Stiles v. United States

PETITIONER:Philip Jerome Stiles
RESPONDENT:United States
LOCATION:Bethlehem Steel Corp. High Pier

DOCKET NO.: 74
DECIDED BY: Warren Court (1967-1969)
LOWER COURT:

CITATION: 393 US 219 (1968)
DECIDED: Dec 09, 1968
ARGUED: Nov 20, 1968

Facts of the case

Question

Audio Transcription for Oral Argument – November 20, 1968 in Stiles v. United States

Earl Warren:

Number 74, Philip Jerome Stiles, petitioner versus United States.

Mr. Rogers.

Charles J. Rogers, Jr.:

Mr. Chief Justice, distinguished Justices of the Honorable Supreme Court of the United States, I would like to indicate at the outset for the record that I would like to allocate my time in 20 minutes for argument and reserve 10 minutes if possible for rebuttal.

Earl Warren:

It’s alright.

Charles J. Rogers, Jr.:

Thank you Mr. Chief Justice.

I’d like to also for the record indicate that I was assisted and I truly appreciate the help from the Solicitor of this Court, John Knotty, III of Rhode Island.

The petitioner if it please the Court is under sentence at the present time to a term of two years, an institution to be decided by the United States Attorney General.

He was charged, tried and convicted first in the District of Rhode Island in the federal district court for a willful failure and a knowing failure to report for induction at the military forces of the United States.

The trouble of the case I feel is accurately cited in the brief for petitioner and I submit to the court that perhaps the crowning issue in this case is whether or not the defendant in that case and the appellant here did in fact have noticed of the draft notice itself.

The record I feel is replete of testimony that would clearly indicate that the petitioner in this case, Philip Jerome Stiles did not in fact receive a notice that was sent to him by the draft board from Westerly, Rhode Island.

The first contact of the petitioner had with the Selective Service System of the United States occurred on the 18th day of April 1963 wherein he filled down his application pursuant to the regulations.

I indicate to Chief Justice and Your Honorable Justices of this Court that his first communication with them subsequent thereto was on 05/17/1963 wherein the petitioner’s case advised his local selective service draft board that he would in fact be in the State of Tennessee and the transcript will indicate that this was received by the local draft board on the 20th day of May 1963.

The matter of notice relative to a receipt of draft notices has in fact been discussed on the case of Bartchy versus the United States and I submit that this is a very important case.

The case does indicate that the defendant does have a duty to promptly advice his draft board of his address but the case indicates that he is not.

In fact the client remained in one place provided even he is in fact anticipating the arrival of a draft notice.

I submit that the petitioner in this case did not in fact anticipate a draft notice.

I must admit and I do admit that the petition in this case directed communications to the local draft board that contained a language that was less than desirable from the point of view of the recipient.

However, the defendant did in fact and the appellant in this case did in fact notified his draft board that he would in fact not be at the address that was listed on his papers in the custody of the draft board and subsequent thereto he was sent an induction notice but the draft board.

He notified them by letter on January 17, 1966 and he advised the draft board that he would be away.

Earl Warren:

Now did it — in advising the draft board that he would be away from his residence, did he advise them where he would be?

Charles J. Rogers, Jr.:

If it please the Court, he did not but he did advice them that he would in fact furnish addresses if it please the Court and I —

Earl Warren:

Can he do it later?

Charles J. Rogers, Jr.:

He did, if it please the Court.

The notice was sent on the 17th day of January 1966 and the draft board properly, promptly rather on January 24, 1966 sent an induction notice to him ordering him to in fact report for induction on the 9th day of February 1966.

This notice was in fact received by a person other than the applicant.

It was received by his mother.

Additionally, I indicate for the record that it was received at an address other than the address that it was sent to.

It was sent to 10 Foulk Road.

It was received not by the applic — by the appellant but by the mother of the appellant and further than that it was received at an address other than the address of the appellant.

I submit that the —

Earl Warren:

And was it sent to the — to that address wrong — wrongly by the board?

Charles J. Rogers, Jr.:

No.

Earl Warren:

And did it — did the Board sent it to his correct address.

Charles J. Rogers, Jr.:

The Board did in fact send it to the correct address if it please the Court.

It was received by another person at a different address if it please the Court.

