Palmieri v. Florida

PETITIONER:Palmieri
RESPONDENT:Florida
LOCATION:Washington Monument Grounds

DOCKET NO.: 131
DECIDED BY: Warren Court (1967-1969)
LOWER COURT:

CITATION: 393 US 218 (1968)
ARGUED: Nov 20, 1968
DECIDED: Dec 09, 1968

Facts of the case

Question

Audio Transcription for Oral Argument – November 20, 1968 in Palmieri v. Florida

Earl Warren:

No.131, Carmine Vincent Palmieri versus Florida.

Mr. Goldman.

Phillip Goldman:

Mr. Chief Justice, may it please the Court.

This hearing is on writ of Certiorari to the Supreme Court of Florida.

By way of background on February 6, 1965 and about 7:30 in the morning, a small grocery store in Dade County, Florida was robbed.

One of the prosecuting witnesses indicated that they had had about one to two minutes time to observe the robbery.

About a month later, March 1, 1965, the petitioner, Carmine Vincent Palmieri was arrested in his home at about 1:30 in the morning without a warrant and he was taken directly to the jail.

He was not taken before magistrate responsibility.

The next day of March 2, 1965, he was placed in a lineup at the jail without counsel where he was identified by Loy Dill, the manager of the restaurant — the manager of the grocery store.

Again, he had not been taken before a magistrate.

At least one other lineup was held on March 8, 1965 some eight days later at which time the petitioner was again identified by the son of the manager of the grocery store, still, he had been taken before a magistrate.

For 10 days, the petitioner was held without taken before a magistrate, without being arraigned and without benefit of a counsel and not until petitioner had secured counsel and applied for a petition of writ of habeas corpus, was he charged with armed robbery.

At the trial of this cause the sole incriminating — the sole evidence used against him was this lineup evidence, this illegal lineup evidence of the two witnesses.

Potter Stewart:

Are you — is it your contention that he was arrested without probable cause?

Phillip Goldman:

Your Honor, I don’t think there’s any doubt when he was arrested without probable cause.

The Supreme Court of Florida, that question was not presented for the Supreme Court of Florida and that question is not spelled out in the petition.

Potter Stewart:

Does the record show what —

Phillip Goldman:

The record showed —

Potter Stewart:

By what information the arresting officers have at the time he was arrested, the time they arrested him?

Phillip Goldman:

That’s specifically except that the only evidence they used at the trial was the illegal evidence which they gathered at a later time.

Potter Stewart:

Well, that’s not my question.

Phillip Goldman:

No, sir they have — the record does not speak as to what they have.

Potter Stewart:

I thought in reading the briefs and without calling them that the record did show that he was arrested only after the victim of the holdup had identified his picture — as the picture of the man who had held him up.

Phillip Goldman:

Mr. Justice Stewart, if the Court please, this is an argument made by the respondent —

Potter Stewart:

Not in term of argument, I’m talking about the facts.

Phillip Goldman:

No, I say this is an argument advanced by that but the record does not reflect that the record reflects on page 15 that they took some photographs of two after the arrest to the prosecuting witness and that he identified one of the photographs.

No less than the record does it say that the person he identified was the petitioner Carmine Vincent Palmieri, no less than the record.

As a matter of fact is we’re going to draw an inference from a solid record.

The record does show that the son was taken down — the first person who was arrested when the son was taken down he couldn’t identify him.

So, if we’re going to make an inference with solid record it is that the photograph which was identified by the father was not that of the petitioner.

Phillip Goldman:

But the record is silent on that point.

Now, the record reveals and this is a reflection on the lineup that they robber was described initially as a small person, a person of about 130 pounds, about 5’6” and at least one of the lineups — they’ve made a lineup where there were no small people in the lineup except the petitioner.

And the prosecuting witness indicated that he picked out the smallest person in the lineup which we say goes to the dubious reliability of the lineup.

It is also in the record that the father and the son told the story to the police together and it’s also in the record that he had only one to two minutes to observe the time.

Now, the state suggest in its brief that the procedure used in the case was similar to a procedure approved by this Court in Simmons versus United States.

I respectfully submit that that just isn’t the case.

The Simmons case involves the use of a pretrial photograph, the identification of it.

It does not involve the use of an illegal lineup.

Now, despite the continued objections and cross station of petitioner’s trial counsel, the illegal lineup evidence was used against the petitioner and as a result although this is important as colloquy in the record it shows that the judge would not allow the jury to hear the discussions as to the defects in the lineup.

But nevertheless, the jury would turn the verdict of guilt and he was sentenced to 20 years in prison.

