Ramirez v. Indiana

PETITIONER:Ramirez
RESPONDENT:Indiana
LOCATION:United States Courthouse

DOCKET NO.: 84-5059
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: Supreme Court of Indiana

CITATION: 471 US 147 (1985)
ARGUED: Mar 19, 1985
DECIDED: Apr 01, 1985

ADVOCATES:
Kenneth F. Ripple – on behalf of the Petitioner
Kenneth Francis Ripple – on behalf of the petitioner — rebuttal
William E. Daily – on behalf of the Respondent
William Earl Daily – on behalf of the respondent

Facts of the case

Question

Audio Transcription for Oral Argument – March 19, 1985 in Ramirez v. Indiana

Warren E. Burger:

We’ll hear arguments next in Ramirez against Indiana.

Mr. Ripple, I think you may proceed whenever you’re ready.

Kenneth Francis Ripple:

Mr. Chief Justice, and may it please the Court:

This case is here on writ of certiorari to the court of appeals of the State of Indiana.

It presents a single question with respect to the interpretation of the Interstate Agreement on Detainers.

The Court must decide whether Indiana could try the petitioner on a charge which was not mentioned in the detainer used to obtain his temporary and limited custody from the penal authorities of the State of Michigan.

The facts of this case are complicated, and I would like to state very succinctly the essence of our position on that question before I spend a good deal of time on the facts, which I think are difficult to grasp.

In essence, our submission is that this question can be answered by a straightforward of the IAD.

The trial court of the receiving state… in this case Indiana… only has authority to try a prisoner on those charges mentioned in the detainer or on those charges which arise out of the same transaction as those charges mentioned in the detainer.

For all other purposes the sending state… in this case the State of Michigan… retains both custody and jurisdiction of the prisoner.

Harry A. Blackmun:

Mr. Ripple, in that connection, where is your client now?

Kenneth Francis Ripple:

My client at the present time is in Westphil Correctional Institution in Indiana.

Harry A. Blackmun:

So he has not been returned to Michigan to continue his sentence there.

Kenneth Francis Ripple:

No, Your Honor, he has not.

And this might be a good time for me to inform the Court of several factors I was going to bring up later, probably in the–

Harry A. Blackmun:

In that connection, let me ask you, is Michigan unsympathetic to Indiana’s position here?

Why should Michigan want him back?

Kenneth Francis Ripple:

–Michigan… if I may give you these facts first, I think they will partially–

Harry A. Blackmun:

I know what the facts are.

Kenneth Francis Ripple:

–answer your… answer your–

Harry A. Blackmun:

I know what the facts are.

Kenneth Francis Ripple:

–Well, Michigan could… Michigan’s Governor had a right to make a determination in this case before he sent the petitioner across the line to stand charges, to stand trial on the Diazepam charges.

That right is given to the Governor of Michigan–

Harry A. Blackmun:

But Michigan isn’t complaining here, is it?

Kenneth Francis Ripple:

–Michigan is not complaining here.

It is… and one would not expect in the direct appeal of the criminal case that Michigan could be the complainant.

Whether Michigan has complained to the authorities of Indiana is not in the record, and we don’t know whether they have or have not.

Harry A. Blackmun:

Why should they complain?

Kenneth Francis Ripple:

They should complain because the Interstate Agreement in fact was violated.

Harry A. Blackmun:

But Indiana has the obligation and the expense of taking care of your client, not Michigan.

Kenneth Francis Ripple:

That’s correct.

Harry A. Blackmun:

They got rid of him.

Kenneth Francis Ripple:

But Michigan and the other states of the Union must in fact live with the uncertainty of knowing that Indiana will not abide by this agreement as it was set up.

The facts, Mr. Justice, if I may give them to you at this time, because I think they are not of record.

They are after the–

Byron R. White:

You think I don’t know them.

Kenneth Francis Ripple:

–I am not sure, sir, but I believe it’s my obligation to formally inform the Court of–

Byron R. White:

You say they are facts not of record?

Kenneth Francis Ripple:

–They are subsequent to trial, but I think pertinent to the disposition of the case, and I think, therefore, I have an obligation to inform the Court of them.

After trial on June 6, 1930… 1982, the petitioner was in fact paroled into the custody of the State of Indiana and was incarcerated by the State of Indiana.

On the second… I’m sorry… on February 19th, 1984, Michigan in fact discharged the petitioner from his sentence to incarceration in the State of Michigan.

He therefore continued his incarceration in the State of Indiana.

He is due for release on April 24th of the current year, but will be subject to probation for one additional year.

I am indebted to my colleagues from the state for helping me obtain that information, and I thought I had a duty to the Court to mention that to you.

Again, our basic position is that for all purposes other than the charges mentioned in the detainer, the prisoner remains subject to the jurisdiction of the sending state; that therefore, in this case the trial court in Indiana was without authority to try the petitioner on the Diazepam charges and, as a result, its judgment of conviction is void.

Now, the facts of the case are difficult to get a grasp on because they cover a long period of time.

And I suggest to the Court it would be helpful if the following factors were kept in mind as I go through them.

First of all, Indiana has incrementally recognized the correctness of the straightforward approach I have just suggested.

Indeed, the basic error in this proceeding, now admitted by Indiana, could have very easily been corrected at an earlier stage in these proceedings.

We are only here today because despite its confession of error, the State of Indiana refuses to give up the product of its earlier overreaction: the void conviction of the petitioner.

We submit that this reluctance of the State of Indiana is indeed contrary to their own best interests as signatories to the Interstate Agreement on Detainers.

Now, we have set forth the operative facts in summary fashion on pages 2 and 3 of our brief and in more plenary fashion at pages 3 through 8.

The facts involve what we in Indiana call two criminal causes.

