Tehan v. United States ex rel. Shott

PETITIONER:Tehan
RESPONDENT:United States ex rel. Shott
LOCATION:Congress

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

Question

Audio Transcription for Oral Argument – November 18, 1965 in Tehan v. United States ex rel. Shott

Earl Warren:

Number 52, Dan Tehan, Sheriff of Hamilton County, Ohio, petitioner, versus United States ex rel. Edgar I. Shott, Jr.

Mr. Prem.

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.

Potter Stewart:

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.

Calvin W. Prem:

The style of the case is Pinch against Maxwell, warden of the Ohio State Penitentiary.

That was a case –-

William J. Brennan, Jr.:

What’s that citation again?

Calvin W. Prem:

The citation is 3 Ohio State Second, page 212.

Potter Stewart:

Is that the latest Ohio Bar you have in your hand?

Calvin W. Prem:

There’s one since, but this is the latest one I have on my desk.

Potter Stewart:

I have those in my office.

William J. Brennan, Jr.:

What does it say?

Calvin W. Prem:

This case was substantially the same as what we have here in that although it was a burglary case I believe, the defendant didn’t take the stand.

There was comment made that he was convicted and this Court I’m certain is aware of the fact that in Ohio prior to Malloy against Hogan or prior to Girffin against California, Ohio’s Constitution permitted such comment wasn’t just the statute, but the Constitution permitted it the same as in California.

And on the basis of that constitutional provision, the comments were made.

The Supreme Court in its opinion leaned heavily on this Court’s language in the Griffin case and in the Linkletter case.

I beg your pardon.

William J. Brennan, Jr.:

Is this on direct review?

Calvin W. Prem:

It was —

William J. Brennan, Jr.:

A state habeas?

Calvin W. Prem:

No it’s habeas corpus —

William J. Brennan, Jr.:

State habeas.

Calvin W. Prem:

Yes.

William J. Brennan, Jr.:

Yes.

Calvin W. Prem:

But at any rate —

Hugo L. Black:

You said somebody about Maxwell and I couldn’t get it.

Calvin W. Prem:

Maxwell is the warden of the Ohio State by that.

Hugo L. Black:

I know but who was the plaintiff?

Calvin W. Prem:

Pinch is the —

Hugo L. Black:

P-I-N-C-H

Calvin W. Prem:

P-I-N-C-H.

He was the convicted defendant in this burglary case and as I have indicated the Ohio Supreme Court leaned heavily on the language that this Court used in its Linkletter case and made it applicable to the principles involved in this comment case and for whatever interest it might have, I marked one paragraph that it is the second last paragraph in the opinion which is the only part of the opinion that I can find that isn’t in quotes and having not been taken from this Court’s the language.

It says to apply Griffin retrospectively which serve as a foundation for upsetting convictions in a large number of cases decided long ago wherein the accused failed to testify and the Court and prosecuting attorney commented on such fact in accordance with the procedure formally approved by the Supreme Court of the United States.

The —

William J. Brennan, Jr.:

That sound is if then the — your own supreme court in a collateral proceeding would have reached precisely the result the Court of Appeals did here, also in a — for the federal habeas, is that right?

Calvin W. Prem:

Are you – are you referring at to the Malloy against Hogan.

William J. Brennan, Jr.:

No,no.

This I gather some application to Griffin, isn’t that right?

Calvin W. Prem:

That’s correct.

William J. Brennan, Jr.:

And what’s the holding that it’s not retrospective?

Calvin W. Prem:

That it’s not to be applied retrospectively.

William J. Brennan, Jr.:

I see and so they sustained?

Calvin W. Prem:

In effect, this decision recites that there has been a previous reliance upon the validity of the constitutional provision referring to the Adamson case and Twinding and so forth.

So that with that thought in mind and this case was decided on September the 29, 1965 with that in mind and with this Court’s reasoning in mind in the Linkletter case if we were to examine those areas that this Court said must be examined before determining whether to go retrospective or prospective, that is first of all consider whether or not the right that we’re talking about, in this case the self incrimination privilege, whether that’s a basic right that would go to the fairness of the trial itself.

I don’t believe that in a case of this kind, the comment by the prosecutor had anything to do with the elements of conviction of a crime.

In other words, no matter what the prosecutor said, it neither convicted nor acquitted a defendant whose conduct was complained of.

