Burke Marshall: To clear up this point of the way that I worded my statement about the commission of a crime, I think that on the record, there is no challenge to the fact that the government proved in this trial all the material elements of the criminal acts except sanity and that's all that I meant is that there's no question but that it started with the commission of acts which would be criminal were not it for depe -- for the defendant's insanity.
Earl Warren: (Inaudible)
Burke Marshall: There is no record, Mr. Chief Justice. I think there is a presumption of regularity and, as I say, the -- there is no challenge to it.
Earl Warren: (Inaudible)
Burke Marshall: There is no transcript of the trial proceedings.
Felix Frankfurter: (Inaudible)
Burke Marshall: No, there was no suggestion by the Court of Appeals, Mr. Justice Frankfurter.
Felix Frankfurter: (Inaudible)
Burke Marshall: Well, I do not think that, in this particular case, there's any dispute as to what happened in the Municipal Court, any basic dispute. The record does show that when the case came on to trial before the chief judge of the Municipal Court, he had before him two reports from the hospital on the mental condition of Mr. Lynch. One was about three weeks old. That one said that, at that time, Mr. Lynch was incompetent, unable to understand the proceedings against him, unable to assist counsel, and that that report recommended commitment and further treatment at the time. The other report was dated just the day before the trial. That said that he had made improvement. That he was now able to understand the nature of the charge and to assist counsel, but that at the time the crimes were committed, he had been suffering from a mental disease, which the report diagnosed as a manic depressive psychosis, which is a very serious mental disease and that, in the opinion of the psychiatrist who wrote the report, the crimes or the criminal acts had been a product of that mental disease. Those two reports were before the judge.
Felix Frankfurter: Are they (Inaudible)
Burke Marshall: Yes, they are, Mr. Justice Frankfurter.
Earl Warren: Mr. Marshall, who made -- who made the decision that (Inaudible)
Burke Marshall: Mr. Chief Justice, it is -- the record simply doesn't show what happened on that point. In fact, the record doesn't show whether the court, on its own motion, called the psy -- psychiatrist or whether the government called him or even whether or not it was on the case on -- in chief. It does show -- all that it shows is that there were these two reports before the judge and that it was in the context of those two reports that the judge rejected the plea of guilty and proceeded to trial.
Speaker: (Inaudible)
Burke Marshall: At the trial, yes, Mr.--
Speaker: (Inaudible)
Burke Marshall: No, it is not.
Speaker: (Inaudible)
Burke Marshall: Well --
Speaker: (Inaudible)
Burke Marshall: But the --
Felix Frankfurter: (Inaudible)
Burke Marshall: Mr. Justice Frankfurter, I'm afraid that I just can't answer that question in general because I'm not familiar enough with the proceedings before the Municipal Court.
Felix Frankfurter: (Inaudible)
Burke Marshall: I think it --
Felix Frankfurter: (Inaudible)
Burke Marshall: I think that's correct, Mr. Justice Frankfurter, but I don't think that it raises a problem in this case because the petitioner, as I understand this case, does not really challenge anything that went on in the Municipal Court, except it --
Felix Frankfurter: (Inaudible)
Burke Marshall: No, Mr. --
Felix Frankfurter: (Inaudible)
Burke Marshall: Well, I think the point is this, Mr. Justice Frankfurter, that he was not tried on a question of sanity or insanity. He was tried for the commission of two criminal acts and in that trial there was evidence of his mental condition and on the basis --
Felix Frankfurter: (Inaudible)
Burke Marshall: Mental condition at the time of the commission of the crimes.
Potter Stewart: The fact that he was tried at all raises the presumption that there was a finding that he was competent at the time of the trial, doesn't it?
Burke Marshall: Yes sir, he was competent at the time of the trial. The judge necessarily had to find that before he put him to trial.
Potter Stewart: And, therefore, presumably he entered the trial at the time of the commitment.
Burke Marshall: That's correct Mr. Justice Stewart, but on that point, of course, there is a great difference between being competent in the sense of being triable, of being able to understand the proceedings and being under the District of Columbia rules legally --
Potter Stewart: Responsible --
Burke Marshall: -- responsible criminally.
Potter Stewart: I understand, I understand.
Felix Frankfurter: Therefore, if one man before him, the testimony of the petitioner, testified regarding the responsibility (Inaudible) and make it sufficiently, implicitly (Inaudible) to what he testified, is one because you say that the commitment as of now was not without justification?
Burke Marshall: Well, Mr. Justice Frankfurter, I think that I'd better clear up this confusion. The -- Mr. Arens did not say -- I did not understand him to say and there's nothing in the record that alleges that Lynch was or was not competent at the time of the trial. Lynch, on his petition for habeas corpus, does not allege sanity right now. There is no claim that he has recovered from the mental disease which existed at the time of the commission of the crimes, but that does not mean that the court had, in order to make this commitment, make a finding at the trial that he was then insane. The court proceeded under the statute and the statute operates from a finding of not guilty by reason of insanity. Once that finding is made by a court or by a jury in a criminal proceeding, under the statute in the District of Columbia, the commitment follows as a matter of law.
Speaker: Well--
Felix Frankfurter: (Inaudible) the meaning that whether that is perfectly proved that at the time of commitment, he was sane. He was (Inaudible) and, having no evidence or having evidence the other way (Inaudible) as he is not under the statute, but the statute is applied. That might make one result on the validity of the statute which gives presumption (Inaudible) mental health irresponsibility at the time of the commission of this act and write another (Inaudible)
Burke Marshall: Well, I do not think, Mr. Justice Frankfurter, that on this record it could be said that there was any affirmative evidence of sanity at all, of any court -- of any kind at any point, but I don't want to give the impression that the court found him to be insane at the time of his trial because that would be a misstatement of what the court did.
William J. Brennan, Jr.: But you do say, I gather, that the court did find him insane at the time of the commission of the offense that -- or that the verdict implies an affirmative finding of insanity at the time of the commission of the offense. Do you say he --
Burke Marshall: No, Mr. Justice Brennan, I don't say that. The -- under the Davis case in the federal system and under the Tatum case in the District of Columbia, once the evidence of insanity is introduced, put in issue at all, either by the government or by the defense, then there is a burden on the government to prove sanity at the time of the commission of the offense beyond a reasonable doubt.
William J. Brennan, Jr.: So that all that we actually have here then, indeed we have no finding of any kind on this record that at the time of the commission of the offense, he was in fact insane. All that we have is that there is a reasonable doubt of his sanity which is implicit in the verdict and also is all that we're to take the finding of the judge to mean.
Burke Marshall: That's right. That's the only finding, Mr. Justice Brennan. On the other hand, as I say there is no allegation of sanity either at the time of the commission of the offense or at the time of trial or now. He does not on this record, raise the question of insanity.
Speaker: What is the date of the offense being charged?
Burke Marshall: I believe that the offenses were in October and the trial was in December.
Felix Frankfurter: (Inaudible)
Burke Marshall: That's I think correct, Mr. Justice Frankfurter, and I think the --
William J. Brennan, Jr.: Well, that isn't true that that's not the premise, Mr. Marshall, as I understood it. The premise is not that there was any finding of insanity in October.
Felix Frankfurter: There is.
Burke Marshall: No --
William J. Brennan, Jr.: But, Mr. Marshall had just said that there it is not.
Burke Marshall: Mr. Justice Frankfurter, the effect of the finding of not guilty by reason of insanity is to find that there was -- the government has not proved his sanity at the time of the commission of the offense. It is not an affirmative finding under the statute of insanity.
Felix Frankfurter: (Inaudible)
Burke Marshall: Well, with that amendment, I think that your statement is correct that the carryover, the time lag, between what -- the finding that the court did make as to mental competence was from October which was the time of the commission of the offense until December.
Felix Frankfurter: But, I might have a different case. I might have a different case if the crime for which he has been charged and as to which he was indicating (Inaudible)
Burke Marshall: That's right, Mr. Justice Frankfurter. Of course, unless he disappeared or something, there would normally not be a --
Felix Frankfurter: But there might be a finding that (Inaudible)
Burke Marshall: That's right.
Earl Warren: Mr. Marshall, from the standpoint of procedural due process finding the evidence here (Inaudible), when does the record show that he first had not been (Inaudible) for his sanity.
Burke Marshall: Well, Mr. Chief Justice, the first knowledge, I suppose, that he had -- that he was actually going to try -- trial was when the court rejected the plea of guilty. Now, that --
Earl Warren: That's on the day of the trial.
