GEDERS v. UNITED STATES

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Argument of Seymour L. Honig

Chief Justice Warren E. Burger: We will hear arguments next in Geders against the United States, 5968.

Mr. Honig you may proceed, whenever you are ready.

Mr. Seymour L. Honig: Mr. Chief Justice and may it please the Court.

My name is Seymour L. Honig.

I am an attorney form Tampa, Florida.

Seated at counsel table is Richard H. McGuinness, also an attorney from Tampa, Florida.

Mr. McGuinness and I represent the petitioner John Geders.

Your Honors, the petitioner is here pursuant to issuance of writ of certiorari to the Fifth Circuit to review what appears to be, a conflict between two circuits regarding the question presented for review before this Honorable Court.

The matter on review arises out of certain trial proceedings, in the United States District Court, Middle District of Florida, Tampa Division, in which the petitioner John Geders was on a trial as a defendant charged with particular offenses.

During the trial, the Court issued an across the board incommunicado order, prohibiting the defendant from communicating, or having any access to and with his attorney during a 16-hour overnight recess period between the conclusion of direct examination and the conclusion of cross examination of the defendant himself.

The role of in factual situation Your Honors, as it relates to the question presented for review, commenced on the next to the last day of trial.

At that time, the petitioner Geders took the witness stand on his own behalf and his attorney Mr. Rinehart, who was a defense counsel at the time of the trial, completed direct examination at approximately 4:55 p.m. in the afternoon, a usual time for recess in the United States District Court, the Middle District in Tampa.

However, in response to a motion of the prosecutor Mr. Blasingame, His Honor Judge Klinsmann decided to recess the particular trial until the following day, apparently Mr. Blasingame wanted to prepare as not unusual for a cross examination, because there was an extensive direct examination of the defendant in that particular matter.

But recess was not ordered Your Honors, before the prosecutor, Blasingame questioned the Court with respect to certain instructions that he desired that the Court issue to the accused and his counsel and with the permission of the Court, I would like to refer to page 17 of the appendix at which time Mr. Blasingame stated, has this witness been instructed now that he has not to talk to anyone whatsoever, including his attorneys or anyone, about this case at all and this is the prosecutor Your Honors addressing the Court at the time that recess was going to be ordered by the district judge.

Just below that Mr. Rinehart, in response thereto stated, if he were instructed not to talk to his attorney, I feel that it would be improper.

I think I always have the right to talk to my client, Of course the emphasis is mine, but the words are Mr. Rinehart’s.

Justice Harry A. Blackmun: I thin at this point, let is follow through on that.

Suppose this were noon recess, the same answer?

Mr. Seymour L. Honig: A noon recess, well, Your Honor --Mr. Justice this was a situation where he was denied 16 hours with his counsel.

Justice Harry A. Blackmun: I know I am talking about the noon recess of one hour, would your answer be the same?

Mr. Seymour L. Honig: Yes, it would be Your Honor by reason that --

Justice Harry A. Blackmun: Suppose it were rest and relaxation period to allow the jury to go to bathroom five minutes, same answer?

Mr. Seymour L. Honig: It would be essentially the same answer Your Honor because it would be a violation of a basic constitutional safeguard.

Justice Harry A. Blackmun: In logic you have to give that answer (Inaudible)?

Mr. Seymour L. Honig: In logic, and in practice, and in defense of the constitution, as I see it Your Honor, yes.

Justice Harry A. Blackmun: And suppose that the judge here had said, we will finish with this witness tonight, declared no recess, would you be here?

Mr. Seymour L. Honig: If he declared no recess and cross examination was continued immediately subsequent to direct examination, no, not at all Your Honor, I would not be here.

Justice Harry A. Blackmun: Even though it continued well past your closing time in the middle district division?

Mr. Seymour L. Honig: That is correct and I would not object to the fact that counsel for the defense would have not the opportunity to discuss anything with his client during the process of cross examination which I will understand Mr. Justice.

Justice Harry A. Blackmun: So that your right to discuss is not absolutely depends on the accident of the recess?

Mr. Seymour L. Honig: No not completely Your Honor.

My point is this that the recess did occur, but at the instance of the Government who moved for it, not the defense.

If the recess and it was granted then certainly, I would submit respectfully that defense counsel should not be denied the right to consult with his client and this would be most consistent with the right to assistance of counsel for one's defense pursuant to the Sixth Amendment, sir.

Justice Harry A. Blackmun: You have the right to insist on a recess between direct and cross examination at all times?

Mr. Seymour L. Honig: No, Your Honor.

One does not have the right.

I would say this would be discretionary with the Court and I would say that in this particular situation the Court accommodated the Government.

As a matter of fact the Government -- the judge, excuse me, the trial judge was well prepared to continue with the proceedings and go into cross examination, but the Government moved for recess because of its reason to prepare.

Justice Harry A. Blackmun: Would it make a difference if you had requested the recess?

Mr. Seymour L. Honig: No, it would not Your Honor, I submit.

If the Government, if His Honor at that time, I sent it to a recess then I would submit that certainly counsel and the client would have the right to consult with one another.

Justice William J. Brennan: (Inaudible) Making the annotation, granted, provided?

Mr. Seymour L. Honig: Defense is making the application Mr. Justice Brennan?

Justice William J. Brennan: And the judge said granted, provided that you do not talk to your client during the recess?

Mr. Seymour L. Honig: I would be here for that Your Honor.

Justice William J. Brennan: You would?

Mr. Seymour L. Honig: Yes, yes, Your Honor, I would be.

Chief Justice Warren E. Burger: You are saying that the trial judge has no discretion or whatever to limit the conversations of the witness?

Mr. Seymour L. Honig: Defense Witness Mr. Justice --Mr. Chief Justice.

Chief Justice Warren E. Burger: Who is under cross examination?

Mr. Seymour L. Honig: Yes, Your Honor.

Justice William H. Rehnquist: Defense witness or defendant?

Mr. Seymour L. Honig: This is defendant Your Honor.

