JOHNSON v. UNITED STATES

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Argument of William J. Lippman

Chief Justice Warren E. Burger: Arguments next in number 5247, Johnson against the United States.

Justice Hugo L. Black: Mr. Lippman.

Mr. William J. Lippman: Mr. Justice Black and may it please this Court.

This case presents the question of the effect of a constitutionally invalid death sentence instruction upon petitioner's conviction for rape under the District of Columbia Rape Statute where the evidence of guilt was not compelling.

Briefly the facts, petitioner was convicted largely on the testimony of the complaining witness who testified that she was on her way to work on January 22, 1967 at Saint Elizabeth's Hospital when her car broke down in front of a gas station.

She went to the gas station to seek help.

Petitioner drove into the same gas station purely by happenstance.

He volunteered to push the petitioner's car to the parking lot at Saint Elizabeth's Hospital.

She accepted his offer.

Upon arrival at the parking lot, she testified that he forced her into his car and drove off.

Shortly thereafter, they stopped at a gas station where he purchased a dollar's worth of gas.

There was an attendant present.

She made no outcry.

No effort whatsoever to seek the assistance of the attendant.

They then drove off to a secluded spot.

They talked for awhile.

He asked whether she was married, she said yes.

He asked whether she loved her husband, she said no.

He then asked her to remove her underclothes.

She proceeded to do so without any protest.

Following which, an act of intercourse took place.

After the act of intercourse, at her request he drove her back to the -- to work to the Saint Elizabeth's parking lot.

She gave him her car keys.

He gave her his correct phone number.

He promised to return that afternoon to help start her car.

He did return that afternoon when he was promptly arrested and charged with rape.

Throughout the entire episode, the complaining witness offered no protest or resistance by word or action because she said she was in fear for her life.

She testified that she suffered from a thyroid condition but no medical testimony was adduced to corroborate this point.

The complaining witness was unmarked.

There was no evidence of force other than her own testimony that she was in fear for her life.

Petitioner took the stand in his own defense, admitted that he pushed the complaining witness his car to the lot but denied the act of intercourse.

Petitioner was indicted and tried under the provisions of 28 -- D.C. Code 2801 which is reproduced on page 3 of our brief which gives a jury discretion to sentence a defendant to death for the crime of rape.

At the outset of the trial, the prosecution announced that the case was a capital case.

But that the government was not seeking of the death penalty.

Nevertheless, the case was tried before a death qualified jury with one juror being excused because she stated that her opposition to capital punishment will prevent her from returning a verdict of guilty if as a consequence, petitioner might be sentenced to death.

The court judged the jury that even though the Government was not seeking the death penalty, it was free to sentence petitioner to death if they found them guilty and that if they were unable to agree that the death penalty should be imposed, they should merely return a verdict of guilty and the court would impose an appropriate penalty.

A portion of the charge with respect to the death penalty is set forth at pages 297 and 298 of the appendix.

Petitioner was found guilty and sentenced to a term of imprisonment from 6 to 18 years.

His direct appeal to the Court of Appeals --

Justice John M. Harlan: Does the record show how long the jury was out?

Mr. William J. Lippman: Yes, Your Honor.

Mr. Justice Harlan, the jury was out two and a half hours, I believe, or more particularly, two hours and twenty minutes.

Justice John M. Harlan: They come in for instructions, sacramental instructions during that period?

Mr. William J. Lippman: I don't believe so Mr. Harlan -- Mr. Justice Harlan.

His direct appeal to the Court of Appeals was pending when the court's -- this Court's decision in United States v. Jackson 390 U.S. 573 was handed down.

The Court of Appeals panel which heard the appeal affirmed the petitioner conviction with Senior Judge Fahy dissenting.

Petitioner's conviction was again affirmed by the Court of Appeals on rehearing en banc in a divided opinion.

Four of the judges on the Court of Appeals dissented on the ground that the evidence was insufficient to sustain petitioner's conviction and three, disserted on the additional ground that petitioner was prejudiced by the trial of this case as a capital case.

If the Court please, petitioner here contends that his conviction violates this Court's holding in the Jackson case and that he was tried for a capital offense when he should not have been.