What is it the fashion that you can say were in the lineup would affect the due process?

Phillip Goldman:

It was in the lineup.

Number one, there was no counsel.

Number two, I think the —

This was before Gilbert?

Phillip Goldman:

This was before this Denno but I don’t want to get in the question of semantics with you Mr. Justice Harlan but I think the question of this Denno decision of the Dennis decision is that there will be no reversals per se of lineups without counsel which took place prior to that date.

But it doesn’t cure the illegal lineup.

The lineup was still illegal having been held without counsel.

And as I understand the cases if you take the lineup plus something else this would be —

About the plus?

Phillip Goldman:

The plus here is not being taken for magistrate for 10 days being held incommunicado while they made a case against him.

They didn’t turn him loose until they had the case.

That is to apply —

Phillip Goldman:

I sure am sir.

You’re — you’re a little ahead of me.

I am, that’s one point that I guess and I think —

Hugo L. Black:

Is that crucial?

Phillip Goldman:

I don’t think it is absolutely necessary.

I suggest Mr. Justice Black that it fits but it could be that you could use the totality of circumstance rule of Mr. Justice Brennan in this Denno case of taking all the circumstances would bring about a reversal under the Fourteenth Amendment.

Abe Fortas:

Let’s say when was the lineup in connect — in conjunction with his being taken before the magistrate, when did the lineup occur?

Phillip Goldman:

The lineups occurred before he was ever taken for magistrate.

Until this day, he —

Abe Fortas:

Then what’s the connection between the two lineups?

Certain thing makes him look more like —

Phillip Goldman:

Well,

Abe Fortas:

— a villain.

Phillip Goldman:

— Mr. Justice Fortas, had there been, had he been taken for magistrate in my judgment he would have been turn loose because if we presumed that the magistrate will do his duty there was no probable cause.

In other words, all the evidence used at the trial came later.

Number two, he would have an opportunity to secure counsel that’s one of the purposes of preliminary hearing.

He would have the opportunity —

Abe Fortas:

Well, it sounds for me as if you’re really relying on the absence of counsels by the factors before you?

Phillip Goldman:

I’m relying on the whole picture.

Primarily I’m relying on the failure to take him before a magistrate within that time which it shocked me.

My practice’s attention is essentially civil with the corporate firm and I was shocked to find that this sort of things still goes on and as I dealt into it, I was even more shocked to find the extent to which it goes on because many states have these statutes and most of the states apparently ignored the statutes as I’ve said the case is in the footnote in our brief which indicate this point.

Now, I think —

Earl Warren:

We’ll recess now, Mr. Goldman.

Mr. Goldman, you may continue your argument.

Phillip Goldman:

Mr. Chief Justice may it please the Court.

I believe we recessed at about the point where the defendant had been convicted by the trial court.

An appeal was taken to the Third District Court of Appeal which is in the Florida setup with normally be defined Appellate Court.

That court’s opinion after reviewing the sequence of advance conclude that shows on the face of it that it was upset with the wrongs that had been done in the petition.

But without attempt to be fictitious in any manner that court concluded that under the doctrine of stare decisis that they had previously approved the matters where man had not been taken before magistrates timely while evidence have been gathered against him, they affirmed on that basis.

But they had some reservations and under the Florida Constitution Article V, Section 4, they certified the question to the Supreme Court of Florida and the question of great public interest.

Under the Supreme Court of Florida, affirmed again and they answered the question that they propounded to him.

And this Court also reviewed the sequence of advance and concluded that the petitioner had been wrong.

But the Supreme Court of Florida went on a basis that was harmless error that he had not been harmed, that had not been prejudiced.

And I really could not understand how this result could be reached in the face of the fact that all of the evidence introduced at the trial was the evidence which was developed during the unlawful detention.

The court also noted that the petitioner hadn’t requested to be taken before a magistrate and based its decision in part on that, actually the record on this point is silent and as this Court have stated in Conley decision, a waiver cannot be inferred, it’s not permissive from the silent record.

The record here is silent.

Also in the Conley case, the Court pointed out with respect to assistance of counsel, the assistance of counsel does not turn on a request.

Phillip Goldman:

And I respectfully submit that by analogy the right to put to hearing before a magistrate should not turn upon a request.

Actually, in its brief before this Court, the state continues to rely on the fact of a lack of prejudicial error and as I submitted it before if this man had been taken before a magistrate as required by law under Section 901.23 of the Florida Statutes or if it became a constitutional mandate, he would have been turn loose because all the evidence that was used against him was gathered after that took place.

The only other point is the point suggested by Mr. Justice Stewart from that perhaps there had been this identification but as I pointed out in this record, there was no identification of a photograph of this particular individual.

