Gregg v. United States

PETITIONER:Gregg
RESPONDENT:United States
LOCATION:United States District Court for the Northern District of Illinois, Eastern Division

DOCKET NO.: 453
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 394 US 489 (1969)
ARGUED: Feb 25, 1969
DECIDED: Apr 02, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – February 25, 1969 in Gregg v. United States

Earl Warren:

Number 453, Gregg against United States.

Mr. Richards.

Dean E. Richards:

Mr. Chief Justice and may it please the Court.

My name is Dean Richards in Indianapolis, Indiana.

Because the facts of this case can be summarized easily, I will begin with a brief summary.

The petitioner was convicted of a crime in the Western District of Kentucky Federal Court.

Immediately after the jury returned its verdict without pause or recess, the Court ordered the petitioner before the bench to take — the Court asked if the petitioner had any res — comment to make and, after a brief response, the petitioner had been quiet.

At this time, the Court started to make final disposition of the case and, at this time, defense counsel asked that a presentence investigation be made.

The Court, interrupting counsel, stated that a presentence investigation had been made.

It was before him and he had read it.

And then, the Court pronounced sentence.

This was complained of in a direct appeal to the Sixth Circuit and the findings and holdings in the Sixth Circuit were that there was no basis for inferring prejudice from the facts that the district judge had seen the presentence investigation report prior to the time when the jury returned its verdict, and the district judge sentenced the defendant immediately thereafter.

Upon — counsel, upon noting that in a Seventh Circuit Court of Appeals case, Collin versus United States, and a summary case, in fact, the Court held just the opposite, in that, in the Seventh Circuit case, the Court stated that the facts in the record before us effectively rebut the presumption of prejudice from an apparent violation of rule 32 (c) (1).

Thurgood Marshall:

But, Mr. Richards, matter of fact, there’s nothing in this record to show that a judge saw it while the jury was out, is there?

Dean E. Richards:

The Sixth Circuit Court of Appeals had a set of facts presented in the record to them.

The Sixth Circuit Court of Appeals stated that there is nothing to — no basis for inferring prejudice from the facts that the district judge had seen the presentence investigation.

Thurgood Marshall:

Well, I’m familiar with that statement, but where in any record is there anything showing that he saw it while the jury was out?

Dean E. Richards:

The jury returned its verdict.

The defendant was in the courtroom.

The Court– the trial judge was on the bench.

The petitioner was asked to come immediately before the bench.

There was no pause and no recess.

The defendant was asked if he had any response.

He made a response, and then the judge started to dispose of the case.

Thurgood Marshall:

Well, did the judge say that “I read this while the jury was out”?

Dean E. Richards:

No, the judge–

Thurgood Marshall:

Did anybody see and read it while the judge was out?

Dean E. Richards:

Did anyone?

Thurgood Marshall:

Yes, sir.

Dean E. Richards:

There is no record on this.

Thurgood Marshall:

Well, where does the Court of Appeals get the fact, and I emphasize “fact,” that the judge read it while the jury was out?

Dean E. Richards:

Because when the–

Thurgood Marshall:

No, where is the fact?

Dean E. Richards:

The fact would be the time element.

When would the judge have had time to have read it?

Thurgood Marshall:

That’s not a fact, is it?

That’s a conclusion, isn’t it?

Dean E. Richards:

A conclusion, but when the–

Thurgood Marshall:

But there is nothing in the record to show that he read it before.

Dean E. Richards:

Well, the question here is not whether he had read it or whether he had seen it, but whether the judge was in receipt of the presentence investigation.

The rules–

Thurgood Marshall:

Did he– When did he receive it?

Dean E. Richards:

It would be our conclusion that he’d have to receive it and be in receipt of the presentence investigation before the jury returned its verdict.

Now, upon noting this conflict between the Seventh Circuit that there is a presumption of prejudice where there is a violation of Rule 32 (1)– 32 (c) (1) by premature reading of a presentence report and the Sixth Circuit holding saying that there is no significance in a trial judge reading of a presentence investigation prematurely unless, also, it was in the record showing some violation that was actually harmful to the defendant, the petitioner then filed application for writ of certiorari noting the points, one, that there was a conflict between the Seventh Circuit and the Sixth Circuit, two, that why this Court should not exercise its supervisory powers over the federal system of criminal justice to invoke Rule 32 (c) (1), and also to prohibit further the taking of presentence investigations before a determination of guilt has been made by a defendant or the defendant has plead guilty in the absence of an intelligent conc —

Byron R. White:

Well, that’s what the rule says.

The report shall not be submitted to the Court unless the defendant has pleaded guilty or has been found guilty.

Dean E. Richards:

That’s correct.

Byron R. White:

I gather your argument is that, in this instance, it was clear since the judge said he had it, that, somehow, it had been submitted to him before the jury returned its verdict.

Dean E. Richards:

That’s right.

That he was in receipt of the rep —

Byron R. White:

Or, if the rule means what it says, then obviously, the Court below was wrong, wasn’t it?

Dean E. Richards:

That’s correct.

There was an apparent violation.

Now, the — stated exactly what position we have and in view of the Solicitor General’s brief, I think it’s appropriate to state very briefly what this appeal is not.

In our petition for writ of certiorari, no constitutional provisions were invoked.

No mention was ever made of the United States Constitution.

In the Solicitor General’s brief, however, a very substantial effort was made to characterize our case as a due process case and then argue it on the harmless error versus prejudicial error from a substitute standpoint.

And, in our brief on its merits, no constitutional provisions were invoked, nor was the United States Constitution mentioned.

Likewise, it should be noted that, in the granting of the writ of certiorari, no constitutional provisions were mentioned.

The Solicitor General’s brief has made much of the fact that the petitioner has not demonstrated actual prejudice to himself resulting from this apparent violation of Rule 32 (c) (1).

William O. Douglas:

Well, there, I suppose that the dangerous part of the prejudice issue is the power-accepting rule.

Dean E. Richards:

That’s correct.

The Sixth Circuit places upon the petitioner, and almost irrebuttable, presumption of non-prejudice when a trial judge reads — prematurely reads a presentence investigation.

William O. Douglas:

I suppose we view it as it was.

We read it as some doctrine protected by the rule.

Dean E. Richards:

Yes.

William O. Douglas:

What was it?

Dean E. Richards:

Well, our feeling that why a — it should not be submitted to the Court would be possible prejudice to the defendant and I also, along with this, I argue that the rule also states that a presentence investigation should not be bait before a conviction or a plea of guilty unless there’s intelligent consent.

A presentence investigation can be very harm — very helpful to the defendant in granting probation if he is convicted.

Now, in the present case, there was no consent by Gregg.

He did not know a presentence investigation had been made of him.

Abe Fortas:

Well, that’s not really before us.

