HERRING v. NEW YORK

Transcript: 

Argument of Diana A. Steele

Chief Justice Warren E. Burger: We'll hear arguments next in 6587, Herring against New York.

Ms. Steele?

Ms Diana A. Steele: Mr. Chief Justice and may it please the Court.

The issue on this appeal is whether Section 320.23 (c) of the New York Criminal Procedure Law which authorizes the trial of judge in the non-jury trial to preclude closing arguments, violates the Due Process Clause of the Fourteenth Amendment, and the right to counsel provision of the Sixth Amendment.

The Section in issue here is contained in a provision, governing the nature and conduct of the non-jury trial and provides that the court may in its discretion permit the parties to deliver summations.

It was passed in 1971 and prior to that date, no statute covered the conduct of the non-jury trial.

In this case at the close of all the evidence, the counsel specifically requested to be heard on the facts on behalf of his client and the court invoking the statute, denied his request.

Eight minutes later, he delivered the guilty verdict.

It's our position that the statute invoked is unconstitutional both by its face and as applied because it deprives the defendant of his due process right to be heard and his right to the effect of assistance of counsel.

I think it's basic to our adversary system of criminal justice that defendant has a right to be heard on his own behalf, and that that right is really inseparable from his right to be heard by counsel at every criminal -- at every critical stage of our trial process.

I think this tenant is reflected in the historical development and protection of the right to closing arguments by the state courts, and I think it's also reflected in the decisions of this Court since Powell versus Alabama which have held that in certain of counsel's professional functions are inherent in the defendant's right to the guiding hand of counsel.

Chief Justice Warren E. Burger: How long should the summation be allowed Ms. Steele?

Ms Diana A. Steele: Well, I think that the court has discretion to stop closing argument and I think that his discretion is reviewable on appeal.

This is the way it's been handled in the jury trial context where the right has been established really since that 1827, it was first to recognized.

And I think when the court cuts off closing argument, there maybe a colloquy demonstrating what more counsel wanted to say and wasn't able to say, and I think that that's readily reviewable on appeal.

But the absolute preclusion of closing arguments doesn't include any indication of what counsel would have said were he permitted to, and I think that in this case, the statute authorizes that absolute preclusion.

Justice Harry A. Blackmun: Are you saying that there's no right of review under the New York system as a matter of discretion?

Ms Diana A. Steele: Now under the New York statute, an abuse of discretion would be reviewed.

Justice Harry A. Blackmun: It is reviewable?

Ms Diana A. Steele: It is reviewable, yes.

But it's my position that there is no situation in which the court can preclude summations all together and have that not constituted an abuse of discretion because it really is depriving the defendant of his right to be heard.

Chief Justice Warren E. Burger: We will resume at that point at 1 o'clock Ms. Steele.

[Luncheon Break]

Ms. Steele, you may continue.

Ms Diana A. Steele: May it please the Court.

I'm picking up where I left off.

I think that this statute in question really runs counter, both to the historical development of closing argument by the states, and also counter to this Court's decisions which have recognized at the benefit of certain of counsel's professional skills are inherent in the guiding hand of counsel concept to which a defendant is entitled.

Justice William J. Brennan: Ms. Steele, is this statute applied to all arguments in the appellate courts?

Ms Diana A. Steele: No, it does not.

It's --

Justice William J. Brennan: And it did the difference?

Ms Diana A. Steele: Yes.

I think that would be a different situation Mr. Justice Brennan because in the trial -- in the appellate court, you have an opportunity to file a brief.

So, you do get to insure that the theory of your case is presented to the decision maker and you can ensure that that everything you want to present to them is presented.

But in the trial process, there's really -- there's nothing.

The judges left with the disparate pieces of the evidence that the defendant is really left to the mercy of the judge to weigh all the evidence and then hopefully, to draw the inferences that counsel would have urged upon him had he had an opportunity to do so.

Justice William H. Rehnquist: That isn't entirely true here though is it?

I mean, Mr. Adams was able to make an opening statement at the beginning of the trial and he argued at the close of the state's evidence, the inferences he thought should be drawn and urging the dismissal of the various counts.

It was just at the close of the evidence that he wasn't allow to argue.

Ms Diana A. Steele: It was after -- everything was elicited that he was -- that in effect, the guiding hand of counsel was withdrawn.

I think that --

Justice Potter Stewart: There's quite of difference between a trial and an appellate procedure in that at the trial, particularly in a bench trial, there's no questions of law really, the factual issues to be resolved?

Ms Diana A. Steele: Yes, that's right.

Justice Potter Stewart: And just the offset in the appellate process?

