yes for some real papers have been written and books perhaps could be written about the few cases in Maryland, criminal cases of any kind wherein a jury prayed I think --
William J. Brennan, Jr.: [Inaudible]
Robert F. Sweeney: Yes it is, I think that jury has perhaps has prayed in less than one case out of ten.
William J. Brennan, Jr.: [Inaudible]
Robert F. Sweeney: In many case, in many instances yes.
William J. Brennan, Jr.: Maybe three or –-
Robert F. Sweeney: It maybe three yes.
Byron R. White: [Inaudible]
Robert F. Sweeney: No, customarily no. It can be -- it can be made if the defendant wishes to have such a plea made -- such a transcript made but the state makes no provision for a transcript.
Arthur J. Goldberg: General [Inaudible]
Robert F. Sweeney: Oh no, we do not.
Arthur J. Goldberg: [Inaudible]
Robert F. Sweeney: It's admissible because the man at this time, at this date and in this place, where the preliminary hearing was held, in response to the question of are you guilty or not said I am guilty, regardless of what the docket entry shows.
Arthur J. Goldberg: [Inaudible]
Robert F. Sweeney: Yes.
Arthur J. Goldberg: [Inaudible]
Robert F. Sweeney: Then it would have some bearing as to the voluntary nature of it, but the fact would still stand that the man did say that he was guilty, in his own mind he was guilty, so evidence of a conscious, a guilty conscious mind.
Earl Warren: So it's really maybe the defended call a witness in his only at the preliminary examination, he may not.
Robert F. Sweeney: Our understanding is that he cannot mount any defense of any kind at preliminary hearing.
Byron R. White: [Inaudible]
Robert F. Sweeney: Yes it -- I am glad that you asked the question because the confessions on the question of prejudice and the court not stopping to see if prejudice exists, here the confessions which our court after exhaustive testimony found to be voluntary were given completely prior to the first of these preliminary hearings and these confessions that were admitted into the evidence at the trial.
Byron R. White: [Inaudible]
Robert F. Sweeney: Except at trial.
Speaker: General if this case is [Inaudible]
Robert F. Sweeney: As to waiver? We believe that they by not objecting that this man was represented at his trial by three competent, experienced trial counsel for the Baltimore Bar and that even under the Noia case of reason weeks, that there still exists at law a knowing, conscious, intelligent --
Speaker: [Inaudible]
Robert F. Sweeney: Well we believe that he did. There was a knowing, conscious, intelligent waiver and that having waved and one of the reasons that they might very well have waived is that one of their pleas was not guilty by Reason of insanity.
Speaker: The Maryland State found that whether or not it was waived it turns out the question of whether or not your Court of Appeals said that there being no object question is not before it [Inaudible]
Robert F. Sweeney: Having which -- having been waived below.
Speaker: Having not [Inaudible]
Robert F. Sweeney: Yes and it is our feeling that this is, as we cite in our brief, that this is determined by the question here. That not having objected at the time, that he is without standing later to no object.
Arthur J. Goldberg: [Inaudible]
William J. Brennan, Jr.: [Inaudible]
Robert F. Sweeney: Mrs. Mapp objected, if I may go back to Mapp versus Ohio, her Attorney must have known that the State Court would deny his objection, but he objected and he persisted in his objections to this Court where he smuggled the question in so I recall the language of the case.
Speaker: [Inaudible]
Robert F. Sweeney: I thought that you would, Mr. Justice Harlan.
Arthur J. Goldberg: [Inaudible]
Robert F. Sweeney: No, Mr. Justice.
Arthur J. Goldberg: [Inaudible]
Robert F. Sweeney: Oh, Clayton, yes, yes. Thank you.
Earl Warren: Mr. Weisgal?
