Pollard v. United States

PETITIONER:Pollard
RESPONDENT:United States
LOCATION:Congress

DOCKET NO.: 38
DECIDED BY:
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 352 US 354 (1957)
ARGUED: Dec 03, 1956
DECIDED: Feb 25, 1957

Facts of the case

Question

Audio Transcription for Oral Argument – December 03, 1956 in Pollard v. United States

Earl Warren:

Pollard, Petitioner, versus United States of America.

Mr. Boskey.

Bennett Boskey:

May it please the Court.

This case comes here via the United States Court of Appeals for the Eighth Circuit on writ of certiorari.

The Court of Appeals having declined to allow petitioner’s appeal in forma pauperis, this Court thereafter allowed certiorari in forma pauperis.

In the proceedings, in all courts below and at all stages prior to the case arriving in this Court, petitioner was not represented by counsel at anytime.

Counsel for the first time having been appointed after the case reached this Court and after certiorari was granted.

The fact that the case is here on these circumstances is an eloquent tribute to the American System of Justice.

But the circumstances which impelled the Court to bring the case here and the circumstances which are disclosed by this record are circumstances which show what a wide gap there can be between the standards which this Court has laid down for the administration of the criminal law and the manner in which those standards are carried out in actual practice in some of the District Courts of the United States.

Felix Frankfurter:

Sorry to interrupt you so early.

You’re not taking a point — making a point though but though, as you just said there was no (Inaudible) along the line you’re arguing, did I hear you?

Bennett Boskey:

Mr. Justice Frankfurter, I said that I think it’s relevant to some of the points I come to.

Felix Frankfurter:

You’re not making a point of that in substantive issues.

Bennett Boskey:

In my brief, I have referred to it but one of the times —

Felix Frankfurter:

But I want to know now in the arguments.

Bennett Boskey:

Yes, sir, I am.

Felix Frankfurter:

Well, I understand that being the case.

This is Johnson and Zerbst.

Are you making that point — let’s see if I’m off the problem.

And as I —

Bennett Boskey:

This is not —

Felix Frankfurter:

I’m just going to say there was no counsel at any stage in this case until you were assigned happily by the Court, is that right?

Bennett Boskey:

Whether happy or not, Your Honor, there were no counsel in this case until I was assigned by the Court.

The circumstances which this record discloses will show that counsel ought to have been assigned or else that other —

Felix Frankfurter:

My next question is, are you raising explicitly Johnson and Zerbst?

Bennett Boskey:

This case is not Johnson and Zerbst as such because —

Felix Frankfurter:

All right, I thought (Voice Overlap) —

Bennett Boskey:

— because petitioner knowingly pleaded guilty as I was just about to say.

No question is raised as to the propriety or validity of his plea of guilty.

This case doesn’t —

Felix Frankfurter:

None is raised as to the non-assignment of counsel into this position at any time up to this — up to the time you get here.

But I’m not saying (Voice Overlap) —

Bennett Boskey:

No, sir, I have not —

Felix Frankfurter:

— derivative arguments but you and I ought to understand each other, is this a Johnson and Zerbst situation?

Your answer is no.

Bennett Boskey:

No, I didn’t.

I said with respect to the plea of guilty, it is not a Johnson and Zerbst situation.

When we get to the question of what happened on the sentence, the absence of counsel seems to me relevant to the arguments I want to make here.

Now, Johnson and Zerbst was a —

Felix Frankfurter:

Well, Johnson and Zerbst are being decided by you?

Bennett Boskey:

No, because Johnson and Zerbst was a case in which counsel was absent at the time.

The — the conviction was entered.

Felix Frankfurter:

All right.

Well, I’m taking up — but I still don’t understand.Go on, you make it clear.

Bennett Boskey:

Well, the — the case arose in the District of Minnesota, in the United States District Court for the District of Minnesota.

The offense alleged was an offense under Section 1702 of the Criminal Code.

It was alleged and petitioner pleaded guilty to the allegation.

It was alleged that petitioner had taken from the United States mails a check, a Treasury check before the delivery to the owner thereof.

Petitioner having no counsel pleaded guilty.

His plea of guilty is not an issue.

The plea of guilty was entered before Judge Joyce of the United States District Court for the District of Minnesota in September of 1952.

And thereupon, the judge referred the case, in fact for a probation report.

Approximately three weeks later on October 3rd, 1952, the Court — the Court called the case up for sentence.

What happened at the sentencing proceeding on October 3rd, 1952 is vital to the issues in this case.

When the case was called, the United States Attorney said that the matter was here for sentencing.

The judge had a colloquy with the defendant.

And in the course of that colloquy as the record shows on pages 4 to 6 and as I’ve set forth in my brief in full on pages 7 and 9, as the record shows, the judge asked the defendant some questions about his history.

It turned out the defendant at the time the case came up to sentencing was in the Minnesota State Prison and still was serving a sentence and he was shortly due to come out for a parole.

The judge ascertained as apparently he had ascertained from the probation report that the petitioner have had an alcoholic history and this particular episode of taking the check from the Government — taking the government check from the mail had arisen during an alcoholic spree.

He called attention to the fact that the probation report showed that petitioner had voluntary brought this, the fact to this offense to the attention of Alcoholics Anonymous and then to the attention of the FBI.

Bennett Boskey:

The petitioner’s record in the Minnesota state penitentiary was a good record and he indicated that he had licked the alcohol problem and he said this appeal to him.

He said to the defendant the — that you ought to know the misery and the grief of continued drinking on your part and he gave him advice that the moment he got out of prison, he should go to Alcoholics Anonymous to do what they told them to do.

He said with your background and with your ability, I think that you can win this fight.

Then he said and I think this is the source of the great difference between myself and the Government in this case, then he said, “If you don’t do those things and if you want to revert to drinking, you will be back here again because you will commit some federal offense and I won’t be talking to you this way if you were ever before me again.

So, good luck to you and I hope the parole board will give you an opportunity.

That is all.”

And the defendant said, “Thank you very much, sir.”

And the defendant was taken in the courtroom and returned to the Minnesota state penitentiary.

Several months later, he was paroled.

Do you construe that as a dismissal of the indictment?

Bennett Boskey:

No, Mr. Justice Harlan, the construction that the — we placed on this for petitioner is that the judge made a final disposition of the case but the judge decided under the circumstances which had been brought to a detention that although the man was guilty of the offense.

Nevertheless, it was a case where neither imprisonment nor probation should be imposed and that so far as the federal authorities were concerned, the petitioner should be allowed to go from the Court a freeman.

And I point out in this connection, Mr. Justice Harlan, that the statute under which this offense was committed and under which the information was filed is a statute which does not provide for any minimum level of punishment.

Unlike many other federal criminal statutes which say that a man shall be sentenced to not less than so many years in jail or fine not less than so many dollars this statute does not say that.

The statute says that the punishment shall be not more than five years in jail or not more than $2000 fine or both.

But it leaves completely to the discretion of the judge the question whether some punishment should be imposed and if so, how much.

And it was in the exercise of that discretion as we look at this record.

It was in the exercise of that discretion that the judge sent this man out of court without committing him to jail and without fining.

In other words, you read that as authorizing in a disposition of the case which is neither dismissal nor a sentence which sort of living it up in the air?

Bennett Boskey:

Well, I believe —

At least, doing nothing, put it that way, doing nothing.

