Green v. United States – Oral Argument – April 25, 1957

Media for Green v. United States

Audio Transcription for Oral Reargument – October 16, 1957 (Part 2) in Green v. United States
Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Earl Warren:

Number 589, Everett D. Green, Petitioner, versus United States of America.

Mr. Blow.

Mr. Blow, reply.

George Blow:

Yes, that is correct, Your Honor.

May it please the Court.

Nearly four years ago on the 26th of May 1953, a fire was reported at a Brownstone house on Massachusetts Avenue in the District of Columbia.

Two people lived in this house.

One was the petitioner; the other was an elderly lady and in blood who shared the house with him for a number of years prior to the fire.

She was found in her bedroom by a fireman, taken outside and soon thereafter pronounced dead.

Petitioner was found in the basement bathtub of this house, lying facedown in a pool of water suffering from several — what turned out to be ice pick wounds in his chest and two in his neck.

And apparent —

Harold Burton:

(Inaudible)

George Blow:

Yes, Your Honor.

And apparently unconscious.

He was carried out to the lawn, administered oxygen and an ambulance were secured to take him to emergency hospital.

On investigation of this fire, it appeared that it had been deliberately set.

And since the house was found to be locked, and since all but one window in the house was found to be closed, suspicion immediately pointed the petitioners as the author of the fire.

Now, the petitioner was kept at emergency hospital until approximately 2:10 p.m. on the afternoon of May 26th at which time he was taken by the police to the strong room at the District of Columbia General Hospital.

He was kept there until the morning — late in the morning of May 28 at which time he was taken by the police to the deputy coroner and who acted as committing magistrate, and for the first time advised that he had a right to counsel, that he had a right not to make a statement, that any statement might be used against him.

Earl Warren:

Was he bedridden while he was in the hospital?

George Blow:

Yes, Your Honor, he was.

He was bedridden though the police and Fire Department inspectors testified that when they interrogated him, he was able to stand up and some said that he was able to sit up on the bed, that was in controversy, Your Honor.

Nevertheless, he was in — in a bed in this locked ward.

The deputy coroner committed him to the custody of the Attorney General to await grand jury action.

The grand jury, very shortly thereafter, came up with a two-count indictment.

Now, the first count of that indictment which is found at pages 2 and 3 of this record read, “On or about May 26, 1953 within the District of Columbia, Everett D. Green maliciously did burn and caused to be burned the certain building known as 1115 Massachusetts Avenue, the property of Gerald Gray (ph).”

The second count in that same indictment incorporated the language of the first and provided on or about May 26, 1953 within the District of Columbia, Everett D.Green committed the offense of arson.

That is to say, he maliciously did burn and caused to be burned a certain building known as 1115 Massachusetts Avenue, North west, the property of Gerald Gray (ph).

And in perpetrating the offense of arson, a fore set, caused Bettie Brown to inhale certain gases, the inhalation of which resulted in her death within the District of Columbia on or about May 26, 1953.

Thus, while the first count charged the petitioner with the offense of arson under Section 401 of the District of Columbia Code.

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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George Blow:

The second count, in addition to charging him with arson, charged him with responsibility for the consequent death which under the District of Columbia Code is murder in the first degree.

And that section of the Code reads in this way.

“Whoever, being of sound memory and discretion, without purpose so to do kills another and perpetrating an arson as defined in Section 401 is guilty of murder in the first degree.”

To this indictment, the defendant pled not guilty.

At the conclusion of his first trial, the jury was fully and properly instructed that if they believe that the defendant was perpetrating an arson and that in the perpetration of this arson, deceased inhaled certain gasses which caused her death, they were to return a verdict of first degree murder against him.

And of course they were instructed that they could acquit him.

But — and here we find the trial judge on his own motion instructing the jury that they could also find the defendant guilty of murder in the second degree.

The jury retired to consider its verdict and came back and reported to the Court.

We find the defendant guilty of arson on count one.

We find the defendant guilty of second degree murder on the second count.

And on March 19, 1954, the Court adjudged the petitioner guilty of arson and of second degree murder.

Now, this conviction of arson was never appealed.

The defendant has served his sentence on that charge.

The sentence was complete on March 19, 1957.

But he did appeal his conviction of second degree murder and he contended that there was no evidence in the record, at his first trial, to sustain a conviction of second degree murder.

And this contention was accepted by the majority of the three-judge bench which heard argument on his first appeal.

And that court therefore, reversed the case and remanded to the District Court.

Once in the District Court, when it appeared that the defendant was to be prosecuted again by the Government on the same indictment on a charge of first degree felony murder, he interposed a motion to dismiss the indictment on the ground of former jeopardy.

This motion was denied by the trial judge.

The trial proceeded and resulted in the conviction, as originally charged, of murder in the first degree.

The mandatory sentence of death was imposed and petitioner brought this appeal.

Now, we have briefed four arguments for the petitioner and the first two involved former jeopardy.

Should this Court sustain either, we submit that it would be proper to order the defendant released and further proceedings against him barred.

The second two, involved the question of a new trial.

We feel that if our contention on double jeopardy is overruled, the trial which this man have, his second trial was characterized by two errors which must result in it being vacated and sent back for a new trial.

Of these four, outlining the brief, the first concerns the extent of waiver that will be presumed in an appeal.

The second relies on the rule that unappealed conviction of a lesser included offense in the offense charged in the indictment must — are subsequent proceedings on the higher charge.

The third concerns the admission of statements which this man made to the police officers during a period of nearly two and a half days prior to this arraignment and prior to his being advised concerns.

And we feel those should be and excluded under the rule promulgated by this Court in McNabb versus the United States.

Are they confessions?

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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George Blow:

They were not confessions, Your Honor.

They were incriminating statements.

They were — there were some statements designed to be exculpatory.

Nevertheless, they were given under circumstances that were inherently untrustworthy.

They were vitally important to the Government’s case.And since the decision of this Court in Upper versus the United States, we feel that there is no real basis for distinguishing between an exculpatory statement which hangs the petitioner or a confession which does the same thing.

William J. Brennan, Jr.:

Was he under arrest when he was taken to the strong room at the hospital?

George Blow:

He was taken by the police with a police guard.

William J. Brennan, Jr.:

Under arrest?

George Blow:

Yes, Your Honor.

He was first interrogated at 10 o’clock in the morning by Detective Sergeant Couture.

That — that — know it at 8:45, that was within an hour of his being taken out of their house.

And at that time Detective Sergeant Couture called the third precinct and asked them to send a guard down.

Of — the third precinct didn’t so when Couture went back at 10 o’clock, he had to call up again to get a guard for this man.

William J. Brennan, Jr.:

Now, how long after he was brought to the hospital did you say the first statement was taken?

George Blow:

The first questioning took place at 8:30 or 08:45.

The first statement was taken at 10 o’clock.

William J. Brennan, Jr.:

And the first — the questioning — the first questioning was not at the hospital or what?

George Blow:

The first questioning was while the man was on the emergency table —

William J. Brennan, Jr.:

At the hospital.

George Blow:

— at emergency hospital.

And his wounds hadn’t been treated at that time.

William J. Brennan, Jr.:

Now, which statements is it that were introduced?

George Blow:

The statements which we complain of were testified too by police and Fire Department inspectors.

On — they are of different types.

The first we complain of were made on May 28 at 9 o’clock in the morning before the man was taken before the committing magistrate.

He was to be taken at 11 o’clock and discharged at that time of — so that he could be taken.

At that time, he made the remark in response to questioning by detective that he had told people that if they ever threw him out of their house, he was going to blow it up and blow his brains out.

At his trial, both these Detective Sergeant Couture and Detective Sergeant Clark testified this remark, it showed malice.

It may have showed any — the prejudicial effect of such a remark can’t — can’t be under us.

William J. Brennan, Jr.:

And how long had elapsed, two days before he made that statement?

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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George Blow:

Over two days.

William J. Brennan, Jr.:

Over two days.

Now, what’s the other statement of plaintiff?

George Blow:

He made statements from the very beginning which were used as an affirmative part of the Government, this case.

We’ve put this down in chronological order at page 26 of our brief, to this Court.

At the bottom of page 27, Sergeant Clark testified that he had asked Green whether he came down the stairs, the front stairs or the back stairs.

That Detective Sergeant testified.

On further questioning, he changed his story and told me that he went down the back staircase.

Couture testified that Green stated he did not stop on the first floor and this was vitally important because the defendant later testified, as it knew — Government knew he would that he stopped on the first floor to telephone a friend to ignore a suicide note which is written and mailed about midnight that night.

He nowhere mentioned that he have found Miss Brown dead before he went to bed that evening.

Now, that was vitally important.

In that, the Government used it to show that he could not be possibly be telling the truth at any time while he was on the stand.

And the Government set this up deliberately or by asking the policemen and the Department of — with the Fire Department inspectors.

“Did you ask him, what was his answer?”

The same thing with regard to the letter, “Did you ask him whether he had written a letter?”

“I just so happen I did ask him and he said no.

And he said no until I found the letter and presented it to him on March — on — on 28th of May.”

There wasn’t a shred of defense left by the time this testimony was introduced because they had taken these remarks which the defendant made while in the hospital and introduced to show that nothing but the circumstantial evidence of what happened in that house could be believed.

Felix Frankfurter:

May I ask Mr. Blow, whether on your second point, the jury didn’t bring in a conviction for asking but you say that was necessarily included in their finding of guilt by way of arson?

George Blow:

Yes, Your Honor.

We looked at the indictment and we say that though conviction of any crime could be based on that indictment unless arson were proved.

If Your Honors will permit, turning to the first point which concerns the waiver of jeopardy in this case, there is no doubt whatsoever but that the defendant was in jeopardy at his first trial on a charge of felony murder as set forth in the statute and his indictment.

And for reasons known only to themselves, the members of the jury did not return a verdict of the crime with which the defendant was charged.

Still, this second degree of conviction —

Felix Frankfurter:

Why do you say that?

The —

George Blow:

Pardon?

Felix Frankfurter:

The charge of murder was before the jury in view of the fact that you motion was denied?

George Blow:

Pardon me, Your Honor?

Felix Frankfurter:

The — the charge for murder was before the jury since your motion to dismiss — that found, as I understood you, was denied at the second trial.

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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George Blow:

At the second trial.

Yes, yes, of course, murder was before the jury on the second trial because our motion to dismiss was denied.

But at the first trial, murder was also before the jury.

Since the judge properly instructed them that if they believed this woman died in the fire, they should return the verdict to first degree murder and they didn’t.

Felix Frankfurter:

Did they return any verdict on the murder charge?

George Blow:

Not on that instruction, Your Honor.

They returned the verdict of second degree murder because the trial judge had instructed them they could.

Felix Frankfurter:

As the implication was they must have found him not guilty of — of —

George Blow:

Well, Your Honor, they didn’t find him —

Felix Frankfurter:

That’s right.

George Blow:

— not guilty —

Felix Frankfurter:

But he — therefore —

George Blow:

— but we don’t know why.

We don’t know why but we can speculate on that.

William J. Brennan, Jr.:

Well, are you arguing at all that the — to bring in on the first — on the first trial on the murder indictment, a conviction of second degree murder is no better than as they brought in a verdict of guilty of robbery or some other — other —

George Blow:

That is exactly what we mean, sir.

William J. Brennan, Jr.:

Well, are you arguing further from that that because they did bring in an entirely impermissible verdict that they must also be taken to have acquitted him of the first degree murder charge?

George Blow:

Yes, Your Honor.

William J. Brennan, Jr.:

So that on that ground, he’s been acquitted of the first degree murder charge upon which they tried him the second time and upon which he’s had the death sentence.

George Blow:

That is correct, Your Honor.

And that relates to — to the very old idea of the common law.

Well, initially, a common law, no man — a man could be denied a trial — a new trial or an appeal altogether since under the strict language of double jeopardy provisions, he couldn’t be put in jeopardy a second time.

And as one Circuit Court observed, I think in 1836 of this view of the Constitution or of the common law rule of double jeopardy, guaranteed to a defendant the right of being hanged instead of to — to save him from the danger of a new trial.

Now, that result was so obviously irrational.

That the common law courts in construing provisions against second jeopardy, implied a waiver so as to permit the defendant to waive jeopardy as to the degree of offense of which he was previously convicted.

Now, this waiver was obviously in accord with the desire of — of a defendant.

