CHAMBERS v. MISSISSIPPI
Legal provision: Right to Confront and Cross-Examine, Compulsory Process
Argument of Peter Westen
Chief Justice Warren E. Burger: We'll hear arguments next in 71-5908, Chambers against Mississippi.
Mr. Peter Westen: Mr. Chief Justice, may it please the Court.
The petitioner in this case, Leon Chambers was convicted of a murder which another man was seen committing and towards that other man spontaneously and repeatedly confessed within hours of the shooting.
The case presents two questions.
First, whether Chambers has a right under the constitution to introduce the other man's confessions to prove he is innocent and second, whether Chambers has a right under the constitution to cross-examine the other man and to impeach him for repudiating his confession in court and denying that he had anything to do with the crime.
The case began with a shooting that it took place at night during a racial disturbance in June, 1969 in the town of Woodville, Mississippi.
The victim was a policeman named Aaron Liberty.
Liberty and other policemen were confronting an angry crowd of about 50 blacks.
As Liberty faced the crowd, he was suddenly shot four times in the back.
The bullets came from a 22-caliber gun from somewhere in the alley behind him.
As he died, he turned and shot both barrels of his riot gun into the alley.
The first shot passed over the heads of the crowd, the second shot hit a man, who by then was running down the alley.
That man was the petitioner, Leon Chambers.
Chambers was left in the alley severely wounded.
When the police had gone, he was taken to a local hospital where two days later, he was placed under-arrest for the murder of Aaron Liberty.
Chambers insisted from the outset that he was innocent and that the state had arrested the wrong man.
Indeed, within hours of shooting, another man Gable McDonald spontaneously confessed on separate occasions to three different people that he was the one who shot officer Liberty.
He first confessed to Berkley Turner, who left the scene of the shooting with him, that night.
He next confessed to Sam Hardin who he had known all of his life and who drove him home on the night of the shooting.
He confessed the next day to Albert Carter, his next door neighbor whom he had known for at least 25 years.
Four months later, McDonald repeated his confession.
He dictated it in the presence of a Minister and signed it under oath, it was detailed.
He said that he shot officer Liberty at close range from the mouth of the alley.
He said that he used his own nine-shot 22-caliber pistol which he discarded after the shooting.
He said that he was confessing because it was no secret any longer that he was the one that shot Liberty.
He said that he was telling the truth, but admitted that he would be afraid to testify in court.
Justice Harry A. Blackmun: Mr. Westen, does the record show what has happened to Gable McDonald then?
Mr. Peter Westen: Gable McDonald had a preliminary hearing, one month after he signed his written confession for justice of the peace who after a few days of deliberation, dismissed the charges against him.
One year later, Chambers himself went to trial for the murder of Aaron Liberty.
He based this defense on showing that he was innocent and that it was not he but McDonald who killed Liberty.
The evidence against Chambers is practically nonexistent.
One witness testified that he was watching Chambers at the time of the shooting, and could swear that Chambers did not shoot Liberty.
Three policemen who were on the scene; one who was standing only two yards from Chambers and another who was standing four yards from Chambers and watching him at the time, denied seeing Chambers shoot Liberty.
The police testified also that despite diligence search, they never found the murder weapon.
There was evidence also in the record of the Chamber -- there was no evidence in the record that Chambers had ever owned a 22-caliber gun.
It is true that one witness, a policeman, the one who was standing farthest from Chambers, testified that he saw Chamber shoot Liberty.
Chief Justice Warren E. Burger: Was there any evidence offered that McDonald ever owned a gun like this?
Mr. Peter Westen: Yes, the record showed that he had purchased before the shooting a 9-shot .22-caliber pistol and that he purchased shortly after the shooting, a second .22 caliber pistol.
Chief Justice Warren E. Burger: At what stage in the process of the proposed impeachment was that evidence offered?
Mr. Peter Westen: That was offered as part of the defendant's affirmative case.
The defendant called a witness who sold the two guns to Gable McDonald in Natchez, Mississippi and we had federal fire arms records.
I was saying that there was one eyewitness, a policeman who testified that he saw Chamber shoot Liberty.
But, the record also shows that neither that policeman nor any other policeman even searched Chambers who was lying at the most 20-25 feet from them after he was shot and that, that same policeman spent the next day asking members of the Black community if they knew who shot Liberty.
As for Chamber's affirmative case, which is the issue here, he moved first to introduce McDonald's oral confessions.
The confession was spontaneous, they were independent of one another.
They were uttered on the scene of the -- they were uttered within hours of the shooting.
They were made to friends of his and the people who had themselves witnessed the shooting.
Furthermore, the confessions were corroborated by eye-witness testimony.
One witness testified that he saw McDonald shoot Liberty, another testified that he saw McDonald immediately after the shooting carrying a pistol.
As I said before, there was evidence that McDonald had owned two .22 caliber pistols.