The State still had to prove that he did what he said he did.

Potter Stewart:

One of the problems in this case at least as alleged by your adversary that quite apart from Griffin and the Griffin rule, the automatic Griffin rule that this case maybe an aggravated case in which the prosecutor’s remarks was substituted for evidence.

Calvin W. Prem:

Well I — again, as I say that was —

Potter Stewart:

That was a subject as you know of the first appeal here which was dismissed and a petition was denied but as you also as I’ve understand it, that’s been reincorporated now in this argument.

Calvin W. Prem:

I know that Mr. Arnold has taken that position in his brief and he has on prior occasions, but having been at the trial itself and having had myself exposed to the chronological happenings of these things, the comment by Mr. Sutler upon Ed Shott’s failure to take the stand and testify in no way substituted for evidence in the case.

There was adequate evidence of the sale of a security and then it was a public sale from which the jury could conclude exactly what it did.

I don’t want to get involved in a rehash of the facts in the case.

They are in the printed transcript but while I’m on the subject, I recall the witness, Sestido, who was an unusual personality to say the least but in the indirect examination, he revealed to the jury that he, a furniture store salesman, had heard about the prospects of making big money in making investments to the Shott Investment Company that he had heard it in another area of the city among automobile dealers which would, I believe be a factual statement to the jury from which they could conclude that that kind of notoriety had to come from repeated transactions.

And it is further strengthened by way of evidence that was actually adduced at the trial that the note that was given and which is claimed to have been one of the exempted transactions in that it was — it’s claimed to have been a private transaction, the note was signed Ed Shott Investment Company by Ed Shott rather than as an individual.

So I say that although the trial itself was brief, there was evidence from which this jury could and did determine exactly what it set out to determine, that is the guilt or innocence of the accused.

Potter Stewart:

Am I correct in understanding that the Ohio law, this — that this — that in order to be guilty of this offense under Ohio law, there has to be a showing of more than a single sale.

Calvin W. Prem:

I can answer that yes and no for this reason.

The security laws in Ohio that is the entire section if it is read from the first to the last section starts off by saying it’s unlawful to sell securities without a license.

And then there’s a section that says that a note is a security.

But there’s a third section which grants an escape or grants a — an excuse to persons dealing in private transactions so that the presumption is that if you engage in the sale of a security, the selling of a note without a license, you’re guilty but you’re given the opportunity to show that –-

Potter Stewart:

Bring this out –-

Calvin W. Prem:

— similar to the narcotics laws that would say it’s unlawful to posses morphine however in some exempted preparations, you may in fact have and that’s what happened here and that’s why to me, as a trial order, it was somewhat of a surprise to have felt satisfied in the showing of prima facie case in behalf of the State under our procedure.

If we get pass the directed verdict, we have a right to expect that we’ve proved some sort of a case.

Calvin W. Prem:

And then I anticipated that the defendant would attempt to show by introducing actual testimony of the private nature of this transaction and other transactions, but he didn’t do this.

Out of the hearing of the jury and to — we, attorneys who were involved on both sides of this case, the judge was very disturbed, Judge Webert whom you may know, because he indicated to us and this is one of the reasons that it took three days, he slept on it overnight.

He said that if it was a civil case, he would direct the verdict on the basis of what had happened, but because it was a criminal case, he felt that he could not do that that the jury would have to conclude certain things or not find certain things and to return a brief.

As it turned out and as Judge Peck said in his lengthy opinion, the jury did have issues to determine in spite of the admissions made by counsel for the defense in this trial and rendered its guilty verdict, but to continue and conclude what I’m saying in behalf of our position against the retrospective application of the Griffin rule for the same reasons as were given in the Linkletter case.

If we were to consider the purpose for the rule in the Griffin case and consider whether or not that purpose would be further by making it retrospective, we come up with a zero because a retrospective application certainly in the decision in Griffin would in no way accomplish what that decision actually sets out to accomplish and that is to prevent future comments by prosecuting attorneys in the trials of criminal cases where the accused does not take the stand.

There was a certain reliance, if I might use —

William J. Brennan, Jr.:

Mr. Prem, may I ask you, is this the usual form?

I noticed at page 70 of the record in the instructions, the Constitution of Ohio provides that no person shall be required to testify against himself.

