Caritativo v. California

PETITIONER:Caritativo
RESPONDENT:California
LOCATION:Hazlehurst Manufacturing Company

DOCKET NO.: 561
DECIDED BY: Warren Court (1957-1958)
LOWER COURT:

CITATION: 357 US 549 (1958)
ARGUED: May 21, 1958
DECIDED: Jun 30, 1958

Facts of the case

Question

Audio Transcription for Oral Argument – May 21, 1958 in Caritativo v. California

Earl Warren:

Number 562, William Francis Rupp, Petitioner, versus Fred R. Dickson, Warden.

Mr. Zirpoli.

A. J. Zirpoli:

Mr. Chief Justice, may it please the Court.

In the case of William Francis Rupp, certiorari was granted by this Court to review the denial of the Supreme Court of the State of California of a petition filed by Laura (Inaudible), the sister of the prisoner in condemned role in which she alleges and set forth — sets forth that there is good reason to believe that a defendant now under death sentence is insane.

And she proceeded in her petition to set forth factual allegations supporting this conclusion.

The warden had denied — had refused to call the question of the sanity of the condemned prisoner to the attention of the District Attorney in the manner required by Section 3701 of the Penal Code of California.

Now, before reviewing the facts in the law pertinent to the instant case with the kind indulgence of this Honorable Court, I should like first to direct some preliminary observations to a question asked by Justice Felix Frankfurter, in order that thereby, we may clarify and focus as sharply as possible our attention on the specific issue before the Court at this time.

Justice Frankfurter, if I — if I recall his question correctly, stated, “Does this record permit me to say I don’t now have to decide constitutionality of this statute?”

I respectfully submit at the outset that the petitioner does not now necessarily question the constitutionality of Section 3701 of the Penal Code of California.

Hence, I would say in response to the question of Justice Frankfurter that it is not now necessary for this Court to pass upon the constitutionality of Section 3701 as a statute.

I say it does — it is — does not now necessarily have to question the authority or the propriety of having the warden make the determination of the sanity of the condemned prisoner.

The petitioner in this case does not question why did the California Court did summarily deny a petition for writ of habeas corpus where the facts alleged merely show a suggested insanity.

The words used in both the Noble’s case and in the case of Solesbee versus Balkcom.

However, the petitioner in this case does insist that the California courts have the power to entertain judicial process when the facts alleged show a clear abuse of authority on the part of the warden.

This power closed from the Due Process Clause of the Fourteenth Amendment of the Constitution.

The absolute refusal of the Court to exercise the power results in a denial of due process and because of these observations on the question propounded by Justice Felix Frankfurter, I respectfully submit that the question as suggested on page 1 of the brief by the respondent which reads, “Is the California procedure, which provides no judicial review of a warden’s determination of a condemned prisoner sanity constitutional?”

This question in my opinion is not the proper question for this case, and while I set forth two suggested questions in — in my brief and in the petition of writ of certiorari, I must confess that on further consideration of this case, the questions should be even more pointed and become even more precise — precise.

And that the basic question here is, “Does the refusal of the California courts to grant a review of the Warden’s ex parte determination of the sanity of a prisoner under sentence of execution, constitute a denial of due process when there is good reason to believe that the prisoner is insane.”

Felix Frankfurter:

Are you suggesting —

A. J. Zirpoli:

Yes, Your Honor?

Felix Frankfurter:

Are you suggesting Mooney-Holohan?

A. J. Zirpoli:

No, Your Honor, not in the slightest.

No.

Felix Frankfurter:

Well, I don’t mean — I don’t mean the perjury part.

Are you suggesting a disposition similar to that of the nature which was made by this Court in Mooney against Holohan, namely a finding that the denial of any opportunity or review would constitute a violation of Due Process Clause, but that this Court is not prepared to say there wouldn’t be some relief in the California courts?

Is that what you’re suggesting?

A. J. Zirpoli:

No, I might — I might —

Felix Frankfurter:

Well then, will you please state, just sketch the order that you want this Court to make.

A. J. Zirpoli:

The order that I —

Felix Frankfurter:

In this case.

A. J. Zirpoli:

The order that I would like to have this Court make is this.

That we have before us a petition which sets forth facts 14 paragraphs at least, showing that there is good reason to believe that the prisoner is insane, that there has been no traverse filed in the Court below or any efforts or a pleading or many kind or character.

That because of that circumstance, we must accept as truth every allegation contained in the petition.

And considering the petition and the allegations thereof, we find that it can — in all propriety, he said that there is good quality brief — belief that this prisoner is insane.

And when we say there is good cause to believe that this prisoner is insane, we say good — good cause as it must and necessity be interpreted by law and not necessarily by the judgment of a single man because he is —

Felix Frankfurter:

But your Supreme Court has already said that whether or not this was not the same or it is — it’s not a matter for judicial determination or for determination in any other way or by any other tribunal except the warden of the prison.

Isn’t that what your Supreme Court has said?

A. J. Zirpoli:

Well, this Supreme Court — I — I can’t —

Felix Frankfurter:

I mean that that’s not what the — Isn’t that what —

A. J. Zirpoli:

The Supreme Court of California.

Felix Frankfurter:

Yes.

A. J. Zirpoli:

Oh, yes.

Well, I thought Your Honor was saying —

Felix Frankfurter:

No, no, no.

That —

A. J. Zirpoli:

— that this Court here had said that.

No.

That’s correct, Your Honor.

Felix Frankfurter:

Well, then what was —

William O. Douglas:

You say that’s unconstitutional.

Felix Frankfurter:

I don’t see what you should do.

A. J. Zirpoli:

This —

William O. Douglas:

You say that’s unconstitutional.

A. J. Zirpoli:

I say that that — I say that is on the Constitution and the refusal of the Court under those circumstances to review the case is what brings about the unconstitutionality.

This is the statute that’s unconstitutional.

Felix Frankfurter:

Yes, but —

A. J. Zirpoli:

It isn’t the procedure —

Felix Frankfurter:

— but the statute — your Supreme Court says, “The law of California bars us from going into this matter and the law of California in barring us is not unconstitutional.”

A. J. Zirpoli:

Yes, but the facts —

Felix Frankfurter:

So how can I escape the passing on the unconstitutionality of the statute as construed by the Supreme Court of California?

