Arceneaux v. Louisiana – Oral Argument – January 15, 1964 (Part 1)

Media for Arceneaux v. Louisiana

Audio Transcription for Oral Argument – January 15, 1964 (Part 2) in Arceneaux v. Louisiana

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Earl Warren:

Number 76 (Inaudible)

J. Minos Simon:

Mr. Chief Justice, may it please the Court.

This matter is before the Court on a writ of certiorari to the Louisiana Supreme Court and there is basically involved the constitutionality of vagrancy statute of the State of Louisiana.

I suspect that a succinct statement as to the surrounding facts will be helpful and appreciative of the full import of the question before the Court.

The petitioner is an illiterate person and a poor person and in April 1961 was engaged as a farm laborer by a resident of Lafayette Parish, Louisiana and the employer in question happened to be the father of one of the arresting deputies who arrested the petitioner on the charge of — in question.

The agreement for or rather control in a working arrangement was that, the petitioner was to be paid $4 a day for his services and to be provided with his food and also lodging, the lodging consisting of a small building approximately 8 by 10 in which he was permitted to reside.

The employer paid the petitioner for about a month and thereafter discontinued paying his wages.

The petitioner continued to ask payment, but on each occasion he was told that he would be paid later.

As a consequence of course the petitioner was, had no funds with which to leave and seek out other employment and he lived in virtual peonage for approximately eight moths.

And then on one day approximately eight months after the initial engagement of his services the — an argument arose between the employer and petitioner as to chores to be performed as a result of which the employer told him to leave his premises.

He agreed to do this and he asked permission of the employer to leave his personal belongings in this little one room shack that he occupied, his small amount of clothing that he had and this permission was granted.

And he took leave to go to Nevada in search of employment where one of his sisters lived but because of his lack of skill he was unable to obtain employment in Nevada and returned Lafayette Parish and on his return however, he found other employment on a farm not to far removed from his previous employment.

He returned to his shack to pick up his meager belongings and night time was had already come about and after he was in this little building for approximately ten minutes he heard a rap at the door and upon opening the door there were four deputies from the Sheriff’s office there to arrest him.

They told him that there were there to arrest him on the instruction of his employer on a ground that he was trespassing.

He surrendered himself to them and they brought him to Parish jail.

Arthur J. Goldberg:

(Inaudible)

J. Minos Simon:

Yes sir these are —

Arthur J. Goldberg:

(Inaudible)

J. Minos Simon:

Yes sir he is a full time deputy, his name is Murphy Leon and the employer’s name is I think Nevis Leon and of course Leon son was there with one of the arresting officers.

When he arrived there they rather than charge him with trespassing the next day they charged him with, they filed an affidavit charging him with being a vagrant.

Byron R. White:

(Inaudible)

J. Minos Simon:

That was never disclosed Your Honor and no further mention was made of that fact.

Byron R. White:

You say (Inaudible)

J. Minos Simon:

That was a discussion that the petitioner overheard between the arresting officers and then the deputy who used him — manager of (Inaudible)

Byron R. White:

(Inaudible)

J. Minos Simon:

As I recall deputy Peacock mentioned to one of the four arresting officers that the charge of trespass would not lie.

He didn’t given his reason for it and that was the last it was heard of trespass charge and they filed a charge of vagrancy.

Byron R. White:

(Inaudible)

J. Minos Simon:

I don’t know Your Honor obviously they all knew why he was there and I doubt you could convict him of being a trespasser because he was there with the permission of his former employee at (Inaudible) — he had obtained his permission to leave his clothes there and he was there to get his clothes for the purpose of moving away.

And actually the charge was actually filed against him was that he was on this premises without being able to account for his presence there.

Byron R. White:

(Inaudible)

J. Minos Simon:

I wouldn’t think it’s too substantially different.

I think that the basic difference is the intention of going up on another’s property would probably the trespass charge, whereas this here obviously (Inaudible).

Byron R. White:

(Inaudible)

J. Minos Simon:

If the initial entry is with consent unless there is a specific instruction to leave then of course it will not, staying will not constitute the trespassing.

Byron R. White:

(Inaudible)

J. Minos Simon:

That’s substantially yeah, where it states, yes Your Honor.

Of course the arresting officers are quite certain, all knew why he was there, of course they never asked him to explain, he didn’t know that he was arrested for being a vagrant or of being there without being able to give an account of his lawful presence.

Byron R. White:

(Inaudible)

J. Minos Simon:

No sir, there was no accounting asked any time, in fact as I stated the only thing they advised him of was the fact they were arresting him because the owner wanted him to arrest him for trespassing on his property.

Byron R. White:

(Inaudible) he was charged with certainly he knew he was charged with vagrancy.

J. Minos Simon:

That he had paid the services of counsel, I would imagine because this boy can’t read or write.

William J. Brennan, Jr.:

Mr. Simon, I’m looking in page 29 of your brief —

J. Minos Simon:

Yes sir.

William J. Brennan, Jr.:

Now you have this statute, do I understand that the prosecution was for subdivision 8?

J. Minos Simon:

Yes sir, Your Honor.

William J. Brennan, Jr.:

No question about that.

J. Minos Simon:

No, no yes Your Honor no question about that and if there has been an error in that on that particular page the word lawful is omitted and this was done in advertency.

