Transcript

IN THE SUPREME COURT OF THE UNITED STATES

TERRANCE HOLBROOK, SUPERINTENDENT, MASSACHUSETTS CORRECTIONAL INSTITUTION, NORFOLK, MASSACHUSETTS, ET AL., Petitioners, v. CHARLES FLYNN

No. 84-1606

January 14, 1986

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 2:02 o'clock p.m.

APPEARANCES:

THOMAS MORE DICKINSON, ESQ., Special Assistant Attorney General of Rhode Island, Providence, Rhode Island; on behalf of the Petitioners.

GEORGE KANNAR, ESQ., New York, New York; on behalf of Respondent.

PROCEEDINGS

CHIEF JUSTICE BURGER: Mr. Dickinson, I think you may proceed whenever you are ready.

ORAL ARGUMENT OF THOMAS MORE DICKINSON, ESQ., ON BEHALF OF THE PETITIONERS

MR. DICKINSON: Thank you, Mr. Chief Justice, and may it please the Court:

This is the case of Holbrook v. Moran -- Holbrook and Moran v. Flynn which is here on a writ of certiorari to review a decision of the United States Court of Appeals for the First Circuit, which court granted a writ habeas corpus to Charles Flynn.

The question before the Court today is whether the First Circuit committed error in concluding that the presence of armed Rhode Island State Troopers in the courtroom during Flynn's trial deprived Flynn of a fair trial by interfering with his presumption of innocence.

QUESTION: How many defendants were there being tried at that time?

MR. DICKINSON: Mr. Chief Justice, there were six defendants on trial at the time this case went to trial in Providence, Rhode Island. Three of the defendants -- all defendants were on trial together. Three of them were acquitted. Flynn and two co-defendants were convicted.

In my argument today --

QUESTION: Are you going to tell us exactly where the officers were in relation to the defendants in the courtroom?

MR. DICKINSON: Your Honor, the record --

QUESTION: Were they behind the chairs in which defendants were sitting or where?

MR. DICKINSON: Your Honor, it would appear that the record does not specifically reflect where the officers were at all points in time. It is my understanding, however, Your Honor, that the state troopers were located in the front row of the spectator section of the courtroom.

QUESTION: As, for example, we have a counsel side here and a -- beyond it, a spectator section.

MR. DICKINSON: That is correct, Your Honor.

QUESTION: Is that the way it is?

MR. DICKINSON: And if I were to use this courtroom as an illustration, I think it would be a perfect illustration. The defendants would be seated in the back row of the counsel section with their attorneys --

QUESTION: Yes.

MR. DICKINSON: And the troopers would be seated in the front row of the spectator section behind, if you will, the bar, what we refer to in Rhode Island as the bar.

QUESTION: But directly behind that, behind the defendants, or does the record show?

MR. DICKINSON: The record does not specifically address where they were.

QUESTION: It could be they were on the other side of the front row?

MR. DICKINSON: It's unquestioned, Your Honor, that they were seated in the front row of the spectator section.

QUESTION: But they might have been on the other side of the room from the defendants.

MR. DICKINSON: They might have been. The record would not reflect such a finding. It would appear --

QUESTION: It doesn't reflect where they were, is that it?

MR. DICKINSON: It merely reflects that they were outside the bar.

QUESTION: Yes.

MR. DICKINSON: And the defendants were inside the bar.

QUESTION; All right.

MR. DICKINSON: I will be addressing two questions in my argument today. First I will address the manner in which the trial justice conducted the hearing that concluded that the presence of the troopers was permissible, and then I will address the broader question of whether Flynn in this case was denied a fair trial.

I would briefly like to review some of the important facts. This was a four month long trial that occurred in the summer of 1976 in Providence, Rhode Island. The case involved a major robbery, perhaps one of the most celebrated trials ever in Rhode Island history, the robbery of the Bonded Vault warehouse in Providence, Rhode Island. In addition to armed robbery charges, there were kidnapping charges and weapons charges against, lodged against the defendants.

There were actually eight co-defendants in this case. Two of them, however, were not tried with Flynn and the others because they were at large at the time of the trial. Those were defendants Macaskill and Lanou. Five other defendants were tried with Flynn, as I pointed out earlier, so six defendants were tried together. Three were convicted and three were acquitted at this trial. All of the defendants at this trial were held without bail and therefore were, under Rhode Island law, in the custody of the Rhode Island State Marshal.

QUESTION: Were they held with -- when you use the term were held without bail, do you mean they were unable to raise money bail or that the trial court would not allow them to be free even if they had raised money bail?

MR. DICKINSON: It was that they, they were -- the trial court would not allow them to be free, and perhaps this is -- this may be an esoteric point of Rhode Island law. However, these defendants were specifically determined prior to trial not to be entitled to bail. So it wasn't a situation where they were indigent defendants who couldn't afford to make bail, as perhaps this Court referred to in the Estelle v. Williams case where you might have an equal protection concern where the -- because the only reason the defendants is -- defendant is in custody --

QUESTION: Well, bail was denied, that's all.

MR. DICKINSON: Bail was denied, that's correct, Your Honor, prior to trial.

QUESTION: Did each have his own counsel?

MR. DICKINSON: My recollection is that Flynn and another defendant shared counsel. I'm not sure which other defendant that was, Your Honor. I believe it was one of the defendants who was acquitted.

QUESTION: So it would suggest that there were at least four defense counsel?

MR. DICKINSON: Oh, there were at least four defense counsel, that's true, Your Honor.

