Pollard v. United States

Mr. Chief Justice Warren, with whom Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Brennan join,

dissenting.

Our duty to supervise the administration of justice in the federal courts calls for a reversal here because of disregard shown for the procedural rights of petitioner— rights with which the law surrounds every person charged with crime.

*364Our law, based upon centuries of tragic human experience, requires that before a man can be sent to a penitentiary, he is entitled to a speedy trial, to be present in court at every step of the proceedings, at all times to be represented by counsel, or to speak in his own behalf, and to be informed in open court of every action taken against him until he is lawfully sentenced. These are not mere ceremonials to be neglected at will in the interests of a crowded calendar or other expediencies. They are basic rights. They bulk large in the totality of procedural rights guaranteed to a person accused of crime. Here, in the case of an impecunious defendant, who was summarily rushed through the court mill without benefit of counsel, all of them, in some degree, were denied him.

The petitioner was not a dangerous criminal. His trouble, as the court recognized, was intemperance. During the course of a long drinking spree, he became involved with both the state and federal authorities. As soon as he became sober enough to realize the consequences of his actions, he made a full disclosure to one of the officers of Alcoholics Anonymous and to the Federal Bureau of Investigation.

He was sentenced to a state penitentiary. He was also charged by the Federal Government with unlawfully opening a letter and extracting a check which he cashed. The case was not pressed until petitioner was about to be discharged from the state penitentiary.1 Without counsel, he pleaded guilty. He was then. *365brought into court to receive sentence. The colloquy between him and the court concluded as follows:

“The Court: You ought to know the misery and' the grief and the sorrow and the horror of what continued drinking on your part will bring to you.
“If I might suggest to you, and I am giving you gratuitous advice but it is the result of observation and experience — it is my view that when you get out you should immediately join the Alcoholics Anonymous organization — not wait a week or two weeks or three weeks — but have that your first mission after you contact your family, and do what they tell you to do and do it immediately and do it diligently and faithfully, carry out every obligation that they impose upon you. With your background and with your ability I think that you can win this fight.
“If you don’t do those things, and if you want to revert to drinking, you will be back here again because you will commit some federal offense, and I won’t be talking to you this way if you are ever before me again.
“So, good luck to you and I hope the parole board will give you an opportunity.
“That is all.
“The Defendant: Thank you very much, sir.”

Petitioner’s wife, a close personal friend and the two state custodial officers who were present at the hearing concluded, as would anyone, that the kindly and understanding language of the judge ended the matter and that additional punishment was not to be imposed. Petitioner was returned to the state penitentiary. Later in the day, after an inquiry by the prosecuting attorney as to the disposition of the case, the judge casually said, *366“Three years [probation].” 2 Petitioner was absent when this occurred.3 Notice of this action was not even communicated to him. A month or so later, as he was being released from the state prison, the officials advised him that he must report to the federal probation officer. Naturally, he complied. But he immediately tried to discover, through the probation officer, how and why he was subject to probation. The officer succeeded in convincing him that the “sentence” was legal. Again, a year later, petitioner requested his probation officer to investigate. The officer discovered the truth of petitioner’s assertions. Though he recognized the irregularity of the proceedings, he suggested to petitioner that it would not be wise to pursue the matter — that further complications might develop.

In September 1954, nearly two years after his first appearance before the court for sentencing, petitioner lapsed in the fight against excessive drinking. Reported as a probation violator, he was again brought into federal court. His case was disposed of in the most summary style. The Assistant United States Attorney first obtained the defendant’s statement waiving right to counsel. He was not advised by the court, as required by law, *367of his right to counsel and to the appointment of counsel if desired. Fed. Rules Crim. Proc., 44. The judge, but not petitioner, had apparently been apprised beforehand of the illegality of the October 3, 1952, sentence.

