Humphrey v. Cady

PETITIONER:Humphrey
RESPONDENT:Cady
LOCATION:McDonnell Douglas Corporation Factory

DOCKET NO.: 70-5004
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 405 US 504 (1972)
ARGUED: Dec 07, 1971
DECIDED: Mar 22, 1972

ADVOCATES:
George L. Frederick – for respondent
Irvin B. Charne – for petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – December 07, 1971 in Humphrey v. Cady

Warren E. Burger:

We will hear arguments next in Humphrey against Cady 5004.

Mr. Charne, you may proceed whenever you are ready.

Irvin B. Charne:

Mr. Chief Justice and may it please the Court.

This is a writ of certiorari to the United States Court of Appeals for the Seventh Circuit.

And I represent the petitioner Donald Yogurt Humphrey who presented as the Court knows his hand written petition to this Court without the benefit of counsel.

Mr. Humphrey’s case, commenced — started back in May of 1967.

On May 30 of 1967, he was arrested in the state of Wisconsin Waukesha County which is a county adjacent to Milwaukee County and charged with the offense of contributing to the delinquency of a child.

This is a misdemeanor in the State of Wisconsin caring a maximum penalty of one year.

We do not have the record, Your Honor of that initial proceeding here.

However, in his petition to this Court for writ of certiorari Mr. Humphrey said, he was sitting in a car and drinking beer with the boy who was almost 14 years, he was 13 at that time.

And this is–, I think over in Wisconsin, a very frequent type of case that contributing to the delinquency of a minor.

It is against the law for a minor to drink beer and if an adult gives him an alcoholic beverage, you are then contributing to delinquency of a minor.

So that is apparently the offense for which he was arrested.

May 30, 1967, the next day, May 31, 1967 he was in Court.

He pleaded guilty to the offense and the Court under the Wisconsin Sex Crimes Act committed him for a pre-sentence examination.

(Inaudible) that the conviction was not for —

Irvin B. Charne:

No, Your Honor.

It was for contributing to the delinquency of the child.

Now then, we –.

Pardon me, yes sir.

Probably, you mean that the Wisconsin need know it is not a factual offense?

Irvin B. Charne:

Well, Your Honor, I will explain what the Wisconsin Sex Crimes Act covers.

In Wisconsin under our Sex Crimes Act, there are two categories of Sex Crimes.

One category is that which calls for a mandatory sentence under the Sex Crimes Act and that includes the offenses of rape, attempted rape, sexual intercourse without consent and indecent liberties with a child.

If you are convicted of those, you automatically go in the system.

However, the Wisconsin statute provides that any other offense except homicide or attempted homicide can also be a Sex Crime, it is a Sex Crime, if the Court finds that the defendant was probably, directly motivated by a desire for sexual excitement in the commission of the crime, if the Court finds —

This could be shop lifting or arson or —

Irvin B. Charne:

Yes, Your Honor or sneaking in to an X-rated movie.

If the Court finds that the defendant was probably, directly motivated by a desire for sexual excitement in the commission of the crime, this becomes a Sex Crime in the State of Wisconsin.

Thurgood Marshall:

What kind of evidence does the Judge takes to make that defense?

Irvin B. Charne:

Well, this is one of our complaints, Your Honor because I do not think that the statute requires any evidence.

It does not require assuring on that issue and we do not have a record as to what happened but we do have a record.

What is in the record shows that this man was arrested May 30th?

He was convicted on his plea of guilty to the crime of contributing to the trial on May 31st and sent away, for a pre-sentence examination under the Sex Crimes Act.

Well, if you say we do not have a record, we have his say so that he was sitting in an automobile with a juvenile of the same sex drinking beer but if he does not say what else is going on.

Irvin B. Charne:

Well, in his petition to this Court, Your Honor he says that, that is all that was going on, he says that he and the boy were put under considerable pressure to testify of something else, but both of them denied it.

He also says the boy was sent to a hospital for a Medical Examination and that there was no evidence of any Sexual Molestation.

So it is unfortunately, that we do not have that record but that is what the evidence is now.

We do have the Court’s order of commitment which does not indicate any hearing on that particular issue.

He was sent away on May 31st and on July 24th, the report came back from the Department that had examined him and that is found the orders in the Court — entered an order which is found on the appendix on page 11, that is part of the record and the Court says nothing about the basis of its finding that this was a Sex Crime, it says that he was sent away and the report of the Department came in and based upon that report he sentences him under the Wisconsin Sex Crimes Act.

He was sent to walk on state prison which at that time was the facility designated for a Sex Crimes Act people.

It was not a hassle to walk on a state prison.

Do we have the report?

Irvin B. Charne:

No, we do not have the report, Your Honor it is not in the record.

We do know, do we?

That it was the recommendation of the Department, that your client was in need a specialized treatment for his mental aberrations, I am reading from your brief.

Irvin B. Charne:

I believe that, yes!

(Inaudible).

Irvin B. Charne:

Yes sir.

And that the Judge says that in his order and incidentally the order of the Judge also indicates that on the day when he was sent away, that there was no attorney present, says that the report came back on July 24th and the appearances were the state of Wisconsin appearing by Robert Evans, assistant attorney –, district attorney for Waukesha County and the defendant appearing in person.

So that on that day, when he commenced his sentence under the Sex Crimes Act apparently, there was not even a hearing on that day.

Now then he went –

Now, what is the sentence under the Sex Crimes Act?