One that he had purchased before the shooting and another that he had purchased immediately thereafter.
Nonetheless, when Chambers called Sam Hardin and Berkley Turner as defense witnesses, the trial court excluded, prevented them from discussing McDonald's confessions.
He excluded the confessions on the ground that declarations against penal interest are hearsay and inadmissible in Mississippi.
Chambers then moved to introduce McDonald's written confession.
For that purpose, he called McDonald as a defense witness.
He had no illusions at that point that McDonald would be a friendly witness, because of McDonald's own preliminary hearing long before the trial, McDonald had repudiated his confession.
But Chambers called him for the purpose of authenticating the confession and laying a basis for introducing it and he examined McDonald for that purpose only.
Justice Byron R. White: Was the written confession introduced?
Mr. Peter Westen: Yes, it was.
It was --
Justice Byron R. White: On what ground?
Mr. Peter Westen: It was introduced--
Justice Byron R. White: (Inaudible)
Mr. Peter Westen: I think if the state hadn't made a hearsay objection, it would have probably been sustained, but they did not and hearsay is only excluded on motion, on objection in Mississippi.
It may well have been --
Justice Byron R. White: He was subjected to cross-examination on his repudiation?
I mean he was subjected to questioning by --
Mr. Peter Westen: The state interrogated him about the truth of his confession, but Chambers was denied the right to cross-examine him following the state's examination about his repudiation.
Justice Byron R. White: All (Inaudible)
Mr. Peter Westen: That's right.
Justice Byron R. White: And --
Mr. Peter Westen: He knew at that point.
Justice Byron R. White: Then introduced him?
Mr. Peter Westen: That's right, and the state made no objection.
It may have been that the written confession had already been introduced in McDonald's own preliminary hearing, whether that was the reason or whether the state failed to make the objection for other reasons, it was directed to jury.
Justice Byron R. White: And -- so the Chamber said that he called him stand and said this showed him the copy (Inaudible) is this your confession?
Mr. Peter Westen: That's right.
Justice Byron R. White: He had signed it, it is your signature?
Mr. Peter Westen: Yes.
Justice Byron R. White: And the next question might have been did you also admit that you killed Liberty, do you also admit that to anybody else?
Mr. Peter Westen: He might have asked that question, but he had very good reasons for not asking it.
He made a motion before trial to examine McDonald --
Justice Byron R. White: No, but let's assume he had asked.
If the written confession -- if he was entitled or permitted to inquire about the written confession, might he be not then have permitted to inquire about the oral confession?
Mr. Peter Westen: Certainly and I think if he had asked that question, it would have been admitted but there were reasons.
Justice Byron R. White: And McDonald might have said, yes, I did tell so and so and I killed the Liberty.
Mr. Peter Westen: He might -- but he most likely would have denied it for these reasons.
Justice Byron R. White: Let's assume he had denied it
Mr. Peter Westen: If he had denied it, which is what Chambers expected because McDonalds on preliminary hearing, he had already denied talking to anyone else about the shooting or having confessed to anyone else before his written confession.
If he had denied it, Chambers would have been left with an answer that he couldn't impeach and could not follow up because the trial court had already ruled that --
Justice Byron R. White: It would have been tough, he would have been in better shape than he is now --
Mr. Peter Westen: That's a question perhaps a trial strategy --
Justice Byron R. White: That's what this case is all about.
Mr. Peter Westen: But, I think it would have been madness to ask a witness for an answer that could not be impeached.
Chambers called McDonald because there was certain testimony he wanted from him and he examined him for that purpose only and until the court permitted him to pursue inquiry fully, he refused to elicit answers that he could not follow up.
Justice William H. Rehnquist: Mr. Westen, if the conclusion of the McDonald's cross-examination by the state, your client's counsel asked leave to cross-examine was denied, but then he didn't even make any effort to put any questions on what would we call redirect, I suppose.
I would think he could have gotten some of what he wanted in -- on redirect without necessarily having leave to cross?
Mr. Peter Westen: There are two answers of that.
Redirect makes some sense where there is a hope of rehabilitating a witness, where the witness is friendly, where he is prepared to support the party who called him.
But in this case, McDonald had denied on cross-examination everything he had said on direct examination, he repudiated it, and the only thing -- and there is almost nothing that can be done on redirect with the witness like that.
The reason why Chambers did not go ahead and asked individual questions on cross-examination, but ask him about his explanation for repudiating the confession and what he was really doing that night and about the truth of his alibi and about his 22-caliber pistol is that the judge had ruled, and made a ruling that he had no right to put a leading questions to his witness.
Justice Thurgood Marshall: Under the law of Mississippi in those conditions, if you asked a question, would he bound by the answer?
Mr. Peter Westen: He would have been, and that is what he had been told from the outset of trial.
Justice Thurgood Marshall: Well, isn't that the answer?
Mr. Peter Westen: That is our answer.
