Gagnon v. Scarpelli

PETITIONER:John R Gagnon
RESPONDENT:Gerald Scarpello
LOCATION:Wisconsin Eastern U.S. District Courthouse

DOCKET NO.: 71-1225
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 411 US 778 (1973)
ARGUED: Jan 09, 1973
DECIDED: May 14, 1973

ADVOCATES:
William M. Coffey – for respondent
William A. Platz – for petitioner

Facts of the case

This case allowed expanding the rights of those who committed the crime and are on probation. The plaintiff in the case was Scarpelli, who was on probation after committing an armed robbery in Wisconsin. Initially, he was sentenced to 15 years in prison, but soon the decision was changed to a more loyal one.

Almost immediately after the decision came into force, he committed a robbery of a private house. After this, the decision on the probation period was canceled, and the plaintiff was imprisoned. However, he did not deny his involvement in the second robbery but soon began to assert that he did it under the compulsion of the second accomplice. It was noteworthy that after the second robbery, the plaintiff was imprisoned without trial and making an appropriate decision. When a few years later he applied for a review of the term of his imprisonment, this fact was discovered.

The court ruled that the probation period can not be canceled without a proper trial, but simply on the basis of the defendant’s allegations of his involvement in a repeat offense. According to the court, this violates the constitutional provision on the right of every person to an objective hearing. Moreover, the court ruled that such cases require the mandatory participation of a lawyer. Such cases are now resolved in two stages. At the first hearing, the guilt of a person in a repeat offense is clarified. If to the second hearing his guilt is proved, then the original sentence which was replaced by the probation period comes into force.

Question

Is a previously sentenced probationer entitled to a hearing when his probation is revoked?

If so, is he entitled to representation by an attorney at the hearing?

Warren E. Burger:

We will hear arguments next in 71-1225, Gagnon against Scarpelli.

William A. Platz:

Mr. Chief Justice, may it please the Court.

Warren E. Burger:

Mr. Platz.

William A. Platz:

I might mentioned that my client pronounces his name in a French way, it’s Gagnon.

Warren E. Burger:

Gagnon and we’ll observe the French pronunciation then.

William A. Platz:

This case commenced actually on July 9, 1965 when Gerald Scarpelli was convicted in Wisconsin of armed robbery in the same county and was placed on probation for a period of seven years in the custody of what was then the State Department of Public Welfare which has control of all probationers and parolees in the State of Wisconsin.

He was also at the same time sentenced to a term of 15 years in the Wisconsin State Prison and that execution of the sentence was stayed pending the seven years probation.

He was permitted to leave the State of Wisconsin pursuant to the interstate compact for out of state parolee supervision and go to the state of Illinois where he resided.

His residence was in a suburb of Chicago and he was employed in another suburb of Chicago.

He was accepted for supervision by the Cook County Probation Department pursuant to the interstate compact on August 5th, 1965.

And on Friday August 6th, the following day, a home in Deerfield, Illinois which is a northern suburb of Chicago and is quite some distance North from Scarpelli’s residence and from his place of employment was burglarized during the day time in the morning and news of this came to the Department of Public Welfare which saw a news article in the Chicago tribune which contained two photographs including one of our probationer Scarpelli and also a statement which he gave to the Assistant State’s Attorney of Lake County, Illinois in which he made a full confession of his part in the burglary.

The co-defendant or the other burglar was also his co-defendant in the Wisconsin robbery of which he had been previously convicted.

I think Fred Kleckner, the other robber, the other burglar in Illinois was not at that time convicted in Wisconsin.

Kleckner was shot leaving the burglar premises and Scarpelli however escaped and was not taken in the custody for some little time.

Warren E. Burger:

Are you describing that the conduct which led to the revocation?

William A. Platz:

That is what I’m describing now, the conduct which led to the revocation.

Now, at that time in Wisconsin, the law was that there was no right to a hearing on revocation of probation.

Our law on probation was enacted in 1909, two years after our Parole Law.

The parole law had placed parolees in the custody of the old Board of Control which later became the Department of Public Welfare and two years later in 1909, the legislature enacted the Probation Law under which the courts could either impose sentence and stay execution thereof and place them on probation under the custody and control of the same department which had control of parolees and under the same rules and regulations or could withhold sentence all together and place them on probation.

In the case of Scarpelli, it was the case of the sentence being imposed and execution staid.

Now, originally in Wisconsin, the probation law required that before probation be revoked, there be a hearing.

The law said a personal hearing, a full investigation and personal hearing.

In 1947, that provision was removed in the course of the revision of the statute and there had been no hearing since then.

This Court in Escoe v. Zerbst did held that there was no constitutional right to a hearing on revocation or probation.

Potter Stewart:

There had been no hearing since then.

I suppose there have been perhaps hearings since Morrissey against Brewer, aren’t there?

William A. Platz:

Yes, Your Honor.

And since before that too but what I mean is up until the time of this case, there had been no action.

Now, this case was commenced in the Federal Court in December of 1968 which was over three years after the revocation.

And it took quite a while it was 1970 before it was decided in the Court, in the District Court.

William A. Platz:

We lost in the District Court.

We appealed of the Circuit Court of Appeals and we lost there it took about almost a year for that to be decided and we applied for certiorari in this Court which was granted at the end of June.

Counsel now takes the position that the case has become moot because the original seven years of probation, counter years has expired, I have filed a reply a brief and answering this claim of mootness and in order to have more time to discuss the merits, I really preferred to leave the mootness to my reply brief.

I consider that the case is not moot, that we have a right, if we have committed constitutionally, we have a right to correct it and to correct it now even though the original seven counter years have expired.