Burke Marshall: That's on the day of trial, Mr. Chief Justice. Of course, I would not accept that characterization of what went on. The trial court did have before it, when it was faced with this defendant in this case, it did have before it these two psychiatric reports which indicated -- which really constituted overwhelming, I think, evidence of his innocence at that time. The psychiatric reports showed that it was the opinion of the psychiatrist who examined him that at the time of the commission of the offenses, he was the victim of a manic depressive psychosis which is a very serious mental disease in any terms and that, as a result of that, he did what he did which was the criminal acts and, so that, it was in that context that that was the situation the trial judge was faced with and --
Earl Warren: Do you mean the trial judge prejudged him before the he got to trial?
Burke Marshall: No. I -- Mr. Chief Justice, I mean that when the court -- when the trial judge came in and was faced with this change in plea in the entrance of a plea of guilty, he had before him these two psychiatric reports and the psychiatric reports I think, as I say, indicated to the trial judge really very, very strong evidence of innocence, of innocence of the crimes with which this man was charged. So that, the court was faced with a position of having to accept, if he did what the defense counsel wanted to do -- him to do, accept the plea of guilty under situation when he knew that the man who was pleading guilty was not in fact guilty or at least, Mr. Chief Justice, he is -- he had overwhelming reason to believe that from what was plainly in front of him at that time. I think that it's in that context that we have to look at the -- at the propriety of what the trial judge did.
Earl Warren: Mr. Marshall, are you sure (Inaudible) the only -- the only thing that got to my mind is, is the procedure that he'd gotten. The one that should and can be followed in the federal cases in order to deprive the man (Inaudible) he had the burden of proving beyond a reasonable doubt (Inaudible) defense?
Burke Marshall: Well, Mr. Chief Justice, I would -- I don't know what would happen in that case. I don't know what would happen either at the trial court or, even more importantly, at the time of the release procedures under the statute. There is no doubt that the statute covers all kinds of crime. I mean, the mandatory commitment statute of the District of Columbia covers crimes that are brought -- are charged by indictment and crimes that are charged by information and crimes that are brought before the juvenile court, so that there isn't any limitation in the statute based upon the magnitude of the crime, but we are dealing with a series of procedures that starts with the trial judge. Now, the trial judge, in considering a plea of guilty in the Municipal Court of the District of Columbia has, under the rules of that court an area of discretion. In this case, with the evidence before him, which was not a very minor mental aberration but of a very serious mental disease and with the crimes before him -- that were before him, exercised his discretion in that case in the way that he did. I think it's very difficult to tell how a trial judge would exercise his discretion in another case. And --
Earl Warren: (Inaudible) in this case have accomplished his purpose if he had said that this is probably a minor offense. To me (Inaudible), he's mentally ill. I'm not going to try him this time for this crime. We'll dismiss this proceeding and I'll instruct (Inaudible) simple insanity proceeding against him. And then, if on that jury, he was found to be not mentally ill, then the prosecution who will give the charge for this (Inaudible)
Burke Marshall: I think Mr. Chief Justice that no that course of action was not opened to the trial judge.
Earl Warren: Why?
Burke Marshall: Because I don't think that the trial judge has the authority or power just to dismiss a criminal proceeding when the government has proof that the man did it -- did the act. I don't think that that was a course. Now --
Earl Warren: Suppose the judge had offered a dismissal.
Burke Marshall: No, Mr. Chief Justice, I don't. I think that the judge has to proceed to trial if the government wants to bring it to trial.
Potter Stewart: That's -- you're getting into the next case. [Laughter]
Burke Marshall: Well, I'm not acquainted with the next case, Mr. Justice. [Laughter] Maybe that's fortunate.
Felix Frankfurter: (Inaudible)
Burke Marshall: Well --
Felix Frankfurter: I know --
Burke Marshall: We don't have a Burge's law, Mr. Justice Frankfurter, in this case. I can answer the question in terms of this case. I can't answer it in terms of every criminal trial in the District of Columbia because I don't know, it may vary. But, in this case, the psychiatrists that testified were all clearly independent witnesses in the sense that their testimony in any normal case would've been contrary to the best interest of the prosecution. They testified -- usually if the government calls a psychiatrist, it does so in rebuttal and it does so to rebut defense testimony of other psychiatrist who says that a man is insane. The testimony in this case, though it is not in the record, I think, presumably must be of all had been to the effect that the defendant was insane at the time of the commission of the offenses.
Potter Stewart: Mr. Marshall, while we're little a field, we're dealing here of course with a statute applicable only to the District of Columbia. Am I right in understanding that the generally applicable federal statutory scheme provides that in the -- in criminal cases tried anywhere in the United States, except the United -- District of Columbia, that if a person pleads not guilty by reason of insanity and is acquitted by the judge or by the jury upon that plea, that he walks right out of the courtroom and that the district judge has no duty and no power to do anything about it.
Burke Marshall: That, I think, Mr. Justice Stewart is a necessarily -- necessary result of the federal system, except in the District of --
Potter Stewart: Because these are matters of state concern --
Burke Marshall: That's right.
Potter Stewart: -- and not federal concern.
Burke Marshall: That's right. It's -- the District of Columbia is, as this Court has recognized, is a peculiar mixed jurisdiction --
Potter Stewart: Yes.
Burke Marshall: -- and the matters that we're dealing with in this case are matters of District of Columbia law and it's --
Potter Stewart: So, the answer to my question is yes. My understanding is correct, he walks right out --
Burke Marshall: That's correct.
Potter Stewart: -- a freeman subject of course to any commitment procedures which anybody might want to invoke under this applicable state law.
Burke Marshall: That's right.
Potter Stewart: Now --
Burke Marshall: I believe that, normally, it is the practice to refer the matter to the state civil authorities to -- for a commitment proceeding, but there is no -- nothing under the statute and I'm not sure that there is anything constitutional that the federal government could do in those circumstances.
Potter Stewart: Let me ask you another question. Is there any -- is there any state statute which is like this District of Columbia statute which makes commitment absolutely inflexibly imposable --
Burke Marshall: I believe --
Potter Stewart: -- and doesn't allow the judge any discretion at all.
Burke Marshall: I believe, Mr. Justice Stewart, that there are 11 states that have mandatory commitment statutes that are like this and the British statute is like this. There are other statutes where, although they do not require a present finding of insanity, leave the judge -- the trial judge some discretion. If you add it up, the states which have either an inflexible mandatory commitment law or a commitment law which does not in by its terms, require a present hearing and finding on the issue of insanity, I think there are about 29 or 30 states like that. As I say, that's the British practice. Before this statute was --
Earl Warren: (Inaudible)
Burke Marshall: Where there is a finding of not guilty by reason of insanity, which is what we have here, that either the statute requires commitment right then and there, as does this statute which is 11 states, or it permits the trial judge to commit him without any intervening hearing, but as a matter of discretion and not as a mandatory matter, as is true under this statute. That's a general summary, Mr. Chief Justice. There may be minor variations in it.
Earl Warren: (Inaudible)
Burke Marshall: There are, Mr. Chief Justice. There are some that require a full hearing. I think that's only three states, but there are about 18 additional states which require some kind of an intervening hearing. I think that in this case, speaking to the Municipal Court's discretion and his exercise of discretion, that he did -- that the existence of the statute in the District of Columbia affected the exercise of his discretion in that he did have a statute before him. The statute had been passed by Congress in a specific situation by reason of the developments of the Durham rule. The intent of the statute to apply to acquittals by reason of insanity was very specific and I think that, as I say, in exercising his discretion under the rule, he did have to take into account this congressional intent in the statutory situation. In addition, it seems to me that it is in a way remarkable that we have the petitioner and we have the American Civil Liberties Union, here, arguing for a rigid rule of law, a rigid rule of law that would require a trial judge faced with this kind of a situation to ignore evidence of insanity, which is evidence of innocence, and proceed to accept a plea of guilty. In fact, the cases -- some of the cases in the District of Columbia, in this area, have suggested that that -- it would be an abuse by the trial judge to accept a plea of guilty under the -- those circumstances, that failure of trial counsel to raise the point under those circumstances would be an ineffective assistance of counsel.
William J. Brennan, Jr.: Well, as I understand it, Mr. Marshall --
Burke Marshall: Now, I am speaking --
William J. Brennan, Jr.: It goes even beyond this, doesn't it? Do I correctly understand the District of Columbia cases to say that if the prosecution has knowledge of facts which might indicate mental disability at the time of the offense, the prosecution is bound to follow that contention in the case?
Burke Marshall: Well, Mr. Justice Brennan, I think that that would be the duty on government prosecution.