More particularly, it is our contention that the death sentence instruction gave the jury an impermissible choice of verdicts which might have resulted in a compromise verdict in this case.

Petitioner's principle contention here is eloquently stated in the dissent of Judge Fahy below.

After quoting with approval from the opinion of Mr. Justice Marshall, then Circuit Court -- then Circuit Judge Marshall -- excuse me Your Honor.

In the Hetenyi versus Wilkins case, Judge Fahy states and I'm quoting from the appendix at page 346, “We cannot surmise, there was no likelihood of the jury considering the availability to them of the death sentence.

We have no basis for such a surmise.

And it is the erroneous availability of the death sentence, not the likelihood of its rendition that gives rise to the prejudice.

It may have exerted an indiscernible influence on jurors in deciding whether to find guilt but without the death sentence or not guilty.

One or more jurors with his or her attitude about the crime of rape reinforced by the statutory provision for a death sentence might have been so influenced.”

As stated by the Second Circuit in Wilkins, supra, 348 F.2d at 867, “It is sufficient if there is a reasonable possibility of prejudice for the Court erroneously to give the jury a range of verdicts more severe than the law allows in the case on trial is for the Court erroneously to influence the jury adversely to the accuse.”

As result, the verdict rendered maybe more severe then otherwise it would have been even if not the most severe committed by the erroneous instruction.

Justice Hugo L. Black: Why do you say it was error to refer to the death penalty?

Mr. William J. Lippman: We say it was error Mr. Justice Black because the charge gave the jury a choice of three verdicts.

It gave them the choice of a verdict of not guilty, of guilty as charge, or of guilty with the death penalty.

Justice Hugo L. Black: Why do you say it was error to submit the death penalty?

Mr. William J. Lippman: We say it was error because under this Court's decision in Jackson, the trial of this case is a capital case including the death sentence charge while updated the petitioner's constitutional rights and he was prejudice thereby Mr. Justice --

Justice Hugo L. Black: What's the constitutional right?

Mr. William J. Lippman: Well, the constitutional rights to which he was -- to be protected under the rationale of this Court's decision in Jackson.

Jackson holds that he was by electing to stand trial by jury.

He was exposed to greater punishment than he would have been if he had waived his right to a jury trial or pleaded guilty and this was the constitutional defect which voided the penalty scheme in the Kidnapping Act and the same scheme was incorporated in the D.C. Rape Statute.

Only the jury under the D.C. Rape Statute could sentence a defendant to death.

So to that extent we have an analogous situation to Jackson.

Now, --

Justice Thurgood Marshall: Am I correct that this case that jury found guilty, period?

Mr. William J. Lippman: Yes, Mr. Justice Marshall.

They returned a verdict of guilty but without the death penalty.

Justice Thurgood Marshall: Where do you get to compromise this?

Mr. William J. Lippman: Because the charge, Mr. Justice Marshall, gave them an additional option.

It gave them the right to return a verdict of guilty with the death penalty as we read the statute.

They were really three possibilities here and the guilty as charged verdict could be construed as a verdict of guilty on the lesser included offense.

If the jury had returned a verdict of guilty with the death penalty, that could have been similar to aggravated rape, ordinary rape perhaps guilty as charged, or not guilty.

Those were the three options, as the charge clearly indicates.

They had three possible alternatives here.

Now it's possible in that situation for one jury to feel, well let's sentence this defendant to death.

Another juror to feel, well we should acquit him.

Justice Thurgood Marshall: They only have two hours and 20 minutes.

That was awful fast bargaining.

Mr. William J. Lippman: Well, we can --

Justice Thurgood Marshall: Is it true in the studies made in juries that bargaining comes out in many hours.

Now what does the study shows?

Mr. William J. Lippman: Mr. Justice Marshall, --

Justice Thurgood Marshall: I just -- I can see where a jury would say “well, we can find manslaughter, voluntary manslaughter, third-degree murder, second-degree murder, first-degree murder, or first-degree murder with a death penalty.”

But were the jury had the decision that decides whether or not you are guilty of rape, I don't see so much bargaining room there.