Now we, respectfully —

Potter Stewart:

This is not the part of your submission.

However, as I understand that this arrest was made without any probable cause, is it?

Phillip Goldman:

It is not a part of — we are not using the once on the case, the doctrine of an illegal arrest.

Potter Stewart:

Of a — you do not affirmatively claim that this was an illegal arrest.

Phillip Goldman:

That’s right.

Yes, sir, that’s right.

Our major point is that the McNabb-Mallory Rule should be applied to state court proceedings as a constitutional mandate.

Now, as this Court knows that McNabb-Mallory Rule stems with the decision of this Court which holds that if the dependant is unlawfully detained in violation of Rule 5 (a) of the Federal Criminal Rules and Procedure that evidence gathered during that time cannot be used in the conviction based on such evidence will be reversed.

Similar provisions in the form of legislation requiring that arrested person to be promptly taken before magistrate exists and practically every State in the Union I have collected in the footnote of those cases in our brief.

Interestingly enough as that point out in there.

Many, many states ignore this as the Florida case does.

As a matter of fact and I’m sure the Attorney General can tell you since this decision.

The Supreme Court of Florida has in a number of cases continued to ignore the provisions of 901.23.

Now, although McNabb-Mallory Rule has been a rule applicable to federal court proceedings, I think its an interesting coincidence that in the case Milton versus Cochran which is a Supreme Court of Florida case, the Supreme Court resided that if it didn’t start to do something about stopping this failure to take the man before magistrate that this Court of some other federal court would adopt the McNabb-Mallory Rule.

And without attempting to be fictitious, I respectfully suggest that the time has come to make a profit out of the Supreme of Florida because the McNabb-Mallory Rule is an essential part of due process.

In the McNabb case, Mr. Justice Frankfurter and I won’t repeat it but he makes an eloquent exposition as to the rational of that case, the public policy behind the rule.

Certainly, due process requires that the police must with reasonable profits, show legal cause for detaining an arrested person.

And if this is an important safeguard not only to convict form the innocent but towards actually convicting the guilty in an enlightened society.

This rational of this case applies certainly to state court proceedings.

I think it’s also interesting that in both McNabb and Mallory decisions, this Court did not reject the constitutional concept.

It says that it wasn’t getting into it, in other words, it didn’t reached the constitutional question.

And at deciding this question of legislative intent, construction and interpretation of a Rule 5 (a).

Potter Stewart:

Mr. Goldman.

Phillip Goldman:

Yes, sir.

Potter Stewart:

Even if the Court shall accept completely your submission that the McNabb-Mallory Rule should become a constitutional rule that would not automatically when your case for you would it because your theory, it’s necessary to go one step beyond that McNabb and Mallory themselves involved the admission of statements made by a man in custody before he was in custody if he was not probably before a magistrate within the reasonable time.

Phillip Goldman:

Yes, Mr. Justice Stewart.

Potter Stewart:

Are there any federal cases —

Phillip Goldman:

The Klapp Hold case cited in the Second District case in which this Court denied cert which involved search and seizure other than the confession.

Now, this is an argument made by the state too.

It is true that both McNabb and Mallory were confession cases but in fairness because I’m an advocate within and attempting to be objective in reading.

The rational of those decisions is the unlawful detention.

In other word, this Court has never held of a confession per se as illegal.

It’s only a confession which is gathered under certain circumstances which is illegal.

And the circumstances of McNabb-Mallory is the violation of Rule 5 (a).

Certainly, there’s nothing in need of those decision that indicates so that the tainting was something other than a confession that a different result would be reached.

But there is that difference in the case you suggest Your Honor.

Now, I think as this Court knows, the purpose of a preliminary hearing is to weed out groundless or unsupported charge of grave offenses and to relieve an accused of a degradation and expense of a criminal trial.

Certainly, a quick determination of probable cause isn’t assessed in any esteem of due process.

The preliminary hearing also serves another purpose.

It gives an opportunity for bail which is of course a constitutional right.

It gives the opportunity for counsel being appointed or being retained which is also a constitutional right.

The fact, that so many of our states, practically all of our states have an active legislation in effect adopting Rule 5 (a) as a part of their own state is indicative of the extent which this is ingrain in our concepts of due process of law.

And we respect and submit that under the decisions of this Court certainly the due process provisions required that the State of Florida defendant due process of law not only during the trial period of the former trial but throughout his entire accusatory period.

I think that was the Escobedo case.

And we’re suggesting that as a part of that due process requires that a man being taken before a magistrate within a reasonable period of time.

