Warren E. Burger: We will hear arguments next in Radzanower against Touche and Ross. Mr. Sands you may proceed whenever you are ready.
Ira Jay Sands: Thank you sir. Mr. Chief Justice and Mr. Justices of the Court, we have a very simple factual situation here, in which a National Bank is one of a number of defendants under a 1934 Act, securities action a 10 (b) (5) claim. And, we go back to a widely known dispute in this nation, in which we find the Third Circuit now, recently aligned against all of the other Circuits, as to whether in a securities related 10 (b) (5) action, the plaintiff must divide his case and must sue the National Bank in the particular district in which that National Bank was established or whether under the wide venue provisions of the 34 Act, a plaintiff may join the National Bank, together with the other defendants in the district in which the violations took place or as the 34 Act permits, where the defendants maybe located or found. It is our position, that in the Second Circuit, where this action commenced, under the Bruns, Nordeman case, this situation is jelled and a divided or bifurcated litigation will be required. It is our position sir, however, that that is erroneous and that the 1864 National Bank Act was not necessarily repealed by implication or otherwise by the 1934 Act, but that the venue provision of the 1864 Act was broadened, was extended in the one instance in connection with a 1934 Securities Act violation. Now, to lightly touch upon ancient history in these hollowed --
William H. Rehnquist: Mr. Sands, you say in one instance and you are talking of course about the 34 Act, but 15 U.S.C. 77 V, the 33 Act, and the Interstate Land Sales Regulation, there are certainly are other Acts giving general venue for specific courses of action, which would be effective by a decision in this case, are there not?
Ira Jay Sands: Your Honor, we of course, are concerned with a 34 Act and a 33 Act, which were overlaid as well. However, Your Honor is correct, when any Act states that the defendants maybe sued in a venue where they maybe found or where transaction took place. I would agree Mr. Justice Rehnquist that the argument I am professing for the 34 Act would apply if the language were similar. Now, going back to Ancient history of these hallowed halls, we know that a National Bank is an arm of the American government. The cases are -- the law had not been cited for the lack of pilling on additional material. The First National Bank was organized in the late 1700s as an arm of the government and it could not be sued as the government cannot be sued without its consent. Now, until the 1863, as modified by the 1864 Act, one could not sue a National Bank, which was set-up to administer currency, which was set-up to administer the fiscal policies of the United States, except as specifically permitted by the Congress, by the sovereign.
William H. Rehnquist: I thought that there were no National Banks until 1863, before that it was the Bank of the United States?
Ira Jay Sands: Your Honor, my understanding is that there were national chattered banks prior to 1863, but the 1863 legislation, which then found itself amended in 1864 was an all encompassing scheme for the institution and the using the broad scale operation of national banks, but the first bank we find out in the brief of the SEC as amicus in their footnote --
William H. Rehnquist: Well, the point may not be important to your argument, but I did not mean to have you spend a real good time on it.
Ira Jay Sands: My recollection is not precise as to the thing in the SEC's amicus brief, but it is in the footnote that the First Bank was called Bank of the United States and then we had a lapse of its charter some ten years or so later and then later another bank was set-up to administer the fiscal policy of the United States called the First Bank of the United States or First National Bank of United States. And, the 1863, 1864 legislation was all encompassing, a schematic to operate national banks. Now, we take the position that this was permission by the sovereign to be sued to have one of its instrumentalities sue and the sovereign determined where it can be sued. It can be sued in the district in which it was constituted. Now, we take no issue at that until 1933-34. In 1933 and 1934 of course, we find as it is commonly called the Roosevelt Legislation concerning the 33 Act, and the 34 Act, the so-called remedial statutes concerning banks and the like and we find that we have a number of cases of Bell against Hood, SEC against Joyner (ph), the remedial statutes. We go all the way down to Affiliated Youth case, which was decided only recently, SEC against Capital Gains Bureau, the idea that the remedial statutes be broadly and non-restrictively interpreted.
Harry A. Blackmun: Mr. Sands is there anything in the legislative history that shows that Congress actually considered national banks at the time of the enactment of the Securities Acts?
Ira Jay Sands: Mr. Justice Blackmun I say yes, emphatically yes. The national banks in 33 and 34 were under consideration. There is a senate report, which is referred to in our briefs. The SEC has referred to that. The Control has referred to it, as well, as we did. The problems of national banks were divided in our analysis in two parts. One; the necessity to protect the investors and the deposits. We all remember the run on the Bank of United States.
Harry A. Blackmun: Direct my question, however, to the venue provisions?
Ira Jay Sands: Yes sir. There is nothing precise Mr. Justice Blackmun that we have been able to locate, which indicated that the Congress considered the venue provision of national banks at that time. We can only reason from our incisiveness, which we hope is accurate. In that there is decisional law, which indicates that Congress knows every statute on the subject when it legislates. Congress did set-up the Glass-Steagall Act to concern itself basically with protection of depositors, protection of the bank itself in that regard. Congress set-up the 33 and 34 Act in which it did not set forth any exceptions, whatever, to the venue provision with regard to any actions concerning the 33 and 34 Act. There is no legislative history that the precise question was ever discussed. It is merely by inference. Now, our position is that there is no reason for implied repeal, although the facts as they approach would give us the effect of the implied repeal, if we would like to, but judicially we are constrained to say that both may exist together if that is possible. Now, our interpretation of these Acts would leave both fully intact in securities matters, the plaintiff and the commission would have its choice of venue, in non-securities matters or except as Mr. Justice Rehnquist aptly pointed out in other matters where there maybe specific statutory language, one would have to follow the Bank Act of 64. Now, Congress did exempt in the 33 and 34 Act when it is so desired. There were certain definite exemptions in Levin against Great Western Sugar Company, which was a District Court of New Jersey case which started the Third Circuit run of matters that indicated that there was a wider venue than did the Second Circuit. The judge said, “A quick examination of the 33 and 34 Acts reveal that on a number of the cases the legislative draftsman found fit to exempt national banks and their securities from provisions of the act.” And then, he cites 15 U.S.C. 77 (c), 15 U.S.C. 77 (l),” etcetera. It becomes clear that the legislative draftsman knew about national banks, when writing the securities acts and knew how to exempt them from provisions of the acts, when they chose to do so. It would be a new usurpation of legislative prerogatives for this Court to impute an exception to the 34 Act in view of the background just described. Now, the Chicago Bank as amicus in its brief admits that there are exceptions for United States Banks, for National Banks and for the United States government from the registration requirements of the 3 (a) (2) of the 33 Act. The Controller admits that as well on page 6 and again on page 16. In this Court, in Carnation against Pacific Conference in 1965, quoted United States against Borden, which is 308 US to this effect, “If Congress had desire to grant any further immunity, Congress doubtless would have said so.” The courts have in addition carved out additional immunities from the 1864 venue. For instance, this Court in 1968, in Great American Insurance against United States carved down an exception for a claim being filed by a national bank in the Court of Claims and said that the national bank must go to another district where the Court of Claims were sitting in a particular matter, in order to file its claim and the national bank there said, “But you are taking us out of the district that the 1964 Act required.” This Court said, “No, if you are filing the claim under the Court of Claims Act you must go to that district, where that matter is now pending.” In transfers under the JPML, which happen all the time, the JPML has consistently said to national banks, “You must follow along the case. You are not protected in any manner by the 1864 venue to have a separate bifurcated pre-trial in your own district. You must follow the case and of course, you come back later on after the pre-trial is concluded” and we have that in such cases Pittsburgh and Lake Erie Railroad, Great Western Ranches, Len Turner (ph). We have that in Westec. Now, we have another rule, which has been followed by the District Courts, I have not found authority that it has come up here and that is concerning the impleaded third party, where a national bank is impleaded as a third party and then says, “Wait, I can only be sued in my own District.” The District Courts, the Circuit Courts, we have a Fifth Circuit, Lone Star Package against Baltimore and Ohio Railroad said and there were others, said, “No, if you are a third party impleaded defendant, you must go to the district, where the action is being litigated.” Basically, the reasoning behind that I believe has been judicial economy. We can just visualize the number of different bifurcated trials that would result if the banks had that cloak of immunity. Now, I do not, in fact I insist that the Congress did not in 1864 give the banks a cloak of immunity, but the Congress as the sovereign in 1863 and 1864 opened the field, opened the wall of sovereign immunity and gave us permission to sue national banks at that time. And then, in 1934 the Congress again opened the wall of immunity, because of the overriding concern for the populous involved in the securities frauds. So, it is not a question by which our national banks have for 30 years impressed the lower Courts that they are protected, that there is immunity, that the statute was made for their protection. I say no. I say the 1864 statute was made to permit the banks to be sued, not to protect the banks from all suits. The 1934 statute was enacted to permit banks to be sued a little more widely in a more practical sense. Now, there is no reason why both of these interesting statutes may not live together, may not be supplementary, may not each be fully effective, they certainly can co-exist. We found that in the Robertson case 422 U.S., where we had two Acts, which permitted to co-exist. This Court has frequently admonished the lower Courts to attempt to prevent conflict in statutes, achieve the aim of the 1934 Act of Merrill Lynch against Ware, not many years ago. We have been admonished to interpret statutes by practical experience and practical experience certainly would permit the banks to be sued in a securities-related matter, in the same district where everyone else is Aaron Boyle against United States in ‘72. Now, even going back to these interesting old cases, such as Red Rock against Henry, unless the Acts are completely repugnant keep them both alive and we have a long line of decisions. In Wilmot against Mudge, which is 103 U.S. back in 1880, this Court said that both statutes can be said to have their own spheres of operation, if both can stand by any reasonable construction, that construction must be adapted, the basic tenant of law in this nation. We have an interesting case 1846 Beals against Hale and there this Court discussed a parliamentary example, where parliament said that a particular crime was punishable at Assizes Court and then, parliament subsequently allowed another Court to have jurisdiction. This Court stated that examples like that, you must reconcile them, they both must exist and the government in a particular situation like that would have a choice of either forum. Now, in the Posadas case, Posadas against National City Bank, which my learned brother has attempted to interpret against us, this Court said in 1936 that we must seek to interpret the new statute as a continuation of the old statute whenever possible. There certainly has been no statement in any statute or in any interpretation by this Court that a previous Act may not be enlarged, that a venue may not be enlarged. The United States both carries against U.S., 400 U.S. 351 in 1971, which concerned seamen wages and the old law was that the shipping commissioners would determine any problem of seaman's wages. Then, came a modern law, which set-up the Labor Management Relations Act, a very modern procedure, but it did not repeal the old. This Court held that the old Act was a very literal one; the new Act was a progressive one. However, that did not permit this Court and did not permit a Court to abrogate or repeal the old Act and that they both would exist as two separate possible methods of procedure by the seaman, who was injured in his financial rights. Now, we do have our decisions of this Court, which insist that the power to enforce, implies the power to make effective the right of recovery afforded by the 34 Act or by remedial statutes, a case against Borac (ph), which cites with approval, Bell against Hood, 1946, may I quote this shortly. “It is well settled that where legal rights have been invaded and a federal statute provides for a general right to sue for such invasion, Federal Courts may use any available remedy to make good the wrong done.”
