Blackledge v. Perry – Oral Argument – February 19, 1974

Media for Blackledge v. Perry

Audio Transcription for Opinion Announcement – May 20, 1974 in Blackledge v. Perry

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Warren E. Burger:

We will hear arguments next in 72-1660, Blackledge against Perry.

Mr. League, you may proceed.

Richard N. League:

Mr. Chief Justice and may it please the Court.

I am Dick League from Raleigh, North Carolina to argue this case for the petitioners.

Before I begin an argument, I?d like to apologize having each of you for the shabby condition, I understand the briefs and records that came up before you.

I hope you accept my apologies in that regard and that it won?t let you change your view of the case too bad.

This case presents two issues to the Court for decision.

First, whether or not double jeopardy is a matter that would be waived by a voluntary and intelligent plea of guilty and, secondly, if the record in this case is good enough to show that such plea was made here once voluntarily and intelligently.

The facts on which this arises are as briefly as follows.

Jimmy Seth Perry was tried in the lower level of our two-tier system in North Carolina, the District Court, on a warrant charging him with misdemeanor assault.

After conviction there and sentenced to a consecutive six months sentence, he appealed to the Superior Court division, the higher division of the two-tier system in which there is a trial by jury.

He appealed for trial de novo as a matter of right.

Prior to the case coming on to be called later, the Solicitor obtained an indictment charging him with a higher grade of the offense, felony assault.

And to this, he pled and received a sentence in the Superior Court of some five to seven years, however, this sentence was consecutive to the sentence he had.

At the time he made the plea and, accordingly, the actual extension of time beyond the six months consecutive sentence he received below something like about three-and-a half months at that time.

Subsequently, in this proceeding in the Eastern District, he obtained habeas corpus relief on the issue of pretrial credit —

William H. Rehnquist:

Mr. League, could you speak up a little bit.

Richard N. League:

I?m sorry, Your Honor.

William H. Rehnquist:

I?m having a little bit of difficulty hearing you.

Richard N. League:

I?m definitely sorry.

Right.

I tend to say and point in the facts as I had just mentioned, Your Honor, was that the five to seven-year sentence concurrent with the sentence he was then serving operated to giving him about a three-and-a half month increase over the six-month consecutive sentence he?d received in District Court, until the time of this action when he received pretrial credit on the first penalty which created a greater disparity between the two.

In my position, briefly, on the first issue is that double jeopardy is a matter which would be waived as an independent basis of collateral attack by virtue of his guilty plea in this case.

And he can only use that in a habeas corpus action as evidence of some other basis for relief such as, in effect, of the assistance of counsel.

Mr. Keenan has suggested to you that you ought to adopt a system-related, guilt-related distinction with regard to determining whether or not such waiver has been made in any given case.

But I argue that you should not accept that, and it?s not always clear just what is guilt and what is system-related.

In fact, part of the rationale, as I understand it, of the double jeopardy clause is to prevent punishment, the conviction of the innocent through repeated prosecutions.

It?s according that, I think, this right would definitely partake both being a system-related right and a right which is guilt-related as well.

Thurgood Marshall:

Which stage do you say innocence is involved in double jeopardy?

Richard N. League:

To prevent one of the basis for the prohibition against that, Your Honor, is to prevent the likelihood of the conviction of the innocent through repeated prosecutions.

Richard N. League:

So, in that sense, I would view it as possibly guilt.

Thurgood Marshall:

Do you mind giving a citation for that?

Richard N. League:

Sir?

Thurgood Marshall:

A citation for that?

Richard N. League:

I believe it is in Benton v. Maryland.

I believe it?s in Green.

Thurgood Marshall:

That innocence is a part of it?

Richard N. League:

Just what I said, Your Honor, that one of the rational — one of the parts of the rationale against double jeopardy is what I have said.

Thurgood Marshall:

Double jeopardy is against being twice tried.

Richard N. League:

Yes, sir, but I?m going beyond what it says.

Thurgood Marshall:

What does the innocence got to do —

Richard N. League:

The statute —

Thurgood Marshall:

You want to add that to it?

Richard N. League:

Sir?

Thurgood Marshall:

You want to add that to it?

Richard N. League:

No, sir.

I believe it has been stated in those decisions that part of the rationale underlying the prohibition on double jeopardy is a possibility of conviction of the innocent through repeated prosecutions.

Now, that?s not the only part prior to that, I believe, in the quotation.

It?s something like relief of anxiety, embarrassment, and ordeal.

The state with all its resources should not be permitted multiple attempts.

All these things are mentioned there and I do recall that they are in both the Benton and the Green decisions.

Perhaps I?m wrong on the latter, but I believe I?m right on the former.

Warren E. Burger:

Mr. League.

Richard N. League:

Yes, sir?

Warren E. Burger:

Keep your voice up as much as possible.

Richard N. League:

I?m sorry, Your Honor.

Warren E. Burger:

We?re all having a little difficulty.

Richard N. League:

I am terribly sorry.

In addition, as a second reason, I would urge upon you for rejecting the system and guilt-related distinction as the basis for waiver is that as you look at the things that are normally not waived by a guilty plea such things as mental incompetence, coercion, ineffective assistance, failure to plea, you see that while they are, in some sense, system-related they also have a common factor which isn?t present in this case.

And I think that common factor is that in none of those cases is a plea, a reliable indicator that there may be a valid basis for it.

Richard N. League:

Certainly in Perry?s case, if we are just to throw aside his accusations or his allegations, pardon me —

Is the state?s position that there was double jeopardy but that it was waived or why was it even double jeopardy in the first place?

Richard N. League:

Your Honor, I don?t agree that it was but the thrust of my argument would be, you wouldn?t have to reach that because it would be waived by the plea.

I know.

It seems to me like that?s a threshold sort of consideration.

