BRADY v. MARYLAND

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Argument of E. Clinton Bamberger, Jr.

Chief Justice Earl Warren: Number 490, John L. Brady, petitioner versus Maryland.

Mr. Bamberger.

Mr. E. Clinton Bamberger, Jr.: Mr. Chief Justice, may it please the Court.

This was an appeal more from a mandate of the Court of Appeals, and from its decision.

The Court of Appeals of Maryland agreed with the Petitioner's contention in that Court that he had been denied due process when the prosecutor withheld a confession, which the petitioner's accomplice had made to the prosecuting authorities, to the police.

But having agreed that due process of law had been denied to the petitioner, the Court of Appeals then by its mandate, respected the relief to a new trial on the question of punishment only.

It did not disturb the verdict of guilt, the verdict of guilt of murder in first -- of murder in the first degree.

And the Court of Appeals would by its mandate send the case back to the Trial Court for the plaintiff, if he would so elect, to have a trial before a jury with guilt already determined and only for the purpose of determining whether the jury would say he is guilty without capital punishment and so respect the court's power to impose capital punishment or merely say guilty and leave the court free to impose capital punishment or to sentence to imprisonment for life.

One fact, peculiar to this case, peculiar to Maryland and I think also to Indiana, but at the base of this case to which I would direct the Court's attention, is that in Maryland the jury in a criminal case is the judge of the law as well as the judge of the fact.

And the Court's instructions to a jury in a criminal case in Maryland are advisory only, not binding on the jury, and the words of the Court of Appeals go to the jury merely as a means of enlightenment.

Justice Potter Stewart: If that were not true would you have any case at all?

Mr. E. Clinton Bamberger, Jr.: Yes, sir I think I have a case, but I think I will have a more difficult case.

I think then we would have a more basic consideration of whether the depravation of the constitutional right is the violation of such a thing so sacred that we are not going to leave any Appellate Court to try to sift out what the affect of this might be.

Justice Potter Stewart: But under the laws, it's understood by lawyers if not by juries in Maryland, it's clear that this man was guilty of the first degree murder, isn't it?

Mr. E. Clinton Bamberger, Jr.: Yes, sir.

I --

Justice Potter Stewart: He had murdered.

He was participating in the – what was it, a robbery?

Mr. E. Clinton Bamberger, Jr.: He was participating in a robbery and there was homicide in the course of the robbery, and if the jury found those facts and they were -- some of them were denied by him in some respects and there was a contention made on appeal that the robbery had been completed before the homicide occurred, but there certainly were facts from which the jury could very easily find, aside from this confession, could very easily find that he had -- it was a felony murder and under binding instruction would be guilty.

What had happened here was that a man named Brooks was murdered in the course of a robbery.

The petitioner, Brady and his companion Boblit were arrested several days later.

The petitioner was arrested first.

He had fled to Cuba and then had returned, surrendered himself and was return to the Federal Bureau of Investigation Office in Miami.

A day after that, as a result of some statements made by the petitioner in Florida, his companion Boblit was arrested in Maryland.

Now statements were taken from both of these men.

Of course the important statements are the first four statements taken from the Petitioner's companion, Boblit.

In each of those four statements, Boblit said, I didn't commit the homicide, I didn't commit the killing, Brady did it.

But after Boblit knew that the petitioner was in the custody of the police and after the police in Maryland had taken some statements from the petitioner, the police went to Boblit, the companion and they said, there are some discrepancies in these first four stories, which you have given us.

Now he knows the police speak of discrepancies, he knows his companion is in the same jail house and he now makes a fifth statement, and in this fifth statement he, Boblit, admits that not Brady, not the petitioner, but he Boblit was the person who actually committed the killing.

And one other significant thing about this fifth statement is that at the end of it, when he was asked to sign it, he refused to sign it, although he had signed the first four statements.

These two men had separate counsels.

In the course of preparing for trial, counsel for this petitioner asked the prosecutor for copies of the statements, not only made by the petitioner, but also the statements made by Boblit.

The prosecutor gave to counsel for the petitioner only the first four statements made by Boblit.

The four statements in which Boblit said, I didn't do it, the petitioner here Brady did it.

He did not, the prosecutor did not give to the petitioner's counsel, nor inform the petitioner's council of the existence of the fifth unsigned statement, which at least in the one detail, the fact that Boblit, not the petitioner was the actual murderer corroborated the petitioner's defense.

Justice Byron R. White: May I ask you this?

Mr. E. Clinton Bamberger, Jr.: Yes sir.

Justice Byron R. White: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: I think the importance of it for this argument Your Honor is that on these facts --

Justice Byron R. White: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Yes, I think it would raise the same question and --

Justice Byron R. White: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: I don't know that it adds anything, but I did want to set the chronology, that the withholding occurred prior to this petitioner's trial, prior to the time when a jury found that he was guilty of first degree murder and my argument on the denial of due process is that when the Court of Appeals found that this withholding denied due process, that everything that happened from that point on was unfair, that this denial vitiates all that happened, at least all that happened after that and in some circumstances could even affect things that happened before.

But here was a man who was deprived of what the Court agrees he was entitled too, prior to the time of his trial of guilt, and the Court of Appeals doesn't put him back there. They only put him back to a point after the jury has found him guilty.

Now, if -- as Mr. Justice Stewart --

Justice Byron R. White: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Yes, sir but I --

Justice Byron R. White: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: And this is particularly true in Maryland.

This, if you had as in California a system where there are the two processes, the process of finding guilt and the sentencing process, and if as in -- if this case was in California, I would be hard put to make the arguments that I make here, because you have two separate processes, the process of finding guilt and the process of sentencing and you have a jury there bound by the court's instructions on the law.

But this isn't so here and this is also, it's difficult to separate in this case, the argument, the denial of equal protection under the laws and the denial due processes of the law.

But this is where the evil of the -- where the equal protection is denied, because the trial to which Brady was entitled was a trial with this information, and the Court of Appeals has said he should have had this when he asked for it.

Before a jury with the right, not just the power, but the right to judge the law and the fact, and a jury with the right and the power to find him the guilty of first degree murder, guilty of murder or guilty of first degree murder but without capital punishment, guilty of murder in the second degree, guilty of manslaughter or acquitted, and this is not the trial he had.

This is the trial that the Court of Appeals said he ought to have.

It's the trial that every other defendant accused in similar circumstances in Maryland will have and then finally it's the trial which the mandate of the Court of Appeals said he isn't going to have and he'll never have.

Justice John M. Harlan: Supposing he had, had -- Brady had, had this statement before his trial, would it have been admissible at the trial on the issue of guilt?

Mr. E. Clinton Bamberger, Jr.: I think several questions would have arisen, Your Honor.

Yes, I think it would have been admissible on the issue of guilt, because when the jury is judging the law, they could well consider that in our view of the law, the man who pulls the trigger is guilty of first degree murder and appellant --

Justice John M. Harlan: In other words under your law jury can really become a legislature ad hoc and say we don't like this going in your business, and we won't apply it to anybody who didn't pull the trigger, that's about -- I gather that's --

Mr. E. Clinton Bamberger, Jr.: They're a legislature ad hoc Mr. Justice Harlan or a judge ad hoc?

They --

Justice John M. Harlan: More of a legislature I would say --

Justice Byron R. White: Did the Supreme Court in here ask the Court to rule – wasn't it admissible on the issue of guilt and only -- it ruled that only to the punishment?

Mr. E. Clinton Bamberger, Jr.: They didn't rule that it wasn't admissible on the issue of guilt, they said it's relevant only on the issue of punishment, but that's where I say that is an error on this one.

Justice Byron R. White: Do have to disagree with your own court [Inaudible] that Mr Justice Harlan was asking?

Mr. E. Clinton Bamberger, Jr.: Yes sir, except that I -- it seems to me they can say it's admissible on the question of the punishment without necessarily saying it's not admissible on the question here.

Justice William J. Brennan: Well tell me this Mr. Bamberger, the lawyer can expect instructions that some lesser offense might find him guilty of some lesser offense?

Mr. E. Clinton Bamberger, Jr.: Yes, sir the --

Justice William J. Brennan: I take it -- if that's so I take it the exclusion of this testimony then might indeed be prejudicial, might it not, under your curious system of jury, judge, the law?

