Smith v. Hooey

PETITIONER:Smith
RESPONDENT:Hooey
LOCATION:United States District Court for the District of Columbia

DOCKET NO.: 198
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: Supreme Court of Texas

CITATION: 393 US 374 (1969)
ARGUED: Dec 11, 1968
DECIDED: Jan 20, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – December 11, 1968 in Smith v. Hooey

Earl Warren:

Number 198, Richard M. Smith, petitioner versus Fred M. Hooey, Judge, Criminal District Court of Harris County, Texas.

Professor Wright.

Charles Alan Wright:

Mr. Chief Justice, may it please the Court.

The issue here is whether or not a state is excuse from the duty that would otherwise be upon it to give a speedy trial to a person it has indicted on the state charge because that person is during pendency of the indictment in the federal penitentiary on some other charge.

The Texas Supreme Court in a consistent line of cases has ruled that it is not that although it is bound to give a speedy charge to a person under Texas indictment who was under — who was in a Texas prison that it is not required as some other sovereign to produce a prisoner in order that may try him.

I propose to spend unless the Court has its questions on the matter very little time on the merits in part because I do not think that there is an issue as between my friends for the state and myself on the underlying constitutional principle.

I do not find such an issue drawn in the brief and I believe that Mr. Moss speaks for the respondent that it will appear that we agree on the basic constitutional point.

Now, of course the agreement of counsel can’t put an authoritative construction on the Constitution of the United States but I would think that on the substantive point, your decision last term speaking through Justice Marshall in the case of Page versus Barber is quite decisive that the problem decided in Page and Barber is really indistinguishable from the problem of this case presents that where someone who is needed for a criminal proceeding is in the custody of some other sovereign that at least the state has the duty to make a reasonable effort to endeavor to getting back from the prison in which he presently languishes.

A reasonable effort is all that Page and Barber requires to solve that we contend for us the rule in this case since it is I think quite clear here that Texas has made no effort to get this petitioner back from Leavenworth.

I do want to call to the Court’s attention a study of this matter that it is not referred to an either of the briefs because it has become available only very recently and that is a 63-page national survey of detainers prepared by the National Defender Project of the National Legal Aid and Defender Association.

That Association made copies available both to counsel for the respondent and to myself and I’m sure would be glad to make copies of their very comprehensive survey available to the Court.

Earl Warren:

We would like to have them Mr. Wright.

We would like to have them if they’re available.

Charles Alan Wright:

I’m sure that they can be made available and I will see that that happens Mr. Chief Justice.

Earl Warren:

Thank you.

Charles Alan Wright:

There is an issue between my friends and myself.

I’m not sure whether it goes to substance or to procedure that has to do with the effect of the solvency of a person under the state charges.

The state makes the argument that they do not know when the present petitioner became indigent and that since the indictment that they returned against him in 1960 alleged that he had recently acquired by theft some $42,000.00 unless he notified them that he were indigent, they would have no reason to know that he was indigent.

And therefore, no reason to think that he could not finance his own way to Houston in order to stand trial.

The — in the view that petitioner submits of that the fact is of his indigency is irrelevant that the obligation to give a speedy trial extends as well to a prisoner or in person under indictment who is rich as it does to one who is without funds.

It’s a little hard to see, in fact, what good it would have done the petitioner if he had had funds the states says, “Well, we would’ve given him a trial within two weeks anytime he showed up in Houston.”

And if he’d the money to pay his way from Leavenworth to Houston and it said to himself, “Oh, I think I would go down to Houston and stand trial.”

I imagine that the federal prison authorities at Leavenworth would’ve taken a rather deem view of that.

That they would not have allowed him to go unless the state had made an effort, we’re told in memorandum of the Solicitor General.

But ordinarily, the policy of the Bureau of Prisons is to require a writ of habeas corpus at prosequendum from the state court and that when that comes, the Bureau then is very cooperative and almost invariably will make the prisoner available.

But it isn’t the fact that Mr. Smith did or did not have funds that in my submission is significant.

It is the fact the he was confined by the federal authorities and that some request from the state authorities was necessary before the federal authorities would let him out of the walls of Leavenworth to go to Houston to stand trial.

There are obvious problems in this case because the record is not very frequent.

I’m very aware of that from the outset of the case and the state suggest in its brief because of the skimpiness of the record it — this Court either should dismiss the writ as improvidently granted or should remand the case to the — either the Texas Supreme Court or state trial court for further fact findings.

I submit however that the record skimpy as it is presents every fact that is necessary for decision of the comparatively narrow issue that the case presents that it would be nice to have a good deal of background to this day, though I’m his counsel do not know on what federal offense my client was convicted but I can’t think it really makes any difference whether he was in Leavenworth on one crime or another that these are matters of color only.

Charles Alan Wright:

And that the basic legal facts are perfectly clear in the record that he was indicted in April of 1960 in Harris County for a crime allegedly committed in May of 1959 that as of that time he was a federal prisoner that the Sheriff of Harris County wrote to Leavenworth and was advised that he would not be released until 1970.

The beginning at least in March of 1961, the petitioner has made repeated request to have a speedy trial that he has not been brought on for trial at any time that there has now a lapse some eight years and that the time is long since past when it is possible to give the petitioner the kind of trial to which he’s constitutionally entitled.

So that in our submission, the writ was providently granted and the record is ample to decide the matter that is before you.

The record in addition to being skimpy is somewhat informal.

The petitioner addressed his writ of mandamus in the state court to a non-existent court, the Texas Criminal Court of Appeals and it was transferred by that court informally to the Texas Supreme Court as the Texas Supreme Court has jurisdiction in these matters.