The first cause, Section 424, involves three charges of dealing with a controlled substance called Diazepam.

The second cause, Cause 470, deals with delivery of marijuana.

Now, the underlying events with respect to the first of those causes, the Diazepam cause… that’s the cause we contend he should not have been tried upon… took place over a three-month period in early 1979.

And the petitioner was arraigned on those charges in April of 1979.

Now, as we’ve noted in some detail in our brief at page 4, he initially pleaded guilty… not guilty to those charges, and then later attempted to plead guilty pursuant to a plea agreement.

But the trial judge refused to accept the plea agreement, because he considered the plea to be improvident.

The trial was set eventually for March 1980 but later continued.

Kenneth Francis Ripple:

Before trial was had on that first Diazepam cause, the one which is in question here, the petitioner was arraigned in May of 1980 on the second cause, the marijuana cause.

The underlying events with respect to that cause took place in December 1979, almost 12 months after the underlying events for the first cause, and therefore, there is no question that they were not in any way related crimes, and no one has contended that.

In November 1980, after he had been arraigned on both causes but not tried on either, the petitioner was incarcerated by the State of Michigan pursuant to an unrelated felony charge.

In March 1981, after he had been in Michigan incarceration for several months, the prosecutor from Howard County, Indiana mailed to the warden of the prison in Jackson, Michigan a detainer which indicated that he wished to bring the petitioner to trial on two counts of dealing in marijuana.

Now, if I may anticipate a question at this point, it ought to be noted that one of the follow-up documents which was sent to Michigan to obtain temporary custody of the petitioner several months after the actual detainer was filed erroneously listed the cause number for the Diazepam counts, and said the petitioner was wanted on three counts of dealing in marijuana.

Now, at trial the State of Indiana contended that this in fact was an independent detainer with respect to the Diazepam counts.

The court of appeals of Indiana in its opinion… and you’ll note this at the Joint Appendix page 168… said that no reasonable factfinder could reach that conclusion.

And I note that the State of Indiana has in fact dropped that contention at this point.

So in short, having been told that he was going to return to Indiana to stand trial on two counts of delivery of marijuana, the petitioner waived his rights under Article 4 of the IAD, came across the border and… in the custody of Indiana authorities.

He came across on July 21st, 1981 from Jackson prison in Indiana over to Howard County, city of Kokomo in Indiana.

That’s northcentral Indiana.

On July 23rd he did file with the court a suggested plea bargain with respect to the Diazepam cause on the ground, but later withdrew it, and he filed a motion to dismiss on the ground that he had been brought across the border unwittingly with respect to the Diazepam charges.

Byron R. White:

Mr. Ripple, what if he hadn’t agreed voluntarily to leave Michigan?

I suppose he could have been brought against his will over.

Kenneth Francis Ripple:

Under Article 4 of the Interstate Agreement, Mr. Justice White, he had the right to request a hearing under the Uniform Extradition Act, and he also had a right to request that the Governor of Michigan not honor the extradition request, which–

Byron R. White:

Well, nevertheless, he could have been… if these procedures… if they’d gone through the right procedures, he could have been extradited–

Kenneth Francis Ripple:

–If they had gone through the correct procedures.

Byron R. White:

–All right.

Suppose that had happened, and then the same thing happened at trial.

Do you think the Governor could have treated that later second paper as a request for extradition?

Kenneth Francis Ripple:

On the Diazepam charges?

No, Your Honor, I do not believe so because, as the court of appeals of Indiana stated, it simply did not put either the prisoner or the Governor on notice that in fact he was wanted on those charges.

As a matter of fact, if I may invite your attention to Defense Exhibits 4 and 5 in the record, Michigan later by letter verified that their understanding was… the Michigan authorities were under the understanding that only the delivery of marijuana charges were at issue, that they did not know anything about these Diazepam causes.

I believe–

Sandra Day O’Connor:

Mr. Ripple, assuming there’s a violation of the requirements of the IAD, I think the more difficult question is what’s the remedy, because the IAD is silent on what you do about it.

So a mistake was made.

Now what do we have to do?

The IAD expressly provides for dismissal in some circumstances… a violation of time for trial limits, for example… but is certainly silent as to any remedy here.

And secondarily, even if dismissal were somehow appropriate, why in the world should it be with prejudice?

I just think… I’m concerned about those aspects.

Kenneth Francis Ripple:

–No.

Justice O’Connor, first of all, your question really has two parts to it.

It is our submission that Section… that Sections 5(d) and 5(g) of the Interstate Agreement do in fact indicate exactly what the remedy ought to be, and that is, the judgment is void and therefore cannot stand.

In its brief in the court of appeals of Indiana, although not in this Court, the State of Indiana did note the lack of remedial language in Section 5(g).

But I submit we really ought not to expect that there would be remedial language in 5(g).

The drafters of the IAD, like the drafters of any statute, do their work against a general jurisprudence.

When you say that a court has no jurisdiction, it is well understood in our law that in fact its handiwork is void; it has no effect.

William H. Rehnquist:

Or you might say they did their work against the Ker and Frisbie cases in that case.

Kenneth Francis Ripple:

I think, Mr. Justice Rehnquist, that an entire reading of the Interstate Agreement on Detainers, especially Article I, indicates that they were aware of Ker and Frisbie and in fact were trying to establish a system substantially different from Ker and Frisbie that would bring a certain amount of certainty and comity to an area which otherwise would not be governed by Ker and Frisbie.

William H. Rehnquist:

Well, but there is a certain amount of waste motion involved here if we sustain your claim.

There’s no charge that the trial was in any way unfair.

If we sustain your claim and say that… your client’s claim and say that the judgment in Indiana was void, he’s returned to Michigan.

The charges in Indiana are outstanding.