Chief Justice Warren E. Burger: Your position is that he was a hostile witness inherently, and that he should have the privilege of treating him that way from the outset.
Is that it?
Mr. Peter Westen: That's what was argued in the state court.
As far as this Court is concerned, as far as the constitutional question is concerned, McDonald became a witness against Chambers when he denied the truth of the facts on which Chambers rested his defense.
It was at that point that Chambers we submit had a constitutional right to cross-examine him, to probe the truth of his testimony, to determine if he was committing perjury, and to impeach him with independent evidence to show -- to discredit his testimony.
Justice William J. Brennan: Was McDonald ever indicted?
Mr. Peter Westen: No, he was not, And I should say that at the point where the justice of the peace dismissed charges against McDonald, the only evidence they had against McDonald was his sworn confession.
They did not know about the three oral confessions, and they did not know about the eye-witness.
Justice William H. Rehnquist: Was the eyewitness called at Chambers trial?
Mr. Peter Westen: Yes, he was.
Justice William H. Rehnquist: And did he testify that he had seen McDonald rather than Chamber shoot the --
Mr. Peter Westen: Yes, he did.
We urge this Court to reverse the conviction on two independent grounds.
First, Chambers was denied his right under the constitution to call Hardin and Turner as witnesses in his behalf, and to introduce McDonald's confessions to prove he was innocent.
The right to call witnesses, the right of the accused to call witnesses and present testimony is protected by both the Due Process Clause of the Fourteenth Amendment and the Compulsory Process Clause as the Sixth Amendment.
With respect to Due Process, we rely on a line of cases of which the leading case is Brady versus Maryland.
Brady stands for the general proposition that it is a denial of due process for the stake, for no good reason to deprive a defendant of exculpatory evidence that has a material bearing on his innocence.
In Brady, the state deprived the defendant of exculpatory evidence by withholding it from him.
In this case, Mississippi has denied Chambers the benefit of exculpatory confessions by withholding them from the jury.
The effect in each case is the same.
In each case, the state put a man on trial for his life, and then for no good reason, deprived him of the benefit of evidence that would have shown he was innocent.
Justice Byron R. White: Was your position that he should be able to call witness to testify as to an exculpatory confession, wholly aside from impeaching him?
Mr. Peter Westen: That's right, that's --
Justice Byron R. White: I mean, just as a general proposition even if McDonald never has been called at all, he should have been able to call the policeman and who would testify as to and out of court confession by some third party.
Is that your position?
Mr. Peter Westen: That is our position, but I should expand on it.
It's our position that Due Process and Compulsory Process entitled the accused to offer evidence to show he is innocent, unless the state can show some reason for withholding it from the jury and in this --
Justice William J. Brennan: Mr. Westen did you -- what you felt you should be committed to do was to produce the men to whom the all confessions were made?
Mr. Peter Westen: That's right.
Justice William J. Brennan: Not some policemen to testify that Chambers had admitted to them?
Mr. Peter Westen: We submit that we should have been permitted to put on the stand Sam Hardin and Berkley Turner to testify --
Justice William J. Brennan: Ones to whom alleged oral --
Mr. Peter Westen: That's right, to recite McDonald's out-of-court confessions.
Justice William J. Brennan: Yes.
Justice Byron R. White: Even though McDonald (Inaudible)
Mr. Peter Westen: No, because we think that, that's one reason why Mississippi is incapable in this case of making a showing -- of showing a reason for withholding the confession, the presence of McDonald, renders his out-of-court confession, sufficiently reliable.
It provided a sufficient basis for introducing his hearsay confession that there was no legitimate reason to keep it out.
There is another reason.
We think that --
Justice Harry A. Blackmun: When you get to that reason, do you go so far as to ask that the old Donnelly case --
Mr. Peter Westen: We do not think that court has to overrule Donnelly.
Donnelly was not a constitutional case.
It established a federal hearsay rule, and it did so on facts that were not nearly as compelling as they are in this case.
In Donnelly, the declarant was dead and there was no way to cross-examine him about the truth of his out-of-court statement.
In addition, there was only one confession as opposed to three as in this case and finally, there was eyewitness testimony in this case to corroborate the hearsay confession which is not the case in Donnelly.
Justice William H. Rehnquist: (Inaudible)go so far as it require a predicate for the hearsay testimony as most states I believe do by first asking McDonald as long as he is there, did you ever make a confession, oral confession to Berkley Turner?
Mr. Peter Westen: I think that -- and that relates to Mr. Justice White's question, and I think that kind of rule would make a lot of sense.
That's the proposed federal rule, that's the rule in California, but Mississippi does not have that rule.
It excludes hearsay confessions whether or not there is a predicate, whether or not there is a priors question to the witness to about whether he made the out-of-court statement.