William J. Brennan, Jr.: Well, my question was --
Burke Marshall: But --
William J. Brennan, Jr.: -- is there anything in any of the District of Columbia cases which suggest that that is the view?
Burke Marshall: I was going to go on and say I don't know -- I don't know that to be true in the District of Columbia cases. I may be wrong about that, but I don't know of any statement to that effect, but I must say that I think it would be unconscionable on the part of the government not to bring evidence of this nature to the attention of the trial judge. We are talking at this point simply of his discretion in doing what he did. Thurman Arnold, when he was on the Court of Appeals here, said that it offended the collective conscience of our society to impose a punishment where we could not impose blame. If this rule of law is -- that is being contended for were to operate it would be a necessary result of it. The trial judges would not have discretion but would be required by this Court to accept plea of guilty and to impose punishment where it could not impose blame or at least where it would have overwhelming reason to believe that it should not impose blame.
Earl Warren: But, Mr. Marshall (Inaudible) and he's only charged with a misdemeanor, shouldn't either the court or the prosecution notify at the trial it is not going to contend his guilt but only the fact that he is insane, thus, giving him an opportunity to prepare his defense to get the witnesses, that he needs to get the psychiatrist that he needs, and then (Inaudible) but the prosecution couldn't get to court in the abnormal way. We must concede that it's abnormal for the prosecution to offer evidence in sanctity of the penalty in this case in chief. Wouldn't the offense, in the nature of the prosecution, given that notice of (Inaudible) prepare if he wanted to contest the question of his insanity?
Burke Marshall: Well, Mr. Chief Justice, if there were any suggestion here, any allegation, that the defendant had been in -- had been prejudiced by this or if the -- his lawyer had asked for a continuance at the time that the re -- plea of guilty was rejected, I think that maybe the Court of Appeals for the District of Columbia might have reversed if the trial court had refused to grant a continuance, but this came up in a context where the man had been confined in the District of Columbia General Hospital for observation. He really had no -- there is no suggestion at all that he hadn't done these acts that were defined as being criminal in the District of Columbia Code and I just think that the possible prejudice of that sort is not presented in this case and, as I say, it was not raised. There is no suggestion of that raised in the trial court.
Earl Warren: May I ask you what (Inaudible) if the petitioner did prevail in this case and which position he was released from custody to Saint Elizabeths Hospital from the authorities that the hospital thought that he was still insane. Could they then initiate (Inaudible)?
Burke Marshall: I believe, Mr. Chief Justice, that under the District of Columbia law when he is confined in a hospital, including Saint Elizabeths, because of mental illness, that the superintendent of that hospital can initiate civil commitment proceedings.
Earl Warren: (Inaudible)
Burke Marshall: I'm not fully acquainted with all the procedures under the civil commitment, but I think that would certainly be a basic and maybe the relevant difference in this case.
Felix Frankfurter: (Inaudible)
Burke Marshall: The --
Felix Frankfurter: Are you suggesting that (Inaudible)?
Burke Marshall: No, I don't think so, Mr. Justice Frankfurter. He did make the point about not having enough time to prepare.
Felix Frankfurter: (Inaudible)
Burke Marshall: But I don't think that Chief -- Judge Fahey's basic point was that the commitment was unlawful.
Felix Frankfurter: I know, but he said that what was an unfair -- an unfair trial turning a proceeding for a commitment.
Burke Marshall: That's right.
Felix Frankfurter: Now, in that case (Inaudible) case, but that issue is not handled (Inaudible)
Burke Marshall: That's right. He states the opposite, I believe.
Felix Frankfurter: Yes. Now on that assumption or assuming that (Inaudible) and I hope you'd say something as to what this Court would do assuming that this, otherwise, mean that (Inaudible)
Burke Marshall: Well, Mr. Justice Frankfurter, if -- if it were solely a question of his not having time or something, I believe in the district, he could've raised that question by appeal. His petition for habeas --
Felix Frankfurter: I'm not talking about how to correct an error. I guess you say what the judge did here all points (Inaudible)
Burke Marshall: Well, if we pass that point and pass the peculiarity of the question of time and whether or not he had time to prepare or to meet the government's case here, I think we are straight up against the provisions in the constitutionality of the District of Columbia Statute of Section 301. That statute does provide for mandatory commitment. It does apply to anyone who has been acquitted by reason of insanity on any charge for any offense in the District of Columbia, whether by indictment or by information or in the juvenile court. The basic con --
Felix Frankfurter: (Inaudible)
Burke Marshall: On its face, Mr. Justice Frankfurter, irrespective of the timeline as well.
Felix Frankfurter: (Inaudible)
Burke Marshall: Well, Mr. Justice Frankfurter, the District of Columbia statute is really in two parts, one part dealing with the commitment procedures and the other part with release procedures. How you get out once you're in? The part dealing with commitment procedures in my judgment does not have any leeway on this point. It is a mandatory commitment statute and it applies to anyone acquitted by reason of insanity, and I don't know of anything in either the language of the statute or in the history of the statute that the court could rely on to say that it didn't apply to everyone acquitted by reason of insanity.
Felix Frankfurter: (Inaudible)
Earl Warren: Mr. Marshall, is it making any difference at all under the presentation of the Court of Appeals had put on this statute whether the trial is two months or two years after the commission of the offense because, as I understood you to say a little earlier, the finding of the court is not (Inaudible) at the time of trial. The finding is what it was at the time of the commission of the offense. So, no matter how long after the offense, the evidence can still be insane or the finding insane as to what his mental condition was at that moment. Is that right?
Burke Marshall: That's correct, Mr. Chief Justice.
Felix Frankfurter: hat does not meet my point that if a finding of his mental condition at the time of the offense is a week before the time of the trial, the statute may indulge the presumption of continuity which it might not (Inaudible) here.
Burke Marshall: Mr. Justice Frankfurter, the experience under this statute, as far as I know, there is no case where it has proved to be the fact that someone committed under the statute was in fact not insane at the time that he was committed. That is, the experience under the statute, I think, has been such that there has never been an instance where the timeline was so great. And you can see, in a way, why that would be so because under normal situations, unless the defendant can't be found, he would be brought in and if he's incompetent to stand trial at that time, he'd be submitted to the hospital for treatment. The treatment of these diseases takes an appreciable amount of time. It isn't like getting over something with a defined beginning and defined end like measles. The time that it takes normally in order to make improvement requires hospitalization and treatment.
Felix Frankfurter: (Inaudible)
Burke Marshall: Well, Mr. Justice Frankfurter, I don't think there would be that long a delay unless the defendant was, in the meantime, in a hospital receiving treatment until he became mentally competent to stand trial.
William J. Brennan, Jr.: As a matter of fact here, Mr. Marshall, but for the fortuitous circumstance that within two months, the psychiatrist would say he had improved after he had been confined on a conclusion that he was not competent to stand on trial, he might still have been there and not been brought to trial. As of today, nobody knows and that period might have been much longer than two months that have been factored in.
Burke Marshall: That's correct -- that is correct --
William J. Brennan, Jr.: And that (Voice Overlap)
Burke Marshall: -- Mr. Justice Brennan, but, under all that time, he would be under the treatment of doctors and the doctors during all that time would be faced with a statutory responsibility of informing the judge -- informing the court as soon as he became competent to stand trial. The hospital is, of course, very crowded and the staff of the hospital is conscious of this statutory duty. He isn't -- the way that it is set up, I think that it is not -- it's at least unlikely that he would sit there because of inertia on the part of the hospital staff.
William J. Brennan, Jr.: No, I'm not suggesting that but I assume there must be some instances of commitment that this one was made initially because they felt he was not competent to stand trial where a long period of treatment, hospitalization is required before there is a certification. Well, now, he is competent to stand trial.
Burke Marshall: But my point, Mr. Justice Brennan, is that I don't think that would affect Mr. Justice Frankfurter's concern because if the delay was by that reason, it would all the time be delay while he was in a hospital and while doctors were watching him to see if he became competent to stand trial, so that the delay between the time of that finding and the trial itself would be very short.
Felix Frankfurter: (Inaudible) the question might not be raised.
Burke Marshall: Well, it is possible, Mr. Justice Frankfurter, that in some case in the district for some reason or another, that if he left the jurisdiction that there might be a substantial period of time between the commission of the crime and the trial on that charge and --
Felix Frankfurter: When was the statute first passed?
Burke Marshall: It was passed in 1955. The Durham rule was -- was handed down in the District of Columbia in 1954 by the Court of Appeals.