Bennett Boskey:

As we read the transcript, the judge didn’t do nothing but we think that the transcript shows the deliberate purpose on the part of the judge to impose no imprisonment and to impose no fund.

Now, as I say —

William J. Brennan, Jr.:

Why — why did he refer it to the parole board?

Bennett Boskey:

When he said the parole board, sir, he meant the parole board of the Minnesota state penitentiary where the petitioner was then incarcerated and where petitioner was coming up for release within the next month or two.

Tom C. Clark:

(Inaudible)

Bennett Boskey:

He said — he said, if — if you don’t do these things, he said Mr. Justice Clark, if you don’t this — do these things and if you want to revert to drinking, you will be back here again because you will commit some federal offense.

And that’s just the point we made.

If the judge did not say it because you will violate your probation.

We think it’s perfectly clear he had no intention to place this man on probation and that he was warning him against doing something else.

Felix Frankfurter:

This is the prophecy that in the effect a defense.

Bennett Boskey:

It was certainly a prophecy.

Now, later in the day after the defendant had been taken from the courtroom in an Ex parte manner, the United States Attorney for reasons best known to himself — excuse me, the Assistant United States Attorney for reasons best known to himself in which the Government says arose because he was uncertain as to the judge’s disposition of the case came before the judge and said that he we wanted to go —

(Inaudible) catch the word — I’m certain about the disposition of the case.

Bennett Boskey:

Which the judge had made of the case.

What —

Bennett Boskey:

He — yes, that’s the Government’s position that the United States —

The record shows that?

Bennett Boskey:

The record shows absolutely nothing as to what reason he had for coming back, except that he said, he did say I didn’t quite understand that clearly, Your Honor.

Because going back to the case of Pollard who appeared this morning, I didn’t quite understand that clearly.

Is there to be a probationary period after his release from Stillwater or any type of sentencing?

The Court then said it was to commence that the expiration of this release from Stillwater and said that the probation would last for three years.

Thereupon, and petitioner as the Government admits, he was not present during this interchange with the judge.

Thereupon, an order was entered in the records of the United States District Court from the District of Minnesota suspending or purporting to suspend the imposition of sentence and placing or purporting to place petitioner on probation for a period of three years.

Hugo L. Black:

Was a lawyer there?

Bennett Boskey:

Several — there was no lawyer there even, Mr. Justice Black, at that time.

The only person there so far as the transcript shows with the judge, the reporter and the Assistant of United States Attorney.

And the Government I might I say admits that this order entered in this manner was wholly invalid.

The Government admits that sentence cannot be passed upon a man in his absence.

There’s no disagreement between the Government and myself on that fact.

Hugo L. Black:

But what about in the absence of his counsel?

Bennett Boskey:

This man never had counsel.

Hugo L. Black:

But I say —

Bennett Boskey:

He was —

Hugo L. Black:

Do you say the Government admits they can’t do it that way?

Does the Government admit that they couldn’t do it in the absence of counsel?

Is there anything in Johnson and Zerbst that — that restricts the holding to the precise time when the man has evidence to being heard against the man?

Bennett Boskey:

Well, I would not have thought that if there has been a confident, intelligent waiver of counsel which this record does not show —

Hugo L. Black:

Yes.

Bennett Boskey:

— I would not have thought then that Johnston versus Zerbst would prevent the waiver from being effective at the time (Voice Overlap).

Hugo L. Black:

But supposed it does not show that, why would Johnson and Zerbst not apply?

Bennett Boskey:

If the record does not show that and if the absence of counsel, his work to the prejudice of the defendant then —

Felix Frankfurter:

Can you prove that?

Hugo L. Black:

Did Johnson and Zerbst say that?

It has to work to the prejudice of the defendant?

Bennett Boskey:

No, but I — I think now I’m coming back to the question Justice Frankfurter asked me a little earlier, at the initial hearing on the morning of the October 3rd, the manner — the disposition which the judge made of the case was a disposition essentially beneficial to the defendant as we look at the record.

If we are correct about the disposition that was made, the judge sent the man out of court free from any control —

Felix Frankfurter:

It begs the question.

Bennett Boskey:

Well —

Felix Frankfurter:

Beneficial or not, he doesn’t want the insignificancies.

Bennett Boskey:

Yes, sir.

But I say if we read the transcript properly, it was beneficial to the defendant and therefore, the absence of the counsel at that time I would think would not have been prejudicial to him.

He —

Felix Frankfurter:

But the fact that this has given rise to this issue, raises the very question that as I understand Johnson and Zerbst, the Johnson and Zerbst was partly directed toward it.

Bennett Boskey:

Well, the right —

Felix Frankfurter:

(Inaudible) out of this thing anyhow.

Bennett Boskey:

We certainly have them.

We — actually, petitioner has had two lawsuits out there.

Hugo L. Black:

You have a lawsuit out of something, the Court did in absence of counsel.

And Johnston and Zerbst unlike Betts and Brady as I recall it, is not limited, the cases in which they have prejudicial.

The Constitution says as the Court in that case, the man was entitled to a lawyer.

Bennett Boskey:

Well, the petitioner certainly has no disagreement with that and I hope the Government doesn’t either.

But the point I wanted to make whether the petitioner also feels he’s entitled to claim the benefit but the final disposition that was made of the case in his favor on the morning of October 3rd, 1952, whether counsel was present or not and whether he was advised to his right to have counsel assigned or not.

Nevertheless, there was a beneficial — as — as we look at the transcript, there was a beneficial disposition and we think that petitioner is entitled to the benefit.

Hugo L. Black:

Do you say then as I understand it that if he honestly, if he intelligently and knowingly waived not having had counsel there and because he gets a benefit, you’re claiming that part of Johnston and Zerbst.

Bennett Boskey:

I’m not disclaiming that part of Johnston and Zerbst, Mr. —

Hugo L. Black:

I’m (Voice Overlap) —

Bennett Boskey:

— Justice Black.

Hugo L. Black:

You think

Bennett Boskey:

I’m —

Hugo L. Black:

— you’d be asserting it if you’re saying that he could claim the benefit of this — what was done even though he had no counsel?

In other words, you — you’re relying in part there, I should suppose on the theory that a man although he has a constitutional right to counsel can waive it if he doesn’t knowingly and intelligently.

Bennett Boskey:

Precisely.

Felix Frankfurter:

Well, may I ask this myself that this so far as — I haven’t read your brief, I just looked at the table of the contents and authority.

I’m making sure that they don’t cite it in your reply brief (Inaudible), for myself, when if I may say so, competent a lawyer as you do not acknowledge Johnson and Zerbst.

Its intelligently waived for me.

Tom C. Clark:

When did he pleaded guilty?

Bennett Boskey:

He — he had pleaded guilty three weeks prior to the sentencing proceeding.

Tom C. Clark:

(Inaudible) the counsel there?

Bennett Boskey:

There is nothing to suggest that he did.

The transcript that has come up does not include anything that happened in the courtroom, if anything did on a day in which he pleaded guilty.

There is no showing that he waived counsel in.

Earl Warren:

Mr. Boskey did —

Bennett Boskey:

There is — excuse me.

Earl Warren:

Go — go right ahead and answer the question.

I thought you had finished.

Bennett Boskey:

Well, I was going to say there is in the order which was entered after the session on October 3, 1952.

If you’ll turn, Mr. Justice Clark, to page 6 of the transcript.

Tom C. Clark:

Yes.

Bennett Boskey:

There is what I would call a fictitious recital because it’s wholly rebutted by the transcript, by the actual transcript.

