Cases by Issue - Prejudicial Statements or Evidence

Darden v. Wainwright - Oral Argument

Fri, 31 Aug 2012 18:30:31 +0000

Case:

Darden v. Wainwright

Media File:

85-5319_19860113-argument.mp3

Related Transcript:

85-5319_19860113-argument

Transcript:

ORAL ARGUMENT OF ROBERT A. HARPER, JR., ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Warren E. Burger: We will hear arguments next in Darden against Wainwright.

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

Robert A. Harper Jr: Thank you.

Mr. Chief Justice, and may it please the Court, the prosecutor's closing argument in the Willie Jasper Darden prosecution during the final summary has been variously described as bad, as unfair, as harmful, as prejudicial, as egregious, but there is one word only that is sufficient to describe this argument in this case, and that is reversal.

The question then arises as to why the case hasn't been reversed and why is it here.

And the simple answer is, the Eleventh Circuit has not and did not apply the appropriate standard announced in Caldwell versus Mississippi.

On the same date that the Darden case came down en banc from the Eleventh Circuit, July the 23rd, 1985, that court decided Tucker versus Kemp, Brooks v. Kemp, and William Tucker versus Kemp.

The Tucker case has been vacated and remanded under the Caldwell decision.

We raised Caldwell in the petition for rehearing which was denied... that opinion is found in the joint appendix at 395... when less than a majority of the court voted in favor of the petition for rehearing.

The Eleventh Circuit is squarely faced and apparently rejected the Caldwell standard, and we would submit that in view of the dissents, two dissents in the en banc opinion on the 27th of August, that a remand would be inaccurate, and that an outright reversal is required.

This argument is so bad it has been universally condemned.

It is so bad, as the District Judge noted, even the state has not even weakly asserted anything but that it is improper.

The reviewing courts, each and every one, starting with the Supreme Court of Florida, found that the prosecutor's remarks under ordinary circumstances would constitute a violation of the code of professional responsibility.

Two Justices of the Florida Supreme Court, former Chief Justices each, described the remarks, as vituperative personal remarks upon the accused and appeals to passions and prejudice.

The magistrate who heard the evidence at the evidentiary hearing below was

"convinced that the jury deliberation was substantially influenced by the prejudicial argument. "

The Eleventh... excuse me.

The United States District Judge who had a de novo hearing on the issue said no one even weakly suggested that the prosecutors' closing remarks were anything but improper.

The Eleventh Circuit said that anyone attempting a textbook illustration of a violation of the code of professional responsibility could not possibly improve upon the example provided by the prosecution during Darden's trial.

We submit that this case would be universally applauded by the organized bar, and no concept should be indulged to deflect from the fact that the sentencer in this capital case was diverted from his truthfinding function.

The purpose of the Code of Professional Responsibility is universally accepted by every practicing attorney and judge.

The purpose of the rules is to protect the due process rights to a fair trial.

These standards are objective, and we submit that these standards are the litmus against which this prosecutor's argument should be tested, and we submit that this test in the search for the ever elusive concept called justice would require that this trial, these proceedings be reversed.

Against this test, every reviewing court, all the parties in the litigation concede that the argument is improper.

The only problem is, the standard appropriate in this instance has not been applied.

The argument itself comprises 44 pages in which 27 improper arguments are interjected.

There are ten attacks on the credibility of the criminal justice system itself, attacks on the Department of Corrections, attacks on the parole people for turning this man loose, and the like, nine instances of personal opinion, two instances of bolstering the argument, two outright misstatements, one interjection of race, and one attack on specific... well, actually two attacks on specific rights.

In the order that they occur, the arguments start off with entreaties to the effect,

"It could have been you, members of the jury, who had been murdered. "

arguments that I am convinced--

Unidentified Justice: What is wrong with that sort of an argument, counsel?

I mean, the prosecutor has got to say something.

Robert A. Harper Jr: --Well, Your Honor, I think he does have to say something, but I think it has to be proper.

Unidentified Justice: Is there some constitutional standard of propriety that you see in our cases?

Robert A. Harper Jr: Yes, sir, particularly in a death case.

I think that there... the... when you inflame the passions of the jury and divert them from the issue at hand, be it guilt or be it punishment, and interject things like--

Unidentified Justice: You say, then, that the Fourteenth Amendment of the United States Constitution prohibits a prosecutor in a death case from saying to the jury, members of the jury, it might have been you who was killed?

Robert A. Harper Jr: --Well, that is just one of the first instances.

Unidentified Justice: But I take it, though, that is what you are saying.

Robert A. Harper Jr: That is one thing he said.

Yes, Your Honor.

And I--

Unidentified Justice: And you say it is unconstitutional for him to say that.

Robert A. Harper Jr: --What I am saying more particularly is unconstitutional is, there should be another defendant in this courtroom, but alas, I know of no charges to bring against--

Unidentified Justice: Well, but you started out ticking off your claims as to how this prosecutor had fallen short, and I thought the first one you gave was, he said to the members of the jury, this might have been you.

Now, surely you meant that to have a constitutional dimension, didn't you?

Robert A. Harper Jr: --Well, Your Honor, that golden rule argument, I was saying... what I have said was, there were 27 instances of misconduct.

Unidentified Justice: Well, how... you--

Robert A. Harper Jr: And not all of them maybe rise to the constitutional level.

I have some that I believe do as opposed to that one, and others that I think are stronger.

"The other defendant should be the Division of Corrections. "

I think, is stronger.

"I wish the persons responsible for him being on the public were in the doorway and shot instead of the victim, Mr. Turman. "

I think arguments like, He, Darden, is a prisoner.

"Mr. Turman... that unknown defendant, namely, the Department of Corrections, is criminally negligent. "

"And I will tell you this. "

"I will guarantee you that if I were in the same chair as Mr. Darden, I would lie between my teeth. "

me, the elected official of which probably a majority of that jury voted for.

And I think there are other arguments that get even worse.

"I have no contact with this case, but sometime it emotionally gets to me. "

"There is one person on trial, he, Willie Darden, and his keepers. "

I think those are the kinds of things that reach constitutional dimension, Your Honor.

And I think it goes further when he says that he, Darden, says he asked for a polygraph.

"Only an incompetent lawyer would allow him to take a polygraph. "

Mr. Goodwill, the defense lawyer,

"You didn't give my shells back. "

and these kind of conducts against this lawyer, slamming stuff around, berating in front of the jury, parading in front of the jury, putting the credibility of the office of the state attorney, an elected official under the constitution of the state of Florida, in issue time and time again.

"I believe Willie Darden is a murderer. "

"I will believe that the rest of my life. "

That kind of argument, I submit, Your Honor, rises to the level of a constitutional violation under any standard, and in particular the Caldwell standard, which was not addressed and has not been addressed by any reviewing court today.

Those are not the only instances of misconduct, however, and as I admit, there are more and more, and it builds up time and time and time again, and the thing...

"The Department of Corrections turned him loose on the public. "

"Can we expect them to stay in prison when they go there? "

"Can't we expect them to stay locked up once they get there? "

"He shouldn't be out of his cell unless he has a leash on him. "

These are the kind of things, Your Honor, that are not just isolated.

They are persistent time and time and time again.

"Yes, there is another defendant, but I regret I know of no charge to place upon him except the public condemnation. "

"Condemn them. "

"Condemn the Department of Corrections by putting Willie Jasper Darden in the electric chair. "

is what that prosecutor is saying.

"He is a prisoner. "

"He is supposed to be. "

"Mr. Turman is dead because of that unknown defendant, the Department of Corrections. "

"We don't have in the courtroom allow it. "

"We, the Department of Corrections, is criminally negligent for allowing it. "

Those kind of arguments, I submit, Your Honor, rise to constitutional question.

It is a direct attack on the reliability of the criminal justice system itself.

Here is the executive branch challenging another branch of the government, making attacks, personal attacks on counsel in the courtroom, and then going through things like, well, counsel is going to say... try the sheriff's department.

Well, he has got notes that I gave years ago, and I used to be a defense lawyer myself, nine years.

And that is not the only thing, he asked.

And I think the biggest thing about the argument is, he gave one argument... they gave one argument, 44 pages, 27 incidences of misconduct, and during that time he says,

"I guarantee you I will ask for death. "

"There is no question about it. "

The second part of the trial,

"I will request you to impose the death penalty. "

"I will ask you to advise the judge. "

"That is the only way I know he is not going to get out on the public. "

"That is the only way I know. "

"It is the only way I can be sure. "

"It is the only way anybody can be sure, because the people that turned him loose. "

and those arguments, I submit to you, rise to a constitutional question.

Unidentified Justice: --Your point is that that is an unconstitutional... that argument rises to the level of a constitutional standard.

Robert A. Harper Jr: I am sorry, sir?

Unidentified Justice: The argument that he shouldn't have been let out of the prison before, and that if he is let out again, he might be out on the public, do you say that is an improper, impermissible argument constitutionally?

Robert A. Harper Jr: Your Honor, future dangerousness is a different issue from what I am trying to say is overall, considering the total circumstances of a racially charged courtroom setting in a rural area of mid-Florida in 1973, where the prosecutor entreats the jury during voir dire that, can you try Willie Darden as if he was white, then saying that their particular argument, that, you know, there are particular words that are permissible, but they are included in the context of impermissible argument.

I think future dangerousness is a permissible argument, but to say that the only way I know that you can protect the public is to... and the negligent people that turned him loose, to make sure it doesn't happen again, I don't think that is proper.

Unidentified Justice: Constitutionally impermissible?

That is my question.

Robert A. Harper Jr: Your Honor--

Unidentified Justice: Improper may be one thing--

Robert A. Harper Jr: --Yes.

Unidentified Justice: --as a matter of good taste.

Is it constitutionally impermissible to point those things out?

Robert A. Harper Jr: I think there are certain segments of the argument that pass constitutional muster, but considering the argument as a whole, the calculated and designed effect it had to inflame the jury, it was a model in its total context.

It was designed and did, I believe, violate every single article of the Code of Professional Responsibility.

Unidentified Justice: When was this crime committed?

Robert A. Harper Jr: This crime was committed on September the 8th, 1973.

Unidentified Justice: 1973.

Robert A. Harper Jr: Yes, sir.

Unidentified Justice: So you think it is constitutionally impermissible for a lawyer in the courtroom to criticize the system of justice that lets this kind of a matter run that long?

Constitutionally impermissible for a member of the executive branch, as you put it--

Robert A. Harper Jr: Yes, sir.

Unidentified Justice: --the prosecutor to be critical of the system of justice that takes 13 years to get something completed?

Robert A. Harper Jr: Your Honor, it wasn't 13 years old when he said that.

The trial, of course, was four months later from the crime.

The crime was committed on September the 8th, 1973.

The trial was January the 17th, 1974.

As far as this trial, this proceeding dragging on this long, if that is the question you are putting to me, Your Honor, my position is that I am sworn to defend a person's rights as long as he has those rights.

In this case, Willie Jasper Darden, he will not die because of these rights he has, and these rights we have been asserting the last eight years that I have been working on this case pro bono have been reevaluated at least three times by this Court.

All three issues we have filed have been reevaluated, and the only thing that has changed in Willie Darden's case is not the facts, but the way we have had to plead in ours, and the way we have had to try to get the courts below to apply the standards that you have set out.

Our case has been, I think, very active, and it was visited by the en banc Eleventh Circuit four times.

Unidentified Justice: Did you say it is the third time it has been here?

Robert A. Harper Jr: Yes, sir.

Yes, sir, it is the third time here, but I think it is appropriate to say that the issues are more ripe now.

The magistrate made certain findings below, and the District Judge made findings below that make things ripe in the sense of this.

There are historical findings that have been made that are important by the judge below which are now reviewed under a clearly erroneous standard, and I think those findings, those types of things solidify the rights of Willie Darden to the relief that we are requesting.

And that isn't the only issue in the case.

The exclusion of Murphy, venirium in Murphy, I think, is a perfectly viable issue.

It certainly falls short of the breadth of Lockhart, but is as viable an alternative to the relief that we request on the argument.

Mr. Murphy was clearly excluded applying the wrong standard of law.

He was not questioned under the Adams standard, and I think it is appropriate to review the case and reverse the case on that issue by itself.

Unidentified Justice: Well, Murphy was sitting there while the judge had made his introductory statements in that regard, wasn't he?

Robert A. Harper Jr: Your Honor, that cannot be gleaned from the record, and I would submit, Justice Rehnquist, that a contrary inference could be drawn from the record.

The appendix at Page 5, the transcript at Page 6, the judge says,

"All right, at this time we will take a recess for ten minutes. "

"I would like you all back in the courtroom to proceed with the selection of the jury. "

One of the jurors said,

"Beg your pardon, sir? "

"She was talking, and I couldn't hear what you said. "

I don't think you can conclude from the record that Mr. Murphy heard.

Unidentified Justice: Well, but if there is a debate on that, I think that our cases on federal habeas review say that you presume the judge applied the correct standard.

Robert A. Harper Jr: Yes, sir, but I don't think that presumption can apply in this case, and the reason I say that are two.

The findings are not fairly supported by the record, and there was an inadequate development of the material facts, and I think that the presumption of correctness that has been announced, and which really is not new law, but just a new enunciation of the proceedings under 254(b).

Unidentified Justice: If you should prevail, counsel, on the juror Murphy issue, what is the result, vacation of the conviction or only of the death penalty?

Robert A. Harper Jr: Only of the death penalty, Your Honor.

If it please, Mr. Chief Justice, I would be willing to reserve my remaining time at this time for rebuttal.

Chief Justice Warren E. Burger: Mr. Prospect.

ORAL ARGUMENT OF RICHARD W. PROSPECT, ESQ., ON BEHALF OF THE RESPONDENT

Richard W. Prospect: Mr. Chief Justice, and may it please the Court, with regards to the first remarks that Mr. Harper made, I would like to relate to the Court historically that nine years ago when we argued this case another lawyer appeared on behalf of Mr. Darden and gave essentially the same attack on the statements of the prosecutor.

Nothing obviously has changed.

The remarks have remained the same for the past 13 years.

The attacks have remained the same, and judicial treatments and considerations of the propriety of those remarks have likewise remained the same.

The only thing that has changed between nine years ago and now is the federal hearing we had in 1979 in District Court.

Nine years ago I stood here and told you that although the remarks were indeed improper and no thinking person could ever hope to defend them either singularly or collectively, there was something that I thought was very compelling about the case, and that was the lack of objection.

There was no objection to the particular alleged inflammatory remarks.

At that time, I knew only that there was no objection, but by virtue of the federal hearing, I know why, and the Court knows now why there was no such objection.

The lead defense counsel for Mr. Darden, Mr. Goodwill, testified at the federal hearing which, if I may digress for a moment, the federal hearing was held for the sole purpose of determining the ineffective assistance of counsel claim.

As a major premise of that challenge, the defense intended to develop the reason for failure to object.

It was their legal position that the failure to object to these arguments represented and constituted ineffective assistance of counsel.

Now, obviously, Mr. Goodwill had to testify that there was no objection, but he gave as his reason the fact that apparently he and the prosecutor were old friends.

They had gone to law school together, and they had known each other approximately 13 years.

When I asked him directly why there was no objection, he stated that because of his prior acquaintance with the prosecutor and by having cases against him and knowing him as a lawyer, he was confident that his remarks, if left unchecked, would rise to a level which would represent reversible error without the need of objection.

Now, this question that I asked of the gentleman was specifically responsive to the testimony presented on behalf of the defense at the federal hearing from the other lawyer, the junior attorney who was newly admitted to the bar who was assisting Mr. Goodwill.

His name was Maloney.

Mr. Maloney said the reason there was no objection was because he didn't know anything that the prosecutor was saying was objectionable.

Mr. Goodwill contradicted that, and specifically added that at one point in the closing argument Mr. Maloney arose as if to object and he physically restrained him.

Now, this was sworn testimony before a federal magistrate.

In this particular regard, even the magistrate, the one person who Mr. Darden relied so heavily upon, made a finding of fact after hearing testimony.

He rejected obviously Mr. Maloney's testimony and accepted as a finding of historical fact that the lack of objection was due to deliberate tactical choice.

Now, for the past few minutes we have obviously heard complaints about the arguments, and we have heard the requests that because of the arguments alone the conviction should be reversed.

Unidentified Justice: Has there ever been a finding about effective assistance of counsel in this case?

Richard W. Prospect: Yes, sir.

Unidentified Justice: There has been?

I thought so.

Richard W. Prospect: That has been consistent throughout.

The magistrate through the Eleventh Circuit en banc every time.

Unidentified Justice: Well, while I have you interrupted, do you agree that there are some arguments that get to the point where they are constitutionally impermissible?

Richard W. Prospect: If viewed by themselves under different circumstances and perhaps in a different case, yes, sir.

I agree that they have no business in a courtroom in our land.

But I have to temper that answer--

Unidentified Justice: I keep hearing that, but I have difficulty finding a case that after saying that they reversed.

Richard W. Prospect: --That is true.

And obviously Mr. Darden wants this to be the first one.

But in answer to Justice Rehnquist's question about that, I think the standard has been developed, at least in the federal context, in United States versus Young.

Now, there the remarks weren't hardly as bad, but the concept and the standard that was applied was whether viewing the remarks alone could a determination be made that the jury was unable to properly weigh the evidence.

Now, for a moment we brush aside the fact that there was no objection, and that there was no objection for a deliberate reason.

Even without that consideration momentarily the remarks were really more the product of somebody who perhaps got carried away to the point of forgetting his professional responsibility.

As I point out in my brief, the defense counsel made a very skilful closing argument in which he pointed out the fact of Mr. McDaniels parading around the courtroom and slapping paper on the table, and apparently he was doing something else that wasn't demonstrated, at least not in the record.

He mentioned to the jury that Mr. McDaniel never argues the evidence or talks about the case.

He wants to embarrass you into a verdict.

He wants you to be harangued into a verdict, to use his words.

If I may quote,

"My God, I get the impression he wants to be there to pull the switch. "

The jury heard this, and they saw what the prosecutor did, and only they did.

We never did.

If you will remember, the record reflects that those 44 pages of closing argument were followed by an equal, if not greater, number of closing argument pages by the defense, during which still maintain a very skillful usage of the prosecutor's transgressions was had.

Unidentified Justice: Was this the issue before us when it was here before?

Richard W. Prospect: Yes, sir, and only the issue.

Unidentified Justice: And that is when you were here before?

Richard W. Prospect: Yes, sir.

Unidentified Justice: And we dismissed as improvidently granted?

Richard W. Prospect: Yes, sir.

Unidentified Justice: It was just a line, no opinion?

Richard W. Prospect: Just a line, sir.

The claim today is different in that we now have the Caldwell Eighth Amendment ramification introduced.

Although it hasn't been stated, I guess what the position is that this argument carried over to the sentencing phase of trial such that the recommendation and thus the ultimate sentence was not reliable in terms of the Eighth Amendment.

Now, I will just mention that the defense counsel followed that argument with a lengthy closing argument, as long or longer.

At the close of that argument, the judge instructed the jury in a capital case in a first degree murder, the instructions of which are very long and involved.

At that point in time, the jury retired for, as the record reflects, two hours and ten minutes.

After they returned with their verdicts, they were polled individually three times, once for each count.

At that time, brief closing remarks were made by defense and prosecution during the penalty phase of the trial.

Nothing has ever been claimed here or before that the remarks of the prosecutor during penalty phase were improper in any way.

In fact, they are very brief, and if I may sum up, the prosecutor asked the jury to listen and remember the evidence that was presented at trial, and I am sure you will find after listening to the judge's instructions that Mr. Darden falls into the aggravating circumstances and doesn't fall into any of the mitigating circumstances.

At that point, the record shows that the jury deliberated for an additional 40 minutes and returned a recommendation of death.

If we add all that up, we are looking at approximately four-and-a-half to five hours when the recommendation of death came after the argument which the defense maintains necessarily infected.

I think that is a factor to be considered.

No court has ever held that the arguments alone under the circumstances of this case have infected the determination of guilt.

Now, I submit that if that is true, then I don't see how the carryover effect could be had to the recommendation, which was only a recommendation, mind you.

If I could get back to the fact of the lack of objection, I think that is really the issue in this case.

Was that choice permissible in a capital case?

As I have stated in my brief, I think that decisions of counsel obviously can bind any defendant.

Decisions of counsel can obviously define... I am sorry... bind a capital defendant.

But will those decisions, even though deliberate, will they allow a capital defendant to be... to suffer any adverse or prejudicial effect.

And that is what I think the crux of this case is on this issue.

And I have offered the standard of reasonableness, borrowing from Strickland versus Washington.

Did Mr. Goodwill's decision not to object, did it represent a reasonable decision under the circumstances and facts of that case?

Now, I would like to remind the Court again that this case was indeed the first case in Polk County, Florida, in 1973.

Everyone involved was relatively, if not totally, new at proceeding under our capital statute at that time.

If you accept the premise that Goodwill offered under oath that the prosecutor would go indeed to the point of reversible error, you have got to examine what possible effect he expected or hoped for.

He didn't get a verdict of acquittal.

That is obvious.

So he wasn't successful.

But nevertheless was he reasonable in anticipating at that time the proposition that if he allowed the prosecutor to go on, could he possibly embarrass the jury out of a verdict?

He turned everything the prosecutor said skillfully around, I submit.

I think at that point in time, not using the benefit of hindsight and result-oriented thinking, I think it was reasonable.

He had made other tactical choices during the proceedings.

One, which I mentioned in the brief, regarded alibi.

Mr. Darden at all times wanted to present a defensive alibi, and based on their investigation, the lawyers assigned to the case could not account for his whereabouts between approximately 5:30 and 6:30... 6:00 o'clock, I am sorry.

That period of time was a gap.

The decision was made not to go with a strong alibi defense in terms of a formal defense.

The decision as revealed in the federal hearing was to let Mr. Darden take the stand, provide evidence of his alibi up to a point, and let the state provide evidence from that point after, in other words, before the gap and after the gap.

That turned out, we learned again in the federal hearing, to be a proper choice, because the prosecutor told the defense lawyer later, after the trial, that he was just hoping an alibi defense would have been presented because he was fully prepared in rebuttal to come in and show that from where Mr. Darden said he was at a given point, there was ample time driving the routes necessary to have gotten to the furniture store, committed the crime, headed out of town on State Road... or US 92, and had the accident, which was never disputed.

That was a good choice.

Again, the choice about failing to object, while not good, was still reasonable, and I think even though this is a capital case, and I am not standing here saying that we can always provide procedural bars in capital cases.

This is a serious business.

I think, to borrow language from the Court in other decisions, perhaps capital defendants are entitled to as much protection as possible, but I nevertheless think in the circumstances of this case it was reasonable.

The evidence that was presented was strong.

I think the jury was intelligent enough to know that the prosecutor was simply being outrageous.

There is no showing that they were infected or affected by what he said.

The evidence was ample.

They could have and obviously did return their verdict based only on that evidence, and I think the petitioner here, the defendant has failed to show other than the claim how or why there is even the possibility that they were affected by the closing argument.

I think he needs to do this.

I posited that position in my brief, and I think if anything is written in that regard it should be that if you are going to make that claim under facts and circumstances like this case, there should be some burden shown.

I think there has been none offered and obviously none shown.

Regarding the Witherspoon issue, I cheerfully admit that the question of Caldwell was raised in the third petition for rehearing seeking the fourth en banc hearing of the Eleventh Circuit.

I also note that two of the dissenters mentioned that the issue, the Eighth Amendment issue of closing argument ought to be considered in light of Caldwell versus Mississippi as well as the series of cases that the Court had come out with about the same time.

I don't believe, however, that the views of the dissenters are equivalent to a holding on the issue.

I don't really think the Eleventh Circuit has ever addressed this.

But as against the possibility that some could consider they had, I would like to say that this is not Caldwell.

I don't need to remind the Court what was involved there, but I will briefly emphasize that in Caldwell that which lessened the reliability of the sentence were remarks made by the prosecutor to the jury who was the sentencer, unlike Florida.

This jury in Mississippi did the actual sentencing.

The remarks were of the tenor that, ladies and gentlemen of the jury, you don't really need to worry about what you are going to do, because this case is going to be reviewed by higher authority.

An objection was made, unlike here, and the trial judge reinforced that statement when he repeated to the effect, ladies and gentlemen, that is true, there will be further review of this case.

Now, for the very, I think, compelling and adequate reasons expressed in the decision, that could have left the jury with the possibility that they could have shirked their responsibility with the idea that someone after them would take care of sentencing this individual.

Thus the reliability was lessened.

We don't have that here.

We have got improper remarks, but we don't have misstatements of law.

We have nothing going to the jury which indicated they could do anything but what they had to do.

At that point it was guilt or innocence.

We don't have the trial judge reinforcing what the prosecutor said.

I realize that the rather loose claim has been made that the trial judge told the jury to listen carefully to the closing arguments, that these lawyers were trained, and that they should pay close attention.

But I don't think that hardly rises to the same level as the statements of the trial judge in the Mississippi case.

The last issue which has not been argued by Mr. Harper yet, if at all, regards the ineffective assistance of counsel.

Unidentified Justice: May I ask, because it was argued, are you going to comment on the Witherspoon problem in your presentation?

That was argued both orally and in you brief.

Richard W. Prospect: Yes, sir.

Thank you for reminding me.

I completely forgot.

Unidentified Justice: And in your brief, I notice you state that the venirman Murphy told the trial judge his principles were such that he could not vote to recommend a penalty regardless of the facts, but that is not what he told the jury, is it?

That was not the question that was asked, was it?

Richard W. Prospect: Of Mr. Murphy?

Unidentified Justice: He was asked whether he could do that without violating his own scruples.

Richard W. Prospect: His principles.

Unidentified Justice: Yes.

Do you think that is an adequate question?

Richard W. Prospect: Yes, I do.

I think it is a semantic exercise to say that using the Witt standard of substantially impairing or prevent, I think when the man who sat throughout the entire examination, and I would like to step aside for one moment, there is record support.

Unidentified Justice: I wanted to break my question in two parts.

First, if you just had that question by itself, would you not agree that that is just almost verbatim the Illinois statute that was held insufficient in Witherspoon?

Richard W. Prospect: Perhaps--

Unidentified Justice: They were asked there whether they had scruples against the death penalty.

Richard W. Prospect: --Perhaps relating to the statute, but the question asked in Witherspoon had nothing to do with the statute in terms of the language.

My reading of Witherspoon was that the 47 venirmen who were excused were done on the basis of one or two perfunctory questions to the effect, do you have any views against capital punishment.

Unidentified Justice: Well, the statute provided if you have conscientious scruples against capital punishment, you can be excused for cause.

Richard W. Prospect: And I--

Unidentified Justice: Do you think today if a venirman is asked if he has conscientious scruples against capital punishment, and he says yes, would that be sufficient to justify his using it for cause?

Richard W. Prospect: --No, I don't think it would.

Unidentified Justice: Well, why isn't that precisely the question that was asked here?

Richard W. Prospect: Because Mr. Murphy was asked, do you have any principles in opposition such that you could not participate in a recommendation of the sentence of death.

Unidentified Justice: Without violating those principles.

Richard W. Prospect: Without violating those principles.

Unidentified Justice: Do you think it is impossible that a person could violate his own principles if the law required him to do so?

Richard W. Prospect: Is it possible to violate?

Unidentified Justice: Yes, that is exactly what--

Richard W. Prospect: Yes, I think it is possible.

Unidentified Justice: --Then he hasn't said you couldn't vote against the death penalty.

He has only said he can't do it without violating his principles.

Richard W. Prospect: Well, it would be my position that the violating of his principles would represent an impairment of his ability to follow the law.

Unidentified Justice: I see.

Richard W. Prospect: That is my position on that.

Unidentified Justice: Then I suppose you would say that the statute held invalid... the Illinois statute held invalid in Witherspoon is now valid under the later case?

Richard W. Prospect: Yes, sir.

Unidentified Justice: Witherspoon has been overruled, is your position.

That is what it comes down to, I think.

Richard W. Prospect: I don't know I would go that far.

Unidentified Justice: You just did.

Richard W. Prospect: If I could explain my answer, I don't think the statute was as much in issue in Witherspoon as it was the lack of questioning which trapped the statute.

Had the Illinois judge elucidated on the statute and established not only the opposition to capital punishment, but also that the individual jurors involved were opposed such that they couldn't follow the law, I don't think Witherspoon would have been decided the way it was.

If I recall Justice Stewart setting the tone of that trial--

Unidentified Justice: In other words, you are saying if they had asked that additional question, which of course they didn't ask here, either, as to whether they could--

Richard W. Prospect: --No, no, they didn't ask additional questions, but previous questions were asked at least 14 times.

Unidentified Justice: --Of this juror?

Richard W. Prospect: No, sir.

To the pool, the entire pool, and two things I would like to point out.

In the beginning, the trial judge explained to the entire people before 12 were selected to go into the box for individual examination, he specifically told them in language which even the defense doesn't complain about that they were all going to be asked questions regarding capital punishment, so they at least knew that something was coming in that regard.

Now, Mr. Harper faults the Eleventh Circuit as well as the District Court, the conclusion of both courts that presumably or obviously Mr. Murphy heard all questions going before the one asked of him.

Now, there is record support, a gentleman by the name of Mulroy... I believe it is on Page 89 of the trial transcript... was called in after peremptory excusal, and the first thing asked of him was, could you hear the questions we have been asking all the jurors?

And he says, yes, I could.

Now, it would be obviously better if the same question was asked of Murphy, but it wasn't.

But I think the presumption or the logical inference can be that the circumstances of the questioning of the jurors was such that all prospective jurors, and I am talking about those before they were called into the box for individual examination not only heard the questions asked of those, they observed the people who answered in the specific way those five who were excused.

They saw them step down.

Unidentified Justice: Well, may I ask, do you think that the record before the particular question was asked of Murphy is clear enough so that if the judge had just said to Mr. Murphy, is there any reason why you can't sit in this case, and he had said no, that he could then have been... I am sorry.

I have it backwards.

He did at least have to ask this question to... I am sorry.

No, I have it backwards.

I'm sorry.

I shouldn't have interrupted you.

Richard W. Prospect: That is quite all right, sir.

But, wherever I was, I think I was about to--

Unidentified Justice: You are relying heavily on what was said in the general discussion rather than on this particular question, is really what I am trying to--

Richard W. Prospect: --I am relying on it, Your Honor, but I still don't abandon the position that the question is sufficient under Witt to demonstrate that Mr. Murphy could not follow the law.

Unidentified Justice: --If it weren't for Witt, would you agree it was plainly insufficient under Witherspoon.

Would you not agree with that?

You have to rely on Witt as in effect having overruled Witherspoon, I believe.

Richard W. Prospect: To a certain degree, but no, I believe it would have been sufficient under Witherspoon simply because we don't know the exact questions asked in Witherspoon.

Unidentified Justice: But we do know from the first paragraph of the Witherspoon opinion that questions complying with the Illinois statute were not sufficient, and the questions complying with the Illinois statute are substantially in the language that this trial judge, who had had no experience in death cases, as I understand it, asked in this case.

Richard W. Prospect: That is true.

No experience.

But all courts below have consistently held that he understood the concept of Witherspoon perfectly.

I might note that the question that he asked goes only to the first part of Footnote 21 in Witherspoon.

He never got to the guilt or innocence.

He went right to sentence, those two concepts which were merged in Witt and, according to the opinion simplified.

Now, if I may borrow somewhat from the preceding argument, I think that it must be remembered that the objection raised here, and I think rather prophetic in light of the argument before us, the defense filed a pretrial motion contending that the state not be allowed to ask Witherspoon type questions, contending that such questions were irrelevant to a determination of guilt or innocence, but that if the court would allow those questions and if a positive response were asked, that challenges for cause not be allowed, without articulating it any more than that, and I practically stated it verbatim.

The position of the defense in '73 in light of our new statute was that now that we have a bifurcated trial, anything that the state might want to know regarding predisposition to Witherspoon has nothing to do with guilt or innocence.

That was the motion.

It was denied, and a continuing objection was lodged throughout the entire examination, but nothing was renewed.

And I think that is critical.

No juror excused was made the object of a statement, motion, or objection that the individual was impartial, there was no objection, or request, perhaps more importantly, there was no request that the trial court continue questioning and see if the juror, whichever juror had given a response regarding opposition to capital punishment, to see if additional questioning could be had to determine rehabilitation on guilt or innocence.

In that regard, I think that the precise issue is not really raised in terms of the Grigsby concept.

The excusal, I think, was proper standing by itself.

The right question was asked.

I don't know what the wrong standard is that they are continually harping on.

But I submit that it was proper.

Now, if I could return to the last phase, I only want to say since my time is running out that... and if I may, it will be by way of conclusion, this case in addition to being as old as it is is rather eerie.

We have a murder occurring in September of 1973.

Mr. Darden was arrested that evening and was immediately appointed counsel.

The record indicates both directly and I think you can draw logical inferences therefrom that the entire staff of a public defender's office in Polk County, Florida was devoted to this first capital case.

If anyone suffered, I think, in that four-month period I think it was the other criminal defendants in that county who for all the record suggests were getting no attention to their particular cases whatsoever.

The case is prophetic in that the lawyers 13 years ago decided that Witherspoon did not apply to a bifurcated trial by filing their motion.

I think that was innovative and brilliant.

We have a situation where a trial judge in what can only be considered a prophetic vein told the jury that at the second phase of the proceedings they were only going to recommend sentence, and that he was going to give that recommendation, however, great weight.

The great weight concept to our recommendation in Florida was embraced in Tedder versus State, and that wasn't decided until two or three years after this trial.

The trial judge told the defendant, told the jury, and told the defendant's lawyers after reading the statutory mitigating items in our statute, said that no one was limited to these things.

Anything in mitigation, anything relevant was coming in.

The parameters of Lockett were character and record of the accused.

Here he asked for history, family causes, reputation, anything pertinent to the proper sentence.

The lawyers again perhaps being able to see in the future asked questions of the individual jurors relating to race, what they felt about statistics showing the number of convictions and arrests for blacks versus whites, something which I believe was argued last month.

It is surprising, I think, that the amount of due process afforded to this individual has nevertheless resulted in this delay.

I am not here to ask for speed.

I am here only to ask for looking at this case in the context of what it was as it was tried 13 years ago.

We can't judge either the performance of counsel or the performance of the judge by standards which have evolved at this point in time, even though I might add I don't think the judge could have improved one bit between now and then.

Therefore I would ask that the Eleventh Circuit's decision in this case be affirmed in all respects.

Thank you.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Harper?

ORAL ARGUMENT OF ROBERT A. HARPER, JR., ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

Robert A. Harper Jr: Yes, sir, Your Honor.

The state would apparently have Mr. Darden come forward showing some prejudice by this argument.

In other words, place some burden of showing on us which is the standard adopted by the Eleventh Circuit.

We would submit that it is more appropriate that the standard is on the state to show that there was a likelihood of harm from this prejudicial argument.

It is our position that this trial, the system itself broke down.

Unlike Caldwell, where the judge actively intervened and made a proper instruction, the judge was quiet and didn't say anything.

As a matter of fact, when there were what has been categorized as tentative, a weak objection, the judge in one instance overruled it, and in the other instance said, proceed with the case.

Unidentified Justice: What do you have to say about the failure of an objection?

Is that correct... the objection?

Robert A. Harper Jr: The magistrate found there was an objection, firstly, Mr. Chief Justice, and what was at... it is in the appendix at Page 240... excuse me, the appendix at 214, late and tentative.

I would submit that finding of fact is reviewable under the clearly erroneous standard.

The District Judge, however, said that the state decision was rendered by the Supreme Court to entertain fair trial on the merits and pronouncements.

Unidentified Justice: What does the transcript of the trial show with respect to an objection?

Robert A. Harper Jr: Your Honor, in my opinion it shows defense counsel alternatively rising to object to the argument in two separate instances.

Unidentified Justice: And what was the specific objection made in those two instances?

Wasn't one having to do with the gun?

Robert A. Harper Jr: One... the second objection was... that is about the fifth time the state has said he wished the defendant would kill himself.

And the first objection was to the evidence.

But the second objection, I think, was clearly to the improper argument.

But as to this prejudice showing, I think it is important to note that the jury even in this case was split, and if there is such universal accord on the death penalty being appropriate... even in the face of this argument there was a split verdict... I think there is some... that is some showing, at least, that the reliability of the outcome has been infringed upon.

Unidentified Justice: Mr. Harper, how do you read the magistrate's... is it a finding, defense counsel's objection to the prosecutor's argument was late and tentative?

What does that mean?

Robert A. Harper Jr: I read it to mean that there was an objection, albeit late, albeit a little weak, but there was an objection.

Unidentified Justice: What about the testimony of the lawyer at the habeas hearing?

Robert A. Harper Jr: Well, there are two lawyers who have testified there, of course, Your Honor.

Unidentified Justice: Did they claim they objected?

Robert A. Harper Jr: One said... yes, sir.

There was a conflict in the testimony between those two lawyers.

Just one of them said co-counsel, Mr. Goodwill, was too intoxicated to show up, and I had to go to court one day.

There was a conflict on that testimony.

There was a conflict on the testimony about the objection.

One said we didn't know about it.

The other one said it was a tactical decision.

But in any event, I would submit--

Unidentified Justice: What was a tactical decision?

Robert A. Harper Jr: --The not objecting was--

Unidentified Justice: So there was testimony that there was no objection.

Robert A. Harper Jr: --There was an objection that he withheld objection until a later point, Your Honor.

It was not testimony there was no objection, that early objections were withheld.

Unidentified Justice: Mr. Harper, the Florida Supreme Court found, and this is on Page 50 of the joint appendix, appellant admits that his attorney voiced but a single objection to the prosecutor's closing arguments, and that it was not directed to any of the alleged inflammatory matter, and that his attorney waited until the fifth objection... a fifth occasion to object at all.

Robert A. Harper Jr: Yes, sir.

Unidentified Justice: Do we have to disregard that?

Robert A. Harper Jr: Well, sir, I think there are two answers to that.

First of all, the magistrate has made findings now that we are in federal habeas proceedings.

Secondly--

Unidentified Justice: But they were... accepted by the District Court.

Robert A. Harper Jr: --Yes, sir.

Yes, sir.

And secondly, we have the Supreme Court of Florida in any event reaching the merits of the issue, clearly.

And thirdly, that is an alternative ground... the Supreme Court never said we are applying the procedural bar.

They in footnotes site Jones v. State, but they don't say we are applying a procedural bar, and indeed they can, but because counsel didn't object, it triggered a rule in Florida that this case would have to be reviewed under a fundamental error standard, under state law.

It is reviewable without objection, and it had to be reviewed by the Supreme Court under the death penalty statute.

The total record had to be anyway.

So, the Supreme Court of Florida had reached the merits under either one of, whether there was or wasn't an objection.

They had to and did reach the merits of the issue.

The Witherspoon argument rebuttal reply I would like to make is that the appendix failed to pick up the next line after the excusal of juror Murphy, and that is at Page... let's see, Page 9.

It says,

"All right, sir, you will be excused. "

"Murphy then left the box. "

In the trial transcript, Page 165, the very next line is the judge saying, Ms. Horne> ["], the court reporter,

"you will please note an objection for cause by counsel. "

And I would submit that the trial judge himself enunciating that objection into the record is all that is necessary.

I don't think that an experienced trial lawyer in Florida is going to say, oh, yes, sir, Your Honor, and in addition to that objection for cause I would like to explain further an additional grounds, I think the trial lawyers would say when a judge says your objection is noted, that is the end of it, and when the judge said, your objection for cause is noted... it didn't say your objection, it said an objection for cause is noted... that is all that is necessary, and a lawyer owes his respect to a court to say nothing, and I think that is what happened here.

It is there, and that is my rebuttal and reply.

Thank you.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Donnelly v. Dechristoforo - Oral Argument

Thu, 23 Aug 2012 18:24:08 +0000

Case:

Donnelly v. Dechristoforo

Media File:

72-1570_19740220-argument.mp3

Related Transcript:

72-1570_19740220-argument

Transcript:

Argument of David A. Mills

Chief Justice Warren E. Burger: We'll hear arguments next in 72-1570, Donnelly against Dechristoforo.

Mr. Mills?

Mr. David A. Mills: Thank you, Your Honor.

Mr. Chief Justice and may it please the Court.

These case in on certiorari to the First Circuit Court of Appeals to review a judgment of that court vacating an order of the District Court for the District of Massachusetts which had denied without prejudice a petition for habeas corpus presented by the respondent pursuant to Title 28 Section 2254.

The basis of the state custody of the petitioner in that proceeding had been affected by conviction in the state trial court of murder in the first degree and possession of firearms violation.

The Respondent was indited in May of 1967 for murder in the first-degree and firearms possessions charges.

He was apprehended approximately 20 months later and was brought to trial with a co-defendant when Gagliardi in April of 1969.

The petitioner wishes to stress the components of that trial.

The trial was a seven-day trial.

It was preceded with pre trial discovery including a pre trial discovery motions seven of which were allowed.

One of the pre trial discovery motions was a motion for Bill of Particulus which according to Massachusetts practice was read to the jury.

Additionally, the trial included opening instructions by the judge to the jury opening remarks by council.

The testimony of two primary police witnesses, two secondary police witnesses, a chemist, a ballisticians, a pathologist, two FBI agents and several civilian witnesses.

Additionally at the cost of the trial, several exhibits were introduced including weapons and documents.

Additional components of the trial included closing remarks by the Assistant District Attorney, Defense Council, closing instruction by the jury and an sworn statement by the Respondent as a Defendant, a practice which was in effect in 1969 in Massachusetts.

It should also be noted that the trial was preceded by a view.

Those are the components of the trial.

The Fannies of which is in question before this Court today.

The uncontradicted evidence before the court tended to show that the Respondent along with three other persons was seen in a car at approximately 4 o’clock in morning on April 18, 1967.

He was seen there by two police officers each of whom testified at the trial.

The uncontradicted evidence further tends to show that when Gagliardi, the co-defendant was the driver of the car that the respondent in the case before this Court, then Defendant Dechristoforo was a passenger in the rear seat of the car seated behind Gagliardi that a third alive passenger, Oreto, was also seated in the back seat, and then a fourth person when Lanzi, who appeared to be asleep, was in the front passenger seat of the cab.

The evidence further tends to show that Dechristoforo and Gagliardi were questioned by the police at the seen prior to the determination by the police that Lanzi was not in fact asleep but was dead, having been shot once in the head and three times in the side.

Apparently and according to the uncontradicted testimony, Dechristoforo and Gagliardi were questioned at the scene.

Evidence which is contested in path was introduced at the trial to show that after seen Respondent Dechristoforo when questioned as to his own identity and purpose gave the police a wrong name, a wrong description of the reason why they would there in that place and identify the deceased victim by a name other than his own.

In effect, the respondent said did not say that his name was Dechristoforo, said that the disease person had been injured in a fight and revere and was been taken to the hospital and gave a wrong description, a wrong name with respect to the decedent.

Gagliardi and the Respondent Dechristoforo then left the scene.

It was then determined that Lanzi was dead.

The third occupant, the third live occupant of the cab was arrested at that time.

During the course of the trial additionally, there was evidence that death had been cost by gunshot wounds that occurred in the cab between 3 and 4 o’clock in the morning.

Additionally at the scene, the police found a 38 revolver in the back seat where Oreto had been seated that had been shot once.

An additional weapon a derringer fully loaded on the floor in front of the seat were Respondent Dechristoforo had been seated and it was also evidence at the trial that a third revolver was laid to found buried in an area adjacent to the location of the cab and evidence by way of ballistics was introduced to show that the wound in the head in the decedent had been caused by the gun that was found on the back seat and that the three shots in the side of the decedent had been caused by that revolver that was laid to found buried behind the scene.

Now, at the close of all of the evidence co-defendant Gagliardi pleaded guilty in the absence of the jury.

When the jury was brought into the court room, the trial judge instructed or remark to the juries and I quote in the quote is contain on page 7 of the petitioners brief.

"Mr. Foreman and gentlemen of the jury, you have noted that the Defendant Gagliardi is not in the dock, he has pleaded guilty and his case has been disposed off."

We will, therefore go forward with the trial of the case of Commonwealth v. Dechristoforo that is detained also in the appendix record of page 99.

At that time consistent with what the petitioners suggests with the admirable trial tactics of defense council, no objection was made to that remark, no instruction was ask and no instruction was given.

Thereafter, Respondents’ council proceeded with his closing arguments to the jury.

The Prosecutors’ argument as is the custom in Massachusetts followed the defense council’s closing argument.

And at the beginning, I hesitate to read to the court and yet, I am reluctant to read a single remark to this court without reading some of the context in which that single remark occurred.

Justice Byron R. White: Under what page?

Mr. David A. Mills: From petitioner’s brief Your Honor at page 9.

The Prosecutor’s closing remarks and its entirety appears in the record appendix.

The Prosecutor’s closing argument let me prefess my argument by saying that first of all, I am aware that when I say is really an argument because the word argument pre supposes that I am prejudice to the cause that I represent which of course I am.

I Think that the very nature of the system being advisory pitting one side against the other naturally make you point to those things which you think support your particular position and to more or less ignore those things which I supposed detracked from it.

I would like to skip down one paragraph and I will seize reading.

And I realize that my closing argument should be in no way conceited by you as any evidence in the case and I am sure that you won’t consider it as that and I am sure that my opening statement to you is in no way evidence in the case and it won’t be conceited by you as evidence.

The Prosecutor in his argument, the Assistant District Attorney then went on to explain to the jury his version of the case but suffice it to say that he argued to the jury.

His argument is included in full in the record appendix.

During that argument and the Assistant District Attorney made a statement which is contained in all of the paper in this case and in Petitioners brief at page 11, I do not know what they want you to do by way of a verdict.

They said that they hope you find him not guilty.

I quite frankly think that they hope that you find him guilty of something a little less than first-degree murder.

An objection to this remark was immediately made and although the record is not completely clear on the point and I respectfully direct the Court’s attention to the record appendix at page 129.

At that point, Mr. Smith said I object to that. The court said I do not think Mr. Smith that is not fair argument.

The court know Mr. Smith that isn’t so.

I think to see and he say that the Assistant District Attorney then proceeded with his argument talking about another topic.

The record shows that the trial judge indicated that had an objection that the objection had in fact been sustained and that had counsel requested instruction at that time, they would have been given.

Justice Byron R. White: Mr. Mills I am just curious.

The Prosecutor here was Mr. Irwin was it?

Mr. David A. Mills: Yes, Your Honor.

Justice Byron R. White: Is he the one that’s now the Assistant A.G. at Massachusetts?

Mr. David A. Mills: He is an Assistant Attorney General in Massachusetts Your Honor.

Justice Byron R. White: His name is on the briefs here?

Mr. David A. Mills: It is, yes Your Honor.

Now following -- may I please the court, following that closing argument of the Assistant District Attorney, the defendant, now respondent in this Court, was allowed to make an unsworn statement to the jury.

Thereafter follow the instructions of the Court.

Justice William H. Rehnquist: So the unsworn statement by the defendant comes after the closing argument of counsel in Massachusetts?

Mr. David A. Mills: Yes, Your Honor it does.

Although, there is a question as to whether or not there is any such thing anymore in Massachusetts called an unsworn statement.

Justice William H. Rehnquist: But it did it this time?

Mr. David A. Mills: In 1969, yes Your Honor.

The judge in his charge First I think it’s only fair to say something about instructions that were requested by the defendants now respondents counsel specific instructions to the jury by way of a writing were made to the Court, they are also contained in the record's appendix.