The Texas Supreme Court entered no formal order instead the administrative assistant to the court wrote to the petitioners saying that the, “Your petitioners today have been denied” Referring to the Cooper case and the Lawrence case as authority for the denial.”

But the mere fact of informality in the state court proceedings does not mean that we have any less a final judgment of the highest court of the state in which decision can be had.

I refer and hold the case of In re Summers for example in 325 F.2d in which was a letter from the Chief Justice.

That the Secretary of the Illinois Bar Committee that was the definitive action of the Illinois Court and this Court held nonetheless that it had — that that letter was a sufficient — were definitive act to permit review under Section 1257.

Potter Stewart:

Mr. Wright, the record, fit as it is does seem to show that your client was told that he could be tried within two weeks anytime he made himself available that —

Charles Alan Wright:

The record certainly shows that.

Potter Stewart:

And as I read the response of this case from the Solicitor General appearing on pages 32 and 33 of your brief.

He indicates that if the prisoner himself if somebody situated as is your client himself requested the Bureau of Prisons will arrange to make him available for a state court trial.

I’m referring to the — a full paragraph in the middle of page 33 and he further says that the petitioner did not request any assistance from the United States Bureau of Prison in this case.

Charles Alan Wright:

Yes.

Potter Stewart:

Is that all correct?

Charles Alan Wright:

That’s — to the best of my knowledge, it’s correct, Justice Stewart.

Potter Stewart:

And then it’s indicated — that would seem to indicate that he could have at least try to make himself available and probably would’ve succeeded and then the Texas Court has said, “If you do make yourself available, you’ll be tried.”

Charles Alan Wright:

I would read it somewhat different with respect Your Honor it seems to me that what General Griswold has said there is that occasionally this has happen to the instance of the prisoner.

But that a prisoner not later than law can hardly be expected to know that this procedure was available.

He was doing but to him where the obvious things.

He was beseeching the Harris County authorities with motions and letters of various cons as been told in the response.

That under the published rules of the Board of Prisons, the prisoner is not advised that, “If you’ll ask us we will come to your assistance.”

Instead the rules speak only that a prisoner will ordinary be made available if the state authorities requested.

And I think that it would be asking a good deal to say that the petitioner has waived any right he had because he did not pursue a remedy that even a reasonably observant person would not have known existed.

Potter Stewart:

I have one other question about page 33, it’s the final sentence of the Solicitor General’s letter, is there are “not” omitted there?

Charles Alan Wright:

There is “not” omitted there.

You will see that the “not” appears at page 25 of our brief where we have quoted it but here in the appendix, it was omitted unfortunately under the procedure in indigence cases counsel do not get to proofread the briefs.

Potter Stewart:

So that you’d say it does not appear?

Charles Alan Wright:

That is what I should say, yes, it’s what the original file says.

Byron R. White:

What was the — as the — do the federal authorities mean to indicate that if the prisoner himself requested they not only would make him available but make him available at their expense?

Charles Alan Wright:

I do not — do not gather that though I don’t think that what is said here is definitive one way or the other.

I — as I read this, what the Solicitor General Griswold is saying is that occasionally if the prisoner asked us, we’ll write to the local prosecutor and say, “If you ask for writ of habeas — if you get a writ of habeas corpus at prosequendum in your state court, then we’ll make this prisoner available so that you may try him.”

I do not think it is saying at all that the United States is acting simply on the request to the prisoner whether the prisoner at — in Harris County and say, “One state authority, here he is, go ahead.”

Byron R. White:

Well, what if such a writ is issued the instance of the state authorities, what happens then?

Charles Alan Wright:

Then the practice is that the writ ordinary would be honored the state is required to pay the expenses of transporting him and guards —

Byron R. White:

And this is precisely what Texas is not interested in doing I gather the one thing.

Charles Alan Wright:

I gather its one thing they’re not interested in doing, yes.

Thurgood Marshall:

Is it also true that the federal officials first transfer him to the nearest federal facility at their own expense?

I take it, it says on one note, doesn’t it?

Charles Alan Wright:

It says in some instances to mitigate because of the state, the Bureau of Prison has removed an inmate to a facility close to the site of prosecution.

William O. Douglas:

Mr. Wright, is this —

Thurgood Marshall:

That’s what it had done.

William O. Douglas:

— is this federal procedure formalized in anyway?

Charles Alan Wright:

Well, there is a statutory procedure for it Section 4085 and there are also rules of the Board of Prisons that are issued from time to time.

A bulletin that comes out now and again that is made available to state authorities who inquire telling exactly what the procedure is.

Earl Warren:

That contemplates the state will make the application, does it not?

Charles Alan Wright:

Yes.

Thank you, Your Honors.

Earl Warren:

Very well.

Mr. Moss.

Joe S. Moss:

Mr. Chief Justice and may it please the Court.

There is absolutely no issue here about the right of this petitioner to a speedy trial.

I, as a representative of the prosecution in the concerned jurisdiction, Harris County of the State of Texas, have long thought that it’s absolutely outrageous to keep things like this hanging over the heads of prisoners who are incarcerated under the jurisdiction of other sovereigns whether it be a state or other federal government.

Likewise, I fully realize as Your Honors have noticed in some of your recent opinions that it is a matter of common knowledge that people charge with crime rarely want a trial at all and if they must have one they hardly ever want it to be speedy.

Delay as it operates to the disadvantage of the prosecution and to the advantage of the defendant petitioner here because the memories of witnesses dimmed and that necessarily affects the burden that the prosecution must bear in establishing the guilt.

Bearing that in mind, we are here today concerned with a remedy.

We are going to try to find out if the failure of this man to have a speedy trial has denied him his constitutional rights and if it has the next question is, did he waive it?

