Barber v. Page

PETITIONER: Barber
RESPONDENT: Page
LOCATION: New Kent County School Board

DOCKET NO.: 703
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 390 US 719 (1968)
ARGUED: Mar 28, 1968
DECIDED: Apr 23, 1968

Facts of the case

Question

Media for Barber v. Page

Audio Transcription for Oral Argument - March 28, 1968 in Barber v. Page

Earl Warren:

Number 703, Jack Allen Barber, petitioner versus Ray H. Page, Warden.

Mr. Rothgerber.

Ira G. Rothgerber, Jr.:

Mr. Chief Justice and may it please the Court.

This writ reviews the judgment of the Court of Appeals for the Tenth Circuit, affirming denial of habeas corpus to the petitioner who is a prisoner in the Oklahoma Penitentiary.

It presents the Court a difference in attitudes if not an actual conflict between the circuits.

The petitioner and three others were charged by information with robbery with firearms.

The date of the information is August 25, 1961, which was three days following a preliminary hearing to which I will presently refer.

As a result of the information a good many months later, the petitioner was tried separately from his co-defendants and a transcript of the testimony of a co-defendant, Woods, given at a joint preliminary hearing which was held August 22, 1961, three days before the information was read to the jury over the objection of Woods’ -- of petitioner's counsel.

Oklahoma has conceded in its brief that prior to the preliminary hearing, there was “apparently” an agreement between the prosecution and Woods, the co-defendant, and as a result of that apparent agreement, Woods was called by the prosecution at the preliminary hearing and gave testimony inculpating the petitioner.

At the preliminary hearing, both petitioner and Woods were represented by one retained attorney, a gentleman named Mr. Parks.

Woods was called to the stand.

He was admonished by his attorney that he need not to give evidence.

There was a recess in the proceedings.

After the recess, Mr. Woods came back, Mr. Parks came back, withdrew as counsel for Woods and there upon, Woods gave his testimony which was significant in the conviction of petitioner.

At the preliminary hearing, Mr. Parks did not cross-examine petitioner but it is only fair to say that petitioner was cross-examined by an attorney for another of those at that time jointly accused.

I will now relate a fact which is set forth in the Appendix to the petitioner's opening brief and which was not before the trial court or the Court of Appeals, but a fact which we ask this Court to notice in its supervisory capacity over United States courts.

On September 7, 1961, September 14, 1961, October 5, 1961 and October 6, 1961, Mr. Parks whom you will remember had withdrawn his appearance on behalf of Woods in the State Court preliminary hearing appeared as Mr. Woods' counsel in proceedings in the United States District Court in the northern district of Oklahoma, and on the last date mentioned, October 6, 1961, a sentence was imposed on Mr. Woods.

He was there upon taken to the penitentiary in Texarkana, Texas.

And on March 5, 1962 several months later, petitioner's trial commenced in the District Court in Tulsa, Oklahoma, Mr. Parks was then representing the petitioner.

The state offered a transcript of Woods' testimony at the preliminary hearing.

Mr. Parks objected.

Mr. Parks in support of this objection made an offer of proof in which he stated that in fact, Mr. Woods was confined in the state penitentiary -- in federal penitentiary at Texarkana, Texas which is 200 and 300 miles from Tulsa.

The objection was overruled.

The transcript was read to the jury which brought in a verdict of guilty.

The petitioner appealed to the Oklahoma Court of Criminal Appeals which affirmed.

He then sought habeas corpus and after an intermediate step in which the Court of Appeals was not satisfied, he had exhausted his state remedies, it was determined that he had.

The Court of Appeals however has stated that there is no denial of the right of confrontation in this case.

This is the principal issue here, was the petitioner denied his right of confrontation.

Oklahoma asserts and this poses another important issue that by his inaction in failing to examine Woods at the preliminary hearing, Mr. Parks on behalf of petitioner effectively waived the right of confrontation.

Finally, we have what is probably a peripheral issue that naturally flows from this sequence of events and that is whether or not Mr. Parks effectively represented the petitioner in his trial.