The Court did not give the specific instructions that were requested by Defendant’s counsel.

The Court charge the jury and the portion of the charge which we wish this Court to consider is contained on page 142 of the record appendix, given the fact that the defendant’s unsworn statement had been the most immediate proceeding event in the trial following the charge, the trial judge and we suggest properly first commented upon the unsworn statement, basically saying that we suggest that it is not evidence.

And at page 143, the judge instructed the jury begging the Court’s indulgence for permission to read his instruction.

Let me begin this charge by saying to you that as I have said with regard to unsworn statements not subject to cross-examination of the Defendant, it is not evidence, nor are arguments of counsel nor the opening of counsel whether it be the Assistant District Attorney in this case or whether it be Mr. Smith.

It is not evidence for your consideration.

Opening of counsel made by either the District Attorney or Mr. Smith on behalf of his client are not evidence, but they are merely for statement by the District Attorney or by Mr. Smith the defense counsel for which they respectively hope to prove.

Drop down two lines to the next full paragraph, excuse me Your Honors.

The closing arguments tool Madame and Gentleman of the jury, the counsel often becomes over zealous.

Closing arguments are not evidence for your consideration.

Closing arguments Madame and Gentleman are merely statements by the respective counsel as to how they hope you will view the evidence of which you have heard and now with particular reference to that paragraph of instructions beginning at page at the bottom of page 143 of the record appendix.

The judge continued.

Now in his closing with District Attorney, I noted made a statement.

I don’t know what they want you to do by way of a verdict.

They said they’ve hope that you find him not guilty.

I quiet frankly think that they hope you find him guilty of something a little less than first-degree murder.

There is no evidence of that whatsoever.

Of course, you are instructed to disregard that statement made by the District Attorney consider the case as there is no such statement was made.

The jury returned a verdict of murder in the first-degree with a recommendation of the death penalty not to be imposed and verdicts of guilty on each of two counts of a firearms charge.

The case prior to appeal in the State Courts are the defendant move for a new trial in the State Courts and the case was then appeal to the Supreme Judicial Court of the Commonwealth on several assignments of error including an assignment of the denial of the defendant’s motion for mistrial.

In other words, the question of the propriety and the alleged prejudice of the remarks made by Assistant District Attorney in his closing will brought to the full Court in Massachusetts.

Chief Justice Warren E. Burger: Before you leave this factual situation, you’ve already pointed out that the record shows that there where three pistols involved here.

Two in the garn, one had been removed from the car and they are three alive passengers in the car.

Was there anything in the record?

Is there anything in the record that identifies any of those firearms with the specific defendants of these three passengers by way of gun registration or sort of thing?

Mr. David A. Mills: Your Honor, interestingly enough, the only identification about weapon as to any particular defendant had to do with the position of the weapon in the car and the fact that one weapon was found in an area with the driver Gagliardi had left for after being questioned by the police and the record explicitly shows that all identification had been previously removed from the firearms.

The case was seasonal re-appealed to the Supreme Judicial Court on this question and the Court by a solid majority and over a various strenuous and explicit dissent by our Chief Justice which was concurred by another justice concluded that the.

And I should know excuse me Your Honors that our Court, the Supreme Judicial Court, anonymously noted the impropriety of this remarks and soundly condemn them.

Finding however that the argument as a whole did not require a mistrial and I would like to suggest the criteria that the Court used in coming to its conclusion and they are of course, contained in the opinion of the Supreme Judicial Court which is reprinted inform the record appendix.

Chief Justice Warren E. Burger: Did the Defense counsel in his opening statement to the jury outline some evidence that he intended to prove which he later did not support with evidence?

It is the position of the petitioner Your Honor that several items in the opening and in the closing made by the Defense counsel where never proven at trial.

Justice William H. Rehnquist: This isn’t a unique failing is it?

Mr. David A. Mills: Unique in what, excuse me Your Honor?

Justice William H. Rehnquist: Well, it is not unique in the experience of trying a case that something you saying in your opening statement.

You turn out that you cannot prove.

Mr. David A. Mills: Unique in the sense that if it’s also contained in your closing statement Your Honor, we suggest that it perhaps is unique.

The Supreme Judicial Court explicitly examined the whole argument and the whole trial proceeding consistent with an obligation on the Massachusetts Law that in capital cases, the entire trial proceeding be examined.

The Supreme Judicial Court examined the judge’s instructions, the lack of an immediate request for instructions after some of the remarks were made.

Justice William H. Rehnquist: Your opponent contends as I understand it that Court adjourned rather suddenly after the argument in the afternoon that he really didn’t have an opportunity to make the request to the trial judge until the next morning.

Mr. David A. Mills: I suggest there is nothing in the record to indicate Your Honor that respondent’s count, excuse me, defendants counsel could not have continued his objection in requested a bench conference at that junction in the instruction as he had at various portion in the trial, and it should be noted that as additional components of this trial objection numbering approximately 200 were made and 105 explicit exceptions noted on the record of this trial.

So, it was not a trial with inactivity of the fact of defendant’s counsel.

Justice William H. Rehnquist: Is the lobby conference, the Massachusetts equivalent of incumbents and chambers?

Mr. David A. Mills: I can only -- there is nothing in the record Your Honor, but I can only suggest that there are lobby conferences and bench conferences.

Lobby conferences would be in the judge’s office perhaps for setting ground rules and schedules of trial.

A bench conference is during the course of live testimony in the Court room.

The Supreme Judicial Court, our Supreme Judicial Court also noted the weight of the evidence that had been introduced against the accused and the improbability that a jury in Massachusetts withdraw the settle inferences that have been suggested by the defendant in the State Court, in the Federal District Court that have been adopted by the Circuit Court and that I suggested before this Court today.

I have noted the dissent, I am sure of our Chief Justice to the majority opinion in Massachusetts.

A petition to habeas corpus was filed in the District Court for the District of Massachusetts, the petition, the return; the memorandum of United States Magistrate Davis and the transcript of the arguments before the district judge on this petition are contained in whole in the appendix.

The petition was denied without prejudice.

The District Judge concluding with respect to the claim of prejudice based upon the Assistant District Attorney’s remarks.

The Prosecutor’s arguments were not so prejudicial as to deprive the petitioner of his constitutional right to a fair trial.

On appeal to the Circuit Court, the Court concerned itself and concerned itself explicitly solely with what the petitioner claim had been improper argument by the prosecuting Attorney.

And determine that the particular remark, I do not know what they want you to do by way of a verdict, when read in the light of the proceeding instruction of the jury at the time of the plea of co-defendant Gagliardi in effect amounted to a representation by the Assistant District Attorney to the jury that their defendant Dechristoforo had offered to plead guilty and that his plea had been rejected.

The parties stipulated before the Circuit Court after argument in this case that no offered to plea had been solicited.

That no offered of plea had been made and that the defendant insisted upon a trial at all times, and this is contained within the text of the Circuit Court’s opinion.

The Circuit Court vacated the order often District Court.

The primary points that the petitioner suggest to this Court this morning is it the Court of Appeals failed to fairly consider the entire trial of the respondent in concluding that this remark when read in the light of an early instruction deprive to him with a fair trial.

In this regard, we refer again to the 105 exceptions, to the 12 or 14 witnesses, to the 7 days of trial, to the view, to the Bill of Particulus, to the pre trial discovery, to all of the items that have been mentioned including the items that had been mentioned in this Court’s December decision of Cupp v. Naughten which is the Court recalls involve the question of a particular instruction by a trial judge and a standard of review.

We suggest that the standard of review which has been applicable in lower Federal Courts including our First Circuit in the patriotic case which is cited in the brief makes it incumbent upon the Circuit Court and the District Court.

If it is to examine an allegation of impropriety by a state prosecutor to examine all of the trial and not to look at one particular remark in a vacuum.

We suggest that it may not have been an absolute vacuum, but when compared to the standard of review employed by our own Supreme Judicial Court when it examine this cas.

We suggest that the examination tended by the Circuit Court was a virtual vacuum because although it examined one additional earlier instruction.

We do not feel that that Court adequately examined the entire trial and that this is a basis of error.

Additionally, --

Justice Thurgood Marshall: Was the full trial record in the Court?

Mr. David A. Mills: Excuse me, Your Honor?

Justice Thurgood Marshall: Was the full trial record before the Court of Appeal?

Mr. David A. Mills: Yes, Your Honor.

The entire --

Justice Thurgood Marshall: How can you assume that they didn’t look at it?

Mr. David A. Mills: Well explicitly, the Court did not say that they looked at that Your Honor and stated -- I suppose the petitioner would have felt better if the Court said it had examined all of the trial Your Honor including all of the components of the trial.

And the Court did explicitly say at the outset that we are concerned solely with what petitioner contends were improper proposing argument.

The Circuit Court, the petitioners suggest was also an error on the basis of certain premises that it used in reaching its conclusion that this remark was effectively a representation by the Assistant District Attorney to the jury that the defendant had offered to plea and his plea had been rejected.

First of the Circuit Court without any foundation in the record suggested that the co-defendant’s plea was a plea to second degree murder.

The Court further suggested that a jury must always want it to some extent why a defendant has not pleaded.

We suggest there is no basis for this in a record and that it isn’t unfair conclusion to draw with respect to a jury that a defendant.

Excuse me, that a jury knows that that the defendant who has not sought to plead, even did not wish to plead or he was deterred by the belief that the prosecutor would be unreceptive.

A sophistication and attributing to the jury knowledge and belief that we do not feel is supported by the record and it’s not fairly attributed to a Massachusetts jury.

The Circuit Court also suggested that the jury doesn’t know whether or not a defendants offer a plea has been made and refuse, but the jury knows that the prosecutor knows and we suggest that this is violative factually of the stipulation that was entered into by the parties before that Court.

We suggested that the First Circuit has concluded that jury bargain, excuse me, plea bargaining takes place in all criminal trials in Massachusetts and we suggest there was nothing in the record to support that and nothing in this particular case.

Indeed, the parties stipulated that no offer of plea had been accepted and, excuse me, no offer to plead had been made and no offer how they plea had been solicited.

And finally with respect to the argument by the respondent that what was substantially done by the Assistant District Attorney was a misrepresentation of fact that as a matter of fact, he did not believe what he said.

When he made an improper statement of opinion to the jury that he did not believe what he said.

We suggest that if the Circuit Court were to engage in speculation.

It would have been more reasonable to speculate that is a matter of Massachusetts Law based upon the elements of manslaughter as contained in Massachusetts cases.

The improper suggestion of opinion by the Assistant District Attorney was referring to manslaughter and in fact was an opinion.

Chief Justice Warren E. Burger: Thank you Mr. Mills.

Mr. Smith?

Argument of Paul T. Smith

Mr. Paul T. Smith: Mr. Chief Justice and may it please the Court.

This is a case involving an affirmative falsity of a prosecutor statements and not a case of a procedural error arising from a technically improper argument rectified by juror of instructions.

As the Court of Appeals said in appendix 241, we have before as a case with a prosecutor despite the fact that was wholly and true, struggling indicated to the jury that the defendant had offer to plea guilty.

Justice William H. Rehnquist: And Mr. Smith, why was the Court of Appeals able to reach that conclusion as empathetically as it did on the basis of a statement, they hope that you find him not guilty.

I quite frankly thank that they hope that you find him guilty of something a little less than first-degree murder.

There is no reference in the prosecutor’s comment to anything about a plea.

Mr. Paul T. Smith: Well I think Mr. Justice, that rational of the Court my argument is that when a prosecutor made that statement.

He will knew at that time that the respondent have not sought to plead guilty to any offense.

He also well knew that if the respondent was seeking a something a less than first-degree murder.

You could have had it for the asking because they have been two other defendants, Oreto and Gagliardi, both of whom have pleaded to second-degree murder on the recommendation of the same prosecutor and had been given life sentences.

Justice William H. Rehnquist: But to the words used weren’t that he sought some, then you find him guilty of something a little less than first-degree murder.

Why isn’t that fair inference from that -- what you as his attorney want?

You said you want on a verdict that acquittal but really, you’d be damn happy to get a verdict of second-degree murder?

Mr. Paul T. Smith: I would not.

Oh no, I see.

It mean --

Justice William H. Rehnquist: You would have.

But, why isn’t that the fair inference from the prosecutor state?

Mr. Paul T. Smith: Because he couldn’t have had that opinion Your Honor.

Knowing that Oreto and Gagliardi and might -- I am sure Mr. Mills didn’t contempt to mislead the Court.

The Commonwealth in its closing argument conceited that Oreto was the one who fired one shot into the head of Lanzi the deceased and that Gagliardi have fired of three shots into his side and consider that Dechristoforo had never fired any shots.

So that you have a situation where the two triggerman; Gagliardi and Oreto where allowed to plead guilty to second-degree murder and given life sentences.

Justice William H. Rehnquist: Do I know that from the record that both of them pleaded guilty the second-degree murder.

Mr. Paul T. Smith: Yes, Your Honor.

And the District Attorney knew that and as they saying a petition for certiorari in their brief and I think the petition for suit at page 25 in their brief at page 24 that it would be silly to argue to say that they wouldn’t have given Dechristoforo a plea to second-degree and he ask for it?

So that at the time of the District Attorney made that argument Mr. Justice Rehnquist.

He knew that that was a false argument.

He knew that we would looking for something a little bit less because we could of got a little bit less just as the other two.

Justice Thurgood Marshall: But to understand the Court of Appeal said that the jury could interpret that they have been plead bargaining?

Mr. Paul T. Smith: I didn’t know of read anything only opinion of the Court says anything about plead bargaining.

Justice Thurgood Marshall: Or offered of plead guilty?

Mr. Paul T. Smith: Or there was a stipulation.

Justice Thurgood Marshall: No, no.

I am talking about in the trial.

Did the jury know anything about plead bargaining?

Mr. Paul T. Smith: Nothing I know off.

Justice Thurgood Marshall: You didn’t know anything about pleading guilty?

Mr. Paul T. Smith: They knew that Gagliardi to plead guilty.

Justice Thurgood Marshall: But you did know what did man or anything?

Mr. Paul T. Smith: No.

Justice Thurgood Marshall: No.

Mr. Paul T. Smith: No, no.

Justice Thurgood Marshall: So, how can you draw that any conclusion from what the prosecutor said other than that this man expects to get a lesser crime conviction right here on the basis of what he put in?

Mr. Paul T. Smith: That he is seeking something less.

Justice Thurgood Marshall: Yes.

Mr. Paul T. Smith: Well, I think the conclusion as obvious that he was saying to the jury that I as a prosecutor who went along with a plea of guilty for Gagliardi at the evidence than in before that jury.

That Gagliardi had shot the deceased three times on the side.

That I as a prosecutor having agreed and recommended to the Court, in effect that the Court accept the plea of guilty to second-degree murder.

Justice Thurgood Marshall: That the jury did not know?

Mr. Paul T. Smith: I beg you, pardon?

Justice Thurgood Marshall: The jury didn’t know that the prosecutor recommended it.

All they've knew the man had plea the guilty.

Mr. Paul T. Smith: That so Your Honor.

Justice Thurgood Marshall: Right?

Mr. Paul T. Smith: That so.

Justice Thurgood Marshall: I am just condemned to this to what he said and I could interpret as a juror.

I think that this man would like to get a lesser conviction than first-degree murder if he is rather or not get to that penalty.

Mr. Paul T. Smith: This maybe so Mr. Justice.

Justice Thurgood Marshall: What else can you get out that language?

Mr. Paul T. Smith: I beg you, pardon?

Justice Thurgood Marshall: What else can you get out of the prosecutors language?

Mr. Paul T. Smith: Well, I think that what you get out of that language is that the -- that the respondent was admitting his guilt.

If he was seeking sampling a little less than first-degree murder, he obviously was admitting that he was just --

Justice Thurgood Marshall: Well, in Massachusetts, is it permissible for Defense counsel to argue that his man is innocent but at the same time if you find him guilty, give him guilty of manslaughter.

Is that ever done?

Mr. Paul T. Smith: Yes.

Justice Thurgood Marshall: Well, that’s what I am talking about.

Mr. Paul T. Smith: But Mr. Justice, that wasn’t the case here by way of the very stipulation.

The respondents --

Justice Thurgood Marshall: The stipulation came in after this.

Mr. Paul T. Smith: Yes.

But stip --

Justice Thurgood Marshall: That the jury hasn’t seen the stipulation until yet, right?

Mr. Paul T. Smith: That is correct Mr. Justice.

Justice Thurgood Marshall: And you’re talking about the effect on the jury.

So, what would if the stipulation of the jury never so?

Mr. Paul T. Smith: Well, I am only saying that the stipulation establishes that Dechristoforo had never sought to plead guilty to any offense and that the statement by the prosecutor knowing that he had never sought to plead guilty to any offense.

And knowing also that Dechristoforo had sought to plead guilty, he could of have it for asking the statement by the prosecutor.

I quite frankly think that they hope you find him guilty of something a little less than first-degree murder is a false statement.

Chief Justice Warren E. Burger: Now, let me pursue that with you a little.

You said that twice now it is a false statement it is express as an opinion of course is it not?

You say there is no basis whatever for an opinion playing aside that the Friday if the remark, now I am just going to your claim that the prosecutor knew this was false.

You said there is no basis in this record for an opinion that this man might be simply hoping for a lesser include the defense?

Mr. Paul T. Smith: That is correct and I would like to explain what --

Chief Justice Warren E. Burger: Let me pursue at the moment, the three pistols in the car and three men and a dead man.

Don't you think a jury or juror could reasonably infer from that?

That each of these men and had a gun and that each of them was prepared to do whatever that was necessary to disposed of this fellow?

Mr. Paul T. Smith: Well, I -- Yes that maybe so Mr. Chief Justice but of course I would like the brief --

Chief Justice Warren E. Burger: Tell us, it would be a reasonable inference, wouldnt it?

It would be a reasonable inferencethat a juror could draw from the physical evidence in this case.

Mr. Paul T. Smith: I think that Mr. Mills unwittingly mislead Your Honor in answering your question put to you, put to him by you.

The Commonwealth conceited that the gun that was found on the seat where Oreto had been seated had been fired by Oreto into the back of the head of the deceased that the gun that was laid to found elsewhere was the gun that had been used by Gagliardi to fire a three shots.

The third gun that was found in there was a derringer, fully loaded had not been used.

During the course of the trial, there was evidence that Oreto had worn black gloves, black silk gloves kidskin gloves.

The evidence appeared to be assuming that there was no evidence on the contrary that Dechristoforo had no gloves.

There were no fingerprints on the derringer which was found and which was fully loaded in the back of the car.

Now, as to whether or not the prosecutor could have had an honest opinion and saying oh, I do not know what they want.

I think that what they want is something a little less than first-degree murder.

I’d submit that when a matter is within the personal knowledge of the speaker that qualifying the phrase by the words “I think” doesn’t convert a falsehood into a possible truth or a factual statement into an opinion.

Now, he knew the prosecutor was speaking of a factual proposition.

He knew that no author, no attempt had been made to plead to anything in the case.

Justice William H. Rehnquist: But what he said was that they hope that you find him guilty of something a little he did not say anything about a plea.

Mr. Paul T. Smith: Well, but he is -- Mr. Justice, he is testifying from his knowledge, that jury seating there has a right to believe that when a District Attorney says to them I quite frankly believe something that he has a source of information unknown to them, not in the record, not put on in a trial of the case that as a District Attorney he knows something.

And when he says “I quite frankly believe” and knows that he cannot believe that but he says this to a jury, I think that a jury has a right to draw the conclusion that Dechristoforo made some overture to plead guilty to something.

Justice Thurgood Marshall: Mr. Smith what offences would the jury given a choice can be instruction?

Mr. Paul T. Smith: Under the Massachusetts Law, the Court is required to instruct on first-degree, second-degree and manslaughter.

Justice Thurgood Marshall: So, what he is saying here is that you, the counsel for the defendant in this case really would like to get manslaughter?

Mr. Paul T. Smith: I think you want further than that.

He said he quite frankly believed that that’s what Dechristoforo want to.

Justice Thurgood Marshall: Well if not, what’s wrong with her?

Mr. Paul T. Smith: Well, because it isn’t the fact and he knew it wasn’t the fact and stating that to the jury obviously is a statement that Dechristoforo has indicated that he is guilty of something.

Justice Thurgood Marshall: So?

Mr. Paul T. Smith: Well, this was a case of joint venture charge.

All during the whole course of the trial.

I made every effort to get the Commonwealth to conceive that if that Gagliardi had fired the three shots that Oreto had fired the one shot and that Dechristoforo had never fired any shots.

They --

Justice Thurgood Marshall: His still could have been guilty of first-degree murder all in Massachusetts.

Mr. Paul T. Smith: Yes, surely, if he had been engaged in a joint venture here and I argue that to the Court in the lobby or in chambers and the District Attorneys said that he would not agree to any such -- he would not agree to that.

As a concuss, we had to try this case on the theory that the Commonwealth was going to try to show that Dechristoforo had fired some shots here and it wasn’t until after my closing argument when the prosecutor made his closing argument.

But for the first time, he conceited and he said to the jury that theory of Commonwealth cases that Gagliardi shot three times in the side and that Oreto shot him once through the head.

Justice William H. Rehnquist: The Defense Attorney opens the closing arguments?

Mr. Paul T. Smith: Yes, Your Honor.

Justice William H. Rehnquist: And then the prosecutor responds then do you have a right to rebut?

Mr. Paul T. Smith: No, Your Honor.

We have no right to rebut and that position is that when the prosecutor made this statement, he was on affect testifying.

We had no right to cross examine him.

We have no right to rebut us and that was left with the jury.

The impression was clearly left that Dechristoforo was seeking something less than first-degree murder and on affect.

A representation that jury, that he the prosecutor had reason to believe that because he quite frankly thought that pretty so and as a consequence that Dechristoforo was in a fact confessing to the crime but was seeking to get maybe a better deal.

Now, I submit that this false statement and it is false and it wasn’t simply an opinion, it was on an unequivocal statement that he frankly believed a better that he couldn’t possibly frankly believe because he knew right along that there was that we will go into trial all the way through on this thing.

And when he made that argument which the petitioner conceives as an improper argument, I say it reaches the constitutional dimensions and that we would deprive to do processes result.

Chief Justice Warren E. Burger: Mr. Smith, let me ask you what is obviously hypothetical question to prove that the impact to this kind of statement on the jury.

Suppose and instead of putting it the way he did he had said after his first sentence.

I do not what they want you to do by way of a verdict, but then went on, but I suggest to you when you get in the jury room, you ask yourselves whether what they really want is that you find him guilty of something a little less than first-degree murder.

Would you thought that was all right?

Mr. Paul T. Smith: I don’t think it would have reached the dimensions that his argument made into that.

I would not -- I don’t approve of that type of an argument but I don’t think I could quarrel with that to the extent that I am quarreling of this argument.

Chief Justice Warren E. Burger: Your suggesting that it would be an impropriety to pose the kind of questions the jurors should consider?

Mr. Paul T. Smith: Oh, no.

No, I think that’s perfectly proper Mr. Chief Justice.

I do think that had he said that the evidence or the argument by the defense counsel is such as to lead you to believe that this is all your case of manslaughter which of course it couldn’t be in assistance because it was a joint venture and this was a first-degree murder case, there wasn’t any question about it.

It was a joint venture and if he was guilty, he was guilty at least to the same degree as the others who actually plead to guilty to the second-degree murder and I do not see how they could have been on manslaughter unless the jury get where he --

Chief Justice Warren E. Burger: Well, isn’t it quite common for the jury to find the triggerman as he would be called guilty of a higher degree of homicide than the driver of the car for example? Not --

Mr. Paul T. Smith: Well, it is --

Chief Justice Warren E. Burger: Perfectly a common everyday and every state in the union?

Mr. Paul T. Smith: Yes, it does.

Chief Justice Warren E. Burger: Now,so that you have a reasonable case for lesser offense in first-degree murder here?

Mr. Paul T. Smith: Well, frankly I wasn’t thinking of those terms of manslaughter or anything else and certainly by the very fact that we didn’t make any attempt to negotiate a plea.

Where as a prosecutor points out in his brief, he says it would make not a width of sense to refuse to give Dechristoforo at least the same type of consideration as they gave to the triggerman to Gagliardi and the other fellow.

To get back to you, first now that I think more of, but that I think Mr. Chief Justice that is so.

I think that perhaps in a trial of the case, an advocate does have in mind the possibility that if the jury is going to come in with the guilty, that of be the least possible degree and I think that the statement as you put.

If you have made that statement of the jury, I don’t think that be any quarrel.

Chief Justice Warren E. Burger: You mean as to the question they should ask themselves?

Mr. Paul T. Smith: I don’t think that be any quarrel. But I think when he says I quite frankly believe this.

I quite frankly think that he seeking something other than first-degree murder.

I think that a jury seating there has every reason to believe that he knows of something that they don’t know about and that that is testimony and that we would deprive the cause of the right of confrontation but --

Chief Justice Warren E. Burger: A life or some I presume this case?

Justice William O. Douglas: Yes.

Mr. Paul T. Smith: And I might point this at -- although he says in his brief, the petitioners saying in their brief that it doesn’t make or would of sense that they wouldn’t have offered him Dechristoforo something lessen first-degree murder.

But at that time of trials, it made a good deal of sense to the prosecutor because he argued to the jury and he pointing to Dechristoforo more than anybody else I think he is more reprehensible than the other two combine because he was the man who supposedly he was the friend of Lanzi, the victim.

So during the trial, he had an appeared that Dechristoforo was the real bad man on this situation that the two triggermen went the bad fellows and so that the posture of trial was that he wouldn’t give Dechristoforo a plea of second-degree except a plea of second-degree.

In short, he and any compound of it after the objection was made to the argument by saying to the jury I believe that there is no doubt on this case, none whatsoever.

Now, all I am arguing to this Court is that the statement made by the prosecutor goes beyond a technical error in arguing.

It was a false statement.

It is tons amount to the introduction of false evidence and that at this Court should regard it in the same fashion that has regarded of the Alcorda case, Napue, Miller and Pate Giglio.

A false statement made by the prosecutor which had at least created an impression in the minds of the jury that the defendant here had offer to plead guilty and of not.

I just like that false by saying that it was some reference to provocation.

I would submit that that is a suspicious argument.

There was no provocation.

We have seth forth in our brief the opening and the fact is that in the opening as Mr. Justice Rehnquist pointed out a lot of us make openings which we can’t this is severely establish but virtually every manner stated in the opening was either reproduce an evidence or there was a proper proof.

For example, I offer to prove that Dechristoforo when he fled and fled to his grandmother’s house, fled because he was unfear of his life and we made of that put proof on that.

The fact that the Court didn’t permit us to introduce that evidence certainly should not be use as an argument for provocation.

Chief Justice Warren E. Burger: How will you going to prove that Mr. Smith?

By which kind of evidence?

Mr. Paul T. Smith: Well, grandmother was prepare to testify the he came running up to the house and the offer of proof was nana.

They have just killed whatever Lanzi’s first name was, they just killed Joey and I am afraid they are going to kill me and I am going to hide.

Justice William O. Douglas: Did he speak to that effect in his unsworn statement?

Mr. Paul T. Smith: He did not use that language as I recall it Mr. Justice.

He did say --

Justice William O. Douglas: Did he not indicate he was afraid of his life?

Mr. Paul T. Smith: That is correct.

Justice William O. Douglas: So it came into the jury in any event to his mom?

Mr. Paul T. Smith: That’s right but not as evidence.

The restatement by first accuse first-degree murder is an unsworn statement.

Justice William O. Douglas: Yes.

Mr. Paul T. Smith: It is not we got this evidence.

Chief Justice Warren E. Burger: If the prosecutor argue that if Dechristoforo really had been innocent.

If his claim was bonafide in this respect that he was merely a passenger that he would’ve welcome the presence of the officers and immediately told the officers the whole story of what had happened?

Mr. Paul T. Smith: Well, he did argued that and I might point out that the evidence against Dechristoforo was that he was in the automobile at the time they found a man dead.

That they made false statements to Officer Car concerning his own identity, concerning the identity of the man in the front seat of the automobile the deceased and that he then fled.

The facts were that Officer Car in a prior hearing on a probable cost against Oreto on the roof stated that was Oreto who would given the false name of the man in there.

That it was Oreto who had made the false statements which at this trial he was attributing to Dechristoforo.

This is not a case where the evidence was overwhelming by any means.

Justice Byron R. White: When the evidence have moved at all?

Mr. Paul T. Smith: None at all.

Justice William O. Douglas: That is it what?

Mr. Paul T. Smith: Motive.

The fact the evidence was that Dechristoforo and Lanzi were closed personal friends and that was brought up by the Commonwealth itself because I say I am sure that Mr. Mills didn’t intent to mislead the Court by with respect to the guns.

There was nothing to tied Dechristoforo up to the derringer that was on the back seat.

There was no evidence that he had never own the gun in fact there was uncontradicted evidence from a police officer in a district, from friends that this young men had an extra reputation not only for honesty but for non violence in the state house where he’d worked as page for 7 or 8 years just prior to getting this other job and the community where he lived.

The only evidence that was involved in a gun was the argument made by the prosecutor. When he said and there was no foundation for this, you know these people.

These are the kind of people who carried guns that can never be identified and never be traced.

I don’t believe that the argument picking out in argument that was improper and here will many improper arguments in and on themselves would warrant this Court to sustain the Court of Appeals.

But I do believe that there was a false argument made here.

We knew it was false and it was done for the purpose of misleading that jury and the jury was misled.

Chief Justice Warren E. Burger: Thank you Gentleman.

The case is submitted.

Featured:

Loper v. Beto - Oral Argument

Thu, 23 Aug 2012 18:18:50 +0000

Case:

Loper v. Beto

Media File:

70-5388_19720113-argument.mp3

Related Transcript:

70-5388_19720113-argument

Transcript:

Argument of John T. Cabaniss

Chief Justice Warren E. Burger: Arguments next in Number 70-5388, Loper against Beto.

Mr. Cabaniss you may proceed.

Mr. John T. Cabaniss: Mr. Chief Justice and may it please the Court.

This case involves the constitutional rights of a criminal defendant in circumstances where he has been affected by a collateral use of prior convictions, presumably void under Gideon.

In this case, the collateral use was impeachment of testimonial credibility.

Loper was convicted in November of 1947 in Harris County Texas of the offense of statutory rape of his eight year old stepdaughter.

At his State Court trial, the prosecution's witness, the only one to identify Loper as the violator was Betty Fay Dorothy and she indicated he was guilty, he did it.

Otis Loper took the stand to testify in his own defense.

He denied complicity, denied guilt of the offense and on cross-examination, the State was allowed by the Court to elicit from him details regarding prior convictions that he had suffered in the States of Mississippi and Tennessee.

There were four prior felony convictions in all and the State brought out the details as to the term of those offenses, where they occurred, that they were all for burglary.

In the District Court the hearing below, evidence was introduced regarding these prior convictions.

This evidence consisted both of the testimony of Loper as for circumstances surrounding those convictions and also consisted of certified records that have been obtained from the Courts in those proceedings which reflected in most instances that the defendant had appeared in the person or he appeared in his own proper person or otherwise silent regarding the presence or absence of counsel.

It is Loper’s contention that the evidence thus introduced, un-contradicted by the State renders those convictions presumably void under the mandate of this Court in Gideon.

Justice William H. Rehnquist: Mr. Cabaniss, Judge Connelly found as a fact in the District Court that he refused to believe Loper’s testimony that he had not been previously represented?

Mr. John T. Cabaniss: He certainly did Your Honor.

Justice William H. Rehnquist: In the Fifth Circuit?

Mr. John T. Cabaniss: And he refused to believe anything Mr. Loper said, there is no question about that.

Justice William H. Rehnquist: So you are asking us to offset that factual determination?

Mr. John T. Cabaniss: I am, Your Honor on this basis.

Other Courts have indicated in similar circumstances that it seems where the defendant, the one who is convicted introduces testimony to the fact that he did not have counsel, was not represented by a counsel and then he introduces evidence to corroborate that testimony, in this case, certified records of the State Court proceeding, we would contend that those records are sufficient to carry his presumption that he in fact was not represented by a counsel and he had not waived his right to counsel.

And that the Trial Court’s action in disregarding that, the fact that the burden then shifted to the State to prove that he had waived counsel, we believe that cannot be upheld, that is out contention.

Justice Potter Stewart: We have granted certiorari on this case that we give it a limited grant of certiorari?

Mr. John T. Cabaniss: Yes sir.

You did, Your Honor.

There were seven points, in all there were six points I believe, raised in the petition for cert.

This is the only one upon of which the petition was granted.

The --

Justice Potter Stewart: Right and do you say this is the only one.

What is the -- specifically as to the question on which we granted?

Mr. John T. Cabaniss: The issue presented Your Honor is whether on the facts presented by this record.

Justice Potter Stewart: Are you reading this now from the petition for certiorari?

Mr. John T. Cabaniss: No I am not.

Justice Potter Stewart: I am asking you to be quite specific, if you will.

Mr. John T. Cabaniss: The -- does the use of prior void convictions for impeachment purposes deprive a criminal defendant a due process of law where their use might well have influenced the outcome of the case.

Justice Potter Stewart: Under that question, it is not open to us to decide whether not the prior convictions were void, is it?

Mr. John T. Cabaniss: Well Your Honor, I had believed that why --

Justice Potter Stewart: I have got to be of help to you not --

Mr. John T. Cabaniss: It seems to me Your Honor that again we are proceeding in this case, we have throughout from the beginning proceeded on the basis --

Justice Potter Stewart: Much the way decided it -- Taken case to grant certiorari on was whether not the use of prior void convictions for impeachment purposes violated the rule against Burgett against Texas, is that it?

Mr. John T. Cabaniss: I will proceed to that question Your Honor.

Mr. Justice, excuse me.

Justice Potter Stewart: We did not decide the Taken case of whether or not the issue or to consider the issues of whether or not these prior convictions were void.

We limited the grant of certiorari, did we not?

Mr. John T. Cabaniss: I am sorry I did not understand your question Mr. Justice.

Justice Potter Stewart: I see.

Mr. John T. Cabaniss: I will proceed to the question of Burgett.

We have – we had utilized Burgett in the District Court and in the Fifth Circuit without success.

We had contended throughout that the Burgett rationale applies to Mr. Loper’s circumstances and that the use against him of the prior void convictions to impeach his testimonial credibility was a violation of that rationale.

Now, the State contends and the Fifth Circuit has held that we go too far, that impeachment, that Burgett itself involved enhancement of punishment and that impeachment of testimonial credibility is not -- it goes only to credibility.

It is not merely so serious as enhancement which may add years of imprisonment to the sentence of a defendant.

But there are number of factors we have relied upon in asserting that Burgett is not so limited.

Most importantly, although Burgett did involve convictions of alleged in recidivist counts, it involved four prior convictions alleged and a Texas indictment.

The fact of the matter is that Burgett itself involved no enhanced punishment.

The evidence introduced indicated that the Texas conviction was void on its face.

It was -- as our (Inaudible) was never introduced, the Tennessee conviction, it was introduced in evidence, was held to be presumptively void.

The Court withdrew all evidence of those and instructed the jury not to consider the prior convictions for any purpose.

The defendant Burgett was convicted and he was sentenced to ten years imprisonment, the maximum for the offense involved was 25 years.

So we submit that the constitutional precept that was established was on the facts of Burgett, not one that was limited to a situation where enhancement occurred as the State and the Fifth Circuit would have us believe.

Chief Justice Warren E. Burger: Well, in the Burgett case what was the purpose of the introduction of the prior convections, let us forget the consequence for the moment, what was the purpose of their introduction?

Mr. John T. Cabaniss: The purpose Your Honor was under recidivist counts.

Chief Justice Warren E. Burger: Yes, to enhance the punishment.

Mr. John T. Cabaniss: That is correct.

Chief Justice Warren E. Burger: Now, whether the jury did or did not apply it that way is as you suggest is really not the issue, is it?

Mr. John T. Cabaniss: The point, I would make Your Honor though is it seems to me that in the absence of enhancement, the result in Burgett was that the jury was aware in its deliberations upon the primary substantive issue of guilt of four prior void convictions.

Now, what difference does it make if that was done under enhancement counts or if it was done to impeach the credibility of a witness who took the stand to testify in his own defense.

If the convictions were void and the jury is made aware of those convictions then rationale applies to permit a conviction obtained in violation of Gideon against Wainwright to be used against a person either to support guilt or enhance punishment for another offense is to erode the principle of that case.

Justice Potter Stewart: The petitioner was the only defense witness, was he not?

Mr. John T. Cabaniss: That is correct Your Honor.

Justice Potter Stewart: And daughter or stepdaughter was the only prosecution witness as to the --

Mr. John T. Cabaniss: No, Mr. Justice.

The prosecution also put on medical testimony from a Doctor Weber (ph) which simply established that apparently an offense had occurred and he stated it was appeared to be relatively recent.

Justice Potter Stewart: And the -- did the jury set the sentence here?

Mr. John T. Cabaniss: I believe so Your Honor, 50 years.

Justice Potter Stewart: That might be of some importance.

Mr. John T. Cabaniss: I believe the jury did make the sentence, Mr. Justice.

Justice Potter Stewart: But within what bounds of discretions, do you know?

Mr. John T. Cabaniss: Two years to death.

Justice Potter Stewart: Two years to death and the jury said 50 years and then on the text of procedures the trial judge, the sentencing judge obligated to take the jury’s assessment of the sentence.

Mr. John T. Cabaniss: Mr. Justice, I am not aware of the answer to that question.

Justice Potter Stewart: This case did.

Mr. John T. Cabaniss: I believe that is the answer.

I think he was convicted by the jury and sentenced.

Justice Potter Stewart: The jury could have sentenced him to his -- even on fact finding ability to a short term as two years?

Mr. John T. Cabaniss: I believe that is the minimum in Texas for that offense.

Justice Potter Stewart: So it is your submission that both branches of Burgett are involved here and those -- the finding of guilt and the imposition of the sentence, the enhancements of --

Mr. John T. Cabaniss: The fact that it was harmful, that's what Your Honor.

To proceed with the fact of impeachment, Mr. Chief Justice has raised the point that they were in an enhancement context, but we have tried to pull it out that we have a criminal defender who takes the stand in his own behalf.

His credibility is a material factor to his guilt or innocence.

If his credibility is attacked by evidence of prior convictions that are void under Gideon, such that the guilt was not there reliably determined, the argument must be made that any conclusion of untruthfulness by a jury of the impeached witness is equally unreliable.

So it seems to us to follow that the impeachment evidence of that nature tends directly or indirectly to support guilt by causing the jury to disbelieve the testimony of Loper and then proceed along the lines where the prior void conviction is used for that purpose then the defendant clearly under Burgett suffers anew from the deprivation of that Sixth Amendment right.

Now we are supported in our conclusion as to the meaning of Burgett by a number of cases.

They are cited in the brief and they are applicable to impeachment not just enhancement situations, I note in particular Gilday against Scafati which one of the first to the First Circuit, was one of the first to -- its opinion is particularly lucid.

Also the Ninth Circuit in Tucker against United States, I note that this Court on Monday of this week, disposed of that case by remanding in a situation where the sentence had been, I wouldn't say enhanced, it was the maximum sentence, they had reversed because of the possibility of prejudice resulting from prior convictions there involved.

We are not disparaged by that case at all.

Justice Potter Stewart: Well, I should not think you would be.

Mr. John T. Cabaniss: We are not.[Laughter Attempt]

The State --

Justice Potter Stewart: Do you think that case bears on this probability?

Mr. John T. Cabaniss: No, Your Honor, except from the standpoint that I would certainly -- I like the language about the sentence being based upon this information of the constitutional magnitude, I would like to utilize that one concept.

Justice Potter Stewart: Well, is not -- in that case the Court of Appeals for the Ninth Circuit as you have just told us disagreed with the Court of Appeals for the Fifth Circuit in the present case.

Mr. John T. Cabaniss: That is correct Your Honor.

Justice Potter Stewart: We did not indicate any disapproval that we have the Ninth Circuit’s view then went on to find it was harmless error in that case.

Mr. John T. Cabaniss: The Ninth Circuit specifically decided that Burgett included impeachment, but did on the facts presented by that record to go on to determine that it was there harmless error.

Justice Potter Stewart: And we have affirmed the judgment?

Mr. John T. Cabaniss: That is correct.

The State in its brief cites two cases that I must mention.

These cases are Harris against Nelson and Walder against United States.

These were impeachment cases and the State asserts that these can be relied upon as limiting the application of Burgett.

It should be kept in mind that this is not a case where the defense counsel is part of its trial strategy, interviews the invalid prior or interviews the prior convictions to soften the blow so to speak, that is often done nor is this a case for the record will show that Loper, to boast for his credibility denied that he had never been convicted of crime on direct examination.

The first time these convictions were brought out was by the State in its cross-examination and it is then on this basis that neither Harris nor Walder would conclude that Burgett would not apply to the impeachment context situation -- Harris and Walder were both concerned with situation of perjury.

Chief Justice Warren E. Burger: But there was no occasion in 1947, when this man was tried, I suppose for him to have any reason to challenge the nature of the convictions, was there?

Mr. John T. Cabaniss: Not at all Your Honor.

The right was not yet decided and that is of course the reason why it would be fruitless to search the record for an objection on the constitutional basis here involved.

The District Court pointed that out.

Chief Justice Warren E. Burger: But your contention is that when you are in the District Court now in 1970 or 1971, 1970 when you were there on the habeas corpus proceeding.

Mr. John T. Cabaniss: 1969, Your Honor, Mr. Chief Justice.

Chief Justice Warren E. Burger: 1969 was it, that at that time you do not have the burden of proving that the convictions were obtained without counsel, that you merely establish it by his testimony that he did no have counsel.

Mr. John T. Cabaniss: Mr. Chief Justice, I did not mean to imply that the testimony of the defendant as to those facts is all that is needed, I do not believe that is the case.

I am saying that in this instance, that was not all that was introduced.

The testimony that Loper gave which Judge Connelly discredited was, we would like to -- collaborated by the certified records introduced at the trial reflecting --

Chief Justice Warren E. Burger: Yes, I have heard what you had to say about them would you -- are you telling us that that strong collaboration or solid collaboration of that testimony?

Mr. John T. Cabaniss: No, Your Honor, well it is -- I am saying that it is corroboration.

The aspect is that we are not -- we do not have a record like Burgett had, one in which there were two versions of a conviction in Tennessee which were cited in one of them that the defendant -- the candidate's prosecutor and the defendant in person and without counsel and the second version being simply the defendant in person.

We do not have two entries involved here, but all of the entries involved, none of them recite that he appeared with counsel and it can be fairly inferred from at least one and perhaps others that the wording used reflects that he did not have counsel.

For example in the 1940 conviction the entry that would appear was -- came the district attorney who prosecutes for the State and came also the defendant in his own proper person, both of whom announced ready for trial.

Chief Justice Warren E. Burger: Well, is it possible that if we agreed, if we decided to the single question presented here in your favor, namely that a prior conviction now void under Gideon may not be used for impeachment?

Suppose that rule was established, could we decide this case, resolve this case without sending it back to have a determination of the status of those convictions, four prior convictions

Mr. John T. Cabaniss: Your Honor, under the principle that I have put forth a little bit earlier, I would admonish the Court that perhaps it could.

What I am suggesting is, is that although Judge Connelly discredited his testimony the rights involved here were spoken about in Burgett in no uncertain terms.

The records in this case are similar to the record that was introduced in trial in Burgett insofar as the in person aspect.

The records do not state one way or the other whether there was or was not counsel.

The Court might determine that in circumstances where the defendant has suffered this conviction has suffered impeachment or enhancement contrary to the dictates of Burgett and where he introduces in addition to his testimony records that are silent concerning either the existence of counsel being there or any waiver of counsel, if that is sufficient under the circumstances to shift to burden.

I was speaking about Harris and Walder.

I only pointed out that it seems to me they are distinguishable clearly as Mr. Chief Justice said in Harris, it does not follow from Miranda that evidence inadmissible on the prosecutions’ straight case in chief for all purposes provided of course that the trustworthiness of the evidence satisfies legal standards.

We would suggest that the Miranda violations there involved in the illegal search and seizure in Walder are different from the Sixth Amendment rights here involved with respect to the prior convictions which are inherently unreliable.

They are not trustworthy.

In addition the other basis of course is the fact that both of those cases, this is not one where Loper sought to commit perjury or he testified to try to boast his credibility of never having been convicted prior to that time, so that does not furnish a basis that no perjury was involved.

The State at one point has pointed out that this case should not be reversed for the -- from the standpoint that there was no prosecutorial misconduct involved here.

I was simply note in passing that I believe this issue is disposed of by Chief Justice Warren in his concurrence in Burgett in which he noted that it is not simply errors based upon misconduct that can be reviewed by this Court.

It is the effect of those errors whether well intention or not on the constitutionally protected the rights of the criminal defendant which is all we are concerned with here.

I would like to speak to the issue of the harmless of the error that was involved.

As I previously pointed out there were two and this is for the prosecution in this case, but the only testimony relied upon to establish Loper as the violator of this offense was that of the 8-year old child, Betty Faye Dorothy.

Loper took the stand --

Chief Justice Warren E. Burger: Are we concerned that the factual issue on that score now under the question, limited question of this grant?

Mr. John T. Cabaniss: It seems to me Your Honor that the last part of that question whether use might well have influenced the outcome of the case, it occurred to me that that might indicate that the Court would consider whether or not in the circumstances here presented, the prior convictions introduced did in fact influenced the jury in its determination.

I am suggesting most certainly that they did.

It was a -- in essence it was a case that was built upon a credibility determination.

If the jury had believed Loper’s verdict of the facts that occurred that morning, they would have been compelled to acquitting.

They did not believe that they would have convicted him and in that background, the prejudice, the influence that resulted from introduction of the invalid priors before the jury that refers to the details of the offenses in that posture on cross-examination at that time, it seems to me that there is no way to conclude that the error involved was harmless error, that it was not harmless beyond a reasonable doubt.

Justice Byron R. White: Well, was each one of the priors attacked?

Mr. John T. Cabaniss: No, Your Honor.

Justice Byron R. White: And how about in the -- how about in this record?

Is there evidence of the invalidity of the prior?

Mr. John T. Cabaniss: There was one prior --

Justice Byron R. White: Was not one other --

Mr. John T. Cabaniss: -- prior conviction, 1932 conviction on the name of Milton Cummings as to which there is no evidence in the record at all.

Justice Byron R. White: No evidence and for what was that conviction?

Mr. John T. Cabaniss: The conviction was for burglary, Mr. Justice.

Justice Byron R. White: And the five year penalty?

Mr. John T. Cabaniss: No sir.

Two years.

Justice Byron R. White: Two years, so that -- there is not attack on that?

Mr. John T. Cabaniss: No.

There is no challenge in the record.

No record at this time.

Justice Byron R. White: And he was impeached on that as well as three other?

Mr. John T. Cabaniss: Yes, he was.

Justice Byron R. White: And in connection of one of the others, the record is silent as to whether he was (Voice Overlap) --

Mr. John T. Cabaniss: That is of 1931 conviction in (Inaudible) Mississippi at which time he was 17 years of age, the sentence was six months.

That was the earliest conviction.

Justice Byron R. White: That is the record is silent.

On the other two he said he appeared in his own person.

Mr. John T. Cabaniss: That is correct.

