CAMPBELL v. UNITED STATES

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Argument of Melvin S. Louison

Chief Justice Earl Warren: Number 631, Alvin R. Campbell et al., Petitioner, versus United States.

Mr. Louison.

Mr. Melvin S. Louison: Mr. Chief Justice, Honorable Justices.

As you know in this situation, may it please the Court, this particular case has been the subject of two District Court opinions, three opinions of the Court of Appeals and one prior opinion of this Court.

The case is entirely one involving the scope and extent as well as the interpretation of the so-called Jencks statute, which is 18 United States Code, Section 3500.

Now, the facts of this case will work into the law as it is discussed by myself and my colleague, Mr. O'Donnell, but I wish to begin by showing the diverse positions in this case and arguing the -- of course, the position of the petitioners.

In the first instance, we have the Palermo decision which was followed by the first Campbell case in which this Court stated that to that extent, meaning the extent as limited by the Jencks statute, and I shall refer to it as the Jencks statute, to that extent as the legislative history makes clear that Jencks Act reaffirms our holding in Jencks versus United States that the defendant on trial in a federal criminal prosecution is entitled for impeachment purposes to relevant and competent statements of a Government witness in possession of the Government touching the events or activities as to which the defend -- the witness has testified at the trial.

Then it goes on to say that the command of the statute is thus designed to further the fair and just administration of criminal justice.

Now, that is followed by Judge Wyzanski in the Federal District Court stating, “With reference this second remand going back to the United States Court of Appeals that that Court has still seized of the appeal.

Its judges are as mindful as I that at the root of this case is not a mere school master's problem of construing the ambiguous language of a legislature, but the protection of the fundamental right of any defendant in a criminal case to impeach a witness by a substantially verbatim statement he previously made and which he has adopted and approved.

Seldom indeed is there such a clear showing as there has been in this case -- as there has been here that Exhibit 3 as a witness' substantially verbatim statement made on the day after his crime, Exhibit 3 of course being the FBI agent's report, the so-called agent summary.

Justice William J. Brennan: You mean the Interview Report.

Mr. Melvin S. Louison: The Interview Report, yes, Your Honor.

Justice William J. Brennan: That's what we call it, was it in --

Mr. Melvin S. Louison: I think --

Justice William J. Brennan: When Campbell was here, we called it the Interview Report.

Mr. Melvin S. Louison: Yes, sir.

It was referred to I think like --

Justice William J. Brennan: It's the one that's in the footnote?

Mr. Melvin S. Louison: Yes, it was -- it was footnoted in the official opinion.

I think Mr. Justice Frankfurter referred to it in Palermo was an agent summary but in the --

Justice William J. Brennan: No.

But in this particular case --

Mr. Melvin S. Louison: Yes, sir.

Justice William J. Brennan: -- are you talking about that report which we said out verbatim in the footnote in Campbell?

Mr. Melvin S. Louison: Yes, Your Honor.

This was followed by Judge Aldrich in the Court of Appeals stating that, if for any reason that with impeachment material does exist, a defendant is entitle to have the benefit of it, but this is in a sense a windfall rather than the performance of a duty owed.

The word windfall may sound alarming but either there is a duty owed or there is not.

We do not find in the statute any such duty.

This is followed by the statement of the United States Government in its briefs on page 49 that petitioners are incorrect in assuming that 18 U.S.C. 3500 creates a right of discovery.

Now, the word create may be an ambiguous word here.

I'm not sure whether that means that the petitioners or a defendant on trial in a criminal case has no right of discovery or whether the statute does not create it.

Perhaps, the statute itself does not create it.

It would appear that the right was created prior to the statute, of course, and the statute in the petitioners' position was to limit the extent of it and not to create it of itself for the first time.

Of course, the Jencks case itself which caused the statute to be enacted was not new nor was such in it, it was very obvious.

This is followed by the petitioner's position as set out in its brief in the summary of argument that the approach to be submitted by the petitioners to the overall question of discovery in a criminal case under 18 U.S.C. 3500 is that within the statute, another words, so -- within the limitations set by it such as the prior appearance on direct examination of the witness.

A defendant on trial has a right to discovery.

I don't speak of the creation of a right but has a right to discovery perhaps even a constitutional right since the statute to the extent that it goes reaffirms the holding of this Court in the Jencks case.

Therefore, it is submitted that discovery is to be had fairly liberally within the framework of and under the limitations set by the statute.

And the petitioners further stated that where there is a right, there must be a corresponding obligation or at least some form of remedy for the possessor to enforce his right or to seek redress for the violation or denial of his right.

Now, in that respect, we come to the important question that this Court listed in the first Campbell opinion which was the interpretation of subsection (d).

Now, subsection (d) which provides for the striking of a Government witness' testimony from the record, and of course, this would not be merely accumulated, but perhaps in the situation where the witness has applied an essential element in the statutory crime, a defendant would be entitled to a verdict on the striking of such a testimony.

This was a law enacted by the Congress for the protection of the Government and it is undoubtedly so that it was done at the behest of the Government.

Now, this particular sanction seems severe, it is one that the Congress' interest in the protection of the Government and the installation of the Government witness' statements, I refer to the FBI because this is the agency or bureau involved in our particular case, interested in the protection of these FBI files.

If the remedy seems severe, it is one that the Congress provided them, and one which we must live with if we want to have the statute.

Now, of course, I have proposed in my -- in the petitioners' brief that there is an alternative to the sanction of striking the witness' testimony because it was very obvious during oral argument in the first appearance before this Court that the question of bad faith and good faith was going to arise as to the destruction of the notes and certainly, it has in the cases on Jencks law that has followed in this Court.

Now, it is almost impossible speaking realistically to show bad faith on the part of an FBI agent in this destruction of the notes.

I'm not saying that it can or cannot happen.

I'm just saying as I said last time, it is impossible to know and I think that as practical people, we can assume that it will be just about an impossibility to have a proof of such a showing of bad faith.

On the other hand, if we set up the objectives or the object of standard versus the subject of standard, we can come to a situation which would be fairer to a defendant and I have proposed the word, the phrase secondary evidence and come to the agents' Interview Report.

Now, the Government's --

Justice William J. Brennan: You don't get to this question Mr. Louison, if in fact Judge Wyzanski was right that the Interview Report was producible either as a statement under (e) (1) or (e) (2), do you?

Mr. Melvin S. Louison: Except in one instance Mr. Justice Brennan where it was stated in the Campbell case.

Justice William J. Brennan: No, I mean, do we get to the question of the destruction and consequences of the destruction of the FBI agent's original notes if in fact Judge Wyzanski was right but you were entitled to the Interview Report as a statement under (e) (1) or (e) (2)?

Mr. Melvin S. Louison: Only reading from the Campbell case, Your Honor and the opinion says, “Does -- even if the Interview Report itself were producible, a situation might have arisen calling for decision whether subsection (d) of the statute required the striking of the testimony of the witness.”

In other words, the practical outcome would be the same if Judge Wyzanski is correct of course and they are producible that will result in a reversal of the conviction, that is so.

But the legal --

Justice William J. Brennan: Well, I -- are you then suggesting that even though you are entitled to the report and not having had it therefore that there must be a new trial?

Mr. Melvin S. Louison: Yes, of course.

Justice William J. Brennan: That this -- has -- now to be decided also whether Staula is not to testify because the agent's original notes were destroyed?

Mr. Melvin S. Louison: No, I don't say that.

No, I don't say that, Your Honor.

Well, I should like then to start under Section (e) (1), the production of the statement under the adopted or approval portion of Section (e).

Under that Section, the Court stated of course that this could be a statement taken by a third party or written by a third party and that if it was adopted or approved, there would not need a signature.

I think that law is already been established, but in this instance, we submit that we have shown through the testimony of both Agent Toomey and of Mr. Staula himself that these were adopted or approved certainly.

The Government takes the position that it must have specific approval.

Now, I'm not sure how broad or narrow the scope of the phrase specific approval is, but if that phrase means that it can only be an approval of the exactly the very words that the agent was given by the witness, this, of course, is not necessarily encompassed by subsection (1) of the Section (e), for the reason that I've used the phrase in the brief and I repeat it here.

It was stated by a member of this Court last time, it doesn't matter what his notes are even if they'd be hieroglyphics so long as the -- they are read back and approved by the witness appearing before the FBI agent.

Now, in that context, the agent wrote down the notes.

This is undisputed.

He took notes while the witness spoke to him.

He also went over the notes, the FBI agent at various times said, “No, I didn't go over the notes.

I went over the story,” but this is a conclusion which was given by the agent when he could put it across which was self-serving in nature but when asked specifically, “What did you read back to him, how did you do it, what did you say” and we got to the actual factual situation.

It was very obvious that this man read back his notes just as any men who take notes would do it, whether he'd be an insurance adjustor or an FBI agent.

