Earl Warren: Number 642, Edward Boykin, petitioner, versus Alabama. Mr. Gibbons.
E. Graham Gibbons: Mr. Chief Justice, may it please the Court. I represent Edward Boykin Jr. who is the only man in America that awaits execution for the crime of common law robbery. And if he is permitted to die will be the sixth man to be executed by the State of Alabama in almost 40 years for that crime. This case is before this Court on certiorari to the Supreme Court of Alabama. That court by a four to three decision affirmed five death sentences. Edward Boykin was brought to trial on five separate indictments for robbery. And a plea of guilty was entered and on that plea he was sentenced to death five times. Now, this case as I see it raises three great constitutional issues. The first one is that it violates the Constitution, the Due Process Clause for a conviction to be based upon a plea of guilty where in the record of trial there is no affirmative showing that that plea was voluntarily and understandingly given. Secondly, the imposition of the death penalty for the common law robbery violates the provision of the cruel and unusual Eighth Amendment clause. And thirdly, a statute which allows a jury unfettered discretion in a capital case violates the petitioner's right to due process.
Abe Fortas: Mr. Gibbons --
E. Graham Gibbons: Now --
Abe Fortas: -- may I ask you whether that last point was raised and decided below? I've looked for it and I haven't been able to find it.
E. Graham Gibbons: Yes, it was --
Abe Fortas: If it is --
E. Graham Gibbons: -- raised below.
Abe Fortas: Would you show me where? Would you tell me where it is because I have looked for it and haven't found it?
E. Graham Gibbons: Well, it was raised in my brief, I do not know whether the Supreme Court of Alabama considered it or not. Their decision indicates that they did not. But --
Abe Fortas: There's nothing in there, the decision on it. There's nothing in the papers --
E. Graham Gibbons: No. No, sir. That there is --
Abe Fortas: -- we have before us.
E. Graham Gibbons: There is no treatment in the Supreme Court of Alabama decision as to that point.
Abe Fortas: Alright.
E. Graham Gibbons: Now --
Abe Fortas: I want to be very clear on this Mr. Gibbons because it's a --
E. Graham Gibbons: Yes, sir.
Abe Fortas: -- jurisdictional matter.
E. Graham Gibbons: Well --
Abe Fortas: There is nothing in the papers before us that shows that the point with respect to them -- your argument with respect to the need for standards to guide the jury in imposing a punishment. There's nothing in the papers before us that shows that that was raised and decided below, am I right or wrong about that?
E. Graham Gibbons: I would -- the only thing I can say is that it was raised in the court below. It --
Byron R. White: Well, if your brief here printed in the Supreme Court of Alabama --
E. Graham Gibbons: I don't know.
Byron R. White: I'm not sure you say it's correct.
E. Graham Gibbons: I don't know about whether it is or not.
Speaker: But it was raised in the second cases to follow you.
E. Graham Gibbons: Well, what I was just about to say was that in view of the oral argument on that specific point that's going to be presented in Maxwell against Bishop that in the time limitation that I have, I'm going to address myself to the first two issues that I --
Byron R. White: Oh, is the first issue breaking the law? You don't see that here, do you?
E. Graham Gibbons: Well, it was raised below in this sense that under the automatic appeal statute in Alabama the Supreme Court of Alabama must look at the entire record.
Byron R. White: Oh, its --
E. Graham Gibbons: And certainly it was raised --
Byron R. White: -- they must have know any clearer.
E. Graham Gibbons: Yes, sir.
Byron R. White: That's that the statute?
E. Graham Gibbons: Yes, sir.
William J. Brennan, Jr.: So you would say that any clear -- any thing that we might reverse, they should've noticed?
E. Graham Gibbons: Well, they certainly noted that because three justices in Alabama wanted to reverse on that first issue which I'm raising -- in which I intend to argue about now.
William J. Brennan, Jr.: Well again, did you argue that in your brief before the Supreme Court of Alabama?
E. Graham Gibbons: No, sir. I did not submit that issue in my brief below.
Byron R. White: That was raised by the dissenting --
E. Graham Gibbons: That was raised by the dissenting opinion.
Byron R. White: Sua sponte?
E. Graham Gibbons: Yes, sir.
Speaker: Was there a motion to withdraw the plea here?
E. Graham Gibbons: No, sir.
Speaker: In this case?
E. Graham Gibbons: No, sir. Now, if I may --
Speaker: Represented by a counsel?
E. Graham Gibbons: He had a court appointed attorney. I might explain to the Court here that I'm in the same position you all are because I entered this case at the trial -- at the appellate level. I was -- I was not even in the case until after the sentence was given and everything. Now, addressing myself, if I may to this point that the Due Process Clause requires that a trial record show affirmatively that the plea of guilty was voluntarily and understandingly made, I think there are three points of reasoning that inevitably draw us to that conclusion. The first is and I don't think it's arguable that a plea of guilty must be voluntarily and understandingly made. That's because as we -- I think we all realize that a plea of guilty is an admission of guilt. It's a con -- judicial confession in effect. And certainly the waiver of such a fundamental right to contest guilt to give the prosecution the whole vote so to speak. The waiver of that right is so fundamental that I don't think it's arguable. That it should be voluntarily and understandingly given. Now secondly, that in order to be meaningful, it must be affirmative. And this affirmative procedural step must appear on the record because -- what I'm saying here is this, that if you look at this record right here, you do not know and I do not know whether Edward Boykin entered his plea of guilty voluntarily and understandingly. And yet he is going to have to die because of the barrenness of this record. And it's a simple thing. It -- by analogy it's the same reasoning that this Court used in the Miranda decision. There, there was a question of a waiver. There was a -- and this Court said that if a -- in a trial court, if you're going to introduce an out of court confession then you -- then the record must affirmatively show that that confession was obtained voluntarily and understandingly. The -- the same thing is true that we are asking here. If you're going to rely on a plea of guilty then the record ought to show and -- we wouldn't have this trouble right here. This question wouldn't be before the court. It wouldn't give the trouble to the Supreme Court that it gave them if a -- as -- the same sort of litany that -- that's in the record about indigency. If you had just a trial court determining be ensured that the fellow knew that when he plead guilty, he was subjecting himself to the maximum punishment. Now, I'd like to comment about this --
Speaker: What --
E. Graham Gibbons: -- record.
Speaker: What effect do you think the Alabama procedure has that the -- notwithstanding the plea, there must be a prima facie case made I doubt.
