ARIZONA v. WASHINGTON

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Argument of Stephen D. Neely

Chief Justice Warren E. Burger: We will hear arguments next in 1168, Arizona against George Washington.

Mr. Neely you may proceed whenever you are ready.

Mr. Stephen D. Neely: Thank you Your Honor.

Mr. Chief Justice and may it please the Court.

We are here in this matter on petition for writ of certiorari in the Ninth Circuit Court of Appeal, granted by this Court on April 18, 1977, pursuant to 28 United States Code and Section 1254.

The case involves ultimately the question of whether the state is barred from retrying George Washington Junior by the Double Jeopardy Clause of the United States Constitution.

It involves more precisely a factual situation, involving the granting of a mistrial by State Trial Judge without the defendants consent because of improper remarks made by the defense counsel in his opening statement.

The issue being, whether the state is properly barred from retrying the defendant in federal Habeas proceedings solely because of the Trial Judge's failure to make specific findings based on the standard set out enjoin regarding his actions.

The facts are lengthy and have been in dispute throughout this matter.

Essentially George Washington Junior is presently in a custody of Sheriff Boykin, Sheriff of Pima County, Arizona accused of the murder of one James Hamphill.

He was originally tried and convicted of this offense in May of 1971.

He was granted a new trial in June of 1973.

The basis for granting of the new trial was the state's failure to comply with this court's ruling in the Brady case.

Ultimately a denial of due process was found and the new trial was granted on the grounds of newly discovered evidence.

The state appealed that matter.

In that decision of the Arizona Supreme Court, the Arizona Supreme Court affirmed the finding of the trial court in June of 1974 in a memorandum opinion.

The fact that it was a memorandum opinion becomes important later during the course of the facts.

A new trial was held in Maryland in January of 1975, shortly following the defendant's notion for continuance on the grounds that you did not have all his witnesses ready and unable to go to trial.

Justice William H. Rehnquist: Was Judge Truman, the trial judge in both cases, both the first trial and the second trial?

Mr. Stephen D. Neely: No Your Honor, Judge Truman was not and there were --

Justice William H. Rehnquist: Two different trial judge.

Mr. Stephen D. Neely: Yes, Your Honor.

Shortly after the commencement of the trial, there was questioning on voir dire of the jury engaged them by the prosecutor, in the case Mr. Butler, regrading credibility of witnesses wherein reference was made to the possible use of transcripts from, and I use his term, two prior proceedings.

At the end of that time, the counsel for the defense moved for a mistrial on the grounds that the reference to prior proceedings was prejudiced over the defendant and that notion was denied.

Shortly thereafter defense counsel commenced his voir dire.

At that time informed the Panel that the defendant had in fact been previously tried for the offense, had in fact been convicted of the offense and had in fact spent some time in the prison, in the state of Arizona.

Sometime subsequent to that there was some indication by the trial court judge about his concern about the poisoning of the Panel in this matter, a request by the prosecutor to conduct individual voir dire which was conducted at short length to determine whether or not in fact any of the prospective jurors were aware of the reason behind the granting of the original in trial.

Subsequently, the opening argument or opening statement commenced.

During the course of the opening statement given by the defense counsel, there were comments regarding misconduct by the prosecutor's comments regarding the prosecutor's willful withholding the evidence, the removal of the previous prosecutor from the case, apparently as a result of this and finally there was a comment to the effect that the jury was told that they would hear that because of these things the Arizona Supreme Court granted a new trial in Maryland.

The lunch recess was held shortly thereafter.

There was a motion made by the prosecutor in the case for a mistrial.

The grounds for that motion were that due to the improper statements of defense counsel, the jury had been prejudiced.

The trial court listened to the argument, quite lengthy argument regarding the propriety of granting a mistrial at that point, based upon the comments made by defense counsel indicated some reluctance to rule at that time on the admissibility of the matter referred to regarding the Supreme Court, denied the notion and granted the prosecutor read through -- the opportunity to reopen the notion at a later time.

The Court at that time expressed some concern about the case turning into one in which the county attorney's office was being put on trial.

After that, two witnesses were called to testify and did in fact testify.

The following morning after further research on the matter, the prosecutor again moved for a mistrial citing two errors on the rules, one of which precludes reference to a past trial at a new trial, the other of which forbids the citation of memorandum opinions, as I mentioned earlier the opinion sustaining the finding of a need for a new trial by the Arizona Supreme Court was a memorandum opinion.

There was again extensive argument during which the subject of manifest necessity was raised, during which both counsels argued on a possible question of tainting the jury panel by the statements made by defense counsel and as well defense counsel suggested the possibility of curative admonition and the state argued against it by virtue of what it deemed to be the prejudice to the Jury as a result of defense counsel.

Chief Justice Warren E. Burger: The rule of Court that you referred to, is that still a rule of Court that is still in effect?

