Warren E. Burger: We will hear arguments next in Darden against Wainwright. Mr. Harper, I think you may proceed whenever you are ready.
Robert A. Harper, Jr.: Thank you. Mr. Chief Justice, and may it please the Court, the prosecutor's closing argument in the Willie Jasper Darden prosecution during the final summary has been variously described as bad, as unfair, as harmful, as prejudicial, as egregious, but there is one word only that is sufficient to describe this argument in this case, and that is reversal. The question then arises as to why the case hasn't been reversed and why is it here. And the simple answer is, the Eleventh Circuit has not and did not apply the appropriate standard announced in Caldwell versus Mississippi. On the same date that the Darden case came down en banc from the Eleventh Circuit, July the 23rd, 1985, that court decided Tucker versus Kemp, Brooks v. Kemp, and William Tucker versus Kemp. The Tucker case has been vacated and remanded under the Caldwell decision. We raised Caldwell in the petition for rehearing which was denied... that opinion is found in the joint appendix at 395... when less than a majority of the court voted in favor of the petition for rehearing. The Eleventh Circuit is squarely faced and apparently rejected the Caldwell standard, and we would submit that in view of the dissents, two dissents in the en banc opinion on the 27th of August, that a remand would be inaccurate, and that an outright reversal is required. This argument is so bad it has been universally condemned. It is so bad, as the District Judge noted, even the state has not even weakly asserted anything but that it is improper. The reviewing courts, each and every one, starting with the Supreme Court of Florida, found that the prosecutor's remarks under ordinary circumstances would constitute a violation of the code of professional responsibility. Two Justices of the Florida Supreme Court, former Chief Justices each, described the remarks, as vituperative personal remarks upon the accused and appeals to passions and prejudice. The magistrate who heard the evidence at the evidentiary hearing below was "convinced that the jury deliberation was substantially influenced by the prejudicial argument. " The Eleventh... excuse me. The United States District Judge who had a de novo hearing on the issue said no one even weakly suggested that the prosecutors' closing remarks were anything but improper. The Eleventh Circuit said that anyone attempting a textbook illustration of a violation of the code of professional responsibility could not possibly improve upon the example provided by the prosecution during Darden's trial. We submit that this case would be universally applauded by the organized bar, and no concept should be indulged to deflect from the fact that the sentencer in this capital case was diverted from his truthfinding function. The purpose of the Code of Professional Responsibility is universally accepted by every practicing attorney and judge. The purpose of the rules is to protect the due process rights to a fair trial. These standards are objective, and we submit that these standards are the litmus against which this prosecutor's argument should be tested, and we submit that this test in the search for the ever elusive concept called justice would require that this trial, these proceedings be reversed. Against this test, every reviewing court, all the parties in the litigation concede that the argument is improper. The only problem is, the standard appropriate in this instance has not been applied. The argument itself comprises 44 pages in which 27 improper arguments are interjected. There are ten attacks on the credibility of the criminal justice system itself, attacks on the Department of Corrections, attacks on the parole people for turning this man loose, and the like, nine instances of personal opinion, two instances of bolstering the argument, two outright misstatements, one interjection of race, and one attack on specific... well, actually two attacks on specific rights. In the order that they occur, the arguments start off with entreaties to the effect, "It could have been you, members of the jury, who had been murdered. " arguments that I am convinced--
William H. Rehnquist: What is wrong with that sort of an argument, counsel? I mean, the prosecutor has got to say something.
Robert A. Harper, Jr.: --Well, Your Honor, I think he does have to say something, but I think it has to be proper.
William H. Rehnquist: Is there some constitutional standard of propriety that you see in our cases?
Robert A. Harper, Jr.: Yes, sir, particularly in a death case. I think that there... the... when you inflame the passions of the jury and divert them from the issue at hand, be it guilt or be it punishment, and interject things like--
William H. Rehnquist: You say, then, that the Fourteenth Amendment of the United States Constitution prohibits a prosecutor in a death case from saying to the jury, members of the jury, it might have been you who was killed?
Robert A. Harper, Jr.: --Well, that is just one of the first instances.
William H. Rehnquist: But I take it, though, that is what you are saying.
Robert A. Harper, Jr.: That is one thing he said. Yes, Your Honor. And I--
William H. Rehnquist: And you say it is unconstitutional for him to say that.
Robert A. Harper, Jr.: --What I am saying more particularly is unconstitutional is, there should be another defendant in this courtroom, but alas, I know of no charges to bring against--
William H. Rehnquist: Well, but you started out ticking off your claims as to how this prosecutor had fallen short, and I thought the first one you gave was, he said to the members of the jury, this might have been you. Now, surely you meant that to have a constitutional dimension, didn't you?
Robert A. Harper, Jr.: --Well, Your Honor, that golden rule argument, I was saying... what I have said was, there were 27 instances of misconduct.
William H. Rehnquist: Well, how... you--
Robert A. Harper, Jr.: And not all of them maybe rise to the constitutional level. I have some that I believe do as opposed to that one, and others that I think are stronger. "The other defendant should be the Division of Corrections. " I think, is stronger. "I wish the persons responsible for him being on the public were in the doorway and shot instead of the victim, Mr. Turman. " I think arguments like, He, Darden, is a prisoner. "Mr. Turman... that unknown defendant, namely, the Department of Corrections, is criminally negligent. " "And I will tell you this. " "I will guarantee you that if I were in the same chair as Mr. Darden, I would lie between my teeth. " me, the elected official of which probably a majority of that jury voted for. And I think there are other arguments that get even worse. "I have no contact with this case, but sometime it emotionally gets to me. " "There is one person on trial, he, Willie Darden, and his keepers. " I think those are the kinds of things that reach constitutional dimension, Your Honor. And I think it goes further when he says that he, Darden, says he asked for a polygraph. "Only an incompetent lawyer would allow him to take a polygraph. " Mr. Goodwill, the defense lawyer, "You didn't give my shells back. " and these kind of conducts against this lawyer, slamming stuff around, berating in front of the jury, parading in front of the jury, putting the credibility of the office of the state attorney, an elected official under the constitution of the state of Florida, in issue time and time again. "I believe Willie Darden is a murderer. " "I will believe that the rest of my life. " That kind of argument, I submit, Your Honor, rises to the level of a constitutional violation under any standard, and in particular the Caldwell standard, which was not addressed and has not been addressed by any reviewing court today. Those are not the only instances of misconduct, however, and as I admit, there are more and more, and it builds up time and time and time again, and the thing... "The Department of Corrections turned him loose on the public. " "Can we expect them to stay in prison when they go there? " "Can't we expect them to stay locked up once they get there? " "He shouldn't be out of his cell unless he has a leash on him. " These are the kind of things, Your Honor, that are not just isolated. They are persistent time and time and time again. "Yes, there is another defendant, but I regret I know of no charge to place upon him except the public condemnation. " "Condemn them. " "Condemn the Department of Corrections by putting Willie Jasper Darden in the electric chair. " is what that prosecutor is saying. "He is a prisoner. " "He is supposed to be. " "Mr. Turman is dead because of that unknown defendant, the Department of Corrections. " "We don't have in the courtroom allow it. " "We, the Department of Corrections, is criminally negligent for allowing it. " Those kind of arguments, I submit, Your Honor, rise to constitutional question. It is a direct attack on the reliability of the criminal justice system itself. Here is the executive branch challenging another branch of the government, making attacks, personal attacks on counsel in the courtroom, and then going through things like, well, counsel is going to say... try the sheriff's department. Well, he has got notes that I gave years ago, and I used to be a defense lawyer myself, nine years. And that is not the only thing, he asked. And I think the biggest thing about the argument is, he gave one argument... they gave one argument, 44 pages, 27 incidences of misconduct, and during that time he says, "I guarantee you I will ask for death. " "There is no question about it. " The second part of the trial, "I will request you to impose the death penalty. " "I will ask you to advise the judge. " "That is the only way I know he is not going to get out on the public. " "That is the only way I know. " "It is the only way I can be sure. " "It is the only way anybody can be sure, because the people that turned him loose. " and those arguments, I submit to you, rise to a constitutional question.
Warren E. Burger: --Your point is that that is an unconstitutional... that argument rises to the level of a constitutional standard.
Robert A. Harper, Jr.: I am sorry, sir?
Warren E. Burger: The argument that he shouldn't have been let out of the prison before, and that if he is let out again, he might be out on the public, do you say that is an improper, impermissible argument constitutionally?
Robert A. Harper, Jr.: Your Honor, future dangerousness is a different issue from what I am trying to say is overall, considering the total circumstances of a racially charged courtroom setting in a rural area of mid-Florida in 1973, where the prosecutor entreats the jury during voir dire that, can you try Willie Darden as if he was white, then saying that their particular argument, that, you know, there are particular words that are permissible, but they are included in the context of impermissible argument. I think future dangerousness is a permissible argument, but to say that the only way I know that you can protect the public is to... and the negligent people that turned him loose, to make sure it doesn't happen again, I don't think that is proper.
Warren E. Burger: Constitutionally impermissible? That is my question.
Robert A. Harper, Jr.: Your Honor--
Warren E. Burger: Improper may be one thing--
Robert A. Harper, Jr.: --Yes.
Warren E. Burger: --as a matter of good taste. Is it constitutionally impermissible to point those things out?
Robert A. Harper, Jr.: I think there are certain segments of the argument that pass constitutional muster, but considering the argument as a whole, the calculated and designed effect it had to inflame the jury, it was a model in its total context. It was designed and did, I believe, violate every single article of the Code of Professional Responsibility.
Warren E. Burger: When was this crime committed?
