Oyler v. Boles

PETITIONER:Oyler
RESPONDENT:Boles
LOCATION:Place of arrest

DOCKET NO.: 56
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 368 US 448 (1962)
ARGUED: Dec 04, 1961
DECIDED: Feb 19, 1962

Facts of the case

Question

  • Oral Argument – December 04, 1961 (Part 1)
  • Audio Transcription for Oral Argument – December 04, 1961 (Part 1) in Oyler v. Boles

    Audio Transcription for Oral Argument – December 04, 1961 (Part 2) in Oyler v. Boles

    George H. Mitchell:

    Mr. Chief Justice, may it please the Court.

    First of all and I’d like to say that I don’t want to give the impression that I’m attempting to read something into the statute that does not exist.

    I agree fully with the holding in the Graham case that the proceedings under the statute are for identification only and I know of no reported cases in West Virginia where the question was raised as to whether defense, especially the one suggested by Mr. Chief Justice Warren, if interposed whether it should be considered or not at the hearing.

    I know of no reported case that says it should be considered.

    William O. Douglas:

    Suppose the — the man who’s up under the statute has been convicted, say three times, and one of those times or two of those times or three of those times, he did not have a, say lawyer, as our decision in Betts and Brady requires in certain, at least in certain types of cases, would that be triable on this — under the statute?

    George H. Mitchell:

    As I just stated, I know of — Mr. Justice Douglas, I know of no cases, reported cases in West Virginia where they have allowed a defense where the —

    William O. Douglas:

    (Voice Overlap) —

    George H. Mitchell:

    — defense was interposed —

    William O. Douglas:

    Yes.

    George H. Mitchell:

    — and it was tried —

    William O. Douglas:

    Suppose this, and suppose you were there representing the state and Mr. Ginsburg was there representing this man and Mr. Ginsburg steps forward and offers that in proof.

    Would you object or would you say this is triable?

    If those four — those prior three convictions were all voidable or unconstitutional or whatever you want to call them could be attacked say by habeas corpus because of the deprivation of a constitutional right, would you say that they nevertheless would be foreclosed that this man could go to prison for life on the basis of three judgments in which he had no lawyer, no one to defend him and constitutionally was entitled to a lawyer in those three cases or in one of those three cases or in two of those three cases.

    I realize that isn’t quite this case but I kind of get your idea of what this statute does and does not do.

    George H. Mitchell:

    Well, under the statute, I think it’s limited to a question of identification only but as I have stated before, in practice, it’s possible that the judge in order to determine whether or not the conviction was proper, it might here.

    Earl Warren:

    As I understand it, under the statute (Inaudible) controversy under the insinuation, surely he’s entitled to know the issue, who will decide it under the facts you say (Inaudible) — making sure they decide that question or (Inaudible)?

    George H. Mitchell:

    The jury would decide.

    They would decide whether — well, they’re only entitled under the statute to decide whether he is the person named in the information.

    Earl Warren:

    Yes.

    George H. Mitchell:

    That’s all.

    Earl Warren:

    I recognized and I suppose in addition to that, the range of decisions that you say can be raised according to the (Inaudible) by the highest court.

    Suppose it was an issue to identity and he raise the question of (Inaudible) in the statute to be raised only before a jury and would he (Inaudible) be limited only to the identity.

    George H. Mitchell:

    It would be a question of admissibility for the judge and I would think that under the statutory proceeding, it would not be a question for the jury if he — it could raise the question on a writ of error if he denied the right to interpose this defense but it is my firm belief that in accord with the Graham case that only those questions that go to the identification of the prisoner are the ones that make it to the jury.

    Earl Warren:

    What in fact was (Inaudible) is whether we can assume that the wrong in West Virginia is that a man in this situation, (Inaudible) is limited to the question of identity.

    George H. Mitchell:

    I think —

    Earl Warren:

    How do you want us (Inaudible)?

    How do you want us to deal with your law of West Virginia? Did he (Inaudible) to contesting identity or his (Inaudible) in some matter or form the opportunity raised in the defense?

    George H. Mitchell:

    At this particular proceeding, it is my thought and I think that the law of West Virginia is that this limits to the question of identification.

    Tom C. Clark:

    (Inaudible)

    George H. Mitchell:

    Under the statute, Mr. Justice, if he says that he is not the person, then it’s incumbent upon the state to put on evidence to the effect that he is (Inaudible).

    Tom C. Clark:

    They tried it on the merits.

    George H. Mitchell:

    Yes.

    Tom C. Clark:

    (Inaudible)

    Hugo L. Black:

    (Inaudible)

    George H. Mitchell:

    I think then we’d come on the writ of error.

    You mean here?

    George H. Mitchell:

    Yes.

    I don’t think he could raise them at this particular proceeding.

    How could he raise (Inaudible) error in the record to support it?

    It seems to be like Frank Murphy dissented.

    George H. Mitchell:

    Well —

    Earl Warren:

    I’m talking about the evidence before the Court whether (Inaudible)?

    And that man (Inaudible)?

    George H. Mitchell:

    The cases that we’ve been confronted with have come up on the writ of — applications for writ of habeas corpus whether this — where there was any question as to whether or not the conviction was one that was sustained the additional punishment under the habitual criminal act.