Justice John M. Harlan: I suppose the part of your argument is, I understand that in a case that divided the Court of Appeals as closer as this one did.

It was whether the evidence would even be sufficient to the question of harmless error.

It takes out the significance of different fact in which would they done where the evidence is drawn upon.

Mr. William J. Lippman: That is entirely correct Mr. Justice Harlan, I'm glad that you made the point sir, because we're not arguing this contention any abstract, we're arguing it with reference to this close case of guilt in --

Justice John M. Harlan: May I ask you this question, what sentence did this man get in the crime?

Mr. William J. Lippman: 6 to 18 years Mr. Justice Harlan, he is now serving his sentence at Lorton Reformatory, yes sir.

Justice John M. Harlan: How much did he serve?

Mr. William J. Lippman: He served three years.

He is eligible for parole in -- at the fall of 1973.

We believe that the rationale of the Fahy dissent has indeed been adopted in this Court's opinion in Price v. Georgia decided last term.

Here, the petitioner was subjected to trial for a capital offense and expose to the hazards of capital punishment.

But the same as was the petitioner in Price v. Georgia and that the death sentence instruction here gave the prosecution the advantage of offering the jury a choice, a situation which is up to induce the jury to strike a compromise rather than to continue to debate his innocence.

Now, if I may just respond to Mr. Justice Marshall's observation a minute ago.

True, the jury was out two hours and a half.

It's not a very long time.

It's quite possible to speculate that they did not seriously consider the death sentence.

But it's impossible to rule out that possibility.

And this is where no one can say by hindsight what actually happened in that jury rule as part of the jury deliberation so long as it was an option tended in the charge to the jury.

It's got to be credited as a realistic possibility.

Justice John M. Harlan: Perhaps, you're talking about realism too.

It is trued that the Government in fact said that beginning of the trial they were not asking the death penalty.

Mr. William J. Lippman: That is correct Mr. Justice Harlan.

Justice John M. Harlan: Or I would suppose that's in fact, weighing the whole situation here that people's talk.

Mr. William J. Lippman: Again the test is not as you would read it or as I would read it but as the impact that had upon the jury.

Let me just read the critical portion of the charge Mr. Justice Harlan, starting at the bottom of 297 of the joint appendix.

“If however, you are convinced beyond a reasonable doubt that the defendant is guilty of the crime of rape then the statute provides that you may, if you unanimously agreed to do so, recommend to the Court that the death penalty attached.”

The Government is not seeking the death penalty.

I repeat, the Government is not seeking the death penalty.

“But you may if you wish to do so,” add the words with the death penalty to your guilty verdict if you find him guilty.

Now this following paragraph, I regard as quite critical.

Unknown Speaker: Do you think that was error?

Mr. William J. Lippman: Yes, Mr. Justice.

Unknown Speaker: Do you think he was bound by the statement of the Government in what seeking the death penalty?

Mr. William J. Lippman: No.

I think he had the -- I think he had to charge the jury in accordance with the statute, that's what the statute provided at the time.

Then he goes on to say “if you do not wish to have the death penalty imposed or if you are unable to agree that the death penalty should be imposed, then you should merely return a verdict of guilty.”

Now how does that language strike the jury?

Isn't he really saying, isn't it a possible interpretation that he's telling the jury?

Well, if you don't feel this crime is heinous enough or bad enough or the defendant is -- should be killed, should be put to death, they just find him guilty.

Now the jury retry it to the jury rule with those instructions.

There is no part of the trial which is of grave or importance in the determination, in the guilt-determining process in the Court's charge.

I refer the Court respectively to -- respectfully to the language of Mr. Justice Frankfurter in Andres v. United States in his concurring opinion 333 U.S. 740 at 765.

“Charging a jury is not a matter of abracadabra.

No part of the conduct of a criminal trial as a heavier task upon the presiding judge.

The charge is that part of the whole trial which probably exercises the weightiest influence upon jurors.”

So here we have a situation where the jurors are given an impermissible option, an impermissible consideration.

Justice Hugo L. Black: Why do you say it was impermissible if you say the judge had a right to give that charge and was not bound by the decision of the Government?

