PRESENTER: [INAUDIBLE] appeal
before the United States Supreme Court. Sitting on the panel
tonight is chief justice-- is Honorable Henry Friendly
of the United States Court of Appeals for
the Second Circuit. Sitting as Associate
Justices are Honorable Patricia Wald
of the US Court of Appeals for the District of
Columbia Circuit, and Honorable Nathanial
Jones of the United States Court of Appeals for
the Sixth Circuit. Incidentally, Jones will be
speaking tomorrow night-- or tomorrow afternoon
at 3 o'clock, one-on-one on the subject
of legislative attempts to curb federal
court jurisdiction. PRESENTER 2: Jen and I thought
it might be interesting for you to just hear
an explanation of how the participants got to
this competition tonight. During one's first year
at Harvard Law School, for those of you not
aware of the process, a student is required
to participate in one of the moot court competitions. That might be Jessup, it
might be one of the Ames alternatives, or it might
be the First Year Ames Competition run by [INAUDIBLE]. When one competes in Moot Court
Competition in first year, that's it. The end. There's no further
competition beyond that point. Unless as a second-year
student, one would want to compete in
qualifying rounds coordinated by Gregg Keller and
Anne [? Putty. ?] From the qualifying
round, four teams go onto the semi-final round. And from the semi-final
round, two teams come to this evening tonight. The issue presented
tonight is an issue taken from a real case. The record before you,
the Joint Appendix, was written by Dorian
and [? Judy ?] Bowman. And they've presented the Joint
Appendix that you have tonight. That's what two teams will
be arguing this evening. The two teams are-- I would like the teams to rise
as I pronounce their names. For the appellants, we have
Sarah Fox, Mary Higgins, Howell Jackson, oralist Andrew
W Loewi, Michael Poindexter, and Hugh Winokur. [APPLAUSE] On the appellants team,
one of their participants last year was [INAUDIBLE],,
who was a team member from the previous
rounds, but is pursuing independent research in
the college [? support ?] of this coming year. And for the appellee's team,
we have Louis Bilionis, Nicolas Grabar, Leslie
Ann Jones, Steven Levitas, and oralist Deval Patrick
and oralist Laurence Shtasel. [APPLAUSE] PRESENTER 2: We would
appreciate if, from now on, you would hold all your applause
until the final decision is made, or until the
oralists, at least, have been given the
opportunity to speak. [LAUGHTER] PRESENTER 2: We ask that
you take no pictures during the competition,
and we also ask that while the oralists
are speaking that you do not get up and move around. No exiting, no entering for
those of you not here yet. [LAUGHTER] PRESENTER 2: We have a reception
following the argument, and we hope that you will come. Thank you. [APPLAUSE] CLERK: Oyez! Oyez! Oyez! The Honorable Supreme
Court of the United States is now in session. All persons having
business before this court shall come forward and
give their attention, and they shall be heard. God bless these United States
and this Honorable court. HENRY FRIENDLY: --some
of it wouldn't apply. [INAUDIBLE] Clerk, call the case. Proceed. MICHAEL POINDEXTER:
May it please the Court, my name is
Michael Poindexter, my co-counsel is Andrew Loewi. Together with my
colleagues on the brief, we represent the
appellant, Lou McGuire. At issue here is a statute
which permits the imprisonment of a criminal defendant
without trial and without bail on the basis of a prediction
that he will commit crimes unless he is jailed. Under that statute, Lou McGuire
was held for almost three months awaiting trial
after his arrest last December on a
charge of burglary. He challenges that
statute here on a number of independent
constitutional grounds. As I will argue, later, the
pretrial detention statute violates the
constitutional prohibition against punishment
without conviction, as well as the excessive bail
clause of the Eighth Amendment. Mr. Loewi will argue
that the statute also contravenes the due process
and equal protection clauses of the Fourteenth Amendment. Before turning to those
issues, however, I will address the threshold
question of jurisdiction, and Mr. McGuire's claim that
his continuing personal stake in the outcome of
this case makes it a live controversy,
justiciable under Article III of the Constitution. Under the Ames statute-- HENRY FRIENDLY:
Well, good you're taking that up at the outset. I was a little
surprised at the way that was handled in the briefs. But you didn't deal with it
until you reply and read. MICHAEL POINDEXTER: That's
correct, Your Honor. HENRY FRIENDLY: Don't you think
your explanation is a bit lame? MICHAEL POINDEXTER: I've
got no experience in judging those explanations, sir. And we offered our
reasons and what we felt were justifications in that. HENRY FRIENDLY: Well,
nearest to a justification is that you hadn't
read our rules. This way, you deprive
us of the benefit of the appellee's response to
your argument on mootness-- I'd say depriving the
appellee of the benefit of having that privilege. MICHAEL POINDEXTER: I hope the
appellees will be able to deal with that tonight, Your Honor. HENRY FRIENDLY:
Well, I hope so too, but I don't think this
should pass unnoticed. MICHAEL POINDEXTER:
May I proceed? HENRY FRIENDLY: Yes. MICHAEL POINDEXTER:
Under the Ames statute, defendants charged
with specifically defined crimes of
violence are subject to pretrial incarceration when
charged with a violent crime IF they've been convicted
of a similar crime within the past 10 years,
are out on parole, probation, or bail for a similar crime
at the time of their arrest, or if harmed, or threatened
to harm prospective jurors or witnesses. In addition, a judicial
finding of dangerousness is required before a
defendant may be incarcerated. The statute, however,
allows dangerousness to be inferred from the
defendant's prior criminal-- HENRY FRIENDLY: I
thought you were going to talk about mootness? MICHAEL POINDEXTER:
I can go to mootness if Your Honor would like? HENRY FRIENDLY: Well, it's the
first thing we have to know, isn't it? Whether we have any jurisdiction
of this [INAUDIBLE].. MICHAEL POINDEXTER:
Yes, Your Honor. The State argues that Lou
McGuire's case is moot. Has no legal
interest, or redress, since his pretrial
detention is over. But the State concedes
that appellant will again be exposed to the Ames
statute if his conviction is reversed on appeal. This is, therefore, a case
capable of repetition and yet, because of the limited duration
of his pretrial confinement, one which persistently
evades review. The theoretical existence of
some class action alternative doesn't solve the problem
faced by Lou McGuire. PATRICIA WALD: Counsel, when
your client was preventively detained, did you take an
immediate appeal from the lower court's decision detaining-- MICHAEL POINDEXTER:
The detention order? PATRICIA WALD: Right. MICHAEL POINDEXTER: That's
correct, Your Honor. PATRICIA WALD: And
how long has it taken you to get
up here to argue before us the legality,
or the illegality, rather, of that order? MICHAEL POINDEXTER: Your
Honor, that detention order was delivered December
the 15th of last year. So we're here approximately
11 months later. He was-- his pretrial detention
terminated in March of 1981. HENRY FRIENDLY:
What kind of order do you want us to
enter if you-- if we agree with you on the matter? MICHAEL POINDEXTER: We
seek a declaratory judgment that the Ames statute, here in
question, is unconstitutional. For various-- HENRY FRIENDLY: As what? On its face, or as applied? MICHAEL POINDEXTER:
Both on its face and as applied, Your Honor. HENRY FRIENDLY:
And if we find it's unconstitutional as applied, why
do we ever get to the question whether it's
unconstitutional on its face? MICHAEL POINDEXTER: That
would not be necessary if you found that, your Honor. HENRY FRIENDLY:
Then, if we should find that it's
unconstitutional as applied, it wouldn't necessarily
be the same case if he were to be-- if his
conviction were reversed and he was to be
prosecuted again. The State might have more facts. MICHAEL POINDEXTER: Your Honor-- HENRY FRIENDLY:
[INAUDIBLE] you in trouble on the mootness problem? MICHAEL POINDEXTER:
Your Honor, we're not asking that this court
review the findings of fact made in the Ames state courts. We're arguing that this
statute, because it allowed those findings to be made
on the type of evidence that was presented, is
unconstitutional on its face. It was also unconstitutional
as applied to Lou McGuire. But that does not bother our
mootness argument, your Honor. As-- NATHANIEL JONES: What
is the facial infirmity on the statute? MICHAEL POINDEXTER: That it
allows the State to present its case against Lou-- pardon me-- Lou McGuire,
on hearsay evidence, which denies him a
right of confrontation against his adverse witnesses. Which is exactly what happened
to Lou McGuire in this case. HENRY FRIENDLY: Suppose there
had been no hearsay evidence. How can we say that-- should we condemn the statute
even as applied to a case where there is no
hearsay evidence? MICHAEL POINDEXTER: Do you mean
if the particular case had not been based on-- HENRY FRIENDLY: Based on
the identifying witnesses that turned up here-- been cross examined. MICHAEL POINDEXTER: On
that basis, your Honor, we contend the statute is
unconstitutional on Eighth Amendment grounds, and on due
process and equal protection grounds as well. The hearsay problem
is merely one of the independent
constitutional grounds that we challenge
this statute on. HENRY FRIENDLY: My
difficulty is that it seems to me this question of
what we're being asked to do and the mootness issue
get a little intertwined. Because if all we find is that-- if we should find, for example,
that the statute could properly be applied to a
case where there was no hearsay evidence-- of
where there was ample evidence other than this, but that
it was not properly applied in this case, how can
we decide anything that has any real bearing? Because we can't tell what
happened on a new hearing if McGuire's
conviction is reversed. MICHAEL POINDEXTER: Your Honor,
because the statute allows hearsay evidence, and because
it allows this incarceration, which is, we claim,
punishment to be entered without a formal finding
of guilt, that renders the statute unconstitutional. HENRY FRIENDLY: Oh, I know
some of your arguments are addressed to the
facial unconstitutionality. Others are not, and that's where
it seems to me very difficult to say that this is
moot [INAUDIBLE].. A never-never land
between the two arguments. MICHAEL POINDEXTER: Well, Your
Honor, Mr. McGuire's appeal is currently pending before
the Ames Supreme Court. If that appeal is
reversed, he will again be subject to the provisions of
the statute, whatever they are, regardless of whether the State
finds new evidence against him or has less evidence
at that time than it did in the initial. PATRICIA WALD: In his
appeal, which he's currently prosecuting from his conviction,
is he making any allegations that his trial or his-- was in
any way hindered by the period of preventive detention? Is he raising any of these
points in the context of the conviction that's-- MICHAEL POINDEXTER: We've not
made that claim, Your Honor. PATRICIA WALD: Why not? MICHAEL POINDEXTER: Because
we were not his trial counsel, and the record of
that trial is not on the record of this appeal. We're appealing strictly the
order of detention rendered by the Ames Superior Court. As we claim, the theoretical
existence of a class action does not solve Lou
McGuire's problem, because if his conviction
is reversed on appeal, he will again be faced with
detention under the statute. The State suggests that he
could bring a federal class action under 1983. As you know, this would
not give Mr. McGuire the relief he seeks, because
only a habeas corpus action can challenge the fact or
duration of the confinement. The State alludes to a
class habeas corpus action. The problem with that
is that he would still need to exhaust his state
remedies under that statute. And he would be
before this court in exactly the same
posture he is today. Furthermore, it would be
completely inappropriate for a federal judge to
grant some exception to the requirement
of state exhaustion since the Ames
Supreme Court had not had a chance to interpret
