Jonathan Edward Boyer v. Louisiana
Oral argument transcript · No. 11-9953 · October Term 2012 · argued January 14, 2013 · the respondent won
Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- Richard Bourke, New Orleans, Louisiana, for the petitioner
- Carla S. Sigler, Lake Charles, Louisiana, for the respondent
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We will hear argument next this morning in Case 11-9953, Boyer v. Louisiana. Mr. Bourke? ORAL ARGUMENT OF RICHARD BOURKE ON BEHALF OF THE PETITIONER
Richard Bourke: Mr. Chief Justice, and may it please the Court: The Louisiana Court of Appeal in this case correctly found that the majority of the delay -- the seven-year delay was caused by the lack of funding, but, when moving to assess that cause under Barker, incorrectly determined that it was a cause beyond the control of the State and, adopting its earlier ruling under the State statute, found that it was a cause beyond the control of the State, in the sense that it was beyond the control of the local district attorney's office.
Justice Scalia: Mr. Bourke, was -- was it within the control of your client?
Richard Bourke: He was unable to fund himself, Your Honor. That is why he asked for the appointment of counsel. Alderson Reporting Company Official
Justice Scalia: Was he unable to get his Sixth Amendment right to a speedy trial?
Richard Bourke: Yes.
Justice Scalia: Why?
Richard Bourke: That is -- he was unable to move forward to trial because he was not provided with counsel adequately funded to advance the --
Justice Scalia: He had -- he had one counsel, right? During the whole time?
Richard Bourke: In fact, in a sense, Your Honor, he had two counsel.
Justice Scalia: Yes. For part of it, he had two, and then there was not enough funding for the second, okay? So he was faced with a choice. Louisiana, as I understand it, has adopted a provision, which the Sixth Amendment does not require. The Sixth Amendment just requires counsel, but Louisiana says, in capital cases, we are going to provide two counsel, and you can't go to trial until you have two counsel, okay?
Richard Bourke: No, Your Honor --
Justice Scalia: No?
Richard Bourke: -- that is not correct. That is not the State of Louisiana law.
Justice Scalia: What is the State of Alderson Reporting Company Official Louisiana law?
Richard Bourke: Louisiana absolutely does not provide a right to two counsel in capital cases. The Louisiana Supreme Court, in Rule 31, provided that the court should appoint two counsel, but, also, it provided expressly that that created no procedural or substantive right. Similarly, there is no right --
Justice Scalia: Well, I don't -- I don't understand that. That's not Louisiana law that you -- that you can't proceed without two counsel? That's not the law in Louisiana? I thought that's --
Richard Bourke: That is not the law in Louisiana.
Justice Scalia: I -- you don't consider supreme court rules to be law?
Richard Bourke: It is a supreme court rule which directs the trial judge to appoint two counsel. However, it makes it clear --
Justice Scalia: Is it the fact that, in Louisiana, you cannot proceed to trial in a capital case, unless there are two counsel?
Richard Bourke: No, Your Honor. That is not the --
Justice Scalia: Then -- then you don't have Alderson Reporting Company Official a case. You should have proceeded to trial.
Richard Bourke: No, Your Honor. In -- in this case, as the court of appeal correctly found, Mr. Boyer did not have adequate funding for the case to go to trial. The court of appeal did not predicate that on the need for two counsel. The motion to determine source of funds was not predicated on Rule 31.
Justice Ginsburg: The one -- the one counsel who was qualified, what was his name?
Richard Bourke: Mr. Lorenzi was lead certified counsel.
Justice Ginsburg: Lorenzi, yes. He was only one at the time who was qualified to be lead counsel?
Richard Bourke: Correct.
Justice Ginsburg: And the Louisiana Supreme Court said, you don't have to do this. You're his -- you're his attorney, but you have a right to be paid, and the State has to pay you. So there was no obligation on the counsel's part to do anything; and he kept asking, please have a funding order, let me be paid, and I'll do my job.
Richard Bourke: Yes, Mr. Lorenzi declined to pay for Mr. Boyer's defense out of his own pocket.
Justice Scalia: Wasn't there, at all times, Alderson Reporting Company Official one counsel who was being paid by the State?
Richard Bourke: There was --
Justice Scalia: At all times?
Richard Bourke: There was, at all times, one counsel appointed as associate counsel, that is for the purpose of assisting Mr. Lorenzi as lead counsel.
Justice Scalia: Was that counsel qualified enough under our constitutional Sixth Amendment jurisprudence?
Richard Bourke: Well, I don't understand the -- the Sixth Amendment jurisprudence to place --
Justice Scalia: Well --
Richard Bourke: -- a qualification minimum, so I'm not sure I'm understanding your question.
Justice Scalia: Well, the question is would only lead counsel under -- under the supreme court's rule qualify as competent counsel, for purposes of complying with the constitutional requirement? Or would this certified second chair qualify?
Richard Bourke: The -- there is no -- I'm having trouble answering the question, Justice Scalia, because the two things don't talk to each other. The Sixth Amendment doesn't impose a certification requirement.
Justice Scalia: Exactly. I'm just saying Alderson Reporting Company Official can you establish that the one counsel that your client had throughout this whole -- whole proceeding would not satisfy the constitutional requirement? Can you -- is there any basis for your saying that?
Richard Bourke: Yes, Your Honor.
Justice Scalia: What?
Richard Bourke: The court of appeal twice found -- knowing that associate counsel had been appointed, the court of appeal twice found that the case could not proceed due to a lack of adequate funding, and the State --
Justice Scalia: Not because of a Federal constitutional reason. The court found, you are not complying with the supreme court rule. You can't proceed without complying with the supreme court rule. It seems to me your client was faced with a choice: You could either demand what Louisiana, in its generosity, has given to capital defendants, namely, the right to two counsel -- whether it's by statute or by supreme court rule, it doesn't matter -- you could either demand that right; or you could demand your right to a speedy trial. That was your choice. And it seems to me what counsel chose was to insist, all along, I want my right to two -- to two Alderson Reporting Company Official counsel. You didn't have to --
Justice Kagan: Mr. Bourke, did anyone --
Justice Scalia: -- you didn't have to take that right. You could have gone to the -- to the supreme court and said -- you know, since it's taking so long, I demand my constitutional right to a speedy trial. But you didn't do that.
Richard Bourke: Your Honor, if Mr. Boyer had been brought into court and had been told, we've got associate counsel here; they are qualified in the sense that they are barred in Louisiana, and they can take your case to trial and move it forward now. But, if you wait, we might have funding for another lawyer here, who will join him, is more senior and experienced and will double your firepower. You can choose, Mr. Boyer, do you want to go ahead now with this guy? Or do you want to wait? In that circumstance, there would not be an invidious choice between the right to counsel and the right to speedy trial. It would be, we are giving you constitutionally adequate counsel, and you can wait for better, if you wish to. But that is not what occurred here. And, Justice Scalia, the --
Justice Kennedy: Can you -- can you tell me Alderson Reporting Company Official why that is not what occurred here?