As we know is being done everyday in cases generally.

As an illustration from Harris County, Texas, there are probably 40 or 50 arrests a day made on the basis of searches and seizure without a warrant where the person affected give his consent to the search and seizure which is of the Constitution of our country not required to do.

Joe S. Moss:

He waived his rights.

In this case, did he waive it?

Ewell by this Court some three years ago says, whether the delay alone amounts to the constitutional deprivation of the right, it’s a matter to be determined in the first instance in the trial court that any argument to the contrary in this Court is premature.

And that this Court would not pass on it until such time as the sentencing judge in the lower court had heard the facts.

In this case, the record — let me say has been prepared by stipulation only.

And I certainly compliment the gentleman at the great effort he has made to get it here and I’ve agreed with him on every term.

Not one time have I disagreed with any stipulation he wanted, not at one time has he disagreed with any the highest court, even as late as today in order to correct an understatement in the brief.

The prosecuting authorities of the State of Texas never knew anything about this procedure in the Supreme Court or in the misnamed Court of Criminal Appeals of Texas until after the application for writ of certiorari was filed in this Court; the Supreme Court of the United States.

If you read the records, you will find that the denial of the relief in the Supreme Court of Texas was on June the 21st last year.

I mean it was filed, the petition was filed then and the denial was on the 28th and I have a notice in my file here to show in counsel that it wasn’t actually mailed down there until injunction of case worker from the penitentiary cede it on June the 22nd.

Byron R. White:

What was the writ — what was the action of law — in the — this was a petition for writ of mandamus?

Joe S. Moss:

Yes sir, to mandamus to trial judge to dismiss the indictment because he have not a speedy trial after seven years which he in truth and in fact have not had it and which he in truth and in fact was entitled to if he had not waived it.

Now, so we know that five or six days elapsed between the time that this thing was filed in the Supreme Court of Texas and the decision came down and we have no notice on it.

In August of the same year, the petition was filed up here and we did get notice of it and also at that time of the former proceedings in the Supreme Court.

Let me say that in the appendix here prepared by eminent counsel, the petition itself has contained in the appendix does not show that you verified and it does not show that contains an affidavit of indigency or poverty as we call it in Texas.

The Texas courts hold indigency the same as it is to one else.

There is no price on the remedies down there, but he must make this oath and in this particular case, he did not do so even though in my brief with the respondents.

I invite the attention of the Court to the facts that the copy furnish me in my office did contain this affidavit and did contain the verification of the facts.

But that was not sufficient to put jurisdiction into the courts of Texas to prosecute him for perjury by merely giving me a copy.

It has to be filed in the Court which he studiously avoided doing.

And that is significant because he knew if he had done that that’s exactly what we would’ve done to him because we know of $42,000.00 he had in green banks and other matters that are not in the record.

Even the sentence he served at the present time is — we had his counsel said, we don’t know what that is.

We’re not concerned with it but what are we going to do about it?

If this petitioner had been tried in Texas at any time rather than a mistrial only three things could happen.

He could be acquitted, he can be filed guilty and his sentence ran concurrent with the federal sentence, or he could have been filed guilty and the sentence has been cumulated with the federal sentence.

In the brief as the member of the Bar of this Court I respectfully represent this Court cumulation is rarely done by the judges in Harris County.

It has to be an extreme matter before it’s done.

But in Ewell this Court said, they’ll take that up later on and see what the judge does.

So, with approximately five more years jurisdiction of the custody of this prisoner vested in the federal authorities.

It conceivably could be that he would receive a sentence that would be expired by the time the federal government gets through with it and be release and have no more even if we try to.

Joe S. Moss:

Likewise, the converse is true if we wait until the five years and then try it.

Under the law of Texas, if he received 10 years which is the maximum he could receive under the indictment.

The trial judge has the discretion to give him credit for the time he is already served in some other penitentiary.

And you can see if he did that which I represent to this Court is almost always uniformly done then he has not suffered any loss of any right; constitutional or otherwise.

On the other hand, if it is cumulated then the serious question comes up and as we said in your — that should be decided whether that has having the effect on it should be decided after the trial judge has had a shot at him.

Now, as to when we get him and try him can only be one of two occasions.

It can be while he is in the custody of United States and let us see what that’s going to intake expenses with two marshals down there in back exact words of it being for the subsistence and shelter of the prisoner and the deputy marshals during the entire time of their absence from headquarters.

As Mr. Justice White observed that if what State of Texas cannot afford to do they just don’t have the money but I think in all candor —

Thurgood Marshall:

Is Texas broke?

Joe S. Moss:

Sir?

Thurgood Marshall:

Texas is broke?

Joe S. Moss:

Not Texas, Your Honor it’s the county under our Harris County.

Thurgood Marshall:

Harris County broke with all of those skyscrapers?

Joe S. Moss:

Absolutely, it went up the movement Texas 4.7 last Friday and I think now there’s a movement on to get that rescinding.

But the chance is still good.

I’ll have to say that in the Court.

I have made to discount my script.

The cheap sheets are still valuable.

Earl Warren:

But Mr. Moss —

Joe S. Moss:

Now —

Earl Warren:

I suppose if you — if you needed a witness or two from the same state to convict him, you would find the money, would you not to bring on there?

Joe S. Moss:

Very rarely.

Where he is in the — oh, we would, yes, the answer to your question is yes.

We would if we want.

We have we have no — it’s no — it seems to be a better —

Byron R. White:

If you want to — and if you want to expedite a rich prisoner from New York (Voice Overlap), then you pay his expenses?

Joe S. Moss:

Yes, sir.

Byron R. White:

Even if he’s got $42,000.00.

