Napue v. Illinois

PETITIONER:Napue
RESPONDENT:Illinois
LOCATION:Roosevelt Bar and Tavern

DOCKET NO.: 583
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 360 US 264 (1959)
ARGUED: Apr 30, 1959
DECIDED: Jun 15, 1959

Facts of the case

Question

Audio Transcription for Oral Argument – April 30, 1959 in Napue v. Illinois

Earl Warren:

Number 583, Henry Napue, Petitioner, versus People of the State of Illinois.

Mr. Leighton, you may proceed.

George N. Leighton:

Mr. Chief Justice, may it please the Court.

This Court granted certiorari to review the judgment of the Supreme Court of Illinois in which post-conviction relief was denied to the petitioner.

The federal question is whether petitioner was denied due process of law in the Illinois criminal court because perjury was knowingly used in obtaining petitioner’s conviction for the alleged crime of murder.

Petitioner is now serving a sentence of 199 years in the Illinois State Penitentiary pursuant to the state court conviction.

In its judgment to the opinion, the Supreme Court of Illinois held that there was perjury knowingly used in petitioner’s prosecution.

The facts arose in this fashion, if Your Honors please.

In an indictment in the state court, the petitioner was prosecuted for a crime that was alleged to have been committed in 1938.

The trial took place in 1940.

The principal witness against the petitioner was a man who previously had plead guilty under a separate indictment in which he was charged with the same murder.

He was the only witness that the prosecution could rely upon because the other alleged eyewitnesses had moved away from Illinois.

It is conceded by the prosecution in this particular case that without this man’s testimony, the petitioner’s conviction could not have been obtained.

The man’s name was Hamer.

He was bought back from the penitentiary on habeas corpus.

On cross-examination, counsel for petitioner here, the defendant in the original prosecution, asked this witness whether or not he was testifying freely and voluntarily, and he said, “Yes,” that he was.

On redirect examination, the prosecutor asked this witness directly, “Has the judge,” naming the judge, “promised you any consideration for your sentence,” and there was a negative answer.

And then he asked him, “Have I,” meaning himself, the prosecutor, “promised you any consideration?”

And there was a negative answer.

The witness was dismissed.

Some six years later, this prosecutor resigned from the Office of the State’s Attorney of Cook County.

And on his own, filed what in Illinois is called a coram nobis petition.

At that time, the post-conviction law of Illinois had not been adopted.

It was supported by this prosecutor’s affidavit in which he described in detail the agreement that had existed between him and this witness by which this witness promised that he would testify against the petitioner and furnish evidence which the prosecutor thought was indispensable to obtain his conviction in return for an expressed promise that he, the prosecutor, would recommend to the appropriate authorities the reduction of this witness’ then 199-year sentence.

In fact, the prosecutor was so strong in his language that he characterized this agreement as a compact between this witness and the lawfully instituted authorities of the State of Illinois in return for his testimony against the petitioner, flatly contradicting the testimony of this principal witness at the trial.

The petitioner then obtained a copy of this coram nobis petition and this affidavit of this prosecutor and made it a part of his application for post-conviction review in the Illinois court.

There was a hearing held and relief was denied.

There was a petition for writ of error to the Supreme Court of Illinois, and the Supreme Court affirmed, holding as a matter of fact that there was perjury and that it was knowingly used according to the dissenting opinion construing the majority opinion, five judges voting for affirmance and two judges dissenting including the Chief Justice of the State of Illinois.

But the majority opinion went on the ground that this perjury, though it was used, somehow, the Supreme Court said, was explained to the jury by what they characterized as subsequent testimony.

A reading of the record, as we point out in the brief, shows that when Hamer testified in direct answer to the questions put to him on redirect examination, there was no further testimony by Hamer, and there is no evidence of any other kind going to the jury.

George N. Leighton:

The Supreme Court of Illinois seemed to adopt the doctrine which I’m not familiar but there is something ameliorating about revelation of perjury and we say, in our brief, we know of no — no such doctrine that if perjury is explained to a jury, it doesn’t amount to the infraction of the guaranties of due process which Your Honors have said.

Potter Stewart:

I don’t quite follow on you there, Mr. Leighton.

I read that same statement in your brief, and I don’t — I don’t quite follow what you mean by saying that.

