Chapman v. California – Oral Argument – December 07, 1966

Media for Chapman v. California

Audio Transcription for Oral Argument – December 08, 1966 in Chapman v. California

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Earl Warren:

Number 95, Ruth Elizabeth Chapman and Thomas LeRoy Teale, petitioners versus California.

Morris Lavine:

May it please the Court.

Earl Warren:

Mr. Lavine.

Morris Lavine:

This is an appeal from the decision of a Supreme Court of California on a death penalty case involving the petitioner Thomas LeRoy Teale and life sentence of Ruth Elizabeth Chapman who was — both of whom were convicted in San Joaquin County following a trial by jury.

At the beginning, I would like to make two corrections or in the record.

I call the attention to the clerk of the Court that this case came up during the pendency of the Griffin case and as stated in the respondent’s brief on page 15 all over conviction in the case at bar was obtained in 1963, the processes on direct appeal have not been completed prior to Griffin and hence the Griffin rule would apply say for the application of a harmless error rule of page 15 in the respondent’s brief.

I want to call that correction to Your Honors because in my summary of the argument, I stated that the Griffin case have been fully decided.

This was incorrect and I call it to the attention of the clerk didn’t get corrected in my brief.

The second point I wish to call to Your Honors’ attention is the fact that Article 6 Section 4.5 the so-called harmless error rule in the State of California has been practically readopted in its words on November 8, 1966 when California adopted a partial set of amendments to its State Constitution.

So, where we refer to Article 6, Section 4.5 of the California constitution that is now Article 6, Section 13 of the California Constitution.

Well, however, it would — it is practically the same in its wording as it was prior I think there’s just one word changed but not materially to affect anything that we argue here.

The — this case involves the question of the comment of the prosecutor throughout the case in his argument in the circumstantial evidence case.

In — prior to Griffin versus California, which Your Honors remember, the Supreme Court of California sent a case to this Court, sent copies of its decision, I believe in Modesto — People versus Modesto.

I believe Justice Brennan will recall during the oral argument he called the attention the fact that the Supreme Court of California was trying to prejudge this Court action.

After this Court passed on Griffin versus California and reversed Griffin on the basis of comments by the prosecutor on the failure of the defendant take the stand, California again repetition this Court or rehearing which was denied and raised this question of the harmless error rule.

Now, again we have in Chapman and Teale versus California the question, the admitted the fact that throughout the argument of the prosecutor there were complete comments by the prosecutor on the failure of the defendants plural to take the witness stand and this Court has set forth for a decision by this case whether the violation of Griffin versus California, number 609 was error, cannot be harmless in this case and so I will meet both of those questions on those so to speak.

First of all, I think there is own case that Your Honors have had before you where there has been such a replete and continues argument on the failure of a defendant to take the witness stand.

The — in this case, the very briefly the facts are, did the bartender was found dead in a gulley on October 18, 1963 and at the time of his having been found there, the state traced back the case and commenced the prosecution arresting Mrs. Chapman on October 26 and bring her back and taking her statement, taking her to the district attorney’s office where she made an 84-page statement as of 1963, it was October 18, 1962.

The — she was taken to the district attorney’s office and there she was questioned extensively and made an 84-page statement without the benefit or advice of counsel.

While the statement itself was that — has reduced in evidence.

She was urged to see a psychiatrist and the district attorney secured a psychiatrist to see her and his testimony before the Court was largely based upon this 84-page statement which he made to the district attorney.

Now, the prosecutor went back, Mr. Ferguson who was the deputy district attorney went back to pick up Teale after he was arrested on November 2 and thereafter came back with Teale who was placed in a cell with another man who later became a witness against Teale.

But neither Chapman nor Teale took the witness stand.

They stood on their constitutional rights both defendants were indigent.

The Supreme — the Court appointed counsel, the public defender was first appointed and later got relieved because of a conflict of interest and these two gentlemen were appointed by the Court to represent the defendants in the trial.

Mr. Richard Johnson who sits here was the former assistant district attorney in San Joaquin County and the other lawyers and immanent lawyer of the bar there and they saw the case through the Supreme Court of California.

Now, upon their advice and on the advice of their counsel, neither one of these defendants took the witness stand but the prosecutor kept repeatedly buttressing his case where he lack proof with arguments.

Now, these people could tell you what they chose not to testify.

It would take me nearly all of my time that to read some of these comments but I’m going to read a few just to call to Your Honors’ attention the many places in this lengthy record where the defendants were found guilty on the basis of comments by the prosecutor and later by the direction of the Court that they could’ve taken the stand and if they did not then that the jury could draw from that fact the inference that they were guilty.

On page 20 of my opening brief, I set forth Ruth Chapman is sitting right over here.

Morris Lavine:

She is one of the defendants in this case and she is the one who certainly if anyone in this room or in this state knows what was in those boxes, she is the one.

But once again she did not take the stand, raise her right hand and tell you about that.

She didn’t take the stand at all ladies and gentlemen.

She could’ve come up and tells you — us exactly what Articles were set.

So, you may draw any inferences from that that you wish as long as they are reasonable.

Now, we come first of all to the issue of the gun and the gun that was used or the guns that were used allegedly in the murder.