Irvin B. Charne:

Now, the sentence under the Sex Crimes Act is an indefinite period of time in these segments.

First, you go for the maximum period for which you could have been sentenced.

It could be a year?

Irvin B. Charne:

Yes, under the offense.

Then the Department, if it believes that you are danger.

If there is danger to the public from releasing you, orders you extend it and that order is subject to review of a Court and they can extend you in five-year increments without limits.

One half of the year?

Irvin B. Charne:

At the end of one-year or a little less than the year, in April of 1968, under which he had been sent away, July 24th of ’67 and April of 1968, the Department issued its order saying that this could be extended for another five-year period.

Now did you say a judge has to confirm that or what?

Irvin B. Charne:

Yes!

Then the Department applied to the County Court of Waukesha County to confirm that orders.

Same judge of the recent case?

Irvin B. Charne:

And goes it back before the same judge but it turned out the judge was not there and someone else was filling in for him, so another judge then heard the matter and there was a hearing on July 23 of 1968, on the order of the Department to extend him.

Warren E. Burger:

By this time, he had counsel did he not? This is when he had the lady lawyer.

Irvin B. Charne:

Yes, he had the lady lawyer on July 23.

Mrs. Naft(ph) who —

(Inaudible)

Irvin B. Charne:

Yes, he did Your Honor.

He had counsel and he pleaded guilty, through the original offense and it does not, the record does not indicate why that counsel was not called at the time he was actually sentenced.

Warren E. Burger:

But the hearing which came after the guilty plea, he was uncounseled, is that not right?

Irvin B. Charne:

If there was a hearing, Your Honor.

Yes.

Warren E. Burger:

They refer to it sometimes as a hearing but let us call it the occasion.

Irvin B. Charne:

Yes.

Warren E. Burger:

The occasion, when that he was informed where he was going to be sent.

There was no counsel present.

Irvin B. Charne:

That is correct Your Honor.

According to the order of the Court, that is the only record we have, that is the Court’s order and it does not recite the presence of any counsel for him.

It says that the defendant appearing in person.

Now, when I gather, he was extended for five years until what date?

Irvin B. Charne:

Yes Your Honor.

He was extended for five years which would have made it 1973.

However, he was paroled this year earlier, in March of this year, he was paroled.

So at the present time, he is on parole.

At the time when he was brought back for this hearing to confirm the extension order of five years, he was there represented by Mrs. Naft.

May I just interrupt you once more?

Irvin B. Charne:

Yes.

Do I understand you would say that at the end of these five years suppose he were recalled from parole, could be another five years?

Irvin B. Charne:

Oh, yes!

It is very clear.

He could spend the rest of his life.

There is no time limit except that there are five year increments and it must be confirmed by a Court.

Warren E. Burger:

The extension requires a finding; I understand that he would be at danger to society if they released him, is that it?

Irvin B. Charne:

Yes.

That is right!

That in the opinion of the Department his release would be dangerous to the public.

Warren E. Burger:

If you know in those extension proceedings is the subject represented by counsel usually?

Irvin B. Charne:

I believe that he is, Your Honor.

I know that the Wisconsin Supreme Court has said he should be.

There was a case in Wisconsin Huebner case which the Court set out the procedural requirements and clearly indicated that person is entitled to counsel and it should be represented by counsel.

Warren E. Burger:

Is that Wisconsin case cited in your brief?

Irvin B. Charne:

Yes it is Your Honor.

Warren E. Burger:

As I see it Huebner?

Irvin B. Charne:

That is right Your Honor.

Has the Supreme Court laid down, any standard to prove?

Irvin B. Charne:

Well, they talk about dangerous in this Your Honor but they have not really –, I think explained what dangerous means other than it does not necessarily mean physical harm.

They point it —

it has to be – a damage because as sexual elaboration?

Irvin B. Charne:

I do not believe so Your Honor.

I do not believe that it is limited, the statute certainly does not say that and I am not aware of any Wisconsin cases.

It says it must be limited to sexual problems.

Thurgood Marshall:

This hospital was, I think you said as the hospital or at least on these two should prohibit?

Irvin B. Charne:

No, at the time when he was sent there, Wisconsin had no separate facility, to sexual deviates.

The appendix to the respondents brief here points of one of the problems in Wisconsin of getting money to build an appropriate facility.

They did not have it and they –

Of any kind in there?

Irvin B. Charne:

Well, it is questionable with the case history in Wisconsin would indicate that some of these people had group therapy.

Irvin B. Charne:

And that was considered sufficient treatment.

Now that this question of treatment for —

Just a prison?

Irvin B. Charne:

Yes sir.

It is prison, it was the State prison and according to —

Nobody has ever been release as to having recovered?

Irvin B. Charne:

I do not know Your Honor.

I know that Mr. Humphrey was paroled.

He is on the parole at the present time so apparently they thought it was all right to release him.

Now, whether they were tried exercise continued to control, when his time was up I do not know.

This extension of one year is predicated upon the premise the person has not recovered?

Irvin B. Charne:

Yes.

It is an extension of five year.

In five year increments.

Right!

And when you say that this is just a prison, does this mean everybody just gets extended because there is no treatment and no recovery in the (Inaudible).

Irvin B. Charne:

No, I would not say that is correct Your Honor.

Apparently, either if the Institutionalisation itself or the group therapy sessions that are held.

For some reason, persuades the official that as to this man for example, they could release him.