Joe S. Moss:

Oh, Your Honor, we wouldn’t (Inaudible) other thing in that (Inaudible).

Byron R. White:

It’s what I thought.

Joe S. Moss:

Yes sir, we get him when we want him.

We just don’t want this fellow until we can get him.

And after —

Now, the day that that warden says to us, “You come up here and get him; you can have him we’re going to be there with the money and the pistols and the handcuffs.

And we’re going to take him back to Texas and we go to somewhere that is unless Your Honor says no.”

But you see there we don’t have to feed his guards and we don’t have to pay their expenses but to and fro.

We would just send an officer — two officers and they bring him down there, of course it’s much cheaper.

Now, it’s all been said and I can concur with the saying that there is no price on constitutional rights but in this case there is a question of who’s going to do the paying.

That is to say is it going to be the petitioner, is it going to be the State of Texas or more properly stated by Mr. Justice Marshall, the county or is going to be the United States Government or is it going to be a combination of two or more.

The Congress says that these prisoners can be delivered by the Attorney General after request of the executive authority if he finds it in the public interest to do so.

if you brought him down there, I’ll have serious doubts which have jurisdiction of him within the meaning of jurisdiction.

I don’t believe there’s any such thing as about a percentage of jurisdiction, he either have it ir you don’t.

And if the Texas courts are down there trying to litigate with the prisoner that’s in custody of the federal authority have some doubts if that would constitute jurisdiction, it might be 90% jurisdiction but apparently no such thing exists.

Now, if we are allowed at anytime.

Now or later to try the this man at anybody’s expense, it may well turn out if that shown that he has not been deprive of a thing, that his sentence may well had been served.

He can get his —

Byron R. White:

Oh, I take that his petition for mandamus in the court below in the Texas Supreme Court asked in the alternative for a trial for a prompt trial or dismissal of the indictment.

Joe S. Moss:

Yes, sir.

Byron R. White:

Made no allegations that as of that time, he had never been denied his speech?

Joe S. Moss:

That is true.

And in the record here before you, you will find that the Solicitor General agrees with us that admittedly upon notice of this procedure, and that which came simultaneously on our part on the federal, I think, there was three days difference in it.

I might say in all fairness, it’s about a two day delay because of what I call the inefficiency in our old office, but anyhow we got them about the same time in August of 1967.

We immediately responded to their petition, sent a copy to the Solicitor General and to the Attorney General with the thought that both of these people, bearing in mind that this petitioner is jointly invalid with one of his co-defendants, named Taylor who is in the Atlanta Federal Penitentiary and seeks no relief, he don’t want to plea for trial, Your Honor.

The Attorney General gave us both, so we wouldn’t have to have two trials, we might try them all at the same time.

My solution to this thing in the prayer that I respectfully present to you is that this be remanded to the state court in some fashion, either to the Supreme Court to develop the facts and get them up here so we can understand what rights he may have been denied, whether it’s the absence of witnesses or the unlikelihood of contrary of sentences of what it may be or if that’s not satisfactory with the court that it be remanded in some fashion back to the trial court with the instructions to the State of Texas to try him within the reasonable length of time, even if they do have to spend the money.

We’re getting down there and see.

Now, he has not come in to this Court with clean hands.

He did not file his affidavit of indigency down there at any court, no way he did file it with me and I have it here in duplicate and original.

But that does not give the state courts authority to indict him and try him for perjury which is what we would do because he that man has got the money, and did have it, and we want to know what the law of Texas what’s become of it.

Earl Warren:

What do you have to say about Professor Wight’s argument that he’d been entitled to this remedy, whether he is with some millionaire or whether he is a pauper?

Joe S. Moss:

I agree with him a 100%.

Earl Warren:

Well, then what is the relevance here, the argument you’re just making about he has made no affidavit of indigency?

Joe S. Moss:

The relevancy of the argument is that the sovereign State of Texas still has control of her courts and the amount of time that her judges and so on operate and work and perform their duties.

And one of the requirements of the State of Texas is that a man that’s able to do so pay the cost of his procedure, I’m going back to mandamus procedure here.

And that if he does not have the money to pay it, he can just simply make an affidavit and still get the same relief.

And in this case, this prisoner studiously avoided that because he knew we’ve got proof of what he did with $42,000.00, and then when he had it.

That has no bearing on his guilt of the theft his charged with, it has bearing on the fact that he has committed a fraud upon this Supreme Court of Texas by sending a petition down there without any affidavit of indigency, and then file in one up here where we clearly have no jurisdiction of prosecuting a perjury.

Earl Warren:

Well, suppose he admittedly, he was a wealthy man and he made the demand for speedy trial and —

Joe S. Moss:

Then we would say, don’t spend your money, get out of here, goes to prison authorities would say, “We have a benevolent attitude towards you.”

So says the Solicitor General, any time you can pay the expense, we’ll take you down there and he can use the word private party of the prison rules.

Certainly, he’s a private party of not an absolutely in dispense to be necessary.

Counsel says we’ve ignored this request for a speedy trial have not been notified and every time that we try him within two weeks in the time we get here.

Then when he said he’s indigent about a year ago, a little over a year, we then undertook to get to Attorney General deliver to it.

I might say with all candor, that statute says that the Governor or Executive Authority of the state must make the request.

I don’t know whether the District Attorney’s office is the Executive Authority within the contemplation of Congress, but at least I representing the District Attorney’s office did send it to the Attorney General and Solicitor General asking to give his both of, so we can tried the both to get it over.

William J. Brennan, Jr.:

Mr. Moss, may I ask, I’m looking at the prayer of — at which you close your brief and says that, since the record is insufficient to permit decision that we should do one of three things as I read it.