Your Honor it should read, without being able to account for their lawful presence therein, the word lawful was —

Byron R. White:

(Inaudible)

J. Minos Simon:

Yes sir, this time yes, Your Honor.

Earl Warren:

Mr. Simon, when was, the relation to the time he was arrested was the vagrancy information filed.

J. Minos Simon:

The next, it was not filed until January of 29th, he was arrested on January of 25th but the — signed in the affidavit not a deputy and the officer signed the affidavit on the 26th.

Now, then this charge was filed with the clerk’s office on the 29th.

Now this petitioner was not brought to the committing magistrate as law directs that he be brought to committing magistrate upon being arrested.

However, the charge was submitted to the acting Sitting Judge who issued a warrant for his arrest even though he was already arrested of course but in the warrant itself the officers were ordered to bring him before the magistrate or before the acting and sitting judge and this was never done.

William J. Brennan, Jr.:

How long was he held?

J. Minos Simon:

Now, he was held Your Honor for a period of four months actually.

He was held without being able to use a telephone or call a counsel from January of 25th until February of 26.

He made several efforts to — he asked — he made a repeated requests to use a telephone they refused to let him use a telephone.

Byron R. White:

There is — at one time that was a guilty pleading.

J. Minos Simon:

At the end of four months and eight days there was a guilty plea which was raised by the opposition here in their motion to dismiss because the question before the Court is moot.

Byron R. White:

How about the circumstance of the guilty plea?

J. Minos Simon:

Well, I was going to get into —

Byron R. White:

(Inaudible)

J. Minos Simon:

I can do so now.

Byron R. White:

No your own time?

J. Minos Simon:

In any event I think the history of this thing is somewhat important it sinuate itself significantly the question before the Court.

While the record shows that a motion was made by the petitioner for a bond.

That is incorrect.

He never made any motion at any time.

He never had counsel till February 26th, sir.

William J. Brennan, Jr.:

I gather from effective (Inaudible), the day he was arrested (Inaudible) for how long?

J. Minos Simon:

For a month.

William J. Brennan, Jr.:

For one month?

J. Minos Simon:

Yes sir.

William J. Brennan, Jr.:

How do you finally get (Inaudible)

J. Minos Simon:

I don’t know.

I can just judge from what he told me which is contained in his affidavit he had asked to talk to two or three other lawyers and they had consistently refused to let him use the telephone, and you mentioned my name and then let him use it, of course I filed a suit before against the sheriff, maybe that have inspired him to let him use the telephone.

William J. Brennan, Jr.:

But he finally got in touch with you some time —

J. Minos Simon:

Yes sir on the 26th, yes sir.

William J. Brennan, Jr.:

And then what happened after that?

J. Minos Simon:

On the 27th I filed a motion for habeas corpus and in the alternative for preliminary examination, that’s a procedural vehicle whereby the state is called upon to show probable cause for holding a party a prisoner.

Habeas corpus of course has the same function as the ordinary habeas corpus anywhere else.

In response to that — of course the judge incidentally granted the motion and fixed a hearing on habeas corpus on March the 8th and also fixed a hearing on the preliminary examination for March the 8th.

William J. Brennan, Jr.:

Now which judge is this?

J. Minos Simon:

This is District Judge, no sir this is State District Court Judge, yes sir.

Now when March 8th came about the sheriff in response to the habeas corpus when the case was called up, extracted from his pocket the warrant of arrest.

Now of course under the clear statute of our state Title 15 Section 134 his response must be in writing.

However, the reasons best known to the Court, the Court accepted this as a response and immediately upon the sheriff producing the warrant of arrest described the habeas corpus was denied without granting any hearing whatever in connection with it.

J. Minos Simon:

Now that again violates the statutory laws of the state because under Title 15, Section 134, the Court must grant a full and fair hearing in connection with the habeas corpus.

Tom C. Clark:

I thought he filed (Inaudible)

J. Minos Simon:

Sir the next –

Tom C. Clark:

District Attorney –(Inaudible)

J. Minos Simon:

I’m getting to that sir.

Now then after the habeas corpus was thus dismissed, then the Assistant District Attorney arose and made an oral motion for a continuous.

Now without — the state (Inaudible) he hadn’t been served, the law doesn’t require that he be served, of course the sheriff had been served with all the papers and also the law required expressly that all motions for continuous must be in writing.

The judge nevertheless entertained his motion, oral motion for continuous and granted it until the next day.

The next day the District Attorney came in and filed for the first time a Bill of Information.

(Inaudible)

J. Minos Simon:

Same ground.

Same sort of question.

J. Minos Simon:

Yes sir the same ground.

Then upon the basis of the filing of this Bill of Information the District Judge did not deny a preliminary examination but on the contrary recalled his original order for preliminary examination and dismissed the entire matter.

While he made the statement that he was not informed, that the petitioner was an indigent person, in fact he had be so informed and the record shows that upon the making of the bill of exception to his ruling, counsel informed the Court that as heretofore stated petitioner is unable is post bond and cannot be released on that basis.

Now —

(Inaudible)

J. Minos Simon:

$50, yes sir.

And we applied for a writ of habeas corpus as well as for other writs before the State Supreme Court.