Potter Stewart: What is you say is, just before you proceed if I may interrupt you, it has been your submission up to now that these two statues can co-exist without -- can compatibly and continually co-exist. Have I understood you correctly, have I?
Ira Jay Sands: That is my strongest argument. I feel strongly about that. I have also placed my leg on the other point that even if they cannot co-exist.
Potter Stewart: If one only looked only at the text of the venue provision of the National Bank Act, the 1864 Act, your argument will have a very great deal of (Inaudible) I think, because it simple provides that actions and proceedings against any banking association maybe be brought, but we have Langdeau case and the Michigan case, which construed that language in that statute to say that this is exclusive, it is not permissive, that it is exclusive and I do not really follow you when you said that these two venue statutes can co-exist. I do not mean that you will loose your case if they cannot, but the Security Exchange Commission, for example tells us that these two venue statutes are in hopeless and irreconcilable conflict?
Ira Jay Sands: I cannot --
Potter Stewart: You obviously disagree, because you say they can both co-exist?
Ira Jay Sands: I do not fully agree with my very learned brother at the SEC and I have told him that. I think he has taken a strong viewpoint, they cannot co-exist. It is my position sir that the cases, which you mentioned refer not to two special federal venue statutes.
Potter Stewart: No, but they did construe the venue provision of the National Bank Act.
Ira Jay Sands: Yes sir, but they construed vis-à-vis a State Act. They did not construe vis-à-vis an equally significant federal statute. The 1864 statute did not say that no future Act may further enlarge venue and the 1934 Act did further enlarge venue. The case which Your Honor has cited, construed the question of permissiveness with regard to state venue and there, there is no question in mind. I do not know of a single decision reasonably interpreted, which would permit any state statute to enlarge the 1864 venue provisions, but Congress is Congress. Congress is in effect a continuing body from the day of the founding fathers to this day. Congress may change its mind. Congress may enlarge what has previously had restricted.
Potter Stewart: There is no question to the fact that Congress could have amended the National Bank Act venue provision. It could have repealed it. It could have done a variety of things to it, but everybody agrees, I gather that there is nothing -- Congress has certainly done nothing explicit with respect to the 1864 Act?
Ira Jay Sands: Explicit it did not, implicit we believe they did. Implicit -- I am sorry I did not mean to interrupt you sir.
Potter Stewart: No, go on.
Ira Jay Sands: Implicit we believe they did for the precise reason that the 34 Act was an all encompassing method of operations with regard to security, something quite new in this nation. The exception was not put in there. I have mentioned that the 34 Act did accept, precisely accept certain activities vis-à-vis securities of national banks, specifically except National Banks, United State Government Securities and similar and I read Judge Bloomfeld’s opinion, language in the District of Connecticut in which he said they knew how, a little sarcastic as I read it, and interesting in his emphasis, they knew how to except if they wish to except. There was no exception. There could be now exception to a state statue which attempted to broaden the 1864 law or accept from the 1864 law. I therefore, I differed with my brother at the SEC in their amicus brief, when I said that the 34 statute is a supplementary to the 64 statute.
William H. Rehnquist: Why did you abandon your waiver argument?
Ira Jay Sands: I have not sir.
William H. Rehnquist: I thought maybe you have?
Ira Jay Sands: No sir, I have not. I feel that waiver is a hard road to hold --
William H. Rehnquist: I notice you did not cite the Nearble case 308 U.S. where this Court held that there had been a waiver by a corporate defendant of a right to be sued under the statute, by filing of a consent to service of process, not too different from that in our case?
Ira Jay Sands: No sir, we did not cite that case. There have been situations where waiver has taken place.
Byron R. White: You did not -- you have not raised the waiver issue in your petition for certiorari, right?
Ira Jay Sands: We did sir. I believe we raised it in the petition for cert and we have raised in each one of our briefs. We have not, however, hammered hard upon it. I feel that waiver is our weakest argument in this regard.
Byron R. White: Do you think your question presented -- subsumes the waiver issue? You present one question, should not there be important once brought a serious conflict by declaring the more liberal venue provisions of Securities Act prevail over the stringent national bank Act, that is the question that you presented?
Ira Jay Sands: Yes sir.
Byron R. White: Does that include waiver?
Ira Jay Sands: No sir.
Byron R. White: What is the end of the waiver question?
Ira Jay Sands: No, the two questions, which I did present in our brief, I include the second as a waiver and I have said sir without a question that the waiver is the weakest of the two arguments.
Byron R. White: We did not add certiorari on that question, because it was not presented?
Ira Jay Sands: I am perfectly content Your Honor to hold firm on the question of both statutes living together or in the alternative.
Byron R. White: Your argument is is quite error somehow?
Ira Jay Sands: No, I do not sir.
Harry A. Blackmun: (Inaudible) the waiver not in the question presented, but you talked about it elsewhere --
Ira Jay Sands: In the body sir.
Harry A. Blackmun: You gave much greater emphasis to it in the District Court than you have here in your brief?
Ira Jay Sands: Your Honor, Mr. Gatley (ph) who argued in the District Court and in the Circuit Court was met with the dilemma. There is no question as you said to Judge Mulligan, there is no question about that the law of the Second Circuit is very clear, the Bruns, Nordeman case and when Mr. Gatley presented orally the Third Circuit decision and the Judge Mulligan said, “Do you wish us to reverse ourselves?” Mr. Gatley’s language in effect was a polite suggestion that in view of the fact that the retired Chief Judge had previously reluctantly affirmed in the Bruns’ case that he politely was suggesting that perhaps you might reconsider it. In view of the fact that you now have a peg to hang your hat on, the waiver question. The reluctance was something that we were hoping would cause the panel to change. The panel is very quick to affirm. Mr. Gatley held in his hand a Xerox copy of the Third Circuit of the Ronson against Liquifin decision and I believe if I recall correctly you read a passage from it. The waiver was the peg to hang ones hat upon and we could not expect the District Court to reverse the Circuit by a frontal attack upon the propriety of the 1864 statute, either as implied repeal, which I still maintain is our second leg or the cooperation between the two of the supplementary effect, the either or situation. Justices Black and Douglas, may they rest in peace, did have this interesting concurrence in the Michigan National Bank case in which they spoke, they tried to get around it by claiming that there was a waiver situation, because the bank came across the state line to do business and conferred its self in the new state. The problem that we do have with our adversaries is that historically they have taken the position that the National Bank Act of 64 is mandatory and we insist it is mandatory only against a state conflicting decision. It is not mandatory against another special venue provision. Now, a perfect example, although we have not found case law in this Court on two special venue statutes, is the jurisdiction question.
Warren E. Burger: (Inaudible) counsel.
Ira Jay Sands: I am sorry sir. May I close with one sentence, sir?
Warren E. Burger: (Inaudible)
Ira Jay Sands: Thank you. I would suggest, I will urge that any doubts be resolve in favor of lessening the burden of duplicative litigation. We have the Amel (ph) against United States case, which came from the Court of Claims, a multi party wage claim and this Court said, “One form eliminates any problem with transferring venue from several District Courts to one locale. If we are here misconstruing the intent of Congress --”
Warren E. Burger: Is that in your brief?
Ira Jay Sands: No sir.
Warren E. Burger: Go on, finish it.
Ira Jay Sands: It can easily set the matter to rest by new congressional explicit language. Thank you sir.
Warren E. Burger: Mr. Gates.
Samuel E. Gates: Mr. Chief Justice may it please the Court. I am here appearing for the respondent First National Bank of Boston only. At the outset I would like to set the record straight in the posture of this case. Before the lower courts, the only issue raised by petitioner in this case was one of waiver. The allegations of this complaint, a charge that there has been a violation of Section 10 (b), the New York State statute and the common law and that arose out of the latest issue and some false misleading statements by TelePrompter Inc, which have been developed as a result as a formal complaint and investigation by the SEC, where upon a class action was brought in the Southern District of New York. The plaintiff purported to bring the action under the venue provisions of Section 27 of the Exchange Act. That complaint does not allege that the bank which was the agent bank in a $150 million credit loan agreement had anything to do with the latest issue of the false statements. It does not allege that the bank purchased and sold TelePrompter stock or that made any profit out of any of the transactions complained off. The basis of jurisdiction and the cause of action against the bank, as I see it and I am not sure that I am right is that the bank is a alleged to have aided and abet the other defendants. And, it reached this fiduciary obligations to the investing public, because it did not disclose to the SEC, to the New York Stock Exchange and the public generally some information which it had learned as a lending bank and which is alleged to be inconsistent with the statements issued by the TelePrompter. Where upon, relying upon this Court’s decisions in Langdeau and Robertson, which makes mandatory the application of Section 94, we moved under as Rule 12 and Section 94 to dismiss for lack of proper venue. At this point Your Honors, may I say, I want to make our position perfectly clear. We are not saying that the Exchange Act does not apply to a national bank. We are saying only that the venue must be laid in the District where the bank is established. Whatever rights the petitioner may have here, he can pursue in the District of Massachusetts. Now, petitioner has conceded that the bank is established in Boston and indeed as it has been since 1864, right after the National Banking Act was put into effect. And, he conceded in his affidavit, which appears at page 77 (a) of the appendix, that under normal circumstances, Section 94 of the National Bank Act would prevent a bank foreign to this meaningless Southern District from being sued in the Southern District, but they argued because the bank had qualified under Section 131 (3) of the New York Banking law to engage in a limited fiduciary capacity in its activities in New York that constituted an in test waiver. Now, this was the issue which was before the District Court. The District Court found as a fact that there have been no waiver. Petitioner appealed to the Second Circuit, again on the issue of waiver.