George N. Leighton:

Well, if I understand the Supreme Court of Illinois correctly, Your Honor, in the opinion, the Supreme Court said that the perjury was revealed to the jury.

And because it was revealed to the jury, therefore, there was no denial of due process.

Potter Stewart:

Well, the — when the — when the witness — when Hamer first testified, he said nobody promised him anything.

I don’t have it.

I’m not reading it, but I’m —

George N. Leighton:

That’s right.

Potter Stewart:

— paraphrasing it from my memory.

George N. Leighton:

That’s right.

Potter Stewart:

And then — and then on cross-examination, he said, “Well, as a matter of fact, somebody from the public defender’s office did say he’d use his best efforts on my behalf.”

George N. Leighton:

That’s right, Your Honor.

Potter Stewart:

And then on redirect examination, he told the — Mr. Myers, the prosecuting attorney, that Mr. Myers hadn’t promised him anything at all and that was —

George N. Leighton:

That’s right.

Potter Stewart:

— that — that’s about the way the record shows.

George N. Leighton:

That’s what the record shows.

Potter Stewart:

And so, the fact is that in — that in answer to the last question on redirect examination, that was perjury and the — and the perjury was not revealed to the jury, wasn’t it?

George N. Leighton:

That’s right.

But the Supreme Court —

William J. Brennan, Jr.:

That’s the reason I didn’t quite understand —

George N. Leighton:

Yes.

William J. Brennan, Jr.:

— I didn’t follow your statement about revealed perjury.

George N. Leighton:

Well, the Supreme Court’s opinion, which appears on page 72 of the record, which, I think, is an erroneous construct of the record, if I may say so, Your Honor, those on the theory that the perjury which had been committed was revealed to the jury.

Now, just where it was revealed, it doesn’t appear as far as we can tell.

And our position is that the Supreme Court erred in this construction of the record that the perjury committed by him was never revealed because Hamer was discharged as soon as he made this answer.

I might say this in order to emphasize the point.

The gravamen of the injury here occurred on redirect examination.

Mr. Myers’ affidavit clearly shows that he was very familiar with Hamer.

He had questioned Hamer at the time of the crime.

George N. Leighton:

He had prosecuted Hamer.

He then prosecuted Webb.

He had prosecuted Poe who was executed.

And I’d like to call Your Honors’ attention to a fact, which is significant to me.

It is common practice in Illinois Criminal Law which I am familiar in these — years at the bar, that where there are multiple defendant, the practice is to join them all in one indictment and charge them all as principles under our principal and accessory statute.

It is significant, it seems to me, that in this case, they indicted each of these alleged defendants separately, indicating to me and this record is assessable to this understanding that when Hamer was first arrested, he never mentioned Napue’s name because if he had, they would have returned one indictment against Webb, Napue, Hamer and Poe.

And under our Illinois practice, they could — they could prosecute them each seriatim as they were apprehended.

It is significant, it seems to me, in this record that each of them was indicted separately and prosecuted separately and in the record is shown the numbers of their respective indictment, indicating that when Hamer first spoke to — to Myer, he did not tell Myer, who was the principal prosecutor, about the existence of Napue.

Now —

Earl Warren:

Was any action they have taken against the District Attorney?

George N. Leighton:

No, Your Honor.

Earl Warren:

None with it?

George N. Leighton:

No.

You see, Your Honor, the — the publication — the publication of this — of this affidavit attracted attention and it was a — a kind of attention that seemed through some people to have been laudatory.

He was the spectacle of the prosecutor who had sent the man to 199 years in penitentiary, now asking the Court to give him relief.

It painted a very beautiful picture the way the newspapers took it.

It didn’t paint such a good picture to Napue who was in the prison because Napue read the newspaper story and wrote to the clerk and got a copy of Mr. Myers’ affidavit.

Earl Warren:

Well, if he was — if — if he was stating the fact in his affidavit, wasn’t he guilty of subornation of perjury?

George N. Leighton:

It would appear so.

If Your Honor should read Mr. Myers’ affidavit carefully, it even contradicts Napue’s — Hamer’s testimony —

Earl Warren:

Yes.

George N. Leighton:

— because Mr. Myers’ testimony creates the impression that when Hamer was arrested, Hamer said that he didn’t know anything about this robbery that allegedly occurred in 1938.