    (Inaudible)

    Earl Warren:

    Very well.

    George H. Mitchell:

    I see this.

    Tom C. Clark:

    (Inaudible)

    George H. Mitchell:

    That’s true.

    I stated that Your Honor and I also stated that —

    Tom C. Clark:

    (Inaudible)

    George H. Mitchell:

    According to the — our reported cases, the only question that can be raised at this proceeding is the question of identification.

    Felix Frankfurter:

    Then you agree to (Inaudible) that what he is challenging (Inaudible) I think is constitutionality of the statute namely (Inaudible)

    George H. Mitchell:

    Well, the Circuit Court sir.

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    That’s right sir.

    As it had been pointed out by counsel for the petitioners, they say first that they were deprived of due process of law because they were not given notice that an information would be presented setting forth a prior felony conviction.

    Our Supreme Court of Appeals has held in State against Blankenship, a 1952 case reported in 137 West Virginia, page 1, that in as much as a procedures set forth in the statute does not constitute a trial of prior offenses, no notice is required before presenting the bill of information to the Court.

    As I understand due process, the primary purpose of affording a defendant notice is to inform him of the charge against him, and to give him a reasonable time in which to prepare his defense.

    And it is our contention that such a reason for notice does not exist in this type of cases wherein we are concerned with the application of the habitual criminal act because this is not an information of an offense for which a trial has to be had, but is an information to ascertain the fact that is namely that the prisoner has already been previously convicted of offenses and this fact must appear either by his own confession or by a verdict of a jury before he can be sentenced to the additional punishment prescribed in the statute.

    George H. Mitchell:

    He’s not sentenced for an offense distinct from the one from which he has been tried, but the only question is whether he is such a person as ought to be sentenced to the additional punishment and in that relation, we compare with the finding in the Graham case wherein we say that the proceedings under the statutes are for identification only.

    They are clearly not for the establishment of guilt.

    The question of guilt does not reopen at all in this type of proceeding.

    Earl Warren:

    That mainly proceeds on the assumption that the — in the State of West Virginia (Inaudible)?

    George H. Mitchell:

    We would like to show that no formal notice was such is given for trial.

    Earl Warren:

    I beg your pardon?

    George H. Mitchell:

    There’s no formal notice such as a notice that is given for the trial, but we would like to show that the prisoner, the petitioners were amply notified that they were being proceeded against as habitual offenders under our statute.

    Earl Warren:

    But aren’t the facts that you rely on different to those outlined by Mr. Ginsburg?

    George H. Mitchell:

    No, the facts was — there’s no dispute as to the facts.

    Earl Warren:

    I beg your pardon?

    George H. Mitchell:

    There’s no dispute as to the facts of the case.

    Charles E. Whittaker:

    What do you mean then if I may ask by saying he would like to show that these men were given notice that they were to be informed on under this (Inaudible)

    George H. Mitchell:

    What I think I said Mr. Justice Whittaker is that they were amply notified that they were being proceeded against as habitual offenders.

    Charles E. Whittaker:

    By the information?

    George H. Mitchell:

    Yes.

    Charles E. Whittaker:

    What do you say for Mr. Ginsburg (Inaudible) notice in the facts of their plea in the principle of a criminal case?

    George H. Mitchell:

    It is not so absurd that in this type of proceeding, due process does not require that notice be given in the same form as in a trial of a case.

    In relation to Mr. Ginsburg’s position there that notice should perhaps be given prior to the trial of the case, I don’t see how it would be feasible.

    Under our statute, it says after conviction, immediately after conviction, and before sentencing, the prosecuting attorney must file an information setting forth the previous convictions.

    To give him notice that he would be almost assumed that he would be found guilty, he’d be convicted, but the statute anticipates a proceeding after conviction and before sentence.

    Felix Frankfurter:

    But you wouldn’t (Inaudible) even into these case (Inaudible) —

    George H. Mitchell:

    Their procedure sir?

    Felix Frankfurter:

    Let me think about it, (Inaudible), I can assume here (Inaudible) what happens in this case, the district attorney having seen the information, soon after the conviction (Inaudible) —

    George H. Mitchell:

    No sir, no Your Honor.

    Felix Frankfurter:

    That would’ve been this case.

    George H. Mitchell:

    No, Your Honor.

    Felix Frankfurter:

    (Inaudible) the case here, (Inaudible) rather what was done, it was made (Inaudible) but there they are, the accused and his lawyer and the judge (Inaudible).

    The judge asks him, do you understand it?

    He says he does (Inaudible), that’s all I ever asked.

    (Inaudible) anything after the act you need to say (Inaudible) — whether that court decision tends to be (Inaudible) —

    George H. Mitchell:

    It is our position that it does not.

    That — this was —

    Felix Frankfurter:

    And from your (Inaudible) that issue was not all over you, you must have had known, this is on the (Inaudible) a question of fact whether he was (Inaudible), that’s all in the trial, and not to assume what (Inaudible) on the basis of (Inaudible).

    George H. Mitchell:

    That’s true sir.

    Felix Frankfurter:

    (Inaudible)

    John M. Harlan II:

    Could the judge have granted an application?

    Did he have power to grant an application had it been made for an adjournment, the defendant having permitted his identity?

    George H. Mitchell:

    A contingence could be had if it did not extend beyond the term.

