DARDEN v. FLORIDA

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Argument of Geoffrey M. Kalmus

Chief Justice Warren E. Burger: We will hear arguments next in 76-5382 Darden against Florida.

Mr. Kalmus you may proceed when you are ready.

Geoffrey M. Kalmus: Mr. Chief Justice, may it please court.

My name is Geoffrey Kalmus; I am a partner in a private firm in New York City.

I am here representing Willie Jasper Darden.

We ask in this case that the court set aside Mr. Darden’s conviction the first-degree murder and his sentence to death cause of gross prosecutorial misconduct during summation.

The court has not heard afore in reviewing the state conviction, a held to the prosecutors closing argument, so far transcended the bounds of legitimacy and decency as to constituted deprivation of a dependence Fourteen Amendment rights.

Nonetheless it did recognize and Justice Rehnquist’s opinion in DeCristoforo, that prosecution is remarks to the jury, may so infect to trial with unfairness as to make the resulting conviction a denial of due process.

Moreover, it is ruled in many other contexts that circumstances of a criminal trial or other sorts of misconduct during it.

A may so impair the fundamental integrity of the jury’s determination and deliberations as to constituted denial of due process.

We ask therefore in this case that the court apply settle doctrine to vacate a conviction and a jury recommended death sentence infected by willful righteous prosecutorial misconduct.

As we see it, if ever a prosecutor’s misconduct in summation can constitute a denial of a fair trial this is such case.

I would like first to focus a little bit on the evidence because it is crucial here, it is crucial if the court understand that this was not a case in which the evidence was overwhelming, this was a case in which the jury might rationally and reasonably go either way at the end of the evidence.

We think the case was doubtful, we think that the evidence plainly shows that not withstanding the respondents used to the contrary.

Now what was the evidence here?

Unknown Speaker: What stage of the argument was the challenger objection made for the argument?

Geoffrey M. Kalmus: Your honor there was only one objection taken in the course of the prosecutor McDaniel’s argument and that was rather far along in it and at that point defense counsel stood up and objected to one of McDaniel’s statements that he wished the defendant had been maimed, that his head has been blown off or he had been cut his own throat of which there were a good many such statements.

That was the only objection taken the trial judge simply without any discussion said overruled, proceed Mr. McDaniel.

Returning to the question of the evidence as it stood at the close of the defense case, there were only three significant items of evidence supporting the prosecutions claimed that Mr. Darden had committed this robbery murder of the man name Terman.

Two of the items of evidence were identifications, those by Mrs. Terman who was working in the furniture store when the assailant came in and that of a young man name Mr. Arnold the 16 year old boy who kind of happened in the backdoor while the crime was in progress and was also shot and injured by the assailant.

Both of those identifications were shortly challenged at the trial, and both of them I think would put insubstantial doubt.

That subject was one in which we dealt at lenghts in our brief because at the time we submitted our brief the identification issue was also one upon which the court had granted cert, I may recall that in early January, so it was limited to the first question presented that at the prosecutorial misconduct.

One can judge Mrs. Terman’s identification of the assailant in a few fashions.

Number one, she gave a description to the Deputy Sherif right after the crime that bore no resemblance to the petitioner.

Number two, she described the assailant is wearing clothing that different markedly from that what petitioner was described is wearing by somebody who had seen him at the seen him scene of his automobile accident which according to the prosecution happened as he was fleeing the crime.

Number three, Mrs. Terman never was asked to or in fact identify the petitioner of any kind of a formal line up be it photo or live.

Number four, her only pretrial identification in this came into evidence on the direct testimony at trial occurred at the preliminary hearing when the petitioner was the only black man in the court room seated with counsel of the defense table and was -- Mrs. Thurman was asked to point him out and she did and one can judge the reliability of that identification by what she said when she was asked by the court in effect are you sure?

And she responded why when I walked into the court room and was seated in the back and I saw him from the rear I knew this was the man who had killed my husband, this was somebody she had seen for a few minutes during the robbery and she claimed of knowing him since she walked in from his back.

Mr. Arnold’s identification, this is the 16 year old boy, he was subject to substantial infirmity as well.

First of all he testified a trial that he had seen the assailant for only 20 to 25 seconds and in part of that time he was looking down at Mr. Terman who had been shot and laid in the doorway and was trying to give aid to him.

