Bartkus v. Illinois – Oral Reargument – October 22, 1958

Media for Bartkus v. Illinois

Audio Transcription for Oral Reargument – October 21, 1958 in Bartkus v. Illinois

Audio Transcription for Oral Reargument – October 22, 1958 in Bartkus v. Illinois

Earl Warren:

Number 1, Alfonse Bartkus, petitioner, versus People of the State of Illinois.

Mr. Wines, you may continue your argument.

William C. Wines:

May it please the Court.

Yesterday afternoon, I argued that multiple prosecutions by the Federal Government and a State where the same acts offend the laws of both sovereigns have not been thought so far to offend the concept of ordered liberty as to result in the denial of due process of law and I have nothing to add at the moment to the argument that I made yesterday afternoon.

I should like to continue briefly to discuss the question whether there was such activity on the part of federal officers in the matter of the state prosecution of the petitioner as to result in denial of due process of law.

Felix Frankfurter:

It was the – May I ask whether your remark did nothing more to say even if the proposition is so obvious or in your view, so controlled by authority that you think it’s — it doesn’t call for further argument, which is it?

William C. Wines:

Neither Your Honor.

Felix Frankfurter:

Pardon me?

William C. Wines:

Neither Your Honor, I had said what I had to say upon the subject unless the Court has —

Felix Frankfurter:

Well, I’m not asking you to say —

William C. Wines:

–question.

Felix Frankfurter:

— more than you want to say, I just want to know whether your — your test eternity on the subject is due to the fact that it’s controlled by authority or self-evidence proposition, which?

William C. Wines:

There is no case precisely like this one in the annals of this Court.

There is no case where a man has been acquitted in a federal court and subsequently retried for the same conduct in a state court.

So I can’t say that it’s controlled by any precise authority, but I do say that the authorities that I discussed yesterday and the consensus of understanding by Courts I believe throughout the country generally that each sovereign may prosecute without offending due process seems to be an accepted principle of American constitutional jurisprudence.

Where do you find that?

William C. Wines:

I find it indicated Your Honor in the cases that I sited yesterday.

I find it indicated in the Lanza case, in the Moore case and in Herbert against Louisiana which is like the Lanza case to the extent that the defendants were indicted for violation of the Louisiana statute, prohibiting the sale of intoxicating liquors and were then indicted in the federal court for the same alleged offense.

And although there had been no trial in the state court, this Court had occasion to say where such manufacturer that is of intoxicating liquors is thus doubly denounced.

One who engages therein commits two distinct defenses, one against the United States and one against the State and maybe he’s subjected to prosecution and punishment in the federal courts where one in the state courts where the other without any infraction of the constitutional rule against double jeopardy, if being limited to repeated prosecutions for the same offense.

Now, it’s contended that because government officers were very largely instrumental in instigating this prosecution in the state courts that even if multiple prosecutions by different sovereigns does not perceive denying due process that agency of federal officers amounted to a double prosecution by federal authorities once in the federal court and once in the Courts of Illinois.

Would you mind if I interrupt you again before you do that other (Inaudible)?

William C. Wines:

Yes sir — you please Your Honor.

Do you want to comment at all on the arguments made by your opponents (Inaudible) bearing this old English authority (Inaudible)?

William C. Wines:

Only to say Your Honor, that — there do — that did seem to be a — a general principle and does seem to be a general principle against repeated prosecutions for the same crime and there are I do think old English authorities do tend to support his contention, but those authorities found utterance at a time when there was no doctrine of dual sovereignty.

Britain didn’t have the doctrine of dual sovereignty and we say that when the United States was born, as a result of our dual sovereignty, the citizen or the denizen of the United States became amenable to both federal and state prosecutions when his activity offended the laws of both sovereigns.

We say that implicit in the conception of dual sovereignty.

Now, Your Honors, if I am correct in arguing that due process is not offended by a state’s prosecution of one who has been tried in the federal courts.