I know you — as I recall, your argument had great length, but–

Dean E. Richards:

Yes.

Abe Fortas:

That question of whether the presentence investigation may be made without petitioner’s consent and before a guilty plea or a finding of guilt is not really presented by this case, is it?

Dean E. Richards:

That’s correct.

That this was — the writ of certiorari was granted upon facts concerning Rule 32 (c) (1) and, because it manifests social importance, I did add it in my brief.

William J. Brennan, Jr.:

Is there really anything for us to decide beyond whether the rule is going to be enforced as written?

Dean E. Richards:

Yes.

William J. Brennan, Jr.:

If it’s a prophylactic rule, whether or not there’s prejudice, I would suppose, is unimportant.

If, under the language of the rule, it means what it says, then what happened here was wrong.

Dean E. Richards:

That’s correct.

William J. Brennan, Jr.:

Alright.

Dean E. Richards:

The prejudice that we’re speaking of here is not prejudice to the defendant’s substantial or substantive rights.

William J. Brennan, Jr.:

I don’t even see why you talk about prejudice.

Dean E. Richards:

Well, the–

William J. Brennan, Jr.:

If your position is that the rule should be enforced is written, why isn’t that the end of your case?

Dean E. Richards:

Because — we have mentioned it in our case because the Solicitor General’s brief, in response to our brief, has made– as trying to make a question of this, is why I am mentioning it before the Court now.

We’re arguing prejudice to the federal rules.

The federal rules of criminal procedure are the mandatory or their advisory.

Thurgood Marshall:

Mr. Richards, what do you want us to do, give him a new trial?

Dean E. Richards:

Yes.

Thurgood Marshall:

A new trial?

Dean E. Richards:

Yes.

Thurgood Marshall:

Well, how did this affect the jury’s verdict?

Dean E. Richards:

I feel that —

Thurgood Marshall:

How?

How did this — the jury didn’t see this, did they?

Dean E. Richards:

They did not.

Thurgood Marshall:

The presentence report?

Dean E. Richards:

They did not, but —

Thurgood Marshall:

Well, how did this affect the jury’s verdict?

Dean E. Richards:

Because it could have affected the Trial Court’s handling of the trial.

I feel that it was there but, from the record, I cannot make a due process contention.

Thurgood Marshall:

Well, are you arguing to us that the judge had it before the trial?

Dean E. Richards:

I’m arguing that —

Thurgood Marshall:

And, if you say “yes,” I’m asking you, where do you get it from?

Dean E. Richards:

I do not know when the judge had it before the trial.

Thurgood Marshall:

Well, how do you —

Dean E. Richards:

The judge admitted, after the verdict was returned, that he had it in his possession and he’d already read it.

The presentence invest —

Thurgood Marshall:

Because the judge, according to you, violated the rule.

Dean E. Richards:

Yes.

Thurgood Marshall:

The man is entitled to a whole brand new trial.

Dean E. Richards:

Yes, as —

Thurgood Marshall:

Well, he can still be tried on the same indictment, I hope.

Dean E. Richards:

That’s correct.

Thurgood Marshall:

Thank you.

Dean E. Richards:

The rules, if they are advisory, then the defendant Gregg have no standing.

If they are mandatory, then certain rules based upon constitutional considerations can be, in due course, enforced by due process considerations.

Dean E. Richards:

But, the rest of the rules, how can they be enforced?

They can only be enforced by this Court using its supervisory powers on the strict enforcement of the federal rules of criminal procedure.

Byron R. White:

Well, wasn’t it physically possible for the judge to have read the — to have seen and read the report after the jury came in and return its verdict?

Dean E. Richards:

We are contending no.

The —

Byron R. White:

Why?

Dean E. Richards:

The presentence investigation is generally a lengthy document.

The jury re —

Byron R. White:

How long?

Dean E. Richards:

I have not seen the presentence investigation and that there has not been a Court order to let counsel read these presentence investigation.

Hugo L. Black:

Why do you say you couldn’t have read it?

Dean E. Richards:

Because the jury —

Hugo L. Black:

It might have been a page actually.

Dean E. Richards:

Well, this is very possible but the jury, with the petitioner in the room, the trial judge in the room, the jury walked back into the courthouse — courtroom and then it returned its verdict at this time.

Then, the trial judge asked the defendant to approach the bench and asked if he had a response.

Then, he made a response.

Then, the judge started to pronounce sentence, and then the defense counsel asked that a presentence investigation be made.

Then, the trial judge stated, “A presentence investigation has been made.

I have read it and it’s before me now.”

Then, he read from a small portion of the presentence investigation.

Hugo L. Black:

He read it before his eyes.

Dean E. Richards:

Yes, it was there on the bench at this time.

Byron R. White:

Was the jury told?

Dean E. Richards:

Yes.

At this time, when the jury — when I said the jury returned to the court —

Byron R. White:

That the judge could’ve read it during that time?

Dean E. Richards:

Your Honor?

Byron R. White:

That the judge could’ve read the report during that time?

Dean E. Richards:

The jury, during this — the judge, at this time, was polling the jury.

Byron R. White:

Yes.

Dean E. Richards:

And, when the jury was polled, then there was a comment concerning when that they were to return to further jury duty and, without pause —

Byron R. White:

Did the judge call the jury in this case or the clerk?

Dean E. Richards:

The clerk — the judge, I believe, asked counsel if —

Byron R. White:

Well, no.

The judge himself says, by the Court, “I’ll ask each individual juror —

Dean E. Richards:

Yes.

Byron R. White:

If that’s your verdict,” which I should suppose means that the judge himself polled the jury.

Dean E. Richards:

That’s correct.

And then, without pause, without recess, the defendant was called before the bench.

This is when the petitioner found that a presentence investigation had been made without the petitioner’s consent and the petitioner was asked to respond if he had anything to say for himself, not knowing that a presentence investigation had been made.

In Smith versus United States, Justice Cark, in two concurring opinion — two concurring justices, in a separate opinion in that case, said that there is a presumption of prejudice when there is an apparent violation of Rule 32 (c) (1), and he further — a judge — Justice Clark made it clear that the presumption of prejudice that he wrote was reached without due process considerations.

His considerations were strictly procedural and that the Court, through its powers of supervision over the exercise of power to supervisions over the federal system of criminal justice, should grant a new trial on this matter.

Now, the question before us is whether the conduct of the trial judge and of the conduct of the probation officer, in this case, constitutes such a procedural, not constitutional but a procedural, irregularity as to require an exercise of supervisory powers of this Court.

How are the federal rules of criminal procedure going to be enforced if the defendant does not enforce them?

The government certainly will not.

The rules will not be enforced unless you would give him some type of a bounty to enforce the rules, give him a new trial.

If he is not given a new trial, then why would a petitioner ever want to seek his appellate relief if there’s a violation of the federal rules of criminal procedure?