Richard Bourke: Because the funding problem did not exist solely around Mr. Lorenzi's overhead and expenditure. There was no money for investigation. There was no money for experts. And the associate counsel who had been appointed had been appointed solely and for the limited purpose as an assistant to Mr. Lorenzi, not to conduct the case in his own right. If this issue had been raised in the trial court, this would have been clearly explained into this record. It wasn't. But the trial court and the appellate court of -- the court of appeal -- Third Circuit in Louisiana knew and understood that there was no investigative funding. There was no expert funding. There had been an assistant. This isn't the case where there was a lawyer appointed and they were waiting for the second lawyer. It's a case where they'd found an assistant and were waiting for the first lawyer.
Chief Justice Roberts: How much money would be needed for investigation and experts before you would acknowledge that that would be competent representation?
Richard Bourke: That's a very case-specific determination, Your Honor and, in Louisiana, at that time, rested with a judicial determination that the Alderson Reporting Company Official investigative or expert expenses were reasonably necessary to ensure a fair trial within the meaning of the Due Process Clause. So it -- it was a funding level tagged to the constitutional minimum of due process.
Justice Scalia: Of course, a finding by the district court -- or whichever court found it, that there was not enough money to pay counsel, to investigate, and to -- to do whatever else -- buy stamps -- is not a finding by the district court that there was not enough money to investigate and to buy stamps. Counsel was a part of that mix. You never had a finding that there was not enough money to pay counsel, right? Or -- I'm sorry -- that there was not enough money to allow the counsel that has been appointed to investigate and buy stamps. Was there ever any such finding?
Richard Bourke: There was never --
Justice Scalia: The -- the big tag item was -- was paying counsel; wasn't it?
Richard Bourke: No, Your Honor. That was one of the big tag items. But, in a capital case, the investigation of both the guilt phase and the full mitigation and life investigation, along with the use of Alderson Reporting Company Official potential expert witnesses, particularly in the case where there were all the indications of mental health problems and the like, are often equal to or, in some cases, greater than the cost of counsel. And so, no, the big -- the big tag item wasn't just Mr. Lorenzi's overhead and expenses. The big tag item was providing adequate funding. And to return to your earlier point, Justice Scalia, just to -- to make it clear, the Louisiana Supreme Court cases, which mandate that a case cannot go forward without counsel, do not reference Rule 31 at all, or two counsel. They are cases which stand for the proposition that the case cannot go forward without constitutionally adequate counsel, counsel who can provide reasonably effective assistance. This case began in 2002. At that point, the controlling Louisiana decision on not moving forward without effective assistance was Peart -- P-e-a-r-t -- which we cite in our brief, which said that the court will not allow a case to proceed without reasonably effective counsel. During the life of this case -- sorry.
Justice Breyer: Your -- your point of view in this case -- Alderson Reporting Company Official
Richard Bourke: Yes, sir.
Justice Breyer: In your point of view, would it satisfy you if we say, the Louisiana court of appeal found the largest part of the delay involved the funding crisis experienced by the State of Louisiana -- that meant giving you adequate money for counsel. Then they said, the progression of the prosecution was out of the State's control, as determined by this court, which I think referred to that funding crisis. And we could -- and your view would be that's what they said. We don't know the underlying facts, but that's what they said. And, insofar as they said that the State wasn't responsible for that part of the delay that they are talking about, they're wrong because the State is responsible for not providing enough money, even if it's a problem and to say they weren't responsible is wrong, okay? That's what you want us to say?
Richard Bourke: Yes, Your Honor.
Justice Breyer: Period. And send it back.
Richard Bourke: Well, Your Honor --
Justice Ginsburg: You would like us to say what Judge Cook said in -- in her opinion, that responsibility for funding rests with the State, not with the defendant. Alderson Reporting Company Official Once an attorney is appointed, it is the State's obligation to ensure that adequate funds are available for the defense. And I take "for the defense" to mean not simply counsel, but the witnesses, the -- the investigation. It is certainly true that none of the delay due to the lack of funds was, in any way, attributable to the defense. That's, essentially, what you would like us to say?
Richard Bourke: That is what Judge Cook said and --
Justice Scalia: I don't think it's enough that none of the delay was attributable to the defense. The defense has to complain, has to demand its right to a prompt trial. What did your client do? Frankly, I -- I am skeptical that a capital defendant who has already confessed to the crime wants to be tried as soon as possible. I'm skeptical about that. Now, what -- what did your client do to demand his right to a prompt trial?
Richard Bourke: Your Honor, what Mr. Boyer did was act, at all times, in full compliance with the procedural mechanisms set up in Louisiana for doing that. Alderson Reporting Company Official At arraignment -- he -- he had already identified he was indigent and asked for counsel. At arraignment, he requested a jury trial.
Justice Scalia: Right.
Richard Bourke: His lawyer was appointed, and his lawyer immediately identified the funding problem and said, we need money, or we can't go forward. Louisiana statute bars counsel from filing a motion for speedy trial without an affidavit saying, you're ready to go forward. Louisiana has said, in Article 7 --
Justice Scalia: Well, that's -- surely, that's unconstitutional. Did counsel say, I demand a speedy trial? You can't condition my right to a speedy trial upon my getting some affidavit or something.
Richard Bourke: It's a procedural rule, Your Honor.
Justice Scalia: I'm still waiting for -- for anybody telling the court, I demand a speedy trial, and, if I don't get a speedy trial, you are violating the Constitution, and I ought to go scot-free.
Richard Bourke: Well, Your Honor, the rule I am referring to is a procedural rule. It does not, in any way, limit the relief from a speedy trial, but you can't move for a speedy trial. You can move to quash because you have been denied one, but you can't move for one. Alderson Reporting Company Official It's exactly what this Court referred to in --
Justice Alito: Isn't it true that you waited three years before doing that?
Richard Bourke: That was the first point at which, under Louisiana procedure, he had a remedy available, exactly as Judge Cook stated in her abstaining opinion. That was when he could move to quash. He could not move for a speedy trial in a valid motion for speedy trial, without having an affidavit saying, we are ready to go. Louisiana has passed that rule to stop pro forma requests for speedy trial.
Justice Ginsburg: Can we clarify one point? Justice Scalia said something about a defendant facing the death penalty going "scot-free." There was an armed robbery charge that was added in 2007. Do you dispute that a new clock started in 2007, the first time that the robbery charge was -- was made?
