Giles v. Maryland

PETITIONER:Giles
RESPONDENT:Maryland
LOCATION:Berheldt Residence

DOCKET NO.: 27
DECIDED BY: Warren Court (1965-1967)
LOWER COURT:

CITATION: 386 US 66 (1967)
ARGUED: Oct 12, 1966
DECIDED: Feb 20, 1967

Facts of the case

Question

Audio Transcription for Oral Argument – October 12, 1966 in Giles v. Maryland

Earl Warren:

James B. Giles et. al, petitioner versus Maryland.

Mr. Forer?

Joseph Forer:

Mr. Chief Justice and may it please the Court.

This case arose as a proceeding under the Maryland Post-Conviction Procedure Act which is a statutory substitute for habeas corpus and coram nobis.

The petitioners who were serving life sentences and are serving life sentences following the commutation of death sentences challenged their conviction for rape under the Act on constitutional grounds.

The first question that I will argue is whether the conviction of the petitioners was obtained in violation of due process by reason of the prosecution suppression of material evidence favorable to the accused.

And for that purpose, I must first give you a condensed summary of the evidence which came out at the petitioner’s criminal trial.

The petitioners are brothers.

On the night of July 20, 1961, they were swimming and fishing in the Patuxent River near their home.

As they left the river with the companion Joseph Johnson, they encountered 500 feet from the river in deep woods an automobile.

In that automobile were two people, a 16-year old girl named Joyce, and a 21-year old man Stewart Foster.

Potter Stewart:

What time of the night was it?

Joseph Forer:

This was late at night close to midnight.

An altercation started at the car between the Giles brothers and Johnson on the one hand and Stewart Foster on the other.

The testimony is in conflict as to what caused the altercation and who provoked it and for present purposes, I’d not go into that.

But very early in the altercation, at the time when James Giles and Johnson threw some stones at the car, Joyce ran out of the car and into the woods along the side of the dark road.

According to her testimony, she ran a distance of 30 feet at which point she stopped because she said she was out of breathe and she had fallen.

John Giles soon afterwards left the car while the altercation was still going on to come back into the woods and came upon Joyce.

The two of them were together there for approximately 10 or 15 minutes during which time they had some conversation.

Joyce herself testified that she was the first person to introduce the subject of sex.

In that she offered John Giles to have intercourse with him if he would help her get away.

John Giles also testified to that offer.

But he gave it a little more body, he testified that she also explained to him that she was on probation and couldn’t afford to get caught in the woods and didn’t want to get in any trouble and for that reason she was anxious that he help her get away.

After they have been quietly in the woods together for a while.

The altercation of the car ended when Stewart Foster was knocked out and then ran off.

The other two young Negroes, Joseph Johnson and James Giles, came into the woods along the same path and they came upon John Giles and Joyce.

At this point, there’s a very serious cleavage in the testimony.

Joyce testified that the three men were there and that each one of the three they’re after having intercourse with her.

She testified that she did not resist, she testified that she made no outcry, she also testified that she made no remonstrance.

She didn’t even say to them, “Please let me alone.”

Joseph Forer:

She also took off her own clothes.

This was her own testimony.

She said she submitted this way because she was frightened.

The Giles brothers testified that as the two who had been delayed came along the path, Joyce called them over saying to John, “Well I know what you boys want.”

Then she called them over and said, “I know what you boys like” and then urged them to have intercourse with her.

She took off her own clothes, she was the stage master of the affair.

She directed the order of intercourse.

And then the course of this transaction, she told them that she had had 16 or 17 other boys that week and two or three more wouldn’t make any difference.

She told James Giles that she was in trouble, and that if she were caught in the woods, she would have to claim that she was raped.

She repeated to John Giles that she was on probation and that if she were caught in the woods, she said she would have to claim she was raped.

According to the testimony of the Giles brothers, John Giles refused the invitation of the intercourse, the other two accepted the intercourse.