William H. Rehnquist: Was Nearble (ph) argued to the District Court?
Samuel E. Gates: It was not your Honor; it was not cited in any of the briefs. At no time in the District Court or in the Court of Appeals, in any of this record until you get to the oral argument before the Second Circuit is there ever a reference to the fact that there might be some conflict between Section 27 and Section 94. There is not one word of implied repeal or repeal by implication. Only when it got to oral argument was the Ronson case, decided by the Third Circuit in 1973 ever mentioned. And then, when it was mentioned by counsel for the petitioner, he did not urge that as a basis for an implied repeal. He did not rely upon it on that basis at all. Now, petitioner has agreed and answered the questions from Mr. Justice White that is effect he has abandoned his argument of waiver. I submit Your Honors please that one has only to look at the question which appears on page 3 of the petition for Certiorari to see that there is a single question positive and that question --
Byron R. White: Are you implying that that question is not properly here either?
Samuel E. Gates: Well, yes I am Your Honor.
Byron R. White: Well, you made this very argument in your opposition for the petition for Certiorari.
Samuel E. Gates: That is correct.
Byron R. White: And we granted the petition with that single question in it?
Samuel E. Gates: I am well aware that this Court has the right to --
Byron R. White: (Voice Overlap) we nevertheless, we had this very argument --
Samuel E. Gates: I understand that Justice White that you have that, but I suggest that on this record and I say with no disrespect, that Certiorari was improperly granted. It was not passed upon by the District Court or the Circuit Court and as I understand Certiorari, a matter is brought here for your review.
Byron R. White: If you have any doubt how the Court of Appeals for the Second Circuit would have decided the issue that is now stated that was stated in the petition for Certiorari?
Samuel E. Gates: None whatsoever as I read the opinion of Chief Judge Henry Friendly in Bruns against Nordeman, followed by the decision of Clyde (ph) against Power (ph), I can see no possibility that Second taking it for a review and as a matter a fact, the Ninth Circuit both in 1970 and 1972 had precisely this issue --
Byron R. White: Are you suggesting we ought to send this case -- to dismiss for petition for cert as improperly granted or vacated and remand so that the Second Circuit may tell us what the answer to this question is in the Second Circuit?
Samuel E. Gates: I think it would presumptuous Mr. Justice White for me to tell you what this Court ought to do and I would therefore refrain from responding, but let me answer it this way. At the time of the argument, before the Second Circuit, Judge Mulligan, who was the presiding judge turned to Mr. Gatley (ph) and said, “Counsel, are you suggesting that this court reconsider or overrule its decision in Bruns against Nordeman and Mr. Gatley responded in the negative that he was not asking that that be done. I submit that on the law as developed in this area. Going back a great many years, but referring specifically to your opinion Mr. Justice White in Langdeau followed by Robertson and the cases that have followed subsequent to that, that there is no need to repeal, particularly when you say the subsidy provision of the Act can be applied. Granted there maybe some inconvenience, granted there may be some hardship, but in this case, I submit that the hardship is much, much less than it was in Michigan National Bank against Robertson and if we are going to decide that repeal by implication is to be determined by the hardship, it would concrete of the decisions that have come down from this Court in the past. Let me move from this question of fact that I have some doubt of whether I should be here today, I know I am, let me try to deal with this question of implied repeal a little bit. This Court has not directly passed on the question which the petitioner posits here today. I am frank to say that there is such a shift in position that occurs with respect to this petition that I am not sure just what I am called upon to respond to. In the Lower Courts we were talking about waiver. The petitioner for certiorari talks about the broader provisions of the Securities law prevailing over the narrow provisions of the Banking Act or can they co-exist and then in the reply brief we get a completely different --
Warren E. Burger: We will resume there at 1 o' clock. Mr. Gates.
Samuel E. Gates: Thank you Mr. Chief Justice.
Warren E. Burger: Mr. Gates you may pick up where you left off.
Samuel E. Gates: Mr. Chief Justice, and may it please the Court. I think when we recessed at the luncheon recess that I was about to say that in Bruns, Nordeman, then Chief Judge Friendly relying upon this Court’s decisions in Borden, Robertson and Langdeau found that there were no basis for implied repeal. Mr. Sands this morning in his brief said and attempted to differentiate at least Langdaeu and Robertson on the grounds that they only have state statutes involved. Now, that precise question was presented to Judge Friendly at the Second Circuit and what I think was a very careful analysis, he rejected that argument, saying in these words, “It would indeed strain language to say that the same verbs are merely permissive with respect to suites in federal courts, although prohibitory as to actions in state courts.” Now, clearly Section 27 --
John Paul Stevens: But did he not go on and say that they were foreclosed in that Circuit by an earlier decision too?
Samuel E. Gates: That is not my recollection --
John Paul Stevens: I think that were two points that he made.
Samuel E. Gates: I will stand corrected if I am in error. Clearly Section 27 does not by its express terms repeal Section 94, nor did Congress say as petitioner has asserted in his reply brief that enacting the 34 Act and I quote, “Congress intended that a National Bank in the Securities’ case could be sued in certain, specified additional Act districts.” Petitioner admittedly get no help from the legislative history. He has acknowledged this morning that he can make only an implicit argument. What he argues that the two statues can co-exist, but the principal thrust of his opening argument seems to be that the implied repeal of Section 94 can be found, because the broad public interest at the time of the enactment of Securities Act required it. The 1934 Congress was consumer concerned that the 1934 Act was meant to supersede any earlier conflicting statutes. But suffice, we are able to ascertain nothing supports these assertions except the (Inaudible) of counsel. But they go even farther at page 16 of the opening brief and they say, “Congress' silence evidences its intent in 1934 to impose the venue provisions of the 1934 Act on all concerned.” We can find no case from this or any other court, which supports the thesis that silence, will support implied repeal. However, as Mr. Sands has acknowledged this morning, the SEC in its brief makes a completely different argument, saying that the adherence to the decisions of the Second and Ninth Circuits would frustrate the policy of the ‘34 Act and would have an adverse effect upon the enforcement activities of the commission. I would remind this Court that the 1934 Act has been in effect for 42 years, yet the commission in its brief does not cite a single instance where a resort by a National Bank to the provisions of Section 94 as evinced upon or interfered or adversely affected the Commission’s enforcement activities. The sole justification advanced in support of this thesis is that the Commission may be unable some day to join some National Bank in some unidentified future enforcement procedures. An argument was made just ten years ago, before the Southern District of New York in an action entitled General Electric Credit Corporation against (Inaudible), where the Commission again filed an amicus brief. The Department of Justice representing the Controller of Currency took an opposite point of view. Judge Tanny made a very careful survey of the situation and he came to the conclusion that there was nothing to support the conclusion of implied repeal. Now, in somewhat different context, but I submit a similar situation, Mr. Justice White in writing for this Court said in Mercantile National Bank, that this was a problem for Congress to consider. It was not a problem for this Court. One would have thought had been in fact an interference with the Commission's enforcement activities during the last 40 years that they would have gone to Congress and sought help. They have not been reluctant to do so in the past, but they have not done so here. Whatever maybe the speculative views of petitioner as to the intentions of Congress or whatever the SEC believes are the controlling policy considerations. We have been unable to find any support in any decisions from this Court, which will sustain an argument for implied repeal. To the contrary, this Court consistently taken the view that absent a waiver by a bank, the Section 94 mandates that all transitory actions shall be brought only in the district where the bank is established. In order to sustain implied repeal, there are two cardinal precepts as we read the cases, which must be undertaken and established by the petitioners. One; there must be a clear and manifest intent to repeal and two; there must be a positive repugnance or an irreconcilable conflict. We find neither of those present in this situation. There is nothing to support in our judgment, clear and manifest intent to repeal. In an effort to buttress the arguments of the petitioner and its own arguments, the SEC in its brief refers to the report of Senator Fletcher of the Senate banking and currency committee and says that this sustains the position. I submit that the Fletcher report is completely irrelevant to this arguments. It was not submitted to the Senate of the United States until after the 34 Act had become law and it made no recommendations of any kind with respect to immediate legislation. Now, certainly at the time that the 1934 Act was adopted, Congress was aware and this is conceded by petitioner, of the special status which Congress has granted to national banks, going back to 1864.
William H. Rehnquist: Mr. Gates would it had been sufficient in your view, dealing with the repeal intent, if somebody had got up on the floor of Congress and said that the 34 Act venue provision is broad and we mean it to apply just in its literal language?
Samuel E. Gates: It would have been very considerable assistance Mr. Justice Rehnquist, if we had found something like that, but we have found nothing of that in nature to indicate that there was any real consideration given to this particular issue. It is quite true that the Congress was concerned about abuses which have been developing and existed in the Securities industry, but they were also well aware of the special status of national banks.
William H. Rehnquist: But, if it would have been sufficient instead of get on the floor and say that why is not even more impressive that they used broad, general language in the statute itself?
