Hamilton v. Alabama

PETITIONER:Hamilton
RESPONDENT:Alabama
LOCATION:Vilage of Kake

DOCKET NO.: 32
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 368 US 52 (1961)
ARGUED: Oct 17, 1961
DECIDED: Nov 13, 1961

Facts of the case

Question

Audio Transcription for Oral Argument – October 17, 1961 in Hamilton v. Alabama

Earl Warren:

Number 32, Charles Clarence Hamilton, Petitioner, versus Alabama.

Mrs. Motley.

Constance B. Motley:

Mr. Chief Justice, may it please the Court.

This case is here pursuant to the provisions of Title 28, United States Code Section 13 — Section 1257 (3), petitioner having asserted below in here rights secured by the constitution of the United States.

The rights asserted below and here are rights guaranteed by the Due Process Clause of the Fourteenth Amendment to the Constitution specifically the unqualified right to counsel in every stage of the capital case and the right to a trial on a capital charge which afforded the petitioner a fair hearing.

Now, this case is here for the second time.

Petitioner first sought to have this Court review his case during the October 1959 term when he petitioned this Court to grant a writ of certiorari to review the judgment of the Supreme Court of Alabama affirming his conviction on a charge of burglary with intent to ravish for which he had been sentenced to death.

In that petition, the petitioner claimed, as he now claims, that he had been denied due process of law in that he had not had counsel at the time of arraignment.

And in that he was denied the fundamentals of a fair trial.

On his appeal from his conviction to the Supreme Court of Alabama, he made this same claim.

Now with respect to the first claims, the Supreme Court of Alabama ruled that it had no quarrel with the petitioner’s claims right to counsel in a capital case where the accused is unable to afford counsel and the petitioner’s claim of right to counsel at the time of arraignment.

But the court ruled that these principles were without application to the case before it because the record on its face read that the petitioner was represented by counsel at the time of the arraignment.

Petitioner sought to prove by reference to a certified copy of the bench notes of the trial judge that he had not in fact then represented by a counsel at the time of his arraignment.

But the Supreme Court of Alabama ruled that the state law precluded impeachment of the minute entry of record which showed that counsel was present at the time of arraignment and at the time of trial.

In his October petition to this Court from that ruling of the Supreme Court of Alabama, petitioner asked this Court to find as a fact that he did not have counsel at the time of arraignment, that this deprived him of due process of law, and that the conduct of the trial in view of the representations of this petitioner by his court-appointed counsel among other things did not make due process requirements.

Now, in opposition to that first petition for certiorari in 1959, the State of Alabama filed a brief in opposition thereto.

And on pages five and six of that brief, the state said this, “The burden is not on the State of Alabama to explain the fancy inconsistency as to why the minute entry of the record shows that the defendant did have counsel at his arraignment and yet his trial counsel was apparently appointed three days later.”

Actually, the counsel in the particular case have appointed quite some time prior to the official judgment entry to defend the petitioner on a previous indictment and remained assigned as counsel to the defendant throughout and including the day of arraignment on the second indictment.

The two entries of judgment are not in conflict and the statement by the petitioner that the defendant was deprived of counsel at the time of his arraignment is pure conjecture on the part of the petitioner’s counsel.

Then Alabama pointed out that however, petitioner still had available to him another remedy to attack the judgment entry in this case with extrinsic matter.

That method it said was by writ of error coram nobis.

This Court refused to review that decision of the Supreme Court of Alabama affirming his conviction.

Now after that, the petitioner then filed in the Supreme Court of Alabama a petition for leave to file a writ of error coram nobis in the trial court.

In that petition he alleged that he had been indicted on November 9th, 1956 for the crime of burglary in the nighttime with intent to steal.

Arraigned on this charge on January 4th, 1957 at which time his counsel Mr. Mayfield was appointed and entered a plea of not guilty.

Trial was set for January 14th, 1957 but was passed four times until April 24th, 1957 when the case was now crossed on recommendation of the Solicitor.

Now in this petition for leave to file a writ of error coram nobis, petitioner also pointed out that on February 12, 1957 before the first indictment was nolle pros, he was indicted the second time by the grand jury.

This time he was indicted for burglary with intent to steal in one count and burglary with intent to ravish.

He was arraigned on this second indictment on March 1st, 1957 at which time he again pleaded not guilty but this time without the aid, advice or representation of counsel.

Counsel is not appointed for him he alleged until March 4th, 1957.

Constance B. Motley:

Now this allegation was supported by the affidavit of the petitioner’s trial counsel which was attached to his petition in which he stated that to the best of his knowledge, information and belief, he was not present at the arraignment on March 1st and that he did not advise or consult with the defendant.

In addition to the affidavit which was submitted by the petitioner (Inaudible) counsel, the State of Alabama submitted an affidavit from the trial counsel in which he again said that he had been appointed to represent the petitioner with respect to his first indictment, later nolle pros, and that on March 4th, 1957, he was appointed to represent petitioner with respect to the second indictment that is three days after the second arraignment.

That he knew of the indictment prior to its being returned by the grand jury, that he was aware of the second indictment and arraignment which he stated occurred on March 1st, 1957 that he considered himself as representing the defendant.

And that the arraignment was done with his knowledge and consent although he was not present.

He alleged that he would not have entered any different plea from the plea of guilty entered by petitioner had he been at the arraignment, and finally he alleged that he considered the arraignment a mere formality, since the same plea would have been entered which was entered on the first arraignment, and that this was his reason for not representing petitioner on March 1st on his second arraignment.

Now in addition to these two affidavits, there was a third affidavit.

This one was filed by the deputy second Solicitor who prosecuted the case in which he alleged that he had spoken to the Mr. Mayfield, the petitioner’s court-appointed counsel informing him that there no indictment was being procured and later told him that the new two count indictments had been returned and that the petitioner would be arraigned.

However, none of these affidavits indicates whether Mr. Mayfield actually sought the second indictment with the more serious crime.

The prosecutor alleged that the —

Potter Stewart:

Is it a more serious crime Miss Motley?

Constance B. Motley:

Well —

Potter Stewart:

Under state law?

Constance B. Motley:

That is —

Potter Stewart:

It’s a more —

Constance B. Motley:

Well, more reprehensible —

Potter Stewart:

— (Voice Overlap) perhaps with —

Constance B. Motley:

— sort of a crime.

Potter Stewart:

No more serious penalty —

Constance B. Motley:

That’s right.

Potter Stewart:

— at least theoretically as to both.

Constance B. Motley:

That’s right.

Earl Warren:

Do they have the death penalty for burglary with intent to steal?

Constance B. Motley:

Yes, sir, that’s right.

The prosecutor alleged that the appointment of the lawyer on March 4th was necessary if —

(Inaudible)

Constance B. Motley:

That is right.

(Inaudible) with the intent to steal?

Constance B. Motley:

Well, the statute says with intent to steal or intent to commit a felony.

Now in this indictment he was charged with intent to ravish which is nowhere defined on the statute.

But the statute does of course forbid rape but he was not charged in the words of the statute with intent — to commit a felony.

Constance B. Motley:

He was charged with intent to ravish.

Charles E. Whittaker:

One can be sentenced to death in this state simply for a burglary —

Constance B. Motley:

With intent —

Charles E. Whittaker:

— with intent to —

Constance B. Motley:

— to steal.

Charles E. Whittaker:

— to commit petty larceny?

Constance B. Motley:

With intent to commit a felony and with intent to steal.

Now as I — I’m sorry.

Was that all your — as I started to say, the state said that the reason for the appointment on March 4th was necessary in order to ensure that this lawyer get his fee of $50 or $100, and that the record had to show it so that he could be paid when the trial was over, and this was the reason for the subsequent appointment.

Now upon considering petitioner’s application in which all of these facts were alleged for leave to file a writ of error coram nobis, the Supreme Court of Alabama held that the petitioner had followed the proper procedure.

It also found as a fact that petitioner was not represented by counsel at time of arraignment.

It ruled that it was not bound by the minute entries that had been on the appeal and so they could find this as a fact.

The Alabama Court then held that the law of the state placed upon the trial court the obligation to see that the petitioner here had counsel because this was a capital offense and that he had such counsel before he was arraigned and called upon to plea.

It pointed out that there was no decision in Alabama expressly so ruling but that this had been the almost uniform practice of the Circuit Courts of Alabama for many years and that the very purpose of the statute would seem to dictate such action.

It also held that the petitioner should have been represented by counsel at arraignment, but refused to grant the petition on the ground that this fact standing alone was not prima facie just ground for granting the thing.

The Alabama Court acknowledged this Court’s decision of course in Powell against Alabama, 287 U.S. 45 and held that the right to counsel is not a right confined to representation during the trial on the merits citing this Court’s decision in Moore against Michigan, that’s 355 U.S. 155.

However, it ruled that in this case, there was no denial of due process since the petitioner had failed to show that he was not prejudiced by the absence of counsel at his arraignment.

John M. Harlan II:

Could I make you — ask you a question, did the Supreme Court of Alabama make any finding with respect to the truth of Mr. Mayfield’s statement that he considered himself to be this man’s lawyer shortly after the second indictment was found though he had been formally reappointed so to speak?

Constance B. Motley:

No.I don’t believe it did.

I think the only thing it found as the fact was that he was not present on March 1st, 1957 when the man was arraigned on the second indictment.

It referred to his affidavit and said that he pointed out that he would not have entered any different plea had he been present at the time as I recall but I don’t recall any specific finding as you suggest.

The Alabama Court ruled that the petitioner’s counsel had been appointed three days after arraignment whose competence was not questioned and who was searched in an affidavit as I’ve just said that he would not have entered a different plea.

Finally, that court ruled that there is no —

William J. Brennan, Jr.:

Excuse me, Mrs. Motley —

Constance B. Motley:

— suggestion.

William J. Brennan, Jr.:

— what was the plea on the second time, it was also not guilty?

Constance B. Motley:

Not guilty, that’s right.

Finally, that Court ruled that there is no suggestion that the guilty plea interposed an arraignment in absence of counsel prevented the filing of any other plea or motion.

Now this Court — this petitioner now asked this Court to review this judgment of the Supreme Court of Alabama.

The record filed in this case with this new petitioner causes supplemented by the record which was filed here in 1959 with the first petition for certiorari.

Constance B. Motley:

And petitioner asked this Court to take judicial notice of that record as the Supreme Court of Alabama might have done upon its review of petitioner’s request for leave to file a writ of error coram nobis.

Now this record shows that the petitioner, an indigent Negro was convicted by the courts of Alabama of burglary with intent to ravish and sentenced to death on April 23rd, 1957.

Now the testimony on the trial I think is far from clear but it shows that the petitioner was convicted on the night of October 12th, 1956 or the early morning hours of October 13th, 1956.

At that time, petitioner was found in the bedroom of an elderly white woman in Ensley, Alabama by the woman’s grandson by marriage who live in the same house who testified that petitioner was indecently exposed when found.

