ROSENBERG v. UNITED STATES
Legal provision: Jencks
Argument of Edward M. Dangel
Chief Justice Earl Warren: Number 451, Joel Rosenberg, Petitioner, versus United States of America.
Mr. Edward M. Dangel: Mr. Chief Justice --
Chief Justice Earl Warren: Mr. Dangel.
Mr. Edward M. Dangel: -- may it please the Court.
The petitioner here was tried upon an indictment that contained two counts, first count, for having transported in interstate commerce a check that was procured by fraud.
The second count, for a conspiracy between himself, one Meierdiercks, and an unknown person called Mr. Rice in the indictment.
He was found guilty after two trials.
The first trial was reversed by the Third Circuit Court of Appeals.
The first trial was before the Jencks decision and before the so-called Jencks Act.
The reversal by the Court of Appeals was based upon the fact that he was not given FBI material or statements reports, and was not provided with the grand jury minutes concerning two principal witnesses, one Meierdiercks and one Ms. Vossler, Ms. Vossler being the victim of the fraud.
The Jencks Act had not been passed.
Then, he was tried again before the same judge after the Jencks Act was passed.
And during the trial, he was deprived of the material of which we now complain, FBI reports and some statements.
And the Court of -- and the judge, I'll go into this much more fully later, claimed he was acting both under the Jencks Act and under the Jencks decision.
The Court of Appeals confirmed the conviction and they acted under the Jencks Act and the Jencks decision, although they don't say so.
The District Attorney or United States Attorney adheres strictly in his contentions to the Jencks Act.
This Court granted certiorari on the grounds, first, whether the rule on the Jencks case was a rule of mere procedure or did it involve the defendant's constitutional rights.
Then, again, whether or not a clear violation of the rule was harmless error, whether the conceded error of the trial court and the Court of Appeals found that there was -- there was error, error in withholding from counsel prior statements of a principal government witness could be excused by the Court of Appeals because it found that the defense was not hampered in cross-examination of those witnesses concerning material that's in a sealed envelope that's never been seen by the petitioner.
And, another part of the certiorari is that it is proper for a Court of Appeals to determine what use defense counsel might have made of the statements erroneously withheld.
The -- the case, when it came up for trial again and prior thereto, the defendant made two motions.
The third one, which is not too important for a continuance, the two motions were that he be allowed to inspect before trial the statements of Meierdiercks, who was the principal witness and Vossler, who was also a principal witness and who the judge knew, all the judges knew, had to be material witnesses or the Government had no case.
It was first presented to the assignment judge whose ruling was that, because of the Jencks Act, he could not allow the motions at that time.
The preposition being stated to him that it would delay the trial and interrupt the trial, and so forth, and a -- the judge said no.
He was bound to wait until the witness testified, although he knew and everybody else knew that those witnesses were bound to testify.
However, he put a loophole in his ruling to this extent.
He said “you may renew this request again to the trial judge.”
And, the request was renewed to the trial judge who, as I say, was the same judge who tried the case first, and his remarks in the record show that he knows just what the Government needs because he said the Government cannot prove this case, unless Mr. Meierdiercks testifies.
They might leave out Ms. Vossler but I don't see how they could do it.
However, he denied the motion again not as a matter of discretion, as I read the record, but as a matter that he was bound to wait until the witness testified.
Now, at the trial, Mr. Meierdiercks was not only the main witness, but the only witness who implicates the defendant.
And, Mr. Meierdiercks, who himself was a confessed criminal in not only this particular activity but running many, many years with a long criminal career, had made statements to the FBI.
The first statement that he made was that he was in no way implicated in any wrong doing.
He then made another statement in which he again denied that he had done anything wrong or that he knew the petitioner Rosenberg.
Now, there were two interviews with Mr. Meierdiercks before he made a written statement.
Those two appear at the bottom of page 46 and they were not given to the defendant.
I might say, at this point, that never did the Government asked the judge to edit any reports or material in its possession, although I believe that the Government's brief says that the judge could edit what had to be submitted to the defendant.
I don't believe that Mr. Bechtle's objections were based upon anything except the fact that 3500 did not permit these papers to be given to the because they were not signed by Mr. Meierdiercks, they were not approved by him, they were not adopted by him, nor were they verbatim.
He rested on 3500.
Now, these two reports to the FBI agents are interviews with Mr. Meierdiercks but they were not given to the defendant.
I believe they are in the sealed envelope.
This -- most of the material that I can tell you about appears in the Court of Appeals opinion at page 94.
Judge Hasty has, there, revealed the contents of these papers.
Now, what the judge did, he examined them himself.
He took charge and he examined them in camera.
