*3 rarily confined the examination so that report report and made. The Hymen Schlesinger, Pittsburgh, Pa., required “all find- to facts and include appellant. for ings necessary court de- to assist the Joseph Walko, S. First Asst. Dist. termining impose it shall sen- Atty., Beaver, Pa., Masters, Robert J. provisions” tence under the of the Act. Atty., County, Dist. Beaver J. Edward receiving report If the court after the Tocci, Atty., County, Asst. Dist. Beaver finds the be in convicted defendant to Pa., Beaver, appellee. for category specified the the and is “of Carter, Marjorie James M. Hanson opinion in- it would be to the best Pa., Matson, Pittsburgh, for Greater person of terests to such Pittsburgh Chapter, American Civil Lib- provisions” Act, “shall under the the Union, erties amici curia. ** arraigned person cause such McLAUGHLIN, Before STALEY and institution and sentenced such State Judges. FREEDMAN, designated by Circuit the have been shall its Department Welfare [Public] Judge. FREEDMAN, Circuit report to court”. the appeal pe- This from the denial of a Act, Unlike Barr-Walker Penn- corpus tition for a writ of habeas raises sylvania Act, Habitual Offenders grave regarding problems constitutional already Barr- was in force when the Pennsylvania’s Act so-called Barr-Walker carefully adopted, de- Act was Walker January 8,1952, P.L.1851,19 Purdon’s and accused lineates Pa.Stat.Annot. 1166-1174. §§ duty of court. Habitual The greatly provides in- for Act Offenders culminating punishment, life creased repeated Act imprisonment, commis- for provides specified crimes, The Act court sion of certain includ- opinion person ing sodomy incest,1 that a has who and and life where imprisonment requires been convicted it of as- before indecent is involved sault, incest, Attorney assault intent com- with com- the District file a formal sodomy, against imposes plaint mit sod- solicitation to commit the defendant. omy, sodomy, duty assault intent to rav- on de- the court inform the rape, large, would, allegations ish com- or “if constitute fendant bodily plaint jury prescribes shall harm to members that a threat and Penal P.L. § Code June Pa.Stat.Annot. Purdon’s
3Q5 empanelled II to determine issue identity.2 fact as to the defendant’s The Facts under After a defendant is sentenced plead present petitioner In the case Act the exclusive con- the Barr-Walker August guilty 29,1962 in ed the Court on him with the trol over rests Oyer County, Beaver Terminer ** Board is Board of Parole. “The Pennsylvania, Commonwealth empowered parole and authorized containing separate indictment counts reparóle, commit and recommit ravish, charging intent assault with parole, any person sentenced violation assault, aggravated assault and indecent act, provisions under of this at such battery.3 battery, At and assault and time conditions guilty through pleaded time he justice may interest of termining dictate.” In de- proceeding, out parole reparole Board represented by of his own choice. counsel *4 required “give is to serious consideration subsequent were original report The circumstances crime re- to the and shocking. pitiable Petitioner and ports psychiatric psychological and the young subterfuge a retarded attracted person sentenced, so examination the woman into his automobile. then He the in recommendations contained drove to a wood and when she re- her committing reports, view of the and the respond to his advances struck fused to court.” the is confined While clothing face, off her her the tore required Parole the Board of within is and her to a bit her tied tree. He breasts three months after his sentence and at and “k” on of them branded the letter one every least six months thereafter to penknife piece of with a broken his or brought reports, have before it all rec- glass. feeling her, re- He then but left concerning ords and information de- later, the pentant, an hour returned about gave fendant to order whether his to determine untied her and her shirt paroled and he should to wear. He buried torn clothes be and make its her ground belongings ruling her notify and drove and to the defendant. say nothing town, warning to back to her Department of Public Welfare is about had what occurred. required provide psychiatric psy- to chological sentencing, services to the At Octo- the time fixed for 10, 1962, county Board of Parole “in the further exam- ber testified detective ination, diagnosis per- petitioner’s and treatment of to described confession provisions victim, sons petitioner, sentenced under the his interviews during act, presented their [the] confinement and and their families. Petitioner parole provided psychiatrist had hereinafter for.” who testified he prescribes following pro- 2. The Act in such com- eral records as set forth complaint jury plaint. after service cedure on If that he is the finds “Thereupon acknowledges person, the defendant: the court or if he or same * * person duly open being court, shall cause the said confesses after * * * brought it, rights, be to before he shall to his is the cautioned as allegations person, inform him of the contained him same court sentence complaint imprisonment *. in such to Such life of his be appeal according shall be sentence by reviewable tried toas the truth thereof Superior Courts, Supreme or law, require and shall such offender alleged only legal also errors but as to say person whether he is same Section 1108 as to the thereof.” charged complaint in such or not. If he (d), Purdon’s Pa.Stat.Annot. says person, he is not or same re- (d). answer, silent, fuses or remains plea or the fact of shall his silence record whether not clear from the is record, jury guilty pleaded entered on and a shall em- counts to all panelled inquire charg- only count the offender indictment person ing is the same mentioned in the sev- to ravish. assault with intent treating weekly petitioner been months, recommend that Carl for two' G. Gerchman
and that
confined in
correctional
institution
suffered
“depressive
and had
at the
Cor-
character”
after classification
Western
Diagnostic
psychosis
been on the brink of
when the
rectional
and Classification
pertinent part
committed,
“pro-
crime
that his
was
That
Center.’