(Inaudible)

J. Minos Simon:

This is an original writ of habeas corpus and this is a writ of certiorari, mandamus and prohibition.

It might sound strange to combine them all together, but it has been a ruling of our Supreme Court that where you request some affirmative action, even though embraced by the certiorari writ, you should ask for mandamus or an abundance of caution we asked.

Byron R. White:

Didn’t you do something else at the Trial Court before going to Supreme Court after they dismissal or the ramification of the order?

J. Minos Simon:

We did something but not in this chronological order.

We applied for this writ of review and also for habeas corpus before the State Supreme Court and that was denied without a hearing, the Court simply —

William J. Brennan, Jr.:

How about the (Inaudible)

J. Minos Simon:

Chronologically in the State Supreme Court.

William J. Brennan, Jr.:

We were up to March —

J. Minos Simon:

We’re up to March, yes sir, we are in March —

William J. Brennan, Jr.:

How long does it take for you to get to the Supreme Court (Inaudible)

J. Minos Simon:

Well the ruling of the Court was made on March the 9th and on March 13th we had filed our writ in the State Supreme Court.

On March 16th that application had been denied by the State Supreme Court.

Then on the March 31st we filed our petition before this Court in 1962, and petitioner is still in jail.

Byron R. White:

Yes, but didn’t you —

J. Minos Simon:

Now then thereafter Your Honor.

Byron R. White:

Now you’re going to talk about the guilty plea?

J. Minos Simon:

No sir.

In April, on April of 4th of 1962 while these matters were pending, the case had never been fixed for trial, even though apparently we were ready for trial, we made an app — we file the motion to quash.

William J. Brennan, Jr.:

To quash the information?

J. Minos Simon:

To quash the information and that was taken under the advisement by the Court and has never been decided; we’ve never received the decision on that.

Then on May the 3rd —

Potter Stewart:

What was the ground for that motion?

J. Minos Simon:

That the act I believe was unconstitutional and with no probable cause as I recall Your Honor. That was argued and submitted to the Court and no decision was ever rendered.

Then on —

(Inaudible)

J. Minos Simon:

Yes sir.

Sir?

Tom C. Clark:

(Inaudible) asked for a speedy trial.

J. Minos Simon:

We asked for a speedy trial, we finally — it was obvious that the criminal term had gone by, was practice completed, we filed a formal motion for a speedy trial alleging that he had been illegally detained and except on May the 3rd in 1961 that it is on this day that —

William J. Brennan, Jr.:

(Inaudible)

J. Minos Simon:

Yes sir Justice Brennan.

William J. Brennan, Jr.:

Have you referred any of your applications anywhere for relief, any Federal Constitutional question (Inaudible)

J. Minos Simon:

Oh yes sir.

William J. Brennan, Jr.:

What were they?

J. Minos Simon:

At the time that we took exception to the ruling of Court on May the 9th, we asserted the constitutional —

William J. Brennan, Jr.:

That was after the order you took exception to.

J. Minos Simon:

Well that was after the order that’s correct, except that before that order we have stated there was no support either in law or fact for the charge.

William J. Brennan, Jr.:

Yes but afterwards, it was after the Court ruling of March the 9th that you then took exception, and I don’t know what that means, but it didn’t call for any further action by the Court, did it?

J. Minos Simon:

Your Honor we were never granted a hearing whereby would have raised those questions.

We would have raised those questions. We intended to raise those questions in the event that the state would have presented any facts at all justifying the prosecution of the petitioner, but you must recall that the District Judge never granted us any hearing whatever, whereby where we could have raised those particular questions, in other words —

William J. Brennan, Jr.:

(Inaudible) did it include any Federal Constitutional question?

J. Minos Simon:

Yes, but that was made on April 4th,yes Your Honor.

William J. Brennan, Jr.:

And well did that — when I’m trying to get at, when you first explicitly asserted Federal Constitutional claims.

J. Minos Simon:

When the question first arose, when we were denied of any rights whatever, during oral argument we presented it to the judge and then at the (Inaudible) we also made a formal exception in the record.

Byron R. White:

This was March the 9th.

J. Minos Simon:

March the 9th.

Byron R. White:

That is the first time you ever used, referred in anyway to the Federal Constitution.

J. Minos Simon:

Yes it specifically other than to state that there was no support in law or fact for the charge.

Now in response the habeas corpus, the party is supposed is set for the basis for holding this party, and then we are in turn entitled to adduce any evidence or present any reason why the holding is illegal, whether it’s constitutional grounds or otherwise, we couldn’t anticipate what the basis of the prosecution —

Byron R. White:

You orally presented your federal (Inaudible) claim in argument to the judge.

J. Minos Simon:

In argument to the judge, that’s correct Your Honor and then after the ruling of the Court where he denied any hearing whatsoever, we pointed out — we took our bill of exception and raised it.

William J. Brennan, Jr.:

And then formally you did make the same representations on Federal Constitution grounds in your motion to quash the information.

J. Minos Simon:

That’s correct, as my memory serves me Your Honor which is not —

Byron R. White:

In the record at page 12, this is your habeas corpus petition in the Supreme Court. Now you recite there at paragraph 20 what your objections where in Trial Court.

J. Minos Simon:

Yes Your Honor.