William J. Brennan, Jr.:

I gather, resentence, in this case, is meaningless because it’s a mandatory sentence, isn’t it?

Dean E. Richards:

That’s correct.

William J. Brennan, Jr.:

25 years?

Dean E. Richards:

Yes, but in the case —

William J. Brennan, Jr.:

Well, I mean, in your — in this case.

Dean E. Richards:

Yes.

William J. Brennan, Jr.:

I gather you — one of your arguments, that it’s not enough just to send it back for resentences that the judge is powerless to give him anything less then.

Dean E. Richards:

Yes.

William J. Brennan, Jr.:

Only five years, is that right?

Dean E. Richards:

That’s correct.

If this case is remanded back for resentencing, then we still have —

Thurgood Marshall:

I thought we could put him on probation?

Dean E. Richards:

He has an alternative decision, probation or a mandatory 25-year sentence with no possibility of parole.

Byron R. White:

Well, if that — then it could be a resentence procedure, is that it, here?

Dean E. Richards:

No.

Byron R. White:

Why?

Dean E. Richards:

It could be, but the effect was just now.

Byron R. White:

What he got was 25 — he got mandatory 25 years.

Dean E. Richards:

That’s correct.

Byron R. White:

But, on resentence, it might be that he get probation out of that.

Dean E. Richards:

The district judge has read the presentence investigation with — had a presentence investigation was made without even an interview made of the defendant.

Byron R. White:

But, is it your argument that the purpose of the — of this rule is to except the tryer or the judge, presiding judge with the jury from becoming prejudice against the defendant by reading the presentence report.

Dean E. Richards:

We’re speaking — the petitioner is speaking of prejudice to the federal rules.

Either they’re advisory —

Byron R. White:

Is this sort of an error to the principle?

Dean E. Richards:

That’s correct, procedural irregularities, either they’re advisory or they’re mandatory.

Byron R. White:

When you say that we not only — that it isn’t because of possible prejudice against the defendant during the trial that you wanted to try.

Dean E. Richards:

No.

Byron R. White:

It’s just —

Dean E. Richards:

Based — That’s correct.

Byron R. White:

Just because — as a deterrent, as a remedy, as a remedial matter, you ought to order a new trial —

Dean E. Richards:

That’s correct.

Byron R. White:

Just to make judges obey the rules.

Dean E. Richards:

That’s correct.

That is our contention.

We are — we do not have a due process contention before this Court.

We’re asking the Court to exercise supervisory powers and enforce the federal rules of procedure.

Byron R. White:

And you don’t suggest there was any prejudice in any respect of this.

Dean E. Richards:

Yes.

I feel that there’s prejudice.

Byron R. White:

I mean, prejudice to the defendant — in any concrete way —

Dean E. Richards:

Yes.

Byron R. White:

Of having the report.

Dean E. Richards:

Yes, I feel that —

Byron R. White:

What is it?

Dean E. Richards:

I have not looked at the report.

Byron R. White:

I know, but what would you say the prejudice is?

Thurgood Marshall:

You don’t have a right to look at it.

Dean E. Richards:

I understand that there is not — there has been a report.

Thurgood Marshall:

Well, you’re not raising that point, too, are you?

Dean E. Richards:

No.

I’m — if any prejudice — now, I’m not stating that there is prejudice to the defendant and if there is prejudice there is not —

Byron R. White:

Would you say there is a likelihood of prejudice in this case on these facts?

Dean E. Richards:

I feel that there is prejudice.

I feel that there is prejudice —

Byron R. White:

What is it?

Dean E. Richards:

Well, the prejudice would be, from the record, such as the Court’s not letting the defendant have an instruction on lesser included defense, the undue haste, in which this trial was given or was directed through, not allowing —

Byron R. White:

Was there a competency hearing in this case?

Dean E. Richards:

No.

A presentence — a pre-mental examination was made of the defendant to determine whether he was competent to stand trial and that report was submitted to the Court.

Byron R. White:

And, what did that have in it?

Dean E. Richards:

What did that have in it?

Byron R. White:

Yes.

Dean E. Richards:

It had the defendant’s — part of the defendant’s past criminal background.

It had his education, his mental problems, his —

Byron R. White:

Do you suppose they had as much in it as the presentence report did?

Dean E. Richards:

It could have, but I presume that the pre-mental examination report would be only used for the purpose of determining whether the petitioner was competent to stand trial, not to be used to determine whether the petitioner should be given probation or should be given a 25-year mandatory sentence.

William J. Brennan, Jr.:

Well, I must say, from what the Court revealed of what the presentence investigation report contained at page 7, it must’ve been a lengthy report.

Dean E. Richards:

Yes, it was.

William J. Brennan, Jr.:

He certainly had quite a record, didn’t he?

Dean E. Richards:

Yes.

William J. Brennan, Jr.:

Juvenile record, 1960, an automobile — stolen automobile, parole in 1965, parole in 1962, parole violator in 1965, convicted of armed robbery in Arizona, 7-10 years, several warrants now against him charging robbery.

Dean E. Richards:

That’s correct.

William J. Brennan, Jr.:

That’s in the long report.

That was in the competency report, too.

Dean E. Richards:

That was in the competency report, yes.

That was submitted to the Court.

We’re stating that there is prejudice to the rules.

That who is going to enforce the federal rules of criminal procedure?

Why would a defendant seek his appellate remedies unless he can get a new trial if a federal rule is violated during the course of his trial or if he would only be given a resentencing?

We argue that the federal rules should be made mandatory and, if there is a violation such as a violation of Rule 32 (c) (1), that the defendant should be given a new trial.

Hugo L. Black:

Suppose, in this case, it was shown that the pretrial investigations and mental capacity showed every fact from the beginning to the end, in every word, in the same length that was shown in the presentence report.

Would you still say that your case should be reversed?

Dean E. Richards:

I do not know what was at the presentence investigation.

Hugo L. Black:

I know you don’t, but you were saying it should be automatically reversed.

Always, that’s a rigid rule, but you would say that if he’d already been — read it all in a proper report, probably before it?

Dean E. Richards:

Yes, because our appeal is based upon prejudice not to the defendant, but prejudice to the federal rule of criminal procedures.

Hugo L. Black:

Maybe the rules don’t have a right to appeal.

Dean E. Richards:

But, defendants do and the only way that —

Hugo L. Black:

I know, but you say prejudice to the federal rules.

Dean E. Richards:

That’s correct.

Hugo L. Black:

Prejudice done to the federal rules, that’s the appeal.

Dean E. Richards:

That’s the appeal.

Hugo L. Black:

I thought it was the appeal of the defendant.

Dean E. Richards:

That’s correct, but the defendant has asked in this Court for a strict enforcement of the federal rules of criminal procedures.