A. J. Zirpoli:

Well, I — I would like very much for Your Honor to —

Felix Frankfurter:

Well —

A. J. Zirpoli:

— to have passed upon the statute as construed by the State of California, but I don’t think in — in full fairness to my man that we have necessarily to require this Court to go that far.

I say this that when the Supreme Court of the State of California says that it’s not unconstitutional, to deny to give him a review.

The Supreme Court of California is for the moment setting aside the Fourteenth Amendment.

It is for the moment saying that there has been a suspension.

Felix Frankfurter:

Well then, setting it aside, it’s construing the California statute.

It has construed it to allow no — it’s — it is construing it to hold to require that the warden has not only the last say, but the only say.

And it is further that any — that that is not a violation before this amendment.

A. J. Zirpoli:

Yes, and I say that the Supreme —

Felix Frankfurter:

Because if it was, the Supreme Court of California wouldn’t sustain it.

A. J. Zirpoli:

That’s right.

And I say that the Supreme Court of California is wrong when it doesn’t put the qualification provided he does not act arbitrary.

In other words, there is a limit to — to his right.

Felix Frankfurter:

But that’s just what they’d held unless I can read English.

A. J. Zirpoli:

That he has —

Felix Frankfurter:

They’d said we can’t cancel this.

What the warden has done no matter what the basis for his judgment is.

That is one of those things that is not susceptible of being reviewed beyond the conflicts of the warden.

A. J. Zirpoli:

Well, I say —

Felix Frankfurter:

Is that what they have said?

A. J. Zirpoli:

Well that — that may be what they said and that’s why we’re here.

And because I had before (Voice Overlap) —

Felix Frankfurter:

I’m — I’m not quarreling with your being here.

I’m — I’m confused by the offer you made to me but I I don’t have to pass on the constitutionality of the statute.

A. J. Zirpoli:

Well I — I still —

Felix Frankfurter:

I’d like — yes, and you haven’t yet done it

A. J. Zirpoli:

Well yes, Your Honor.

I still respectfully submit and I recognize that I have not done in at all.

I still respectfully submit, despite the inadequacy in which I am expressing.

Felix Frankfurter:

It isn’t —

A. J. Zirpoli:

That this —

Felix Frankfurter:

— failure words on your part.

A. J. Zirpoli:

Well, it is.

I still don’t believe that this Court has to pass upon the constitutionality of the statute as such.

There can be violation of due process in the application of the law as well as in the wording of the statute itself.

Felix Frankfurter:

Well, yes and — or the statute as applied.

A. J. Zirpoli:

That’s right.

Felix Frankfurter:

It is unconstitutional.

A. J. Zirpoli:

As applied in this case, it is.

Felix Frankfurter:

We are not dealing with abstractions here.

A. J. Zirpoli:

Well, I — I —

Felix Frankfurter:

The Supreme Court of California construed the statute, validated it and implying they had validated it on the Fourteenth Amendment, is that right?

A. J. Zirpoli:

Yes.

Felix Frankfurter:

And therefore, one must reach the validity or the correctness of that determination which means reaching the constitutionality of the statute as sustained by the Supreme Court of California.

A. J. Zirpoli:

Well, that is correct.

But when we look at the concurring opinion and you look at the dissenting opinion of Justice Carter, you’ll find it in the concurring opinion.

Justice Shaw said, “I do not however concur in any possible implication that an insane person may be executed or the right of writ of habeas corpus may be suspended or denied absolutely.”

Felix Frankfurter:

Yes, but he didn’t write the opinion of the Court, and it is his fair little incumbent to find out what he says.

A. J. Zirpoli:

That is correct, Your Honor.

But he expresses the opposite view and the view in the sense that I am expressing on this appeal.

Now, I might — continuing with the — with a presentation with relation to the case that Your Honors just heard and this case.

And that is that there are certain differences between the Caritativo case and this case, which I should like to direct the Court’s attention towards to avoid the danger of a rationale that would — that the decision which might be rendered in the Caritativo case would necessarily be conclusive on the Ruff case.

And the difference is, I respectfully submit are three in number.

The first difference is the difference with relation to the petitions themselves.

In the Caritativo petition, there are two paragraphs which are in effect conclusions of law if they relate to the question of the sanity — claimed sanity of the prisoner.

Whereas in the Rupp case, there are 14 paragraphs relating to the claimed insanity of the prisoner which show a history of mental and physical disorder of the condemned man from the day of his birth to and including his incarceration and condemned row.

And I do not propose to go into all of those facts except to quote if I might from this including paragraph of the — of a medical doctor, William F. Gray, who served on the staff at San Quentin who had seen Rupp at the time of his admission to the prison and who had visited him over a period of two — two years in his rounds of the prison.

And he said, “I found William Rupp to be a deeply withdrawn child-like personality who mentally might be best be termed a low-grade moron.”

I do not believe that William Rupp has the mental capacity to understand the nature and quality of his crime or his punishment.

A. J. Zirpoli:

The second difference is the fact that in the Caritativo case, there was an affidavit on file from the warden which was tantamount to a return to order to show cause.

In this case, there is no such affidavit on file.

There is no traverse of any kind for character.

And again, I repeat, we are bound by the phraseology and the words contained in the petition itself and the truth of which must be accepted under these circumstances if I correctly interpret the prior decisions of this Court.

Earl Warren:

Mr. Zirpoli, did he plead not guilty by reason of insanity as well as not guilty?

A. J. Zirpoli:

He had a trial in which he pleaded not guilty and not guilty by reason of insanity.

Both cases were tried before the same jury.

The question of the denial of due process in the trial itself had been raised in previous petitions and decided adversely by the Appellate Court and certiorari denied by this Court.

The question of his present insanity was raised for the first time in this petition for writ of habeas corpus.

I should say it was raised for the first time in a petition for writ of mandate which the Court denied.

And in this petition for writ of habeas corpus when it became apparent that mandamus would not lie with accordance with the decisions of the Supreme Court of California in Caratativo versus Teets.

William O. Douglas:

That — that the allegation — allegations were not restricted to things that have developed since —

A. J. Zirpoli:

There — but there — but there are — there history from the time of trial up to and including his —

William O. Douglas:

Apparently, most of this went to majority, isn’t of the trial?

