Earl Warren: Number 44, William Skinner et al., petitioner versus Louisiana. Mr. Leppert.
George M. Leppert: Mr. Chief Justice, Your Honors and Associate Justices. I represent the three petitioners in this case, who were convicted in a marijuana prosecution at which petitioner Skinner received 10 years, Gueldner 16 years, and Chauvenet, the Negro defendant received 50 years. Although we're relying upon strictly legal issues here, it is necessary to present to you some of the highlights in the facts. Mr. Skinner who received 10 years was never shown to have been a user or an addict or a vendor or pusher of narcotics in any way. He engaged in a -- he was successfully engaged in two second-hand automobile places in New Orleans. And it was admitted by the narcotics agents that they undertook initially to make a case against one of his employees, they were not after Skinner at all, and failing in that apparently, it made a case against him along with Gueldner, his salesman and Chauvenet who was alleged to be the pusher. Now, the indictment, the information charged a single transaction. There were two counts. On May 21, 1965, a sale of about $10.00 with marijuana cigarettes in possession of the same cigarettes. The manner in which Skinner became involved in this is set forth clearly in the preliminary hearing and in the trial on the merits, all of which is referred to in our brief. It amounted to a plea of entrapment but we're not urging that because that's factual issue but it is necessary to understand what happened. The undercover agent Fullington had gotten as a cover job, a position of a financing manager of a company which had the yes or no on loans used by Mr. Skinner in his business. He ingratiates himself with Mr. Skinner. He went out to the race track with him. He let him put up money for the bets. He let him make dates with him with women and then finally when he gotten that far into his confidence, he informed him that he wanted to get some marijuana for a friend of his. And it was set up according to the state's testimony for it to be delivered on the night of May the 21st at which time the allegedly took place on the lot on Skinner's lot. Then under Louisiana system evidence which is very broad, the state was allowed to bring in quite another transaction on May 28 involving another portion $13.00 worth of marijuana which allegedly took place on the same lot through a meeting with Chauvenet set up in the same way.
Earl Warren: Between the same parties?
George M. Leppert: Yes sir. Now, under the Louisiana system of evidence which I say is the broadest in the country, they were also permitted to bring in another transaction which neither Skinner nor Gueldner had in connection with and which the agent said that after he got the second marijuana, he told Chauvenet he wanted to get some heroin and he says that Chauvenet on that same day went somewhere else in other part of the city and got some heroin. So there was -- on that original deal that was engrafted, these other two transaction. One of which two defendants the same, were the same and one of which that had no connection well except the fact that it started on the automobile lot. Now, we won this case originally by vote of five to two in the State Supreme Court on the theory that the Court had erroneously given a full blown conspiracy charge whereas none was involved. There was a separate conspiracy case turning and we contended that the lower Court, the trial Court had become confused and went further than saying that admission of evidence of one conspirator statements could be used against the other. But he gave a full blown partnership theory of conspiracy. We won it five to two and on a rehearing, they reversed themselves and ruled six to one against us and then denied all the other bills. I'm not pressing that point now because I believe that that procedure was wrong. I have not abandoned it in any way. I believe that the two errors are more of greater national interest. And we come therefore to the main point, two points which we urge here. The defendant Chauvenet, this indigent Negro, 33 years old was arrested and he had a series of court-appointed counsel. He had three counsels appointed before my associate, Mr. Link finally got into the case. He stayed in jail a nearly a year. He had a bail bond of $50,000.00 and nobody did anything for him. Now, it is misleading to state as the state does that none of these three counsels did anything because of illness. The only thing about illness of previous counsel is that passing reference in a motion which indicates that at some time, one of them was ill but there's no evidence about any continued illness. There's certainly no suggestion that all three of them were ill for a year. Nobody did anything for him. Finally, after the case, after the -- while he was still in jail, and while he had no notice of anything that was going on, as far as there were, not even notice of any hearing, there were extensive hearings filed on behalf of our clients, that is Mr. Gill, for whom I have loss because he tried the case for Chauvenet and Gueldner. And Mr. Link finally tried it for Chauvenet. I mean, we represent Skinner and Gueldner and he represent Chauvenet. Excuse me. There was a motion for preliminary examination, a motion to quash, a motion to suppress and motion on bill of particulars. As we note in our brief, there was some 40 odd pages of testimony taken on which went right to the vitals of the case. Now, under the Louisiana system, as to these preliminary hearings, the preliminary hearing says, the premise of preserving evidence and under Article 265, this evidence could have been used later. The fact that it was -- was not as of the moment. It was a part of the case. And moreover, as the Court noted, these preliminary hearings were taken in connection with the pending motion for bill of particulars, so it was exploratory in nature. But Chauvenet had nobody there. He languished in jail while all this went on, and then finally, when Mr. Link got into the case, got his bond reduced to $5,000.00 and got him out jail shortly before trial. He was faced with this situation. He got a copy of the transcript of all his other motions and he knew what it happened. And in that motion, there was a part that the state had a made an error as to the vendee on one of these transactions. They were later to amend it virtually on the eve of the trial. They said it was sold to a different agent, Fullington instead of Abe. But he actually didn't want to disturb that and he could not have gotten a preliminary hearing as a matter of right because under our Louisiana system, under Article 295 -- 292, the Court of criminal procedure, the right to a preliminary hearing is granted right only before the information or the indictment and he could -- and it will be highly status urged that he waived the right. It's obvious that after having heard all of that testimony and after the trial Court said that he had no interest in those motions anyway because he didn't file them, the chances of either one out of a thousand, they would have granted him. So Mr. Link did not file the motion and he relied on the error which was in there, which was cured by an amendment. Now, the state urges that even if we were -- even if there were errors to as to Chauvenet that we have no standing that challenged it that Skinner and Gueldner were not prejudiced. It is our position because those motions would have been a real hearing if this man had been there. The record shows that the state officers were interviewing this man in jail, trying to get a statement out of him, obviously trying to get him into state's evidence. We were not representing him. We couldn't talk to him. For all we knew, he might be state's evidence. And the most significant thing is that when they came to the trial, this is where they're prejudiced hits us right between the eyes. For the first time, they come in with this completely unrelated heroin transaction in which Chauvenet alone was involved with the agent Fullington. So we contend that that alone was clearly prejudicial and moreover, if this was a part of the trial, if this preliminary hearing which preserves evidence for the trial, which affects three co-defendants was a part of the trial. We were entitled to have him there. We might have found out something about it because the Court said that he was going to consider all that evidence in connection with the bill of particulars so it was exploratory. So I now pass to the next point. I would like to save myself 10 minutes for rebuttal if I may. The problem of the all night session and the sleeping jurors. This case started at 10:30 in the morning. My associate Mr. Gill is a man 68 years old, suffering from diabetes and other complications which were testified too by his doctors and he's able as the record show to try a normal day but at 11:40, he begged the court to recess, 11:40 that night. He had been going all day, hammer and tongs. He asked him, he said, “I'm sick, you know I'm sick.” And I'm quoting it all in the brief. “Please give us a recess.” They gave him a three-minute recess which he extended, generously extended for 35 minutes and then made them go nearly three o'clock in the morning. Three o'clock, they recessed, came back at 9:30 and argued the case.
