LAKESIDE v. OREGON

Transcript: 

Argument of Phillip M. Margolin

Chief Justice Warren E. Burger: We will hear arguments next in Lakeside v. Oregon.

Mr. Margolin, I think you may proceed whenever you are ready.

Mr. Phillip M. Margolin: Mr. Chief Justice and may it please the Court.

Ensio Lakeside, the petitioner in this case was charged with a felony crime of escape of the second degree.

Because he was indigent, an attorney was appointed to assist him in the preparation of his defense.

At trial, he raised a defense of lack of criminal responsibility and put on witnesses, including an attorney and a psychiatrist to support his position and explain his position to the jury.

Now, as part of his trial strategy, it was decided between the petitioner and his counsel that Mr. Lakeside would not take the stand and that no comment on this fact will be made by Mr. Lakeside’s counsel during the course of the trial.

Just before instructing the jury, the trial judge told Mr. Lakeside’s counsel that he was going to read the following instruction and the instruction reads, “under the laws of this state, a defendant has the option to take the witness stand to testify in his or her own behalf.

If a defendant chooses not to testify, such a circumstance gives rise to no inference or presumption against the defendant and this must not be considered by you in determining the question of guilt or innocence.”

Mr. Lakeside’s attorney objected to the giving of this instruction on the grounds that giving the instruction would highlight the fact that Mr. Lakeside had not taken the stand and call the jury’s attention to this fact.

The Court told counsel that he felt that it was best to give this instruction so as to protect the defendant’s rights.

Now, the instruction was given to the jury.

On appeal, we have two questions that we are presenting for the Court’s consideration.

First we think that the judge’s action violated the Fifth Amendment to the constitution, United States Constitution that Fifth Amendment gives a defendant in a criminal case, the right to decide not to testify and this Court has held in Griffin v. California that if the defendant decides to exercise his right, the prosecutor and the judge should not make a comment on it to the jury.

Now, it is our position that even though the judge was acting with the best of motives and even though the instruction was worded so as to be helpful to the defendant, nonetheless in this set of circumstances by reading that instruction the judge did more harm than good and in affect commented on the exercise of the constitutional right by the defendant.

Additionally, we contend that the trial judge violated the Sixth Amendment to the United States constitution.

Mr. Lakeside had a lawyer appointed to help him out and to figure out what his trial strategy should be.

There was a decision made and the decision was that they were not going to comment on the fact that he was not going to take the stand and we feel that when the trial judge took it upon himself to interfere with this strategy that he was interfering with the assistance that Mr. Lakeside had been given by his --

Justice Thurgood Marshall: Well, that goes to every time a judge overrules an objection?

Mr. Phillip M. Margolin: No.

Justice Thurgood Marshall: Where would the line be?

Mr. Phillip M. Margolin: First of all it is obvious, if there is a legal basis for the judge’s decision, for instance, let us say in the course of the trial a lawyer tries to put on perjury testimony or tries to put on testimony which violates the heresy rule, in that case the judge would have to interfere with the trial strategy of the defendant because that trial strategy would be illegal.

In this situation, our position is that there is no legal or ethical basis for the judge substituting his opinion of the proper way to conduct a defense for the decision of the --

Justice Thurgood Marshall: And what case you have that is really close to that?

Mr. Phillip M. Margolin: In --

Justice Thurgood Marshall: Any place?

Mr. Phillip M. Margolin: Well, I cited in my brief the Geders case and the Brooks v. Tennessee case --

Justice Thurgood Marshall: I do not know anything in that case that said when you object on question that in effect of counsel?

Mr. Phillip M. Margolin: Okay.

The reason I cited Brooks and the reason I cited Geders is virtually in both situations where this Court held that when a --

That the Court said --

Justice Thurgood Marshall: That is your first point.

I am telling that your second point, that was Fifth Amendment, was it not?

Mr. Phillip M. Margolin: No.

Justice Thurgood Marshall: Which one do you have on the Sixth Amendment?

Mr. Phillip M. Margolin: Right.

Brooks and Geders were both Sixth Amendment.