He — if he were tried for — for — of robbery and — and convict and sentenced to 20 years, he couldn’t loose anything by being retried for robbery of the first waiver.

And our Appendix A sets forth a list of the 48 States of the United States of America.

And that appendix shows that 23 courts adhered or found in the common law, that rule of limited waiver.

And they said this is done because it’s in the best interest of the accused.

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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William J. Brennan, Jr.:

Well, is that an argument then that in this case, his appeal from the utterly invalid, I gather you considered it, verdict of second degree murder, could not in any wise be constituted as a waiver of the acquittal which you say is implicit in that verdict —

George Blow:

Your Honor, the —

William J. Brennan, Jr.:

— on the first degree murder.

George Blow:

— well certainly — certainly, in the —

William J. Brennan, Jr.:

— I know, but is that —

George Blow:

— an acquittal.

William J. Brennan, Jr.:

— is that what you —

George Blow:

We — we haven’t apply — an implied acquittal in the sense that the jury was silent as to the offense with which he was charged in the offense of first degree murder on which they were distracted.

William J. Brennan, Jr.:

No, but my question is, is it your argument that the second degree murder verdict which was appealed was utterly invalid and as indeed the Circuit Court or the Court of Appeals held and set it aside.

But you say the appeal from that verdict was not in any wise a waiver of the —

George Blow:

(Voice Overlap) —

William J. Brennan, Jr.:

— acquittal of the first degree —

George Blow:

— of — of jeopardy.

The Constitution says, “No — no man shall be for the same offense, twice put in jeopardy of life.”

Now, he was in jeopardy on the first degree charge and he wasn’t (Voice Overlap) —

William J. Brennan, Jr.:

Well, I — I thought your argument was he was more than just in jeopardy that he was in fact acquitted of the first degree charge in the first trial.

George Blow:

Well, the —

William J. Brennan, Jr.:

If not in words in any event because of the form of the verdict that came in.

George Blow:

He was in fact acquitted by the silence of the jury on the count with which he was charged.

But that isn’t — we — we feel that’s not the important thing whether — whether an acquittal is expressed or implied, the — the important thing seems to be to us that here was a clear case of once in jeopardy.

William J. Brennan, Jr.:

Well — well, why put it that way if in fact he was acquitted, then he can’t be tried a second time on the same charge, can he?

Whether it’s acquittal by implication or expressly or otherwise?

George Blow:

That’s correct, Your Honor, because —

William J. Brennan, Jr.:

Well, are you taking that position as to this?

George Blow:

We’re taking the position that there was a very definite acquittal in the jury silence on the first degree charge.

And — and jeopardy comes in, to protect him against the second trial on the same charge.

Now — now, when — when we’re talking about common law of courts, we’re — we’re not talking about courts or be at federal courts, courts in territories of the United States where there is no tradition of the common law.

And this Court had occasion on — in 1904 and 1905 to examine the criminal procedures based on the Spanish which were in effect in the Philippine Islands.

Now, those procedures more resembled the procedures in some of our state police courts than they did those in effect in the federal courts of the United States today.

In that, a man convicted from this misdemeanor in many of our States and then charged with a traffic violation, may be tried by a court, not of record without a jury sentenced to ten days and either serve his sentence, in which case it is a bar for further proceedings or at his own motion, reopened the proceedings in a Court of Record before a jury and in that case suffer the risk of being found guilty by a jury of a higher offense than that which he was previously convicted by the police court judge and serving a corresponding in ordinance to be a sentence.

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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George Blow:

Now in the Philippines, this procedure apply in even the most serious cases.

And in Trono — in Trono versus the United States, Trono and his two codefendants were tried on an information by a trial magistrate without a jury.

When they exercised their right of appeal, the Audencia, the Supreme Court of the Philippine Islands didn’t send it back for a new trial, they substituted their own findings of fact on the charge and imposed the more — imposed a verdict of a more — guilty of a more serious offense, imposed a more serious sentence.

Now, that is something very different and I think that it’s very different, is illustrated by the view which Mr. Justice Brown, one of the four justices in Trono who held that this procedure was proper —

And —

George Blow:

— in and of itself.

Mr. Justice Brown expressed his thought in a case a year before that it was in conceivable to him that Congress, when it enacted legislation for the Philippine Islands, intended to give a trial magistrate in the Philippines, the power to finally acquit the most serious offenses.

It would be as though the trial magistrate in the police courts endeavored to finally acquit a man who is guilty of murder.

He just couldn’t do it.

It wouldn’t be entrusted to him.

It was inconceivable to Mr. Justice Brown of this Court that it should be entrusted to a Philippine trial magistrate.

Therefore, he concurred in the four-judge opinion, written by Mr. Justice Peckham with this Court which held that that Philippine procedure was permissible.

Now, in that case, four justices of this Court dissented, Justice Holmes concurred in the result reached by Mr. Justice Peckham.

That four justices dissented.

And we submit that the vigor of their dissent followed from certain remarks which were made in the Peckham opinion which indicated that this result could follow, not only from the statute in the Philippines but was not antagonistic to the Double Jeopardy Clause of the Fifth Amendment.

And exactly what they feared was going to happen has happened, and the man here has — has been held, has been presumed to waive a constitutional right by exercising another right which the Congress gave him to appeal what he thought was an injustice.

And the dissenting justices in Trono set very emphatically, they did not believe that fundamental constitutional rights and statutory rights should be put in such barter.

Is it you view that if we agree with you that the consequences, we have to overrule Trono?

George Blow:

No, Your Honor.

Is not?

George Blow:

We’ve — we believe the Trono is perfectly good law for those territories where there is no history of the common law.

And we do not seek — think that Trono under — under Philippine circumstances is certainly the most reasonable result to be raised.

Earl Warren:

Didn’t the court in Trono say that they were applying the rules of organized states District Courts?

George Blow:

They said, Your Honor, in — in — before judge opinion, written by Mr. Justice Peckham, made the statement, “We may consider this problem as though it had arisen in the United States.”

And the reason they said that was because the Act of Congress which governed proceedings in the Philippines are used language similar to our Fifth Amendment prohibition against second jeopardy.

But we believe that there, we have dictum by four judges — we don’t believe that dictum is correct.

Felix Frankfurter:

Mr. Blow, you — you emphasized the fact there were only four judges in the Trono case rightly enough facing down the fact that Mr. Justice Holmes concurred in the result?

George Blow:

Yes, Your Honor.

Felix Frankfurter:

I take it — I know no more about it than you do but I take it he concurred in the result because in — the Peckham opinion didn’t go far enough.

George Blow:

Yes, Your Honor, quite correct.

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Felix Frankfurter:

The view of the dissent in Kepner.

George Blow:

Quite correct.

Felix Frankfurter:

He would — he would go way beyond what was decided in Trono.

George Blow:

Yes, that’s correct, Your Honor.

And he would — he would permit the State to appeal.

To him, there was only one jeopardy in one proceeding which went on for as along as the proceeding went on.

Felix Frankfurter:

I suggest therefore, the opinion in Trono is not four — but four — more than five.

George Blow:

But, Your Honor, so far as waiver is concerned, he said — specifically mentioned waiver and he said that to him it was inconceivable that a man should be held to waive.

Felix Frankfurter:

Well, that’s because he had a totally different —

George Blow:

Totally different approach —

Felix Frankfurter:

He has prejudice in favor of clear analysis instead of phrases.

George Blow:

Yes, Your Honor.

And — and he — he felt that there was no objection to — to a government appeal, no objection to a defendant’s appeal that the objective was to find a trial free from error to both sides.

But that fair view, Your Honor, has — to our knowledge only being accepted in — in Connecticut where —

Felix Frankfurter:

What I’m suggesting is, that you can’t head on the fact that Justice Peckham’s opinion was concurred and only by three others.

George Blow:

Except to the extent, Your Honor, that Justice Peckham relied on waiver.

Felix Frankfurter:

Yes.

George Blow:

And — and Mr. Justice Holmes did not.

Earl Warren:

Is there an accepted state rule in this field?

George Blow:

The overwhelming — the dissenting judges in Trono pointed out that the overwhelming weight of American decided cases was opposed to absolute waiver.

In other words, was opposed to the idea of extending a waiver beyond the prisoner’s needs.

And that’s true today, Your Honor, though there have been numerous statutes and constitutional amendments which this Court, in Kring versus the United States, way back in 1882, said that the States could do if they wanted to.

But when they had Kring which was exactly our situation in — in the sense that he had been convicted of a lesser degree of crime and the Government attempted on retrial to bring him to trial on a higher, this Court held that the State of Missouri could not do that because they have changed their Constitution too late that the constitutional change which would permit that course in the State of Missouri came after his first trial.

Felix Frankfurter:

Well, that was ex post facto —

George Blow:

Yes Your Honor.

Felix Frankfurter:

— cases of ex post facto.

George Blow:

Yes, Your Honor.

Passing from the Trono point, we submit that there is a second alternative bar to the defendant’s prosecution.

Felix Frankfurter:

What is the present — what is the English law on that, Mr. Blow?

George Blow:

The English law, Your Honor?

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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George Blow:

So far as I understand it, appeals are allowed in England as a matter of grace.

There is no such thing as a statutory right of appeal in England.

However, I could be mistaken.

Felix Frankfurter:

I suppose the — I should have answered myself.

In case of reversal, he goes free anyhow under the Criminal Appeals Act.

There’s no — no new trial.

If the verdict appealed from is infected with error, that’s an end of the matter.

George Blow:

But we’re not asking that — that rule to be adopted in — in the United States, Your Honor.

Our —

Felix Frankfurter:

I was wondering whether — I was wondering whether in England, where the case have arisen, where a man is convicted of a lesser offense, he appeals to the Court of Criminal Appeals, they just — they — they sustained the appeal that as they can’t be retried for the lesser offense.

Could he be retired for murders in this case as should?

George Blow:

I — I shouldn’t think so, Your Honor.

We cite —

Felix Frankfurter:

Then you’re second was a subject to operation, I think.

George Blow:

We — we cite Blackstone in our brief.

We — we cited Cooley on Blackstone.

Cooley seems to indicate that result wouldn’t be possible.

Cooley’s comment of Blackstone seems to indicate.

Felix Frankfurter:

Of course, waived — I’ve — am I right?

The story doubted whether you could waive even for purpose of appeal, isn’t it?

George Blow:

Yes, that’s correct.

Felix Frankfurter:

And yet, be overruled by this Court, isn’t that right?

George Blow:

Yes, that’s correct, Your Honor.

And if you look at the Double Jeopardy Clause, the language of it, that’s — that’s a logical result because it says, “No man shall be” —

William J. Brennan, Jr.:

Well, Mr. Blow, in this instance, if on the first trial he’d been convicted of first degree murder but with a recommendation for a life sentence and then had appealed for trial errors or otherwise and had — and the conviction had been reversed.

You have no doubt, do you, that he could have been tried again on the same indictment and there had been, the verdict brought in here without recommendation and (Voice Overlap) —

George Blow:

Well, Your — Your Honor, of — of course there is no such provision in — in the district for a recommendation of clemency.

But — but with regard —

William J. Brennan, Jr.:

There — there is none?

George Blow:

— to the question whether — whether — no, sir.

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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George Blow:

The sentence is mandatory.

William J. Brennan, Jr.:

I know.

I thought — doesn’t the jury here on a first degree conviction have started to bring in a recommendation?

George Blow:

No, sir.

Nor does the Court.

You’re — if you were found guilty of first degree murder, that sentence is mandatory.

But supposing that it were possible, there we have a question which this Court decided in Stroud versus the United States which is where you have punishments, then there is no second jeopardy.

Jeopardy relates to the offense and not the punishment.

William J. Brennan, Jr.:

Well, that’s my point.

So, the — I was trying to distinguish the situation I put to you from this one which, if I get your distinction, would be that that here in effect had been an acquittal on the first degree charge.

And that his right to that was not all affected and the advantage of that acquittal by reason of his appeal from the impermissible second degree verdict.

George Blow:

Yes.

William J. Brennan, Jr.:

Isn’t that your position?

George Blow:

Yes, sir.

Felix Frankfurter:

Can you — can you really say, as a matter of — of — what shall I say correct or valid interpretation of what a jury does when it doesn’t bring in a conviction and doesn’t bring in an acquittal in terms —

George Blow:

I’m —

Felix Frankfurter:

— and to talk that they’ve practically or inferentially acquitted him very unreal?