Now, the prosecutor says, he doesn’t know which gun was used and they brought neither of the guns that were allegedly apart of this transaction were ever found by the prosecutor brought in similar guns or guns that were suppose to be like those that were used.

And now, the prosecutor then argues here.

He says that now, page 1808 of the reporter’s transcript and incidentally the transcript was not transcribed but you have the copy of the original record here in the clerk’s office.

Now, ladies and gentlemen, I don’t know which one of these weapons was purchased first.

I don’t know that it particularly makes any difference but as you know we have had no testimony at all in that regard.

In fact, I might add that the only person or persons I could give testimony in that regard would be of course the defendants themselves.

So, we don’t know when they were purchased or rather we know the date but we don’t know the exact time or what sequence was for this I refer to here for the record people’s exhibit number 14, there’s 32 caliber pistol which was purchased by the defendant Ruth Elizabeth Chapman.

Now, he says they don’t have the weapon but they’ve got a replica there.

Now, he says they can’t tell what he goes on at some pages of argument and that he says they can’t tell which weapon was used and they don’t know but the defendants if they took the stand could tell the Court which weapon was used.

So, he says, it’s a constitutional right in both of these defendants see to fit to avail themselves of that constitutional right.

But I say to you ladies and gentlemen, there are many things in this case and I will try to point them out to you at least probably not all that these defendants are in a position to take that stand and to testify under oath and give you facts concerning.

They have not seen fit to avail themselves of the opportunity.

Then again, he says, now up to this point page 1824 of the reporter’s transcript, I appeal that the testimony clearly shows that the defendants, number one, there is motive, not in necessity item to the crime at all but only helpful, ladies and gentlemen, to determine whether or not they committed it and then he talks about a check that was passed without sufficient funds and he says, later on at page 1826.

Now, ladies and gentlemen in reference to the weapons being purchased in Reno, Nevada on October 12 you have heard ladies and gentlemen no testimony and you will recall clearly you were going to have some difficulty, you really are as reference to what is and what is evidence in this case and believe me I have a few comments to say on that a little later on.

But if you will recall as far as evidence is concerned or of the truth of anything at all, you don’t have any evidence on why these pistols were purchased?

Why did Ruth Elizabeth Chapman buy two weapons?

Well, you do recall that she told on one occasion that she had a piston stolen from her vehicle and when she was taking a little trip across the country, you remember that testimony and then I’m skipping now.

Then he says — then he says, but certainly the defendant Ruth Elizabeth Chapman could tell you, she could tell you one under oath.

She could subject herself to cross-examination and she could tell you then and it would evidence before you.

Once again, she has not chosen to do this.

So, any inference you may draw there from will be an adverse inference under the circumstances and under the instructions of a court, you are exclusive judges of the fact themselves.

And I could continue on and I have quoted several of these other passages in my brief and then the comments on Teale, page 1854 of the record of the comments on —

Abe Fortas:

I thought the issue was a little different?

Morris Lavine:

What is that Your Honor?

Abe Fortas:

I beg your pardon.

Maybe I’m wrong but I thought the issue was not whether these particular comments were harmless that and the state’s submission whether on the basis of the balance of the evidence, the case was overwhelming so that the error complain did not result in miscarriage of justice.

Morris Lavine:

Yes.

That is the point I’m coming to, Your Honor, but I have to lay predicate to show the character of these comments.

So, we’re to supply what the prosecution was unable to prove in the case.

Now, we come to the question of whether or not this Court has ever held that the violation of a constitutional right is harmless error and we come to the point that Your Honor has just raised in the matter.

I wanted to lay the predicate, Your Honor, of the terrific amount of comments made throughout to show just how the prosecutor supplied the absence of proof that was his burden by comments by him as to the failure of the defendants to take the witness stand and to supply what the Griffin case says cannot be supplied to use the silence of the defendant as the basis of conviction.

Byron R. White:

Do you think Griffin really rests on the evidentiary of this utility of comments or that the comments have no evidence regarding or the silence has no evidentiary value at all, do you think it rests on there?

Morris Lavine:

Yes, Your Honor.

My — my interpretation of Griffin as Your Honors laid it down was that silence could not be use to supply an evidence and that the silence of the —

Byron R. White:

What’s the difference?

That doesn’t — that’s different.

Morris Lavine:

What is that Your Honor?

Byron R. White:

Of course that’s what the Court said that that isn’t — did it say that silence has no evidentiary value?

A lot of things I believe the evidentiary value you can’t use.

Morris Lavine:

Well, as I interpreted Griffin Your Honor, that was the import of the Griffin case.

I — I have been wrestling with that principle, Your Honor, since Adamson versus California 18 years before when Justice Black in a very illuminating dissent and very wonderful dissent that’s read in all the law schools today stated the position that this Court has now taken in Griffin versus California.

In Adamson, we started 18 years ago where the comment of the prosecutor —

Byron R. White:

Well, the state doesn’t argue with that here that there was a violation of Griffin, does it?

Morris Lavine:

No, it does not argue that there was a violation of Griffin.

It argues whether it was harmless error.

Now, —

Byron R. White:

And you’re arguing that this error would harm your client because it really was the major ingredient in the evidence?

Morris Lavine:

Yes, Your Honor.

I argue two possessions in connection with this matter.