E. Graham Gibbons: Well, I don't think that has too much to do with the -- the issue that I'm trying to speak about here for the reason that that common after the a plea.
Speaker: I know but his plea doesn't become effective, the basis for reasoning, the carrying out of the sentence out that additional requirement being fulfilled, namely it ought to be a prima facie case?
E. Graham Gibbons: Well --
Speaker: Isn't that the Alabama law?
E. Graham Gibbons: No, sir. That's not the Alabama law. The -- the Alabama law is that you put on a prima facie case as a sort of penalty trial where you determine the -- you let the jury see what kind of a case it was. But a plea of guilty in Alabama is conviction of the offense.
Byron R. White: You mean the jury can't -- cannot find the man innocent?
E. Graham Gibbons: That's right.
Byron R. White: Well, its -- that's --
E. Graham Gibbons: But --
Byron R. White: Isn't that your answer?
E. Graham Gibbons: Yes , sir. Now, looking at this record, its 35 pages for which a man's going to die for and all that's in it is an -- the first page is an indictment talking about robbery not the death penalty. It sets bail at $2,500.00. There is a proceeding of determining indigency while the fellow is asked, do you need an attorney and he says no. There is in this record the testimony of the witnesses, the complaining witnesses and then the first time that the death penalty is mentioned is in the almost pro forma instructions of the judge when he gives the jury two forms. If you're going to give him imprisonment, you use this form. If you're going to use death, you use this form. And then at that time the jury goes out and comes back in and Edward Boykin is to die and that's all that this record shows and that's what I'm trying to say today. Now, I just believe that the Constitution Due Process Clause requires that that this affirmative showing be made. I'd like now to turn --
Potter Stewart: Did you -- did I understand that there was no motion at anytime to withdraw the plea of guilty?
E. Graham Gibbons: There was no motion at any time. No, sir.
Potter Stewart: I'm interested in the statement of facts on page 7 of your brief. It indicates that after this conviction and death sentence there was an automatic appeal under Alabama law --
E. Graham Gibbons: Yes, sir. There is.
Potter Stewart: But that the Alabama Court despite the conceded indigency of the petitioner did not appoint counsel on appeal and thereafter when member of this similarly union attempted to represent him, he was told that he could not because he wasn't authorized to practice?
E. Graham Gibbons: Yes, sir.
Potter Stewart: And thereafter when I guess you entered the case. It was too late as you say to raise any issue on motion for a new trial as the statutory time period had elapsed. I'm interested in knowing just what that means.
E. Graham Gibbons: Well, the day of the sentence starts the running of the time when you can file a motion for a new trial and that's --
Potter Stewart: Apparently the trial court neglect it, it actually imposed a sentence, didn't he?
E. Graham Gibbons: Well --
Potter Stewart: They're to set the date?
E. Graham Gibbons: He -- he didn't set the date until the next day when the defendant was finally brought back in for proper sentencing as to form. But the 30-day limitation run -- started running on the day of sentence which is 21st of September. Well now, I didn't get in this case until the 27th of October when a friend of mine told me that he want -- he couldn't prosecute the appeal and would I take it and that time I got into it. But any sort of motion for a new trial, the grounds, excessiveness of that sort of thing, that's all waived unless you raise it on a motion for a new trial.
Potter Stewart: And that must be made within 30 days of the sentence?
E. Graham Gibbons: Yes, sir.
Potter Stewart: And the --
E. Graham Gibbons: You see, the automatic appeal statute in Alabama came prior or was enacted prior to Gideon against Wainwright about this counsel but you have an automatic appeal but you'd -- you don't get an automatic attorney.
Potter Stewart: Uhmm-mm.
E. Graham Gibbons: On that appeal, you've got to ask for it.
Potter Stewart: And by the time he had a lawyer, the 30-day period had elapsed.
E. Graham Gibbons: Yes, sir.
Potter Stewart: And can you tell us in a word what might have been done if the 30-day period had not elapsed?
E. Graham Gibbons: Well, a motion for a new trial and some of the grounds I'm raising now --
Potter Stewart: About what, which one?
E. Graham Gibbons: But principally the excessiveness of the penalty in the light of the offense. Nobody, nobody expected -- I can only conjecture about this record just as anybody can. But Alabama gives the penalty for robbery about once every eight years.
Potter Stewart: And still, if we can just for a moment confine ourselves, if you're willing to, to the question I asked, what could've been done within than 30-day period? That could not have been done after the --
E. Graham Gibbons: A motion for a new trial could have been filed and heard by the trial court.
Potter Stewart: Because he did have trial counsel, did he?
E. Graham Gibbons: He had court appointed counsel for the trial.
Potter Stewart: Yes, yes, it was appointed by the court, that he had trial counsel.
E. Graham Gibbons: His duties under Alabama practice are over when the Senate comes in.
Potter Stewart: It doesn't embrace any duties to make a motion for a new trial, does it?
E. Graham Gibbons: Well, it's the view that attorney's take. I personally take the view that it goes all the way through parole. If -- if he needs help, even after he gets parole, if he gets a sentence but technically or by application, the trial appointed -- court appointed attorney's duties are --
Potter Stewart: Yeah -- but.
E. Graham Gibbons: Oh!
Potter Stewart: -- practice down there. Well now, I suppose after the sentence, it would've been too late then to withdraw the plea of guilty or would it not?
E. Graham Gibbons: I -- I believe it would, yes.
Potter Stewart: That has to -- a motion to withdraw of plea of guilty has to be made before sentence is --
E. Graham Gibbons: If any -- before submission to the jury. Now, in -- I'd like to address my further argument to the second point and that is the question of applying the provision of the Eighth Amendment prescription, approval and unusual against the death -- against the offense of a common law robbery. Now, this is a direct attack upon Title 14, Section 415 of the Code of Alabama which is the penalty statute for the common offense of robbery and we all know that the common law offense of robbery is the its essential's elements are the taking of property with -- from a person with the violence or with a threat of violence. Now, the attack on this statute is because the breadth and range of it, a simple assault with a larceny can give you the death penalty under this statute. Now, in application of this provision of the Eighth Amendment, this Court has indicated certain standards or certain things that they look at. One of them is that it's not a static concept. That's its not a non-progressive thing that it moves with the times and that they've in -- even indicated -- you have even indicated in an -- a more enlightened society, it might encompass greater and greater things and I am saying to this Court today that Alabama is the only State that has this common law offense of robbery with the death penalty. And I submit that in the light of this Court's decisions, decisions such as Weems 60 years ago when this Court knocked down a punishment where a feller -- he falsified some Government documents and he got 12 years imprisonment and loss of his civil rights. This Court at that time 1910 said that that one of the standards is the disproportionate, disproportionality of the offense with the punished. Now, looking directly at Alabama, Alabama -- the crime of unpremeditated murder with malice in Alabama, the maximum punishment is life imprisonment yet for larceny, and a simple assault, you can get the death penalty. I respectfully submit that that this standard of disproportionality is applicable to Edward Boykin.
