Demarest v. Manspeaker – Oral Argument – November 06, 1990

Media for Demarest v. Manspeaker

Audio Transcription for Opinion Announcement – January 08, 1991 in Demarest v. Manspeaker

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William H. Rehnquist:

We’ll hear argument now in No. 89-5916, Richard Demarest v. James Manspeaker.

Mr. Scarboro, you may proceed.

James E. Scarboro:

Mr. Chief Justice, and may it please the Court:

The question presented for review in this case is whether a convicted prisoner who is summoned to appear as a witness in a proceeding in the court in the United States is entitled to a witness fee pursuant to 28 United States Code, section 1821–

Harry A. Blackmun:

This was a convicted State prisoner?

James E. Scarboro:

–That’s correct, Your Honor… for the time that that person spends in attendance at a court of the United States.

The petitioner here, Richard Demarest, was in 1988 and continues to be a prisoner incarcerated in the State of Colorado, by the State of Colorado.

In March of 1988, Judge Jim Carrigan of the United States District Court in Denver issued a writ of habeas corpus ad testificandum by which Mr. Demarest was transported from prison in Crawley, Colorado to Denver County jail where he remained for a little more than a month.

During 8 days of that period the trial in the underlying criminal case took place.

On one of those days Mr. Demarest testified as a witness for the defense.

When the case was over Mr. Demarest made an application to the deputy clerk in the district court to certify his entitlement to a witness fee pursuant to 28 United States Code, section 1825.

That is the statute that governs the procedure whereby a witness applies for a fee when the witness is being paid by the United States.

William H. Rehnquist:

Do you mean when the witness… the United States would pay the fee in this case?

James E. Scarboro:

That’s correct, Your Honor.

William H. Rehnquist:

What, because, what… that’s because of this provision of 1825?

James E. Scarboro:

That’s correct, Your Honor.

There are several related provisions involved.

One is 1821, which provides generally that witnesses are entitled to a fee.

Another is section 1825 which sets forth the procedure for receiving payment of a fee when the witness is being paid by the United States.

William H. Rehnquist:

And when does it say the witness shall be paid by the United States?

James E. Scarboro:

In a case in which the United States is a party and the, the… in the case of a witness for the United States by the United States; in the case of a defense witness when the fees cannot be paid by the defendant or the party.

William H. Rehnquist:

And this was, this was a Federal trial in the, in the district court?

James E. Scarboro:

That’s correct, Your Honor.

And just, just to–

Thurgood Marshall:

Mr. Scarboro?

James E. Scarboro:

–Yes?

Thurgood Marshall:

If it’s an ordinary witness does he pay his own travel or does somebody pay his travel?

James E. Scarboro:

No, in the ordinary case, Your Honor, if a person is going to serve as a witness in a case and the parties are able to pay the fee, you tender a witness fee and travel expenses to the witness when you serve the subpoena.

That’s what happens in the ordinary case.

Thurgood Marshall:

A fee plus travel.

James E. Scarboro:

That’s correct.

Thurgood Marshall:

Now, in this case the Government paid travel?

James E. Scarboro:

In this case the State of Colorado or the United States Government.

I don’t know which paid for the travel.

That’s right.

Thurgood Marshall:

Well, he didn’t pay it.

James E. Scarboro:

That’s correct.

He did not, Your Honor.

Thurgood Marshall:

Who paid his food?

James E. Scarboro:

It was paid by the Denver County Jail, I assume.

The fact is not–

Thurgood Marshall:

So the county jail fed him.

James E. Scarboro:

–That’s correct.

Thurgood Marshall:

So his out-of-pocket expenses were zero?

James E. Scarboro:

That’s correct.

And he is not asserting any right to expenses in this case.

There is a specific provision in the statute in section 1821 and subsections (c) and (d) which entitle a witness to reimbursement for expenses.

Mr. Demarest is not seeking reimbursement for any expenses.

What he is seeking is a witness… the payment of the $30 per day witness fee pursuant to subsection a(1) of section 1821 which provides for the payment of those fees.

Mr. Demarest made his application to the clerk of the court in Denver–

John Paul Stevens:

–May I ask you… was he a defense witness or a prosecution witness?

James E. Scarboro:

Defense witness, Your Honor.

John Paul Stevens:

He was a defense witness.

James E. Scarboro:

Mr. Demarest made his application to the clerk and the clerk referred the request to the assistant United States attorney.

The assistant United States attorney denied the request on the ground that Mr. Demarest was a convicted prisoner and therefore unentitled to receive a witness fee.

Mr. Demarest, proceeding on his own behalf, thereafter filed this lawsuit.

And he sued both the clerk and the deputy clerk seeking to compel them to pay to certify his entitlement to a fee, which then would be paid by the United States Marshal.

Sandra Day O’Connor:

Mr. Scarboro, the Government says that a witness has to be subpoenaed under the statute before he can be deemed to be in attendance under the terms of the statute.

James E. Scarboro:

That’s correct, Your Honor.

That is the technical argument that the Government makes with regard to the meaning of the statute.

James E. Scarboro:

Mr. Demarest’s position is very simple and that is that if this statute means what it says, he is a witness and he was in attendance in at a court of the United States and served as a witness.

If the words in attendance mean someone who appears and gives testimony, then he is that person.

He also served as a witness as we ordinarily understand the meaning of the word witness.

The Government makes a technical argument with regard to the language in attendance and says that Mr. Demarest was not in attendance because he wasn’t personally subpoenaed.

Instead he appeared pursuant to a writ of habeas corpus ad testificandum.

That’s accurate.

He did appear pursuant to that, to that writ.

Section 1821 doesn’t mention the word subpoena.

Never uses it.

Section 1821 doesn’t define the word in attendance except to say, in attendance.

John Paul Stevens:

But section 1825 uses the term subpoena?

James E. Scarboro:

Yes, yes, it does.

It does use the word subpoena, Your Honor.

That word is used in section 1825 in the following way.

Section 1825 first sets out how a witness for the Government, in a case where the Government is a party, is to be paid when the person is being paid by the United States.

Then the statute goes on to say, in the case of defense witnesses summoned pursuant to a subpoena, the following procedure shall be used for payment.

The word subpoena is not defined in section 1825 but I submit that all it means, that the common sense of it is, that there be some kind of formal process by which a court certifies that–

John Paul Stevens:

Well, are you, are you now arguing that a writ of habeas corpus ad testificandum is a subpoena within the meaning of this section?

James E. Scarboro:

–Yes, Your Honor.

Certainly… I certainly–

John Paul Stevens:

So we’re getting a little bit away from pure plain language now.

