Fallen v. United States

PETITIONER:Fallen
RESPONDENT:United States
LOCATION:U.S. District Court for the Southern District of New York

DOCKET NO.: 210
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 378 US 139 (1964)
ARGUED: Apr 30, 1964
DECIDED: Jun 22, 1964

Facts of the case

Question

Audio Transcription for Oral Argument – April 30, 1964 in Fallen v. United States

Earl Warren:

Number 210, Floyd Charles Fallen, Petitioner, versus United States.

Mr. Groner.

Isaac N. Groner:

Mr. Chief Justice, may it please the Court.

The issue in this case which is here on writ of certiorari to the United States Court of Appeals for the Fifth Circuit is the validity under the Constitution under Federal Rules of Criminal Procedures, of the action of the Fifth Circuit in granting the motion of the government to dismiss the appeal on the ground that no notice of appeal had been received by the District Court within 10 days after petitioner’s sentencing.

Petitioner was convicted on three counts arising out of a post office robbery, upon a trial in which he was represented by court appointed counsel.

On January 15, 1962, petitioner was sentenced to consecutive terms aggregating 20 years.

The court appointed counsel was physically present at the sentencing.

The record of the sentencing shows that petitioner himself asked the Court “May I appeal this case as an insolvent?”

The District Court replied, “Oh yes, you always have a right to appeal.

The government provides for that.” Thereupon the sentencing proceeding was terminated.

After the sentencing, petitioner and his court appointed counsel had a talk.

The record before this Court contains letters from both the counsel and the petitioner relating to this conversation.

The counsel’s letter contains the following.

At that time I told Mr. Fallen that the firm with which I am associated, did not wish me to undertake any further criminal matters either by appeal or otherwise and therefore I suggested that Mr. Fallen secure another attorney without delay so as not to forfeit his right of appeal.

Counsel then departed out of the case so far as he was concerned at that time.

(Inaudible)

Isaac N. Groner:

He did not notify the Court Your Honor that he was withdrawing so far as this record was concerned.

In fact Your Honor he was reappointed under the circumstances, I’ll come to shortly, which indicates very clearly that the court recognized the propriety, evidently under the terms of its original appointment of his disassociating himself from petitioner at this point.

There is no indication that there was any other communication with the District Court after this conversation by the counsel until he was reappointed.

On January 29, the fourteenth day subsequent to petitioner’s sentencing, the District Court received two letters, each dated January 23, written by petitioner, the one constituting a motion for a new trial and the other a notice of appeal.

These then were the first papers received by the District Court subsequent to the sentencing, so that prior to January 29 and between January 15 and January 29, there was no communication with the District Court by the petitioner or by his court appointed counsel.

Petitioner had been incarcerated during the trial in Jacksonville, Florida where the trial took place.

The day following his sentencing, he was removed to the hospital at the Federal penitentiary in Atlanta and it was from the Federal penitentiary that the letters were transmitted to the District Court.

On January 30, the day after the letters were received, pursuant to a request from the District Court, the court appointed counsel sent a letter to the court, summarizing the facts to which I have already referred.

On February 1 —

Earl Warren:

You mean that fact that he could no longer —

Isaac N. Groner:

Yes, yes Your Honor.

The fact that he had told petitioner that he and petitioner had had a conversation subsequent to the sentencing, that he had told petitioner that his firm did not permit him or would not permit him to undertake any further criminal matters and that petitioner ought to do something else about getting another attorney.

On February 1, the District Court filed an order which expressly reappointed this court appointed counsel as counsel for the limited purpose of presenting the question whether petitioner’s motion for a new trial was timely filed, and if so whether it should be granted.

The District Court found, in this order, that while appeal was discussed on January 15 with Mr. Fallen, the provisions of the rules with respect to new trial were not discussed with him, nor the requirements of law with respect to appeal in forma pauperis.

Isaac N. Groner:

The District Court found that the representation of petitioner by court appointed counsel had ended on the date of the sentencing.

Under these circumstances, it is undoubtedly an undeniably the fact that this court appointed counsel took no action and felt himself under no assignment or responsibility to the petitioner with respect to either the motion for new trial or the notice of appeal.

This counsel does not claim that he advised petitioner as to the time limits, specified in the rule.

Nor does he claim that he provided petitioner with any assistance whatsoever.

The record before the Court is sufficiently complete to be absolutely clear and unquestionable that this court appointed counsel did not represent petitioner and did not afford him the assistance of counsel at any time during the 10-day period subsequent to the sentencing or at any time prior to his being reappointed by the Court.

On February 21, the District Court denied the motion for a new trial on the merits.

It expressly did not decide the issue of timeliness.

On the same day, the court appointed counsel filed the formal notice of appeal and the requisite papers for appeal as an indigent.

On February 26, such an appeal was allowed by the District Court.

