Transcript

IN THE SUPREME COURT OF THE UNITED STATES

ARIZONA, Petitioner v. ORESTE C. FULMINANTE

No. 89-839

October 10, 1990

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 12:59 p.m.

APPEARANCES:

BARBARA M. JARRETT, ESQ., Senior Assistant Attorney General of Arizona; on behalf of the Petitioner.

PAUL J. LARKIN, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; as amicus curiae, in support of the Petitioner.

STEPHEN R. COLLINS, ESQ., Phoenix, Arizona; on behalf of the Respondent.

PROCEEDINGS

CHIEF JUSTICE REHNQUIST: We'll hear argument now in No. 89-, excuse me, 839, Arizona v. Oreste Fulminante.

Ms. Jarrett.

ORAL ARGUMENT OF ROBERT T. ADAMS ON BEHALF OF THE PETITIONER

MRS. JARRETT: Thank you, Mr. Chief Justice, and may it please the Court:

This case presents two separate issues, a voluntariness issue regarding a confession and a harmless error issue.

QUESTION: Will we need to decide both?

MRS. JARRETT: I do not know if the Court will need to decide both of these, Your Honor.

QUESTION: Well, you win if we decide either one of them your way.

MRS. JARRETT: That is correct.

I will be addressing the voluntariness issue, and Mr. Larkin from the Solicitor General's office will be addressing the harmless error issue.

At Oreste Fulminante's trial for first-degree murder, two separate confessions were introduced to him over his objection. The first was a confession that he made while he was incarcerated in a Federal prison. He made the first confession to a fellow inmate, who was in reality an FBI informant.

The second confession Mr. Fulminante made was 6 months after the first one. It was after he had been released from the Federal prison and was no longer an inmate. He made this confession to Donna Sarivola, who was at that time Mr. Sarivola's fiancee. They were shortly thereafter married.

Prior to trial, Mr. Fulminante filed his motion -- voluntariness motion for a hearing. There was a Jackson v. Denno hearing in the trial court, but no witnesses were called at this hearing. The defense agreed to the -- a stipulated set of facts that were set forth in the prosecutor's trial response.

The trial court ruled on the voluntariness issue and other issues regarding both of these confessions based upon oral argument by the parties and the stipulated facts. The court ruled that the first confession, the one to the inmate informant, was voluntarily made. The court specifically found it was not the result of any promises, threats, or coercion by any Government agent. The court found it was fully voluntary. The court also found that the second confession to the inmate informant's wife was also voluntarily made and was not the fruit of the poisonous tree, as the defendant argued.

On direct appeal, after Mr. Fulminante had been convicted of first-degree murder, on his direct appeal, he re-raised the voluntariness question. He claimed in the Arizona Supreme Court that this -- this confession to the inmate informant had in fact been coerced by a promise of protection.

QUESTION: In examining that issue, did the Arizona -- was the Arizona Supreme Court confined just to the suppression motion that the judge ruled on or could it and should it also take into account the evidence that might have been given at trial on the point?

MRS. JARRETT: The court did consider the evidence at trial, and I believe it was proper for the court to do so. The Arizona court has always, as a matter of Arizona law, whether it's constitutionally required or not, has looked to the entire trial record in determining whether a confession is coerced.

QUESTION: And if we hear that issue, we look at the same testimony?

MRS. JARRETT: That is correct, Your Honor. I believe it would be proper for this court to also examine the entire record, which is what --

QUESTION: Well, don't we owe some deference to the court's findings in -- of a coerced confession?

MRS. JARRETT: Your Honor, I believe that the only deference that this Court owes to the Arizona Supreme Court regarding the coerced confession is to the facts, the underlying facts that the Arizona Supreme Court found in regard to the confession. The question whether the confession was actually coerced is a matter of Federal constitutional law, which this Court should resolve with a -- due deference to the Arizona Supreme Court's findings that --

QUESTION: But that court drew some inferences from the trial court record and on that basis made its finding of coercion. It's a little hard for us to undo that, don't you think?

MRS. JARRETT: Your Honor, I respectfully disagree, and one reason I disagree is that the Arizona court determined as a matter of fact that Fulminante was in danger while in prison. And this is not borne out by the record. The only evidence in the record, and this is from Sarivola's trial testimony, is that it is possibly a prison -- or a prisoner who is known to have killed a child or be a child murderer would be in danger while in prison.

This was not a stipulated fact that was before the trial judge when he made his finding, and there is simply no evidence in the regarding that particular fact, so that is why the State contends that the Arizona's court's finding of involuntariness is based in a large part upon its finding that this promise of protection was so incredibly coercive because Mr. Fulminante was in actual danger while it was in prison.

QUESTION: Well, I thought that Sarivola said that his name that -- he was going to be carried out horizontally and so forth?

MRS. JARRETT: That is a portion of the record. That was not part of the evidence before the trial judge. A portion of his interview with the defense counsel prior to trial was attached to one of the pleadings, and he did speculate in that particular portion of the interview that that was his feeling.

QUESTION: But that was not recounted again at trial?

MRS. JARRETT: No. The defense attorney at trial never asked him whether Mr. Fulminante was in actual danger or asked him his feelings about the danger to Fulminante. And the only evidence that there was even a remote possibility was that there was a stipulated fact that Fulminante had been receiving some sort of rough treatment and what-not is the phrase Sarivola used from the other prisoners, but no one ever asked Fulminante or Sarivola what this rough treatment consisted of. And the record is just unclear on that.

But in any event, he -- Fulminante did not ask Sarivola for protection. He never indicated that he was in need of protection, and even after Sarivola made this offer of protection to him, he merely told him about the murder during their casual conversation without saying now are you going to help me?

So, that is the reason that I believe that this Court should not defer to the Arizona Supreme Court's finding of the law in regard to the voluntariness without first reexamining the record to see if there is any evidence of actual danger to Fulminante.