you
pensity
wrong
report.
to do
much less
comment?
than
Do
say?
committed,
anything you
it was”
Is
before the crime was
there
wish to
longer
impulse
because the
was no
secret.
“Mr.
Coun-
Critchfield [Petitioner’s
weekly
He recommended continued
or bi-
anything
No,
:
I don’t wish to add
sel]
weekly
psychiatrist
peti-
visits to a
Your
has con-
that.
I am sure
Honor
tioner’s choice. At the conclusion
everything.
sidered
psychiatrist’s
testimony
“The
We have.” The court
Court:
suggested
peti-
that because
counsel
carefully
then stated that it
exam-
had
judge
tioner’s mental condition the
psychiatric report
pre-
ined the
and the
presentence
should
a.
in-
conduct
further
investigation,
included
sentence
vestigation.
judge
announced that
investigations
fam-
results of
pro-
he would
invoke the
ilies of the
and the defendant.
victim
cedure, and a formal
was accord-
order
sure the
“Mr. Critchfield:
am
ingly filed.
It recited
court
of all
circumstances
aware
had
decided
avail itself of
Barr-
committed,
crime
which this
Act, postponed
imposition
Walker
drinking,
and the
the man had been
until
the court had received
*5
personality
victim,
so forth.
statutory reports,
it ordered
Gerchman,
Now,
“The
Mr.
Court:
made,
petitioner
and ordered
confined
say
you
anything you
do
to
have
wish
meanwhile.
why
not
Court
sentence should
later,
Two
months
on December
any-
imposed
be
this
case? Is there
parties appeared
before the
any-
thing you
say?
want to
Is there
judge
court once more. The
had re-
thing
Gerchman,
you
say,
to
want
Mr.
report
Department
ceived the
of the
of why
imposed, or
should not be
Welfare,
Public
which consisted of a
anything
say
you want to
in connection
signed by
Department’s
letter
Com-
(No response.)
with this
He did
case ?
Health, accompanied
missioner Mental
you
testify,
Critchfield,
not
Mr.
so
had
psychiatric report
a
for the court's
amply
better
him
make it
clear to
use”,
report
“confidential
and a
on the
may
day
this is his
take
Court and he
presentence investigation.
The tran-
testify
the stand and
if he wishes.
script
transpired.
records what
Carl, you
“Mr. Critchfield:
under-
Critchfield,
sup-
"The Court: Mr.
I
day you
stand this is the
are to
sen-
be
pose you
report
do not know what the
you
say
anything
tenced.
regard
If
have
to
actually is which I
from the De-
have
regard
to
crime itself
or in
partment.
pertinent part
The
is this:
your sentence,
your
this is
time to
your
‘Pursuant to
Order of October
say it, and
Court
to know
wants
1962, the Defendant
Aft-
examined.
you
anything
say
at
have
fully considering
er
all the
ma-
available
opportunity
this
now
time. You
respect
case,
to this
De-
[the
terial
say
to take the stand under oath and
anything you
partment] finds that thé above Defendant
say
would like to
about
mentally
could, therefore,
is not
ill and
you
say anything?
that. Do
care to
profit by being
not
to a
committed
mental
“(Remark
aside Defendant to coun-
Department
institution.