Mr. Stephen D. Neely: I am sorry Your Honor.

Chief Justice Warren E. Burger: The rule of Court referred to as having them mentioning about the prosecution?

Mr. Stephen D. Neely: Not originally, this is the original case took place --

Chief Justice Warren E. Burger: But the statement you just made was, that's what I am addressing my question to, the rule referred to a rule which was at that time still in effect?

Mr. Stephen D. Neely: Yes, Your Honor and that rule regrading the memorandum opinion is still in effect that they are not considered citation for the purposes of authority, other than within very limited circumstances they have been referred by the Ninth Circuit Your Honor.

Ultimately, after the extensive argument was concluded for the second time, the court indicated that it was ready to rule and essentially rule that the mistrial was going to be granted based upon defendants remarks concerning Arizona Supreme Court case.

Subsequently, there was special action filed by Washington's counsel, challenging the ruling of the court, that special action was filed with the Arizona Supreme Court who declined jurisdiction.

Our special action ruling incorporates all three of the extraordinary writs and presumably this is in the nature of either cert or prohibition.

The following step was to file a motion to quash the information in the Superior Court.

This was heard by Judge Birdsaw and denied and sometime during this period counsel had also filed a petition for habeas corpus with the federal court and had been told that a state remedy is yet being exhausted.

The ultimate step in state court was the filing of a Habeas petition to the Arizona Supreme Court again challenging our right to put Mr. Washington on trial again.

That petition was denied and finally the matter was undertaken by the federal district court. During the course of the proceedings before the federal district court, Judge Walsh raised on his own motion, the question of whether or not the findings of the trial court reflected a manifest necessary or reflected that the trial court had specifically found that there was Jury prejudice involved.

The court indicated that there had been a rather extensive review of the record by himself prior to asking this question and indicated in effect that his main question that remained was whether the findings indicating at the same time that if the findings were there to the effect that the court had found a manifest necessity before granting mistrial or had found jury prejudice that that would settle it and I use his terms for him.

Justice William H. Rehnquist: When you say that Court you view as it has interchanged, you used Joe for judge Walsh and the other time you are referring to the Superior Court?

Mr. Stephen D. Neely: I apologize Your Honor.

This is we are now in the district court in the federal Habeas petition and Judge Walsh is the one who indicated that he had reviewed the record and essentially raised the issue of whether or not there had been specific findings with regard to either manifest necessity being existent or with regard to jury prejudice being existent, indicated that he felt under ordinary circumstances after his review of the record that if a trial judge had thought so that he should have said so.

And essentially at that point said in his own words that would settle it for me.

One he had a rule that Habeas should follow, the case was then taken to the Ninth Circuit Court and the Ninth Circuit Court again based it's ruling in affirming the district court on the fact that there had been no specific findings by the trial court with respect to the question of manifest necessity, with respect to the question of alternatives available to the jury.

Justice Thurgood Marshall: Which opinion is controlling?

Mr. Stephen D. Neely: Under these circumstances?

Justice Thurgood Marshall: You had one opinion with two judges and one opinion with one judge and that had trouble?

Mr. Stephen D. Neely: You mean the Ninth Circuit's opinion here?

Justice Thurgood Marshall: Yes.

Mr. Stephen D. Neely: I had a great deal of difficultly in understanding the purpose of the concurring opinion.

It addresses itself to the question that there was a great deal of argument at the time of the original trial, at second trial in superior court before Judge Buchanan regarding impropriety.

It had appeared to me at that time that that was a logical partially argument to take, but the Ninth Circuit's concurring opinion did not seem to think so.

Justice Thurgood Marshall: But both of them were against you?

Mr. Stephen D. Neely: That is correct, there is no question about that Your Honor.

Justice Thurgood Marshall: I still do not know, which one is here?

Because two judge went one way in the concurrent opinion and one judge wrote for all three of them?

Mr. Stephen D. Neely: Well, I do not think that the impact of the two opinions is substantially different, but I believe that we are properly here on the basis of the original opinion, that was not noted to be a concurring opinion.

Justice Thurgood Marshall: But the point is that Judge did not evolve three?

Mr. Stephen D. Neely: Yes, Your honor.

It is our position at this point that there are number of issues that are before this Court, but that the first issue that must be addressed by the Court is the question of whether or not it was proper for either the district court or The Ninth Circuit to conclude that in the absence of specific findings by the trial court, that they were, therefore, prohibited from upholding the state's position and denying the petition for a writ of Habeas Corpus.

Our position here today is that, this goes one step beyond previous requirements of this Court in the sense that this Court has specifically maintained in the past that the question of whether or not a mistrial is properly granted, is a question of whether or not the trial court has abused this discretion.

The Court has consistently maintained from the days of present onward that it requires a consideration of all the circumstances which in our judgment would certainly make the finding of facts dealing with all the circumstances.