You don?t need to get to waiver if there were any double jeopardy in the first place.

Richard N. League:

Well, I understand you avoid the constitutional question if possible so you go to the waiver.

It waives the constitutional question.

Richard N. League:

Well, I guess so, Your Honor.

At initial outlook, it looked less of a constitutional question than double jeopardy.

But why would it be a double jeopardy here?

Richard N. League:

I don?t think it would be, Your Honor.

Byron R. White:

He never was — he was never tried for the more serious offense but once, was he, and even then he pleaded guilty to it?

Richard N. League:

That?s true.

I don?t believe in it.

Well then what was the — what?s the double jeopardy involved now

Richard N. League:

Double jeopardy, according to Judge Larkins, is the raising of the offense.

And between the initial trial in the lower court and the subsequent trial —

We have a different offense with different elements.

Richard N. League:

That?s why he claim — Judge Larkins held it was double jeopardy.

I thought double jeopardy was — it wasn?t double jeopardy if it?s a different crime that he?s tried for a second time.

Richard N. League:

I don?t know that, Your Honor.

I wouldn?t have thought it was double jeopardy in this case.

Though, just by virtue of the states bringing forth the higher degree of the crime for which they could have initially tried him, at least in terms of a probable cause here, at the first level.

Would you say there was double jeopardy?

Richard N. League:

I say there was not.

Not?

Well, let?s see if I got this correctly.

He was convicted initially on a misdemeanor assault with a deadly weapon, and he appealed that.

And, had he been successful on the appeal, he would have had a trial de novo on the misdemeanor charge.

Is that right?

Richard N. League:

No, sir.

He automatically got a trial de novo.

Now, the normal expectation would have been that it would?ve been on the misdemeanor charge.

But, in the interim, the Solicitor obtained an indictment charging the higher offense.

Well, in other words, when — he appealed the misdemeanor charge, didn?t he?

Richard N. League:

Yes, sir.

And was he tried de novo on the misdemeanor charge?

Richard N. League:

No, sir.

No, because intervening the trial de novo was the indictment on the felony charge?

Richard N. League:

Yes, sir.

And what?s the difference between the elements of the felony offense and the elements of the misdemeanor offense?

Richard N. League:

Two additional in this case, Your Honor.

What were they?

Richard N. League:

One was inflicting serious injuries and the other intent to kill.

To my recollection, they weren?t.

I know, but it was the same event, wasn?t it?

Richard N. League:

The same event, the same person, the same acts.

Except that the — on the condition of the victim was the same in respect to the trial on the misdemeanor charge as it was in respect to the trial on the felony charge, wasn?t it?

Richard N. League:

Yes, sir.

So, it?s the only thing that happened.

Well, then, why isn?t it double jeopardy?

Richard N. League:

Your Honor, I don?t think it?s double jeopardy because the thing is no real risk of jeopardy in this lower system unless the man accepts that he can —

He didn?t need any different evidence on the felony charge and you had to — state had to introduce it on the misdemeanor charge.

Well, you had to have some help but since you do not–

Richard N. League:

Yes.

Why?

I thought you said the condition of the victim was exactly the same.

Richard N. League:

Well, Your Honor, whether or not it?s a practical —

Its vindictive then to say but the evidence is required to prove.

Well, what different evidence did you have on the felony trial that you didn?t introduce in the misdemeanor charge?

Richard N. League:

Your Honor, there was no felony trial but we don?t have the record, we don?t have the record of the —

I see.

Richard N. League:

District Court.

William H. Rehnquist:

Did he ever go to trial on the misdemeanor charge?

Richard N. League:

I understand he did from his allegations, Your Honor.

The District Court records were gone when we filed our return so we?re —

Well, I?m reading from your brief.

Richard N. League:

In the —

I?m reading from your brief, and it?s your brief that says he was initially tried and convicted in August 1969 on the misdemeanor assault.

He appealed it.

And then, you say Perry appealed this assault conviction in the Superior Court and received a trial de novo.

Richard N. League:

Yes, sir.

We pled guilty at the trial de novo, sir.

Thurgood Marshall:

And how do you —

Well when you got a — however, during interim, between appeal and trial de novo, the Solicitor obtained an indictment?

Richard N. League:

Yes, sir.

Charging him with a felony?

Richard N. League:

That much I know, yes.

And he pleaded guilty to that.

Richard N. League:

Right.

Well then I would misread what you say — and he received a trial de novo?

He did not, in fact, receive one.

Is that it?

Richard N. League:

He received a trial de novo at which he pled guilty.

No evidence was put on this time.

That was the trial de novo on the misdemeanor charge.

That was —

Richard N. League:

That was on the event.

That was on the trial of the summary charge.

Richard N. League:

That was on the event, Your Honor.

Warren E. Burger:

But have they gone to trial on the higher charge, the second or de novo trial, they would have had to prove intent which was not required in the first case.

Is that true?

Richard N. League:

Intent and serious bodily injury.

Warren E. Burger:

And serious bodily injuries, those two elements.

Richard N. League:

Right.

The proof of what — it may have been the same in either but it would have to also meet the requirements to sustain those two elements.

Yes, sir.

Thurgood Marshall:

Had he not appealed, could he have been indicted?

Richard N. League:

No, sir.

Thurgood Marshall:

So because he appealed, he was indicted.

Richard N. League:

I would say so.

Yes, sir.

Thurgood Marshall:

(Inaudible).

Richard N. League:

But I would not attach perhaps the same significance to it as Your Honor.

This well could have been an event where they tried to get it out of the way down below in the —

What would he have been indicted for — if he hadn?t appealed his misdemeanor conviction?

Richard N. League:

I think, Your Honor, under state law at least it would?ve become final within 10 days.

It?s only voidable at the instance of the defendant.