Byron R. White:

Are those substantial to what you — are those what you presented in the Trial Court?

J. Minos Simon:

My law partner was there and I’m informed that’s what he did, no record was made of that.

Byron R. White:

And then over on 14 are the — page 14 paragraph 26 are the grounds which you presented to the Supreme Court of Louisiana specifically.

J. Minos Simon:

Additional grounds, yes Your Honor.

Byron R. White:

Additional ground?

J. Minos Simon:

Yes sir.

Byron R. White:

It sounds like you were just specifying here what precise grounds you want ruled on in the Supreme Court of Louisiana.

J. Minos Simon:

Yes sir.

Byron R. White:

Because there is some difference between the two.

J. Minos Simon:

There were no — there is some difference.

It was just a question of articulating our opposition as much as possible.

There were no — we weren’t raising — we were raising of course these questions because necessarily they arouse — some of them arouse — the question of a speedy trial for example would necessarily arise after the denial of any hearing whatever, and a refusal of the Court to grant a hearing operates to deprive (Inaudible) Due Process, that would necessarily have to arise after the District Court hearing Your Honor.

Then of course —

William J. Brennan, Jr.:

So we’re up to May.

J. Minos Simon:

Sir?

William J. Brennan, Jr.:

Now we’re up to May, aren’t we?

J. Minos Simon:

Yeah we’re in May, on May the 30th Your Honor and on that date that’s when we finally applied formally you know had requesting informally from time to time to find out when the case was coming up for a speedy — for a trial.

And it was on this date that the sheriff went to our client while he was in jail and we were serving without compensation, we thought the fellow was in pretty bad shape, he went to our client while he was in jail and he asked him how he felt, and of course he told him he didn’t feel too well. He asked him, would he like to be released from jail?

And he said, he certainly would like to be released from jail.

So he told him that if he pled guilty he would assure him of his immediate freedom.

(Inaudible)

J. Minos Simon:

The sheriff made the promise and he asked to be released without having to plead to anything because he was guilty of nothing.

The sheriff said that was impossible, so —

(Inaudible)

J. Minos Simon:

I was — record, this was two months after the application of this petition was before this Court.

Arthur J. Goldberg:

Were you ever consulted?

J. Minos Simon:

I was not consulted at all.

In fact the petitioner states that he asked to call me on the telephone and they refused to permit him to do so.

Arthur J. Goldberg:

(Inaudible)

J. Minos Simon:

That he was brought before — they transferred the charge from the state district court to the city court. I say they, I mean the Assistant District Attorney then took the charge from the Parish —

William J. Brennan, Jr.:

(Inaudible) back to the city court?

J. Minos Simon:

I don’t know exactly just how he did this except that I think he filed another charge before the city court rising out of same facts or circumstance because I see in June thereafter he dismisses the state charge, well whatever method he used, I really can’t tell Your Honor at this time.

Tom C. Clark:

(Inaudible) file a new charge.

J. Minos Simon:

He apparently filed a new charge in city court, I would —

William J. Brennan, Jr.:

The identical charge was now in the city court, is that —

J. Minos Simon:

The identical charge rising of the same factual situation.

Apparently couldn’t transfer it because it had been Nolle prosequi in the District Court.

So together, the Assistant District Attorney together with the sheriff, took our client out of jail without our knowledge, brought him to city court and then had him enter plea of guilty.

Now then the Assistant District Attorney went to the city judge and told – recommended to the city judge that the punishment to be for the time served and in carrying out the recommendation of the Assistant District Attorney, this is the sentence which the city judge imposed upon him, time served –

Byron R. White:

Well does the — you know it seems to me this is rather important what charge he was — he plead guilty to, if plead guilty to this one, isn’t this a state statute, the state vagrancy statute?

J. Minos Simon:

Yes sir.

He plead guilty to the same charge Your Honor.

Byron R. White:

Is the city statue like this, city ordinance like this?

J. Minos Simon:

I don’t know, but there is — but he was —

Byron R. White:

Has the city got jurisdiction?

J. Minos Simon:

It has jurisdiction.

Byron R. White:

Oh it has jurisdiction –

J. Minos Simon:

It has jurisdiction.

But this — as I recall, this was the identical charge that was filed against him in the city court.

William J. Brennan, Jr.:

According the record of the — oh no, of course not because all this happen after (Inaudible) while the petition was pending here.

J. Minos Simon:

Yes sir Your Honor.

It’s appended to our supplemental brief.

William J. Brennan, Jr.:

Well is the charge itself –

J. Minos Simon:

Well the charge, I don’t believe that the charge is, but the affidavit of the city judge as to what transpired is appended to it, which is substantially —

William J. Brennan, Jr.:

Well, may I just ask?

J. Minos Simon:

Yes Your Honor.

Here is what the city judge states Your Honor.

He states that the charges were transferred from the docket of the 15th District Court and for the Parish of Lafayette, Louisiana.

One charge was for the crime of vagrancy and the second charge was for commission of an act of simple battery.

So it was — he considered it a transfer even though the original charge was not Nolle prosequi.

Byron R. White:

Was it a transfer of the same charge?

J. Minos Simon:

Transfer of the same charge.

Byron R. White:

Well, the only thing I don’t follow Mr. Simon — I though you indicated — you made a motion to quash the information, that’s never been —

J. Minos Simon:

Never been ruled upon.