Some are on us with the trial court, but in any there has never to my knowledge been holding that specifically says, that the position of the Court cannot be upheld and jeopardy must by necessity attach precluding retrial merely because the trial judge failed to make specific finding of fact on these issues presented of manifest necessity and the question of alternatives.

When the records clearly supports the fact, there was extensive argument in the case, that the trial court expressed on more than one occasion in this instance, his concern over the possibility of poisoning the panel, his concern over the possibility of the county attorneys office being put on trial and clearly his concern over the impropriety of comments made by the defense counsel to the jury.

The arguments of the counsel were likely at one point the trial court deny the motion for a mistrial, giving leave to reopen it, which indicates certainly that he was not taking his responsibility lightly and finally upon ultimate argument granted the motion for a mistrial because of the impropriety remarks and presumably the circumstances surrounding.

I think that the essence of the opinion of the court immediately below, is such that it requires the trial court essentially to make lists, if you were of findings, which taken at face value would relieve the a appellate courts of the opportunity of going into the record.

It has never been my understanding nor do I read that in the cases that had been decided by this Court, that when the question of an abusive discretion, particularly involving double jeopardy is involved, that the appellate court is precluded merely by conclusary findings of fact by the trial court from delving into the record.

Justice Potter Stewart: Do you think the, the element question is in case like this whether or not there was a manifest necessity?

In other words not -- and there might not have been even though the trial judge have found that there was and there might have been, even though the trial judge had neglected to like put a label on it, is that your point?

Mr. Stephen D. Neely: Your Honor, I think that the question even more precisely, if I may is whether or not from the record in this case, entire record in this case manifest necessity is apparent.

It is my contention that it is apparent from the entire record in this case and I believe that narrows Your Honor's position somewhat.

Justice Byron R. White: Is that true if there was some reason in the record to think that judge applied the wrong legal standing?

Mr. Stephen D. Neely: I think, Your Honor that very probably that question be going the way depending upon the facts, but I am inclined to think that the question of what the judge said is far less important than the question what the judge did and what the circumstance dictated.

Now, this Court has indicated many times in the past its reluctance to characterize.

Justice Byron R. White: Well if the judge indicated that he did not think that finding a manifest necessity was necessary at all in this case as he has read the cases and that all he had to do is to find some possible prejudice?

Mr. Stephen D. Neely: I think it is very probable.

Under that circumstance an appellate court would be justified in saying that there has not been an adequate consideration, he has failed completely.

Justice Byron R. White: Even though he might canvas a record and find that there was a manifest necessity?

Mr. Stephen D. Neely: Had there been any real misconduct in the joint case I think it is really possible that the premise that you stated could have applied there.

Justice William H. Rehnquist: To what extent is habeas accorded if any obligated to give difference to a state trial court's findings and its implied finding on the subject such as this?

Mr. Stephen D. Neely: I do not believe that obligation extends or the extension of that obligation is any great factor.

It is always been my understanding and I believe that the law is clear, that the state court is permitted and in fact perhaps required to go into the facts and the circumstances surrounding the allegation of what was incorrect in the original proceedings which would justify the granting of the writ.

Justice William H. Rehnquist: When you say State Court, you mean Federal Court?

Mr. Stephen D. Neely: I am sorry Federal Court.

The question I think that first I would ask this Court to resolve is the question of whether or not the findings themselves are necessarily controlling on the determination that is made by the federal courts in revealing that the question of whether habeas corpus should be granted in situations, where a mistrial has been granted without the defendant's consent.

I think the second question would be that even if the court finds that that is not the case there is still this remaining question and that is where the standard that was applied by The Ninth Circuit Court of Appeals in this matter on review the district court judgment was the correct standard.

I think the standard that is implied at least by the court's past decisions with respective to cases and situations wherein the mistrial is based upon a finding of misconduct or improper conduct on the part of the defense attorney is somewhat different than the standard that here was applied by the court in the Ninth Circuit.

The standard clearly there was the joint standard.

I think the standard should been have been some those standards.

I think that if we are lining up the question of manifest necessity and the question of whether the ends of justice will be defeated by the continuing of the proceeding, that one of the things that should be considered in terms of the end of justice and that is the fact that the state also has a right to present its material, its case to an impartial and fairer jury.

I think a situation, for example in this case, the Supreme Court of the State of Arizona was improperly called as an unsworn witness, essentially to bolster the position of defense counsel and the defense that they clearly are several implications on a jury that can best be perceived by the trial court that could very well result and in fact probably would result in the trial court's attitude being prejudiced against the state and against giving the state a fair hearing on its trial of the case.

I think the additional reference is to a long time that Mr. Washington has spent in prison, the reference is to the prosecutor been removed from the case.

I think all of those references taken in conjunction with the again attempt to call upon the Supreme Court as unsworn witnesses to bolster the defense position could very well had been found by the trial judge under the circumstances to have compelled the granting of a mistrial in this case and could almost not have been found to meet the standard of the question whether the ends of justice necessitated in this trial.