Hamer’s testimony which is incorporated here in this record was to the effect that when he left on this trip with these other alleged co-defendants, he knew they were going to rob this place.

Hamer’s testimony is explicit on that point.

Mr. Myers’ affidavit tries to paint the picture that Hamer was an unwilling participant in this robbery.

Earl Warren:

Well, just a matter of interest.

Have the statute of limitations run on — on subornation of perjury at the time the District Attorney made this affidavit?

George N. Leighton:

Yes, it was.

It will be three years.

And this was in 1946 in the —

Earl Warren:

Yes.

George N. Leighton:

Well, may I — may I answer Your Honor’s question this way?

If perjury was committed by the District Attorney, the Assistant State Attorney, it would have occurred by him.

It would have been committed by him at the time he filed his — his affidavit and — and any law enforcement authority would have three years under Illinois law —

Earl Warren:

No, what I was — what I was saying, I don’t want to prolong, but what I was saying is if he by asking these questions and inducing the — the witness to deny that he had such an agreement with him if it was perjury for the — for the witness to answer as he did is certainly was subornation of perjury —

George N. Leighton:

Oh, certainly.

Earl Warren:

— on the part of the —

George N. Leighton:

Oh, certainly.

Earl Warren:

— District Attorney —

George N. Leighton:

Yes.

Earl Warren:

— wasn’t it?

George N. Leighton:

It will be three years after that date.

Earl Warren:

I supposed it will be three years after (Voice Overlap) —

George N. Leighton:

After that date.

Yes, Your Honor, on Illinois practice.

Earl Warren:

I don’t want to take any more of your time.

George N. Leighton:

On Illinois practice.

Now, I’d like to devote just a moment to the contentions of the respondent with regard to the brief filed by the petitioner.

The respondent relies in Hysler versus State of Florida which, we submit, is clearly distinguishable.

In the Hysler case, what the Supreme Court of Florida said and which Your Honors upheld was that the coram nobis practice under Florida law complied with the requirements of due process, the provisions which Your Honors have said should be maintained in some State, in some form, by which post-convicting relief can be granted one who claims that his conviction denied him due process.

But Supreme Court of Florida held plainly that on Hysler’s application for coram nobis, he did not make out a case by which he could have obtained relief even if he proved the allegations of the petition and the case was peculiar on its facts because as Your Honors pointed out, Hysler had remained in jail for four years.

Then on the eve of the execution of one of his co-defendants, the co-defendant issued an affidavit exculpating Hysler.

Now, that case on its facts was difficult to handle like in (c).

But in the dissenting opinion of Mr. Justice Black and two other Justices of this Court dissented holding that it was not a matter of testing the credibility of the affidavit at that state of proceeding but rather, if the allegations were such as to show a denial of due process, Hysler was entitled to a hearing which the denial of the application did not grant him.

But in this case, in our case, the Supreme Court of Illinois has found as a matter of its judgment that there was perjury here.

And I call Your Honor’s attention to fact that in an earlier phase of the post-conviction proceeding, the petitioner here, Napue, had been denied a hearing and the record shows that he took a — an application for writ of error to the Supreme Court of Illinois and the Supreme Court of Illinois remanded the denial of a hearing, and this appears on page 34 and 35 of this record, and found as a matter of fact that his allegations in the post-conviction petition entitled him to a hearing.

And this judgment of affirmance, denial of relief, came after the reversal in which the Supreme Court ruled on his earlier writ of error proceeding.

Potter Stewart:

Now, on those — among the allegations in that earlier writ however, wasn’t there a claim of the use — unconstitutional use of a coerced confession?

George N. Leighton:

That’s right, Your Honor.

Potter Stewart:

And doesn’t it appear now in the record of this case as a record on page 45 and 57 and maybe elsewhere that no — no confession was used in the trial?

George N. Leighton:

There’s no — no confession was used.

I might say Your Honor, I represented the petitioner on this hearing and I have to conclude from a careful reading of the record that what had occurred was this.

There were some oral testimony by one or two of the police officers about a confession but there was no confession actually used.

In fact, Mr. Myer concedes in the — in the hearing and we finally got him to concede, it appears on page 57 of the record, that no written statement was taken from petitioner.