Number two, he said his mind went blank during that 20-25 seconds.

Number three, he was never, the subject of a lying up be it photo or otherwise.

He did while in the hospital identify the petitioner’s photo in the group shown to him but his testimony was at the trial that four or the six photos shown to him which looked nothing like the petitioner and that the one that he did see and identify lo and behold petitioner’s name across it Darden across the chest and the date 09/09/73 of the date of the crime, and Mr. Arnold testified that he had read about the crime before he was asked to make this photo identification.

The final piece of evidence that the state had that amounted to anything was a gun and the gun was indisputably of the caliber used in the crime a 38 and it was found some 40 feet from the highway and a roughly the same distance from the place at which the petitioner had his automobile accident, no dispute that he had the accident a few miles from the scene of the crime at around the same time and that gun was found a day later, not very far from the automobile accident and not very far from the highway and indeed there was no dispute that anybody might tossed it out passing the car.

So, that was the states case as the case went to the jury.

On the defendant side the defendant had taken the stand in his own behalf, he was the only witness in his own behalf.

He had told what I believe the record demonstrates to be a coherent and plausible story not in consistent with the prosecution story but to the identifications, not in itself inherently and implausible story and that was the case for the defense.

So, in sum the case as it reached the summations stage was a close one and we think the prosecution summation itself impart demonstrates that.

I think one can ask rhetorical question quite appropriately, would any sensible prosecutor have carried on when McDaniel did hear if he though he had an easy winner.

Is this the kind of thing that any experience and this was not experience prosecutor would do, if he was comfortable with his case and we think the answer to that is an obvious one and did McDaniel’s conduct itself demonstrates that he thought his case was shaky one.

As to the merits of the summation the demerits of the summation, the character of the McDaniel’s conduct I do not think the one need past beyond the brief of the respondent and the opinion of the Supreme Court of Florida to know how it should be characterized.

The respondent’s brief what is it called the summation by McDaniel here.

Utterly irrelevant is one phrase, without rational relationships that question of quilt or innocence is a second, inflammatory and irrelevancy state says, improper appeals to the jury’s emotion.

Finally, the ravings of the prosecution that is the state’s characterization, not ours of the summation by McDaniel.

I think if you read the state’s brief, it is only real argument in the defense of the summation depart from the procedural points that has raised is that the summation was so bad that no sensible juries would have paid any attention to anything that McDaniel said.

Now the majority in the Supreme Court of Florida this was the conviction and death sentence were affirmed by 5-to-2.

The majority opinion also recognized we think that the closing argument was not improper one.

What have they said?

They said although the prosecutions remarks under ordinary circumstances would constitute a violation of the code of professional responsibility.

In this particular case they amounted to harmless era when the totality of the record is considered.

Again the language used by the prosecution Justice Boyd wrote for the majority would possibly have been reversal error if it had been used regarding a less heinous set of crimes.

Illogically however the Supreme Court of Florida said this crime was such a shocking one that all of this inflammatory irrelevant nonsense was proper.

Unknown Speaker: They say proper or they said that it would not have any greater impact on than the evidence itself.

Geoffrey M. Kalmus: I do not think they quite said that Mr. Chief Justice.

Unknown Speaker: They surely did not say it was proper, you certainly misspoke to yourself there considerably.

Geoffrey M. Kalmus: I think your comment certainly a fair one your honor.

Unknown Speaker: Mr. Kalmus the majority of the Supreme Court Florida I think that did disagree with you as to the closeness of the evidence and that second last paragraph at Page 163 of your Appendix.

They say that there was a fair pretty much of an overwhelming.

Geoffrey M. Kalmus: I quite agree with you, they do say that I have read the record a few times and have tried to summarize it as we see the case as balancing it on the both sides and we do not read at that way at all and I might say that in terms of our description of the evidence as it went to the jury, the states brief does not disagree with this in any substantial way, the state takes the same facts and says we think those were overwhelming but they are not far linked at all the presentation of the facts and I agree.

Unknown Speaker: Mr. Kalmus, Florida Supreme Court said that it did not approve with prosecutors argument but what it found, I read it that it was the harmless era of the overwhelming character of the evidence.