A. J. Zirpoli:

The more — the substantial part of this went to a jury at the trial.

That is correct.

That is everything that’s contained in the petition and where the historical review of the physical and mental history of the condemned man, went into the trial.

This and the events which pertained to the subsequent history of the man of course were not in the trial.

Earl Warren:

Was there any question raised, there’s a disability to stand trial?

A. J. Zirpoli:

Actually, stand trial itself?

Earl Warren:

Yes.

A. J. Zirpoli:

Not that I recall from the record.

The — the case had been tried in Orange County.

The basic question which was raised to know or what they — they attempted to raise — there was no question of forces to the guilt and this old question was the mental capacity of the defendant to formulate the requisite intent on the charge of murder in the first degree while attempting to commit rape.

And the entire proceeding revolved on the question of whether or not certain evidence offered on the part of the defense was admissible.

And that was — had been a contention made that because this was his sole defense and because of the complete limitations thereof, he had been denied due process in the trial itself.

All of those questions have been decided adversely to the petitioner and I, of course respectfully submit, are not now before this Court.

And the basic question before this Court is, “Do the facts in my opinion show — show that this man — that there is good reason to believe that he is presently insane?”

If the facts show that there is good reason to believe that he is presently insane?

“Was the action of the warden arbitrary, and if the action — and if those two facts are established in the fear from the petition, does due process require that there shall be a judicial review of such finding of the warden?”

A. J. Zirpoli:

I respectfully submit —

(Inaudible)

A. J. Zirpoli:

Oh, no.

I do not necessarily submit on a — on judicial review but at some form of review that would at least enable the full assertion of the claim of the insane person.

Charles E. Whittaker:

Is that being added for the warden?

A. J. Zirpoli:

It — it could be, had before the warden and the point that I’m making is that no such opportunity was given this man before the warden.

As the petitioner request, certain requests were made of the warden and they were denied.

And there is no showing in the form of a traverse or a response in order to show cause in this case on the part of the warden and in order to show — cause issue as there have been a showing there on.

And of to subsequently developed then to the satisfaction of the Court that there wasn’t adequate opportunity to present evidence to show the present insanity of the — of the — the defendant serving this sentence and awaiting execution, then it might be said that there’s a basis for the findings of the warden that he does not find that there is — there is reason, a good cause — good reason to believe.

If I might state, the statute doesn’t say that the warden shall find good reason.

Of course, I recognize he’s the one who must do it but the statute says that there is good reason to believe and the warden must call it to the attention of the — of the District Attorney.

Charles E. Whittaker:

What if you’re wrong with the (Inaudible) to say if the warden must then certify and refer to General that the person is — is —

A. J. Zirpoli:

His opinion insane.

That’s right.

Charles E. Whittaker:

So, I know it’s not right to see but if you would analyze it if this is all done.

It really does make — advances good reason to believe, dependent upon the opinion, does it not of the warden?

A. J. Zirpoli:

Yes, it does make a defendant upon the opinion of the warden but let’s assume that — that a warden acts for the moment, and I’ll take the actual extreme — extreme that there isn’t the slightest doubt in the world.

Let’s say everyone but the warden that this man is insane.

And let’s say that the warden then were to insist on his position.

The Supreme Court of California says, “Well, it’s unfortunate that that is the fact and it’s unfortunate that this man is insane and it’s unfortunate we must prove it.

Unfortunate but we must proceed with the execution of a known insane man.”

We’re bound by that on that interpretation of the statute unless it’s unconstitutional.

So, the base —

A. J. Zirpoli:

You’re bound by it unless it’s unconstitutional, I will agree, yes.

The basic question in this case, although you put it differently is identical with the other cases.

A. J. Zirpoli:

It’s identical with — on the basic law, yes.

Yes.

A. J. Zirpoli:

But except for one thing if I may be permitted to say so and the reason I pinpointed that out is that — if — if a petition fails to state facts sufficient on its face to warrant the granting of relief, of course the Court can deny it for that reason and I didn’t want if some — with such reason where (Inaudible) in the other case.

I didn’t want that reason be necessarily to find over and — and encompass William Francis Rupp.

Felix Frankfurter:

What do you —

A. J. Zirpoli:

That —

Felix Frankfurter:

That implies but you just wanted to exclude the possibility that we will read the other petitions and saying, “Although I’m insane man, I take this California statute regarding Constitution.”

Of course we would state that.

A. J. Zirpoli:

Well, I’m not — I’m not trying to —

Felix Frankfurter:

But it must get down to that.

A. J. Zirpoli:

Yes, I know.

I’m not trying to make that assumption Your Honor.

I just — I want to make sure that —

Felix Frankfurter:

You don’t want it.

A. J. Zirpoli:

I’m not laxing in my presentation of the case of this man.

Now, there are — there are two basic arguments that the Attorney General has made and I might pull directly from his brief.

He says, the granting of reprieves for the reason that a condemned inmate has become insane is a matter of grace and not a requirement of due process.

Now, while there may be some historical basis for the argument that there were is some relationship between executive clemency and the power to retrieve.

The fact remains that historically and throughout the civilized world and as best as I can determine in every state of the union, the execution of — of an insane person is deemed contrary to all humanitarian and moral principles and violates the universal sense of justice.

And in California, in recognition, you might say, this basic and — and basic principle of universal justice, in the California recognition of it, we have two statutes.

We have Section 1367 of the Penal Code which says a person cannot be tried sentence or punished for a public offense while he’s insane and as a further — and in further implementation thereof, we find 3701 directs to warden when there is good reason to believe that the person is insane to call it to the attention of the District Attorney.

Now, this statutory provision is not a matter of grace, but it’s a codification in the sense of the basic precept of justice to which I have previously referred.

If the conduct violates due process, it can’t be a matter of grace.

Section 371 would conform — would conform the due process when the award max within the discretion granted to him.

But when he disobeys the law, he completely refuses to adhere to the direction, a mandatory direction to use the language used by this Court in the filed case when he refuses to adhere to such mandatory direction that he shall call the prisoner to the attention of the District Attorney, then such refusal on the part of the Court constitutes a denial of due process and that is of complete failure to protect the prisoner who’s about to be executed.

The District Attorney goes on and says, “Due process at most requires that the power to grant a reprieve to a condemned inmate who has become insane if he reposed in some officer tribunal.”