QUESTION: For the trial.

MR. DICKINSON: And there were also two prosecutors, I believe, in the courtroom at all times.

Two participants in the robbery who were never charged as defendants, Messrs. Dussault and Danese, also participated in the trial by testifying against Flynn and his co-defendants. They had turned State's evidence and were within the protection of Rhode Island authorities, so that as this trial began, it became clear that this was an unusual circumstances -- unusual circumstance, first of all, because of the large number of defendants. It became clear to the individuals charged with maintaining custody of these defendants that with the force of marshals that they had at their disposal, they could not maintain the proper ratio of security personnel to defendants in the courtroom.

The state marshals, if you will, were numerically incapable of serving at this trial. There were, at the time of this trial, there were eleven marshals in Rhode Island, eleven available in Providence County, I should say, to service this trial. The head of the Marshals Service, Mr. Melucci, testified at a pretrial hearing, and his testimony was that at all times during the course of a criminal trial, when defendants who are being held without bail are on trial, at all times the marshals attempt to maintain a ratio of two security personnel to one defendant.

Now, it would appear --

QUESTION: Mr. Dickinson, there was a state appellate court review of the trial court's rulings, in effect, wasn't there?

MR. DICKINSON: I suppose you might say, Your Honor, that there were two reviews.

QUESTION: Was there -- yes, well, there was. You acknowledge that.

MR. DICKINSON: That's true, that's true.

QUESTION: Now, did the state appellate court ever think that the trial judge had considered that there was anything about these defendants or this trial that required extra security?

MR. DICKINSON: I would submit, Your Honor, that there's nothing -- the state appellate court did not, did not cite anything specifically referenced to these defendants with regard to, if you will, heightened security.

QUESTION: It seemed to focus on the manpower shortages and the obligations of the collective bargaining agreement.

MR. DICKINSON: Well, it certainly focused on those aspects, Your Honor, and perhaps the reason for that is that what the -- the purpose of the security force was not enhanced security at all but was to provide normal security, and the only way that normal security could be provided was to enhance it with some outside service.

QUESTION: Now, is that clear in the record, that if there had been enough nonuniformed people available, would they have been in the courtroom and seated in roughly the same place?

MR. DICKINSON: Well, I don't think the record specifically speaks to nonuniformed personnel for the reason that the issue that was presented to the trial judge was state troopers.

QUESTION: I know, I know.

MR. DICKINSON: As opposed to state marshals, and of course, state marshals are uniformed.

QUESTION: I know, but you just said, you just said that this wasn't enhanced security, this was just normal security.

MR. DICKINSON: Normal security with unusual personnel.

QUESTION: Except for the fact that they were uniformed and armed.

MR. DICKINSON: And armed. And uniformed in and of itself, I would suggest, is not unusual at all because the state marshals are quite clearly uniformed.

QUESTION: Well, are you asking us to believe that in this particular trial there always would have been security people seated in the courtroom.

MR. DICKINSON: That is correct, Your Honor.

QUESTION: In a case like this.

MR. DICKINSON: In any case, Your Honor, there would be a certain --

QUESTION: Would there have been four or --

MR. DICKINSON: There would have -- the security forces would have maintained, attempted to maintain a two to one ratio, so in a case where you had one defendant, there would be two.

QUESTION: Was that the general rule?

MR. DICKINSON: The general goal, Your Honor, was a two to one ratio. It was appear -- it would appear that what was maintained throughout this case was a better than one to one ratio, and that that was a -- the minimal was above one to one, and going to one to one --

QUESTION: Well, Mr. Dickinson, had there been a dozen marshals, uniformed differently, I gather, from the state troopers, would they also have been armed?

QUESTION: No.

MR. DICKINSON: No, they would not have been armed. Officers -- the marshals, officers who actually have physical custody and hand-on contact with the defendants are not armed, which brings me to another problem --

QUESTION: Well, may I just ask while I have you interrupted --

MR. DICKINSON: Yes, Your Honor.

QUESTION: Are the -- were the arms holstered at the state troopers' sides, or could they be seen, their weapons?

MR. DICKINSON: I would say they could be seen. There's no question that they could be seen.

QUESTION: They could be.

MR. DICKINSON: They were on holsters, Your Honor --

QUESTION: Yes.

MR. DICKINSON: And they were not concealed under jackets.

QUESTION: Mr. Dickinson, do you take the position that the presence of armed security guards in the courtroom, no matter how many there might have been, simply doesn't impair or burden the presumption of innocence, or do you take the position that there was a special need in this case for the security measures that were in fact taken?

I'm not clear what your position is.

MR. DICKINSON: Well, I think our position, Your Honor, is in some ways both. First of all, we contend that in this case there was unquestionably a need for the presence of a security force to maintain custody of the defendants. By statute, individuals who are in custody --

QUESTION: Except that there was no such finding by the trial court or the state appellate court.

MR. DICKINSON: Well, I would suggest, Your Honor, that the trial judge specifically found that it was -- that the committed squad itself, the squad of state marshals, was inadequate and that the only supplement that was available to the committing squad was a force of state troopers, and that to that extent, from that logical conclusion, these state troopers were necessary in the courtroom to maintain custody --

QUESTION: So you want us to assume that there was a finding that there was a need for special security here, is that the position?

MR. DICKINSON: The special security being that there was a large number of defendants, six, and that all of them were held without bail, and that the available security, the normal, customary state marshals, were simply inadequate to both operate at this trial and permit the system of justice in Rhode Island to go on --

QUESTION: Well, what was the need for arms?