Byron R. White: The evidence was concluded that night?
George M. Leppert: Yes sir. They had a -- I think he was technically arrested the night but there was no more testimony that night. Yes. The only thing that went far the next morning was the argument in drugs.
Byron R. White: But was the defense still free to go forward at more evidence the next morning if they had one or two.
George M. Leppert: That's my interpretation. Yes sir. Then it was brought out to the jurors who were sleeping. There was considerable testimony, pro and con on that accorded the principal sources of it that covers many pages. The most significant thing is though that there were two very strong witnesses. The court's own trial of Mr. Marchi's in the face of the court's aggressive attitude of hostility toward decided that anybody was sleeping in his courtroom. He took the stand and he said, he sure look like he was sleeping. And then there was the one little sentence I'd like to read it from one of the witnesses, one of the other witnesses who was respondent of the District Attorney's very aggressive cross-examination. He was trying to get him to say, you got to say whether he was sleeping or not and the answer was this, answer: “When somebody's eyes are closed and his head is hanging down and he has to be woke up, I will draw the conclusion he's sleeping. If somebody had to wake me up, I'd be sleeping.” To which the prosecutor counted. That is subjective, that's you. There's no opinion there. Answer: “If he wasn't sleeping, why would he have to be woke up.” And I submit him out of subject to rebuttal with him.
Hugo L. Black: Is there any finding of fact on that?
George M. Leppert: Sir, the finding of fact by the Supreme Court. Well, first of all, the District Court finds that nobody was asleep. The Supreme Court --
Hugo L. Black: The Court found there was nobody asleep.
George M. Leppert: There was nobody definitely asleep. Of course, we contend, you don't have to find that they're asleep if the -- you require something more than 12 warm bodies and we certainly didn't have that now. Oh! One other thing before I close, they want to apply it to prejudicial effect.
Hugo L. Black: But you're claiming prejudice --
George M. Leppert: Yes, sir.
Hugo L. Black: Between sleeping is the question.
George M. Leppert: Yes sir.
Hugo L. Black: That's an important question to us.
George M. Leppert: Yes sir. I mean -- well, I'm glad you brought that up Your Honor, I want to bring in additional point of the prejudice if I may. Mr. Gill after the trial put on his arguments to the extensive medical problem and how he had to be put in a hospital later and thought this was a result to this. And the question arose is to how we were prejudiced and the Supreme Court, the State Supreme Court took the position that he could have been prejudiced very much because Mr. Gill kept on talking, kept on making objections and apparently on the face of the record he was -- he might have been tired but there was no prejudice. But there is strong in title evidence in the record that there was gross prejudice for two reasons. Number one, as noted in the motion for rehearing the State Supreme Court, he forgot in his exhaustion, in his diabetic condition, he forgot to put on a principal witness to prove that the automobile where the marijuana is supposed to have been stashed didn't belong to the defendant Skinner. He forgot it.
Potter Stewart: What possible difference could that have made?
George M. Leppert: Sir?
Potter Stewart: What possible difference could that have made on the issue of the -- of guilt of the defendants, that is the ownership of the automobile?
George M. Leppert: It could have because it was a divided jury, 11 to 1 jury.
Potter Stewart: Now, what possible relevance could the ownership of the automobile have had upon the guilt or innocence of the defendants?
George M. Leppert: It could have a lot.
Potter Stewart: What? How?
George M. Leppert: Because it would remind them of the question of whether he got anything to do with it. He never took the stand.
Potter Stewart: Well, this was a lot. There were a lot of automobiles and marijuana was hidden in the -- under the seat on one of the automobiles. And what possible difference does it make to whom the automobile belonged?
George M. Leppert: I think it does but I submit to my argument because it was circumstantial evidence to compile it and there was a short conflict in another bill as to whether the thing happened at all on the day. There was a factual issue.
Byron R. White: Do you say that Mr. Gill was still disadvantaged the next day?
George M. Leppert: Yes sir and I say --
Byron R. White: That his behavior the next day was not up to par?
George M. Leppert: Yes sir and I want to add this one point Mr. Justice.