Richard Bourke: We do, Your Honor. That armed robbery charge is a lesser included offense of the first-degree murder count. Mr. Boyer was originally indicted on first-degree murder, which, in Louisiana, is intentional killing during the course of an armed Alderson Reporting Company Official robbery -- there are other varieties, of course -- but intentional killing during an armed robbery. And those are the elements of first-degree murder. The State unpacked those two elements -- or two lesser included offenses, to second-degree murder, which is intentional killing, and armed robbery. And the State, in fact, conceded that, had the charge remained a first-degree murder charge, then the armed robbery charge would have created a double jeopardy problem. And that's at page 3703 to '4 of the record, where counsel for the State indicated that the armed robbery charge could be added because the primary charge, the -- the first-degree murder, had been dropped to second-degree murder, and specifically said, Mr Bourke is correct, that, had we filed for first-degree murder, there may be double jeopardy problems. But, because they had unpacked that charge from murder and armed robbery down to murder and, also, armed robbery, there was no double jeopardy problem. That is what --
Justice Kennedy: What about -- what about the basic problem in this case, as I understand the question presented, is should the State be responsible Alderson Reporting Company Official when the funding problem is at a local level? So suppose you have a State that says -- you know, we have had problems in funding; if we give this to the counties, it's going to be much better, and the counties are very, very good at raising money and knowing who the counsel are. And so it's all handled by the county. Then one county has a disaster, a hurricane in that county, particularly. Is that not a reason for delaying? Or does the State have to immediately step in and -- and supplement the funding? Can't the county say, oh, we need another two years?
Richard Bourke: Well, Justice Kennedy --
Justice Kennedy: I take it that's the issue that we're trying to decide here.
Richard Bourke: Well, I think it starts with the proposition that it is the State, not the prosecutor, who has the responsibility to ensure a speedy trial, in accordance with due process. And then the State can make all sorts of different arrangements, and the States around this country make different arrangements, but it's their responsibility to make sure that they work. And, if they don't work, then the State is going to have to make reasonable accommodation for that, to meet its Alderson Reporting Company Official responsibility. And so, by assisting the cause of delay against the State, but within the Barker weighing framework, the courts dealing with speedy trial claims would be able to deal with short-term unexpected exigencies. They would be able to weigh the reasonableness of the response. A valid reason for delay will justify that delay, as this Court said in Barker, but here --
Justice Breyer: The answer to the question -- that's what I was trying to do -- this case -- the briefing is filled with whether he asked in time, whether he was delaying, whether he should have done some other thing, whether he should have -- but the question that's asked is, simply, whether the failure to fund counsel is a factor that should be weighed against the State.
Richard Bourke: Yes.
Justice Breyer: And maybe it only gets very little weight because maybe there was a hurricane, and maybe it doesn't even matter because he didn't make the right motions. But the lower court said it shouldn't be weighed against the State, period. And do we have to do anything other than say, if you're right, yes, it should. Alderson Reporting Company Official Now, how much weight it gets, well, that depends. There was a hurricane and -- but -- but it's something that they can't just ignore in -- in the hearing. They have to figure out what happened and to -- to the extent the State should have done more, it weighs against the State. Do you want any more than that?
Richard Bourke: Yes, Your Honor.
Justice Breyer: And what else?
Richard Bourke: The first thing that we want is exactly that, Your Honor, that the court below incorrectly -- incorrectly failed to attribute this to the State. And this Court -- I accept this Court could stop there and remand to the Third Circuit to deal with that in accordance with --
Justice Scalia: Not -- not quite. I mean, the question presented is not as general as that. It's much more fact-bound. It says whether a State's failure to fund counsel for an indigent for five years, particularly where failure was the direct result of the prosecution's choice to seek the death penalty, should be weighed against the State for speedy trial purposes. I think this is inviting us to look into the facts of this case and decide whether this five-year Alderson Reporting Company Official delay, particularly since the prosecution chose the death penalty -- you know, I don't like having to do that and -- but it seems, to me, that's what the question presented at least requires.
Richard Bourke: Well, Your Honor, it -- I think it would be open to this Court to answer the question by saying the court got it wrong at the first step by failing to attribute it to the State and then remand for full consideration of weighing, in light of that. What we have asked in our briefing for the Court to do is to also provide some guidance on the weight that should be given to delay resulting from the lack of funding because in this case --
Justice Alito: If we provide -- if we provide that guidance, what do we do about the continuances that Mr. Lorenzi requested that relate to the funding? "January 10, 2003, Lorenzi requests a continuance of funding hearing, citing scheduling problems." "August 5, 2003, Lorenzi moves to continue hearing on motion to designate source of funds so that the Indigent Defender Board can consider funding Boyer's case at an August 26 meeting." So this is -- okay. "Lorenzi moves to continue September 12, 2003. Lorenzi moves to continue hearing on motion to Alderson Reporting Company Official designate funds in trial, so that the IDB may, again, consider the funding defense at its next meeting. December 15, Lorenzi moves to continue hearing on motion to designate funds," et cetera. There are many of these motions. What do we do with those?
Richard Bourke: Your Honor, I'd suggest that this Court does exactly the same thing that the Louisiana Court of Appeal did with them, which was to find that it was the lack of funding, not any action by Mr. Lorenzi, which caused the delay. The -- the Louisiana Court of Appeal declined to adopt the State's argument that it was Mr. Lorenzi's fault. And the reason it did that was because the lack of a funding hearing caused no delay at all in the conduct of this trial. The funding hearing, when conducted, produced no funding, no ruling or order, and had no influence on the date of the trial. And, of course, the right at issue was the right to go to trial, not to -- the timing of pretrial hearings. Furthermore, all of those continuances, which were joined in by the State, were related to trying to identify and find funding for this case and for this man. None of them were for a dilatory purpose. Alderson Reporting Company Official They were because a new procedure was announced to submit bills in a different way to the IDB because the Louisiana Supreme Court had accepted the Citizen case. And ultimately --
Chief Justice Roberts: Well, I mean, Justice Alito's problem seemed, to me, to get back to Justice Scalia's point, is that he seemed more interested in the funding than a speedy trial, the funding that would be provided by the State under its procedures.
Richard Bourke: In the absence of funding, there was no trial to be had. At the funding hearing -- or I'm sorry -- at the motion to quash hearing in November 2006, there was a colloquy between the trial court and the prosecutor in which the trial court said, what are we going to do with this case? They can't have a defense without money. This was not -- absolutely not --
Chief Justice Roberts: And, as Justice Alito pointed out on several occasions, what the defense lawyer said was, let's put it off and see if we can get funding, let's put it off until there's the funding hearing, let's put it off and put it off, as opposed to saying, I want a speedy trial, I'm entitled to it now, if you don't have the money, I don't get a Alderson Reporting Company Official speedy trial, I get off scot-free.
Richard Bourke: Well, under Louisiana's Article 701, there was no filing a motion for speedy trial, saying, please give me a speedy trial, set a date now. And at the same time --
Justice Scalia: The Constitution requires such a motion. I mean, I don't care whether they have a -- you know, a speedy trial motion. If -- if denying him the right to speedy trial violates the Constitution, surely, he is entitled to bring that to the attention of the Louisiana court, whether there's a specific statutory or rule provision or not.