Joe S. Moss:

Yes, sir.

William J. Brennan, Jr.:

Dismiss the writ of certiorari and probably be granted, hold it to all relief prayed for the petitioner to be denied.

It’s the third one that interests me, or that the cause be remanded to the Supreme Court of Texas for proceedings therein or in the state trial court for the development of the facts.

Joe S. Moss:

Yes, sir.

William J. Brennan, Jr.:

Now, what are the facts that we should be develop?

Joe S. Moss:

Facts developed was whether or not he has been deprived of these asserted constitutional rights —

William J. Brennan, Jr.:

I mean, if we’re going to bring him in for that kind of hearing and as Mr. Justice White pointed out his petition was either for a trial or for dismissal of the indictment, why not send them back to you and let it be brought there for the trial on the new merits?

Joe S. Moss:

Oh, I’m sure it be done if Your Honor so ordered, but you bear in mind, we don’t have the United States Government of the party to this suit.

He’s filed the lawsuit against the district judge is going to preside over his trial if we haven’t get him, and there’s nobody else.

Thurgood Marshall:

A Government has made it clear that if you go to the U.S. District Court in Houston and get a writ a habeas corpus, it will be honored and he will be delivered, the only question you picking up the bill.

Joe S. Moss:

I might do a one step beyond Your Honor, agree with you and go on to step further that they leave manner one from a state judge.

I know of the matching practice.

Thurgood Marshall:

It’s alright.

Joe S. Moss:

Yes.

Thurgood Marshall:

Well, why not do that?

Joe S. Moss:

I’m perfectly willing to.

Thurgood Marshall:

Well, that’s the end of this lawsuit.

Byron R. White:

Except for the bill?

Joe S. Moss:

No, we’ll do that now.

Byron R. White:

But you will pay the —

Joe S. Moss:

Oh, yes, sir.

You just let me know, I’ll get on that phone and have that money up in here and nothing less.

We’ll have that man back down there and tried in two weeks, but we tried and quicker now if we thought we can save that money.

Byron R. White:

Suppose — I suppose his first offense would be that he’s been denied a speedy trial.

Joe S. Moss:

Well, he will be entitled to a hearing, all of his motion to dismiss which he filed in the trial court, which counsel says we ignored and he’s wrong, we’re waiting to hear it because this says he hasn’t been present in front of the witnesses.

So if any will get him out, we have ignored it.

We’re going to give him the hearing on that too.

And the trial judge may very well dismiss it.

If that so about —

Earl Warren:

Do you have any idea —

Joe S. Moss:

Two weeks ago in the Summer case —

Earl Warren:

Do you have any idea how many other are similarly situated —

Joe S. Moss:

I believe counsel — I agreed, it’s 15,000 and with counsel, I don’t remember exactly —

Earl Warren:

15,000?

But now, you —

Joe S. Moss:

Well, I think that’s right, I’m not going to commit here but it’s the way I remembered.

Earl Warren:

Now, you say that you would bring this man back immediately and afford him of speedy trial?

Joe S. Moss:

Yes, sir.

Earl Warren:

Does that mean that principle would you apply it also to all the 15,000?

Joe S. Moss:

Oh!

Not under our jurisdiction Your Honor.

I thought you were through (Voice Overlap).

Earl Warren:

Well, I’m — let’s say all of those that are under your jurisdiction, can you say to us that the fact that you will agree to bring him back and try and give him a speedy trial and pay the expenses incurred by it, would leave to the same kind of treatment to other people who are similarly situated from the State of Texas?

Joe S. Moss:

To the best of my ability, the answer is yes and yes, Your Honor.

Joe S. Moss:

But let me qualify it, the holder of the first (Inaudible) under our system of Government is not the District Attorney.

Earl Warren:

That’s right.

Joe S. Moss:

And subject to their approval which they have always given, as far as I know, not the association with them.

They have always given us the money to go get a witness or prisoner or any other thing, wherever want it, that have to do with the criminal prosecution by simply asking for it.

But subject to that qualification, the answer is an unqualified, yes Your Honor.

We’ll be done but I don’t know of the two or three others that are in the same shape and I know of one that’s in reverse.

We tried to follow up for robbery in Texas, and they receive about nine years I believe in Arkansas wanted him to try to give him the death penalty.

So, we shipped him up in Arkansas with an agreement that if they don’t give him the death penalty, they will bring him back.

Byron R. White:

Well, then there’s no issue have left here for adjudication.

Joe S. Moss:

As far as I see it, no sir.

Byron R. White:

And that of —

Joe S. Moss:

Subject to that qualification now, if they don’t give us the money, we have properly notify this clerk in this Court and you can issue the writ whatever you want to order him to do because they’re not part of the suit.

It makes this Court and our Board of Directors have given.

And I’m authorized to state based on previous experiences that they certainly will do it.

Byron R. White:

Now, if we just — based on your representation here in open court, we just remanded the case for further proceedings.

Joe S. Moss:

Not inconsistent, I believe —

Byron R. White:

Without any opinion or anything else.

I mean without an adjudication of the constitutional it should be.

Joe S. Moss:

Indeed.

And then do it after the trial —

Byron R. White:

Then what would you do?

Joe S. Moss:

— you see that could very well be dismissed.

I have every belief that that trial judge particularly this one is going to dismiss it on the motion only you’ll have me tried.

I think you’d be brought dismiss and brought right back to federal court, I mean the federal penitentiary.

Byron R. White:

Dismiss on the grounds of the delay?

Joe S. Moss:

In other matters, we have a pretrial stuff down there, there’s roughly equivalent to the federal criminal rules and we got from search matters and whatnot timely supressions of what (Inaudible) other than go out on that ground but if not on the constitutional ground.