However the Constitution also provides the failure of the defendant to take the stand and testify maybe commented upon by the State.

Now does the Constitution go on to suggest here in the record and that you may draw any inference from — it’s better to testify that you’d been a reasonable inference, did the Constitution say that?

Calvin W. Prem:

The Constitution does not but the case law that in the annotation said that this is not only in the Constitution, it has been codified in the revised code.

William J. Brennan, Jr.:

Well, what I’m trying to get to is the Constitution only goes how far to take the stand and testify maybe commented upon by the State.

Calvin W. Prem:

That’s correct.

William J. Brennan, Jr.:

But this instruct the jury that the constitution says also that you may draw any inference and it’s better than testify that you deem a reasonable inference.

Is that in your case law as part of the interpretation (Voice Overlap) —

Calvin W. Prem:

I don’t recall that particular point having actually been argued but —

William J. Brennan, Jr.:

And that’s — so that’s determined as broad inference, isn’t it?

I’m familiar with one of these in my own state in New Jersey but we don’t let it go that far.

Calvin W. Prem:

Ours is very, very similar if not identical to the provision in California —

William J. Brennan, Jr.:

California.

Calvin W. Prem:

And —

William J. Brennan, Jr.:

Well I as I recall it, the Griffin instruction wasn’t as broad as that.

Calvin W. Prem:

I don’t exactly recall what the Griffin instruction was however, in opposition to the suggestion that you just made, the thought of process in my mind that in a similar case, if in fact there were and the case is similar to the one we tried here.

If there was absolutely nothing said by the Court by way of explanation, this just might prompt the jury to arrive at an even stronger —

William J. Brennan, Jr.:

I know that’s the old argument as to whether comment means much need more [Inaudible] —

Calvin W. Prem:

Well I’m talking now only about this case and this case the defendant is an attorney and a member of the bar and this was, as I said a ponzi type scheme that didn’t involved just this amount of money in this case but it — I really don’t know how much, maybe millions of dollars.

Hugo L. Black:

Was there any objection [Inaudible]

Calvin W. Prem:

Not to this particular part.

As this Court I’m sure is aware we were at that stage not given the advantage of Malloy against Hogan and we have the constitutional provision so that even the defense counsel were relying upon the right to make the comment.

They — I’m certain objected to as Justice Stewart pointed out to the actual language that was used in that it was considered to have been harsh or strong, stronger than perhaps propriety would have required but other than that, in this case, over a three-day period, we actually were engaged in a — in maybe a two-hour conflict and that was it and anything that has happened since has been in the appellate courts.

Calvin W. Prem:

All of the appeals in this case were thoroughly exhausted.

And I say thoroughly, I think advisably because the appeal that — there were two bites all the way up to the line.

In other words, an appeal to the First District Court of Appeals in Ohio and the judgment of conviction was affirmed and then there was a reapplication for a rehearing and that was denied.

And then to the Ohio Supreme Court two times and then here on a petition which was denied and then a reapplication and then we got into the habeas corpus in the Federal District Court.

But if in using the thinking that this Court used in Linkletter, if this Court feels that we are dealing — if we can distinguish between what this Court referred as being evidentiary rules as against basic rights such as were involved in the Griffin against Illinois case where the indigent prisoner wasn’t able to appeal because he couldn’t pay for the transcript or the Gideon case, the right to counsel.

If we can say alright, those are basic rights that preclude the giving of a fair trial and in those cases of necessity we must make the rules retrospective that can be understood.

And then the distinction on the other side being that as far as rules of evidence are concerned whether or not, illegally obtained evidence disturbs the — or interferes with a fair trial or whether or not comment by an attorney on the accused failure to take the stand actually disturbs or disrupts the fairness of the trial itself.

If these are two different avenues, then in the evidentiary category, the rule should not be made retrospective but prospective only.

To do it retrospective would I think, upset the vested rights if we can use this phraseology of the public at large who have prior to the new decision relied upon their constitutional guarantee and I don’t know if I brought it with me, I did.

I wanted to make one comment that the procedure in Ohio being that once we get past the directed verdict, our procedure being in reliance on this constitutional provision, then we have a right to continue that reliance until such time, as this Court has changed it, which was at the time of its Malloy decision or subsequently the Griffin decision.

I have concluded there’s really nothing else I can add other than what has been said in the briefs.