George Blow:

Your Honor, that’s — that’s the argument that the Government made to the Court of Appeals after his first trial —

Felix Frankfurter:

Yes.

George Blow:

and — and —

Felix Frankfurter:

It wouldn’t be the only argument of the Government that I do not accept.

All I’m saying is, that when a jury brings in — doesn’t find guilt or acquit but brings in a verdict of a different kind.

The practical fact is that for reasons that are not disclosed, they reached that verdict which they express.

George Blow:

Yes, sir.

Felix Frankfurter:

And we don’t know what went on in the jury room.

George Blow:

Right.

Felix Frankfurter:

Non constat at the arson.

If they had known the arson verdict would have been reversed, they might have brought in a murder verdict.

George Blow:

The — the second degree verdict —

Felix Frankfurter:

Pardon me?

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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George Blow:

— demeanor, the arson verdict stood.

Felix Frankfurter:

But — but we know that that’s what a jury is for, to make a human conscientious judgment within the limits that are allowed for them.

George Blow:

And properly instructed by the Court —

Felix Frankfurter:

Yes.

George Blow:

— as this first jury was.

Felix Frankfurter:

I’m merely suggesting that you cannot say except for the purposes of theoretical argument that there is an implied acquittal.

George Blow:

That is correct, I think, Your Honor.

William J. Brennan, Jr.:

Now, tell me Mr. Blow, is — is Trono this case or is it the first case I put to you, that is where there’s been a proper first degree conviction that is under the indictment and life recommendation and then the successful appeal and then back for a new trial on the same indictment, then a verdict which results in death.

Is that Trono?

George Blow:

No, Your Honor.

Because in that case, the man was convicted of the offense with which he was charged.

And an appeal of that offense could be awarded a new degree, a new trial on that degree of the offense.

If he was convicted at fist, he could be tried again for first.

The sentence has nothing to do with double jeopardy.

William J. Brennan, Jr.:

Well, let’s — let’s say then — then Trono was not this case.

Trono is the first case then, the hypothetical case I put to you and were nearly that.

George Blow:

Than — than the — than the clemency case.

This —

William J. Brennan, Jr.:

Yes.

George Blow:

— I — we don’t — we don’t say that Trono has anything to do with — with the clemency case.

It has to do — in Trono — in Trono, there were three degrees of the offense.

One was assault, one was homicide, one was murder and the — of first trial magistrate find him guilty of assault, the Audencia has own motion raised the homicide.

Now, in our second — in our second point, we say that there was a lesser included offense which wasn’t second degree murder but was arson.

And in support of that, we looked to the indictment because under the Rules of Federal Criminal Procedure is the indictment which governs.

A man can be convicted of an offense necessarily included in that charge.

And in this indictment on or about May 26, 1953, maliciously affirmed property — property of another, arson, have set up the arson and they add the clause that in perpetrating that arson caused the death of Bettie Brown.

It is a sufficient indictment under the statute in the District of Columbia.

Now, the Government agrees that the second degree is not a lesser included offense and we don’t understand how they can fail to see that arson —

William J. Brennan, Jr.:

Mr. Blow, having physical difficulty over this and hearing you at all.

George Blow:

Yes — yes, Your Honor, I’m sorry.

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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George Blow:

Under this indictment unless the defendant were proved guilty of arson, he could not be guilty of murder and perhaps he could be guilty of nothing because the killing in itself was never alleged to be anything but accidental.

And the trouble that we have at the second trial illustrates the degree to which arson and first degree murder are intertwined in this case.

The judge told the district attorney, he couldn’t introduce the conviction of arson under count one, to impeach the credibility of the defendant when he was tried on count two.

The judge at the conclusion of the trial told the jury, having them the indictment which was in two counts to disregard the first count, block one but then instructed them that in order to find guilt under the second, they had to find every single element of the offense of arson that was contained in the first count.

They put the man in the position of being tried for an offense at the same time that he was serving his sentence for having committed it.

The Government says that arson was not a lesser included offense and in support of this, it devote several pages of its brief to an analysis of New York cases which deal with assault.

Now, New York, they — they attempt to prove that the felony has to be distinct from the killing.

But New York holds that assault is a felony and their statute is in such form that any killing which occurs in the perpetration of a felony is first degree murder.

Therefore, since every killing involves an assault, they found themselves in a position where logically every murder was first degree murder and there could be no degrees of murder.

Well, to that extent, the New York courts concluded that the felony has to be a slightly different offense, those cases are assault cases.

And — and New York found itself in a very particular box there because their statute unlike ours does not enumerate the felonies which have to be proved.

Now, putting aside the question whether arson is a lesser included offense or not, the court below and the Government cite the test which has been accepted by this Court.And that test was laid down by the Supreme Judicial Court of Massachusetts in Morey versus Commonwealth and it provides, “If each statute requires proof of an additional fact which the other does not, an acquittal or a conviction under either statute does not exempt the defendant from prosecution and punishment onto the other.”

Well, of course that’s true.

But here, only one statute, 2401 which define felony murder as the killing which occurred in perpetration of one of the felonies enumerated in 401, only one statute require proof of an additional fact.

That offense we — we can’t help but conclude, is the greater offense.

Naturally, it has one more element.

But — but arson had to be proved in this trial for the defendant to be guilty of anything and he was convicted of arson at his first trial.

He never appealed that conviction.He served his sentence, all of it.

Now, if — if your First Amendment is designed to avoid multiplicity of the suits as we think it is, we — we reach the rule that the Government has to take its biggest bite at the defendant the first time.

Now, this is of course what the Government did.

It took its biggest bite but it didn’t get, it got the lesser and the lesser was arson and they should let matters rest there because the Government has no right of appeal in the United States.

I’m passing back quickly to our alternative arguments now which are the improper admission testimony and the misconduct of the prosecutor in the closing moments of the trial.

We have outlined the events which occurred in this case from the moment this man was picked out of this burning building until he was finally brought before a committing officer.

In effect when he had got to the committing officer and the committing officer advised him that he was under suspicion, that he had a right to counsel, that he had a right not to make a statement and that he had a right — that any statement used might be used against him, it was too late.

The — the horse was being stolen before — before the door was closed.

Now, the majority of the court below held that delay in arraigning a suspect cannot be unreasonable delay or illegal detention, when he is in the hospital.

Now, it’s’ true of course that this — this Court was concerned in McNabb versus the United States with someone who could have been brought before the committing magistrate and be advise.

But here, this fellow, assuming for purposes of argument was — could not be brought before the committing magistrate on the day of his arrest.

Perhaps, it’s — it’s more questionable as to the 28th, they interrogated him two hours before taking him.

Nevertheless —

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Charles E. Whittaker:

The record shows (Inaudible)

George Blow:

Yes, Your Honor.

He was released in the custody of the police at 11 a.m. on May 28th but he was interrogated at 9 a.m. on May 28.

That’s when he made those extravagant remarks, “Stop blowing up the house and blowing his brains out.”

Charles E. Whittaker:

(Inaudible)

George Blow:

Yes, that’s correct.

And before he had been advised.

Charles E. Whittaker:

(Inaudible)

George Blow:

That was questioning by the police.

Yes, Your Honor.

Questioning by the police, not pursuant (Inaudible)

George Blow:

If in fact the police could not have taken him to the committing magistrate before 11.

The — the doctor testified that — that he was released at 11 for the convenience of the police, were prepared to admit that he couldn’t have been taken before 11.

Because we think that the purpose of Rule 5 and what this Court had in mind in McNabb versus the United States was something very much bigger than simply holding on to a man so he — or presenting him to the committing magistrate so that they could file a complaint.

They were thinking of rule what after all is the purpose of Rule 5, it’s to get the man to the Commissioner so that he can be advised in accordance with Rule 5 (b) that he has these vital rights which he cannot be presumed to understand.

And —

Earl Warren:

Can it fairly be said from the record that the police waited until they got the statements they wanted before they did take him to a magistrate?

George Blow:

The court below concedes that not until 36 hours after they picked him up did they have sufficient evidence on which to base a complaint.

We just don’t know whether — whether they were holding him for that purpose or not.

It’s certainly clear, I think, they knew from the very — your suspected from the very beginning that this was their man and that they wanted a confession out of him.

Earl Warren:

And he couldn’t have gone to his own hospital, could he during that time?

George Blow:

Your Honor, this man send his last $40 in that latter to provide for flowers for the old lady’s funeral.

He had no means at all.

Earl Warren:

No.

But what I mean is, would the — would the hospital have released him if he —

George Blow:

Oh, no, Your Honor.

Earl Warren:

— had wanted to go to his own hospital?

George Blow:

No, Your Honor.

He was attended by the police during both of his interrogations at emergency and taken under guard —

Earl Warren:

Yes.

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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George Blow:

— to the strong room at the District of Columbia General Hospital.

There’s a locked barred room in which you need the police permission to enter.

It’s jail — it’s jail.

Charles E. Whittaker:

(Inaudible)

George Blow:

Yes, Your Honor.

That he was taken there that afternoon and kept there and through the next and into the next day when he was finally admitted, and finally warned.

Charles E. Whittaker:

(Inaudible)

George Blow:

Why yes, Your Honor.

This was jail.

It was jail for sick and wounded prisoners but it was jail.

There is no doubt of that.

Is — it was — that door was barred and locked and he couldn’t get out, and he couldn’t see a lawyer, and he couldn’t see any friend.

And he hadn’t the faintest idea what was going on.

Charles E. Whittaker:

(Inaudible)

George Blow:

I think he was under arrest at (Inaudible) in the morning, Your Honor.

I think he was under arrest one hour after he was picked out of that house.

When — when the detective sergeant picked up the telephone and told the third precinct to send a man over, I think he said, “To guard this gentleman.”

I — we submit he was under arrest.

And for a man who was deprived on his back of — suffering from smoke inhalation of stab wounds in his chest, stab wounds in his neck.You don’t need very many policemen to guard him.

And he — we nevertheless, maintained he was under arrest at that time.

Felix Frankfurter:

Is the inference or the suggestion or the implication of what you have said that assuming the most benevolent, a non coercive purposes on the part of the police and that they couldn’t arraign him.

It was there duty to abstain entirely from questioning him.

George Blow:

No, Your Honor.

We —

Felix Frankfurter:

What is —

George Blow:

— we agreed with the Government that there are occasions when they have for a minute.

Felix Frankfurter:

It might have been this case —

George Blow:

In this case — in this case, they could question him but if they intended to use the results of that questioning against him and failed to advise him of his rights, the conclusion is inescapable that they didn’t advise him because they wanted to get something out of him and they wanted to use it against him.

We think it would not be unreasonable, Your Honor, for every policemen who stands of the District Court to testify.

Before he’s allowed to testify as to confessions or any other requirements that before he asked a question, he told the defendant that he had a right to counsel, a right not to make the statement and warned him to the fact — warned him of the fact that it might be used against him.

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Earl Warren:

As a matter of practice, do they ever arraign prisoners while they’re in that hospital?

Do you know?

George Blow:

Your Honor, I don’t believe they — to my knowledge, they don’t go out and get the committing magistrate and bring him there though that’s not an unreasonable thought either.

Felix Frankfurter:

But you say that is necessary.

They just said, there’ll be a man —

George Blow:

If they just —

Felix Frankfurter:

— or they said for this man.”

We want to ask you some questions provided you’re ready to answer.

You’re under no obligation whatever.

You don’t have to open your mouth and we advise you that if you wanted send for a lawyer and we’ll — we’ll get word to him to come here.

George Blow:

That’s all we asked, Your Honor, and that every policeman in British Isles and the British territories will do and has to do by rule of court.

Now —

Earl Warren:

Do the — or does the Government contend that you know that it is the position with the police that the only reason they didn’t take him before a magistrate was that he was ill during that period or has that question arisen?

George Blow:

We’re prepared to admit, Your Honor, that this man was too ill to be taken for a committing magistrate, the police before 9 o’clock on the morning of May 28th when he was interrogated for the last time.

We think, perhaps, that if a man was well enough to be taken out of the hospital at 11, he could be taken out at 9 when the committing magistrate was sitting.

Nevertheless, our — our point is — nevertheless, the – the vital importance of these rights and the knowledge of these rights and the extreme simplicity of requiring the police to give and the fairness of it.

Now, Your Honor in — in just a minute, I would like to discuss very briefly the closing moments of the trial or our fourth point.

The defense had finished its summation, had told the jury that whatever they individually regarded as the facts of the case that would bind everything, that there is — was a job to determine the facts of the case.