The
further
sel.)
finds that the Defendant comes within
has
“Mr.
He
he
Critchfield:
said
purview
Act,
of the
in-
nothing
say,
Your Honor.
asmuch
he
a threat
constitutes
Now,
bodily
I
women
public
Court:
see two
harm to
“The
of the
members
large.
respectfully
in the Court Room.
assume—
if at
We therefore
granted
(W.D.Pa.1964)),
mother
a
That
cer-
“Mr. Critchfield:
probable
appeal
tificate of
un-
and his wife.
of the
cause
Defendant
der 28 U.S.C.
they
anything
Is there
“The Court:
say?
want
Ill
you like to
Critchfield: Would
“Mr.
Applied
Statutory
Standard
say anything, Mrs. Gerchman?
to Petitioner
(Wife): No.
“Mrs. Gerchman
applied
The Act was invoked and
you,
about
“Mr. Critchfield:
How
after his conviction of
Mrs. Gerchman?
solely
ground
specified crime
on the
(Mother):
person who,
large,
No.”
a
he was
if at
“Mrs. Gerchman
would
bodily
constitute
a threat of
harm to
thereupon
Court
announced:
public.
members
There
“
was no
being [T]he
charge
finding
that he was an habitual
large,
Gerchman,
opinion
if at
Carl G.
expressly
offender and it was
stated
bodily
harm
constitutes
threat
Department
of Public Welfare that
public, and the Court
members of the
mentally
was not
ill. Petitioner
as-
being
opinion
be
would
serts,
therefore,
the Act
to sen-
to the best
interests
applied
to him because it must be
pro-
G.
under the
tence Carl
Gerchman
only
construed
deal
with habitual of-
to,
referred
the sen-
visions
the Act
fenders.
The reason for
this claimed
De-
tence of
Court now is that
given
construction is not
to us but
Gerchman,
fendant,
pay
G.
the costs
Carl
urged
result
is that
Act should
$1.00,
prosecution,
a fine of
com-
apply
read to
to one who is convicted of
Diag-
mitted to the Western Correctional
specified
only
if
finds
crime
the court
to un-
nostic and Classification Center
that he
threat
would constitute
dergo imprisonment
one
of not less than
bodily
public,
harm to
members
day
nat-
nor more than
term of the
large,
and is an habitual
offender
Carl
Gerch-
ural
life
the said
G.
mentally
meaning
and is
This
would
ill.
man,
commit-
and the Defendant
is now
require
”
the substitution
of “and”
*6
custody
ted to the
of the Sheriff.
statutory provision
“or” in
the
the
you,
“Mr. Critchfield:
Thank
Your
person
“if
must be a
who
at
Honor.
large,
bodily
a threat
harm
constitutes
of
“(Whereupon,
public,
to
or is an habit-
the Defendant was re-
members of the
custody
mentally
of
ual
ill.”
manded
the
the Sheriff.
offender
Proceedings closed.)”
to undertake to construe
Were we
sought
Act,
petitioner
In 1963
would choose
different
his release
we
construction,
by
corpus proceedings
has more to recom
habeas
petition
would
deemed
state courts. His
denied
it. Mental illness
mend
by
Act,
sentencing
mod
judge,
whom it
the fundamental
test under
before
came;
affirmed,
Superior
the status
Court
in the alternative
ified
bodily
being
harm to
a threat of
Commonwealth ex rel. Gerchman v. Ma
either
roney,
Pa.Super. 293,
public
an habitual
201
A.2d 319 members
(1964),
no need
and an
There would be
allocatur was refused
offender.
readily
Pennsylvania.
“and”,
Supreme
two
read “or” to mean
(See
categories
Pa.Super.
xl).4 Having
recognizable
exist
for
would
ex
remedies,
required
could be invoked:
of which the Act
hausted his State
each
opinion
2254, petitioner
applied
(1)
is of the
U.S.C.
the court
if
large,
corpus
Court,
any
person,
constitutes
for
“if at
habeas
the District
bodily
(United
harm
members
denied
claim.