It says there at the bottom of the page referring to this October 3, 1952 hearing.

It says that —

Tom C. Clark:

Would that be — that’s the first hearing?

Bennett Boskey:

This —

Tom C. Clark:

Which is the 1952 —

Bennett Boskey:

October 3, 1952 is the hearing — the sentencing hearing.

Tom C. Clark:

The last — the last hearing.

Bennett Boskey:

No, sir.

The first sentencing hearing but three weeks after the plea of guilty was entered.

To those (Voice Overlap) —

Tom C. Clark:

(Voice Overlap) was not two years after.

Bennett Boskey:

No, sir, not two years.

This is the first hearing and there is this what I would call a fictitious entry in this order, so far as the transcript shows which says, “The Court advised the defendant of his right to counsel and asked him whether he desired to have counsel appointed by the Court and the defendant thereupon stated that he waived the right to the assistance of counsel.”

Now, I must say that the Court, that this is taken from a credit form or form of some sort, insertions have been made wholly without regard to the true stated facts as shown by the transcript.

And one of the points we have been making is that here, as well as that the hearing that occurred two years later, false and fictitious entries apparently have been made in orders of the District Court which make look as if the proceedings were in much more regular than in fact they were.

Tom C. Clark:

And you’re — you’re challenging the record?

Bennett Boskey:

I say sir that the transcript, the complete transcripts certified up here by the clerk of the District Court conclusively shows that this recital is untrue.

And when I get to the order that was added two years later, I’ll show the same thing with respect to that order —

Earl Warren:

The Government —

Bennett Boskey:

— if my time permits me.

Earl Warren:

The Government admits that’s untrue, doesn’t it Mr. Boskey?

Bennett Boskey:

I don’t think the Government has commented on this Mr. Chief Justice.

Earl Warren:

I will ask them.

William O. Douglas:

But you think it is — it is a fact that the defendant wasn’t present on October 3rd, is that right?

Bennett Boskey:

He was present on the morning sir and not in the afternoon when this —

William O. Douglas:

When this order was entered.

Bennett Boskey:

When this order was entered.

William O. Douglas:

That is conceded.

Bennett Boskey:

That is conceded and the Government concedes the order is invalid.

It admits that I — I think it admits that under the Due Process Clause, a man could not be sentenced while he isn’t present and I think it admits that under the federal rules of criminal procedure are part from the Due Process Clause.

A man could not be sentenced when he isn’t present.

Earl Warren:

Well, the Government admits that he wasn’t present when this order was — was announced by the judge.

It couldn’t be true, but it — but are possibly be true.

Bennett Boskey:

That’s right, sir.

Earl Warren:

May I ask this, just a matter of interest, Mr. Boskey?

Did the Government give any notice to him in the penitentiary that the state penitentiary that he had been placed on probation.

Bennett Boskey:

Well, I come to that now.

He says in his motion to vacate because this arises as you know under Section 2255 on a motion to vacate.

He says in his motion to vacate that when he was about to leave the Stillwater penitentiary to — in November, around Thanksgiving time, he was told —

Earl Warren:

Yes.

Bennett Boskey:

— that he ought to get in touch with the federal probation office and that he didn’t understand what this is was all about and none of the Minnesota state officials understood it.

But he says he got in touch with Mr. Lee, the probation officer, who convinced him, who told him for the first time that such an order had been entered, that he was on probation and that he was to — to report and he said Mr. Lee convinced him that the sentence was somehow rather legal.

Earl Warren:

But there was nothing in the record to show that the clerk sent him a notice of — of this order?

Bennett Boskey:

Nothing or whatsoever, sir.

Well, as a result of this chain of events for two years approximately, he was out on probation and under the surveillance with the probation officer.

He was then brought back into court for an alleged violation of probation.

Well, will you — before you go on, would you clear my mind on one thing.

Bennett Boskey:

Yes.

He was — he was released from the state prison?

Bennett Boskey:

Yes, sir.

And —

Bennett Boskey:

In November of 1952.

And was there a federal officer that had anything to do with that at least at that time?

What — what I have in mind is this, I understand that when a prisoner is in a state prison and there’s a federal crime charged against him that then that he’s held for the federal officers to come to get him.

Bennett Boskey:

As I understand his allegations and they seemed in this case to be correct and undisputed, he says that at the time he was to be released, he was told to get in touch with the federal probation officer, Mr. Lee.

He did so and thereupon his probation surveillance began and he kept —

He didn’t meet him at the gate or anything?

Bennett Boskey:

I’m not sure about that.

Well anyway —

Bennett Boskey:

The record doesn’t show.

— he got in touch with him?

Bennett Boskey:

Yes.

And there’s no doubt that for a period of two years, he regularly reported to the probation officer.

And he was arrested almost two full years later after the surveillance.

He was arrested for an alleged violation of probation.

In his motion to vacate, he says this was because of the excessive drinking.

Hugo L. Black:

Because of what?

Bennett Boskey:

Excessive drinking.

He came back before the judge in September of 1954.

And on that occasion, again, he had no counsel.

Bennett Boskey:

Again, the judge did not advise him that he had a right to have counsel appointed, although the United States Attorney did say to — to him, “You understand, you do have a right to counsel, don’t you?”

And he said “Yes.”

And then the United States Attorney said, “You understand — is it your desire to waive that right?”

He said, “Yes.”

Stanley Reed:

The record shows the Court advised the defendant his right to counsel.

Bennett Boskey:

If — if you’re reading from the Court order, Mr. Justice Reed, that’s what the court order says.

I say the transcript is oddly inconsistent with it and that’s a fictitious and false entry in the court order.

The transcript appears at page 11 of the record and I reproduce it at page 14 of my brief.

And this is just another one of those things that the Government in its brief.I think at page 18, it says, “It’s a technical irregularity.”

This case is full of technical irregularities including these false entries in the orders that had been entered by the clerk and the judge in this case.

Now, I spend a moment.

I don’t understand why they are inconsistent.

Bennett Boskey:

Well —

The transcript to proceedings on page 11 and the judge’s (Inaudible) on page 12.

Bennett Boskey:

The transcript of the proceedings on page 11 purports to be a complete transcript of what occurred on September 21, 1954.

The — the court reporter certificate at the bottom so state.

Now, comparing that transcript, putting it aside —

William J. Brennan, Jr.:

It says a true and correct copy of his original stenographic notes.

Bennett Boskey:

Yes, sir.

Now, putting that transcript side by side with the court order entered on page 12 —

William J. Brennan, Jr.:

What — what would make you think that Mr. Harwood would take down anything like the judge is talking there?

Bennett Boskey:

Well, if the stenographer doesn’t take down the advise given by the Court, if the judge gives it that — that the man is entitled to — to counsel.

And the question that the judge asks, if the judge asks it, whether the defendant desires to have a counsel appointed, it would seem to me that the system of reporting is entirely breaking — broken down.

Those questions are crucial under Johnson and Zerbst.

They’re crucial under the federal rules and if reporter is there to take down anything, I would assumed he’s there, certain to take down that.

William J. Brennan, Jr.:

Well, the questions however were asked by Mr. Evarts, the Assistant of United States Attorney.

Bennett Boskey:

Some questions, Mr. Justice Brennan —

William J. Brennan, Jr.:

(Inaudible)

Bennett Boskey:

— were asked.