QUESTION: Mrs. Jarrett, you concede, however, that the FBI informant, before the -- immediately before the conversation at which the confession was made, did refer to the fact that the defendant had been receiving hard treat -- he heard the defendant had been receiving hard treatment from other inmates and that he could protect him from that, but if he -- if he wanted such protection, he'd have to be open with him about everything.

MRS. JARRETT: That is a fair statement, Your Honor.

QUESTION: And you concede that all of that was in the record?

MRS. JARRETT: That is all in the record, Your Honor.

In regard to the State's contention that the Arizona court not only ruled incorrectly on the involuntariness issue, it is the State's contention that the court actually applied an incorrect standard in ruling on the voluntariness issue. The court in effect found a promise resulting in a confession and stated that it was a coerced confession without ever examining one of the most important facts or one of the most important circumstances in the case, whether Fulminante was a person whose will could easily be overborne by a promise of promise of protection.

When Fulminante's character is examined it is very clear that he is not such a person. When he made this admission to Sarivola, he went into great detail about the terrible way in which he had killed his young stepdaughter, and he used the phrase that he had clipped her. He did not, you know, show any remorse or, or anything of that nature. He went into the details and there's a finding by the Arizona court that, and this is in appendix to the petition at A76, the trial court found in its special verdict in this matter that these were the statements of a man who was bragging and relishing the crime committed.

So, the Arizona court on one hand finds that this person was person was compelled to confess. But on the other hand, finds -- makes a finding that he is bragging and relishing at the time that he's actually confessing that. That is simply --

QUESTION: Well, isn't it two different courts? Isn't it the supreme court that found that it was coerced? And this is the finding by the trial court.

MRS. JARRETT: This is a finding by the trial court, Your Honor.

QUESTION: In the trial court there was not coerced, didn't it?

MRS. JARRETT: That is correct. The trial --

QUESTION: So there's no inconsistency there, is there?

MRS. JARRETT: I disagree respectfully, Your Honor, because this language by the trial court in the special verdict about him bragging and relishing --

QUESTION: Right.

MRS. JARRETT: -- was affirmed on appeal. The Arizona court basically adopted that finding regarding his state of mind at the time he was confessing by affirming the trial court's --

QUESTION: They referred to this specific language in the --

MRS. JARRETT: They do quote this language in the opinion --

QUESTION: I see.

MRS. JARRETT: -- which is -- I was referring to the opinion at A76. That is a portion of their opinion in which they quote the trial court's finding.

QUESTION: I see.

MRS. JARRETT: And in regard to, to --

QUESTION: And that was in connection with affirming the aggravating circumstance, right?

MRS. JARRETT: That is correct, Your Honor.

QUESTION: Yeah.

MRS. JARRETT: It was in connection with that. In looking at one of the most important factors in determining whether Fulminante's state of mind was such that he could have been coerced by a promise into confessing, the court has to look not only at the fact that he did confess in response to the promise but at his characteristics.

And, as noted in the briefs, he's a middle-aged sociopath. He's low- to low-average -- or low-to-average intelligence. He had absolutely no mental or physical problems that would have made him especially susceptible to coercion.

QUESTION: Well, how big was he?

MRS. JARRETT: This pre-sentence report indicates anywhere from 5 foot 3 to 5 foot 5 and around 120 pounds, so --

QUESTION: How big was this -- the informant?

MRS. JARRETT: I'm not aware. I -- that didn't -- as far as I'm aware that did not come out in --

QUESTION: There is no dispute about the fact that everybody seemed to understand the informant was in a position through his connections or otherwise to provide protection to somebody who might otherwise be violently treated by inmates, isn't that right?

MRS. JARRETT: Yes, he was.

QUESTION: Yeah.

MRS. JARRETT: Going back to Mr. Fulminante's characteristics. He had been in prison before. This was the third time he was in prison. He had six prior felony convictions and, interestingly enough, the first time he was in prison as a young man at age 26, when he felt fear of other inmates, all he did was ask to be put in protective custody and it was done. There is simply nothing to indicate that if he was actually in fear, he could have done that in this case. None of the prison authorities were apparently aware that he was receiving any kind of treatment, or this rough treatment was certainly not bad enough that he would complain to authorities.

And another aspect of Mr. Fulminante's character and part of the whole circumstances of this case are his relationship with this prison informant. He wanted to be like Sarivola. He wanted to become involved in organized crime and although -- unbeknownst to him -- Sarivola was acting as an informant, to Mr. Fulminante's knowledge, he was still actively involved in organized crime. And Fulminante, after becoming acquainted with Sarivola, actually agreed to commit some contract killings after his release from prison. So this is the man that he wants to work for.

QUESTION: May I just clear up one thing? Were any of these confessions taped or were -- or is this all the testimony of Sarivola as to what the man told him?

MRS. JARRETT: None of them were taped, Your Honor. They were -- they were made in the prison. Sarivola was not wearing a mike.

QUESTION: So, the whole -- the facts that you describe are entirely based on the testimony of this individual --

MRS. JARRETT: Yes.

QUESTION: -- Sarivola?

MRS. JARRETT: Yes, they are, Your Honor. And also there was the second confession, which was also not taped, but which was made to the -- Donna Sarivola later.

QUESTION: Whom?

MRS. JARRETT: To Donna Sarivola, the --

QUESTION: The wife?

MRS. JARRETT: That's correct. The prison informant's wife.

QUESTION: That -- that confession wasn't with any kind of an inducement I -- at that time?

MRS. JARRETT: No, Your Honor, other than the inducement that Donna Sarivola inquired of Mr. Fulminante when he got in the car to drive to Pennsylvania, well, why aren't you going back to Arizona, don't you have family there. Whereupon he launched into this diatribe about the young child he had killed there and the terrible things he did to her. So it was certainly not the result of any sort of inducement.

QUESTION: Well, did the Supreme Court of Arizona reach the question of whether the second confession was -- was or was not the fruit of the poisonous tree?