At the trial, on redirect examination by the state, Joyce was asked if she was in fact on probation at the time of this episode.

She denied that she was on probation and thereafter on cross examination of the petitioners, the State very effectively ridiculed their testimony that she had told them that she was on probation.

At the trial, the Giles brothers being indigent or represented by court appointed counsel. Joseph Johnson, the third man in the affair was also indicted but he got his case severed and transferred at Orlando County and he’s not in this case although it’s an open secret that his faith abides this case.

The trial started on —

Earl Warren:

What was that last you said?

Joseph Forer:

I said it’s an open secret that his faith abides the result in this case.

Byron R. White:

Has he been tried?

Joseph Forer:

He has been tried, convicted, sentenced to death commuted.

Post conviction petition filed and by agreement with the state every batch has been held up to see what happens here.

Potter Stewart:

Why was that trial a different kind?

Was it a change of venue?

Joseph Forer:

He got a severance and a change of venue.

Potter Stewart:

Change of venue.

Joseph Forer:

Yes.

Potter Stewart:

There’s no question about the venue where this alleged crime —

Joseph Forer:

Oh no, this happened in Montgomery County.

Potter Stewart:

Yeah, yeah.

Joseph Forer:

The Patuxent River is the border line between Montgomery and Howard and they were on the Montgomery County side.

Now, the trial started one day December 4 and it ended the next that’s from the choosing of a jury for the jury verdict of guilty.

Joseph Forer:

The only defense witnesses for the petitioners with the technical and academic exception that the defense counsel also called two of the policemen and they tried unsuccessfully to get them to admit that Joyce had originally told the police that she was even raped by two men rather than by three.

They denied it and the only listed to help defense, the whole thing was a factless maneuver because Joyce had already admitted that she had originally told that to the police.

The case went to the jury.

It was a conflict between credibility.

This all white jury had to decide whether to believe this 16-year old white girl or these two young Negroes.

And the story that these two young Negroes gave was the most implausible story.

It was that under these rather frightening conditions, the 16-year old child solicited intercourse with three Negro strangers.

For the jury to believe their story, they would have to find that this 16-year old child was incredibly wanted that she was probably mentally disturbed and there was no evidence of either condition.

They would also have to believe that this girl who was not on probation went around intuitively telling people that she was on probation.

The jury found them guilty and their story didn’t impress the trial judge, Judge Pugh, very much either because although under Maryland law, he had a choice of sentence from 18 months they day he imposed to that sentence.

These two brothers were at that time aged 20 and 22.

Joseph Johnson didn’t feel any better in this trial at Minneapolis.

After the appeals were exhausted on November 16, 1962, 11 months after the verdict, a new trial motion was filed on behalf of the petitioners alleging the newly discovered evidence.

The circuit court denied this motion without even looking at the newly discovered evidence on the ground that the motion was filed too late.

They said under Maryland rules if you want to file a motion for a new trial on the base of newly discovered evidence you have to file within three days after verdict.

This ruling was affirmed by the Maryland Court of Appeals.

Subsequently, in October of 1963, Governor Tawes commuted the death sentences of the three men, that is, for two petitioners and Johnson to life.

This post conviction proceeding was filed about six months after that in May of 1964.

It was heard in the circuit court of Montgomery County though before a different judge than the sentencing judge.

And after an evidentiary hearing, the circuit court found that the petitioners had been denied due process by reason of the fact that the prosecution had suppressed material exculpatory evidence.

The state appeal and the Court of Appeals reversed — the Court of Appeals heard the case en banc and they reversed five to two.

And that then we came here.

Before I get into a discussion of the evidence which came out at the post conviction trial and a description of the evidence that we claim was suppressed, I would like to mention a couple of the legal issues that are involved.

The legal issues in the suppression point all arise out of one sentence.

They all arise within the framework of one sentence over the Court’s decision, 1963 decision in Brady against Maryland.