Hugo L. Black:

Even though it didn’t have it?

Dean E. Richards:

We, it is —

Hugo L. Black:

If you assume it didn’t hear him, you say he’s entitled to it?

Dean E. Richards:

That’s correct.

We do not have a due process contention.

Hugo L. Black:

To vindicate the rules.

Dean E. Richards:

Your Honor?

The issue here is not a due process, but whether this Court should invoke its supervisory powers over the federal rules and make the federal rules of criminal procedure mandatory.

Abe Fortas:

Well, the purpose of the rule is to prevent what the Rules Committee, and presumably Congress, thought was prejudice, possible prejudice, to defendants.

Dean E. Richards:

That’s correct.

Abe Fortas:

If all of the stuff that’s in these presentence investigatory report, hearsay, gossip, or whatever is in there were scrutinized by the judge in the course of the trial, isn’t that the purpose of the rule?

Dean E. Richards:

That’s correct.

Abe Fortas:

And, when you say you’re not claiming prejudice to the defendant you mean you’re not relying on him, but fact of the rule, the purpose of the rule is not just to say something for fun but it’s to safeguard, protect, against what the draftsmen of the rule consider the potential source of unfairness and danger to defendants.

Dean E. Richards:

That is correct, Your Honor.

Rule 32 (c) (1) says the presentence report shall not be presented to the Court.

The Sixth Circuit finding stated that even if the Trial Court did receive the port — re — presentence report prematurely and read it prematurely or was in receipt of it prematurely then, still, this is no basis for inferring prejudice.

The Smith case stated that it was presumptively prejudicial, and Justice Clark put it —

Abe Fortas:

This is in a — if the contrary practice were permitted, it would be like tolerating ex parte statements to the judge about the character of the defendant in his associates and whatnot, ex parte statements with no evidentiary restrictions and with no opportunity for counsel for the defendant to know what’s being said to the judge with no rules against hearsay, gossip, or whatnot, isn’t that right?

Dean E. Richards:

That is correct.

That is exactly — now, in the closing paragraph of the government’s brief they stated that petitioner herein, in one breath, wants the recognition of a previously unrecognized right and the enforcement of that right on a sweeping scale.

Now, in our closing statement, I would like to say that this case may or may not have forereaching implications, but the — to the petitioner, the implications are very singular and very unique.

All that the petitioner here wants is a new trial.

In view of this manifest violation of Rule 32 (c) (1) as applied to the petitioner herein, the petitioner does not feel that he is asking too much of this Court.

William J. Brennan, Jr.:

Mr. Gordon — Mr. Richards, when did this rule take its present form?

Dean E. Richards:

I do not know the — July of 1966.

William J. Brennan, Jr.:

These criminal rules were recently revised, you think–

Dean E. Richards:

That’s correct.

I believe —

William J. Brennan, Jr.:

1966?

Dean E. Richards:

I believe so.

I would like to reserve the remaining time for rebuttal.

Earl Warren:

You may.

Dean E. Richards:

Thank you.

Earl Warren:

Mr. Glazer.

Sidney M. Glazer:

Mr. Chief Justice and may it please the Court.

The Court of Appeals decided this case and petitioner’s argument rest upon the assumption that the district judge saw the probation report prior to the time the jury returned its verdict.

While we believe strenuously that this assumption is not supported by the fa — by the record and that this assumption developed from the manner in which the issue was presented below, it is also our position that there is no occasion to set aside this conviction even if the trial judge saw the report prematurely.

We reach this conclusion because it affirmly — affirmably appears in this record that petitioner could not have been prejudiced either by the jury’s determination of guilt or by any of the Court’s ruling by a premature examination of the probation report.

Byron R. White:

Excuse me, Mr. Glazer, may I ask you the question I asked Mr. Richards.

When did it take its — this rule take its present form?

Sidney M. Glazer:

1948, this is —

Byron R. White:

19 —

Sidney M. Glazer:

1948 and the rules were recently amended in 1966.

Byron R. White:

Well, I’m thinking strictly the sentence “the report shall not be submitted to the Court or its contents disclosed unless defendant has pleaded guilty or has been found guilty.”

How long has that sentence been there?

Sidney M. Glazer:

It’s been —

Byron R. White:

In that form?

Sidney M. Glazer:

It’s been that way since 1948.

Byron R. White:

I see.

Thank you.

Sidney M. Glazer:

Petitioner has pointed out that the record shows that, immediately following the verdict, the jury was polled, defendant was called for resentencing, and the Court advised him of the mandatory 25-year sentence which a statute imposes for the robbery of a postal station when lies in jeo — when lies are placed in jeopardy by a dangerous weapon.

At that point, the Court asked defense counsel and defendant if they have anything to say before sentence was pronounced.

Defense counsel then requested delay in sentencing the following week to enable petitioner to spend a few more days with his family.

When the Court indicated that such a stay would not be granted, the defense counsel asked for a presentence report.

The Court, at this point, replied that “a presentence investigation has been made and it is before me now.

I have read it.”

The Court, thereupon, sentenced the defendant to the mandatory 25-year sentence.

Earl Warren:

Now, how long did all of that take?

How many minutes?

Sidney M. Glazer:

The record doesn’t reflect how long that took, Your Honor.

Earl Warren:

Well, I understood from something in the brief said it was a time between 3:30 and 3:36.

Sidney M. Glazer:

Well, that may be — that’s right, excuse me.

Earl Warren:

Now, that’s six minutes.

Sidney M. Glazer:

Six —

Earl Warren:

For all of these to happen and for the judge to review the presentence report and so forth.

Sidney M. Glazer:

In the circumstances of this case, considering the options that the judge had, the judge could’ve scanned the probation report during the time of sentencing.

Thurgood Marshall:

You are certain that the guard — the judge could have looked at this probation report during that time?

Sidney M. Glazer:

Yes, Your Honor.

Sidney M. Glazer:

He could’ve looked at —

Thurgood Marshall:

Well, may I ask you one question before you get so certain.

How long was the probation report?

Sidney M. Glazer:

The probation report has been lodged with the Clerk’s Office.

We — the — we had the probation — we went to the probation officer and asked him to send the report to the clerk of this Court.

Earl Warren:

How long is the report?

Sidney M. Glazer:

The report is four pages long.

Thurgood Marshall:

Four pages long and the whole thing took six minutes.

Sidney M. Glazer:

Right.

Thurgood Marshall:

So, that would be about, what?

It might take six minutes to read four pages.

Sidney M. Glazer:

Well, if the judge had said “I am reading the report” or “I have scanned it,” we wouldn’t have a lawsuit here.

Thurgood Marshall:

No, he said “I have read it.”

Sidney M. Glazer:

“I have read it.”

Thurgood Marshall:

Which means, “I have read it within the six-minute period.”