Richard Bourke: Your Honor, this Court, in Barker, when dealing with this very topic under the issue of assertion, specifically said it would allow judges to take account of assertion in accordance with local procedural requirements. The local procedural requirement in a State that already has its own statutory prescriptive period, if you don't bring second-degree murder to trial within two years, you're out. The -- Louisiana does not need a defendant to tell them that they have to bring a speedy trial, and they don't want a defendant doing it, unless they're ready to go to trial themselves. They don't want the Alderson Reporting Company Official sort of pro forma assertion that was rejected.
Justice Scalia: Now, they -- they don't even want counsel to say -- you know, Your Honor, we've been trying to get funding, and we're -- we're just sick and tired of waiting for this. We demand a speedy trial, and, if we don't get funding and, therefore, don't get a speedy trial, we think there's a constitutional violation, and we're going to ask that the indictment be dismissed.
Richard Bourke: Well, in July --
Justice Scalia: Nobody ever made a statement like that to the Court, did they?
Richard Bourke: In July of 2005 --
Justice Scalia: What did you say?
Richard Bourke: In July of 2005, Mr. Lorenzi moved to quash the indictment and said exactly that, said, it's too late, no funding, no trial, speedy trial is up. And it was still another two years before the funding crisis was solved. So there was a very lengthy period, if such notice were required -- and that is not, in our submission, the message from Barker and the message from Article 701, they got that notice in July 2005, when there was the motion to quash. And returning to your question -- Alderson Reporting Company Official
Justice Ginsburg: But wasn't there something about that motion was withdrawn -- the 2005 motion was withdrawn in 2006?
Richard Bourke: If -- if I can clarify that, Justice Ginsburg, Mr. Lorenzi was at pains to say he was not withdrawing the motion, but dismissing the motion to quash because he couldn't advance it in a successful way in Louisiana without demonstrating prejudice.
Justice Scalia: Dismissing it, instead of withdrawing it, that's the fine line he's drawing?
Richard Bourke: He specifically --
Justice Scalia: Is that a line in Louisiana law? I don't know. Does this -- this come from French law or something? It seems, to me, withdrawing and dismissing sound, to me, the same thing.
Richard Bourke: Well, the point, Your Honor, was that he was not withdrawing his claim to a speedy trial, but, rather, dismissing his motion to quash on the violation of that at --
Justice Scalia: Withdrawing his motion to quash. So it was withdrawn, right?
Richard Bourke: No, it was dismissed. He chose dismiss, rather than withdraw is the word, and what he intended by that was that he wasn't saying, I don't want one; he was saying, I can't bring the type of hearing Alderson Reporting Company Official Louisiana courts require to get my Sixth Amendment motion to quash granted.
Justice Sotomayor: I -- I think what you -- let's go back to that. It was his view that, under Louisiana law to assert his Sixth Amendment right, he had to follow the procedure laid out in the Louisiana rule?
Richard Bourke: To move for a speedy trial, he had to do exactly that.
Justice Sotomayor: Under the Sixth Amendment, he had to comply with the requirements -- the procedural requirements of Louisiana.
Richard Bourke: The local procedural requirements for how one goes about doing that.
Justice Sotomayor: All right. So then how do you -- if he couldn't do it in 2002, '03, '04, or '05, how did he end up doing it in '05?
Richard Bourke: The -- it's the difference between moving for a speedy trial, please give me a trial date, I want to go to trial next week, and moving to quash because the speedy trial right has been violated.
Justice Sotomayor: So why didn't he move to quash earlier? Alderson Reporting Company Official
Richard Bourke: He moved to quash at the first moment that it became available under the State statute, which was at the three-year mark. He moved one month after that three-year mark, as soon as it became available.
Justice Sotomayor: I'm sorry. What -- is there a law or a regulation in -- in Louisiana that gives it a three-year mark?
Richard Bourke: Yes, Your Honor. Article 579 and following provides that the State must bring a first-degree murder charge to trial within three years, or the case is prescribed, the indictment must be dismissed with prejudice. And so the State always knew it had that deadline. It didn't even set a trial date for a period of over three years in the middle of this, didn't even try to set a trial date for three-and-a-half years, didn't bring Mr. Boyer into court for three-and-a-half years to address his case at all. And so, as soon as the remedy available became open, as Judge Cook said in her opinion, defense counsel filed using exactly the remedy provided for. If there are no further questions, Your Honor, I will reserve the remainder of my time.
Chief Justice Roberts: Thank you, counsel. Alderson Reporting Company Official Ms. Sigler? ORAL ARGUMENT OF CARLA S. SIGLER ON BEHALF OF THE RESPONDENT
Carla S. Sigler: Mr. Chief Justice, and may it please the Court: This Court should affirm the holding of the Third Circuit Court of Appeals for three separate reasons.
Justice Sotomayor: How about the reasoning -- is delay because of the lack of funding attributable to the State or not? Or to the district attorney as agent of the State?
Carla S. Sigler: Justice Sotomayor, I don't believe that the funding -- that we can credibly argue that funding is completely outside the role of the State.
Justice Sotomayor: So what's wrong with what's been suggested by some, to remand to tell the court below to whatever extent this was the basis of your decision, it was wrong. Now, redo the Barker -- the factors.
Carla S. Sigler: Well, Your Honor, if you review the Third Circuit Court of Appeals opinion, which is at Appendix D, the other Barker factors are analyzed, incredibly thoroughly, with a mind to this Court's Alderson Reporting Company Official jurisprudence, and the rationale may be flawed with regard to that one point in this Court's opinion, but the result is not.
Justice Sotomayor: So is one factor determinative always in this calculation? I thought it was a weighing factor. And so, if it's a weighing factor, why isn't that, in and of itself, a factor that a court needs to weigh against the others?
Carla S. Sigler: I think that this Court has always acknowledged, in its Barker v. Wingo jurisprudence, that there is no one talismanic factor; all of the factors are interrelated, and all are reviewed. And that is why, even if the Court disagrees with that one assessment of the Third Circuit's opinion, the result is sound. With --
Justice Kagan: Well, but how do we know that? How do we know that they would have reached the same determination if they had gotten it right on that single factor?
Carla S. Sigler: I think, when you look at the Third Circuit of Appeals opinion, they specifically -- and with direct quotations to Barker v. Wingo, go through every other factor in the analysis. And they discuss the fact of the repeated continuances of defense Alderson Reporting Company Official counsel of his own funding motion as part of the assertion of the right.
Justice Sotomayor: But wait a minute. This is a --
Justice Kagan: Whether something is --
Justice Sotomayor: I'm sorry.
Justice Kagan: Whether something is the State's fault is a significant factor in the analysis, and we have made that very clear in our cases. And so, if they got that wrong -- and -- and you, I think, quite rightly, are saying we can't defend that part of it -- if they got that wrong, don't we at least have to say, okay, well, get it right now, and do it again?