In fact, they might have believed that where they totally could find guilt of a lesser offense?

Mr. E. Clinton Bamberger, Jr.: They were instructed at page 42 of the record that they could find the Petitioner guilty of murder in the first degree without any restrictions on the punishment, guilty of murder in the first degree without capital punishment, murder in the second degree, manslaughter, it's at page 44 of the record, the first full paragraph, beginning in the middle of the page, five possible verdicts, second degree manslaughter and equivalent.

Justice Byron R. White: Don't we have to disagree with your short statement as to the admissibility of this evidence?

That should be [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Yes, sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Well I have to see the --

Justice Arthur J. Goldberg: Page 70 of the record [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Yes Your Honor, I was thinking of the Court's restrictive statement on the -- at the end and I don't think --

Justice Arthur J. Goldberg: Under these circumstances [Inaudible]

Mr. E. Clinton Bamberger, Jr.: No, sir I think you really got it.

In the one -- in one similar case which had come before the Court of Appeals, not by the same route, which this case took; this case came to the Court of Appeals of Maryland by its post conviction proceeding, but in a prior decision of the Court of Appeals of Maryland of Day versus State, two defendants were indicted for a felonious homicide.

They asked for a severance.

The severance was denied.

Incriminating statements by each of them were admitted in evidence.

The jury was instructed, well disregard what A says that incriminates B, and vice versa.

This went to the Court of Appeals, on the appeal from the Trial Court's denial of the motion of severance and the argument was made that it makes no difference because both are involved in the felony murder and therefore both are guilty of first degree murder, but the Court of Appeals recognized in that case that the jury is the judge of the law.

They recognized also that even through this evidence looking at it as a lawyer, purely as a lawyer, even though this evidence simply most directly effected the punishment, yet the failure of the court to grant a severance in this case amounted to such a denial of due process, that the cases were remanded for separate trials on both the issues of guilt and punishment.

Justice William J. Brennan: Mr. Bamberger, may I ask this looking at page 52?

What was meant by the court in that opening sentence of the first full paragraph?

The appellant's sole claim of prejudice goes to the “punishment?”

Is this is a suggestion that the only thing before the Court raised by the appellant's right, and should not be that but only right?

Mr. E. Clinton Bamberger, Jr.: Yes sir and the petition -- this came up on a post conviction proceeding.

The petition for post conviction release sought a new trial, set aside both the verdict of guilt and the sentence in an entire new trial.

The appellant's argument I think was directed very strongly towards the fact that this evidence did go to the question of punishment.

And in the appellant's brief in the Court of Appeals, I did make statements that the appellant was guilty of first degree murder.

I was there really directing myself to an argument that even though it only goes to the question of punishment, it still amounts to a denial of a constitutional right.

The question of what kind of relief ought to be afforded never came up, until at the very close of argument.

As a matter of fact I had finished rebuttal argument and was at least moving to the chair, when the Chief Judge Burns of the Court said to me Mr. Bamberger, if we agree with you that due process has been denied, what relief would you want, and my response during then was that we were entitled to a whole new trial both on the question of guilt and of punishment.

I think that what this sentence means is that my brief and my oral argument in the Court certainly was particularly directed to the fact that the evidence did effect only punishment, but then regardless of that, in a matter to --

Justice William J. Brennan: Well could you see what I'm reaching for?

Mr. E. Clinton Bamberger, Jr.: Yes sir.

Justice William J. Brennan: Is it possible that counsel at this -- a statement by a Court of Appeals that the only issue before that raised by the appellant goes to punishment and not to the guilt?

Mr. E. Clinton Bamberger, Jr.: Well, that would not -- that is not in accordance with the record because the post conviction petition sought a new trial, and to set aside the verdict of guilt and the sentence and a new trial, the relief -- this was a relief prayed in that petition and when it was once raised by the court, Chief Justice Burns specifically said, you just want a new trial of punishment or a new trial of guilt too and I said we think we are entitled to both.

Justice Tom C. Clark: I thought you had said that there would be no offense of [Inaudible]

Mr. E. Clinton Bamberger, Jr.: The Court of Appeals of Maryland said there could be no verdict.

Justice Tom C. Clark: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: I think there is language in their opinion which suggests that, but I challenge the correctness of that because the jury could have found this man guilty of something less than first degree murder or could have acquitted him and the lower court's instructions recognized that and the state didn't object to those instructions.

Justice Tom C. Clark: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: The Court of Appeals, yes sir I think they did.

Justice Tom C. Clark: As a matter of law?

Mr. E. Clinton Bamberger, Jr.: As a matter of law.

Justice William J. Brennan: Well there again I take it felony murder is an offense under your law?

Mr. E. Clinton Bamberger, Jr.: Yes sir.

Justice William J. Brennan: And yet I gather in the trial of the felony murder, the strange business of jury being judge of law and fact, it may nevertheless where the state's proofs would support a conviction of felony murder, because it is the judge of law and fact, nevertheless return a verdict which is not for felony murder.

Mr. E. Clinton Bamberger, Jr.: Yes sir.

Justice William J. Brennan: Is that right?

Mr. E. Clinton Bamberger, Jr.: Yes sir.

Justice John M. Harlan: If the statue had said I suppose, this is a felony murder, but the jury if it wishes can confine felony murders only to people who pull the trigger.

Mr. E. Clinton Bamberger, Jr.: Yes sir.

Justice Hugo L. Black: That's about what a general verdict in a murder case means anyhow, isn't it, [Inaudible] government to appeal.

Mr. E. Clinton Bamberger, Jr.: And there it's a difference between the power and the rights.

Justice Hugo L. Black: Yeah, but the language used is to leave the power there to do it?

Mr. E. Clinton Bamberger, Jr.: Leaves the power there, but in Maryland it is the matter of right too and the court has got to recognize that you --

Justice Hugo L. Black: Legal right as well as a technical right?

Mr. E. Clinton Bamberger, Jr.: Well, yes sir, legal right is enough I think, but he is entitled to that kind of a trial.

He is entitled to a trial regardless of what we may think of this system and this jury.

He was entitled to that kind of a trial with this evidence available to him before that trial began and with the jury entitled to acquit him on this evidence.

Justice John M. Harlan: How many states of the union have got this kind of a statute?

Mr. E. Clinton Bamberger, Jr.: To my knowledge only Maryland and Indiana.

Justice Arthur J. Goldberg: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Yes sir, several --

Justice Arthur J. Goldberg: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Yes sir it has, yes sir it has been suspended.

Justice Arthur J. Goldberg: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: This rule has existed in other states.

In the opinion of this Court in Nelson versus the United States, which is an opinion of some 130 pages, there is a review of the history of this and all of the states.

Justice Arthur J. Goldberg: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Yes, I think principally in the Eastern counties and it still exists in Maryland and in Indiana.

This was not a matter of the record.

There was a bill strongly endorsed by leaders of the Bar as it was once in Illinois, in the current session of the Maryland legislature which I understand has died in a committee.

Justice Potter Stewart: Mr. Bamberger, do I understand that -- then that in every felony murder case it would be hard for the court not to charge on the second degree murder and manslaughter as well as giving you a charge of felony murder?

Mr. E. Clinton Bamberger, Jr.: Yes, sir.

Justice Potter Stewart: And is that the practice universally in -- where the only evidence is that there was murder committed -- the killing in -- while committing a felony and that's the only evidence.

Mr. E. Clinton Bamberger, Jr.: It would at least --

Justice Potter Stewart: Is it still error for the court not to charge on manslaughter or second degree murder?

Mr. E. Clinton Bamberger, Jr.: Yes, so it would at least be error for the Court to confine its instructions to anything less than that.

Justice Potter Stewart: Because I doubt -- as I read this last paragraph of the Maryland Court of Appeals opinion, what it does is -- as I understand it, is to say that the Trial Court did commit error in this case, because this was only a first degree murder case.

Mr. E. Clinton Bamberger, Jr.: To say that the Trial Court's instruction --

Justice Potter Stewart: It doesn't say explicitly so, but it does say that --

Mr. E. Clinton Bamberger, Jr.: No, this is implicit in the Court's opinion.

It had to say that.

Justice Potter Stewart: And isn't that matter of Maryland law not Federal Law, and aren't we bound by what the highest court in a state says is the law of Maryland?