Mr. William J. Lippman: Well, it was voided and made an illegal charge by this Court's decision in Jackson, Mr. Justice Black, by virtue of the statutory scheme.

Justice Hugo L. Black: You mean Jackson versus Denno?

Mr. William J. Lippman: No, United States versus Jackson.

Justice Hugo L. Black: United States --

Mr. William J. Lippman: United States versus Jackson.

Yes, sir.

Justice John M. Harlan: Does the record show this man was?

Mr. William J. Lippman: I'm sorry Mr. Justice Harlan?

Justice John M. Harlan: Did the record show, how old this defendant was at the time?

Mr. William J. Lippman: I believe he was in his late 20's at the time, 27 or 28

Justice John M. Harlan: Does that show the composition of the jury?

Was it all male jury or partly male, partly female or what?

Mr. William J. Lippman: It was partly male and female, Mr. Justice Harlan.

It was not an all male jury.

Justice Potter Stewart: How old was the victim?

Mr. William J. Lippman: The victim was I believe in her late 30's or around 40 and the record also shows that they were the same physical size.

Justice Potter Stewart: Where they -- was this an interracial?

Mr. William J. Lippman: No, they were both members of the black race, Mr. Justice Stewart.

Unknown Speaker: Mr. Lippman, may I ask?

Is what you apprehend may have happened is that some jurors would say “Well, he is guilty but if you're going to give him the death penalty, I'm going to vote to acquit because I simply can't give him the death penalty.”

And that therefore the jurors agreed.

Well that's -- find him guilty without giving him the death penalty.

Is that the sort of thing you're concerned may have happened?

Mr. William J. Lippman: My concern is that the availability of the death sentence option might have led to a compromise resulting in the guiltiest charge verdict by getting a possible hold out who wanted to acquit.

To agree that he would return, go along with the majority and find the defendant guilty as charged provided no death penalty were imposed.

In other words, as a quid pro quo for rejecting the death sentence alternative, a holdout who wanted to acquit might have been won over.

That's the way we view the compromised verdict possibilities here and again we are talking about possibilities not probabilities because I don't think it's a province of the Court or counsel or anybody as a part of a rationalization after the fact to say what exactly was in the minds of the jury.

This Court has been in certain spec and refusing to do -- engage in such an exercise.

Unknown Speaker: I gather under the district system as it then was.

It's been changed since, hasn't it?

But is it then was, if everyone agreed he was guilty.

He'd have to get life under a guilty verdict unless everyone also agreed, he should get death, isn't that right?

Mr. William J. Lippman: I believe the statute provides for imprisonment up to 30 years.

Unknown Speaker: Well, whatever it is but my point is he couldn't get death even though every one agreed he was guilty.

He could not get death unless everyone also agreed he should get death, isn't that right?

Mr. William J. Lippman: That is correct.

Unknown Speaker: That's the way it worked.

Mr. William J. Lippman: It had to be unanimous either way.

Justice Potter Stewart: It had to be an affirmative recommendation of the death penalty, is it not?

Mr. William J. Lippman: It had to be a verdict of guilty with the death penalty.

Justice Potter Stewart: Affirmatively --

Mr. William J. Lippman: Affirmatively.

Justice Potter Stewart: The jury had to affirmatively at that.

Mr. William J. Lippman: That is right.

Justice William J. Brennan: So, if you had a situation where they were unanimous that he was guilty, but there was a single holdout who wouldn't go -- give him death and the only result would have been verdict of guilt without the death penalty, isn't that right?

Even if 11 of them saw he ought to get death and there was a single holdout, although all the 12 agreed he was guilty.

Mr. William J. Lippman: I believe that's a fair construction of the statute and by the same talking of --

Justice William J. Brennan: Does that have any bearing on whether or not there was this kind of pressure to compromise it to argue?

Mr. William J. Lippman: I believe that again Mr. Justice Brennan, it's impossible to say where that -- where the pressure comes from.

They might just as readily have been holdout that wanted to acquit who was one over to the middle ground because of the availability of the death sentence --

Justice Byron R. White: It wasn't available if he just stopped and said no.

All he had to do is to say no death penalty and there would be 30 years.