One said in person and one said in his own proper person, that is correct.

The State apparently in its brief as to this latter point, the harmfulness of the error would argue that the State was only obligated to establish a prima facie case and it did so and that therefore there was no harmful error.

But in doing so it would also place the burden upon Loper to show that the error was harmless error or that is that was -- where burden proof is issued upon Otis Loper.

That as I construe the cases it is certainly not the case.

The State benefited from the transgression and accordingly, it has to prove to show that the tainted evidence that was introduced to the jury did not effect or influence the jury’s verdict.

We do not believe that it here can.

May I save time?

Chief Justice Warren E. Burger: Very well Mr. Cabaniss.

Mr. Darden.

Argument of Robert Darden

Mr. Robert Darden: Mr. Chief Justice and may it please the Court.

The petitioner has misrepresented the question and issue presented to the Court now for review.

In the 1947 trial for rape, the State on cross-examination had Otis Loper to testify about four prior convictions.

Three in the State of Mississippi, one in the State of Tennessee and this was for impeachment purposes.

Now all four of these convictions have become final and there has never been any effort to set any of these cases aside.

These convictions were valid for all purposes and will remain valid until set aside by the proper closed conviction of state or federal proceedings.

Justice Byron R. White: Well, why is this not a proper proceeding in which to set them aside?

Mr. Robert Darden: Your Honor, the -- getting to this in the District Court in 1969, the writ of habeas corpus that was filed was just to get relief from the 1947 Texas conviction.

Justice Byron R. White: And -- but underlying that claim was invalid prior?

Mr. Robert Darden: In this, he asserted that the four prior convictions were void.

Justice Byron R. White: Were here that -- excuse me -- was that not -- excuse me and he introduced evidence to -- as much as he had to prove that, namely about two of them, the transcript to the proceedings or the docket entries, about three of them, he did that?

Mr. Robert Darden: Yes.

Justice Byron R. White: And nothing about the fourth?

Mr. Robert Darden: That is right, Mr. Justice.

Justice Potter Stewart: Was that not true in Burgett that they have not been officially set aside by some other and conclusively set aside by some other Court before the proceedings begin in Burgett, is that not true?

Mr. Robert Darden: Yes, Mr. Justice.

However, in our position --

Justice Byron R. White: So again, why could not the Court here have said, well, these -- we find or the Court finds that these priors were -- prior convictions were invalid since he pleaded guilty or was convicted without counsel?

Mr. Robert Darden: Well, as was held by the District Court, the District Court's said that the convictions were valid.

Justice Potter Stewart: Alright.

Mr. Robert Darden: Fifth Circuit pointed out in their opinion that since the passing of Gideon versus, I mean, the handing down of the Gideon versus Wainwright which was six years prior to his going to trial in 1969, he had done nothing towards getting this removed from his record.

Justice Potter Stewart: But under Burgett, he did not have to?

In Burgett he had done nothing either?

Mr. Robert Darden: That is true and we are saying Burgett does not apply.

Justice Potter Stewart: Well it bears on the point you are now making, does it not?

Maybe the overall decision does not apply, but in Burgett there - he had done nothing independently until he initiated the Burgett litigation to assert that the priors were invalid, is that not true or am I mistaken?

Mr. Robert Darden: Yes sir.

You are correct.

Justice Potter Stewart: Yes.

Mr. Robert Darden: In that particular case, what I understand, this was used for enhancement and in order for them to bring in the original indictment, they also alleged the two or three priors which was a part of this proceeding.

In our case this was for impeachment purposes alone and it was not necessary to show, although that these were valid convictions.

And in the State of Texas, at that time it was permissible to impeach any witness that took the stand on prior convictions or indictment, information or complaint.

So in this particular case if they had only brought in the prior indictments which he would not have had an attorney either, we could have been impeached him in Texas in 1947.

This law was not changed until 1951.

Justice William H. Rehnquist: In Texas then you do not have to show a final judgment of conviction or at least you did not at that time to use for impeachment?

Mr. Robert Darden: In 1947, no, Mr. Justice.

Justice Thurgood Marshall: So in 1947, if a man was indicted and acquitted, he has to show to indictment?

Mr. Robert Darden: Yes, Mr. Justice.

Unknown Speaker: And there they got to it first?

Justice Potter Stewart: But whatever -- whatever you could have shown, the fact is here, you did purport to show previous convictions, is that -- not as just indictment, you did not say they indicted for this, actually you said you have been convicted out of you -- through cross-examination, is that not correct?

Mr. Robert Darden: Yes, Mr. Justice.

Justice Thurgood Marshall: And you say the difference between doing it in this case and when it is solely for enhancement, is that right?

Mr. Robert Darden: Yes, Mr. Justice.

Justice Thurgood Marshall: What is the difference when a jury thinks the time of sentence, what would that be?

Mr. Robert Darden: Well, this is -- our contention --

Justice Thurgood Marshall: In a case, is it true from two to life, two years or life in this case?

Mr. Robert Darden: Two to death.

Justice Thurgood Marshall: Two to death?

Mr. Robert Darden: Yes, Your Honor.

Justice Thurgood Marshall: And the jury can fix him two to death and if they got different from where the jury can enhance the sentence?

Mr. Robert Darden: It is amended to enhancement.

If they find that prior convictions, rather it is mandatory.

Justice Thurgood Marshall: Mandatory, but this is permissible?

Mr. Robert Darden: Yes, Your Honor.

Justice Thurgood Marshall: And he did get 50 years?

Mr. Robert Darden: Yes, Your Honor.

Justice Potter Stewart: Are you familiar with the Tucker case decided this week?

Mr. Robert Darden: No, not the decision, I think I have read this prior to this.

Justice Potter Stewart: Well, if you read the Court of Appeals decision that was affirmed here this week by this Court and that held that the -- that decision of the Court of Appeals affirmed here, required that the case go back for re-sentencing because the sentencing body in that case, the judge had -- he gave consideration to prior convictions that were invalid under Gideon against Wainwright.

Now, here the sentencing body was the jury and it certainly had before it these prior convictions, did it not?

Mr. Robert Darden: This is true, Your Honor.

Justice Potter Stewart: So that assuming what I say is correct description of the Court of Appeal’s decision in Tucker and this Court’s decision, would you not think that at least this should go back for re-sentencing and under Texas procedure I suppose that means a new trial because the guilt, the jury does -- performs both functions in Texas, is that right?

Mr. Robert Darden: Yes, Your Honor.

Chief Justice Warren E. Burger: Does it -- the jury still perform the function of the sentencing as it did in 1947 when this case was tried?

Mr. Robert Darden: Well, the statute has been changed to permit the petitioner or the defendant to make a request to have a dual trial or to have the judge sentence him depending on what he wants to do.

Chief Justice Warren E. Burger: Oh!

If it were sent back for re-sentencing now, what would be the mechanism of re-sentencing under present Texas law?

Mr. Robert Darden: In essence, probably he would be given another trial or permitted to plead for any sentence less than 50 years.

Chief Justice Warren E. Burger: He would have the option of a trial on penalty only?

Mr. Robert Darden: Of the -- yes sir.

What we are saying that Loper is trying to accomplish both from the lower courts and in this Court, well in the lower court is that this Court being petitioned to set aside the Texas conviction and the three Mississippi convictions and the one Tennessee conviction.

Respondent submits that this Court in considering this question presented by the petitioner must assume or they must void the Mississippi convictions, the Tennessee convictions and in order to reach the question presented.

The question presented and that which the Court has been requested to consider is purely hypothetical, there is no case in controversy involving the prior void convictions for impeachment purposes, the prior convictions involved were valid and remain so until set aside the proper proceeding.

Under the argument of appointment of counsel prior to Gideon versus Wainwright which was decided in 1963, the State of Tennessee and the State of Mississippi required appointment of counsel for indigents upon request and the record is silent in this case as to whether or not Loper was indigent and that the Court had knowledge of this and the record is silent as to whether or not he had made a request and that this request had been denied.

On the point of impeachment, Otis Loper took the stand to deny the assault.

He also denied that anything was wrong with the complaining witness, when he left for town and that if anything had happened to the complaining witness, this was done by the Maggie boy (ph).

In this, we feel that Harris versus New York is applicable in that when a defendant takes the stand to testify, he is to stay with the truth and be accurate.

Not only did Loper deny the assault, but it also gave an alibi that nothing was wrong with the complaining witness which we found not to be true on the testimony of Dr. Weber and also that if anything had happened such as the assault, it was the Maggie boy.

Chief Justice Warren E. Burger: Well, here in this case there was no challenge to the impeaching material.

The Harris case was one in which the very material used to impeach him was being challenged and was at issue.

I have difficulty seeing how this is like Harris.

Mr. Robert Darden: Well --

Chief Justice Warren E. Burger: They both happen to involve impeachment?

Mr. Robert Darden: One was using the statement, prior statements that did not come under Miranda.

Chief Justice Warren E. Burger: That is right.

Mr. Robert Darden: And if we used the same logic here, we are talking about un-counseled convictions introduced to impeach a witness at the State -- in the stand.

Justice William J. Brennan: Mr. Darden, I wonder if I correctly understood your answer to the Chief Justice when he asked you if this went back for re-sentence, what the procedure is that now would be applied, what did you say was --?

Mr. Robert Darden: It would depend on what the defendant wanted to do.

Whether or not he wanted to plea for a lesser sentence or wanted a new trial.

Justice William J. Brennan: Your mean that if -- it is proper to say it had to go back for a re-sentence, the petitioner would have the option to say, I want a new trial rather than (Voice Overlap)

Mr. Robert Darden: Well this would be -- Your Honor I think --Mr. Justice this would be worked out with his attorney, him and the prosecutor.

Justice William J. Brennan: But he has a choice, although we send it back only for re-sentencing, he has the choice of having a new trial, is that right?

Mr. Robert Darden: I think this is right based on the agreement between counsels.

Justice Byron R. White: Well, yes, let us assume that we said that constitutionally his sentence cannot stand, but the verdict of guilty may and all Texas has to do is to is to re-sentence him?

Mr. Robert Darden: And this would be a nunc pro tunc judgment in it.

Justice Byron R. White: Well, the sentence would be invalid, but with conviction would not be.

Let us assume the Court held that.

Would Texas -- under Texas law, would he have to have a new trial under --

Mr. Robert Darden: No.

Justice Byron R. White: -- procedures just for re-sentencing?

Mr. Robert Darden: No.

This could Your Honor, could come under nunc pro tunc judgment.

Unknown Speaker: An appearance before a judge, the sentence was up in this (Inaudible)?

Mr. Robert Darden: Yes sir.

Chief Justice Warren E. Burger: He has been paroled now in this?

Mr. Robert Darden: As of September, yes, Your Honor.

Justice Lewis F. Powell: Mr. Darden, do I understand you to say that one or more of prior convictions (Inaudible) in the record in this has not shown whether or not disposition of -- waived the right of counsel?

Mr. Robert Darden: This is correct, Your Honor.

There is nothing in the record that show that he even made the request as required in the State of Tennessee and in the State of Mississippi at that time or that he was indigent and that the Court had knowledge of it.

Justice Lewis F. Powell: That is not (Inaudible)?

Mr. Robert Darden: Well, he came in, in the hearing in 1969 in Houston in the District Court and said that he could not afford an attorney, but the cases in the statute in Tennessee and Mississippi which is pointed out in my brief, states that they have -- have knowledge of his indigents and that he makes a request for counsel, this the record is silent on.

Justice Lewis F. Powell: There was no evidence that as to whether or not he was offered counsel and intelligently annoying they waived the right to counsel?

Mr. Robert Darden: The record is silent.

Justice Lewis F. Powell: Is silent on that?

Mr. Robert Darden: Yes, Your Honor.

Justice Potter Stewart: Well, what did he say?

Did he say anything about that at the habeas corpus?

Mr. Robert Darden: The only think, as I remember Mr. Justice that he did not waive counsel, he did not have funds to employ a counsel.

Justice Potter Stewart: So that record does contain?

Mr. Robert Darden: Well, this is just a statement in the District Court from that standpoint.

Justice Potter Stewart: Right, under oath, I assume?

Mr. Robert Darden: Yes.

But the District Judge did not believe any of his testimony and held that these convictions were valid.

Justice Potter Stewart: Of course the Court of Appeals did not -- it's a little ambiguous, the Court of Appeal’s opinion, but the Court of Appeals did proceed to decide the legal question, did it not?

It just said we are not -- and we did -- we hold that these prior convictions even if invalid can be used for impeachment purposes?

Mr. Robert Darden: Yes.

Justice Potter Stewart: Did it not?

Mr. Robert Darden: We might add under the impeachment, any time a witness takes the stand, his character is an issue.

The federal rule as I have said permitted prior convictions for impeachment purposes in Texas in 1947, permitted much further.

Chief Justice Warren E. Burger: But Mr. Cabaniss though is raising perhaps some alternatively a narrower question and that is that in a case such as in Texas in 1947 where the jury imposes the sentence rather than the judge has in most of the jurisdictions, but in Texas in those circumstances, then the evidence of impeachment falls within the reach of what the Courts have said is not permitted, that it goes to enhance the punishment or at least he argues that no one can say that it did not increase the punishment?

Mr. Robert Darden: We take the position that it did not, Mr. Chief Justice, based on the facts.

In their brief, they point out that only the eight-year old is the only one that implicated Otis Loper, the defendant.

Unfortunately, in these type of sex crimes there is only two people around, but she also testified that this is the same thing that he had done the year before when she was living with her grand parents in Alabama and that he threatened her and she did not tell them what had happened and finally told them that she had fallen on stick to hurt herself.

This is the testimony came out and with this along with the fact that he was not be, the jury has now that a prior offense had happened which could justify the 50 years.

Only thing he did was “no I did not do it,” but if it happened, the Maggie boy did it.

There is nothing in the record that shows that the Maggie boy was even present at that house on August of 1947 or that the boy was present that Friday before.

It is our position that he has not attacked or removed these convictions in the proper court by going back to the convicting court.

Therefore, the ruling in the State, I mean, in the Federal District Court and the Fifth Circuit should be upheld.

Chief Justice Warren E. Burger: Thank you, Mr. Darden.

Mr. Cabaniss do you have anything further?

Rebuttal of John T. Cabaniss

Mr. John T. Cabaniss: One thing, Mr. Chief Justice.

I want to correct what may have been a misimpression or maybe I am not reading the Court correctly.

You have spoken about sending the matter back for re-sentencing which appears to me to be an indication of limiting the concept to Burgett to one which in fact is restricted to the situation of enhanced or increased punishment.

As I have tried to indicate, I read Burgett more broadly than that and it appears to me that re-sentencing would not be satisfactory in a circumstance where the invalid tainted evidence introduced might have affect to not only the sentencing of Otis Loper, but also his conviction of guilt on the primary offense.

It seems to me in that posture that the required relief is not re-sentencing, but avoidance of the conviction and I simply wanted to bring that - -that point forward in case I have not made myself clear.

Justice Thurgood Marshall: On the retrial, do you have any idea where this complainant witness might be as of now?

Mr. John T. Cabaniss: No, Mr. Justice, I do not.

I am not even sure where Mr. Loper is now.

Justice Thurgood Marshall: She was eight-years old in 1947, right?

Mr. John T. Cabaniss: That is correct.

Unknown Speaker: Mr. Cabaniss, do I understand that he is now on parole?

Mr. John T. Cabaniss: Yes Mr. Justice he was paroled and it is my understanding he is now working in Galveston, Texas.

Unknown Speaker: Have you anything to say about what procedure might be on re-sentencing if that were the limitation upon which it was sent back?

Mr. John T. Cabaniss: No Mr. Justice, I do not.

I am not -- but would be used.

I would assume though -- I would believe that Texas does have procedure in a case like this for re-sentencing without --

Unknown Speaker: Without a new trial on the --?

Mr. John T. Cabaniss: That plenary hearing without full consideration of the matter.

Does the Court have further questions?

Chief Justice Warren E. Burger: Mr. Cabaniss, you acted at the request of the Courts and by appointment of the Court in this case.

Mr. John T. Cabaniss: Yes Your Honor.

Chief Justice Warren E. Burger: And we want to thank you for your assistance for the Court and of course your assistance for the client you represented here.

Mr. John T. Cabaniss: Thank you.

Chief Justice Warren E. Burger: The case is submitted.

Featured:

Burgett v. Texas - Oral Argument

Thu, 23 Aug 2012 18:15:27 +0000

Case:

Burgett v. Texas

Media File:

53_19671018-argument.mp3

Related Transcript:

53_19671018-argument

Transcript:

Argument of Gordon Gooch

Chief Justice Earl Warren: Number 53, James Cleveland Burgett versus Texas.

Mr. Gooch.

Mr. Gordon Gooch: Mr. Chief Justice, may it please the Court.

Petitioner, James Burgett seeks the indication of his right to counsel.

He was convicted in a Texas State Court on a jury verdict of ten years.

He was -- had his conviction affirmed on appeal to the Court of Criminal Appeals of Texas and on his own motion obtained a writ of certiorari in your court.

He was indicted for assault with intent to murder.

The charges against him were brought by a jailer in the town of Greenville, Texas where he was being held for a trial.

At the time of his trial as his trial proceeded, his court appointed counsel in Greenville filed a motion to quash the indictment which alleged four prior convictions which the state used to invoke one of the habitual criminal statutes, the result of which would be life imprisonment.

There was no state procedure available before trial to attack the prior convictions.

The motion to quash as set out in the statutes applied only to technical features of the indictment such as an illegally constituted grand jury.

Nevertheless, the court appointed lawyer moved to quash, stating that he didn't have enough information to make any further attack.

There was no action taken insofar as the record is concerned on his motion to quash but the counsel really couldn't expect the Court to take any motion since the Texas law was clear that the defendant was not entitled to have copies of the prior convictions that were going to be used against him and that the defendant was not entitled to object prior to trial to the use of any prior conviction, instead he had to make his objection in front of the jury.

As the trial began, the state read the indictment and the jury was told that petitioner was duly and legally convicted on four prior occasions.

As the evidence came in, the state introduced into evidence one version, first of one of the Tennessee convictions alleged.

That conviction stated on its face that petitioner did not have counsel.

There was a --

Justice Potter Stewart: That was a conviction for what?

Mr. Gordon Gooch: Forgery Your Honor.

Justice Potter Stewart: A felony in Tennessee or?

Mr. Gordon Gooch: Yes, Your Honor.

The conviction recited on his face that he had appeared in court without counsel and there was absolutely nothing in the record to indicate that counsel had been tendered to him or that he had waived counsel.

His court appointed lawyer objected on the ground that the conviction showed on its face that petitioner did not have counsel and that there was no indication of waiver which brought him squarely within Carnley against Cochran.

Secondly, he raised the issue of course under the Fourteenth Amendment.

The judge reserved ruling and the state offered the same conviction and evidence, this time, a different and inconsistent certified copy of the same conviction.

The second version did not have a recitation that counsel was not present.

It was simply silent on whether counsel was present.

Again, there was no language in the second certified copy of the same conviction to indicate that petitioner had been tendered counsel or that he had waived counsel.

The Court then proceeded to receive evidence again without making a ruling and again over counsel's objections, proceeded to hear evidence concerning a Texas conviction for burglary, the preceding in 1964.

The judge after a hearing, partially in camara, ruled out the Texas conviction on the ground that it was void on state law grounds.

He did not admit the first version of the Tennessee conviction that recited that petitioner was of -- without counsel.

He did admit into evidence the second inconsistent version of the Tennessee conviction stating -- overruling defendant's objections, the trial proceeding.

There was nothing else in the record to indicate what happened until the Court's charge in which the Court charged the jury that they had heard certain evidence that tended to show that the defendant had been guilty of previous crimes and that they were not to consider that for any purpose.

Chief Justice Earl Warren: How about the other two Tennessee convictions that were alleged in the indictment?

Mr. Gordon Gooch: Sir, the other two Tennessee convictions were never directly offered into evidence.

However, the Tennessee conviction that was offered and admitted into evidence contained their recital concerning one of the other Tennessee convictions with the language that he'd be rendered infamous and incapable of giving testimony (Inaudible) language of that nature.

Justice John M. Harlan: Well, didn't the Court's charge also advice the allegations of the indictment with respect to having a new conviction?

Mr. Gordon Gooch: Yes, Your Honor.

It was a blanket --

Justice John M. Harlan: They were told not to consider those allegations, did they not?

Mr. Gordon Gooch: Yes, Your Honor they say -- the judge instructed them, the jury, not to consider the evidence that they had heard concerning any of the -- pending to show prior crimes, I believe is the language he used.

Justice John M. Harlan: Or the allegations in the indictment?

Mr. Gordon Gooch: Yes, Your Honor.

They were instructed that the allegations and the indictment were no evidence originally and also specifically in this connection.

Chief Justice Earl Warren: There was one of the Tennessee indict or convictions that the -- they're concerning which there was no proof offered at all by the state, two of them.

Mr. Gordon Gooch: Two.

Two, two --

Chief Justice Earl Warren: Two of them.

Mr. Gordon Gooch: -- that were admit -- in which there were no certified copies at all even tendered to the Court.

Chief Justice Earl Warren: Yes.

We'll recess now.

You may continue your argument.

Mr. Gordon Gooch: Thank you, Mr. Chief Justice.

I like to place myself now in the shoes of the District Attorney in this rural county of Texas just before petitioner's trial.

He was indicted early in April of 1965 on this habitual criminal charge to be tried later that month.

As evidence, I as the District Attorney have four alleged prior convictions.

Now, only two are required under the Texas Act but I decided to use four prior convictions which I am permitted to do by the Court of Criminal Appeals.

I look at this convictions and I see that at least one Tennessee conviction that I'm going to offer in evidence is inconsistent.

I have their -- I do not know and cannot tell which is the true certified copy of the Tennessee conviction.

But this I can see that on the certified copy of the conviction that I'm going to offer in evidence it affirmatively states that petitioner was without counsel.

And also, there is nothing in any of the convictions or any of the papers certified under Civil Secretary of State of Tennessee or of the clerk to indicate that petitioner was offered counsel or that he waived his right to counsel.

As the case goes to trial, my opponent files a motion asking to see -- asking for more information about this convictions that I'm going to offer in evidence.

I do not have to give it to him and I don't give it to him.

Instead, I make him make an objection in front of the jury after I've already read the indictment to him and an indictment to the jury, I make my opponent object in front of a jury and assert at that time petitioner's constitutional rights.

The first opportunity really that petitioner's counsel had.

The trial judge admits the conviction and the trial proceeds.

The jury is never told that petitioner was never validly convicted.

They're simply instructed at that late date not at the time the evidence was offered but at the time of the charge not to consider.

I don't see how any lawyer reading Carnley against Cochran and Gideon against Wainwright, could reach the conclusion that those convictions could -- were valid and could be used in evidence against petitioner or could be used to invoke the Habitual Criminal Act of the State of Texas.

Justice Abe Fortas: Do we know that there was no waiver of counsel in the Tennessee case?

Mr. Gordon Gooch: If the Court please, I cannot honestly say that for this reason insofar as the record before this Court is concerned there is no indication that petitioner waived counsel.

If I were permitted to testify based on what petitioner told me, I would say that he was not tendered counsel --

Justice Abe Fortas: Well, (Inaudible) --

Mr. Gordon Gooch: -- and he did not waive it.

Justice Abe Fortas: I had to assume that --

Mr. Gordon Gooch: Yes, sir.

Justice Abe Fortas: -- you're going to do that.

Mr. Gordon Gooch: By the same token, the State of Texas never contended in the trial court that there was any waiver.

They never contended in the Court of Criminal Appeals that petitioner waived counsel.

In response to petitioner's petition, they conceded that their proof failed because respondent did not have counsel in Tennessee and only in their brief that they include as exhibits two affidavits filed long after the record were certified in this Court purporting to be affidavits of the trial judge and the District Attorney, reciting the conclusion that petitioner waived counsel.

I was given no notice that these affidavits were going to be taken.

I was given no opportunity to cross-examine these state's witnesses.

Petitioner was given no opportunity to confront these witnesses against him and petitioner was given no hearing in which his credibility could be placed in context with these affidavits.

Unknown Speaker: Mr. Gooch --

Justice Abe Fortas: Well, is the -- is it fair to say that where that the rule of law for which you are contending maybe that where the prior indictment shows on its face that there was no counsel then it's -- the burden is on the state to prove waiver and that the state does not bear that burden at the trial at which they want to use the convict -- the prior conviction then the conviction was brought.

Mr. Gordon Gooch: Sir, I believe the Court's already said that in Carnley against Cochran expressly that unless there is an allegation or evidence of waiver or unless the judgment itself shows waiver, the conviction is void.

And petitioner's counsel did all that he had to do under Carnley against Cochran to throw the burden back on the state by pointing out that the -- there is an affirmative showing of no counsel and no showing of waiver.

Justice William J. Brennan: As a matter of fact, did he finally go a little beyond that to say that waiver is not to be inferred from silence of the record?

Mr. Gordon Gooch: Yes, Your Honor.

Justice William J. Brennan: Affirmed the burdens on the state to establish a waiver (Voice Overlap) --

Mr. Gordon Gooch: Yes, Your Honor.

Justice William J. Brennan: And you tell us that here, the state gives us the alleged -- basis of waiver and affidavits they filed after the case came here?

Mr. Gordon Gooch: Yes, Your Honor.

Justice William J. Brennan: And without giving you an opportunity to see it?

Mr. Gordon Gooch: Yes, Your Honor.

Justice William J. Brennan: That's extraordinary.

Mr. Gordon Gooch: Now, with this evidence before the --

Chief Justice Earl Warren: May I ask Mr. Gooch, have you finished your impersonation of the District Attorney?

Mr. Gordon Gooch: Yes, Your Honor.

Chief Justice Earl Warren: I wonder then if you haven't left out a very important thing with this appeal.

So, I mean, the facts that the alleged four indictments or four convictions against this man in the indictment and read those all four of them to the jury and then made no attempt at all to prove to them.

Mr. Gordon Gooch: Yes, Your Honor.

That's very true and I was remising that -- calling it to your attention.

Under the state law, he may allege as many as he wishes and may use them as he sees them.

Chief Justice Earl Warren: Yes.

Mr. Gordon Gooch: And the standard on appeal on those cases provides no relief that the penalty is not enhanced which is exactly the position taken by the Court of Criminal Appeals on appeal.

They would not let Mr. Burgett even have his case considered because, under their own decisions, unless the penalty has actually been enhanced, the petitioner has no standing to complain about the use of the prior convictions and evidence against him.

In particular, the case that they relied on, their most recent case, the defendant was given 99 years instead of life imprisonment and the Court of Criminal Appeals held that he had no standing to complain because he only got 99 years instead of life under the enhanced statute.

So based on appeal in the Court of Criminal Appeals with no prospect of securing consideration of his claim that his trial jury was prejudiced by this evidence being alleged in the indictment read to him, offered into evidence and then only slightly cured if it all by the instruction of the Court.

If the Court please, this is strictly in violation of your rule in Chapman against California which requires when there's unconstitutionally obtained or used evidence comes into the trial if the state proved beyond a reasonable doubt that it did not contribute to the result in this case.

So the --

Justice William J. Brennan: Both of the convictions they offered were stricken, weren't they?

Mr. Gordon Gooch: Your Honor, you -- we really do not know what happened.

We don't know really why?

Justice William J. Brennan: I don't know about why but --

Mr. Gordon Gooch: It --

Justice William J. Brennan: But they weren't -- jury was told not to consider them at all.

Mr. Gordon Gooch: That's true Your Honor.

Justice William J. Brennan: And I suppose for you to succeed, you do have to say that this evidence was -- which was -- which the jury heard with which was taken away from them and they were told not to consider it, that instruction was not sufficient to overcome the damage --

Mr. Gordon Gooch: Sir, I don't --

Justice William J. Brennan: -- in this particular kind of evidence.

Mr. Gordon Gooch: I don't believe that Mr. Burgett's case necessarily stands or falls on that point but it is an important consideration.

And under standard set by this Court in the last century, it is clear that when evidence, highly prejudicial evidence, the Court is -- can consider and should consider whether or not the jury could possibly obey the Court's instructions.

And in this connection, I'd like to point --

Justice William J. Brennan: You say that it doesn't -- that in these circumstances it could not and therefore you --

Mr. Gordon Gooch: Yes, sir.

Justice William J. Brennan: -- could win.

Mr. Gordon Gooch: Well, that -- yes, sir, that is one --

Justice William J. Brennan: (Voice Overlap)

Mr. Gordon Gooch: -- reason why I should win.

Justice William J. Brennan: And what's the other one?

Mr. Gordon Gooch: The first reason is that the -- he should've had an opportunity for a hearing to have this evidence stricken before the jury ever heard it.

Secondly, and after the jury heard it, there is no way that the instruction by the Court would be effective to erase this from their minds.

Justice Byron R. White: Well, that's the same point.

Justice John M. Harlan: Do you think you can prevail in this case without overruling Spencer and Texas (Voice Overlap) --

Mr. Gordon Gooch: Absolutely sir.

I believe that Spencer simply permits a one stage recidivist proceeding when there is no question that the convictions to be used against the man are valid.

And all Spencer did, if the Court please, is to permit Texas to use a one stage recidivist proceedings and to use in evidence before the guilt has determined a valid prior conviction or valid prior convictions.

Spencer's case is not petitioner's case because the state had no valid prior convictions.

Justice John M. Harlan: No, he wasn't convicted (Inaudible) recidivist at all.

Mr. Gordon Gooch: Well, if the Court please, he is spending ten years of his life that he might not have to if the people who sentenced him, who sentenced him under no standards given by the Court just a range of punishment were not prejudiced by the fact that they had information that they couldn't possibly put out of their mind as to four prior convictions duly and legally convicted.

And as the Second Circuit held under Rotier against Labely (ph), the defendant is entitled to a hearing on recidivism free from the taint of this void prior convictions that the state, really, I don't believe can sustain their burden of showing that it had no effect at all on the jury's ten year sentence.

In Texas, cold blooded murder premeditated can receive two years probated sentence.

Justice William O. Douglas: In this --

Mr. Gordon Gooch: I --

Justice William O. Douglas: In this case, the trial judge has not been advised, was he, that the prior conviction was obtained without benefit against him?

Mr. Gordon Gooch: He was advised that the first opportunity petitioner's counsel had when he was offered into evidence.

Justice William O. Douglas: At that state?

Mr. Gordon Gooch: Yes, sir.

Justice William O. Douglas: Now, was he asked that you eliminate that from the consideration of the jury completely or give limiting instructions to the jury respecting?

Mr. Gordon Gooch: No, sir.

The objection was to exclude it and the objection was overruled.

Justice William O. Douglas: As I read Spencer, I judge that that kind of ruling would be within the reach of Spencer.

Mr. Gordon Gooch: Well, it may well be Your Honor.

I don't --

Justice Byron R. White: It was later stricken, and you say, were you -- that he -- the objection to the evidence was overruled but later it was stricken?

Mr. Gordon Gooch: Yes, Your Honor and the charge --

Justice Byron R. White: And the jury was told not to consider it.

Mr. Gordon Gooch: For any purpose, yes, sir.

But they were told that the prior -- that evidence of prior crimes should not be considered and the convictions and not the indictment, they weren't ever told that the man never had been convicted insofar as the state was really concerned.

They were simply instructed to disregard it.

Now the --

Justice Hugo L. Black: Did we not decide the case several years ago (Inaudible) I think you told us, New York, collateral attack could not be made during the trial on a use of a conviction being used to aggravate the punishment but it had to be done and accept the proceeding in courts for that purpose?

Mr. Gordon Gooch: Well, if the Court please, I -- if so, I have overlooked it but I'd like to point out that all of the circuits have considered this question have had no difficulty in stating that the defendant does have a right to make a collateral attack.

The only alternative is to insulate the judgment from attack and let him suffer the harm.

Let him go back to the other state and attack it which he probably can't do and in Texas is not permitted to do.

And in fact, in Texas, he's not even permitted to tell the jury that he is attacking in a sister state, his prior conviction on the ground that they -- it was obtained unconstitutionally.

The only alternative is to say that once you have an out of state conviction that the man cannot challenge it at all and he has to suffer whatever penalty is -- because I don't believe that that is a position that the Court want to take.

Justice Hugo L. Black: Or it may have had (Inaudible) on the sentence as I recall it just was held by this Court.

Mr. Gordon Gooch: Well, in all of the Circuit Courts that have held on this, that has presented no problem.

And in -- specifically, United States against Jackson considered the difficulties that the state may have in making this kind of proof but the alternatives are simply to deny the man any opportunity to make a challenge.

Justice Hugo L. Black: At any rate, he's not cited such a case.

Mr. Gordon Gooch: No, sir.

I'm not aware of the --

Justice Byron R. White: Well, isn't there a case here in which -- reconsidered in Virginia that the -- is constitutionally required that the state allow a -- an attack on a prior conviction during a subsequent recidivist trial?

Mr. Gordon Gooch: Well, you said tuning Your Honor?

Justice Byron R. White: Yes.

Mr. Gordon Gooch: Well, the tuning if I read it correctly Your Honor, it depends on the restraints that are being placed on the man presently.

It may well be that Tennessee would have to give him a hearing.

But more importantly, Texas should give him the hearing.

Texas is much of a position to determine this as anyone else.

If --

Justice Byron R. White: Well, I gather your position would be to -- if you put yourself back in the shoes of the state's attorney, he wants to offer this prior crime and he offers them in the presence of the jury and the jury hears them and the judge excludes them and he gives an instruction.

You should come up here with the same argument.

Mr. Gordon Gooch: It's I think an entirely different case Your Honor, I --

Justice Byron R. White: But why wouldn't you?

The jury has heard the fact to the -- of the claim prior conviction.

The judge says that, “Well, that man was convicted without counsel.

I exclude it.”

The jury -- the judge wouldn't necessarily follow from your position that you must have a separate hearing on the admissibility of this evidence outside the presence of the jury.

Mr. Gordon Gooch: Yes, sir.

Yes, sir.

But it's a more aggravated case when the judge actually had missed the evidence and waits till the end of the trial to exclude it.

It has a more damaging effect on the jury.

Justice Byron R. White: So you do agree that you'd be up here making the same argument or at least the same kind of argument if the evidence had been excluded.

Mr. Gordon Gooch: If the Court please, I ask no more than you permitted in Jackson against Denno.

Justice Byron R. White: Well, I don't understand.

You want to apply that Jackson against Denno procedure to --

Mr. Gordon Gooch: That is --

Justice Byron R. White: -- a prior crime.

Mr. Gordon Gooch: That is one alternative as -- actually, this is evidence that's coming in, unconstitutionally obtained evidence and I don't see any distinction why this evidence shouldn't be challenged in camara as much as other evidence is challenged in camara.

Justice Byron R. White: Well, it -- I would say that he would apply the same rule to any kind of unconstitutionality, I think, regardless of its -- of the variety of --

Mr. Gordon Gooch: Yes, sir.

Justice Byron R. White: -- of the differences between evidence --

Mr. Gordon Gooch: Yes, sir.

Justice Byron R. White: -- in terms of its impact on the jury.

Mr. Gordon Gooch: Yes, sir.

I agree with that.

Justice Byron R. White: And that -- so you won't distinguish between one kind of evidence and another in terms of its --

Mr. Gordon Gooch: No sir.

Justice Byron R. White: -- power of a jury.

Mr. Gordon Gooch: Only in terms of aggravation under the circumstances.

Justice Abe Fortas: I don't understand the --

Mr. Gordon Gooch: As long as it's unconstitutionally obtained evidence.

Justice Abe Fortas: Mr. Gooch, I don't understand the verdict here.

This petitioner was convicted for assault, with intent to murder repetition of offense.

Mr. Gordon Gooch: Yes, Your Honor.

Justice Abe Fortas: Is that correct when you described it?

Mr. Gordon Gooch: No, Your Honor.

I don't believe so.

He was indicted for that and they're recited in the judgment that he was convicted repetition of offense but from the sentence that he received, he did not receive enhanced punishment.

So I really believe that's a clerical error although as far as the record is concerned, he was convicted as a criminal repeater.

Justice Abe Fortas: I know.

I want to try to get that straight on page 6 of your brief.

The summary of argument you said --

Mr. Gordon Gooch: Yes, sir.

Justice Abe Fortas: -- the petitioner was convicted of an assault with intent to murder, repetition of offense --

Mr. Gordon Gooch: Yes, sir.

Justice Abe Fortas: -- and sentenced to ten years by a jury.

Mr. Gordon Gooch: Yes, sir.

Justice Abe Fortas: Now, what do you mean by that?

Did the jury come in and say that they found him guilty of this offense?

Mr. Gordon Gooch: No, I perhaps tried to compress too much in one sentence.

The jury would never -- was not charged on the habitual criminal.

Well, you say, were only charged on assault with intent to murder in a lesser included offenses.

They returned a verdict of guilty in ten years.

The judge, when he entered the formal conviction against the road on the face of the conviction, convicted assault with intent to murder repetition of offense.

So insofar as the formal judgment of conviction is before you, it reads assault with intent to murder, repetition of offense.

Justice Abe Fortas: Repetition of offense is a means the recidivist statute.

Mr. Gordon Gooch: Yes, sir.

It does.

Justice Abe Fortas: Now, It seems to me that the first question we may have before us is whether they consider this as a recidivist case or as a case of conviction under the assault with intent to murder statute.

Mr. Gordon Gooch: Well, there's --

Justice Abe Fortas: Do you think that we have before us a conviction, a sentence under the recidivist statute or not?

Mr. Gordon Gooch: There's no question that that is true insofar as the record is concerned.

Justice Abe Fortas: You mean we do have a --

Mr. Gordon Gooch: Yes, sir.

That's what the --

Justice Abe Fortas: -- before us a sentence under the recidivist statute.

Mr. Gordon Gooch: Not a sentence, a conviction.

Sentence was not enhanced.

Justice Abe Fortas: The sentence was not enhanced.

Mr. Gordon Gooch: No, sir.

But the conviction before you is a conviction for assault with intent to murder, repetition of offense.

Justice Abe Fortas: Despite --

Mr. Gordon Gooch: He was --

Justice Abe Fortas: --the fact that the judge instructed the jury to disregard for any purpose as I remember, any evidence that was submitted with respect to prior conviction.

Mr. Gordon Gooch: Yes, sir.

And that -- the jury does -- was not asked a question concerning whether or not this man was convicted of other crimes which would have been the procedure otherwise.

Now, I wish -- I would like to save a little time in rebuttal.

I do wish to make one other statement and that is that petitioner was not given the opportunity to be present when the prosecution conducted the voir dire examination of the jury and it seems to me that the -- with -- it's very clear or how critical -- critically important it is for the man to be sitting there so he can observe the jury when the prosecutor is asking the questions, so that he can form a basis of who's going to be leading which way so he and his lawyer can have an adequate opportunity to strike the people that they think are against them from the start.

So that the petitioner can be assured when the jury gets in the box that he hadn't even started with the prosecution and that he knows as the best that you can know that he is going to get a fair shake of the jury.

Chief Justice Earl Warren: Mr. Douglas.

Argument of Leon Douglas

Mr. Leon Douglas: Mr. Chief Justice and may it please the Court.

This case was assault and intent to murder case.

The man was in jail.

He made a telephone call to Tennessee.

On the way back, he stabbed the jailer and --

Chief Justice Earl Warren: On the way back, he what?

Mr. Leon Douglas: On the way back to the cell, he stabbed the jailer and that is what he was convicted for, assault with intent to murder.

There was no enhancement, no repetition except for some words in the judgment, just a straight assault with intent to murder conviction.

This case is one where I believe that Spencer case would have to be overruled, the Mickelson case would have to be overruled.

This is a matter of evidence that was submitted to the jury and the Court instructed the jury not to consider it.

Justice Abe Fortas: Well, what does -- what do those cases have to do with the problem as it's before us if there's no recidivist conviction as you now cite?

Mr. Leon Douglas: The only thing in their Mr. Justice Fortas is that in the Mickelson case the -- it says, the limitation instructions on this subject are no different in this type of case than other cases.

And this also applies in the Spencer case and that was cited in Mickelson case, saying, limiting that evidence would apply in this type of case.

Justice Abe Fortas: Well, how about Spencer though.

Mr. Leon Douglas: It said, Spencer case to use that language and cited the Mickelson case in the opinion about --

Justice Abe Fortas: Well, do you see this case as it is here before us as a case involving Texas procedures under the recidivist statute or not?

Mr. Leon Douglas: It started out that way Your Honor and ended up as a straight trial under assault, intent to murder.

Justice Abe Fortas: You mean the prosecution started out that --

Mr. Leon Douglas: Yes, Your Honor.

Justice Abe Fortas: And how about before us?

What's before us?

Mr. Leon Douglas: This is not a recidivist case before you.

Justice Abe Fortas: Well, just a question of whether the evidence introduced purportedly under the recidivist statute and then later excluded from jury consideration by instruction of the judge is -- undermines a conviction for assault with intent to murder.

Mr. Leon Douglas: That would be one of the main gist of the case, I believe it.

Justice Thurgood Marshall: Mr. Douglas, if this is just an assault with murder, why did you put those two affidavits in your brief?

Mr. Leon Douglas: Mr. Justice Fortas, this -- in the development of this case, if you would permit me, say that the Dallas conviction for burglary was offered.

And this Dallas conviction was admitted into evidence.

When they came to the sentence, he received incidentally three years.

When he came to the sentence, it read not less than two, no more than three.

And when it was offered, it looked like there might be 33 in there.

They had erased one of the three's apparently.

Justice Thurgood Marshall: But did it look the same way when you got it --

Mr. Leon Douglas: Well, in the --

Justice Thurgood Marshall: -- originally?

Mr. Leon Douglas: In the certified record before this Court, it looks like that the three is probably erased.

The printer left it off and put two to three.

Justice Thurgood Marshall: But I mean, didn't you see that before you introduced it in evidence?

Mr. Leon Douglas: Your Honor, I'd the appellate lawyer before the Court of Criminal Appeals.

I didn't offer that but they saw that in the Court.

Justice Thurgood Marshall: Well, are you defending the person who did offer it?

Mr. Leon Douglas: Yes Your Honor.

Justice Thurgood Marshall: Didn't he see it?

Mr. Leon Douglas: Yes, but I -- it is my contention that it made no difference.

If it said 33, it made no difference because --

Justice Thurgood Marshall: That brings me to my next point.

Do you take the position that an alleged certified copy of a conviction in another state which is obviously invalid came to you?

Mr. Leon Douglas: Your Honor, I do not agree that it's obviously invalid.

Justice Thurgood Marshall: No, this one I'm talking about, it is obviously invalid.

Mr. Leon Douglas: I -- maybe --

Justice Thurgood Marshall: Do you say you can use that --

Mr. Leon Douglas: I don't see --

Justice Thurgood Marshall: -- any way?

Mr. Leon Douglas: If one is obviously invalid, I'd say you couldn't use it.

I don't say it is obviously invalid of the fact if the man did not have counsel, does not take into consideration.

Did he waive counsel or did he want to represent himself.

In Moore versus Michigan, it states that you cannot force counsel upon a defendant.

Cases have been reversed because of forcing counsel upon a defendant.

And the fact that --

Justice William J. Brennan: Of course, but didn't finally (Inaudible) say that if the record was silent, you could not incur a waiver?

Mr. Leon Douglas: Your Honor, this is a collateral attack maybe once removed.

Justice William J. Brennan: Collateral attack or not, didn't this -- not what the principle was determining (Inaudible)?

Mr. Leon Douglas: It says that he must show that --

Justice William J. Brennan: And did this record show that he had counsel?

Mr. Leon Douglas: The record shows that -- and that -- I checked the Tennessee law and to see what these instruments were.

It showed that he did not have counsel.

I will agree that he did not have counsel.

Justice William J. Brennan: Isn't that -- I just wonder how these affidavits indicating that in fact he did, is this the one we're talking about, these affidavits in the (Voice Overlap)?

Mr. Leon Douglas: Yes, Your Honor.

I'm probably stand -- perhaps to be reprimanded on those.

I read the case of Giles versus Maryland that came out in February this year and I saw that the Court considered some other matters that weren't in the record and I got interested in the Tennessee law and checked it out and talked to the clerk and the judge hence these affidavits.

Now, I don't think that they're --

Justice William J. Brennan: They're not really properly before us.

Mr. Leon Douglas: Necessary to the opinion Your Honor.

I don't think they're -- necessary to the opinion.

Now --

Chief Justice Earl Warren: They're just not properly here, isn't that right?

Mr. Leon Douglas: I -- if that's what the Court says Your Honor.

I had seen in --

Chief Justice Earl Warren: Well, do you -- how do you defend it?

Now, you --

Mr. Leon Douglas: I don't -- Your Honor, I don't defend it.

Chief Justice Earl Warren: (Inaudible) to say that they're properly here or they're not properly here?

Mr. Leon Douglas: Well, this -- I will say that they're not proper here.

Your Honor, I had seen --

Chief Justice Earl Warren: I thought (Voice Overlap) --

Mr. Leon Douglas: -- matters come up -- pardon me?

Chief Justice Earl Warren: No.

That's all I want.

I don't want you -- I don't want to have you leave here with the idea that we don't have to consider them, we don't want to.

They're properly here or they're not properly here and you say that they're not properly here so that ought to close.

Mr. Leon Douglas: Alright, Your Honor, (Inaudible).

When this Dallas County conviction was ruled out incorrectly, this was a 33.

The Court could affirmed that or it could reform that judgment.

The Court of Criminal Appeals could reform that judgment on appeal or if even as in the penitentiary it could not been collaterally attacked and so if it had 33 years, it was still a good conviction.

It wasn't bad faith on the part of the prosecutor.

It was a bad ruling on the part of the trial court that kept the Dallas County conviction out.

On these habitual criminal cases, the conviction must be prior in time.

The commission and the conviction must be prior.

And one conviction had prior to commission of the next act.

So when the Dallas County conviction went out then the prosecutor could not go forward with the Tennessee conviction so he had to withdraw the Tennessee conviction.

So what the prosecutor could have shown in regard to the Tennessee convictions is not in this record.

So then when the Dallas County conviction went out, he could not go any further as a matter of law with the Tennessee conviction.

So that's the record you have before you and the fact that it went to the jury or if they heard about it and the Court instruct it.

Let's look at this.

There was no objection for the fact --

Chief Justice Earl Warren: Why was it -- it couldn't -- you couldn't put the Tennessee conviction in?

Mr. Leon Douglas: They couldn't put the Tennessee convictions in because for a circuit conviction, it must be of like character and the forgery is not of like character to assault, intent to murder under Texas law.

So as a matter of law then that went out of the case and they had to go back to the assault with intent to murder.

Justice Abe Fortas: Well, why didn't you put it in your indictment?

Mr. Leon Douglas: Because -- assuming that the Dallas County conviction was good in which the record and the law that I've cited in the brief I think would show was good, used the Dallas County conviction then we could go to the Tennessee conviction.

You have to have three of them under Article 63 to get the habitual.

Now to bring it down to the second case, there -- for the second offend there --

Justice Abe Fortas: Well, you have cited four convictions here.

Mr. Leon Douglas: Yes, Your Honor.

Justice Abe Fortas: And you read them to the jury.

Mr. Leon Douglas: Yes, Your Honor.

Justice Abe Fortas: Now -- and then none of them was eventually submitted to the jury, none of them proved out.

And I don't care whether a judge could rule correctly or not.