“The Court: What I am going to do in your case, because of the record, is to sentence you in the first instance: It’s the judgment of the Court that you be confined in an institution to be selected by the Attorney General of the United States for a period of two years. That’s all.
“Mr. Evarts [Prosecuting Attorney]: Now, Your Honor, as you recall, the record shows that he was, sentence was imposed on October 3,1952, and I would suggest to the Court that an Order be made setting aside the judgment and. commitment that was entered at that time so that the record will now truly reflect the status of the events.
“The Court: All right.”

In this Court the Government concedes the total invalidity of the “sentence” of October 3, 1952, and contends that these events of September 21, 1954, are to be treated as the first and only sentence imposed on the defendant for the crime of which he had pleaded guilty in 1952. But it too has infirmities. It cannot be said that this long delayed sentencing hearing comports with the requirements of the Federal Rules of Criminal Procedure. As already stated, petitioner was not represented by counsel. There was no attempt to comply with Rule 37 (a)(2), which provides that: “When a court after trial imposes sentence upon a defendant not represented by counsel, the defendant shall be advised of his right to appeal . . . .” Furthermore, Rule 32 (a) contains a mandatory requirement: “Before imposing sentence the court shall afford the defendant an opportunity to make *368a statement in his own behalf and to present any information in mitigation of punishment.” No opportunity was afforded the defendant to say a word in mitigation or extenuation of his offense.4

Petitioner also questions the power of the trial court to sentence him so long after arraignment. The Sixth Amendment guarantees to persons accused of crimes in a federal court that they shall receive a “speedy and public trial.” It has never been held that the sentence is not part of the “trial.” But it is not necessary to decide this issue on constitutional grounds. The principle has been implemented by the Federal Rules of Criminal Procedure.

Rule 32 (a) declares unequivocally that: “Sentence shall be imposed without unreasonable delay.” The majority holds that this two-year delay is not unreasonable because it was “accidental” and was “promptly remedied when discovered.” There is nothing in the record to warrant either of these conclusions. Both the court and the prosecuting attorney were put on notice of the fatal defect of the abortive sentence on the day it was imposed. No steps were taken to remedy the defect. Petitioner declared that he twice initiated investigation of the legality of his sentence. The probation officer obviously checked with someone long before petitioner was brought to court for what is now called his “first” sentence. We cannot simply assume that the facts did hot come to the attention of any responsible person.

This proceeding was initiated as a motion to vacate sentence under 28 U. S. C. § 2255. The district judge refused to accord petitioner a.hearing and, considering only the motion and the files and records in the court, *369denied relief. Then, in spite of the infirmities in the case revealed by these documents, leave to appeal in forma pauperis was denied. The Court of Appeals for the Eighth Circuit affirmed this action, but we granted certiorari and appointed counsel to represent petitioner.

The conclusion that the condonation of this succession of procedural shortcomings represents a restriction of petitioner’s rights is inescapable. This Court has often said that such departures from accepted standards should not be permitted — that to do so encourages looseness in many ways. Petitioner has served the two years of imprisonment while pursuing his remedy to this Court. We cannot “unring” the bell that so casually sent him to prison, but we can and should make the record show that he was not committed to a federal prison in accordance with the accepted standard of criminal procedure.

The alleged offense occurred on or about May 21, 1951. A complaint was signed the following July. Nothing further ensued in the case until September 8, 1952. On that date the United States Attorney filed an information and petitioner entered his plea of guilty.

“The Court: Is there anything else, Mr. Hachey [Prosecuting Attorney] ?

“Mr. Hachey: Going back to the matter of Thomas E. Pollard who appeared this morning — I didn’t quite understand that clearly— is there to be a probationary period after his release from Stillwater, or any type of sentencing?

“The Court: It is to commence at the expiration of sentencing at Stillwater.

“Mr. Hachey: Probation to commence after expiration of his sentencing at Stillwater — for how long?

“The Court: Three years.”

The Government concedes that the probation sentence was completely invalid because it was imposed in petitioner’s absence. Fed. Rules Crim. Proc., 43.

The stereotyped recitals in the commitment papers, referred to by the majority, are wholly inconsistent with the verbatim transcript of the proceedings, which is clearly a complete record of all that actually occurred while petitioner was before the court.