Earl Warren:

Well, you mean the Post Office Department wrongly delivered it to another place?

Charles J. Rogers, Jr.:

No.

No sir, I am not —

Earl Warren:

Well, what are the facts?

Just tell us the facts.

Charles J. Rogers, Jr.:

The facts briefly, Your Honor, that the communication was in fact addressed to the appellant at 10 Foulk Road and that the same was in fact received by a person other than the appellant and that the return receipt received by the draft board indicated that it was received at a post office box, Post Office Box 10, if it please the Court but a different address.

I submit further that we are in compliance with the so-called Bartchy case.

And this matter, if it please the Court, I feel is of great significance because this particular appellant has in fact done everything he could and I feel that the — I agree with the case law of this country that a person has a duty to remain in compliance with the law and I submit that we did not anticipate any draft notice that the appellant did in fact notify the draft board in advance of his departure.

Subsequent thereto, he notified the draft board from Mexico.

The transcript will indicate that he was not aware of the issuance or acceptance of the induction notice until he returned to the United States sometime after he was due for induction.

Earl Warren:

What was the notification they sent from Mexico?

What did he tell the Board?

Charles J. Rogers, Jr.:

The — the — he advised them as to an address in Mexico if it please the Court.

Earl Warren:

Where he could be reached?

Charles J. Rogers, Jr.:

Yes, if it please the Court.

Thank you Mr. Solicitor General.

The communication listed his address for the time being, as listed the Carlos Veracruz, Mexico.

It also contains a request for a new draft con to facilitate his return to the United States.

The — I feel that we have in fact in good faith adhered to the regulations the defendant’s actions clearly show an intent to comply and not in an intent to fail to comply.

The Solicitor General in his brief cites a number of cases, with most this cases, I agree.

But I submit that none of these cases permit conviction and sentence without definite knowledge, culpable knowledge.

This is not a case where we’re attacking classification.

It’s one that very simply stated if it please this most Honorable Court, we never received a notice.

I submit that all of the appellant’s conduct should in fact be taken into consideration for determination of whether or not he is in fact guilty as charged.

And while —

Potter Stewart:

Am I right in understanding that your defense, your sole defense at the trial was a defense of insanity?

Charles J. Rogers, Jr.:

No, if it please the Court.

I filed at the trial, I filed a plea of not guilty certainly and I filed the subsequent plea of not guilty by reason of insanity.

Potter Stewart:

Yes.

Charles J. Rogers, Jr.:

The record if it please the Court, I feel is replete of testimony from both sides and I’d like to deviate for a moment to explain that if it please the Court.

The record will indicate that this appellant has in fact treated psychiatrists and psychologists since the age of four.

I’ve produced qualified psychiatrists in the State of Rhode Island and I moved that the federal district judge for the District of Rhode Island permit the defendant in that case and appellant here to in fact be examined.

This motion of mine was in fact denied by the trial justice.

Subsequent thereto, the appellant was in fact examined by three psychiatrists, members of the United States Navy and was found unfit for military service.

The report of the attending physicians is contained in trial transcript and before this case begin if it please the Court.

The trial justice knew because he had the report on the record that this young man was in fact unfit and had in fact been declared unfit by psychiatrist of this United States Navy.

The prosecution and defense psychiatrist certainly differed as to the extent of the insanity.

However, I submit to this Honorable Court that both sides found that there was in fact an emotional disturbance.

Abe Fortas:

Oh, was that the issue that you were raising, the so-called insanity issue whether he was emotionally unfit for military service or were you raising a defense in conventional criminal terms that the view of the M’Naghten test or that he was unable to distinguish between right or wrong or unable to control his actions.

What sort of insanity defense were you making?

Charles J. Rogers, Jr.:

If it please the Court, at the particular time the jurisdiction in Rhode Island was following this so-called M’Naghten rule.

Abe Fortas:

Well then, does the question of whether he was or was not mentally or emotionally suitable for a military service and then being new at the M’Naghten rule except possibly that it involves some of the same criterion but the standards are quite different, isn’t it?

Charles J. Rogers, Jr.:

I agree with you, Your Honor.

Abe Fortas:

Let’s say, what fitness or unfitness has an emotional matter for a military service have to do with the issues that were before the District Court and now before us?