He never allowed the defendant to know any of the contents and, in connection with Exhibits 5 and 6, he gave part of those exhibits, pages 2 and 4, I believe, of Exhibit 6 and certain parts of Exhibit 5.
That's C5 and C6, his own exhibit, the Court's exhibit, but he wouldn't show the rest and the rest, I believe, is also contained in the sealed envelope.
There are also two office memoranda of the FBI concerning the progress and procedure of a then-pending prosecution against Meierdiercks.
That's also page 95 of the record.
There's another paper which contains the detailed physical description and summary and personal history of Meierdiercks.
Still, another is a record of an unsuccessful search for certain names on hotel registers on or about the time of the crime.
The -- then, he says “these and other miscellaneous items from the prosecution's files were obviously not germane to the request of the defendant.”
Why the Prosecution produced them is not clear.
Their surrender could not have been responsive to the defense's request or to any proper request for whatever records the Government had, in verbatim text or otherwise, of prior statements of certain witnesses.
These were given to the judge.
And then, he says there -- in addition, there was a minute or office notation, stating of fact that, on the first questioning, Meierdiercks had denied any involvement and any alleged wrong doing.
Then, there was a typewritten copy of a detailed statement of Meierdiercks about the crime.
The Court of Appeals says there that the handwritten copy was the original.
How do we know that it was the original?
It is a -- it is Exhibit 2.
It's Court's Exhibit No. 2 or maybe Government's Exhibit No. 2.
It's a 10 or a 12-page handwritten statement which Meierdiercks testified -- it's C2, Court Exhibit 2.
Meierdiercks testified that, upon questioning by the FBI agent, the FBI agent wrote a lot of things and he was hesitant about it.
He wasn't cooperative, and then, he became cooperative, and the statement was finally presented to him and he signed it.
And, I saw it this morning in the Clerk's Office and is witnessed by two special agents of the FBI.
But, the typewritten --
Justice Felix Frankfurter: You saw it?
Mr. Edward M. Dangel: I saw -- I saw that one because that was an exhibit, Your Honor.
That was not withheld.
The thing that was withheld was the typewritten copy, and I've dared say that a skillful cross-examiner might have been able to show that the typewritten copy was the original and that the FBI agent's copy, the typewritten copy, and, from that, Mr. Meierdiercks attached his signature.
All I say is that, if the defendant was entitled to this material, he was entitled to make such use of it as might have been available to him.
That is to say, the record at page 96 says, as the Court of Appeals finds, that the handwritten one was the original.
Now, I don't know how the Court of Appeals reaches that conclusion.
Certainly, they really -- the Court of Appeals reaches that conclusion without any statement from the defendant or without any evidence except as they look at the papers.
Justice Charles E. Whittaker: Mr. Dangel.
Mr. Edward M. Dangel: Yes, sir?
Justice Charles E. Whittaker: Let's see if I understand you.
A longhand signed copy was -- or original was, whatever it is, was given to you.
Mr. Edward M. Dangel: Yes, it was given to the defendant.
Justice Charles E. Whittaker: And, the Court had it before it, the Court of Appeals, in the record --
Mr. Edward M. Dangel: It had it.
Justice Charles E. Whittaker: As well as the one that was submitted --
Mr. Edward M. Dangel: In camera.
Justice Charles E. Whittaker: In the envelope and examined in camera.
Mr. Edward M. Dangel: Yes, Your Honor.
Justice Charles E. Whittaker: So, do you argue that the Court couldn't be trusted to determine that they were alike?
Mr. Edward M. Dangel: I'm not -- I don't say the language isn't alike.
All I say is, which is the original?
Justice Charles E. Whittaker: Was that material if you had the --
Mr. Edward M. Dangel: Well, I should imagine that, in cross-examination, it might be immaterial as to whether or not Mr. Meierdiercks originated this statement which was written down, Exhibit C2, or whether somebody else originated that statement.
This is cross-examination.
How frequently do you compare a typewritten copy with a handwritten copy in cross-examination?
And then, again, there is no way of knowing whether there was some deviation in that copy.
The defendant has never seen it.
Is it fair to have the Court of Appeals to make that determination without the defendant seeing it or having an opportunity?
Chief Justice Earl Warren: Was the written -- handwritten statement in the writing of the witness?
Mr. Edward M. Dangel: No, it was not.
It was in the writing of an F -- of FBI agents --
Chief Justice Earl Warren: Yes.
Mr. Edward M. Dangel: Either one or two.
And, the only fact on this 10 or 12-page document is that it concerns the witness' signature at the end and witnessed by two special agents of the FBI.
Justice Felix Frankfurter: Were the original and the transcript invoked by the same -- attributable to the same author, the same person?