Carla S. Sigler: Well, Justice Kagan, I don't think that what I would say is they got it completely wrong because, as this Court has acknowledged throughout its Barker jurisprudence, there are different weights you attribute to government action, whether it is negligence or whether it is a deliberate attempt on behalf of the State to evade giving a defendant his Sixth Amendment right to counsel.
Justice Kennedy: I -- I would like to get the structure of your argument. You began to say there's three reasons. I would just like to hear those three reasons, so that I can understand the framework Alderson Reporting Company Official for all these questions.
Carla S. Sigler: Yes, sir, Justice Kennedy.
Justice Kennedy: The three reasons that we should affirm.
Carla S. Sigler: The first reason is that, as in Vermont v. Brillon, the delay occasioned in this case was due to Petitioner's counsel's repeated requests to continue his own funding motion, which delayed a source of funding when he -- the Petitioner wished to proceed with capital-certified counsel.
Justice Kennedy: Okay. And the second?
Carla S. Sigler: The second reason, Your Honor, would be, pursuant to Loud Hawk, even if this Court determines that there was a negligence factor with regard to the State of Louisiana in not properly funding capital-certified counsel, there are valid public policy interests at play here and the fact that Louisiana is generous enough to provide specially-certified counsel to capital indigent defendants, when there is no constitutional requirement for it to do so. And then our third argument, Your Honor, would be that, based under the Barker v. Wingo jurisprudence, the delay should not be attributed to the State in this case because of Petitioner's failure to meaningfully assert his right to a speedy trial. And -- Alderson Reporting Company Official
Justice Kennedy: Okay. Thank you.
Carla S. Sigler: Yes, sir.
Justice Ginsburg: How -- on that, how could it possibly be Lorenzi's fault, which is what you said is your first point, when he said, pay me, Supreme Court of Louisiana, you have said that my operation as counsel for this indigent defendant doesn't become operative till I get paid, I have a right to get paid. All that counsel did was to say, again and again, pay me, get the funds to pay me. I don't understand how in the world it could be the fault of an attorney who has not gotten one cent from the State, has a right to be paid before he engages in representation -- how can it be his fault?
Carla S. Sigler: Well, Justice Ginsburg, there are several reasons why it's Mr. Lorenzi's fault. The first of which is he filed a motion under State v. Wigley, and that is Appendix X of your Joint Appendix. In that motion, he identified State v. Wigley, and, although he referenced wanting expert resources as well, he primarily based that motion on his entitlement to attorney's fees.
Justice Scalia: I -- I was going to ask you that question. Opposing counsel said that it -- it Alderson Reporting Company Official wasn't primarily attorney's fees that's at issue here, but investigation costs. That makes a difference to me because, if it's just attorney's fees, he could have gone ahead with one attorney, as far as I'm concerned.
Carla S. Sigler: I agree with you, Justice Scalia. And, if you look at Appendix LL, which is the hearing on the motion to quash, Mr. Lorenzi says, point blank -- in that appendix, he says, "I was not going to proceed to file substantive motions until I was funded." And --
Justice Sotomayor: Doesn't he say, at the same time, I couldn't do the investigation to make the motion required by the State? So didn't that implicate the funding for investigation?
Carla S. Sigler: Well, Justice Sotomayor, if you look at Appendix LL, where Mr. Lorenzi is speaking, he says, "I have done substantial investigation on my own." Mr. Lorenzi had the assistance, at that time, of the LCAC, with Ms. Christine Lehmann assisting him as associate counsel.
Justice Sotomayor: Were there funds for investigation?
Carla S. Sigler: There were funds available in 2003 that Mr. Lorenzi did not avail himself of because Alderson Reporting Company Official he continued his funding motion eight times.
Justice Sotomayor: Which funds? Which funds?
Carla S. Sigler: There were -- there was a capital defense account that was held by the Calcasieu Parish Public Defender's Office. Mr. Lorenzi identified that account as a source of funding in record volume 1, pages 193 to 194. He says, in a letter to Judge David Painter, then the presiding trial judge, that he has identified a source of funds for his representation. In that same letter, he moves to continue a funding hearing that was, at that time, scheduled for the next month. And --
Justice Sotomayor: Wait a minute. I was told -- maybe I am sort of misreading this record -- that he was ultimately told that fund wouldn't be made available.
Carla S. Sigler: That is not correct, Your Honor. If you read Appendix LL, Chief Public Defender Ron Ware testifies that that fund had been used to pay other capital counsel in Calcasieu Parish. It had been used extensively. Now, by the time we get to the funding hearing, which was delayed because of Mr. Lorenzi, we Alderson Reporting Company Official are in 2006. At that time, there is a backlog in expenses that they are paying other capital counsel because they pay their bills on a first come, first served basis. Had Mr. Lorenzi proceeded to hearing in 2003, there was an identified account that would have paid him. He did not submit any bills to the public defender's office to be paid.
Chief Justice Roberts: What about --
Justice Kagan: Ms. Sigler, on appeal, you said this, the -- the State said, because the defendant was without properly funded counsel for so long, the State simply could not ethically or legally bring him to trial. So what did you mean when you said that, that the State could not ethically or legally bring him to trial?
Carla S. Sigler: Justice Kagan, what that statement meant was that we were aware of the fact that the Petitioner was, at all times, urging his privilege under Rule 31 to capital-certified counsel. We did not want to be involved in the business of questioning a Petitioner's right to counsel. We did not feel that, ethically, we could do so under the Rules of Professional Conduct. For us to interfere with that right would have been inappropriate, in our Alderson Reporting Company Official view.
Justice Kagan: Well, did you ever say to Mr. Boyer -- you know, you can go ahead, right now, with this single counsel that you have? Was -- was that ever a choice put to him? Or because -- the way I read all of your assertions below and, indeed, the entire record below, is that everybody simply assumed that the case could not go forward in its present circumstances.
Carla S. Sigler: Justice Kagan, I think that that assumption was made, in part, out of a desire to recognize Mr. Boyer's decision to try to pursue Rule 31 privileges. It's certainly -- I understand that we could have --
Justice Kagan: Well, a decision implies a choice. Was a choice ever put to him?
Carla S. Sigler: He had a choice that was implicit, Your Honor, under Louisiana law; and he knew that, and his counsel certainly knew that.
Justice Kagan: Well, you didn't even know that. You said the State could not ethically or legally bring him to trial. How was he supposed to know that?
Carla S. Sigler: Justice Kagan, our response in -- in that particular phrase that you are speaking of has to do with our response to how the Petitioner has Alderson Reporting Company Official phrased this issue all along. The Petitioner has continuously phrased this issue as if he had a right to capital-certified counsel, and, in fact, in his reply brief, that is what he states.
Justice Scalia: I thought -- I thought the statement meant could not ethically or legally bring him to trial while he is insisting on his right to two counsel.
Carla S. Sigler: That's correct, Justice Scalia.
Justice Scalia: It would have been different if he had said, the devil with the second counsel, I want a -- I want a prompt trial.
Carla S. Sigler: That's correct.