But in any event I’m going out the record sale as this is not —

Abe Fortas:

But Mr. Moss, I wonder if they aren’t some further complications here.

For example, here’s a man who’s in the — under federal sentence and is serving time in the federal penitentiary.

He is also under state indictment.

Abe Fortas:

He says as I recall that because of the pending state indictment, my treatment, what happens to me in the federal penitentiary is affected.

He also says that my possibilities of getting out on probation are affected.

And I wonder if this may affect of course Ewell, but I wonder if there isn’t something to the point that as use indicator when they started off that state court indictment hanging around for seven years does raise a substantial question which can’t quietly dispose off by saying that just let the man wait until it gets out of the federal penitentiary and then is brought to trial in the state.

Joe S. Moss:

I’m going to agree with you, Your Honor.

Abe Fortas:

I beg your pardon?

Joe S. Moss:

I agree, it does affect this treatment in the prison based on what I’m told, I’ve never had the connections with the mother and just through my official position, but I know from the talking to other prisoners that it does, and I know that it has a bearing from actual experience, don’t have a bearing with the party attorney.

As to what other charges were pending, what others he had behind him, it does have a bearing.

But please don’t penalize the State of Texas, they are not doing that to him as the federal is doing it.

Byron R. White:

And in any event, you’re going to get to the trial, you’ve given him one of the prayers, one of the alternative prayers of his petition in the state court.

He wanted either a trial or dismissal?

Joe S. Moss:

Well, I believe here, he just asked for dismissal if I remembered it correctly.

Well now as I understand it, Professor Wright’s brief merely asked for reversal, so where its closest.

Joe S. Moss:

Whatever he wants, l believed we gave him all in the trial.

Just said it should be reversed which has the effect of putting it back in the Supreme Court of Texas whereas here, he would have an opportunity to further develop —

It’s the only before us I gather, is the other of the Supreme Court of Texas denying the writ of prohibition.

Joe S. Moss:

Those are writ of mandamus.

Oh, writ of mandamus, I’m sorry.

Joe S. Moss:

Yes, sir.

That’s the only thing.

That’s the only order before us.

Joe S. Moss:

Yes sir.

And if the (Voice Overlap) —

Oh, we can do I guess.

Joe S. Moss:

— assigned by the administrative assistant who has no such authority, but I’m not raising that at all.

But if we —

Joe S. Moss:

After the fact they received, we submitted down there they just turn them over this assistance.

You mail it to him back with that letter attached to them.

I noticed they did gave him docket number 10 in that particular day.

We’re getting large writs down there now, in the way pay of habeas corpus and process them though in mandamus.

But for writ, the prisoners today here are better educated.

Joe S. Moss:

They were to down there (Inaudible) law libraries, all of which I’m in favor of.

This prisoner here represent himself pro se, (Inaudible).

He really put it in me.

He didn’t miss a thing.

States — the respondent, Judge Hooey whereby the decision of the court of course, asking to send it back in order to do something and decide under Ewell whether he’s been denied his rights.

Thank you.

Earl Warren:

Mr. Wright.

Charles Alan Wright:

May it please the Court.

I think I should speak immediately of the question of what the relief is that has been asked since there is apparently some concern about that.

The only relief that petitioner asked for, for the Texas court was that the indictment against him be dismissed.

That is all that is before you in this proceeding.

I call your attention to the final paragraph of the petition for mandamus, reprinted at page 4 of the brown appendix.

Now at prior time since March 17, 1961 according to the record, he has asked variously either for trial or for dismissal, but the present proceeding is a request for dismissal only.

That of course does not foreclose what this Court may do.

May I ask you, Mr. Wright?

Charles Alan Wright:

Yes, surely.

What is it that this quoted in at page 6?

What is that?

Charles Alan Wright:

That is the case of Lawrence v. Texas.

The opinion —

That’s not this case?

Charles Alan Wright:

That is not this case, no.

The —

Why is it in here?

Charles Alan Wright:

The letter from the administrative assistant of the court said we cite you the Cooper v. State and the Lawrence v. State, we are enclosing a copy of the per curium opinion in the latter case.

In fact, I think — as a matter of personal privilege, I will say that I did not include the Lawrence opinion as a part of the appendix to be printed but somehow it showed up in the printed appendix.

Potter Stewart:

But it was added an enclosure in the —

Charles Alan Wright:

It was an enclosure with the letter, yes and I submit —

William J. Brennan, Jr.:

Now, just so I’m clear.

Charles Alan Wright:

Yes, sir.

William J. Brennan, Jr.:

So what we’re talking about then is what appears at page 4, right?

Charles Alan Wright:

That is correct Justice Brennan.

William J. Brennan, Jr.:

And there you did ask dismissal of the charge, right?

Charles Alan Wright:

Petitioner asked that.

Thurgood Marshall:

Professor Wright, there’s no showing of prejudice in this record, am I correct or not?

Charles Alan Wright:

That is correct, except —

Thurgood Marshall:

Well, wouldn’t this be brand new law?

Charles Alan Wright:

I think not.

I think that’s what Klopfer held.

Thurgood Marshall:

What?

Charles Alan Wright:

I think Klopfer v. North Carolina, there is not a word in the opinion about prejudice.

Thurgood Marshall:

Well did this — what effort did this man make to bring this to Harris County’s attention, prior to this?

Charles Alan Wright:

The allegation in the petition for mandamus is that on November 3, 1960, petitioner felt that the respondent court has motion for speedy trial which motion was completely ignored by the respondent — the county prosecutor and for over a period of six years, petitioner has attempt to gain a speedy trial.