Charles J. Rogers, Jr.:

If it please the Court, at the trial level, it was a clearly a straight criminal defense and I filed a straight criminal defense —

Abe Fortas:

On the M’Naghten basis?

Charles J. Rogers, Jr.:

— of not guilty by reason of insanity if it please the Court.

Abe Fortas:

The M’Naghten test?

Charles J. Rogers, Jr.:

The M’Naghten test was in fact applicable at that time.

Abe Fortas:

Right.

Charles J. Rogers, Jr.:

I requested the trial justice to give to me a charge under the American Law Institute Rule.

The charge was in fact given exactly as requested, the American Law Institute Rule.

Abe Fortas:

Alright.

Charles J. Rogers, Jr.:

But my psychiatrist if it please the Court found that the applicant in this case and the defendant in that case was in fact insane.

That was his conclusion.

Charles J. Rogers, Jr.:

The examining psychiatrist and I would like to emphasize for the Court —

Abe Fortas:

Well, are you — now you’re saying insane.

In your argument, you were saying that he was unfit for military service.

Now what did the psychiatrist testified to?

Charles J. Rogers, Jr.:

The —

Abe Fortas:

He testified in terms of an American Law Institute Case test or the M’Naghten test or did he test by in terms of the military suitability?

Charles J. Rogers, Jr.:

If it please the Court, the transcript would indicate that as far as military suitability goes, he testified clearly that the defendant — appellant was not suitable.

He also have said that in his opinion that the defendant in that case, appellant in his case was not — or competent.

The United States Navy if it please the Court, the transcript would in fact indicate that they found him unfit for military service from a military point of view and even though they had but one hour to examine this young man and the transcript would indicate that there were many areas that were in fact touched upon.

They felt that there was in fact an existence, a chronic emotional disturbance with long standing if it please the Court.

The trial justice did in fact grant to me my request for charge under the American Law Institute thereby making the ALI rule, the lore of that case while the lore of the jurisdiction remained —

Abe Fortas:

You are here urging that its reversed — the trial judge may — have committed reversible error by failing to find that the judgment against the defendant should’ve been not guilty by reason of insanity.

Charles J. Rogers, Jr.:

In effect, yes Your Honor.

The — I feel that the transcript would in fact and does in fact bear out the position if it please the Court.

William J. Brennan, Jr.:

Mr. Rogers, may I ask you, I noticed you opened — you said you’re going to give only 20 minutes.

Charles J. Rogers, Jr.:

Yes, Your Honor.

William J. Brennan, Jr.:

You haven’t yet touched on the issue that I must say to you in all candors, the only one really concerns me in this case.

Charles J. Rogers, Jr.:

Yes, Your Honor.

William J. Brennan, Jr.:

And that’s one, the refusal of the trial judge to postpone the trial, are you going to get to that?

Charles J. Rogers, Jr.:

Yes, Your Honor.

I’ll address myself to that immediately.

If it please the Court, in the ordinary criminal case, many things happen.

The United States attorney had in fact argued against me in my motion to have the then defendant now appellant examined as to suitability.

Subsequent thereto, he was in fact examined at the United States Naval Hospital at New Port and we had between us a report that indicated clearly unsuitability for service.

I went on the record if it please the Court out of the presence of the jury and so advice the trial justice.

And the transcript will in fact indicate that the — and I construe the remarks of the Assistant — United States attorney as in fact being a motion to either dismiss or a motion to postpone.

The trial justice did not in fact recognize it as a motion to in fact dismiss.

I concede and I agree that this is a discretionary matter with the trial justice.

However, I submit that its error for him to fail to recognize it as such a motion.

Additionally, in that the plea of not guilty by reason of insanity had in fact put in issue.

Charles J. Rogers, Jr.:

And the fact that the United States attorney did in fact indicate that — and clearly indicated on the record that the appellant then defendant was in fact willing to submit for induction at that particular time.

And I ask the Court to bear that in mind that the transcript does in fact indicate it from the lips of the United States attorney came, the words in that he is in fact willing to report for induction.

We feel no further prosecution was in order whereupon the trial justice indicated.

William J. Brennan, Jr.:

Well, is this the situation that as you saw it at the time — if the Government were to find on an examination that he was not in fact fit for induction that then the Government is having said that those who — this examination, if the find, “I am fit for induction, I’ll be inducted.”

