Bordenkircher v. Hayes – Oral Argument – November 09, 1977

Media for Bordenkircher v. Hayes

Audio Transcription for Opinion Announcement – January 18, 1978 in Bordenkircher v. Hayes

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Warren E. Burger:

We will hear arguments next in Bordenkircher against Hayes.

Mr. Chenoweth, I think you may proceed whenever you are ready.

Robert L. Chenoweth:

Mr. Chief Justice and may it please the Court.

The question the petitioner presents to Your Honors by this case is whether an indictment under a habitual criminal statute by the state is constitutionally prohibited when it is brought after an accused has rejected a plea-inducement offer.

It is petitioner’s position and submitted that it should be the position of this Court that the prosecuting procedure used in this case does not violate any constitutional rights of a defendant.

The record in this case is a simple one and the basic facts are not in dispute.

Of importance though, I believe, is that the Commonwealth of Kentucky had overwhelming proof of Mr. Hayes’ guilt.

Mr. Hayes have been charged with a substantive offense of uttering a forge instrument which, under Kentucky law, carried a possible sentence of 2-10 years in the penitentiary.

Thurgood Marshall:

It was a forgery of an $88 check?

Robert L. Chenoweth:

This was not a forgery, Your Honor.

This was uttering, there, being a difference in elements.

Thurgood Marshall:

It was $88.

Robert L. Chenoweth:

Yes, Your Honor, it was $88.

Thurgood Marshall:

How many years for that (Inaudible)?

Robert L. Chenoweth:

The possible penalty range for that substantive offense is 2-10 years.

This is under the law as it existed prior to our Kentucky Penal Code.

That law has been changed.

Thurgood Marshall:

Good.[Laughter]

Robert L. Chenoweth:

The prosecutor offered a sentence recommendation to Mr. Hayes of five years on this uttering charge.

This offer was rejected, although Mr. Hayes was advised prior to the rejection that an enhancement charge could be brought in view of Mr. Hayes’ two prior felony convictions.

After the rejection, the prosecutor did go back to the grand jury, did re-indict so as to include in the indictment an enhancement charge and the original substantive offense of uttering a force instrument.

The petitioner believes that it is important in this case to consider the unique character of an enhancement statute as it relates to plea negotiation.

This Court in Oyler v. Boles indicated that an habitual criminal enhancement charge does not create a separate and distinct substantive offense.

William H. Rehnquist:

Let me interrupt you just a second, if I may, General Chenoweth.

In the course of a plea bargaining, did the prosecutor offer to drop any of the charges or simply to make a sentence recommendation?

Robert L. Chenoweth:

At the time that the plea negotiations were going on at a pretrial conference, really two pretrial conferences, there was only the singular substantive offense of uttering a forged instrument.

It was really a sentence recommendation possibility and that there were no other charges to deal with at that time.

The basic plea-inducement capability at that time really was a sentence recommendation.

The enhancement statute does not constitute a substantive offense.

I think that is very critical in view of the prosecutor’s broad discretionary powers in deciding whether to charge and what to charge, and especially so as this relates to the national interest for a number of reasons of a prosecutor seeking to enter into plea negotiations with the criminally accused.

Robert L. Chenoweth:

This case then involves the timing and the scope of a prosecutor exercising his charging discretion when the possibility of an habitual criminal charge exist, a non-substantive offense, and a plea negotiation is nevertheless desirable.

Now, if the prosecutor is faced with facts that will support an indictment on the substantive offense and a non-substantive enhancement charge, the prosecutor has to decide whether he wishes to indict the accused as a habitual offender and if so, he has further to decide whether to seek an indictment on that habitual criminal statute at the time the principal offense indictment is returned.

He is faced with that kind of decision when he has the facts initially before him.

Now, it may be that the prosecutor will decide that an indictment is proper under a habitual statute, but since the prosecutor, in looking at the facts of the case, has determined that he intends to offer some kind of plea-inducement on the substantive charge that he would decide that the plea negotiations can proceed more fairly and proceed more expeditiously if an indictment on the substantive offense only is sought at that time.

Harry A. Blackmun:

Let me interrupt you there.

Why would he reach that conclusion?

Do you think that plea bargaining is more likely to ensue with an initial lighter charge than the enhancement aspect?

Robert L. Chenoweth:

Yes, very definitely, if I understand your question, Mr. Justice Blackmun.

The very reason that a prosecutor will come to that kind of conclusion when he has those facts before him is that if he has a strong case, as there existed in the Hayes’ case, he has to realize that if he is going to enter into any kind of plea negotiations that he cannot enter into plea negotiations if there is an habitual charge already on the books.

Harry A. Blackmun:

Why not?

Robert L. Chenoweth:

Well, he has to be willing if he has already gotten the case to the posture of having an habitual charge.

He is going to have to be willing to remove that habitual charge before he can go to the prosecutor and say “I am willing to enter into plea negotiations,” because no defendant is ever going to plead guilty to a charge as long as that enhancement statute is still on the books.

It will still continue to enhance whatever the plea arrangement that was arrived at.

So, the prosecutor has to be willing if that indictment on the habitual charge is brought in the beginning.

Harry A. Blackmun:

You are coming up from the other side of the case.

Why does the prosecutor not bring everything in the original indictment or information, everything and take it from there with his plea bargaining, if that is what he wants?

Robert L. Chenoweth:

Because if he brings everything, he is going to have to and he desires to go forward with plea negotiations, he is bringing an element into the negotiations that he really need not bring and that is the habitual criminal indictment.

Harry A. Blackmun:

I thought you are saying that he has to give away more?

Robert L. Chenoweth:

That is really so.

He does have to give away more.

He has to say to that defendant “here is what I am giving to you and the first thing that I have to give to you is that I will be willing to go to the court and move to dismiss the habitual criminal indictment.”

Harry A. Blackmun:

Does that not sound like a better deal for the defendant then?

Robert L. Chenoweth:

I do not know why that it should in the —

Harry A. Blackmun:

Is it not anything that is strange to the defendant?

He knows what his record is and he knows this is hanging over him like a sword, so to speak.

I guess I have trouble following any explanation of why the one charge is initially brought and the other is used as dynamite in reserve?

Robert L. Chenoweth:

It seems to me the type of thing that why should the prosecutor go forward on a non-substantive charge as is involved in this case and indict on that habitual criminal element of a case and then turn right around and be willing “I have got it, but now I will be glad to give it away if we will go forward on plea negotiations.”

Harry A. Blackmun:

I will give you one reason that neither you nor your opposition suggests, at least I think it is a reason, is not bail likely to be higher?

Robert L. Chenoweth:

Yes, but we are talking at that point in time of, in fact, a procedure that you are indicating of bringing everything in the first instance that that is going to work to the detriment of the defendant, not the prosecution.

If the prosecution goes in and indicts on the —

Harry A. Blackmun:

I realize this and I intend to ask your opponent that same question, but I think this is a consequence that perhaps there is a reason for not bringing the initial, the full charge initially?

Robert L. Chenoweth:

Very definitely.

Harry A. Blackmun:

I do not think anybody is being fooled.

Everyone knows what the record is.