So in their mind, something happened whether it actually, whether there is a difference or not.

I am sure that Mr. Humphrey would not agree that he received any treatment.

I think in his papers that he filed in this and the Lower Court –

(Voice Overlap)

But did not agree on anything, that he needed anything.

Irvin B. Charne:

That is right Your Honor.

I am sure that is true.

Well, what would be the basis upon which they could terminate parole?

Would it has to be a Sexual offense?

Irvin B. Charne:

No!

I know that if he has parole conditions, suppose — I know of the case, where a man was found drunk and driving.

Irvin B. Charne:

Now, you are not suppose to drink when you are on parole and if you are found drunk that is the time —

Thurgood Marshall:

So in other words, the termination of the parole is on the grounds that any prisoner on parole might be terminated.

Irvin B. Charne:

That is my understanding Your Honor, yes!

Warren E. Burger:

And does this record, I suspect that does not the two if you may know, does it reflect whether there are psychiatric facilities or clinical psychologist at the Waukon prison?

Irvin B. Charne:

I believe there are some psychiatrists on the staff and also some psychologist, social workers on the staff that are there and Wisconsin now has recognized the need for additional treatment.

I think as the respondent’s brief indicates commencing in this year, in 1970, people are now being committed to what is called the Central State Hospital which is an Institution for the criminally insane in Wisconsin.

That is a change and the Wisconsin Department recognizes the need for a special Institution for these types of offenses but they do not have it yet.

Well, in Wisconsin, there is a General State Prison?

Irvin B. Charne:

Yes, it does.

And this is not it?

Irvin B. Charne:

That is it!

There was a place where this man was sent — was the maximum security Institution of the State of Wisconsin.

With the walk on prison is the place where appellants go.

If his parole were to be revoked, do you have any idea where he would end up now?

Irvin B. Charne:

I do not know Your Honor.

I know that the recommendations were that those people who were in Waukon at the time that they transferred the new commencements went to the Central State Hospital but they said that those who had started in one place would continue there.

Now, I do not know what would happen to him if he was sent back, where he would be sent?

I believe that that is an administrative function by the Department.

I think, I had gotten in my chronology to the point where the Department had asked to extend him for five years and it came up for a hearing and he was then represented by Mrs. Naft who was appointed by the Court representative.

I think being indigent at that time.

Mrs. Naft advised him that he should not cooperate with Court appointed psychiatrists who were present in Court on the day of the hearing and said she intended to raise the constitutional issues.

The Court ask for her to file brief sentence and that was agreed a brief in schedule were set up and then apparently nothing further was heard from Mrs. Naft.

The Court record indicates that the judge wrote a letter to her and said if we do not hear from you we are going to conform this order and then the next happened is, in November the order was entered.

November 20, 1968, Judge Björk who was the substitute judge signed an order, confirming the extension for five years and in his order which is found in the appendix on page 14, he recites the fact he had expected to get briefs.

And he says the matter having been adjourned for the purpose of filing briefs to support their respective positions to the state in the defendant and no briefs having been filed and the Court having directed correspondents to Mrs. Naft dated October 15, 1968, advising Mrs. Naft Smith that the absence of the filing of briefs and any affirmative acts for and on behalf of the defendant with regard to this matter, the Court would presume that the defendant did not intent to offer any proof as to its condition and the order would stand and accordingly, he confirmed the orders.

So here you have a man represented by an attorney who did not do anything at the hearing, no cross examine, they were no witnesses presented as to the state position and then she set on, I am going to argue this on a constitutional basis and she did not file any brief.

So it is our position that-that type of representation is equal to nothing.

Warren E. Burger:

Do you include in your claim in effect to the assistance of counsel, the advice given to your client and not to cooperate with the doctors?

Irvin B. Charne:

No! I do not, Your Honor because I think that that — there maybe a basis let us say, it is up to the State to show this man’s condition.

And this, according to the state order, they claim that they had had a previous psychiatric examination of him, they see it on the records and files based on his commitment, they believe he is dangerous.

Irvin B. Charne:

So I think that they could come into Court based upon what they have and show to the judge, here is the reason that we think this man should be continued and it is not incumbent upon the defendant to come into Court on the day of the hearing that two strange doctors brought in by the Judge and expect the doctors to do a good examination in a short period of time while you are waiting for this case to be heard.

And I say that I do not think that the man has the right to have his own psychiatrist come in under the statute.

Warren E. Burger:

Do you think the judge just offered him a psychiatrist of his own choice?

Irvin B. Charne:

The record really does not indicate.

Warren E. Burger:

But either your brief?

Irvin B. Charne:

Statute says that.

The statute says that he is entitled to it.

I am not sure that he asked for that, but the record says that there were two doctors there who had been appointed by the Court.

Why they were there does not appear and who they are represented does not appear.

And in any event, he did not see them.

Warren E. Burger:

He did not have to make provisions or the judge could appoint him?

Irvin B. Charne:

It says that the judge should appoint psychiatrist that the man has the right to be examined by a psychiatrist of his choice and that the Court will —

About the judge?

Irvin B. Charne:

No!

I do not think it does, Your Honor.

I do not know what is the basis of having these two doctors there was.

Unless there was something in the record that we do not have it, in case somebody asked for him.

I do not know what they were doing there.

Warren E. Burger:

Here, I am just reading from your brief on page 5.

Irvin B. Charne:

Yes.