Robert A. Harper, Jr.: This crime was committed on September the 8th, 1973.
Warren E. Burger: 1973.
Robert A. Harper, Jr.: Yes, sir.
Warren E. Burger: So you think it is constitutionally impermissible for a lawyer in the courtroom to criticize the system of justice that lets this kind of a matter run that long? Constitutionally impermissible for a member of the executive branch, as you put it--
Robert A. Harper, Jr.: Yes, sir.
Warren E. Burger: --the prosecutor to be critical of the system of justice that takes 13 years to get something completed?
Robert A. Harper, Jr.: Your Honor, it wasn't 13 years old when he said that. The trial, of course, was four months later from the crime. The crime was committed on September the 8th, 1973. The trial was January the 17th, 1974. As far as this trial, this proceeding dragging on this long, if that is the question you are putting to me, Your Honor, my position is that I am sworn to defend a person's rights as long as he has those rights. In this case, Willie Jasper Darden, he will not die because of these rights he has, and these rights we have been asserting the last eight years that I have been working on this case pro bono have been reevaluated at least three times by this Court. All three issues we have filed have been reevaluated, and the only thing that has changed in Willie Darden's case is not the facts, but the way we have had to plead in ours, and the way we have had to try to get the courts below to apply the standards that you have set out. Our case has been, I think, very active, and it was visited by the en banc Eleventh Circuit four times.
Warren E. Burger: Did you say it is the third time it has been here?
Robert A. Harper, Jr.: Yes, sir. Yes, sir, it is the third time here, but I think it is appropriate to say that the issues are more ripe now. The magistrate made certain findings below, and the District Judge made findings below that make things ripe in the sense of this. There are historical findings that have been made that are important by the judge below which are now reviewed under a clearly erroneous standard, and I think those findings, those types of things solidify the rights of Willie Darden to the relief that we are requesting. And that isn't the only issue in the case. The exclusion of Murphy, venirium in Murphy, I think, is a perfectly viable issue. It certainly falls short of the breadth of Lockhart, but is as viable an alternative to the relief that we request on the argument. Mr. Murphy was clearly excluded applying the wrong standard of law. He was not questioned under the Adams standard, and I think it is appropriate to review the case and reverse the case on that issue by itself.
William H. Rehnquist: Well, Murphy was sitting there while the judge had made his introductory statements in that regard, wasn't he?
Robert A. Harper, Jr.: Your Honor, that cannot be gleaned from the record, and I would submit, Justice Rehnquist, that a contrary inference could be drawn from the record. The appendix at Page 5, the transcript at Page 6, the judge says, "All right, at this time we will take a recess for ten minutes. " "I would like you all back in the courtroom to proceed with the selection of the jury. " One of the jurors said, "Beg your pardon, sir? " "She was talking, and I couldn't hear what you said. " I don't think you can conclude from the record that Mr. Murphy heard.
William H. Rehnquist: Well, but if there is a debate on that, I think that our cases on federal habeas review say that you presume the judge applied the correct standard.
Robert A. Harper, Jr.: Yes, sir, but I don't think that presumption can apply in this case, and the reason I say that are two. The findings are not fairly supported by the record, and there was an inadequate development of the material facts, and I think that the presumption of correctness that has been announced, and which really is not new law, but just a new enunciation of the proceedings under 254(b).
Harry A. Blackmun: If you should prevail, counsel, on the juror Murphy issue, what is the result, vacation of the conviction or only of the death penalty?
Robert A. Harper, Jr.: Only of the death penalty, Your Honor. If it please, Mr. Chief Justice, I would be willing to reserve my remaining time at this time for rebuttal.
Warren E. Burger: Mr. Prospect.
Richard W. Prospect: Mr. Chief Justice, and may it please the Court, with regards to the first remarks that Mr. Harper made, I would like to relate to the Court historically that nine years ago when we argued this case another lawyer appeared on behalf of Mr. Darden and gave essentially the same attack on the statements of the prosecutor. Nothing obviously has changed. The remarks have remained the same for the past 13 years. The attacks have remained the same, and judicial treatments and considerations of the propriety of those remarks have likewise remained the same. The only thing that has changed between nine years ago and now is the federal hearing we had in 1979 in District Court. Nine years ago I stood here and told you that although the remarks were indeed improper and no thinking person could ever hope to defend them either singularly or collectively, there was something that I thought was very compelling about the case, and that was the lack of objection. There was no objection to the particular alleged inflammatory remarks. At that time, I knew only that there was no objection, but by virtue of the federal hearing, I know why, and the Court knows now why there was no such objection. The lead defense counsel for Mr. Darden, Mr. Goodwill, testified at the federal hearing which, if I may digress for a moment, the federal hearing was held for the sole purpose of determining the ineffective assistance of counsel claim. As a major premise of that challenge, the defense intended to develop the reason for failure to object. It was their legal position that the failure to object to these arguments represented and constituted ineffective assistance of counsel. Now, obviously, Mr. Goodwill had to testify that there was no objection, but he gave as his reason the fact that apparently he and the prosecutor were old friends. They had gone to law school together, and they had known each other approximately 13 years. When I asked him directly why there was no objection, he stated that because of his prior acquaintance with the prosecutor and by having cases against him and knowing him as a lawyer, he was confident that his remarks, if left unchecked, would rise to a level which would represent reversible error without the need of objection. Now, this question that I asked of the gentleman was specifically responsive to the testimony presented on behalf of the defense at the federal hearing from the other lawyer, the junior attorney who was newly admitted to the bar who was assisting Mr. Goodwill. His name was Maloney. Mr. Maloney said the reason there was no objection was because he didn't know anything that the prosecutor was saying was objectionable. Mr. Goodwill contradicted that, and specifically added that at one point in the closing argument Mr. Maloney arose as if to object and he physically restrained him. Now, this was sworn testimony before a federal magistrate. In this particular regard, even the magistrate, the one person who Mr. Darden relied so heavily upon, made a finding of fact after hearing testimony. He rejected obviously Mr. Maloney's testimony and accepted as a finding of historical fact that the lack of objection was due to deliberate tactical choice. Now, for the past few minutes we have obviously heard complaints about the arguments, and we have heard the requests that because of the arguments alone the conviction should be reversed.
Thurgood Marshall: Has there ever been a finding about effective assistance of counsel in this case?
Richard W. Prospect: Yes, sir.
Thurgood Marshall: There has been? I thought so.
Richard W. Prospect: That has been consistent throughout. The magistrate through the Eleventh Circuit en banc every time.
Thurgood Marshall: Well, while I have you interrupted, do you agree that there are some arguments that get to the point where they are constitutionally impermissible?
Richard W. Prospect: If viewed by themselves under different circumstances and perhaps in a different case, yes, sir. I agree that they have no business in a courtroom in our land. But I have to temper that answer--
Thurgood Marshall: I keep hearing that, but I have difficulty finding a case that after saying that they reversed.
Richard W. Prospect: --That is true. And obviously Mr. Darden wants this to be the first one. But in answer to Justice Rehnquist's question about that, I think the standard has been developed, at least in the federal context, in United States versus Young. Now, there the remarks weren't hardly as bad, but the concept and the standard that was applied was whether viewing the remarks alone could a determination be made that the jury was unable to properly weigh the evidence. Now, for a moment we brush aside the fact that there was no objection, and that there was no objection for a deliberate reason. Even without that consideration momentarily the remarks were really more the product of somebody who perhaps got carried away to the point of forgetting his professional responsibility. As I point out in my brief, the defense counsel made a very skilful closing argument in which he pointed out the fact of Mr. McDaniels parading around the courtroom and slapping paper on the table, and apparently he was doing something else that wasn't demonstrated, at least not in the record. He mentioned to the jury that Mr. McDaniel never argues the evidence or talks about the case. He wants to embarrass you into a verdict. He wants you to be harangued into a verdict, to use his words. If I may quote, "My God, I get the impression he wants to be there to pull the switch. " The jury heard this, and they saw what the prosecutor did, and only they did. We never did. If you will remember, the record reflects that those 44 pages of closing argument were followed by an equal, if not greater, number of closing argument pages by the defense, during which still maintain a very skillful usage of the prosecutor's transgressions was had.
Byron R. White: Was this the issue before us when it was here before?
Richard W. Prospect: Yes, sir, and only the issue.
Byron R. White: And that is when you were here before?
Richard W. Prospect: Yes, sir.
Byron R. White: And we dismissed as improvidently granted?
Richard W. Prospect: Yes, sir.
Byron R. White: It was just a line, no opinion?