And in that case, the court said and I quote, “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution.”

Now, in that case, the qualification of on request is explainable by the fact that in that case, the evidence which had been withheld had been requested.

In fact, none of the lower courts which have passed on suppression cases have ever made a requirement that the defense had to request the information before the nondisclosure could be excused.

And this is true of cases which were decided before Brady including two Third Circuit cases which Brady cited with approval of stating the correct rule and two of cases cited after Brady and it was true in this very case.

In this very case, the Maryland Court of Appeals did not require a showing of a request for disclosure and it is perfectly obvious that the — if you — a requirement of a request would defeat the rule because the time when a defense needs disclosure the most, is when the defense is so ignorant and so uninformed that it doesn’t know what to request or even whether to request.

Joseph Forer:

So for the future purposes, I shall assume that the Brady rule applies without the need for a request for the exposure abiding the facts.

That brings me to the second requirement of the Brady case and that is that the withheld evidence be material.

And Brady didn’t explain the meaning of the test of materiality.

The Maryland Court of Appeals didn’t explain it either but if you analyze what they did, it is perfectly clear that they held that evidence is immaterial unless it were so strong that as to be full through.

If there was any possibility that it might not have affected the result then it wasn’t material.

Now, it seems to us that the analogy here should be to the test of materiality which this Court develop in cases like the Napue case where the fault was the introduction of testimony known to the prosecution to be incorrect and the failure of the prosecution to correct the incorrect testimony.

And the tests stated by this Court in the Napue case was that the evidence, the wrongful — the admitted evidence, was material and tainted the conviction if the false testimony, “May have had an effect on the outcome of the trial” and the Court has applied the same tests to cases where evidence where illegally obtained evidence and violation of the Fourth Amendment was admitted.

So in they against Connecticut, the test was whether the admission of the evidence — there was a reasonable possibility that the admission of the evidence might have affected the result.

Now, this kind of case is a corollary case to the use of false evidence and it seems to us clear that the same test of materiality should apply namely if the evidence if the evidence have been revealed, was there a reasonable possibility that it would have affected the result.

In our view, this test of materiality was more than that.

And now I come to our description of the evidence that we claim was suppressed and which was brought out at the post-conviction proceeding.

The evidence falls under two categories.

The first category is evidence of the events between the episode the alleged rape of July 20, 1961 and the trial in December 1961.

The evidence shows this, on the 9th of August 26, 1961, one month after the alleged rape, three months before the trial, Joyce went to a party, and at the party she had intercourse with two men; one in the bathroom, one in the yard.

Early the next morning, she took an overdose of drugs and a suicide attempt and she was taken to a hospital and was kept in the hospital in the psychiatric ward of the hospital for 10 days with admitting diagnosis of a psychopathic personality.

While she was in the psychopathic ward of the hospital she was visited by a boyfriend of hers named Busty.

Busty asked her why did she attempt suicide.

She told Busty that she had been raped the night before the suicide attempt by these two men that whom she had had intercourse at the park, and she gave him the names of the men and all the detail.

Busty reported this rather officiously because she didn’t ask him though.

Busty reported this to her parents.

Her mother first called sergeant way up in Montgomery County police who was in-charged of the investigation resulting in the conviction of petitioners.

And she told Sergeant Whalen that Joyce had been raped again.

So Whalen asked her where did this take place and she said in Prince George’s County.

So Whalen said well don’t bother me, tell it to the Prince George’s County police and presumably he went back to sleep.

So she or her husband reported it to the Prince George’s County police.

Detective Sergeant Wheeler of the Prince George’s County Police came to the hospital to interview Joyce in connection with this complaint.

When he interviewed her, the first thing she told them was that these two men at the party had had relations with her against her will.

But he then questioned her further.

In the course of the questioning it became perfectly apparent that she had not been raped, that she engaged in voluntary intercourse, she had put up no resistance and that the most she had was an unexpressed mental reservation.