Geoffrey M. Kalmus: They did use the phrase amounted to harmless this ever, era at one point in their opinion.

If that is quite true.

Unknown Speaker: You think it would have been stronger, if they used it more than once.

Geoffrey M. Kalmus: No, I think it would have been stronger if they have said more accurately this kind of conduct cannot amount to harmless era, that there is some conduct so outrageous, willful for conduct, no questions about that state can see it, that this goes so far beyond the bounds that it cannot be harmless era.

We cannot say that the jury was either so smart that as to disregarded entirely or so detached as to ignore the many statements from the prosecutor that grew into issue all kinds of matters having nothing to do with the quilt or innocence of the defendant.

Unknown Speaker: Would you not agree that a completely dispassionate objective description of what had taken place; the actions of the petitioner would have in itself amounted to a shocking kind of statement just saying exactly what can happen.

Geoffrey M. Kalmus: I agree Mr. Chief Justice that the crime was a shocking one and the conduct of the assailant…

Unknown Speaker: That is not quite my question; the question is if you objectively, uncommonly, and quietly describe precisely what had happened would that not shock the listener?

Geoffrey M. Kalmus: I think that it might have that effect Mr. Chief Justice but it would be in effect based upon the evidence.

Our quarrel here is that the prosecution summation for Mr. McDaniel summation had nothing whatever to do with the evidence and the state does not quarrel with that brief, they say yes it is quite right, most of what he said had nothing to do with the evidence.

Unknown Speaker: But at some part the defense even talked about the animal that committed the crime.

Geoffrey M. Kalmus: Justice Marshall.

Unknown Speaker: So, I think you want to separate the two.

Geoffrey M. Kalmus: At one point, one of the defense counsel in summation and there were two one each sides summing up, said that the assailant would do these kinds of acts would be an animal.

Of course he did not attach that label to the petitioner who he said had not committed the act which was in accordance to the petitioner’s testimony.

The prosecution picked up on that and…

Unknown Speaker: You are very quickly about that are you?

Geoffrey M. Kalmus: No Your Honor, that is one of the many items in the summation which we have derelegated to footnote somewhere in our brief.

We complain much more rigorously about the some of the other conduct in summation.

I think just to get a little of the flavor of it, I do not think you can get entirely without reading summation in full text.

If one can get a sense of it from just a few quotations from one of McDaniel’s themes, it is the one that he began with, it is one that he ended with and it is threaded throughout his argument.

As far as I am concerned he said, there should be another defendant in this court room that is the division of corrections, the prisons, that had let him out on a weekend for a while, that was the reason the issue came up.

As far as I am concerned he went on, this animal was on the public for one reason because of the division of corrections turned him lose, let him out, lets him on the public.

Can not we expect them to stay in prison when they go there, can not we expect them to stay looked up once they go there, do we know that they are going to be out on the public with guns drinking?

Mr. Terman is dead because that are unknown defendant we do not have in the court room allowed, he is criminally negligent.

Many went on, tie us into it significant to the case and he said the only way I know that he is not going to get out on the public is to put him to death, convict him first degree-murder.

It is the only way I know, it is the only way I can be sure of it, it is the only way that anybody can be sure of it now because…

Unknown Speaker: Is that by itself an improper argument when you are dealing with a statute that constitutionally authorizes the imposition of a death penalty for a prosecutor to say, the only way you can be sure this man will not repeat this kind of offence is to impose the death penalty.

Geoffrey M. Kalmus: This was in the punishment determining stage of the trial Your Honor, this was in the guilt determining stage and I think…

Unknown Speaker: You would say it was not wrong in the punishment determining stage but it is wrong in the guilt.

Geoffrey M. Kalmus: I am not certain that it would be appropriate in the punishment determining stage, but I am confident it is not appropriate when the court has not reached that stage of the case and the passage that I have partially quoted goes on in much of the same theme.

Again if one looks at some of these other themes, he talks about the defendant and his McDaniel’s wish that the defendant had been maimed or killed or shot themselves, or blown his head off over and over again he comes back to that theme.

Obviously for no purpose then to rouse up the jury to get them to decide this case without regard to the evidence.