Robert F. Sweeney: May I just direct my remarks first to Mr. Justice White. I'm sorry I was so dense I didn't understand your question. I don't think and I am not calling Mr. Sweeney dense He didn't understand it either. You are reading the language here saying the accused when brought before me and on being informed by me of his right to a trail by jury, actually how this is used so let us assume we have an assault case before a magistrate and the magistrate has the right try this case, he has concurrent jurisdiction of the criminal court. If the lawyer doesn't like this magistrate and he doesn't want to try the case in front of him, he asks for a jury trial and at that time the magistrate cannot try the case, he must send it uptown the criminal court and that is what the practical purpose of that rule is sir.
Byron R. White: [Inaudible]
Robert F. Sweeney: No sir, no. Not does he have to take the jury trial when it goes uptown. It is actually used to say I don't want to try this case in front of you Mr. Magistrate and that's -- and so just send it uptown and that's --
Byron R. White: [Inaudible]
Robert F. Sweeney: It seemed that way yes sir.
Byron R. White: And [Inaudible]
Robert F. Sweeney: Also sir if you have your attorney at a preliminary hearing, if you have an attorney you would ask for a transcript and the state in most homicide cases does take down the testimony of prosecuting witnesses inn these hearings. Now Justice Goldberg, just a remark to you sir, a beautiful decision was written by Justice Rutledge in the Woods case where he discusses the Adelman case case and every other case and why he discounts the thinking in the Adelman case and completely reviews the idea of allowing a guilty plea by an unrepresented man could be allowed into evidence and this thinking has been followed in quite a number of jurisdictions and my last point is I would like to say to this Court I don't consider this a, if you rule, overrule our Court of Appeals, a stretching of the Hamilton case. The Hamilton case is just an extension in my opinion of the Powell case, the keywords to me are what happens there may have the affect the whole trial. Our Court of Appeals went upon the words arraignment and they didn't have to? What this Court as far as I'm concerned stated in the Hamilton case was at any time, reiterating Powell, anytime where prejudice, where something will happen to a to an unrepresented indigent or any defendant. Anytime in any proceeding, he would be affected, he must then have counsel. I think this Courts says no more, no less.
Potter Stewart: Mr. Weisgal, to me at least there are two separate questions which you have seem to consider as one. One is whether or not this the constitutional requirement this man to be – have the assistance of counsel at his preliminary hearing, that's one question. The second question is whether the Constitution requires Maryland to exclude his plea of guilty at the preliminary hearing? Are those two separate questions?
Fred E. Weisgal: Yes sir, but we are only -- you only limited in the cert to this one question, the right the counsel and my argument is if he had counsel he never would have --
Potter Stewart: But what if he had? Well that's your argument but what if he had had counsel and he pleaded guilty at the preliminary hearing?
Fred E. Weisgal: Well it be that had counsel pleaded guilty at the preliminary hearing, I might be here I don't know but I might be here on the question of competency of counsel because there is no reason to enter a plea at a preliminary hearing, none whatsoever.
Potter Stewart: Right from the beginning his counsel is going to plead in not guilty by reason of insanity and so then -- so you -- this defense starts right at the preliminary hearing.
Fred E. Weisgal: Yes sir --
Potter Stewart: [Inaudible] This is the beginning of his evidence that the man is insane.
Fred E. Weisgal: If he had – if he had the competent counsel at a preliminary hearing, the counsel will just stand up there, the judge will say do you plead guilty or not guilty, the counsel will say well we don't have to enter any plea, but for the purposes of this hearing we will enter -- he cannot refuse or enter a plea of not guilty. He would never plead guilty unless he was completely incompetent. And see this is what's wrong with the Maryland law, it imposes upon the defendant the duty to know that he doesn't have the answer to magistrate. It imposes upon him -- that's why I have to laugh when they say it's for the benefit of the accused. Historically a preliminary hearing is for the benefit of the accused, but look what happened to the accused in this case. He is held for four days without a preliminary hearing. Then when brought before the court for the preliminary hearing, they say the state asks for the extension of time so they hold him in the jail for another two months, then they have the preliminary hearing, he pleads guilty. He is held in jail for another month. Meanwhile if he had any witnesses, if he had any one that could have possibly have helped him, they could have died, they could disappeared, every -- all of these ingredients necessary to a proper defense are just going out the window at this time. That's why I am saying that this is not an excuse -- this is not stretching Hamilton. This is the natural, logical extension of the, of the Hamilton case, that we must appoint counsel.