Mr. William J. Lippman: I'm sorry I don't understand the question Mr. Justice White, or who had to do it.

Justice Byron R. White: I do.

Mr. William J. Lippman: All who had to do it?

The Court had --

Justice Byron R. White: No but all -- why would one juror trade a vote for guilty to avoid the death penalty when all he had to do is to just say no death penalty.

Just one person of death penalty and then automatically 30 years, not a hung jury, not a new trial but 30 years, that's all he would get.

One person saying -- so he doesn't need to trade anything to a way to avoid the death penalty.

All he needs to do is say no death penalty.

Mr. William J. Lippman: It's still might have been away of avoiding a hung jury.

The compromise might have been reached as a method of avoiding a hung jury.

Justice Byron R. White: But that would not have anything to do with the death penalty.

Mr. William J. Lippman: Well, you're assuming Mr. Justice White that there was divisions in the reasoning of the jury.

I cannot really join in that assumption.

I think they would -- under the statute and under the charge if they were confronted with the patent of again of three possibilities.

Justice William J. Brennan: They were clearly told of the instruction, I think that they have -- that there was this alternative of that if you disagree on the penalty, that's the end of the matter.

Mr. William J. Lippman: But it was a unitary procedure and a unitary verdict was called for.

It wasn't a two-step procedure.

Justice William J. Brennan: No, but in their deliberations in the jury room, this is itself.

That all 12 of them could agree that he was guilty and 11 of them might have sought that they ought to have the death penalty but the 12th said “No, I won't give him death.”

And the only verdict they could return and would have been a proper verdict was guilty to which it would automatically attach the 30-year sentence.

Mr. William J. Lippman: Not automatically.

Up to --

Justice William J. Brennan: Well, whatever.

Mr. William J. Lippman: Up to 30 years Mr. Justice Brennan.

Yes, that would certainly a possibility.

I should like to close my direct argument and reserve the rest of my time for rebuttal with this quote from the opinion of this Court in Jackson v. Denno, 378 U.S. 3867, an opinion written by Mr. Justice White where the following language appears, “For we cannot determine how the jury resolve these issues and will not assume that they will reliably and properly resolve against the accused.”

That's this case.

Thank you.

Justice Hugo L. Black: Mr. Huntington.

Argument of Samuel Huntington

Mr. Samuel Huntington: Mr. Justice Black and may it please the Court.

The Government's basic position in this case is that no prejudice resulted to petitioner from the trial of his case as a capital case.

Unknown Speaker: Are you going to argue that Jackson v. United States does not invalidate this system?

Mr. Samuel Huntington: We do make that argument at some length in our brief and I had planned to refer to it briefly.

I think it is set forth quite adequately in our brief.

The main thrust of petitioner's argument here is that the instructions to the jury on the death penalty issue may have interfered with the jury's deliberations on the issue of guilt.

And heavy reliance is placed on this Court's decision last term in Price v. Georgia in the 1966 Second Circuit's opinion in the Hetenyi v. Wilkins.

Those cases of course involve the double jeopardy problem of retrying a person for murder after he had been found guilty only if the lesser included defense and that conviction had been upset on appeal.

The analogy petitioner seeks to draw between the Price and Wilkins situations in this case are unsound for several different reasons.

First reason is that -- in each of the former cases, the murder charge was one of the principle issues, perhaps the principle issue in the case.

Each prosecutor had sought to establish first-degree murder and the jury's deliberations on the defendant's guilt in those cases would necessarily center in and focus on that first-degree murder charge.

By contrast, the death penalty issue in this case played a very insignificant role.

Some statistics are worthy of note.

Since 1930, only three persons have been executed for rape in the District of Columbia, the last one occurring in 1949.

As far as I could discover, no jury has imposed a death penalty in a rape case since the 1950's and at least in the last several years, the Government has not sought to impose the death penalty.

Turning to this case, the prosecutor specifically stated during voir dire that he was not seeking the death penalty.

After the voir dire, neither the prosecutor nor petitioner's trial counsel again referred to the death penalty issues.

In a summation, the prosecutor merely requested a verdict of guilty as charged.