MRS. JARRETT: Yes, they did, Your Honor, and in their opinion they determined that it was not the fruit of the poisonous tree that was fully litigated both at the trial court. The trial court ruled against Mr. Fulminante on that and it was relitigated in the direct appeal. The Arizona court found no, it was not. It was too attenuated. It was 6 months later after he was no longer in need of any kind of protection.

QUESTION: Then on rehearing, the Supreme Court of Arizona said that the admission of a involuntary confession can't be harmless error, and so they reversed -- I suppose they didn't have to go back under that line of reasoning and decide again whether the second confession was the fruit of a poisonous tree. The admission of the first confession made the -- the judgment infirm -- or the verdict infirm.

MRS. JARRETT: It did, however, the court did look at that question again, because it was raised in the defendant's motion for reconsideration and the court in its second -- in its supplemental opinion specifically rejected that claim again, saying none of his other claims are any good, just this one regarding harmless error.

QUESTION: Thank you.

MRS. JARRETT: Thank you. I'll reserve my time.

QUESTION: Very well, Mrs. Jarrett.

Mr. Larkin, we'll hear from you.

ORAL ARGUMENT OF PAUL J. LARKIN ON BEHALF OF UNITED STATES AS AMICUS CURIAE, IN SUPPORT OF PETITIONER

MR. LARKIN: Thank you, Mr. Chief Justice, and my it please the Court:

The rule of automatic reversal applied by the Arizona Supreme Court in this case is an anachronism. It was adopted at a time when rules of automatic reversal were the only ones known to the law.

QUESTION: Is it the law?

MR. LARKIN: It is. It is still the law today. In that respect the Arizona Supreme Court was correct. The Arizona Supreme Court initially ruled that it was legally permissible to find that the error in this case was factually harmless. On reconsideration they changed only the first half of that ruling. In fact, if you look to page C2 in the petition appendix, the Arizona Supreme Court lists all the claims that were made in the rehearing petition. One of them was that the error was not factually harmless and that, as my colleague has pointed out, was among the claims that was rejected on rehearing.

So what we have before you then, Your Honor, is a case in which the only reason the Arizona Supreme Court held this error to be prejudicial was it felt that this Court's precedence foreclosed it from giving effect to its finding that the error was harmless as a factual matter.

Since Chapman v. California 20 years ago first held that harmless error analysis can apply to constitutional violations, this Court has often made clear that the harmless error doctrine is in fact the rule and no longer the exception. The law, therefore, generally speaking, is the exact opposite of where the law stood in 1897 when the Bram case was decided.

It is Bram in fact that is the source of the rule that the Arizona Supreme Court invoked in this case and Bram in fact describes the only category of evidence that is today automatically and in every case excepted from harmless error analysis.

Interest -- interestingly --

QUESTION: Mr. Larkin, the Supreme Court of Arizona at least articulated in its opinion that it was applying the totality of the circumstances test, didn't it?

MR. LARKIN: Yes, on the -- on the question of whether the statement to Anthony Sarivola was in fact coerced, they said --

QUESTION: Why?

MR. LARKIN: They said that they were applying the totality of circumstances test.

QUESTION: Why?

MR. LARKIN: But on that issue, the first issue in this case, what they treated as decisive, was the fact that there was an offer of protection made and they treated as dispositive, the ruling in the other half of the Bram case, that when such an offer is made of any type, a confession is necessarily involuntary. So actually the Arizona Supreme Court invoked both halves of the Bram decision in this case to upset the conviction, the first half being that any offer renders a statement involuntary, the second half being that any involuntary statement has to require a reversal.

Now, interestingly, neither Respondent nor supporting amicus defends the rationale given in the Bram case for that rule, and we think they're right not to do so. Bram rested on a perceived logical contradiction between the propositions that a particular item of evidence could be at once probative and yet harmless.

In fact today, under modern principles of appellate review, there is no longer any such contradiction. A particular piece of evidence can be probative if it has any tendency to prove or disprove a matter in issue. But the same piece of evidence can in fact be harmless if it is generally insignificant in the context of the entire record. And it is in the context of the entire record that the harmlessness determination must be made, while it is in the context of that particular piece of evidence that the relevancy determination must be made.

In fact, under present principles of appellate review, the contradiction that troubled the Court in Bram exists only when a particular item of evidence is the sole proof of a disputed issue in the case. In all other circumstances the contradiction does not exist.

The question then becomes whether there is any --

QUESTION: Do you think that that's why Bram reached that conclusion or did it see the logical contradiction in every case?

MR. LARKIN: Well, Bram didn't have before it the rule that harmless errors could be overlooked.

QUESTION: I recognize that, but we're talking about the logical contradiction that the Court thought that it saw in Bram. Did it see that just because the confession was the only piece of evidence?

MR. LARKIN: No, I think it saw it because any piece of evidence, whether or not it was a confession, would lead to that type of contradiction. In other words, they -- the Court in Bram thought that it was contradictory for a prosecutor to argue to the trial court that this evidence proves the defendant is guilty and then argue to an appellate court that the same evidence doesn't prove he's guilty or at least didn't have any prejudicial effect because there was plenty of other evidence in the case.

QUESTION: Are you saying, Mr. Larkin, just to be sure that I get it, that if the -- this case were retried without the Sarivola confession admitted that all the other evidence admitted, you can say that -- the judge would state beyond a reasonable doubt that the man would be convicted?

MR. LARKIN: Yes. We think the error in this case was factually harmless and that the Court in this case should use this vehicle for saying that errors like this should no longer be excepted from the harmless error --

QUESTION: So the result is purely to save the cost to the State of a retrial. It has nothing to do with the ultimate outcome and being sure you get the right verdict, because you'll get the right verdict anyway.

MR. LARKIN: Well, I'm not --

QUESTION: This guy will go to jail no matter what we do.

MR. LARKIN: Well, we're not -- we're not in this case interested in the particulars of this particular judgment, if that's --

QUESTION: But it would be true in every comparable case.