But nobody advised the defendant that — or asked the defendant whether he desired to have counsel appointed by the Court and the recital to that affect in the order is false.

Do I understand you have a right to be represented by counsel?

Is it your desire to waive that right?

Bennett Boskey:

Yes, but nobody said to him at least of all the Court, that the Court would appoint counsel for him if he was unable to retain counsel.

Now, going down just a little bit further down the page, on page 12 of the record, there’s a another recital.

The Court having asked the defendant whether he has anything to say, why judgement should not be pronounced.

It’s perfectly clear from the transcripts that the Court did know such thing.

It’s perfectly clear from the transcript that somebody in the District of Minnesota is using a bunch of forms where they’re printed or typewritten or otherwise to make it appear, at least in this case, to make it appear the things that are going on in the District Court courtroom that never in fact occurred.

Earl Warren:

Then the statute give him a — give him a right to make a statement in litigation of punishment?

Bennett Boskey:

The federal rules of criminal procedure sure make that mandatory.

There’s a recent opinion cited in my brief with the Court of Appeals for the District of Columbia in the Couch case which traces the entire history of that right and says, it’s one of the most sacred rights known to the common law.

Apparently, in the District of Minnesota, it isn’t.

Are you suggesting that there was a deliberate effort here to misrepresent the record in the order?

Bennett Boskey:

I’m suggesting Mr. Justice Harlan, that I don’t know from this record whether it was inadvertent or deliberate.

I don’t know from this record whether it occurred once in the Pollard case, in this district or whether it occurs in dozens of cases.

I’m saying that it makes no difference whether it’s deliberate or inadvertent.

But if this was not the proper way, the criminal law to be administered and in fact if it’s a disgrace for the criminal law to be administered in this way.

And that if ever a case came along, it calls for this Court to exercise a supervisory jurisdiction and see to it that the law was carried out in accordance with the federal rules of criminal procedure.

This is such a case.

Now, —

Felix Frankfurter:

I want to know what I don’t.

You say this is a call.

This is predictable.

Bennett Boskey:

If you look at my brief, Mr. Justice Frankfurter, on page 15 in the Footnote 4.

Felix Frankfurter:

15?

Bennett Boskey:

15, in Footnote 4.

I have referred to one of the forms that was used here, criminal form No. 25D and if you will refer to the original record on file in this Court, you will find that that is a printed form.

Felix Frankfurter:

Also with reference to the lawyer?

You’ve read a little while ago.

You read it.

Bennett Boskey:

I read that —

Felix Frankfurter:

(Inaudible)

Bennett Boskey:

No, sir.

I think that was typed in on — in this particular case, I think it isn’t printed in, it was typed in.

Felix Frankfurter:

That was an individualized (Inaudible)

Bennett Boskey:

My recollection is that the original record shows it was typed in.

Felix Frankfurter:

Yes.

That’s what — that to me would — I would be entitled to (Inaudible) because that was an ad hoc petition and not —

Bennett Boskey:

It was — it appears to me it was somebody’s ad hoc petition.

Hugo L. Black:

Have you seen the original record?

Felix Frankfurter:

Well, I’ve seen what’s on file in this Court and that includes what the clerk said — the clerk of the District Court said it would be original.

Hugo L. Black:

Is — is that the original record?

It’ll be claimed what — that you say —

Bennett Boskey:

It appears to have been.

Hugo L. Black:

— it must have been printed.

Bennett Boskey:

It — yes, sir.

Hugo L. Black:

That’s here?

Bennett Boskey:

That’s here on the files of this Court from which this transcript was printed.

Well, in my brief, I have set forth —

Hugo L. Black:

That should mean it’s a certified record.

Bennett Boskey:

Yes, sir.

They appear to have certified up the original papers in this case.

I don’t know whether duplicates remain in Minnesota, but I think you have —

Hugo L. Black:

That forms have been sent out all over the country?

Bennett Boskey:

It appears to be printed for general distribution.

And it’s a form that obviously can make improperly handle the cases as appeared to be properly handled, unless there’s a transcript available to contradict the form as happened to occur in this case.

Now in my brief, I have explained why we think that if our interpretation of the record is correct, the Double Jeopardy Clause of the constitution stood as a bar for his sentence.

The Government doesn’t quarrel with our interpretation of the Double Jeopardy Clause and the applicability of Ex parte Lange, at least the Government doesn’t in its brief.

If we are correct about the proper interpretation on what happened on the morning of October 3, 1952.

Similarly, I think the Government has not in its brief quarrels with the proposition that if we’re correct that on the morning of October 3, 1952, the judge met to make a final disposition of the case then it would violate the Due Process Clause for a sentence to have been imposed on this man two years later.

Felix Frankfurter:

You wouldn’t have to bother about that, (Inaudible) that can be dispose off for a reason.

Felix Frankfurter:

I’m right about your construction that you don’t have to reach those improper clauses?

Bennett Boskey:

Well, it’s comforting —

Felix Frankfurter:

This was the final disposition used.

Bennett Boskey:

It’s comforting to know that the Due Process Clause is there to protect people against circumstances of this kind.

Felix Frankfurter:

But there’s a specific provisions in the constitutional law before you get to confirm.

Bennett Boskey:

Yes, indeed, I think you’re — I see my time has expired.

Earl Warren:

Mr Boskey, would you discuss for a moment the — the question of a speedy trial?

Bennett Boskey:

I shall indeed.

The Government says in its brief that if I’m wrong about what happened on October 3, 1952 and they think I am wrong.

Then this case should be judged in the following light.

The case should be looked at as if nothing really happened on October 3, 1952.

The order added was nullity and the case was just left hanging in suspense for two years until Mr. Pollard was brought back in for violation of probation and then a sentence of two years imprisonment was imposed upon.

Now, among the ways in which the petitioner deals with that question has been to say that a delay otherwise unjustifiable.

A delay of two years, approximately two full years, from the time of plea of guilty to the time of imposition of sentence, it’s wholly unreasonable and goes beyond the limits permitted either by the federal rules which required that sentence shall be imposed without unreasonable delay or by the Speedy Trial Clause of the Constitution.

In order to make the latter argument which is a constitutional argument, it’s necessary to come to the conclusion that the sentencing portion of the criminal proceeding is in fact part of a trial within the meaning of the speedy trial guarantee.

And we say in the brief that our position on that is (Inaudible) by two things.

First, what we know about the great purpose of the speedy trial provision which is largely to protect defendants from being subjected to vexatious and oppressive delays by what an old decision calls the Ministers of Justice.

So, we say the purpose is in favor of that instruction.

In addition, we say that the text is in favor of that instruction and the example that I’ve used in the brief is this, the phrase in the Constitution is a phrase referring to speedy and public trial.

We say that the word trial when interpreted with reference to the word speedy, obviously must have the same meaning as the word trial when interpreted with reference with the word public, since the two adjectives both immediately proceed the same noun.

We say that if a judge, if a federal judge were to sentence a man in a secret session, even though the trial had been held in open session that that secret sentencing would violate the public trial provision of the Constitution and that it would violate it because the word trial textually includes the sentencing portion of the proceeding.

For the same reason, we say that the word speedy when we are using the word — the phrase speedy trial, we say that the word speedy trial include the sentencing portion of the proceeding.

And as to the one case the Government relies on to the — apparently which the Government looks to or held in the other direction, namely, Miller and Aderhold, I think in 288 U.S., we say that there were several distinguishing circumstances that make it inapplicable here.