Hugo L. Black: You mean robbery, don't you?
E. Graham Gibbons: Yes, sir. Robbery, common law robbery as it is.
Hugo L. Black: What's the difference between common law robbery -- what is it that the other states have that Alabama doesn't have?
E. Graham Gibbons: Well, the other states have a statutory form of robbery classifying it in aggravation such as armed robbery.
Hugo L. Black: Which adds what to attacking a man, threatening with a weapon, threatening to kill him and so forth, and talking his money, what does it add to that, the other states?
E. Graham Gibbons: Well, it adds the description of aggravation.
Hugo L. Black: The aggra -- I mean, what conduct, what does he have to do in addition to that?
E. Graham Gibbons: Well, in a statutorily -- in an armed robbery statute he has to be armed or he has to kill somebody or whatever classification or qualification these statutes give it.
Hugo L. Black: Well all this common -- all statutory robberies as I understand it based on the fact that one meets another or find him, threatened him with a weapon, if he doesn't give him his property and takes it away from him or tries to, isn't that statutory robbery as well as common law robbery?
E. Graham Gibbons: No, sir. In common law robbery you can have conceivably a school boy in a corridor, in a high school in Alabama can snatch a book away from another student and under the statute in Alabama he can get death.
Hugo L. Black: That's conceivable. Did you ever hear of a thing like this?
E. Graham Gibbons: No, sir. I never have nor have I ever heard of really in terms of thinking that a feller who didn't kill anybody wouldn't get death, wouldn't sacrifice his own life for it.
Hugo L. Black: You mean, you've never heard of anybody being convicted robbery without killing somebody?
E. Graham Gibbons: No, sir. I'm saying that it is shocking to think even under the Judeo-Christian concepts that we work on that a life must be taken when no life was --
Hugo L. Black: But that --
E. Graham Gibbons: -- was taken.
Hugo L. Black: I don't know what's the custom now, but it certainly it was --
E. Graham Gibbons: Well --
Hugo L. Black: -- 50 years ago, it was said that --
E. Graham Gibbons: Well Your Honor, I am not up here saying that robbery is not a serious crime. It is most serious but we got to recognize that life is a fundamental thing, life is a fundamental right too.
Hugo L. Black: Each life.
E. Graham Gibbons: Each life. Yes, sir.
Hugo L. Black: The victim and the person who does it.
E. Graham Gibbons: Yes, sir. They --
Hugo L. Black: They threatened victim, his life's pretty dear too, isn't it.
E. Graham Gibbons: Most dear.
Potter Stewart: Mr. Gibbons, the printed appendix doesn't contain any transcript at all of how this jury was qualified the voir dire of the jury, is that available anywhere? Is there a typewritten transcript to that in the original record?
Hugo L. Black: It is not available and assuming that the practice is as it -- as I know it to be it was not transcribed.
Potter Stewart: Can you -- I have in mind this -- perhaps you might guess the decision of this Court in the Witherspoon case --
E. Graham Gibbons: Witherspoon. Yes, sir.
Potter Stewart: -- Witherspoon against Illinois, you make no contention under that decision but it occurred to me that there might well be one to make.
E. Graham Gibbons: That -- that maybe so but the record here doesn't disclose, I mean I know or I can -- it's conjecture, I don't want to go outside the record --
Potter Stewart: Well, what's the --
E. Graham Gibbons: -- but the practice is, to qualify them as -- have they been doing for a long time. And that is if you've got -- I think -- I think if it appeared in the record, you would have a contravention with the Witherspoon case.
Potter Stewart: Does the -- do the statutes or laws or case law of Alabama with respect to qualifying a jury in a capital case throw any light on this question?
E. Graham Gibbons: Yes, sir.
Potter Stewart: What did they --?
E. Graham Gibbons: There --
Potter Stewart: Scoops -- what's -- what's the purport of them?
E. Graham Gibbons: Oh, the -- they hold that it's a challenge for cause if a perspective juror has any hesitancy in giving the death penalty.
Potter Stewart: It occurs to me that you representing a client under sentence of death have put a good many eggs in one basket and if you have a Witherspoon claim, who do you make it or perhaps federal habeas corpus is a more appropriate place for that and perhaps you've considered that.
Abe Fortas: Mr. Gibbons, as I understand it, you are here attacking the constitutionality of the Alabama statute on its face that is to say you're saying that the statute is bad apart from its -- the facts of this particular case would cause a statute authorizes the jury to fix death sentence in the case of Robert and you point out that Alabama used the common law definition of robbery. Under -- I don't remember saying in your brief, a reference to just how Alabama views the definition of the common law crime of robbery. From your argument I take it that any sort of unlawful taking, they need force --
E. Graham Gibbons: A taking with violence or with the threat of violence.
Abe Fortas: Alright, now are there states in which the crime of armed robbery is punishable by death.
E. Graham Gibbons: Yes, sir.
Abe Fortas: And what happened here was in fact an armed robbery, there is no dispute about that is there that is to say that Boykin was carrying a gun. Boykin did in fact use the gun in the robbery. Boykin did in fact discharge the gun and in fact a girl in the store was wounded in the calf of her leg, am I correct?
E. Graham Gibbons: Yes, sir. That is correct.
Abe Fortas: Now, that would be armed robbery within the definition of other states, right?
E. Graham Gibbons: Yes, sir.
Abe Fortas: Your point however is that it's not necessary -- is your point, that its not necessary for us to reach the constitutionality of the armed robbery death penalty statutes because you are asking us to consider this statute on its phase without reference to the facts of this particular case, is that right?