The job is to make sure that the notes are taken correctly and accurately.

Justice William J. Brennan: Well, now Judge Wyzanski didn't quite make that finding, did he?

I'm looking at page 131, finding three.

Toomey did not purport to read the jottings on the pad and just the order they appeared.

And although the script was carried that once article, it would lead back to another.

Yet, Toomey not merely adhered to the substance but so far as practical to the precise words.

Is that the same thing you're saying?

Mr. Melvin S. Louison: Just -- may I say this?

Judge Wyzanski followed that to a conclusion with regard to (e) (2).

His whole opinion is directed towards (e) (2) and (e) (1) seems to be -- is followed in by it.

But if I may refer you to page 115 of the record, about halfway down where it says, folio 318, the judge, the same Judge Wyzanski said, “For the benefit of the Court of Appeals, I would like to record what I just observed as you testified in the illustration which you gave in response to my suggestion,” that is to tell what he did as he read the paper -- the notes back.

And he said, “Each time you look down at a piece of paper before you spoke a sentence,” and by the way, I might add for this Court that he was looking at Exhibit 3, the Interview Report, “each time you look down at a piece of paper before you spoke a sentence then you'll face me and spoke a sentence and again you looked at your Exhibit 3 for identification and again spoke.

Thus, you constantly go with your eyes to look at the document and then faced me and spoke.

Have I correctly described what you thought you were doing at that moment?”

The witness who was Agent Toomey: “Yes, Your Honor.”

Now, when the examination was continued by my colleague, Mr. O'Donnell, he said, “Now, Mr. Toomey when you say in your notes, you mean you're writing, right?”

Answer: “Yes.”

“Containing information furnished due by Dominic Staula?”

“Yes.”

“Now, when you finished your writing, your notes with the information furnished to you by Dominic Staula, you then ask him whether or not your notes with his information was accurate, that is so, isn't?”

“Yes, sir” and the following question is, “Please tell the Court what he said to you.”

“I can't recall specifically what he said, but I do recall that he did not voice any objection and that there was any inaccuracy contained therein.”

Now, it's my contention of course that that sequence of events in the obtaining of approval is that the approval of these notes within the scope of --

Justice William J. Brennan: I was just wondering, Mr. Louison, we do have findings, six of them. Judge Wyzanski based on all of the evidence of the merits.

Are we to go back to those?

Mr. Melvin S. Louison: I would say --

Justice William J. Brennan: Apparently, the Court of Appeals seems to think it might, but is there a question here in how far even the Court of Appeals or indeed we may go back to those findings?

Mr. Melvin S. Louison: I would say so, Your Honor.

Justice William J. Brennan: It is?

Mr. Melvin S. Louison: I would say that the --

Justice William J. Brennan: Well, what's your position?

We should or should not go back?

Mr. Melvin S. Louison: Should not go behind the (Voice Overlap) --

Justice William J. Brennan: That neither the Court of Appeals should nor should we?

Mr. Melvin S. Louison: I would say that that is correct, Your Honor.

Justice William J. Brennan: Well, if that's so, then it doesn't really help to go back into the testimony, does it?

Mr. Melvin S. Louison: That is -- well, except as you pointed out that finding number three on page 131 of the record.

And --

Justice William J. Brennan: That's a -- after -- I take it in the sense, these are findings of what we come to call historical facts, what happened in exactly the way it was done?

Mr. Melvin S. Louison: Yes.

Justice William J. Brennan: In the taking of the Interview Report?

Mr. Melvin S. Louison: Yes.

Justice William J. Brennan: Now if they're supported by evidence, should we go behind it?

Mr. Melvin S. Louison: No, Your Honor.

The only thing that happened was with Judge McCarthy's first hearing, the Court of Appeals held that he did not comply with the mandate of the Supreme Court.

And they went on to say that rather than remand it again, we will take the evidence in the like most favorable for the defendants and find against them, I'm sorry -- and find the facts ourselves and at which time they found that it was not subject.

However, because of the procedural error again and failing to call the witness, Staula, they sent it back to another judge and disqualified the first judge.

Justice William J. Brennan: Well, how much of the proceedings before Judge McCarthy are now relevant to any question we have here?

Mr. Melvin S. Louison: The Court of -- I would say, Your Honor, strictly academically, probably none, but except that the Court of Appeals in its conclusion when it said the decision of the District Court is affirmed and the convictions will stand, we're affirming the decision of Judge McCarthy and his entry of the judgments of conviction, and the sentences that went with it.

So in that respect, of course Judge Wyzanski never had the authority to enter new judgments of conviction.

Justice William J. Brennan: Well, that's --

Mr. Melvin S. Louison: And re-sentence the --

Justice William J. Brennan: That's the fact that on the question whether -- on the questions --

Mr. Melvin S. Louison: The Act --

Justice William J. Brennan: -- you have brought here namely whether -- this indeed was a statement producible under (e) (1) or (e) (2), and secondly, the consequences of the destruction of the original notes.

Do we have to go back of what Judge Wyzanski did here?

Mr. Melvin S. Louison: I would say no, Your Honor, not as you've stated it, certainly not?

Justice William J. Brennan: Well, is that --

Mr. Melvin S. Louison: Well --

Justice William J. Brennan: I take it as I have stated it.

Mr. Melvin S. Louison: I think, yes.

Justice William J. Brennan: I'm trying to find out what --

Mr. Melvin S. Louison: Yes.

I would say that so long as these findings have factual basis in the record, they should stand and not to be gone behind.

Is that the question you're asking?

Justice William J. Brennan: Although the Court of Appeals apparently seemed to have sent this back to Judge Wyzanski almost just as a master to make these findings --

Mr. Melvin S. Louison: Well, I'm glad you used --

Justice William J. Brennan: -- submit a master's report or something like that.

Mr. Melvin S. Louison: I'm glad you used that phrase, Your Honor, because I think they treated it as an equity appeal.

Under state procedure they reviewed the evidence and made their own conclusions from the record rather than be bound by the findings of fact of the District Court.

Justice William J. Brennan: I'm having -- but we have to go through all these in every Jencks case.

Mr. Melvin S. Louison: Well, if I may go to the word copy, Your Honors, it's very obvious that the original notes have been destroyed.

They have been destroyed in what has been described as the routine practices of the FBI.

However, with the exception as Chief Agent Locklin stated in the record that an individual agent has discretion as to whether or not he will destroy his notes.

But other than that discretionary statement in the record, apparently the FBI claims that this is a matter of routine that after the Interview Report is received and compared for accuracy, they destroyed the notes.

Now, in Campbell, this Court used the word “copy.”

I think it stated, “Is this Interview Report that paper or a copy of it?”

Now, the Court of Appeals has ruled that the word “copy” is used by this Court meant something which would be if recopied on a typewriter, an exact copy, perhaps subject to a minor misspelling or typographical error was the way the Court put it.

They went on to say -- to use a footnote to explain they're talking about the word “copy” under (e) (1) and not (e) (2), because they made an exact copy.

So a photocopy or carbon copy or a typewritten copy that might have a typographical error of spelling would be the only thing that would satisfy the word “copy” as used by this Court and petitioners just don't see that at all and strongly urged that the contrary is what this Court intended.

This Court intended something that would substitute for the original.

As Your Honor know -- as Your Honors know in the --

Justice William J. Brennan: You don't think that it was used in the sense of counterpart.

Mr. Melvin S. Louison: Sir?

Justice William J. Brennan: You don't think that in the opinion copy was used in the sense of counterpart?

Mr. Melvin S. Louison: I would say yes.

I would say as a counterpart, absolutely but not as a photocopy or a carbon copy only as the Court seems to mean.

I would say as this Court used it, it would mean counterpart, yes.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Melvin S. Louison: You have not stated that anything was reduced to writing, Your Honor.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Melvin S. Louison: Apparently, it is not producible Your Honor.

Justice Potter Stewart: But depends on who the witness is, doesn't it?

If the witness is the agent then clearly it's his statement.

Mr. Melvin S. Louison: Well of course -- yes, under the -- yes, of course, if that were the -- if the witness were the agent that is so because I think that was ruled in the Clancy case.

Justice Potter Stewart: Well, that was clearly within it.

Mr. Melvin S. Louison: Yes, of course.

Justice Potter Stewart: If the agent is the witness we're talking about --

Mr. Melvin S. Louison: I'm sorry.

Justice Potter Stewart: -- and then his statement is verbatim.

Mr. Melvin S. Louison: Absolutely.

Justice Potter Stewart: And it's not a matter of being producible to me.

It's a matter of being made available to the --

Mr. Melvin S. Louison: Yes, the producibility --

Justice Potter Stewart: (Voice Overlap)

Mr. Melvin S. Louison: -- (Voice Overlap) the problem.

