Loper v. Beto

PETITIONER:Loper
RESPONDENT:Beto
LOCATION:Cold Storage Warehouse

DOCKET NO.: 70-5388
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 405 US 473 (1972)
ARGUED: Jan 13, 1972
DECIDED: Mar 22, 1972

ADVOCATES:
John T. Cabaniss – for petitioner
Robert Darden – for respondent

Facts of the case

Question

Audio Transcription for Oral Argument – January 13, 1972 in Loper v. Beto

Warren E. Burger:

Arguments next in Number 70-5388, Loper against Beto.

Mr. Cabaniss you may proceed.

John T. Cabaniss:

Mr. Chief Justice and may it please the Court.

This case involves the constitutional rights of a criminal defendant in circumstances where he has been affected by a collateral use of prior convictions, presumably void under Gideon.

In this case, the collateral use was impeachment of testimonial credibility.

Loper was convicted in November of 1947 in Harris County Texas of the offense of statutory rape of his eight year old stepdaughter.

At his State Court trial, the prosecution’s witness, the only one to identify Loper as the violator was Betty Fay Dorothy and she indicated he was guilty, he did it.

Otis Loper took the stand to testify in his own defense.

He denied complicity, denied guilt of the offense and on cross-examination, the State was allowed by the Court to elicit from him details regarding prior convictions that he had suffered in the States of Mississippi and Tennessee.

There were four prior felony convictions in all and the State brought out the details as to the term of those offenses, where they occurred, that they were all for burglary.

In the District Court the hearing below, evidence was introduced regarding these prior convictions.

This evidence consisted both of the testimony of Loper as for circumstances surrounding those convictions and also consisted of certified records that have been obtained from the Courts in those proceedings which reflected in most instances that the defendant had appeared in the person or he appeared in his own proper person or otherwise silent regarding the presence or absence of counsel.

It is Loper’s contention that the evidence thus introduced, un-contradicted by the State renders those convictions presumably void under the mandate of this Court in Gideon.

William H. Rehnquist:

Mr. Cabaniss, Judge Connelly found as a fact in the District Court that he refused to believe Loper’s testimony that he had not been previously represented?

John T. Cabaniss:

He certainly did Your Honor.

William H. Rehnquist:

In the Fifth Circuit?

John T. Cabaniss:

And he refused to believe anything Mr. Loper said, there is no question about that.

William H. Rehnquist:

So you are asking us to offset that factual determination?

John T. Cabaniss:

I am, Your Honor on this basis.

Other Courts have indicated in similar circumstances that it seems where the defendant, the one who is convicted introduces testimony to the fact that he did not have counsel, was not represented by a counsel and then he introduces evidence to corroborate that testimony, in this case, certified records of the State Court proceeding, we would contend that those records are sufficient to carry his presumption that he in fact was not represented by a counsel and he had not waived his right to counsel.

And that the Trial Court’s action in disregarding that, the fact that the burden then shifted to the State to prove that he had waived counsel, we believe that cannot be upheld, that is out contention.

Potter Stewart:

We have granted certiorari on this case that we give it a limited grant of certiorari?

John T. Cabaniss:

Yes sir.

You did, Your Honor.

There were seven points, in all there were six points I believe, raised in the petition for cert.

This is the only one upon of which the petition was granted.

The —

Potter Stewart:

Right and do you say this is the only one.

What is the — specifically as to the question on which we granted?

John T. Cabaniss:

The issue presented Your Honor is whether on the facts presented by this record.

Potter Stewart:

Are you reading this now from the petition for certiorari?

John T. Cabaniss:

No I am not.

Potter Stewart:

I am asking you to be quite specific, if you will.

John T. Cabaniss:

The — does the use of prior void convictions for impeachment purposes deprive a criminal defendant a due process of law where their use might well have influenced the outcome of the case.

Potter Stewart:

Under that question, it is not open to us to decide whether not the prior convictions were void, is it?

John T. Cabaniss:

Well Your Honor, I had believed that why —

Potter Stewart:

I have got to be of help to you not —

John T. Cabaniss:

It seems to me Your Honor that again we are proceeding in this case, we have throughout from the beginning proceeded on the basis —

Potter Stewart:

Much the way decided it — Taken case to grant certiorari on was whether not the use of prior void convictions for impeachment purposes violated the rule against Burgett against Texas, is that it?