In the Court of Appeals, after the government had filed its motion to dismiss, another counsel was appointed to represent petitioner for the purpose of the government’s motion.

The Court granted the motion and dismissed the appeal by a two to one vote.

The majority found that the petitioner had raised no constitutional issues, but Judge Reese, in dissent, called attention to the fact that the defendant did not have counsel of his own choice or court appointed counsel throughout the 10-day period allowed for filing his notice of appeal, that he was not adequately advised of his rights, was recognized by the District Court.

Upon these facts, petitioner’s first contention here is that the Court of Appeals’ judgment cannot stand because it is in violation of petitioner’s right to counsel.

This appeal was dismissed on the basis of papers filed by petitioner himself without the assistance of counsel during the time when he had no court appointed counsel and when he had not waved, in any way, his right to counsel.

Here we are dealing with the Federal system where as this Court had pointed out in Hardy against the United States, the appeal is a matter of right and where the appellant is entitled to the aid of counsel unless he insists on being his own.

The cases of this Court in our view, leaves no room for doubt that the right to counsel under the Constitution as well as the Federal statues and rules extends to trails on the one hand and to appeals on the other.

A Court may not constitutionally convict if the defendant has been deprived of his right to counsel at the trial and appellate court may not constitutionally affirm if the appellant has been deprived of his right to counsel on appeal.

It clearly follows that an appellate court may not dismiss the appeal if the appellant has been deprived of right to counsel in the submission of the appeal papers.

This case itself is a most eloquent illustration and demonstration of the consequences of failing to accord the right of counsel, during the period immediately after the sentencing.

(Inaudible)

Isaac N. Groner:

During the —

(Inaudible)

Isaac N. Groner:

Well that, we would summarize the facts Your Honor as showing that he did not have counsel.

Now the exact state of the appointment of counsel is not indicated in the record.

There is no appointment of counsel either by a document or by an oral statement of the Court.

The fact is that he departed from the petitioner’s subsequent attempting and the fact is that he was reappointed by the court.

(Inaudible)

Isaac N. Groner:

The intervening papers with the letters that are involved, the letters of January 23rd, Your Honor, and in one of them the one letter goes, “Since I haven’t heard from the lawyer I would like for this letter to ask for a motion for a new trial.

The basis of the new trial is that the trial judge in his charge to the jury, also the evidence did not warrant conviction on those charges.”

The other letter read, “I would like to appeal the court’s decision in my case.

Isaac N. Groner:

I would like to get the court record as pauper.

Since I haven’t heard from the lawyer to return to the first letter, this is the, again the letter dated —

(Inaudible)

Isaac N. Groner:

No, this is not such a situation.

On the other hand, Your Honor this is a situation where petitioner is confined to a wheel chair, where he was confined under guard in a hospital during the trail at Jacksonville Florida.

This conversation that we are speaking of, took place on January the 15th, the very, his own statement indicate that subsequent to this conversation he was taken back to the Jacksonville hospital, not permitted to have visited.

The record shows that on the very next day, he was transported by the government from Jacksonville to Atlanta and the record indicates from his statements that he was ill and it was in the hospital at Atlanta and that the first day that he felt well enough to write, he did write the letter on January 23rd and —

Arthur J. Goldberg:

(Inaudible)

Isaac N. Groner:

That is correct.

Arthur J. Goldberg:

(Inaudible)

Isaac N. Groner:

That is correct, Your Honor.

Arthur J. Goldberg:

(Inaudible)

Isaac N. Groner:

That is correct, Your Honor.

Now the only reply to the extent that I understand the government’s position is that the record does not disclose with a certainty or with that increased certainty that would accompany a remand that the letter was mailed on the January 23rd, I am sure that the government can express its own position.

What is indicated in the record is a statement by petitioner that he did deposit the letter in the hospital, prison hospital mail box on January the 23.

The record also indicates that the district Court assumed that the letters had been mailed or at least that the petitioner had made evidence a desire for a new trail, asked for an appeal on the eighth day.

The government without indicating in anyway on what bases it speculation or its position indicates that the case ought to be remanded —

Hugo L. Black:

On which basis?

Isaac N. Groner:

I was very interested in sitting and listening to the previous case, that the Solicitor General of the United States called attention to the fact that testimony after the event did not have to be helpful, and he called attention to the fact that such testimony is have to be highly speculative and that those involved would be very, would be very likely to try to defend what they have done.

And we submit that that would certainly happen on this point, would there be a remand on whether or not the letter was mailed.

But in any event, Your Honors, our primary thrust here is on the right to counsel and as to that there is not dispute in the record, there can be no material fact to be explored upon any remand.

And we would submit to Your Honors that had the court appointed counsel promptly, had he felt that he was under a continuing obligation under a continuing responsibility and had he filed within time the very notice of appeal and other appeal papers which he later filed after reappointment by the Court, this case would of course have long since disposed up on its merit.

