Winston v. Lee

PETITIONER:Andrew J. Winston, Sheriff, et al.
RESPONDENT:Rudolph Lee, Jr.
LOCATION:Lombardy Market

DOCKET NO.: 83-1334
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 470 US 753 (1985)
ARGUED: Oct 31, 1984
DECIDED: Mar 20, 1985
GRANTED: Apr 16, 1984

ADVOCATES:
Joseph Ryland Winston – on behalf of the respondent
Stacy F. Garrett, III – on behalf of the petitioners

Facts of the case

Around 1 a.m. on July 18, 1982, Ralph Watkinson was locking up his shop when he saw a figure with a gun approaching him. Watkinson drew his own weapon, and the two fired at each other. Watkinson was hit in the legs, and the other shooter was wounded on his left side and managed to run away. About 20 minutes later, the police found Rudolph Lee, Jr., bleeding from his left side, eight blocks away from Watkinson’s shop. The police took Lee to the same hospital Watkinson was in, and Watkinson identified Lee as his shooter. Lee was charged with attempted robbery, malicious wounding, and two counts of using a firearm in the commission of a felony.

The Commonwealth of Virginia filed a motion in state court to compel Lee to submit to surgery to recover the bullet still lodged in his side. The court granted the motion based on testimony that the surgery would be relatively noninvasive and accomplished without use of general anesthetic. The Virginia Supreme Court denied the appeal. Lee sued in district court on the ground that the surgery constituted an illegal search under the Fourth Amendment. The court issued a preliminary injunction. After presenting evidence that the surgery would be much more serious than the court originally thought, Lee asked for a rehearing in the state court, which was denied. The Virginia Supreme Court affirmed. Lee brought the case back to the district court, which ruled against the surgery. The U.S. Court of Appeals for the Fourth Circuit affirmed.

Question

Does the Fourth Amendment prevent a state from a forcing a suspect to undergo surgery in order to retrieve evidence?

Warren E. Burger:

We will hear arguments first this morning in Winston against Lee.

Mr. Garrett, you may proceed whenever you are ready.

Stacy F. Garrett, III:

Mr. Chief Justice, and may it please the Court, in 1982, Rudolph Lee attempted to rob a supermarket, and for his efforts received a bullet in his shoulder.

The only witness to that shooting was the victim, who returned fire and put the bullet in Mr. Lee’s shoulder.

The Commonwealth of Virginia is seeking to recover that bullet from Mr. Lee’s shoulder as corroborative evidence in his prosecution for attempted robbery and for the shooting of the store owner who shot Mr. Lee.

In my petition for certiorari, I asked the Court to establish for the first time a standard by which all courts, particularly our Court, can have to determine when and when not surgery can be mandated upon a defendant in a criminal case to recover from his body evidence that would be used in the prosecution of that person for a crime which it is alleged that he committed.

Harry A. Blackmun:

Do you feel that you needed that evidence in this case?

Stacy F. Garrett, III:

Yes, sir, I do.

Historically in Virginia, in Richmond in particular, one on one situations where the only eye witness is the victim, juries have been very, very reluctant to convict if it only gets one man’s word against the other.

In this case it is more complicated because Lee claims that shortly after or at the same time the alleged robbery took place, he himself was the victim of a robbery some eight to ten blocks away, and claims that is how he received the bullet wound when the people robbed him.

Harry A. Blackmun:

You say this is particularly difficult in Richmond?

Stacy F. Garrett, III:

Pardon me?

Harry A. Blackmun:

You say this is particularly difficult in Richmond.

Stacy F. Garrett, III:

Yes, sir.

I recently had a case where there were three witnesses in a situation like that, and the jury came back and found the defendant not guilty, claiming that particular reason.

John Paul Stevens:

While you are on that point, do you understand that if you do go to trial without the bullet, you would be able to put into evidence the refusal of the defendant to submit to this operation?

Stacy F. Garrett, III:

Yes, sir.

But it is still–

John Paul Stevens:

That would be a rather persuasive bit of evidence in itself, wouldn’t it?

Stacy F. Garrett, III:

–Yes, sir, it would, but it also is clouded by the fact that he says, sure, I have a bullet in me, but I didn’t get it from attempting to rob the supermarket.

I got it when somebody tried to rob me and shot me.

John Paul Stevens:

Then you ask him, why didn’t you have this operation?

What is he going to say?

Stacy F. Garrett, III:

I hold my body inviolate.

I don’t want anybody to go into it for any reason, I would assume would be his argument.

This Court has never had the opportunity to–

Sandra Day O’Connor:

Mr. Garrett, on the same point, do you think that as the intrusion in the body becomes greater to recover the bullet, that the corresponding need of the state for the evidence should be greater in order to justify taking it?

Stacy F. Garrett, III:

–If I understand you, ma’am, the deeper the bullet, or the more complicated it is to get it?

Sandra Day O’Connor:

Do you think the state’s need for the evidence should be greater to justify taking it out as it gets more difficult to remove?

Stacy F. Garrett, III:

Somewhat.

Stacy F. Garrett, III:

Yes, ma’am.

If the bullet were located next to his heart, or in some cases if it were in his spine or in a joint where the removal would cause a possibility for that joint not to be used any more, or could cause some real serious harm to the defendant, I don’t think the state should be entitled to have the bullet.

But when you have the situation here, the bullet is right under his collarbone, and his doctor, Dr. Mendez-Picon, and the anesthesiologist, Dr. Boyan, have both palpated the bullet, and can feel it right from the surface.

There has been a hang-up in some of the cases between major surgery and minor surgery.

I think it can be simplified.

In the words of Dr. Mendez-Picon, this is a simple operation.

Thurgood Marshall:

Haven’t people died during simple operations?

Stacy F. Garrett, III:

I am sure they have somewhere.

Yes, sir.

Thurgood Marshall:

Like tonsillitis.

They have died, some people have.

Stacy F. Garrett, III:

I am sure… yes, sir, they have died.

Thurgood Marshall:

Don’t you agree that any operation is serious if you out somebody?

Stacy F. Garrett, III:

No, sir, I don’t believe all operations are serious.

Byron R. White:

But what if it is a general anesthetic?

There are a lot of people that… it is just a shock to the body.

Stacy F. Garrett, III:

The anesthesiologist in this particular case has performed over 150,000, and he has yet to lose the very first one.

He has performed many of these, and his hospital has never lost… where this is going to go, has never lost a single patient for this type of surgery.