John T. Cabaniss:

I will proceed to that question Your Honor.

Mr. Justice, excuse me.

Potter Stewart:

We did not decide the Taken case of whether or not the issue or to consider the issues of whether or not these prior convictions were void.

We limited the grant of certiorari, did we not?

John T. Cabaniss:

I am sorry I did not understand your question Mr. Justice.

Potter Stewart:

I see.

John T. Cabaniss:

I will proceed to the question of Burgett.

We have – we had utilized Burgett in the District Court and in the Fifth Circuit without success.

We had contended throughout that the Burgett rationale applies to Mr. Loper’s circumstances and that the use against him of the prior void convictions to impeach his testimonial credibility was a violation of that rationale.

Now, the State contends and the Fifth Circuit has held that we go too far, that impeachment, that Burgett itself involved enhancement of punishment and that impeachment of testimonial credibility is not — it goes only to credibility.

It is not merely so serious as enhancement which may add years of imprisonment to the sentence of a defendant.

But there are number of factors we have relied upon in asserting that Burgett is not so limited.

Most importantly, although Burgett did involve convictions of alleged in recidivist counts, it involved four prior convictions alleged and a Texas indictment.

The fact of the matter is that Burgett itself involved no enhanced punishment.

The evidence introduced indicated that the Texas conviction was void on its face.

It was — as our (Inaudible) was never introduced, the Tennessee conviction, it was introduced in evidence, was held to be presumptively void.

The Court withdrew all evidence of those and instructed the jury not to consider the prior convictions for any purpose.

The defendant Burgett was convicted and he was sentenced to ten years imprisonment, the maximum for the offense involved was 25 years.

So we submit that the constitutional precept that was established was on the facts of Burgett, not one that was limited to a situation where enhancement occurred as the State and the Fifth Circuit would have us believe.

Warren E. Burger:

Well, in the Burgett case what was the purpose of the introduction of the prior convections, let us forget the consequence for the moment, what was the purpose of their introduction?

John T. Cabaniss:

The purpose Your Honor was under recidivist counts.

Warren E. Burger:

Yes, to enhance the punishment.

John T. Cabaniss:

That is correct.

Warren E. Burger:

Now, whether the jury did or did not apply it that way is as you suggest is really not the issue, is it?

John T. Cabaniss:

The point, I would make Your Honor though is it seems to me that in the absence of enhancement, the result in Burgett was that the jury was aware in its deliberations upon the primary substantive issue of guilt of four prior void convictions.

Now, what difference does it make if that was done under enhancement counts or if it was done to impeach the credibility of a witness who took the stand to testify in his own defense.

If the convictions were void and the jury is made aware of those convictions then rationale applies to permit a conviction obtained in violation of Gideon against Wainwright to be used against a person either to support guilt or enhance punishment for another offense is to erode the principle of that case.

Potter Stewart:

The petitioner was the only defense witness, was he not?

John T. Cabaniss:

That is correct Your Honor.

Potter Stewart:

And daughter or stepdaughter was the only prosecution witness as to the —

John T. Cabaniss:

No, Mr. Justice.

The prosecution also put on medical testimony from a Doctor Weber (ph) which simply established that apparently an offense had occurred and he stated it was appeared to be relatively recent.

Potter Stewart:

And the — did the jury set the sentence here?

John T. Cabaniss:

I believe so Your Honor, 50 years.

Potter Stewart:

That might be of some importance.

John T. Cabaniss:

I believe the jury did make the sentence, Mr. Justice.

Potter Stewart:

But within what bounds of discretions, do you know?

John T. Cabaniss:

Two years to death.

Potter Stewart:

Two years to death and the jury said 50 years and then on the text of procedures the trial judge, the sentencing judge obligated to take the jury’s assessment of the sentence.

John T. Cabaniss:

Mr. Justice, I am not aware of the answer to that question.

Potter Stewart:

This case did.

John T. Cabaniss:

I believe that is the answer.

I think he was convicted by the jury and sentenced.

Potter Stewart:

The jury could have sentenced him to his — even on fact finding ability to a short term as two years?

John T. Cabaniss:

I believe that is the minimum in Texas for that offense.

