RESPONDENT: United States ex rel. Shott
DOCKET NO.: 52
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the Sixth Circuit
CITATION: 382 US 406 (1966)
ARGUED: Nov 18, 1965
DECIDED: Jan 19, 1966
Facts of the case
Media for Tehan v. United States ex rel. Shott
Audio Transcription for Oral Argument - November 18, 1965 in Tehan v. United States ex rel. Shott
Number 52, Dan Tehan, Sheriff of Hamilton County, Ohio, petitioner, versus United States ex rel. Edgar I. Shott, Jr.
Calvin W. Prem:
Chief Justice Warren and Associate Justices, I'm here in behalf of Sheriff Dan Tehan who is the petitioner, Sheriff of Hamilton County, Cincinnati, Ohio.
He succeeded or he became a party in this case at the stage of proceedings when it reached the habeas corpus stage.
Prior to that, this case which is a criminal case involved the state -- people of the State of Ohio against the defendant, Edgar I. Shott.
The only question presented to this Court for decision is actually whether or not this Court's decision in the Griffin against California case just this year, should be applied retrospectively or prospectively.
The facts in the two cases are almost identical except in that they involve different kinds of crimes insofar as the factual background of this case might be of some general interest to the Court although the facts themselves have nothing to do with the Court's decision.
I would like to say that -- and since this case has had references made to its involving securities violations, I would like to say that the actual crime involved was in the nature of a ponzi deal.
It was in the nature of a securities manipulation and it involved a number of persons other than this defendant and when it came to light several persons were indicted each charged with violations of the Ohio Securities Act.
In particular, this defendant was charged with two counts, One, with selling securities without a license and the other in selling unregistered securities.
As clearly stated as I can put it, it's something like the law that says “You can't fish without a license and if you fish and don't have a license, you're in violation of that law.
From that point on, this trial was extremely brief although it covered a period of about three days.
I say extremely brief because there were only two witnesses who were called and at that point, the state rested its case and there was no defense.
There were opening statements made by counsel on both sides and in the opening statement for the defendant, there were certain admissions made which touched upon the requirements to be proved by the State in proving its case against this defendant.
Now in presenting the issue to the Court as to whether or not it's Griffin against California decision should be applied retrospectively, it is my position, it is the position of the State of Ohio as proponents that it not be applied retrospectively.
That in this case for reasons which I would go into, this decision, Griffin against California should be given prospective application and that that prospective application should in fact be applied to this case.
I say that and at the risk of being too brief, I am relying heavily upon this Court's decision in the Linkletter case which followed Griffin.
The decision had a thorough review of the arguments for and against prospective or retrospective application, had a -- an intelligent review of the reasons behind decisions that have been given prospective application and decisions which have not.
And I feel that the similarities between the two principles that are involve although the Linkletter case had to do with the evidence rule of the Mapp case and this has to do with the comment by the prosecution in a criminal case.
Although those are different, I feel that the principles involved are the same and that for that reason, the reasoning in the Linkletter case can be identically applied in arriving at the same conclusion in this case.
As I indicated to this Court in my factual statement, the trial was had, the jury found the defendant guilty of having sold securities without a license and of selling an unregistered security.
The defendant did not take the stand, comment about his failure to testify, an explain was made by the prosecutor.
I was one of the prosecuting attorneys who actually presented the case for the state and my co-counsel, the prosecutor whose comments are the basis for this appearance unfortunately had a heart attack earlier this year and died.
In fact, while we were here and he had his first seizure, but other than that, the reasoning that this Court put forward leads me to say that it might be suggested today that it would be fantastic, I believe that is exactly the way it was stated in the respondent's brief, it would be fantastic to deny the retrospective application to all cases that have ever been tried since the year one.
And I submit that this approach is not so that if we would consider that to be fantastic and if we would feel that we would have to apply this retrospectively to all cases such as in the Gideon case then we would get enmeshed in a dog chasing its tail type of situation where there would be no end.
Instead this type of rule, the evidence principles of this rule requires that we have a starting point.
And as this Court judiciously and legally and clearly stated in its Linkletter case, it got the look at several things involved in the case being considered before making a determination, a final determination of prospectivity or retrospectivity.
Has the as the Ohio Supreme Court or any – or any Court of Appeals in Ohio dealt with this question?
Calvin W. Prem:
Well as a matter of fact, Justice Stewart, I don't' know the anticipated question like this, but I left Cincinnati in great haste yesterday afternoon and somehow grabbed an Ohio bar which has the most recent Ohio Supreme Court case on this point.
It's reported in 3 Ohio State Second at page 212.