Parker v. Ellis Page 2

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Audio Transcription for Oral Argument - January 20, 1960 (Part 2) in Parker v. Ellis

Audio Transcription for Oral Argument - January 20, 1960 (Part 1) in Parker v. Ellis

Frank W. Wozencraft:

It is the position of petitioner that under the long established line of cases of this Court in the cases such as Johnson versus Zerbst in 304 U.S. and in Uveges versus Pennsylvania in 335 U.S. that this was certainly not a knowing denial of the right to counsel.

The trial which -- which succeeded this --

Earl Warren:

(Voice Overlap) May I ask before you get to that?

What is the significance of this statement if you want to apply for a suspended sentence, you let me know and I'll arrange for a lawyer to help you with that part only?

Is that -- is that implied with -- he can have a lawyer if he pleads guilty?

Frank W. Wozencraft:

There is a special statute in Texas, Your Honor, that says “As to a suspension of sentence plea,” when he wants a suspended sentence that he can -- he can obtain counsel for it.

I believe this is whether or not he has pleaded guilty.

Earl Warren:

But that can only come either after he's convicted by a jury or after he pleads guilty, is that right?

Frank W. Wozencraft:

Yes, definitely.

So that there is a misstatement by the Court, a clear denial of any counsel to be provided by the court for this man, in this jury trial.

Felix Frankfurter:

Can you --

Charles E. Whittaker:

(Inaudible)

Frank W. Wozencraft:

No sir, I don't think that that can be claimed to be a specific request, but I don't believe that a specific request is necessary under the decisions of these case and you've -- of this Court in Uveges versus Pennsylvania and in Johnson versus Zerbst, particularly whereas here -- it must be apparent to the Court as matter proceeds that there is no possible way by which this man can know enough to protect his rights without a counsel.

Charles E. Whittaker:

Was this not also suggested if I may ask.

Was there any claim by this man before the Court of indigence and inability therefore to hire and pay a lawyer?

Frank W. Wozencraft:

No sir, I don't believe that that appears before the Court, but again in the little town of Dumas, things like that, you could almost take judicial notice off.

I don't mean that the Court really should if in this case, but there is a distinct absence of any question by the Court as to whether or not he could afford counsel as to whether he hadn't taken any steps to obtain counsel or could do so.

Felix Frankfurter:

Well, just as a matter of curiosity, could you tell us what there is behind -- what policy or consideration behind this special rule in Texas that it'd be -- wants to have a -- suspend the sentence then he can have a lawyer after that?

Frank W. Wozencraft:

Your Honor, I'm afraid that I would not be able to justify the course of the legislation (Voice Overlap) in creating that statute or --

Felix Frankfurter:

I didn't mean --

Frank W. Wozencraft:

-- to explain its motives.

Felix Frankfurter:

I didn't mean justification but somebody must have had some reason to get something like that on the statute.

Is it on the statute?

Frank W. Wozencraft:

Yes, sir.

It's still on the statute books, but fortunately, as I mentioned later in this brief, there has -- since the grant of certiorari in this case, an amendment to the Texas statute authorizing right to counsel in any felony case by anyone so accused.

So that the provision for suspended sentence now, I suppose is a dead letter which will not be impealled -- appealed but fortunately will no longer may need it.

Earl Warren:

Authorizing or requiring the appointment of counsel in all the cases.

Frank W. Wozencraft:

Requiring it under the circumstances set out in the statute, Your Honor.

This appears in my brief on page five where the amendment is -- the amendment is set forth that when it is made known to the Court at an arraignment or any other time that an accused charged with a felony is too poor to employ a counsel, the Court shall appoint one or more practicing attorneys to defend him, who will have ten days to prepare for trial.

And it then goes on to say that in the bill, enacting this amendment that the fact that the previous article applied to capital cases and does not apply to ordinary felonies, creates an emergency and an imperative public necessity.