MR. LARKIN: Well, in every case where any erroneously admitted evidence is harmless you will automatically have the verdict stand. If that's what -- if that's what you're getting at then I would certainly agree.

QUESTION: Well, not only that, but if you lose on retrial and if the evidence is excluded, in every case we would be able to say beyond a reasonable doubt he would be reconvicted because the other evidence is so power -- powerful.

MR. LARKIN: Sure. And that -- that's the sort of inquiry that's --

QUESTION: So all that's at stake --

QUESTION: Assuming the jury does its duty.

MR. LARKIN: Correct. I mean, the assumption you have to make is the jury is going to be rational. That's the type of assumption you have to make --

QUESTION: Right.

QUESTION: Mr. Larkin, can you conceive of a confession that would not be considered harmless error because it was such a bad way of getting it?

MR. LARKIN: Absolutely. Well, I would certainly concede --

QUESTION: Well, was that considered in this case?

MR. LARKIN: They did -- they did not consider whether the means by which the confession was obtained affected the -- inquiry into prejudice. And that --

QUESTION: Well, what constraint is there on the offices of Government in Arizona to prevent them from denying people their rights?

MR. LARKIN: Well, Your Honor, what you're talking about is a question --

QUESTION: Is there any restraint at all?

MR. LARKIN: Yes. What you're talking about is a question of deterrence. Applying a harmless error rule is not likely to lead to an increased number of coerced confessions, because no police officer at the time he is deciding whether and how to question someone --

QUESTION: Do you think that you and the members of this Court are better able to decide that than the Supreme Court of Arizona?

MR. LARKIN: Well, this Court is certainly better able to decide whether generally speaking such errors can be harmless, because this Court is the only court that has the power to overrule the Bram case, which the Arizona Supreme Court didn't.

QUESTION: Well, how do we know what goes on in Arizona?

MR. LARKIN: Well, the way that we know what goes on is to rely on the find --

QUESTION: Is what you tell us.

MR. LARKIN: No, it's to rely on the findings made by the trial court and the appellate court. It is true a great many confessions will be prejudicial, but it does not follow that every confession will be prejudicial.

QUESTION: In deciding -- it depends on what you mean by what -- the error's harmless. You've described it as though it means another jury -- a different jury would have come to the same conclusion. But what if I think that the test of harmlessness should rather be would this jury -- did this jury rely upon -- substantially rely upon that evidence --

MR. LARKIN: Well --

QUESTION: -- in reaching its conclusion? And if I believe that the latter is the test, there may be some sense in a special rule for coerced confessions, because nothing is as -- is as conclusive as a confession. The jury might well not even look at the rest of the evidence. They say, you don't have to worry about the rest. You have the man's confession right here.

MR. LARKIN: I have several responses. First, in the Milton and Satterwhite cases the Court said that confessions obtained in violations of the Sixth Amendment can be harmless. There's no material difference between a Sixth Amendment and a Fifth Amendment violation if the question is whether the defendant was prejudiced. The question of prejudice doesn't focus on the label given to the violation. It focuses on the substance of the statement and the context in which a statement is made, which is the remaining evidence in a case.

In either case, the question is was this error likely to have had a material effect on the jury. I agree. The question is whether this jury was prejudiced, whether the defendant was prejudiced before this jury by the error. That's not, I think, different from the answer I gave to Justice Stevens, because generally what you're trying to decide is what a reasonable jury would have taken in response to this sort of mix of evidence before it.

QUESTION: Yeah, but this jury might have gotten together, when you have this kind of a confession, might have gotten together in the jury room and said, look it, we have this confession. We don't even have to look at the rest of the evidence, don't you think this confession is enough. And they all say, yes, that's right. So the jury never really even considered the rest of the evidence.

MR. LARKIN: Well, but the same argument, Your Honor, could be made in response to any erroneously admitted evidence, and the Court has held in numerous cases throughout the past 2 decades, that erroneously admitted evidence is a classic example of where the harmless error rule should apply, because the record is before the appellate court. There's no inquiry that has to made into what should have been put into the record. You have the entire record. And you can have cases where there is an eyewitness identification, where there is testimony by confederates who've now turned State's evidence, where there is videotaped testimony.

In the -- once of the cases cited in our brief, Brown v. the United States. There was a Bruton violation but the police had pictures of the defendant committing the crime. It's impossible, I think, to say in those sort of circumstances that a reasonable jury would automatically have said, the confession is all I need to look at. I can just disregard the rest of the evidence.

Our submission in this case simply asks the Court on this issue to say that appellate courts in the State and Federal system should be free to look into that question. We're not saying every confession will be nonprejudicial. We're just saying they should be allowed to make the inquiry.

Thank you.

QUESTION: Thank you, Mr. Larkin.

Mr. Collins, we'll hear now from you.

ORAL ARGUMENT OF STEPHEN R. COLLINS ON BEHALF OF THE RESPONDENT

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

In at least 25 opinions this Court has stated that a conviction can never stand when a coerced confession has been admitted at trial. And the Court has stated many times that the reason for this is that no civilized system of justice can condone the use of a coerced confession.

QUESTION: Mr. Collins, the Arizona Supreme Court found that this was extremely coercive, didn't they?

MR. COLLINS: Yes, it did.

QUESTION: Uh, what evidence supports that?

MR. COLLINS: The fact that the informant, Mr. Sarivola, told Mr. Fulminante that he was in jeopardy -- his life was in jeopardy, that if he did not agree to confess in exchange for protection that Mr. Sarivola was going to let the other inmates go after Mr. Fulminante. So in order to save his own life, Mr. Fulminante had to confess. There was no other option. So, it was indeed extremely coercive.

QUESTION: Well, the other side disagrees mightily with that, doesn't it?

MR. COLLINS: I think the record will support my position.

QUESTION: And your position is borne out based on the stipulated testimony that was given to the trial judge or does it necessarily rely on what was testified -- what was the testimony at trial?