Why were they armed?

MR. DICKINSON: The trial judge didn't make a specific finding as to the need for arms, and it was never really specifically addressed that there was a need for the troopers to be armed in this courtroom.

QUESTION: Take, take this hypothetical.

Juror A, who has been to three trials and in every trial the people there with the defendants were unarmed, and then he's at this one where they are armed, could he draw a conclusion from that?

MR. DICKINSON: I suppose that a hypothetical juror might draw such a conclusion, and to that end, Justice Giannini in this case conducted an extensive voir dire of the jurors who were available for being empaneled in this trial.

QUESTION: Did he ask them would they be influenced by a gun?

MR. DICKINSON: During -- the voir dire itself was never transcribed, Your Honor.

QUESTION: Well, I --

MR. DICKINSON: However, it's clear from Justice Giannini's summarization of what occurred at the voir dire that none of the jurors who were seated in the jury box at the trial drew any kind of inference at all from the presence of armed troopers.

QUESTION: They acquitted three of the -- they acquitted three of the defendants, so they, apparently they must have had a selective feeling if there was any feeling at all.

MR. DICKINSON: Well, in fact, Your Honor, that's why I don't think it's necessary for us today to focus too much on the hypothetical juror because we have the voir dire in this case i which the jurors clearly expressed no inference at all from the presence of armed troopers, and we have what this jury actually did in the end, which was acquit three of the defendants.

QUESTION: About how many reasons can you conceive that a juror would acquit one man and hold another man guilty, about how many different reasons would you --

MR. DICKINSON: Well, Your Honor, I think there are infinite possibilities, of course --

QUESTION: Close to a million, wouldn't it be?

MR. DICKINSON: Of course, and as Justice Giannini concluded in the motion for a new trial aspect of this case, you can never really draw any inferences from what the jury does in many cases because the burden of proof beyond a reasonable doubt is so great that one shifting set of circumstances related to one defendant may fall below that burden, and in this case, apparently that is what happened with the jurors. But the point is that when they focused upon the three defendants that they acquitted in their deliberations, they certainly weren't influenced by the presence of the troopers. They acquitted those defendants.

So --

QUESTION: Mr. Dickinson.

MR. DICKINSON: Yes, Your Honor.

QUESTION: I want to find out, if I can, if it is in the record, how the system of furnishing security at Rhode Island trials works.

Is it ordinarily the judge who decides what sort of security particular defendants should be furnished, or is it the marshals service?

MR. DICKINSON: I would say that the ordinary practice, Your Honor, is that the marshals -- if a defendant is not on bail -- I'm sorry, if a defendant is on bail, we can dismiss that category of cases. The marshals have nothing to do with that defendant because he is not in custody; they are not charged with maintaining his custody. So in that circumstance, all you would have is the ordinary courtroom sheriff who handles papers, and certainly is unarmed.

In a case where the defendant is on bail -- I'm sorry, is held without bail, the Rhode Island statute involving the Department of Corrections very clearly requires the Department of Corrections to maintain custody of that defendant even inside the courtroom.

QUESTION: So that's a -- the custody decision, how it shall be maintained, is initially made by, not by the Court, I take it, but by the Department of Corrections.

MR. DICKINSON: And essentially, Your Honor, it's not really a judicial function at the beginning, it's an executive function. The Department of Corrections is an arm of the executive, and these defendants would be in their custody.

QUESTION: Mr. Dickinson.

MR. DICKINSON: Yes, Your Honor.

QUESTION: In connection with what you and Justice Rehnquist are discussing, the District Court -- and I am looking at page B-12 of the Petition for Certiorari --

MR. DICKINSON: Yes, Your Honor.

QUESTION: The first full paragraph goes on to say "To repeat the characterization employed by the Rhode Island Supreme Court, the circumstances of this trial were veritably 'extraordinary.'" "And, the need for, end extent of, security measures are generally held to be within the sound discretion of the trial court."

MR. DICKINSON: That's correct, Your Honor.

QUESTION: I wonder if that doesn't answer to some extent Justice Rehnquist's question.

MR. DICKINSON: Well, that would -- that would certainly be true in a case where the defendant raises the question and asks the trial judge to make a decision. As I understood Justice Rehnquist's question, it was a first line who's in charge of security, and the first line is unquestionably the executive authorities. Then --

QUESTION: In this case, the District Court so found.

Has that finding been found clearly erroneous?

MR. DICKINSON: Found that it was the decision of the -- the responsibility of the judge, Your Honor?

QUESTION: Yes.

MR. DICKINSON: No, that hasn't been found erroneous.

QUESTION: All right

And that same judge went on to conclude that the necessity for heightened security for this trial was manifest, the last line on that page.

MR. DICKINSON: Yes. And --

QUESTION: The judge found there was a heightened necessity for security. That hasn't been found to be -- held to be clearly erroneous either.

MR. DICKINSON: Well, I think the First Circuit did dispute that conclusion by District Judge Selya.

QUESTION: Did it find it clearly erroneous?

MR. DICKINSON: I don't think that the Court specifically used the terms "clearly erroneous," Your Honor. What the Court did was it concluded that the findings within the Rhode Island State Court system had involved the presence of the troopers and their necessity to complement the state marshals and had not focused specifically on the defendants and their characteristics. And the First Circuit concluded from that that that failure was constitutionally erroneous, that the focus of the state trial judge should have been on the defendants and their particular characteristics, not on the need to maintain an ordinary ratio of security personnel to defendants.

