County Court of Ulster County v. Allen

PETITIONER:County Court of Ulster County
RESPONDENT:Allen
LOCATION:United States District Court for the District of Columbia

DOCKET NO.: 77-1554
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 442 US 140 (1979)
ARGUED: Feb 22, 1979
DECIDED: Jun 04, 1979

ADVOCATES:
Eileen Shapiro – for petitioners
Eileen F. Shapiro
Michael Young – for respondents

Facts of the case

Question

Audio Transcription for Oral Argument – February 22, 1979 in County Court of Ulster County v. Allen

Warren E. Burger:

We’ll hear arguments next in County Court of Ulster against Allen.

Eileen F. Shapiro:

Mr. Chief Justice, and may it please the Court.

Warren E. Burger:

Ms. Shapiro?

Eileen F. Shapiro:

Yes sir.

This habeas corpus proceeding presents two issues.

The first issue is waiver and the second is the constitutionality of the New York State evidentiary presumption, which provides with certain exceptions, that presence in an automobile of any of the weapons enumerated in the statute is presumptive evidence of its possession by all persons occupying the automobile at the time that the weapon is found.

The threshold question here is whether respondents have preserved the question of the statute’s constitutionality or habeas corpus review, considering that respondents failed to object at trail to a jury instruction, which only partially explained the statute and again failed to object either at trail or on their state appeals to the constitutionality of the statute itself.

A consideration of both the facts of this case and the applicable law compelled to finding that respondents have indeed failed to preserve any substitutive constitutional claim for collateral review.

The facts in this case are not in dispute.

The respondents and a 16 year-old girl, who was later adjudicated as a youthful offender, and was therein after referred to as Jane Doe, were riding in a car on the New York State Thruway in upstate Ulster County, when they were stopped for speeding through work zone.

The driver, respondent Lemmons, produced a license and a registration.

A radio check was made and it was determined that he was wanted on a Michigan fugitive warrant.

He was arrested.

One of the policemen, one trooper Askew returned to the vehicle, looked in through the right front passenger window and detected protruding from a ladies handbag, Jane Doe’s handbag, on the floor of the front seat of the car, a .45 automatic pistol.

Potter Stewart:

Is it clear that it was Jane Doe’s handbag?

Eileen F. Shapiro:

Yes Your Honor, it is clear, there is no dispute.

He reached in, removed that gun, which turned out to be fully loaded, I believe with modified hollow point bullets and found underneath that gun a second gun, a .38 Smith & Wesson revolver, also fully loaded.

The officer placed all three of the remaining occupants of the car under arrest and then attempted to enter the trunk of the car.

The trunk key was not recovered on any of the respondents, it was not in the car and so when the car was returned to the barracks, the trunk was pried open and the police found therein a pound-and-a-half of heroin and a .45 caliber spitfire machine gun, also loaded with 27 rounds of ammunition.

All four of the passengers were indicted on three counts of felonious weapons possession and one count of narcotics possession, a charge which in New York at that time bore a potential life sentence.

They — as the record clearly shows, all the parties, the respondents and Jane Doe noted a cooperative defense although they were individually represented by counsel.

In particular, respondents directed their aspect of the defense toward rebutting the articles in the trunk of the car, the heroin count and the machine gun count and Doe’s counsel Mr. Goldberg, who parenthetically is representing respondents in this proceeding, directed his attention toward the handguns in the car.

Potter Stewart:

Well, I thought that Jane Doe was tried in a juvenile proceeding of some kind?

Eileen F. Shapiro:

No, she was tried jointly.

Potter Stewart:

As a co-defendant in this proceeding?

Eileen F. Shapiro:

As a co-defendant and it was not until sentencing that the trial judge set aside her conviction, adjudicated her a youthful offender.

Potter Stewart:

So there were four co-defendants in this case?

Eileen F. Shapiro:

Absolutely, yes.

At the course of the people’s case, the respondents and Jane Doe made a routine pro forma motion to dismiss, which in New York is rarely granted as jeopardy may often attach, should the motion be erroneously granted and then on appeal it cannot be reversed.

The respondents’ motion in particular was directed toward the fact that as the handguns were in Jane Doe’s handbag, they were on her person under the meaning of the statutory presumption at issue and thus they could not be held responsible.

Eileen F. Shapiro:

The trial court agreeing with the District’s attorney found that the location of the guns, since they were not actually in Jane Doe’s pocket or whatever, was presented in fact of the jury and thus he denied their motion.

In fact, respondents Hardrick and Allen even appear to concede in that motion, which is reproduced on page 17 of the Appendix, then in fact, the judge may have been right that it is a question of fact.

At the close of the entire case all counsels adjoined in moving to dismiss the machine gun and heroin charges against Jane Doe.

In other words, Jane Doe’s lawyer made the motion and counsel for the three respondents piped up and said, yes Your Honor, we think you ought to grant Jane Doe’s motion.

At summation, Doe’s lawyer placed great emphasis on the large caliber of the handguns, the weight of the guns, which amount to approximately 6 pounds, the size of the guns and in particular the position of the guns in the handbag, they were positioned crosswise so as to keep the handbag open.

To support his position that the respondents tossed the guns in the bag at the time that the car — either at the time the car was flagged down by the police or in the interval when the driver was being arrested.

Respondents Allen and Hardrick on the other hand placed great emphasis on the absent trunk key and the fact that the car had been borrowed that very morning from respondent Lemmon’s brother in Rochester, New York, approximately 250 miles away from the site of the arrest.

And then in unmistakable language in their submission, these respondents Allen and Hardrick virtually conceded their guilt on the handgun charges.

Warren E. Burger:

They conceded what?

Eileen F. Shapiro:

They are guilt on the handgun charges.

Warren E. Burger:

In the arguments, you are telling us.

Eileen F. Shapiro:

Pardon me.

Warren E. Burger:

In their final arguments?

Eileen F. Shapiro:

In their submission and I have the quote from the submission, which —

Warren E. Burger:

The page you are referring to on the appendix is?

Eileen F. Shapiro:

Page 21 to 22, which also appears on page 654 of the transcript.

This is what Mr. Toraka, counsel for Allen and Hardrick said to the jury.

If you are living under their times and conditions and you travel from a big city, Detroit, to a bigger city, New York City, it is not unusual for people to carry guns, small-arms to protect themselves, is it?

There are places in New York City policemen fear to go, which you have got to understand you are sitting here as jurors, these are people live flesh and blood the same as you, different motives, different objectives.

And he went on to say that small arms were in the pocket-book, it is true, the question is who do they belong to?

