/audio/cases/1975/74-676_19751007-argument.mp3 ./rendered/74-676_19751007.xml Warren E. Burger Dunklin Sullivan Unknown Speaker Byron R. White There were 2 matches for "Mr. Justice White". Ben L. Aderholt William H. Rehnquist Harry A. Blackmun Thurgood Marshall There were 2 matches for "Mr. Justice Marshall". Potter Stewart Estelle v. Williams
Argument of Dunklin Sullivan We will hear arguments next in Estelle against Williams, 74-676. Mr. Sullivan, you may proceed whenever you are ready. Mr. Chief Justice and may it please the Court. I am the Assistant Attorney General from Texas and I represent the petitioner in this case, W.J. Estelle, the Director of the Texas Department of Corrections. We are here on this case on a petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit. The question involved in this case is whether a defendant’s trial in jail clothing is so inherently prejudicial that it destroys his presumption of innocence and therefore denies him a fair trial. The respondent in this case Harry Lee Williams was convicted by a jury of assault with intent to murder with malice in November of 1970 in Houston and was assessed by the trial judge, his punishment confinement for ten years in the Texas Department of Corrections. The Court of Criminal Appeals of Texas affirmed this conviction on direct appeal. The Federal District Court below then held an evidentiary hearing in a Federal Habeas Corpus Case and denied the respondent relief holding that while trial in jail clothing was inherently prejudicial. The evidence of his guilt was so overwhelming. The trial in jail clothing was harmless error. United States Court of Appeals for the Fifth Circuit reversed this holding and affirming again that trial in jail clothe is inherently prejudicial but they found that harmless error was not available in this particular -- the state of circumstances. And although the Fifth Circuit had held in the Hernandez case 1971 for the first time specifically stating that trial in jail clothing was inherently prejudicial. In the Williams case they held for the first time that the decision was to be given retroactive application. Our contention is that the United States constitution while it guarantees a fair trial does not guarantee a perfect trial. And we contend that trying a man in jail clothing is not so fundamentally unfair to destroy the presumption of innocence and deny a man a fair trial. A juror is aware or most jurors are, that defendants are arrested and there are kept in the jail prior to trial. And when a defendant is brought into the Court room in jail clothing that the jurors are not so surprised or shocked. Do you have bail in Texas? Yes, your Honor, we do. (Inaudible) comes to ask and stand in jail, is that what you said? Yes sir. What do you mean by that? Well, I mean the ones that are not able to be released on a bail would be brought in in jail clothes. (Inaudible) Yes sir. (Inaudible) They have to wear the jail clothes. (Inaudible) Yes sir. Mr. Sullivan what kind of jail clothes were they? Are they all striped-- No your Honor. They were not striped, most of the ones were, I cannot describe -- What do you mean, (Inaudible)? It was a white T-shirt and Harris County Jail stencil across the back and pair of pants with the Harris County Jail, maybe stencil down, one side of the pants. No striped clothes. We will resume there after lunch. Mr. Sullivan you may resume your argument. Thank you your Honor. I believe the last thing we talked about was Judge Blackmun had asked the attire of the defendants who were brought into the Court room and I would like to say that they did not have on, the striped uniform with the little striped head. It was a pair of white coveralls and most cases with Harris County Jail stenciled across at the back of the uniform and sometimes down at the leg of one of the pair of the trousers they had on. I would also like to point out to the Court that there were none of these defendants as far as I can determine that were compelled to go to trial in the jail clothes they had on. The reason they were tried was because the attorney raised no objection to the trial judge asking that they be tried in the any other type of clothing and the clothes they had on. And it is our position that being tried in jail clothing is not anymore prejudicial to the defendant and then bring to the jury of the indictment or under -- or agreeing to the jury of prior convictions alleged in the indictment for enhancement of the State, habitual criminal statutes. Mr. Sullivan did Judge Love give any instructions about prison garb to the jury at all? No sir, he did not. However, the prosecuting attorney on the board of the whole jury panel did, so to speak asked and the jurors if the fact that the defendant was in jail clothing would have any kind of effect on. And none of the jurors posed an objection and the defense attorney did the same thing. He said the fact that this man sitting over here with the jail clothes on, do they have any effect on and again none of the jurors expressed otherwise. (inaudible) Mr. Williams had any personal clothes that were taken from him at the time of his incarceration? Yes sir, he says that he did in the Federal Habeas Hearing. He said he had the clothes on when he was arrested and that he had asked somebody at the Rehabilitation Center told him that he wanted to have these clothe when he went to State Court trial. Is it your position that personal clothes might be more offensive in the eyes of the jury than prison garb might be. No sir. It really is, to be honest. I just do not think that it makes that much of an impression. And we have both sides and testimony here from the jurors in the Federal Habeas Hearing and I wish they have responded that they really did not remember what type of clothing, the defendant had on. And it just did not make that much of an impression on. One of the Courts below commented that it was the preference of some defense attorneys to have their clients tried in prison clothes to give the