North Carolina v. Pearce

PETITIONER:North Carolina
RESPONDENT:Pearce
LOCATION:United States District Court for the Northern District of Illinois, Eastern Division

DOCKET NO.: 413
DECIDED BY: Burger Court (1969-1970)
LOWER COURT:

CITATION: 395 US 711 (1969)
ARGUED: Feb 24, 1969
DECIDED: Jun 23, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – February 24, 1969 in North Carolina v. Pearce

Earl Warren:

Number 418, Curtis M. Simpson, warden, versus William S. Rice.

Mr. Gish.

Paul T. Gish, Jr.:

If the Court please, Mr. Chief Justice.

I’m Paul Gish, Assistant Attorney General of Alabama representing Warden Simpson as the petitioner in the case of Simpson against Rice.

In this case, Mr. Rice was convicted in 1960 of four separate cases of second-degree burglary.

It was seen on a plea of guilty in each case four years in one case and two years in each of the other three cases, making a total of ten.

His plea of guilty was entered without aid of counsel to a post-conviction remedy.

He received a new trial some two-and-a-half years later.

Our counsel was appointed for a new trial and he was tried I believe in December 1964, I think that’s where I’m in, in two of the cases.

He was convicted by a jury, a second judge who passed an earlier sentence, gave him 10 years on each of those two convictions.

The next part in making a — took Rule 20.

The next point, he was tried on a third case, (Inaudible) case was convicted by a jury and the same judge sentenced him to five years imprisonment and this time, the time of the last trial, the state prosecuting officer with a motion to nisi prius for us before the case and that is what the trial did, fourth case was now before us.

Now, this case if the Court please is similar of course to the North Carolina v. Pearce case.

However, those who are summoned caucasians over argued by counsel that we don’t have here.

Of course, this man did receive harsher punishment.

He received much harsher punishment on the second trial than he did on the first.

He’s not only did that but Your Honor I’m searching for word technically at least he received no credit for the two-and-a-half years served between the first convictions and his post convictions remedy.

Now, our position is that the trial did as complete discretion to our sentence after a judgment of guilt having that complete discretion he uses many factors, some of which are connected with the crime itself.

Some of which may be connected with the man, some of which are — can be connected with the issue of the case itself, some of which if the Court please depends upon how much the trial judge knows about this particular case at this time.

In other words, on a plea of guilty, I have seen in the record that showed here what I’ve seen in years of good experience that all of the current cases in which the, I believe until May were doing the prosecuting officer and the accused that we will go — entertain a plea of guilty if all of those that I have ever seen (Inaudible) that would not —

Earl Warren:

Mr. Gish, would you suggest that among those things that the judge takes into consideration might puzzle the fact that a man who appeals and gets a reversal should be punished more than a man who did not take an appeal?

Paul T. Gish, Jr.:

Of course Mr. Chief Justice I must agree with — I must agree with you.

Some judges I’m sure would do that but our position is that the judge who is an elected or appointed official who in Alabama does not say and does not have any way of prescribed violation cited by the courts but why I’ve given you more —

Earl Warren:

How was the defendant ever raised a question as to whether the judge had that in his mind or not when he sentenced him?

Paul T. Gish, Jr.:

I don’t feel that he could, Your Honor.

Earl Warren:

But you don’t think that would be permissible do you to have that ordered?

Paul T. Gish, Jr.:

I don’t — Your Honor, if I disagree with you that he couldn’t I think that if there are second chances that we don’t know about.

We have vindication now.

Vindictiveness could be shown then we would have the case where a man could show that my rights are vindictive judge who did this just punish me.

But what I’m saying my position is that the mere fact that he receives — that the accused receives a harsher punishment and in this case in my judgment can be and should be contributed as much to other sentencing factors and not to give vindictiveness.

Earl Warren:

Well, here we have — here we have the same judge, the same evidence and dismissal of one of the charges for the second trial and still the judge gives him accumulated sentences of 25 years instead of the 10 years that he gave them on the first trial, what more could one has for him to determine whether it was interpreted or not?

Paul T. Gish, Jr.:

If Your Honor please, I agree with every part of your question except when Your Honor states that it’s the same evidence, now I think —

Earl Warren:

I thought that was in the — I thought that was in the record here.

And then thought it’s the same evidence.

Paul T. Gish, Jr.:

On a plea of guilty.

Earl Warren:

I beg your pardon?

Paul T. Gish, Jr.:

On a plea of guilty as this man even the first in a crime of this sort.