Justice Scalia: Then you would have felt that, legally and ethically, you could proceed.
Carla S. Sigler: Yes, sir. Yes, Your Honor.
Chief Justice Roberts: What about your friend's argument that he couldn't ask for a speedy trial without an affidavit saying he was ready to go to trial?
Carla S. Sigler: It's interesting that Petitioner argued that here today because, under Article 71 of the Code of Criminal Procedure, while an affidavit is listed in the statute as one requirement, as a matter of course, motions for speedy trial are granted pro se Alderson Reporting Company Official all the time that meet none of the requirements in that statute. In addition, Rule 31 does not say that a defendant who is trying to avail himself of Rule 31 can't file a motion for a speedy trial. It says nothing to that effect.
Justice Ginsburg: Mr. Boyer was -- had a limited education and a low IQ. Did anyone ever counsel him about this, no, you don't have to have two lawyers, you can have one? Did any judge ever tell him what his rights were?
Carla S. Sigler: Well, Justice Ginsburg, I would first like to address that I do not believe the petitioner has a low IQ. In fact, that was refuted by our Dr. Charles Robertson at a competency proceeding. In fact, the results that was given from an IQ test when he was 15, the person administering it specifically stated that he was malingering, which would cause a 10-point drop in the IQ --
Justice Ginsburg: What was the level of his education?
Carla S. Sigler: I believe his level of education was eighth grade. But I would --
Justice Ginsburg: And he was expected to know all this about two counsel -- you have a right to Alderson Reporting Company Official two counsel, but, if the State isn't going to pay them, you can go forward with one counsel? Did anyone ever tell this man, with an eighth grade education, what his rights were?
Carla S. Sigler: Justice Ginsburg, I don't believe that that specific discussion was ever had --
Justice Scalia: His -- his one counsel might have known.
Carla S. Sigler: His one --
Justice Scalia: He did have one counsel. He had one counsel because he only graduated from the eighth grade. That's why we provide counsel. And that counsel could have known, no?
Carla S. Sigler: Absolutely. In fact, Mr. Lorenzi was well aware of the fact that he could have chosen -- the Petitioner could have chosen to proceed with just one counsel. But I'd also like to note, Justice Scalia, that, from 2002 to 2004, he had three counsel. He had Mr. Lorenzi, he had Mr. Steven Singer, and he had Ms. Christine Lehman. He didn't just have one; he had three.
Justice Ginsburg: And she was not -- you know, you said that, at all times, he had at least two. It seemed to me -- two paid counsel. Lorenzi wasn't Alderson Reporting Company Official paid, so it was -- was it Singer?
Carla S. Sigler: Yes, ma'am.
Justice Ginsburg: And then the woman -- Lehman, is it? But, when she started representing him, she didn't have the qualifications to be counsel.
Carla S. Sigler: Well, Justice Ginsburg, as has been alluded to before, I believe, by Justice Scalia, she absolutely had the qualifications to serve as counsel, as required by the Sixth Amendment. And --
Justice Ginsburg: But she wouldn't -- she couldn't be appointed counsel in a death case under Louisiana's rules.
Carla S. Sigler: She met the qualifications for associate counsel. In fact, she was later certified in a motion filed by Mr. Lorenzi to be associate counsel --
Justice Ginsburg: Yes, but, in the very beginning, she wasn't even qualified to do that.
Carla S. Sigler: Well, there was a provision -- there is a provision in Louisiana law -- law that allows someone to move for the admission and the certification of somebody as capital counsel, which was the procedure employed in this case. That is perfectly permissible. But Miss Lehman, at that time, was a very experienced attorney, and we lay out her qualifications in the brief. So, while she may not have been perfectly Alderson Reporting Company Official qualified under Rule 31 to serve as lead counsel, she certainly was more than qualified --
Justice Sotomayor: Is -- is --
Justice Scalia: She was a graduate of Yale law school; wasn't she?
Carla S. Sigler: She's a very impressive attorney.
Justice Scalia: And another of his counsel, Mr. Singer -- of the three that he had -- he was a graduate of Harvard law school; wasn't he?
Carla S. Sigler: Yes, Your Honor.
Justice Scalia: Son of a gun.
Carla S. Sigler: Very exceptional.
Justice Sotomayor: Is that the minimum constitutional --
Justice Thomas: Well, there -- see, he did not provide good counsel. (Laughter.)
Carla S. Sigler: I would refute that, Justice Thomas.
Justice Sotomayor: Counsel, is -- do you want to define constitutionally adequate counsel? Is it anybody who's graduated from Harvard and Yale? (Laughter.)
Justice Sotomayor: Or even just passed the Alderson Reporting Company Official bar?
Carla S. Sigler: Or LSU law. I went to Harvard.
Justice Sotomayor: I would think -- no, no, no. This is a very serious question which is, I don't know that we have ever defined what the minimum qualification is for qualified counsel. But it is -- some of it has to be that counsel themselves feel adequate to represent a capital defendant.
Carla S. Sigler: Well --
Justice Sotomayor: I know plenty of lawyers who would never either volunteer or would resist being appointed to take on that kind of case because it has many differences to a normal case.
Carla S. Sigler: I would agree with that, Justice Sotomayor, but I would invite you to look at the motion that moved for the certification of Ms. Lehman, which is in the record. That motion --
Justice Sotomayor: She's a very experienced trial counsel. There's no -- no doubt of that. But was she a capital counsel?
Carla S. Sigler: She was, Your Honor. That motion specifically refers to the seven capital cases she had worked on and states that, while at the LCAC -- the Louisiana Capital Assistance Center -- she had Alderson Reporting Company Official worked on other capital cases in advisory positions. So she --
Justice Alito: Let me -- let me give you a holding -- this is an incredibly factually complicated case. We don't usually take cases that are so fact-bound, but we've taken it. (Laughter.)
Justice Alito: Let me give you a rule that we might adopt. If the failure to provide funding makes it impossible for some period of time for a case to be tried, then the delay is attributable to the State. Would you agree with that?
Carla S. Sigler: If the failure to provide funding is a deliberate attempt on the State to interfere with the Sixth Amendment right to counsel, then I would agree with that.
Justice Breyer: You also agree, right on this subject, that the only sentence that I can find -- I haven't read it totally carefully -- but, in the lower court opinion, that has to do with this is the sentence I read before. And it says, "The first three years he was incarcerated, he was charged with first-degree murder, and the progression of the prosecution was out of the State's control, as determined by this Court and the Alderson Reporting Company Official Supreme Court." Now, when I look at those words, I am not 100 percent certain what they mean. So it would be helpful -- but I don't want --- you're not going to do it -- I'd like to -- are you -- would you concede that that statement means they're saying that the State, for speedy trial purposes, is not to be held accountable, really, at all, for not providing the money, insofar as that's a cause of the delay? Is that a conceded point? Or is that something I have to spend quite a lot of time going through? And, if you don't concede that, what is it that you concede, which would spare a little time going through this record.