Felix Frankfurter: Are you now defending the constitutionality of the (Inaudible) on the ground that there were numerous (Inaudible) where ever they were committed at the time that the defendant (Inaudible)
Burke Marshall: I think that the experience under the statute, as I know of, Mr. Justice Frankfurter, was relevant to your question which was --
Felix Frankfurter: (Inaudible) in the administration here --
Burke Marshall: I think that --
Felix Frankfurter: (Inaudible) it was happening here, giving through judgment by declaration or judgment by experience.
Burke Marshall: Well, I think judgment by experience in this instance, Mr. Justice Frankfurter, is relevant because the challenge to the statute -- this part of the statute is upon the basis that it was irrational, irrational for Congress to make the judgment.
Felix Frankfurter: (Inaudible)
Burke Marshall: And, I would -- I do not have them firmly in my head but I think there must have been --
Felix Frankfurter: (Inaudible)
Burke Marshall: There are a large number -- there are a large number of them. I would -- there are over 200 or 300, Mr. Justice Frankfurter. They all appear in some hearings in Congress last year and I can get you that figure. I can get you a figure.
Felix Frankfurter: (Inaudible) without seeing how the statute actually operates.
Burke Marshall: On the operation of the statute and the general context of the statute, the context in which it is -- was passed, I think that it is also relevant and that the Court should give some weight to the fact that it is in opposite or a result, a consequence, as a matter of legislative history of the Durham rule. The Durham rule, the direction of the Durham rule, the movement of the Durham rule was in treating mentally ill as being mentally ill and not as being insane. I think that that movement is generally accepted as having been a good one. It is a result, one consequence of that, necessarily, is that more people are acquitted by a reason of insanity under the District of Columbia than they would be under the tests of insanity or criminal responsibility that are applied in other jurisdictions, and another consequence of it is that the consequence of having been tried that -- the consequence of this rule of criminal administration is a treatment rather than imprisonment and it's a corollary of that or another consequence of the Durham rule and the statute that followed the Durham rule that the length of time which someone might spend in confinement is not necessarily related to the -- to the magnitude of the offense with which he is charged. As I say, that seems to me to be a necessary and inevitable consequence of a rule in the District of Columbia which permits the advance in the administration of criminal justice by the use of psychiatrists, by the recognition that insanity and responsibility is not necessarily related to specific or certain mental diseases. And, I think that it is the frustration with this fact, the frustration with the fact that the treatment for someone who is mentally ill is not necessarily related at all to the length of imprisonment which he would suffer if he had been found guilty. It's that frustration which gives rise to this case.
Earl Warren: Mr. Marshall, if we were -- if were to hold in this case that the statute itself would require (Inaudible) by insanity was constituted but that the rights of this particular defendant had been violated (Inaudible)
Burke Marshall: I think, Mr. Chief Justice, the answer to that is that in no practical way would it be injured. I think it would injured in that -- I think in no practical way that would be injured, I think that it would be sort of unrelated to the contentions advanced by the petitioner in this case.
Earl Warren: Yes but you're representing this man (Inaudible)
Burke Marshall: Well, Mr. Chief Justice, I agree with you about that but I just, as I say, don't think that it's raised in this case. He -- the defendant, if he had asked for a continuance, if he had asked for more time, if he had -- if he now even claimed that he could've proved sanity at that time, which is not a claim that he makes on the record, if any of those things were true, I don't think this case would've come to the Supreme Court of the United States. I think that that kind of error and I think it might have been an abuse of the discretion of the trial judge, not to grant a continuance, but the trial judge was not asked for a continuance.
Earl Warren: (Inaudible)
John M. Harlan II: Could I put a question to you, this concession which perhaps has been answered before the white light or red light goes on. Bearing in mind that our duty is to construe this statute if we can avoid constitutional question on the basis of our constitutional evidence, I wish you would explain to me what the insurmountable obstacles are to construing the statute as not applied or as applying only in the case where a plea of insanity has been imposed?
Burke Marshall: A plea of insanity has been imposed?
John M. Harlan II: Has been interposed by the defendant?
Burke Marshall: Well, the statute, Mr. Justice Harlan, reads as follows. It says when any person tried upon an indictment or information --
John M. Harlan II: Literally, I agree with you. You don't have to take time on that, but are we excluded from reading the statute in a way to avoid constitutional questions by -- is this statute so inconsistent, so impermissible, so inconsistent that instruction is impermissible?
Burke Marshall: I think, Mr. Justice Harlan, the best I can say -- the best way I can answer that is that -- is that it would -- it has no basis at all in the statutory language. The statutory language talks about people who are acquitted by reason of insanity. It does not talk about it in terms of whether or not there was a defense imposed and the law in the District of Columbia and the law in the federal system at that time was that the issue of insanity could be raised by evidence introduced by either side.
John M. Harlan II: In other words, if there was a gap construing the statute, as I suggest that it might be construed, if there was a gap in fulfilling -- left a gap in fulfilling the congressional purpose, I would say that was impermissible. But, as I understand the type of operation of this, if the statute was construed as I'm now hypothesizing and the man were sent to Saint Elizabeths and the superintendent looked him over and said “well, this no -- man is no longer insane. He has recovered.” It would be his duty to release him. Now, if the judge, faced with that kind of a limited construction of the statute, said “well, alright, there's been no plea of insanity here but I've looked at this man and he seems to be very insane and I will send him to prison, as I have to do, and tip off the warden. He better take a look at him” and, the warden sends him over to Saint Elizabeths for examination and Saint Elizabeths said “we believe that the man is not insane at the moment” and out he goes. What's the difference between the two things as a practical result? What gap is left in the administration of the statute?
Burke Marshall: Well, Mr. Justice Harlan, the principal gap that would be left in the procedure that you suggested is that the time for his treatment in the hospital would necessarily be related to the punishment, the length of punishment for the offense that he's been cre -- he committed. The -- among other things --
John M. Harlan II: I'm hypothesizing in both instances that the man -- the only justification that under either procedure the war -- the -- Saint Elizabeths who have obtained with or above the sentence would be if he is found then un-recovered from his insanity both instances if they found him sane at the time, even though insane at the time of his -- at the time of the commission of the offense or would it be duty to release?
Burke Marshall: Well, of course, that's -- Mr. Justice Harlan, if he found him ins-- found him sane at the time that the sentence would've expired, it's his duty to release him under this statute.
John M. Harlan II: I'm talking before the sentence expired.
Burke Marshall: Well, it is a duty -- it is the duty of the superintendent of the hospital to certify him as ready for release whether -- if he has a 99-year sentence and he recovers in 9 months, he gets released under the statute.
John M. Harlan II: Exactly.
Burke Marshall: And, I'm afraid I haven't grasped your question.
John M. Harlan II: Where is this gap?
Felix Frankfurter: Mr. Marshall, I do not --
Burke Marshall: The gap occurs, Mr. Justice Harlan, as to prisoners who would -- whose term had not expired. If -- if the court handed down a rule of law which would forbid a -- yes, sir?
Felix Frankfurter: I'd like to (Inaudible)
Burke Marshall: Well --
Felix Frankfurter: And, thereby, (Inaudible)
Burke Marshall: Mr. Justice Frankfurter, I don't know what kind of a choice that would leave the trial judge in this circumstance. Now, if the trial judge accepted the plea of guilty, he could do what Mr. Justice Harlan suggests, and that is that he could sentence him and then suggest to the warden that the man ought to be looked at and, perhaps, sent to Saint Elizabeths. But, if he did that, he did that, he would be finding a man whom the government and the court and defense counsel, all knew to be innocent and he would be imposing a finding of guilty and imposing a sentence, a con -- a sentence of conviction under those circumstances. On the other hand, if he proceeded to do what I would think would be his duty as a judge and under conscience, which would be to take in the evidence of insanity, then -- and have a trial and not accept the plea of guilty, then the man would -- the defendant would be acquitted on the grounds of insanity and there would be no commitment statute in the District of Columbia that would be applicable to the case, which I think would defeat the intent of Congress.
Felix Frankfurter: You worry about this situation. That is what I'm worried about. I'm worried about the statute being unconstitutional against a man (Inaudible) and you would think --
Burke Marshall: Well --
Felix Frankfurter: (Inaudible)
Burke Marshall: Well, I think a very few of them, Mr. Justice Frankfurter, but there was an implication in your question which I would like to remove and that is that you said I believe that if necessary to change -- to save the constitutionality of the statute. Of course, I do not think such a construction is necessary to change -- save the constitutionality of the statute. I think that the statute is a rational act of Congress in equating treatment of the mentally ill --
Felix Frankfurter: (Inaudible)
Earl Warren: (Inaudible)
Burke Marshall: That's correct.