Potter Stewart:

So it is your submission that both branches of Burgett are involved here and those — the finding of guilt and the imposition of the sentence, the enhancements of —

John T. Cabaniss:

The fact that it was harmful, that’s what Your Honor.

To proceed with the fact of impeachment, Mr. Chief Justice has raised the point that they were in an enhancement context, but we have tried to pull it out that we have a criminal defender who takes the stand in his own behalf.

His credibility is a material factor to his guilt or innocence.

If his credibility is attacked by evidence of prior convictions that are void under Gideon, such that the guilt was not there reliably determined, the argument must be made that any conclusion of untruthfulness by a jury of the impeached witness is equally unreliable.

So it seems to us to follow that the impeachment evidence of that nature tends directly or indirectly to support guilt by causing the jury to disbelieve the testimony of Loper and then proceed along the lines where the prior void conviction is used for that purpose then the defendant clearly under Burgett suffers anew from the deprivation of that Sixth Amendment right.

John T. Cabaniss:

Now we are supported in our conclusion as to the meaning of Burgett by a number of cases.

They are cited in the brief and they are applicable to impeachment not just enhancement situations, I note in particular Gilday against Scafati which one of the first to the First Circuit, was one of the first to — its opinion is particularly lucid.

Also the Ninth Circuit in Tucker against United States, I note that this Court on Monday of this week, disposed of that case by remanding in a situation where the sentence had been, I wouldn’t say enhanced, it was the maximum sentence, they had reversed because of the possibility of prejudice resulting from prior convictions there involved.

We are not disparaged by that case at all.

Potter Stewart:

Well, I should not think you would be.

John T. Cabaniss:

We are not.[Laughter Attempt]

The State —

Potter Stewart:

Do you think that case bears on this probability?

John T. Cabaniss:

No, Your Honor, except from the standpoint that I would certainly — I like the language about the sentence being based upon this information of the constitutional magnitude, I would like to utilize that one concept.

Potter Stewart:

Well, is not — in that case the Court of Appeals for the Ninth Circuit as you have just told us disagreed with the Court of Appeals for the Fifth Circuit in the present case.

John T. Cabaniss:

That is correct Your Honor.

Potter Stewart:

We did not indicate any disapproval that we have the Ninth Circuit’s view then went on to find it was harmless error in that case.

John T. Cabaniss:

The Ninth Circuit specifically decided that Burgett included impeachment, but did on the facts presented by that record to go on to determine that it was there harmless error.

Potter Stewart:

And we have affirmed the judgment?

John T. Cabaniss:

That is correct.

The State in its brief cites two cases that I must mention.

These cases are Harris against Nelson and Walder against United States.

These were impeachment cases and the State asserts that these can be relied upon as limiting the application of Burgett.

It should be kept in mind that this is not a case where the defense counsel is part of its trial strategy, interviews the invalid prior or interviews the prior convictions to soften the blow so to speak, that is often done nor is this a case for the record will show that Loper, to boast for his credibility denied that he had never been convicted of crime on direct examination.

The first time these convictions were brought out was by the State in its cross-examination and it is then on this basis that neither Harris nor Walder would conclude that Burgett would not apply to the impeachment context situation — Harris and Walder were both concerned with situation of perjury.

Warren E. Burger:

But there was no occasion in 1947, when this man was tried, I suppose for him to have any reason to challenge the nature of the convictions, was there?

John T. Cabaniss:

Not at all Your Honor.

The right was not yet decided and that is of course the reason why it would be fruitless to search the record for an objection on the constitutional basis here involved.

The District Court pointed that out.

Warren E. Burger:

But your contention is that when you are in the District Court now in 1970 or 1971, 1970 when you were there on the habeas corpus proceeding.

John T. Cabaniss:

1969, Your Honor, Mr. Chief Justice.

Warren E. Burger:

1969 was it, that at that time you do not have the burden of proving that the convictions were obtained without counsel, that you merely establish it by his testimony that he did no have counsel.

John T. Cabaniss:

Mr. Chief Justice, I did not mean to imply that the testimony of the defendant as to those facts is all that is needed, I do not believe that is the case.

I am saying that in this instance, that was not all that was introduced.