I think it is clear that the possibility of the prejudices was so strong here that it clearly justified the finding of trial court.

I like to reserve some time if I may.

Chief Justice Warren E. Burger: very well Mr. Neely.

Mr. Bolding?

Argument of Ed Bolding

Mr. Ed Bolding: Mr. Chief Justice and may it please the Court.

A few differences with my brother regarding the facts of this case as pointed out originally by Mr. Neely.

Number one, there was no short length of voir dire by the prosecutor of this jury panel regarding their knowledge of the reasons for a new trial.

The trial judge gave the prosecutor all of the time that the prosecutor wanted to inquire into this jury panel's mind to see whether they, number one knew the reason for the granting of the new trial and number two whether that would prejudice their position, their feelings in this case.

Justice Thurgood Marshall: Did defense counsel had any problem there at on?

Mr. Ed Bolding: Yes Your Honor.

Justice Thurgood Marshall: It was both sides?

Mr. Ed Bolding: Both sides, individual question by the jurors outside of the presence of all of the jurors, that was fully inquired into Your Honor at the request of the prosecutor incidentally.

Number two, the petitioner here Your Honors omits the fact that the type of statement made by defense counsel in this particular case was made in a context of varying statements made by the prosecutor and by the defense counsel, all through the voir dire, all through their opening statement.

The prosecutor over objection and with a motion for mistrial following it stated four years ago there were other proceedings, prior proceedings, four years ago would you as jurors hold that against us that some of these people might not be able to remember things after four years will have transcript to these prior proceedings.

Chief Justice Warren E. Burger: Now, they were -- the jurors would sooner or later find if the transcripts were there that a prior trial had been held, would they not?

Mr. Ed Bolding: Your Honor, in my opinion they knew already, but yes I believe that is correct.

Chief Justice Warren E. Burger: Do you have any question about it at all?

If you bring in a transcript of a prior trial with the jurors listen to that case, they are going to know that there was a prior trial?

Mr. Ed Bolding: I think there is no question at all Your Honor.

Chief Justice Warren E. Burger: But you seem to be using matters as justification for the conduct of the defense counsel would follow?

Mr. Ed Bolding: Your Honor, the -- I do not use that as justification, as that particular part of it as justification for defense counsel.

Chief Justice Warren E. Burger: Let me turn one of the things said, after the warning by the trial judge to desist, the statement was made you will hear evidence that will show you that there was another eye witness, then you will hear evidence that, that evidence was suppressed and hidden by the prosecutor, you will hear that the evidence was purposely withheld and so forth --

Mr. Ed Bolding: Yes sir.

Chief Justice Warren E. Burger: How was the jury going to hear about that?

Mr. Ed Bolding: From the testimony from the witnesses Your Honor, from testimony of the witnesses.

Rhe County Attorney in this particular case, not the present County Attorney Your Honor, County Attorney in this particular case engaged in a course of conduct which was specific misconduct as held by the Supreme Court of Arizona, including --

Chief Justice Warren E. Burger: And the state paid its penalty for that by having a new trial ordered?

Mr. Ed Bolding: Your Honor, that is part of the penalty that they paid, yes sir.

Chief Justice Warren E. Burger: Now, in what way would this evidence, these items that I just read that you will hear, how would that be relevant evidence admissible?

Mr. Ed Bolding: Yes, Your Honor that would be admissible for many reasons.

Number one in Arizona, the law is a bit different than many of the other states.

There is a broad scope of cross examination allowing impeachment concerning bias, prejudice, motive, interest of prosecution and its witnesses just like a defendant who goes out and tries to wire up a witness or tries to get someone to say something that is not true so can the State, so can the defendant prove that against the state Your Honor, we submit.

We can --

Chief Justice Warren E. Burger: But you are representing now to this Court that under Arizona law that kind of evidence would have been received so that the statements made by the defense counsel were correct statements, all of them were correct?

Mr. Ed Bolding: Yes Your Honor, absolutely and for the --

Chief Justice Warren E. Burger: The Supreme Court did not think this was the same, did they?

Mr. Ed Bolding: No sir, Your Honor they did not make the ruling in that area.

They declined to accept jurisdiction of the special action and on the habeas filed with Arizona Supreme Court, it was denied without an opinion, so we do not know what they thought.

Justice William H. Rehnquist: Well the trial Judge certainly did not agree with your reasoning of Arizona law?

Mr. Ed Bolding: No Your Honor. Evidently he did not, although I cannot say that for sure.

We did not present to the trial judge because may I add this.

There was a motion for mistrial denied, absolutely denied.

Two more -- two witnesses presented.

Then the next morning a Rule 314 and Mr. Chief Justice I must enter here that that rule was not in affect at that time, Rule 314.