Yes, the -- of course, I'm aware of the situation proposed in the comparing opinion to Palermo where an FBI agent is talking to a third party citizen witness which is probably what Mr. Justice Goldberg was thinking of.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Melvin S. Louison: Yes.

Well, assuming that situation -- and I'm sorry I overlooked what you just mentioned Mr. Justice Stewart but I thought I interpreted what the Justice asked, where it was stated that suppose the witness, the entire sum of the witness' story that he had no information and the FBI's agent's Interview Report merely states in a very sharp passage or in a very few words that the witness had no information.

Now, if I carry that one step further, suppose he appeared in Court and that was quite articulate with his information, would the Interview Report be admissible in that instance and I would say that that's a borderline case because I would say that's -- I'm not sure that it's the crux of this problem but I would say that'd be would be a good case for that to be produced under the substantially verbatim clause.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Melvin S. Louison: Yes, I would --

Justice Arthur J. Goldberg: I think it would be more on [Inaudible] --

Mr. Melvin S. Louison: I really can't differentiate Your Honor.

I sincerely feel that the witness who has read back the statement and approved it.

I likewise sincerely feel that this -- this Interview Report, though it is a third person, it is written in indirect -- in this Court, as Judge Wyzanski said is nevertheless substantially verbatim.

There's no -- there's no evidence in this record whatsoever of any editorializing by the agent or any changing of words.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Melvin S. Louison: Thirty-minute interview Your Honor.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Melvin S. Louison: Well, of course we don't know how much time of that 30 minutes was used by the agent himself.

Sometimes witnesses have to be prompted.

The sequence as I recall the record --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Melvin S. Louison: I would say yes.

I would say yes.

This is the statement of the witness.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Melvin S. Louison: I don't interpret it along the lines you're asking at all respectfully Your Honor.

I would say that the statute refers to this witness' statement and I would say substantially verbatim refers to the words of the witness and not the Government agent.

I would think that it is clearly so.

Now, just prior to Mr. O'Donnell continuing the argument, may it please the Court, I should like to say that the concern expressed by the lower courts and the Government over the welfare of the witness is such that it does not differ in any respect from ordinary cross-examination which is trying on a witness and stated in one of the opinions of this Court, in this case, that the witness has the right to protect himself and answer, that he can -- that he can answer questions in accordance with his knowledge and in accordance with his prior statements.

And certainly, if they act contradictory, they are shown to be contradictory and if they can be explained, certainly the judge can allow an explanation in his discretion or he can be rehabilitated by the Government Attorney and redirect, and I think that's normal proper procedure and is not to -- certainly, is not to be an element to be considered to limit the right of a defendant to obtain such a statement.

Chief Justice Earl Warren: Mr. O'Donnell.

Argument of Lawrence F. O'donnell

Mr. Lawrence F. O'donnell: Mr. Chief Justice, Your Honors, I respectfully submit that the finding of the Court and the record in support of the FBI Interview Report that as in the record and was previously set out in your former Campbell opinion that that is producible.

The finding supported by the record is that that Interview Report so captioned by the FBI Agent, John Toomey is producible in behalf of the petitioners.

It wasn't produced and therefore I say that petitioners are entitled to a reversal.

Now, may it please the Court, insofar as the proposition is concerned, the record stands in the findings of Judge Wyzanski that evidence supported his conclusions, but I say this, considering the Government's brief, we have this type of a situation.

I say it's an -- indisputable that the Jencks Act merely reaffirms the Jencks' decision and that this proposition and -- at the trial level of the case to ask a Government witness or any witness whether or not they've made a prior statement and -- to lay a foundation for it is something that is common place in the law and has been part of the law for many, many years.

So in analogy, what we have here is a principle of law that's been followed by the Court for many years.

All we have is our old friendly principle dressed in formal clothes and he has a congressional past.

However, insofar as this -- application of this law that the trial level is concerned, I see now after having the opportunity of examining Agent Toomey on two occasions and originally examining Dominic Staula, it reminds me as a person that tries cases that stereotype is coming in to the defense of producing these documents.

And by that, I mean this, we know when not to belabor this august Court with the proposition like trial of a drunk driving case but we know there's some ritualistic stereotype statements that's constantly coming from the witness stand such as glassy eyes, thick speech, he staggered, we hear that all the time.

Now, there's been introduced some new slogans.

They are jottings, abbreviations, and that comes in when someone wants to deny the production of a report.

And I say that the Government's brief is covered with the slogans and ritualistic statements of jottings of the agent, investigative notes, summary, not verbatim, not substantially verbatim.

That's --

Justice William J. Brennan: Yes, but Mr. O'Donnell, I thought --

Mr. Lawrence F. O'donnell: Yes sir.

Justice William J. Brennan: -- you're behind what Judge Wyzanski --

Mr. Lawrence F. O'donnell: Yes I am Your Honor but I --

Justice William J. Brennan: But I thought he introduced jottings.

Mr. Lawrence F. O'donnell: Yes, Your Honor.

I saw that in the opinion.

Justice William J. Brennan: Well, then why blame the Government?

Mr. Lawrence F. O'donnell: I certainly wouldn't but I just drew that analogy, may it please, Mr. Justice Brennan, on the proposition that the record doesn't bear out these key phrases and abbreviations.

And in support of the record and the conclusions as found by Judge Wyzanski, I think it does violence to reason for anyone who think as it show the record that this FBI agent of 16 years experience and the records supports that he's out interviewing a -- an eyewitness to a bank robbery.

The whole atmosphere of the interview is private.

He's with him in a police station and he's sitting down taking it.

And therefore, the record supports that he took the observations of Dominic Staula and asked him what he observed in the bank and he was told that.

So, with that in mind, when we come to the various provisions of the 3500 in the trial of cases when one is attempting with his responsibility to impeach a witness, we come up against the test of verbatim, a defendant has a test of substantially verbatim, I say that there was an attempt in Congress to have it verbatim but that yielded to something less than verbatim.

So what would happen?

We have experiences in the trial of cases of what legal tests are.

In -- on the civil side of the Court, a person can lose a fortune on the legal test of fair preponderance of evidence and on the criminal side of the Court, the Government has a burden of proving as a legal test that we're familiar with beyond a reasonable doubt to the modal of certainty every element of a crime.

Now, there's a test shifted over to a defendant concerning the wall of evidence as we read the Circuit's opinion of something that we have to get the exactness of some science that just wouldn't be in keeping with the science of jurisprudence.

So in this regard, we can't overlook propositions that when you do find yourself confronted with looking for report, I say, and I say respectfully that there seems to be in the courtroom that people reason what their glean.

If the phrase FBI is mentioned, suddenly right on the remand of this case, we heard such phrases as we were examining an FBI agent that I've -- not while this country is having a rendezvous with destiny, I've got too many grandchildren, you're not going to put this flag in half mast and so forth.

This is the -- and what we're looking for is something that's not a vast secret in the Department of Justice but something that involves a person outside the Department of Justice that's already testified for the Government and we're merely looking to examine them.

And I go further it seems as though -- and it's obvious that when we think of that department of the Government then they naturally hold out that law enforcement serves a high purpose and that the big brother to law enforcement throughout the nation that you now can say that their agent with 16 years experience had any motive for taking a bad report, wasn't capable of taking an accurate report which the record supports.

And I further say this that when we're dealing with this Bureau, I know that they have a lot of prestige when they're on the witness stand and I say that the year books of the Encyclopedia Britannica indicate to us that their success in Court averages something around 94% or 95% or 96% guilties and the vast number of that on pleas.

So when a trial of a case, I say that Congress never intended to set up a congressional blockade so that someday the reports might contain 100% convictions of all the matters treated.

So, may it please the Court, I feel that what we have here to decide on the already existing record is not the slogans, not the stereotype, ritualistic statements.

It's not in the Government brief but in the record that it will show Mr. Toomey stated them as Mr. Staula that they had a conference and that an accurate and reasonable report that is producible was had.

So I respect --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Lawrence F. O'donnell: I would say, may it please, Mr. Justice Goldberg that is producible under both sections.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Lawrence F. O'donnell: Yes.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Lawrence F. O'donnell: Yes, Your Honor --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Lawrence F. O'donnell: Yes, Your Honor.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Lawrence F. O'donnell: Yes.

Mr. Justice Goldberg, first of all, I would say, we're not confronted with the test of verbatim.

So when the actions are being confronted with the test of verbatim, 3500 calls were substantially verbatim.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Lawrence F. O'donnell: And for a legal definition of what a statement is in the trial of a case, I would say that is substantially verbatim, the agent treats with 500 words, Mr. Staula's approach to the bank, his observations outside the bank before he entered, his observations upon entering the teller's window, he walked up to what he heard, what he saw.