The testimony that Loper gave which Judge Connelly discredited was, we would like to — collaborated by the certified records introduced at the trial reflecting —

Warren E. Burger:

Yes, I have heard what you had to say about them would you — are you telling us that that strong collaboration or solid collaboration of that testimony?

John T. Cabaniss:

No, Your Honor, well it is — I am saying that it is corroboration.

The aspect is that we are not — we do not have a record like Burgett had, one in which there were two versions of a conviction in Tennessee which were cited in one of them that the defendant — the candidate’s prosecutor and the defendant in person and without counsel and the second version being simply the defendant in person.

We do not have two entries involved here, but all of the entries involved, none of them recite that he appeared with counsel and it can be fairly inferred from at least one and perhaps others that the wording used reflects that he did not have counsel.

For example in the 1940 conviction the entry that would appear was — came the district attorney who prosecutes for the State and came also the defendant in his own proper person, both of whom announced ready for trial.

Warren E. Burger:

Well, is it possible that if we agreed, if we decided to the single question presented here in your favor, namely that a prior conviction now void under Gideon may not be used for impeachment?

Suppose that rule was established, could we decide this case, resolve this case without sending it back to have a determination of the status of those convictions, four prior convictions

John T. Cabaniss:

Your Honor, under the principle that I have put forth a little bit earlier, I would admonish the Court that perhaps it could.

What I am suggesting is, is that although Judge Connelly discredited his testimony the rights involved here were spoken about in Burgett in no uncertain terms.

The records in this case are similar to the record that was introduced in trial in Burgett insofar as the in person aspect.

The records do not state one way or the other whether there was or was not counsel.

The Court might determine that in circumstances where the defendant has suffered this conviction has suffered impeachment or enhancement contrary to the dictates of Burgett and where he introduces in addition to his testimony records that are silent concerning either the existence of counsel being there or any waiver of counsel, if that is sufficient under the circumstances to shift to burden.

I was speaking about Harris and Walder.

I only pointed out that it seems to me they are distinguishable clearly as Mr. Chief Justice said in Harris, it does not follow from Miranda that evidence inadmissible on the prosecutions’ straight case in chief for all purposes provided of course that the trustworthiness of the evidence satisfies legal standards.

We would suggest that the Miranda violations there involved in the illegal search and seizure in Walder are different from the Sixth Amendment rights here involved with respect to the prior convictions which are inherently unreliable.

They are not trustworthy.

In addition the other basis of course is the fact that both of those cases, this is not one where Loper sought to commit perjury or he testified to try to boast his credibility of never having been convicted prior to that time, so that does not furnish a basis that no perjury was involved.

The State at one point has pointed out that this case should not be reversed for the — from the standpoint that there was no prosecutorial misconduct involved here.

I was simply note in passing that I believe this issue is disposed of by Chief Justice Warren in his concurrence in Burgett in which he noted that it is not simply errors based upon misconduct that can be reviewed by this Court.

It is the effect of those errors whether well intention or not on the constitutionally protected the rights of the criminal defendant which is all we are concerned with here.

I would like to speak to the issue of the harmless of the error that was involved.

As I previously pointed out there were two and this is for the prosecution in this case, but the only testimony relied upon to establish Loper as the violator of this offense was that of the 8-year old child, Betty Faye Dorothy.

Loper took the stand —

Warren E. Burger:

Are we concerned that the factual issue on that score now under the question, limited question of this grant?

John T. Cabaniss:

It seems to me Your Honor that the last part of that question whether use might well have influenced the outcome of the case, it occurred to me that that might indicate that the Court would consider whether or not in the circumstances here presented, the prior convictions introduced did in fact influenced the jury in its determination.

I am suggesting most certainly that they did.

It was a — in essence it was a case that was built upon a credibility determination.

If the jury had believed Loper’s verdict of the facts that occurred that morning, they would have been compelled to acquitting.

They did not believe that they would have convicted him and in that background, the prejudice, the influence that resulted from introduction of the invalid priors before the jury that refers to the details of the offenses in that posture on cross-examination at that time, it seems to me that there is no way to conclude that the error involved was harmless error, that it was not harmless beyond a reasonable doubt.

Byron R. White:

Well, was each one of the priors attacked?

John T. Cabaniss:

No, Your Honor.

Byron R. White:

And how about in the — how about in this record?