If you think that Hardrick and Allen had exercised dominion control over the weapons in the purse and follow the law as the judge gives it to you on the presumption of what was in the purse as to all 4 or 3 or 2 or 1 and I think that this cannot be mistaken as anything other than a concession on those charges.

After summations the Judge charged the juror —

John Paul Stevens:

I may be dumb today, but I do not understand why that is a concession?

Eileen F. Shapiro:

Pardon me?

John Paul Stevens:

You have to explain a little more to me, why is that a concession, I do not know, there is a concession that they were in the car?

Eileen F. Shapiro:

No, it is concession that they, Allen and Hardrick brought the guns from Detroit where they were coming from to take to New York City.

John Paul Stevens:

I meant the part what you read, you say it is on page 17 of the appendix?

Potter Stewart:

21.

John Paul Stevens:

21.

Eileen F. Shapiro:

No, I am sorry.

Eileen F. Shapiro:

21 and 22 of the appendix.

John Paul Stevens:

Oh, I am sorry.

I misunderstood you.

Potter Stewart:

Well, the guns were concededly found in the car?

Eileen F. Shapiro:

Yes Your Honor.

Potter Stewart:

And the car was on a trip from Detroit to New York City, that is, he conceded no more than that, did he?

Then they acknowledged facts?

Eileen F. Shapiro:

I believe he conceded more than that.

He said, look at these two fellows, they are going to New York City where they are afraid of crime and they are bringing these guns with them, what is wrong with that?

But he did not say, why are you charging me or Allen and Hardrick with the pistol charges, when Jane Doe had the guns in her bag and they are really Jane Doe’s guns.

Potter Stewart:

Well, if you look on 22, he made that point, but I notice had denied it?

Warren E. Burger:

Well, he is surely on 22 (a), it is in the fifth and sixth lines, fourth, fifth and sixth lines, sounds as though he is waiving any question about the validity of the statute, where he says, if you think that Hardrick and Allen exercised dominion control over the weapons in the purse, then follow of the law as the judge gives it to you on the presumption of what was in the purse is as to all four or three or two or one.

Eileen F. Shapiro:

It would seem to me at the very least —

Warren E. Burger:

Do you think that was his failure to make objection?

Eileen F. Shapiro:

Yeah, I certainly do, I certainly feel that at the very least that quotation indicates that —

Warren E. Burger:

That would perhaps explain why he did not object to the instructions?

Eileen F. Shapiro:

I have some theories in that regard as to why, I think that he may not have objected or why none of the respondents did object to the presumption?

William H. Rehnquist:

Because in theory Ms. Shapiro, I do not know what the procedural practice is in New York, but if a trial judge tells you after you have objected that I am going to charge on the presumption, you do not go to the jury and tell them that this presumption is all bad and the judge may tell you, it is alright, but I do not believe that.

You follow the law as the judge gives it to the jury in your argument of the jury; you are bound pretty much by the judges’ variation of the law.

Eileen F. Shapiro:

Absolutely, but at this point, the jury had not yet been charged.

Warren E. Burger:

He was anticipating that.

Eileen F. Shapiro:

He was anticipating charge and you would think anticipating the charge, he would also be anticipating the full charge, since he was quite aware that beyond the person presumption was included in the statute and his early motion indicated to some degree that he felt that his defendants were entitled to that charge.

Warren E. Burger:

Well, of course, Mr. Justice Rehnquist is entirely correct that the lawyer in his summation cannot argue is what the judge is later going to say in the charge, cannot properly do so without being guilty of some misconduct.

Eileen F. Shapiro:

I would not think that.

Warren E. Burger:

It would appear here that he was reading the statute just as the prosecution was reading it, when you couple that with the fact that he made no objection to the charge.

Eileen F. Shapiro:

Yes, I would think so.

And he certainly made no constitutional objection even in the earlier motion to dismiss and —

William H. Rehnquist:

Now the Court of Appeals’ opinion in the habeas case, Second Circuit opinion does cite passages from briefs but as I read Judge Jason’s opinion for the majority of the New York Court of Appeals that does not pass on any constitutional question, does it?

Eileen F. Shapiro:

What Judge Jason appeared to do or what it seemed apparent is that he did not view a constitutional question as having properly been raised and I think that if you read the full text respondents’ briefs 2 or 3 quotes, they were essentially the same brief and it is repeated throughout the joint appendix, I think you will see that, Your Honor will see that what — the claim they were making essentially is that not that the statute was unconstitutional but that the failure to grant them the benefit of the exception was the unconstitutional aspect and clearly they had waived that by their earlier failure to object to the charge.

Byron R. White:

But why was there ever exhaustion of the statement remidies here?

Eileen F. Shapiro:

Pardon me?

Byron R. White:

Do you contend that there was no exhaustion of statement remedies here?

Eileen F. Shapiro:

We contended that early in the habeas proceedings, the state did contend it, but —

Byron R. White:

But have you abandoned that claim now?

Eileen F. Shapiro:

It appears that the waiver, which we argue would bar collateral review in this Court, would bar collateral review in the state court in the state habeas corpus proceeding as well.

The only state remedy open to him.

Byron R. White:

Yeah, but this question was never presented in the state courts?

Has the Federal’s habeas statute been satisfied?

Eileen F. Shapiro:

Well, I think there is a question at this stage in proceeding to require the respondents to go back through a state habeas proceeding, considering that —

Byron R. White:

Is that one of the questions you have raised here?

Eileen F. Shapiro:

No, I have not Your Honor.

I have not raised exhaustion, you know in my petition of the certiorari, none of the questions.

Byron R. White:

Is the state in position to waive that, this federal statutory requirement, may a state waive that?

Eileen F. Shapiro:

The Second Circuit does not seem to think so but —

Byron R. White:

I beg your pardon.

Eileen F. Shapiro:

We are not waiving it.

I think what I do — I view it as in this case a futile exercise and I do not think —

Byron R. White:

What is a futile exercise?

Eileen F. Shapiro:

To ask these respondents to return and go through a state habeas proceeding, since their state direct appeal is completed.

The only method, the only state procedure they could pursue would be a state habeas.

Byron R. White:

How do you know what the Court of Appeals would decide on this question if it was never presented to them?

Eileen F. Shapiro:

On the facial constitutionality statute?

Potter Stewart:

On the direct appeal.

Byron R. White:

On the direct appeal.

If you say if the Court of Appeals of the State of New York did not pass on this question, if it was never presented to them, how do you know how they would decide it?

Eileen F. Shapiro:

I do not know how they would decide Your Honor.

Byron R. White:

Well, then what do you mean it is a futile exercise to go back to the state courts?