Again there is the theme of putting the prosecutor’s credibility itself in issue, something that every court for long, long many, many years has condemned and yet it was done here over and over again by the prosecution, both by prosecutor’s wife and by prosecutor McDaniel saying, I know sure as I am standing here that this man is guilty.

McDaniel again saying, why if I were in the petitioner shoes I would have lied like till my teeth out also, remarked over and over again of that kind.

I think one can fairly conclude only that the prosecution’s misconduct was willful the state does not dispute that, and I think that is one of the key reasons here why there must be a reversal.

I would like to turn to some comparison of this situation with that in DeCristoforo in which Mr. Justice Rehnquist said a number of guidelines for dealing with this kind of an issue.

Before I do that I would like to ask whether there are any questions that the court would like to put with respect to the procedural points that the state has raised and what we have dealt in our reply brief.

Turning to the merits than and the comparison with DeCristoforo, there were I think three criteria that the Court thought crucial in DeCristoforo, crucial there in finding that there was no denial of due process through with the prosecutors statement.

There you will remember what court was concerned with was a one sentence rather ambiguous mark that according to the First Circuit at least the majority in the First Circuit had indicated to the jury perhaps that the defendant had sought to plead guilty to some lesser crime in first-degree murder and the prosecution had turned him down.

So, it was semi-implication of guilt and it was a single sentence which this court found rather uncertain and ambiguous in its meaning and of little probable impact in the context of the entire case.

Three criteria that Mr. Justice Rehnquist spoke about, one was how larger role did the prosecutor's misconduct if one may call that in DeCristoforo occupy and in the context to the whole summation indeed in the context of the trial and the answer there was it was one sentence out of what the court characterizes a lengthy summation.

Here one has the 35 type written pages of summation by prosecutor McDaniel and I had try to measure it and I think you come down around 10-12 pages if you cut out the you irrelevancies, the ravings, the carryings on about all crimes and murders that had nothing to do with the case.

Secondly, Mr. Justice Rehnquist focused in DeCristoforo, on whether the prosecution’s conduct was willful or was it a mistaken in the heat of the argument.

There it was fair to infer from the fact that a single sentence was involved and the judges in the Massachusetts Supreme Court, Federal District Court, the Courts of Appeals and here all disagreed about what that one sentence probably conveyed to the jury, it was fair that conclude that misstatement was accidental or just poor phrasing by the prosecutor in the context of something that came out without prior planning.

Our case no doubt about it, the state does not contest it.

This was a calculated willful effort to rouse up to jury to distract them from the evidence to tell them that what I am telling you Mr. McDaniel was saying is relevant to your consideration.

Unknown Speaker: You do not mean that in its full sweep what you just said that, supposing the prosecutor in the midst of a 30 minutes summary goes off on a 10 minute total irrelevancy about how the weather is been in the last few days, but it’s not at all prejudicial to the defendant, do not you have to combine the two to make your argument.

Geoffrey M. Kalmus: I agree Mr. Justice Rehnquist that if it had been of such palpable irrelevancy as what a nice weather we have been having, then one would say without any hesitation that maybe prosecutor is little crazy, but it had nothing to do with the case and the juries could not have been move by it or rational juries would not have been move by it.

Our case does not fit that mould at all.

The comments, the many, many comments that McDaniel were not off to one side, they were cut through from the beginning to the end, number one.

Number two, that they were not of such of palpable irrelevance that sensible juries unsophisticated but people of average intelligence would say, gee obviously that has got nothing to do with this case, I am going to disregard it, they would not say that to themselves about the kinds of things McDaniel was going on about.

They would say, as this court said way back in Berger v. United States, Justice Sutherland’s opinion that the prosecutor comes here with not merely official backing, but presumably to do justice and therefore I think juries would say themselves, we can take it, the things that he says have some relevance to our consideration of this man guilt or innocence.

I think that if you read these remarks in context, one must suppose, one can avoid supposing that any average group of juries would have so understood the remarks and would have taken them into account in deciding whatever they decide.

Unknown Speaker: If you have just read, the prosecutor had just got the transcripts of the testimony, prosecution’s testimony of the survivors and in effect read that to the jury, would you be complaining about his the outrageous character of his argument?