This was a — a construction of the — of the record by the — by the petitioner, which, I think, was not supported by the record.

I think what occurred was that he was asked some questions and some of the officers who testified made some statement of one kind or other in — in implying that he had made a confession, oral in term.

But we could not find any specific reference in the record of the trial that I examined to sustain this contention of the petitioner.

Potter Stewart:

As I read the record at page 45, the petitioner himself says, and I’m quoting now, “They did not use any confession in my trial.”

George N. Leighton:

That’s right, Your Honor.

He did — he did say that.

They didn’t use it.

Potter Stewart:

Now, while we’re on the facts, Mr. Leighton, you’ve confront yourself, as I gather, the — perhaps the Supreme Court of Illinois did to the version of the facts contained in the application for a writ of error coram nobis on behalf of Hamer which was filed by Myers.

George N. Leighton:

That’s right, Your Honor.

Potter Stewart:

Myers also testified in this very case, didn’t he, and his testimony appearing on pages 50 to 60 in the record?

George N. Leighton:

That’s right, Your Honor.

Potter Stewart:

And wouldn’t it be fair to say that his testimony particularly that on page 58 and 59 very substantially from what’s contained in his application for the writ of error coram nobis?

George N. Leighton:

Yes, Your Honor.

It varies great deal.

In fact, at this hearing, Mr. Myer had testified —

Potter Stewart:

On behalf of the State actually.

George N. Leighton:

On behalf of the State in defense of the petition of habeas corpus.

His testimony in this case contradicts his — his affidavit that he filed in behalf of Hamer.

His testimony here was that he promised Hamer that he would intercede with the law enforcing authorities if he were satisfied, eventually, that he was telling the truth.

Well, I have a little difficulty following all that except to agree with Your Honor that his testimony here contradicts his affidavit.

Now —

Potter Stewart:

Was that actually an affidavit or was it an unsworn pleading?

George N. Leighton:

No, Your Honor, it was an affidavit.

It — the — the sworn part of the affidavit appears on page 20 —

Potter Stewart:

4.

George N. Leighton:

— 24, his affidavit, you see, in support of the — of his petition —

Potter Stewart:

I see.

George N. Leighton:

— appears on page 24 of the record and sworn to him — by him.

Potter Stewart:

And insofar as there is a factual conflict, I — it’s your position, as I understand it, that the Illinois Supreme Court, the — the majority of the Court, the Court itself found the facts as they appear, substantially as they appear in the affidavit.

George N. Leighton:

That’s right Your Honor.

Potter Stewart:

And that the way therefore foreclosed by that finding?

George N. Leighton:

That’s right.

I — I’m — I’m — my —

Potter Stewart:

Is that your position?

George N. Leighton:

That’s right, Your Honor.

Thank you.

I wish to reserve 10-minute, if Your Honor please, for rebuttal.

Earl Warren:

You may, Mr. Leighton.

George N. Leighton:

Thank you.

William C. Wines:

May it please —

Earl Warren:

Mr. Wines.

William C. Wines:

— the Court.

Your Honors, Mr. Leighton has made a fair statement of the case as he invariably does.

However, it may assist the Court in his consideration of this case by stating the facts a little more elaborately than he did and I refer not only to the facts that he omitted that helped the State but facts that he omitted which, I think, may help the petitioner.

The perspective of the facts is this.

On the day in 1938 in question, four men entered a cocktail lounge near the wee hours of the morning armed and undertook to execute a holdup.

An off-duty police officer, police officer off-duty by the name of O’Malley drew his gun and started shooting.

Officer O’Malley was fatally wounded in the mallei, the affray and died some nine days later.

Also slain in the affray was one of the robbers named Townsend.

One of the participants in the robber was — in the robbery was this witness Hamer.

Two other men, one of whom Hamer identifies as petitioner Napue took Hamer out.

Still a fifth man was at the wheel of a car.

One man, Your Honors will recall, one of the robbers had been slain and was in the cocktail lounge.

The policeman was mortally wounded.

These two men who were not hurt took Hamer who was badly wounded in the chest and the third man drove Hamer with them to a doctor’s office.

Hamer was left at the doctor’s office.