He then says, “Due process does not require a jury trial or other adverse — adversary hearing to the determination of the question.

Now, I would be prepared to concede both of those statements in their general sense.

I think that the power can repose in some officer or tribunal.

I do not think that it’s necessary that there be a jury trial or adversary proceeding in that sense.”

And then he says, “The procedure used in California affords due process.”

Now, if the last call, the procedure used in California affords due process, if by that, he means the procedure proscribed by Section 3701, if followed, provides due process of law, then again, I would be in the Court ruling.

But the point we make, the procedure proscribed by Section 3701 was not followed in this case.

And hence, there was a denial of due process.

Earl Warren:

Wherein did he not follow this proscription?

A. J. Zirpoli:

Well, he did.

I don’t mean it in the sense that he didn’t physically follow.

I mean it in the sense that there was — there were facts to show a good reason to believe that he’s insane, and such facts being in existence and being indirectly or not indirectly be — being called to his attention as we had indicated that we have requested him to certify this case to the District Attorney.

Such fact is being called to his attention.

In that degree, there is a failure on his part to follow the mandate and directive, and there is the good reason.

Charles E. Whittaker:

(Inaudible) as the tradition (Inaudible) admitted as it — as by a demurrer would affect it, do you?

A. J. Zirpoli:

That’s right.

Charles E. Whittaker:

Whereas the statute and — that the California (Inaudible) say that the matter, he was not subject to judicial review at all.

A. J. Zirpoli:

In that respect, I say they are wrong when they say it’s not subject to review at all regardless of the nature of proceedings that you may file and regardless of the — of the facts which you may allege.

When the California Court goes that far, then I say the California Court —

Felix Frankfurter:

Not regardless of the fact you assert but that the place in — as it did whether the facts or what they asserted is with warden and nowhere else.

A. J. Zirpoli:

The place is — yes, but if there is no opportunity —

Felix Frankfurter:

These aren’t — these aren’t mathematically incontestable so-called factual issue.

They’re all matters of judgment of — between — what the statute says is that the warden shall be the exclusive determiner of these — more or less, as we sit back.

Is that right?

A. J. Zirpoli:

They are — they are, but —

Felix Frankfurter:

Well, is that fact (Voice Overlap) —

A. J. Zirpoli:

— as a matter of degree.

Felix Frankfurter:

— even Justice Harlan put.

A. J. Zirpoli:

But even though they are a manner of degree, that does not preclude the possibility to the warden’s conduct may be so beyond the degree of the normal concept of society that he may proceed even to that degree.

I don’t —

Felix Frankfurter:

What you’re saying is that there are reasons for not depositing such ex parte authority in the warden.

That’s what you’re saying.

A. J. Zirpoli:

Yes.

I —

Felix Frankfurter:

And corroborate language, that’s what you say aren’t you?

A. J. Zirpoli:

Their reasons for not depositing it to that ultimate in the warden, yes.

Felix Frankfurter:

And that was at the (Voice Overlap) —

A. J. Zirpoli:

To that ultimate degree.

Felix Frankfurter:

That’s what this is about.

Hugo L. Black:

Do you say that under Due — Due Process Clause, forbid him to make a final — make a final decision.

A. J. Zirpoli:

I say the Due Process —

Hugo L. Black:

(Inaudible)

A. J. Zirpoli:

— Clause is — permits him and I would like to say and I still would like to insist that it doesn’t have to permit him to arbitrarily make it.

Hugo L. Black:

Well —

A. J. Zirpoli:

I — I would like to definitely insist —

Hugo L. Black:

Would you say that it doesn’t permit him to say — say the last words before it have to pass when they pass it.

A. J. Zirpoli:

Yes.

In other words, may I — may I read what would be the conclusion —

Earl Warren:

Or is that — is that your position that at all of events, the courts must pass upon this and that the warden cannot have the last word.

A. J. Zirpoli:

In view of the observations made, I take that position now, definitely.

And I take the further position that they have to pass upon him when his conduct becomes arbitrarily — arbitrary.

And I want to make — to read one paragraph from Solesbee versus Balkcom if I may.

The Court and practically, the concluding paragraph says, “There is no indication that either the Governor or the positions who acted on petitioner’s application violated the humanitarian policy of Georgia against the execution of the insane.”

We hold that the Georgia statute has applied, it’s not a denial of due process.

And I hold that 3701 as applied in this case is a denial of due — due process because there are facts alleged, uncontradicted facts alleged which would give reason to believe that this man is insane, and therefore, he is about to violate the humanitarian policy of California against the execution of the insane.

Felix Frankfurter:

But a little earlier, you’ve indicated that you’re not urging judicial review and regular adversary court proceeding.

I thought you said that they —

A. J. Zirpoli:

Well, I’ve heard it frankly, Your Honor.

I still — into a sense, I — I still in the sense don’t think that this Court in this case have to go quite that far.

And I — and I — and I’m trying to present the avenues to this Court so that the Court will consider the factual situation as disclosed by the petition itself.

Felix Frankfurter:

Yes, but the point is not the factual situation to their factual situation but that the protection of the interest that you’re here to protect, the human interest, do not have — do not require judicial protection.

I understood your statement a little while ago.

You said that you don’t mean that you have to have a regular A against — Jones against the Commonwealth of the State of California.

A. J. Zirpoli:

No, I can’t go there.

Felix Frankfurter:

But it doesn’t require a jury or a judge.

It may all began — it was some other tribunal.

A. J. Zirpoli:

Well, I can’t go quite that far because if I were to say it doesn’t require judicial — judicial protection, I wouldn’t be here at all.

I couldn’t be here because I’m here seeking the judicial protection which I feel it requires.

Felix Frankfurter:

Well, you mean all judicial protection of this Court in saying it can’t be done by the warden all by himself in the secrecy — secrecy of his own conscientious judgment?

A. J. Zirpoli:

Yes, that I say and —

Felix Frankfurter:

All right.

I understand that.

A. J. Zirpoli:

That’s right.

I still say —

Felix Frankfurter:

As to that, you don’t have to say it must be done before Judge (Inaudible)

A. J. Zirpoli:

No, I say but it cannot be done by the judge in his own secrecy.