Indiana can again request extradition, and he’ll be extradited and tried again when there’s no complaint that his first trial was unfair.

Kenneth Francis Ripple:

I think there are two points that need to be made on this.

First of all, that remedy is not unknown in our law.

That’s standard practice, for instance, under the Uniform Act to secure the attendance of witnesses.

If a person has immunity to be in a jurisdiction to testify at a criminal trial and you serve… and you process on him that you shouldn’t, that process is void, the proceedings are void.

He has a chance to return to the state from whence he came, and you extradite him again.

It’s wasted judicial energy, but it’s wasted judicial energy because of the error of the state.

Indeed, in this case, as I indicated earlier, the state… we were in a position at trial to remedy this in a very easy sort of way, and indeed, if our position here is upheld, this will be remedied very easily in the future.

In reading through the entire motion to dismiss you will notice that both counsel for the accused at trial and counsel for the state at trial both suggested an alternate remedy to the trial judge at trial; that in fact he could have severed the two causes at trial, proceeded with the marijuana cause, and permitted both the petitioner and the State of Michigan to exercise their rights under the IAD.

It would have amounted to at most a 31-day lapse of time, and they could have tried the man on this second charge again.

Now, if I may return just for a moment–

John Paul Stevens:

May I interrupt before you do?

In one of Justice O’Connor’s questions she raised the question whether the judgment was with prejudice or not; and I had not understood that the judgment was void, that you were taking the position that it would bar further prosecution.

Kenneth Francis Ripple:

–We have, Mr. Justice, in this case because it has gone on for so long and because the facts of the situation have changed, we have a rather unusual circumstance.

Our position is, number one, that the judgment of conviction is void because it was entered by a court which had no authority to act with respect to that cause.

If this had happened, for instance, at the court of appeals of Indiana level, it may well have been proper to reverse the conviction, require that Indiana send the man back to Michigan, and that the Interstate Agreement on Detainers in fact be followed.

Here we don’t have that option, because he’s been discharged in Michigan.

Kenneth Francis Ripple:

We submit that under those circumstances, at the very least Michigan needs to… or rather Indiana needs to retry the petitioner.

This conviction cannot stand.

But we also submit since this is in fact a… the situation has changed not at our hands… we timely raised this at trial… but at the hands of the state which overreacted at trial, that indeed this ought to be dismissed with prejudice at this point.

John Paul Stevens:

Well, do you mean so that he couldn’t ever be tried?

Kenneth Francis Ripple:

Yes, Your Honor, in this particular case.

Sandra Day O’Connor:

Well, it’s just hard to understand why you think that should occur.

I mean what is unfair here about letting the matter proceed again?

Kenneth Francis Ripple:

We submit that that is at least the minimum that ought to occur.

The conviction cannot stand.

The judgment must be reversed.

That we submit there are two alternatives which the court ought to consider with respect to what happens at that point.

Assuming that that question–

Sandra Day O’Connor:

These are very serious charges, and I just wondered what in the world would justify a dismissal with prejudice.

Kenneth Francis Ripple:

–Well, it may very well be impossible for the man to get a fair trial at this point, to defend himself at this point, among other points, Justice O’Connor.

If I may return to your question for just a moment, because I don’t think I completely answered it, with respect to why there’s no remedial actual remedy spelled out here, but there is for the other… in other areas of the IAD, my submission is we would not expect it here, because the general jurisprudence indicates that a court without authority has a void judgment.

That’s not true in the other areas where a remedy is actually spelled out.

In those areas we’re dealing with the thou shalt nots of the IAD.

But the general jurisprudence really gives no answer and where one would expect the drafters to have to specify exactly what they did mean.

Harry A. Blackmun:

Mr. Ripple, will you spell out for me wherein your client has suffered prejudice other than not having a formalistic procedure to follow?

He knew of the pending charge in Indiana, the more serious one.

He had pleaded not guilty to it.

And presumably even on your alternative suggestion, he could go back to Michigan and redo it all over again.

I suppose what you’re saying is is he was prejudiced because the State of Michigan and its Governor didn’t have the opportunity listen to him and reach a contrary conclusion; and that’s a pretty weak reed on which to lean, isn’t it?

Kenneth Francis Ripple:

He was also prejudiced by being charged… by being tried by a court which did not have authority to enter a judgment of conviction against him and give him a consecutive sentence with respect to the charge.

That indeed was prejudice as well.

And indeed, in other areas of the law we acknowledge the fact that a party can be prejudiced that way.

In World-Wide Volkswagen against Woodson the Court indicated, for instance, that a defendant might in fact not be subject unwillingly to the civil jurisdiction, even it it was not fundamentally unfair to that defendant if indeed interstate federalism concerns had been violated by the court’s exercise of jurisdiction.

We all at times depend on legal process which perhaps was not developed exclusively for our benefit.

Here this was clearly developed for his benefit, as well as for the State of Michigan’s benefit, and for the benefit of the interstate system.

And it is on that ground that this particular jurisdictional… that this particular really immunity existed for him from the exercise of the court’s jurisdiction at that point.

Harry A. Blackmun:

Well, this is a little different from World-Wide Volkswagen in the sense that you can see that Indiana had some jurisdiction over him, for the lesser charge in any event.

Kenneth Francis Ripple:

It had jurisdiction over him for the lesser charge.

Harry A. Blackmun:

So you’re giving them partial jurisdiction.

Kenneth Francis Ripple:

That’s correct.

And as we pointed out in our brief… I believe it’s at page 23, if I’m not mistaken… we are not claiming that there was no residual jurisdiction with respect to the Diazepam charge.

We are contending that at the time this court attempted to exercise this jurisdiction, it was prevented from doing so by virtue of the Interstate Agreement on Detainers which says you will not exercise your normal criminal jurisdiction under these circumstances.

