Moon v. Maryland

PETITIONER:Moon
RESPONDENT:Maryland
LOCATION:St. Petersburg City Hall

DOCKET NO.: 267
DECIDED BY:
LOWER COURT:

CITATION: 398 US 319 (1970)
ARGUED: Apr 22, 1970
DECIDED: Jun 08, 1970

Facts of the case

Question

Audio Transcription for Oral Argument – April 22, 1970 in Moon v. Maryland

Warren E. Burger:

Number 267, Moon against Maryland will go over them Monday morning at 10 o’clock.

The next case to be heard today will be 269, Price against Georgia.

If it please the Court, I believe there’s been a —

Warren E. Burger:

I must have.

Georgia case is referred to come back on Monday, that is —

Warren E. Burger:

Oh, I see.

[Inaudible] could have — could be settled on Monday.

Warren E. Burger:

Then we’ll stay right on the original schedule, but we won’t hear the Georgia case today.

I hope that premature postponement didn’t disconcert you counsel?

Robert Anthony Jacques:

No.

Warren E. Burger:

Sure it didn’t?

You may proceed whenever you’re ready.

Robert Anthony Jacques:

Mr. Chief Justice, may it please the Court.

I am Robert Anthony Jacques, attorney for petitioner Number 267.

I believe a brief statement of the chronology of events would be in order before we start the issues presented to me by the Court in this case under the instructions of last June 23.

The petitioner in this case, Dennis Mullene Moon was arrested on June 2, 1964 and was tried on December 17, 1964, convicted on January 7, 1965 for the crime of armed robbery in the Circuit Court for Montgomery County, Maryland.

On October 23, 1965, the Court of Appeals of Maryland decided Schowgurow versus State of Maryland and as a result of that decision, they held it limitedly retroactive to include petitioner in these proceedings and invited or said that he could avail himself of that decision and take a new trial if he so desire since his conviction had not yet been made final.

He in effect did take a new trial on June 6, 1966, and on June 7, 1966, was convicted of armed robbery, assault with intent to murder and larceny.

It is the irony of this case that the second judge chose to increase the sentence for the same charge for which the petitioner had been convicted in both cases, that is armed robbery and then imposed to suspend it, concurrent 10-year sentences on the other charge.

I say in all frankness that had not judge — had Judge Pugh run the other sentences consecutively and left the sentence for armed robbery at 12 years, I would not be standing here today, I would really have no case at all.

Be that as it may, Judge Pugh did see fit to increase the sentence on the identical charge for which the petitioner had received 12-years to 20-years at his second trial.

This Court, when it granted certiorari last June, ordered me to argue the question of retroactivity of North Carolina versus Pearce.

Potter Stewart:

Can I ask just before you leave the facts —

Robert Anthony Jacques:

Yes sir.

Potter Stewart:

— whether a credit was given by defendant to judge —

Robert Anthony Jacques:

Yes and it is the — actually Judge Pugh gave the petitioner more credit than he had received at his first trial.

Judge Pugh run the sentence back to the date of his arrest whereas the first judge run it back to the date of his first sentence only.

So in effect, Judge Pugh gave him another seven months credit for time.

Potter Stewart:

So there’s no issue here —

Robert Anthony Jacques:

There’s no question of credit.

Potter Stewart:

— with respect to that aspect —

Robert Anthony Jacques:

That’s correct.

Potter Stewart:

— of Pearce and Simpson?

Robert Anthony Jacques:

That’s correct Your Honor.

Potter Stewart:

Full credit was given of course, that’s good.

Robert Anthony Jacques:

Full credit was given, that’s correct.

If I may proceed Your Honor as to the question of retroactivity.

I believe as a practical matter that — may I state at the outset that I am not urging the Court as a practical matter that every decision of this Court should be made retroactive and I’m not here to push that argument.

My argument of course is only that under the facts of this case and the criteria which this Court has outlined, particularly in Stovall versus Denno, Desist versus United States that the three criteria of the purpose of the new rule, reliance on the old rule and the burden on the administration of justice fully justify a completely retroactive effect to this case before the Court today, that is Moon.

I would like to say further Your Honor that I do not believe that there is in effect a new rule so that the question of retroactivity I believe is at least — that this is not a retroactive case in effect.

I would say to the Court that North Carolina versus Pearce was a case of first impression to this Court and I intend to argue it later to that effect that it is not in any change in the law of the United States.

It certainly in the petitioner’s opinion is not a change in the laws expounded by United States versus Ball or Stroud versus United States, but was a new case.

I would also state that under the facts of this case, the three criteria stated for instance, the purpose of the new rule in this case as I understand it is to allow a free and uninhibited right to appellate review in the state and federal courts of the United States.

Certainly, this purpose and the Court has so stated in Stovall I believe that this purpose is controlling unless the questions of reliance or burden are such as to overcome it.

I submit to the Court that those factors are not of such a factor.

I would say this as to reliance that the Court in Benton for instance talked about collateral estoppel.

Now the state may have — I would say first the state had no old rule to rely on and I will approach that in later.

Since they had no right rule to rely on, even if they did rely on the Maryland law, and of course they would argue that, there was no controlling United States case with them to rely on and assuming that there were under the doctrine of estoppel, they did not change their position to their detriment because of this decision.

And if the Court will note at page 38 of the state’s brief, they concede that of the 85 persons retried who that is, were reconvicted under Schowgurow, 11 of them received increased sentences.

Now, projecting as a practical matter, Maryland’s population is 4% of the national population, that would mean approximately 550 prisoners in the state prisons in this country who would be re-sentenced.

I —

Warren E. Burger:

Do you think this period of time and this number of people as sufficient to let the law of probability have any meaningful exercise?

This is just a very short period of time in a very small place?

Robert Anthony Jacques:

Well Mr. Chief Justice, Schowgurow was decided on October of 1965.

The State’s brief was submitted in approximately September of 1969, that’s four years.

I don’t see — there were I believe, 221 cases.

The state has some figures which they put in their brief, but I don’t see frankly where that the figures will change with time at all.

Warren E. Burger:

Well, not the figures perhaps in Maryland, I’m talking about you are projecting this to the 49 other states?