In many times, no evidence in our own is presented to the court.

Now, we don’t know from this record whether the judge had any evidence but we do know that the judge has the evidence on the jury trial.

Thurgood Marshall:

I was under the impression that the trial of both cases, I was wrong.

Paul T. Gish, Jr.:

That’s right.

Now, my time is over, I shall ought in this case I can’t argue all about our contentions.

Let me point to a few things that are not in the brief.

In the Goolsby cases in which I have in the appendix to my brief on the merits and which was not reported throughout our brief, they’ve sentenced appropriate in 215 Seventh Circuit 598 and 602.

Now, those cases does need subsequent to the second conviction in this case of in essence that a man in Alabama cannot receive more punishment for one crime than the maximum provided by statute.

Now, that is all that Alabama requires and frankly that is no way that I know of to give a man credit in Alabama on his prior conviction of the second case.

The legislature does not leave it to the present authorities receive a man with the judgment and sentence of the court.

The present authorities have no discretion as to what to do with this man except to receive him and let him serve his term under the roof.

Now we do have “good time” and there are two types of good time which is the same as “gain time” of North Carolina.

Those things are figured by the present authorities.

Now, if I may, let me get to the records in this case in the appendix on pages 55 and 56, we have as an exhibit to add if that’s alright with this court, a statement by the prosecutor as to how he handles the second cases on retrial.

Now, frankly I do not understand the statement of the District Court that flatly a key to the sta staf Alabama of increasing punishment, increasing sentences merely for punishment that in no evidence that I see in these records except the statement on which 55 and 56 and the statement by the petitioner below that he didn’t know why he served or why he had to serve the sentence.

Now, of course I don’t think that any convicted man could say why the judge gave him the maximum instead of the minimum is somewhat intriguing.

This Court I think can never held that this type of situation is similar-type situation involve double jeopardy.

The Court has held in Alabama from the beginning had also held that if a man is convicted of a lesser offense, he’d automatically acquitted of a higher offense.

In other words, if he were convicted of second-degree murder he cannot again be tried and convicted of first-degree murder but we should admit the difference between that situation and being convicted of first-degree murder for ten years on the one hand and on the second trial being convicted and getting a life of the same degree of crime.

There is a case that’s cited by the Circuit Court of Fifth Circuit reported on 403 F.2d 1019.

This is not cited in any of the briefs filed here before filed in this case.

Frankly, I do not — I cannot from a constitutional standpoint understand this case to Williams against State of Alabama, this case in connection with the case before this Court.

In the Williams case, there were three convictions on first trial.

Paul T. Gish, Jr.:

Each sentence was for five years.

On the second trial, Mr. Williams was convicted by the jury and given ten years in one case.

In the other two cases, he was given a year and a half which put him of course in a better position, the second time he was than in the first time.

And I can tell you that he’s in a better position.

I have constitutionally if Mr. Rice was entitled to receive only what he did the first time with credit for time served and the District Court held then constitutionally why wasn’t Mr. Williams entitled of the same treatment except that on the whole Mr. Williams got a better deal at the cases than Mr. Rice did.

To me at a constitutional point, I do not understand that as a form of morality as a point of what should be known in a particular case, I can’t understand it but in the constitutional point, if Mr. Rice has in the end of his year with no addition, then I submit that Mr. Williams is entitled of the same thing.

Thank you.

Earl Warren:

Mr. Lawson.

Thomas S. Lawson, Jr.:

Mr. Chief Justice and may it please the Court.

My name is Tom Lawson and with Mr. Oakland Melton we have represented the defendant or respondent in this cause up to this Court.

The facts can be briefly stated from our standpoint.

Mr. Rice was unfairly convicted, did not have an attorney at his first trial.

The State of Alabama granted him a new trial.

At that trial, they said Mr. Rice we are sorry that you spent two-and-a-half years in jail but we don’t recognize that that exists and in fact we are so sorry that you spent that time in jail that we’re going increase your sentence on these three cases from eight years to 25.

At the evidentiary hearing in the District Court, the State of Alabama produced no witnesses, not a single person testified for the State of Alabama.

Mr. Rice testified on his own behalf and a member of the Pardon and Parole Board of the Corrections I think testified as to certain time he spent in jail.

Hugo L. Black:

They don’t have a witness at the (Inaudible)?