William C. Wines:

The doctor administered first aid, perhaps saved his life, and called the police.

Hamer confessed — well, that isn’t quite a fair statement.

Hamer admitted participating in the robbery but said at first that he was an involuntary participant, that the other men told him that they were going for an automobile ride that they stopped into the cocktail lounge, that he didn’t know that any robbery was meditated and that somebody handed him a shotgun and said, “This is a stickup,” and that he wasn’t an involuntary participant in the robbery.

He identified Poe, Webb and petitioner, Napue, as three of the other four participants in the robbery, the fourth being, of course, Townsend who had been slain in the robbery.

Poe was apprehended, tried, convicted, sentenced to death and has been executed.

Petitioner was apprehended some two years after the original occurrence.

It appears that he made a confession.

It does not appear that the confession was used in his trial.

It appears that he reenacted the crime.

It doesn’t appear whether that reenactment was testified too at his trial.

He was tried and on the trial, Hamer was brought from the penitentiary and testified against him.

I think with the Chief Justice’s permission, so to be absolutely accurate, I would like to read some of the language in which perjury admittedly consists.

William J. Brennan, Jr.:

Mr. Wines, (Inaudible)

William C. Wines:

Yes, Your Honor.

We don’t question the fact.

William J. Brennan, Jr.:

We may — we may determine this case on the admission then that there was perjury on —

William C. Wines:

I don’t see anyway to avoid it and then meted, Your Honor, after — after studying this record.

The Supreme Court of Illinois found that there was.

And while you — Your Honors can review a — a State Supreme Court’s finding of fact, I think one is favorable to the petitioner just as you can once the adverse of the petitioner.

I am convinced there was perjury in this record myself.

Now, was Your Honor —

Earl Warren:

Oh, I — I thought your going to leave —

William C. Wines:

Yes.

Earl Warren:

— in some place and I was just going far away where you were reading from.

William C. Wines:

Well, I — I — at several places in the record, I will read from the dissenting opinion which begins at page 73 in the brown-covered transcript of the record.

Mr. Myers, the prosecuting attorney is interrogating Hamer and he asks, “Did anybody give you a reward or promise you a reward for testifying?”

Answer, “There ain’t nobody promised me anything,” after some material that neither the petitioner nor the State deem as important to print, Hamer is asked by Myers, “Directing your attention to that time and place in Statesville, did you tell Mr. Steinberg,” one of Napue’s attorneys, “that you were drunk that day?”

“No, I didn’t.”

I don’t want to read all of this.

Hamer had pleaded guilty and been sentenced.

William C. Wines:

He testified that a man whom he thought to be an assistant public defender had promised to recommend leniency to the proper authorities if he would testify against his co-defendants.

He said he thought the man was a public defender.

On redirect examination, he testified that the trial judge had promised him nothing.

And the last question he was asked, “Have I,” that’s Mr. Myers, the prosecuting attorney, “promised that I would recommend any reduction of sentence to anybody?”

The answer is, “You did not.”

Now, Myers deposed in his affidavit that in fact although him — he, himself, elicited this testimony, “You have not made me any promise.”

He had promised the petitioner that if the other witnesses, the other participants corroborated Hamer’s claim that he was an involuntary participant in the robbery, he would recommend a reduction in the sentence.

But the Supreme Court of Illinois said that petitioner could hardly have understood Hamer’s promise to be other — anything other than a categorical promise to recommend leniency if he would cooperate in testifying against his co-defendants.

Now, the question that emerges from this record is this, Your Honors, and its foreknown which the Supreme Court of Illinois divided by two.

Potter Stewart:

Incidentally and before you leave (Voice Overlap) —

William C. Wines:

Yes, Your Honor.

Potter Stewart:

This probably is entirely irrelevant.

I’m just curious.

What was the upshot of the application on behalf of Hamer?

William C. Wines:

I don’t know.

Maybe Mr. Leighton knows.

Potter Stewart:

That’s —

William C. Wines:

But I — I don’t know on the record or off the record.

Tom C. Clark:

What is his sentence?

William C. Wines:

Hamer’s sentence was 199 years, as I recall.

Now, the question as phrased in our brief is, I think, carefully and accurately phrased.

We thus phrase it.