Minor surgery done with general anesthesia is now the common trend.

It is done because it is quicker, it is easier for the surgeon, it is less painful for the person undergoing the surgery.

As Dr. Boyan says, they go in at 10:00 o’clock in the morning, and they are out by 3:00.

They walk out of the hospital.

Byron R. White:

Anyway, the court below didn’t turn on that at all, did it, on whether it was a general anesthetic?

Stacy F. Garrett, III:

They ruled… yes, sir, that was their reason, because it was a general anesthesia.

Byron R. White:

So you think that is not a very good line?

Stacy F. Garrett, III:

I don’t think so.

No, sir.

I wouldn’t be here if I did.

Warren E. Burger:

Didn’t one physician say that it could be done with a local anesthetic in about 20 minutes?

Stacy F. Garrett, III:

The anesthesiologist said it could be, but in this case it was the particular surgeon who said, I want to use a general anesthesia.

Stacy F. Garrett, III:

It is the surgeon who decides whether local or general could be used.

It could be taken out with a very light anesthesia.

The doctor said that by the time he is asleep, the procedure will be all over.

It is a very, a very simple, a very straightforward… they don’t have a lot of exploratory to do.

They know exactly where the bullet is.

They can feel it, and go right to it.

Sandra Day O’Connor:

Mr. Garrett, do you propose, then, that the standard of reasonableness is whether it is minor surgery or not?

Stacy F. Garrett, III:

I think that should be one of the tests.

I think the test should include an analysis of the–

Sandra Day O’Connor:

That isn’t your test then, whether it is minor surgery?

Stacy F. Garrett, III:

–You can get into debate as to what is minor and what is major.

Sandra Day O’Connor:

Yes, I was going to get to that.

I am just wondering what your test is.

Stacy F. Garrett, III:

I think any test, whatever it be, has to include the amount of risk to the victim, or to the person undergoing the surgery.

One doctor, Dr. Williams, who, by the way, never examined Mr. Lee–

Sandra Day O’Connor:

So you don’t propose that minor surgery be the standard?

Stacy F. Garrett, III:

–That is an artful term, ma’am, and it is hard to say.

What one person says is minor… I think if the medical people say it is minor.

To a school teacher, going in and having your oil changed might be a major operation, but for a mechanic it is simple.

It is a very minor thing, but for her it is not, or him, if the school teacher is a man.

It makes no difference.

William H. Rehnquist:

You are talking about an automobile, not a person, I take it.

Stacy F. Garrett, III:

Yes, sir.

Byron R. White:

But any operation that had any substantial risk of a permanent disability or of death you wouldn’t classify as minor.

Stacy F. Garrett, III:

Yes, sir.

If there is a substantial chance of a person dying, or a substantial risk of having a limb being affected, or not being able to use, I don’t think that the state should have the right to have that bullet.

Byron R. White:

That is your test then?

Stacy F. Garrett, III:

That is the way I define it.

Byron R. White:

Yes.

Stacy F. Garrett, III:

I mean, I don’t… what is minor or major.

Stacy F. Garrett, III:

There is a balance that has to be struck, I feel, in this case, the right of Mr. Lee to say, look, I’ve got a bullet in me.

I claim I came from an attempted robbery.

The Commonwealth claims that he came from… or I tried to rob somebody else.

Does he get to keep that at no risk to himself because the doctors say that keeping the bullet in him right now will have no effect on him, you know, life-threatening one way or the other.

On the other hand, the balance must be considered what right do the citizens of the country have, or Richmond, to have evidence to be used in a criminal trial?

Are we to allow a criminal or a person who is alleged to have committed a crime to perhaps go free because of this bullet that is in him that with very little risk to him, a very small risk to him–

Lewis F. Powell, Jr.:

Mr. Garrett, is there any evidence in the record as to the utility of ballistic test examinations?

In other words, how frequently are they probative evidence?

Stacy F. Garrett, III:

–I am not sure the record contains much.

I think it is my experience as a prosecutor that it is very probative.

Here we have, in this case the lab has bullets taken from Mr. Watkinson’s gun that can be compared against the bullet.

I have checked with the ballistician about it, and they are ready, if the bullet is taken out from Mr. Lee, to compare it.

It is something… it is more important for the jury to put their hands on.

Instead of saying on the one hand, here is Mr. Watkinson, this man tried to rob me, and over here we have Mr. Lee, who says, I didn’t try to rob you, or if he stands mute, one man’s word against another, we have something the jury can put their hands on.

It is like a fingerprint.

We can show, yes, this is the man who robbed you.

Or, most importantly, perhaps, perhaps that bullet didn’t come from Rudolph Lee’s gun… or Mr. Watkinson’s gun, and if that is the case, then for two years now a robber, somebody who did shoot him, has been running around free, because we have been trying to get the wrong person.

Lewis F. Powell, Jr.:

Is it possible that the bullet itself, if it were extracted, would not be in perfect condition for a comparison?

Stacy F. Garrett, III:

I don’t think it would probably be in perfect condition.

They tell us that when a bullet comes into the body like that, like sand into an oyster shell, it forms a protective coating around it, and the ex-rays show that the bullet, which is not fragmented, has got dents slightly in the nose of it, but otherwise it is intact.

The bullet has not disintegrated.

And I believe that from talking to everybody and the reading I have done, we can be able to compare that bullet with the one that we have on file from Mr. Watkinson’s gun.

Byron R. White:

The court below proceeded on the basis that even if it is very probative and would be necessary, you nevertheless couldn’t get it.

Stacy F. Garrett, III:

Yes, sir.

Byron R. White:

So we should judge the case on the assumption that the bullet… that the state really has an interest in getting the bullet.

Stacy F. Garrett, III:

They minimized that interest by saying that the risk to Mr. Lee was too great.

Byron R. White:

I know, but the reason they ruled against you was that the risk was too great?

Stacy F. Garrett, III:

Yes, sir.

Byron R. White:

Not that you didn’t need the bullet.

Stacy F. Garrett, III:

Yes, sir.

William H. Rehnquist:

Mr. Garrett, Judge Widener in his dissent in the Fourth Circuit felt that the cases of Younger and Harris and Perez against LaDezma should have prevented the federal courts from ever getting into this case before it had run its process in the state, but he criticized the majority for not discussing it.

Did the state ever raise those points?