Robert L. Chenoweth:

Sure, they understand that there are prior felonies in existence, but I think we are talking about two ways to get to the same point, either bring them from the beginning and be willing to give up the enhancement if you are going to go forward on plea negotiation or if you believe that there is a reasonable possibility of entering into plea negotiations and arriving at a plea arrangement, and especially you are going to feel that way to have an overwhelming case as you had here a proof of guilt, that why get that indictment for the enhanced offense on the books and then be willing to turn right around and in the statement of one writer, give the sleeves of your vest?

You are not really giving the defendant anything.

You have to get rid of that or you are never going to go further on any kind of plea-inducement, whether it would be sentence recommendations, a charged dismissal, or having a lesser included defense type of plea-inducement.

So we think —

Potter Stewart:

Mr. Chenoweth.

Robert L. Chenoweth:

Yes Mr. Justice?

Potter Stewart:

In the Commonwealth of Kentucky, after a grand jury has indicted someone under your habitual criminal statute, may the prosecutor dismiss that indictment without consent of the court, is he free to do whatever he wishes to do?

Robert L. Chenoweth:

Yes, there is to my knowledge no guidance.

The courts on that type of charge, the prosecutor goes to the court and that charge would be dismissed.

The court has to accept the motion.

Potter Stewart:

Just on the prosecutor;s say so?

It does not require consent of court or if it does it is a rubber stamp operation?

Robert L. Chenoweth:

Consent of court to the extent that you would have to make the motion and an order would have to be entered.

Potter Stewart:

And it would be pro forma granted?

Robert L. Chenoweth:

I think that would be very safe to say, Your Honor, that this is a matter within that discretionary power of the prosecutor and the judge is not going to tell the prosecutor to go forth —

Potter Stewart:

It is the grand jury who has brought the indictment?

Robert L. Chenoweth:

This is so upon request of the prosecutor.

Potter Stewart:

And upon the showing of the prosecutor?

Robert L. Chenoweth:

Yes.

Potter Stewart:

It is going to be dismissed in practical fact in the unreviewable and untrammeled discretion of the prosecutor, is that it?

As a matter of fact, it is in the Commonwealth?

Robert L. Chenoweth:

That is safe to say that the judge is not going to say “prosecutor, you go forward with that what you do not want to go forward with.” So to that extent, I think that it would be very, very rare situation where that would be denied.

Potter Stewart:

Are you really saying that?

As I understand your answer, you are saying there is no discretion on the part of the court.

Once the prosecutor takes the position, the court has to go along?

Robert L. Chenoweth:

I would not go so strongly as to say that.

Robert L. Chenoweth:

No, I do not intend to say that.

Potter Stewart:

Then there is some discretion on the part of the court?

Robert L. Chenoweth:

Sure, that there would exist discretion in the judge to say to the prosecutor that “I want to have a reason.

I want to have some greater showing than a mere –”

Potter Stewart:

Well, now wait a minute.

Now, you have given two different answers.

I asked for information and you said it was a rubber stamp pro forma operation and now you are saying something quite different.

What is the answer?

Robert L. Chenoweth:

Let me please try and explain that.

What I am saying, Mr. Justice Stewart, is that I think in almost all situations it would be plainly a pro forma type of response of the court.

Potter Stewart:

Your law requires that a grand jury indictment can be dismissed only with consent of the court or does it not, first of all, just what the law provides?

Robert L. Chenoweth:

The judge does have to pass on, yes.

So to that extent, it is with the consent of the court, but I cannot conclusively say that there could never be a possibility of the judge denying it.

I cannot say that he has no choice, but to grant it, but he is going to and the history would bear out that he has.

I have never known of a situation of a judge ever denying a motion to dismiss, but I think under some circumstances, I cannot begin say that —

Potter Stewart:

But you do not know of any?

In your experience or knowledge, you have never heard of it?

Robert L. Chenoweth:

That is correct, Your Honor.

I can very conscientiously say that.

I have never seen a judge refuse a motion by a prosecutor.

Potter Stewart:

Nor ever heard of it?

Robert L. Chenoweth:

No, Your Honor, I can say that.

I have never heard of it either.

In this case, the prosecutor did make the decision to go on the substantive charge of uttering only, made the offer of a sentence recommendation, and at the same time or at that time of plea negotiation at the pretrial conference did inform Mr. Hayes, as of course Mr. Hayes knew that he had two prior felonies, that he could back, that it was an alternative to go back and get the enhancement statute.

Mr. Hayes, faced with that with counsel present, chose to exercise his Fifth and Sixth Amendment rights, chose to plead not guilty and rejected the pro-offer, negotiated arrangement of the prosecutor.

I think that in this situation we have, from the United States Court of Appeals for the Sixth Circuit, we have a situation of a court having said, recognizing that there are two ways to get to the same point.

That if you do it one way that that is vindictive that that is in violation of constitutional rights, but if you do it the other way it is not.

By that, we are saying that if you indict in the beginning on the substantive offense and the enhanced charge and then go to the defendant and say “I got it a minute ago.

Now, I am willing to move to dismiss it if we can enter into some kind of plea negotiation.

If not, we will go forward into trial with the enhancement on the books which could subject you to life if you had two prior felony convictions.”

Robert L. Chenoweth:

That is an accepted plea negotiation, an accepted offer, but in a face, as in this case, overwhelming charges, if you believe that a plea arrangement can be entered into and you go only on the substantive offense while informing that the alternative does exist, that you then after the plea is rejected you go forward and do that which is legally permissible by the prosecutor to go back to the grand jury, that that is vindictive that that is in violation of the due process.

Thurgood Marshall:

What would happen if the prosecutor said “we have got overwhelming evidence of you uttering the $88-check,” and you are indicted for that“ and we also have overwhelming evidence that you also embezzled $460.

If you do not plead on the check, we will indict you on the other one.”

Robert L. Chenoweth:

If I understand your question correctly, we are talking about completely unrelated offenses, not arising out of the same conduct.

Thurgood Marshall:

It is okay.

Robert L. Chenoweth:

No, I am not saying that is okay.

I am not saying that that is really an aspect of this case at all.

I think it is a very indifferent consideration.

Thurgood Marshall:

I said it is entirely different?

Robert L. Chenoweth:

Yes, sir.

Thurgood Marshall:

Would you find anything wrong with that, where you were using some pressure?

Robert L. Chenoweth:

No, I do not find pressure as being in violation of due process at the plea bargaining stage.

I think the very nature of the plea negotiation stage of the pretrial stage recognizing the adversary nature of the prosecution —

Thurgood Marshall:

Suppose he says “we also have an overwhelming evidence that your wife also stole $180.

If you do not plead, we will indict her?”

Robert L. Chenoweth:

I think and certainly we recognize, as this Court recognized, as Mr. Chief Justice Burger indicated in the Santobello case, there are limits.

It is not a carte blanche and we do not begin to argue, would we argue if those were the facts before us, that a prosecutor has absolute carte blanche to do whatever he wishes, including physical pressure.

Thurgood Marshall:

We will go back to my original one.

If he says “we can indict you for another offense.

You uttered two checks, one for $88 and one for $160.

We got the best evidence in the world on both of them.