The petitioner testified that he was summoned into the house by the woman who gave him the impression that she had been robbed and sought help.

He testified that he could not understand her because he spoke with a foreign accent, and that whenever he attempted to leave, she prevented him because she insisted on his helping her, whatever her plight might have been.

The grandchildren called the police who arrested the petitioner.

There was some testimony concerning the lock on the door of the room which petitioner was found — in which petitioner was found, a door which led from the porch into the room.

But it was not demonstrated that this lock had been broken.

It appears that while the windows and doors had been secured and so forth, the door in the porch was open.

In addition, although there was testimony that the petitioner was indecently exposed, Mrs. Giangrosso, the elderly woman who was the alleged intended victim of the rape did not testify.

Petitioner’s counsel called her for testimony during the trial but since she had not been subpoenaed she did not appear and no effort was made to secure her attendance.

There was no evidence that there was any rape, violence or physical injury at any time which occurred to alleged intended victim or anyone else, neither was there evidence that petitioner had any weapons, burglary tools or the like.

Now, the trial of this capital case have started at 11 o’clock in the morning and terminated at 4:10 in the afternoon with an hour and 40 minutes for lunch.

When the case came on for trial the petitioner got up and said to the trial court, “This is not my lawyer, he was appointed by the Court.”

The trial counsel then got up and asked to withdraw from the case.

All of these occurred in the presence of the jury because petitioner had indicated his dissatisfaction with his counsel, the Court didn’t inquire as to the basis of it.

He merely asked him if he had other counsels and he said no.

The Court then invited the petitioner to participate in his own defense and said that he could ask questions after the counsel had completed examinations.

And during the course of the trial, the petitioner made a bungling, inept effort to defend himself.

He interrupted the Court and argued with witnesses for which he was reprimanded by the Court throughout the trial in the presence of the jury.

The trial concluded with a lengthy charge to the jury which nowhere defined intent to ravish and to which no objections were taken by the trial counsel.

Petitioner himself argued to the jury but as he said in his own words, he did not understand the charge.

The verdict of course was guilty and the petitioner was sentenced to death.

Upon this review, petitioner claims first that his right to counsel in a capital case may not be qualified as the Supreme Court of Alabama has qualified it, by superimposing upon this right a requirement that he shows some qualitative disadvantage flowing from the denial of the right to counsel at time of arraignment.

Petitioner also claims that even assuming for the purposes of this argument that a showing of disadvantage is required, the record in this case demonstrates that the petitioner was denied a fair hearing.

John M. Harlan II:

Of course if the Mayfield affidavit is taken as true, he did have counsel at the time of the arraignment but he didn’t have counsel who, for one reason or another, showed up at the time of the arraignment?

Constance B. Motley:

Mr. Mayfield —

John M. Harlan II:

What I’m trying to get at is the real issue here in this case with their due process, the Alabama Court says, as a matter of law, he’s entitled to have counsel at the time of arraignment.

Constance B. Motley:

That’s right.

John M. Harlan II:

And let’s assume that’s the federal law too, presumingly.

Is what you’ve got here a due process claim that says that at least as to court-appointed counsel, the due process requires that the state not proceed without requiring counsel to be present at the arraignment.

Is that the real issue in this case?

Constance B. Motley:

Well, I would like to clarify something, Your Honor and that is that Mr. Mayfield was not actually appointed until after the petitioner had been arraigned because —

John M. Harlan II:

Formally?

Constance B. Motley:

He says — that’s right.

He says in his affidavit that he was not present, that he had not consulted —

John M. Harlan II:

Right.

Constance B. Motley:

— with him prior to that second arraignment, so that he was not his lawyer, we’d say, at the time of the arraignment.

He was his lawyer on the trial and he was appointed after the arraignment.

And our claim is that he had — this petitioner had an absolute right to counsel at the time of arraignment, and that that abridgement of that right denies him due process of law.

John M. Harlan II:

But Mayfield also says unless I’m mistaken, understanding of his affidavit, that shortly after the indictment of February, the second indictment, the ravishing, he was told by the district attorney that the indictment had been found that he considered himself this man’s lawyer.

But that for reasons of his own, whatever they were, he just didn’t show up at the arraignment.

Constance B. Motley:

Yes, he said he considered the mere formality and that he wouldn’t have entered any other plea of —

John M. Harlan II:

Well, if you’d — if you’d take those facts as established, then what you have got here as a due process claim it seems to me, is whether or not even though he had a lawyer in a nominal sense, the payor of the lawyer who appear who was such ineffective representation and denied due process, or that as a matter of law at least as to court-appointed counsel, the state cannot proceed unless that lawyer is required to show up.

Constance B. Motley:

Yes, I think the latter, Your Honor, is certainly our claim that he —

John M. Harlan II:

So, it isn’t the conventional right to counsel case.

That’s what I’m trying to get at.

Potter Stewart:

Well, it’s the right to the presence of counsel.

Constance B. Motley:

That’s right.

John M. Harlan II:

Right to the presence of counsel.

Constance B. Motley:

Yes.

At the time of the arraignment, let’s say a right to counsel in a capital case at every stage of the proceedings and at this crucial stage, we say, he was not represented by a counsel and that fact in and of itself denied him due process of law.

Earl Warren:

May I ask this, the first count — first indictment of course was a one-count indictment for —

Constance B. Motley:

That’s right.

Earl Warren:

— for burglary with intent to steal.

Constance B. Motley:

Yes, sir.

Earl Warren:

Now what was the second indictment, was that the one or a two-count indictment?

Constance B. Motley:

That was two-count, burglary with intent to steal and burglary with intent to ravish.

Earl Warren:

Yes.

Earl Warren:

May I return to the facts just a moment and ask you after this man was detected in the house there by the grandchildren, I think you say.

Constance B. Motley:

That’s right.

Earl Warren:

Did he attempt to — did he attempt to escape or did he stay there until the police came after —

Constance B. Motley:

Yes.

Earl Warren:

— they had notified the police?

Constance B. Motley:

Yes, he did.

The testimony was the grandson then went back into his bedroom and came back with a gun and then he gave it to his wife while he went to get the police and the man stayed there all of that time and waited until the police came back.

Earl Warren:

Yes.

Constance B. Motley:

And that he was there when the police came.

Earl Warren:

Yes.

Now, there was a suggestion somewhere along the line of insanity in the case, that was at the end, was it not, on the new trial or at some stage of them?

Constance B. Motley:

Well, the petitioner’s conduct at the trial seem to evidenced that he — his behavior was irrational and what we have said in here was that at the time of arraignment was the time to answer a plea of not only not guilty but not guilty by reason of insanity and not being entered at that time, he lost an absolute right to enter it, and it then became a matter of discretion for the trial court.

Earl Warren:

Yes.

Felix Frankfurter:

Mrs. Motley, did not — do I understand you in your reply to Justice Harlan’s question to imply that there is no other question before this Court but the constitutional significance to be derived from Mr. Mayfield or to be based on Mr. Mayfield’s own affidavit, namely, that although he was aware, I don’t know how he — if that’s what they — as the Attorney General would indicate, although Mr. Mayfield said he knew of the indictment before it was handed down by the grand jury, that after it was handed down, he knew of his place, that he knew the effect — he was aware of the indictment and the arraignment thereon, and that he was aware of the indictment, meaning he — I should think a fair reading means not merely that he knew there was an indictment, that he knew that there was — what was in it, that’s subject to controversy, I suppose.

That he knew all the circumstances of the reindictment, the prospective arraignment that he purposely abstained from being present at the arraignment for whatever reasons.

That the arraignment came and the plea of not guilty was made and he swear that he would’ve made the same plea.

Now, there’s nothing else in the case, is there, Mrs. Motley than what consequences — constitutional consequences are to be drawn from those circumstances?

Constance B. Motley:

Well, I —

Felix Frankfurter:

Anything else?

Constance B. Motley:

Our second claim is that even assuming for the purposes of this argument, that the right to counsel in a capital case is qualified as the Alabama Court says it is, that you might (Voice Overlap) —

Felix Frankfurter:

I don’t need to imply a view on that subject, of course.

Constance B. Motley:

No, I’m just saying what our second claim is, that our second claim is — even if that’s true, what the Alabama court has held as to this right, this record shows that the petitioner did not get a fair hearing as contemplated by due process.

Earl Warren:

Well, Mrs. Motley —

Felix Frankfurter:

(Inaudible)

Earl Warren:

Oh, pardon me.

Felix Frankfurter:

Apart from the fact that Mr. Mayfield wasn’t present at the arraignment, in the plea?

Constance B. Motley:

Yes, yes.

Felix Frankfurter:

And would you mind just stating what the basis of that claim is?

Constance B. Motley:

Well —

Felix Frankfurter:

That’s a totally different claim, isn’t it?

Felix Frankfurter:

Or is it tied up with his non-appearance?

Constance B. Motley:

Well, it’s tied up when he’s not appearing.

But also at the second claim, in that we say that, look at the trial and look at the representation that this man had.

You say, Alabama argued that whatever went wrong at the arraignment, if he wasn’t there, it could have been cured at the trial.

But we say look at this trial and that nothing could’ve been cured at this trial because the trial collapsed into a complete shambles because the petitioner and his counsel were in conflict with each other, all in the presence of the jury.

The petitioner antagonized the court.

Felix Frankfurter:

That’s what I wanted to bring out.

Constance B. Motley:

Yes.

Felix Frankfurter:

That the impression that you — you didn’t mean to, I take it.

But I got the impression that you acceded to Justice Harlan’s suggestion, is that the issue before us in addition to that?

You say — you’re present answer says in effect, have had Mr. Mayfield been present, that he said not guilty for my client.

And that first point, that there’s no qualification to the duty to be present or to protect the right to be protected in being present, you say that the proceedings as such in their entirety —

Constance B. Motley:

Yes.

Felix Frankfurter:

— violates due process in the — perhaps, procedure and sentencing, isn’t that a fair trial?

Constance B. Motley:

Yes.

Felix Frankfurter:

Alright, I understand.

Earl Warren:

Well, Mrs. Motley, in addition to that affidavit that you’ve been speaking about, aren’t we also entitled to take into consideration and shouldn’t we the fact that this man was not appointed by the court for this second case until three days after the indictment?

Constance B. Motley:

Yes.

That’s a fact.

Earl Warren:

But isn’t that — isn’t that to be taken at least as much into consideration as to the opinion of Mr. — whatever his name was —

Constance B. Motley:

Mayfield.

Earl Warren:

— as to whether he might be the lawyer when he didn’t even think enough of the case to show up.

Constance B. Motley:

Yes, Your Honor.

Earl Warren:

So we — that is — you don’t —

Constance B. Motley:

Yes.

Earl Warren:

— take that out of the case, do you?

Constance B. Motley:

Oh, no.

No, Your Honor.