This was an old rules case.

Arizona has new criminal rules.

This second case was began after the new rules were in affect, but used the old rules.

However, that old rule 314 unknown to defense counsel at that time was in two thirds part declared to be unconstitutional and so the trial judge gave defense counsel 15 minutes the next morning to research the area.

The Burruell case was not cited to the trial judge and I like to say – I like to quote shortly from the State v. Burruell, Arizona Supreme Court case to show you what kind of things would be considered proper by the Supreme Court.

The Supreme Court said this argument, this opening statement was proper, (Inaudible) ladies and gentlemen.

Justice William H. Rehnquist: Mr. Bolding, let me, you are free to go back the evidence, I would like to ask you a question first.

As you may imagine there are presumably hundreds of Double Jeopardy rulings by various courts throughout the country in any given year and we do not try to review all of them on their facts, on their facts.

If the trial judge in this case on precisely the record that there is here had made a finding that the jury, there was a probability of jury taint and the, and the prosecution could not get a fair trial as a result of the defendant's examination, and therefore, it was manifestly necessary citing US v. Perez to grant a mistrial and then panel a new jury.

Do you think you would still be entitled to habeas corpus?

Mr. Ed Bolding: Yes Your Honor.

Simply for the reason that I think that does not go far enough in inquiring to the facts of a particular case which is what the Ninth Circuit held should be done in this case.

Unknown Speaker: Mr. Bolding, the Court of Appeals did not reach this point at all.

Court of Appeals did not look at the records to see if they if it would have supported any kind of a finding manifest necessity.

Mr. Ed Bolding: Your Honor.

I am sorry, it is my understanding that they did.

Unknown Speaker: Well I thought they just said that the court -- that the District Court had not made the findings that were necessary and they set it aside?

Mr. Ed Bolding: I believe Your Honor that the Ninth Circuit said, number one we would like to see something about manifest necessity or some kind of findings.

Number two we would like to have the trial court have considered some alternatives to adjust a declaration of mistrial and number three not withstanding all of that and in the concurring opinion, Justice Marshall, the two members concurring and I think that might probably the ruling that we look at said, we do not know.

Justice Thurgood Marshall: And so again it is one man to man.

Mr. Ed Bolding: Yes Sir, alright.

There is -- the two judges there --

Justice Thurgood Marshall: Or two Jurors --

Mr. Ed Bolding: Yes Sir.

The two judges in the concurring opinion though said we do not know what was in the trial judge's mind because here was a motion for mistrial denied.

Then the prosecutor comes in with a new rule.

Unknown Speaker: Where did they go on and say that if there had been a finding of manifest necessity the record would not have sustained it?

Mr. Ed Bolding: Your honor, I believe they say in their -- in the opinion that based on the record they cannot tell whether the judge relied on 314.

Unknown Speaker: Now, that is -- that is different.

Mr. Ed Bolding: Alright sir, I am misunderstanding you then and I perhaps --

Unknown Speaker: Suppose the trial judge had said and may -- and now the -- all of the right rule and made the findings, would you think it would have been sustain -- the Court of Appeals did not say the record would not have sustained that sort of the approach?

Mr. Ed Bolding: I believe they stated Your Honor that they wanted some basis for the ruling by the by the --

Unknown Speaker: Exactly, they want the trial judge do it first.

They did not do it themselves?

Mr. Ed Bolding: They wanted and I believe they did state that and as did the District Judge that the record just did not reflect.

Unknown Speaker: That is what I thought.

I had understood, perhaps I am wrong, but issue here was whether or not the Court of Appeals who is correct in saying that the District Court, the District Court erred in not making findings and in stating the standard of the legal standard and if the Court of Appeals was wrong in making that decision, we would simply tell the Court of Appeals that they were wrong in doing that, make it go on and look at the record themselves?

Mr. Ed Bolding: Yes.

Your Honor I would have to rescan that.

I believe that what you say is maybe correct.

It was my understanding that they did.

Unknown Speaker: What if the rule here -- what is the rule were that when a record is silent, wholly silent as to the legal standard involved and the findings and no express findings had been made, I suppose the rule is that a state judge at least it will be presumed that the State Judge applied the right legal standards and made the necessary findings in his own mind at least, although he did not write it down, what if that was the rule?

Mr. Ed Bolding: Well, Your Honor if that was the rule than that would affectly wipe out the right of the defendant to have an appellate review of that particular --

Unknown Speaker: No it would not -- then the Court of Appeals would look at the record and see if the facts were sufficient facts in the record to sustain the – it is a presume finding?

Mr. Ed Bolding: Well, perhaps sir and I just feel that that would effectively preclude appellate review and the appellate review in the Ninth Circuit did sustain Judge Walsh at the District Court level.