their own statute prior to this appeal, and
possibly save it from constitutional infirmity. This is exactly the type of
low level, low visibility deprivation that often occurs
in our criminal justice system. It's the kind the
Court noted in Sibron, one which is
frequently encountered, yet one which presents
deep and abiding constitutional problems, which
would otherwise escape review. For that reason, this
case ought not be moot. PATRICIA WALD: Are you
arguing, in addition, that he's suffering
any collateral consequences of the now
terminated period of detention? MICHAEL POINDEXTER:
There is at least one collateral consequence which
Mr. McGuire definitely suffers. That is, if he is brought up
on another pretrial detention hearing, the fact of this
pretrial detention hearing, under the Ames statute,
could be entered in evidence to the
court and said, Your Honor, this individual
was found dangerous at a pretrial detention
hearing last year, we recommended that you find-- PATRICIA WALD: You
really think that, since he's now been
convicted of the offense, and assuming that the
conviction is upheld, that in any future
preventive detention hearing, that that's likely to be
more prejudicial to him than the fact of the
conviction itself? MICHAEL POINDEXTER: I
don't know if it would be more prejudicial, Your Honor. It would certainly
be cumulative. It would certainly add to
the prejudice against him at a later hearing. PATRICIA WALD: Do
you have a money bail statute in the State of Ames? MICHAEL POINDEXTER: Not on
this record, Your Honor. PATRICIA WALD: Well, I
understand on the record that he was originally given a
$1,000 bail and made it, and then after a day or so,
the preventative detention-- so I gather from the
record that, indeed, you do have money bail-- MICHAEL POINDEXTER:
I would assume so. PATRICIA WALD: --in existence. Well, how is his
situation so much worse off than those
people who are incarcerated pretrial for more
than 90 days for want of making the money bail? MICHAEL POINDEXTER: There
is a grave difference between holding someone
in jail because they are unable to secure their
appearance at trial-- PATRICIA WALD: Do you think
it makes any difference to the person in jail? MICHAEL POINDEXTER: A subjective
test is not really appropriate here, Your Honor. The travails of people
in jail are simply beyond the scope of this issue. The fact is that when a person
is detained because a court has found that he can't be
released without endangering the community, that constitutes
the kind of condemnation that, coupled with the
detention, creates punishment. Detention without
that condemnation for the purpose of
securing presence at trial is unfortunate, but
in this case it's necessary to ensure
the continued operation of the judicial system. But what happened
to Lou McGuire is completely unrelated to
judicial administration. He was found dangerous and
confined on that basis, and that basis only. That is a traditionally
punitive reason. And the State concedes
that to impose punishment without a formal
finding of guilt is constitutionally defective. The State also
concedes that to im-- that detention plus
condemnation equals punishment. The only issue that remains
for this court to decide is whether the circumstances
of Lou McGuire's detention carried a sufficient
measure of condemnation to complete the syllogism. HENRY FRIENDLY: Well, isn't your
syllogism something like this-- that prevention is one objective
of criminal punishment, and therefore, anything
that involves prevention must be criminal punishment? That doesn't seem to me
to follow that completely. MICHAEL POINDEXTER:
Your Honor, prevention certainly is an
element of punishment, and in this case, perhaps
a definitive element. But certainly, not all
preventive measures in and of themselves
constitute punishment. HENRY FRIENDLY: Isn't that
what you're arguing to us? MICHAEL POINDEXTER:
No, Your Honor. Bringing a defendant to
a swift and just trial is a preventive measure in that
it brings people to justice as quickly as possible. That is certainly
not a punishment. HENRY FRIENDLY: No. But you argue-- you
say cases that-- you said, quite correctly,
that certainly one objective of criminal conviction
and imprisonment is to prevent
commission of crimes during the period of detention. And therefore, you
say that anything that involves that
kind of prevention must necessarily be
punishment no matter what the state's objective is. MICHAEL POINDEXTER: When
it's coupled with a finding of dangerousness, Your Honor. HENRY FRIENDLY: Would you
rather have the finding eliminated from the statute? MICHAEL POINDEXTER:
Your Honor, the State is inferring dangerous here
in an unacceptable fashion. They've not proven the fact
that underlies that inference. The inference of dangerous
is made on a criminal charge and arrest. Without a trial, and without
a formal finding of guilt at which it was found
beyond a reasonable doubt that the defendant
committed the act, the inference is
made from that act. So that-- HENRY FRIENDLY: If they're going
to have that kind of hearing and have him found guilty
beyond a reasonable doubt, might as well have the
jury in at that stage and convict him then and there. MICHAEL POINDEXTER:
We agree, Your Honor. Before you jail someone for 90
days because he's dangerous, he deserves a trial. NATHANIEL JONES:
Mr. Poindexter, let me ask you to spell out in
a little more detail what you referred to on-- what you were referring to
on page 26 of your brief where you talked about the less
restrictive alternatives that are available to the state
to prevent pretrial crime, reduce pretrial crimes. What are some of
these [INAUDIBLE]---- MICHAEL POINDEXTER:
The first and foremost is a speedy and efficient
trial, Your Honor. That gets the issue of
fact out of the way. There is a clear and
legally sufficient answer as to whether
the defendant did commit the act or not. On that basis, punishment
is completely appropriate if the defendant
is found guilty. PATRICIA WALD: But don't
you have that here? Don't you have a speedy-- I gathered from the record
here that he went to trial. Did he go to trial on the
ending of the 90 days? MICHAEL POINDEXTER:
90 days, Your Honor. It took three months in jail. PATRICIA WALD: Most speedy
trial statutes don't bring you to trial much before that. In fact, defense
counsel sometimes object to come into trial
much before a couple of months for preparation purposes. MICHAEL POINDEXTER:
Perhaps this would be a special exception
to a speedy trial act, Your Honor, in which,
because of the defendant's past criminal record, his-- PATRICIA WALD: You can ram
the trial the same day? MICHAEL POINDEXTER: If--
I'm sure the defendant might object, he might need time
to prepare his defense. But we would certainly
grant a trial before the end of three months imprisonment. The-- HENRY FRIENDLY: It hasn't proved
practical to do that, has it? MICHAEL POINDEXTER:
Pardon me, Your Honor? HENRY FRIENDLY: It hasn't proved
very practical to do that. Courts are having
a hard enough time living up to the 90-day period. [INAUDIBLE] talk about it, but-- MICHAEL POINDEXTER: Compared to
the expense of incarceration, it equals out. HENRY FRIENDLY:
[INAUDIBLE] expenses. The availability of
judges, lawyers, witnesses, moves the defense wants to
make to make before trial. MICHAEL POINDEXTER:
Well, Your Honor, if the defense moved
for a continuance, that would certainly toll the speedy
trial portion for the period the defense requested. NATHANIEL JONES: What level
of scrutiny, Mr. Poindexter, should this kind of a
statute be subjected? MICHAEL POINDEXTER:
Well, Your Honor, on equal protection grounds,
we argue strict scrutiny. In this case, the
scrutiny should be simply that the State has
enumerated a list of reasons here that 5% of the time
have proven to be accurate. 95% of the time, they've proven
to be inaccurate by the studies cited by appellants. Whatever the justifiable
reason the state might present for this sort of
incarceration is, 5% accuracy is simply
not acceptable. NATHANIEL JONES: So we look
to the state's objectives to see whether
there's a relationship between the objective
of the statute and some governmental purpose? MICHAEL POINDEXTER: Your Honor,
the governmental purpose here is explicitly stated to
prevent the occurrence of crime before people come to trial. But-- NATHANIEL JONES: Your
argument is that this is too broad and too nebulous? MICHAEL POINDEXTER: No. The purpose is fine, but
as applied to detention, it becomes an
unacceptable purpose to detain someone
under a judgment that the person is a
danger to the community. NATHANIEL JONES: You consider
this detention too broad a brush to be sweeping with
under these circumstances? MICHAEL POINDEXTER: Well,
this statute, certainly, because it sweeps 19 innocent
people under its wing as well as the one
person who statistically might commit a crime pretrial-- it certainly sweeps too
broadly to survive-- HENRY FRIENDLY: When
you use those figures, aren't you forgetting
the necessity of the judge finding that no
other method will protect? Those statistics don't
allow for that, do they? MICHAEL POINDEXTER:
Your Honor, the statute gives the judge no true criteria
that he can apply in this case. But even if the State's purposes
aren't necessarily infirm, and even if the Court
finds that this does not constitute punishment in the
technical or constitutional sense, the statute is repugnant
to the Eighth Amendment of the United States
Constitution because of the circumstances under which
it denied bail to Lou McGuire in a non-capital case. HENRY FRIENDLY: Are you going
to argue the Eighth Amendment point, or is your colleague
going to argue that? MICHAEL POINDEXTER: I was
going to argue it, Your Honor. HENRY FRIENDLY: Go ahead. But don't just say that
the Eighth Amendment applies, because there's
great doubt in my mind whether it does. MICHAEL POINDEXTER: As
the appellees concede, the true function of the
excessive bail clause is to prohibit
the abuse of bail. By denying bail
here to Lou McGuire under a finding of
dangerousness instead of merely to secure his
presence so that he could stand trial and receive a
just determination of his guilt or innocence, the
State of Ames has abused the right to bail
just as certainly as if it outlawed it altogether. PATRICIA WALD: I don't quite
understand that, counsel. It seems to me that most
of the historical material and historical studies,
the same ones that are cited by both
you and appellees, pretty well lay out a
pattern of history, certainly on the English side, and even
on the early Colonial side, in which bail has been
denied for offenses. Indeed, they were-- you may
say they were capital offenses, but the number of
offenses that were capital offenses in those days
parallel almost quite a bit with what we now
call felony offenses. It's really hard
these days, isn't it, for you to make the
straight argument that the right
against excessive bail really means a right
to bail in all cases? And even you don't argue
the capital exception. MICHAEL POINDEXTER: It's
not so much a list of which offenses are and which offenses
aren't that counts, Your Honor. The point is that capital
offenses fall into the logic that no person will
wait around to be tried if his life is on the line. Therefore, there is
no monetary surety that can guarantee the
presence of the accused. PATRICIA WALD: What
empirical studies do we have to show
that that's any more true than the empirical
studies, which you cite rather
contemptuously, underlying the preventive detention? That's just an inference,
the same logical inference that your opponents would draw
from in a preventive detention statute. MICHAEL POINDEXTER: Your Honor,
our whole system of justice is founded on an inference
that people can be deterred by the threat of punishment. Certainly, no study
shows that, either. This is just an underpinning
of the entire system we've inherited and have continued. PATRICIA WALD: Well, it's
the same kind of inference, I think, that the proponents
of the statute would suggest, that if you have committed
a crime in the past, a crime of violence, either
a conviction, parole, or probation, et
cetera, and there is a halfway to
reasonable doubt, namely substantial probability,
that you've committed it here, that it's a logical inference
that you're a dangerous person and ought to be detained. Why isn't that an inference