impression that he had already served some time, so why give him a lot more than that? Yes sir. That is exactly correct and of course in this case, you could almost say that the defensive counsel, all he asked the perspective of jurors as if the bail is okay with them as if it would not harm them in any way. He can send it to have this man tried in these prison clothes. And there is a Fifth Circuit case where the defense attorney did testify that he wanted this man tried in jail garb because he thought he would make a sympathetic impression on the jury. So -- As I understand it the Fifth Circuit has explicitly cut out an exception from their so-called per se rule for that? Yes sir, that is true. Is that correct? If you can get an attorney to testify that he wants his man tried in jail clothes because he thought it would make the jury be in sympathy and that there is an exception. Well, I suppose after this decision of the Fifth Circuit in any case where there was not a request that he would be tried in civilian clothes and there he would assume that he and his counsel were satisfied. They are even preferred that he would be tried in jail attires, is that not correct? Yes sir. And that is the thing that bothers me about the Fifth Circuit holding in this case like now, in the Hernandez case and we thought our motion for rehearing that say it that the defendant has got to make an objection. He is got to make the trial judge aware that he did not want to be tried in jail clothes. And then they started sort of under cutting that decision and now they say, well in Harris County everybody was tried in jail clothes and so the fact that the lawyer did not object is not waiver that right because the lawyers testified, a lot of them did. They did not think they are being used and objected because everybody was being tried and the objection would be denied. It would not be substantial objection. (Voice overlap) What is your position that if the defendant asks to be tried in civilian clothes that he is entitled to it. Yes sir. I think under, that would the best thing as far as -- How about a constitutionally, would he, assuming he requested to be tried in his civilian clothes, and is turned down and he is convicted. Will his conviction stand under your view of the Constitution? Under my view then I think that he has to show that he was harmed, substantially harmed by being tried. So you would not have a per se rule even in that situation. You would not resume any harm? No sir, unless he was able to specifically show harm. When you answered Justice White’s question about a request to be tried in street clothes. Do you mean a request to the trial judge? Yes sir. To the trial judge because in Habeas Hearings of course the petitioner will say, I asked somebody from the Rehabilitation Center and to hold over time and of course he cannot remember who it was and it is pretty hard to find out who he was talking about, it puts the State in a hard position to rebut his testimony. Well, even if he is perfectly accurate in his testimony, I suppose asking somebody at the Rehabilitation Center isn’t the same thing as calling it to the attention of the judge who is responsible for conducting the trial? Yes your Honor. That is my position that it should be brought to the attention of the trial judge. In fact in this very case here we have a certificate from the Trial Judge and he stated that if he had been asked or requested for Williams to be tried in civilian clothes he would have allowed but their request and— Mr. Sullivan, how was the prisoner -- he was harmed by being tried in the prison garb? Well your Honor, I think in one of the Tenth Circuit cases, they proved he was harmed when the prosecutor kept referring to him as Manson over here with the jail clothes on he was just like all the rest of them. And they seemed to infer from that the jury might— Well that sounds to me like prosecutorial misconduct. How otherwise does he prove it? IF no one says anything about it and there he sits and he is convicted. How do we know what the jury asserted this? Well, perhaps by the length of the term of sentence, he got. There was an Oklahoma case where the maximum punishment was seven years and the man objected was tried in jail clothes; he got a five year sentence. Was that a jury sentencing arrangement? Yes sir, I believe so. And that is in your State, the jury sentence that does it? In your State, Texas, the jury imposes or fixes the sentences, does it not? Yes sir. But in this particular case the trial judge assessed it. In the Williams case the defendant has the choice either the jury can asses the punishment or else the trial judge can. In this case he elected to have a trial judge asses punishment. The trial judge assessed him ten years, the maximum was 25 years. Mr. Sullivan why does Texas tried him in jury clothes? And, well your Honor we have not tried him since the Hernandez decision in '71. Up until that time the only reason I have is that that just never occurred to him that it was inherently unfair. It used to be the fashion to do it this way. Yes sir. And the Harris County and some other Counties had a large number of defendants. I suppose because allowed the defense when they were arrested, maybe their clothes they had on were, that they did not think that it might make a very good impression and they thought perhaps they would look better the jury and coveralls that was starched and it and -- This is why I asked before as to whether it might not be possible to be less offensive for the defendant to be in issued garments rather than in his own. One can imagine that certain types of dress would not be very welcome in Harris County or any other County. I am trying -- what I am trying to get at is what the interest of the State is in trying a man in prison clothes. Well your Honor, really I do not think, like I said, it was, that the State, you do not have much I has formed the impression one way or another. That they just assumed that it was okay unless the defendant raised an objection to it. Now, if he objects it, the trial judge and they would allow him to get some civilian clothing from somewhere. If he did not object they assumed it was okay. (Inaudible) or it is the part of the State's interest to prevent this decision from being applied to everyone who has ever been tried in Texas and who is still in jail? No sir. Our main interest is just to keep it from being applied retroactive. Well, that is what I mean. Right. Well, when was this tried? The William's case was tried in 1970. 