Stacy F. Garrett, III:

Initially when we went into federal court, they were raised.

William H. Rehnquist:

You didn’t raise them in the Fourth Circuit?

Stacy F. Garrett, III:

No, sir, it was not raised in the Fourth Circuit at all.

Warren E. Burger:

From your earlier response to one of the questions, you said that if the bullet were extracted on the ballistic tests, or you intimated if you didn’t say it, that the ballistic tests showed that it had not come from the gun of this man that had been found.

Are we to take it that you would probably dismiss?

Stacy F. Garrett, III:

Absolutely.

Warren E. Burger:

The state would probably dismiss?

Stacy F. Garrett, III:

Just dismiss the charge.

Absolutely.

Warren E. Burger:

So the search, the examination of the bullet is in your view as much to produce his innocence as his guilt?

Stacy F. Garrett, III:

Yes, sir.

William J. Brennan, Jr.:

Well, what would you have done if the finding, if they got the bullet out and then couldn’t say that it was fired from the victim’s gun?

Stacy F. Garrett, III:

I would have to go to trial with that knowledge.

William J. Brennan, Jr.:

You would go to trial?

Stacy F. Garrett, III:

Yes, sir, because Mr. Watkinson is–

William J. Brennan, Jr.:

But the surgery would have been for nothing.

What is the prospect that if they took the bullet out it would be discovered that they couldn’t say whether it did or didn’t come from the victim’s gun?

Stacy F. Garrett, III:

–I cannot answer that 100 percent, sir, because we don’t know until we actually see the bullet, but from all indication, they will be able to tell, because–

William J. Brennan, Jr.:

I understood that sometimes you can’t.

You can get the bullet out, but you can’t say whether it did or didn’t come from the victim’s gun.

Stacy F. Garrett, III:

–Yes, sir.

That is normally because it has hit a hard object, such as a bone, or has hit a metal object, or a piece of stone, like the pillow behind you.

William J. Brennan, Jr.:

Only in those circumstances?

Stacy F. Garrett, III:

Most of the time.

Yes, sir.

Or the gun itself, the barrel and the lens and grooves have so corroded themselves that you can’t get a good pattern.

We know that is not true, because in this case the laboratory now has sample bullets of the same taken from Mr. Watkinson’s gun, and they are clean, and they are readily identifiable, the lens and the grooves, and the individual characteristics of that particular bullet.

Warren E. Burger:

Where was this gun located?

Stacy F. Garrett, III:

Where was the gun located, sir?

Warren E. Burger:

Yes.

Precisely when did the police first come into possession of his gun?

Stacy F. Garrett, III:

Moments after the shooting.

Mr. Watkinson was trying to look to close his store up, and he had the money bag in one hand and his gun, and the key.

He locked it up, and he turned and fired the shot, and he was shot, and the police were called, and they arrived at the scene and took possession of his weapon.

Warren E. Burger:

There is no doubt about whose gun?

Stacy F. Garrett, III:

No, sir, none at all.

None in the record.

William J. Brennan, Jr.:

I notice in respondent’s brief the statement that the firearms identification expert didn’t know whether or not a microscopic examination of the bullet itself would show that it was fired from that, and then he goes on to say,

“There is a statistical probability of 20 percent that Watkinson’s gun will not be capable to replicate firing. “

Was there that kind of evidence?

Stacy F. Garrett, III:

No, sir.

We have fired Mr. Watkinson’s gun, and we have the bullets that were taken from it, and the lens and grooves are very clear on it, and they can be readily discernible by the ballistics expert to compare against the bullet should this Court allow me to take it from Mr. Lee’s shoulder.

Thurgood Marshall:

Here they were talking about the expert’s testimony.

Was that contradicted by you?

Stacy F. Garrett, III:

The tests were run after that hearing was held.

Thurgood Marshall:

Did you contradict the expert’s testimony?

Stacy F. Garrett, III:

Did I contradict it?

No, sir.

I am talking about the same person.

The same person who testified, Mr. Moorhead, was the same person who talked to me later.

He said, after the tests were run, and an examination of the bullets from Mr. Watkinson’s gun–

Thurgood Marshall:

I mean, that’s in the record?

Stacy F. Garrett, III:

–No, sir, because it happened afterwards.

Thurgood Marshall:

It is not in the record?

Stacy F. Garrett, III:

No, sir.

No, sir, it is not.

John Paul Stevens:

Does the record tell us why your adversary doesn’t consent to the operation?

Stacy F. Garrett, III:

No, sir.

Stacy F. Garrett, III:

He just says, I don’t want the surgery to be done.

I have asked him many times if he will stipulate that he was the person shot.

Then we won’t have to go through it.

He refused to do that also.

John Paul Stevens:

And he does not place on the record any reason for not having the operation?

Stacy F. Garrett, III:

No, sir.

He has never testified, and his counsel has never said, my client doesn’t want the surgery because, for whatever reason.

The Crowder case is the only one that has reached the Circuit Court level other than this case, and in that case, which this Court refused to grant certiorari in, said that the extent of the surgical intrusion and the extent of the risk to defendant is the extent of reasonableness that we have to decide.

Intrusion in this case is approximately one inch below the surface in an operation that is characterized by the doctor as simple.

The anesthesiologist said, as soon as he is asleep and under, the operation would be over with, and he will be ready to go back to his jail cell or wherever they are keeping him.

Byron R. White:

Why shouldn’t the state be put, in a situation like this, be put to saying to the court, well, without this bullet we will just have to dismiss?

You now tell us that even if it turns out that the bullet is not the bullet, or you can’t tell whether it is or not, you would still go forward with the prosecution?

Stacy F. Garrett, III:

I have to go forward, sir.

Byron R. White:

So the most you can say is that it would help you case.

Stacy F. Garrett, III:

Help it considerably.

Byron R. White:

Well, I know, but without it… you wouldn’t dismiss it, though, without the bullet.

Stacy F. Garrett, III:

No, sir.

Byron R. White:

You would still go through this.

All it means is, it changes the odds of conviction.

Stacy F. Garrett, III:

Considerably.

I am now at a distinct disadvantage, and at least with the bullet I will have a 50-50 chance.

Byron R. White:

That is just based on your experience with juries in Richmond?

Stacy F. Garrett, III:

Yes, sir.

Sandra Day O’Connor:

Well, but you have an eye–

–In the Schmerber case, wasn’t the blood in a position analogous to the bullet here?