Warren E. Burger:

There is a statement about the 20:48 down on advice, the court appointed the counsel.

Petitioner here is to submit to an examination by a doctor or a psychiatrist of his own choosing prior to the hearing.

Irvin B. Charne:

Yes sir!

Warren E. Burger:

Prior to the hearing?

Irvin B. Charne:

Yes!

He did not ask to have the judge appoint a doctor for him.

Warren E. Burger:

Well, it was more than his not asking.

He refused to cooperate by selecting a psychiatrist of his own choice and submitting to examination and apparently, he was going out, not of his own choice but because his lawyer.

Irvin B. Charne:

Yes!

Warren E. Burger:

At that time, advised that he do that.

Irvin B. Charne:

I think the line, would refuse to cooperate is the judicial language act, when you are asking me, You Honor whether I consider that to be Court advise or whether I would base my charge of lack of adequate representation on that.

I would not say that, that was because I am not sure that the lawyer was improper in directing him not to have a previous examination.

I do not know what the result of that would have been.

I am not claiming that, that is the kind of error.

In any event, he was extended for five years and then after that extension, he then commenced the series of procedures which has brought him here.

He applied to the Wisconsin Supreme Court in October of 1969, he filed a petition, there for writ of habeas corpus and it was denied.

He was without counsel, it was denied without hearing and without even asking for response and then he went to the United States District Court and finally, we got him out of this Court.

Now, what are the points that we wish to phrase with you regards to his treatment, I think.

The first thing, I want to point out is the difference or the disparity between the treatment of man under the Wisconsin Sex Crimes Act and especially, I say those which are not the mandatory, not rape, that thing but any other crime where the judge find that maybe sexually motivated.

Does he have a hearing in federal habeas in District Court?

Irvin B. Charne:

No, he did not have a hearing Your Honor.

There was a response filed by the State whether it was denied without a hearing.

Just on the plea.

Irvin B. Charne:

Yes Your Honor.

And absence of hearing, is that a question that was raised in the court of appeals?

Irvin B. Charne:

No Your Honor.

This case is very peculiar posture.

The trial Courts denied him a certificate of probable cause, so he could not appeal.

Then he filed an application for certificate of probable cause to the Court of Appeals with Seventh Circuit and that was denied.

And then he filed the petition with this Court and it was granted, so that this Court has never been heard by them, this case is not been heard by the Court of Appeals and there was no hearing in the District Court.

Warren E. Burger:

So what would you, as of now, what do you suggest as the much expeditious way of unraveling this?

Irvin B. Charne:

Well, it is partly, that it is my feeling that the Wisconsin statute on its face which I think we can look at without going into the factual things, is improper, is unconstitutional.

And that the Wisconsin’s Supreme Court has so interpreted that statute as to be in conflict with this Court’s decision with the Baxstrom case.

In the Baxstrom case which was the case in New York where you had a person who had been sentenced on an assault charge.

I think it was a second degree assault.

So certainly, you have some question of physical danger there.

A man was sentenced I think it is about two and-a-half years and toward the end of his sentence, they filed a petition saying this man is insane.

It requires his mental treatment.

So then there was a proceeding and he was committed to an effect a criminal type facility for treatment and it came to this Court and this Court compared that treatment that he got with what a person under a civil commitment was entitled to in the State of New York and said that the statute was unconstitutional because that person should have been entitled to his same treatment a person civilly committed guy.

Now, I think that is very applicable to the State of Wisconsin.

Irvin B. Charne:

Here we have a person who our man, he get sentenced on a crime contributing to the delinquency of a child and then at the end of one year which is the maximum for which he can be sentenced, he is again committed.

Now, there is a great difference between that and what would happen if he were civilly committed because he is not entitled to a jury trial and under the Wisconsin Mental Health Act which we set forth, every person in Wisconsin who is convicted civilly is entitled to have that question determined by a jury.

And under the Mental Health Act, would it be committed as sexual —

Irvin B. Charne:

Under the Mental Health Act, he would be committed if he were mentally ill, infirm or deficient.

Mentally ill, it means a mental disease requiring care for the welfare for yourself or other community.

Thurgood Marshall:

So that might include on sex elaboration?

Irvin B. Charne:

Yes, I think it might include in. Now, the Wisconsin —

Thurgood Marshall:

Under that he would have a jury trial?

Irvin B. Charne:

Yes, we would, Your Honor.

Thurgood Marshall:

Whereas under the Sex Crimes Act he gets neither that nor any other processes except that you described here?

Irvin B. Charne:

Yes! He is entitled to reexamination under both the Mental Health Act and Sex Crimes Act but even there, there is a difference.

Under the Sex Crimes Act, you are not entitled — ask for a reexamination until you have served the maximum period for which under the crime.

In other words in our brief, we say if you are sentence for rape for example, under the Sex Crimes Act that is a 30 years maximum.

You cannot ask for reexamination on your mental condition for 30 years.

Now, under the Mental Health Act in Wisconsin, when you are committed, you can ask for a reexamination at any time after recommitment and you got a hearing and a jury and then you can ask for reexamination but you cannot require it, more frequently than once a year.

Now under the Sex Crimes Act, you have to wait before they serve the maximum and then you can ask for a reexamination and after examination, you do not get a jury trial.

In addition —

Let me sure of one thing though, had he pleaded not guilty to the original charge, he would not have had a jury trial?

Irvin B. Charne:

Yes Your Honor.