We have got you on the $88 one when we got you indicted on that one.

If you plead guilty on that one, we will not indict you on the other one?”

Robert L. Chenoweth:

I think that is very legitimate plea negotiation.

What we are talking about in the language of some commentators to this area is what is called horizontal overcharging.

That is really what we are talking about when we have different substantive offenses that do not relate, or maybe they do relate, but a prosecutor has that discretion to decide what to charge.

Really in a strong case he is going to, in many instances, charge initially on those things that he feels that he will be able to best negotiate a plea of guilty for.

But, at that point in time before we have ever gone to the trial process, I think that those kinds of additional substantive offenses is legitimate coercion, if you will, if that is the term, that has been used, I think that is legitimate coercion because the very nature of the proceedings at that point in time with the prosecutor having really an overwhelming amount of discretion.

Thurgood Marshall:

Some will not agree that you can have “legitimate pressure?”

Robert L. Chenoweth:

Yes, I understand that.

Thurgood Marshall:

One means apples and the other means rocks?

Robert L. Chenoweth:

That there cannot be that.

There are people that would like to say that the plea negotiation process has no place in our criminal justice system.

Thurgood Marshall:

They are not saying it here?

Robert L. Chenoweth:

Yes, that may be so, but yet and still, clearly to say that there are people having different viewpoints on various aspects arising out of it —

Thurgood Marshall:

There are limits that the prosecutor could go to, if you say that.

Robert L. Chenoweth:

Sure.

Thurgood Marshall:

Everybody agrees on that.

Robert L. Chenoweth:

We would be very, very foolish to say otherwise of course.

The United States’ Sixth Circuit Court of Appeals, in deciding that one way is violation of due process rights and the other is not, based its decision in great respect on the decisions on this court in North Carolina v. Pearce and the Blackledge v. Perry cases.

It seems that by citing those cases and applying the rationale of those cases that the Sixth Circuit seemed to forget that the prosecutor is the natural adversary of the defendant and that the prosecutor has to consider society’s interest in handling criminal cases.

Now, this case, the Hayes’ case is simply not one which should be controlled by the decisions of this court in Pearce and Blackledge.

Petitioner urges that there should be no extension of that prophylactic rule of the Pearce and Blackledge case.

We think that the distinguishment is that in plea negotiation there is some burden constantly existing.

There is some chilling of constitutional rights constantly going on.

That is just part of the plea negotiation at the pretrial stage of a criminal proceeding.

Potter Stewart:

The point is, first, that this Court has explicitly approved the procedure of plea bargaining?

Robert L. Chenoweth:

Of course.

Potter Stewart:

And secondly, that the very concept of plea bargaining like the very concept of any bargaining involves the use of leverage or, if you will, a pressure on both sides?

Robert L. Chenoweth:

Very much so, except that the prosecutor probably has an unequal amount of power at that stage.

He really has more probably at his disposal than a defendant, because a defendant basically only has this.

He has the Fifth Amendment and the Sixth Amendment and he will either exercise those or not.

Potter Stewart:

What the defendant has to offer, first of all, is that there is always a risk from the prosecutor’s point of view of a jury finding him not guilty?

Robert L. Chenoweth:

Sure.

Potter Stewart:

Secondly, there is always the certainty of a not guilty plea of expending the time and resources of the prosecutor and of the court and of the judge, that is what the defendant — those are the tools in his hands, are they not?

Robert L. Chenoweth:

Those are factors of that enter into the very decision of the prosecutor to select, to go forward with some kind of plea negotiation hoping to get a plea arrangement.

As this court has indicated, there certainly is no constitutional right to have plea negotiations entered into.

Potter Stewart:

But that it is perfectly permissible constitutionally, plea bargaining as such?

Robert L. Chenoweth:

Yes, that it is not per se unconstitutional while recognizing, in response to Mr. Justice Marshall, that there are limits.

Potter Stewart:

There can be an abuse?

Robert L. Chenoweth:

Sure, there can be an abuse.

But we are saying that this at a plea negotiation stage the difference between what we are talking of and what the court is talking of, what you are speaking of in the opinions in North Carolina v. Pearce and the Blackledge v. Perry case and the opinions of the court, is that the aspects of the trial of a right of appeal or exercising that nature of right that there should be no chilling effect on that stage.

It should go forward really almost in a vacuum.

If something does enter into it, a presumption would enter in that there has maybe been a vindictive and the mere fear of vindictiveness because that should go forward.

The prosecutor at that stage should be virtually an impartial officer of the court at that time and not have an interest of that, but at the plea negotiation stage, in the very nature of that process, you do have a chilling.

It is already there.

No matter what kind of plea-inducement that may be given, that chilling effect is there.

Whether the defendant wants to partake of that negotiated plea or not, he is going to and if he decides not to irrespective of the plea negotiation, he is going to be faced with the fact that probably if he rejects the recommendations of the prosecutor that he if he goes to trial the likelihood is that he will get a greater sense for having gone to trial than what it would have been had he accepted some kind of arrangement.

John Paul Stevens:

Mr. Attorney General, may I ask a question.

If we assume for a moment that it really does not matter whether the man is indictment on all charges and some are dismissed or he is just indicted on some later, the others are added on if he does not enter into a plea, is there not nevertheless perhaps a different problem that this case indicates and that is this.

If there is a gross disparity between the charge that the prosecutor is willing to abandon whether in advance of negotiation or later and the lesser charge that he really wants to get a conviction on, is there not some risk that a quite remote danger of conviction on a charge that might bring life imprisonment or death or something like that, for the prosecutor to give up that possible result in exchange for a 30-day sentence, would it not inherently make you wonder whether there was not sufficient in terrorem effect that an innocent man might plead guilty to the lighter charge?

Is it not that the problem as the comparison between what one side is going to give up in exchange for what it gets does on the timing of it?

Robert L. Chenoweth:

I believe not because the same possibility is going to exist if the prosecutor in the very beginning indicts on that substantive offense in the non-substantive offense enhancement and says “I am willing to give that up.”

John Paul Stevens:

I agree.

That does not go to the question that you have been arguing as to whether the one has to come ahead of the other in terms of the procedure.

Is there not a potential for prosecutorial abuse in the kind of situation I described and then to go further, what were the alternatives in this case?

One was life sentence as opposed to, what, five years?

Robert L. Chenoweth:

Five years recommended, 2-10 on the substantive charge of going to trial.

So there is that difference, but what I am saying is that the decision of the Sixth Circuit indicates that the point in time is the important critical factor and I am saying that it does not.

John Paul Stevens:

I understand your argument about that.

But you did seem to suggest there are limits to what the prosecutor might do and I am really asking you whether one of those limits is not having charges that are so disparate that an innocent man might be tempted to plead guilty to a very minor charge in order to avoid risk of conviction of a very major charge.

Is that a possible limit?

If not, what limits are there?

Robert L. Chenoweth:

I think there are limits, but I do not think that is one of them because if we are talking about that, which is not an aspect of this case, but certainly an aspect of plea negotiation, we are talking about that possibility of bringing multiple substantive offenses by their sheer number and offering to enter into a plea negotiation for a plea of guilty on only one of those, but that is a possibility the prosecutors have utilized often.