The Government would’ve dismissed this prosecution, is that it?

And that you wanted an opportunity to go through this examination and the trial judge refused you there to — is that what it all comes down to?

Charles J. Rogers, Jr.:

No.

If it please the Court, very briefly, my — I file my own circuit motion —

William J. Brennan, Jr.:

Well, let me ask you this.

Charles J. Rogers, Jr.:

Yes Your Honor.

William J. Brennan, Jr.:

I’m looking at this colloquy between the trial judge and the — Mr. Giron I gather represented the Government.

Charles J. Rogers, Jr.:

Yes, Your Honor.

William J. Brennan, Jr.:

And Mr. Giron says, this is the position that if this man submits to induction in all probability, he will not be acceptable anyway.

But in view of the fact that he’s willing to get down for induction, the Government would take the position and the United States attorney has recommended that there would be no further prosecution because it would really in effect, if it were a person who could be eligible for the Armed Force Services, there would be a point in going forward with it.

But insofar as this person while charged with failure to report for induction which is a serious crime, etcetera.

And then each Court says, “Well, aren’t you ready to go — are you ready to go to trial or aren’t you?”

Charles J. Rogers, Jr.:

Yes, Your Honor.

William J. Brennan, Jr.:

And then the Government had to — in effect, I thought your position was — although the Government was willing to postpone the trial and not even to go forward with the prosecution if in fact it were determined that he was not fit for induction.

The trial judge didn’t give you the opportunity to have the examination made which would determine that fact, is that right?

Charles J. Rogers, Jr.:

If it please the Court —

William J. Brennan, Jr.:

Well, is that or not?

Charles J. Rogers, Jr.:

It is not Your Honor.

William J. Brennan, Jr.:

Alright.

Charles J. Rogers, Jr.:

The examination had already been accomplished at that time and the trial justice well knew the findings of the three Navy psychiatrists at that time, if it please the Court.

This was immediately before trial.

We went to trial approximately two minutes later.

Thurgood Marshall:

Well that’s what the court — the court said, “I had seen no need of it, let’s try this case and get it behind us.”

Charles J. Rogers, Jr.:

Yes, Your Honor.

Thurgood Marshall:

Well, that’s what the judge did say?

Charles J. Rogers, Jr.:

Yes, Your Honor.

Earl Warren:

Mr. Solicitor General?

Erwin N. Griswold:

May it please the Court.

This is a troublesome case.

They say that hindsight is always 20-20 and there are at least a half a dozen points where I wished had been handled differently and might not have come here.

However, in reviewing it in our office, although there are a number of critical points, we found none where it seemed to us appropriate for officials in the Executive Branch of the Government to do anything but to present the case to the Court.

There are several critical points.

There are some issues which I think are not serious and which I will leave to the brief.

It seems to me clear for example that the defendant was not “insane” within the legal definition of that term.

That the — there’s virtually no evidence that he was insane and the jury’s verdict that he was not insane should not be subject to review.

It also seems to me clear that proof that he was “unfit for military service” is irrelevant in this particular prosecution otherwise any person who had a health impairment could simply ignore the whole —

William J. Brennan, Jr.:

Well apart — Mr. Solicitor General, from the prosecution as such, I gather that a finding that he was unfit might have a bearing might it not on the issue of whether the trial should’ve been postponed?

Erwin N. Griswold:

The question whether the trial should be postponed is another issue.

The — there was in their —

Potter Stewart:

Well, apart from the merits of the prosecution itself, it may not — as you say, that he was not fit for induction may not have been relevant on the issue of guilt or innocence.

Erwin N. Griswold:

That is what I might say —

Potter Stewart:

But it might well be, it might well matter — wouldn’t it not be relevant on the issue whether —

Erwin N. Griswold:

Yes, Mr. Justice and that is one of the two issues which I am —

Potter Stewart:

Yes.

Erwin N. Griswold:

— I’m picking out of the group.

I am simply trying now to dispose —

Potter Stewart:

Excuse me.

Erwin N. Griswold:

— of others and perhaps I didn’t make it clear it enough that that I have thought of as a somewhat different issue than the one as to whether the trial should have been postponed.