They were not approved that whether --

Mr. Leon Douglas: That's right.

Justice Abe Fortas: And nevertheless the -- when they hadn't obtain the conviction at least for assault with murder and -- that the ambiguities to what effect a defendant of recidivist statute had, is that right?

Mr. Leon Douglas: Yes, sir.

Chief Justice Earl Warren: Mr. Douglas, may I ask where in the record we can find that the -- that these Tennessee convictions could not be introduced by the prosecution.

Mr. Leon Douglas: Your Honor, I cite in my brief the fact of the Texas law under 62.

Under --

Chief Justice Earl Warren: Was there anything in the record that shows that the prosecutor made a valid attempt to introduce the Tennessee convictions.

What would prevent it from doing so by the ruling of the Court?

Mr. Leon Douglas: No, sir, only as a matter of law when the Dallas County conviction was ruled out.

Chief Justice Earl Warren: Ruled out -- the record shows nothing of that and it develops only when you write a brief in this Court.

Mr. Leon Douglas: Yes, Your Honor.

Chief Justice Earl Warren: Alright.

Now let me ask you this.

You have said that it's necessary to overrule Spencer if we're going to reverse this case, leaving out all except the two convictions concerning which no evidence was offered at all.

What comfort do you get out of Spencer for saying that a prosecutor can go before a grand jury and have four convictions charged against the man and then when he gets to trial reads it -- reads the indictment with the four convictions to the jury and then makes no effort at all to approve two of them.

Mr. Leon Douglas: Well, if it would be --

Chief Justice Earl Warren: I just -- you said we have to overrule Spencer and I just want to know what comfort you'd get out of Spencer if you think Spencer said anything of that kind?

Mr. Leon Douglas: In Reed Your Honor, there were eight prior convictions and you needed three.

I don't get any comfort out of it except that it could have been a habitual crime -- habitual criminal case if the state had been permitted under the law to prove those cases to make three of them.

If we've been permitted, we could have made -- I say that we could have made a life sentence case if he hadn't incorrectly ruled out the Dallas case and that's no -- that's when the law says, you can't go any further.

When we knocked out the Dallas case, well we could not go any further as a matter of law and that's the reason it was not -- they couldn't go in to those.

Chief Justice Earl Warren: Did you offer them to show you good faith in having charged them in the indictment?

Mr. Leon Douglas: May I go on to this good faith.

The district attorney offered to stipulate the prior convictions and the -- they -- there's nothing in this record to show that they wanted to see these prior convictions ahead of time.

Chief Justice Earl Warren: But he wouldn't expect them to -- that they were all bad, would you?

Mr. Leon Douglas: Your Honor, I don't know if they're bad.

The Tennessee --

Chief Justice Earl Warren: (Inaudible)

Mr. Leon Douglas: The Tennessee law, we could look at that just a moment.

It has -- had a statute since 1855 requiring appointment of counsel in all felony cases.

And even in misdemeanor cases.

I checked the cases in Tennessee and I found three that mentioned without counsel.

One of them was reversed or about three of them reversed because it didn't give them enough time to prepare -- appointed counsel to prepare for trial.

Another case was reversed because the justice of the peace did not advice the defendant of all his rights or right to counsel.

No cases were reversed.

I looked through the Sixth Circuit cases from back past the Gideon versus Wainwright.

I found no cases that had been reversed in the Sixth Circuit or denial of counsel in Tennessee.

And with that, I think that looking at the law there, no case has been reversed in Tennessee.

I couldn't -- I think it's a presumption that he perhaps had a lawyer.

And --

Chief Justice Earl Warren: So rather that's a presumption there, I think.

Mr. Leon Douglas: Well, it -- when no cases had -- there was, excuse me.

There was one case reversed, Chandler versus Fretag was reversed in this Court.

That was a Tennessee conviction.

Here, the man was charged as habitual.

They asked if he want a lawyer and he did not.

He later found out that he was charged an habitual criminal, he said, I want a lawyer.

They denied him a lawyer.

Under those circumstances, this Court reversed.

And that's the only cases -- I wouldn't say that's all of them, but that's the only cases that I know of.

Now, under -- we started out of course as a -- as an habitual and under these cases that are submitted to the -- that I have submitted to you that we couldn't go forward with those.

Now, I don't think there's any bad faith shown.

I think it's a bad ruling on the trial court and this defendant made no objection to the reading of that indictment because of these prior convictions in it, but there is nothing in the record he showed to ask -- to see this judgment.

And if you permit this proceed --

Justice Thurgood Marshall: But Mr. Douglas, did he know what those prior convictions were when the indictment was read?Had he seen them?

Mr. Leon Douglas: I don't know, Your Honor.

He -- there's nothing in the record to show that he asked for it.

I don't --

Justice Thurgood Marshall: But he did the best he could.

He filed a motion to quash as a -- to the best he could do.

Mr. Leon Douglas: Your Honor --

Justice Thurgood Marshall: There's no other way you could do it.

Mr. Leon Douglas: You Honor, that motion to quash only contained allegations to this effect, that they were indefinite that the indictments were indefinite.

Justice Thurgood Marshall: Well, isn't that all he could do at that time under the law of Texas.

Mr. Leon Douglas: We have procedure.

We have a motion to quash the indictment.

You have a hearing outside of the presence of the jury, and you can develop --

Justice Thurgood Marshall: At that time?

Mr. Leon Douglas: -- develop the facts or motions to quash --

Justice Thurgood Marshall: Would it have -- would've had breached those indictments?

I mean those convictions?

Mr. Leon Douglas: I have not found a case particularly in point on that, but the statute sets out a motion to quash in exception to the indictment, a motion to change venue, and a separate hearing, separate statement of facts on appeal.

Justice Thurgood Marshall: Well, my whole point was he made the point that he can object to the reading of the indictment and I was merely raising a question.

How could he object to these convictions when he didn't know what in the world they were?

Mr. Leon Douglas: They were alleged the dates for forgery, the dates of the conviction, the place of the conviction, and the amount and the time they were alleged in the indictment.

Justice Thurgood Marshall: But he didn't see them, did he?

Mr. Leon Douglas: I have in -- he -- there's nothing in the record that showed he asked for it.

I don't know whether he saw them or not, Your Honor.

This procedure, somewhat like the --

Justice Thurgood Marshall: Well, if you're going to say he waived something, we ought to be able to know whether he intelligently waived the objections of the reading of the indictment or not?

Mr. Leon Douglas: Well, if there's no objection --

Justice Thurgood Marshall: Would you think so?

Mr. Leon Douglas: If there's no objection in the record, I don't know.

Justice Thurgood Marshall: Well, do you think there was a waiver?

Mr. Leon Douglas: Not until this case -- the Spencer case, now there was objection in the Spencer case to the reading of it.

In this case, there is no objection.

There is no objection to this indictment mentioning this prior --

Justice Hugo L. Black: Was it read?

Mr. Leon Douglas: Beg -- Yes.

Justice Hugo L. Black: Was it read?

Mr. Leon Douglas: It was read, Your Honor.

Justice Hugo L. Black: In open court?

Mr. Leon Douglas: In open court, yes, sir.

Justice Hugo L. Black: By the defendant's lawyer?

Mr. Leon Douglas: Yes, sir.

Justice Hugo L. Black: And how the jury was.

Mr. Leon Douglas: Yes, Your Honor.

And this was just a -- this is a matter of evidence.

I think this case comes down to matter of evidence.

Now, on the procedure in Texas --

Justice William J. Brennan: Excuse me Mr. Douglas, may -- I just like to get your Texas procedure straight.

Mr. Leon Douglas: Yes, sir.

Justice William J. Brennan: Do I understand that the recidivist cases in order to get an enhanced penalty, there must be established two other convictions?

Mr. Leon Douglas: For a life sentence case?

Justice William J. Brennan: For life sentence.

Mr. Leon Douglas: Yes, Your Honor.

Justice William J. Brennan: Now, what actually happened here as I read this part is initially, 6711 of Tennessee was offered and the judge reserved.

Then, there was a second offered, wasn't there?

Mr. Leon Douglas: The Dallas County conviction.

Justice William J. Brennan: The Dallas County.

And on this, there was a hearing and at the conclusion of that hearing, the judge said you can't use the Dallas County, is that right?

Mr. Leon Douglas: Yes sir.

Justice William J. Brennan: So that left the record at that point with just the 6711, which subsequently, as I read the record in the second version was finally admitted in evidence, actually received in evidence, is that right?

Mr. Leon Douglas: Yes sir.

Justice William J. Brennan: Now, in that posture of the case, without any thinking more in the way of prior convictions, could there have been enhanced penalty?

Mr. Leon Douglas: No, Your Honor, could not.

Justice William J. Brennan: And the prosecutor offered nothing more thereafter, is that it?

Mr. Leon Douglas: That's right.

Justice William J. Brennan: Whatever the reason may be, he offered nothing else.

And as I read the record, in his instructions to the jury, the judge referred to the fact that he had admitted something faring bearing on the prior convictions and said, “No, I withdraw all as to (Inaudible) -- I withdraw all of this from your detention case.”

Mr. Leon Douglas: Yes, sir.

Justice William J. Brennan: Is that what actually happened?

Mr. Leon Douglas: The Dallas County conviction was actually introduced and later withdrawn, the way I remember the record, Your Honor.

Justice William J. Brennan: Oh, I see.

It was actually -- was it received?

Mr. Leon Douglas: Yes, Your Honor --

Justice William J. Brennan: Oh, I see (Voice Overlap) --

Mr. Leon Douglas: And later withdrawn when they got to the sentence, that's the way I remember the record.

Justice Byron R. White: Oh, I don't know.

Justice William J. Brennan: I didn't read it that way, because I don't know this material.

The fact is in any event, after the Texas conviction went out, whatever the reason was, it had to go out, I gather, from state law.

That left the record with only this one -- second version of 6711 of Tennessee, although the indictment alleged other Tennessee convictions --

Mr. Leon Douglas: Yes sir.

Justice William J. Brennan: -- as to which the prosecutor offered no proof, is that right?

Mr. Leon Douglas: That's right.

Justice William J. Brennan: But he had read when he read in the presence of a jury at the opening of the trial those provisions of the indictment which alleged this other Tennessee conviction.

Mr. Leon Douglas: Yes sir.

Justice Byron R. White: Well, your brief says that the Court didn't admit the Texas conviction and so that's what records meant to show.

Had a hearing and they excluded it -- excluded that, they admitted the one -- (Inaudible) -- the one version of Tennessee conviction which was later withdrawn.

Mr. Leon Douglas: I think there was no objection to the first of the Dallas conviction and then somewhere in there, it was later -- at the time, it was withdrawn then and it came in first without objection and went further to the sentence and then it was withdrawn then.

Justice Byron R. White: What, Dallas, the Dallas County?

Mr. Leon Douglas: Yes, Your Honor.

The way I remember the record, I think that is right.

Justice William J. Brennan: That isn't what your brief says.

Mr. Leon Douglas: I might have shortened it a little bit your Honor in a thumbnail of summary.

Now, at Texas --

Chief Justice Earl Warren: Well, did the -- the judge found, did he not that the Texas conviction was an unconstitutional conviction?

Mr. Leon Douglas: He said its void, yes Your Honor.

Chief Justice Earl Warren: Beg your pardon?

Mr. Leon Douglas: The trial court said it was void Your Honor.

Chief Justice Earl Warren: Yes.

Well now, did he instruct the jury to that effect?

Mr. Leon Douglas: No, he instructed the jury not to consider.

Chief Justice Earl Warren: Well, isn't there a great difference between instructing them not to consider that charge from advising him that the conviction was void and should not be considered against the defendant under any circumstances?

Mr. Leon Douglas: It would probably be different but most of our judges don't give reasons.

Chief Justice Earl Warren: Beg your pardon?

Mr. Leon Douglas: Most of our judges do not give reasons for making the ruling that they make, they don't say --

Chief Justice Earl Warren: He never told the jury, I understand that it was void in his instructions to them.

Mr. Leon Douglas: No.

He just says, not consider it Your Honor.

Chief Justice Earl Warren: Yes, let it -- that would assumed that the -- that conviction stood but for some reason rather they shouldn't consider it.

Mr. Leon Douglas: He said evidence to the effect of prior convictions in the reading of indictments before you.

You will not consider if I remember it correctly.

Chief Justice Earl Warren: Yes, that's the way I --

Justice William J. Brennan: Well, is this the only one Mr. Douglas.

I'm looking at page 11 of the record.

You are further instructed with the state during the trial of this case, offered evidence that might be considered as tending to show the commission of other offenses by the 15th day of April 1964.

That all said evidence is withdrawn from you and you will not consider such evidence for any purpose whatsoever in arriving at your verdict.

You should not mention or discuss in your deliberation such evidence for that portion of the indictment that you're attempting to charge such further -- such prior offenses.

Is that the only present (Voice Overlap) --

Mr. Leon Douglas: That's the charge, yes.

Justice William J. Brennan: Oh, you are further instructed that the indictment read to you was not evidence and shall not be considered by your sentence.

Mr. Leon Douglas: Yes sir.

Justice William J. Brennan: But that's the whole of it?

Mr. Leon Douglas: Yes sir.

Texas has the procedure.

Everything that the appellant or the petitioner's complaining about has a procedure now as -- and even in capital cases where you have a separate hearing on this habitual criminal cases where you read the -- you do not read the prior convictions to the jury.

You read the indictment on the primary offense.

You have penal -- you have the guilt hearing and after that's over then you submit it to the jury.

We have changed that effective January the 1st of 1967.

Justice William J. Brennan: In just capital cases?

Mr. Leon Douglas: In all cases.

When we're up on Spencer, we had it in the felony cases and now in the ordinary felony.

Now we have it all cases, capital, felony and misdemeanors where jail time might be assessed.

Justice William J. Brennan: So what happened here can't happen again or (Voice Overlap)?

Mr. Leon Douglas: It cannot happen again.

Article 3707, there is a case that's not cited in Southwestern (Inaudible) is the Williams case and our court has indicated or shown that the capital cases and all the case now while you have a separate hearing.

We now have a motion to suppress.

If this evidence was not admissible under our system now, we have this motion to suppress and it would not go to the jury since it would not be read under 3707 and Article 2801, while we have a motion to suppress.

Our procedure has been corrected and I think that under the case of McClellan versus U.S. where we had a case came up that this Court denied a read in and where they had courts of inquiry, not of publicity while the legislature changed that and this Court says that we will not reverse this because Texas has corrected its procedure.

And with that, we submit to you that this case should be affirmed.

Justice Byron R. White: What case did you cite a while ago as well as Spencer, was it Michelson or Mickelson or --?

Mr. Leon Douglas: Michelson, M-I-C-H-E-L-S-O-N.

Justice Byron R. White: Is that in your brief?

Mr. Leon Douglas: Your Honor, it is cited in the Spencer case and the --

Justice Byron R. White: Oh, that's alright.

Thank you very much.

Chief Justice Earl Warren: Mr. Gooch.

Rebuttal of Gordon Gooch

Mr. Gordon Gooch: Thank you Mr. Chief Justice.

I have to make several points in a short time.

First, I'd like to say is that Mr. Douglas I believe gave you the order backwards.

The Tennessee convictions were offered first and the judge did not preclude any evidence coming in on the Tennessee convictions that were offered.

The judge specifically said that he would reserve his rulings until the District Attorney offered all evidence that he was going to offer.

And when the district attorney -- this is on page 36 to 41 in the record.

Secondly, obviously then the state was not prevented from making any proof they cared to make in connection with the Tennessee conviction that was admitted in the evidence.

Third, I don't see how they conceivably could make this a life sentence case not only with these convictions but also in the brief they argued because the jury knew that the defendant was in jail, that the jury could take that evidence into consideration and impose a life sentence.

The plain truth is he wasn't even convicted at the time that he was held in jail.

Next, the offer to stipulate the choice that the defendant has to make is -- make these constitutional objections in front of the jury suffer the prejudice are stipulated outside the presence of the jury when the state has the right to require the defendant to put on any evidence that he has about punishment outside the presence of the jury.

But the defendant doesn't have that right, only the state.

We only ask that the odds be evened a little bit.

Secondly, the motion to quash the indictment does not go to striking prior convictions.

It's simply to the form and substance, the content and it does not cover this point in the statute.

It does not cover those points in the cases.

Next, there was an objection to the Dallas conviction.

What they offered first was the Dallas indictment.

The Dallas conviction was objected to.

Next, this can happen again.

This can happen again for the simple reason that even with the two state's trial, the state can still under the present law use these void convictions during the punishment phase of the trial, unless the defendant has some way in advance to prevent them from doing so.

After guilt has been determined and you begin the punishment phase, the indictment is read to the jury and we're right back where we started.

Justice William J. Brennan: But Mr. Gooch, that's a different point really from the one that you're here on in this case, which is, as I understood you in light of the sentence here, there was prejudice and what happened about these other convictions, which entitles your man to a reversal of his -- of this conviction.

Mr. Gordon Gooch: I believe that Mr. Burgett was prejudiced not only on the issue of punishment but also on the issue of guilt (Voice Overlap) --

Justice William J. Brennan: That's the (Voice Overlap) -- in this sentence --

Mr. Gordon Gooch: Yes sir.

Justice William J. Brennan: But I gather this new procedure could go only to the punishment phase, is it not?

Mr. Gordon Gooch: That's true, sir, but he'd still be prejudiced when the jury gives (Voice Overlap) --

Justice William J. Brennan: Well, that's not -- that case isn't here.

Mr. Gordon Gooch: But it --

Justice William J. Brennan: You're here really on prejudice in the conviction itself, aren't you?

Mr. Gordon Gooch: And the punishment since the jury sets the punishment.

Justice William J. Brennan: It will be content if the result here where it would set aside for a new determination of punishment?

Mr. Gordon Gooch: If the Court please, I have to think about that.

I certainly would though better than have Mr. Burgett spend the next ten years of his life with this -- in his way.

Chief Justice Earl Warren: Very well.

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Argument of Chief Justice Warren

Mr. Chief Justice Warren: Petitioner versus Frank J. Pate, Warden.

Mr. Lassers, you may continue your argument.

Argument of Willard J. Lassers

Mr. Willard J. Lassers: Mr. Chief Justice and may it please the Court.

At the habeas corpus hearing before Judge Perry, the -- we produced evidence regarding a pair of jockey shorts.

These shorts were originally introduced with the 1956 trial and at that time it was evidence from Mr. Litterly that I mentioned yesterday that these shorts have Type A blood on them and there was some out there evidence which we question that that the little girl who was murdered also had Type A blood and these shorts according to the prosecution theory had been worn by the petitioner and had been abandoned by him in his flight.

We pre --

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: May I ask?

How did the testimony of the little girl who had Type A blood get into the case?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: The mother was -- testified to that effect.

It was a hearsay testimony as far as she was concerned but it got into the record.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: You say, she did not testify --

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: She did.

The mother of the little girl testified, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: -- in shape that --

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: In shape, yes, correct.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Based upon what did she say?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: She didn't say.

It was fudge.

It appeared as though she was based at a school record tied in with the child's weight.

But she made the statement that she had a Type A blood and that's all the evidence there was at the trial as to the little girl's blood type.

Argument of Justice Black

Mr. Justice Black: Is there any question about the accuracy of the statement?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Well, we -- we think it was hearsay evidence, Mr. Justice Black.

Rebuttal of Justice Black

Mr. Justice Black: I understand that it was hearsay --

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Yes.

Rebuttal of Justice Black

Mr. Justice Black: -- but it was in without objection.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Well --

Rebuttal of Justice Black

Mr. Justice Black: Is there any question about the accuracy?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: We have no way of knowing positively because the child is dead.

So we can't verify one way or the other.

Rebuttal of Justice Black

Mr. Justice Black: Have you made any efforts to find out?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: We have made efforts inconclusive.

Rebuttal of Justice Black

Mr. Justice Black: Asked a doctor?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: I'm sorry.

Rebuttal of Justice Black

Mr. Justice Black: Did you ask a doctor?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Yes, we made various inquiries at the hospital and so forth.

They turned up some slips which showed Type A blood but the exact timing and dates and it was very confused.

We couldn't establish it either way.

Rebuttal of Justice Black

Mr. Justice Black: So did they had the Type A blood but it didn't show the time that she had it, is that it?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: I don't remember the details whether the slip was undated or what the problem was but I remember that we couldn't establish it either way.

Now --

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: I suppose if she had the type of blood any time she would always have it.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: That is -- it's my understanding that that is correct, Mr. Chief Justice.

Now, at the District Court hearing, for the first time, Judge Perry permitted us to have a scientific examination made of the shorts and at that time, we produced evidence showing that the shorts were saturated not with blood but they were saturated with paint.

Now, we've actually brought up the shorts up here, they look terrible Your Honors and they -- all what you see here is paint and not blood.

Now --

Rebuttal of Justice Black

Mr. Justice Black: Well, how do you tell by looking at it that's paint and not blood?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: We cannot Your Honor, Mr. Justice Black, no.

It took us --

Argument of Justice Harlan

Mr. Justice Harlan: Was there any blood?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: What?

Rebuttal of Justice Harlan

Mr. Justice Harlan: Was there any blood in the shorts?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: That is a disputed fact.

Now, our chemist testified that he could find no evidence of blood.

He made this test in December of '63.

Now, there was testimony back in '56 by the state witness Litterly that he found blood on the shorts.

But our man couldn't find any in '63.

Now --

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Did they find any in '63?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: The state?

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: The state, yes.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: The state didn't make any new test in '63 one way or the other.

Now --

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: How obvious is that -- is the red part of it that you attribute to paint than they attribute to blood on the shorts?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: I didn't hear your question.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: How obvious is the paint on the shorts that --

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Well, this was always referred to at the 1956 trial as the blood stained shorts even petitioner so referred to it and Litterly, in the '56 testimony said, he talked about -- he said that the red -- the staining material on the shorts were -- was blood.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Well, as repulsive as it maybe, would you open it up so I can see it?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Certainly.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Now, is there any question about it that what everything we can see there is paint.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: I don't think there is any question, Mr. Chief Justice.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: So the state contends that anything that can be seen on there now is blood.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: They have not challenged that.

All that they can claim was that there was -- that their testimony -- that their expert in '56, said that there was blood but I think it is undisputed now that everything that Your Honors see is paint.

Argument of Justice Fortas

Mr. Justice Fortas: Yes, but didn't the counsel for the petitioner at the original trial in 1956 see those shorts?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Yes he did, Mr. Justice Fortas.

Rebuttal of Justice Fortas

Mr. Justice Fortas: And what did he do after he saw them?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Well --

Rebuttal of Justice Fortas

Mr. Justice Fortas: Did he have an analysis made of them?

Did he ask --?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: He moved the Court to have a scientific examination made of the shorts and it was denied.

So he couldn't present --

Rebuttal of Justice Fortas

Mr. Justice Fortas: What do you mean he moved the Court to have a scientific examination made?

Did he move --

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: He presented a motion.

Rebuttal of Justice Fortas

Mr. Justice Fortas: Did he move -- did he move that he'd be allowed to have an expert examine the shorts?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: That is correct.

Rebuttal of Justice Fortas

Mr. Justice Fortas: And that was denied?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: It was denied.

Rebuttal of Justice Fortas

Mr. Justice Fortas: Now, had he had an opportunity and have such scientific examination made prior to trial?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: He moved it in May that it was an examination to examine all the physical evidence, to have a scientific examination made.

It was made in May and the trial was held in September.

Rebuttal of Justice Fortas

Mr. Justice Fortas: So that -- and that was denied in May.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: It was denied.

Rebuttal of Justice Fortas

Mr. Justice Fortas: So that your point about the subsequent District Court hearing in 1961 or whenever it was.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: '63.

Rebuttal of Justice Fortas

Mr. Justice Fortas: '63.

Is merely that it's a dramatic demonstration of the fact that this was a prejudicial error.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: That is correct, Your Honor.

Yes.

Rebuttal of Justice Black

Mr. Justice Black: Was there motion made directly and specifically to the judge, stating that this was not blood but was paint?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: No.

No, Mr. Justice Black, it was not.

There was no way to tell as I understand it by looking at this, what this stating material is.

Rebuttal of Justice Black

Mr. Justice Black: But what do you mean when you say that he made a motion?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: He made a motion to have a scientific examination made of all of the physical evidence in the case.

Rebuttal of Justice Black

Mr. Justice Black: That they have to have a scientific investigation there.

What kind of scientific --

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: It was not specified.

Rebuttal of Justice Black

Mr. Justice Black: -- of all the evidence in the case.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: It was -- of all the physical evidence.

It was not specified and there was a --

Rebuttal of Justice Harlan

Mr. Justice Harlan: Is there any question amongst as to where these pants were in '56 to '63?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: They were in the hands of the prosecution up to the time of the trial and then they were in the -- I believe in the possession of the trial court.

I'm not certain of that.

And then they were transmitted to the Supreme Court of Illinois and we got them into the hands of the District Court from the Supreme Court of Illinois and then they went to the Court of Appeals and then they came to this Court.

Now, the -- there are two other errors Your Honors that we feel are critical here.

One relates to the state's star witness, Betty Baldwin who is now Betty Baldwin-Curry who testified that on the night of the murder that this -- that the petitioner admitted the crime to her in the course of a taxi ride, he was a taxi driver and in 1963, before Judge Perry, she recanted her testimony and denied that she had ever -- that he had ever made such a statement to her.

Justice Potter Stewart: Did his confession make any reference to having admitted the crime to her?

Mr. Willard J. Lassers: I don't -- no, I don't believe it did.

Justice Potter Stewart: I thought it had.

Mr. Willard J. Lassers: It did?

Mr. Rosenfield says that it does make such a reference.

Now, at the '63 trial, again by discovery, we learned for the first time of a statement in the prosecution files given by this woman very shortly after the crime.

At the '56 trial, she was asked how long she had known the petitioner and her answer was two years.

And at the 19 -- and the statement that she gave to the prosecution right after the crime was that she had known him for five weeks.

Now, that was first learned by us in 1963.

Then there was a whole long list of other facts known to the prosecution prior to the ‘56 trial which cast serious doubt on the reliability and trustworthiness of this witness.

Rebuttal of Justice Black

Mr. Justice Black: What was the time relevance here or importance of the length of time she had known him?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Because if she had known him for two years, Mr. Justice Black then if she conveyed the impression -- conveyed the impression to the jury that it was the -- that there was the kind of relationship between them that if he had committed a crime that he would admit it to her whereas if it was only five weeks, it would be less likely that he would make such an admission to somebody that he had just knew very briefly.

Now, the -- my time has expired, Your Honors and I want to save some time for rebuttal.

We're not going to -- because I have mentioned that I don't want the Court of Appeals that we think that they're unimportant but there were serious questions with regard to being cut off in the examination of a key defense witness Mrs. Alice Baxter who is the landlady.

And the landlady came up to the 1963 trial and said that he was in his room in her house at the time that the crime took place.

In '56, before the trial, the defense counsel tried to interview this witness.

She spoke to him once or twice and then the -- then she called the prosecution and the prosecution told her that she has a constitutional right not to talk to the defense counsel and then she refused to talk to him any further.

So she was listed as a prosecution witness in 1956.

She was not called by the defense in '63, as I said, she came forward and she said that he was in her house at the time of crime.

Rebuttal of Justice Harlan

Mr. Justice Harlan: Alright, are you or somebody on your side going to deal with the claim that the -- confession itself is coerced?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: I intended to deal with that Your Honor but my time is going down except for the fact that there was a lie about the hair plus the fact that the prosecution told -- he asked to see his parents and the police told him, “You can't see your parents.

Your parents don't want to have anything more to do with you.”

And all the time the parents were out trying to find out where he was in lining up an attorney.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: I understand -- I understand, Mr. Lassers that the defense tried to call this lady, Mrs. Baxter at the trial, is that correct?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: That is correct.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: And they tried to -- because they couldn't talk to her after the prosecution had told her that she had a constitutional right not to talk to him.

They asked the Court to let them examine her as a court witness.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: That is right, Mr. Chief Justice.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: The prosecution said that they would only do that if the defense admitted her unreliability and the Court on that objection refuse let her be examined as a court witness.

Is that the fact?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: That is the fact, Your Honor and it is so stated in the record and in fact Mr. Malmgren, the defense counsel said I will not state that she is unreliable.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: What was the statement based upon that she was unreliable.

Is there anything to indicate that?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Oh!

No, no.

The defense counsel would refuse to say that she was unreliable.

His point was that he didn't know what her testimony was going to be and he couldn't risk being bound by her testimony.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Yes, yes, I understand that but I mean, has anything developed since to indicate that Mrs. Baxter was not reliable?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: No.

I -- no.

I would say, no.

But there was some suggestion in the record that say that they put in an affidavit that she had given some contrary testimony -- made a contrary statement to a prosecution with -- that was introduced in '63.

But when she -- but nobody has really challenged her for it.

Rebuttal of Justice Black

Mr. Justice Black: What is the importance?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Because it --

Rebuttal of Justice Black

Mr. Justice Black: What is the importance that you attribute to the statement that a witness didn't have to talk to somebody on the outside if he didn't want to?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Yes, Mr. Justice Black because it cut the defense off not only from this live witness.

Rebuttal of Justice Black

Mr. Justice Black: But he did cut the defense?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Right.

Rebuttal of Justice Black

Mr. Justice Black: Do you claim that a person who doesn't have a right to refuse to talk to somebody and tell him about the facts of the case before they put him on the stand?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Our point is Your Honor that it was wrong for the prosecution to chill the defense in this avenue of exploration.

Rebuttal of Justice Black

Mr. Justice Black: If they were asked a question, what is wrong with saying if you don't think you have to just talk to him unless you want to?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Because in -- Your Honor, we feel that in a murder trial, particularly, that the defense is seriously handicapped if the prosecution compel --

Rebuttal of Justice Black

Mr. Justice Black: Admitting that --

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Right.

Rebuttal of Justice Black

Mr. Justice Black: What I'm asking is, do you claim that because of anytime of trial, a person has got to talk to the lawyers or defendant in the case if he doesn't want to?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: No Your Honor, no.

If this had been her --

Rebuttal of Justice Black

Mr. Justice Black: That's why I can't understand the great emphasis because on that.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: No, only if she had said voluntarily of her own will, “I don't want to talk to you” then perfectly alright.

But I think it was wrong for the prosecution to say to her to --

Rebuttal of Justice Black

Mr. Justice Black: Are you saying that the prosecution voluntarily went out of their way to tell a witness that they didn't have to talk -- I don't understand.

That might have been thought of?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: She called -- I believe that the record shows that she called the prosecuting attorney and then the prosecuting attorney --

Rebuttal of Justice Black

Mr. Justice Black: And asked him.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: And asked him.

Rebuttal of Justice Black

Mr. Justice Black: If she had to testify.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Not to testify but to talk --

Rebuttal of Justice Black

Mr. Justice Black: That she had to talk to him.

And he said --

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Correct.

Rebuttal of Justice Black

Mr. Justice Black: -- she didn't have to.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: She's -- he said --

Rebuttal of Justice Black

Mr. Justice Black: Is that the whole circumstance?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: He said that to her and to some certain other witnesses and the prosecutor so testified in '63.

Rebuttal of Justice Black

Mr. Justice Black: Well, I understand that but I think it's perfect and normal thing, it seems to me, if one person calls of another and asking the lawyer, “Do I have to talk on the outside?”

And said “No.”

I don't quite understand the great emphasis you put on there.

It may have it but I don't yet quite get it.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Well, the point is that if he had been allowed to complete that inquiry that then she would have been available as a witness.

Rebuttal of Justice Black

Mr. Justice Black: If who had been allowed can be?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: If the defense counsel had been allowed to --

Rebuttal of Justice Black

Mr. Justice Black: Then if the defense counsel --

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Yes.

Rebuttal of Justice Black

Mr. Justice Black: -- gotten this witness to talk, he could have found out more than he did.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Yes.

Rebuttal of Justice Black

Mr. Justice Black: But why do you attribute some wrongdoings of the prosecuting attorney and answer the question and saying you don't have to testify?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Well, we feel that his advice was wrong that she had a constitutional right and so forth.

Rebuttal of Justice Black

Mr. Justice Black: Oh!

You think that she did not have a right to refrain from talking on the outside of the Court?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: If it was up to her, she could make her own decision but the prosecution should --

Rebuttal of Justice Black

Mr. Justice Black: What you said so far, you've made it after her, but she called the prosecutor, you've said it?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Yes.

Rebuttal of Justice Black

Mr. Justice Black: And ask if she had to talk to this man and he said no.

What's wrong with that?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Well, I think you should have said to her in fairness to the defense that you go ahead -- he asked to prepare his case.

I think that would've been the part where it is.

Rebuttal of Justice Black

Mr. Justice Black: We don't claim legal error for a prosecuting attorney to make that answer, do you?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: We do Your Honor.

Well, we might mention also that the Gregory case which decided recently by the Court of Appeals for the District of Columbia, somewhat similar circumstances.

Justice Byron R. White: But would she have to testify?

Mr. Willard J. Lassers: She testified in 1963.

Justice Byron R. White: But she didn't testify in the trial?

Mr. Willard J. Lassers: No Mr. Justice White, she did not.

Justice Byron R. White: You contend that the state had information about what Mrs. Baxter might testify to and didn't reveal it to the prosecution?

Mr. Willard J. Lassers: We don't know what they --

Justice Byron R. White: Did you ever asked in the '63 hearing?

Didn't you -- did you go into that matter whether these facts which Mrs. Baxter -- would you know Mrs. Baxter would testify to it?

Did you ask the prosecution whether they lose out in '56?

Mr. Willard J. Lassers: They put in their own evidence on that point.

Justice Byron R. White: On what point?

Mr. Willard J. Lassers: They put in evidence saying that some official had interviewed her and she had told them -- given them a different story but she testified in '63, she and her husband and the two grandchildren, placing him in the house at the time of the crime.

Justice Byron R. White: Well so, she's given -- she essentially gave two different stories there.

One in the prosecution and one in the --

Mr. Willard J. Lassers: We don't say that Mr. Justice White because that was just a hearsay --

Justice Byron R. White: Well, why --

Mr. Willard J. Lassers: They just put it in an affidavit.

They didn't put the man on the stand.

Justice Byron R. White: Well, yes, the prosecution -- that's the prosecution's claim, isn't it?

Mr. Willard J. Lassers: That's their claim, yes.

Justice Byron R. White: And it's your claim that she has testified something else.

Mr. Willard J. Lassers: Yes.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Does the affidavit of the prosecution as to what she said fit with the theory of their case as it was tried?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: I think it does.

Thank you, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Mr. Rosenfield.

Argument of Maurice Rosenfield

Mr. Maurice Rosenfield: Mr. Chief Justice and may it please the Court.

I appear here on behalf of two amici, the American Civil Liberties Union, Illinois Division and the Chicago Radio Station, WAIT.

The amici are here because they believe of what is said to be a ghost which stalks the legal system.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Ghost of what?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: What is said to be a ghost, which stalks the legal system, the possibility of sentencing an innocent man to death has come to life in this case.

We believe it has come to life in this case.

We argue that police and prosecutor indecency measured by due process standards, concealed the innocence of this accused, petitioner here.

The controlling case is Brady against Maryland.

And the crucial point is the suppression of an official report of the State Bureau of Criminal Identification and Investigation to the effect that here, found in the vagina of a victim was not that of the accused.

The crucial point is that this report was suppressed for eight years.

It was known to the prosecution.

It was sent to the prosecution.

The prosecutors admitted the habeas corpus hearing that they knew about it.

The report was never disclosed.

It was brought to life for the first time in the habeas corpus proceeding in the federal court.

Justice Potter Stewart: Was there any evidence adduced by the prosecution at the trial to the effect that this hair was from the body of the defendant?

Mr. Maurice Rosenfield: Hairs were not admitted at the trial at all.

Nothing --

Justice Potter Stewart: There is no evidence at all --

Mr. Maurice Rosenfield: No evidence at the trial at all on hairs.

Justice Potter Stewart: And so this man --

Mr. Maurice Rosenfield: All we know.

Justice Potter Stewart: This man was convicted without any evidence at all --

Mr. Maurice Rosenfield: About the hair.

Justice Potter Stewart: - one way or the other --

Mr. Maurice Rosenfield: One way or the other --

Justice Potter Stewart: -- that the hair is from his body?

Mr. Maurice Rosenfield: Crucial point.

The point I'm making is that the official report of the state -- Criminal Investigation Department was exonerated, totally exonerated.

It's impossible for the mind to conceive of any explanation for that hair of being in the vagina of the victim, other than it was a hair of the attacker.

And this, we are told by recognized police manuals, all of the police manuals, happens frequently in rape and sex cases.

In fact, the cardinal principle in the investigation of such cases according to the police manuals is to search for hairs.

That was done.

Now, the fact that it was in the vagina, stands admitted on this record by the Attorney General of Illinois.

No question has been raised about that, no one has ever raised that question.

And the critical point is the suppression of the report which is not an inference, that's null and that's admitted.

The report was never disclosed.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Is there any question as to whether this was a pubic hair or not?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: We know for comparative purposes, Mr. Chief Justice that a pubic hair was taken from the accused.

The nature of the hair in the child's vagina is not exactly known.

Inference, I would think that it is pubic because the hair, the forensic medicine books tell us that hairs have different characteristics from the different parts of the body but I can't say that there's anything in the record.

All we know that it was a hair, the probability is that it was a pubic hair in the vagina of an eight-year-old child.

Now the --

Rebuttal of Justice Fortas

Mr. Justice Fortas: Your -- your position is a little different in that, isn't it?

That is to say that there was a written report by --

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: There was a written report.

Rebuttal of Justice Fortas

Mr. Justice Fortas: -- by a state scientist --

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: Which came from the Department of Criminal Investigation.

Rebuttal of Justice Fortas

Mr. Justice Fortas: And that was in the possession of the prosecution at the time, before the trial and at the time of trial, is that right?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: Yes Mr. Justice Fortas, that's the point I was trying to make.

Rebuttal of Justice Fortas

Mr. Justice Fortas: And that said that there was a plastic container which contained two pubic hairs, one from the girl and the other that was found.

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: No sir.

It contained a vaginal smear, a vaginal -- a vaginal smear from the child.

Rebuttal of Justice Fortas

Mr. Justice Fortas: Yes.

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: The vaginal smear was examined by the state department and the hair was discovered by the state department.

Rebuttal of Justice Fortas

Mr. Justice Fortas: Yes.

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: When the accused was taken into custody, one of the -- virtually, the first act the police did was to take a pubic hair from him --

Rebuttal of Justice Fortas

Mr. Justice Fortas: I see.

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: -- for comparative purposes.

Rebuttal of Justice Fortas

Mr. Justice Fortas: And the -- and the report --

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: At that point, they recognized with the size of significance of the hair in the vial.

Rebuttal of Justice Fortas

Mr. Justice Fortas: And those two hairs were --

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: Were compared --

Rebuttal of Justice Fortas

Mr. Justice Fortas: -- by the state.

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: -- and found to be a mismatch.

Rebuttal of Justice Fortas

Mr. Justice Fortas: And the state -- the state scientist who examined this so reported.

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: So reported.

Rebuttal of Justice Fortas

Mr. Justice Fortas: And that his written report so stated that it was in the possession of the prosecution before trial and at the time of trial, is that right?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: It was sent to the prosecution.

It was in the hands of the prosecution, the facts that were known to the prosecution and that is what I meant to be saying is the report that was suppressed.

Rebuttal of Justice Fortas

Mr. Justice Fortas: Now, did the -- yes, I see.

The hair that was in this plastic container or rather in the vaginal smear, was that identified as a pubic hair in the written report?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: That was -- the hair in the container was not identified in the report as a pubic hair.

In answer to Mr. Chief Justice Warren a moment ago, I said that I thought the probability was high that it was a pubic hair because pubic hairs are known to have different characteristics from hairs of -- from other parts of the body.

However, the report does not say that.

It does state that the hair of the accused which was compared was a pubic hair and therefore it was found to be a mismatch.

Rebuttal of Justice Fortas

Mr. Justice Fortas: And your point, very simply stated is that whatever the inference may or may not be that this is relevant and of great importance as part of the trial and that the prosecution had a duty to advice a defense in its existence.

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: That sir is exactly my point.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Was the confession that the -- that was introduced at the trial contested of being having been coerced?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: It was vigorously contested as having been coerced.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Did the --

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: It obviously does not meet Miranda standards but I'm not arguing that point.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Yes.

Did the -- did the defendant testify on that proceeding?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: The defendant did testify both in chambers, outside the presence of the jury and before the jury.The defendant denied -- at that point, he has denied consistently from that moment that he had ever confessed.

He is claiming that the paper he signed, he didn't know what the paper was that it was a -- he was coaxed into signing this paper in order to avoid going to the electric chair after 52 hours of interrogation.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Does he mean --

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: I don't mean to imply that all 52 hours involved interrogation after 52 hours of detention.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Did he testify at that time that the police told him they had found the hair that matched with his?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: He testified at that time and the episode is somewhat garbled.

No one paid much attention to it because it was never known until eight years later in a habeas corpus proceeding that the state report existed, exonerating report existed.

At that time, he testified that somewhere during the 52 hours of detention, he was somehow told that hair has incriminated him.

That's all it appears that that hair is somehow incriminated him.

It does not appear that it was told that a hair was in the child's vagina.

He was simply told that the hair has incriminated him.

He asked, he jumped to the microscope himself and said let me look and “them hairs don't match”.

This is his testimony at the trial in the trial record and it's all we know about the hair episode.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Now, when that was raised by the defendant, did the prosecution respond to it in anyway?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: It did not respond to it.

It did not respond to it any way.

It was not counted.

When -- I might say this Mr. Chief Justice, when the accused counsel were permitted to look at the state's evidence, there were hair, hairs were among the evidence exhibited to them but no -- not the report just for hairs as evidence that the state would rely upon, so as counsel would be jumped or they form the opinion if the hairs were somehow favorable to the state.

Hairs were among the evidence exhibited --

Justice Byron R. White: When was it exhibited?

Mr. Maurice Rosenfield: Some point before the -- at some point before the trial.

Not the report.

Justice Byron R. White: Yes, but at that point, could the -- could the matter of the examination had been pursued which had been previously turned down.

You told to Mr. Justice Fortas that there had been a motion and a denial in May.

And when it was the -- when the physical evidence was finally exhibited to the defense, at that point, did the defense had an opportunity to pursue the matter of an examination?

Mr. Maurice Rosenfield: They did not have an opportunity.

Justice Byron R. White: Did they attempt to?

Mr. Maurice Rosenfield: They asked.

Justice Byron R. White: At that time also?

Mr. Maurice Rosenfield: At that -- I don't -- all that appears in the record is that they ask several times.

How many times?

We don't know.

The prosecutor testified for habeas corpus proceeding that they asked continuously.

Rebuttal of Justice Black

Mr. Justice Black: Asked what?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: Asked for permission to examine the physical evidence, the point that Mr. Lassers --

Rebuttal of Justice Black

Mr. Justice Black: I thought you said they had it and was presented?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: They were permitted to look at it.

Look -- simply to look at it.

Rebuttal of Justice Black

Mr. Justice Black: But couldn't they protect it?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: That I don't know.

They were just permitted to look at it.

Rebuttal of Justice Black

Mr. Justice Black: It was turned over to them to look at.

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: Or --

Rebuttal of Justice Black

Mr. Justice Black: Or was it?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: I don't know.

The record is silent at it.

So I simply don't know.

Rebuttal of Justice Black

Mr. Justice Black: So we don't know whether it was turned over to them to look at it?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: Or it was just -- or it was just open to their examination and -- at some place or some point.

Mr. Lassers tells me, in the presence of the sheriff, they were permitted to see --

Justice William J. Brennan: But it was not -- none of these things was surrendered to them?

Mr. Maurice Rosenfield: None of these things were surrendered to them.

Justice William J. Brennan: Now, may I ask --

Rebuttal of Justice Black

Mr. Justice Black: Well, I don't suppose it should have been surrendered to them really.

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: That's -- if this --

Rebuttal of Justice Black

Mr. Justice Black: I suppose the state would want to keep it if it was evidence.

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: I beg your pardon, Mr. Justice Black.

Rebuttal of Justice Black

Mr. Justice Black: I suppose the state would want to keep it if it was evidence.

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: Yes, so the District Court but all things there were made available for scientific -- for examination by the --

Rebuttal of Justice Black

Mr. Justice Black: Yes, I thought (Voice Overlap).

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: By the Federal District Court.

Justice William J. Brennan: But what -- I'm not sure yet about this testimony in the accused himself about the hairs and he's looking into the microscope and so forth that this -- was that testimony the testimony that he gave at the trial in connection with the challenge to the admissibility of the confession?

Mr. Maurice Rosenfield: It was sir.

Justice William J. Brennan: And was that out of the presence of the jury?

Mr. Maurice Rosenfield: It was out of the presence of the jury.

It was at the hearing on the admissibility of the confession in which he was recounting chronologically what happened to him during the 52-hour incommunicado detention period.

Now, the treatment of this point --

Justice William J. Brennan: Does the record show whether the hairs themselves were in the Courtroom on the occasion of that testimony?

Mr. Maurice Rosenfield: It does not show.

The report certainly was not, the exonerating report.

Justice William J. Brennan: And that I gather when -- after the confession was admitted, the state as part of its case, I think you've already told us, offered no hairs as exhibit.

Mr. Maurice Rosenfield: They offered no hairs as part of their case.

Now, the Attorney General in response to all of these about the hair offers two points.

One point is a formal one that no request was made by the accused counsel of -- for the evidence we claim was suppressed.

This, we are submitting to Your Honors, that the Brady against Maryland cannot be read as requiring such a request and we have cited the case, U.S. versus Wilkins decided by Judge Thurgood Marshall which reviews all the authorities on this.

Incidentally, this point was very similar to the point that bothered the Court before the Jencks case.

It was very much the same point that a report was available to contradict and the question was raised and the point was made in Mr. Justice Brennan's opinion in the Jencks case that how could anyone be expected to know the contents of report they hadn't seen.

The other point that the Attorney General makes is that the accused himself somehow knew because of this colloquy that took place during the 52-hour detention period.

Note, the Attorney General is in the awkward position of claiming that the accused -- a statement they made to the accused that hairs matched is to be treated as fulfillment of their obligation under the Constitution to disclose that the hairs did not match.

Now, there was no disclosure at all that the hair within the child's vagina didn't match the accused hair.

There was simply some general garble conversation during this long detention period about hairs.

Justice John M. Harlan: How old is he now?

Mr. Maurice Rosenfield: He's been in the death house ten years.

He's approximately 30 years of age at the time of his conviction.

He's 40 years here of age.

Justice William J. Brennan: What you're saying is that whatever the hairs were that he saw during was 52 hours, were never identified by the prosecution as one of them being a hair from the child.

Mr. Maurice Rosenfield: Never so identified, Mr. Justice Brennan, that's just what I'm saying yes sir.

Now, an electrocution for this man was averted six hours before it was to occur only as a result of the intervention of the United States District Court in the habeas corpus case.

The District Court reached the correct result perhaps for wrong reasons.

The Court of Appeals reached the wrong result for clearly wrong reasons.

And we ask this Court to reach the right result for the right reason.

I thank you.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Mr. Michael.

Argument of Richard A. Michael

Mr. Richard A. Michael: Mr. Chief Justice, may it please the Court.

The contentions of the petitioner in this case can be basically summarized into two broad categories, one, the lack of access to certain information, and secondly, the validity of the admission of his confession at the trial.