Byron R. White: Because he could have put this witness on the next day.
George M. Leppert: Well, that's the day he forgot to do it. He closed without doing anything. The next morning, I think they had a right to do it and he didn't put him on. Now, there's other evidence in that and he is a veteran lawyer, 40 years political experience, strictly criminal law. Who gets up and this is in the record. In his argument, he starts talking about another type of drug which was involved in another case an anti-amphetamine, one of these many drug things and he said, “Well, that's the same thing my doctor gives me, I took one of them this morning.” He was wondering and the state objected. I think its clear cut evidence that the man was not up the Par. And it's exactly what his doctor said that after going 12 hours, a man at that age in that condition had inefficiency, he was practically new. I submit now.
Earl Warren: Mrs. Korns.
Louise Korns: Yes ,sir. Mr. Chief Justice and members of the Court. Before beginning the argument, I'd like to inquire if the Court -- is the Court interested in this third point on which it grants certiorari, the conspiracy charge to the jury or is this Court interested only in the two points which petitioners have briefed? When this Court granted certiorari, three points were presented to this Court as allegations are there in the Court below. One of them was that the trial judge charged the jury in this case on the law of conspiracy although conspiracy was not formerly charged in the bill of information. Now, although petitioners urged this strongly in their application for certiorari in their brief in this Court, they don't brief this point. They say they don't think this Court is interested in it. Now, we briefed it very strongly, however, if this Court is not interested in it, naturally, Louisiana will not argue it.
Abe Fortas: Well, I think you better state your case in --
Louise Korns: Very well, Your Honors. I'll answer three of the points then. As far as the facts of the case go, I'll just briefly recapitulate what Mr. Leppert said that this charge grows out of a May 21st sale of heroin on Skinner's motor lot, motor mart to state undercover agent Ben Fullington. The test -- undercover agent Fullington testified that he went to Skinner's motor mart that day, met Skinner and Gueldner, told him that he was interested in getting some marijuana that either Skinner or Gueldner place to telephone call, told the undercover agent he could have the marijuana later that day. Fullington testified that he return to the motor mart around 8 that evening was introduced by either Skinner or Gueldner to Chauvenet. The third accused in this case, that Chauvenet told the agent the stuff as they call the marijuana is in that white Lincoln parked on the lot. That Fullington went and got a matchbox of marijuana out of the Lincoln and paid Chauvenet $20.00. Now, a week later on the 28th of May, undercover agent Russell Abe who was working in close collaboration with Ben Fullington on this case, the testimony shows that on this week later that Gueldner phoned Russell Abe and told him that the connection that he'd spoken to him about was that the lot and that would sell him marijuana that Russell Abe went to the lot and was introduced to Chauvenet on this date a week later. Chauvenet took him into an office, sold him nine marijuana cigarettes. Gueldner also testified that he had told Gueldner -- I mean Russell Abe also testified that he told Gueldner a day or so beforew this meeting, that he was interested in contacts that would sell the heroin or marijuana. On this second date, May 28, after Chauvenet had sold Abe the nine marijuana cigarettes in the office at the motor lot, he said, “How about some heroin?” And Chauvenet said, “I'll get you some, let's get in my car.” They went in Chauvenet's car to a spot away from the motor mart. There, Chauvenet obtained some heroin which he sold to Gueldner then on Chauvenet's instructions, Gueldner drove Chauvenet back to Skinner's lot. On this date, Skinner and Gueldner were at the lot. Gueldner had spoken to them about getting heroin and after the sale of heroin, Chauvenet was taken at Chauvenet's direction back to Skinner's lot. Now, Louisiana will first discuss the absence of Chauvenet from the preliminary motions filed at the hearing of the preliminary motions filed by the other two accused. These three men were arrested on July 30th. Skinner and Gueldner employed Mr. Gill to represent. Chauvenet appeared with the other two for arraignment, had no lawyer. The Court entered a plea of not guilty for him, told him to return in a few days to determine counsel. The September -- the Betsy storm came in there somewhere, anyway, because the Court proceedings were delayed but anyway the Court appointed the first lawyer to represent Chauvenet sometime around at the end of September. Unlike the allegation, contrary to the contention made by my opponents, a year did not elapse between the arrest of Chauvenet and his retention of Mr. Link here, six months elapsed. Chauvenet was arrested around the first of August, that is on the 30th of July. He retained Mr. Link on the 18th of January of the following year. During that six months period, the Court appointed three lawyers for Mr. Chauvenet. None of them did anything for him. However, Mr. Link concedes in his motion that he filed later which I will refer later that it was because of illness. In fact, one of them died, Mr. Bentley Burns who was a prominent lawyer. I don't know Mr. Joseph Mooney myself, the first lawyer appointed but I do know that Mr. Bentley Burns and Mr. Morris Burke are competent lawyers that -- who take care of their clients there. The allegation is that they were sick. There's nothing in the record to show they were not sick.
Thurgood Marshall: Mrs. Korns, is there anything in the record to show that Chauvenet waived his right to be at these hearings?
Louise Korns: No, sir. There's nothing Your Honor that our only position is --
Louise Korns: The only position is that the judge says, you come back and then committed it to jail.