Samuel E. Gates: Well, I suppose one can make that argument, I do not happen to subscribe to it, based upon the decisions which have emanated from this Court, but certainly, conceptually one can make that argument and I would be lacking in candor if I did not acknowledge it. But, I cannot believe that simply by enacting Section 27 and by silence that it can be properly construed that Congress intended to amend or repeal Section 94, but to petitioner it seems to me at more difficult burden in sustaining implied repeal in that he must show positive repugnance or irreconcilable conflict between the two statutes. And, I submit that petitioner has made no attempt at such a showing. In his reply brief at page 3, he concedes that implied repeal is more difficult to establish, than what he terms co-existence. I think it might have been might be a little accurate if he had said it was impossible, under these circumstances to establish implied repeal. And then, on the next page of his reply brief, that is on page 4, under the heading, the two venue statutes are supplementary and not in conflict. He apparently abandons any effort at showing repugnance and he characterizes this as the major point of his argument. He said this morning there is no reason why they cannot co-exist, a position which is diametrically opposed to that of the SEC, which pep the entire brief that it submitted as amicus in establishing that there was repugnance and a direct conflict. I submit that when petitioner is talking about harmonization of the two statues that you can make them each effective in its own sphere. He is engaged in, if I may use a colloquialism, kidding himself. He asserts that each special statutes is a special grant by Congress to a forum and that more than one statutes applies, a plaintiff has the benefit of both and he can make his choice, that is of Section 27 or Section 94. With respect that I suggest that if that were the law, and in the situation there would be no need for us to be here today. I would suggest also that even if he is correct, the fact that he may make the choice does not mean that he is going to be able to stay in that forum, because Section 1404 (a) of the judicial code is still in the books. It my well be that a defendant can invoke the provisions of that Section. I submit that petitioner is really not asking for harmonization. He is asking for an exception, an implied repeal Section 94, where Securities Act law violations are charged and he would equate such exception to that exception recognized by this Court with respect to purely local actions in Cassey against Adams (ph). As I have indicated and as Mr. Sands agrees, the Commission that is not on the Court with petitioner's view is that the two statutes can co-exist. Rather he argues that the two venues statutes are in direct and irreconcilable conflict and the Section 27 supersedes Section 94. It says that they are repugnant in both their policies and their practical effects. However, he does concede that if Section 94 prevails then bank can be sued only in Boston. It seems to me that by making such concession, it is an overt admission that the Exchange Act can be made to work against the bank in Boston. Now, in attempting to establish repugnance, the Commission relies on two cases decided by this Court only last June. Gordon against New York Stock Exchange and United States against NASD. He argues that Section 94 has been impliedly repealed by Section 27, because such repeal is necessary in this case to make the federal record choice scheme work in the Securities industry. In that regard, it seems to me that the Commission overlooks Silver against the New York Stock Exchange, which says that if there is repeal by implication, it will be granted only to the extent necessary to make the act work and then, only to the minimum. But, those two cases if the Court please, I submit are distinguishable. In each of those cases the requirements of implied repeal had been clearly satisfied. In order to make the regulatory scheme work as envisioned by Congress with respect to fixed rate commissions and with respect to the sales and distribution of mutual funds, this Court held that the anti-trust laws have to give way. There was no way to reconcile the restrictive agreements, which were developed in the Securities industry with the anti-trust laws, the scheme that been envisaged by Congress. But, there is nothing in the case at Bar, which makes these holdings opposite. As I said earlier the substantive provisions of this law can work in Boston as well as they can in New York. The bank is not immune from the terms of the securities laws nor is it exempt from potential liability that violates the terms. We say only that the issue whether it violated the term should be determined in the District of Massachusetts rather in the District of New York.
Byron R. White: Has there been some case in this Court construing the word located in Section 94?
Samuel E. Gates: There is Mr. Justice White, but I am frank to tell you the name of it escapes me.
Byron R. White: Do you think it is actually been decided here that located means the place of its incorporation?
Samuel E. Gates: No, Your Honor.
Byron R. White: What does it means then?
Samuel E. Gates: I understand that located equates itself to what I would term what might be the principal place of business, if you talk about it in terms of general corporate law. Whereas established which is the word which is used with respect to a national bank, being sued in a federal context I understand it means the place where its charter says that it is established, the home office.
Byron R. White: But, it says that the or in any state county or municipal court in the county or city in which the said association is located?
Samuel E. Gates: That is correct Mr. Justice White, but as I interpret the statute, as I have understood from the decisions from this and other courts, the word locate relates itself to actions, which are brought in state courts and that is where the bank must be located. Whereas you are talking about actions in the federal court, the word establish is used.
Byron R. White: What if this action has been brought under state law in a state court?
Samuel E. Gates: Well, then under you Honor’s decision in Langdeau I do not think we have any problem.[Laughter]
Byron R. White: Well, I know, but that case did not focus on location, did it?
Samuel E. Gates: Well, there were 145 defendants in that action of which two were national banks and in an opinion written by Your Honor you said that they had to be go to another (Voice Overlap).
Byron R. White: The big issue in Langdeau is whether it was exclusive, whether that venue provision was -- whether the word may must --
Samuel E. Gates: That is quite true.
Byron R. White: And, it did not really go to the question what the meaning of located was?
Samuel E. Gates: That is also correct.
Byron R. White: Well, so again I ask you, do you know of any cases that construes it?
Samuel E. Gates: I have to tell you I do not.
Byron R. White: Okay, thank you.
Samuel E. Gates: Thank you, Mr. Justice White.
Warren E. Burger: (Inaudible)
Samuel E. Gates: It has -- I am sorry Your Honor, thank you very much.
Warren E. Burger: Thank you gentlemen. The case is submitted.


Earl Warren: Number 893, Caryl Chessman versus Harley O.Teets.
William O. Douglas: Mr. Davis, are you ready?
George T. Davis: Yes, Your Honor. May it please the Court, colleagues from California, my associate. I'm representing, petitioner, Caryl Chessman in this matter together with Ms. Rosalie Asher. This is a petition for a writ of certiorari and we are here today on a hearing having been granted. The petition was directed to the Ninth Circuit Court of Appeals who had affirmed the judgment of the United States District Court in California, denying a petition for a writ of habeas corpus which had been filed by Caryl Chessman. The question as framed by this Court in effect is whether under the circumstances of this case, the failure of the trial court in Los Angeles at the time of the original trial and thereafter, whether the failure at the time of the settlement of the trial record by that Court to allow Mr. Chessman or counsel for Mr. Chessman to be present at settlement proceedings was of such a nature as to denying him due process of law under the Fourteenth Amendment to the Constitution of the United States.
William O. Douglas: Wasn't that the -- their question was the same one that was here in 1950?
George T. Davis: At that time, I think the petition raised that question but this Court at that time sent the case back, I believe.
William O. Douglas: We denied certiorari.
George T. Davis: Denied certiorari. That is correct, sir.
William O. Douglas: But wasn't that single question presented on a petition?
George T. Davis: Not that single question. There were several questions presented and I think the question of fraud was the fraudulent connivance by the Judge and by the district attorney and by the court reporter in presenting a spurious and false record were used on appeal.
William O. Douglas: That was later -- that was later I think. I think this -- this question is presented in the summer of 1950 to this Court?
George T. Davis: Well, that may be. I was not his counsel at that time and it could be.
William O. Douglas: Yes.
George T. Davis: It could be.
William O. Douglas: It was on a petition for a certiorari to denial I think of the writ of habeas corpus which got to the --
George T. Davis: That was the --
William O. Douglas: -- question of jurisdiction.
George T. Davis: -- that was the matter before the Court at that time.
William J. Brennan, Jr.: Do you say Mr. Davis that he was denied the right to have counsel at the -- present at time with the settlement proceeding?
George T. Davis: Yes, Your Honor. That's our contention and we will go on.
William J. Brennan, Jr.: Meaning as a -- as a fact?
George T. Davis: As a fact, he did not have counsel at those proceedings.
William J. Brennan, Jr.: No, but was he offered an opportunity to have counsel?
George T. Davis: He was not offered an opportunity to have counsel. His repeated request that he'd be represented or that he'd be present at said proceedings were ignored or denied.
William O. Douglas: But he -- he expressly waived counsel at the trial, didn't he?
George T. Davis: At the trial itself. At the original trial at Los Angeles, he waived counsel.
William O. Douglas: He conducted his own defense?
George T. Davis: He conducted his own defense. But he did not waive counsel subsequently in the light of the unusual and unprecedented circumstance that took place with the death of the court reporter.
William O. Douglas: Did he ask that counsel be appointed to represent him in -- in this matter of the record?
George T. Davis: He did not ask that counsel be appointed. He asked that he be allowed to represent himself and he acted in making such request on representations which had been conveyed to him at the prison at San Quentin, representations of both the Judge and the district attorney that he would be allowed to be present in Court at the settlement proceedings. It was not until the proceedings were terminated that he discovered that he was not allowed to be present for himself. (Voice Overlap) --
Felix Frankfurter: If you were to read and if you understand it accurately the exact term in which this Court granted certiorari, there wouldn't be need of all these discussions. Because the terms of certiorari were whether there was a violation of the Fourteenth Amendment in that, he was not represented in person or by counsel designated by the state court in his behalf.
George T. Davis: That is correct, sir.
William O. Douglas: It is a very different thing that he was refused the presence of counsel of his selection.
George T. Davis: Yes, Your Honor.
William J. Brennan, Jr.: But I was interested in knowing whether he had requested counsel to represent him.
George T. Davis: He -- no. He did not specifically request counsel. He filed an affidavit or filed a motion, rather, with the trial court asking that he'd be allowed to be present so that he could participate in the discussions and contribute his memory of what had happened to the memories of all the others who were being asked for their memories.
Felix Frankfurter: And that's the only question that was determined by the Court of Appeals.
George T. Davis: That's right. That question --
Felix Frankfurter: And therefore, I call attention to the exact terms in which we asked audience or allowed audience because that brings out plainly enough. It wasn't his presence or his designation or his selection of counsel but whether implied he'd have the duty on the part of the court to designate counsel. That's why it was framed that way, plainly enough.