(Inaudible)

Richard N. League:

Yes, sir.

Why could he have not been indicted for it though?

Richard N. League:

Well, I think because of the greater offense and lesser offense aspect of that.

If they have the state law, they won?t?

Richard N. League:

In the state law, at least, Your Honor, if you tried for the same act and it would — the elements of the offense of the lesser one would also be elements of the offense of the greater one —

What?s then?

Richard N. League:

Then you couldn?t retry.

But you have to prove something in addition to prove the point.

Richard N. League:

Even though that were the case.

That?s — is that state double jeopardy law or is it statutory law or what?

Richard N. League:

It would be state law.

It well, may well be federal also, Your Honor.

But I know it is at least, state.

Is there any decision of your Supreme Court that supports that proposition?

Richard N. League:

What I?ve just said about the lesser included offense?

That it would say that if this misdemeanor judgment had not been appealed, this individual could not have been indicted for the felony?

Richard N. League:

Well, there?s an old exception.

The state cases State v. Burke which Mr. Keenan brings out.

In your brief?

Richard N. League:

Sir?

In one of your briefs?

Richard N. League:

It?s in his brief.

Yes, sir.

As an early ?50s case, it relies I don?t know whether directly or the interior sites within rely on one of the Philippine Island cases decided by this case back in the early 1900s.

Now, whether or not that?s still a viable exception, I do not know, Your Honor.

It will be double jeopardy, would it not?

If a person were tried and convicted for man slaughter, he couldn?t then be indicted for first-degree murder in that court or any other court for precisely the same killing, could he, without violating the Double Jeopardy Clause whether in your state or in other states?

Richard N. League:

And that?s what I would I say.

Yes, sir.

Is that correct?

Richard N. League:

That?s what I understand.

Yes, sir.

That would be my understanding, I think.

Thurgood Marshall:

You know, I think if you winded up you?d be able to see on your side over there you can wind it and you will have — then, we?ll hear you better.

Richard N. League:

I?m sorry for that, Your Honor.

My voice has no carriage.

I knew that.

Returning to why this matter should or should not be waived, I would just say that in reference to these things that we now are not waived there?s no dispute about whether or not they?re not waived.

They seem to have at least one common factor which is absent from this case, and that is that the plea is not a reliable indicator that a valid basis for it exists.

Here, if we cutout Perry?s allegations that he pled to receive a totally concurrent sentences with his expectation, we see that he traded an argument over double jeopardy for a sentence of about three-and-a half months.

Richard N. League:

So I think, under that basis, it could well be assumed that there was a basis for the plea —

Warren E. Burger:

Does that bring you up against the Pearce case, about increasing sentences in any way?

Richard N. League:

No, sir.

I don?t think Pearce is applicable to this case by virtue of really what was said in the Colten decision that the possibility for vindictive punishment does not occur sufficiently within the two-tier system to warrant the imposition of the prophylactic rule in Pearce.

And in any given case, Your Honor, you could view the case but that?s not the incidence of it to warrant the placing of the Pearce restrictions on this type of situation.

Warren E. Burger:

I suppose some of this comes down to precisely what the word ?offense? means in the Fifth Amendment Double Jeopardy Clause.

If you treat offense as being synonymous with criminal acts, you perhaps get one result.

If you treat offense as describing and meaning the offense described in the indictment or charge, then perhaps you get another result.

Isn?t that true?

Richard N. League:

Yes, sir, you would.

Warren E. Burger:

Which do you think it is?

Richard N. League:

In the former.

Warren E. Burger:

The same Act?

Richard N. League:

Yes, sir.

Warren E. Burger:

Well then, how could you be — then why haven?t you got a double jeopardy problem?

Richard N. League:

I think you don?t get it, Your Honor, because there?s no real risk of punishment inherent in the double jeopardy system.

You have to have that risk, and you don?t have it in the lower District Court so long as the plea is voidable by the defendant and — pardon me, the verdict is voidable by the defendant.

That would be my impression of the case.

It was also suggested, I believe, that a basis would be, from Judge Larkins? standpoint, was that the reason was there — pardon me, the right was fundamental.

I don?t think much need to be said about that.

They?re all that way and I believe this Court rejected that idea recently in the school taxation cases.

It?s true that if sustained this plea could bar the prosecution entirely, but that would be the case, I think, with any given constitutional right in a particular case.

And lastly, the retroactive decision idea of Mr. Keenan, I had thought, would not aid him if we won on his major contention it wouldn?t be any necessity to come to this and, if he did not, it wouldn?t help.

Absent any questions, I?ll rest there and thank you very much for your attention.

Warren E. Burger:

Very well.

Mr. Keenan.

James E. Keenan:

Mr. Chief Justice and may it please the Court.

I appear on behalf of respondent, Jimmy Seth Perry.

With the Court?s permission, I would like to run briefly back over the facts because though they are a little bizarre, I nevertheless think that what happened to this case was rather clear.

On August 1, 1969, Jimmy Perry was serving a five to seven-year sentence in the North Carolina Department of Corrections for uttering a forged instrument.

James E. Keenan:

On that day, a fellow inmate, by the name of Eugene Sawyer received a 14-inch cut in his back.

An investigation sued by the authorities of the Autumn Fire Unit in Northampton County, North Carolina.

And on the 18th day of August 1969, a warrant was sworn out by a prison guard charging Jimmy Seth Perry with the misdemeanor of assault with a deadly weapon.

On August 20, 1969, Mr. Perry was brought to court in the Northampton County District Court which is the proper court in North Carolina for the trial of misdemeanors.

All misdemeanors must be tried in the first instance at the District Court level.

On that date, the Solicitor or the District Attorney who was trying the case, after conferring with the officer, felt that the conduct necessitated a charge of a felony.