And the district attorney has the final word in the criminal case.

He represents the United States and he has the final word.

Now, we find in this record remarks which he made which says the fact, the jury didn’t have to regard the consequences of this verdict that of the trial judge would look in the facts that — that the Court of Appeals would look the facts over, would sift the facts of the case and decide by Fifth Amendment (Inaudible) that this Court if it saw fit would look the facts over and decide whether he went to the electric chair.

That there was the President of the United States, that was the Attorney General Or these remarks on page 154 of the record, we submit that after the district attorney got through them, the jury must have wondered why they where there at all.

If Your Honor please, I’d like to save a few minutes.

Earl Warren:

You may, Mr. Blow.

Mr. Sand, could you proceed please?

Leonard B. Sand:

Mr. Chief Justice and may it please the Court.

I would first like to direct myself to the question of double jeopardy apart from the unappealed conviction for arson.

And I would like to answer Mr. Justice Harlan’s question whether it would be necessary for the Court to overrule Trono, were to reverse in this case.

And it is the Government’s position that it would be necessary for the Court to overrule Trono but the converse is — is not true.

It would not be necessary for the Court to accept the full ramifications of the Trono decision to affirm here because there are peculiar unique facts in this case which make it an even clearer case, an a fortiorari case for holding that a conviction for a lesser included offense does not bar retrial for the greater offense.

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Leonard B. Sand:

There are four such factors, the Government believes present here.

The first of these is the very basis for the reversal of the first conviction and that is the defendant’s contention that is conduct at the first trial was first degree murder or nothing.

It was apparent then that a free trial was to be had.

It could only be for first degree murder.

This — this was made very explicit by the Court of Appeals and indeed it was made clear by the Court of Appeals in the opinion in which they reversed the first conviction.

There appears at page 172 and 173 of the record which is the opinion of the court below, the following.

The Court were — we were concerned however, that the obvious risk which Green was running in successfully appealing from the second degree murder conviction.

But we were assured he was aware of it.

With respect to this, we said in the opinion, referring to the opinion reversing the second degree murder conviction.

In seeking a new trial which if the evidence is substantially as before, the jury will have no choice except to find him guilty of first degree murder or to acquit him.

Green is manifestly taking a desperate chance.

He may suffer the death penalty.

William J. Brennan, Jr.:

Incidentally, is it in the felony murders?

Is it death, but the only penalty here?

Leonard B. Sand:

Yes, Your Honor, the felony murder statute provides for a mandatory death penalty.

I think Your Honor may be thinking of the statute which was involved in the — in the Mallory case.

William J. Brennan, Jr.:

Well, I was thinking that.

We had a phrase here a short while ago that —

Leonard B. Sand:

That — that was the Rigg statute where there is a — a —

William J. Brennan, Jr.:

But for this —

Leonard B. Sand:

— the power in the jury to recommend — make a recommendation with respect to the imposition of sentence.

William J. Brennan, Jr.:

But for — is it for all felony murders or just arson felony murder for which the —

Leonard B. Sand:

The — the statute enumerates the felonies in the perpetration of which a murder may — may be committed which is a felony murder and arson is the first of those enumerated felonies.

William J. Brennan, Jr.:

And that automatically follows upon conviction —

Leonard B. Sand:

Yes, Your Honor.

William J. Brennan, Jr.:

— is that it?

Leonard B. Sand:

The Court of Appeals then in the opinion which it reversed the second degree murder conviction stated, “At oral argument, we inquired of his counsel whether Green clearly understood the possible consequences of success on this appeal and we were told that the appellant who is 64 years of age says, he prefers death suspending the rest of his life in prison.”

He is entitled to a new trial.

And so it was as explicit as it could possibly be that the new trial which petitioner was seeking in appealing from his conviction was to be a trial for first degree murder.

Felix Frankfurter:

Mr. Sand, suppose — suppose the law, as declared by this Court, at the time that appeal was taken was that under a new trial, you could not be prosecuted for the larger offense for which there had not been a verdict of conviction.

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Felix Frankfurter:

Suppose there had been determinations, decision of this Court without any manifestation of — of other agreement by the defendant.

Would such a — and supposing the most solemn form an appellant in the Court of Appeals said, “I want Your Honors to know that as counsel would — if there is a reversal in this case, my time client with fully awareness of what it all means is ready to be tried on — as of first degree murder.”

Would that present a difficulty?

Leonard B. Sand:

If it they would present, indeed it would, Mr. Justice Frankfurter.

If —

Felix Frankfurter:

Is this situation —

Leonard B. Sand:

— if —

Felix Frankfurter:

— any different from the case I put?

Leonard B. Sand:

Yes, Your Honor.

The — the —

Felix Frankfurter:

I’m — I’m a part having in mind a half against, if you tried even though the death.

Leonard B. Sand:

That — the hypothetical as — as Your Honor presented it, assumed that the advice which was given to the — to the petitioner before he — he made the statement was an erroneous statement of the law.

And so there was a — there was a statement which was based on that erroneous assumption.

It’s the Government —

Felix Frankfurter:

No, I’m assuming that — that — I didn’t mean to inquire that.

I’m assuming his counsel knew that so far as — as the law itself drew any conclusion or made any determination, there couldn’t be.

The view of the dissenters, namely, in Kepner and brought this to his view was the law.

But this situation is a new one.

Defendant says, “I waived,” that whatever you call it.

That protection which I have if there’s a reversal not to be tried for the larger offense.

Leonard B. Sand:

I think —

Felix Frankfurter:

That’s what you are suggesting and you’re partly asking us to take that into account but the Court of Appeals was told he knew if there was a reversal, he’d be tried, he might get what he’d really did get, a conviction for murder.

Leonard B. Sand:

I — I think that — that it is confusing.

It befuddles the issue to — to talk in terms of waiver.

Because what we’re really concerned with is what legal consequences will attach where a prior conviction is reversed.

I make reference to this merely to show that the grounds for reversal here were unique.

Here, petitioner was saying, “My conduct, proven at the first trial was not a lesser offense.

It was a greater offense.”

Then he states, “Because of this, I cannot be retried at all because I cannot be retried for a second degree murder.

Under the facts of this case, my conduct did not constitute second degree murder.”

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Leonard B. Sand:

In effect, petitioner is now saying, “The consequence of my appealing the conviction is that I attained an immunity.”

William J. Brennan, Jr.:

Well, Mr. Sand, is — was the second degree murder under this indictment or under the statute under which it was brought an includable offense at all?

Leonard B. Sand:

I think that under this indictment which contained no allegation with respect to intent, a verdict of second degree murder could not properly be returned because this —

William J. Brennan, Jr.:

Well, in that — is that then to say to answer me that, “No.

Second degree murder is not a lesser included offense under this indictment.”

Leonard B. Sand:

It is not under this indictment but under the statute.

You — there are situations —

William J. Brennan, Jr.:

No, he — which he was tried on the same indictment both times?

Leonard B. Sand:

Yes, Your Honor.

William J. Brennan, Jr.:

And under second degree verdict, under that indictment —

Leonard B. Sand:

Yes.

William J. Brennan, Jr.:

— which I gather, you now tell me under that indictment at least, is not a lesser included offense.

Leonard B. Sand:

It — it would not be proper to return a verdict of a second degree murder under this indictment.

William J. Brennan, Jr.:

Well then — then tell me.

On the first — from what you read us now from this opinion, I gather that’s the opinion on the — and from the judgment — judgment now before us isn’t it?

Leonard B. Sand:

This —

William J. Brennan, Jr.:

That quotation as to what his counsel did.When he took the first appeal, did he affirmatively seek only a new trial or did he take the position that he had in fact by reason of the form of the verdict returned been acquitted of — of the murder charge in the indictment?

Leonard B. Sand:

He asked in the — his appeal brief in the — on — on the first appeal.

He asked merely that the judgment be reversed.

He did not specifically state what consequences be desired to follow from that.

William J. Brennan, Jr.:

Well, where — where does it?

Where does the Court of Appeals get all this stuff about his — worrying about a new trial then if they could —

Leonard B. Sand:

This was at oral argument on the first appeal.

The — the Court of Appeals has reference to —

William J. Brennan, Jr.:

As on oral arguments?

Leonard B. Sand:

— to a colloquy at oral argument on the first appeal.

William J. Brennan, Jr.:

What you’re telling is, he never did urge that there’s been an acquittal of the first degree charge or the felony murder charge —

Leonard B. Sand:

Not —

William J. Brennan, Jr.:

— on the first appeal?

Leonard B. Sand:

— not on the first appeal, Your Honor.

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Felix Frankfurter:

I haven’t — haven’t read — I haven’t looked at either brief.

Is that in you brief, this colloquy with counsel, is this counsel in Court?

Leonard B. Sand:

Yes, Your Honor.

That is the opinion of the Court both on the first appeal and on the second appeal.

A second fact, the peculiar to this case is as — as I suggested.

It is impossible to retry the defendant for second degree murder.

It is the established law that an appeal is a waiver of jeopardy and that one may be retried following such an appeal.

But as I’ve said, petitioner here is saying that the effect of the appeal should be to grant him an immunity.

William J. Brennan, Jr.:

Well — well, tell me this.

Suppose as I suggested to your adversary.

Suppose instead of bringing in a verdict of second degree murder, they brought in a verdict of robbery.

And he take it on appeal and had it set aside on the same ground that the verdict of robbery was not supportable under this indictment.

Could he be tried again just he was there?

Leonard B. Sand:

I — I think the answer is yes, Your Honor but I — I have to qualify.

Before the jury could return the verdict for robbery, there would have to be an instruction by the trial judge that that was permissible verdict.

William J. Brennan, Jr.:

Well, I thought by a hypothesis, the instruction here was utterly erroneous.

Leonard B. Sand:

It was an erroneous instruction.

Therefore, the Government asks that on retrial, that the trial be had free from that erroneous instruction.

The petitioner wishes to perpetuate the error.

He says it was error to instruct the jury at the first trial that I could be found guilty of second degree murder.

Therefore, if retried, I can be retried only for a second degree murder.

William J. Brennan, Jr.:

Oh, why is it that given the — giving the Government a second crack on trying upon an indictment under which in effect he’s actually even acquitted?

Leonard B. Sand:

Well I — I think and — and that takes me to the third peculiar factor of this case.

I think it is totally unrealistic to view the first verdict as an implied accquital.

There were two counts, a count of arson and a — a murder count.

The defendant was convicted of arson at the first trial.

He was also convicted of second degree murder.

The only evidence as to the death, the cause of the death of the victim was that it was as a result of petitioner’s arson.

Therefore, even in the verdict of the first jury, one has all the essential elements of first degree murder.

Now, the jury returned the verdict of second degree murder which they were told they might return.

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Leonard B. Sand:

And in view of the mandatory death sentence and the fact that this is a very hard case, it is entirely reasonable to suppose that — that considerations of — of sympathy led the jury to return that verdict, but it is — it is not realistic to say that the defendant was acquitted of murder.

Indeed, this Court has said with respect to the District of Columbia murder statute in the Fisher case that there is really but one crime of murder and that the difference between first degree murder and second degree murder really relate to the grades of punishment.

And so, this case becomes indeed like the Stroud case where the jury —

Felix Frankfurter:

Like to what — like to what?

Leonard B. Sand:

Like the Stroud case, if Your Honor please, in 251 U.S.

There, the defendant was convicted three times.

The first time, the verdict was simply guilty of murder.

The second time, the jury returned a verdict of guilty of murder without capital punishment, the statute there being like the District of Columbia rape statute permitting the jury to make such a recommendation.

That conviction was reversed.

The third time, the jury as did the first jury, returned a verdict of guilty of murder and the death penalty was imposed.

The contention was made to this Court that that was a violation of due process — excuse me, a violation of double jeopardy.

And this Court wrote, “The only thing that the Appellate Court could do was to award a new trial on finding error in the proceeding.”

Thus, the plaintiff in error himself invoked the action of the Court which resulted in a further trial.

In such cases, he is not placed in second jeopardy within the meaning of the Constitution and the Court cited Trono.

With respect to the questioning of — of sentence, of — of imposition of sentence by a trial judge, this Court wrote in Bozza against the United States in 330 U.S. that the Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.

The Government submits here that that reasoning applies and that the wrong move by the judge, the instruction that the jury at the first trial could return a verdict of second degree murder should not confer an immunity upon the — the petitioner.