Mr. Edward M. Dangel: We can't tell you really.
We can't tell, Mr. Justice Frankfurter.
One is typewritten.
Justice Felix Frankfurter: Yes.
Mr. Edward M. Dangel: And the other is handwritten.
Justice Felix Frankfurter: And nothing to indicate whether the typewritten --
Mr. Edward M. Dangel: Preceded the handwriting?
Justice Felix Frankfurter: I don't care whether it's preceded or followed.
Mr. Edward M. Dangel: No, that's correct.
Justice Felix Frankfurter: Was it by the same -- was the same person responsible --
Mr. Edward M. Dangel: I --
Justice Felix Frankfurter: For the contents of both?
Mr. Edward M. Dangel: I have never seen it, nor has the petitioner ever seen it.
Justice Felix Frankfurter: No, but the judge passed on that.
Mr. Edward M. Dangel: The Court of Appeals passed on it, first, the judge, and then the Court of Appeals.
Justice Felix Frankfurter: So, the question on that point is not interpretation of meaning --
Mr. Edward M. Dangel: No --
Justice Felix Frankfurter: But merely identity of the symbols.
Mr. Edward M. Dangel: Yes.
Origination is the --
Justice Felix Frankfurter: What?
Mr. Edward M. Dangel: The origination of the paper is important.
Justice Felix Frankfurter: Well, I don't know if the -- why do you say the origination is important?
Mr. Edward M. Dangel: Well --
Justice Felix Frankfurter: If one is an identical copy of the other, but you're concerned with, was there a -- was this in contest that there wasn't somebody who wrote something?
Mr. Edward M. Dangel: This is a contest as to whether somebody said something.
Justice Felix Frankfurter: Yes.
Mr. Edward M. Dangel: It's a contest whether Meierdiercks --
Justice Felix Frankfurter: But it's not invoked -- they both say the same thing.
You can't get any change from if they're both identical, can you?
Mr. Edward M. Dangel: Well, you can get some change in it.
Justice Felix Frankfurter: What kind of change?
Mr. Edward M. Dangel: Well, you get the change as to whether or not this was presented to him for his signature, or whether or not it was written at the time he said it was written because of questioning of the FBI agents.
Justice Charles E. Whittaker: Well, in any event, it was the statement which was in possession and was demanded and was delivered.
Mr. Edward M. Dangel: It was not delivered.
That's a -- the typewritten copy was not delivered.
Justice Charles E. Whittaker: Well --
Mr. Edward M. Dangel: The --
Justice Charles E. Whittaker: The handwritten copy was.
Mr. Edward M. Dangel: Yes, that's right, the handwritten copy.
Justice Charles E. Whittaker: And, my difficulty is in seeing that if those were alike, whether you get one copy or a carbon copy --
Mr. Edward M. Dangel: It is --
Justice Charles E. Whittaker: Or --
Mr. Edward M. Dangel: That isn't the my -- I guess I have not made my point clear.
I was trying to make the point that for the Court of Appeals to say that one is the original rather than the other --
Justice Felix Frankfurter: No, but, I mean, if it is.
Mr. Edward M. Dangel: Without any -- without the defendant being able to combat that or in anyway explain it or to know about it seems to me to be depriving of him of something that's of value to him.
For example, on cross-examination, if the defendant could show that this statement which Meierdiercks signed was merely a copy of what had been previously prepared by somebody, and this thing was just put in front of his nose and “here, you sign this,” it would be of great value as to whether he was telling the truth that he had in -- he had this third or fourth interview with an FBI agent and gave the material which the FBI agent wrote down as he went along, or whether it wasn't a -- something already cooked up.
I submit that --
Justice Felix Frankfurter: Well, is this of any --
Mr. Edward M. Dangel: It's true to --
Justice Felix Frankfurter: Can I ask this.
Is it in controversy that he signed something?
Mr. Edward M. Dangel: It's not in -- it's not in con --
Justice Felix Frankfurter: Upon signing something, he made that something here, is that right?
Mr. Edward M. Dangel: That's correct.
Justice Felix Frankfurter: Now, what difference does it make whether he made that something here, that that something which he made was a copy of something that had been typewritten or longhanded?
Mr. Edward M. Dangel: Well, it would make some difference in cross-examination and in value to his testimony as to whether or not he had originated the thought that were in that paper.
Justice Felix Frankfurter: It doesn't make any difference if he had copied it.
Mr. Edward M. Dangel: Well, I s -- well, Your Honor says --
Justice Felix Frankfurter: Unless you say that he was hurshed in signing it, was that in the case?
Mr. Edward M. Dangel: No, it was this in -- this was in the case, that he intended a benefit from signing.