Therefore, he made a motion in open court to amend the warrant to charge the felony of assault with a deadly weapon with intent to kill resulting to serious bodily injury.

Under North Carolina law, they would then proceed to hold a preliminary hearing in District Court but not in trial.

However, later that same day, the Solicitor learnt that he victim, Mr. Sawyer, would refuse to testify against Mr. Perry and, in fact, was claiming totally lack of recall as to what happened.

Therefore, he had a very practical problem.

He did have a statement that Mr. Perry had made to the officer who had sworn out the warrant that, yes, he had cut him but it had been an accident.

Therefore, the Solicitor made that the deliberate choice to move again to re-amend the warrant to charge misdemeanor.

William H. Rehnquist:

Had the trial court granted the first motion?

James E. Keenan:

Yes, sir, it had.

It had been — amended the charge a felony and the record of the warrant shows the various markings on it that was first misdemeanor, then a felony, then a misdemeanor again.

He proceeded the trial in District Court on a plea of not guilty to the misdemeanor.

He was tried before the court alone because, under North Carolina law, one charge with a misdemeanor is not entitled to a jury trial in the District Court.

He then, after conviction —

And that — there couldn?t have been a felony charge in that court?

James E. Keenan:

He could not have been tried for a felony in that court.

That court could have conducted a preliminary hearing on the question of —

He could not have been tried there.

James E. Keenan:

No, he could not have been.

He then appealed to the Northampton County Superior Court which is his absolute right under North Carolina law.

Upon giving a notice of appeal, the Solicitor then asked the judge if they could go up on the felony.

The judge said ?fine,? and found probable cause on a felony warrant which, at that point, didn?t even exist.

The state then took an indictment to the Northampton County grand jury —

I think you lost me there.

You said the Solicitor asked the judge if he could go up on the felony.

James E. Keenan:

Yes, this is —

Now, what do you mean by that?

James E. Keenan:

This was after Mr. Perry had been given a six-month sentence.

He?s been convicted of the misdemeanor.

James E. Keenan:

Appealed.

And sentenced.

James E. Keenan:

And sentenced, and appealed.

And appealed.

And an appeal sets aside that conviction and sentence, does it not, automatically?

James E. Keenan:

Yes, it does, and it entitles him to a trial de novo.

Right.

James E. Keenan:

In the Superior Court.

Right.

James E. Keenan:

The Solicitor then inquired with the judge if he could go up on the felony charge.

Now, what do you mean by ?Judge, can I go up on the felony??

What?s that mean?

James E. Keenan:

In effect, it means that ?since he?s appealed, I?ve decided I want to try him on the felony rather than the misdemeanor the second time around.?

Why did he have to ask the District Judge?s permission?

James E. Keenan:

Well, I would contend that he had no right to ask anybody?s permission because —

No.

James E. Keenan:

— because at that point, he was bound by his election to try on the misdemeanor.

I know that?s your contention, but why do you suppose he thought he had to ask anybody?s permission?

James E. Keenan:

Because, I think he wanted to find a probable cause on the question of a — on the subject of a felony to take to the grand jury for progression by the grand jury.

Meaning that this is a preliminary hearing, that is it?

James E. Keenan:

Pardon?

Did the judge then have a preliminary hearing?

James E. Keenan:

No, there was no new hearing conducted.

The —

What kind of receiving is it?

James E. Keenan:

It was a farcical proceeding in this particular case.

Well, is there any Provision Court under North Carolina law?

James E. Keenan:

No, under North Carolina law they could have conducted a trial, which they did conduct on a misdemeanor.

They could have conducted a preliminary hearing on a felony.

And then bound him over to the Supreme Court.

James E. Keenan:

And then bound him over to the grand jury.

But they did conduct a trial on misdemeanor —

They did both, sort of?

James E. Keenan:

They only conducted one set of factual here.

It?s —

Yes.

James E. Keenan:

But in effect, made two judgments.

The first judgment was to give him a six-month sentence.

They tried him and convicted him on a misdemeanor —

James E. Keenan:

Yes.

And then they, more or less, had a preliminary hearing and bound him over on the felony. Is that it?

James E. Keenan:

No new evidence was heard.

No bound, no new evidence.

Did they enter — did the judge enter any kind of order?

James E. Keenan:

Yes, the judge — the minutes of that day shows that the judge, on his trial calendar, did enter a notation of a six-month sentence.

It also shows that on the official minutes he entered the finding of a probable cause after a plea of not guilty to a misdemeanor and a finding of guilty.

Under North Carolina procedure, that is an impossible set of circumstances where he, in effect, was tried on a misdemeanor, pled not guilty, found guilty, then their minutes say probable cause filed.

This was filed over to the grand jury.

That is just simply not a possible procedure but that is, in fact, what the minutes show.

William H. Rehnquist:

Do you ordinarily have a preliminary hearing before the solicitor takes the case to the grand jury in North Carolina?

James E. Keenan:

It?s not required, Your Honor, but it is the normal procedure that a person charged with a felony in the first instance will be brought in the District Court, will be appointed counsel if he is entitled — if he needs counsel or is entitled to counsel.

At that point, a preliminary examination will be conducted.

If the judge finds probable cause, it would be filed over to the grand jury.

The Solicitor does have the option of going directly to the grand jury.

Thurgood Marshall:

Mr. Keenan, is any of this in the record?

James E. Keenan:

Yes, the original petition, the pro se petition of Mr. Perry, basically set forth the facts that he had been tried, given six months —

Thurgood Marshall:

You?re not talking about this, are you?

James E. Keenan:

No, I?m talking about his petition in the record.

I?m not talking about the brief.

Thurgood Marshall:

But this is not the brief.

This is the appendix.

James E. Keenan:

The appendix just contains excerpts from the petition.

I believe the record itself shows that Mr. Perry pled in his petition that he had been tried in District Court.