In other words, he cannot set himself —

Felix Frankfurter:

But must it be done by a judge?

A. J. Zirpoli:

Well, I don’t think necessary it has to be done by a judge.

Felix Frankfurter:

Well, that helps.

A. J. Zirpoli:

If — if the elements of fairness are presented, if an opportunity to present the adverse claim is presented, there you have all the elements of fairness which might not make it all necessary through a judge.

Felix Frankfurter:

Then you have fairness before — before a warden or before the state court of parole or whatever you’ve got out of fairness.

A. J. Zirpoli:

Yes, you do.

Felix Frankfurter:

You don’t need judicial protection necessarily.

And so you may need judicial protection to get fairness to the appropriate instrument.

A. J. Zirpoli:

That’s right.

Hugo L. Black:

Who would determine whether it was fair, whether the warden is doing fairly?

A. J. Zirpoli:

The Court would determine if the facts presented on a petition for writ of habeas corpus are such to show that it should entertain jurisdiction and determine.

I shall conclude my observations, Your Honor.

Thank you.

Earl Warren:

Yes.

Mr. Smith.

Arlo E. Smith:

Your Honors, it’s been suggested by petitioner’s counsel that — asked the question that this case is not properly before this Court.

It appears to me that the law of California is clear and unequivocal that there is no judicial review of the warden’s determination of an inmate’s insanity.

That he and he alone makes the determination as to demand sanity of the type of execution.

Charles E. Whittaker:

(Inaudible)

Arlo E. Smith:

— with the exception —

Charles E. Whittaker:

(Inaudible) determinations makes or is not (Inaudible)

Arlo E. Smith:

Well, the statute is framed in terms of whether or not he has reason to believe, good cause to believe.

Charles E. Whittaker:

If he does then —

Arlo E. Smith:

If he does —

Charles E. Whittaker:

(Inaudible)

Arlo E. Smith:

He has a due —

Charles E. Whittaker:

And so if he does, there’s nothing (Inaudible) that he is not (Inaudible) and for a good reason to believe.

Arlo E. Smith:

That — that’s correct, You’re Honor.

He does not act.

There is a presumption that he has no reason, no good cause to believe that the man is insane.

As argued —

William J. Brennan, Jr.:

(Inaudible)

Arlo E. Smith:

What?

William J. Brennan, Jr.:

(Inaudible)

Arlo E. Smith:

That is not reviewable.

That’s correct.

William J. Brennan, Jr.:

Reviewable, rebuttable, however you put it.

Whether he acts on much or little on hearing, on personal inquiry or no inquiry at all, if he does nothing and doesn’t proceed further with a — as a statute permits as I understand it, doesn’t it?

Some kind of proceeding he may then again.

That’s the end of it?

Arlo E. Smith:

That — that is correct.

William J. Brennan, Jr.:

And no one may look into what he’s done or how it happened?

Arlo E. Smith:

No, that is not correct.

William J. Brennan, Jr.:

Well now, what’s that?

Arlo E. Smith:

As I have pointed out, Your Honor, the real sense is a review here.

The power to grant a reprieve is granted to the Governor of California under Article VII.

And in a sense, there is a review, if petitioner’s counsel or petitioner is unsatisfied with the warden’s determination, he may always proceed to the Governor to seek a reprieve.

Charles E. Whittaker:

(Inaudible) ex parte ends without any kind of adversary hearings.

Arlo E. Smith:

That is correct, without any type of adversary hearing.

Earl Warren:

Well, what — what —

Tom C. Clark:

Wardens action was arbitrary, well, on what sense?Or an inaction of the Governor?

Arlo E. Smith:

Assuming that he’s inaction was arbitrary, the — the review would be in a sense my appeal to the Government.

Arlo E. Smith:

But of course, would — we cannot assume that a — executive officer will act arbitrarily and that a judicial officer will not act arbitrarily.

Tom C. Clark:

Be acting without — the statute would not if he’s acting arbitrarily.

Arlo E. Smith:

He would be acting — the — that’s correct.

If he acted arbitrarily, he would not be following the statute.

Tom C. Clark:

You said (Inaudible) under your statute.

Arlo E. Smith:

I do not.

I believe that the California decisions are clear that there is no review, that even no judicial review, even though there is an allegation that the warden has acted or his inaction is arbitrary.

William J. Brennan, Jr.:

Well, let’s go further.

Even if it could be established that his inaction were arbitrary, stubborn, obsolete or any reason could any Court inquire into it under — as your California —

Arlo E. Smith:

Under California —

William J. Brennan, Jr.:

— Supreme Court has interpreted?

Arlo E. Smith:

They could not.

William J. Brennan, Jr.:

Was not.

Arlo E. Smith:

My interpretation of California law.

Felix Frankfurter:

Do you regard —

Arlo E. Smith:

But — I beg your pardon.

Felix Frankfurter:

Do you regard the non-execution of a person who had some insane after his sentence?

Do you regard the non-execution of an insane person as an act of mercy and grace similar to the commutation of a death sentence to a life sentence?

Arlo E. Smith:

I think, Your Honor that it is related to the power to —

Felix Frankfurter:

I’m not asking you to relate it.

Arlo E. Smith:

— commute the party.

Felix Frankfurter:

It isn’t just like a pardoning power?

Arlo E. Smith:

Yes, I have — I have —

Felix Frankfurter:

Is that the notion?

Arlo E. Smith:

I think, Your Honor that that proposition can be maintained as a — can be maintained as a matter of common law precedence.

Hugo L. Black:

But can you do it in view of the fact that counsel, the State of California has declared it to be the law.

There’s no insane person shall be executed?

Arlo E. Smith:

No.

That — that is true.

California, we do not have a policy of executing insane people.

Hugo L. Black:

Not a question of policy, is it?

Arlo E. Smith:

Or —

Hugo L. Black:

All that it says is —

Arlo E. Smith:

Our law — our statutes provide that a man shall not be executed if he is insane.

Felix Frankfurter:

But whether — but whether the —

Arlo E. Smith:

But the procedure —

Felix Frankfurter:

— a Governor of — but whether a Governor of California shall commute a sentence from death to life, depends on the particular outlook and the particular contentious judgment of the particular occupant at Sacramento on the question of death sentence as against life sentence, does it?