Sidney M. Glazer:

And —

Thurgood Marshall:

According to you.

Sidney M. Glazer:

He — this is a situation and he could’ve read —

Thurgood Marshall:

Wouldn’t that —

Sidney M. Glazer:

He could’ve read it, speed-read it, during the six-minute period —

Thurgood Marshall:

Was there anything —

Sidney M. Glazer:

Considering the fact —

Thurgood Marshall:

Is there anything in the record to show the judge has taken speed-reading?

Sidney M. Glazer:

No, Your Honor, there isn’t.

Thurgood Marshall:

My point is that, seriously, it appears to me that in the six-minute period he should’ve been listening to what defense counsel was arguing in the — for his client.

He should’ve been listening to what the plain — what the defendant said.

And yet, he used six minutes in reading this four paged document.

Sidney M. Glazer:

Well, in the first place, all defense counsel said during this period is “I want to stay until Monday morning because my client is facing a long sentence and I would like him to spend the last few days with his family.”

Now —

Thurgood Marshall:

I also read that his wife was pregnant and other things.

Thurgood Marshall:

There were little other items in there which a judge should listen to.

Sidney M. Glazer:

Right, and it’d be very simple for the district judge to just scan the report because this is not a sit — this is a case where the district judge was familiar with the defendant’s background.

Six weeks earlier, he had a psychiatric report which detailed defendant’s prior record, detailed defendant’s prior psychological and psychiatric problems.

Earl Warren:

Well, do you mean by such things that he could wipe out the necessity of seeing the report, the probation report?

Sidney M. Glazer:

No.

Earl Warren:

And decide it on those things and not on the — in accordance with the report?

Sidney M. Glazer:

No.

It seems to me, Your Honor, that once you have a probation report in the case and once the issue of competency is in the lawsuit, the judge cannot divorce that issue in — from his mind throughout the lawsuit because any of he —

Earl Warren:

But, should it be prejudiced by it if there’s anything good in the probation report?

Sidney M. Glazer:

Should it be prejudiced by it?

Earl Warren:

Yes, by what he knew before it?

Sidney M. Glazer:

There’s no indication that he was prejudiced by it.

Earl Warren:

Well, you said he knew all about the defendant and, I suppose you meant by that, that he knew about his criminal background and so forth before it ever came —

Sidney M. Glazer:

And he knew about his social history and the problems of the —

Earl Warren:

Well, do you suppose it decided on that or is this probation report supposed to have some significance?

Sidney M. Glazer:

The probation report has significance but, in this situation, what did the judge have to decide on sentencing?

This is not a case where he had the right to decide to impose any sentence up to 25 years.

He had — his options were two, either place this man on probation or give him the mandatory 25-year sentence.

Now, this man had been also — this was — came out in the elements of the case as well as the psychiatric report, had been the week following the date that this crime was committed, had been arrested for bank robbery in another state.

And, that case was also pending in the Federal Court.

He — and the judge, therefore, knew he either had to put him on probation or sentence him to 25 years.

The facts of this crime was such that the defendant here with a companion went into a postal substation, tied and gagged two women, put a gun on the one woman’s head, an threaten to blow her brains out.

Now, on these circumstances, the judge didn’t have to study every single word of the probation report to realize he’s not going to put the man on probation.

He doesn’t have to study every single word to decide “should I give him 5 years or 7 years or 25 years?”

His options are either 25 years or probation, and it seems to me that this is the type of case where he can just scan the report and, on the basis of that, decide that this is not a case for probation and, since his hands are tied by Congress, impose the 25-year mandatory sentence.

Abe Fortas:

What was the date of trial?

Sidney M. Glazer:

What was the date of trial?

I think the date of trial was in May 1967, which was —

Abe Fortas:

How long–

Sidney M. Glazer:

Five or six weeks after arraignment.

Abe Fortas:

How long did the trial last?

Sidney M. Glazer:

The trial lasted one day.

The evidence consisted of the two women who were in the postal substation and also some evidence concerning the defendant being arrested in a motel with the gun and blank money orders which had been taken from the station and, also, there is also evidence that on the day proceeding — on the day of the robbery, the same — the gun in which the defendant was found in possession was purchased in Louisville which was the place of the robbery.

The defendant offered no evidence.

Hugo L. Black:

Was that all of the evidence offered when he decide?

Sidney M. Glazer:

That was all the evidence.

The defendant offered no evidence.

William J. Brennan, Jr.:

May I ask, Mr. Glazer, I take it part of that six minutes was taken up by the judge’s polling each of the jurors.

Sidney M. Glazer:

It indicates — the record indicates the jury was polled, but —

William J. Brennan, Jr.:

Now, it wasn’t part of the six minutes taken up by the judge just polling the jury.

Sidney M. Glazer:

I think it was.

It may have been, but it seems to me that all — in the poll consisted of not asking each jury individually “is this your verdict?” but looking at —

William J. Brennan, Jr.:

What the judge said “I’ll ask each individual juror if that’s your verdict,” whereupon all jurors indicate “affirmatively.”

Sidney M. Glazer:

Yes, well, it’s not a situa — now, it’s — you can’t tell from this record, I assume from this record, that this was a situation where all 12 jurors shook their head affirmatively.

Instead —

William J. Brennan, Jr.:

Why should you assume that?

Sidney M. Glazer:

Well, maybe it’s the other way, but —

William J. Brennan, Jr.:

Just to uphold your reason, I didn’t do it that way.

Sidney M. Glazer:

Well, normally, if the juries are polled the other way, “Mr. So-and-so, is this your verdict?”

The Court reporter would write it down in the record.

And since the Court reported — didn’t record it in the report, I assume it’s the other way.

William J. Brennan, Jr.:

And then, apparently, the judge had some problem whether or not he should ask the jury to come back and that took a little time for this colloquy, didn’t it, out of the six minutes?

Sidney M. Glazer:

Right, it took some time.

William J. Brennan, Jr.:

I mean —

Sidney M. Glazer:

And, it also–

William J. Brennan, Jr.:

Some of the six minutes taken up by his polling the jury and some of the six minutes taken up while he checked on whether or not they were to be called back and, after that was done, then he said “let the defendant come forward.”

Sidney M. Glazer:

Right.

William J. Brennan, Jr.:

And how much of the six minutes was left then?

Sidney M. Glazer:

And also, on the other hand, when the judge came to recite the defendant’s record, it indi — it seems that he’s reading the record at that time.

In other words, like he’s looking at — he says “it shows in 1960, this defendant stole an automobile and was given a deter — an indeterminate youth commitment sentence.

Sidney M. Glazer:

He was paroled in 1965.”

He was returned — no, it indicates that he is actually — he was actually reading the defendant’s past record.

Earl Warren:

Did he offer the defendant an opportunity of allocution?

Sidney M. Glazer:

Yes, he did, Your Honor.