The response on behalf of Judge Hooey to the petition for certiorari was that by latter date of March 17, 1961, petitioner request that the speedy trial and reply thereto was notified that he would be afforded the trial within two weeks of any date, petitioner might specify which he could be present.

Since that time by various letters and more formal so-called motions, petitioner has asked either for speedy trial or dismissal of the indictment.

Thurgood Marshall:

No formal actions, just letters?

Charles Alan Wright:

Letters and more formal —

Thurgood Marshall:

Well, what about this?

Charles Alan Wright:

— so-called motions.

They’re described by the respondent.

Thurgood Marshall:

What about the state’s suggestion that they have a hearing to see whether there is any prejudice?

Charles Alan Wright:

Well, a hearing is required only if prejudice is an element of the Sixth Amendment claim.

I am perfectly prepared to argue that it is not and that we do not want to entangle speedy trial in a Betts versus Brady type of role.

Abe Fortas:

What about Mr. Moss’ point Professor Wright that there ought to be a trial here to ascertain whether there has been a waiver?

I suppose that could be a waiver of the right to speedy trial.

Charles Alan Wright:

Oh, I’m prepared to concede that there can be, yes.

Abe Fortas:

And as I understood, Mr. Moss, he was suggesting that trial is necessary here to or hearing is necessary in the record that at which a record can be made to test out whether there has in fact been a waiver.

Charles Alan Wright:

Perhaps I misunderstood Mr. Moss’ argument.

I certainly agree that his argument is as you said that it was Justice Fortas, but I understood that to be in the context of his argument about indigency that if Smith had funds and did not make him self available that then he had waived.

Now, if his solvency or indigency is relevant, then I quite agree that there could have been a waiver, and that that would be fact issue.

Charles Alan Wright:

I submit as a matter of law that a solvency has never whatever to do with it, and that if that is correct, then, there is no possibility of a finding of waiver on any other ground.

When the respondent agrees that my client has repeatedly for more than six years been trying to assert his right to a speedy trial, we can hardly say that there has been a knowing involuntary relinquishment of known right.

Thurgood Marshall:

But Professor, would this have mean that every federal prisoner alive, all state charges drop against them?

Charles Alan Wright:

No.

Thurgood Marshall:

Why not?

Charles Alan Wright:

It would mean that any prisoner whose trial had been delayed so long that it can be said that it is no longer possible.

Thurgood Marshall:

What would be the cut-off date or the number of years?

Charles Alan Wright:

I think that that something that can be decided only by case to case adjudication.

But that whatever number of years —

Thurgood Marshall:

Well, everybody —

Charles Alan Wright:

— is the right time that this is too much.

Thurgood Marshall:

Everybody has been in seven years.

All state charges will have to be dropped.

Charles Alan Wright:

That would be the effect if you held as I submit that you should and if you further held that the decision was fully retroactive.

Thurgood Marshall:

Is there any statute in Texas concerning the time within which a man should be brought to trial?

Charles Alan Wright:

Not so far as I’m advised.

Byron R. White:

Mr. — Professor Wright, as long as in Texas we’re still refusing to try a man and said we’re not going to try him as long as he’s in custody, there might be some pretty solid basis for saying that he is being denied his speedy — his right to a speedy trial.

But if Texas is now willing to try him in order to dismiss the indictment, you have to conclude that as of this date, he’s been denied a speedy trial, would you?

Charles Alan Wright:

In order to dismiss the indictment, you do, yes sir.

Byron R. White:

And your argument apparently is that the — you just don’t need any facts, seven years is just long enough in anybody’s book?

Charles Alan Wright:

Yes, sir.

Earl Warren:

Well furthermore, haven’t he asked for a speedy trial?

Hadn’t he asked for a trial a couple of years ago?

Charles Alan Wright:

Oh, yes, apparently.

Earl Warren:

Well, that is something more in your case it seems to me.

Charles Alan Wright:

I think it is —

William J. Brennan, Jr.:

Just a technical point, Professor Wright?

And this was a writ of mandamus.

Charles Alan Wright:

Yes, sir.

William J. Brennan, Jr.:

Suppose we agreed with you, what does the reversal mean?

William J. Brennan, Jr.:

Do we order the Supreme Court of Texas to issue that a writ of mandamus that he tried to?

Charles Alan Wright:

Well, I suppose if what you would do would be following the usual practice and reverse and remand for further action not inconsistent with your opinion.

William J. Brennan, Jr.:

Teach him, would it do any good?

Charles Alan Wright:

Well, the question would be what you say in your opinion, and therefore what action by the Texas court will be not inconsistent.

William J. Brennan, Jr.:

What the (Inaudible) I wonder if this is 2283 problem?

Charles Alan Wright:

It hadn’t occurred to me if it was.

William J. Brennan, Jr.:

Well, that’s — well, most likely.

The Court of the United States, that includes this Court —

Charles Alan Wright:

Yes.

William J. Brennan, Jr.:

May not grant an injunction to state proceedings in the state court for certain sentences.

What’s the effect of our ordering the Supreme Court of Texas to grant a writ of mandamus to a trial judge?

Charles Alan Wright:

Well, you did that to the Supreme Court of Texas in the case of Hickman versus Dean, I believe.

The only instance I know of them which this Court is issued mandamus to a state court.

William J. Brennan, Jr.:

Nevertheless, you are and would be in effect ordering simple proceeding not to go forward?

Charles Alan Wright:

Oh, this Court does that all the time, doesn’t it?

It seems to me that is precisely what you do.

William J. Brennan, Jr.:

Well, you do unless you do a criminal case.

Charles Alan Wright:

Yes.