Unknown Speaker: Defendant, I thought you were --

Mr. Seymour L. Honig: Defendant, this was not the defense witness, a defendant.

Justice Potter Stewart: Defining your plan to access and communication between him and his counsel at the time when he is not on the witness stand?

Mr. Seymour L. Honig: Precisely, that is exactly my point.

Justice Potter Stewart: That is the answer to Justice Blackmun’s questions?

Mr. Seymour L. Honig: Excuse me, then I misunderstood you.

I am sorry.

Justice Thurgood Marshall: Why go so far as to say that if there is a five minute recess, the judge can tell you sit there and do not talk to anybody that is a violation to somebody’s rights, why do you do that for?

Mr. Seymour L. Honig: Because I would submit that this is inherent prejudice.

That this inherent prejudice that flows from a violation of that basic constitutional safeguard.

Justice Thurgood Marshall: Recess for the next five minutes, nobody talks to anybody and you give reversible error.

Why do you have to go that far?

You got 16 hours in this case, why do you have to cut it to five minutes?

Justice Potter Stewart: You are going to answer my colleague's question?

Mr. Seymour L. Honig: Yes, I cut it.

This was in response to your colleague's questions Mr. Justice Marshall, if it would be five minutes, or 16 hours my answer would be much the same, sir.

Justice Thurgood Marshall: It is your case?

Mr. Seymour L. Honig: Sorry.

Justice Thurgood Marshall: It is your case?

Mr. Seymour L. Honig: Yes sir.

Justice William H. Rehnquist: Yet you concede that the defense counsel does not have a right to insist that cross be interrupted, cross of his client on the stand, in order that he may confer with him for a few minutes?

Mr. Seymour L. Honig: Not during the trial proceedings itself in the midst of a courtroom, unless some undue occurrence happen to take place.

Justice William H. Rehnquist: So that the right of consultation between the defendant and his counsel is not an absolute?

It cannot be demanded at anytime during the proceedings?

Mr. Seymour L. Honig: I would submit that, a 16 hour recess, subsequent to a recess is a critical stage of the proceedings at which time the guiding hand of counsel has to be present Mr. Justice Rehnquist, for meaningful defense.

Justice William H. Rehnquist: The guiding hand of counsel, the coach demand on what to say --

Mr. Seymour L. Honig: No, Your Honor.

No, excuse me Your Honor, that is not what I meant to say at all. Coaching is not what defense counsel in this case wanted to do.

He wanted to discuss with his client, this was the next for the last day of trial, witnesses who might be called and trial strategy.

This is always something to be discussed between attorney and client.

Justice William H. Rehnquist: (Voice Overlap) allow that sort of a consultation?

Mr. Seymour L. Honig: I beg your pardon Your Honor.

Justice William H. Rehnquist: Did not Judge Klinsmann in his order allow that sort of consultation?

Mr. Seymour L. Honig: Not actually.

With all due respect to Judge Klinsmann who I have great respect for, his statement was really in effect a sham because what he Stated to counsel was that he was to discuss before the bench, what witnesses he was going to or planning to call.

In other words, consult with his client with respect to what witnesses they were going to decide to call, really a revelation, matter of privilege matter before the bench and then Judge Klinsmann said, well, I am not going to sacrifice this whole matter for your strategy.

In effect, this is what he said.

This is revealed in the appendix, and well, if we need a month after this, I will give it to you to prepare your case or to continue with strategy, but you are not going to be able to talk to your client at this particular stage, for 16 hours or whatever time it was until the conclusion of cross examination, the following day Mr. Justice Rehnquist.

Justice William H. Rehnquist: You mean that Judge Klinsmann would not permit Mr. Rinehart and the defendant to confer about order of witnesses even for five minutes outside of the judges’ presence?

Mr. Seymour L. Honig: There is no evidence in the record as to that.

The record reflects --

Justice William H. Rehnquist: What page are you referring to?

Mr. Seymour L. Honig: Yes.

May I refer you Mr. Justice Rehnquist and other Honorable Members of this Court to page 19 of the appendix, and it is the fourth, which is the Court the fourth time the Court speaks in the third paragraph.

I think you might ask him right now, right here while we are here, what witnesses he thinks you ought to call in the morning.

Now, I would respectfully submit Mr. Justice Rehnquist that the trial judge is treating this situation as a fishbowl situation.

He has the defense counsel before him with his client, with the defendant and he says if you wanted to call witnesses in the morning, discuss it right here and we will get on, but that you are not going to talk with each other and have any communication with each other, until the termination of cross examination the following day.

Justice William H. Rehnquist: See that is a pretty ambiguous colloquy to ask us to reverse a judgment after a completed trial.

If you concede that had it been out of the Court’s presence, it would have done alright?

Mr. Seymour L. Honig: Well, I submit Your Honor that this is a basic constitutional safeguard.

The right of assistance of counsel and this is the basis and the ground of our argument.

The right of assistance to counsel for one’s defense and it does not only, we respectfully submit, prevail in a courtroom, but outside of a courtroom as well.

The eve of the last day of trial is a critical stage of the proceeding where defense counsel and we respectfully submit sir and his client, have every right to discuss trial strategy and the calling of witnesses or whatever in preparing for the following day trial.

I think that every trial lawyer has done this.

I find that the evenings are in most critical in any stage of trial, sir.

Chief Justice Warren E. Burger: What if the trial judge had said in taking your short recess hypothetical case, if the judge had said --

Mr. Seymour L. Honig: Begging the Court’s pardon, that was not my hypothetical, I believe it was Mr. Justice Rehnquist’s.

Chief Justice Warren E. Burger: (Voice Overlap) No, I thought that you were addressing.

Mr. Seymour L. Honig: Yes, sir.

Chief Justice Warren E. Burger: And that is not an uncommon thing to have a great range of hypothetical to test by analogy of the arguments being made?

Mr. Seymour L. Honig: Yes, Mr. Chief Justice.