Robert Anthony Jacques:

Oh, very frankly, I will concede that I borrowed a copy of the brief in North Carolina versus Pearce and petitioner for respondent there stated that perhaps up to 70% of some cases in North Carolina had received increased sentences.

So perhaps my figures are at least subject to challenge, but I submit that the number of cases involved in the state courts cannot be that great and in particular, the burden on any one state is to justify the reliance on a rule which might been Your Honor does not exist in the first place.

Robert Anthony Jacques:

And if I may talk about —

Potter Stewart:

Well, the reliance I suppose was that until Pearce and Simpson, any state felt free on a retrial, any trial judge on a retrial of somebody who’d previously been convicted, felt entirely free because that was the rule, was an absence of any other rule?

Robert Anthony Jacques:

But no Your Honor —

Potter Stewart:

But not entirely free to sentence of the person before him who would be convicted in a court as just though this for a new case?

Robert Anthony Jacques:

If it please the Court, I think it goes further than that.

I know in Maryland Courts and I believe the Maryland Court in my case relied very heavily on Stroud versus United States as authority for the proposition that this Court has ruled that there is no constitutional prohibition against increase of sentence at retrial.

I do not so read Stroud nor do I read United States versus Ball.

Potter Stewart:

Well, how do you read Pearce and Simpson?

Robert Anthony Jacques:

I read Pearce and Simpson to have approached the prohibition against increase of sentence with the exception which the Court outlined as to conduct subsequent to the first trials.

Potter Stewart:

Pearce and Simpson said that —

Robert Anthony Jacques:

That’s correct.

Potter Stewart:

— there was no absolute constitutional prohibition against the law of re-sentence at a new trial, didn’t it?

Robert Anthony Jacques:

It said — that’s correct, they said — well as I recall, there was no flat absolute prohibition.

I agree with the Court —

Potter Stewart:

Exactly.

Robert Anthony Jacques:

— to that extent, but the point that I originally urged in my writ of certiorari, that is point three of this argument, that is the that prohibition in fact be made a flat prohibition under —

Potter Stewart:

Well, then you are saying that Pearce and Simpson was wrongly —

Robert Anthony Jacques:

Pearce —

Potter Stewart:

Was wrong and that the dissenters in that case were right.

Robert Anthony Jacques:

Well, I hate to say it Your Honor.

Potter Stewart:

But that is — that is basically —

Robert Anthony Jacques:

I’m saying that the Court did not go far enough in North Carolina versus Pearce, yes.

Potter Stewart:

Right.

Robert Anthony Jacques:

As to the question of and perhaps as to this question of reliance, I know that the Court stated at some length in Pearce that they did not wish to overrule the long line of cases involved in Stroud.

But as I read the cases cited by the Court there, I do not believe that they stand for the proposition which the Court feels it does or at least the plurality opinion in Pearce says that it does.

I have read the briefs in the Stroud case and counsel was arguing there and as it’s in my brief, that since Stroud had been put in jeopardy at a former trial, he could not even be retried again for the same offense, that is murder and I believe — say with respect to the Court that that is exactly what the Stroud case stands for and I believe Murphy versus Massachusetts, Ball versus United States, all stand for roughly that proposition.

That is that the fact of an acquittal or the fact of a reversal does not in any way prohibit retrial for the same offense and I’m certainly not saying that to this Court.

That’s an untenable argument.

I am saying is that the Court until Pearce had never decided the question of increase of sentence at retrial.

Now, if I may — as to the question of —

Potter Stewart:

I thought it was in the Stroud that the man was sentenced to life imprisonment at first trial and to death sentence at the second?

Robert Anthony Jacques:

I’m sorry.

Potter Stewart:

Stroud was the birdman of Alcatraz, you remember?

Robert Anthony Jacques:

That’s right Your Honor and of course this came — his case came back here ironically in 1916 —

Potter Stewart:

Yes.

Robert Anthony Jacques:

— some 4 years later.

If I recall in May of 1916, he received the death sentence.

He then appealed and got life the second time and then on the theory of pushing his luck I suppose, then got a third trial.

Potter Stewart:

And got death.

Robert Anthony Jacques:

And got death again and it was in that case that his counsel urged that since he’d already put in jeopardy for his life, he couldn’t be tried again the third time at all.

And I’ve read Stroud and I’m convinced that that’s what this Court was deciding in Stroud that there was no reason not to retry him a third time.

If I may proceed then as to the question of the double jeopardy argument.

As to double jeopardy, I know that this Court has in Pearce decided that the double jeopardy argument is not applicable.

May I say respectfully that a close reading of the language of the Fifth Amendment and of the study since then and in fact the first draft of James Madison’s article for the Fifth Amendment in which Mr. Madison stated that there should be no more than one punishment nor one crime, nor one trial for the same offense.

Unfortunately, as I understand it from the article, there was so much confusion as to whether punishment mean they couldn’t be retried, exactly the Stroud question that Mr. Madison was forced to change his original language.

I think very frankly Your Honor that the language, the cases which I feel are applicable to this case are not Ball and not Stroud, but ex parte Lang in 18 Wallace and United States versus Benz in which this Court said in ex parte Lang that the reality of trial is not the trial itself, but the punishment.

And I might say to the Court, I’ve only been in practice of law seven years, but I have never had a case in which I’ve — in which the overwhelming desire and concern of the prisoner was not the punishment involved.

I know that there maybe some cases where because of security clearance or professional reputation, the conviction is the man would do anything to avoid a conviction.

But as a practical matter, I submit that in — at least in my experience, 90% of the appeals that go to the state and federal appellate courts in this country are in some way related to the issue of punishment.

I think that as the ultimate reality of criminal law and I think very frankly to separate double jeopardy from trial, from double jeopardy as far as it concerns, the sentence is to do — is to incorrectly judge in my opinion the clear language of the Fifth Amendment because it says in jeopardy of — nor shall not twice be put in jeopardy not by conviction, but of life and limb that is punishment.

And I submit that — Your Honor that the state has raised several questions about, well, if you extended it to a flat prohibition, what would happen?

You’d have everybody appealing.

We — I have statistics Your Honor that show that in some circuits, the rate of appeal is approaching 90% now.

