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

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Audio Transcription for Oral Reargument – October 16, 1957 (Part 2) in Green v. United States
Audio Transcription for Oral Argument – April 25, 1957 in Green v. United States

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

Earl Warren:

Number 46, Everett D. Green versus United States of America.

Mr. Blow.

George Blow:

May it please the Court, this case is here upon writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.

It began over four years ago when a fire was discovered at the petitioner’s residence on Massachusetts Avenue.

Now it was May 26, 1953.

Upon their arrival at the burning house, the fireman found two people present in the house.

One was the petitioner who was found evidently unconscious, lying in the basement bathtub of his house and the other was the deceased Ms. Bettie Brown, who was pronounced dead on being taken out of the house.

The petitioner was taken out of the house, was administered oxygen, was taken to emergency hospital and was there laid upon an examining table.

That was approximately 9 a.m. on the morning of May 26, 1953.

Now between that period and 10 o’clock on the morning of May 28, the defendant was questioned intermittently by two officers of the homicide squad of the Metropolitan Police Department and by the inspector of the Fire Department in-charge of the investigating causes of arson.

And since this house was locked and all windows secured when the firemen arrived, and since there were evidently five or six separate fires, the evidence or the information of any officer investigating this fire was that arson had been committed.

At any rate, on May 28th at approximately 10 — 11 o’clock in the morning, the defendant was taken before the Deputy Coroner and advised in accordance with Rule 5(b) of the Federal Rules of Criminal Procedure that he had a right not to make a statement, that any statement he used might be used against him, that he had a right to counsel.

Soon after this, the Grand Jury met and returned an indictment against the petitioner in two counts.

Now the first — this indictment is on pages two and three of the record and it’s vitally important, because the first count read, “on or about May 26, 1953 within the District of Columbia, Everett D. Green maliciously did burn and cause to be burnt a building known as 1115 Massachusetts Avenue North West property of Gerald Green” and the second count incorporated that language, and it read, “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 or caused to be burnt a certain building known as 1115 Massachusetts Avenue North West, property of Gerald Green; and in perpetration of the offense of arson aforesaid caused Bettie Brown to inhale certain gas, 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, the second count charged him with two offenses, one the same arson and two the offense of arson killing as defined in Section 2401 of the District Code which provides, whoever being of sound memory or discretion without purpose so to do, kills another in perpetrating or in attempting to perpetrate any arson, as defined in Section 401 of this code is guilty of murder in the first degree.

Now the petitioner was tried upon this two count indictment and the jury was instructed on the law of arson and they were instructed that if they found in the perpetration of this arson the deceased died through the inhalation of certain gases produced by fumes, they were to return a verdict of first degree murder under the District of Columbia Code.

The judge, on his own motion, instructed the jury on second degree murder.

Now the jury retired and they came back and they found, “we find the defendant Everett D. Green guilty of arson, we find the defendant guilty of second degree murder on the second count.”

The arson stand, it was never appealed and the sentence one the arson now has been served.

But he did appeal his conviction of second degree murder and in his appeal he urged that there was no evidence in the record of his trial that would sustain a conviction of second degree murder and he urged that the giving of that instruction permitted the government, permitted the jury rather to resolve any doubt that they may have had as to the cause of the death of the deceased in the favor of the United States.

And the Court of Appeals in reversing said one, the giving of the second degree murder instruction where there is no evidence to warrant it, is technically erroneous; two it was prejudicial because here and I quote, “Here had the erroneous instruction under which he was convicted not been given, Green might have been found not guilty under the second count.”

The case was remanded to the District Court and once it became evident that the government was going to proceed the second time, under first degree murder charge, the defendant interposed a plea a former jeopardy.

That plea being overruled he was tried the second time and convicted this time of first degree murder as originally charged.

Now, we contend that the government was not privileged to prove a second time what it had been unable to prove before the first jury and to support this contention we have briefed four arguments, two of these are constitutional.

The first proceeds from the fact that the petitioner was in undoubted jeopardy of his life on the offense of first degree arson and murder at his first trial, and this argument concerned the extent of the waiver of the defense of former jeopardy that is going to be presumed to attach to the exercise of an appeal.

Felix Frankfurter:

Mr. Blow may I ask you just this question just as practical matter that from your point of view the Court of Appeals having found the charge of error, it could then have directed a dismissal of the indictment, is that right?

George Blow:

That is correct Your Honor.

Felix Frankfurter:

Because on your point of view (Inaudible), he couldn’t possibly have been convicted again for second degree and trial under first degree was foreclosed the only alternative rightly was for them to direct a dismissal of indictment?

George Blow:

That is correct Your Honor.

I understand that —

Felix Frankfurter:

I don’t draw an inference from it, I just don’t know.

George Blow:

Yeah, the law is a little unsettled whether or not the government would be permitted to come back and say we have evidence now of second degree murder and try him again for second, we don’t know about that.

Felix Frankfurter:

Yes, the government could say we got some evidence – it would be hard to say on the state of this record.

George Blow:

Well Your Honor —

Felix Frankfurter:

Never mind.

Charles E. Whittaker:

Was that possibility foreclosed by the Court of Appeals decision?

George Blow:

Which possibility Your Honor?

Charles E. Whittaker:

Possibility that the government might on the retrial have sufficient evidence to support the lesser included offense of second degree murder?

George Blow:

I don’t believe that would have been Your Honor.

Possible yes and no, but we have not investigated that, because that again would be a question which we would determine in the trial court, before the trial justice by a motion.

I think the Court of Appeals might have either directed an acquittal being satisfied that there was no evidence whatsoever of second degree, or it might have said, we’ll send it back and let the court, the trial court determine whether or not there is evidence of (Inaudible).

Our second jeopardy argument Your Honor speaking of what in this case is the necessarily lesser included offense in that indictment which we’ve just read, proceeds on the assumption or on the evident response to this — to reading this indictment, that incorporated in the second count is the lesser, necessarily lesser included event of arson.

Charles E. Whittaker:

But sir does it make it any difference to your position, that whether the — a second degree murder charge was embraced within the indictment or not?

George Blow:

No, Your Honor, it does in the sense that we think we have a stronger case by virtue of the fact that second degree was not in our opinion a lesser included offence in this indictment, because we are in the position of a totally unrelated event.

We’re not even covered by the indictment as the government admits.