Louise Korns: Our position is this Mr. Justice that Chauvenet had a lawyer all this time. Because of illness these lawyers could not -- did not file pleadings on his behalf nor did Skinner and Gueldner notify Chauvenet or his lawyers that they had filed these motions. Now, right off Louisiana will concede that it would have been better if Chauvenet had been in present at those pre-trial hearings of Skinner and Gueldner. There's no doubt about it. Our position is if this Court should give Chauvenet a new trial because of this -- his absence from these motions, he would be on no better position than the trial judge placed him in at this trial for this reason. These hearings were held on behalf of Skinner and Gueldner. Before the trial, 60 days before the trial, Chauvenet engaged Mr. Link to represent him. On -- Mr. Link went into Court at this time and filed a motion set out on page 11 of Louisiana's brief. A written motion in which Mr. Link said pointed out to the Court that because of illness, the three lawyers whom the Court had appointed to represent Chauvenet had been unable to do anything for him. Therefore this motion reads, a permission is asked to this Honorable Court to permit Chauvenet's attorney Mr. Link to determine whether it's necessary to file supplemental motions on Chauvenet's behalf. And that a minimum of 30 days delay be granted in order for defense counsel to properly study and evaluate the record already taken in these matters in order to file such pleadings as may be necessary in behalf of your defendant and he asked the Court to enable him to do justice to Chauvenet to furnish him with the transcript of all the pleadings and testimony which had been taken in the case. At very day, the trial judge ordered the Court reporter to furnish Mr. Link with the whole, the entire transcript of the proceedings that had gone before. He ordered the Court that the trial delayed for at least 30 days to permit Mr. Link to file similar pleadings on behalf of Chauvenet. In fact, the trial was delayed 60 days because a continuance is what we're asked for after that. So Mr. Link had all the transcript of the testimony, all of the motions. He filed not one single thing on behalf of Chauvenet. As a matter of fact, he did two things which show clearly that he didn't think his client had been prejudiced by what went before three things. And that he sort of adopted the proceedings as they were on the basis that Chauvenet's rights had been fully protected. These are the things he did. On the first day of trial, Mr. Link moved, the record all show this, as the trial was about to proceed, Mr. Link asked the Court that all motions previously filed and all bills of exception reserved be allowed to include his client Chauvenet. The Court ordered that it should be. Anyway, under Louisiana law, joint defendants, when one reserves the bill, they automatically go. He asked that all his motions be attributed to Chauvenet. The Court ordered it done. Moreover, as Your Honors will see in the written bills themselves, they filed first written bills which were reserved to the overruling of these preliminary motions all recite. During the trial of this case, Skinner, Gueldner, and Chauvenet filed motion to quash, motion for preliminary hearing which were overruled and we reserve these bills.
Abe Fortas: Mrs. Korns --
Louise Korns: Yes.
Abe Fortas: I missed something that you said there. Did you said that under Illinois law, when one joint defendant files a motion --
Louise Korns: Louisiana law.
Abe Fortas: I mean Louisiana law, when one joint defendant files a motion that is considered as if it were filed --
Louise Korns: Not motion Your Honor, bill of exception.
Abe Fortas: It applies only for bill of exception.
Louise Korns: Yes but Mr. Link here adopted all the motions of the fail to file of these -- never objected before trial that his client had been in anyway prejudiced. In fact, how could he when he'd been given all these stuff. Not only that, he used the transcript of the pre-trial proceedings to attempt to impeach witnesses at the trial. Now, Louisiana's position is this. It was too bad that Chauvenet wasn't at those preliminary hearings. We can see that. But unless this Court is going to hold that double jeopardy has set in and that Chauvenet can never, never be tried because of this mishap, then how will Chauvenet be put in a better position if this Court gives him a new trial than he was in already here. Because he had the transcript of the proceedings, all of the pleadings, he was given 60 days to file any motions of his own. He adopted these pleadings as his own. He used the transcript at the trial to cross-examine the witnesses any -- the two witnesses who appeared at these pre-trial hearings, Russell Abe and Fullington appeared again at the trial of the case so we don't have the point of situation here at all. We don't have the point of situation because the two -- the only two witnesses who appear to these preliminary hearings appeared at the trial were cross-examined by Mr. Link using the testimony before trial to try to impeach them, so Louisiana as I said before and will say for the last time, if this Court should give Chauvenet a new trial because of his absence and unfortunate we conceded from these preliminary hearings after the trial judge did everything in his power to repair the damage and Mr. Link never before trial complained that his client was injured, then Louisiana doesn't see how he can be helped any further unless this Court says it's double jeopardy has set in and you can never try this man. And I will conclude Your Honor that point unless some of the members of this Court would like a further discussion on that particular point.
Abe Fortas: Did the Louisiana court say anything about this point?
Louise Korns: Yes, they said that they didn't see how Chauvenet had been damaged by this point because this motion was filed. I tell you Your Honors a few more little things that are coming in my mind since I said I'd finish the argument. There was a motion to suppress filed and I concede that if this motion to suppress had been a valid motion, we would have problems here but it turns out a law of search warrant was sworn out in this case and the motion to suppress was based on the search warrant. As a matter of fact, the motion to suppress fell flat on its face because it became immediately clear after a couple of minutes that the motion is suppressed that the police officers who had searched in his motor mart under the search warrant had found nothing. You see the evidence which was introduced at the trial of this case was the marijuana which was bought by the undercover agents in the transaction when -- so nothing and when the police officers searched Skinner motor mart under a search warrant after arresting these three men, they found nothing in the motor mart. Therefore, Mr. Gill withdrew his motion to suppress because it became moot. There was nothing to suppress. So the absence of Chauvenet, the fact I concede that if a motion to suppress was filed in the case involving three joint defendants and one of them wasn't present there and the evidence was later introduced against him at the trial, I concede that we would have a problem but that didn't happen here. So the preliminary hearing that was held applied only to Skinner and Gueldner and whether Louisiana had made out a prima facie case bind them over for trial. It didn't affect Chauvenet at all. And the fact that Chauvenet wasn't present at these earlier meeting as Louisiana's position as we've said was unfortunate but we feel that trial judge did everything in his power to repair this as much as anything which is done can be repaired and that Chauvenet couldn't be in any better position in a new trial that he was in here because of what the judge did before trial to bring him up to day as it were, give him time for pleadings and everything to file in his own. Now, I'll go on to the discussion of the late hours of trial, if Your Honors please.
