Pennsylvania ex rel. Herman v. Claudy

PETITIONER:Pennsylvania ex rel. Herman
RESPONDENT:Claudy
LOCATION:

DOCKET NO.: 45
DECIDED BY: Warren Court (1955-1956)
LOWER COURT:

ARGUED: Nov 14, 1955
DECIDED: Jan 09, 1956

Facts of the case

Question

Audio Transcription for Oral Argument – November 14, 1955 in Pennsylvania ex rel. Herman v. Claudy

Earl Warren:

Number 45 on the docket, Commonwealth of Pennsylvania on the relation of Stephen J. Herman, Petitioner versus Dr. John W. Claudy, Warden.

Mr. Levy.

Herbert Monte Levy:

Thank you, Your Honor.

Earl Warren:

You may proceed Mr. Levy.

Herbert Monte Levy:

This case is here on certiorari from the Pennsylvania Courts.

The Supreme Court of Pennsylvania having define to review the decision of the Pennsylvania Superior Court which affirmed the denial of the writ of habeas corpus brought to set aside the conviction that Stephen J. Herman on 27 — 27 different offenses involving charges of burglary, larceny, and forgery.

The two claims that were raised in the petition for habeas corpus preserves throughout the appeal and now presented to this Court are claims firstly of denial of right to counsel and that Herman was never told of the right to be appointed by counsel, which we contend he had under the circumstances of this case.

And secondly, the point which my colleague Mrs. Matson shall argue, the fact that the detention of this man incommunicado for 72 hours during which he was physically assaulted and threatened with the resultant plea of guilty amounted in itself to a separate and independent violation of due process of law under the Fourteenth Amendment.

And that the two factors is taken together, certainly warrant of reversal of the conviction below.

As to the facts of this case, Herman was arrested in September of 1945.

He was a youth of 21-years of age.

He had about six years of elementary school work or an education equivalent to it.

He was held for 72 hours in a women’s quarters of the city jail which in itself might have had some sort of an intimidatory effect, though we won’t press that point, was subjected according to the allegations of his petition to a physical assault by police officers during the course of which they grabbed him by the throat and threatened to choke him if he did not confess.

And threats were made against his safety and the safety of his wife.

He was held incommunicado during this time.

As a result of it at the end of the three days, he signed a form entitled “waiver of grand jury” an entry of plea and he agreed in that form to plead guilty to three indictments of burglary, larceny, and forgery.

Felix Frankfurter:

In your statement of facts, you’re not going give us anything except that is beyond dispute, is that it?

Herbert Monte Levy:

Let me clarify that Your Honor.

The allegations were made in the petition according to the Superior Court of Pennsylvania in this case and there other decisions, allegations in the petition where there is no hearing held, and there was no hearing held here must be accepted as true unless contradicted by the record.

There were denials of some of these allegations made by the State which we consider to be irrelevant because the cases were disposed of without any hearing whatsoever.

And therefore, the Superior — the Supreme Court of Pennsylvania where all came into play that therefore, you must look at the allegations that were made and accept them as true because uncontradicted by the record.

There is only one thing on which we were actually contradicted by the record and that was the state that made him a petition to the effect that this man did not have any knowledge of the charges against him, whereas in fact the charges have been read to him in some detail upon his guilty plea.

And so, we would want to withdraw and abandon any claim based upon that but everything else was not contradicted by the record.

Every allegation was not contradicted by the record and therefore, must be accepted as true under the Pennsylvania rule and, of course, under the rule of this case being announced in the Superior Court of Pennsylvania’s rule.

When — though he had signed an agreement to plead guilty to only three indictments he was actually held for 27 — 27 different offenses represented by 8 indictments.

He was taken before the alderman who was equivalent there to a justice of the peace.

And the record in this case is silent as to what transpired before that alderman.

He late — he later pleaded guilty in open court and to all of these offenses.

But, at no time was he advised to the right of counsel.

Now, the reason we consider this to be important is that the 27 different offenses for which he was facing sentence involved a possibility, a maximum potential sentence of 315 years which I would say is substantially more than life imprisonment.

Herbert Monte Levy:

The offenses were quite complex.

We point to our brief — in our brief to various complex questions of law which the Philadelphia or Pittsburgh lawyer might have been necessary to dig out.

And we furthermore point out that the man was prejudiced by the failure to have counsel in these regards.He also alleged that he had no knowledge of his right to counsel whatsoever.

He stated in his petition that he had — had one past court experience without benefit of counsel and that he did not know of his right to counsel and was unfamiliar with the requirements of formal courtroom procedure.

John M. Harlan:

How long was the time of that prior plea has gone down?

Herbert Monte Levy:

Prior plea was two years before, I believe.

He would have been 19 at the time and he was given no counsel then.

The sentencing judge did not advise him at all of the possible consequences of the plea of guilty.

This was alleged.

Again, this is uncontradicted by the record as is everything that I say here.

The District Attorney merely read the indictments or summarized them and the man, his plea of guilty had been recorded already by the District Attorney.

And also at this particular point or just before this hearing began, the District Attorney, according to the allegation of the petition here, told the man when he showed him the indictments, the eight indictments with the 27 different offenses listed in there, sign your name and forget.

And of course this isn’t reflected in the transcript of the proceedings but, of course, this is something which is not contradicted either by those transcripts of proceedings.

Now then, I think in some is really the essential facts of this particular case.

We urge in terms of the right to counsel that this case is absolutely indistinguishable from this Court’s decision, a few years ago, in the case of Uveges against Pennsylvania.

Each of the elements relied upon there was here in this case perhaps in aggravated degree.

In the Uveges case, I might add that there were no dissents from the theory of the case whatsoever and the only dissents were on purely procedural points as to whether the various constitutional questions had been preserved.

In our case, as I mentioned, the man was 21-years of age with a limited educational background.

In Uveges he was 17.

In Uveges he was faced with only four District Attorneys’ indictments.

Here he was faced with eight involving 27 separate offenses.

The period of sentence was almost identical in both of these cases.

Again, the claim was made in both cases that there was no informing of the prisoner of his right to counsel and that counsel was not advised, was not offered to him nor was he advised of his right thereto.

And again, there was a claim in both cases that the plea of guilty was under the direction of the District Attorney.

Here, we also have physical threats and assault at the first time which was not present in the Uveges case.

And again here as in Uveges, there was just one instance of prior criminal experience before.

And again in both cases there was no attempt of the Court to deal with the prisoner by telling him of his rights.

Now, the situation was even more serious here than in Uveges because in this case Herman faced the possibility of 315 years of sentence.

I might explain that under the Pennsylvania practice in determining sentences are given that the minimum sentence can be almost anything but can’t accept that it cannot rise higher than one half of the maximum possible sentences.

So that actually, the sentence with which Herman was faced was between a 157 1/2 years to 315 years.

Herbert Monte Levy:

Now arguing, we — we recognize first — I — I trust that I need not to go into the various past decisions of this Court involving the distinction between capital and noncapital cases in which this Court has held that under the Fourteenth Amendment, you must find some ingredient of unfairness and the man’s inability to handle the case himself before you could find the violation of due process.

I think that under that theory, we have the Uveges case here all over again in a slightly aggravated form so that really, little may be said we said about that particular point.

For myself, I’m interested in pressing upon this Court the theory.

I don’t know how successful I am going to be, but I think that this is a tenable theory in one which would help the administration of justice.

This Court has recognized time and time again and I quite agree with it, that it is impossible to lay down any mathematical formulation of the due process rule in relation to questions — in relation to right to counsel.

And of course that is impossible there are so many potential variables that it just can’t be done.

The Court has laid down only one ironclad rule that in capital cases there must be counsel and you don’t go into the question of the amount of punishment.

And we’d enter the amount of prejudice necessary.

We suggest that the same rule should be applied to cases in which a man faces the possibility of life sentence without possibility of parole.

That was faced here because parole under the Pennsylvania law, can only begin to run after the minimum sentence has been served.

So, the man might have found that he go to sentence minimum 157 1/2 years and no possibility of parole until that time was up.So that in effect, this man was facing a life sentence without possibility of parole.

Now, in the Bute case, the Bute v. Illinois before dissenters suggested and it was indicated in Uveges that a number of the court members felt this way.

That in every case where there is a serious offense charge, there must be an absolute right to counsel in State Fourteenth Amendment cases.

And in Uvegas it was pointed out some members of the Court felt that and others felt only when there where some ingredient of unfairness that was operating.

We suggest that one rule of thumb which the Court can lay down, is the rule that where a man is faced with the possibility of a life sentence without possibility of parole, which I shall call an absolute life sentence for purposes at least of argument that in that case too there is a requirement of an absolute right to counsel.

We attempted, John Finerty and I when we handled the case of Williams against New York before this Court, attempted to press upon it there that there was a distinction between life imprisonment and execution and that when a court deviated from the jury’s verdict and gave a death sentence of the jury had recommended life imprisonment.

We argue that there was such a difference in the quality of the punishments that there was a requirement of a full hearing with the right to cross-examine — cross-examine on the basis of probation and police reports.

This Court rejected that contention.It refused to make that distinction there between life imprisonment and the death sentence.