that can be accommodated in our jurisprudential system? MICHAEL POINDEXTER: Your
Honor, many, many people in our country and the
world are dangerous persons. Depending on the provocation
they are faced with and the circumstances are faced
with, that danger may or may not come out. To imprison someone
merely because you infer that that
person is dangerous is just foreign to our
system of jurisprudence. PATRICIA WALD: But
it's exactly what we've done in the
capital exception, except that you have taken
a particular type of offense at one extreme of the spectrum
and said, anybody who is suspected or has
probable cause, less than substantial probability,
that they have committed a capital offense, it is
perfectly all right to infer that they are so caught up
that they wouldn't possibly stay around for trial, and so
therefore we'll imprison them. There's really nothing
more to base that on logic than there is the other
end of the spectrum-- MICHAEL POINDEXTER:
Perhaps not, Your Honor. But it operates from a
fundamentally different perspective, and that
is that it's sometimes necessary to
incarcerate people-- capital defendants, those
who threaten judges, jurors, or witnesses-- to ensure that
our system of jurisprudence will get a chance to work,
and find guilt or no guilt. But if that calculus
does not apply, if you have a
defendant who is not under that adverse
motivation to flee, or who is beyond the deterrent
effect of current laws because he's already committed
the most heinous crime and faces the most
severe punishment, to incarcerate
someone who has not crossed that line simply
goes against the grain of the entire system. That's the argument
we make here. That it's not the crime list
itself of what is available and what is not
available, but it's why-- why bail exists. Because we assume
that people are deterred by the
threat of punishment. If you change that
assumption and round up the entire class
of 1982 and say, statistics show that 5% of
you will commit violent crimes in the next 20 years,
therefore, you're all in jail, we're free of crime. An easy solution, but under
our system of government, one that's strictly too drastic
and infringes too heavily on individual rights. And that's why we
challenge the statute on that basis in this case. That's why we say the Eighth
Amendment must be read so as to include a right
to pretrial freedom where the calculus works
in non-capital cases, and in cases where there are-- PATRICIA WALD:
Well, do you think that right against
excessive bail is violated in your ordinary
run of the mill situation where, after a
probable cause hearing, a judge looks at the defendant--
and no hearing at all in terms of hearsay or no hearsay-- looks
at his past record and says, I set $100,000 bail, which
he, the defendant, can't make, and so therefore, I
don't think there's any other condition
which will allow me to be sure you'll show up for trial. So therefore, if you
can't make the bail, you spend the time in prison. MICHAEL POINDEXTER:
Stack v. Boyle said if the bail is set
higher than that necessary to ensure appearance,
then it's excessive. So in that case, it would be. PATRICIA WALD: But
the judgement process by which you decide what
is high enough to require-- to permit presence
is not a hearing, is not a due process, adversary,
confrontation type hearing. It's a judge looking
at somebody's record and his community ties
and saying, you're in or you're out. MICHAEL POINDEXTER:
None of those carry the condemnation of
dangerousness, Your Honor. PATRICIA WALD: Well,
let's stop there a minute. If you are in jail-- and in most of
our jurisdictions, we have release on
recognizance statutes, meaning that a so-called
reliable defendant is allowed to get out without bail. If you are in jail for a long
time because a judge has made a judgment that you
cannot properly, reliably be released on your
own recognizance, in fact, you are in there, are you not,
to prevent you from committing the crime. And it would be a crime if
you didn't show up for trial. MICHAEL POINDEXTER: That would
be a crime, Your Honor, but-- PATRICIA WALD: So there'd
be some stigma attached to that too, wouldn't it? MICHAEL POINDEXTER: But,
certainly, much less of a stigma than that
attached to going out and creating acts of havoc
and violence on the community. PATRICIA WALD:
That's your judgment. And it may indeed
be correct, but it's an inference you're drawing. MICHAEL POINDEXTER: I see
your point, Your Honor. Thank you. HENRY FRIENDLY: Thank you. Mr. Loewi. [SIDE CONVERSATION] ANDREW LOEWI: May it please
the court, I'm Andrew Loewi-- NATHANIEL JONES:
Mr. Loewi, as you begin, I wonder whether
you would tell us why Gerstein versus Pugh
and Bell versus Wolfish are not controlling? ANDREW LOEWI: Your
Honor, Gerstein is not controlling,
in this case, because Gerstein
involved a decision that needs to be made by a judicial
officer as to whether there was probable cause after
an arrest has been made. What was not at
stake in Gerstein is extended
preventive detention, and the absolute denial
of pretrial freedom, which is at stake in an Ames
pretrial detention hearing. So the procedures that
the court laid out in Gerstein for a probable
cause hearing simply don't apply in this case. HENRY FRIENDLY: Well, actually,
the two defendants in Gerstein, apparently, stayed much longer
in jail than Mr. McGuire before their trial. ANDREW LOEWI: They
may have, Your Honor. HENRY FRIENDLY: One of those was
a capital offense and the other because he couldn't make bail. ANDREW LOEWI: That's
correct, Your Honor. In that case, however,
both defendants were granted access, as
defendants normally would, to the traditional bail system. They had a bail hearing. HENRY FRIENDLY: One of them
was and the other one wasn't. ANDREW LOEWI: Beg your pardon? HENRY FRIENDLY: One was, the
other wasn't-- the one who was tried for the capital offense. ANDREW LOEWI: Well,
presumably, there was a hearing at which it was
determined that bail would not be set for that defendant. In either case, they both-- HENRY FRIENDLY:
There doesn't need to be any hearing, the
statute prohibited it. ANDREW LOEWI: I'm not
sure that Gerstein says that the statute prohibited
bail in that situation. I think it could be
denied in that situation. HENRY FRIENDLY: [INAUDIBLE]
he didn't get it because of a capital offense. ANDREW LOEWI: That's
correct, Your Honor. HENRY FRIENDLY: The judge
was authorized to do that. ANDREW LOEWI: The procedures
at a bail hearing, however, as justice Wald has pointed
out, are really, substantially different than the
kind of finding that's a finding of
dangerousness that's involved in the Ames statute. At a bail hearing,
there really are not disputed issues of fact. What's before the judge
is the defendant's record and factual information,
much of which, perhaps most of
which, the defendant himself provides to the
court in terms of his ties to the community and so forth. There aren't really
disputed issues of fact which are involved
at a bail hearing, and so additional procedures
are not really required. But in a case like
this, what's at stake is a much more complex
finding, a finding that goes to the
dangerousness of the defendant and that kind of a
more complex inquiry. And the results of
that inquiry, which would be the absolute denial of
bail under any circumstances, demand a higher level
of procedural protection than the court
provided in Gerstein, or that are provided
at bail hearings. The Ames statute
that's at issue here authorizes the
preventive imprisonment of defendants prior to
trial if those defendants have prior criminal records. And the State has,
in effect, conceded that these statutory criteria
are simply not accurate predictors of pretrial crime. The State has not
challenged, and in fact, has cited as its own
authority, the leading studies in the field which indicate that
these criteria used in the Ames statute are accurate
in predicting pretrial violent crime
only 5% of the time. Thus, what the question
before the court, as far as substantive due
process and equal protection is concerned, is really whether
the Constitution permits the State to
incarcerate potentially as many as 20 criminal
defendants because of the statistical probability
that one of those defendants would commit a crime
prior to trial-- a violent crime, that
is, prior to trial. The State evinces,
apparently, little concern over the fact that the
statute, potentially, sweeps far too broadly. Sweeps into its
reach a large number of defendants, for whom
there's no basis to believe that they would be dangerous. PATRICIA WALD: Would you
think this statute would pass constitutional muster if
we had another study next year in which the 5%
predictability was up to 50%, or let's get over the
dividing line, 55%? Or would you be back
here still arguing that it was unconstitutional? ANDREW LOEWI: Your
Honor, our point is not only that
these criteria are not effective predictors
of crime, it is that there are no
effective predictors of violent pretrial crime. The only criteria that could
be used that would even begin to approach
the kind of close fit that the Constitution
requires are criteria that would involve
such characteristics as race, as sex, as age, as
socioeconomic data-- PATRICIA WALD: So
I assume that you-- tell me if I'm wrong--
would feel like most people, that, perhaps, there's lots of
unfairness in the money bail system too, that it penalizes
the poor versus the rich. So if you also feel that society
cannot move in this direction, and it cannot say a finding of
substantial probability plus a past record of committing
a, quote, "dangerous crime" entitles them to
commit somebody, society is basically
left with no options. No matter what the crime,
outside of a capital crime, that the person is accused
of, no matter what the record, it has no alternative but to
leave him free for the period until it can bring him to trial? Is that bottom-line
to your position? ANDREW LOEWI: Our
position is that there are less restrictive alternatives. It is true that our
position is that detention-- pretrial detention
is not an alternative. PATRICIA WALD: So you can take
away a little of his freedom? You can tell him
he has to report. You can tell him has to
live in a halfway house, that he has to get a third party
custodian, that he can't drive, that he can't leave the country. You can take away some of
his freedom on these, what you would call, poor criteria. What do you do-- you go
right up to the edge of jail, but at the point of jail,
it becomes unconstitutional? ANDREW LOEWI: That would be
our position, Your Honor. And the reason is this. Once you're crossing that line
and talking about imprisonment, you're talking about a far
greater deprivation of liberty than is involved in any of the
other measures you've cited. A deprivation of liberty that,
as Your Honor is well aware, has a substantial impact on
the likelihood that person is going to be convicted, on the
likelihood that that person is going to receive a much harsher
sentence when he is convicted. Every study has shown
that whether or not a person is incarcerated prior
to trial has tremendous impact. Now, that doesn't
per se make any kind of pretrial incarceration
unconstitutional. But it does mean that
when you cross that line and imprison somebody
prior to trial, you are visiting on that
person a far more substantial deprivation of liberty. And a deprivation of liberty
that really requires that there be a very exacting level of
scrutiny applied by the court to the State's practices. PATRICIA WALD: But you're not
too worried about the fellow who's in jail because a judge
has decided that he's not reliable enough to show up
for trial without a high money bond-- and we don't even have
an empirical study that shows 5% of those wouldn't show up. We just infer it logically. ANDREW LOEWI: Your Honor, I'm
worried about those people too. But those people are not
before the court in this case. It's not the issue
that's before the court. I think that one reason
that the State seems to evince so little concern
about the possibility that large numbers of people
will be swept unnecessarily into the reach of this
statute is that, in effect, the operation of the
statute serves to-- it operates in such
a way that the State will never be confronted with
evidence of its own mistakes. Once a defendant has
been incarcerated, it's simply impossible