States
a threat
**
mentally
Maroney,
F.Supp.
public
and [is]
ex rel. Gerchman v.
(1964),
companion
Pa.Super.
al-
See also
Finally, urges concept the embodied in the amicus curiae that ordered lib erty”, (380 1079), equal protection the U.S. at Act S.Ct. the violates at California, E.g., Robinson v. State of U.S. S.Ct. thought proceedings. See that to civil Stewart commitment and Mr. Justice *** States, 350 “[deprive] United Greenwood v. its denial would (1956); liberty due of his without [an accused] Four of Minnesota ex rel. Pearson in violation law 270, 275-277, Court, (Ibid.)6 Probate Amendment”. teenth 84 L.Ed. Com- applicable principles These are pare on Character Willner v. Committee petitioner therefore and 103-104, Fitness, and made a determination were violated concurring opinion, at hearing only at which the evidence at a present case the 107-108 But against re the him was Commissioner’s categories be- falls neither of these containing ultimate port court the proceedings are cause the Barr-Walker reports findings upon of fact based nature rather civil in criminal than psychiatric examination “confidential” essentially independent constitute investigation. probation Neither and a sentencing proceeding. rather than a reported nor who the those Commissioner hearing. doubt, appeared Act Peti leaves no both to him at the language opportunity purpose, in its its no to confront that had tioner them, it is a them and that to cross-examine criminal statute what much less findings imposed authority regarding is is crim Commis its punishment. reports of the inal Its title and its text unsworn sioner or the replete language investigations they with on were based. are which reveals pe1i proceeding penal Indeed, is shows nature. as far as record may only precedent reached It be invoked after tioner of the conclusion learned guilt specified only conviction of one of the because from this so-called evidence prescribes a new and it aloud crimes radi court volunteered read finding cally hearing. judicial punishment. A based different maximum imprisonment incompetent hearsay of life made cannot this mandatory recognized doing and from it without violence may only guarantee process. on the determina be released constitutional of due tion Board Parole argued, however, It is that while justice” “interest of so dictates. and cross- to confrontation provides pe It is true Act clearly applicable examination psychiatric psychological ex riodic against trials, proceeding criminal Board of Parole is aminations not a and was trial not. criminal no less a review. But it is said, Rather, criminal in nature. proceeding and no infliction of less the it was a civil commitment for punishment criminal because Act simple benefit, alternatively, sen- provides studies, especially for such when resulting tencing proceeding the- accompanied by po this is drastic charge on the assault conviction they imprisonment tential of life do ravish. intent affirmatively provide not a basis for re undoubtedly punishment This true lease. does' guarantee of confron not lose its because characteristic goes beyond simple does Act retribution. “It tation and cross-examination *8 apply sentencing a pursuant would archaic to limit the definition People ‘punishment’ of Bill At v. of [under criminal conviction. Williams 241, York, to ‘retribution.’ Punish Clause] of 69 tainder of New 337 U.S. purposes; 1079, (1949). The ment serves several retribu 93 L.Ed. S.Ct. 1337 pre yet tive, rehabilitative, fully as deterrent —and rule not been clarified has 1175, (1963); 474, McElroy, L.Ed.2d 224 6. S.Ct. 10 also Greene v. 360 U.S. 83 See (3d 1940), Wigmore, 496-497, 1400, § 5 Evidence ed. 79 S.Ct. (1959); on Char- 1367. Willner v. Committee 103-104, 96, Fitness, 373 acter & U.S. 310 society (1866); City reasons Thompson
ventive. One of the
prisons
im
356
v.
of Louis
ville,
199,
624,
of
those convicted
crimes is to
361
80
U.S.
S.Ct.
4 L.Ed.
inflicting
harm,
keep
(1960);
Plymouth
them from
future
2d 654
One 1958
Se
imprisonment
Pennsylvania,
make
dan
does not
v. Com. of
380 U.S.
693,
punishment.”
1246,
(1965).
the less
United States
85 S.Ct.
14 L.Ed.2d170
Brown,
437, 458,
v.
85
381 U.S.
S.Ct
penal
nature,
Since the
in
Act is
1707,
(1965).