And I'd say in a legal definition that this Court will determine that it is a substantially verbatim statement under (e) (2).

Chief Justice Earl Warren: Mr. Solicitor General.

Argument of Cox

Mr. Cox: Mr. Chief Justice, may it please the Court.

I think it may be helpful in the beginning to recall very briefly the sequence of events in this case also perhaps most of the Court has it in mind.

The robbery occurred back in 1957 and of course, these interviews with the witness were conducted before the Jencks Act had been passed and just after the Jencks decision had been handed out.

The trial was held as there as I can make out from the record some time in the Spring of 1958, that's five years ago.

Then the case -- there was a conviction.

The case came up to this Court on certiorari from the affirmance of the conviction and it was held that there had been an error in the procedure or perhaps I should say in the substance, in any event an error with respect to the handling of the Jencks Act question, both because the Judge failed to call Agent Toomey to find out whether the writing that Staula referred to had ever been adopted and approved by Staula because he hadn't perhaps inquired sufficiently into what had happened to the writing as it was described by Staula, and because the judge had more of an affirmative duty to inquire into the existence of valid impeaching material.

The case then went back and there was a hearing before Judge McCarthy upon the questions that this Court had formulated in the course of its opinion and Judge McCarthy heard Toomey, the FBI agent who'd taken the -- made the report at some length.

And that the conclusion of that hearing, Judge McCarthy made very clear findings of fact in which he found that this was not a substantially verbatim recital of an oral statement made by Staula to Toomey, and he found that the notes had not been adopted or approved by Staula.

Then the case went to the Court of Appeals and the Court of Appeals did two things.

First it said that reviewing the records for itself, because he thought that Judge McCarthy had a committed view on this, that if found, as a fact, that this was not a qualified statement under (e) (2), that it was not a substantially verbatim recital.

And it sent the matter back to a new judge who by lot became Judge Wyzanski to determine a single question and that was because Staula, who haven't been called and to have him testify and Toomey testified again upon the single question of whether Staula had adopted and approved the notes as his statement.

Judge Wyzanski, then took testimony and instead of confining himself to the question that the Court of Appeals have put before him, he went out of his way and on the basis of the evidence before him and apparently disregarding all the evidence before Judge McCarthy which had been submitted when that issue was the one in the District Court.

Justice William J. Brennan: But Mr. Solicitor General, I don't -- if what you're going to end up with is that there's something relevant in what happened before Judge McCarthy that the issues now before us, the decision, I must confess I had considerable trouble because the Court of Appeals said that Judge McCarthy had a committed view and sent the matter back to Judge Wyzanski and I must say I read that as meaning in effect that they wipe the slate clean and had Judge Wyzanksi do it.

Mr. Cox: I submit -- I submit not Your Honor, if you look at the Court of Appeals --

Justice William J. Brennan: Well, if that's so, if that's so then there's going to be a question here whether it was compliance with our mandate.

Are we going have to do this all over again?

Mr. Cox: Well, I should think not.

Justice William J. Brennan: I would hope not.

Mr. Cox: I don't.

I'm afraid I don't understand just where the -- Your Honor, suggest there was failure to comply.

Justice William J. Brennan: Well, I'd say there was no -- on the Court of Appeals' own analysis of what happened before Judge McCarthy, Judge McCarthy didn't do the job that we sent the case back to have it done.

Mr. Cox: The Court felt that he had properly done all but one part of it.

The Court said so in its opinion, Mr. Justice Brennan, if I read it right.

Justice William J. Brennan: Well, if it did then I must say I have still greater trouble.

Mr. Cox: And it sent it back because the matter of adopted or approved had not been properly resolved before Judge McCarthy.

Now, I think, that perhaps I have given an impression that I -- it was not a 100% accurate although I think it stated it right.

It is true that the Court of Appeals did not regard itself as bound by Judge McCarthy's findings.

There's no doubt about that.

But it --

Justice William J. Brennan: Oh, instead he had a committed view if that doesn't --

Mr. Cox: Yes, and for that reason.

Justice William J. Brennan: -- (Voice Overlap) just reject them.

I don't know what --

Mr. Cox: Yes, but the -- it's beyond that point that we're different.

The Court then went and said on the basis of the testimony it would make the finding that that point had been thoroughly investigated.

The question whether it --

Justice William J. Brennan: Now what authority did it have to make the finding?

Mr. Cox: It found that the record was -- the records were all there.

Justice William J. Brennan: I think -- what if we already -- that it have under our mandate to make findings independently.

We sent it back --

Mr. Cox: If the record would permit --

Justice William J. Brennan: -- to the District Court for (Voice Overlap) --

Mr. Cox: I take it if the record would permit only one finding that that would be entirely a problem.

If there could be no difference based on what a reasonable man might find based on the witnesses and so forth then it was proper to go ahead.

Now, I was relating this not to argue that Judge Wyzanski's views under (e) (2) were irrelevant because I don't think I'm entitled to do that.

I think he did go outside its structure.

I am relating it because I do think that -- well, barely several things, I think that the whole record is before this Court, both the testimony taken before Judge McCarthy and the testimony taken before Judge Wyzanski.

I think that the -- that second -- that interpreted -- that in interpreting Judge Wyzanski's finding and in resolving the contradictions between them, there is no escape from going back to the facts and I think third, that if Judge Wyzanski's findings, which of course like all findings are open to some interpretation, are interpreted in one way, if -- when he finds that the two accounts given by the agent were in ipsissima verba, he really means that they were in ipsissima verba then we respectfully submit that his findings are clearly contrary to the evidence.

So that I do say no escape from a considerable consideration of the evidence at both hearings and it was really that point as well as recalling when it happened that I was attempting to lead up to.

The actual issue in this case is very narrowly confined.

The Government's duty with respect to statements is laid down in the Jencks Act.

The only contention that has been made here is that the testament was producible under the Jencks Act and we have as a starting point in this case the interpretation could have found the Jencks Act by this Court, in the Palermo case where the Court held that although (e) (2) particularly does go beyond, somewhat beyond mechanical or stenographic statement still thereafter the statute is to be construed most narrowly.

And the Court attempting to indicate of what it thought was the proper formulas in, it is clear that Congress was concerned that only those statements which could properly be called the witness' own words should be made available to defense for -- purposes of impeachment.

Summaries of an oral statement which evidence -- substantial selection of material or which were prepared after the interview without the aid of complete notes and hence rest upon the memory of the agent are not to be produced.

Now, our argument is that, under the Palermo case, under the words of the statute and under the sense of fairness of the problem which I'm going to try to attempt to develop.

Neither, the Interview Report by which I mean, the same as you Mr. Justice Brennan, the agent's signed report, nor what I shall call them notes, the thing he wrote down during the interview is producible under the Jencks Act.

I do think also, it's not in the record, that it maybe helpful before I come to those to say just a word about the general practice as I understand it, of the FBI in taking these interviews.

And I will try to distinguish between today as a result of the Jencks Act and the Jencks decision in our experience and what was done earlier, also really there's very little difference.

An agent maybe sent out or maybe sent out and may choose to do either of two things, if he thinks a man is what is called a key witness, one who can give a substantial account of whatever it is he's investigating then he is told to get a statement.

And by a statement, he means the witness' own words as to what occurred or preferably signed although as we all know, you can't always get a man to sign something even though you will say it was his statement.

If he does not think the man is unimportant or if you can't get him for one reason or another to make a statement, then he is instructed to prepare a written report that is a complete and accurate account of the information that he got from him.

The first is the witness' statement.

By statement, they mean, I think something like Justice Goldberg was suggesting earlier or something the witness, I said or that something the witness -- in his words.

On the other hand, the report involves selectivity of the agent's judgment of what was the important information.

Now, all statements have always been kept and this of course has always been kept by the FBI.

In the -- today, and this was simply because they were supposed to be important and people knew that they might be used in Court either for the Government or against the Government and for that reason, they were preserved.

Today, they are preserved, of course, because of the Jencks Act and because we now know that's there's an obligation to have them and to turn them over.

In addition as I understand it, it's not relevant I think to this case because Your Honors may have the whole picture, as I understand it, the instructions today are also to keep anything that the agent regards as a substantially verbatim recital even though it isn't a statement in the technical sense.

Now, I'm not -- I want to make it clear, I'm not suggesting that that statement of mine is relevant in judging what the agent did here.

There were no so such instructions back in 1957.

The agent's notes are taken and his instructions apparently are, don't try to write the whole thing, write down enough to remember and then you go back and you make a narrative report, which is an accurate statement of the information you've got and which does involve memory, selectivity, emphasis and the like.

At that stage, the practice has always been to allow the agent and possibly even to encourage the agent to throw away the notes.

I inquired why are the notes thrown away?

Why don't we keep them?

And the answer I got was, “Well, they've served the purpose.