She really didn’t want to engage an intercourse with these two boys at that time.

Joseph Forer:

She said at that particular time because she was afraid that if all the other boys at the party got to know about it, they would all insist on having intercourse with her.

Otherwise, she said she wouldn’t even have had this mental; reservation, and she also admitted that in the past with one of the two men with whom she have had intercourse at the party, she had had relation with.

They were white.

Which boy?

You mean the second rape claim?

The one that were —

Joseph Forer:

They were white, they were white

(Inaudible)

Joseph Forer:

One month after —

(Inaudible)

Joseph Forer:

That’s right.

One month after the alleged rape by petitioners three months before the trial.

Hugo L. Black:

Is that the evidence that you claim states would have given it?

Joseph Forer:

That’s the first, this is what then the —

Hugo L. Black:

Do you think that would have been admissible on that trial?

Joseph Forer:

Yes.

In a few — if I may hold it until I finish my account of the evidence because I haven’t concluded it I will come to that question Justice Black.

She also told Wheeler a little more than these circumstances, she also told Wheeler something about her sex history generally.

He told him that for the past two years since the time she was 14, she had had intercourse relations with so many different man and boys that she didn’t know how many including many of them who were strangers.

Joseph told them that on numerous occasions she had engaged in oral settlement.

At this point Wheeler marked the case closed on count.

Now, to get to Justice Black’s question, these episodes and these are episodes within the first category for purposes of the precedence and the evidentiary question.

It seems to us that this is narrative account to have four components.

First is that she made a false accusation of rape against somebody else.

Secondly that she attempted suicide and incidentally at the post-conviction proceeding and psychiatrist testified that this of the 16-year old girl was itself indicative a serious mental disturbance.

Third, she was hospitalized in the psychiatric ward and, fourth that she had a sex history indicative of nymphomania.

Now, the authorities numerous authority dealing with sex cases in various jurisdictions hold even in the abstract that any as to each one of these four components that they are admissible in evidence where there is a defense of consent because they are indicative of the mental illness of the prosecutor and because they are indicative of a well-known syndrome which involves as a characteristic element, a compulsion on the part of a young girl to contrive sex offenses by men.

Potter Stewart:

Is that clear on the law of Maryland?

Joseph Forer:

In the law of Maryland, nothing gets clear on the evidence.

All I can say is that the majority said we will assume that this information could reasonably have been deemed admissible and useful.

Joseph Forer:

The —

Potter Stewart:

I’m not talking about this case, do you understand?

I’m talking about the case law of Maryland.

Joseph Forer:

The case law of Maryland isn’t clear one way or the other.

Just not clear one way or the other.

However, this — on the one hand the majority — at least the Court that sets the law in Maryland.

Majority said we’re willing to assume it would have been admissible.

The two judges in the minority said we think that it was reasonably admissible or a reasonable possibility of admissibility and pointed out that when you come to the close question with evidence, you can’t tell whether it’s admissible until you see how it’s produced when she seems to me make the most sense.

The grounds on which is often a particular way the counsel works within and so forth.

And the trial judge in the post-conviction proceeding also said that he thought that there was a reasonable possibility of admissibility and he also said, he doesn’t have to find the least admissible in case there were a trial.

In another ground of materiality here, is that with this kind of information, it seems to us that defense could have applied for and would have received a pretrial mental examination of the prosecutor.

And considering the evidence which we do not claim to be suppressed but the newly discovered evidence in addition to what I have described, there is certainly a very strong possibility that this mental examination would have been adverse to the girl’s credibility.

If I may anticipate the next question, there is no law in Maryland one way or the other as to whether or not pretrial mental examinations can be ordered in such a situation.

Now, aside from the fact–

Potter Stewart:

Is there any law anywhere else, you’re speaking anonymously.

Joseph Forer:

There is law elsewhere and decided —

Potter Stewart:

Not a party to litigation.