to determine whether that
defendant would have acted lawfully if he had been
out on bail instead of in jail. In that sense, the statute
is really self-reinforcing. If it appears to be reaching
those defendants who, or some of those defendants who
would commit pretrial crime, it appears to be
working no matter how many defendants
who are non-dangerous are at the same time
incarcerated along with them. NATHANIEL JONES: Mr. Loewi,
I was waiting for you to-- in response to Justice
Wald's question a moment ago about the degrees
of deprivation, I was waiting for you to refer
to a portion of your brief in which you'd made
reference to a law review article written in 1975 in the
University of Pennsylvania Law Review. And I wonder whether you
are abandoning that argument that you incorporated
into your brief, or did you just
fail to mention it? I think the author was the
Chief Justice of this Court. [LAUGHTER] ANDREW LOEWI: That is
correct, Your Honor. Do you mean are we abandoning
the argument that there are procedural-- NATHANIEL JONES: You cited
that law review article and it sounds rather
persuasive to me. And I wondered why you did not
use this occasion to raise it? ANDREW LOEWI: I
simply thought that-- HENRY FRIENDLY: Perhaps
because the article was about administrative
proceedings and not about trials. ANDREW LOEWI: That's correct. We only cited Your Honor's
article in reference to its specific reference as
to deprivations of liberty being of a very high order. HENRY FRIENDLY: Well, no one
takes this lightly, but is it really true there's nothing
effective that the state can do in an extreme case? Suppose you had a bank
robbery, and in the course of a perfectly lawful search
of the robber's apartment, they found dozens of plans
to rob other banks which they couldn't identify-- police couldn't identify. So they just can't do anything? Like putting those people
on away for 60 or 90 days until they're tried? ANDREW LOEWI: Your Honor, the
reason they cannot is that none of the criteria that are
available to us, to anybody, there are no criteria
that exist today that are in any way accurate
in predicting future pretrial violent crime. HENRY FRIENDLY: Why did
they have these plans of the other banks around? Were they collecting
plans of banks? I know collectibles are
all the rage now, but-- ANDREW LOEWI: Your Honor,
I would respectfully suggest that the likelihood
that they would carry out those plans after already
having been arrested in their first attempt would
make it highly unlikely that they would
continue in that effort. It would certainly seem to
pose grave risks to them. HENRY FRIENDLY: Mr. McGuire
waited only 25 days after he was released on
parole before he, at least as the state
alleges, strayed from the righteous path. ANDREW LOEWI: As
the state alleges. The question is, what
evidence does the state have? And we suggest that
there is no evidence. HENRY FRIENDLY: Suppose
you had a case where they had really strong evidence. Six bishops saw him do this. ANDREW LOEWI: Your
Honor, our point is that if such
evidence existed, that would be a different case. Although, it would
certainly not undermine the independent constitutional
challenges that we raise, and that counsel
is talking about. HENRY FRIENDLY: That's
why I keep getting puzzled as to whether you're really
saying that this statute is facially unconstitutional--
there's no conceivable circumstances under which it
could be properly applied-- or whether you're relying
the peculiar problems with this case. ANDREW LOEWI: No, Your Honor. Our challenge is to the
facial constitutionality of this statute. The reference to the
incarceration of Mr. McGuire really serves as an example
of how that statute operates. But our claim is that under
the Equal Protection Clause, under the Due Process
Clause, and under the claims that my co-counsel
has discussed, that the statute cannot stand. In terms of Equal
Protection and Due Process, it simply acts with
so much imprecision, it sweeps into its reach so many
people on a basis that really is unfounded, in terms
of whether or not they're dangerous, that it
simply cannot meet the exacting level of scrutiny required
by the Constitution. And those claims
aside, we further believe that the procedural
protections provided by the statute are
woefully inadequate. And using Mr. McGuire's-- just the case of Mr. McGuire's
incarceration as an example shows how inadequate those
safeguards really are. PATRICIA WALD: Which
safeguards are so inadequate? Are you speaking just
primarily, or solely, about the lack of a
right of confrontation as to one's accusers? Because otherwise,
he can have counsel, he can put on whatever
witnesses he wants to. ANDREW LOEWI: The lack
of any right to confront and cross-examine
adverse witnesses-- HENRY FRIENDLY: Well, he has
the right to confront them if they're available. ANDREW LOEWI:
That's in this case, of course, and in
any similar case-- HENRY FRIENDLY: Well,
has this court ever held that the Confrontation
Clause was violated because of the State's
failure to produce a witness who wasn't available? ANDREW LOEWI: Your
Honor, it would be violated if the
State then presented hearsay evidence that-- HENRY FRIENDLY: I mean,
the criminal trial itself. Sure, it may be a violation
of the hearsay rule. And if that's part
of the State's law, your client would be entitled to
a reversal in the state courts. But has the Supreme
Court ever said that a violation in the case
where the witness wasn't available, use of
hearsay testimony violates the Sixth Amendment? That was one of the big
points of the distinction the Court has drawn
between the hearsay rule and the Confrontation Clause. ANDREW LOEWI: Your
Honor, I'm not sure whether, under the
Confrontation Clause, they've made such a holding. Our point is not that
this proceeding would be subject to the provisions
of the Sixth Amendment-- it's obviously not
a criminal trial. But in every kind of proceeding
where important decisions have been based on disputed
findings of fact, the Court has mandated
that a defendant be allowed to confront
and cross-examine adverse witnesses. That right is plainly
denied in this situation. HENRY FRIENDLY: For example,
in Morrissey against Brewer, the Chief Justice
was at some pains to say that the parole
revocation case, as you know-- that the defendant had
the right to confront the witnesses if available. ANDREW LOEWI: Your
Honor, I think that Morrissey
quite clearly held that it was not simply a matter
of whether those witnesses were available. I'm quite sure that Morrissey
and Gagnon both provided for confrontation
and cross-examination of adverse witnesses,
only with the exception that if the State could
show that there was good cause to believe
that a witness might be in danger, that otherwise
the burden is on the State to produce that witness. That is, Your Honor, at
the preliminary probation-- or parole revocation proceeding. I think there was a
looser exemption that is provided later on at
the actual final revocation proceeding. But at that proceeding that
Gagnon and Morrissey both dealt with, that is
comparable to this one, in other words, the
preliminary decision which would send a parolee
or probationer back to the penitentiary
for a 60-day period, at that point,
confrontation, I believe, must be provided
unless the State can show good cause that the
witness would be in danger. Aside, Your Honor, from
the issue of confrontation, however, the substantial
probability standard that the State supplies
for the statute is further evidence
of its infirmity under procedural due
process analysis. The substantial
probability standard is simply a standard that
has no established history in American jurisprudence. PATRICIA WALD: It
has an established history on the civil side. We talk all the time about
the standard for injunction and stays--
substantial probability of prevailing on appeal. ANDREW LOEWI: Your
Honor, on the civil side, that is, it is true, one
of a large number of terms that courts have applied-- PATRICIA WALD: My only point-- I won't belabor it because you
have a limited amount of time-- is it's not a term
that's totally foreign to our jurisprudence. And it certainly carries with
it some connotation of something more than probable cause,
which, at least under one interpretation of Gerstein
v. Pugh, not yours I'm sure, would say that upon
a probable cause, you can go ahead and hold
a person in jail if they can't make bail for trial. And that's less than
substantial probability. ANDREW LOEWI: Your Honor,
unlike the situation where a preliminary
injunction is involved, here we're dealing with a
decision that, if erroneous, involves the necessary
incarceration of a criminal
defendant for 90 days. The State Supreme
Court could only identify the substantial
probability standard as lying somewhere
between the showing that the State must
make to establish probable cause, and the clear
and convincing standard. Even the State Supreme Court
was unable to say whether or not the substantial
probability standard was more or less than a
preponderance of the evidence. And in those circumstances,
courts simply do not have the kind
of guidance that they must in order to decide what-- HENRY FRIENDLY: I thought
the State Court said it was somewhere in between
preponderance and clear and convincing? ANDREW LOEWI: No, Your Honor. The record was quite clear. The Court said that it was
somewhere between the showing necessary to establish
probable cause. HENRY FRIENDLY: Oh, yes. Probable cause. ANDREW LOEWI: Our point
is that it doesn't even-- they have not even
identified whether or not it's above or below
preponderance standard. HENRY FRIENDLY: Getting
back to our friend Morrissey and Brewer, the Court
says there's a narrow inquiry-- this is the final hearing,
which was much more formal than the earlier one. It says "narrow
inquiry, the process should be flexible enough
to consider evidence, including letters,
affidavits, and other material that will not be admissible in
an adversary criminal trial." Why doesn't that
include hearsay? ANDREW LOEWI: Your Honor
is absolutely correct. I was referring to the initial-- HENRY FRIENDLY: The initial
hearing is nothing, really. Has to be, because
it has to be done very properly at a place where
witnesses may not be available and so forth. It's the final hearing where
more procedural protection is given. ANDREW LOEWI: Your Honor, I'm
sure that the decision does state that, both in
Gagnon and Morrissey, that as far as the
preliminary hearing to determine parole or
probation revocation, only when the state can show
good cause as to why a witness should not be-- to show, in fact,
that the witness would be endangered by appearing
are confrontation rights waved. But, even assuming
for the moment that my reading is wrong,
what's at stake in Morrissey is a much lower
level of-- there's a much lower level
of liberty interest that's at stake in Morrissey. In Morrissey, we're
dealing with what the court has called conditional liberty. We're dealing, in Morrissey,
with a convicted felon who is serving his sentence,
has been released on parole or probation, and might
be sent back to jail to continue that sentence. Here, we're dealing with
somebody who has not yet been convicted of a crime. And a much higher level of-- a much higher liberty
interest at stake here compels even a
higher degree of process than the court provided
in Morrissey and Gagnon. I thank the Court. HENRY FRIENDLY:
Thank you, Mr. Loewi. Now we hear from the appellees. Mr. Shtasel. LAURENCE SHTASEL: May
it please the Court, my name is Laurence Shtasel. And together with my
co-counsel Deval Patrick-- NATHANIEL JONES: What's the
pronunciation of your name, sir? LAURENCE SHTASEL: Shtasel, sir. NATHANIEL JONES: Shtasel? LAURENCE SHTASEL:
Yes, Your Honor. Together, with my
co-counsel Deval Patrick and our colleagues
on the brief, we represent the people
of the State of Ames. This case concerns
the State's power to detain certain defendants,
between arrest and trial, in order to protect the
safety of the community. Now, we fully intend to address
the merits of this case, but before we do that, there
is a preliminary jurisdictional matter must be addressed. In short, we contend
that this court has no power to hear this case. The reason is that an
actual controversy, as required by Article
III of the Constitution, no longer exists between Mr.