One is that the length of time involved was considerably shorter, namely, the lapse of time between the time of sentence — between the time of conviction and the time of sentence was only six months.

Two, we say also that in that case and possibly for the very reason I have just given, no question was raised by the defendant as to the Speedy Trial Clause.

Now obviously, these are matters of degree.

Some period of time would not be long enough to get into a problem under the Speedy Trial Clause or this will be certainly long enough.

And we say that the two years for the last year when the fault was wholly resting upon both the Government and the U.S. Attorney and not upon petitioner, we say that those two years made it too long and that the just disposition of the case when petitioner was brought back to court on September of 1954 would have been to enter the order we asked to be entered now, namely, an order that the Court should not have made any sentence imposed any sentence in September of 1954.

And that that order is important to petitioner because as this Court has held in the Morgan and Fiswick cases, future civil rights may be affected and subsequent punishments in the event with a future crime may be lengthier if this sentencing order is to stand even though petitioner has now served the sentence.

I’ve been reading this petition for certiorari and perhaps I’m mistaken in my impression, you correct me.

But I get the impression that this man knew well before the two-year period that his sentence was illegal and that he thought he’d be well advised to let matters stand and not stir things up.

Bennett Boskey:

His motion to vacate, Mr. Justice Harlan, alleges something not quite that.

It alleges that he knew —

Here’s what I’m referring to, I’ll read it to you.

Mr. Lee was the probation man I suppose, isn’t he?

Bennett Boskey:

Yes, sir.

He told him that he was right on summarizing nullity.

He’d investigated then he found his sentence was illegal.

And then he goes on in, this — this respondent — the petitioner goes on and says Mr. Lee — a further conversation and Mr. Lee at this time, and that was about a year before the second sentence was imposed, led me to believe that it would not be wise to pursue the matter further.

Being unlearned at law, I had no knowledge as to what further complication there could or might have become involved here.

Bennett Boskey:

Yes, sir, an allegation of that character is also in the motion to vacate at page 14 of the record.

Yes.

Bennett Boskey:

It’s preceded by a paragraph in which he tells about his initial conversation with Mr. Lee when he first got out of Stillwater.

And he says that at that time — he said that Mr. Lee undertook to and succeeded in convincing petitioner with the sentence of three years probation was legal.

Petitioner’s being unversed in law in desiring to be cooperative in every respect tells at that time that he was forced to accept Mr. Lee’s explanation.

That’s what the record shows in his motion to vacate.

And then it deals with this other episode a year later to which you’ve just referred to.

Earl Warren:

Thank you Mr. Boskey.

Mr Elman.

Philip Elman:

May it please the Court.

Let me say at once that the Government does not regard proceedings in this case as a model in the administration of the criminal law.

What happened in this case was unfortunate and regrettable and to the extent that any responsibility for what happened here rests upon the United States Attorney, busy though he may have been with other matters failing — failing to call to the judges’ attention that he had neglected to impose sentence on Mr. Pollard.

Earl Warren:

Does the Government —

Philip Elman:

I —

Earl Warren:

What’s the Government’s view on whether this was a fair proceeding or not so far as this defendant is concerned?

Philip Elman:

So far as — so far as — let me make it perfectly clear, Mr. Chief Justice, that if the Government believe that they sentence is as Mr. Boskey has charged in his brief that here, the victim of a deliberate, disgraceful, oppressive, arbitrary, unfair combination of actions, I would be here to confess adversary.

Earl Warren:

Well, let’s do that on those adjectives and just say do you — do you think so far as this proceeding is concerned or does the Government feel so far as this proceeding is concerned that it was a — a fair proceeding insofar as this defendant was concerned and so far as any future defendants are — are concerned in the event we sustain the action of the Government here.

Philip Elman:

The Government’s position here is that the events that took place in the District Court on October 3rd, 1952 were invalid.

They were defective.

It was not a lawful sentence that was imposed at that time.

Philip Elman:

We concede error as to that aspect of the case.

But what —

Earl Warren:

(Voice Overlap) that reaches the question of fairness, I mean.

Because you’re — you’re going to turn right around now as I understand it and defend this — defend this record.

Then I — I’d like to know as long as you’re admitting the illegality of these proceedings, whether you — whether you are also of a mind that it is — is unfair or whether you contend that this man did have a fair trial or fair proceeding that this Court should sustain.

Philip Elman:

Well, I don’t wish — I don’t wish to — to quibble about the word fairness because I think fairness involves the making of a moral judgement as to all the parties concerned including the judge, the Government officials, the clerk as well as the defendant.

Now, I — I will certainly recognize — certainly admit.

I am not trying to — to view in anyway to resist any characterization adverse to the Government as to what happened here.

But I — I do think in fairness to the judge who is the key figure in this episode in the case.

Earl Warren:

No, I think — I think the key problem here is whether there’s been fairness to the defendant not to the judge.

That’s — that’s what we’re talking about here.

Philip Elman:

Well, I — I would — I would be willing to assume that what happened on the initial hearing was unfair to the defendant in a sense that the sentence that was imposed upon him was illegal and that the procedures that attended that imposition of sentence were not in compliance with the requirements of law.

I — I — well, that — that’s the starting point in this case but the precise issue which is before Your Honor is whether the sentence that was imposed on Mr. Pollard on September 21st, 1954, almost two years later, was a valid sentence.

Now, Mr. Boskey does not argue that the irregularities, the failure to comply with the rules, the absence of the defendant from the courtroom when the probation sentence was imposed, the absence of a lawyer then, he does argue that those defects, those invalidities, those irregularities, those instance of unfairness, if one chooses to call them that, vitiate the judgement of 1954.

His argument is that what happened on the morning of October 3rd, 1952, prior to the United States Attorney’s raising the question of the sentence, his argument is not that the judge forgot to impose sentence to an oversight or for someone other reason.

His argument is that the judge made a final conclusive definitive disposition of the case about —

Earl Warren:

(Voice Overlap) —

Philip Elman:

— that he imposed the sentence in that time.

Earl Warren:

What is there — what is there in that — in the language that — of the judge at that time to disprove that contention of Mr. Boskey’s?

Could you point it out for me please?

Take his language and — and see if there’s anything in there that would disprove that contention of Mr. Boskey.

Philip Elman:

May I — may I put the matter in some perspective, sir?

Earl Warren:

All right.

Philip Elman:

Mr. Pollard had pleaded guilty on September 8th, 1952, three weeks earlier.

The matter was referred to the probation order so that a preparation — for investigation and for the preparation of a pre-sentencing report.

The morning of October 3rd, 1952, the matters — one of several coming before the judge that morning, the matter comes up before Judge Joyce.

Judge Joyce was an experienced federal judge.

He’d been appointed to the District Court in 1932.

He had imposed literally thousands of sentences, I’m sure, in his career on the bench.

The defendant at no time in that colloquy withdrew his plea of guilty.

Philip Elman:

There was nothing that Judge — Judge Joyce said that implied that — that the judge intended to acquit the defendant.

Mr. Boskey argues that this is a final disposition of the case that — that it is the sentence.

Now, the — the federal rules of criminal procedure required that the sentence constitute an adjudication.

On the petitioner’s view, this is an adjudication of guilt or is an adjudication of innocence.

The judge doesn’t say.Presumably, this is — he — this is a judgement of conviction that on the petitioner’s view, the judge was — was convicting that — that the defendant was accepting the plea of guilty but he was saying to the defendant go and sin no more.