Geoffrey M. Kalmus: I do not think that I can complain if the prosecution had confined itself to the evidence that evidence in this case was terrible and the evidence was a legitimate consideration for the jury in deciding whether to convict or to quit.

I think when the prosecutor willfully departed into matters that were obviously not evidence, were not related to the evidence.

That then indeed there is a right to complain and there is a right to have a trial free of that emotional kind of (Inaudible).

I think just enclosing that, Justice Stevens made the point just last week in gardener and the statement was quoted this morning to the effect that community as well as the defendant are entitled to have a trial conducted in a intelligent equitable non-emotional fashion and to have a jury decide the case without the interjection of improper emotional factors.

Thank you.

Unknown Speaker: Very well Mr. Kalmus, Mr. Prospect.

Argument of Richard W. Prospect

Richard W. Prospect: Mr. Chief Justice it may please the court.

My name is Richard Prospect and I am appearing here on behalf of the respondent State of Florida.

I have just sat here for the last 15 minutes and listened to the number of times with which Mr. Kalmus has attributed the state, the respondent is caused with admitting, conceiving and otherwise not contesting the fact that the statements that appear in this record that were arguing the closing argument of the state’s case are irrelevant, outrageous, ridiculous and otherwise having no place in any trial in our state or any other.

I replied to him by saying what else could I do, the statements are there, I am not about to tell the court that they are not, I am not about to tell the court that it means something other than the plain meaning of their words are.

My question is or my position is, of those portions other remarks that absolutely are irrelevant to any business at hand there is nothing that ca not be said except were they prejudicial to this defendant.

The other portions that were more or less listed in the petitioners dissection of the argument are at least in part in response to certain things that the jury heard first by defense counsel.

Now the mention about, the only way I know this man is not going to get back out on the public is to sentence him to death.

Now, that came in response to something defense counsel started off in the first argument the jury heard.

If you will read that you will find that, Mr. Maloney the first defense counsel stated that ladies and gentlemen on the evidence the state has presented today, they are asking you to kill my client.

Now, McDaniel quickly corrected that misimpression, he very clearly and substantially told the jury that ladies and gentlemen we are not here to do that right now, we are here to determine guilt or innocence and nothing else.

We have a second stage of the proceeding in which I will ask for the death penalty and I'm going to ask for it because it is the only way I know to keep this man off the street.

Now that is something that we can justify because it is not response to what occur.

The other matter – let us not nitpick over any of them, let’s not reread them or anything else, I know they are there, you know they are there.

Let us decide whether they deprive this man of a fair trial.

Now, anybody and probably everybody who is familiar with his record will quickly agree that these arguments had no place there.

Everybody except defense counsel, it is not until the last page, as it appears in the appendix, does that objection occur.

Why is this, they were either asleep, they did not think anything was wrong with the remarks or and I believe this comes into the rationale of the Estelle and Francis case.

They thought perhaps we just got reversible error.

Does it take a legal wizard to see there or to sit there and to listen to man take off and in a rent and know that something is not right.

Unknown Speaker: Can you conceive of a lawyer not objecting.

Richard W. Prospect: No I cannot.

Unknown Speaker: Defense can also.

Richard W. Prospect: No I cannot.

Unknown Speaker: Or can you…

Richard W. Prospect: Well I can, I can if as I was about to say, if they think they have got reversible era.

Because that’s on the back side upfront they have got the shot at the verdict.

Unknown Speaker: You did not make an objection that an average lawyer would?

Why is it that, petitioner doesn’t the raise the question with effect of assistance to counsel that’s what I don’t, and he doesn’t...

Richard W. Prospect: Perhaps Mr. Kalmus can answer that when he gets back, I don’t know.

Unknown Speaker: But he doesn’t raised.

Richard W. Prospect: Well is it ineffective.

If he doesn’t object thinking that he got to shot the verdict.

I mean if he is right today when he says that the evidence was close I do not happen to agree, but if is right and you got a close case you got to shot at that verdict because you could always walk out that day but if you are wrong you have got guilt in there.

Unknown Speaker: I just do not…

Richard W. Prospect: Exactly that is why I think the rationale of Francis and Estelle applies.

If something is occurring that you don’t like get on your feet and say so.