The government admits that second degree would not be covered by the indictment in this case.

Felix Frankfurter:

And you think that’s a stronger case, do you?

George Blow:

Yes Your Honor definitely.

Felix Frankfurter:

I’m not knowing it, I’m just (Inaudible)

George Blow:

Because it puts the man — say the man was convicted of arson and adultery and he said I’m not guilty of adultery whatever else, and he — and what I would I do, I would go to him and say you’re taking your chance on your life by appealing this offense.

Charles E. Whittaker:

But in any event he was under this indictment charged with first degree murder and he was not convicted of first degree murder, that’s your position.

George Blow:

That is correct Your Honor.

Charles E. Whittaker:

And you follow that by saying that necessary instance is or the necessary legal result is to acquit him of first degree murder.

George Blow:

Yes Your Honor, and that was the result which the — as pointed in — by dissenting justices in Trono represented the overwhelming ways of American decided opinions, court opinions certainly up to — certainly through the 19th Century and even today represent the overwhelming court opinion.

Felix Frankfurter:

I don’t think that is correct Mr. Blow.

George Blow:

Your Honor?

Felix Frankfurter:

I believe that is not a correct statement.

George Blow:

Well, Your Honor with —

Felix Frankfurter:

I’m not saying that the lower courts shouldn’t indicate that, I’m saying, that that is not a correct statement of the results of an investigation of (Inaudible)

George Blow:

Your Honor we have investigated them in our appendix A.

Felix Frankfurter:

Every state?

George Blow:

Every state in the union, and we found six we couldn’t find Your Honor, that we found —

Felix Frankfurter:

I think it might count now 19 the other way, 16 your way and 13 had no (Inaudible)

George Blow:

Well Your Honor in our appendix, on appendix A, we have set them out in tables those courts which found the result, absent any statute or constitutional amendment, and 13 are in our table, which have never departed from what we call the limited waiver doctrine, that is the doctrine that in permitting a new trial out of the constitutional prohibition against second jeopardy or the waiver if there was to be one, would be presumed to extend no further than the need of the present, that in construing your constitutional right, you don’t construe it any further than its benefit to the defendant, you don’t (Inaudible)

Charles E. Whittaker:

(Inaudible)

George Blow:

Sir?

Charles E. Whittaker:

That is you don’t construe the waiver (Inaudible)

George Blow:

No.

Well we have 13 Your Honor at page 45 of our brief that have never departed from this limited waiver doctrine.

We have five that have adhered to the limited waiver doctrine even though the statute in this day tried to change it and we have five which followed it prior to the enactment of some statute, prior to some constitutional amendment.

Now Kring versus Missouri is an example of that.

There was — the state followed the limited waiver rule up to 1880 or slightly before when by constitutional amendment they made a new trial, one, a completely new proceeding, they maybe effect of a new trial, a complete washing out of the earlier trial, including the washing out of the earlier implied acquittal and this Court in Kring versus Missouri said all right Missouri you can do that, and you can do that by attorney — because you are now covered by the Fifth Amendment, you can do that even by a statute, as well as a constitutional amendment, that it’s a matter of substance, you can’t do it retroactively.

You can’t do it for someone who was tried for an offense committed during the time when the limited waiver rule was in effect.

Felix Frankfurter:

Mr. Blow I don’t want to lead you to use time on this subject.

I simply state myself, I do not think this question could be determined by deciding — by counting the number of states one way or the other, I’m not suggesting they could be relevant, I’m suggesting that if there is anything to be decided by that and if your figures are what you say and the (Inaudible) my statement, then all I can say is that it wouldn’t be the first time two different lawyers read the same material (Inaudible)

George Blow:

Your Honor we come back to these cases in connection with a third argument which —

Felix Frankfurter:

And I want to ask one more thing which Justice Whittaker asked you, and you answered yes, that a necessary inference or he said the necessary legal consequence and I suggest those are two very different things.

Inference means what may rationally follow from some case, a legal consequence need not depend on that.

We may have a legal consequence without it being a necessary factual inference.

George Blow:

Well Your Honor we are going to discuss in connection and mention these cases again perhaps in connection with our third argument which we briefed in our supplemental brief.

Felix Frankfurter:

And I didn’t mean to shut you off, I wasn’t arguing, that all I meant to say, I didn’t want to look – (Inaudible) anything I have said to lead you to make a use of your time that you otherwise wouldn’t have made.

George Blow:

I see Your Honor.

Well, we have our third point which we are going to discuss and that relates to the principles of collateral estoppel as set forth in recent decisions of this Court.

It leaves aside constitutional concerns.

We are going to make the argument that the government was barred from — by collateral estoppel, from attempting a second time to prove what they couldn’t prove the first time, and finally we are going to talk about jurisdiction.

We are going to say that when the Court was granted appellate power over criminal cases, then at that time we look to the state of the law in the common law of court, and that time it was 1889.

And was then — of course these arguments all rejected we come to question of whether or not if there was to be a second trial, it was a fair trial and in that connection we mentioned statements admitted, statements that the police and fire department inspectors in the case admitted which we think are properly excludable under the McNabb Rule and we call to this Court’s attention, certain remarks which were made by the prosecutor in rebuttal.

Now turning to the first point, we have to mention and this is in connection with our effort to find some sort of intent on the part of the framers of the Constitution.

We have to say that at the time of the Constitution, new trials so far as our research discloses were not granted in England in capital cases and probably not in felony cases generally.

So — and this explains the decision in United States versus Gibert, as many years as 36 or more, after the Constitution that there could be no new trial because such a new trial would place a man twice in jeopardy and the Constitution said he couldn’t be placed twice in jeopardy.

George Blow:

In England as we understand it, the prisoners’ remedy was to call the error of the lack of evidence to the attention of the crown and in this sometimes he would evidently be carefully insisted by the Trial Court, but there is no question of a new trial if he was right then that was the end of it.

We said or the Court said in the Gibert case that there couldn’t be a new trial at all, but in the Federal Courts, we have no appellate procedures in these criminal cases.

And we had no real understanding perhaps of what problems would be involved if the new trial were granted and yet the defendant had been convicted at the first trial of an offense lesser in degree than that with which he was charged in the indictment.

And we say in that connection that is where we looked to our states Your Honor and we look to the states for an interpretation of the Constitution or the — the common law prohibition against second jeopardy because they had some sort of appellate procedure and they have this problem.