First, I argue that being a constitutional violation, being a violation of a constitutional right that it cannot be deemed to be harmless error that this Court has never said in any of its cases that error of this — of a constitutional proportion was harmless error.

Now, I go back to your earlier —

Hugo L. Black:

Do you mean Mr. Lavine that as I understandyou to it defendant, you’re arguing that it can never be harmless error even though it was a very, very, very slight incontestable point.

Morris Lavine:

Well, you’re —

Hugo L. Black:

To that, are you going that extent?

Morris Lavine:

I’m arguing if those are the constitutional point that it’s not a slight incontestable point.

Hugo L. Black:

You argue that any time it’s shown that that is done, can make any difference of power?

Morris Lavine:

No.

Hugo L. Black:

Isolated now, are you?

Morris Lavine:

No.

I’m arguing that if it’s a constitutional violation it can’t be an isolated point.

Hugo L. Black:

Well, that’s what I’m saying.

Morris Lavine:

That is right Your Honor.

If it —

Hugo L. Black:

And it can’t be held to be an isolated under the requirement even though anybody could look at it and tell beyond any shadow of doubt that it was harmed.

Morris Lavine:

Well, I can’t define it on the basis on what you’re defining harmless error, Your Honor.

Hugo L. Black:

Just because you say that any violation of a constitutional right without regard to its significant indication, that’s what I’m trying to get in.

With that regard to which significant in a case has to be held harmful.

Morris Lavine:

It does not — it cannot be —

Hugo L. Black:

It has to be held harmful.

Morris Lavine:

Harmful, I —

Hugo L. Black:

It cannot be held harmful.

Morris Lavine:

May I answer Your Honor in the language of Bollenbach case and to state my position?

Hugo L. Black:

I thought that you wouldn’t answer it.

You’ve just got to answer from reading what somebody said.

I don’t care the evidence.

Morris Lavine:

Well, I do but I want to answer your —

Hugo L. Black:

You don’t have to argue —

Morris Lavine:

Well, my argument is that error of a constitutional proportion I have to argue with you on this point Justice Black because I can’t —

Hugo L. Black:

You don’t have to argue with me at all.

I just want to find out if that’s what you’re arguing.

Morris Lavine:

I’m arguing that errors of a constitutional proportion cannot be slight, trifling or infinite testable or de minimis lex that argue — that errors of a — for instance denial of the right of counsel is a constitutional right.

We can’t say that the mere fact that one who doesn’t have counsel is so slight if he has —

Hugo L. Black:

But it’s not this case?

Morris Lavine:

That’s not this case but I’m citing various constitutional principles.

Morris Lavine:

I am saying I cannot see any case where a defendant refuses to testify on constitutional ground can be a slight error where he stands on the Fifth Amendment and the Fourteenth Amendment.

I say that —

Hugo L. Black:

Well, I’m not joining issue with you, I just trying to see if that what you’re arguing.

Morris Lavine:

I’m can’t see — I’m not arguing that Your Honor.

I’m arguing —

Hugo L. Black:

You are not arguing.

Morris Lavine:

I’m arguing that error of a constitutional side can never be so slight or trifling.

Hugo L. Black:

That’s what I thought you said.

Morris Lavine:

Yes, that you can overlook it and I can’t find any case as I have found where this Court has held where there has been a constitutional violation that it is slight or trifling.

Now, I would like to —

William J. Brennan, Jr.:

That’s just another way of saying that if there’s constitutional error in the trial, it can never be harmless.

Morris Lavine:

That’s right.

William J. Brennan, Jr.:

There must be a reversal?

Morris Lavine:

That is right, Your Honor.

That’s my position.

Now, in Bollenbach versus United States back in 1945 a jury was out seven hours and the judge called the jury back in to give them another instruction.

This is 326 U.S. of page 607, the Court there after calling the jury back gave them further instructions which it was held it was erroneous.

The evidence apparently from the standpoint of the Government and possibly from the standpoint of the Court was regarded as the overwhelming, but in any event, this Court laid down what is my position here in respect to the situation as to what maybe called harmless error.

The Government argues that the sting of error is extracted because there was proof other than the erroneous presumption on the issue of Bollenbach’s participation and I’m skipping some things that would be along jump at guessing to be confident that the jury did not rely on the erroneous presumption.

The charge should not be misleading, legal presumptions involve settled conception to which not even judges always bring clear understandingly.

We cannot treat the manifest misdirection in the circumstances of this case as one of those technical errors which do not affect the substantial rights of the parties and must be disregarded.

All law is technical if viewed solely from the concern for punishing crime without hitting the mode which is accomplished, the technical errors against which Congress protected jury verdicts are of a kind which led some judges to trivialize law by giving all legal prescriptions equal potency, see Taft and so forth.

Deviations from formal correctness do not touch the substance of the standards by which guilt is determined in our Court and under these that Congress rendered harmless citing Bruno versus United States and Wyler versus United States presuming to often that all errors to be prejudicial the judicial pendulum need not swing to presume all errors to be harmless if only the appellate court is left in doubt without doubt that one who claims that correct due process is after all guilty.

In view of the place of importance, the trial by jury has in our bill of rights.

It is not to be supposed that Congress intended to substitute the belief of appellate judges in the guilt of an accused.

However, justifiably engendered by the dead record for ascertainment of guilt by a jury under appropriate judicial guidance however cumbersome that process may be and the judgment in that case was reversed.