E. Graham Gibbons: That's correct sir. A -- aside from what this Court may think of murder, say, as justifying the death penalty, the question before the Court as I see it and the issue I'm trying to make is that the death penalty for robbery is cruel and unusual, is disproportionate, it -- it comes in a time when no other state except Alabama applies and it --
Abe Fortas: But here your problem however is that here you have an armed robbery and you have an armed robbery in the course of which somebody -- the -- Boykin did shoot and somebody was wounded but its not a -- just a simple unaggravated robbery. Your attack must be and well I suppose you wouldn't be averse to attacking that as a basis for the death penalty but the other prong of your attack I take is that the statute is bad or over breadth.
E. Graham Gibbons: Is bad on its face because of the expanse and range to which it can be applied. Mr. Chief Justice, may I reserve whatever time I have left for rebuttal.
Earl Warren: You may, you may Mr. --
E. Graham Gibbons: Thank you.
Earl Warren: Mr. Clark.
David W. Clark: Mr. Chief Justice, may it please the Court. In April and May of 1966, Mobile, Alabama experienced a series of robbery. One Edward Boykin was arrested. The grand jury returned five indictments against him for robbery. I would like to point out the time element and the space of the city involved. These five robberies took place from April the 23rd 1966. That was the first one. There was one on May the 3rd, one on May the 5th, one on May the 8th, one on May the 8th. The manner of operation was that this young man went into either grocery store or drugstore service station and would exhibit a pistol and commit robbery and then when he would leave, he fired the pistol so nobody would follow him out. There was one wounding of a little girl. I believe, the evidence shows that he fired into the floor, the bullet ricocheted and hit this young lady in the leg. Now, at the time of the trial the court appointed, one Evan Austill, is the court appointed attorney to represent --
Hugo L. Black: What was his name?
David W. Clark: Evan Austill, A-U-S-T-I double L judge. His father and he had practiced together. The father has been a member of the bar for many years. After --
William J. Brennan, Jr.: I gather that you don't raise the question of the -- these questions being properly presented or do you?
David W. Clark: No, sir. I --
William J. Brennan, Jr.: You don't mention it on your brief?
David W. Clark: I'm not the going to but I would stand on my brief, I think it explains some of it Your Honor.
Byron R. White: Do you raise -- do you speak of -- about that in your brief? No. It was just the jurisdictional question, it was not just a --
David W. Clark: Which particular question was that Your Honor?
Byron R. White: Whether we can reach questions which were not raised and decided under your State Supreme Court?
David W. Clark: Well, I feel that under this Section, Title 15, Section 382, 1-13 wherein the Supreme Court considered all the things raised at the trial that you could do that sir.
Potter Stewart: As far as it appears from what I've been able to a glean, of course we don't have the briefs of the parties before the Supreme Court before us but really nothing at all was raised at the trial. There was simply a guilty plea and then as counsel has said, five sentences of death on one -- on this petitioner and that's all that appears plus some evidence of his -- of the conduct. And then in the Supreme Court of Alabama all that appears that they considered of the questions raised here was whether or not the trial court failed to protect the petitioner's right to due process for -- with regard to his plea of guilty as you put it. And that's the only thing they considered.
David W. Clark: That's right.
Potter Stewart: And neither one of the other two questions so far as I can find out was raised or considered or decided in any of the courts of Alabama. Is -- am I wrong about that?
David W. Clark: No, sir. You are correct that it could have been considered although they did not mentioned under that Title 15, Section 382 wherein --
Potter Stewart: It wasn't raised at the trial?
David W. Clark: No, sir.
Potter Stewart: Either one of these two odd questions.
David W. Clark: No, sir. Not raised at the trial. A while ago you raised the question about the Witherspoon matter --
Potter Stewart: Yes.
David W. Clark: Whether Witherspoon applies to this. I would like to call Your Honor's attention to appendix page 10 and 11 wherein Mr. Signey Flagger of the Assistant District Attorney prosecuting the case pointed out they had 12 jurors sitting in a box, would they be alright in the defendant there said they would and his attorney, Mr. Austill said the --
Thurgood Marshall: Well, Mr. Clark is there anything in the record to show that any one of those jurors have asked any question at all about anything at any time?
David W. Clark: No, sir. This is the entire matter and I have the original record here and nothing was said by qualifying them as to death penalty.
Thurgood Marshall: Well --
David W. Clark: It was an agreed jury. Both sides agreed that they would be --
Thurgood Marshall: We are even not very qualified, don't we? We don't even know where the other 21 though?
David W. Clark: They want a jury.
Thurgood Marshall: We don't even know what they can hear? Nobody questioned him at all, are you -- what is the practice, you just pick 12 people and put them in a jury box?
David W. Clark: Yes, sir. You pick 12 and then you qualify them and then --
Thurgood Marshall: But where is the qualification in this record.
David W. Clark: By agreement, both sides agreed that they --
Thurgood Marshall: Now the record says it -- well, the judge says, If I'm correct, there are 12 people there. That's what he says on page 10, If I'm correct that there are 12 on the panel of jurors seated in the jury box. And he says, Is that satisfy -- satisfactory? Both sides said, Yes.
David W. Clark: That Mr. Flagger was one of the sides and that he is a District Attorney there prosecuting --
Thurgood Marshall: Him. And then isn't it also true that at the end the judge said, Are you the same jury, was here yesterday?
David W. Clark: Well, Your Honor --
Thurgood Marshall: He said --
David W. Clark: -- jurors are selected for a week, the --
Thurgood Marshall: Sir?
David W. Clark: The juries in Alabama are selected for that week of --
Thurgood Marshall: The same 12?
David W. Clark: No, sir.
Thurgood Marshall: Well, he said, Young man I had to call you back as applied and misses something that acknowledge not where they just -- near the end there, well, he says, You were here. I'll get the page in just a moment.
Hugo L. Black: How is this jury selected? The ordinary method is --
David W. Clark: Yes, sir. They argue --
Hugo L. Black: -- at the beginning of the week, the sheriff brings in jurors names --
David W. Clark: Yes, sir.
Hugo L. Black: They're selected --
David W. Clark: From the jury roll.
Hugo L. Black: And the judge then qualifies them as to whether or not they're able to serve the jurors on account of their age.
David W. Clark: That -- that is correct. There was -- already been selected.
Hugo L. Black: And then during the week, they divide it up and the man hasn't decided a question which says special qualification in regard to a particular case, they ask questions?