Is there evidence of the invalidity of the prior?

John T. Cabaniss:

There was one prior —

Byron R. White:

Was not one other —

John T. Cabaniss:

— prior conviction, 1932 conviction on the name of Milton Cummings as to which there is no evidence in the record at all.

Byron R. White:

No evidence and for what was that conviction?

John T. Cabaniss:

The conviction was for burglary, Mr. Justice.

Byron R. White:

And the five year penalty?

John T. Cabaniss:

No sir.

Two years.

Byron R. White:

Two years, so that — there is not attack on that?

John T. Cabaniss:

No.

There is no challenge in the record.

No record at this time.

Byron R. White:

And he was impeached on that as well as three other?

John T. Cabaniss:

Yes, he was.

Byron R. White:

And in connection of one of the others, the record is silent as to whether he was (Voice Overlap) —

John T. Cabaniss:

That is of 1931 conviction in (Inaudible) Mississippi at which time he was 17 years of age, the sentence was six months.

That was the earliest conviction.

Byron R. White:

That is the record is silent.

On the other two he said he appeared in his own person.

John T. Cabaniss:

That is correct.

One said in person and one said in his own proper person, that is correct.

The State apparently in its brief as to this latter point, the harmfulness of the error would argue that the State was only obligated to establish a prima facie case and it did so and that therefore there was no harmful error.

But in doing so it would also place the burden upon Loper to show that the error was harmless error or that is that was — where burden proof is issued upon Otis Loper.

That as I construe the cases it is certainly not the case.

The State benefited from the transgression and accordingly, it has to prove to show that the tainted evidence that was introduced to the jury did not effect or influence the jury’s verdict.

We do not believe that it here can.

May I save time?

Warren E. Burger:

Very well Mr. Cabaniss.

Mr. Darden.

Robert Darden:

Mr. Chief Justice and may it please the Court.

The petitioner has misrepresented the question and issue presented to the Court now for review.

In the 1947 trial for rape, the State on cross-examination had Otis Loper to testify about four prior convictions.

Three in the State of Mississippi, one in the State of Tennessee and this was for impeachment purposes.

Now all four of these convictions have become final and there has never been any effort to set any of these cases aside.

These convictions were valid for all purposes and will remain valid until set aside by the proper closed conviction of state or federal proceedings.

Byron R. White:

Well, why is this not a proper proceeding in which to set them aside?

Robert Darden:

Your Honor, the — getting to this in the District Court in 1969, the writ of habeas corpus that was filed was just to get relief from the 1947 Texas conviction.

Byron R. White:

And — but underlying that claim was invalid prior?

Robert Darden:

In this, he asserted that the four prior convictions were void.

Byron R. White:

Were here that — excuse me — was that not — excuse me and he introduced evidence to — as much as he had to prove that, namely about two of them, the transcript to the proceedings or the docket entries, about three of them, he did that?

Robert Darden:

Yes.

Byron R. White:

And nothing about the fourth?

Robert Darden:

That is right, Mr. Justice.

Potter Stewart:

Was that not true in Burgett that they have not been officially set aside by some other and conclusively set aside by some other Court before the proceedings begin in Burgett, is that not true?

Robert Darden:

Yes, Mr. Justice.

However, in our position —

Byron R. White:

So again, why could not the Court here have said, well, these — we find or the Court finds that these priors were — prior convictions were invalid since he pleaded guilty or was convicted without counsel?

Robert Darden:

Well, as was held by the District Court, the District Court’s said that the convictions were valid.

Potter Stewart:

Alright.

Robert Darden:

Fifth Circuit pointed out in their opinion that since the passing of Gideon versus, I mean, the handing down of the Gideon versus Wainwright which was six years prior to his going to trial in 1969, he had done nothing towards getting this removed from his record.

Potter Stewart:

But under Burgett, he did not have to?

In Burgett he had done nothing either?

Robert Darden:

That is true and we are saying Burgett does not apply.

Potter Stewart:

Well it bears on the point you are now making, does it not?

Maybe the overall decision does not apply, but in Burgett there – he had done nothing independently until he initiated the Burgett litigation to assert that the priors were invalid, is that not true or am I mistaken?

Robert Darden:

Yes sir.

You are correct.

Potter Stewart:

Yes.