James E. Scarboro:

–Yeah, well, Your Honor, perhaps we, we are.

John Paul Stevens:

Yeah.

James E. Scarboro:

The word subpoena also appears in Federal Rule of Criminal Procedures 17(a).

That’s the rule whereby a court… that requires a court to order, to issue subpoenas for the attendance of witnesses in criminal trials.

John Paul Stevens:

What do you say with respect to a volunteer witness?

James E. Scarboro:

Your Honor, I would say that a volunteer witness ought to be paid.

I know there are… yes–

John Paul Stevens:

Well, maybe he ought to be but the statute requires it–

James E. Scarboro:

–In, in–

John Paul Stevens:

–because he’s in attendance.

James E. Scarboro:

–In my view, Your Honor, the… in the first place, it’s not necessary to answer that question in order to decide this case we submit, because Mr. Demarest did appear pursuant to a formal procedure.

Judge Carrigan–

John Paul Stevens:

I see.

James E. Scarboro:

–issued an order that gave him oversight, judicial oversight over the proceedings.

There are cases in the lower court cases, district court cases, that have held even… that even a witness who appears voluntarily is entitled to receive a fee.

That seems to me to be the better view.

But it’s not necessary to decide that question–

Antonin Scalia:

What does… what does in attendance mean in, in that event.

I thought… I was going to ask you what you thought… I, I assumed in a subpoena in attendance might mean the dates set forth in the subpoena.

You’re in attendance on those days, but if you’re coming voluntarily you know, suppose you… you don’t know how long the trial is going to be.

You come.

You hang around for… it’s only the days you appear, or are those the only days?

James E. Scarboro:

–This is, this Court has held that in attendance in Hurtado, the 1973 opinion from this Court which is the only case construing section 1821 that in attendance refers to the time spent in readiness to testify while the trial is taking place.

Antonin Scalia:

So if you choose to come 5 days early, so long as the trial is going on at that time, you’re in attendance.

James E. Scarboro:

As you know when you’re trying a case, Your Honor, some… you may subpoena–

Antonin Scalia:

Right.

James E. Scarboro:

–witnesses for the opening day of trial.

You may–

Antonin Scalia:

Sure.

James E. Scarboro:

–you may subpoena them for the opening day of defense.

It’s hard to know when exactly they’ll be, they’ll be required to attend, but the time they spend away from their ordinary occupations and in readiness to testify, as I understand this Court’s opinion in Hurtado, they’re in attendance.

And incidentally the… the Congress subsequently amended section 1821 to incorporate the Hurtado ruling and, it seemed to me, adopted that view of the word in attendance.

Byron R. White:

Well, the technical arguments made by the Government weren’t made below, were they?

James E. Scarboro:

They were not.

There, there were no opinions.

The, there is nothing about section 1825 in the Tenth Circuit Court of Appeals’ opinion or in the district court opinion.

And as I understand this Court’s ordinary rule, when certiorari is not granted to review a particular question and the issue has not been either raised or decided below, the Court will not ordinarily reach out to decide it.

The Government does not, as far as I can tell, offer any special reasons–

Byron R. White:

Well, the respondent can, the respondent can ask the Court to decide a case on another ground.

James E. Scarboro:

–The respondent can always–

Byron R. White:

If the record does… supports it.

But a respondent–

James E. Scarboro:

–Yes, Your Honor.

The respondent can always ask.

William H. Rehnquist:

–A respondent is also expected to raise any nonjurisdictional objections to reaching the question presented in the motion… the brief in opposition to certiorari.

James E. Scarboro:

That’s correct, Your Honor, and it was not raised in the brief in opposition to certiorari.

David H. Souter:

If we construe–

James E. Scarboro:

It seems only… excuse me, sir.

David H. Souter:

–If we construed subpoena to mean only subpoena would that… and imposed in effect the subpoena requirement as the Government argues, would that be consistent in every respect with the practice which is actually obtained?

James E. Scarboro:

It depends on what you mean by the practice, Your Honor.

The Government has taken–

David H. Souter:

I think you probably know more about that than I do, so I’m going to let you define that.

James E. Scarboro:

–Okay, the Government has taken the position, at least with regard to prisoner witnesses, that there… that they do not ever pay the fees of prisoner witnesses.

Those persons are not–

David H. Souter:

Regardless of who calls them?

James E. Scarboro:

–Yes, that’s my understanding, Your Honor.

David H. Souter:

Umm.

James E. Scarboro:

If you mean the practice as employed by the courts under rule 17(a), the rule of criminal procedure, that, that by which courts issue subpoenas.

The courts routinely issue writs of habeas corpus ad testificandum pursuant to rule 17 as well as subpoenas directed to individuals who are free to move about.

As Judge Ebel said dissenting below in this case, suppose the case of a person who is in a mental hospital, a mental institution is not free to go.

That person may not be personally subpoenaed.

That person may be brought to court by virtue of a process other than one entitled a subpoena.

Is that person not entitled to receive a witness fee?

Or suppose–

John Paul Stevens:

What other, what other process would it be for a person?

I don’t understand why a person in a mental hospital has no special process for–

James E. Scarboro:

–It might be a writ of habeas corpus, Your Honor.

John Paul Stevens:

–Oh, then they’d be comparable to this–

James E. Scarboro:

Yes.

John Paul Stevens:

–if they’re in custody.

James E. Scarboro:

And then–

John Paul Stevens:

But not if they’re in a private mental institution I don’t suppose?

James E. Scarboro:

–Probably not.

John Paul Stevens:

No.

But you’re just saying if they… in a different area of Government custody.

I don’t know why that’s a different case than this one.

James E. Scarboro:

I don’t either, Your Honor.

But I take it the Government’s position would be that person is not entitled to a fee.

John Paul Stevens:

Correct.

James E. Scarboro:

For example, in the case of a witness who was detained because he’s unable to post a bond for his own trial which is coming up and is then subpoenaed for it or is compelled to attend as a witness in another trial.

Is he unentitled to a fee because he’s not going to be personally subpoenaed?

He’s going to be, he’s going to be compelled… his jailer is going to be compelled–

John Paul Stevens:

Well, you raise an interesting question… what about the defendant in his own trial?

Is he in attendance?

And does he get a fee?

James E. Scarboro:

–The defendant–

John Paul Stevens:

I don’t think he does.

James E. Scarboro:

–in his own trial is, is, I would say he’s in attendance.

John Paul Stevens:

But they’ve never paid them fees.

James E. Scarboro:

That’s right, Your Honor.

The normal understanding of the word witness is to the best of my knowledge a person who is not a party but a person who attends a trial of a party and testifies.