Thurgood Marshall:

I?m talking about all this you said that the man came in and said, and he said and she said, the Solicitor said.

James E. Keenan:

No, that?s not in the record.

That has been gained from my discussion with the counsel involved in the case.

The record —

Thurgood Marshall:

So, it?s a third-hand.

James E. Keenan:

Second-hand, [Laughter]

Thurgood Marshall:

Second-hand, if he is that.

James E. Keenan:

The record does show that Mr. Perry was tried on a misdemeanor, given a six-month sentence, appealed, and then indicted on a felony.

The state, in his answer, admitted these allegations.

So, there was no evidentiary hearing conducted in the District Court on these allegations.

We contend, well, just to finish up briefly, after the matter had been brought over to the grand jury, he was indicted for the 10-year felony.

He came into court.

He had a disagreement with his lawyer.

A new lawyer was appointed.

And at that time, a plea of guilty was entered as charged to the 10-year felony, and he was given a five to seven-year sentence concurrent with the sentence being served at that time which, as the District Court found, effectively raised his sentence by one year, five months and one day over the sentence received in the District Court.

Now our basic contention is, first, that the act of the state, in proceeding to charge Perry in attempt to try him with a felony in the Superior Court, denied Perry double jeopardy and that, therefore, there was — there is an independent constitutional violation to be showed.

William H. Rehnquist:

Granted in double Jeopardy, don?t you —

James E. Keenan:

Pardon?

William H. Rehnquist:

Granted in double Jeopardy.

James E. Keenan:

Granted, right.

We contend this because Perry, in appealing the misdemeanor conviction we allege, did not waive his double jeopardy right as to a felony charge with which the state had chosen not to try him in the first instance.

Have you have some authority on whether or not federal authority or —

James E. Keenan:

We think Green and Pryce control in this particular instance.

Green?

Well, he was never charged with the — he was never charged with the felony but he was first tried with misdemeanor.

James E. Keenan:

That is correct, but we think what?s important is that the state had the full opportunity to make a decision whether they were going to proceed on the felony or the misdemeanor.

Is that in Green?

James E. Keenan:

It?s not Green exactly because —

There?s no case that you could cite.

James E. Keenan:

Well, Wood versus Ross in the Fourth Circuit.

Well, it?s not here.

We have many cases here.

James E. Keenan:

No, but I contend that the rationale of —

(Inaudible)

James E. Keenan:

Green and Rice cannot be distinguished.

Excuse me, Green and —

William H. Rehnquist:

Green was a case in the federal system, wasn?t it?

James E. Keenan:

Right, and Pryce was a case in the state system which, I think, the Green case was basically applied.

But he was never acquitted.

He was neither convicted nor acquitted in the felony.

William H. Rehnquist:

That is correct, in the District Court.

Well, he was never — he was tried for the misdemeanor.

He was never either acquitted or convicted at the felony.

James E. Keenan:

That is correct.

He couldn?t have been tried for felony.

James E. Keenan:

He could not have been tried for the felony in the District Court.

When was he ever tried, convicted, or acquitted of a felony twice?

James E. Keenan:

Our contention is that the state, in a matter like this, has to make an election.

They are not free through a series of successive courts to keep elevating the charge up simply by arguing that the lower court did not have jurisdiction to —

To make an election as to what they could have tried him for both in the first instance.

James E. Keenan:

No, they could not because there is only one incident here.

Well, they could have, I suppose, have one — you think this one was a lesser included offense?

James E. Keenan:

There is no question under North Carolina law that it is a lesser included offense.

Well, I think it could?ve tried him for both of them then in the — not in the lower court but in the court in which he appealed.

James E. Keenan:

Absolutely not.

No?

Suppose the state had tried out — started out from the felony charge?

James E. Keenan:

Okay.

And then indicted at the Superior Court.

Now, they would?ve tried him with a felony and they could have found him guilty in the lesser event.

James E. Keenan:

That is correct.

So they would — could?ve tried him for both of them.

James E. Keenan:

No, they could?ve tried him on the felony and found him guilty of the misdemeanor.

They could not, in effect, have two successes of trials.

He could not have been convicted, I gather, on the felony indictment in both of the felony and the misdemeanor.

James E. Keenan:

That is correct.

He could?ve been convicted of the felony or the jury could?ve convicted him of the misdemeanor.

James E. Keenan:

That?s correct.

They tried him on the felony and the jury convicted him with the misdemeanor.

Certainly then, he could not be tried again for felony.

Like in Green.

James E. Keenan:

That?s correct, right.

But we contend that the state was not free, having made their election in the first instance, to then reverse course and attempt to try him with the felony in the Superior Court.

You?re saying, in effect, that they?d done the same — attempted the same thing as they went through within Green.

James E. Keenan:

Right.

And, the major point I would make is that we would contend that if Perry had not appealed, for instance he had been given the six-month sentence in the District Court, if he had said ?fine, that?s a justsentence and I?ll take my punishment and go off to jail,? we certainly contend at that point the state would not have been free to turn around and say ?well, you?re going up to Superior Court in this felony charge.?

Well I gather your brother agrees, at least under North Carolina law, they could not have tried him on the felony charge had he not appealed the misdemeanor conviction.

As I understood his argument, it?s that they could try him on the felony charge because of his appeal from the misdemeanor conviction reopened.

James E. Keenan:

I know of no other way they could?ve re-tried it.

What is the North Carolina — is it a constitutional rule or a statutory rule, or a rule of practice, or what?

If you assume he had to appeal from his misdemeanor conviction.

James E. Keenan:

Well, North Carolina has basically a rule of practice, but I would also pretend it?s a constitutional rule.

But actually, what powers are articulated in North Carolina, just as a rule of practice?

