Cash v. Culver

PETITIONER:Cash
RESPONDENT:Culver
LOCATION:Youngstown Sheet and Tube Co.

DOCKET NO.: 91
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 358 US 633 (1959)
ARGUED: Jan 22, 1959
DECIDED: Feb 24, 1959

Facts of the case

Question

Audio Transcription for Oral Argument – January 22, 1959 in Cash v. Culver

Earl Warren:

Number 91, Ray Cash, Petitioner, versus R. O. Culver.

Mr. Langbein.

Irwin L. Langbein:

Langbein, sir.

Earl Warren:

Langbein.

I beg your pardon.

Irwin L. Langbein:

May I present to the Court, Mr. Chief Justice, my adversary in this case, Mr. Edward S. Jaffry of the Florida Bar and Assistant Attorney General of the State of Florida, who is not a member of this bar and I request that if he’d be permitted to be heard pro hac vice.

Earl Warren:

The motion is granted.

He may —

Irwin L. Langbein:

Thank you, sir.

Earl Warren:

— he may be heard.

Irwin L. Langbein:

Thank you, sir.

Earl Warren:

(Inaudible)

Irwin L. Langbein:

May it please the Court.

This is a criminal habeas corpus case.

He comes here on certiorari from the Supreme Court of Florida.

The record below is very short, 20 pages long, consists of the petition for habeas corpus and a three-line order in which the Supreme Court of Florida denied the petition without opinion.

The petitioner is a young man of 24.

He is an inmate of the Florida State Penitentiary.

He is serving a 15-year term out of a possible maximum 20 for burglary.

He contends that his imprisonment is unlawful because his trial took place over his objection without the benefit of the presence of counsel.

That was some four years ago.

He did not appeal, instead some three years later, about a year ago, he brought the instant proceeding originally in the Supreme Court of Florida which has original jurisdiction in these matters and then here.

He had no counsel at any stage until after the grant of certiorari here, when I was appointed to represent him.

His petition alleges that at the time of his trial, he was only 20 years old that he was an uneducated farm boy and that he had never so much has been inside a criminal trial court for him to trial except some 10 weeks before when he had listened to his own previous trial on the same charge.

Then he had been represented by experienced and paid criminal counsel.

That trial resulted in a mistrial, hung jury.

He was then sent to solitary confinement where he remained for the 10 weeks intervening between that trial and the present trial of which he is now complaining.

Charles E. Whittaker:

(Inaudible)

Irwin L. Langbein:

Sir, I wish someone would explain it to me.

I’m reporting the allegations of the petitioner, if it — I’m ashamed to say that it happened sometime in Florida.

Irwin L. Langbein:

This is not the first case that I think House against Mayo have that feature in it, too.

Perhaps there are reasons why, but I don’t know them.

After he’d been there for a period which isn’t entirely certain, either a week before the trial or four days before the trial, there are conflicting allegations in his petition.

He received notice that his first counsel had withdrawn from the case or was going to withdraw from the case either one.

He could do nothing about it, of course, but his mother knew about it and she then immediately set about trying to get him some counsel.The petition recites that she saw, “a number,” unspecified of lawyers, but that they all refused to take the case because the amount of money she could offer as a fee, the amount is unspecified, was insufficient and because the time for preparation was insufficient.

That time was either four days or a week, we don’t know.On trial day, or retrial day, the petitioner explain these facts to the trial judge and asked for a continuance to find, go out and hire a counsel.

Had the trial judge have been priced at the time that the previous counsel had withdrawn from the case?

Irwin L. Langbein:

I’m sure he had.

Is it under your practice too, as a lawyer, under those circumstances have to get permission in the Court?

Irwin L. Langbein:

Yes.

I’m not quite sure that he had gotten permission and that he had shown the Court adequate cause why he should withdraw.

The same trial judge?

Irwin L. Langbein:

The same trial judge.

That appears in the record in a rather shadowy way and I know counsel won’t mind by going outside the record because I detect some flavor of suspicion of — of the — the actions of this attorney, who is a rather eminent fellow at our criminal bar.

He did notify the court that he intended to withdraw.

I think you can detect from the record as I develop the facts later, a very good reason why he should withdraw, although I have not consulted with him.

He happens to be in Asia at that time and I — I don’t know precisely why he withdrew, but he did withdraw a week or five or four days before the trial.

The petitioner reported to the court.

His efforts to obtain or his mother’s efforts to obtain counsel in this very short period, asked for a continuance, the court said no.

There are a lot of witnesses there.

The State had gone to a great expense to get him.

He had to go to trial that day.

Then he asked for appointment of counsel, three counsels refused.

The reason doesn’t appear, but of — of course, we — we know what it was.

It’s perfectly standard in Florida.

No, I won’t say it’s perfectly standard in Florida.

Florida does authorize as this Court had seen a number of cases, Wade against Mayo is the leading one, that there’ll be paid counsel, free only in a capital case and this isn’t a capital case, 20-year maximum sentence to which the boy got 15.

The trial then proceeded.

The petitioner defendant himself, the pattern of the trial was primarily that of an accomplice case.

A fellow named, Allen, Lawrence Allen, who was a codefendant with him, pleaded guilty, turned State’s evidence and testified against him.

Irwin L. Langbein:

And there was corroboration in the form of evidence, that loot from the burglary had turned up in Allen’s possession, so that it was clear from the corroboration that Allen had — had a part in the crime, but in this, I stress, there was nothing in the evidence except the uncorroborated word of Allen that the petitioner had, along with Allen, taken part in the trial, taken in — in the crime.

Let me — let me quote what I think is the crucial sentence from the record page 4.”

There was nothing that would connect Allen and the petitioner except Allen’s word.”

The testimony of Allen was that he and the petitioners and some people had committed the burglary charged.

Now, in what I’ve said.

I’m –S

Potter Stewart:

o what are you quoting from the petition for habeas corpus filed?

Irwin L. Langbein:

Sir?

Potter Stewart:

What were you quoting from just now?

Irwin L. Langbein:

Page 4 of the record which is —

Potter Stewart:

The petition.

Irwin L. Langbein:

From the statement of facts in the petition.

Potter Stewart:

Filed in the Supreme Court?

Irwin L. Langbein:

Filed in the Supreme Court of Florida.

That is his own allegation there in the record below.

Earl Warren:

Mr. Langbein.

Irwin L. Langbein:

Sir?

Earl Warren:

What happened on — what — what was done with it?

Irwin L. Langbein:

His reward was 10 years suspended sentence.

A factor which in the terms of Townsend, Burke, I guess it is, suggests that the absence of counsel may have had something to do with the severity of the sentence because this boy was a first defendant and 15 years appears to one without knowledge of the record as — as a rather brutal sentence under those circumstances on one that’s whether counsel might not have done him some good in pointing out the factors that would ordinarily, I would say, prevent such a very severe sentence.

However, that is not the gravamen of the petition.

I think it’s claim from what I’ve said so far and indeed, it must have been plain some months ago when certiorari was granted that what we’re doing here is appealing to the body of doctrine that’s grown up in this Court’s since Betts against Brady to the effect that in a non-capital case, in a state court, where a man has been deprived of counsel over his objections, over that opportunity to object, here, you object strenuously.

This Court will grant habeas corpus relief if it falls into certain patterns.

One of them is the pattern of inadequate time to obtain counsel.

I don’t propose to review the cases here in terms of how long is long, how high is up, that — that isn’t going to help.

I think most of the cases are — might not concede this shorter times as a more sudden need for a counsel.

I feel here that this particular period of time is, itself, not important, but what is important is the report of the attorneys whom the petitioner’s mother consulted which is in the record that the reason they turned her down was twofold, (1) insufficiency, (2) not enough time to prepare for a trial.

It seems to me that at this stage of the case they petitioned, where the petitioner hasn’t had an opportunity to go into the facts and demonstrate what happened here that where the attorneys, themselves, are reported as saying that they don’t think that this period of a week or four days, whichever it is, is enough, but that’s conclusive, that’s binding.

If that report is made and that is substantiated by the evidence when we come to trial on this, that’s the case, because this is one of the rather rare situations in which the right to counsel, the right to go out and hire your own counsel has been held by this Court to be absolute.

Felix Frankfurter:

Are the affidavits in the — rinted in the record?

Irwin L. Langbein:

These are not affidavits.

This record is — this — this record is in a peculiar form.

What I’m reciting is a newspaper account of the trial.

The petitioner didn’t have the money to go out and print out his record, here.

And what I’m reciting here comes from a newspaper reporter’s account of the trial which is put into the trial record.

I’m sorry, which is put under the habeas corpus record, most of it in the argumentative portion, rather than in the statement of facts.

The petition, itself, has sworn to, of course.

I should add that I think this is a novel procedure.

I’m not a habeas corpus expert.

This is my first and I hope my last habeas corpus case.

I have never run across a case, at least, among the reported cases in which the petitioner relied for part of the support of his petition, upon on newspaper account on what happened.

And I thought the point’s efficiently novel that I made it a third distinct point or question in the brief.

Counsel accommodated me by not contesting the validity of that procedure, that’s not one of the issues as counsel view them.

Felix Frankfurter:

Do I — what I understand what is the main case that the petition drawn by the petitioner himself, indigent convicted person, instead of making allegations in his own name, is incorporated to a newspaper account and — and that what is set forth in that newspaper article — article, it should be taken as though may in his own presence.

And something stands, ready to prove.

Irwin L. Langbein:

Substantially that, sir.

This particular passage, for example, is set forth at the bottom of page 2 and at top of page 3 of the brown printed record.

And you’ll see that it’s a mélange of allegation and quotation and is in that way —

The State — the State does not object as I understand it to signature or are considering newspaper account in circumstances in this case.

Irwin L. Langbein:

That is my understanding of the way the brief is — is set out.

Of course, the State has its own view as to the content and the — and the circumstances, but the — the technique of incorporating newspaper accounts has not been objected to at least in the briefs.

William J. Brennan, Jr.:

Did I understand you to say to Justice Frankfurter that this was prepared by the petitioner, himself?

Irwin L. Langbein:

He alleges that it was prepared by the — by himself.

In another paper filed in this Court, he says he had some help from —

William J. Brennan, Jr.:

Jailhouse lawyers.

Irwin L. Langbein:

From jailhouse lawyers.

Felix Frankfurter:

But — but putting to one side the legal statistics of the contract, it is your position that in order to take this case, as though what is contained in that newspaper article, was narratively set forth as allegations (Voice Overlap) —

Irwin L. Langbein:

Oh, precisely.

Charles E. Whittaker:

Well, isn’t that exactly one has, the courts to be (Inaudible)

Irwin L. Langbein:

That’s right.