Under the uniform code of military justice for a crime involving of more than one year imprisonment, you have two automatic reviews, automatic, you don’t even have to request them.

I submit further that the state is apparently been saying all along that the second trial judge sits de novo and accordingly, he has the right to substitute his judgment for that of the first judge because the first judgment has ceased to exist.

If I recall the language of the Court in Pearce, is that the first judgment, the first sentence insofar does not conserve becomes a nullity.

I submit with all due respect that this nullity argument simply is not — cannot be distinguished from the argument in Pearce at all.

It cannot be made — it is not consistent with the rest of the argument in Pearce.

I cited for instance in my brief and I would very much like the State of Maryland to answer this question.

Reeves versus State, 3 Maryland Appeal 195, where the defendant had served some six years of a sentence, of 20 years if I recall.

Robert Anthony Jacques:

He then got a new trial and got 20 years in prison.

Now, the Court said, we agree that this is a de novo proceeding.

We agree the slate as wiped clean.

We agree that if the former sentence is a nullity, but you still can’t sentence a man to 26 years on a 20-year maximum charge.

As I said to the Court of Appeals when I argued this, I said I defy, I didn’t say I defy, I said I would like the Court to explain the distinction between its rationale in Moon and its rationale in Reeves.

If the former sentence is a nullity, then it seizes to exist and if the man gets another maximum sentence, it’s perfectly proper.

Now, this is the logical extension of the Reeves decision.

The Court of Appeals of Maryland declined to hear that case.

The state asked for certiorari and they simply did not take the case.

And I well say when I was arguing the case, one of the judges on the Court of Appeals said, he saw nothing wrong with that argument.

The man got a de novo trial and got another 20 years and wound up serving 26 years on the 20 year charge, that was perfectly alright because the former sentence was a nullity.

I submit with respect to the Court that you cannot consider a sentence as a nullity.

It is there and it is why most appeals are taken.

Now, the courts in the State of Maryland, and the Maryland Courts have said that and they’ve cited from other cases that on appeal, the trial judge — the Court of Appeals will reverse a sentence if it is excessive and they feel that it violates liberty and due process.

Now, Your Honor, my set of the Maryland reports go back to 1682, I believe, that’s the nominatives of Maryland and they have recently stated that there is no case on record in which the Court of Appeals of Maryland has ever reduced a sentence.

And in fact, I submit to the Court to the best of anyone’s knowledge in the entire, almost 300 years of the appellate procedure in Maryland, not a single case has ever been reversed because the appellate court felt that the trial judge had been too harsh.

Now in fact, in the last few years, the Maryland legislature has seen fit to establish a new procedure for appellate review sentence under Rule 762, the Maryland rules of procedure.

This involves a three-man bench of which the sentencing judge is one and he may then — they may then either increase the sentence, leave it alone or decrease it.

Now, it seems to me that this is the ultimate issue.

The State of Maryland has now recognized that there is a division between the appeal of the trial and the appeal of the sentence.

And if we can — I’m asking this Court to recognize that distinction in Pearce that I am asking this Court to accept what I believe was the logical extension of Green versus United States and the very fine article by professor Ben Olstein about this problem which I’ve cited in my brief.

And in Green, if we — if the Court will accept the idea of implicit acquittal insofar as the trial goes, then I see nothing wrong and in fact I think it’s perfectly logical to say that there has been an implicit acquittal insofar as any higher sentence goes.

In other words, that court has established the maximum sentence and upon retrial, while there maybe another sentence obviously, it cannot exceed that valid sentence.

I’m asking the Court in other words to face what I consider is the reality of appeals that almost every appeal is a somehow an appeal of the sentence and that because our courts do not recognize that on appeal, somehow error has to be found.

I would venture to this Court that if you promise every prisoner in a — in any jail in the United States that he would be released if he dropped his appeal, I would venture that 90% of them would drop the appeal immediately.

And I would venture further that if you release them and said you can ahead with your appeal, it doesn’t matter, they still would drop their appeal because we are faced here and I know this Court is facing other cases.

We just heard one about — I think that the sentencing area is the most sensitive area that this Court must now resolve.

I know that there is a capital punishment case set.

I know North Carolina versus Alfred is set very soon, or has been already argued.

This, it is now — I think the courts, particularly this Court in Pearce have finally faced this entire area of sentencing and punishment and that is the ultimate reality of the law of this case and the law of every case.

Robert Anthony Jacques:

There is no good reason not to apply North Carolina versus Pearce retroactively.

What is going to be the burden on the administration of justice?

Almost nominal, not one guilty person is going to be turned lose.

If every prisoner in the state came under this rule and I say it is only 11, if every prisoner came, what would happen, he would be brought back to the sentencing Court and sentenced in accordance with this case.

I do not consider that an undue burden.

Not one person is going to go free because of this case.

As to reliance upon the old rule, we’ve already discussed that.

I submit very respectfully, there is no old rule.

So that is why I contend that the question of retroactivity does not even apply here.

Because I know in Desist the Court talked about changes in the law and a clear break with the old law, but there is no old law to break with in this case.

If it please the Court, I’m saving some of the time for rebuttal.

Warren E. Burger:

Very well Mr. Jacques.

Edward F. Borgerding:

Mr. Chief Justice —

Warren E. Burger:

Mr. Borgerding.

Edward F. Borgerding:

— may it please the Court.

I would like to accommodate my brother and inform him while he made the statement that he does no know of any case in which the Court of Appeals, maybe he was limited to the Court of Appeals in Maryland.

But as far as the Court of Special Appeals which is an appellate court, they did reverse the Reeves case simply because they’d felt that the trial judge exceeded his authority and it possibly foreshadowed this Court’s decision in as far as credit for time served.

I think the Pearce case held that while the sentence is a nullity on the first conviction, the time actually served cannot be a nullity, and this is exactly what the Court of the Special Appeals held not in those exact terms, but in that case since Reeves had been given a life sentence, he had spent 6 years in prison.

The second time around, when it was reversed in the federal court, he received a 20 year sentence, it was a crime of rape and the judge gave him 20 years but did not take in to consideration the fact that Mr. Reeves had actually spent 6 years in jail.

And so therefore, the Court of Special Appeals held that this was in effect increase in the statutory sentence of 20 years that Reeves was entitled to and they reversed the case and our Court of Appeals for their own reasons did not grant cert.