Potter Stewart: Did we limit the grant of certiorari?
Fred E. Weisgal: Sir?
Potter Stewart: Did we limit --
Fred E. Weisgal: Yes, you limited I think to --
Potter Stewart: The right to counsel at the preliminary hearing.
Fred E. Weisgal: yes sir.
Speaker: I suppose what you are saying is that if state would not have speedy trial then the --
Fred E. Weisgal: I would be here under Hamilton, but I would be here to say, I would be here in the same manner. I would not the faced with the exact -- I would not be faced with the question of the guilty plea.
Potter Stewart: Well, what would you be arguing to us?
Fred E. Weisgal: The same thing I have been trying to argue today sir.
Potter Stewart: Well, now you have relied very heavily on the subsequent years of the guilty plea in that –-
Fred E. Weisgal: I just said this is one of the most preponderance pieces of prejudice that seem to happen in a -- in a case, but I would still say that the right to --- the fact that that this man remained in jail for five months without the right to speak to anyone, to have some one to help him in and off itself is a deprivation of due process.
Byron R. White: [Inaudible] holding.
Fred E. Weisgal: It means jury didn't get this case Mr. Justice White until some time in September. This man was arrested on May 27. This man would have been better off if he had known to waive the preliminary hearing, at least then the case would have been sent to the Grand Jury, the Grand Jury would have acted on the case and then may be he would have been brought to criminal court for arraignment. This shows the weakness of not giving an indigent descendent counsel at a preliminary hearing or providing an indigent with counsel at --
Byron R. White: [Inaudible]
Fred E. Weisgal: No sir.
Byron R. White: Why?
Fred E. Weisgal: Well, because he would have had an attorney --
Byron R. White: I know but [Inaudible]
Fred E. Weisgal: No. I withdraw that. I say but at least let's assume that I have been appointed. I would have --
Byron R. White: [Inaudible]
Fred E. Weisgal: No, but let's assume that it would, I would have been--
Byron R. White: [Inaudible]
Fred E. Weisgal: You get to trail phase but –-
Byron R. White: [Inaudible]
Fred E. Weisgal: Well, you get up to the Grand Jury. The lawyer can see to it that the case gets up there.
Byron R. White: [Inaudible]
Fred E. Weisgal: I will answer it this way. At least I would have been preparing the case. I would have been doing some work for the man. I would have been trying to interview witnesses. I would like to -- I would have known what the state's case was against this man. I would have been effectively I hope prepare his defense.
Byron R. White: [Inaudible]
Fred E. Weisgal: He is not waiting for the Grand Jury. He was waiting for some one to help him. They just didn't – I am saying that no man if the – no indigent were -- I am sorry, no defendant would have remained in jail for that period of time without at least something done for him if he were represented by an attorney, it's inconceivable. Of course we have this. This happens a great deal in Maryland, I am sorry to say.
Tom C. Clark: [Inaudible]
Fred E. Weisgal: Exactly I just did that sir. We would have gone right uptown and it would have –-
Tom C. Clark: He had about six weeks --
Fred E. Weisgal: He had much longer, he really did and one other thing; this man did not plead not guilty at his first arraignment. The court and I found this out from counsel entered the plea of not guilty until he appointed a counsel for him. Thank you very much.
Earl Warren: Mr. Weisgal before you sit down I would like to express the thanks of the Court to you for having represented this indigent defendant. I understand you were appointed by the court below to represent him and we are always comforted to know that lawyers are willing to give their time and energy to indigent defendants in the cause of justice. So we thank you for it and Mr. Sweeney we thank you for you fair diligent manner in which you represented the interests of your state.
Robert F. Sweeney: Thank you very much.
Fred E. Weisgal: Thank Your Honor.