It's just as if you call me up and asked me to get you certain things to prepare your argument but once I've come and seen you, then I throw the notes away.”

They are made for the purpose of preparing this report.

And there's nothing as one of the FBI agent said to me, “If the Court says, “We have to keep them, we'll keep them.”

But there didn't seem to be any purpose of it up to this point and that is what happened in this particular case.

The notes were destroyed as the agent testified when they had served its particular purpose.

Now I come specifically to the statute and to the particular issues here.

And I'm going to talk first about the Interview Report because the Interview Report is available, was available at the trial.

The essential facts I have already indicated, there was this interview and the agent somewhere from six to seven to nine hours later went back and dictated this report using his notes for that purpose.

It seems to us plain, first from the words of the statute that the Interview Report does not qualify for a production.

Certainly, it does not qualify under Section -- subdivision (e) (1), the statutes on pages 2 and 3 of our brief.

It is not the writing of the Interview Report, plainly was never adopted or approved by the witness and certainly, it wasn't signed by the witness.

Justice Potter Stewart: It wasn't really made by him either, was it?

Mr. Cox: It wasn't made by him.

It wasn't --

Justice Potter Stewart: The written statement was not made by him.

Argument of Richard A. Posner

Mr. Richard A. Posner: The written statement was not made by the witness and it was not adopted or approved by him. Indeed, the fact is, of course, it was made at least six hours and perhaps seven or eight hours after the agent had last seen the witness, so it couldn't have been adopted.

Justice Arthur J. Goldberg: [Inaudible]

Rebuttal of Cox

Mr. Cox: Well, that -- if it is a copy of the notes.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Cox: No, I must disagree with Your Honor on the statement.

He read the notes back to witness.

He did not -- and he testified that he did not read the notes back to the witness.

Chief Justice Earl Warren: What did he do?

Mr. Cox: Having the notes in front of him, he may gave what he called a narrative account of what the witness had said and he gave an illustration that I will develop after the luncheon recess, Mr. Chief Justice which -- in order to illustrate what he did, that Judge Wyzanski and I think it was very useful, asked him -- what I'll show you -- show me what you did and take your Interview Report as a basis and he did it.

And if you will compare the transcript of what he said with the Interview Report as it's printed in the first record and in the opinion, the first opinion in the Campbell case, you will find as I say, I will point out a little later in my argument, at least four very significant differences that any cross-examiner could exploit and make a great deal of and the gist of our case is exploiting and making a great deal of differences that are attributable to the agent and not to the witness is not conducive to the fair administration of justice.

Chief Justice Earl Warren: We'll recess now.

Mr. Solicitor General.

Mr. Cox: Mr. Chief Justice, may I please the Court.

In my anxiety to point out, Mr. Justice Goldberg, a point that I will develop at more length later when I come directly to deal with the notes as distinguished in the Interview Report, in my anxiety to point out that in our view, that notes were not read back, and indeed, I think no one found that the notes were read back as such.

I perhaps didn't address myself to what was earlier stressed of your question.

If one had a case, which we say we do not, in which notes have been made and read back and then a real true copy of the notes existed and the notes for some reason were unavailable, if it was as I say a real true copy or what I understand a counterpart of the exact copy then I think we would agree that the counterpart of the notes that were approved by the witness would be producible under the statute.

But certainly, I can make that -- make that, I can say for the purposes of this case and if that was the substantive question you were getting at, the answer is the one I've just given.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Cox: Well, I think one -- I'll address myself with that right now.

I think one has to distinguish between several situations.

In the first place, this happily, normally comes up in the context of the trial.

As a matter of fact, today, some of the immediate reaction to the Jencks decision had calmed down.

As a matter of fact, today, I am told to the United States Attorneys in the great bulk of cases turn over these things.

If someone were to say to me, why didn't they turn it over here?

I'm not sure that if I've been there, I wouldn't have turned it over here.

I think there were very good reasons not to that I am going to develop but maybe there are on the side of doing it to avoid this question.

I don't mean to imply it.

I think it should've been done.

I think one could've avoided the question.

Now, if under those circumstances, the trial judge makes his ruling about the conduct of the trial, I would think as the Court has pointed out in Palermo and elsewhere that there is the -- very greatest presumption of every kind in favor of interpreting his findings in favor of what he has done, in terms of finding that the evidence as part of those findings.

We don't have that kind of case.

We've got I think an extraordinary case.

Justice William J. Brennan: I hope.

Mr. Cox: Well, I felt very sure it is, Justice Brennan.

It's -- we've had these series of things happening in it which sort of taken out in the pattern that Your Honor has described it.

And here, for the reasons I've tried to indicate before and partly because we do say it.

I don't think the Court can ever escape this responsibility.

We do say that Judge Wyzanski's findings, if interpreted most strongly against it, simply are not supported by the evidence.

And we do say second, that to confine Your Honors' examination of the evidence, simply to the hearing before Judge Wyzanski, it would be unfair both to the Court of Appeals and to the Administration of Justice because we thought we've tried (e) (2) out before Judge McCarthy and we had a definitive ruling by the Court of Appeals on that.

Now, to resolve (e) (2), without regard to that evidence, it seems to me an injustice.

So while again, I think the weight must be given, of course, to what the District Judges did.

Still, I think there's no escape from looking back to seeing what the effects were.

I don't think there's much question about what the facts were here as --

Justice William J. Brennan: [Inaudible]

Mr. Cox: As to whether the --

Justice William J. Brennan: [Inaudible]

Mr. Cox: Well, I thought it sent it back to Judge Wyzanski to see whether the notes had been read back and approved.

Justice William J. Brennan: [Inaudible] was that all that was involve in (e) (1)?

Mr. Cox: But that wouldn't make the Interview Report producible under (e) (1) unless there was testimony showing that the Interview Report was truly a copy of the notes.

Justice William J. Brennan: [Inaudible]

Mr. Cox: Well, did he really?

It doesn't seem to me that he did really find that.

Justice William J. Brennan: [Inaudible]

Mr. Cox: Well, he says --

Justice William J. Brennan: [Inaudible]

Mr. Cox: Yes.

Justice William J. Brennan: [Inaudible] subsection (1) and that subsection simply [Inaudible] --

Mr. Cox: Well, we also -- yes, of course, we also have a finding back on page 131 where he says, Toomey did not purport to read the jottings on the pad, just the order they appeared with the scrupulous care that one stenographer would read back to another.

And you take the witness' -- you take the witness' own description of what he did and it's quite clear that he didn't read the statements back.

Justice William J. Brennan: [Inaudible]

Mr. Cox: That prob -- yes.

That was sent back --

Justice William J. Brennan: [Inaudible] as to what happened before Judge McCarthy on that [Inaudible].

Mr. Cox: This issue was sent back to Judge Wyzanski, yes.

And --

Justice Byron R. White: [Inaudible]

Mr. Cox: Yes.

On the other hand, to say that the Interview Report is not the faithful reproduction of what was read to the witness, surely, then it can't qualify under (e) (1) because in that event, it wouldn't be a copy --

Justice Byron R. White: [Inaudible]

Mr. Cox: Whether it was a copy --

Justice Byron R. White: The Interviewer Report [Inaudible] --

Mr. Cox: No, no, no that was not.

Justice Byron R. White: But he did get to that issue.

Mr. Cox: He did get to that issue and made findings upon it.

Now, there is one other point about (e) (1) that I should emphasize and that is that neither Judge Wyzanski, I don't think Judge Wyzanski found that Staula adopted or approved but the agent said to him as his statement.

It is true that Staula said and there's really no dispute about this, that's what happened or that's true.

Nobody seems to recall exactly what he said.

I submit that that -- that saying, “Yes, you've got it right, you understand the facts”, is something quite different from adopting or approving something as your statement and we rely on that point under (e) (1) as well as the others.

Now, I come to --

Chief Justice Earl Warren: Shouldn't that be more an argument to the jury on the credibility of the witness than it should be on the introduction of the right of the defense to confront him with it?

Mr. Cox: No, I think -- I think not, Your Honor.

I think that the theory of the statute and the sound theory of the statute is that they should not be interjected in a trial.

A subsequent dispute about whether these ever were the witness' words or how far did the FBI agent distort the witness' words.

That's -- remember we're back to the question as whether these men robbed the bank.

Any impeaching statement even when it's admittedly the witness' own statement is to a degree collateral, to introduce the still further question is the statement attributed to him really his statement at all.

And if not, how far did the agent distort or change it, is I submit, an undesirable and the improper inquiry for a number of reasons.

In the first place, I think it's unfair to the witness.

As Justice Brennan said in the Jencks case itself that frequently small to get his exact words.

The omission from the report or facts related at the trial or contrast and emphasis upon the same thing or even a different order of treatment are also relevant to the cross-examining process.