Charles E. Whittaker:

— the newspaper articles which (Inaudible)

Irwin L. Langbein:

Let me point out that there’s always a flavor of — is this fellow star crazy?

Felix Frankfurter:

Is he what?

Irwin L. Langbein:

Is he hallucinating?

Is this — can — can this be believed and here’s a man, when he doesn’t have a transcript, brings to bear the — the independent credibility of something in cold public print.

At least, something like this happened, he is saying.

Felix Frankfurter:

But in any event, I think we’ve held not in those terms, but whether allegations or hallucinations or not, is not to be determined merely by this — by the allegations unless they are so extravagant, and so out of this world in a technical demand and narrow sense that’s — that on the face of it, is either observed.

Irwin L. Langbein:

Well, let me suggest perhaps of the reason they did this is, well, I don’t know you.

You can’t tell why I may and under — under that kind of advice does things, but — but I would think it very wise of into — to do that anyhow, no matter what the paper rule is particularly in this Court, a man may want to persuade other people at that — that what he says is — is to be taken with — with a little more respect and if it were some wild yarn that — that he control —

Felix Frankfurter:

But as all events as Mr. Justice Harlan suggested, unless the State properly argue that the — that the State — unless, the State will argue subsequently that no such allegations are to be — are before us, we must assume these are allegations as though they were put by him in his own person, his own language, in narrative form.

Irwin L. Langbein:

Yes, precisely.

Felix Frankfurter:

All right.

Irwin L. Langbein:

Within the general rule, a very loose construction of habeas corpus pleadings.

Now, these allegations also sound aside from the deprivation —

William O. Douglas:

(Voice Overlap) —

Irwin L. Langbein:

— of the right to paid counsel — sir?

William O. Douglas:

Mr. Langbein, but I see on page 12 of the record, a quote from the Gainesville Sun.

Irwin L. Langbein:

Right.

William O. Douglas:

Is that also part of the —

Irwin L. Langbein:

Right.

This is all part of petition.

William O. Douglas:

This is a whole petition?

Irwin L. Langbein:

This is a whole petition.

This record consists of nothing but the petition and the three-line ought to turning it down.

Everything in here is petition.

Now, on the other head of Betts and Brady, I think what I have said indicates some of the standard ground for relief.

At least that brings it within the — the scope of an appeal to them.

Potter Stewart:

Before you leave the point that you — to which you’ve just been pressing yourself, that is the reasons for the failure to get counsel were twofold apparently, according to this allegations, lack of money —

Irwin L. Langbein:

Right.

Potter Stewart:

— and from counsel’s point of view, lack of time —

Irwin L. Langbein:

Right.

Potter Stewart:

— three years to prepare the case.

Isn’t the — isn’t all — doesn’t it also appear that during this period, petitioner, himself, was confined in the solitary confinement, so there was perhaps lack of — lack of opportunity to confer with him or doesn’t that appear?

Irwin L. Langbein:

I don’t think it appears so affirmatively that I — that I want to stress it.

Potter Stewart:

(Voice Overlap) —

Irwin L. Langbein:

I would rather stay on what I considered to be the wholly firm ground.

I think that — I — I think it’s arguable that there would have been some opportunity to confer even in solitary.

Felix Frankfurter:

Mr. Langbein, I haven’t realized until I look at the original paper (Inaudible) that what is printed is what — is the petitioner has filed.

What is the record — the — the brown record is what he filed before your Supreme Court.

And therefore, I’m lead to ask you whether argument and question, number one, and all that discussions doesn’t either, doesn’t prove either (a) that he didn’t prepared it, himself or (b) if he did, that it quite negatives the statement that he didn’t know court procedure how to conduct things.

Irwin L. Langbein:

Well, Your Honor, I don’t — I don’t know whether we should go into the — the impeachment of — of this allegation.

Felix Frankfurter:

I don’t — I don’t mean to impeach it, but it’s difficult for me to [Laughs] — to square an allegation that he does know anything about court procedure and then have a brief that was not do — would not to discredit to many lawyers of his, before this Court, I’m bound to say.

Irwin L. Langbein:

I — I believe that it was one of your cases that suggested, Mr. Justice Frankfurter, that there are a lot of pretty good specialists in habeas corpus law and at the outset I said that although this petition indicates that its pro Section, another paper they filed in this Court.

I think a petition for certiorari indicates that he has had the assistance of — of lawyers and —

Felix Frankfurter:

(Inaudible) that myself has — has defined that rather than — and not — as against concluding that it’s contradiction of claims that he didn’t know what the court keep doing without it.

Irwin L. Langbein:

You — you suggest, Mr. Justice, that — that this, itself, demonstrates that he — that he knew what court procedure is all about?

Felix Frankfurter:

(Inaudible) you’re not in practice.

Irwin L. Langbein:

Well, remember, he had four years under expert guidance.

Potter Stewart:

(Voice Overlap) talking about two different periods of time, aren’t you?

Irwin L. Langbein:

Precisely.

Potter Stewart:

(Voice Overlap) four year?

Irwin L. Langbein:

This is fourth — this is three year — three years later that he – that he filed this illuminating document.

Felix Frankfurter:

(Voice Overlap) you had three years (Inaudible)

Irwin L. Langbein:

I’m — I’m going to go on to another point, Mr. Justice, which — which I had intended to take up a little bit later, but which I think I should take up now, in response to that suggestion which is that this boy was such a bad lawyer that he didn’t know how badly he had been treated in this — in this trial, even after three years and even after the expert advise of the jailhouse faculty of law.

Because you will notice that he makes a statement of facts which is only two pages long and that’s substantially what I’ve recited so far.

And the rest is this — this elaborate legal argument, citing cases and so on, but stuck away in the corners of this legal argument were its ammunition for dud arguments.

Earl Warren:

Ammunition for what?

Irwin L. Langbein:

Dud arguments, useless arguments, arguments that just sputter and don’t explode is what I think is the most devastating thing in this case.

In the cause of an argument which relates to what I think a foolish contention about the wealth of the accomplice witness and his own property, the petitioner says that in the course of the trial the accomplice witness, Allen, testified to other crimes committed not by petitioner, but by petitioner’s brothers — Ray Cash is this petitioner.

He is the baby brother of the family.

Irwin L. Langbein:

And this petition alleges that the family is a notorious criminal gang.

Thus by indirection, not at all in — in the course of what facts he thought was important, occurs this situation.

The witness testifies that members of the petitioner’s family take part in a $180,000 robbery in New Orleans.

And that petitioner wasn’t there.

Certainly, that has nothing to do with this case.

That is a sort of thing that any lawyer of the minimum three years experience that Mr. Justice Frankfurter just mentioned, would have sense enough to get up and howl about to a trial court or get up to an appellate court and have it reversed.

That is, to my mind, the most outrageous thing in this case.

The petitioner alleges in his garbled and backwards way that his brothers are members, indeed ring leaders, of this notorious criminal gang known as the Cash gang.

A matter of common knowledge in Florida, at least, that there is such a gang and yet testimony as to a completely other crime which this man is not suppose to have any part at all is lugged into this case.

To cap it all, the real relevance of that — that what makes it worst than usual is that there is testimony by the same accomplice that one of the people who is alone when they robbed or burglarized rather, the particular store involved in the information, in little college town of Gainesville, Florida was Fred Cash, one of the same is same Cash brothers.

So that, call it what you will (Inaudible) guilt by association that had no business in this trial and that is the prime example —

I know in this Court.

I suppose it’s not —

Irwin L. Langbein:

No, sir.

— stenographic transcript.

Irwin L. Langbein:

The stenographic transcript is available and what we want really is an opportunity on these clumsy allegations to get hold of that transcript and find out what really did happen here.

Has it been transcribed?

Irwin L. Langbein:

No, sir.

It has not been transcribed.

How long was the trial?

Irwin L. Langbein:

The trial took — took two days, I — I believe.

Do you know what his objection and — by your opponent proceeding?

That you know that this man took the stand or —

Irwin L. Langbein:

I don’t know.

Did he cross-examine the witness?

Irwin L. Langbein:

I know that he cross-examined, wait a minute.

I don’t know that he cross-examined the witnesses.

He might — he might have, I — I know that he made objections, I know that he — yes, he must have cross-examined the witnesses.

Do you have to know whether the —

Irwin L. Langbein:

Let me — let me quote in the record — sir?

You have to know whether the evidence at the second trial was substantially the same as the other has presented in the first trial when there was a hung jury and where he had no lawyer.

Irwin L. Langbein:

I — again, I can suspect so which of course is one of the factors the tends to make a second trial complicated.

The kind of a thing you’ll liked it and needed a lawyer for, because everybody who’s ever tried a case knows that the — that you’re trying to present every witness with the dilemma of either you’re a parrot saying what you’ve been told to say in your first trial or you’re a liar and I’m impeaching you because you’re wandering away from what you’ve said.

That — that takes a little technique.

Felix Frankfurter:

(Voice Overlap) in the record.Can you tell us whether a minute of the trial need a first or second or both or neither, or before the State of Florida on this petition?

Irwin L. Langbein:

I can quote, Mr. Jaffry on that that the minutes of the trial were not before the Court, is that correct?

Mr. Jaffry attended the Supreme Court hearing.

I did not.

I didn’t get in the case of that stage.

Felix Frankfurter:

If irrelevant, so that the case is to be taken here on the basis that these people of Florida had (Inaudible) before then we have now before us.

Irwin L. Langbein:

Right.

These slim 20 pages is all that they had before them at that time.

I may say that it’s — that it’s available.

I found that out.

The court reporter is ready to put it out.

I assumed that somebody pushed two or $300 in our hand.

Charles E. Whittaker:

Do I understand your position to be — it is that a man (Inaudible)

Irwin L. Langbein:

I didn’t catch the last part of the question.

Charles E. Whittaker:

I understand your position it is that not that these things may own the true — to be true or false.

What (Inaudible) to a hearing upon his allegations.

Irwin L. Langbein:

That’s it.

This is an —

Charles E. Whittaker:

(Voice Overlap) —

Irwin L. Langbein:

— this an allegation stage.

We want a chance to try this out.

We want this real issue so that this record can be brought up and — and we can — we can see and anybody can see whether — whether this man is talking utter nonsense or not.

Felix Frankfurter:

The State, in effect, demur or formally demur, or what?

Irwin L. Langbein:

I —

Felix Frankfurter:

I don’t mean here.

Irwin L. Langbein:

— I do not find that in the record, sir.

Felix Frankfurter:

Pardon me?

I don’t mean what they do here, but did — did the State formerly or impliedly demur in the old fashioned term or did it do nothing and just leave it to the Supreme Court of Florida.