Eileen F. Shapiro:

It is our point that in effect they waived their right and the state court to even raise the constitutionality of the presumption.

William J. Brennan, Jr.:

Are you saying that not having raised it on direct review, your state courts would not entertain it on state habeas.

Is that what you are telling us?

Eileen F. Shapiro:

Yes Your Honor.

Potter Stewart:

Exactly.

Warren E. Burger:

Then why should we entertain it here, that is the next question?

Eileen F. Shapiro:

That is the point, it goes around in a circle.

Potter Stewart:

Alright but in answer to just my brothers White and Brennan you pointed out, you do not raise the exhaustion point here because of the well-settled rule that exhaustion is satisfied if there can be a showing that a further pursuit of the question of the state courts would be futile.

Eileen F. Shapiro:

Yes, that is true, that is our position.

Potter Stewart:

But that still does not answer the question of the direct appeal and your claim that it was not even presented in the direct appeal and that therefore the New York Court of Appeals was not asked to rule on the constitutional questions.

Eileen F. Shapiro:

Well, what I think the New York courts did is that they found that the respondents by failing to object to the charge, which in that case incorrectly embodied the statutory presumption, has thereafter any waived any claims flowing from that failure.

Byron R. White:

Are you suggesting to me that, maybe you are quite right that the person who is convicted in a state trial court can completely abandon his appeal in the state system and come directly into Federal habeas?

Eileen F. Shapiro:

No Your Honor.

I have never said that at all but once — you cannot appeal through the state system, a claim that you have not presented at the trial.

Byron R. White:

Alright, so let us assume a person is convicted in a New York trial court, he just does not appeal and then he goes to state habeas, he will be thrown out.

Eileen F. Shapiro:

Yes Your Honor, he will.

Byron R. White:

Can he then come to this Federal habeas?

Eileen F. Shapiro:

No Your Honor.

Byron R. White:

Well, why is not that this case?

Eileen F. Shapiro:

He has waived his state direct appeal.

Byron R. White:

So in this case, what about this particular question in about the facial constitutionality of this presumption if – let us assume it was never presented to the Court of Appeals of New York, although it could have been and it was not and it was not decided by them and it may not be available in state habeas, but is it available in Federal habeas?

Eileen F. Shapiro:

No Your Honor.

Byron R. White:

Wasn’t that this case?

Eileen F. Shapiro:

No, what the New York – what I believe the New York Court of Appeals did and of course the opinion is subject to some interpretation is that it held that having waived the objection to the jury charge, which was the embodiment of the statutory presumption, the respondents waived all claims flowing from that waiver including the facial claim, he has applied claim and the state will claim.

Thurgood Marshall:

And that is now [Indiscernible]

Eileen F. Shapiro:

Yes.

Respondents — I have just discussed the New York Court of Appeals’ opinion.

I would like to say that at no stage in the federal or state proceedings, did the respondents give a reason for their failure to object.

In fact, it is not until their brief to this Court that they suggest for the first time that the reason might be inadvertence.

However, I would like to say that far being inadvertence, the record below lies in inadvertence.

The record shows that the respondents knew the presumption would be charged, expected it to be charged, that they had a specific strategy and the specific strategy they had was to deflect pressure away from Jane Doe on the handgun charges, so that Jane Doe, a 16-year-old with no prior record and everything to gain and virtually nothing to lose would not testify against them and that is indeed what happened.

The respondents give their entire defense away from putting pressure on Jane Doe, away from pointing an accusatory finger at Jane Doe and in fact the part of Allen and Hardrick’s charge that I quoted to to the Court indicates that they were virtually conceding those counts rather than have Jane Doe testify on the serious life sentence charge.

And I say this also because it seems unlikely that counsel, who had so successfully defended these respondents on the drug charge; this was actually by any standard a very successful defense, would have been unlikely, particularly since they knew about everything that was going to happen at the jury charge period, would be unlikely to overlook such an important feature.

Eileen F. Shapiro:

And there is also possibly another explanation for this waiver, which may come to mind and that is that these respondents were in a sense willing to accept a compromise verdict to allow the jury to convict them on the lesser charges in the hopes of getting an acquittal on their life sentence charge.

And of course, respondents have a burden for coming forward with a good cause, mere inadvertence does not satisfy the Wainwright v. Sykes standard, but if either of the theories that I have proposed to the Court is supported by the record and I believe they are, these respondents have failed to even meet the Fay v. Noia standard.

If notwithstanding the respondents’ waiver, the court nevertheless considers the constitutionality of the presumption, the state submits the statute as constitutional.

The statute is a carefully drafted statute, which embodies legislative recognition that illegal handguns and automobiles are closely linked with the commission of violent crimes.

The presumption provides that presence in a private automobile an illegal weapon is presumptive evidence of its possession by all the occupants of the car unless one of the exceptions applies.

There are three exceptions; there is the on the person exception, which this case involves, there is an exception where possession will not be imputed to a taxi cab driver, if a gun is found in the car and the third exception is if one of the occupants of the car not present under duress has a valid license.

There are also approximately 15 exemptions, which are contained in another statute 265.20 of the penal law.

And persons — these exemptions are the persons, who voluntarily surrender handguns for example, or manufacturers, shippers, other legitimate firearms’ holders or owners.

The elements of the car and the felonious weapons possession, which respondents state quite accurately in their petition for the habeas corpus in paragraphs five and six, is a knowing and voluntary possession.

The requisite metal state must be proved by evidence independent of the presumption.

Moreover, New York has a very liberal definition of constructive possession.

The weapons must be within the immediate control and reach of the accused and where it is available for his unlawful use if he so desires.

So thus once the requisite mental state of knowing involuntary possession is established through other evidence, the presumption simply permits, a jury can infer an individual and close proximity to weapon, has that weapon within his immediate reach and control, thus it merely of course the evidence, its natural prohibitive force in effect.

In this case — in such a case rather, the relationship between the proved fact and the presumed fact is so close that it must satisfy any test this Court deems appropriate.

And I referred to the beyond the reasonable doubt test, which is really not that different from the (Inaudible) test.

Finally, the statute focuses on narrowly defined conduct, presence in a private automobile, as the case has showed the presumption is applied in a principle way by the New York courts, on a case-by-case basis taking every variable into consideration.

Byron R. White:

I take it New York is one of those states that purports to say that if the presumption disappears and you just disregard it, when any contrary evidence suddenly comes up?

Eileen F. Shapiro:

Not, when any contrary evidence.

If there was contrary evidence for example that was compelling, the New York judge certainly need not either send the case to the jury or charge the jury on the presumption.