Chief Justice Warren E. Burger: I suppose if the judge said, the jury maybe excused and everyone else, both counsel will remain in the courtroom and the witness will remain on the stand as was suggested before.

You think you have then deprived of an opportunity to consult with him?

Mr. Seymour L. Honig: If the defendant were told to remain on the stand and the jury was removed and what happened, I do not quite follow you Mr. Chief Justice.

Chief Justice Warren E. Burger: Just as we are going to take it, the jury is excused for ten minutes, but the witness who is now under examination will remain on the witness stand?

Mr. Seymour L. Honig: And that, well Your Honor.

I think that it is --

Chief Justice Warren E. Burger: The defendant witness?

Mr. Seymour L. Honig: The defendant witness is there and there is a ten minute recess in effect because the jury is out and the judge is not out of the courtroom, he is there.

Chief Justice Warren E. Burger: And let us say the judge leaves the courtroom, but says let us pursue that.

You will remain on the witness stand and counsel, you will not consult with them during this recess?

Mr. Seymour L. Honig: He is technically, I would say that that would be a correct ruling on the trial judge.

It would be questionable, but I would tend to say that would be a correct ruling.

In view of the fact that the defendant has not left the witness stand between direct and cross examination.

He is still in the midst of the proceedings.

Chief Justice Warren E. Burger: The purpose of all this is of course very clear, is it not?

The discretion vested in trial judges to see that witnesses are not coached before they are going to be subjected to cross examination by the opposing counsel?

Mr. Seymour L. Honig: This is quite correct, Your Honor, but I most respectfully submit that no trial judge in United States has any discretion with which to violate a basic constitutional safeguard and that is precisely my answer.

Chief Justice Warren E. Burger: We do not agree on that fine generality, I am sure?

Mr. Seymour L. Honig: Yes sir.

Your Honors, at the conclusion of the -- Oh! yes, the Government in its appeal, in its brief to the Fifth Circuit, I feel and I submit has misled the Court to some measure in that they confuse the issue Your Honors by indicating that the prohibition between the counsel and the defendant was a limited prohibition, only relating to the prohibition with respect to discussing testimony when in fact of course this was an across the board incommunicado order, or a totally incommunicado order.

No reason, no -- no consulting whatsoever about anything, and the next day when the Court did resit, the Court stated to Mr. Rinehart as appears on page 20, questioned him I should say, you have not talked with him of course, have you?

And Mr. Rinehart says, no I have not and this would clear of any doubt as to the limitation or the narrow prohibition regarding the incommunicado order, it was in fact total and complete.

Counsel was not permitted to talk to his client, the defendant at all for period of what appeared to be 16 hours.

We would respectfully submit Your Honors, that there are certain matters which are self-evident and basic and dealing with the question presented for review and they are one and I submit that self-evident in basic is that error was committed by the trial judge.

Secondly, that the error was a constitutional error.

Thirdly in self-evident and basic, we would urge, is that the federal constitutional error was one in violation of the Sixth Amendment of the constitution of the United States and that the portion of the Sixth Amendment which was violated, was that part which pertains to the right of assistance of counsel for one’s defense.

And lastly, we would urge that this violation, that this federal constitutional violation occurred during the critical stage of the proceedings, namely during the trial itself, between the termination of direct examination of the defendant and the termination or conclusion of cross examination of the defendant the following day by the Government prosecutor.

We would further submit that the denial of right to consult with counsel for a 16-hour period of time is in contravention to a basic constitutional safeguard and as such is inherently prejudicial, inherently prejudicial and is per se, reversible error.

In support of this position, the petitioner relies upon Glasser versus United States.

Powell v. Alabama, Hamilton v. Alabama, Gideon versus Wainwright and Argesinger versus Hamlin and sir, oh! I am sorry.

These cases we submit, all pertain to the denial of assistance of counsel for one’s defense and we would further submit as we have before that the denial of assistance of counsel for one’s defense in each of the above cases, from Powell v Alabama through Argesinger v Hamlin was deemed inherently prejudicial and was per se reversible error.

In the Glasser case without going into any quotations, the Court considered that the right to have the assistance of counsel was so fundamental and absolute right that the courts could not indulge in nice calculations as to the amount of prejudice arising form the denial and we would submit that, that is correct.

We further contend Your Honors, that the rule of harmless error as promulgated in Chapman v. California is irrelevant and inappropriate to the question presented for review.

We would submit Your Honors, that the harmless error rule applies to the evaluation and measurement of the prejudicial quality and quantity if any, of tainted evidence admitted in the trial of an accused.

But the harmless error rule, we would submit, is not applied in measuring prejudice which inherently flows from the violation or from the denial of a basic constitutional safeguard.

We urge that the harmless error rule, as promulgated in Chapman v. California does not apply nor can it realistically apply to a violation of a basic constitutional safe guard.

This Court has recently dealt with harmless error cases in Hamilton v. State of California and Milton v. Wainwright.

I would submit two very typical cases where a harmless error has been applied and in both cases, the Court was dealing with the admission of tainted evidence, if you would, or a testimony, but in the face of which there was overwhelming evidence to convict and so this was deemed by the Court to be a harmless constitutional error, but the Chapman v. California doctrine puts the burden of proof above and beyond the exclusion of all reasonable doubt as you have it in any criminal proceeding upon the Government to establish the absence of prejudice or harmless error.

It would be impossible, we submit for the Government to at all put forth such proof in this particular case nor have that and not having done so that certainly could not be considered harmless -- they certainly have not met their burden with respect to the harmless error doctrine.

The Fifth Circuit, we submit, was in error.

One, they not only misapplied the Chapman case, we submit, they should not have applied Chapman case to the particular ruling that they made in this case, but that they misinterpreted it as well.

Chapman is very clear, I will submit Your Honor, that the burden is upon the Government to prove above any reasonable doubt that there was an absence of prejudice or harmless error and this is to protect them.

Justice William H. Rehnquist: In Chapman you are talking about evidence which ultimately got into the trial which should have been excluded, so you have something factual that the Government can at least go ahead and start evaluating and say it could not have made any difference.