1720,
484
14 L.Ed.2d
See
dealing
constitutionality
cases
with the
Kennedy Mendoza-Martinez,
also
372
v.
procedures
of
for the commitment of in-
144,
554,
168-169,
L.Ed.,
U.S.
83 S.Ct.
9
persons
theory
parens pat-
sane
on
a
Comment,
(1963);
2d 644
32
Case
U.
7
psychopaths
riae or sexual
without re-
(1965).
290,
Chic.L.Rev.
294-298
quiring
previous
conviction,8
a
criminal
enlightened
effort
they
permit
even if
would
confinement
penology
condition of
to alleviate the
without
confrontation
cross-exam-
by providing
a convicted defendant
some ination,
analogous.9
are not
The basis
advanced,
modern methods
elements
proceeded
on which the state trial court
possible
of cure and rehabilitation and
was within
contours
a criminal
parole
ultimate
cannot
release on
be turn
proceeding.
deprive
ed about
as
so
procedures
process
the due
satisfy
can
Nor
the failure to
guarantees
proceed
requirements
clause
jus
due
ing.
Indeed,
general
principle
we do
understand
tified
Pennsylvania
Superior
judge
has the widest discretion in sen
tencing
purpose may
Commonwealth
Gerchman v. Ma
ex rel.
and for this
receive
roney,
Pa.Super.,
298-299, 301,
203
201 unsworn and
unauthenticated in
even
319,
penal
formation,
A.2d
Act
held that the
was not
unrestricted
the rules
in nature. But if it had so held we would
People
evidence.
Williams
of State of
compelled
York,
241,
feel
fulfilling
1079,
to refuse
follow it
New
69
337 U.S.
S.Ct.
responsibility
independent
our
(1949).10
311
involved,
provided
in
for
there
which
pendent
we are re
which
examination
punishment
of
Fretag,
(see
creased criminal
because
v.
Chandler
quired to make
prior convictions,
essentially in
3,
1,
created
7,
99
4
348
U.S.
dependent
Plymouth
offenses. This re
criminal
Sedan v.
1958
One
quired
693,
of
is
Pennsylvania,
determination
the
85
the
U.S.
of
380
Com.
statutory
(1965)),
of
the
1246,
fact
involved in
it
sues
S.Ct.
proceedings
pro
beyond
penal
must conform to the consti
doubt
the
is clear
tutionally guaranteed safeguards
due
ceeding
of
essen
the Act is
authorized
process
trials.
tially independent
in substantive
criminal
of
conviction which
the
though
Oyler,
In
the Court said: “Even
prerequisite
ele
but subordinate
is a
charge
not
an
does
habitual
ment.
separate offense,
determina
state a
the
punishment
the court
im
crim
tion of
is an habitual
whether one
posed
upon
followed
the
invoca
court’s
‘essentially independent’
is
inal
statutory proceed
tion of an additional
guilt
underlying
determination of
ing, and
de
it followed from the court’s
Fre
substantive offense. Chandler v.
termination that
“if
at
tag,
3,
1, 99 L.Ed.
348
8 [75
U.S.
S.Ct.
large,
bodily
harm
constitutes
threat of
* * *
4]
[A]
public”
opinion
to members of the
and its
and
must
receive
notice
reasonable
“that
it would
to the
interests
best
opportunity
heard relative to
person” pur
sentence
charge
process
even if due
does
recidivist
suant
Act. The court thus made
given prior
require
notice
finding
a new factual
which went sub
offense.”
trial on the substantive
stantially beyond
finding
guilt
(368 U.S.,
If
452,
82 S.Ct. at
battery
assault and
with intent to ravish.
independent is
determination
finding
This new
alone
authorized
judicial
Oyler,
it was to
limited as
sue
required
indeterminate
sentence
identity,
new
made
records
imprisonment for a minimum
of one
term
charge separate from the subordinate
life,
day and a maximum term
instead
proc
required
thus
full due
offense and
imprisonment
maximum term of
surely
here,
ess,
required
where
years
prescribed
for
five
e.,
peti
issue,
i.
critical new
with
ravish.11 This is
assault
intent
large,
tioner,
if at
would constitute
enlarged punishment for an
much
essen
bodily
public, is
danger
harm to the
tially independent criminal offense. See
going
complex
personal
far
one
Comment,
739,
13
741-742
U.Pitts.L.Rev.