Mr. E. Clinton Bamberger, Jr.: I don't think it's said in those terms in this --

Justice Potter Stewart: No, but implicitly I thought it should be the one.

Mr. E. Clinton Bamberger, Jr.: That--

Chief Justice Earl Warren: Is that a matter of first impression with the Court at this time in this case?

Mr. E. Clinton Bamberger, Jr.: Yes, Your Honor.

Chief Justice Earl Warren: It was?

Mr. E. Clinton Bamberger, Jr.: It was not argued at any point in the --

Chief Justice Earl Warren: It hadn't occurred in any other case prior to that for precise issue?

Mr. E. Clinton Bamberger, Jr.: I don't recall one Mr. Chief Justice.

Chief Justice Earl Warren: Mr. Malton -- Oh Mr. Jamison, excuse me.

Argument of Thomas W. Jamison, Iii

Mr. Thomas W. Jamison, Iii: Mr. Chief Justice, may it please the Court.

One thread follows throughout the proceedings in this case and that is that the defendant, Brady, the appellant here, has consistently and universally admitted that he participated in the robbery, in which Mr. William Brooks was murdered.

During the preparation for the trial of the case in the Circuit Court of Anne Arundel County, Brady's attorney had a conference with the state attorney and in the judge's chambers and also with the counsel for the accomplice named Boblit and it appears on page 26 of the record, Mr. Wolfel, the counsel said, I recall I stated that in view of the fact that they took a jury trial, I wanted mine first, actually the accomplice didn't take a jury trial, then he went on to say and that the case would be limited to penalty for murder in the first degree.

Question; well why would it be limited to that penalty sir?

Answer; because that was absolutely no justification or reason or rhythm or rhyme for killing a man, and both of them were at least engaged in robbery or larceny and so forth.

Justice Potter Stewart: What are you reading from?

Mr. Thomas W. Jamison, Iii: I'm reading from the bottom of page 26 of the record Your Honor.

Justice Potter Stewart: Thank you.

Chief Justice Earl Warren: And who is speaking?

Mr. Thomas W. Jamison, Iii: This was the attorney, who represented Brady at his trial, referring to a conference between the attorney for the co-defendant or the accomplice and the court and the court's chambers.

Discussing his strategy prior to the trial and he says at the bottom of the question number 25 and that the case would be limited to penalty for murder in the first degree.

Over on page 27, there is some further discussion at that point.

Now this was the attitude of counsel before the trial started.

Justice William J. Brennan: Now let me see if I followed that.

I remember under my state practice, it was not where the jury assesses the penalty of death or life imprisonment, and where the recommendation of the jury is binding on the judge and then frequently a case would be tried solely on it, they persuade the jury to bring in life rather than death sentence.

And there would be no legal controversy at all over the question of guilt or innocence.

Now are you suggesting that practice was the way this case was tried, that defense counsel wasn't raising the question of guilt or innocence?

Mr. Thomas W. Jamison, Iii: Your Honor, the case was tried of course under a plea of not guilty, but I do submit that under -- the record as shown in the record here, the case was not really tried on a question of guilt or innocence.

Justice William J. Brennan: But that's what I'm asking?

Mr. Thomas W. Jamison, Iii: That's true.

Justice William J. Brennan: Yes.

Mr. Thomas W. Jamison, Iii: And I think that is supported by a comment made by the Court in its instructions, which appears on page 42 of the record, near the top of the page, where the Court says, I think it's the third sentence, “And the Court feels that even though there has been a confession by a counsel for the defendant, that this [Inaudible] is guilty of murder in the first degree without capital punishment,” the court filled the jury and order and so forth.

Justice William J. Brennan: Well I -- to me what that's saying is the judge says he doesn't care how the defense counsel wants to try it, and he had to instruct the jury that they might bring any one of five verdicts?

Mr. Thomas W. Jamison, Iii: That's what the Court is saying Your Honor, but I think that what we have to keep in mind is that there has been really no controversy about guilt in this case.

There never has been any controversy about it, and the statement of the accomplice, of which Brady was deprived, his counsel was deprived before the trial, and which the Court of Appeals of Maryland did say that deprived him due process of law, this statement beginning on page 39, of the record, clearly does not exonerate him from guilt of first degree murder.

There is nothing in the statement, which exonerates him from guilt of felony murder.

It admits that Brady was the one who knew Mr. Brooks, that Brady was the one who said we've got kill Mr. Brooks and Brady was the one who said we've got the strangle Mr. Brooks.

The only thing in the statement, which has any -- which provides any support for the appellant here is the admission by Boblit.

That he, Boblit, actually strangled the decedent and it is the state's position that this has no bearing whatsoever on the question of guilt or innocence, but only on the question of punishment.

Justice John M. Harlan: Well if this had been offered, if this statement had been available and had been offered at the trial of Brady, would it have been admissible for all purposes, or let me put it this way, could the state have objected to its general admissibility and said it should be limited only to the question of punishment in view of this record?

Mr. Thomas W. Jamison, Iii: Your Honor, I think in view of the opinion of the Court of Appeals, in this case there is considerable doubt that it would have been ruled inadmissible.

It may very well have been decided to be admissible.

Justice John M. Harlan: For all purposes?

Mr. Thomas W. Jamison, Iii: It might have been You Honor.

The Court in my -- as I read this opinion is not entirely clear that it could have been admitted.

I think however that probably the opinion says it could have been, what the Court says is we think that Boblit's undisclosed confession might have been usable under any one of the three and it didn't say it would have been usable, but it might have said if it had so desired.

Justice John M. Harlan: There is no law outside of this opinion in Maryland on this kind of a situation?

Mr. Thomas W. Jamison, Iii: Yes, Your Honor, there are a number of cases, and the one which the court relies upon most in its opinion is the Thomas case.

Justice John M. Harlan: Thomas, yeah.

Mr. Thomas W. Jamison, Iii: Which would indicate, that for certain purposes this could have been admitted.

Justice John M. Harlan: For all purposes?

Mr. Thomas W. Jamison, Iii: Well, I think that's true.

Justice John M. Harlan: I think so, the way I read, it could be.

Mr. Thomas W. Jamison, Iii: But I do think that there is no doubt about the fact it could have been used even if it wasn't admitted.

It might have been used for one purpose or another without being offered in evidence.

Justice William J. Brennan: Did Boblit testify at the trial?

Mr. Thomas W. Jamison, Iii: Boblit did not testify at Brady's trial Your Honor, no.

Justice John M. Harlan: Could I ask you another question on this -- these instructions as to less than first degree murder, less than felony murder.

Had the Court refused to give those instructions on this record, would that have been a reversible error under your law?

Mr. Thomas W. Jamison, Iii: Under error of law, the Court must give advisory instructions when requested to do so, that's the first one.

Now, as I understand the question, it is -- if these specific instructions had been requested and the Court had refused to grant these specific instructions, would that have been error?

Justice John M. Harlan: Well you are limiting it a little bit.

What I'm putting to you is this.

Supposing the petitioner's counsel had said I want instructions on second degree murder, et cetera, manslaughter, the judge said no, because the evidence in this record is uncontroverted, that this man was guilty of a felony murder and therefore a verdict of that kind would be unsupported by evidence, just like we had in the Greene case up here.

Would that have been reversible error, to give an instruction, I'm not talking about the specific wording, any instruction would it have been reversible error?

Mr. Thomas W. Jamison, Iii: Your Honor, I did not know of any case in Maryland, which would require the five possible verdict type instructions in a felony murder case.

It is my opinion that the Court could have given an instruction that the jury could find guilt of first degree murder with capital punishment or without capital punishment or not guilty, but as I say, I don't know of any change to that rules specifically on the point.

Now after the trial of the --

Chief Justice Earl Warren: Wasn't there some contention in this case that the murder was committed after the robbery and that therefore it wasn't felony murder?

Mr. Thomas W. Jamison, Iii: That's –

Chief Justice Earl Warren: would that be the reason that he would be entitled to that kind of instruction?

Mr. Thomas W. Jamison, Iii: Well Your Honor, the contention was raised on appeal.

Chief Justice Earl Warren: On appeal?

Mr. Thomas W. Jamison, Iii: On appeal, but I don't think it was seriously pressed at the trial.

Chief Justice Earl Warren: Not at the Trial Court?