1970? Yes sir. And this was applied retroactively then (Inaudible) Yes sir. Is this what you mean, it was applied retroactively in the sense that the Fifth Circuit had already decided the case, Hernandez? No sir. Hernandez did not say if it was retro— (Inaudible) was this the first case that— No sir. Hernandez was the first case. Well, was this the first case that announced this particular rule? Of retroactivity? Would you think this is a retroactivity case, is it? Yes. That is what they say in the Williams case, they say, you know we hold that now it is going to be applied retroactive. (Inaudible) everyone that has never been tried is still in jail. Yes sir. Of course our concern is, is if it is given retroactive application we have got, you know all the people in the penitentiary that were convicted on the recite of this statutes. If they can just allege and knock out one prior conviction because of being tried in jail clothes they would be entitled to be released. Why do say Williams is being applied retroactively? Because the Fifth Circuit held it was. Right. That maybe what the Fifth Circuit said. But in this case, is it applied retroactively? Yes sir. I suppose so because the— Isn’t this the first case that ever announced this particular rule? Mr. Sullivan, the Fifth Circuit in Brooks against Texas as I recall, said trial in prison garb is inherently unfair. That is in 1967. Yes Sir. Hernandez was in 1971 and the trial of Williams was in 1970. So that in 1970, CA5 by dictum that held or had said that trial in prison garb is inherently unfair, that is a sequence isn’t it? That is in the Brooks case you are talking— Yes. Yes. They had said. Of course, the Brook's case was disposed of mainly because of ineffective assistance of an attorney in that case. And they did say that trial in prison garb is inherently unfair but that was just at the conclusion out of of a lot of other things that the attorney did not do. In fact there was a Federal judge in Houston that in 1970 some three years after the Brooks decision, they decided that the Brook's decision really did not stand for that proposition. And he said, it was alright to try a defendant in jail clothing, it was not inherently un-prejudicial. So -- (Inaudible) was the first case that said that conviction in prison clothes cannot be upheld even though the defendant did not request being tried in civilian clothes. Yes sir, I suppose. Of course it, in the Hernandez case, the defense attorney made no objection either. He testified the Federal Habeas Hearing that he did not object because he felt that it would be that everybody was being tried and that he thought it would be a useless objection and when Hernandez went up on appeal, Fifth Circuit reversed that saying that for the first time, actually that trial in prison clothes is inherently prejudicial. And— So what, in this case Williams did not go any farther than prior cases (Inaudible) Except, of course specifically holding it was retroactive. Because we had argued before that he was not and there was another Fifth Circuit case, Goodspeed I believe in which, if one judge said he thought that it ought to be applied retroactively but the other two said, but we are presenting with that chip, we are not going to make that determination. But in the Williams case, they definitely said it was retroactive. So -- and of course, it is for this reason that although we do not think it is inherently prejudicial we have not tried anybody in jail clothes since Hernandez in '71 and we would ask this Court to hold that the Williams case should not be applied retrospectively. In any event, not any trial before Hernandez and Hernandez was decided when? In 71, 1971. (voice overlapped) any trials before 1971? Yes your Honor. You also asked us to hold that it is not constitutionally affirmed that he did try a person in prison garb, right? Yes sir. So that is true, but of course I recognize there is a possibility of unfairness here and- (Inaudible) And you are trying to be fair to the defendant of the State. I suppose that there is a possibility that a defendant might suffer some collateral effects. So if this Court would hold it, you know, do not do it anymore. Well, we would have no real quarrel of that but especially not to hold it retroactive. Is this the trial judge who, when some prisoner objected allowing them, the judge allow (ph) them the suit of his own clothes. Yes your Honor. They tried it. Yes sir. And there is a case on the books in the Court of Criminal Appeals, another trial judge had did the same thing. The defendant did not have any clothes to wear, his attorney objected and the judge went back and handed also the clothes (Inaudible). The final thing I would like to say is to why I do not particularly feel it is inherently prejudicial, that there is some really finding in the Attorney General Harris County Bar Association. There was never, there were very few objections made by any of those lawyers to defendants being tried in these jail clothing. And I argued that the reason they did not object was because they just attached no significance to them. They just did not think it made that much of a difference. And it is hard for me to believe that an attorney who really thinks that his client is going to be denied a fair trial by being tried in jail clothes, would you stand by and not make an objection because he thought it would be denied because, of course, you never know until you make an objection it would be denied or