Earl Warren: Even if these two affidavits before him as to the competency of the defendant, the judge would've said, could he not, “I'm going to determine whether in my own judgment this man is competent to stand trial” could be all the difference?
Burke Marshall: Well, Mr. Chief Justice, I suppose that he could have, as a matter of procedure and power, but he would've been doing something for which there would be no justification in fact. I do not think anyone contends, starting with Mr. Lynch and on to the government or the court that Lynch was not at that time competent to stand trial. He was competent to stand trial in that he understood the nature of the charges against him and he was competent to talk to his lawyer and tell his lawyer what had happened. The -- that is very different from not -- from being responsible in the criminal law sense.
Earl Warren: Mr. Arens.
Richard Arens: Mr. Chief Justice and may it please the Court. In summarizing what I've already said, may I state the question emerging in this case, is not essentially whether an insanity defense may be forced upon a recalcitrant and competent defendant with a view of spearing him life or loss of liberty. The question is whether an insanity defense may be forced upon a recalcitrant and competent defendant with the view to depriving him of his liberty without adequate safeguards and I respectfully submit that the safeguards emerging from the situation confronting this Court were not adequate. The government concedes that there was no formal notice. The opportunity to defend effectively, in terms of psychiatric assistance was nonexistent and the standard of proof was clearly and explicitly that of reasonable doubt, and reasonable doubt alone. There was no finding that petitioner was insane as of the time he was committed and, when committed, he was committed under circumstances that made his release subject to an onerous oppressive and, I submit, unconstitutional standard, a matter which is not all together relevant in considering his present plight. The hypothetical situation applied by the Chief Justice strikes me as precisely the situation which would become common place if the Lynch rule were to be maintained. We've suggested that the application of the Lynch doctrine would enable the prosecution to assert by no means implosively that almost any traffic violation was attributable to the tension generated by a mild and perhaps a very widespread mental disorder. Such assertion backed by evidence presenting no more than a reasonable doubt concerning the mental health of a defendant as of the time of that violation would result in the commitment of that defendant to Saint Elizabeths Hospital for an indefinite period of time and one might add without any assurance of adequate treatment because the Court of Appeals in Auburn against Overholser declared the question of the adequacy of psychiatric treatment at Saint Elizabeths to be a matter of legislative and not a judicial concern. I conclude, with the observation of a legal publicist, undoubtedly known to this Court, Aristotle observed long ago that punishment is a sort of medicine. We have considerable cause today to observe that medicine can be a sort of punishment sans due process of law. The use of medicine as punishment now calls for the correcting hand of this Court.


Earl Warren: Number 471, Anthony M.Palermo, Petitioner, versus United States of America. Mr. Newcomb.
Wyllys S. Newcomb: Mr. Justice -- Mr. Chief Justice and members of the Court. This is a criminal tax evasion case. The issue to be determined here is whether the trial court committed reversible error when it denied a defense motion to inspect what has been marked Court's Exhibit 2. The case, in bare broad outline, was roughly this. The petitioner's tax returns contain substantial understatements of income from dividends and capital gains. On the trial, it developed that on legitimate business, the petitioner was away from home each year during tax time. He happened to be the team physician for a major league baseball team and was down south on spring training. His returns, the tax return forms were signed by him in blank. He left in New York checks signed in blank to cover the payment of his taxes. His returns were prepared and the blank checks were filled out by a firm of certified public accountants in which his brother-in-law, Arthur R.Sanfilippo, was the senior partner. His returns were certified by Sanfilippo or his partner and filed in New York, together with the checks. The returns were never seen by the petitioner after they were filled out nor copies -- nor were copies of them given to or seen by him. The defense in the case, thus, was reliant on the accountants. The Government's theory was that the petitioner had given false information to his accountants and he withheld true information from them, and that he had done all this with intent to evade. An important element in the Government's proof was Government's Exhibit 6, and the evidence offered by the Government as to when and under what circumstances Exhibit 6 was first received by the accounting firm. The defense contention was that Exhibit 6 was, first, delivered to the accounting firm early in 1952 for use in preparing the petitioner's 1951 return. There was substantial evidence supporting the defense position. The Government's theory was that Exhibit 6 was, in effect, petitioner's secret, a little black book. That it was withheld and concealed from the accountants. That it was not produced by him or given to his accountants until after -- long after the criminal tax investigation of his affairs had been begun. It is now appropriate to have a look at Exhibit 6.I've requested the Clerk to afford the Justices a copy, and I've given one to the Solicitor General. It is a list of dividends in the doctor's own handwriting, the petitioner's own handwriting. The hieroglyphics or hand tracks are stock market symbols. The total dividends of the pertinent class shown on Exhibit 6 for 1951 is $16,900 plus. In his tax return for 1951, the dividends in this class that were reported were only $3800. Needless to say, the prosecutor and counsel for the petitioner fought over that piece of paper, from the beginning of the trial to the end, like two terriers over a bone. Whichever could make off with it would, in all probability, make off with the case as well. To prove its position, the Government relied on the testimony of Mr. Sanfilippo, the senior partner of the accounting firm, and elicited from him, on direct examination, the following testimony on page 27 of the record. The question I show you, Government's Exhibit, for identification, “Can I ask you to tell the Court and jury if you have seen that before?” Answer, “Yes.” Question - “when did you first see it?” Answer, “During the course of the tax examination of Mr. Mishler in 1953.” Question, “Who gave it to you?” “The defendant.” On cross-examination, there being doubt as to just what Sanfilippo meant by “during the course of a tax investigation,” the counsel for petitioner pinned the witness down and, on page 81 of the record, it appears that the witness testified that he received it after the agent asked for additional information and after he, Sanfilippo, had asked the taxpayer for additional information. This testimony was absolutely false and demonstratively so. And, without laboring the details of the evidence, I refer the Court not only to our main brief, but matters analyzed on page 10 of our reply brief which the Court may examine at its leisure. The defense, then, brought out that the testimony of the witness on this point had vastly changed. It had begun, months before, with a flat sworn statement, “I do not know when I got this. I can't remember it. I cannot account for it. I have no recollection.” One year-and-a half after that testimony was given, this witness testified upon trial to a direct, clear, positive, and damning recollection that he got it at a definite time for a definite purpose. The process -- the story had gone through a process of evolution. On July 16, 1956, when he was examined by the special agents under oath, and this was the first time they ever asked him about this exhibit, he said “I don't know. I don't remember it. I can't account for it.” Six weeks later, the special agents had him in again, on August 23, 1956. They showed him copies of the doctor's returns and Exhibit 6, and they made him compare them. The message was plain. Whether or not it was spelled out to him is not important now. If his firm had Exhibit 6 when the defendant claimed they had it, then the firm had either been guilty of negligence of the most aggravated character or Sanfilippo was a co-conspirator, a codefendant in a conspiracy case.
Potter Stewart: When did the defendant claim that they had it?
Wyllys S. Newcomb: Mr. Justice Stewart, if you would look at the exhibit, you will observe that there are two columns on the left-hand side and you will observe that there is written in, it's somewhat indecipherable, as to each item in 1951, and only as to each item in 1951, certain interpretations of the stock market symbols. Those interpretations were placed there by Mrs. Irene LaCombe, who had been a clerk in the Sanfilippo's office. She testified unequivocally that she put them there in December 1952 while working in preparation of the defendant's 1951 return. She was a government witness.
Potter Stewart: Okay, that return would have been due in April of 1952, would it not?
Wyllys S. Newcomb: Sir?
Potter Stewart: His 1951 return have been due in April of 1952?
Wyllys S. Newcomb: March 15.
Potter Stewart: March in --
Wyllys S. Newcomb: Yes, sir.
Potter Stewart: The case, yes.
Wyllys S. Newcomb: Yes, Mr. Justice. He said, and she said it, she was a government witness, and she said it clearly, the government attorney immediately turned around and tried to attack her -- attack her testimony, and the record is right there for the Court to examine, and she was clear and she stuck to it. Moreover, I haven't the time to analyze circumstantial evidence, but there was other circumstantial evidence indicating that this was there. Now, the Government will quarrel with it. This is a defense contention but there was evidence, and no doubt about it.
Earl Warren: Well --
Wyllys S. Newcomb: The --
Earl Warren: Just so I'll get a word in it, when was the return for 1951 made?
Wyllys S. Newcomb: March 15 -- or March 1, 1952.