In some case, as you might have an expiration of the outer orbits of what constitutes a reasonable period of time.

I submit you don’t have to decide that now because 10 days is certainly an unreasonable period of time.

The record here reflects when the counsel asked the police officers said, “Are you aware of the statute requiring taken before magistrate?”

And he said, “Yes, sir.”

And he said, “Why didn’t you do it?”

And he said, “Well, it was 2:30 in the morning.”

The record is silent as to why he didn’t do it the next day or the next day or the next day after that for 10 days when he still didn’t do it.

Now, this idea of the constitutional requirement of McNabb-Mallory is not as unique as it might sound the first blush.

This Court has so many instances in cases which were cited in our brief reversed state court convictions where the person was unlawfully held incommunicado without advice of counsel or friend.

That by analogy is also appropriate here.

This man was actually held incommunicado for 10 days.

Phillip Goldman:

In fact, the case of Watts versus Indiana with Mr. Justice Marshall was recognized because it was one of his cases.

Although, this Court could not expressly apply the McNabb-Mallory Rule it came very close to it in reversing the state court conviction and one of the grounds cited was that a preliminary hearing under the –as replied by the law of Indiana had not been given and we respectfully submit that this should be a part of due process.

Now, it would probably be urged that the application of the McNabb-Mallory Rule to state court proceedings is going to hamper effective law enforcement.

That seems to be the present cry these days.

But I respectfully submit that nothing could be further from the truth as this Court knows the Federal Bureau of Investigation has had to live with the McNabb-Mallory Rule in Rule 5 (a) of the Federal Criminal Procedure Rules for over 15 years now and they still remain one of the most effective Law Enforcement Organization in this country if not in the United States.

Actually, with respect to the lineups, the language of this Court in the Wade case is singularly appropriate here.

In that case, the court points out the vagaries of eyewitness identification here.

There was one to two minutes as an opportunity to observe.

The case points out the fact that criminal law history is right with the instances of mistaken identification and the difficulty with identifying a stranger.

I think the part that is singularly applicable here is the part where this Court points out that it is a matter of common experience that once the person has made up his mind, nothing can change.

If so that the identification takes place actually at pretrial rather in a in trial.

Actually, we respectfully submit that under the facts of this case, the McNabb-Mallory Rule should apply.

But in fairness to and I think it fits and I think it’s a necessary holding.

But in fairness to my client, I wish the urge at this point that if this Court in its wisdom does not think that the McNabb-Mallory Rule should be applied then I suggest that the totality of circumstance rule which this Court has supplied in other instances requires a reversal under the mandate of the Fourteenth Amendment of the Constitution.

By that, I’m referring to the decision, I think its Cardozo and Mr. Justice Cardozo in the Palko case in the defense order of the liberty or if it violates the sense of justice or of the totality of circumstances indicate that there was not a fair trial.

Certainly, the facts in this case the taking of a man from his home at night, 1:30 in the morning over a month after the crime was convicted — it was committed, subjecting him to two lineups over 10-day period without the counsel, without the benefit of a magistrate.

All these facts together constitute, in my judgment, a monstrous affront to the dignity of man and that this conviction should be reversed.

Potter Stewart:

Would that be under (Inaudible)?

Phillip Goldman:

Armed robbery sir, and conviction is 20 years in prison.

That completes my submission.

Earl Warren:

Thank you.

Mr. Mendelow.

Howard Mendelow:

Mr. Chief Justice and may it please the Court.

I wish to apologize to Mr. Justice Stewart if at any time in reading the factual defamation by the state in its brief has come to the conclusion at the State of Florida meant to say that the photographs shown to the victim in this case were identified by him as the petitioner.

If we did say that, we apologize.

Potter Stewart:

I think that’s what I understand you to say on page 10 of your brief?

Howard Mendelow:

We did, sir.

Potter Stewart:

Further the victim picked out the petitioner’s picture prior to arrest.

Howard Mendelow:

Yes, sir.

We did say that and we wish to apologize to the Court at this time for that statement.

Byron R. White:

What is this about?

Howard Mendelow:

The fact is that he did pick out a picture and that is the extent of the record, Your Honor but we feel in our argument we have so stated that the court —

Byron R. White:

Did he pick out a picture?

Howard Mendelow:

A picture but it does not designate that he picked out a picture of the petitioner in this matter.

Byron R. White:

You mean, what you’re telling us now is that the picture he picked out was someone other than —

Howard Mendelow:

We do not know sir.

Byron R. White:

Oh, I see.

Howard Mendelow:

The record is not clear and it does not —

Potter Stewart:

The record simply doesn’t show any — am I right in my understanding that in no time, has there been any plain that the arrest was illegal?