James E. Keenan:

Yes, but I mean it?s not articulated in a written form.

As long as the misdemeanor conviction stands, they just don?t charge him the felony.

James E. Keenan:

Right.

Because of the felony, they could try it for that in the first instance and they?re not forced to effect trial for the lesser included offense and then go on and try him for the felony later.

They have the option at the first instance of proceeding with the —

That?s their practice?

James E. Keenan:

It was proceeding with the felony.

But you also submit that that?s — that practice is required by the United States Constitution.

James E. Keenan:

Yes, that?s exactly what we submit.

We submit that when the sate has made an election, they?re bound by that election.

That they are not free then to proceed and try to elevate the charge at a de novo proceeding in the Superior Court.

And as my brother Brennan suggested, I understood your opponent here to agree with you if the case were that the original misdemeanor conviction had been unappealed, had been undisturbed.

I think the representative of the Attorney General of your state says ?yes, in that case, we would not,? and I understood him to say ?we could not then bring a felony prosecution for precisely the same event.?

James E. Keenan:

That?s our position.

And the only question is whether that rule is different or this appears when, at the defendant?s behest, the original conviction was set aside.

James E. Keenan:

Right, and we contend that a price cannot put on appeal that one must face a more elevated form merely for exercising the right to get that appeal.

I want to touch on —

Well, that?s a different point.

That?s not a double jeopardy point.

James E. Keenan:

Right, it?s a due process point but I think that the due process and double jeopardy at this point begins to merge.

Well, what you?re saying is it?s a burden on appeal.

James E. Keenan:

There?s no question about that.

Slightly defeated or attempt to the state to hear by then bringing in a felony charge.

Thurgood Marshall:

Is there anything in the record to show what happened on the trial de novo on the misdemeanor?

James E. Keenan:

Pardon?

Thurgood Marshall:

Is there anything in the record to show what happened?

This man said ?I?m appealing.?

James E. Keenan:

Yes.

Thurgood Marshall:

Is there anything on the record to show what happened there?

James E. Keenan:

In the trial de novo in the misdemeanor?

Thurgood Marshall:

Yes.

James E. Keenan:

There was no trial de novo.

Thurgood Marshall:

Well, what happened to it?

It just disappeared.

James E. Keenan:

It disappeared in to the felony indictment.

That?s what happened to it.

He was never brought to Superior Court on the misdemeanor.

What was the maximum sentence if he was subject to a misdemeanor?

James E. Keenan:

Two years.

Under North Carolina law virtue —

What did he get on the felony?

James E. Keenan:

He got five to seven years concurrent with the sentence being served, which effectively raised the sentence by one year, five days and, one month.

William H. Rehnquist:

In your de novo appeal to the Superior Court on your misdemeanor, I take it, it?s then up to the state to reinstitute to prosecution all over again in the Superior Court?

James E. Keenan:

Right.

William H. Rehnquist:

Isn?t the question of a hearing on the record of the defendant, having to take the initiative to bring the case to the court?s attention?

James E. Keenan:

Well, that is correct.

The Solicitor sets the matter down for trial on the award generally, the misdemeanor award.

And the case is heard all over.

The judgment is stricken, in effect, and the defendant is given a jury trial in this instance which you cannot waive.

I would like to make one brief point regarding the jury trial.

In order to get a jury trial which he was constitutionally entitled to, because the matter of which he was being tried carried a maximum sentence of two years, he had to first, submit to a non-jury trial in District Court because there is no provision under North Carolina law for a jury trial in the District Court.

We contend that this was unconstitutional and that it deprived him of a right of a jury trial for two reasons.

First, this Court in Ward versus Village of Monroeville that there is no authority for the proposition that a constitutional right can be deferred on the ground that it is available at a subsequent de novo proceeding.

Before you — excuse me, I apologize for interrupting you but I?m curious.

Does the record show or do you know why, after having pleaded not guilty to a misdemeanor, he then pleaded guilty to a felony?

James E. Keenan:

The record doesn?t show because there was no hearing held in District Court.

But you told us that at the earlier stage, the first trial, the man who was cut would not testify —

James E. Keenan:

And the man would not testify at the second trial either.

Well, why did he plead guilty?

James E. Keenan:

He pled guilty, and I?m basing it on conversations with him and his attorney.

Again, there?s been no evidentiary hearing.

James E. Keenan:

He pled guilty because, all of a sudden, on this charge which carried a maximum sentence of two years.

He was faced with a 10-yaer felony which we contend he could not even constitutionally be placed at jeopardy of.

And was, in effect, offered a deal.

Oh!

It was a plead bargain.

James E. Keenan:

Which he was told that he would get a concurrent-type sentence if he pled guilty.

I see.

James E. Keenan:

So, in effect, he ran.

If I can come back to the jury trial issue for just a moment, in Colten this Court held that a sentence on trial de novo could be increased in a two-tier court system such as that held in North California.

We contend, under this decision and under the decision of United States versus Jackson, this creates a dilemma in that a defendant who has to appeal to get his jury trial right because this was a two-year misdemeanor has to run the risk of an increased punishment.

And we contend this is precisely what the court said in Jackson cannot be the case with the exercise of a right to a jury trial.

He —

William H. Rehnquist:

Well, but he was never sentenced as a result of the District Court?s judgment.

James E. Keenan:

Yes, he was.

He was sentenced to six months.

He appealed.

William H. Rehnquist:

And then that vacated the thing without more.

James E. Keenan:

That?s correct, but he was placed in jeopardy of receiving after two years in prison in the District Court without his constitutional right to a jury trial.

That?s our point.

William H. Rehnquist:

But he was never charged in the Superior Court.

James E. Keenan:

He was charged with a felony —

William H. Rehnquist:

Yes, but not with the crime he was charged with in District Court.