John Paul Stevens:

In answer to Mr. Justice Marshall, I understood you to say it does not matter whether the charges are related or unrelated. That is not the touchdown.

You can follow the same procedure here with totally unrelated events?

Robert L. Chenoweth:

I think unrelated substantive offenses or they may be related, but separate elements substantive offense.

John Paul Stevens:

What, if any, is the limit on their discretion which should guide the prosecutor in this kind of negotiation.

Should we not be concerned about the risk that an innocent man may be induced to plead guilty to a minor charge in this kind of negotiation?

Is that not what we really are concerned about?

Robert L. Chenoweth:

That is the concern of plea negotiation period.

John Paul Stevens:

But is there any limit to the discretion that you are saying?

Robert L. Chenoweth:

Sure.

John Paul Stevens:

Where is it?

Where do we look for it?

Robert L. Chenoweth:

Where do you draw the line?

I cannot say.

In this case, I can certainly say that you do not draw the line between points in times in which you make that.

John Paul Stevens:

I understand that you do not offer any alternatives?

Robert L. Chenoweth:

It is very difficult.

There is such a range of plea negotiation possibilities that we could down to line of those ranges and offer various, what might be considered, limits, but I certainly am not prepared in this case to talk about the full ambit of plea negotiation possibilities and the discretionary power.

John Paul Stevens:

I understand that you do not suggest any limit either.

You just acknowledge there is some limit somewhere but you have no idea of how to identify?

Robert L. Chenoweth:

There is some limit, but there is not a limit in this case with the facts that we are talking about.

John Paul Stevens:

You never had a limit based on the disparity between the charge that he is asked to plead to and the charge you will have to go to trial if he does not plead?

Robert L. Chenoweth:

I will say that.

Potter Stewart:

So far in the cases in this Court, rather than limits the Court has been concerned with assuring that the bargain is kept, is that not correct?

Robert L. Chenoweth:

That is correct, Santobello is the very prime example of that.

Potter Stewart:

Santobello and the case last term?

Robert L. Chenoweth:

Blackledge v. Allison case written by Your Honor.

Potter Stewart:

Yes and the Court, while it may have and probably has talked about the fact that there are some limits, it has not in any way tried to define the meets and bounds of those limits, rather it has been concerned with assuring that the promise be kept, is that not correct?

Robert L. Chenoweth:

As you indicated, Your Honor, in the Allison case is that we are just getting this plea negotiation thing out on the table, so to speak.

We are just starting to look at it and Your Honor says “bring it out” and that you do have to consider, but at this point in time, our guidance from Your Honor on plea bargaining is that if you make promises whether it is one attorney in the Attorney General’s Office or another one in Santobello, keep your promise.

Potter Stewart:

If the bargain is struck, it must be kept?

Robert L. Chenoweth:

That is correct.

Potter Stewart:

I suppose if there is actual coercion, then it is not bargaining anymore.

That is, if there is brutality, compelling a person to plead guilty or trickery or deception, then it is not longer bargaining.

We had a pro curium not so long ago involving that kind of a situation?

Robert L. Chenoweth:

Mr. Chief Justice very much indicated that there was and I think we go back to McCree Brady which Your Honor also wrote, that we talk about that.

Potter Stewart:

But if it is fair bargaining, the Court so far has not defined any limits?

Robert L. Chenoweth:

Fair bargaining, that exactly is what we say. Clearly, here, it is fair bargaining.

It is within the nature of the plea negotiation process.

Potter Stewart:

I suppose the concepts of the Federal Labor Laws are not very helpful, although you have used the same word or I did?

William H. Rehnquist:

Mr. Chenoweth, is it not one of the consequences of a habitual offender statute the fact that the crime which finally brings the person within the terms of, say a four-time offender statute itself may carry a fairly light sentence, whereas the habitual offender statute simply by virtue of the number of crimes may carry a very severe sentence?

Robert L. Chenoweth:

Very definitely so.

While these are arguments for that, the disproportion argument type of argument has been presented in some of the lower federal courts, Heart v. Coroner, that you have really minor felony convictions if you will, I do not know what minor is, but that is an argument that has been presented by defense counsel that to have these minor felony convictions and although you have, say, four of them that then the prosecutor goes forward and indicts on multiple felony offenses irrespective of their weight and then goes forward in the possible punishment if convicted on that last crime, last felony is life in the penitentiary.

William H. Rehnquist:

By virtue of a habitual offender?

Robert L. Chenoweth:

By a virtue of a persistent felony offender, habitual offender type.

Byron R. White:

I suppose that any plea of guilty is subject to collateral attack or a direct appeal on the grounds that it was not voluntary and I suppose another limit is that the defendant should have the adequate counsel?

Robert L. Chenoweth:

Of course, always.

Byron R. White:

And that the negotiation is really with counsel as much as with anybody.

Robert L. Chenoweth:

Well, the American Bar Association standards very definitely say “yes, you have counsel there when you enter into plea negotiations” and I think, yes, that is one of the hallmarks of a prosecutor that he does want to do.

Byron R. White:

Is there a claim in this case, as a matter of fact, the plea was coerced?

Robert L. Chenoweth:

Coerced from the standpoint of the procedure that was used.

Byron R. White:

I know, but it is just a conclusion.

The real point or the real argument is that there should be a per se rule that would might prevent some actual coercion?

Robert L. Chenoweth:

Yes, and again, I had a great deal of trouble with that word “coercion” from the standpoint of the types of procedure that we are dealing with here versus the way I see coercion when we are talking about what Mr. Justice Stewart is discussing and which was discussed in Santobello where you have physical coercion or overbearing mental coercion.

Byron R. White:

Tell me again, perhaps you have already — tell me again why a prosecutor would not say “bring the habitual criminal charge in the first instance?”

Robert L. Chenoweth:

Because if he does that he is doing a vain act, he is really performing a charade.

He is going to the grand jury and he says “I am going to get the habitual indictment in addition to the substantive offense that he is there for in the first place,” but yet because of the nature of the case that I have before me, I find it advantageous for society’s interest that I want to enter into a plea negotiation.

So he goes to the grand jury and he asked to turn it around and move to dismiss that if he is going to go forward on plea negotiation.

Why should he do that?

That is our very point.

Byron R. White:

Well substantively the habitual criminal statute represents rather serious judgment I suppose as to what should happen to a person and if the Court of Appeals thought that if the prosecutor thinks society’s interest demands prosecution for the more serious offense, they ought to put it on the indictment?

Robert L. Chenoweth:

But I think that that is an incorrect conclusion that you make the decision as a prosecutor when you are faced with an enhancement possibility on a substantive offense.

That if you do not indict in the very beginning on the enhancement statute that you had made the decision that the crime is not bad enough, for this is not someone that we have an obligation to society because of the prior felonies.

Here, we had two prior felonies within a 10 or 11-year period of time with five of those years having been in the penitentiary.

That does not preclude the mere fact you do not bring it in the first instance.