Actually at the time this matter was before the Court of Appeals, the probationer Scarpelli had been released on parole to meet a federal charge and had already been tried federally and was then in (Inaudible) in the federal institution.

And he, thereafter, was released on parole from the federal institution and I’m not sure I know just where he is now but we have a string on him and can get him back for —

Warren E. Burger:

I take it, the essence of your mootness argument is that since the sentence has six or seven years yet to run, he may have his parole revoked again and be back in.

William A. Platz:

On the basis of the role which this Court has laid down whereby the states have the right to correct their errors in case.

And on federal habeas corpus, of course, the rule is that the Court makes such order as long justice require and it does not require that there’d be an absolute discharge of the defendant.

Now, at that time as I say, this man was rather summarily revoked on the strength of what he had done and his admission. On the record, there is no question that he made the admissions to the State’s Attorney’s Office in the County of Illinois.

In his traverse, he admits, he made the admissions to the attorney to the Assistant States Attorney but he takes the position that he did so on the basis of some statements having been made to him that of course, the Wisconsin authorities would never be informed of this and that Kleckner had been killed escaping from the burglary and that no one would be hurt if he were to admit his part and that he’d be let out on low bail and all of that which — But he does not, in any way, denied that he made the statement, the complete statement is set forth in the appendix in this case and you already will see that it contains plenty of corroborate of detail from which the department would have a right believe that it was true and correct.

However, the question before the District Court was whether he was entitled to a hearing and if so, whether he was entitled to be represented by counsel.

And at that time we asked for a certiorari, we intended to raise both positions here.

However, the Morrissey case as effectively defeated us so far as the right to the hearing itself is concerned because I cannot distinguish Morrissey from this case.

Although Morrissey involved parole and this one involves probation.

Nevertheless, the two are in law indistinguishable because our probationers are handled exactly the same as parolees.

There is one slight exception but nothing that would make a legal distinction.

So, I’m here now only on the question of the right to counsel.

However, I would ask this Court if you can do so to clear up one thing for us.

Now, as I mentioned in this case, this man was permitted to go to Illinois under the interstate compact.

We have over 600 people, Wisconsin people are being supervised in other states.

Nationwide, there are at least 25,000 people who are being supervised parolees and probationers being supervised in other states.

It is very difficult for us to see how we can apply strictly the Morrissey rules to these out of state supervised cases.

In the first place, the preliminary hearing which is mandated by Morrissey is going to be rather difficult to —

Warren E. Burger:

I think we’ll pick up at that point right after lunch.

Mr. Platz, you may continue.

William A. Platz:

May it please the Court.

I was speaking of the interstate compact cases.

I suggest, Your Honor, that the Morrissey rule has created us special problems with reference to those cases and of course to any case where the probationer or parolee has absconded and where his violations have occurred outside of the State in which he was on probation or parole.

Warren E. Burger:

What about the facilities that are involved in the interstate compact that is assuming you had two states who were parties to that interstate compact.

Warren E. Burger:

As between Illinois and Wisconsin, you wouldn’t really have a problem, would you, if you use the facilities and personnel of the Illinois system to execute the functions placed on it by Morrissey?

William A. Platz:

Well, I don’t know that we have any right to ask Illinois under the compact.

The compact does not provide for that, the compact provides only for Illinois to supervise our people and to report to us on what they’ve been doing.

It does not provide for them to hold hearings.

What specific part of Morrissey are you saying (Inaudible)?

William A. Platz:

Well actually I suppose both parts, both the preliminary and the (Voice Overlap).

Well, as far we’re talking about when somebody is taken into custody before he can be moved back to prison, he has to have a hearing, sometimes a preliminary (Voice Overlap).

William A. Platz:

Preliminary probable cause, yes.

Will it require a hearing before you can put him in custody at that point.

William A. Platz:

No that’s true.

It does not require a hearing before he can be held in custody at that point.

But what if you don’t have a compact in State and one of your probation parolee goes to another State and is —

William A. Platz:

Absconds.

Not absconded, he’s arrested there.

William A. Platz:

Well, what we would have to do therein would be to issue a parole revocation of warrant, charging him with having absconded and find out whether he will waive extradition. If will not waive extradition we have extract it.

(Voice Overlap) Morrissey that he have always been.

William A. Platz:

That is true except for only for the fact that if you let us bring him back.

The only problem is that under Morrissey, we then have to hold — have to hold a hearing, after we get him back here and what it was that he did and in Illinois or wherever he was being supervised.

And we may have to produce the witnesses.

Now, but to extradite him, you will have to show some kind — that they’ve something to show you.

William A. Platz:

Well, they only showing that we have to make for extradition is the fact that he has been charged and convicted and (Voice Overlap).

But he had some sworn statement or something.

That would be subject with the ordinarily be simply proved to provide how (Inaudible).

William A. Platz:

Yes, that’s right.

With this whole evidentiary hearing at all –.

William A. Platz:

Not for extradition, no.

No, or for the preliminary hearing in Morrissey?

Warren E. Burger:

No, Morrissey is not an evidentiary hearing.

It is the first step?

Warren E. Burger:

It’s a probable cause here.

Warren E. Burger:

It say here explicitly that this could be done in the most informal way by statements of the parole officer —

William A. Platz:

In other words, if I understand Your Honor correctly, then I believe, we would be permitted having return the man to Wisconsin in the extradition situation to use just statements that we would have obtained from the state where the violation occurred, is that right?

Well, for what purpose?

William A. Platz:

For the purpose of determining probable cause to hold him for violation of his probational parole.

Warren E. Burger:

Well, no one of us can give advisory opinions.