What I now urge upon the Court is that the Court refused here to make the same distinction and adopt as a rule of thumb the idea, the rule of law that a person who faces a life sentence without possibility of parole must have an absolute right to counsel.There have been cases before this Court in which a man faced a life imprisonment though it was not clear whether or not there was a possibility of parole.

I had been unable to find any indication at this point that I’m urging upon the Court now was ever pressed upon this Court before.

We think it has validity because in either case a man’s life was forfeited to the State.

In either case the charges against him are of course of the utmost seriousness, either in that totality or singly.

In either case the man is faced with spending his life in jail, a living death or to be executed in one short moment.

And I might say that the chaplains of the (Inaudible) for example have told me that those who have lived to face absolute life sentences after their death sentences were commuted have in all cases said that they would have preferred the electric chair.

And we suggest that those persons are entitled to the same protection.

Felix Frankfurter:

You would think — you think that kind of a question — that kind of — on here, that’s frequent, I’d rather go to the chair than get a life sentence or judges say that, a lawyer say that.

Do you think that kind of a subject or statement is worth anything?

Herbert Monte Levy:

I would —

Felix Frankfurter:

Of course, anything only formality’s act, that they now go to the electric chair because they could — they didn’t think to — because I want to go to the electric chair.

That adds validity to then march into the electric chair but all the speculative things as to whether a life sentence is better than or worst appears to be not worth of much of an argument.

Herbert Monte Levy:

Well —

Felix Frankfurter:

Doesn’t cut your argument but it does touch the support in this.

Herbert Monte Levy:

I — I would say in answer to that, Your Honor, that of course there’s really no way to find out.

Felix Frankfurter:

Precisely, that’s why it shouldn’t be pressed as an argument.

Herbert Monte Levy:

Except insofar as the reports generally, maybe relevant to the question of the seriousness of these two things, even if we cannot believe all conducts of status.

Felix Frankfurter:

Well, I know (Voice Overlap) —

Herbert Monte Levy:

I think in terms of acquitting —

Felix Frankfurter:

— as a serious business in the lights of that.

Herbert Monte Levy:

Precisely.

Felix Frankfurter:

Addressing myself to this psychological speculation that seems to me to becloud the actions here and sort of (Inaudible)

Herbert Monte Levy:

It may, I — I would prefer the rest it actually, in terms of this being virtually as serious as a death sentence with a difference and quality, not having any effect on what a fair trial is going to be.

I might add to that, that — that I for one find it difficult to see why a trial for the same — well, let — let’s take this example, suppose that a person who is tried in New York for a capital — for murder, a capital offense and he’s tried without counsel.

This Court would say in a flash that was not a fair trial.

Suppose the man is tried on exactly the same state of facts out in the State where there is not capital punishment and the man is tried without counsel.

At this stage, the Court might —

Felix Frankfurter:

Why is that?

Herbert Monte Levy:

— want to examine the fact.

Felix Frankfurter:

We’ve had that firstly.

Michigan has no capital.

Herbert Monte Levy:

That’s right.

I’m just suggesting that if you had the exact same cases in two jurisdictions, where this Court has to look at the essential fairness of the trial, that there would be no reason to hold that the trial in one place was fair and not fair in another —

Felix Frankfurter:

And if the (Voice Overlap) —

Herbert Monte Levy:

— on exactly those same circumstances.

Felix Frankfurter:

— the man who still lives has a chance to get out and the man who still had no chance to get out.

That seems to be a cardinal distinction, not with reference to your point, but a reference to the argument, that I’d rather be dead than be alive.

Herbert Monte Levy:

Yes.

I think so, Your Honor, except insofar as the chance is maybe absent as a practical matter.

Mr. Levy, I’m — I’m left somewhat uncertain as to the Pennsylvania procedure as to what sort of hearing this man had in the Appellate Courts, Superior Courts, you call it, don’t you?

There’s — there the — the only opinion we have is in there which points out that the — the record of the former trial was before this Court, is that — that is the trial court?

Herbert Monte Levy:

Yes, it was, Your Honor.

And his hearing and what step were taken?Was — is that record here before us?

Herbert Monte Levy:

The record of the hearing on the guilty plea in the trial court is here before you.

Is here?

Herbert Monte Levy:

That’s right.

The record —

It’s in the record?

Herbert Monte Levy:

That’s in the record, Your Honor.

The — actually it takes up, I would say the large part of the — large bulk of the record.

It begins at page 10 of — the (Voice Overlap) —

Well now, the statement made in the Superior Court, is that — do you challenge that anyway?

Herbert Monte Levy:

The decision of that court?

Yes.

Herbert Monte Levy:

Yes.

I think we —

I understand you to challenge the end result of that, don’t you?

Herbert Monte Levy:

That’s right.

You challenge the factual statement we made certain?

Herbert Monte Levy:

The only factual statement — I don’t think we would challenge any factual statements, Your Honor, though I’m not sure that it states all the facts that there are.

The only one thing which we would — I want to come —

I have it here before me, it shows that defendant stood at the , the Assistant District Attorney advised the Court, the various statements in regard to what has gone through.

Herbert Monte Levy:

That’s correct.

You — you don’t contend that he was mentally invalid, of course?

Herbert Monte Levy:

No, we contend that he was unable to make his own defense and competent to that particular extent.

Yes.

I understand it.

Herbert Monte Levy:

That’s right.

Earl Warren:

There was no hearing on the habeas corpus was it, Mr. Levy?

Herbert Monte Levy:

No.

There was none whatsoever.

The allegations of the petition were denied.

Herbert Monte Levy:

I understand this was the first time in this county that a plea was even asked for in opposition.

The — our opponents take the position that there need not have been a hearing because they had denied the allegations of the petition, which is something I frankly cannot understand, as you think need not be hearing only if the allegations are admitted —

But — but was not —

Herbert Monte Levy:

— of ones that —

— the habeas corpus filed at the same court or before the same judge that had taken his plea of guilty?

Herbert Monte Levy:

It was,Your Honor.

You — you say that he wasn’t unable to present his defense — he wasn’t unable to present his defense, is that right?

Herbert Monte Levy:

We say he wasn’t able to present an intelligently without counsel having been given to him.

Does he have a defense?

Herbert Monte Levy:

He had some defenses.

He claims first of all innocence upon all except one count.

There were other items for example, on one particular offense he was sentenced to the defense of false pretense.

He was sentenced to the penitentiary for a particular period whereas under Pennsylvania law he could not have been sent to the penitentiary for this particular offense or given the type of sentence he had.

We point out some other particular prejudices that he had.For example that (Voice Overlap) —

In one case, the sentence he got was within the limit that the Court might have given him.

Herbert Monte Levy:

Oh, yes.

We make no complaint of that Your Honor.

In one case he was charge with the commission of seven forgeries all of which involved the signing of his wife’s name checks written on her account and on it by the bank.

Any lawyer of course would see at once that there are questions in there as to whether he had the authority to sign his wife’s name, whether in fact anybody was actually defrauded.He might well have been enabled by — if his wife had refused to take the stand against him under the privilege to escape conviction on this charge.

He might have been able to convince the jury that he had her authority to sign this particular thing.

Also, the Commonwealth offered an evidence checks supporting six of the seven cases but on one of this counts the check wasn’t produced so that on the basis of that evidence there wouldn’t have been any opportunity for the prosecution to show that a person other than defendant’s wife had been defrauded.

And again her testimony might not been admissible.

John M. Harlan:

Does the record show why eight years elapsed before this application for habeas corpus in that?

Herbert Monte Levy:

No, it doesn’t, Your Honor.

The District Attorney’s Office had raised in the Pennsylvania courts the defense of latches which the Pennsylvania courts have ignored.

The records don’t show that, I would say, with all due deference to my colleague, Mrs. Matson that an attorney preparing such petition should prepare that one would not allege any such reasons in his petition because this Court has never suggested that that would be relevant.

This has just never taken any part and took in — of consideration in these cases.

Had there been any inclination to go into that sort of thing, it could have been shown at the hearing.

This isn’t in the record but just an illustration that the man in 1949 tried to get a copy of the Court records which was denied him by the Pennsylvania court that he tried to file a petition for habeas corpus in 1952, which apparently got lost in the Courts.

And finally, Mrs. Matson prepared another petition that was filed in 1953.

Herbert Monte Levy:

So, there is no explanation of the reasons for the delay.

But again we don’t believe that there is any such necessity.

And the courts at Pennsylvania never inquired into that.

I might add to that, Your Honor, that since we’ve touched on latches I might perhaps mention that at this particular point although I was hoping to hold that there a rebuttal.

John M. Harlan:

Oh, you — I don’t mean to interrupt you, go ahead.

Herbert Monte Levy:

Well, I — let me just phrase it Your Honor.

I — I might say on that that you have for example the case of Palmer v. Ashe, where after quite of a few more years, when we had in this particular case, 15 years after sentence, the man brought a motion to set aside the verdict on habeas corpus and it was granted.

And there was a decision of the U.S. Court of Appeals for the Second Circuit a few months ago not cited in our brief, the Morgan case in which the Court of Appeals in New York — U.S. Court of Appeals of New York pointed out that time could not possibly cure a void sentence.

And that the least that of State or Federal Government could do would be to set aside the particular conviction after it was found to have been void, that there was no way of restoring the time that a man had spent in jail on a particular offense.