    The statute says that this information must be filed after verdict, before sentence and within term, within the same term of court.

    That’s perhaps one of the reasons why they have a statute that gives the same authority to the warden.

    If a prisoner comes there and has not been sentenced under the habitual criminal act in the trial court, he may file an information setting forth his previous convictions.

    Charles E. Whittaker:

    But that statute would be void, would it not if Mr. Ginsburg is right in his contention that there must be notice given to this man of the intention to proceed against him under this habitual offender statute before the information or indictment is returned?

    George H. Mitchell:

    Yes it would be void too.

    It will be also if this particular statute as we are discussing now would be considered that would be determined to be unconstitutional as like in a notice.

    Earl Warren:

    What could — would the — what could (Inaudible) if a man said yes, I am the person but those convictions have been wiped out (Inaudible).

    What could you say (Inaudible) a continuance as long this wasn’t beyond the term.

    What would you then — what could be the continuance assuming the — if he finds the man but he had other defenses to the charge.

    George H. Mitchell:

    Well it wouldn’t do him any good if the question was any other than — any other than the question of whether or not he’s the same person.

    Earl Warren:

    But could I also get back to the (Inaudible)?

    George H. Mitchell:

    In both of these cases as the records reveal that prisoners upon being informed of their prior convictions were given the opportunity to say whether they were the same person named in the information and they were duly cautioned as to the effect of admitting their identity, nevertheless, both readily admitted that they were the same persons and were consequently sentenced to life imprisonment under the statute.

    In discussing this matter of notice the petitioners in their brief and in the argument have relied heavily on decisions from Tennessee and from the Third Circuit, in the court — in the case Rhea against Edwards, a Tennessee case, which mention was made in our brief on page 6, the Court there held that since the Tennessee Habitual Criminal Act as interpreted by the Tennessee Supreme Court did not require that notice before trial be given a defendant who is to be sentenced under the act has violated the due process.

    Now those cases can be readily distinguished from the cases now before this Court.

    As pointed out in our brief and under the Tennessee statute that was in effect at that time it states that when a habitual criminal as defined in Section 1 of this Act, as charged by presentment on indictment by the commission of several enumerated felonies, he may also be charged in this same indictment with being a habitual criminal as defined in Section 1 or he may be charged only with the commission of such felony but in either case shall upon conviction be sentenced and punished as a habitual criminal.

    Under Tennessee statute, it was possible as it happened in the McCummings cited in our brief, it is possible for a prisoner to go to trial and then the district attorney announced at the trial that he was going — he is — in addition to being tried for a specified felony, that he would also be tried as a habitual criminal.

    Now under the West Virginia statute that’s not possible.

    Our proceeding is a separate proceeding and there’s no question, once the information is filed as to what the proceeding is about that the offender is to be punished if he is found to be the same person named in the information as a habitual offender.

    In the Pennsylvania case cited by the petitioner, Collins against Claudy, a situation existed there that could not exist in our statute.

    In that particular case, Collins had been indicted for breaking and entering a store and stealing certain sum of money.

    He pleaded guilty and was sentenced to a term from five to 20 years.

    His sentenced reheard.

    George H. Mitchell:

    The court sentenced a rehearing that it was pursuant to the act of assembly approved April 29th, 1929.

    This was a reference to the Pennsylvania habitual criminal act.

    At no point — no stage during the proceeding that Collins knew that he was being dealt with as an habitual offender.

    That cannot happen once again as I pointed out because on our statute, the ascertainment whether or not the prisoner here is a habitual offender.

    It is done in a separate proceeding and is not done along with the trial shall we say.

    Under the Tennessee statute that was in effect then, he was tried at the same time for being a habitual criminal and for the felony that he had committed and the jury, the same jury that tried him for the offense determined whether or not he was a habitual criminal.

    That cannot happen under the West Virginia statute.

    We say that those holdings are distinguishable from the cases now before this Court for that reason because I thought that the West Virginia procedure provides to a defendant ample notice that he is being dealt with as a second or third offender as the case may be and he has opportunity, sufficient opportunity to contest his identity as to whether or not he is that person.

    John M. Harlan II:

    What do you — what do you think, assuming you are right for the moment that notice is not required beyond what was given here in both of these cases, what do you say as to the effect of that procedure on the question of inducing pleas of guilty by people who have before them the prospect of the recidivist charge which they know about but which the state did does not notify them about therefore they plea in order to hopefully presumably avoid the possibility of a recidivist charge and they turn out to be wrong?

    George H. Mitchell:

    Mr. Justice Harlan that has been referred to by Mr. Ginsburg in connection with Mr. Brown’s article, they call it, bargain justice.

    John M. Harlan II:

    Well, it’s just a question of bargain and maybe no negotiations at all.

    The man knows he’s possibly faced with such a charge.

    He hopes that the state doesn’t know about it.

    He therefore pleads guilty.

    He had the notice and he knew that he’s going to be charged anyway he might not be in trial.

    George H. Mitchell:

    Well, I really think that the — is the question that the prisoners make and his attorney must make.

    I don’t think that that should enter too much into whether or not this procedure here is proper or can be sustained.

    Maybe I don’t have your question correctly.

    John M. Harlan II:

    I see you might have some bearing as to whether due process does or does not requiring of it.