MR. COLLINS: The testimony at trial was also that -- okay, first of all at trial the coercion involvement confession was not considered greatly. Defense counsel did not pursue that. There was --

QUESTION: Do you -- do you interpret the testimony that was given to the judge by stipulation in connection with the suppression hearing fully sufficient to support the interpretation of the evidence that you've just given to Mr. Justice Blackmun?

MR. COLLINS: Yes, I do.

QUESTION: That Sarivola told Fulminate that Fulminate's life was endangered?

MR. COLLINS: Yes, and that he had to confess in order to be protected. The stipulated facts are enough alone, but this Court does not have to look at just the stipulated facts.

QUESTION: Well, I'm asking if you get that interpretation just from the stipulated facts?

MR. COLLINS: Yes, I do. But this Court can also consider the other interviews and the court testimony. And it was clear from both -- or from the informant, Mr. Sarivola, that indeed he did require a confession in order for protection, in order to protect -- or in order for him to offer protection to Mr. Fulminante.

In any event, this Court has held that no matter how overwhelming the other evidence in a case, even if there are other valid confessions, even when there have been five other valid confessions, that a coerced confession is not subject to harmless error analysis. It is an absolute prohibition. And this absolute prohibition reflects the original intent of the framers of our Constitution. One of the main reasons --

QUESTION: How -- how can -- isn't that a rather extravagant statement since the concept of harmless error had never even been developed at the time that the framers sat in 1787?

MR. COLLINS: I believe it is not, because Patrick Henry, who was largely responsible for the passing of the Bill of Rights, stated that the Bill of Rights was necessary so the authorities in this country could not at a later date allow the practices of the inquisitions in Europe, allow coerced confessions. And he said it had to be an absolute prohibition in the Fifth Amendment. So, he --

QUESTION: And then --

MR. COLLINS: -- did not specifically --

QUESTION: What part did Patrick Henry play in drafting the Constitution?

MR. COLLINS: He is the one that advocated having a bills of rights and was largely responsible --

QUESTION: Well, he wasn't even there, was he?

MR. COLLINS: No, he did not sign it, but he is the one that insisted and was largely responsible for having it passed.

Justice Frankfurter in Culombe v. Connecticut discussed the fact that the founders of our country were well aware of the Star Chamber act that had occurred in England and were well aware of the inquisitions that had occurred on the continent of Europe. And because of those inquisitions, the framers of our Constitution insisted that we have a system of justice based on accusation and independent proof, not on inquisition. Patrick Henry --

QUESTION: Mr. Collins, do you think that our recent holding in Perkins against Illinois has any bearing on whether this confession was coerced?

MR. COLLINS: I think the bearing that Perkins v. Illinois has is the Court specifically noted there that the conduct was -- permissible by the undercover agent because there was no coercion. It was clear that this Court held or was stating that if there was coercion, it would be a different situation, and that is what we have here. We do have coercion.

QUESTION: Is, is there evidence in the record to the effect that the defendant was in danger while in prison from the other inmates?

MR. COLLINS: Uh, Sarivola did testify that, that Mr. Fulminante was in danger from the other inmates and in any event the fact that Mr. Sarivola himself told Mr. Fulminante that his life was jeopardy made Mr. Fulminante believe that his life was in jeopardy. So he had to confess. So subjectively Mr. Fulminante had to be in fear.

QUESTION: Well, I guess the State's position is that he could have sought protective custody.

MR. COLLINS: The State makes that claim but provides no evidence to support, and indeed the evidence tends to show it was not a viable alternative. When Mr. Fulminante was in prison previously, he could not psychologically handle the isolation of protective custody. He had to be transferred to a State psychiatric hospital and the psychologist at that hospital determined that Mr. Fulminante should remain at the State hospital until his term expired, because he could not handle being sent back to the prison, the general population, or to protective custody. So that was not a viable alternative.

In any event, stating that Mr. Fulminante could seek protective custody ignores the actually setting of when and where the confession occurred. It occurred in the evening in the prison yard. If Mr. Fulminante had not confessed immediately that evening, quite likely he would not have made it out of the prison yard alive. That evening Mr. Sarivola came over to Mr. Fulminante and said, your life is in jeopardy. I will protect you from the other inmates if you confess.

QUESTION: Can you again tell me where that is in the record?

MR. COLLINS: I can't -- it would be during Mr. Sarivola's testimony.

QUESTION: Did he say your life -- your life is in jeopardy?

MR. COLLINS: I believe those were the exact words: your life is in jeopardy.

QUESTION: Uh-huh.

MR. COLLINS: You have to realize Mr. -- at least one statement Mr. Sarivola made. Mr. Sarivola stated six different ways of how he told Mr. Fulminante that he had to confess. But one of them was, yes, his life was in jeopardy.

QUESTION: Do you think the Arizona Supreme Court relied essentially on the Bram decision in drawing its conclusions about the coercive nature --

MR. COLLINS: No, I don't.

QUESTION: -- of that first confession?

MR. COLLINS: No, I do not think so at all. They correctly applied the totality of the circumstances test. They relied on the other cases since Bram where this Court has held that where there is a coerced confession, the case must be reversed, automatic reversal.

The State contends that the State of Arizona was relying on the mere promise language of Bram. That is absolutely incorrect. It is taken out of context. If you read the opinion of the Arizona Supreme Court, they cite Bram only for the language "or other undue influence." They underline that language. They specifically do not underline "a promise." The Arizona Supreme Court clearly did not hold that this was a situation in which there was a promise. They considered it was violence -- a threat of violence.

QUESTION: Well, Bram talks about promises, doesn't it?

MR. COLLINS: Yes, it does.

QUESTION: And any inducement, no matter how small?

MR. COLLINS: Yes, it does.

QUESTION: Well, I suppose you're relying on that, too?

MR. COLLINS: No, I'm not. This Court has gone in other cases and stated that not every promise, however slight, is an inducement.