Now, the Court there laid down the standard that I think is the standard that I’m urging on this Court in the question of harmless error.

Now, in Bruno versus United States, in 308 U.S. October term 1939, page 293, the Court there said a subsidiary question remains for determination.

It derives from the act of February 26, 1919 whereby appellate courts are on their duty in criminal as well as civil cases to regard that — disregard technical errors, defects or exceptions which do not affect the substantial right to the party.

Is this regard of the right which Congress came to Bruno an error?

Morris Lavine:

The commission of which we may disregard we hold not.

It would be idle to predetermine the scope of such remedial provisions of Section 391 by anticipating the myriad varieties of rulings made in trial in attempting to abstract include definitions of technical errors.

Suffice to this to indicate when every student behind the act of February 26, 1919 knows that act was intended to prevent matters concerned which mere etiquette of trials with the formalities and minutiae or procedure from touching the merits of a verdict of a different order of importance is the right of an accused to insist on the privilege which Congress has given him and to paraphrase that expression of a different order of importance is the right of an accused to insist on the privilege which the Constitution of the United States that has given to him.

To suggest — to the suggested benefits a defendant fails to take the stand not to have the attention of the jury directly to that effect, it suffices to say that however difficult it maybe to exercise enlightened self interest, the accused should be allowed to make his own choice when an Act of Congress authorizes him to choose and now I paraphrase that again and say that the Constitution of the United States has authorized him to choose and whether this urged that it is a psychologically impossibility not to have a presumption rights of the minds of jurors against an accused who fail to testify to sure the answer is that Congress legislated on the contrary assumption and not without support of experience.

It was for Congress to decide whether it was deemed legally sufficient what was psychologically futile.

Certainly, despite the vast accumulation of psychological data, we have not yet obtain that servitude about the human mind which would justify us in disregarding the will of Congress by dogmatic assumption that jurors have probably is — properly admonished either could nor would he, the destructions of the trial court that the failure of the accused to be a witness in his own cause shall not create any presumption against him.

And there, the Court held that if the accused asked for that instruction he should be given and they hold that that is a substantial question which ought to be presented.

Now, in the case of Wyler versus United States, Your Honors will recall that was a case involving the question of one or two witnesses in a perjury case and the Court there held that the two witness rule was still required, that case is reported in 323 U.S, at page 600 — reading from page 611.

It is argued that this error did not prejudice the defendant.

We cannot say that it did not.

The jury convicted without being instructed that more than the testimony with single witness was required to justify their verdict.

This was no mere technical error relating to the formalities and minutiae of trial.

This is what I am urging Justice Black in answer to your question that there maybe formalities in minutiae in connection with the trial that would be excused but if it was a constitutional violation as all of your cases we have held on this right of self-incrimination it is not the mere technical error.

We are not authorized to look at the printed record result conflicting evidence and reached the conclusion that the error was harmless because we think that the defendant was guilty that would be to substitute of our judgment or that of the jury.

And under our system of justice, juries alone have been entrusted with that responsibility and I may say the same as in the State of California under Article 1, Section 7 as it existed the time of this case defendant was entitled to a jury trial, had a jury trial.

It’s not for the appellate court or the Supreme Court of California or even this Court to substitute its judgment or the judgment of the trial jurors who see the witnesses and hear the witnesses nor are we compelled to conclude that this error was harmless because of actions of another case which they cited.

Now, that this case was decided on the basis of its own facts.

Now, one other case that Your Honors decided recently was the case of Stewart versus United States and reported in 366 U.S. at page 1.

In that case, the petitioner was tried three times in the federal court for murder.

The first two trials, he didn’t take the witness stand, the third trial he did and he was asked the question that he have not taken the witness stand on the earlier two trials.

Your Honor, Mr. Justice Black wrote the reversal in that case and held that that was not harmless error.

You held that it was error to ask that question which raised the question of the defendant not having taken the witness stand.

And so I submit to Your Honors that —

Hugo L. Black:

Was there any question of harmless error in this case?

Morris Lavine:

Yes.

Page 9 of the printed opinion, the Government’s final contention is that the use of error was prejudicial, the conviction should be allowed to stand on the theory that the error was not sufficiently prejudicial to warrant the granting of a mistrial and the defense made no request for cautionary instruction.

So, quoting your own language Justice Black —

Hugo L. Black:

What — what else was said?

Morris Lavine:

Well, what else, Your Honor?

Hugo L. Black:

What else was said?

Morris Lavine:

I’m quoting it Your Honor.

Hugo L. Black:

I know it but you stopped before you said it.

Morris Lavine:

Oh, I’m about to go on with the rest of the opinion as you reversed it.

Hugo L. Black:

Yes.

Morris Lavine:

Yes, Your Honor.

One answer to this argument is to be found in the Government’s own brief for in its argument regarding the possibility that the jury may not have been aware of the improper question.

The Government stresses the fact that the question was not emphasized by any reference to what in the instructions to the jury.

During the course of this argument, the Government expressly recognizes that the danger of the situation would’ve been increased by a cautionary instruction in that such of instruction would have again brought the jury’s attention to petitioner’s prior failure to testify.

Plainly, the defense was under no such, no obligation to take such a risk.