But I would point out that even the absence of the specific findings by the trial judge in state superior court in this case focusing on the specific defendants and their characteristics, even the absence of those findings, I would suggest, is not fatal to the conclusion that the trial judge reached, and the reason for that is that there are specific facts that are clear from this record with regard to these defendants, factors which the First Circuit suggested from the American Bar Association Guidelines, that ought to be considered by a trial judge in deciding on security issues.

One factor is that this particular defendant, Mr. Flynn, had a prior record of escape, and that is clear from the record of this trial. Another factor that the American Bar Association standards suggest is that accomplices of the individuals on trial were at large during this trial, which in and of itself, according to the American Bar Association comments, creates a possibility of some need for security.

Also relevant factors that I would submit were well known to the trial judge are the fact that two of the state's witnesses were in the protection program, so that the issues before the trial judge in considering whether or not to permit the troopers to remain were very clearly weighed in favor of permitting them to remain, and in fact, he then conducted an extensive voir dire, a voir dire which concluded with factual findings on his part --

QUESTION: I gather that was after the objection was made to the presence of the troopers?

MR. DICKINSON: That is correct, Your Honor, that is correct, Your Honor, and I might point out that he promised the defendants that should they wish to exclude any of these jurors because of anything they said, that he would certainly exclude them for cause, and it is very clear that at the close of the jury selection, the defendants were satisfied with the jury that they had.

QUESTION: I don't know why they whether we've breached it, but is the objection against the uniform or the gun?

MR. DICKINSON: Well, I think that --

QUESTION: Or both?

MR. DICKINSON: I suppose that we could say that it's both, Your Honor, and if it's against the uniform, I think that Flynn has a real problem because he was apparently willing to concede throughout the trial that the state marshals would be fine, the normal state marshals, and they wear uniforms, and their uniforms, I would submit, are no more obtrusive or obnoxious, if you will, to a defendant's presumption of innocence, than the uniform worn by the Rhode Island State Troopers.

So I suppose that he may wish to focus more narrowly on the weapons.

In any event, it's our position that whatever this Court concludes with regards to the proceedings that Justice Giannini conducted, we would argue that the trial judge's proceedings were proper, and that he properly concluded that this type of security force was necessary, that he engaged in the proper balance under Estelle v. Williams, and concluded that the jury would not be influenced by this.

Whatever this Court thinks of Justice Giannini's conclusion on that aspect, we would, we would certainly argue that this case is still not a ripe case or a proper case for a grant of a write of habeas corpus. First of all, the issue before the Court is really whether or not the defendant was deprived of a fair trial, and in making that determination, a reviewing court has to consider both the evidence and other circumstances at the trial in order to determine whether or not the trial was constitutionally unfair. And I would simply point to several aspects of this trial that weigh heavily in favor of our claim that the defendant was not deprived of a fair trial.

There were testimony by accomplices who participated in the preparation for this crime which the accomplices said that the meetings occurred at Flynn's particular house. There was an identification both by the accomplices and by an impartial witness whose identification was deemed to be proper and admissible by every judge who has reviewed this case, including the First Circuit Court of Appeals. There was evidence that Flynn and other of his co-defendants went to Las Vegas to track down one of the witnesses who turned state's evidence, witness Dussault, that they went there in an attempt to persuade him that he should remain part of the team. There was other physical evidence. There was --

QUESTION: Is it clear that the same evidence wasn't offered against the defendants who were acquitted?

MR. DICKINSON: Certainly that evidence, Your Honor, particularly with regard to Dussault was not offered against the defendants who were acquitted.

QUESTION: And how about the identification evidence?

MR. DICKINSON: No, the --

QUESTION: Was there identification evidence against the two who were acquitted?

MR. DICKINSON: The best identification evidence, the impartial witness identification evidence, was against Flynn, Your Honor, and I would argue that --

QUESTION: Was there any identification evidence against the defendants who were acquitted?

MR. DICKINSON: Only in my recollection of the record from the accomplice witnesses who were certainly more familiar --

QUESTION: So should we disregard the accomplish witnesses' testimonies throughout in order to decide whether the evidence is clearly sufficient as to those --

MR. DICKINSON: Well, I think that, I would say, Your Honor, is a jury question, and the jury seems to have accepted part of their testimony and apparently rejected part of their testimony.

QUESTION: But we should read it and accept it all, is that it?

MR. DICKINSON: Well, I think we should certainly accept what the jury accepted, Your Honor, which is the evidence against Flynn and the three defendants that it convicted. I would also point out there was more physical evidence against Flynn. There was a briefcase that Flynn had been seen with at the robbery scene that turned up at Flynn's house subsequent to the robbery. Flynn himself on the evening of the robbery was observed by witnesses to be flashing large amounts of cash.

QUESTION: May I ask this? You are saying they ought to go back for, in effect, a new hearing on whether or not there was a fair trial. Should it primarily focus on the evidence of guilt, or should there be more inquiry into the kind of courtroom procedures followed with regard to security?

MR. DICKINSON: Well --

QUESTION: For example, we don't yet know just how many people were in the courtroom, do we?

MR. DICKINSON: That's true, Your Honor. We don't specifically know --

QUESTION: I notice the district judge said that the complaint was that the use of armed and uniformed state troopers to augment, augment the other people that were there.