George T. Davis: Now, may I just discuss what I deem are the pertinent circumstances that relate to that particular question as to -- as phrased by the judge and as, of course, presented by the Court. This man was arrested and tried in 1948 just about exactly nine years ago. On May the 21st of 1948, the jury rendered its verdict. There were two death sentences among the others. He was charged, he was tried on -- before the jury on 18 counts of various and miscellaneous crimes, not the same but at different times and different places, all 18 before the same jury. Acquitted on one, convicted on 17, sentenced to death on two. He was sentenced to death for the kidnap-robbery, under the kidnap-robbery statute. He did not kill anyone in connection with these offenses. There was a bodily harm aspect to one of the statutes which if the jury found there was bodily harm in the kidnap-robbery, allowed them to sentence to death. I might say parenthetically that statute was amended in 1951 and is no longer the same as it was at that time. Now, the verdict of the jury came in on May the 21st of 1948. Subsequently, on June, notices of motions for appeal and so forth were filed. But on June the 23rd of 1948, the court reporter who had reported the trial died of a heart attack. It was discovered almost immediately that he had not completely transcribed the notes of the trial. That approximately two thirds of the notes of the trial had not been dictated by the reporter and remained in his original notes. A -- a motion was made by the defendant who was still representing himself in propria persona for a new trial under a civil statute which -- which applied to this type of case and provided that the Court would have the power where the -- a court reporter died to grant a new trial. There was no such statute in existence in California nor is there today applicable to the case wherein a criminal proceeding, the court reporter should die before the notes are transcribed. Under California law, just to pass it because it's one -- another of the circumstances, the appeal is mandatory. It is not a matter of right in the sense that we sometimes think of it, but it is mandatory in death sentence cases. And the appeal, the mandatory appeal is required to be taken on all the entire record of the proceedings in the court below. According to the rules of the Judicial Council in California, there are several methods of perfecting a record. One method of perfecting the record and the method which was adopted in this case was a method which could not be adopted as it is stated in the rule because of the death of the court reporter. Because the rule provides that under that method, the court reporter shall transcribe the entire record and the court reporter shall certify to the accuracy of the record and shall file it. Of course --
Felix Frankfurter: May I -- may I make that explicit?
George T. Davis: Yes, Your Honor.
Felix Frankfurter: Am I right to infer from that that under your procedure in California, the trial proceedings could not be cast in narrative form?
George T. Davis: That is correct, Your Honor. There is a proceeding which is the choice of --
Felix Frankfurter: I mean in -- in murder cases.
George T. Davis: That is right, Your Honor.
Felix Frankfurter: The deal is automatic and that has to go to the Supreme Court of California, a stenographic account of what took place in the trial court.
George T. Davis: Certified, too, by the reporter, under the rules of the Judicial Council.
Felix Frankfurter: I mean you have the agreement is between counsel of omitting anything or putting it classic, in narrative form?
George T. Davis: There is a statute 36, section 36 of the rules of the Judicial Council allows the -- the convicted person to choose a form of settlement similar to that which you are speaking about. But this is entirely a choice of the appellant under the rule.
Felix Frankfurter: But if he stands and said, I want every word of what took place from the time the jury who examined on the (Inaudible) is entitled to that.
George T. Davis: That is our position, Your Honor. And that is the law.
Felix Frankfurter: (Voice Overlap) -- I'm asking if that ought to be susceptive of all the -- of a --- a categorical answer.
George T. Davis: It is. And that is the law. Now, in this connection, the judge practically, immediately recognized that the circumstances that had developed by reason of the death of the reporter created the situation where it was -- under which it was impossible under California law to perfect the appeal in accordance with the rules of the Judicial Council. And at the -- at a hearing on the 25th of June, two days after the death of the court reporter, Judge Fricke, the trial judge said in effect that an appeal would be perfected within the limits or to the best extent of human ingenuity. He indicated that he saw no reason at that time why the report couldn't be transcribed and then stated in so many words that he would order an appeal to be perfected, an appeal record to be perfected to the extent of human ingenuity, and recognized in so many words in that order that an appeal could not be perfected in accordance with the mandatory requirements of California law.
Felix Frankfurter: Now, may we assume, Mr. Davis, that in everything you will say regarding the circumstances of the kind of record that were adopted in the Supreme Court, whatever you will be laying before the Court will be derived from the record before Judge Goodman in the District Court?
George T. Davis: Yes, sir.
Felix Frankfurter: And such other documents regarding the case of which the Court may take judicial notice.
George T. Davis: You may assume that. I will not deviate one iota that from that record.
Felix Frankfurter: (Voice Overlap) -- And when you -- on some these things that they become essential not to paraphrase what was said in Judge Goodman's thought, the thought was actually in the record.
George T. Davis: Yes, Your Honor. I'm prepared to do that, I think. Now, to pass over this space a bit, the next thing that happened was that some steps were taken. I'm speaking, now, of those things which took place before the hearings in Judge Goodman's Court and which are a matter of record before this Court. The Judge then called the attention of the district -- the assistant district attorney, Mr. Leavy to the situation since they were both in open court and instructed Mr. Leavy to take some steps, to see whether the record could be put together within the limits of human ingenuity. This was in June of 1948. Some proceedings were then begun by Mr. Leavy to obtain a contract or to obtain permission to employ a court reporter who could -- who would be able to transcribe Mr. Perry, the deceased reporter's notes. The proceedings to employ a reporter are -- are pretty well set forth in the hearings before the District Court or the -- that is the circumstances of what happened. However, I wish to call Your Honor's attention to the fact that in September of 1948, a Mr. Persons (ph) who was the head of the Court Reporter's Association in Los Angeles County wrote a letter which appears in this record and which was forwarded to the Court and brought to the attention of the Court and the district attorney that court reporters in Los Angeles Country had attempted to decipher the deceased reporter's notes. And that in his opinion, those notes were undecipherable and that as a result, the making of a contract for some third party reporter to decipher these notes was not a very proper thing to do because in the opinion of the Court Reporter's Association, it was not a practical or feasible thing from the point of view of actually deciphering the notes. Now, that letter which was sent by Mr. Persons (ph) is in the files and the records of these proceedings was brought to the attention of the Court who stated in the District Court that he had familiarity with that letter. Now --
Speaker: Was that letter before Judge Fricke?
George T. Davis: Yes, Your Honor.
Speaker: (Voice Overlap) --
George T. Davis: I'm speaking or that. That was sent to the Superior Court. Subsequently, this is now -- we're up now to -- to September of 1948. Subsequently, Mr. Leavy obtained the services of a Mr. Fraser, a Stanley Fraser, who was a court reporter. Mr. Leavy obtained the contract from the City of -- from Los Angeles; to employ Mr. Stanley Fraser at what has been estimated at three or more times what would be paid to an ordinary court reporter doing this particular kind of work. Mr. Leavy instructed or apparently instructed Mr. Fraser to go ahead and gave him the notebooks. And he was instructed to proceed with the transcription of these notes. Now --
Felix Frankfurter: Was the -- was the consent of Judge Fricke required for that?
George T. Davis: Yes, it was, Your Honor. And it was obtained. But Judge Fricke was never told that Mr. Leavy was a -- Mr. Fraser was a relative by marriage of District Attorney Leavy. Judge Fricke testified in the District Court proceedings that he did not know that there was any relationship between these two people and that it had never been brought to his attention either by Mr. Leavy or by Mr. Fraser. Now, the two gentlemen proceeded to go to work on the notes by a -- a method which Mr. Fraser testified, was one that he had never used before, and by a method which, by merely the stating of it, must undoubtedly appear as one of the most unique methods imaginable for the preparation of a record of this type. Mr. Leavy told Mr. Fraser to prepare a rough draft of everything that he was going to transcribe. So that Mr. Leavy and Mr. Fraser could look over the rough draft and to quote Mr. Fraser in the District Court hearings so that he could get Mr. Leavy's cooperation or corroboration, and so that he could have the benefit of Mr. Leavy's memory in connection with the preparation of the final draft. Mr. Fraser testified in the District Court proceedings that this kind of conduct went on between himself and Mr. Leavy. That they also obtained a -- a -- some notes from Judge Fricke which were turned over to them so that they might also use these notes in order to refresh their respective memories and in order to perfect in the final analysis what they submitted as a trial transcript.
Harold Burton: Do you claim any unfairness on what they did?
George T. Davis: We certainly do, Your Honor. We had claimed it was unfair I would -- I'm going to discuss that. Now one of the --
William J. Brennan, Jr.: Did Chessman know any of these things whether or not --
George T. Davis: Sir?
William J. Brennan, Jr.: Did Chessman know any of these things whether or not --
George T. Davis: Well, Chessman had been informed indirectly. Now, he -- he was removed to San Quentin Prison in July of 1948. Now, he had been informed in the prison that there was some procedure going to be used by which what they called a -- a raw transcript was going to be prepared before a final transcript was prepared and he sent a note or a letter. I believe it's in the form of a sworn statement to the -- to the Superior Court asking in connection with such raw transcript as -- as he put it asking that he be furnished a copy of that raw transcript. We have -- I have here and it's in the files of this case, it was filed September 13th, 1948 in the Superior Court of the State of California. It's a handwritten, hand-printed document. It's an affidavit in support of a request for prompt delivery of the trial record and meet, therefore, and it's by Mr. Caryl Chessman who says in effect, I -- I won't read it all, that he wants the -- the reporter's transcript delivered to him. And he wants a copy of the trial record. He gives his mailing address. He says he wishes the reporter's transcript be delivered properly after completion by the reporter. So that if necessary, he can make, edit corrections.
Speaker: Well, that -- that inference that's been drawn from that language as you refer to is that he didn't know that the reporter was dead.