Felix Frankfurter:

Or that — or that here, not taking an appeal, that resulted would have taken place.

Leonard B. Sand:

Yes, Your Honor because the — the Government could not appeal.

But he — but he did — but he did take an appeal and the error which was corrected is an error which operated to the prejudice of the first trial of both the Government and the defendant.

That the error in instructing the jury that they could return a verdict of second degree murder was that it — it permitted a compromised verdict.

Felix Frankfurter:

If you had to give a theory or it’s your position having rejected it’s waiver could mean unreal way of looking at it.

He wants to get out of investigating that as the — as the defendant here.

And what you say, these are questions of law — of law to determine as the asked question is arbitrary, isn’t that right?

But what is the theory here that although if he had stood — stood his ground have taken the verdict that the judge’s words be final.

When he doesn’t stand his ground and wants to get a review but then all of it is opened up as implied that you’re taking Justice Holmes’ opinion on the (Inaudible) case, or is this a special case?

Leonard B. Sand:

This — this is indeed a special case.

Felix Frankfurter:

What?

Leonard B. Sand:

Justice Holmes’ view of course, would — would lead to an infirmancy because this is not a —

Felix Frankfurter:

But I wouldn’t be able to reach — I want to know what your — what your analysis for the — when you say for a special case purpose.

What — what’s the legal — what’s the third on which you string your — or affirms or whatever they are?

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Leonard B. Sand:

The — the only theory upon which double jeopardy can be invoked by the petitioner is to read the first verdict as an implied acquittal of first degree murder.

I suggest that because of the peculiar facts here that that cannot be done, the conviction of murder, the finding of all the essential elements of first degree murder.

Felix Frankfurter:

He was in jeopardy just as soon as that jury entered the — was — was sworn to.

Leonard B. Sand:

And —

Felix Frankfurter:

And became a jury, wasn’t it?

At that moment, jeopardy — he received the jeopardy of the Court?

Leonard B. Sand:

And the consequence of the reversal of that conviction is to wipe the entire slate clean.

Felix Frankfurter:

All right.

Leonard B. Sand:

The — the other result leads to this fallacious reasoning.

If you limit the second trial to second degree murder, you then say, because of the presumption of innocence, there is no valid finding that the defendant killed the victim but there is a finding that if he killed the victim, he did so in the absence of circumstances which make it first degree murder.

Felix Frankfurter:

Well, what is special about this?

You have to generalize this and say that if in fact the verdict appealed from does not imply the — is not in fact or by — by reasonable implication an acquittal for the larger offense for which he is convicted at the second trial that he has not been in jeopardy for the second trial.

Leonard B. Sand:

I have to say that, Mr. Justice Frankfurter, to make this an a fortiorari case from Trono.

But in Trono, there was an explicit finding by the Court the first instance of acquittal for the greater offense and that — that is made much of by the dissenting justices in that case that there, there was an explicit acquittal.

Here, I — I submit to the Court, there is not even an implied acquittal because of — of the peculiar facts in this case.

Felix Frankfurter:

That’s because Trono went on a theory of waiver that he’d be — that once he asked relief, correction of what had been done below, he can say, “I’ll stop short only — I’ll stop short at any point where it might bite me more.”

That’s the — that’s the theory of Justice Peckham’s opinion, isn’t it?

Leonard B. Sand:

Not entirely.

Because Justice Peckham also said, quoting from page 27 of the Government’s brief, “That the judgment is one entire thing and it brings up the whole record for review.”

He then said he thereby waives the benefit of the provision in question.

But putting to one side the theory of waiver.

If we say that when one reverses a conviction, he does not remove only so much of that error as prejudiced him but he removes all of the error both that that which operated to his benefit and that which operated to his detriment, then conviction for the greater included offense is — is permissible.

Felix Frankfurter:

What do you say to the fact that if he wants to part from the view that an appeal by a defendant necessarily violates the literalness of double jeopardy provision.

It does, doesn’t it?

Leonard B. Sand:

Literally, it doesn’t.

As Your Honors have observed, Mr. Justice Story for —

Felix Frankfurter:

Therefore — well, I think if — if you — if you don’t stick in the back of Justice Story’s view, then isn’t it necessarily not a question of — of this nicety for the determination of the considerations of — of whatever you call it, public policies or blank words, the consideration by which you — by which this Court should, so far as the United — the federal courts are concerned without a decent, fair, essentially something that appeals to whatever you may call justice, once through, gives way.

Leonard B. Sand:

I — I think that’s correct, Mr. Justice Frankfurter and I suggest that the Court has already worked out such a rule in the Trono case.

Where it — it was held and the clear language of the opinion which followed the Kepner opinion in this respect was that its holding was, as if the case arose in the federal court in the United States, the provision being identical with the — with the Fifth Amendment —

Felix Frankfurter:

I don’t —

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Leonard B. Sand:

— provision.

Felix Frankfurter:

— I don’t think you can read Trono opinion and Justice Holmes special relation to it in view of what happened in Kepner and say this is a special doctrine applicable to the Philippines.

Leonard B. Sand:

You — you cannot —

Felix Frankfurter:

Although (Voice Overlap) —

Leonard B. Sand:

— read Trono that way.

Felix Frankfurter:

I can —

Leonard B. Sand:

Yes, probably.

Felix Frankfurter:

— although I think as the Board is quite right in — in trying to restrict it to what was peculiar for the Philippine Judiciary.

Leonard B. Sand:

To —

Felix Frankfurter:

(Voice Overlap) —

Leonard B. Sand:

Mr. Justice Frankfurter I can only say, of course the Government agrees.

Hugo L. Black:

Did I understand you to say that this violate the — violates the literal language of the Double Jeopardy Clause?

Leonard B. Sand:

If one does not say that —

Hugo L. Black:

Yes.

Leonard B. Sand:

— the appeal and the reversal of the conviction is a — is a waiver, then literally, the defendant is — is twice in jeopardy for that offense.

But — but nobody contends that a defendant cannot appeal and nobody heretofore has contended that the effect of a reversal of a conviction is to preclude a — a retrial.

Felix Frankfurter:

I didn’t mean to force on your certainly — certainly, not on you, suggestion that that this constitutes a violation.

Leonard B. Sand:

I — I —

Felix Frankfurter:

I thought he was whether in fact once you grant appeal in a criminal case, you do not make a breach into the double jeopardy provision.

Leonard B. Sand:

You do, and the question is how far that breaches to go.

Felix Frankfurter:

That’s right, I knew that.

Leonard B. Sand:

And whether it is to be possible for a defendant to urge that because his conduct was a greater crime from that for which he was convicted, he may not be tried at all for that crime.

I — as — as I have said the error in this case operated both to the prejudice of the Government and the defendant and that the Government here only asks that that — that a new trial be permitted which is free from that error.

In this respect, the language of Mr. Justice Cardozo in the Palko case is — is relevant although of course the Palko case was a state case and dealt with the Fourteenth Amendment and due process.

But Mr. Justice Cardozo wrote in that case, “The State is not attempting to wear the accused out by a multitude of cases with accumulated trials.

It asks no more than this that the case against him go on until there shall be a trial free from the corrosion of substantial legal error.”

And Mr. Justice Cardozo then wrote, “This is not cruelty at all nor even vexation in any immoderate degree.”

And this is —

Hugo L. Black:

But did he get that relevance in connection with the ground in federal court?

Leonard B. Sand:

I — I think — I think that the holding in Palko does not.

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Leonard B. Sand:

I think that —

Hugo L. Black:

Do you think that language has?

Do you think if we are to consider the amendments and the provisions to safeguard people that has — have an expressed meaning in the Constitution by deluding him according to our idea of what’s just and right in these federal cases?

Well, that will — may be the rule now in reference to state cases?

Leonard B. Sand:

I think that is — is entirely just and — and not barred by the double jeopardy provision of the Fifth Amendment to say that where a conviction is reversed because a specific error was committed at that trial, that there may be a retrial where that error is corrected.

That is all —

Hugo L. Black:

But why was that too much?

You thought we could measure the meaning of — of the amendment if we — you put it well what it meant by what you’ve just read there from —

Leonard B. Sand:

No, I — I was not —

Hugo L. Black:

(Voice Overlap) —

Leonard B. Sand:

— I did not mean to suggest by my reference to Palko that this was a question of anything other than double jeopardy under the Fifth Amendment.

I — I thought that that language, although it — it was in a different context was relevant here.

Because all that the Government is seeking is that the new trial be a trial where the specific error committed at the first trial was corrected.

Felix Frankfurter:

Mr. Sand, if we’re going to construe the Constitution in double jeopardy, did you collect any historical materials as to what the construction was of double jeopardy when the Fifth Amendment was adopted?

There couldn’t be much like in England in this kind of a situation because there’s no appeal.

There’ll only be a new trial.

I mean a subsequent different trial to question of the consequences of an appeal by a — just as a convicted person wouldn’t arrive, wouldn’t have originated in England, will do anything in the colony to ask of something with the State that 70 — 76 or it was on the Constitution.

Are there any materials?

Leonard B. Sand:

The Government has not collected any in this case.

Felix Frankfurter:

So, you’re if going to construe the authority of historic content, we — we better find out what it was.

Leonard B. Sand:

I have began the historical approach with — with the Kepner and the Trono decisions and Ex Parte Lange and have not gone beyond that.

Felix Frankfurter:

1905, did you recognize the — the historical approach to what it was in 1793 and —

Leonard B. Sand:

Of course Mr. Justice Holmes, in — in the Trono — in the Kepner decision does state that the origin of the double jeopardy provision was to prevent subsequent —

Felix Frankfurter:

A new trial.

Leonard B. Sand:

— new trials.

Felix Frankfurter:

An independent second trial.

That’s all you can say about it historically.

Leonard B. Sand:

I — I believe that’s correct.

I’d like now to turn to the question of the unappealed arson conviction.

Where there is an unappealed conviction for a lesser included offense, it is clear that that conviction will bar a subsequent prosecution for the greater offense.

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Leonard B. Sand:

And the reason for this is that at the trial, the second trial for the greater offense, the jury may find the defendant guilty of the lesser offense.

Therefore, he is twice in jeopardy for that lesser included offense.

For this reasoning to be applicable here, one would have to find that on the count for murder, the jury could have returned a verdict of guilty of arson.

This would be a matter of — in the first instance of District of Columbia law, and in Wheeler against the United States —

William J. Brennan, Jr.:

(Inaudible)

Say that over again Mr. Sand, do you say initially that for example, had there been this conviction on the arson count first and then subsequently a trial of the murder count.

Leonard B. Sand:

Yes.

William J. Brennan, Jr.:

That then the murder count could not have been tried?

Leonard B. Sand:

If in fact arson were a lesser included offense in the — in the crime of murder.

William J. Brennan, Jr.:

Well isn’t it?

Leonard B. Sand:

No.

William J. Brennan, Jr.:

Under this indictment?

Leonard B. Sand:

It is not, Your Honor.

It — it is not because the purpose of the allegation of the commission of felony in the indictment is to supply the element of — of intent, of premeditation.

Originally, there was but one crime of — of murder.

When the crime was broken down into degrees, it was held that a murder, a killing committed during the commission of the felony would be first degree murder because the intent to commit the felony supplied the necessary malice and premeditation for the first degree of murder offense.

It is — the Court of Appeals from the District of Columbia has held that under a — an indictment in the common law form which alleges a killing with malice and premeditation, it is possible to prove a killing during the perpetration of a felony.

The only purpose of the allegation of — of felony is to supply the mental intent but it has never been thought that — that the mental intent in and of itself was a — a separately — was a separate offense, was a necessarily included crime.

William J. Brennan, Jr.:

Well, but — I gather the proofs upon this second trial largely was a proof to the arson, weren’t’ they?

Leonard B. Sand:

That is correct and in —

William J. Brennan, Jr.:

So, didn’t this conviction rest upon the Government’s assertion which this death followed in the perpetration of an arson?

Leonard B. Sand:

It was necessary for the Government in proving in crime of first degree murder to prove that the defendant (Voice Overlap) —

William J. Brennan, Jr.:

Well, why should — the Government has been allowed to prove an arson as the basis upon which and without which they could not have secured in the — on the proofs they offered, a conviction of first degree murder under this indictment.

Why should they have been allowed to prove an arson of which already the defendant stood convicted?

Leonard B. Sand:

Because the federal law is clear as — as a result of — of numerous decisions by this Court.