Concerning first, the issue of the defense's access to information perhaps their most significant issue is that of the finding of the hair.

Now, with respect to this issue, it is important to first determine what was revealed and what was not revealed.

At the District Court, when the petitioner testified, he testified that when in those same proceedings he had heard the state's attorney testify as to the result of this examination.

This was the first he had ever heard about that hair.

However, this conclusion is cast into doubt by his testimony at the trial itself.

Now, I'm talking about the chambers testimony that he gave when the question of his -- the admissibility of his confession first arose for the determination by the Court before it was submitted to the jury.

At that time, he testified that in effect he testified, “They took some pubic hairs from me.

They told me that another hair that it matched with.

I demand to look in the comparative microscope.

I looked, and I said those hairs don't match.

I'm just using the exact language with --

Rebuttal of Justice Black

Mr. Justice Black: Who said that now?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: This was the petitioner, Your Honor.

Rebuttal of Justice Black

Mr. Justice Black: The defendant?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: The defendant at the trial, yes Your Honor.

Justice William J. Brennan: Did that happen in the stated -- did that happen during the 52 hour detention?

Mr. Richard A. Michael: It -- he testified to it, Your Honor.

As far as I know it is un-contradicted testimony in the record.

Justice William J. Brennan: So we can take that as true, that's what happened?

Mr. Richard A. Michael: I think that that is a fair statement on the basis of this record Your Honor.

Justice William J. Brennan: And did he also say that, might be, they said that, in the record, state officials told him during that period that they had hairs which proved his guilt as to that effect?

Mr. Richard A. Michael: I'll give you the exact language, Your Honor.

Try Volume 4, the Court will refer to this as the brown record, Volume 4, page 91 in 273 and 95.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: What page again did you say Mr. --?

What page did you say again?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: First we'll start, Your Honor with page 90.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: 90, thank you.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: At that point, he testified, about the middle of the second paragraph on page -- first full paragraph on page 90.

Also, they took a small quantity of hair from around my privates.

Rebuttal of Justice Fortas

Mr. Justice Fortas: This was testimony outside of the presence of the jury.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Yes it was, Your Honor.

This was on the admissibility of the confession.

At page 95 then Your Honors, I refer you next to that, the first full paragraph on page 95.

He says, “I was in this little room at all times in the evening of November 30, except for one time when I demanded to look through the microscope my own self, because they said these hairs belong to me.

Mr. Lich made a statement to me that certain hairs belonged to me.

He showed me some hairs there.

I demanded to go back and he took me there back into the laboratory and a small room which appeared to be a microscope room.

And I looked down and I said them hairs don't match.

I said them hairs don't belong to me.

And the chemist just looked at me and smiled.”

Rebuttal of Justice Fortas

Mr. Justice Fortas: Now, that was a couple of days after his arrest, was it not?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I'm not positive whether this -- yes on November 30, he was arrested on the 28, I believe, this was the 30th.

Rebuttal of Justice Fortas

Mr. Justice Fortas: And he's arrested on the 28th and on the 30th according to his testimony anyway, he was confronted with these hairs.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Yes, Your Honor.

Rebuttal of Justice Fortas

Mr. Justice Fortas: What's the date of the confession?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: The confession is the 30th, Your Honor, the same day in which he was confronted with these hairs.

Rebuttal of Justice Black

Mr. Justice Black: Now, did you say another page?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I thought I did, Your Honor, I was looking for it and I don't --

Rebuttal of Justice Black

Mr. Justice Black: The 273?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: 273, well that's just a repetition of the first statement, Your Honor.

This is at his testimony, this narrows his testimony, I believe, before the jury.

Rebuttal of Justice Black

Mr. Justice Black: For the jury?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: This is his testimony before the jury at 273.

All he testified here Your Honor is he said, “Then they took a bunch of hairs from around my privates.”

Rebuttal of Justice Black

Mr. Justice Black: Did he tell the jury that?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Apparently so, Your Honor.

I'm trying to -- yes, this was before the jury.

Rebuttal of Justice Black

Mr. Justice Black: So he testified before the jury about the hair, did he not?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: He testified only, Your Honor, that they took some hair from him.

Justice William J. Brennan: Not that they showed him any as noted.

Mr. Richard A. Michael: No, no Your Honor, not as he did before the -- and before the Court in private when he testified that they had showed him this hair.

Rebuttal of Justice Fortas

Mr. Justice Fortas: Did he testify before the jury on -- just on the confession in which your Illinois procedure.

Was that sworn testimony?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Before the jury, no Your Honor, or before in the --

Rebuttal of Justice Fortas

Mr. Justice Fortas: Before the jury.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Before the jury, it was sworn testimony.

Yes, Your Honor.

Rebuttal of Justice Fortas

Mr. Justice Fortas: Sworn testimony.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Sure.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Was he cross-examined on that testimony?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: He was cross-examined, but I don't believe about that -- the point that we're talking about, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: In other words, was counsel correct when he said that the state made no mention about the -- of the hairs in the whole file?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: That is my understanding of the record, yes Your Honor.

Now --

Rebuttal of Justice Black

Mr. Justice Black: Well, was that because the state decided it was not his hair?

Do you know why?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: All I can do is make an inference from the record, Your Honor.

My inference from the record is that they did have this report showing that it was not his hair, and therefore never raised that issue at trial.

Justice William J. Brennan: But they did raise it at trial.

You concede now that he has -- that we have to take it if they did tell him these hairs were his when at the time they were interrogating him before he signed his confession.

Although they knew then that at least the one that was found on the child's vagina was not his, that --

Mr. Richard A. Michael: No, no I beg to differ with you on that Your Honor.

Justice William J. Brennan: Well, what is the fact?

Mr. Richard A. Michael: The fact is that this interrogation as we said came back the 30th.

Justice William J. Brennan: Yes.

Mr. Richard A. Michael: It was taken place in November 30th.

They did not get the report, the scientific report as to the result of the comparison of these hairs until December 15, I believe it was.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Why did they tell him that they did match?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I do not know, Your Honor.

Perhaps the person who looked in the comparison microscope thought they did, but the record is -- has no information to guide us along those lines Your Honor.

Justice Byron R. White: What's the states view on the significance on the fact that on December 15, the state learned that these hairs did not match.

And that the state apparently concedes that the hair found on the smear came from the girl.

Mr. Richard A. Michael: Well, I think that that is an inference that the prosecution made at the -- made and I think that I would've done this if I were to try to contradict that it as --

Justice Byron R. White: That means your brief, as I read your brief, you concede the hair came from the vagina of the girl.

Mr. Richard A. Michael: Certainly, it was found on a Kleenex that it had been used to take a vaginal smear.

I think that it is perfectly fair to make the assumption that that came from the vagina of the girl.

Justice Byron R. White: And do you agree that it was a pubic hair?

Mr. Richard A. Michael: No I do not Your Honor.

The report of the chemist merely identified that was hair of human origin.

That is as far as we know.

Justice Byron R. White: But it's -- let's assume the defense had information that a hair was found in the vagina of the little girl and that it didn't match the pubic hair of the defendant.

I would suppose the defense would've put that testimony on before the jury, wouldn't it?

Mr. Richard A. Michael: I'm not quite sure that I followed your question, Mr. Justice White.

Would you repeat it again, please?

Justice Byron R. White: Well, I just wonder if the information the state had on December 15th from that report was of great interest for the defense.

Mr. Richard A. Michael: That they should have revealed it.

Justice Byron R. White: Yes.

Mr. Richard A. Michael: Well, of course we --

Justice Byron R. White: Well I don't -- unless we break that in two parts, let's forget about should've revealed from then.

If you were defending and had that kind of information, would you introduce it to the trial?

Mr. Richard A. Michael: I would think as the prosecution, Your Honor, that certainly if I had this sort of information that I would not introduce into my case in chief, no.

Justice Byron R. White: No, but if you were defending.

Mr. Richard A. Michael: Oh, if were defending, yes I would, Your Honor.

Justice William J. Brennan: But do you suppose it would've affected the outcome of that trial?

If the defense has had evidence that there has been found in the child a hair and that it was not the hair of the accused, if that evidence has been before the jury, do you suppose it might have affected the outcome of the term?

Mr. Richard A. Michael: We are of course, Your Honor, dealing in a realm of supposition here.

Justice William J. Brennan: I know, but that --

Mr. Richard A. Michael: I would --

Justice William J. Brennan: -- the test and on a few is whether it would affect the outcome of the trial, isn't it?

Mr. Richard A. Michael: I would submit --

Justice William J. Brennan: It might affect the outcome of the trial.

Mr. Richard A. Michael: I would submit, Your Honor, that when we had before the jury, his own confession, a admission that he made to Betty Baldwin, and we have the profession of prior admission of guilt, the fact of a hair in the vagina which did not match his, I submit to you, would not have changed the result before that jury.

Justice Byron R. White: Well, what's the -- how typical do that in this case -- differently in the case?

Rebuttal of Justice Fortas

Mr. Justice Fortas: Mr. Michael, as I understand it, you do not now represent to this Court that the hair which was found in the vaginal smear was not pubic hair.

You don't make that representation --

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I make the --

Rebuttal of Justice Fortas

Mr. Justice Fortas: -- to concede the contrary.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I make the representation Your Honor that the record shows that it was a hair of human origin.

That it does not show that it was pubic hair.

It does not show that it was not a pubic hair.

Rebuttal of Justice Fortas

Mr. Justice Fortas: And you do not here contend that it was not pubic hair?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I do contend that it was not shown to be a pubic hair, Your Honor.

Rebuttal of Justice Fortas

Mr. Justice Fortas: I understand you.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: I wonder if this is impertinent.

When on the motion to suppress the confession made out of the presence of the jury, when the defendant told the Court that while he was in jail they had shown him -- they had told him first that his pubic hairs matched with those found in the girl, and that he been looked at the microscope and -- himself and then said, “Those are not -- those don't match.

They're not my hairs.”

And the state had this report from its own laboratory to the effect that they did not match.

Do you not think there was an obligation on the state to disclose the fact that it did have such a report and that it was consistent with what the defendant said?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Your Honor, I submit that on the basis of this record, the duty to disclose is not present for three reasons.

First, I submit that in effect, we can look at it that there was really no nondisclosure at all.

He was told, according to the petitioner's testimony that a hair was found in the vagina of the victim that it matched his -- I beg your pardon that his were taken for comparison purposes and a comparison was going to be made.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: No, I understand that he testified that they said that they did match his and that there's no denial on that on the part of the state.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: There was a denial by the petitioner, Your Honor.

He was allowed to look into the microscope and said those hairs don't match.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Yes, but the state had already told him that they did match and he says that they didn't.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Does it say they didn't?

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: And by the time the hearing came on, on the motion to suppress the state had a record from its laboratory to the effect that they did not match.

Now, do you not think that those are burden on the -- on the state to admit to the Court that that was a fact rather than leave it to the Court to believe that what they had told him about the matching was true and that what he said about the not matching was not true?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I believe there is some burden here Your Honor upon the prosecution -- upon the defense.

This statement was made in the -- the statement was made, the question could've been asked by the defense.

The defense could've made a motion for -- the defense knew Your Honor that there was a hair found in the vagina of the victim.

They knew that his were being taken for comparison purposes.

They never -- they had enough information Your Honor in closing argument and nothing else had been done to make -- to argue in closing argument to say, “Ladies and gentlemen of the jury, the state knew that there was hair found in the vagina of the victim.”

The state took, mere comparison with the defendant's and they never introduced that at trial, except the information was totally in the hands of the defense, the inference can be drawn that that -- I beg your pardon Your Honor, the prosecution.

The inference can be drawn that that hair was -- that that evidence was unfavorable.

They had that amount of information in their possession, Your Honor.

Rebuttal of Justice Fortas

Mr. Justice Fortas: Mr. Michael, may I ask you questions?

Suppose that the report, I'm trying to get the state's position now, suppose at the written report in the hands of the state were to the effect that the -- in the smear, there was found a hair, that is a pubic hair, you think that it was found in the little girl, and that the pubic hair that was found there did not match the pubic hair of the defendant.

Let's suppose in other words that these were -- this sort of overwhelmingly exonerating report.

In your -- in the state's position, would the state be obligated to disclose that to the defense?

I think perhaps from my point of view that may be close to the knob of our problem.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Your Honor, we of course start with the -- with your proposition with Brady versus Maryland holds that evidence favorable to an accused relevant material to the evidence of either guilt or punishment in the hands of the -- on request, must be revealed.

We start with that as our basic proposition.

So then we ask on applying that proposition to the facts of the -- if I may, to the facts of this case first.

We submit that first there was really no nondisclosure.

We submit that he knew the hair was found in the vagina of the victim.

We knew that his were being taken for comparison purposes.

We know that he stated on the record that those hairs did not match him that that was never denied.

As thus interpreted, he knew the hair was found.

He knew what comparison was made.

He knew that they didn't matched, if we can put any credence in his own ability to compare, and I don't know enough about the hair examination to know that if a layman looks in that he can see whether it's obvious that hairs match or do not match.

But nevertheless, he admittedly denied it, immediately upon looking on it, immediately denied it and that denial was never denied.

Rebuttal of Justice Fortas

Mr. Justice Fortas: I know but maybe there are some limits to looking upon a capital case which the state demands a man's life and there are some limits to looking upon it as solely upon test of wits and abilities.

And that's why I'm asking you what state's position is on the assumption that I stated.That is say let's suppose if this were --

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: If a proper --

Rebuttal of Justice Fortas

Mr. Justice Fortas: -- regular court where totally exonerating and let's suppose that the defense, because of negligence or stupidity or whatever, did not demand the production of the report or because they didn't know of its existence, which I take it, is a fact here, did not demand the production of it.

Do you think that the state would be justified as a constitutional matter in not volunteering that information?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I would assume, Your Honor that if one, you can see the materiality of this testimony.

Now, I must add in answering this question that both the District Court and the Court of Appeals based their decision on this point upon, the question of materiality of the evidence.

The District Court stated the hair found in the vagina of the victim was of not consequence and did not prejudice the petitioner's case.

The Court of Appeals stated, there is absolutely no evidence in the record to show that that hair was in the vagina was of the perpetrator of the crime, and they further held that on the basis of the damaged condition of the body, it could've been deposited by anybody who had examined the body or anybody who had handled the body since the crime.

That was the conclusion of the Court of Appeals, Your Honor.

So, but if we assume the materiality of the evidence, if we assume a proper request was made as envisioned by Brady versus Maryland, I then ask you that that information would have to be divulged, yes sir.

Rebuttal of Justice Fortas

Mr. Justice Fortas: That of course is not my question, but that's alright, go ahead now.

Rebuttal of Justice Black

Mr. Justice Black: Do you have that pubic hair now or that hair?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I do not believe that it is amongst the exhibits now.

Maybe you know that it is not presently amongst the exhibit.

Rebuttal of Justice Black

Mr. Justice Black: It's not in existence?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: If it is in existence, I do not know where it is, Your Honor.

Rebuttal of Justice Black

Mr. Justice Black: Did the doctor who made the report record whether it was a pubic hair or not a pubic hair?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: No he did not, Your Honor.

I don't -- I beg your pardon, there was no doctor's report on that, Your Honor.

There was a chemist report.

The chemist did not -- only reported that it was hair of human origin, probably of human origin.

He uses this --

Rebuttal of Justice Black

Mr. Justice Black: Did not report whether it was pubic hair.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: They did not, Your Honor.

Rebuttal of Justice Black

Mr. Justice Black: Was there any testimony about whether there could've been any hair there from her own body at her age?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I'm not sure whether there was or not, Your Honor.

I believe there was not, but I just am not sure of that.

Rebuttal of Justice Black

Mr. Justice Black: But you have no way of knowing now whether it was a pubic hair or not?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: No, Your Honor.

Rebuttal of Justice Black

Mr. Justice Black: No way to prove it one way or the other.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: No, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: I was just wondering certainly that would not make any difference to us here for our observation but certainly the state must have that vial if that was in, wouldn't they, at this time while the case is still pending?

They had it on the habeas corpus proceeding, certainly they must have it now.

They wouldn't --

Rebuttal of Justice Black

Mr. Justice Black: They did --

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: -- have destroyed it, would they?

Rebuttal of Justice Black

Mr. Justice Black: Your Honor, I beg to differ with you, I do not think they had it at the habeas corpus proceeding.

If they had it, it would now be on the record.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Oh!

Pardon me, I understood that from the counsel that it was there.

Rebuttal of Justice Black

Mr. Justice Black: No, it was not, Your Honor.

The reason that it was not, I assume, it's because was never introduced into evidence at the trial.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: I see.

Rebuttal of Justice Black

Mr. Justice Black: So there was -- it was not given that significance.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: I just misunderstood what counsel said.

Rebuttal of Justice Black

Mr. Justice Black: We turn then to the aspect of Brady versus Maryland that requires a -- Brady versus Maryland says that nondisclosure upon request constitutes a violation of due process.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: But you don't think it's significant within Brady and Maryland there was in fact a request?

Rebuttal of Justice Black

Mr. Justice Black: Your Honor, in the light of this case --

Justice William J. Brennan: No, but please answer the question.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I beg your pardon, excuse me.

Justice William J. Brennan: You do or don't consider it significant that there was in Brady and Maryland in fact they request?

Mr. Richard A. Michael: Yes, Your Honor, I consider that that's significant.

Justice William J. Brennan: Alright.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: What do you have to say about the request that we made in this case for an opportunity to examine the evidence?

Justice William J. Brennan: I submit Your Honor that it was too broad to meet the requirements of Brady versus Maryland.

All it said in the request itself Your Honor is found at page 2 of the Volume 4 of the record.

Now, comes the defendant, Lloyd Eldon Miller, by William Malmgren, his attorney, hereby moves the Court to make an order permitting the defendant to make, or cause to be made, upon such terms and conditions as the Court may seem necessary to adequately insure the interests of the parties, a scientific examination of the physical evidence to be introduced by the people in this cause, etcetera.

Now, even under Rule 16 of the Federal Rules of Criminal Procedure, Your Honor, in order to make a -- for the defendant to make a motion to examine physical evidence in the hands of the government, it is necessary that they show the materiality and the reasonableness.

I submit to Your Honors that this motion would not be -- would be held as improper under Rule 16 of the Federal Rules of Criminal Procedure.

Rebuttal of Justice Fortas

Mr. Justice Fortas: What they're asking here was for the physical evidence that it is going to be introduced by the people in this cause.

And presumably that means that will give the state latitude to say, “Alright, we're going to have to use this, this and this and you can get it and make physical examination of it.”

So what's the deficiency under Rule 16 or otherwise?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I don't think that they have shown either the materiality or the reasonableness, Your Honor.

Now, one thing that is to be noted with respect to that motion is that they ask for the evidence that the state is going to introduce.

The hair wasn't even introduced as very technically interpreted.

The motion does not even apply to the hair.

Rebuttal of Justice Fortas

Mr. Justice Fortas: I understand that, but it does apply to this part of the case involving the shorts.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Yes, Your Honor, it does.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: And how at this particular time would the defense have known what the prosecution was going to introduce by way of physical evidence?

Rebuttal of Maurice Rosenfield

Mr. Maurice Rosenfield: I assume that they -- the only way I can answer that question Your Honor is that they were given the right to view all the physical evidence in the case.

He made that motion.

They were allowed to go in.

They were allowed to view all the physical evidence in the case.

Now, they could've based -- the hair was seen of record that they saw the hairs when they made that view.

A motion -- in addition of the fact, that the defense knew that the hair was found in the vagina of the victim, knew that hair of petitioner was taken for comparison purposes.

I do not submit that it is too great a burden on the prosecution -- on the defense.

I beg your pardon, to make a motion for their result of that examination.

Justice William J. Brennan: Did you say Mr. Michael that among the things they did see was the actual hair taken from the shorts?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: The testimony, Your Honors, states that amongst the physical evidence seen was hair and hairs.

It does not define determining further, yes.

Justice William J. Brennan: That would identify them as including that the hair was --

Mr. Richard A. Michael: Correct, Your Honor.

Justice William J. Brennan: Well, hair was in the vial, wasn't it?

Mr. Richard A. Michael: The testimony does not state how it was, Your Honor.

All it states is that “What evidence did you see when you examined it?”

“I saw hairs.”

He stated it, he didn't state whether it was in vial or how it was.

I assumed it was in the vial because that at least was the way it went to the chemist.

Rebuttal of Justice Black

Mr. Justice Black: Was the time they saw that after they made this motion?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: First they --

Rebuttal of Justice Black

Mr. Justice Black: After they made motion on page 2, was that when they saw the physical --?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: As I read the record Your Honor, first they were allowed to view the evidence personally.

Then they made the motion --

Rebuttal of Justice Black

Mr. Justice Black: When?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: They made the motion to view the evidence as I read it prior to the motion to make the scientific examination of the evidence.

Rebuttal of Justice Black

Mr. Justice Black: And were allowed to look at it?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: They were, Your Honor.

Justice William J. Brennan: And then they made the motion for the (Voice Overlap).

Mr. Richard A. Michael: Yes, Your Honor.

Justice William J. Brennan: And that was the one that was denied?

Mr. Richard A. Michael: Yes, Your Honor.

Justice William J. Brennan: Was the original motion granted is that it for defense?

Mr. Richard A. Michael: I am not aware, Your Honor, whether it was just granted by the prosecution or whether there was a court order on that.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Did the Court make -- state any reason as to why it was denying him a right to examine?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: The Court does not.

The -- in the Court the state's attorney was asked why he opposed that motion, and he testified Your Honor that he opposed it because they -- he could not be assured.

He was not assured that the evidence would not be -- the chain of evidence would not be some way destroyed by the tests that were going to be taken.

That is why he opposed it, the reason -- the ruling of the judge, however, is not in the record.

The reason or the ruling of the judge is not in the record, Your Honor.

We turn then Your Honors to the question of the bloody shorts.

Now, the chemist for the state literally testified at the trial -- testified at the trial that the shorts did contain blood.

And the state's attorney also testified -- stated in argument referred to these shorts as bloody shorts.

Now, at the District Court in the habeas corpus proceeding --

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: May I ask before you get to the District Court.

If the prosecuting attorney describe the blood that was on them or the amount of it, or did he make any representation as to whether this is blood on the shorts?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I do not think the record indicated that he pointed to any spot, Your Honor.

It said this is blood.

He referred to the document in general as the bloody shorts.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Well, there are more than spots on that.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Yes, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: It's covered with something which they now say is paint.

And I wonder if was that represented to the jury in any way as being the blood stained shorts without distinguishing --

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: No statement was made to the jury Your Honor, as far as I know that there was any paint on these.

There was then therefore, the jury would, I assume allow to draw the inference that all the spots were those of blood.

On the other hand, I do not think any direct statement was made any given spot or all spots were blood.

Rebuttal of Justice Black

Mr. Justice Black: When did the question first come up about the paint?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: As far as I know Your Honor, in the District Court they did make a scientific examination of all the evidence.

One Martin, a chemist employed by the petitioner here, took 12 strands at out of the more heavily stained areas of that garment, 12 fibers.

He examined those 12 fibers, each out of one of the heavily stained areas.

His testimony was that ten of the fibers contained paint.

One of the fibers are kind of a carbon substance and one of the fibers an unidentified substance.

Rebuttal of Justice Fortas

Mr. Justice Fortas: Mr. Michael, when the shorts were introduced at the trial, did the defense make a motion at that time that they be permitted to have a scientific examination of it?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: As far as I know Your Honor, and I think this is correct, the only motion from the scientific examination was the one that we have referred to with respect to --

Rebuttal of Justice Fortas

Mr. Justice Fortas: Alright, now try to get at the theory of this case.

Suppose at the trial, the state offers the shorts and testimony is to be offered or is being or has been offered to the effect that those are blood stains.

The defense then moves in an appropriate way to be given the opportunity to have a scientific examination of the shorts.

In Illinois law, what would happen?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Generally speaking, I would submit that it would be granted, Your Honor.

The general rule under Illinois law is that, it was enunciated by the Court by the way in reviewing this case, is that there is a qualified -- red-light lining to the discretion of the Court to allow the defense to make scientific evidence of the --

Rebuttal of Justice Fortas

Mr. Justice Fortas: I suppose the trial judge said in all this, “No, I won't let you do that.”

Would that be an error under Illinois law?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: If there were no further basis than that Your Honor, I submit that yes it would be.

Rebuttal of Justice Fortas

Mr. Justice Fortas: I thought you said there was discretion on it?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: It could be reviewed however for abuse of discretion.

Rebuttal of Justice Fortas

Mr. Justice Fortas: You think it would be introduced as discretion?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I would if there were no reason at all for denying a motion to make scientific evidence, I would submit that it would be in abuse of discretion.

Rebuttal of Justice Fortas

Mr. Justice Fortas: Why, because it's a denial of fair trial?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Yes, sir.

Rebuttal of Justice Fortas

Mr. Justice Fortas: Well why, that's constitutional principle too, isn't it?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: To the extent that Brady versus Maryland so enunciates it, yes sir.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Did -- may I ask this, did the report of the state's experts who examined these shorts report that the major portion of what's on there is paint?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: The report of the state's expert on that Your Honor was that he had examined it, he had found paint and he made no -- I take it back, he had found blood and he made no test for any other substance.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: And he made no reference in his report that the -- that what is so observable there is paint and not blood?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: The chemist did not, Your Honor.

The state's attorney in the District Court did testify that he knew that all of the stains on it were not blood.

That is all we have in the record on that issue.

Justice William J. Brennan: He knew that at the time that the shorts was introduced in evidence?

Mr. Richard A. Michael: He so testified in the District Court, Your Honor.

Justice William J. Brennan: But he didn't disclose that time?

Mr. Richard A. Michael: He did not, Your Honor.

Justice William J. Brennan: You know whether in summation he used the garment in his summation to the jury?

Mr. Richard A. Michael: He certainly referred to the bloody shots.

Of course, the report of the short hand report, it would not indicate whether he was waiving it or --

Justice William J. Brennan: But at the time he made reference to it.

Mr. Richard A. Michael: He did, Your Honor.

Justice William J. Brennan: He knew that there was -- that at least all of the spots were not blood but some or something else.

Mr. Richard A. Michael: Yes, Your Honor.

Justice William J. Brennan: And said nothing about it.

Mr. Richard A. Michael: Yes, Your Honor.

Justice Potter Stewart: Where does that -- I want to be sure he's sure what he did admit it to his knowledge at the time of -- at the clemency hearing or at the habeas corpus hearing --

Mr. Richard A. Michael: At the habeas corpus --

Justice Potter Stewart: -- he admitted as to his knowledge at the time of the trial that some of the stains, that at least some of the stains were not blood.

Mr. Richard A. Michael: Volume 2, Your Honor, page 581.

Justice Potter Stewart: Volume 2, page 581.

Well, this -- is this the prosecuting attorney at the trial who's testifying?

Mr. Richard A. Michael: Yes, I beg to change that to make it 580, Your Honor.

Justice Potter Stewart: 580?

This is Blaine Ramsey?

Mr. Richard A. Michael: This is Blaine Ramsey, yes Your Honor, at the bottom of the page.

“Let me ask you this Mr. Ramsey.

As a matter of fact Mr. Ramsey didn't you know at the time of the trial Lloyd Eldon Miller Jr., that these spots in this examination were not blood?”

“Oh!

I knew that all of them were not blood, yes sir.”

Justice Potter Stewart: That's what you were referring to the --

Mr. Richard A. Michael: Yes, I was.

Justice Potter Stewart: Thank you.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Then he said also, “With regard to those that can be seen by the naked eye, you knew at the time of trial, didn't you, that those spots that could be seen by the naked eye were not blood spots.

You knew that, didn't you?”

“Well not conclusively.

I had knowledge from a chemist that there was blood on it.”

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Yes sir.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: I see that's his further testimony.

Justice William J. Brennan: Mr. Michaels, who was Mr. Litterly?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: He was a chemist, Your Honor, employed by the state bureau of -- I don't really -- criminal -- the scientific arm of the state government at that time.

Justice William J. Brennan: What about the statement on his testimony at 581.

“Now as to those spots which you knew were not blood, what did you know those to be?

What did you know of those Mr. Ramsey?”

“I'm trying to recollect that.

They said there was also paint on that I think that is remembered only.”

“Who said it was paint?”

“I presume Mr. Litterly but I really do not recall.”

Is that -- are we to get -- take from this that he's suggesting that at the time it was offered at trial, he knew more of then that there were some spots were not blood, he knew that there were spots that were paint, is that it?

Mr. Richard A. Michael: He testified there Your Honor that he knew that some of those spots were paint, I would assume.

Justice Byron R. White: But Litterly testified at the trial that he didn't make test on the non-blood.

Mr. Richard A. Michael: Right, Your Honor.

He testified only that he had examined for blood and he had made no other tests on the garment.

Justice Byron R. White: But in order to -- he tested for blood but he didn't find blood in some of those spots.

At least that is a fair reading of his testimony.

He knew that some of the stains were not blood, so he did test the stains for blood.

And if the prosecuting attorney knew at the time that some of the stains were not blood, the only source of information could be from Mr. Litterly, I presume.

Mr. Richard A. Michael: Yes, I would assume that that would be correct.

Justice Byron R. White: And his source of information would I assume be a written report?

Mr. Richard A. Michael: The written report from Litterly is in the record, and at my recollection of it, it is in the echo -- the report of the exhibits.

The report of Litterly is found at --

Justice William J. Brennan: This is not the trial, isn't it?

Mr. Richard A. Michael: No this is the exhibits from the habeas corpus proceeding, Your Honor.

Justice William J. Brennan: Habeas corpus.

Mr. Richard A. Michael: I think it's number six, Your Honor I'm looking at it now to verify it.

Yes, it is petitioner's exhibit number six.

Justice Byron R. White: This is what the prosecuting attorney knew?

Mr. Richard A. Michael: Yes, Your Honor.

Justice Potter Stewart: Where -- which one of these items applies to the --

Justice William J. Brennan: The reproduction is not very good.

Mr. Richard A. Michael: No, it isn't Your Honor.

I'm trying to Your Honor, I'm -- do you have one of your first?

Yes, that's much better.

Justice William J. Brennan: I see some --

Mr. Richard A. Michael: It's -- at the next to last page, Your Honor.

Justice William J. Brennan: Can you read it?

Mr. Richard A. Michael: Yes I can from the original or much better copy of the report than you have available.

Justice Potter Stewart: The pair of white jockey shorts?

Mr. Richard A. Michael: Yes, Your Honor.

Justice Potter Stewart: Described as number 17?

Mr. Richard A. Michael: Were examined by chemical means and found to be heavily stained with blood.

Further serological examination include the blood was of human origin.

It was probably of group A.

Numerous hairs and fibers were herein to the shorts and were mounted in microscopic examination, a comparison of those hairs of pubic hairs 10 to 15 millimeters.

Some similar characteristics, no definite opinions of whether or not the common origin is possible.

One of the fibers found in the shorts was mounted and compared microscopically, samples of the fibers of the inner pant lining the color, size, etcetera.

Justice Potter Stewart: No mention of paint at all.

Mr. Richard A. Michael: No mention of paint, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Oh, what page is that on do you say?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: These are not numbered, Your Honor.

This is exhibit number six, the next to the last page, Your Honor.

Justice Byron R. White: Well, this -- there's no mention here that some of the stains were not blood.

Justice Potter Stewart: No.

Mr. Richard A. Michael: No there is not, Your Honor.

Justice Byron R. White: Well, then where did the prosecuting attorney get his information that some of the stains were not blood?

Mr. Richard A. Michael: I do not know, Your Honor.

All I know is that in the District Court he --

Justice Byron R. White: Well, how about Mr. Litterly's testimony?

He did testify that some of the stains were --

Mr. Richard A. Michael: Yes.

He testified that he -- he did not testify that some of the stains were not.

He testified that he knew that some of the stains were not blood.

Justice Byron R. White: Well, how about the testimony at the trial?

Mr. Richard A. Michael: Litterly's testimony at the trial you're referring to now, Your Honor?

Justice Byron R. White: Did he then say -- he didn't make any mention at all as to other stains, did he, in his testimony?

Mr. Richard A. Michael: No, Your Honor.

Litterly's testimony at the trial appears in the brown colored Volume 4 at page 168.

Justice Byron R. White: Okay, thank you very much.

Mr. Richard A. Michael: It stated, “I examined and tested People's Exhibit 3 to determine the nature of the staining material thereon.

That result of the first test was that this material upon the shorts is blood.

I made a second examination it's as close as the blood of human origin and made a further examination which disclosed that the blood was of group A.”

That was his testimony at that time.

Justice William J. Brennan: Well, now that -- he made more -- testify?

Mr. Richard A. Michael: Pardon me?

Justice William J. Brennan: More fully did he, on the habeas corpus?

Where was it that he finally conceded that some of the --

Mr. Richard A. Michael: I'm not sure that he ever did.

It was the state's attorney who conceded that he knew that some of the stains were not blood, Your Honor.

Justice William J. Brennan: That's the thing I referred to in form of my question.

Mr. Richard A. Michael: Yes.

Yes, Your Honor.

Justice William J. Brennan: I see.

Mr. Richard A. Michael: We submit that on this issue, Your Honors, the critical point is whether there was blood on these shorts.

The petitioner testified that he --

Justice Potter Stewart: Well, don't you think under a case like Napue against Illinois, the critical point is, even if there was blood on those shorts, a misrepresentation that the stains you could see there was blood when they knew it was -- if they knew it was paint.

Mr. Richard A. Michael: If there --

Justice Potter Stewart: Isn't that the knowing use of concept of misrepresentation by the prosecution in a criminal case?

Mr. Richard A. Michael: If there is blood on these shorts, Your Honor, and the mere testimony by the prosecution only is that there are -- is blood in these shorts.

And if they do refer to them as bloody shorts, if there is blood on them, I submit that even though there's also paint, there is no going beyond the truth, if you will, as indicated by Napue.

Justice Potter Stewart: Well, as I understand it, today you can't find any blood on it?

Mr. Richard A. Michael: That is correct, Your Honor.

Justice Potter Stewart: On what's in there.

Mr. Richard A. Michael: However, the chemist for the prosecution did testify that he had no opinion today as to whether there was any blood on it or not.

Justice Potter Stewart: Today the appearance of those and the --

Mr. Richard A. Michael: Except for one stain, Your Honor that is unidentifiable in origin.

Justice William J. Brennan: Well, Mr. Michaels as you held those up, I don't -- it hardly seems an unspotted -- look at that.

Mr. Richard A. Michael: It --

Justice William J. Brennan: If the blood has now disappeared, there's certainly an awful lot of paint.

Mr. Richard A. Michael: Yes there is, Your Honor.

Rebuttal of Justice Fortas

Mr. Justice Fortas: Suppose the prosecutor had expressly represented to the jury that all of those spots were blood, would that have been your judgment, would that have been error under Illinois law?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I would think not only under Illinois but under the decision of this Court it would have been, Your Honor.

Rebuttal of Justice Fortas

Mr. Justice Fortas: That's because it would've not been consummate with our ideas of a fair trial.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Yes sir.

Rebuttal of Justice Fortas

Mr. Justice Fortas: So that what we have here is the variation in the sense that there was represented but there was blood on the shorts with no particularization of the exhibit, which was physically before the jury.

It was not all blood but mostly paint as to the appearance to the naked eye now.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Yes sir.

However, I do want to go back to the point I was making with respect to Mr. Justice Stewart's question.

The petitioner did testify in his confession, admitted in his confession that these were his shorts.

The critical issue --

Justice Potter Stewart: Incidentally, where does this confession appear here, anywhere I can't --

Mr. Richard A. Michael: Yes, it is in the record, Your Honor on before -- it appears really in two places.

One, Mr. Christensen who took the confession, testified as to what he said to him during the interrogation and then another time that Mr. Baudino read his confession into the record.

Justice Potter Stewart: Where are the two places?

Mr. Richard A. Michael: Mr. Christensen's statement begins on 128, I believe it is, Your Honor.

Justice Potter Stewart: That would be of Volume 1?

Mr. Richard A. Michael: This would be the trial transcript, Your Honor, the brown covered by --

Justice Potter Stewart: Volume 4.

Mr. Richard A. Michael: Volume 4.

Justice Potter Stewart: 128.

Sorry to take your time but I haven't --

Mr. Richard A. Michael: No, no.

Then you have the -- we are looking now, Your Honor, for the -- where the confession.

Justice Potter Stewart: Right, thank you very much.

Rebuttal of Justice Black

Mr. Justice Black: Was there any evidence in the record of about how that paint got on those shorts?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: No, there's nothing at all, Your Honor, as far as I know.

Rebuttal of Justice Black

Mr. Justice Black: What was this man's occupation?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Would you excuse me?

The confession Your Honor of the defendant was right under the record of page 144.

Pardon me, Your Honor?

Rebuttal of Justice Black

Mr. Justice Black: I asked, what was his occupation?

As I recall it was evidence of him being a taxi driver.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Yes there was, Your Honor.

Rebuttal of Justice Black

Mr. Justice Black: He was not a painter.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: No, he was not, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: I understood there was some evidence in one of the proceedings to the effect that these shorts did not fit the defendant.

Is there anything from the prosecution to rebut that?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: The testimony was, Your Honor, that the -- they would've been tight and uncomfortable if he had worn them.

There's nothing to rebut that, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Was there any rebuttal of that?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: No, there was not, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Anything to show that the confirmation of the man had changed in the years that he was either fatter or thinner at the time this testimony was taken and at the time of the crime?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: No, there was not, Your Honor.

Justice Potter Stewart: Perhaps I misunderstood.

I thought you were starting to tell us at the time that I interrupted you to ask you where in the record the confession appeared.

I thought you were trying to starting to tell us that in his confession, he admitted that those shorts were his?

Mr. Richard A. Michael: Yes, he did Your Honor, in his confession.

He later denied it.

Justice Potter Stewart: But he never made any confession.

Mr. Richard A. Michael: Yes, but in his confession he admitted that the shorts were his.

And so I submit that the relevant question is whether they did contain blood.

If they did contain blood, this was the critical point.

The presence of paint in addition to the blood, I respectfully submit, was immaterial.

Rebuttal of Justice Black

Mr. Justice Black: Where did they get the shorts, from him?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: They found -- a policeman found them in a old abandoned apartment building which was referred to at that time as the Van Buren Flats.

In his confession, he stated that he had discarded them in the Van Buren Flats, but if I remember the testimony correctly, the police had found it before his confession if I'm not mistaken on that point.

Justice William J. Brennan: I'm sorry must have read them -- perhaps I read it too quickly.

This is the confession at page 145?

Mr. Richard A. Michael: Yes, Your Honor.

Justice William J. Brennan: 147, can you refer me to the admission that these particular shorts were his?

I see that there is -- he states that he removed the shorts, but I don't find any --

Mr. Richard A. Michael: Perhaps it was in the statement of Mr. Christensen sir.

Justice William J. Brennan: I see.

Mr. Richard A. Michael: If you don't find it there.

Justice William J. Brennan: I don't find it in the confession.

Justice Potter Stewart: I found -- I find on a page 130 that he said he did this -- discard his shorts at Van Buren Flats, but that doesn't -- that's not the same as saying that those shorts are his.

Mr. Richard A. Michael: I agree with that, Your Honor.

My recollection from the record is that he was shown the flats and he stated that they were -- I maybe in error on that.

It was my recollection from reading the record, Your Honor.

Rebuttal of Justice Black

Mr. Justice Black: Well he agreed that -- he conceded that they had been left at this place and they found these at that place.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Yes, Your Honor.

Rebuttal of Justice Black

Mr. Justice Black: That's probably might be accountable for your error.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: That is --

Justice Potter Stewart: I find what you're referring to now, on page 132 just below the center of the page.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Mr. Michael, I gather the impression from reading the phrase that the state in introducing the confession and the presentation of its case told the jury or left the impression with the jury that he have had obtained the confession of the defendant and then had verified it through these things and that they had found these things as a result of the confession.

And I gather the impression also that there had been evidence later produced to show that they had these things before the confession and verify them by this confession.

Now, did the state deny the latter?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: As I remember that point, Your Honor, it's my understanding that the reading of the record that the items were found before the confession.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Yes.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Now --

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Was that at any time represented to the jury that these things were found afterwards as a result of that confession?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: The petitioner has claimed that they are, Your Honor.

As I read that section that he referred to, I was not -- I thought it was ambiguous which way they were referring to it.

Justice William J. Brennan: Would you have that citation recorded?

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Don't you think that's -- that might be important?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: If there were knowing misrepresentation to closing argument, I would say it would be very significant, Your Honor.

If there was no evidence, however, brought out that he deliberately misstated anything, it is possible that a mistake could occur in -- by prosecution in closing argument which would not be deliberate mistake and would not amount to constitutional proportions.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: But neither that an important thing, it seems to me, whether these things were found and developed as a result of the plain confession that he made or whether they had these things and before the confession and did not report it to the --

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: The argument that you are referring to, Your Honor, is on page 375 of the volume printed by this Court, Volume 4, Your Honor.

And it relates to the jacket of my -- attorney for the petitioner in form where he relates --

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Where is that, the upper part of the volume?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: About the middle of the page I believe, Your Honor.

They could not have known, but when they put it there to find, the jacket was found where he had said he had put it.

Words are about the middle of the page, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: 275?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I beg your -- 375, I beg your pardon.

Justice William J. Brennan: That's the one they could not have known, but when they went there to find the jacket it was found --

Mr. Richard A. Michael: Yes sir.

Justice William J. Brennan: -- where he said he put it.

Mr. Richard A. Michael: Yes, Your Honor.

We turn then Your Honors --

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Now, did -- is -- which is true, that they did find this thing after the confession or before?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: My understanding of the record is that they found it before the confession, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: And that this, while it might not have been with intention to deceive, but was, untrue?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: If that is -- as I read that, Your Honor, I am not absolutely clear just what the meaning of it.

If you interpret that as saying that we took his -- what he told us and went out and there we found it then it would be untrue, yes Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Yes.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: We turn then to the question of the advice to Mrs. Baxter that she had a right not to talk to the defense in this case.

Now, Mrs. Baxter testified at the pardon and parole proceedings that she had been receiving many calls and was being bothered by the defense attorney and she was, in her words, perturbed.

She called up the state's attorney and asked what the situation was.

He told her in effect that, “You have a right not to talk to the defense if you want to.”

This is corroborated by his own testimony at the District Court where he testified that he told other witnesses amongst her that by request that they had a right not to talk to the defense and they must make up their own mind whether they wanted to or not.

Now, we submit that this statement is absolutely correct.

Absent a subpoena to some particular hearing, every private individual has a right not only to talk not to the defense, but not to talk to the prosecution, absent an appropriate subpoena.

We submit that there was absolutely no violation of any rights in respect to that statement.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: I was wondering about her testimony when it was offered and when the Court was asked for permission to permit her testimony as a court witness.

The prosecution said they would consent to it only if her unreliability was conceded.

Now, why would that -- is that a normal thing?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Let me correct that statement.

Just -- my understanding, Your Honor is with that the Court said that rather than the prosecution.

The Court said, “If you will state to me that she is unreliable in some way, I will allow you to call her as a court's witness.

If you do not so state then I will give you great latitude in asking leading questions and various examinations you want, but I will not call her as a court witness.”

They then refused that offer -- they refused the Court's offer to have called her and have this great leeway in question -- with respect to leading questions.

I assume they testified because they did not want to be bound by the testimony of someone whom they did not know who was going to testify.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Is that a test of whether a person -- the defendant should be entitled to call a witness as the Court's witness that he must admit that there's some unreliability?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: I think it is -- the question is pretty much within the discretion of the Court, Your Honor.

And I don't think it's subject to review for abuse in the same way as the scientific evidence was as I referred earlier to the question of Mr. Justice Fortas.

I think that if the Court -- if you can show some reason to the Court why he should be called as the Court's witness, that he pretty well usually is.

The Court, in exercise of its discretion in this case, merely believed that they had not shown sufficient grounds to exercise his discretion in that regard.

We turn then to the question of the unreliable witness, Betty Baldwin, not Betty Baldwin-Curry.

The prosecution -- the petitioner in this case contends that the prosecution was in error for calling that witness when they knew that she was unreliable.

We submit, Your Honors, that there is absolutely no constitutional requirement that prohibits the calling of a witness, who in the past has not been believed if, and this is the big if, they do believe her testimony on this occasion.

Now, on this occasion, the evidence is rather complete that at least two people so testified that they fully believed her on this occasion.

On that basis, they called her and we believe that it is a proper to call a witness whose testimony you believe even though at some past occasion you may not have believed this witness' testimony.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Which one would they believe?

Which part of her testimony would they believe, for in the Court, she said she had known him for two years and prior to that time she had told the police that she knew him for five weeks?

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Well, there is another factor in that regard, Your Honor.

When -- if the she had told the police that she knew him at the time of the crime for five weeks.

Now, this question was asked at the trial which was ten months after the crime.

How long have you known him, not how long had you known him Your Honor, not how long had you known him at the time of the crime, but how long have you known him, which means from the present past.

And I submit, Your Honor, that the correct answer to that would have been 11 months, because she had known him at the time that question was asked for 11 months.

Now, I submit Your Honor, that to allow that to go unrefuted is absolutely immaterial.

There is no materiality at all in this record to the significance of whether that she had known him 11 months or two years.

The defendant states there is some materiality --

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Do you have the citation to that, but don't take the time to look.

If you don't know, don't bother.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: You mean as to the -- where as to the formal questioned asked?

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: As to whether they said, “How long have you known him?”

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Yes I have it right here, Your Honor, it's in Volume 2, -- Volume 2 page 702 at the top of the page.

At the very top of the page, Your Honor, it refers “Do you know the defendant Lloyd Eldon Miller?”

She said, “Yes sir.”

“How long have you known him?”

“Approximately two years.”

The principle -- there is concluding that thought Your Honor also if there's a contention under Napue versus Illinois that they allowed knowing testimony to go in the record as they did not contradict that statement.

There is absolutely no evidence in this record that they were aware of the statement was made.

Now, there was the fact that that statement had been made to the prosecution, but there was no evidence that they had gone down that statement and checked every one of her answers against them, I'm sure they knew it in substance.

But this was such a, I submit, immaterial point that they probably didn't even realize that she was violating the statement that they had given, or at least there's no evidence in the record that they had, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Mr. Michael, may I ask you concerning this witness if it is the fact that they have concluded before this proceeding that this witness had made a false accusation against another person for a crime that she said he had confessed to her but was not true.

And then also that she had made another one which was under investigation and which the experts found that it was inconclusive but they believed that she was not telling the truth and that the county authorities who prosecuted this case suggested that they discontinue the investigation of the truth of that statement until this case was tried so she could be a witness here.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: Your Honor, what you say is very -- is in substance.

Now, I know of only one prior occasion that she had made a story about another crime that was this narcotics story.

With respect to that statement, she was given a lie detector test to check whether it was right.

The result was inconclusive.

They said that they found -- they did not believe her, although the test was inconclusive and that they were going to drop the matter.

The only other instance that I can think of which talks to their -- to the unreliability relates to the statement that Mr. Malmgren, the attorney for the petitioner had tried to coerce this witness.

Now, as far as I read the record in this case, those claims have never been disproving, Your Honor.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: I understood that there was an investigation of that, and the authorities indicated that they thought that was not true, but the people who prosecuted this case suggested that the investigation be discontinued until after the trial of this case.