This — our first contention is that this man was without counsel —

Earl Warren:

Yes.

Constance B. Motley:

— at the time he was arraigned.

Earl Warren:

Yes.

Constance B. Motley:

His counsel was not appointed until three days after arraignment.

Earl Warren:

Right.

Constance B. Motley:

We say that arraignment is such a crucial stage in a capital proceeding, that for this man to have been without counsel, was in and of itself the denial of due process.

Felix Frankfurter:

No matter what the reason is for —

Constance B. Motley:

That’s right.

Felix Frankfurter:

— not hearing?

Constance B. Motley:

That’s right.

His reason —

Felix Frankfurter:

But, were you —

Constance B. Motley:

— has nothing to do with it.

Felix Frankfurter:

Were you — are you suggesting to the court that you must drop down the assumption that this — this counsel was so callous, so indifferent, and that’s why he didn’t appear?

Constance B. Motley:

No.

We’re asking this Court to hold that the fact that he did not have counsel at the time —

Felix Frankfurter:

Alright.

Constance B. Motley:

— of arraignment was in and of itself a denial of due process because this is a capital case.

Felix Frankfurter:

I understand that.

But is it part of your case also, that there was in effect no representation of counsel to the Scottsboro cases, very different circumstance, in effect because in — because its — the counsel appointed was quite indifferent to his duty.

Constance B. Motley:

That’s right.

Felix Frankfurter:

You make that point?

Constance B. Motley:

Yes.

He was I think throughout the trial, its clear that he was indifferent to his duty here, that he didn’t represent this man as effectively as contemplated by this Court’s decision in Powell against Alabama.

He didn’t even call the alleged intended victim of this intent to ravish.

Felix Frankfurter:

To me, it makes a lot of difference in these cases where all the facts have to be taken into account.

Whether representation (Inaudible) — was ineffective because the man was ill-equipped to defend or whether the man was disregardful of his duty and was — the word I used was callous, do you say he was callous?

Constance B. Motley:

Yes.

Felix Frankfurter:

Alright.

Constance B. Motley:

I think so.

Felix Frankfurter:

I just want to know what you’re thinking.

Constance B. Motley:

Yes sir.

Earl Warren:

Mrs. Motley, in order that I might be oriented on it, do I understand there are two prongs to your argument about representation of counsel.

First, there was actually no counsel there to represent him and secondly, that he didn’t have any counsel in this case because he was not appointed by the court to represent the man in this case until three days after the arraignment?

Constance B. Motley:

That’s right.

Earl Warren:

Very well.

Constance B. Motley:

Now, as I’ve pointed out, the law in Alabama is clear that he had this right to counsel.

And that the right was qualified by Alabama by this ruling which it has made that in order to show a denial of due process under the Fourteenth Amendment, the petitioner was found to show prejudice to him from this fact.

Now, we say that the right to counsel in a capital case of this kind is so essential that it cannot be qualified as the Supreme Court of Alabama has qualified it.

In so ruling, the Supreme Court of Alabama relied on several lower, federal, and state court cases.

It also relied upon this Court’s decision in Canizio against New York, 327 U.S. 82, a noncapital case in which the defendant who plead guilty was not represented by counsel at the time of arraignment.

There this Court ruled that under the circumstances of that case, no denial of due process had been shown and then the Alabama Supreme Court relied on two other decisions of this Court, one, Gayes against New York, 332 U.S. 145, another noncapital case in which it was shown that the petitioner waived his right to counsel.

The same with the case of Quicksall against Michigan, 339 U.S.660 in a capital case on which Alabama relied.

But, there again, it was clear that the petitioner there had waived his right to counsel so that the Alabama Court did not have any decision of this Court on which to rely.

It relied upon cases of this Court which were either noncapital cases or cases at which the petitioner had actually waived his right to counsel.

Here of course, the petitioner was charged with a capital case and he certainly didn’t waive his right to counsel.

And so we say that in a capital case of this kind, at every stage, it is so essential to have a counsel that to deprive him of counsel at the time of arraignment is in itself a denial of due process.

As Mr. Justice Stewart said in the concurring opinion in Spano against New York, 360 U.S. 315, at page 327, a case involving coerced confession in which the defendant was without counsel at the time, he confessed following indictment.

Now, Mr. Justice Stewart said this, “Under our system of justice, an indictment is supposed to be followed by an arraignment and trial.

At every stage in those proceedings, the accused has an absolute right to a lawyer’s help if the case is one in which the death penalty may be imposed”, citing Powell against Alabama.

What this Court said in Von Moltke against Gillies, 332 U.S. 708, 723 is clearly applicable here.

Arraignment, this Court said is too important a step in a criminal proceeding to give such wholly inadequate representation.

Arraignment is considered so crucial as step in a criminal proceeding that in 19 states, the law provides for appointment of counsel for indigent defendants at arraignments in virtually all felony prosecution.

Now, in the appendix to appellee — to this petitioner’s brief, we have set forth all of the law of the various states on the right to counsel at time of arraignment.

Under Alabama law, arraignment is the time to enter a plea of not guilty by reason of insanity as we have pointed out.

And the failure to answer the plea at that time means that your right to do so is lost.

You may then make a motion which is then wholly within the discretion of the trial court and the Alabama Supreme Court has so ruled.

So that an arraignment —

Potter Stewart:

Didn’t the — didn’t the Alabama Court say in this or I’m mistaken that in this case, he could’ve made any alternative or additional plea subsequent to the indictment —

Constance B. Motley:

Yes.

He could have.

Potter Stewart:

— couldn’t be?

Constance B. Motley:

But you say it was not an absolute right.

He lost that because he didn’t make it at arraignment and he didn’t make it we say because he had no counsel.

He was not himself educated enough to make any such plea.

He didn’t know what could’ve been done except to plea guilty or not guilty.

Potter Stewart:

In that state, not guilty does not include not guilty by reason of insanity, is it?

Constance B. Motley:

That’s right, it does not.

Potter Stewart:

Especially —

Constance B. Motley:

It must be specially pleaded.

Potter Stewart:

(Voice Overlap) —

Constance B. Motley:

That’s right.

Earl Warren:

Is that the time at which the sufficiency of the indictment must be challenged?

Constance B. Motley:

Yes sir.

And it’s also the time under Section 279 of Title 15 Alabama Code, you must enter your plea in abatement before you plea to the indictment, and that of course as a practical matter is done at the time of arraignment.

Potter Stewart:

Excuse me, I didn’t mean to interrupt you, but you stated in your brief here somewhere that the indictment designated as the only victim of this offense is a man.

I don’t find the indictment in the set of record here, that it’s absent, perhaps, am I right?

Constance B. Motley:

The only person named in the indictment was Jacob C.Milko, this was the grandson.

And the — Mrs. Giangrosso, the elderly woman who was the alleged intended victim who never testified never even appeared at this trial was not even named in the indictment.

That’s what we meant (Voice Overlap) —

Potter Stewart:

Well, at least it would appear superficially that there might be some de — at least a defect in that indictment.

Constance B. Motley:

Oh yes, certainly.

Felix Frankfurter:

What is — what is the mail — what — what is the allegation with reference to the person who was named?

Constance B. Motley:

Well, the allegation is this — that in the night time with intent to steal, the petitioner, referring to the petitioner, did break into and entered the inhabitant dwelling house of Jacob C. Milko, a person lodged therein.

And then in this same thing, in the next paragraph, in the night time with intent to ravish did break in to and entered the inhabitant dwelling house of Jacob C. Milko, a person lodged therein.

They never even mentioned —

Felix Frankfurter:

Is that a — is that a vulnerable indictment?

Constance B. Motley:

I would think so, yes, under the —

Earl Warren:

You agree?

Constance B. Motley:

— Alabama law.

I’m sorry.

Earl Warren:

Well, recess now.

You may continue your argument.

Constance B. Motley:

Mr. Chief Justice, I’d like to reserve the remaining time for rebuttal.

Earl Warren:

You may.

Mr. Mentz.

George D. Mentz:

Mr. Chief Justice, Honorable Members of the Court.

Before I get into my regular presentation, Mr. Justice Whittaker has expressed some concern over the severity of our statute.

If I may, I’d like to read it to you sir.

It’s Title 14, Section 85 of our Code of 1940.

Any person who in the night time with intent to steal or to commit a felony breaks into and enters any inhabited dwelling, house, or any other house or building which is occupied by any person lodged therein — herein is guilty of burglary in the first degree and shall on conviction be punished at the discretion of the jury or by death or by imprisonment in the penitentiary for not less than ten years.

So I think the real essence of the severity of the punishment there is the violation of the sanctity of the home particularly at night, where a person is with — in a home which is inhabited.

Potter Stewart:

General Mentz.

George D. Mentz:

Yes.

Potter Stewart:

Before you leave that.

As I understand it, the petitioner here was convicted under count two of the indictment.

George D. Mentz:

That’s correct sir.

Potter Stewart:

And that was breaking and entering an inhabited dwelling in the night time for the — to ravish.

George D. Mentz:

That’s correct sir.

Potter Stewart:

Well now, is ravish — to ravish a felony under your Alabama law?

George D. Mentz:

Rape is, sir — yes sir.

Potter Stewart:

But —

George D. Mentz:

And our statute (Voice Overlap) —

Potter Stewart:

Your statute says — to steal or to commit a felony.

George D. Mentz:

Commit a felony.

Yes, as I —

Potter Stewart:

Ravish is not a felony, is it?

George D. Mentz:

Well, rape is a felony, Your Honor.

Potter Stewart:

I suppose there’s good many other felonies too, but is ravish mentioned as a felony?

George D. Mentz:

In that time, no sir.

Potter Stewart:

So it’s arguable that this indictment was technically defective, isn’t it at least?

George D. Mentz:

Sir, our indictments to have been — that has been accepted by the Supreme Court as an acceptable indictment under the statute.

(Inaudible)

George D. Mentz:

Sir, I think so.

Hugo L. Black:

Have they’ve been held synonymous by the court?

George D. Mentz:

Mr. Justice Black —

Hugo L. Black:

By this Court?

George D. Mentz:

— I can’t answer that, I don’t know.

Now, much has been said about the effectiveness of counsel and I can only urge the Court to read the record carefully and I think they will see that Mr. Mayfield was effective as counsel.

We say he recognized the fact that an attorney, be he court-appointed or employed, must do his utmost reply, but he can’t in a matter of factual evidence.

And —

Earl Warren:

He can show up in the arraignment, can he?

George D. Mentz:

Yes sir.

He can.

That of course we’ve — as has been pointed out, he was — he was appointed for the first arraignment — and however, he was not appointed for the second arraignment until three days after the arraignment.

Earl Warren:

Yes.

George D. Mentz:

I mean —

Earl Warren:

Well, then he was not — he was not the attorney for the man in this indictment.

George D. Mentz:

Well, that — that sir is — I can’t answer you yes or no because —

Earl Warren:

Why?