That in determining questions of double jeopardy, one does not look to the particular facts of the case but rather looks to the elements of the crime.

And where the elements of the crime are different or be it in — in the particular case, they result from one act of the defendant.

It is not a violation of double jeopardy to — to convict the defendant for those two separate appeals.

William J. Brennan, Jr.:

Well, would that follow, suppose if he had been acquitted of the — on the arson count?

Leonard B. Sand:

If he had been acquitted of the arson count, then — then under the (Inaudible) case, it would be res judicata that he was not guilty of arson and so an acquittal on the arson count would have precluded a trial for murder under the —

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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William J. Brennan, Jr.:

Well in double jeopardy terms, does it matter whether the result is acquittal or reverse or a conviction?

Leonard B. Sand:

Well, the — the (Inaudible) case does not turn on double jeopardy terms, perhaps for that very reason but — but turns on — on the doctrine of res judicata.

In those jurisdictions such as —

William J. Brennan, Jr.:

Now, what — then that related to res judicata.

Does it make a bit of difference on — on the doctrine of res judicata whether a result is acquittal or a conviction?

Leonard B. Sand:

It — it is — it is not and in those jurisdictions such as New Jersey which followed the single transaction rule at State v.Cooper relied upon by petitioner is such a case where a prior conviction —

William J. Brennan, Jr.:

And a lot later once in 1833 in New Jersey.

Leonard B. Sand:

But — but that the facts there were close to this.

It — it would follow that if both crimes result from the same act of the defendant, then double jeopardy would preclude —

William J. Brennan, Jr.:

Well now — now that doesn’t answer the question I asked in res judicata terms, does it make any difference —

Leonard B. Sand:

Well —

William J. Brennan, Jr.:

— whether the result has been an acquittal or conviction?

Leonard B. Sand:

Well, it would — it would make — would make no difference.

And if there had been an acquittal of — of the lesser included offense, there could not be a retrial for the —

William J. Brennan, Jr.:

Well —

Leonard B. Sand:

— by a greater sense.

William J. Brennan, Jr.:

Well again, I asked you in res judicata terms, what difference does it make if the result of the first trial was a — an acquittal rather than a conviction —

Leonard B. Sand:

Well, it — it’s —

William J. Brennan, Jr.:

— in either event, does in res judicata?

Leonard B. Sand:

In — in our — in either event, it is —

William J. Brennan, Jr.:

Well then, why — why isn’t that the answer to this case then?

Leonard B. Sand:

Well, if res judicata terms, the — the defendant — it has been found that the defendant committed the arson.

William J. Brennan, Jr.:

That is my point.

That issue has been determined.

Leonard B. Sand:

Yes.

But — and if the law in the federal courts were that where there is an element in common in two offenses or where in fact both crimes are committed by the defendant, by performing one act, then the position of the Government in this case could not be sustained.

But in — in a holstered cases some of which is cited on — on page 48 of the Government’s brief.

That that rule has been explicitly rejected and it has been held that where the elements of the offense are different regardless of whether they were the same in a particular case.

If trial and conviction for both offenses is not there (Voice Overlap) —

William J. Brennan, Jr.:

Well, what’s the different element?

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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William J. Brennan, Jr.:

The only different element is that death followed from this arson, didn’t it?

Leonard B. Sand:

Well, the — the gist of the crime of — of a murder in the first degree of — of homicide is the killing.

The only lesser included offenses are other degrees of killing.

In fact for the felony murder doctrine to apply, the felony must be a — a felony unrelated to the killing.

If — if the felony is an integral part of the killing then the felony murder doctrine is — is inapplicable.

Arson is a crime against property.

Murder is — is a crime against the person.

One does not look under the federal rule to what transpired in this particular case.

One looks to the offenses, and if the elements of the offense are — the elements of the offenses are different then conviction for both crime is permissible.

Felix Frankfurter:

You’re saying that under the federal rule, the same physical occurrence, same exertion of a man’s fist may encompass two offenses, the very same transaction.

Leonard B. Sand:

That this Court —

Felix Frankfurter:

And conviction for one doesn’t bar conviction for the other, is that right?

Leonard B. Sand:

This Court has so held on — on many occasions.

And specifically, with respect to whether a jury could return a verdict of guilty of arson for the — under the second count of the indictment in Wheeler against the United States.

The Court of Appeals from the District of Columbia said that “Where the felony murder was — one of robbery that the jury could not under the — under the murder indictment return a verdict of guilty of —

Felix Frankfurter:

You can knock down a post — a postman — in the post office building —

William J. Brennan, Jr.:

That’s different from that.

Felix Frankfurter:

— and prosecute him from this, that the jury may acquit and then you may prosecute him for interfering with the mails.

Leonard B. Sand:

This is — this —

Felix Frankfurter:

That’s a classic case —

Leonard B. Sand:

That it — yes.

Felix Frankfurter:

— from the federal court.

Leonard B. Sand:

The (Inaudible) case, the — the facts was very close to that.

William J. Brennan, Jr.:

Now, Mr. Sand, what you’ve been telling me when you say under the federal law, do you mean under the under the federal law or under district law?

Leonard B. Sand:

No.I mean under the law as — as stated by — by this Court.

William J. Brennan, Jr.:

Well —

Leonard B. Sand:

And —

William J. Brennan, Jr.:

Generally, entirely apart from any (Inaudible) of district statutes of our —

Leonard B. Sand:

Yes, Your Honor.

The cases are cited on page 48 of the reference —

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Felix Frankfurter:

I was speaking of knocking the postman down in the New York Post Office.

Leonard B. Sand:

I would like to turn now to the McNabb point and call to the Court’s attention one very significant fact which has not previously been called to the Court’s attention.

And that is that the defendant testified in this case and on the witness stand, acknowledged the truth of almost all of the statements concerning which there was testimony with respect to extra judicial admissions.

Petitioner has relied on — on two specific examples as being very prejudicial to the — to his case, one was the denial of the — by petitioner that he had written a very incriminating letter.

The petitioner testified at the trial that he had made that denial.

The other was — was with respect to whether the petitioner had previously told the investigators that the deceased was discovered by him to have died a natural death before the fire occurred.

This testimony too was repeated by the defendant — at — at the trial.

He acknowledged that — that this was true.

That portion of the defendant’s testimony is not reprinted in the printed transcript but it appears at pages 547 and 548 of the transcript of the entire trial which — which is on file before the Court.

With respect to the — the McNabb point, it’s — the objection at the trial court was not that the questioning occurred too late after two longer detentions but rather that it occurred too soon.

On many occasions during the voir dire and throughout the trial, counsel for the petitioner waived any objection to testimony with respect to the 28th of May which was the third day of — of his hospitalization.

And indeed, all of that — all of the substantial allegations on the 28th were repeated by the defendant at the trial and acknowledged by him.

And so, the objection focused on the extra judicial statements made by the petitioner immediately after the fire.

In this connection, it is important to know that at the time of the first questioning at 8:30 on May 26, the petitioner was not under arrest.

The earliest stage at which it may be said that he was under police custody was subsequent to that because it was at the conclusion of that questioning that the call was made by the policeman to the precinct asking that — that a policeman be — be sent to, I think, look after this gentleman, was the language in the record.

And in fact, that policeman had not arrived until after the — the second questioning.

So, one does not have illegal detention nor any type of detention at the time of the first questioning.

And — and all subsequent times, petitioners testimony was consistent with the statements which he made during that first question.

In — indeed he — that was his story even at the trial.

It was a story to the effect that somehow, an unidentified man got into this house which was locked and barred.

This occurred by coincidence on the day following which he was served with a notice that he would be evicted from that — that house.

And that this unidentified person stabbed him, set the fire — fires, opened the gas pipe, stabbed him and — and left, a story which wasn’t credible.

Earl Warren:

Why wasn’t he arraigned before?

Leonard B. Sand:

There, petitioner has conceded that — that there is no evidence that he was physically able to be arraigned at any prior occasion that if prior to the occasion when he was arraigned.He was released on the 28th because he was at that time well enough to be released.

Earl Warren:

Too sick to be arraigned but not too sick to be questioned by police?

Leonard B. Sand:

The — the testimony with respect to the — to the questioning on the 26th at 3 p.m. is that the inspector asked the nurse whether it would be all right to talk to petitioner and was told that it would be.

Also that he asked —

Earl Warren:

You mean to question him —

Leonard B. Sand:

To question him.

Earl Warren:

— about the murder?

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Leonard B. Sand:

To question him about — about —

Earl Warren:

Or to talked to him.

Which did — which did he answer?

Leonard B. Sand:

I don’t recall whether the exact —

Earl Warren:

(Voice Overlap) there’s a lot of difference if you will admit, won’t you?

A lot of person says, “Well, may I speak to the sick man?”

That’s one thing, “But may I question him about his possible participation in the murder —

Leonard B. Sand:

The — the —

Earl Warren:

— about some happenings.

Leonard B. Sand:

I — I suggest to the Court that there is not any difference whereas here, the questioner at the outset identified himself as being a — a Government official interested in the investigation of — of the cause of the fire.

In — in that context, I submit that there is not that — that significant difference.

This Court —

Hugo L. Black:

Have you considered the admissibility of that evidence in the light of Graham against the United States?

Leonard B. Sand:

Yes, Your Honor.

Hugo L. Black:

What do you think about that?

Leonard B. Sand:

Well, I — I think that — that it applies here because you have — regardless of the validity of — of previous statements made by the extra judicial statements.

You have here an acknowledgement by the defendant on the witness stand that — that these facts did take place, that he did say what — what he had said on — on the previous occasion.

There — there is no confession here.

The — the statements were —

Hugo L. Black:

But there wasn’t much confession in Graham, was it?

That’s the — his statements were exculpatory to me.As I recall from my just looking at the beginning.

Leonard B. Sand:

Yes.

But — as — as here, the — the reason for the introduction of — of these exculpatory statements because of the — the incriminating nature of — of some of the admissions that are — that are contained —

Hugo L. Black:

Well, they were conflicting, wasn’t it?

Of course they were conflicting — he conflict — he conflicted with himself.

Leonard B. Sand:

Yes.

Hugo L. Black:

Is that right?

Leonard B. Sand:

Yes, sir.

But — here, the defendant stated at the trial that what he had told the investigators was true and he — and he reiterated that testimony in — in all the — the substantial respects at the trial.

Hugo L. Black:

So, your answer then is that he voluntarily repeated the statement on the stand, was that before the evidence has been offered against him or after it?

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Leonard B. Sand:

That was after the evidence was — was offered against him.

Hugo L. Black:

Well, that wouldn’t — that wouldn’t quite answer it, wouldn’t it?

If it comes down to the Graham rule, how a statement made shortly afterwards to a man and officers while he was incarcerated —

Leonard B. Sand:

It —

Hugo L. Black:

— although it was not strictly a full confession.

Maybe Graham is no longer good law but I rather call it superb.

Leonard B. Sand:

There are — there are two significant factors, I — I think here and — and perhaps in some respects, this case is — is closer to the — to the Mitchell case than to any other.

Because here, you have immediately, after the — the offense, at a time when there is no custody at all.

You have a statement given by the defendant.

The only possible objection that can be made to that is that it was so soon after the occurrence of the — of the fire that it was unreliable.

This was a fact question which was submitted to the jury and there were no objection (Voice Overlap) —

William J. Brennan, Jr.:

Mr. Sand, you say it was not in custody?

Leonard B. Sand:

At the occasion of the — of the — the first question, he had been taken to a private hospital because he was in need of — of hospitalization.

William J. Brennan, Jr.:

Well, I’m reading Page 49.

Leonard B. Sand:

Of — of the record?

William J. Brennan, Jr.:

When you got there.

Tell us about the room that is, a dozen or may be 14 beds in it.

It’s a large room.

It has bars across it — across it.

It is locked.

Leonard B. Sand:

This has —

William J. Brennan, Jr.:

The officer, to get the key and lock the door and allow him to go in.

Leonard B. Sand:

This has reference, Mr. Justice Brennan, to the third question — questioning on that day after he had been transferred from the pride of hospital, which is emergency hospital to the strong room of the D.C. General Hospital.

At the time of that questioning, there is no doubt he was in police custody.

But, of course, there is nothing in the evidence to suggest this petitioner has, that he would not — that a — an attorney would not have been permitted to — to enter the —

William J. Brennan, Jr.:

Was he told he had the right to get one?