    If the absence of the kind of notice that Mr. Ginsburg is arguing for might produce the kind of result I’ve indicated.

    I don’t know whether it’s true or not.

    George H. Mitchell:

    Well if he entered a plea of not guilty and the jury still found him guilty, he would be subjected to — to the same type of punishment the additional penalty.

    Charles E. Whittaker:

    Well could this scheme — could this scheme was that he did have in mind what Mr. Justice Harlan has just averted to?

    If this Section 4 of Article VIII Section — Chapter 62 is a valid statute as set — one set forth in petitioner’s brief at page 38 that gives the warden a right to (Inaudible) to advise the Court to — that the government prosecutor could leave — file information to proceed against him?

    Do I make it clear?

    Do you understand me?

    George H. Mitchell:

    Are you asking that should he not be sentenced as a habitual criminal in the lower court, in the trial court, could he not when he enters the penitentiary still be proceeded against?

    Charles E. Whittaker:

    (Inaudible) Mr. Justice Harlan presupposes that one charge with the principal offense in your courts knowing of his own background but that the prosecutor thought that doesn’t know of it, will plead guilty in the hope that he will just be given a single sentence not taking into account his past act — sentences.

    Well could that scheme ever work fine if the statute I’m referring to that sets forth on page 38 at Mr. Ginsburg’s brief is a valid statute?

    George H. Mitchell:

    It would not necessarily work because he could be proceeded against after entering the penitentiary.

    George H. Mitchell:

    It’s discretionary with the warden under the statute as to whether or not he wishes to file this information.

    Earl Warren:

    Mr. Mitchell, if they sentence this man for (Inaudible) and file this information, (Inaudible) and if he does not do so in 90% of the cases that is (Inaudible), but if the 10% of the cases in which the information is violative after the (Inaudible) cases where the man said he was not guilty and in fact the (Inaudible) guilty were so charged with that information.

    Would you not (Inaudible)?

    George H. Mitchell:

    If those were the facts, it’s possible that you would have —

    Earl Warren:

    What are the facts?

    George H. Mitchell:

    The — in these two cases now before us, the petitioners had not been able to show that intentional and purposeful discrimination.

    They cannot get — they cannot get themselves into the class that you are describing or the class that Yick Wo was in because that was based on race.

    Chinese, Yick Wo is Chinese and you have a — in your example all the people who were sentenced were those who pleaded not guilty and were tried under but our petitioners here cannot get themselves into that class.

    They cannot show the intention or — and purpose for discrimination necessary to show an evasion of the equal protection.

    Earl Warren:

    (Inaudible) Yick Wo is not also those who claimed he’s not guilty and put the stake the (Inaudible), isn’t that an arbitrary classification?

    George H. Mitchell:

    That could be that — if they could show that but then the two —

    Earl Warren:

    (Inaudible)

    George H. Mitchell:

    Yes, yes.

    Earl Warren:

    (Inaudible) — assume that is the finding and (Inaudible) —

    George H. Mitchell:

    I don’t think Mr. Ginsburg — I don’t know, maybe he can guess.

    Earl Warren:

    (Inaudible) — if it did — if the record did show, there were a mass of cases where —

    George H. Mitchell:

    You would have a — that type of case that — but then these — in these two particular cases, one had a trial and one pleaded guilty —

    Earl Warren:

    (Inaudible)

    George H. Mitchell:

    Both — yes.

    But if you could find that basis for a class, you would have that again —

    Earl Warren:

    (Inaudible) — I probably have in mind some other cases we have in West Virginia where that (Inaudible) plead not guilty but the fact that we — all and the others are permitted to serve their clients (Inaudible) charge filed against them.

    George H. Mitchell:

    I don’t think they’d be able to substantiate that but were it true, I think you could find that basis for classification.

    Earl Warren:

    (Inaudible)

    George H. Mitchell:

    No, it did not sir.

    Along with the question raised by Mr. Chief Justice, the petitioners contend in their brief and in their petition that they were denied equal protection of the laws and equal justice by the state of West Virginia because the state’s habitual criminal law was being administered by an unequal hand and has been stated here this morning, in support of this allegation, the petitioner’s quote extensively from several studies made of the West Virginia habitual law — habitual criminal law with special emphasis being placed on those facts that tend to indicate that it’s somewhat being applied in a discriminatory manner.

    Now, we are not certain how accurate the surveys are but we are — and we do say that the allegations contained in the two petitions then before this Court insufficient in showing the purposeful and intentional discrimination necessary and essential to show an invasion of the constitutional right to the equal protection of the law.

    They do not — they cannot put themselves in a class as the certain group of people being discriminated against.

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    To my knowledge there has been — a bill was introduced in the legislature following them instead but not by the committee, it was not a committee-drawn bill.

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    No, they did not sir.

    A bill was introduced but it was not by — they’re committed by one of the delegates and did not pass.

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    That’s right.

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    Not to my knowledge.

    There have been no published reports following that study, commenting on one way or the other officially.

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    I’m not able to say exactly but it’s my understanding that it resulted from — for someone risks to being shown among the prisoners as to the manner in which the law was being applied.

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    Someone risks or —

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    But it —

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    But that’s as far as it’s got.

    It was then before (Inaudible).