Mr. Thomas W. Jamison, Iii: It's not my understanding of the case, Your Honor.

Chief Justice Earl Warren: I see.

Justice Hugo L. Black: Is a matter of out of court confessions made by a third person admissible as an exception to the hearsay rule in Maryland?

Mr. Thomas W. Jamison, Iii: It is now, Your Honor, yes.

Justice Hugo L. Black: In this case or …

Mr. Thomas W. Jamison, Iii: Well, this case, certainly I think I must admit, said so.

It says that an out of Court confession made by a third party is admissible.

Justice Hugo L. Black: Then they do not have to argue that it's unconstitutional for the state to recognize the hearsay rule?

Mr. Thomas W. Jamison, Iii: No Your Honor.

Chief Justice Earl Warren: Would it be admissible against Brady as well as for him?

Mr. Thomas W. Jamison, Iii: Mr. Chief Justice, I don't know of any case in Maryland in which that point has arisen.

I suspect that there might well be a lot of dispute over that question on the part of the defense.

Chief Justice Earl Warren: We will adjourn now Mr. --

Print this transcript Transcript: 

Argument of Thomas W. Jamison, Iii

Chief Justice Earl Warren: - 490, John L. Brady, petitioner versus Maryland.

Mr. Jamison, you may continue your argument.

Mr. Thomas W. Jamison, Iii: Mr. Chief Justice, may it please the Court.

Yesterday before the recess, I had sought to establish two facts which I believe must be considered during the study of this case.

First of all, the statement of the confederate, Boblit, contains nothing, which would exculpate Brady from guilt of first-degree murder under the Maryland felony murder statute.

It merely contains the assertion or the admission that Boblit himself actually strangled the victim, but it places Brady at the scene of the crime as the man who knew Brooks, as the man who said, “We have got to kill Brooks,” as the man who said “We've have got to strangle Brooks.”

Secondly, the attorney representing John Brady determined before the trial even began that the real issue in the trial was not guilt or innocence, but penalty for murder in the first-degree.

In other words, he sought to persuade the jury to bring in a verdict of guilty of first-degree murder without capital punishment.

Now, at the trial of the case, Brady took the stand and again Brady admitted as he had in his statements, which he had given to the police prior to his trial, he again admitted he had participated in the robbery, but denied he had actually committed the homicide.

In his --

Justice Potter Stewart: Mr. Jamison what happens in Maryland if a man pleads guilty to the first-degree murder or doesn't that really happen?

Mr. Thomas W. Jamison, Iii: Mr. Justice Stewart, if a man pleads guilty to first-degree murder then the court would have the option as to whether or not to sentence him to death or to sentence him to life imprisonment.

Justice Potter Stewart: And he doesn't get a jury trial on that punishment?

Mr. Thomas W. Jamison, Iii: He would not have a jury trial.

Justice Potter Stewart: This is a function of a single judge, is that it?

Mr. Thomas W. Jamison, Iii: That's correct Your Honor, it's merely a question of sentence.

The closing argument or at least the -- the closing argument to the jury by a counsel for Brady consisted of a confession of guilt of first-degree murder.

Now when Brady again went to court himself to testify at the post-conviction hearing before the Circuit Court for Anne Arundel County, he again admitted his guilt of first degree murder.

He admitted that he was there and he participated in the robbery.

He admitted the facts which constitute first-degree murder on the statute.

So --

Chief Justice Earl Warren: And also that the murder was committed at the time of the robbery, not later, is that correct, because I did notice some place along the line here where it was contended that the murder was detached from the robbery itself?

Mr. Thomas W. Jamison, Iii: I believe Mr. Chief Justice that point was raised in Brady's appeal from his conviction.

Chief Justice Earl Warren: But not at the trial, I think you answered that yesterday?

Mr. Thomas W. Jamison, Iii: I stand corrected Mr. Chief Justice, Mr. Bamberger reminds me of Boblit's appeal that actually raised that point.

They were tried -- they were argued together, the two appeals were tried under one argument.

Chief Justice Earl Warren: I see and Brady did not raise it at all?

Mr. Thomas W. Jamison, Iii: Apparently not Your Honor.

Chief Justice Earl Warren: Yes.

Mr. Thomas W. Jamison, Iii: But at any rate this point was brought up at the post-conviction hearing.

Now throughout the other proceedings in this case, it had never been controverted that Brady has always admitted his presence at the trial -- at the robbery and his participation in the robbery and I think it is also important to remember that there was a judicial confession in effect at his trial when Brady admitted his presence and his participation.

Now, in view of these facts and the fact that the Court of Appeals in its opinion states that nothing in -- well, this withheld confession this appears on page 52 of the record, nothing in it could have reduced the appellant Brady's offense below murder in the first degree.

Chief Justice Earl Warren: May, I ask you just one more thing before you get into another phase of the case?

On page 26, item 25 that we talked about yesterday somewhat, would you mind telling me when that statement was made by counsel for the defendant and in want context please?

Mr. Thomas W. Jamison, Iii: It was made prior to the trial at a conference in the judge's chambers with counsel for a coconspirator or the confederate and they were discussing various aspects such as we have a jury trial, which defendant will be tried first and so forth and at that time, Counsel for Brady said that his trial would be limited to penalty for murder in the first-degree.

Now, in Maryland, the Constitution provides that the jury is the judge of the law as well as the facts.

This provision has been in the Constitution of Maryland at least since 1867 I think and to my knowledge has never been applied in exactly the way it is sought to be applied in this case, but the Court of Appeals of Maryland in a recent case, Giles versus State said this.

“It is the duty of a jury to decide a case according to the established rules of law.”

In all frankness, I must admit that this statement was made from the other side of the coin, dealing the duty of the jury from the standpoint of the defendant other than the standpoint of the State, but I respectfully submit that the duty of the jury is the same whether it acquits the defendant or convicts him, it is nevertheless the duty of a jury to decide the case according to the established rules of the law, in spite of this constitutional provision.

Otherwise, we would have nothing but chaos.

Justice William J. Brennan: [Inaudible]

Mr. Thomas W. Jamison, Iii: Mr. Justice Brennan, it is the State of Maryland's position that the trial judge charge was an error that he went further than the law required.

Justice William J. Brennan: [Inaudible]

Mr. Thomas W. Jamison, Iii: No prep just whatsoever.

Justice William J. Brennan: [Inaudible]

Mr. Thomas W. Jamison, Iii: Yes Your Honor.

That's exactly what they said, I think in their opinions, what they held in their opinion.

Justice William J. Brennan: [Inaudible]

Mr. Thomas W. Jamison, Iii: Giles was decided after this case and I might say that the Giles case, there is a petition for certiorari pending at the present time.

Justice William J. Brennan: [Inaudible]

Mr. Thomas W. Jamison, Iii: You do.

Justice Hugo L. Black: I don't quite understand, you say that the Constitution says one thing and the law says another.

Mr. Thomas W. Jamison, Iii: No, Mr. Justice Black.

I'm saying that the Court of Appeals has said that it is the duty of a jury to decide a case according to the established rules of law.

Justice Hugo L. Black: But what does the Constitution say?

Mr. Thomas W. Jamison, Iii: The Constitution says, the jury is the judge of the law as one of the fact.

Justice Hugo L. Black: Well, do you think that Constitution is unconstitutional?

Mr. Thomas W. Jamison, Iii: No, I do not.

What I'm saying though is that although the jury has the right to decide the law, they have the duty to decide the law according to their conscience, according to reason, according to their best efforts and not according to some whim or fancy.

They have the same duty to decide the law as the trial judge would have to interpret the law according to their best ability and not to ignore the law, or disregard the law, or twist the law for some purpose or other.

Justice John M. Harlan: What purpose – what effect it would give it to the provision of the Constitution?

[Inaudible]

Mr. Thomas W. Jamison, Iii: That is correct.

Justice John M. Harlan: Is that into your Constitution?

[Inaudible] something duty of the jury, power of the jury to go beyond what it already had [Inaudible]

Mr. Thomas W. Jamison, Iii: It is my opinion that it adds very little to the power of a jury or to the -- what it would ordinarily be the case in other jurisdictions. It maybe that when the constitutional prevision was enacted, the idea was to give a great scope of authority to the jury, but I believe that in view of the two recent cases, the Giles case and the Brady case, the Court of Appeals has indicated that it feels there was a very limited scope to this provision.