Thomas S. Lawson, Jr.:

This is — Mr. Justice Black, this is at the District Court, the federal district court in the habeas corpus proceeding but at that case, Judge Johnson at the conclusion of the case and in his opinion, it’s on page 69 of the appendix found that the conclusion is inescapable that the State of Alabama is punishing petitioner Rice for having exercised his right of post-conviction review and for having had the original sentences set aside.

We submit as the Honorable Attorney General of the State of Louisiana mentioned that this is a flagrant violation of Mr. Rice’s constitutional rights.

We realized at the same time that this case is before the Court primarily because of the several splits in the jurisdictions dealing with the patent case and as to the concepts involved there, we think that beyond the finding of the District Court that Mr. Rice was being punished for having made this appeal that our case can be supported here on the same three theories as the patent case.

William J. Brennan, Jr.:

Excuse me Mr. Lawson, may I just get myself oriented?

Thomas S. Lawson, Jr.:

Yes, sir.

William J. Brennan, Jr.:

I understand that this offense, second-degree burglary carries a maximum of ten years.

Thomas S. Lawson, Jr.:

That’s right sir.

William J. Brennan, Jr.:

Suppose there have been only just one count to which had been a guilty plea and there had been a sentence of ten years, that the denial of assistance to counsel didn’t come to light until after he had served say eight years or ten years, if he could have served that long, could he — could he have served that long?

Thomas S. Lawson, Jr.:

Your Honor, it gets through all complicated in figuring out good time and I can’t say offhand, it would probably be more than they would of six years.

William J. Brennan, Jr.:

Let’s take six years.

Just before he had served these six years, then he succeeds in getting the conviction set aside for denial of assistance of counsel and he goes to trial.

Now, do I understand that on conviction, on trial, he could get another ten-year sentence that he would have serve that six years if it’s a good time produced to six years so that the aggregate would be say 12 years on what for the offenses on the maximum of ten years under the statute, is that right?

Thomas S. Lawson, Jr.:

Your Honor, I think the law in Alabama has been changed by the Goolsby case in that regard.

Thomas S. Lawson, Jr.:

It now puts a maximum sealing on what you can get up to those two trials.

It cannot be above the maximum specified.

William J. Brennan, Jr.:

Well, at the time —

Thomas S. Lawson, Jr.:

But in this case, it did occur exactly the same thing that the situation that you said Your Honor occurred.

In the first case, —

William J. Brennan, Jr.:

Well, then — then in fact then Rice has to serve an aggregate of time in jail which exceeds the maximum for the offense.

Thomas S. Lawson, Jr.:

In one of the offenses, that’s true.

Not — not on all three but because he had not entered into service of all three of these cases.

But on the first case, he had served some two years of a four-year sentence.

He was re-sentenced to 10 years in jail.

So that basically, had received two.

Hugo L. Black:

On that account?

Thomas S. Lawson, Jr.:

Sir that was on one case.

One case.

Yes, sir.

There were four cases originally.

One was nol. pros. and as Judge Johnson mentions in here, on page 71, Judge Johnson found that the case was not nol. pros. as the state contended in order to compensate the petitioner for the time that he had served in the previous case but it was done because the main witness that the state had to rely on was not present.

And of course, we do contend and quite seriously that the evidence in the record as presented to the District Court is sufficient to sustain his finding that Mr. Rice was being punished for exercising his right of appeal.

You have to put this on the context of time.

The Gideon case have been decided and later Escobedo and Alabama had been reinstated the old writ of error coram nobis as state procedure for hearing these constitutional claims.

The habeas corpus in Alabama is not broad enough to hear those.

And it was only after this had been done that Mr. Rice was able to bring these things before the state court.

He was the first one.

Hugo L. Black:

Did Mr. Simpson had a fact that this was done in order to punish the (Inaudible)?

Thomas S. Lawson, Jr.:

Yes sir.

Hugo L. Black:

What page?

Thomas S. Lawson, Jr.:

Page 69, Your Honor of the appendix, the last part of the second paragraph.

Also in connection with the punishment, it’s also important to realize that this man was the first one to his knowledge to file one of these writs after the Gideon decision in this particular county in Alabama.

I think the effect of this and the reasons for it can be illustrated by a case, United States District Court case in which the sentencing judge who was about to release someone on habeas corpus wrote in his opinion to — not just to the person but to all the other prisoners and he said let me remind you that it may not be real rainbow that you see these writs that you are filing to get a fair trial.

He said, at the end of that rainbow then there may be nothing than a pot of fool’s gold and of course that’s — sir?

Hugo L. Black:

A pot of what?