MR. DICKINSON: There were marshals in the courtroom --

QUESTION: In addition to the four uniformed people.

MR. DICKINSON: -- but the troopers were supplementing the marshals.

QUESTION: But we don't know how many altogether, do we?

MR. DICKINSON: But I would suggest that the record itself in this case doesn't reflect because the defendants never, on a day to day basis, didn't put on the record how many troopers were present and how many marshals and where exactly they were, but I don't think the defendants would contend that there were more than four troopers present in the courtroom. I don't --

QUESTION: But there were more than four security personnel.

MR. DICKINSON: Oh, there certainly were. There were -- there were marshals there, perhaps as many as four in addition to the troopers.

But the reason why we asked for a remand, Your Honor, is that as we read the habeas jurisprudence of this Court, a Court of Appeals on a fair trial issue can't grant a new trial without considering whether or not the defendant was denied a fair trial.

QUESTION: Your first argument is you want it reversed, isn't it?

QUESTION: You want it reversed.

MR. DICKINSON: Well, we certainly want it reversed, but I'm answering Justice Stevens' question with regard --

QUESTION: Yes, all right, yes.

MR. DICKINSON: -- to a subsequent hearing.

And based upon the totality of the circumstances that I have cited to Your Honors today, I think clearly the First Circuit's decision ought to be reversed. But --

QUESTION: Without the necessity for a new hearing?

MR. DICKINSON: Absolutely without the necessity for a new hearing, but short of that, Your Honor --

QUESTION: Yes, yes, all right.

MR. DICKINSON: Were this Court to conclude that the First Circuit had some points with regard to the manner in which the trial judge had conducted the pretrial hearing, it is certainly Flynn's burden a a habeas petitioner to put before the federal court facts that will support his claim for a new trial, and it is our view that he failed to do that by failing to put in any evidence in the lower court.

But based upon all these factors, it's the state's position that Justice Giannini reasonably concluded in the superior court level that the troopers were necessary to maintain proper order and custody of the defendants, and that even if he was wrong in that, even if this court were to conclude he was wrong, that the defendant was not denied his constitutional right to a fair trial, there was strong evidence against this defendant, strong evidence that the jury properly gave credence to the presumption of innocence because it acquitted three co-defendants, and strong evidence and a factual finding by Justice Giannini that the jurors had expressed no bias or prejudice relative to the presence of the troopers, and for this reason, the state submits that the judgment of the Court of Appeals should be reversed.

And unless there are any questions, I will reserve the balance of my time.

Thank you.

CHIEF JUSTICE BURGER: Mr. Kannar?

ORAL ARGUMENT OF GEORGE KANNAR, ESQ., ON BEHALF OF THE RESPONDENT

MR. KANNAR: Mr. Chief Justice, and may it please the Court:

This case concerns a trial in which six defendants, over the most strenuous possible objection, were forced to appear before the jury for more than two months guarded every day by armed and uniformed state troopers with impressive, military-style uniforms, wearing holsters at their hip.

Now, wherever the troopers may have been within the courtroom, and whether we are concerned with the style of the uniform, the existence of the side arm on anything else is irrelevant in this case at this point given what the record makes clear, that this show of force was, A, without precedent in modern history of the state, for the head of the committing squad himself had testified he had never seen anything like it before, and secondly, more importantly for present purposes, a show of force that was labeled extraordinary, a departure, extreme by all the local reviewing courts.

Moreover, all of the courts reviewing --

QUESTION: Well, what were they charged with again?

MR. KANNAR: I beg your pardon?

QUESTION: What were they charged with?

MR. KANNAR: Well, they were charged with charges arising from an armed robbery of a Bonded Vault company.

QUESTION: Kidnapping?

MR. KANNAR: Well, the kidnapping, yes, there were kidnapping charges, and what they concerned was asking the people or forcing the people who worked in the vault to move into the men's room during the course of the crime.

All of the courts reviewing this question have agreed that the courtroom security measures here were presumptively prejudicial, that they raised a serious risk of --

QUESTION: Do you know, I gathered that the general rule of the marshals' service was that it's two security persons for each defendant?

MR. KANNAR: Well, it's a little bit unclear. The way that is phrased --

QUESTION: Well, is it possible that was the rule?

MR. KANNAR: Sure.

QUESTION: Well, it may be --

MR. KANNAR: If I may elaborate --

QUESTION: It may be that if, it may be that wholly aside, if the troopers hadn't been needed to augment, it may be that there would have been 12 security persons in the room.

MR. KANNAR: Well, first of all, it's quite clear from the record, I think, that the defendants did not waive the right to contest that one area.

QUESTION: I understand that.

MR. KANNAR: Secondly, if I may, Mr. Dickinson just conceded in the course of his oral argument that the only reason that there were armed guards in the courtroom as opposed to unarmed guards was this very fact of a shortage of personnel in the committing squad.

QUESTION: Well I understand that, but how about my question? If they hadn't been needed to augment, if there had been enough unarmed marshals available, there might have been twelve in the courtroom.

MR. KANNAR: That's right.

QUESTION: Uniformed.

QUESTION: And there had been no complaint?

QUESTION: Uniformed.

MR. KANNAR: Well, it's unclear from the record --

QUESTION: And you wouldn't have made a complaint.

MR. KANNAR: -- of what their uniform consisted, Your Honor.

I beg your pardon?

QUESTION: And you wouldn't have complained?

MR. KANNAR: No, I said that the defendants clearly reserved the right to address that question if it had come up.