not. (Inaudible) in Texas, do State judges wear robes? Yes sir. Did they in 1970? Yes sir. If they had not do you think it would made a difference in the fairness of the trial? At one time they did not, am I not correct on that? Yes sir. At one time they did not. I do not know exactly the year they started to wear in robes. Do I understand that the Texas or at least Harris Country changed its way of doing things after the Hernandez decision in 1971? Yes sir. That is correct. So now, since 1971 even without a request from the defendant civilian clothes are provided? Yes sir. They are provided. I think the only way you can get tried in jail clothes, now if you say, I want to be tried in jail clothes. And that has been true since 1971? Since 1971. Since the Hernandez decision, is that true throughout Texas or only in Harris County? I think throughout the State, your Honor. That is -- since Hernandez has come down, we do not do it anymore. And before Hernandez was this problem peculiar to Harris County or was it general throughout Texas? It was mainly Harris County. There was some out of – at Tarrant County where Fort Worth is and at Dallas County it’s a – the larger Counties man, they were covered from other some other smaller counties. (Inaudible) From some other smaller Counties in the State but not a whole lot. Mostly from? From Harris County in Houston. Houston is Harris County and— Yes sir. That has been changed throughout the State since 1971. Yes sir since Hernandez. Now routinely, defendants are tried in civilian clothes, the only way they would be tried in jail clothes would be if they made an affirmative request. Yes sir. That is my understanding. Very well Mr. Sullivan. Mr. Aderholt.
Argument of Ben L. Aderholt Mr. Chief Justice, May it please the court. Let me respond first to some of the questions that were presented to Mr. Sullivan and then I will present on the rest of the argument. The identity of jail clothes in the Texas, I agree with Mr. Sullivan. Is as he has described it, I would add that the penitentiary garb and the jail garb, I believe the testimony show is the same. Same white coveralls, possibly with a different lettering on the garment showing whether it is a jail or the Department of Corrections. In addition to that the defendant has brought in shower tongs. In what? Shower tongs where the feet slip through are kind of a crows foot. The defendants were all tried. Would you mind stating what is that called? Shower tongs, that is what I called them, it is what I believe the defendant called them in the Habeas Corpus Hearing where its feet – sandals – where his feet are bare and he slips one of the tongs through his toe. This was in November, a cold month, and I think this would have been sort of been something that the jury would have immediately seen. The second— What if they had seen it? What is unfair about it? I think it carries with it all kinds of negative inferences. The same could then -- if the defendant had come in in a Rabbi’s clothing or Surgeons whites rather that prison white, I think that the jury make short hand assessment of the defendant especially in this case where the defendant did not take the stand. What would that be? No, he’s been indicted and it is probably no secret to most jurors that criminal defendants who cannot make bail, spend time at jail between the time of their arraignment in trial but what does this add to that? I am not sure that the jury, Mr. Justice Rehnquist, knows or should know whether the defendant cannot make bail. How would it prejudice the jury in determining the issues in this criminal offense of which he is charged to know that he had not been able to make bail or to know that he had been able to make bail. I think precisely because we are not able to measure what the jury thinks of a man who comes in dressed like this. In addition to that I believe – Now wait a minute. You say because we do not know therefore we decided it is unconstitutional, I would think that the rule was just the opposite but there is a presumption of constitutionality. And if you do not know, that is a reason for saying there is no constitutional affirmity. One of the Lower Courts stated that the prosecutor could not have gotten administrable prior convictions or other charges brought against the defendant. He also stated that the jury might have inferred or probably did infer from the appearance of the defendant that he had other charges pending or was a convicted criminal and was too dangerous to release. Why would it be any sort of a permissible inference on the jury’s part that he had prior convictions from seeing him in prison garb? Because he has jail printed on his chest. And because he is not a free man he is brought in by the sheriff and he— But he is in the custody of the sheriff during the trial whether he has got prison garb on him or not, isn’t he? But he does not have the choice of putting on clothes that would be -- make him look like an ordinary average jury where the defendant that has presumption and dignity and the self-respect of a free man. What if his counsel has consented on the record to being tried in jail clothing because he wants to be tried in jail clothing? Does the judge then require to explain to the jury that you must draw no inferences from this because the defendant affirmatively wishes to be tried in jail clothing. That would seem to follow from your colloquy with Justice Rehnquist. In view of the long line of cases, I think a trial judge might consider something in his charge just to protect the integrity of the trial. On the other hand, I believe that the Fifth Circuit in Garcia which carved out this exception in which he uses as a trial tactic to gain sympathy from the jury. What do you suggest, the jury infers when there has been a trial in jail clothing by request. If nothing has explained to them? Don’t they draw the same inferences that the would in any other case. If I understand your correction, your question and statement correctly, Mr. Chief Justice I