McGuire and the State of Ames. Mr. McGuire's challenge
on this appeal is that his pretrial detention
was unconstitutional. At this time, that
pretrial detention is over. Therefore, there is no
dispute that this court is capable of resolving. PATRICIA WALD: Well, if I
understand your argument, you're suggesting that since,
as I asked appellant's counsel, they got up here as fast as they
could, they took their appeal-- it was to no dilatory
tactics that they didn't get here sooner than they did. So we can assume
the same thing would happen on the next
time around if he were preventively detained. Your suggestion is, every
time somebody is preventively detained, their
counsel has to drop his defense of his
particular client and run out and start a class
action in the federal court or in the state court,
and attack frontally the preventive
detention statute? Now, is that really
either practical, or is it really necessitated by a case or
controversy requirement, here? Isn't it a highly onerous burden
to put on a criminal defense? LAURENCE SHTASEL: In the
first place, Your Honor, the question of the
evasion of review is not simply a
discretionary issue. It's a question that goes to
this court's jurisdiction. Now, appellant has
claimed that they fall within a special
situation of jurisdiction in which the Southern
Pacific doctrine defines the boundaries of Article III. There are two requirements
under that doctrine, not merely that the statute
evades review, which we don't-- PATRICIA WALD:
Likelihood of repetition and capable of
evading review, right. LAURENCE SHTASEL:
And in this case, because such a series
of speculative events would be required before
this appellant would be faced with the challenge
process all over again, that aspect of the
test is not met. And additionally, the
statute, we argue, does not evade review. What I'm suggesting
is that we simply don't look to the
second aspect of it before we address what other-- HENRY FRIENDLY: It
does evade review. Your point is that, under the
Southern Pacific doctrine, it's the particular person who
must show that he'll suffer. But hasn't the
defendant done enough by alluding to this possibility
of reversal of his conviction, and repetition of
this performance? LAURENCE SHTASEL: Your
Honor, the existence of a separate pending appeal
in state criminal conviction has never been held to
demonstrate the required reasonable expectation
that this court has held as the necessary
standard of expectation before capability-- HENRY FRIENDLY: I don't
think the question has been presented, but what do
you say about the two cases that the appellant
cites in the reply brief on pages two and three? LAURENCE SHTASEL: Your
Honor, appellant cites the case of Vitek v. Jones. But Vitek did not involve
a separate pending criminal conviction, the outcome
of which would, in any way, affect the likelihood of
repetition of that case. In Vitek, this Court simply
held that a prisoner who had been subjected to
unconstitutional transfer procedures stood a reasonable
expectation of being subjected to those transfer
procedures again, since he was back in prison. And the case does not in any
way stand for the proposition that the existence of
an ancillary appeal on a criminal conviction
in state court provides the requisite
demonstrated probability that this Court
held in Weinstein was the proper
standard of repetition. HENRY FRIENDLY: How about
Pennsylvania against Mimms? LAURENCE SHTASEL: Pennsylvania
against Mimms, Your Honor, was a case that
involved the doctrine of collateral
consequences as yet another area of the mootness-- HENRY FRIENDLY: But it wasn't
an appeal by the defendant, it was an appeal by the State. LAURENCE SHTASEL: That's
correct, Your Honor. HENRY FRIENDLY: The
State didn't suffer any collateral consequences. It only suffered lack of
collateral consequences if-- or lack of adverse-- only suffered the
possibility of adverse effect if there were another
criminal prosecution. Why isn't that very
close to this case? LAURENCE SHTASEL: In
Pennsylvania v. Mimms, the Court held that the State
would suffer certain collateral consequences in future trials if
the evidentiary standards that were at stake in the case
came out the way they did. It also cited in a-- HENRY FRIENDLY: Do
you mean in cases involving other defendants? LAURENCE SHTASEL: That's right. That's right. But the case involves an
entirely distinct area of the mootness inquiry than the
issue of capability repetition. HENRY FRIENDLY: I don't know
what the particular issue was in Pennsylvania
against Mimms, but I'd thought from reading
the reply brief that these adverse
consequences the State was worrying about related
to the particular defendant. At least, that's what the
appellants say in the sentence at the bottom of page two,
going over to page three. They say the State's
interest was entirely contingent upon the
defendants being charged with another crime. Is that right or wrong? LAURENCE SHTASEL: I believe
that's correct, Your Honor. HENRY FRIENDLY: Well,
then isn't that coming pretty close to this case? LAURENCE SHTASEL: No,
it isn't, Your Honor, because the concerns in
the collateral consequences area of the mootness
inquiry are that, in the usual instance, that
the defendant would suffer adverse legal
consequences as a result of a criminal conviction. In this case-- HENRY FRIENDLY: Oh, sure. The case where the
defendant is appealing after he's served his-- or bringing some collateral
remedy after he's served his sentence. They're clearly
indistinguishable. But that wasn't
the situation here. In Pennsylvania against Mimms,
it was the State that was-- LAURENCE SHTASEL: But,
Your Honor, I think that the reason-- the case didn't involve an
inquiry into the reasonableness of repetition. But if it did, I
think a concern was that the State would be burdened
in every criminal conviction as a result of this holding. Not merely in the
particular case that involved that defendant. Now, in addition, as we-- PATRICIA WALD: Why don't
we have some analogy to the collateral consequences
here, for this man? What is wrong with
the argument, or what is erroneous about the
argument, that it's one thing to be
convicted of a crime, it's another thing to
have been convicted of a crime which could
still be reversed on appeal? And also have a
finding by a judge that you have been
dangerous enough to be-- not even to be allowed
to have your liberty pending trial. LAURENCE SHTASEL:
There simply are no adverse legal
consequences that can attend to this finding. PATRICIA WALD:
Don't jump so fast. Why are there not
some consequences, not only on his record-- it's a form, it's a finding-- it's a judgmental
finding that he was too dangerous
to be allowed out in the community pending trial. Now, all by itself,
even regardless of what consequences
it had upon, if any, upon his subsequent
conviction, why isn't that like a
mini-conviction on his record? He certainly could-- if
it had been a conviction, he certainly could have-- even though he was out of jail-- he could have appealed it. It wouldn't have been moot. Why isn't this a form? After all, if the State is
willing to create a new form called preventive
detention, then maybe it has to be
willing to recognize a new form of stigma,
namely a finding that your preventively
detainable. LAURENCE SHTASEL: That
may be so, Your Honor. I would take issue
with the following. That as the doctrine stands,
the only adverse consequences are ones that are deemed to
be legal adverse consequences. Appellant has only suggested
that this information might be used against him in some
later pretrial detention hearing, were that to occur. But if one looks
closely at the way that the statute is
structured, there is no place in the
finding, by a judge with respect to the
statutory inquiry, that allows for that
kind of information to be used in order
to detain someone. All one looks to are the
criteria with respect to whether a past
crime was committed, whether there is
substantial probability of his present crime
having been committed, and whether there are any
conditions of release that will satisfy the safety
of the community. NATHANIEL JONES: And what
are those conditions? That he's rootless, that he
doesn't have any employment, what else? LAURENCE SHTASEL: The
conditions are usually tangible ones that deal
with whether there's some work release program
that could be established, whether there are people that
could take him into custody, that sort of thing. NATHANIEL JONES: And
to show you the-- pardon me, go ahead. PATRICIA WALD: No, please. [LAUGHTER] NATHANIEL JONES: To show
you the problem that arises from this, if we
merely look at McGuire's case where, during the
course of the hearing, the probation
officer came in and-- or the parole officer came in
and testified that this parolee was without employment. And that was factored
in, was it not? LAURENCE SHTASEL:
Yes, Your Honor. But all those would be
reconsidered at a later hearing which is where
appellants client's-- NATHANIEL JONES: But the
fact that it was factored in shows the mischief. Why didn't they go further
and inquire as to whether he was looking for employment? Or whether the
unemployment rate was 40% for a person of his
particular age group, or what have you. This statute seems
to invite all kinds of misapplication of the
rules which can result in-- lead to the result
that we have here. Let me just ask you whether
what this statute is intended to accomplish is to create
an intermediate category of punishment for a person
who is socially obnoxious, or has a track record which some
prosecutors, and police chiefs, and police officers
may find troublesome? LAURENCE SHTASEL: If we're
now turning to the merits, then I'm fully prepared
to discuss the issue-- NATHANIEL JONES: Let's go
back to the statute itself. Here is a statute that creates
a process whereby a person can be detained prior to being
convicted of anything, and a whole scheme of
procedure is set in motion. And following the playing out
of this scheme or this scenario, a person can be put in jail,
not on the basis of a conviction beyond existing
reasonable doubt, but because of a court
or some hearing officer finding substantial probability
an offense has been committed. Is that not
providing a rationale for locking people up prior
to adjudicating their guilt? LAURENCE SHTASEL: It
provides a rationale for locking certain
defendants up prior to an adjudication of
guilt. The challenge is that-- NATHANIEL JONES: Where
do we find justification for that in the Constitution,
with the presumption of innocence that we have? LAURENCE SHTASEL: The
presumption of innocence, your Honor, has been held most
recently in Bell v. Wolfish to refer to an evidentiary
standard, or a standard with respect to a burden of
persuasion at criminal trial, and has not been held,
in that case at least, to refer to the
pretrial process at all. The question really
is, I believe, is there a right
in the Constitution that the appellant
can look to to show that the State has somehow
denied him something that he is due? Now, the way that the right
has been raised by appellant is, first, that there is some
right to pretrial release, except where it would otherwise
be impossible to secure a defendant's presence-- NATHANIEL JONES: But there
is a constitutional guarantee of presumption of
innocence, is there not? LAURENCE SHTASEL:
There is an overriding theme that one does not
assume guilt prior to trial. But this is a regulatory
measure designed to protect the safety
of the community, which is perfectly within the State's
power, at least that idea. The question is, how do
they transgress any rights that the Constitution
establishes for an individual who has
entered the criminal process? The first right that appellant
looks to is looks to see-- the first place
that the appellant looks to locate such a right
is in the Eighth Amendment, as we've heard tonight. More specifically,
that part of the Eighth Amendment which states
that excessive bail shall not be required. Historically, though, in
England and in this country, that clause has
always been understood to refer to a check
against the misuse of bail. That is, a check against the
practice of purposely setting the rate too high. PATRICIA WALD: Let me
ask you a question. Suppose the Ames
legislature said, well, enough of these
halfway measures. Now, crime is a terrible problem
here and everybody-- everybody who's arrested and has
a probable cause hearing to show that they have committed
a crime, never mind what kind, goes to jail until
they can be tried at the end of the 90 days. That's it, no exceptions. That's constitutional? LAURENCE SHTASEL: That would
be a much more difficult case. PATRICIA WALD: I'm
sure it would be, but is it constitutional
by your analysis? LAURENCE SHTASEL:
By our analysis, there may be a right within
the Fourteenth Amendment that, at least, begins to talk about
what happens to a defendant in the run-of-the-mill
case prior to trial. And there may be certain
problems with the rationality of that classification. That anyone who commits a crime
a substantial probability is deemed to be dangerous,
and therefore, could be detained
prior to trial. We would argue that the
Eighth Amendment simply does not address that problem. Because, as this court
held in Carlson v. Landon, the Excessive Bail
Clause does not represent a
constitutional commitment about pretrial
release in general. In fact, it doesn't address
itself to the issue at all. So the question, in
your hypothetical, Your Honor, would be,
is there some problem with the classification
that's involved? And with respect to
the equal protection and due process challenges
to this statute, my co-counsel will
address those issues. But in the meantime,
we argue that it's not presumptively valid. But this case is certainly
a much more different one. If the Eighth Amendment, then,
doesn't address the issue-- PATRICIA WALD: Apparently,
the Eighth Amendment addresses nothing under your analysis. It's surplusage. LAURENCE SHTASEL: Not
at all, Your Honor. The Eighth Amendment addresses
exactly what it says. It addresses the issue of
where a judge purposely sets an amount of bail
too high, or where the judge misuses what the-- PATRICIA WALD: It
doesn't say that. It doesn't say-- the
Eighth Amendment, no judge shall set
excessive bail. It says excessive bail
shall not be required. Suppose the legislature passed
a law which said $100,000 bail for every petty larceny case. LAURENCE SHTASEL:
Again, Your Honor-- PATRICIA WALD: That's
not our case, I know. But I'm-- LAURENCE SHTASEL: No. [LAUGHTER] Your Honor, in that case, it
would be a difficult decision to decide whether the
Excessive Bail Clause referred to that because the
judiciary has traditionally, and as far as I know, has
always been the only body-- the only branch of government,
that has actually set bail. If the legislature were to
start a practice of setting actual money amounts for
bail for specific crimes, then perhaps, the Eighth
Amendment would refer to that. But the issue-- PATRICIA WALD: What if the