Then there was an argument about the authority of the clerk of the draft board to issue the notice and I don’t think that is an issue.

It seems to me that there are two principal places where there are problems.

The first arises out of the form of the statute which makes it a crime if a person knowingly fails or neglects to or refuses to perform any duty.

And the question of the effect of knowingly, I would point out that the indictment goes even further, the indictment says, willfully and knowingly.

The statute only requires knowingly.

I don’t know whether there’s any difference.

I think it is arguable that knowingly and that statute doesn’t quite mean perception within the mind but means what we use to call mens rea that he — the circumstances were such that he knew he was doing wrong.

Now with respect to that, it is probably clear that he did not in fact himself received or know about the notice to report for induction.

Erwin N. Griswold:

And so we do have a case in which the Government has to maintain that he knowingly fail to report for induction although he did not have actual knowledge of the notice to report for induction.

There’s a long history in this case.

Going back to 1963 when the defendant filed a printed form in which he filled out his name with the draft board in which he declared his disaffiliation from the draft system.

He was however at that time a student and the board continued his II-S student deferment.

In the fall of 1965, he ceased to be a student.

The board sent him on November 29, 1965 and ordered to report for a physical examination.

He ignored that.

He did not report.

The board, it seems to me used certain amount of calm at that time.

On December 21, 1965 they sent him a second order to report for a physical examination on January 6, 1966.

And the record is clear that he received both of these notices and that he failed to report on January 6, 1966.

On January 11th, five days later, he was declared delinquent under the regulations of the Selective Service System.

A delinquency notice was sent to him.

And the record is clear that he received that delinquency notice.

The particular notice which was sent to him was a somewhat old form.

We have examined it in the record.

It advised him that he was subject to criminal penalties.

It did not advise him as the regulations plainly say that he would be subject to immediate induction, ahead of — even of volunteers.

On January 14th, he was ordered for a third time to report for a physical examination, this to be on January 20, 1966.

And it was on January 17th that he sent to the local board the letter which appears on page 48 of the appendix.

And I think I’ll read the whole letter, it’s somewhat bizarre.

“Dear Sirs, your threatening letters continually arrive telling me exactly what to do and informing me of the penalties for not complying with your directives.”

Now that shows that he was aware that he was in a somewhat serious situation.

“In response, I can only repeat my previous assertions that I am unwilling to be a part of the organized murder and threat of murder which is the basis of any army.”

I may point out, however, he has never made a claim of conscientious objection at any time either in the records or in connection with the trial.

There are better forms of communication and impersonal printed forms filled with orders and threats.

If the man is to function socially, it’s something more than a self-destructive machine.

The improvement of communication is of great importance.

“If you wish to discuss these matters further perhaps we could arrange a mutually convenient time and place.

I hope that you folks can write above crude attempts of manipulation and engage in some constructive interaction.

Erwin N. Griswold:

Love, Bill Stiles.”

Then a postscript, “I am soon going to take a vacation trip of a month or two.

I tell you this because my leaving town with no definitive forwarding address might otherwise seem evasive.

Don’t worry, I’ll send you postcards letting you know how I am getting along.”

And the — he then did leave town.

Apparently about January 20th, he — the record contains some evidence that he was very much concerned about the reporting for the physical examination on January 20th that he came pretty close to doing it but that he finally pulled out.

And it was on January 24th that the board sent him the notice to report for induction on February 9th.

Mr. Rogers has said something about this being received at a different address to which it was sent.

That is true but I think quite immaterial, the place where it was addressed was 10 Fulton Street, Westerly, Rhode Island and it was received at Post Office Box 10, Westerly, Rhode Island which is the place where the mail for 10 Fulton Street is delivered because the people who lived there have a post office box.

It was received by his mother and signed for by his mother.

The record is quite clear that the mother didn’t open it and that the contents were not communicated to his son — to her son, I may say too that this was his last known address and the record includes the regulation of the draft of the Selective Service System that the mailing of any order, notice or blank form by the local board to a registrant at the address last reported by him to the local board shall constitute notice to him of the contents of the communication whether he actually receives it or not.

He on February 11th sent a postcard from the — to the draft board from Knoxville, Tennessee in which he said he was still thinking of them.