And they said we are going to expand the constitutional right, but we are not, we are not going to leave it in its contracted form, we are going to expand it for the benefit of the person.

But we are not going to go so far as to say that an appeal will waive what the protection that the guy had by virtue of his not having been found guilty of the higher charge on the first time around.

In other words, we are not going to make a man barter, or gamble when he appeals or when he decides to appeal.

We, in our brief, have distinguished the rule that obtained or could obtain in Territorial Courts.

And we have distinguished, we have attempted to distinguish the rule that obtained and was applied by this Court in Trono versus the United States where we had a system of law that developed not from the common law, but from the Spanish law where there was no trial by jury and where as Trono was — he was tried by magistrate, a trial magistrate without a jury.

The case was appealed in accordance with procedures established by Congress to the Supreme Court of the (Inaudible) and his conviction was reversed.

Without remanding the case at all, a new determination of facts was made by the appellate court, a new offense was found to have been committed and a new sentence was imposed.

Well this is an entirely foreign procedure to us.

And one of the justices, Justice Brown who concurred in the opinion of this Court of Mr. Justice Peckham in affirming those convictions said, one year earlier in Kepner he made it clear and he wasn’t going to trust a trial magistrate in the Philippines with a final power of acquitting a defendant charged with a serious offence such as murder.

And he said, again, it’s logical I think to assume that he conferred in Trono for the same reason.

He felt this was a proper procedure and the contracts and the history of Philippine law of territorial, of a territorial court established by act of Congress, the government of Philippine.

But given the logic of Trono in the Philippines, you have four dissenters.

And those dissenters found as did the majority, as did the four in the majority, there were four in them all found some sort of acquittal, inherent in the finding of the lower offense.

Now they have admitted as all eight of them proceeding on the assumption that the question was one of waiver of a right, in that case a legislative right that it was regarded as the constitutional right.

The court below, the Court of Appeals in this case has approached the entire case from a standpoint of waiver.

Perhaps with the exception of Mr. Justice, of Judge Prettyman you could say safely that that eight of the Court of Appeals below were attacking this present case on the ground of waiver.

And we have applied here by the majority of the Court of Appeals a presumptive absolute waiver.

The man has been presumed to have surrendered the protection of the Constitution in exchange for the exercise of a statutory right through appeal what he regarded as an unjust verdict.

Now we have our question of the lesser included offense.

We take a look at Rule 31(c).

We say that a man maybe convicted of any offense lesser than necessarily included in that charge.

We take a look at this indictment and we take a look at ours and we see that count one is reproduced word for word in count two and that count two adds on a one element to the events described, the consequent there — that that’s consequent upon the offense.

Now this Court, the government in its brief, the court below, everyone recognized that the test that has been applied consistently by this Court is that in Murray versus Commonwealth which – wherein it was stated if each statute requires proof of a fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment of the guilt.

But of course here only one did, you can’t say the count one required anything more than count two, it was a lesser included offense in the count two.

The trouble with this whole thing was pointed out in the Trial Court where the judge handed the indictment of the jury and said you will disregard count one, charged in count two.

Now supposing — supposing you now approach this case in the point of view of waiver, that you approach it from a standpoint that Mr. Justice Holmes’ dissent (Inaudible) how clear the basis of (Inaudible)?

George Blow:

Well you — Mr. Justice Holmes we believe concurred in Trono because he felt that jeopardy was one long piece of strength from the very moment the case started until very moment that the sentence was executed or those defendants put on the street.

He was not sympathetic to waiver.

He said it was wrong to assume that any man would consciously waive something like a fundamental constitutional right.

Well we say that Justice Holmes was tackling this problem in a way that would permit a new trial continually no matter who was prejudiced.

The object being to get a trial free from error, it made no difference we understand from Justice Holmes’ position of waiver whether it was the government was hurt or the prisoner, if one was hurt there should be a new trial.

Now our answer to Justice Holmes’ argument has to be that that is not the law that the government is not permitted an appeal —

You recognize that is the law that he said – that Congress won’t change the law (Inaudible)?

George Blow:

Well he did say that Congress could — he did suggest that Congress might be able to change the law and I suppose that’s been suggested even in Palko versus Connecticut that no one has ever been quite sure whether Congress could or not.

Felix Frankfurter:

Mr. Blow if you are going to examine individual statements of the justices in Kepner and Trono rather than it takes to defeat them in Trono what the Court had cited and I suggest to you that Mr. Justice White and Mr. Justice McKenna dissented in Trono because the Court didn’t far enough.

George Blow:

That is correct Your Honor.

Felix Frankfurter:

So they dissented in Kepner, on the ground that double jeopardy doesn’t prevent you from — doesn’t prevent even the government from appeal.

They went on in continuous proceeding stream.

I don’t see where we get if you were going to be off the ground because he dissented unfairly —

George Blow:

We take him out because he was a swing man —

Felix Frankfurter:

But why did McKenna — I know he was a swing man but why did McKenna dissented, it may fairly be said because the Court didn’t go far enough and I do not see how you can possibly say that these decisions rested on any question of Spanish law, when in the whole of the opinion there isn’t a reference of Spanish law and a complete (Inaudible) and the Court said, we must decide this case and I believe rightly, if anyone knows the whole issue that is front of these governments rightly, follow the instructions as to — instruction, they have been giving instructions did embrace statutory the bill of rights intended to be operated in the bill of rights for the Philippine, and that’s what the Court said in Trono, didn’t it?

George Blow:

Yes except that it didn’t come to the point of saying that a man could be tried for — could not tried for a capital offense without a jury.

Felix Frankfurter:

Well that’s —

George Blow:

We have that question too, yes.

Felix Frankfurter:

So that question is decided in other case.

That was Doe, the other Philippine case.

I am suggesting that Trono and Kepner cannot possible be explained on the grounds that they were deciding according to the Spanish law instead of deciding as a fit they were deciding the provision of double jeopardy in the American, our Constitution.

They said in explicit terms, isn’t it?

George Blow:

Well they did Your Honor.

The four justices did and five justices didn’t and the other four were little bit afraid by the expression in the majority opinion that that this was law that was going to be applied in the Federal Courts.