There would be no penalty, no fine, no imprisonment, no probation, no penalty of any kind.

And it’s argued that that was within the judges lawful power to make such a disposition of the sentence or disposition of the case.

And that, on the petitioner’s view, when the United States Attorney an hour or two later —

Earl Warren:

Well let’s — let’s stay with that for just a moment.

Now, what is there in the record in the Court that morning to indicate anything contrary to the position of the petitioner herein?

Philip Elman:

Well, certainly, —

Earl Warren:

What — what can you point to — what can you point to in the record to show that that wasn’t the intention of the judge?

Philip Elman:

Our position is that the intention of the judge was not clear.

Our position is that the judge made an unequivocal, uncertain, incomplete disposition of the case so that the burden is not on us to show that he made a — a definitive disposition of the case at that time.

The burden is on the petitioner.

Earl Warren:

Well, —

Philip Elman:

And our suggestion is, sir, that the — that the judge in saying to the defendant, don’t get in trouble anymore, don’t come back here again, that is all.

But that was an incomplete disposition of the case because the judge had failed to impose sentence.

Now, it — it would have been a most unprecedented thing for a federal judge accepting a plea of guilty, convicting a defendant to say or to hold that he would not impose any — any restraint at all on the defendant.

Not impose probation would release him without any strings attached completely without — we’ve — we’ve been unable to discover any instance in — in the federal law in which any federal judge has made such a disposition as its certain was made in this case ordinarily where a judge is satisfied that the defendant has sufficiently atone for — for his offense.

The judge will impose some kind nominal sentence such as a dollar fine or an hour probation or something of the sort.

Now, there’s — at least —

Earl Warren:

But the fact that it wasn’t done in any — in other instances —

Philip Elman:

It’s not conclusive here at all, no.

No, but what I’m — the issue in this case as it’s opposed is a very narrow one.

And Mr. — Mr. Boskey recognized that it’s — it’s a simple one of interpreting what happened when the defendant was before Judge Joyce on the morning of October 3rd and it’s a question of interpreting the record.

Now, his —

Earl Warren:

Now, why don’t you read — why don’t you read what he said to us and that’s very — it’s very short and —

Philip Elman:

All right.

Earl Warren:

— it’s very simple and very plain to me.

Earl Warren:

I thought that the extent of his order — suppose you read it.

It’s only half page (Inaudible)

Philip Elman:

Well, it’s two pages.

Earl Warren:

(Voice Overlap) —

Philip Elman:

It start — it starts on page 4, middle of the page and it goes on at the top of page 6.

Earl Warren:

Well, I don’t care for all of it, but if there’s anything there — in there that would indicate that he wasn’t finished with the case at that time.

I’d like to — I’d like to have it read.

Philip Elman:

I — I don’t think there’s anything that I can point to that says —

Earl Warren:

All right.

Philip Elman:

— he is not finished with the case.

Earl Warren:

All right.

Philip Elman:

I think the judge thought —

Earl Warren:

Now, (Voice Overlap) —

Philip Elman:

— the case was finished as far as he was concerned if Mr. Pollard behaved himself and didn’t come back to — to his courtroom.

Now, that leaves — open the question whether the judge intended to make a disposition of the case so complete that he deprived himself of the power which he purported to exercise within an hour or so of putting this man on probation.

Now, is it conceivable — is it conceivable that — that Judge Joyce would have taken an action which is unique, unprecedented as to which there is at least a serious question as to his power to do or to make a disposition of the case by — by releasing a — a defendant and telling him to — to go without any strings attached?

Is it conceivable an experienced federal judge would have done that, would have taken such an extraordinary action without at least explaining why he was taking it?

Is it conceivable that within a matter of an hour or two at the most, he would completely reverse himself to say I’m putting a man on probation without explaining why he was reversing himself?

Earl Warren:

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

I don’t know what pressures were applied to him in the meantime.

I don’t know what the United States Attorney said to him.

I don’t know what the newspapers might have said to him.

I don’t know what anybody might have said to him that caused him to — caused him to have that change of heart.

But one thing I do know, he didn’t even notify the defendant that he put him on probation.

Philip Elman:

Oh, sir, this — this case comes out —

Felix Frankfurter:

That’s the question in the case, whether he did or didn’t on the circumstance of the situation.

Earl Warren:

No, I don’t think it is.

Philip Elman:

No, since — since the Government conceded that the probation order was illegal since the defendant was in the courtroom —

Earl Warren:

Sure.

Philip Elman:

— we, this case, it has — it has comes here — comes here on — on the record which particularly meager since there was no hearing.

Felix Frankfurter:

But isn’t (Inaudible) —

Philip Elman:

The —

Felix Frankfurter:

— question in this case whether what Judge Joyce did was final, definitive so that he was functus officio.

That’s the question, isn’t it?

Philip Elman:

That’s precisely the question.

Now, if the petitioner is right as to that, he’s right as to everything else whether if — if the — if the judge made a final, definitive, complete disposition of the case when Mr. Pollard was in the courtroom, it doesn’t make any difference whether what he did afterwards was legal or illegal.

He was through with the case.

He had imposed sentence.

Earl Warren:

Now, can I —

Philip Elman:

So that’s the issue to which the petition for certiorari and the brief of — of Mr. Boskey were addressed.

Now, none would like to respond to it by saying as a matter of interpretation of the record.

Earl Warren:

Well, now let me —

Philip Elman:

It is —

Earl Warren:

— ask you this.

You — your position is that the definitive action was taken two years later in the courtroom.

Philip Elman:

There’s no — there’s no question — it was a definitive action.

The question as whether it was legal or whether it was illegal.

Earl Warren:

Well, if that’s your position —

Philip Elman:

Yes.

Earl Warren:

— and it was definitive and that it was legal.

Suppose instead of being two years, it had been 20 years.

Philip Elman:

It would have been clear.

I — I — we would not be defending that.

Earl Warren:

Suppose it was 10?

Philip Elman:

Well, I — I think that if there were any — at any period after the expiration of three-year probationary period, there would be — there would be a very serious question as to whether the defendant hadn’t already served the sentence even though it was an illegal sentence —

Earl Warren:

Why do you say three years?

Philip Elman:

Well, because the judge had purported to put him on probation for three years.Now —

Earl Warren:

Well, I know, but he only did that after the two-year lapse.

Suppose — suppose it’s set on five years.

Philip Elman:

No, no, this is — no, sir.

Philip Elman:

I beg you pardon, sir.

The original probation order of October 3rd, 1952 was that —

Earl Warren:

You admit that that’s — that’s totally ineffective, that it’s totally illegal and you —

Philip Elman:

Yes, but —

Earl Warren:

— can’t refer — you can’t refer back to that as I see it to support your — your — any conclusion so far as the — the order two years later is concerned.

Felix Frankfurter:

But you can infer (Inaudible) in order to show the judges’ mind.

Earl Warren:

His mind didn’t amount anything after he’d — after he’d excuse the defendant and had purported to — to dispose of the case because (Voice Overlap) —

Philip Elman:

Well, Mr. Chief Justice, you — you were focused —

Felix Frankfurter:

Well, that’s the question when they did dispose of the case.

Earl Warren:

The law says that the — the defendant is entitled to be present whenever he is sentenced and whenever the judge takes–

Philip Elman:

He was.

Earl Warren:

— any action against him.

This man was not present.

He had been released by the — by the Court with the statement, you go back and — and do — do the best you can.