Earl Warren:

Mr. Groner is there any rule of that District Court stating the time that the appointment to represent a defendant that his trail terminates? In other words after he was sentenced, was this lawyer obligated to represent him or had he, had he fulfilled his obligation of assignment?

Isaac N. Groner:

I do not know, Your Honor.

Earl Warren:

Perhaps the government can answer that question, I’ll ask him.

Hugo L. Black:

Mr. Groner isn’t your real (Inaudible) basic charge that a rule is not a constitutional thing for this Court, you got have some looseness in the joints to see that justice is done in the end as the rule prescribed.

Isaac N. Groner:

Well, that certainly is a position, that one of the positions that we take.

There is no question about it and we would strongly submit Your Honor that is a case which very dramatically and forcefully illustrates that there must be some plan to join.

The special factors here including the absence of the right of counsel, including the writing and mailing of the letters within time although we seek by the District Court outside of time and the action or inaction by the District Court all add up to the conclusion that it was very unjust to deprive this appellant of the right of appeal and even the majority below were moved in what I at least say as a very unusual expression.

They were moved to express their sympathy with this defendant and certainly I would think that they would not express sympathy unless they felt absolutely ironbound by a rule of law.

Isaac N. Groner:

We certainly submit that they are not to have so felt that the rules involved, the Federal rules of criminal procedure there are rules which do permit some flexibility for the obviously exceptional case.

Now we would submit on the right to counsel, that the right to counsel extends to all the stages of the criminal proceeding, that the concept of right to counsel is that there is a right to the assistance of counsel unless there is knowing waiver of that right we would submit that, under the Sixth Amendment, under Rule 44 that there is with absolutely clarity that the right extends to all stages, this is the phrasing of Rule 44, but there is no need to show prejudice although of course in this case there was prejudice and that if this right does apply on all stages, the record is clear that at this particular stage and this particular case that right was denied, and therefore the judgment below should be reversed.

If there are no further questions I would like to reserve the balance of time for rebuttal.

Earl Warren:

Do I understand this is man was a paraplegic?

Isaac N. Groner:

Yes Your Honor, he was paraplegic confined to two wheeled chair throughout and still is.

Earl Warren:

Because of that he was sent to the prisoner hospital then?

Isaac N. Groner:

I believe so Your Honor and also because of that he had been under confinement even during the trial in a local hospital in Jacksonville, Florida.

Earl Warren:

Is there anything in the nature of his confinement in the hospital that would militate against his filing the notice of appeal, do you know if that?

Isaac N. Groner:

There is no other fact that I can recall expect for his own statement that he was too ill to write until January 23rd, but beyond that as to the details of — the record contains for example no medical reports that I’m aware of or anything like that.

But it does contain a statement as far as I know what is un-contradicted, that he was too ill to write until January 23, as well as the fact that immediately after the sentencing in Jacksonville he was not permitted any visitors.

Earl Warren:

When was his point first raised by the government, the question is to whether District Court had jurisdiction to hear the matter?

Did they raise it in the District Court or did they raise it first in the Court of Appeals?

Isaac N. Groner:

I’m not sure.

I believe that they contested the motion for new trial, the timeliness of it before the District Judge and he did not pass on the timeliness of it, although he did pass on the merits of it.

Earl Warren:

Yes, yes.

Isaac N. Groner:

Thank you.

Earl Warren:

Mr. Heymann.

Philip B. Heymann:

Mr. Chief Justice, may it please the Court.

I would like to begin by saying that in the course of preparing the oral argument we have gone into some of the background that is not in the record, appellant’s illness, of mail procedure and if the Court has any questions they most of the facts we find turn out to be favorable to appellant, the Court feels it’s appropriate to ask, I’ll be happy to answer.

I don’t know —

Earl Warren:

Are they in the record?

Philip B. Heymann:

These facts are not in the record, I will state the record facts automatically.

I will not state any facts about Atlanta penitentiary’s mail procedures unless I’m asked or appellant’s illness unless I’m asked.

These are not damaging facts to appellant, but I just stick to the record unless I’m asked.

I’d be happy to state them if Court’s interested.

Tom C. Clark:

What about the mails (Inaudible)

Philip B. Heymann:

Mr. Justice Clark, the mail procedures today are that the mail is picked up five days a week in the Federal penitentiaries.

At the time that this case takes place, January of 1962, mail was picked up twice a week, this is the result of fairly offhand investigation and that time seems, this is the Atlanta penitentiary where appellant was, that time seems to be Tuesdays and Fridays.

Now, simple recourse to a calendar makes Fallen’s claim of timeliness far more plausible than it is on the bare record.

Tom C. Clark:

What day is January 23rd?

Philip B. Heymann:

January, January 23rd the eight day when he says he mailed a letter was a Tuesday.