Harry A. Blackmun:

What is the factual answer to all this?

Was this a prosecutor’s blunder, do you think, or was Indiana purposefully deceiving you?

Kenneth Francis Ripple:

We make no claim that there was purposeful deception by the State of Indiana ab initio.

We feel that Indiana is more at fault here for having perpetuated the problem at trial by taking what we suggest was an unreasonable position during the motion to dismiss.

Indeed, if the trial… if the state had acknowledged in the trial court what it now acknowledges, that there was a violation of the IAD, we wouldn’t be faced with the delicate task of talking about a remedy for this particular accused today.

The trial judge could have severed these causes.

He could have proceeded.

He could have tried the marijuana cause.

He could have tried the Diazepam cause about a month later.

There would not have been a problem.

Section 5(b) and Section 5(g), we submit, when they are read together clearly indicate what the result ought to be.

This prisoner in effect was on loan from the State of Michigan, on loan for a very temporary and specific purpose, and the jurisdiction of the State of Indiana was limited by the terms of that law.

In fact, we know… it’s our reading of the state’s brief that they really do not dispute that reading of the statute; thus, in effect, narrowing even further the difference between us.

The state’s concern at this point seems to be in maintaining this particular conviction, and we submit that’s an understandable but rather shortsighted goal.

The State of Indiana, like every other state in the Union, has an overwhelming interest in seeing that the Interstate Agreement on Detainers is in fact observed according to its expressed terms.

Indiana joined this compact for the same reason the other 47 states did: to accommodate the daily interreaction of state governments in this very important area of the interstate rendition of prisoners.

As this Court pointed out in its past cases in this area, the IAD protects not only the criminally accused; it also protects the federal system.

It protects our interstate federalism.

Whatever the long-term vitality of the Ker-Frisbie rule might be in other contexts… and in a footnote in our brief we suggested that it’s not entirely compatible with some of the later holdings of this Court… you don’t need to reach that question today.

It’s clear that here in this area the states intended to adopt a far more cooperative approach.

The states don’t need the kind of flexibility which Indiana has suggested.

It is indeed unusual, we suggest, that the State of Indiana stands here alone today.

We don’t see an amicus brief from the other states of the Union saying this is how we want this interstate compact administered.

Harry A. Blackmun:

Well, of course, Michigan isn’t here with an amicus brief either.

Kenneth Francis Ripple:

They are not, and I don’t think you would expect, Mr. Justice, that they would be here in support of the criminal–

Harry A. Blackmun:

Well, on your basis I would expect them to be here.

Kenneth Francis Ripple:

–Well, we would respectfully, I think, disagree on that point.

For that reason, Your Honors, we submit that the judgment of the court of appeals of Indiana ought to be reversed.

Warren E. Burger:

Mr. Daily.

William Earl Daily:

Mr. Chief Justice, and may it please the Court:

Indiana did not solicit amicus participation in this brief, and I apologize for that.

But I am certain that as in other cases–

John Paul Stevens:

Thank you very much for–

–You don’t have to apologize for that.

[Laughter]

William Earl Daily:

–Michigan, in answer to another question, promptly paroled the defendant in this case after his conviction in Indiana, I presume so as not to have to pay for his upkeep during his incarceration.

He has not… if a remedy is a retrial in this case, I’m not certain that he can be returned to Michigan involuntarily.

Michigan has no longer a claim on him, and he is a resident, a long-time resident of Howard County, Indiana.

He apparently just want to Michigan for a drug deal, was caught and convicted there.

The petition in this case contends that we have somehow… that the court of appeals in Indiana somehow decided that his interpretation of the second document is correct.

I don’t read that in the opinion of the court of appeals of Indiana.

The court of appeals did hold that there was a violation of the Interstate Agreement on Detainers.

I don’t find in there a holding that the second document sent to Michigan is not a detainer within the meaning of the interstate agreement on detainers.

And we contend that it is a detainer within that agreement.

The agreement does not define detainer.

A detainer is simply any document which puts the holding state on notice that the prisoner is wanted in another state for trial on a criminal charge.

The second document sent to Michigan, entitled 4-24, fulfills that test for a detainer.

Therefore, we maintain there was a detainer sent to Michigan on 4-24; therefore, Article 4(d), relied upon entirely by the petitioner, does not apply in this case.

The Kansas Supreme Court in a case entitled State v. Clark, and referred to in our brief, addressed that very issue and held that a request for temporary custody in the absence of some other document is a detainer.

We have a detainer in this case.

Unfortunately, the detainer, the request for temporary custody, used the word 4 controlled substance> [“].

But it did refer to the proper cause number, the proper counts; it did inform the holding institution that Indiana wanted this gentleman back for trial in Indiana.

The consequence for filing that request for temporary custody is that it triggers the speedy trial provisions of the Interstate Agreement on Detainers, and that’s exactly the purpose for the adoption of the Interstate Agreement, to provide for incarcerated prisoners a method to obtain their speedy trial rights under the Constitution.

We provided that.

William Earl Daily:

We have given the defendant here the benefit, the intended benefit of the Interstate Agreement on Detainers.

Had we not tried him after getting custody back under 424, he would then have been entitled to the remedies provided by the statute.

If we had not tried him within 120 days, he was entitled to discharge with prejudice.

If we had sent him back to Michigan in order for this procedure that’s talked about, the hearing procedure, if we sent him back to Michigan, the no return provision of the Interstate Agreement on Detainers says we cannot try him thereafter.

He is entitled to dismissal with prejudice.

So the prosecutor here is faced with a terrible decision.

If the request for temporary custody is a detainer, and he sends him back to Michigan, he is forever precluded from trying that defendant.