QUESTION: Or any inducement.

MR. COLLINS: Or any inducement. But this Court has never backed off since Bram of any use of physical coercion to obtain a confession. This is not just a mere slight promise situation, so Bram is still applicable today as far as physical coercion.

QUESTION: You're not limiting the rule you propose we adopt to what I might call really coerced confessions. I mean, I assume you would continue to apply Bram to failure to give the Miranda warning which causes the confession to be deemed coerced, is that correct?

MR. COLLINS: No, I do not think we have to go that far with Bram, but when you get to the threat of physical violence in exchange for a confession, when it is that serious, it still applies.

QUESTION: Uh-huh.

MR. COLLINS: The situation we have in this case.

QUESTION: You don't -- you don't make that distinction in your brief that I recall, do you?

MR. COLLINS: I --

QUESTION: I mean, coerced confession is sort of a term of art, and it includes any confession that, for example, doesn't comply with the requirements of Miranda. Do you think we can draw a line between some other confessions and a really coerced confession? Is that it?

MR. COLLINS: Well, many courts have talked about a violation of Miranda being a coerced confession and that was part of the problem with the original opinion of the State of Arizona -- the Supreme Court of --

QUESTION: Right.

MR. COLLINS: -- Arizona. They confused and coerced confessions that are in violation of Miranda with truly coerced confessions --

QUESTION: Uh.

MR. COLLINS: -- such as we have here. So a violation of Miranda is not what I'm considering a truly coerced confession, no.

QUESTION: You wouldn't agree with the Government I suppose that if the court had relied on this "any inducement however small or any promise." that the court was wrong?

MR. COLLINS: If it determined that it was a very slight promise. It's not an absolute rule that every slight promise requires automatic reversal. That's true, but this is not a slight promise case.

Patrick Henry stated that if this country ever came to condone the use of coercion to obtain confessions, that, quote, "we are then lost and undone," end quote. And the prohibition against the use of coerced confessions was of such importance to the framers of our Constitution that the Fifth Amendment was written that no person shall be compelled at any criminal proceeding to be a witness against himself. It is an absolute prohibition. There are no exceptions. There certainly is not an exception saying, unless a judge later determines that it is harmless error.

And it is difficult to envision any exception that would have more horrified the framers of our Constitution than that exception, for with that exception it allows at given case the practices of the inquisitions in Europe to be condoned in this country if a judge or a panel of judges later determines that it was harmless error. In other words, whether the use -- the conduct involved in coerced confession is condemned or condoned would be decided on a case-by-case basis. The framers of our Constitution would not have tolerated that.

The State of Arizona is requesting this Court to nullify the intentions -- the original intent of the framers of our Constitution in considering the right involved, the one that carries as much weight as any right in our country. It would be expected that the State of Arizona would have an extremely compelling reason. The State does not. The only reason the State of Arizona has for requesting that this -- that harmless error analysis be applied, is so the State of Arizona does not have to retry Mr. Fulminante. So, the State of Arizona does not have to give Mr. Fulminante the trial that the State deprived -- the fair trial -- that the State deprived him of in the first place.

QUESTION: Mr. Collins, on retrial are -- is the issue of whether the second confession is -- may come into evidence, is that resolved now against the defendant conclusively?

MR. COLLINS: I believe it would be because of the final of the Supreme Court of Arizona.

And the inconvenience in retrying Mr. Fulminante carries slight weight here, because a retrial would take less than 2 weeks and if, as the State of Arizona claims, there is this overwhelming evidence of guilt, there should be little difficult -- difficulty for the State of Arizona.

And the State's position ignores the great inconvenience to the entire judicial system if this Court abandons the bright-line rule that a conviction cannot stand when there is a coerced confession at trial. If this Court abandons that rule, then the appellate court will not just be reviewing the limited portion of the appellate record to determine if there actually was a coerced confession.

QUESTION: Well, Mr. Collins, you could say that about the harmless error doctrine generally, that it does dispense with a bright-line rule where any error was made reversible. But the judgment of certainly the State courts and of this Court for 20 years has been that in many cases harmless error is a permissible doctrine.

MR. COLLINS: That is correct regarding rights carrying lesser value.

QUESTION: Of course, it's a question of whether this right is to be properly numbered among that one bundle or another.

MR. COLLINS: To an extent that is true. This right is of the highest magnitude in our society. Therefore, the State needs a much more compelling reason than they would need as far as harmless error analysis being applied to some other right such as the Miranda --

QUESTION: Well, Mr. Collins, in the case of Milton against Wainwright, this Court indicated that admission of a confession allegedly obtained in violation of Fifth as well as Sixth Amendment rights could be harmless error.

MR. COLLINS: The Milton v. Wainwright --

QUESTION: And I think that case has been relied on by some lower courts, has it not?

MR. COLLINS: Yes, it was relied on by the Arizona Supreme Court in its original opinion. That is how they got into trouble.

QUESTION: Uh-huh.

MR. COLLINS: The dissenting opinion on the second opinion of the Arizona Supreme Court still relied on Milton v. Wainwright, saying that it held that coerced confessions can be subject to the harmless error doctrine. Well, cases since Milton v. Wainwright by this Court have noted that it only dealt with Sixth Amendment rights not coerced confessions.

And, indeed, it would be rather strange that if Milton v. Wainwright reversed over 25 previous cases holding that harmless error doctrine could not be applied to coerced confessions. It would be rather strange if Milton v. Wainwright does not discuss one single case, does not discuss any of those 25 other cases. Obviously, if it's reversing a long string -- a long line of cases.

QUESTION: Do you think that 25 other cases simply have dicta to that effect or are they direct holdings for your position?

MR. COLLINS: Some of them are dicta. Many of them, probably a dozen, are direct holdings.

The judicial -- the inconvenience to the judicial system would be great because when weighing harmless error, the appellate are required to review the entire record on appeal. Often that entails thousands of pages. It is a lengthy and complex process. So judicial economy dictates against the State's position.