I submit that it should follow that if the State’s Attorney, as we call our state prosecuting official in Illinois, can indict and if the state courts can try the petitioner, the prosecution — Prosecuting Attorney has the right to avail himself of the testimony of any witnesses who’s testimony is competent under the ordinary rules of evidence, that is they have knowledge of the facts, and may use any evidence that was lawfully obtained even though it was obtained by federal officials.

And we do not think that merely because federal officials bring to the attention of the state prosecuting authority, the Commission of a state act and furnish and provide him of — with evidence of the defendant’s guilt that that constitutes a federal prosecution.

William C. Wines:

Nor do we think that it’s like the case where federal authorities have unlawfully and unconstitutionally seized evidence and not being able to use that evidence in a federal court, try to make it available to state prosecuting officials.

We don’t think that a prosecution, not only in the name, we pay no attentions to name, conducted by the authority of state prosecuting officials, the State Prosecuting Attorney before state judges and before a state jury and in a state court constitutes a federal prosecution even if the evidence was obtained by federal officials and we submit that there was no denial of due process in those circumstances.

Now, petitioner did not argue orally, but he does urge in his brief that it was error not to permit petitioner to show that he had been acquitted in the federal court if he could be tried at all.

We say that — that raises at most a question of the state’s law of evidence.

Ordinarily, one jury isn’t told but another jury has done with a case involving the same parties and the same factual issues and we see no denial of due process in that ruling on law of evidence.

To sum up and conclude, we think that every utterance of this Court supports the proposition that due process is not denied by prosecution by both sovereigns for the same act offends the laws of both sovereigns and that if that the State may prosecute at all, it may use any lawfully acquired evidence to support its prosecution.

I will remind Your Honors again that in Palko against Connecticut, this Court held that due process does not per se inhibit second trial even by the same State if that state’s laws permit such a trial and if — if it doesn’t appear that there is simply an intention to harass the defendant and prosecuting him time after time for the same offense.

We respectfully submit that the judgment appealed from should be affirmed.

Earl Warren:

Mr. Fisher, if you like, you may take about three minutes to —

Walter T. Fisher:

I would (Inaudible) —

Earl Warren:

— to sum up a few —

Walter T. Fisher:

— Mr. Chief Justice.

And especially, I’d like to speak about these — about these authorities that were mentioned.

These authorities that common law where it was decided and this is very much applicable to the line of questioning to which Justice Frankfurter was addressing himself yesterday.

It was found and settled in common law involved in more than one case, and in the Hutchinson case, which we cite in our brief particularly that murder — the man had been convicted of murder in Portugal, he could not be tried over — he’d been acquitted — acquitted of murder in Portugal, he could not be tried over again in England.

Thus it — thus it was established that — that the common law — due process of law at common law meant that the policy of Portugal was not sufficiently separate in a crime like murder where the gist and gravamen of the offense is the same under Portuguese law as under English law is — is therefore settled that due process did — did prevent the man being tried over again in England for that same offense.

So that —

Where the murder was committed?

Walter T. Fisher:

Well, I think the murder was committed on the high seas.

There would have to be of course concurrent jurisdiction Mr. Justice.

We only get this difficulty at all in these narrow classic cases where there is concurrent jurisdiction, a case — kind of a case where I suppose if somebody shipped poison candy from one jurisdiction to the other, I suppose the murder would be committed in both cases.

I think it’s on the high seas as I recall the case that it will show — it will show there.

So, that Mr. Wines have just argued and speaking about the creation of dual jurisdiction, he says to argue that the State and the nation are more alien to each other than foreign countries are to each other at common law.

Now, as to Palko against Connecticut, Palko against Connecticut expressly left open this question, in the very words of Justice Cardozo and in opinion of the Court, this particular case we’re now arguing is expressly left open in that case.

Now, these other cases —

Felix Frankfurter:

Before you leave Palko, let me ask you this?

Do you think it’s — its less power to allow the State, the same State having secured the conviction, resulting in life sentences to be allowed to appeal and allege there only excluding by a Court which leads to a new trial and then sends a man to death, do you think that’s less harsh than to allow the United States to prosecute and equip and then Connecticut —

Walter T. Fisher:

I — I certainly do you Honor —

Felix Frankfurter:

You do?