legislature says no bail? Under your analysis, the Eighth
Amendment has no application. LAURENCE SHTASEL: That's
correct, Your Honor. If the Eighth Amendment, as
read historically and has always been understood in this
country and in England, doesn't address
this specific issue, appellant must show that the
purposes of the Ames statute are somehow inconsistent with
the scheme of American justice, or the tradition
and the consensus, about how our criminal
process operates. In fact, they have shown-- PATRICIA WALD: Not
just the purposes. But also we need to worry
about the means used toward the purposes if you're
operating on a due process analysis, wouldn't you? LAURENCE SHTASEL:
Yes, Your Honor. But this court, in
every case that it has found that a right exists
for a criminal defendant in a state court,
has looked to see whether it fit in with
the fundamental scheme of American justice, as has
been understood through history and through tradition. In this case, appellant has
come forward with no evidence that such a constitutional
prohibition exists against the specific
purposes that the State has invoked here. In fact, this Court,
in Carlson v. Landon, suggested that the purposes-- in a case involved
the detention prior to deportation proceedings of
aliens, held that, in fact, the Excessive Bail Clause
was not implicated. And also, that the purpose
of preventing danger to the community was a
legitimate purpose in that-- PATRICIA WALD: That was
the same year they decided, or the same term, they
decided Stack v. Boyle-- in which they said
that bail should never be set at a level which was
any higher than that needed to ensure presence at trial. I think it's a fair analysis,
counsel, that the scholars and everybody else
have been debating for, however many years,
20, 25, exactly what it meant to have those
two ships passing in the night in the same term. LAURENCE SHTASEL: You're
suggesting that Carlson is not absolutely conclusive on this? PATRICIA WALD: I am
suggesting Carlson is not absolutely conclusive. You read me rightly, counsel. LAURENCE SHTASEL: I
would agree, Your Honor. Except I would suggest
that Stack v. Boyle is not as applicable in this case,
and that Stack referred only-- PATRICIA WALD: I'd concede
it's a wash for that term. So you can continue
your analysis. LAURENCE SHTASEL:
I'm not so ready to concede that they cancel
each other out, Your Honor. I think that, for the
purposes of this case, Stack referred to
the fixing of bail and only referred, at most,
to the Excessive Bail Clause. And perhaps, was decided-- although it's somewhat
unclear, and Justice Jackson takes the majority
to task for doing so. But it's somewhat unclear
whether that case was not determined under the
Federal Rule of 46, which existed at that time,
and never even addressed the constitutional issue. Carlson seems somewhat closer
to the case that we have. There's further evidence,
also affirmative evidence, that the purposes for
restricting pretrial release have not solely been confined
to those two purposes that appellant argued. For example, in
capital cases where bail has traditional
been denied, there is nothing to suggest that
the only reason for that denial has been in order to secure the
presence of those defendants at trial. And in fact, in the
federal bail statute of 1966 in Section 3148,
the Congress explicitly recognized that dangerousness
was a legitimate purpose to consider when
thinking about whether or not to grant bail
to capital defendants. Furthermore, there's
no general consensus, with respect to the states,
that the securing of defendants' presence at trial and
protection of witnesses are the only acceptable
purposes for restricting pretrial release. Nine states, as we
cite in our brief, either through
constitutions or statute, recognize that those purposes
are not the only ones. HENRY FRIENDLY: And
many states refuse bail in cases beyond capital-- that are not capital
cases, don't they? By statute. LAURENCE SHTASEL: I'm
sorry, Your Honor. HENRY FRIENDLY: Many
states have statutes which make non-bailable offenses
other than capital offenses. LAURENCE SHTASEL: That's
correct, Your Honor. Finally, if I might just
address for a moment an issue that seems to have been somewhat
soft-pedaled by appellant in this case, but
your Honor seemed to be concerned about it. There is no right to
pretrial release on the basis that this would be
necessary to effectuate the right to a fair trial
under the Sixth Amendment. Historically, the
right to fair trial has never been so understood
to include an absolute right to pretrial release. That in cases involving denials
of bail or where bail cannot be made, there's no question that
those defendants share the same right to a fair trial as
every other defendant. It simply has not been held
that a necessary ingredient of that fair trial right is one
that requires pretrial release. The Court seemed to
establish that connection in Bell v. Wolfish. And finally, there's simply
no evidence in this case that the criminal
conviction of appellant was the result of anything
but the fairest of trials. Appellant's second major
constitutional argument is that this statute
constitutes punishment without an
adjudication of guilt. The definition of punishment
is, indeed, a murky issue, and one that has arisen
in a variety of contexts. But the precise issue here
is whether the State of Ames can do what it
did to Mr. McGuire without a conviction
for a crime. We argue that the
answer to that is, in fact, that it can do that. Appellant concedes that
the fact of detention alone does not necessarily
amount to punishment, so the important
thing to consider is the meaning which attaches
to that detention, the message that it conveys. And here, the message is
clearly not a punitive one. NATHANIEL JONES:
What is this message? LAURENCE SHTASEL:
In fact, Your Honor, there is no explicit
message being sent to the-- [LAUGHTER] LAURENCE SHTASEL: It is the
absence of a punitive message that we say-- NATHANIEL JONES: The
message is that this person is dangerous and can't
be trusted at liberty. Is that the message? LAURENCE SHTASEL: Your
Honor, I think that-- NATHANIEL JONES: That's
a judgment has been made, hasn't it? LAURENCE SHTASEL: Excuse me? NATHANIEL JONES: That's
a judgment that has been rendered by some tribunal. LAURENCE SHTASEL:
The judgment is more that there are no conditions
of release that, at the moment, would satisfy the
safety of the community. NATHANIEL JONES: So that
makes him dangerous? LAURENCE SHTASEL: Excuse me? NATHANIEL JONES: That makes
him dangerous, doesn't it? LAURENCE SHTASEL: That means
he poses a risk of danger. NATHANIEL JONES: And you
say that's not a message? LAURENCE SHTASEL: We
say that that does not amount to condemnation, which
is necessary for punishment. NATHANIEL JONES: You think
people do not cross the street if they were to see him coming? [LAUGHTER] LAURENCE SHTASEL: If you stay
out of his way, Your Honor, that person won't be
coming to summons. NATHANIEL JONES: What if
he's ultimately acquitted? LAURENCE SHTASEL: If he's
ultimately acquitted, we suggest that,
because this is merely a prelude to a full trial,
if he's ultimately acquitted, that the system, in
its full trial form, has then made the
statement-- that it is making to the community at large,
that this person is not guilty of the crime,
and is not someone to be shunned by the community. If, in fact, the
person is convicted, as appellant was
in this case, it is hard to imagine an
additional, significant quantum of stigma being attached
to someone who has then been convicted of a crime. NATHANIEL JONES:
Now, to come back to the real world, if a person
is acquitted after having been determined to be
dangerous, do you think that acquittal ipso facto
will cleanse him of all stigma? LAURENCE SHTASEL: I think
it would, Your Honor. Additionally-- PATRICIA WALD: How could
it, in many situations? I mean, again, in my
colleague judge's real world. Very often, you are acquitted
for all sorts of things because the jury couldn't say
beyond a reasonable doubt, because a witness
didn't show up, because of a variety of circumstances. And yet, that defendant
would leave the courtroom free to walk on the street,
with a judge having decided, after a hearing with some kind
of evidence, made a finding, that there was no condition or
combination of any condition of release known to
the judicial mind, that would reasonably assure
the safety of that person in the community. How can you realistically say
that with that as a finding by a judge, that he hasn't
been mini-convicted? It's the only word I
can describe it with. LAURENCE SHTASEL: Your Honor,
presented in that extreme form, there may be, perhaps, lingering
effects to the defendant. But this Court has never-- PATRICIA WALD:
Lingering effects are called collateral consequences,
legally, aren't they? Sometimes. LAURENCE SHTASEL:
There may be those. Although not of a
legal nature, as we suggested in the
mootness discussion. But this court has never
held that the mere effect on an individual, or what
are the determinate measure of punishment. This Court, in Kennedy
versus Mendoza-Martinez, explicitly rejected
the notion that we look to the effects
on the individual. But rather, we look
to the purposes which underlie that statute. In this case, the
purposes of the State are not to condemn
someone for past acts, not to exemplify this person-- PATRICIA WALD: How
about In re Winship when it looked at the
juvenile delinquency statutes which had been
supposed to have nothing but a rehabilitative purpose? That said in every one
throughout the country-- they looked at the
quantum of proof that was necessary to convict-- not even convict, adjudicate
a juvenile of a crime. And said, it looks
like something akin to a criminal
conviction enough for us to insist upon beyond
a reasonable doubt. Now, the purpose of every one
of those juvenile statutes was to rehabilitate. And yet, the Court in those
decisions, in In re Gault and in In re Winship,
did look at the effects. They weren't solely
determinative, but they certainly
looked at the effects. They described in
great detail what it was like to be a juvenile
and incarcerated in a training school. I don't think you
can say, can you, that the courts
ignore the effects? They may not be
solely determinative, but they don't
ignore the effects in deciding what's punishment. LAURENCE SHTASEL:
Your Honor, I'll assume you grant time for me
to answer the question even though that red light is on? PATRICIA WALD: With my
colleague's indulgence, I will. HENRY FRIENDLY: Surely. LAURENCE SHTASEL:
In re Winship was a case where the
statute specifically said that, if this person is
between 8 and 15 years old, that person is considered
to be a delinquent. But the effect was that
the statute referred to any criminal conviction. In other words, it said that if
this person, but for the fact that he is between
8 and 15 years old, does an act which would amount
to a criminal conviction were it committed by someone
who was over the age of 15, then that person is considered
to be delinquent. The Court found
that that was simply too transparent a condemnation
to be evaded by the mere words that this is rehabilitative. In this case, the
State has done nothing to say that this is a
bad person to be shunned by the community for past acts. It has simply said
that there are no conditions for
release that will satisfy the safety of the community. PATRICIA WALD:
But it's also said that the judge must have made a
finding that there is a, quote, "substantial probability
that the person committed the offense for
which he was present before the judicial officer." So that it's certainly
not divorced totally from consideration of what
the actual criminal act is. LAURENCE SHTASEL:
No, but I think the statute, as my
co-counsel will suggest, is tailored to achieve the
minimum that is necessary, or to invoke the minimum
that is necessary to achieve the end that it seeks, which
is the prevention of crime. I yield the floor to my
co-counsel, Deval Patrick. Thank you. HENRY FRIENDLY: All
right, Mr. Patrick. DEVAL PATRICK: May I
proceed, Chief Justice? HENRY FRIENDLY: Yes, please. DEVAL PATRICK: Thank you, sir. And may it please the court. The remaining issues before
the Court this evening go to those Fourteenth Amendment
arguments of Mr. McGuire. Before I get there, I
think it's important that the Court remember and
keep before it the context in which this case arises. Three weeks after
his release on parole from an eight-year
sentence for armed robbery, Mr. McGuire was indicted for
another crime of violence. Now, because of
that arrest, because of his criminal history, and
the nature of that arrest, the district attorney moved
for the hearing called for under the statute to
consider whether detaining Mr. McGuire was the only way-- that
is, detaining him until trial, was the only way to
ensure public safety. His two remaining
challenges go to-- and I'm simplifying here-- first of
all, the basis on which he was brought to
that hearing, that is the use of his criminal
history to forecast this to the community, and the
fairness of the procedures the statute provides to
consider ways to diminish the Court's concern. And in the first
instance, Mr. McGuire is claiming that criminal
history is an imprecise way of inferring criminal risk,
and that the statute should, therefore, fail. And the parties are
agreed, and they have been all along, that these
criteria at the first level are imperfect. But that doesn't make
them any less rational. And the Court has so held
in the case of Marshall against the United States. And in fact, the
studies that you saw bantered around in the
briefs and again brought up at argument, show at
least a relationship between criminal
history and the courts-- or a reasonable concern
for criminal risk. But the statute
doesn't stop there, and it's important that
it doesn't stop there. Judge Newman, in
the trial court, was required to make two
further findings-- to resolve, he must ask two
further questions. The first was, was it
substantially probable that Mr. McGuire had committed burglary? And the second was, were there
no conditions of release which would assure public safety? In the first
instance, in finding substantial probability,
the Ames Supreme Court required that Judge Newman be
satisfied that the state had more than enough evidence to
support a suspicion that Mr. McGuire had committed burglary. But that she'd not require
so much that she'd be unequivocally convinced of it. The challenge to that,
and the only challenge to that statute that the
appellant has brought forward, is that it's vague. We argued in the brief,
and we believe correctly, that the vagueness
doctrine doesn't apply. But that really isn't-- HENRY FRIENDLY: How do you
get around the case of Giaccio against Pennsylvania,
which the other side cited? I'd first thought you were
probably right on that, but when I read that
case, I began to wonder. DEVAL PATRICK: Your Honor,
in the first instance, and we agree, Giaccio