Earl Warren: Well, these documents -- this document, it --
Wyllys S. Newcomb: Yes, sir, I --
Earl Warren: Seems to me, it goes down to -- at least to --
Wyllys S. Newcomb: Mr. Chief Justice --
Earl Warren: June 30th.
Wyllys S. Newcomb: I can anticipate your question.
Earl Warren: Well, that -- in --
Wyllys S. Newcomb: The doctor and his brother-in-law, as a family, passed the documents back and forth constantly between the doctor and his office and the accountants and their office. So, the -- they had this document for 1951 early in 1952, and then, returned it to the doctor who continued it, returned it again to them in 1952.
Earl Warren: But it isn't, then, purported to be the way it was when they use --
Wyllys S. Newcomb: When this girl --
Earl Warren: When they used it to make up the report.
Wyllys S. Newcomb: Yes, Your Honor. No, it does not, but that is the --
Earl Warren: All right.
Wyllys S. Newcomb: Significance of the fact that Mrs.LaCombe's entries are only there for 1951.
Earl Warren: Right, that's all I was interested in.
Charles E. Whittaker: Can I ask you --
Wyllys S. Newcomb: Pardon me?
Charles E. Whittaker: I'm not sure I understand. Is this considered that, admittedly, it correctively affirmed that they collected both all the documents, is that what they did to come --
Wyllys S. Newcomb: Substantially so. There are a few omissions. They consist of yearend dividends that were put in 1952 or a few minor omissions.
Charles E. Whittaker: Now, is this return report, you would say, exists through the accountants trying to look for the purpose of determining the 1951 returns?
Wyllys S. Newcomb: Yes, sir.
Charles E. Whittaker: Then, how could it be that, since the report of the payment, the dividend he receives subsequent to the taking to return the suit?
Wyllys S. Newcomb: Mr. Justice Whittaker, the evidence was that, and this was conceded by the partners in the accounting firm, the clerks, and others, that the doctor's records would go down to the accounting firm's office where they would be worked on and then returned to the doctor where they would be continued. And then, when the next year came around, the documents go to -- go down and come back.
Charles E. Whittaker: Then, it's just to give the forms right back and forth --
Wyllys S. Newcomb: Yes.
Charles E. Whittaker: Between the accountant's office --
Wyllys S. Newcomb: Yes, sir.
Charles E. Whittaker: And the defendant's office?
Wyllys S. Newcomb: Yes, sir, and we had substantial, definite, and direct evidence to that effect. Now, what's the time that Mr. Sanfilippo finally -- I think you said there were several versions of his testimony, but when is it he said he finally got this thing? What's the date he gave?
Wyllys S. Newcomb: He finally said he did not get it until after, approximately, April 1953, which was after the criminal tax evasion investigation had been gone.
Potter Stewart: Now, at that time, on April 1953, was the young lady who put these marks, according to her testimony, on six -- employed by Sanfilippo?
Wyllys S. Newcomb: She left the firm -- I think she was. There was another girl who had left, as early as she did. If I --
Potter Stewart: Yes, I --
Wyllys S. Newcomb: Now, may it please the Court. In this evolution of Sanfilippo's testimony, the first date was July 16, 1956, when he said I don't know. The next time was August 23, 1956, when he signed an affidavit and he had a conference with the agents. When we reached that point on the trial, we moved for the production of any memorandum made by the agent, showing what Sanfilippo had said to him in this conference with respect to this subject matter and the others on the charge. It appeared that the conference lasted three-and-a half hours. There was a memorandum. It consisted of four typewritten pages. It was dated the same day. It was made within several hours after the conference by Special Agent Harper. It was later signed also by Special Agent McGowan. It was made under circumstances establishing awareness on the part of the agent that the case literally hang on what Sanfilippo was saying. Unless the agent was lacking in intelligence, and he was a very good and fine and honest agent, he knew that he was questioning a man who would be either a codefendant or the principle witness for the Government. According to what we have learned from the Government's statements, it consisted -- it constituted the agent's summary of what he said. He -- and, under our view, there is no question that, unless defense counsel saw what was in that memorandum, unless counsel saw how this testimony had been evolved from total lack of recollection to total recall incriminating the defendant, then he simply could not get a fair trial. May it please the Court, I'm a trial lawyer. The man has told four stories. This was when one of them was developed. As a trial lawyer, I say with deep sincerity, and if I am not given access to what that man said to the agents on this occasion in whatever form, it may be recorded, I have been deprived of a fair opportunity to cross-examine the witness. Until I came here, yesterday, I felt strongly that the statute was not exclusive. I still think that a “substantially verbatim recital” can embrace a single sentence which says, in substance, he said to me so and so. That could be an intelligent, reasonable, constitutional interpretation of the statute, but the Government says that that is not so. I made that point, but I say to the Court that if, under the circumstances here presented, the statute says that a court cannot, and this Court did not even examine the document, there is an error in the Government's brief, the Court did not examine the document. It says to me, “You cannot see it or any part of it,” then, I say that justice has not been done. The motion should have been granted, just as required, no less. And, I think that what I am talking about is due process of law under the Fifth Amendment of the Constitution of United States.
William J. Brennan, Jr.: Did you say that -- was this -- this case was tried after the Jencks statute?
Wyllys S. Newcomb: Yes, sir.
William J. Brennan, Jr.: Do you say the trial judge did not see the statement at all?
Wyllys S. Newcomb: No, Sir.
William J. Brennan, Jr.: Did he say why he would not look at it?
Wyllys S. Newcomb: Yes, he said Jencks was only impeachment and that this was a document that you couldn't impeach with.
William J. Brennan, Jr.: Well, how did he know that if he didn't look at it?
Wyllys S. Newcomb: At the opening of the argument, Judge Dimock said to me, “You are not within in 100 miles of the statute, are you?” And, so, I would open and I said “no, but I -- maybe not, but I'm under Jencks clearly.” So, I argued constitutionality. They argued “are you Jencks?” I just couldn't make him see it.
William J. Brennan, Jr.: Well, what are you and he arguing about, and you get this? Neither of you had seen it?
Wyllys S. Newcomb: May it -- Mr. Justice Brennan, I developed, and the Government said, there was such a memoranda. I think, as a trial lawyer, I was not far off when I took the position that there was anything that Sanfilippo said.
Felix Frankfurter: Could you --
Wyllys S. Newcomb: I --
Felix Frankfurter: Did you say, because I understand you to say, a minute ago, that you agreed with Judge Dimock and this was not within the term of the statute?
Wyllys S. Newcomb: Well, I could certainly qualify that we're in agreement, Your Honor. He certainly --
Felix Frankfurter: Well, you should ask -- what did you say? Did the record show what you said?
Wyllys S. Newcomb: Yes.
Felix Frankfurter: What did he --
Wyllys S. Newcomb: He --
Felix Frankfurter: What did you say, may I turn to the documents, introduce into evidence, and probably the documents --
Wyllys S. Newcomb: I said I do not think I am with it or I do not hope to bring --
Felix Frankfurter: But you relied on Jencks.
Wyllys S. Newcomb: But I relied on Jencks.
Felix Frankfurter: That's what I understood you to say.
Wyllys S. Newcomb: But --
Felix Frankfurter: You relied on Jencks?
Wyllys S. Newcomb: Mr. Justice Frankfurter, I did not say that, until after Judge Dimock had said to me, “Mr. Newcomb, you are not within 100 miles of the statute.”
Felix Frankfurter: Well, you wouldn't have to see this as the same way that he did, did you?
Wyllys S. Newcomb: No, sir, but we had had the Jencks case up before in the statute, and I sincerely believe that I made no concession which was anything more than a graceful act of deference to a clearly indicated opinion on the trial court -- on the basis of the trial court. However --
Felix Frankfurter: I'm not blaming you for saying --
Wyllys S. Newcomb: I understand, sir.
Felix Frankfurter: I understand your argument to be what the preceding argument was, that Jencks survived the statute and that you made the outside of the statute, yet, within the Jencks.
Wyllys S. Newcomb: Yes, sir, and if the statute --
Felix Frankfurter: That is your position now, isn't it?
Wyllys S. Newcomb: Yes, sir.
Felix Frankfurter: So --
Wyllys S. Newcomb: I --
Felix Frankfurter: You didn't surrender anything if you intellectually thought that.
Wyllys S. Newcomb: I think you're right, though, Your Honor. It follows that the conviction below must be reversed and there should be another trial. Thank you.
Earl Warren: Mr. Spritzer.