Richard W. Prospect: Just a line, sir. The claim today is different in that we now have the Caldwell Eighth Amendment ramification introduced. Although it hasn't been stated, I guess what the position is that this argument carried over to the sentencing phase of trial such that the recommendation and thus the ultimate sentence was not reliable in terms of the Eighth Amendment. Now, I will just mention that the defense counsel followed that argument with a lengthy closing argument, as long or longer. At the close of that argument, the judge instructed the jury in a capital case in a first degree murder, the instructions of which are very long and involved. At that point in time, the jury retired for, as the record reflects, two hours and ten minutes. After they returned with their verdicts, they were polled individually three times, once for each count. At that time, brief closing remarks were made by defense and prosecution during the penalty phase of the trial. Nothing has ever been claimed here or before that the remarks of the prosecutor during penalty phase were improper in any way. In fact, they are very brief, and if I may sum up, the prosecutor asked the jury to listen and remember the evidence that was presented at trial, and I am sure you will find after listening to the judge's instructions that Mr. Darden falls into the aggravating circumstances and doesn't fall into any of the mitigating circumstances. At that point, the record shows that the jury deliberated for an additional 40 minutes and returned a recommendation of death. If we add all that up, we are looking at approximately four-and-a-half to five hours when the recommendation of death came after the argument which the defense maintains necessarily infected. I think that is a factor to be considered. No court has ever held that the arguments alone under the circumstances of this case have infected the determination of guilt. Now, I submit that if that is true, then I don't see how the carryover effect could be had to the recommendation, which was only a recommendation, mind you. If I could get back to the fact of the lack of objection, I think that is really the issue in this case. Was that choice permissible in a capital case? As I have stated in my brief, I think that decisions of counsel obviously can bind any defendant. Decisions of counsel can obviously define... I am sorry... bind a capital defendant. But will those decisions, even though deliberate, will they allow a capital defendant to be... to suffer any adverse or prejudicial effect. And that is what I think the crux of this case is on this issue. And I have offered the standard of reasonableness, borrowing from Strickland versus Washington. Did Mr. Goodwill's decision not to object, did it represent a reasonable decision under the circumstances and facts of that case? Now, I would like to remind the Court again that this case was indeed the first case in Polk County, Florida, in 1973. Everyone involved was relatively, if not totally, new at proceeding under our capital statute at that time. If you accept the premise that Goodwill offered under oath that the prosecutor would go indeed to the point of reversible error, you have got to examine what possible effect he expected or hoped for. He didn't get a verdict of acquittal. That is obvious. So he wasn't successful. But nevertheless was he reasonable in anticipating at that time the proposition that if he allowed the prosecutor to go on, could he possibly embarrass the jury out of a verdict? He turned everything the prosecutor said skillfully around, I submit. I think at that point in time, not using the benefit of hindsight and result-oriented thinking, I think it was reasonable. He had made other tactical choices during the proceedings. One, which I mentioned in the brief, regarded alibi. Mr. Darden at all times wanted to present a defensive alibi, and based on their investigation, the lawyers assigned to the case could not account for his whereabouts between approximately 5:30 and 6:30... 6:00 o'clock, I am sorry. That period of time was a gap. The decision was made not to go with a strong alibi defense in terms of a formal defense. The decision as revealed in the federal hearing was to let Mr. Darden take the stand, provide evidence of his alibi up to a point, and let the state provide evidence from that point after, in other words, before the gap and after the gap. That turned out, we learned again in the federal hearing, to be a proper choice, because the prosecutor told the defense lawyer later, after the trial, that he was just hoping an alibi defense would have been presented because he was fully prepared in rebuttal to come in and show that from where Mr. Darden said he was at a given point, there was ample time driving the routes necessary to have gotten to the furniture store, committed the crime, headed out of town on State Road... or US 92, and had the accident, which was never disputed. That was a good choice. Again, the choice about failing to object, while not good, was still reasonable, and I think even though this is a capital case, and I am not standing here saying that we can always provide procedural bars in capital cases. This is a serious business. I think, to borrow language from the Court in other decisions, perhaps capital defendants are entitled to as much protection as possible, but I nevertheless think in the circumstances of this case it was reasonable. The evidence that was presented was strong. I think the jury was intelligent enough to know that the prosecutor was simply being outrageous. There is no showing that they were infected or affected by what he said. The evidence was ample. They could have and obviously did return their verdict based only on that evidence, and I think the petitioner here, the defendant has failed to show other than the claim how or why there is even the possibility that they were affected by the closing argument. I think he needs to do this. I posited that position in my brief, and I think if anything is written in that regard it should be that if you are going to make that claim under facts and circumstances like this case, there should be some burden shown. I think there has been none offered and obviously none shown. Regarding the Witherspoon issue, I cheerfully admit that the question of Caldwell was raised in the third petition for rehearing seeking the fourth en banc hearing of the Eleventh Circuit. I also note that two of the dissenters mentioned that the issue, the Eighth Amendment issue of closing argument ought to be considered in light of Caldwell versus Mississippi as well as the series of cases that the Court had come out with about the same time. I don't believe, however, that the views of the dissenters are equivalent to a holding on the issue. I don't really think the Eleventh Circuit has ever addressed this. But as against the possibility that some could consider they had, I would like to say that this is not Caldwell. I don't need to remind the Court what was involved there, but I will briefly emphasize that in Caldwell that which lessened the reliability of the sentence were remarks made by the prosecutor to the jury who was the sentencer, unlike Florida. This jury in Mississippi did the actual sentencing. The remarks were of the tenor that, ladies and gentlemen of the jury, you don't really need to worry about what you are going to do, because this case is going to be reviewed by higher authority. An objection was made, unlike here, and the trial judge reinforced that statement when he repeated to the effect, ladies and gentlemen, that is true, there will be further review of this case. Now, for the very, I think, compelling and adequate reasons expressed in the decision, that could have left the jury with the possibility that they could have shirked their responsibility with the idea that someone after them would take care of sentencing this individual. Thus the reliability was lessened. We don't have that here. We have got improper remarks, but we don't have misstatements of law. We have nothing going to the jury which indicated they could do anything but what they had to do. At that point it was guilt or innocence. We don't have the trial judge reinforcing what the prosecutor said. I realize that the rather loose claim has been made that the trial judge told the jury to listen carefully to the closing arguments, that these lawyers were trained, and that they should pay close attention. But I don't think that hardly rises to the same level as the statements of the trial judge in the Mississippi case. The last issue which has not been argued by Mr. Harper yet, if at all, regards the ineffective assistance of counsel.
John Paul Stevens: May I ask, because it was argued, are you going to comment on the Witherspoon problem in your presentation? That was argued both orally and in you brief.
Richard W. Prospect: Yes, sir. Thank you for reminding me. I completely forgot.
John Paul Stevens: And in your brief, I notice you state that the venirman Murphy told the trial judge his principles were such that he could not vote to recommend a penalty regardless of the facts, but that is not what he told the jury, is it? That was not the question that was asked, was it?
Richard W. Prospect: Of Mr. Murphy?
John Paul Stevens: He was asked whether he could do that without violating his own scruples.
Richard W. Prospect: His principles.
John Paul Stevens: Yes. Do you think that is an adequate question?
Richard W. Prospect: Yes, I do. I think it is a semantic exercise to say that using the Witt standard of substantially impairing or prevent, I think when the man who sat throughout the entire examination, and I would like to step aside for one moment, there is record support.
John Paul Stevens: I wanted to break my question in two parts. First, if you just had that question by itself, would you not agree that that is just almost verbatim the Illinois statute that was held insufficient in Witherspoon?
Richard W. Prospect: Perhaps--
John Paul Stevens: They were asked there whether they had scruples against the death penalty.
Richard W. Prospect: --Perhaps relating to the statute, but the question asked in Witherspoon had nothing to do with the statute in terms of the language. My reading of Witherspoon was that the 47 venirmen who were excused were done on the basis of one or two perfunctory questions to the effect, do you have any views against capital punishment.
John Paul Stevens: Well, the statute provided if you have conscientious scruples against capital punishment, you can be excused for cause.
Richard W. Prospect: And I--
John Paul Stevens: Do you think today if a venirman is asked if he has conscientious scruples against capital punishment, and he says yes, would that be sufficient to justify his using it for cause?
Richard W. Prospect: --No, I don't think it would.
John Paul Stevens: Well, why isn't that precisely the question that was asked here?
Richard W. Prospect: Because Mr. Murphy was asked, do you have any principles in opposition such that you could not participate in a recommendation of the sentence of death.
John Paul Stevens: Without violating those principles.
Richard W. Prospect: Without violating those principles.
John Paul Stevens: Do you think it is impossible that a person could violate his own principles if the law required him to do so?
Richard W. Prospect: Is it possible to violate?
John Paul Stevens: Yes, that is exactly what--
Richard W. Prospect: Yes, I think it is possible.
John Paul Stevens: --Then he hasn't said you couldn't vote against the death penalty. He has only said he can't do it without violating his principles.
Richard W. Prospect: Well, it would be my position that the violating of his principles would represent an impairment of his ability to follow the law.
John Paul Stevens: I see.
Richard W. Prospect: That is my position on that.
John Paul Stevens: Then I suppose you would say that the statute held invalid... the Illinois statute held invalid in Witherspoon is now valid under the later case?
Richard W. Prospect: Yes, sir.
John Paul Stevens: Witherspoon has been overruled, is your position. That is what it comes down to, I think.
Richard W. Prospect: I don't know I would go that far.
John Paul Stevens: You just did.
Richard W. Prospect: If I could explain my answer, I don't think the statute was as much in issue in Witherspoon as it was the lack of questioning which trapped the statute. Had the Illinois judge elucidated on the statute and established not only the opposition to capital punishment, but also that the individual jurors involved were opposed such that they couldn't follow the law, I don't think Witherspoon would have been decided the way it was. If I recall Justice Stewart setting the tone of that trial--
John Paul Stevens: In other words, you are saying if they had asked that additional question, which of course they didn't ask here, either, as to whether they could--
Richard W. Prospect: --No, no, they didn't ask additional questions, but previous questions were asked at least 14 times.
John Paul Stevens: --Of this juror?