The motion for mistrial was entirely appropriate and indeed necessary to protect the interest of petitioner.

We, thus, conclude that this conviction and sentence against petitioner cannot stand.

In — in doing so, we agree with the point made by the Government in its brief that it is regrettable that the concurrent finding of 36 jurors are not sufficiently final to terminate a case but under our system a man is entitled to the finding of 12 jurors on evidence fairly and properly presented to them.

Petitioner may not be deprived his right until that right is accorded him.

That right was denied here by the prosecutor’s improper question.

So, I submit here —

Hugo L. Black:

That case indicated, did it not?

We didn’t think it whether it’s harmless — that we didn’t make error was harmless.

Morris Lavine:

That — that is correct, Your Honor.

And Your Honor, there’s been no error — no case as I —

Hugo L. Black:

Why should we have argued it anyway if it’s settled in the fact that the error was made?

Why should we have argued to show?

Why it was — couldn’t be held harmless?

Morris Lavine:

Well, if Your Honor please, that was one of the points that the Government raised in the case.

You should, it had to be argued because Your Honors granted certiorari —

Hugo L. Black:

— defended however and you further than to say that it happened.

Morris Lavine:

That is correct.

Now, if Your Honor pleases, I haven’t been able to find any case in this Court where Your Honor has pointed to any case or where any decision existed I have been able to find in this Court where there’s been a violation of a constitutional proportion where this Court has held that that is harmless error.

I have cited about seven cases in my brief involving particularly confessions and other constitutional violation.

But I have been unable to find any of which says that the failure that there’s any situation which — in which the right of self-incrimination has been brought in that is to have this Court has held to be harmless and the cases I have cited, I think are in support of that position.

I take the position that the harmless error rule was not meant to overlook violations of constitutional magnitude and I think that in this case looking at this record and the numerous comments by the prosecutor as planning the lack of proof that the state have with the comments of the prosecutor constituted the error highly prejudicial and certainly not harmless in this case.

Morris Lavine:

So, my argument is two-fold.

First, that any violation of Griffin, any violation of failure to take the comment on the failure of a defendant take the witness stand is itself error that requires that it’s a constitutional magnitude and therefore does not come within the harmless error rule but if it does, the repeated and constant comments on this case make the error of such magnitude that it is not harmless in this case and it’s very highly prejudicial.

Earl Warren:

Did the judge instruct the jury on this issue?

Morris Lavine:

Yes, he did Your Honor.

Earl Warren:

What did he say?

Morris Lavine:

Well, he instructed in the language of the Adamson case, Your Honor.

Your Honor, the page — it’s referred to in page 17 of my closing brief and it’s referred to in reporter’s transcript page 2163 that among the inferences that may reasonably be drawn there from those unfavorable to the defendant are the more probable.

Now, that’s the abbreviation of the entire instruction Your Honor but the instruction is in the language of the prior Adamson case which is the one with collegiate standard previously standard instructions prior to the Adamson case.

And I will possibly look it up during the argument of my opponent to give you the full text of it.

Thank you.

Arlo E. Smith:

How much time do I have left Your Honor?

Earl Warren:

Mr. Smith.

Arlo E. Smith:

Mr. Chief Justice, may it please the Court.

Of course, to properly concede that there was a comment and instruction that comment with reference to both defendants was in violation of the Griffin doctrine.

However, before I go into the matter any detail, I feel that in light of the statements made here except the statement of counsel the tracking of earlier statement.

I feel that we have a 3000-page record here.

The brief is replete with allegations of unfairness and I would like to correct two or three impressions created by that brief.

As pointed out by counsel, he is correct of the impression that the district attorney here and the trial judge deliberately violated the doctrine of the law in Griffin.

This case was tried in 1963, one year before the Malloy decision came down and two years before the decision of this Court in Griffin versus California.

Those comments as suggested in the Tehan case occurred in virtually every California case where the defendant did not take the witness stand.

This is one of those cases.

Those statements were made and the instruction was given based upon 50 years of constitutional law set down in Twine and in Adamson of the decisions of this Court.

Trial judge and the counsel followed the constitution of California at that time.

Secondly, counsel has suggested that somehow there has been a conspiracy or a fraud down the part of the district attorney here to prevent the defendant Chapman from taking the witness stand.

Abe Fortas:

Excuse me sir for a moment.

Excuse me.

Arlo E. Smith:

Yes.

Abe Fortas:

On your first part of view has — do you suggest in practice in the California has changed?

Arlo E. Smith:

Oh, absolutely.

If this happened today, we will have entirely different case.

Arlo E. Smith:

I suggest it would not be here.

Abe Fortas:

What would you do today?

Arlo E. Smith:

Today, Your Honor, I — there would be no comment.

Obviously that practice is eliminated.

There would normally be an instruction akin to that required in federal practice.

Abe Fortas:

In other words, you would follow —

Arlo E. Smith:

And if this happen today, I think that under California practice we would have a — the case would not be here.

Not because there was no harm but before a different state policy that under the case that you’ve cited here, the case of People versus Burnett that deliberate and flagrant conduct of both that trial counsel, the district attorney and the judge would be misconduct and would be reversed.

Abe Fortas:

So I suppose that what you got here in terms of a liable question general applicability is what like this case throws on your use of the harmless error provision in the constitution.