Now, that is certainly fair and proper where the difference in the order of treatment or where the omission, where the contrast and emphasis are the result of the witness' own doing, but where they result from what somebody else has done -- said Your Honor, from a defect in his memory, from his selections because of his attempt to decide what's important or whether it's simply that forgetfulness.

Then I think that it is unfair that the witness be taxed with it.

It's unfair to the witness.

In the second place, it seems to me that it may shake the witness' confidence in what he said, quite unfair if he's confronted with the paper that purports to say what he said, “Didn't you say this?”

The FBI agent has it written down.

Now, even so he is very sure that he didn't say it, he'll begin to wonder.

I think in this connection of a quite different incident, here in Court, perhaps a month or so ago when one of the Justices suggested through some aberration in his recollection that a private party couldn't sue for an injunction to restrain violations of the Sherman Act.

I don't know how many people reacted as I did but mine was, well, I always suppose we could.

I thought it was perfectly clear.

But if he said so, you have confidence in what he said and he said it with confidence and you begin to wonder.

Now, if it was your own words, well and good.

But if it's something that some agent has put down not trying to get your word, it seems to me that the witness shouldn't be so shaken.

Chief Justice Earl Warren: Mr. General --

Mr. Cox: My third reason Mr. Justice, (Voice Overlap) --

Chief Justice Earl Warren: (Voice Overlap) --

Mr. Cox: -- you're thinking that this is a question that must be decided in advance is as I said a moment ago, I think it is a distraction of the jury from the central issue.

This is always a question in a long trial.

And finally -- well, I don't want to overstress the point because certainly the Government will adopt itself if it has to, to circumscribe the way agents must act is to some degree are going to curtail them as the Court of Appeals pointed out on the -- in its first opinion, to some degree going to interfere was the investigative process.

I'm not making great deal of this, but if the agent can take notes on the -- to get the information, the substance of the information and forget any danger that it will ever be used in an effort to impeach a witness later, he can carry on his job quite differently then if he has to be told.

Now, remember, any report even of the substance of what the witness said to you is subject to being used to impeach him and therefore you always must take a statement of the witness what the instruction would be and this would simply be a narrowing into that degree and interference.

So I think those five reasons suggest that this ordinarily must be determined in advance.

Chief Justice Earl Warren: On the other hand, does it seem -- does it seem fair for an agent to take a statement which if repeated back to the witness and confirmed by him as being what he had said should be produced at the trial.

But on the other hand, if the witness or if the agent, in order that it cannot be ordered to be produced says to the witness, and instead of reading it back to him said, “Well, now is this what you said”, and gives him the gist of it and so forth.

The witness says, “Yes”, and then you -- the defense can't get it.

Does that seem -- does that seem to be fair and do you think Congress if that precise --

Mr. Cox: Well --

Chief Justice Earl Warren: -- question was put to it would've answered it in that way?

Mr. Cox: Your Honor, I had -- have two difficulties with all respect with your statement.

Chief Justice Earl Warren: Yes.

Mr. Cox: The first is the witness didn't say here, “That's what I said.”

Indeed --

Chief Justice Earl Warren: What did he say?

Mr. Cox: He said, “That's what happened.

That's true”, or something like that.

Chief Justice Earl Warren: Well, that --

Mr. Cox: Nobody seems very sure.

Chief Justice Earl Warren: But it happened as he told it.

Mr. Cox: Yes, but --

Chief Justice Earl Warren: How did -- how could he be clear as to about something unless he had told it?

He had just – and he's telling the agent what he saw and what he knew and then the agent granted to him or told -- told it to him and he said, “Yes, that's the way it happened.”

Mr. Cox: Well --

Chief Justice Earl Warren: He must admit that's the way it happened as I told you it happened.

Mr. Cox: Well, let me --

Chief Justice Earl Warren: I don't (Voice Overlap) --

Mr. Cox: -- suggest once again and I don't want to forget the second --

Chief Justice Earl Warren: Yes.

Mr. Cox: -- the point of Your Honor.

They've -- but let me suggest once again that just as Justice Brennan have pointed out in the Jencks case, the differences in emphasis, changes in sequence, omission of something or maybe exploited by a skillful cross-examiner so there is a difference between taking and verifying a statement as your statement and saying, “Yes, you've got an accurate picture of what occurred.

”I think those are two very different things.

And it seems to me that the Congress made it very clear in the legislative history that it didn't want the omissions, the changes in sequence, the differences in emphasis used as a basis for cross-examination.

Now, the other thing that -- if I may go on just a minute, Mr. Justice White, the other thing that troubles me Mr. Chief Justice in your statement perhaps I'm taking it too literally, I don't think the agents deliberately avoid getting statements.

I have nothing in the --

Chief Justice Earl Warren: No, I didn't say this man was.

I was thinking about the consequences if we ruled that that could be done.

Mr. Cox: I don't think there would be any -- I don't think there'd be any consequences at all.

I think the agents as I've told in the case of important witnesses to get statements because I think they basically tried to get statements.

Justice William J. Brennan: [Inaudible] -- but Mr. Solicitor General, from the Court's finding [Inaudible]?

Mr. Cox: So was I, Your Honor.

And I asked this question.

I couldn't ask it of Toomey because I don't know where Toomey is but I asked the men who were familiar with this question.

And they replied, “Well, we all make our judgments as to what likely to have happened?”

We all have our theory as what's important here and Toomey apparently didn't think this was such man.

In retrospect -- in retrospect they said and I said it.

It --

Justice William J. Brennan: [Inaudible]

Mr. Cox: Well, I think there's a very -- I think there's a very good illustration of exactly the danger --

Justice William J. Brennan: [Inaudible] -- you can't deny [Inaudible] defense counsel the Interview Report [Inaudible].

Mr. Cox: If that was what happened, Your Honor.

Justice William J. Brennan: I don't know what happened.

Mr. Cox: But I think it's important to see exactly what happened because this does illustrate curiously the very -- one of the very things that I have been trying to emphasize.

Now, let's get the facts here straight.

The petitioners say in their brief and this is no doubt what Your Honor relied on, Staula told Agent Toomey that he saw only two people in the bank and never saw a third robber.

This is diametrically opposed to his identification of three men at the trial.

Now, the fact is that he did not identify three men at the trial and the record makes it perfectly plain that he didn't identify three men at the trial.

What he did do was he said there were three men in the bank.

And he explained that the reason there were -- he knew there were three, was he could see two of them and he heard another voice who was obviously one of the group.

So he knew there was a third man there and he explained this at the trial.

Now, his statement which --

Justice William J. Brennan: [Inaudible]

Mr. Cox: Well, let's look -- because Your Honor, either the first record --

Justice William J. Brennan: [Inaudible]

Mr. Cox: -- or the full text to the Court's opinion in the first Campbell case.

The statement is just below the description of the robber with a dark blue suit with a dark hat on.

There the statement appears, Mr. Staula stated that he did not observe a third man in the bank.

Chief Justice Earl Warren: Where is that General?

Mr. Cox: This is on page 213 of the first record.

Chief Justice Earl Warren: Oh, yes, yes, okay.

Mr. Cox: It's also -- Mr. Justice Brennan gave the page but I didn't get --

Justice William J. Brennan: Page 91 of 365.

Mr. Cox: Page 91 of 365 U.S.

Now, let's go back to the interview.

The agent, knowing that there was three men and remember that he had interviewed other people, who might very well have said, this was apparently done over a full half hour and he was asking questions.

“Can you describe the third robber?”

And the witness might say no.

“Well, why not?”

He might have replied, “I didn't get a chance to observe him.”

He might have said, as the Agent said he said on page 115, that he did not observe the third man standing in the back.

In other words, he knew he was there but he didn't observe it so that he could describe him.

Now, I can't say that that happened.

That wouldn't be so fully, but I do think to have the witness cross-examined when the word observe wasn't his word and when the -- we don't know what words he used to the agent --

Justice Byron R. White: [Inaudible]

Mr. Cox: Yes, yes.

Let me -- may I, while I'm at it and while we have these pages in front of us, point out the kind of differences that creep in.

Now to illustrate to Judge Wyzanski what he did with respect to the notes, he took the statement that's reprinted in 365 U.S., the one on page 213 of the first record that he held it in front of him as if it was his notes.

And then he gave what he called a narrative account such as he gave to the witness.

And taking just the two paragraphs that they -- as they appear at page 115 of the present record, let me point out some four differences, there are others but let me point out four that seemed to me of -- perhaps not of significance in cross-examining this witness, but they show the kind of thing that it could be different.

In the first place, in the statement as it was written up, it says, he did not know -- he did not know what type of gun was carried by these two individuals whom he observed but believed that they could've been 45 caliber automatics.