Byron R. White:

So apparently, he thought that there was not enough evidence, but he did instruct on the presumption?

Eileen F. Shapiro:

He did instruct on the presumption, he omitted the instruction on the exception.

Byron R. White:

Do you think he told the jury that they could ignore the presumption if they wanted to?

Eileen F. Shapiro:

There in the charge, the judge does say specifically and I do not have the exact page here that you may disregard — court says, you may find for the respondent even though he submits no evidence in rebuttal.

And then of course, he went through a very careful reasonable doubt charge and said but —

Warren E. Burger:

But did he not virtually give the instruction that is given on the possession of recently stolen property that you may infer?

Eileen F. Shapiro:

And the warrant exceptions.

Warren E. Burger:

On what page is it?

Eileen F. Shapiro:

23 (a) Your Honor.

Warren E. Burger:

I knew I had seen it somewhere, but essentially the possession of recently stolen property instructs.

Eileen F. Shapiro:

It says the burden rest upon the shoulders of the people, it never shifts.

Eileen F. Shapiro:

The defendant is never called to establish his innocence.

Byron R. White:

The defendant need not have to prove —

Eileen F. Shapiro:

The defendants do not, the charge is very careful to state that defendants do not have to come forward with any rebuttal evidence that the jury could disregard the presumption and nevertheless acquit the respondents.

Potter Stewart:

Well then none of that has to do with specifically or explicitly with the presumption at issue, in the statutory presumption at issue in this case?

Eileen F. Shapiro:

Well, I think it is —

Potter Stewart:

Where are the instructions about that?

Byron R. White:

[Inaudible] went onto instruct on presumption.

Eileen F. Shapiro:

Yes.

Potter Stewart:

Where?

24, 25?

Eileen F. Shapiro:

I am looking for it.

John Paul Stevens:

That is the presumption —

Eileen F. Shapiro:

On page 25, begins the presumption charge.

It starts on the bottom of page 24, the top of page 25.

Potter Stewart:

Well.

Eileen F. Shapiro:

And he defines possession and in terms of the drugs and in terms of the gun.

Byron R. White:

Do you think this part of the instruction is correct?

The presumption or presumptions is effective only so long as there is no substantial evidence, opinion — conclusion flowing from the presumption and the presumption is set to disappear when such contradictory evidence is adduced.

Is that the New York law?

Eileen F. Shapiro:

The New York law is if substantial evidence is introduced to rebut the presumption, then the presumption need not go to the jury.

Byron R. White:

So this must have been his opinion if there had not been any substantial evidence on the contrary side or there would not have been any presumption instruction at all?

Eileen F. Shapiro:

Probably so and there was no effort made on the part of the respondents for example to rebut the presumption.

Warren E. Burger:

Going up to the third line of that paragraph of the instruction, you may infer and draw a conclusion that such prohibited weapon was possessed by each that is essentially what is given and has been approved universally in terms of possession of recently —

Eileen F. Shapiro:

Stolen property as in –

Warren E. Burger:

— stolen property, even where records have set a presumption of that effect would violate due process?

Eileen F. Shapiro:

But any inference would and —

Warren E. Burger:

But a permissible inference is acceptable?

Eileen F. Shapiro:

Well, as I pointed out at the end of my main brief, I think that the New York, the practice in the New York courts in any event is to employ the statute permissively and so it is more like an inference than like a statutory presumption for example, some of the federal cases that this Court has examined.

Thurgood Marshall:

But the original Sullivan Law would just an out and out presumption?

Eileen F. Shapiro:

Pardon me?

Thurgood Marshall:

The original Sullivan Law was just out and out presumption?

Eileen F. Shapiro:

Well, the Sullivan law Your Honor, referred to an entire range of firearms protection devices.

Thurgood Marshall:

The original one was just presumption?

Eileen F. Shapiro:

Oh, you mean the 1936 statute?

The 1936 statute prior to adding one of the exceptions?

Thurgood Marshall:

Yeah, that one.

And then all of these have been added on later.

Eileen F. Shapiro:

Yes Your Honor, yes.

Thurgood Marshall:

But the original one, you called when he did not have a license.

Eileen F. Shapiro:

Yes Your Honor.

Thurgood Marshall:

And it was the constitutional statute except this Court [Inaudible]

Warren E. Burger:

Mr. Young, before you go on, let me try to clear up one question.

If no appeal had been taken at all, direct appeal would the state courts in New York entertain habeas corpus to attack the basis of the conviction?

Michael Young:

In response to that, I would like to clear something up Your Honor.

The petitioners insisted that the respondents never raised their constitutional claim in the state courts, that is simply incorrect.

Warren E. Burger:

Well, let us get an answer to my question first.

If there was no direct appeal —

Michael Young:

Yes sir.

Warren E. Burger:

The conviction be attacked on?

Michael Young:

Not on grounds which were available to the petitioner at the time he could have taken his direct appeal.

Warren E. Burger:

Well then, if that is so, would it not follow that a direct appeal, which omitted raising certain points, would not be permitted on habeas corpus, [Voice Overlap] habeas corpus?

Michael Young:

Yes Your Honor, that is correct, yes Your Honor.

Warren E. Burger:

So, we come down now to what you were about to say?

Michael Young:

Which is that this direct appeal fully raised the issue we are talking about right here.

And I would like to take Your Honor through the documents, which are relevant to that fact because frankly what Ms. Shapiro was describing, I am not sure we are talking about the same case.

Petitioner’s first challenge —

Byron R. White:

[Inaudible] —

Michael Young:

[Attempt to Laughter] Well, I hope I can clear this up.

Petitioners or the respondents, it is difficult for me to change, I am usually a petitioner’s representative, so I may make a slip of the tongue, the respondents, the defendants in this case first challenged the presumption in this case at the earliest possible moment in the state proceedings.

That challenge was a general challenge.

Michael Young:

It came at the end of the government’s case.

Warren E. Burger:

Where do we find it?

Michael Young:

That set forth on pages 12a to 17a of the appendix, the joint appendix in this case.

Now, that challenge, we can see did not spell out the constitutional issue.

Warren E. Burger:

12 to 17, that is five pages.

Would you pinpoint the first place where it is raised?

Michael Young:

Sure.

Let’s see, I believe on page 14a, we get into it most exactly.

William H. Rehnquist:

You concede that in that five pages you did not specifically challenge it on the federal Constitution?

Michael Young:

Yes, Your Honor, we concede that.

All that we are pointing out about that is that the presumption was challenged in general terms at that point because the constitutional challenge comes forth very clearly later on in the trial proceedings.

I just want to point out that that is the first instance when the respondent said, hey, we do not think that this presumption is applicable in this case.