Irwin L. Langbein:

Apparently, the latter, but there again, I think, Mr. Jaffry can answer that question better than I can, Mr. Justice Frankfurter.

William J. Brennan, Jr.:

Mr. Langbein, when you said that the reporter paid to transcribe the minutes (Inaudible) only in the second trial?

Irwin L. Langbein:

I didn’t ask for about the first trial.

I didn’t think it important at the time.

William J. Brennan, Jr.:

But you don’t know whether the minutes are to you of the first trial were transcribed before the second trial?

Irwin L. Langbein:

I — I’m — I think she would’ve told me if they’ve been available.

William J. Brennan, Jr.:

Then it may (Voice Overlap) —

Irwin L. Langbein:

I presume that in accordance with standard Florida practice, they’re up in a dusty attic somewhere and as — as soon as we — we want them and can pay for them, we’ll get them.

William J. Brennan, Jr.:

In any event, they do not appear to have been available or if available to have been used, the cross-examination of any of the States witnesses on the second trial.

Irwin L. Langbein:

No, no.

We — we have — we have no knowledge of the actual detail of the trial except what happened here.

Let me —

I can’t interrupt you anymore, but I just want to add one question, the second trial before the same judge has tried the (Inaudible) case?

Irwin L. Langbein:

Yes.

What?

Thank you.

Irwin L. Langbein:

And knowing — knowing that small Florida area, there I — I’ve never heard of any judge up there but Judge Patton, at the rather unusual for anybody to go in there in his — in his jurisdiction there.

Let —

(Inaudible)

Irwin L. Langbein:

Not shown.

Not shown, not shown whether he took the stand.

None of these things are shown, but as Mr. Justice Frankfurter has pointed out, we’re dealing here with allegations.

They — all we want is an opportunity to have them, answer them if it should turn out that there are circumstances such as — that he put on elaborate bunch of witnesses, that he did a brilliant cross-examination, you know one of these Walter Mitty stunts, whereby he looked like these lawyers you see on Saturday night on TV, every layman’s dream.

I don’t think it happened here.

Let me — let me quote a bit more on that point from the — from the record.

This is the Gainesville Sun reporter’s impression of this again.

This — it gets back to Justice Harlan’s question.

He says, “While making objections —

Earl Warren:

Where is this?

Irwin L. Langbein:

Page 14 of the record.

Earl Warren:

All right.

Irwin L. Langbein:

“While making objections and inquiring of the judge and witnesses, Cash appeared unsure of himself.

On several occasions he would start a sentence then stop to rephrase it or start on another subject.

Before making objections, Cash raised his hand to attract the attention of the judge and then in a halting manner would make his statement.

Or again — on — on page 14 you find a passage in which the boy was foolish enough to object to the introduction of a revolver which was taken from the store and identified as turning up in — in the possession of — of his accomplice witness.

The most obviously admissible corroborative evidence is that there’d be no excuse for a sensible lawyer to get up and — and object to anything like it — that.

And yet it’s perfectly elementary that the — the best way to prejudice a jury against you is to make silly objections.

Now, this was a complicated trial.

This — as — as his evidence by the fact that this very able, experienced criminal lawyer from Miami, the record doesn’t show that he’s able, that this man of experience had been able to get the boy, at best, a hung jury.

When you couple all of these factors together, together with one more which is perhaps anticlimax, a violation of the State rules of evidence in an important respect, I think we’re — we’re getting a sort of cumulative picture of a — of a rump of, a frolic, rather than of a fair trial.

That episode which I haven’t yet mentioned because I wanted to talk particularly in response to Mr. Justice Frankfurter’s question about this other episode of a completely unfair trial resulting from the introduction of the testimony of find in which the petitioner had no part at all.

That other episode is this, Allen, the coconspirator was permitted to testify that he and the petitioner and these other boys, including his brother, committed not alone this burglary, but one other burglary that they stole a truck and that they had a running gun battle with the police, presumably all in part of the same raid although the timing isn’t — isn’t — doesn’t appear.

Now, there are three other crimes there, one more burglary, a larceny of the truck, resisting arrest.

Now, it’s elementary that other crime testimony is admissible under certain various specific limitations, identity impeachment, planned purpose and so on, but that unless, it is excused because of some particular exceptional rule of law, it is highly dangerous.

It’s hard to — to meet.

It causes confusion of issues as even a little constitutional flavor under the Sixth Amendment, there about knowing the charge against you.

And —

William J. Brennan, Jr.:

(Voice Overlap) as I understand that this testimony not of crimes of which the petitioner is been convicted.

Irwin L. Langbein:

Oh, no —

William J. Brennan, Jr.:

Testimony —

Irwin L. Langbein:

(Voice Overlap) —

William J. Brennan, Jr.:

— that he had participated in some —

Irwin L. Langbein:

Right.

William J. Brennan, Jr.:

Allegedly, participated in some other crimes.

Irwin L. Langbein:

Right.

Another — his first — through the First Amendment, Mr. Justice Brennan.

William J. Brennan, Jr.:

Yes.

Earl Warren:

Mr. Langbein, do you happen to know if that same character or testimony was introduced on the first trial?

Irwin L. Langbein:

I do not.

Earl Warren:

Or whether he was surprised by this, the second?

Irwin L. Langbein:

I do not.

I have no knowledge.

Earl Warren:

Yes.

Irwin L. Langbein:

That is a sort of thing that might be matter of defense —

Earl Warren:

Yes.

Irwin L. Langbein:

— to be — to be brought up when we get the full record here that we’re trying to get and find out about.

Now, there was this testimony of three, four — of the three other crimes.

There is a rule of law in Florida, in the area of accomplice testimony, Florida, of course, is afraid of accomplice testimony just — just like most states are.

It’s hedged about with various restrictions because it’s — it’s so dangerous.

And one of the rules of law that we have in Florida, although we allow conviction on the uncorroborated testimony of accomplices, which about half the States don’t, one of our restrictive rules of law in this area is that we impose a special restriction on the use of other crime testimony in an accomplice case.

That is to say, you take these two dangerous elements, other crime testimony which is permissible under certain circumstances.

You take this other dangerous element of accomplice testimony which is permissible under certain circumstances, put them together they explode, you have error.

The Supreme Court of Florida held in a case just about three years before this case came to trial.

A parallel case of a burglary and testimony by the accomplice as to a — a general raid, other burglaries, in fact even a car theft, the Supreme Court of Florida held that that testimony, although it might be admissible in an ordinary case within these exceptions of the other crime rule was not admissible in this accomplice case because it was nothing but the testimony of the accomplice that connected the petitioner with this crime.

There is that special limitation of Florida law and — and a very wise one.

Now, I — I don’t take the position that — that every violation of a state court rule of evidence is — is an unfair trial.

But I do take the position that this is a significant violation of a state court rule of evidence designed to obtain a fair trial.

And that this is the sort of thing that a lawyer could have stopped or they couldn’t have stopped it there, he could have stopped it in the Supreme Court of Florida on appeal, because there is this case peculiarly, opposite which says that.

Now, one of the issues that we have in this case is the issue of whether this Supreme Court of Florida case says just that.

Counsel has questions —

Potter Stewart:

Before you proceed to that (Inaudible) let me know this, does the — there is no appeal in this case.

Irwin L. Langbein:

No, sir.

Potter Stewart:

Does your Supreme Court allow appeals and phone conferences?

Irwin L. Langbein:

Oh, yes.

Potter Stewart:

It does.

Felix Frankfurter:

As a matter of course?

Irwin L. Langbein:

Oh, yes.

Felix Frankfurter:

Is there a —

Irwin L. Langbein:

Excuse me.

I’m — I’m guessing a little, but I — would amaze me, if I were wrong.

Felix Frankfurter:

Is there a part of law that if you (Inaudible) and its purpose will be entertained?

Irwin L. Langbein:

Yes.

There’s no doubt about that.

Felix Frankfurter:

That you can’t — what?

Irwin L. Langbein:

That in a — that in a right to counsel case.

Felix Frankfurter:

Yes.

You must take an appeal and can subsequently rated by (Voice Overlap) —

Irwin L. Langbein:

Oh, no.

No.

In a right it’s the other way around and right to counsel case, you don’t have to take an appeal.

Felix Frankfurter:

All right.

Irwin L. Langbein:

The same as here.

In fact, if — if it weren’t, the — the law that was laid down here in cases like Palmer and Ashe would govern, where were you deprived of counsel, where your allegation is that you were deprived of counsel, you’re not suppose to be lawyer enough to know — to know that you have a right to appeal.

And you can come in much, much later than this in a habeas corpus.

That — that — I thought this Court had settled it.

Felix Frankfurter:

The state court of the State (Inaudible) is a matter of common knowledge, so anybody can go up to the court of — in the Supreme Court in forma pauperis?

And if he doesn’t, then he has later (Inaudible) habeas corpus.

Have we said to be unconstitutional, that prevents a due process?

Irwin L. Langbein:

I —

Felix Frankfurter:

(Voice Overlap) but I —

Irwin L. Langbein:

— I would say this, that you said so many things broader than that, that this one would amaze me.

Felix Frankfurter:

What?

Irwin L. Langbein:

I would say that in this area, this Court has said so many things in favor of petitioners that are broader than that.

That you can go up after — after years and under all sorts of circumstances that introducing that —

Felix Frankfurter:

(Voice Overlap) that you never said that.

Irwin L. Langbein:

That new wrinkle wouldn’t — wouldn’t —

Felix Frankfurter:

(Voice Overlap) I don’t think we’ve ever said the case cites the — the specific case.

If this State has the most uncertain possibilities to have an appeal automatically without any different questions raised — without any other questions raised, question in whether a State can say that is such a matter of common knowledge that if you don’t go up on appeal directly, you can’t give that which brings habeas corpus that is primarily being held at that day, where not in a lot of system of procedure for a state and nevertheless, you may raise independently in a matter of —

(Voice Overlap) —

Felix Frankfurter:

— who’s right.

That would surprise you?

Irwin L. Langbein:

I didn’t think so that you had held precisely that I was talking of the analogous cases, but a while ago, I said, I hope this is my last habeas corpus case, I like that — that one.

But it’s true in an event isn’t it, that the State does not suggest that this — this judgment that we’re reviewing, rests on an independent state (Voice Overlap) —

Felix Frankfurter:

Well, either —

Irwin L. Langbein:

No, there has — may — may I say this.

That at this stage of the case —

Felix Frankfurter:

All right, that’s a good answer.

Irwin L. Langbein:

— there has been no suggestion at all of — of adequate state ground.Of course, it’s up to the Court to find the many time that it — it wishes to.