What the defendants consistently argued for was a sort of compromise. They said we can have the state troopers there, just please put them in plain clothes and conceal the arms so that we'll know they are there, if that's what the issue is, but the jury won't.

QUESTION: So you would have complained if there had been 12 uniformed but unarmed security persons in the room.

MR. KANNAR: I think depending upon the deployment of the people, it is conceivable. We are not contesting, however, it is not our claim today that the federal courts should be putting, making decisions concerning what is the appropriate level of security in the ordinary course of affairs in the state courts. What we are saying is in a case where the state supreme court has explicitly held that this is a highly unusual situation, a departure from ordinary proceedings where the State Supreme Court in taking -- after accepting a discretionary interlocutory review that it obviously had no obligation to hear in the first place, cites to the American Bar Association standard as a source of guidance for the trial court judge --

QUESTION: Is the evidence of the trial judge's denying bail part of this record?

MR. KANNAR: Well, what happened on the bail proceeding, actually --

QUESTION: We know that it was denied.

MR. KANNAR: Right.

QUESTION: But are the reasons given?

MR. KANNAR: Well, not on this record. The reason for that is that there was no actual consideration of bail within this record. What happened was the defendants, as one of their less restrictive alternatives, as a device for seeking to do away with the reasons that have been articulated for having the armed and uniformed state police, asked the trial judge if he would please hear an application for bail. What he held was not that they were not entitled to bail. What he held was that he was prohibited by Rhode Island law from reconsidering another judge's denial of the application for bail. Further, all four --

QUESTION: Excuse me --

MR. KANNAR: All three of the convicted defendants were in fact immediately released on post-trial bail as soon as the sentencing was completed. So it's not a situation where that there was an examination of the proclivities and tendencies of these individuals, as has been suggested --

QUESTION: Why did the first judge --

QUESTION: Well, someone thought they weren't good candidates for bail at the outset.

MR. KANNAR: Well, it's clear the first judge who considered it thought so. Of course, the first judge who considered it wasn't reviewing it in the context of a possible denial or infringement of their fair trial rights.

Secondly, they were all admitted --

QUESTION: Yes, but you suggest that their denial, that the reasons for denying bail have no bearing on the need for the presence of guards in the courtroom?

MR. KANNAR: I just don't think it was foreseeable by the judge who considered their initial bail application --

QUESTION: Well, in this day of almost everyone being free on bail, that was a rather unique thing, wasn't it?

MR. KANNAR: Well, it wasn't unique particularly under Rhode Island practice, although I'm not a Rhode Island lawyer. What seems to be, what I would argue is the judge who made the initial decision, who is a Rhode Island judge just like the three successive Rhode Island judges who released all the defendants on bail following conviction after looking at their circumstances, that the first judge didn't foresee that his decision would have these kinds of implications for the men when they went to trial.

QUESTION: Well, what was the basis for the first judge's denial of bail?

MR. KANNAR: Well, under -- I can only tell you what it says under Rhode Island law.

Under Rhode Island law, a defendant in a case like this may be detained if there's a showing that it's a certain kind of crime and that there's a strong probability, I believe is the language, of quilt.

The -- subsequent to this bail hearing in this case, that pretrial bail hearing in this case, the state supreme court, in an intervening decision, held that bail courts in the State of Rhode Island, even in these cases, have a duty to exercise their discretion, their considered discretion, to see whether in fact despite these showings and despite the nature of the offense that has been charged, the individual might still be a good bail risk.

Following that decision, when three post-trial judges looked at the case again, they released these men.

QUESTION: But for purposes of the trial, these people were held without bail.

MR. KANNAR: That is correct.

QUESTION: Let me ask you one other question.

You say that you are not asking the federal courts to decide on the deployment of security people, but because the Supreme Court of Rhode Island said this was an extraordinary situation, that in effect, I guess in your view, somehow has a bearing on the federal constitutional question.

Why is that, because the state Supreme Court didn't seem to rely on any federal constitutional grounds.

MR. KANNAR: Well, I think what the state Supreme Court was doing was really making what we might well regard as a finding of fact concerning the implications of this enhanced security on the average Rhode Island juror, raising thereby a presumption which needed to be rebutted or at least justified that these measures were going to cause some infringement of the defendants' --

QUESTION: So you say in an identical case coming perhaps from Massachusetts where the supreme judicial court had not intervened, the case would go differently.

MR. KANNAR: Well, what I think makes the most sense as a way of approaching the question generally is to try to think of it as possibly having both a sort of objective national standard in a sense, at least implicit in these situations, as well as a sort of local rule as a practical compromise, a local practice rule as a possible compromise. What -- I think if the governor of a state were to order the National Guard into every state court trial in the state and set up a machine gun nest with a machine gun trained on the defendant, regardless of whether that happened in only one case or in every case, I think this Court might well have some concerns about it.

In the meantime, the American Bar Association has articulated what seems to be a compromise, a workable, sensible, common sense solution.

QUESTION: But, you know, the American Bar Association doesn't write the Constitution.

MR. KANNAR: Of course not.

QUESTION: So why should any court just whose sole power comes from the federal Constitution, tell a state you have to follow the ABA?

MR. KANNAR: It's not that federal courts, or that we're asking this Court to tell a state that. What we're asking this Court to do is to give deference to the finding of the Rhode Island Supreme Court that in the State of Rhode Island at this time this form of security was unprecedented and raised very serious questions.

QUESTION: Then the Supreme Court of Rhode Island refused to reverse these convictions.