Walter T. Fisher:

— and — and some of the Justices have so held — some of the cases so held.

Walter T. Fisher:

They’ve said that there is this — these parties are entitled and the State is entitled to one trial free from error.

Felix Frankfurter:

I know, but that’s the theory.

All I’m talking about the human fact.

Here is the fellow who’s been tried.

The judges rule according to his conscience.

He’s convicted and they given a life sentence and then the State can start all over again and take his life.

Walter T. Fisher:

Well that isn’t —

Felix Frankfurter:

Don’t talk about theory —

Walter T. Fisher:

— a — a separate case.

Felix Frankfurter:

–’m talking about — what you’re talking about harshly.

Walter T. Fisher:

Well, that’s my opinion Mr. Justice and I have given it but the just — justices of this Court are different on that very point.

So that one cannot express himself with a —

Felix Frankfurter:

Well, I’m – where did they differ?

In Palko, there was one dissent, but they did not —

Walter T. Fisher:

In — in other cases, I think that in Cross against North Carolina seems to me was a case whether there’d been discussion to that point that it’s not so bad, it’s an entirely different fresh case.

Felix Frankfurter:

Well, I know but that’s a theory and —

Walter T. Fisher:

Yes.

Felix Frankfurter:

— to me it still makes a difference whether the Court decides or whether there is a dissenting opinion that I’m —

Walter T. Fisher:

Well —

Felix Frankfurter:

— I’m probably educated and —

Walter T. Fisher:

I’m —

Felix Frankfurter:

— I still think that —

Walter T. Fisher:

— I’m sure that some of the justices of this Court have indicated that they believed that — that the successive prosecution should not be allowed in the case that you’ve mentioned and —

Felix Frankfurter:

I don’t know any case that was more thoroughly considered of few cases than Palko.

Walter T. Fisher:

Yes and in Palko —

Felix Frankfurter:

And you’re not asking us to overrule it?

I can understand if you’re asked us to overrule it.

Walter T. Fisher:

No, in Palko, they expressly left it open and they gave the analogy that I mentioned yesterday —

Felix Frankfurter:

They leave it open because it would a good judge always leave no more question that isn’t before a Court.

Walter T. Fisher:

Well, if the line must be drawn somewhere, we don’t have to draw it for this case.

Walter T. Fisher:

If it your — if Your Honor is arguing that it’s equally unjust, why perhaps that view will prevail someday on this Court.

I’d like to say one more word in answer to the Chief Justice’s question about the — these authorities.

And that is the Fox against Ohio and Moore against Illinois, and Herbert against Louisiana that Mr. Wine’s mentioned are — are not double jeopardy cases.

A man has to be tried twice to get double jeopardy.

And all these cases were cite — and that’s how this confusion arose originally.

They all recite the definite doctrine that Mr. Wine has pronounced that in the American system of concurrent jurisdiction, both the state and the nation can prosecute until the field has been taken over by Congress.

They both can prosecute.

They both can try the man.

This said over and over again and those expressions have led some people to believe the additional fact — this does not follow at all that after one jurisdiction has completed it’s proceeding, has acquitted the man that then the other one can start in and then try him over again.

That is not necessary, and it is not been held ever in any case except in the conviction case of Lanza by this Court.

That’s the only case, that was the conviction case and that case is separate as I argued yesterday.

Well, thank you very much.

Earl Warren:

Mr. Fisher, before you sit down, I — I would just like to say that the Court thanks you for the devotion you have given to this — this case.

You’ve been here not only once but you’ve been here twice under assignment of — of the Court and I assure you that we always have more pride in our bar and more — more confidence in our system when lawyers are willing to undertake those assignments.

So, we thank you and Mr. Wines, I — I want to say that we — we appreciate very much your usual frankness and your fairness in — in argument of these — of these cases and for the earnest way in which you represent the interest of your State.

William C. Wines:

Thank you Chief Justice.