Brooks was on the Fifth and Sixth Amendment and in the Geders case was Sixth Amendment and in both of the situations this Court said that the trial judge ordinarily has powers to do certain things.

For instance in Brooks --

Justice Thurgood Marshall: Your general language is that if a judge gives an instruction over the objection of the defendant’s counsel that is violation of the Sixth Amendment?

Mr. Phillip M. Margolin: That is correct.

Justice William H. Rehnquist: Following up my brother Marshall's question, supposing the judge at the close of trial said, “I am going to give an instruction on reasonable doubt and that the defendant is entitled to the benefit of a presumption of innocence and his counsel objected to be giving a bad instruction,” would you be making the same point here?

Mr. Phillip M. Margolin: Well, I think my basic position is that I do not know if the two situations are analogous and --

Justice William H. Rehnquist: If there are not analogous, why are they not?

Mr. Phillip M. Margolin: Our position is that the assistance that the attorney gave here was to advise the client on the exercise of another constitutional right, a constitutional right not to take the stand and that the trial attorney and the petitioner’s position in this should be honored by the Court unless there is some legal basis for the Court’s intervention and the reason I cited the Geders case and the Brooks case was because in those cases, the Court said in Brooks that ordinarily the judge does have a right to figure out what the order of proof will be and in Geders ordinarily a trial judge can decide when witnesses should be sequestered, but then the Court went ahead and said that if there is a conflict between these ordinary powers of the Court and the Sixth Amendment, that the Sixth Amendment should prevail and that the trial judge should not interfere with this assistance that the defendant is getting from his lawyer.

Here, I think it is really a serious situation because the defense counsel advised Mr. Lakeside on the exercise of the Fifth Amendment right not to take the stand and from a practical viewpoint that is about the most important decision that a defendant in a criminal case can make.

The defendant who does not take the stand, it causes a lot of problems as far as his defense goes and he makes that decision and then a trial strategy is devised so as to soften that blow with the jury, I think it is wrong for a trial judge to come in at the end of the trial and interfere with the assistance in the trial strategy that has been plotted out.

Justice Thurgood Marshall: Mr. Margolin, let me put in another way.

If we rule that it is a violation of Fifth amendment would he be satisfied?

Mr. Phillip M. Margolin: Oh! Sure, of course.

Let me go --

Chief Justice Warren E. Burger: What would you say if the defense counsel had asked for precisely this instruction and the Court said, “Oh! No, I do not dare give that,” the Supreme Court does not like that sort of thing and then he is convicted and goes on appeal saying he had asked for the Court to instruct the jury on a constitutional right and what about that?

Mr. Phillip M. Margolin: Okay, you mean something like in Bruno except on constitutional grounds.

Our position is with regard to the Fifth Amendment and this has been that, okay, there is further authority as to whether what the judge did here violates the Fifth Amendment and I think that the problem that courts that have ruled against our position have is it they cannot understand how instruction that supposedly worded to help a defendant, can ever hurt him.

I think the most important thing I can put across to this Court is that every criminal case has a different set of facts.

You do not have the same situation in each case and sometimes that instruction is very helpful, but sometimes it can hurt your client.

I would like to give you two quick examples just to show you the realities of courtroom situation and how this identically worded instruction can be good in some cases and bad in some cases.

Let us take a situation where its helpful.

You have a murder case and the defendant as made the statement that he was never at the scene of the crime.

Then the police find a fingerprint at the scene of the crime.

As soon as the jury hears that they are going to be waiting to hear that defendant come up on the stand and tell them how the fingerprint got there and if your defendant cannot take the stand, you are going to want to have that instruction given in the hopes that the jury will follow it and not hold that against him that he did not get up on the stand.

Also I can give you a different situation.

You have a burglary --

Chief Justice Warren E. Burger: I am not sure all defense lawyers would agree with you on that proposition?

Mr. Phillip M. Margolin: Well, I am just saying that one point I think should make here also is that because every case has a different set of facts, I think that this Court should have faith in the attorney who lives with the case, who is prepared it for months and who conducts a voir dire and gets a chance to size up the jurors who are going to be sitting on the individual case and let him make the type of decision as to whether or not that in this particular case the instruction should be given or should not be given.