That is, there was other evidence in Schmerber of intoxification.

Stacy F. Garrett, III:

Yes, sir.

Warren E. Burger:

But the blood test would tie it up.

Is that so?

Stacy F. Garrett, III:

Yes, sir.

Warren E. Burger:

So that your bullet is just like the blood.

Stacy F. Garrett, III:

Yes, sir, in that regard.

It gives the jury something to hang their hat on and to put their hands on, something tangible as opposed to a victim on one side testifying, that’s the man that shot me, as opposed to the defendant sitting here either moot or even taking the stand and saying, look, I was robbed somewhere else and shot.

It gives them something they can put their hands on, and–

John Paul Stevens:

Yes, but that’s not all the evidence you’ve got.

You’ve got the fact you made a rather detailed investigation to corroborate his story and there is no other bloody person hanging around Richmond within that eight-block area.

Isn’t that true?

Stacy F. Garrett, III:

–That’s correct, sir.

John Paul Stevens:

I mean, the probabilities are fairly remote, it seems to me, that this denial will have any credibility.

I just… I don’t think this is quite right like the normal case of a one on one situation, because this fellow’s got a bullet in him, and nobody else was found with a bullet, if I understand the facts correctly.

Stacy F. Garrett, III:

That’s correct.

John Paul Stevens:

I mean, I don’t… really, I just don’t think this is a typical one on one confrontation between a defendant and the victim.

Stacy F. Garrett, III:

It is typical in that it is as typical as you can have when you have the alleged perpetrator being shot by his victim.

John Paul Stevens:

Well, except that you’ve got the alleged perpetrator here who admittedly has a bullet in him, and he is not willing to explain where it came… we’ve got a theory about where it came from which is highly implausible.

Stacy F. Garrett, III:

At trial–

John Paul Stevens:

There is no corroboration.

You don’t have dead bodies sitting around in Richmond, I don’t suppose, that you don’t… that the police can’t find.

Stacy F. Garrett, III:

–I have no idea how the trial court would rule, but if the police officer would testify when asked the question, what did Lee tell you how he got that bullet, objection, hearsay, would you advise Mr. Lee of his rights, obviously, you suspect him of being the victim… or the perpetrator of this particular crime.

He was not advised prior to that time.

John Paul Stevens:

Yes, but you can surely put into evidence the fact that he would not consent to the operation.

Stacy F. Garrett, III:

Certainly.

John Paul Stevens:

At least I would think so.

Maybe I missed some rule or Virginia evidence law.

Stacy F. Garrett, III:

That could come in.

John Paul Stevens:

Well, anyway, I shouldn’t… I am getting off on a collateral point, I guess.

You would have an easier case if you had a confession, too, wouldn’t you?

Stacy F. Garrett, III:

Of course.

Thurgood Marshall:

But that doesn’t give you a right to take one, does it?

Stacy F. Garrett, III:

No, sir.

Not unless you do it within the guidelines of the law.

Thurgood Marshall:

I mean, all I am saying is, the fact that it makes it easier for the prosecutor isn’t a right of the prosecutor.

Stacy F. Garrett, III:

But I think I have a right to use evidence that is available.

Thurgood Marshall:

That is not what I said.

Stacy F. Garrett, III:

I agree, sir.

Thurgood Marshall:

It makes it easier.

Stacy F. Garrett, III:

It definitely makes it easier.

Thurgood Marshall:

You are not alleging that at all.

Stacy F. Garrett, III:

Pardon me, sir?

Thurgood Marshall:

You are not urging that on us at all?

Stacy F. Garrett, III:

No, sir.

Warren E. Burger:

Did the record show what happened to the storekeeper’s gun or the victim’s gun?

No, excuse me, the robber’s gun, Lee’s gun.

Stacy F. Garrett, III:

No gun was ever found.

Warren E. Burger:

Mr. Winston?

Joseph Ryland Winston:

Mr. Chief Justice, and may it please the Court, I noted Justice White had asked the question, what if there is a general anesthesia to be used in this case.

That is, of course, a matter that there is no question about because we have a stipulation on that.

Byron R. White:

I knew that that is what was proposed, a general anesthetic.

Joseph Ryland Winston:

Yes, Your Honor.

I just didn’t want there to be any question about that.

In regard to the risks, Mr. Garrett has suggested this morning that the Medical College of Virginia has never lost a patient in a minor procedure of this sort.

I don’t believe that that assertion is supported by the record.

If my recollection is correct, there are some mortality statistics quoted on a study done at the Medical College of Virginia, and the mortality statistic was greater than zero, and that means that somebody has died.

So I don’t believe that that assertion would be supported by the record.

I believe that the test that is being urged on the Court by the petitioners is simply a major-minor surgery distinction.

I think at Page 12 of the petitioners’ brief petitioners flat out state, if the medical personnel characterize the surgery as minor, no constitutional violation; if the medical personnel characterize the surgery as major, then constitutional violation.

And even if the reasonableness test as opposed to the per se test is the proper test for the Court to adopt, I don’t think the Court can adopt that position of having the Court simply delegate to a witness the ultimate question before it, and particularly a question of constitutional magnitude.

Any reasonableness test, I think, is a balance.

I think that there has first got to be a need, and secondly, the inquiry has to go to the invasion of the privacy or the affront to the dignity of the individual and the risk.

Sandra Day O’Connor:

Well, Mr. Winston, now, in Schmerber, when the blood test was authorized, there is no suggestion that the extent that the state needed the evidence was a factor, is there?

Joseph Ryland Winston:

Well, I believe that–

Sandra Day O’Connor:

It just said, if the evidence is relevant, it can be obtained by means of the blood test.

There wasn’t really a consideration of need.

When does the state’s need for the evidence become a factor then?

Joseph Ryland Winston:

–I think it becomes the initial inquiry, and I believe that the need factor… perhaps if I could borrow from the–

Sandra Day O’Connor:

Well, why wasn’t it a factor in Schmerber, which also involved some degree of pain and discomfort, I assume.

Joseph Ryland Winston:

–Perhaps I am in error, but my recollection of Schmerber is that need in the general sense was a very great factor influencing the Court’s decision, the national problem of drunken driving and the need for an effective test to determine who is drunk and who is not as a means of detecting, both detecting that behavior and deterring it in the future.

And so I think need was important to the Court in Schmerber.

Sandra Day O’Connor:

Well, if it was, it wasn’t articulated, was it?