Here all you have is the absence for a period of a time of a right to consult between the defendant and his counsel.

Now, supposing in that sort of a case, this Court would say at least the burden of going forth -- forward with some sort of a showing that it might have been prejudicial is up to you, well, what showing would you make here?

Mr. Seymour L. Honig: I would submit that if I was asked to do that, that we would be flying in the face of Chapman, Your Honor.

Justice William H. Rehnquist: So you are saying that that you could not make any such showing?

Mr. Seymour L. Honig: For this reason Your Honor that --

Justice William H. Rehnquist: But do you say that you could not make any such showing?

Mr. Seymour L. Honig: Oh! I say that we could make such a showing, Your Honor, but to make such a showing, it would reveal privileged matter, cause to reveal privilege matter.

Justice William H. Rehnquist: So, at any rate -- at any rate you are unwilling to do so now?

Mr. Seymour L. Honig: Well, if the Court has asked to me to do something which I considered to be unconstitutional then I -- if I am ordered to do so, I would have got something (Voice Overlap).

Justice William H. Rehnquist: No, individual justice of the Court has powered to order you to do anything.

All I am asking is, is there anything you would wish to disclose to the Court as to why this might in anyway have hurt -- hurt your case?

Mr. Seymour L. Honig: Well, yes Your Honor.

May I make it on three points.

One and I do not want to sing the old song.

Again, I say it is inherently prejudicial, pursuant to the Glasser versus United States decision.

Justice William H. Rehnquist: Which is no showing at all?

Mr. Seymour L. Honig: That is right, there is no shoeing at all because prejudice in here is in the Act.

Justice William J. Brennan: If there is a Sixth Amendment right, the assistance of counsel has been violated, there is simply no room for the application of the harmless error rule?

Mr. Seymour L. Honig: That is -- that is correct Mr. Justice Brennan.

Justice William J. Brennan: Why are you fencing it up whether you could or could not show it up?

Mr. Seymour L. Honig: Oh, I am not fencing.

I believe that I can show it right now, Mr. Justice Brennan and Mr. Justice Rehnquist --

Justice William H. Rehnquist: Because I asked you?

Mr. Seymour L. Honig: Yes, I would be very happy to answer.

The defense counsel at this trial stated very specifically and I could refer the Court to the particular quotation here where he states that he wants to discuss with his client the calling of witnesses and also the discussion, he wants to have a discussion of trial strategy with his client, I would say this is per se reversible error, in view the fact that he has been prejudiced.

I think that I would submit that he has this inviolable right, this to have a discussion of trial strategy and the calling of witnesses with his client.

Chief Justice Warren E. Burger: Suppose the Judge Klinsmann had said and when the objections came from defense counsel that if you need time for this final roundup before the close of the trial, the order will stand, but I will give you a recess of as long as you want.

One day, two days, whatever you need after the cross examination is completed, would that take care of the problem?

Mr. Seymour L. Honig: No, Your Honor, I would submit, then would not.

Chief Justice Warren E. Burger: Then does that narrow it down that -- you may think that the defense counsel wanted to talk to him about that night with his cross examination the following day?

Mr. Seymour L. Honig: The only thing that revealed -- that is revealed on the record is that the defense counsel did want to discuss with him matters of witnesses and trial strategy which takes in the whole spectrum of things, I respectfully submit.

Chief Justice Warren E. Burger: Could all that be done in this hypothetical recess that I have suggested?

Mr. Seymour L. Honig: It would depend upon the trial strategy and the recess and the witnesses that they would want to call.

Chief Justice Warren E. Burger: I will remind you, you are at the end of the day, at the end of the Court day, the judge says you cannot talk to this man about his cross examination tomorrow, but if you need 24 hours after that to plan of closing stages of the trial, the Court will give it to you, that would not cure the error that you see?

Mr. Seymour L. Honig: No, Your Honor and --

Chief Justice Warren E. Burger: And does that not narrow the proposition down that you are really arguing for a constitutional right for a defense counsel to coach his witness?

Mr. Seymour L. Honig: Not to coach his witness, never to coach his witness, Your Honor.

That would be possibly suborning perjury, no, no.

Chief Justice Warren E. Burger: Is that any consequence of your position?

Mr. Seymour L. Honig: Not to coach a witness Your Honor, but to discuss with him to have the assistance of one’s client and counsel.

Chief Justice Warren E. Burger: Go back to the hypothetical then.

The judge said, he would give him the 24 hours recess after the cross examination, would that not give you everything that you say was going to be the purpose of the consultation?

Mr. Seymour L. Honig: I would say that not necessarily, Your Honor because things can happen between that particular time.

I would not conceive of what could happen, but there are things that conceivably occur that might be vital to that trial and it would be a critical stage of the trial.

Chief Justice Warren E. Burger: Could you just give a hint as to what one them might be?

Mr. Seymour L. Honig: Between direct and cross examination providing to be a 24 hour, a period of recess given after that.

Chief Justice Warren E. Burger: For the purpose of doing all the tings that you said that were imperative to be done during a 15 hour?

Mr. Seymour L. Honig: Yes, there might be a witness who would be leaving town or witnesses who may be leaving the city and it would be necessary to have them called immediately and have them subpoenaed, so they will be there tomorrow on the court order.

Chief Justice Warren E. Burger: Court’s powers are pretty broad about subpoenas, are they not?

Mr. Seymour L. Honig: Well, it just might be that these people may not be locatable the following day and so that particular time, they might be necessary.

Chief Justice Warren E. Burger: You are suggesting that, that is something beyond a remedy, bringing -- bringing them in the courtroom and have them sitting there, or in an ante room as long as you want them?

Mr. Seymour L. Honig: Well, Your Honor, may I without being evasive to your hypothetical, may I just raise this hypothetical with due respect.

If the Court looking at the defense counsel, said I do not like the way you part your hear.