Now, in dozens of cases involving coerced confessions this Court has never approved of the conduct involved when you have a coerced confession. If the Court now condones that conduct by applying the harmless error doctrine, it has the same practical consequences as if the Court approves the use of coerced confessions.

As this Court has stated many times that conduct must be condemned. To do otherwise is fundamentally unfair to the defendant, who is denied a fair trial. It undermines public confidence in the entire judicial system, because it has the appearance that the courts will look the other way when the police have coerced a confession from a suspect. It has the appearance of impropriety because it appears that the courts will look the other way when do not enforce or when the police violate the very laws that they are to enforce.

And it signals to the police that is they have a suspect but insufficient evidence to obtain a conviction, they have nothing to lose by obtaining a coerced confession. The conduct may later be condoned. This should not be tolerated.

The matter presently before this Court is a classic case of the threat of violence being used to overbear the free will of a suspect who previously has refused to confess.

In 1982, Anthony Sarivola was a uniformed police officer in the New York City area. He was also working for the Columbo organized crime family. He was involved in loan sharking. He used violence to collect payments on extortionate loans made by the Columbo family. Because of this activity, in the fall of 1982, he was arrested by FBI Agent, Walter Ticano. Ticano knew of Sarivola's extensive and violate criminal history. Ticano knew that Sarivola was a corrupt and violent man. But despite this fact, Ticano chose to make Sarivola a paid Government informant and sent him after targeted suspects.

QUESTION: Do you think that he could hold off all the other inmates?

MR. COLLINS: Yes, there is a serious possibility that he could. Because of his connections with organized crime, the other inmates were afraid to do other than what he said. Also because of his power on a powerful prison commission, he did --

QUESTION: Is there evidence in the record to that effect?

MR. COLLINS: Not at trial but at the hearing I believe the prosecutor admitted that fact and in the interviews that is discussed -- interviews that were attached to a motion at the pretrial hearing.

Now, Agent Ticano knew that Sarivola had resorted to any means including the use of violence to obtain payments for the Columbo family. Ticano also knew that Sarivola would resort to any means necessary to obtain confessions from targeted suspects, that is, if Sarivola was paid well enough. And indeed the FBI did pay Sarivola well.

So it is entirely predictable that once Oreste Fulminante became a targeted suspect that we would have a coerced confession in this case. And I'm not claiming there is anything wrong with using undercover agents -- using Government informants. That's a proper police procedure. But there is everything wrong when the Government sends a known violent criminal after a citizen.

QUESTION: But he wasn't so susceptible to Donna was he?

MR. COLLINS: Well, when the confession was made to Donna Sarivola, Anthony Sarivola was also present then. It is not fleshed out in the record how much of that effect it takes, but certainly there was an influence.

QUESTION: But I thought you said that you were foreclosed to challenge the second rule for a confession?

MR. COLLINS: I'm afraid legally I am on the facts I disagree with how the Arizona Supreme Court ruled.

QUESTION: What if the defendant had asked for counsel -- and this is the only degree of coercion there is -- he -- they tried to interrogate him. He asked for counsel. They said all right, we'll send for counsel, but they continued to interrogate him before counsel arrived. Now we would consider that under our case as a coerced confession. Would that be the kind of coerced confession that you think harmless error would not apply to?

MR. COLLINS: I think, as I recall -- I don't recall the name of the case that this Court has applied it in similar situations to that, where --

QUESTION: Is that a really coerced confession or not a really --

MR. COLLINS: By no means.

QUESTION: That is not a really --

MR. COLLINS: No one would be as offended by the fact they confessed, because a lawyer wasn't next to him as they would if their very life was endangered. Having a lawyer is nowhere near the same value as saving your life.

And the problem with FBI Agent Ticano's conduct in this case is that no citizen can truly feel safe if at -- if at Ticano's whim he could send Sarivola, a violent man, against any citizen. And if he pays Sarivola well enough, Sarivola is going to obtain a confession from just about any person.

Now for all of his extensive and violent criminal activity, Sarivola received a total sentence of 60 days in prison, and he was serving this sentence in October of 1983 when he met another inmate named Oreste Fulminante. Rumors were spreading through the prison that Fulminante had murdered his stepdaughter. Because of those rumors, his life was indeed in jeopardy. The other inmates wished to harm him. Sarivola told Ticano of the rumors, and Ticano requested that Sarivola find out more information.

So Sarivola then employed the guise of friendship to obtain a confession. He befriended Fulminante, was with him everyday for weeks for several hours everyday. Sarivola on numerous occasions asked Fulminante if he committed the murder. Fulminante continually denied any involvement. So it was clear that Sarivola's attempt at deception was not going to work.

With 2 weeks left before Sarivola was to be released from prison, FBI Agent Ticano made a personal visit to the prison and specifically told Sarivola, quote, "get me the whole story," end quote. Clearly, Sarivola wanted a confession. And within hours of this directive, Sarivola did get a confession. It was better than 24-hour service.

Now that same evening after the personal visit by Ticano, Sarivola approached Fulminante in the prison yard. And, again, he reminded him that his life was jeopardy, that he had to confess in order to get protection. Now the State of Arizona has conceded that this -- in their briefs -- that this conduct was extremely or was objectively coercive. However --

QUESTION: Can you tell us generally where in the transcript the testimony is that you're referring to now? I realize you said you don't have a page citation. Is it somewhere in the joint appendix?

MR. COLLINS: Yes, it would be during Sarivola's testimony. I believe approximately page 12 or so of his testimony.

QUESTION: Thank you.

MR. COLLINS: Now the State claims that even though objectively we have coercive conduct that this Court should find that it was not coercive for the fact that Mr. Fulminante did not testify that he was in fear. Well, first of all, this argument ignores the fact that the burden of proof is on the State. Mr. Fulminante is not required to produce any evidence.

QUESTION: Is that a Federal rule, Mr. Collins?