Joseph Ryland Winston:

I may be incorrect, but I believe that it was.

Byron R. White:

Well, at least–

Joseph Ryland Winston:

And I believe in Breithaupt as well.

Byron R. White:

–there was no indication in Schmerber that the prosecution would not have gone forward without the blood test.

Joseph Ryland Winston:

No, I believe they would have gone forward in that case as well.

Byron R. White:

Yes, so it is just a question of having more evidence than you had before.

Joseph Ryland Winston:

I think that’s correct.

Byron R. White:

Or just maybe it would be relevant evidence, and any relevant evidence supposedly would make the case better for the prosecution.

Joseph Ryland Winston:

If it is beyond merely being cumulative, I think.

Sandra Day O’Connor:

Over and above that, isn’t there an obligation on the prosecution to come forward with evidence that is exculpatory as well as inculpatory, and that if the ballistics test didn’t bear out, or if they showed that it was not the same gun, your man would walk out, wouldn’t he?

Joseph Ryland Winston:

I think that’s correct, but I think that is, since we have a defendant in this case rather than… I think this case is about people’s rights, and not defendants’ rights, but since we have a defendant in this case, I think that that is correct, but I think it is, and it is the defendant’s choice.

The defendant is advised of those matters, and is… and with advice of counsel has still chosen to say, I want to… I want my body to be held inviolate.

Sandra Day O’Connor:

Are you suggesting that if he thought it would help him, he might have the operation?

Joseph Ryland Winston:

That’s not the way it’s been expressed to me.

The way it’s been expressed to me is, I don’t want anybody cutting me.

Lewis F. Powell, Jr.:

Mr. Winston, at the time of the first series of hearings in this case, it was thought that the bullet was only a half a centimeter below the skin.

You took the same position at those hearings that you are taking today and that you took in the second hearing, are you not?

Joseph Ryland Winston:

I don’t believe I have ever changed my position, but I am not sure in regard to what, Your Honor.

Lewis F. Powell, Jr.:

Well, you have always taken the position, as I understood it, that there could be no cutting without the permission of the defendant.

Joseph Ryland Winston:

Well, what Your Honor has styled as–

Lewis F. Powell, Jr.:

Is that correct or not?

Did your defendant agree to the first–

Joseph Ryland Winston:

–No, I would say that my position has modified somewhat.

What Your Honor has styled as the first set of hearings… it was actually the second hearing.

Mendez-Picon was given three opinions.

Lewis F. Powell, Jr.:

–Oh, there are three hearings?

Joseph Ryland Winston:

He has given three separate opinions at different points in time as to the location of the bullet.

Lewis F. Powell, Jr.:

Yes.

Joseph Ryland Winston:

Originally he thought it was much deeper and would take about a 45-minute procedure to operate, but then he did come back, as Your Honor quite correctly points out, and says that it was just beneath the skin, in the fatty tissue.

Incision of one centimeter–

Lewis F. Powell, Jr.:

Would require only local anesthesia?

Joseph Ryland Winston:

–Local infiltration anesthesia, a solution of 1 percent Xylocaine.

Now, in that case, that is about the most minimal form of surgery there is, and I had to under that factual situation, I just had to advocate a per se rule.

No choice.

Lewis F. Powell, Jr.:

So there would be no balancing under any circumstances if any cutting were required?

Joseph Ryland Winston:

That’s correct, Your Honor.

That was the–

Lewis F. Powell, Jr.:

Regardless of how much the state may need the particular bullet?

Joseph Ryland Winston:

–I beg your pardon?

Lewis F. Powell, Jr.:

Regardless of the state interest in obtaining the bullet?

Joseph Ryland Winston:

Well, I am assuming that they have an interest, because I think if they don’t have an interest, we don’t even get to looking at how serious the procedure is.

Lewis F. Powell, Jr.:

But that interest may vary.

Suppose there were four or five other witnesses in this case to the shooting.

Joseph Ryland Winston:

Oh, the need would be much more minimal.

Lewis F. Powell, Jr.:

The state interest would be minimal.

On the other hand, if there were no witnesses, no other evidence whatever, the state interest in obtaining the bullet might be very great.

But your position, which is what I am interested in… would there ever be a balancing if the defendant took the position this defendant has taken, that as counsel you probably raised if he wished you to, that there could be no cutting to obtain any evidence?

Joseph Ryland Winston:

I have not abandoned that position, but I have modified it to some degree, because under the facts as they presently exist, I don’t believe that I need a per se rule.

I believe if the rule is a reasonableness rule, the balancing of the need against the affront to dignity and the invasion of privacy and the risks, I believe that on these facts the balance falls in favor of Mr. Lee.

But there may very well be reasons why there should be a per se rule prohibiting all surgery.

William J. Brennan, Jr.:

Well, Mr. Winston, if we reverse, how much balancing may judges do in circumstances like this?

Joseph Ryland Winston:

How much balancing?

William J. Brennan, Jr.:

If we reverse, and say that the intrusion to this extent, at least, is permissible without violating any of the principles of Schmerber.

Joseph Ryland Winston:

I think that would create a great deal of confusion, because what we have here, the petitioners are urging this major-minor surgery distinction on the Court, but in this case it is not so clear, major-minor surgery.

There is a difference of medical opinion.

Dr. Mendez-Picon has come up with this kind of an intermediate category which is called minor surgery but under a general anesthetic.

I think in just looking at my attorney’s textbook or attorney’s dictionary, medical dictionary, I think under the definition of minor… major surgery… excuse me… one of the factors that they… one of the indicia that they point to in determining whether it is major or minor or how to characterize it is the presence of inhalation anesthesia, which will, of course, be present should the procedure go forward in this case.

Warren E. Burger:

It is also true that major surgery is sometimes performed with a local anesthetic, is it not?

Joseph Ryland Winston:

Oh, I think that is absolutely correct, Your Honor, because some local anesthetics are extremely dangerous.

I mean, a spinal anesthetic is a local anesthetic, or an epidural anesthetic is a local anesthetic.

Warren E. Burger:

Does the ex-ray dispose the caliber of the bullet?

Joseph Ryland Winston:

I don’t believe that it does.

The ex-ray–

Byron R. White:

But you know… you have the gun.

What is it?

Joseph Ryland Winston:

–The firearms identification expert testified that it was a.32 caliber revolver.

Warren E. Burger:

And you say the record does not show as of now what is the caliber of the bullet that is under his collarbone or near his collarbone?