Richard W. Prospect: No, sir. To the pool, the entire pool, and two things I would like to point out. In the beginning, the trial judge explained to the entire people before 12 were selected to go into the box for individual examination, he specifically told them in language which even the defense doesn't complain about that they were all going to be asked questions regarding capital punishment, so they at least knew that something was coming in that regard. Now, Mr. Harper faults the Eleventh Circuit as well as the District Court, the conclusion of both courts that presumably or obviously Mr. Murphy heard all questions going before the one asked of him. Now, there is record support, a gentleman by the name of Mulroy... I believe it is on Page 89 of the trial transcript... was called in after peremptory excusal, and the first thing asked of him was, could you hear the questions we have been asking all the jurors? And he says, yes, I could. Now, it would be obviously better if the same question was asked of Murphy, but it wasn't. But I think the presumption or the logical inference can be that the circumstances of the questioning of the jurors was such that all prospective jurors, and I am talking about those before they were called into the box for individual examination not only heard the questions asked of those, they observed the people who answered in the specific way those five who were excused. They saw them step down.
John Paul Stevens: Well, may I ask, do you think that the record before the particular question was asked of Murphy is clear enough so that if the judge had just said to Mr. Murphy, is there any reason why you can't sit in this case, and he had said no, that he could then have been... I am sorry. I have it backwards. He did at least have to ask this question to... I am sorry. No, I have it backwards. I'm sorry. I shouldn't have interrupted you.
Richard W. Prospect: That is quite all right, sir. But, wherever I was, I think I was about to--
John Paul Stevens: You are relying heavily on what was said in the general discussion rather than on this particular question, is really what I am trying to--
Richard W. Prospect: --I am relying on it, Your Honor, but I still don't abandon the position that the question is sufficient under Witt to demonstrate that Mr. Murphy could not follow the law.
John Paul Stevens: --If it weren't for Witt, would you agree it was plainly insufficient under Witherspoon. Would you not agree with that? You have to rely on Witt as in effect having overruled Witherspoon, I believe.
Richard W. Prospect: To a certain degree, but no, I believe it would have been sufficient under Witherspoon simply because we don't know the exact questions asked in Witherspoon.
John Paul Stevens: But we do know from the first paragraph of the Witherspoon opinion that questions complying with the Illinois statute were not sufficient, and the questions complying with the Illinois statute are substantially in the language that this trial judge, who had had no experience in death cases, as I understand it, asked in this case.
Richard W. Prospect: That is true. No experience. But all courts below have consistently held that he understood the concept of Witherspoon perfectly. I might note that the question that he asked goes only to the first part of Footnote 21 in Witherspoon. He never got to the guilt or innocence. He went right to sentence, those two concepts which were merged in Witt and, according to the opinion simplified. Now, if I may borrow somewhat from the preceding argument, I think that it must be remembered that the objection raised here, and I think rather prophetic in light of the argument before us, the defense filed a pretrial motion contending that the state not be allowed to ask Witherspoon type questions, contending that such questions were irrelevant to a determination of guilt or innocence, but that if the court would allow those questions and if a positive response were asked, that challenges for cause not be allowed, without articulating it any more than that, and I practically stated it verbatim. The position of the defense in '73 in light of our new statute was that now that we have a bifurcated trial, anything that the state might want to know regarding predisposition to Witherspoon has nothing to do with guilt or innocence. That was the motion. It was denied, and a continuing objection was lodged throughout the entire examination, but nothing was renewed. And I think that is critical. No juror excused was made the object of a statement, motion, or objection that the individual was impartial, there was no objection, or request, perhaps more importantly, there was no request that the trial court continue questioning and see if the juror, whichever juror had given a response regarding opposition to capital punishment, to see if additional questioning could be had to determine rehabilitation on guilt or innocence. In that regard, I think that the precise issue is not really raised in terms of the Grigsby concept. The excusal, I think, was proper standing by itself. The right question was asked. I don't know what the wrong standard is that they are continually harping on. But I submit that it was proper. Now, if I could return to the last phase, I only want to say since my time is running out that... and if I may, it will be by way of conclusion, this case in addition to being as old as it is is rather eerie. We have a murder occurring in September of 1973. Mr. Darden was arrested that evening and was immediately appointed counsel. The record indicates both directly and I think you can draw logical inferences therefrom that the entire staff of a public defender's office in Polk County, Florida was devoted to this first capital case. If anyone suffered, I think, in that four-month period I think it was the other criminal defendants in that county who for all the record suggests were getting no attention to their particular cases whatsoever. The case is prophetic in that the lawyers 13 years ago decided that Witherspoon did not apply to a bifurcated trial by filing their motion. I think that was innovative and brilliant. We have a situation where a trial judge in what can only be considered a prophetic vein told the jury that at the second phase of the proceedings they were only going to recommend sentence, and that he was going to give that recommendation, however, great weight. The great weight concept to our recommendation in Florida was embraced in Tedder versus State, and that wasn't decided until two or three years after this trial. The trial judge told the defendant, told the jury, and told the defendant's lawyers after reading the statutory mitigating items in our statute, said that no one was limited to these things. Anything in mitigation, anything relevant was coming in. The parameters of Lockett were character and record of the accused. Here he asked for history, family causes, reputation, anything pertinent to the proper sentence. The lawyers again perhaps being able to see in the future asked questions of the individual jurors relating to race, what they felt about statistics showing the number of convictions and arrests for blacks versus whites, something which I believe was argued last month. It is surprising, I think, that the amount of due process afforded to this individual has nevertheless resulted in this delay. I am not here to ask for speed. I am here only to ask for looking at this case in the context of what it was as it was tried 13 years ago. We can't judge either the performance of counsel or the performance of the judge by standards which have evolved at this point in time, even though I might add I don't think the judge could have improved one bit between now and then. Therefore I would ask that the Eleventh Circuit's decision in this case be affirmed in all respects. Thank you.
Warren E. Burger: Do you have anything further, Mr. Harper?
Robert A. Harper, Jr.: Yes, sir, Your Honor. The state would apparently have Mr. Darden come forward showing some prejudice by this argument. In other words, place some burden of showing on us which is the standard adopted by the Eleventh Circuit. We would submit that it is more appropriate that the standard is on the state to show that there was a likelihood of harm from this prejudicial argument. It is our position that this trial, the system itself broke down. Unlike Caldwell, where the judge actively intervened and made a proper instruction, the judge was quiet and didn't say anything. As a matter of fact, when there were what has been categorized as tentative, a weak objection, the judge in one instance overruled it, and in the other instance said, proceed with the case.
Warren E. Burger: What do you have to say about the failure of an objection? Is that correct... the objection?
Robert A. Harper, Jr.: The magistrate found there was an objection, firstly, Mr. Chief Justice, and what was at... it is in the appendix at Page 240... excuse me, the appendix at 214, late and tentative. I would submit that finding of fact is reviewable under the clearly erroneous standard. The District Judge, however, said that the state decision was rendered by the Supreme Court to entertain fair trial on the merits and pronouncements.
Warren E. Burger: What does the transcript of the trial show with respect to an objection?
Robert A. Harper, Jr.: Your Honor, in my opinion it shows defense counsel alternatively rising to object to the argument in two separate instances.
Sandra Day O'Connor: And what was the specific objection made in those two instances? Wasn't one having to do with the gun?
Robert A. Harper, Jr.: One... the second objection was... that is about the fifth time the state has said he wished the defendant would kill himself. And the first objection was to the evidence. But the second objection, I think, was clearly to the improper argument. But as to this prejudice showing, I think it is important to note that the jury even in this case was split, and if there is such universal accord on the death penalty being appropriate... even in the face of this argument there was a split verdict... I think there is some... that is some showing, at least, that the reliability of the outcome has been infringed upon.
William J. Brennan, Jr.: Mr. Harper, how do you read the magistrate's... is it a finding, defense counsel's objection to the prosecutor's argument was late and tentative? What does that mean?
Robert A. Harper, Jr.: I read it to mean that there was an objection, albeit late, albeit a little weak, but there was an objection.
Byron R. White: What about the testimony of the lawyer at the habeas hearing?
Robert A. Harper, Jr.: Well, there are two lawyers who have testified there, of course, Your Honor.
Byron R. White: Did they claim they objected?
Robert A. Harper, Jr.: One said... yes, sir. There was a conflict in the testimony between those two lawyers. Just one of them said co-counsel, Mr. Goodwill, was too intoxicated to show up, and I had to go to court one day. There was a conflict on that testimony. There was a conflict on the testimony about the objection. One said we didn't know about it. The other one said it was a tactical decision. But in any event, I would submit--
Byron R. White: What was a tactical decision?
Robert A. Harper, Jr.: --The not objecting was--
Byron R. White: So there was testimony that there was no objection.
Robert A. Harper, Jr.: --There was an objection that he withheld objection until a later point, Your Honor. It was not testimony there was no objection, that early objections were withheld.
Lewis F. Powell, Jr.: Mr. Harper, the Florida Supreme Court found, and this is on Page 50 of the joint appendix, appellant admits that his attorney voiced but a single objection to the prosecutor's closing arguments, and that it was not directed to any of the alleged inflammatory matter, and that his attorney waited until the fifth objection... a fifth occasion to object at all.
Robert A. Harper, Jr.: Yes, sir.
Lewis F. Powell, Jr.: Do we have to disregard that?
Robert A. Harper, Jr.: Well, sir, I think there are two answers to that. First of all, the magistrate has made findings now that we are in federal habeas proceedings. Secondly--
Lewis F. Powell, Jr.: But they were... accepted by the District Court.