Byron R. White: Just to get it straight, Mr. Gill represented two defendants.
Louise Korns: Skinner and Gueldner, yes Your Honor.
Byron R. White: And Mr. Link represented Chauvenet and no one suggested anything wrong with Mr. Link.
Louise Korns: Oh! No, Mr. Link has done very well with Mr. Chauvenet. represented him very well and I think Mr. Link was right. I mean, there was no reason to file any of these extra motions on Chauvenet's behalf because he had all the pleadings, he had all the testimony, he had everything which the other accused had gotten in the pre-trial. For the purposes of discovery, you might say, he kind of knew the state's case because of the testimony he had taken on the preliminary examination so forth and that's clearly why he didn't go and just re-file the same motions on behalf of Chauvenet which I imagine that's why. Now, as far as the late hours of trial ago, Your Honors, Louisiana's position on this is that we just don't feel like a two-day trial like this. The jury wasn't -- they didn't finish selecting the jury until around three o'clock in the afternoon on the first day of the trial March 21st. Then testimony was heard until around six and there was two-hour recess for dinner there about, so the jury came back around eight. The state put on its case, the rest of the night until midnight. At about 11:30, the state rested. And this is the time which Mr. Gill asked for a continuance in the case. The trial --
Earl Warren: Continuance or a recess?
Louise Korns: Well, a recess because until the next morning, yes Your Honor. The trial judge said, “No, Mr. Gill. Let's finish with the evidence tonight.” Then the defense took a recess of 35 minutes, came back in and put on his case until quarter to three. At quarter to three, defense rested.
Byron R. White: Is that -- was this very usual trial practice in Louisiana?Mrs.
Louise Korns: I'll say, let's say that it's not an everyday occurrence but it's not all that unusual specially this Judge Becker likes to keep his docket going and --
Byron R. White: He certainly must.
Louise Korns: Yes, he does and there have been lots of continuances in this case. Mr. Gill had gotten lots of continuances as you'll see from the dialogue between Judge Becker and Mr. Gill his Judge Becker said to Mr. Gill, “Mr. Gill, you got a continuance after a continuance in this case, we're going to finish this matter today.” And so I'm sure --
Thurgood Marshall: Was this all in the front of the jury?
Louise Korns: Yes, Your Honor, it was.
Thurgood Marshall: And it was objected because I remember the last line. Mr. Gill objected.
Louise Korns: Yes, I don't think that --
Thurgood Marshall: He said something in the last sentence.
Louise Korns: He asked, he actually -- I think he did object to the time but I don't think that's been one of the things that they have been complaining about in the Supreme Court of Louisiana here. He's been complaining that he wasn't given his recess actually. He's been complaining that he was sick and that he was ineffective counsel because he wasn't given his recess.
William J. Brennan, Jr.: Even if you were well, I wouldn't care to try cases at three o' clock in the morning.
Louise Korns: Well, the trial judge --
William J. Brennan, Jr.: Would you -- would you?
Louise Korns: Well, the thing is that -- things --
William J. Brennan, Jr.: Well, would you, would you?
Louise Korns: I wouldn't for one night Your Honor. For one night, I mean, for law examinations, for all kind of things you go through these things, I would say definitely. And as a matter of fact, I think Your Honors can take judicial notice of the fact that getting just about six hours sleep just one night if anything is sort of some stimulates you sometime you're in the middle of the trial. This trial ended the next day.
Thurgood Marshall: Would you mind if I don't take judicial notice in there. I mean personal --
Earl Warren: As I recall it, the judge said he knew that Mr. Link had been sick, didn't he?
Louise Korns: That Mr. Gill had been sick, he did. Mr. Gill, the record shows and Judge Becker knows that Mr. Gill has been chronically -- Mr. Gill has been chronically ill but not seriously ill since 1954. This case at argue had been continued several times because Mr. Gill was in the hospital. He was in the hospital, he goes in and out of the hospital because he has chronic conditions, nevertheless, he functions, he doesn't want to give up his law practice and he does a very good job like in this case as Your Honors will see. He put on 17 witnesses and he cross-examined those witnesses in detail and Mr. Link was sitting there by him the whole time and he never asked Mr. Link to help him. Mr. Link got up and made a few you know cross-examines some witnesses of his own but Mr. Gill cross-examined them all them and then when the judge recessed the trial at 3:30 and said come back at 9:30 the next morning, nobody complained that they wanted more sleep and said, “Please don't make us come back at till 10:30, 11:30 or 12.” Nobody complained. The next morning, although Mr. Gill claims six months later that he'd been sick that night, he didn't call his doctor. His doctor has been his doctor since 1954. He could have called him in that 35-minute recess that night. He didn't call him. He didn't bring him into court the next morning. He showed up, argued for an hour and a half to the jury. The jury deliberated for two and a half hours then nobody made any objection to sleeping jurors. Nobody said anything about it. Nobody noticed it. But on motion for new trial after the conviction, then Mr. Gill comes in and says, “I was sick, the jurors was sleeping.” The hearing was held six months later and that's when Mr. Gill brought in the doctor and say, “How sick he'd been that night?” Now --
Earl Warren: But the judge said he knew he was sick.
Louise Korns: Well, the judge knew he was chronically sick, Your Honor. But if a lawyer has a chronic condition like Mr. Gill in diabetes and functions all the time, anyway --
Earl Warren: At three o'clock in the morning.