So that there is absolutely no authority for stating that the delay in filing the habeas corpus is any reason for denying it.

The dissenters in Palmer v. Ashe thought that the factor of delay plus improbability of a lot of other allegations and failure to allege a lot of essential points that all of those states take it together might have been ground for the decision of the Pennsylvania courts and after justify it constitutionally.

That of course was the view of the dissenters.

And I might say that even with some members of this Court inclined to follow that dissent that there are numerous gestations between that case and ours, making ours a fortiori case.

The example on that case, there was no complexity of charges that the uncounseled defendant had to face.

In this case he had to.

In that case, there was no allegation of incompetency to conduct the man’s own defense at the time of the trial and the dissenter said that the court below had the right to assume competency in the absence of a contrary allegation.

This was the dissenters, the majority said no even to that.

In our case, there was an allegation of incompetency ti conduct the trial.

And this allegation was denied, that there was no denial again of the — not by the record but by the District Attorney and there was no denial here of the right that the man did not know that he had a right to counsel.

Also, in the Palmer v. Ashe case the man involved had never denied committing the crimes for which he had been sentenced whereas in this case before you, Herman has denied committing all of the crimes for which he was sentenced except one.

And I think perhaps most importantly in the Palmer v. Ashe case, there was no allegation there that the man in question did not know that he had a right to counsel.

Here, we have an allegation that Herman did not know that he had a right to counsel and this allegation stands uncontradicted, even by the District Attorney.

Stanley Reed:

As — as I remember Uveges, you spoke of the necessity of the judge protected the particularly or applicability on the part of person accused on trial, does it not?

Herbert Monte Levy:

May I — may I quote, Mr. Justice Reed on that.

You state — stated as follows.

The record shows no attempt on the part of the Court to make him understand the consequences of this plea.

Again here, the record is similarly silent.

Whatever a decision might have been if the trial court had informed him of his rights and conscientiously had undertaken to perform the functions ordinarily entrusted due counsel, we conclude that the opportunity to have counsel in this case was necessary element of a fair hearing.

Again the facts in Uveges and the facts, not particular case, I think don’t tell quite (Voice Overlap) —

But do you assume in your argument that the — that the Court that heard the petition for habeas corpus had a right to report it to that hearing all that he had learned of the former hearing?

Certainly, you’d say he could so far as the record show that.

Herbert Monte Levy:

Yes.

Now, there was actually no — nothing incorporated as I remember in his opinion that was not actually a part of the record except insofar as it related —

But, there was no opinion by the —

Herbert Monte Levy:

Pardon?

There was no opinion by the Court to refuse the habeas corpus there?

Herbert Monte Levy:

Yes.

I believe there was, Your Honor.

Except the denial, which — what you’re talking about, Uveges or —

Herbert Monte Levy:

I — I’m talking not about, we’re talking about two different ones.

I’m talking about our case, the Herman case.

Well, I — I was talking about your case.

Herbert Monte Levy:

Yes.

There was an opinion of the Court of Common Pleas that’s at — begins at page 18 of the record here and that’s the Court in which this young man was sentenced.

And I don’t believe there is anything in there which is important into the record except in terms of what happened on the arraignment.That is not a part of the record and we would state that of course therefore, cannot be considered by this Court because it’s not a part of the record before it.

Felix Frankfurter:

Mr. Levy, since we’re talking about what — what Court decided what, may I ask about a — a procedural point that irrelevant to the merit of this case.

That’s how I asked the District Attorney, the Attorney General since you’re not a Pennsylvanian lawyer.

But why is this writ to the Supreme Court of the Commonwealth rather than to the — what court is it?

Earl Warren:

The superior.

Felix Frankfurter:

The Superior Court is all that the Supreme Court did is to disallow an appeal which I take it on something to correction, which I take it just like our petition for certiorari and that is not in the adjudication.

Herbert Monte Levy:

Sir, I believe that in this various Pennsylvania cases, the cert writ has run to the intermediate Appellate Court.

Felix Frankfurter:

That it has, I’m asking why it should?

Herbert Monte Levy:

This I’m afraid I’m really incompetent to answer.

Felix Frankfurter:

Then I’d ask Pennsylvania about —

Herbert Monte Levy:

Right.

Earl Warren:

Mr. Levy, to revert to your suggestion that this Court formulate a — a rule compelling counsel and all cases that involve life imprisonment.

Now, in this case it was only the large number of years that — that were involved that — that impulse us to the idea that it could be a life imprisonment case but what number of years would you consider in such a rule would be the equivalent of — of life imprisonment, it might be?

Thirty, might be 40, might be 50 in this case, I think, you said it was 157 —

Herbert Monte Levy:

157.

Earl Warren:

— or something of that kind but what number of years would you — have you given any thought to that?

Herbert Monte Levy:

What I — I think Your Honor is a very tough problem that probably would not arise so much because generally when you have this multitude in these indictments and you find that the sentences are substantially more than any person’s normal life expectancy.

I would say that actually it should be measured in terms of not of life expectancy so much but in terms of what a — the age that the number of years that a person might possibly under any combination of circumstances lived to.

I — we don’t know exactly how that might be pinpricked out in future cases.

I doubt that it’s going to come up too much because you don’t have so much indeterminate sentencing.

It’s usually either the chair or gas chamber or life imprisonment period without possibility of parole.

I don’t really know how this Court could pinprick it out except perhaps on some basis of actuarial tables of what a man might face.

But I think that in terms of the case before us we have something like a 157 1/2 years minimum sentence that this is so clear as to admit there’s no dispute.

And the — and the fashion with the Supreme Court I would prefer to say that the — the Court could deal with that problem when they get to it.

Although, I — I frankly say that it might be in some cases difficulty then.

But again, I think, that that would clarify the edge tremendously for the number of cases that are in the courts, it will be in the courts in the future and in which — which might given off the good guide to future courts faced with the future decisions.

Do you —

Mr. Levy, I noticed the County Court of — Court of Common Pleas on page 19, it says, many of this (Inaudible) were — runs concurrent.

Herbert Monte Levy:

That’s right.

So, we go additional time, do you take the — your consideration goes down to as what you say as to having 150 odd years.

Herbert Monte Levy:

Well, when we say —

What’s the length of time that we have to serve to?

Herbert Monte Levy:

Well, in this particular — if they’ll all run concurrently.

I don’t know precisely what that figure would be, Your Honor.

The Court says here, 17 years.

Herbert Monte Levy:

Yes.

That’s what he gave him 17 1/2 years but —

Was not 150?

Herbert Monte Levy:

No, no.

He didn’t — the Court did not give him the maximum possible sentence.

But in —

But you read it out from there, it seems to me what the Court says here that to promulgate or (Inaudible) to get as much as 17 1/2 years might have a counsel.

Herbert Monte Levy:

No, Your Honor.

I’m — I’m thinking in these terms.

A man maybe tried for murder, a capital offense, face a death sentence and yet it may well be that he’s going to be convicted in the end by manslaughter — for manslaughter and get perhaps, let’s say a two year sentence.

Now, under such circumstances this Court has ruled that interstate case, it is the potential of what the man faces, the death sentence that determines whether or not he had an absolute right to counsel rather than the particular punishment which was actually made it out.

Herbert Monte Levy:

And what we suggest here is again using that same task here.

The potential of what the man faced again is sentence of 157 1/2 years to 350.

What’s the fact (Inaudible) to proceed on any one offense?

Herbert Monte Levy:

Any one offense, I would —

Any one of that.

Herbert Monte Levy:

I think 20 — 20 years.

20 years.

Herbert Monte Levy:

Again, we suggest considering it on a maximum basis of what can happen to this particular man.

John M. Harlan:

As I understand your position, we don’t have to go as far as that to bring the matter of reversal, your argument is something here that you think might make a good rule to the future, but it isn’t necessarily the limits of your case.

Herbert Monte Levy:

Precisely, Your Honor.

I would– I think it might even say that you took my next words out of my mouth.

Actually, the case is really as close a case to Uveges and the person could possibly get.

There’s been now attempt to distinguish it on the part of the District Attorney in his brief whatsoever.

And I think it is crystal clear that under the Uveges and under the various other decisions that this case requires a reversal.

I don’t wish to take up time going into all the nuances of these opinions unless the Court should like me to.

That’s all spelled out in the briefs that we have submitted and the — if the Court has no more questions I’d like to turn the matter over to my colleague, Mrs. Matson.

Well, I have one thought that I can ask about.

If it — would you say that the fair statement, the rule of — that’s a part in Uveges, that that is dependent on the circumstances to the — who’s better then to judge that, couldn’t the — the judge himself who had these facts before him and the allegations.

If — this is like the — we’ve had other — other cases here, I won’t be specific but we were — the judge has (Inaudible) with some hostilities and so forth against the accused.

Herbert Monte Levy:

Well the — there wasn’t any hostility —

Here, hearing the — the hearings of a man who had the man before him, they heard his plea, who — maybe the sentences.

Then on — on habeas corpus grounds he has all the matters a part of the background for making conclusions as to whether he was unfairly treated.

It’s a mere fact that he himself sat with the other case to debar him as the judge in reaching his proper conclusion.

Herbert Monte Levy:

No.

We make no contention that that would be bargained from reaching the conclusion, Your Honor.