It is our position that it would have served no purpose to ask, for the purpose of introducing McDonald's out-of-court confessions for that truth as hearsay, the prove Chambers was innocent, there was no purpose served by asking McDonald in Mississippi.
Justice William J. Brennan: Well, then I gather your submission is that you should have been permitted to put on Hardin and whatever the chap was and testify what McDonald have told them not for impeachment purposes but affirmatively on your defense?
Mr. Peter Westen: That's right, there are two arguments we made.
The first is the Chambers had an affirmative right to show he was innocent, by offering evidence and --
Justice William J. Brennan: And somebody else that --
Mr. Peter Westen: That it was not he but someone else who committed the crime.
And we submit that under the decisions of this Court in California versus Green and in Dutton versus Evans, there is no legitimate ground fro withholding those hearsay confessions to exculpate Chambers.
In Dutton versus Evans, the Court -- in Dutton versus Evans, the court --
Justice Byron R. White: That's as long as McDonald (Inaudible)
Mr. Peter Westen: Excuse me?
Justice Byron R. White: As long as McDonald is subjected to an examination?
Mr. Peter Westen: We think that California versus Green, and Dutton versus Evans are cumulative in this case.
Both factors are present -- under the standard in California versus Green, the declarant was present, under the standard in Dutton versus Evans, the statement was a spontaneous declaration against penal interest.
It carries the language of plurality opinion such indicia of reliability, that they can be introduced in satisfaction of the strict constitutional standard of the Confrontation Clause.
In this case --
Justice Potter Stewart: I have an understanding that basically this case is – 180 degrees offset from either Dutton against Evans or the Green against California.
There the claim was, the constitutional claim was, that the Sixth Amendment permitted -- did not permit those exceptions to hearsay rule.
In this case, you're saying that the constitution including the Sixth Amendment requires that Mississippi make these exceptions to hearsay rule, that's exactly the opposite claim,isn't it?
Like I have got this --
Mr. Peter Westen: In many ways we are -- in some ways, perhaps it's the converse of Dutton and of California versus Green, but for this reason.
In California versus Green and in Dutton, the state offered hearsay against the accused under its own rules of evidence, and the question was were those hearsay statements, so inherently reliable in their context that they could be introduced in satisfaction of the strict constitutional standard of the Confrontation Clause.
In this case, Chambers contends that he has a right under the Compulsory Process Clause of the Sixth Amendment which has nothing to do with confrontation, and Due Process Clause of the Fourteenth Amendment to offer the evidence in his favor affirmatively to prove his innocent, unless the state can demonstrate, that the hearsay is so inherently unreliable that the only way to protect the integrity of the courtroom is to exclude it all together.
And we submit that under the Federal Standard, and I should say that whether or not the hearsay is reliable, is itself a federal question.
And it is a federal question because it determines the scope of the defendants' right to prove he is innocent.
And in light of California versus Green and Dutton versus Evans, I see no way in which Mississippi can demonstrate that these statements are so unreliable that they have to be kept out to preserve integrity of the courtroom.
Justice Lewis F. Powell: Questions that were asked you by Mr. Justice White?
Let us assume for the moment that McDonald was not in the courtroom and not available and no one knew where he was, would your position be same as to be disability of the testimony of the three persons to whom their oral confessions were made?
Mr. Peter Westen: It is my feeling that where a hearsay statement is corroborated by an eyewitness, and is corroborated by the declarance on written confession, and corroborated by independent oral confessions, and is a declaration against penal interest, and is spontaneous and other than on the scene at the crime, defense of the declarant, that it is sufficiently reliable to be introduced in his favor.
But, the court doesn't have to decide that because the declarant was present here.
I think it is important--
Justice Lewis F. Powell: (Inaudible) And it is that in effect the totality of the circumstances to see whether or not the evidence could be admitted that he was inherently reliable?
Mr. Peter Westen: Well, perhaps I have mislead you Mr. Justice Powell.
It's my position that the Due Process Clause and the Compulsory Process Clause entitle the accused to offer any exculpatory evidence, that has a material bearing on his innocence unless the state comes forward and makes it showing that the evidence is so unreliable that it has to be kept out.
So it is not the accused to have to demonstrate that it is reliable, it is the state that has to demonstrate that it is inherently unreliable.
Justice Byron R. White: But this is question that's historic rule that (Inaudible)
Mr. Peter Westen: There is a hearsay rule and there is a state and --
Justice Byron R. White: But it hasn't – the (Inaudible) hasn't the rule regularly (Inaudible) accused may not simply call somebody to testify to a third party confession.
Mr. Peter Westen: That is the rule that perhaps --
Justice Byron R. White: It has been (Inaudible) the federal rule.
Mr. Peter Westen: The rule in Federal Courts which has been established in Donnelly versus United States to which Mr. Justice Blackman referred, establishes that standard, that establishes that proposition --
Justice Byron R. White: How about the State cases?