Leonard B. Sand:

He was not, Your Honor.

Earl Warren:

Was he under arrest?

Leonard B. Sand:

He had been — at the conclusion of the first questioning —

Earl Warren:

At the time he went to the hospital, that private hospital, was he under arrest?

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Leonard B. Sand:

No — no, Mr. Chief Justice.

Earl Warren:

Who took them there?

Leonard B. Sand:

He was taken by the rescue squad which answered the fire.

There was at that time no knowledge that — that the fires had been self-started.

They — they entered the — the burning building after breaking down the locked doors and windows and they found the petitioner there.

They took him out to the lawn, they administered oxygen and took him immediately to the hospital, to the private hospital.

A — the first investigator arrived at the scene, had no knowledge of — of the cause of the fire and went and spoke to the petitioner because he was told that he was the only one who had any knowledge as to the fire.

He was the only who was in the building.

This is the first — this is the first questioning on 8:30 of — of May 26th.

There — there was no questioning on the 27th of May.

And so, it is very misleading to say that after two and half days of questioning because there was questioning on — on just these two days.

Earl Warren:

How long was he in the private hospital?

Leonard B. Sand:

He was in the private hospital from 8:30 on — on — on May 26 until 2:10 p.m.

Earl Warren:

That same day.

Leonard B. Sand:

Of that same day.

At 2:10 p.m. he was transferred to the — to the D.C. General Hospital.

There was a second questioning which followed an hour and a half after the first questioning.

In — and again, the petitioner told the same basic story that he had been attacked by this man and who — who set the fire, separate fires that were found in the building and — and denied that — that — denied that — that — well — well, his — his story was limited to that.

It’s an exculpatory story sought to play (Inaudible) on this — this unidentified person.

Hugo L. Black:

He was lying, you — you don’t know just — makes it into the last thing we missed now, do you, even if it was exculpatory, the Government used it.

And in the Graham case, the Court said that several indictments — just want to — having an offer to his confession as being admissible only because of that fact, the considerations and measure of proof which resulted from it does not arrive in determining admissibility.

And he says, it was a direct declaration but the State used to procure conviction, not for the State to say the declaration did not prejudice of course for the case.

I don’t see where the fact if it’s exculpatory —

Leonard B. Sand:

The — the Government doesn’t —

Hugo L. Black:

— for fixing a problem.

Leonard B. Sand:

— does — does not rely on — on the exculpatory nature of the — of the statement.

It relies rather on the fact that the — the story told by the petitioner was first told at a time when he was not in any formal custody.

And under the Mitchell case, such a — a confession, if it be a confession is admissible because a subsequent illegal detention does not render the first confession.

Hugo L. Black:

So that’s why you’re talking merely about detention.

You’re talking here about whether or not this volunteer was in the idea of the Fifth Amendment, that’s what Graham is.

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Leonard B. Sand:

Yes, but that there is a — if the only question is as to the voluntary nature of — of this — of the statements made by the — by the petitioner apart from many question that’s mentioned then the — the record is — is clear that the permission of the petitioner was asked with respect to the — to the questioning which is most seriously questioned, the 3 p.m. questioning.

The — the investage — the invest — the investigator asked the policeman whether it would be all right with the petitioner if — if he could talk to him and the petitioner said that it was okay to — to use the term —

Felix Frankfurter:

Your meaning —

Leonard B. Sand:

— determine.

Felix Frankfurter:

— in those argument as I followed it was an invocation of McNabb.

Namely, that the postponed, the delay arraignment led to a question which — merely because of the delayed arraign — delayed arraignment and failure to tell the defendant, that’s the petitioner, failure to advice him of his rights constituted the kind of misbehavior under McNabb which — which rendered whatever evidence he gave inadmissible.

As I understood it that was Mr. Blow’s case, is that right?

Leonard B. Sand:

That — that is Mr. Blow’s case at — at this level.

At — at the trial level —

Felix Frankfurter:

But I don’t care what —

Leonard B. Sand:

— it was an entirely different area —

Felix Frankfurter:

Yes.

Well, I — I wasn’t at the trial —

Leonard B. Sand:

— contention, yes.

Felix Frankfurter:

I wasn’t at the trial, what I heard him say here.

Now, you say this is Mitchell.

Mitchell was a dire member.

You correct, me I haven’t read it for ages, but sometimes.

Mitchell was an immediate, almost spontaneous disclosure by an arrested person and thereafter, he was detained.

Thereafter, he was not arraigned for, I think, a whole week because the argument was made, the old, I think, Taylor’s case, the journeyman’s case, whatever it was, trespass ab initio, isn’t it?

Leonard B. Sand:

Ab initio.

Felix Frankfurter:

Nice, recognized arguments, we said no.

In as much as the disclosure wasn’t a proof of the delayed arraignment, it didn’t vitiate the disclosure.

Now, what — you’ve got to get down to time, how promptly after arrest, after not arrest, whatever it was.

Leonard B. Sand:

It — it was so promptly, Your Honor, that it was before arrest and before there was even suspicion.

Who was immediately after the fire, the petitioner was taken to this hospital.

The — the investigator who — who spoke to him arrived at the scene of the fire, was told that a person had been taken from that building and taken to the hospital.

He had no knowledge that the fire was — was a self-started fire.

He went and he spoke to petitioner.

Petitioner said that he had been attacked by this unidentified man and who — who stabbed him and who started the fires.

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Earl Warren:

Assume that — that first conversation is not tainted.

How about the others after he was locked up?

Leonard B. Sand:

The — the — there are two other statements.

One is a denial that he wrote a letter which was sent to the — the night before in which was — was highly incriminated and he denied at the first questioning that he wrote that letter.

At the questioning on the first day, he denied that he wrote that letter.

On the third day, there being no question on the second day, when the letter — when the letter was found and shown to him, he acknowledged that — that he wrote the letter.

At the trial, he agreed that that was his letter.

He — he admitted that that was true and he also testified at the trial that he had denied to the investigators.

Earl Warren:

You mean on his own testimony?

Leonard B. Sand:

On his — this was on cross examination of the defendant at the trial.

He did — he admitted that he had previously denied to the investigators that he had written the letter.

And — and so, there is no — there — there is nothing which — which is the fruit of a subsequent illegal detention if — if there was such a detention, and — and the Government submits that there was not.

There was no evidence that this man was not arraigned at the earliest time when it was physically possible to arraign him.

And so, that it — under — under the Mitchell case, the — the testimony was not prejudicial to the — to the defendant.

There was not —

Earl Warren:

Did the Government try to — the Government tried to arraign him earlier than it did?

Leonard B. Sand:

The Government did not try to arraign him.

Earl Warren:

How do you know that’s the earliest time he could have been arraigned then?

Leonard B. Sand:

Well, the testimony — there was no testimony that — to the contrary.

And the testimony is that he was released at the — on the morning of May 28 because he was at that time well enough.

The — the contention of the — of the petitioner was that he was not — not being well enough then to — to go with this.

The Government took a car in his inquest.

There is not here under any reading of the record, a detention for the purposes of questioning.

The detention here, if — if it may properly be called a detention was because the petitioner needed — needed hospitalization.

If the purpose of the McNabb rule is to avoid illegal detention, that — that reasoning does not apply here because this is not a — a situation created by enforcement agents for the purposes of — of its active confessions from the — from the petitioner.

Earl Warren:

Mr. Sand, there’s one more question in the case that seems to me is worthy of discussion.

Are you going to reach that?

Leonard B. Sand:

I — I suppose that Your Honor has reference to the summation of the — of the trial?

Earl Warren:

Yes, I do.

Leonard B. Sand:

The significant point to be made there is that the comments of the attorney, the Government attorney, were in response to arguments which had been made, which had been advanced to the jury in the summation of the defense.

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Earl Warren:

Will you point out to us what — what those remarks were, please?

Leonard B. Sand:

Yes, Your Honor.

They appear at — at page 62.

Earl Warren:

62.

Leonard B. Sand:

Those are —

Earl Warren:

It isn’t very long, will you read it?

The —

Leonard B. Sand:

The —

Earl Warren:

— the part that — that provoked this act — this talk on the part of the district attorney.

Leonard B. Sand:

The —

Earl Warren:

Page 62, is it?

Leonard B. Sand:

Page 62 of the Government’s brief.

Earl Warren:

Oh, the Government’s brief, I thought it was the record of his.

Leonard B. Sand:

On page 62 of the — of the — the Government’s brief it act — it begins at the bottom of page 61.

Defense counsel in summation said that the finding of the jury of fact was final and it — that nobody “can hold you to their opinion on questions of facts.”

Which of course is — is inaccurate statement.

But then he went on to say, “Is he guilty of first degree murder as charged, and then he goes to the electric chair and nothing will stop it, it is mandatory.”

And then he proceeded and said putting himself in the position of the hypothetical (Inaudible).

“Before I can send him to the electric chair” and there’s this repetition at several points in the summation of the defense counsel which created the impression that it was the function of the jury to impose sentence and that a — the imposition of capital punishment was inevitable, not merely mandatory but inevitable.

Earl Warren:

Now, where does that appear in the record?

I — there are some deletions —

Leonard B. Sand:

Well —

Earl Warren:

— there and I thought I saw it in the record where it wasn’t very long.

Leonard B. Sand:

Well, if — if Your Honor please.

There is printed in the transcript —

Earl Warren:

Yes.

Leonard B. Sand:

— only a potion of the summation of the defense counsel.

The entire summation appears in the full transcript of the record which is on file in the Court.

And the Government has reprinted it at page 62 of the brief.

The portions of that summation which the Government submits provoked the comment of the — the Assistant United States Attorney and — and which must be read in context with the summation of defense counsel.

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Earl Warren:

All right.

Now, what — what did the prosecutor have said?

Leonard B. Sand:

The — the prosecutor then — well, at — in the first instance, he objected during the summation of the defense counsel to the impression which was being created that it was the jury which imposed sentence.

And as we have noted previously, this was not the type of statute where the jury was called upon to make any recommendation with respect to sentence.

The — the Assistant United States Attorney called the jury’s attention to the fact that their — reading from the — towards the bottom of page 63 of the Government’s brief that their — your duty as representatives and members of this community is to sit here, listen to the facts, take the law that is honorable give you which governs this case.

And then in accordance with the facts and with the law, to reach a fair and impartial verdict based on the evidence and law and on nothing else.

Issue was taken by the petitioner, where this —

Earl Warren:

Well, that isn’t the language I’m referring to.

I’m referring to this language that the district attorney said, “Now, if you should find this defendant guilty, the responsibility as to the consequences of your verdict falls to someone else.

It is not you, you don’t have to come down here at some time later or even today or tomorrow whenever you bring your verdict back and say “Well, now you go to the electric — electric chair.”

That is not, Your honor — your function.

That is his Honor’s function and it doesn’t end there.

There is the United States Court of Appeals.

They have a responsibility to sift the facts and look them over and decide whether this man will go to the electric chair.

There is the Supreme Court of the United States.

If they see fit, they can look these facts over and decide if this man goes to the electric — to the electric chair.

There is the President of the United States who may look these facts over.

And as you will know, often these sentences are commuted to something less than death in the electric chair.

There is the Attorney General of the United States, who may make recommendations to the President of the United States relative to the Senates.

Now, I mention that ladies and gentlemen because I want to emphasize to you that it is the responsibility of those people, the Judge, the Court of Appeals, the Supreme Court, if they should decide to hear the case.

The President of the United States, if it should come to his attention.

It is the responsibility of those people to decide whether this man goes to the electric chair.

It is not yours, ladies and gentlemen.

I want to emphasize that because I consider it important that your function be defined by me to you.”

Now, is that — is that a correct statement for — for a district attorney to make?

Leonard B. Sand:

Where that statement to have been made by the district attorney in the abstract, it — it would be an improper statement.

Earl Warren:

Well then, will you — will you show me in this record what language we can rely on in saying that the defense counsel provoked that and thus, made it the judgment?

Leonard B. Sand:

The language that we rely on is the language by which the defense counsel sought to create — in — in which he sought to create the impression that the sentencing function was the jury’s function.

Earl Warren:

What is —

Leonard B. Sand:

That the jury sent the petitioner to the electric chair.

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Earl Warren:

What were the words he used and where are they to be found?

Leonard B. Sand:

They are — the — they are to be found at — in printed form in the Government’s brief at page 62.

Earl Warren:

Page 62.