does give us some problems because it isn't clear-- HENRY FRIENDLY: How
do you answer them? DEVAL PATRICK: It isn't
so clear in that case. Although the Court
in that case did acknowledge that it was
conduct that the vagueness doctrine usually addresses. The Court said that the
problem with the statute was that the state
court findings, which had developed over the years
to construe the statute, hadn't made it any less specific
than it was on its face. And even if the
vagueness doctrine-- HENRY FRIENDLY: It hadn't
made it any more specific. DEVAL PATRICK: That's right. Thank you. Really, what Mr. McGuire
seems to be complaining is not that vagueness as
a constitutional question makes a substantial probability
standard improper or infirm. But in a sense, that because
the Ames Supreme Court construed substantial
probability for the first time in his case, really his
counsel did not have time, or did not understand how to
get ready for this hearing. How to be able to meet
the State's evidence. If there were a record
to sustain that argument, there might be due
process implications. But the record here shows that,
in the first instance, Mr. McGuire, though he now says that
he was confused at the hearing, he never asked
for clarification. There was no
indication, and there's no indication in the
record-- and on this appeal Mr. McGuire has brought
forward no indication that he was prejudiced
in anyway by his supposed lack of understanding about what
substantial probability meant in fact, or what,
in fact, evidence he would have entered
in the hearing had he known what
substantial probability was. And even after the
hearing is over, after the judge had made
the required findings, the statute
contemplates Mr. McGuire being able to bring forward
evidence, in a sense, to displace the State's
showing and to get right back into court
and reopen the issue-- PATRICIA WALD: What kind
of evidence could he have? Now, what you had here,
as the record shows, is that they identifying witness
was, quote, "unavailable." And so you had the policeman
giving his account of what the only eyewitness--
you didn't even have the equivalent
of a Wade lineup. You had the policeman saying
that somebody he never saw before, and doesn't
know much about, came up and described somebody
and said they saw that somebody breaking into a warehouse. Policeman ascertained not
even, according to this record, that there'd been
an actual burglary, but that there was
such a warehouse with a window pane broken and
the lock jimmied, whatever. And then had this other fellow,
who didn't show up, identify him on the street. Then this fellow
disappears, apparently, is not at his known address,
and I quote to the record here-- the policeman
testifies that when he rode with him in the car,
and they saw this fellow walking down the street, he says, "I
asked Mr. Robinson to get out of the car and look again." And he said, quote,
"it looks like him." That's the sole piece of
identification you have-- by hearsay, Even by the
policeman's hearsay, is that somebody he doesn't
know and can't locate, said about this defendant,
"it looks like him." Is that substantial probability? DEVAL PATRICK: Judge Newman
apparently thought it was. If the court is asking,
first of all, questions that relate to the second claim
that Mr. McGuire has brought forward, that the hearsay
admitted in the case was duly unfairly admitted. In the first place,
just going to the-- well, I was going
to the record first. Go to the broad question. That is, whether hearsay should
be allowed in this setting. And the appellant
agrees in their brief that the method that
the Court has shown us for asking the question
whether hearsay is appropriate in
these situations, or indeed, the question
whether additional procedure is appropriate, is to take,
in the first instance, the private interest
involved, in this case, that liberty interest
of a criminal defendant between arrest and trial,
the public interest was, in this case, concededly
substantial of protecting people from the
risk of bail crime, and then asking whether
requiring confrontation in this case would
have added anything to the fact finding process in
light of the interest at stake. PATRICIA WALD: And you
think it wouldn't have? DEVAL PATRICK: Well, in this
case, Your Honor, and in all cases, it's important
to reconstruct the scene into which the hearsay came. We're in a courtroom,
Mr. McGuire is there, he's before a trained neutral
judge with the opportunity to assess-- PATRICIA WALD: But the
trained neutral judge never had the opportunity to
assess the credibility of the eyewitness who
identified Mr. McGuire. Let's assume the policeman
was telling honest that it was the most credible
witness that ever appeared. It's what he said, and
what was in his capacity to say, that's disturbing,
at least in light of our-- to some of us, in light
of our background. It's not the fact that the
judge and the policeman could exchange information. DEVAL PATRICK: But it's not
divorced from that fact. The point is that the court
has required us, in the past, to look at the whole context
and ask whether hearsay would have added anything. Whether excluding hearsay
would have added anything-- PATRICIA WALD: I'll tell
you what excluding hearsay-- it would have subtracted
something so that you would have had nothing. If you hadn't had hearsay here,
you would have had nothing. And you couldn't have
made any kind of a finding because it would
have been nothing. DEVAL PATRICK: That's
certainly true. Let's go to the record. In their brief, in his
brief, the appellant says, in effect, that the
only significant discrepancy between Mr. Robinson's
description and Officer [INAUDIBLE] description was
that Mr. Robinson saw dark hair and dark trousers,
and [INAUDIBLE] saw light hair and light trousers. And then, in their
belief, appellant goes on to say that the light
was worse for Mr. Robinson than it was for [INAUDIBLE]. And if there are
concerns about bias, or prejudice on the part of
the absent and out of court report declaring, no one
is in a better position to know that than
Mr. McGuire himself. And all the statute required
of Mr. McGuire's counsel is that he stand up and say so. PATRICIA WALD: Mr.
McGuire never-- I mean, it's conceivable that
he never saw this man before. But I don't
understand your point about how he would be
in the best position to raise any questions about
the veracity of someone that isn't in the courtroom,
that he doesn't know who he is, where he came from. This man might have
been a mental case. He might have been paranoiac. He might have been a well-known
informant, a dope addict, a whole series of things,
which there's no opportunity for the-- I don't wish to take any
more of your valuable time. I'm simply making the point
that if this statute is capable of being applied to a
record like this, it raises, I think, and highlights some
of the constitutional problems with permitting an
absence of confrontation. DEVAL PATRICK: Your Honor, in
the first place, as we've said, it's impossible to argue
that it isn't always better to have an out of court
declarant present. But the Court has instructed us
that that is not the inquiry. The Court is not
going to look to how to write a better standard,
but to ask, instead, whether with the private and
public interest at stake here, as I outlined, and
with the presence of a legal [INAUDIBLE],, and
other formalities, whether it's necessary to have
confrontation in every case, or to leave it to
the fact finding. And if you look at the
cases, Madam Justice Wald, that we cite to
support that theory, the Court has done
precisely that. It looks to the whole scene-- I'm now thinking of
cases like, for instance, Morrissey against Brewer
where hearsay is allowed, at least the
preliminary hearing, as a first step toward-- a deprivation of,
at most, two months. Vitek against
Jones, for instance, where the Court said-- where
the Court required hearsay because there was no
judicial fact finding. Although, I would
say that there had to be independent fact finding. In other words, the Court is
looking at all the factors and trying to decide
whether, given what has to be
accomplished, and given what the criminal defendant in this
case needs to have protected and should have
protected and respected the addition of the requirement
of confrontation in every case is necessary. And effectively,
our argument has been all along that with a
hearing before a neutral fact finder, and with Mr.
McGuire represented by counsel, a hearing
on the record, specific findings
required by the judge, having to be explained
in a written opinion. And all this record
and the opinion with the assistance and help
of briefs, the counsel going after a full direct review
before the state Supreme Court, is enough to ensure
that hearsay will be given its proper weight. And that is the inquiry
the Court has shown us. NATHANIEL JONES: Mr. Patrick,
let me ask you a question. The same question I
asked your co-counsel. Does not this statute,
the Ames statute, create a new classification
of offenders, or offenses? Is that not what this
statute seeks to do? That is, an
intermediate definition of socially obnoxious
conduct which can lead to the power
of the state coming down to protect the rest of us? DEVAL PATRICK: No, Your Honor. And the reason is that-- I think what's happening
is you're concerned about the appellants kind of
conclusory characterization of the statute as being a
loose finding of dangerousness. That's not what's required. NATHANIEL JONES: You
said a moment ago, and maybe I'm taking what
you said out of context or misapplying it-- you used the term bail crime. What were you referring to when
you talked about a bail crime? DEVAL PATRICK: I'm sorry,
that was the shorthand. But-- NATHANIEL JONES: Is that
a crime that one commits-- is charged with
committing while on bail? DEVAL PATRICK: Or
release before trial. NATHANIEL JONES: So then
we are trying to get to a-- the legislature was
trying to address a category of conduct that
occurs during a certain period of time. Between arrest and conviction. DEVAL PATRICK: That's correct. But the statute doesn't
respond to an act having occurred as usual
punitive statutes do. It's a prospective
measure in the sense that it tries to use this, at
least in the first instance, a very broad class of persons
with a history of violent crime who have been charged
with a violent crime. Narrowing that by the
second level inquiry, that is the inquiry into
substantial probability, to only those
people against whom the State is likely to be
able to prove its case. And then, through
the last inquiry, that is the reasonable doubt-- not the reasonable doubt,
the reasonable conditions of release inquiry, looking
at particular circumstances and the defendant's
own environment which will assure the Court
that there need be no concern. NATHANIEL JONES:
What are the criteria that a court is to look at? Can you direct us to some
criteria, definition, legislative history, that will
help us, or help a court that's faced with this
problem, determine what is substantial
probability, for instance? DEVAL PATRICK: I wish we had
some legislative history. It would certainly make it-- NATHANIEL JONES: But isn't
that one of the problems with this statute? DEVAL PATRICK: That may be one
of the problems, your Honor. But I don't believe the Court
is in the habit of striking down statutes because the State
doesn't write its basis. If the Court is concerned-- NATHANIEL JONES: Well,
it certainly should be. Those who have to enforce--
those who have to apply the law and enforce the law have
to have some guidance as to what the intent
of the legislation was. Do you? DEVAL PATRICK: Your
Honor, the intention seems to be able to be divined,
if you will, from the-- NATHANIEL JONES: Divined? I think you used the right term. I think divined is just what-- I think that aptly describes
what a court has to do. DEVAL PATRICK: Look
at what happened here. In the first
instance, Judge Newman heard on the conditions
of release question. First instance, Judge
Newman heard testimony from Mr. McGuire's
parole officer that he had no job,
no local relatives, and no close associates. NATHANIEL JONES: But
what does that mean? DEVAL PATRICK: Your Honor,
it means a great deal. First of all,
undisputed information. NATHANIEL JONES: Does that mean
any person who has served time, and who is presently
unemployed, can be considered as likely
to have committed a crime? DEVAL PATRICK: That's not
what it means, Your Honor. What it means is now-- we're at the last inquiry
that the court has to make. What it meant in this
case is that Judge Newman had enough information
to apply what he called the usual
conditions of release. And we can imagine
what they were. Parole supervision, for example,
would have been unsatisfactory. We knew-- NATHANIEL JONES: Did the
parole officer say that? DEVAL PATRICK: That's
not a conclusion that the statute requires
the parole officer to make. The statute requires
that the judge be presented with
information for the judge to make conclusions. And we know, because
Mr. McGuire committed, or at least was alleged to
have committed a crime-- I hesitate to say committed
because his appeal is pending on the conviction. But committed a crime
while he was on parole, while he was supervised,
so that was unsatisfactory. We know release into custody was
unsatisfactory because he had no local family or relatives. We know, for instance, that
work release was impossible because he had no job. And even then, the inquiry
need not have been closed. Mr. McGuire is still in a
position to come forward with alternatives. In fact, Judge Newman
asked him if he was prepared to put forth
that kind of information, and he said no. NATHANIEL JONES: Well, let us
just consider, for a moment, the part of the record
dealing with the testimony of the parole officer. Carol Wagner, who was asked-- she said she was the parole
officer in Ames City. Question, "are you the parole
officer for Lou McGuire? Yes, I am." Question, "can you tell us
where the defendant resides?" And she gave the
address and so forth. "Do you know whether the
defendant lives there alone?" Answer, "he has told
me that he does." Question, "does he have
any relatives in the city." Answer, "he has told
me that he does not." Question, "is he
currently employed? The last time I spoke with
him, on December 9th, 1980, he told me he was not." Mr. Moses, I have no
further questions-- and no further questions,
and the witness was excused. Nobody bothered to
ask his parole officer whether this person
had sought employment, whether the parole
officer had interceded to help him get employment. There was no development of
circumstances which could have, perhaps, explained the fact
that this person was unemployed. DEVAL PATRICK: But you said
it yourself, Your Honor. Nobody bothered. And who's in a better position
to do it than Mr. McGuire who has counseled aid? In fact, as we even
ask him-- as I said, whether Miss Frederick-- Miss Frederick is Mr.