If he acted shortly after the mail was picked up it would not have been removed from the prisoners’ mail box until Friday, it in fact arrived Monday.

Now this is entirely on the facts as we now we develop them if they are —

Tom C. Clark:

Laid there in the mailbox for two days?

Philip B. Heymann:

Tuesday to Friday.

Earl Warren:

How about illness?

Philip B. Heymann:

He is a paraplegic.

He was injured in an automobile racing accident in 1951 Mr. Chief Justice.

He’s had because of that something that’s called Brown-Sequard Syndrome which is something that paraplegics often have, it’s difficulties with the kidney, urinary valve tracks.

At the time of this case, when — at the time of sentence and he was immediately removed to the Atlanta penitentiary where he was said he was sick, this was primarily a bad case of flu.

He went to the Atlanta penitentiary with flu, and he was put immediately in the prison hospital. There are mail facilities in the prison hospital.

We don’t know whether the mail facilities give the dates of pick up that is Tuesday and Friday.

Earl Warren:

But he was put in there for being ill and not just because he paraplegic?

Philip B. Heymann:

No I think he was put in there for having the flu, Mr. Chief Justice.

He has been since transferred the Springfield, Missouri where the prison hospital is and that is for being paraplegic and these are the difficulties that come with that.

Potter Stewart:

Just on the record – (Inaudible)

Philip B. Heymann:

Now that’s one fact we tried to find it out, but we couldn’t quite find out, the governments — we couldn’t transcript, because the transcript wasn’t — was never made up, this having been dismissed on the notice of appeal in the Court of appeals.

Apparently the government’s contention was that Fallen was the brains behind a hold up of the post office and that he had in fact was present at the hold up in a wholly manually driven car, he has no use of his legs, either as a getaway man or as a simply an observer and a look out.

I think I better get to my argument.

(Inaudible)

Philip B. Heymann:

Right.

Now this case of course involves only one issue and that is whether Fallen’s appeal was timely within the meaning of Rule of 37 (a).

There are two subordinate questions under that.

One is whether Fallen did everything that was required of him within the meaning of the rule, that sort of the basic question.

The second question the petitioner has made the basis of his oral argument seems to me to be something that you only arrive at if he didn’t do everything he should have and that is whether what failures of counsel there may have been excused is not taking all the actions he should have taken.

The basic facts have been stated by Mr. Groner, a notice of appeal arrived in the District Court along with new trial motion on the fourteenth day before a date put on it by the prisoner Fallen which is the eighth day after sentence.

He had been represented by counsel through trial and its sentencing and for that reason the District Court did not advice him of his right to appeal or asked if he wanted an appeal noted forthwith.

Earl Warren:

Mr. Heymann, can you answer the question —

Philip B. Heymann:

Yes sir.

Earl Warren:

— I asked Mr. Groner is to what is the length of the service of a lawyer who is appointed to defend a man —

Philip B. Heymann:

I’m afraid I cannot answer Mr. Chief Justice.

I can say that I think it’s very general practice for lawyers appointed at trial to leave immediately after sentencing without taking the notice of appeals.

Earl Warren:

Yes.

Philip B. Heymann:

The new trial step is almost automatically in the hands of lawyer appointed for the trial.

A new trial must be filed, a motion for new trial must filed within five days after verdict, not judgment since sentencing rarely comes within five days of verdict, prisoners almost always have — defendants almost always have counsel for those five days during which the new trial motion must be filed.

Arthur J. Goldberg:

(Inaudible)

Philip B. Heymann:

I doubt very much Mr. Justice Goldberg, just whether that mislead Fallen.

The reports of the following conferences between Fallen and his counsel indicate that he indicated to his counsel that he would himself take an appeal, he would himself obtain counsel for an appeal.

He did in fact act within as he claims eight days.

I doubt if he was mislead.

There maybe some possibility there.

I’d like to refer to the basic question of whether this appeal was timely.

There are two facts, I have stated the facts that were here and that were in the record, Mr. Groner stated in too.

The two facts that in the record that was before the District Court and before the Court of Appeals were missing.

One of those is when Fallen in fact gave his notice of appeal to the prison authorities and another is what he discussed with counsel during the conference of an indeterminate length that took place after sentencing.

The counsel said that conference took an hour and a half, Fallen suggested it was few minutes, we have no idea what was discussed there.

Now we believe —

Byron R. White:

Mr. Heymann what —

Philip B. Heymann:

Yes.

Byron R. White:

(Inaudible) had filed a notice of appeal, one of the perfectly obvious was that the man wanted to appeal and he wouldn’t have a lawyer.

Philip B. Heymann:

I suppose there are two answers Mr. Justice White, one is that the clerk probably took quite seriously the language of the rule that says he shall only file notice of appeal with his signature and not with the defendant’s signature if the defendant without counsel at sentencing.