Louise Korns: If he's functioning alright, I mean, I'm sure Judge Becker would have called a recess if he had seen Mr. Gill faltering but Mr. Gill, he ought to seem in operation. He's a good lawyer. I mean, he's vigorous, he's -- Your Honors will see from this record. He doesn't falter at all and we've cited many cases. I know that each case like this sort of has to stand on its own facts but the jurisprudence of both the Federal and State Court seems to be that if a lawyer functions well, then his client's rights have been protected. I don't see how Mr. Gill could -- I don't see how any lawyer could have done better than Mr. Gill did here. I admit that it was hard on him and probably hard on everybody but when you put on 17 witnesses cross-examined or reserve five or six bills in exception, the very bill that he won the first time before in the Louisiana Supreme Court.
Earl Warren: There could have been a great deal of cross-examination of 17 witnesses between 11:30 and quarter to three, could there?
Louise Korns: Let's put it this way Your Honor, the accused did not take the stand before the jury.
Earl Warren: No, but there's 17 witnesses you said.
Louise Korns: They were character witnesses, a lot of them, people to show who was at the lot. I mean, I think Your Honors will determine and when you see this record that these witnesses were cross-examined as much as and more than had fitted in to the situation of the type of witnesses they were. In other words, they were in there to say a lot of them character witnesses to say they'd known Mr. Skinner, Mr. Gueldner and they had no records and so forth. Each one, I think the record shows was very -- was exploited to the fullest of what he could contribute to the defense of this case.
William J. Brennan, Jr.: Mrs. Korns --
Louise Korns: Yes sir.
William J. Brennan, Jr.: Does Louisiana make a distinction on this point between the situation of Chauvenet and the situation of Skinner and Gueldner?
Louise Korns: You know the words for the counsel --
William J. Brennan, Jr.: On this late hour business. On the late our business.
Louise Korns: Yes well, during the oral argument of course -- during the oral argument, I remember an interchange between the Court and counsel that if they should affirm, give or grant a new trial on this point that this couldn't apply to Chauvenet because his attorney was, you know not sick and was -- but --
William J. Brennan, Jr.: Do you press that here that even if Skinner and Gueldner were entitled of a new trial on this point that Chauvenet?
Louise Korns: I haven't raised it but right now I do.
William J. Brennan, Jr.: I see.
Louise Korns: I neglected to urge it yes, I did.
Thurgood Marshall: Mrs. Korns.
Louise Korns: Yes, sir.
Thurgood Marshall: You answered a question earlier about the late trials of New Orleans and I'd like to be more specific, do you -- every once in a while having been run up until three o' clock in the morning.
Louise Korns: Your Honor.
Thurgood Marshall: I mean, take --
Louise Korns: This was kind of late. Now, I think the reason this happened -- the reason I think this happened was that the trial judge was afraid that if he granted a continuance at 12 o'clock after the state had put on its case that maybe nobody would show up the next morning. He'd have to declare a mistrial and start all over again because this had been going on, this was -- he had already granted I think five continuance is the record in here shows and I think he just decided -- now, this is just my own view that if he granted a continuance, that if he granted a recess before the defense had put on his case, after the state had put on its whole case that he was going to have no counsel the next morning and have to declare a mistrial.
Thurgood Marshall: Do you know of any other instance where one is going until three?
Louise Korns: I have heard of it around the Court of some going on all night, Your Honor. But there is nothing in the record hereon. No evidence, let's put it this way -- defense did not make any attempt to show by putting on any kind of evidence and therefore the state also did not -- to show whether this was a practice of how often this had happened and so forth. They just said that they were prejudiced and we said you were not prejudiced.
Thurgood Marshall: But the trial goes on for 24 straight hours up to the night.
Louise Korns: Well the --
Thurgood Marshall: And these lawyers would have to ask for some amendment to cruel and inhuman punishment.
Louise Korns: Well, Your Honors, you know the trial didn't really start her at three o'clock in the afternoon.
William J. Brennan, Jr.: Well, you're picking the jury before that.
Louise Korns: They were picking the jury, that's right. That's right, that's right.
William J. Brennan, Jr.: That's (Voice Overlap).
Louise Korns: Well, that's true, that's true. But remember Your Honors, Mr. Gill had Mr. Link here with him and Your Honors will see that Mr. Gill did nine-tenths of the trial work. Now, --
William J. Brennan, Jr.: That what day of the week was this? That any bearing?
Louise Korns: No, I don't know. It was the 21st and 22nd of March in 1966 so we can find that out. But now the state believes that if Mr. Gill had really been sick, why didn't he call his doctor that night? Why didn't he ask for a longer recess and from three in the morning, quarter to three until 9:30 the next morning? Why didn't he show up the next morning with the doctor? Why was he able to act so vigorously in defending his clients, in arguing to the jury, and reserving bills, everything that a lawyer should do?
Abe Fortas: Well what must he have done, collapse in order to --?
Louise Korns: No but he could have acted -- he could have acted inadequate. He could have -- now you know, Your Honors.
Earl Warren: Counsel says he was inadequate. He even forgot to prove some things.
Louise Korns: Yes, those things they say he forgot to prove were completely immaterial like what call them the marijuana statute in --
Earl Warren: He might seem so now but it might not seem so in the courtroom.
Louise Korns: Your Honors, the way you read this record when Chauvenet says the marijuana is in that car. He doesn't say the marijuana is in Skinner's car and he just says I put behind -- like I put it behind the bush someplace.
Earl Warren: Well I can't argue the facts because I don't want to.