It’s also true literally that a person who is a party may testify.

John Paul Stevens:

You say that the… when a defendant is testifying the defendant is not a witness within the meaning of the statute?

James E. Scarboro:

That’s correct, Your Honor, not with the meaning of 1821.

It seems to me that the Government’s position in this case rests not really upon these linguistic distinctions about the words in attendance and witness, but instead about… on a perception of the purpose of this statute combined with administrative practice, and I would like to spend just a few moments dealing with those two, I think, more central points.

The argument is made by respondents from the legislative history of this statute that its purpose is to compensate the average witness for the time that that witness spends testifying and the costs that the witness incurs.

From this the Government leaps to what I think is a remarkable conclusion and that is–

William H. Rehnquist:

Cost, Mr. Scarboro, in the sense of loss of income and that sort of thing?

James E. Scarboro:

–Yes.

James E. Scarboro:

Two kinds of costs, Your Honor.

One would be lost income.

The other would be out of pocket expenses some of which are reimbursed but as a practical matter probably all are not.

William H. Rehnquist:

The, the… don’t witnesses get some sort of reimbursement for… for travel?

James E. Scarboro:

Yes, they do, Your Honor and subsections (c) and (d) of section 1821 deal with the situation in which you can… a witness is entitled to receive actual reimbursement for certain kinds of transportation and entitled to an allowance–

William H. Rehnquist:

Subsistence.

James E. Scarboro:

–A subsistence allowance depending on other needs.

Byron R. White:

But here what, which of the purposes, if any, of having a witness fee was incurred by this defendant?

James E. Scarboro:

That… I–

Byron R. White:

He wasn’t out-of-pocket in this instance.

James E. Scarboro:

–That, that’s, that’s what I wanted to turn to, Justice White, and the point is simply this, that the Government says it wouldn’t serve any purpose to compensate a person like Mr. Demarest.

He incurs no costs.

He is not losing any compensation.

Incidentally, that’s not a point that is established in this record.

It is known from this record whether, whether Mr. Demarest worked in the prison, if so, whether he made wages, and if he made wages whether he lost them when he was transported to Denver County jail to testify.

But be that as it may, it seems to me that the Government’s methodology stands the ordinary principles of statutory construction that have been announced by this Court in case after case after case on, on its head.

And by that I mean that ordinarily this Court has said a supposed purpose is not used to override the plain meaning of a statute when the words are clear and the reason for that is that ordinarily the meaning that Congress intended, its purpose, is to be understood from the language it uses.

Congress doesn’t speak in terms of purposes.

It speaks in terms of legislative commands and it is those legislative commands that are ordinarily the best evidence about what Congress intended.

Furthermore, there is nothing inconsistent between the purpose that the Government supposes Congress had and paying a fee to convicted prisoners.

And the reason is this.

Congress was undoubtedly aware that people do not suffer the same kinds of economic losses or lose the same amount of compensation for testifying.

Congress undoubtedly was aware that many people don’t lose money at all, people who live on fixed incomes, people who are… who survive by independent means.

There are all kinds of people who do not necessarily suffer any economic loss by virtue of testifying, but the statute simply says all witnesses, a witness is entitled to a fee.

Antonin Scalia:

Mr. Scarboro, how do you… what is your explanation of 1825(a)?

Let’s assume that we agree with you that they’re entitled to a fee.

1825(a) says what procedures, what certifications are needed with respect to those witnesses entitled to fees who have been subpoenaed.

Now what about witnesses who haven’t been subpoenaed?

James E. Scarboro:

It’s not clear from section 1825 at all.

Antonin Scalia:

Which is peculiar.

James E. Scarboro:

Yes, it’s very… section 1825 is… has got a lot of problems if you look at a variety of situations.

For example, it might be that a witness that does not appear pursuant to a subpoena is required to be paid by the United States without regard to these requirements.

Antonin Scalia:

Yes, well, I, I would say that is some indication that a witness who is not subpoenaed is not to be paid fees period since there’s no provision for how they’re to be paid.

If there’s any ambiguity about whether nonsubpoenaed witnesses get fees, I’d say that certainly indicates how that ambiguity ought to be resolved, wouldn’t you think?

James E. Scarboro:

That’s possible, Your Honor, but it seems to me that the main point ought to be what is intended by the use of the word subpoena in this statute, in, in section 1825.

The same word appears in section 17(a), exactly the same word.

Courts routinely issue writs of habeas corpus ad testificandum pursuant to, to 17(a).

There’s… no distinction is made between personal subpoenas and subpoenas directed at the custodian of an individual who’s going to be produced for a trial.

It seems to me that the purpose of this language if, if… the idea being expressed is that there is some kind of formal process, judicial oversight, if you will, that enables a court to screen the number of people who are called as witnesses and determine that they are material and necessary–

Antonin Scalia:

So we should construe 1825 according to its purpose, but not 1821?

James E. Scarboro:

–I don’t think you should construe 1825 at all, Your Honor.

It’s not within the grant.

It wasn’t reached below.

It was an argument made for the first time in the briefs and the merits.

Antonin Scalia:

But–

James E. Scarboro:

All the Government–

William H. Rehnquist:

–But we could nonetheless take it into consideration along with 1821 if we feel it’s relevant, I suppose, in deciding the question presented.

James E. Scarboro:

–Certainly.

Certainly.

William H. Rehnquist:

Mr. Scarboro, would I be helping you out if I suggested that 1825(a) was directed not to the question of who gets paid, but to the question of who has to issue the certificate, which is a condition precedent to being paid and that, and that it is with respect to certain defense witnesses subpoenaed that there is a distinction made about the issuance of the certificate as evidence for the payment and that that’s the only thing that 25(a) is directed to.

James E. Scarboro:

That is a possible reading of section 1825, Your Honor.

David H. Souter:

Can you think of a better one from your side right now?

James E. Scarboro:

Certainly, it sounds so to me, Your Honor.

David H. Souter:

Okay.

James E. Scarboro:

I want to underscore, it… that this Court in Hurtado… the Government… one of the cases, the principal case the Government relies upon for its, its definition of the word in attendance is Hurtado against the United States.

And in Hurtado this Court held that the alien witnesses were in attendance.

You will recall that in that case, the, the alien witnesses had been arrested for failure to post a bond pursuant to formal rule of criminal procedure 46, incarcerated by the United States Marshal and produced by the Marshal at the trial.

They were not personally subpoenaed any more than Mr. Demarest was personally subpoenaed.

They were detained witnesses.