Judge Walsh at the District Court level did take a look specifically at the record --

Justice William H. Rehnquist: But he was express in saying that he thought the record would have supported a finding by the Superior Court Judge of manifest necessity, but ruled that since there had not been an express finding, he was going to grant habeas?

Mr. Ed Bolding: Your Honor, I think a rereading perhaps of what Judge Walsh said was that he would not have, in essence he would not have declared the mistrial because he could not see from the record that it would have been supported.

However, he would also like some findings by the Trial Judge.

That is what Judge Walsh said in my opinion sir from, from reading that opinion.

Your Honors, I think an example of what the Supreme Court of Arizona says is proper opening statement.

We will prove that the County Attorney's Office has knowledge of this narcotics running.

We will prove this from officers of the Pima County Sheriff's Office in the city of Tucson Police Department.

We will prove they investigated Mr. Lugo.

We will prove that they presented a case to the County Attorney's Office, but one case we will try to show is (Inaudible).

We will try it right here in this courtroom, we will show that the County Attorney's Office refused to prosecute the state witness.

We will show that Mr. Lugo is under these Acts.

These Acts of a criminal charge being placed against him putting him in jail, removing him from his heroin.

We will show the interest of the State witness in testifying, as you will surely hear him testify that he received a bonus.

We will show you that he went on the payroll and finally when it's all over we will prove to you that the defendant was not guilty.

That is the type of opening statement that is specifically approved by the Supreme Court of Arizona in State v. Burruell and for those reasons and the reasons previously stated, including Your Honor, the opening of the door by the prosecutor talking about these prior proceedings, we say that while the courts have held and so it is a hard position for me to argue that this is not improper words that these words that were added were not improper at there termination, it is hard position for me to argue that since the judges have said the other way, still the law is there.

We feel that the prosecutor opened the door by talking about these prior prosecutions and this is one thing that was omitted from the fact presentation here of course.

After the prior proceedings mentioned, after trial talked about, then the prosecutor also talked about the fact that there was a, a preliminary hearing with a magistrate who filed an information or an information filed based upon the Magistrate's ruling.

Now, you are not hearing a claim before you today that the words of the prosecutor at that particular time were improper.

Justice Thurgood Marshall: But none of that is in any of these opinions?

Mr. Ed Bolding: Yes Your Honor.

It is in the – it may not be in the opinion itself, but it is in the appendix regarding Judge Walsh's the District Court's ruling and his colloquy with the prosecutor at that time.

Justice Thurgood Marshall: But it is not in his opinion?

Mr. Ed Bolding: No.

Justice Thurgood Marshall: It is not in the court, in either one of the Court of Appeals?

Mr. Ed Bolding: No, because that point was not taken up on appeal in any manner.

Justice Thurgood Marshall: So why are you arguing that?

Mr. Ed Bolding: That opens the door Your Honor to the defense counsel's last statements.

Justice Thurgood Marshall: So we can get in that proof?

Mr. Ed Bolding: Well sir.

Unknown Speaker: Nobody else can.

Mr. Ed Bolding: Well, it is our contention Your Honor that that is exactly what -- one of the reasons for allowing this type of a, of a statement.

In other words, the prosecutor was according to the finding by the Supreme Court, the Arizona Supreme Court in its original opinion.

The finding that the case should be upheld by the trial court if there was a misconduct of the County Attorney and that opinion Your Honor which you have states fully or semi-fully the facts upon which that conclusion was based.

Justice Thurgood Marshall: You have the memorandum?

Mr. Ed Bolding: Yes, Your Honor and that is --

Justice Thurgood Marshall: Throught the opinion.

Mr. Ed Bolding: Well, Your Honor that is under 48 (c), Rule 48 (c) this is law of the case.

It is a memorandum opinion which may not be cited by another in another case at another time, but this is specifically under 48 (c).

It has a provision saying that it is the law of the case notwithstanding and so that is why we feel that we are entitled to cite it here Your Honor.

Chief Justice Warren E. Burger: Well, did we grant review, to review these matters you are talking about now or they -- were they not washed out on a new trial was granted?

Mr. Ed Bolding: No.

Your Honor, I do not believe they were washed out when the new trial was granted.

Of course, what we are getting at in part here I thought was the fact that the County Attorney is saying well he had no right to say what he said and that you therefore should take a look at --

Chief Justice Warren E. Burger: Well, I thought what we were reviewing here was whether the misconduct of the defense was so gross that it warranted a declaration of a mistrial and that is the question before us and whether it was appropriately analyzed?

Mr. Ed Bolding: Yes Your Honor, I think that is correct.

We feel that the background is a part of the determination as to -- because you have to take the defense counsel's conduct in context as it happened during the trial.

Chief Justice Warren E. Burger: But if you wish to use your limited time arguing that go ahead.

Mr. Ed Bolding: Well Your Honor, I mentioned that I think that is an integral part of it and I think that that is adequately covered in the brief also.