Byron R. White:

Well the general fact with these lawyers is not to do anything and just file a motion for a new trail and he did say that?

Philip B. Heymann:

No, no.

I was suggesting, I did say that but I was suggesting that generally the defendant very regularly the defendant files a —

Byron R. White:

Well, the county clerk is supposed to think that this lawyer will or won’t take care of these appeals.

Philip B. Heymann:

The Clerk?

Byron R. White:

Yeah.

Philip B. Heymann:

I suppose he should think that the lawyer will not.

Byron R. White:

And why shouldn’t he file the notice of appeal?

Philip B. Heymann:

Because he is only authorized to sign a notice of appeal on behalf of the defendant when it’s been – when he is not represented by counsel.

Philip B. Heymann:

Now this may not be — this may be an overly technical reading of the rule, but that’s probably the way he read it.

I have a second answer and that is —

Byron R. White:

That is in there, as a matter of fact its – well, he probably won’t have counsel, he was dead right, he didn’t —

Philip B. Heymann:

I don’t really want to be pressed too far on what the clerk thought about Fallen’s counsel.

The counsel was there.

The clerk saw Fallen with a counsel.

That’s probably all he saw.

Also I don’t think it’s clear from Fallen’s question that he wanted to appeal.

He wanted to know if he could appeal in forma pauperis if he wanted to, and the answer was yes.

We have suggested in our brief that there are four rules that state the time within which a prisoner must act and the actions he must take to file a timely appeal within Rule 37 (a).

Rule 37 (a) says an appeal should be taken within 10 days.

Only one of these do we believe could be decided on the record that was before the Court of Appeals.

That construction of Rule 37 (a) is the one adopted by the Fifth Circuit.

It said the notice of appeal must arrive in being the clerk’s constructive or actual possession within 10 days.

Now, that is an entirely reasonable construction we believe in the case of everyone except prisoners.

The rule itself says an appeal was taken by Fallen in notice with the clerk and shall be taken within 10 days that seems to mean that the notice shall be filed within 10 days.

This is the general rule for civil cases.

It’s also a rule that gives maximum of certainty and that maybe the most important characteristic of a rule for appeals so that everyone would know when the criminal prosecution is over.

We did not defend that judgment in our memorandum on the cert petition and we don’t defend it now for the reason that was simply stated by Judge Shawn in a case for himself in the two Judge hands.

The prisoner’s right to appeal cannot be left in the hands of his jailer.

It’s one thing to say to an ordinary defendant who is out of bail or who has counsel that he has an absolute obligation of getting his notice of appeal to the Court within 10 days, all he has to do is write a letter and say I want to appeal.

He has that power and having the power, it can be required of him.

The Robinson case that neglect in taking his action is not excusable.

It’s an entirely different thing to say that to a prisoner who is a penitentiary behind bars.

He has no power to get his notice for appeal to the Court.

He is required to use a courier and he can’t choose his courier, his only courier is his jailer, the government which succeeded in obtaining the prosecution.

For that reason we think that timeliness of appeal for a prisoner must be decided by when he takes an action within his power that is when he gives the notice for appeal to the prison authorities for forwarding.

Now, that’s the very when, that’s the very when that we don’t think was before the Court of Appeals in this case, and that’s the reason why we believe a remand is necessary and a hearing.

Earl Warren:

It was before the — the District Court, wasn’t it?

Philip B. Heymann:

Mr. Chief Justice, the District Court, no one has ever had anything on this issue except the statement of the defendant, the date that the defendant wrote at the top of his notice of appeal which was the eighth day.

Philip B. Heymann:

We can’t accept a defendant — a prisoner’s notation of a date on a letter as the date on which it’s forwarded.

In going through the cases I ran across a couple of cases in which appeals were denied months later by Courts of Appeals.

They had been dated by the prisoner well within the 10-day period.

Hugo L. Black:

Was there a post mark on envelope?

Philip B. Heymann:

There is not — there was not apparently, there certainly isn’t in this case.

Hugo L. Black:

There isn’t a —

Philip B. Heymann:

There is not.

Hugo L. Black:

There is not.

Philip B. Heymann:

There is two types of prison mail, one will be dated that’s special purpose mail, the other is uncensored mail and it will not be dated and that’s what was used in this case.

Tom C. Clark:

Envelope is franked?

Philip B. Heymann:

The envelope contains no notation of date, it contains no stamp, I think it – that’s right it’s franked.

Tom C. Clark:

Franked.

Philip B. Heymann:

It’s cracked.

Tom C. Clark:

Quite often they don’t frank mail (Inaudible)

Philip B. Heymann:

Well – [Laughter]

William J. Brennan, Jr.:

Well Mr. Haymann you are suggesting is (Inaudible) hearing on what whether in the fact he deposited these letters in the hospital or prison whereever it was mailbox within the 10 day period, is that it?