So, consequently thereof, you are not to discuss this case with your client until the termination of cross examination and then after that I will let you have 24 hours to discuss the case with him.

Would there be any difference there Your Honor?

I doubt it.

Chief Justice Warren E. Burger: (Inaudible) what that has do with the hypothetical question I put to you?

Mr. Seymour L. Honig: This Your Honor, I believe that if the Court affirms the ruling of the lower court here, it would lay a potential ground for the opening of a floodgate of possible judicial wrongdoing.

I consider this judicial wrongdoing.

The Court has asked me what could possibly happen between the conclusion of direct examination and the conclusion of cross examination, providing counsel and his attorney are not allowed to consult and providing that there will be a 24 hour recess period after that.

I would mention just one item.

It could be that he -- without coaching him, he might review what questions he thinks the Government might propound to him on cross examination without giving him the answers.

He say, well, perhaps the Government may ask you A,B,C,D, and E, because this would be logical for them to do so, so you should be ready and on your guard with respect to proper and honest answers in response to those questions and I think that, that might be quite necessary at that point to discuss it.

Chief Justice Warren E. Burger: Consultation relating to the cross examination; now I do not suggest by that question that there is anything unethical about consultation.

I am simply putting it to you.

Are you saying that there is a constitutional right to consult with the defendant before the cross examination begins relating to the scope of the cross examination?

Mr. Seymour L. Honig: Providing, Yes Your Honor, providing that there will be a recess, yes, not if there was a continuum from direct to cross examination, I would admit that certainly, he would not have a right to consult with his client at that particular time, but if there was a recess and especially, one, that is called or moved it by the instance of the Government, then certainly he would have this right, Mr. Chief Justice.

Chief Justice Warren E. Burger: Then the constitutional right that you are urging is one that depends on fortuity of the time of the day, the point in the trial when direct examination begins?

Mr. Seymour L. Honig: Well, only because it happened in this case that way, but it would apply in any other situation, I would respectfully submit Mr. Chief Justice that if the trial judge prohibited counsel from discussing any matter or discussing matters across the board with his client during the course of a trial whether the defendant took the stand or not, my position would be the same Mr. Chief Justice.

Mr. Justice Powell.

Justice Lewis F. Powell: You referred several times in your argument and in your brief to this event having occurred at a critical stage in the trial?

Mr. Seymour L. Honig: That is --

Justice Lewis F. Powell: Yeah, so let us assume for the moment that the recess had taken place 10 to 15 minutes, or half an hour after the commencement of a direct examination of defendant?

Mr. Seymour L. Honig: After the direct examination of the defendant?

Justice Lewis F. Powell: You just started the direct examination and you plan to examine him for a day or two, recess occurs shortly after you commenced, over night recess, what is you position on that?

Mr. Seymour L. Honig: Of course, I would have a full right to discuss and to consult with my client, during the process of that direct examination and the overnight recess of course.

Justice Lewis F. Powell: Well, how would you limit your use of the phrase “critical stage” in the trial?

Mr. Seymour L. Honig: I would say Your Honor, that a “critical stage” of the proceedings any stage wherein, if there is not assistance of counsel, accused may well be denied or will not receive a fair trial in due process of law.

Justice Lewis F. Powell: Are you not really saying that any time the Court is in recess that defense counsel has the right to confer with his client?

Mr. Seymour L. Honig: Yes, I am Your Honor.

Justice Lewis F. Powell: So there is no significance really to your talking about a critical stage?

Mr. Seymour L. Honig: I would say that -- I would say that even if it is for five minutes --

Justice Lewis F. Powell: At any stage?

Mr. Seymour L. Honig: Any stage of the trial is a critical stage and that is a stage where meaningful defense --

Justice Lewis F. Powell: Whenever you have a recess and the defendant is involved in criminal case, the stage is critical in your view?

Mr. Seymour L. Honig: I would submit that it is Mr. Justice Powell.

Justice William H. Rehnquist: Certainly, the end of direct for a defendant on the stand and the shift to cross is, you know, in the contemplation of most trial, is a very, very critical stage.

All of a sudden you stop getting questions from the attorney that is friendly to you, and you get under questions from attorney hostile to you and by your definition if there is no recess at that point, that is not a critical stage of the trial?

Mr. Seymour L. Honig: Well, every stage is a critical stage of the --

Justice William H. Rehnquist: But you are not entitled to -- you are not entitled to consult with counsel at that stage?

Mr. Seymour L. Honig: Not at that stage, but if the trial judge ordered the attorney out of the courtroom and said, now he will be crossed examined without you being there, that certainly would be the denial of his right of assistance of counsel.

Justice William H. Rehnquist: If the trial judge simply says, we had a recess an hour-and-a-half ago and no need for a recess, now we will go into cross, even it is a critical stage, but the defendant has no right to consult with his counsel?

Mr. Seymour L. Honig: Not if he is being tendered forthwith for cross examination, no Mr. Justice Rehnquist.

Justice Harry A. Blackmun: Mr. Honig?

Mr. Seymour L. Honig: Sir.

Justice Harry A. Blackmun: I understand why you feel this is a very critical case, it is critical for your client?

Mr. Seymour L. Honig: I think it is critical for justices, Mr. Justice Blackmun.

Justice Harry A. Blackmun: Suppose that you prevail here and we reverse, is the ultimate result not going to be what I suggested in my first question, namely that federal judges will just not call a recess, until the cross is complete.

Either that or they would not start with the defendant if he chooses to take the stand unless they can finish him up and want to go around.

Now, what is going to happen, if it is a long session for two or three days, that is something else again maybe?

Is this not the ultimate, what you are guiding federal judges to do, if you prevail?

Mr. Seymour L. Honig: No, not necessarily, Your Honor.

I do not see any wrongdoing and certainly we have had this in the state courts for years and this is the first time, I ever heard of it.

As a matter of fact I must confess my ignorance wherein there was prohibition on the part of counsel and his client from discussing any matters between the conclusion of direct and the conclusion of cross examination.