Carla S. Sigler: Justice Breyer, I regret to inform you that I do not concede that point.
Justice Breyer: All right.
Carla S. Sigler: I believe that if you look at the -- (Laughter.)
Justice Breyer: I thought maybe you would not, but -- (Laughter.)
Carla S. Sigler: I believe that, if you look at Alderson Reporting Company Official Appendix D, as I stated earlier, the other Barker factors are discussed. And the continuance motions that were filed by defense counsel are mentioned with regard to the assertion of the right; they are not necessarily mentioned with regard to the State.
Justice Breyer: Yes, you are right. Most of this opinion -- and almost all of it is about the other factors. Now, I agree with you, that's what it looked like. But we do have this sentence. So how am I supposed to figure out whether that sentence really means what they say? Or just is something they threw in to make the opinion more difficult for us to understand?
Carla S. Sigler: I don't think that was the stated -- the -- the intention of the Third Circuit, Justice Breyer.
Justice Breyer: No, I don't either. I don't either. But what's the argument -- sounds as if it has something to do with funding. So what's the argument it doesn't?
Carla S. Sigler: Well, I believe --
Justice Breyer: I mean, it says, you see, "as determined by this Court and the Supreme Court." What were they talking about?
Carla S. Sigler: Well, I believe what the Third Alderson Reporting Company Official Circuit was referring to was this Court's Barker v. Wingo jurisprudence. This Court has stated, repeatedly, that even if something --
Justice Breyer: Oh, okay. Well, then, that's it. They're referring to Barker. Okay. So when they say it's out of this State's control, as referred to in Barker, which is our case, then what they mean is that it's not something that the State had anything to do with, so they shouldn't be blamed for it.
Carla S. Sigler: I think that they are attempting, in some fashion, to reconcile some of this Court's later statements in the Barker jurisprudence, which this Court made it clear, in Vermont v. Brillon, that certain actions are not going to be attributed to the State for speedy trial purposes --
Justice Breyer: When you agreed with --
Justice Kagan: Ms. Sigler, could you go back to Justice Alito's question?
Carla S. Sigler: I'm sorry?
Justice Kagan: That was a good -- that was a good segue.
Justice Sotomayor: You added the word "deliberate" --
Chief Justice Roberts: Justice Alito, I Alderson Reporting Company Official think, has a question pending.
Carla S. Sigler: Okay.
Justice Alito: Well, you agreed with the -- the principle that I mentioned, except that you want to draw a distinction between the failure to provide funding and the deliberate failure to provide funding? Is that a real difference?
Carla S. Sigler: Absolutely.
Justice Alito: Can the State inadvertently failed to provide funding?
Carla S. Sigler: I think that this Court has always recognized, in the Barker jurisprudence, that negligence is a very different factor in how it weighs against a State than a deliberate attempt to violate a constitutional right to a speedy trial.
Justice Sotomayor: How can --
Justice Kagan: When we said in Krillon delays resulting from a systemic breakdown in the public defender system could be charged to the State, so that suggests systemic breakdown doesn't necessarily mean deliberate. It just means there has been a breakdown, and the result is that the person can't get to trial. And if -- I think -- if Justice Alito could even read that again and if you think about it, in light of this statement in Krillon, that systemic breakdowns Alderson Reporting Company Official are systemic breakdowns, whether or not they are deliberate.
Carla S. Sigler: Well, Justice Kagan, I think that the best evidence or the fact that there was no systemic breakdown is the funding hearing itself, Appendix JJ. At that funding hearing, there are extensive discussions about other capital cases within the State that are being tried the entire time this case is pending, including one case that we referred to, State v. Reeves, in Calcasieu Parish, a capital case that went to trial in less than four years, that included a retrial.
Justice Alito: Well, let's say you have a case where the -- the defendant wants counsel, can't afford counsel, and the State says, we'd love to provide counsel for you, but we're broke, we just don't have any money to provide counsel, but, maybe in a year, we'll have money to provide counsel. Now, what do we do with the delay between that point and -- and the -- the point, a year later, when the money becomes available?
Carla S. Sigler: Well, I think, from that scenario, we would have to look at the State's intention. I certainly think that, if the State flat Alderson Reporting Company Official out said, I'm sorry, you're not getting counsel for a year, then we would have to attribute that factor to the State more heavily, even though it does appear that, in your scenario, it's more of a negligence problem than a deliberate we're not going to fund you problem.
Justice Breyer: Suppose it is negligent. For -- for a year, this person isn't represented because the State keeps sending the checks to his cousin of the same name. I mean -- you know, they didn't do it purposely. He just happens to have a cousin, this lawyer, of the same name, who doesn't tell him he's getting these checks out of nowhere. So he can't hire the expert. Absolute negligence. I mean, that's not to be attributed to the State?
Carla S. Sigler: No, Justice Breyer. Clearly --
Justice Breyer: Is there any authority for that? I mean -- you know, maybe you'd discount it because it wasn't deliberate, but no attribution whatsoever?
Carla S. Sigler: Well, you discount it, Justice Breyer, and you attribute it to more of a negligence standard than you would a -- an absolute failure or refusal to provide counsel. And this Court has done that repeatedly. Alderson Reporting Company Official
Justice Sotomayor: I'm sorry. What's the difference between saying, I'm broke, and I want to pay the prosecutor because they kept paying the prosecutor, I want to pay for the prosecutor's investigation, but I won't pay you? What -- what is the difference in applying the negligence versus deliberate standard? I mean, look, in the end, States are always strapped, but I don't know a State who doesn't make some income. They make a choice about where they want that income to go. And it may be, in your judgment, a more legitimate decision, but why is the situation less negligent -- why is it negligent and not deliberate? Why is the choice one, not the other?
Carla S. Sigler: Because, Justice Sotomayor, I believe in this Court's decisions, under Barker v. Wingo, the choice aspect -- the deliberate intent aspect has been looked at by the courts in deciding how much of the blame is to be assessed against the State.
Justice Sotomayor: Well, then answer the question. Why isn't the choice to say, I -- I'm broke, so I don't want to pay you, I'm going to pay the prosecutor -- which happened, the prosecutors were being paid throughout. They had enough money to investigate, but we're choosing not to pay the defendants. Alderson Reporting Company Official Why isn't that a deliberate choice?
Carla S. Sigler: Well, Justice Sotomayor, that choice was not made in this case. There was available funds. What we're here -- we're here today --
Justice Sotomayor: Available funds to pay the lawyer?
Carla S. Sigler: There were available funds in 2003. I was referring to that letter in the record that --
Justice Ginsburg: The -- the court itself said, repeatedly, that the cause of the delay was the funding crisis, the court -- I think we have to accept that as being the case, that the funding crisis -- the effort to get this lawyer paid failed, time and again. And it was the court determination that it is the funding crisis that caused the delay.