believe that they would draw the same inference. I would think— That is just as harmful or just as beneficial depending on the point of view as in the case where he has not the consented, is it not? I would never consider to be a beneficial thing. Some lawyers may believe that it would be beneficial to gain sympathy because he had been in jail and could not get out and prepare his defense, that he had been incarcerated long enough for this kind of offense and therefore no longer. But then let me go back to the same question I asked your opponent. Suppose this man’s regular clothing were rather hippy type and he showed up in sandals in December in Harris County and insisted on wearing those clothes, might he not be worse off in the eyes of a particular jury than to be in a clean --prison garb. While you’re answering that, you and your opponents say different things about where Harris County Jail is. You said it was on his chest, your opponent said it was on the back. What does the record show? I believe the record does show it to be on his back. The hippy clothes question, Mr. Justice Blackmun, I cannot imagine any lawyer not being extremely cautious in trying and dressing his defendant for a trial before an average jury in Texas especially and I think anywhere. They objective would be to emulate or give a mirror image to the jury as restated in an Article in the practical lawyer by a prosecutor in Ohio and he takes our position that it is extremely unfair. (Inaudible) I think that is the distinction, Mr. Justice (voice overlap) You do not suggest he was compelled to do it here, do you? Yes we do. I thought he made no objection here. He made no objection. The record shows that he asked the captain and he named the captain on the trial in Habeas Corpus who refused to let him put on a suit that the man had pressed and waiting for him at the Rehabilitation Center. In addition to that, the Rehabilitation Center where the defendants live are some miles from the trial location in Houston, Texas. At that time the accused requested a suit that he had ready and waiting for him and this was denied. This was refused. But he did not renew that request to the trial judge who was presiding over the trial, did he? No he did not. Well isn’t he the – isn’t that judge the person who has the responsibility for the conduct of the trial? Yes your Honor, I think he should have made an objection. This was an inept trial by the Defense Councilor if I could say so. Well are you -- now are you arguing in effect of assistance of counsel? We argued that in the Fifth Circuit. However, we felt the stronger case was on previous presidential decisions. I would like to add to that that the trial judge appointed a lawyer to represent this man earlier in 1970. The main thing is that the that the defendant was indigent and the Trial Court allowed this trial to proceed with the defendant in jail clothes in the face of some 19 decisions before December of 1970 in 15 different Courts including the Eastern District of Louisiana. The Fifth Circuit in Brooks versus Texas, and some nine or ten Supreme Court decisions in other States. I believe that it was well established law, a rule and by the time that the defendant was tried there were nine Supreme Court decisions in Florida, Colorado, Alabama, Arkansas, Pennsylvania, Michigan -- Whether a trial judge is suppose to read through all those by himself without ever having called to his attention by Defense Council? No your Honor. But I do believe that the sheriff is the one who compelled the accused to wear these clothes. The State did this. Well, but is the State simply -- is the State one entity in this sense that if you make a complaint to a Captain in the Sheriff’s office some miles away from the Court House, it is the same as having protested to the Judge to whom the State has entrusted responsibility for the trial? He should have made an objection to the Court. He did not -- the decisions do not require an objection in— What decisions are you talking about the decisions of this Court? No your Honor. I am talking about Lower Courts decision. Why should an objection not be required here where, whatever maybe the case with perhaps more fundamental rights, if this is a constitutional right, if some lawyers like to have their clients tried in jail garb, as the record here indicates and others apparently feel it is prejudicial, why should we not at least require that someone who does not want to be tried that way have called the objection, the attention of the trial judge? With the exception of the fundamental nature that you discussed, I think that an objection should be lodged but there are those cases where as in this case, as in Hernandez as in many others where the circumstances are such where any objection is chilled. The lawyer testified in the Habeas Corpus Hearing that he had made an objection in the Trial Court in that County before and it was denied. And now you say – you say chilled. I certainly, in 16 years of practice I would not only make an objection before different trial judge, I would make the same objection time and again before the same trial judge. And I never felt he was going to cut my head off if I did it, so long as I was courteous and respectful. To say that you have made an objection before another trial judge and it was denied does not strike me as any reason at all why you should not make an objection before this trial judge. In this connection do you accept Judge Love’s exhibit to -- well, the exhibit which is Judge Love’s affidavit to the effect that on numerous occasions during that period of time since 1958. I have granted request by defendants or their attorneys for them to be allowed to obtain civilian clothes to wear at their trials. I have never compelled a defendant to go to trial in jail clothes whenever his attorney requests otherwise. And he goes on to say that had this request been made of me, I would have granted such request and permitted the defendant to tried in civilian clothing. Do you