And then of course during the charge to the jury, the judge twice repeated that the Government was not seeking the death penalty.

Nor that the evidence presented by the Government make it likely that the jury would seriously consider imposing the death penalty.

This was not a case of aggravated rape.

Petitioner's argument on the sufficiency of the evidence really cuts two ways here.

He argues that the evidence did not really establish none consent but we maintain that the closer the evidences on the consent issue, the less likely it is that the Government would -- that the jury would seriously consider imposing the death penalty.

Justice John M. Harlan: Could I ask you a question?

Do you argue in this case on the premise of Jackson governs this case even though redirecting this.

Are you arguing in that premise?

Mr. Samuel Huntington: This part of my argument is based on that premise.

We do argue --

Justice John M. Harlan: Based on that premise.

Mr. Samuel Huntington: Yes.

Justice John M. Harlan: Now, the second I want to ask you.

So here on that premise, your argument that this is a harmless error defense?

Mr. Samuel Huntington: Yes.

Justice John M. Harlan: Now I read the Court of Appeals opinion and I couldn't find any advertent discretion on the harmless error issue except on (Inaudible) at the other attentions here without merit, am I right Mr. Huntington?

Mr. Samuel Huntington: That's right.

They did not specifically refer the harmless error test.

But this whole argument I'm making now, I think supports the finding that a petitioner was not prejudiced but beyond the reasonable doubt.

We're now turning to this compromise contention.

We believe that that is also the analogy with Price and Wilkins doesn't exist.

In Price and Wilkins, there was the choice of first-degree murder, second-degree murder, or voluntary manslaughter and not guilty.

Before the jury could unanimously return a verdict of guilty of the second of the lesser included defense which they did in both Price and Wilkins, the juries holding out for not guilty had to give up their insistence on that verdict and the guilty is whole -- the jury is holding out for first-degree murder had to give up their existence on that verdict.

So obviously there was a possibility of compromise.

As Mr. Justice White pointed out that that does not exist here.

The jurors did not have to agree on the death penalty issue so that in order to return a verdict of guilty, if it's not necessary that the jurors might have thought that they should impose a death penalty, give up anything.

Obviously, if they were in favor of imposing the death penalty, they would believe in petitioner's guilt.

So the same dynamics that existed in the same potential for compromise just don't exist here.

Turning now to the --

Justice Thurgood Marshall: I understand the basic point agree that that second part of the charge could be interpreted as telling the jury that you must be unanimous in order to give the death penalty and that if you are not unanimous on the death penalty, automatically you find him guilty.

Mr. Samuel Huntington: Well, he does make that point here.

He made it in his opening brief and in his reply brief.

He quotes the first full paragraph at the top of page 298 of the appendix which does say that if you do not wish to have the death penalty imposed or if you're unable to agree, then you should merely return a verdict of guilty.

However if you go back --

Justice Thurgood Marshall: But you both agree these are evidence are rather in corporate language though.

Mr. Samuel Huntington: Well, I think -- I read in isolation, you can with that interpretation on it.

I think if you read the last two paragraphs in the bottom of page 297 in conjunction with that, it's perfectly clear that the trial judge instructed the jury to first of all determine the guilt question.

If he so said that if you find him not guilty, that's the end of the case.

If you find him guilty, then you can go on and consider the death penalty issue which the Government has not sought to impose and if you're unable to agree there, then you return the guilty verdict.

I don't really think that this charge is ambiguous on that point at all.

Petitioner also alleges in his brief, he didn't refer to it in argument.

Mr. Lippman didn't refer to it that the fact that the jury was death qualified may have prejudiced petitioner on the issue of guilt.

Well, to begin with the jury in this case was not truly death qualified and that the prosecutor did not seek to obtain a jury which would return the death penalty.

The prosecutor merely sought to -- merely sought to have a jury which would be unbiased on the issue of guilt.

In his sole question to the jurors was whether their views on capital punishment would interfere with their ability to return a verdict of guilty if the evidence so compelled.

One witness was excused.

Now several decisions of this Court have established that the exclusion of persons for views of -- on capital punishment cannot be held to -- that the evidence simply is insufficient to hold that that would bias, make the jury prosecution prone.

