Gray v. Netherland Page 2

Gray v. Netherland general information

Media for Gray v. Netherland

Audio Transcription for Oral Argument - April 15, 1996 in Gray v. Netherland

Mark E. Olive:

Both.

Anthony M. Kennedy:

--regardless of the matter... of the amount of time he had to meet it?

Mark E. Olive:

That was one ground.

Anthony M. Kennedy:

All right.

And if that's one ground, it seems to me that that was the objection that was made.

It's true that they talk about, that you didn't have time, but there was no request for a continuance.

Mark E. Olive:

Well--

Anthony M. Kennedy:

And that could be a strategic choice.

Mark E. Olive:

--The direct quote, and to me the letter... at least the spirit, if not the letter of the request is on page 780 of the record, and this is after Tucker testified.

We were prepared for that.

That is, the information that the Commonwealth told us they were going to introduce, the Tucker statements, we were prepared for that, that's all right, but we're not prepared for this, and the court's response to, you're not prepared, could have been to grant a continuance if they were entitled to be prepared, or to exclude the evidence.

William H. Rehnquist:

Was there a motion for a continuance?

Mark E. Olive:

The words--

William H. Rehnquist:

You can answer that question yes or no.

Mark E. Olive:

--No, there was... the words, we move for a continuance, were not spoken, but under the circumstances of the case, it could hardly be interpreted to me in any other fashion.

At least there is record support for, we're not prepared to go forward, as a motion for a continuance--

Ruth Bader Ginsburg:

Mr. Olive, where did the district judge get this notion.

The district judge said, despite the defense plea for additional time to prepare, the State trial court proceeded without a break.

That implies that there was a request comparable to one for a continuance.

Mark E. Olive:

--And those record citations are to the State court trial record that are in the opinion at that point.

Ruth Bader Ginsburg:

But there was no explicit plea for additional time, as distinguished from exclusion.

Mark E. Olive:

It is quite true the words were not spoken, please continue this case, but I... the... it has the same effect, and let me say why--

Antonin Scalia:

But it's not just yet, it's that the words were spoken, please exclude this evidence.

Mark E. Olive:

--That's correct, but the court was placed... the court was observing defense counsel in a predicament, and the court had been there from the beginning of the predicament to the--

Antonin Scalia:

Maybe the court should have sua sponte proposed this alternative.

I mean, that's another possible argument you have.

Mark E. Olive:

--I think that... that's true, and perhaps it is a due process violation when the court--

David H. Souter:

Was that or any other series of arguments addressing this point developed in the Virginia courts?

Mark E. Olive:

--On direct appeal, the issue of whether there should have been a continuance or not, or--

David H. Souter:

Yes, whether you were derelict, or trial counsel was derelict in failing exclusively to ask for a continuance.