William J. Brennan, Jr.:

Applicable?

Michael Young:

Applicable and most importantly —

Byron R. White:

Where is the federal constitutional claim?

Michael Young:

Alright.

The federal constitutional claim is set forth for the first time in the appendix at pages, see 36a, Your Honor.

William H. Rehnquist:

That is your motion for a new trial?

Michael Young:

That is a motion to set aside a verdict, which is specifically authorized under Section 330.30 of the New York Civil Procedure Law and it is appropriate at that time Your Honor because this is not a charged case, this is not the case in which we are simply arguing that if the judge had charged the jury differently that everything would have been alright.

This is a case of failure of proof.

It is a case where the state admitted that it has no proof that the defendants possessed the guns.

William H. Rehnquist:

But this is — anyway after the trial is over, was the first time that you raised the point constitutional —

Michael Young:

The constitutional issue, yes Your Honor, but before judgment.

Byron R. White:

And you are saying that the trial court was obligated to decide your submission here in terms of —

Michael Young:

Yes Your Honor.

The trial court was obligated at this point just as it would have been at any point during the trail when this issue could have been raised.

The trial court was obligated to dismiss the charges, not simply to instruct the jury differently or to tell —

Byron R. White:

Okay then where is your submission then?

Michael Young:

Alright, that is on page 36a in which the respondents specifically stated, secondly, if the presumption is applicable —

Potter Stewart:

On what page?

Michael Young:

On page 36a of the joint appendix, that is the tan document.

Potter Stewart:

Alright, I got —

John Paul Stevens:

Mr. Young, is it perfectly clear, you are raising a federal constitutional challenge and not a state one because although you do cite Leary against United States, you suggest the New York test maybe different, and then you cite only New York cases?

Michael Young:

Well, they do not suggest that the New York case would be different, they say that it is the same.

John Paul Stevens:

The New York test has been held —

Michael Young:

Well, maybe more demanding and in fact.

John Paul Stevens:

It has been held they confirm to that’s set out in Leary, and then you go ahead and just cite all the New York cases.

Michael Young:

We also cite New Jersey cases Your Honor.

We are pointing out that nationally —

Byron R. White:

On what provision of the United States Constitution did you rely on here?

Michael Young:

The Leary’s due process test Your Honor.

Byron R. White:

Well, you do not say so here.

Michael Young:

No Your Honor, but we do say unconstitutional as applied, and then immediately cite the Leary and there can’t be any question, there couldn’t have been any question in the state’s mind that we are referring to the federal constitutional test that that’s set forth in Leary.

In fact, on appeal in this case, every time this argument was raised, the state did not respond by saying, oh, no, the state Constitution allows this.

They responded by saying, no, Leary allows this. So, they recognized the claim as being federally based just as we did.

William H. Rehnquist:

Why did not Judge Jason’s opinion for the majority in the New York Court of Appeals make any reference, at least so far as I can tell, to a federal constitutional challenge having been made to the presumption that Leary based?

Michael Young:

Well, Your Honor, I would point out that the dissenters in the New York Court of Appeals did make reference.

William H. Rehnquist:

Yeah, but they do not speak for the court?

Michael Young:

Well, it is our —

Thurgood Marshall:

Well, Leary is not in the Constitution?

Michael Young:

No, but Leary only applies to the federal Constitution Your Honor and I think it is fairly common practice that if you are trying to raise the constitutional claim, if you say it is unconstitutional and then cite to the controlling —

Thurgood Marshall:

Now I submit that the usual practice is to cite the Constitution, the exaction of the Constitution?

Michael Young:

Then defense counsel was less than explicit, but if the purpose of that rule is to make clear to everyone involved what is being relied on and that is what I think Bryant versus Zimmerman and those cases say that the intent of specifying what you are relying on is so that nobody has any question whether it is a federal Constitution versus a state Constitution.

There could have been any question in this case because Leary does not apply a state test.

Thurgood Marshall:

Well, then we got a little book up here on our desk, that doesn’t say a word about Leary.

It says the United States Constitution —

Michael Young:

No, but Your Honor as I said Leary —

Thurgood Marshall:

That is [Inaudible]

Michael Young:

But Your Honor, the point is that Leary does refer to the — suppose the respondents have simply said that it is unconstitutional under Leary, would not that clearly say what we are referring to as the [Voice Overlap] process?

William H. Rehnquist:

Well, the New York Court of Appeals to me doesn’t even talk about a federal constitutional doctrine relating to presumption in the majority opinion?

Michael Young:

Alright.

The Second Circuit, looking at that opinion said that it is clear that the New York Court of Appeals had considered the constitutional issue.

William H. Rehnquist:

Well, you can look at the opinion, we can look at it, and you tell where it did?

Michael Young:

Alright, it did not — what it did was in the first paragraphs where it discusses how important this presumption is, how necessarily it is to the activities of criminal justice.

William H. Rehnquist:

The first paragraph of Judge Jason’s opinion?

Michael Young:

No, Judge Jason’s opinion, I may be mistaken by it.

William H. Rehnquist:

Well, I thought you said the Second Circuit said the Judge Jason’s opinion does that?

Michael Young:

No, the Second Circuit said that the New York Court of Appeals had implicitly decided the constitutional —

William H. Rehnquist:

Okay.

Where do you think Judge Jason’s opinion implicitly decided the constitutional question?

Michael Young:

Alright.

That decision is set forth in the appendix for the petition.

I am trying to find the beginning of it now.

William H. Rehnquist:

It starts at page 40a.

Byron R. White:

40a.

Michael Young:

Alright.

We submit that as the Court of Appeals suggested that what happened here was the New York Court of Appeals had decided in a score of cases over the last several decades that this presumption was constitutional.

And therefore, it did not spend, it did not expressly address that issue in this case.

So what it did was simply note in passing as Judge Jason does that this presumption and he says, starting at 43a he begins to discuss the presumption, and he points out that the presumption was enacted because of difficulties in proving weapon’s possession without it and because that therefore the urgent need for legislation to make the presence of a forbidden weapon, presumptive evidence of its possession and that such a moment would require the occupants of the automobile to explain the presence of the firearm that therefore this presumption was enacted providing that all persons in an automobile at the time are presumed to possess.

The point is what the court was saying is this is a valid presumption.

William H. Rehnquist:

Well, but there is no reference in that opinion to any provision of the Constitution?

Michael Young:

Alright, but we argued unconstitutionality in that quote, in our quote of that brief.

The court can’t avoid an issue by simply not responding to it.