And then on February 15th, he mailed a postcard from Veracruz, Mexico which is on page 51-52 of the record and I would simply point out that the address he give — he gave their in Spanish is simply general delivery, Veracruz, Mexico which is not a very permanent address.

He returned to Rhode Island about the middle of March.

I find it difficult to say that the record contains enough evidence so that the jury could’ve found that he actually knew of the notice to report for induction.

It does seem to me that it contains adequate evidence to support a determination by the jury that he was well aware that such a notice was very likely to come and that he took steps to obstruct the communication of the knowledge to him.

And in the Bartchy case to which Mr. Rogers has referred in 319 U.S. involving a seaman who did take steps to see that the draft notice came to him.

He gave the Houston address of his union.

He informed the union that he would be in New York and told them to send it to the union office in New York.

The Houston office did send it to the New York office.

The New York office made a mistake and instead of delivering it to him, sent it back to Houston when he called from Maryland, New York, they said there was none.

In that case the trial court acquitted the defendant of failure to report for induction but convicted him of failure to keep the board informed as to his address.

This Court reversed the conviction on the latter point, concluding that he had taken appropriate steps and it was not his fault that it had not — got to him.

In the course of the opinion however, the court said speaking through Mr. Justice Reed on page 489, “the regulation it seems to us is satisfied when the registrant in good faith provides a chain of forwarding addresses by which mails sent to the address which is furnished to the board may be by the registrant reasonably expected to come in to his hands in time for compliance.”

And it’s quite clear here that he did not do that.

The District Court charged the jury that they had to find that he knowingly and willfully failed to report for induction and the jury found him guilty.

It — on the whole it seems to me that there is evidence to support that verdict.

I think I am concerned about the consequence of a decision to the contrary because I can see the article in the selective service law reporter which will advise people that when you know that the draft notice is about to come, write to your board that you’re about to take a vacation and you’ll let them know and be sure that you see to it that whoever is at home to receive the mail doesn’t it open and doesn’t let you know anything about it.

And if that is a way to avoid the obligation to report for induction, it could be a fairly serious matter.

Now let me turn to the other aspect of the case which I think was the part that first gave me concern when I knew about the case.

Erwin N. Griswold:

Anyone who has been an educational administrator for a good part of his life has — had contact with the situations like this, it’s very hard to know just where to draw lines here.

It was obvious this young man needed help and certainly Mr. Rogers has devoted a great deal of his time, energy and skill in providing that help.

I’m rather thinking of help at an earlier stage.

Potter Stewart:

Does the record show where this petitioner was a student?

Erwin N. Griswold:

Yes, I’ve — the record shows that he was classified 2-S.

Potter Stewart:

Yes.

That he was a student but does it show where he was a student?

Earl Warren:

Well, up here it’s Columbia University at the time they sent —

Erwin N. Griswold:

It says Columbia University at the time of trial whether he was a student.

Well, the record by Mr. Connelly showed me at page 73, he — the Mr. Knotty who — no, the FBI agent, I believe testified, he offered as an example the fact that he had registered at the University of Rhode Island and then failed to attend classes and has as a result failed the course.

And whether he had continued to be a student at the University of Rhode Island, I don’t know.

At the time of trial, he was a student at the Columbia University.

Whether he was successfully pursuing that, of course again, I don’t know.

Now the colloquy I — obviously I’m not going to take time to read it all, it’s in the record at pages 20 to 23.

It’s set out in full in our brief at pages 16 to 18.

As officer in the Executive Branch of the Government, I could not bring myself to the conclusion that that was a motion for a continuance even if it were a motion for a continuance, the question of its granting by many decisions and by proper judicial administration as a matter for the discretion of the trial judge.

Almost never I suppose is a denial of a continuance regarded as error.

I suppose you can amend that and say for the sound discretion of the trial judge, whether it was sound here or not, I don’t know.

As I’ve indicated, it’s easy to second guess.

My own wish is that the judge has said, “Well let’s — let this go over a couple of days and see what happens.”

He didn’t do that.

I find it difficult to see how an officer of the Department of Justice can say that the judge did not act in a properly judicial manner in making that determination.

Its — that passage is very appealing, it was very appealing to me as I looked into it and examined it.

I did think it appropriate to bring it specifically to the Court’s attention in the brief in opposition which we filed here.