The Witherspoon case so held in Bumper and North Carolina, the same result was reached.

And as a matter of fact, in Pope v. United States involving, decided under Jackson involving the Jackson-type decision.

The jury was death qualified.

He -- Pope received the death penalty but in remanding this case, this case simply remanded for re-sentencing, therefore, impliedly holding that Pope was not prejudiced on the question of guilt, although that point was argued.

I would like briefly to refer to the remaining points made in petitioner's brief.

He argues the sufficiency of the evidence that that issue actually involves both questions of fact and law.

The legal question involves a proper interpretation of the phrase forcibly and against her will as contained in the D.C. Rape Statute.

Both the majority and the dissenting opinion below recognized that under the prevailing and proper interpretation of that statute overcoming the resistance of a woman by placing her in fear of death were serious bodily harm was equivalent to using force to overcome physical resistance, so the disagreement centered on what was necessary to establish fear.

Justice Hugo L. Black: Does the record show on what stage after this alleged fear which she referred claiming that she was raped?

Mr. Samuel Huntington: Yes the record shows Mrs. Fooshie, well, Mrs. Maze the complainant testified that when petitioner returned her to her place of work, she went in, report it to her supervisor and told her of the crime.

Mrs. Fooshie testified, the supervisor, testified as a defense witness that when the complainant arrived, she first ask if she could have the day off.

She first said, I want to talk to you, can I have the day off.

I don't feel fit for working.

She testified that the complainant was very upset and very nervous.

And that she asked the complainant to come in to the backroom, there are lots of people in the hall where they first met, and that in the backroom, the complainant broke down and told of the crime.

Justice Thurgood Marshall: I would assume that there were guards there where she came to work.

Mr. Samuel Huntington: The -- there is no evidence that there are any guards at the parking lot.

There may have been one guard at the gate.

Justice Thurgood Marshall: I looked for it.

There is nothing in there about it, does it?

I tried to find it in the record.

There is nothing either way.

Mr. Samuel Huntington: Nothing either way.

There is evidence that petitioner waited until one car had parked and someone had gone inside before pushing the car in to the lot.

Justice John M. Harlan: Who alerted the police to arrest?

Mr. Samuel Huntington: Well the -- as soon as it was reported to the supervisor, they reported that to the security guards at the hospital who then called in the police.

Justice John M. Harlan: She did not make any complaint to the police herself?

Mr. Samuel Huntington: Well she stayed with the supervisor as soon as she --

Justice John M. Harlan: Oh!

I understand that but the --

Mr. Samuel Huntington: Her initial complaint --

Justice John M. Harlan: The record was triggered by the -- her conversation with the supervisor.

Mr. Samuel Huntington: That's right.

Justice John M. Harlan: Who then in turn got in touch with the guards and then called the police, is that it?

Mr. Samuel Huntington: That's right, yes sir.

Now the evidence on fear, I think is certainly sufficient to support this verdict.

Mrs. Maze repeatedly testified that she was scared to death and that she thought petitioner was going to kill her.

She also testified that he stated that if she -- she didn't scream, he wouldn't hurt her.

He also -- there is also some objective testimony and that she testified that he recognized she was nervous.

That he told her that he knew she was scared because she was so nervous.

Well under all of these circumstances, I won't belabor the point.

The resolution of this issue we believe the Court of Appeals was correct.

First of all involving an interpretation of the D.C. Statute as it does on the issue of law, this Court has traditionally deferred to the opinion of the Court of Appeals on local D.C. matters and we think they should do so here on the issue of fact.

The jury finding was concurred in by the Court of Appeals and we don't believe this Court should consider the matter further.

Justice John M. Harlan: How did the Court divide that in the evidence point?

Mr. Samuel Huntington: 5 to 4.

Justice John M. Harlan: 5 to 4.

Mr. Samuel Huntington: Yes.

Justice John M. Harlan: Four, thought the evidence is that.

Mr. Samuel Huntington: Four of them thought the evidence was too thin but they didn't base it on credibility.

They based it more on the interpretation on what is necessary to shelf here.