William H. Rehnquist:

No, but then you must be able to convince us that your motion raising the constitutional question in a motion for us to set aside the verdict and the trial court was timely, that it should not have been made before that time?

Michael Young:

Alright, let us look directly to that issue then.

We submit that, that motion was entirely timely to raise this issue for several points.

Just let me find my —

Byron R. White:

Did the court of New York, Court of Appeals agree with you on that?

Michael Young:

New York Court of Appeals never said that the constitutional claim had been waived.

They only said that a state law claim concerning whether or not the on the person exception to this presumption was controlling as a matter of state law had been waived by the failure to object to the judge’s charge.

Michael Young:

They never said that the constitutional claim had been waived and there are several reasons why they did not say that.

John Paul Stevens:

Mr. Young, I imagine one reason maybe you did not make a separate point of the constitutional issue in any of these.

You just argued it in passing during the part of your argument on the insufficiency of the evidence, didn’t you?

Michael Young:

Well, Your Honor, it is hard to say that it was argued in passing when it specifically said secondly if the presumption is —

John Paul Stevens:

Yeah, but if somebody read your, who just read the summary of argument in the [Inaudible] you never find the mention of the constitutionality.

Michael Young:

No, but well you do actually in the part addressing the state, the state argued that it was a constitutional presumption.

John Paul Stevens:

I see, but your point, it is under the point the evidence was insufficient to support the conviction, that is what you used?

Michael Young:

Yes, if you look at the brief to the Court of Appeals, that’s set forth in the joint appendix at page, let us see —

John Paul Stevens:

40.

Michael Young:

40, well 50a is when the constitutional part of that is submitted.

Warren E. Burger:

50a?

Michael Young:

50a and there again, the respondents plainly stated secondly, if the presumption is applicable here that it is unconstitutional as applied.

In essence they used exactly the same argument that they had used in their motion to set aside a verdict, namely the federal —

John Paul Stevens:

Well, you will surely admit that you did not argue that the statute was facially unconstitutional?

Michael Young:

We will argue that that was preserved Your Honor for two reasons.

One is this presumption has had a history over the three decades since it was enacted of being held facially constitutional by New York’s highest court.

Now, 2254 only requires you to exhaust effective state remedies before raising an issue on Federal habeas corpus.

And this Court and every Circuit Court has interpreted that phrase to mean that where an issue has been squarely decided by the state’s highest court in previous cases that a petitioner is not required to argue it again in the states’ courts before raising it in Habeas corpus petition.

Warren E. Burger:

Coming back to several questions put to you, where did the Court of Appeals deal with the problem?

Michael Young:

Well, first of all, let us take it on two stages.

First of all, it is clear that the respondents raised a constitutional challenge in the Court of Appeals that is set forth on 50a, the part of our brief, that is set forth on 50a.

We submit as the Second Circuit found that the New York Court of Appeals did not expressly address the constitutional issue because that it decided it in so many previous cases.

Therefore, it only noted in passing how important this presumption was, and then went on to address the respondent’s state law argument because that is what the defenders in the New York appellate division had agreed with the respondents on.

So, in other words, the New York Court of Appeals in essence said, we have decided 15 times already that this statute is constitutional.

We are not going to do a lengthy analysis of that now.

All we are going to do is note that this presumption has a pressing need that it was enacted because of certain problems dealing with criminal justice and now we are going to go on and address the problem that troubled the appellate division dissenters.

That is how that opinion looks, but like I said, even if they had not made any reference to the need for the presumption, we raised the issue and they can not duck it.

John Paul Stevens:

But they did duck it, they did not respond to your precise argument, which was it was unconstitutional as applied to these facts?

Michael Young:

That is right.

John Paul Stevens:

And they do not mention that argument.

John Paul Stevens:

And the fact they have held it constitutional as applied to a lot of other facts, doesn’t have anything to do with the validity of your argument as applied to these facts?

Michael Young:

That is true Your Honor, but —

Thurgood Marshall:

Is it pointed out in the opinion just what you are talking about?

Michael Young:

Yes, the Court of Appeals’ opinion is set forth in the petition, the New York Court of Appeals’ opinion is set forth in the petition for writ of certiorari.

Thurgood Marshall:

I just want to know what page?

Michael Young:

Okay, the page is, I have to find it again.

Byron R. White:

The documents that used to be entitled brief for petition.

Michael Young:

Yeah, it still is on mind, but it’s filled on with most finger prints on it since it has been used the longest.

Alright, that set forth, the part about the presumption starts on page 43a and continues through the end of the opinion, which as long as I guess to 53a.

Thurgood Marshall:

I want to point that too that this case has been decided by so many Supreme Court cases?

Michael Young:

No, I am saying that that is why they did not expressively address it here is because it had been —

Thurgood Marshall:

But you gave me the impression that was in the opinion?

Michael Young:

Oh, I am sorry Your Honor, I did not mean to do that.

What I am saying is that the Court of Appeals had decided this is in so many previous issues that all they did in this opinion —

Thurgood Marshall:

Did the Circuit cycle analyzed it?

Michael Young:

Well, it was enough for the Second Circuit.

The Second Circuit cycle analyze it the same way Your Honor.

They found that it was clear.

Thurgood Marshall:

Well, then [Inaudible] analyzed to me because I have been on the Second Circuit while you had it.

Michael Young:

[Attempt to Laughter] Well, they thought that it was clear that the New York Court of Appeals had only found waivers.

Thurgood Marshall:

Where does it say that?

Michael Young:

It does not expressly address the constitutional issue.

Thurgood Marshall:

Well what do I — If I write an opinion sustaining your position, what do I cite for what you just said, you?

Michael Young:

No, I would cite to the fact that respondents raised the constitutional issue and that since the Court of Appeals did not expressly address it, but did say that they felt that this presumption was valid —

Thurgood Marshall:

Where was it that they said that?

Michael Young:

Alright, on pages —

Thurgood Marshall:

I got to get quote at some place.

Michael Young:

41 — 43 through 45.

Lewis F. Powell, Jr.:

Counsel, if you take a look at the top of page 51a and see if that helps you.

Is that the dissenting opinion?

Michael Young:

Yes, I believe that is Your Honor.

Yes, that is Judge Walker’s dissenting opinion in which he says that constitutional challenges have been rejected in the past by the New York Court of Appeals.

The Judge Walker felt that this presumption was unconstitutional.

Lewis F. Powell, Jr.:

And that suggests that the issue is before the Court, perhaps?

Michael Young:

Well, it definitely —

Warren E. Burger:

Well, it really suggests that the dissenters talk something about it.

It does not suggest that the court thought it was there.

Michael Young:

Well, it does suggest that the issue was before the court.