McGuire's counsel, would be asking questions,
but she declined it. NATHANIEL JONES:
What you've done there is raise a
question which causes me to have considerable concern
over this whole approach. And that is this creation of a-- I keep coming to
this one question, whether we have created a
new classification of crime. And whether we have
shifted the burden now onto a person who ordinarily
has certain constitutional guarantees, and
certain presumptions, to which he or she
can avail themselves in a criminal proceeding. And this seems to-- I'm just wondering
whether or not this is a shorthand way
or a backdoor effort, on the part of the State,
to deal with people that it finds somewhat difficult? DEVAL PATRICK: I
hope not, Your Honor. And I don't think so. The State's interest in the
case, and in this statute, is to protect people from the
risk of crime which may not have been addressed in trial. NATHANIEL JONES: But
are there not less intrusive and less sweeping
ways of accomplishing that? DEVAL PATRICK: There
may be, your Honor. We've been able to find none. And it's our position
that those that have brought forth by the
appellant don't help us at all. In fact, most of them were
available, and most of them were conditions of
release, which as I said, Judge Newman would
have considered. The point is that the
reasons the appellant has asked about and brought
forward these less restrictive alternatives is in
this kind of cloud of fundamental rights
analysis that they suggest in their brief. The State has never contended
that Mr. McGuire does not have a fundamental
right to liberty like any other individual in
this constitutional scheme. Only that fundamental
rights analysis as a term of art and
constitutional jurisprudence does not apply to
liberty deprivations in the criminal process. And that's because, unlike other
so-called fundamental rights, the constitution is
specific about how and when a state may
intrude upon the liberty of a criminal suspect. And that's with probable cause. And that does not
mean that the State's responsibility-- the
State can do whatever it wants at that point. In this case, the State
of Ames' responsibility ended with a probable
cause hearing. But it does mean that the
way the constitution calls upon the State to express
its respect for Mr. McGuire's liberty interests is to
provide fair process. HENRY FRIENDLY: Why couldn't
the State have moved to revoke McGuire's parole? DEVAL PATRICK: Excuse
me, Your Honor? HENRY FRIENDLY: Why
couldn't the State have avoided all this by moving
to revoke McGuire's parole? DEVAL PATRICK: You
mean and avoided having a statute at all, sir? HENRY FRIENDLY: No, avoided this
particular case from arising. DEVAL PATRICK: I suppose
that was State's mistake. NATHANIEL JONES: They
went to the trouble of calling a
probation officer in, the parole officer, to testify
about this person's reporting habits and living habits. All this parole
officer has to do is just to violate the person. In fact, parole officers have
great discretion and authority. And once they had this person
under these circumstances, parole officers are
able to go in and have the person cited in, and
adjudicated a parole violator and shipped back. That's a less all-- that's
a less restrictive way of-- that's a way that's
more restrictive than this whole process. DEVAL PATRICK: A
person only deals-- I see my time is up. But just to respond
to that, sir. If that procedure only
deals with the people in this class of persons
that the State is concerned with who are on
parole, it doesn't deal with the whole group of-- HENRY FRIENDLY: They
had a fellow whom they could have dealt in that way. I don't know why they didn't-- I suppose that's not relevant. Or, alternatively, you could
argue that this, in effect, was a violation of his
conditions of parole and that all these other-- is valid on that
ground, however, it might be in some other case. DEVAL PATRICK: [INAUDIBLE]
gave the answer, sir. It's-- HENRY FRIENDLY: Didn't argue. [CHUCKLES] PATRICIA WALD: With the
indulgence of my colleagues, I have one last question. I'm intrigued whether or
not the proof in this case could even have risen
to what we call, in an analogous Fourth Amendment
context of probable cause, a reliable informant? Even before a policeman can
depend upon an informer's evidence that he saw
a crime take place, or that something has
taken place in order to get a search warrant or
possibly even to make a Terry stop, or an arrest, certainly. That informant has to be,
or at least we've been told, has to be a reliable
informant in most cases. He never saw this man before,
and apparently never saw him afterwards. Wasn't-- DEVAL PATRICK: Mr. McGuire, or-- PATRICIA WALD: No, Mr. Robinson. There wasn't even-- DEVAL PATRICK: Do you mean that
Mr. McGuire had never seen-- PATRICIA WALD: No, I
mean the policeman. After all, the policeman
acted only pursuant to Mr. Robinson's information. And yet, Mr. Robinson, like
a phantom in the night, came and went. That wouldn't even,
it seems to me, rise to the dimension
of a reliable informant. At least, we don't
have any evidence in the record-- the only reason
to think he was reliable. You're suggesting,
nevertheless, that we can detain somebody for
30 days on a finding of substantial
probability with evidence that probably wouldn't
justify a Terry stop, or a search warrant. DEVAL PATRICK: Your
Honor, that's not so. In the first case-- PATRICIA WALD: Why isn't it so? DEVAL PATRICK: I tried. In the first case, the record
is just not broad enough to offer us information-- PATRICIA WALD:
Well, that's where we're being asked to uphold
the man's detention for 30 days on the basis of this record. So I don't think you
can tell us the record does just isn't good enough. DEVAL PATRICK: No, no. That's not where I'm going. The record isn't broad enough
to tell us what offer-- what sort of relationship
or communication Officer [INAUDIBLE] had with
Mr. Robinson after the time he-- PATRICIA WALD: Wasn't that part
of the prosecution's duty-- to put that information
in the record? DEVAL PATRICK: Not according
to the statute, Your Honor. And if the Court's concern
is that the statute is infirm for that reason,
constitutionally, we found no basis for
that conclusion. If the Court's concern is that
substantial probability is not a constitutionally sufficient
standard for detaining people between arrest and trial-- PATRICIA WALD: We can only
look at the way the statute is applied in this case. At least, we can look--
we can't only look there, but we certainly can look. DEVAL PATRICK: But
your inquiry ought to be into whether a reasonable
fact finder could have made these kinds of
conclusions based on the evidence presented. HENRY FRIENDLY: And if we
think it's not, we could-- under whatever formal relief
we're being asked to do-- which is still
somewhat unclear to me. Dispose of this case
and leave other problems under the statute
for another day. DEVAL PATRICK: That
would have to be the result, as interesting
as it might be to get to the merits in this case. Just to leave you
with a thought, the statute is
spawned, once again, by conceded and
substantial interest. That doesn't mean Mr.
McGuire's interest isn't also substantial, but that
his interest is informed by the Fourth Amendment. NATHANIEL JONES: Do
we not have a duty to examine whether
there are methods to address that concern that
are less sweeping and less onerous than the methods
provided for under the statute? DEVAL PATRICK: Mr. Justice
Jones, your concern seems to be with the
level of scrutiny that the State is
required to show, or that the Court is required
to use to review the statute. And again, because
this is couched in the criminal process-- couched in it
because it's grounded in the criminal process. The Court's inquiry is not into
less restrictive alternatives, it's in the first
instance, whether it's a rational
classification, and then after that, whether the process
that the statute affords is fair in terms of narrowing
the class, step by step. As it does through
these three levels. Until the statute fits, a little
like buying a suit off the rack and having had it fitted. And what happens-- I
should point out too, that it's important that
the findings required by the statute are specific. That is, that it isn't a
criminal defendant being brought into a courtroom
before a judge, even with all this process. And then applying-- NATHANIEL JONES:
But isn't there a big to do made about
some of these findings? Number one, that this is
the person who had been convicted so many years past-- who is going to
quarrel with that? And that this is the person
who has been suddenly arrested? So you have those two findings,
which you can see that. It's all a matter of record. DEVAL PATRICK: What's
the Court's concern? NATHANIEL JONES: You're talking
about these findings that must be made by a neutral
trier of the fact. Those preliminary findings
are virtually-- that's just boilerplate stuff, isn't it? What we're really
getting down to is this question of
substantial probability. And yet there's no
criteria provided to guide the triers
of the fact as to what should be considered. Outside of employment, and
this is the sort of thing. DEVAL PATRICK:
Wait a minute, now. There's the criteria
about employment, and the availability
of family locally who could take custody
of the defendant does not go to
substantial probability. That goes to-- NATHANIEL JONES: I
know, I understand. DEVAL PATRICK: And
again, it's not just the classes are reduced
merely by the finding that the defendant
substantially, probably committed this crime. It gets even closer by
favoring release, in a sense, and saying that if
there's any other way to release this defendant,
given the concern that the State-- that
people with these kinds of characteristics
may be dangerous for the short period between
arrest and trial, then a judge is required to release them. NATHANIEL JONES: So a person
has no relatives in the town. That makes him dangerous? If a person may be unemployed,
it makes him dangerous. DEVAL PATRICK: That's not. That's not it, your Honor. Those are the threshold
showings, and that's all. The statute, because it's
flexible in that way, contemplates creative
alternatives. The point is that
if the State is to be able to use
the statute, then it seems the State
ought to be required to make threshold
showing, and then to allow Mr. McGuire to come
up with other alternatives. If Mr. McGuire's
attorney, for example, had said that she was willing
to assume custody, it's over. He goes. The inquiry, in
other words, doesn't end by looking at parole
supervision, whether he has a family member
nearby, or a job. It goes further,
but what's required to take it further is Mr.
McGuire, at least to some extend. And he did nothing in this case. Even when asked by Judge Newman. HENRY FRIENDLY: I
think we have to ask you to desist, Mr. Patrick. DEVAL PATRICK: I'm sorry,
I've gone too long. Thank you. HENRY FRIENDLY: The appellants
have reserved a couple minutes for rebuttal. ANDREW LOEWI: Your
Honor, unless the Court has further questions,
we waive rebuttal. HENRY FRIENDLY: All
right, thank you. We will adjourn a few minutes. [APPLAUSE] CLERK: All rise. HENRY FRIENDLY: Mr.
Loewi asked if we had any further questions,
and we said, no. I think that was not
a very candid answer. We could have very
much enjoyed asking counsel for both sides
questions from now until the early morning. Because the case presents so
many difficult and interesting issues. But I think we probably asked
enough, perhaps too much. As is usual in these
Ames competition arguments, and similar
ones in other law schools, the briefs and argument
were of very high caliber. Unfortunately, they
were much better than the common, or
even the uncommon run of what we get in real life. And accordingly,
the choices we have to make are extremely
difficult. We have decided, although these
decisions were painfully arrived at, that the best
team was the appellee. On the other hand,
we thought that, although this was
a very close call, that the best brief, or in
this case a set of briefs, was the appellants. And that the reply brief
was particularly good. The final item is the award
of the best or orallist, who is also the winner of
the George leisure award. And we've decided to confer
that distinction on Mr. Patrick. [CHEERING] SPEAKER 1: [INAUDIBLE]
will adjourn now. The recession over in
the [INAUDIBLE] room.