David W. Clark: That is correct. Did this -- the jury had been --
Hugo L. Black: Or that he was qualified at the beginning of the week, I assume.
David W. Clark: Yes, this one had been qualified as to that.
Thurgood Marshall: Well, on page 32, some of you gentlemen were on the jury yesterday. What's the meaning of that, it varies from day to day?
David W. Clark: Punishment?
Thurgood Marshall: Does it vary or -- I thought you said the same 12 seat throughout the week?
David W. Clark: No, sir. I said that the panel that -- they call at least 50 jurors.
Thurgood Marshall: Well, just one more question. Is -- is there anything in this record that shows that the court explained to the jury the range of sentence?
David W. Clark: No, sir. They all charged there was not.
Thurgood Marshall: So, the jury did not have any idea at all?
David W. Clark: I -- I beg your pardon, may I quote from the actual record, record page 30. He said, If that board, he gave a definition of robbery. Now, robbery once again gentlemen is a felonious taking of money or goods of value from another against his will and without his permission by violence of putting him in fear. That boils it down in a nutshell just what robbery is. Now, it carries from 10 years minimum in the penitentiary to the supreme penalty of death by electrocution.
Thurgood Marshall: What page is that on?
David W. Clark: That is on -- that's the old rule charge --
William J. Brennan, Jr.: It's page 32.
David W. Clark: The page is -- is it on page 32 -- page 32 in the appendix.
Thurgood Marshall: Well, I -- what is there that you just read that shows why you should give death in one case and ten years in another, that's my point?
David W. Clark: Yes, sir.
Thurgood Marshall: Is there anything other than that?
David W. Clark: No, there was no direction as to how you would do that. However, this Court pointed out in I believe it was Giaccio versus Pennsylvania, I think it was one of them, that they could do that. A jury could find the degree. There was nothing prohibiting that. Now, I would point out that in Alabama, robbery is a capital offense. That of course means it carries a death penalty and the -- they can, to a lesser degree give anywhere from death on down to 10 years. And that's left to the jurors discretion now in spite of no instructions, you do have this, that this jury has heard the entire trial. They have been able to determine how severe or a case of robbery this is in this particular instance that there was a gun used, there was violence and they confessed on that. They are the best ones to judge how severe the sentence should be.
Earl Warren: The -- the entire trial is between pages 10 and page 31 --
David W. Clark: Yes, --
Earl Warren: -- of the record.
David W. Clark: -- that is the entire evidence they put on. In Alabama when you have a plea of guilty such as we had here, they put on a prima facie case. Now in all five of these cases, I think they called seven witnesses. That's also required. You have the man pleading guilty which is judicial confession to that effect. He had a plea of guilty. You have that plus the prima facie case made out by the state. We maintain that sufficient to put it to the jury.
Abe Fortas: Mr. Clark I know that on the transcript on 33, as the judge says, it's not in the hands of -- it is now in the hands of the state this have pronounced the sentence. And it is up to the Governor if he cares to do anything about it. It's not up to the trial judge. Now, could we -- could you tell us whether he has -- whether there has been appeal to the Governor in this case?
David W. Clark: No, sir. There has not been one yet because of this petitioner for this honorable court. Had there not been one to this Court, then about two or three days before his execution there would -- been a hearing in the governor's office, a clemency hearing.
Abe Fortas: Is that automatic or?
David W. Clark: Yes, sir. That is automatic. At this hearing he may appear by himself, by attorney, his family, his minister. I have been at some of them that they've had as many as 35 or 40 people to speak for this man and ask that his case be commuted to life imprisonment. But as you pointed out that there has been on a district --
Abe Fortas: When was the last execution in Alabama? They didn't have one last year, did you have?
David W. Clark: No, sir.
Abe Fortas: I remember --
David W. Clark: That's has been several years.
Abe Fortas: -- in the entire nation.
David W. Clark: In my brief I've pointed out one that was in 1964 that I handled that case through the Alabama Supreme Court and it went on to electrocution. That incidentally was one for robbery.
Potter Stewart: It also involved a very horrible killing too, didn't it?
David W. Clark: Yes, sir. But may I explain that, Your Honor. In Alabama --
Potter Stewart: But you did in your brief or --
David W. Clark: Yes, sir.
Potter Stewart: Certainly, you can explain it freely.
David W. Clark: Well, I -- I would have politely. But in that particular case, there was a robbery and also that the man committed a murder while -- during this robbery. It just happen that he was going with this young lady, he was a married man with a family and as the district attorney determined in that case that there were -- had two indictment, one for murder and one for robbery that it would be better to prosecute under robbery. In Alabama they regard robbery as a serious offense. Now a good attorney could have possibly --
Abe Fortas: You don't suppose the --
David W. Clark: -- attacked the young lady's reputation and maybe they'd been merely held manslaughter conviction.
Potter Stewart: But all of the -- I gather that the -- all of the circumstances of the robbery including this very gruesome --
David W. Clark: All they did was --
Potter Stewart: -- it was a bizarre sort of killing where it was brought before the jury, is that correct?
David W. Clark: Yes, sir.
Potter Stewart: What he took was the young woman's car after killing.
David W. Clark: Car, jewelry and some money.
Potter Stewart: Yes.
William J. Brennan, Jr.: May I ask Mr. Clark, is your automatic appeal statute, would it apply had Boykin got a prison sentence instead of the death sentence?
David W. Clark: No, sir. That applies merely to the --
William J. Brennan, Jr.: Only whether --
David W. Clark: -- death sentence. Yes, sir. He could've asked for an appeal and in granting one, also an attorney, a transcript of the record. Now --
William J. Brennan, Jr.: And I gather that special statute is searching in the record, does that apply only with the automatic appeal statute applies?
David W. Clark: No, sir. The appellate courts had that duty in our case --
William J. Brennan, Jr.: In all cases?
David W. Clark: That's --
William J. Brennan, Jr.: All criminal pleadings.
David W. Clark: -- look into the record.
William J. Brennan, Jr.: I see.
David W. Clark: Now the -- pardon. There was something brought out about a motion for a new trial, usually that's done by the attorney who is appointed to handle the defense of that trial. Also in a case which results in the death penalty, the same attorney goes right onto the Supreme Court. In one form, it takes back, however, Mr. Gibbons is representing the defendant on appeal to the Supreme Court of Alabama and on a certiorari to this Court.