Mr. Peter Westen: And the States are generally in agreement with Donnelly about that but I --
Justice Byron R. White: Did the State every time required the demonstration other than citing (Inaudible)
Mr. Peter Westen: It's our position that the state has the burden of demonstrating a persuasive reason for preventing the accused from proving he is innocent.
As per the hearsay rule as you would referring to Mr. Justice White, Donnelly itself has been severely questioned.
It would be abolished by the new proposed federal rule of evidence, the dissent by Mr. Justice Holmes is slowly becoming the prevailing position in all of recent states that have recently codified their laws of evidence.
But we are not making the argument as a general matter that declarations against penal interest should always be admissible.
We're making the -- it's our possession that in a criminal case, where there is practically no evidence against the accused, and where it is quite possible that he is being tried for a crime to which someone else committed, and he has --
Justice William J. Brennan: Why Mr. Westen is it that a totality approach as Mr. Justice Powell suggested?
What you are now suggesting as I understand it is at least in the facts of this case where there is so little evidence, otherwise against Chambers, there is a little evidence.
Mr. Peter Westen: If this were a case like Dutton versus Evans in which there were 19 witnesses against the accused who all pointed the finger at him, there might be some question about whether he could offer a heresy confession to prove that he didn't do it.
Justice William J. Brennan: And I ask you again why is this as Mr. Justice Powell suggested, argument for a totality approach in this context?
Mr. Peter Westen: I am not sure that I know what you mean by totality.
I think the question is, is the statement exculpatory, is it material?
Justice William J. Brennan: Well, what I mean is, that whether or not in the context of this particular case, he should be permitted it.
That you are not arguing that necessarily there should be a general proposition that always exculpatory statement should be admitted?
Mr. Peter Westen: Well, the general propositions on which we rest our argument is that accused does have an affirmative right to prove he is innocent unless the state can make some showing and that's in this case, it is we submit absolutely untenable to argue that out of court statements confessions are unreliable.
Chief Justice Warren E. Burger: But you have to make this on a constitutional basis, not on a supervisory power basis?
Mr. Peter Westen: Oh, that's right.
The constitutional basis is -- I refer the Court to the opinion on the last day of the term in June and the case holding that parolees are entitled to a hearing before they are -- before their parole is revoked.
The Court said in that opinion, that the due process entitles an accused to offer evidence to show he is innocent and to confront the witness is against him.
That's our position, that there is an affirmative right to an accused to make out a defense, and to offer evidence that is reliable and persuasive, and material to his innocence, and as our second ground which I haven't discussed yet and probably won't reach, that the accused has a right to confront and impeach, cross-examine witnesses against him.
Chief Justice Warren E. Burger: And he became a witness against in that sense when he repudiated his confession, that's your argument?
Mr. Peter Westen: --and when he denied the truth of Chamber's affirmative defense.
Perhaps I'll reserve remainder of my time for rebuttal.
Chief Justice Warren E. Burger: Mr. Hancock, either now or at sometime in your argument, would you address yourself to the situation, a hypothetical situation that I will give you now?
What would be the situation under Brady if all three of these witnesses had gone through the prosecutor or the police, and told them of this confession and let's add that McDonald himself went to the police and told them what he told the others.
Now the prosecution never disclosed that to anybody, and it was never discovered until after a conviction.
What would be the situation in this case under Brady and subsequent cases?
Argument of Timmie Hancock
Mr. Timmie Hancock: I believe probably under such circumstances it would be the duty of the prosecution to inform the defendant or petitioner here of any evidence that was favorable to him, and that the denial of the state to do such would be certainly considered by this Court and --
Chief Justice Warren E. Burger: Now in this case then we have -- essentially if it is not the question of what use the defense can make of that information after they discover it?
Mr. Timmie Hancock: That is correct.
I think here -- start out saying that the state put on their case here.
There is no question as to the sufficiency of the evidence raise.
The state in putting on their case introduced witnesses who stated that they saw Leon Chambers do the shooting.
The Jury was justified from --
Justice Thurgood Marshall: (Inaudible)witness who said that they saw Chambers do the shooting?
Mr. Timmie Hancock: One witness testified that he --
Justice Thurgood Marshall: I thought you said witnesses?
Mr. Timmie Hancock: One witness testified that he saw Chambers when he actually pulled the trigger and he saw the wounded man flinching as his bullets hit him.
Another witness testified that he saw Leon Chambers bring his hand down and about that time, he heard the shot fired.
Justice Thurgood Marshall: These were policemen?
Mr. Timmie Hancock: These were policemen.
Justice Thurgood Marshall: And they arrested Chambers probably as a --
Mr. Timmie Hancock: Oh, Chambers was shot immediately thereafter by the man whom he shot. Chambers shot Aaron Liberty, who was a policeman.
At that time, Aaron Liberty fell back and then he turned around and fired one shot into the air and then shot Leon Chambers.
Leon chambers was carried to the hospital.