James E. Keenan:

No, he was charged with the greater included offense of what he was tried in the District Court.

William H. Rehnquist:

It says as a separate offense.

James E. Keenan:

No, it?s — I don?t think there?s any question but it?s a greater included offense.

Greater included, what?s that?

William H. Rehnquist:

It?s a novel term, ?a greater included offense.?

The state says the elements of the crime tried in the Superior Court were different than the elements of the crime tried in the District Court.

And they were, weren?t they?

James E. Keenan:

They include two additional elements.

Which you didn?t have to prove in the misdemeanor trial.

James E. Keenan:

Which did not have to prove in the misdemeanor trial, that is correct.

And on de novo, misdemeanor trial would not have to prove either?

James E. Keenan:

That is correct also.

But I gather had he got his de novo Superior Court trial — it is Superior Court, isn?t it, in the state?

James E. Keenan:

Yes.

He ran the risk of getting his sentence increased if found guilty by the jury from six months to two years.

James E. Keenan:

That is correct.

Whereas, what in fact happened to him instead of — he could?ve got up not more than two years instead of which he gets five years and seven months.

James E. Keenan:

Well, what could?ve happened on the —

I mean, five to seven years?

James E. Keenan:

Right, although it was concurrent.

Nevertheless, it did effectively raise by a year-and-a half the sentence received in the District Court.

Does the state have the option of starting a misdemeanor trial for you?

James E. Keenan:

No, it does not.

It must try a misdemeanor in the first instance in the District Court.

The statute is cited in my brief and, on that score, the state has to proceed with the first instance to a District Court on a misdemeanor.

On a felony, it can proceed directly to the Superior Court or it could proceed to the District Court for preliminary hearing and then on to Superior Court for trial.

A misdemeanor could be tried twice: first, in the District Court and, secondly, in the Superior Court de novo.

Warren E. Burger:

When was this code — when was this codified in your state?

James E. Keenan:

This has been the procedure for years.

I really can?t give you the date, Mr. Chief Justice.

Warren E. Burger:

100 years or so?

James E. Keenan:

Pardon?

Warren E. Burger:

100 years or more?

James E. Keenan:

I would think so.

Yes, sir.

It?s an old established procedure in the State of North Carolina.

Of course, we?ve got a problem in that Mr. Perry pled guilty in the Superior Court to the felony.

And I realize the burden to distinguish that from the Brady trilogy and from Tollett versus Henderson.

James E. Keenan:

We contend that there are several tailing distinctions.

In the first place, and of course this I?ll state.

This is in effect, taking as granted the validity of the double jeopardy argument of which the whole argument is based.

The first argument is in that each of those prior cases there was a legitimate state interest in punishing the person for the crime to which the guilty plea was entered.

We disagree with Mr. League that the Double Jeopardy Clause was designed just to protect the innocent.

I think it?s clear that it is also designed to protect the guilty from repeated punishment and we contend that the state had no legitimate interest, in this particular instance, in punishing Jimmy Seth Perry on a felony of assault with a deadly weapon with intent to kill effecting serious bodily injury.

They lost that right when they made a determination to proceed with a misdemeanor in the District Court.

Secondly, we contend that on the issues involved in the other cases, there was a situation that existed where if the infirmities involved were corrected, the trial could proceed and punishment could be imposed, for instance in the case of Tollett versus Henderson, illegally constituted grand jury.

This is not the Tollett defendant.

He is free to go.

What would you say if the defendant says to his lawyer ?well, could I get tried with felony??

And he says ?well, that?s an unsettled issue.

It?s about 50-50 I would guess in the Supreme Court.

I don?t know whether you?d win or not but, now, we got to make a choice.?

Now, the prosecutor says ?we?ll — we could have a deal on two years if you plead guilty.?

Now, it may be that you shouldn?t plead guilty at all.

We could win on double jeopardy.

The prosecutor doesn?t think its double jeopardy.

I think it is, but I don?t know whether I am right.

James E. Keenan:

In that particular instance, where there is a conscious discussion of the fact that the issue was there and that it can be presented or not presented based on tactical considerations.

I think that it could probably be held to be a surrender of double jeopardy to plead guilty.

But, what I?m saying is that an issue such as double jeopardy that factor has to be there.

William H. Rehnquist:

Well, neither Tollett nor McMann certainly spoke in terms of conscious decision and consultation.

They said that once you have the guilty plea, that?s the end of it so far as everything that antedated the guilty plea regardless of any waiver type test like having your right of counsel cases.

James E. Keenan:

Right, that is correct.

But what we?re alleging is, in those particular instances the fact that the person pled guilty was significant because of the fact that the guilty plea, in effect, resolved the factual matters at issue in the case.

He doesn?t have a guilty plea but it was based on in or after adequate representation by counsel?

James E. Keenan:

Yes.

In this particular instance, the fact that Jimmy Seth Perry may in fact have been guilty of a felony, we contend, is just totally irrelevant if our double jeopardy claim is valid.

The fact that he may have, in fact, committed the felony would not, in effect, give the state the right to punish him for the felony.

If you were representing a defendant and you were assured of your double jeopardy point, as you are here, you would never permit him to plead guilty.

James E. Keenan:

That is correct.

I would not have pleaded Mr. Perry guilty.

Now, still in Brady and plus the other cases suggest that perhaps these cases are the ones with guilty please and then you turn it to a representation of counsel case.

James E. Keenan:

That is correct.

Do you think that in the view of the state and the law that the attorney representing Mr. Perry was — furnished inadequate representations by permitting him to plead guilty?

James E. Keenan:

I am in this instance, speaking outside the record because I?ve had frequent discussions with the attorney recently regarding this.

At the time, the attorney had no comprehension that such an issue existed.

He did not discuss it with Mr. Perry.

He thought, in terms of the fact, that it was trial de novo and, therefore, the state was free to do what they pleased.