Abe Fortas: May I ask you further sir, let's suppose that a defendant were tried on one count of robbery then the jury has a problem of fixing the punishment, is there any -- I don't suppose there's anything like a pre-sentence report or any evidence introduced as to his history, is there? What is your practice? Is there any effort to duplicate in front of the jury what is in the --
David W. Clark: No, sir.
Abe Fortas: -- in the ordinary pre-sentence report by the man's family background and what kind of person he's been and whether this is an isolated incident or part of a long history of crime, the sort that a judge usually ask before him?
David W. Clark: No, sir. Not in this type of case because jury returns a verdict. However, the defendant could put on character witnesses, things of that nature during the trial. Yes, sir.
Abe Fortas: During the trial?
David W. Clark: Yes, sir. He could do that.
Abe Fortas: But suppose he had a led an exemplary life and suppose his counsel decided that for strategic reasons that he didn't want to get the question of guilt whether you did this or not makes up with the facts about the man's life which is of course kind of thing, conceivable, I'd badly described it but --
David W. Clark: Yes.
Abe Fortas: -- sure, you'll agree that it is conceivable that a lawyer might make a strategic judgment of that sort. Then the jury would have to consider punishment without anything before it as to what kind of man this is.
David W. Clark: That is true. That would be a matter of trial strategy and --
Abe Fortas: Well --
David W. Clark: -- and I don't think the --
Abe Fortas: -- she might be a very, very critical one in which the lawyer makes the judgment in good faith and with professional competence that he later desperately regrets.
David W. Clark: Yes, sir.
Abe Fortas: And his client therefore -- client is electrocuted, he probably regrets that even more.
David W. Clark: I feel that that this case here represents one of those. This attorney entered a plea of guilty for the man and I suppose assuming that there would a prison sentence. What brought this on as I pointed out earlier is there had been a series of robberies and the jury returned this verdict.
Potter Stewart: Now, this trial took place September of 1966.
David W. Clark: That is correct, sir.
Potter Stewart: And that's when the jury was in -- the panel sworn as indicated on page 10 of the appendix.
David W. Clark: Correct.
Potter Stewart: Long before this Court's decision in the Witherspoon case, so that the defense counsel was not aware of any right to challenge the jury on the basis -- the constitutional basis on which Witherspoon was decided, was corrected?
David W. Clark: That is true. However, he did have those challenges that were set out in Title 30, Section 55 and 57 and in the argument last week, I pointed out that if he had fixed opinion against capital punishment, could be the one on the Section 57. However --
Potter Stewart: How can you --
David W. Clark: We contend that they waived that.
Potter Stewart: Well --
David W. Clark: It was by agree --
Potter Stewart: It wasn't a known waiver though was it? It couldn't have been any known waiver of any right under the Witherspoon case because the Witherspoon case hadn't been decided.
David W. Clark: And that is another thing I would like to point out to this Court. This man still has his opportunity to go back before the state court on coram nobis and bring these things up. At that time he would be appointed an attorney. They would have a full hearing on these matters, the identical matters brought up now.
Hugo L. Black: Is it still the law in Alabama that good character alone could be charged to the jury sufficient to generate a reasonable doubt of guilt?
David W. Clark: Yes, sir. That -- that's still the law.
Potter Stewart: Well, here there was a plea of guilt though so that would --
David W. Clark: Yes, sir. That would be --
Potter Stewart: -- hardly --
Earl Warren: Is a court not inquired into the voluntariness of a plea in Alabama?
David W. Clark: Yes, sir. They should. The record does not reflect that here.
Earl Warren: Well, wouldn't you think that it should be done by all means in a capital case where a man's life is at stake?
David W. Clark: Yes, sir.
Earl Warren: Why wasn't it done here?
David W. Clark: I don't know that it wasn't done Your Honor. It's just not recorded as such.
Earl Warren: Well, can you tell us whether it was or was not done?
David W. Clark: No, sir. I was not present at the trial. However, I'd like to point out to Your Honor, you have Rule 11, your federal rules of criminal procedure that require such warning to the defendant and while no particular writs shouldn't be observed by the trial court such as a form finding a recitation of plea was entered with understanding and affirmed the duty, nonetheless exists on the part of the trial court to advise the accused fully. And that's recited from Hulsey versus United States, that's 369 F.2d 284. So apparently in your federal court volume, on your federal rules you have the duty. You don't have to find, it simply show that in the record. And there is no showing that this man was not advised to the serious and sentence relief. Besides that he had an attorney to represent him.
Hugo L. Black: Who tried the case?
David W. Clark: This one -- the particular one was before Judge Gillard.
Hugo L. Black: How long has he been a judge?
David W. Clark: Judge Gillard has been on the bench I think about 6 or 8 years as a circuit judge. At one time he serves as a probe judge also.
Hugo L. Black: What are his initials?
David W. Clark: Walter Gillard, I believe. And I don't the middle initial.
Hugo L. Black: Was he in the span of Palmer Gillard?
David W. Clark: Palmer, his brother I believe and his father was I believe Palmer Gilliard also. He was our senior member of the bar. He died at the age of 103. Now --
Potter Stewart: The judge -- I'm looking at page 33 of the printed appendix, in sentencing the petitioner indicated at least by negative implication of you will that he had some discretion not to follow the jury's recommendation of a death sentence. Is that right?
David W. Clark: Yes --
Potter Stewart: Is it --
David W. Clark: -- they as a --
Potter Stewart: He says in case number 15520, the court will impose a sentence according to the verdict of the jury. And in case number 15521, the court again will follow the verdict of the jury. So on and so -- which leads to a possible implication that he didn't have a duty to do so. Am I -- what is the law of Alabama on that?
David W. Clark: Notwithstanding the verdict, I believe is that the judge could send it back?
Potter Stewart: Send it back to whom?
David W. Clark: Yes, sir.
Potter Stewart: For what?
David W. Clark: The jury didn't agree did a predetermined sentence.
Potter Stewart: I wonder what kind of instructions.
David W. Clark: He could instruct the jury just on that matter. He thought it was -- did not warrant that penalty. However in Alabama your death penalty is provided of robbery and --
Abe Fortas: Well --
David W. Clark: He'd already instructed them that --
Potter Stewart: If they could --
David W. Clark: They have thought --
Potter Stewart: -- that they did have that option.