Potter Stewart:

It was before the court in people against Terra, like in [Inaudible] New York.

Michael Young:

But since Judge Walker found it unconstitutional here in this case Your Honor, referring back to Terra, he was clearly saying that it is an issue here too.

But getting back to the point that I was initially making with you Your Honor, Justice Rehnquist, even though the court did not spell out, even though the New York Court of Appeals did not spell out or converse, what their position was on the constitutional issue, that does not mean that we are precluded from Federal habeas corpus proceedings.

All we have to do is exhaust our remedies in the state court.

We only have to raise the issue.

If the Court of Appeals refuses to confront it, that is not our fault and that does not preclude us under 2254 from raising that issue thereafter in the federal courts.

William H. Rehnquist:

What if it is an established rule of New York practice that you must make a motion based on a constitutional claim at the time that judge charges the jury.

You do not, you make it at the time you made it, in this case, the same procedural history up to the New York Court of Appeals.

You argued the question in the New York Court of Appeal, the majority opinion simply does not mention that one.

Do you think you can go into Federal Habeas on that?

Michael Young:

Alright, Your Honor, again you phrase that in terms of this being a charge case.

Even if the judge, in this case had made no mention whatsoever of this presumption, even if he had never told the jury that they can convict on the basis of this presumption, respondents would still be entitled to the relief, which they have been granted.

That is so because the state in this case rested their case without any actual proof of the crime charged.

Instead they relied solely on this presumption.

I would like to refer Your Honor to the colloquy that occurred at the end of the state’s case on exactly that.

The defense counsel had argued that the presumption wasn’t valid in this case; admittedly they did not raise a constitutional claim at that point.

What is important is that they argued that it was not valid.

And in response, the court turned to the prosecutor and said referring to defense counsel’s argument, he is saying that the only proof you have again is your presumption, right?

The prosecutor – correct.

The court – The defender was in the car and the statute presumes you have no other proof.

The prosecutor – Correct.

So this is a case in which there simply was no proof and defendants right, their constitutional right attached at that point.

William H. Rehnquist:

Is the prosecutor saying correct with respect to the contention, the court’s paraphrase of the defense contention or correct to the court’s statement that that is the prosecution’s position?

Michael Young:

Well, I think the last comment by the court makes that clear.

He says, you have no other proof, asking question, there is the question mark after that —

Potter Stewart:

What page you are on?

Michael Young:

Oh, I am sorry, page 15a, bottom of 14a, the last three lines of 14a and the first three lines of 15a.

Byron R. White:

That does not mean that anybody says there was a proof just means there is no more proofs than the fact the gun and the defendant were both in the same car?

Michael Young:

That is right and that is why —

Byron R. White:

That does not mean there is no proof?

Michael Young:

Well, it does that the presumption —

Byron R. White:

All you are arguing is that you should not be able to infer possession from the presence of the gun and the defendant in the car at the same time?

Michael Young:

That is right Your Honor.

And if you can’t constitutionally do that, then the prosecution’s case necessarily falls at that point.

Thurgood Marshall:

Well, suppose the judge had said, all the evidence you have is that the gun was in the defendant’s hand in the car, is that all you had?

He says, correct.

Would that be alright?

Michael Young:

Well, then they would not be relying on the presumption.

Thurgood Marshall:

That is right.

Michael Young:

Right, but here they have admitted that they were relying solely on the presumption.

Thurgood Marshall:

[Inaudible] when Constitution questions on one sentence and one word by judge everybody else, only one word I know is [Inaudible]

Michael Young:

Well, that is what the judge I think should have said, in this case, at this point.

Thurgood Marshall:

Any other word, [Inaudible] did not they?

Michael Young:

I am sorry, I do not quite understand.

Thurgood Marshall:

Oh, may be I do not know, I do not understand what you are talking about?

Michael Young:

What I am saying is that the defendants’ due process rights were violated at the point that the state rested its case without presenting any actual proof of possession but instead relying solely on this presumption.

So if this presumption is unconstitutional, defendants’ rights were violated at that point no matter what the judge thereafter charged the jury, even if the judge had charged the jury that they could not convict on the basis of the presumption.

John Paul Stevens:

Mr. Young, the colloquy you referred to of course was in connection to the motion to dismiss the indictment, is that right?

Michael Young:

That is right Your Honor.

John Paul Stevens:

And is it correct that defendant though testified?

Michael Young:

Oh, you caught me totally unawares, it is long since long as I read the transcript, I am not sure, I do not think any of the defendants —

John Paul Stevens:

The dissenting opinion is what puzzles me and as Mr. Justice Powell pointed out early, it refers to the fact that the defendant Doe was the only woman in the vehicle expressly admitted that it was her possession?

Michael Young:

I think a police officer testified that she had made that admission Your Honor.

John Paul Stevens:

Oh, so there was other evidence then beside there was evidence about [Voice Overlap]

Michael Young:

Only evidence of Doe’s possession and Doe was not a respondent here.

John Paul Stevens:

I understand but there was some moral testimony about what happened at the time that the vehicle was stopped?

Michael Young:

Well essentially all —

John Paul Stevens:

So there was something more in the record other than the fact that the guns were in the car.

Michael Young:

No that was essentially it, as to these – as to the respondents —

John Paul Stevens:

Well, you just told me a moment ago that police officer testified that she made some remarks concerning the location of the gun.

Michael Young:

Oh you mean that it is a bad evidence, yes that does not apply to the respondents, it only applies to Jane Doe.

Thurgood Marshall:

Would you mind reading me again what the judge asked?

Michael Young:

Yes, the court referring to the argument defense counsel had just made, he is saying that the only proof you have again is your presumption, right?

[Inaudible] and the prosecutor – Correct.

Thurgood Marshall:

Well then that [Inaudible] it was all the evidence?

Michael Young:

Yes, that is all the evidence that they have.

Thurgood Marshall:

But they had a lot more evidence than that.

John Paul Stevens:

All the evidence they relied on that [Voice Overlap] dismiss the indictment.

Michael Young:

Well, his next comment is the court – The defendant was in the car and the statute presumes, you have no other proof?

And the prosecutor – Yes, that is correct.

Warren E. Burger:

Well we can look at the whole record and see what that means because it is ambiguous and it can’t mean literally what it says because on this record, it is clear that these two, one an automatic and one a pistol 45 and a 38 and were in plain sight sticking out of the handbag.

Michael Young:

In plain sight to the police officer, Your Honor.

Warren E. Burger:

Well, then you mean they were not in plain sight to the driver.