He did, right.

Earl Warren:

What did the defendant say?

Sidney M. Glazer:

Both the defendant and his lawyer, the only thing they said was that they would like some time, another couple of days, the defendant can remain out on bond and be with his wife.

There was no — neither the defendant nor his counsel made any argument or suggestion or — of any mitigating factors at all.

He allowed them to say what they wanted, and they were just interested — I have the view point from this record that they expected the mandatory 25-year sentence and they cited —

Earl Warren:

I know but, Mr. Glazer, do you believe that it is asking too much of the trial judge before he gives any man, I don’t care who he is, any man 25 years of his life in the penitentiary that he do no more than poll the jury ask the defendant whether he has anything to say and after his counsel has spoken briefly, then to say to a man whether he read the probation officer’s report before the jury came in or afterwards that “I sentence you to 25 years” in six minutes time?

Sidney M. Glazer:

Well, it seem —

Earl Warren:

Do you not believe that a federal judge should have more dignity in his Court and more respect for human life than to do a thing of that kind in six minutes?

Sidney M. Glazer:

Well, I think that the whole thing boils down to what is only six minutes is because you know that the Congress hasn’t given the federal judge any choice in this case.

If the federal judge had a choice, “should I give him 5 years, 10 years, 15 years, 20 years, or 25 years?,” that would be a different situation, but that’s not this case.

In this case, the jud — Congress has said “you have to impose a 25-year penalty.”

From the evidence in this case, I submit, that this — the judge wouldn’t — would’ve ruled out probation just from the evidence in this case.

So, this–

Thurgood Marshall:

Well, Mr. Glazer —

Sidney M. Glazer:

In this —

Earl Warren:

Why does he have a probation report for —

Thurgood Marshall:

Right.

Earl Warren:

If he doesn’t go ahead and pay any attention to it?

Sidney M. Glazer:

Well, he did pay some attention to it, but I think he paid the attention to that all this report — all he had to do, all this report — this case required is not — if I would agree with Your Honor that if he had a situation where he could tailor the sentence to fix — to fit the individual, yes, I say maybe he should spend more time.

But, this is a case where he doesn’t have that option.

He only had to decide is “whether I should put this man on probation.”

And I think it’s clear from the evidence in this case and from the defendant’s past record —

Hugo L. Black:

Does this six minutes that you’re talking about begin from the time the probation report was given to the judge?

Sidney M. Glazer:

Well, the record in this case —

Hugo L. Black:

When was it given to the judge?

Sidney M. Glazer:

The record in this case does not show when the probation report was giv —

Hugo L. Black:

But where do you get the six minutes?

Sidney M. Glazer:

Well, the Court has assumed that there’s six minutes on the basis of the jury returning — from the government’s brief that says the jury returned its verdict at 3:24 and then, that the sentencing procedure occurred and was concluded at 3:30.

It’s in the transcript.

Abe Fortas:

Perhaps I may suggest —

Hugo L. Black:

It might be possible that the judge had it while the party will argue the case and what of it is in the argument.

Abe Fortas:

That’s true.

Hugo L. Black:

It would be a lot more than six minutes.

Sidney M. Glazer:

Well, it’s that where there’s —

Abe Fortas:

Mr. Glazer, I suggest to you that the probation report, in which I have just looked, is dated May 19 which was the same day as the trial was held.

The probation report is dated the same day as the trial was held so that in any event, it was not supplied to the judge before the trial.

Sidney M. Glazer:

Before the trial commenced.

Abe Fortas:

But, on the other hand, if the trial had gone on for about a week, he would’ve had the report for a week.

Sidney M. Glazer:

I understand that the practice in this —

Hugo L. Black:

But the trial wouldn’t have gone on for a week because it didn’t have enough witnesses.

Sidney M. Glazer:

That’s right.

Hugo L. Black:

They only had the witnesses who swore that he committed the bank robbery.

William J. Brennan, Jr.:

Well, I thought this trial was on May 31, not May 19.

That’s what the record at page 4 shows, and the verdict — the sentence was on June 1, not on May 19.

Sidney M. Glazer:

Well, the record here does show —

William J. Brennan, Jr.:

Well, alright.

That indicates that the judge may have had the report for two weeks before the trial began which is even worse violation of the rule.

Abe Fortas:

But didn’t you tell me that the trial was on May 19?

Sidney M. Glazer:

Excuse me, Your Honor.

If I did, I made a mistake.

It’s true, not Mr. Justice Brennan is correct.

The trial was on May 31.

Abe Fortas:

Perhaps it was my error.

Then, the probation report which I have here is — has the date May 19.

Sidney M. Glazer:

Well —

Abe Fortas:

It’s not clear what that signifies, but that is the date that appears on the probation report.

Sidney M. Glazer:

Well, this record does not reflect when the probation officer submitted the report to the judge.

I understand it’s the practice in this district for the probation officer to remain in the courtroom while the jury is out and then when the jury reaches its verdict and, if the verdict is guilty, at that time, it’s the common practice of this district for the probation officer to deliver the report to the Court.

It also–

Earl Warren:

Is that in the record?

Sidney M. Glazer:

What?

Earl Warren:

Is that in the record?

Sidney M. Glazer:

The record has no indication at all.

The record — that’s what–

Earl Warren:

Why do you ask us to put it on that basis when you know nothing about it?

Sidney M. Glazer:

I’m not — I’m just — I’m not asking you.

I’m just saying what the practice is.

This record does not have any indication as to when the probation report was submitted to the Court, none whatsoever.

Thurgood Marshall:

Don’t you agree that not only is the rule that it shouldn’t be given to the judge until after the guilt has been determined, but also didn’t it assume that the judge is going to read it, number one, two, give it this careful consideration, and, three, to take mature time to think it over, even if the record shows the man is guilty as all, get out?

Isn’t that why we have a probation report?

Sidney M. Glazer:

Well–

Thurgood Marshall:

Or is it your position that the judge is given a probation report and he just scans it?

Sidney M. Glazer:

Well —

Thurgood Marshall:

Now, which is your position?

Sidney M. Glazer:

My position is that whether a judge has a probation report or not is optional.

A judge that the —

Thurgood Marshall:

I — in my case, I’m talking about where a judge gets a probation report.

There’s no question in there that he had one.

Sidney M. Glazer:

Right, correct that he had one.

Thurgood Marshall:

And he — do you agree with me that he should’ve considered it, thought it over after having carefully read it?

And, before you said he carefully read it, I assume that would take more than six minutes.

Sidney M. Glazer:

Well, it seems to me that the judge have — the moderate time a judge spend on a probation report varies with the individual case.

If he has a case of a first offender or where there’s a — where he has an option of putting a first offender on probation, I’d say he should spend a lot of time on the probation report, perhaps ask the probation off —

Thurgood Marshall:

But if he has a crime where all the witnesses are on one side and he doesn’t take the stand, I gather you don’t think there’s a need for probation to put it on.