As he put it to Judge Wyzanski, you were not certain what kind of guns they are but you feel they are 45 caliber automatic.

Now, I suggest Your Honor, Justice Brennan, could do quite a lot with that on cross-examination as to the difference in the degree of the witness' recollection, which time was it right, which time was it wrong.

Again, he tells it quite differently with respect to the chance to observe the robbers.

The one that is written down, the agent's report says, that after facing the wall, Staula observed these individuals no further.

I may say that the “observe” seems to me almost surely to be the agent's word.

It comes in over and over again and Staula didn't use it himself during his prime, the word observe, although, he answered questions with observed.

Now, the other time in the one of the trial, there's no such assertion at all.

There's no statement as to whether he had a chance to observe them further or not.

Another difference with respect to the opportunities and observation, in the agent's report, he has Staula saying that he entered the vault as directed and observed these individuals no further.

In Court, the agent says that what he read back would have been, one of the men ordered you to go into the vault and as you got there, you saw these individuals.

Now, again, let me know the qualification.

The next line says, you saw them no further and it maybe that the agent started to make a mistake and that the stenographer was not able to catch the intonation.

But even the fact, he started to make a mistake, he got that far enough, demonstrates I think, the danger of not having something that is an attempt to recite the witness' words.

The final one, there's a difference with respect either to the orders that were given them about entering the vault or with respect to the time they were in the vault.

In the agent's actual Interview Report down toward the end, Mr. Staula stated that one of the robbers closed the door of the vault, he issued some order to the effect that people locked inside should not leave and that they stayed there for five or ten minutes.

The one he gave at the trial says, “Somebody closed the door of the vault and said something to the effect that people in there should not leave for five or ten minutes.”

There are two more -- it's the same thing but two more things.

Justice William J. Brennan: May I ask you Mr. General [Inaudible]

Mr. Cox: I don't -- I don't know.

Justice William J. Brennan: [Inaudible] He was looking at the Interview Report and after the judge asked what he had done [Inaudible].

Mr. Cox: Yes, yes.

Justice William J. Brennan: [Inaudible]

Mr. Cox: And then he was showing how he paraphrased from his notes.

Justice William J. Brennan: As if the Interview Report --

Mr. Cox: He's pretending that the Interview Report was the notes.

Now, the reason I emphasize this because the Interview Report was concededly far more complete than the notes.

And if there were all these variations between his paraphrase from the Interview Report and his paraphrase from the notes, it seems to me that the fact that the agent introduced this kind of difference shows the reason for requiring as (e) (2) does, a substantially verbatim recital and that this was not a substantially verbatim recital of what the witness said.

Justice William J. Brennan: [Inaudible]

Mr. Cox: Well, it would seem to me that if there is this variation between the notes and what the agent said to the witness, certainly he did not read back the notes.

Justice William J. Brennan: [Inaudible]

Mr. Cox: One and two kind of --

Justice William J. Brennan: [Inaudible]

Mr. Cox: And something could qualify under --

Justice William J. Brennan: [Inaudible]

Mr. Cox: No, I would think not.

For example, if a stenographer here were taking down what I have said.

It would not qualify under one if I never saw it but it would qualify under two.

And it would qualify under two even if the stenographer made a mistake.

And that go a step further if one who is able to write in longhand rather fast and I spoke a little more slowly than I sometimes do, was making an effort to take down my words, then I would think that that might qualify.

I think that's probably the thing that Justice Frankfurter was talking about, but I think it must be an effort to take down what I was saying.

Justice Byron R. White: Well, let's assume Mr. Solicitor General.

Assuming that what you concede [Inaudible] --

Mr. Cox: Right.

Justice Byron R. White: [Inaudible] precisely what he said -- the witness.

Mr. Cox: It wasn't recorded contemporaneously.

Justice Byron R. White: [Inaudible]

Mr. Cox: It doesn't -- and the reason for that of course is that if you -- seven hours later dictate precisely what you say, it's the extraordinary chance.

It's the chimpanzee typing out Shakespeare on the time just short of infinity.

The Congress -- and this was -- this, Mr. Justice White was all carefully debated in Congress.

Justice William J. Brennan: [Inaudible]

Mr. Cox: That that is true but there has to be a writing for him to approve.

Justice William J. Brennan: Now maybe he hypothesized the notes taken and reading back [Inaudible]

Mr. Cox: I don't think that Your Honors took that last step in the first Campbell.

Justice William J. Brennan: [Inaudible]

Mr. Cox: Yes.

Oh, no, that what's Judge Wyzanski did.

That's --

Justice William J. Brennan: [Inaudible]

Mr. Cox: I really -- if I might just -- I don't think you took the last step.

I think you did say that if the agent attempts to write down what -- if the Agent writes something down and then reads it back.

And the witness said, “Yes, I approve that as my statement.”

Even though he has never seen it, I think first Campbell would say that will do.

I do want to emphasize to prove it as my statement.

Justice Byron R. White: [Inaudible]

Mr. Cox: Well, I think I would be inclined.

I haven't considered this question, but my immediate reaction Justice White is that that is -- if the witness really intends to prove it as his that that is more nearly (e) (2) than (e) (1).

In other words, I take it that something might qualify under (e) (2) even though it's a question and answer.

And the bulk of the questions are leading, which is almost the situation we are now describing.

I think it has to be that the witness understood what was being said and approved it as his but assuming that, I think (e) (2) would be the more applicable.

I would hesitate to say that it could not be accepted under first Campbell, but as soon as the element of memory comes in, six hours of memory, then I think we know from the legislative history and from reasons given in Palermo that it was not intended.

Justice Byron R. White: [Inaudible]

Mr. Cox: But he didn't, we don't know.

He didn't have the chance.

Well, I think the agent's narrative report fails under (e) (2) for several reasons.

In the first place, it's not a recording, it seems to me.

In the second place, if you're -- it's not substantially verbatim, so there's no attempt to record what the witness said.

And in the third place, and each of these stands as a sufficient reason, it certainly wasn't recorded contemporaneously whether it was seven hours or nine hours or something in between, I can't say but it was at least that long.

Now, I said a moment ago that this was a deliberate decision by the Congress.

I'm aware that the courts have been through all this in connection with Palermo, but let me just recall the fact very, very briefly.

The original bill reported by the Senate Committee made it very plain that the statute was intended (e) (2) but they weren't in that form then but the equivalent of (e) (2) was intended to be limited to recordings.

And the Senate Committee report quoted some testimony by the Attorney General, making it very plain in words applicable almost to this case, that it was not intended to make producible the agent's reports of the substance of what a witness said.

On the floor, the sponsors of the bill, Senator O'Mahoney and others, struck out recordings and put in records.

And I think if the word record had survived, I would certainly have a much harder case.

In fact, I doubt that I would care to argue it against the light of the legislative history.

At that stage, we know that from the debate on the floor that the Department of Justice was objecting and Senator Dirksen introduced a proposed amendment that would have gone back to recordings.

And Senator Dirksen and Senator Roscoe and Senator Keekal and their statements are in our brief, all made it clear that they were supporting the amendment and objecting the Senator O'Mahoney's version because as Senator Keekal put it, witnesses should not have thrown at him records which are not agreed to be -- not agreed to be the witness' statement.

They didn't want it unless it was the witness' own words.

Now, the Senate rejected the Dirksen Amendment so that up to that stage, I -- I would have a harder if not impossible case.

Over in the House, the bill was passed in a form which made it perfectly clear whether there would even be a doubt about recordings, that it took the very tight version of being espoused by the Department of Justice.

The Conference Committee obviously rejected the Senate version.

It substituted the word recording, but it did put in that it should be a substantially verbatim recital and there were some discussion in both Houses about what was meant.

Senator Keating said in the House, “The conference provided the only statements of defendant, provide the only statements the defendant could see and then only in the courtroom were those actually signed or formally approved by the witness or stenographic verbatim recital of a statement made by a witness which is recorded contemporaneously with the making of such oral statement.”

In the Senate, Senator Jarvis made what I think was the most authoritative statement, what has been done with the so-called record provision is to tie it down to those cases in which the agent actually purports to -- actually purports to make a substantially verbatim recital of an oral statement the witness has made to him.

I submit that anyone who arranged the testimony here must conclude that the witness did purport either in the Interview Report or in his notes to make a substantially verbatim recital of the witness' own words.

That wasn't what they've tried to do.

It wasn't on the testimony what they did and I submit it for the reasons I tried to indicate before that to permit him to be cross-examined about variations between his testimony and that kind of statement in a forum where small differences can be exploited, words, his own words opt to be exploited quite properly.

But to subject into that where it isn't his own words where the differences may be somebody else's word, is to introduce a false issue, to distract from the attention at the trial and to really interfere and not aid in the administration of justice.

Rebuttal of Melvin S. Louison

Mr. Melvin S. Louison: Mr. Chief Justice.