But I could not bring myself to the conclusion that there was either a motion for a continuance or an abuse of discretion in denying it if it was treated as a motion —

Thurgood Marshall:

Mr. Solicitor General on page 18, Mr. Giron, we would continue it if this man.

He used the word continue.

Erwin N. Griswold:

What — Mr. Justice what — where is it on page 18?

Thurgood Marshall:

The second from the last way down, two-thirds down.

Erwin N. Griswold:

Yes, yes.

Erwin N. Griswold:

He says, we would continue.

Whether that’s a motion for a continuance, I don’t know.

I don’t greatly care.

Thurgood Marshall:

Well, you are.

Erwin N. Griswold:

Because even if it is, I think the judge had discretion to deny it.

Thurgood Marshall:

But I’m also worried with the judge’s language, sort of a gung ho language.

Erwin N. Griswold:

Well, either he is guilty or he isn’t, I guess it’s a —

Thurgood Marshall:

Well, let’s get it behind us.

Let’s try this case.

Let’s get it behind us.

Erwin N. Griswold:

Well, I agree Mr. Justice.

I wish it hadn’t been handled the —

Thurgood Marshall:

It would’ve been better if it wasn’t.

Erwin N. Griswold:

Hadn’t been handled the way it was but I, except in terms of what is sometimes referred to in the books as this Court’s supervisory power over the administration of criminal justice.

I find it — well, I didn’t find a ground upon which I could say that I thought that —

Byron R. White:

Well, Mr. Solicitor General I suppose that this accurately state your position that the best you can make out of this colloquy is that the Government representative would have — would not have objected to a continuance if the judge thought on the facts as he and Mr. Rogers laid them out for the judge to justify.

Erwin N. Griswold:

I think that’s exactly what I get out.

Byron R. White:

That’s the most that you can get out of it?

Erwin N. Griswold:

Well, I think that —

Byron R. White:

It was if the Government wasn’t urging at the beginning.

Erwin N. Griswold:

I think that’s the most I can get out of it.

I think I can properly say I have no objection if anybody else can get more out of it but that’s the most that I could get out of it.

Earl Warren:

Mr. Rogers.

Charles J. Rogers, Jr.:

Thank you, Mr. Solicitor General.

Very briefly if it please the Court, with reference to this motion to continue, I wish to make it crystal clear to this Court that there was absolutely no doubt in my mind that I was going to a trial immediately.

And I would like the Court to notice that I was brave enough to have this put on the record if it please the Court and I’m certain that all being practitioners, we’ve been before a court and it doesn’t very frankly take too much powers observations to know when you’re going to trial and when you are not going to trial.

Now, I indicate also for the record, the Solicitor General has in fact read these communications that I’ve brought to the attention of the Court and I indicate to the Court that now — clearly, there’s no doubt in my mind that my additional plea of not guilty by reason of insanity was clearly necessary under those circumstances.

I think that the record will indicate the accuracy of the plea.

I know that insanity, defensive insanity was applicable here.

The Solicitor General does in fact concede, it would appear to me that the young man had no notice.

Charles J. Rogers, Jr.:

He indicates that this young man failed to show for physical examinations.

I submit to the Court the he wasn’t on trial for failing to report for physical examinations.

I concede that.

He was charged with not reporting for induction.

Initially, the — additionally the Solicitor General concedes that the notice that the then appellant — defendant now upon it received was not one that contained notice of immediate induction into the Armed Forces.

I submit that it’s very important to realize that all of this boy’s conduct should in fact be taken into consideration.

Did he or did he not comply with the requirements as laid out in the Bartchy case.

The — to the best of my humble knowledge, there is no statute, there’s no case law in existence in this country that will find someone guilty and sentence him and this young boy is under sentenced to two years in a federal prison.

And I submit that there’s no statute or no case in existence in the United States that will charge, try and convict somebody and sentence them for an offense committed that they didn’t know about.

I submit that factually that the Solicitor General is incorrect when he says, “Whilst you have to do to avoid the draft is to send some ridiculous letter and I say ridiculous letter such as my client sent and leave town.”

This is not true.

It is necessary clearly to adhere to the requirements of the so-called Bartchy case.

This country will not permit one to avoid military service in this manner.

It is necessary.