It just seems to me farfetched to think that Congress in section 1821, not having used the word subpoena at all and using the word in attendance we presume in its common sense and ordinary meaning, intended to require a document with a particular label, an instrument with a particular label before a witness is entitled to receive a fee.

Byron R. White:

Mr. Scarboro, did Mr. Demarest think up this claim by himself?

James E. Scarboro:

Yes, he did, Your Honor, he thought it up all by himself.

I guess.

I mean there are… have there been any prior occasions?

Yes, there have.

Byron R. White:

And there… has, has ever… has a prisoner ever been paid a witness fee?

James E. Scarboro:

Yes, actually prisoners have been paid witness fees and there’s a 1939 comptroller opinion in which the United States Marshal paid 3 prisoner witnesses a fee and then got into trouble getting reimbursement.

William H. Rehnquist:

We’ll resume at 1:00.

We’ll resume argument now in Demarest against Manspeaker.

Mr. Scarboro.

James E. Scarboro:

Thank you, Chief Justice.

I just have a couple more points that I’d like to make and then I will sit down.

I want to make a couple of points about the purpose of this statute.

We left off before lunch talking to some extent about the purpose of the law.

The language of section (a)(1), of section 1821, 28 United States Code, states as follows:

“Except as otherwise provided by law, a witness in attendance at any court of the United States. “

and here I’m skipping a bit,

“shall be paid the fees and allowances provided by this section. “

Congress does not state witnesses who lose compensation shall be entitled to a fee.

Congress does not state witnesses who incur certain kinds of expenses.

It simply says witnesses.

Mr. Demarest may not be the average witness.

He may not have incurred out of pocket expenses.

He may or may not have actually lost compensation, but that fact I submit entitles him no less to a fee than it does to other classes of people who suffer no loss either in compensation or expenses and there are many such classes of people that immediately come to mind, including people living on retirement incomes, people living on fixed incomes, many others.

Very often employers–

People who have no income.

James E. Scarboro:

–People who have no income.

People… very often employers actually continue to pay wages to their employees even though those employees are taking a day to serve as a witness in a case.

There are many good reasons why Congress may have chosen to legislate in an overinclusive fashion or in a generality, such as the use of the word witness, including administrative convenience and there may have been another reason.

Members of Congress may have felt that witnesses are… should receive some token compensation for acting as a witness in a court case.

James E. Scarboro:

It might improve–

John Paul Stevens:

But on that point… I’m just curious… well, you point out in your brief at page 37 that back in the earlier days, the prison inmates forfeited all their rights and their time and services belonged entirely to the Government.

That was the prevailing view.

If that was the view of Congress when this statute was addressed… drafted, which way does that cut?

James E. Scarboro:

–The statute has been, of course, amended 11 times since its original adoption in 1792.

As we understand it, prisoners could not even testify.

They, they were infamous persons.

There were lots of categories of people who could not testify and convicted prisoner was one such category.

That disability which existed at common law in various States and under Federal law fell away over the period from 1850 to 1920.

During that period of time, of course, Congress amended this statute.

And it seems to me the best operating assumption is that whatever witnesses are competent to testify under the laws evidence to be witnesses are, are to be included in the term witness.

Otherwise it would be necessary to go back over this entire history and to go through categories of witnesses of, of, for example, children… people… atheists, there were all kinds of categories of disability… and go through each of those categories one by one and decide whether Congress intended to include or exclude them.

There’s nothing in the legislative history of this statute that provides one scintilla of evidence that Congress ever intended to exclude convicted prisoners from–

Antonin Scalia:

Children get $30 a day, by the way?

Do children get–

James E. Scarboro:

–Children?

Antonin Scalia:

–Yes.

James E. Scarboro:

I don’t know the answer to that question.

I assume if they’re witnesses, they would.

But I don’t know.

It just seems to me that it is–

Thurgood Marshall:

Mr. Scarboro–

James E. Scarboro:

–Yes?

Thurgood Marshall:

–If he is there for 10 days and doesn’t testify–

James E. Scarboro:

That’s correct, Your Honor.

Thurgood Marshall:

–he would get 300 bucks.

James E. Scarboro:

That’s correct.

And that’s what he sought.

He sought $300.

Thurgood Marshall:

That’s good work if they’re paying him.

James E. Scarboro:

Well, he was doing as well as he could, I guess.

He, he, he was very careful to try to follow this Court’s opinion in Hurtado.

This Court’s opinion in Hurtado said that you’re in attendance even though you’re not testifying when you’re in readiness to testify and, and that’s the only claim he made.

Byron R. White:

You would think this would have been settled long ago, Mr. Scarboro, but this is one of the few people who had the nerve to make this claim I suppose.

[Laughter]

But has it ever been adjudicated before?

James E. Scarboro:

It has been adjudicated, Your Honor.

There–

Byron R. White:

But in his favor?

James E. Scarboro:

–Not adjudicated in his favor, Your Honor, no, it has not.

Byron R. White:

What?

James E. Scarboro:

No, it has not ever been adjudicated in his favor.

Byron R. White:

It’s been adjudicated not in his favor?

James E. Scarboro:

That’s correct.

Byron R. White:

Many times?

James E. Scarboro:

Five times.

Byron R. White:

Five times, especially when Congress is amending the law?

James E. Scarboro:

Most, the most recent… the oldest opinion is 1970.

All of the opinions take place between 1970 and 1986, I believe.

Byron R. White:

Well, has the, has the, the practice was up til… maybe up til now not to pay these fees.

Congress must have known that when it was amending the law.

James E. Scarboro:

There is not one bit of evidence that Congress knew anything about it.

Byron R. White:

Okay.

James E. Scarboro:

The, the Government does make the point here that there have been 200 years of unbroken, consistent administrative practice.

It seems to me that that’s quite an exaggeration.

The idea–

Byron R. White:

You mean it’s 190?

[Laughter]

James E. Scarboro:

–Well, no–

[Laughter]

Byron R. White:

198, 198.

James E. Scarboro:

There may have been an incident occurring every other decade, Your Honor, that could have come to the attention of Congress.

There’s a handful of judicial opinions and a handful of administrative opinions.

This is not the sort of thing that made the front headlines of the newspaper, the sort of thing that is apt to have come to the attention of Congress.

And indeed there is no evidence in the legislative history that this ever came to the attention of Congress.

As I understand this Court… as I understand the Government’s position… I’m not sure I do, but I, but I think I do… in 1978 when Congress last amended the statute, there existed such an unbroken line of administrative determinations that Congress’ failure to explicitly provide that convicted prisoners may receive a fee was in effect an amendment of the statute to adopt an administrative interpretation that convicted prisoners may not receive a fee.