Now, will you quote the language that you say justifies that argument on the part of the district attorney?

Leonard B. Sand:

Well, he said for example at page 602 —

Earl Warren:

Well, not just for example.

Let’s take what — what is important in it that — that provoked this.

Leonard B. Sand:

Well, beginning then at — at the bottom of page 61.

Earl Warren:

61.

Leonard B. Sand:

Said, “No one can hold you to their opinion of questions of fact for you are the sole judges of facts.”

Earl Warren:

Is there any —

Leonard B. Sand:

Then —

Earl Warren:

— trouble about there?

Leonard B. Sand:

Your — Your Honor, the Government’s position is that all this language must be read in the context of the entire summation and that the highlights of which has — are set forth here.

Earl Warren:

Well, is there anything wrong with that statement?

Isn’t that perfectly legitimate argument?

Leonard B. Sand:

If it is, Mr. Chief Justice — but what follows and which is predicated on that, is not.

Earl Warren:

All right.

Leonard B. Sand:

He — he said further, “Each of you will know” —

Earl Warren:

No — no.

Not — lets — let’s take your own brief.

Leonard B. Sand:

Yes.

Earl Warren:

He followed that up with saying, “No one on the face of the earth —

Leonard B. Sand:

Can challenge —

Earl Warren:

— can challenge your individual decision on what you consider the facts to be.”

Is there anything wrong with that?

Leonard B. Sand:

Well, there — there are postures of the case of course, where an appellate court would say that — that the — that the jury could not have reached that verdict, that — that there was an insufficiency of the evidence.

But the — the impression of inevitability which this language created was followed —

Earl Warren:

Well, then —

Leonard B. Sand:

— by his statement.

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Leonard B. Sand:

“Each of you will vote on that direct issue.”

Earl Warren:

Meaning the — the question of his — his —

Leonard B. Sand:

Guilt or innocent.

Earl Warren:

— guilt or innocent, yes.

Leonard B. Sand:

“Is he guilty of first degree murder as charged?

And then he goes to the electric chair and nothing will stop it.

It is mandatory.”

Earl Warren:

That is true, isn’t it?

Leonard B. Sand:

There is a mandatory death penalty for a violation of this statute —

Earl Warren:

Is there anything wrong with that —

Leonard B. Sand:

(Voice Overlap) —

Earl Warren:

— that argument when a man is defending another one for his life?

Leonard B. Sand:

Not — not at this point, Your Honor.

Earl Warren:

All right.

I just want to — I just want to see where we get to the bad language.

Leonard B. Sand:

That the — the portion which the Government principally relies are the following passages.

Where he said, “If after my discussion of that and come to the factual opinion that this man should not go to the electric chair.”

Earl Warren:

Yes.

Leonard B. Sand:

He said, “Before I,” And I here refers to — to the jury before a juror.

Earl Warren:

Yes.

Leonard B. Sand:

“Before I can send him to the electric chair.”

Earl Warren:

Yes.

Leonard B. Sand:

“I have to say to myself, I have no reasonable doubt about what caused the death of this lovely lady.”

Earl Warren:

Is there anything wrong with that as a matter of argument?

Leonard B. Sand:

The jury does not send the defendant to the electric chair.

The — the imposition of sentence is a consequence of the jury’s determination of the facts under the law submitted to them by — by the Court.

Imposition of sentence is not jury function particularly under the statute such as this one where there is no jury discretion with respect to — to the sentence.

Then he continued further, “Even though you are morally certain that he set all the fires, you still under your law must not — must say not guilty and not send him to that chair.

Yes, under your solemn and sacred oath shall I, as a juror, send that kind of human being to the electric chair.”

Earl Warren:

Yes.

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Earl Warren:

But now there are deletions all the way through there which — which indicate that — that that is not in context, that — that there something else that that argument refers to.

Leonard B. Sand:

Well, the — the full — the full transcript is — is now before me, Your Honor.

I —

Earl Warren:

Well, the —

Leonard B. Sand:

The passage begins at — at page 600.

If the — the Court desire that that I read the full —

Earl Warren:

Well, if there’s any —

Leonard B. Sand:

— passage —

Earl Warren:

— if there’s any damaging material in there to the — to the defendant, I would like to hear it —

Leonard B. Sand:

Well —

Earl Warren:

— because I — I think that unless his conduct in the part of the district attorney is — is justified by some — some very extraneous argument by the defendant, it would seem to me that it was — was most improper.

Most improper to indicate that — that the responsibility is on the President of the United States to determine whether the man is going to be executed or not.

The — the argument on his part that the Attorney General can largely determine whether he is going to be executed or not after a jury has — has convicted it.

The argument that the Court of Appeals and this Court are to judge the facts in order — before this man can go to the — go to his death is not fair argument.

It isn’t the fact because the jury is the only — the only agent to say — that can judge the facts.

Leonard B. Sand:

I — I agree, Mr. Chief Justice.

That if this argument had been one initially advanced by the Government, it would be highly improper.

There are cited at — at page 65 of the Government’s brief several cases in which the Courts have said that an argument made in rebuttal which standing alone would be improper, is not improper.

Earl Warren:

Yes.

Leonard B. Sand:

Where it is made in rebuttal and whereas here, there is no objection taken.

Felix Frankfurter:

Did the trial court say anything about dissenters, in his charge to the jury?

Leonard B. Sand:

In his charge to the jury, he informed the jury that — that the — there was a death sentence.

And of course, at the voir dire of the jury was informed if — if there was a death sentence.

Felix Frankfurter:

But, Mr. Sand, do you — do you concede that uness we can find, just provocation for this argument that I have read in the part of the district attorney that it is misconduct and it would warrant a new trial.

Leonard B. Sand:

I cannot so concede, Mr. Chief Justice, because one must read the entire record and the — the entire charge, and to turn them then, whether in view of all of the evidence, this was such a prejudicial error that — that a reversal is — is warranted.

And after reading this — this record I cannot — cannot so state to the Court.

Tom C. Clark:

Was any objection — any objection taken?

Leonard B. Sand:

There was no objection taken.

Tom C. Clark:

May I ask the Court to instruct the jury on this?

Leonard B. Sand:

There was — there was no such request.

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Leonard B. Sand:

There is as this Court noted in — in the (Inaudible) case.

It — it is possible to — to abstract from the cold record an incident which actually in — at the time of trial played a very small role in — in the jury’s determination.

I — I suggest to the Court that the reason why no objection was taken is because in the context that — of this case, there was no substantial prejudice to the defendant by the remarks of the prosecution.

The — the summation of the defense counsel created in the jury’s mind the erroneous impression that the sentencing function was their function, that they, the defendants, came back and — and sent the petitioner to the electric chair.

Earl Warren:

Did you point that out in your brief?

Leonard B. Sand:

Well —

Earl Warren:

Because you haven’t read any language to us yet that — that would show that.

Leonard B. Sand:

Well, it is — it is this language that — that I send him to the electric chair.

I the juror, send him to the electric chair, which — which means I imposed the death sentence on this defendant.

It — it is — it is Congress which has decreed that one found guilty of this crime should be subject to the mandatory.

(Inaudible)

Leonard B. Sand:

Yes, that they — they — the transcript references appear in the — in the Government’s brief and — and there, at — at pages 602 to 605.

With reference — with reference to excerpts about suggesting the full conviction (Inaudible)

Leonard B. Sand:

I would think that one would really have to read the — the entire summation of the — of the defendant counsel.

Felix Frankfurter:

All of it, was it?

Leonard B. Sand:

It — it was not — but the —

Felix Frankfurter:

I don’t mean to —

Leonard B. Sand:

Would not be —

Felix Frankfurter:

I don’t mean to imply.

If it’s long, I won’t read it.

I just want to know how long (Voice Overlap) —

Leonard B. Sand:

It — it would not — it would not —

Felix Frankfurter:

How long did — how long did he speak?

Do we know?

Leonard B. Sand:

I know that he requested that he be given unlimited time, I don’t know actually how long it — but the particular, pages 600 to 605 of the — of the transcript which are the pages from which these excerpts were taken.

Harold Burton:

The defendant (Inaudible)

Leonard B. Sand:

I could if — if the Court will give me access to the — to the only record which exists, which the — which the Government — the Government has no record of the transcript.

There is a copy which is the copy now before me —

Earl Warren:

You may —

Leonard B. Sand:

— of the —

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Earl Warren:

You may see of course.

Leonard B. Sand:

And — and if I may take it then, I will transfer it as — as such, thank you.

George Blow:

Your Honor, If I may.

I would like to make a very short comment on —

Earl Warren:

Yes, you may.

George Blow:

— on the common law and our question of waiver.

We divested the laws and the positions taken by the Court’s, 48 States in this country.

When they were faced with this waiver problem of jeopardy and we concluded that the common law courts found that there would be no way presumed in an appeal beyond that of free trial on the degree of offense for which the man was previously convicted, that we said is the common law rule.

We submit that the Court is bound by the common law rule since — as it has frequently said, the Constitution can only be understood and interpreted in light of the common law rule and the condition existing at the time the framers of the Constitution wrote the Fifth Amendment.

Felix Frankfurter:

Well, I don’t understand unless I’m more wrong in knowing what’s persuasive common-law.

This situation couldn’t have arisen (Inaudible)

George Blow:

Your Honor —

Felix Frankfurter:

— in what — in what — could it have originated in England except by question reserved?

George Blow:

They could have arisen — we — we understand by — by legislative grace.

There were occasionally appeals in England because Blackstone saw fit to comment that a man convicted on one count and acquitted as to two on a retrial could not be convicted of the one of which he had been acquitted.

In other words, he couldn’t be retried on that account.

Now, Blackstone said — and Blackstone had sold more copies in America than he sold in — in England.

Felix Frankfurter:

All right.

Then come to this country as we got cases into 13 States, found about 1793 on which — in which cases in which this problem has arisen.

George Blow:

I think —

Felix Frankfurter:

Is there any question that Justice Holmes’ right, this was merely the double jeopardy, directed itself to a new independent trial of a prior conviction for an acquittal.

Isn’t he right about that?

George Blow:

I — I’m not sure I understand the question.

Felix Frankfurter:

Justice Holmes said that double jeopardy prohibited a man from being tried after he was convicted or after he was convicted for the same thing again for the same offense, not the same conduct, isn’t that correct?

Isn’t that all the history tell us, so if you got, suprisingly have any?

George Blow:

We have, we have — we have —

Felix Frankfurter:

Have we got any history.

We haven’t got any history of a conviction on a indictment partly for one thing and another thing and an appeal on part of what you place below in a reversal and a new trial.

Have we got any historical period at all?

George Blow:

From the standpoint of early history of —

Audio Transcription for Oral Reargument – October 16, 1957 (Part 1) in Green v. United States

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Felix Frankfurter:

Contemporary issue —

George Blow:

— contemporary with the adoption of the Fifth Amendment?

Felix Frankfurter:

Yes.

George Blow:

Not — Your Honor, we have — we have the views of the courts that thereafter took a look at the Fifth Amendment.

But the —

Felix Frankfurter:

The what?

George Blow:

— the Court —

Felix Frankfurter:

I didn’t understand that.

George Blow:

We — we have the views of the common law courts in the —

Felix Frankfurter:

You mean District Courts?

George Blow:

— in America, state courts.

That took a look at the common law rule which said no second jeopardy —

Felix Frankfurter:

Well, all —

George Blow:

— and said we have this — this reasonable waiver —

Felix Frankfurter:

Let me ask you this.

George Blow:

— which will imply.

Felix Frankfurter:

Many of these courts that took a look.

Can they — do they refer to any reports contemporaneous with 1793 to which I can go upstairs in the Library of Congress and read it for myself.

Have you found any such?

George Blow:

We have Baxter on the general question.

Felix Frankfurter:

But that is so tied up with a totally different system of criminal proceeding.

George Blow:

Yes, and —

Felix Frankfurter:

That from my point of view, it sheds no light at all.

Earl Warren:

Mr. Blow, I — before you sit down.

I — I see from the record that you and Mr. Rublee and Mr. Ford, your associates, are — are serving through appointment of the courts below, that you have served in the District Court and the Court of Appeals and in this Court, this impecunious defendant.

I want to say to you the — and the Court considers that in doing so, you — you are rendering a public service which we appreciate very much.

And now, I say to you Mr. Sand, of course, that that will not detract him slightly in the very important service that you render in — in serving your Government as you do to this important case.