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    It was to make it discretionary as I recall it.

    See, it’s now mandatory with the prosecuting attorney.

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    No, they cannot, sir.

    Earl Warren:

    (Inaudible) require the district attorney to file the information (Inaudible) after a hearing whether the man is to be treated as a habitual criminal or not.

    George H. Mitchell:

    I think that would help considerably.

    As I state it’s nothing been officially — no official view has been taken since this study.

    No one has shown any real interest in amending the act or changing it.

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    22.

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    They all have criminal jurisdiction but in several —

    Felix Frankfurter:

    You mean, all of the —

    George H. Mitchell:

    — several of larger counties there in jury courts who handle only, statutory courts — of courts who only — who handle only criminal cases.

    That’s in some —

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    He’s on appeal that — there’s a (Inaudible) in the larger — in the larger counties, they may have separate courts who have inferior courts, who handle only the criminal cases.

    Felix Frankfurter:

    How many judges in West Virginia in number, how many judges exactly (Inaudible)?

    George H. Mitchell:

    Well all the judges who preside over these courts.

    Felix Frankfurter:

    20?

    George H. Mitchell:

    Yes, 20 or 30.

    Felix Frankfurter:

    20 or 30.

    George H. Mitchell:

    And then there are inferior courts who — they have the power to decide.–

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    Yes, they did.

    Felix Frankfurter:

    (Inaudible) have the same view regarding (Inaudible) whether its is long distance or short distance (Inaudible) —

    George H. Mitchell:

    No, I don’t think they all have the same views.

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    That’s right.

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    That’s possible.

    Earl Warren:

    (Inaudible)

    George H. Mitchell:

    That’s true.

    Earl Warren:

    Usually decided by judge and not by a district attorney who filed one information out of 11 which were the facts (Inaudible).

    George H. Mitchell:

    You would also run into this problem which exists now as far as the prosecuting attorneys are concerned, the statute says that if he has information, if he has knowledge —

    (Inaudible)

    George H. Mitchell:

    — you might run into this problem which we all — which we have now.

    The statute says if he has knowledge of these previous convictions, he is, he shall file the information.

    Whether he has knowledge or not is often — is often hard to determine.

    Sometimes he does not have it and most of the prosecuting attorneys cooperate with the Criminal Identification Bureau of the state police and they provide, they can provide them, if they have the information in this — in previous offenses.

    Then too the requirement in the statute is that it must be done within term.

    If it so happens that you get some case near the end of the term, you may not have time to file the information, get the necessary information to file it.

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    In the smaller counties, you will find that your prosecuting attorneys are may be very much part time and the police force — well they have a very small space.

    As a matter of fact if one has to write us about getting enough money to have a station there or anything in his office.

    It depends on the size of the counties.

    More or less, in smaller counties, they do have a difficulty of making proper investigations and actually of devoting their time to the office.

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    Whether he broke them, I don’t recall exactly as to whether or not he broke them down to filing the information during in a year but he did break down the sentencing under our habitual criminal act.

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    That may have been in the — not in his article.

    It’s probably in his research but it was not in his article.

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    It was probably on file with the permission in this committee.

    Felix Frankfurter:

    (Inaudible)

    Earl Warren:

    (Inaudible)

    George H. Mitchell:

    I will sir.

    That’s — whatever information is available to the — that’s filed with the committee, that’s a —

    Charles E. Whittaker:

    Mr. Mitchell, I would like to know how if an accused was brought before this Court and the prosecutor presented several certified copies of past convictions and sentences, but one or more of them appear obviously to be subject to collateral attack for one reason or another, how is this man ever to have a hearing on that aspect of the case under your law?

    George H. Mitchell:

    Well, it’s practically impossible under our interpretation of this particular proceeding.

    Charles E. Whittaker:

    Would that mean he’s got to go to prison for life just because you haven’t got a procedure whereby you can show one or more judgments were void?

    George H. Mitchell:

    Well habeas corpus that’s the way it’s been attacked now in the state by writ of habeas corpus.

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    Both of them are.

    Felix Frankfurter:

    Both?

    George H. Mitchell:

    Yes.

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    As to whether or not the judgment was void that’s —

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    That the judgment is void?

    Felix Frankfurter:

    Any of the argument — any of the judgments (Inaudible) —

    George H. Mitchell:

    No, they are not raised in there.

    Felix Frankfurter:

    (Inaudible)

    Charles E. Whittaker:

    Well is it quite fair to say that not (Inaudible) — doesn’t Oyler say under his interpretation of the statute he wants to show that these sentences in Bedford County, Pennsylvania one being to prohibition and the other to small (Inaudible), were it not such as brings them within your recidivist statute.

    Doesn’t he claim that?

    George H. Mitchell:

    He claims as I guess that he was denied due process because he was not allowed to show that —

    Charles E. Whittaker:

    Well —

    George H. Mitchell:

    — in the lower courts.

    Charles E. Whittaker:

    — this is habeas corpus case, nothing can be showed here, then where can he show?

    George H. Mitchell:

    It is here in habeas corpus and he made his application in the Supreme —

    Charles E. Whittaker:

    That (Inaudible) — suppose it is (Inaudible) off the record for that purpose we have to assume, our present purposes it seems to me and we have to assume that is (Inaudible), do we not?