I think the trial attorney has advantages over a trial judge who just gets the case on the day of trial and I note sometimes if you leave with a case for several months you get insights into it that a person who just comes on it for one or two days he never does.

So I think its really important here to put faith in the trial attorney and let him make that decision and not give the Court the unfetted right, especially when we are dealing with the advice on something as important as the exercise the Fifth Amendment privilege, not to take the stand.

Getting back to the second example, that I want to give the Court, if you have a burglary, a woman wakes up in the middle of the night and sees a man in her apartment.

She subsequently identifies him in a line up and your client is arrested.

He comes to you and he tells you he is completely innocent, but he has got a very bad criminal record, may be involving burglaries or sex crimes, something that would upset the jury.

Additionally, you think he will make a very bad appearance on the stand.

When you get to trial, you put on witnesses that demolish the eyewitness to show that she could not possibly have seen what she said she saw.

She had been using narcotics that evening and was out of her mind.

Additionally, you put on 25 alibi witnesses who say that the defendant was with them the whole time that this burglary occurred.

In a situation like that, the jury probably is not even going to expect to hear from the defendant because his witnesses have given the jury all the information that they would need to arrive at a verdict in his favor and I think petitioner’s case fits into that second category.

He had a medical defense, a psychiatric defense.

He had put on witnesses who explained his position to the jury and probably had the judge not read the instruction, the jurors would not have been thinking too much about the fact that he did not take the stand.

Now, I just want to check my notes because I think that basically our position.

The only other thing I did want to go into is an argument that respondent raised in his brief and one of the arguments that was made in the brief is that you cannot have error in a situation like this because jurors will follow the instruction.

So even if the judge should not have given that instruction, once the jurors heard the instruction, then they would follow it and there would not be any prejudice to the defendant’s position and I do not think that that is an appropriate argument for this case.

The reason I say that is very simple.

First of all there is debate for years whether or not jurors do follow instruction or do not, but if the trial judge had honored the request that was made by the defense counsel and had not given the instruction then you would have eliminated the possibility that the instruction would cause any harm and you would eliminate any possibility of guesswork or any need to make guesses as to what jurors do or do not do.

Unknown Speaker : Mr. Margolin, what does your constitutional rights talk.

Suppose your man who did take the stand and testified, does he have a constitutional right to request the Court to instruct the jury that he did not have to take the stand?

Mr. Phillip M. Margolin: I think that he does.

I know this Court in Bruno said that in situations where he allows, you are asking me a situation where he does in fact take the stand and then asks for it?

Unknown Speaker : That is a tough question?

Mr. Phillip M. Margolin: I do not know if in that situation whether it arrives to a constitutional level or not since he did exercise a constitutional right.

I am not sure whether in that type of situation if it would get to the same level, but I do think it our in --

Unknown Speaker : It settles the law that he waives the right by taking the stand?

Mr. Phillip M. Margolin: Well, sometimes you would ask for the instruction anyway as means of --

Unknown Speaker : They ask for it, but have you not waived any constitutional right by not getting on the stand?

Mr. Phillip M. Margolin: By actually taking --

Unknown Speaker : By getting obviously?

Mr. Phillip M. Margolin: Well, I think you would waive the right, because you have not exercised here.

Unknown Speaker : It is sure he did not waive here though, he did not --

Mr. Phillip M. Margolin: That sometimes that you would ask for that instructions so as to bolster your client to show that he did not ask for it.

Unknown Speaker : But question whether you have a constitutional right to claim some benefit of the privilege not to testify when you are going ahead and testify?

Mr. Phillip M. Margolin: Yeah, in that situation I do not think it would get up to a constitutional level.

I do not know whether you would have any right in that area, but in our case --

Unknown Speaker : You speak of Fifth Amendment providing that the defendant is not required to take the stand and I realize that Griffin in reached that conclusion under the facts in that case.

The Fifth Amendment speaks in terms of compulsion.