I think you are aware of that.

William A. Platz:

That’s right.

But if that’s the case — but then we still are confronted with the necessity of an evidentiary hearing.

For final action.

William A. Platz:

For final action at which we may have to produce the witnesses who are in a position to testify that what he was did in that out of state.

Now this maybe either in a case where you supervise outside of the state to put him on probation or parole or maybe in a situation where he has absconded from that state and gone to another state where he got into some further trouble, which did not however wind up with the conviction of crime.

If it wound up with the conviction of crime, I assume that he would not be permitted under the Morrissey rule to re-litigate that.

We will just establish that by —

Warren E. Burger:

This conviction would be enough.

William A. Platz:

Yes.

Warren E. Burger:

That certainly is clear.

William A. Platz:

And in Scarpelli’s case we had his confession which probably would have had to be proved by inducing one of the witnesses to the confession from the Wisconsin and testify about it, I suppose.

Had the rule been enforced at the time when Scarpelli violated.

Warren E. Burger:

Not necessarily in person, parole hearings can be conducted on interrogatories or any other such method.

William A. Platz:

Well, if we can do it in interrogatories, that would be very helpful of course because–

Warren E. Burger:

Well, you can do it in a ordinary law suit.

William A. Platz:

We have no process whereby we could get the witness to Wisconsin from Illinois for example.

Assuming he’s unwilling to come.

Illinois is close of course but we’ve got people at much greater distances than that.

Warren E. Burger:

I’ve forgotten from your brief, how many states are in the interstate compact?

William A. Platz:

I think just about all of them right now, and two in Puerto Rico and Virgin Islands, District of Columbia.

Warren E. Burger:

Of course, in the case of Morrissey — Morrissey may require some modifications of the provisions of the interstate compact to extend these additional services.

William A. Platz:

That maybe and as a matter of fact, the council of State governments is working on it and has proposed the Bill which I have examined and I don’t think much of it because it seems to me to be quite insufficient for that purpose and I have so notified the counsel.

I hope they can work out something better than they already have.

But so far at least, it’s more or less on our resources to comply with Morrissey in the interstate cases.

William A. Platz:

Now, coming to the question of counsel and particularly if we have to have a counsel for the preliminary and if that counsel — if the preliminary is to be held in the other State and if counsel has to be appointed at public expense, this is one that cause all kinds of problems.

If the counsel has to be appointed in a foreign state to represent a man who is not really there by at all.

Warren E. Burger:

You’re speaking now of counsel at the probable cause hearing.

William A. Platz:

At the probable cause hearing, yes.

If there has to be counsel at the probable cause hearing.

Now, I’d like to drop that and go on to the question of counsel at the final hearing.

Potter Stewart:

I gather, the final hearing this is the one before the full parole board.

William A. Platz:

Yes, except that in our situation the parole board doesn’t hear it Your Honor.

Potter Stewart:

Who does?

William A. Platz:

We have had to retain the hearing examiners for that purpose.

We have had one for the last two years and have now added another one.

Potter Stewart:

And what kind of hearing at that stage, how do you read Morrissey as declared?

William A. Platz:

We, at that stage hold a hearing at which evidence is taken to determine whether or not there has been a violation and to determine whether or not the violation wants a revocation.

Potter Stewart:

What rules of evidence do you require?

William A. Platz:

Well, all of the rules of the — not the rules of evidence applicable in Court.

Alright and what about the burden —

William A. Platz:

And I think, they admit anything as that’s considered to be irrelevant in probative.

What about affidavits?

What about hearsays?

William A. Platz:

This would all be received.

However, we understand under Morrissey that if the probationer or parolee says he wants to be confronted with the people who have given information against him then he has to be confronted with — Unless, the hearing examiner determines that to do so would be dangerous, yes.

Potter Stewart:

What about the burden of persuasion?

William A. Platz:

Well, I don’t know whether that question really has come up.

Potter Stewart:

Well, for example Morrissey, Morrissey never suggested beyond a reasonable doubt.

William A. Platz:

No that’s right and we don’t apply any such a burden either.

Potter Stewart:

You don’t consider this as a criminal —

William A. Platz:

No sir we do not.

We consider that the question is whether that the Bureau of Probation and Parole in recommending revocation has acted arbitrarily and capriciously.

And if not, then whether the violation which has been established is gone for — actually justifies the warrants the revocation.

Now, on that point of course we run into another side issue and that is what else can we consider besides this particular violation?

William A. Platz:

In the case of a judge who is about to sentence a man, he looks at more than just the crime that the man has been convicted of, he looks at a whole lot of things.

He gets, in many instances, he gets a pre-sentence investigation which is made by some of these very same people who were talking about here, these probation and parole agents.

Potter Stewart:

What was the department’s practice in the past?

William A. Platz:

Sir.

Potter Stewart:

What’s been the practice in Wisconsin before Morrissey, in that respect?

William A. Platz:

Well, the practice has been that — I suppose you would have to say this, that the parole agent who is thoroughly familiar with the man’s background makes the initial determination of whether he is going to recommend probation revocation or parole revocation.

He may rely on a great many things.

William A. Platz:

Sir?

He may rely on a great many things (Voice Overlap).

William A. Platz:

He may rely on the great many things, that is right.

And uncertainly, these files contain a great deal of the man’s history and matters which are officially known to the department and known particularly to the Bureau of Probation and Parole which is a part of the department.

And these things are all known not only personally but on the record of the department.

Warren E. Burger:

Would you consider that the matters which a judge can consider in sentencing co-extensive with the matters which the parole board may consider properly on revocation of parole —

William A. Platz:

As accepted, I again I mention it’s not the parole board.