Felix Frankfurter:

But I am suggesting to you and I urge it, why McKenna dissented because they said if you are not going to allow this to the government, they dissented in turn, didn’t they in Kepner on the ground that the construction which the majority placed rounded by themselves but White and McKenna joined Holmes in dissenting because in Kepner the majority gave what they thought a true restrictive meaning of the constitutional provision.

Hugo L. Black:

Have you in your investigation found any challenge in this Court other than that for the whole Kepner holding, has this Court emphasized on the way it decided —

George Blow:

That the government has no appeal.

Hugo L. Black:

If the government could appeal (Inaudible) and do you know of any such case this Court has ever dealt.

George Blow:

No, no Your Honor.

Felix Frankfurter:

Has the case — question come up ever?

George Blow:

That the government should try to appeal —

Felix Frankfurter:

The question that’s just been put to you, ever come up except in Trono?

George Blow:

The question whether a government would be permitted —

Felix Frankfurter:

But you answered the question and I am asking you whether the question to which you said no, it’s never come up, never been decided, I’m then asking you has that question ever come up?

George Blow:

Well that I don’t know, Your Honor.

Felix Frankfurter:

All right and you can’t say no to the answer.

George Blow:

Well it came up in Kepner in Philippine connection and it came up again in the Palko versus Connecticut connection where Connecticut does allow an appeal by the government for error in trial.

Hugo L. Black:

Under the Fourteenth Amendment.

George Blow:

That was a Fourteenth Amendment case and at first they decided that.

Hugo L. Black:

What was the Kepner case where Mr. Justice Holmes wanted that the government could be and that it hasn’t–

George Blow:

Well justice, Mr. Justice Holmes quoted, he said by rationale he said, we should follow the well reasoned decisions of the Connecticut Supreme Court in the State versus Lee that he was lonely in saying that, because State versus Lee was the — was one of the earliest Connecticut cases approving the right of the government to appeal.

Felix Frankfurter:

I think I may ask – I also apologize if I misunderstood the question.

Justice Black question was has this Court ever decided whether the government may appeal, (Inaudible) if that was (Inaudible) whether this Court has ever decided may the government in a criminal case appeal an adverse ruling and I suggest your answer should be yes, the government have decided that, this Court have decided that and has decided it very clearly that the government cannot appeal and nobody has ever questioned that, you were to get (Inaudible) in 144 US —

George Blow:

Yes.

Leaving aside for a very quick moment, the constitutional concern, we refer to the rule which this Court had occasion to examine in Yates versus United States that and I quote, “a party may be precluded under the doctrine of collateral estoppel from attempting a second time to prove a fact that he sought unsuccessfully to prove in a prior action.”

Now this Court has agreed that the non-existence of a fact as well as its existence can constitute — can be established by a judgment and in the instant case it must be kept in mind throughout that the government had a clear crack at the defendants the first time before 12 competent jurors and it didn’t succeed in proving the (Inaudible).

And I think it’s fair to say from that that the first verdict which was silent on the subject of arson killing required as a determination of mixed fact and law, those magic words, essential to be the decision, the finding that death had not been caused in the manner alleged.

Now that is true even — at the same time you can say that the conviction of second degree meant by looking at the jury’s reaction is one properly interpreting its instruction as a specific finding that he committed that he killed her in some other way, but we don’t press that as hard as we do the silence of the jury of the fact that the government couldn’t prove its case once and did the second time.

Now the government had a little better case the second time.

They found the doctor who examined the deceased and they found the chemist who looked at the blood and they prepared their testimony and together brought up all the ammunition on the second time round it was quite good enough with this convict — the defendant —

Felix Frankfurter:

I follow your legal argument with interest and anxiety because it is (Inaudible), difficult question, but I suggest that you begin to speculate what juries imply or do not imply or what they do or don’t do, you one up again a fixed rule of this Court that no matter how contradictory finding is, verdicts are on different times, this Court will pay no attention to that unlike the English court.

This Court has said again and again that we don’t care how contradictory, how irrationally conflicting verdicts maybe (Inaudible) different times because nobody can pursue the mind of a jury and know why they did, what they did.

George Blow:

That is correct Your Honor, and we subscribe wholeheartedly to that.

Now finally so far as propriety of a second trial is concerned we look to the statute which granted jurisdiction to this Court to review capital cases and we see that that statute was passed in 1889.

That statute provided that a case might be remanded under the direction from this Court but in looking at the statute and interpreting a jurisdictional statute, we have to look to the state of the law at the time we have.

And we may differ but we think that, that reference to the cases in our opinion will show that the state of the law at the time certainly the State Court law, followed the limited waiver and would not require the gamble, the desperate chance which the Court of Appeals said here was in inherent in the exercise of the statutory right to appeal.

And we think that after that statute of 1889 there was no further authority given to this Court, indeed absent any congressional intent, we look to the uniform code of military justice, we find out that Green if he has been in the military service couldn’t have been retried for first degree, couldn’t have been sentenced to death, and we see that, that was passed in 1950.

It certainly is other than a congressional approval of a jurisdictional power to remand for retrial on an offence greater than that embodied in the conviction appeal.

Very quickly we want to review our alternative argument that if a new trial was proper, this one wasn’t fair.

We note in our brief on page 31 the assertions which were testified to by government witnesses, which we felt very damaging, the rights of the accused.

George Blow:

The government contends that there were some of these that were not confirmed that denied by the prisoner at his trial.

We cite, in addition we cite particularly the fact that the defendant told Sergeant Future that he had written a letter advertising suicide just before they smelt smoke.

We note that the defendant said he mailed that letter at 12:30 at night.

We note that Judge Bazelon dissenting in the Court below pointed out that if the jury believed that the defendant has said what Sergeant Future said he said, it’s whole story became incredible and ridiculous.

We note these remarks about blowing up the house, on May 28th before (Inaudible).

We note in our introduction to this McNabb section of our brief, the fact that officers and the fire inspector testified that he had left the top floor had gone directly to the basement.

We note that the defendant testified and had to testify that he stopped on the first floor, made a telephone call, it was unsuccessful, he notified people (Inaudible).

We have throughout this record as shown by the assertion from page 31 of our brief, tremendous prejudice.

The conclusion is innocent, but that the government knew what the defendant was going to say and had to say at his second trial, set the testimony of the officers and the inspectors out to make Green look like a liar before it ever (Inaudible), maybe that’s what they did.