Carla S. Sigler: Well, Justice Ginsburg, the funding crisis that the court ruled on was present in 2006. It was not present in 2003, when this case started. Mr. Lorenzi, himself, identified a source of funds -- funds to pay him. And when we hear Chief Public Defender Ron Ware testify at that motion for funding hearing, at Appendix JJ, he says, yes, I have a special capital defense account, and, yes, I have been paying capital Alderson Reporting Company Official attorneys from this account throughout this time period. The fact that there weren't funds readily available in 2006 is directly attributable to Petitioner's counsels failing to move his funding herein forward in 2003, when he first identified that source of funds. This is not a case in which there was never any funding. This was a case in which defense counsel, for whatever reason, delayed a resolution of the funding issue, an issue that he, himself, identified as one -- without any resolution, he was not going to go forward with substantive motions. The onus -- the -- the blame -- or more of the blame in this case, on the funding problem, belongs with the Petitioner, not the State of Louisiana, whether we mean the prosecution --
Justice Sotomayor: I'm not going to argue the funding issue because I've got to go look at the record again. But let's assume that the record doesn't support your claim because, as I read the decisions below and the record that I saw, there wasn't funding available until -- I think it was 2006 or '7? And so, somehow, there's a disconnect between what you're saying and the record. But let's assume that -- my hypothetical, Alderson Reporting Company Official that there wasn't money, despite whatever you're saying. What's your position then? Then it's not deliberate? It's still negligence.
Carla S. Sigler: Justice Sotomayor, I maintain that position, and I believe it to be consistent with this Court's repeated analysis under Barker v. Wingo jurisprudence. You do look at the intent of the State as either a negligence factor, akin to more of a neutral factor, a deliberate factor, or a valid reason for the delay. And I would also suggest to Your Honor --
Justice Sotomayor: So there could never be a systematic breakdown, in your judgment, because any time the State gives resources to something else, it's not deliberate -- it's not a systemic breakdown.
Carla S. Sigler: Justice Sotomayor, I would invite you to look at the motion for funding hearing again. There was money allocated to indigent defense by Louisiana. It has increased -- and this is public record, and it's partially supported by the funding hearing. That money has increased from 9.4 million in 2006 to 20 million in 2 -- I'm sorry -- in 2005, to 20 million in 2006, to $33 million today. House Bill 1 of the State legislative website. That is the precise Alderson Reporting Company Official amount prosecutors are awarded by the State. I would, again, suggest that this is not a case of systemic breakdown. And I think that, as a policy matter, this Court should be reluctant to rule against the State of Louisiana, which, as Justice Scalia noted, has been so generous in trying to provide capital indigent defendants with specially qualified counsel, which is more counsel than they're even entitled to under the Sixth Amendment. And I would also urge this Court to be cognizant of its own repeated statements in the past, that this is a very severe remedy with regard to letting a convicted murderer free. I'd also like to address, before I sit down and turn this back over to Mr. Bourke, Justice Ginsburg, earlier, you had addressed the question of whether or not the armed robbery was, in fact, still a valid charge. Contrary to Mr. Bourke's assertion before Your Honor today, if you look at Appendix 254A, there is a writ of opposition that was filed by the Petitioner before the Louisiana Supreme Court. And, at 254A, he says -- and I quote -- "Even if the murder indictment were quashed, Mr. Boyer faces the armed robbery prosecution." Alderson Reporting Company Official The Third Circuit also rejected Mr. Bourke's current double jeopardy argument and stated specifically that there was no speedy trial problem with regard to the armed robbery. Thank you.
Chief Justice Roberts: Thank you, counsel. Mr. Bourke, you have about 3 minutes remaining. REBUTTAL ARGUMENT OF RICHARD BOURKE ON BEHALF OF THE PETITIONER
Richard Bourke: Thank you. And I have a few points of clarification that I want to make, just in a very quick fashion. Justice Sotomayor, there was no funding in 2001, 2002, 2003. It was never there. If Your Honor looks at the Louisiana Supreme Court opinion in Citizen, it will describe the Turner case funding hearing in 2001. Mr. Lorenzi was stuck with that one as well. There was no money. Mr. Lorenzi did, indeed, submit bills in 2003 because a new procedure had been announced, and that's at page -- Joint Appendix page 401 to '3. You'll see the correspondence showing he did submit bills, and there was no money.
Justice Sotomayor: There was money Alderson Reporting Company Official allocated, but, if I understood the record correctly -- by the State -- the funding was grossly inadequate to cover all the needs?
Richard Bourke: Right. It was -- it was underwater. It was oversubscribed. It --
Justice Scalia: Mr. Bourke, would you respond to the last point made by -- by opposing counsel?
Richard Bourke: Yes, certainly.
Justice Scalia: You did state -- it's in Appendix J -- "Even if the murder indictment were quashed, Mr. Boyer faces the armed robbery prosecution."
Richard Bourke: Yes, Your Honor.
Justice Scalia: You told us, today, that that's not the case, that the armed robbery prosecution goes down the drain. Which -- which is true?
Richard Bourke: The passage you're referring to is from a writ application purely limited to the application of the State speedy trial statute, which does accord a new clock to every new filing. So, under Louisiana State statutory law, the armed robbery started the State statutory clock again, but that is not the case for the Sixth Amendment --
Justice Sotomayor: As to the murder or as to the independent robbery count? It's not a lesser Alderson Reporting Company Official included offense, the robbery count.
Richard Bourke: The armed robbery was a lesser included of first-degree murder, but it is not a lesser included of second-degree murder. Our double jeopardy argument was the same force was applied in both, the force for the murder and the force for the armed robbery, so that's completely irrelevant. But that was a State statutory argument about the armed robbery charge, which has no application in the case in front of us.
Justice Kagan: Mr. Boyer -- why would --
Chief Justice Roberts: Go ahead.
Justice Kagan: Why would we get to that question? I mean, no courts below have dealt with it. It has been briefed to us in a grand total of two paragraphs, I think. There would be no reason for us to get to that question.
Richard Bourke: It -- it is well beyond the question presented, Your Honor, I agree. Your Honor, the --
Justice Kagan: And so -- so, from that point of view, we can assume that there is a robbery conviction that is still out there.
Richard Bourke: He has a murder and armed robbery conviction from the same incident. It's the Alderson Reporting Company Official same charge as the first-degree murder. It's just unpacked.
Justice Scalia: Or assume that there isn't, right?
Richard Bourke: That -- that is why this Court would remand to allow the -- the local court to deal with it and ensure that that's accurate. Justice Breyer, the reference to our earlier -- the decision of this Court and the supreme court is a reference to the earlier decision on the interlocutory writ application, the earlier decision that a lack of adequate funds prevented the prosecution. And if Your Honor looks at Joint Appendix, at page 126, which is part of the opinion of the Third Circuit, you will see, earlier, in their opinion, they discuss their own earlier ruling in the supreme court --
Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:59 a.m., the case in the above-entitled matter was submitted.)