The parole board grants parole in Wisconsin, it does not revoke.

Revocation is initiated by the Bureau of Probation and Parole which is a separate organization.

It’s the organization within the department which supervises the probationers and parolees and which initiates the revocations.

The revocations actually, the signature on the paper which makes the revocation final and gives it effect is that of the secretary of the department.

And he acts, of course, upon the advice of his people who are employed for that purpose.

Starting with the Bureau of Probation and Parole then now of course it has to go to the examiner and the examiner then reports to the assistant secretary who reports to the secretary.

Thurgood Marshall:

What guidelines are there?

William A. Platz:

What guidelines?

Well, they are in writing, I don’t have.

Sorry, I’m not able to give them to you verbatim on what they are.

Thurgood Marshall:

But they do have printed guidelines?

William A. Platz:

Well, they do have guidelines.

Thurgood Marshall:

I mean guidelines as to what is considered sufficient for revocation of parole.

William A. Platz:

Yes, I would say I would have to admit they’re pretty loose.

So they have to — In other words, the agent has to decide on the basis of what he knows about this man, whether the time has come when the man has to be taken off the parole.

Thurgood Marshall:

But if the man talked back to him, would that be grounds enough?

William A. Platz:

If he talked back to him?

I don’t think so.

But what maybe (Voice Overlap) are not sufficient.

For example, a man maybe convicted of another crime.

In many instances, this would result in a revocation and maybe it will not result in the revocation.

Thurgood Marshall:

But aren’t there are many of that do not — there are many revocations that do not include conviction of crime?

William A. Platz:

There are some, yes.

Surely.

Thurgood Marshall:

And what guideline do you use for those?

None, am I correct?

William A. Platz:

I wouldn’t say there are none.

No, I can’t say that but neither can I give you what they are.

I’m not that deep enough in to it and this record of course doesn’t — going to that here — here was a case —

William H. Rehnquist:

That was a provision is in a little bit different position than sentencing judge since he may have been supervising the man on a week-to-week or month-to-month basis over a period of years and may have a closer acquaintance with that particular man and the sentencing judge would just on the basis of his probation officer’s report.

William A. Platz:

That is right but I would say that the type of thing that he considers is probably very much the same.

But what I’m concerned about is does all this have to be proved that the hearing or can we take into account these facts which are known — (Voice Overlap) department.

William J. Brennan, Jr.:

Suppose you have an alleged commission of another offense, another crime about — what you call, the parole agent or whatever he maybe who’s been supervising him over a couple of years has overlooked, does not justifying revocation, a number of infractions, for example of the restrictions, he shouldn’t leave the state and he has left the state two or three times and that’s the kind of record he has and your question is, I suppose, whether on the revocation hearing, may that kind of evidence thereon the record to be made at the revocation hearing?

William A. Platz:

That could be an example.

Yes, that sort of thing.

In other words, the whole record this man has made over the period of his supervision.

But did your statement that the power to revoke or the evidence that you may base revocation on is similar to that a judge may rely on re-sentencing?

William A. Platz:

Well, it’s in the same nature.

It’s that same sort of thing.

What becomes the confrontation then?

I mean, that’s sort of unregulated hearsay –.

William A. Platz:

That’s what it is in Court, Your Honor and that’s what this Court said it was alright way back in Williams against New York.

Yes, I just wanted to what extent Morrissey has said that is wrong.

It’s not tenable any longer in the revocation hearing.

William A. Platz:

That’s what I — that’s what I’m asking this Court.

Is it tenable or isn’t it?

William A. Platz:

And if it isn’t, why isn’t that if a Court can act on that kind of information, then why can’t the department which compiles the information which is considered good enough for Court to act unlike in the department acted?

Well, the Morrissey opinion didn’t address itself?

William A. Platz:

No, it didn’t.

It did not, that’s right.

Warren E. Burger:

Nothing in there that would indicate a modification of Williams against New York?

William A. Platz:

No, it did not.

It did not.

But it did say that one of the questions that has to be decided on the basis of the hearing is whether the violation is sufficiently serious to justify a revocation and —

Unless the Morrissey got something, unless you take that Morrissey really requires confrontation, the interstate problems are negligible.

William A. Platz:

That is true.

But it does seem to me that Morrissey requires confrontation if demanded by the defendant or by the probation or parolee, unless the examiner finds that to require confrontation will be dangerous.

I’m sorry, I’m not able to go any further to what I — but I hope I’ve got it all covered in my brief.

Thank you.

Warren E. Burger:

Thank you Mr. Platz.

Mr. Coffey.

William M. Coffey:

Mr. Chief Justice and may it please the Court.

I would very briefly like to first address myself to a contention of the respondent that this matter is moot.

In July 9, 1965, Gerald Scarpelli on his plea of guilty was sentenced to 15 years in State Penitentiary.

That sentence was staid and he was placed on probation for seven years.

That probation was ultimately revoked by the State of Wisconsin and the Department of Public Health and Social Services in September of 1965.

Warren E. Burger:

That was within the seven years, wasn’t it?

William M. Coffey:

It was within the seven years, Your Honor but Scarpelli then filed a writ of habeas corpus in Wisconsin Supreme Court later in the United States District Court claiming that his probation was illegally revoked and that he had not been granted a hearing prior to the revocation of that probation.

The United States District Court held Scarpelli’s claim to be valid, held that he was entitled as a matter of constitutional law to a hearing prior to any revocation of his probation.

He also held that he was entitled to be represented by counsel at that hearing.

The State of Wisconsin appealed that decision to the United States Court of Appeals for the Seventh Circuit and the District Court was affirmed.