Justice Thurgood Marshall: Was he arrested?
Mr. Timmie Hancock: The sheriff, the testimony of the sheriff was to the fact that he was considered him to be under arrest.
Justice Thurgood Marshall: He considered him to be under arrest.
When was he arraigned?
Mr. Timmie Hancock: He was arraigned though --
Justice Thurgood Marshall: A year later.
Mr. Timmie Hancock: I believe he was -- it was sometime later, I do not remember the exact time.
Justice Thurgood Marshall: Any explanation for that?
Mr. Timmie Hancock: Well, Leon Chambers during this time was --
Justice Thurgood Marshall: You have a case where you have three policemen who saw the crime of murder, and it took them to get around to arraign him.
Isn't that strange?
Mr. Timmie Hancock: Well, I think that depends to some extent upon the physical condition of Leon Chambers at the time.
Justice Thurgood Marshall: Well, when did Chambers get out of hospital?
Mr. Timmie Hancock: Pardon sir.
Justice Thurgood Marshall: Well, when did he get out of hospital?
Mr. Timmie Hancock: I did not know.
This was not brought up in the trial, I do not believe.
Justice Thurgood Marshall: But you do not have any reason for why it took him a year to get around to --
Mr. Timmie Hancock: No Your Honor, not based upon the record, I do not, but this question--
Justice Thurgood Marshall: Did you have (Inaudible)
Mr. Timmie Hancock: I do not know.
The record does not show that.
Justice Thurgood Marshall: Well, does the record show when a warrant of arrest was issued?
Mr. Timmie Hancock: Pardon me?
Justice Thurgood Marshall: Does the record show when a warrant of arrest was issued?
Mr. Timmie Hancock: I do not believe it does.
Justice Thurgood Marshall: I assume he was he arrested?
Mr. Timmie Hancock: He was arrested.
Justice Thurgood Marshall: But you do not know when?
Mr. Timmie Hancock: He was arrested I believe within a week after he was shot.
Justice Thurgood Marshall: Was he out on bail?
Mr. Timmie Hancock: He was released on bail.
Justice Thurgood Marshall: Is that in the record?
Mr. Timmie Hancock: I believe yes sir it is, he was released on $15,000 bail I believe.
Justice Thurgood Marshall: That was a week after the shooting?
Mr. Timmie Hancock: I am not sure when he was released, that question was not raised previous to this time.
The petitioner now states that he was not allowed to put on his affirmative defense.
However, the petitioner was allowed to introduce a witness who testified that he saw Gable McDonald shoot Leon Chambers.
Now, Gable McDonald was not the defendant.
The petitioner tried -- attempted to show that he was innocent by showing that another man was guilty, this man being Gable McDonald.
As I said, the Court, Trial Court allowed the petitioner to put on testimony of an eye-witnesses, of a person who said he was -- that he was an eye-witness and that he saw Gable McDonald shoot Leon Chambers.
Also, the defendant was allowed to call Gable McDonald as a witness.
Gable McDonald admitted that he confessed to this crime.
He said that he went to the Petitioners' Counsel, Petitioners' Lower Court, to Trial Court, he went to Petitioners' Council and gave them a confession.
Now, this confession was introduced into evidence.
The Court allowed this confession to be introduced, and question, I do not believe that they were required to under the decision of this Court in Donnelly and universal rule almost, but the trial court allowed this confession to be introduced into evidence, and the state questioned Gable McDonald and Gable McDonald testified that he did give the confession.
And he testified that he gave the confession because he was promised that he would get some money for it, if he would confess.
That the police and law enforcements officers were never know about it and that it would ultimately wind up in a lawsuit wherein he would get one-third of the money, it was brought about in this lawsuit.
So McDonald repudiated his confession and he explained why.
At that time, Leon Chambers brought on three more witnesses and he asked them, if Gable McDonald and confessed to them the prosecuting attorneys objected to this on the grounds that it was hearsay.
Well, certainly it was.
These statements were introduced for the purpose of the truthfulness of those statements.
Well, the person who knew the truth if those statements were made by Gable McDonald, was Gable McDonald himself.
He is only individual who would know if he made those statements and if whether they were true.
Justice Byron R. White: The argument was available for the representation (Inaudible)
Mr. Timmie Hancock: Right, right.
I believe that is true.
I think the state allowed more evidence, more affirmative evidence for the defendant to go in, then the state was required to do so.
Chief Justice Warren E. Burger: Was McDonald asked to whether he had made these oral admissions to the --
Mr. Timmie Hancock: No Your Honor, he was not.
The petitioner now states that he did not ask him because the trial court refused to allow McDonald to be questioned as an adverse witness.
Justice Harry A. Blackmun: As a matter of fact, cannot an argument be made that the oral confessions are much more reliable than the written one in this case?
Because they were -- if they did take place, they took place immediately that night, whereas the written confession came along three or four months later.