George D. Mentz:

— it’s a fringed area.

Well —

Earl Warren:

But we got to decide it one way or the other, either he was the man’s lawyer for this indictment or he wasn’t, which was it?

George D. Mentz:

Well sir, our Supreme Court has admitted that he was not the attorney at the second indictment.

Earl Warren:

Alright, if that — that’s your position here, that he was not the attorney for —

George D. Mentz:

That’s correct.

Earl Warren:

— for him at the — on the second indictment.

George D. Mentz:

That’s correct sir.

Earl Warren:

Well, I think that’s a fair — fair position to take.

George D. Mentz:

And still further with reference to the effectiveness of Mr. Mayfield now, I’m reading from the Supreme Court of Alabama when they affirmed the judgment of conviction.

And it says —

William O. Douglas:

What page are you reading from?

George D. Mentz:

Sir, I have to confessed, I’m reading from the brief, the petitioner’s brief, it’s page 8A.

William O. Douglas:

In 8A?

George D. Mentz:

Yes sir.

William O. Douglas:

Thank you.

George D. Mentz:

It’s down toward the bottom.

At most the statement made by the appellant indicated only that he did not approve the court-appointed attorney.

But present counsel insists that under these circumstances, representation could be nothing more than pro forma.

But in their brief, with commendable candor, they stated and thus quote, “We do not mean to reflect upon the capabilities of counsel representing the defendant.”

Hugo L. Black:

May I ask you Mr. Mentz, on the point that I was just disturbed perhaps, I think it’s rather important.

Is it a fact that we have to consider in this case on the opinions written by Judge Lawson that this man had no counsel that had been appointed for him when he was arraigned and that no counsel was appointed to represent him until three days later?

George D. Mentz:

Sir, that’s my understanding of the (Voice Overlap) —

Hugo L. Black:

That being the case, it’s not material, is it, what Mr. Mayfield would have done had he been counsel?

George D. Mentz:

I don’t think it is.

Hugo L. Black:

May I ask you just one other question for my own (Inaudible), is Mr. Mayfield still practicing in Birmingham?

George D. Mentz:

So far as I know he is Mr. Justice Black.

Hugo L. Black:

Was he related to Judge Mayfield?

George D. Mentz:

That, I don’t know, sir.

I really don’t know Mr. Clell Mayfield.

I knew Judge Mayfield’s son but I don’t know the other branches of the family.

Hugo L. Black:

Was this man from Tuscaloosa?

George D. Mentz:

I don’t know that sir.

He attended the University of Alabama, that’s all I can tell you and — but I — I don’t know where he was born.

I know when he was born but not where.

Hugo L. Black:

That has nothing to do with the case?

George D. Mentz:

No sir.

Hugo L. Black:

That wasn’t — that’s according to my own —

George D. Mentz:

As we understand this case, the primary question presented is whether or not denial of counsel at arraignment in a state capital case in and of itself violates due process.

Now, if the Court agrees with our contention that it does not, then the second question is whether the facts in this particular case present such a showing of fundamental unfairness as to warrant a determination that by — due process has been violated.

As to the first question, namely whether such denial per se violates due process, I think it is significant in Alabama, arraignment is merely a calling of the accused to the bar of the court, and reading or explaining the indictment to him, and demanding his plea.

Hugo L. Black:

May I ask you — I don’t want to interrupt you (Voice Overlap) —

George D. Mentz:

That’s alright, sir.

Hugo L. Black:

But I do want to ask you on that.

What does — what can a man waive by not raising a question, if he doesn’t raise it at arraignment?

George D. Mentz:

Sir, in practical effect, he doesn’t (Voice Overlap) —

Hugo L. Black:

Suppose he wanted to challenge — what is that?

George D. Mentz:

In practical effect, he does not waive anything.

Hugo L. Black:

Suppose he wanted to challenge the indictment with reference to the language of it or the composition of the grand jury that composed it on account of discrimination in drawing the grand jury?

George D. Mentz:

With the Court’s permission, he may raise those objections subsequent (Voice Overlap) —

Hugo L. Black:

Later, but he has to have the court’s permission.

George D. Mentz:

That is correct, sir.

Hugo L. Black:

So that up to that point, it certainly — it could be that necessity might arise in order for him to make objections to the indictment to its form, to its contents or to the impaneling of the grand jury.

George D. Mentz:

That is conceivable, yes sir.

Earl Warren:

And how about a plea of not guilty by reason of insanity, does that fall in the same category?

George D. Mentz:

Yes sir, it does.

Our statute provides that it shall be entered at arraignment.

However, our decisions, our court decisions have held that that does not peremptorily or absolutely bar such a plea from being entered subsequent to arraignment.

Hugo L. Black:

Discretionary.

George D. Mentz:

It is discretionary —

Earl Warren:

But it does bar his absolute right to enter it.

George D. Mentz:

Sir?

Earl Warren:

But it does bar his absolute right to have it entered.

George D. Mentz:

Yes sir.

Now, our statute does prescribe that an indigent charged with a capital offence shall have court-appointed counsel to represent him.

And our State Supreme Court recognizing that the right to representation by counsel is not a right limited to a trial on the merits stated that Hamilton should have been represented by counsel at this certain arraignment.

However, on his appeal, Hamilton ineptly attempted to dispute the minute entry of March the 1st and the judgment entry of April the 23rd, both of which showed that he was represented by counsel on his arraignment on March 1st.

He did this by offering his evidence only the judges’ bench notes and under our procedure that is not permissible.

Earl Warren:

He did that pro se?

George D. Mentz:

No sir.

Earl Warren:

Yes, (Voice Overlap) —

George D. Mentz:

No sir.

He was represented by — well, he was represented by —

Earl Warren:

Well, it doesn’t make any difference (Inaudible) represented.

George D. Mentz:

Well, I don’t know that the present attorneys here but the —

Earl Warren:

Yes.

It’s alright.

George D. Mentz:

Orzell Billingsley and Peter Hall represented him on that —

Earl Warren:

Yes.

George D. Mentz:

— proceeding.

And that was why his appeal failed and this Court denied certiorari when it was brought up here.

Now, his subsequent petition for coram nobis which was supported by competent evidence showing that Hamilton did not have counsel at arraignment failed because it did not allege or offer evidence showing that he was disadvantaged or prejudiced in anyway by such denial of representation.

Our courts have said that in the extraordinary writ of coram nobis that a mere naked allegation that a constitutional right has been invaded will not suffice.

And it simply followed a doctrine which was restated by this Court in Darcy versus Handy — well, and this is a very short quotation.

It is not asking too much that the burden of showing essential on fairness be sustained by him who claims such injustice and seeks to have the result set aside and that it be sustained not as a matter of speculation but as a demonstrable reality.

Felix Frankfurter:

There is a difference isn’t there between a general allegation about — I’ve been deprived of the constitutional right and setting forth facts in this case to be able to do your own acceptance of it, that he was not represented by counsel at arraignment, and then making the contention that as a matter of due process, that is an indispensible requisite.

George D. Mentz:

Yes, sir.

Felix Frankfurter:

It would be an indispensible requisite and he doesn’t have to show more.

George D. Mentz:

That’s correct.

Felix Frankfurter:

We’re here because that question is raised —

George D. Mentz:

That’s correct.

Felix Frankfurter:

— in that form.

George D. Mentz:

That’s correct.

Felix Frankfurter:

So, this isn’t nearly a question of — one of allegation, one of — this isn’t a pleading question here, is it?

George D. Mentz:

No, sir.

It isn’t a pleading question.

It’s not a technical pleading question but it — it does boil down to the question of whether the simple allegation of denial of counsel of — at arraignment violates due process.

Felix Frankfurter:

Well, not the allegation but whether as a matter of constitutional law, in a capital case, there is a requirement of presence of counsel.

If that’s the constitutional requirement and he’s alleged all that is within that requirement by —

George D. Mentz:

That is correct.

Felix Frankfurter:

— unless the state contests it, and on the issue of facts as in the controversy.

George D. Mentz:

Yes sir.

Felix Frankfurter:

But if he alleges, if it — if it had been — suppose it had been settled out that counsel requisite at arraignment in a capital case, then if a man say that he wasn’t present, then he sufficiently come within the requirements of your court, doesn’t he?

George D. Mentz:

I would think so, yes.

Felix Frankfurter:

I mean the injury derived from the fact that counsel wasn’t —

George D. Mentz:

Yes.

Felix Frankfurter:

— present, period.

George D. Mentz:

That’s correct.

That’s correct sir.

Felix Frankfurter:

If that’s being so.

George D. Mentz:

Although it does seem to me sir that in any legal proceeding where you assert that some right has been denied, it seems logical to me that you must also assert that some injury has resulted from it.

Felix Frankfurter:

Well, that’s because you conceive injury to be indispensible to the existence of our rights.

George D. Mentz:

I think so, yes sir.

Felix Frankfurter:

Well, that’s the issue, isn’t it?

George D. Mentz:

I think so, yes sir.

Hugo L. Black:

Well, it seems to me that if you can say that you always have to show that injury, that if he were to allege that he didn’t have a counsel to represent him when he’s being tried.

That he’d have to go further and show that that injured him.

Does your court’s opinion go that far?

George D. Mentz:

Sir, the court’s opinion doesn’t go that far, no sir.

Hugo L. Black:

It separates the parts and says that at this stage of the proceeding —

George D. Mentz:

At this stage of the proceeding.

Hugo L. Black:

That means that what was said in Powell, I believe, that every stage of the proceeding can be divided up into parts?

George D. Mentz:

Yes sir.

Hugo L. Black:

That’s the way I read the opinion.

George D. Mentz:

I think they’re right sir.

Charles E. Whittaker:

Did I misunderstood, Mr. Mentz, but I thought your court accepted petitioner’s showing that he was not represented at the arraignment and said — but there is no showing that this disadvantaged him and therefore, the writ is denied.

Isn’t that — is my understanding right or not on it?

George D. Mentz:

I think you’re right sir.

Charles E. Whittaker:

Well then if that’s so, it puts a burden on him to show as I understood Judge — Justice Black’s question not merely that he was denied counsel at arraignment but also that it hurt him.

George D. Mentz:

I think — that is my thinking on it, sir.

Charles E. Whittaker:

And that’s the burden of the accused, is it not?

George D. Mentz:

Yes sir.

Charles E. Whittaker:

That’s a different thing than if he made it to appear affirmatively, the petitioner did, that it did not injure him, but I should think that if he has a — an unqualified right to counsel at his arraignment, then some inference of injury flows and he has no further burden at least until someone — the state has gone forward.

I just don’t know what would you say about this?

George D. Mentz:

Well, I — just respectfully disagree with you, sir, on that.

I — that’s all I can say.

I still say — I’m of the opinion that even though a — an inalienable right has been denied, then if someone seeks to complain about it, he’s got to show that some disadvantage resulted to it — to him from it, from the (Inaudible) from that.