Philip B. Heymann:

Well, I was about to come to that.

On the question –

William J. Brennan, Jr.:

(Inaudible)

Philip B. Heymann:

No on the question of when he deposited them.

William J. Brennan, Jr.:

Yeah.

Philip B. Heymann:

Now we don’t think that’s sufficient for a decision of this case, with the case here we think the Court should tell the District Court what date would be timely and what would not.

In other words, it shouldn’t simply go back to find out when.

Arthur J. Goldberg:

The District Court (Inaudible)

Philip B. Heymann:

I agree that he states that very clearly Mr. Justice Goldberg.

This is a decision that has to be made by the Court of Appeals.

The District Judge properly makes it in the first instance in determining whether to grant leave to appeal in forma pauperis.

Arthur J. Goldberg:

(Inaudible)

Philip B. Heymann:

That’s clearly right.

In that way the Court of Appeals did not overturn Judge Simpson’s decision.

Philip B. Heymann:

We do think that Court of Appeals has the right to make that finding of timeliness and it’s never been faced with question also as the right to send it back for hearing.

We discussed in our brief three alternatives we thought which could state the time when a prisoner must do everything within his power to get a notice of appeal to the Court.

One would be to require him to act and exercise all due care in light of the delays that prison mails often have.

Well, today they don’t have any delays, but in those days they were delivered twice a week, there could have been a delay of several days.

We haven’t —

Hugo L. Black:

Do you think in construing rule of timeliness, the Court has the right to consider rule two, said that these rules are intended to provide for the just determination with every criminal proceedings, they should be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustified events and delay.

Do you think we have the right to consider what was the declared purpose of the rule in a particular case?

Philip B. Heymann:

I think that construing in light of rule two would be a perfect disposition of this case on the issue of timeliness of a prisoner’s appeal Mr. Justice Black.

The — I started to say that we don’t recommend that the defendant here required to take due care in light of prison procedures for two reasons.

One is we think a notice of appeal rule should be as mechanical and as certain as possible due care may involve litigation that would certainly be obnoxious to the prisoner, the prosecutor, and the Court.

We discussed two other rules either —

Hugo L. Black:

Why should we, just one other question.

Philip B. Heymann:

Yes, Mr. Justice.

Hugo L. Black:

Why should we remand this case to have clearing about whether he (Inaudible)?

Why didn’t they know and the system of rule that and to achieve justice (Inaudible) this man’s appeal should not be cut off if not why wouldn’t we just be construing rules mechanically (Inaudible) in that regard of what happened.

Philip B. Heymann:

Mr. Justice Black I think you are too, I am not quite, I can’t separate two questions you maybe asking.

One in light of the facts that I have given you were not in the record and were not before the Court of Appeals, I would not think it was beyond the bounds of reason for this Court to say that he in fact appealed on the eighth day.

I would think that would be permissible.

These facts were not before the Court of Appeals, but they are, we have checked them and that’s what seems to have happened.

Hugo L. Black:

Suppose in fact he was not, suppose in fact he didn’t get the way that, I thought that this way —

Philip B. Heymann:

That’s the second question.

As to the second question, a rule of time the appeal has to be arbitrary.

Hugo L. Black:

Why is it?

Philip B. Heymann:

Because —

Hugo L. Black:

And it has be as well as by written or the never be taken consideration anything is absolutely essential to produce that decision in the case.

Philip B. Heymann:

I am sure if there is something essential to produce a fair result, perhaps it must be taken into consideration.

Hugo L. Black:

Well it is essential that a man have an appeal and not have it just taken out of his way and then magic word jurisdiction?

Philip B. Heymann:

Well I think that is the, I think that the decision of this Court in Robinson.

Hugo L. Black:

That’s right.

Philip B. Heymann:

I also think it’s probably correct.

Philip B. Heymann:

The — a Court of Appeals — there should be a termination date for a criminal proceeding.

There should be a date at which everyone can say this proceeding is over or I should add Mr. Justice that the proposed new rules would allow an extension of 30 days for excusable neglect.

It doesn’t, if they want, if the date is 10 days plus 30 days for excusable neglect then 40 days is the date when everybody knows that it’s over, but I do believe there should be a rule and I think we both agree —

Hugo L. Black:

Well the new rule says that the defendant himself will be personally notified so make sure that he doesn’t have his right of appeal taken away from him?

Philip B. Heymann:

There is Your Honor.

Hugo L. Black:

There is.

Philip B. Heymann:

These are — I am talking about proposal.

I am talking about proposed new rules, Your Honor will be the ones who promulgate these roles.

The present proposals state that and these of course can be changed before they get here, the present proposal states that the District Court should tell every defendant, not just defendants without counsel, and not just indigent defendants of their right to appeal and should offer each of them the services of the District Court clerk in entering the appeal.