It does not preclude the fact that that prosecutor has on his mind that if he cannot enter into a plea negotiation in view of the overwhelming evidence that he should not, in the interest of the society, then indict for the habitual felony offender so that the punishment that the statutes authorize should be placed in case for consideration by a jury.

Thank you, Your Honors.

Warren E. Burger:

Mr. Aprile?

J. Vincent Aprile, II,:

Mr. Chief Justice and may it please the Court.

I would like to initially point out that this case does not require a per se or a prophylactic rule for this respondent to succeed and be entitled to the relief that was awarded to him by the Sixth Circuit Court of Appeals below.

The reason for this is quite clear.

This Court, as far back as North Carolina v. Pearce, in your opinion in Chaffin v. Stynchcombe and also in your opinion in Michigan v. Pane, indicated that this Court has always recognized that actual vindictiveness is a due process violation or can amount to a due process violation, when it is perpetrated by an actor in the criminal justice system.

Potter Stewart:

That is true if it serves to flaw the trial or appellant process?

J. Vincent Aprile, II,:

Yes, Your Honor.

Potter Stewart:

North Carolina against Pearce held that vindictiveness or the threat of vindictiveness would impair the absolute right that was accorded by the state to appeal or to collaterally attack a conviction and thereby impaired and impeded and flawed the appellate process or the collateral attack process.

Here, your adversary tells us that there is no flawing of any right that is given?

J. Vincent Aprile, II,:

Of course, if we look at it in a three-fold analysis we would see first, under the prophylactic rule of North Carolina v. Pearce, the intention is to prevent the apprehension or the fear of some sort of retaliation from stopping or chilling anyone from exercising a constitutional right.

Potter Stewart:

Or a statutory right or appeal?

J. Vincent Aprile, II,:

Or a statutory right or a procedural rule right perhaps, but the point there was that the man had the opportunity to do something that was legitimate.

In the next instance, we have something legitimate done with actual vindictiveness and I believe it was Mr. Justice Powell pointing out in Michigan v. Pane we have always recognized actual vindictiveness, even the doing of something that is permitted with actual vindictiveness would be a due process violation.

In this case, the actual vindictiveness was to say “if you will exercise your constitutional right to a trial before a jury to plead not guilty, to have the right to confront witnesses against you, to be free from self-incrimination, I am going to put a penalty on it and that is the sole reason I am doing it.”

The Sixth Circuit found this in the penultimate paragraph of their opinion when they clearly said “we do not need to infer vindictiveness in this case.

It has been admitted by the prosecutor.”

Potter Stewart:

If that is the case, what you describe always what the upshot of what happens when a plea bargaining is unsuccessful, always.

Then, after, if plea bargaining comes to an impasse, then the defendant pleads not guilty and he goes to trial under the risk of a conviction of a greater offense or of a longer sentence than he would have achieved in the plea bargain.

That is the whole nature of the beast, is it not?

J. Vincent Aprile, II,:

I do not believe so, Your Honor.

I would hearken back to this court’s analysis in Brady v. United States where you described plea bargaining as mutuality of advantage.

And you said that we could not hold it unconstitutional —

Potter Stewart:

Well, that is when a bargain is reached, but when a bargain is not reached, what you describe is always the result.

If the defendant pleads not guilty and he gets to trial under the risk of getting worst and longer sentence in a more serious conviction than he would have plead guilty to if the bargain had been negotiated.

That is always the result, is it not?

J. Vincent Aprile, II,:

I do not believe that it is always the result of the same magnitude and that is the difference in this case.

Let me give you this example.

In the case at bar, the initial bargaining positions that the defendant was in when he stood charged with the uttering a forged instrument indictment, unenhanced was that he faced if he pled not guilty, he faced a maximum sentence of 10 years.

That was the anti for exercising his constitutional rights.

Those were the table stakes.

Potter Stewart:

He was told in the process of the bargaining, what the result would be?

J. Vincent Aprile, II,:

No, Your Honor.

Initially, what I am saying is when the indictment came down, this was what he faced if he exercised this constitutional rights.

Then, the prosecutor came to him and tendered to him the following offer: plead guilty, I will recommend to the judge a five-year sentence, no guarantee.

The defendant then said —

Potter Stewart:

And did the prosecutor not further say if you do not plead guilty, what is going to happen?

J. Vincent Aprile, II,:

No, Your Honor, not to that point.

When from the record we see that when the arrangement offered by the prosecutor was rejected, he then threatened that if you do not accept my plea bargain and plead guilty, I am going to increase the stakes against you.

I am going to re-indict you as a habitual criminal with two prior felonies and if we can convict you of that there will be a mandatory life sentence.

Now, I submit to you the distinction is very different because when he places the threat on him after he has attempted to exercise his constitutional right, the only purpose for the threat is to deter the exercise of the constitutional rights.

In the situation that the Sixth Circuit posited was put your cards on the table, tell the man what the charges are.

What is the maximum punishment he faces?

If he refuses to negotiate with you he still faces that maximum punishment.

William H. Rehnquist:

Well, if we uphold the Sixth Circuit here, every prosecutor faced with the situation as this one, this is going to indict for both the latest substantive offense and a habitual offense and the defendants are not going to be better off?

J. Vincent Aprile, II,:

Your Honor, I would —

Harry A. Blackmun:

This is also my question.

Are you not in effect, if you prevail, forcing precautionary overcharging, to use the phrase, one that you use in your briefs, and therefore, if you prevail are you not actually winning nothing or in other words, does the case not amount to very little?

J. Vincent Aprile, II,:

Your Honor, the first point I would make is to refer back to the footnote in Brady v. the United States where I believe this Court gave it at least the implicit recognition that you would find guilty pleas coerced if the charging power of the prosecutor was abused by overcharging when evidence did not support it.

So I think —

William H. Rehnquist:

But here, just a minute.

The habitual offender charge here certainly could not be rationally found to be overcharging?

J. Vincent Aprile, II,:

Your Honor, that was not the response that I gave.

The response was to the initial problem of overcharging that justice was pointing to.

I agree.

I am not saying this was overcharging.

But I think it begs reality to submit that the prosecutor cannot indict, which is the normal practice in Kentucky by the way to indict on both the substantive offense and the habitual offender offense, now we call it.

William H. Rehnquist:

I am sure he can.

Why should a constitutional principle turn on whether he chooses to indict on both offenses first and then give up the bigger one at the conclusion of a plea bargain or indict only on the substantive offense first and then if the plea bargain fails, indict on the larger one?

J. Vincent Aprile, II,:

Because Your Honor, it is clear to people who are caught up in the criminal justice system that Paul Lewis Hayes and people in his situation when they exercise their constitutional rights to plead not guilty and turn down a plea bargain offer are punished for it and it would not appear that way Your Honor, if it was clear to people that this was the initial maximum punishment that a person faced. I believe this Court recognized that very real problem in North Carolina v. Pearce and Blackledge v. Perry when you said apprehension of this type —

William H. Rehnquist:

Well, that is strictly a question of appearances?

J. Vincent Aprile, II,:

It was not to Paul Lewis Hayes, but it would be to many people within the criminal justice system.

Byron R. White:

Do you think your client knew what he faced under the law from his attorney?

J. Vincent Aprile, II,:

Your Honor, that is a very interesting point that you make.