Earl Warren:

Mr. Attorney General, how would you distinguish legally this factual situation from the one where he was — we’ll say he was denied counsel at his trial, at the actual trial?

Supreme Court says here the burden is on him although he has a constitutional right to counsel this time, the burden is on him to prove that he was prejudiced.

George D. Mentz:

Yes sir.

Earl Warren:

Now the — he has a right, a constitutional right to counsel at the trial.

Now, would you say also that if he was denied counsel at the trial, that the same burden was on him, and if it isn’t, how do you differentiate the two factual situations legally?

George D. Mentz:

Well, Your Honor, I think arraignment is more or less a formality actually.

The trial court said its — it’s the trial, that’s where the facts are determined.

Earl Warren:

In a question of degree only?

George D. Mentz:

Yes, sir, but of great degree.

Earl Warren:

Well, if the man cannot of his volition demand a trial on the issue of insanity and if he cannot on his own demand test the sufficiency of the indictment and if he cannot of his own volition demand the right to challenge the sufficiency of the jury after arraignment, has he not been deprived to something.

Isn’t it more than a formality?

George D. Mentz:

No sir.

I don’t — I don’t quite agree with you on that.

I — it seems to me that — as I say at arraignment, we admit that many of these things should be done, in other words, they’re going to attack on the composition of the juries, a plea of not guilty by reason of insanity.

It should be filed there, but it is not irrevocably lost if he does not file those at that time.

Hugo L. Black:

I think you will find if you’ll look up the cases, we had quite a number of cases where it was lost irre — held to be irrevocably lost by state Supreme Courts, the right to challenge the composition of the jury by reason of discrimination and selection.

In one I recall, we had of course proceed to devise was that the man had to claim — attack it as I recall it, it was in ten days after the indictment was returned and he escaped.

And the — this Court held — impelled under those circumstances to hold that he had waived his right to challenge whatever (Inaudible)

George D. Mentz:

Sir, I’m not familiar with that particular case and —

Tom C. Clark:

In Mitchell, they’re not (Inaudible)

Hugo L. Black:

Yes.

Earl Warren:

Yes.

George D. Mentz:

Yes.

Tom C. Clark:

Mitchell, the Court say (Voice Overlap), we have to decide this far really, (Inaudible)

George D. Mentz:

No.

Tom C. Clark:

At least not by reason of insanity or in fact, the indictment, grand jury, there’s no attempts after counsel came in the case, was there?

George D. Mentz:

No sir.

Mr. —

Hugo L. Black:

Your problem here (Voice Overlap) —

George D. Mentz:

— Justice Clark, there was —

Hugo L. Black:

— whether the man can waive it — the problem here is whether that constitutional right to representation by counsel.

He denied him because the record fails to show he was injured.

And as the Chief Justice said, I cannot see why if that would relieve the man — take away from the man his right to counsel under those circumstance or arraignment, it wouldn’t take it away at the trial.

George D. Mentz:

I don’t know sir.

I – I would like to point that — to Mr. Justice Clark, that the — that there has been no intimation in here.

That there was anything improper about the composition of the grand jury or there has been some slight intimation of insanity but it consisted of two affidavits which were adduced at the motion for a new trial, one was from the defendant’s mother, the other was from his cousin.

The latter only saw him on Sundays when she went to get the — her sister to go to church and —

What was the purpose of those —

George D. Mentz:

So that they will present it at the time that an application for motion for a new trial was filed following his conviction.

Those after the —

Tom C. Clark:

After the trial, the jury’s (Inaudible) isn’t it?

George D. Mentz:

After the jury’s (Voice Overlap), yes sir.

Those particular affidavits indicated that the defendant was very restless, egotistical, shiftless sort of individual.

There’s no — nothing to indicate insanity.

And at the trial itself, Mr. Mayfield introduced one or two men who knew Hamilton well and they indicated — gave no indication whatsoever that he was insane.

In fact they testified that is reputation was good.

Tom C. Clark:

Did he intend to withdraw his guilty plea or pleas (Inaudible)

George D. Mentz:

No sir.

No sir, there’s nothing in the record to indicate that.

Now, that could’ve been done at any time.

And as a practical matter we do have that done under our procedure, in other words, where a man is charged with a capital offense, sometimes he can negotiate with the Solicitor.

Tom C. Clark:

Whether that indictment (Inaudible)

George D. Mentz:

Sir, our indictments just don’t do that.

Tom C. Clark:

Was there any attempt to attack here?

George D. Mentz:

Sir?

Tom C. Clark:

Was there any attempt to attack the formal indictment?

George D. Mentz:

Indictment, no sir, none whatsoever.

Felix Frankfurter:

The case before us isn’t a case where under state law, arraignment is a mere formality, as you’ve indicated a little while ago, meaning by that, I don’t know whether any state deal with the hypothesis which I’m about to give.

Meaning by that that the state has a statute which says at all arraignment, a plea of not guilty is to be assumed to be entered, and every question of law either attacking the indictment for insufficiency or for the makeup of the grand jury or for whatnot, prejudice of the judge, defense of insanity, alibi whatnot, all defenses are completely opened and must be initiated when the case is called for trial.

We haven’t got that kind of a case, have we?

George D. Mentz:

No sir.

Felix Frankfurter:

In other words, in this case, while every possible offense — and for all I know, even they attack upon the indictment or I don’t — myself see it, in the way in which modern indictments have (Inaudible) that there is any basis here for it, but that’s a question of local law.

But there is a difference here and that as to some defenses, there — they may be raised later, but on the whole, they must be raised mandatorily at the arraignment, isn’t that true?

George D. Mentz:

That’s correct sir, yes sir.

Felix Frankfurter:

So that you haven’t got a mere formality here and the case before the Court isn’t a question — isn’t a case of mere formality requiring an abstract, absolute ruling as to whether every kind of an arraignment, you must have a lawyer.

George D. Mentz:

Well sir, I don’t think any formality is a mere formality.

I — if I said that, I didn’t mean to.

Felix Frankfurter:

But I (Inaudible) —

George D. Mentz:

But —

Felix Frankfurter:

Well, I — if something is automatically done, I don’t know it could be done.

If — then, you’ve got — and one may say “mere formality” meaning it has no substance at all and not in the remotest or wildest imagination can any harm come.

But that isn’t this case, is it?

George D. Mentz:

I don’t think so, no sir.

Hugo L. Black:

I presume probably the type of situation he was hypothesizing as I recall it would exist in the case of a preliminary trial, the man is charged on a preliminary charge of a felony.

The court goes through a preliminary proceeding.

He may not put up any defense of any kind or have no special pleas, that that doesn’t affect him directly.

What he says there doesn’t affect him as to his right to raise something after indictment, does it?

George D. Mentz:

No sir.

Hugo L. Black:

That’s would — that would be the type of situation that I think Mr. Justice Frankfurter hypothesized.

But here, under the practice and the law, it is the duty to raise certain questions at the arraignment and permission to raise those later is on the sufferance of the court.

George D. Mentz:

That’s correct sir.

That is our practice.

Sir, you mentioned Michel, that is Louisiana, rather than Alabama.

Now, I —

Hugo L. Black:

Oh yes.

George D. Mentz:

I don’t know whether that —

Hugo L. Black:

Oh, yes.

I wasn’t (Voice Overlap) —

George D. Mentz:

— whether that make any difference —

Hugo L. Black:

And I was saying however that we had a number of cases —

George D. Mentz:

Yes sir.

Hugo L. Black:

— where procedural devices — or not devices, I’m not saying (Inaudible) but procedural requirements have been held to bar raising questions of this kind and some those as I recall it had been arraignments.

George D. Mentz:

Yes sir.

Well that — as I say, those went off on as I recall, Michel went off on the question of a waiver and —

Felix Frankfurter:

Would you mind just for my own information state as to what was in the record on this coram nobis proceeding that wasn’t before your Supreme Court on the appeal on the merits?

I’m not suggesting it had any significance.

I just would like to know without —

Hugo L. Black:

Well, Mr. —

Felix Frankfurter:

— having to go (Voice Overlap) —

Hugo L. Black:

— Justice Frankfurter, the only — of course the — the case on appeal went off primarily on the facts and —

Felix Frankfurter:

But weren’t all these points raised?

Hugo L. Black:

This point of nonrepresentation by counsel at arraignment was raised, yes sir.

Felix Frankfurter:

Because I’m just looking at the petition for certiorari when it came here by state counsel — that was all before us on the petition, therefore, presumably, it was in the record.

Potter Stewart:

Yes, but wasn’t the — I thought the first time on direct appeal, the Supreme Court probably self concluded by the minute entry.

George D. Mentz:

That’s correct sir, yes.

Potter Stewart:

But showed that he was represented and —

George D. Mentz:

That is correct.

Potter Stewart:

— it turned up on coram nobis where the minute entry was not —

George D. Mentz:

Did not control, that is correct.

Potter Stewart:

Then the affidavits came in to show that in fact he was not represented.

George D. Mentz:

That’s correct, sir.

That is the basic difference now of the facts which the Court is (Voice Overlap) —

Felix Frankfurter:

In the representations that are now made or have made at the time though the court felt it couldn’t go into it, but —

George D. Mentz:

That’s correct sir.

Felix Frankfurter:

— they were made, weren’t they?

George D. Mentz:

I beg your pardon?

Felix Frankfurter:

They were made, all these factors set forth.

George D. Mentz:

That’s correct sir, yes sir.

But —

Felix Frankfurter:

I didn’t imply any legal significance, is that —

George D. Mentz:

Yes, well as I — the court said that it was precluded from considering that point because the minute and the judgment entries showed that he was represented by counsel at arraignment and the method of attack was by means of the judges’ bench notes and they — our Court held that that was not permissible proceeding.

Felix Frankfurter:

And I suppose we could well view — we could well have it — assume that that was a state ground.

George D. Mentz:

Yes sir.

Tom C. Clark:

We denied that.

George D. Mentz:

You denied that, yes.

Felix Frankfurter:

We denied them.

Hugo L. Black:

But they permitted — they were permitted to challenge it on the coram nobis because they went behind the record.

George D. Mentz:

They went behind the record, they — and introduced the affidavit of Mr. Mayfield who stated that he was not present at the arraignment and — now, as petitioner’s counsel has pointed out, we feel that this Court has recognized the representation by counsel at arraignment in the state court is not an absolute necessity, at least in a non-capital case in the Canizio versus New York, there was a 19-year-old indigent, fully educated without counsel.

When he was arraigned, he pleaded guilty to a charge of robbery.

He was unfamiliar with his legal rights.

He — and trial court didn’t inform him of his right to counsel.

But this Court held that that defect was cured by his being actively represented by counsel prior to the time of sentencing and the reasoning was that counsel could have moved to withdraw that plea of guilty.

And the trial court had the authority to let him withdraw the plea of guilty and let Canizio stand trial.