The state, Mr. Jacques is correct, the state took a cert in that case insofar as we were trying to resolve the question of Moon which was pending in the Court of Appeals at that time, Reeves and also another case, Williams versus State dealing with jail time, that is the time a defendant spends in jail pending the trial as differentiated from sentence time.

Now, as to the statistics that we quote on page 38, had no time to mean to infer that this 11 increased sentence applies to all retrials in the State of Maryland.

This is limited as indicated in the brief only to Schowgurow cases, not to cases that have been reversed because of double jeopardy problems, evidentiary problems and a variety of reversals that come through.

This is only limited and it was only entered into the statistics of finding out this to contradict this philosophy, this pragmatic philosophy that judges on the second trial will vindictively, systematically is the word that’s used in the Law Review article that is Duke Law Journal systematically would increase sentence.

This would indicate that in Maryland on the Schowgurow that out of the 85 cases that we were able to come up with retrials, 61 got it a decrease in sentence, that’s 72%.

Now and incidentally, this was not a figure on the sentence itself because that’s only one consideration determined whether he may and got a decrease in sentence, you must determine the date of his first sentence to make sure that the second sentence covers that same period of time and this was figured on that basis.

Someone could get a lesser sentence but in effect served more time, if he did not get credit for the time served.

Now, I think that the question here in view of the Pearce decision by this honorable Court, the question before us today is based on the premise that the Pearce Court held that on a retrial, a man can get a heavier sentence.

The main fear — there was two problems there.

One was credit for time served.

Edward F. Borgerding:

The other was the fear of the vindictiveness on the part of the sentencing judge.

So therefore, I think it’s incumbent to question before this Court today.

One of the questions is whether the trial record of the second trial would support the fact that Judge Pugh, sentencing judge had ample reasons or was his sentence, not necessarily just a file, or that could be a question of debate but whether it was given in conformity with the evidence of that particular case.

And certainly, it has been the law in Maryland at all times since 1896 in the Mitchell case that if a judge sentenced for an improper motive, death sentence should be set aside.

We would say that a vindictive purpose on the part of the judge in penalizing the man for taking an appeal is certainly an unworthy to note and it should be set aside.

Now, I would — well, no question has been raised as to the guilt of this particular man.

I think it’s essential that a factual outline of the crime should be brought to the attention of the Court.

This was a prosecution for armed robbery and assault with intent to murder and larceny of a female hardware clerk who was on her way to deposit money in the bank.

This was in broad daylight in the shopping center just to the northwest of here and as she was walking to that bank, she was attacked by the defendant Moon.

The evidence will indicate that he struck her and beat her to the ground with a lead pipe that he had fashioned the night before by putting tar tape around it.

He was a former coworker of the victim.

He knew the victim, the victim knew him.

So it was essential to this operation of this crime that she could not be able to identify him.

And that’s exactly he was successful because the beating was so severe that this woman could not identify Moon at the first trial and could not identify him at the second trial two years later because she was suffering from amnesia brought on by this brutal beating about the head.

Now, so the first trial, the judge at the first trial had before him the following.

He had a witness to the peer, this victim who said that she couldn’t remember any of the details.

This was six months after the crime.

She had lost her memory and she couldn’t — all she could tell him was the name of her physicians.

The blackout on this young lady was from five-day period, the day before to a mere four days thereafter the crime.

She couldn’t remember or give any details, so the first trial was limited to a description of her injury by people that found her laying on the sidewalk.

In addition, after the evidence, it was a jury trial, it took two days.

The defendant when he was called or took the stand in his own behalf, he admitted — he admitted that he made the weapon.

He also admitted that he was there at the shopping center.

He admitted striking the lady.

In reading the record, you will come to the conclusion, there is a tone of remorse and regret that as he stated this and that he was sorry that he hurt her, that he liked her and he did not want to hurt her.

Warren E. Burger:

Now, all of this is in the first trial, isn’t it?

Edward F. Borgerding:

Yes sir and the point of bringing this out is to the difference in sentence, all judges vary well not all, but there is a despairing sentencing and it’s unfortunate but as long as we have human beings to sentence people rather than computers, we are going to have disparity of sentences.

Now, so Mr. Moon was convicted and got 12 years and as Mr. Jacques has indicated, he recited the chronological order that it was reversed because of Schowgurow.

Now, what took place at the second trial?

The second trial, two years later, the woman comes in and she testifies again and she is — has continued to have amnesia as to this five-day period.

Edward F. Borgerding:

She testified that she is still under the doctor’s care.

Two years later, still under medical care, at this trial, the doctor appears and he testifies as to the medical description of the terms that she was suffering among other things, a cerebral concussion.

At this time, it was a jury trial that took two days incidentally and at this time, Moon did not take the stand, that’s what his privilege.

At the conclusion of the trial, the judge or the jury rather found him guilty, guilty of — it’s very true, guilty of armed robbery, guilty of larceny and guilty of assault with intent to murder.

The assault with intent to murder was not brought at the first trial.

Now, when the — Moon was asked by the Court, “Would you — do you have anything you would like to say before I enter sentence?”

He was also asked or the Court asked defense counsel whether they want a pre-sentence report and that was turned down and they wanted sentence there.

Moon took the stand and testified that as to why the Court should be lenient was because he did not commit the crime.

He was not there and he denied hitting the woman.

The Court wasn’t — should grin at this, it didn’t know.

The defense counsel if you read the record, will indicate that the defense counsel said, well didn’t you say at the first trial that you were there and so forth and so forth to which he denied and he said that he was high on narcotic drugs at the time of the first trial and I might add that pain relieving narcotics drug because he did have a — some difficulty with his leg.

Now, then the Court questioned him about this.

Sir?

How did it get to the summary of the report?

Edward F. Borgerding:

He had some difficulty with his leg Your Honor and he maintained that he was taking the narcotics drug for the pain in his leg.

His leg subsequently was amputated so he apparently did have a problem, but we — there’s nothing to indicate that he had any drugs at the time of the trial.

The Court then questioned him whether — about this evasive matter of whether he remembered committing the crime or not and he was very vague about the party the night before and so forth.