I feel that when a man does not in fact comply with the requirements of the Bartchy case, put him in jail but when he does comply with the requirements of the Bartchy case, I feel clearly Your Honors that he should — that the convictions should in fact be reversed and the young man should be set free.

I trust that I have shown that he did in fact complied —

Abe Fortas:

You’re not really suggesting that petitioner in good faith left a series of forwarding addresses?

Charles J. Rogers, Jr.:

I do Mr. Justice Fortas, I truly do.

I feel that and it — I’m well aware if it please the Court that you personally have try insanity cases, I know that.

I would ask this Court to take into consideration of my client.

I have — you take you’re plaintiffs Your Honor —

Abe Fortas:

That wasn’t my question.

Charles J. Rogers, Jr.:

I beg your pardon, Your Honor?

Abe Fortas:

My question was whether that your contention based on this record that the judge should have instructed the jury to bring in a verdict of not guilty because you’re client in good faith left a series of forwarding addresses at which he might have received notice had the board been diligent in giving him notice.

Charles J. Rogers, Jr.:

Yes I am if it please the Court.

There are other cases in this area that — or the Government cited Graves versus the United States at 252 F.2d 878, in that case somebody was off tending bees if it please the Court.

He thought that he have a 30-day con — delay for reporting.

He requested a 60-day delay and left.

He was living in his automobile or whatnot.

He was off tending his fees and his mother also received that draft notice.

Charles J. Rogers, Jr.:

I submit that this young boy did not have any knowledge, any prior knowledge that any communication was in fact coming to him.

The Solicitor General indicates that his last communication did not indicate immediate contact for the draft board.

Bartchy, in the Bartchy case, if it please the Court, it indicates clearly that you must be expecting this.

This young man had no idea that the United States Army wanted him.

Additionally, he did in fact send them notice such as it was.

He sent them notice on prior occasions, on subsequent occasions also.

And if it please the Court, I indicated for the record when I begin my argument.

The first thing that this young man did after registering for the draft was to advise them way back in 1963 if it please the Court that he was leaving to go to Tennessee.

I feel that his actions must be considered as a whole.

I submit that his actions although he may not have sent him an address, I will be at XYZ street, Apartment 4, etcetera.

He did in fact then — provide them with the best possible information he could in fact provide.

And I submit —

Earl Warren:

How do you explain the two instances where he declined to appear for physical examinations?

Charles J. Rogers, Jr.:

I have nothing factual if it please the Court to back up what I say.

I submit that he very probably should have been charged by the United States attorney for a violation of that section of the selective service law and I — the only thing I can do if it please the Court is to indicate that my personal reason — explanation of why he didn’t show up, I submit that he was sick.

That’s why I filed the defense of not guilty by reason of insanity if it please the Court.

And clearly while the Navy —

Earl Warren:

Leaving the insanity aside for a moment the —

Charles J. Rogers, Jr.:

Yes, Your Honor.

Earl Warren:

— the letter — reads a letter that he wrote to the board saying he didn’t want to be associated with murderers and so forth —

Charles J. Rogers, Jr.:

Yes, Your Honor.

Earl Warren:

— and his refusal on two occasions at least to appear for physical examinations should those be taken into consideration in determining whether these postcards and letters that he got from Tennessee with no address from a general delivery address at Veracruz, shouldn’t it be taken — take — those things should be taken into consideration in determining whether he was actually trying to comply with the regulations.

Charles J. Rogers, Jr.:

Yes, Your Honor.

All of his conduct should be taken into consideration but I submit that no more emphasis should be placed on the bad, the ridiculous, the foolish then — his other attempts if it please the Court and his other activities.

(Inaudible)

Charles J. Rogers, Jr.:

I beg your pardon, if it please the Court?

I thought the jury was (Inaudible)?

Charles J. Rogers, Jr.:

Yes Your Honor.

Having my — I want to thank this Court for allowing me the opportunity.

Earl Warren:

Well, Mr. Rogers, the Court wants to thank you also for accepting the representation of this indigent defendant.

Earl Warren:

We — we consider that a public service.

Charles J. Rogers, Jr.:

Thank you, Your Honor.

Earl Warren:

We thank you Mr. Solicitor General.

We thank you for your very fair representation of the Government in this matter.