Petitioner was convicted of murder upon inter alia the testimony of an accomplice who first denied then admitted that he had been promised the recommendation of leniency for his testimony.

However, the witness testified falsely as to the author of the promise of leniency, ascribing the promise to a man who may believe to be an assistant public defender when, in fact, the testimony — the promise was that of the prosecuting attorney.

The prosecuting attorney vowed safe to the Court no revelation of the falsity of the testimony and conviction ensued.

The question is the trial court and the Supreme Court of Illinois held that the jury was surprised by Hamer that he had lied.

They were not apprised, however, as to the author of the false testimony.

The majority of the Supreme Court of Illinois concluded that in no reasonable likelihood could the identity of the author of the admitted promise of leniency have resulted in an acquittal or any lesser sentence in that meted to petitioner and held that there had been not any denial of that fairness which is of the essence of due process avowal.

They affirmed the trial court’s dismissal of petitioner’s post-conviction proceeding, two justices dissent.

Those are the facts and that is the question.

William C. Wines:

And I have very little to say other than to argue with — in this fashion.

The Supreme Court says in its opinion that it doesn’t appear whether petitioner’s confession was used against him or not, and it doesn’t.

It does appear that no — no writing signed by petitioner or allegedly signed by him was introduced.

It does appear, however, that upon being apprehended, he readily admitted his guilt and reenacted, voluntarily reenacted the slaying.

It doesn’t appear that he testified in his own behalf.

Of course, he didn’t have to.

The witness Hamer first said, “Nobody has promised me nothing.”

He later retracted that perjurious statement and said that in fact a promise of recommended lenity had been made but he lied about who made the promise, attributing it to an assistant public defender rather than to the prosecuting attorney.

Now, the Supreme Court of Illinois respected the rule of Mooney against Holohan and sequent cases.

And it — there’s still the essence of its holding in this case in language that I should like to cite briefly, if I may have the Chief Justice’s permission.

The Supreme Court of Illinois said, “Where a conviction is obtained by the — a presentation of testimony known by the prosecuting authorities to be perjured, the constitutional requirement of due process is not satisfied,” citing authority.

“To show a denial of due process within the meaning of this rule does not necessary that the false testimony be concerned directly with a question of guilt.

Even though it bears only upon the credibility of the witness, it may have the effect of depriving the accused of a fair trial.”

Then the Supreme Court adds immediately this sentence, “Whether such effect is present, depends, of course, upon the circumstances of the particular case.”

And the Supreme Court of Illinois held that the jury knew that Hamer had been promised something that he was testifying with an expectation of reward and that it couldn’t, in any reasonable likelihood, have made any difference to the jury whether the author of the promise was a member of the staff of the public defender or of the staff of the prosecuting attorney.

Two justices thought there was a vital difference between the two functionaries, the public defender and the prosecutor and the Senate.

That’s the position of Illinois, Your Honors, that not that it was a burden that — that — once a man is shown as — as petitioner did show that perjury has been knowingly suborned by prosecuting officials, it must fairly appear, affirmatively appear that the perjury couldn’t, in any reasonable likelihood, have affected the result once it’s known that perjury is committed even though there isn’t a disclosure that the witness has correctly identified the man who made the promise.

We say that —

Potter Stewart:

Isn’t that a — isn’t that a contradiction in terms and it was known that some perjury was committed but the jury was never told how much perjury was committed.

Isn’t that really the fact of the matter?

William C. Wines:

That is the fact of the case, Your Honor.

I don’t want to disassemble —

Potter Stewart:

Yes.

Tom C. Clark:

— the facts at all.

Those — those are the facts.

The Supreme Court of Illinois, canvassing the entire record, held that there was no reasonable likelihood of any prejudice to petitioner and therefore held that he had not been denied due process.

We asked the Court to affirm that holding.

To answer the Chief Justice’s question, Mr. Hamer, so far as I know, has never been prosecuted.

Statute of limitations is run on a prosecution whether it is run on a disciplinary proceeding.

Disbarment is a highly debatable question under the Illinois law at the present time.

Felix Frankfurter:

Are you sitting down?

I — I just wonder.

What do you think the Hysler case has to do with this case?

William C. Wines:

Only this, Your Honor, that in the Hysler case, coram nobis was brought and there, the Court — a majority of this Court read the record as finding that no perjury had in fact been committed or if committed, it was not known to public officials.