Louise Korns: See there's no -- there's no -- the state didn't attempt to prove it that the car was Skinner's. You see, I mean it was just a car where the marijuana was found. Nobody attempted to prove. This isn't one of the items of proof against Skinner that it was found in his car. There's no evidence here to show it was Skinner's car as far as I see.
Speaker: You know what hours the Courts meet out in the country counties of Louisiana?
Louise Korns: No, Your Honor I don't. I -- I've talked to lawyers. I was just talking last night to a lawyer who practices law in Maryland and tells me that it's not at all exceptional for trials there to go on until all night even now this doesn't happen night after night but when you get a trial started and you got in the jury there and the states put on and part of the case has been put on, they generally go on through.
Speaker: I'm glad the practice is different in New Jersey I must say.
Louise Korns: Well, this was just a conversation I had. You know, as I say there's no evidence in the record one way or the other to show how this fits in with common practice and there whole argument was that they weren't able to effective counsel, our whole argument was that the record showed you were effective and we can't see how counsel could be more effective.
William J. Brennan, Jr.: Well didn't the judge have some troubles here? He seems to have confused this case with another one, at least the charge was -- the charge he made wasn't relevant to this case.
Louise Korns: Let's get on to the third point, alright.
William J. Brennan, Jr.: Well, isn't that -- is that the fact?
Louise Korns: No. It's not at all the fact. As a matter of fact, defense would like you to think that the judge was confused but the judge wasn't at all confused and as a matter of fact that he hadn't charged the jury on the law of conspiracy, the accused would have been prejudiced for this reason. These three men were jointly charged with sale and possession of marijuana. Now, the actual delivery of the marijuana to the undercover agents took place just by Chauvenet although Skinner and Gueldner were on the lot and introduced the undercover agents to Chauvenet, they were not there when the marijuana was actually handed to him. Therefore, during the trial of the case, Mr. Gill objected when say, agent Fullington, agent Abe there was testifying as to how he bought, how they bought the marijuana from Chauvenet. Mr. Gill objected Your Honor. This act is inadmissible. It took place out of the presence of my client. Well, certainly this is a good argument if there's just one defendant being tried because as Your Honors know, he can only introduced against an accused statements all acts that were done in his presence. But the exception to this rule, the recognized exception in all jurisdictions is that if a conspiracy is involved in the case, you can introduce acts of any of the conspirators and if that the jury finds that a conspiracy existed, it's imputable to everybody. In other words, three people could decide to murder or rob and one person to stay home the whole time and the other one go out and do it, if you could prove that they conspire to do this, the person who stayed home would be just as guilty as the murder or so forth as the person who went to do the murder. So in the instant case, the trial judge allowed in this evidence of acts which took place out of Skinner and Gueldner's presence, allowed it in because the state, the judge's rule had made a prima facie showing of conspiracy. That a conspiracy existed between these three accused. Now, when the trial judge came to charge the jury, he told them very --
Earl Warren: Just finish your statement.
Louise Korns: Yes, that he told the jury -- he told them about the law of conspiracy and then he said, set out on page 28 of Louisiana's brief, “unless you're satisfied that a conspiracy has been established, I charge you that the acts and declarations of one other parties to the alleged conspiracy do not bind the others.” Therefore, the state feels that he was protecting, in fact the state knows that he was protecting the rights of Skinner and Gueldner when he told them this. Because if he hadn't told the jury this it would have been the trial judge you would have decided that a conspiracy existed. The trial judge would have been allowed evidence of the acts of Chauvenet out of the presence of Skinner and Gueldner and it would have had -- it would not have left it up to the jury whether to impute these acts of Skinner and Gueldner or not.
Potter Stewart: No conspiracy was charged.
Louise Korns: No sir but it's well-settled in Louisiana and in other jurisdictions that the -- that when you indict two or more persons, a conspiracy is involved in --
Potter Stewart: Just as co-defendants for the substantive offense. Is that right?
Louise Korns: It really is to govern the laws of evidence Your Honor. It's because for this very reason that I've said so that you can -- because otherwise, you couldn't -- because if three people commit a crime altogether at all times, you don't have this problem. But if more than two people -- if two or more people commit a crime, generally, they are not together all the time. And unless you have this law governing the introduction of evidence which permits, which says that the acts in declarations of a conspirator are deemed to be consented to by his co-conspirators whether he was present or not.
Hugo L. Black: Mrs. Korns, may I ask you how long this gentleman has been a judge? Do you know?
Louise Korns: Had Judge Becker?
Hugo L. Black: Yes, the one who tried this case.
Louise Korns: Yes, Judge Becker was elected I think about three years ago.
Hugo L. Black: Do you know how old he is?
Louise Korns: He's -- I think he would say in his 60's Judge Black. I would say in his early 60's. He was a criminal lawyer before that for a long time. As a matter of fact, I think he's argued cases before this Court and he was elected well, let's say three -- two to four years ago.
Potter Stewart: Mrs. Korns --
Louise Korns: Yes.
Potter Stewart: Under your practice, who determines that sentence to be imposed, the jury or the judge?
Louise Korns: The judge does unless it say guilty as charged. We have in capital cases than the jury can bring in two verdicts, guilty as charged or guilty without capital punishment. Both of those I think are set because guilt without capital punishment means life imprisonment. Under say this particular case?
Potter Stewart: Yes.
Louise Korns: The judge has a range of sentences set out by the statute that defines the crime of illegal possession of drugs says that anyone and depending on the age of the person who sells and the age person who receives it whether it's selling or possessing, the sentence ranges from say I think say the minimum for sale is ten years, the minimum for possession is five years and the maximum set out also.
Potter Stewart: Well here, Mr. Chauvenet got a sentence of 50 years at penitentiary for marijuana.