The evidence Your Honor, Mr. Chief Justice that you have mentioned could have come in regarding credibility of the witnesses, in particularly -- in particular the chief detective of the -- handling this case and it is cited down at page 8 of our brief, talks about the fact that there is in response to a question by a defense counsel at another hearing talks about the fact that there is a number of times when I talk to you Mr. Defense counsel when I really do not tell you the truth.

This is the type of credibility that we would be getting into with this testimony and we feel that Arizona law clearly -- allows us to go into that, that type of testimony Your Honor and that type of statement in the voir dire and in the opening.

Unknown Speaker: Mr. Bolding is there one Arizona case that most clearly supports your view that this testimony about the prosecution suppressing the evidence of the witness who saw the man run away that that would have been admissible as a preachment?

What is the strongest case you have got to that preposition?

Mr. Ed Bolding: Burruell.

Unknown Speaker: Burruell?

Mr. Ed Bolding: Yes Your Honor.

It is our contention and to please the Court that the opinion of the Ninth Circuit accurately states what happened here.

The opinion of the Ninth Circuit says we do not really know what happened.

Why the trial judge granted the mistrial.

It could have been because he, as shown in the concurring opinion, it could have been because he was cited this Rule 314 which as I stated before in two of its sentences, two out of its three sentences was held to be unconstitutional and which was not in affect at that time, which was the old rule that was in affect for this case only.

However, we recognize that it was in, upon research that it was in effect at this particular time.

The Ninth Circuit says maybe or it is as possible for the trial judge to have ruled that the remark was error, therefore, we have to have a mistrial, as it was for the trial judge to have looked at the record, considered everything, just determined that there was a manifest necessity for a mistrial for a new trial.

The Ninth Circuit we submit Your Honor states the situation very accurately.

The Court of Appeals in this case, the Ninth Circuit used a totality of circumstances test in which one of the factors considered was whether a finding of manifest necessity was made or whether there was a consideration to the alternatives to the mistrial.

The court expressly said it did not require the recitation of these talismanic words manifest necessity, but said that of review that they – that their record reflected that the trial court did not make any such finding and did not consider any alternatives.

The court did not express that any impropriety by the defense counsel was of the magnitude that it would prevent the jury from the arriving at fair and impartial verdict and in the concurring opinion sir, it was stated that there was no explicit or implicit finding of manifest necessity.

It was stated that a greater part of their argument was devoted to whether the defense counsel's remarks were improper and whether the Supreme Court's decision could be brought to the jury's attention.

When the motion was first argued the --

Justice William H. Rehnquist: Well, if the conclusion of the Court of Appeals was that it was just as likely that the Superior Court Judge had granted a motion for a mistrial without finding Manifest Necessity then it was.

It would necessarily follow then that the Superior Court Judge would have dismissed or had granted a mistrial of the prosecution's case for what it conceived to be misconduct of the defense counsel in a situation which would not have permitted re-trail.

Now, that is just an absurdity?

Mr. Ed Bolding: I am sorry.

Justice William H. Rehnquist: Well, you say that the Ninth Circuit says the Superior Court Judge may not have found manifest necessity or might not have though there was manifest necessity.

Mr. Ed Bolding: Yes it did.

Justice William H. Rehnquist: Well, if that were the case, the superior court judge would have granted the prosecutor's motion for a mistrial based on defense conducts claimed a misconduct in such circumstances that the case could never have been brought again.

That just does not make any sense in a rational system of jurisprudence?

Mr. Ed Bolding: Well Your Honor, it was granted only without any additional matters being brought to the trial judge's attention.

Only with the additional thought of this Rule 314 which says do not talk about the previous conviction in essence and that was when the mistrial was granted.

Unknown Speaker: Well, was the mistrial motion argued at all, was that it?

Mr. Ed Bolding: Yes.

Unknown Speaker: And did people talk about what the rules were?

Mr. Ed Bolding: Yes Your Honor, to an extent.

Unknown Speaker: Well, do you think -- are you suggesting that the judge was ignorant as what the controlling standard for a mistrial was?

Mr. Ed Bolding: I think that this judge thought Your Honor that because of Rule 314 which says do not talk about the previous conviction, because that mentioned, that therefore, there was error, and therefore, the mistrial was granted because he did previously say --

Unknown Speaker: So you are suggesting that he was ignorant of the controlling federal standards, is that it?

Mr. Ed Bolding: Yes sir.

I am saying that he previously stated that --

Unknown Speaker: So you think judges have to say what the standard is in order to avoid being thought to be ignorant?

Mr. Ed Bolding: No sir.

All I want them to state is what the -- on what basis they are granting the mistrial?

Why they are granting a mistrial?

Unknown Speaker: Well, suppose you got up and said -- in argument and said Judge the only way you can grant this mistrial is if you follow Perez.

The judge says I know that and that he just grants the motion for a mistrial.