Arlo E. Smith:

Well, the harmless —

Suppose what you are arguing here if I understand it, there’s no evidence in this record if the California courts were using their harmless error rule to avoid or frustrate the federal constitutional right, isn’t that what you’re arguing?

Arlo E. Smith:

But — yes, I wish to make that argument.

I was simply arguing that this point that there was no misconduct that but that is an argument that I do seek to pursue, the allegation has been made here that indeed the harmless error rule has been applied deliberately by the California courts to avoid the operation of Griffin.

We have cited in our briefs cases where the District Courts of Appeal or intermediate appellate courts in fact have affirmed convictions where commenting in violation of Griffin occur.

Likewise, we have brought to your attention some dozen cases where the California Courts have reversed those convictions because it found the comment in the context of the entire case to be a miscarriage of justice, to be a — to be prejudicial, to be harmful to violate our harmless error rule.

Likewise, the California Supreme Court has granted here in cases where the intermediate appellate courts have found the comment to be harmless and affirmed.

So, in fact there was no deliberate use of the harmful error rule to undercut the decisions of this Court.

But returning, if I may, to the general allegation that’s been made here in reference to the conspiracy to keep the defendant Chapman on the stand the allegations that somehow the — she was denied counsel.

There was a denial of the speedy trial.

Let me correct that record before we discuss the real questions here.

Under California practice, award was based upon a complaint.

Mrs. Chapman was arrested in St. Joseph, Missouri October 26, 1962.

She was brought back to California, the record shows and we cited it, October 30, 1962.

The record reflects that she was arraigned in California the very next day, October 31 or she was advised of her right to counsel of all the rights.

A counsel was then appointed, immediately appointed.

Not a month later as suggested by counsel.

And the same sequence occurred in reference to the defendant Teale when he was brought back from Louisiana and of course after the initial arraignment instead of proceeding.

By way of information, that case was brought to the grand jury and the indictment was then brought.

The defendants were re-arraigned on November 16, counsel was again appointed to defend them in that indictment, the very same counsel that had been appointed on the earlier dates.

Finally, there’s an allegation here that the defendant — that the prosecutor here kept the defendant Chapman from taking the stand by virtue of the delays, by virtue of — this was part of his tactic.

Arlo E. Smith:

But I think that if you examine this record you will see very plainly that the trial dates, the times and the trial dates were agreed to by her counsel that it was suggested shortly before the first trial date that there was a conflict that the public between the two defendants and the public defendant could not properly represent both.

The Court immediately appointed separate counsel for Mrs. Chapman.

Shortly thereafter and a new trial date was again selected about a month forward, the defendant Chapman filed an affidavit alleging in demanding in support of a motion for a separate trial alleging that the public defender had special knowledge which could be used in cross examining her.

The judge then denied the motion for a separate trial and appointed new counsel for the defendant Teale.

The matter was then delayed for another month in order that that counsel could properly prepare and defend the case.

Finally, there’s an allegation that somehow made here again in argument that the prosecutor sought to get her statement which she said — he said was taken without counsel.

The record reflects in fact that what he is referring to appears to be statement which the defendant introduced via the testimony of a psychiatrist and I think important to this entire case is the defense and this goes to the defense of Mrs. Chapman.

Mrs. Chapman’s defense was from the very outset in this case that she was present in all times, that she did not, however, have the specific intent.

Now, the — in California or practices for the prosecutor to make an opening statement present his testimony, the defense counsel to make his opening statement and to present his testimony.

However, in this case, after the prosecutor had made his opening statement, defense counsel requested opportunity to make his opening statement out of term and the judge granted that.

He then stated as his defense in fact in admission of her presence at the scene of the robbery, that kidnapping and the murder.

The defense then established through that the psychiatrist not Dr. Winkler but Dr. Sherman, the defense psychiatrist that she did not or possibly had a hysterical alcoholic blackout, disassociated status the psychiatrist say that she could not formulate the specific intent to commit these crimes but as a part of that basis for the psychiatrist’s opinion, the psychiatrist testifies both as to what she had told them and over objection by the prosecution.

Defense counsel read a statement which she gave or read great portions of the statement which he had previously given to the deputy district attorney.

There is no foundation.

The statement was at no time offered by the prosecution.

There is nothing in the record as to the background for the taking of the statement.

Byron R. White:

But what the —

Arlo E. Smith:

Doctor Winkler was called — well, there’s an allegation here that this was a conspiracy and that in fact there’s a ball of statement made that the calling of Dr. Winkler and the presenting of his testimony violates Griffin.

Dr. Winkler was simply called then in rebuttal.

And further I think it is important of course in any event that we must examine the entire record, the entire case and not merely as counsel for petitioner has asserted that we look at the — only at the statements made here, the instruction given or the comment made and determined from that whether or not there was harm.

Abe Fortas:

Why do you say that we look at the whole case is that because your theory that the record as a whole contains proof of guilt that the error was harmless?

Arlo E. Smith:

No, Your Honor.

That is not what the (Voice Overlap) —

Abe Fortas:

What is your theory?

Arlo E. Smith:

That is not the rule in California.

You must examine the entire cause.

You must look at the error in the context of the entire cause.

Abe Fortas:

What purpose then?