That is to say, he in -- he, very frankly, admitted that he was incarcerated at the time and that he expected that, by cooperating with the FBI, that he would be shown leniency and consideration.
Justice Felix Frankfurter: In other words, he was going to repudiate that when he signed to that extent, is that right?
Mr. Edward M. Dangel: Well, that might be so.
I mean, he -- that's not the direct evidence.
To go along a little further, Ms. Vossler was an important witness.
And Ms. Vossler had written a series of letters to the United States Attorney.
Those letters were not shown to the defendant.
The judge examined them in camera.
And, while he allowed one letter to be introduced or two letters to be introduced, the great bulk of the series of letters were not.
Now, the Court of Appeals has examined those letters and the Court of Appeals says that they were of no material value to the defendant.
The defendant could not use those letters for any impeachment purposes and, consequently, although there was error in not allowing the defendant to have those letters yet that error was harmless.
Now, I submit this all adds -- all adds up to one thing.
The Court of Appeals -- the trial judge, in -- in denying new trial and making his rulings during the trial, he has cited his authority, his -- the Jencks Act and the Jencks decision.
And, in his statements, he has said to the petitioner, “I'm going to give you more than you're entitled,” but he didn't.
He -- it's true that he -- he allowed him to look at the grand jury minutes of Mr. Meierdiercks before Meierdiercks' direct examination was completed.
He allowed him to look at some of the statements of Meierdiercks, those that were introduced in evidence, overnight.
And, the next day, in a 40-minute recess, he allowed him to look at some of the material of Meierdiercks and some of the material of Ms. Vossler.
It's the contention of the petitioner that 3500 is unconstitutional.
It -- at first blush, they were to look as if Congress was attempting to usurp the function of this Court.
It will look, at first blush, as if Congress were trying to dictate what constitutes due process and that Congress was attempting to dictate what should be considered a fair trial when it came to material in its possession which concerned government witnesses.
In the Jencks decision, this Court has empathically said that in-camera examination is condemned.
And, doesn't justice require that an in-camera examination in a criminal case should not exist?
Justice John M. Harlan: You read Jencks as going on a constitutional ground?
Mr. Edward M. Dangel: I beg your pardon?
Justice John M. Harlan: Do you read Jencks as going --
Mr. Edward M. Dangel: No.
Justice John M. Harlan: On a constitutional ground?
Mr. Edward M. Dangel: No, I don't believe that this -- I don't believe that the language spells out exactly constitutional except underlying it.
It seems to me, fairness of trial, decency to a defendant, it seems to me, that's a constitutional ground, but there is no language in there that says this is on a constitutional ground.I don't read it that way.
But, when you get to a criminal trial, the investigation stage ought to be over or pretty near or they've now -- the Government, then, has pointed the finger at the man and said “here, you're the man.
You are guilty of this crime.”
Should a Government, then, conceal from a man, withhold from a man what material there is?
I mean, this is not a question of national security and this is not a question of state secrets.
This is a question of the Government accusing a man of a crime.
It doesn't involve either one of those things.
Haven't we got to the stage now where a discovery is important in a criminal case, pretrial, and otherwise, just as it is in a civil case?
Haven't we changed from what used to be a game of tricks in the trial, as Judge Bazelon calls it, a combat by surprise?
Haven't we got to the point now where a trial is not only to determine the truth but where all truths, not half truths, are told to a defendant, but he is given the availability?
Almost all I have available to him, just as to the Government, whatever material the Government has concerning those witnesses which the Government puts on the stand and said “here, place credence in this man to accuse the other man, and find the other man guilty of a crime.”
Justice Felix Frankfurter: The Government couldn't have the same right of discovery as the stuff when the defendants comes with possession, he could have?
Mr. Edward M. Dangel: Some things, yes, sir, Mr. Justice Frankfurter.
Justice Felix Frankfurter: What?
Mr. Edward M. Dangel: Yes.
If I were tried for arson and I had in my possession in the courtroom a fire insurance policy.
The Government could compel me to produce that policy.
Justice Felix Frankfurter: The Government -- a very able Court of Appeals says the co --we reverse the conviction in which the Government has merely served notice on the defendant to produce the original as the basis of introducing secondary evidence, and that was held, I'm not sure properly, thought broadly, an invasion of the privilege against self-incrimination --
Mr. Edward M. Dangel: Well, I'm --
Justice Felix Frankfurter: Before it.
Mr. Edward M. Dangel: I'm reminded of the Massachusetts case which is -- such an evidence is admissible upon secondary evidence admissible upon the defendant's refusing to produce the policy which was in its possession.