accept this as a statement of fact in this case or do you not? No, I do not Mr. Justice Blackmun. The trial judge, I do not believe would do it – falsify such an affidavit. On the other hand, I do not know who prepared the affidavit, it was brought the day of trial, I strenuously objected that I did not have an opportunity to cross examine that statement. I had had their positions in the case on these very issues showing the practice of that Trial Court. Every case tried in his Court on an non-bailed defendant was tried in prison garb. You mean Judge Love’s Court not just the -- (Inaudible) Judge Love’s Court. Every defendant, there was no exception. And this affidavit showed up and trial now objected to Judge Buhe (ph). You mean on the Habeas Corpus Hearing? On the Habeas Corpus Hearing, yes your Honor that I did not have an opportunity to cross examine that statement because I believe the facts to be otherwise. What year did you get into this case? End of -- early 1971, I believe you Honor. Is that part of appointment? It was by appointment of of Judge Love. Had you taken Judge Love’s deposition in the Habeas case? No. I took the deposition of his clerk and the sheriff and the – every single lawyer who tried the case where the defendant was tried in prison garb. And that was introduced in the evidence of the case of a Habeas Corpus Hearing. Was that a hold to -- you suggested that that you had argued at one point in this controversy that there was ineffective assistance of counsel. Are you referring that to the fact that counsel failed to object? I think that that was one of my grounds. Was the practice in Texas generally for lawyers to object when they thought the Court had made a ruling that was adverse to the client’s interest?
Rebuttal of Dunklin Sullivan Yes, of course, it is. Isn’t that that you not only make objection, you have to file a Bill of Exception in writing, is that still the law in Texas?
Rebuttal of Ben L. Aderholt I do not know Mr. Justice Marshall. I think though that if it is a fundamental error that there would be no objection required. But normally do not you file objection and a Bill of exception, both? I think it is wise unless the record reflects what you complaint of. CA5 I think in Hernandez, repeated what it said earlier that this error, constitutional or otherwise could be waived by failing to object. Are you suggesting that it was unnecessary for counsel to object in order to accomplish a waiver, is that right? Are you saying an objection is not necessary under any circumstances? I believe that the rule is presently in all jurisdictions with varying degrees that there is no objection required. I do believe the error – that the rule should be stated that its an error to try an accuse in prison garb unless he voluntarily waives a known right, reserves standard. And he waive it through his counsel, that is my point. Yes he may. Well can you— Can he waive it through his counsel? Yes he may. I certainly think he should be able to and could. Can you really bring yourself to say that this is the right not to be tried in prison garb, is you can equate with the right of counsel that was involved in Zerbst if we are talking about fundamental rights? That is (Inaudible) fair trial. I do not know that I can answer that question. I do believe that it is a fundamental nature to the fairness of a jury trial. I believe that the— What was the jury trial -- the right to trial by jury itself was held non-retroactive. Yes your Honor but I do not believe retroactivity even comes in to this case. I tried to persuade the Fifth Circuit not to discuss retroactivity. But why is it then in this case? Because we have 19 decisions before the case was even tried— Assuming Hernandez was a new departure however retroactivity is involved in this case. Yes because the Fifth Circuit made it so. But I do believe that they— Well Hernandez is the first time that ever suggests that it was putting it on a constitutional basis. No you Honor. I believe Brooks versus Texas— They just said fundamentally unfair? They said that it— Is it unfair? It was said it was inherently prejudicial. Well, I suppose the only reason that Fifth Circuit could upset a Texas conviction would be on constitutional basis, wouldn’t it. But we have four, five Federal Courts handing down decisions on the jail clothes case before Williams was tried in Harris County. Did they bind him on this Court? No. Well, then— But I was speaking in terms of retroactivity in connection to the constitutional right. The Fifth Circuit has clearly indicated that it was a fundamental— (Inaudible) Fundamental protection. One of the earlier statements was that the Fifth Circuit had laid down a per se rule in Hernandez and also in Williams and the way I read the case is that it is not a per se rule. And it is not a per se rule in any of the many and lengthy decisions across the country. In all of these cases it appears to that the question is whether or not a harmless error or whether it is harmless or not beyond a reasonable doubt. I would add that one element that I have not stressed is that all of these cases that we are discussing are a particular class of defendant. They, if I may say so generally have poor counsel. They generally are not protected as thoroughly as someone who is able to hire an attorney and get out of jail and defend himself. There further is no legitimate State interest in trying a defendant in jail clothes. It is simply an unnecessary influence on the jury. The prosecutor of Williams was brought by the government, by the State to testify in the Habeas Corpus Hearing and the prosecutor in Judge Love’s Court stated that he encountered jurors who were hostile to defendants because they were brought in jail clothes. That was his own testimony. Any attorney who tries jury cases in Texas knows that jurors – it is almost impossible to convince them of the presumption of innocence. If defense rested after the defendant was brought in in an indictment read, many defendants would be in a