William J. Brennan, Jr.:

(Inaudible)

Charles Alan Wright:

Oh, that I think is a question in the first instance of Texas law, what is the proper remedy here?

And Texas law state ex rel Moreau v. Bond regards mandamus from the Supreme Court as the proper way to assert a right to a speedy trial in the criminal case.

It is a rather confusing set of affairs, but that’s the way it is in Texas.

I would think Mr. Justice Brennan in response to your question that what this Court would do if it agreed with both my brother and myself on the underlying issue.

At a minimum, you would say — you would hold that the Texas Supreme Court is wrong in the proposition of law announced in Cooper and at Lawrence, that the mere fact the person is in federal custody, discharges any obligation the state has.

But this would be the minimum you would do, and then the state court freed from the compulsion of erroneous view of federal law might be free to decide for itself whether or not it wants to order dismissal or whether it wants to leave prejudice still in.

I don’t think that is all that this Court has the power to do or appropriately could do on this record.

I think that the question of the proper remedy to vindicate the right to a speedy trial is ultimately a federal question therefore, one in which this Court can speak authoritatively.

And I think that whether or not a showing of prejudice is required or whether or not untoward delay at some point become so bad as simply by itself.

It requires dismissal is also a question that this Court is competent to decide.

But anyone of those things which still in form be a reversal in my submission of what the Supreme Court of Texas did.

Charles Alan Wright:

And it would be simply be a question of how much guidance this Court chooses to give Texas for its further proceedings not inconsistent.

I must say that the worse possible disposition of the case, and I have to submit this with the utmost respect would be to say that in the light of the very commendable statements that Mr. Moss hear in open court that the case could be dismissed without opinion.

I have no doubt in the light of what Mr. Moss has told us that thereafter persons in this situation in Harris County would be given a speedy trial.

Mr. Moss is only one of 254 prosecutors in the State of Texas alone, and as he quite properly said he cannot bond other prosecutors.

He cannot bond the Texas courts.

Indeed, I remind you with some poignancy of the case of Bush v. Texas decided here in 1963 in which this Court in effect remanded without deciding the merits of the issue on the basis of a representation by an Assistant Attorney General and unfortunately, the Texas Court of Criminal Appeals refused to agree that the Assistant Attorney General had power to make the representation and Bush was vindicated only after long and elaborate further litigation.

I think we have here a constitutional issue that is not going to go away.

The number of prisoners so situated is very great and that there is that this service to the states, if the issue is not decided on seven different occasions.

I have myself been appointed counsel by the Texas Supreme Court in cases raising the precise issue with the hope that I can get them here and get them out if decided.

Now, this time, as it happened the prisoner, got the case here on his own and viewpoint of —

And what law (Inaudible)?

Charles Alan Wright:

No, they all became moot before I could get a petition for certiorari to you.

That’s the way that these things unfortunately often go.

Thank you.

Abe Fortas:

Mr. Wright, I wonder if you might care to say something about Mr. Moss’ argument that we should wait and tell after the prisoner has been tried, has been brought to trial in Texas because the Texas court itself might at that time dismiss in response to motion based on the absence of the speedy trial, or something else might happen that would dispose of the case.

In other words, the question is whether this in effect is not premature.

Charles Alan Wright:

I submit Justice Fortas that the guarantee of a speedy trial is not limited to giving you at a trial at the time when you can be acquitted, when you have your witnesses that it protects against other harms.

And that even if at the end of his federal term, my prisoner were to be turned over to the Harris County authorities and we’re successfully to move for dismissal because of denial of the speedy trial that he would have been adversely affected by the pendency of this charge because I don’t — that’s all it is inside charge against him during the time that he’s been in the federal penitentiary.

Potter Stewart:

I don’t believe that the suggestion was that we wait until the end of his federal imprisonment.

But that right now, forthwith in the very near future, he be brought before the Texas trial court where the motion that he has launched there could be heard and decided.

And according to Mr. Moss’ prediction, which of course doesn’t bind anybody, but he ventured the guess that the judge would dismiss the indictment.

Charles Alan Wright:

Perhaps it would.

If he were to do so without more, I think it will be a surprising action on the part of the respondent judge when the law in Texas authoritatively declared twice in the last two years, is that federal imprisonment is an adequate excuse for not giving the speedy trial.

It would — it think and not be a — it would be a lawless act really if a Texas —

Potter Stewart:

Oh, we might — he might dismiss it under the grounds too?

Charles Alan Wright:

Well, there might be other grounds, yes.

Potter Stewart:

It had been suggested that there are other possibility.

Charles Alan Wright:

Yeah, it has been suggested, I’m not personally cognizant of what there might be.

Earl Warren:

I suppose Professor, if we just remanded this case to the Texas courts without meeting the constitutional issue and they just dismiss the case, that this constitutional question would go down to drain, wouldn’t it?

Then, we never would have it determined.

Charles Alan Wright:

You wouldn’t have it determined in this case —

Earl Warren:

That’s what I mean.

Charles Alan Wright:

It would be right back in some other case to plague you.

Earl Warren:

Yes, I know but we’ve got it here and you say that it’s properly here and if it is here, it wouldn’t be fulfilling our function would it to just return it to the Texas court where it could be dismiss without resolution of that issue?

Charles Alan Wright:

That would be precisely my submission Mr. Chief Justice.

I would not urge this Court to decide a constitutional issue prematurely, but at the same time, I do not think that Court can shrink from the responsibility of deciding constitutional issues when they have been properly put before the court.

Hugo L. Black:

And I suppose if the federal government decline to give the state prisoner, that would be a good excuse, would it not?

Charles Alan Wright:

In my submission if would be, yes.

All that we think, the obligation of the state is to make a reasonable effort to get the prisoner.