Ms Diana A. Steele: Yes.

I think that's true.

Justice Potter Stewart: I don't know which way it cuts, but that issue --

Ms Diana A. Steele: Well, the appellate court I think jurisdiction to -- in New York at least can we determine facts, but they don't redetermine them with the same -- with the same standard that the trial court does.

They don't redetermine credibility.

Chief Justice Warren E. Burger: They sometimes consider sufficiency of the evidence when its urged it on, do they not?

Ms Diana A. Steele: Yes.

They do consider sufficiency of the evidence.

Chief Justice Warren E. Burger: What about the Courts of Appeals?

Today they are dispensing with all oral argument on sufficiency of the evidence cases, including cases raising the issue of sufficiency of the evidence?

Ms Diana A. Steele: Well, I think that when you have a brief, I think you're in a different position.

I think that you're not as a stronger position to urge the defense because you don't have the give and take that's inherent in that oral presentation.

But I think that that you can at lease insure a minimal level of presenting your theory of the case in appellate court, but you really can't do in the trial process unless you were permitted to submit.

Justice William J. Brennan: And yet I suppose Ms. Steele at least for some judges, it's easy to hear and put all that listening than they do at reading?

Ms Diana A. Steele: Yes.

I think that could --

Justice William J. Brennan: -- with that kind of judge you just have in plea?

Ms Diana A. Steele: Well for that kind of judge, yes.

I think that you would be in a different position if counsel had a right to submit a written document in support of his position at trial?

Justice William J. Brennan: That's why you're here for the statute?

Ms Diana A. Steele: It wouldn't satisfy me, no because I think that in a summation, particularly in a non-jury trial, there is an opportunity for give and take.

There's also the rapport between counsel and the judge would put you in the better position I think.

Justice William H. Rehnquist: Well, how much rapport are you going to have it?

If the judge says I don't like the hear summation.

That's not my custom to hear him and the lawyer says, well the law requires you to hear him, so I'm going to go ahead and give one anyway?[Attempt to Laughter]

Ms Diana A. Steele: Well, I think that that would be something in the judgment of counsel I think that he would -- to judge the effectiveness of his summation in that situation.

I think even the most cynical judge may have his mind jarred by counsel's presentation, and may in fact have something pointed up to him.

I think it's important in the non-jury trial, particularly to ensure the right to closing argument because I think it's important for the integrity of the fact finding process.

A judge makes his decision totally alone in a non-jury trial.

Unlike the jury trial where the decision process is collective and I think that the shortcomings of individual jurors are compensated by this process.

In the non-jury trial, the judge gets no input at all into his decision making process.

Justice Potter Stewart: Is it -- excuse me.

Chief Justice Warren E. Burger: What if the judge said I have many other things to do.

There's a tape recording here, go ahead and make your argument and I'll -- if you will excuse me please?

Ms Diana A. Steele: I think that would put me in a different position.

I think that I wouldn't be a deprivation entirely of the right to the guiding hand of counsel, but for the same reason says the written documents I think that you wouldn't have the give and take essentially.

I would be comparable I think to the written brief.

Justice Potter Stewart: Is it customary in the New York trial courts to have trial memoranda, some jurisdictions -- some never heard of it.

Ms Diana A. Steele: On issues of law I think it is, but on summations, not on issues of fact I don't believe.

Justice Thurgood Marshall: Ms. Steele, what about the different kind of case.

You got a case where the one prosecuting witness and the defendant, that's all there is and the case took a whole day.

Would you have to have argument now?

Ms Diana A. Steele: If counsel wanted to be heard, I think he would have a right to be heard on certainly in the jury trial context, regardless of the weight of the evidence, counsel would have a right to present a summation.

I think that really to say that he wouldn't be entitled to in that -- to a summation in that sense is to conclusively presume in spite of his thought that he has something to say that he didn't --

Justice Thurgood Marshall: Even assuming that the judge could not remember a whole day, what happened?

Ms Diana A. Steele: I think that there are two --

Justice Thurgood Marshall: If the judge did get that from the lawyer, I think the judge was given this bias attention and let him argue, and I did make a mistake in the word I use, his biased attention.

Ms Diana A. Steele: Well --

Justice Thurgood Marshall: Can you tell the judge he doesn't remember what happened a half hour ago?

Ms Diana A. Steele: Oh, I think that there are two reasons that we must require closing argument in a non-jury trial.

One is to insure that the judge will have an accurate presentation of the facts and will remember accurately.

Justice Thurgood Marshall: But he's not taking notes?