Rebuttal of Richard A. Michael

Mr. Richard A. Michael: That was -- the statement that they believe was not true of hers related to the narcotics story, Your Honor.

There was no evidence one way or another whether they believed the story with respect to the Attorney Malmgren.

However, they did -- the statement -- the prosecution did say, “Let's not get that question out of this case so there'll be no question of prejudice,” you know, to the defendant by the fact that his attorney made the some question of improper statements to a prosecution witness.

So that was how it all advanced and was either the last statement in the record on that Your Honor is that it either still pending or is been dismissed.

I assume it has been dismissed, but there has never been a hearing on it.

It has never been proved conclusively one way or another whether that allegation was correct or not.

Thank you, Your Honors.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Mr. Lassers.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Mr. Chief Justice, and may it please the Court.

I believe that everything that we desire to say has been said, unless the Court has questions, I have nothing further.

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Very well.

Justice Byron R. White: Can I ask you one last question?

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Certainly.

Justice Byron R. White: In your petition for habeas corpus in the District Court, did you rely on the ground of coerced confession?

Mr. Willard J. Lassers: Yes, Your Honor.

My recollection is that we did.

Yes, we did rely on that.

Justice Byron R. White: Well, did the District Court rule on it or not?

Mr. Willard J. Lassers: He ruled that it was not coerced, Mr. Justice White.

Justice Byron R. White: Did the Court of Appeals rule?

Mr. Willard J. Lassers: I think they did.

Justice Byron R. White: But at least you -- this is not the first time you've raised the issue of coerced confession in this Court, isn't it?

Mr. Willard J. Lassers: In this Court?

Justice Byron R. White: You've raised it below, on the preserved two points of the --

Mr. Willard J. Lassers: Oh, yes!

Rebuttal of Chief Justice Warren

Mr. Chief Justice Warren: Very well.

Rebuttal of Willard J. Lassers

Mr. Willard J. Lassers: Thank you.

Featured:

Giles v. Maryland - Oral Argument

Thu, 23 Aug 2012 18:12:07 +0000

Case:

Giles v. Maryland

Media File:

27_19661012-argument.mp3

Related Transcript:

27_19661012-argument

Transcript:

Argument of Joseph Forer

Chief Justice Earl Warren: James B. Giles et. al, petitioner versus Maryland.

Mr. Forer?

Mr. Joseph Forer: Mr. Chief Justice and may it please the Court.

This case arose as a proceeding under the Maryland Post-Conviction Procedure Act which is a statutory substitute for habeas corpus and coram nobis.

The petitioners who were serving life sentences and are serving life sentences following the commutation of death sentences challenged their conviction for rape under the Act on constitutional grounds.

The first question that I will argue is whether the conviction of the petitioners was obtained in violation of due process by reason of the prosecution suppression of material evidence favorable to the accused.

And for that purpose, I must first give you a condensed summary of the evidence which came out at the petitioner's criminal trial.

The petitioners are brothers.

On the night of July 20, 1961, they were swimming and fishing in the Patuxent River near their home.

As they left the river with the companion Joseph Johnson, they encountered 500 feet from the river in deep woods an automobile.

In that automobile were two people, a 16-year old girl named Joyce, and a 21-year old man Stewart Foster.

Justice Potter Stewart: What time of the night was it?

Mr. Joseph Forer: This was late at night close to midnight.

An altercation started at the car between the Giles brothers and Johnson on the one hand and Stewart Foster on the other.

The testimony is in conflict as to what caused the altercation and who provoked it and for present purposes, I'd not go into that.

But very early in the altercation, at the time when James Giles and Johnson threw some stones at the car, Joyce ran out of the car and into the woods along the side of the dark road.

According to her testimony, she ran a distance of 30 feet at which point she stopped because she said she was out of breathe and she had fallen.

John Giles soon afterwards left the car while the altercation was still going on to come back into the woods and came upon Joyce.

The two of them were together there for approximately 10 or 15 minutes during which time they had some conversation.

Joyce herself testified that she was the first person to introduce the subject of sex.

In that she offered John Giles to have intercourse with him if he would help her get away.

John Giles also testified to that offer.

But he gave it a little more body, he testified that she also explained to him that she was on probation and couldn't afford to get caught in the woods and didn't want to get in any trouble and for that reason she was anxious that he help her get away.

After they have been quietly in the woods together for a while.

The altercation of the car ended when Stewart Foster was knocked out and then ran off.

The other two young Negroes, Joseph Johnson and James Giles, came into the woods along the same path and they came upon John Giles and Joyce.

At this point, there's a very serious cleavage in the testimony.

Joyce testified that the three men were there and that each one of the three they're after having intercourse with her.

She testified that she did not resist, she testified that she made no outcry, she also testified that she made no remonstrance.

She didn't even say to them, “Please let me alone.”

She also took off her own clothes.

This was her own testimony.

She said she submitted this way because she was frightened.

The Giles brothers testified that as the two who had been delayed came along the path, Joyce called them over saying to John, “Well I know what you boys want.”

Then she called them over and said, “I know what you boys like” and then urged them to have intercourse with her.

She took off her own clothes, she was the stage master of the affair.

She directed the order of intercourse.

And then the course of this transaction, she told them that she had had 16 or 17 other boys that week and two or three more wouldn't make any difference.

She told James Giles that she was in trouble, and that if she were caught in the woods, she would have to claim that she was raped.

She repeated to John Giles that she was on probation and that if she were caught in the woods, she said she would have to claim she was raped.

According to the testimony of the Giles brothers, John Giles refused the invitation of the intercourse, the other two accepted the intercourse.

At the trial, on redirect examination by the state, Joyce was asked if she was in fact on probation at the time of this episode.

She denied that she was on probation and thereafter on cross examination of the petitioners, the State very effectively ridiculed their testimony that she had told them that she was on probation.

At the trial, the Giles brothers being indigent or represented by court appointed counsel. Joseph Johnson, the third man in the affair was also indicted but he got his case severed and transferred at Orlando County and he's not in this case although it's an open secret that his faith abides this case.

The trial started on --

Chief Justice Earl Warren: What was that last you said?

Mr. Joseph Forer: I said it's an open secret that his faith abides the result in this case.

Justice Byron R. White: Has he been tried?

Mr. Joseph Forer: He has been tried, convicted, sentenced to death commuted.

Post conviction petition filed and by agreement with the state every batch has been held up to see what happens here.

Justice Potter Stewart: Why was that trial a different kind?

Was it a change of venue?

Mr. Joseph Forer: He got a severance and a change of venue.

Justice Potter Stewart: Change of venue.

Mr. Joseph Forer: Yes.

Justice Potter Stewart: There's no question about the venue where this alleged crime --

Mr. Joseph Forer: Oh no, this happened in Montgomery County.

Justice Potter Stewart: Yeah, yeah.

Mr. Joseph Forer: The Patuxent River is the border line between Montgomery and Howard and they were on the Montgomery County side.

Now, the trial started one day December 4 and it ended the next that's from the choosing of a jury for the jury verdict of guilty.

The only defense witnesses for the petitioners with the technical and academic exception that the defense counsel also called two of the policemen and they tried unsuccessfully to get them to admit that Joyce had originally told the police that she was even raped by two men rather than by three.

They denied it and the only listed to help defense, the whole thing was a factless maneuver because Joyce had already admitted that she had originally told that to the police.

The case went to the jury.

It was a conflict between credibility.

This all white jury had to decide whether to believe this 16-year old white girl or these two young Negroes.

And the story that these two young Negroes gave was the most implausible story.

It was that under these rather frightening conditions, the 16-year old child solicited intercourse with three Negro strangers.

For the jury to believe their story, they would have to find that this 16-year old child was incredibly wanted that she was probably mentally disturbed and there was no evidence of either condition.

They would also have to believe that this girl who was not on probation went around intuitively telling people that she was on probation.

The jury found them guilty and their story didn't impress the trial judge, Judge Pugh, very much either because although under Maryland law, he had a choice of sentence from 18 months they day he imposed to that sentence.

These two brothers were at that time aged 20 and 22.

Joseph Johnson didn't feel any better in this trial at Minneapolis.

After the appeals were exhausted on November 16, 1962, 11 months after the verdict, a new trial motion was filed on behalf of the petitioners alleging the newly discovered evidence.

The circuit court denied this motion without even looking at the newly discovered evidence on the ground that the motion was filed too late.

They said under Maryland rules if you want to file a motion for a new trial on the base of newly discovered evidence you have to file within three days after verdict.

This ruling was affirmed by the Maryland Court of Appeals.

Subsequently, in October of 1963, Governor Tawes commuted the death sentences of the three men, that is, for two petitioners and Johnson to life.

This post conviction proceeding was filed about six months after that in May of 1964.

It was heard in the circuit court of Montgomery County though before a different judge than the sentencing judge.

And after an evidentiary hearing, the circuit court found that the petitioners had been denied due process by reason of the fact that the prosecution had suppressed material exculpatory evidence.

The state appeal and the Court of Appeals reversed -- the Court of Appeals heard the case en banc and they reversed five to two.

And that then we came here.

Before I get into a discussion of the evidence which came out at the post conviction trial and a description of the evidence that we claim was suppressed, I would like to mention a couple of the legal issues that are involved.

The legal issues in the suppression point all arise out of one sentence.

They all arise within the framework of one sentence over the Court's decision, 1963 decision in Brady against Maryland.

And in that case, the court said and I quote, “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution.”

Now, in that case, the qualification of on request is explainable by the fact that in that case, the evidence which had been withheld had been requested.

In fact, none of the lower courts which have passed on suppression cases have ever made a requirement that the defense had to request the information before the nondisclosure could be excused.

And this is true of cases which were decided before Brady including two Third Circuit cases which Brady cited with approval of stating the correct rule and two of cases cited after Brady and it was true in this very case.

In this very case, the Maryland Court of Appeals did not require a showing of a request for disclosure and it is perfectly obvious that the -- if you -- a requirement of a request would defeat the rule because the time when a defense needs disclosure the most, is when the defense is so ignorant and so uninformed that it doesn't know what to request or even whether to request.

So for the future purposes, I shall assume that the Brady rule applies without the need for a request for the exposure abiding the facts.

That brings me to the second requirement of the Brady case and that is that the withheld evidence be material.

And Brady didn't explain the meaning of the test of materiality.

The Maryland Court of Appeals didn't explain it either but if you analyze what they did, it is perfectly clear that they held that evidence is immaterial unless it were so strong that as to be full through.

If there was any possibility that it might not have affected the result then it wasn't material.

Now, it seems to us that the analogy here should be to the test of materiality which this Court develop in cases like the Napue case where the fault was the introduction of testimony known to the prosecution to be incorrect and the failure of the prosecution to correct the incorrect testimony.

And the tests stated by this Court in the Napue case was that the evidence, the wrongful -- the admitted evidence, was material and tainted the conviction if the false testimony, “May have had an effect on the outcome of the trial” and the Court has applied the same tests to cases where evidence where illegally obtained evidence and violation of the Fourth Amendment was admitted.

So in they against Connecticut, the test was whether the admission of the evidence -- there was a reasonable possibility that the admission of the evidence might have affected the result.

Now, this kind of case is a corollary case to the use of false evidence and it seems to us clear that the same test of materiality should apply namely if the evidence if the evidence have been revealed, was there a reasonable possibility that it would have affected the result.

In our view, this test of materiality was more than that.

And now I come to our description of the evidence that we claim was suppressed and which was brought out at the post-conviction proceeding.

The evidence falls under two categories.

The first category is evidence of the events between the episode the alleged rape of July 20, 1961 and the trial in December 1961.

The evidence shows this, on the 9th of August 26, 1961, one month after the alleged rape, three months before the trial, Joyce went to a party, and at the party she had intercourse with two men; one in the bathroom, one in the yard.

Early the next morning, she took an overdose of drugs and a suicide attempt and she was taken to a hospital and was kept in the hospital in the psychiatric ward of the hospital for 10 days with admitting diagnosis of a psychopathic personality.

While she was in the psychopathic ward of the hospital she was visited by a boyfriend of hers named Busty.

Busty asked her why did she attempt suicide.

She told Busty that she had been raped the night before the suicide attempt by these two men that whom she had had intercourse at the park, and she gave him the names of the men and all the detail.

Busty reported this rather officiously because she didn't ask him though.

Busty reported this to her parents.

Her mother first called sergeant way up in Montgomery County police who was in-charged of the investigation resulting in the conviction of petitioners.

And she told Sergeant Whalen that Joyce had been raped again.

So Whalen asked her where did this take place and she said in Prince George's County.

So Whalen said well don't bother me, tell it to the Prince George's County police and presumably he went back to sleep.

So she or her husband reported it to the Prince George's County police.

Detective Sergeant Wheeler of the Prince George's County Police came to the hospital to interview Joyce in connection with this complaint.

When he interviewed her, the first thing she told them was that these two men at the party had had relations with her against her will.

But he then questioned her further.

In the course of the questioning it became perfectly apparent that she had not been raped, that she engaged in voluntary intercourse, she had put up no resistance and that the most she had was an unexpressed mental reservation.

She really didn't want to engage an intercourse with these two boys at that time.

She said at that particular time because she was afraid that if all the other boys at the party got to know about it, they would all insist on having intercourse with her.

Otherwise, she said she wouldn't even have had this mental; reservation, and she also admitted that in the past with one of the two men with whom she have had intercourse at the party, she had had relation with.

They were white.

Which boy?

You mean the second rape claim?

Justice John M. Harlan: The one that were --

Mr. Joseph Forer: They were white, they were white

Justice John M. Harlan: (Inaudible)

Mr. Joseph Forer: One month after --

Justice John M. Harlan: (Inaudible)

Mr. Joseph Forer: That's right.

One month after the alleged rape by petitioners three months before the trial.

Justice Hugo L. Black: Is that the evidence that you claim states would have given it?

Mr. Joseph Forer: That's the first, this is what then the --

Justice Hugo L. Black: Do you think that would have been admissible on that trial?

Mr. Joseph Forer: Yes.

In a few -- if I may hold it until I finish my account of the evidence because I haven't concluded it I will come to that question Justice Black.

She also told Wheeler a little more than these circumstances, she also told Wheeler something about her sex history generally.

He told him that for the past two years since the time she was 14, she had had intercourse relations with so many different man and boys that she didn't know how many including many of them who were strangers.

Joseph told them that on numerous occasions she had engaged in oral settlement.

At this point Wheeler marked the case closed on count.

Now, to get to Justice Black's question, these episodes and these are episodes within the first category for purposes of the precedence and the evidentiary question.

It seems to us that this is narrative account to have four components.

First is that she made a false accusation of rape against somebody else.

Secondly that she attempted suicide and incidentally at the post-conviction proceeding and psychiatrist testified that this of the 16-year old girl was itself indicative a serious mental disturbance.

Third, she was hospitalized in the psychiatric ward and, fourth that she had a sex history indicative of nymphomania.

Now, the authorities numerous authority dealing with sex cases in various jurisdictions hold even in the abstract that any as to each one of these four components that they are admissible in evidence where there is a defense of consent because they are indicative of the mental illness of the prosecutor and because they are indicative of a well-known syndrome which involves as a characteristic element, a compulsion on the part of a young girl to contrive sex offenses by men.

Justice Potter Stewart: Is that clear on the law of Maryland?

Mr. Joseph Forer: In the law of Maryland, nothing gets clear on the evidence.

All I can say is that the majority said we will assume that this information could reasonably have been deemed admissible and useful.

The --

Justice Potter Stewart: I'm not talking about this case, do you understand?

I'm talking about the case law of Maryland.

Mr. Joseph Forer: The case law of Maryland isn't clear one way or the other.

Just not clear one way or the other.

However, this -- on the one hand the majority -- at least the Court that sets the law in Maryland.

Majority said we're willing to assume it would have been admissible.

The two judges in the minority said we think that it was reasonably admissible or a reasonable possibility of admissibility and pointed out that when you come to the close question with evidence, you can't tell whether it's admissible until you see how it's produced when she seems to me make the most sense.

The grounds on which is often a particular way the counsel works within and so forth.

And the trial judge in the post-conviction proceeding also said that he thought that there was a reasonable possibility of admissibility and he also said, he doesn't have to find the least admissible in case there were a trial.

In another ground of materiality here, is that with this kind of information, it seems to us that defense could have applied for and would have received a pretrial mental examination of the prosecutor.

And considering the evidence which we do not claim to be suppressed but the newly discovered evidence in addition to what I have described, there is certainly a very strong possibility that this mental examination would have been adverse to the girl's credibility.

If I may anticipate the next question, there is no law in Maryland one way or the other as to whether or not pretrial mental examinations can be ordered in such a situation.

Now, aside from the fact--

Justice Potter Stewart: Is there any law anywhere else, you're speaking anonymously.

Mr. Joseph Forer: There is law elsewhere and decided --

Justice Potter Stewart: Not a party to litigation.

Mr. Joseph Forer: What?

Justice Potter Stewart: The -- this young woman wasn't a party to the litigation.

Mr. Joseph Forer: There is law--

Justice Potter Stewart: -- elsewhere that she was going to have a pretrial mental investigation of a third party witness?

Mr. Joseph Forer: If you will look at page 31 of my -- our brief Justice Stewart you will see that we cite some law on that subject.

We cited the New Jersey case, California case and the South Dakota case.

And we also explained what sanctions are available to the Court if the prosecutor refuses to take the -- such a mental examination.

This is the new law and as I say there is no precedent in one way or the other in New Jersey.

But leaving aside, the question of whether in Maryland --

Chief Justice Earl Warren: In Maryland.

Mr. Joseph Forer: In Maryland.

Justice Hugo L. Black: Is it your argument that the state has abused this evidence in putting --

Mr. Joseph Forer: The states should have informed the defense of it.

And then by the state --

Justice Hugo L. Black: They should the defendant that they knew some escapades of a witness that they might use in a case.

Mr. Joseph Forer: That's right.

Not only an escapade that she had made a false accusation of rape against somebody else when part of their defense was that she was making a false accusation of rape against them.

And when --

Justice Byron R. White: [Inaudible]

Mr. Joseph Forer: No, as I narrated, she told her boyfriend Busty who told her family, who told the police, but --

Justice Byron R. White: [Inaudible]

Mr. Joseph Forer: No, when Sergeant Wheeler talked to her, the first thing that she said to Wheeler, the very first thing amounted to an accusation of rape because she said to Wheeler, these two men had intercourse with me against my will.

It was then when Wheeler cross-examined her that these facts came out.

She never denied that she'd been raped, she just gave them the facts which negatives is rape.

Justice Byron R. White: [Inaudible]

Mr. Joseph Forer: That's right, that's right, then no wonder.

Now, leaving aside the abstract question that this kind of evidence in segments of it has been held admissible in various jurisdiction.

This evidence has peculiar materiality and peculiar relevancy here so that in my view it could have been admitted because of the particular facts of the case regardless of some other technical obstacle.

Justice Hugo L. Black: Is it your argument that it was a violation of due -- it would be a violation of due process for Maryland to define and let such evidence from the interview?

Mr. Joseph Forer: I think it well may have been because if they want --

Justice Hugo L. Black: It would be up to us to determine whether Maryland should made evidence to that time they admitted the case.

Mr. Joseph Forer: Actually Justice Black, we don't think you have to go that far.

But to answer your hypothetical question because I don't think that's involved here -- now it is --because if the evidence would have been admissible you don't have to decide whether it would be a violation of due process if it's not admissible.

Justice Hugo L. Black: Yes, but if -- are we going to decide it on the basis of what is the state law is or what the due process law is?

Mr. Joseph Forer: No, on the basis of state law.

Now, if I will go further, however, if all these evidence were inadmissible in state law in my opinion, that would be just as much a violation of due process as it is to convict the person on the state law without any evidence of guilt.

Justice William J. Brennan: Yes, but the only due process argument you're making here that there was a violation of due process for the state authority is not to inform the defendant.

Mr. Joseph Forer: That's right.

Justice William J. Brennan: That they have it.

Mr. Joseph Forer: That's right.

Justice William J. Brennan: That's as far as you go from (Voice Overlap)

Mr. Joseph Forer: As far as I go.

If I may say--

Justice Hugo L. Black: To go further.

You have to go further, do you not?

It wouldn't be a violation of due process but it's also is not to give them information would it of that evidence which would not be admissible in the trial?

Mr. Joseph Forer: Well, that's not correct either, it might be because if you -- first, you never can tell really whether the evidence is admissible or not, but secondly, this may be evidence which will lead them to evidence which they can produce in an admissible form.

So the question really isn't in the --

Justice Hugo L. Black: Well the prosecuting attorney has got to give all -- got to cite all of the evidence that he thinks might lead them -- let them be lead to obtain some other evidence to be admissible.

Mr. Joseph Forer: Now, the prosecuting attorney has to make the judgment, whether evidence that he has is reasonably exculpatory and material and is the kind of evidence that the other side might not have.

And the Court of Maryland, the Court of Appeals of Maryland held this state law as well as federal law held that where there is a possibility, a reasonable possibility of materiality and admissibility, the prosecutor has a duty to inform either the defense or the judge or the jury of this exculpatory evidence.

Justice Hugo L. Black: Maryland is a matter of state law or as a matter of federal law?

Mr. Joseph Forer: They just said that's the law.

They -- now, whether they were interpreting state law or federal law and -- but I will say that this principle has been announced not only by the state of Maryland but by federal circuits including the District of Columbia Circuit, the Griffin case which was cited by the Maryland Court of Appeals.

That's certainly a law in Maryland.

But the peculiar relevancy of this testimony is that it would have made plausible the testimony of the petitioners that was otherwise unbelievable.

It would have made plausible that that testimony which required the jury to believe that she was the kind of girl that would have acted and spoken that way that in other words, she was not just an ordinary child, but she was the kind of child that Lillian Helman wrote her famous play about.

Justice William J. Brennan: Mr. Forer, I beg your pardon, does the record show whether the prosecuting attorney or anybody engaged in the trial that actual knowledge --

Mr. Joseph Forer: I'm coming to that as my next subject and if you will just defer it, because I would now like to go into my second category.

Justice William J. Brennan: But before, I would just like to be sure Mr. Forer you're not arguing here constitutionally there was a broad discovery obligation.

Mr. Joseph Forer: No.

Justice William J. Brennan: On a private party.

I gather your argument is on the basis of the four elements.

The real problem here was (Inaudible) raped her.

Mr. Joseph Forer: That's right.

Justice William J. Brennan: And your point is that at least when they, there is in their possession knowledge which may not be in the possession of the defense.

Mr. Joseph Forer: And which was not.

Justice William J. Brennan: Which wasn't which bears upon the credibility of her story that what?

They should have notified the defense that they have it.

Mr. Joseph Forer: That's right.

Justice William J. Brennan: And that due process required it.

Mr. Joseph Forer: That's right.

Now, furthermore --

Justice Hugo L. Black: Who do you mean by they?

Mr. Joseph Forer: What?

Justice Hugo L. Black: Who do you mean by they?

Mr. Joseph Forer: The prosecution, I meant to say that to Justice Brennan.

Justice Hugo L. Black: Now, the prosecution is a big turret.

Mr. Joseph Forer: In this case, the prosecution with the information, the knowledge was -- and the knowledge of the state's attorney the chief --

Justice Hugo L. Black: Knowledge of the state's attorney?

Mr. Joseph Forer: It was the knowledge of the state's attorney who was the chief prosecutor would personally drive the case.

He had the same knowledge incidentally that the -- that Lieutenant Whalen who was the chief detective in-charged of the investigation then.

So in this case, I don't think we have any problem as to who is to be prosecuted.

Justice William J. Brennan: What did he know if anything of the conversation between Joyce and Sergeant Wheeler?

Mr. Joseph Forer: I -- if he were just told that, I will come to the knowledge aspect in just a moment but I want to correct one -- I want to follow up one other thing.

This information wasn't admissible merely to impeach Joyce's credibility.

In my opinion, it was also preoperative a substantive evidence of their testimony that she had said to them in the woods, “I have 16 or 17 other boys this week and two or three more won't make any difference.”

Does this testimony A, makes it entirely plausible that she did have 16 or 17 other boys that week and B that whether or not she had it, she would go around and tell it to relative strangers.

So it would have corroborated that.

Now, let me come to the second category then I'll get to the question of knowledge but I would like to clean out what the evidence that we're complaining about the -- you recall that I said that the petitioners testified that Joyce have told them variously that she was on probation or in trouble and that if she were caught in the woods because of this thing on probation or in trouble she would have to claim that she was raped.

Now, there was no corroboration of this testimony and the petitioner's testimony to this effect was ridiculed by the state and Joyce denied that she was on probation.

Now, as the post-conviction proceeding showed at the time of this episode in the woods that was pending against Joyce a petition in the Juvenile Court of Prince George's County alleging that she was beyond parental console and a recommendation of a court case worker that she be put on probation.

So Joyce was A, in trouble and B, although she was not on probation she was in the status close to it that a lay person might have described as probation.

And furthermore, as the evidence of the post-conviction proceeding showed, in fact she did call it probation because on the Saturday before the Thursday of the alleged rape by the petitioners, she went out with a boyfriend of hers Pat Stevens and she told Pat Stevens let's stay in Laurel.

Let's not go down to Hyattsville because I'm on probation.

And in fact, she wasn't on probation.

She was in this near probation status.

This evidence, the materiality of it can possibly be controverted because it would have corroborated critical testimony of the petitioners which I believe obviously negatives rape and it would have removed a false impression created before the jury by the cross-examination of the defendants and by the state's witness' denial of being on probation.

Justice William J. Brennan: And I gather the pendency of that frugal purpose was not known by the defense --

Mr. Joseph Forer: Was not known, he tried to find out what there was against her in the Juvenile Court of Prince George's County and Montgomery's County because he knew the boy's story and he was refused to access for the record.

Justice William J. Brennan: Did the state's attorney know that fact too?

Mr. Joseph Forer: He testified that he did not.

Now, let me come to the question of the knowledge.

Chief Justice Earl Warren: May I ask you one more question, is there any in that original petition for make a reward of their sex background to that?

Mr. Joseph Forer: I don't know.

Chief Justice Earl Warren: Being beyond parental control?

Mr. Joseph Forer: I just don't know.

I mean I don't know what was I the petitioner's or if the petitioner did that.

Those petitions are usually stereotype mimeographed sheets.

Justice Lewis F. Powell: So whatever it is, it was not produced --

Mr. Joseph Forer: What?

Justice Lewis F. Powell: -- it was not produced by the post conviction proceedings?

Mr. Joseph Forer: No, they -- the judge -- we have subpoenaed the records and the judge wouldn't let us -- Judge Moorman wouldn't let us put it in evidence and find that we got it in stipulation.

Justice Lewis F. Powell: You mean this being juvenile court proceedings, they were not released, filed?

Mr. Joseph Forer: They could have been produced by -- if the court allowed it we had got a written permission --

Justice Lewis F. Powell: Which court?

The juvenile court or the --?

Mr. Joseph Forer: Both courts.

We have got a written permission from the juvenile court of Prince George's County and a ruling which I cannot to this day understand and which I cannot explain the basis for, Judge Moorman refused to introduce an evidence so then we finally managed to get in the key point by means of stipulation.

Let me now come to the knowledge of the prosecution.

The Court of Appeals found that the prosecution consisted of the state's attorney and the investigating police.

For present purposes, that means party who was the state's attorney and who tried the case and Lieutenant Whalen who was the detective in-charge of the investigation.

Justice Potter Stewart: The ruling of the Court will include the -- all of the police in that county and all of the staff of the prosecutor.

Mr. Joseph Forer: That's right, but the only knowledge that -- but in fact all of the knowledge--

Justice Potter Stewart: Was in these two individuals.

Mr. Joseph Forer: Was in this two.

Justice Potter Stewart: In this case.

Mr. Joseph Forer: And the only way we established knowledge was from their own lips.

Now, Kardy the state's attorney and Whalen the head of the detectives knew the evidence chose this and they were found by the Court of Appeals and by the trial court to know about the attempted suicide and about the second rape accusation but they knew them only in a general way and they didn't know the details and all the subsidiary evidence for the simple reason that they were not interested and made no effort to investigate.

Kardy for example testified that he knew that he know that Joyce had taken this overdose of drugs and he assumed that it was intentional and motivated.

He happened to have their motive but he assumed that it was a suicide attempt.

Chief Justice Earl Warren: Kardy was who?

Mr. Joseph Forer: What?

Chief Justice Earl Warren: Kardy was who?

Mr. Joseph Forer: The state's attorney.

He also knew that Joyce have been involved in an allegation of another rape and that nothing had come of this allegation, not even the produce formal charges.

But he hadn't bothered to find out and didn't know that the allegation was made by Joyce because he didn't bother to find out.

And the same thing was true of Lieutenant Whalen, the detective lieutenant.

Although after all, although he didn't know immediately that Joyce had instigated the charge, he got the information of this second alleged rape from the girl's mother.

And that by itself should indicate, it seems to me a definite possibility that the complaint originated with the girl.

Now --

Justice Potter Stewart: That was a telephone call from the girl's mother?

Mr. Joseph Forer: Yeah, he got a telephone call from the girl's mother and --

Justice Potter Stewart: And then learned that it happened in a different county and said that --?

Mr. Joseph Forer: Yeah, that's right.

And he said, don't bother me with that.

Now, in short, they did know, they know she had taken this overdose, they assume that the suicide, they knew that she was involved in the second rape accusation.

Now if you limit, if you limit the state's knowledge or the responsibility of the state merely to what they knew they actually knew without more, we say that under the authorities and under any kind of reason, that was material in and of itself.

They knew there was a suicide attempt or they knew enough about it.

They knew there was a second rape accusation which apparently was false and they had very good reason to believe that Joyce have instigated it.

And that would be enough.

But I want to go further, there's another grounds for materiality here.

Not only would this evidence have been enough in and out itself.

But if you assume as the Court of Appeals of Maryland did that there is a duty to divulge anything that is possibly material and that this duty was breached here.

Once you have a breach of a duty to divulge, then when you get to the question of whether the breach of the duty was prejudicial, you're past the question of breach which means whether or not the evidence was material.

Then you should look, not only at the value of the precise things known to the prosecution and not divulge but also at what the defense was in all likelihood and in years surely would have discovered if the duty had not been breached.

If Kardy and Whalen had told the defense what they knew, any diligent defense would have checked with the police department of Prince George's County and would have gotten the whole story that Lieutenant Wheeler had knew and would have had everything else.

And this was a point made by the dissenting opinion.

The dissenting opinion said, in order to determine materiality, first, what they actually knew was itself material, but secondly that having breached the duty of divulgence of disposure that this information was material because of -- it would have been a great value for the defense by further investigation.

Now, we have an alternative theory for -- on the question of knowledge, this is an alternative theory with regard to category one of the suppressed evidence that is the history of the false rape accusation and the attempted suicide.

But it is the only theory that we have with regard to the nondisclosure of the fact that she was in this near probation status.

We say that under certain circumstances for the purposes of the suppression doctrine, it is right to charge the prosecution, not only with what they actually knew but also with constructive knowledge of what they should have known if they had conducted an unbiased investigation and if they had shown the most rudimentary diligence in the performance of the obligation that they owe to the state as public officials and to all accused to investigate allegations of crime with some kind of elementary diligence.

And we say here that this duty to the public was breached.

Justice Hugo L. Black: You mean that it's the duty of the prosecuting office to investigate crime, find out what they might possibly find out and that failing to investigate crime they can be held?

Mr. Joseph Forer: No, I --

Justice Hugo L. Black: It can be held that they are giving the information, can be held if they denied due process?

Mr. Joseph Forer: No, I think that overstates my position Justice Black.

I say, well first of all, the prosecution here did investigate.

In the course of the investigation, they came upon evidence which was indicative of innocence.

Instead of performing the duty to conduct an unbiased investigation, they turned their back on the others.

They deliberately closed their eyes --

Justice Hugo L. Black: Is their duty to these defendants to conduct an unbiased investigation?

Mr. Joseph Forer: Are they certainly do.

They owed a duty to the defendants and they owed a duty to the public.

And at minimum that duty is not to deliberately close their eyes to exculpatory or possibly exculpatory evidence in order that they may then have an excuse not to turn the evidence over to the defense.

Now, all I can say Justice Black is that there is a minimum of authority on this point.

This Court hasn't spoken on that point.

There are a few lower court cases which do hex the prosecution with constructive knowledge because it was information which they should have known.

Now, let me rehearse the circumstances here which called upon them to make some kind of an investigation.

First, the medical testimony, it was indicative of intercourse but not of forcible penetration.

You have a 16-year old girl alone in the woods late at night with a 21-year old man, originally with three men.

She ran a great distance of 30 feet to escape being ravished.

She was first to offer sex to John Giles.

She didn't resist, she didn't expostulate, it was capital offense, the defense was indigent, the information was -- the indicated information to check was readily available to the prosecution and the police.

Justice Hugo L. Black: Did you say out in the woods?

Mr. Joseph Forer: What?

Justice Hugo L. Black: Out in the woods?

Mr. Joseph Forer: I beg your pardon?

Justice Hugo L. Black: I say did you say out in the woods?

The girl was out in the woods?

Mr. Joseph Forer: Yes, there's a little dirt path that was right down to the river --

Justice Hugo L. Black: And it's about12 o'clock?

Mr. Joseph Forer: It was about midnight.

Justice Hugo L. Black: What do you say they were doing there?

Mr. Joseph Forer: Who were doing?

The petitioners?

Justice Hugo L. Black: The defendant.

Mr. Joseph Forer: They had been fishing and swimming in the river.

As they came out of the river they had to go past the car.

Justice Potter Stewart: The evidence say they had also been drinking weren't they?

Mr. Joseph Forer: Drinking, they had some beer.

Yeah well, I think they had had one 6 --pack of beer for about four people.

Chief Justice Earl Warren: Mr. Forer, did I understand you did say that at the trial, she testified that she was the first one to speak of sex to the boys and then she offered to have intercourse with one of them?

Mr. Joseph Forer: She testified that when she and John Giles were alone in the wood, that she said to him that she would like to have them to have intercourse with her if he helped her get away.

This was her own testimony and since she never -- what?

Justice Hugo L. Black: Hope to get away with?

Hope they'd let her alone.

Mr. Joseph Forer: That's what she said.

But, may I point out that since she never told John Giles that she had a mental reservation, or that she had changed her mind.

The alleged rape by John Giles comes down to a breach of contract for lack of consideration that he didn't have to get away.

Justice Hugo L. Black: You don't claim do you that the rape --?

Mr. Joseph Forer: What?

Justice Hugo L. Black: You don't claim do you that even the rape was less reprehensible if it was a rape because of these facts and circumstances which you portrayed to us?

Mr. Joseph Forer: No, it wasn't a rape at all.

Justice Hugo L. Black: Well, if it was a rape, was it made any the lesser rape because of the fact that she had had intercourse with other men?

Mr. Joseph Forer: No, but of course under the law of Maryland, the unchastity of a woman who has been raped is admissible at the conviction for the purpose of determining sentence but we're not going into that here.

But if she was raped, she was raped, our point is that she wasn't raped and that the state suppressed evidence which to any reasonable mind would have corroborated and made plausible the testimony of these two young men who otherwise had nowhere else to turn.

Justice Hugo L. Black: Did you have any evidence or did they have any evidence that she have ever had the intercourse?

Mr. Joseph Forer: They?

Justice Hugo L. Black: Than the current person before?

Mr. Joseph Forer: No.

No.

Now, let me stay for a minute on the policy consideration.

It said well, this is the past of nondisclosure.

The prosecution doesn't have to be the defense counsel.

The prosecution can't be expected to disclose information available to the defendant.

Now, the information here was not available for the defense.

And the state is in a position where it must disclose.

It not only has superior resources it has an obligation to see that justice is done, as all prosecutors always say, make luncheon speeches but do not necessarily carry out.

And the state's nondisclosure of exculpatory evidence can't be excused even if there is as there was not here negligence on the part of the defense.

Supposed both were at fault, it's a different kind of fault, where the fault is refusal to -- is a concealment, a withholding of the information that you have, on one side the prosecution side and the fault on the defense side is a failure to acquire the information which it could have gotten if it had tried.

Where the prosecution fails to disclose information that it has the best you can say for it is that it is deliberately exploiting a mistake or negligence by the defense counsel in order to try to get his client sent to the chair or convicted for a long time.

And even if the prosecution isn't being malicious about it then at least they had the last clear chance and tort terms and they didn't take advantage of it nor is this passive nondisclosure.

The vice is not the failure to disclose.

The vice is prosecuting without failing to disclose.

And there was nothing passive about the prosecution in this case.

And this nondisclosure was no more a passive thing than a stationary part of a moving machine.

I would like now to turn to my equal protection argument.

Justice Abe Fortas: Mr. Forer, suppose this is not a rape case, but suppose it were a case of grand larceny and a witness testified against the defendant.

And let's suppose the state knew that this witness had some sort of a record, or had been arrest let's say without being convicted.

And this witness had himself arrested.

Is it your feeling that the state is required to disclose information of that character?

Mr. Joseph Forer: No, I don't -- obviously the state isn't required to disclose a trivial matter.

It's a matter of degree.

I haven't said a stage of disclose everything.

Now maybe in time there will adopted the full discovery and rules that Justice Brennan advocated in the speech he made in the Washington University.

That's different, I'm not talking about that.

I'm talking about cases where the prosecution has breached its duty because it has suppressed something in significant.

I want to talk --

Justice Abe Fortas: So it is a matter of degree?

Mr. Joseph Forer: Of course it is.

Justice Abe Fortas: No.

Mr. Joseph Forer: Actually listed in the word material.

Justice Abe Fortas: Right.

Now, do you make a distinction between the two incidents that are here involved and into --

Mr. Joseph Forer: You mean the two categories?(Voice Overlap)

Justice Abe Fortas: -- degree that is to say, what are the given on the court proceeding, I think that it was free the alleged rape incident that was the point of the alleged rape incident.

Mr. Joseph Forer: The point is --

Justice Abe Fortas: The other incident was after the alleged rape.

Mr. Joseph Forer: No, at the time of the alleged rape, at the time when she was supposed to be saying that she was on probation, she was at that very moment in this status of near probation.

Justice Abe Fortas: I understand that, I say do you make a distinction between the state's duty to disclose events or conditions or circumstances that existed at the time of the alleged crime.

On the one hand and the state's duty on the other hand to disclose circumstances which arose subsequent to and might arguably or conceivably shed some light on the prosecuting witnesses and mental condition.

Mr. Joseph Forer: I don't see how you can draw any winched phonological line, the only question -- the only role that chronology might have is the effect the materiality, but once you grant the information of material, then it should be disclosed regardless of the (Voice Overlap)

Justice Abe Fortas: Material, of course there was material to what I suppose.

Mr. Joseph Forer: But the material and the (Voice Overlap)

Justice Abe Fortas: Because here you're not -- this is not a -- what you're saying is this -- the information in your view of the case is material to the credibility of the witnesses, isn't that right?

Mr. Joseph Forer: It was the material for the credibility of the witnesses but it was also a material as affirmative corroboration of the defendant's story.

That's particularly true of the probation evidence.

Yes Justice Brennan.

Justice William J. Brennan: I gather what you're saying is that the prosecution knows at the time of trial when it's presenting its case and anticipate the defense of the defense opinion.

Mr. Joseph Forer: I'm sorry, I didn't hear that.

Justice William J. Brennan: You're talking about the time of the trial rather than the time of the actual alleged rape.

Mr. Joseph Forer: Well, in most instances, that's right but I mean if there's going to be a disclosure it should be made before the trial is over.

Now, there may be instances where the prosecution is justified in delaying disclosure.

But I just don't see how it's possible to say that a prosecutor can actively seek to send people to the chair as we did here.

In the mean time, keeping in his back pocket all the way to the very end information which was critical and which might have shown their innocence.

Justice Potter Stewart: Well now, the prosecutor and the police of this county for this prosecution and trials in place did not know of this so called near probationary status, did they?

Mr. Joseph Forer: Lieutenant Whalen testified that he did not know.

We thought he did.

Justice Potter Stewart: But the evidence in this post-conviction (Voice Overlap)

Mr. Joseph Forer: That's right, but he should have known.

Justice Potter Stewart: Well, that's your argument.

Mr. Joseph Forer: And believe me, if the social status of these people have been different he would have known rather than --

Chief Justice Earl Warren: Mr. Forer before you get on to your other point, do you said that the prosecutor ridiculed the idea of her being on probation, would you elaborate on that a little and how it came up and what he said?

Mr. Joseph Forer: For instance, he said to John Giles, remember this was after Joyce had already denied she was on probation.

And John Giles himself was on probation.

So he said, so you went in the woods and you were on probation and she was on probation now what did you two probationers talked about?

And then he kept talking about probation, probation, probation, rubbing into the jury the fact that the evidence was that she wasn't on probation.

It's very much like that Alcorta against Texas case in which the state, they used evidence which was literally true by which because it failed of being supplemented by additional evidence created a false impression and that's what happened here.

Justice Hugo L. Black: Did the record show what Giles is on probation for?

Mr. Joseph Forer: I guess if you read the whole record, you will that somewhere there's a reference to the fact that he had a prior criminal conviction for housebreaking.

And presumably that was his only criminal conviction presumably he was on probation with that.(Voice Overlap).

Justice Hugo L. Black: Mr. Forer, I can't just follow that of course a step further --

Mr. Joseph Forer: No.

Chief Justice Earl Warren: Did the prosecutor indicate in any way the square was not on probation?

Mr. Joseph Forer: Oh yes sir.

Chief Justice Earl Warren: Well, what you told has been saying that.

Mr. Joseph Forer: Oh yes.

Chief Justice Earl Warren: What did he say?

Mr. Joseph Forer: He asked the girl, Joyce, on redirect examination.

You see the way it came up Joyce of course testified before the defendant.

The defense counsel in cross-examining her, said to her, “Didn't you say to them that you were on probation and would have to claim rape?”

And she said, “No, I didn't say that.”

Then on redirect examination, the prosecutor said to her, “Were you on probation at that time?”

And she said, “No.”

Then when the petitioners testified that she had told them she was on probation, then on cross-examination of the petitioners and we give the references in our brief, he ridiculed that testimony.

Whatever term I have left, I will reserve for rebuttal.

Justice Hugo L. Black: What did the stipulation about the --

Mr. Joseph Forer: I beg your pardon?

Justice Hugo L. Black: What's the stipulation of that probation attribution?

Mr. Joseph Forer: The stipulation was that at the time of the episode in the woods that was pending in the juvenile court of Prince George's County a petition for her commitment and in connection with that petition that was pending a recommendation by the court's case worker that Joyce be put on probation.

Justice Lewis F. Powell: That was true.

That was true, wasn't it?

Mr. Joseph Forer: What?

Justice Lewis F. Powell: I said that's all that happened in that particular case?

Mr. Joseph Forer: Oh yeah.

Justice Lewis F. Powell: That probation thing?

Mr. Joseph Forer: Yeah, but there was a reason for that.

What happened was that the Montgomery County police took Joyce and had her committed to the -- to an institution --had her committed to a school the Montrose School during prior to and during the trial.

By the Montgomery County Juvenile Court and the Montgomery County Juvenile Court then later after accepting jurisdiction bring her in this institution temporarily until after she had testified then discharged her on the grounds that they didn't have territorial jurisdiction.

Justice William J. Brennan: What was the basis of our commitment?

Mr. Joseph Forer: Basis of what?

Justice William J. Brennan: Of our commitment by Montgomery County.

Mr. Joseph Forer: The basis of her commitment was a petition brought by or instigated by Lieutenant Whalen in which -- would you give me a moment -- if you will look on page 275 of the record, there is the proceeding in the Montgomery County Juvenile Court now if you look at the case hearing --

Justice William J. Brennan: This apparently is September 5, is that right?

Mr. Joseph Forer: Yes, this hearing was held the same day she got out of the hospital August 5.

Justice William J. Brennan: September.

Mr. Joseph Forer: September 5, same day she got out of the hospital after the suicide attempt.

Justice Hugo L. Black: Before the trial.

Mr. Joseph Forer: What?

Justice Hugo L. Black: Before the trial.

Mr. Joseph Forer: Oh yes, and the testimony of the post-conviction proceeding of Lieutenant Whalen was that he would arrange this hearing in Montgomery County.

If you'll look at the very top it says Joyce Roberts and it gives her address at Hyattsville, Maryland which everybody knows is in Prince George's County.

If you look at -- on page 277 you'll see that on April 30th, the case was closed on the grounds that she is no longer residing within the jurisdiction of the court although everybody knew that she was not residing within the jurisdiction of the court to begin with.

And what happened here was that while she was -- before this case was dismissed in Prince George's County the charge against her was dismissed on the ground that jurisdiction had been taken by Montgomery County.

So, that's why nothing ever came of the case in Prince George's County.

Justice Hugo L. Black: Is it your position if she was or was not on probation?

Mr. Joseph Forer: She was not actually on probation, she was in trouble which is one of the pieces of evidence and she was in a status where she could describe this probation and did.

Justice Hugo L. Black: Could have been put on probation, might have been but she wasn't.

Mr. Joseph Forer: She wasn't but she referred to it is probation and the important thing was what she was saying when she said that she was on probation and she certainly was in trouble.

Thank you.

Chief Justice Earl Warren: We give your last five minutes questioning so you may have five minutes for rebuttal.

Mr. Joseph Forer: Thank you very much.

Chief Justice Warren E. Burger: Mr. Needle?

Argument of Donald Needle

Mr. Donald Needle: Mr. Chief Justice and may it please the Court.

Because all of the importance really of the facts of this case I think because of the gloss which the petitioner's counsel has perhaps put on those facts that should be reviewed.

We have to keep in mind that what we're talking about number one is information known to persons in two counties of the State of Maryland we're talking about information number one known by the state's attorney Leonard Kardy of Montgomery County.

We're talking about information known by Lieutenant Whalen the chief investigator of this case who was also in Montgomery County.

But the most important information known is the information known in this case by Sergeant Wheeler of the Prince George's County police.

The other most important information in this case also Prince George's County information is located number one, in the Prince George's County hospital record; and number two in a juvenile court record of Prince George's County.

Now, the basis of our brief really is that this case has got to analyzed in proper perspective.

The first thing that has to be ascertained is what did the prosecution includes know, or what is the prosecution charge for it.

Who is the prosecution?

Now the Court of Appeals of Maryland found even a more broad rule that has been announced in the past, the Court of Appeals said that the prosecution would consist in this case of Kardy the state's attorney and his assistance and the police of Montgomery County.

Now, notice that is the police of Montgomery County.

We argue that information known not only by Kardy in this case by perhaps known by some other officer in Montgomery County even under the Court of Appeals opinion could be said by the defense analogy in this case to be imputable to the prosecution.

Now, we maintain that our own Court of Appeals was even too broad that what should be known by the prosecution should be the knowledge of the state's attorney and additionally the knowledge of the investigating officers.

Now, we maintain that if the rule is any different, what -- where are we going and what does it mean?

Now, Montgomery County has a population of approximately 500,000 people the same with the other adjourning county.

Or let's look at Jersey City, New Jersey, and let's look at New York City.

Is every police officer of either of these adjourning municipalities jurisdiction to know number one, who are to be the state witnesses?

Who has made a complaint of crime and is to testify in the case?

Are all state or municipal police officers to know that fact much less whether or not any particular piece of information that they might have would be useful if they don't know the facts of the case?

Much less, what, excuse me -- much less whether a particular piece of information that they might have about a witness what if you tell what it would be.