Justice Thurgood Marshall: Well, it was what?

Mr. Samuel Huntington: What was legally necessary to establish fear as a substitute for force under the D.C. Statute.

Justice Potter Stewart: They assumed the truth of everything that the complaining witness said, as I read the dissenting opinion and then said that was insufficient to establish the offense of rape from the District of Columbia.

Mr. Samuel Huntington: Right.

The final argument petitioner raises here relates to the prosecutors characterization during summation of petitioner's defenses as inconsistent.

He argues that his defenses were alternate in denying intercourse on the one hand and arguing that the Government had not established non-consent.

However, the petitioner did offer evidence on the consent issue.

He offered the evidence, that Mrs. Fooshie, the hospital supervisor.

And she testified that Mrs. Maze had first asked for leave.

That can only be relevant on the issue of consent.

Mrs. Fooshie however, further testified in direct contradiction of the defenses theory that intercourse had not taken place.

She placed the arrival of Mrs. Maze at the hospital at 7:30 whereas petitioner had testified that he had left her office at 6:45 and another witness testified that petitioner was home by 7:00.

So, really petitioner was arguing inconsistent defenses.

Even if the prosecutor's isolated remarks here were somewhat in excess, this case is no way comparable to the Burger case, the 1935 decision of this Court reversing for prosecutorial misconduct where the misconduct there pervaded the entire trial and included many different items.

And I just -- will close in noting that the Court of Appeals to the District of Columbia examines very closely charges of prosecutorial misconduct as the case United States against Stevenson, that's 424 F.2d. 923.

They cite a whole bunch of cases there in which they have examined it but neither the majority nor the dissent in this case, felt called upon and comment on this issue.

In conclusion we submit that the judgment below should be affirmed.

Rebuttal of William J. Lippman

Mr. William J. Lippman: Just a few brief points Mr. Justice Black, first with reference to Mr. Justice Stewart's comments with regard to the evidence.

This petitioner was convicted on the basis of the testimony of the complaining witness which while it might have been corroborated with respect to the act of intercourse was not corroborated in our judgment with respect to the consent issue.

Now, the Court of Appeals in the Coltrane case, Coltrane v. United States 418 F2d. 1131 which was decided after this case initially, talks about the element of corroboration on all elements of the offense.

We maintain that that element of corroboration was missing here.

Now, if the Court please, this record in its entire -- in its entirety cannot be read without getting the feeling that there has been some kind of miscarriage of justice here.

This was true at the point of trial in the Court of Appeals, the point of the Court of Appeals opinions, at a 5 to 4 split.

It's particularly true now that we have the issues of the United States v. Jackson violation and the Price case.

We feel that this case does come under the reasoning of the Price case but we're not asking this Court to make any broad pronouncement of constitutional significance here.

This Court can exercise its supervisory powers over the federal courts and reverse its conviction if it feels that has been substantial error or substantial in justice below.

As regards, the point made by Mr. Huntington so far as the statistics are concerned.

Of course the jury didn't know how many rape defendants had been sentenced to death.

It's impossible to impute this knowledge into the minds of the jury.

I think we'll be making a basic mistake by assuming that the only issue here is the issue of the death sentence instruction and how it affected the jury's deliberations.

We have a broad issue in that the defendant was tried for a capital offense when he shouldn't have been and he was exposed to all the incidence of a capital trial.

This Court has recognized the distinction between being tried for a capital offense and other offenses.

Indeed, it was recognized in the opinion in Price v. Georgia.

In which I think in Price v. Georgia the Court said that to be charged with a capital offense, of course that went off on double jeopardy but they did say that it's an ordeal not to be viewed lightly, the language of this Court in Price v. Georgia.

Thank you for your attention.

Justice Hugo L. Black: Mr. Lippman, I believe you were appointed by the Court?

Mr. William J. Lippman: Yes, Your Honor.

Justice Hugo L. Black: The Court wants to thank you for your services.

Mr. William J. Lippman: Thank you very much Mr. --

Justice Hugo L. Black: Prompted in by the fact that the lawyers will perform these services for ending independence.

Mr. William J. Lippman: Thank you very much Mr. Justice Black.