LOCATION: Circuit Court of Mobile County
DOCKET NO.: 670
DECIDED BY: Warren Court (1969)
LOWER COURT: State appellate court
CITATION: 395 US 708 (1969)
ARGUED: Apr 23, 1969
DECIDED: Jun 16, 1969
Facts of the case
Media for Banks v. California
Audio Transcription for Oral Argument - April 23, 1969 in Banks v. California
Number 670, Fred Banks versus California.
Thomas J. Klitgaard:
Mr. Chief Justice may it please the Court.
This is a criminal case from California.
It involves the application of the harmless error rule to comment and instruction on petitioner's failure to testify of trial.
The crimes involved were robbery and attempted robbery.
The only issue was one of identification.
Mixed in, in the totality of the circumstances was a show up, a line up and a showing of photographs by the prosecution to witnesses before trial.
Also involved was the use of petitioner's silence against him in another way that is to the use of adoptive admissions to the use of petitioner's silence in the place of accusations.
At trial procedurally, petitioner was without counsel and defended himself in pro per.
On appeal, there was a partial denial of counsel as we will see.
The case begun in 1962, petitioner was convicted in the Alameda County Superior Court of two counts of robbery and one count of attempted robbery.
He appealed counsel was appointed.
Counsel briefed and argued the case.
The District Court of appeal affirmed the conviction.
Counsel, the next day, after the affirmance wrote petition letters saying he was withdrawing from the case.
It was no evidence anywhere that counsel sent a letter of that -- a copy of that letter to the Court of Appeals.
Petitioner then went ahead and filed the pro per petition for hearing in a California Supreme Court.
The Court denied the hearing and petitioner then came here.
He filed the pro per petition for cert and in 1966, the Court granted the petition.
And in a per curiam remanded the case to the District Court of Appeal for further consideration in light of Griffin against California.
Alright the court, the case gets back down to the Court of Appeal.
Petitioner writes the court and asks for counsel, someone to brief and argue his case.
The court denies petitioner counsel, it says, he's still represented by the original attorney and if he wants to file a brief, better get one in promptly.
Petitioner eventually filed the brief in pro per.
The State Attorney General sent a paragraph or a page and a half letter to the court saying that, the evidence was overwhelming against petitioner and besides petitioner and his pro per petition had not made any factual showing to show a miscarriage of justice.
The Court without oral argument about two weeks after receiving the state's letter entered -- filed an opinion that incorporated its first opinion by reference.
Referred briefly to the evidence and then said that in view of the overwhelming evidence of petitioner's guilt.
It was not reasonably probable a different result would have been obtained absent to comment on his failure to testify.
Petitioner again in pro per filed the petition for certiorari in this Court.