As I read this Court’s cases and the cases cited by the Government in support of this, this idea of congressional acquiescence, some link is required between the practice and Congress’ knowledge.

Indeed, this Court’s cases I think are, are, are… require much more than knowledge.

They require some kind of substantial evidence of oversight, of adoption, of, of approval of the administrative practice.

There is no such evidence in this case.

This is a statute addressed to the courts.

It’s not a statute that is addressed peculiarly to an administrative agency.

It’s, it’s the business of the courts to interpret it.

William H. Rehnquist:

Thank you, Mr. Scarboro.

Mr. Lazerwitz, we’ll hear now from you.

Michael R. Lazerwitz:

Thank you, Mr. Chief Justice, and may it please the Court:

Witnesses in Federal, and State court proceedings for that matter, have received a modest fee for their service since at least the days of the first Congress.

But despite such a 200-year record, no one has been able to find a single instance in either Federal or State practice where a convicted prisoner lawfully and properly received a witness fee.

Petitioner would write off this record as–

Antonin Scalia:

Excuse me, there, there was an instance as I record where they received a witness fee, three of them in the, the–

Michael R. Lazerwitz:

–Yes, in 1939 the Marshal’s service mistakenly provided witness fees to convicted prisoners.

Antonin Scalia:

–Or correctly did so and did, and did not do so mistakenly in all the other instances, as the case the may be.

[Laughter]

Michael R. Lazerwitz:

Well, we think that, we think that you should not write off this practice as nothing more than one of the longest running violations of a statute’s plain meaning in our legal history.

Instead, we submit that a closer look at the statute and the historical record shows the opposite is the case.

As currently enacted, the Federal witness fee statute provides that fees and allowances… excuse me, allowances shall be paid to witnesses in attendance at Federal court proceedings.

And the particular question here is whether petitioner, a convicted state prisoner, is entitled to receive the fees under the statute where he testified in a Federal criminal case.

In our view, petitioner is not entitled to receive the fees under the statute because he was not in attendance within the meaning of the statute.

As the statute’s structure and history suggests, in attendance means more than just being there.

It also includes the process under which the witness appears in court.

Michael R. Lazerwitz:

A prisoner such as petitioner appears in court under a particular process directed to his custodian and that process is the writ of habeas corpus ad testificandum.

In other words, in attendance in this statute means a witness who has been summoned to appear, summoned himself, and who then makes himself available and complies with that process.

William H. Rehnquist:

I suppose that–

Michael R. Lazerwitz:

Excuse me.

William H. Rehnquist:

–Why do you read that much into the phrase in attendance?

Michael R. Lazerwitz:

Mr. Chief Justice, we read the statute in that way for a number of reasons.

One, it is… we start with the language of the statute and second, the structure of the statute, the structure of section 1821 and 1825 which does not drop out of this case, not withstanding our failure to raise the point in our brief and opposition that petitioner doesn’t qualify to receive the certificate because of his default.

1825 speaks in terms of subpoenas and a subpoena is the ordinary process for summoning witnesses to court.

David H. Souter:

Well, Mr. Lazerwitz, may I ask you two questions about that?

The first is the same one which I, I asked your brother before lunch and I, I in a way I made it, I guess a made a dangerous move in doing that because I just looked at the statute again and it struck me that it might simply be addressing the question of who has to certify that the witness was there as opposed to who has to… as opposed to identifying the kind of witness or the process by which it… a witness may be identified as compensable.

Do you think that is a sound analysis or a sound suggestion?

Michael R. Lazerwitz:

It’s a sound, but one that we don’t agree with for these reasons.

1825 speaks in terms of… it’s the procedure for paying the witness.

How does a witness get paid?

You can’t be so… 1825 relates to 1821.

If you’re a witness… the only parties that 1825 speaks about… it’s not parties but persens… are those who would otherwise qualify under 1821.

It doesn’t make sense to provide for payment of fees under 1821 that do not establish a procedure.

The statutes should be read together which makes, makes sense to us.

David H. Souter:

Well, what I’m, what I’m suggesting is that the procedure that 1825 addresses may well be simply a procedure for distinguishing some witnesses who cannot be paid without the certification of a public defender or a clerk of court as opposed to witnesses who may be paid on certification of a United States Marshal.

Michael R. Lazerwitz:

Well, that’s true because in 1825(a) you’ll notice that there’s no provision for paying… when the Government subpoenas a witness the same requirements don’t obtain.

David H. Souter:

So, I guess what that… well, that leads to my second question and that is on your reading, which if I understand it correctly is that there must a subpoena before a defense witness may be paid, that would still allow the payment of a defense witness… I’m sorry, that would still allow for the payment of the witness fee to a prisoner called by the Government, wouldn’t it?

Michael R. Lazerwitz:

No, and let me explain why.

First of all, 1825… there are two separate questions and one is… the first question, the first point that we raise in our brief, admittedly belatedly, which is whether this particular witness… we do concede that Mr. Demarest was a witness… presented the right pieces of paper to be paid.

The second question, and the broader question that’s before this Court, is what is the meaning of 1821, and we submit that it makes sense to look at section 1825, the procedures, in order to understand what Congress was dealing with in section 1821.

And the use of the word subpoena and again this… there are no smoking guns in this case for our position.

We are trying to piece together what’s out there and understand the statute.

And the fact that there’s been this 200-year practice, starting with the first witness fee statute, suggests to us that you can’t write this case off out of plain meaning.

David H. Souter:

Well, fair enough, but the administrative practice issue is the, is really a separate argument.

Isn’t it true that the only textual basis that you have for distinguishing between some prisoners, at least, and nonprisoner witnesses is the language of 1825(a).

You have no other textual basis for doing that, do you?

Michael R. Lazerwitz:

Well, our textual basis is in 1821, which is in attendance.

And we can–

David H. Souter:

But you’re then, as I understand it, you’re defining in attendance by reference to the process by which the person comes into attendance and that’s why you place the emphasis on the need for a subpoena for a defense witness as indicated in 1825.

Michael R. Lazerwitz:

–That’s, that’s part of it, Justice Souter.

But our position is somewhat… is broader and that is, it’s not… I don’t want to mislead the Court, but our position is if you have a subpoena, you get paid.

If you don’t, you don’t get paid.

It’s a little bit more subtle than that.

David H. Souter:

Then, then why don’t you forget 1825 completely.

Michael R. Lazerwitz:

Because we think 1825 supports our position and helps understand what in attendance means in 1821.