In that sort of catch-22 position, I think the prosecutor did the only thing he could do.

He proceeded to trial on Cause number 424.

If we assume for a moment that the defendant is right and that the court of appeals did say that this is not a detainer… I don’t find that there, but if they said it’s not a detainer on 424, we then must examine Article 5(d) to see if it provides what the petitioner says.

John Paul Stevens:

Counsel, they didn’t say it wasn’t a detainer, but they did that its presence on the 424 charges was obtained outside the agreement.

Didn’t they say that?

William Earl Daily:

And Indiana acknowledges that there has been a violation of the Interstate Agreement on Detainers, but it is not the failure to file a detainer in 424.

John Paul Stevens:

I see.

William Earl Daily:

It is putting incorrect information on the detainer.

And there is a violation by Michigan in failing to notify the defendant that a detainer had been filed.

John Paul Stevens:

What was the violation by Indiana?

William Earl Daily:

Indiana’s violation, although it doesn’t specifically require the receiving state to be notified of the exact nature of the charge against him, I think it could be held to be a violation of the agreement to incorrectly notify the holding state as to the nature of the charge.

Michigan’s violation is much more clear.

There was no indication, no notice to the defendant that he was wanted on charge 424 in Indiana.

John Paul Stevens:

But you do acknowledge there was a violation by Indiana.

William Earl Daily:

Yes, Your Honor, we do, clearly.

If there was a detainer, Article 5(d) doesn’t apply, and the Indiana court had clear jurisdiction to try the defendant on Cause number 424 the drug charge with no problem.

If it’s not a detainer, as maintained by the petitioner, then we need to examine Article 5(d) of the Interstate Agreement on Detainers.

That article has eight paragraphs, those numbered paragraphs or lettered paragraphs (a) through (h).

Each deal with a different aspect of the Interstate Agreement on Detainers.

The petitioner has lifted out the first sentence of 5(d), but 5(d), in order to be understood, must be read as a whole.

The first sentence provides that temporary custody shall be only for the purpose of permitting prosecution on the untried charges which form the basis for the detainer.

And if it stopped there, the petitioner’s position would be much stronger.

But the second sentence of Article 5(d) I think explains the purpose for it.

William Earl Daily:

It goes on to say that except for his attendance at court and while being transported to or from any place where his presence may be required, the prisoner shall be held in jail.

That is the purpose for that first clause, to ensure that the prisoner is held in jail and returned to the sending state after his trial in the receiving state.

And that interpretation coincides exactly with the expressed purposes of the Interstate Agreement on Detainers.

The final provision of the Interstate Agreement on Detainers, Article 9(1), indicates that the agreement is to be liberally construed so as to effectuate its purposes.

If you liberally construe Article 5(d), you do not come to the conclusion reached by the petitioner in this case.

The purposes–

Harry A. Blackmun:

Counsel, I’m confused about one thing.

What is the routine in these?

Suppose you have a proper Indiana conviction.

Does he serve that one first, or does he go back to Michigan and finish out his sentence there?

William Earl Daily:

–One of the benefits that petitioner has in this case and that prisoners have under the Interstate Agreement on Detainers is that they can, unless the court indicates otherwise, serve these sentences concurrently.

So that in this case the petitioner, rather than having to delay his sentence on 424 until he’d been sent back to Michigan, and if we could have brought him back, then brought him back and tried him, he had the benefit of being able to serve concurrently both his Michigan and Indiana sentences.

Harry A. Blackmun:

Where would he serve them?

William Earl Daily:

Ordinarily he would be returned to the sending state.

He would have gone back to Michigan first to serve out his term there, and then come to Indiana.

Harry A. Blackmun:

That’s the way I thought you read the statute, and yet that didn’t happen in this case.

William Earl Daily:

Because immediately after sentencing in Indiana, the Michigan authorities paroled him, said we don’t want him back, in effect.

Sandra Day O’Connor:

Well, I assume the Indiana judge could have sentenced him to a consecutive sentence, in which case he would have gone back to Michigan to fill that term and come back to Indiana, right?

William Earl Daily:

That’s true.

That could have happened.

It did not in this case.

There is no expression of concern in the purposes for which this agreement was adopted which relates to the number of crimes for which a prisoner can be tried when he’s brought back to a state.

Warren E. Burger:

I take it that when Michigan decided to parole him, they were aware that he was up on another drug charge.

William Earl Daily:

The Michigan authorities were well aware that he had been convicted and sentenced in Indiana at the time of the parole hearing in Michigan.

Warren E. Burger:

It seems rather extraordinary.

William Earl Daily:

That he would be paroled?

Warren E. Burger:

Yes.

William Earl Daily:

If he were not paroled, he would be still maintained at the expense of Michigan in Michigan prisons.

Warren E. Burger:

That’s my next question.

This was just a matter of economics?

Warren E. Burger:

Let Indiana take care of–

William Earl Daily:

I have no way of being sure of the thought processes behind the Michigan parole authority’s decision, but I very much assume that their prison system is as crowded as ours, and they were very happy to turn him over to Indiana for custody.

William H. Rehnquist:

–Well, it seems like there’s a certain accounting approach to bringing someone back to Indiana, trying them for an offense, and then sentencing them to a concurrent sentence to one which they’re already serving in Michigan.

It clears the books, but–

William Earl Daily:

That’s certainly one of the reasons for the Interstate Agreement on Detainers, so that prisoners can get rid of pending charges, and unless they are sentenced to consecutive sentences, they can serve them out concurrently rather than consecutively.

But the prisoners get the benefit of that provision, assuming there’s not a consecutive sentence imposed by the second state.

William H. Rehnquist:

–Well, was the sentence imposed by the Indiana court here consecutive?

William Earl Daily:

No, it was not.