Unknown Speaker: Mr. Prospect your opponent also made the point in objection during the end of the argument but there wasn’t objection on the second page of the argument Page 122.

Of course it is to an argument not being supported by the evidence in the record but that is the substance of much of the criticism there.

Richard W. Prospect: Well no it is really a very pointed and specific objection.

Unknown Speaker: He says now I object there is been no testimony of this.

Richard W. Prospect: Exactly, I am sorry I believe Mr. Darden.

Unknown Speaker: That is on the second page of the argument.

So he did start to object right away.

Richard W. Prospect: But not on the basis of being anything being inflammatory or prejudicial.

Apparently McDaniel misstated something, something of no consequence and Mr. Goodwill says there is been no testimony and McDaniel replies I'm sorry I believe Mr. Darden testified to it.

I do not believe so says Goodwill and the court reinstructs the jury.

Ladies and gentlemen it is recollection of the evidence is what is important.

Now if something that trivial…

Unknown Speaker: This kind of indicated his attitude toward the objection, no he was very sympathetic to right at the outset.

Richard W. Prospect: I beg your pardon sir.

Unknown Speaker: The Court’s disposition of the objection was well Juries heard the objection, it can decide for itself.

Richard W. Prospect: Well I do not think it indicates any prejudice towards the defendant, it is the fact.

Unknown Speaker: That’s the way the judge handle the second objection.

Richard W. Prospect: No, that second objection as I pointed out in brief is really nothing more that I request to the man stick to what evidence he had.

Now, apparently got to remember you want to go to the beginning of things.

Go to the very beginning and we see that Mr. Maloney says, ladies and gentlemen we have been here five days, we got a long trial and after or in response for the statement, the only thing he has not done that I know of his cut his throat.

Alright Maloney gets on his feet and says, Your Honor it is about the fifth time that he has come and that he wish someone would shoot this man or that he would kill himself.

I wish the court would instruct Mr. McDaniel and stick with what little evidence he has and then is perhaps and less than professional response McDaniel comes back with, you don’t have any evidence yourself Mr. Maloney.

Now, we can’t get the feel of this on the printed page but apparently the court was fed up with that and replied alright gentleman proceed with your argument.

Unknown Speaker: The judge apparently wasn’t defended by the argument either, he overruled that objection too.

He said go ahead with your argument.

Richard W. Prospect: Well he overruled a request for an instruction that McDaniel stick with what little evidence he has, that is the only form of a quote on objection I quote.

He did not say I object Your Honor on the basis that, it is prejudicial inflammatory or unconstitutional and I want to mistrial or I want at least a curative instruction.

Have he done that, he would have given the trial court the opportunity to rectify any error that was happening.

Unknown Speaker: Your view is the trial judge would not recognize there was anything improper about this argument without the counsel explaining it to him.

Richard W. Prospect: No I'm not going to say he could not recognize it, I am sure he did.

Unknown Speaker: Than the objection did not prompt any curative instruction at all.

Well, wouldn’t you have thought the trial judge would have had some --

Richard W. Prospect: He did not asked for it.

Unknown Speaker: But you are saying that, that the judge had to have that explain to him and the judge didn’t realize it was necessary?

Richard W. Prospect: No I think there are two different things, what the judge realized and what he was asked to do.

Unknown Speaker: Do we have any and there is also discussion after record about in Page 127, Mrs. Goodwill said in one of the examinations I believe, Mrs. Hill (ph) probably was another interruption there.

It seems to me that Perhaps three interruptions of closing the argument, counsel during the argument.

Richard W. Prospect: I cannot and do not read it that way, so I don’t know what that indicates.

That only indicates to me, that McDaniel stopped his argument, there was a discussion of the record between whom we do not know and he continued.

Unknown Speaker: Is it (Inaudible) in Florida when one objects the closing argument all is to do so already in the presence of the jury or is it sometimes done that you try to have a sidebar and not make such a fuss, it is rather rude to interrupt counsels you know and you try to avoid that sort of things at times.

Richard W. Prospect: I would say that based on my experience, objections are made in front of the jury and generally I really do not recall the necessity for having them taken out of the court room in order to discuss something.

I believe the objection and whatever the grounds that it is based on is here before the jury.

Unknown Speaker: you would not think it is fair to infer and I just -- the discussion of the record on page 127 might have related to the content of the closing argument.