.
beyond
records and identification.
mere
(1952)
Kennedy
Similarly,
Mendoza-Mar
v.
e.,
factors,
imposition
The same
i.
554, L.
tinez,
144,
9
greater punishment
provided
than that
(1963),
644
Court held
Ed.2d
for conviction of a constituent element
applica
denied
due
finding
fact,
after an additional
led
draft
to one convicted of
evasion
tion
Supreme
hold in
Court to
Chandler
Nationality
provision
Act of
Fretag,
3,
1,
348
75
S.Ct.
99 L.
automatic denationalization
1940 for the
(1954)
Oyler
Boles,
4Ed.
368 U.
remaining
departing
out
501,
of one
S.
7 L.Ed.2d
military
(1962), that
habitual
acts
side the United States
evade
offenders
Code,
§
The Penal Code of
June
18 Purdon’s Pa.Stat.Annot.
mutually
P.L.
exclusive with
§
18 Purdon’s Pa.Stat
is therefore
guilty
Annot.
assault
§ 4722.
If
a conviction and
charges
plea applied
long-
charges,
here
all
The other
four
intent
to ravish.
charge
imprisonment
merged
of assault
est
term
still would he
with the
were
years.
punish-
Commonwealth
five
to ravish. See
Indecent
assault
with intent
Soudani,
battery
A.2d
able as an
re-
398 Pa.
assault
cert,
quires
rape
denied,
(see
(1960),
S.
absence of an
intent
Shrodes,
Commonwealth v.
Pa.
5 L.Ed.2d
Ct.
(1946)),
A.2d
of the Penal
*10
pointed
imposed.
service.12
out
fied sentence
At
a
was
hearing.the
penal proceeding
process
a
requirements
denationalization was
of due
departure
niggard-
and
of
partial
that the
element
cannot be satisfied
ly procedural
or
remaining
or
protections.
outside
United States
A defendant
proceeding
was not included in the
of
conviction
in such a
to the
entitled
panoply
draft evasion. The denationalization
protections
full
of the relevant
proceeding
guarantees
was therefore held
which due
sufficient
state
ly independent
proceedings.
con
draft evasion
criminal
He must be af-
require
safeguards
viction
a
“criminal trial
forded all those
which are
incidents, including indictment,
rights
all its
no
fundamental
and essential
to a
tice, confrontation, jury trial,
trial,
including
assistance
fair
to con-
counsel,
compulsory process
for
front
cross-examine
witnesses
obtaining
(372
167, against
U.S.,
Texas,
witnesses”.
him. Pointer
v. State
Douglas
supra;
Alabama,
83 S.Ct. at
Like Mendoza-Mar
v. State of
su-
tinez,
given
pra.
Gerchman
never
a full
trial, including
right to confrontation
infringement
pe
3. The
and cross-examination on the evidence
titioner’s
cannot
be deemed have
underlying
finding
the new
which was
been waived
the failure of his coun
essential
Barr-Walker sentence.
complain,
sel to
in the circumstances
necessary
The evidence
to establish an which faced him at the time. There is
essentially
was,
independent element
no indication here that counsel deliber
moreover, received
not to
here
aid in
raising
ately
question
withheld
aas
any discretionary determination, but
strategy
matter
or
trial
simi
finding
rather
to arrive
fact
at a
Compare Henry
lar reason.
v. State of
mandatory punishment
after which a
fol Mississippi,
379 U.S.
85 S.Ct.
lowed in which the court had no discre
(1965).
Waiver
entirely
tion. This is
a sentenc
unlike
classically requires “an
re
intentional
ing procedure, where the constitutional
linquishment or
a
abandonment of known
safeguards
inapplicable.
are
There
privilege”.