We would think that if that was construed or amended so that the District Court would make clear that if the defendant did not avail himself of these services at once he had 10 days to write a letter to the clerk or to get a letter to the clerk, telling him he wants this appeal noted now, we would think that would completely dispose of the counsel question for all future cases, without completely disposing the questions presented in this case, the rules could and would take care of it.

What you are suggesting in this case, I get it is that there should be a construction by this Court that in the respect of a prisoner, an incarcerated man, the clerk, the jailer in effect is the clerk.

Philip B. Heymann:

That is exactly what I would suggest Mr. Justice Harlan.

And that you think this case are to be remanded to find out when the prisoner had exhausted everything he could do namely by delivering to the jailer the notice of appeal, is that right?

Philip B. Heymann:

That’s correct and I would think would be —

And the only reason that you are not ready to accept the eighth day as is shown by this record January 23rd is because I suppose the experience that you had is that prisoner don’t always put on the dates in the mailing if they like (Inaudible) is that it?

Philip B. Heymann:

That’s it and it would be minor qualification that we think that a remand is desirable because of the facts that were before the Court of Appeals.

It would — if the facts that are now before this Court had been the Court of Appeals would perhaps be quite possible for the Court of Appeals to decide it without a hearing forth with.

You mean the facts are outside of the record?

Philip B. Heymann:

This fact is outside of the record.

It’s that these facts are outside of the record, which caused this initially to recommend a remand and causes us now to say it’s the more formally proper disposition of the case, but the basic part of what is said is exactly what I would say, Your Honor.

Well on that premise why shouldn’t we dispose off of the case (Inaudible)

Philip B. Heymann:

I — these facts were arrived at a somewhat offhand basis, but I would think there was nothing seriously wrong with disposing of it up here, primarily because there has been a substantial delay between the time of the notice of appeal and the present time, the time —

(Inaudible)

Philip B. Heymann:

We do not know it.

That’s what we’ve always said, there should be a hearing on, but I have said to this Court that there is a consistency between a Tuesday and Friday date of pickups in prison and Fallen’s contention that he deposited the letter on Tuesday and it didn’t derive till the following Monday.

(Inaudible)

Philip B. Heymann:

I think the evidence is quite strong.

I still think the better disposition would probably be for a finding by the Court of Appeals or the District Court, but I think the evidence is quite strong now.

(Inaudible)

Philip B. Heymann:

He in fact says he thought it on the eighth day, that’s —

Arthur J. Goldberg:

(Inaudible)

Philip B. Heymann:

Now that’s, well Friday will be the next day Mr. Justice Goldberg.

Arthur J. Goldberg:

Mr. Heymann I notice this was — the commitment was on the 15th day of January 1962, that’s two years three months ago.

Is it likely that you could get any additional testimony that would be worth very much now on when a letter was handed to the hospital authorities by this, by this man?

Philip B. Heymann:

I think we would have to rely primarily on the defendant himself at this stage.

Arthur J. Goldberg:

And he has already testified?

Philip B. Heymann:

Well we would ask him, apparently the pick up was — I am afraid, as I say this, we tell them what he is going to say, the pick up is apparently shortly after noon, it was time Tuesday and Friday we would have asked when he deposited it and I am sure that now it will turn out right.

Are you willing to have, assume for the purposes of the decision in this case that this letter was handed to the jailer by this man before January 23.

Philip B. Heymann:

We would be Your Honor, if it were clear in the Court’s opinion that there is not a rule that prisoners can write any date they want on the top of a notice of appeal and have that accepted by the Courts.

We think that the facts here are extraordinary.

Hugo L. Black:

(Inaudible)

Philip B. Heymann:

He does, we wouldn’t like to rely on even his statements in that form.

We would like to have —

Hugo L. Black:

(Inaudible)

Philip B. Heymann:

Well I meant to say that that the prisoner now stands, this is another advantage of the rule suggested by Justice Harlan, that if he acted within 10 days, he could use the prison authorities as his clerk.

The mail is now picked up on a five-day a week basis, Monday through Friday and when it’s forwarded, which is presumably the same day it is stamped with a date even if the franking privilege is used.

Earl Warren:

Well is suppose if it went back and all, you did was to ask him these questions and he answered them favorable to himself, the Court would be obliged to — on not having relief would it not —

Philip B. Heymann:

Unless, yes Your Honor, unless United States attorney has more imagination than I have on what could be brought up.

I thought that I have had trouble thinking of what could he possibly bring out.

Earl Warren:

Well, this would be useless procedure limit in the long run?

Philip B. Heymann:

I think so Your Honor, yes.

Now I think at this point the last thing I have to say becomes rather obvious and that is that it seems to us every reason not to decide a right for counsel question in this case.

The government believes that if felon is telling the truth his notice of appeal is timely.