Justice Felix Frankfurter: But -- it is in the federal courts, but I have to point -- the point of that case was that it was made in the presence of the jury --
Mr. Edward M. Dangel: Oh I see.
Justice Felix Frankfurter: And, thereafter, all careful district judges of the United States or careful US Attorneys asked the Court to excuse the jury so they could do it in the absence of the jury.
I'm suggesting the extent to which, from my point of view, very properly, protection is made and this is not -- you can't search, you can't -- your large statement about going after the truth is a large, big statement --
Mr. Edward M. Dangel: I know.
Justice Felix Frankfurter: Isn't it?
Mr. Edward M. Dangel: I know.
The whole truth is what I -- is --
Justice Felix Frankfurter: Yes.
Mr. Edward M. Dangel: Is what it comes down to.
Justice Felix Frankfurter: The whole truth.
Mr. Edward M. Dangel: Yes, and --
Justice Felix Frankfurter: And it isn't what trials are about usually, are they?
Mr. Edward M. Dangel: I beg your pardon?
Justice Felix Frankfurter: That isn't what trials -- that isn't the nature of an adversary proceeding, the whole truth.
Mr. Edward M. Dangel: Well, I -- it ought to be.
Justice Felix Frankfurter: It ought to be, but it --
Mr. Edward M. Dangel: It ought to be.
I just --
Justice Felix Frankfurter: But you're standing in the defendant side, I should say --
Mr. Edward M. Dangel: Well --
Justice Felix Frankfurter: As much -- at least as much as I'm afraid it's done.
Mr. Edward M. Dangel: Well, I -- in a criminal case, however, I should think that anything that's available to the defendant, if it's in the possession of the Government, and that bears upon the credence --
Justice Felix Frankfurter: Including hearsay evidence?
Mr. Edward M. Dangel: Including hearsay evidence in the --
Justice Felix Frankfurter: Although it's not admissible?
Mr. Edward M. Dangel: I'm sorry, but it's of an -- it's of advantage to the defendant in this way, that if the hearsay evidence --
Justice Felix Frankfurter: Evidence -- Prosecutor must give evidence or materials in his possession which, here, the conscientious Prosecutor wouldn't dare to offer in evidence.
Mr. Edward M. Dangel: This --
Justice Felix Frankfurter: Correct?
Mr. Edward M. Dangel: This is a matter of production.
It's not a matter of admissibility and, if the --
Justice Felix Frankfurter: No, but the whole question of the range of impeachment is a question of admissibility.
Mr. Edward M. Dangel: But I -- do you intend the Jencks decision to be confined to impeachment or don't -- do you intend the Jencks --
Justice Felix Frankfurter: Well, we're talking here about impeachment.
All these things are impeachment --
Mr. Edward M. Dangel: I agree that, up to this point, I've heard --
Justice Felix Frankfurter: They're all impeachment.
Mr. Edward M. Dangel: But, I -- I, however --
Justice Felix Frankfurter: If any different considerations apply when it isn't what Judge Swan called the negative aspect of this evidence to which -- toward impeachment?
Mr. Edward M. Dangel: However --
Justice Felix Frankfurter: It's a very different thing if you want to have affirmative evidence to disprove perjury, for instance.
Mr. Edward M. Dangel: Well, first, production, and then, admissibility.
I submit that if there is corroborative evidence in some of those statements, the defendant ought to be entitled to have it, regardless of impeachment.
I'll just finish on the question of unconstitutionality.
The time, this --
Justice Felix Frankfurter: That seems to be relevant.
Mr. Edward M. Dangel: Excuse me.
Justice Felix Frankfurter: I am suggesting that if the Court knows in advance that there are limits to the purposes to which evidence may be important, that it may be a good reason for not calling to it.
Mr. Edward M. Dangel: But this is production.
I tried to draw the distinction between production and admissibility.
I, first, think the defendant sees it, then, the judge passes on it.
That's a different proposition.
Second, I'd like to point out, on unconstitutionality, this statute gives a time when the defendant is going to get these papers.
As you, Mr. Justice Frankfurter, have pointed out, in the middle of a trial you're asked to examine a witness of State.
You're going to keep the jury and going to keep the judge waiting, and you're going to hurry off to give the officer in any room to look over this stuff and, for the first time, determine.
You are being deprived.
The defendant is being deprived of the opportunity of preparing his case properly if you have to wait until that period.
The third thing is the limitation of the papers.
That the witness -- it must be a paper that's signed by him, that's adopted by him, that is in a verbatim transcription.
If that's the situation, then I -- I submit that Congress has attempted to state what is due process and what is a fair trial, and I believe that Congress has gone too far.