On the criminal charge, no question, he would be entitled for a jury trial.

Warren E. Burger:

And if he had been found guilty by a jury, all of these procedures would have been — could have been wrote.

Could they not?

Irvin B. Charne:

Yes Your Honor.

The thing the jury though would not pass upon the question of whether the offense was sexually motivated.

Warren E. Burger:

As per the judge.

Irvin B. Charne:

This is something which the judge adds onto the criminal proceeding, where you have a criminal charge levied against you, the issues are “did you commit that offense?”

Here the answer is “yes!” I gave beer to a minor, I am guilty.

Well, this sentence is just a matter of (Inaudible)

Irvin B. Charne:

So then you have the question of exposing him to this new —

The sentencing procedure — it is the sentencing part of that but —

Irvin B. Charne:

It is not, it is in the sentence that is in part of it.

But it is pleaded guilty or convicted by a jury, this process is applicable?

Irvin B. Charne:

Yes!

Warren E. Burger:

Was this Wisconsin statute passed about 30 years ago and we have the influx of sex Psychopaths statutes, do you have it all?

Irvin B. Charne:

I do not know, Your Honor.

I know it was one of the early statutes —

Warren E. Burger:

That long standing though?

Irvin B. Charne:

Yes!

It is a long standing.

Your Honor, in connection with that, I am sorry that I did not get a hold of this until just a few days ago.

This is an excellent book, ‘The mentally disabled and the law,’ which is published by the American Law Foundation in Chicago University of Chicago press and has a very good discussion of this whole area, I would cited it more sensibly in my brief.

I had known about it but I just got hold of it.

Warren E. Burger:

You may if you wish call our attention that time, except from the fact.

Irvin B. Charne:

I appreciate doing that.

I think Your Honor if I have few minutes, I will reserve them.

Thank you.

Warren E. Burger:

Very well Mr. Charne.

Mr. Frederick?

George L. Frederick:

Mr. Chief Justice and may it please the Court.

I represent the respondent here, Warden Cady, Warden of Wisconsin State Prison.

Perhaps it should be well to begin by dealing with some of the questions that we are put to Mr. Charne.

The question on the section as far as discretionary commitment is concerned is dealt within Section 97502, which provides that if their sex crime is defined there is one in which the desire for the sexual excitement existed in the commission of the crime and provides that the Court may take testimony after conviction if necessary, to determine that issue.

Warren E. Burger:

Do you agree that does is not the crime he was charged with?

George L. Frederick:

Let me clarify that Mr. Chief Justice.

The way the charge is booked is Section 94715, Subsection 1, Subsection 80 which is contributing to the delinquency of the child.

The Sex Crimes Act then comes in to play Your Honor, just as or the closest analogy would be the habitual criminal statutes which we have in Wisconsin Section 939.62 where the enhanced punishment as a repeater comes into operation not as an additional charge but as an enhancement of punishment but there is a separate finding and the defendant is given notice before he pleads to the offense.

And of course, this is our contention precisely that — I have got a stand here and I cannot say anything outside the records but it is an inference I believe, Your Honor, from the Heubner case and the other cases as I cite in my brief such as Rippon (ph) that the practice was when this defendant entered his plea of guilty then he was informed that he might be subjected to the disposition under the Sex Crimes Act.

Now, the purpose for the discretionary element on these crimes other than the three mandatory ones is this.

If you charge a man with incest why is necessary to take additional testimony, on that to show that sexual excitement existed in the Commission of the Crime.

On the other hand, when you charge a man with contributing to the delinquency of a minor, then it is after proposed to take the testimony and —

Suppose that he is charged larceny of a watch, may this feature then be triggered?

George L. Frederick:

In larceny of a watch, Your Honor would be treated like this.

That would require a separate hearing to show that this particular individual was one of the small group that god sexual gratification from stealing the property of others just to some people —

Like I gather that Mr. Frederick almost this may be triggered by conviction for any offense, any crime is that?

George L. Frederick:

Except that the Courts of Wisconsin supreme Court, Your Honor has given the –, what should I say, a telegraph to prosecutors and judges that by the Heubner decision that you are not going to be able to stray too far-field on this.

They are going to require some direct substantiation that the crime involved was in fact, motivated by a desire for sexual gratification.

I think as we get further and further in field.

It becomes harder to show.

Well, Mr. Frederick, Justice Brennan’s question, however so far as the statute goes, has to be answered yes.

George L. Frederick:

Yes!

Except for homicide and attempted homicide?

George L. Frederick:

Yes, Your Honor.

Those are the exception made by the statute.

George L. Frederick:

I agree.

And my question is, let us assumes the prosecution for shoplifting and the psychologist, psychiatric tell us that we do this shoplifting is motivated this statutory basis or for arson.

And let us assume a conviction for shoplifting, then what is it that triggers this extra procedure, does the prosecuting attorney does it or does the judge do it on his own motion or –, what is it that gives the Court, the idea or the motivation or the triggers that affects the procedure in this particular shoplifting case as against some other shoplifting case that this one might come under this Wisconsin Sex Crimes Act?

George L. Frederick:

All right, Your Honor, now —

That is not all clear for me, it is the statute or from what happened in this case?

George L. Frederick:

Now, in 1967, Wisconsin adopted the manifest injustice test for acceptance of the plea of guilty.

At that time of course, we began to attempt to comply with federal rule 11 and that the trial judge had to ascertain that the acts the person allegedly committed constituted the offense.