Justice Hugo L. Black: Well what you in effect saying is that they have changed your Constitution, isn't it?

Mr. Thomas W. Jamison, Iii: They have construed the Constitution, that all.

Justice Hugo L. Black: It seemed to mean contrary to what it seems to mean on its face?

Mr. Thomas W. Jamison, Iii: I don't believe that is correct.

I think the jury has the right to interpret the law and if it makes a mistake no one can again say it.

Justice William J. Brennan: [Inaudible]

Mr. Thomas W. Jamison, Iii: I think that is the law, now it's true --

Justice Hugo L. Black: Well another thing to find out is that if we ought to go on the basis of your argument that the Constitution said, that it means what it says, that means now, has a less restricted meaning by reason of the recent opinion of the Court?

Mr. Thomas W. Jamison, Iii: Yes I believe that is my position.

I believe that the Court of Appeals has indicated in the Giles case that the constitutional provision is not as broad as it might be thought to be upon reading it.

I think that the jury has a duty to construe the law the same as a judge would construe a law, it was best of its ability and not whimsically.

Justice John M. Harlan: [Inaudible]

Mr. Thomas W. Jamison, Iii: There has been an effort Mr. Justice Harlan, I believe that the current session of the legislature, such a measure was introduced and it was not enacted, I don't know whether its been defeated or whether it's still pending, but I think there was one enacted, I mean introduced.

Justice John M. Harlan: [Inaudible]

Mr. Thomas W. Jamison, Iii: I honestly don't know whether there have been others or not.

Justice Arthur J. Goldberg: [Inaudible]

Justice Hugo L. Black: Well stated bluntly, as I understand it, you are saying the recent rule that the jury is not a judge of the law in fact in Maryland, although the Constitution says it is?

Mr. Thomas W. Jamison, Iii: No Mr. Justice Black, I don't say that.

I'm merely saying that there is not the distinction between the situation in Maryland and situation in other states which would appear on the face of the Maryland Constitution.

The jury is the judge of the law, but they have a duty to judge the law conscientiously in good faith, sincerely and legitimately and not whimsically, and if they do --

Justice Hugo L. Black: What's the remedy if they do not?

Mr. Thomas W. Jamison, Iii: We have no remedy.

If they act according to whim and caprice and acquit the defendant, the defendant is acquitted, and there is no remedy.

They have the power --

Justice Hugo L. Black: Same as the general verdict?

Mr. Thomas W. Jamison, Iii: That is correct.

So they have the power to do this and that cannot be denied, but any jury has the power to do this.

Justice John M. Harlan: But in a case of jury where it is operating under [Inaudible] constitutional provision, there is a presumption [Inaudible]

Mr. Thomas W. Jamison, Iii: I don't think that there is such a presumption under the Maryland law.

Justice William J. Brennan: No, but isn't the [Inaudible] I gather they don't have to be the judge of the law for judgment.

It may be that they were [Inaudible]

Mr. Thomas W. Jamison, Iii: They do not, that is correct.

Justice Byron R. White: You are saying that [Inaudible]

Mr. Thomas W. Jamison, Iii: That is our position exactly.

Justice Byron R. White: [Inaudible]

Mr. Thomas W. Jamison, Iii: That is correct.

Justice Hugo L. Black: You are saying that the Court of Appeals can tell the jury what the law is, but they can't decide what the law is, for themselves.

Mr. Thomas W. Jamison, Iii: I'm saying that they have --

Justice Hugo L. Black: Maybe that's right, but I'm just -- if we have to decide this, I would want very, very, very clear reason myself for saying if the Constitution of Maryland says that the jury shall be the judge of the law and in fact that can be escaped by saying, the judge can be the judge of the law, in fact he can get it covered and that's the law they have to follow, not their own.

Mr. Thomas W. Jamison, Iii: No.

Justice Hugo L. Black: That you need to follow.

You were saying if you are drawing a distinction between that duty and what can do under the constitutional provision.

Do you have that same thing with reference to liable in Maryland?

Mr. Thomas W. Jamison, Iii: To liable?

Justice Hugo L. Black: Yeah, same provision.

Mr. Thomas W. Jamison, Iii: I honestly don't know Mr. Justice Black.

I'm not familiar with laws of Maryland pertaining to liable.

Justice Hugo L. Black: Many states have that and why they've had there I don't understand it, but it remained the law.

It's always been held, they didn't have to follow the judge at all, when they have the duty do it.

They can decide as they saw fit.

I think [Inaudible], I'm not sure.

Mr. Thomas W. Jamison, Iii: I can't help you on that point.

Chief Justice Earl Warren: Mr. Jamison is it customary in Maryland in cases of this kind to instruct -- for the judge when he instructs the jury to tell them that his instructions are only advisory and they may decide the law in anyway that they desire.

Mr. Thomas W. Jamison, Iii: Yes, Mr. Chief Justice, it not only is customary, but I think it's mandatory.

Chief Justice Earl Warren: Well how do you reconcile that with what you just argued to us?

Mr. Thomas W. Jamison, Iii: Well I'm afraid I'm not getting my point really across as well I would like.

It's a very thin distinction, I admit, but the jury does have the right under the constitution to interpret the law, to find the law if you like.

All I'm saying is they've got to do it honestly, conscientiously, intelligently to the -- according to their best efforts and they cannot do it according to whim and if they do it according to the whim, then they are violating their duty to the state, to the people.

Now if they do that, if they violate their duty there is no way that anybody can do anything about it.

Justice John M. Harlan: [Inaudible]accept it the way it should –-

Chief Justice Earl Warren: Aren't you confusing power and duty?

Mr. Thomas W. Jamison, Iii: I don't believe I am.

I think I am merely relying upon what the Court of Appeals has said in the Giles case.

And although they said it there in reference to the duty of the jury that it owes to the defendant.

I think the same duty is owed to the state.

Unknown Speaker: [Inaudible]

Mr. Thomas W. Jamison, Iii: That is exactly our position.

That no jury acting in good faith could possibly under the facts of this peculiar case, could possibly have rendered any verdict except guilty of first degree murder or not guilty of anything at all.

But since there was a judicial confession in Court by the defendant, the jury really could not bring in a verdict of not guilty.

However, the Court -- the trial judge was entitled at the trial to instruct the jury that they could bring in a verdict of guilty of first degree murder, guilty of first degree murder without capital punishment or not guilty.

On the facts of the record as it stands now however, in view of all the facts and the way in which the trial was conducted, it is our position that the defendant was not denied due process of law by being given a new trial on the issue of punishment only.

Since this is the sole point to which his claim of prejudice relates.

Justice John M. Harlan: Well I think you said yesterday that this confession [Inaudible]

Mr. Thomas W. Jamison, Iii: It would have been, that is correct.

Justice John M. Harlan: And that is not getting [Inaudible] would have done had the government said these people what the court had said they should have done and [Inaudible]

Mr. Thomas W. Jamison, Iii: There is no doubt about the fact that he is not -- now he had not had this confession or this statement of Boblit before a jury before he was tried.

Justice John M. Harlan: And he would have it if the state had not done what it did [Inaudible] if it had not been done, he would have had [Inaudible] at his trail [Inaudible]

Mr. Thomas W. Jamison, Iii: This is correct.

Our position on that is this, that there was no prejudice, because there is nothing in the statement which could have reduced the offense below first degree murder.

Justice John M. Harlan: [Inaudible] jury found murder it seems to me the typical case where the jury is going to exercise their power under the law [Inaudible]

Mr. Thomas W. Jamison, Iii: But there is nothing in the statement which could possibly lead the jury to believe he was as an innocent bystander.

The statement says that it was Brady's idea to kill him.

It was Brady's idea to strangle him.

Now --

Justice Potter Stewart: And wanted to shoot him and Brady wanted to strangle him.

Mr. Thomas W. Jamison, Iii: That's exactly, yes.

So the jury couldn't possibly get any sympathy for the man out of this statement.

Unknown Speaker: [Inaudible]

Justice Hugo L. Black: [Inaudible] not to say it is harmless error?

Mr. Thomas W. Jamison, Iii: I think it was harmless error from the standpoint of guilt or innocence, but not from the standpoint of punishment.