Ms Diana A. Steele: Yes Your Honor, but --

Justice Thurgood Marshall: Doesn't he have to make findings?

Doesn't the judge have to make --

Ms Diana A. Steele: No.

Unlike the federal non-jury trial, in New York where counsel can request findings of fact in conclusion of the law, in New York, they don't have that rule.

They’re --

Justice Thurgood Marshall: But the rule, but he can request it?

Ms Diana A. Steele: He can request that, but there is no assurance that he would get it.

Justice Thurgood Marshall: But suppose he got it, then would he still have to have argue it?

Ms Diana A. Steele: Yes, I think that he would because while findings of facts in conclusion of law protect the accuracy of the judge's memory because it ensures that he goes over the evidence, there's also another basis for requiring closing argument, and that is --

Justice Thurgood Marshall: It was a lawyer himself, you know, he can --

Ms Diana A. Steele: Yes Your Honor, but I --

Justice Thurgood Marshall: He can't remember like a lawyer, that's a tried in the case, can he?

Ms Diana A. Steele: Yes, but I think it's critical that the defense get its --

Justice Thurgood Marshall: But he shouldn't have the biased opinion of the lawyer?

Ms Diana A. Steele: Well, I think that another prong of this argument is that the defendant is entitled to have his theory presented to have --

Justice Thurgood Marshall: His theory is that he wasn't there.

He's already testified as to his theory.

In my hypothetical, he's testified.

Ms Diana A. Steele: Yes, he has but I think that the defendant is entitled to have his attorney draw the inferences, favorable to the defense on that evidence.

I mean that's what counsel is therefore to present the defense side of the case, and in cross-examination, he may have elicited things that without emphasis because he didn't want to emphasize things that were damaging to the prosecution.

And in closing argument, counsel then can draw those inferences and really present the defense theory to the fact finder.

Justice Thurgood Marshall: Judge says “It's a very simple case and I don't you see why you need to argue” and the lawyer says “But I insist on arguing.

” And you insist that he has that right and I submit as a lawyer who's tried a few cases that that's not going to help the defendant at all?

Ms Diana A. Steele: That maybe true Mr. Justice Marshall, but I think that counsel is entitled to make the decision that this will not help the defendant at all and waive closing argument.

I think that that's a decision which counsel must be entitled to make because even --

Justice Thurgood Marshall: If the judge says “I don't want any closing argument” and counsel said “But I insist you have closing argument.

” You think counsel will have that right to cut his own throat?

Ms Diana A. Steele: Yes, I do.

Justice Thurgood Marshall: -- along with his client's throat?

Ms Diana A. Steele: Yes.

I think that that's counsel should be entitled to make that decision.

But I think that you assume that counsel is making perhaps the wrong decision, but I think the decision and presenting that defense theory must rest with counsel and not with the court.

I think that -- well particularly in our urban courts where the case load pressure is very high, judges do become cynical.

They maybe inattentive for any number of reasons, and I think that in those situations, closing argument can easily be dispensed with precisely when it shouldn’t because our trial process is based on the assumption that a verdict will be rendered upon a fair evaluation of the evidence.

Justice William H. Rehnquist: Mr. Adams really didn't press his point very much, it strikes me from reading page 92 of the transcript.

He says “Well, can I be heard somewhat on the facts?

” And then the judge says “Under the new statute, summation is discretionary, and I choose not to hear summations.

” That he didn't go on and say “Well, even if you don't want to hear summations, I insist I have a right to make one.

” He seems to kind of accept the judge's determination.

Ms Diana A. Steele: Well, under the New York statute, the judge did have the discretion, and I think there wasn't too much more for counsel to say.

He did request to be heard and when the statute was invoked, he was denied the right and then the defendant was remanded right after that.

Justice Harry A. Blackmun: He made his record?

Ms Diana A. Steele: I think he did make his record, yes Your Honor.

Justice Harry A. Blackmun: Could I go back to while this maybe repetitious and the Chief Justice may have asked it, but if there is a right to summation, is there a right to a minimum time to summarize?

Ms Diana A. Steele: I think to that would vary on a case-to-case basis.

I think that it is within the court's discretion to limit summation, to cut-off summation, and that would be subject to review to see if the right had been infringed.

In the context of jury trial summations, that's the way it has been handled in the various states.

I think that of all those the cases in the footnote on page 14 of my brief, all but four of them arose in the improper infringement of the right when -- I think that it's readily reviewable because when the court tries to cut counsel off, counsel can presumably say “Well, but I didn't present this theory” and I think that the appellate court can go back and look and see if there was an infringement.