Arlo E. Smith:

That’s correct.

Charles E. Whittaker:

May I —

Arlo E. Smith:

But —

Charles E. Whittaker:

Although it does not involve question of (Inaudible)

Arlo E. Smith:

Well, it might at a question of pardon.

Charles E. Whittaker:

Officers of the Government in such a — an ex parte proceeding, he is (Inaudible)

Arlo E. Smith:

Well — well, our — in California, the — the expressly — not only the power to pardon and commute but also the expressed power to grant a reprieve which is a mere stay or under common law, is a common law term where the condemned person is consult or insane.

But of course, such a proceeding before the Governor would be initiated by petitioner or his counsel who would present to the Governor or his secretary, his version of the facts concerning the man’s insanity.

Felix Frankfurter:

I have known in Eastern — in two Eastern States where the Governor himself initiated such action because of his own views on the case before us.

So that that — you’re in different realm, and you’re in the realm of the pardoning power of Governors and a statutory policy expressing the law of centuries that you don’t execute an insane person.

Arlo E. Smith:

Well, I concede that that is a policy of California, but it doesn’t and it may even be a due process requirement that such a policy exist in a State.

Hugo L. Black:

Well, if it meant —

Arlo E. Smith:

But it does not follow.

Hugo L. Black:

Is it necessary for it to be a due process requirement here that such a policy that you have, a statute which tells everybody in California, “You cannot be executed if you’re insane.”

Arlo E. Smith:

But it does follow from either as a matter of due process or as a matter of state policy that the procedures to determine that man’s sanity are regulated by due process that there is any fixed method or manner of making this determination that it must be a judicial determination, that it must be an adversary hearing.

Charles E. Whittaker:

(Inaudible)

Arlo E. Smith:

There is a procedure in the statute.

The warden has the duty of making that determination.

Felix Frankfurter:

But the man most involved and fatally involved doesn’t get a chance to put his case, well, those on his behalf to put their case by a sister of this man.

Arlo E. Smith:

In any judicial type hearing?

Felix Frankfurter:

I didn’t say judicial, I’m just saying the —

Arlo E. Smith:

That is in a judicial type hearing.

That is correct.

Felix Frankfurter:

I would therefore not to say judicial.

Arlo E. Smith:

Or an administrative type hearing.

Earl Warren:

Mr. Smith, may I ask you?

What — what is the practice in other States?

What it takes in States that are comparable to California and — and tell me what their procedure is there?

Do they — do they operate somewhat similarly to California?

Arlo E. Smith:

Yes, there are — are — there are several States who operate similarly to California and I think that Mr. Justice Frankfurter, in his dissent in the Solesbee versus Balkcom case as set out in great detail, the procedures followed by the various States.

Many States follow the — a procedure similar to California.

Some States have no procedure set up.

How many are they?

Do you know (Inaudible)

Arlo E. Smith:

The number of — and I do not know.

Earl Warren:

Are they many?

Arlo E. Smith:

Yes, there are — there are several.

Earl Warren:

Are there any that have the — a procedure such as that contended for by the petitioners in these cases?

Arlo E. Smith:

There are some which — which provide a judicial determination.

Earl Warren:

What State?

Arlo E. Smith:

I do not recall of any.

Earl Warren:

Are they in your briefs?

Arlo E. Smith:

No, they are not.

They’re in — they’re all set out in — in the dissent in the Solesbee versus Balkcom case.

Hugo L. Black:

Suppose instead of having some — suppose instead of having separate statutes which says that in order for an insane person to be executed in your definition of murder, you define the murder and says, “This shall not apply to any insane person.”

Then, you would consider to divide the trial of — in two parts.

One, to try the man for murder, the other, to have the warden decide as you do here that he is not sane?

Arlo E. Smith:

I think that that’s a very difficult question to answer and that it —

Hugo L. Black:

Well, I’m just —

Arlo E. Smith:

It is not related to this problem for this reason that we — we are talking there about procedures which go to the validity of the judgment, the judgment of conviction.

We are not talking here about the validity or any procedure which affects the validity of the judgment of conviction which would require a judicial type hearing.

That is as a matter of due process, I think that is clear.

That the insanity at the time of the commission of the crime in an element which would go to the — to the validity of the judgment, must be — the determination must be made in a judicial type hearing.

Arlo E. Smith:

But here, we have an admittedly valid judgment of conviction, a judgment of conviction after a trial on both the issue of guilt and on the issue of sanity.

The jury has determined this man to be sane, to have been sane at the time the crime was committed in all of these facts, but two exceptions were filtered through the jury.

All of these matters were presented to the jury.

The jury determined that William Francis Rupp was sane under the McNaughton test.

Hugo L. Black:

Then the statute steps in and says even though this is the case —

Arlo E. Smith:

Even though —

Hugo L. Black:

— you cannot be executed and carry out this jury verdict if he’s insane.

Arlo E. Smith:

That’s correct.

That’s correct, but we’re not talking about the judgment.

We’re talking about a procedure after the judgment in the nature of — of power to pardon commute a reprieve.

Hugo L. Black:

(Voice Overlap) that the State doesn’t have to provide you the law, many privileges it doesn’t have to afford.

Many safeguards and securities not required by the Due Process Clause to the grant which if it does grant, with be administered in accordance with the rights granted under other laws of the State, cannot be arbitrary —

Arlo E. Smith:

Well — well, that’s —

Hugo L. Black:

— or — if you want to call it their denial.

Arlo E. Smith:

Well, I — I —

Hugo L. Black:

That —

Arlo E. Smith:

That — that’s true as a general proposition, but —

Hugo L. Black:

I’m asking about that because that to me is the important thing in this case.

I — if the State had not passed the statute at that time, it would —

Arlo E. Smith:

Well, yes.

Hugo L. Black:

— certainly then reach the due process.

Arlo E. Smith:

Which brings me to the observation that I was about to make and that is that if this Court follows its prior decision in Solesbee versus Balkcom, the only mistake the California legislature made if it made a mistake and denied due process — the mistake it made in which resulted in the denial of due process was to grant these petitioners a greater right that was necessary under the decision of this Court in Solesbee versus Balkcom.

In other words, the power to grant a reprieve which is a common law of reprieve or purposes where the — where the condemned person is insane is placed by the Constitution in the Governor.