It might have persuaded the jury to recommend without capital punishment, and that is exactly the relief that he has been granted by the Court of Appeals.

Justice Hugo L. Black: The vagaries of a jury's reasoning are beyond human understanding when you begin to try to hold that something would have been -- would have done him no good [Inaudible], but it is difficult.

Mr. Thomas W. Jamison, Iii: Yes it is difficult.

Justice Potter Stewart: Does the jury rule on the admissibility of evidence?

Mr. Thomas W. Jamison, Iii: No Mr. Justice Stewart, if the jury in Maryland does not rule on the constitutionality of a statute, it does not rule on the admissibility of evidence and in the first instance it does not rule on the voluntariness of a confession, although after the judge plans a confession to be voluntary, then the jury in turn is on the point.

Justice Potter Stewart: [Inaudible]

Mr. Thomas W. Jamison, Iii: Yes.

Justice Potter Stewart: Is there ever any such thing as a directed verdict or a judgment notwithstanding the verdict in Maryland practice?

Mr. Thomas W. Jamison, Iii: Yes, there certainly is.

Justice Potter Stewart: In civil litigation?

Mr. Thomas W. Jamison, Iii: Yes, that's correct, but the defendant in a criminal case has a right to move for a judgment of acquittal at the conclusion of the state's case.

Justice Potter Stewart: Yeah, in that case the judge takes it away from the jury if he grants the motion.

Mr. Thomas W. Jamison, Iii: That's correct.

Justice William J. Brennan: [Inaudible]

Mr. Thomas W. Jamison, Iii: Well, I never heard it done personally, but I have heard that there have been times when a judge indicated dissatisfaction with the verdict, but this has no real legal significance.

Argument of E. Clinton Bamberger, Jr.

Mr. E. Clinton Bamberger, Jr.: In one part of the state's argument the state assumes that the evidence --

Chief Justice Earl Warren: Mr. Bamberger before you get your main argument I'd like to ask you this question.

In the event we were to affirm this judgment.

In what respect would you be in a different position?

If you go back on the question of punishment, then you were at the beginning of the trial and the reason I ask you that question is because of what occurred here on page 26 of the record and I think you were testifying at the time.

Mr. E. Clinton Bamberger, Jr.: No sir I was not a Trial Counsel.

Chief Justice Earl Warren: Oh, you were not, so counsel --

Mr. E. Clinton Bamberger, Jr.: Yeah.

Chief Justice Earl Warren: And it starts this way.

Now do you remember participating in the conference prior to Brady's trial in Judge Michelson's office?

Mr. E. Clinton Bamberger, Jr.: Yes sir.

Chief Justice Earl Warren: Who was present then sir.

It was Judge Michelson, Mr. Stowes, Mr. Turk, Mr. DeBoe and myself, I think that was all.

I don't think the assistant state's attorney was there all day.

What was discussed at that conference?

Answer: quite a number of things, what we wanted to go to trial, what day we wanted to go to trial, and how we elected trial.

And I recall I stated that in view of the fact that they took a jury trial, I wanted my mine first and that the case would be limited to penalty for murder in the first-degree.

Well, why would it be limited to that penalty sir?

Answer; because there was absolutely no justification or reasons, or rhythm, or rhyme for killing a man and both of them were at least engaged in robbery or larceny which is a felony and understanding of law if both of them involved in the felony.

And there was an objection to him explaining the law and it was overruled and the witness, the counsel went on and said and both of them were in fact committing a felony, they were charged each with a greater offense and one of them committing murder which everyone of them -- it was -- would be, would automatically charge the other one with murder.

And then I understand that Brady after that testified that he did participate in the robbery and the murder.

Now, how or in what respect will you injured if you in fact to have his punishment only determined in the light of that approach that was made at his original trial?

Mr. E. Clinton Bamberger, Jr.: Mr. Chief Justice, I do not think we can consider this case as if the statement by Boblit, the withheld statement is the end of the evidence that we could discover or that the withheld statement is in itself the truth of what occurred.

The point is that this was a statement which was the fifth of five which was a statement made after four denials of having anything to do with the murder.

Now the man came so far in that statement, he still implicated Brady.

At this point all interrogation of him stops.

He was never again questioned by the police.

He was never questioned by counsel for this defendant, and the point is where would this have led to, I don't know, I don't know.

I mean the --

Chief Justice Earl Warren: Well, the counsel apparently knew the facts at least as he got them from his client Brady --

Mr. E. Clinton Bamberger, Jr.: Yes.

Chief Justice Earl Warren: And he said that the only issue was the issue of punishment because his client had clearly committed first-degree murder under any reading of the facts.

Mr. E. Clinton Bamberger, Jr.: But I can't reach into his mind, but I think that part of what he is saying there and this is my understanding of it is, that he had these arguments before the jury, he had the issue of both guilt and punishment, but on the question -- on the issue of guilt he had no evidence, no evidence outside of the denial by this man Brady himself.

And so he chose rather than to put both these issues to the jury, he made a tactic, he made a choice of strategy and he decided instead of putting both these issues to the jury and maybe angering them, because I don't have very much to say about this guilt thing, I am going spread the cards on the table and I am just going to go hard on this issue of mercy and on the question of the punishment.

But that's a choice that he made after he had been overreached by the state and as much as that is speculation, so I would have to speculate to say to you how the trial would have deferred, if before the trial began he had that fifth statement where the man -- you see at this point this is a statement made when the man knows that the other man is in custody and when he is told by the police that there are some discrepancies in what you said before and he comes -- he changes the story.

Now he doesn't change it so far as to exonerate this man, but where might further interrogation of him by the police led, where might it have led further interrogation and investigation and a testimony of the trial by counsel for Brady, this is speculation, I don't know.

Justice Potter Stewart: The statement we are talking about appears at page nine of the record, does it, that's the one, statement number five?

Mr. E. Clinton Bamberger, Jr.: Yes.

Well that's part of it Mr. Justice Stewart, the -- that is just part of it quoted by the Trial Court in the post-conviction proceeding, but at page 39 of the record, pages 39 to 41, the entire statement is reproduced.

Justice Potter Stewart: I see.

This is the one, this is statement number five, I think.

Mr. E. Clinton Bamberger, Jr.: Yes.

Justice Potter Stewart: Page 39.

Mr. E. Clinton Bamberger, Jr.: Dated July 9, 1958.

Justice Hugo L. Black: What situation would you be in, if you would go back to Maryland if the Supreme Court were to hold that this confession could not be on news because of the [Inaudible].

Mr. E. Clinton Bamberger, Jr.: What position, well I think they have already put that question aside.

In this case they have decided that it would admissible.

Justice Hugo L. Black: Sometimes those things we think have settled are not [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Well, [Attempt to Laughter] it would at least I think be settled at the Trial Court level.

Justice Hugo L. Black: You wouldn't -- you might be coming in the position of having to say that some constitutional [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Well there are other ways we could get the testimony in I think and the fruit of it, what is my belief then --

Justice Hugo L. Black: You could offer the man --

Mr. E. Clinton Bamberger, Jr.: We could offer the man himself and maybe the use of that statement might lead to some other evidence which would be admissible and helpful and I don't know, but this is really the crux of our problem in this Court that there was an unconstitutional suppression or a withholding of evidence prior to a trial, and now we are only going to have half of that and we are going to have a different trial than anybody else would have and we are not going to have the trial of the Court of Appeals said we should have had.

They admitted that the first trial was unfair and we should have had another trial and then they -- I assure you that the Court of Appeals of Maryland as certain as I can be or any lawyer can be of what a court decides, never meant to decide in the Brady case that it was tacking on any additional limitation to the Maryland Constitutional Provision.

The best proof that I can say for that is that it was not discussed in briefs.

It was not discussed at oral arguments, and in the Giles case where they was a vigorous attack on this Maryland Constitutional Provision, it was held has violating the due process clause and as violating the equal protection clause.

The court went at great pains to cite the history of this constitutional provision and they cite the limitations which have been engrossed on it through the years.

And there is no mention of the Brady case, nor is there any mention of any additional limitation that the Brady case put upon this constitutional provision.

And the Giles case was decided in just last year 1962 and I -- there was no intention in the Brady case to change the law of Maryland that the jury has the right to judge the law in a criminal case.

Justice Hugo L. Black: In what legal category according to your idea that the Supreme Court put its refusal to let this case be retried so that evidence could be offered on the merit.