The actual record in this case reveals that Mr. Hayes’ trial attorney, I was not his trial attorney, did not make this objection, but at the beginning of the habitual portion of the trial, Paul Lewis Hayes personally approached the judge and said “I object to the way that I had been indicted as habitual offender because it was done solely because I refused to plead guilty to the forgery charge.”

The defense attorney did not even recognize the issue apparently.

Byron R. White:

Some of our cases say that certainly the adequacy of counsel issue survives pleas of guilty.

Are you suggesting that the counsel was inadequate in this case?

J. Vincent Aprile, II,:

Your Honor, there is no plea of guilty in this case.

Paul Lewis Hayes went ahead.

Byron R. White:

Do you think there was adequate counsel in this case here?

J. Vincent Aprile, II,:

Your Honor, since the issue was clearly preserved in the State Courts and raised on this particular issue, yes, I do not think that the adequacy of the counsel is the problem.

I think that quite clearly the issue of vindictiveness was raised.

Byron R. White:

If counsel is adequate, he can advise his client what kind of penalties he faces for his conduct.

He probably knows more about it or he should know more about it than the prosecutor.

He probably knows more about what the defendant did than the prosecutor?

J. Vincent Aprile, II,:

Your Honor, I would submit that the Sixth Circuit was correct when they stated that when a prosecutor with knowledge of the facts of the crime seeks and obtains an indictment on a charge less severe than the facts warrant, he makes a discretionary determination that that is the appropriate charge.

So he did this in this case.

Potter Stewart:

Could I ask you if in Kentucky that plea bargaining goes on prior to indictment?

J. Vincent Aprile, II,:

No, Your Honor, plea bargaining does not go on prior to indictment.

Potter Stewart:

Never?

J. Vincent Aprile, II,:

Not to my knowledge.

Potter Stewart:

I am quite sure it does some places.

J. Vincent Aprile, II,:

I would say this, Your Honor.

I am a public defender and with clients that I represent, it does not go on prior to indictment.

There are some sort of white collar crimes in Kentucky, possibly are political type crimes, where that type of situation may occur. But having had ample opportunity to survey the criminal justice system in both urban and rural areas of our state, I would say, no, plea bargaining does not occur prior to indictment in our state.

Potter Stewart:

I would suppose that if in those places where it does, if we we affirm the Sixth Circuit, no one could afford a plea bargain until after the grand jury met and the indictments came down?

J. Vincent Aprile, II,:

Your Honor, I think that the reality in this situation is that in Brady v. United States, as I recall you writing that opinion pointed out that it would be unconstitutional to hold that prosecutors could not extend as benefits concessions, dismissed counts and to allow pleas to lower lesser included offenses of the charged offense.

I thought it was important that you emphasize the charged offense.

In this case, we are not talking about concessions relating to a charged offense.

This man was told “if you do not negotiate, we will up the ante against you.”

Potter Stewart:

Well, now that is important, Mr. Aprile.

It seems to me it may be a subtle difference, but it strikes me that it might be a dispositive one.

You have stated this case so far as though there were plea bargaining within the original charge, as indeed there was, but that that was the extent of the plea bargaining on the count of uttering the forged check and offered by the prosecutor to recommend a five-year sentence.

After that plea bargaining failed then, without any further opportunity for the defendant, the prosecutor went on his own hook and got the grand jury to indict under the habitual criminal statute with no further opportunity for the defendant to bargain and thereby the prosecutor penalized the defendant’s constitutional right to plead not guilty.

Now, that would be one case, it seems to me, but if, on the other hand, the other case would be if the chronology were that there was bargaining under the original charge and the defendant said “no, I think I might plead not guilty,” then the prosecutor said “Well, if you do that, I am going to go to the grand jury and get them to indict under the habitual criminal statute under which you can get five imprisonment.”

Then, if there were an opportunity for additional bargaining that would be quite a different case, it seems to me.

The difference may seem like a subtle one, but it might be because the second case is a different case from the one you have presented to us, it seems to me?

J. Vincent Aprile, II,:

To a certain degree —

Potter Stewart:

Now, what did happen in this case?

J. Vincent Aprile, II,:

In this case, the initial bargain did not involve any charge.

The initial bargain presented by the prosecutor related only to the charged offense, as best we can tell from the record.

Potter Stewart:

I understand that.

That was the initial negotiation.

John Paul Stevens:

But that is not what the Court of Appeals opinion says?

J. Vincent Aprile, II,:

Yes, Your Honor.

John Paul Stevens:

It says that during this conference the prosecutor offered to recommend the five-year sentence if Hayes would plead guilty, petitioner was warned that if he did not plead guilty he will be charged under the habitual criminal statute?

J. Vincent Aprile, II,:

The actual statement of the prosecutor in the record is that “is it not a fact that I told you if you did not intend to save the court the inconvenience and necessity of a trial and taking up this time that I intended to return to the grand jury and ask them to indict you based upon these prior felony convictions?”

Page 49 and 50 of the Appendix in context reveals it was after the initial bargain was tendered to the individual.

Potter Stewart:

Does that imply that there was still an opportunity for the defendant to plead guilty and get a recommendation of the prosecutor of five years or was it too late?

Was this a vindictive punishment to him for turning down the original bargain?

J. Vincent Aprile, II,:

I am sure.

Potter Stewart:

Those are two different cases?

J. Vincent Aprile, II,:

You are right, Your Honor and I say this.

I do not believe that can be dispositive in the case.

I see the distinction that you are calling.

Potter Stewart:

When can it happen is my question?

J. Vincent Aprile, II,:

I am telling the Court, it is my understanding that the man was threatened after he turned down the original offer would be re-indicted as a habitual criminal and I am sure that had Mr. Hayes wanted to plead not guilty he would not have re-indicted him, but that was trying to make the threat work.

Potter Stewart:

You do not mean if he wanted to plead not guilty?

J. Vincent Aprile, II,:

I mean, if he wanted to plead guilty, excuse me, he would have not —

Potter Stewart:

And accept the bargain of a recommendation of a five-year sentence?

J. Vincent Aprile, II,:

Certainly, because that is threat, that is what he wanted to accomplish by the threat.

Potter Stewart:

My question is, factually, was there still an opportunity?

Was that still a continuation of the bargaining or was it a punishment of the defendant for his failure to reach an agreement?

Now, which was it?

J. Vincent Aprile, II,:

I would say that it was a punishment and a threat of punishment that could have been ameliorated by accepting the original bargain.

Potter Stewart:

That was still open to him?

J. Vincent Aprile, II,:

I can speculate to that, yes, Your Honor.

Potter Stewart:

Up here we do not generally have a dispute of facts.

We take the facts as they are and try to apply the law?

J. Vincent Aprile, II,:

Well, because Paul Lewis Hayes did not say “alright, let me plead guilty” the prosecutor never answered that question.

But he said “if you do not plead guilty,” so I imagine that he was willing at that point to say “yes, I will let you go with the five years under the uttering of forge instrument,” but I cannot say for sure.

Potter Stewart:

That is a different case than the one you presented?