Now, in addition to this, our legislature has added to the Penal Code, Section 37 — 3701 which provides that the warden if he has cause to believe that a man is insane shall certify him to the District Attorney of the county which the prison is for trial on this question.

Now, under the Solesbee case, the legislature had not made such a prohibition but had simply left this power to be exercised by the Governor and to make it identical with Solesbee to have adopted the procedures which are actually utilized by the warden, that is to say reports from his medical and psychiatric stand to be furnished to the Governor, we would have Solesbee versus Balkcom right in point.

So that if California has denied Rupp and Caritativo due process of law, by this procedure, it has denied it them due process only because it has given them a greater right than this Court has held necessary in the decision of Solesbee versus Balkcom.

Felix Frankfurter:

May I suggest what you’re implying is subject to comment, namely that considering the due process is what it is, an appropriate way of protecting certain rights.

Can one say that the kind of reliance that a State or even this Court may rightfully attribute to the action of a Governor, does not necessarily apply in anything like the equal measure to the conduct of a warden?

This is no reflection on wardens —

Arlo E. Smith:

No.

Felix Frankfurter:

— but when you deal with the highest officer of the State, the symbol of its magistrate, then you may say that by virtue of that very office there are protections just as for myself.

There are protections in the home office with its tradition etcetera, etcetera and the system of parliamentary inquiry that may very well and in my opinion does offer an adequate substitute for our due process.

And you can’t say because what we did in — in — and I accept that.

I start from there as though.

Arlo E. Smith:

But —

Felix Frankfurter:

But what we did as to the investing power of the Governor, ergo necessarily imply.

You can do the same thing as to wardens.

Arlo E. Smith:

So, my point is that this power still exists in California, in the Governor.

Felix Frankfurter:

No.

Arlo E. Smith:

In the —

Felix Frankfurter:

Of course, the — the Governor —

Arlo E. Smith:

— expressly by the California Constitution, the power to grant a reprieve is given to the Governor.

Felix Frankfurter:

Well, I’m suggesting to you that this is not a question of a reprieve.

There’s — there’s the flattest question that emphasize.

You have here a granted, a formally granted right which makes all the difference in the world between this situation and individualized intervention of a Governor with all the views that different Governors have in deciding whether a man should go to his death or not.

This is not a matter of grace.

There’s a statute, and the statute based on three or four, in the years of the common law.

Arlo E. Smith:

But —

Earl Warren:

The warden isn’t entirely in the non — a not — autonomous officer in California, is he?

Arlo E. Smith:

No.

He’s appointed by the Governor.

Earl Warren:

Well, he has more than that —

Arlo E. Smith:

And he’s —

Earl Warren:

— as me as awarded a prison terms with paroles that has jurisdiction over the prisoners and all of the — all of the prisons so far as their — their punishment is concerned and then it has a director of — of —

Arlo E. Smith:

Corrections.

Earl Warren:

— corrections over him was responsible for the entire — entire prison system and then he asked the Governor over him and —

Arlo E. Smith:

That — that’s correct.

Earl Warren:

— in any of them or at least the — the Governor and the director would have the right to direct him to do one thing or — or another.

Arlo E. Smith:

Well, certainly, the Governor would have the independent power to grant a reprieve.

Felix Frankfurter:

Who am I to suggest that the Governor of California probably has some other troubles except to oversee everything (Voice Overlap)?

Arlo E. Smith:

Well, I might say that —

Earl Warren:

No, but do you think he doesn’t oversee what the —

Arlo E. Smith:

That he —

Earl Warren:

— warden does.

Arlo E. Smith:

He has —

Earl Warren:

— and we’re not mistaken because it’s very important —

Felix Frankfurter:

Any over that the statute has, the statute.

Earl Warren:

— very important part of his duty.

Arlo E. Smith:

Yes, I point.

Felix Frankfurter:

(Voice Overlap) bases this in the warden and what was suggested is —

Arlo E. Smith:

In addition.

Felix Frankfurter:

— that there are a lot of subsidiary protections to see to it that the warden isn’t an officer.

Arlo E. Smith:

In addition to the fact that the California Constitution places that responsibility with the Governor.

That this is an additional protection offered by the — by the state government of California.

Hugo L. Black:

What — what’s the provision in the Constitution (Voice Overlap) —

Arlo E. Smith:

Article 7.

Felix Frankfurter:

What’s it say?

Hugo L. Black:

That authorizes (Voice Overlap) —

Arlo E. Smith:

It says that the Governor has the power to grant pardons —

Felix Frankfurter:

Of course he has.

Arlo E. Smith:

— commutations and reprieves.

Charles E. Whittaker:

But that’s not a power under this particular statute as Mr. Justice Frankfurter points out, is it?

Arlo E. Smith:

That — that is not the particular power that we’re talking about.

No.

That — that’s correct.

Could I ask you a question —

Arlo E. Smith:

Yes.

— somewhat off to a different line?

Is there any charge in this case that the statute was discriminatorily applied by the warden?

Arlo E. Smith:

Not — to my knowledge, no.

Arlo E. Smith:

There’s never been any allegation of discriminatory application —

As — as against this petition.

Arlo E. Smith:

— except to the implication that it was — that his action here is — is (Voice Overlap) —

Well, but there is no claim here that this man — this prisoner was treated differently by the warden from what other people has been treated in terms of the standards or motive under what —

Arlo E. Smith:

No.

There’s no allegation in terms of equal protection of the law, no.

I might add or finish on this note.

William J. Brennan, Jr.:

Well, if that suggests something.

If there were, well, do you think your California Supreme Court decision would embrace such a charge as also non-reviewable judicially?

Arlo E. Smith:

No, I think that a question of alleged denial of equal protection of the law.

William J. Brennan, Jr.:

Yes.

You have your own equal protection clause.

You have your own state Equal Protection Clause within your topic.

Arlo E. Smith:

Due process.

William J. Brennan, Jr.:

Well, has it been interpreted as the Equal Protection Clause?

Arlo E. Smith:

Yes.

That the — that the wisdom of this Court in both the Noble’s and the Solesbee case in — in this — is contained in its statement that if we are required to provide a judicial type review of these proceedings that an execution will depend upon the ability of a prisoner to draft a petition and present it to the Court for review, that this will become an endless proceeding as indicated by the records in the — in these cases.