Felix Frankfurter:

But didn’t that case come up in a different way, namely, whether that original conviction could be taken into account in a recidivist case.

George D. Mentz:

Sir, I’m not sure.

Felix Frankfurter:

I think it was that.

That it — mainly, the question of subsequent — he was up for — on a subsequent — for a subsequent crime.

And the question was whether the prior conviction could be deemed —

George D. Mentz:

That may well be and I just don’t recall.

Felix Frankfurter:

It could’ve led to (Voice Overlap) sentence, because he was a recidivist.

In other words, collaterally, the whole thing was sought to be opened up.

George D. Mentz:

I see.

Felix Frankfurter:

So, it might have been raised?

George D. Mentz:

But —

Felix Frankfurter:

I’m not suggesting it is relevant.

George D. Mentz:

In that case, it was argued that Canizio had counsel and ample time to take advantage of every right that would’ve been to him originally, and as I have attempted to point out, the Hamilton case is somewhere — now, in Canizio, he pleaded guilty.

In Hamilton’s essence case, he pleaded not guilty.

Hugo L. Black:

But that case is as I recall it, by reason of the case of Betts versus Brady should not be held finding here, that was not this case.

George D. Mentz:

No sir.

Canizio was not a capital case.

But here, we have Mayfield appointed three days after Hamilton’s arraignment, after Hamilton had pleaded not guilty and Mayfield’s appointment came 50 days prior to the date of the actual trial.

And we say that during that time, he could have — with the Court’s permission and had he considered them meritorious, he could have filed — he could have moved for continuance, he could have moved for a change of venue had he considered the atmosphere hostile, he could have file motions attacking the composition of the juries.

He could have withdrawn the plea of not guilty and attempted to —

Hugo L. Black:

You mean he could have attempted to do it.

George D. Mentz:

He could have attempted, yes sir.

You’re correct sir.

Hugo L. Black:

It was not a matter of right.

George D. Mentz:

No sir, it is discretionary with the trial court, but (Voice Overlap) —

John M. Harlan II:

The Court of Appeals — or your Supreme Court’s opinion on 28 and 29.

George D. Mentz:

Which case is that sir, is that the coram nobis, or —

John M. Harlan II:

That’s the coram nobis.

And — yes, I’m looking at the printed record.

George D. Mentz:

I see, sir, 28 and 29, yes sir.

John M. Harlan II:

Where it says we hold that it —

— is made to appear in this proceeding that Hamilton was not represented by counsel at the time he was arraigned.

Do you take that to mean that lacking the formal appointment as a matter of state law, he could not be considered to have Mayfield as his assigned attorney at that time or merely that even though Mayfield’s original appointment had (Inaudible) Mayfield is not physically present at — at the arraignment.

George D. Mentz:

I don’t know sir.

I — frankly, I take it to mean that he — he had no counsel appointed for him.

John M. Harlan II:

Do you take it’s the meaning of it?

George D. Mentz:

That is my personal interpretation.

Now, but in line with Canizio case, while it was discretionary with the trial court, the trial court nevertheless had the authority to grant any of these motions that I just mentioned.

Now, furthermore, inasmuch as this Court refused to review a federal appellate court, amended 1955, the Court seemingly recognized the principle that representation by counsel at arraignment in a state court is not mandatory even in a capital case.

I refer to State versus Sullivan in which the Court of Appeals for the Tenth Circuit held that where an accused charged with murder entered a plea of not guilty and is immediately thereafter furnished with counsel for the preparation for the trial, for the trial itself, and proposed trial proceedings, that the sentenced rendered is not void.

In that case, the court found that there was a complete failure of any showing that at any juncture in the criminal case, the accused was denied any substantive or procedural right which might have been available to him except for such plea.

George D. Mentz:

The court logically reasoned that the petitioner did not suffer any proscription or disadvantage arising out of the plea of not guilty.

And therefore, that there was no violation of due process or any impingement of fundamental rights.

And we submit that in this case that there is a somewhat situation, a comparable situation.

While counsel was not appointed immediately, he was appointed three days later, after the arraignment, he was appointed 50 days prior to the trial.

And in line with State versus Sullivan, I think there’s a very close analogy.

And as I say, in his petition for coram nobis, he did not allege and he did not offer any evidence and the record doesn’t show that he was injured by not having been represented by counsel at arraignment.

Now, as to the second question presented, it’s our contention that the record in this case does not make such a showing a fundamental unfairness as to warrant a decision that the Alabama Supreme Court ordered the reversal and denying Hamilton’s petition to coram nobis.

Various tests have been applied in the determination of what constitutes fundamental unfairness, and they include the gravity of the offense, the nature and the complexity of the issues, the age of the accused, his mental capacity, which would embrace mental illness or feeblemindedness.

His background, including education and experience, ignorance or literacy, his knowledge of law, such as lack of familiarity with legal rights, capability of questioning witnesses, the degree of protection given during the trial as it appears from the conduct of the court or the prosecutor, or any other like inadequacy which makes the accused incapable of conducting his own defense in that particular stage of the proceeding.

Now as applied — as we apply these tests to the present case, we admit of course that the offense was extremely grave.

But I am unable to see where the issues were complex.

As for his age, the record doesn’t show how old he was but there’s no claim of youthfulness and we know that he served in the army for five years.

Felix Frankfurter:

How long — how many hours where he — total act — the total trial.

How long was the proceeding in court at the trial actually going on?

Do you know Mr. Attorney General?

George D. Mentz:

No sir, I don’t.

I’m willing to accept the petitioner’s statement that the trial started —

Felix Frankfurter:

11?

George D. Mentz:

— at 11 and was —

An hour and 40 minutes —

George D. Mentz:

An hour and 40 minutes for lunch, and concluded some time in mid-afternoon —

Earl Warren:

Well —

George D. Mentz:

4:10 she said.

Felix Frankfurter:

4:10.

That was —

George D. Mentz:

There were only a few witnesses.

Felix Frankfurter:

11 to one?

That’s two hours?

George D. Mentz:

There were —

Felix Frankfurter:

Or less than —

George D. Mentz:

The witnesses called were the granddaughter and her husband, there were two policemen, there were two or three witnesses who — a man who testified as to Hamilton’s whereabouts on the night of the alleged crime and —

Felix Frankfurter:

The alleged victim was not called, was she?

George D. Mentz:

No sir, she wasn’t.

She was an elderly woman.

She was feeble.

She was practically blind.

She was of Italian descent and spoke very brokenly, so brokenly that the — according to the defendant’s own testimony, he couldn’t understand it.

I don’t think she would have made a very good witness for either side.

Hugo L. Black:

As I recall it, there was no evidence that she was a victim.

George D. Mentz:

That she was what sir?

Hugo L. Black:

That she was a victim.

George D. Mentz:

No sir, it was a — it was merely an attempt to ravish.

She was heard —

Hugo L. Black:

That was drawn as I recall it, I read all the evidence some time ago.

As I recall it from the fact of it, the testimony that this man was there with nothing but a pair of corduroy, which is on him.

George D. Mentz:

Sir, he was in his underwear.

Hugo L. Black:

Yes.

That’s (Voice Overlap) —

George D. Mentz:

He had a shirt —

Hugo L. Black:

A corduroy and shirt —

George D. Mentz:

And his underwear with his privates exposed, his shoes, his pants lying —

Hugo L. Black:

One shoe under the bed.

George D. Mentz:

— on her bed.

And one shoe was under the bed and one shoe was near the door and the —

Hugo L. Black:

That was based on a threat to do it, not on the actual thing.

George D. Mentz:

That’s correct sir and they have mentioned that there was no evidence of the door having been forced.

I disagree with them on that.

I think one of the witnesses did testify that there was outburst, the door had been locked — had been forced.

Certainly one witness, the grandson testified that when he went to bed, the door was locked.And that when he heard the grandmother hollering and went to — into her room, the door was wide open.

And they have talked about the conflict between Hamilton and his attorney.

George D. Mentz:

I don’t — think the reading of the records will not substantiate that.

Hugo L. Black:

Hamilton and what case?

George D. Mentz:

Hamilton and Mr. Mayfield, his lawyer, being in conflict.

What was the dictum?

I haven’t read this.

Felix Frankfurter:

You said there was no conflict?

George D. Mentz:

I don’t think there was such conflict as they —

Felix Frankfurter:

Well now, what is your —

George D. Mentz:

— import it.

Felix Frankfurter:

What is your understanding of what actually took place, as one could find if one read the record, which I haven’t done?

George D. Mentz:

Well, at the outset, Hamilton stated — first, he objected to the — being tried upon the second indictment.

He said in effect — he said, “It’s my understanding that once I’m charged — if I’m charged with one thing, they can’t take that off and put something else on me.”

And then —

Hugo L. Black:

The first one as I recalled it, am I wrong about that charge merely burglary with intent to steal?

George D. Mentz:

To steal, yes.

And Mr. Deason, his Deputy Solicitor explained that, he realized that some — there was a typographical error or just to clarify, are made by the grand jury that that was not the correct indictment, and, so for that reason, a second presentment was made to the — another grand jury to (Voice Overlap) —

Earl Warren:

Well apparently, they didn’t — apparently, they didn’t think the first charge was wrong, they just added something to it because they —

George D. Mentz:

Well, that —

Earl Warren:

— included the —

George D. Mentz:

That’s correct.

Earl Warren:

The — so, it wasn’t a typographical error.

George D. Mentz:

Well, it was — no sir, it wasn’t a typographical error.

We’ll say that it was never in — it didn’t go as far as it should have, the first indictment, because certainly under the evidence, everything indicated an intent to rape the old lady.

Earl Warren:

And not an attempt to steal?

George D. Mentz:

I saw no evidence of an intent to steal in — there might have been.

Hugo L. Black:

Who testified with reference intent to rape?

George D. Mentz:

The granddaughter of the alleged victim and the grandson, two police officers, the — the granddaughter and her husband testified that they heard the old lady hollering in the next room.

They went in there, they found the defendant in his clothes — in his shirt only, his trousers off, his private is hanging out, his shoes off, his trousers on the woman’s bed, and they also testified that he was required to put on his trousers at least.

I’m not sure about his shoes.

But that he did not button his trousers and that when the police got there, he was — his clothes were just loosely assembled on him.

Earl Warren:

The grandchildren compelled him to put his trousers on?

George D. Mentz:

Yes, and await at gunpoint until the police arrived.

Felix Frankfurter:

What — you — you have of course read the minutes of the trial.

What kind of a charge would you — you didn’t have to describe the charge that (Inaudible) the jury, whether an extended charge or just abstract legal oppositions.

George D. Mentz:

Your Honor, I confess, I have not read it.

I only came in the case about a month ago and I didn’t anticipate this question, and I didn’t read it.

I’m sorry.

Felix Frankfurter:

I don’t know whether we have the minutes of the trial here.

Do you happen to have them here?