Sidney M. Glazer:

Well, I don’t — I think, in this case, where he —

Thurgood Marshall:

You didn’t need one.

Sidney M. Glazer:

In this case, there would be no need for a probation report because he did not have any option as to what sentence to impose.

This is a clear case where probation should have been denied.

I can’t conceive the judge placing a man on probation who, shortly after — shortly before this crime was committed, he had been released from a prior institution and had violated a parole previously.

Thurgood Marshall:

Well, why did he read it?

Sidney M. Glazer:

What?

Thurgood Marshall:

Why did he read it?

If he didn’t need to read it, why did he waste his time?

Sidney M. Glazer:

Well, I would think that one thing he’d be interested is whether the probation officer’s can — recommendation agrees with his.

If the probation officer’s recommendation agrees with his impression of the case, then I don’t think he has to scan every line and carefully read each word.

I think the judge properly, based on the evidence in this case and the — just what he read in open Court about defendant’s past history, that was enough.

Thurgood Marshall:

He had to do it that day, he couldn’t have thought it over that night and sentence him the next day, could he?

Sidney M. Glazer:

Well —

Thurgood Marshall:

You got to be certain it’s that day within six minutes.

Sidney M. Glazer:

I don’t see any virtue of delaying the sentencing process.

If — once — if the judge is clear, the judge is clear that this man rob the postal station with a deadly weapon and he’s been out on bond before, seems to me that the — and if he doesn’t sentence him, he’ll remain out on bond, it seems to me that it’s very reasonable for the judge to sentence him on the spot, and there’s no reason for the delay.

Earl Warren:

Well, Mr. Glazer, let me ask you this.

Assuming that the Court was of the opinion that the judge had this before the verdict was announced.

That would be a clear violation of the rule, would it not?

Sidney M. Glazer:

Clearly.

Earl Warren:

Right.

Now, in those circumstances, would we — would this man be entitled to any remedy at all?

Sidney M. Glazer:

I would say not in this case for this reason.

Where it apparently appears from the record, as it does in this case, that neither defendant’s trial, the determination of his guilt, the rulings of the judge, or the sentence were affected in any way by the judge obtaining the report prior to verdict that there’s no reason to give him a new trial.

The reason I say that —

Earl Warren:

Your belief is that even though the judge has clearly violated the rule, that it is still incumbent on the defendant to establish that he was prejudiced thereby.

Sidney M. Glazer:

No, we — no, I’d say the government will take the burden of showing lack of prejudice and I say, in this case, lack of prejudice appears beyond the reasonable doubt.

An examination of the probation report and the psychiatric report shows that the probation report is derived principally from the psychiatric report.

So, if the judge, the judge who was required to examine the psychiatric report prior to trial, he even may have had the psychiatric report in front of him during the course of the trial.

Earl Warren:

But do you concede then that in a situation where the judge does violate the rule that it’s incumbent upon the — upon the government to establish there was no prejudice to him?

Sidney M. Glazer:

Yes.

Sidney M. Glazer:

We will accept that.

We’ll accept that, but — we’ll accept that rule that the government should have the burden of showing lack of prejudice.

And, we say, in this case, because of the psychiatric report, lack of prejudice is clear beyond any doubt.

Hugo L. Black:

Well, also, does the record show that he was prejudice, the judge was prejudice?

Sidney M. Glazer:

No, the record doesn’t show as the —

Hugo L. Black:

Is there any indication that he was prejudice?

Sidney M. Glazer:

No.

Hugo L. Black:

Is there anything in the rule that Congress considered to have a growing effect?

That —

Sidney M. Glazer:

The —

Hugo L. Black:

Is there anything in the rule, written in the rule, that Congress consider to have growing effect which says or indicates to anybody that a failure to read — to follow that rule must always result automatically in reversing the a case of a man where all the evidence that was offered shows he’s guilty?

Sidney M. Glazer:

No.

Earl Warren:

How could the defendant show prejudice if he is denied an opportunity to see the report?

Sidney M. Glazer:

The defendant wasn’t denied an opportunity to receive the report.

Earl Warren:

Well, he’s always denied it.

Sidney M. Glazer:

No.

The rule was changed in 1966.

The rule was changed in 1966 which — and it provides now, the Court, before imposing sentence, may disclose to the defendant or his counsel all or part of the material contained in the presentence investigation.

And, I say, if a defendant —

Earl Warren:

Why didn’t he get it here?

Sidney M. Glazer:

He didn’t ask for it, Your Honor.

Earl Warren:

I thought he did.

Sidney M. Glazer:

No, he never asked the district judge to see all or any part of the probation —

Abe Fortas:

“May” doesn’t mean “must” as it choose there, does it?

Sidney M. Glazer:

It says “may.”

Abe Fortas:

Yes, and “may” means “may.”

Sidney M. Glazer:

“May,” right.

That’s discretionary.

Abe Fortas:

The Court has discretion.

Sidney M. Glazer:

Right, and the reason the Court has discretion is there are certain situations where there may be confidential information in the probation report, for example —

Abe Fortas:

Now, are you saying to me that all federal judges disclose presentence investigatory reports except where the specific report has confidential information?

Sidney M. Glazer:

No.

Abe Fortas:

I hope you wouldn’t say that.

Sidney M. Glazer:

No, I’m not saying that.

In fact, that’s been a great dispute.

No.

I, in my own opinion, in the absence of confidential information in the report such as from a man’s employer or some sort of informant are from a social service agency, I think that the report should be disclosed.

But, the Rules Committee didn’t go that far and they placed it in the discretion of the district judge and some judge disclosed it and others don’t.

Earl Warren:

I thought, Mr. Glazer, that when petitioner’s counsel requested to be released on bond for a short period so that he could visit his family, and that was denied, then petitioner’s counsel asked for a presentence report.

Sidney M. Glazer:

No, he said “I would like to ask that a presentence investigation be made.”

He didn’t ask to see the report.

He asked the Court for — that the presentence investigation be made.

At that point, the —

Earl Warren:

He wanted to see it.

Sidney M. Glazer:

It — to me, that’s the impression I have is he wanted the probation officer to conduct a presentence investigation.

He didn’t ask the Court to show him —

Abe Fortas:

You think he should’ve said that “if a presentence investigation report has been made, I’d like to see it,” even though it’s quite obvious that he didn’t know that a presentence investigation report had been made.

Sidney M. Glazer:

He could’ve said that, right, and, apparently, it —

Abe Fortas:

I think that’s what he had to say.

Sidney M. Glazer:

Apparently, I assume that he assumed that he didn’t realize that a report had — an investigation had commenced.

The petitioner’s appendix, page 7, it clearly shows what happened here.