Justice Harry A. Blackmun: So, there is a standard of discretionary review then, so long as there is some time granted, but not --

Ms Diana A. Steele: Yes, that's right because I think in the very different position when the court has said “I've heard enough” from when the court says “I don't want to hear anything.”

Justice William H. Rehnquist: Of course, he'd been listening to counsel for several days in this case?

Ms Diana A. Steele: Yes.

In fact, he had been listening over -- to approximately three days that was spread over a five-day period, the weekend intervened, and I think you can fairly well presume that the judge did attend to other matters aside from this case.

Justice William H. Rehnquist: But what you're saying is that even though a judge is satisfied from hearing counsel over this period of time that counsel couldn't materially assist him in reaching a just decision on the facts, nonetheless, he's got to hear him?

Ms Diana A. Steele: I think that it is counsel's decision at the end of the evidence to consider whether he can assist the fact finder, whether his theory of the defense has been presented adequately to ensure that the judge will consider all the evidence.

I think that that's counsel's decision.

I think that -- I think that this Court's decision in Brooks versus Tennessee and in Ferguson versus Georgia point strongly to this effect because in -- well in Brooks, the Court struck down the Tennessee statute which required the defendant to be the first witness or loss his right to testify.

And there, the Court said that this was so critical to the defense that it had to be left to counsel's decision whether and when to put his client on the stand.

Even more on point, I think is Ferguson versus Georgia where the Court struck down the Georgia statute which precluded counsel from eliciting from the defendant his unsworn statement to the jury because in Georgia at that time, the defendant was incompetent to testify and so, he gave a unsworn statement.

And the Court there held that it was inherent really in the concept of the guiding hand of counsel to ensure that facts favorable to the defense were elicited in an orderly, coherence, and logical fashion.

I think that that function is precisely what comes into play in summation.

Counsel must in summation, deliver to the fact finder, the defense theory, he organizes it, he present it cogently because that's what he's been trained to do.

Justice William J. Brennan: Ms. Steele, I gather from your reply brief that it is a non-jury misdemeanor type of trial to which this statute applies?

Ms Diana A. Steele: An identical statute applies to it, yes.

Justice William J. Brennan: Yes, another but same kind of statute?

Ms Diana A. Steele: Yes.

Justice William J. Brennan: But tell me in this case, there was of course a waiver of jury trial, was there not?

Ms Diana A. Steele: Yes.

There was a waiver.

Justice William J. Brennan: Now, the state argues that that waiver of jury trial because this statute was on the books at the time when the waiver subsumed, and I gather you could waive jury trial without the assistance counsel, can't you in New York?

Ms Diana A. Steele: Yes, I believe you can.

Justice William J. Brennan: And that this waiver subsumes also where the discretion is exercised against a summation, a waiver of the right to some of it?

Ms Diana A. Steele: Yes, that is --

Justice William J. Brennan: What do you say to that?

Ms Diana A. Steele: -- the state's position.

I think that that argument has a no merit on --

Justice William J. Brennan: Why?

Ms Diana A. Steele: Because I think that it's putting in impermissible condition on appellant's statutory right to forgo a jury.

I think that the argument -

Justice William J. Brennan: But what -- how is that a constitutional argument?

All we can deal with here, the federal constitutional limitation.

Is that a constitutional burden?

Ms Diana A. Steele: Well, yes.

I think it is because it's requiring him to forgo his right to summation when he goes non-jury.

I think the analogous cases would be Green versus United States and North Carolina versus Pearce where the defendant was exercising a statutory right to appeal, and he was -- in North Carolina versus Pearce, he was penalized.

Justice William J. Brennan: Are there cases we've had are burden on the constitutional right to jury trial?

Justice Potter Stewart: Jackson?

United States against Jackson involving the Limberg case --

Ms Diana A. Steele: Yes, yes.

Now --

Justice Byron R. White: It's a burden on your state rights, it's a burden on your state rights the way.

I mean, you can -- if you want to sum up, you go ahead and have your jury trial.

Ms Diana A. Steele: Yes, but I -- well, as in North Carolina versus Pearce and in Green versus United States, that was the statutory right to appeal and yet, the Court didn't permit penalizing someone for electing to exercise that statutory right.

Here, he's elected to forgo with jury, and he's being penalized by --

Justice Byron R. White: For what the statute on its face that you may waive the jury trial if you also -- if you also waive the right to summation?

Ms Diana A. Steele: Well, if you assume that these two can be tied in together --

Justice Byron R. White: Well, suppose the statute had said on its face, “you may waive the jury trial if you waive the right to summation, but not otherwise?”

Ms Diana A. Steele: I think it would still be an impermissible condition.