J. Vincent Aprile, II,:

But I think the key point is that the intention was to make the threat work and if the threat worked by getting the man to plead guilty to the original charge, then he accomplished it and it was a penalty if the man continued to exercise his constitutional right.

So I do not think the distinction is dispositive in the case.

Potter Stewart:

What you just stated is always just describing plea bargaining generally?

J. Vincent Aprile, II,:

Well, Your honor, if I would just use the criteria that this court utilized in North Carolina v. Pearce and some of the other cases dealing with vindictiveness, you have always looked at these four major factors.

They are knowledge by the participant in the system, the actor, does he have knowledge of the prior penalty?

In this case, the prosecutor clearly knew what the original maximum authorized punishment was in the case, 10 years.

John Paul Stevens:

Mr. Aprile, let me interrupt there.

If we focus on actual vindictiveness as I guess is the standard you would suggest, what if you had this situation?

That a prosecutor presents to the grand jury a charge of uttering an $88-forged check and a second count habitual criminal charge which bears a life sentence.

At the time he does so, he has no intention whatsoever of going to trial on the second charge.

He presents the charge to the grand jury solely for the purpose of having a bargaining ticket which he can use to coerce the defendant into pleading guilty to the $88-charge.

Could one not call that actual vindictiveness?

J. Vincent Aprile, II,:

Your Honor as this Court has recognized in many occasions, actual vindictiveness is normally very difficult to prove.

It would be difficult to prove his motive.

John Paul Stevens:

But could you not make a strong argument for the proposition that that would be actual vindictiveness?

J. Vincent Aprile, II,:

Yes, Your Honor, but again, it would be very difficult to prove.

I think that the point there is that if it was not overcharging —

John Paul Stevens:

It is overcharging in the sense that the prosecutor has no interest whatsoever in getting a conviction on the second charge.

John Paul Stevens:

He brings it purely for the purpose of enhancing his bargaining power on the $88-charge?

J. Vincent Aprile, II,:

But he can legitimately bring it, and therefore, what he does is he gives away a valid concession for his goal to get a guilty plea.

In this case, what we are saying is he already made an election that there was no interest of the state served by that habitual criminal statute indictment.

John Paul Stevens:

Well, the same interest is served in both cases.

The purpose of the second count is simply to induce a guilty plea on the first count.

I do not know why it can be right in one context and wrong in the other.

It seems to me it is either wrong in both or wrong in neither?

J. Vincent Aprile, II,:

Because the timing and the nature of the threat in the case is aimed at one thing and that is chilling the exercise of the constitutional right to plead not guilty and I think that if we look —

John Paul Stevens:

Well, my case chills the constitutional right too.

He has the same variables to work with because I do not think that — say instead of being a habitual criminal, let us say it is murder.

One is murder and the other one is an $88-check.

Is that “I really do not think they can convict me of murder, but my gosh, if they do, it is pretty darn serious.

I better plead guilty to the $88-charge, I do not take any chances.”

Do you say that is different depending on whether he is indicted ahead of time or merely told in the plea bargain that this is a consequence that might ensue?

J. Vincent Aprile, II,:

You are getting inside the prosecutor’s mind, Your Honor.

John Paul Stevens:

I have made the assumption.

It is always for the purpose of getting the plea of guilty to the lesser charge.

That is why he does it, is it not?

J. Vincent Aprile, II,:

I understand that, but in one instance it was the original intention to prosecute the person under both charges at least —

John Paul Stevens:

In both cases, the intention is if you will plead guilty to the lesser charge, we will not prosecute on the other.

If he does not plead guilty, we will shoot the works and get him for whatever we can?

J. Vincent Aprile, II,:

But there has been no attempt at that point by the defendant to exercise any right, and therefore, there is no retaliation that takes place for the exercise of the right to plead not guilty.

If plea bargaining is legitimate and of course we do not challenge that, it is clear under your opinion in Brady v. United States, it is based on concessions being made under existing charges and it is based on mutuality of advantage.

I submit to you that that is a different situation from where a prosecutor initially makes a determination that this is a proper charge and when he cannot get the absolute agreement, word for word that he wants from the defendant then he turns around and says “I will seek higher and greater charges against you.”

This is what the Sixth Circuit was afraid of.

Warren E. Burger:

So what you are saying is that any inducement automatically becomes virtually a threat and a vindictive action?

J. Vincent Aprile, II,:

No, Your Honor, I certainly would not say that and I am sorry if I have misrepresented my position that way.

Warren E. Burger:

No, I think misrepresentation is not the word.

That is the way I take your argument?

J. Vincent Aprile, II,:

No, Your Honor.

Warren E. Burger:

What it ends up to is that when inducements are offered, if they are rejected, they are converted into threats?

J. Vincent Aprile, II,:

No, Your Honor.

I think that it would not be realistic to look at what occurred in this case outside of the situation and say, well, what if they had charged it originally, because that is a different situation.

In this case, the prosecutor by his own admission wanted to penalize Paul Lewis Hayes for not pleading guilty, for not saving the court time, for not saving his prosecutorial resources, for not giving him the certainty of a guilty plea.

It was not an attempt to bargain to work something out.

It was if he will not do it my way then I insist that I will punish you in another way.

Warren E. Burger:

Is that not true of every other plea bargain and it fails?

J. Vincent Aprile, II,:

No, Your Honor.

I think that the example given by the petitioner in this case is a very good example.

He says what if there is an original felony charge and it is offered by the prosecutor to amend it to a misdemeanor and the defendant turns it down and then the prosecutor says “Well, I am going to go ahead and seek the maximum punishment under that felony count.”

The defendant’s bargaining position has not been changed by exercising his constitutional right.

Before they even had any negotiations, he faced the exact same maximum punishment.

There is no upping the ante for exercising his right, but in the real situation in the case at bar, Paul Lewis Hayes thought that when he rejected the prosecutor’s plea bargain offer of five years that the most he would face was 10 years.

Then, the prosecutor said “no.”

Harry A. Blackmun:

Then I come back to where I started.

If you prevail, you are going to have every case with a full fledged indictment from here on in so that you gain really nothing.

You have a phyrric victory in future cases?

J. Vincent Aprile, II,:

I do not understand why it is a phyrric victory, Your Honor.

The way that I —

Harry A. Blackmun:

Because every prosecutor is going to indict all of your defendants on a habitual criminal charge?

J. Vincent Aprile, II,:

Well Your Honor as I understand the scenario that would follow if this court reversed and took the other position, then every prosecutor will not have to indict on a higher charge or an enhanced charge and he will still be able to threaten the same thing.

So I do not see how my client or any other clients in the criminal justice system suffer under you affirming the decision of the Sixth Circuit because every prosecutor can threaten without even having the indictment.

Harry A. Blackmun:

They are not only going to threaten, they are going to indict from here on in.

That is the only way that they can protect themselves.

What do you gain?

J. Vincent Aprile, II,:

But the position you are taking in this case would be that it would not make any difference whether he is indicted or not and that possibility of the re-indictment will always exist and will always be a valid type of leverage for the prosecutor to use.

So my client and other clients in the criminal justice system have lost nothing.