Byron R. White:

Well, does that information still extend, is that still outstanding?

J. Minos Simon:

It has dismissed as June the 4th, the District Attorney null — moved for the Nolle prosequi.

Byron R. White:

What did the city judge do then?

J. Minos Simon:

City judge entertained the plea and on the recommendation of the Assistant District Attorney imposed a sentence that was equivalent or equal to the time he had spent in the jail, so he let him go.

Byron R. White:

Well, that – then why would you Nolle prosequi a —

J. Minos Simon:

I don’t know.

Byron R. White:

Why would you cancel the information after that, I mean it’s all — you don’t Nolle prosequi information to somebody who has served his sentence, do you?

J. Minos Simon:

Your Honor the District Attorney would be able to answer that question, I certainly can’t.

Tom C. Clark:

(Inaudible) in the city court, so then we went back five days later, I gather, I all I know is what is in the record.

He then went back to the state court five days later and dismissed the charge, which is very often done by the District Attorney.

J. Minos Simon:

It was the same charge but it was dismissed.

Tom C. Clark:

Is that a different court?

J. Minos Simon:

Yes a different court.

Tom C. Clark:

Charged with battery when the first one didn’t charge?

J. Minos Simon:

I suppose, he felt that he was — on the minutes of the Court that should be somehow disposed off and that’s what he did.

William J. Brennan, Jr.:

Now I gather Mr. Simon that at the time we passed on your petition for certiorari and granted it, none of the facts of any event after March was before us, was it?

J. Minos Simon:

That’s correct.

William J. Brennan, Jr.:

And everything — and what we agreed to review was a judgment, sort of judgment whatever it maybe of the Supreme Court of Louisiana which denied you the review of the denial of habeas corpus and the application for original habeas corpus, the application for certiorari, prohibition and mandamus, that’s what we agreed to review, wasn’t it?

J. Minos Simon:

Yes sir.

William J. Brennan, Jr.:

Now how can we in the face of what happened after March?

J. Minos Simon:

Well, Your Honor my response to that is that this plea of guilty was procured through the coercive effect of an illegal detainment or detention of this petitioner and that it was procured through the illegal and relentless conduct and acts of state officials.

(Inaudible) before the state supreme court Mr. Simon.

J. Minos Simon:

Review of what, Justice Harlan?

The plea of guilty, the coerced plea of guilty?

J. Minos Simon:

No sir we did not enter the —

So that the Louisiana Supreme Court does not have these facts before it.

J. Minos Simon:

Not that plea, no sir Your Honor.

William J. Brennan, Jr.:

(Inaudible) by which that might have been reviewed, I gather now he had been released, he was out.

So I suppose habeas corpus, couldn’t proceed on habeas corpus, but is there — isn’t there some procedure in Louisiana by which you could have attacked that coerced guilty plea?

J. Minos Simon:

I can think of none.

William J. Brennan, Jr.:

Well, then how can we do it Mr. Simon?

J. Minos Simon:

I can think of no procedure.

My position to this Your Honor is that we’d be rewarding the state officials with illegal conduct.

William J. Brennan, Jr.:

I agree it’s rather outrageous, it seems to me, but I don’t know if we can do that.

J. Minos Simon:

Furthermore Your Honor, in my judgment a plea of guilty is the ultimate confession known to our courts and under Upshaw and McNab decision the courts have held that under these circumstances where a confession is procured through the coercive influence or illegal detention that confession is an absolute nullity and cannot be used against it.

William J. Brennan, Jr.:

But those cases apply only in federal prosecutions.

J. Minos Simon:

Oh I think that the rights not to be illegally detained is part of the concept of our liberty in the Fourteenth Amendment and where one is induced and coerced into pleading guilty or making an ultimate confession of guilty through this process —

William J. Brennan, Jr.:

This may —

J. Minos Simon:

They would be —

William J. Brennan, Jr.:

Believe me I am not against you –

J. Minos Simon:

I understand you.

William J. Brennan, Jr.:

(Inaudible) because this certainly sounds outrageous to me.

The difficulty is how do you escape — this is utterly moot, that is what we agreed to review, is that any longer open?

J. Minos Simon:

It’s my position Your Honor that the plea is an absolute nullity and the Court could ignore it as such because it was procured contrary to the constitutional rights of the petitioner and therefore it can’t operate as bar to review the basic liberty questions presented to the Court.

(Inaudible) proceeding in the Louisiana by which you could — no collateral post conviction proceeding by which you could have attacked this coerced plea?

J. Minos Simon:

I suspect Your Honor that at anytime the party could file an action to secure some kind of an injunction to erase this conviction from the record (Inaudible) illegally procured that would be available –-

But you’ve never done it.

J. Minos Simon:

I have never done it, I have never had the occasion to do it.

The honest trouble is you are asking us to pass on questions here apart from what Mr. Justice Brennan has said that the — no Louisiana courts have ever faced them –-

J. Minos Simon:

Actually Your Honor will get to that question only when you entertain the motion to dismiss because the question is moot, and I don’t that —

Well, this is a different question as to whether we have any jurisdiction apart from all this.

These questions are never raised before any Louisiana court.