Mr. Ed Bolding: Well, it is a serious problem and one that perhaps this Court could address, although we feel that this is not the case in which a broad, a policy decision needs to be made because of the ruling of the Ninth Circuit, because of the Rule 314 that was -- that the Ninth Circuit talked about and we still feel that a good rule to follow and one which is being talked about by --

Justice Thurgood Marshall: Do you say is that you think that we took this case to pass on local Rule 314 of the State of Arizona?

Mr. Ed Bolding: No sir, I do not.

Chief Justice Warren E. Burger: Suppose the judge had said under the motion for a mistrial that I am granting the mistrial because grossly, unprofessional conduct of the defense counsel which has tainted the minds of all the jurors to the point where there cannot be a fair trial.

Do you think that would be equated by a reviewing court to a finding of manifest necessity?

Mr. Ed Bolding: Probably, if you went on that particular point, it could well be sir.

Chief Justice Warren E. Burger: Well, why do you think he granted a mistrial?

Mr. Ed Bolding: I think he granted the mistrial because of the mention of the granting of the former mistrial, a new trial, I am sorry and because of Rule 314 of the Arizona Rules.

Chief Justice Warren E. Burger: But even if Rule 314 had never existed on the books or had become obsolete and had been eliminated and you had no rule, does not the law of Arizona permit a judge to use sound judicial discretion to determine whether or not there has been taint that would impair a fair trial?

Mr. Ed Bolding: Yes sir.

Chief Justice Warren E. Burger: Then why is the rule important one way or the other?

Mr. Ed Bolding: Well, only because of the sequence of events in which that happened and that is granting -- the mistrial motion denied, previous discussion about the admissibility of whether the Supreme Court agreed that the new trial should be granted and then the granting of the mistrial after the rule was shown to the Judge.

It was that simple Your Honor and we submit that --

Justice Lewis F. Powell: What you are saying, if the 314 Rule had never come up, never been mentioned there would have been no mistrial?

Mr. Ed Bolding: That is correct sir.

Justice Lewis F. Powell: And that – and the inference came there would have been no mistrial because there had been no finding of manifest necessity?

Mr. Ed Bolding: There had not been that far – thus far in the trial, yes Your Honor, I agree with that.

Justice Byron R. White: And you say that even though it was the defense that made the first motion for a mistrial?

Mr. Ed Bolding: It was the defense that made the first motion for a mistrial upon the prosecutor's improper remarks, we feel were improper remarks and the objection later on to the prosecutor's remarks about the Magistrate in the preliminary hearing again and objection again overruled.

Justice Byron R. White: Well, with all this wrangling and counter wrangling, could not the judge have determined that a fair trial just could not be had and does not that equate with the finding of manifest necessity?

Mr. Ed Bolding: He could have sir, but we submit that we we do not know that.

We do not know what he found.

We know only the sequence of events sir.

Thank you very much.

Chief Justice Warren E. Burger: Do you have anything further counsel?

Rebuttal of Stephen D. Neely

Mr. Stephen D. Neely: Just a moment Your Honor.

Mr. Chief Justice and may it please the Court.

One thing I do want to make clear particularly reflected by a question by Mr Justice Rehnquist.

I did not take the position that Judge Walsh would necessarily have stated or found that the record supported the finding of the mistrial.

The position I take was that Judge Walsh indicated that he had read and reread the record and that had there been a specific finding that would have basically settled It for him.

The implication that I read from that is that we do not really know whether or not he agreed with the trial Judge's finding, but that the basis for his granting the writ of habeas corpus was purely and simply that the trial judge did not say I find a manifest necessity.

I think that is clear from the arguments of the counsel and the answers to the question that this case is one that turns on the facts, but again I would suggest that the position taken by the Ninth Circuit Court of Appeals in this matter is essentially that in ordinary circumstances questions are raised, arguments are heard and findings are made and that the only thing that is missing in this case is the findings and I think that their position clearly is, that if those findings had been there, it would have been a different story because they talk about reluctantly dismissing and I think it is also clear that the basic approach they used here was to say we decline to imply from the impropriety committed by defense counsel that this court made a specific finding of manifest necessity.

I do not believe that that is a fair standard to apply against trial judges.

I believe that there has to be, when you have set out your standard as being an abuse of discretion on the part of trial judge that there has to be an addition to the scrupulous exercise of discretion by the trial judge, a scrupulous exercise of the Appellate Court's review of the record.

In essence, I think that the Appellate Court has to go back to the record and has to determine whether or not the trial Judge's position was or was not abuse of discretion.

Surely, if I came up here as a defendant and said that there was an abuse of discretion you would not hear me.

On the other hand to say as a prosecutor, well, there may have been, but there is findings here that specifically state that there was manifest necessity and all the alternatives were considered and that is final on the issue.

Thank you very much.

Chief Justice Warren E. Burger: Thank you counsel.

The case is submitted.