Now this Court, at that time, of course the Timeless case was tried.

You have a 5(a) McNabb Rule.

It’s been suggested and it’s suggested very clearly in this Court’s decision in Mallory that there is such a thing as 5(b) McNabb Rule we call it that because we recognize the purpose after all of a 5(a) McNabb Rule is to get a man judicial caution or some sort of caution before he puts his head in the noose.

Here he put his head in the noose before he was committed two-and-a-half days after he was under surveillance, under custody of the police department.

This result, I believe was contemplated by this — this problem I believe was in the Court’s mind, has been in this Court’s mind.

The purpose of Rule 5 is twofold.

There must be probable cause determined.

The defendant must be advised of his rights.

The government admits that there was opportunity for the extortion of confession here.

They say the police didn’t create it.

We say that’s irrelevant.

At least they can do as Judge Bazelon below suggested as the British invariably do is once they put him into custody, advised him of his right to silence, of his right to counsel, of the fact that the statements he made would be used against him.

Finally we have remarks which we urge as prejudicially unfair to the defendant at the conclusion of his trial.

The government urges these remarks were provoked by — are mentioned on — are limited in part pages from a transcript of 35 of the final items, that these remarks of the government were provoked, by our mention of the electric chair.

I don’t — I’m not experienced in criminal law, but it appears to us that any counsel for a man under a capital charge would be delinquent in his duty to the client if he did not mention the consequence of a verdict and that certainly when the Court instructed the jury that the penalty for the crime is death, and impressed on jurors on voir dire as shown by the supplemental briefs to a member of the jury, that the consequence of their verdict would be death.

Your Honor we would like to save a few minutes for rebuttal.

Earl Warren:

You may.

Mr. Sand.

Leonard B. Sand:

Mr. Chief Justice may it please the Court.

No federal court has ever accepted the limited waiver doctrine which petitioner now urges.

On the contrary that doctrine has been specifically rejected by the federal courts as early as 1846 in United States against Harding, a decision by Mr. Justice Grier then sitting in the Circuit Court and which he indicated that upon retrial after conviction for the lesser included offence, a defendant could be retried for the greater offence.

Leonard B. Sand:

With respect to the early history of the Fifth Amendment, I have cited in the government’s supplemental briefs, when first proposed the Fifth Amendment read, “no person shall be subject to more than one punishment or one trial for the same offence.”

Objection was made to that in the debates in Congress on the grounds that, that would preclude a defendant from securing a reversal of his conviction and a retrial, and of course we know that subsequently when the Fifth Amendment was enacted that provision was omitted.

The early history of the double jeopardy provisions in the United States are summarized in an article in Eleven (Inaudible) Law Review by Judge Bigelow, the reference is contained in the government’s supplemental brief.

It is of course clear that a defendant may after a second trial receive a sentence greater than that initially imposed at his first trial.

Thus every defendant who receives less than the maximum sentence at his first trial runs the risk of ultimately receiving a greater sentenced if he succeeds in having his first conviction reversed.

I check that because I believe in essence that is all that is involved in this aspect of this case.

The government submits that this case is controlled by Trono, but it is for many reasons an a fortiori case, after Trono and I suggest now that the case is very analogous to Stroud against United States in 251 US.

There the defendant was tried three times for murder in the first degree.

The first time he was found guilty and the death sentence was imposed.

This conviction was reversed.

Upon his second trial the jury finding him guilty recommended that capital punishment be dispensed with, which was permissible under that statute, and the defendant received a sentence of life imprisonment.

This conviction was reversed and upon the third trial he was found guilty of murder in the first degree, the jury making no recommendation dispensing the capital punishment.

He was there upon sentenced to death.

This Court found that there was no violation of Fifth Amendment in the subsequent imposition of the death sentence and wrote that the only thing that the appellate court could do when he secured the reversal was to remand the case for a new trial and that in such cases the defendant was not placed in second jeopardy, within the meaning of the Constitution, the Court citing Trono.

I would like to state if I may the reasons why the government feels that this case follows a fortiori from the Trono decision.

First the basis for the reversal of the conviction of second degree murder was petitioners’ assertion that if he were guilty of any crime it was murder in the first degree.

Because this was petitioners theory accepted by the Court of Appeals it was apparent that the only crime for which he could be retried was the crime of first degree murder.

Under these, under these facts in the theory of the reversal there could be trial for no other crime.

Indeed the Court of Appeals specifically remanded the case for retrial.

And while petitioner had on the first appeal asked the Court of Appeals for a reversal of his conviction, he had not asked for a dismissal of the indictment or a judgment of acquittal or any other relief.

The remand to the District Court for retrial offers to be made what was the natural consequence of the theory which petitioner had urged upon the Court of Appeals.

First it was impossible to retry the defendant for any crime other than first degree murder.

If as Trono holds even where it is possible to retry a defendant for a lesser included offense, it is permissible to retry him for the greater offense.

Surely here when retrial could only be for first degree murder such retrial is possible.

Were this is not so, the consequence of the error committed by the trial judge at the first trial would be to confer upon the defendant an absolute immunity from retrial for the crime of murder.

This Court wrote in the (Inaudible) case that the Constitution does not require that sentencing should be again and which a wrong move by the judge means immunity for the prisoner and that case and that language of the court we think applies here.

Felix Frankfurter:

Well that maybe a good argument that’s undesirable but that is not logic outcome, the denial of that isn’t a logical compulsion, that if he has been tried, that if he has been tried and the jury brings in the verdict and that verdict has a fatal error and therefore calls for reversal or nullification of that verdict to a sentence under it, but that’s an end of the matter, that means it maybe an undesirable result but it isn’t necessarily in conflict with reason, because that’s the state of today’s English law as you well know.

Leonard B. Sand:

But we feel that the government — it is not only an undesirable result but is a result which in no way compelled by the decisions of this Court.

Felix Frankfurter:

I agree to that, other way around it isn’t compelled — the contrary is also not compelled by reason.

Leonard B. Sand:

Not by reason by policy they got in here.

Leonard B. Sand:

The American Law Institute after studying the conflicting state decisions, some of which are relied upon so heavily by petitioner recommended that the law of the Federal Courts be adopted and that a finding of guilty of a lesser included offense which is subsequently set aside is not the acquittal of the great offence.

