Picard v. Connor

LOCATION: United States District Court for the Eastern District of Louisiana

DOCKET NO.: 70-96
DECIDED BY: Burger Court (1971-1972)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 404 US 270 (1971)
ARGUED: Nov 17, 1971
DECIDED: Dec 20, 1971

John J. Irwin, Jr. - for petitioner
James J. Twohig - for respondent

Facts of the case


Media for Picard v. Connor

Audio Transcription for Oral Argument - November 17, 1971 in Picard v. Connor

Warren E. Burger:

First in No. 96, Picard against Connor.

Mr. Irwin, you may proceed whenever you are ready.

John J. Irwin, Jr.:

Mr. Chief Justice and may it please the Court.

I would respectfully ask that five minutes of the time allotted to me for argument be reserved for a rebuttal.

This case is here on the Commonwealth’s petition for certiorari.

The Court of law found that a Massachusetts charging procedure that permitted a grand jury to indict with a fictitious name and permitted a Court thereafter to substitute a true name was in fact violative of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.

Warren E. Burger:

Is that the only issue in the case?

John J. Irwin, Jr.:

That to me is the overriding issue, the Commonwealth takes the position that in addition to the Equal Protection argument, there is also an exhaustion argument, and there is also a question of whether or not a purely state procedural Statute should be the subject matter of the review by way of a petition for a writ of habeas corpus.

But in answer to your question Mr. Chief Justice, I would say that the overriding argument that we want to make and stress upon the Court is the Equal Protection argument.

The Suffolk County grand jury and the Commonwealth of Massachusetts on August 4th 1965, returned a first degree murder indictment charging two people.

They charged, one Donald Landry, which in fact was a true name, and it also charged that a John Doe was also accused, guilty of the murder of one Robert Davis.

The defendant or the respondent here, James J. Connor, was later on August 9th 1965 on a motion under General Laws Chapter 277, Section 19, filed by the prosecutor was named on the Court docket as the true named defendant and the John Doe indictment was changed to read, James J. Connor.

The defendant seasonably objected to that on the ground that he had an absolute constitutional right to be indicted in his own name.

That as far as the record indicates was his sole basis for objection at that particular time.

That motion was directed to Chief Justice Tauro of the Massachusetts Superior Court, who is presently the Chief Justice of the Supreme Judicial Court of the Commonwealth of Massachusetts.

The Chief Justice was asked under the provisions of General Laws Chapter 277, Section 19 which reads as follows to make the substitution: "If the name of an accused person is unknown to the grand jury, he may be described by a fictitious name or by any other practicable description, with an allegation that his real name is unknown.

An indictment of the defendant by a fictitious or erroneous name shall not be ground for abatement; but if at any subsequent stage of the proceedings, his true name is discovered, it shall be entered on the record and may be used in the subsequent proceedings, with a reference to the fact that he was indicted by the name or description mentioned in the indictment."

William J. Brennan, Jr.:

Where are you reading from?

John J. Irwin, Jr.:

From the Commonwealth’s brief Mr. Justice Brennan, page 3.

William J. Brennan, Jr.:

--what I meant by that was is that a Statute or—

John J. Irwin, Jr.:

Yes, General Laws Chapter 277, Section 19.

William J. Brennan, Jr.:

Since I interrupted you, may I ask that the Court of Appeals by law, turned this on cases of -- I gather here, Supreme Judicial Court that indictments are amendable only with respect to matters of form and as to matters of substance as to minor details or other sense of formalities, is that the law?

John J. Irwin, Jr.:

Yes it is, if Your Honor please.

William J. Brennan, Jr.:

And does this thing turn on whether this amendment was an amendment in minor detail or in the sense of formality?

John J. Irwin, Jr.:

Well, we would suggest that this case does not necessarily turn on that issue in view of this particular statute.

I would suggest that those particular decisions return by direct themselves to matters other than the change of name.

If Your Honor please.

William J. Brennan, Jr.:

In other words, your position is that whatever maybe, by statute, indictments are also amendable in the particular that we have involved.

John J. Irwin, Jr.:

Right, in the fictitious name situation or an erroneous name situation.

William J. Brennan, Jr.:

Does the appellant present the issue whether that statute is Constitutional?