Robert Darden:

In that particular case, what I understand, this was used for enhancement and in order for them to bring in the original indictment, they also alleged the two or three priors which was a part of this proceeding.

In our case this was for impeachment purposes alone and it was not necessary to show, although that these were valid convictions.

And in the State of Texas, at that time it was permissible to impeach any witness that took the stand on prior convictions or indictment, information or complaint.

So in this particular case if they had only brought in the prior indictments which he would not have had an attorney either, we could have been impeached him in Texas in 1947.

This law was not changed until 1951.

William H. Rehnquist:

In Texas then you do not have to show a final judgment of conviction or at least you did not at that time to use for impeachment?

Robert Darden:

In 1947, no, Mr. Justice.

Thurgood Marshall:

So in 1947, if a man was indicted and acquitted, he has to show to indictment?

Robert Darden:

Yes, Mr. Justice.

And there they got to it first?

Potter Stewart:

But whatever — whatever you could have shown, the fact is here, you did purport to show previous convictions, is that — not as just indictment, you did not say they indicted for this, actually you said you have been convicted out of you — through cross-examination, is that not correct?

Robert Darden:

Yes, Mr. Justice.

Thurgood Marshall:

And you say the difference between doing it in this case and when it is solely for enhancement, is that right?

Robert Darden:

Yes, Mr. Justice.

Thurgood Marshall:

What is the difference when a jury thinks the time of sentence, what would that be?

Robert Darden:

Well, this is — our contention —

Thurgood Marshall:

In a case, is it true from two to life, two years or life in this case?

Robert Darden:

Two to death.

Thurgood Marshall:

Two to death?

Robert Darden:

Yes, Your Honor.

Thurgood Marshall:

And the jury can fix him two to death and if they got different from where the jury can enhance the sentence?

Robert Darden:

It is amended to enhancement.

If they find that prior convictions, rather it is mandatory.

Thurgood Marshall:

Mandatory, but this is permissible?

Robert Darden:

Yes, Your Honor.

Thurgood Marshall:

And he did get 50 years?

Robert Darden:

Yes, Your Honor.

Potter Stewart:

Are you familiar with the Tucker case decided this week?

Robert Darden:

No, not the decision, I think I have read this prior to this.

Potter Stewart:

Well, if you read the Court of Appeals decision that was affirmed here this week by this Court and that held that the — that decision of the Court of Appeals affirmed here, required that the case go back for re-sentencing because the sentencing body in that case, the judge had — he gave consideration to prior convictions that were invalid under Gideon against Wainwright.

Now, here the sentencing body was the jury and it certainly had before it these prior convictions, did it not?

Robert Darden:

This is true, Your Honor.

Potter Stewart:

So that assuming what I say is correct description of the Court of Appeal’s decision in Tucker and this Court’s decision, would you not think that at least this should go back for re-sentencing and under Texas procedure I suppose that means a new trial because the guilt, the jury does — performs both functions in Texas, is that right?

Robert Darden:

Yes, Your Honor.

Warren E. Burger:

Does it — the jury still perform the function of the sentencing as it did in 1947 when this case was tried?

Robert Darden:

Well, the statute has been changed to permit the petitioner or the defendant to make a request to have a dual trial or to have the judge sentence him depending on what he wants to do.

Warren E. Burger:

Oh!

If it were sent back for re-sentencing now, what would be the mechanism of re-sentencing under present Texas law?

Robert Darden:

In essence, probably he would be given another trial or permitted to plead for any sentence less than 50 years.

Warren E. Burger:

He would have the option of a trial on penalty only?

Robert Darden:

Of the — yes sir.

What we are saying that Loper is trying to accomplish both from the lower courts and in this Court, well in the lower court is that this Court being petitioned to set aside the Texas conviction and the three Mississippi convictions and the one Tennessee conviction.

Respondent submits that this Court in considering this question presented by the petitioner must assume or they must void the Mississippi convictions, the Tennessee convictions and in order to reach the question presented.

The question presented and that which the Court has been requested to consider is purely hypothetical, there is no case in controversy involving the prior void convictions for impeachment purposes, the prior convictions involved were valid and remain so until set aside the proper proceeding.