The American Law Institute comment, it’s very pertinent to this case.

It is that when he, the defendant, procures the reversal on the ground that his conduct or what constitutes the great offense does not constitute the lesser offense, subsequent prosecution for the great offense is certainly warranted, that’s precisely the government’s position.

Earl Warren:

Mr. Sand may I ask this question.

In this case there were three verdicts submitted by the judge.

One for guilty or not guilty of arson, one guilty or not guilty of first degree murder and one guilty or not guilty of second degree murder.

Suppose in this case that the jury had specifically found the defendant not guilty of first degree murder but he did as it did here finding guilty of both second degree murder and arson.

He took the appeal.

The case was reversed for the same reason it was reversed here.

Would your situation be changed legally?

Leonard B. Sand:

Under the Trono case the result would be the same.

I —

Earl Warren:

No I am asking your position, would you be arguing here as you are arguing now to retry this man?

Leonard B. Sand:

Well I would, I would — following the language and reasoning of the Supreme Court in the Trono case, I would be arguing that such a retrial was possible, but I emphasis the fact that that is clearly not in this case and I think that the, the other two reasons to which I would like now to direct myself why that does not in this case are significant.

I believe that for the Court to hold that this case — that retrial here violates double jeopardy the Court would have to overrule the Trono case, but I do not believe that to affirm here the Court would have to accept the full ramifications of the Trono case because of the facts peculiar to this case that to which I am now directing.

Felix Frankfurter:

I want to be sure, I, I mean taking Chief Justice’s questions, it must be very important, I want to be sure whether I understand, that you understand your questions you (Inaudible) your answers.

Let me put my question, out it in my language, if the jury having been charged by the judge in a way that enabled (Inaudible) there, suppose the judges charge under this indictment, charges the defendants with murder you may bring in a verdict of conviction or acquittal for murder, but you may also find it is the law that charges that under this indictment, under this count for murder it includes murder in the second degree or manslaughter even though you may find as your line under the appropriate charge of what constitutes premeditated murder in the District of Columbia, you may bring in a verdict of manslaughter or murder in the second degree, explicitly, as explicitly as I have tried to elicit.

Have I put my question clearly so I could then – I’ve put the facts so I can then answer – ask my question.

Leonard B. Sand:

Yes.

Felix Frankfurter:

The jury then says in clear and unambiguous words (Inaudible) their foreman; we are all agreed in finding that the defendant is not guilty of murder.

We are agreed in finding that he is innocent of charge of murder but we find that the defendant is guilty of manslaughter.

And he then appeals for one reason or another, one alleged there or another conviction, a sentence following the verdict for manslaughter.

My question is and that alleged – and the error claimed by and is sustained by the Court of Appeals and they said a new trial must be granted, may the government then prosecute him — the government then pursued on the new trial of charge resulting in a conviction for murder, you want to give an answer to that?

Leonard B. Sand:

My answer to that is that I think Mr. Justice Frankfurter you have stated in your — in your question to me the facts in Trono in that I in Trono there was agreed a specific finding of acquittal of the great offense.

And throughout the majority and the minority opinion there is reference to the fact that there was an acquittal.

And so if one were to accept the full ramifications of the Trono decision, one would have to say that new trial for murder would be permitted.

But this, the second factor which is peculiar to this case is that here the nature of the error was such that a prejudice both, both the government and the defendant, one can only speculate and it’s ideal speculation whether had the jury at the first trial been properly instructed that they must find first degree murder or acquit, they would have acquitted, or would have done what the jury did at the second trial on substantially on some same evidence, but properly instructed, find the defendant guilty of first degree, and a third factor which is peculiar to this case is that looking at the verdict returned by the jury at the first case, at the first trial, one cannot fairly say that, that jury acquitted the defendant of the crime (Inaudible)

Hugo L. Black:

Suppose they had and would as you would charge them the defendant guilty of murder in the first degree (Inaudible) find the defendant not guilty of murder in the first degree, re-review find the guilty of murder in the second degree. Can you think there is any difference in the Constitution (Inaudible)

Leonard B. Sand:

I think not.

As the Trono case holds —

Hugo L. Black:

(Inaudible) where a jury had chance to convict of two, but convicts of one but does not convict of the other —

Leonard B. Sand:

But the reason it convicts of one and not the other is because there is an error in that proceeding, the very —

Hugo L. Black:

You mean by that if they had – if that conviction of second degree murder, the Court was wrong in submitting second degree murder to him, but he wasn’t wrong in submitting first degree murder and they did what I would suppose on the constitutional level (Inaudible).

Then the Court comes along and grants him a rebuttal on the second degree murder charge.

What’s the difference in this case and one (Inaudible) they returned the verdict they we the jury find the defendant not guilty of murder in the first degree?

Leonard B. Sand:

We get this somewhat paradoxical situation.

The petitioner is urging that because it was error to instruct the first jury that they might find the defendant guilty of second degree murder, then at a second trial the jury must be instructed that the only crime for which they can find the defendant guilty is second degree murder.

Hugo L. Black:

But you’re doing this on the basis that it would have to be equivalent of verdict of acquittal for murder in the first degree, what’s wrong with that (Inaudible)

Leonard B. Sand:

Well, I think what is wrong with it Mr. Justice Black is that the Supreme Court in Trono has held that, that is not a violation of double jeopardy.

Hugo L. Black:

In other words what you go back to (Inaudible) they find murder in first degree, second degree, manslaughter (Inaudible) they can try him and use the murder in the first degree.

Leonard B. Sand:

Trono says that.

Hugo L. Black:

You’re saying is we ought to accept Trono as holding in part (Inaudible)

Felix Frankfurter:

Are you on behalf of the government admitting that if a jury says nothing it is the same thing as when he says something?

Are you saying that a jury says (Inaudible) that’s the same, that’s exactly the same thing as when they say nothing about it, but bring in a verdict for a lesser offense, is that what you’re saying for the government?

Leonard B. Sand:

No I’m not.

Where the jury —

Earl Warren:

What is the difference?

Tell us the precise difference between the two, will you please, where a man is charged with murder and he is given two murders, one for first degree murder, one of second degree murder.

What is the difference if those are submitted to him and the court receives the verdict, one of them is blank and the other is a conviction?