Howard Mendelow:

That is correct, Mr. Justice Stewart and in no time was it raised on direct appeal and at no time was it raised on petitioner — on the certified question accommodating the petitioner for writ of certiorari in the Florida Supreme Court.

Potter Stewart:

So, for that reason there was no canvassing of the issue as to what probable cause there might have been or other than —

Howard Mendelow:

Other than what is reflected in the record per se.

Potter Stewart:

— by with respect to the knowledge of arresting officer.

Howard Mendelow:

Other than what is reflected in the record per se.

And we submit that from this record, it can be gleamed that there was sufficient probable cause to make an arrest.

In particular —

Thurgood Marshall:

Mr. Mendelow, what was the charge with when he was arrested?

Howard Mendelow:

(Voice Overlap) He was charged —

Thurgood Marshall:

When he was arrested?

Howard Mendelow:

— the record does not reflect any charge but we would assume —

Thurgood Marshall:

Is there anything in the record that any time that shows any charge that was ever filed during the whole 10 days.

Howard Mendelow:

Yes, there is Your Honor.

Thurgood Marshall:

Where is it?

Howard Mendelow:

By reasonable inference, a petitioner —

Thurgood Marshall:

I particularly said in the record.

Howard Mendelow:

No, sir.

Thurgood Marshall:

So, you held him for 10 days without any charge at all?

Howard Mendelow:

We would assume he was arrested and booked for a charge but it does not reflect in the record, it does reflect in the record that he was arrested.

Thurgood Marshall:

Just on general principle?

Howard Mendelow:

No sir, I would assume not.

Thurgood Marshall:

Well, I — don’t you think that to hold a man for 10 days requires the state to show what he was being held for?

Howard Mendelow:

I would think it would, Your Honor.

Thurgood Marshall:

And in this case it does not show anything.

Howard Mendelow:

Not specifically per se in the record.

Thurgood Marshall:

What does in the record helps you on this point?

Howard Mendelow:

The fact that he was arrested and 25 hours after his arrest a lineup was held and the victim of the particular robbery that he was arrested for came in and picked him out of six-man lineup.

Thurgood Marshall:

Did he pick him out or they picked the shortest man out who was there?

Howard Mendelow:

Mr. Justice Marshall, there were two lineups held in this case.

The first lineup was a six-man lineup held 25 hours after the arrest of the petitioner.

There is nothing in this record that depicts exactly how many short man or tall man or fat man or skinny man where in this lineup.

This record is completely void of any reference to the description of any of the particular six-man in this particular lineup.

There was a subsequent lineup held six days later in which the son of the victim appeared to the police headquarters and picked the petitioner out of the lineup consisting of five men of which the record reflects that he picked out the shortest man in the lineup.

The record does also not reflect that they were –that the various sizes between the men in the lineup just that he picked up the shortest, he picked up a man 5’6” that could be man with 5’6-1/2”, 5’7”, 5’7-1/2”, and a 5’8” in the lineup but the record does not reflect that sir.

Thurgood Marshall:

And was he charged then?

Howard Mendelow:

The ultimate charge was placed against him 10 days after his initial arrest.

Thurgood Marshall:

How many days after he was identified?

That would be about six —

Howard Mendelow:

Eight days.

Thurgood Marshall:

Eight days.

Howard Mendelow:

Eight days, Your Honor but a petition for writ of habeas corpus was filed.

It does not reflect exactly one of this file.

But some time during this 10-day period, a petition for writ of habeas corpus was filed by petitioner through counsel.

At which time, subsequent to that and at 10 days the information was filed by the state in this course.

Byron R. White:

But the fact that there’s — now they’re asking no issue of an illegal residence case?

Howard Mendelow:

Correct sir, Mr. Justice White.

Byron R. White:

And the Supreme Court of Florida said (Inaudible)?

Howard Mendelow:

That is correct.

Byron R. White:

(Inaudible)

Howard Mendelow:

They’re still is in as far as State of Florida is concerned.

We feel that the record reflects sufficient probable cause for the arrest and the initial detention.

Byron R. White:

Who is it — even if the record does not (Inaudible)?

Howard Mendelow:

Correct, Your Honor.

Byron R. White:

And no detention at your risk? Not found on (Inaudible).

Howard Mendelow:

That is correct.

Earl Warren:

When was the petition for habeas corpus filed with relation to that second lineup?

Howard Mendelow:

The record does not reflect that, Your Honor.

I don’t know it was somewhere in between —

Earl Warren:

Well, I suppose you could –you could tell me what date the lineup was on and what date the petitioner was filed detention.