J. Minos Simon:

The constitutional questions were raised Your Honor, which —

I’m talking about the coerced plea, the illegal detention, all those things were never raised apparently before the —

J. Minos Simon:

Your Honor the illegal detention was raised up to the point of March the 9th, they were raised, that he was denied of all of his legal rights, the night of the hearing, he was denied of the right to be brought before committing magistrate, he was denied of having the right to have the sheriff respond in writing to his writ, he was denied of the right to a preliminary examination once been granted.

The Court granted a relief not prayed for by the state in that it recalled it’s order of preliminary examination, where they had only asked the hearing be —

That has been — makes it difficult for us to do anything about it because he is now out of jail.

J. Minos Simon:

Well, I –

And we have got before us the question of the ratio of this coerced plea under the circumstances that you’ve narrated because that isn’t involved in this petition and furthermore it has never been passed upon by any state court.

Byron R. White:

(Inaudible) ask us to declare the regulatory statute constitutional.

J. Minos Simon:

Precisely.

Byron R. White:

Which — for violation of which he pleaded guilty.

J. Minos Simon:

Yes indeed Your Honor, that is my — and I might say this, its rare that you are going to ever have the constitutionality of a vagrancy statute presented to you because I dare say there are very few people who will remain in jail under these circumstances long enough to give you the opportunity to do so.

In fact may I —

Byron R. White:

Well, that’s the problem that your client didn’t need it.

This is a habeas corpus proceeding and the function of a habeas corpus proceeding is to be freed from unlawful custody, and this man is not in custody, that’s the — isn’t that the basic, a basic problem.

J. Minos Simon:

No, not necessarily.

We — the basis for — that is one of the basis, yes Your Honor, of course we applied also for writ of review in which we attacked the constitutionality of the statute and that question is basically still before the Court.

In my Judgment perhaps habeas corpus had been affected by his release, I’m not certain that it has but we also prayed for relief that the conviction itself be erased from the records of all courts.

Potter Stewart:

Well, where did you ever pray for that, until you got here?

J. Minos Simon:

Yes in my —

Potter Stewart:

This is something that — generally you have to begin some where else, you can’t just come to this Court do novo and say erase the conviction.

J. Minos Simon:

I was looking for my original petition to the Court, but returning to the question of his plea, I think that the state supplies this Court with enough evidence to treat the plea as an absolute nullity.

For example, they have attached the affidavit of the Deputy Sheriff Mr. Clarence Tibado in which he outlines what transpired.

I have a brief quotation from it at page three of my supplemental brief Your Honors.

Now, in reciting what took place, this Deputy Sheriff stated that the accused — that the petitioner had called my office for purpose of talking to me but I wasn’t there, of course the accused denies this, he says he called my office after he had entered the plea because they wouldn’t let him use the telephone before, but in any event the deputy says, quotes the language, quotes the statement that the petitioner is supposed to have made it to my secretary, “I don’t know who he talked to but he said, “if you don’t do something about it today, I will go plea guilty because I cannot stand the jail no more.

He hung up the phone and I put him back in jail.”

Now this is absolute proof of the worst type of coercion that any state official may exert against a prisoner and any confession obtained under those circumstance certainly should not be given the dignity and validity of operation to bar this Court from reviewing questions of constitutional law which was probably before it at all times previous to that time.

Well, it’s you before Your Honor in connection —

Under the State Court and they denied your relief on these set of facts and they have actually established and of course you have a constitutional claim of the first order which we could review but those questions aren’t here.

J. Minos Simon:

Your Honor, we don’t ask this Court as such to release him from jail, but we are asking this Court to pass on a validity of the initial charges that was filed against him and now which is a matter of public record and in connection with which he has been forced to enter a plea of guilty.

Tom C. Clark:

(Inaudible)

J. Minos Simon:

That’s quite true.

Tom C. Clark:

In this case, it’s here, they have been (Inaudible)

J. Minos Simon:

There is no question that the charge itself has been dismissed but then again we have this proposition, is this Court going to be hamstrung by the conduct of state official, they have been dismissed because now the state has found it propitious to dismiss these things, after the state —

Tom C. Clark:

That was all done before we took jurisdiction you say, so you had your plea in the other case in May, then you had your dismissal in June of this case and then we granted cert in October.

J. Minos Simon:

In fact Your Honors granted cert in February of 1963.

Tom C. Clark:

Way after what?

J. Minos Simon:

Way after this.

But the issue —

Tom C. Clark:

Well, there wouldn’t be any — wouldn’t come in under case at trial, we were frustrated of any jurisdiction because we had no jurisdiction, we had granted the cert.

J. Minos Simon:

But I can’t convince myself that the act of noting jurisdiction or not is material in relationship to the basic question involved and that is that here state officials are attempting to profit by their absolutely illegal conduct in relationship to the liberty questions involved in the detention of this prisoner.

Tom C. Clark:

Well, I’m with you on that.

J. Minos Simon:

And if the Court —

Tom C. Clark:

I have to look at the jurisdiction whether – so you haven’t had any Louisiana Court pass on those problems or on whether or not the confession was coerced or rather their plea was coerced.

So while your statement is very appealing to what this man suffered and I would like to help you on it, I don’t know how we could under our sit out, under our jurisdiction, it’s included in our —

J. Minos Simon:

Yes sir, if this Court however were to hold that this plea is an absolute nullity then all of the basic questions presented originally are still before the Court.