Now, it is on that basis that the sentencing judge had to decide what sentence should Mr. Moon receive.

It is on the basis of his record, his record did come in, he had been convicted previously on two or three offenses.

In the trial itself, the evidence, it was an atrocious crime and then plus the fact that after two years in prison, Mr. Moon has not indicated any rehabilitative signs at all.

He denies his —

Potter Stewart:

Is that in the record?

Edward F. Borgerding:

Well, I’m characterizing it, but it’s indicated by the fact that he denied committing the crime when he is on questioning as to sentencing —

Potter Stewart:

Was the —

Edward F. Borgerding:

— in the second trial but as to the first trial there is a judicial confession.

And incidentally, at the time of the trial and the record indicates this, the state sought to put the judicial confession in and the trial judge refused to allow the state to put the judicial confession in and so it was excluded.

Now, so the —

Potter Stewart:

And there was a plea of not guilty at the first trial, wasn’t there?

Edward F. Borgerding:

There was a plea on both crimes.

Potter Stewart:

Both crimes of not guilty?

Edward F. Borgerding:

It was both crimes not guilty, jury trials, both of them lasted two days.

Potter Stewart:

Convictions on both case?

Edward F. Borgerding:

Yes sir.

Potter Stewart:

Except in the second case, it was for additional —

Edward F. Borgerding:

Yes.

Potter Stewart:

— charges.

Edward F. Borgerding:

And I would like to point out here to make the record clear.

The only sentence that Mr. Moon appealed was the armed robbery.

He did not appeal the other two sentences.

Warren E. Burger:

This is the thing that puzzles me.

In the second case, was there a trial on additional charge of larceny?

Edward F. Borgerding:

Yes sir.

Warren E. Burger:

That did not appear in the first case?

Edward F. Borgerding:

Your Honor, in the first case, there was a charge of larceny.

This is the Benton situation, no two ways about that.

In the first trial, the sixth count was larceny.

But for some reason in reading the record, the Court and the counsel got it mixed up and they called it a receiving stolen goods and the judge said, “Well, what are you going to do, there is no evidence of receiving stolen goods,” so the state said, “We’ll abandon the larceny count.”

So there was a larceny count in the first trial and it was abandoned after the trial.

Warren E. Burger:

Was there any punishment imposed for that in the first trial?

Edward F. Borgerding:

No sir, it was abandoned by the state.

So in effect, it would be found — it would be double jeopardy we would —

Warren E. Burger:

Well, It’s — the second judge’s affidavit which seems to indicate that he rested in part on the fact that there was an additional criminal act in the second trial.

Edward F. Borgerding:

Yes sir.

The second trial was assault with intent to murder.

Now this count or this indictment was not brought at the first trail Your Honor.

What I’m saying is that the first time you had a — armed robbery count — charge with three additional or four, at least five additional counts which one included larceny, and the second indictment which was not present at the first trial, but at the second was assault with intent to murder.

And this is what Judge Pugh is referring to that the assault with intent to murder was not present at the first trial, but he was tried on that the second time.

Byron R. White:

But the intervening events between the — the only intervening advantage described both, as the new sentencing was — was his prison record add to the fact that when he came up for sentencing the second time, he denied what he had admitted at sentencing the first time?

Edward F. Borgerding:

Yes, plus the fact that the crime is more vividly described in the second trial rather than the first.

Byron R. White:

Now then, but that relates to the events that happen before the first trial?

Edward F. Borgerding:

Yes sir.

Oh!

Now, I would like to make it quite clear that it is not on the record.

We — the trial judge, this case was tried six — three years prior to Pearce and it is not spread on the record these reasons you understand that and I do not want to mislead anybody that it is not.

But this is identifiable conduct if we are looking forward from that point of view.

Byron R. White:

But your argument appears just like the —

Edward F. Borgerding:

Yes sir.

That is correct.

Warren E. Burger:

Well, aren’t you arguing that if it does, the affidavit of the — of Judge Pugh furnishes substantial reasons for a different sentence because that’s the way I read your brief?

Edward F. Borgerding:

Yes, I would argue that Your Honor plus the fact that this distinguishing factor between this case and Pearce is that in Pearce and Simpson, both the Court came to the conclusion that one Judge Johnson in the Simpson versus Wright in the lower court, the District Court felt that Mr. Wright I believe it was with a vindictively sentence and he was penalized for taking an appeal.

Warren E. Burger:

Well, isn’t the further factor here that the — that you do have an intervening event?

Edward F. Borgerding:

Oh yes.

Warren E. Burger:

You do have an intervening event in the form of the abandonment by the State of Maryland of one of its charges in the first trial which was not abandoned in the second trial, but became the basis of another count, is that not correct?

Edward F. Borgerding:

Well, I — you could term it at intervening event but that I don’t think that could be construed to — for the — why the sentence was increased, yes.

Warren E. Burger:

That’s all we’re talking about.

Edward F. Borgerding:

From that face, yes sir.

Warren E. Burger:

It’s all we’re talking about in this case is why the sentence was increased, isn’t it?

Edward F. Borgerding:

Well, that’s how we view it Your Honor.

William J. Brennan, Jr.:

Well, what if I get — understand this clearly.

Are we talking about anything more than the increased sentence on the conviction for armed robbery?

Edward F. Borgerding:

I think Your Honor on the retroactive problem, we have to be talking of Moon —

William J. Brennan, Jr.:

I know it, are we concerned here — as I understand it, he was tried the first time and convicted of armed robbery?

Edward F. Borgerding:

Yes sir.

William J. Brennan, Jr.:

He was also convicted of larceny, but the state abandoned that conviction for further sentence?

Edward F. Borgerding:

No they — excuse me.

The state abandoned the larceny count before it went to the jury.So it was not —

William J. Brennan, Jr.:

So but he got — so he was sentenced– he got the 12-year sentence for armed robbery?

Edward F. Borgerding:

Armed robbery alone.

William J. Brennan, Jr.:

And then when he got to new trial, he got — he was convicted for assault with intent to murder.

Edward F. Borgerding:

Yes sir, that was a new indictment and different —

William J. Brennan, Jr.:

And convicted for armed robbery?

Edward F. Borgerding:

That is correct.