It was… there was a consecutive sentence, but there was a two-year sentence for the marijuana charge and a five-year sentence for the drug charge in Indiana, but those sentences were to be served concurrently with the Michigan sentences.

There’s no indication otherwise.

Byron R. White:

There’s a lot easier way of clearing the books than getting the fellow back and trying him and sentencing to a concurrent.

They could just dismiss the charges, if his likely sentence in Indiana was going to be no more than what it was in Michigan.

William Earl Daily:

Well, in this case it turned out it be… it turned out to be more than the Michigan sentence.

He has since his conviction served in Indiana.

If Article 5(d) could be read as limiting the number of crimes for which the prisoner can be tried while in temporary custody, it’s the State of Michigan which should be asserting that.

Article 5(d) was enacted for the benefit of Michigan, not the benefit of the prisoner.

If the prisoner is released from custody in the receiving state, if we do anything with the prisoner, the receiving state not permitted by Article 5(d), Michigan has the right to go to court and seek a remedy, a relief.

Michigan has not done that.

If Michigan were sitting at that table arguing in this case, I would be in very bad trouble, assuming that there’s not a detainer in this case.

But Michigan is not there, and Michigan is not asserting its rights, and there is nothing in this agreement which appears to transfer from Michigan its right to the defendant.

This Court in past cases has looked at interstate agreements and applied contract law or treaty law.

If you apply that law and you say was this an intended third-party beneficiary, I don’t think you could find anything in the agreement that indicates that this is an intended third-party beneficiary who is intended to have the rights to assert Michigan’s claim here.

Obviously–

Sandra Day O’Connor:

Well, is there no claim at all on the part of the defendant, that I thought was being asserted, to have his right to argue in Michigan the appropriateness of the disposition of Michigan to send him off in response to the detainer?

William Earl Daily:

–No, because the petitioner in this case is asserting a different violation of the Interstate Agreement on Detainers.

That argument has not been raised by the petitioner.

That argument could be raised had he adopted that approach, I think.

But in this case the argument is based on total lack of jurisdiction in the Indiana court.

Sandra Day O’Connor:

Well, it seems to me it’s related that there is no jurisdiction until there’s a proper extradition, and there wasn’t a proper extradition on these charges, and that the defendant has some right to a proper extradition proceeding under the IAD.

I mean at least that’s how I understand the article.

William Earl Daily:

That may be true, but then the remedy in that case is perhaps the civil remedy that… the petitioner here is pursuing a civil remedy through the U.S. district court for the Southern District of Indiana.

And if there is a remedy, I think it is fashioned in that proceeding rather than in this one.

If we assume for the same of argument that Article 5(d) was intended to benefit the petitioner–

Sandra Day O’Connor:

You mean there’s a 1983 action ahead–

William Earl Daily:

–Yes, Your Honor, there’s a 1983–

Sandra Day O’Connor:

–against Indiana?

William Earl Daily:

–There’s a 1983 action.

The Seventh Circuit has… the action was originally dismissed by the district court.

The Seventh Circuit has reversed that dismissal and sent it back for further proceedings, apparently finding that there is a civil remedy of some sort for the petitioner in this case.

Sandra Day O’Connor:

What would happen if we were to agree that dismissal is appropriate but without prejudice?

What would happen at that point?

William Earl Daily:

Presumably the defendant would be retried.

The facts in this case are overwhelming, and he would be reconvicted, resentenced.

He has served all but one month of his presumed sentence.

Sandra Day O’Connor:

I suppose because Michigan has already paroled him, he would not have to be sent back to Michigan.

You could just refile on the spot.

William Earl Daily:

I don’t know that we can send him back to Michigan.

They have no claim on him, and if he is released, we can’t force him to go back.

Sandra Day O’Connor:

Yes.

That’s my inquiry.

William Earl Daily:

The petitioner asserts that by adopting this agreement the state has somehow waived its right to bring prisoners into a state illegally.

Of course, the state doesn’t have a right to bring prisoners into a state illegally, but under the Ker-Frisbie cases, even though the state violates a federal law, the state can try that defendant, and the conviction should be affirmed.

The Frisbie v. Collins case is extremely relevant to this case.

In that case the defendant was arguing that we have a new law, a new federal law which changes the Ker doctrine.

And this new law says that you can’t kidnap someone from one state… that’s the Federal Kidnapping Act that was adopted by Congress… and the defendant in the Frisbie-Collins said because of this new statute, you can’t kidnap me from Illinois and take me into another state and try me in the other state.

That’s pretty much the argument here.

You cannot violate the federal law, grab me in Michigan, bring me back and try me.

Justice Black rejected that argument and held that there’s nothing… he want on to hold that there’s nothing in the Constitution that requires a court to permit a guilty person, rightfully convicted, to escape justice because he was brought to trial against his will.

I think if you insert in that sentence, change “Constitution” to “Interstate Agreement on Detainers”, you came to the same result.

There’s nothing, there is nothing in the Interstate Agreement on Detainers that requires a court to permit a person, guilty person rightfully convicted, to escape justice because he was brought to trial against his will.

William Earl Daily:

A federal law is a federal law, and whether it is the Federal Kidnapping Act or whether it’s–

Byron R. White:

But the submission is that he was brought to trial by a court that didn’t have any jurisdiction to bring him to trial.

William Earl Daily:

–There’s nothing, I submit, in the Interstate Agreement on Detainers which says the receiving… the court in Indiana has no jurisdiction.

It does say in 5(e) and 5(g) that jurisdiction remains in the sending state.

But a person can be within the jurisdiction of two states or two jurisdictions at the same time.

There is nothing that says even though jurisdiction remains in Michigan for certain purposes that jurisdiction is not also in the Indiana court.