William J. Brennan, Jr.:

Well I know that’s not suggested, but to me, is what the State —

It ought to be would be a breakfast suggestion from the State I think, when there isn’t any such suggestion —

Irwin L. Langbein:

Well, there was, let — let me be fair.

In the brief in our opposition to the petitioner for certiorari, there was another suggestion of — of adequate state ground that the idea that this was all a matter of discretion with respect to — to how long you had to postpone a trial, or whether you had to postpone trial at all.

And in that — in that passage in the brief, the stand that adequate state ground cases were cited and it — it looked as though we’re going to have an adequate state ground dispute here.

For that reason, by anticipation, I address myself to that in the main brief on that for the petitioner and so far I haven’t stirred up any response.

I — I think that the adequate state ground ideas out of this case at least as far as counsel are concerned.

Felix Frankfurter:

For having such burrow — burrow underground to find one, but I just want to know whether there was an appeal and what’s the part of the law was like that.

And in cases where a state court summarily dismisses the petition for habeas corpus.

I think it is not only our right, I think it’s our duty to find out whether there wasn’t a state ground on which such action was taken particularly, if the petition on its face seems to show a federal claim.

I think it would be our duty if this would be — I feel that my — not to attribute, disregard or settle constitutional — federal constitutional principles by a State Supreme Court rather look to see whether there isn’t a decent state ground.

I don’t think — I don’t wait for counsel the suggest —

Irwin L. Langbein:

I’m — I’m not suggesting and (Voice Overlap) —

Felix Frankfurter:

But it may well be that — that what I would — the case I put to you was very specific one, namely that the State law was clear that you have to avail yourself of an obviously well-known right of appeal automatically unhampered by any financial burdens.

And if the State came here on such a ground, I’d have a very different problem myself.

Irwin L. Langbein:

The State has made that —

Felix Frankfurter:

All right.

Irwin L. Langbein:

— contention in any event.

Felix Frankfurter:

That’s — that’s a good answer.

So that evidently, there is no such — the State would know such a law if there were one.

Irwin L. Langbein:

I would — I — I would assume, sir.

But I — perhaps I might — might go a little further there and state what I think resolves this mystery of why the State court cut him off so quickly.

That three-line order on facts that I have recited looks — looks a little harsh.

And, I think, the reason why the State court gave no opinion here will be apparent if you read this masterpiece of jurisprudence.

It — it isn’t as good as the citation (Voice Overlap) —

Felix Frankfurter:

You’re going beyond what I found and (Inaudible)

Irwin L. Langbein:

There are a lot of nice citations that it’s an impertinent and scandalous job.

There are number of things suggestions of bribery of the judge, suggestions of — of this — this lawyer running out on the man which don’t rise to the dignity of allegations.

But they’re the kind of things that — that makes you impatient with — with this sort of allegation.

And I can well conceive how an earnest State Supreme Court, faced with the fact that the worse of the case — the — the really aggravated examples of unfair trial, use of other crime testimony in both aspects, weren’t at all set out in The statement of facts, but you have to dig them out in three, four places from this big long murky argument.

I can well understand why a court is busy as the Supreme Court of Florida —

Felix Frankfurter:

And that — that —

Irwin L. Langbein:

— would — would turn it down.

Felix Frankfurter:

(Inaudible) such petition probably the Attorney General would tell but I suppose so far as (Inaudible) in dismissing cases like the — the (Inaudible) and you think of, I don’t know whether through Florida, but in state courts, they have a volume of business.

They don’t write opinions anymore than we do in so many cases.

Irwin L. Langbein:

Well, it’s a difficult problem.

There — there’s that — that Illinois (Inaudible) where — where you never know what’s going to happen.

You don’t get any guidance from the Court.

But I — I sincerely believe from my experience with the Supreme Court of Florida that — that this is simply a dismissal on a petition that — that looks as though it’s not saying anything beyond what could be a fairly closed case about which reasonable men could differ perhaps, particularly if it were presented without counsel to point out what is said in an indirect and garbled way in a newspaper account.

Felix Frankfurter:

What you’re suggesting now is that the memorandum of law, it makes really diluted the force of the allegations of the petition (Inaudible)

Irwin L. Langbein:

I — I would — I would use a stronger word than dilute.

May I reserve the balance of my time?

Earl Warren:

(Voice Overlap) you may, Mr. — Mr. Jaffry, you may proceed with your argument.

Edward S. Jaffry:

Mr. Chief Justice, Honorable Associate Justices, may it please the Court.

The way the respondent sees this case, there was basically only one question to be decided by this Court.

Whether or not, based on the facts presented to the Supreme Court of Florida in petition — as petition for writ of habeas corpus, the Supreme Court of Florida erred by denying him the relief he sought.

Under the long array of decisions of this Court, in terms of the failure of the — the trial court in Florida to appoint counsel to represent this defendant, the rule is clear.

There must exist, particular circumstances in a particular case to reflect of that degree of unfairness that actively operated in the process that resulted in his confinement.

Now, the petitioner early in his petition for writ of habeas corpus, and the record as counsel for petitioner stated, this Court constitutes the petition for writ of habeas corpus, the only the matter the Supreme Court of Florida had before.

The petitioner alleges that he was unable to adequately defend himself in the trial below.

Edward S. Jaffry:

And for that reason, it was imperative that the lower court appoint counsel.

Now —

Felix Frankfurter:

That is noted.

Edward S. Jaffry:

No, they are — they are the questions.

He says in the — in the —

Felix Frankfurter:

(Inaudible) questions, other allegations, aren’t they?

Edward S. Jaffry:

Yes, Your Honor.

He — he alleges that —

Felix Frankfurter:

His mother — mother stated.

Edward S. Jaffry:

Well, yes.

That — but the — the way we view that, that would go more to the question of the denial of his motion for continuance in order to procure his own counsel.

Felix Frankfurter:

But if it necessarily given him a continuance, he’s made to go on without a lawyer.

That means he isn’t fairly — he’s — he’s not capable of —

Edward S. Jaffry:

Well —

Felix Frankfurter:

— to defend.

Edward S. Jaffry:

— as reflected in — in the trial court, the trial judge considered that he did not need counsel and that continuance would be an unwarranted delay.

I think we will make that clear when we examine the petition for writ of habeas corpus.

Felix Frankfurter:

I’m suggesting that if there’s an allegation that other lawyers, at least in part, refuse to take the case or they didn’t have time to prepare so that they couldn’t just move in.

Now that certainly is argumentative, I believe.

Edward S. Jaffry:

Yes, yes.

It — it’s —

Felix Frankfurter:

(Voice Overlap) —

Edward S. Jaffry:

I see what you — you are —

Felix Frankfurter:

That — that a layman or —

Edward S. Jaffry:

You —

Felix Frankfurter:

— layman qualified or not qualified who this man was would find it equally difficult.

Although he’s been through — he’s been through a prior trial and the fact that the jury was hung up at this trial shows that it’s a case that requires some skill in its conduct.

Edward S. Jaffry:

Very true, Your Honor.

However, could we not imply to the statements of the attorneys that we need more time, based on the fact that they knew nothing about this case?

That they had no knowledge, if this man, if capable to defend himself, did sit to a prior trial, based on the same issues.

Edward S. Jaffry:

And we feel that the petition for writ of habeas corpus reflects that he had a better knowledge of legal procedures, then he would lead the — this Court now to believe or the Supreme Court of Florida early in — late in 1957 when he filed this petition.

Felix Frankfurter:

Well, you’re not comparing equal —

Edward S. Jaffry:

No, we’re —

Felix Frankfurter:

(Voice Overlap) I know he’s been through a trial is not the same as a lawyer who take English (Inaudible)

Edward S. Jaffry:

We — we —

Felix Frankfurter:

Pick up cases on 24 hours notice and going on the brief that thereby solicit.

Edward S. Jaffry:

Yes, we recognize that, Your Honor.

And we also recognize that is — this is a very close case.

We presented that statement to the Supreme Court of Florida and in line to that, the three-line order issued by the Supreme Court of Florida is not an exemption in this case.

That is the normal procedure.

Felix Frankfurter:

How many, roughly, do you happen to know?

Edward S. Jaffry:

Well, I don’t know roughly, Your Honor.

I left —

Felix Frankfurter:

(Voice Overlap) what magnitude —

Edward S. Jaffry:

Well —

Felix Frankfurter:

— hundreds or scores?

Edward S. Jaffry:

They run into I’d say over a period of a year, a way over the hundreds, Your Honor.

May —

Felix Frankfurter:

(Voice Overlap) —

Edward S. Jaffry:

— an example, I left Tallahassee on Monday, my office represented eight alone that morning.

We have been called upon to respond to 12 on one motion calendar.

Felix Frankfurter:

Did you follow response?

Edward S. Jaffry:

No, Your Honor.

If I may explain procedure to the Court, which seemed to be concerned about that, these prisoners or other persons filed petitions for writ of habeas corpus.

The Attorney General’s office represents the respondents, Mr. Culver.

At that time, we are notified that the petition will be placed on a motion calendar to be opposed by the Attorney General’s office, if they care to oppose it, in a 10-minute argument.

Our position is if we feel it justified, that even if true, the facts as presented by the petitioner failed to establish a prima facie case.

Failed to establish probable cause.

The Supreme Court of Florida then, if they had discretion, either denies the writ in a three-line order.

And in fairness I must admit there are occasions where they issue an opinion.

Edward S. Jaffry:

Where the prisoners obviously, attempting to harass the court by a multitude of the petitions, alleging the same thing.

Where he filed a petition in our court and then come up to this Court on certiorari, have it denied and start in our state courts again.

The Court will issue the written order in that case admonishing the prisoner.

However, if the normal procedure is to issue just as three or four line order, considering it and denying it, if that be their — their will.

And in this case, we explained to the Supreme Court of Florida, as we explained to this Court, that what happened on the morning of February 21st when this petitioner was presented to the trial court.

The first thing he asks not, where is my lawyer or what happened?

But he wants to know if his lawyer made a formal withdrawal.

Filed a motion and then the Court grants his motion.

There, we say, there’s an indication of some experience in trial procedures.

Two, excuse me, the record shows clearly that he did object.

He knew he had a right to object.

He was not prevented from objecting and we admit that he could not handle his case probably in a way a counsel long experience before the criminal bar could.

Felix Frankfurter:

Will you forgive me for interrupting?

Edward S. Jaffry:

Sure.

Felix Frankfurter:

I understood that the record of the crime was not before your Supreme —

Edward S. Jaffry:

No, Your Honor.

But we have —

Felix Frankfurter:

(Voice Overlap) what was there before the Supreme Court to indicate that he competently handled his own defense?

Edward S. Jaffry:

These allegations as this, Your Honor.