Thomas S. Lawson, Jr.:

Fool’s gold.

Hugo L. Black:

Fool’s gold, alright.

Byron R. White:

Who said this and when?

Thomas S. Lawson, Jr.:

This is on a district court case Your Honor, Schupp versus Sigler, 230 F. Supp. 601.

Potter Stewart:

That’s in your brief or not?

Thomas S. Lawson, Jr.:

Sir?

Potter Stewart:

Is that in your brief?

Thomas S. Lawson, Jr.:

No, sir.

I just ran across it.

The point of law is not important but except the way that it expresses it to show what these prisoners are confronted with who are attempting to obtain a fair trial.

Abe Fortas:

May I —

Thomas S. Lawson, Jr.:

Why did you say the —

230 F. Supp. 607.

Byron R. White:

What was your basic point to this a due process point, is it?

Thomas S. Lawson, Jr.:

Not really.

My basic point to begin with is, it goes really beyond due process to the very fundamental concepts of law.

I think —

Byron R. White:

Well, how do you — is that the most you can say forum of their fundamental concepts?

Thomas S. Lawson, Jr.:

Well, I can go back to Chambers versus Florida.

Byron R. White:

Well, how about — what constitutional ground do you rely on?

Thomas S. Lawson, Jr.:

Well, if we’re going to a specific constitutional ground, it would have to be due process.

Here you have a person being convicted of something in effect that is not a crime.

The only thing that he did was to appeal, a right which the state could give Your Honor and it was for that that the District Court found that he was punished.

Byron R. White:

Well, does he have any constitutional right to appeal?

Thomas S. Lawson, Jr.:

You have never held that he has a constitutional right to appeal but this Court has indicated that perhaps the states must provide at least one means of reviewing federal questions.

Byron R. White:

But why isn’t this so — why can’t you approach it as just a burden on the other constitutional rights that he would be urging on appeal.

Thomas S. Lawson, Jr.:

Well, sir the — the unconstitutional conditions —

Byron R. White:

That isn’t necessarily a due process approach, isn’t it?

Thomas S. Lawson, Jr.:

Well, due process only because in our view of the case, based at this point, on the district court’s findings Your Honor and we got two different views, one if the court punished him for something that was not a crime, that’s we say not due process.

Thomas S. Lawson, Jr.:

That’s not law of any kind.

But if the court was not punishing him for a crime, we think then that we can go back to Patton and to the basic concept developed in that case and support our position here.

Byron R. White:

They went on — they went on three grounds.

Thomas S. Lawson, Jr.:

Yes, sir.

Byron R. White:

We want to know which one you’re going on?

Thomas S. Lawson, Jr.:

We urge all three, Your Honor.

Earl Warren:

Do you see an equal protection?

Thomas S. Lawson, Jr.:

Yes, sir.

I see a very keen issue of equal protection.

Let’s first take it as to the denial of credit for time served and to take it one step further, and suppose that he had been on appeal, instead of in jail, exercising this writ of error coram nobis notice.

The reason for this is that in Alabama, you have to go by a writ of error coram nobis notice after your appeal time has run.

But if he had been appealing, he would be denied the equal protection that those people have — who have the money to get out on bind, they don’t spend any time in jail.

The time that they served every — the time that the other people served who do not appeal, every minute of this is credited to their sentence but it is only this class, this class that is defined one way and that is a class of people who had been denied a fair trial, a constitutionally fair trial —

William J. Brennan, Jr.:

Well, wasn’t this a —

Thomas S. Lawson, Jr.:

— in the first instance.

William J. Brennan, Jr.:

Didn’t this case ever bump federal habeas?

Thomas S. Lawson, Jr.:

Yes, sir.

William J. Brennan, Jr.:

Well, nobody has been out on here, has been out on bail while he was serving his sentence.

Thomas S. Lawson, Jr.:

No — no, I was making a statement Your Honor that the logic in this case becomes more keen when you look at it.

Byron R. White:

Well, I know but this isn’t this case.

Some other cases in this case.

We’re talking about this case.

Thomas S. Lawson, Jr.:

Yes, sir.

Well, in this case, you still have people who are in jail under sentence of law who are serving their sentences and they are receiving credit for it and only these people who have been denied of fair trial and who have to go back to the Court to obtain a fair trial and I’m speaking now in terms of due process, we’re not speaking of state error, procedural errors, errors in the admission of evidence that do not reach constitutional proportions.