Thurman Arnold:

Mr. Chief Justice –-

Earl Warren:

Mr. Arnold.

Thurman Arnold:

– may it please the Court.

We take the position on the bribe question that the decision in Griffin must be made retroactive and we take further position that regardless of whether it is retroactive or prospective, there is no possibility that it can be used to reverse the judgment of the court below and further that the case was pending at the time of Griffin under the rule in Linkletter.

Now I want to restate the evidence.

We believe because there is not a word in this record that this defendant had any, the relator had any connection with the ponzi scheme of a man named Stickler, not a lot.

There is not a line in this record that shows any inference of guilt at all.

He testified, the witness where the State testified that he had gone to his friend and had made a speculative loan and he received a note back and the note had been made paid.

The realtor thought that he had met the burden of proof which the Ohio law apparently puts upon the transaction such as this.

The Ohio law says that there must be a public offering, a public offering in the pretty large corner before a note can be treated, the issuance of a promissory note can be treated as violations about the security law.

Here although they had investigated the situation, they chose to prove only one single transaction and that would alone [Inaudible] to the State’s witnesses and that’s all And then they relied on the burden of proof.

They said that shifted the burden of proof, that innocent transaction shifted the burden of proof to to explain it on to the defendant.

And finally, the prosecutor commented on this evidence in a way which we had some time when we appealed before Griffin on law that certainly did not come within the Adamson rule.

The Adamson rule, as we understood it, allowed the prosecutor to comment upon the defendant’s failure to explain evidence against him and here there wasn’t a line of evidence that needed explanation.

So he didn’t take the stand and in the prosecutor at length commented upon his failure to take the stand, I guess – one example from page 6 of my brief and there he sits for just one reason because he can’t look you in the eye.

He can’t tell you that because it isn’t so because there was more than one transaction.

There was a multiplicity of transactions and that is where the crime has been committed.

It’s now an objection previous to this, there’s a lot of conversation, the objection is overruled.

So here is the prosecutor testifying [Inaudible] back to the Court that this was a public offering.

Thurman Arnold:

And we thought that that did not — could not possibly be included even under the Adamson rule.

On December 2, 1962, we appealed and filed in orderance a writ of certiorari.

The court held that until May 13, 1963 and incidentally the decision — the — in 1963 — in October 1963, a certiorari was filed in Griffin whereas our certiorari was filed in December of 1962.

And on May 13th, our appeal and orderance writ of certiorari was denied, Justice Black dissenting on the ground of probable jurisdiction had been shown.

Now had that been granted, that certiorari it would be Griffin without here saying that this thing should retroactively apply to me.

It wouldn’t be a charge.

In other words, it’s a result with a pure matter of luck in the race to the Supreme Court that Griffin got here first although his petition in certiorari wasn’t filed the next year after ours was.

Then on June 24, 1963, which was the day after the mandate came down from denial of our appeal on the certiorari, we filed a habeas corpus, a petition for habeas corpus in the District Court and in that petition, we raised the constitutionality of shifting the burden of proof under the meaning of transaction, the fairness of the trial on the Adamson rule, and also the constitutionality of the Adamson decision itself and the Court held that for about five months.

The court decided that quicker, we would have beaten Griffin to this Court because in Griffin, the certiorari was filed October, 1963 in the case which was decided in May 28, 1965.

So we first point out that surely in — there were two proceedings are being brought to the Supreme Court and one is decided before the other.

It would be impossible to say that this purchase of the form of proceeding by means, on decided proceeding was on pending.

Now in the second case which took place, we point out that if Griffin is to be given a prospective effect, it must be purely prospective.

It must relay, it must leave previous cases where and previous individuals where they were found.

But in order to reverse the decision of the Court of Appeals in this case, the State has to claim although he haven’t reached the argument, they have to claim that it is prospective as to all individuals but retroactive in the sense that the Court will go back and of reverse the decision of the Court of Appeals which the Court admit was correctly decided.

Now that has this sort of Alice in Wonderland to me.

Potter Stewart:

That’s under the assumption that all will agree that this case was correctly decided quite apart from Griffin.

Thurman Arnold:

No, this case decided, the Court of Appeals decided that comment on the — a unit of extension.

The opinion of these two paragraphs in some page 8 —

Potter Stewart:

Yes.