George D. Mentz:

Yes, I do.

Felix Frankfurter:

So that if — if there’s need for — some of us would like to see (Voice Overlap) —

George D. Mentz:

Yes, we would be very glad to —

Felix Frankfurter:

How many pages are the minutes (Inaudible)

George D. Mentz:

Well, it goes from 86 through — well, at the top of 93.

It is not a lot — a long charge.

Felix Frankfurter:

But of the charge — but, is that the whole — is that the whole minutes of the trial?

George D. Mentz:

This is the trial record, yes sir, which you (Voice Overlap) —

(Inaudible)

Felix Frankfurter:

Some testimony also.

George D. Mentz:

Yes sir.

Felix Frankfurter:

The clerk is — our clerk is looking it up.

If we have it — if we have (Voice Overlap) —

George D. Mentz:

I think it is here.

Didn’t it come up on the appeal?

Felix Frankfurter:

Did you make it part of the — was it (Voice Overlap) —

Hugo L. Black:

Its right here, I read it.

George D. Mentz:

I think so, but I should be very happy to leave this record.

It is marked up.

Earl Warren:

If you will.

If you will, please, if it won’t inconvenience you.

Hugo L. Black:

As I recall it, Mr. Milko testified that he went into this room and found the man there.

And that the man was standing there, he said, that he then went back into his room, got his revolver and returned.

And when he returned with his revolver, the man was still standing precisely the same place he had been when he was found and Mr. Milko left.

As I recall it, that was the evidence and that seems to be what Judge Livingston said was the evidence.

George D. Mentz:

Yes sir, I think so.

Felix Frankfurter:

You were — you were going to expound what your view was regarding this conflict — this conflict between Hamilton and Mr. Mayfield.

George D. Mentz:

Im sorry, if i —

Felix Frankfurter:

It took place in open court, didn’t it?

George D. Mentz:

This particular part did take place in open court, yes sir.

At the outset — says the defendant, before the trial gets underway, I have been here for seven months and the first charge that was brought against me was nighttime burglary with intent to steal, grand jury, July 1956, and that was the charge.

And now, they have another one out.Can they charge me two times?

And the court went on to explain that he was indicted by one grand jury and that a second grand jury returned the second indictment.

And the defendant says, “It’s one and the same thing.

I understand that once they put a charge on me with one thing they can’t take that off and put another one on me.”

Then he — a little bit further down, he says, “Before you go on, let me say this, this lawyer is not my lawyer.

He was appointed by the court.”

The Court: “The law provides the court to appoint you counsel.

You were appointed the lawyer so that you may get your constitutional rights.”

Mr. Mayfield: “I would like to request permission to withdraw from this case.”

The Court: “Permission would be denied at this time.

I know how you feel about it.

But the law provides that this man have counsel and he did not have one.

And we have had no word from any other lawyer other than yourself.

You were kind enough to agree to represent this man when I appointed you and I appreciate it.

I know you are qualified to give this man a fair trial and for that reason, I would not at this time allow you to withdraw.”

And in that connection, I have found no Alabama cases in point but I have found some Federal District Court cases, which say that the right to — for a counsel to withdraw or for the defendant to demand the counsel withdrawal is purely within the discretion of the trial court.

And that’s — the reason is obvious because the defendant could indefinitely stall at the eve of trial and he could say, “I don’t want this man to represent me.

They’d have to carry the case over for another time.”

Tom C. Clark:

He didn’t get to the — the reason, again — the part when he said about, “This is not my lawyer.”

George D. Mentz:

The defendant: “Before you go on, let me say this, this lawyer is not my lawyer.

George D. Mentz:

He was appointed by the court.”

Tom C. Clark:

Did he ever say that he didn’t want him?

George D. Mentz:

Never.

Felix Frankfurter:

Was there any —

George D. Mentz:

No — no time did he request that the lawyer be dismissed.

Felix Frankfurter:

Was there any further — any further open conflict between or any further incident regarding the retention of this man as his counsel?

George D. Mentz:

Your Honor, I don’t recall any.

John M. Harlan II:

I flipped this record through on the bench, perhaps this is the (Inaudible)

Just following this episode, the court had told him that he wouldn’t allow any defendant to ask any questions he wanted himself, after his lawyer Mayfield, about the (Inaudible)

George D. Mentz:

That’s correct sir.

John M. Harlan II:

And at the outset, the defendant discard to exercise that privilege and then it’s(Inaudible) and apparent that he wasn’t able to articulate or to ask questions that (Inaudible) and he stopped exercising that privilege.

But he was never cut off from doing it, is that right?

George D. Mentz:

That’s correct sir.

John M. Harlan II:

And beyond that, I couldn’t find any — and I again say that I read this — flipped this (Inaudible) from the bench.

George D. Mentz:

Yes sir.

John M. Harlan II:

I couldn’t find any episode other than the colloquy that you referred —

George D. Mentz:

(Inaudible)

John M. Harlan II:

— that would evidence any, typewritten at least, quarrel between himself and his lawyer.

George D. Mentz:

You’re quite right sir, I have —

John M. Harlan II:

When it comes to the charge, the charge was about —

Earl Warren:

I thought the counsel said that he was publicly reprimanded in front of the jury for his questions and his actions.

George D. Mentz:

I don’t recall the counsel said that it was done before the jury.

They did say that this episode that I just mentioned to the court before the jury and it did —

Earl Warren:

What did the judge say?

George D. Mentz:

Hamilton was reprimanded but he was reprimanded not in the presence of the jury.

If I may — he — the court excused the jury and then he cautioned Hamilton as to the effect that his conduct would have on the jury.

He said you’re sitting up there reading a newspaper or pamphlet of some kind, you’re chewing gum and he cautioned him, he said now, —

What did he say?

George D. Mentz:

“You’re entitled to your constitutional rights but with such behavior as this, you can’t get it.

You’re obliged to create a bad influence on the jury.

George D. Mentz:

Now all of this — that was done outside of the jury as you’ll see from this record.

Was that a reprimand?

George D. Mentz:

Sir?

You call that a reprimand?

George D. Mentz:

No sir, I don’t call it a reprimand.

I have to call it bending over backwards in an effort to be fair to the defendant.

And certainly, as Mr. Justice Harlan has pointed out, after each interrogation or after the interrogation of each witness, the court asked Hamilton, they said, “Now, do you want to ask this witness any question?”

Of course, Hamilton kept hammering away what he was trying to get at was the double jeopardy feature of the second indictment as to what went on in the grand jury.

The trial judge properly ruled that those questions were not proper or pertinent and told him that they were not.

Now — and I would like to point out also that Hamilton was permitted to argue the case personally to the jury when — at the conclusion of the case.

During the trial, Hamilton treated his — Mr. Mayfield respectfully.

There’s no evidence that he argued with him.

I don’t — I don’t see this build up about open conflict of being at war with each other.

It just doesn’t appear in the record.

Felix Frankfurter:

Suppose the judge on the basis of Hamilton’s remarks about his lawyer which — that “He isn’t my lawyer.”

That’s certainly susceptible of more than one meaning —

George D. Mentz:

That’s correct.

Felix Frankfurter:

Meaning, I didn’t choose him, you chose him.

George D. Mentz:

That’s correct.

Felix Frankfurter:

But suppose a judge out of extreme caution of sentiment or whatnot thought it would be — we better not try this case in that situation and had — he would have had to call it a mistrial because the jury has already —

George D. Mentz:

That’s correct sir.

Felix Frankfurter:

(Inaudible)

George D. Mentz:

That’s correct.

Felix Frankfurter:

He ran the risk of double jeopardy by improperly putting them to a trial but waive all that.

Suppose he wanted to have a new trial or another trial, what would that involve in the county in Alabama in which this case was being tried?

Could he try it the next — could he — could he call the case, put it off the next day, and get a new jury?

Or would he require time?

Where was this tried, Mr. Mentz?

George D. Mentz:

It was tried in Jefferson County, Alabama.

And so, they have a very heavy — Mr. Justice Black will know about this, Birmingham is a large — is our largest county — city, and they have a heavy criminal docket at all times.

George D. Mentz:

Now, it’s conceivable that the calendar may have accommodated the case the next day.

It’s also conceivable that they may have been a delay of several months.

I guess I can’t give you a definite answer on that.

Hugo L. Black:

They keep juries there all the time, do they not?

Juries (Voice Overlap) —

George D. Mentz:

There, the court there (Inaudible) — of course, there are five or six judges holding the court and the court is going on practically all the time, yes sir

Hugo L. Black:

Cases are set constantly and one judge frequently (Inaudible) to the other judges.

George D. Mentz:

That’s correct sir.

They have referred to this man as being illiterate.

We know he reached the 11th grade.

We know he served three years in the army honorably.

We know that he was allowed to reenlist.

As with respect to his legal rights, he received a dishonorable discharge from the army in January of 1956 and that presupposes a general court martial at which he was represented by counsel and where he observed legal proceedings.

He was present with Mr. Mayfield at the first arraignment when Mr. Mayfield upon a very similar indictment pleaded him not guilty.

The two incidents, the two indictments arose out of the same transaction, the same set of facts, and he said he knew enough about the second indictment to argue double jeopardy.

Hugo L. Black:

You’re not — I’m sure you’re not arguing that he didn’t need a lawyer.

George D. Mentz:

Sir?

Hugo L. Black:

I’m sure you’re not arguing that he didn’t need a lawyer.

George D. Mentz:

No sir, I’m not.

Hugo L. Black:

I can’t — can you think of any case, of any kind where he wouldn’t have — where he would’ve needed a lawyer more?

George D. Mentz:

Where he would have needed a lawyer more?

Hugo L. Black:

Needed a lawyer more than in this kind of a case.

George D. Mentz:

Sir, I think on any capital case, the person, the accused needs a lawyer.

But we do feel that he had a lawyer at the critical stage of — when he needed him most.

Hugo L. Black:

I think there’s no doubt whether he had a lawyer while he was being tried?

George D. Mentz:

Yes sir.

I (Voice Overlap) —

Tom C. Clark:

I suppose the record doesn’t show whether he was sworn and he — or that he was told that he could have a lawyer at the arraignment.

George D. Mentz:

No sir, the record is not — the record is silent with respect to that as I recall.

Tom C. Clark:

And there wasn’t any request, as far as the record shows (Voice Overlap) —

George D. Mentz:

No sir.

The record does not show that either.

Felix Frankfurter:

I read this — going through this, what took place after the Court got through over this charge, apparently when he was through, the Court asked the — Hamilton, in addressing Hamilton himself: Are you satisfied with the Court’s charge?

He had to ask his lawyer, he’d ask both sides.

And then the defendant evidently, double jeopardy was strong in his mind.

George D. Mentz:

That’s right.

Felix Frankfurter:

And he makes that remark to the Court.

The Court: You misunderstood — stand.