Starting what?

Herbert Monte Levy:

That — that might some interesting point that it is before this Court here.

Habeas corpus is usually returnable before the same judge which bothers me.

In terms of hostility, the only thing we can point to is — and I don’t mean like I can stress this to much be quite honest.

Comments like now, you want the Court to have mercy.

Herbert Monte Levy:

There is an end to being merciful.

We did this in 1944.

And then, throws himself on the mercy of the Court, I’m afraid I took my own copy of the transcript here, not the marked one.

And this kind of sentence, will you explain by the Court, will you explain to me why the Court should extend in any way to you.

Now, I would state that whereas a Court can decide this, actually, the Court before which the guilty pleas were ended, did decide the matter but only on the basis of the record.

They made no comments actually.

The Court made no comments, importing any personal observations of the matter, anything at that sort.

They decided it solely on that basis of the written record in the transcript of the arraignment, so that exactly the same facts are here for this Court.

Well, it — it’s very simple when you have a charge that involves a death sentence, it says, you always have to have a counsel in this way.

The Court will be very simple to solve the whole problem by saying always, he must have a counsel if you have any crime (Inaudible) of any crime that’s also a sentence.

Herbert Monte Levy:

I — I might say no.

But there’s a — well, it’s never — never go to that extent, the state courts and —

Herbert Monte Levy:

No.

You —

They say you don’t even suggest that he should.

But when it comes to a mere question of appraisal of the situation that each person, how you’re going to improve on what you have now, is you look at all those circumstances.

Herbert Monte Levy:

Well, it — it would —

I’m not going to lose better to the (Inaudible) how the trial is going.

Herbert Monte Levy:

A —

So, it’s subject to change when he is open then obviously violated in a fair hearing.

Herbert Monte Levy:

Oh, I think actually this is that particular case where the trial judge has looked at all the facts and has announced the world constitutional doctrine based on those facts.

There isn’t any question of fact that’s before this Court where the trial judge may have weighed conflicting claims.

Two judges have done that.

Herbert Monte Levy:

The two judges have done what we considered to be announced wrong decisions on the Constitution based on facts.

As Pennsylvania courts, referring to Uveges and there’s in other cases.

I might say that in Uveges also, when you had exactly the same sort of situation as you had here, I believe, that is also a case brought before the same judge who would handle the matter.

And again, I think, that this Court has never hesitated to scrutinize records of anew when cases come up here for constitutional points that are myriad with decisions on that.

Your Honor —

Felix Frankfurter:

(Inaudible) that be.

Herbert Monte Levy:

All I’m thinking, Justice Frankfurter the —

Felix Frankfurter:

As you’ve stated it — I don’t know what it means.

Herbert Monte Levy:

Pardon?

Felix Frankfurter:

As you’ve stated it, I don’t know what it means.

Herbert Monte Levy:

Well —

Felix Frankfurter:

We don’t sit here de novo even in constitutional statements.

Herbert Monte Levy:

You don’t sit here, de novo but you do examine the facts of new with careful scrutiny.

This has happened in —

Felix Frankfurter:

I do not approve to that statement.

This Court has never so decided as you have said that it would not allow a lower court by claiming a finding of fact to conclude an inquiry in your constitutional claims.

We’re not the Supreme Court of Pennsylvania or the Court of Appeals of New York.

Herbert Monte Levy:

I — I would Your Honor, —

Felix Frankfurter:

As a matter of statement which is a very important one, it’s very easy to slip from your statement to — assuming that in a murder case, when we sit back under your Court of Appeals, we don’t.

Herbert Monte Levy:

But I think this Court has.

For example in confession cases, scrutinized the record very carefully and even upset convictions —

Felix Frankfurter:

I don’t know what that means except unless you stated as a legal proposition to that important thing, namely, it will not be foreclosed by the finding of a state court that a state of facts constitutes a voluntary confession.

Herbert Monte Levy:

That, I think, is a very —

Felix Frankfurter:

All right, that means —

Herbert Monte Levy:

That — that’s precise.

Thank you.

Felix Frankfurter:

That means something.

Your statement means the vagueness and ambiguity.

Herbert Monte Levy:

Thank you.

Thank you for the clarification.

I was asked before, I — I do want to close and give Mrs. Matson an opportunity, but I was asked before whether we contend that a person has an absolute right in every state criminal case to have counsel.

We don’t contend that, Your Honor, but what we do contend is that a person in every state criminal case should have the right to be told of his right to counsel, to whatever extent that maybe.

We so read Bute v. Illinois, since that was actually the narrow issue that was presented by the pleadings.

The Court in Watts and Turner and Harris, that were the three cases, indicated that the failure to advise a defendant of his right to counsel was one element in the picture.

And we take that this would be something a rule that could be applied as a thumb and that is a valid rule under the past decisions of this Court.

But again we — we do want to stress that this Court made no — go no further actually, if it want — if it wants to handle this case very simply and to right per curiam Uveges v. Pennsylvania.

Felix Frankfurter:

May I ask you what the law of Pennsylvania wholly apart from the requirement of our decisions, the (Inaudible)

Felix Frankfurter:

What is Pennsylvania law as to the assistance of counsel?

Herbert Monte Levy:

Pennsylvania law is that the assistance of counsel is required solely in capital cases.

Felix Frankfurter:

And in no other cases no matter what —

Herbert Monte Levy:

Am I correct on that?

I — I would prefer if Mrs. Matson could argue that.

Felix Frankfurter:

Oh, I thought she was arguing for (Inaudible)

Herbert Monte Levy:

She’s (Inaudible) Pennsylvanian.

Felix Frankfurter:

All right.

Yes.

But I thought she spent arguing in other courts, very well.

Herbert Monte Levy:

Yes.

Felix Frankfurter:

Right.

Herbert Monte Levy:

She could answer that one too.

Earl Warren:

Ms. Watson.

Ms. Matson, I beg you pardon.

Marjorie Hanson Matson:

If the Court please.

Since this question of Pennsylvania law on right to counsel in noncapital cases is currently before us, I’ll start with just a moment on that.

Our Appellate Courts, both the superior and Supreme Court have held that rather there’s no absolute right to counsel in Pennsylvania in noncapital cases.

If there are any special circumstances in which ingredients of unfairness appear, then the person has a right to have counsel.

And in several cases, that principle has — has been applied and there has been found to be a denial of the right of counsel.

On this other point before you, this is not the principle point because it becomes important only as it ties in with the question of the denial of counsel at the time of the taking of the plea.

That if in the point which have raise is in reference to the way in which this defendant was handled from the very moment that he was taken into custody.

The petition for the writ of habeas corpus alleges and it is not denied, that he was held incommunicado for 72 hours.

When it came to the allegations of the physical abuse or threats to himself and directed against his wife and child, the District Attorney’s Office denied that.

Their denial of course cannot under the decision in this case be given any particular effect because the Court announced the Pennsylvania rule very clearly here in its opinion when it said that, “If there has been no hearing then any allegation properly pleaded in the petition not be accepted as true.”

To see a great deal of — of this problem would have been removed here and we might not be here before you if the lower court has seen fit to grant a hearing in this case.

But I think that you will perhaps understand why we didn’t get a hearing when I refer to some of the time element involved here.

Our petition was filed on April to 30th of 1953.

It was not until June 16, that the Court saw fit to issue a rule to show cause and to require an answer to be filed.

Earl Warren:

What were those dates again please?

Earl Warren:

Your petition was filed with the —

Marjorie Hanson Matson:

April — April the 30th.

Earl Warren:

Yes.

Marjorie Hanson Matson:

And the rule was granted in June.

Earl Warren:

Oh, yes.

Marjorie Hanson Matson:

And an answer was filed by the District Attorney’s Office in August of that year.

And then we waited for a hearing to be set and nothing happened.

And finally, without even an opportunity for oral argument which was the very most clear cut violation of Pennsylvania practice.

The Judge decided this case and failed to notify me.

This is — is in the record but it was 18 days after he decided the case that they saw fit to give us any notice of that.

Then we took our appeal to the Superior Court at which time the — the Notary’s Office of Washington County, refused to accept the writ from the Pennsylvania Superior Court, they returned it.

This was a rather peculiar thing but the Washington County has a rule of Court, which says that the name of local counsel must be endorsed on every paper filed in their Court.

And local counsel’s name was not endorsed upon the writ of the Superior Court, so they sent it back.

It required an order from the judge in Washington County to get this on notary to accept the writ of certiorari from the Superior Court of Pennsylvania and transmit a record and — and that is referred to here in the record and not the printed record on there.

With this kind of an attitude in the lower court, you can see the practical problems which we confronted and which are confronted by many people down in Washington County, which happens to have a — a very bad record in — in respect to this.

They have a great many cases before the Superior Court involving very similar situations to that.

Now —

John M. Harlan:

Do you mean —

Marjorie Hanson Matson:

Here, with Stephen Herman, who was picked up, held incommunicado question —

Earl Warren:

Before you get to that Ms. Matson, may I ask you this.

I notice your petition was verified.

I noticed that the — the response of the District Attorney was not verified.

Is there any difference between a — a verified answer and a non-verified ones so far as it’s effect is concerned in Pennsylvania?