However, if any federal judges feel this way about it, then certainly they can commence direct the following day or they can choose just to allow as I would submit is correct, defense counsel and defendant, to consult with one another over night.

I would say this is quite consistent with our federal constitution.

Justice Harry A. Blackmun: One last question, neither you and our Government has cited the Manes case of last term here, are you familiar with that?

Mr. Seymour L. Honig: No.

I am not Your Honor.

Thank you, very much Mr. Justice, and Honorable Members of the Court.

Chief Justice Warren E. Burger: Mr. Glazer?

Argument of Sidney M. Glazer

Mr. Sidney M. Glazer: Mr. Chief Justice and may it please the Court.

The issue here is a narrow one, whether the instruction that the District judge gave without more requires reversal.

Petitioner’s position is that this is error and it is error that cannot be harmless.

I think the place to start is on page 18 of the appendix, just to look exactly how this issue arose?

On the bottom of page 18, defense counsel told the Court, I feel that I do not have the right to confer with him my client -- I do have the right to confer with him, but not to coach him as to what he may say on cross examination, or to how to answer questions.

Thereafter a little further down, the Court says, I think you might ask him right now, right here while we are here, what does he think, he thinks you ought to call in the morning.

Let us put it this way, you ask him right now, if he thinks that there are any witnesses, you ought to call during the evening, if anything comes up after he has been crossed examined and after you have had an opportunity for redirect, we would have a recess and you are going to have as much time as you want to talk over trial strategy.

So this case really arises under circumstances where counsel who is best familiar with the defendant and said to the Court, I really do not want to talk to him about his testimony at all.

All I want to talk to him about there other matter and the Court says, okay, if you want to talk about other matters, that is fine.

You can talk to him about other matters now, and if you need extra time at the conclusion of the direct examination, or after the cross examination, I will give you additional time.

Justice Thurgood Marshall: (Inaudible) Court judge was really gone ahead without the recess, so the question about the judge's time is being too -- that was what he was getting ready to do, was he not?

Mr. Sidney M. Glazer: Judge was getting ready to do what?

Justice Thurgood Marshall: Continue with the cross examination, not to recess?

Mr. Sidney M. Glazer: Well, the judge originally said on --

Justice Thurgood Marshall: On top of page 17?

Mr. Sidney M. Glazer: Right, on the bottom page 16, however, Your Honor, the judge says, does the Government wish to proceed with his cross examination now.

There are reasons why you may, or may not accept for the time factor, I do not know.

And one reason which why I think the prosecution did not want to proceed, it was already 4:55 and the normal time for adjournment was 5:30.

If he had proceeded the result would have been a recess during the cross examination.

During the next day, when the cross examination commence, it took the entire morning, it took the entire afternoon.

Justice Thurgood Marshall: Now we come back to this, by record?

He says we would prefer to recess.

The court says alright, you may.

Now, ladies and gentlemen I am going to ask you to stay a reasonable time which means he was going to proceed?

(Voice Overlap) again did move in this -- Oh, no, we do not want that, and could it all have been solved if they just gone along with it?

Mr. Sidney M. Glazer: Yes.

Justice Thurgood Marshall: Could they not?

Mr. Sidney M. Glazer: Oh, it could have been solved that way, right (Voice Overlap).

Justice Thurgood Marshall: Right so the judge chose to go the other way and get the whole long?

Mr. Sidney M. Glazer: Yeah, well, let me -- let me just put this case in little, add some extra facts to put this in perspective, this whole incident.

This trial covered a two weeks span.

The Government completed this case and the case, what case was, the defendant was charged and convicted of conspiring to import 1,000 pounds of marijuana in the United States and his defense was entrapment.

Now, the Government completed this case during the first week of trial.

In fact, it completed this case on Thursday and except for two witnesses who testified the following week that the substance imported was marijuana.

At this point on Thursday, the Court recessed and so both the government and defense counsel had Thursday night, Friday, Saturday, and Sunday to discuss the cases with their witnesses.

Now, during the course of the presentation of the case, the Court had instructed all of the Government witnesses, in the same fashion as it instructed the defense -- the defendant here, not to talk to lawyers during a recess.

Indeed when the case commenced on the second week when there was a motion on behalf of petitioners attorney that the Government’s case agent who I have been called as the defense witness, should not be allowed to participate in a prosecutorial conference and the Court said, okay, if you do not want to participate, I will instruct to him not to participate.

So this was -- the way this case was handled, both sides were treated equally, both sides were not allowed to discuss their testimony with their witnesses while the witnesses were on the stand.

Now, the judge even though, he put this -- put counsel in the bind so to speak as to talking to the witnesses overnight, however, he was very free and liberal in granting recesses.

For example, during the afternoon, before defendant commenced test -- commenced his testimony, he granted two recesses for defense counsel.

One to talk to a witness and two, he granted a recess, a recess which I think is essential, the defense counsel said, I would like to talk to my client now, that the Government’s case is almost closed, so we can make a decision as to whether, he is going to take the stand and testify.

So the judge said fine, we will grant you another recess to make that decision.

Now, subsequently after the defense finished -- after the Government finished its re-direct examination of the defendant there was another recess.

There was another recess and that is on page 22 of the appendix which we think is significant to show that we do not have an arbitrary judge here.

Between, when the Government completed its cross examination it was time for a luncheon break.

At that point, the Court said to defense counsel, I am going to instruct your client not to talk to you, during the luncheon break.

At this point, counsel said, Your Honor, I know of notice on page 22, I know of no way that I can properly examine my client on redirect examination, unless I talk to him about the cross examination and about other factors pertaining to the case.

So the Court said, alright you can go ahead and talk to him.

So what you really have here, is a situation just as far as we are concerned like Leighton versus United States, the Second Circuit case, in which I think you could say that all counsel was doing here was trying sow error into the record.

If he had pressed, if counsel had pressed at the time -- at the conclusion between direct and cross and said, I want to talk to my client, I want to talk to him about potential questions on cross examination, there is every reason to believe that the trial judge would have done the same thing, as he did between the cross and redirect.