Thurgood Marshall:

Did I understand here that under Alabama law; before the writ of coram nobis was reinstated there was no way of bringing this point up?

Thomas S. Lawson, Jr.:

No, sir.

Thurgood Marshall:

Well, then where do you get the equal protection argument of the wealthy man, he couldn’t bring it up either, could he?

Thomas S. Lawson, Jr.:

That’s true Your Honor.

Thurgood Marshall:

What happens to equal protection argument on this case?

Thomas S. Lawson, Jr.:

Well, if it’s a question of whether they — you have to provide a forum for these people, it may be that the state does not have to provide any method of appeal on raising these things but you do get to the — your equal protection argument on this particular thing is that the people who are sentenced and stay in jail and that includes two classes: those people who were denied of fair trial but are scared to get one and those people who had a fair trial and had been convicted and sentenced.

Thomas S. Lawson, Jr.:

They get credit for every minute they are in jail.

William J. Brennan, Jr.:

Well, I suppose you’re arguing too are you Mr. Lawson that if on the same day, two who had pleaded guilty to second-degree burglary or robbery whatever this is, each got ten years.

One did appeal, seek this collateral remedy because he didn’t have counsel.

The other did have counsel either and he didn’t appeal.

At the end of six years, he’d be out, whereas this fellow is going to have to serve 12.

Thomas S. Lawson, Jr.:

That’s right, Your Honor.

William J. Brennan, Jr.:

So that’s a denial of equal protection as between prisoners who stay in the same situation merely because he sought a relief from this unconstitutional conviction.

Thomas S. Lawson, Jr.:

Yes, Your Honor but we think that that.

Hugo L. Black:

It belonged to the same effect.

Thomas S. Lawson, Jr.:

Sir?

Hugo L. Black:

How did it belong to the same effect?

Thomas S. Lawson, Jr.:

Well, that necessarily have to be framed, it has to be tried in the same day but we’re speaking of prisoners as a class and that they — these people who obtained a sentence whatever the length of it is do not have this sentences reviewed.

It may be that that second person needed to have his sentence increased as much as the first person but if the state of Alabama believes this is a necessary end, in and of itself, it can provide another means of doing it, apart from taking only one group of people and reviewing their convictions and reviewing their background.

Byron R. White:

Convicted on this —

Hugo L. Black:

And the treatment among the class has attacked the judgment on the grounds as you call it unconstitutionally reachable those who are in that class, what is the difference with equal protection?

Thomas S. Lawson, Jr.:

Between constitutional reasons and procedural error?

Hugo L. Black:

All — between all the prisoners which were in jail doesn’t have to successfully attack their judgment on the ground that they were really (Voice Overlap)?

Thomas S. Lawson, Jr.:

Alright sir.

I think if you divide it up in your illegal convictions between those who suffered a denial of a fair trial in a constitutional sense not having a lawyer or for many of the other constitutional reasons and those people —

Hugo L. Black:

The difference in treatments?

Thomas S. Lawson, Jr.:

The difference in treatments, sir.

Hugo L. Black:

All that, within that class?

Thomas S. Lawson, Jr.:

Because if they have been denied a constitutional right to a fair trial, they go back to seek a fair trial and the state says the years that you’ve served in jail would go into —

Hugo L. Black:

If you go (Inaudible) —

Thomas S. Lawson, Jr.:

Yes, sir.

They are in the same class.

They are prisoners who have been one sentence.

Hugo L. Black:

Now, if (Inaudible) —

Thomas S. Lawson, Jr.:

Yes, sir.

Hugo L. Black:

It seems to me that —

Thomas S. Lawson, Jr.:

Well, the class that I’m intending to create are those people serving in jail under sentence of law and it’s within that class that I’m speaking.

Abe Fortas:

Have you considered what the effect of this doctrine would be in California under the Adult Authority (Inaudible)?

Thomas S. Lawson, Jr.:

No, sir, I have not.

I am familiar with the California decision of Henderson and People versus Ali which carries forward your Green case to support our contentions here in this Court.

But I’m not familiar with what you speak of.

Abe Fortas:

I suppose the state procedure, state law has provided that the court merely sentences the convicted defendant let’s say to one year to life and then there is an Adult Authority that determines how long he shall serve, makes that determination and re-determination from time to time within that very broad charter and I take some appeal conviction reversed to retry, again, sentenced one year to life and with the doctrine that you for what you contend have to be binding upon the administrative agency that has said the Adult Authority in the respect that they could not thereafter compel a man to serve more time the last time they have fixed prior his appeal.