What is the difference between that case (Inaudible)

Leonard B. Sand:

I come back to saying that in the view taken by this Court in Trono, if we are dealing with lesser included offenses, and there is a reversal — not only a reversal of the conviction for the lesser included offenses, but as a first proceeding there is a specific finding acquittal which were the facts in Trono, but there is no difference, that the second trial is permissible.

Earl Warren:

Is this an included offense?

Leonard B. Sand:

Arson the government submits is in no way a lesser included offense, but second degree murder is a lesser included offense as the District of Columbia Court of Appeals has held where the facts permit it to be such, in the felony and murder case —

Earl Warren:

It is another kind of a crime but not here.

You don’t contend do you that the second degree murder is an included offence under this indictment?

Leonard B. Sand:

No.

We state that the reversal of —

Earl Warren:

You answered me one way, you said to me that you would be in the same legal position if those two situations that I pointed out to you where here, whichever one was here, you answered the opposite to Justice Frankfurter.

Now just which is that I would like to know, I would like to know, if there is any — would be any difference in your position here, if instead of returning a blank verdict, on the first degree issue, the jury specifically said we the jury find the defendant not guilty of first degree murder.

Felix Frankfurter:

May I state —

Earl Warren:

May I ask my question and then —

Felix Frankfurter:

(Inaudible)

Earl Warren:

No, but I would like to have my question, then please you can answer your question any way you want, but you’ve got him confused with now I think, I would like to have him answer my question.

Leonard B. Sand:

I don’t mean to be (Inaudible)

Earl Warren:

I’m sure you don’t.

You are confused by the questions.

Felix Frankfurter:

You are confused by Mr. Justice Frankfurter’s suggestion.

Earl Warren:

I think so.

Felix Frankfurter:

(Inaudible)

Earl Warren:

But we weren’t helping him, we were confusing him.

Felix Frankfurter:

Yes.

Leonard B. Sand:

I think that where there has been a conviction for a lesser included offence, that the — and the conviction is reversed, that the government may then retry the defendant for the greater offence.

I think that this follows regardless of whether informed, the jury says we acquit the defendant of first degree murder, but find him guilty of second degree murder or whether the jury says merely we find the defendant guilty of second degree murder.

Earl Warren:

Now I would just like to ask you one more question and then I’m going to leave it.

Is second degree murder an included offense under this indictment?

Leonard B. Sand:

Under the laws that has been found by the Court of Appeals for the District of Columbia interpreting a District of Columbia statue, where the facts are such that there may have been committed another form of murder other than the felony murder, then second degree murder would be a lesser included offense, for example, where and I’m stating the facts in the Goodall case, in the District of Columbia.

Earl Warren:

But let’s take the indictment and the facts of this case, I don’t care about the Goodall case right now.

Under the indictment and the facts of this case, is second degree murder an included offense?

Leonard B. Sand:

No Your Honor, it would have been — it was error to charge the jury that they could find second degree murder and the jury could not have found.

Earl Warren:

Right and now excuse me for taking for much —

Leonard B. Sand:

No, I welcome the Court —

Felix Frankfurter:

Let’s see if can I put my question as clearly as I can and protect your innocence (Inaudible).

My question is and what I was speaking to (Inaudible) Chief Justice’s question and agree with it, my question as I understand that his question (Inaudible) don’t give an answer to me whatever you have given to them, don’t answer on the basis of Trono, Trono doesn’t exist, wipe it out from your mind, and I’d like to pursue this question.

Are you on behalf of a government claim that in fact in human experience, in the experience of everybody who has tried cases, when a jury brings in, in turn a verdict saying we acquit this man of battery with malice or any other serious offense, grand larceny, we acquit him of grand larceny, you send him to jail for ten years.

Well a jury comes in and uses those explicit words of determination of finding of acquittal.

Is that in your view not legal consequence, I’m not now talking about legal consequence, prepare that for legal consequences, until you get with reality first with experience, with what takes place in life.

I want know whether you say on behalf of the government that when a jury says we acquit him, but we find him guilty first of manslaughter or petty larceny that that is the same thing when they say nothing and just bring in a verdict for the lesser offence, are you saying that for the government?

Leonard B. Sand:

In terms of reality and not in legal consequences, of course we know that the reason that the jury is of course different and the jury did not in fact —

Felix Frankfurter:

I’m not talking about this case, I’m talking about the generality, well anybody would tried cases, who is saying that when a jury says we acquit that’s the same thing as when they say nothing but just give the verdict for a lesser offense.

I suggest before you answer on the facts, the experience, the workings of the mind of the jury, the consequences, of what that means in fact, not legal consequences, I’m not taking about that at the moment, before you answer that affirmatively you got to consult (Inaudible) whether they think when the jury says nothing it means the opposite to this, they say something.

Leonard B. Sand:

Now from the verdict of this jury, what in fact they found, they found that the defendant was guilty of arson, they found that the victim died as a result of the actions by the defendant, and so in essence we know that in fact that first jury found that the defendant was guilty of all the elements of felony murder and so in those sense, in fact all legal consequences did that first jury acquit the defendant of murder.

The government provides not only on the Trono case which is — and it is not the only holding by the Court on this point, but also on Brantley against the State of Georgia in 217 US, which came under writ of error from the state court, there the defendant was convicted of voluntary manslaughter and obtained a reversal of that conviction.

On retrial he claimed that he could not be tried for the greater of offence, for murder, either under the Fifth Amendment or the Fourteenth Amendment.

The question not having then been resolved by this Court, whether the Fifth Amendment and its prohibition against double jeopardy applied to the states whether directly or whether it was an aspect of due process under the Fourteenth Amendment.

The Supreme Court in a unanimous per curiam decision stated that the contention that retrial for the greater offense was a violation of double jeopardy, it is absolutely without matter, it was not a case of questioning jeopardy under any view of the Constitution of the United States.

The reasoning supports the Trono decisions.

As I’ve said, the consequence of a contrary view is that the error which is committed at the first trial, is not eradicated by a reversal of a conviction that is perpetuated.

Moreover, what occurs is this.

There is no valid finding that the act ever occurred, that the defendant ever caused the death of the victim, but there is a finding that if he did cause the death of the victim, it was not by premeditation or under such other circumstances as with need to the greater offense, the aggravated offense, if the contrary rule binds the hands of the second jury regardless of the evidence presented at the second trial.