Ralph S. Spritzer: Mr. Chief Justice and may it please Your Honors. I do not like to take an undue amount of time in discussing the facts of the case in as much as the Court does have statutory and constitutional questions before it. However, in as much as the Government's position on the statute has already been elaborated in the proceeding case, particularly, in relation to its application to memoranda or summaries. I think perhaps that it may be helpful to attempt to place the issue as to production, as it arose in this case, more clearly in its setting. And, I do wish to review very briefly the nature of the proof and to indicate the theories of the prosecution and defense and precisely how this issue arose and how it was handled by the Court. In view of the difficulty of dealing with figures, I have asked the Clerk to distribute a chart which has several tables in it. Now, I want to call the Court's attention, if I may, at the outset, that this case involves tax evasion not merely for the year 1951, but for three years, 1950 to 1952 inclusive. And, that the defendant was convicted on all three counts and that concurrent sentences were handed down. Now, actually, the proof went back beyond 1950 and showed that the pattern of under reporting went back at least as far as 1948. The first table on this form which I've submitted to the Court is simply drawn from the tax returns, and it shows a comparison of the income reported by Dr. Palermo on his original return with the income which he ultimately reported on his amended return for the same year. He filed amended returns for these five years in 1956, some-four years after the tax investigation by the Internal Revenue agents began. The Court will observe the discrepancy as between the amounts reported on the original and the amended returns. Perhaps, the biggest variation is in 1951, $9000 reported originally, $31,000 ultimately reported. Now, the second table shows dividend income returns, and we have that table here because the under reporting was concentrated in the area of under reporting of dividends. The other area was under reporting of capital gains on the sale of securities. Now, the Court will see from Table 2 that, in 1950, for example, 14,000 in dividends was reported. The actual figure should have been 33,000 in dividends. In 1951, the variation is 13 against 30. The least discrepancy is in 1952, and the 1952 return was filed after the Treasury agents had begun an investigation into taxpayer's 1951 returns.
Speaker: Could I ask you a question?
Ralph S. Spritzer: Yes.
Speaker: This amended return, that is his amended return and not --
Ralph S. Spritzer: His amended return.
Speaker: What the Government complains?
Ralph S. Spritzer: These are conceded figures now filed by the taxpayer. In every year, except 1952, far less than half of Dr.Palermo's dividends were reported and, of course, as the first table indicates, far less than half of his net income was reported. But, actually, that doesn't begin to give the full picture. One can narrow this evasion to a smaller area. Dr. Palermo bought stock in two ways. He bought it on margin through margin accounts and he bought it outright. Stock bought on margin, of course, does not become the registered stock of the buyer. It remains, in the term of the trade, in street name and the dividends on such margin stock go to the broker and not directly to the ultimate purchaser. As a result, all of the dividends on the margin account purchaser -- purchases went through the brokers and the brokers kept regular formalized records, and they submitted monthly statements to the -- to Dr. Palermo. Now, of course, those regularized monthly statements would be readily acceptable to any tax investigator. There was not evasion in respect of the dividends received on securities bought on margin. The evasion was concentrated in the area of the securities which were bought outright, the securities that the doctor had in his vault, which he might have been holding for six months or a year or five years. The figures in Table 3 show the under reporting of dividends on stock which was owned outright by Dr. Palermo. Here is a man who received, in 1950, over $18,000 in dividends on his outright owned securities. The figure he gave the accountant as representing his dividends for that year was 4000 on such securities. In 1951, the discrepancy is over 20,000 received and 3800 reported as representing dividends on this class of securities. Table 4 on our chart, over which I shall not linger, indicates the amount of capital gain on the sales of securities which were not reported. One further word about the under reporting of dividends, the outright owned securities were held some in the name Dr. Palermo and others in the names of nominees - Dr. Palermo's mother, a niece, a former lady employee. It was conceded that all of the dividend checks which were made payable to these nominees were endorsed and cashed by Dr.Palermo. It appears that at no time were any of the dividends received by these nominees reported by the doctor. Now, I come to the question of how the doctor's tax returns were prepared and, to the -- briefly, to the evidence on that point. As the Court has heard, the doctor's brother-in-law, Sanfilippo, was an accountant. Sanfilippo's partner, Amoruso, was a friend of the doctor also, some-30 years standing. They both testified. Dr.Palermo did not testify, so we have nothing from him as to his relationship with his accountants. Both the accountants testified and they both said that they never, at any time, made any investigation, any audit or any form of accounting inquiry into the figures which represented the doctor's dividends on the securities which he owned outright. As to the margin account stocks, they got -- he furnished them his broker's monthly statement. As to his other stocks, held in his name or by his nominee, they got the information from him and they took the figures, they testified, as submitted. They said they weren't paid to make an audit. That they relied on the figures which he gave them. Normally, they said those figures were provided to them over the telephone. Now, I'd point out parenthetically that even if contrary to the testimony of the accountants, they had information accessible to them so that they should have known that he was grossly understating his income, assuming that they were winking at the evasion, that would hardly serve to exonerate the doctor who gave them these grossly inadequate figures, who stood to profit by it, and who must have known, I submit, that he was hardly paying the taxes that were due. In one year, for example, Dr.Palermo had over $30,000 in dividends, as well as income from his medical practice, income from rents on properties that he owned, more than $30,000 of dividends, I emphasize, and he paid a total tax of less than $2000. Was he unaware of what was going on? I must defer on the suggestion that he filed, “gave blank checks to his accountants and signed all of his returns in blank,” because the evidence only supports, in our view, including the references cited by petitioner in his brief, that one -- the return in one year was signed in blank. But, all of this apart, let us consider the Government Exhibit 6, the document by which the defense seeks to suggest fault or complicity on the part of the accountants. Your Honors have seen the report -- the form, I should say. It's a blank form of the kind that a brokerage firm gives out to customers so they can note, in daily journal form, the dividends that they receive. Now, there's no question that, at some point, the accounting firm received this report -- this form, and the question is just when it was received, it being --
Speaker: Mr. Spritzer.
Ralph S. Spritzer: Yes, sir?
Speaker: Even though I didn't have the benefit of the argument of the previous case --
Ralph S. Spritzer: Yes, sir?
Speaker: I certainly don't want to ask you to repeat it, but just so I can understand, the thrust of your present argument is to show that the exclusion of the -- or the failure to give this to the defendant's counsel was not prejudicial, is that right? That if -- the error, it was not prejudicial error?
Ralph S. Spritzer: If there was error.
Speaker: Yes.
Ralph S. Spritzer: Our primary argument in all of these cases is, of course, that summaries, as distinguished from substantially verbatim transcripts or signed statements, are not producible. And, I've been giving this because it bears both on any question of harmless error, if there was error, and -- but there was not error is our first argument. I've been giving it with that partly in mind, but also, since there has been some discussion of the fact to the try to give the benefit of -- the Court the benefit of understanding the precise issue or production as each developed. And, I am gradually trying to focus in on that. As I say, the question as to this Steiner-Ralls form, so-called, it's the sort of stature Your Honors have, is when the accountants got it. The defense suggests that if the accountants got it before March 15, 1952 that, then, they were negligent, at the least, in showing $3800 in dividend on outright owned securities because this form, if you add up, shows some $16,000 in dividends on outright owned stock for 1951. Now, I think there are various circumstances which support Sanfilippo's testimonies that this was not available to the firm in 1951. In the first place, as the Court has noted, this is a continuing daily journal kind of entry and, if the doctor submitted he has paid this paper to the accounting firm which normally took some weeks at least to makeup his return, presumably, he'd start a fresh piece of paper to show his 1952 dividend, but this continues uninterrupted. In the second place, there was the testimony of Amoruso who supervised the preparation of the return for 1951. And, he testified that the doctor gave him the $3800 figure which was in the worksheets and found its way into the return, that the doctor gave him the $3800 figure over the phone, and that he never saw this paper when he prepared the 1951 return. In the third place, we find that Dr.Palermo, himself, has never claimed that he gave this form to the accountants before the tax return of 1951 was filed. Agent Harper, the same agent who subsequently spoke to the witness Sanfilippo, interviewed Dr. Palermo. Dr. Palermo told Harper that he could not recall when this form was given to the accountants. The only suggestion that the accountant had it in 1951 or in early 1952, when the 1951 return was prepared, is by a lady who worked in the firm, Mrs.LaCombe, whose testimony, far from being unequivocal, showed a great deal of confusion. She testified that she had seen this form, she thought, when the 1951 return was made out. She also testified that that was when a Mr. DeGeorge, another employee of the firm, worked there. When it was pointed out to her that Mr. DeGeorge did not work there until a considerably later date, she finally testified at Record 292, I refer the Court to the top half of the page, that it could have been in 1952 or it could have been in 1953. Now, I --
Speaker: Could I ask you one question? I understand you to say this exhibit adds up to $1600.