Robert A. Harper, Jr.: --Yes, sir. Yes, sir. And secondly, we have the Supreme Court of Florida in any event reaching the merits of the issue, clearly. And thirdly, that is an alternative ground... the Supreme Court never said we are applying the procedural bar. They in footnotes site Jones v. State, but they don't say we are applying a procedural bar, and indeed they can, but because counsel didn't object, it triggered a rule in Florida that this case would have to be reviewed under a fundamental error standard, under state law. It is reviewable without objection, and it had to be reviewed by the Supreme Court under the death penalty statute. The total record had to be anyway. So, the Supreme Court of Florida had reached the merits under either one of, whether there was or wasn't an objection. They had to and did reach the merits of the issue. The Witherspoon argument rebuttal reply I would like to make is that the appendix failed to pick up the next line after the excusal of juror Murphy, and that is at Page... let's see, Page 9. It says, "All right, sir, you will be excused. " "Murphy then left the box. " In the trial transcript, Page 165, the very next line is the judge saying, Ms. Horne> ["], the court reporter, "you will please note an objection for cause by counsel. " And I would submit that the trial judge himself enunciating that objection into the record is all that is necessary. I don't think that an experienced trial lawyer in Florida is going to say, oh, yes, sir, Your Honor, and in addition to that objection for cause I would like to explain further an additional grounds, I think the trial lawyers would say when a judge says your objection is noted, that is the end of it, and when the judge said, your objection for cause is noted... it didn't say your objection, it said an objection for cause is noted... that is all that is necessary, and a lawyer owes his respect to a court to say nothing, and I think that is what happened here. It is there, and that is my rebuttal and reply. Thank you.
Warren E. Burger: Thank you, gentlemen. The case is submitted.


Earl Warren: You may proceed, Mr. Hofheimer.
Alan J. Hofheimer: Mr. Chief Justice, may it please the Court. I think I -- I've said that the Department of Labor launched a two-pronged attack against that firm, the firm that we represent and I used that divisively for this reason that both in the trial court and in the Court of Appeals the Department of Labor stressed the point that plans and specifications were goods. That was their main frontal attack. They set out I think to prove that plans and specifications were goods if they could and of course they did not succeed in either tribunal. Failing that, and as a second prong of the attack was the contention that the employees of this firm were engaged in commerce. I note that in the appeal on the writ of certiorari to this Court the -- the seal has been slightly reversed and now the first frontal attack is that the employees are engaged in commerce and secondly, we meet the issue that plans and specifications are goods. I should like to say at outset that -- and I think it should be clearly understood, that our clients in this case, the respondent -- respondents are independent art -- architects and engineers. Case after case in the various Courts of Appeal have been resolved, some one way and some the other where draftsmen and chainmen and other people who do the same type of work that our employees do who are employed by contractors. I think there is not a large contractual firm that doesn't employ chainmen and draftsmen and other people similarly to those employed by an independent firm, but we think that under the Act, it's very important to bear in mind the fact because we get to the question eventually of remoteness to bear mind in the fact, that the firm that we represent the defendants in this case as originally brought, do not participate in any construction whatsoever. They -- there's no evidence in the record of their having any job site engineers and there is no evidence in the record of their participating actively in any construction work at all. Now with that as a background I should like first to direct my argument to the question of whether or not plans and specifications are goods under this Act. I'd like to say here that I do not believe that there's a single court in the country that has held that plans and specifications are goods.
William O. Douglas: Well Brown case in the Circuit Court.
Alan J. Hofheimer: In the Brown case Mr. Justice it was particularly held in the last sentence of the Brown case that we will not pass upon that point because we will hold that the employees are engaged in commerce and the judge in the Brown case particularly said that he wouldn't decide whether or not plans and specifications are goods. He wasn't called upon to pass on that fact. The case that we think is the leading exposition, in other words, in the Brown case -- we think the case that is the leading case on this point in that it discusses the matter or one of the leading cases because Judge Learned Hand did in a case dealing with the -- not with plans and specifications but with a -- a similar typewritten manifestation. In the -- in the case that the appellant refers to as the old Turpin case, which is a District Court case decided by Judge Chesnut down in Baltimore. He went into the matter in great detail and we think with a great deal of effectiveness and conviction and with the Court's permission I should like to read what Judge Chesnut said. This is case is McComb against Turpin. It's in 81 F.Supp. 86 and I'm reading from that brief. Judge Chesnut with impressive clarity and reason then he explained why plans, drawings, and specifications are not goods. They are only a physical embodiment in words of professional conclusions. The opinion continues in the words of Justice Holmes in Federal Base Ball Club of Baltimore against National League of Professional Base Ball Clubs, 259 U.S. 200 and I quote, “Personal effort, not related to production, is not a subject of commerce. That which in its consummation is not commerce does not become commerce among the States because the transportation that we have mentioned takes place. A firm of lawyers sending out a member to argue a case, on the Chautauqua lecture bureau -- or the -- or the Chautauqua lecture bureau sending out lecturers, does not engage in such commerce because the lawyer or lecturer goes to another State. Certainly the word goods could not be construed to include professional advices and its definition should not be construed to include the type-written or mechanical expression by which the advice is given. Now that was the opinion of Judge Chesnut on plans and specifications which we think is the only case that we have been able to find and I think our adversary certainly would have found the other if he could tell the other way, this is the only case we've been able to find, dealing directly with plans and specifications.
Speaker: If the Secretary's contention were accepted in this respect would that sweep under the Act all of these employees or only some of them?
Alan J. Hofheimer: I think it will probably sweep them all --
Speaker: Including --
Alan J. Hofheimer: It would try to sweep under it all of the --
Speaker: Including the field -- or field men or the field representatives?
Alan J. Hofheimer: I should say it would, yes. If plans and specifications are goods I think it would keep everybody and the employee under that. Certainly it wouldn't include the professional employee that they're specifically exempt.
Speaker: No.
Alan J. Hofheimer: But I think it would include the field men.
Speaker: Or non-professional.
Alan J. Hofheimer: That's correct yes.
Speaker: Irrespective of whether they worked on the plans themselves -- or had anything to do --
Alan J. Hofheimer: Well, I think as a matter of fact, if -- that question will have to be resolved I think as to whether not the work is remote on that -- whether it's in a direct causation, whether it's directly essential or not, but the I think if plans and specifications are goods, we certainly from time to time send some plans and specifications across state lines. Now, we don't do much of that. Most -- most of that which is done by our client is done by the Government, but we do some of it. I think the record will show and in our brief that we do a little bit in 2% of cases do we send plans and specifications across the state line, but if plans and specifications are goods, I would say that -- engaged that the -- that we ship them across the state lines in 2% of the cases.
Felix Frankfurter: What about the arresting telegram -- arresting in the --
Alan J. Hofheimer: We think that the telegram in the Leonard case well, we omit in our brief and Judge Soper met that in his opinion. We think that the telegram is a subject of commerce undoubtedly. And we think --
Felix Frankfurter: That is goods?
Alan J. Hofheimer: Sir?
Felix Frankfurter: Goods, goods have very expansive meaning to the telegram is goods for the -- for making up a telegram.
Alan J. Hofheimer: Well the Court held that is was the subject of commerce and therefore came under the Act. Of course -- that was the Child Labor Act I think it was in term then, but the difference, but the distinction I think is -- is that if we were representing a firm that was preparing plans and specifications and advertising in magazines for sale, we would think then that we would be producing -- goods under this Act. But we say that all we're doing is the same thing that a lawyer does when a he gives a written opinion that we're taking the professional expression of a professional advice and resolving to a written instrument and that it has no particular value, no value at all except for the person for whom it is prepared. Now that isn't true with the people who were sent out selling, compiling and selling standard plans and specifications --
William O. Douglas: Lawyer's secretaries are covered in the Act or do they not?
Alan J. Hofheimer: We don't think the Act should cover a lawyer's secretary, no Sir. We don't think so because we think that is too incidental to what she does. We think that it is not directly essential to the works of a lawyer. It's -- it's -- and we would like to -- I'd like to deal with that in a moment if I may, Mr. Justice if you want me so. In the meantime --
William O. Douglas: I suppose that the Act would have been better if the lawyer's secretary in a state board and resumes.
Alan J. Hofheimer: Well of course, Your Honor, it isn't because these do too. As Judge Chestnut said in his opinion, this is not the mischief that the act was meant to remedy. There isn't anybody being employed of -- of -- who doesn't make a lot more money than you would ordinarily expect a minimum wage employee to make. The point is at the time when they have overtime it makes you so (Inaudible) regardless of how much they making at the time.
Felix Frankfurter: But if you go on that excess you will get it from the company.
Alan J. Hofheimer: On that so on that --
Felix Frankfurter: But the amount of money that seem --
Alan J. Hofheimer: I know that but I just -- we're not dealing on that pay --
Felix Frankfurter: I can think of -- some of the figures I've seen of lawyers' exempted (Inaudible) were not lawyers or professionals.
Alan J. Hofheimer: Well --
Felix Frankfurter: If we can do it -- go into that then we must.
Alan J. Hofheimer: Now, along that line in as to why these plans and specifications are not goods I would like with the Court permission to quote a small portion of Judge Soper's opinion in the Court of Appeals because we think that deals directly with this question and as expressed (Inaudible) we ourselves can express and I'm recording this is from page 147A of the record. Certainly the words “goods” could not be construed to include professional advices and its definition should not be construed to include the typewritten or mechanical expression by which the advice is given. These plans, drawings and specifications are not themselves the subject of border or sale but only the written embodiment of professional advice incidental thereto -- and incidental thereto. They are specifically prepared to meet the particular problem of specific plan and are not sold or offered for sale to the public generally. They are of course quite unlike stocks, bonds, and commercial paper which call themselves instrumentalities of commerce, Bozant against Bank of New York. This distinction was well made by Circuit Judge Learned Hand in the case cited the 156 F.2d 789 as follows. Some of the activities which went on we agree should on no theory be counted. A lawyer who in the course of his practice writes letters or draws deeds or wills, (Inaudible) in the record, is not on that account within 203 (j) and the same as true of the correspondence of a broker and of a banker. And if Your Honor please that, is we come to that -- we think would obtain to lawyers analogous as well as to us analogous too incidental. The definition of goods in 203 (i) might literally go so far even as that, but it would be unreasonable to the last degree to suppose that Congress meant to cover such incidents of a bidder whose purpose did not comprise the production of goods at all. And if Your Honor please that we think it disposes of the question and we think it disposes of the question of whether or not plans and specifications are goods. We think the Judge Chestnut's opinion and Judge Hand's opinion in the absence of any opinion to the contrary leads us to believe that it's just with these two judges -- that they are just what these two judges say they are, typewritten manifestation or expressions if you will of professional ideas.