It’s a question of weather or not –-

Tom C. Clark:

Louisiana hasn’t held that have they, that hasn’t been taken to Louisiana and for our jurisdiction you have to take to the State Court.

J. Minos Simon:

Well then of course we are talking — this question arises only in connection with state’s motion to dismiss because it’s moot and it’s something which was created — is their own creation and it’s not — it was involved in the time the application was filed and I don’t —

Byron R. White:

(Inaudible) Court to declare to release you, to release your client from custody because of the unconstitutionality of the Louisiana statute.

J. Minos Simon:

Yes sir, one of the –-

Byron R. White:

And you were saying that was one of your ground, that you were being – your client was being detained, his detention was illegal under the statute.

You still got that claim.

Now if this man were still in jail, had been sentenced to jail and was still in jail, you would still have a claim that he was being detained by the State of Louisiana under an unconstitutional statue.

J. Minos Simon:

Yes I would.

Byron R. White:

And the fact that he had pleaded guilty and then convicted would have changed the nature of your claim, was it the illegal detention.

J. Minos Simon:

Not to the slightest degree Your Honor.

Byron R. White:

And the only thing that really makes it weak here is I suppose the fact that he isn’t detained, he has been released, he’s been released and also the fact that there maybe some real questions here as to whether you adequately raised your vagueness argument (Inaudible)

William J. Brennan, Jr.:

Are there any consequences that hangover persist after a release of a prisoner, after he has served his sentences or any disabilities, any civil disabilities in Louisiana?

J. Minos Simon:

Not for a misdemeanor, Your Honor.

(Inaudible)

J. Minos Simon:

But he has a criminal record which I think this Court certainly could reach out and clear this for him without him having to go through another procedure to bring it before the Court.

Arthur J. Goldberg:

(Inaudible)

J. Minos Simon:

Yes sir they concede.

Arthur J. Goldberg:

(Inaudible)

J. Minos Simon:

Yes that’s — which —

Arthur J. Goldberg:

(Inaudible)

J. Minos Simon:

Which incidentally Your Honor, a prosecution from misdemeanor maybe based upon an affidavit, you don’t have to have a bill of information, yes.

Arthur J. Goldberg:

(Inaudible)

J. Minos Simon:

Yes sir, and I’m glad Your Honor mentioned that because it gives raise to collateral question, and it points up the fact that the sole reason for the which the state did file this Bill of Information was an attempt to defeat petitioner’s right to preliminary examination and this particular ground was used by the Trail Judge to deny, preliminary examination, may I elaborate further?

Under the preliminary examination statute before the filing of the Bill of Information either the state or the accused has the absolute unconditional right to a preliminary hearing which calls upon the state to show probable cause for holding — detaining a person.

After Bill of Information or indictment has been filed and it is discretionary with the Court, we filed this application before the charters, before the bill was filed.

Then when it came up for hearing the District Attorney asked for a continuous to the next date.

The following day is when he filed the Bill of Information then he took the position and therefore it was discretionary and the Judge adopted this position and then did not deny a preliminary examination, but recalled his previous order, a request — where there had been no request for such action by the Court.

So I just thought I’d point this out.

Then should the Court want me to go into the constitutional question, I’d be very happy to, which we have raised and it is our contention that this statue is unconstitutional for two basic reasons, one is that it is so vague as to run counter to the Due Process Clause of the Fourteenth Amendment and also that it denies Equal Protection.

Now, of course —

(Inaudible)

J. Minos Simon:

Yes Your Honor there is no subsection eight.

Byron R. White:

And where did you present these precise grounds to the Supreme Court of Louisiana?

J. Minos Simon:

We held that the — we presented to the Court I think in paragraph 20 of our application to that Court.

Byron R. White:

What page?

J. Minos Simon:

I made just one — I’m afraid I’m in error there Your Honor.

Tom C. Clark:

Didn’t say that what the statue is vague or not, said the charge is no criminal offense.

Byron R. White:

Sorry the rest of the page I you to put in the lower court.

J. Minos Simon:

Yes sir it is.

Byron R. White:

Rather than what you ask the Supreme Court to pass on in paragraph 26.

J. Minos Simon:

Yes sir.

Rely on what you say in page 27 of your draft brief where you ask the statue be declared —

J. Minos Simon:

Yes that’s correct.

But my trouble — let me put this question to you, let’s assume that this was properly raised or was raised in what was before the Supreme Court, at that stage of the matter the case had not been tried, it was simply attacking the indictment.

J. Minos Simon:

Yes sir.

And the denial results in the case going back for a trial at that stage.

J. Minos Simon:

Yes sir.

How is that a final order that we can review?

J. Minos Simon:

Your Honor for the reason that in our procedure in Louisiana, a question which is patent on the face of the record maybe raised at any time.

Well I’m talking about our jurisdiction because theoretically this case is after denial could have gone back to the Trial Court and if your client had not pleaded guilty it could have been tried, he might have been acquitted.

J. Minos Simon:

That’s quite true.

As a matter then there would have been nothing for this Court obviously that you would bring up.

My question is how is this a final order at that stage?