MR. KANNAR: Well, the Supreme Court of Rhode Island in its refusal to reverse these convictions re-emphasized, in fact, that the courtroom security measures were extraordinary, thereby --

QUESTION: Yes, but it didn't say, it didn't find them sufficiently extraordinary to reverse the conviction.

MR. KANNAR: Well, not exactly. What they held was that they were justified. We contest whether or not these extraordinary measures were justified, whether they are justified by an alleged union contract, by their -- by whether they're justified by an alleged police regulation, whether they're justified in the sense that unarmed, plain clothes persons could not have performed the same job just as well without raising the question of prejudice.

All of that we contest.

QUESTION: Well, don't you think the trial judge is in the best position certainly to judge the prejudicial impact, if any, on the jurors?

MR. KANNAR: Well, this Court, like the Rhode Island Supreme Court, this Court in Estella v. Williams has made the judgment that there are certainly inherently prejudicial in-court trial practices that cannot be imposed over defendant's objection without a special justification. That case clearly was overruling a trial judge.

Moreover, in that case it was also taking into account, as it emerged in oral argument in that case, that the judge in that case, like the judge here, had conducted a voir dire of the jurors before empaneling them as to the question that was presented there, namely, the effects of trying the prisoner in prison garb.

In addition, as it happens, it also emerged in oral argument there that there was even a post-trial federal habeas hearing in which the jurors were called in to testify and testified they couldn't remember what kind of clothes the defendant had been wearing, and that the clothes he had been wearing had no bearing on their decision in the case. This Court nonetheless as to that part of Estelle unanimously held the practice to be so inherently prejudicial that it couldn't be allowed over a defense objection.

QUESTION: Well, what was the prejudice --

QUESTION: Do you have in mind a case --

QUESTION: Excuse me.

QUESTION: Do you have in mind the case about 1970 in this Court where the defendant was bound and gagged --

QUESTION: And gagged.

QUESTION: -- and tied up in the court room? Justice Black wrote the opinion.

MR. KANNAR: We don't -- we don't dispute in the slightest the need for courts to impose security commensurate with the risks that are presented to them in a particular instance. I think in Illinois v. Allen there was a very substantial chance of disruption by the defendant. He was doing all sorts of things, and if I'm not mistaken, the Court was unanimous in that case, too, that there will be times when exceptional measures are justified. We don't dispute it.

QUESTION: But this -- I still can't understand, if these men had been unarmed it would have been all right?

MR. KANNAR: No, our position is that the state court having made a finding of fact that these conditions, whether it's the arms or the uniforms or a combination, and it may well be the combination, the uniforms are very impressive uniforms, as the Court can tell from our appendices.

QUESTION: Well, what's so impressive about a state trooper uniform?

QUESTION: Weren't they just here in the courtroom?

MR. KANNAR: When they -- it has to do, if the Court would consult the appendix, what it has to do with, they wear Sam Brown bandolier belts, they are required by state regulation to ear that hat at all times when they are on escort duties, as the major --

QUESTION: The hat scares people?

MR. KANNAR: It creates an impression --

QUESTION: An impression of what?

MR. KANNAR: Well, it's a psychological effect on the person perceiving it as the, and for that --

QUESTION: Well, what is the psychological effect?

MR. KANNAR: Of intimidation, of extreme dangerousness, of something extraordinary going on.

QUESTION: Well, what about the there who were acquitted? it was a selective fear, if it was there.

MR. KANNAR: Well, I think what the three who were acquitted tend to demonstrate is that this was a relatively close case, and as Justice Marshall articulated this morning --

QUESTION: Well, but this also might demonstrate -- you are answering a different question. My question is, is not the fact that three of them were acquitted at least some intimation that the jurors were not intimidated by the presence of uniformed officers?

MR. KANNAR: Well, there are, as we said earlier this afternoon, there are many ways to speculate about what the effects of various in-court practices might have --

QUESTION: But that's one of them, isn't it?

MR. KANNAR: It's one of them, sure.

QUESTION: That they were not intimidated.

MR. KANNAR: It's possible. It's possible. There are many other possibilities.

QUESTION: Well, isn't it more than possible, isn't it conclusive?

MR. KANNAR: Well, it isn't conclusive beyond a reasonable doubt that every single one of these jurors was unaffected as to Mr. Flynn with regard to the presence of the troopers. For all the record demonstrates, it could be that they acquitted the three who were furthest from the troopers, and convicted the three who were closest.

QUESTION: Do you consider the past criminal record of Flynn as being relevant at all to the opinion of the judge that security was needed in the courtroom?

MR. KANNAR: No, for two reasons. It's obviously a relevant fact in a one-defendant case. Now --

QUESTION: Well, it got into the record in the case.

MR. KANNAR: Well, that's right, but the problem vis-a-vis courtroom security in this case would have been solved if any two of the six defendants, not necessarily Mr. Flynn, had been admitted to bail. The articulated reason for having the four troopers was based upon the two to one ratio set forth by Captain Melucci, the committing squad officer, that there because there were six defendants as opposed to four, they needed four additional helpers from outside the committing squad force.

Had the trial judge considered bail as to all six and held that bail was appropriate for two of them, presumably, at least on the articulated rationale, the need for the troopers would have disappeared as to all six.

QUESTION: Well, the record shows that Flynn had been convicted of prior convictions for assault and battery, for armed robbery, and was an escapee from a Massachusetts prison.