Earl Warren: But Mr. Hofheimer can you be a little more -- a little more than that here didn't work these plans and specifications that went to the Government distributed to -- to prospective bidders and didn't the prospective bidders use those in determining whether they were going to bid or not and how much they were going to bid and then when they did bid then they used those in the construction of the building, isn't that a little more than just professional advice?
Alan J. Hofheimer: Well of course the -- the plans and specifications that we turned over to the Government the government did send from place to place to get contractors to bid on it. They sent them themselves, but we don't think that that means they are goods as far as we're concerned. There were no great benefits, if the Government wanted to build a particular way to the particular place and we do a planned specification for it which we did as a part of their advanced planning, in many instances the place was never built at all. Now our professionals -- professional men of the firm would get paid for those plans and specifications. What the Government did with them we don't know. We do believe and I think the record shows -- I mean it's not about business. We know as a matter of practice the Government very often distributes them for bids. I mean they mail them and they (Inaudible) for bids, but that was accurate that left our ends. Now we did that to vary and we did -- the clients themselves would do that, but the plans that we turned over to the Government was ours, but we don't think that's the same as making them -- that that makes them goods. We think still what Judge Chestnut did, we're still with Judge Hand said that it's a professional thing and after all professionals are exempt under the Act. Now if the professionals who in -- in architects and engineers engrave them, those professional men make plans and specifications. They have them prepared in their office or do it themselves in some instances they do, you can't afford (Inaudible) and then they send those and have them blueprinted. Now we don't think the fact and we don't think if there's any law anywhere although the Labor Department contends that that makes them goods just because anymore than a lawyer's brief would be goods. They're no goods as I said to anybody except to particular person who is employed with professional architect and engineer for that particular work.
Earl Warren: Is that the lawyers who -- who have a national business for instance who are exempted from this Act that is, they're employees who are engaged in these this services?
Alan J. Hofheimer: Yes all professionals are exempt for a sale.
Earl Warren: But I mean they're -- they're employees.
Alan J. Hofheimer: Well, we know of no administrative case where -- that there was no administrative case that have been brought to our attention where a lawyer's secretaries have been placed under the Act. Now maybe sometimes they have no -- they're no -- there's no case of -- I don't think there's no reported case of any such things that have occurred. We -- we contend that if -- if our plans are brought under the Act that -- that there is no professional exempt. Lawyers and doctors and artists, the man who paints the picture and the lawyer who draws a brief and the doctors who performs the operation and who makes the autopsy all of them must read into the laws of Fair Labor Standard Act. I don't think that you can make (Inaudible) and we don't think of courts (Inaudible). We just think that those fine lines that have been drawn from time to time between cases would just be eliminated so far as professions are concerned.
Speaker: Are you talking of the meaning of the professional fees (Inaudible)?
Alan J. Hofheimer: No sir. No Your Honor.(Voice overlap)
Speaker: Known as their employees?
Alan J. Hofheimer: Yes, Sir. Absolutely, yes sir.
Earl Warren: And by the same reason that the employees of your client are not under the Act, no employees of professional people would be under the Act, is that to follow?
Alan J. Hofheimer: No, sir we don't think it does follow for this reason as I said earlier and that we think that a construction company does it engage directly engaged in -- referring to an instrumentality of commerce. Now we think that a -- a professional man will say who was engaged or who gets up with business of selling plans, you see them advertised in all the magazines, standard plans, standard blueprints and specifications for homes on certain-sized lots. Now we think if they are employees and are invariably engaged in the production of goods for commerce that they should be under the Act. But we don't think that a lawyer's stenographer should be under the Act and we think it has not been intended by Congress. I mean the -- from the Walling case on who this Court has time and time again said that Congress did not make this Act all extensive. Judge Learned Hand said so that they fiddle, but they didn't and until such time as they do we think that employees such as we represent are intended for exemption. Now --
Felix Frankfurter: Mr. Hofheimer, this might bother you. If I heard it correctly, indicated that as a matter of administrative application, this has been applied to out-of-state law officers, to their stenographers and --
Alan J. Hofheimer: Well, Mr. Justice Frankfurter, we're in no position to affirm or deny that. We don't know.
Felix Frankfurter: And I don't mean to say that that would be controlling on you -- I just --
Alan J. Hofheimer: No sir, but we've never seen any of that.
Felix Frankfurter: And -- an acceptance and she also indicated that if the lawyers presumably they would have agreed, unless it's too trivial, unless they make so much money, it's doesn't matter. I wouldn't know about that but they don't contest it. They didn't expect lawyers to contest something to that.
Alan J. Hofheimer: Well, that is a matter -- served in last but usually within her knowledge and the knowledge is very far, the reason I'm not in a position to deny it.
Felix Frankfurter: Anyhow, that's into the Court.
Alan J. Hofheimer: Well we do say that we know nothing about it and I do say that as far as any law which is in my hometown is concerned, I've never heard of any them for being approached by the Department of Labor to find out whether they are secretaries working more than 40 hours a week.
Charles E. Whittaker: Mr. Hofheimer, do you make any claim that a law office or an engineering office is a service establishment --
Alan J. Hofheimer: No sir.
Charles E. Whittaker: You do not?
Alan J. Hofheimer: No sir. In fact it's accepted (Inaudible) Now, with the Court's permission I'd -- I'd like to proceed with the question as to whether of not our employees are engaged in commerce. We contend that they're not. In the first place, as I pointed out, we are not engaged in any construction work. We are independent, professional architects and engineers and that what we do for anything that is, has an interstate characteristic or aspect is too remote from it, by virtue of our insulation from it to be included within the Act and I should like with Court's permission just to read a -- a few lines from the Callus case to which with Ms. Margolin referred in regard to that aspect of the case and a part of this opinion was quoted by Judge -- Judge Soper in his opinion.
Speaker: Is it the (Inaudible)
Alan J. Hofheimer: Yes sir. Merely because an occupation involves a function not indispensible to the production of goods in the sense that it can be done without, does not exclude it from the scope of the Fair Labor Standards Act. Conversely, merely because an occupation is indispensible in the sense of being included in the long chain of causation which brings about so complicated result as finished good does not bring it within the scope of the Fair Labor Standards Act. In giving a fair application, I'm reading on page 582 of the opinion, in giving a fair application to 3 (j), courts must be remember that the necessary, in a phrase, “necessary to the production of goods for commerce” is covered by the context not only of the terms of this legislation, but of its implications in the relation between State and national authority, Kirschbaum against Walling, for as it pointed out Walling against Jacksonville Paper Company, we cannot be in module with Congress in enacting this statute plainly indicated its purpose to leave a local business to the protection of the states. We must be alert therefore, not to absorb by adjudication essentially local activities that Congress didn't deem fit to take over by legislation and then skipping a sentence, we come to the part that Ms. Margolin referred to as being incorporated in Judge Soper's opinion, “Mere separation of an occupation from the physical process of production does not preclude application of the Fair Labor Standards Act, but remoteness of a particular occupation from the physical process is a relevant factor in drawing the line. Running an office building as an entirely independent enterprise is too many steps removed from the physical process of the production of goods. Such remoteness is insulated from the Fair Labor Standards Act by those considerations pertinent to the federal system which led Congress not to sweep predominantly local situations within the confines of the Act. To assign the maintenance men of such an office building to the productive processes because some proportion of the offices in the building may, for the time being, be offices of manufacturing enterprises is to indulge in an analysis too attenuated for appropriate regard to the regulatory power of the States which Congress saw fit to reserve to them.” If Your Honor please we think that insulation that was spoken of in that case with those maintenance men also applies to us. There's no direct relationship between our work and the contractors who build the goods. We think that it's just as remote as the -- as are the maintenance men in Callus case. I will like in a few many minutes to the elect for me to distinguish this --
Earl Warren: May I ask you just one more question Mr. Hofheimer.
Alan J. Hofheimer: Yes sir.
Earl Warren: In -- in your clients' character as engineers, do they do any supervisory work on any of these jobs?
Alan J. Hofheimer: None for the Government at all.
Earl Warren: Well how about others?
Alan J. Hofheimer: In view of the 30% above other people incidentally the Government was that 85% in Washington, 60% in Norfolk. Now, the testimony of one of the witnesses was, one of partners that about 50% of the other work that was, they had supervisory, they had supervisory contract for -- but all that supervision is done by a professional man.
Earl Warren: Yes, but when they -- when they do this in other -- in other States, don't they use the plans and specifications?
Alan J. Hofheimer: Well, I don't think there's any evidence if they'd done that in other States. I mean, most of their work is local in nature and they don't, where they furnish supervision, they furnish no supervision in Government contract at all, where they furnish supervision, it is -- it is done by -- by a partner or at least a professional employee who is exempt anyhow.
Earl Warren: I know, but he'd be used in the work, would he not? He'd be using the goods if this --
Alan J. Hofheimer: Well do they --
Earl Warren: -- that these other people have produced these plans and specifications.