In this case, petitioner Rupp was convicted approximately four years.

There are no facts in this petition that were unknown to anyone, at that time.

Yet, the first suggestion of insanity comes four years later.

Felix Frankfurter:

What happened over those four —

Arlo E. Smith:

After —

Felix Frankfurter:

What happened over those four years?

Arlo E. Smith:

Many collateral attacks upon the judgment by the writ of habeas corpus.

William O. Douglas:

I thought it was tried out in the trial?

Arlo E. Smith:

What?

William O. Douglas:

I thought the issue of insanity was presented to the jury?

Arlo E. Smith:

Well, it was.

That’s correct.

Felix Frankfurter:

All I’m suggesting is —

Arlo E. Smith:

They waited —

Felix Frankfurter:

— it went up with the burden of this — from my point of view, our greatest delays in enforcing the criminal law in almost every state of the union on — on the embarrassment that it was caused to have somebody present putting the defendant’s case.

Arlo E. Smith:

The warden of course ultimately is — is the only man who can determine the insanity or sanity at the time of the execution.

Since sanity is a condition and a status which is subject to change.

Any judicial determination is meaningless.

Felix Frankfurter:

The question is the basis —

Arlo E. Smith:

While —

Felix Frankfurter:

— upon which he should make the determination, not whether he should make it.

Arlo E. Smith:

While the judicial body or other tribunal is deliberating his insanity, he may become insane.

The only person who can make the determination and bring that determination up to the time of the — the execution is the warden.

I have one — one point here that (Voice Overlap) the judgment against a statute, 3700 was immediately precedes 3701.

It reads, “There’s no judge of the Court or officer other than the Governor, can suspend the execution of the sentence, judgment of death, except the warden of the state prison whom he is delivered.”

So that — in other words, the statute directly imply that the Governor in his entirety.

Felix Frankfurter:

When was this statute — when did the statute originate?

Arlo E. Smith:

The statute — this one originated in 1872 and preceded it the criminal practice of that in substances back with 1851.

Charles E. Whittaker:

May I ask you (Inaudible)

Earl Warren:

Just go right ahead.

Charles E. Whittaker:

(Inaudible)

Arlo E. Smith:

There’s no judicial review.

That’s on Phyle versus Duffy case.

Phyle versus Duffy puts no problems on the Governor.

Charles E. Whittaker:

(Inaudible)

Arlo E. Smith:

I don’t think so.

I think when you came to the Noble’s case, there’s — or your — your Solesbee case, the only review was the Governor.

The Governor here.

Charles E. Whittaker:

(Inaudible)

Arlo E. Smith:

Yes.

That’s — that’s true and what the Court said, “We have — we cannot reach the constitutional point.”

They just decided the constitutional point.

I don’t believe we can’t reach it because of these other matters.

Arlo E. Smith:

They reached — this Court, I believe, reached it in the Solesbee case.

Hugo L. Black:

(Inaudible)

Arlo E. Smith:

Yes.

I think we reached it.

Earl Warren:

Mr. Zirpoli, you have few moments.

A. J. Zirpoli:

I have few more moments.

Earl Warren:

Yes.

A. J. Zirpoli:

The Attorney General had said in responsible to a question of Justice Brennan, at least if I interpret what he said correctly.

He said that if there had been an assertion of a — of a violation of the equal protections of the law’s clause that the Court could entertain judicial — judicial review.

Well, I just like to say briefly that I cannot see how he can consistently take that position, and at the same time take the position that there can be no judicial review if the question involved stood on another constitutional privilege and that is the privilege of due process.

And there was one other comment that was made and that’s the fact of the four-year delay.

Well, I’m not here by way of apology, but the factor of four-year delay would require a — a detailed statement as to all of the history of this case and it must be remembered that I came to this case four years ago at the appointment of the District Court under circumstances in which the petitioner and the petition previously filed had alleged that there was a violation of due process in the trial court itself.

But there had not been an exhaustion of the state remedies as a consequence of which and because of appeals that the petitioner insisted in taking in which I would not participate, at least as far as certiorari to this Court is concerned.

The case ran through the gauntlet then to determine the fact that he had not exhausted his state remedies.

Thereafter, I did file a petition to the Supreme Court of California for the purpose of determining that question and exhausting the state remedies if it became necessary.

That petition was denied, certiorari was denied.

And then having exhausted my state remedies pursuant to Section 2255 of Title 28, I went into the District Court and raised the question of the due process of law insofar as the trial itself is concerned and that case then went through the usual gauntlet and it was not until that point and until an effort to have the Governor commute the sentence of the prisoner to life imprisonment without possibility of parole that I came into Court and sought to establish the present sanity, the question of the present sanity of the accused.

Because his sanity at the time he committed the offense and that the question of where there’s a denial of due process in the trial itself was a paramount importance because it went to the very innocence or guilt of the accused if he were incapable to formulate the intended — if that were a defense, the denial of which would have constituted due process of law.

Hence, that is the history of this case.

It’s an unfortunate gauntlet that one must go through in these circumstances but it’s unavoidable.

However, regardless of justifiable or lack of justifiable cause, the question is now before this Court.

Felix Frankfurter:

When was this crime — when was the crime committed?

A. J. Zirpoli:

The crime was committed in August of 1952, if my recollection is correct, Your Honor.

Felix Frankfurter:

This year.

Earl Warren:

Mr. Zirpoli —

Hugo L. Black:

How do you distinguish the Solesbeecase?

A. J. Zirpoli:

I beg Your Honors pardon?

Hugo L. Black:

Do you distinguish the Solesbee case (Voice Overlap) —

A. J. Zirpoli:

I distinguish the Solesbee case in this that as applied, the statute is unconstitutional here.

As applied, this Court ruled the — the statute of Georgia was not unconstitutional and that’s the basic distinction between the two.

Earl Warren:

Mr. Zirpoli, I — I didn’t know that the District Court had appointed you in this case, but I — I want to say that the Court appreciates what you have done to represent the — this indigent man where he feel comforted by the facts you would do it and Mr. Linn, we thank you and Mr. Smith —

A. J. Zirpoli:

Thank you, Your Honor.

Earl Warren:

— for your representation of the State.

We’ll adjourn now.