Byron R. White:

So you just think that the way to decide this case is just follow Frisbie.

William Earl Daily:

Exactly, Your Honor.

Byron R. White:

And that Indiana’s violation will just have to be left to history to cure.

William Earl Daily:

Or the civil action pending in the district court.

Byron R. White:

But there’s just no remedy otherwise.

William Earl Daily:

Well, the remedy lies in the civil action.

Byron R. White:

Well, what do you do?

You sue them for having convicted me illegally?

That’s a very strange suggestion.

William Earl Daily:

I don’t suggest that.

In fact, I’m–

Byron R. White:

What does the 1983 case… what does it allege?

William Earl Daily:

–It’s a strange case, Your Honor.

It was brought against… strange case.

It’s pending here on cert, and I wish you’d take a look at it.

[Laughter]

The Seventh Circuit… the case was brought against the officers who went to Michigan and brought him back.

Now, I would assume that those officers, since the petitioner has agreed that he was brought back validly under 470, it would be hard to state a claim against them.

But he is claiming that once he gave them notice of the fact that he was going to be tried on something other than 470, they had some duty to grab him out of jail and take him back to Michigan.

He’s also suing the administrator of the Interstate Agreement on Detainers.

Now, the Seventh Circuit sent this back to trial, so I present it to you with that understanding.

William H. Rehnquist:

Well, we don’t generally get oral argument on petitions for–

William Earl Daily:

Well, I get all excited about that one.

[Laughter]

William Earl Daily:

I get excited about that one and since the Indiana–

John Paul Stevens:

–Yes, but if your view of that case is correct, you’re in effect saying there isn’t any real remedy unless you find a remedy in this case.

William Earl Daily:

–No.

I’m sorry, Your Honor.

There may be a remedy.

I don’t think it’s against the officers who transported him.

John Paul Stevens:

But what… I’m a little puzzled about what it would be.

I’ve shared Justice White’s puzzlement about this.

William Earl Daily:

Well, I think the remedy here may be the same as the remedy in Frisbie v. Collins.

John Paul Stevens:

But there’s nothing, isn’t it?

William Earl Daily:

Is there… that’s not discussed in Frisbie v. Collins.

Certainly the remedy in that case was not to retry the defendant.

John Paul Stevens:

But the only damage to this person that he’s been convicted, and yet you’re saying the conviction is valid.

I don’t know how you can get damage for being validly convicted of something you did.

William Earl Daily:

Well, if this Court wants to–

John Paul Stevens:

I just–

William Earl Daily:

–I understand that, Your Honor, and it’s a concern here with me, too; that a wrong has been committed for which there may not be a remedy.

But the remedy… the wrong in Frisbie v. Collins was a kidnapping rather than here a–

John Paul Stevens:

–Well, I understand that, but arguably isn’t there a difference that here if you have… perhaps one could read the Interstate Agreement on Detainers to be a surrender by each of the contracting states of some element of jurisdiction it would otherwise possess.

It, in effect, has agreed not to exercise jurisdiction in certain classes of cases.

You didn’t have that element in the Frisbie situation.

William Earl Daily:

–That… and I think that is the heart of the petitioner’s argument, that there has been some surrender of a right here to try the defendant.

I don’t find that in the express language of the Interstate Agreement on Detainers.

I don’t find that in the purposes.

If you go to the legislative purposes for which the agreement was adopted, I don’t find it there either.

I don’t–

William H. Rehnquist:

Even if there were such a surrender, perhaps the only person… the only party you could claim violation of would be the state of Michigan.

William Earl Daily:

–That was–

William H. Rehnquist:

–rather than the defendant.

William Earl Daily:

–Yes.

William Earl Daily:

I argued that, and I still maintain that it’s Michigan right to ensure a prompt return of the prisoner that’s relevant here.

I also want to present one more point to Your Honor on that question that you asked.

If violation of federal kidnapping law does not trigger some sort of retrial, I don’t think breach of a promise to abide by the Interstate Agreement on Detainers triggers… triggers that retrial remedy.

In other words–

Thurgood Marshall:

But the detainer statute says specifically who shall have jurisdiction, in quotes, jurisdiction in the kidnapping statute, doesn’t it?

William Earl Daily:

–That’s true.

The… but the–

Thurgood Marshall:

Well, that’s the only point we’ve been arguing here.

William Earl Daily:

–Well, the Interstate Agreement on Detainers says that jurisdiction is in Michigan.

It doesn’t deny that jurisdiction can be in other courts.

This defendant–

Thurgood Marshall:

For all other purposes.

That’s pretty strong language.

William Earl Daily:

–But if read with the following sentence, I think it indicates a different intent on the part of the parties to the agreement.

Thurgood Marshall:

“The prisoner shall be deemed to remain in the custody of and subject to the jurisdiction of the sending state. “

period.

That’s the other sentence.

William Earl Daily:

That’s (g), I’m sorry.

I’m talking about 5(d).

(g) merely provides that if he escapes while in Indiana, he’s subject to trial in Michigan for escape.

I don’t think it goes to any of the arguments relevant here.

It certainly doesn’t–

Thurgood Marshall:

But it says–

William Earl Daily:

–Well, it certainly doesn’t say that Indiana doesn’t have jurisdiction.

Jurisdiction had vested in the Indiana court.

Clearly he had been arraigned.

He had entered a plea in the Indiana court.

Jurisdiction was there.

I don’t find anything in the Interstate Agreement that says we yanked jurisdiction out of Indiana.

Thurgood Marshall:

–Well, your argument is that Michigan should raise this.

William Earl Daily:

Certainly.

Thurgood Marshall:

Well, it seems to me that anybody has a right to be tried by a court of competent jurisdiction.