Mr. Timmie Hancock: I do not believe it necessarily can.
Gable McDonald would be the only one who -- Gable McDonald was available as a witness and he did testify in this trial.
He would be the one to testify yes, I gave those confessions, and those confessions were truthful, or yes, I gave those confessions and they were false, or no I do not give those confessions.
The testimony of these other witnesses would be based purely up on hearsay.
They would not know the truthfulness of them.
Chief Justice Warren E. Burger: That unless he claimed, unless McDonald claimed that these other three people to whom he made the oral admissions had also promised him money, would they not be those three confessions; would they not be as Justice Blackman suggested, more cogent, more reliable than the one that he said was given for a promise of money?
Mr. Timmie Hancock: I do not necessarily think so, because after this great deal of time, the Gable McDonald knew that an investigation was being conducted into the trial.
He knew that prosecution would be coming about and under these circumstances, he then made his written confession.
So I do not believe that there would be any greater grounds for the admissions to be truthful soon after, then it would have been at the later date.
Justice Lewis F. Powell: (Inaudible) one of the buddies to whom the oral confession was made was allowed to testify?
Mr. Timmie Hancock: He did testify not as to the confession because an objection to that was sustained upon the grounds that it was hearsay.
But one of the parties who was going to testify to this, did testify and he testified that he saw Gable McDonald.
The witness testified that he saw Gable McDonald shoot in the --
Justice Lewis F. Powell: Did not the court instruct the Jury to disregard that, that testimony?
Mr. Timmie Hancock: I do not believe that Your Honor.
Justice Lewis F. Powell: I still construed the records at page 73 of transcript.
Perhaps I am wrong, but (Inaudible)
Mr. Timmie Hancock: I am not being mistaken, but I do not believe that they sustain an objection to his testimony that he saw --
Justice Lewis F. Powell: Was the witness name Hardin?
Mr. Timmie Hancock: Oh, yes.
Justice Thurgood Marshall: (Inaudible)
Mr. Timmie Hancock: Yes, that has to do hearsay objections on whether or not a confession was given.
Justice Potter Stewart: The oral confession.
Mr. Timmie Hancock: The oral confession, this is not sustained objection to his eye-witness testimony that I saw Gable McDonald shoot Leon Chambers.
Justice Thurgood Marshall: (Inaudible)
Mr. Timmie Hancock: I am not sure that it is end of appendix, it is in the trial.
It is in the trial that Gable McDonald testified that he -- Hardin testified that he did see Gable McDonald shoot Leon Chambers.
The Gable McDonald, Leon Chambers rather could have asked Gable McDonald if he in fact made these other confessions, but he did not do so.
He chose not to ask him.
He says he could not because he had requested the trial court to allow him to question Gable McDonald as an adverse witness.
Now, under Mississippi rules, a petitioner, a defendant is allowed to question a witness as an adverse witness, a witness whom he calls as an adverse witness when it is shown that the testimony of the witness takes him by surprise or he is hostile.
Well, there was no showing here in this case but in any event, I don't think there is measured significance to the word cross-examination.
He could have still ask Gable McDonald, did you make another confessions?
He never did this, he never questioned Gable McDonald at all.
Then he come back on redirect examination after Gable McDonald said no, the confession -- I did give a previous confession and that confession was not true.
Justice William H. Rehnquist: Under Mississippi practice Mr. Hancock, is the trial judge permitted or authorized to allow leading questions in particular questioning situations even though the witness is not an adverse witness?
Mr. Timmie Hancock: This is a matter within the discretion of the trial judge, but here no attempt was made at that.
Justice Thurgood Marshall: How about the dissent, and judge's explanation to that?
He says that the answer is that the court would not permit the defendant to cross-examine.
Mr. Timmie Hancock: Well, as I said, there was no attempt made to cross-examine and this is as I said, there is nothing I do not --
Justice Thurgood Marshall: This is Judge of your Supreme Court, he had no problem with it.
Mr. Timmie Hancock: But, maybe this was a descending opinion, but as I said, I don't think there is any magic meaning to the word cross-examination.
He could have asked him on direct examination, not only a lead question possibly.
Justice Thurgood Marshall: Well, wouldn't he be bound with answer?
Mr. Timmie Hancock: Well, maybe the testimony that Leon --
Justice Thurgood Marshall: Then, what is the law in Mississippi?
When you ask your witness a question, are you not bound with answer?
Mr. Timmie Hancock: We ordinarily are bound by the answer however the answer might be such as to allow the defendant to then question.
Justice Thurgood Marshall: The judge has already said he cannot do that.
Hasn't the Judge already said that?
Mr. Timmie Hancock: That was an after the fact opinion.
Justice Thurgood Marshall: But, didn't the judge said you cannot cross-examine this witness?
Mr. Timmie Hancock: No Your Honor, he did not in lower Court.