Howard Mendelow:

No, because it hasn’t been made in exhibit or part of the exhibit in this file.

The initial lineup was held on March 2nd, six days subsequent to that, the second lineup was held.

On March 10th, the affirmation was filed.

Some time during that period, a petition for habeas corpus was filed petitioner’s counsel.

And that is the only thing that I can safely say the record reflects.

I wish to also take issue with one fact that has been insisted upon by petitioner.

And that is the sole evidence –the sole evidence that petitioner’s conviction was based upon was the identification that occurred at the lineup.

The record is replete that an, in-court identification was made by both the victim Loy Dill and the witness Loy Dill, Jr. his son from the activity or the incident or the crime, the actual robbery that occurred some time previous to his arrest.

The testimony concerning the lineup was merely corroboration to that identification.

Further, this is fortified by the fact that both instances when the identification was made by the victim and his son, they noticed the difference in the petitioner’s appearance from the time they saw him at the you (Inaudible) Store, the grocery store that was robbed and his appearance in court.

And not also related back to the incident and not to the lineup.

They noticed that in both cases that he was heavier, he appeared heavier.

Further —

Potter Stewart:

How does the fact, there’s a lot of facts in the lineup to get into the evidence of thought?

Howard Mendelow:

The first witness called by the State was the victim Loy Dill.

He testified as to the events that occurred at the robbery.

He also, being a former military policeman, testified that when the police arrived at the (Inaudible) Store after the robbery, he gave a detailed and I mean detailed description of the robber describing his height, weight, even so far at describing his complexion which he described his pimply with acne complexion to the police officers.

This identification was then made in court based on that description and based upon seeing the petitioner in court.

Potter Stewart:

Well, I’m trying to get a — were the facts in the lineup, what are the direct examination or cross exam?

Howard Mendelow:

They were –initially, they were brought out on direct examination and then they were brought out on cross-examination.

But they were brought out, we submit on direct examination merely for corroboration and not for the primary identification of the petitioner on this matter.

Abe Fortas:

Is there anything else sir that occurred during the time of the detention which I think that it’s agreeing was unlawful in the Florida Law?

Abe Fortas:

Is there anything else except for the lineup that occurred according to the record?

We have only this appendix to which is not the complete transcript.

Howard Mendelow:

I will submit Mr. Justice Fortas that nothing other than two lineups —

Abe Fortas:

Two lineups?

Howard Mendelow:

That’s correct.

Abe Fortas:

Is there any evidence in this record of prolonged questioning?

Howard Mendelow:

There is no evidence in the record and the record in fact and the appendix which is before the court that indicates any question of any way manner or form, nor was petitioner’s conviction based upon any inculpatory statements or exculpatory statements or any admission or any statement whatsoever made by him while in custody.

Abe Fortas:

Alright, that’s what sort of baffling about this case that is to say that do we have before this record showing that the man was kept in jail for 10 days and have violation of Florida Statute which requires that it be taken before the magistrate and the courts below seemed to agree that there was some violation of the Florida Statute.

But the record didn’t show anything that happened except the two lineups.

Howard Mendelow:

That is correct.

And I would like to adjust myself a little later in my argument concerning the violation or the technical violation of Florida Statute 901.23 —

Abe Fortas:

But am I correct or incorrect in saying that the –in recalling that the court below seems to agree that it’s a violation of the Florida Statute which says, number one, indicates of maybe the remedy as not to set aside of the conviction.

Number two, that it’s not prejudicial

Howard Mendelow:

Basically, you are correct, Mr. Justice Fortas, I will try to refine that a little bit in the cause of my argument finally.

Abe Fortas:

Thank you.

Howard Mendelow:

Petitioner contends or asks this Court to extend the McNabb-Mallory Rule and make it applicable to the States and also make it applicable to confessions.

We submit that this would be a double extension —

Abe Fortas:

You mean, make it applicable to the lineup?

Howard Mendelow:

Excuse me, make it applicable to the lineup, I’m sorry.

We submit that this would be a double extension of a rule that was initially promulgated by Congress as Federal Rule of Criminal Procedure and treated by this Court in its supervisory powers of the –over the federal courts and the criminal procedure requirements of federal prosecutions.

The rule as effectuated by the cases of McNabb versus United States and Mallory versus United States make it clear that its prime purpose was to alleviate the evils arising out of secret interrogation, secret interrogation.

Nowhere, in any of the cases that I have been able to research decided by this Court has the rule been used other than in any confession cases.

Nowhere, have I been able to determine that this rule has ever been made applicable to the states in fact, this Court many times and in many cases has stated that this is a rule of the federal criminal procedure and it is not applicable to the states.