Mr. Richards: “Your Honor, I would like to ask that a presentence be made of –“

The Court interrupting: “A presentence investigation has been made and it is before me now and I have read it.”

It says it shows it direct.

He makes a — reads briefly from it in one continuing sentence.

And, in three paragraphs, he goes ahead and states briefly what the presentence report says in part and then says “it will be the judgment of this Court that this defendant be sentenced to the mandatory 25 years custody to the martial.”

The petitioner was not given the right of allocution after the petitioner was informed that a presentence had been made or that the record was before the Court.

Hugo L. Black:

Well, where were the defendant and his lawyer at the time the judge told them there had been mandate and he read it?

Sidney M. Glazer:

As I just —

Hugo L. Black:

Where were the defendant and his lawyer?

Sidney M. Glazer:

The defense counsel stated, “Your Honor, I would like to ask that a presentence investigation be made of — “He was interrupted in the middle of his motion, his request.”

But then, the Court stated that there one had — that one had been made —

Hugo L. Black:

But that answered that part of his statement.

Sidney M. Glazer:

That’s correct.

Hugo L. Black:

And what did the defendant or his lawyer say?

Sidney M. Glazer:

The defendant or his lawyer wasn’t given the chance to say anything.

The Court said that there had been —

Hugo L. Black:

You mean he cut him off?

Sidney M. Glazer:

Yes, he cut him off.

Hugo L. Black:

They couldn’t talk?

Sidney M. Glazer:

The —

Hugo L. Black:

Were they standing there before him?

Sidney M. Glazer:

The Court stated —

Hugo L. Black:

Were you his lawyer?

Sidney M. Glazer:

Yes.

Hugo L. Black:

Were you cut off in talk?

Sidney M. Glazer:

Yes, because he had stated it was —

Thurgood Marshall:

Well, where exactly in here, he first —

Sidney M. Glazer:

Page 7 of the appendix.

Thurgood Marshall:

Yes, but he first asked you what did you have to say.

“Now, does a defendant or his counsel have anything that they wish to say before sentence is imposed?”

On page 6.

Sidney M. Glazer:

That’s correct.

Thurgood Marshall:

And you did speak.

Sidney M. Glazer:

I —

Thurgood Marshall:

And then the Court turned to Mr. Gregg, and Mr. Gregg spoke.

Sidney M. Glazer:

That’s correct.

Thurgood Marshall:

Right?

Sidney M. Glazer:

That’s correct.

Thurgood Marshall:

So, where were you cut off?

Sidney M. Glazer:

When I find out that a presentence investigation had been made, that the Court had read it, and then the Court pronounced sentence.

Thurgood Marshall:

But you — I don’t see where you were cut off.

Sidney M. Glazer:

“Custody of the martial.”

Thurgood Marshall:

That cut you off.

Sidney M. Glazer:

Maybe if —

Thurgood Marshall:

I see.

Hugo L. Black:

You mean that if you — if you were to add more to read that — wanted to see that thing, you wouldn’t have asked him?

Sidney M. Glazer:

At this time, we were so surprised —

Hugo L. Black:

Well, why wouldn’t you?

Would you let him cut you off that quickly?

Sidney M. Glazer:

We were so surprised that a presentence investigation had been made —

Hugo L. Black:

Well, that’s right, but did you ask him to see it?

Why didn’t you ask him to see it?

Sidney M. Glazer:

Because the —

Earl Warren:

Maybe the last paragraph of the colloquy would clear that up.

Hugo L. Black:

I’ve just read it.

It didn’t clear it up to me.

Earl Warren:

Mr. Richards: “Your Honor, I would like to ask that a presentence investigation be made of –” and then the Court interrupting, “a presentence investigation has been made.

It is before me now, and I’ve read it.

It shows the juvenile record.

It shows that, in 1960, this defendant stole an automobile in violation of the Tire Act, was given indeterminate youth commitment sentence, his was paroled in 1965, he was returned — no, he was paroled in 1962, returned as a parole violator in 1965, and was not released full time until May of last year.

I am also informed that he was convicted of robbery in Yuma, Arizona and given from 7-10 years.

Several warrants are now pending against him for robbery of which he is charged.

It will be the judgment of this Court that this defendant be sentenced of the mandatory 25 years, custody of the martial.”

To me, that’s plain interruption and a lack of opportunity for the counsel even to answer the Court because when he said “custody of the martial,” it was all over.

Hugo L. Black:

Do you believe that a lawyer who represents his client from the beginning to the end could be stopped from talking by what was said there?

Sidney M. Glazer:

At this time —

Hugo L. Black:

Would you?

Sidney M. Glazer:

No.

Earl Warren:

He was the lawyer.

Hugo L. Black:

Would you stop from talking with what was —

Sidney M. Glazer:

It certainly was not, except the defendant —

Hugo L. Black:

Did you want to see it?

Sidney M. Glazer:

Did I want to see the presentence investigation?

Hugo L. Black:

Yes.

Sidney M. Glazer:

At that time, no.

The defendant turned, walked away in the custody of the martial.

Earl Warren:

You mean after this colloquy was over?

Sidney M. Glazer:

Yes.

The defendant — the marital stepped forward.

The defendant was taken from the courtroom immediately.

Then, we were later brought back and he was advised of his appellate rights some minutes later, 10-15 minutes later, after I had left to get my car started from the parking lot.

Then, we were brought back in the courtroom and advised of the appellate rights that the petitioner had.

Byron R. White:

Well, what were you going to say that you didn’t get to say?

Sidney M. Glazer:

At that time, I had nothing to say, Your Honor.

Byron R. White:

Well, no.

When the judge interrupted you there when you asked a presentence report be made, what were you going to say that you didn’t get to say?

Sidney M. Glazer:

I was requesting that a presentence investigation be made.

Mr. Gregg — this was —

Potter Stewart:

That’s something —

Sidney M. Glazer:

This was all about —

Potter Stewart:

That’s something which you sought would take a little time and the sentence would be put off until it was completed.

That’s what you were after, weren’t you?

Sidney M. Glazer:

That’s correct, and I was —

Potter Stewart:

And said of which you discovered, I gather that it’s something you didn’t know, that it’d already been done so you couldn’t get a delay in sentence while pre-investigation.

Sidney M. Glazer:

That’s correct.

I was not going to ask that the report be destroyed —

Hugo L. Black:

Are you sure you’re not asking a leading question instead of stating what you thought?

Sidney M. Glazer:

No, Your Honor, I believe I am.

Thank you.

William J. Brennan, Jr.:

Are you leading question or not?

Sidney M. Glazer:

At this time, I was not going to ask.

I was only asking that a presentence investigation be made and I was not going to ask that it be disclosed to the petitioner or his counsel.

Thank you.

Earl Warren:

Very well.