Michael Young:

No, because they were in between the right front seat and the right front car door, next to which Jane Doe was sitting, so between the seat and Jane Doe, they were totally out of sight of everybody else in the car.

There is no testimony to the effect that anybody else in that car could have seen those guns and logically they could not have seen them because they were all the way over there.

Warren E. Burger:

You concede the officer could see it but you are saying that the jury could not reasonably infer that anyone in that car could see it?

Michael Young:

Well, number one I do not thing that, that is a reason to inference, but number two, sight is not all that is required for possession, Your Honor.

Warren E. Burger:

Well, I am just taking one segment of it.

Michael Young:

Yes.

Warren E. Burger:

There is other evidence besides what this colloquy the judge indicated.

The evidence is that they were in plain sight in the handbag in the car.

Michael Young:

Right, one gun was totally out of sight because the police officer did not even see it until he had removed the first gun.

Michael Young:

The first gun was in sight only in that the handle was sticking out of the top of the purse that was located in that location.

I think it would be a pretty strange —

Warren E. Burger:

The only point I am making is that is evidence from which a reasonable juror could reasonably conclude that other passengers in the car saw the same thing the officer did.

Michael Young:

As to the bottom gun?

Warren E. Burger:

As to the gun which was in plain sight.

Michael Young:

Alright, but they were convicted of both guns.

So even if sight alone was enough to convict here, it would not justify the conviction on the second gun.

Warren E. Burger:

Is the crime greater for the possession of two guns than one?

Michael Young:

Well, the presumption was used to convict for both.

So, obviously the issue would be raised as to the second gun even if Your Honor were correct in saying the mere — that the first gun was visible and moreover to visibility permitted a conviction simply because it was visible.

Now we strongly disagree with that.

We do not think that visibility, that even if the gun was visible to the other passengers, that is enough.

It simply strained the imagination to say that simply because the gun was visible that all of the people in the car automatically possessed it because it was visible.

John Paul Stevens:

But the presumption does not mean everybody automatically possessed that.

The presumption as I understand it means that the jury may look at that presumption with the rest of the evidence and may draw the inference that everyone possessed it, isn’t that correct?

Michael Young:

No Your Honor, the reason I know is visibility, yes.

John Paul Stevens:

Yeah.

Michael Young:

But let us look at exactly what the presumption —

John Paul Stevens:

They do not have to accept the presumption?

Michael Young:

Alright, no they do not, but let us look at what the presumption means because it does not mean what Ms. Shapiro described to you.

New York Court of Appeals has uniformly held that this presumption authorizes a jury, if they so wish in most instances to infer possession of a gun to anyone who is present in the car where that gun is found.

Byron R. White:

If they conclude that they have come back with a guilty verdict, they would have violated their instructions unless they have found that beyond a reasonable doubt, every member in the car possessed the gun?

Michael Young:

Well that is not –

Byron R. White:

The presumption, well, they have been told to find the defendant guilty unless they find the status prove the case beyond a reasonable doubt.

And may be the presumption under the so called inference is part of the truth, but they nevertheless have to be convinced.

Michael Young:

Well then Your Honor, let us look at page 25 of the joint appendix which contains the part of the judge’s charge addressing the presumption and there his lead of statement is our penal law also provides that the presence in an automobile of any handgun or firearm which is loaded is presumptive evidence of their unlawful possession.

So that alone could be —

Byron R. White:

I know but the jury nevertheless, it’s presumptive evidence that is true, but nevertheless it has to be evidence that will convince the jury beyond a reasonable doubt, that is the instruction.

Michael Young:

Well, according to the New York Court of Appeals and I think this Court is bound by the New York Court of Appeals’ interpretation of the statute, New York Court of Appeals states in their opinion in this very case that the presumption creates a prima facial case against the defendant.

Now, it is my understanding —

Byron R. White:

I know that just means it is enough to get to the jury.

Michael Young:

That is right, enough to convict on.

Byron R. White:

Well, I know but the jury – yeah, but the jury nevertheless has to be convinced beyond a reasonable doubt, that is the way it was instructed and say, find the defendant guilty, without finding guilty beyond a reasonable doubt, they have violated their instructions.

Michael Young:

Yes but based on —

Byron R. White:

Alright, but whatever the evidence is, it has to convince them beyond a reasonable doubt?

Michael Young:

And the judge was telling them that they could reach their conclusion based only on this presumption.

Byron R. White:

I know but they don’t suggest it, they did not have to.

Michael Young:

No, they did not have to.

Byron R. White:

But they have to find him guilty beyond a reasonable doubt.

Now you cannot construe the constructions any other way, can you?

Michael Young:

Yes, I can well, I can construe those together.

Byron R. White:

If you had, why do not you come up here and claim that some other section of the Constitution has been violated, that they have violated the beyond reasonable doubt standard?

Michael Young:

Well to a certain extent, this does because it —

Byron R. White:

Well that does not – that isn’t the question you presented to us?

Michael Young:

I know because we do not feel that, that is the central issue here.

What we feel as a central issue is that the due process rights were violated because the jurors were instructed that they could draw an irrational inference and as this Court had said in every presumption case it has dealt with, that is enough to violate the defendants’ rights.

You do not have to also violate the rights by mis-instructing them as to the reasonable doubt standard.

In every one of the presumption cases where this Court has reversed the conviction because the presumption was irrational, the juries were charged that they had to find guilt beyond a reasonable doubt in those cases.

So it is not enough that they were instructed on reasonable doubt in this case.

What is important is that the prosecutor rested this case solely on the basis —

Byron R. White:

So are you really objecting to on a Sixth Amendment basis that they really interfered with your right to a jury trial?

Michael Young:

There are implications of that Your Honor.

It is more a due process violation under Leary.

What the judge has said is the jury does not have to be rational.

Thurgood Marshall:

You want us to affirm the –

Michael Young:

Pardon me.

Thurgood Marshall:

Do you want us to affirm the judgment in this case?

Michael Young:

Yes, I do Your Honor.

Thurgood Marshall:

Then what you are arguing about?

Michael Young:

Well I —

Thurgood Marshall:

You have not cross petitioned?

Michael Young:

Pardon me.

Thurgood Marshall:

You have not cross petitioned.

You have done all these things that were not before the Court and I am not here, am I right?

Michael Young:

No, all the issues that we are talking about now were before the Court.

Thurgood Marshall:

And decided maybe —

Michael Young:

Pardon

Thurgood Marshall:

Go ahead, go ahead.

Michael Young:

I am sorry, I misunderstood Your Honor’s question.

Warren E. Burger:

I think your time is up counsel.

Michael Young:

Alright, thank you Your Honor.

Warren E. Burger:

The case is submitted.