In the interim period, the Wisconsin Supreme Court also decided that as a matter of constitutional law, the Scarpelli’s probation was illegally revoked and that he was entitled to a hearing.

Under whose constitution?

William M. Coffey:

The federal constitution, Your Honor.

Warren E. Burger:

But do they purport to be following or did they consider themselves in anyway bound by the Seventh Circuit holding?

William M. Coffey:

No, they did not, I do not believe there’s anything in Wisconsin opinion or Wisconsin’s Supreme Court opinion that you can interpret as saying we are bound by the decision in Hahn versus Burke and Hahn had been the first case deciding, he had a right to have a hearing.

William M. Coffey:

Wisconsin has a statute that says that anytime you place a man on probation, during that term of probation, you may modify the terms and conditions of probation and you may extend the period of probation supervision.

Now, no matter how this Court resolves the right to counsel issue, Scarpelli is entitled or was entitled to a hearing prior to the revocation of his probation.

No one in the State of Wisconsin took any action to extend Scarpelli’s probationary period.

The illegal revocation of that probation, we contend cannot operate to extend that period of the probation.

You’re not abandoning your claim that he has a right to counsel?

William M. Coffey:

No, I’m not Your Honor.

I’m just talking first about the moot decision.

Warren E. Burger:

By means here, the counsel issues is here, isn’t it?

William M. Coffey:

My position if the case is moot and as a result that the illegal revocation, his probation may (Voice Overlap).

How can it be moot if the counsel issue was validly here and you have an abandonment.

Is there going to be hearing at which you claim you have the right to counsel?

Lewis F. Powell, Jr.:

I guess, the answer is you have to win the case for you client and if it’s moot and you win at that way, you’ll take that.

William M. Coffey:

That’s correct, Your Honor and that is my theory that we could go back to Wisconsin that would be my position that they can’t hold that hearing.

William H. Rehnquist:

You win under Morrissey against Brewer in effect even though you don’t have a right to counsel.

William M. Coffey:

That’s correct and so that I can go back to Wisconsin now and argue look, you have from seven years from July 9th of 1965 as of July 9, 1972, the seven years has expired, you didn’t extend the probationary period, you can’t — you no longer have any authority or control over this man to give him probation.

Potter Stewart:

Is that a matter of fact of State law?

William M. Coffey:

Which Your Honor?

Potter Stewart:

That proposition you’ve just advanced.

William M. Coffey:

There is no authority whatsoever in the law since State of Wisconsin to extend this man’s probation.

Potter Stewart:

What makes that federal law?

William M. Coffey:

Pardon me?

Potter Stewart:

What makes it federal law?

William M. Coffey:

It’s not a federal law.

It’s the — as a matter of the operation of the State law, his probation wasn’t extended, his seven years are up and therefore that no one has extended that probationary period —

Potter Stewart:

Do we know that the Wisconsin Supreme Court may not say that for the purposes of that statute on this set of facts, it was extended?

William M. Coffey:

I don’t believe that the statute is not itself executed.

William H. Rehnquist:

But don’t you have to — don’t you have to, do you have to say that Morrissey against Brewer was retroactive to come up with that result?

William M. Coffey:

I don’t know the answer to that you may have — you may very well have to.

I right really say (Voice Overlap).

What if you have to if Morrissey against Brewer said it wasn’t that way.

William M. Coffey:

That’s correct but the position that I have taken is that the State of Wisconsin is not here contending that Scarpelli is not entitled to a hearing.

They’re not here contending that Hahn v. Burke which was decided by Seventh Circuit Court of Appeals isn’t the law.

Warren E. Burger:

Did Morrissey involve the probation or parole?

William M. Coffey:

Pardon me.

Warren E. Burger:

Did Morrissey involved probation on parole?

William M. Coffey:

Morrissey involved parole.

Hahn v. Burke which is out of the Seventh Circuit involved probation, Scarpelli involves probation.

William H. Rehnquist:

Is Scarpelli out now or is he confined?

William M. Coffey:

Scarpelli is out.

He is presently out I believe on both State and federal parole.

William H. Rehnquist:

nd your position is he is out just as if he had served an expired sentence in effect and was freed at the end of that sentence.

William M. Coffey:

That’s correct.

Warren E. Burger:

We’ll put in another way, he is out in the same legal posture as though his parole had never and his probation had never been revoked.

William M. Coffey:

That’s correct.

Warren E. Burger:

In fact over law.

William M. Coffey:

Correct.

That the revocation was illegal and therefore nothing told the running of it.

The seven years of expired and in the question moot.

I’ll leave the mootness question for a moment, let’s to go to the right to counsel.

I like that surprise.

William M. Coffey:

In Morrissey, this Court held that due process required a hearing prior to revocation of parole.

The Court’s decision is based on the determination or the finding by this Court that this is a procedure or a proceeding where an individual, if he loses his freedom even though conditional suffers a grievous loss and therefore due process applies and the question is what process is due.

In Morrissey, the Court recommends and suggests that’s constitutionally mandated for a parolee that the procedure include a written notice, a disclosure of the evidence against the parolee, an opportunity to be heard in person.

Warren E. Burger:

Well, did it require a disclosure of evidence or recital of the ultimate facts or pleading in sense?

William M. Coffey:

The recital of the conditions is alleged to violate and the basis of the issue.

Warren E. Burger:

Not the evidence against him.

William M. Coffey:

I’m sorry.

And the basis on which you claim he violated the conditions of his parole.

An opportunity to be heard, to present witnesses, documentary evidence and right to confront and cross examine witnesses with the exception that you don’t have the right of confrontation if there’s a determination that it’s a danger to the witnesses.