He says here as he walked — the first thing he did on the morning he walked into court.

He asked the court whether Mr. Carr, referring to his earlier counsel — and this is on page 2 of the record, Your Honor.

The numbers in the upper left hand corner of the pages.

There are some on the bottom — had withdrawn and asked the Court if Mr. Carr had filed a motion to withdraw as his attorney.

Judge Patton, the trial judge, informed petitioner he had granted Mr. Carr’s motion to withdraw.

We have no idea why Mr. Carr withdrew.

The next we find in his argument and questions presented that he did object to evidence.

He knew he had a right to object to such evidence and that at no time during the trial, was he precluded from objecting two, three, I — I should say.

He had been present in a trial on the same issues before the same court.

William J. Brennan, Jr.:

This man was what, 20 years old?

Edward S. Jaffry:

He was 20 years old approximately, Your Honor, at this time.

Felix Frankfurter:

And if not, it’s — it’s agreed that he’s the first offender.

Edward S. Jaffry:

I can’t go outside the record, Your Honor.

As far as this record —

Felix Frankfurter:

Well, you must agree.

Edward S. Jaffry:

What?

Felix Frankfurter:

You must agree.

Edward S. Jaffry:

As far as the record is concerned, he had never been convicted of a crime before.

He had evidently committed crimes before in a language of his accomplice in this particular case.

He had perpetrated —

Hugo L. Black:

You mean that — that was testified to in a case against him as he’s committed another on different crime?

That — that’s the imposition he gives in the record.

Edward S. Jaffry:

Yes.

That’s the way, it appears in the record.

Hugo L. Black:

That — why, would that have been admissible in Florida?

Edward S. Jaffry:

Well, Your Honor, the general rule in Florida is to this effect, that prior acts and circumstances are admissible to prove intent or guilty knowledge in a particular crime charged.

And when do these acts or circumstances constitute the commission of other crimes, they are admissible on the question of intent, guilty knowledge, to show a plan, scheme or general criminal operation.

Now, an issue has been joined here in terms of whether or not — whether testimony comes solely from the accomplice witness connecting the defendant or the petitioner with the principal crime charged, this other crime testimony is admissible.

The rule though is, however, that other crime testimony is admissible for that specific purpose and of course —

Felix Frankfurter:

Would that —

Edward S. Jaffry:

Excuse me, Your Honor.

Felix Frankfurter:

You would surprise me, if you were to tell me, you know how I don’t.

That in Florida this rule as to admissibility of other crimes is so clear and so closely confined and defined that even many lawyer could tell without examining all the cases when it does and when it doesn’t apply?

Edward S. Jaffry:

I — I couldn’t answer that, Your Honor.

Felix Frankfurter:

You couldn’t say —

Edward S. Jaffry:

No, I —

Felix Frankfurter:

It’s one of the most ticklish subjects in —

Edward S. Jaffry:

It is a —

Felix Frankfurter:

— jurisdictions, generally.

Edward S. Jaffry:

That is a — a —

Felix Frankfurter:

And it’s usually a very limited —

Edward S. Jaffry:

(Voice Overlap) —

Felix Frankfurter:

— and they have to find either an odd crime so unusual like poisoning by arsenic and the —

Edward S. Jaffry:

No, Your Honor.

May I — there are cases in Florida involving — we would say rape prosecutions, where the State has been permitted to show whether has been a question let’s say of identity, that this particular person charged with this particular rape has committed other rapes or other assaults with intent to commit rape or other acts —

Felix Frankfurter:

And unlimited as to time, or plan, or pattern.

Edward S. Jaffry:

I — in — in — well, there must be a connection showing the same type of criminal scheme.

Felix Frankfurter:

What — what I’m suggesting is that that raises rather different questions when those conditions for admissibility is satisfied, is that right?

Edward S. Jaffry:

That would raise an illegal question, Your Honor.

We —

Earl Warren:

And does at the — does the testimony in this case show that these other crimes amounted to a — a general scheme or plan?

Edward S. Jaffry:

Your Honor, of course, as the Court is aware, we have no testimony in a (Inaudible) sense.

Earl Warren:

Well —

Edward S. Jaffry:

We have just these statements.

Earl Warren:

— it’s totally (Voice Overlap) —

Edward S. Jaffry:

The Supreme Court of Florida did not take it necessary to order a hearing, which here, they would normal — would — could do, if they thought the case warranted such.

We have just this statement, Your — on page 12 of the record, where petitioner quotes from Gainesville Sun again.

Yesterday, and this is in the second paragraph of that quote — or shall I start from the first?

State Attorney Ted Duncan of the prosecutor, “Today began the laborious process of corroborating testimony that Ray Cash participated in a burglary here last year.

Yesterday, Lawrence Allen, a friend of Cash for over four years, took the stand for an hour and a half and related how he and Cash in company of two others, burglarized stores, stole a truck and become engaged in a running gun battle.

Evidently, the Supreme Court of Florida felt that this prior — that — that this testimony of other criminal activity was a part of a general plan, a general crime wave, perpetrated or — or exacted in the same manner.

Now on this point, I wish to point out to the Court that even if petitioner’s construction of — of the Padgett case, as he quotes in his brief, and as we quote in our brief, is that where the testimony connecting the principal — the — the petitioner with the principal crime charged, comes only from the accomplice, that is not sufficient evidence to connect him with the crime for the purposes of letting this other testimony or this other evidence in.

We have these statements throughout this brief that the testimony of the accomplice was corroborated.

And so we find that it may be very well not have been inadmissible, that it was corroborated and thus was — not withstanding the Padgett rule, if — even if petitioner’s construction of the case be proper, that it was corroborated and that the petitioner’s case was further connected with the principal crime charged by evidence other than the accomplice testimony.

What that corroborative testimony we — is we don’t know.

He says it would —

William J. Brennan, Jr.:

(Inaudible)

Edward S. Jaffry:

I — as I present it to this Court we recognize that this is a —

William J. Brennan, Jr.:

Well, one — one of the things that the Attorney General —

Edward S. Jaffry:

Yes, sir.

William J. Brennan, Jr.:

— gather for our purposes, we have to accept these facts, do we not, that he was 20 years of age, was uneducated, had never heard of court trial except at one time, kept the one time, when he was previously tried on this charge.

William J. Brennan, Jr.:

Do we have to accept those?

Edward S. Jaffry:

Yes, Your Honor.

You — I (Voice Overlap) —

William J. Brennan, Jr.:

I’m just wondering, where — where is that the Court find is the basis, although the State finds the basis for attributing to him some special confidence in defending himself at his own trial?

Edward S. Jaffry:

Just from the statements made later in his petition.

They brought her down the effect of these strong allegations of uneducated — true, he may not have had a formal education and he may have only been 20 years old.

William J. Brennan, Jr.:

Well, I mean, we have to accept the fact that he was, do we not?

Edward S. Jaffry:

We — because this issues are true, we — we cannot deny that into other testimony.

But we — as we glanced through the petition and we read his petition.

We find that he knew what to do with himself when he was in courtroom.

As I pointed out, he knew that a formal motion for withdrawal should have been made.

He knew that he had a right to ask for a continuance.

He knew that he had a right to object and that he did object.

He knew that he had a right to cross-examine witnesses and that he did cross-examine witnesses or he examined witnesses.

Felix Frankfurter:

Is it — would it be unfair, Mr. Jaffry —

Edward S. Jaffry:

Yes, sir.

Felix Frankfurter:

— for me to say to myself, if one other thing is when — when an infant withdraws from the self drawn decisions so called, with the aid of present lawyers, is that — while they’re both secured has also professional vanity and they like to go around places like a motion (Inaudible)

The Lord knows what he actually said in his petition said, he asked the court whether there was a formal motion.

Edward S. Jaffry:

Yes.

Your Honor —

Felix Frankfurter:

In the absence of the court, whether — we don’t know what even (Inaudible)

Edward S. Jaffry:

Well, the —

Felix Frankfurter:

Isn’t that that element or don’t they like to feel that they’re pretty good —

Edward S. Jaffry:

That made —

Felix Frankfurter:

(Voice Overlap) at the same time, they say, they were wholly embarrassed by their ignorance.

Edward S. Jaffry:

Well, it maybe very true, Your Honor.

But we have that based — that — that statement made in the record.

We must accept that as a valid allegation just as we must accept his allegation that he’s 20 years old and uneducated.

Felix Frankfurter:

But if the whole — if the whole petition discloses, a kind of a confused pretentious ignorance, a confused mind, then we have — accepting it all, it may had open the fact that there — whether the good deal of strutting — the formal verbal strutting, there’s also a good deal of incapacity to understand what it is he was dealing with.

Edward S. Jaffry:

Your Honor, I would be the last to deny that in that case, this Court should order the Supreme Court of Florida to hold a hearing in any case where that matters —

Felix Frankfurter:

What kind of a hearing would —

Edward S. Jaffry:

Well, it would depend, Your Honor.

Now, we would have to file a return, a formal return.

We would be required to state —

Felix Frankfurter:

I mean suppose this — I’m assuming and I’m (Voice Overlap) —

Edward S. Jaffry:

Yes, sir.

Felix Frankfurter:

But suppose this case was reverses, this Court reverses —

Edward S. Jaffry:

Yes, Your Honor.

Felix Frankfurter:

What is the — what is the sequences of that?

Edward S. Jaffry:

The State — we would actually start where we were in December of 1957.

The State Attorney — the Attorney General’s office, as counsel for the respondent, would be required to file a return where we would either deny or admit, allege other facts.

The Court then — if not satisfied, that the Attorney General’s office has rebutted conclusively the showing made on paper, so to speak, they would order a hearing held where the petitioner —

William O. Douglas:

Where will that hearing be held?

Edward S. Jaffry:

The hearing would be held in one of our Circuit Courts, most probably in Alachua County.

Felix Frankfurter:

They’d send it down.

Edward S. Jaffry:

They’d sent it down.

They are not equipped to take testimony in any manner, they — they just don’t — do not do that, Your Honor.

William J. Brennan, Jr.:

They could on a basis of return.

Edward S. Jaffry:

They could on the basis —

William J. Brennan, Jr.:

(Voice Overlap) —

Edward S. Jaffry:

Yes, Your Honor.

They could.

On the basis of the return, require that a hearing be held and that —

Or not —

Edward S. Jaffry:

Or not be held depending on what matters to their satisfaction the return establishes.

William J. Brennan, Jr.:

Well, I ask to Mr. Jaffry —

Edward S. Jaffry:

Yes.

William J. Brennan, Jr.:

— if the Supreme Court rather than take the action it did here of denying, I gather this was after as you told us earlier that had been the opportunity in — until you’ll do have this 10 minute argument?