Justice William J. Brennan: You'd be here attacking the statute on its face?

Ms Diana A. Steele: Yes.

Justice Byron R. White: You mean, you have -- that the constitutional right to waive the jury trial, or you tell there is?

Ms Diana A. Steele: No.

I don't think there is a constitutional right to waive the jury trial, no.

But I don't think that the state can place a condition which requires him to forgo a totally independent constitutional right.

The right to summation has no relation to the right to forgo a jury.

Justice Byron R. White: At least, I suppose you would say the first person has the right to the argue --

Ms Diana A. Steele: Yes.

Justice Byron R. White: -- that you have the right to say I never -- I never -- I have the right to claim that this was unconstitutional.

I never waived it.

I've read it and I knew it was unconstitutional.

Why certainly the complaint that I -- no, no, to claim my right, even if I loss, I should be able to you'll hope be on the ground to waiver.

Ms Diana A. Steele: No.

I think the waiver argument doesn't have any merit.

I don't think that there's any legitimate state purpose in requiring the penalty of foregoing a jury trial.

I think that the New York statute concerning the reasonable procedural regulations going to waiving the jury trial adequately preserves the state's interest on insisting in jury trials.

The only other conceivable interest that this would further would be speed and I don't think that the state has any legitimate state interest in making the non-jury trial, any speedier than it already is than the jury trial.

Justice Harry A. Blackmun: Ms. Steele, is this the only kind of case in the New York system where a statute provides for absence of a right to summarize?

On the civil side, there is right to summarize, is there a statutory right?

Ms Diana A. Steele: I do not know in the civil cases in New York --

Justice Potter Stewart: I thought your brief for summary in the briefs it said so.

Ms Diana A. Steele: Well, I think that two states have held that the right in the non-jury trial is absolute in the civil context.

In the civil jury trial, I believe that there's no question but you have a right to closing argument.

Justice Harry A. Blackmun: But there were a statute from the civil side similar to the one under attack here.

Would your case be any different?

Or are you here because it's only --

Ms Diana A. Steele: I'm here because I think that this is a deprivation of a criminal defendant's right to counsel, and his due process right to be heard on the evidence.

I think I would be in the different posture were this a civil case.

Justice Byron R. White: Are there any of the cases in other states or federal courts that agree with the decision at all?

Ms Diana A. Steele: Yes.

I believe that the weight of authority holds that there is a right to closing argument.

Excuse me.

Justice Byron R. White: Are the cases that are against you, other cases that are against you?

Ms Diana A. Steele: Yes Your Honor.

There are four jurisdictions that are against me.

Justice William J. Brennan: How close is that division?

Ms Diana A. Steele: There are nine jurisdictions that are hold that it is a fundamental right.

Justice William J. Brennan: On constitutional grounds?

Ms Diana A. Steele: On constitutional grounds.

There are two more states in pre-Gideon decisions that use their state constitutional guarantees of counsel.

And there are four jurisdictions which have refused to recognize the right.

In one of the --

Justice William J. Brennan: And holding, it is not a constitutional right?

Ms Diana A. Steele: Yes.

They've refused to recognize it.

One did it without opinion, I think.

Another said that it was the better practice to hear summation, and another was in the juvenile context.

I think in closing, I would simply like to reiterate that I think that the statute is really contrary to the historical development in preservation of the right to closing argument.

I think it really deprives the defendant of the benefit of counsel's professional skill which I think this Court recognized in Brooks and in Ferguson.

And finally, I think that is the right to closing argument, particularly in the non-jury trial is essential to the integrity of the fact finding process, where that fact finder is a single individual.

He's presumably fallible just like anybody else, and he may well be in an overburden court.

I think that those are the three basic reasons why a statute which deprives appellant of that right is violative of the Due Process Clause of the Fourteenth Amendment and the counsel provision of the Sixth.

Thank you.

Chief Justice Warren E. Burger: Very well Ms. Steele.

Mr. Morse?

Argument of Norman C. Morse

Mr. Norman C. Morse: Mr. Chief Justice and the Court -- may it please the Court.

It's obvious that the facts in this case did not require the trial judge to exercise any great retentive ability.

It seems to me that there were issues.

One was the issue of alibi which turned the course upon the testimony of the defendant.

The other issue was the -- and his employer who was I would say vague and evasive in his testimony as to when he saw him and so forth.

The other question I suppose would be bias, bias on the part of the complaining witness who said it happened to him and bias on part of the defendant seeking to avoid any consequences of his act.