Under the argument of appointment of counsel prior to Gideon versus Wainwright which was decided in 1963, the State of Tennessee and the State of Mississippi required appointment of counsel for indigents upon request and the record is silent in this case as to whether or not Loper was indigent and that the Court had knowledge of this and the record is silent as to whether or not he had made a request and that this request had been denied.

On the point of impeachment, Otis Loper took the stand to deny the assault.

He also denied that anything was wrong with the complaining witness, when he left for town and that if anything had happened to the complaining witness, this was done by the Maggie boy (ph).

In this, we feel that Harris versus New York is applicable in that when a defendant takes the stand to testify, he is to stay with the truth and be accurate.

Not only did Loper deny the assault, but it also gave an alibi that nothing was wrong with the complaining witness which we found not to be true on the testimony of Dr. Weber and also that if anything had happened such as the assault, it was the Maggie boy.

Warren E. Burger:

Well, here in this case there was no challenge to the impeaching material.

The Harris case was one in which the very material used to impeach him was being challenged and was at issue.

I have difficulty seeing how this is like Harris.

Robert Darden:

Well —

Warren E. Burger:

They both happen to involve impeachment?

Robert Darden:

One was using the statement, prior statements that did not come under Miranda.

Warren E. Burger:

That is right.

Robert Darden:

And if we used the same logic here, we are talking about un-counseled convictions introduced to impeach a witness at the State — in the stand.

William J. Brennan, Jr.:

Mr. Darden, I wonder if I correctly understood your answer to the Chief Justice when he asked you if this went back for re-sentence, what the procedure is that now would be applied, what did you say was –?

Robert Darden:

It would depend on what the defendant wanted to do.

Robert Darden:

Whether or not he wanted to plea for a lesser sentence or wanted a new trial.

William J. Brennan, Jr.:

Your mean that if — it is proper to say it had to go back for a re-sentence, the petitioner would have the option to say, I want a new trial rather than (Voice Overlap)

Robert Darden:

Well this would be — Your Honor I think –Mr. Justice this would be worked out with his attorney, him and the prosecutor.

William J. Brennan, Jr.:

But he has a choice, although we send it back only for re-sentencing, he has the choice of having a new trial, is that right?

Robert Darden:

I think this is right based on the agreement between counsels.

Byron R. White:

Well, yes, let us assume that we said that constitutionally his sentence cannot stand, but the verdict of guilty may and all Texas has to do is to is to re-sentence him?

Robert Darden:

And this would be a nunc pro tunc judgment in it.

Byron R. White:

Well, the sentence would be invalid, but with conviction would not be.

Let us assume the Court held that.

Would Texas — under Texas law, would he have to have a new trial under —

Robert Darden:

No.

Byron R. White:

— procedures just for re-sentencing?

Robert Darden:

No.

This could Your Honor, could come under nunc pro tunc judgment.

An appearance before a judge, the sentence was up in this (Inaudible)?

Robert Darden:

Yes sir.

Warren E. Burger:

He has been paroled now in this?

Robert Darden:

As of September, yes, Your Honor.

Lewis F. Powell, Jr.:

Mr. Darden, do I understand you to say that one or more of prior convictions (Inaudible) in the record in this has not shown whether or not disposition of — waived the right of counsel?

Robert Darden:

This is correct, Your Honor.

There is nothing in the record that show that he even made the request as required in the State of Tennessee and in the State of Mississippi at that time or that he was indigent and that the Court had knowledge of it.

Lewis F. Powell, Jr.:

That is not (Inaudible)?

Robert Darden:

Well, he came in, in the hearing in 1969 in Houston in the District Court and said that he could not afford an attorney, but the cases in the statute in Tennessee and Mississippi which is pointed out in my brief, states that they have — have knowledge of his indigents and that he makes a request for counsel, this the record is silent on.

Lewis F. Powell, Jr.:

There was no evidence that as to whether or not he was offered counsel and intelligently annoying they waived the right to counsel?

Robert Darden:

The record is silent.

Lewis F. Powell, Jr.:

Is silent on that?

Robert Darden:

Yes, Your Honor.

Potter Stewart:

Well, what did he say?

Did he say anything about that at the habeas corpus?

Robert Darden:

The only think, as I remember Mr. Justice that he did not waive counsel, he did not have funds to employ a counsel.