Further, we say that the void was — there was a void that is created by not making this rule applicable to the states has been filled — the breach has been filled by decisions of this Court whereby the rights — the constitutional rights of the accused have been looked after and made applicable to the state prosecutions and has protected the accused in every stage that would be applicable to this case and we cite to the court starting with Ash Craft versus Tennessee which this Court stated that, a detention in a confession case inherently dangerous in a confession case.

Then we have the Mapp case which protects the accused in illegal search and seizure cases if the — even if the illegal search and seizure occurred during the detention.

We have the Wong Sun case where if there is a primary illegality and the taint has not been purged than any evidence secured as a result of that primary illegality is excludable.

We have the Escobedo, Messiah, Miranda cases which certainly afford an accused the protections of the Fifth and Sixth Amendments to United States Constitution in confession cases.

We have weighed Gilbert, Stovall that are particularly applicable to this case where the only evidence secured is that of the identification by lineup and both petitioner and the respondent do agree that the right to counsel, their lineups is here today and it has been here since June 12, 1967 but that ruling in the Stovall decision makes it only prospective and not retroactive.

Thurgood Marshall:

Mr. Mendelow, do you know the case where the Supreme of Court of Florida has said that they need to comply with the statutes required the thing for magistrate as grounds for reversal of the criminal case?

Howard Mendelow:

No case to my knowledge has ever been decided on the cases —

Thurgood Marshall:

Now, what good is the statute if it’s not followed?

Howard Mendelow:

Your Honor, the Supreme Court of Florida has consistently held that a preliminary hearing is not a critical stage in a criminal prosecution case and may I explain why.

The Florida Criminal Procedure Statute which requires an accused who was arrested without warrant to be taken before a committing magistrate without unnecessary delay.

That preliminary hearing resulting from that statute would only be a preliminary hearing according to our statute to decide probable cause of the charges.

Thurgood Marshall:

No questions about from the counsel or anything?

Howard Mendelow:

I’ve assumed that that’s what the magistrate would do when the accused just presented before and I’m only reading the literal or interpreting the literal expression of the statute.

But I would assume that a magistrate who hasn’t accused be brought before him would advice him of his right to bail, his right to counsel, his right that anything he might say may be used against him, and the fact that he doesn’t have to say anything.

Thurgood Marshall:

I don’t know the answer but Mr. Goldman said that this man was held incommunicado.

Howard Mendelow:

I don’t believe the record reflects that.

Thurgood Marshall:

They’ve just held as any other —

Howard Mendelow:

He was held pursuant to a lawful arrest.

And that’s all I can say to this Court and that’s all that the record, I feel that the record reflects.

Abe Fortas:

In what charge was he booked?

Was it before investigation or?

Howard Mendelow:

Mr. Justice Marshall, you asked me the question a little while ago and I’m afraid that I didn’t have the answer to Mr. Justice Fortas, I can only assume from the record that he was booked for the crime for which he was ultimately tried.

Abe Fortas:

You don’t know whether that’s so or not?

Howard Mendelow:

Well, the only way I can bring this clear to the Court, I do not know but the only way I can infer from the record is that 25 hours after his arrest, he was placed in a lineup and the victim of this particular robbery that he was arrested for was called down to identify someone —

Abe Fortas:

Is there any — and you also said in response to Justice Marshall’s question as I understand it that, there are no cases under this Florida Statute?

Howard Mendelow:

Yes, there are.

Abe Fortas:

Well, what’s the maximum period of detention? How long can a person be held without being charged or taken before a magistrate?

Is there any indication this to that in the Florida case law?

Howard Mendelow:

I just don’t know the answer for it Mr. Justice Fortas.

All I know is that under — almost every circumstance, this case – this particular statute has not been held to be a critical part.

Now, the circumstances that were — it would be a critical part, in my understanding this is where out of preliminary hearing, the accused has pled guilty.

And then had withdrawn his pleas of guilty prior to trial and that evidence was sought to be introduced against him, the guilty plea at the preliminary hearing and that the Florida’s Supreme Court has said, this was critical.

But as far as the time or the amount of time after arrest and before arraignment to my knowledge or at least at this time I cannot say to you a case which would say how much time would be allowable.

Now the reason why the —

Byron R. White:

Mr. Mendelow, let me ask you?

Howard Mendelow:

Yes, Mr. Justice White.

Byron R. White:

Awhile ago, you indicated with that the issue of illegal arrest hasn’t been made in this proceeding.

Byron R. White:

I gather the reading was raised before the trial court?

Howard Mendelow:

Yes, it was before the trial court.