Now, concededly assistance of counsel requires consultation and preparation.

Counsel normally prepares a case before trial and it is often necessary not only you cannot complete the preparation of your case before trial because many things happen unexpected, so you do have to prepare for -- prepare your case while the case is proceeding and this requires you to make use of recess.

There is no question about that, but when counsel is here says I do not want a recess, I do not want to recess to talk to my client about his testimony, I think the Court is entitled to take him at phase value.

Justice William H. Rehnquist: What is the Government’s position Mr. Glazer, if the client -- if the lawyer had said, I do want the recess to talk to my client about his testimony?

Mr. Sidney M. Glazer: Well, it is our position if he had asked, if he had said that, we would take the position he should have the right to talk to the client about his testimony.

The reason we do is illustrated by this case.

What would occur if there was a denial, would be a claim that there was a denial of effective assistance of counsel and it would be difficult for the Government to rebut, whether or not, the counsel had something that occurred which require a recess at that time.

After all, there is the lawyer-client privilege relationship and there would be no way to rebut something like that.

That is why we do not say this is a practice that should ordinarily follow, because it does create these types of problems, but when you have a situation where counsel says like here, I do not want to talk to my client about his testimony, that is a unique situation, and we think there is no violation of his assistance to counsel in that situation and there is no harm.

Now of course, when a defendant testifies, he subjects himself to restrictions, just like any other witness.

Under our advisory system, he is not entitled to recess just because an embarrassing question is asked.

The jury is entitled to hear his testimony and decide on the basis of his personal responses, is not to response -- not the responses of his lawyers, so the jury can -- can determine -- determine his demeanor and make its own appraisal of whether or not, he is a credible witness or not a credible witness.

Now --

Chief Justice Warren E. Burger: What about witnesses being crossed examined as is not unusual for 3, 4, 5, 6 days, you think the Court could say that during the time of the cross examination is continuing, you may not consult?

Mr. Sidney M. Glazer: Oh! Yes, we think -- we think that is a reasonable restriction.

The only reason we would say that ordinarily it should not be done when you have a defendant, is because you create these problems which sometimes could arise even in a post conviction proceeding in which there would be a claim, well, there is really something very essential that we have to talk about, and you denied us a right to talk and therefore, the case should be reversed because you denied the -- defendant has been denied effective assistance of counsel.

That is why we do not think this is a -- this procedure should routinely be followed.

It just happens in this case uniquely that the lawyer -- now most lawyers would not say this.

Most lawyers would say, yes, Your Honor, just like this lawyer here said on redirect, I cannot -- I want to talk to the client, I do not think he is ready for cross examination.

I think there is some areas which I have to refresh as --

Justice Byron R. White: Do you think -- the judge did not agree with that position herein, did he?

Mr. Sidney M. Glazer: No, well -- well --

Justice Byron R. White: So you are not really defending the --

Mr. Sidney M. Glazer: Well, I am defending the judge --

Justice Byron R. White: The district judge’s decision?

Mr. Sidney M. Glazer: No, I am defending the judge’s decision in this sense.

Justice Byron R. White: Well, not the way he put it to you?

Mr. Sidney M. Glazer: Well, well.

Well, let me just say this.

Let me back track—

Justice Byron R. White: Well yes, can you answer yes, or no, or not?

Mr. Sidney M. Glazer: Well, in the circumstances of this case, I am defending the judge’s decision.

Justice Byron R. White: So you are not defending the decision he made, what he said?

Mr. Sidney M. Glazer: I am -- I am not defending the practice.

I am not defending the practice, I do not think that this practice is -- is a desirable one.

Justice Byron R. White: You are not defending -- you are not defending the District judge if he said, well you can confer, but you cannot confer about cross examination?

Mr. Sidney M. Glazer: I am if, and if the defense not --

Justice Byron R. White: You have just said that you are not defending that?

Mr. Sidney M. Glazer: If the defense counsel said I -- I -- if the defense counsel said, I want to talk to him about cross examination, I would concede that the defense counsel has the right to talk to him about cross examination.

Justice Byron R. White: Well, the district judge had a wholly different view in this case?

Mr. Sidney M. Glazer: Yes.

Now, let me -- let me just -- let me just go --

Justice William J. Brennan: I am not saying what --

Mr. Sidney M. Glazer: Alright.

Justice William J. Brennan: I do not read judge’s, and Court’s opinions.

The Court of Appeals has limited and you suggest that he made a request as he had earlier at the noon recess, because he wanted to talk with his client about cross examination.

I do not read the Court of Appeals is saying that denying that would have been error and as I understand your argument you do say that the denying (Voice Overlap).

Mr. Sidney M. Glazer: Well the denial, let me -- may be, I should back it.

Justice William J. Brennan: No, but how about the Court of Appeals’ opinion?

Mr. Sidney M. Glazer: The Court of Appeals -- the Court of Appeals concluded that in the circumstances of this case, there was no prejudice, that is the Court of Appeals’ opinion --

Justice William J. Brennan: And you do not think, it can be read as, as saying you are entitled -- that the order, if it had gone so far as to forbid you to talk with your client about his cross examination, as saying if that would be alright?

Mr. Sidney M. Glazer: Well, the order maybe constitutionally alright.

Let me just back it, the order maybe constitutionally alright, I just do not think it is appropriate procedure.

The reason why it might be constitutionally alright is because you certainly could have gone forward, you could have gone forward and tried the entire case without any recesses and that is what occurs in many short cases.

The defendant gets on and testifies and right after he testifies and direct, he goes ahead with his cross, and if he asks for recess, the judge can say, oh you do not need a recess, let us finish it.

So I do not say there is anything constitutionally wrong with, maybe I just misunderstood Justice White’s question, I do not see there is anything constitutionally wrong with that.

What I am saying , I do not think it is a good practice.