Chief Justice Earl Warren: Ms. Rosenberg.
Argument of Beatrice Rosenberg
Ms Beatrice Rosenberg: May it please the Court.
The issue in this case is very much narrower than would appear because of what actually happened on this trial.
Now, let me say just a -- one word about the fact because it, again, said the background of what happened here must be done.
This is a case which the Government's main witness, Meierdiercks, went to Ms. Vossler.
He testified, at the direction of petitioner and offered to buy her leases, certain oil leases that she had.
In the meantime, according to Meierdierck, at the direction of petitioner, some other persons who was never identified also came and fitted up.
So that, eventually, they agreed to about $35 an acre and, presumably, she was going to sell all her leases for $57,000.
Well, the subject came around discussion of her taxes, capital gains on that, and Meierdiercks said, “Well, if you give us 10% down now, cash, this can be handled as if it was profits of an oil company which has a deduction and, so, that will cut down your tax.
But, you must give us this 10% first before the sale.”
As a result of that, Ms. Meierdiercks -- Meierdiercks and Ms. Vossler went to Philadelphia where she backed.
She drew out a certified check for $5700 and gave it to Meierdiercks.
Now, he testified that he, in turn, gave it to petitioner.
The petitioner went to Washington and bought some leases for -- he wasn't present.
He testified that was the arrangement.
The petitioner bought the leases and -- for Ms. Vossler for $500 or $1000 and then got the balance of the certified check in cash, and then, part of that money was given to Meierdiercks.
Now, Ms. Vossler testified as to her dealings with Meierdiercks, but she never saw petitioner.She never identified him.
All that she could do was corroborate Meierdiercks as to her testimony -- as to his dealings with her.
Justice Charles E. Whittaker: When you say corroborate, do you mean not to tell what were the durations that she had to find?
Ms Beatrice Rosenberg: That's right, but they were corroborative of his version of what he did.
That's all I meant by that.
Now, that was basically the picture and, at the first trial, the Court had examined Meierdiercks' grand jury testimony and statement to the FBI and had said there was one item that it thought significant to the defense.
It didn't find anything else contradictory.
That was before Jencks.
It went up on appeal.
By that time, the Jencks decision had come down and the Court of Appeals reversed.
Then, this case came on for retrial at the time, as the statute had been passed, but there was this reversal of this case.
When it came up, there was, the petitioner said, a pretrial demand which was denied on the ground that Jencks didn't require in the statute for a bad pretrial production.
The judge said that it was clear that Meierdiercks would be called.
That the Government, as he recalled, the case -- couldn't possibly have a case without it and, therefore, he would arrange to have both the grand jury minutes and the sworn statement of Meierdiercks turned over to the defense.
At the conclusion of the first day of trial, which was not literally within the statute because Meierdiercks had not completed his direct testimony, but it was felt that, since he was such an important witness and known to be such, that would do it.
And, this was done, and then, what happened appears in the record at page 47, a little bit later.
The defense attorney said “as I remember the first trial, Meierdiercks testified that he was interviewed several times by the FBI, but all the Government turned over to me is one signed statement.”
And, the United States Attorney said “now, this is a situation.
We do have reports of -- or summary of interviews in addition to the signed statement.
And, as we read the statute, the defense is not entitled to that.”
That was the United States Attorney's position, but what the Court said was “you had better turn them over to me and I will look at them, and I will decide whether I think the defense is entitled to them.”
At this point, you see, the United States Attorney had taken position that all he had to turn over was a signed statement.
The Court had said “I want to see the summary.”
At this point, the United States Attorney turned over its file and the Court went through it, and then, after doing that, the Court turned over to the defendant in this case the summa -- the FBI summary of its very first interview with Meierdiercks, that's C4.
And then, it turned over -- it said -- the Court's letter, it said R70-71, and it's printed on page 13 of our brief.
The Court also turned over a note that had been added to the copy of the signed statement.
The Court said, when it turned it over, “I have had the FBI report dated July 12, that's the date of the signed statement, marked C4.
This report contains a copy of the statement of May 12 -- I'm sorry, May 12, which I understand has been delivered to you, and then, it has the following materials” and it turned over the note that had been put on the copy, which was an additional fact recalled by Meierdiercks.
And, it did not turn over certain other documents in the file.
Those -- it's sealed.
It's perfectly clear that the Court did turn over the summary of interviews with Meierdiercks.
What was not turned over is described by the Court of Appeals in its opinion, we printed that on page 14 of our brief, that one of the documents contained no reference to, much less the texts of any summation, text or any summation of anything said by either witness.
Two were office memoranda concerning the progress of a then-pending prosecution against Meierdiercks.
Another is a physical description of Meierdiercks.