Mr. E. Clinton Bamberger, Jr.: The only category it seems to me Your Honor is that they said this comes by post-conviction and under the post-conviction statute we have a broad area of the remedy which we may apply.

I say this because in the opinion, Chief Judge Burns refers to that section of the post-conviction act, but he says also that he compares it with the rule of the court which in an ordinary criminal appeal gives it the same kind of a power to tailor the remedy.

Now I think the only category that I can put John Brady in is that he is placed in a category of a man whose constitutional rights have been denied by the suppression or withholding of evidence.

And who either wasn't smart enough to find it out until he had, the time for a direct appeal had expired or the state so cleverly hid it that he couldn't find it out until the time for direct appeal had expired and so he is forced to come up by the post-conviction remedy.

Justice Hugo L. Black: Why have -- they did that on the ground of harmless error?

As I see it, what they have said is that, he is not entitled to this rather new trial, if you are correct in saying he is denied his constitutional right, but it would have done no good in that issue because we stated as a matter of law that on the facts here stated, he was guilty of murder in the first degree anyhow?

Mr. E. Clinton Bamberger, Jr.: Yes sir, but then that's -- the basic error there is that I don't think that the Court of Appeals of Maryland meant to say that the jury in Maryland is no longer going to have the power to judge the law in a criminal case and in effect what they've done is direct the verdict of guilt of first-degree murder in this particular case.

Justice Byron R. White: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Yes sir, they have a duty to follow their oath as jurors, but part of the --

Justice Byron R. White: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: They have a duty not to depart from the law, but what is the law, they have the right to define the law.

Justice Byron R. White: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: More than the power they have the right.

Justice Byron R. White: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: I think they have a duty to follow that clear rule of law, but they also have the duty to follow the -- to exercise the right that they have to judge the law and there maybe -- I can, I could --

Justice Byron R. White: You would say that [Inaudible]

Mr. E. Clinton Bamberger, Jr.: I think if a jury --

Justice Byron R. White: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Yes, Mr. Justice White, I think if a jury came out of the jury room and they said, well we really didn’t think, we don’t think that the law ought to be this, but the judge told us it was and all 12 of us agreed that we wouldn’t want the law to be that, and we don’t really think it is, but we were in a civil case last week and the judge told us we were bound by the law.

I think they would then have violated their duty to judge the law.

Justice Byron R. White: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: He has a constitutional right to have a jury exercise its right to judge the law.

I would put it that way.

And every other defendant will be tried on both guilt and punishment before that kind of a jury, but this man won’t have that kind of a fair trial.

The Court of Appeals said he didn’t have it on the issue of guilt and they said he won’t have it, and this is how he set aside.

Justice Hugo L. Black: I want to ask you a question, based on the assumption that the case was sent back for a closed trial on both issues and this precise confession was offered, which is held admissible, that the judge charged the jury, I charge you as a matter of law, could he charge you?

I charge you as a matter of law that this confession shows that this defendant Brady is guilty of murder in the first degree and it is your duty so define, will he do that?

Mr. E. Clinton Bamberger, Jr.: He may not do that?

Justice Hugo L. Black: Why?

Mr. E. Clinton Bamberger, Jr.: Because his instructions may only be advisory.

He must instruct him that his instructions are advisory, he may tell them what the statute says and counsel may argue contrary to his instructions.

Justice Hugo L. Black: Well the effect of what’s been done here is, if the Supreme Court is holding just exactly what you say the trial judge couldn’t do.

Mr. E. Clinton Bamberger, Jr.: Yes sir.

Justice Hugo L. Black: Keep informing the jury the evidence on the basis that as a matter of law he is guilty of first degree as shown by that evidence.

Mr. E. Clinton Bamberger, Jr.: This is what -- the Court of Appeals has in fact directed a verdict.

Justice Byron R. White: [Inaudible] jury has the power to absolutely disregard that he could give that kind of instruction [Inaudible] say what the law is and the jury may or may not follow nevertheless they have the duty to [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Every jury may or may not follow instructions.

Justice Byron R. White: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: That the jury may or may not follow his instructions and that he can give them such an instruction?

Justice Byron R. White: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Yes, but he must say that it is advisory.

Justice Hugo L. Black: Well In that case, in that case the defendant would have a chance to get the judgment of the jury on whether they would hold it murder in the first degree, would they not?

Mr. E. Clinton Bamberger, Jr.: A jury may say --

Justice Hugo L. Black: He wouldn’t have to hold it, would he?

Mr. E. Clinton Bamberger, Jr.: No sir, they would --

Justice Hugo L. Black: But here the Court has held it, taking the place of the jury in making that decision.

Mr. E. Clinton Bamberger, Jr.: That is exactly the point Mr. Justice Clark.

Justice William J. Brennan: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Tried by the Court.

Justice William J. Brennan: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Found guilty in the same sentence.

Justice William J. Brennan: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: The sentence is death sir.

Justice William J. Brennan: Death.

Mr. E. Clinton Bamberger, Jr.: Both.

Justice William J. Brennan: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Both of the warrant of execution was stayed by the Court, because of the appellate procedures in the Brady case and the governor has just not -- has withheld the warrant in the Bobbitt case awaiting the outcome of this.

Justice William J. Brennan: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Not to my knowledge.

I think I wouldn’t have --

Justice Hugo L. Black: Tried after or before.

Mr. E. Clinton Bamberger, Jr.: He was tried after.

This is when the -- his fifth statement was offered in evidence.

At his trial, his counsel objected, because he hadn’t signed it.

The trial court erroneously excluded it.

It was discovered by counsel for Brady later when a clemency petition was being prepared and this -- the reference to the statement in the record arouse some curiosity, that’s the first time that Brady or his counsel knew of the existence of it and this was to go back to the beginning of this argument.

Mr. Chief Justice, this conference in the Trial Court’s Chambers was -- at this point, Brady’s counsel made it perfectly clear to the state that the one defense that was being asserted that Brady wasn’t the man who actually did the killing.

Now, he could have argued with on that point with that evidence.

He could have argued to a jury that you ought to construe the felony murder statute that the man who actually pulls the trigger in the commission of the felony is the man who will get the death sentence, but the other man won’t.

And -- but he apparently made a choice that he didn’t have any evidence to support a strong argument on this, because he had only the testimony of Brady, and he might have made a far different choice, if he knew of the statement and he might have had for a stronger evidence and the statement alone, if he knew of it.

Chief Justice Earl Warren: Do you recall Mr. Bamberger how this case was argued?

Did the counsel for Brady concede on the argument after Brady’s testimony that he had participated in the robbery?

Did he concede on the argument that Brady was guilty of first-degree murder, but that he should not receive the maximum penalty?

Mr. E. Clinton Bamberger, Jr.: Mr. Chief Justice, the argument was not transcribed.

The only reference to that is at the beginning of the Court’s instructions, where the Court says that -- and the Court feels that even though there has been a confession by counsel for the defendant that this traverser is guilty of murder on the first-degree without capital punishment.

I take it that at this point, having no evidence to support any argument, any strong argument that they ought to find the man guilty of something less than first-degree murder that counsel had in effect said to the jury, “I want a verdict of murder in the first-degree without capital punishment and we lay ourselves in your hands.”

I don’t know what he said.

It’s not transcribed, but.

Unknown Speaker: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: No sir, I don’t think so.

I would --

Justice Hugo L. Black: I would like to pursue my question with one more that I ask you.

Let’s assume that the Court has -- you said the function of the jury in this man’s case in the State of Maryland that it has decided as a fact what these -- under Maryland law would be left to the jury to decide?

In what way do you say that would violate the federal constitution?

Mr. E. Clinton Bamberger, Jr.: Well, I’d say it would violate the equal -- certainly the equal protection clause, because it sets this man aside in a different category and gives him a trial before a jury with his guilt already determined and just on the question of punishment.

And the only reason I can see to put him in that classification is, because he didn’t discover the overreaching by the state until after the time for a direct appeal had expired.

Justice Byron R. White: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Tried by jury which may or may not have done its duty, but by a prosecutor who didn’t do his duty and if the prosecutor had done his duty and the jury had done its duty, the result might have been different.

Justice Byron R. White: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: If the prosecutor had come up with this evidence for Brady prior to the trial, where might it have lead?