Marjorie Hanson Matson:

The rule would have — have required their application and I suppose we could have moved to strike the pleading on the ground if it not being verified.Perhaps, Mr. Zelt will be able to give some explanation as to why it was not.

But — since no hearing was granted, you see, it becomes more or less immaterial because the denial don’t count anyway under Pennsylvania law.

Earl Warren:

That is, it would have no greater legal effect if — if it had been verified?

Marjorie Hanson Matson:

Well, I wouldn’t want to go quite that far, I think, that it could have been stricken off for not being verified.

But since it was not, I think we can say that just if it had been so far as this Court is concern.

Earl Warren:

Yes.

Thank you.

Ms. — as I understood your statement of Pennsylvania law, the failure to appoint counsel or to advise of the right to counsel, is not a denial of due process in itself unless there are some unfair ingredients —

Marjorie Hanson Matson:

Yes, that’s right.

— in the picture.

Now, will you enumerate in fair — unfair ingredients here that you rely upon?

Marjorie Hanson Matson:

Yes, Your Honor.

We rely upon the following things as evidence of ingredient of — of unfairness entering into the process.

In the first place, like this man was only 21-years of age.

He had had only six years of formal education.

He had only been in trouble once before at which time he did not have counsel, it was not a trial.

It was a plea entered in exactly the same way as this one was entered in this case.

And therefore, he alleged that he had no knowledge of his right to — to have counsel.

When it came to the question of what he should do when he got up there in the courtroom having previously signed of what was called a “waiver of grand jury” agreeing to plea — plead to three offenses.

This was in fact at which he desperately needed counsel because he was suddenly confronted with eight indictments containing 27 counts.

He was not permitted to — to read these things or have been explained to him, first he signed.

Then he was brought up before the Court.

And this is the normal practice and there was nothing unusual in that in the way it is handled.

That is the plea was signed right there in the courtroom probably while another case was going on and that then, the defendant having signed would be brought before the bench to — to be disposed of.

In addition to these factors, the fact that he had been compelled to sign this confession back on September the 8th after three — after 72 hours of being held incommunicado and questioned, and assaulted, and threatened.

If — if Herman had been able to handle this situation if he’d had counsel, he would have known at the point when he got up there and found that he had entered a plea to 27 different offenses.

That this was the time to say, “No, Your Honor, I didn’t do these things.

I only did one of them and I pled guilty only because I signed the waiver rather in the confession because I was threatened and abused and mistreated.”

But he would have had to — to take that step there in the courtroom with State Police Officer James Wright at his right hand with a judge who was obviously angry over his being in there a second time, under circumstances where very few people of even superior intelligence would have enough courage to get up and say, “Everybody in this Courtroom except me is wrong and I want to tell you that judge before you send me away.”

Well, of course Herman didn’t do that.

The fact that once he had — had entered his plea that he was taken advantage of by the Court and — and this is a very serious charge that it seems to me that the things which we have pointed out indicate that.

The fact that the judge who had before him the record showing he had agreed to plea to three offenses then to sentence him on 27 offenses.

Why — why shouldn’t this judge have inquired as to this sudden multiplication of charges from — from three up to 27?

This was something which put the Court on — on inquiry, it seems to me, and the Court failed to — to make an inquiry and sentenced him on cases where it was obvious that no case could have been made out if this man had been put to trial.

So that all of these things constitute the ingredients of unfairness.

What — to what was the total sentence he might have given him on the three that he agreed to plead guilty to?

Marjorie Hanson Matson:

Well, there was burglary that was in 20 years.

Marjorie Hanson Matson:

He — he couldn’t have — he could have given him a longer sentence than he gave on — in this case because burglary is 20 years in Pennsylvania and that just — would be more than a 17 1/2.

Do you consider that harmful error, if it were error?

Marjorie Hanson Matson:

To have been sentenced on all of these different term counts?

Yes.

In lieu of the sentence that he got, would that had been harmful error in Pennsylvania?

Marjorie Hanson Matson:

Yes.

If — if a sentence is — is wrongly imposed, even if it had no additional time to the time that you have to serve, you have a right to — to relate against it.

We have Superior Court decisions squarely on that point.

Here, this — this judge here even sentenced him to the penitentiary for an attempt which — on which that is not permitted, gave him an indeterminate sentence before pretense which is — is not permitted on defense because no lawyer wasn’t at that time and now we have set all of these things were the ingredients of unfairness.

I should like to save our remaining —

Earl Warren:

Yes.

You —

Marjorie Hanson Matson:

— five minutes of time.

Earl Warren:

— may.

But may I ask just one more question here?

I noticed in your petition, you say that at this time the Assistant District Attorney Frank J. (Inaudible) demanded that defendant sign pleas to all laid indictments.

And when defendant asked what he was signing, the reply was, “Sign your name and forget it.”

That is not denied, is it or isn’t?

Marjorie Hanson Matson:

Well, I believe that is denied, yes.

But I say, it’s not in the record.

Of course, this kind of thing would never be in the record obviously.

John M. Harlan:

Well, it’s a sort of a weasel word of denial, isn’t it?

It is denied that the statement here made by the Assistant District Attorney in order to obtain pleas in the charges involved.

Earl Warren:

Exactly.

Felix Frankfurter:

If — isn’t that — before you sit down, aren’t you proposing to argue anymore than with this statement, the question of coerced statement?

Marjorie Hanson Matson:

Well, I had hoped to but we sort of got side tracked on —

Felix Frankfurter:

Why?

Marjorie Hanson Matson:

— these other points, sir.

Felix Frankfurter:

It seems to me, speak for myself too important to allow yourself (Inaudible)

Marjorie Hanson Matson:

Well, we — I — I have about five minutes, I’ll be glad to —

Felix Frankfurter:

Well, I’ll leave it to you, but unless you — I should think you’d have to do, your counsel report, do you have it with — on you?

Marjorie Hanson Matson:

Well, let me tell you this, that Your Honors that on the matter of the coerced confessions, it was — it had been very disturbing to some of us in Pennsylvania who are interested in civil liberty, that the Pennsylvania courts don’t like the decisions of — of this Court in the Watt, Turner, and Harris cases.And whenever they come up in — in any Pennsylvania case it is the dissenting opinion which is referred to.

The Superior Court which handles most of these cases because appeal in habeas corpus go to the Superior Court and you almost never are able to get the Supreme Court of Pennsylvania to allow (Inaudible) so that essentially, the Superior Court is the court of last resort and the one that passes on — on these things.

And they have said whatever may be the effect of the decision of the United States Supreme Court in Turner (Inaudible), we are bound by the decision of the Pennsylvania Supreme Court.

Now, that was their language, it’s quoted in our brief.

And they then proceed in — in most of the situations which has arisen to deny that holding, a part from incommunicado for as long as 15 days has anything to do with rather the confession was voluntary or not.

And they have — have in effect ignored the requirements of the decision in this respect.

Now, it isn’t vital to the decision of the Herman case, that Your Honors look into that point at all except that it may have some bearing upon whether there shouldn’t have been a hearing here to determine what the facts really were.

But it is present in Pennsylvania decisions and perhaps, they ought to have a little bit more respect for the decisions of this Court.

Felix Frankfurter:

May I ask you?

May I say that in respect to the Pennsylvania courts, I merely give a respect to venues but — but if the situation is as you’ve stated, it seems to be ought to be more important on the difficulty that it involves, press the point of this Court.

And so, in the nature of things, it isn’t our duty to pay respect to their decisions.

I suppose the relationship together may rhyme.

Marjorie Hanson Matson:

Well, Your Honor, as we have outlined this argument in the briefs so that it is before you and I’m sorry that we don’t have time to go into it further at this time.

Thank you.

Earl Warren:

Mr. Zelt.

Wray G. Zelt, Jr.:

May it please the Court.

A remark made by Your Honor referred me to my pencilled notes which — in which I said to remind myself that I thought that the ultimate goal of the petitioner in this case was to have this Court decide de novo something that had been previously decided by three courts in Pennsylvania.

And I think that same feeling was expressed in the Uveges case in the dissenting opinion by Mr. Justice Frankfurter, when he said, “After all, this is the nation’s ultimate judicial tribunal, not a super legal aid bureau.”

Earl Warren:

Well, Mr. Zelt, did — did this man have any hearing on his habeas corpus proceeding?

Wray G. Zelt, Jr.:

Not on the question of the truths or falsity of — of his allegations, Your Honor.

Earl Warren:

Well, what did he have the hearing on?

Wray G. Zelt, Jr.:

Well, he didn’t have a hearing of —

Didn’t have.

Wray G. Zelt, Jr.:

That — that’s correct.

Earl Warren:

And he had no hearing instead of having three courts decided as you’ve said a moment ago?

Wray G. Zelt, Jr.:

That’s correct, Your Honor.

Well, three courts decided on the question of whether or not there was this ingredient of unfairness on the record of the case.

See, the — the record of his plea and the attending circumstances were first and — and his petition for habeas corpus were first considered by the lower court.

Earl Warren:

Well, is habeas corpus limited in your state to the record?

Wray G. Zelt, Jr.:

If the — if the record in itself refutes the allegations of the petitioner — of the petitioner’s complaint.

Earl Warren:

Does the record in this case refute everything that it’s in the complaint?