Then he is entitled to the neutral and detached officer and he is also entitled to written statement of the evidence relied on in the reasons for revoking the parole.

William M. Coffey:

Now, to grant that right to parolees and to recognize that a parolee is entitled constitutionally to that kind of a hearing suggests there is no real distinction or difference between probationers and parolees.

And in fact, with a parolee, you are dealing with someone that has been in the institution, who has served the sentence and who has – it is just the questions as whether he is going to be returned.

With the probationer, you are dealing with a person who has never been in the institution.

And in Wisconsin, that the judicial determination made at the time someone is placed on probation is that the person is not likely again to commit crime and he is not a threat to the community and therefore he should not suffer the penalty of incarceration.

Warren E. Burger:

Do you think, if he in fact then commit some time what happens to all these theories?

William M. Coffey:

Well, at least at the moment probation is granted that’s the determination that is made. Subsequent events may prove that to be erroneous and subsequent events proved many things erroneous.

Warren E. Burger:

The probation, by and large or at least to put it in other way probation is granted to first defenders as the largest single class of all probationers, isn’t that correct?

William M. Coffey:

I believe that would be accurate, yes.

And then this is an individual who has never been put in the penal institution.

So I believe that all of the reasoning and all of the rationale with Morrissey and parolees applies with equal force to the probationer and that the same hearing requirements should be required in terms of the probationer as in the parolee.

The question in this case is if Morrissey is extended to probation revocation proceedings and the same type of hearing as is set forth in Morrissey is required in the probation revocation proceedings, does that mean also that the individual is entitled to be represented by counsel?

He is a counsel of his own choosing, a retained counsel that is Court appointed counsel, so I think then the basis of some decisions Goldberg versus Kelly and the like of this Court, there could be an argument made that the person that’s in the position to retain his own, his own attorney under the precedence of this Court is clearly entitled to be represented by a counsel and the only really open question is whether the indigent is entitled to be represented by appointed counsel.

I wouldn’t —

Does Wisconsin permit lawyers to be present with the petitioner?

William M. Coffey:

Yes they do Your Honor.

It’s interesting that Scarpelli arises in to a Racine County for five or six years prior to Hahn versus Burke or any of these cases.

The State of Wisconsin, Milwaukee County which is the most populous county in the State by a large number is a city of the first class.

In Milwaukee County for five or six years prior to 1970, probation violators were given a hearing and a lawyer.

The only places, you didn’t get a hearing and a lawyer were in counties outside of Milwaukee County and so that however since these cases, the Wisconsin Supreme Court has decided that both probationers and parolees are entitled to hearings and they also have decided that they are entitled to be represented by lawyers, that they are entitled to be represented by Court appointed lawyers if they cannot afford to hire their own.

So, this is under the — this is based on the federal Constitution of the Wisconsin Supreme Court?

William M. Coffey:

Yes sir.

Or under the Wisconsin Constitution?

William M. Coffey:

Under the federal Constitution.

Warren E. Burger:

Is the due process clause of the Wisconsin Constitution essentially the same as the federal?

William M. Coffey:

Yes it is Your Honor.

It’s almost word for word.

Warren E. Burger:

Well, did they decide that Due Process Clause or under the Sixth Amendment.

William M. Coffey:

Under the Due Process Clause, sir.

Warren E. Burger:

Just right across the board on all cases?

William M. Coffey:

Well what happened — what happened is this kind of law involved procedure.

William M. Coffey:

Hahn versus Burke was decided by the Seventh Circuit Court of Appeals said you had a right to a hearing in a probation revocation case.

After Hahn v. Burke, the Wisconsin Supreme Court decided State ex rel. Johnson v. Cady and said that probationers and parolees were entitled to hearings prior to the revocation — but they were not entitled to Court appointed counsel.

Then, Scarpelli was decided by United States District Court and then by the Seventh Circuit Court of Appeals then the United States — then the Wisconsin Supreme Court decided State ex rel Bernal to be someone that was involved.

The juvenile said, he had to have a right — he had a right to be represented by a lawyer at his probation revocation proceeding and they later decided State the all strike which are cited in the brief and also held that an adult was entitled to (Voice Overlap).

But what about the situation where parole revocation is based on a on or a report will be based on conviction of another crime.

That a certified copy of the conviction present, they keep the man there without counsel and they revoke his hearing, they revoke his probation.

In that situation would the revocation be invalid with the absence of counsel?

William M. Coffey:

I think that’s the one situation where it probably could be a valid distinction between a hearing and a right to award because it’s pretty irrefutable if you have amended some probation.

Do you think that if there were due process arguments in those situations where it would’ve been critical to have counsel present, you should have had counsel but it’s beyond the situations where it is?

William M. Coffey:

I think you could draw that distinction.

I have some problems with it.

I think my own view would be that it’s much simpler to say that he has the right to have a hearing and he has the right to have a lawyer because —

Well, with Wisconsin Supreme Court has it drawn that line?

William M. Coffey:

That’s what they say.

I mean have not — have they drawn any line at all?

William M. Coffey:

No, they have not.

If the United States District Court —

If they purported to be implying the federal Constitution.

William M. Coffey:

That’s correct Your Honor.

William H. Rehnquist:

Mr. Coffey, if this Court should disagree with the Seventh Circuit decision in this case and say that counsel is not required in a probation revocation hearing, would there be an independent State right to counsel either under a case law or statute in Wisconsin apart from the federal Constitution?

William M. Coffey:

Well, the Wisconsin, I assume that if this Court rejects the argument that counsel is required at probation or parole revocation proceedings, that the Wisconsin Supreme Court may very well reevaluate its position.