Abe Fortas: Now, is there any authority from that? I don't -- as I read this perhaps I'm wrong, perhaps it's a little different from the way my Brother Stewart reads it. I read it all this judge thought he could is to make a recommendation for clemency which will be to the Governor. When you read the first couple of sentences of what he said there but can I know judge's -- trial judges can do things that aren't always strictly according to the book I suppose but is there any authority in the law for him to send the case back to the jury and ask him to tell, instruct them to reconsider their verdict.
David W. Clark: I don't have it before me Your Honor but there have been cases where they have done that.
Abe Fortas: They have done it --
David W. Clark: Yes, sir.
Abe Fortas: -- but you don't know of any --
David W. Clark: No, sir. I don't have --
Abe Fortas: -- statutory or case law --
David W. Clark: No, sir.
Abe Fortas: -- that approves it.
David W. Clark: Now there was something brought out in the brief about the finding of guilty by the jury and the fixing of the sentence by that same jury violated his constitutional rights. I believe this honorable court in a footnote in Giaccio versus Pennsylvania held that in so holding we intend to cast no doubt whatever on the constitutionality of the settled practice in many states to lead the juries fixing defendant's guilty crime, the power to fix punishment within legally prescribed limits. Now, I found two cases when courts had followed that one is in California, In re Anderson, California Supreme Court on November 18th of 1968 filed it. That was in a murder case however -- but they had -- they under I believe Section 160 of their Criminal Code, the jury could find the person guilty of murder in the first degree and under the Section 160.1 the same jury could fix his punishment at either death or life imprisonment. And Supreme Court of California held that that was no violation of his constitutional rights and this same thing was followed in the Supreme Court of Washington, Washington versus Smith in the Washington Supreme Court on October 29th, 1968. And the last paragraph of that opinion I think is a burden here. The defendant's argument against the death sentence on moral and practical grounds are persuasive however they should be addressed to the legislature. If as they maintain a majority of people today are impose to the death penalty an effort to get the legislature to eliminate it should have a considerable chance of success. That's our contention if there's objection to the death penalty. The proper way is to take that through the legislature and this --
Abe Fortas: May I -- I'm sorry to ask you so many questions. May I ask you a question about the nature of the trial here, now robbery is a capital offense?
David W. Clark: That is correct.
Abe Fortas: And the court does not -- does the court accept the guilty without more or is this a trial on the question of guilt? Was the jury informed that the defendant had pleaded guilty?
David W. Clark: Yes, sir. They were informed and the jury --
Abe Fortas: That doesn't appear here, does it? But they are informed that the defendant had pleaded guilty?
David W. Clark: Yes, sir. It doesn't appear from the record here but when there has been a plea of guilty in Alabama the jury hears a prima facie case to determine the seriousness of the crime.
Abe Fortas: To deter -- in other words --
David W. Clark: To determine the sentence.
Abe Fortas: So do you argue that in the sense, this is not a unitary trial, what happened here in the sense that this trial was on the question of punishment?
David W. Clark: Yes, sir. It was meant -- principally the question of punishment. There had been a plea of guilty already.
Abe Fortas: And that that plea of guilty is accepted in --
David W. Clark: Yes, sir. That --
Abe Fortas: -- in Alabama even if -- suppose this had been a murder case, is it a custom on Alabama to accept a plea of guilty?
David W. Clark: Usually when they enter a plea of guilty to murder they'll enter a plea of murder to the second degree which would cover the life sentence. But --
Abe Fortas: But it's clear -- you don't know of any situation --
David W. Clark: No, sir. They --
Abe Fortas: -- a plea of --
David W. Clark: -- to track them --
Abe Fortas: -- guilt.
David W. Clark: -- first degree murder.
Abe Fortas: They -- they go to trial?
David W. Clark: They go to trial. Yes, sir.
Abe Fortas: And they don't accept the plea of guilty.
David W. Clark: No, sir.
Abe Fortas: But despite the fact that the ultimate result may be the same here namely electrocution. In a robbery case, the court will accept and lay before the jury the plea of guilty.
David W. Clark: Yes, sir.
Abe Fortas: Is that correct?
Potter Stewart: Are you saying it is a matter of law, the court is not allowed to accept a plea of guilty to first degree murder of Alabama or are you just telling that that's the practice?
David W. Clark: I know of no case in which that has happened Your Honor that they held --
Potter Stewart: Well, for example in the state that -- with which I'm most familiar as a matter of law, a trial court is limited in accepting, that being allowed to accept a plea of guilty to first degree. Is there any such law in your state?
David W. Clark: No, sir. I know of none but I had in practice --
Potter Stewart: You just mean as a matter of practice they cup a plea to second degree murder?
David W. Clark: That's correct.
Hugo L. Black: Well, if they plead guilty to murder in the first degree unless it's changed that time, was it?
David W. Clark: Yes, sir.
Hugo L. Black: Is the law -- the judge is required to call a jury, give the jury enough evidence to show a prima facie case just that number of witnesses and to show -- give the jury enough information on which it supposedly he could -- they could rest a verdict. And that's the way it's done and by the first -- it was done in that way in the first place.
David W. Clark: That is not.
Hugo L. Black: Has that been changed?
David W. Clark: No, sir. I believe Mr. Justice Black, that's the answer to my question.
Abe Fortas: So it's not just a penalty to trial as perhaps you stated and I didn't get the implications of it. This is something more than just a penalty trial, its penalty trial plus a trial in which a prima facie case is made that the guilty plea is warranted?
David W. Clark: Yes, you could not have the conviction without putting on a prima facie case.
Byron R. White: But could the jury after the prima facie case goes in and the judge says lets go the jury, is the jury permitted to find him innocent?
David W. Clark: No, sir. It would not be on this robbery.
Byron R. White: And didn't the jury's verdict actually recite that the jury found him guilty as charged, the indictment on his plea of guilty.
David W. Clark: Yes, sir.
Byron R. White: What the verdict actually recites.
David W. Clark: I think that's what this is.
Speaker: What happened if the judge finds a prima facie case not made out?
David W. Clark: He could so instruct the jury.
Speaker: Instruct the jury of what?
David W. Clark: That no prima facie case was made out.
Speaker: Therefore --
David W. Clark: Then I'll assume the defense counsel would then move for a directive verdict.
Abe Fortas: After a plea of guilty?
Potter Stewart: After a plea of guilty?
David W. Clark: That would taint the --
Speaker: What I mean is, would that be -- is that ever happened?