Byron R. White:

(Inaudible) from the oral motion and written?

Howard Mendelow:

Yes, it was, Your Honor.

Byron R. White:

And now, where did that point to us then?

Howard Mendelow:

Down to direct appeal.

Byron R. White:

But I don’t quite when he mentioned it in the District Court of Appeals?

Howard Mendelow:

That’s correct because it wasn’t presented.

Potter Stewart:

Is that the point raise in those parts?

Howard Mendelow:

Not to my knowledge.

Byron R. White:

It is not —

Howard Mendelow:

The point raised in the District Court was the detention and sufficiency.

And the certified question was to the Florida Supreme Court was merely on the detention aspect of the case.

Byron R. White:

In Florida, after preliminary hearing it’s found that there’s no probable cause?

Howard Mendelow:

No, because there are many, many circumstances why a magistrate would say there’d be no probable cause.

However, I would like to discuss with the Court, the factor that even if the petitioner was brought before a committing magistrate and he was released by this committing magistrate under the Florida procedure and under a procedure approved by this Court in Beck versus Washington.

The assistant or the State Attorney’s office or the State Prosecuting Official in Florida would still bring judges, bring former charges against the petitioner.

Byron R. White:

(Inaudible)?

Howard Mendelow:

No, as I say, I don’t know what would happen at the preliminary hearing but suppose additional evidence was brought in.

Even on the same evidence, I would make that statement.

They could be arrested on the capias issued by the criminal court of —

Byron R. White:

(Inaudible)?

Howard Mendelow:

We could arrest him, yes sir on a capias issued by the State Attorney’s office after he had been discharged by the committing magistrate.

Further, counsel for petitioner has stated that there was no probable cause and surely the committing magistrate would have released the petitioner.

I say and this is a point that I think it is very important under due process argument.

Let us suppose that after the petitioner was arrested, he was brought before the committing magistrate and this victim who had given such a clear and precise description to the arrest to the officers in the case had appeared at the preliminary hearing and had pointed to the petitioner and said, “Yes, this is the man that robbed me.”

Now we ask the Court, which would be more susceptible to suggestive identification that one on one confrontation before the magistrate or the procedure that was used in the instant case where the victim had to point the particular petitioner out of the six-man lineup?

We feel that due process was not violated here by requiring the petitioner to stand in a six-man lineup 25 hours after his arrest.

Earl Warren:

Wouldn’t this language in the opinion of the Court of Appeals indicate that they did challenge a proper cause for arrest that says, it is urged that if a direction of the statute had followed the magistrate would have been required to release the defendants for lack of probable cause to retain defendant in jail.

It is pointed out that the evidence against the defendant was procured at the jail subsequent to time at which the appellant would have been released that he had been released if he had been taken before a magistrate.

Earl Warren:

I would not indicate that it was raised in that court?

Howard Mendelow:

It was raised in that court the same as it was raised here, Your Honor, and in the Supreme Court of Florida on the basis that speculatively the petitioner would have been released.

That’s pure speculation and nothing more.

Earl Warren:

Well, I understood you to say that it was not raised except in the trial court, that’s all —

Howard Mendelow:

The actual illegal — the lawful as so as the illegality of the arrest per se was not raised except in the trial court.

We submit respectfully so that the petitioner was not prejudiced in any way in a manner or reform but is not being taken before a committing magistrate immediately after his arrest.

One, because the probable cause necessarily for his arrest still existed and he could have been charged and rearrested by the state prosecuting officials.

And number two, a prosecution could have been forthcoming based on that information.

And number three, his conviction and this perhaps is the most important aspect of the case.

His conviction was not based on the lineup identification solely.

His conviction was based on the in-court identification.

Independent of any lineup identification that was subsequently made after his arrest and that is clear from the record.

So therefore, if his prosecution was not dependent upon the lineup, and his conviction was not dependent on the lineup, how can we say that the petitioner was prejudiced by not being brought before a committing magistrate?

There is just now casual connection between prosecution or the conviction and is not being brought before a committing magistrate in the opinion of the respondent on this matter.

Therefore, we respectfully submit that the McNabb-Mallory Rule to be extended to the states under this factual circumstance and situation would be a double extension and not necessarily call for by factual situation in this case.

Further, we respectfully submit that the petitioner’s conviction was not in any way based upon his not being brought before committing magistrate.

We respectfully ask this Court to affirm the decision of the Supreme Court of the State of Florida in this cause.

Thank you very much.

Earl Warren:

Mr. Goldman.

Phillip Goldman:

I have no further comments.

Earl Warren:

Mr. Goldman before we pass to the —