Wray G. Zelt, Jr.:

By inference, I would say, Your Honor.

Earl Warren:

By inference?

Wray G. Zelt, Jr.:

If not — if not diametrically.

Earl Warren:

Well, take for instance the — the enforced confession.What is there that you can point to in the record that shows at that — that allegation is untrue?

Wray G. Zelt, Jr.:

Well, I call Your Honors attention to this.

That in the opinion of the lower court judge who sentenced him — sentenced this defendant.

Now, this is his opinion on the petition for habeas corpus, he makes the statement of fact pertaining to the record.

Now, the petitioner have not seen fit to incorporate this is a matter of record, but this is a statement of fact by the present judges, a common plea and I can assume that — that we can assume that he was telling the truth.

He would have no occasion to do otherwise.

In Pennsylvania, Your Honor, a criminal prosecution ordinarily is instituted by the filing of a — of an information in the office of the justice of the peace.

The defendant is — is brought before the justice of the peace at which time he can either plead guilt — guilty or not guilty.

He can demand a hearing or he can waive it to Court in most instances.

Now, on the same day, Your Honor, that this man was arrested, not 72 hours later as they would have to believe in this petition sets forth.

This man, a warrant was issued for him.

He was arrested and brought before the alderman and he demanded a hearing on each information and a hearing was held at that time on each information, witnesses were produced and defendant was also sworn admitting in each case the offense charged in the information whereupon he was committed.

In other words, counsel for the petitioner argue in here that he was choked into submission, that confession was forced out of him when actually, the criminal prosecution began in the normal orderly way in Pennsylvania and after a hearing before the justice of the peace.

John M. Harlan:

Did he have a lawyer before the justice of the peace?

Wray G. Zelt, Jr.:

I believe not, Your Honor.

Now —

Earl Warren:

Was he held incommunicado for 72 hours after that?

Wray G. Zelt, Jr.:

Well, he was put in jail.

I don’t — there’s nothing —

Earl Warren:

(Voice Overlap)

Wray G. Zelt, Jr.:

— in the record to show that he was held incommunicado except his own statement.

Earl Warren:

Was that —

Wray G. Zelt, Jr.:

He also makes a statement that friends and nobody came to visit him.

Well obviously, his wife didn’t come.

He had forged her name to seven checks.

Wray G. Zelt, Jr.:

You couldn’t — no one could expect her to be very anxious, the same so that — but the sentence of the Court was not until six or seven weeks after this took place.

The man was in the local jail.

The man had an opportunity to talk to — to fellow prisoners and it’s — it’s recalled that it — to this Court’s attention, that this man is a previous — had a previous conviction.

He was convicted incidentally for the same charges, burglary, larceny and forgery.

He received a very mild sentence.

I believe was six months to a year.

He had enough legal astuteness to obtain a parole which — which has to be done by petition so that the man did have experience in court.

Now, referring to the sentence, it seems to me that the — that the petitioner’s argument of what the sentence of more or less refutes their own — their own contention.

The minimum sentence under which this man could have been given was 157 years and he was given 17 1/2 years.

That scarcely bears out the statement by counsel that the judge was hostile and — and was unfair and unfriendly to this defendant.

I would like to call to the Court’s attention —

Earl Warren:

Didn’t your Supreme Court point out that even the time he has served is a rather abnormal time in Pennsylvania for a crime that does not involve violence?

Wray G. Zelt, Jr.:

Except to the fact that there are a number of them involuntary, yes.

Mr. Justice Woodside did say that and I would like to call to the Court’s attention, when the Court ask about what is the rule in Pennsylvania concerning counsel that in this instant case, Mr. Justice Woodside basis his — his opinion on the Uveges case.

In other words, this case is already been decided in a Superior Court of Pennsylvania on the basis of the Uveges case.

As a matter of fact on page 24 of the record, Mr. Justice Woodside quotes from the part of it where he says, “You, lack of education and experience with the intricacies of criminal procedure, improper conduct on the part of the court or prosecuting officials and a competent nature of the offense charged may in some combination constitute the ingredient of unfairness which renders the absence of counsel at sentencing a denial of due process.”

And following this Court’s own decision, Mr. Justice Woodside decided in this case for the second time that there was not that ingredient of unfairness.

Earl Warren:

How do you distinguish Uveges from this case on its facts?

Wray G. Zelt, Jr.:

On its facts, the Uveges case for example, the Uveges boy was younger than this boy, considerably younger when you consider how a person can mature from, let us say 16 to 19.

The sentence maximums — or the sentence impose in the Uveges case is greater than the sentence actually imposed in this case.

Earl Warren:

What was the sentence in the Uveges case?

Wray G. Zelt, Jr.:

I think, it was 20 years, if I’m — 20 to 40, it was 17 1/2 to — to 35 in this case but of course this case involved many crimes.

I don’t believe in the Uveges case that he had the opportunity to speak up for himself as he had in this case.

And I — I would like to — to just read two paragraphs —

Earl Warren:

Are those the only — are those the only facts that you distinguish two cases on?

Wray G. Zelt, Jr.:

Now, just a second, Your Honor.

I don’t think in the Uveges case, you have — that Uveges had the mentality that this defendant has.

There’s nothing —

Earl Warren:

Is there anything said in the Uveges case that he doesn’t have as much mentality as this boy?

Wray G. Zelt, Jr.:

No.

Wray G. Zelt, Jr.:

I — my recollection, it fails me on that, Your Honor.

There’s one of the cases, I thought it was the Uveges case where they brought up that question of his lack of — of mentality, I — I maybe mistaken.

But this boy had a grade school education.

Earl Warren:

How much — how much of a grade school?

Wray G. Zelt, Jr.:

Well, the — there seems to be different allegations, the — the Superior Court seems to find that he had a grammar school education.

The petitioner seems to say he had a six year grade school education.

Earl Warren:

Is there anything in the record to show that he did go beyond the six — sixth grade?

Wray G. Zelt, Jr.:

Only the statement by the Superior Court judges (Voice Overlap) —

Earl Warren:

Does that mean that he graduated from high —

Wray G. Zelt, Jr.:

Grammar School —

Earl Warren:

— or graduated from grammar school?

Wray G. Zelt, Jr.:

That would be my impression of it.

Earl Warren:

But that’s all, just because you said he had grammar school education.

Wray G. Zelt, Jr.:

That’s right, Your Honor.

Earl Warren:

All right.

Wray G. Zelt, Jr.:

I — I wouldn’t like to state it as a fact, something that was not — which had not —

Earl Warren:

Are there any other distinctions on the fact between these in Uveges?

Wray G. Zelt, Jr.:

I would say that the — as I recall that the — the time element between the arrest and the ultimate sentence was less in the Uveges case as I recall them.

In other words, this man have seven weeks to — in which to contemplate to secure counsel, to talk to his fellow prisoners or whatever he wanted to do within those seven weeks.

After all the — the last Uveges boy was — was a juvenile, as I recall.

But I would like to — to read the Court just the beginning of what took place when this defendant came before the bar to plead guilty.

The District Attorney and incidentally, I’m defending my predecessor, not myself, Your Honor.

If that please Your Honor, Stephen J. Herman of Washington is entering his plea of guilty to various indictments and counts drawn at Number 56, November term — 63, November term inclusive for the following offences.

I’m reading from page 10 of the record Your Honor.

I will try to take them in chronological order.

At Number 61, November term 1945, this defendant is charge with larceny involving three counts.

The first of an automobile, a 1939 Ford belonging to the Union Transfer Company of Waynesburg where he stole — where he stole, unlawfully took it at Brownsville in Washington County, the value of said automobile $950.

That took place on May 26 of this year, the second count in the same indictment at 61, November term, charges him with larceny at West Brownsville on August 5th of a 1941 Chevrolet automobile, bearing West Virginia registration plates of property of (Inaudible) of Morgantown West Virginia.

Now, to skip down, at Number 62, November term 1945 Stephen J. Herman — entering — is entering his plea to guilty of charge of burglary and larceny.

This involves a breaking in to on March 21st of 1945, Saint Patrick Church 6212 Greenside Avenue in Canonsburg, which is incidentally 40 miles away from the other places where he gained entrance to a rear window and broke into two — four boxes and from the one stole approximately $20 in cash and approximately $6 dollars in cash from the others.

Wray G. Zelt, Jr.:

He made his get away after he completed this burglary and larceny in a car that was stolen at Canonsburg.

Now, how can it be said, Your Honor, that anyone can stand in front of the bar of a Court, 21 years old and have with that particularity charges read to him and not say anything in his own defense if there was anything to say, protect —

Harold Burton:

Well, he did say something in his own — he did say something.He says, “I throw myself on the mercy of the Court.”

Wray G. Zelt, Jr.:

That’s right, Your Honor.

That’s all he said.

There was nothing said about being not guilty of those charges which were read to him in particularity.

Harold Burton:

And they were — all of them read page 3 — two or three more pages just like what you’ve just —

Wray G. Zelt, Jr.:

That’s correct.

I just read enough to — to make it clear to the Court that this wasn’t a question of taking this man up in front of the bar and just sentencing him without making him completely aware of what he was charged with.

The Court also, the record shows that this petitioner had been paroled from a previous defense of burglary, larceny, and forgery.