That’s all.

Philip Elman:

We don’t disagree with the word you said Mr. Chief Justice.

What happened on October 3rd, 1952 was illegal.

But the law is also clear that when there’s an illegal sentence, that doesn’t mean the defendant goes free and he’s not to be punished.

The law is well sound that an illegal sentence can be corrected.

And Rule 35 of the federal rules of criminal procedures says that in — in haec verba that the Court may correct an illegal sentence at anytime.

This Court held in the case — the leading case of Miller against Aderhold and it was — it’s been applied many times.

The most recent one was in the Bozza case in 330 U.S. in which Mr. Justice Black wrote for the Court.

The principle is well sound that if the defect is one, which — which is susceptible of correction, it can be corrected thereafter.

Now, I agree that — that circumstances may be such in a particular case that would be unfair, unjust and prejudicial to the defendant to bring him back years after the event in the post — illegal sentence on him simply because there was an illegal prior sentence.

The defects may be one which he can waive or that — or that the intervening circumstances may — may make it unfair and unjust with post-sentence.

But in this case, the — the hardship under which Mr. Harwood labored for — for a period of two years was that he was under probation, an illegal probation order.

The only condition of which was the — to conduct himself as a law abiding industrious citizen.

Now, what the judge —

Earl Warren:

Now, where were the terms — what terms of probation did the — did the judge laid down even in — in October of 1954?

Philip Elman:

That’s something —

Earl Warren:

What — what terms?

Philip Elman:

October 1952, sir.

Earl Warren:

Yes.

Philip Elman:

That’s page 7 of the record.

Earl Warren:

Yes.

So, either time.

What — what were the terms of probation?

Philip Elman:

The — the terms of — it is further ordered that during the period of probation, the defendant shall conduct himself as a law abiding industrious citizen and observe such conditions of probation as the Court may prescribe.

The Court did not prescribe any others.

So that was — that was the — the hardship.

Earl Warren:

That was the illegal act of the judge.

Philip Elman:

That was the illegal act of the judge.

Now, the question is by reason of that illegality, did he deprive the Court, not merely himself, but did he deprive a federal court of the power which had normally possesses to correct an error of sentencing?

Was — was this probationary order which the defendant knew about, he says several times, not only in petition for certiorari but in his 2255 motion is in forma pauperis motion.

He knew about that.

He talked it over with the probation officer and he decided it was in his best interest to let sleeping dogs lie and not to raise the question.

Had he raised the question immediately, the day he left the states prison, if he had — if he had gone back to Federal District Court and said, “But Judge Joyce, this probationary order is invalid for reasons A, B, C and D.”

Earl Warren:

He didn’t know about that probation order the day it was rendered.

There’s nothing in this record to show that.

Philip Elman:

On —

Earl Warren:

Is there?

Philip Elman:

Yes, sir.

On page —

Earl Warren:

Where?

Philip Elman:

Not on the day that he was — it was surrounded by (Inaudible) in prison.

Earl Warren:

That’s what you were — that’s the burden you were putting on him.

Just now, you said that if he had gone back that same day and had —

Philip Elman:

No, on the day he was released from prison which was November 26, 1952, less than two months later.

Earl Warren:

Oh, that day.

Philip Elman:

If he had come back in November 1952, the District Judge, no one would be arguing seriously that that — it was such a lapse of time.

Earl Warren:

Well, in response to what should he have gone back to the District Judge?1

Philip Elman:

We don’t —

Earl Warren:

Was there any order of the Court, or any notice to him?

Philip Elman:

We don’t think he should have gone back.

Mr. Chief Justice, we don’t think he should have gone back to the District Court.

All we’re saying is that he — that — that the District Court’s power to correct the sentence can hardly be deemed to have been lost by reason of this expiration of time, this two period, for which Mr. Pollard himself can — can take some degree of responsibility.

That’s all we’re saying.

Felix Frankfurter:

What is the present statute over a period of probation?

Philip Elman:

The maximum is five years.

Felix Frankfurter:

Five years.

It was the day that he was sentenced with one of the — the original —

Philip Elman:

October 3rd, 1952.

Felix Frankfurter:

October, what?

Philip Elman:

October 3rd, 1952.

Felix Frankfurter:

October 3rd, is — Judge Joyce had on that day said, I put you on probation.

How long a period within which — how long the period was there?

How many — how much time I had was there, within which Pollard could have been brought into each definitively that he explicitly sentenced by jail sentence?

Philip Elman:

He could have been brought in at any time prior to the expiration of five-year period.

Felix Frankfurter:

Well then — so that the period of time is illegal, very significant provided Judge Joyce’s actual (Inaudible) the power to sentence foremost, is that right?

Philip Elman:

Yes, sir.

Felix Frankfurter:

So I don’t see what the two-year has to do with this problem.

Philip Elman:

Well, I —

Felix Frankfurter:

It was both (Inaudible) and if it wasn’t, then two days was too much.

He couldn’t do anything.

Philip Elman:

I would like to say in all fairness to Judge Joyce, who — who died earlier this year, that the start — that — that what happened in this case, the unfortunate series of events that followed arose from feelings of — of leniency and compassion which the judge held for this man when he was brought before him.

Here is Pollard who had pleaded guilty to a felony punishable up to five years in prison.

He was in the state prison at the time.

He had a prison record.

There aren’t very many federal judges who would have — who would have let him go without some kind of penalty.

Judge Joyce wanted to — wanted to give this man a chance.

Philip Elman:

He was — he was impressed by the — by the record the man had made while he’s a state prisoner.

He has worked with Alcoholics Anonymous.

He — he encouraged them to — to continue his work with that organization.

And he — he was giving him an opportunity to rehabilitate himself and that’s — now, as we read the record, we maybe wrong about it.

It’s — it’s conceivable that pressures were put on the judge thereafter and so forth as we read the record.

What happened here was the judge simply forgot to impose the sentence of putting the man on probation.

Now, that was a human — a human error for — for which he — we don’t think he’s to be condemned.

It was an oversight.

It should have been called to his attention by those in the courtroom had they been more attentive.

When the matter was raised an hour or so later, Judge Joyce didn’t have before him the transcript of his earlier remarks.

The courtroom — the court reporter was still — still on the job.

And — and Judge Joyce must have been thinking that he had — he had put the man on probation because he was just merely making explicit of what he had already made that influence it because it’s just inconceivable to us at least that the federal judge knowing that elementary fundamental requirement, you can’t impose a sentence on a defendant when he isn’t there.

To us, it’s incredible that this judge would have imposed the sentence on the man in his absence.

Mr. Elman —

Philip Elman:

If he really thought that he was imposing sentence for the first time.

Mr. Elman that brings me to a point that I think I know but I am not sure.

On page 6 of the record, and that’s just before probation was put on, there’s a (Inaudible) in the — what happened at the courtroom.

I — I assume that the record doesn’t tell us what was on that.

Philip Elman:

It — it isn’t in this record because these other matters of course are not —

William J. Brennan, Jr.:

Nothing to do with this case —

Philip Elman:

Now — that’s right.

William J. Brennan, Jr.:

— other cases (Inaudible)

Philip Elman:

Now, if the Court —

William J. Brennan, Jr.:

Or do we know what happened in the courtroom?

Philip Elman:

If the Court wishes to get — have that — have a transcript to those matters, I believe it could be furnished to the Court.