Joseph Ryland Winston:

No, that is not in the record, Your Honor.

Warren E. Burger:

Is it ascertainable, if you know?

Joseph Ryland Winston:

I asked the firearms identification expert about that on cross examination at the hearing, and he said he could not make that determination from an ex-ray.

Byron R. White:

Well, he couldn’t say it wasn’t a.45, or it wasn’t a.22?

Joseph Ryland Winston:

Well, perhaps I should have had a more lengthy cross examination.

In this case they are admitting that this evidence is only corroborative.

Byron R. White:

Don’t you agree that… as I understand the state’s position is that it wouldn’t be any balancing in the state’s position as long as the evidence is relevant and would improve their case, and that is not a question of balancing, then they are entitled to it unless there is a substantial risk of death or disfigurement or some other kind of permanent in jury.

Joseph Ryland Winston:

That’s my understanding of the argument.

Byron R. White:

Yes, and that isn’t a balancing test at all, is it?

Once you decide it is relevant evidence, you get it, unless.

Joseph Ryland Winston:

Unless there is the… unless the doctor comes in and says it is major surgery–

Byron R. White:

Yes, well, that isn’t a balancing test of need from case to case.

It hasn’t anything to do with the need of the state except for just relevance.

Joseph Ryland Winston:

–I think that’s correct.

John Paul Stevens:

May I ask you if you think the test would vary at all depending on if the bullet were not in the accused person, but rather were in a third party, a witness’s body?

John Paul Stevens:

Would either have a stronger right to object than the other?

Do you know?

Joseph Ryland Winston:

I don’t see how the fact that the man was accused of a crime changes his Fourth Amendment right’s at all.

If anything, once he has been accused, he is cloaked with the presumption of innocence.

John Paul Stevens:

So you would say it is the same case.

I would be curious to know whether the state takes the same view.

It is the same case as if just a witness–

Joseph Ryland Winston:

That has, of course, come up twice in the past.

John Paul Stevens:

–Yes.

Joseph Ryland Winston:

The Supreme Court of Georgia says that… appears to say that defendants have fewer Fourth Amendment rights than witnesses do.

But the California Appellate Court has held that… they denied surgery.

The defendant’s attempt to get into the complaining witness body to recover the bullets, they denied, but in so doing they held that the Fourth Amendment rights of witnesses and the Fourth Amendment rights of defendants were the same.

John Paul Stevens:

So not only would you say that it is not different whether it is a witness or a defendant, but it also should be the same test if the defendant wanted the evidence as if the state wanted it.

Joseph Ryland Winston:

I don’t see any reason for any difference.

Byron R. White:

I suppose the danger to the state’s case is a matter of identification, whether the jury believes the victim.

Joseph Ryland Winston:

I think that’s essentially correct.

That is what he is representing that he is worried about.

Byron R. White:

And was there ever a line-up in this case?

The identification as far as the opinions go, they just say he identified him in the hospital.

Joseph Ryland Winston:

That’s all that’s in the record.

Byron R. White:

And I don’t know whether he was then in bad shape or not, the victim.

He had been shot, hadn’t he?

Joseph Ryland Winston:

Yes.

Byron R. White:

Was he in bad shape?

Joseph Ryland Winston:

He was–

Byron R. White:

Well, anyway, is that the only pretrial identification there was?

Joseph Ryland Winston:

–The confrontation in the emergency room, that’s the only one that’s reflected in this record.

Byron R. White:

There never was a line-up?

Joseph Ryland Winston:

There was not a line-up.

I don’t know whether there was a photographic spread or not.

Joseph Ryland Winston:

I can’t recall.

I would think it would be unusual.

If they have a good identification, why do anything to mess it up?

Byron R. White:

Well, it depends, I suppose, on how good a witness they think he is, or maybe–

Joseph Ryland Winston:

Well, I cross examined him at the preliminary hearing, and I couldn’t shake him.

Byron R. White:

–But I suppose if you were on the other side, you would like to have the bullet.

Joseph Ryland Winston:

I don’t know that that is so, Your Honor.

I know at least two of Mr. Garrett’s former colleagues whose opinion is that this case is a waste of time, that they would have tried this man and gotten a conviction two and a half years ago.

Byron R. White:

Whatever happened to the state’s position, if it ever expressed it, that habeas corpus is a… or this kind of an intervention by a federal court before there has ever been a criminal trial is wholly contrary to sound judicial practice?

It is really–

Joseph Ryland Winston:

The Younger abstention request.

Byron R. White:

–It really isn’t a Younger against Harris case, is it?

I mean, that isn’t–

Joseph Ryland Winston:

Well, the first thing is, whatever happened to it, it is gone now.

I mean, the petitioners are the ones now who have invoked the jurisdiction of this Court.

Byron R. White:

–Do you think it is a semi… it may be, but isn’t it a semi-jurisdictional thing?

Joseph Ryland Winston:

It affects the jurisdictional, but–

Byron R. White:

In the federal courts?

I don’t know why, if we don’t think the federal courts should get in this kind of a position, the state can’t–

Joseph Ryland Winston:

–Well, I think we had a nearly identical, very similar factual situation.

Byron R. White:

–Maybe we can waive Younger against Harris, but I don’t know.

Joseph Ryland Winston:

Ohio Bureau of Employment Services against Fidori, that was a case involving a state agency action.

The state agency was the defendant in a class action suit in the District Court.

They raised Younger abstention, even though it was a state agency case and not a criminal case.

The District judge decided against them.

The case was appealed to this Court.

They invoked the jurisdiction of this Court and did not raise the Younger question, and the holding here, which I believe was unanimous, was that the rationale of comity does not apply when they have submitted themselves to the jurisdiction of the Court.

They had the chance to challenge the order, and did not challenge it.

William H. Rehnquist:

But all you are saying is that the state has asked that the Fourth Circuit’s holding be reviewed, not that they submitted themselves to the jurisdiction of the District Court in the first instance.

Joseph Ryland Winston:

Oh, no, I had them brought into the District Court.

William H. Rehnquist:

Yes, and my understanding from what your opponent said was that they raised this point in the District Court, and the District Court ruled against them on this point.

Joseph Ryland Winston:

It is difficult to tell whether they raised the question or not, because they never filed any pleadings.

But there were two other defendants who were dismissed at the District Court level.

They raised Younger.

And it is my recollection that they did join in that.