William J. Brennan, Jr.:

And convicted for larceny?

Edward F. Borgerding:

That is correct.

William J. Brennan, Jr.:

All three?

Edward F. Borgerding:

Yes sir.

William J. Brennan, Jr.:

But are we concerned with anything here except the increased sentence on the armed robbery conviction, that’s I’m trying to get here?

Edward F. Borgerding:

That’s all you’re concerned with because that’s the only one that was appealed.

William J. Brennan, Jr.:

And now why is it you are suggesting that Pearce is not applicable?

Edward F. Borgerding:

I think that Pearce, the due procedure rule in Pearce was predicated on vindictiveness of a second court to sentence someone for taking an appeal.

In this case, had no time has the defendant Moon maintained that he was — or his sentence was increased because the judge vindictively increased his sentence because he thought —

William J. Brennan, Jr.:

So this is not an argument that Pearce is inapplicable because it ought to be prospective only?

This is an argument that Pearce is inapplicable because there is no element here of vindictiveness on the second — on the imposition —

Edward F. Borgerding:

Yes so —

William J. Brennan, Jr.:

— the second armed robbery sentence?

Edward F. Borgerding:

That would be one of our argument.

Of course we also argue on the retroactivity of Pearce.

Now, it is —

Byron R. White:

You also say that Pearce should not be retroactive at all?

Edward F. Borgerding:

Well, Your Honor I understand that as far as credit for time served —

Byron R. White:

I understand.

Edward F. Borgerding:

— it is — that there is a footnote to the effect that it is retroactive, but we do not have this problem.

This man not only got 217 extra days because his sentence was sent back and he got good time for that and there is a footnote that he has to get good time.

He also — the correctional system of Maryland gave him 86 days good time for the abortive time he spent –

William J. Brennan, Jr.:

But I don’t quite understand why you’re telling us all about the assault with intent to murder conviction at the second trial and with the larceny conviction at the second trial.

What relevance have they to the issue that we’ve got to decide?

Edward F. Borgerding:

I just was giving you the whole picture Your Honor.

William J. Brennan, Jr.:

I see.

Edward F. Borgerding:

Now, the distinguishing feature as I’ve indicated in this — in the case at bar is that as to Pearce and Simpson is that in Pearce and Simpson, the Court found that the sentence of what the second trial was vindictively given.

The man was being penalized for taking an appeal.

Edward F. Borgerding:

Here, as I have indicated, one, the defendant Moon has never alleged that.

All the — in the 3-year journey to this Court, he has never alleged that.

In addition, the Court of Appeals of Maryland went into this and the Court of Appeals of Maryland found this as a fact and this is recorded of course in their decision that there was no indication that the trial judge increased Moon sentence because he had elected to have a new trial or for any other unworthy or improper motive.

Now, the question as — moving on to the question of retroactivity, the only thing that possibly the retroactivity appears is to this particular case would be the procedural rule which was enunciated by the court.

Now whenever a judge impose a more severe sentence upon the defendant after his new trial, the reason must be affirmative — affirmatively appealed.

Potter Stewart:

You agree as I understand it General Borgerding with the basic holding and with the full retroactivity of the basic holding in Pearce that it would be unconstitutional for a sentencing judge, that is after a second trial, to impose a higher sentence out of motivations of vindictiveness.

Edward F. Borgerding:

Absolutely.

Potter Stewart:

So that’s the basic constitutional holding of Pearce?

Edward F. Borgerding:

Yes.

Oh!

Absolutely.

Potter Stewart:

As I understand it, you concede that is always been the rule of due process that it — to that extent is fully retroactive.

Do I misunderstand you?

Edward F. Borgerding:

Well, and that is I would say, yes it should have been always the rule because if somebody vindictively did increase the sentence, certainly it can’t be due process.

And I have indicated that Maryland has followed the similar rule they used the term long before they voted —

Potter Stewart:

Long before this Court enunciated such a rule?

Edward F. Borgerding:

Since 1896.

Potter Stewart:

Right.

So there is no question about the full retroactivity if that’s the proper word for that basic holding under the due process clause of the Fourteenth Amendment.

You would — we — you’re in agreement on that as I understand it?

Edward F. Borgerding:

As far as the vindictiveness is concerned.

Potter Stewart:

That’s — and that was the holding of Pearce?

Edward F. Borgerding:

Yes but now as far as the —

Potter Stewart:

And Pearce went on to say that in order to insure —

Edward F. Borgerding:

Yes, well now I don’t think that the rule, well, of course if someone is vindictive in giving the sentence that would violate the constitutional principle but I think that we have a similar situation here as to the McCarthy rule.

That the rule is to prevent the violation of a constitutional principle and this is the rule in Pearce as I view it is to prevent a violation to with here of giving an increased sentence for —

Potter Stewart:

That’s right.

Edward F. Borgerding:

–vindictiveness.

Now, I would maintain that since — that the rule itself should not be retroactive and citing the but — now my time is running out, but citing the three purposes that this Court has used to measure retroactivity that certainly there is no question as to the purpose.

The purpose would not be served by making it a retroactive because it is to ensure that every defendant it was given a harsher sentence on retrial is not given that sentence out of vindictiveness and were to alleviate the fear of vindictiveness and its chilling effect by spreading it on the record so that the appellate judge or a reviewing court can see that.

Edward F. Borgerding:

Now, you cannot say and I quote with our statistics would indicate that all persons that received additional time did not receive that out of vindictiveness and that the evil sought to be remedied by the new procedural rules herein, does not per se exist in every case.

Plus the fact that the defendant does have a remedy still under collateral proceedings, post conviction and/or habeas corpus on it, although admitted difficult to prove.

I agree with Mr. Justice Stewart that the question of reliance upon the fact that a court did not have to set forth the reasons would be based in Stroud versus United States and also in our own state on Hoves versus Maryland and the Mitchell case.

I — we do present some problems as to the effect on the administration of justice, exactly how that this rule is applied retroactively, how is the procedure going to be setup, is — that the new judge give a sentence based on the record or the transcript?

Does he just assume the old sentence which this Court has held that has been nullified and it presents a great many, the problems that must be faced and it could best be left unanswered by making it the rule itself prospectively rather than — and prospectively from June 23, 1969, the date of the Pearce decision, thank you.