That in addition to these crimes he committed, he had also violated that parole.

We think, Your Honor, that the — Your Honors that the Courts of Pennsylvania are in complete accordance with the principles laid down in the Uveges case.

And that, as what this Court is being asked to do and what this Court will be asked to do in the future in these habeas corpus proceedings, is to review de novo the records contained and scrutinized by the lower court and the intermediate courts of Pennsylvania.

Now, there has been some mention of the Supreme Court having not passed on anything.

Felix Frankfurter:

Before you go on to that, Mr. District Attorney, how much — how much of a burden on your — might have tried in the courts, what — would it be if in a — in these — in a case like this, instead of dismissing out of hand, an experienced questioning judge should give a hearing and put these things on record as part of the Court, would really know the facts as chief of the forum et cetera, et cetera.

How much of a burden would that be on the administration of criminal justice in Pennsylvania for the matter to be dealt within that way instead of leading into this argumentative consideration, depending on what you can and cannot about different people with different (Inaudible) occupation infer or do not infer of the dead record.

Wray G. Zelt, Jr.:

I think Your Honor has got at the source of all this difficulty and that is that the ordinary small county in Pennsylvania or even the large counties that courts are so filled, so worked on criminal matters and particularly, its habeas corpuses that the practice has — has necessarily grown to be rather — rather lax.

I — I — however, to correct that would probably mean a reshuffling or recodification of a lot of the — of the criminal procedures in Pennsylvania.

Perhaps, the addition of new judges and court reporters, we have difficulty in the lower courts in getting Court reporters that are available for all these things.

As a matter fact, Your Honor, I don’t know whether I mentioned it or not, but I believed that there is in the Congress now or in a committee, a bill sponsored by the Department of Justice, the Federal Prosecutor time to make the — the question of the defense of criminals in federal courts either to safeguard the more or to make it more uniform.

And apparently, there’s a — there’s a difference of opinion among the people as represented by their Congressman because that bill as yet not pass Congress.

Felix Frankfurter:

May I suggest if I may, that this, your local procedure, what type of it.

It would say, and — and the decisions would rest on record that then would be — would create no difficulty here with difference of opinion.

It would take this on appeal into the federal courts even by way of habeas corpus, is that plenty in your Commonwealth as we — as I know or directly from the proceedings of the state courts.

Shortcuts in these matters are sometimes not shortcuts at all.

Wray G. Zelt, Jr.:

That — that’s right, Your Honor.

And — and in addition to what we’ve discussed, your old English method of proceeding through your justices of the peace and alderman which are not actually courts of record, at least all that not part of the record which would have a great deal of effect on the record.

As a matter of fact, in this case in order to show what had happened in the justice of peace office.

I had to rely on a statement made by the Common Pleas Court in his decision, so that the — the procedures are, let us say, antiquated and how would that probably can only be corrected by statute.

However, Your Honor I might further add that we’re deluged with habeas corpuses and the — it seems that every one in the penitentiary understand that for $2 you can get a writ of habeas corpus written for him and consequently we get them.

Wray G. Zelt, Jr.:

They all proceed in forma pauperis.

It’s a — creates an amazing amount of paperwork, not only for the various clerks and the District Attorney but also for the judges.

And if the judges seem to treat them perhaps more lightly than the federal courts treat them, it is because they are constantly confronted with cases that have no merit on the face of them whatsoever.

Felix Frankfurter:

The other side of if it is — the other side of this one reversal in this Court would stimulate hundreds of a habeas corpuses in your state courts and federal court.

Is that true?

Wray G. Zelt, Jr.:

Well —

Felix Frankfurter:

Once a fellow — every fellow takes his case as good as the fellow whose case is reversed, that’s true, isn’t it?

Wray G. Zelt, Jr.:

It’s been — Your Honor, its — if we wish to be practical about it, it’s been my thought that at sometime when a petition was presented, and I knew was — was false of having the hearing and possibly convicted petitioner forgery if he persisted in testifying towards one who was entirely contradicted by the record.

But I — I don’t know what the answer to it is except that, I think, its probably statutory Your Honor rather than be corrected by this Court because this Court shouldn’t be required to review case after case of habeas corpus.

Earl Warren:

Mr. Zelt, just — just assume for the sake of argument that all the — all the allegations in — in this petition are — are true, concerning the enforced confession and so forth.

How can this man ever raise them?

How can he ever have any remedy if your courts refuse to give him a hearing as was done in this case?

Wray G. Zelt, Jr.:

Well, he could — one thing, the Attorney General or Justice Woodside suggested was, of course, he could file a petition with the Pardon Board.

Earl Warren:

Oh well, that — that isn’t judicial proceeding, is it?

Wray G. Zelt, Jr.:

It is a judicial proceeding but (Voice Overlap) —

Earl Warren:

That’s clemency.

Wray G. Zelt, Jr.:

— raised — whether it raised the question Your Honor suggest.

Earl Warren:

But that’s clemency, isn’t it?

Wray G. Zelt, Jr.:

That’s correct.

Earl Warren:

Could distinguish from any judicial proceeding but — but how would he judicially?

How would a man ever get his remedy, if the courts refuse to give him a hearing on a petition of this crime such as was refused in here?

Wray G. Zelt, Jr.:

Well, he — he never would get a remedy, that’s a —

Earl Warren:

Pretty harsh, isn’t it?

Wray G. Zelt, Jr.:

I think Your Honor, that if the lower court, and I know we have held hearings that let us — the Court not in — take it for granted, that we hold no hearing in these cases.

Of course, we hold hearings and cases where the — the lower court feels there’s enough merit in the petition and on the record to warrant a hearing, but its only in the cases where they — they feel that a — a hearing is not justified that they don’t hold a hearing.

So, we’ve held many — many hearings even during my slight term of District Attorney, Your Honor so that they’ve — they — they — the Court takes the attitude of trying to separate the wheat from the shaft.

And if the petition on the record thinks they’ve made out a good case then the Court will grant that hearing.

Now, Your Honors will also understand that while there is a record the — there are many things that take place on this cases and are not actually a matter of record.

Of which the lower court had has knowledge of a lot of statements made perhaps and aren’t even part of the record.

So that the — we — when the case reaches this Court it’s on a very major record where the petitioners trying to take advantage of every discrepancy that can be found.

Wray G. Zelt, Jr.:

I might add while we’re on the subject —

Earl Warren:

Wouldn’t the hearing cure that?

Wray G. Zelt, Jr.:

Sir?

Earl Warren:

Wouldn’t a hearing cure that?

Wray G. Zelt, Jr.:

Yes.

A hearing would cure it, Your Honor.

But as I say if the Court doesn’t feel that the — that the hearing is a — is justified then the Court writes an opinion on the — on — on what he — on the record.

I’m — I might also add, and this is not prejudicial because this does not exist in this case that it’s amazing in how many of these belated petitions for habeas corpus that they coincide with the demise of some witness or that corner someone else.

However, I’ll say in all fairness that — that’s not true in this case.

Earl Warren:

Mr. Zelt, may I ask just one more question —

Wray G. Zelt, Jr.:

Certainly, sir.

Earl Warren:

— please in — and it is, what is the practice in your trial courts of the — of the judge advising a defendant as to asking him is — if he has counsel and advising him of his right to counsel.

Is there such a practice?

Wray G. Zelt, Jr.:

I — I will say this, Your Honor.

I’ve been District Attorney four years, and everybody has — has been offered the right to counsel.

Now, this took place before that.

I think that your Court decisions have gradually convinced the — the courts and District Attorneys of Pennsylvania that as a matter of self-protection that they — they should follow that procedure.

And I can assure you that they — they are provided with counsel at the present time.

Felix Frankfurter:

Mr. Zelt, may I ask you this?

What line of Pennsylvania (Inaudible) as misdemeanor, is that here?

Is that the length of a case?

Wray G. Zelt, Jr.:

Well, the — the line is rather theoretical rather than practical.

In other words, the law says certain crimes constitute felonies or felonies are triable in a court, and we call it a lawyer intermitter.

Misdemeanors are tried in a Court of Quarter Sessions and the — there are certain distinctions which — however, as I say are theoretical.

Felix Frankfurter:

Well, then would you turn to make my question to your practicality.

What I want to know is, your — in your experience as District Attorney, of the seriousness, it’s usually called it felony, serious offenses to be prosecuted.

In what percentages of the three was guilty as against going to trial, this doesn’t draw — draft it.

Wray G. Zelt, Jr.:

I hate to shock the Court, but I would say that 95% —

Felix Frankfurter:

I don’t think it will shock me.

Wray G. Zelt, Jr.:

I think 95%.

Felix Frankfurter:

Freed of guilty?

Wray G. Zelt, Jr.:

Particularly where the state police are involved.

Felix Frankfurter:

I — I think, if you think it will shock the Court, that’s — they — they run by that from 1885 to 1895 in — in Pennsylvania.

Wray G. Zelt, Jr.:

That’s right.

We — now —

Felix Frankfurter:

What was that — what is your trial law with serious offense a year?

Wray G. Zelt, Jr.:

We — we have four terms of grand jury a year where we dispose of any place from 150 to 200 cases which include most of misdemeanors and felony.

And I suppose that they fall by the waysides for one reason or the other, Your Honor.