Richard W. Prospect: No sir, it may just as well have related to a conference between McDaniel and his co-counselors as to what he was going to say next.

I mean just as you show that one way or the other.

Now we have taken into position of course that it is one thing for a prosecuting attorney to prejudice a defended by as closing arguments.

There is another thing to inflame them and it is quite another thing but the same to go out side the evidence when he does the other two, that is why we propose that three full test and we have submitted it to the court for the courts consideration in determining proper guidelines to let all concerned know what it is that is proper and what is not proper closing argument at least on behalf of a prosecutor.

We do not seem to have that restriction on defense.

Now, as we stated, without an objection there was no chance to straighten out the jury.

Now, in a nutshell and in a paragraph in the brief we stated that, that petitioner has claimed that by engaging all this irrelevant matter and this ridiculous argument the jury and we referred them to as in his brief and in reply as rural, coming from rural Florida, is implied that they were so malleable and receptive to this type of argument that they automatically more or less and necessarily went back in their jury room and based their verdict on what McDaniel said.

They disregard of the evidence and they were so moved by the man’s tirades that they came in with guilty based on that.

However he fails to mention either today or in reply, the fact that Goodwill got up after all of this nonsense.

He says ladies and gentlemen, “We are not here to listen to this man pound the table, to yell to run around and throw papers.

Do not let him embarrass you into a verdict.

You can convict him on what that man says and by the same token you can not equate them on what I say.

We are only to help you.”

That’s what the judge told them in the very beginning.

He neutralizes any effect and I dispute, that these people were so receptive to being improperly influenced.

Now, I personally take dispute with the rural Floridian aspect of this case, that has appeared twice but it wasn’t mention today, but the none the less it was not to reply brief.

The case was trial in Citrus county Florida.

It is not like Jacksonville or Miami.

Apparently petitioners of the opinion that anybody who comes from that area and who would sit on the jury in a murder case, would be the rural type.

Now to me rural means farms and our country and it is very interesting because we Floridians who are from that state no one thing and that is there are very few natives.

Most of us are transplanted.

If we look at the jury selection on the whole.

Unknown Speaker: Now, what is this rural area in Florida?

Richard W. Prospect: Citrus County Florida.

Unknown Speaker: And the town?

Richard W. Prospect: Crystal River is the closet to any sides, very pretty but not large.

So, if we look at the jury selection as a whole and we examine the jurist who sat, we see that that Mrs. Massie is a native of Ohio.

Her husband is retired army.

Mr. Dormany has been in Crystal River since 1971 and had jury service in Georgia.

Mr. Karhof is from New Jersey.

He has been in Florida for two years.

Mr. Schneider is from Illinois.

He lived in Florida for six years.

Mrs. Lucker had been in Florida since 1968.

She was the wife of retired aviation inspector. Mr. Parker has been in the area for three years.

He is a Nuclear Operator, Florida Power Corporation.

Mr. Emback has been in Citrus County since 1970, Shift Supervisor for the Nuclear Plant at Ford Power.

Mr. Hudson maybe a native, he doesn’t say.

All that his questioning reveals that, he works as an construction labor.

Mr. Mulroy is someone perhaps more to petitioner’s liking.

She happens come from Queens, New York City.

Unknown Speaker: (Inaudible)

Richard W. Prospect: Exactly sir.

Her husband was a 30 year F.B.I. Regional Director before he retired and he lived in as many as 14 different places from Nebraska, this city here today, Virginia and West Chester.

I believe that either in state of New York or Connecticut, I am not sure.

Mr. Pettilat (ph) is a retired Firemen from Sarasota, Florida.

He has lived in Citrus County since 1971.

We have Mrs. Hann, H-A-N-N who lives in Crystal River but she was a retired Supervisor from the security of First National Bank Los Angeles, California.

Finally Mr. Wall nine years with them living in Citrus County with the County Road Department Maintenance Crew.

So, we have got two people who maybe natives, who may possibly represent rural people from rural Florida whatever that means.

We look at the other people who were not selected for the jury and we have everyone coming -- we have people coming everywhere from California to New Hampshire.

We have a Marine biologist from Texas, Indiana, Orlando.