Where is the compulsion here?

You have a neutral instruction.

Mr. Phillip M. Margolin: Okay the problem comes in that in the Griffin’s case this Court held that if the person chooses not to testify that it is improper to comment on that because that is like penalizing the fellow for exercising his right.

Our position is that this instruction hurt my client because it drew attention to the fact that he had not taken the stand and it is the same thing as prosecutor getting up and saying hey look he did not take the stand, why did not he give his side of the story?

Unknown Speaker : In Griffin as I recall not only did the prosecutor make some reference to the bailiff to take the stand, but the judge himself told the jury that it could consider that fact?

Mr. Phillip M. Margolin: That is right.

Unknown Speaker : That was far from being neutral by the judge?

Mr. Phillip M. Margolin: That is right.

Our position is that the wording of the instruction is not relevant.

Unknown Speaker : That it is just like -- your position is that there is compulsion either to mention or not mention that this constitutional right have a neutral air to mention may be?

Mr. Phillip M. Margolin: Well, the problem comes in --

Unknown Speaker : Compulsion?

Mr. Phillip M. Margolin: What it does is, it is a comment on the fact that he did not get up and give his side of the story and even though its worded nicely, it still creates the evil of drawing attention to that fact.

Unknown Speaker : That is not what the Fifth Amendment says.

It speaks intent of compelling a witness to give evidence against themselves?

Mr. Phillip M. Margolin: Yes, but Griffin said that once that decision to not take the stand is made, the prosecutor or judge cannot comment on it.

It does not really have anything to do with the basis for the Fifth Amendment.

It is just talking in terms of not penalizing a person for exercising his constitutional right and it is our position that you are penalizing --

Unknown Speaker : Well, Mr. Margolin is that really the whole analysis in Griffin?

Is it not the point that if a defendant before he makes the choice of whether or not to testify, knows in advance that this kind of comment will be made by the judge and the prosecutor, there is a form of compulsion that influences his choice and is it the same true here if he knows he does not have any choice on whether the instruction is made, he knows in advance that instruction he does not want here will be given, that has some influence on his choice and there is at least a modest form of compulsion --

Mr. Phillip M. Margolin: That --

Unknown Speaker : May be its not as strong as saying here is a subpoena to get on the stand?

Mr. Phillip M. Margolin: That may occur.

It may also create a situation where the attorney has to try the case differently and the attorney may have to, for instance --

Unknown Speaker : Well, does it not influence the choice of whether or not to take a stand if you know what kind of instructions can we get?

Mr. Phillip M. Margolin: It may.

I --

Unknown Speaker : One a judge might give one kind and another, another?

Mr. Phillip M. Margolin: I would agree with the Court, it may and that might cause other serious difficulties.

If the Court has no further questions --

Unknown Speaker : Mr. Margolin, perhaps you have answered this, but you have raised a Sixth Amendment question too, have you not?

Mr. Phillip M. Margolin: That is correct.

Unknown Speaker : Was this raised below?

Mr. Phillip M. Margolin: I should point out to the Court that the first that the respondent raised any objections in any other courts that heard this argument hearing it was in its response to petition for certiorari.

This Sixth Amendment argument was argued in front of the Court of Appeals and it was argued before the Supreme Court without any objection by the respondent.

If you read the Court of Appeals’ decision out of Oregon, you will see that the trial strategy argument is basically was the foundation for their opinion and the respondent was informed prior to oral argument at the Court of Appeals that the Sixth Amendment argument would be raised in addition to the argument on the Fifth Amendment and I think that the courts in Oregon did consider this and it is appropriately before this Court.

Unknown Speaker : Certainly the Supreme Court did not mention it, did it?

Mr. Phillip M. Margolin: Supreme Court did not mention it and that is why I wrote the petition for rehearing which is in the appendix, but the arguments were made in front of the Oregon Supreme Court and I do not know if this Court gets as part of the record the taping of the oral argument, but that would contain the arguments.