Thurman Arnold:

And the Court of Appeals decided that the comment on the evidence — I mean of a failure to take the stand was unconstitutional and they’ve decided on the basis of Malloy and this Court has now by Griffin, if there ever was any question about Malloy, affirmed the result in the — that case.

So now —

William J. Brennan, Jr.:

Judge Arnold, may I ask this.

You said — I know on direct review in this case from the Supreme Court of Ohio, now we denied certiorari in May 1963 —

Thurman Arnold:

Yes.

William J. Brennan, Jr.:

— and rehearing in June, 1963 —

Thurman Arnold:

That’s right.

William J. Brennan, Jr.:

Do you know when we granted certiorari in Griffin?

Thurman Arnold:

Yes, I do.

I got the date right here.

You granted the certiorari on — it was filed October, 1963.

William J. Brennan, Jr.:

Yes, October 1963.

Thurman Arnold:

Yes.

William J. Brennan, Jr.:

Right, just a few months after —

Thurman Arnold:

Yes.

I’m sorry I don’t have the date it was granted.

William J. Brennan, Jr.:

Well — but it was filed here on October after we had denied near case.

Thurman Arnold:

That’s right.

Hugo L. Black:

And we denied [Inaudible] before?

Thurman Arnold:

Yes, that’s right.

William J. Brennan, Jr.:

And was this point raised in the petition that we denied in your case?

Thurman Arnold:

In the petition, we denied — we’ve raised the point as to the burden of proof and the fairness of trial and — I mean the burden of proof ploy, the fairness of trial and we asserted that even under Adam — Adamson, this kind of comment would not be allowed.

And you could say, I think or technical, that we did not raise the precise point in the petition for serve which I have filed copies of the petition cert that Adamson was unconstitutional.

But I think that this Court had taken certiorari unquestionably that question would have come up and we did raise a precise point that Adamson was unconstitutional in our proceedings for habeas corpus.

And that with a little more luck could have reached the Supreme Court before the decision in Griffin which was April 28, 1938.

So I see no — I see no possible way of saying that this case was not pending.

I suppose the only argument could be made and it is made is that habeas corpus is sometimes of a collateral proceeding and we only look as what’s pending in — on the great proceedings.

But surely those contentions can no longer be made after Fay versus Noia where the Court that Mr. Justice Brennan encouraged people not to bring certiorari at all and so I do not see — I’ve been [Inaudible] said but said not defending and the fact is that it is still passing if the test is looking and adopted.

It is still pending in the Court of Common Pleas in Ohio.

There is a mandate there which directs the Court even to try, it’s stated January 8.

It directs the Court even to try relate or — or to release him within 90 days.

And the release I suppose that maybe suspended that 90 days gone by but I suppose that was suspended by the proceeding for certiorari.

So it’s pending on the docket, it’s pending within the rule of the Linkletter and even if it wasn’t pending, you couldn’t use it to reverse a corrected deciding case by the Court of Appeals without saying to the Court of Appeals now don’t decide these cases until your first crime whether we’re going to cite — make the decision retroactive or not otherwise you will have to reverse.

This saying doesn’t make sense.

Now as to the broader question, we have suggested in our brief that perhaps this case is not a proper vehicle to bring up — bring the issue of retroactivity.

In view of the fact that two cases, one in California and the other in Ohio have been decided stating that this decision is only prospective and not retroactive, we will draw this suggestion that because it might be considered a dicta.

This rule should not be decided in this case because other state courts, this will become through other state courts and I do not think that the rule against dicta or the rule that where you can decide the case on a broader ground or a narrower ground.

You should always decide on a narrower ground should apply to this case.

I think this case the Court should act and decide the issue here.

Now, I will argue the principle issue.

I say that under the decision in Linkletter, this case, the Griffin decision, must be given a retroactive effect.

Thurman Arnold:

Now what standard, Mr. Justice Clark laid down in Linkletter.

The first standard was did the state rely on the former decision, the former decision in Linkletter was brought back and the answer to that, of course in our case is this.

The State did rely upon Adamson.

Then the second standard that Mr. Justice Clark laid down was what was the purpose of the ruling in the former case which it refers to?

Obviously in Mapp, the purpose did not concern that trial itself or any part of the appellate procedure.

It related only to the pre trial efforts of the prosecutor to get evidence.

It was not part of the trial.