William H. Rehnquist:

And the District Court ruled against them on that?

Joseph Ryland Winston:

Ruled against them on the Younger question.

Then they took it to the Fourth Circuit, did not present Younger, and then they brought it here and have not presented Younger.

But in addition there are other reasons why Younger I don’t believe is applicable, why I think the District Court was correct in its ruling.

Now, I have heard something here this morning for the first time, and that is that they have made the replicate firings from Mr. Watkinson’s gun, in other words, they have shot it and looked at it, and now they know that it has grooves on it that can be compared.

All I can say is that there is nothing in the record to that effect.

They had the firearms identification expert testify in the state court.

No evidence to that effect was brought forward at that time, and this is the first I have heard of it.

Warren E. Burger:

Wouldn’t that be a routine police practice in any such case as this?

Joseph Ryland Winston:

To go ahead and fire the weapon?

Warren E. Burger:

Yes.

Joseph Ryland Winston:

I would think so.

Warren E. Burger:

Yes.

So that whether it is in the record or not, we could judicially notice that that is standard police procedure.

Joseph Ryland Winston:

To fire it to see if it does have grooves on it, but then the question is whether it has grooves on it, and there is no evidence to that effect, but only what I have heard for the first time this morning.

Thurgood Marshall:

And the record of other cases will show that sometimes you can’t find any grooves.

Joseph Ryland Winston:

Oh, I think the–

Thurgood Marshall:

The barrel of the gun is so corroded, it will not show at all.

Joseph Ryland Winston:

Well, that’s in the evidence in this case.

I asked the firearms identification expert, can you tell right now whether it is identifiable or not?

No.

And then whether you have the bullet to make the comparison with, the replicate firing from Mr. Watkinson’s gun, that is only half the story, because then you go back to the questioned specimen.

Now, that questioned specimen could have been damaged on its entry into the body, and in fact Dr. Mendez-Picon did testify, printed at Page 34 of the Joint Appendix, that it was damaged in hitting the collarbone.

It retained its cylindrical state, but it was damaged somewhat.

It was bent.

Joseph Ryland Winston:

So, there has been some damage to the bullet that we know about in its entry.

And then the firearms identification expert testified that the length, the deterioration to the bullet from the bodily fluids is positively correlated with the passage of time.

He could not testify as to any particular rate at which that deterioration would occur, but there is a positive correlation, and furthermore, since he knew the gun was a.32 caliber revolver, he says, well, that pretty much limits you to a lead bullet, and that is apparently the softest substance out of which bullets are made, and I think his wording was that they deteriorate much faster.

And so, I think it is entirely speculative as to whether or not there is going to be any possibility to identify that bullet after two and a half years, and if the bullet after two and a half years, and if the bullet comes cut and it is not identifiable, they have nothing more than what they have now, and they can show… they bring in the doctor and show that he was treated for a gunshot wound, and bring in the doctor and say, here’s the ex-ray, this little white spot is the bullet, and do that whether or not they are allowed to comment upon the refusal to allow the surgery.

John Paul Stevens:

Mr. Winston, do you agree that the record does not show the reason for the refusal?

Joseph Ryland Winston:

–I believe that the record shows it through counsel.

In other words, Mr.–

John Paul Stevens:

And what is the reason?

Joseph Ryland Winston:

–He does not want to be cut open.

John Paul Stevens:

But that doesn’t tell us why he doesn’t want to be cut open.

Joseph Ryland Winston:

He believes that it is up to him–

John Paul Stevens:

Is this in the record… now, I am just asking… or are you now telling me what you think?

Joseph Ryland Winston:

–I believe that my position and Mr. Lee’s position through me has been consistent and the same at all times in that regard, that it is his and his doctor’s decision to make whether or not he goes under the knife.

John Paul Stevens:

And there is no explanation of why he might not want to have the benefit of exculpatory evidence available?

Joseph Ryland Winston:

No, Your Honor.

Warren E. Burger:

Was there any cross examination about what his medical history on surgery had been up to that time?

Joseph Ryland Winston:

The only thing in the record, I believe, is that for reasons I don’t know he has had two previous anesthesias without untoward consequences.

But again, moving over from the need aspect to the invasion of the privacy, the affront to dignity, and the risks involved–

Warren E. Burger:

Do you think the invasion of privacy is fundamentally different from what it was in Schmerber, extracting blood?

Joseph Ryland Winston:

–It is the same in kind, but much greater in magnitude.

I mean, in Schmerber, we are talking about a penetration that is something along the order of the tip of this pen, and now we are talking about, if Dr. Mendez-Picon’s opinion is correct, we are talking about an incision five centimeters long and three centimeters deep, a many, many, many times greater intrusion.

And, of course, I don’t think any physician-patient relationship is ordinarily necessary in the withdrawal of blood.

In other words, I think for Schmerber, one thing Schmerber required in the blood case was appropriate personnel.

I think appropriate personnel in blood withdrawal is a technician or a nurse.

For the type of surgery that was originally contemplated in this case, that is, when it was part of that class of case, that I have styled the “just beneath the skin cases”, where it is in the fatty tissue, and they make a small incision under local anesthesia and just basically pop it out, for that kind of… I think the reading of the cases shows that for that kind of operation, you don’t even need… you don’t need to go to the hospital.

You just go to the doctor’s office, and the doctor doesn’t even have to be a surgeon.

But in this case, not only does he have to go to the hospital, he has to have a surgeon, and not only does he have to have a surgeon, but he has to have the separate doctor who is the anesthesiologist.

And I think that the invasion of privacy and affront to dignity, I don’t see how it could be any greater than when the doctor is actually going to be breathing for the man.

At 135 in the appendix, Dr. Royan says,

“If you get to be anesthetized, then you don’t breath so deep. “

Joseph Ryland Winston:

“You see, in order to bring you to normal breathing, I will just squeeze the bag a little bit. “

“That expands your chest. “

“Otherwise, if I am not there, you know, you give anesthesia, you just walk off, you know, then the doctor has to be there to take care of the patient when he is under anesthesia. “

Question:

“What would happen if he weren’t exchanging with sufficient frequency and there is nobody there? “

“Well, then, eventually he will die. “

Sandra Day O’Connor:

Mr. Winston, you concede, do you, that the evidence of your client’s refusal to allow the bullet to be retrieved can come into evidence against him?

Joseph Ryland Winston:

Well, I wouldn’t make that concession at all.