So therefore, we claim that the only legitimate rule which can be passed, the only practical test of prosecution knowledge can be that of actual knowledge of the prosecutor and his assistants and his agents.

And secondly, of those officers that investigated the case.

Now --

Justice Abe Fortas: Can you tell us what you mean by the prosecutor?

Mr. Donald Needle: By the prosecutor sir I mean in this instance, the prosecutor of Montgomery County, the jurisdiction of the case.

Justice Abe Fortas: You mean --

Mr. Donald Needle: He and his agents or assistants plus Montgomery County police report.

Justice Abe Fortas: Well, let's suppose that the top state's attorney to tell whatever it is and Montgomery County -- suppose the state's attorney for Montgomery County I don't know what it's called, will include him and then would you include the file staff all of the lawyers on the file staff along with the lawyers who investigate it.

Mr. Donald Needle: Yes sir.

Justice Abe Fortas: But you would include the head of the -- would you include the head of the office whether or not he was engaged on the particular case that's when I'm really asking (Voice Overlap).

Mr. Donald Needle: Well, yes sir.

Of course the question is moot because his assistant is the prosecutor of a given case.

So the question of who is in compass within the term the prosecution I say would be the state's attorney and all of his assistants.

Justice Abe Fortas: Whether or not the state's attorney was actually engaged to --

Mr. Donald Needle: Yes sir I would say too.

Justice Abe Fortas: But so, you had made a distinction between that and the police.

Mr. Donald Needle: Well --

Justice Abe Fortas: In other words, so far as the police I'm really just trying --

Mr. Donald Needle: I think --

Justice Abe Fortas: I'm trying to get exact what you are pointing and I assume we're going to talk about -- I understand what you said, you would place, you would impute our views as a practical knowledge of dispute.

Whatever is known by the state's attorney, the attorney for the county isn't it?

Mr. Donald Needle: Yes sir.

Justice Abe Fortas: And the trial staff of the lawyers and the investigating staff, isn't that right?

Mr. Donald Needle: Correct.

Justice Abe Fortas: But, if I correctly understood you so far as the police are concerned, we would include only the police who were actively engaged in that particular investigation.

Mr. Donald Needle: No sir.

We're splitting here really talking about --

Justice Abe Fortas: Or maybe I adhere to you but -- (Voice Overlap).

Mr. Donald Needle: If the state's attorney has not in fact prosecuted the case at trial, then he of course would never be charged with suppressing evidence.

It would be the person that prosecuted the case that would be charge would suppress it.

Justice Abe Fortas: Now, I want to know whose knowledge we're talking about not who has charged the suppression.

The United States attorney has knowledge about a prosecuting witness which the attorney who is actually in charge of the specific trial of the case is not held.

Is the knowledge of the state's attorney in your view, to be chargeable to the prosecution?

Mr. Donald Needle: I would say no sir, would that interest in the case is of the prosecutor and any information that his subagents might have given him and would have aide him in the prosecution.

Justice Abe Fortas: Well I think now I'm getting to understand you.

I think now what you're saying is that you're entitled to look only to the knowledge possessed by the officials who are specifically engaged in the trial and investigation of the case excluding those officials who may have a nominal official responsibility.

Mr. Donald Needle: Yes sir.

Justice Abe Fortas: Have I got your position (Voice Overlap)?

Mr. Donald Needle: Yes sir.

Justice Potter Stewart: That's a narrower view than that laid down by the majority in your Court of Appeals.

Mr. Donald Needle: Yes it is.

Justice Potter Stewart: So why do you have to ask us to narrow the --

Mr. Donald Needle: No --

Justice Potter Stewart: -- Maryland Court of Appeals view accepting that view, the breadth of that view, they're still decided in your favor, didn't they?

But why do you ask us to narrow it?

Mr. Donald Needle: We don't ask you to narrow it sir but we point out in our position to the defense claim that our Court of Appeals was in error.

That the Court of Appeals actually (Voice Overlap).

Justice Potter Stewart: It was decided in your favor but why do you have to argue with an error?

Mr. Donald Needle: Well, we're not saying it was.

We're pointing out is that the Court of Appeals' case was that we can say that the Court of Appeals was harder on the prosecution than it had to be and it gives us perhaps a greater course to complain that it would give the defense to complain because of the future possible implication.

Justice Abe Fortas: Well the only respect in which Court of Appeals is broader in the view that you think is correct is to include all of the police in Montgomery County, is that right?

Mr. Donald Needle: I think that implication can be read into the language of the Court of Appeals.

But of course --

Justice Abe Fortas: It is very important for us to know just what the Court of Appeals decided and as I understood your prior statement, the Court of Appeals said that the prosecution is chargeable with the knowledge that Mr. Kardy and his assistant and with the knowledge of all of the police in Montgomery County, is that correct?

Mr. Donald Needle: The course came out with an odd statement that the prosecution should be charged with knowledge of the state's attorney and his assistants and of the police department of that jurisdiction which has the control or the jurisdiction to hear the case.

And that in the next sentence, they said, this would mean applying to this case that our interest is in the knowledge of the state's attorney Kardy and of Lieutenant Whalen who were the only or Whalen was the only Montgomery County officer actually involved.

Now, I would like to point before getting further into the legal argument of this case that the state's evidence was not solely the evidence of Joyce Roberts against the evidence of petition.

And our case was not an uncorroborated case.

The evidence was clear.

This Joyce Roberts only 16 years old did go out to Patuxent River area at midnight.

And she went out there with three boys.

But the evidence is clear that she went there to go swimming and others were to meet them there.

That when the others didn't come within minutes, they left.

Joyce Roberts and the three boys started to go.

Their car then ran out of gas.

Two of the three boys out with Joyce Roberts in that car left to get gas, leaving Joyce Roberts and Stewart Foster in that car.

It is at this point that the Giles boys who had been swimming and fishing came upon the scene and they saw the car.

And of course this is where the evidence becomes conflicted.

The Giles boys testified in the trial that the reason that they broke into that car, the windows were locked -- the windows were closed, the doors were locked.

But the reason why they shattered those windows of that car and drags Foster out of that car and not being conscious was because they claim that Stewart Foster had a gun in that car.

Now here is Stewart Foster in that car, Joyce Roberts in that car and here are three persons that are opposed to this one other man.

Now, the complete and credulous proposition that was forwarded by the defense just didn't support the proposition.

So you have a demolished car to corroborate the state's case.

You have Stewart Foster found at two o'clock in the morning by the first police officer who arrived on the scene, you find him bloody, you find him hysteric, you find that he's taken and rushed to the hospital and given eight stitches.

You find Joyce Roberts lying on the ground, well this is the testimony of the first police officer on the scene.

Chief Justice Earl Warren: You find what lying on the ground?

Mr. Donald Needle: Joyce Roberts sir, the prosecuting witness.

The first police officer that arrived on the scene testified of what he found and described Foster's condition which I have just related and then described what he found as far as Joyce Roberts' condition.

She was found lying on the ground with her blouse on open in a semiconscious condition.

The police officer and Stewart Foster had to pick Joyce vilely up off of the ground and help her get dressed.

She was taken to the hospital.

Now, was there any evidence in the hospital record, of any force?

Well, the answer is yes.

The doctor testified for the state at the trial that there were operations of the shoulders, of the legs, and of the neck of the prosecuting witness.

They further testified that there were leaves, there were dirt and grass adherent to the back of her body.

There were numerous spermatozoa cells found in the vagina.

Now, we maintain that this is not a case of uncorroborated testimony of a prosecuting witness which has served now to place three persons in jail that the state's case was fully corroborated.

Now, the prosecutor knew this evidence ahead of time.

In addition to that, the prosecutor spoke to and interviewed Joyce Roberts.

He spoke to her before the Giles case.

He spoke to her before the Johnson case which was held there.

He had an interview with the defense counsel, Mr. Steven Prescott.

He told the defense counsel that as far as he was concerned, this girl was 100% that there was nothing as far as he knew that would cast any aspersions whatsoever on her credibility.

Now, the Court of Appeals of Maryland found that by the Giles version of this incident to their own counsel.

Their own counsel must have known, number one, that this girl was a sexually promiscuous girl and that her background was not of the finest.

There was evidence in other words which the defense counsel knew wherein the Court of Appeals said which should have been investigated.

Mr. Forer has named certain things the defense of the case was that Joyce Roberts had told these defendants that she had that same week engaged in intercourse with 16 other persons.

Now, if that was true, and if the defense counsel knew that, was there any obligation on the defense counsel to go and to find out whether or not there was any truth in this assertion. Now, what did the defense counsel do?

Justice William J. Brennan: The defense counsel was an assigned counsel?

Mr. Donald Needle: Yes sir.

Justice William J. Brennan: Did that include assignment as an investigator to help her?

Mr. Donald Needle: There was no request for investigators.

Justice William J. Brennan: Would there have been assigned if he did the test under Maryland?

Mr. Donald Needle: I don't know Your Honor of any --

Justice William J. Brennan: He was assigned (Voice Overlap).

Mr. Donald Needle: Yes sir.

And he was assigned in September and had approximately three months to prepare for this case.

Now, what was the preparation?

Number one, he claims that he went to the Montgomery County juvenile court because the petitioners had allegedly been told by Joyce Roberts that she was on probation and that if she was caught she would have to claim rape.

They went to the juvenile court because they had an indication that the juvenile court might have something. But they weren't allowed to see the juvenile court records.

Why?

Because as I have pointed out in our appendix, Maryland Rule 922 said that in order to see a record of the juvenile case, you must seek and obtain the permission of the judge.

Now, it is admitted that this was not sought.

Now, wouldn't that in and of itself the simple matter of getting a judge's signature permission to see a record, does this in itself show a lack of diligence?

Justice William J. Brennan: But was there any record in Montgomery County?

If he got the judge's permission with nothing to see about this dealing with Montgomery.

Mr. Donald Needle: If you will look at --

Justice William J. Brennan: Was there at that time new?

I thought this proceeding was pending in Prince George?

Mr. Donald Needle: No sir.

The record which is the petitioner's exhibit number three in which I had pointed out as for verification which Mr. Forer pointed related to a hearing on September the 5th in Montgomery County.

Justice William J. Brennan: In Montgomery County.

Mr. Donald Needle: Yes sir.

Now, this record would have been available had the proper procedural pattern been followed.

Justice Hugo L. Black: They're claiming that there was such a case.

Mr. Donald Needle: There is no direct testimony in the record sir, one way or the other.

Justice Lewis F. Powell: Well, you based this on the fact that his client have told him that she have said she was on probation.

Mr. Donald Needle: Yes sir.

Unknown Speaker: But when it went through Montgomery County Court they said that if there was such a case that he could not see the record without a judge?

Mr. Donald Needle: No sir.

This is not in the record.

As I said the record is not clear.

The only testimony we have on this point is that of Mr. Prescott himself.

Now, he did not deny that there was a record, or he did not state that he was told that there was no record there.

Chief Justice Earl Warren: What did he state?

Mr. Donald Needle: He stated sir that he attempted to see the record but could not and that was -- that is the only thing that we have here before us as far as testimony concerning this point.

Chief Justice Earl Warren: Did he say why he could not?

Mr. Donald Needle: No sir, he didn't go further.

Justice Hugo L. Black: Where was this testimony given?

Mr. Donald Needle: This is at the post-conviction hearing sir.

Justice Hugo L. Black: At this particular conviction that we have assigned?

Mr. Donald Needle: Yes sir, that's correct.

Justice Hugo L. Black: And who was that witness?

Mr. Donald Needle: This is Mr. Prescott of the defense counsel.

Justice William J. Brennan: Then he testified the post-conviction hearing?

Mr. Donald Needle: Yes sir.

Justice William J. Brennan: Not at the trial?

Mr. Donald Needle: Oh no, not at the --

Justice William J. Brennan: The trial was December 1961.

Mr. Donald Needle: That's correct.

Justice William J. Brennan: When was the post-conviction hearing?

Mr. Donald Needle: Post conviction hearing sir was in July of 1963.

Justice William J. Brennan: And it's then that the attorney testified.

Mr. Donald Needle: Yes sir, that's correct.

Justice Hugo L. Black: Where did the (Inaudible)?

Mr. Donald Needle: The July of 1964 sir.

Justice Hugo L. Black: Of Mr. Prescott?

Mr. Donald Needle: That's correct.

Justice Hugo L. Black: Who put him on the stand?

Mr. Donald Needle: He was put on the stand by the petitioner sir.

Justice Hugo L. Black: I don't suppose we are going in with that except what he said.

Mr. Donald Needle: That's correct.

Justice Hugo L. Black: But they told him he couldn't get the record.

Mr. Donald Needle: That is correct too.

Mr. Prescott's testimony if Your Honor please appears --

Justice William J. Brennan: Page 212, doesn't it?

“No, we attempted to obtain the record from the juvenile court here in Montgomery County and Prince George County but they were not released for us.

We were not able to see those.”

Mr. Donald Needle: That is correct, and that is the extent testimony with that particular court.

Now --

Chief Justice Earl Warren: I suppose we're entitled to infer when he said they were not released to us if they were refused.

Mr. Donald Needle: I would say that sir, but I would say that you could also infer from that could then had knowledge that there were in fact reference concerning this girl.

Now, once he knew that did he -- I'm sorry.

Justice Hugo L. Black: Did he make any effort to get the record if he tend to file this up on the merits?

Mr. Donald Needle: Well, yes, this is what I'm talking about here.

He --

Justice Hugo L. Black: I may understand the trial came after the trial judge but I went over there and couldn't get the record nor he can get a trial.

Mr. Donald Needle: No sir, does he did not, nor he did ask the state's attorney for assistance.

Now, there's evidence in the record for Mr. Kardy's testimony at the post-conviction hearing that had a request been made of him for assistance, he would have gotten the trial judge's permission on behalf of the defense counsel, so that these records would have been made available.

Now, this is the juvenile court record.

Now, Prince George's County hospital record would show that Joyce Roberts had attempted suicide.

This was the admitting diagnosis that showed also that this episode is related to a rape several weeks ago.

Now, Prince George's -- this Prince George's County hospital record was admittedly unknown to anyone who may be considered within the term “the prosecution.”

The only -- there is in fact no evidence that anyone even including the Prince George's County sergeant that would be Sergeant Wheeler who visited Joyce in the hospital never saw that hospital record.

So that hospital record is of Prince George's County hospital which was discovered three years after this trial by the defense counsel.

In which they're claiming now that the prosecution should have noted that and should have discovered.

Justice William J. Brennan: Excuse me, getting back if you will of these juvenile court records.

Mr. Donald Needle: Yes sir.

Justice William J. Brennan: I noticed that Mr. Prescott was asked the question by Mr. Kardy in the cross-examination.

At the top of page 215, Mr. Prescott said he made efforts in Montgomery County and Prince George's County in regard of the juvenile court, so on that basis you knew there was some action of proceeding in both jurisdiction.

And to know they didn't even go so far as to tell me that.

They just told me that I could not have the records that they have there.

The information I got from sending that came from Giles (Inaudible).

It was not suggested that he knew something and he asked for them but they wouldn't let them have them.

I don't know who they would be.

Mr. Donald Needle: Well, the they in there sir is the juvenile court authority because the juvenile or the clerk of the juvenile court who under Maryland Rule 922 which I set out in our appendix was not authorized.

Justice William J. Brennan: Yes, but he says here that both as to Montgomery and Prince George's as I understand that answer they didn't admit that there had a proceeding in Montgomery County whoever they may be.

I suppose that you can put authority.

They wouldn't let him see any record about her.

Is that what he said?

Mr. Donald Needle: That's correct.

Justice William J. Brennan: Well, and that's the only evidence here available.

Mr. Donald Needle: That is, yes sir.

Now, the second matter --

Chief Justice Earl Warren: Mr. Needle before you leave that, again, may I ask you the question I asked with Mr. Forer, do these proceedings that we have just been talking about indicate any sex background for this girl.

Mr. Donald Needle: The juvenile court proceedings?

Chief Justice Earl Warren: Yes.

Mr. Donald Needle: Well, if Your Honor please, the exhibit which is in the record is not in evidence.

Now this is petitioner's exhibit number 3 for identification.

Justice William J. Brennan: What page is that on?

The one Mr. Forer referred to us earlier.

Mr. Donald Needle: Yes sir.

Justice William J. Brennan: Page 270 to 275 (Voice Overlap)

Mr. Donald Needle: Yes sir.

Now you notice that this is the petitioner's exhibit three for identification.

Now, this was never offered into evidence --

Chief Justice Earl Warren: I didn't ask that.

I asked you, I assume by this time you and the state must know what those probation papers disclosed.

Now, I ask you if those that petition that was before the Montgomery Court the juvenile court as the time the counsel asked to see it have shown that this girl had had a background of sex.

Mr. Donald Needle: This as far as my --

Chief Justice Earl Warren: Well how can you say that?

Mr. Donald Needle: -- refreshing my recollection of this exhibit --

Justice William J. Brennan: How can you say that right in the middle of it?

This is September 5, the Court advised that this came to this Court from the state's attorney's office because the difficulties at home and also she was a state witness in a case with two adults at charge.

And it seems her situation was one where she has been on the hospital for taking pills and that's concerned about it.

Mr. Donald Needle: Well this is correct sir, but this has nothing about sexual promiscuity which is the (Voice Overlap).

Justice William J. Brennan: Well, what's that charge involving those two of those that the one in August which involves the second alleged rape?

Mr. Donald Needle: The point is as far as prosecution knowledge of this report there was none.

Now, Lieutenant Whalen testified that although he attended this particular hearing on September the 5th, now Whalen is again from Montgomery County and in charge of this investigation.

Although he attended that hearing he was never in the courtroom except when he testified and Whalen never saw this report and it is admitted in the petitioner's brief that no one or the prosecution ever saw this report.

So in direct answer to your question sir that this report show that this girl was sexually promiscuous, the answer is no.

Chief Justice Earl Warren: I didn't ask you whether she was sexually promiscuous but she was -- it was stated, I understand this record that she was in danger of becoming a juvenile delinquent because she was not amenable to parental discipline.

And that therefore she should be placed on probation.

Now, was that -- was the conduct on her part was complained out there sexual looseness or what was it?

Mr. Donald Needle: No sir.

If Your Honor pleases the record on this --

Chief Justice Earl Warren: I'm not talking about the record because I know they couldn't get it in there and I'm asking you and certainly you must know the state must know by this time what was in that petition and what was in those proceedings.

Now I'm going to ask you if it did have a sexual background.

Mr. Donald Needle: No sir.

Chief Justice Earl Warren: It did not?

Mr. Donald Needle: This was brought by Mrs. Roberts, the mother of Joyce Roberts.

Chief Justice Earl Warren: Yes.

Mr. Donald Needle: Who had visited a friend Mrs. Patterson, a probation officer in the Prince George's County juvenile court and that Joyce had been keeping late out and this was the basis of the mother's petition back in April of 1961.

Chief Justice Earl Warren: And that's all what was evidence?

Mr. Donald Needle: That is what the record shows, so yes.

There's no question about that.

Chief Justice Earl Warren: Now, the record is what was, what you stipulated was in there?

Mr. Donald Needle: Yes sir.

Chief Justice Earl Warren: What does the record itself show?

Anything in addition to that?

Mr. Donald Needle: No sir, it does not.

Chief Justice Earl Warren: The record in the juvenile court?

Mr. Donald Needle: No, the record in the juvenile court.

Now the petition had been filed by Mrs. Roberts back in April of 1961.

Chief Justice Earl Warren: That's before -- before this rape?

Mr. Donald Needle: Yes sir.

Now the hearing --

Chief Justice Earl Warren: Now, let's stay right with that petition for a moment.

What did that show?

Did it show only what you have just said or did it show more?

Mr. Donald Needle: It showed that there was a complaint made by Mrs. Roberts that her daughter was out of parental control.

Now, that was explained by Mrs. Roberts during her testimony --

Chief Justice Earl Warren: Now, let's not talk about the testimony.

What did the petition show?

Mr. Donald Needle: It showed that Joyce Roberts was out of parental control.

Chief Justice Earl Warren: And for what reason?

What was her conduct that showed that?

I suppose your -- your petition shows some misconduct on her part.

Mr. Donald Needle: The petition sir was never offered in evidence per se.

We don't find it in the petition.

Chief Justice Earl Warren: I'm not talking about that.

I'm asking you what it shows and certainly the state must know by this time what that petition showed.

Don't you know?

Mr. Donald Needle: We don't know sir.

We know what was in this -- what is in this record and what was introduced in the lower court.

Now, that petition has never been introduced.

There is only a stipulation in this record stating what it contained.

And it contained a statement that Mrs. Roberts had filed a petition stating that Joyce Roberts is out of parental control.

That a case worker investigated this complaint and suggested that Joyce Roberts be placed on probation.

Chief Justice Earl Warren: Are you saying now that the state does not know that this time what was in that petition other than as you get it from this record?

Mr. Donald Needle: Yes sir.

Chief Justice Earl Warren: Alright, that's your answer.

Justice Hugo L. Black: Who stipulated?

Who signed the stipulation?

Mr. Donald Needle: This was an oral stipulation between the state's attorney and the defense counsel at the post-conviction hearing.

Justice Hugo L. Black: That represents what the counsel stipulated it contained it.

Mr. Donald Needle: Yes sir.

Justice William J. Brennan: Where is that stipulation?

Mr. Donald Needle: It's on page 174 of the brief.

Justice William J. Brennan: I beg your pardon?

Mr. Donald Needle: On page 174 sir.

Justice William J. Brennan: Thanks.

Now, did that follow the refusal of the Court to allow evidence, the exhibit three for identification with the 275?

Mr. Donald Needle: I'm sorry, I didn't understand your question.

Justice William J. Brennan: Well I thought, Mr. Forer told us that the exhibit 3 for identification of 275 which is the formal court record of the juvenile court of the hearing on September 5, three months before the trial that that was offered in evidence and the Court refused receive it an evidence, isn't that right?

Mr. Donald Needle: It was never officially offered sir.

Justice William J. Brennan: It was not?

Mr. Donald Needle: It was only offered for identification, there was no motion to offer it into evidence, only for identification.

And this was pointed out on numerous tons by Mr. Kardy whenever the counsel made reference to this particular record.

Justice William J. Brennan: What I don't quite understand is what you referred as to 174 is the stipulation is it not regarding the Prince George's County procedure?

Mr. Donald Needle: Yes sir.

Justice William J. Brennan: Well now one of the proceedings which interest me even more.

In Montgomery County on September 5, 1961 which is at page 275 petition is exhibit three for identification.

Mr. Donald Needle: Your Honor please, the initial petition in this case concerning Joyce Roberts which ended in a hearing on September the fifth in Montgomery County had been filed in Prince George's County.

And that is the same hearing that we're talking about on the stipulation.

Justice William J. Brennan: That was transferred to Montgomery was it?

Mr. Donald Needle: Yes.

Now, the reason that that was transferred to Montgomery County and we point that out in our brief is that subsequent to the date of April the 4th when this initial Prince George's County petition was sought, Joyce Roberts and her family had been subjected to gross harassment.

The mother had requested Lieutenant Whalen to have her placed in protective custody.

And Lieutenant Whalen called the judge of the juvenile court of Montgomery County and told the judge of that court that this girl is to be a necessary witness in the state's case.

A hearing therefore was held in Montgomery County and it concerned therefore the original facts contained in this stipulation plus the fact that the state wanted her held for her own protective custody.

And that's why the hearing was held in Montgomery.

Justice William J. Brennan: Well then, what's the significance of that paragraph summary of hearing which I referred to before particularly and also she was the state witness in the case where two adults are charged.

Mr. Donald Needle: That is what I just explained sir.

Justice William J. Brennan: That's not the Giles case.

It referred to that.

Mr. Donald Needle: Yes sir, yes.

It wasn't the Giles case.

Justice William J. Brennan: Wait a minute apparently here occasion for hearing and also that said child is a necessary witness on behalf of the state regarding a criminal case pending in the circuit court for Montgomery County.

And the summary of the hearing that she was a state witness in the case where two adults are charged in this August incident, I understand were two men involved at the party.

Mr. Donald Needle: Yes sir, but no charge ever made this report refers only to the Giles case.

Justice William J. Brennan: Well I thought there were three involved in the Giles case?

Mr. Donald Needle: There were three involved sir.

But they were treated as distinct cases.

The Giles brothers is one case because a severance had been asked as far as the third party was concerned.

So, if I might continue that what we're talking about here then is not only a question of uncorroborated testimony.

But a grossly clear picture drawn by the state is to what occurred on that night.

Now, very briefly, we maintain that other than the question of the utility of information which is the only rule which Mr. Forer suggests as the court contests that there are many, many other factors in this case to be given very serious consideration before any one rule can be made to be imposed upon the states under the due process clause.

Consideration has got to be given as I pointed out number one, what did the state know or what was the state chargeable with knowing?

Consideration has got to be given, we maintain, to what did the defense know or what was the defense chargeable with knowing.

Now, as relates to the evidence itself, consideration must be given not only to usefulness of that information.

Consideration must be given to the admissibility of that information.

Again, to the discoverability of that information under existing rules of discovery and inspection available in the states.

Now, Maryland Rule 728 which is said out in this petition is broader than Federal Rule 16.

Under neither rule would any of these evidence have been discoverable in a manner of pretrial discovery had it been requested.

Now, we state that this is a very important factor to be determined along with the mere question of possible usefulness of this information.

It's discoverability.

It's availability.

Now, was this evidence merely cumulative or impeaching?

Now, if it was so, it would not have been material exculpatory evidence.

And finally, was the evidence contradictory of anything that happened in the trial?

The answer is no. The evidence was not contradictory of anything that happened in the trial.

Now, the only aspect that Mr. Forer can point to trying to show some semblance of contradiction would be the fact that Joyce Roberts denied that she was on probation.

However, the stipulation at the time of the trial and prior thereto she was not on probation.

She never was on probation and still -- and is not now.

So there is no contradiction of any trial testimony.

So we maintain that before a rule can be passed in this case that the state must disclose not only what it knows but what it maybe should find that very careful consideration has got to be given to these other factors, to what the state really knew to the question of due diligence and equal availability of this knowledge to the defense to the question of the admissibility of this information to the question of whether the evidence could have been discovered even had it been asked and note finally that in the Brady case, one of the questions or one of the prerequisites to relief was that a request for information has to be made.

Now, our Court of Appeals as I have already pointed out showed that these defendants must have known -- must have known of the character and reputation of this girl or at least had something that it should have gone and investigate.

Now, we maintain sir that no case has ever held so far as we now that unless the state has exclusive knowledge of information that the defense knows that and that is the exclusive knowledge of information within its own control that is equally available to the defense counsel that a suppression has been maintained under the Fourteenth Amendment.

Now, we maintain that the Fourteenth Amendment imposes not so broad an obligation as that which is sought here.

We say that the Fourteenth Amendment does say that a prosecutor is to prosecute with earnest and as vigor.

You have said that in the Burger Case and we maintain that what the prosecution is precluded from doing by the Fourteenth Amendment is not from becoming a partisan but by having his partisan should turn into impartiality to become impartial to the extent of being disequal of to the extent of being desized.

Justice Abe Fortas: Let me ask you when I hope this is a very simple question.

I hope it is.

Let's suppose that the prosecuting attorney, what was his name?

Mr. Donald Needle: Mr. Kardy sir, Leonard Kardy.

Justice Abe Fortas: Alright.

Now let's suppose that he personally knew that the prosecuting witness had made a complaint to the police to get them out where, tell the police that she had been raped by two men and that it had been established that that statement that she made was false and that she had been a knowing and willing participant in the act whereupon the police dropped on that.

Now the police assumed that the prosecuting attorney knew what I have just stated to you.

Now, is it in your position that he does or does not, that he would or would not have had the duty to inform the defense of those facts that when they get to firmly that's a question that is susceptible with fairly direct answer.

Mr. Donald Needle: If You Honor pleases, I would have to say that I don't know that the state's attorney could give you a quick answer on that.

I would say that he has got to weigh --

Justice Abe Fortas: But for your view, as to whether he had a duty and no circumstances to disclose the facts that I narrowed as to the defense.

Mr. Donald Needle: I would say yes sir because those facts are then completely exculpatory facts these are facts that are not just --

Justice Abe Fortas: No, they are not completely exculpatory at all.

This was another incident involving other people.

Mr. Donald Needle: Oh, well then I misunderstood your question.

Justice Abe Fortas: You currently stated that it's clearly as I put.

Mr. Donald Needle: I'm sorry.

Justice Abe Fortas: The state's attorney has knowledge that in other instance involving other men at another time the prosecuting witness complained to the police that she had been raped.

The police investigated and they concluded that the prosecuting witness had not been raped but there was no basis for such a charge that the prosecuting witness had been a willing cooperator in the venture.

In those circumstances, then along comes the Giles case.

Those circumstances, is it or is it not in your theory that the prosecuting attorney must disclose these facts to the defense?

Mr. Donald Needle: No sir, it would not have to disclose these facts.

Justice Abe Fortas: Tell me why.

Mr. Donald Needle: Because number one sir, this evidence in Maryland under Maryland law of prior false rate claim would not be admissible.

Justice Abe Fortas: It would not be admissible --

Mr. Donald Needle: No sir.

Justice Abe Fortas: -- with respect to the credibility of the prosecuting witness.

Mr. Donald Needle: This is correct sir.

Justice Abe Fortas: It would not be available for use by the defense on cross-examination as to credibility, is that what you're telling us?

Mr. Donald Needle: That is correct.

That is the Maryland law.

Yes sir and I have pointed out the cases that what we have here is not only -- not a prior false rape claim sir but we maintain we have here not a (Voice Overlap).

Justice Abe Fortas: I know that but I'm not asking about the -- I'm asking you to confine yourself to this (Voice Overlap) -- confine yourself to this hypothetical situation.

Mr. Donald Needle: The Maryland Court of Appeals has specifically held sir that evidence of a prior false rape claim is not admissible to impeach the credibility of a witness.

Justice Abe Fortas: Alright, suppose that the prosecuting attorney or where the court record that showed that the prosecuting witness had been exceedingly permissible.

Would the prosecuting attorney have a duty on these circumstances to disclose that to the defense?

Mr. Donald Needle: No sir.

Justice Abe Fortas: Why?

Same reason?

Chief Justice Earl Warren: Your answer is yes or no?

Mr. Donald Needle: No sir.

Justice Abe Fortas: Same reason?

Mr. Donald Needle: If Your Honor pleases, this evidence as long as it does not relate to specific acts would be admissible.

Specific acts of misconduct --

Justice Abe Fortas: Alright --

Mr. Donald Needle: -- are not admissible but general reputation would be admissible.

Justice Abe Fortas: Alright now, the prosecuting attorney knows this general reputation and your submission does the prosecuting attorney have a duty to disclose that to the defense?

Mr. Donald Needle: I don't know whether he has the Fourteenth Amendment duty sir.

He might have a moral obligation to it because this would be admissible evidence.

Justice Abe Fortas: But you're answering in both ways.

Mr. Donald Needle: Well, I don't know how I can honestly answer you sir.

I say that as far as the constitutional issue is concerned that there should be no positive duty on them to do so because the question is not merely that of admissibility and the question is not merely that of usefulness.

You have got to add to that other factors and other factors or did the defendant know it?

What was the real extent of the prosecution knowledge?

Justice Abe Fortas: Do you believe if the defense counsel knew or should upon reasonable investigation have known then there's no duty on the prosecution to make disclosure.

Is that your submission?

Mr. Donald Needle: I would agree to that sir.

Justice Hugo L. Black: Can I ask you a question?

Mr. Donald Needle: Yes sir.

Justice Hugo L. Black: You started to tell that, what happened when the defendant scream up to the cops.

Did I understand you to say they broke in to the car?

Mr. Donald Needle: Yes Your Honor.

Justice Hugo L. Black: How did they break in to the car?

Mr. Donald Needle: They threw, Your Honor pleases, large rocks and boulders into that car and shattered all the windows in that car.

Justice Hugo L. Black: Was that none shadowed glass or was it just regular glass?

Mr. Donald Needle: This is -- evidence sir that is not in the record and I don't know.

Justice Hugo L. Black: What excuse did they give for breaking into the car?

Mr. Donald Needle: The excuse that they gave sir was that Stewart Foster leaned down in the backseat of the car as though he were reaching for a gun and in order to prevent Foster from shooting them, they broke into the car.

Justice Hugo L. Black: Did they claim that they wanted to get the gun?

Mr. Donald Needle: They claim sir that they wanted to prevent Foster from shooting them.

That was the extent of their explanation.

Justice Hugo L. Black: And the best way to do it was to break the window?

Mr. Donald Needle: Yes sir.

Was that the -- was that the beginning of the episode?

That they just saw him reaching down to the (Voice Overlap)?

Mr. Donald Needle: Well no sir.

Prior to that time there had been a conversation.

Chief Justice Earl Warren: What conversation?

Mr. Donald Needle: In which the --

Chief Justice Earl Warren: What did they claim -- what did they claim for the both of them?

Mr. Donald Needle: Well they claimed -- the defense claimed that the state provoked this by using certain racial epithets.

Chief Justice Earl Warren: I beg your pardon?

Mr. Donald Needle: By using certain racial epithets.

The --

Chief Justice Earl Warren: You mean to stop the man and use epithets on them?

Mr. Donald Needle: That's correct sir.

Chief Justice Earl Warren: Out in the woods?

Mr. Donald Needle: That's correct.

Chief Justice Earl Warren: At night?

Mr. Donald Needle: Right, that is the answer sir.

Now, the chronology of the events were that one of the boys asked Stewart Foster for a cigarette.

Foster said he had no cigarettes.

One of the boys then asked Foster for money.

Foster said he had no money.

The boys then went behind the stalled vehicle in which Joyce and Foster were in.

It's at this point where the defendants claim they saw Stewart Foster bending down as so reaching for something.

They also claim that Foster had called them certain racial names that there had been an argument.

And because of these names and because Foster was reaching down that it was then that they broke the windows.

So there had been a conversation of course prior to the rocks being thrown.

Now, what was said is a question of interpretation, the state's interpretation where the state's evidence was that there was nothing to provoke this attack.

Chief Justice Earl Warren: We'll recess now.

I said it before you, take your chair.

I want to broaden now the question that Mr. Justice Fortas asked you a little bit, suppose that the state knew and the prosecution I mean at the time of the trial of these petitioners what the state now knows and what we now know from this record would the prosecution have been obliged to divulge to the defense any of those matters concerning the prior conduct of this girl for after the rape?

Mr. Donald Needle: I would answer Your Honor that Fourteenth Amendment does not impose that obligation in this case because the facts of this case as they are now all cumulatively known.

Number one would not have been admissible in evidence.

They -- we admit would have been useful.

But --

Chief Justice Earl Warren: It would have been what?

Mr. Donald Needle: Useful sir.

But we maintain sir that utility of information is not to be considered by itself that there are even with all of these cumulative evidence too many other factors involved here.

The admissibility of the evidence.

The fact that the evidence could not have been discovered under the Maryland rules and the implications that would be drawn by the state having to give this type of information.

We maintain sir that under the Fourteenth Amendment that there would have been no obligation on the state's attorney had he known all of these evidence cumulatively even as opposed to what he in fact didn't know.

Chief Justice Earl Warren: Well, borrowing your rules of evidence and considering the question of whether or not these men had a fair trial and in that were entitled to take all signs and circumstance of the record into our consideration.

Would you say that if the state then knew what you now knew and in order to have a fair trial they should have the divulged that information to the defense.

Mr. Donald Needle: I would answer no sir that with all of these information cumulatively that what it now shows would not have precluded or did not prevent the petitioner from obtaining a fair trial.

Chief Justice Earl Warren: Well, let -- let's put it this way then, the -- let's go to the sentencing process.

If they had that information is it not likely that the judge would have taken that information into consideration in sentencing these men and that in doing so, he would have expired some other sentence other than death even down to I think you said that minimum was 18 months or something like that 18 months to death might be not then of even some other sentence than that if that had disclosed to them?

Mr. Donald Needle: Yes sir, I think in that regard that perhaps this evidence might under a moral obligation have been disclosed as regard to the issue of sentence but I point out also in answer to your question to that the claim of the petitioners here is not that this evidence related so much to the sentencing because that's really a moot question at this point since the sentence has been commuted by the governor.

Chief Justice Earl Warren: Does that make it moot because the judge might have given him 20 years, might have given him 15, or might have given him 10 might have given him 18 months.

Mr. Donald Needle: This is correct sir.

Chief Justice Earl Warren: Well so you can't say that's moot can you?

Mr. Donald Needle: Well, perhaps it's not moot sir but perhaps I (Voice Overlap).

That is correct Your Honor.

I think that perhaps that the better answer is that the claim of the petitioners goes to the due process aspect of the fairness of the trial as regards their guilt or innocence not as regards the punishment to be imposed.

And I think the claim here relates to due process in consideration of guilt of or innocence of these people.

Chief Justice Earl Warren: Do they wave everything but that?

Mr. Donald Needle: Well I don't say that they waive it sir but I say that this is what they are claiming here.

Chief Justice Earl Warren: Why isn't it here?

They didn't waive it.

Mr. Donald Needle: Then I would assume by implication that the question would be here.

Yes sir.

Chief Justice Earl Warren: Because they're not -- the gravamen of their charge is not that it's admissible that could be thought out by different manner but the gravamen of their complaint is that this information was in the hands of the state and they did not divulge it.

And whether it's on the trial I would say that whether it's on the sentence if it is just improper that that should have -- information should have been given to them it should have been given to them if not for the trial certain report for the sentencing process which was later.

Mr. Donald Needle: Well, Your Honor as I have said, I agree that as regards to the sentencing aspect of this case, this evidence certainly would have been useful.

Chief Justice Earl Warren: Useful well by of course it have been useful.

I think we all agree on that.

But was a responsibility on them to give it to the defense, that information.

Mr. Donald Needle: Well if Your Honor please --

Chief Justice Earl Warren: Have they known what we all know now?

Mr. Donald Needle: Had they known what we all -- what is known now, I would say yes sir.

Chief Justice Earl Warren: Alright.

Now based on what knew now should not this case be sent back at least for the sentencing process where those things can be considered?

Justice Byron R. White: How did you know the trial judge (Inaudible).

Mr. Donald Needle: Well if Your Honor pleases this information, the post-conviction proceeding was filed 30 months after the conviction, that this information was found within that period of time.

Justice William J. Brennan: Yes, but there was a hearing Mr. Needle on September the 5th, three months before the trial.

Now, I take that Maryland has some kind of pre-sentence investigation proceeding don't they?

Mr. Donald Needle: Yes sir.

Justice William J. Brennan: And that involves probation officers and the like.

Mr. Donald Needle: That's correct.

Justice William J. Brennan: Was there such a report from the trial judge?

Mr. Donald Needle: There is no evidence in the record sir that there was in this case.

Justice William J. Brennan: Well ordinarily would we expect the course?

Mr. Donald Needle: Ordinarily sir that is the normal course but in this case, there is no specific evidence that there was one.

Justice William J. Brennan: Does Maryland have a practice that in the defense counsel before a sentence see the investigation of the Court?

Mr. Donald Needle: If there is one, the defense counsels are entitled to see it.

Justice Byron R. White: Let me pursue that the matter in September 5 hearing that this would clear my own mind that Lieutenant Whalen was at that hearing, in the juvenile court hearing.

Mr. Donald Needle: Yes sir, but denied being in the room during the course of the hearing.

Justice Byron R. White: I thought he had no recollection of the record.

Mr. Donald Needle: My recollection of the record is that Lieutenant Whalen denied being in the room at the time --

Justice Byron R. White: Isn't that in direct contrary of what the record but the discovering of the Giles?

Mr. Donald Needle: The record shows sir that Lieutenant Whalen stated that he had had a conversation with the doctor.

Now both the doctor denied and Lieutenant Whalen denied that this conversation had ever taken place but the most that I can show as far as the presence of Lieutenant Whalen at that particular hearing would be that at one particular point, he was there --

Justice Byron R. White: But in formal record at page 275 of the record it says that those (Inaudible) Detective Whalen.

Mr. Donald Needle: That is correct sir.

Justice Byron R. White: And over it and then summarizes the hearing.

Page 277 it says Lieutenant Whalen stated that Dr. Connor of hospital of Montgomery (Inaudible).

Now the inference to the written record was ever introduced from the post-conviction hearing I gather that Whalen was there.

Mr. Donald Needle: That is correct.

Justice Byron R. White: What was the basis for and I noticed that before Whalen have been invited to the post-conviction hearing that the probation officer, the juvenile court probation officer Lynn Adams and Lynn Adams was at by counsel for the petitioner what went on at the hearing?

Who said what to whom?

There was objection, objection was sustained.

The object I suppose to the question was to show that Lieutenant Whalen who was there or to find out if he was there, he was there what kind of information he obtained at that hearing?

And if the juvenile court officer Lynn Adams has made an investigation a part of this hearing which the record shows that she had, you would think that there might have been a lack to disclose to the hearing other than just give the through summaries that are (Voice Overlap).

Now, what was the basis do you know for the exclusion of that evidence?

Mr. Donald Needle: I do not know sir.

I cannot --

Justice Byron R. White: Would you think it would be rather relevant thing (Voice Overlap)?

Mr. Donald Needle: I would think it would have been relevant --

Justice Byron R. White: I suppose you would agree that Lieutenant Whalen might have learned something.

Mr. Donald Needle: Correct.

Justice Byron R. White: That might have obligated the prosecuting the attorney to dispose the defense.

Mr. Donald Needle: This is correct.

But --

Justice Byron R. White: Now, was that the cost of the -- that evidence was excluded.

Was that objection preserved?

Is that one of the issues that was taken to the Maryland Court or not?

Mr. Donald Needle: I don't believe that this was -- this particular issue was taken to the Court of Appeals.

I'm not --

Justice Byron R. White: But the question that was asked at that time Lieutenant Whalen added was precisely on the issue we've been talking about.

Mr. Donald Needle: That's correct.

Justice Byron R. White: Did all these information about the prosecuting witness did all these information come out of that hearing (Inaudible)?

Mr. Donald Needle: And the only information we have in the record sir is Lieutenant Whalen denied.

Justice Byron R. White: What is the deal in the information?

Mr. Donald Needle: Being in the room and this is in our position of course to this petitioners exhibit number 3 for identification which states Maryland is present and that at one point Lieutenant Whalen made a statement that he had spoken to the doctor.

Now, if the actual juvenile records of the court if Your Honors would feel that they are important as relating to the case whereas to the states knowledge, the state would be very happy to include certified copies --

Justice Byron R. White: Well, they never gave it.

As I understand it they did not do it.

They did not provide verbatim transcript to the juvenile court hearing.

They are in a very good (Inaudible).

Mr. Donald Needle: Well Your Honor this is -- I'm saying we --

Justice Byron R. White: Isn't that so?

Mr. Donald Needle: -- do not know what was in those particular juvenile court records.

We've never seen them.

Justice Byron R. White: But isn't the only record, the actually the only record in that hearing that took place in September 5th is this summary?

Mr. Donald Needle: Apparently it is.

But I'm not sure --

Justice Byron R. White: (Voice Overlap) transcript.

Mr. Donald Needle: I'm not sure, I cannot definitely --

Justice William J. Brennan: But I suppose Mr. Needle, Ms. Lynn Adams who apparently did make according to her testimony an investigation before that hearing of September 5, she may have filed some kind of a report sort of thing.

And that certainly is not here in the record.

Mr. Donald Needle: That is not and the state would be happy and would offer to have entered into the record before this Court.

Any information known to either the juvenile court of Prince George's County or the Montgomery County juvenile court would offer that for the court consideration.

Now I've stated that we, in the attorney general's office have never seen it.

We handle the appellate trial and would be happy to offer any juvenile court records for whatever relevance they might shed on this case.

Chief Justice Earl Warren: I suggest that you send both to us if you will.

Mr. Donald Needle: Yes sir.

Chief Justice Earl Warren: Now, I want to ask you of course you, you said that your defendant that if we knew -- if you knew then what we know now about the facts of this case, in order to assure fair trial they should have disclosed the information.

Now, and then I ask you if the fact that we do know it now in considering this matter do you object to sending it back to have these matters disclosed to counsel and to the Court we're hearing on the sentence.

Mr. Donald Needle: Well, of course, Your Honor asking me to make a concession which I don't think this case calls for.

For the simple reason that we maintain that we did not have all of this knowledge and that unless you can first find that we did that we don't reach this particular proposition.

Chief Justice Earl Warren: Yes, I know what your position is but if you do know now that in order to accord a man a fair trial he should have had certain information.

He and the judge have had certain information which the prosecution have but didn't disclose shouldn't he now be able to have that in order to determine whether he has to serve the rest of his life in jail or whether he might receive some clemency of some kind.

Mr. Donald Needle: Perhaps sir but I would suggest that the post conviction trial court had all of these information.

Chief Justice Earl Warren: I beg your pardon?

Mr. Donald Needle: I would suggest sir that the post conviction trial court had all of these information and our Court of Appeals had all of these information.

Chief Justice Earl Warren: Your trial court decided against you too?

Mr. Donald Needle: Yes sir, but the Court of Appeals reversed the trial court.

Now, this information therefore was wade and was going over by our appellant reviewing authority.

And our highest court has decided that this evidence was not sufficient to show a denial of due process.

Chief Justice Earl Warren: But let's agree here decisive to decide it too.

Now Mr. may I just ask one question as to whether or not the record shows that the trial judge did or did not have this information about the probation matters.

Mr. Donald Needle: I don't --

Chief Justice Earl Warren: At the time of the trial, at the time of the trial and at the time of the sentencing is there anything in the record that you can point to show that the judge did or did not have this evidence concerning what occurred in this probation proceedings.

Mr. Donald Needle: Yes sir.

The record as far as my recollection is was to void of any evidence one way or the other and my impression from my own knowledge of this case is that the judge did not have before him these records I am not certain but as I say, I don't think he did it and it wasn't sure.

Chief Justice Earl Warren: I gather that impression myself because I have been reading from pages 156 and 157 and the judge said there that “Of” course the jury didn't believe you, the jury rightly didn't believe you, what I have said to your brother and codefendant in this case applies to you and that is the fact that nothing had been shown in extenuation.

And I would assume that that --

Mr. Donald Needle: Correct sir, that was my impression.

Chief Justice Earl Warren: Yeah, thank you very much.

Justice Hugo L. Black: May I ask you.

I would like to ask you what was the date of the conviction?

Mr. Donald Needle: Conviction sir was December 5, 1961.

Justice Hugo L. Black: What was the date of the sentencing?

Mr. Donald Needle: Sentencing was December 11, 1961.

Justice Hugo L. Black: Does the law require that your probation officer make an investigation and report it to the judge before he sentence?

Mr. Donald Needle: I don't know that there is a particular statute my counsel is --

Chief Justice Earl Warren: You may ask your counsel if you need to.

Mr. Donald Needle: If Your Honor pleases, this is a practice which is usually done by our Maryland Court.

There is no statutory authority making this a necessity or demand.

But it is the practice, yes sir.

Chief Justice Earl Warren: If there was such a report in this case would you include that please with the probation officer's report that you're going to send.

Mr. Donald Needle: Yes sir.

Chief Justice Earl Warren: Thank you very much.

Mr. Donald Needle: Thank you.

Justice Hugo L. Black: What actual (Inaudible)?

Mr. Donald Needle: They are certainly like imprisonments.