It is not a good practice because afterwards, after the -- if there is -- in event there is a conviction, you are going to get the claim that oh, you did not let me cross -- talk to my client about his cross examination and that was really something I should have talked to him about, and this is something occurred because of some sort of surprise, but apart -- in addition of that --

Justice William H. Rehnquist: (Inaudible) not raise that kind of a claim, where you could show a constitutional violation, I would think?

Mr. Sidney M. Glazer: Well, you could show, if you -- well maybe it could come up with something.

He maybe able to come up with --

Justice William H. Rehnquist: But if you could come up something on a habeas, you could not come up with something on the direct, I would think?

Mr. Sidney M. Glazer: Oh! Yes you could not, but usually -- usually, if he came up with something during the course of the trial, the chances are, the trial court will try to ride it at that particular point.

So usually -- usually nothing would occur until at the conclusion of the trial.

At that point there will be some second guessing, and then defense counsel or there would be new lawyer in the case and then the claim would be made.

Chief Justice Warren E. Burger: And this is not common, the judge -- trial judge has or he thinks he has reason to doubt whether a witness is going to be improperly coached that he will say we will not begin the direct examination until the beginning of the court session, in someway that he can plan it out, is that not a common thing for judges to do?

Mr. Sidney M. Glazer: I am sure, I am sure that occurs Your Honor.

I do not how common it is.

I --

Chief Justice Warren E. Burger: Just as it is probably quite common for defense counsel putting a witness on the stand to try to have it fall, so that you will have a recess to talk to the client?

Mr. Sidney M. Glazer: Oh! I am sure, Your Honor, there is no question about the latter of state.

There is no question in my mind that when counsel puts witnesses on to testify, they certainly are cognizance and they consider when the recesses are going to occur because the some of one --

Justice Thurgood Marshall: If he is suspicious, you will not get recess, he will let you go through to 9 and 10 o’clock at night?

Mr. Sidney M. Glazer: Well, the only trouble with that is the country judges do it, but the city judges do not.

I had never seen a city judge --

Justice Thurgood Marshall: Well, this judge was getting ready to go?

Mr. Sidney M. Glazer: Alright , alright, alright.

Justice Thurgood Marshall: He was a city judge, was he not?

Mr. Sidney M. Glazer: Right.

You are right, right.

He as willing to do it, but apparently neither counsel wanted to because defense counsel did not protest about the recess.

In fact, defense counsel did not say to him look --

Justice Thurgood Marshall: (Inaudible) protest about the times of it?

Mr. Sidney M. Glazer: He protested about the times of the recess, but he did not say to judge, look this is going to let the Government think about cross examination overnight and we are not going to able to think about it.

He did not -- he did not -- if he had protested that way I think the judge would have gone forward.

Well, I just, from reading the record, Your Honor, it is plain from reading the record, it seems to me that the judge was trying to be evenhanded, but when counsel said to the judge, look, I do not want to talk to him about his testimony.

All I want to talk to him about is what witnesses to call and the court said, okay, well, you can talk to him about what witnesses you are going to call, you can talk to him right now and in addition, if you need an additional time, you can talk to him later.

So, I think we have a judge who was trying to be evenhanded, both to the prosecution and the defense.

Now, we think that if this is error that this is not the type of error which is subject to the harmless error rule, and we think that in this case -- in this case, if you examine all of the circumstances and I will recite them briefly, if there was there, the error was harmless beyond a reasonable doubt.

In the first place, the limitation here, the restriction here, is not akin to the denial of somebody, the right of a lawyer at all.

Certainly, in those cases where a defendant has not waived his right to a lawyer, the court will not look and decide whether it has been prejudiced or not.

Here the limitation that the court placed on the overnight recess is not significantly different from the short trial where the defendant’s testimony may go forward from commencement to conclusion, covering direct and cross without any recess.

To the extent, that a recess might have significance or make a difference, since it maybe used in trial preparation, there was no harm here because counsel said he did not need the recess for -- to talk to his client about his cross examination and as far -- as far as other matters are concerned, the Court gave defense counsel opportunity at the beginning of the recess and later on to discuss trial strategy.

Justice William H. Rehnquist: Mr. Glazer, actually, on page 18 of the appendix, as I read what counsel said, the bottom of page 18, I feel I do not -- I feel I do have the right to confer with him, but not coach him as to what he may say on a cross examination on how to answer questions?

Now, that is a little bit different I would think than you --?

Mr. Sidney M. Glazer: Yes, but I thought the import of the remark was, but then when we -- but then another reason we took this, we interpreted slightly different is -- is when the counsel says to the court, he has some questions about trials, he has some matters of trial strategy, he only -- so the court says to counsel, what matters are those?

And he says, well, I might want to talk him about, what witnesses to call and from that I think, you are going to infer that he did not want to talk to him about his trial testimony, otherwise that would have been foremost in his mind.

In addition, we think the court should be deciding that if there was error -- was harmless error, look to the fact that here we have, we do not have a situation where we have a reluctant counsel who was -- who was not pressing things for the -- on behalf of his client.

Here, when counsel was not reluctant to express his need when he thought he had talked to the defendant about his testimony, as he did before redirect examination, and if he had a need -- if he had a need, Justice Rehnquist to discuss any testimony, as to what his testimony be on cross I think he would have done the same thing at this recess, as he did in the subsequent recess which occurred the following day at the luncheon time.

Finally, we have a case, where we have a Court which had concerned that the defendants have a fair trial.

This Court freely granted recess just before the defendant testified.

He gave a recess for a -- to defense to talk to a Government witness, a defense witness.

Thereafter -- shortly thereafter counsel said, I would like time to talk to my defendant to decide whether the defendant should testify at that point, counsel was given another recess.

Finally, the restrictions posed were no -- were not one-sided.

They were posed on Government witnesses and including its case agents, and in these circumstances especially since this -- there the -- the evidence of guilt as the court below found was overwhelming, we think this Court should affirm this conviction.

Chief Justice Warren E. Burger: Thank you, gentleman.

The case is submitted.