Edward S. Jaffry:

Yes, Your Honor.

William J. Brennan, Jr.:

If they had decided there was enough of a color here of a claim by the petitioner, I gather then what would’ve been required was a response from the State that —

Edward S. Jaffry:

Would be a formal response or return whatever —

William J. Brennan, Jr.:

So the determination whether they have a hearing is not made until after the State had an opportunity to file a response.

Edward S. Jaffry:

Well, it’s — it’s almost a formalized matter.

There has been no formal joining of issue until a return has been filed, Your Honor.

It — the — the hearing is actually to aid the Court.

They could work or operate on these petitions for habeas corpus much the way this Court does on petitions for writ of certiorari, denied them on their face.

William J. Brennan, Jr.:

Well, what I’m trying to get to is if there should be a reversal here, and like Mr. Justice Frankfurter don’t make any inference that — suggesting the (Inaudible) but if there should be, I gather that to your Supreme Court will simply be an indication that we think there’s enough of — on the face of this petition of a color of the claim that your Supreme Court should then take the next step which would be requiring you to file a return (Voice Overlap) —

Edward S. Jaffry:

File a formal return.

And that’s my understanding of what the procedures would be and my understanding of what this Court could do if they had to be so inclined.

The point I’m — excuse me, sir.

Potter Stewart:

If after we’re dealing a return, there, they are satisfied that their hearing is required, then you told us that the hearing is in the Circuit Court.

Edward S. Jaffry:

They will hold the hearing in the trial court — in the Circuit Court —

Potter Stewart:

And it —

Edward S. Jaffry:

— probably not before Judge Patton, sir.

Potter Stewart:

Probably not —

Edward S. Jaffry:

He will be called as a witness for one side or the other, so it would be one or the other circuit’s judges in that —

Potter Stewart:

Is — is there a provision not to get at the expense of the State, the — the transcript of the trial?

Edward S. Jaffry:

Your Honor, I’ll say this that if we are required to file a return, I will order that transcripts be made up.

I mean, I would — I would —

Potter Stewart:

The purpose of —

Edward S. Jaffry:

— need them to — for purposes of filing a formal return.

Potter Stewart:

— request for a return.

Edward S. Jaffry:

I could not — all I could do would be deny these allegations.

I wouldn’t — we don’t do that in the return.

We would file somehow, we obtain the transcript of records.

We would have to —

Potter Stewart:

Do you —

Edward S. Jaffry:

— in this case.

Potter Stewart:

— by the Supreme Court of the — of the facts?

Edward S. Jaffry:

Yes.

Potter Stewart:

Appearing in the transcript?

Edward S. Jaffry:

Well, we would probably attach to our return a copy of the certified transcript of record or what portions that we think necessary.

Felix Frankfurter:

What you said about wouldn’t go to Judge Patton.

Leaving on my mind the impression that it is the practice of your court where — what the conduct of the trial court has been challenged not presented back to him, but presented to some new neutral judges.

Edward S. Jaffry:

No.

I — I don’t say that, Your Honor.

I say —

Felix Frankfurter:

You said it wouldn’t (Voice Overlap) —

Edward S. Jaffry:

They wouldn’t probably it’s because recognizing that one party or the other would probably call Judge Patton as a witness in this particular case.

I’m sure that the respondent would ask to have him subpoenaed to appear.

I mean, excuse me, the petitioners.

Felix Frankfurter:

In this kind of a case, almost inevitably, the judge is involved.

Edward S. Jaffry:

Yes, he would have to.

He would have to be involved and so he would be called by one of the parties to testify.

Felix Frankfurter:

And your Supreme Court would ab initio, take that in —

Edward S. Jaffry:

They may, I’m sure they would recognize that, Your Honor.

Hugo L. Black:

Is it fair to say that to read this petition as alleging substance or a young 20 year old male, uneducated, who is the youngest member of the family that has the reputation of being bandits and outlaws, who is tried in this trial when he had a lawyer, he was to put the trial again over his objection when he was insisting that he needed a lawyer, but rather couldn’t have.

And that he was at that time, in fact, were introduced about the other members, older members of his family who were — has a recognition of being bandits had been engaged in the commission of crime with the man that —

Edward S. Jaffry:

Yes.

Hugo L. Black:

— witness against him.

Is that — is that a fair inference to be drawn?

Edward S. Jaffry:

No, Your Honor, if that be the case, there could be a great question.

Now I question, whether or not —

Hugo L. Black:

Which part of it —

Edward S. Jaffry:

Whether or not, he — it would be a fair proceeding in terms of —

Hugo L. Black:

So what — what — is there any part of that that I stated that is not fairly a — a statement of what the charges?

Edward S. Jaffry:

Well, the only —

Hugo L. Black:

I — I read — I gathered that from the charge —

Edward S. Jaffry:

That’s what he seems to — he alleges —

Hugo L. Black:

What he’s charged.

Edward S. Jaffry:

That’s what he charges and alleges here.

Hugo L. Black:

Yes.

Edward S. Jaffry:

Now —

Hugo L. Black:

He charges that, is that denied?

Edward S. Jaffry:

We cannot agree not at a place of (Voice Overlap) —

Hugo L. Black:

Cannot agree what —

Edward S. Jaffry:

Into this, Your Honor.

Hugo L. Black:

— but — has it been denied?

Edward S. Jaffry:

It’s denied.

Well, I — I don’t understand your question.

Is your statement denied or he charged?

Hugo L. Black:

If — or — is that — do you not read those charges from what he had alleged in his petition?

Edward S. Jaffry:

Yes, we — we feel that — that is one of his allegations.

That one of his charges and he argued — the petitioner argues in his brief that he was being tried for a conspiracy and that he was not being charged for the principal crime.

Hugo L. Black:

That he was the youngest member of the family.

Edward S. Jaffry:

The youngest member of the family.

Yes, Your Honor.

Hugo L. Black:

Others of whom who had the reputation of being bandits?

Edward S. Jaffry:

That seems to be —

Hugo L. Black:

And that he was not — he is — not been in this before and not been charged before this time.

Edward S. Jaffry:

Yes sir.

Hugo L. Black:

And that evidence came out that these other members of the family who has a reputation of being bandits had been engaged in banditry with the witness against this man at this time.

Is that correct or not?

Edward S. Jaffry:

And in — in their view when the — the petitioner here was not present during the commission of the said crimes.

Hugo L. Black:

(Voice Overlap) —

Edward S. Jaffry:

That’s the — my understanding of this charge.

I cannot draw such an affirmative statement from the record before us.

We only have this Cash says, Mr. Cash in this case —

Page?

Edward S. Jaffry:

Excuse me, page 11, he says that everyone know and I’m now quoting or summarizing, everyone knows that Ray Cash, the petitioner here, was not a member of the Cash gang.

Edward S. Jaffry:

Well, of course, that is true.

Everyone — we don’t know if everyone knows it, but accepting that is true, he says the gang was known as big time operators, as the testimony of one of its oldest members Lawrence Allen, the accomplice in this crime, shows he and other members pulled $180,000 robbery in New Orleans.

And then he says and the petitioner, Ray Cash, was not there.

He does not — is made for this Court may feel that this is running the line very thin, but it does not allege that the testimony in the trial court was that he was not there.

And under our earlier argument, it may well have been admissible evidence that they pulled this $180,000 robbery, when under the statement earlier that he, the petitioner here, and Fred and Allen and evidently Fred Cash or others had pulled other or had perpetrated other robberies of breaking and entering —

Hugo L. Black:

You mean that under power of the law, they could — under any circumstance, show or pattern so that you could pull the actual burglary or robbery by one group against one other person who is not in the group?

Edward S. Jaffry:

No, Your Honor.

The — I — I don’t mean to imply that at all.

The (Inaudible) is clear, as I stated before, under certain circumstances and that this Court has stated the testimony of other crimes or prior acts would be admissible.

Hugo L. Black:

By the defendant, but by his accomplices at another place –time and place?

Edward S. Jaffry:

If he were present.

Hugo L. Black:

Yes, but if he were not (Voice Overlap) —

Edward S. Jaffry:

If he were not present, I — I could not substantiate, under Florida law, the admission, that’s why I say if.

William J. Brennan, Jr.:

Well, then your pointing (Inaudible) actually, a testimony modifies (Inaudible) testified that he and other members of the (Inaudible) $180,000 robbery in New York.

Edward S. Jaffry:

That’s right, Your Honor.

William J. Brennan, Jr.:

This does not mean that it was — that testimony also included in the testimony that petitioner Ray Cash (Inaudible)

Edward S. Jaffry:

That’s the way I — I construe this.

That’s the way I construe this.

William J. Brennan, Jr.:

It is ambiguous.

Edward S. Jaffry:

It is ambiguous because of his early allegation that Allen testified that Cash, the petitioner here, had committed other robberies of breaking and entering is — the legal definition may not be too clear here.

Felix Frankfurter:

May I — may I draw the inference that you would take the case before us, would be a different case, if the final sentence down the — both on page 4, the closing of what — of the paragraph on top of page 4, does and this give the case, if he really had ended there, maybe we would have a different case.

Edward S. Jaffry:

You might have had a different case, Your Honor.

And the Supreme Court of Florida may have had a different case.

But when petitioner then explains exactly what he did, he bears to the Supreme Court of Florida and we feel to this Court what many petitioners tried to do and some successful bear allegations of error, gets him a free trip out of Raiford.

We handle this — start of the record, we handle this very often.

Bear allegations or error, coercion to a plea of guilty, a beating to obtain a confession, bear allegations.

We have no way of denying or admitting it and so we join issue and the records fail to reflect, if there were trial records, usually on a plea of guilty, there is not that extent of trial record.

We have nothing in the record to reflect whether or not, his allegations are true.

And so a hearing is held and the prisoner gets a free trip to the county jail out of Raiford, the State Prison and spends a day out in the open free air.

Now, we don’t say that’s what happened here, but the beginning — the early portion of this petition is what we are normally confronted with.

Edward S. Jaffry:

We would have gone to a trial, so to speak, on those allegations, but he completely destroys those allegations when he discusses exactly what he did and he shows to my mind that the only incapacity he suffered from was an inability to defend himself with the same degree of proficiency that a legal counsel with some degree of skill and experience before the bar could have.

But that, of itself, does not, in my mind —

(Voice Overlap) one thing to say though, without taking you record at the trial for taking a look at the trial record.

Edward S. Jaffry:

That, of course again, we don’t have the trial record.

We are leaning from this as —

I know.

That’s the issue — that’s the issue that we have here.

It’s simply whether or not, the allegations here are so frivolous or so inadequate that the State Supreme Court as a matter of due process, could say, “No, we won’t give this man a hearing,” without looking at the record.