They are still in a difficult position, but what I submit to you is if you uphold the decision of the Sixth Circuit what we do is we finalize that here is an existing indictment, this is the maximum authorized punishment.

Harry A. Blackmun:

Therefore, why leave it as an initial indictment?

Why not bring a broader one at the start?

Harry A. Blackmun:

It takes your case completely out from under you.

Thurgood Marshall:

Mr. Aprile, you keep saying re-indictment?

J. Vincent Aprile, II,:

Yes, Your Honor.

Thurgood Marshall:

My brother Blackmun is not talking about a re-indictment, he is talking about original indictment?

J. Vincent Aprile, II,:

I understand that, Your Honor.

I just thought I was trying to make that distinction.

Thurgood Marshall:

Let me put it separately.

In this particular county where this man was convicted, do you have any doubt that the prosecutor in that one is going to over indict?

J. Vincent Aprile, II,:

It has been four years.

He is not there any longer.

So it is very difficult for me to say.

Thurgood Marshall:

I assume he will read the opinion of this Court?

J. Vincent Aprile, II,:

It is very obvious that they will charge, as most of them do in our state, they will go ahead and charge the habitual offender statute and it will be legitimate in that situation to offer concessions under that.

My point though, and I hearken back to this time and time again, is there is no doubt in this case that the prosecutor acted because he wanted to chill Paul Lewis Hayes from exercising those constitutional rights.

I do not believe that that is what this Court was talking about in Brady v. United States when you said that a prosecutor can, at every step of the criminal justice stage, encourage pleas of guilty. This is not encouraging a plea of guilty.

This is threatening to penalize someone for pleading not guilty.

I think we must recognize that in this case and in this type of situation the prosecutor has the ammunition because he has that threat of re-indictment that he can always hold over the defendant’s head.

Recently, in June of this year, the Supreme Court of Montana not having to pay any allegiance to the decision of the Sixth Circuit Court of Appeals in their Supreme Court recognized the validity of this reasoning in their situation instead under both federal and state law in State v. Sather that they would follow this procedure.

They thought it was a violation of due process to do otherwise.

I submit that it is clear that prosecutors who will utilize leverage like this are doing it for only one purpose and that is —

Potter Stewart:

What case is that, the Montana case in your brief?

J. Vincent Aprile, II,:

It is not cited in the brief, Your Honor.

Potter Stewart:

Do you have a citation?

J. Vincent Aprile, II,:

Yes, I do.

The citation is 564 Pacific 2nd 1306.

Potter Stewart:

Thank you.

J. Vincent Aprile, II,:

1977.

Potter Stewart:

1306?

J. Vincent Aprile, II,:

Yes, Your Honor, 564 Pacific 2nd.

Potter Stewart:

Some states have abolished plea bargaining all together?

J. Vincent Aprile, II,:

That is true, Your Honor.

Of course, although the petitioner has stated at all levels that that is what we are trying to do, we are not challenging the constitutionality of plea bargaining.

This Court has recognized it seems to me, in your many cases dealing with plea bargaining, two things, fairness and proper administration and certainly there is no concept of ultimate fairness involved here.

The prosecutor makes a determination that one charge is sufficient, when he cannot get his way.

In this case, there was no give and take.

It was five years.

Are you willing to take five years between two and ten and that is only a sentence recommendation in Kentucky.

There is not even a right in Kentucky to withdraw your plea if the judge does not follow the prosecutor’s recommendation.

So he was asking Paul Lewis Hayes to give up all of his constitutional rights for a possibility of still gaining absolutely no sentence reduction.

Then when he did not accomplish that, he said “I will go higher.

I will raise the stakes against you until I put you in a position that you are going to plead guilty” although he misunderstood Paul Lewis Hayes.

Byron R. White:

Would that still be here if the prosecutor says what he said here then gets the broader indictment after the defendant does not plead and then bargaining resumes?

J. Vincent Aprile, II,:

Obviously, there is a real question raised as to whether or not, in view of your trilogy, Brady, McMann, and that, if you inject the defense attorney’s aid and assistance into that bargaining under that situation then he enters a guilty plea, it may very well be that whatever coercion exists there could be cut off in a guilty plea.

Byron R. White:

Even though originally he had only a narrow indictment and he said “if you do not plead to his one I am going to get a broader one?”

J. Vincent Aprile, II,:

As I stated in my brief, I believe that there is a distinct possibility that under McCree Brady v. United States where you noted that cognizable claim would be generated by a threat of additional prosecutions, that indeed it may very well be that in this circumstance you would have a coerced guilty plea.

Byron R. White:

Well, if this situation had resulted in a guilty plea, the claim of coercion would still have been open?

J. Vincent Aprile, II,:

It would still be open, Your Honor.

That is true and a counsel may or may not have been sufficient to cut that coercion off.

Warren E. Burger:

In one district recently a study showed that there were great many cases where additional crimes were committed while the defendant was released on his own recognizance.

Six different charges ultimately had accumulated by the time they came to trial on the first one.

Would all that you have been saying apply equally to subsequent crimes committed repeatedly after the defendant was released on bail?

J. Vincent Aprile, II,:

No, Your Honor.

Warren E. Burger:

Why not?

The charge is still there.

J. Vincent Aprile, II,:

I think the Sixth Circuit addressed this quite clearly and perhaps it has been a mistake on my part to not point this out, but always, the prosecutor is allowed, as under your decisions in Blackledge and North Carolina v. Pearce to demonstrate changes that account for why he did not obtain the original indictment.

In the case you have given me, the hypothetical, he would not have been able to originally indict on those charges.

Warren E. Burger:

He might have been able to get the indictments on the other charges before they reach the point of plea negotiations?

J. Vincent Aprile, II,:

That would be perfectly acceptable because the original indictment could not have anticipated the subsequent conduct like your U.S. v. Paige analogy in North Carolina v. Pearce.

The one point I would make ultimately is that in Brady v. United States, Mr. Justice White, you stated.

Byron R. White:

The Court did?

J. Vincent Aprile, II,:

I am sorry, that is correct.

The statement was, in Brady, we find no threats being made between the time the man initially pled not guilty and he changed his plea to guilty, no threats being made to him in a face-to-face confrontation with the authorities.

Byron R. White:

Could I ask you if you would have a different position if there had never been any bargaining confrontations between the prosecutor and the defendant?

Simply, initially, there was an indictment.

No plea of guilty was forthcoming.

The prosecutor added a count.

He broadened the indictment.

No plea of guilty was forthcoming, and he kept broadening it.

Then they went to trial.

Would you be here then or not?

J. Vincent Aprile, II,:

Yes, Your Honor, because of what we asked for in a way of the prophylactic rule where the Sixth Circuit recognized that there would be an apprehension generated in —

Byron R. White:

So the face-to-face confrontation and the oral threat as you call it, really is not determinative in the case?

J. Vincent Aprile, II,:

Yes Your Honor, it is determinative in two ways.

I say that if we did not have the face-to-face threat stated here, we would not have actual vindictiveness and we would only be able to succeed on our relief under the prophylactic rule.

But I say we have actual vindictiveness so even without the prophylactic rule we can succeed.

Warren E. Burger:

Thank you, Gentlemen.

The case is submitted.