But I would say that we probably don’t try over 25 cases a year.

Felix Frankfurter:

In Washington, a county of a population around what?

Wray G. Zelt, Jr.:

150,000 to 200,000 people.

(Inaudible)

Wray G. Zelt, Jr.:

Yes, sir.

We — we can bring it by information in front of a justice of the peace or we can — we can do it by a District Attorney’s bill.

However, it’s usually done by an — an information of the justice of the peace.

Has — has everybody any statute or ruling by the Supreme Court of Pennsylvania, requiring that after for habeas corpus to file affidavits to the correctness of his charges was sustained by other parties than himself, with his own affidavit and circumstances.

Wray G. Zelt, Jr.:

No.

And I think, Your Honor, that the talking about the subject we were that probably, if that were required, that might solve this problem of great extent.

Because after all what does a man sentenced to a long term in the penitentiary have to lose by signing an affidavit to anything.

Those matters been largely in the — it’s all of the states to what procedure to —

Wray G. Zelt, Jr.:

That’s right.

And as I say, that I think that it should be corrected by statute and the Court should not be put to the tremendous burden to which they’re put, both the federal and the state courts.

Thank you.

Felix Frankfurter:

Would you —

Earl Warren:

Thank you, Mr. Zelt.

Felix Frankfurter:

— say a word before you sit down —

Wray G. Zelt, Jr.:

Yes, sir.

Felix Frankfurter:

— about the expiration part of this (Inaudible)

Wray G. Zelt, Jr.:

About the what —

Felix Frankfurter:

According to our case.

Wray G. Zelt, Jr.:

I — I beg you pardon?

Felix Frankfurter:

Would you say a word, before you sit down, about the ground that they last urged namely that the confession was coerced?

Wray G. Zelt, Jr.:

About the 72-hour period?

Felix Frankfurter:

Yes.

Wray G. Zelt, Jr.:

Of course, you have the bare statement by the defendant that he was the petitioner, that he was incarcerated in the Washington County Jail and having — had a lot to do with the jail during past few years.

I don’t know why the placing him in the women’s quarters would make it any different from being in the men’s quarters.

However, I imagine that they did place — seem in a place which would give them time enough to investigate these matters to determine whether or not the information should be lodged or whether he should be released.

In other words, the state police probably had enough information upon which to — to lodge him on a warrant in the jail but in order to hold him before the justice of the peace, they probably made it sometime to corroborate the other matters.

That would the — the Supreme Court of the United — of — of Pennsylvania said that that isn’t an unreasonable time.

Of course, he admitted, did he not, he had admitted committing burglaries, felonies?

Wray G. Zelt, Jr.:

But nevertheless, the — the —

You mean in — in open court and the court had expressed in that way anything to say, why he’s on parole and the Court asked him about his own parole, he had committed other felonies and burglaries.

He said, yes, in an open court.

Wray G. Zelt, Jr.:

That’s correct, Your Honor.

That was after the confession as they point it out.

Wray G. Zelt, Jr.:

But the — the officers of Pennsylvania State Police would not prosecute the man or — or proceed before they first tried to get corroborating testimony because they — that prosecutor wants more than a mere confession.

You mean a hearing then would’ve possibly (Inaudible) testifying that being killed, and you denied that that I suppose the officer (Inaudible) in the record.

Wray G. Zelt, Jr.:

I think that — this answer which I didn’t personally prepare says that the — the Assistant District Attorney and my office after consulting with the state policeman who was alleged to have done it denies it on the ground that he didn’t do it.

Earl Warren:

Well, is that unverified answer have any legal effect in your procedure, Mr. Zelt?

Wray G. Zelt, Jr.:

I do not think so, Your Honor, because that being signed by an Assistant District Attorney, he is an officer of our Court, under our Court theory.

So, he would — he would not be in a — his words should be the same as having been verified by some layman.

Earl Warren:

Was Mr. Roney in — in the office at the time of this affair?

Wray G. Zelt, Jr.:

No.

No, no.

Of this sentence?

Earl Warren:

Yes.

Wray G. Zelt, Jr.:

Oh, no, Your Honor.

Earl Warren:

Well, then the things that he answered could not be of his own knowledge, could they?

Wray G. Zelt, Jr.:

No.

Only from a — only from knowledge which — which he had — had gathered from —

Earl Warren:

From his (Voice Overlap) —

Wray G. Zelt, Jr.:

— (Voice Overlap) and like he says, I believe, that he consulted that state policeman.

Earl Warren:

Yes.

He — he says he consulted them.

But for instance, he says here in answer to this — to the allegation that the Assistant District Attorney at the time of the plea told him to sign — sign the pleas, “Sign your name and forget it.”

Now, your answer — the answer of — of your Office is, it is denied that the statements were made by the Assistant District Attorney in order to obtain pleas to the charges involved.

Now, of course that’s no denial at all and then the second place, it would have to be hearsay with him, wouldn’t it?

That the — if it wasn’t done for that purpose.

Wray G. Zelt, Jr.:

The — That’s correct, Your Honor.

And I’ll — I’m reluctant to admit it was very poorly phrased.

Earl Warren:

Well, thank you.

Wray G. Zelt, Jr.:

Yes, sir.

Thank you.

Earl Warren:

Ms. Matson.

Marjorie Hanson Matson:

I wanted to have it be perfectly clear on this matter of the 72-hour detention that that occurred prior to September the 8th.

This is our position here that we we’re detained for 72 hours before the signing of the — of the waiver of which was on the same day as the hearing before the alderman.

Now, it is interesting to note that the District Attorney’s Office did not deny that.

Their answer here says, it is denied that the delay towards constitutional rights were denied because he was arrested and confined for a period of 72 hours.

This is not an unreasonable length of time.

In other words, I think that there check probably showed that he actually had been in there for 72 hours before the September 8th information were filed and that that’s why they deny — didn’t deny it.At any rate it wasn’t denied.

When was the trial in the court?

Marjorie Hanson Matson:

That was a month and half later.

It was six weeks and it —

He has been (Inaudible) to the judge if he had committed felonies, burglaries, did he not?

Marjorie Hanson Matson:

Well, Your Honor —

Open court.

Marjorie Hanson Matson:

— there he was having signed pleas being before the Court feeling bound down by the confession which he had given.

And certainly, feeling bound by the papers which he had signed there in open court and what was he was going to say when a judge said, “Did you do these things?”

At that point, his only answer must have been yes, unless, of course —

(Voice Overlap)

Marjorie Hanson Matson:

— he had had the courage to stand and up and say, “No.

I didn’t do any of these things, I said I did because I was beaten.”

And I don’t think you can accept a defendant an uncounseled defendant to — to do that.

Harold Burton:

You mean he couldn’t say that (Voice Overlap) —

The point on page 13, 14, 15 and 16 was not terms of question and answer of — or question by the judge, “Are you guilty?

It was sort of a, I might say, a consultation between he and the judge going, “Oh my, you did this.”

And that’s the (Inaudible)

Marjorie Hanson Matson:

The only —

What appeared to me here for example on page 16, he talks about — the court asked him if he secured a parole on the counts of good behavior and he said, yes, (Inaudible)

In the mean time, he committed (Inaudible)

These offenses, and many of them, I understand with the District Attorney with forgeries, and he answered there in open court, without anybody (Inaudible) him in there, and that I’m sure, a month and half out after that.

He said, “Yes, sir.”

Now, you want the Court to have mercy.

As a man, I’m being merciful, the Court said.

Marjorie Hanson Matson:

Well, you Your Honor this man stood up there before the — the judge.

He had just been told by the Assistant District Attorney in charge of the place, “Sign your name and forget it.”

Is he then, when the judge says that — that and you have committed this numerous offenses, is he to — at that point suddenly make resistance, this — this is expecting too much of him.

Earl Warren:

Was there any other point you wanted to make but didn’t have enough opportunity to make Ms. Matson?

Marjorie Hanson Matson:

Just — just this.

Mr. Zelt suggested that maybe this problem could be cured by statute.

A statute as already been passed.

The Act of 1951 in Pennsylvania provides definitely that there shall be a hearing when a rule has issued.

It’s — it’s absolutely clear so with the decision of the Pennsylvania Supreme Court in Commonwealth, Ex Rel. Elliott versus Baldi of 1953 case and yet the rights were flagrantly violated.

We don’t need — need a statute, we have one.

We just need someone to pay some attention to —

Felix Frankfurter:

Is there a reference to that statute in you brief?

Marjorie Hanson Matson:

I beg your pardon?

Felix Frankfurter:

Is there a reference to that statute in your brief?

Marjorie Hanson Matson:

I don’t believe there is.

Felix Frankfurter:

Just give me — just give me the year and I’ll look it up.

Marjorie Hanson Matson:

It’s the Act of May 25th 1951, P. L. 415, Sections 4 and 5.

(Inaudible)

Earl Warren:

To —

Marjorie Hanson Matson:

19 —

Felix Frankfurter:

(Inaudible)

Marjorie Hanson Matson:

The Act of 1951, P. L. 415.

Felix Frankfurter:

May 25th, you said, that you’re raising —

Marjorie Hanson Matson:

Yes.

May 25th.

Felix Frankfurter:

Thank you very much.

Marjorie Hanson Matson:

Sections 4 and 5.