It?s hard for you to find the case that would also support your view, isn?t it?

James E. Keenan:

I don?t think so.

I think Green and Pryce support me.

I don?t think the double jeopardy question is that hard to see.

I think, in fact, it?s a clear double jeopardy.

I think that the attorney should have been aware of the fact that it did exist.

Warren E. Burger:

You speak rather readily of what you would do, but what if the defendant said ?I insist on pleading guilty,? and it?s quite clear that he has that right, isn?t it?

James E. Keenan:

Yes, I think a person has a right to waive double jeopardy so long as he knows he?s waiving it.

I don?t have any problem with that.

If he makes an intelligent and knowing decision that, ?yes, it?s in my best interest for tactical reasons to,? let?s say ?plead guilty even though I may have been —

William J. Brennan, Jr.:

Would you say that if the concept of double jeopardy were absolute bar to a second prosecution where it applies?

James E. Keenan:

There might be a situation, Mr. Justice Brennan, where a person, let?s say, is charged with 10 felonies —

William J. Brennan, Jr.:

What is the concept of double jeopardy?

Is it supposed to be an absolute bar to a later prosecution?

James E. Keenan:

That?s the way —

William J. Brennan, Jr.:

In any situation where it applies?

James E. Keenan:

That?s what I believe it to be.

William J. Brennan, Jr.:

Well, then I must confess.

I?m surprised to hear you say it can be waived.

James E. Keenan:

I would say it only could be waived — only in the first instance where a person knows in fact what he?s doing.

James E. Keenan:

I could conceive of tactical situations where it might be waived.

Harry A. Blackmun:

The exclusionary rule of Mapp against Ohio is an absolute bar to the introduction of evidence wrongfully seized.

Certainly, that would be waived, isn?t it?

James E. Keenan:

Certainly.

William J. Brennan, Jr.:

That?s quite different from double jeopardy.

I didn?t suggest it was the same right as the double jeopardy.[Laughter]

Warren E. Burger:

One is constitutional and one isn?t.

James E. Keenan:

One other point we wish to make is that, with regards to double jeopardy, the law on which Mr. Perry primarily was basing his claim in the District Court, Wood versus Ross a Fourth Circuit decision, postdated the entering of his guilty plea.

We contend that the fact that double jeopardy has been given retroactive effect is significant on this particular score.

I realize, in prior cases this Court has held that when a guilty plea is made, it?s not set aside merely because later developments of the law may in fact give a person a valid claim.

But again, we would go back to our position that in these particular instances the state had a legitimate interest in punishing the person for the charge involved.

In this particular instance, there is no legitimate interest.

And secondly, to perhaps join the point Mr. Justice Brennan just briefly made, this is an instance where if the person knew of the double jeopardy bar particularly in the facts of this particular case, there would?ve been no reason in the world to waive it.

William H. Rehnquist:

Well, there was no legitimate interest if there was double jeopardy.

James E. Keenan:

I?ll grant you, I?ve got to convince this Court there was a double jeopardy violation or denial of a right to a jury trial, one or the other.

I can?t prevail there was no constitutional deprivation.

I?ll concede that.

William J. Brennan, Jr.:

What?s the state suppose to do when the double jeopardy question is unsettled?

James E. Keenan:

I think —

William J. Brennan, Jr.:

Trial or not?

James E. Keenan:

I think the state has the right to proceed the trial.

Byron R. White:

It has an interest, doesn?t it?

James E. Keenan:

Yes, it does.

But, the state does — if the double jeopardy issue should be cited against the state, then the state?s interest is forfeited or lost.

William J. Brennan, Jr.:

That?s what the question is about, to plead guilty.

James E. Keenan:

Right.

William J. Brennan, Jr.:

And that?s against the background (Inaudible).

James E. Keenan:

The state does have an interest.

But the question of whether or not the guilty plea surrenders or forfeits the double jeopardy claim, we think, in the question of double jeopardy which we do see as an absolute bar to re-trial brings about fact that the state must, in fact, show that the person consciously made a decision to surrender the right.

The second conceivable situation would be where a person deliberately bypassed state remedies.

James E. Keenan:

Again, this would be a very, very rare case because why would a defendant forfeit a possible state remedy?

The other question that was brief related to what Boykin requires that a defendant be warned of.

If the rule is to be a flat rule that one who pleads guilty surrenders any prior constitutional right with no qualifications whatsoever, we would contend that the defendant ought to be told that at the time he pleads guilty so that here could be no question in his mind that this is not a matter that?s going to be resolved through later writs or through later court proceedings.

In this particular instance the judge did run through a series formal of questions, which are in the record, with the defendant and which indicated that he was warned that he could receive a certain maximum sentence, and that he did have a right to trial by jury, and that he did have a right to be represented by counsel and so forth.

However, there is nothing in the record that indicates and in effect of what?s been asked.

There?s nothing that indicates that Mr. Perry was informed.

If you plead guilty here, don?t ever come back to court in any constitutional claim.

And we contend that if that is to be the rule, then the defendant should be told precisely that.

William H. Rehnquist:

Did Judge Larkins rule on the Boykin type claim or did he just not reach it?

James E. Keenan:

He just didn?t reach it, Mr. Justice Rehnquist.

He held that there was a violation of double jeopardy, one, and secondly, that it wasn?t waived by the plea of guilty.

Thank you.

Warren E. Burger:

Mr. League, do you have anything further?

Richard N. League:

No, Your Honor.

Thank you.

Warren E. Burger:

Mr. Keenan, you appeared here at our request by the appointment of this Court.

James E. Keenan:

Yes, sir.

Warren E. Burger:

On behalf of the Court, thank you for your assistance to your client and your assistance to the Court.

James E. Keenan:

My pleasure, sir.