    George H. Mitchell:

    Yes.

    Charles E. Whittaker:

    (Inaudible) is he entitled to relief in a habeas corpus hearing?

    George H. Mitchell:

    If the judgment is — if the finding would render the judgment yes, or partially void.

    Charles E. Whittaker:

    Well, if what he says is true, is there room to say that the judgment (Inaudible) judgments in Pennsylvania were void?

    George H. Mitchell:

    Well, we will show that then, they were not, that they were in compliance with our statute.

    That the three felonies set forth in the indictment were of such a nature as were punishable as were crimes punishable by a confinement in the penitentiary and our court has interpreted the statute to mean regardless of where you serve the time if it was a crime punishable by confinement in the penitentiary was one, it was an offense sufficient to support and to sustain the application of the habitual criminal statute.

    Charles E. Whittaker:

    One more question and I’m through. Now supposing he wants to put the matter before your highest court to reexamine that case, then doesn’t he have to show us the facts which would bring him relief if the rule be changed now then he is entitled, wouldn’t he?

    George H. Mitchell:

    Yes, he would.

    Charles E. Whittaker:

    Now that — is he entitled under his averments here to that right, attempt to threaten to change that rule?

    George H. Mitchell:

    I think he is Your Honor.

    Charles E. Whittaker:

    Well, is he cut off from that if he is denied the right to put that (Inaudible)?

    George H. Mitchell:

    You mean at the trial court?

    Charles E. Whittaker:

    Yes.

    George H. Mitchell:

    At the trial court level, as I stated before the question has never been decided if whether defenses as one as you are speaking of is interposed whether or not it would be error for the trial judge not to admit.

    Now it’s being reached on habeas corpus with all the cases at which I have knowledge of.

    If there’s any question as to validity of the previous convictions is now being reached by proceedings in habeas corpus.

    Earl Warren:

    One question Mr. Mitchell, both of the petitioners did file a petition for writ of habeas corpus, did they not?

    George H. Mitchell:

    That’s right, sir.

    Earl Warren:

    And they both had claimed (Inaudible), did they not?

    George H. Mitchell:

    They did.

    They said that —

    Earl Warren:

    They both — and they both claim (Inaudible) deprived them of the opportunity to raise the defenses (Inaudible), did they not?

    George H. Mitchell:

    That’s what they said in the petition.

    Earl Warren:

    That they would (Inaudible) denied the right of error, did they not?

    George H. Mitchell:

    That’s right sir.

    Earl Warren:

    (Inaudible)

    George H. Mitchell:

    Yes.

    They filed — both filed petitions in the Supreme Court of Appeals, petitions for writs of habeas corpus in the Supreme Court of Appeals of West Virginia.

    The court reviewed the petitions and denied their applications without hearing and without an opinion.

    Felix Frankfurter:

    What is your answer to (Inaudible) convicted of a crime (Inaudible)?

    George H. Mitchell:

    I think our Supreme Court in reviewing these petitions examined the Pennsylvania statutes and they found that the offenses, the crimes therein described were crimes punishable by a confinement in the penitentiary hence Pennsylvania so selected to punish the petitioner in their manner.

    Larceny, according to the statute is a felony in Pennsylvania, that was a larceny of a $1250 car.

    Burglary was made a felony by the statute in Pennsylvania and he was convicted of both of those crimes and they are punishable under Pennsylvania statute by a confinement in the penitentiary.

    However, Pennsylvania has this other statute that allows certain youthful offenders to present to Camp Hill or whatever it is, an industrial school in Pennsylvania and they elected to send him there rather than to send him to the penitentiary.

    Our Supreme Court in the case already referred to him, State ex rel Johnson against Skeen, the warden has interpreted that to mean that the convictions are convictions for crimes punishable by sentence to the penitentiary and it doesn’t —

    Felix Frankfurter:

    Now suppose Pennsylvania and the statutory law passed an exclusive provision (Inaudible) —

    George H. Mitchell:

    If it was a juvenile proceeding, that was a yes, they could’ve Your Honor.

    Felix Frankfurter:

    (Inaudible)

    George H. Mitchell:

    Juvenile proceeding —

    Felix Frankfurter:

    This is not a (Inaudible) Superior Court, maybe one or the other (Inaudible) —

    George H. Mitchell:

    That’s right sir.

    Felix Frankfurter:

    (Inaudible)

    Earl Warren:

    (Inaudible) you say that your Supreme Court will look at the Pennsylvania statute and determine whether the crime (Inaudible) it was one punishable by (Inaudible) — it was considered a recidivist in your city (Inaudible) as I understood.

    Is that what —

    George H. Mitchell:

    This —

    Earl Warren:

    — your Supreme Court (Inaudible) –

    George H. Mitchell:

    Well, this is what I meant Mr. Chief Justice.

    When these petitions were filed in the Supreme Court of Appeals for — they were application for writs of habeas corpus in reviewing the petitions, the Court would — to see whether they had probable cause to grant a hearing on them and I think from the review of them, they ascertained that these crimes of which — that are set forth in his petition were crimes punishable by confinement in the penitentiary.

    Therefore, the writ will be denied because he had no grounds for it.

    Earl Warren:

    How would that handle a case like this?