MR. COLLINS: Yes, this Court has held that the burden of proof is indeed on the State.

QUESTION: To prove a statement by the defendant admissible?

MR. COLLINS: Well, to prove that the conduct was coercive the burden was on the State.

QUESTION: Well, but other -- to prove it was not coercive, the State certainly has no motive to proving that conduct was coercive.

MR. COLLINS: Oh, yes.

QUESTION: It's in --

MR. COLLINS: That is their burden to prove that it is not coercive. I'm sorry, that's correct.

QUESTION: Not coerced.

MR. COLLINS: Not coerced. Yes.

Now the State's argument also ignores this Court's holding in Lee v. Mississippi in which the defendant denied confessing, but the Court still held that the confession was coerced. This Court held to do otherwise would be a denial of due process.

And the main flaw with the State's argument is it ignores the facts themselves. There was no reason for Sarivola to approach Mr. Fulminante, tell him his life was in danger, offer protection unless he was trying to obtain a confession.

Indeed, you should consider the relationship that Sarivola had with Ticano because of the informant relationship. Sarivola had the motive, intent, and certainly the plan to obtain a confession. It was not an accident or a mere coincidence, as the State claims, that Mr. Sarivola just mentioned the fact of Mr. Fulminante's life being in danger and the fact that he needed protection.

And there's no conceivable reason in this case why Mr. Fulminante would have continually denied any involvement in this murder for over a year and why he had denied for weeks any involvement to Mr. Sarivola despite constant questioning. There is only one conceivable reason why Mr. Fulminante confessed and that be -- and that was because he was in fear.

And indeed an order to avoid torture or death any person, whether innocent or guilty, in Mr. Fulminante's situation would have confessed. As the Arizona Supreme Court correctly held, quote, "this is a coerced confession in every sense of the word," end quote. The framers of our Constitution would never have allowed the use of this coerced confession. They certainly would not have done so merely to save the State of Arizona the inconvenience of giving Mr. Fulminante a fair trial. There has been no change in our society that today compels us to abandon one of our most fundamental protections under the Bill of Rights.

If there are no further questions, I will sit down.

QUESTION: Thank you, Mr. Collins.

Mrs. Jarrett, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF BARBARA M. JARRETT ON BEHALF OF THE PETITIONER

MRS. JARRETT: Thank you, Your Honor.

Just briefly and I would direct the Court to page 63 of the joint appendix -- excuse me, page 83 of the joint appendix is the trial testimony of Anthony Sarivola in which he testifies that after he and the defendant are walking on the track and after the defendant, Fulminante, has been receiving rough treatment, Sarivola tells him, you have to tell me about it in order for me to give you any help. That is the sum total of this promise of protection, the implied promise of protection which Fulminante claims was so incredibly coercive.

QUESTION: Well, what about the language that the respondent here relies on and perhaps the Arizona -- that you -- telling him his life was in danger?

MRS. JARRETT: Your Honor, that is not reflected any place in the record that I am aware of. The only reference --

QUESTION: There was no statement by Sarivola to Fulminante that his life was in danger?

MRS. JARRETT: No, not as reflected in Sarivola's testimony. There is one reference in the record to that, but it was made during oral argument on the voluntariness motion.

QUESTION: By a, a oral argument or by a lawyer?

MRS. JARRETT: Yes, the prosecutor did indicate he was paraphrase something of Sarivola's and paraphrased it in that manner, but it is the State's position that it was not any kind of concession. He may have misspoke himself about that.

QUESTION: At any rate, there's nothing in the record that supports the claim that Sarivola told Fulminante that his life was in danger? There's nothing in the testimony?

MRS. JARRETT: Nothing in the testimony, Your Honor, either the stipulated statement of facts or in the Sarivolas' testimony.

QUESTION: But what do you understand the testimony you called our attention to mean? You have to tell me about it for me to give you any help. What does that mean?

MRS. JARRETT: It means that if Fulminante needs help from the other prisoners who are giving him the rough time, then he can call on Sarivola. But there's no indication, Your Honor, that this rough time that Fulminante was receiving was in fact any sort of physical thing that was being done to him. There's no indication that other than perhaps ostracizing him and ignoring him that the other prisoners are doing anything to him.

QUESTION: Do you think that's what they mean by a rough time in prison? They call you names?

(Laughter.)

MRS. JARRETT: Well, Your Honor, there's nothing in the record to indicate otherwise in this case, and it's certainly did not deter Fulminante from taking his evening stroll around the track with his friend Sarivola, so --

QUESTION: With his friend Sarivola?

MRS. JARRETT: That is correct, Your Honor. If he had truly been in danger, he would have perhaps been seeking help from prison authorities.

QUESTION: I don't know. Do you think that if you had the choice between going into isolation or walking around freely with your friend Sarivola, you'd say I'd rather be in isolation?

MRS. JARRETT: Well, that's a choice he had to make. And I think that's a very good point, Your Honor. He did have that choice.

QUESTION: Right.

MRS. JARRETT: And as defense counsel has --

QUESTION: I would think if Sarivola is -- I don't know if -- the mystery to me is how big was this guy anyway? But anyway --

(Laughter.)

QUESTION: -- he apparently felt perfectly safe when he was with Sarivola. And then I don't understand why you say he should have run and said -- asked the warden to put him in isolation if he's already got all the protection he needs?

MRS. JARRETT: Well, Your Honor, I'm saying that he had a choice if he's -- to a -- he could have continued to deny that he committed this crime.

QUESTION: Right.

MRS. JARRETT: He's not compelled to confess to this. He had the choice. Sarivola is saying, tell me what happened and I'll protect you, but if you don't tell me, there was no threat that anything would be done to him, that he would be in any danger from Sarivola.

CHIEF JUSTICE REHNQUIST: Thank you, Mrs. Jarrett.

The case is submitted.

MRS. JARRETT: Thank you, Your Honor.

(Whereupon, at 1:59 p.m., the case in the above-entitled matter was submitted.)