William H. Rehnquist:

Since it depended on the federal Constitution.

William M. Coffey:

And that I think that they decided purely as a matter of federal constitution.

Byron R. White:

Well, you have told us that in the sequence of I, thought you said of the Supreme Court cases in the Wisconsin, there was a stage where they said there was no requirement to appoint counsel at one stage.

William M. Coffey:

That’s correct.

Byron R. White:

And it was only after another Seventh Circuit case, this one came along that they then said alright then now we must have right to counsel.

William M. Coffey:

That’s correct, that’s correct Justice.

Now, the reason I say that I believe or I think it more appropriate to say that there is a requirement of a hearing and I think there is a requirement to counsel is that in the case you do have the irrefutable fact of a subsequent conviction, lawyers have things to do that is applying being many lawyers are not going to be made defendants around who will say, “Gee, I want to hear you.”

Before you can revoke my probation because even though I was just convicted down the hall of a subsequent criminal sentence.

Byron R. White:

Well, I thought Mr. Platz suggested earlier though there have been instances in Wisconsin where a subsequent conviction didn’t necessarily was out of the revocation of parole?

William M. Coffey:

My own experience — they’re not in the position to parole.

Mr. Platz and that is my own experience would be that the subsequent — I have never run into the case where the subsequent conviction of another crime has not resulted in the revocation of parole.

I have run into the situation where the subsequent conviction of another offense has not resulted in the revocation of probation but not in the parole but I’m not in the position to say that that’s not the case that may well happen but I think what’s important when we talk about these hearings and when we say we are going to set up these procedures and afford probationers, the rights of the Morrissey hearing is we have to recognize that their right is really meaningless if he doesn’t have an attorney.

These people are in jail.

First of all, most times anyone is facing a probation or a parole revocation, the man is in jail and so say, you can call witnesses and you can produce documentary evidence and you can do this and you can do that.

This is a man that’s confined.

He can’t do anything.

He gets — if he’s lucky he gets one phone call a day out of county jail, he can send the letter and hope people show up, but he has no way of effectively communicating with anyone in terms of preparing his defense, if he has a defense.

And if he has counsel, counsel is able to do that.

I think also important is the ABA recognizes the function of a lawyer, the role that the lawyer can play and the ABA minimum standards for criminal justice, the standards relating to probation.

American Bar Association recommendation is that there are people facing probation revocation being provided with counsel.

And they state, the central task of ascertaining whether the prisoners committed the ex-alleged and measuring the acts proven against the standard to which he was obliged to conform is precisely the business of the criminal trial itself where the right to the assistance of counsel has been recognized as one of the immutable principles of justice.

Indeed, many confess revocation proceedings, the conduct charged actually constitutes the commission of a criminal act.

It would seem patently at war with the central concept of procedural justice to deny to a person his liberty at stake, the opportunity to hear and meet the specific charge against him with the benefit of counsel.

In this case, in Wisconsin as I’m sure in most other places, Gerald Scarpelli was on seven years probation.

Gerald Scarpelli could have done six years, 11 months and ten days on probation and he could then have had his probation revoked at a 15-year sentence executed, and he would have received no credit for the six years, 11 months and whatever number of days it was, he was on probation because it’s dead time.

When a man is facing the possible loss of 15 years of his life in a very substantial period of incarceration in a penal institution, it seems to me that if you’re going to give me a hearing which I think is and should be constitutionally mandated and required that to make that hearing meaningful and to have form and not just to have form but to have substance to the hearing.

There has to be a counsel involved.

I think that this Court pointed out in Chief Justice Burger’s opinion in Morrissey, the person running the hearing and the people that set up the rules and the procedures can see to it that the hearing is conducted to only issues that are germane and relevant to the determination as to whether probation should be revoked.

Well, again I asked though that since you’re relying on Due Process Clause you are nevertheless saying or are you saying that has the invariable principle or invariable rule, you must have counsel with probation and parole revocation hearing.

William M. Coffey:

Yes sir.

Warren E. Burger:

Is it possible counsel that the processes of probation and parole will — could get so weighted down with burdens that as a policy decision the states might say for themselves, apart from the federal Government that it’s just too difficult to get this kind of a program working and so we’ll abandon it.

Is that possible to do?

William M. Coffey:

I would only state — I can only state in response, Chief Justice that yes I think sure there’s a possibility of that if the persons that set up the procedures and conduct the hearings allow them to become too cumbersome and to too much like a criminal trial.

Yes, but I don’t think there’s any need for that.

I don’t think that’s what anyone is asking for or requiring and I think also in —

Byron R. White:

You mean lawyers — you don’t think appointed lawyers will turn these proceedings into criminal trials or make them as close to — them as possible?

William M. Coffey:

I suggest, Mr. Justice White, that criminal lawyers will do what they’re permitted to do and if you have a hearing examiner or you have a procedure adopted in a particular state that will allow the criminal lawyer to turn it into criminal trial, he may very well.

But I suggest, that I think Morrissey makes it clear that makes it clear that that’s not the procedure or the requirement this Court is setting up and that it’s the obligation or the duty of those persons that are setting up these procedures to see to it and conduct those hearings in a way that they don’t become criminal trials.

Warren E. Burger:

If the State of Wisconsin for example, created a core staff of lawyers attached to these institutions of confinement on a permanent basis and just by rotation furnished them as counsel, would that satisfy your due process claim to counsel?

William M. Coffey:

I think Your Honor anytime you provide legal counsel to affecting the systems to counsel, yes it satisfies the due process claim.

I also think that has been suggested in —

Warren E. Burger:

Argersinger.