great deal of trouble. If the defense stopped right there even though the presumption of innocence would apply to them. I believe that putting a defendant in this kind of a garb is simply unnecessary, it gives jury negative inferences and in this particular case where the defendant does not take the stand the jury must make its assessment. As I understand you, do you agree that this judge is the same judge who lent a suit of clothing to a defendant who objected to be tried in jail clothes? I meant to cover that. Mr. Chief Justice, the affidavit or the exhibit that was referred to earlier did not, I believe state that quite clearly. The judge did say he had lent a suit of civilian clothes to a defendant. Again this was not subject to my cross examination and we do not know when he is talking about. I think that the Judge was very sensitive at this issue because Hernandez had been handed down already. The practice was -- The affidavit says that this happened on several occasions when he had people that brought the clothing in and they were permitted to change into civilian clothes in the jury room. But we do not know when -- Does not that suggest an objection has been made this Judge would promptly granted to what you say is required? That might be a fair conclusion to be drawn from that. I do not accept it though because it never happened. All the defendants were tried in jail clothes. We do not know whether the objections – No. We are talking about this case. You conceived that no objection was made. And I took that you agreed that judge had on prior cases supplied clothing. Did you agree? No. I did not Mr. Chief Justice. I stated that we did not know very much about those occasions whether they occurred before Williams trial or after Williams trial. And I do not know of any incidence where this judge has done this. How could you -- in the Hernandez case on rehearing the Fifth Circuit said this, appellees petitioned for a hearing states that surely some burden must be put onto the defendant and his attorney to make note that he desires to be tried in civilian clothes before the State can be held accountable for his being tried in jail clothes. And the Court said, we agree. And our opinion is not the contrary. The defendant may not remain silent and willingly go to trial in prison garb and there after claim error. Now, is that the rule that was applied in the case before us? It was. The Fifth Circuit followed Brooks. Its earlier decision in Brooks versus Texas in 1967 and made a very strong policy statement. And also held in Hernandez versus Texas, a very strong case and it looked like it was a per se rule. I think on rehearing it to a small step back and stated all of the Chapman and Harrington tests should come into play. That isn’t what they said on the hearing. That was in the main opinion. Here they said just what I just said. This is what I read you. It said, we agree, a defendant may not remain silent and willingly go to trial in prison garb. But Hernandez made no objection your Honor. Well I know but they went on to explain why you could not in Hernandez, why you could not stick him with a waiver because he thought it might – he did not think he had any chance whatsoever to win such a motion. Well that was trial counsel’s testimony in the Habeas Corpus in this case— Well I know, but you just told us that there had been so many – you just told us what the rule was in Hernandez. That this is that – it was not a new rule at all and any fool ought to know that you should not try a fellow in prison garb. Then the rule of -- since Brooks and all these other decisions in all those cases. So why would not you oblige the attorney to speak up? Because Hernandez made no objection. The Court said we do not decide that is not a voluntary waiver. I know. We are not bound by Hernandez, that is a Fifth Circuit. But even on Hernandez basis, they have some very special reason for saying there was no voluntarily waiver in Hernandez. That certainly – it does not seem to apply here. Your Honor, the facts in Hernandez and in Williams are practically identical. They must have had found some of the basis for reversal in light of Chief Justice White just read to you. I believe that their statement on motion for rehearing is that the defendant may not willingly go to trial and later claim error. However, there was no objection in Hernandez and so it must be taken to mean and within the meaning of the opinion that an objection is not required. Well, is this the key to it in this case? After quoting what Justice White has just read you from Hernandez, the Fifth Circuit went on to say waiver in the objection cannot be inferred merely from failure to object, if trial in a prison garb is customary and the jurisdiction like your position is that it was customary and that is what this Habeas record shows. You say that Judge Love’s affidavit does not really depict the actual practice, which you say in Judge Love’s Court was always to try in prison garb, is that right? Yes, your Honor. And then the Fifth Circuit goes on, it must be shown that the practice was not customary and might not be insisted upon or subject to or that the defendant hope to illicit sympathy by his appearance in such clothing. That precisely is my position and I believe that the Hernandez case when looked at on its motion rehearing is clear and is co-inscribed with the other Circuit – the other cases on point from 1938 on. Well, do you think trying of person in prison garb when he objects or even when does not object is an error that could be harmless? Do I believe that it could be ever be harmless? Yes. Could you hold it to be it harmless error? Oh, yes, I do. Let us assume a man requests to be tried in his civilian clothes was turned down, then they go to trial and he is convicted. And the State defends on the grounds that it was harmless error. I think that it could be harmless and I think that ought to be test that the rule ought to be and I believe is in all jurisdictions that it is an fundamental