So in the course of adducing that information on a guilty plea, this information might welcome to the trial judge’s attention or you are quite correct, the district attorney could call it to the judge’s attention and surprisingly enough Your Honor defense attorneys may well call this to the Courts attention because —

Warren E. Burger:

How about probation report?

Could that trigger the pre-sentencing part?

George L. Frederick:

Pre-sentence report could and of course on a trial on the merits, then it would become or it might become quite obvious that —

That might not at all, that might be evidence that it trigger the person, so much from our Department store.

George L. Frederick:

That is true.

And before the disposition under the Sex Crimes Act could be sustained, Your Honor.

There would have to be a finding made on these by the judge on the record that is the necessary sexual gratification in the connection with the crime was present.

Well, what is not clear to me still is what the motivation, what the trigger is?

What the source is of this extra hearing after plea of guilty or a conviction.

George L. Frederick:

Well, let me be frank with you then, Your Honor that the same reason is why I always charged the repeaters statute and the guys down the hall in the prosecutors office, never did.

It was my right of discretion in effect whether to charge a repeater or not.

You mean there are some prosecutors who charge this with respect to every event?

George L. Frederick:

None!

This person is guilty of stealing a horse and on top of that, I am charging that he was sexually excited by stealing the horse?

George L. Frederick:

All our prosecutor can do in Wisconsin Your Honor is to charge the principal offense.

In this case contributing, and then that if and only if the trial judge asked for some recommendation as to disposition is the defendant likely to be subjected to the act and in Wisconsin, we have the rule that the prosecutors recommendations are not at all binding on a trial judge.

Every defendant knows that, so we have very little justice in the repeaters statute, very seldom is the enhanced sentence given.

What about the repeaters statute, you have an objective test does this person have a record of prior conviction?

There is no such objectivity, under this statute.

I still do not understand what triggers this post conviction procedure, if anything?

There is something on that.

Let me be a little more specific.

Is it automatic –, almost in practice when there is a charge of contributing to the delinquency of a minor.

George L. Frederick:

No!

It is not automatic Your Honor.

And what triggers it is, he has a based I think set out from in Torpy which I cite in my brief.

The procedure is in Wisconsin as every place else in the union that you often charge less than the facts warrant and this is a very good clue that the judge of course, if the principal charge was in fact one of the mandatory offenses and the prosecutor moves to amend it because he says, Your Honor I feel that I cannot maintain my burden of proof.

This would be a clear instance of when the judge would be alerted to take discretionary action under that provision 97502 of the statutes.

So that Justice Blackmun, is a frequent case and what is the situation in the Torpy case actually, where the conviction was also contributing.

That I am sure alerted the trial judge that this person should be considered for examination.

I want to emphasize this, the trial judge — the termination at that point is merely to have this examination and then the –, as I pointed out in my brief in the note 1954.

Wisconsin law review, you know the statute had been in operation only couple of years, it was enacted in ‘51 —

Warren E. Burger:

This statute?

George L. Frederick:

Yes!

Warren E. Burger:

‘51?

George L. Frederick:

Yes, ‘51 sir.

Warren E. Burger:

Did you have something like it before 1951?

George L. Frederick:

We had a statute on the books Your Honor, from 1947 under which there was no commitment.

It was a civil sexual psychopath statute.

George L. Frederick:

So the —

Then where do you send for examination?

George L. Frederick:

The examination, Your Honor, can be conducted at anyone of several places.

It can be conducted as an outpatient while the man is at large.

He can be sent to the Sex Deviate Center which up until January the 1st, 1970 was at the state prison of Waukon.

He maybe examined at a facility in Milwaukee County that has been approved by the State Department of Health and Social Services or he can also be examined at other various sundry hospitals that have met the requirements —

Well then, if I understand you that.

The judge decides, he is going to find out.

George L. Frederick:

Yes!

So he then orders —

George L. Frederick:

The examination.

The first step is the examination?

George L. Frederick:

Yes!

Now, after the examination is completed then what else?

George L. Frederick:

That was the point, the statistics — since our program is been on operation show about a 50-50 breakdown after the examination.

About half of the people are determined to be not in need of treatment and not suffering form the statutory phrase aberrations and are disposed off under the criminal code, regular sentencing provisions.

That if the judge gets to the Court from right where the Institution is and this has — this fellow does not — can the judge sentence him or in this case if that happened, if it got up to a year and that is then the end of the case, is that it?

George L. Frederick:

That is true!

Exactly.

Now, but now that the report is, you have to think this fellow needs — then what happens?

George L. Frederick:

Then at that point, Your Honor, there is a triggered second round in which the defendant has the right to counsel again, his own statutory, his own psychiatrist, not the States.

Now all are paid for by the State.

And they have a hearing to determine if in fact the recommendation of the Department should be followed.

The burden is on the State to prove that by the civil burden preponderance of the evidence–

Does it bring in the people who are prepared to report?

George L. Frederick:

Yes!

From the Institution?

George L. Frederick:

Judge takes this one.

I see and then there subjected to cross examination?

George L. Frederick:

That is true.

And then the accused, then has, he can put on his own witnesses is it not?

George L. Frederick:

He can put on his own experts.

And then what is the final determination the judges want — yes, he does need them or no he does not —

George L. Frederick:

He does not (Inaudible).

