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
Media for Smith v. Hooey
Audio Transcription for Oral Argument - December 11, 1968 in Smith v. Hooey
Number 198, Richard M. Smith, petitioner versus Fred M. Hooey, Judge, Criminal District Court of Harris County, Texas.
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.
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.
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.