William Earl Daily:

Well, I guess the question then is whether the Indiana court has jurisdiction, and I maintain that it does.

Thurgood Marshall:

And the other side says no.

William Earl Daily:

That’s correct, and that’s why we’re here.

This Court has acknowledged that granting new trials is an extreme remedy, and it doesn’t always comport with the interest of sound judicial administration.

That’s a quote from Jackson v. Dence filed in an amicus brief that I apologized for in yesterday’s Black v. Romano case.

We are looking here at something that comports with the interest of sound judicial administration, and I think the concerns addressed or expressed from the bench earlier are valid here.

Sound judicial administration does not require a retrial in this case.

The agreement doesn’t require it, and sound judicial administration does not.

I don’t want to leave without addressing the question of whether or not there is a here an interstate compact.

That’s one of the most important aspects in this case.

I want to present here an opportunity to reconsider Cuyler v. Adams.

In 1978 Mr. Justice Powell wrote,

“At this late date we are reluctant to accept this invitation to circumscribe modes of interstate cooperation that do not enhance state power to the detriment of federal supremacy. “

That was in U.S. Steel v. Multistate Tax Commission.

They found there, the Court found there no compact, no interstate compact because there was no enhancement of state power to the detriment of federal supremacy.

I think had that test been applied in Cuyler v. Adams, there would have been a different result.

The Cuyler Court, quoting from a law review article by Justice Frankfurter, said… began by noting that the traditional role of the Compact Clause was to give Congress supervisory power over cooperative state action that might otherwise interfere with the full and free exercise of federal authority.

I think if you had applied that test to determine whether the Interstate Agreement on Detainers interfered with the full and free exercise of federal authority, you would have come to a different result.

The test actually adopted by this Court in Cuyler used the language “appropriate for federal legislation”.

I submit that under the Commerce Clause and the 14th Amendment and certain other provisions of the Constitution, there’s very little that’s not appropriate in some sense, appropriate for federal legislation.

That’s a very broad test.

Appropriate for federal legislation covers a great many things which do not and have not traditionally been considered to be interstate compacts.

In this case had this agreement merely been between Indiana and Michigan, it is still, I submit, in the analysis of Cuyler v. Adams appropriate for federal legislation.

The fact that 47 other states have entered into it doesn’t change the nature of the agreement or the nature of the compact.

The finding of a broad Compact Clause application in Cuyler v. Adams leads the states into a precarious situation.

Any agreement that we enter into with another state, whether we intend it to be so or not, becomes an interstate compact if in some sense it’s appropriate for federal legislation.

I don’t think that was intended by the Compact Clause, and I would request this Court to reconsider the ruling in Cuyler v. Adams.

The only response by the petitioner to that is stare decisis, but stare decisis has never and should never prevent this Court from examining a case which appears to me to be clearly wrong.

William Earl Daily:

Although the petitioner will not admit it, the violation of the statute here worked to his benefit.

He was tried sooner than he would have been had he been sent back to Michigan, if that could have been done.

He then began serving his term here sooner than he would ordinarily have done.

He is due for release next month rather than several months or several years in the future, which would have been the case had the agreement not been used as it was intended for the speedy disposition of pending criminal charges.

Article 9(1), I refer to again, indicates the agreement is to be liberally construed so as to effectuate its purposes.

The constructions proposed by the petitioner do not effectuate the purpose of the Interstate Agreement on Detainers.

The express terms of the Interstate Agreement on Detainers do not entitle the petitioner to a new trial.

To paraphrase Justice Black one more time, there is nothing in the Interstate Agreement on Detainers that requires a court to permit a guilty person, rightfully convicted, to escape justice.

Thank you.

Warren E. Burger:

Do you have anything further, Mr. Ripple?

Kenneth Francis Ripple:

Please, Mr. Chief Justice.

Mr. Chief Justice, may it please the Court:

Very briefly, we believe there’s a single theme in Indiana’s approach to this case: a lack of acknowledgement of its federal responsibility.

It argues to the empty chair of Michigan in this direct criminal appeal that it had the responsibility towards seeing… was indeed conducted in accordance with the Interstate Agreement–

Byron R. White:

Mr. Ripple, what would really be the purpose of setting aside, having this conviction set aside?

Certainly I can’t see how it is going to help your client.

I would suppose it would just be a signal to the states to turn square corners in the future.

Kenneth Francis Ripple:

–I think he would at least have the opportunity to be tried by a court which had jurisdiction, and that might be very important to him if Indiana elects not to try him in light of the habitual statute in Indiana should he ever be in trouble with the law again.

And as you suggest, Mr. Justice White, it is important to the law that we prevail in this case certainly.

There is one message–

Byron R. White:

There are other ways of doing that besides setting aside the criminal conviction, I suppose.

Kenneth Francis Ripple:

–And you could permit new trial, and Indiana would have to bear that responsibility.

Byron R. White:

The Indiana officials who made the mistakes, or the Michigan people who made the mistakes could be fired or they could be… they will learn what their duties are.

They’ll learn how to do their job.

Kenneth Francis Ripple:

Although we submit that’s impossible in the context of this case, that indeed a 1983 remedy would not be… it would not make the petitioner whole.

Uncertainty is what Indiana argues here for, uncertainty for the sending state.

It will never again know why it is sending someone across the border.

Uncertainty for the prisoner.

He won’t know whether to waive his rights or not, because he doesn’t know what’s going to happen to him when he gets across the line.

And uncertainty for every other state in the union and the federal government, because they no longer will know whether or not the states will abide by the agreement they freely entered into here.

Kenneth Francis Ripple:

In short, Indiana argues for wax teeth for this agreement; and we respectfully submit that it is in the best interests of the State of Indiana that our position on the law prevail here.

Thank you, Mr. Chief Justice.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.