Arlo E. Smith:

To determine whether or not there was harm to this particular defense.

Abe Fortas:

And what’s your standard determine whether there is harm, is that whether they — in our judgment the defendant was guilty or whether excluding this or that may mean rest of the record shows overwhelming evidence of guilt and we can’t conceive the jury arriving at different result or what?

Arlo E. Smith:

No.

The California constitution speaks in terms of examination of the entire record to determine whether or not there was a miscarriage of justice.

However, the California Supreme Court in the case of People versus Watson, set down the rule that what this means is that we must determine whether or not it is reasonably probable that the errors complained of would not have led to a different result.

Byron R. White:

Well, why do you suppose the — if the evidence is so clear of guilt in these cases and why do you suppose the prosecutor thinks he has to comment?

Statute doesn’t require him to do it.

Arlo E. Smith:

Well, I think that the answer is —

Byron R. White:

And here — he just says well, it’s overwhelming evidence but I’ll just show you a few comments that it lays here.

Arlo E. Smith:

Well, if this Court suggested in Tehan, this can correct me so that this has happened virtually in every case.

It becomes a courtroom dramatics.

It’s the dramatic impact that here we’ve established —

Byron R. White:

Well, I don’t know, why do you think prosecutor is really — is going to hurt that case they wouldn’t do it it’s because —

Arlo E. Smith:

Of course.

Of course it doesn’t hurt that case and there’s no — it doesn’t know in that sense.

Byron R. White:

They wouldn’t do it just neutrally, would they?

Arlo E. Smith:

They might although I suggest that they — that you’re correct that they believe that it has some effect —

Byron R. White:

So, do you think it’s going to help them a little bit?

Arlo E. Smith:

Certainly.

Certainly, but that does not mean that in fact that helps me if they need it on the case.

Byron R. White:

We know better than the prosecutor.

Arlo E. Smith:

Yes, you — many your opinion suggests that you do.

Byron R. White:

And you’re right.

Hugo L. Black:

Now, I would like you to —

Arlo E. Smith:

I would now like —

Hugo L. Black:

— to get to the merits —

Arlo E. Smith:

Yes, I’d like to turn to the —

Hugo L. Black:

May I just ask you this one question?

Arlo E. Smith:

Yes.

Hugo L. Black:

If what he read, did that take place?

Arlo E. Smith:

Oh, yes.

Hugo L. Black:

Took place thus that way?

Arlo E. Smith:

Well, I did not follow the —

Hugo L. Black:

Where in fact it told, the prosecutor told jury that she had view to testify and she is the only one could and they had a right to find out that from that she was guilty.

Arlo E. Smith:

No, but the —

Hugo L. Black:

If that is something who it was, didn’t he?

Arlo E. Smith:

I would make this distinction that the —

Hugo L. Black:

I would tell you —

Arlo E. Smith:

The statement made —

Hugo L. Black:

— what is your reason for saying that that was harmless?

Arlo E. Smith:

Our reason for saying —

Hugo L. Black:

I would like to say what that Mr. Justice Fortas said.

What is it?

Do you say that if that happened, I would think for any reasonable person to know that was harmless to the defendant then what do you say then to keep it from being harmless?

Arlo E. Smith:

No, I say that two things.

First of all, of course the judge did instruct them and that this is an influence —

Hugo L. Black:

Did he instruct —

Arlo E. Smith:

That there was —

Hugo L. Black:

— but hard, isn’t it?

Arlo E. Smith:

Pe — that the people must prove their case beyond the reasonable doubt that there was no presumption of guilt as a result of the failure of the defendants to testify.

As far as in the second part of it, of course it is our contention you must examine the particular error in the light of everything that happened here.

In other words, the point that I was making I need not repeat now earlier was that here we have this particular defense of the defendant Chapman for example.

Really, the defense was that she blocked out, not that she wasn’t there —

Hugo L. Black:

Suppose that was the defense, but why and how can you say it was harmless error for all the case to decide on the basis that the jury had a right to infer her guilt from the facts that she didn’t tell about it.

Arlo E. Smith:

No, there was nothing — you cannot infer her guilt.

You can simply, in a given set of circumstances where the defendant might have had some information, the jury where they can draw private different inferences may take the inference against that particular — that defendant who did not testify but as to a particular item of proof and not that you can infer her guilt.

Hugo L. Black:

They violated the Griffin case, didn’t they?

Arlo E. Smith:

Oh, yes.

But and not that you can infer her guilt, not that you — that it’s proof of presumption of guilt but simply has related to a particular —

Hugo L. Black:

Very strong mail in the time the —

Arlo E. Smith:

Piece of evidence.

As I said here, with the defense really is block out, the fact that the prosecutor commented that she could explain why she purchased those guns —

Hugo L. Black:

Probably, she couldn’t.

Arlo E. Smith:

Certainly —

Hugo L. Black:

But she had a right not to.

Arlo E. Smith:

But this — certainly she had a right not to but this didn’t have anything to do with the —

Hugo L. Black:

How do you make that harmless error?

Arlo E. Smith:

How do I make that harmless error?

Hugo L. Black:

That’s right.

Arlo E. Smith:

The — I examine the entire record and see what effect this has.

Hugo L. Black:

Whether she is guilty?

Arlo E. Smith:

That’s not the mere test.

No.