I would now like to direct myself to the prior un-appealed conviction for arson and say briefly that arson is in no sense a lesser included offense of a crime of murder.

The jury could not have returned a verdict of guilty of arson on the murder count of the indictment.

Arson of course is a crime against property that the gist of the felony murder — of the murder count is a homicide.

Such cases as States against Cooper which hold that out of one transaction there can be only be one crime.

That of course has been rejected by this Court.

Nor does res judicata as applied to the prior un-appealed conviction, a petitioner, for that judgment — where the only judgment reflected in the arson conviction is a finding by the jury that the defendant did set the fire.

This is unlike those cases where there is a prior acquittal with respect to a base of underlying facts such as the (Inaudible) where it has been said that the government is precluded from seeking to reestablish a fact which a prior jury has found could not exist.

With respect to the argument that the Court of Appeals lacked the jurisdiction to remand for a retrial under Section 2106, the Court of Appeals is specifically empowered to remand a case for such further proceedings as maybe just under the circumstances.

Since the only theory of the reversal was that this crime could be first degree murder and no other crime, obviously the only course open to the Court of Appeals was to remand for retrial for the greater offense.

Collateral estoppel of course was not applied to a prior reversed verdict in the same proceeding and moreover there is no basic evidentiary fact found by the jury in the first case, at the first trial which in anyway exculpates the defendant.

I would like turn now to alleged errors at the trial itself, and with respect to petitioner’s contention that prejudicial error resulted from the admission into evidence of a prearranged basis, and in this respect I think it maybe helpful to briefly sketch in chronological sequence, the events which led to the taking of those statements.

On the morning of May 26, 1953, at 7:40 that morning, firemen arrived at the scene and broke into this house on Massachusetts Avenue, the doors and windows of which were locked.

They found on entering that the victim had perished, and that the petitioner was suffering from superficial stab wounds and from exposure to smoke.

He was immediately taken to emergency hospital.

At about 8:45 that same morning, Sergeant Kocher after he introduced himself as a member of the homicide squad, questioned petitioner for about 15 minutes in examining room of the emergency hospital while doctors and nurses were coming and going.

Petitioner at this time was neither under arrest nor in police custody.

In fact Sergeant Kocher did not even know at that time that the fire was the result of arson, and he did not even know in other words that there was any crime that had been committed.

He only knew as he testified that someone had perished in the file.

At the time of the questioning petitioner’s answers were clear and coherent.

He stated that he awoke at 7:40 that morning, that he smelled smoke, that he was attacked, that he went down the basement, that he was attacked and there.

This was the same basic story that petitioner told in later interviews and at the trial.

Leonard B. Sand:

Between the time of the arrival on the scene and 10 o’clock of the fire and 10 o’clock that morning, back at the scene it was ascertained that the fire was the result of arson, in that there were five separate and independent fires which were started by the use of turpentine, and that the gas lights had been opened.

Thereupon Sergeant Kocher returned to the hospital, it’s now 10 o’clock on the morning of the fire.

Petitioner is still in the examining room and he is asked these five separate fires and the gas blast and he says that they must have been started by this man who attacked him.

But stationary was also found on the scene and petitioner was asked whether he had been writing any letters and he denied it.

At about 2:10 the same day petitioner was taken to the District of Columbia Hospital.

He was at this time placed in a locked ward with a dozen other patients and a police guard.

This is the earliest time that it can be said that petitioner was in police custody.

In this respect the opinion of Judge Bazelon dissenting below is significant.

Because Judge Bazelon states that on Tuesday afternoon to Thursday, he petitioner was under arrest and the statements here in question are those obtained from him during that period in interrogations by two policemen and two fire inspectors.

But from Tuesday afternoon Judge Bazelon says, and it would appear from this that he does not address himself to the question of the admissibility of the testimony with respect to the questioning on Tuesday morning at a time when petitioner was really not under any form of police detention.

Since the story which petitioner told on Tuesday morning was in all substantial assessment, the identical story as he told on later occasions it is clear that that no right (Inaudible) was prejudiced by the admission of this evidence into testimony.

Under the Mitchell case a confession made immediately after arrest is not invalidated ab initio by virtue of a subsequent unlawful detention.

Therefore even if it was assumed arguendo that there was such a subsequent unlawful detention, petitioner has not contested it by the testimony adduced by the government at this stage.

The questioning on the afternoon at the time when petitioner was in the locked ward, (Inaudible) previously as told to the investigating officer and there was no questioning on the 27th, the Wednesday without following the file.

The petitioner was again questioned on Thursday the 28th.

At the trial there was held voir dire to determine the admissibility of these prearrangement statements and at that voir dire defense counsel (Inaudible) evidence which the government could have easily put to trial because this is after all a second trial, a retrial specifically waived any objection to the introduction of testimony with respect to the questioning on the 28th.

This case is entirely unlike the Mallory case where there was a situation created by the investigating officer designedly or otherwise during which there was the opportunity to extract the confession.

This is not the case.

Even as the dissenting judge concedes the delay in arraigning the petitioner was an unavoidable delay and not created by the government.

I would like then to direct myself to the question of the remarks made by the government attorney in summation.

And the claim of these remarks prejudiced petitioner because they minimize the responsibility of the trial judge.

We content that the remarks of the government’s attorney in the context of this trial did not constitute prejudicial error.

We know at the outset that no objection was made to these remarks prior to the verdict.

There was or hasn’t been claimed that the trial judge’s instructions to the jury were in any way improper.

Although the defense counsel was specifically given an opportunity to submit any kind of instructions to the jury subsequently to these remarks, he did not avail himself of that opportunity.

Under the felony murder statute imposition of the death sentence by the trial judge is mandatory.

This fact emphasizes that the role of the jury in this case is simply a fact finding function.

There was — it was not open to the jury in this case to make any recommendation with respect to sentencing and so there was no occasion for the jury to get into that area of the case.

Its functions were simply a fact finding functions and although the imposition of the death sentence by the trial judge was mandatory, it was not of course inevitable that that sentence to be ultimately be carried out.

Defense counsel, however, sought to create the impression that the function of the jury was not merely to find the facts, but also to impose sentence or as you put it to send the defendant to the electric chair and the death sentence was not only mandatory, but that its exposition was inevitable.

Earl Warren:

We’ll recess now Mr. –