MR. KANNAR: Well, there was, among other things, those facts were not relied upon by the trial court, nor, as I say, is it --

QUESTION: Well --

MR. KANNAR: -- simply a decision regarding his personal eligibility or appropriateness for bail that governs the courtroom security side of the case.

QUESTION: That could, may very well have been correct in the absence of that sort of criminal record, in light of the crimes with which these defendants were charged, but having in mind that record, I would think it would be relevant, but I take it you do not.

MR. KANNAR: It would be relevant in a bail determination regarding Mr. Flynn, to be sure. That, however --

QUESTION: Not relevant to the courtroom security?

MR. KANNAR: I beg your pardon?

QUESTION: Not relevant to the courtroom security?

MR. KANNAR: Well, if Mr. Flynn had been the only defendant, sure, but in this case there were five other defendants, and if any two of them had been released from bail under the theory and under the record here --

QUESTION: Well, five, making a total of six, would call for more handlers, would it not, in case they tried to disrupt the courtroom?

MR. KANNAR: Well, the others, if they had been released on bail, the articulated basis for having the troopers there would have disappeared.

QUESTION: Well, I'm just talking about the numbers. With six defendants and the usual ratio of two guards for every defendant, there certainly was a need for some manpower, was there not?

MR. KANNAR: Well, I don't think that's -- that's disputed in a serious way by the defendants even at trial. What they said was, trying to work our a practical compromise I think was if you need to do this,. if you feel you have to do this, why can't it be done in a less intrusive, a less impressive manner.

QUESTION: Was a request, was a request made for having the officers leave their firearms outside the courtroom?

MR. KANNAR: Well, in fact, even the head of the committing squad requested the state troopers leave their arms outside the courtroom.

QUESTION: But there was some state trooper rule that they had to wear their weapon, wasn't there?

MR. KANNAR: Well, there was an assertion by one of the witnesses, the state police major, that trooper never takes off his weapon anywhere. However, and the state Supreme Court, in reviewing the case on direct appeal, referred to an alleged state police regulation requiring them to wear their firearms. There is no such regulation.

QUESTION: It also required them to wear their hats you've been complaining about.

MR. KANNAR: I beg your pardon, Your Honor.

QUESTION: The rules also require them to wear that big hat that you were complaining about.

MR. KANNAR: Well, it did, it does require that.

Now, we maintain that this Court's holding in Estelle that administrative convenience cannot justify the imposition of prison clothes over an objecting defendant governs the same standard is the applicable standard in cases involving enhanced courtroom security. The only question here is a legal question, whether the measures were legally justified, that the convenience of the guards and the jury --

QUESTION: What do you mean by the term "legally justified?"

MR. KANNAR: Well, we mean as a question of law that there was a sufficient basis relating to the special circumstances presented by this case, these defendants, relating to courtroom security per se, that justified enhancing the in-court security.

We in addition say that once a criminal defendant's fair trial rights have been unjustifiably infringed through the intentional imposition over his objection of presumptively prejudicial in-court practices, that it does not suffice as a matter of law that the jurors with the best of intentions -- and I don't believe there's any suggestion in the First Circuit's opinion that it disbelieved the sincerity of the jurors -- may have honestly stated on a pretrial voir dire that they didn't think the troopers would affect their judgment, a judgment which was itself only to be rendered two and a half months further down the road.

We do not argue for the establishment of a nationwide standard. We argue that in a case where the state Supreme Court has made the appropriate factual finding that the enhanced security creates a presumptively prejudicial situation, that this Court must defer to the state court's finding of fact in that context, and therefore, hold that the conviction here must be overturned because the enhanced courtroom security was neither justified nor was it cured or remedied in any fashion by the pretrial voir dire.

If the Court has no further questions.

CHIEF JUSTICE BURGER: Very well.

Do you have anything further, Mr. Dickinson?

ORAL ARGUMENT OF THOMAS MORE DICKINSON, ESQ. ON BEHALF OF PETITIONERS -- Rebuttal

MR. DICKINSON: Yes, ore or two points, Mr. Chief Justice, if I may.

With regard to the issue of bail, it's very clear that under Rhode Island law at the time this case was tried, a pretrial detainee could be held without bail only upon a showing that he had a propensity to flee. I have cited at pages 9 and 10 of my brief, in Footnote 3, the case of Lemme v. Langlois in which the Rhode Island Supreme Court held that a subsidiary finding to holding without bail is a danger that the individual may seek to flee, so that that, I think, is part of the record in this case. The initial judge must have made that conclusion with regard to all of the defendants in this case, that they had that propensity.

With regard to Mr. Justice Marshall's questions regarding the difference between guns and uniforms, I would refer to pages 23 and 24 of our brief in which we discuss the concession by Flynn's trial counsel that he would have been happy if these troopers had been moved somewhere else and done some other kind of duty, and if state marshals had been brought in to replace them.

So I would submit that that clearly indicates that he would have been happy with marshals, and he's not -- he's not complaining about --

QUESTION: Uniformed marshals.

MR. DICKINSON: Uniformed, uniformed marshals, certainly, Your Honor.

And with regard to hats, just finally, there's nothing on this record to suggest that these troopers wore hats in the courtroom, and I would suggest that they did not.

Unless the Court has any other questions, I would rest on my brief.

CHIEF JUSTICE BURGER: Thank you, gentlemen.

The case is submitted.

(Whereupon, at 2:47 o'clock p.m., the case in the above-entitled matter was submitted.)