Alan J. Hofheimer: There's no doubt, yes.
Earl Warren: Yes I just wondered.
William J. Brennan, Jr.: Does that mean that it assures the Government if the project's outside of the (Inaudible)
Alan J. Hofheimer: Well, on occasion, there isn't any element in here it having been done this way. I couldn't say that it isn't, but there isn't any evidence of any supervision that was done for instance in Washington outside of Maryland where that's over the west end of the Washington office almost is on a -- a residential sewerage thing. It was constructed in Maryland and if any supervision had furnished that -- of course it's done outside of the district. I think there's no evidence of any supervision done by the Norfolk office outside of Norfolk. But as I say if we did, it would be done by a professional man who would be exempt. Now, the case, and the only case that we know of and the only case that the Government has produced in support of its position is the Eight Circuit case, the Brown case and I would just like to read just one part of the Brown case that I think distinguishes from this case completely. And the Judge said, he spoke about the Fair Labor Standards Act as constituting in Laudadio against White. And, that was the case where the draftsmen in that case were employees of a contractual firm. So here, now this is a judge, and this is a case that held and the only case we know that held that an independent engineer was under the Act. So, here defendant employee's preparation of plans and specifications for the repair and improvement of existing instrumentalities of commerce together with the activities of the resident engineer at the actual job site was sufficient to bring him within the coverage of the in commerce rights. Now we submit that we have no evidence in this record about having done any work on an existing instrumentality of commerce nor is there any record, any evidence in the record about having ever had a man at a job site a resident engineer at the job site to supervise construction. We just don't do it. We have never done it and there is nothing in the record that says we did that. So we submit that -- that this independent profession firm is not producing goods in commerce and it's too remote to be considered as an employee engaged in this. Thank you.
Earl Warren: Ms. Margolin.
Bessie Margolin: I have a slight amendment to make to my statement as to draftsman here would be covered with -- with the good point would necessarily be drawn into it and we also of course rely on the Eight Circuit's decision that the plans and specifications are -- are a part of the improvement to the interstate instrumentality for which they're specifically designed. Now, we do not construe the Eight Circuit as having limited itself to the case where the -- resident engineer goes out. They very -- made it very clear that they regarded the plans and specifications as a part of the improvement project because every detail is guarded. Every detail of the -- of the construction, the materials that go in to the construction are guarded by these plans and specifications, but I do want to spend a little time on the good point because it's unquestionably is the as counsel, my adversaries conceded that if these plans and specifications are goods that in itself would -- would cover all the employees involved here. And we think that the -- it's so clear that they are goods, that even the way respondents themselves have treated them are goods that that alone should be sufficient to hold the -- that there is coverage here.
Speaker: Where do you find over and I want to say this was a good time but why is it the goods to be is covered with --?
Bessie Margolin: The draftsmen?
Speaker: No, not the draftsmen, the field -- the field men.
Bessie Margolin: Oh, they gather the -- they make the surveys and gather the materials which are then incorporated into the blueprints and the drawings and the plans. There -- may do -- they actually do the work that goes into those plans then those are shipped into state of course, the plans themselves. Now the -- in the stipulation it stipulated these plans and specifications are called property. It's stipulated that they become the property as when they are prepared for the Government projects. They become the property of the Government. It's stipulated that for private concerns, they remain the property of the respondents and copies are given to the clients so that they can use them later if they need repairs on their project.
Speaker: Is the property in terms of goods?
Bessie Margolin: Well, but now the definition of goods in this Act was certainly broad enough to cover any kind property. Now we ask the Court to consider what Judge Soper's reasoning was. This -- his first reasoning and he rested largely on the Turpin case which was the District of Maryland which was decided some four years I think before the Powell decision came down. The Powell decision made it very clear that the Act was not limited to articles of trade. Western Union had already made it clear, it's true. That this was -- what not was so limited, it was specifically amended, the definition of goods so as not to limit it to all articles of trade and in Powell, this Court said Congress was concerned with eliminating widespread existence of substandard working conditions which could be reached by Congress through its through interstate, through its power to regulate interstate transportation of the products of those conditions. In other words what Congress was concerned with was the work product of substandard condition -- of substandard conditions and there's no question but what these plans and specifications are the work products of employees who are doing routine work, they're the same kind of workers that Congress was concerned with and in fact that the plans and specifications are not merely the architect's ideas or the engineer's ideas. They're the composite of the work of ordinary laborers and the architect and what seems to be obvious here is that because professional people supervise these ordinary laborers, ordinary employees that therefore the employees should be exempt their -- as these professionals here.
Felix Frankfurter: May I ask one question before you sit down, Ms. Margolin. The definition of goods after giving, reciting various categories of what it means to be goods, and all of which I want to understand where products, commodities, merchandize or other -- or subjects of commerce of any kind.
Bessie Margolin: Of any kind.
Felix Frankfurter: What I want to know is whether subject of commerce of any character is the inclusive category which obtained everything else.
Bessie Margolin: Articles are subject. Well, they put --
Felix Frankfurter: Articles or subjects of commerce. Does that mean regulations under the Commerce Law are subject to commerce?
Bessie Margolin: I think that they're intended to mean where anything that was regular both under the Commerce Clause.
Felix Frankfurter: Yes but we've held the and you well know (Inaudible) -- isn't that extensive as the Commerce Clause?
Bessie Margolin: Yes and I -- and we in out reply brief as I think have undertaken to answer that argument which we think misled the Court and has misled a lot of -- of other people and with choosing as administrative extent. We've gone into them -- which -- which may be the forgotten legislative history to show what -- what Congress did intend to limit us to and we did recognize that the -- that the Act is not co-extensive with the constitutional power but the statutory language that Congress showed insofar as they did go, they did intend to go the whole way and this Court has said so repeatedly.
Felix Frankfurter: Well that's -- that's something said in the opposite in Kirschbaum which enforces it.
Bessie Margolin: Well, I don't think so. You pointed out --
Felix Frankfurter: It's included.
Bessie Margolin: You pointed out in Kirschbaum that Congress did not go the whole way and you pointed to the fact that they have dropped the effect in commerce language and they had also dropped the specific provision which would have covered intrastate production, producers who do not sell across state line but who would be covered because they competed with interstate producers. Those are the two things the Kirschbaum opinion referred to and we point out that those are the two things that's about all that Congress intended was the -- not to get the intrastate producers because everything else is specifically exempted. It did take out that provision based on the Shreveport case but then they're adapted. Now the effect in commerce language was in the house bill and all these we have gone through for the benefit of the -- of the Court we have put it in a our reply brief and I think that the net result the Court will see that actually the Act adopted, went much further than any previous bill except for dropping the Shreveport Doctrine.
Felix Frankfurter: Now I happen to know what I get from your reply is that the phrase or subject of commerce of any character were intended to construe -- to convey that the legal term subject -- subject of anything that under the Commerce Clause maybe regulated by commerce short of the Shreveport Doctrine, was there?
Bessie Margolin: Well, subject -- well, subject of commerce and as commerce is defined in the Act which is transportation, communication, transmission and thirdly these plans and specifications are subjects that can be transported across state lines and all.
Felix Frankfurter: Do you think Jefferson would regard these -- these architectural plans as goods under this definition?
Bessie Margolin: I don't think that I doubt if he was -- that he was engaging in this type of industrial act or -- this production.
Felix Frankfurter: That architects who are doing that protection --
Bessie Margolin: Well, of course I think he might have regarded it as such if He would -- using it in industry and --
Felix Frankfurter: And does the Court -- (Voice overlap) and this -- were adopted as you are --
Bessie Margolin: But I think there's no doubt that Congress changed that language to -- to get beyond just ordinary articles. Now Judge Soper says nobody would ordinarily think of it as saying – goods, but this Court had said specifically that Congress adopted unusual definition here and they take precedence over the ordinary colloquial use -- usage and as I say that there's no question but what plans and specifications are used for a lot of things and they all sometimes show that they were regarded as property and valuable property. And on --
Felix Frankfurter: It's in the act that the commerce -- it can out of the commerce enforcement. Jefferson's draft told by some of these or by the auctioneer from New York that they are Articles of Commerce.
Bessie Margolin: Well, if you're talking about the commerce in the commercial sense which I think Judge Soper was too which doesn't apply here. I think the subject -- if -- it read before Articles of Trades and Congress took out the trade and said subjects of commerce of any character. And I think that was done deliberately to -- because they wanted to get a broad coverage in this Act. They didn't -- they want to keep within the constitutional scope and so -- insofar as it was limited, Congress -- it's obvious from the debates that it limited it only it thought it might get into trouble constitutionally.
Felix Frankfurter: If you ask us to take this case because of it's conflict with Brown?
Bessie Margolin: That was one of the grounds. The other was of its importance because there are so many architectural or engineering firms that -- and many employees that are affected.
Felix Frankfurter: But the conflict point was in this or not?
Bessie Margolin: The conflict point was involved. The Eight Circuit did not decide the goods point but they held that the plans and specifications were so closely and vitally indispensable. It's admitted here that the type of structures on which respondents for which they prepare plans couldn't be built without these -- without these plans. They -- they get every detail of the building and the materials and everything else from the plan and Eight Circuit held that -- that anything that close to the actual instrumentality and its improvement is a part of it.
Felix Frankfurter: Why did they raise it in parenthetically moving the equipment, do you know?
Bessie Margolin: Marine equipment.
Felix Frankfurter: Goods including marine equipment.
Bessie Margolin: I don't -- I don't -- I've never looked up the legislative history of that.


Warren E. Burger: You may continue.