Would you carry out that fine, in other words?

Thomas S. Lawson, Jr.:

Well sir, I might.

I’m not really familiar enough to know how that works but that is the idea that I have in mind of what the state could resort to if they felt that this constant review of sentences were necessary and if you have this constant review of sentences, that becomes very administratively perhaps.

It becomes very little reason for having it done by the Court.

In fact, if you look at the public —

Abe Fortas:

Yes, except that I’m suggesting that maybe the principle for which you contend would operate to restrict the discretionary power of the Adult Authority in the sense that after a successful appeal and reconviction I don’t know why he’s asking whether in that case after a successful appeal and conviction on the second trial you would say that this principle should apply to the administrative authority namely that they can’t keep it following custody any longer than the last ruling prior to his appeal provided.

Thomas S. Lawson, Jr.:

Well, it could have that effect but I think if the — it would not have that effect under the equal protection argument that we make Your Honor.

It might well have in effect under the due process argument or the double jeopardy argument that we make.

Abe Fortas:

I’m not suggesting that would be the result but I am suggesting that that is a problem.

Thomas S. Lawson, Jr.:

Yes.

Abe Fortas:

It might be raise — it might follow as a consequence of the doctrine for which you are here arguing.

Thomas S. Lawson, Jr.:

Well, I’ve already touched on I believe due process and the equal protection arguments, our double jeopardy argument we can attack in two concepts really.

One, you can carry forward this fictitious void doctrine that began in Stroud and some of the earlier cases as the Court did in Green.

And in that case, the Court held that that was an implied acquittal of the first-degree murder sentence when he was sentenced to second-degree murder.

We think that there’s very little reason that it should not be carried all the way forward as they’ve done in California to apply the same logic and reasoning to the degree, not to the degree of the sentence but to the time in jail.

Some states divide crimes up into many different degrees.

Others have only a very few but the end purpose of both is to fit the punishment to the crime.

Now, the only argument made by the state in this case has been that this was on a plea of guilty and because of that that the state ought to have a second chance to look at it if the man decides to appeal.

But I think we have to carry it a little further and realize that it was on a plea of guilty when he was without counsel.

At that time, the state’s attorney has a duty owing to the state to see that he does not make an agreement that will be sole — require smaller time in jail that the state would be jeopardized.

If the state’s attorney makes an agreement and it’s adopted by the Court that it may well, it should represent what the state is going to require of this crime and we see no reason that the state is going to require of this crime and we see no reason that the state should have a second chance to look at this man, only this man not the others who may need their sentences reviewed just as much.

The other viewpoint of double jeopardy is the multiple punishment angle and this began in the case of Ex parte Lange some years ago and that is to look at double jeopardy as being more than one concept but having three different parts to it: retrial after conviction, retrial after acquittal, and multiple punishment for the same offense.

It may be that when this man appeal that he waived his right against a double jeopardy not to be retried but that does not mean that he necessarily waived his right to have that particular sentence fixed against.

I think that a lot of these arguments that we have made up here in Professor Van Alstyne’s article in the Yale Law Review and I’d like to give some credit and mention to him because he probably should be the one before the Court today making the arguments in these cases —

Potter Stewart:

Mr. Lawson, excuse me.

Thomas S. Lawson, Jr.:

Yes, sir.

Potter Stewart:

I didn’t mean to interrupt.

Thomas S. Lawson, Jr.:

No, sir.

Potter Stewart:

The Court of Appeals here adopted as its own the opinion of District Judge Johnson.

Thomas S. Lawson, Jr.:

Yes, sir.

Potter Stewart:

Is it not and of course, Judge Johnson decided in your favor.

Thomas S. Lawson, Jr.:

He did sir.

Potter Stewart:

In doing so, however, he made very explicit that he did not believe that it is constitutionally impermissible to impose a harsher sentence upon retrial if there is recorded in the Court record some legal justification for it and I’m quoting from his opinion.

Thomas S. Lawson, Jr.:

Yes, sir.

Potter Stewart:

You remember that language?

Thomas S. Lawson, Jr.:

Yes, sir.

Potter Stewart:

If — first of all, I’m sure you’re not going to look a gift horse in the mouth so I won’t ask you whether or not you don’t need to say whether or not you agree or disagree with it.

But if he is correct about that, if he is correct about that then this means that he has rejected any claim that this would violate the double jeopardy guarantee, does it not?