Thurgood Marshall:

(Inaudible) it says after he is pleaded guilty, he was committed to the states probably welfare — what does that mean to you?

George L. Frederick:

Your Honor, what happened here was he was using his form of the –, they have a standard form of the order that he had been using up until that time.

Early in January 1967, the Heubner case was decided and that put in this requirement for a hearing.

And as I said, all I can do is make the inference that three months after this decision came down, the defendant either got a hearing or made a satisfactory waiver of his right to the hearing and I do not think —

Thurgood Marshall:

Do they have to do (Inaudible) thing?

George L. Frederick:

Yes.

Not after it Your Honor.

At the time of this appearance for commitment when the order –, the first order.

Thurgood Marshall:

This two pages here does not show — I have nothing hear that even suggests that there was a hearing?

George L. Frederick:

That is true.

Thurgood Marshall:

Was there or was there not a hearing?

George L. Frederick:

You want me to tell you? Go outside of the record, should I tell you?

No!

Do you have anything on the record that disputes that?

George L. Frederick:

I have nothing on the record to dispute that.

Thurgood Marshall:

Well it seems to me that if the State department had decided that he did not have mental aberrations?

He would certainly want this?

George L. Frederick:

That is correct, Your Honor.

We cannot deceive that much, the Department did recommend 3 months.

Warren E. Burger:

Or maybe you do not know who in the Department made that decision.

It could be an office clerk.

George L. Frederick:

No, I can only tell you what the procedure is in the usual case but I could not swear that it was followed in this case.

That is true, Your Honor.

Instantly, this statutory word that may have troubled you at aberrations operations was a word devised by the Department to make this sort of distinction, Your Honors.

The Department of course has been studying this programs, since the end operation could be one and they gradually flushed out the criteria, so aberrations means essentially this.

Those who have sexual offense in the broad sense stands from the, what should I say, their environment, for example, it is no secret that in certain areas of Wisconsin, they incest between father and daughter, is not such a shocking thing.

George L. Frederick:

As strangely enough those cases would be not within the purview of the statute as the Department has interpreted their criteria.

What they are trying to do is to deal with the individual whose own psychological make-up as best that can be determined and is imprecise as it is leads them to commit sex offenses.

I gather as far as we know this person never had any treatment of any kind, that it is.

George L. Frederick:

There is no record, Your Honor to show what it is –

I think he was released on parole?

George L. Frederick:

Yes.

All I can do is to cite you to the cases in my brief Burby versus Burke (ph) and if you —

Well, I gather you have a parole board here?

George L. Frederick:

They have a special review board under this statute, Your Honor who deals especially with this class of persons.

Well, I wondered on that, we can have no idea of the basis on which he was paroled.

How does that, that special board determining that he is now cured of aberrations?

George L. Frederick:

No Your Honor.

The question is —

They are not sure there is still a lot of danger to the public?

George L. Frederick:

Yes!

The criteria for a release is set out in section 97514, and it is dangerous to the public because of the person’s mental or physical deficiency disorder or abnormality and that has been construed those last three words they relate back to the aberrations.

Well, the finding must — when it was extended the finding must have been that he ill —

George L. Frederick:

Yes!

And now, during the extended period, that is now a finding, that it is no longer ill.

George L. Frederick:

That is true.

Now, on what does that predicate?

George L. Frederick:

I would not assume now it is predicated Your Honor, on the results of the test that are maintained under the statute.

Everyone has to be examined once a year and if he is not examined, he goes before the Court again.

When he has been extended once like this petitioner, he goes before the Court every six months if he wishes for an extension.

So I would assume that this petitioner, like everybody else similarly situated was afforded the opportunity for treatment and the Department felt that the things had progressed to the point that he was no longer dangerous.

So if the state possessed a state hearing in the habeas corpus of District Court?

Do you mean that he would have a hearing in this case, he would not be fishing in the dark ?

George L. Frederick:

That is why I feel like I am operating here with one hand type, like that.

Well, how do could we (Inaudible)?

George L. Frederick:

We did not resist it.

George L. Frederick:

What happened was this.

When this lady attorney did not file the brief, the judge apprised the man —

Well, I am speaking that he was the representative of the Federal Court, does he?

George L. Frederick:

No!

He filed a petition for habeas corpus.

George L. Frederick:

That is true!

And the state resisted it?

George L. Frederick:

We did.

And it was dismissed?

George L. Frederick:

That is true.

There was never been in the hearing.

George L. Frederick:

There has never been an evidentiary hearing.

None of the things we are discussing this morning, might have been flushed out —

George L. Frederick:

Yes, that is what I devoted first part of my brief to and of course I stand on those positions but I would not burden you more than here now.

Let me clear one thing.

As I understand you this to say in response to Justice Brennan’s questions, there is an examination every six-months under the sex deviant statute —

George L. Frederick:

Or after —

After a five-year extension of his term.

George L. Frederick:

No!

No, Your Honor.

It is, in this case, when the hearing was held at the end of the maximum time, he would have received had he been sentenced under the criminal code.

And he was continued for five-years, then every six months thereafter, he has a right to have another hearing before the court and department must justify his continued control by the department.

Harry A. Blackmun:

Are you saying during the five-year period?

George L. Frederick:

Yes Justice Blackmun, but I should point out this, you understand that everyone under the sex crime was handled that under the Sex Crimes Law, has no minimum sentence so to speak.

In other words, if you go to the facility and they decide a week later that you are done, you go out.