George T. Davis: Oh, he knew the reporter was dead, sir. He was in Court on the 25th of June, two days after the death of the reporter at which time he made a motion to vacate the judgment on the grounds that in view of the death of the reporter, it would be impossible to perfect an appeal under the California law applicable to mandatory appeals.
Felix Frankfurter: When was he sentenced, Mr. Davis?
George T. Davis: He was sentenced on the 25th of June.
Felix Frankfurter: This is on a sentencing day?
George T. Davis: This was on -- at -- at that very same time.
Felix Frankfurter: Now, would you be enough to answer and declare what I refer to be the implications of Justice Brennan's question? Will you state in detail, how, what knowledge and how the knowledge of -- he knew that the official reporter or the court reporter was dead. How -- what knowledge and how that knowledge was brought to the attention of Chessman, namely, the selection of Fraser, the -- the recommendation of Fraser to Judge Fricke, Judge Fraser -- Judge Fricke's action thereon and the subsequent events relating to the final deposit of the free-derived record before the Supreme Court. I take it that was behind that question. And I think that he claimed the report.
George T. Davis: I -- I --
Speaker: That was --
George T. Davis: All right, sir. I'll try to do that. The -- the situation was this. Of course, Mr. Chessman was in Court on the 25th of June, two days after the death of Perry and was present at the -- that's the first reporter and was present at the time that Judge Fricke made the statements in open court that a transcript would have to be put together to the -- within the limits of human ingenuity. Mr. Chessman, at that time and continuously thereafter, called the attention of the Court by affidavit and by motion and by various documents of the fact that first, he protested that such a record could not be put together within California law. Under the law, he denied that such a record was a --a permissible record, under California law.
Speaker: Well apart from that, what are the facts as to what he knew about what the Judge and Fraser and Leavy were doing --
George T. Davis: He didn't --
Speaker: -- to compare this to our record?
George T. Davis: Most of what he knew about that, he didn't actually know about until the District Court proceedings in San Francisco when these things were brought out on the cross examination of these particular witnesses.
Felix Frankfurter: You mean last year?
George T. Davis: Last year. For instance, Judge, if I may answer you very specifically. Mr. Chessman didn't know until last year that in the course of preparing the record, that Mr. Leavy and Mr. Fraser not -- went to the homes and the offices of two police officers who testified in the original trial and consulted with the police officers about their testimony in the trial which was vital testimony, which had to do with an alleged confession by Mr. Chessman.
William J. Brennan, Jr.: Well, when did he first learn that Fraser's employ and appointment?
George T. Davis: He learned of Fraser's appointment at or about the time that Fraser was appointed.
William J. Brennan, Jr.: And that date is when?
George T. Davis: That was back in 1948.
Felix Frankfurter: Now, by grapevine or by court notice?
George T. Davis: This was by grapevine. He was not notified about this. Then of course, he was aware of Fraser's appointment from time to time as proceedings went on because Mr. Fraser and Mr. Leavy filed successive applications for extensions of time within which to file this report. It -- it took them something like 18 months before they were able to file a transcript.
William J. Brennan, Jr.: Well, did he have copies of these applications for extension of time, for example?
George T. Davis: The applications for extensions of time, he was furnished copies of those applications.
William J. Brennan, Jr.: But you're telling us that he never received any official or formal notice of Fraser's employment?
George T. Davis: Well, if I said that, I didn't mean it in that way. He received these applications. It was not --
William J. Brennan, Jr.: So, when did he learn of Fraser's employment, and how?
George T. Davis: Well, I'm -- I will say this. That I am sure that he learned of Fraser's appointment sometime in 1948. And I will certainly concede that it was brought to his attention in some official manner.
William O. Douglas: When did he write the letter about him getting a copy of those records?
George T. Davis: This letter was written --
Speaker: Does he say that?
George T. Davis: No. This document that we're referring to here is dated September the 13th, 1948. And I have called your attention for the fact that there was a letter written in the same month by the head of the Court Reporter's Association but not written to Chessman. That was written to the Court. That's not Harry (Inaudible) letter stating the notes were undecipherable.
Felix Frankfurter: But was that a spontaneous letter from the Reporter's Association? What do you (Voice Overlap) --
George T. Davis: Well, apparently yes. It apparently was because --
Felix Frankfurter: Apparently, I'm -- I'm trying to stay close to the records.
George T. Davis: Yes.
Felix Frankfurter: Does the record show whether this case sua sponte of their report or were they invited to make some (Inaudible)
George T. Davis: This came of their own accord.
Felix Frankfurter: Did Chessman take the stand at the main trial?
George T. Davis: At the main trial, yes, he did.
Felix Frankfurter: Now, how much was he up on the stand, how long? Do you happen to know?
George T. Davis: I don't' know the exact number of days that he was on the stand.
Felix Frankfurter: And that's in the examination and cross examination? With what's on the record, is it?
George T. Davis: Yes, that's right. And I would say that he was extensively examined.
Felix Frankfurter: Now, can you tell whether -- what was the day with the original reporter?
George T. Davis: Perry?
Felix Frankfurter: Perry. Did Perry transcribe the -- the examination and cross examination of Chessman himself?
George T. Davis: Yes, he did.
Felix Frankfurter: (Voice Overlap) -- of the portion that Perry --
George T. Davis: Yes, that is right. And --
Felix Frankfurter: (Voice Overlap) (Inaudible)
George T. Davis: Yes, that is correct.
Felix Frankfurter: So that's -- that was not disputed. That that was transliterated by the -- transcribed by the courtroom, is that right?
George T. Davis: It was transcribed by him. Yes, sir.
Felix Frankfurter: Now, any other of --
George T. Davis: Excuse me, Judge. So, let me be sure I'm correct saying the same thing. It was transcribed subsequently by Mr. Fraser.
Felix Frankfurter: That is not what I meant. I didn't make myself clear. This is Perry, the stenographer who took down the examination and cross examination of Chessman, did he transcribe?
George T. Davis: Yes. No, he did not transcribe it. He took it down in the notebooks.
Felix Frankfurter: So, Fraser has done it?
George T. Davis: That is right, Your Honor.
Felix Frankfurter: Yes. Did -- did Chessman have a chance to go over his testimony to see where the phrase is correctly transcribed?
George T. Davis: Yes, he did.
William O. Douglas: But he had the chance to go to the whole testimony.
George T. Davis: He had a chance to go over the whole testimony and sent in something like 180 corrections and he did. In answer to your question, he did.
Felix Frankfurter: Is there any correction as to his own testimony?
George T. Davis: He complains and contends from the beginning.
Felix Frankfurter: I'm not -- I'm talking about his testimony --
George T. Davis: Yes.
Felix Frankfurter: -- not the rest of that. I know all about that. But I do not know whether Chessman found, claimed they were inaccurate.
George T. Davis: He did, sir.
Felix Frankfurter: It was transferred to -- as of his (Inaudible)
George T. Davis: He did, sir.
Felix Frankfurter: And as to his cross examination.
George T. Davis: He did, sir. And his claim was that the prejudicial remarks of the district attorney which were also combined in by the judge all during that period of his testimony were omitted completely or glossed over in the report that was finally submitted by Fraser. So that his contention that he had been prejudiced by snide and nasty and indirect remarks all the way through by both -- by the district attorney and by apparently the approval of the judge was completely missing.
Felix Frankfurter: So that he claimed imperfections in the transcriptions by the posthumous and before the stenographer as to his own testimony, is that correct? He claimed that there were imperfections in what they --
George T. Davis: No.
Felix Frankfurter: -- in the words they put into his mouth or what they omitted, what took place --
George T. Davis: He claims there were imperfections in the Fraser --
Felix Frankfurter: Version --
George T. Davis: -- version of what --
Felix Frankfurter: That's the --
George T. Davis: -- Perry allegedly put down or presumably put down.
Felix Frankfurter: Did he have what the defense witnesses apart Chessman?
George T. Davis: Yes, there were.
Felix Frankfurter: How many?
George T. Davis: I don't remember the number.
Felix Frankfurter: If (Inaudible) once with the defense appointed?
George T. Davis: There were.
Felix Frankfurter: Now, after they claimed the imperfection, did any of those relate to the defense witnesses other than Chessman?
George T. Davis: I can't say that. I can't say yes or no as to that specifically because this situation reached the point were Chessman in San Quentin Prison, now a year and a year and a half after the trial was incapable, we claim and contend, was incapable sitting up there of recalling everything that had taken place with reference to everybody in exact detail. He was doing the best he could.
Felix Frankfurter: I'm not -- I'm going beyond him. I'm going as to other witnesses. You stated that the -- the district attorney and the new Fraser personally examined witnesses for the prosecution in order with the view to checking up or completing it over there as they examined witnesses to the prosecution to perfect transcriptions of Perry's notes.
George T. Davis: That is correct. That is correct, Your Honor.
Felix Frankfurter: Did they go to any of the defendant's witnesses?
George T. Davis: They did not.
William O. Douglas: Well, now, all that is held against him though, isn't it?
George T. Davis: Sir?
William O. Douglas: What they're finding against Chessman, on those things? On the discrepancies as to his own testimony that that all came out at the trial did it not? I mean it's here.
George T. Davis: At the -- in the District Court proceeding? Well, Your Honor, when we got to that subject in the District Court proceeding before Judge Goodman, we were told practically from the beginning that there was only one issue that Judge Goodman cared to hear about and that was the issue of fraudulent connivance.
William O. Douglas: Well that's -- that was what we sent to him to hear.
George T. Davis: That is -- that is correct. That was the nature of the order that came down. Now, when we tried to get into the question of the inaccuracies, even to the extent of one inaccuracy, the Judge shut it off and said that it was not an issue before him, that he would not consider the matter, would not allow any discussion or any interrogation on it and then took the position that he didn't think the Supreme Court had ordered him to do it. But if it had, he wouldn't do it anyhow and said that if there were 75% inaccuracy in the actual record, he wouldn't consider it a matter of due process. Now our position, I must -- I'd like to say this --
William O. Douglas: Can this be all -- can this counsel by the Supreme Court of California back in 1950?