Additionally, Supreme Court when it granted review in this case, this is also in the petition for a hearing, the question that it asked was whether it was error for the judge to give the instruction over objection and then what the basis for such a rule was and it did limit the basis to the Fifth Amendment, so I do think the question is appropriately here.

Chief Justice Warren E. Burger: Mr. Denney.

Argument of Thomas H. Denney

Mr. Thomas H. Denney: Mr. Chief Justice and may it please the Court.

Like Mr. Margolin, I think my argument will not be a lengthy one, but I would like to start it since Mr. Margolin spoke a little about the nature of the case.

I would like to flush out the actual facts that came out on the trial and that were developed in the presence of the jury.

I do this if for no other reason not because I am questioning Mr. Margolin’s specific trial strategy in this case, but to illustrate that reasonable men at least could differ as to whether or not an instruction not to draw an inference to take from the defendants failure to testify which is proper in this case and that in any case the judge’s action in doing so was not an arbitrary or capricious one.

In addition, perhaps the facts themselves as they were developed in this case, and they are not in the any of the credit portions of the record that the Court has, but they are in the record which was transmitted.

I might begin by saying that the defendant Lakeside does have quite a background of an unhappy family history.

He was a heroin addict and an alcoholic.

He had a prior conviction of attempted murder, dating from about 1972.

He was sent to the Oregon State Penitentiary, paroled after about nine months, violated his parole and was returned --

Justice Thurgood Marshall: Am I correct that the reason he did not take the stand was because he did not want all of this known?

Mr. Thomas H. Denney: Mr. Justice Marshall, that seems to be the argument, but the fact is it all came out.

Justice Thurgood Marshall: But why are you just flaunting it around?

Mr. Thomas H. Denney: I am not flaunting at around improperly Mr. Justice Marshall I believe because my point is the jury heard all of this.

All of this came in the testimony of the state psychiatrist, one Dr. Kolbeck who told the jury all of this.

Justice Thurgood Marshall: Oh! I did not (Inaudible).

Mr. Thomas H. Denney: Yes, that is my point.

He was then charged in about April 1975 with the convictions that led to his incarceration from which he escaped.

There were charges of disorderly conduct, theft in the second degree, criminal mischief and harassment, all of them misdemeanors under Oregon Law.

They rose out of three separate incidences and alcohol was involved in at least one of these cases.

As a result of a plea bargain negotiated between the District Attorney and the public defender of Portland who was representing Mr. Lakeside at the time, the agreement was that Lakeside would plead guilty to three of these charges, the fourth one the harassment charge was dismissed.

He would be placed in the Multnomah County Correctional Institution which is a minimum security place, primarily for work release people rather than being sent to the maximum facility for misdemeanance in Multnomah County, Oregon, that is the Rocky Butte jail.

He expressed all and the other and this was the important part of the condition as far as Lakeside was concerned in his theory of the case was that he would be required to take anti-abuse for his alcohol problem while he was in the correctional institute.

He was somewhat reluctant to do so as he told his counsel at the time because he had been made sick by having taken anti-abuse before, at least that was what he told his counsel.

Anyway he was received in Multnomah County Correctional Institute on May 09, 1975.

He started on anti-abuse on May 21.

He received some five or six dosages of it, the last being on June 15.

On June 16, he was given a sign out pass from 6.00 a.m. on June 16, to terminate at 10.00 p.m. on June 17 and he did not return from this sign out pass and under Oregon law failing to return from a release or from a temporary leave situation constitutes an escape.

Efforts were made to locate him and on the June 23, the defendant’s mother called the police, they said, he was at home and the police went and found him passed out and very drunk and they returned him to the institution rather and that facts --

Chief Justice Warren E. Burger: I take if this is all in the record?

Mr. Thomas H. Denney: This is all in the record.

Chief Justice Warren E. Burger: As part of his defense?

Mr. Thomas H. Denney: No.

Chief Justice Warren E. Burger: Then part of his prosecution?

Mr. Thomas H. Denney: It was all brought up, all of that I have said so far was brought up in the prosecution’s case.

The defense as I have said did go to a mental disease or defect also attempting to make some use of the fact that this was aggravated by the use of anti-abuse.