Either on parole or final discharge, you can do either one.

And your parole and your connection with the Department is ended whereas of course, everyone else who goes to the state prison is sent there for a year and must pay the half the maximum before they are eligible for the parole.

If your sentenced for 30 years, you still come up for a parole within a year at the most under Wisconsin Law.

Incidentally, this maximum period is computed by like much as they do in federal, you take the statutory good time and deduct it from the maximum sentence, so that on a recharge of 30 years, you would do at most 16 years and 3 months.

Now —

Warren E. Burger:

Do they have to wait for an examination for that long under the statute, would not they?

George L. Frederick:

Of course, Your Honor –

Warren E. Burger:

It comes under special motion on special order of the court?

George L. Frederick:

You have the same right of course as everybody does to petition for a writ of habeas corpus and I think that here, it would not be just like the usual sentence where your sentence has not expired yet because if you could show that you had not been afforded treatment and so forth, the state would be in their election of its duties under the statute and the writ would lie just as very similar to the provision 18 US C4517.

If I could leave you with one fraud, Your Honors and that is this what we have tried to do here under this Sex Crimes Statute is to utilize psychiatric data.

Even though what is the best.

We can believe that there could be much worse in the existing system of incarceration where you put a man in prison and lock him up and leave him there.

Here, there is an obligation on both parties, the state to provide treatment and the defendant to seek out treatment and I think this is important because experience has shown on that this man are often poorly motivated for treatment and here, they have a definite incentive to be treated and I think that it is about as good a system as any for dealing with this sort of difficult problem, much is like faces us with alcoholics and drug addicts and so forth, where there is no real question of insanity.

It is best a personality dis-function that he has justified the commitment.

The other difficult part of this problem, Your Honor, is the jury trial question and I say it is difficult in the sense that if we require a jury trial for these proceedings, I wonder where it is we draw the line after that, because there are many statutes under which a man is deprived of his liberty without jury trial.

For example, under Wisconsin statutes, one who has tuberculosis, one who has venereal disease, one of that has typhoid fever.

Those who do not support their families might be incarcerated summarily for up to six-months, so I think it is a very real question as to what point we are going to extend the right to jury trial in these collateral proceedings Wisconsin has never required that under the constitution.

It has always been a statutory right to have a jury trial on insanity proceeding.

Thank you.

Warren E. Burger:

Thank you Mr. Frederick, Mr. Charne?

Irvin B. Charne:

Yes, Your Honor.

Warren E. Burger:

You have one minute left.

Irvin B. Charne:

I am just going to respond briefly to the question of what triggers this proceeding because my belief and understanding is that nothing may trigger it other than the judge’s own intuition or prior knowledge of this person or the fact that the community is presently angry about a certain type thing, so the statute does not require any basis and I say the statute does not require a hearing on the question of whether the person is sexually motivated and this record does not show any such hearing.

The Wisconsin Supreme Court in the Buchanan case, that we cite, I say has laid down —

(Inaudible) very difficult question do we have some king of record — .

Irvin B. Charne:

Of course, Your Honor.

Yes, no question about that and I –, that is very difficult for the District Court.

Your Honor, I was in the law court and Federal District Court, know how hard is to examine all these things and pick out the good ones and there was no lawyer who examine it and the judge upon the issue that the petitioner himself set forth the judges thought that this was not a meritorious case.

Warren E. Burger:

(Inaudible)

Irvin B. Charne:

That would be very much easier.

This petitioner on parole now?

Irvin B. Charne:

Yes, he is Your Honor.

And that if he will then commit to a commitment, would he return to the old prison, or will he go the mental health?

Irvin B. Charne:

Judge, I do not really know the answer to that and I believe there is a big chance that he goes back to prison.

And even —

The Wisconsin takes here a position —

Irvin B. Charne:

I do not know.

As (Inaudible).

Irvin B. Charne:

They say that he would go to the state central hospital.

Your Honor, which is a Institution for the criminally insane.

It is a penal mental mental Institution.

It is not where people go on sooner.

Warren E. Burger:

Was that in existence of the time he was convicted in ’67?

Irvin B. Charne:

Yes, he was.

That is typical for a institution to which civilly committed people —

Irvin B. Charne:

Yes, the people.

Yes, I think we point it on our brief that a person who is civilly committed; there is no provision for sending him to that institution.

He may go to a hospital if he is civilly committed.

Warren E. Burger:

Mr. Charne?

(Inaudible) We have here the wrong respondent.

Irvin B. Charne:

Well, I think that maybe true although in the case of Jones v. Cunningham I think we cite, where there was a young man was on the parole.

It was pointed out the fact that he is on the parole, we are not making the case moot and I think really here, the respondents is the State of Wisconsin.

The Attorney General, the Supreme court of State of Wisconsin, the whole prison system and the welfare is under one direction, so he is (Inaudible).

It arises from the fact that he was paroled in March of this and the writ was granted in March also.

Oh, yes they had file the petition here before?

Irvin B. Charne:

Yes!

Oh yes!

(Inaudible)

Irvin B. Charne:

The petition has been filed last year.

I think we have a case of those circumstances.

Warren E. Burger:

Mr. Charne, you acted as our request and by the appointment in the court in this case and on behalf of the court, and I want to thank you for your assistance, not only to your client but your very effective assistance to the Court in the case today.

Irvin B. Charne:

Thank you very much.

It has been a honor to be here.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.