Justice Thurgood Marshall: What did he say?
Mr. Timmie Hancock: The petitioner filed a motion and then later requested the trial court to proclaim Gable McDonald to be an adverse witness.
At the beginning of the trial, when the trial was -- when the motion was first made, the judge said, I will reserve my ruling on that later, when Gable McDonald is introduced as a witness.
Gable McDonald was introduced as a witness.
This motion was made to the Trial Court and the Trial Court overruled it.
At that time, there was no showing that any of Gable McDonald's testimony was -- took the defendant by surprise.
He was willing and able to answer every question that was asked and that they are willing to testify.
Justice Thurgood Marshall: Did or did not the judge give him the right to cross-examine him as a hostile witness?
Mr. Timmie Hancock: He did not give him --
Justice Thurgood Marshall: Under those circumstances, would not he be bound by any answer that witness gave?
Mr. Timmie Hancock: Well, I would think that would depend upon the answer.
Justice Thurgood Marshall: Well, what is law in Mississippi?
When you call your own witness and he gives you an answer, you are going to impeach him?
Mr. Timmie Hancock: The law in Mississippi as is in most jurisdictions now is that you cannot impeach your own witness under ordinary circumstances.
Justice Thurgood Marshall: So if he had asked a question, he had been bound with answer?
Mr. Timmie Hancock: If Gable McDonald had said, well, I refuse to answer that at that point, he would become a hostile witness and he could have been cross-examine under Mississippi law.
Justice Thurgood Marshall: Well, if McDonald did answer no, I did not kill him, you did.
He would be bound with an answer?
Mr. Timmie Hancock: Yes.
Justice Thurgood Marshall: And you do not understand why he did not ask you?
Mr. Timmie Hancock: Well, I believe you have to look at the totality of the circumstances that goes to matter of the trial strategy.
I cannot read into the trial record, the trial strategy of why he elected not to question, and why he did not.
But, in any event, we would consider that if there were error, it was a harmless error because there was testimony to the effect that was put before the jury that Gable McDonald shot Aaron Liberty, and eye-witness -- the witness testified that he was an eye-witness to this.
Gable McDonald's confession was put before the jury that he on one occasion confessed to the crime.
We do not believe this would be devastating in anyway.
We believe under the circumstances and rulings of the trial court it was proper that he did receive a fair trail and if there were any errors, it was purely harmless error.
Chief Justice Warren E. Burger: Thank you Mr. Hancock and Mr. Westen, you have about one minute left.
Rebuttal of Peter Westen
Mr. Peter Westen: I will refer the Court to our reply brief and all of these questions concerning the failure to ask a question and the failure to lay a foundation, but I would like to say a word about it to Mr. Rehnquist, and Mr. Justice White.
Chambers offered confessions for two different purposes.
First, as affirmative evidence of his own innocence. For that purpose, there is no such thing as a proper foundation in Mississippi.
There is no rule in Mississippi that to offer hearsay for its truth, you have to first ask the witness, that the witness understand whether or not he made the out of court statement
.That might be a good rule.
It is a rule in California, it is not the rule in Mississippi.
As for the -- we have offered a confession for an entirely different purpose, an opposite purpose.
We offered the confession to Albert Carter in order to impeach Gable McDonald.
In order to lay the foundation for an impeaching confession, it is necessary to ask the witness whether or not he made the out of court statement.
But, we were not able to do that at the trial court, because at that point in time, the trial court had ruled that we could not cross-examine McDonald, and the question put to McDonald whether or not he had made an out of court confession, inconsistent with what he had just testified to, to the state would have been in the nature of cross-examination.
Justice William H. Rehnquist: Mr. Weston, turning to page 146 of your appendix, am I right in thinking that the only time during the trial proceedings that any constitutional dimension was suggested to these rulings of the trial court was in the motion to set aside the verdict where at paragraph six of that motion you say the trial of the defendant was not in accord with fundamental fairness guaranteed by the Fourteenth Amendment of the Constitution of United States?
Mr. Peter Westen: Yes, and for the above reasons, for the reasons that Chambers was unable to offer a hearsay confession to prove he was innocent, and to cross-examine McDonald.
Justice William H. Rehnquist: (Inaudible) had motion for the above discussion?
Mr. Peter Westen: No, but I think it's implied because the above grounds are the errors that -- are the specific errors alleged.
The argument was raise in the Mississippi Supreme Court specifically even if it had not been, it would have been before that court properly under the Mississippi plain error, but it was raised.
Justice William H. Rehnquist: But these are the opinions in the Supreme Court of Mississippi, you can treat if the matter of the constitution?
Mr. Peter Westen: I think that is right, but that is because they did not bother with them.
The questions were properly before them, they were passed upon necessarily, and they were implicitly denied.
Chief Justice Warren E. Burger: Thank you Mr. Westen.
Thank You Mr. Hancock.
The case is submitted.