Even a felon is not telling the truth, whatever loss may have come to him from and absence of counsel which, which does not appear, we don’t know what counsel said to him, we would have that remand on that, for whatever loss may have come to him from the absence of counsel would be, we believe made up by the Fifth Circuit’s later decision in Flora which says the 10-day rule doesn’t begin to run, until the prisoner is informed by Court or counsel.

So Fallen is protected, coming and going on the counsel point, on the timeliness of this appeal on the counsel point.

As to future cases, we believe that the pending revision of the rules is a far superior place to go into this question.

It’s been going into in-depth now.

I wanted to mention three rules I think I have mentioned two of them, one is that the District Court would be (Inaudible) proposals, one is the District Court would be required to inform every defendant of his right to appeal and to ask every defendant if the clerk were to make available to every defendant the services of the clerk in noting the appeal immediately, another is the provision for 30 days for excusable neglect, and third is a proposed revision of the rules for counsel.

The new rules would make clear that counsel stayed with them all the time through I think. There are two bills now before Congress that are in conference that would make that clear, and these are the places for disclosing of a counsel issue.

Can I go back to one thing again just to make sure that I understand it.

You are authorized to say for the Solicitor General Mr. Heymann as I understand it that for the purposes of the disposition of this case the government is willing have the record supplemented by stipulation that this notice of appeal was handed to the jailer on January 23.

Philip B. Heymann:

Yes, Your Honor and unless the Court has any other questions I will leave it there.

Hugo L. Black:

Can you imagine any other service that could possibly be performed (Inaudible)

Philip B. Heymann:

I think it will be better perhaps to decide it now.

The only service would be that it would make clear that the general — the general disposition of these cases that is most appropriate is a hearing in effect finding by District Judge.

If that can be made clear without sending it back I don’t think there would be any purpose in sending it back.

Earl Warren:

Mr. Groner, do you have anything further?

Isaac N. Groner:

Just one or two things Your Honor.

Earl Warren:

Yeah, go right ahead.

Isaac N. Groner:

Just so the formalities maybe tidied up and however naked my motivation may now be, certainly petitioner would stipulate to the facts which have been added here by the representative of the Solicitor General.

We would stipulate that they ought to be and shall be considered part of the record before the Court and of course we would agree with the conclusion which of course we agreed with before that there now can be no doubt whatsoever that on the eighth day, this petitioner did deposit in the mail this notice of appeal.

And so on the first ground we think now it conceded on the first ground in terms of what we argued in our brief, it is now conceded that for the purposes of this case it maybe stipulated that he deposited on the eighth day, we believe therefore that on that ground the Court should hold that he has done all that he can do and therefore should reverse the judgment.

On the right to counsel point, however we do believe that there are or might be some utility in the Court discussing that.

We do not believe that there is any need for remand.

It is absolutely clear whatever was said between them that the counsel did not act on behalf of the petitioner and the petitioner has not waved his right to counsel and we would therefore say that the right to counsel has been violated.

The notes to the new rules use the same phrase at all stages that Rule 44 does and so we would say it is the present rules that we are concerned with, and rules 44 guarantee that there would be in fact available the assistance of counsel at all stages.

And we certainly would join the government in commending to Your Honors the case of Boroff against the United States.

Now, we certainly would agree that the reasoning of that case is a persuasive guide to the principles which ought to apply here.

Now, there is one further point because there were questions asked by Justices Goldberg and White at least with respect to the duty of the Judge except that the answers or the discussion seems to be the context of the duty of the clerk.

Our position is that it’s a duty devolves upon the Judge and if the Judge was put on notice here that the petitioner wanted to appeal, Rule 37 (a) (2) as it now stand says, that when a Court after trial imposes sentence upon a defendant not represented by counsel the defendant shall be advised of his right to appeal and if he so requests the clerk shall prepare and file forth with a notice of appeal on behalf of the defendant.

We say that that imposes an obligation upon the Court and that that obligation was not satisfied here.

We don’t construe that rule as bearing upon the authorization of the clerk as the government does.

We think it bears upon the obligation of the Court and the Court obviously did not satisfy it here.

For those reasons and for the reasons that the rules ought generally to be interpreted so as to do justice, we would strongly urge the Court that the judgment below be reversed and that the case be remanded not for any further hearing whatsoever, but with directions to reinstate the appeal and to decide the appeal on it’s merits.

Earl Warren:

Mr. Groner before you will take your seat on behalf of the Court I should like to thank you for having accepted the assignment to represent this indigent defendant.

The Court is always comforted by the fact that lawyers will accept such public service and so we are very grateful to you.

And Mr. Heymann, I want to say to you that the Court is really appreciative of the frankness and fairness in this case.

I think it’s a matter we can all derive pleasure out of in this last argued case this term have an end on a high note for counsel on both sides are as frank to the Court and as fair to each other as you had been in this case, both of you.

We’ll adjourn.