If I were going to be the one that was going to be trying these indictments, and I will not be trial counsel in this case, I believe I would object to that.

I think he is just exercising his Fourth Amendment rights.

Sandra Day O’Connor:

You would not equate it, then, with admission into evidence of a refusal to have a blood alcohol test?

Joseph Ryland Winston:

Well, of course, that is a question with which I am not very familiar, because in our state that is prohibited by statute.

That evidence is not admissible in a Virginia DWI prosecution.

William J. Brennan, Jr.:

Mr. Winston, may I ask, you didn’t get… or rather, what relief you did get on habeas in the District Court was reversed by the Court of Appeals, wasn’t it?

Joseph Ryland Winston:

They vacated on the ground that there had to be, that the two remedies were so inconsistent that when the plaintiff petitioner prosecuted them both to the judgment stage, the Court was required to make an election.

William J. Brennan, Jr.:

But you brought both the habeas and a 1983 action.

Joseph Ryland Winston:

Yes, Your Honor, one paper.

William J. Brennan, Jr.:

And the relief you got was in the 1983 suit?

Joseph Ryland Winston:

We got a permanent injunction and a writ of habeas corpus.

William J. Brennan, Jr.:

And you got habeas, too, did you?

Joseph Ryland Winston:

From Judge Merritt.

Yes, Your Honor.

William J. Brennan, Jr.:

I didn’t understand what it meant that the Court of Appeals said it wasn’t cognizable on habeas because it related only to conditions of confinement.

Joseph Ryland Winston:

I have a very difficult time understanding that rationale, but that’s what they said.

William J. Brennan, Jr.:

Well, really, what I am getting at is, do we still have the habeas here, or do we have only the 1983–

Joseph Ryland Winston:

No, Your Honor, I cross-petitioned on the vacating of the habeas corpus, and it was denied.

William J. Brennan, Jr.:

–So the habeas is not here.

Joseph Ryland Winston:

No, Your Honor.

William J. Brennan, Jr.:

It is only the 1983 suit.

Joseph Ryland Winston:

Yes, Your Honor.

Joseph Ryland Winston:

Strictly a civil rights case.

William J. Brennan, Jr.:

All right.

You could have attempted to come here from the Virginia Supreme Court’s refusal to take your appeal?

I guess it wouldn’t have been a final judgment, would it?

Joseph Ryland Winston:

Well, the ruling of the Circuit Court of the City of Richmond is not a final judgment.

I mean, it is an interlocutory order in the case.

Byron R. White:

Didn’t you go up to the Virginia Supreme Court?

Joseph Ryland Winston:

On appeal and habeas corpus and prohibition.

It was all denied.

Byron R. White:

They turned you down.

Joseph Ryland Winston:

And I suppose that I could have tried to–

Byron R. White:

Would that have been… could you have brought that here?

Joseph Ryland Winston:

–I suppose that I could have tried, but I–

Byron R. White:

I know you could have tried, but I just… would it have been a final judgment?

Joseph Ryland Winston:

–Possibly on the prohibition aspect of the case.

But this case proceeded at a very quick pace at that point in time.

All the activity was between July and October, and most of it was in late October, and the United States Courthouse in Richmond was much more accessible.

Byron R. White:

Was the defendant in jail or on bail?

Joseph Ryland Winston:

He was in jail in lieu of $30,000 bond.

I filed a supplemental brief Monday to inform the Court that his incarceration status had changed.

He had a previously suspended imposition of sentence on another felony charge from 1977 or ’79, and the Circuit Court of the City of Richmond issued an order to show cause why that suspension should not be revoked, alleging as the sole ground the offenses for which he is awaiting trial and to which the surgery in this case relates, and they had the hearing.

Mr. Watkinson testified.

Sentence was… suspension was revoked, and now he is doing a ten-year term in the Virginia Penitentiary.

Thank you.

Warren E. Burger:

Do you have anything further, Mr. Garrett?

Stacy F. Garrett, III:

Just briefly, Your Honor.

I want to make sure that everyone understands that the Commonwealth’s position is not that the bullet is strictly cumulative.

It is the most reliable evidence that we have.

We have… an argument can be made by Mr. Lee that the identification at the time after the shooting in the emergency room was of a man who had just been shot, and can we rely on that?

But if we have the bullet, that is the most reliable evidence that exists that is going to show whether or not Mr. Lee is guilty of the crime with which he is charged.

Warren E. Burger:

Does the record show why the surgeons in the emergency room didn’t remove that bullet at the time?

Stacy F. Garrett, III:

Yes, sir, it was not life-threatening.

It was not life-threatening.

That is the only criteria they use to remove it, if it is life-threatening or not.

John Paul Stevens:

General Garrett, can I ask you if you would apply the same standard that you seek to apply in this case if the bullet were lodged in a witness rather than a potential defendant?

Stacy F. Garrett, III:

I was afraid you were going to ask that.

I am not really sure, sir, but I think it probably would be the same standard.

John Paul Stevens:

Because you have to… even though you have a lot of evidence, we have to treat him as presumptively innocent.

Stacy F. Garrett, III:

Yes, sir.

We probably end up with the same standard.

John Paul Stevens:

And I gather it would have to be the same standard if the defendant were seeking the evidence.

Stacy F. Garrett, III:

Yes, sir.

I can’t see any reason to have a disparity in that at all.

Byron R. White:

Do you think I correctly described your position in speaking with your opponent that as long as it is relevant evidence, you can get it unless there is a substantial threat of disfigurement or death or something like that?

Stacy F. Garrett, III:

Yes, sir.

Justice Marshall indicated sometimes that you can’t tell from the bullet whether or not the lens and grooves are there until after you get it.

It is the same situation in Schmerber.

They take the vial of blood, and it is broken before it gets to the laboratory.

The argument can be made that that is a waste.

It is not the same.

The Fourth Amendment–

Thurgood Marshall:

I don’t know.

In Schmerber you could go back and get another one.

Stacy F. Garrett, III:

–I don’t think you could, sir, because the time, the passage of time, the evidence of intoxication was dissipated, and the alcohol wouldn’t be in the blood, especially if it were a day or so afterwards.

The Fourth Amendment doesn’t preclude all searches, only those that are unreasonable.

I think the Commonwealth has shown through the evidence that it is reasonable in this case to subject Mr. Lee to the surgery, and I would ask this Court to allow me to do that.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.