Warren E. Burger:

May I ask you just one other question?

Edward F. Borgerding:

Yes sir.

Warren E. Burger:

I am sure it could be spelled out this record.

Was the affidavit of the judge in the second trial, Judge Pugh available in the files when petition for the writ was filed here or when it was granted?

Edward F. Borgerding:

It was after it was granted, Your Honor.

Warren E. Burger:

It was — I notice that it’s dated in October 1969 and that the writ was granted in some time in 1968.

Edward F. Borgerding:

Yes the —

Warren E. Burger:

Is that right?

Edward F. Borgerding:

June — Oh, I think it was granted the day that you decided Benton, Benton versus Maryland, Pearce versus North Carolina.

Warren E. Burger:

But at that time it was perfectly clear that the explanation of Judge Pugh was not before the Court in granting certiorari?

Edward F. Borgerding:

Oh no sir and I requested that because of what I consider the directive in the —

Warren E. Burger:

If you do this to mediate the problem of the June 23, 1969?

Edward F. Borgerding:

Yes.

After I’ve read the Pearce case, I thought it would be best that the Court have that information.

Potter Stewart:

So your argument basically is that by reason of this affidavit, there was substantial compliance with the rule of the Pearce case and if — and secondly if you’re mistaken about that, then the rule should not be retroactive?

Edward F. Borgerding:

I don’t think that — I don’t mean to imply that.

I think that that affidavit should serve as a substitute for the rule and the Pearce case then.

Potter Stewart:

No, but what I mean to say is —

Edward F. Borgerding:

Only to the facts or reasons why the Court sentenced this man to this particular sentence.

Potter Stewart:

Which in your submission is — shows that the reason he sentenced him to a higher sentence was not in any part based upon vindictiveness and therefore there was —

Edward F. Borgerding:

That is correct.

Potter Stewart:

— substantial compliance with the rule of the Pearce case.

Did I misunderstand you?

Edward F. Borgerding:

No sir.

Warren E. Burger:

Now I take it that suppose it could be arguable at least that Judge Pugh having in mind the 1896 rule in Maryland going back to 1896, had all these things in mind substantially at the time he sentenced him in the second trial?

Edward F. Borgerding:

Well I — that could be easy answer, would be say yes but I quite honestly —

Warren E. Burger:

Well, I said —

Edward F. Borgerding:

But yes sir arguable.

Warren E. Burger:

Arguable?

Edward F. Borgerding:

Yes sir, it could be arguable, absolutely.

Warren E. Burger:

That is that if since 1896, this has been the rule in Maryland, I think as someone has told us several times today that it’s presumed that judges do what they are supposed to do?

Edward F. Borgerding:

Yes I would argue that.

Warren E. Burger:

I think your friend argued that?

Edward F. Borgerding:

Yes sir.

Thank you.

Warren E. Burger:

You have about 10 minutes counsel.

Robert Anthony Jacques:

Yes.

Mr. Chief Justice, may it please the Court.

With all due deference to my brother at the bar, I frankly find his argument almost totally irrelevant to the issues before the Court today.

First of all to go immediately to the question of vindictiveness, very frankly I do not understand that the Pearce case is limited to where the second judge is being vindictive.

I took it to mean that this was a means of taking off any chilling effect on the right of appeal.

Now, I have never contended that Judge Pugh was vindictive.

I know Judge Pugh personally.

I was a law clerk in that courthouse and the state has consistently been setting up with all due respect to Saint Thomas Aquinas, the straw man that the vindictiveness of the second trial judge is the issue before the Court.

It has nothing to do with this appeal.

I am saying to the Court that if Judge Pugh had the highest motives in the world, the ultimate fact of the matter is that Dennis Moon was sentenced to an additional eight-years imprisonment.

The motivation, please the Court is —

Warren E. Burger:

Well you don’t read Pearce the way your —

Robert Anthony Jacques:

Absolutely not Your Honor.

I do not read it to be restricted to vindictive second sentencing judges.

Probably, it was a bad administration.

Robert Anthony Jacques:

Yes sir.

You would like to make the majority opinion appears at issue.

Justice Douglas and I thought that it was in fact a double jeopardy problem.

Robert Anthony Jacques:

That’s correct Your Honor.

Robert Anthony Jacques:

But more to know, but you’re — (Voice Overlap)

But Your Honor, I think of reading the majority, plurality opinion in Pearce which was based on due process.

Potter Stewart:

That was the court opinion?

Robert Anthony Jacques:

The court opinion which was based as I recall on due process.

I don’t recall that the Court stated that it was restricted to where there was factual evidence that the second trial judge had been vindictive and malicious in his sentence.

And I think that the state is very cleverly trying to restrict this argument to that issue which is I submit totally irrelevant to these proceedings.

The only issue here is whether Dennis Moon received additional time in jail.

He obviously —

Potter Stewart:

Well he did, that’s not an issue, that’s a fact.

Robert Anthony Jacques:

And the issue then Your Honor is that punishment, is that increased punishment within the meaning of Pearce.

I submit to — since I submit to you that it is an increased punishment and I submit that vindictiveness, malice are totally irrelevant.

It is simply a different judicial philosophy between two nisi prius judges, that is all that this case is based upon.

And I submit to “President Truman” that the other charges are red herrings to be brought up here.

They have nothing to do with the armed robbery charge.

That is the only charge upon which the appeal was based.

I believe there is a question as to why the other charges were in appeal.

Very candidly Your Honor, I think, I’m a rather pragmatic lawyer where a man is giving concurrent or suspended sentences, I’m not about to appeal.

And without the authority of North Carolina versus Pearce, I wouldn’t dare to have entered appeal in this case and so I chose not to.

Thurgood Marshall:

Mr. Jacques.

Robert Anthony Jacques:

Yes Your Honor.

Thurgood Marshall:

I would assume that you had experience where a one judge is noted for giving out stiff sentences?

Robert Anthony Jacques:

Absolutely.

Thurgood Marshall:

And another one is not?

Robert Anthony Jacques:

That’s correct.

Thurgood Marshall:

And if you go before the stiff man, aren’t you losing some of your rights or something?