Now in all the cases in which this Court has considered denials of due process I have not found any case where the Court segregated the conviction and the guilt or any part of the case, but have always said it vesicates the conviction.

And one very important consideration by this Court in doing that is, what are you encouraging law enforcement officers to do and I think that’s important in this case.

If this results stand then what’s to prohibit the prosecutor with perhaps not the most honorable motives to take the same kind of chance with evidence in a first-degree murder case knowing that --

Unknown Speaker: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Well I think it was settled by the Thomas case which preceded this and so did the Court of Appeal.

Unknown Speaker: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Well, I am not -- I don’t say that I had to prove that there was any guile by this prosecutor in this case and the Court of Appeals agreed with that.

Unknown Speaker: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: No, I am suggesting that the remedy for the denial of a constitutional right ought to be so complete that no one can take any advantage of it in the future.

Justice Hugo L. Black: What is the denial of constitutional rights?

Mr. E. Clinton Bamberger, Jr.: In this case?

Justice Hugo L. Black: When you say that, yes?

Mr. E. Clinton Bamberger, Jr.: It was the --

Justice Hugo L. Black: What do you point to as a denial of constitutional rights?

Mr. E. Clinton Bamberger, Jr.: The failure of the state to give to Boblit’s counsel the statement made by his companion prior to the trial, more than that giving him four of them and not the fifth one, misleading him, indicating to him that, oh, sure I’ll give you Boblit’s statements and here they are, but not given him the one that was important.

Justice Hugo L. Black: Are you relying on any of our prior cases to say that that’s unconstitutional?

Mr. E. Clinton Bamberger, Jr.: I think I rely on many of your prior cases as did the Court of Appeals.

The particular case in point is a decision of the Third Circuit but the -- and I can’t point to a decision of this Court.

Justice Hugo L. Black: Did we not have a case several years ago on that point.

I have a vague recollection of it, [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Those cases are not briefed in this brief and I don’t remember that particular case, but in the -- this point was argued of course before the Court of Appeals of Maryland.

The other -- on part of that on constitutional or the depravation of the constitutional right was that, when that was done, this -- the state knew that the issue that Brady was going to present to the jury was whether he did or Boblit did it.

They knew that that was the prime issue.

All of these facts together amounted to a depravation of due process by failure to give him that scenario.

Justice Hugo L. Black: I recall, we had a case from Texas in which a Mexican was abused and murdered.

Mr. E. Clinton Bamberger, Jr.: Al Corta --

Justice Hugo L. Black: That’s right.

Do you think that apply to this?

Are you arguing on that basis?

Mr. E. Clinton Bamberger, Jr.: Well I argued on that basis in the Court of Appeals and --

Justice Arthur J. Goldberg: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Yeah.

Justice Arthur J. Goldberg: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Yeah.

Justice Arthur J. Goldberg: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Yes Mr. Justice Goldberg.

I don’t think that my case stands or falls on the peculiar provision of the Maryland Constitution, but I think my case is an easier one to argue, because of the peculiar Maryland provision.

Justice Arthur J. Goldberg: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: No sir, it would not be different, it would perhaps be less forceful.

Justice John M. Harlan: Your case is a lot stronger with that.

Mr. E. Clinton Bamberger, Jr.: My case is a lot stronger with that.

My case is a lot stronger with that.

I don’t give it away, I say that Mr. Justice Goldberg, I would make the same argument but I am more comfortable making it without Maryland Constitutional Provision.

Justice Arthur J. Goldberg: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Yes sir, yes sir.

Justice Arthur J. Goldberg: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: The Court has not changed the law in either the Giles case or in the Brady case and the Court by its own rule, which I have included at page 17 of the Appendix of this brief says that the instructions are advisory and that the Court is required to give instructions.

Now the Court now by the rules of the Court of Appeals of Maryland, the Trial Court must give instructions, which if they are requested and if they state the applicable law.

Justice Hugo L. Black: How do you answer his argument that even though the constitution says that the jury has that right, they have the right to decide it, but it’s their duty not to take advantage of that right which the constitution said they right the exert, how do you answer that?

Mr. E. Clinton Bamberger, Jr.: Well I would argue from the other side of this trial table, that what’s the right this defendant has to be tried before what kind of a jury.

Does he have a right to be -- has anyone ever said he has a right to be tried before a jury which will do its duty and maybe interpret the law as the judge thinks the law ought to be interpreted, but he’s got a right also to be judged before a jury which has the right to tell the judge to take his interpretation of the law and throw it out the window and that the jury itself will say what the law is and as much as we as lawyers --

Justice Hugo L. Black: But as I understand it, his argument is, that it’s the duty of the jury, not to exercise this right, which the constitution said they could?

Mr. E. Clinton Bamberger, Jr.: Well I say it’s the duty of the jury to exercise the constitutional prerogative that it has.

It has just as much that duty as it has a duty to follow its oath in any other regard.

The Court instructs them.

These instructions which I give to you on the law are advisory.

You decide what the law is.

They --

Justice Byron R. White: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: The right to disregard it and the duty to disregard it if their conscience convinces them that the law is an ass and ought to the otherwise.

Justice Byron R. White: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Well I can’t take it -- if you take a clear rule of law --

Justice Byron R. White: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: And they’ve got the right to do it and even if the rule of law is perfectly clear, but they think they ought not to do -- convict this man of it, they’ve got a right not to convict him, this is the history of the purpose.

It was to protect --

Justice William J. Brennan: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: If they may disregard?

Justice William J. Brennan: They may disregard a clear rule of law, because they think that’s [Inaudible]

Mr. E. Clinton Bamberger, Jr.: They have a right not --

Justice Byron R. White: [Inaudible]

Justice Arthur J. Goldberg: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Well, I think I’ve been trying to say that and that I say as they have a duty to follow the law so they have a duty to follow the constitution and so exercise their prerogative.

Justice Arthur J. Goldberg: [Inaudible]

Justice William O. Douglas: And I think you would begin to have made bigger progress if you had followed Mr. Hopewell and talk in terms of immunity and privileges.

Mr. E. Clinton Bamberger, Jr.: I think I might --

Justice Hugo L. Black: Now what is this Supreme Law of Maryland?

Mr. E. Clinton Bamberger, Jr.: The constitution I hope.

Justice Hugo L. Black: Well if that’s the Supreme Law of Maryland, why did you say they -- why do you not answer the question when it’s asked to you, if they have a right to disregard the law that they are not disregarding the law?

Mr. E. Clinton Bamberger, Jr.: Oh yes.

Justice Hugo L. Black: In doing that, which the Supreme Law of Maryland charges him with the responsibility to do it.

It is besides the law in fact for the case and is your constitution not the Supreme Law of your state?

Mr. E. Clinton Bamberger, Jr.: And I say they have a duty to follow the constitution and --

Justice Hugo L. Black: That’s the first duty, isn’t it?

Mr. E. Clinton Bamberger, Jr.: That’s the first duty and Mr. Justice Bernnan --

Justice Hugo L. Black: [Inaudible] and say we are not going to do it.

We are not going to do it, because some judge told us he didn’t want us to follow the constitution, didn’t want us to exercise the right of constitution for that, who is right, the judge or the jury?

Mr. E. Clinton Bamberger, Jr.: The jury.

Alright and as Mr. Justice Bernnan says then they are -- then they got a duty to follow nothing.

Well I suppose that they’ve got a duty to follow the constitution and if that leads them to disregard some duty that they might have to judge properly then I can’t --

Justice William J. Brennan: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: No sir.

Justice William J. Brennan: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Well they may --

Justice William J. Brennan: [Inaudible]

Chief Justice Earl Warren: Mr. Bamberger, you happen to recall what oath the jury takes when it’s sworn to try a case.

Mr. E. Clinton Bamberger, Jr.: I have -- I can’t quote it to you Mr. Chief Justice, but I remember nothing in the oath given to criminal juries, which is different than that given to civil juries and nothing there about following or judging the laws as such, I think it’s well and truly tried.

The issue is --

Chief Justice Earl Warren: [Inaudible]

Mr. E. Clinton Bamberger, Jr.: Well brought before you in the case of plaintiff versus defendant or state versus defendant.

I think its well and truly tried the issue.

Chief Justice Earl Warren: Yes, very well.