It could not be said that the trial itself was not fair because the evidence was completely relevant and the majority in Griffin had said, that this pretrial conduct that the prosecutor had to be disciplined and that was the real purpose of the rule in Mapp and that cannot be said here.

Here in the –here the constitutional effect was part of the trial.

If the Court have decided that it was not a fair trial where comment on the failure of the defendant to take the stand was made by the prosecutor and that is ample proof by the time the comment should get in the particular kind of comment we got in the — this case.

So that — and then the Court finally test, the third test laid down by the Griffin case was what effect does the new decision have upon the administration of justice and they pointed out that whether a — an evidence obtained — an evidence was obtained by illegal search and seizure is a very complication, factual product on which judges are constantly differing.

The Court pointed out the tremendous burden it would be to try such factual issues over again and let’s contest that with the situation here.

Here the only factual issue which is to be determined is the factual issue whether the prosecutor commented and in 99 cases out of 100, that will be right on the record and in the 100th case where the record is lost, the burden of proof of that comment will be on the petitioner.

So that so far as they’re being complicated factual issues of concern, there isn’t a possibility of the kind of effect on the administration of justice which this Court feared in Linkletter.

So this leaves the offense of the position that the Mapp — which the decision should not be retroactive solely to an argument which had not yet been made that the argument that this will be a great big jail delivery.

Well I think if it would, the other cases Gideon hasn’t been and there might be some statistics shown by the Court to indicate jail delivery and perhaps that’s a reason they don’t mention in jail delivery.

But I’d like to point out to this Court that jail delivery by itself, the fear of a lot of people getting loose who were tried have been rejected.

In the Griffin versus Illinois, the failure to furnish a free contract that was on the appeal was made retroactive in the case of Eskridge.

And in the Gideon case, the – it was made retroactive by Doughty versus Maxwell.

Both of these cases involved the fairness of the trial and the idea that maybe somebody might get loose was not considered sufficient justification.

And indeed in Linkletter itself, Mr. Justice Clark points out, that the mere fact that an innocent man or a guilty man might be freed is not sufficient to cause to raise this for not making the case retroactive.

So I assert to this Court that under the test of Linkletter, this case must be made retroactive and second, that whether whatever test you put it on, it cannot be made prospective in the sense that no one cannot take advantage of it who did not have a pending case under the same retroactive to reverse a correct decision of the Court of Appeals.

That is impossible I say also that it was pending and now I have not briefed and argued the issues which were presented to the Court of Appeals prior to their two paragraph decision after the Malloy case was decided.

Those issues are one; can the State shift the burden of the proof to the defendant to explain an innocent man?

If I have brought one end of the note to the bank, must I prove that I haven’t issued so many notes just to make a public transaction and say that in the Constitution?

And second we say that retroactive or not retroactive, the — this particular comment was not — would not deprive the defendant of a fair trial even under adversaries.

Now those matters, we have not briefed them because I felt that the case couldn’t without [Inaudible] but if the Court disagreed to this, you will — the clerk allowed us to put our jurisdictional statements and arguments [Inaudible] I think they’re certified — we have certified copies in the Court, I think that the Court disagrees my argument here, it should go into those other questions.

Earl Warren:

Mr. Prem.

Calvin W. Prem:

The only additional comment that I would have to make, if the Court pleases, is that in response to what Mr. Arnold suggested to the Court about the preliminaries in this case and I keep referring to how brief this trial was, I’ve had to call the Court’s attention to the transcript especially on page 22 that part of the trial which were the opening statements of counsel.

It was in the opening statement and this is what Judge Peck in the Federal District Court commented upon in his opinion.

Calvin W. Prem:

In the opening statements of counsel, a considerable amount of information was revealed to the jury concerning this defendant’s activities in that he was loaning money indicating plural transactions to a man named Stickler who – Stickler was actually actively involved in this ponzi type scheme.

So I call that to the Court’s attention.

Earl Warren:

It is with great regret that I announce that the Court has just learned of the passing of Honorable Henry Wallace, former vice president of the United States.

Mr. Wallace was a great American, rendered in valuable service to the government of the United States throughout his long life.

He was Secretary of Agriculture, he was secretary of Commerce, he was Vice President of the United States and throughout his whole life.

he was a useful American Citizen and at this time that the Court adjourns out of respect to his memory.