And the real dispute of fact that occurs I think in the whole case was whether or not the anti-abuse really did indeed make him sick or whether it was a combination of alcohol and the anti-abuse which led to the condition that was observed.

The two guards at least at the correctional institute said that he never complained to them about having any reaction from the anti-abuse, even though it was administered to him several times.

His mother and his sister testified in his behalf that he complained to them constantly about the reactions he was having from the anti-abuse while taking his --

Chief Justice Warren E. Burger: And all this I take it leading up to the suggestion that it was an assistance and aid and help him to get this instruction?

Mr. Thomas H. Denney: Yes, Your Honor.

I am not insisting on overriding trial strategy.

I am saying that the trial court could reasonably have concluded the instruction was proper in this case.

In the first place as Mr. Justice Marshall was asking and as I have tried to point out, his prior criminal record came out anyway so this is one of those cases in which you say he kept off to stand not to get the criminal record before the jury.

There was an insanity defense in this and while reasonable minds can differ on this point too, it seems to me that in an insanity defense normally, you as defense counsel would want the jury to see your client and evaluate him, if there is any merit to the insanity defense at all.

Unknown Speaker : Mr. Denney I suppose the issue is who should make the decision, the defendant, his lawyer or the judge and suppose the judge concludes after hearing all the facts you have described that the defendant would really be much better off if he took the witness stand in order to explain all the things, he can make him it, can he?

Mr. Thomas H. Denney: No, of course he cannot make --

Unknown Speaker : In this area, it is up to the defendant to decide for himself whether to take the stand?

Mr. Thomas H. Denney: Whether or not to take the stand sir?

Unknown Speaker : Now, why should he not also decide from himself whether he wants his instruction or not?

He may be wrong, he may be wrong about not getting on the stand too?

Mr. Thomas H. Denney: Yes, that is the argument that --

Unknown Speaker : That is the question in this case?

Justice William H. Rehnquist: There is no doubt is there that the judge is charged was a correct statement of law?

Mr. Thomas H. Denney: Oh! Absolutely not.

Justice William H. Rehnquist: And there is no doubt that in Oregon the judges have to be right in the obligation to charge juries as to the law governing their deliberations in a particular case?

Mr. Thomas H. Denney: Yes, those of the two countervailing factors I suppose on who actually makes the choice in this.

Unknown Speaker : The question is what the law is in this case?

Must the judge or must he not give the instruction over the role of the defendant?

Mr. Thomas H. Denney: Yes, that is the question before this Court.

We talked about two of the factors that are involved in making that decision.

Another is the question I think at least, and these are the points that I have made in the brief, if this is as Mr. Justice Powell said a neutral instruction and we submit that it is, where is the possibility of the instruction having been given for reasons determined by the trial judge, where is the possibility of harm.

One answer of this and I set it up as straw man in my argument of course, is to say that you have to assume that telling a jury not to do something means that they may just go ahead and do it and we submit that that is an argument that should not be spelled by this Court because it is not a good idea and it is contrary I think to our basic notion of what a jury system is all about to assume that the jurors are incapable of following such instruction.

Justice Thurgood Marshall: Mr. Attorney General, how is the state hurt by a rule which says that the defendant does want this instruction, he should not have it, how is the state injured?

Mr. Thomas H. Denney: The state itself as prosecutor is not injured and I do not believe --

Justice Thurgood Marshall: That is right and you do not think due process or the people or anything, do you?

Mr. Thomas H. Denney: I think --

Chief Justice Warren E. Burger: You do not think justice is injured, do you?

Mr. Thomas H. Denney: The only point I would make on that is that I think that it should remain as a matter of general policy and certainly as a matter of constitutional law, a matter that is the province of the judge rather than of the defense counsel.

I would just prefer to see and it is simply and perhaps more a matter of philosophical views about which we may differ to see the matter.

Justice Thurgood Marshall: It pretty well gets down to that?

Mr. Thomas H. Denney: Yes, it does.

I am --

Justice Thurgood Marshall: What he did was his constitutional right though.