The majority of this Court read the Florida Supreme Court’s opinion as passing upon the question of fact.

Felix Frankfurter:

Is passing upon the adequacy of the affidavits submitted to the Florida Supreme Court under its procedure that the Florida Supreme Court to decide whether there’s enough to raise the question of fact before the trial court.

I forget the name of (Inaudible)

William C. Wines:

That’s right.

That’s correct.

Felix Frankfurter:

Now, here’s an — here, the point is, there’s no question about conceded use of —

William C. Wines:

That’s true.

Felix Frankfurter:

— conceded use of perjury —

William C. Wines:

That’s true.

Felix Frankfurter:

— concededly used —

William C. Wines:

That’s true.

Felix Frankfurter:

— as the knowledge of the District Attorney.

William C. Wines:

That’s true.

Felix Frankfurter:

Well, now, what is the — how can you say — what’s the bearing of the Hysler case.

William C. Wines:

The Hysler case has this bearing and this bearing only and no other.

It holds that where the State Supreme Court has found that there is no substantial question of fact as to the denial of what Your Honor, Mr. Justice Frankfurter, called the essential fairness of the trial, that finding will be respected.

In this case, we have a finding that there was perjury but that the perjury was not of a kind that could, in any conceivable, readily conceivable likelihood, have contributed to the conviction and only asked that that be treated as a question of fact and although the —

Felix Frankfurter:

That is not a question.

Whether — you can call it a question of fact —

William C. Wines:

Yes.

Felix Frankfurter:

— but it’s an ultimate determination of whether or not there’s a violation of the Due Process Clause.

That’s what this is about.

William C. Wines:

That’s correct, Your Honor.

Felix Frankfurter:

Now, that wasn’t Hysler at all.

Hysler — the Hysler case raised the — raised the question whether the local Florida procedure by which you could go into the trial court if convicted and there established the fact that in fact, the District Attorney used perjurious testimony whether it is outside of the Due Process Clause to have a shifting process.

Thereby, the highest court of the State, on affidavit, is asked to determine whether there’s enough of an issue on that underlying question of fact, namely, can you made out a case to bring him to question to impeach the untaintedness of a verdict?

Felix Frankfurter:

Here, the question is, there was use of perjurious testimony —

William C. Wines:

That’s right.

Felix Frankfurter:

— can the State said, “Well, we look at the record and we say that it wouldn’t have made any difference if this fellow had never put on the stand or had never lied?

That’s right, isn’t?

William C. Wines:

Not — not precisely right.

Felix Frankfurter:

Well —

William C. Wines:

There’s a — there’s a little more —

Felix Frankfurter:

You add a touch of precision to it.

William C. Wines:

But there’s a little more than that, Your Honor.

There was perjured testimony.

Felix Frankfurter:

Knowingly used?

William C. Wines:

Knowingly used.

The jury knew that the man was a perjurer.

Felix Frankfurter:

Well —

William C. Wines:

That was revealed to the jury.

Felix Frankfurter:

That the jury knew that — but the jury didn’t know that it was the District Attorney that —

William C. Wines:

That’s right.

Felix Frankfurter:

— was stating —

William C. Wines:

That is right.

That is — that is —

Felix Frankfurter:

Well, that may make all —

William C. Wines:

— the nub of the matter.

Felix Frankfurter:

— the difference in the world.

William C. Wines:

I beg your pardon?

Felix Frankfurter:

That may make all the difference in the world.

The jury may recoil from bringing in a — a death sentence when it knew that the District Attorney was up to getting the witness to perjure himself.

Jury — a jury might be called even in Chicago.[Laughter]

William C. Wines:

If that is —

Felix Frankfurter:

Isn’t that true?

Am I drawing on fantasy?

Felix Frankfurter:

Is it just that?

William C. Wines:

No.

A jury might.

The Supreme Court of Illinois held that where they knew that the man was testifying with a hope of reward, it made no difference once the whole comment.

Felix Frankfurter:

Well, but is that the world of reality?

I should think the pressure exerted by the State is one thing, the pressure exerted by the assistant public defender is another.

Isn’t that true?

William C. Wines:

Well, they are — they are different things.