David W. Clark: No, sir. Not to my knowledge. Prima facie case wouldn't take too much to put on Your Honor just one or two witnesses at the most.
Hugo L. Black: Well, I have a very vivid recollection of that practice, I thought I was appointed and the -- it was -- a jury was called, a jury was selected, I had a trade whereby he was not to get this, the jury came back and tried to defy the court's order. They wanted to give him a death sentence on a prima facie case and the judge find -- they told them they could give it to him but he set it aside.
David W. Clark: Yes, sir. That --
Hugo L. Black: That's all they accepted.
David W. Clark: That's what I mentioned a while ago, would it satisfy --
Hugo L. Black: That is the practice -- that was the practice then to my knowledge.
Earl Warren: Mr. Clark, I noticed that on page 25 of the petitioner's brief that he raises a question, a guilty plea to be effective must be made voluntarily, knowingly and intelligently. And he says a trial judge has an affirmative constitutional duty to ascertain whether or not a guilty plea was voluntarily made.
David W. Clark: Yes, sir.
Earl Warren: Now, if we take this record as it is in this transcript, there is nothing to indicate that there was anything done by the Court to determine whether it was voluntarily made. Must we assume that this is all that the Court went on?
David W. Clark: Yes of course they're substantially the same as the original record.
Earl Warren: So if we --
David W. Clark: However -- oh, you -- I get what you mean sir. No, sir. You are assuming that he did not because it does not appear in the record, is that correct?
Earl Warren: Yes.
Abe Fortas: Yes.
Earl Warren: Are we entitled this --
David W. Clark: And I believe the case cite --
Earl Warren: -- that we must decide it on this record, that that's all there is on that subject matter.
David W. Clark: Yes, sir. Now the case of O'Connor versus Cochran that he cited in support of that had to do with the confession I believe but -- I did cite a case wherein it -- there was no particular format that they had to use or nothing -- in the effect on --
Earl Warren: If it isn't a question of format, there was absolutely nothing here, that's the problem, absolutely nothing. Now, is there anything in the record that we can consider to negate this statement that a trial judge has an affirmative constitutional duty to ascertain whether or not a guilty plea was voluntarily made?
David W. Clark: No, sir. But all it appears there is not shown in the record, exactly the questions he asked.
Earl Warren: Well --
David W. Clark: If he --
Earl Warren: Well, if we decide this issue, this particular issue, are we entitled to decide it fairly on what is in this transcript and nothing more?
David W. Clark: Yes, sir. That's -- that's all the spoken and written words that were transcribed and put in the record either in the record that it was before the Alabama Supreme Court of this Honorable Court. However, as I've pointed and I cited one case that there's nothing that requires to my knowledge that it appear in the record that he did so advised and in fact say, Mr. Boykin, you know that you can get the death penalty.
Earl Warren: Well, I wasn't asking about your law, I was asking about the facts in this case. This is all we have to go.
David W. Clark: Yes, sir.
Earl Warren: Very well.
David W. Clark: That's correct. Your Honor I believe that that in my brief explained my points and I thank you for your --
Earl Warren: Mr. Gibbons.
E. Graham Gibbons: Mr. Chief Justice, may it please the Court. I have just a couple of comments in rebuttal. One is with regard to the post-conviction remedy that the Attorney General suggests that Edward Boykin might follow. I -- when I get back to Mobile, I might be able to think of ten or eleven more, but I can think of three right now. One is that he might be dead before somebody gets interested in filing a post-conviction remedy. The second is that in a post -- in a post-conviction remedy --
Hugo L. Black: Isn't the sentence had been stayed?
E. Graham Gibbons: Sir, it has been stayed by the Supreme Court of Alabama pending the hearing in this Court. Secondly, he has no right of attorney. The Attorney General indicates that he has it as a matter of right and yet here's an excerpt from the Code of Alabama and the first case annotated under this Section of Appointment of Counsel for a Coram Nobis Hearing is that the trial judge in his discretion can determine whether he gets appointed counsel or not. And the third ground that post-conviction remedy is not satisfactory is that in a post-conviction remedy, the petitioner has the burden of proof. He has already sacrificed his cloak of innocence. He's already sacrificed the Court's scrutiny of his fundamental rights because in a post-conviction remedy hearing, he has to prove and I submit that this Court holding that in a trial in a capital case if the record must affirmatively disclose, then think of the burdens that post-conviction remedies would solve. It'd take a lot of burden off of courts to jut ask for -- just to apply this simple rule. Edward Boykin wouldn't need a post-conviction remedy if the record affirmatively showed -- now, there's another point if --
Earl Warren: You may take your --
E. Graham Gibbons: -- if I may just say it --
Earl Warren: You may make your last points.
E. Graham Gibbons: There is no automatic clemency hearing that I know of in Alabama. If he has an attorney, he can ask for it but there's nothing in the statute that says he has it as a matter of right. Thank you.
Earl Warren: Mr. Gibbons, would you mind submitting to the Court a copy of your brief in the Supreme Court of Alabama?
E. Graham Gibbons: Yes, sir. And the -- Your Honor that's two --
Earl Warren: Yes.
E. Graham Gibbons: I've submitted two briefs.
Earl Warren: You have, you say?
E. Graham Gibbons: I -- I submitted two briefs.
Earl Warren: Oh, yes. Well both of them then and may I ask the same to the Attorney General that if you have any response be made to it, you may do so.
David W. Clark: Your Honor I have copies of Mr. Gibbons' both of his briefs --
E. Graham Gibbons: Here?
David W. Clark: Yes, sir. They had been in my folder --
Earl Warren: Well, may they be submitted then Mr. -- submit to our clerk, no hurry about it, you may do it to make sure --
Hugo L. Black: Can I have a copy the state's brief also, I guess --
David W. Clark: Yes, sir. I have --
Earl Warren: Mis -- Mr. Gibbons, in as much you have accepted the assignment of this Court to represent this indigent defendant, the court would have you in awe that it appreciates your service. We consider that a real public service and we're indebted to you for having made this representation of this indigent defendant. And of course Mr. Clark, we likewise appreciate the diligent manner in which you have represented the people of your state.
David W. Clark: Thank you, Your Honor. It's always a pleasure and privilege to be able to.
Earl Warren: Thank you.
David W. Clark: May I state to the Court that I consider it a greatest honor that I have received during my legal career.
Earl Warren: Thank you.