Louise Korns: That's on the double, that's because he was double billed or even triple billed.
Potter Stewart: And who set that, the jury or the judge?
Louise Korns: Well, double billing again in specially for selling, I think double billing, that might have been a minimum sentence. I'm not sure, Your Honor.
Potter Stewart: Minimum sentence of 50 years for possession of marijuana?
Louise Korns: Well, this was because he was double billed. You see that means --
Earl Warren: What do you mean double billed?
Potter Stewart: What is double billed?
Louise Korns: Double billed. This means, you know, I think you all call it repeat of statutes.
Earl Warren: Repeat of counts.
Louise Korns: No, sir. It means that when --
Potter Stewart: He had a record.
Louise Korns: He had a record, that's right within -- that's it.
Louise Korns: Habitual offense.
Earl Warren: Prior convictions.
Louise Korns: Yes, within a certain number of years of that conviction and this record here will show that the bill of information that we call double billing goes in and recites that on such and such a day, maybe it was twice. I don't know whether this was a third or second time the accused was found guilty and generally has to be within a time and it has to be a felony and so forth that such an offense. And then under the statute setting out the habitual offender sentences, the sentences get pretty stiff under these. Well, there are some armed robbery statutes that you know go up almost to life imprisonment if you keep on by the third offender or so forth. But this 10 years you see Skinner and Gueldner for the same offense got 10 years, I think if I'm not wrong that Chauvenet was a third offender. He might just have been the second offender but it was certainly because of that.
Hugo L. Black: That didn't challenge you on the grounds that some matters or something?
Louise Korns: No, Your Honor. I think that if Your Honors look at the statutes in the record, I don't think the -- it may be that it was the minimum that the judge could give under the number of previous offenses which had been -- which he was guilty.
Earl Warren: Very well, thank you.
Louise Korns: Thank you, Your Honors.
Earl Warren: Mr. Leppert, you have a little time left.
George M. Leppert: Mr. Chief Justice, Your Honors and in reply to the question as to what the State Supreme Court disposition was of the lack of representation why -- of Chauvenet, I might say that it's covered most succinctly in about 20 lines, the factual background is starting at 391 and the rationale is in about 10 lines on the top of page 392 of column 1 of 204 southern second. And I'll use half of my five minutes just to read that if I may. Here's the whole disposition of that major argument. The Court said, “It is true that the minutes of court must show that the accused was present at every important stage of a trial for a felony when the moment of his arraignment to his sentence stating a number of state, deciding a number of state cases. But at stated supra, defendant Chauvenet pleaded not guilty and was thereafter represented by counsel. Well, he was represented only in the sense that he had one on paper who never showed up for a period of --- she is correct, it wasn't a whole year, it was about seven months. But for seven months he was represented on paper only. They continue into this. His counsel did not file a motion to suppress under such circumstances, we conclude that it was imperative that he be present at the trial of the motion to suppress and dismiss, filed by defendants Skinner and Gueldner. Chauvenet suffered neither prejudice nor violation of his constitutional right. They don't go into the question of whether this was part of his trial. It just that --
Hugo L. Black: Was there any evidence offered that was taken under search which is --
George M. Leppert: They -- it was extensive evidence Mr. Justice Black in connection with the motion for a preliminary examination which under our law could have been used at the trial.
Hugo L. Black: A set delay you would say, but there was no -- the search did not get it.
George M. Leppert: No the search that was withdrawn but there was 40 -- between 45 and 50 pages of testimony on the motion for preliminary hearing and motion to -- motion for preliminary examination and bill of particulars, there was extensive evidence on that. Now, I say --
Byron R. White: But none of it was ever offered in trial.
George M. Leppert: No the evidence was offered but I'm saying the motion to suppress --
Byron R. White: None of the testimony that was taken at those hearings was offered to the trial.
George M. Leppert: Except in so far it was repeated. No, it was not offered as such, no sir. Now, in conclusion, I want to give you the climate of this business, of why they have they had to work that late at night. Mr. Gill in his motion for a new trial wanted all the medical testimony and he pointed out, the record in 331, volume 2 that he was able to work normal hours if he just finish the case and he went four hours before the Judge Cox, the one who succeeded the present judge and the trial judge says, “You're trying it with an old man, he doesn't have energy.” And a moment later he declared that record 331, “I succeeded the man you tried the case with and his docket was in terrible shape. I cleared it up, the backlog he left. The only way I do it is because I force lawyers to try cases, defense and state, that's the only way the judge is going to stay up on his docket.”
Hugo L. Black: Isn't that pretty good philosophy?
George M. Leppert: Yes.
Hugo L. Black: They went all the Court working justice?
George M. Leppert: Yes sir but we reply to that that there are limits to it and we stated on page 67 of our brief to the State Supreme Court, a judicial docket which moves along as blindly and inexorably as an assembly line may drop off the volume of oddly shape judicial products and that's what we claim up here.
William J. Brennan, Jr.: Incidentally, I notice -- I looked at the calendar this was on a Monday. This trial was on Monday and Tuesday.
George M. Leppert: Sir?
William J. Brennan, Jr.: Apparently, the trial days were a Monday and Tuesday. I think --
George M. Leppert: I believe that's correct.
William J. Brennan, Jr.: Well, I suppose the judge will have a rather large calendar on a Monday wouldn't he, to disposed of before the --
George M. Leppert: Yes but there was no -- the record doesn't show any reason move and as far as his previous continuances, the record has bear of any time with his previous medical condition. It's merely a supposition that Mr. Gill had gotten previous contingencies. There were several reasons he might have gotten. And one of them was the states would have to amend the bill. I submit.
Earl Warren: Very well.