It would appear to me that the factual determinations in this case were simple and were of the kind that the authors of the statute had in mind when they drew the statute that a judge seeing the facts openly and plainly without any abuse of discretion could say “I choose not to hear.

” And --

Justice Harry A. Blackmun: Mr. Morse, assure me as to one thing.

I think opposing counsel indicated that the case was reviewable in the state structure on a basis of abuse of discretion, but do you agree to that that there is no non-reviewable absolute right to do away with summation?

Mr. Norman C. Morse: There is -- this question was reviewable in the state court, that's correct.

Justice Potter Stewart: And on the statute as my brother Blackmun suggests in his question, I suppose that the standard would be whether or not the trial judge abused his discretion in cutting off --

Mr. Norman C. Morse: That is correct.

Justice Potter Stewart: That would be --

Mr. Norman C. Morse: -- that is reviewable.

Justice Potter Stewart: But that would be the standard of review.

Mr. Norman C. Morse: That's right.

Justice Potter Stewart: Not whether -- and that's rather as he goes now of rather strict standard.

Mr. Norman C. Morse: Now, --

Justice Potter Stewart: Is that correct that the standard would be whether or not there was an abuse of discretion --

Mr. Norman C. Morse: An abuse of discretion in this instance and had this been a protracted trial, involve issues, perhaps that you could say that it had been an abuse of discretion, but it was not a protracted trial.

The people knew each other and the issues raised as I say were biased on the one hand which seemed to be absolutely ephemeral and alibi which was vague, they were resolved against the defendant.

Now, it seems to me here that if there's a right of summation in this instance because of some kind of historical basis, it would seem to me that that right of summation would have to carry over into any fact finding process if we're to distinguish as to substance and not as to form.

For example, we're now regularly besieged with the procedures on identification suppression, and so forth, voluntariness of confessions.

If in each instance, not only is there a right to the hearing, but there's a right to sum up on the fact finding question, I think we can see that the overworked urban courts to which my dedicated adversary makes reference would be even more so if at the end of that fact finding process, there was an insistences a matter of right, I have a right to analyze, sum up, distinguish the most obvious of facts.

So that I feel in this case therefore that we should not have to arrive at that conclusion.

We have I think a substantial waiver, a substantial case for waiver here.

It would appear to me that since, they had to be on record, they were placed on the record as to the rights that they were surrendering in accepting a non-jury trial.

These were spelled out I think by the trial judge which commendable detail that they selected that route, and if you will, made no comment whatsoever that I'm doing this, but remember Your Honor, I still want my right of summation.

Justice Thurgood Marshall: Did the judge tell him?

Mr. Norman C. Morse: There was no comment made one way or another with respect to summation.

And of course, they --

Justice Thurgood Marshall: That's an intelligent waiver?

Mr. Norman C. Morse: I say that's an intelligent waiver.

It's held to be an intelligent waiver in the federal system.

For example, if a waiver of indictment is had, I don't think that it's incumbent upon anyone to say to a defendant that when you waive indictment in the federal system and that -- by doing so, you waive your right to appear before the grand jury, you waive that possibility that the grand jury may not indict you.

All of the consequences of these things when a man is represented by an attorney, I think are fairly presumed to be known to him, else what his attorney for.

Now, it does seem to me Your Honors that the Singer against the United States has determined this matter in which it says that there -- in which the Court said that there is no federally recognized right to a criminal trial before a judge sitting alone.

And if the State of New York has set up a reasonable non-jury procedure, that that is a non-jury procedure which this defendant or this appellant elected to proceed to trial by.

He has a right to waive many rights.

He has a right to obviously to stipulate as to testimony.

He has a right to testify and with that, face the burden of being examined as to prior criminal activity which could never be introduced otherwise.

But he does this -- when he does this, he does this with the assumption on the part of the Court that he does it with a full knowledge of what he surrendering, and I say that that same reasoning applies here.

Your Honor, may I reserve the balance of my time for reply.

Chief Justice Warren E. Burger: No.

your colleague is going to join you now?

He's going to follow you?

Mr. Norman C. Morse: Yes.

Chief Justice Warren E. Burger: Alright.

Mr. Levy?

Mr. Levy?

Argument of Gabriel I. Levy

Mr. Gabriel I. Levy: Thank you Your Honor.

I want to thank the Court for the kind indulgence in accepting our brief quite like.

On behalf of the Attorney General of the State of New York Your Honor, the only question here is whether or not there's a federally protected right to sum up in a non-jury case.

New York -- whether the right exist in the jury case and not New York recognizes that right, there’s a unconditional right in New York to sum up in a jury case.

There's a constitutional right to trial by jury.