Another is an unsuccessful search of certain names on hotel registries.
Now, the Court also noted that there was an office notation of the fact that Meierdiercks, when arrested, had denied all implications in the crime.
But, the inter -- the summary of the interview where that was done had been turned over.
So that, in other words, what the Court of Appeals found was that, after Meierdiercks, everything had been turned over except material that was in no sense attributable to Meierdiercks, in no sense whatsoever, except insofar as there was a copy attached to that report of the statement -- of the longhand statement which we have sought.
Now, as to Ms. Vossler, she, as I say, never identified petitioner.
She was merely the victim of this and she dealt only with Meierdiercks and with a man named Mr. Rice who was never identified.
She never saw petitioner.
She didn't name him.
As to her, the Court delivered -- the Government delivered to the Court immediately and turned over a report which she had signed, which gave a detailed statement of what had occurred in January.
It also turned over certain other summary which were detailed that Ms. Vossler has applied, including then, like her speculation as to how the defendant might possibly have gotten her name, in which she named an individual who never was shown to have any significance of the crime and in which she -- and which happened also to contain facts that she hadn't identified certain other individuals.
The Court turned all that over nevertheless, and then, he said “the United States Attorney has also turned over to me,” because the United States Attorney had turned over his file in view of this dispute as to what should be done, “certain letters and I will look at those letters, and I'll see if they had anything to do with the case.”
And, so, he went through that group of letters and turned over two which are C13 and C14, which the defense has seen, which have some mention of the case.
They were letters written after Ms. Vossler had testified at the first trial.
But, the Court of Appeals found that the Court didn't turnover, and which the Court of Appeals thought should have been turned over, were the letters which was described by the Court of Appeals as follows.
And that's at page 16 of our brief, 96 of the record.
A letter to the Prosecutor by Ms. Vossler just before the second trial of the case in which she expressed concern that the lack of time had made her recollection of details hazy, so that, she would have to rely upon her previously detailed statement to refresh her memory.
Now, this was written by Ms. Vossler and, in the very broadest, it may have related to her testimony.
But, it had absolutely no -- this is the only statement that had anything possibly to do with the case.
And, it is, I think, seriously questionable whether this can be said to relate to the subject matter of her testimony, but this is the sole iss -- the sole document which the Court of Appeals found among the sealed exhibits which could possibly have been said to be relevant insofar as they were not duplicated.
And, as to that, this is what the defense said about what they wanted to do with the report that they got, and this is at page 64 of the record.
The question was -- the defense had asked for more time to study the reports of Ms. Vossler, and the question was, well, the Court said “do you de -- intend to deny that these things happened?”
And, trial counsel said “may it please the Court, we are not denying the allegation that Ms. Vossler is making from the stand, not in the least, but there are certain things that she has not testified to that are contained in these other reports.
There are certain items which we must assume are as truthful as the statement she is making here, and we want to get all this in the record,” and that's what the Court -- that's what defense counsel did.
The transcript which hasn't been printed shows that he had her read her signed statement and had her read pages of these -- all reports to refresh her recollection so she could give details.
So that, the failure to produce even if, since time is going short, it could possibly be deemed the statement, the failure to produce this one letter saying that her recollection was hazy can't be considered prejudicial error in view of the fact that whole statement of the defense was “we want to use these statements because” -- at one point, he had said, “we want to use these statements to get in this material which she hasn't testified to,” and that brings me to the question of harmless error in relation to these problems.
This Court, in the Kotteakos case, went through the whole history of the harmless error statute which, as to criminal cases, is embodied in Rule 52.
And, we -- there is one sentence of it that I think summarizes what that whole history said, and that is that the object of the statute was simple to substitute judgment for automatic application of rules, to preserve review as a check upon arbitrary action and essential unfairness in trial but, at the same time, to make the process perform that function without giving men, fairly convicted, the multiplicity of loopholes which any highly rigid and minutely detailed scheme of errors, especially in relation to procedure, will engender and reflect in a printed record.
Now, this, as the Court went on to the say in Kotteakos, is easier to say than to apply.
But it seems to me, the important thing is that it does involve judgment and, so, it can't be said that just because we don't know what the defense might have done with something if, in the judgment of the whole case, whatever the defense would have done with it, it really has no significant relation to the case, there must be judgment.
And, in this case, as it happens, we don't even have to speculate about what the defense would have done.
The defense said “what we want to do, we know Ms. Vossler is telling the truth.”
They repeated that in argument to the jury.
They said “we're not denying Ms. Vossler is telling the truth, but she didn't implicate petitioner.”
They said “what we want to do with these statements is to put in the fact that she forgotten.”