David H. Souter:

Yeah, but if 1825 is supposedly reflecting your theory of what in attendance means, you’ve got to face the fact, haven’t you, that 1825 only refers to defense witnesses, by which I assume they mean witnesses called by the defense, which would lead you to the conclusion that a prisoner called by the Government would get paid and a prisoner called by the defense would not.

Michael R. Lazerwitz:

If all we were relying on were section 1825, then your point would be well taken.

But that’s not all that we’re relying on.

A part from 1825’s reference to subpoenas, and I refer you also to 1825(c) which speaks more generally in terms of subpoenas, we have first of all the, the older statutes.

If yo look at where this statute came from, the earliest witness fee statutes in 1792 and 1799 spoke in terms of summoning witnesses.

Summoning is the ordinary… summoning means subpoenaing a witness.

And we know that from Blackstone.

We know that from Contemporary Practice that we cited in our brief.

Congress then changed to the word attend, and it did so in 1796, but then returned to the word summoned in 1799.

Thurgood Marshall:

Did it ever put a subpoenaed witness, quote and unquote?

Michael R. Lazerwitz:

No, Justice Marshall, no.

Thurgood Marshall:

Well, don’t you need that for your argument?

Michael R. Lazerwitz:

It would make it easier, but we don’t think we need it.

Thurgood Marshall:

Don’t you need it?

Michael R. Lazerwitz:

It would help.

Thurgood Marshall:

The statute just says witness.

Michael R. Lazerwitz:

The statute says witness in attendance.

Thurgood Marshall:

And witness is witness.

With or with… if a witness walks in out of the street and says I’d like to talk.

If the judge let’s him talk, that’s a witness.

Michael R. Lazerwitz:

Well, one of the reason’s why we think it’s not that–

Thurgood Marshall:

Is it not?

Michael R. Lazerwitz:

–Yes, that’s true, Justice Marshall.

Thurgood Marshall:

And nobody called him.

He just volunteered.

Michael R. Lazerwitz:

And he would not be entitled to receive the fees under our position.

Thurgood Marshall:

Why not, under your rule?

Michael R. Lazerwitz:

Because he again–

Thurgood Marshall:

Why not?

Michael R. Lazerwitz:

–and going back to the hypothetical that was raised this morning before lunch.

Take the example of a party.

The party testifies in his own behalf.

It’s been settled and no one disputes, including petitioner, that a party witness is not entitled to the fees.

Petitioner would defend that result by saying that a party is not a witness.

Thurgood Marshall:

We’re not talking about parties.

We’re talking about the Government and defendants.

Michael R. Lazerwitz:

Yes, Justice Marshall.

I’m trying to show that the statute’s plain terms are in… are more ambiguous than at first glance.

Now we submit that a party witness isn’t entitled to the fee not because he isn’t a witness, because of course he’s a witness.

He testifies in court.

That’s what a witness does.

But because he is not summoned to court–

Thurgood Marshall:

Where did he… where did you get that out of the statute?

The statute says witness.

Michael R. Lazerwitz:

–It says witness in attendance.

Thurgood Marshall:

You know what a witness is and I know what a witness is.

Michael R. Lazerwitz:

Yes, I do.

Thurgood Marshall:

And everybody in town knows.

And it applies to about 25 different types, those who are subpoenaed, those who volunteer, those who are a party, those who testify under the, the writ.

In all, they didn’t draw the line.

You’ve drawn the line, and when you talk about how this never came up before, I don’t know too many lawyers who will take a case that involves $30.

Thurgood Marshall:

[Laughter]

Michael R. Lazerwitz:

I don’t know either, Justice Marshall.

Thurgood Marshall:

All right.

Michael R. Lazerwitz:

The fact that there’s been this consistent practice requires us… consistent practice, not just administratively but from the courts and through history, suggests that there’s something more going on here.

Antonin Scalia:

Mr. Lazerwitz, is, is the practice consistent as… with your entire theory?

That is to say, has it always been the practice uniformly not to pay witnesses unless they are subpoenaed?

Michael R. Lazerwitz:

No, and let me–

Antonin Scalia:

Ah.

Michael R. Lazerwitz:

–let me clarify this, the apparent preoccupation with subpoena.

Byron R. White:

That’s your preoccupation.

Michael R. Lazerwitz:

No, it’s not.

Our preoccupation is with process.

And it’s the particular process.

The ordinary process for getting a witness to appear in court happens to be a subpoena.

But for example, let’s say the assistant United States attorney needs a witness to come down to court tomorrow.

He doesn’t have the opportunity to subpoena him.

He calls him up and says, I want you here in court tomorrow and the witness, the man appears in court tomorrow.

He is entitled to a witness fee, because the process, although he doesn’t have the piece of paper in his hand, he is summoned by the equivalent, so to speak, of a subpoena to appear in court and he complies with that subpoena.

Byron R. White:

Well, is it the same if the defendant calls up his friend and says, come on down and testify for me and he shows up?

Michael R. Lazerwitz:

He would be a witness.

The problem he would face would be 1825, the procedure for–

Byron R. White:

Well, your answer is that wouldn’t be process that you’re talking about even though he just uses the phone like the prosecutor does.

Michael R. Lazerwitz:

–If that case occurred, I would imagine that the witness would be able to be paid, but there would be… he would have to have–

Byron R. White:

Despite 1825?

Michael R. Lazerwitz:

–Well, he wouldn’t be paid unless he received the subpoena.

The difference between treating those two situations differently is that–

Antonin Scalia:

You like your witnesses and you don’t like the defense witness.

[Laughter]

Michael R. Lazerwitz:

–No, Justice Scalia, it’s not that at all.

It’s… the Marshal Service is under 1825 pays witness fees and the Marshal Service can rely on the United States attorney that this witness in fact was summoned and he appeared.

Michael R. Lazerwitz:

He doesn’t have that same relationship with the defense attorneys, and so he needs the piece of paper saying that this man in fact was called.

Sandra Day O’Connor:

And why is it that a writ of habeas ad testificandum isn’t a form of compulsory process?

Michael R. Lazerwitz:

It is a form of compulsory process, but it’s not… there is a difference between a writ and a subpoena and what was said this morning was somewhat misleading.

Although we acknowledge that courts under rule 17 use the terms writ and subpoena loosely and interchangeably for that matter, the authority to issue a writ is not rule 17, it’s the habeas corpus statute, 28 U.S.C. 2241 and that’s what… some of the cases that we’ve cited in our brief, I believe the Third Circuit case, United States v. Story, makes that point.

Sandra Day O’Connor:

Well, I don’t see why that’s so critical when you get back to figuring out what in the world 28, 821 means and you haven’t come to grips I think with the provisions in 1821 that say for example a subsistence allowance shall be paid to a witness other than a witness who’s incarcerated and down in subsection (e), an alien who has been paroled and so forth or is deportable is ineligible to receive the fees.