There’s no question about it, Your Honor.

Felix Frankfurter:

Well, they are very different things.

William C. Wines:

And the — the — I have stated the question and I think I have fairly stated the facts out of the considerations that move us to ask the Court to affirm the conviction.

Earl Warren:

Thank you.

Mr. Leighton.

George N. Leighton:

Mr. Chief Justice, and may it please the Court.

I would like first to answer Justice Stewart’s question about the fate of Hamer.

When we appeared before the Supreme Court of Illinois, one of the arguments made by the State was that Hamer was still in prison under his 199 years sentence.

I didn’t want to sound facetious but I thought it’s proper to observe that all that proved was they were unfair both to Hamer and to Napue that Hamer, they told me, he’s still in the penitentiary.

Now, Mr. Wines make some point about the concessions and admissions by Napue in this case.

I don’t sole read the record.

Hamer pled guilty to the crime in which he was charged.

This petitioner pled not guilty, submitted his case to a jury and the record here shows through the testimony of one of the police officers who testified in the post-conviction proceeding (Inaudible) that when he was present in court, Napue took the stand and testified and he heard Napue, the petitioner here, testifying in his own defense.

In the post-conviction proceeding here, Napue gave detailed testimony explaining how he happened to know Hamer and explained it quite diametrically opposed to the version which Hamer gave in his prosecution.

He explained that he was at home with his wife when Hamer came there in an automobile and someone told him that is rumor, Hamer had been wounded and he assisted this other person in helping Hamer because Hamer was sent to him to have been wounded.

And that’s how he happened to know of the incident of Hamer being wounded.

So that his testimony, we must presume that his testimony in the post-conviction was the same testimony gave in his own defense at his trial.

He — he denied that he was a participant in this crime.

He pled not guilty.

He submitted his case to the jury.

And in his post-conviction case, he gave detailed denials of his participation in this crime.

And he claims in his testimony and in his affidavit that not only was Hamer aligned with regard to this promise, and his point is this.

George N. Leighton:

That had Hamer testified truthfully, then his lawyer would have had the opportunity to have revealed to the jury that this man is giving this testimony not because he’s telling the truth but because he’s hoping that his 199 years would be reduced, and it’s a very important principle of law.

In People versus Savvides, I think the best proof that I have or the best case that we can find in this country, and I concede that it was not a case construing the Fourteenth Amendment, it was the case in which the Court of Appeals of New York ruled that the duty of the prosecutor whose witnesses lie in the presence of the jury is to speak up immediately and tell the Court and jury, “My witness is lying.”

That’s the duty of the prosecutor.

That’s the tenor of a fair trial before one of our state courts or jury.

Otherwise, due process doesn’t mean what we think it means.

And this petitioner said that when Hamer lied about a public defender and he knew Maury Myer from a public defender.

Why?

Because he had seen Maury Myer in the penitentiary.

He knew that Maury Myer was not a public defendant.

And Hamer was trued enough to know that by same public defendant, he was creating an impression, which was not only misleading but basically untrue.

He gave the impression to that jury that a public defender who couldn’t help him was — made a promise of recommending leniency which he couldn’t make.

And the man who recommended — who — who told him that was the man who was standing before the jury, eliciting from him a false bit of testimony which, if revealed, would have lead the — the way to the truth to being shown to that jury.

And inherent in this due process question is the duty of the prosecutor, an indispensable part of a trial and living up to the finest tradition of the bar when a witness of his tells a lie, to speak up promptly and reveal that fact to court and jury and accord to the man before the bench and bar a fair trial.

Thank you.

Earl Warren:

Mr. Leighton, before you sit down, on behalf of the Court, I — I would like to thank you for your representation of this defendant.

We understand that you are not here as a paid advocate but — but you are here by assignment of the Supreme Court of — of Illinois.

And that is a great public service for lawyers to perform and we always feel comforted when lawyers do act in that manner.

We thank you, sir.

George N. Leighton:

Thank you.

Earl Warren:

And Mr. Wines, we — we thank you for your usual frankness with the Court, for your fairness to your opponent and for the fervency of your representation —

William C. Wines:

Thank you, Your Honor.

Earl Warren:

— to the people of Illinois.

We’re adjourned.

William C. Wines:

Thank you.