Edward S. Jaffry:

Well we — we contend, Your Honor, that based on the allegations he presents in his portion called argument in question 1, that he destroys the effect of his direct allegations and left the Supreme Court with nothing saved, a statement or a conclusion that I draw from this record and that he had no absolute right to a petition — to a writ of habeas corpus and it’s attendant is the consequences and circumstances.

Earl Warren:

Mr. Jaffry at the beginning of your argument, you very frankly stated that this was a closed case, I — I so understood you, at least.

Now, I suppose you mean on the — on the facts —

Edward S. Jaffry:

On the facts.

Earl Warren:

On the facts, yes.

Now, I’m — I’m wondering if there is anything in this case other than a decision of that close question on the facts that particularly bothers the State of Florida so far as this Court is concerned.

Is there any important principle of — of federal state relations or anything of that kind that would particularly disturb the State of Florida in this case, or is it only that you believe on balance in this very close case that you are — you are right and that therefore, you should be sustained?

Edward S. Jaffry:

Well, Your Honor, in answer to your question, sir.

We feel and we allege in our brief that unless there is a clear absolute violation of the federal right that the States should be permitted to conduct their own criminal procedure and to afford to defendants the protection, the State feels, as forthcoming.

We feel that that was done in this case.

That he has not presented and I remind the Court that we’re here on habeas corpus.

We are not here on an appeal.

There is no full record.

The burden was on petitioner to show well, by — clumsily or not, but to show affirmatively to the Supreme Court of Florida that his federal constitutional and or state constitutional rights were violated and because of that, he is now being held in lawful custody and we feel that he has not done that in this case.

We feel that whatever my personal feelings maybe or whatever — he has not established that and that the Supreme Court of Florida was justified on the basis of the record before them at that time in denying his petition for writ of habeas corpus.

Hugo L. Black:

Is that on the basis that although he charged (Inaudible) that you can’t say that those charges are fantastic.

You wouldn’t dismiss it for that reason they’re fantastic as he write you but is it on the basis that because this is a pretty well written thing here, he somehow shows that he was educated enough competent enough and capable enough to defend himself against this charge?

Edward S. Jaffry:

We — we take this position, Your Honor, that the petitioner as a whole, reflects that.

Now, we will not rely solely on the fact that the instrument was prepared of itself, but that the allegations in this instrument reflect that he knew what he was doing in the trial court.

Hugo L. Black:

Do you think he prepared it?

Edward S. Jaffry:

He helped prepare it, Your Honor.

Hugo L. Black:

(Voice Overlap) —

Edward S. Jaffry:

Personally, he prepared it.

I don’t know who prepared it.

Now he has alleged in a reply memorandum to my response opposing the issuance of a writ of certiorari that he had other friends, but that is not the part of this record.

But I will —

Hugo L. Black:

(Inaudible) say they were (Inaudible) lawyers?

Edward S. Jaffry:

No, they are not lawyers, Your Honor.

Hugo L. Black:

Just kind of a jail [Laughs] —

Edward S. Jaffry:

We — we have a problem in Florida in our State Prison, we have persons practicing law without license and — and the —

Felix Frankfurter:

There are some distinctive things about Florida, but that isn’t one of them.

Edward S. Jaffry:

It’s not one of them, Your Honor.

We pride ourselves in certain things.

Felix Frankfurter:

How long was it after his conviction before this petition was prepared?

Edward S. Jaffry:

He was convicted in — in February 1955.

The petition was filed approximately one week prior to December 10th, 1957.

I did not have access to the court’s record when I filed this, but it was denied on the 10th.

So it must have been either a week or two weeks prior to that of 1957.

Hugo L. Black:

That’s two years after —

Edward S. Jaffry:

About two years Your Honor.

He was then — it’s to the proceedings in this Court and (Inaudible).

Felix Frankfurter:

Mr. Jaffry, would — am I oversimplifying your position, your legal position by what you say that it gets down to this that while the formal allegations of the petition on page 1 and down to the first quarter of page 4, would make out of prima facie case we can call for a return.

What follows us in effect, a P.S. to that P.S. although I formally have made clear that I was an incompetent to handle my own case, I now must admit that I did have such competence.

Edward S. Jaffry:

Well, we — we —

Felix Frankfurter:

Gets down to that.

Edward S. Jaffry:

It could get down to that, but we take the position — and this is not really in two parts.

He’s —

Felix Frankfurter:

I understand.

Edward S. Jaffry:

He’s mixed everything together.

Felix Frankfurter:

A — a P.S.is a part of a (Voice Overlap) —

Edward S. Jaffry:

I — I realize that, Your Honor.

But what he has done is allege and then said well, I — in — in factual allegation, what I allege could not possibly be true.

Felix Frankfurter:

Wipe it out.

Edward S. Jaffry:

It can’t be true.

I — I’ve destroyed my own allegation.

He has rebutted everything he said and —

Earl Warren:

Mr. Jaffry, do you think this as a practical matter that any young man of 20 years who is uneducated and who has never been in a court, except for the one experience just prior to — to this one.

And who has been for four months, incommunicado and advised just a few days beforehand that his lawyer has deserted him that he can be considered on that short notice to be able to defend himself, summon his witnesses, and do whatever is necessary to protect his rights.

Now, just take those things which I understand are conceded in the record.

You must — for the purposes of this argument, you must consider —

Edward S. Jaffry:

Well, we — we —

Earl Warren:

Do you believe that it is possible to say that any young man in those circumstances has the competence to defend himself on an issue which might and which, in this case, did bring him 15 years in the penitentiary?

Edward S. Jaffry:

Your Honor, I do not personally believe he can.

I must be honest with the Court, my personal feeling.

Earl Warren:

You’re very, very correct, sir.

Edward S. Jaffry:

I’m trying to be as candid and as honest as I can.

Earl Warren:

(Voice Overlap) —

Edward S. Jaffry:

It has been my feeling that he can’t.

It’s my feeling in terms of that area of the law —

Earl Warren:

Yes, I understand.

Edward S. Jaffry:

— but under the law that exists today —

Earl Warren:

Yes.

Edward S. Jaffry:

— I feel —

Earl Warren:

Yes.

Edward S. Jaffry:

— that the Supreme Court of Florida was justified in doing what they did for the reasons I have set forth here.

And if I may move on to this ancillary or question that is presented, which of course somehow meshed into the general question the right to a continuance.

The rule in Florida as it prevails today is to the effect that the motions — motions for continuances, the denial of the granting thereof, are matters vested in the discretion of the trial court.

We have a situation in this case and the Court is familiar with the facts that this man was held in close custody.

Now an answer to Justice Whittaker’s question to — on Mr. Langbein earlier this morning, I point out that Florida has a statute that provides in effect of I — I do regret that I do not have the statutory authority in front of me this moment.

That where a county jail — where a person confined in a county jail or for reasons that the county jail cannot adequately hold them or he is a dangerous prisoner and he would not be safe or could not be confined in that county jail.He maybe transferred to another county jail with the facilities for holding that man, are — are stronger or better.

Now I —

Charles E. Whittaker:

(Inaudible)

Edward S. Jaffry:

Now, that’s the point, Your Honor.

I don’t know why he was taken there.

I must presume and he doesn’t — I must presume that he was taken there for a proper reason and the only reason I can think of and again this is outside the record that they could not hold them in Alachua County, which is the county where he was tried.

That there wasn’t a jail in the vicinity and Alachua County is a small county in the central part of the State quite possible and then again, I say, I do not know.

Raiford is a short, 30, maybe 50 miles and Raiford is the farthest state prison from Alachua County.

The prison officials — I’m confident were reluctant to take him.

They’ve got enough trouble and I don’t say that in terms of whether he was a dangerous person, but they had another mouth to feed and another cell to clean and they were probably reluctant to take it.

They held him there for — the only reason I can think of.

He was a — I hate to use the word dangerous.

I don’t know.

Hugo L. Black:

That’s as I gather —

Edward S. Jaffry:

That would — excuse me.

Hugo L. Black:

As I gather from his petition.

His family has a very dangerous reputation.

Edward S. Jaffry:

That’s very true, Your Honor, very true.

His family has a dangerous reputation in some parts of the State now that I — I’m from the part of the State where this family lived for a while, I know of them.

I don’t know of their history and if travels have reached the northern part of Florida or the central part where this trial was commenced.

But they do in some portions of the State of Florida enjoy a dangerous or infamous reputation.

Now, if I may, he was brought before the trial court.

He moved for a continuance in order to secure counsel.

He alleges in his petition that the only reason the trial court denied his motion for a continuance was because the State had gone to great expense to bring witnesses.

We take the position from the record that that could not have been the only reason.

The record shows that he had somebody attempting to procure counsel to represent him.

That he was held for whatever purposes and must we not assume at this point that they were for a lawful purpose in closed custody.

He could not have, under any circumstances, easily conferred with a counsel.

There would have been a procedure.

They would — counsel would have gone to Raiford, and which I understand can — of course, can be done, but there was no telephone that he could reach.

He would have to be taken to the warden’s office.

So the only person who could logically talk to counsel attempt to procure counsel on his behalf was his mother.

Now, the record shows, not very clear, but it does establish that during the week preceding the second trial, both Mr. Cash and his mother were aware of counsel’s withdrawal.

Edward S. Jaffry:

Now, we admit that he could not go out and solicit counsel.

He may have been permitted, if he had asked, and we have no allegation that he did ask to use the telephone in the warden’s office.

From my personal experience, I know that has been done, but he would not have been permitted unconfident to make repeated trips to the warden’s office.

So the only person that’s able — the only person who he would — imagine would want to or could, would be his mother and his mother made the — these efforts.

And nowhere in the petition do we have any allegation that shows that she had procured counsel, that she thought she had counsel except her statement to Mr. Duncan, the prosecutor, during the week preceding that — that she had gotten counsel that day, but evidently did not because no counsel appeared.

And so, we submit that the trial court had no cause to delay any further.

We had no indication of how long they wanted.

Was it a day, a week, a month, a year to find counsel to search the Florida Bar, to find somebody to represent this man at the fee they could afford to pay.

Potter Stewart:

Under certain circumstances, Florida does provide for the appointment by the court of counsel that —

Edward S. Jaffry:

Oh, yes, Your Honor.

And it’s under (Voice Overlap) —

Potter Stewart:

What are those circumstances?

Edward S. Jaffry:

These — well, the Florida court has decided in the case Sneed versus State — or Mayo, excuse me, and we cite that in our brief, that where the record shows that the defendant could not adequately defend himself because of age, ignorance or mental incapacity, counsel should be appointed in a non-capital case where — where petitioner or defendant cannot secure his own counsel.