A school teacher from Orlando from Indiana and two other people who have been in the area from five to two years.

So we simply just don’t have whatever is supposed to mean by a rural jury.

I think that jury and its composition and its possible effect, the effect of the argument on this jury has to be considered very closely tied with the necessity and the rationale behind an objection.

If these people are going to be swayed then we have got to stop it as soon as it begins.

But if they are not then, they can be rehabilitated by what counsel said in his response in his rebutting closing argument or he repeated, listen ladies and gentlemen only to the evidence forget this wild man over here, we are not here to do anything by decide guilt or innocence and we of course concluded our discussion of the jury with based on this profile.

Now this is just only reflects the questions and answers which would indicate where the people and from and what they do.

Now this doesn’t reflect their responses to other questions.

Standard jury questions which are asked in all cases relative to predisposition to guilt innocence, notoriety of the case and so forth.

You will see some very intelligent answers especially those relating to Weatherspoon, you will see some very intelligent people.

We submit that these people were sophisticated enough to know that when McDaniel took off that is all he was doing, taking off and it was perhaps – they viewed him with legal egg on his face, if that’s possible phrase to use.

We just don’t think that they were persuaded to rush to judgment, put that verdict as guilty and comeback out and say, we were based on our or being inflamed, we reacted from our heart and not our head.

I just do not believe that, and I have got an idea that they did not believe it either or else they would have objected and they would have at least gotten up there and said, Your Honor would you please tell this man or I object on the grounds of this, let us stop it, but perhaps they did try to take a shot of the verdict knowing that they have reversible error because you got to remember is not it always good if you are on the defense side to get a new trial especially in a capital case.

Now if they were convinced of reversible error they know they have got to go Florida Supreme Court, that court hears was capital cases.

It takes time; we conceivably could have had a reversal occur, have to try this man within five years or more from the offense.

The second trial is always fine, where you got the possibility of missing witnesses.

You have always got the possibility of even with available witnesses dimming memories and every witness you have got against you, you can automatically ask, you mean to tell me you can remember something that clearly that happens four or five or six years ago.

It is a good shot to try and get that reversal in the second trial and it is even better shot to try for the acquital because then you can go home that day and I think that the issue involved here considering the lack of objection, considering the very thing, they are yelling about the most, the content of the argument.

Consider all of that and in light of the entire record and I think you really have to conclude that all though McDaniel – even I represent the state, I feel like I am representing one man and his conduct.

Even though he heard himself, and but not the case, I think you have got to say that, viewed in his totality Willie Jasper Darden may not received a perfect trial, not the antiseptic one and Darden merely as, as you suggested Mr. Chief Justice dispassionately read something or summarize the evidence but he got a fair one and that is what we are here about.

Unknown Speaker: If in Florida one makes an objection to the trial judge on the particular ground and the trial overrules the objection, is it generally presumed that if another similar instance arises, the lawyer is not required to make the objection again that the trial judges ruling would be the same on a subsequent case.

Richard W. Prospect: Yes sir.

As a matter of fact I believe we have case law to the effect that once you know it would be useless in light of previous ruling, you don’t have to do it, it still preserved properly.

But using that I will still ask for one objection in this record which is not there.

Thank you very much.

Chief Justice Warren E. Burger: Do you have anything further Mr. Kalmus.

Rebuttal of Geoffrey M. Kalmus

Geoffrey M. Kalmus: if I may, just a moment.

I think that what the state is asking here is the prosecutor be given license to proceed willingly and whatever fashion he may, and on whatever ground he may wish to, and to put the defendants counsel in the box of standing up and objecting every time something you said, or if letting it go by.

We all know that, that is a difficult lawyer’s decision to make in context.

Like here the state is saying, even though the prosecutor willfully makes outrageous arguments that he has no business making and he knows he has no business making.

Still the defense coun is going to be kept in that box and that seems to us that’s not a tactical choice that can fairly be imposed against willful misconduct by prosecution.

As to your question Mr. Justice Marshall as to why there was no in effect to the systems of counsel issue here.

The issue was not raised in the courts below and we did not feel that could be raised here for the first time, perhaps it is raised upon habeas I do not know.

Although I know that from past experience it is a very difficult one to win.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen the case is submitted.