Not simply that she’s guilty but whether or not whether she reasonably probable that the error complained of would have brought about the different result.

Hugo L. Black:

Brought about finding of guilty?

Arlo E. Smith:

Well, it’s not simply weighing of — it’s not simply the weighing of evidence of guilt but if in fact that error assisted in bringing about that verdict to that result.

Hugo L. Black:

But are you arguing that didn’t assist in bringing about the verdict of guilty?

Arlo E. Smith:

I’m suggesting that it did not — not reasonably probable that it had any.

I’m arguing that there is no reasonable probability that it affected the trial in light of the entire evidence in this case, in light of the entire proceeding for defense —

Hugo L. Black:

Had no influence on the jurors.

Arlo E. Smith:

Well, of course that bring us back to another argument and it is been suggested in the dissents in the earlier cases that there is some question as to the influence of the jury.

The fact that she did not testify and he did not testify is a fact that the jury is aware of that they’re going to draw their own conclusions and the fact that we have carefully controlled —

Hugo L. Black:

So that I can add the constitutional guarantee is no good.

Arlo E. Smith:

Well, of course this goes back to the policies behind Griffin that then I can see but this is simply a fact that the jury is well aware of, one which they may naturally whether instructed or uninstructed where the comment is made or not are going to have in their mind or practice specifically instructs them how they must limit that fact that they can draw no presumption of guilt, that they — that the people have the burden of proof beyond the reasonable doubt.

Now, the counsel here for the petitioner draws an analogy to confession cases.

They say that those cases established that you must reverse in this kind of a situation.

But I think this leads us to in to the very problem that we’re concerned with and that is, what is the impact of these statements as opposed to the impact of a confession.

This Court has held many times that confessions are — when introduced result in reversal has a result of the pervasive impact that it has and secondly because it impairs the very fairness of the fact finding procedure, the fairness of the trial the very reliability of the fact finding procedure.

Now, the Court — this Court, the Tehan case stated that the comment did not in fact impair the fairness of the trial, the reliability of the fact finding process and I think that —

Hugo L. Black:

Has this got any evidence regarding (Inaudible) it was unconstitutional?

Arlo E. Smith:

Well, there’s no — they didn’t get any evidence but there’s no question that was done here was in violation of the Griffin rule.

No question about that.

Arlo E. Smith:

But as you said in Tehan, determine the question of retroactivity this did not impair the reliability of the fact finding processes the trial court.

It’s our contention that the same kind of analogy can and must be draw in determining whether a particular constitutional defect is to be subjected to the harmless error rule.

It’s our contention that harmless error rule is applicable to all errors constitutional or not except those errors that impair the fairness of the trial that go to the reliability of the fact finding processes.

Potter Stewart:

If you’re correct that there is room for a higher harmless error rule in respect to at least some constitutional errors, doesn’t necessarily follow that each state should be free to apply its own version of its harmless error rule or should be — or should that — should the standard be a federal standard?

Arlo E. Smith:

Well, we take the position that this is a question of state law and not a constitutional law.

We take the position that you must examine the policies of the rule that the reason for the rule and that this is an area where federalism properly has applied that the question of whether or not it is harmful is not a federal question —

Potter Stewart:

Well, let’s say —

Arlo E. Smith:

— except it we take the case like Louisville versus Thompson.

Potter Stewart:

Well, I’m not talking about but I was talking about the other side of the coin at least in a theoretical case.

Let say that a state said, “Well, in this state our harmless error rule is that we think the man could possibly have been found guilty without the introduction of this evidence.

We all rule that its introduction was harmless error.”

But we in the — if the error were one of the federal constitutional and connections that we be bound by that kind of a harmless error rule assuming there is room for harmless error rule at all?

Arlo E. Smith:

Well, as long as the — it’s our position that is long as the state standard, the state rule protects what we call fairness that to say, protects those rights that ensure of fair trial those rights that are related to the reliability of the fact finding process that that states must reverse but as to any other error then it can properly apply its own standard as a question of state law and again except in a extreme case where there’s no reasonable relationship between the application of that rule to the facts of that case.

Abe Fortas:

What happened that day —

Arlo E. Smith:

The harm involved —

Abe Fortas:

Suppose one of your prosecutors and one of the judges made a mistake and made the same comments, would you still think that California would consider their harmless error?

Arlo E. Smith:

No, Your Honor.

If that case — this case were tried yesterday and were then presented in the California Supreme Court today, it would be reversed —

Abe Fortas:

But why?

Why if there was harmless error —

Arlo E. Smith:

It would be —

Abe Fortas:

— if there was harmless error before why isn’t there harmless error now?

Arlo E. Smith:

Because under California law, there are other factors because if these were done today, it would not be merely a violation of the Griffin doctrine.

It would be deliberate flagrant misconduct.

Abe Fortas:

So you say —

Arlo E. Smith:

The trial judge in the prosecutor and under Burnett would be reversed.

Abe Fortas:

Those words disturbed me but suppose exactly the same thing happens based on the question of (Voice Overlap) harmless error, doesn’t the harmless error today was harmless error then or vice versa?

Arlo E. Smith:

But what I’m saying is that the — there as a matter of state policy we are looking — we’re looking beyond harm really.

Earl Warren:

We’ll recess now, Mr. Smith.