Robert Anthony Jacques:

Is Your Honor talking —

Thurgood Marshall:

It’s never been raised, it’s obviously is not true?

Robert Anthony Jacques:

Well, what is — it is —

Thurgood Marshall:

That is a violation — you don’t have a right to go before a lenient judge?

Robert Anthony Jacques:

Oh no, I’m not saying that Your Honor.

Robert Anthony Jacques:

I’ve never raised that.

Thurgood Marshall:

Well you don’t have a right not to go before heavy handed judge?

Robert Anthony Jacques:

No, I’m not saying that either.

Thurgood Marshall:

Well, if this man had gone before a judge that had heard the same testimony and had cut his sentence, that would have been fine?

Robert Anthony Jacques:

Oh, obviously, I mean certainly.

But if Your Honor is asking me if the first judge had given Moon 20 years, whether that would have been improper, I will tell this Court quite frankly, if we’re getting into an area of judgment, there was nothing improper about giving Moon 20 years, In all candor, well, perhaps I shouldn’t say but let’s just say I’ve never argued that the sentence itself was harsh.

That is I submit with all due respect totally irrelevant.

The first judge passed a valid sentence, the second judge passed a valid sentence.

Now, the fact of this increased knowledge in all of this is again completely outside of the record in this case.

I think — no, certainly this Court knows better than I would admit, when it talks about conduct subsequent to the first trial.

With all due respect to my brother, there is no conduct subsequent to the first trial in this case except a second trial and certainly I would hope the state is not going to argue that because he plead guilty at the first trial and didn’t plead guilty at the second trial that that is conduct for which the second trial judge can take a judicial notice.

Warren E. Burger:

Now wait a minute, you’ve lost me, he didn’t plead guilty at the first trial?

Robert Anthony Jacques:

No, the question was raised if it please the Court as to the fact that he did not plead that he admitted his guilt at the end of this first trial but denied his guilt at the end of his second trial prior the sentencing.

Warren E. Burger:

He did more than that, he did more than that.

His testimony — his testimony under oath was very different in the first trial and the second trial.

It wasn’t in the sentencing process alone?

Robert Anthony Jacques:

Now, if I recall Your Honor the —

Warren E. Burger:

Well, I have just read that —

Robert Anthony Jacques:

Well —

Warren E. Burger:

— record out of the appendix.

Robert Anthony Jacques:

At the first trial, he said he did it.

At the second trial, he denied he did it.

Warren E. Burger:

Well that’s quite a difference, isn’t it?

Robert Anthony Jacques:

That is quite a difference but as the Court — I — with all due respect, I don’t think the Court can say that that is conduct justifying subsequent to his first conviction which would justify an increased sentence.

I can’t — if that’s part of his trial —

Warren E. Burger:

Some judges would think so?

Robert Anthony Jacques:

Well, I — I interpret it very strictly Your Honor that conduct means the events which the Court has talked about perhaps as being a disorderly prisoner, perhaps creating further crimes.

Byron R. White:

Like lying perhaps?

Robert Anthony Jacques:

Like lying — you mean not telling the truth or being in prison?

Byron R. White:

Lying about, you know not talking?

Robert Anthony Jacques:

No Your Honor, I don’t think that’s conduct.

Certainly, conduct to me mean further trouble very candidly and if there is going to be further trouble, I think that should be subject to further proceedings.

But I think conduct means as this Court as I think meant in the three opinions in Pearce for facts and I know Mr. Justice White that you interpreted conduct to mean any events which the second trial judge knew which the first trial judge did not, but I think that by your opinion —

Byron R. White:

Well that didn’t went on.

Robert Anthony Jacques:

I beg your pardon?

Byron R. White:

I didn’t prevail on that.

Robert Anthony Jacques:

That’s correct, but I think Your Honor was acknowledging that the majority, the court opinion restricted conduct to facts that occurred after the first conviction.

Byron R. White:

Well I — if that doesn’t carry you so far as you attempted to go long ago, and to say that committing perjury at the second trial isn’t an event?

Robert Anthony Jacques:

Well —

Byron R. White:

Since the first trial?

Robert Anthony Jacques:

If it please the Court, I would have very strong doubts about holding that to be perjury in itself.

Byron R. White:

I know you do but that’s the issue in the case.

Robert Anthony Jacques:

But well — but the Court would have to hold that that was perjury which it seems to me would have — under Maryland law would have to be a separate trial on that question of perjury.

Perjury is a felony under Maryland law and you can’t — if it please the Court, I don’t think the second trial judge could then say look at the record of the first trial and say you’re lying Moon.

You admitted at the first trial you did it and you’re not admitting it today.

I therefore hold that you’re guilty of perjury and under the authority of North Carolina versus Pearce, I sentence you to an additional eight years in jail.

Frankly Your Honor, that’s just a —

Thurgood Marshall:

Well did it — was the second testimony under oath?

Robert Anthony Jacques:

Oh!

Your Honor I don’t think so very frankly.

Thurgood Marshall:

Well usually it’s not.

Robert Anthony Jacques:

It’s not, he stood up.

I was not the trial counsel, but he stood up and Judge Pugh said “do you have anything to say?”

And he said I didn’t do it.

Well, that’s what I assume.

Robert Anthony Jacques:

He didn’t do it.

And I very frankly, it would be most reluctant to ever prosecute a case of perjury based on those circumstances.

Now, as to retroact — I might say Your Honor also that the courts supplying a affidavit, some three-and-one-half years later conceded that Pearce did not exist is if I may be facetious, bad retroactivity as opposed to the good retroactivity, I’m trying to urge in holding Pearce to be fully retroactive.

If it is in effect a nunc pro tunc rationalization of the sentence.

Now, if Judge Pugh had stated reasons at the closing argument, Judge Pugh felt that this man had committed a bad crime and deserved 20 years.

Robert Anthony Jacques:

That’s the long and the short of it.

And very frankly I am not arguing with Judge Pugh that he didn’t deserve every day of those 20 years.

That is not the issue before the Court today and I think that the rest of it about other charges, about they’re being malice is totally irrelevant to the issue before the Court, I’m sorry, I believe my time is up.

Warren E. Burger:

Thank you Mr. Jacques.

Thank you General for your submission.

The case is submitted.