    (Inaudible) would your Supreme Court without any (Inaudible) refuse the answers on (Inaudible) —

    George H. Mitchell:

    I think if — in his petition, he set forth by affidavit the other evidence from the cause to believe that he was proceeded against or was being proceeded against unjustly that the court would grant him a hearing.

    Earl Warren:

    Mr. Ginsburg.

    David Ginsburg:

    I’d be very brief.

    Mr. Chief Justice, may it please the Court.

    Certain questions were asked which I may be able to answer, one having to do with the Brown study.

    The question was asked whether he had dealt with this problem of bargain justice and the two paragraphs which I regarded as relevant in this connection are quoted on page 21 of the petitioner’s brief.

    Brown says that in view of these figures, the statistical data which contained in these records, the records before this Court, on these cases, it is to see why the few prisoners who have been sentenced for life imprisonment under our habitual criminal law feel that they have been discriminated against.

    This is one of the chief complaints against West Virginia’s habitual criminal law.

    Of course, the reason the law was imposed in many cases was due to the fact that the person plead guilty to the present charge in consideration of the law not being imposed.

    Bargain justice enters the picture and the record doesn’t show the whole picture insofar as the part played by the habitual criminal law in our system of criminal justice concerned.

    Question was asked regarding the nature of the statistical data whether it is broken down by county and so on.

    Those data are contained in the record in this case.

    In the Oyler case in pages 37, about 20 pages going on, they identify the prisoner, they identify the county, the number of prior convictions and the sentences which were imposed.

    There’s a recapitulation by county on page 59 of the Oyler record. Question was further asked whether what action was taken by the state legislature.

    In the Oyler record on page 36, there is the statement, this document was offered to the state legislature in 1957 and one house voted 98 to 2 in favor of abolishing, amending or correcting the habitual criminal statute that the issue was not pursuant to a crime (Inaudible).

    I think —

    Earl Warren:

    Mr. Ginsburg (Inaudible) indicate what was the (Inaudible) —

    David Ginsburg:

    Not to my knowledge sir but perhaps in the data which the Attorney General’s office will supply, we’ll find the answer but in the published material there is no answer to that question as I’ve seen it.

    Reference was made to the case of Collins and Claudy, this was Judge Hastie’s opinion of the Third Circuit and it was that opinion which led to the State of Pennsylvania to reverse itself on this issue of notice.

    It is quite true as the — my Brother Mitchell indicates in Collins and Claudy, there was no notice of any kind to the prisoner that he was being dealt with as a habitual offender.

    Judge Hastie’s reply there was as follows, “We cannot see how any subsequent showing that the accused did not have a good defense can excuse the failure to found one part of the sentence, it’s more than the other from the normally prerequisite procedure of notice and hearing.

    We are satisfied,” he says, “that fundamental fairness and judicial procedure required the court impose an enhanced penalty only upon the basis of a supporting judicial determination of the essential facts made after the defendant has been informed of and heard upon the issue of recidivism.

    That decision led to the State of Pennsylvania to reverse itself.

    The state had had decision in effect similar to the one in the Blankenship case here in West Virginia which says that no notice is required, so also Pennsylvania had concluded that no notice was required.

    Following Collins and Claudy, however, Benzing and Myers that’s referred to in the brief, there was a petition for habeas corpus seeking release from the Pennsylvania state penitentiary.

    Benzing had been convicted of voluntary manslaughter and there had been an enhanced punishment.

    He was told at the time of sentence just as ordering peremptory were told here that the habitual criminal act was being invoked but he was not told that he had a right to a hearing and time to prepare.

    It was held by the Supreme Court of Pennsylvania that although the act doesn’t in terms provide for notice or hearing to avoid constitutional problems, the act would be reinterpreted.

    And it’s shown there as here that neither the petitioner nor the counsel objected when sentence in that case was doubled and the judge did not inform Benzing that he had a right to hearings.

    It was held by the Supreme Court of Pennsylvania that there was no waiver when the petitioner did not know that he had any right.

    He was not released at courts, it was sent back for re-sentencing and so also I think it would be appropriate in the cases here.

    John M. Harlan II:

    Could I ask you one question?

    Assuming that the statute is not to be construed as limiting the power of the judge on a request for adjournment that had been made, what is your answer to the question of waiver, a suggestion of waiver in the Oyler case, the counsel’s failure, waiver arising from the counsel’s failure to ask for any further notice or adjournment.

    David Ginsburg:

    I’m afraid I don’t follow your question Mr. Justice Harlan.

    John M. Harlan II:

    My question is that assuming that if a request by counsel had been made for additional time when he was — when his client was brought into court in Oyler, that the Court would have had power to grant an adjournment, grant more time.

    David Ginsburg:

    You were making that assumption —

    John M. Harlan II:

    I’m making that assumption, what answer — assuming that the statute cannot be construed, should not be construed as you suggested earlier as you thought it might be, what answer have you’ve got on that set of assumptions to the waiver point in the Oyler case?

    David Ginsburg:

    Yes.

    In the Oyler case where he had a trial?

    John M. Harlan II:

    Yes.

    David Ginsburg:

    I would say — I recognize the possibility that counsel may waive rights.

    I don’t believe that this is anywhere close to the fact of what actually took place in Oyler but I do believe on these assumptions that I believe counsel could waive his rights.