error to try an accused in prison garb unless he voluntarily waives the right and if the probable impact on the jury was harmless beyond a reasonable doubt. The per se rule is easier to apply but I believe that is the rule, as found in all the jurisdictions up to 1979. How do you determine whether it is harmless or not? That is. You can’t. (voice overlap) That is awfully broad. You can not examine the jurors. It was done in the Habeas Hearing that counsel just referred to and it should and could have been done in this case. They permitted inquiry of the jurors themselves? Yes your Honor. I think that the question should have been gone in to. Now the Hernandez decision and Williams decision and the Thomas decision, all Fifth Circuit decisions went to the test of harmless error on the angle of sufficiency of evidence. In Hernandez, the Court said that there was insufficient evidence. Inaudible) Is it the case in Texas that you may impeach a jury verdict by examine of the jurors? I think the question, the inquisition of the jury was whether or not they identified it as a prison uniform and whether or not it made any impact on. The Fifth Circuit said test of harmless error. As I understand it the the Thomas case does not go to the jurors impression about the prison –-about the clothing the defendant has worn but rather as to what the evidence of guilt was in the case and if it was so overwhelming that the Court can say with beyond a reasonable doubt that he would have been found guilty whatever what ever he was wearing or not wearing. Then they find it was harmless error. That is the Thomas case, isn’t it? It is and I believe that is the holding in all these jurisdictions of the cases that I have and I did not have an opportunity to go into my view of the sufficiency or insufficiency of the evidence on the question of whether or not the defendant was guilty of a assault with intent to murder with malice. The Court of Appeals goes into that at some way? It does at some length and the testimony is set out -- But my only question was whether the inquiry as to the harmlessness of the error was directed to the jury’s impression. There, the impressions the jury, the members of the jury drew from the clothing he was wearing or rather does it go to the evidence of guilt in the case and it does -- it is the latter to which the Courts have directed their inquiries and not in determining whether or not the error was harmless? It does Mr. Justice Stewart and it also however mentions the reason I bring this in that the defendant in order to win must prove that he was tried in an identifiable jail or prison garb. First of all? First to either -- But then that can still be harmless in the view of these Courts that have decided this case. Yes. All the Courts have determined the harmless error under Chapman to be one of the grounds to the sufficiency of the evidence. Beyond it then so that the Court can say beyond a reasonable doubt that however he might have been dressed at the time of his trial he would have been found guilty. Yes your Honor. That should be -- That isn’t the inquiry that was made from -- that has been made the juries in these situations. You just suggested you do ask jurors whether they notice the clothing. No your Honor. I believe that my answer was that there was one case that was brought up in the State's brief where jurors were questioned on the Habeas Corpus as to whether one they identified this as a prison garb and they said they did not. And secondly whether or not what was the impact I believe was the other inquiry. So that indicates that you -- that it has happened that at least once in these cases that you do inquire from the jurors of the impact of the clothing? Yes your Honor. I think the State could have subpoenaed those 12 jurors and asked them to defeat our claim. Or you could have been -- Or I could have but I think that the sufficiency of the evidence in this case was so poor to prove that he was guilty of defense with malice that we took – we chose not to bring the jurors in and that is a difficult thing to do is to bring jurors in. Mr. Aderholt, (Inaudible) you disagree with Justice Stewart that is the (Inaudible) the evidence we saw (Inaudible) No. I would not follow that logic. I do however believe that this has been many, many years of decision as held down by Lower Courts since 1938 that this is one of the tests to be used under Chapman and Harrington. That is in Chapman that was Mr. Justice Rehnquist is stirring the issues before the Court in Chapman and is suggesting by his question he – what was said in the dissenting opinion that I remember well. But Chapman decided that if a constitutional error existed in a case, a conviction nonetheless could be affirmed if the Court could say beyond a reasonable doubt that that error did not affect the verdict to guilt. But recognized exceptions amongst which were deprivations of the right to counsel. Whether or not that was rational, that is what the Court did in Chapman. Yes, and included within this concept of harmless error, I guess you would have to put in the two exceptions in the Fifth Circuit and other decisions of the Garcia exception where he uses a trial tactic and secondly the Henderson exception where the crime was committed in prison and it was impossible to keep it from the jury. I am at exceptions to the harmless error rule the – if you can show there has been a deprivation of counsel, if you can show there has been an involuntary confession then there is no – then there is no room do argue that the error was harmless. That is what Chapman holds. Those are exceptions. Thank you Mr. Aderholt. Do you have anything further Mr. Sullivan?
Rebuttal of Dunklin Sullivan No your Honor. Mr. Aderholt did you appear by appointment of the Court, our request as you did in the Fifth Circuit on Behalf of the Court. I thank you for your assistance to the Court and of course your assistance to your client.
Rebuttal of Ben L. Aderholt It’s been a great Honor. The case is submitted.