Although it’s not — I happen to have seen it but I won’t answer your question because it is outside of the record, unless you ask me — desire me to.

(Inaudible)

Philip Elman:

I beg your pardon.

(Inaudible)

Philip Elman:

Well, I’m under — I — I have seen that transcript, sir, and I know what’s in it and if you should like me to answer that question, I would tell you.

Earl Warren:

Mr. Elman, your reference to Judge Joyce, I just like to say that — that no — no necessity for us to condemn Judge Joyce as you suggest it might be necessary to decide for this defendant.

Many a fine judge has rendered a judgment against a defendant that must be reversed without — without any necessity of condemning —

Philip Elman:

That’s right, sir.

Earl Warren:

— the judge and I —

Philip Elman:

That’s right.

Earl Warren:

— I don’t like you to put us in to that position.

Philip Elman:

No, no —

Earl Warren:

Do you suggest —

Philip Elman:

And I don’t think it’s necessary.

Earl Warren:

— that Judge Joyce should not be condemned because we’re not here to condemn —

Philip Elman:

Well, if the Court —

Earl Warren:

— we’re here to — well, all we’re here for is to see that this man gets a square deal.

Philip Elman:

And to carry your thought further, Mr. Chief Justice, if you should disagree with the Government and — and of all the petitioners’ contentions, it wouldn’t be necessary for you to condemn the judge.

It would only be necessary for you to hold on the basis of your reading of the record that prior to the imposition of this invalid probationary sentence that prior to that time, Judge Joyce had made up his mind that he was going to dispose of this case once and for all completely that he was going to take him an unprecedented extraordinary action of not imposing any sentence without saying so many words that he was doing so without making a judgment of guilt or innocence as the — as the rules required.

Now, our position simply is —

Earl Warren:

Well, I doubt very much —

Philip Elman:

— he was inconclusive.

Earl Warren:

I doubt very much whether we even have to read his mind to that extent.

I think we’re — I think we’re governed by what happened, not — not by what he might have been thinking at that time, either — either he sentenced him or he released him.

One of the —

Philip Elman:

That’s right.

Earl Warren:

— one of the two and I don’t think that — that what he thought later or at the instance of the — of the assistant of United States Attorney need determined what’s the rights of this man are.

Philip Elman:

And if the Court is —

Earl Warren:

(Voice Overlap) take it on the record.

Philip Elman:

If the Court is satisfied that Judge Joyce, although accepting the plea of guilty, convicted the man but was releasing him entirely without probation, without any other penalty.

If that — if that is the Court’s interpretation of the record, then of course the judgment of the — of the sentence of 1954 was illegal.

Now, if I may add one —

Well, right there, do — do you discuss the power of a judge to arbitrarily release a man who has either pleaded guilty or have been found guilty?

Philip Elman:

Well, I suggested earlier a response to a question that there’s a serious question as to the power of a judge to do that.

(Voice Overlap) discuss it —

Philip Elman:

We have not —

— in your brief.

Philip Elman:

We have not discussed it because we — we don’t — we don’t think that’s what the judge in this case did.

But if — but to answer your question, in Ex parte United States, in 242 U.S., 1916, this Court held that a judge — a federal judge had no inherent power to suspend this sentence or release a prisoner on good behavior.

It took — the Court said — this Court said that only Congress could empower the federal judges to take such action.

That power was given to the — to the Court by the Probation Act in 1925.

The Probation Act which is set out in the briefs, says that upon a — upon judgment of conviction, the judges under an obligation either to impose sentence or to suspend imposition of sentence in either event, he may, if he sees that — put the defendant on probation up to five years.

Now, the Probation Act does not say that the — that a federal judge after conviction may release a man without probation.

We have not attempted to argue that he cannot in this case because on our constructional record and we may be wrong about it.

On our constructional record, we don’t think the judge was purporting to exercise that power.

But we do think, the question of power is relevant in construing what he did because if this judge — as every judge and federal prosecutor know, if — if this — if they release without probation, without imprisonment or fine, it is unheard of if it’s something as to which there may be serious doubt as to the power of the judge to do.

Is it not reasonable to assume that if — that this judge were — were for some reason — reason doing it for Mr. Pollard when he had never done it before, as far as we can tell, he never did it thereafter.

Isn’t it — isn’t it reasonable to assume that he would have said something as to why he was doing it?

And if had taken such unusual action which is — which might perhaps be beyond his power, isn’t it also reasonable to assume that he — that he would stick to it and wouldn’t change his mind within an hour or so?

Earl Warren:

Well, Mr. Elman, it says it’s reasonable to — to me to say that if the judge did change his mind with the great experience that he had had 20 years on — on the bench that he would have said, “Oh my goodness, I didn’t — I didn’t sentence this man properly.

He ought to be brought back here.

And I ought to sentence him when — when he’s in the presence of the — of the Court.”

And therefore, we will bring the man back for proper sentence but he — he didn’t do that.

He just —

Philip Elman:

He wasn’t told that he had an imposed sentence.

All the United States Attorney said to him was, this is on page 6 of the record, going back to the matter of Thomas E. Pollard who appeared this morning, I didn’t quite understand that clearly.

Is there to be a probationary period after his release from Stillwater or any type of sentencing?

United States Attorney —

Earl Warren:

Or any type of sentence which meant that he haven’t sentenced him at all.

Philip Elman:

No, he was asking.

This — the United States Attorney is saying, “I didn’t understand what you did, Your Honor.”

For — for all we know, United States Attorney may have been busy with — with other matters at the time and — or either he wasn’t listening or if he had listened, he wasn’t sure of his — of what had occurred.

Let me — that — that —

Earl Warren:

Basically, we’re indulging on an awful lot of presumptions to sustain this — this procedure as bad as you apparently think it is.

Philip Elman:

Well, we don’t think — we don’t think that we’re relying on any unreal presumptions as to what — what judges customarily do in sentencing.

Philip Elman:

What matter is we think that if — if Judge Joyce had been told by the United States Attorney that he had not imposed any sentence in this case, we doubt very much that Judge Joyce would have — would have just said, “Well, the sentence is to commence the expiration of — of the Stillwater term.”

Is it — is it a presumption to attribute to a federal judge a desire to — to comply with a fundamental requirement of — of law which is known to every law student that you can impose a sentence on the defendant when he isn’t there?

Earl Warren:

Well, I — I think we ought to presume.

He wants to — to do it regularly.

But — but I would also presume that if he — if he thought the probation officer didn’t understand that he had placed the man on probation or if given a man a sentence at all that the — that the defendant who was not represented by counsel might be equally confused.

And in that event, I would think if we’re in dealing — dealing in presumptions that a judge would say, “Well now, if I didn’t make that clear, if I didn’t place this man on probation, if I didn’t render any kind of a judgment, if I didn’t give him any sentence, then for goodness sakes, bring him back here and let’s — let’s clear this matter up instead of just saying, no, put it down for three years.”

Philip Elman:

Well, Your Honor, I understands that we — we admit that what — what happened there was not a judgment of sentence which was lawful.

I mean we’re not — we’re not arguing that that was —

(Inaudible)

Philip Elman:

— the disposition of the case, aren’t it?

It is — it’s the Government which is relying on these irregularities in 1952 to justify the correction of the sentence which occurred in 1954.

And —

Earl Warren:

All right.

Mr Boskey, thank you for accepting this assignment and performing this public service on — on behalf of this impoverished man.

Bennett Boskey:

Thank you, Your Honor, sir.