There is no constitutional right to trial without a jury under the United States Constitution.

The right is granted by the New York state constitution, but you can't engraft on into the federal constitution a state constitutional right of that as I believe Mr. Justice White pointed out in Laigus against Kumi.

I would point out that this Court has specifically pointed out that there is no such constitutional right to trial without a jury under the federal constitution, and I believe that the court's, state's courts rules that may provide for a non-jury trial and as pointed out in Singer, there maybe reasonable, procedural requirements tied in with that waiver.

Now, if we start from the premise that there is no federal constitutional right to sum up in a non-jury case, we don't' even have to reach the fact whether or not there is a knowing waiver under New York law.

And I might point out that this question of abuse of discretion was never raised in the state courts.

If it had been raised in the state courts, it would have and could have been considered by the state appellate courts as to whether or not the judge properly refused to take summation.

This was a very simply case.

It was very carefully considered.

It considered by the Court even as pointed out by defendant's counsel, very copious notes were taken and it's right in the record.

At the end of the People's case, the charge of the Class D felony of possession of a dangerous instrument, that was dismissed at the end of the People's case.

What was left for the judge to decide was whether he was guilty of attempted robbery in the first degree which is a Class B felony which subject him to a 25 years imprisonment, or a Class D felony third degree -- attempted robbery in the third degree which only would have subjected him to seven years.

True it only took the judge eight minutes to decide, he found him not guilty on the most serious crime and found him guilty on the lesser crime.

So, there certainly was very careful consideration and what summation would add in a non-jury case, especially in the facts here, what right was he deprived off?

I think this is very similar to the right of allocution which was considered by this Court in Hill against the United States, 368 U.S. 424 in 1962, where this Court held that the failure of the court to permit the defendant to be heard prior to sentencing in and off itself was an error which was neither jurisdictional or constitutional.

And certainly, whether or not the court permits summation in a non-jury case, it does not taking away a constitutional right from him.

We're not dealing with the jury here who are lame and do not understand the various nuances.

We're dealing with a professional trier of the facts of one of Your Honors pointed out in questioning before, I believe it was Justice Marshall.

The judges are lawyer.

We're not dealing here with complicated facts.

We're dealing here with very simple things.

And what would be -- there might be some gain on the part of a judge listening to summation, but there's no constitutional right being taken away because no constitutional right exist in the first instance.

And furthermore in New York, a defendant who does waive trial by jury also may waive his unconditional right to sum up.

If that right of summation is such that he considers it so valuable and that the facts of the case are such that require summation, all he has to do is insist on his constitutional right to trial by jury.

And we submit that there is no federal constitutional right to sum up in the first instance in a non-jury case.

and if such fact, and if such right should exist which we do not concede, the fact that the New York statute makes it discretionary as to whether or not to permit summation, the waiver -- inherent in the waiver of trail by jury is also a waiver of the unconditional right to sum up in a non-jury case.

Justice Byron R. White: I take it there are cases that disagree with you?

Mr. Gabriel I. Levy: Yes.

I believe there are some cases in various states which --

Justice Byron R. White: Would you disagree with your colleague as to what the division is among the states on this question?

Mr. Gabriel I. Levy: No.

I have gone through the cases and I would concede that I think the weight of authority --

Justice Byron R. White: Is against you.

Mr. Gabriel I. Levy: Is against us, both pre and post and --

Justice William J. Brennan: And on what federal constitutional ground are those concerned?

Mr. Gabriel I. Levy: They just talk about the Due Process Clause Mr. Justice Brennan.

They don't --

Justice William J. Brennan: Not the Sixth Amendment?

Mr. Gabriel I. Levy: No.

They don't talk about the Sixth Amendment as such, and I'm talking on a general overview.

Justice William J. Brennan: Because it's even before, we extended the Sixth to the states to sum up --

Mr. Gabriel I. Levy: Well, to settle this, I'm thinking of the Florida case which was pre-Gideon and I believe, that was decided in --

Justice William J. Brennan: Finally in cut?

Mr. Gabriel I. Levy: 19 -- it was 1956, Boyd against State, that was decided, yes, in 195 -- no, I take it back.

They specifically, they did mention a right to counsel.

In the Boyd case, in -- I believe it was the Fifth Circuit, yes.

The Fifth Circuit, this was a 1968 involving a Federal Juvenile Delinquency Act held that there was no constitutional right to sum up at least under the Federal Juvenile Delinquency Act, and that of course was non-jury situation.

Of course, we have to be reminded that with respect to this case, we're dealing with a very, very limited situation.