Florida law provides by a statute that in a capital case —

Potter Stewart:

Always —

Edward S. Jaffry:

— counsel shall be appointed —

Potter Stewart:

Yes, always.

But in a non capital case —

Edward S. Jaffry:

In a non-capital, Florida follows the general rule coming from this Court and followed by most jurisdictions that have the — that same type of the statute that we have.

Potter Stewart:

And within this — this criteria, within this general framework it’s within the discretion of the trial court —

Edward S. Jaffry:

Yes, it is, Your Honor.

Potter Stewart:

— to apply this (Voice Overlap) —

Edward S. Jaffry:

Yes, I point out that we are presuming from the record and there’s no allegation contrary that Judge Patton, the trial judge in the second trial, presided the former trial.

And he sat and he watched.

He saw a counsel, he saw Cash and in his discretion —

Potter Stewart:

Does this petition allege that he asked the court to appoint counsel after that?

Edward S. Jaffry:

Well, we — we take the position he does, he — he did, Your Honor.

Potter Stewart:

He did.

Edward S. Jaffry:

He did.

He asked for a motion, but continuance only alternative to appoint counsel.

Potter Stewart:

The appointment of counsel —

Edward S. Jaffry:

That’s the allegation.

We could not deny that.

Felix Frankfurter:

Presumably, unless Cash took the comment of the first trial out of the hands of Mr. — forgive me, Mr. Carr, the judge didn’t have much of a — couldn’t get much of an impression of how competent that Cash would be in conducting his own case.

Edward S. Jaffry:

Very true, Your Honor.

Felix Frankfurter:

Simply had what — when he’s told, a competent lawyer to decide.

Edward S. Jaffry:

I — I recognized and I made a statement.

I went to show that he had evidently talked to Cash and he — understood that he have spoken in more than two-syllable words or he had some familiarity with the English language and knew what was happening, what was going on and that’s only reason I made that statement.

Not that Cash evidently had or had anything to do with the actual mechanics of trying the first cases.

It must be presumed that he didn’t — he did have counsel.

Hugo L. Black:

He said, I believe the petition said he was raised on the farm somewhere —

Edward S. Jaffry:

He said he was a farm boy, 20-year-old farm boy.

Of course, I know some farm boys who were —

Hugo L. Black:

Undoubtedly, but —

Edward S. Jaffry:

And — and without formal education, who I take pride and know —

Hugo L. Black:

That — but I —

Edward S. Jaffry:

But he does make that allegation.

Hugo L. Black:

Yes.

Edward S. Jaffry:

He does.

And we submit in conclusion —

(Inaudible)

Edward S. Jaffry:

We don’t have a general public defender system, Your Honor.

Dade County, which is the southern-most or one of the southern-most county, one of the larger counties, it does have a public defender appointed or private county commissioners or some public officials paid by the county or the State.

We do not have a statewide.

There — from my personal knowledge, I may be mistaken, Alachua County where this trial was — was held does not have a public defender system, they may have some legal aid system worked out with the attorneys in that county, but I doubt that.

I do not — I do not really know.

Jacksonville area does that.

They had a legal aid system worked out amongst the — the attorneys themselves.

Felix Frankfurter:

Am I entitled to consider or take as one item and in a complicated equation, the fact that there was a hung jury at the first trial to indicate it wasn’t an open-and-shut case.

Edward S. Jaffry:

Well, of course, this Court can take into consideration any on that.

Edward S. Jaffry:

We even concede that under the liberal rules of pleading in these matters (Inaudible) a person.

The allegations with the newspaper could be considered.

Felix Frankfurter:

Well, I don’t — but that (Voice Overlap) —

Edward S. Jaffry:

Well, I plan to the Court that hung jury could be the result of many factors, not necessarily brilliant work of a trial counsel.

The State may have not failed to prove to the satisfaction.

Felix Frankfurter:

Oh, yes.

Edward S. Jaffry:

A jury may not — but this Court can take that into consideration.

Felix Frankfurter:

Have you not?

Oh I’m aware that —

Edward S. Jaffry:

One of the facts.

Felix Frankfurter:

(Voice Overlap) down as a conviction of the second trial but nevertheless, it — it shows that the State didn’t get a conviction on the first —

Edward S. Jaffry:

Well, of course, it — it’s in the record and that’s exactly what evidently occurred.

In conclusion, we — we respectfully submit that the Supreme Court of Florida had — did not have before it the sufficient matters on which they could or should have issued a writ of habeas corpus and that they were justified in entering their order, in December 10th, 1957 denied the petitioner’s application.

Can I ask you one more question?

Edward S. Jaffry:

Certainly, sir.

In cases where you don’t put in response (Inaudible)

Edward S. Jaffry:

May I — may I say this that we — in every case that since I have been with the office, Your Honor, save one and I will explain that distinction in a moment.

We have made an oral response or an oral presentation on every petition, somebody from the Criminal Division of the Attorney General’s Office.

On one occasion where it was an obvious attempt to test the constitutionality of a statute, the Court just issued the writ.

And we filed a return and there was no question there.

It was an obvious attempt that that and nothing more, and the Court was going to do it in any event to determine constitutionality, but we usually filed some or not filed, but made some oral response to every petition.

Felix Frankfurter:

Could you bring my knowledge of (Inaudible) case?

In those — long ago, he — this would have to be done by a coram nobis, what is the present situation?

Edward S. Jaffry:

What would — this (Inaudible) this here, this matter before this Court?

Felix Frankfurter:

There is — there’s a dozen problem in the (Voice Overlap) —

Edward S. Jaffry:

Yes.

Florida has to finally resolve shall we say — the coram nobis problem and although it’s used very rarely, coram nobis rely in Florida where a matter is presented to an appellate court and assuming there had been an appeal in the case, that was not before the trial judge, but which — if he had known about, he would not have sentenced or would not have accepted to plea of guilty.

There has to be a matter that the trial judge had no knowledge of, something that would have precluded —

Felix Frankfurter:

So coram nobis would not lie in the case?

Edward S. Jaffry:

No, coram nobis would not lie in this matter.

Felix Frankfurter:

Even in the (Inaudible)

Edward S. Jaffry:

No, it would not lie.

We have the Lamb case in Florida and — and subsequent cases.

It lies usually where the defendant does not allege an alibi and then it’s later shown that he was incarcerated at Raiford that precise date the crime was committed.

They are following the procedures that would be a coram nobis question.

Earl Warren:

Mr. — Mr. Langbein.

Irwin L. Langbein:

Unless the Court wishes to address some questions to me I have nothing further to argue.

William J. Brennan, Jr.:

I just like to ask this one question with, Mr. Langbein, I — you would fair with, really want us — the hearing on this petition, but I gather what the Attorney General told us would happen, if we did reverse, you’ll agree and what would happen in the (Voice Overlap) —

Irwin L. Langbein:

Oh, precisely.

Ultimately, I think we’d wind — we’d wind up for the hearing.

William J. Brennan, Jr.:

But you might not?

Irwin L. Langbein:

We might not.

William J. Brennan, Jr.:

If we they’ll return —

Irwin L. Langbein:

We want — we want the facts to be dugout one way or another.

I’m not interested in having my boy get a free ride.

Felix Frankfurter:

Well, if you — if — if case were to go back with this — by the Supreme Court and the State then would make a return that Mr. Jaffry told us about and on the basis of the return so far as the Supreme Court says, it’s now clear that he was confident to handle himself.

It is now clear, or dismiss, or — or write a three-page — three-line of pages again memorandum.

You could then again come here on that record.

Irwin L. Langbein:

I might, but I have a better record to do it, Your Honor.

Felix Frankfurter:

Yes.

Well, I’m — I’m — just want to see what due course you may.

Irwin L. Langbein:

Well, perhaps I have a worse record.

I don’t know.

Felix Frankfurter:

Yes.

Irwin L. Langbein:

In any event I wasn’t just speculating as we are doing.

Felix Frankfurter:

(Voice Overlap) I just want to see what — what the possibility though.

Anyhow, it wouldn’t be concluded.

It — it might be concluded in trial of the Supreme Court, either by extending it a trial before a Circuit Court hearing, before a Circuit Court or by denying it on — on the record and then you would to decide, assuming you continue in this case as I drew in open words, you would then have to decide whether on that record, it has any portion coming up here.

Irwin L. Langbein:

Right.

I crossed that bridge when I came.

Felix Frankfurter:

Yes, I know.

Irwin L. Langbein:

The important thing now is that —

Felix Frankfurter:

There is no bridge now, so you can’t cross.

Irwin L. Langbein:

I know.

I just don’t want to cross any bridges about where (Inaudible) belong in this petition.

Felix Frankfurter:

(Voice Overlap) —

Hugo L. Black:

But your petitioner has asked for a hearing.

Irwin L. Langbein:

Yes, but the precise nature of his hearing is one that —

Hugo L. Black:

Yes.

Irwin L. Langbein:

— the state law can determine.

There maybe no issue of fact here.

It maybe that this is determined —

Hugo L. Black:

They might admit the facts.

Irwin L. Langbein:

That this — that this is determined precisely on — on the basis of a record which supports me, if so, there’s — there’s nothing, but a question of law as to whether on those facts, the — the — there was a good cause of action.

Felix Frankfurter:

In other words the —

Irwin L. Langbein:

There may be no need for testimony.

Felix Frankfurter:

In other words, the State in effect has made a talking demurrer to this — to the petition and if we say that that demurrer was ill-founded, you don’t say that the state procedures under (Inaudible) the — it wouldn’t go back for an opportunity on the part of the State to make a return.

Irwin L. Langbein:

Do you mean, Mr. Justice, that I should expect my boy to walk out of Raiford?

Felix Frankfurter:

No, no.

I’m — I’m assuming the opposite.

That you agree with Mr. Jaffry that what the Court has here, the Court threw this out, Supreme Court of Florida, on its face, on the basis of what — they’re saying there’s nothing to it.

Now, what a reversal would mean is that there is something to it and therefore the State has a right to make its return to show on the fact, perhaps by the trial minute that there’s nothing to it.

Irwin L. Langbein:

Yes, this Court would in effect have overruled the demurrer.

Felix Frankfurter:

That’s right.

Earl Warren:

Mr. Langbein, on behalf of the Court, I would like to express our appreciation to you for accepting this assignment and for — for representing this indigent defendant in the — in the very efficient and clear manner in which you have done it.

And, Mr. Jaffry, may I — may I thank you, sir, for the very fair and — manner in which you presented the issue on behalf of State of — of Florida and also for your frankness, entire frankness with this Court.

It’s refreshing to us to see proceeding carried on in this frank manner by both sides.

Irwin L. Langbein:

Thank you.