Congress certainly knew how to say who was going to get fees and who wasn’t.

Michael R. Lazerwitz:

Yes, and we think that the way to read the statute and the way, the way we read the statute is to look at (a)(1) and (d)(1) differently.

In (a)(1) the limiting factor is attendance.

In (d)(1), the limiting factor is incarcerated.

For example, if… the two subsections are perfectly consistent, because if (d)(1) didn’t accept incarcerated witnesses, a prisoner witness would be entitled to claim the subsistence allowance.

But that doesn’t mean he’s back in (a)(1), because our submission is he was not in attendance.

Antonin Scalia:

You say he’s, he’s not in attendance unless he’s subpoenaed except that, that if he’s a witness for the prosecution he doesn’t have to be subpoenaed.

That’s, that’s the, that’s the clear meaning you think adheres in attendance?

Michael R. Lazerwitz:

No.

Antonin Scalia:

It means subpoenaed unless it’s a prosecution witness?

Michael R. Lazerwitz:

No, the meaning of in attendance refers to the process by which they’re summoned and that you make yourself available by complying.

Antonin Scalia:

But you say that you don’t have to be summoned at all if you’re going to be a witness for the prosecution.

Michael R. Lazerwitz:

Yes, you are summoned, Justice Scalia.

You may not be summoned by the formal piece of paper in those few instances where that’s not practicable.

But you’re still summoned.

You’ve summoned yourself.

A prisoner witness is in a much different situation.

Antonin Scalia:

It just takes somebody to call me up and summon me?

I mean, I mean could… why can’t the defendant call up somebody and say, I summon you to appear.

The prosecution has no power to summon the person, does it?

Michael R. Lazerwitz:

No, it’s… if you don’t have the subpoena, you can–

Antonin Scalia:

Right.

I mean–

–Try this hypothetical.

They subpoena John Blue.

Antonin Scalia:

They issue a subpoena for him and they find he’s in jail.

And if he was not in jail he would get paid, but if he is in jail, he’s got a subpoena and a writ.

He wouldn’t get paid under your theory.

Michael R. Lazerwitz:

–Yes, Justice Marshall, and–

Thurgood Marshall:

And that makes good sense to who?

[Laughter]

Michael R. Lazerwitz:

–Well, we think it makes good sense because that’s what Congress has enacted and that’s the way it’s been since 1792.

David H. Souter:

Mr. Lazerwitz, may I ask you a specific question about subsection (d)(1)?

That reads, a subsistence allowance shall be paid to a witness other than a witness who was incarcerated when an overnight stay is required at the place of attendance and so on.

As I understand it on your theory, this place of attendance implies that the witness being referred to is one who has been summoned in the manner you describe.

Is that correct?

Michael R. Lazerwitz:

Yes.

David H. Souter:

If that is so, then why isn’t the exception other than the witness who was incarcerated a redundancy?

Michael R. Lazerwitz:

Again–

David H. Souter:

Because it would never apply to such a person.

Michael R. Lazerwitz:

–A witness who was incarcerated… if–

David H. Souter:

Because we have a separate subsection for the witnesses who are detained, so–

Michael R. Lazerwitz:

–Yeah, we–

David H. Souter:

–so this, I assume, can only apply to a witness who is incarcerated as a prisoner or otherwise and it seems to me that on your reading the exception is redundant because such a witness would never be in attendance.

Michael R. Lazerwitz:

–That’s one way of reading it, Justice Souter.

We don’t… again, this is not the most perfectly drafted statute that I’ve ever come across.

David H. Souter:

No, but I, I guess my problem is I don’t see how I can accept your theory of what attendance means without finding a redundancy in the exception.

Michael R. Lazerwitz:

Well, there’s another, there are other witnesses, potential witnesses who need to be excepted under (d)(1).

For example, a witness is subpoenaed to appear, an ordinary witness, who is not in prison.

And he comes to court and he’s housed overnight and for the week while the trial is going on and he ends up in jail on unrelated charges.

He’s otherwise in attendance at that point.

David H. Souter:

Well, on your theory didn’t he start out in attendance but once he gets committed to jail on the unrelated charges, he is no longer?

Michael R. Lazerwitz:

Well, he is in attendance in the sense that he’s, he has complied with the process, he has been summoned, but he’s not entitled to the subsistence allowance because he finds himself in jail.

David H. Souter:

Okay.

Michael R. Lazerwitz:

Again, the… under our reading of the statute, in attendance is critical and does make sense of the rest of the subsections.

Michael R. Lazerwitz:

It takes care of the exclusion for the aliens, because otherwise aliens would, the few aliens–

John Paul Stevens:

Mr. Lazerwitz, let me just go back to Justice Souter’s question.

It seems to me you may have given up more than you should.

Why does the witness have to be one who’s in attendance for that to apply?

Why couldn’t it be a witness who’s not been summoned?

He’s a volunteer witness or he’s the defendant himself.

If the term witness includes witnesses who are in attendance and also the defendant, the defendant is not in attendance within the meaning of your statute because he wasn’t compelled.

Why couldn’t it… why couldn’t that refer to the defendant?

Michael R. Lazerwitz:

–Well, that’s, that’s true, Justice Stevens, and again–

John Paul Stevens:

And also, why couldn’t it also include volunteer witnesses who would not be in attendance under your… but you know you haven’t really answered the question that was put to you earlier.

Is a volunteer witness in attendance or not?

There must be a practice that the Government follows.

Michael R. Lazerwitz:

–The hypothetical, the one I can think of that isn’t so farfetched is the prosecutor’s in court trying a case and at the luncheon recess a guy in the back of the room says, psst, I heard something or I know something.

Put me on the stand.

That person would not be entitled to receive the witness fee because he hasn’t been summoned.

He’s just there.

But he’s willing to testify… that’s fine.

John Paul Stevens:

I bet he normally gets the fee if he wants it.

Michael R. Lazerwitz:

Well, in terms of real practice the… not to make it more informal, but there’s… the distinction is pretty much, on the street, off the street.

The Government goes out of its… will go out of its way to pay witnesses who make an effort or who testify other than those who are excluded from the statute.

John Paul Stevens:

I’m more interested in the volunteer witness for the defense.

His brother comes in and testifies.

You don’t need to subpoena your brother.

Does he get paid or doesn’t he?

Michael R. Lazerwitz:

I think he would, probably in the sense that the same practice that the Government follows.