May be you should err on one side, if you are going to err?

Mr. Thomas H. Denney: That is a possibility too.

It is just that we are of the position for the reasons that I am arguing here and for the reasons that I have stated in the brief that there is no possibility of erring in this matter.

Mr. Justice Stevens spoke about the matter being knowing whether or not the instruction would be given or not would in some way directly or indirectly, well, more directly than indirectly, would be a matter of compulsion and would be a matter which would influence one way or the other the decision of the defendant to take the stand.

There are two answers to that neither of which is --

one of which I know was not very good that is it may not be known in advance whether or not the judge in any particular case is going to give that.

Presumably of course the defendant could inquire and would get an answer from the judge, but there may be judges that are cantankerous enough not to answer a question along those lines.

Justice Thurgood Marshall: It would not be binding on them, would it?

Mr. Thomas H. Denney: No.

That is true too.

The other thing is it occurred to me as I thought about that though is I think that analysis might present some problems in the future because that could be said of almost any instruction which the trial court might give.

That might again have some influence on the defendant.

I appreciate the fact that this particular instruction here goes directly --

To more directly than most to the question of whether or not what is to be said about whether the defendant took --

Takes the stand or not.

It may go directly to the, more directly to the issue of compulsion than some others, but to some extent I should think they all would.

Unknown Speaker : You have been asked what the state’s interest is?

Does it not -- is it not primary interest of a fair trial?

Mr. Thomas H. Denney: I say yes.

I --

Unknown Speaker : Do you have any question about that?

Mr. Thomas H. Denney: I think not, that is basically my position and --

Unknown Speaker : And does not the judge have responsibility for instructing a jury as to what the law of the state is?

Mr. Thomas H. Denney: As I think I answered Mr. Justice Marshall not as articulately and not as directly as that put it.

Yes, I think that the power to do that and the right to do that remains with the judge and should remain with the judge in preference to defense counsel.

Unknown Speaker : Suppose the defendant questioned the judge to give no instructions whatever on his behalf?

Mr. Thomas H. Denney: Well, I wonder about that.

Unknown Speaker : Do you think the judge would be justified in sending a case to the jury with no instructions as to state law?

Mr. Thomas H. Denney: Well, I most certainly do not.

Mr. Marlow would have --

Might have another view of it though I rather doubt it when you state the matter as bluntly as that.

Justice Thurgood Marshall: Also did he not pleaded guilty, the judge would not have anything to do, but put him in jail, would it not (Voice Overlap), if he wanted to?

Mr. Thomas H. Denney: The judge might not accept the guilty plea for that matter.

As a matter of fact this depends --

Justice Thurgood Marshall: You mean the judge would not accept a guilty plea to the maximum crime?

Mr. Thomas H. Denney: Your Honor, is it after the jury, the first 12 jurors were chosen in this case and before --

Justice Thurgood Marshall: Now I was not talking about jurors being chosen--

Mr. Thomas H. Denney: Well, the defendant offered to plea guilty.

The defendant stated he wanted to plead guilty to this charge.

Justice Thurgood Marshall: No, it was not mandatory.

Mr. Thomas H. Denney: No, sir it was to escape in the second degree.

Justice Thurgood Marshall: Well, it is what he was charged with?

Mr. Thomas H. Denney: Which is worry he was charged with.

Justice Thurgood Marshall: And he said he was not insane?

Mr. Thomas H. Denney: The judge refused to accept the instruction because of the guilty plea because the insanity defense had been raised in this case.

Justice Thurgood Marshall: Yes.

Mr. Thomas H. Denney: Well, I am not sure what we are --

What are differences here sir.

Justice Thurgood Marshall: Now, my point was you say that that before the justice, regardless of what the defendant says the judge can still do so.

I am saying the general rule is that if a man was to plea guilty for the maximum of offense, it would be accepted?

Mr. Thomas H. Denney: It generally will be yes, sir.

Justice Thurgood Marshall: Yes it.

Mr. Thomas H. Denney: Very well.

Unless there are any more questions, I really have nothing further that oral argument will -- to add.