Zerbst,
Johnson v.
judge
a
fix
exercises broad discretion in
458, 464,
1019, 1023,
ing punishment
wide
within
boundaries
(1938).
court,
L.Ed. 1461
Here the trial
per
after consideration of individual and
Attorney
Depart
District
and the
sonal
with
factors made available to him
peti
ment
Public
as
as
Welfare well
regard to
out
the restrictions of
rules
accepted
followed an
counsel
tioner’s
practice. They
of evidence.13
pro
therefore viewed
proceeding
ceeding
hearing
Barr-
under the
a
on sentence
report
Act is
Walker
thus neither a
com
civil
transmitted
the Commissioner
nor
mitment
ing
a
within
mean
of Mental
fur
Health
information
separate
sentencing
judge
Williams. It
nished
use in
proceeding
discretionary
after
power
be invoked
the exercise of his
specified
appropriate
conviction
one of the
crimes.
sentence.
to decide
submitting
apparently
Petitioner
therefore was entitled
In
this
well
magni-
judicial hearing
peti-
full
pattern
procedure
before the
established
401(j).
possible
12. §
added in
con-
Stat.
of the fullest
information
349(a)
(10)
Immigration
cerning
later
charac-
§
the defendant’s life and
Nationality
concepts
Act of
66 Stat.
indi-
teristics.
And modern
267-268,
1481(a)
vidualizing punishment
Ü.S.C.
it all
have made
sentencing
necessary
more
that a
sentencing judge
13. “A
is not
confined
judge
opportunity to
not be
denied
guilt.
the narrow issue of
His
task
pertinent
by a re-
obtain
quirement
information
statutory
within fixed
or constitutional
rigid
restric-
adherence to
type
limits
tois
determine the
and extent
properly applicable
punishment
tive rules
evidence
guilt
after
the issue of
People
Highly
of State
to the trial.” Williams v.
has been determined.
relevant
York,
—if
New
not essential —to his selection of an
of
1079, 1083,
appropriate
possession
VI
ing
period
issuance of the
for a
writ
days,
within which time
Common-
Is
Act
Substantive
Claims That
Constitutionally
may apply
wealth
for
Invalid
proceed
Its Face
review this decision
de novo
against petitioner under the Barr-Walker
remain for
a num-
There
consideration
Act.
important
substantive
constitu-
ber
challenges
validity
tional
Judge (concurring).
STALEY, Circuit
course,
Barr-Walker Act on its face. Of
clearly appeared
if it
on the record be-
I concur in the result reached
my
us that
Act
fore
of these
Brother Freedman that
3059, 3060;
(1909), pp.
9;
IX,
Constitution
Consti-
§§
tution
Art.
IX;
Rights
IX,
Declaration of
Consti-
tution of
Art.
§§
agree
process.
was denied due
that he
America,
UNITED STATES of
confront
was denied the
Petitioner-Plaintiff,
Pointer v.
accusers.
cross-examine his
Texas,
State
IMPROVED PREMISES LOCATED AT
Douglas
(1965);
1065,
ciding Four- issue of whether ney Corp., for the defendants 396 Jacob requires a trial teenth Amendment Freidus and the Estate of Samuel E. proceedings. The jury in state criminal Aaron, Petitioner-Appellant, explicitly Supreme has ruled to determine and enforce the lien of said Fay People attorney right. services rendered has no actions, defendants aforesaid in said York, 332 U.S. of New Freidus, Jacob the Executors of the Will 91 L.Ed. *14 Aaron, Benjamin of Samuel E. Kauf Massachusetts, Snyder v. Com. Jacobs, Respond man Nathan P. L.Ed. 674 ents-Appellees. Massachu- (1934); Com. of Jordan v. Nos. Docket 30194. setts, 225 U.S. Appeals United States Court of Dow, Maxwell L.Ed. 1038 Second Circuit. 494, 44 581, 602-603, 20 S.Ct. Argued Jan. Tune, (1900); Application Decided Jan. (C.A.3, 230 F.2d Judge McLAUGHLIN, (con- Circuit curring).
Appellant was denied due
that he was denied to confront Solely his cross-examine accusers.
because of this violation of his constitu-
tional invalid. commitment agree
I therefore the order of the
district court a rea- be vacated
sonable time be allowed the Common-
wealth of further take steps proceed
appellate in this cause or to appellant
with a trial of on the new disagree specifically
merits.
proposition question in there appellant
this was entitled case Judge jury Staley has
to a trial. As
shown, right. he had no such