After he testifies the defense attorney would get him a subpoena and then he–

John Paul Stevens:

It seems to me that really under–

–The Government will pay people that they aren’t authorized to pay.

Michael R. Lazerwitz:

–Well, one example, Justice White, is the prisoners who aren’t convicted.

Now under our construction of the statute those persons fall outside the scope of the statute and under the Department of Justice regulation which draws a distinction between in custody and not, that person would fall out.

Michael R. Lazerwitz:

But in 1900, the Comptroller General drew a distinction between convicted and nonconvicted prisoners and said that if you’re not convicted yet, you’re entitled to the fee.

So it’s not as pristine as we’d like it to be.

There are people that have received witness fees that otherwise perhaps might not.

But–

Thurgood Marshall:

I don’t know whether we’ve gotten it, but you admit that there’s nothing in the legislative history that will help you?

Michael R. Lazerwitz:

–Oh, I think there’s quite a bit in the legislative history that helps.

Thurgood Marshall:

Give me just a little bit of it.

Michael R. Lazerwitz:

Again, in the… the earliest statutes spoke in terms of summoning witnesses, which by definition would exclude–

Thurgood Marshall:

Well, isn’t… wasn’t this witness summoned?

Michael R. Lazerwitz:

–No, Justice Marshall.

Thurgood Marshall:

You don’t say a writ of habeas corpus ad testificandum is not a summons?

It’s, it’s… you just don’t obey one of them and you’ll see what will happens.

[Laughter]

Michael R. Lazerwitz:

Well, actually that points to what–

Thurgood Marshall:

You don’t call that a summons?

No, I mean seriously–

Michael R. Lazerwitz:

–In the sense that it’s process.

But the summons is directed to the custodian and that’s one of the distinguishing features here.

The prisoner has no choice.

He is going to be in court or at the jail outside the court whether he wants to or not.

Thurgood Marshall:

–Isn’t that kind of a subpoena?

Michael R. Lazerwitz:

No, it’s different.

You at least have–

Thurgood Marshall:

Well, you disobey one and you’ll find out.

Michael R. Lazerwitz:

–Yes, you will, but the prisoner doesn’t even have that option unless he goes and… I–

Thurgood Marshall:

Well, then he’s summoned.

Michael R. Lazerwitz:

–He’s… again, we are speaking… we are using words that on the one hand could be termed colloquial.

Thurgood Marshall:

I’m not.

I’m only using the word, one word, witness.

I don’t need any other words.

Thurgood Marshall:

In the case of a prisoner, of a prisoner awaiting trial, who, who is wanted as a witness, you say the Comptroller General’s ruling allows him to be paid?

Michael R. Lazerwitz:

In 1900, he drew that distinction.

William H. Rehnquist:

He would surely have to have a subpoena, a habeas corpus ad testificandum to get… a subpoena wouldn’t do it, I would think.

Michael R. Lazerwitz:

A subpoena would not and again that’s… in terms of where the custodial status of a witness moves away from the convicted prisoner, we do get into a gray area of whether they’re entitled to fees under the statute.

Under our construction of the statute and under the DOJ regulation, if you’re in custody that’s the distinguishing feature.

Custody in the sense of the State’s custody, loss of liberty.

Byron R. White:

Well, do the DOJ, DOJ regulations cover this case?

Michael R. Lazerwitz:

They do, but not in the sense that the… they’re not… we don’t rely on them as a law or for chevron purposes.

Because the department, the Attorney General promulgated those regulations as a matter of, so to speak, housekeeping.

Byron R. White:

Well, that may be, but does the regulation… under the regulation this particular prisoner would not be entitled?

Michael R. Lazerwitz:

He would not be because the only persons in custody who are entitled to receive witness fees are the ones set out in the statute itself.

Byron R. White:

How long has that regulation been in effect?

Michael R. Lazerwitz:

It’s only been… it’s only been promulgated since ’86, but that has been the Department’s practice since, since we can document the practice from… this has been the practice from the 18th century and the practice… if you… the reason why the history is important is the idea of a witness isn’t simply the testimony in court.

We think the process is part and parcel of being a witness and we know that because of the idea of attendance.

Attendance connotes getting there and it brings out the point of the, of the volunteer witness.

And a prisoner is in a much different position from everyone else who can be a witness, because he is going to be at the courthouse whether he wants to or not, whether he’s going to testify or not.

And that’s the distinguishing feature that’s consistent throughout the legislative record and, yes, we don’t have statements in the legislative history that, well, of course, prisoners don’t get paid.

But this has been the practice and the practice we submit stems from the earlier statute.

In terms of policy, the policy is somewhat murky but to look at it from a practical standpoint, today it’s obvious that most prisoners, and convicted prisoners, do work in their penitentiary.

In the Federal system the average pay is 30, 40 cents an hour and you can’t work more than 7 hours a day.

Congress provided the witness fee not only to compensate for the burden of testifying but as some sort of an inducement, as a… it’s your duty.

We will pay you.

It seems somewhat farfetched that Congress would be paying only $30 a day to your ordinary witness and the general category witnesses, which is less than the minimum wage but then turn around and provide that to convicted prisoners, which would be a bonanza.

Antonin Scalia:

Do little children get the witness fees?

Michael R. Lazerwitz:

Yes, they do.

And the Department will usually make special arrangements to pay travel expenses for the child’s guardians or parents.

Antonin Scalia:

Including children who are too young to work under State law I would assume?

Michael R. Lazerwitz:

Yes, including these.

Prisoners, of course, are in a different position.

And in terms of if the Court wishes to look at the policy and how it makes sense, providing this sort of bonanza to prisoner witnesses would, could create disincentives.

Michael R. Lazerwitz:

And the disincentive would be to become a good witness.

I want to be a witness.

I have information to give to the court for both the defense and the Government.

And we… Congress… there’s no reason to assume that Congress wanted to encourage that when we have this unending practice of drawing the distinction between convicted prisoner witnesses and all others.

And we concede that as you get away from these… this… these two ends of the spectrum there are difficulties.

But the one thing we do know and no one has been able to dispute is that convicted prisoners have fallen outside the scope of the statute since the beginning and the reason is, we submit, is the process.

And I don’t want to leave the Court with the impression it’s just a piece of paper calling it a subpoena or a writ, but the process of how the prisoner gets to court.

And because he gets to court differently from everyone else, and differently from the way Congress envisioned witness attendance in 1792 and throughout its history, he’s not entitled to receive that fee under the statute as it’s currently written.

If there are no other questions, thank you.

William H. Rehnquist:

Thank you, Mr. Lazerwitz.

The case is submitted.

The Honorable Court is now adjourned until tomorrow at ten o’clock.