Chief Justice Warren E. Burger: Well, do you have anything further?

Rebuttal of Phillip M. Margolin

Mr. Phillip M. Margolin: Yes, two short things Your Honor.

First of all I think that this Court can confine itself to the very narrow issue of whether in this particular case if there is a -- if you have a petitioner or defendant who gets advice concerning the exercise of the Fifth Amendment right whether in this type of situation a judge can give instructions over objection.

I do not think you have to go ahead and ask yourselves how this would affect other situations where the righteous thing exercised is not a constitutional right.

So I think different considerations might arise.

I think the Court could confine itself to that very narrow issue.

Secondly, I do not think the reason why a defendant in a particular case does not take the stand or whether the trial strategy is correct or incorrect is relevant.

I think the interesting question is raised here as how far is a judge permitted to go in deciding how a defense will be run.

Justice William H. Rehnquist: What if a judge in precisely the situation that as Circuit Court judge was here and presented with your client’s attorney’s objection to giving his instruction and said I know that there will be a claim of constitutional violation if I do not give the instruction, if I do give the instruction, the claim that you are now making here, I fear if I do not give it up your plan of incompetent assistance of counsel?

Mr. Phillip M. Margolin: Well, I think you waive that type of a defense or probably that type of a opposing claim or appeal if there is a specific request, you may not to give the instruction.

I mean, if we are dealing with a waiver situation in those circumstances so I do not think that that is the real genuine problem that was.

Unknown Speaker : Well, certainly that would be in the hypothetical case put to you earlier in the argument by my brother Rehnquist.

What if a defendant’s lawyer affirmatively requested the trial judge not to charge, not to instruct the jury on the presumption of innocence and the duty of the prosecution to prove guilty on a reasonable doubt and you have already said that please do not instruct the jury on that subject and the judge said, “Okay you are the lawyer, you are the boss.”

So he did not, that would be, would that not be -- would that be a valid conviction?

Mr. Phillip M. Margolin: Okay, I think what happened is that either imposed conviction or an appeal the question would be -- what the question would be was the decision not to have those instructions given a knowing and voluntary decision that was made by the defendant.

Unknown Speaker : Yes, let us assume that the lawyer was a member of the bar and he was not a phony and he was validly representing this client and he thought for some strange reason that it would hurt his client to have that instruction given?

Mr. Phillip M. Margolin: I think that if the defendant knew what he was doing, I mean, I certainly would not advise it, but if he knew what he was doing and he voluntarily and intelligently made the decision to not have those instructions given.

Unknown Speaker : (Voice Overlap) difference between that case as you pointed just a strange reason could motivate that request, but the request involved here as a substantial number of State Supreme Court think its a very sensible request?

Mr. Phillip M. Margolin: Well--

Unknown Speaker : It is hard to say that that is malpractice, to give the examples Mr. Justice Stewart gives it is only a strange request?

Unless away from malpractice, suppose that he were representing himself as this Court did its charitable approaches who said they have a right to do and he made this request?

Mr. Phillip M. Margolin: Okay, again I would refer to keep this on the very narrow issue of the situation where there is assistance of counsel because I think you can keep this in this area without going into other situations like what happens with different types of instructions or what happens with a person is representing himself.

Unknown Speaker : But you are going get away from any malpractice claim or any incompetency claim?

Mr. Phillip M. Margolin: In Feretta case the Court said that a person has a right to represent himself and if he does that and he forgoes the assistance of counsel and then he makes that type of a decision, he may just be in a situation where he has done himself a lot of injury, but if he is doing it voluntarily and knowingly and he understands the consequences he just, that might be the situation.

But again I do not think that, that type of situation should effect the court’s decision here because here it is a defendant who is getting advice from an attorney who has supposedly have some training and some experience in these matters and it is being made through discussion and then is being presented to the Court as a particular way that the defendant wants to run his case.

So I do not think it is running -- I do not think the decision to this case would affect that type of situation.

There is nothing further.

Chief Justice Warren E. Burger: Thank you gentleman,

The case is submitted.