J. Minos Simon:

It’ a final order insofar as it finally disposes of petitioner’s right to habeas corpus.

It finally disposes of petitioner’s right to preliminary examination and it finally disposes of his right not to be prosecuted on an absolutely illegal statue.

And those are — all which of in my judgment —

You design it from the standpoint of your law, but we have to — our jurisdiction is submitted by our federal statues to bind orders.

J. Minos Simon:

Then I’m afraid I can’t answer the question otherwise Your Honor.

But it is final insofar as our judgment of the case is concerned because it didn’t appraise of these constitutional rights.

Arthur J. Goldberg:

You raised your constitutional (Inaudible)

J. Minos Simon:

Yes sir.

Potter Stewart:

But that was in the Trial Court.

J. Minos Simon:

We’ve all — in our prayers as Mr. Justice Harlan pointed out we expressly ask for that particular remedy, but in my judgment Your Honor the statute is void for vagueness and I started to point out while vagrancy prosecutions in themselves are not serious offenses, they become a major crime when the Court considers that the use of this statute is very widespread throughout the nation and it constitutes a very serious abuse in our judgment on the liberty of rights of citizens.

William J. Brennan, Jr.:

This doesn’t seem to me to be the vagrancy statute in the sense I ordinarily understand the vagrancy statute with all the specificity.

They could have — without using the word vagrancy I gather this statute could be read as making an offense by any person found in or in any structure, movable vessel or private (Inaudible) of being able to account for his lawful presence therein, that doesn’t sound to me ordinarily like a vagrancy.

J. Minos Simon:

That’s a species of vagrancy statute Your Honor.

Potter Stewart:

Sounds criminal trespass more, doesn’t it?

J. Minos Simon:

It sounds like that, but you don’t — the difference is, and that’s where you equality clause comes in, the difference is there is nothing intrinsically criminal in what you are doing and they charge you and prosecute you and punish you for the status you occupy.

There is nothing inherently criminal about just being there.

Potter Stewart:

Well there isn’t, but the statute says that you have to be unlawfully there, and that’s criminal.

So if I go home tonight and find somebody in my house who is a visitor, obviously he is not guilty of anything, but if I find somebody there who has broken in, he is unlawfully there.

J. Minos Simon:

But the charge usually is for what he has been guilty, the conduct for which he has been guilty.

This charge does not relate to conduct.

If he is there, then they coupled this with not being able to account for his lawful presence therein.

This is what is offensive which is not an act of conduct as such, but rather a punishment for the status which you occupy, and it is vague if Your Honors please for the reason that the language itself, the terms employed are too general, there are no standards by which you can determine the meaning without being able to account.

Arthur J. Goldberg:

(Inaudible)

J. Minos Simon:

Yes.

Arthur J. Goldberg:

(Inaudible)

J. Minos Simon:

He could be.

Potter Stewart:

But how?

J. Minos Simon:

Well who determines what is the proper accounting, that’s the point.

There are no standards.

Potter Stewart:

Whether or not it is lawful and what’s so unlawful about walking down the street?

J. Minos Simon:

But the statue doesn’t say that you have to show —

Potter Stewart:

Lawful, that’s the unlawful presence.

J. Minos Simon:

Well for example if the judge doesn’t feel that you have given the satisfactory accounting, then of course you would be guilty of it.

It calls upon you to affirmatively take a position and explain your conduct, which embraces another question which I raise in this connection, that is that it calls upon an accused to affirmatively state why is there and if he does not do that then of course he has failed to account for his lawful presence, thus he is deprived of invoking the Fifth Amendment should he decide to do so.

And of course this is a right which is common to all persons charged with crime in the state of Louisiana and to that extent and of course he would be deprived of a constitutional right and he would be deprived of equal protection.

Arthur J. Goldberg:

(Inaudible)

J. Minos Simon:

That’s correct.

You could extend this further.

Suppose that Hannah is on property of another and they stop him and he says, well the reason I’m here and I’m looking for my homes, now is that illegal?

You’re not charged of trespassing or a beggar might be vague.

J. Minos Simon:

He might say he wants to eat something or an artist might be vague, he may want to capture the scenery on canvass, suppose he gives that accounting to whoever arrests him, is that a satisfactory accounting?

There is no way by which we make that determination.

Now time then becomes important also.

Should the same reason, should the same accounting be given, say at 5 o’clock in the afternoon, is that reasonable?

If it’s given at 12 o’clock at night or 2 o’clock in the morning, does it become unlawful and why does it become unlawful?

There are no standards by which a judgment as those things may be made.

There are no standards by which the courts may be guided in this interpretation of this particular statute and so the citizen is left in the precarious position of having to speculate as to what the statute does mean and what is does not mean and he must speculate it at the peril of his liberty.

And I think repeatedly this Court has held that such a statute when so vague is absolutely unconstitutional is depriving party of due process.

Now also I might state that the classification itself, the theory behind the vagrancy statute Your Honor is that part is found in this type of situation or not doing anything intrinsically criminal but because of a status they occupy or the mode of existence which they pursue, they create a ferment that the breach undefined crimes and therefore they should be punished.

Well we submit that the classification itself is unreasonable, it’s discrimination that is not reasonably related to the purpose of the statue because there is evidence to demonstrate that the theory correct and therefore yes.