I just took about — but since you didn’t want your lawyer to help you, since you didn’t want your lawyer to help you, I asked you if you had any exceptions of the law, that statement that you’ve read so that — I think there is — it means, number one, to what I’ve read, namely that evidently Hamilton was not happy with Mr. Mayfield.

The judge was taking care of that situation or rather keeping that in mind all the time.

George D. Mentz:

Sir, it is possible that Hamilton wouldn’t have been happy with any lawyer.

Felix Frankfurter:

Litigants have been known to have that attitude, done professionally.

George D. Mentz:

That’s correct sir.

If there’s no further question.

Thank you very much.

Earl Warren:

Mrs. Motley.

Constance B. Motley:

May it please the Court.

I’d like to say that we’d be happy to leave our copy of the record on the previous hearing which contains the testimony on the trial.

Earl Warren:

Thank you.

Constance B. Motley:

And —

Earl Warren:

We will get it.

Constance B. Motley:

— I just like to point to one page of that testimony, which is page 78, I guess (Voice Overlap) —

What page Mrs. Motley?

What page?

Constance B. Motley:

78, and underneath it, it says, 64, I don’t know which is the right number, that’s two numbers on each page but the top number is 78.

In the middle of that page, the Court said this to the defendant, “You are going into a whole lot of stuff that is entirely illegal.

And I’ll let you rave on, now you are arguing.”

This is what we meant when we said there was conflict between the petitioner and the Court during the trial in the presence of the jury.

Now, there are other incidences and we’ve cited some in the brief with the page references but we’d be glad to leave this extra copy —

Earl Warren:

Thank you.

Constance B. Motley:

— with the Court of the — what happened on the trial.

I misunderstood you.

I thought you said it was the conflict between the lawyer and Hamilton.

Constance B. Motley:

Yes.

You said the Court (Voice Overlap) —

Constance B. Motley:

Well, we did.

And then Mr. Justice Frankfurter pointed to one place.

And we, of course, say that the conflict was evidenced in the very beginning when the petitioner said, “This is not my lawyer.”

We think that the Court had a duty to inquire into that and to find out the basis of the dissatisfaction and to make some change in the situation.

If the counsel has been present in the arraignment, the Court might have at that time, seen the conflict between counsel and the client, and then was the time to have made the change in counsel of course.

But the lawyer was not there and this is one of our reason for saying arraignment is very important because this kind of thing, they come to light at the time of arraignments.

But all of the remarks made by the Court and this conflict or dissatisfaction with client and lawyer was all in the presence of the jury and what they concluded of course was mere speculation.

But we say this kind of thing should not happen in the presence of the jury in a capital case.

Another thing I’d like to clarify which was raised earlier in the argument with my — my opponent, this petitioner never had a hearing on his coram nobis application, permission to file coram nobis in the trial court was denied by the Supreme Court of Alabama.

So there was no hearing on it.

He made an application for leave to file a petition in the trial court which is a procedure in Alabama.

So that what was denied was the permission to file it.

Now of course, petitioner says that arraignment is not a mere formality.

The arraignment is a very, very important step in a criminal proceeding.

In this case, the charge shows that the petitioner here was presented with a charge involving complex legal and factual issues.

As was pointed, the code nowhere defined intent to ravish, yet that was the charge in the indictment to which he pled.

In addition —

Potter Stewart:

Mrs. Motley, there’s no question about — that in case, when we’re talking about arraignment, we’re talking to the procedure — about the procedure that follows after an indictment —

Constance B. Motley:

That’s right.

Potter Stewart:

— where there’s a hearing be — in an open court in — whether defendant at that time pleads guilty or not guilty or files objections to the indictment or makes other motions because — I asked that question because in literature, including a good — many of the opinions of this Court, that word “arraignment” is used sometimes to mean a variety of things.

It’s used to mean a preliminary hearing prior to indictment.

Constance B. Motley:

Yes sir.

Potter Stewart:

Is there any such procedures out in Alabama?

Constance B. Motley:

Well, I’m not sure about that, but I know that in Alabama, this was a time after the indictment at which you were required to plead.

Potter Stewart:

Plead to the indictment.

Constance B. Motley:

That’s right.

Potter Stewart:

Or otherwise object —

Constance B. Motley:

And to make a special plea if it were for insanity and to make other objections to the indictment.

For example, objecting to the composition of the grand jury.

And there’s a case before this Court, Reeves against Alabama in which a Negro defendant sought to raise after arraignment the question of the exclusion of Negroes from the jury.

And the Alabama Supreme Court ruled that he should’ve raised it at the arraignment or prior thereto, and when he was denied the right to do so by the trial judge, they did not reverse it, because he had lost the absolute right to challenge the jury by not having raised this on arraignment.

So that arraignment in Alabama is not a mere formality.

Of course, as a practical manner, arraignment also is the time to enter a plea to lesser crime which this petitioner could not have known and without a lawyer, he certainly didn’t know that.

It was also the time perhaps to enter a plea of guilty and receive mercy, so there was no mere formality about it.

And I don’t recall anything in this record which attempts to explain why the first indictment did not contain the second count.

I don’t see anything in there.

Maybe I overlooked it but I don’t believe there’s any explanation in the record to that effect.

Felix Frankfurter:

Mrs. Motley, I was taking your brief and I was interested to find — my eyes fell on your — in Cf. Snyder against Massachusetts, what’s — what comfort do you get out of that case on page 20?

I should —

Constance B. Motley:

What page is that, Your Honor?

Felix Frankfurter:

Page 25.

I should think that page contradicts the uncritical observation that a defendant must be represented at every stage throughout the case because that case holds just the opposite, namely that the defendant’s lawyer need be — needn’t be present when the jury views the scene.

That’s — that what the case decides, I think I’m right Mrs. Motley that that —

Earl Warren:

(Inaudible)

Felix Frankfurter:

But that means that you recognize —

Constance B. Motley:

Well, we were just using that to compare the situation there.

Felix Frankfurter:

Meaning — so what do you do with it and how do you compare it?

Namely, that’s the case, the decision in a murder case, that counsel need not be present at every stage of a trial, of the proceeding.

That’s what the Snyder case stands for.

Would that turn the heart of Mr. Justice Cardozo writing the opinion for the Court?

Hugo L. Black:

Was that decided before, I asked you the Powell case, I have forgotten —

Felix Frankfurter:

That is after it.

Constance B. Motley:

Well, —

Felix Frankfurter:

Suppose (Voice Overlap) —

Constance B. Motley:

— we were just trying to point —

Felix Frankfurter:

— take your time.

I just —

Constance B. Motley:

Yes.

Felix Frankfurter:

I just point out that there is a decision which shows the danger of this at larger remarks, even in opinions.

And when the — when in the Patton case, just as — you said that he must — a lawyer must be present at every stage of the proceeding, of course it must be with reference to the proceeding they were talking about, in that case, which was the trial.

Constance B. Motley:

Yes.

Well, I’d like to make this other point and at this time that Alabama says in effect when it cites Canizio against New York that whatever went amiss at the time of arraignment, it could have been cured or was cured at the trial.

The Court may recall that in the Canizio case, the defendant had pled guilty to a lesser crime and he was not represented by counsel.

But at the time of sentencing, he was represented by counsel and during a long, lengthy hearing on that day, the lawyer considered as this Court pointed out probably the advisability of withdrawing that plea of guilty and decided against it because the record in that case showed that he was, perhaps, guilty of the greater offense which was robbery unarmed, whereas he was permitted to plead not guilty to a lesser offense.

So that in effect in that case, his counsel did correct whatever might have been wrong by — as not being present at the time of arraignment.

But in this case we say that no such thing happened, at this trial, nothing could have been corrected.

Potter Stewart:

Does it —

Constance B. Motley:

So there are —

Potter Stewart:

Mrs. Motley, why the first indictment was quashed.

I’m looking on page 6 of the record, it says nolle prosequi to faulty indictment on (Inaudible) period, and some other language I can’t quite read.

It’s in (Inaudible) handwriting.

Constance B. Motley:

Yes, that’s all.

I think that the — the record says about that first indictment.

I think there was an explanation here that it was changed because of typographical error and that was what I had referenced to when I said that there wasn’t anything in the record which it attempted to explain why there was a necessity for changing the indictment, putting that second —

Potter Stewart:

That’s what I thought (Inaudible)

Constance B. Motley:

That — it’s not there.

Potter Stewart:

— for the record.

Constance B. Motley:

I didn’t see it.

If it is there I didn’t see such explanation.

William J. Brennan, Jr.:

What about the Sullivan case Mrs. Motley?

Constance B. Motley:

Well, that is a lower court decision of course, which this Court refused to review and I don’t think that that can be cited as authority for the proposition that in a capital case, the accused is not entitled to counsel at the time of arraignment.

Potter Stewart:

That was a capital case.

Constance B. Motley:

Yes, it was —

William J. Brennan, Jr.:

And that was a no —

Constance B. Motley:

— but it was not reviewed by this Court.

William J. Brennan, Jr.:

No, but it was a holding of a —

Constance B. Motley:

Yes, there wasn’t —

William J. Brennan, Jr.:

I think it was the Tenth Circuit would (Voice Overlap) —

Constance B. Motley:

That’s right, in that Circuit, there was that holding, yes.

But this Court did not review that case, so that it can’t be cited as authority of this Court for the proposition that counsel is not needed at the time of arraignment.

Earl Warren:

Mrs. Motley, in the charge, did the judge define ravish and equate that to rape and —

Constance B. Motley:

No sir.

As a recall, the judge did not define intent to ravish in the charge to the jury.

And the counsel representing petitioner didn’t take any exception to that as I recall.

Hugo L. Black:

But the counsel for defendant did ask for a charge if that must be established beyond reasonable doubt.

The Court denied that on the ground that it was covered in the old charge.

Constance B. Motley:

The charge.

I didn’t have the latter part rather.

Hugo L. Black:

The Supreme Court held that was probably denied, that charge, because it again substantially covered in the old charge.

Constance B. Motley:

Yes, that’s what the Court held on that.

Earl Warren:

But as I understand it, there is no — no crime called to ravish.

Constance B. Motley:

That’s right.

Earl Warren:

In the state of — of this state.

And the indictment says that he entered this place with the intent to ravish.

The indictment did not name the person who was supposed to be ravished —

Constance B. Motley:

That’s right.

Earl Warren:

And the Court did not instruct the jury as to the definition of ravish or whether it was — it was the same as rape under —

Constance B. Motley:

That’s right.

Earl Warren:

— the law of that state.

And in other words, there was no definition as to what constituted ravish.

Constance B. Motley:

That’s right Your Honor.

I think that in this case, as in many other cases, as the Court knows, it is very difficult but not impossible to prove that a counsel was ineffective or incompetent.

And I think that for this reason, this Court ought to require as the very minimum objective standard of procedural due process which may be enforced, that at the time of arrangement, there ought to be some counsel represented — representing the petitioner in a capital case.