Paul C. Matthews: Mr. Chief Justice, and may it please the Court. This morning I had already discussed the compelling analogy between the right of the widow to recover for loss of society and that of a wife of a badly crippled worker. I would like to spend the remainder of my time discussing the decision of Judge Friendly in the Ignerie case, discussing the Christofferson case, and discussing the contentions of the petitioner with regard to the uniformity. With regard to Ignerie, I believe that the decision of Judge Friendly was not in any way dogmatic, did not intend to be engraved in stone, but rather was invitational and that it left open a door through which the Alvez court, the Court of Appeals for the State of New York stepped through in the decision below. Judge Friendly wrote in Ignerie, "If there were evidence that maritime law generally recognized a claim for negligent injury to such an intangible right, or if the common law clearly authorized a wife's recovery, the gravitational pull of such concepts with respect to the wife of a longshoreman might be stronger than that of the analogy to the statute denying such a recovery to a seaman's wife." At the time, in 1963, when Judge Friendly wrote those words, 19 jurisdictions had denied the remedy. Of those 19, today 15 have reversed the law so that we have at the present time only four jurisdictions of those 19, plus one additional, that being Louisiana where the right has been denied. In addition, Judge Friendly indicated that the rights were too personal, too intangible and too conjectural to be determined by a jury, but that contention was answered by this Court in Gaudet which indicated that the same argument could be made with regard to any damages for pain and suffering and which indeed indicated that for many, many years, indeed centuries, that courts and juries had been called upon to pass upon the right for loss of consortium. With regard to a contention I think that was made or a mention in Judge Friendly's opinion, that the damages were parasitic in nature, this I think was well answered by the court below, by Judge Jasen who said, referring to a wife, in the good times she lights the hearth with her own inimitable glow, but when tragedy strikes it is part of her unique glory that forsaking the shelter, the comfort, the warmth of the home, she puts her arm and shoulder to the plow. We are now at the heart of the issue. In such circumstances when her husband's love is denied her, his strength sapped and his protection destroyed, in short, when she has been forced by the defendant to exchange a heart for a husk, we are urged to rule that she has suffered no loss compensable at the law. But let some scoundrel dent a dishpan in the family kitchen and the law in all its majesty will convene the court, will march with measured tread to the halls of justice and will there suffer a jury of her peers to assess the damages. Why are we asked then in this case to look the other way? Is this what is meant when it is said that justice is blind?"
Thurgood Marshall: Mr. Matthews, do you know any way we can get Congress to pass on this?
Paul C. Matthews: Your Honor --
Thurgood Marshall: I mean the more you go on with it, it seems like something Congress should get into.
Paul C. Matthews: I think, Your Honor, that Congress has quite clearly delegated this area to this Court, and I think that in the Fitzgerald case this Court recognized its duty and its responsibility in that area. So I don't think it is something that in any means is within the province of Congress. I --
William H. Rehnquist: Do you think Congress could not pass a law saying the right of consortium shall not be a compensable element in an action like this?
Paul C. Matthews: Of course they could do so, but the fact that they have not done so one way or the other is nothing that should be influential on this Court. As this Court indicated in the opinion in Moragne, Congress has specifically left to this Court the duty in the maritime law of declaring what the rights of injured persons should be.
William H. Rehnquist: That is not quite the same as saying it is not within the province of Congress.
Paul C. Matthews: The power of course. I would be the last to deny that, sir. This Court indicated in Moragne that certainly it better becomes the humane and liberal character of proceedings in admiralty to give then to withhold the remedy when not required to do so by established and inflexible rules. The basis for the statement that a blue-water seaman does not have or the wife of a blue-water seaman does not have this right is in the Christofferson case, where the Court of Appeals for the Fifth Circuit considered the right of the wife on three grounds. First, they considered the Jones Act, which they found did not allow this remedy, based upon Judge Friendly's decision in Ignerie. Secondly, they found that with respect to the claim for unseaworthiness, there was no right because of the decision of Judge Friendly in Ignerie. And thirdly, they found that there was no right under the law of the State of Louisiana where the injury had occurred by examining the state law. This I think, without trying to read their minds, had to do probably with the decision of this Court in Just v. Chambers which indicated that the law of the states may be used to fill in voids in the maritime law. So we have a situation where, according to the Christofferson case, is some 44 of the jurisdictions of this country, such a remedy would be allowed. In the name of uniformity, the petitioner in this case would have you to turn back the clock on almost half a century of progressive decisions, affirming the concern of admiralty for the welfare of those injured within its jurisdiction. I would just point out further that aligning the maritime law with the overwhelming majority of states will eliminate confusion where a single injury may result from violation of duties owed under state law by one defendant and maritime law by another, and it would be a situation similar to that which is involved in the Consolidated Machines case cited by the petitioner in its brief. Now, if I have any time left, I would mention what I concede to be the role of the Court of Appeals of the State of New York.
Warren E. Burger: You have until the red light goes on.
Paul C. Matthews: Very well. I simply would like to say on this issue which was designated by the co-respondent now as a reverse Erie issue, that the -- and which, of course, could not affect the substantive decision of this case -- that unless the state courts are permitted to examine the same data that a state court -- I'm sorry, unless the state courts are permitted to examine --
Warren E. Burger: Go ahead and finish your sentence.
Paul C. Matthews: -- to examine the same data that a federal court could examine in reaching the determination, that in fact they would be issuing, they would be giving second-rate justice. And if it was known that the state courts were bound blindly to stare decisis whereas the federal courts were free to use their reasoning in interpretation of the decisions of this Court, that that would lead to forum shopping. Thank you.
Warren E. Burger: Very well. Do you have anything further, Mr. Carr?
Stephen K. Carr: Yes, sir, just a few words. The respondent would urge that no distinction be made between the measure of damages in the fatal and non-fatal injuries. In doing so, he would ask the Court to make a distinction between longshoremen and the wives of longshoremen and seamen and their wives. It is petitioner's position that it makes eminently better sense if a distinction has to be made to make that distinction between life and death than it does to make an artificial distinction between longshoremen and their progeny and their wives and seamen and their wives. The longshoremen's rights are a derivative from seamen and to elevate the status of a longshoremen and his wife to a position above the employee from whom he derives his rights makes no sense at all. If respondent's position were to be accepted, it would mean that every time a longshoremen is injured, whether it be a bump, a scrape, a laceration, a bruise, he would be accompanied in his lawsuit by a spouse seeking sentimental damages.
Warren E. Burger: Well, they would have to produce some evidence to support that, of course.
Stephen K. Carr: I suggest, Your Honor, that that --
Warren E. Burger: If it was a very mild injury, there wouldn't be much prospect, would there?
Stephen K. Carr: MIt would nevertheless give him or her the right which is the right that we are addressing ourselves to today. I would like to finish by saying that this right that we were discussing at lunch or just before lunch with respect to our standing before this Court, is a right -- if there is any reservation among the Members of this Court about our standing -- is something that I would ask your permission to give us leave to brief the question if in fact you feel that we are not here properly.
Byron R. White: Could I ask you if the New York court system has finally disposed of this federal issue of the right of the wife?
Stephen K. Carr: The New York state court system has finally disposed of the issue of the right of the wife.
Byron R. White: You have lost at trial?
Stephen K. Carr: Well, I don't like to put it that way.
Byron R. White: Well, judgment has gone against you, your client?
Stephen K. Carr: There is judgment against my client. I also have an indemnity judgment against the third-party defendant.
Byron R. White: Well, on the consortium issue the judgment has gone against your client?
Stephen K. Carr: Yes, indeed it has, Your Honor.
Byron R. White: And that issue has not -- if you want to appeal in the state court system, the right of the wife is not subject to relitigation, is it?
Stephen K. Carr: The right of the wife is final as far as the New York state court system is concerned.
Warren E. Burger: Except as to amount, I suppose.
Stephen K. Carr: Except as to amount.
Warren E. Burger: Conceivably a reviewing court might reduce it.
Stephen K. Carr: With respect to excessiveness, that is so. But as far as the wife's right of consortium, that right is final in the state courts and cannot be relitigated in that forum.
Byron R. White: Well, suppose you appeal the judgment to the appellate division and one of the grounds for appeal is the wife has no right in the first place under federal law.
Stephen K. Carr: I can't possibly make that argument at this stage.
Byron R. White: Well, that would the appellate division say? What would the appellate division say if you did? What would they say?
Stephen K. Carr: The appellate division would say this is res judicata, this has decided by the New York state Court of Appeals and does not permit you to pursue the matter further.
Warren E. Burger: They might even say that it is a frivolous argument in light of the Court of Appeals holding.
Stephen K. Carr: Exactly.
Byron R. White: Well, it sounds to me like then what you are really arguing jurisdiction is that the only time you could appeal the Court of Appeals judgment that is before us now is now.
Stephen K. Carr: Is today.
Byron R. White: Because otherwise you would be untimely.
Stephen K. Carr: I believe that is the case.
William H. Rehnquist: Well, suppose you had not appeared at the time you did and simply went back, tried the case, gone up to the appellate division, recognized it was law of the case of New York or stare decisis or that there was no bar to consortium rights, argued other issues in the Court of Appeals, do you think you would have been precluded from appealing to this Court on the consortium issue at that stage?
Stephen K. Carr: Yes, sir, I believe I would, having failed to appeal from the appellate division's reversal of the lower court, that I would have lost my right on the consortium grounds. As I understand the procedure, Your Honor, I had my time to perfect the appeal on that particular issue and, having failed to do so, I would have waived my right.
Warren E. Burger: Thank you, gentlemen. The case is submitted.