Potter Stewart:

So that record does contain?

Robert Darden:

Well, this is just a statement in the District Court from that standpoint.

Potter Stewart:

Right, under oath, I assume?

Robert Darden:

Yes.

But the District Judge did not believe any of his testimony and held that these convictions were valid.

Potter Stewart:

Of course the Court of Appeals did not — it’s a little ambiguous, the Court of Appeal’s opinion, but the Court of Appeals did proceed to decide the legal question, did it not?

It just said we are not — and we did — we hold that these prior convictions even if invalid can be used for impeachment purposes?

Robert Darden:

Yes.

Potter Stewart:

Did it not?

Robert Darden:

We might add under the impeachment, any time a witness takes the stand, his character is an issue.

The federal rule as I have said permitted prior convictions for impeachment purposes in Texas in 1947, permitted much further.

Warren E. Burger:

But Mr. Cabaniss though is raising perhaps some alternatively a narrower question and that is that in a case such as in Texas in 1947 where the jury imposes the sentence rather than the judge has in most of the jurisdictions, but in Texas in those circumstances, then the evidence of impeachment falls within the reach of what the Courts have said is not permitted, that it goes to enhance the punishment or at least he argues that no one can say that it did not increase the punishment?

Robert Darden:

We take the position that it did not, Mr. Chief Justice, based on the facts.

In their brief, they point out that only the eight-year old is the only one that implicated Otis Loper, the defendant.

Unfortunately, in these type of sex crimes there is only two people around, but she also testified that this is the same thing that he had done the year before when she was living with her grand parents in Alabama and that he threatened her and she did not tell them what had happened and finally told them that she had fallen on stick to hurt herself.

This is the testimony came out and with this along with the fact that he was not be, the jury has now that a prior offense had happened which could justify the 50 years.

Only thing he did was “no I did not do it,” but if it happened, the Maggie boy did it.

There is nothing in the record that shows that the Maggie boy was even present at that house on August of 1947 or that the boy was present that Friday before.

It is our position that he has not attacked or removed these convictions in the proper court by going back to the convicting court.

Therefore, the ruling in the State, I mean, in the Federal District Court and the Fifth Circuit should be upheld.

Warren E. Burger:

Thank you, Mr. Darden.

Mr. Cabaniss do you have anything further?

John T. Cabaniss:

One thing, Mr. Chief Justice.

I want to correct what may have been a misimpression or maybe I am not reading the Court correctly.

You have spoken about sending the matter back for re-sentencing which appears to me to be an indication of limiting the concept to Burgett to one which in fact is restricted to the situation of enhanced or increased punishment.

As I have tried to indicate, I read Burgett more broadly than that and it appears to me that re-sentencing would not be satisfactory in a circumstance where the invalid tainted evidence introduced might have affect to not only the sentencing of Otis Loper, but also his conviction of guilt on the primary offense.

It seems to me in that posture that the required relief is not re-sentencing, but avoidance of the conviction and I simply wanted to bring that – -that point forward in case I have not made myself clear.

Thurgood Marshall:

On the retrial, do you have any idea where this complainant witness might be as of now?

John T. Cabaniss:

No, Mr. Justice, I do not.

I am not even sure where Mr. Loper is now.

Thurgood Marshall:

She was eight-years old in 1947, right?

John T. Cabaniss:

That is correct.

Mr. Cabaniss, do I understand that he is now on parole?

John T. Cabaniss:

Yes Mr. Justice he was paroled and it is my understanding he is now working in Galveston, Texas.

Have you anything to say about what procedure might be on re-sentencing if that were the limitation upon which it was sent back?

John T. Cabaniss:

No Mr. Justice, I do not.

I am not — but would be used.

I would assume though — I would believe that Texas does have procedure in a case like this for re-sentencing without —

Without a new trial on the –?

John T. Cabaniss:

That plenary hearing without full consideration of the matter.

Does the Court have further questions?

Warren E. Burger:

Mr. Cabaniss, you acted at the request of the Courts and by appointment of the Court in this case.

John T. Cabaniss:

Yes Your Honor.

Warren E. Burger:

And we want to thank you for your assistance for the Court and of course your assistance for the client you represented here.

John T. Cabaniss:

Thank you.

Warren E. Burger:

The case is submitted.