New York is the only state in the United States with such a statute, which sets up the right to -- the order of trial in a non-jury case.

It's specifically vests in the trial court a discretion as to whether or not to permit summing up only in a non-jury case.

It gives an unconditional right to sum up in a jury case.

Justice Byron R. White: How about civil cases, is there -- will be --

Mr. Gabriel I. Levy: I know of no statute Judge White which provides for summing up in a civil case as such in New York.

Justice Harry A. Blackmun: But nevertheless, do you have the right?

Mr. Gabriel I. Levy: By custom of usage.

If by nothing else Justice Blackmun, you have the right by custom in usage at least in a jury case.

As a matter of practice in New York, there's very little summing up in a non-jury civil case because that's usually handled on a brief type situation, by the way, which is also available in a non-jury criminal case, a very often, I would say very often but when there are sophisticated questions, the judge, it doesn't have to decide.

There's no immediacy to decide a criminal case, and he can request briefs on both the law and the facts.

Justice William H. Rehnquist: Of course, there you need a transcript don't you if you're going to brief the facts?

Mr. Gabriel I. Levy: By law in New York, there must be a transcript prepared, taken down in every case.

Any indigent defendant in New York may get an immediate copy of the transcript.

Justice William H. Rehnquist: You mean a daily --

Mr. Gabriel I. Levy: No, no, no, no, no.

I think you misunderstand me justice.

If the court would require or request a brief on the facts on and the law, there would be no problem for the court to direct the court reporter to furnish a copy of the transcript to both the District Attorney and the defendant.

Justice William H. Rehnquist: But sometime when he lapse?

Mr. Gabriel I. Levy: Several days, depending -- I would assume -

Justice William H. Rehnquist: From a court reporter, you could get a transcript in several days?

Mr. Gabriel I. Levy: This was only a 90-page transcript Your Honor.

I mean of course, if you're dealing with a longer transcript, of course it would take longer.

But it's the out story where there's a will, there's a way.

Justice William H. Rehnquist: How does this suggestion for briefing on the factual issues in a non-jury criminal case usually come about?

Is it at the request of one of the defendant or of the people or is it at the request of the judge?

Mr. Gabriel I. Levy: I'm just talking about on a hypothetical question.

Ordinarily, very often if the defendant or the people would request the court if it would like briefs.

And as a rule, I think the court usually decline because judge -- at least Justice Barlow, the judges in New York and particularly Justice Barlow did take very, very copious notes with respect to this case.

Justice William H. Rehnquist: And that's when it freshest in the judge's mind is right after --

Mr. Gabriel I. Levy: That's correct.

That's correct.

Chief Justice Warren E. Burger: As I recall it on Monday, he modified if not reversed ruling on evidence that he made on Friday.

Is that not correct?

Mr. Gabriel I. Levy: That's correct Your Honor.

It just happens is that Justice Barlow was one of the more eminent and outstanding judges in New York and I think the proof is in the putting in the facts in this case.

He found them -- he dismissed one charge, found him not guilty on the most serious charge, and found him guilty on the least of all the charges, and I think there was very careful consideration.

And obviously, I don't know what summation could have gained the defendant.

The defendant here as Justice Marshall previously pointed out, if you insisted on the defendant notwithstanding the requirements that the New York statute, and the judge says all right, go ahead as Justice Marshall said, you would still have basically a bias listener and what good is having a bias listener?

And with respect having oral argument on every factual and substantive question, we run into the situation all the time as -- and I believe Justice Stewart --

Justice Thurgood Marshall: You keep saying about all.

This is only the final end of the trial we're talking about.

We talk about suppression of evidence,

Mr. Gabriel I. Levy: That's correct.

Justice Thurgood Marshall: Confession, why are you bringing those up?

Mr. Gabriel I. Levy: I'm not.

Justice Thurgood Marshall: Ah.

Mr. Gabriel I. Levy: I'm not bringing those up Justice Marshall.

Justice Thurgood Marshall: You promise?

Mr. Gabriel I. Levy: I promise.

Justice Thurgood Marshall: Okay.

Mr. Gabriel I. Levy: And basically, there is no fundamental federally protected constitutional right to sum up in a non-jury case, and the entire argument of the appellants here is that such right exists.

And as I said before, they never raised in the state courts the fact that the defendant, that the trial judge abused his discretion in refusing to grant summation in this particular case.

Chief Justice Warren E. Burger: Thank you Mr. Levy.

Do you have anything further Ms. Steele?

Rebuttal of Diana A. Steele

Ms Diana A. Steele: No.

Chief Justice Warren E. Burger: Very well, the case is submitted.