Justice Hugo L. Black: (Inaudible) after 15 years?

Mr. Donald Needle: 15 years, yes sir.

Justice Hugo L. Black: (Inaudible)

Mr. Donald Needle: In 1961 until the present time sir.

Justice Hugo L. Black: Under the present time (Inaudible).

Mr. Donald Needle: That's correct.

It would be a minimum Your Honor, of 15 years before they would be eligible for parole probation.

But of course they are at this point considered as for life imprisonment.

Justice Byron R. White: Counsel for the petitioner said that the lady was the first who brought up the topic of sex and then the defendant I heard the (Inaudible).

Do you agree that he brought up the topic of sex first or invited the sexual intercourse?

Mr. Donald Needle: The testimony concerning this sir was that --

Justice Byron R. White: I am talking about her testimony.

Mr. Donald Needle: Yes sir, her testimony was that she told John Giles the first of the defendants to find her lying I the woods that if he would help her move back further she was only 30 feet or so from the car that she would allow him to have intercourse with her and she explained this statement by saying that she hope that if John Giles who had found her would let her get back out of the way, that she would then be able to get away from all of them.

Although a literal reading of the record suggest that Joyce Roberts was the first person to mention that.

However --

Justice Byron R. White: That's from -- that's from the language though.

Could you give me that language that you're relying on there, plus what the record stated?

Is it on page 55 or --?

Mr. Donald Needle: At the top page of 66 sir is the question, now Joyce when this boy John first found you, didn't you tell him, if he would help you get away that you would let him have a little, do you remember that?

He answered yes sir, and question did you claim to let him have a little if you'd help him?

Answer, no sir.

The first comments or in this case concerning sex was not made at the time Joyce Roberts was found.

What was made at the car, prior to the time that it was demolished and broken into.

So the first question in this case concerning sex are not these words of Joyce Roberts.

Justice Hugo L. Black: What are they?

Mr. Donald Needle: But an alleged statement made by one of the defendants was say was let's drag her out of the car and have intercourse.

Of course, the words used were not quite the same as I just read.

Justice Hugo L. Black: But that was stated at the car.

Mr. Donald Needle: Yes sir.

Justice Hugo L. Black: Was there any indication that she offered then to commit to it?

Mr. Donald Needle: No sir, she ran from the car after the statement was made.

Justice Lewis F. Powell: Mr. Needle is that the record you (Inaudible)

Mr. Donald Needle: Thank you sir.

Chief Justice Earl Warren: Mr. Murphy, the time has expired but we've taken so much of the time, I'm going to give you 10 minutes to conclude your argument if you will please.

Argument of Robert C. Murphy

Mr. Robert C. Murphy: Mr. Chief Justice and may it please the Court.

I will be mindful of the fact that we have overstayed the time.

I was -- I would develop what argument I could make it within an abbreviated period of time that it will be brief and somewhat abortive.

The second one of the petitioner relates to the Maryland's former practice where all the -- which limits the trial motion for three days including on any go round, including newly discovered evidence.

My brother challenges that on the basis of the Fourteenth Amendment and says and that seems that the state has required to provide to condemn persons a reasonable opportunity presumably through a due trial mechanism demonstrate their innocence on the basis of newly discovered evidence that the Maryland rule of three days simply was not reasonable, was lacking in fundamental fairness and a classic due process terms that is shocking to the universal sense of justice.

We say in response to that Your Honor is that due process does not require a new trial and that where a state grants a new trial, it may impose such time limitations on the availability as it sees fit.

We don't here maintain the three days is reasonable or unreasonable and I might add, that's no longer the Maryland Rule, we now have the 90-day new trial motion for newly discovered evidence but this Court has enunciated the principal proposition many years ago.

Mr. Justice Holmes in the case of James versus Appellant, 192 U.S. in 1904 decision he said subsequently and very briefly in three sentences and with the Court's permission, I will simply quote that on this particular point, “We no more can doubt the power of the legislature to enact that statutes of limitation or motions for a new trial and we can doubt its power to an access of statute for the bringing of action.

It may be a questioned whether there would be any constitutional objection to a law making the original judgment final and doing a way with new trial altogether.”

Re-hearings, new trials are not essential to due process of law either in judicial or administrative proceedings cited in earlier case of this Court, Railroad Company versus Bach as in 154 U.S.

That proposition remains the law of the land as I understand it Your Honor of course the new rules of the court both state and federal and federal rules of criminal procedure setting forth time limitations on new trials that are now with us.

We -- the former rule of the expiration of the term of Court has a cut off period for new trials is no longer the law but there have been cases of this Court where individuals sought to avail themselves of new trials after the 5-day period.

This Court has said, this is a matter of power of jurisdiction.

You must do it within the period specified or not at all.

Again, I say the question of the power of jurisdiction there is not due process requirement involved.

My brothers seem to suggest that -- apparently seek to utilize a due process clause here as a vehicle to create power or to enlarge power as we say of course they are being held constitutional predicate for a new trial here.

The State of Maryland's limitation of three days although it may appear unreasonable is not unconstitutional.

There is a second point perhaps more difficult, the equal protection argument of my brother, basically amounts to this.

As Your Honors know in Maryland the jury is the judge of the law and the fact in the criminal case.

From that predicate, the intention is made that the Maryland Court of Appeals has denied the petitioners in this case equal protection of the law when they substituted their judgment for the exculpatory value of the alleged rape claim, the alleged suicide evidence for the determination that may have been made for a jury.

They say in essence that we have picked out a specie of case and have applied a different standard to this type of case and we would do any other case we violated around the principle and the principles of due process and equal protection.

We say to that of course that the predicate to make that argument a rational one is that the Maryland Court of Appeals had indicated that the evidence of question was admissible.

It did not.

The Maryland Court of Appeals held that the evidence of the false rape claim and of the suicide attempt was not admissible so that the equal protection argument falls right there.

It requires a bottom of admissibility of the evidence before it can be utilized.

I think what my brothers had in mind was the fact that the Court of Appeals, fortuitously perhaps stated that even if this evidence were admissible and nevertheless it wasn't of sufficient exculpatory value to be -- to give rise of the application of the suppression doctrine for that we say it is.

This was a Post-Conviction Procedure Act proceeding with which I am sure Your Honors are familiar.

We have that Act in Maryland.

That is a civil case.

This was not a trial of criminal case but many of that in Maryland and all our Post-Conviction Procedure Act case there is no jury.

The judge determines all relevant matters of fact and law.

Suppression cases are treated like any other case.

The voluntariness case for example of a confession, the trial judge makes all relevant determinations.

We haven't treated suppression cases any different than we treat any other case.

It's not a violation of equal protection.

If I haven't made myself clear in this brief time I'm talking rather fast but we would say this as Your Honors recall in Thomson versus (Inaudible), you said in essence that substantial allegation of newly discovered evidence where all of these available in a federal habeas corpus setting that if such allegations are made and incumbent upon a trial judge to have a hearing to determine whether or not this newly discovered evidence would furnish a predicate for a constitutional claim.

You also said that the newly discovered evidence which merely goes to the question of innocence or guilt is not grounds for such a hearing and in other words I think the essence of what you've done was to reaffirm the proposition that a new trial was not an essential reading of due process.

But you haven't slammed the door and said that you can't do anything with this newly discovered evidence or whatsoever.

Again, I apologize for this and --

Chief Justice Earl Warren: Is there any way under Maryland law where he can now do -- these petitions can do anything that so far as this newly discovered evidence.

Mr. Robert C. Murphy: I think basically Your Honor the newly discovered evidence is that what she says is suppressed.

Chief Justice Earl Warren: I beg your pardon?

Mr. Robert C. Murphy: Yeah, she is doing it right now.

He -- the newly discovered evidence is that what she said is suppressed and upon which he's taking a two-pronged attack.

One on suppression to get a new trial and if that fails then they simply want a new trial on the basis of innocence or guilt which we say is not proper.

Chief Justice Earl Warren: Yes, well I just begging your co-counsel has said that this wasn't admissible because of Maryland law.

You now say that they can use the newly discovered evidence in other ways.

Is there any other way than the one they have chosen here under Maryland law?

Mr. Robert C. Murphy: I think not.

Chief Justice Earl Warren: You think not?

Mr. Robert C. Murphy: I think not.

Chief Justice Earl Warren: Thank you.

Justice William J. Brennan: Mr. Forer, before you begin, may I ask I gather if you prevail, there will have to be a new trial.

Rebuttal of Joseph Forer

Mr. Joseph Forer: Yes.

Justice William J. Brennan: And I take it, I think presently stand a new trial but again was all on the death penalty.

Mr. Joseph Forer: Yes.

Justice William J. Brennan: The Giles brothers familiar with that?

Mr. Joseph Forer: They certainly are.

Justice William J. Brennan: And they are willing to?

Mr. Joseph Forer: They are not only willing, they have insisted.

Let me first answer the question that Mr. Justice Brennan raised.

There was no, no pre-sentence investigation in this case.

The judge could have ordered one, he did fail to order one.

Justice Abe Fortas: Did the state's counsel agreed with that?

Unknown Speaker: I did not.

Justice Abe Fortas: I see.

Mr. Joseph Forer: I do know --

Justice Abe Fortas: Excuse me.

Thank you.

Mr. Joseph Forer: Not only do I know but it would have been impossible within the -- in the five-day interval that conducted such an investigation.

I do know there was none.

Secondly, there was no pre-sentence investigation between verdict and sentence.

The judge just in order and there was not and he sentenced him to death without pre-sentence investigation and after a five-minute hearing in which the only thing that was offered was some reputation testimony by one person which is in the record.

Secondly, on the question of sentencing, there is -- we would not be satisfied to have a case where a portion of the law I'll say that right now.

But it is true and this is relevant to your question Mr. Chief Justice.

There is a Fourth Circuit case construing Maryland law in the advanced sheets.

It's not in neither brief.

Whitaker against the Warden 362 Federal Second 838, 362 F.2d 838 which construing Maryland law on the question of sentence says that it is unquestionably clear that the promiscuity of a rape victim would be admissible in mitigation of sentence.

I want to -- on the question of petitioner's exhibit 3 --

Chief Justice Earl Warren: What page was that you say?

Mr. Joseph Forer: 838, 362 federal second 838 of the advanced sheet.

On the question of petitioner's exhibit 3 which is the Montgomery County juvenile court hearing.

I just don't understand our counsel can say we didn't offer it.

It's right there in the record at page 173 of the record we offered it.

The state objected and the Judge Moorman excluded it on the state's objection.

Why he did it, I can't understand.

If you want to see the discussion that went on the full evidentiary transcript which is in the certified record.

Justice William J. Brennan: Discussion of one of the --

Mr. Joseph Forer: Whatever, we have a very rough time at the post-conviction proceeding getting any evidence in.

Justice Byron R. White: Well, I gathered that all of your effort to get in the record what appeared as an indemnified hearing in the Montgomery County juvenile court.

Mr. Joseph Forer: Were frustrated.

Justice Byron R. White: Were included.

Mr. Joseph Forer: That's right.

Justice Byron R. White: All of the evidence here, it was excluded.

Mr. Joseph Forer: Yes.

Justice Byron R. White: Including any --

Mr. Joseph Forer: Including testimony on the records.

Justice Byron R. White: Now the counsel for the state suggested that the lieutenant denied.

The lieutenant denied being at the hearing, as I read the record, he admitted that he was at some hearing but he can't remember what the date was.

Mr. Joseph Forer: No, what happened was --

Justice Byron R. White: He couldn't remember what went on the hearing he was at.

Mr. Joseph Forer: No, it was more than that.

He admitted being at the hearing.

He showed a very weak memory to the point where he couldn't even remember things that the hearing folks are saying.

But he did say that on -- he wasn't at the hearing at all times.

He said he went in and out a couple of times.

That's the gravamen of his testimony.

He was at the hearing but he said that he didn't remember some of it and he wasn't in the hearing every minute of the hearing.

On the question of what transpired at the car, the version given by Mr. Needle seems to me to be an inaccurate account of the state's evidence.

It certainly does not correspond to the contrary evidence of the defense.

Furthermore, among the new evidence that we sought to get a hearing on was a great mass of evidence in addition to the evidence that we claim suppressed including evidence relating to Stewart Foster and the accounts given by Stewart Foster after -- immediately after this alleged rape which would have served to corroborate the testimony of the defendants that they would not the aggressors.

They did not provoke the altercation and we were never able to get that new evidence in because of the Maryland three-day rule.

Now, we're not claiming that the evident information that was suppressed proves innocence.

But what we are saying is that the information was of a quality that the defense should have had the opportunity to present that or the fruits of the information to the jury.

And it wasn't up to the prosecutor to decide whether or not this kind of evidence should be given to was at least he could have done was leave it to the judge as to whether the jury should pass on it.

And now, at this late date, the Court of Appeals says he probably breached his obligation but the evidence wasn't sufficiently exculpatory and in that respect, the Court of Appeals is invading the providence of the jury which in Maryland law is the sole judge of the exculpatory value of admissible evidence and in that respect, we were denied equal protection under all the opinions in the Brady case.

Mr. Chief Justice, may I have about three minutes on the question of the admissibility?

Mr. Needle also states the Maryland law very seriously when he says that there would not be admissible under Maryland law the fact of a prior false rape claim.

In Smallwood versus Warden which was a case by the federal district court of Maryland which is quoted in our brief, Chief Judge Thompson granted habeas corpus because of a suppression of a prior rape accusation where there wasn't even evidence that it was false.

In this case, neither the majority nor the minority adopted his theory that this evidence is clearly been held inadmissible.

They said it might well have been admissible and we've all -- but we don't pass on it in this content.

Now, what he is talking about is the case of Rau against the State which was decided in 1919 which was a statutory rape case in which the evidence that the child involved had made a prior accusation was offered solely on the theory that it impugned the character of the girl.

At this time, because there was so little knowledge of psychiatry, it wasn't offered on the theory for which it is now considered admissible, namely the theory of showing either mental illness or mental bias, a kind of corrupt bias against the class of people namely men of whom the accused are members.

The Maryland Court of Appeals in 1919 well this kind of evidence is not admissible as going to character because we don't care about character.

But that is why neither Smallwood against the Warden nor the majority here said this means that the evidence is inadmissible for other purposes.

For other purposes it is clearly admissible.

Of those grounds, I want to thank the Court for giving me the extra time.

Thank you.

Featured:

Napue v. Illinois - Oral Argument

Tue, 04 Dec 2012 20:37:51 +0000

Case:

Napue v. Illinois

Media File:

583_19590430-argument

Related Transcript:

583_19590430-argument

Transcript:

Argument of George N. Leighton

Chief Justice Earl Warren: Number 583, Henry Napue, Petitioner, versus People of the State of Illinois.

Mr. Leighton, you may proceed.

Mr. George N. Leighton: Mr. Chief Justice, may it please the Court.

This Court granted certiorari to review the judgment of the Supreme Court of Illinois in which post-conviction relief was denied to the petitioner.

The federal question is whether petitioner was denied due process of law in the Illinois criminal court because perjury was knowingly used in obtaining petitioner's conviction for the alleged crime of murder.

Petitioner is now serving a sentence of 199 years in the Illinois State Penitentiary pursuant to the state court conviction.

In its judgment to the opinion, the Supreme Court of Illinois held that there was perjury knowingly used in petitioner's prosecution.

The facts arose in this fashion, if Your Honors please.

In an indictment in the state court, the petitioner was prosecuted for a crime that was alleged to have been committed in 1938.

The trial took place in 1940.

The principal witness against the petitioner was a man who previously had plead guilty under a separate indictment in which he was charged with the same murder.

He was the only witness that the prosecution could rely upon because the other alleged eyewitnesses had moved away from Illinois.

It is conceded by the prosecution in this particular case that without this man's testimony, the petitioner's conviction could not have been obtained.

The man's name was Hamer.

He was bought back from the penitentiary on habeas corpus.

On cross-examination, counsel for petitioner here, the defendant in the original prosecution, asked this witness whether or not he was testifying freely and voluntarily, and he said, "Yes," that he was.

On redirect examination, the prosecutor asked this witness directly, “Has the judge,” naming the judge, “promised you any consideration for your sentence,” and there was a negative answer.

And then he asked him, “Have I,” meaning himself, the prosecutor, “promised you any consideration?”

And there was a negative answer.

The witness was dismissed.

Some six years later, this prosecutor resigned from the Office of the State's Attorney of Cook County.

And on his own, filed what in Illinois is called a coram nobis petition.

At that time, the post-conviction law of Illinois had not been adopted.

It was supported by this prosecutor's affidavit in which he described in detail the agreement that had existed between him and this witness by which this witness promised that he would testify against the petitioner and furnish evidence which the prosecutor thought was indispensable to obtain his conviction in return for an expressed promise that he, the prosecutor, would recommend to the appropriate authorities the reduction of this witness' then 199-year sentence.

In fact, the prosecutor was so strong in his language that he characterized this agreement as a compact between this witness and the lawfully instituted authorities of the State of Illinois in return for his testimony against the petitioner, flatly contradicting the testimony of this principal witness at the trial.

The petitioner then obtained a copy of this coram nobis petition and this affidavit of this prosecutor and made it a part of his application for post-conviction review in the Illinois court.

There was a hearing held and relief was denied.

There was a petition for writ of error to the Supreme Court of Illinois, and the Supreme Court affirmed, holding as a matter of fact that there was perjury and that it was knowingly used according to the dissenting opinion construing the majority opinion, five judges voting for affirmance and two judges dissenting including the Chief Justice of the State of Illinois.

But the majority opinion went on the ground that this perjury, though it was used, somehow, the Supreme Court said, was explained to the jury by what they characterized as subsequent testimony.

A reading of the record, as we point out in the brief, shows that when Hamer testified in direct answer to the questions put to him on redirect examination, there was no further testimony by Hamer, and there is no evidence of any other kind going to the jury.

The Supreme Court of Illinois seemed to adopt the doctrine which I'm not familiar but there is something ameliorating about revelation of perjury and we say, in our brief, we know of no -- no such doctrine that if perjury is explained to a jury, it doesn't amount to the infraction of the guaranties of due process which Your Honors have said.

Justice Potter Stewart: I don't quite follow on you there, Mr. Leighton.

I read that same statement in your brief, and I don't -- I don't quite follow what you mean by saying that.

Mr. George N. Leighton: Well, if I understand the Supreme Court of Illinois correctly, Your Honor, in the opinion, the Supreme Court said that the perjury was revealed to the jury.

And because it was revealed to the jury, therefore, there was no denial of due process.

Justice Potter Stewart: Well, the -- when the -- when the witness -- when Hamer first testified, he said nobody promised him anything.

I don't have it.

I'm not reading it, but I'm --

Mr. George N. Leighton: That's right.

Justice Potter Stewart: -- paraphrasing it from my memory.

Mr. George N. Leighton: That's right.

Justice Potter Stewart: And then -- and then on cross-examination, he said, “Well, as a matter of fact, somebody from the public defender's office did say he'd use his best efforts on my behalf.”

Mr. George N. Leighton: That's right, Your Honor.

Justice Potter Stewart: And then on redirect examination, he told the -- Mr. Myers, the prosecuting attorney, that Mr. Myers hadn't promised him anything at all and that was --

Mr. George N. Leighton: That's right.

Justice Potter Stewart: -- that -- that's about the way the record shows.

Mr. George N. Leighton: That's what the record shows.

Justice Potter Stewart: And so, the fact is that in -- that in answer to the last question on redirect examination, that was perjury and the -- and the perjury was not revealed to the jury, wasn't it?

Mr. George N. Leighton: That's right.

But the Supreme Court --

Justice William J. Brennan: That's the reason I didn't quite understand --

Mr. George N. Leighton: Yes.

Justice William J. Brennan: -- I didn't follow your statement about revealed perjury.

Mr. George N. Leighton: Well, the Supreme Court's opinion, which appears on page 72 of the record, which, I think, is an erroneous construct of the record, if I may say so, Your Honor, those on the theory that the perjury which had been committed was revealed to the jury.

Now, just where it was revealed, it doesn't appear as far as we can tell.

And our position is that the Supreme Court erred in this construction of the record that the perjury committed by him was never revealed because Hamer was discharged as soon as he made this answer.

I might say this in order to emphasize the point.

The gravamen of the injury here occurred on redirect examination.

Mr. Myers' affidavit clearly shows that he was very familiar with Hamer.

He had questioned Hamer at the time of the crime.

He had prosecuted Hamer.

He then prosecuted Webb.

He had prosecuted Poe who was executed.

And I'd like to call Your Honors' attention to a fact, which is significant to me.

It is common practice in Illinois Criminal Law which I am familiar in these -- years at the bar, that where there are multiple defendant, the practice is to join them all in one indictment and charge them all as principles under our principal and accessory statute.

It is significant, it seems to me, that in this case, they indicted each of these alleged defendants separately, indicating to me and this record is assessable to this understanding that when Hamer was first arrested, he never mentioned Napue's name because if he had, they would have returned one indictment against Webb, Napue, Hamer and Poe.

And under our Illinois practice, they could -- they could prosecute them each seriatim as they were apprehended.

It is significant, it seems to me, in this record that each of them was indicted separately and prosecuted separately and in the record is shown the numbers of their respective indictment, indicating that when Hamer first spoke to -- to Myer, he did not tell Myer, who was the principal prosecutor, about the existence of Napue.

Now --

Chief Justice Earl Warren: Was any action they have taken against the District Attorney?

Mr. George N. Leighton: No, Your Honor.

Chief Justice Earl Warren: None with it?

Mr. George N. Leighton: No.

You see, Your Honor, the -- the publication -- the publication of this -- of this affidavit attracted attention and it was a -- a kind of attention that seemed through some people to have been laudatory.

He was the spectacle of the prosecutor who had sent the man to 199 years in penitentiary, now asking the Court to give him relief.

It painted a very beautiful picture the way the newspapers took it.

It didn't paint such a good picture to Napue who was in the prison because Napue read the newspaper story and wrote to the clerk and got a copy of Mr. Myers' affidavit.

Chief Justice Earl Warren: Well, if he was -- if -- if he was stating the fact in his affidavit, wasn't he guilty of subornation of perjury?

Mr. George N. Leighton: It would appear so.

If Your Honor should read Mr. Myers' affidavit carefully, it even contradicts Napue's -- Hamer's testimony --

Chief Justice Earl Warren: Yes.

Mr. George N. Leighton: -- because Mr. Myers' testimony creates the impression that when Hamer was arrested, Hamer said that he didn't know anything about this robbery that allegedly occurred in 1938.

Hamer's testimony which is incorporated here in this record was to the effect that when he left on this trip with these other alleged co-defendants, he knew they were going to rob this place.

Hamer's testimony is explicit on that point.

Mr. Myers' affidavit tries to paint the picture that Hamer was an unwilling participant in this robbery.

Chief Justice Earl Warren: Well, just a matter of interest.

Have the statute of limitations run on -- on subornation of perjury at the time the District Attorney made this affidavit?

Mr. George N. Leighton: Yes, it was.

It will be three years.

And this was in 1946 in the --

Chief Justice Earl Warren: Yes.

Mr. George N. Leighton: Well, may I -- may I answer Your Honor's question this way?

If perjury was committed by the District Attorney, the Assistant State Attorney, it would have occurred by him.

It would have been committed by him at the time he filed his -- his affidavit and -- and any law enforcement authority would have three years under Illinois law --

Chief Justice Earl Warren: No, what I was -- what I was saying, I don't want to prolong, but what I was saying is if he by asking these questions and inducing the -- the witness to deny that he had such an agreement with him if it was perjury for the -- for the witness to answer as he did is certainly was subornation of perjury --

Mr. George N. Leighton: Oh, certainly.

Chief Justice Earl Warren: -- on the part of the --

Mr. George N. Leighton: Oh, certainly.

Chief Justice Earl Warren: -- District Attorney --

Mr. George N. Leighton: Yes.

Chief Justice Earl Warren: -- wasn't it?

Mr. George N. Leighton: It will be three years after that date.

Chief Justice Earl Warren: I supposed it will be three years after (Voice Overlap) --

Mr. George N. Leighton: After that date.

Yes, Your Honor, on Illinois practice.

Chief Justice Earl Warren: I don't want to take any more of your time.

Mr. George N. Leighton: On Illinois practice.

Now, I'd like to devote just a moment to the contentions of the respondent with regard to the brief filed by the petitioner.

The respondent relies in Hysler versus State of Florida which, we submit, is clearly distinguishable.

In the Hysler case, what the Supreme Court of Florida said and which Your Honors upheld was that the coram nobis practice under Florida law complied with the requirements of due process, the provisions which Your Honors have said should be maintained in some State, in some form, by which post-convicting relief can be granted one who claims that his conviction denied him due process.

But Supreme Court of Florida held plainly that on Hysler's application for coram nobis, he did not make out a case by which he could have obtained relief even if he proved the allegations of the petition and the case was peculiar on its facts because as Your Honors pointed out, Hysler had remained in jail for four years.

Then on the eve of the execution of one of his co-defendants, the co-defendant issued an affidavit exculpating Hysler.

Now, that case on its facts was difficult to handle like in (c).

But in the dissenting opinion of Mr. Justice Black and two other Justices of this Court dissented holding that it was not a matter of testing the credibility of the affidavit at that state of proceeding but rather, if the allegations were such as to show a denial of due process, Hysler was entitled to a hearing which the denial of the application did not grant him.

But in this case, in our case, the Supreme Court of Illinois has found as a matter of its judgment that there was perjury here.

And I call Your Honor's attention to fact that in an earlier phase of the post-conviction proceeding, the petitioner here, Napue, had been denied a hearing and the record shows that he took a -- an application for writ of error to the Supreme Court of Illinois and the Supreme Court of Illinois remanded the denial of a hearing, and this appears on page 34 and 35 of this record, and found as a matter of fact that his allegations in the post-conviction petition entitled him to a hearing.

And this judgment of affirmance, denial of relief, came after the reversal in which the Supreme Court ruled on his earlier writ of error proceeding.

Justice Potter Stewart: Now, on those -- among the allegations in that earlier writ however, wasn't there a claim of the use -- unconstitutional use of a coerced confession?

Mr. George N. Leighton: That's right, Your Honor.

Justice Potter Stewart: And doesn't it appear now in the record of this case as a record on page 45 and 57 and maybe elsewhere that no -- no confession was used in the trial?

Mr. George N. Leighton: There's no -- no confession was used.

I might say Your Honor, I represented the petitioner on this hearing and I have to conclude from a careful reading of the record that what had occurred was this.

There were some oral testimony by one or two of the police officers about a confession but there was no confession actually used.

In fact, Mr. Myer concedes in the -- in the hearing and we finally got him to concede, it appears on page 57 of the record, that no written statement was taken from petitioner.

This was a -- a construction of the -- of the record by the -- by the petitioner, which, I think, was not supported by the record.

I think what occurred was that he was asked some questions and some of the officers who testified made some statement of one kind or other in -- in implying that he had made a confession, oral in term.

But we could not find any specific reference in the record of the trial that I examined to sustain this contention of the petitioner.

Justice Potter Stewart: As I read the record at page 45, the petitioner himself says, and I'm quoting now, “They did not use any confession in my trial.”

Mr. George N. Leighton: That's right, Your Honor.

He did -- he did say that.

They didn't use it.

Justice Potter Stewart: Now, while we're on the facts, Mr. Leighton, you've confront yourself, as I gather, the -- perhaps the Supreme Court of Illinois did to the version of the facts contained in the application for a writ of error coram nobis on behalf of Hamer which was filed by Myers.

Mr. George N. Leighton: That's right, Your Honor.

Justice Potter Stewart: Myers also testified in this very case, didn't he, and his testimony appearing on pages 50 to 60 in the record?

Mr. George N. Leighton: That's right, Your Honor.

Justice Potter Stewart: And wouldn't it be fair to say that his testimony particularly that on page 58 and 59 very substantially from what's contained in his application for the writ of error coram nobis?

Mr. George N. Leighton: Yes, Your Honor.

It varies great deal.

In fact, at this hearing, Mr. Myer had testified --

Justice Potter Stewart: On behalf of the State actually.

Mr. George N. Leighton: On behalf of the State in defense of the petition of habeas corpus.

His testimony in this case contradicts his -- his affidavit that he filed in behalf of Hamer.

His testimony here was that he promised Hamer that he would intercede with the law enforcing authorities if he were satisfied, eventually, that he was telling the truth.

Well, I have a little difficulty following all that except to agree with Your Honor that his testimony here contradicts his affidavit.

Now --

Justice Potter Stewart: Was that actually an affidavit or was it an unsworn pleading?

Mr. George N. Leighton: No, Your Honor, it was an affidavit.

It -- the -- the sworn part of the affidavit appears on page 20 --

Justice Potter Stewart: 4.

Mr. George N. Leighton: -- 24, his affidavit, you see, in support of the -- of his petition --

Justice Potter Stewart: I see.

Mr. George N. Leighton: -- appears on page 24 of the record and sworn to him -- by him.

Justice Potter Stewart: And insofar as there is a factual conflict, I -- it's your position, as I understand it, that the Illinois Supreme Court, the -- the majority of the Court, the Court itself found the facts as they appear, substantially as they appear in the affidavit.

Mr. George N. Leighton: That's right Your Honor.

Justice Potter Stewart: And that the way therefore foreclosed by that finding?

Mr. George N. Leighton: That's right.

I -- I'm -- I'm -- my --

Justice Potter Stewart: Is that your position?

Mr. George N. Leighton: That's right, Your Honor.

Thank you.

I wish to reserve 10-minute, if Your Honor please, for rebuttal.

Chief Justice Earl Warren: You may, Mr. Leighton.

Mr. George N. Leighton: Thank you.

Argument of William C. Wines

Mr. William C. Wines: May it please --

Chief Justice Earl Warren: Mr. Wines.

Mr. William C. Wines: -- the Court.

Your Honors, Mr. Leighton has made a fair statement of the case as he invariably does.

However, it may assist the Court in his consideration of this case by stating the facts a little more elaborately than he did and I refer not only to the facts that he omitted that helped the State but facts that he omitted which, I think, may help the petitioner.

The perspective of the facts is this.

On the day in 1938 in question, four men entered a cocktail lounge near the wee hours of the morning armed and undertook to execute a holdup.

An off-duty police officer, police officer off-duty by the name of O'Malley drew his gun and started shooting.

Officer O'Malley was fatally wounded in the mallei, the affray and died some nine days later.

Also slain in the affray was one of the robbers named Townsend.

One of the participants in the robber was -- in the robbery was this witness Hamer.

Two other men, one of whom Hamer identifies as petitioner Napue took Hamer out.

Still a fifth man was at the wheel of a car.

One man, Your Honors will recall, one of the robbers had been slain and was in the cocktail lounge.

The policeman was mortally wounded.

These two men who were not hurt took Hamer who was badly wounded in the chest and the third man drove Hamer with them to a doctor's office.

Hamer was left at the doctor's office.

The doctor administered first aid, perhaps saved his life, and called the police.

Hamer confessed -- well, that isn't quite a fair statement.

Hamer admitted participating in the robbery but said at first that he was an involuntary participant, that the other men told him that they were going for an automobile ride that they stopped into the cocktail lounge, that he didn't know that any robbery was meditated and that somebody handed him a shotgun and said, “This is a stickup,” and that he wasn't an involuntary participant in the robbery.

He identified Poe, Webb and petitioner, Napue, as three of the other four participants in the robbery, the fourth being, of course, Townsend who had been slain in the robbery.

Poe was apprehended, tried, convicted, sentenced to death and has been executed.

Petitioner was apprehended some two years after the original occurrence.

It appears that he made a confession.

It does not appear that the confession was used in his trial.

It appears that he reenacted the crime.

It doesn't appear whether that reenactment was testified too at his trial.

He was tried and on the trial, Hamer was brought from the penitentiary and testified against him.

I think with the Chief Justice's permission, so to be absolutely accurate, I would like to read some of the language in which perjury admittedly consists.

Justice William J. Brennan: Mr. Wines, (Inaudible)

Mr. William C. Wines: Yes, Your Honor.

We don't question the fact.

Justice William J. Brennan: We may -- we may determine this case on the admission then that there was perjury on --

Mr. William C. Wines: I don't see anyway to avoid it and then meted, Your Honor, after -- after studying this record.

The Supreme Court of Illinois found that there was.

And while you -- Your Honors can review a -- a State Supreme Court's finding of fact, I think one is favorable to the petitioner just as you can once the adverse of the petitioner.

I am convinced there was perjury in this record myself.

Now, was Your Honor --

Chief Justice Earl Warren: Oh, I -- I thought your going to leave --

Mr. William C. Wines: Yes.

Chief Justice Earl Warren: -- in some place and I was just going far away where you were reading from.

Mr. William C. Wines: Well, I -- I -- at several places in the record, I will read from the dissenting opinion which begins at page 73 in the brown-covered transcript of the record.

Mr. Myers, the prosecuting attorney is interrogating Hamer and he asks, “Did anybody give you a reward or promise you a reward for testifying?”

Answer, “There ain't nobody promised me anything,” after some material that neither the petitioner nor the State deem as important to print, Hamer is asked by Myers, “Directing your attention to that time and place in Statesville, did you tell Mr. Steinberg," one of Napue's attorneys, "that you were drunk that day?"

"No, I didn't."

I don't want to read all of this.

Hamer had pleaded guilty and been sentenced.

He testified that a man whom he thought to be an assistant public defender had promised to recommend leniency to the proper authorities if he would testify against his co-defendants.

He said he thought the man was a public defender.

On redirect examination, he testified that the trial judge had promised him nothing.

And the last question he was asked, “Have I,” that's Mr. Myers, the prosecuting attorney, “promised that I would recommend any reduction of sentence to anybody?”

The answer is, “You did not.”

Now, Myers deposed in his affidavit that in fact although him -- he, himself, elicited this testimony, "You have not made me any promise."

He had promised the petitioner that if the other witnesses, the other participants corroborated Hamer's claim that he was an involuntary participant in the robbery, he would recommend a reduction in the sentence.

But the Supreme Court of Illinois said that petitioner could hardly have understood Hamer's promise to be other -- anything other than a categorical promise to recommend leniency if he would cooperate in testifying against his co-defendants.

Now, the question that emerges from this record is this, Your Honors, and its foreknown which the Supreme Court of Illinois divided by two.

Justice Potter Stewart: Incidentally and before you leave (Voice Overlap) --

Mr. William C. Wines: Yes, Your Honor.

Justice Potter Stewart: This probably is entirely irrelevant.

I'm just curious.

What was the upshot of the application on behalf of Hamer?

Mr. William C. Wines: I don't know.

Maybe Mr. Leighton knows.

Justice Potter Stewart: That's --

Mr. William C. Wines: But I -- I don't know on the record or off the record.

Justice Tom C. Clark: What is his sentence?

Mr. William C. Wines: Hamer's sentence was 199 years, as I recall.

Now, the question as phrased in our brief is, I think, carefully and accurately phrased.

We thus phrase it.

Petitioner was convicted of murder upon inter alia the testimony of an accomplice who first denied then admitted that he had been promised the recommendation of leniency for his testimony.

However, the witness testified falsely as to the author of the promise of leniency, ascribing the promise to a man who may believe to be an assistant public defender when, in fact, the testimony -- the promise was that of the prosecuting attorney.

The prosecuting attorney vowed safe to the Court no revelation of the falsity of the testimony and conviction ensued.

The question is the trial court and the Supreme Court of Illinois held that the jury was surprised by Hamer that he had lied.

They were not apprised, however, as to the author of the false testimony.

The majority of the Supreme Court of Illinois concluded that in no reasonable likelihood could the identity of the author of the admitted promise of leniency have resulted in an acquittal or any lesser sentence in that meted to petitioner and held that there had been not any denial of that fairness which is of the essence of due process avowal.

They affirmed the trial court's dismissal of petitioner's post-conviction proceeding, two justices dissent.

Those are the facts and that is the question.

And I have very little to say other than to argue with -- in this fashion.

The Supreme Court says in its opinion that it doesn't appear whether petitioner's confession was used against him or not, and it doesn't.

It does appear that no -- no writing signed by petitioner or allegedly signed by him was introduced.

It does appear, however, that upon being apprehended, he readily admitted his guilt and reenacted, voluntarily reenacted the slaying.

It doesn't appear that he testified in his own behalf.

Of course, he didn't have to.

The witness Hamer first said, “Nobody has promised me nothing.”

He later retracted that perjurious statement and said that in fact a promise of recommended lenity had been made but he lied about who made the promise, attributing it to an assistant public defender rather than to the prosecuting attorney.

Now, the Supreme Court of Illinois respected the rule of Mooney against Holohan and sequent cases.

And it -- there's still the essence of its holding in this case in language that I should like to cite briefly, if I may have the Chief Justice's permission.

The Supreme Court of Illinois said, “Where a conviction is obtained by the -- a presentation of testimony known by the prosecuting authorities to be perjured, the constitutional requirement of due process is not satisfied," citing authority.

"To show a denial of due process within the meaning of this rule does not necessary that the false testimony be concerned directly with a question of guilt.

Even though it bears only upon the credibility of the witness, it may have the effect of depriving the accused of a fair trial."

Then the Supreme Court adds immediately this sentence, “Whether such effect is present, depends, of course, upon the circumstances of the particular case."

And the Supreme Court of Illinois held that the jury knew that Hamer had been promised something that he was testifying with an expectation of reward and that it couldn't, in any reasonable likelihood, have made any difference to the jury whether the author of the promise was a member of the staff of the public defender or of the staff of the prosecuting attorney.

Two justices thought there was a vital difference between the two functionaries, the public defender and the prosecutor and the Senate.

That's the position of Illinois, Your Honors, that not that it was a burden that -- that -- once a man is shown as -- as petitioner did show that perjury has been knowingly suborned by prosecuting officials, it must fairly appear, affirmatively appear that the perjury couldn't, in any reasonable likelihood, have affected the result once it's known that perjury is committed even though there isn't a disclosure that the witness has correctly identified the man who made the promise.

We say that --

Justice Potter Stewart: Isn't that a -- isn't that a contradiction in terms and it was known that some perjury was committed but the jury was never told how much perjury was committed.

Isn't that really the fact of the matter?

Mr. William C. Wines: That is the fact of the case, Your Honor.

I don't want to disassemble --

Justice Potter Stewart: Yes.

Justice Tom C. Clark: -- the facts at all.

Those -- those are the facts.

The Supreme Court of Illinois, canvassing the entire record, held that there was no reasonable likelihood of any prejudice to petitioner and therefore held that he had not been denied due process.

We asked the Court to affirm that holding.

To answer the Chief Justice's question, Mr. Hamer, so far as I know, has never been prosecuted.

Statute of limitations is run on a prosecution whether it is run on a disciplinary proceeding.

Disbarment is a highly debatable question under the Illinois law at the present time.

Justice Felix Frankfurter: Are you sitting down?

I -- I just wonder.

What do you think the Hysler case has to do with this case?

Mr. William C. Wines: Only this, Your Honor, that in the Hysler case, coram nobis was brought and there, the Court -- a majority of this Court read the record as finding that no perjury had in fact been committed or if committed, it was not known to public officials.

The majority of this Court read the Florida Supreme Court's opinion as passing upon the question of fact.

Justice Felix Frankfurter: Is passing upon the adequacy of the affidavits submitted to the Florida Supreme Court under its procedure that the Florida Supreme Court to decide whether there's enough to raise the question of fact before the trial court.

I forget the name of (Inaudible)

Mr. William C. Wines: That's right.

That's correct.

Justice Felix Frankfurter: Now, here's an -- here, the point is, there's no question about conceded use of --

Mr. William C. Wines: That's true.

Justice Felix Frankfurter: -- conceded use of perjury --

Mr. William C. Wines: That's true.

Justice Felix Frankfurter: -- concededly used --

Mr. William C. Wines: That's true.

Justice Felix Frankfurter: -- as the knowledge of the District Attorney.

Mr. William C. Wines: That's true.

Justice Felix Frankfurter: Well, now, what is the -- how can you say -- what's the bearing of the Hysler case.

Mr. William C. Wines: The Hysler case has this bearing and this bearing only and no other.

It holds that where the State Supreme Court has found that there is no substantial question of fact as to the denial of what Your Honor, Mr. Justice Frankfurter, called the essential fairness of the trial, that finding will be respected.

In this case, we have a finding that there was perjury but that the perjury was not of a kind that could, in any conceivable, readily conceivable likelihood, have contributed to the conviction and only asked that that be treated as a question of fact and although the --

Justice Felix Frankfurter: That is not a question.

Whether -- you can call it a question of fact --

Mr. William C. Wines: Yes.

Justice Felix Frankfurter: -- but it's an ultimate determination of whether or not there's a violation of the Due Process Clause.

That's what this is about.

Mr. William C. Wines: That's correct, Your Honor.

Justice Felix Frankfurter: Now, that wasn't Hysler at all.

Hysler -- the Hysler case raised the -- raised the question whether the local Florida procedure by which you could go into the trial court if convicted and there established the fact that in fact, the District Attorney used perjurious testimony whether it is outside of the Due Process Clause to have a shifting process.

Thereby, the highest court of the State, on affidavit, is asked to determine whether there's enough of an issue on that underlying question of fact, namely, can you made out a case to bring him to question to impeach the untaintedness of a verdict?

Here, the question is, there was use of perjurious testimony --

Mr. William C. Wines: That's right.

Justice Felix Frankfurter: -- can the State said, “Well, we look at the record and we say that it wouldn't have made any difference if this fellow had never put on the stand or had never lied?

That's right, isn't?

Mr. William C. Wines: Not -- not precisely right.

Justice Felix Frankfurter: Well --

Mr. William C. Wines: There's a -- there's a little more --

Justice Felix Frankfurter: You add a touch of precision to it.

Mr. William C. Wines: But there's a little more than that, Your Honor.

There was perjured testimony.

Justice Felix Frankfurter: Knowingly used?

Mr. William C. Wines: Knowingly used.

The jury knew that the man was a perjurer.

Justice Felix Frankfurter: Well --

Mr. William C. Wines: That was revealed to the jury.

Justice Felix Frankfurter: That the jury knew that -- but the jury didn't know that it was the District Attorney that --

Mr. William C. Wines: That's right.

Justice Felix Frankfurter: -- was stating --

Mr. William C. Wines: That is right.

That is -- that is --

Justice Felix Frankfurter: Well, that may make all --

Mr. William C. Wines: -- the nub of the matter.

Justice Felix Frankfurter: -- the difference in the world.

Mr. William C. Wines: I beg your pardon?

Justice Felix Frankfurter: That may make all the difference in the world.

The jury may recoil from bringing in a -- a death sentence when it knew that the District Attorney was up to getting the witness to perjure himself.

Jury -- a jury might be called even in Chicago.[Laughter]

Mr. William C. Wines: If that is --

Justice Felix Frankfurter: Isn't that true?

Am I drawing on fantasy?

Is it just that?

Mr. William C. Wines: No.

A jury might.

The Supreme Court of Illinois held that where they knew that the man was testifying with a hope of reward, it made no difference once the whole comment.

Justice Felix Frankfurter: Well, but is that the world of reality?

I should think the pressure exerted by the State is one thing, the pressure exerted by the assistant public defender is another.

Isn't that true?

Mr. William C. Wines: Well, they are -- they are different things.

There's no question about it, Your Honor.

Justice Felix Frankfurter: Well, they are very different things.

Mr. William C. Wines: And the -- the -- I have stated the question and I think I have fairly stated the facts out of the considerations that move us to ask the Court to affirm the conviction.

Chief Justice Earl Warren: Thank you.

Mr. Leighton.

Rebuttal of George N. Leighton

Mr. George N. Leighton: Mr. Chief Justice, and may it please the Court.

I would like first to answer Justice Stewart's question about the fate of Hamer.

When we appeared before the Supreme Court of Illinois, one of the arguments made by the State was that Hamer was still in prison under his 199 years sentence.

I didn't want to sound facetious but I thought it's proper to observe that all that proved was they were unfair both to Hamer and to Napue that Hamer, they told me, he's still in the penitentiary.

Now, Mr. Wines make some point about the concessions and admissions by Napue in this case.

I don't sole read the record.

Hamer pled guilty to the crime in which he was charged.

This petitioner pled not guilty, submitted his case to a jury and the record here shows through the testimony of one of the police officers who testified in the post-conviction proceeding (Inaudible) that when he was present in court, Napue took the stand and testified and he heard Napue, the petitioner here, testifying in his own defense.

In the post-conviction proceeding here, Napue gave detailed testimony explaining how he happened to know Hamer and explained it quite diametrically opposed to the version which Hamer gave in his prosecution.

He explained that he was at home with his wife when Hamer came there in an automobile and someone told him that is rumor, Hamer had been wounded and he assisted this other person in helping Hamer because Hamer was sent to him to have been wounded.

And that's how he happened to know of the incident of Hamer being wounded.

So that his testimony, we must presume that his testimony in the post-conviction was the same testimony gave in his own defense at his trial.

He -- he denied that he was a participant in this crime.

He pled not guilty.

He submitted his case to the jury.

And in his post-conviction case, he gave detailed denials of his participation in this crime.

And he claims in his testimony and in his affidavit that not only was Hamer aligned with regard to this promise, and his point is this.

That had Hamer testified truthfully, then his lawyer would have had the opportunity to have revealed to the jury that this man is giving this testimony not because he's telling the truth but because he's hoping that his 199 years would be reduced, and it's a very important principle of law.

In People versus Savvides, I think the best proof that I have or the best case that we can find in this country, and I concede that it was not a case construing the Fourteenth Amendment, it was the case in which the Court of Appeals of New York ruled that the duty of the prosecutor whose witnesses lie in the presence of the jury is to speak up immediately and tell the Court and jury, "My witness is lying."

That's the duty of the prosecutor.

That's the tenor of a fair trial before one of our state courts or jury.

Otherwise, due process doesn't mean what we think it means.

And this petitioner said that when Hamer lied about a public defender and he knew Maury Myer from a public defender.

Why?

Because he had seen Maury Myer in the penitentiary.

He knew that Maury Myer was not a public defendant.

And Hamer was trued enough to know that by same public defendant, he was creating an impression, which was not only misleading but basically untrue.

He gave the impression to that jury that a public defender who couldn't help him was -- made a promise of recommending leniency which he couldn't make.

And the man who recommended -- who -- who told him that was the man who was standing before the jury, eliciting from him a false bit of testimony which, if revealed, would have lead the -- the way to the truth to being shown to that jury.

And inherent in this due process question is the duty of the prosecutor, an indispensable part of a trial and living up to the finest tradition of the bar when a witness of his tells a lie, to speak up promptly and reveal that fact to court and jury and accord to the man before the bench and bar a fair trial.

Thank you.

Chief Justice Earl Warren: Mr. Leighton, before you sit down, on behalf of the Court, I -- I would like to thank you for your representation of this defendant.

We understand that you are not here as a paid advocate but -- but you are here by assignment of the Supreme Court of -- of Illinois.

And that is a great public service for lawyers to perform and we always feel comforted when lawyers do act in that manner.

We thank you, sir.

Mr. George N. Leighton: Thank you.

Chief Justice Earl Warren: And Mr. Wines, we -- we thank you for your usual frankness with the Court, for your fairness to your opponent and for the fervency of your representation --

Rebuttal of William C. Wines

Mr. William C. Wines: Thank you, Your Honor.

Chief Justice Earl Warren: -- to the people of Illinois.

We're adjourned.

Mr. William C. Wines: Thank you.

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