Thomas S. Lawson, Jr.:

Yes, sir.

He did not rest his opinion on double jeopardy.

Potter Stewart:

And he could not have if he said it’s constitutionally permissible, as he did trust constitutionally permissible.

Thomas S. Lawson, Jr.:

Yes, Your Honor.

Potter Stewart:

Under certain circumstances to impose a harsher sentence.

Thomas S. Lawson, Jr.:

Yes sir, I agree.

I agree with the language of the District Court as to your interpretation of it and I don’t necessarily agree that the judge should have stopped at that point instead of going further.

Potter Stewart:

Well, but even — you —

Thomas S. Lawson, Jr.:

But we have supported on that ground too.

There is no evidence in the record at all as to reason for this.

Potter Stewart:

But if the District Judge is right in that statement then that means that your double jeopardy argument is — cannot prevail does it not?

Thomas S. Lawson, Jr.:

That’s true sir.

Potter Stewart:

Because if you’re right on the double jeopardy claim, there just simply would be an absolute prohibition of imposing a harsher sentence.

This is on the after the second trial no matter what the circumstances of the evidence showed, is that right?

Thomas S. Lawson, Jr.:

Yes, sir.

Potter Stewart:

Also your equal protection argument.

Thomas S. Lawson, Jr.:

I believe you’re right there too, sir.

Potter Stewart:

Well, except Judge Johnson relied rather strangely on equal protection.

Thomas S. Lawson, Jr.:

Yes sir, he did.

But I think there are three views that have been expounded by the district courts.

One takes the view that there can be no increase at all and that was the Patton case.

Another takes the view that there can be increase under justifiable circumstances which appear on the record.

That was the lower court case in the instant case and also the lower court in the Patton case.

The Marano case takes a position that there can be an increase for reasons appearing, I believe, for things that have occurred after the first sentence.

Another view is expressed that it can be for reasons not that have occurred since the first sentence but for reasons in connection with the crime itself, the first crime, or aggravated circumstances.

Therefore, we believe the simple solution is to —

William J. Brennan, Jr.:

Is there another possible view that if the second sentences were then statutory maximum that really all that he’s entitled to do is to be sure that credit and time already served?

Thomas S. Lawson, Jr.:

Your Honor, that view of the statutory maximum has bothered me considerably because it flies right in the face of the own doctrine that the courts rely on and that is that the case is void for all reasons.

William J. Brennan, Jr.:

Well, I know but — I wonder what we’re talking about here is what the federal constitution imposes in the way it will restrain in this circumstance on a new sentence.

Isn’t that we’re talking about.

Thomas S. Lawson, Jr.:

Yes, sir.

William J. Brennan, Jr.:

Well, focusing on that, if he — actually, he sought to have a first conviction set aside and the hope that on a new trial he’d be acquitted I take it?

Thomas S. Lawson, Jr.:

Yes.

William J. Brennan, Jr.:

That’s the reason he did it, was it.

And if that’s the chance he wants to take and the — and he fails and the sentence for whatever reason is within the statutory limit on the new sentence, does he really have any justification for asking for more than an assistance that he get credit on time already served in the first sentence?

Thomas S. Lawson, Jr.:

Yes sir, I think he does.

William J. Brennan, Jr.:

Yes, that’s —

Thomas S. Lawson, Jr.:

I believe it’s a —

William J. Brennan, Jr.:

Well, I believe my question to you was is it that another possible view of this problem?

Thomas S. Lawson, Jr.:

Yes, sir.

I have nothing further unless the Court has some more questions.

Earl Warren:

Mr. Gish.

Paul T. Gish, Jr.:

If the Court please.

Mr. Justice Brennan’s view accused in this case received on the second trial, he doesn’t (Inaudible) the ideas.

He has the maximum sentence on three indictments for burglary in second degree is 30 years.

I do not think we have any question here that this man has received what was more than the maximum allowed by the Alabama statute.

Paul T. Gish, Jr.:

When he was on his first 1960 convictions, he received 10 years out of a maximum total of 40.

On the second trial, he received 25 years out of a maximum total of 30.

So we have —

Potter Stewart:

Now, 25 plus the time he’d already served Mr. Gish.

Paul T. Gish, Jr.:

Two and a half years.

Potter Stewart:

Yes.

Paul T. Gish, Jr.:

Which was still less.

It would 27 and a half years.

Yes, sir.

Potter Stewart:

Is it true that this was the first collateral attack upon a conviction in your state under the rule of Gideon against Wainwright?