Ralph S. Spritzer: The 1951 --
Speaker: The 1951.
Ralph S. Spritzer: Part of it.
Speaker: And does that mean that, as compared with the amended return, there's still a discrepancy of $1400?
Ralph S. Spritzer: No, because this dividend list is on outright owned security.
Speaker: Oh, I see.
Ralph S. Spritzer: And, the amended return has the figures from the broker.
Speaker: I see.
Ralph S. Spritzer: This list, however, is -- is incomplete as to outright owned securities itself and, as a matter of fact, in 1952, the accountants used this part of the form to get the taxpayer's dividends and the jury found him guilty of tax evasion in 1952 because he didn't write all his dividends down here and at no point were the dividends paid to nominees' reporting. Moreover, in 1952, he had a $10,000-capital gain that wasn't reported. But, I emphasize this because, in the next year, this form was used as a basis for preparing the return and the jury found him guilty in that year as well.
Speaker: This very paper or similar to that?
Ralph S. Spritzer: This very paper was used by the accountants the next year.
Speaker: I understand because this only appears to go through six months of the year, through June 30th.
Ralph S. Spritzer: Well, this was not the only -- no, I think it goes on --
Speaker: Or am I mistaken?
Ralph S. Spritzer: I think it goes on later thereafter, it is which -- or later in the year. You've got to look at the final column. It's a rather difficult paper to read.
Speaker: I see.
William J. Brennan, Jr.: Mr. Spritzer, this lady testified that these translations of the symbols aren't her own handwriting?
Ralph S. Spritzer: Yes.
William J. Brennan, Jr.: Did she say -- did she testify of circumstances under which she has --
Ralph S. Spritzer: She testified that she knew she worked with the paper at some point. Now, after the tax investigation of petitioner's affairs began in December 1952, the accounting firm did work to determine whether the 1951 return was accurate. They wanted to find out what additional was owing and there would have been just as much reason for her to go over the dividends then as at any prior time. And, that brings me to Sanfilippo's testimony and the effort to impeach Sanfilippo, of course, is the effort which leads to the issue as to production in this case. Now, Sanfilippo testified on more than one occasion, and I would like to take his statements chronologically. On July 16, 1956, Sanfilippo was interviewed by Agent Harper for some-three hours. A transcript to that interview was made. It became available to the defense. The Court has copies of it, marked Y (7). At pages 32 and 33 of that transcript, Sanfilippo said to Agent Harper that he didn't recall when he got this Steiner-Ralls form or when he first saw it. The next month, in August of 1956, Sanfilippo returned to the agents' offices and was with them for some-three-and-a half hours. At this interview, Sanfilippo examined the transcript of the prior July interview. He made certain corrections which appear of the face of that transcript and any initial of those changes. At that second meeting with Agent Harper, he executed a supplementary affidavit that was made available to the defense, and the Court has that as Exhibit Z7. Sanfilippo said that he -- well, outspoken in part, he said in that supplementary affidavit “I recall that Mr. Mishler,” Mishler was the first Revenue agent who looked into the taxpayer's affairs, his investigation having began in December 1952. “I recall that Mr. Mishler requested additional information concerning the doctor's dividend income and I believe that Dr.Palermo supplied me with this form with a notation of dividends at that time.” Now, the record shows Mishler was a witness, that Mishler commenced his investigatin in December 1952, that he called upon Dr.Palermo at that time to come in and reply, if he would talk about his tax affairs, and that Mishler questioned Dr.Palermo in December 1952 as to apparent discrepancies in dividend income. Now, the next time, the third time that Sanfilippo spoke about the date of receipt of the Steiner-Ralls memorandum was before the grand jury. The grand jury minutes, over the Government's objection, were made available to the defense in this case. They're marked W (7). And, at page 28, Sanfilippo, quite consistently with his supplementary affidavit, told the grand jury that the firm received the Steiner-Ralls dividend form after the commencement of the tax investigation by Mr. Mishler. And, at page 29, he says he did not see it prior to preparation of the 1951 return. But, finally, we come to the trial. Again, Sanfilippo testified that he did not have this dividend form when preparing the 1951 return and that it was his recollection that Palermo -- Dr.Palermo's submission of this form was precipitated by the action of Agent Mishler in December 1952, calling Palermo in and questioning him about his dividends. Sanfilippo also explained how his recollection came to be refreshed. He said that, after the July meeting with Agent Harper, he went back and talked with his partner, Amoruso. It then came back to him, he said, that the occasion of their receiving this form, and usually they'd receive figures from the doctor over the phone, sometimes lump sum figures. It came back to him, he said, that the occasion of receiving this form was that concern had been engendered by Mishler's interrogation of Dr. Palermo. Mishler emphasized, when he called Dr.Palermo in, that there were apparent discrepancies of dividend income.
Speaker: That is the grand jury testimony?
Ralph S. Spritzer: No, I'm talking about his trial testimony now.
Speaker: What page?
Ralph S. Spritzer: 149 and 150 has a portion of that, Your Honor. Now, at this point, the defense had received, had seen the question-and-answer transcript of the first interview with Harper, the supplementary affidavit prepared at the second interview with Harper, and the grand jury minutes with Sanfilippo's testimony. The defense then sought any memorandum of the August 1956 meeting which Agent Harper might have made. The Assistant United States Attorney advised the Court that the Government had no statement -- no approved statement and no transcript of matter that Sanfilippo had said at the meeting in August with Agent Harper. The Assistant advised the Court that he had a memorandum which Agent Harper had prepared after that meeting. He said it was not a substantially verbatim transcript. The Court asked defense counsel on what basis he thought he was entitled to production of the memorandum, indicating that the Court did not believe that he would be entitled to it if it were a memorandum. Now, defense counsel did not seek to challenge the representation of the Assistant United States Attorney that this was merely a memorandum. He accepted that representation. I think I can say that with confidence, when the record shows, and I refer the Court to Record 153, counsel stating in a colloquy with the Court, the Court, “Mr. Newcomb, how do you hope to bring yourself within 3500 (e)?” And Mr. Newcomb says “I do not hope to bring myself within it. I do not think I belong within it.” And, so, it seems to me that the defense's reliance was on the proposition that the statute doesn't control that there may be some provision for getting it outside the statute, or that the statute is unconstitutional. I say that, in this case, there can be no question of procedure to determine whether the memorandum is in fact a summary or is, perhaps, a substantially verbatim transcript, though it appears to be a summary, because there was no challenge made to the representation that it was a summary. Now, it does not clearly appear that Judge -- from the transcript, at the time of the colloquy, that Judge Dimock read it at that time. There's no statement in the record that it was handed off, so I can't say that he read it at that time, though the record shows that the Assistant told the Court it was there for him to see. I assume that Judge Dimock did, at some point, examine it because he took care to send it forward to the Court of Appeals as a court exhibit so that that Court could examine it. The Court of Appeals did examine it and it found that the internal evidence made clear that it was a summary or memorandum and not a substantially verbatim transcript. This Court, of course, has the -- has that Court's Exhibit 2, the Field Exhibit, before it. And, this Court can consider that internal evidence as well. This Court could also consider whether, if on any theory the memorandum should have been produced, it would serve any purpose to grant a new trial. If it appears on the face of the document that the only information there doesn't add or subtract one whit from what was stated in the supplementary affidavit, which was executed that day and which was made available to the defense, that it couldn't conceivably be of any use. In that circumstance, I would certainly suppose that there would be no purpose in ordering a new trial. Now, I've gone into the facts that I should attempt to make clear in concluding that by emphasizing the facts, I do not mean to suggest in any way that we do not rely basically and as our first contention on the proposition that this was a memorandum or summary and that the statute prohibited turning that over. And, I haven't deem it necessary to attempt to argue further the meaning of the statute and its plain application, it seems to me, here only because the Government's position on that score has been fully elaborated in the preceding case.
Speaker: The Court of Appeals, I take it, notwithstanding these (Inaudible)
Ralph S. Spritzer: Oh, yes.
Speaker: In other words, you just proceed to hold it through the statement throughout the reply (Inaudible)
Ralph S. Spritzer: Well, no, I -- I don't think we did. I think that the point is at least conclusive, however, on the proposition that he -- that he could not now be heard to say, and I don't understand him to say, he could not now be heard to say that -- that it was doubtful whether it was, in fact, what it was represented to be, namely, a summary or contemplation.
Earl Warren: We'll recess now.