George T. Davis: Well, this was in the -- you're -- you're -- that this matter has been up before the Courts many times in many forms. But our position --
William O. Douglas: What I mean is to what actually happened in the report in 35 Federal California second, page 455.
George T. Davis: That's right and that of course --
Felix Frankfurter: Does that foreclose you here?
George T. Davis: We do not think it does.
William O. Douglas: But we can look to that to see what happened, can't we?
George T. Davis: You can to a certain extent because at that time --
William O. Douglas: According to that report, the transcript as reconstructed was sent to Chessman. Chessman objected, made objections.
George T. Davis: That is right.
William O. Douglas: Is that right?
George T. Davis: That is correct.
William O. Douglas: Some of his objections were sustained, is that right?
George T. Davis: That is right.
William O. Douglas: And some were not?
George T. Davis: That is right, sir. And he asked that he be brought to the Superior Court. He specifically requested that he be brought personally to Court so that he might contribute his thinking and his memory and he might participate in the page-by-page discussion of the transcript because he allegedly stated that he could not, at that distance and at that time, without that further help be expected to remember everything that had happened at the trial as to which he complained insofar as the transcript was concerned.
Speaker: Did the California Supreme Court have before it the relationship between the stenographer Fraser and the district attorney?
George T. Davis: It did not.
Speaker: Did it have before it the interviewing of witnesses by the stenographer and the district attorney in Chessman's absence?
George T. Davis: It's definitely not and not the interviewing of the police officers.
Speaker: Did Chessman know it that at time?
George T. Davis: He did not.
Felix Frankfurter: You said a minute ago that those facts had not appeared and not become a matter and not and put into evidence on the (Inaudible)
George T. Davis: That is right Your Honor. Now --
Felix Frankfurter: The record would bear you out on this?
George T. Davis: Let me just limit this. Chessman knew before that of the relationship between Fraser and Leavy. He had heard that before that and had investigated and had attempted to bring that matter up. But he did not know about the going out of Mr. Fraser to see these police officers in order to obtain their memory of what their testimony was before he transcribed their particular portion of the notes. That was brought up in the District Court hearing for the first time and it was known to Chessman then for the first time. Now there's another --
Hugo L. Black: What did Judge Goodman say about that?
George T. Davis: Judge Goodman didn't consider that that was within the issues that he was called upon to decide. And of course, we took a strong position otherwise because it certainly seemed that if you're going to prove fraudulent connivance, you'd have to prove it by facts and by circumstances, and that this certainly was the most aggravating type of fact and circumstance that could come forward in a hearing but he did not consider that that was a matter within his purview. And therefore, he passed it over and as the appellate court said in the Court of Appeals, he made no findings whatsoever on one of the subjects here, of course, which is the subject and issue before this Court. That is the -- whether or not Chessman was denied due process by not being allowed to be there. But on this matter, the Judge merely -- I would say this respectfully. The Judge effectuate -- effectively hamstrung counsel insofar as extending the inquiry on this subject is concerned because he did not consider that it was within the issues.
Speaker: Well, now do you really think that that's a fair characterization of that record? I have read this record and I recognize what you say that he didn't -- Judge Goodman did make these remarks that even 75% was wrong, and so forth?
George T. Davis: Yes.
Speaker: But I fail to find in the record anything that is a practical matter, slapped you off or prevented you from proving almost anything that you have to prove.
George T. Davis: Well, here was --
Speaker: Am I wrong about it?
George T. Davis: I think you are, Your Honor. And I'd like to state to Your Honor that where and how I think you're wrong. Never in proceeding in the trial court before Judge Fricke, never was a question asked of Fraser or attempt made by anyone to determine out of Fraser's mouth whether he could transcribe or decipher these notes. Now, when an attempt was made before Judge Goodman to find out from Mr. Fraser if he could read even one page of these notes, if he could read even one line of these notes, decipher Perry's notes, Fraser began by stating that he couldn't and then when the inquiry was sought to be prosecuted to the extent possibly of developing and demonstrating to the judge that Mr. Fraser was incapable of deciphering these notes, it was shut off. And the judge said it had absolutely nothing to do with these proceedings or the issue and we were not allowed to ask that question which would go into that subject. Now, I believe --
Speaker: I thought -- I thought the record on that was that Fraser said that he couldn't sit down and read them in the presence of the judge. He had to study them.
George T. Davis: That's right, he did say that.
Speaker: And he'd offered to take them home with him and do come back --
George T. Davis: Right.
Speaker: -- with whatever portion you wanted deciphered and come back in the morning and testify what it was and you said you weren't interested?
George T. Davis: Well, that is substantially --
Speaker: Am I not right?
George T. Davis: That's correct and when it reached that point. But the -- the point is that prior to coming to that point, Mr. Fraser was asked to go through these notes. He was pointed -- he was shown in these notes in certain of the books in these notes pencils, interlineations which were not -- which were his and which were not the original reporter's, they're penciled short-hand interlineations, they're interlarded with those interlineations as one can see from looking at them and an attempt was made and the charge was made that Mr. Fraser was incapable of transcribing and deciphering certain portions of these notes. Now, we got into quite a hassle with the judge. It -- it developed into a -- a pretty sharp situation and then it reached the point where we were talking about whether he could transcribe two or three lines and he would take all the rest of the -- he had to take them home with him and spend the night in order to be able transcribe those lines. And that is the point where we came to the situation you have described. Now --
Hugo L. Black: May I ask you a question?
George T. Davis: Yes, Your Honor.
Hugo L. Black: I didn't quite understand when you replied to Justice Frankfurter.
George T. Davis: Yes, sir.
Hugo L. Black: And he asked you if Chessman proclaimed that his questions and answers had been improperly transcribed. I understood you to answer that he proclaimed very much that the -- the statement was made with the prosecuting attorney there that's been left out?
George T. Davis: That is right, sir.
Hugo L. Black: Did he complain that the questions and answers had been improperly transcribed? He complains on that.
George T. Davis: I'll – I'll have to answer it this way. He complained that the meaning behind the questions and the answers and the prejudice that crept in from these remarks had been glossed over in such a manner.
Hugo L. Black: From the remarks. But did he complain that there was an improper transcription of the questions that were asked and the answers that he gave?
George T. Davis: I can't say -- I can't say as to that and I won't answer.
Hugo L. Black: (Voice Overlap) --
George T. Davis: I'd rather not answer to that. I know that his basic complaint was as I have indicated. And that it had been glossed over and smoothed over in such a way as to take all the barbs and all the stings out of the things that had taken place in between.
William J. Brennan, Jr.: Now, you said that he knew of the relation between Leavy and Fraser?
George T. Davis: He had heard that they were related.
William J. Brennan, Jr.: Did he know that before the case got before the California Supreme Court?
George T. Davis: I don't think he did, sir. I think that is a subject that came to his attention subsequently.
William J. Brennan, Jr.: Does the record show us?
George T. Davis: The record shows and I believe that we have -- we have perhaps covered that in our brief but I'm sure that the record will show where he first learned of that relationship. And as a matter of fact, it was -- I'm sure that it was afterwards because I recall that he hired an investigator at some later time to make inquiries about that subject and also to make inquiries about the alleged inebriation of Mr. Fraser and that came sometime after the California Supreme Court hearings.
William J. Brennan, Jr.: So that the California Supreme Court has never officially had from him any complaint based upon the alleged relations between Fraser and Leavy.
George T. Davis: I do not believe so.
Felix Frankfurter: But you -- and you -- you can't be certain as I gather from your answer that you ask him that after the private consultation of witnesses for the prosecution to find out of so many years later or whatever (Inaudible) to find out their recollection of what they testified with the trial. You are unqualified in taking on the use of the Court that that fact had not become a matter of knowledge, proof or knowledge (Inaudible)
George T. Davis: I state that unqualifiedly. I'm positive on that.
Hugo L. Black: No state courts are passing on that one, do they?
George T. Davis: No state court has passed on it.
Hugo L. Black: No state courts are passing on the relationship between the (Inaudible) and district attorney?
George T. Davis: They have not. Now, we have the feeling, of course, in view of that situation that a very damaging thing took place here insofar as this man's rights are concerned. Now, when this matter came up before the District Court, of course, I -- obviously Your Honors are familiar with this District Court record. And it was I think the cast that overlays the record, of course, is the fact that Judge Goodman felt that he was constrained within limits which as he put it had to do with fraud and connivance and that unless the testimony to be abduced was particularly aimed at some actual fraud or actual connivance, he did not feel that he wanted to hear, spend any time on it. Then he said it many, many times.
Felix Frankfurter: As I recall you really (Inaudible) was that of a fair construction by Judge Goodman of our -- the terms of our (Inaudible)
George T. Davis: Well I would -- I would want to say this. That I think that he -- that he construed it within limitations that were not necessarily the limitations even as to the investigation of fraud and connivance, because as I see it in this type of case where that Leavy and the -- and the reporter conducted themselves in the manner that is indicated clearly in this record and where some parts of it were brought to the attention of the judge and other parts weren't. I think that the -- there -- there should have been a little more liberality in construing what amounted to fraud and connivance. However, that would be a matter that would -- it's a matter that was argued out between myself and the judge. And I have to stand, of course, on what he did insofar as the record here is concerned.
Speaker: I'd like to ask you another question.
George T. Davis: Yes, Your Honor.
Speaker: Under the California practice, is there any other case between their (Inaudible)
George T. Davis: We know of -- we know of no other case. We are convinced that this is a case of first impression. We have found no cases in the books where this situation is -- is handled. We feel that it's -- it's without precedent insofar as our research is concerned and certainly insofar as California is concerned. It is a case of first impression, insofar as these facts are concerned. And as you have asked the question.
Felix Frankfurter: Mr Davis --
George T. Davis: Yes, sir.