Chief Justice Earl Warren: Mr. Louison.

Mr. Melvin S. Louison: Thank you, Mr. Chief Justice and members of the Court.

I should like to start my rebuttal by alluding to a statement made by the Solicitor General that this issue could have been avoided had he been there because he might have given us the statement and thereby avoided the issue.

Let me say, this in the first record that appeared in the first Campbell case, the testimony of the witness Yates that was also reproduced -- was also produced and in that situation, we had an identical foundation laid for the production of a statement.

And as I read some of the later cases, I'm not sure that you have to lay the foundation for production of these statements, but in any event, in that instance we did.

The judge ordered the Yates Interview Report produced and the Government complied with it willingly.

We came to the Staula testimony and we asked the same series of introductory or foundation questions and the judge, if you recall from the first Campbell opinion, did order it produced.

At that time, the Government very strenuously objected to it and I say that takes care of the Government's contention of guesswork up in this Court saying that, “Well, perhaps he meant by our observation this or perhaps he meant by observation that.”

I don't say this.

The Government didn't give us the Staula statement because the defendant Lester would.

The witness, Staula was the only men in 58 Government witnesses that identified the defendant Staula and had we obtained -- I'm sorry, the defendant Lester, excuse me and had we obtained that statement, you may rest assure that the likelihood of an acquittal for at least that one defendant would have been assured.

And I say that is the reason we didn't get it because it contained a bomb, if I may use that expression, and that was why if there was a simple explanation, this idea of saying, don't confront a witness with something that might not be his words, can anyone say, if I were to say to the witness right now, Mr. Staula, didn't you say you did not observe a third man?

Is there anything to -- is there anyone to say that he wouldn't say, I never said that.

Now, this isn't a nicety about the meaning of the word.

This is a clear cut proposition.

He saw a third man or he didn't see a third man and if he didn't, he could clearly say so.

At one point in the Government's brief, it says --

Justice William J. Brennan: [Inaudible]

Mr. Melvin S. Louison: He was the only witness in the entire seven-week trial Mr. Justice Brennan that identified the defendant, Staula.

There was --

Justice William J. Brennan: Defendant Lester.

Mr. Melvin S. Louison: I'm sorry.

Staula is on my mind apparently.

The defendant, Lester and there was some allusion --

Justice William J. Brennan: [Inaudible]

Mr. Melvin S. Louison: He was more than precise.

He was exact.

Well, if it's -- yes.

And I would say therein you have --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Melvin S. Louison: He -- yes.

Actually, this was a -- an experience, let me put it that way.

At the time, he was sent down to the rail and he stood before the three men who were in an enforced seating arrangement with a motion for sequestration having been denied.

And he stood before these three defendants and he pointed to one Campbell and then he didn't -- but didn't say anything.

That doesn't appear on the record.

But I only say this, in real life, down in that courtroom as Mr. Justice Brennan said, we shouldn't go behind the facts here, in real life, that man pointed to three defendants.

He stated, “I know Campbell resembles one”, and he definitely identified Lester.

Now, when he stated the identification of Lester about the gas station, he was actually saying, “I know Campbell in that gas station and not Lester” and the record shows that the judge rehabilitated him.

In addition to which, the record will show that everyone of the Government witnesses who identified a robber at the door of the bank pointed to Alvin Campbell as being the man in the blue suit.

Now, he says Donald Lester was the man in the blue suit.

This taken out of context and produced in a record with only his testimony doesn't show the entire picture.

The entire picture shows that all three defendants were intimately wrapped up in his testimony and that the question of his putting Staula into the -- here, I go again -- Lester into that bank was through this witness and when one of the Justices said that this was a crucial witness, I should hope to tell you it was because this was the Government's case against one of them.

Now, I didn't mean to get excited but I think therein lies the answer to why we were given the exact situation in the Yates testimony and we were not given it.

And I say this respectfully, certainly, to one of the imminence of the Solicitor General but had he been there at the trial, he might have seen a little different picture than what appears today in the cold print of the record before this Honorable body.

Now, as I understand this Mr. Justice White, there's utterly no requirement of substantially verbatim under subsection (e) (1).

Subsection (e) (1) says that there is to be a written statement or written recording made of the witness' statement and that the witness can adopt or approve the notes.

Now, the notes do not have to be substantially verbatim, but notes have to be approved.

Justice Byron R. White: [Inaudible]

Mr. Melvin S. Louison: I'm sorry, I thought the question was of a substantial -- a faithful reproduction of the -- got into -- very closely related.

Justice Byron R. White: [Inaudible]

Mr. Melvin S. Louison: Very good, yes sir.

I say that there was a situation where substantially verbatim -- in any event, I say that substantially verbatim does not apply in (e) (1), it doesn't have to at all.

It's just the question of whether or not these notes, regardless of how they were made up or how they were drawn were approved and I say that there's utterly no question as the Chief Justice suggested that they were approved.

The words, that's true, that's what he said.

I asked the word -- I asked Mr. Staula, did you approve what he said and upon objection of the Government, it was sustained because I used the word approved and that word appeared in the statute itself and the judge felt that that was not a proper question.

Justice Byron R. White: [Inaudible]

Mr. Melvin S. Louison: Yes, but not by the witness necessarily, yes.

Justice Byron R. White: [Inaudible]

Mr. Melvin S. Louison: Yes.

Justice Byron R. White: [Inaudible]

Mr. Melvin S. Louison: On your assumption.

Justice Byron R. White: [Inaudible]

Mr. Melvin S. Louison: Well, Mr. Justice Frankfurter I think covered that both in Palermo and in Campbell when he said, during the proceedings in chambers, and I'm reading from page 107 of 365 U.S., during the proceedings in chambers, the Government repeatedly asserted that the report was not in existence at the time Staula was interviewed.

Assuming this to be true, it is irrelevant.

The question is whether there was a contemporaneous recording from which the transcript -- transcription was later made.

Now, if certainly the notes made at the time the witness was talking, is a contemporaneous recording, the transcription was later made.

Justice Byron R. White: [Inaudible]

Mr. Melvin S. Louison: If I may, Your Honor please, Chief Agent Locklen was asked this question, “What instruction does an agent received Mr. Locklen about approving or checking the accuracy of his notes after an interview with the witness?”

Answer: He is taught to go over them with the witness and inquire whether the story is as he has it, is a recitation of the story as a man gave it, the witness gave it.

Justice Byron R. White: [Inaudible]

Mr. Melvin S. Louison: The facts of this case?

The facts of this case sir and I read from page 32 of the record, the United State's Attorney is now addressing Mr. Toomey, the FBI Agent, he said, “Having in mind that the interview about which you're recording, having been complete about noon, having in mind that you were using notes which embraced one direct quotation, some abbreviations and many key phrases and having in mind that you went about your business for approximately nine hours between the end of the interview and using of the -- and not using of the Dictaphone, it is fair to say sir that you relied a great deal on your memory of what transpired.

Isn't that a fair statement?”

The answer by the FBI Agent is, “No sir.

I said that I relied primarily on the notes.”

Justice William J. Brennan: [Inaudible]

Mr. Melvin S. Louison: Oh, of course sir, yes sir.

Justice William J. Brennan: [Inaudible]

Mr. Melvin S. Louison: They are.

I think I introduced it by saying acting on his assumption and I think that is so.

I might also read one last statement if I may and how you -- in deference to what Your Honor suggested, Mr. Justice Brennan.

On page 26 of the record, “Well, Mr. Toomey, does this Interview Report have the same meaning as your notes?”

Answer: “It does.”

Now, we can stay up here and hypothecate all day long but in view of the judge's findings, the record will clearly substantiate it and as it has been suggested it should be binding.

And --

Rebuttal of Lawrence F. O'donnell

Mr. Lawrence F. O'donnell: Mr. Chief Justice, just one comment, may it please the Court.

On page 113 of the record before the Court in support of Judge Wyzanski's findings, halfway down to show that there's evidence of approval.

I put the question to Agent Toomey.

“Now, Mr. Toomey, would you please tell this Court what technique you employed at the moment when Mr. Staula -- with Mr. Staula to show your notes were accurate.”

Answer: “After Mr. Staula recited the happenings of the day before and I took notes concerning what he had said, I asked him several questions and took notes concerning his answers to those questions.

I then went over the entire story with Mr. Staula in narrative form, referring to my notes and when I finished, I asked him if the story was correct.”

Question: “And what did Mr. Staula say to you?”

Answer: “He agreed that the story was correct.”

Rebuttal of Melvin S. Louison

Mr. Melvin S. Louison: If I may just say in conclusion Mr. Chief Justice, the -- I think the record will bear out the findings of Judge Wyzanski and the petitioners submit that the conviction should be reversed.

Thank you.