    John M. Harlan II:

    Well, enlighten me as to why you don’t think it’s any way near what happened in Oyler, that’s all I’d like to know.

    David Ginsburg:

    What actually happened in Oyler was that after the trial and after the motion for a new trial was denied, this information was brought before the Court.

    I agree with my Brother Mitchell that the law has understood, the law as written provides that you may contest the issue of identification but that’s all you can do.

    I don’t believe that he waived any rights which he didn’t have.

    He didn’t have a right to raise this in Oyler and he didn’t.

    I don’t believe either counsel or that counsel was culpable in that case.

    John M. Harlan II:

    In other words, you stand on the statute, don’t you?

    David Ginsburg:

    We stand on the statute and the record in this case.

    John M. Harlan II:

    But if you’re mistaken on the statute or one doesn’t agree with you on the statute, is there any other answer?

    David Ginsburg:

    No sir.

    Earl Warren:

    Mr. Ginsburg, I understood (Inaudible) —

    David Ginsburg:

    Yes, I don’t understand that to be an issue in this case, exactly.

    Earl Warren:

    (Inaudible)

    David Ginsburg:

    No and I believe the court will find that there are numerous decisions cited in both briefs which we are in agreement as to the meaning of the law in the State of West Virginia.

    John M. Harlan II:

    Well, perhaps — excuse me, perhaps I misunderstood Mr. Mitchell and to my point of view, this is important, I had understood him to say that notwithstanding the admission of identification and notwithstanding that the statute permits only the issue of identification, notwithstanding both those considerations that if a request for an adjournment had been made, it would’ve been honored and the court had power to honor it.

    Now maybe I’m wrong about that.

    If I am wrong I’d like to be corrected.

    David Ginsburg:

    I cannot speak of course for Mr. Mitchell.

    Within my limited knowledge of what the law is —

    John M. Harlan II:

    Perhaps the Chief Justice would allow Mr. Mitchell to answer that because I think it’s important.

    Do you understand my question?

    David Ginsburg:

    I think I do, Mr. Justice Harlan.

    My answer I think was then that he would have the power to grant it but the question that was asked, what good would it do (Inaudible) —

    John M. Harlan II:

    Well, that’s a different question.

    My question was (Voice Overlap) —

    David Ginsburg:

    Yes, and he would have the power to grant a continuance.

    Earl Warren:

    But at the time to which the case was continued, the judge then have no power to hear those contentions if he admitted his identity.

    David Ginsburg:

    That’s right sir.

    Felix Frankfurter:

    I would like to ask — assuming (Inaudible) — assumed that (Inaudible) assumed their rights on the (Inaudible) — assume that that is so, assumed that what was done (Inaudible) —

    David Ginsburg:

    By that you mean, can’t the law of West Virginia — may West Virginia do what it has done in this case, that is to say on the assumption made by Mr. Mitchell that he has said it’s possible that West Virginia, the Supreme Court of Appeals received these applications for certiorari, for habeas corpus, they examined it.

    They also examined the law of the State of Pennsylvania.

    They concluded that this man was guilty of felonies punishable by imprisonment in the penitentiary under the law of West Pennsylvania and then denied the petitions —

    Felix Frankfurter:

    Is that the law in (Inaudible) —

    David Ginsburg:

    And I would concede that if that were done, so far as concerns that particular aspect of the case without reference either to notice or to equal protection, I would regard that as sufficient under the law.

    Felix Frankfurter:

    (Inaudible)

    David Ginsburg:

    It would be a curious practice Mr. Justice Frankfurter to have a man in jail under a life sentence and then say to him that you have the right to test this, the notice in hearing which we are giving you is a notice and hearing to file a petition for an application for habeas corpus.

    Felix Frankfurter:

    (Inaudible)

    David Ginsburg:

    No sir.

    That — this means —

    Felix Frankfurter:

    (Inaudible)

    David Ginsburg:

    No, there were 983 on this — its page 59, there were 983 prisoners identified by name who were subject to the recidivist statute and who could have been imprisoned for life.

    Of these 983, only 79 were in fact sentenced to life imprisonment.

    Although the statute has indicated is mandatory.

    904 were imprisoned but only on the last offense.

    Felix Frankfurter:

    (Inaudible)

    David Ginsburg:

    Precisely.

    Felix Frankfurter:

    (Inaudible)

    David Ginsburg:

    No sir.

    Those are large counties and I will not characterize the State of — the law observance in them.

    Felix Frankfurter:

    (Inaudible)

    David Ginsburg:

    Cabell, that’s where I come from sir.

    Felix Frankfurter:

    (Inaudible)

    David Ginsburg:

    (Inaudible)

    Felix Frankfurter:

    (Inaudible)

    David Ginsburg:

    Yes sir.

    Potter Stewart:

    What county is (Inaudible)?

    David Ginsburg:

    Ohio.

    Felix Frankfurter:

    (Inaudible)

    Earl Warren:

    Mr. Ginsburg, before you sit down, on behalf of the Court, I should like to express my appreciation to you for having to take this as a public service and (Inaudible) lawyers like yourself for the way you — I mean, take this tasks for public service.

    (Inaudible) — we appreciate the diligence (Inaudible) manner which you have (Inaudible) —