Paul T. Gish, Jr.:

No, sir not in my state.

Potter Stewart:

But in this county —

Paul T. Gish, Jr.:

It may have been in this county.

Potter Stewart:

Well, now you say it may have been the petitioner alleged that it was.

Paul T. Gish, Jr.:

The petitioner has said before at the evidentiary hearing.

I do not know if it’s correct or not that is a test before.

Potter Stewart:

And you don’t know whether it’s correct

Paul T. Gish, Jr.:

No, sir.

Potter Stewart:

But he is the — of course he wouldn’t have the records available to him I presume, only the state would or the court or the clerk courts or somebody but.

Paul T. Gish, Jr.:

No, I do not know.

I know —

Potter Stewart:

In the record, that’s uncontradicted testimony at least that this was the first attack upon a conviction based upon this Court’s decision in Gideon against Wainwright in this county in Alabama.

Is that correct?

Paul T. Gish, Jr.:

That is correct.

Potter Stewart:

And the — from that fact, as well as from the state’s failure to present any witnesses, the habeas corpus hearings and perhaps some other circumstances, Judge Frank Johnson the federal district judge in this case concluded as a matter of fact that the reason for imposing the harsher sentence was the vindictive reason of penalizing this petitioner’s attacked on a sentence under a decision of this Court, is that correct?

Is that fairly said?

Paul T. Gish, Jr.:

That may be so Mr. Justice Stewart.

Let me say this.

I do not fully understand Judge Johnson’s opinion in two or three respects.

And this isn’t forum, he says they either not know in the first place that the state cannot give a harsher sentence.

Paul T. Gish, Jr.:

Alright, then he says that where the state does not show by the record “the reason for your harsher sentence been a due process or equal protection overtly.

Then I am wondering was my hindsight has always been a lot better foresight but I guess it does, what if I had at the time of the habeas corpus hearing introduced the evidence in front of the judge and the prosecutor to let them explain why this was (Inaudible).

As I read — as I read Judge Johnson’s opinion even that were not have had my cause at that state of the game and I read the opinion and he said in the record and offered them the record on the second trial might show some reasons.

Well, I couldn’t conceive of no reason other than the fact as I said it earlier that the judge had the evidence before him the second tim and he accepted the plea of guilty on the first trial.

Now, would it be enough for the trial judge in stating the record at the end of the trial when jury convicts.

Well, this time, I read the evidence against you.

The first time, you and the prosecutor entered to an agreement and I ratified it by accepting your plea but this time, no more advantage.

So therefore, I’m going to give you a harsher sentence.

Now, would that be enough?

I don’t know what this opinion.

Byron R. White:

(Inaudible)

Paul T. Gish, Jr.:

No, I think they based that on to that note — I have —

Byron R. White:

(Inaudible)– the statute —

Paul T. Gish, Jr.:

Now, this instance confronted me sir and seriously I know that the decision of this Court in this case and in related cases, it bound to have a tremendous effect upon the sentencing policies of the trial judges all over the country.

I am sure talking with such judges in that thing of course each individual, they got to be when someone have a policy on plead of guilty or being lenient and frankly I’m not looking too closely to case other than of course the no harder than from the beginning but if the state cannot make its bargain in the one instance and repudiated at the same time, accuse to repudiate then the sentencing policies of the trial judges in the land will change many of them.

Byron R. White:

(Inaudible)

Paul T. Gish, Jr.:

Saying what?

Byron R. White:

(Inaudible)

Paul T. Gish, Jr.:

Yes, they have gotten to the bargain.

Byron R. White:

On agreement?

Paul T. Gish, Jr.:

On agreement.

Yes, sir.

I’ve seen it happen many, many times to a person to us.

What?

Byron R. White:

Judge who?

Paul T. Gish, Jr.:

Judge Harris and Powell and partly Johnny.

Now, I don’t want you to understand me sir.

I did not say, I did not mean to imply that they had any motive of a bargain and we would make it buying and selling of property.

I meant — I meant merely this that the agreement and I call it a bargain would be if you leave out the fact of no attorney the defense attorney would ask the prosecutor how much sentence can we have if we plead guilty and then maybe bargaining in this instance that there might be some little time before an agreement is reached.

Byron R. White:

(Inaudible)

Paul T. Gish, Jr.:

I’m not apologizing.

I’m just trying to be shoot with this.

Byron R. White:

(Inaudible)

Paul T. Gish, Jr.:

Right.

Thank you very much.