Then, on that basis, it can't be said that the fact that they didn't have a letter which takes it -- isn't really a statement in any sense of the word, but which merely reflects the fact that, in time, her memory had gotten somewhat hazy, something the defense absolutely knew and relied upon to get in material which is only very remotely relevant.
In view of that fact, it is clear in this case, it seems to me, that judgment -- there's hardly judgment involved.
But, even in a somewhat other type of case, it does become necessary to look at possible errors, if there could be, in relation to the whole case and that there cannot be any kind of an automatic rule saying, merely because we do not what a defense might have done --
Justice Potter Stewart: Ms. Rosenberg, assuming that this letter was a statement, as defined in Subparagraph (e) of the statue, in passing that question, assuming it was such a statement, aren't we dealing here with a statute enacted by Congress which imposes an absolute duty upon a district judge?
It speaks in terms that the Court shall, on motion, of the defendant or the United States to produce and the Court dis -- the Court shall order it to be delivered directly to the defendant.
In other words, you are making a -- it may be a very valid argument, but shouldn't it have been addressed to Congress before it enacted to this statute which imposes an absolute duty and allows the Court no discretion at all, if it is a statement within Subparagraph (e)?
Ms Beatrice Rosenberg: Well, Your Honor, I don't think that even a violation of constitutional rights or a statutory right that it's less open in Kotteakos but, nevertheless, for example, let's take a motion to suppress which should have been granted as to, let's say, two grains of narcotics, a theoretical case.
When one can't cover those two grains and 42 other grains, which are completely proofed, that is, as I read the Kotteakos decision and the history which it embodied, let me say that the Kotteakos decision does leave open the question of, possibly, a constitutional or statutory right.
But, if you read the history they had set forth and what Congress is trying to do and what, in a sense, the appellate function is, it seems to me that even so, even if it's a constitutional right, ther -- it doesn't mean that an appellate court is still not automatically, just finding that, required to reverse.
No matter how insignificant the error, no matter how unimportant the witness or, as in this case, in a situation where we know that what the defense was trying to do was to improve her recollection rather than show that it was hazy.
And, it seems to me that, therefore, there has to be judgment.
Now, there are certain things, of course, that change the judgment.
If -- if you're dealing with something like a confession, and that's the example the Kotteakos case gives, there is something the -- there can always be a doubt if you don't have the defending admitting -- the defendant admitting it himself.
Therefore, the courts have said a confession, by and large, is so inherently difficult, that no matter how great the proof, we will reverse if we find the confession was not properly given.
But, that's a very different thing from saying that this witness or, in some of the other cases, where you have a situation where, if that material was used to the ultimate reach that any possible person could reach it, even so, it simply really didn't go to the issues in the case.
There is no doubt about the fact that where you have room for doubt, room for difficulty, it's one thing.
But, here, you have a case of a judge who did as he said, “lean over backwards.”
There isn't any question in the world that if he thought this letter would have been the slightest bit useful to the defendant, he would have handed it over.
But that, in view of all that they had and in view of the little that was not given to them which, as I say in this case, we know that they didn't intend to use then, it seems to me, an appellate court would not be doing justice if it reversed on such ground.
There's one other topic that I think I should cover because it wasn't reached and it was raised to enact this matter of pretrial discovery.
Jencks didn't involve pretrial discovery.
Justice Felix Frankfurter: Jencks wasn't (Inaudible)
Ms Beatrice Rosenberg: Well, it wasn't raised in petition for certiorari.
It's here only in the sense that the question on which this Court granted certiorari includes a question where the Jencks is a rule of mere procedure or involved a defendant's constitutional right.
And, apparently, the petitioner has said that constitutional rights include the right to pretrial discovery.
I was about to say that in the Government's view, this question is not properly here because it was not raised.
And, in turn, it was not argued in petition for certiorari.
I can also say that, it seems to me, the language could not be clearer.
And the legislative history just confirmed the absolute clearness of the congressional decision that these, according to statements that are involved in this legislation, shall not be produced until after the witness has testified.
Now, of course, it is true that Rule 16 and Rule 17, as interpreted by this Court in the Bowman Dairy case, reached documents of another kind that don't involve statements by the witnesses but, as the statements of government witnesses.
The statute and the legislative history is decisive that Congress made the decision that those should not be produced until trial, that they should not be produced pretrial.
And, it seems to me, clearly a subject matter on which Congress had the right to legislate because the right to get this material pretrial was not known before.
And it was the subject of controversy at the District Court level just in a sense, it was a -- something just beginning to be talked about before the statute was passed, and then, Congress made a definite decision between two conflicting points of view on that issue and decided that these should be produced at the trial.