Felix Frankfurter: I'm asking you and most about -- I hope he recovers, the Attorney General had come to these terms. You said there were two witnesses, two prosecution witness who were privately consulted by Fraser, the -- the substitute and later (Inaudible) in company with the district attorney in order to -- as a result of such private entity to enable Fraser to put down what it is they testified here in Court. Is that right?
George T. Davis: That is correct.
Felix Frankfurter: Now, what I would like to ask you and what I hope the attorney general could (Inaudible) were these from your point of view if you were to take from this Court, were these two witnesses not merely a witness for the prosecution but they -- have they -- were they significant witnesses? Were they important witnesses to the issues at the trial?
George T. Davis: They were, Your Honor because they were witnesses as to an alleged confession by Chessman which he denied at the trial and which he claimed that the trial had been extorted from him by force. These were the very witnesses to the alleged confession. And, of course, from that point of view, they were extremely important witnesses from Mr. Chessman's decision on this case.
Felix Frankfurter: You alleged the confession that the questioning issue came how soon after he was arrested?
George T. Davis: The night afterwards. And allegedly after a terrific beating had been imposed upon him. Now, our -- we -- that perhaps for the purposes of this phase of the proceedings, I must say that although I was warned by everyone to watch that clock and not ask questions, I've completely forgotten the existence of the clock. But our position is such that I think at this stage that we have -- perhaps this sets forth the -- the general -- these facts and circumstances. Let me say that which we think are basically of importance in connection with this contention that we have made here. Now, we feel that -- that our situation as such that Mr. Chessman under these circumstances certainly had a right -- had a right to give to the Court and to give to the preparation of this record his own memory and his own contribution insofar as trying to recall and remember what had taken place. We feel that he had certainly had a right to be allowed to do that. We have that strange situation here in this record where he was -- where we contend that he was misled on that subject by the district attorney who filed an application in the -- or filed an application in the Supreme Court at a time that Mr. Chessman had filed a petition for writ of prohibition. Mr. Chessman was extremely concerned about this matter from the very beginning, and as I say, not only because it didn't conform or couldn't conform with mandatory California law but because he was in -- of the -- the opinion that these notes were indecipherable and could not be deciphered. And in this affidavit which we think played a very important part in this situation, we have by Mr. Leavy, the district attorney an affidavit on file before the California Supreme Court. And if I might say, this affidavit was one of the things before the Court, when they finally came to making the decision in 35 Cal.2d to which you have referred. Here's the affidavit where Mr. Leavy says and it was delivered to Mr. Chessman in the prison. It says that at a time to be later determined the petitioner will have delivered to him in Court the reporter's transcript to be used as a basis of the settlement of the record. At said time, the trial court, the Honorable Judge Fricke will permit the petitioner to make corrections or to correct any inaccuracies and so forth that he may claim in the reporter's transcript. Now, in this -- this had some relevancy, I believe, to two or three questions that were asked. He didn't ask to be represented by counsel because on the basis of this affidavit and he was never told otherwise until after the settlement of the transcript. He assumed that he would be brought into Court. This was a sworn affidavit by Mr. Leavy. At now, and to go back, we take the --
Felix Frankfurter: Mr. Davis, I'm sorry to interrupt you.
George T. Davis: Yes, Your Honor.
Felix Frankfurter: That affidavit preceded the determination of the denial of the prohibition by the Supreme Court of California?
George T. Davis: Yes it did, this --
Felix Frankfurter: That was in – in the proceedings which led to the denial.
George T. Davis: Yes and we --
Felix Frankfurter: (Voice Overlap) -- has to involved now.
George T. Davis: This -- where's this --
Felix Frankfurter: Is that before Judge Goodman? Is that --
George T. Davis: Well, yes, it was. Yes, Your Honor. It's in petitioner's -- its Exhibit 1, petitioner's Exhibit number 1, Jacket number 11. It seems that this Exhibit 1 was broken up into a large number of jackets, and this is Jacket number 11. And it's the -- the affidavit. It's -- it's in connection with the document entitled, respondent's points and authorities and opposition to petition for writ of prohibition, exhibits attached. And that is one of the -- the exhibits that is attached. It's the last exhibit in that jacket.
Felix Frankfurter: Now, if you -- if in fact -- if in fact, the record that's finally considered by -- by Mr. Fraser and Judge Fricke, if in fact the accuracy of that record, that transcription is from the very notes are incontestably accurate, I'm making that assumption.
George T. Davis: Yes.
Felix Frankfurter: You wouldn't be here presenting it as a denial of due process (Inaudible) instead of in Los Angeles, would you?
George T. Davis: Before I answer that Judge, if I'm -- if you'll allow me. May I -- will you please state that question again?
Felix Frankfurter: Assuming that the record was -- was unassailably accurate as Fraser reconstructed it. Assuming it was fully, absolutely accurate, you can't complain of the accuracy of the transcription from the -- from Perry's --
George T. Davis: I understand that.
Felix Frankfurter: -- hieroglyphics.
George T. Davis: I understand that.
Felix Frankfurter: You wouldn't be here, would you merely because the district attorney (Inaudible) to be delivered to Chessman in Court instead of having delivered that as before in prison.
George T. Davis: Probably not. But there is another side to that which I think I must mention. We would -- we would certainly be here if we were allowed to come here to protest whether or not such a record could be provided and could be used under the mandatory provisions of the California law.
Felix Frankfurter: But you -- that's on the assumption that the record is not a true transcript of what took place. That it couldn't be truthfully or accurately be constructed. But when I say you wouldn't be here, I don't think we'd listen long to you to contest that under California law, it must be made up one way rather than another provided there wasn't what you claimed to be an inherent defect.
George T. Davis: That is --
Felix Frankfurter: You're claiming an inherent defect, don't you?
George T. Davis: I -- I agree with that. That is correct. Such a -- as such in the inherent effect as to the -- this --
Felix Frankfurter: Defect.
George T. Davis: -- defect as to destroy its validity. That is correct. That is our contention.
William O. Douglas: That is the fact that he wasn't allowed to be there in person.
George T. Davis: No. That -- that's -- that's on top of it. We claim that he -- that first of all, we claim in answer to the Judge's question or with line – in line of the Judge's position, we claim that this --
Felix Frankfurter: And that's the position I'm trying to barely understand.
George T. Davis: Well, I beg your pardon. In line with the Judge's statements, in order to clarify this, we claim that there was -- that there was and is in connection with this record an inherent defect that it is not a true record. It's spurious, false record as it is --
William J. Brennan, Jr.: Well the -- the --
George T. Davis: -- that it was put together.
William O. Douglas: -- the Supreme -- Supreme Court of California considered that and said that there maybe inaccuracies, but none of them were prejudicial.
George T. Davis: Well, that is right. But we have taken the position. And we have been confronted with that, of course, every way along the line in a proceeding which had nothing to do with the appeal but was -- which was a -- a proceeding prior to the appeal so to speak. The Court made that decision. And, of course, they took the position also that he had no right to be present to participate in the activity. That it was the appellate in nature. And as I recall 35 Cal, they just took the general position that due process did not apply.
Speaker: Who argued -- who argued and represented Chessman on the California, the state court appeal that involved the accuracy of the record?
George T. Davis: On the 35 Cal, I believe that that was done by a written argument by Mr. Chessman.
Speaker: And he had no lawyer?
George T. Davis: He had no lawyer before the Court at that time.
Felix Frankfurter: And he didn't have the facts which you now say is this.
George T. Davis: He did not.
William O. Douglas: And those facts again, are those new startling facts or what?
George T. Davis: Well, basically, the -- the undisclosed relationship between Mr. Fraser that reporter who was obtained and between Mr. -- and this between Mr. Fraser and between the district attorney. And secondly, the complete story of the method by rough draft and by rough draft on top of rough draft between Mr. Leavy and Mr. Fraser before a final transcript was made. And then thirdly, the fact that Mr. Fraser is now revealed to have gone to prosecution witnesses outside of any courtroom or any activity known to any court and had taken up with them their memory of what they had testified to, so that he might perfect and prepare a transcript of their testimony.
Felix Frankfurter: Were there minutes made of the conversation between the district attorney and Mr. Fraser and these prosecution witnesses? Are there memoranda of what they said? Where -- where did he visit, their houses?
George T. Davis: He said that he couldn't -- he, Mr. Fraser was very --
Felix Frankfurter: Where -- where was -- where was the locale?
George T. Davis: It was in Los Angeles.
Felix Frankfurter: Yes, but it wasn't in (Inaudible)
George T. Davis: He said that he went -- first of all, he said he went to the policeman's offices. He -- he was sure that he went to Colin Forbes' office which is one of them -- no, to Lieutenant Jones' office. He thought he met the other one in his office also. Then he got very vague about the subject and said that Leavy had been along and then he became very vague about where it was.
Felix Frankfurter: But there is no doubt that there were these -- that were these interviews or an interview between Leavy and Fraser and two officers.
George T. Davis: There is no possible questionable doubt about that.
Felix Frankfurter: Now, what I want to know is was there minutes made? Was any memorandum either -- of either a stenographer impression or were some minutes made -- lawyers make minutes of interviews with people. Was any minutes made which is now on the record of what these officers told for instance to enable and then to put in the record of their testimony months, previously?
George T. Davis: I don't know of any such minute or any such record that was made. This came to our attention. I'd like to say with almost a startling suddenness. In the course of the hearings before Judge Goodman when Mr. -- Mr. Bennett who was questioning Mr. Fraser and who undoubtedly anticipated that this might develop, Mr. Bennett asked Mr. Fraser if he had spoken to anybody else. He said, "Who did you talk to outside of Mr. Leavy and outside of the fact that Mr. Fraser said that he'd left the notes -- these original notes with his brother and his wife. Who did you talk to, he said. And Mr. Fraser answered that he talked to a Mr. Collins and Mr. Forbes and then he proceeded along without asking him who they were or what they were or what he talked about.
Hugo L. Black: Suppose we proceed then tonight?
George T. Davis: Yes, Your Honor.