William M. Coffey:

Argersinger and probably also in Morrissey.

The University of Wisconsin Law School, if a clinical program set up that walk on the State institution.

Warren E. Burger:

Do you think these have to be lawyers admitted to practice or can they be trained personnel short of being lawyers admitted to practice law?

William M. Coffey:

I would have no — I personally would have no difficulty with trained persons other than lawyers conducting the hearings or representing the defendants as long as someone was in a position to determine whether or not the man had a defense or anything in mitigation of the violation that’s alleged to.

Byron R. White:

Do you know, other than just legal argument which you’ve presented to us, are there some empirical considerations that you might advert to?

Are there sets of studies made that indicate that probation parole revocations are particularly unreliable or if there have great miscarriages of justice or is it this just a deductive approach that due process requires hearings, due process requires lawyers and so on?

William M. Coffey:

I can’t cite the Court to any study as such but —

Byron R. White:

You just know that it’s unreliable unless — without a lawyer?

William M. Coffey:

I defended — been a criminal lawyer for some eight or nine years now.

I’ve been in a lot of probation revocation proceedings.

I would hate to have in some days my freedom taken away from and some of the basis on which I have seen people go to jail.

Byron R. White:

So, your answer is yes, there as some empirical considerations based on your own observations?

William M. Coffey:

Yes.

Byron R. White:

A lot of justices could be done at parole revocation hearing.

William M. Coffey:

As I question about when you give someone a standard as involved in Scarperlli association with known criminal.

What is known criminal?

In Wisconsin up until two or three months ago, traffic offenses were criminal offenses.

Warren E. Burger:

Oh, in Scarpelli’s case, it was pretty well established that he was associating with the known criminal because the man was shot and killed by the police in the course of committing a robbery, wasn’t he?

William M. Coffey:

He was not shot — he was shot, he was not killed.

Warren E. Burger:

And he died that shortly after?

William M. Coffey:

No, that was Scarpelli’s claim was that he was told —

Warren E. Burger:

Oh, I see.

William M. Coffey:

— to induce the confession that the other man didn’t recover.

But as my understanding was that he had recovered.

Warren E. Burger:

But at least made a reasonable case that he was associating with known criminals?

William M. Coffey:

Yes, in Scarpelli’s case, fine.

Maybe you have what’s known as known criminal but I — you know, when you give someone, a probation officer, a standard such as bad — don’t associate with people of bad character etcetera, I mean that’s really a vague, vague standard to have someone making a determination or to send someone to prison.

Warren E. Burger:

Mr. Coffey, you have given us your subjective evaluation and these things are some things are sometimes helpful?

Your own evaluation based on your own experience but from that same experience would you say that there’s any evidence that probation and parole officers tend to be prosecution-minded that they’re trying to get people off the street and back into institutions or is the contrary?

William M. Coffey:

I would think Mr. Chief Justice, there are probably as many as answers that question as our probation parole officers.

I don’t mean to stand here and suggest that any large percentage of probation parole officers are in a hurry to put people back in institutions but probation and parole officers are human.

They’re subject to the same deficiencies as the rest of us.

That personal — personality conflicts and —

Warren E. Burger:

Isn’t that the widely accepted the proposition in community of professional probation and parole people that every return to the prison represents a failure of the supervising officer?

Isn’t that our own standard?

William M. Coffey:

I read that in the material that Mr. Platz (Voice Overlap).

Warren E. Burger:

I think you read as (Voice Overlap).

William M. Coffey:

An addendum to his brief.

Warren E. Burger:

Probably in the Morrissey opinion also.

William M. Coffey:

But I don’t find this probably — but that’s corrected this also.

I don’t know how anyone arrived at that conclusion.

Yes, I would think that probation officer probably would be slightly irritated upon the return of someone to probation and going to the institution.

I’m not sure that he would necessarily take it as a failure that is a personal failure.

He may very well take it as being a someone not demonstrating good faith with him and cooperation with him and therefore maybe he shouldn’t be as helpful and —

Warren E. Burger:

You’re converting your men to an adversary now?

William M. Coffey:

I think they are Chief Justice, I really do.

I think they have a great deal of authority, they have a great deal power and they don’t have a lot of guidelines and standards and I really believe and I really feel that it’s something that there does have to be check and I don’t think a man’s freedom or rights should really depend on something we all believed to be and hope to be the good faith and the good intension of the supervising agent.

William H. Rehnquist:

Mr. Coffey, in Milwaukee County which I take it as some history of hearings on different parole revocation, is there anything corresponding to a prosecuting attorney the way you have in a criminal case or is it more or less just the hearing officer calling a bunch of people before him?

William M. Coffey:

In the probation revocation proceedings that occurred in Milwaukee County prior to the adoption of the new procedures mandated by Morrissey, the hearings were in Court in Milwaukee County.

That was only in Milwaukee County.

There were departmental decisions outside the Milwaukee County.

But in Milwaukee County the hearing was in Court, the probation officer was called and sworn as a witness.

Usually, the presiding judge asked the probation officer, the questions in terms of do you have a report to make but the District Attorney was present and the defense counsel was present and the conclusion of the agent’s report to the Court, counsel for both of the district attorney officer and the defendants were entitled to cross examine or ask questions to the agent and then the Court made its determination.

Potter Stewart:

Were you allowed to sum up?

William M. Coffey:

Pardon me?

Potter Stewart:

Counsel allowed to sum up?

William M. Coffey:

Yes sir.

William M. Coffey:

Thank you.

Warren E. Burger:

Thank you, Mr. Coffey.

Thank you, Mr. Platz.

The case is submitted.