Joseph Forer:

What?

Potter Stewart:

The — this young woman wasn’t a party to the litigation.

Joseph Forer:

There is law–

Potter Stewart:

— elsewhere that she was going to have a pretrial mental investigation of a third party witness?

Joseph Forer:

If you will look at page 31 of my — our brief Justice Stewart you will see that we cite some law on that subject.

We cited the New Jersey case, California case and the South Dakota case.

And we also explained what sanctions are available to the Court if the prosecutor refuses to take the — such a mental examination.

This is the new law and as I say there is no precedent in one way or the other in New Jersey.

But leaving aside, the question of whether in Maryland —

Earl Warren:

In Maryland.

Joseph Forer:

In Maryland.

Hugo L. Black:

Is it your argument that the state has abused this evidence in putting —

Joseph Forer:

The states should have informed the defense of it.

Joseph Forer:

And then by the state —

Hugo L. Black:

They should the defendant that they knew some escapades of a witness that they might use in a case.

Joseph Forer:

That’s right.

Not only an escapade that she had made a false accusation of rape against somebody else when part of their defense was that she was making a false accusation of rape against them.

And when —

Byron R. White:

[Inaudible]

Joseph Forer:

No, as I narrated, she told her boyfriend Busty who told her family, who told the police, but —

Byron R. White:

[Inaudible]

Joseph Forer:

No, when Sergeant Wheeler talked to her, the first thing that she said to Wheeler, the very first thing amounted to an accusation of rape because she said to Wheeler, these two men had intercourse with me against my will.

It was then when Wheeler cross-examined her that these facts came out.

She never denied that she’d been raped, she just gave them the facts which negatives is rape.

Byron R. White:

[Inaudible]

Joseph Forer:

That’s right, that’s right, then no wonder.

Now, leaving aside the abstract question that this kind of evidence in segments of it has been held admissible in various jurisdiction.

This evidence has peculiar materiality and peculiar relevancy here so that in my view it could have been admitted because of the particular facts of the case regardless of some other technical obstacle.

Hugo L. Black:

Is it your argument that it was a violation of due — it would be a violation of due process for Maryland to define and let such evidence from the interview?

Joseph Forer:

I think it well may have been because if they want —

Hugo L. Black:

It would be up to us to determine whether Maryland should made evidence to that time they admitted the case.

Joseph Forer:

Actually Justice Black, we don’t think you have to go that far.

But to answer your hypothetical question because I don’t think that’s involved here — now it is –because if the evidence would have been admissible you don’t have to decide whether it would be a violation of due process if it’s not admissible.

Hugo L. Black:

Yes, but if — are we going to decide it on the basis of what is the state law is or what the due process law is?

Joseph Forer:

No, on the basis of state law.

Now, if I will go further, however, if all these evidence were inadmissible in state law in my opinion, that would be just as much a violation of due process as it is to convict the person on the state law without any evidence of guilt.

William J. Brennan, Jr.:

Yes, but the only due process argument you’re making here that there was a violation of due process for the state authority is not to inform the defendant.

Joseph Forer:

That’s right.

William J. Brennan, Jr.:

That they have it.

Joseph Forer:

That’s right.

William J. Brennan, Jr.:

That’s as far as you go from (Voice Overlap)

Joseph Forer:

As far as I go.

If I may say–

Hugo L. Black:

To go further.

You have to go further, do you not?

It wouldn’t be a violation of due process but it’s also is not to give them information would it of that evidence which would not be admissible in the trial?

Joseph Forer:

Well, that’s not correct either, it might be because if you — first, you never can tell really whether the evidence is admissible or not, but secondly, this may be evidence which will lead them to evidence which they can produce in an admissible form.

So the question really isn’t in the —

Hugo L. Black:

Well the prosecuting attorney has got to give all — got to cite all of the evidence that he thinks might lead them — let them be lead to obtain some other evidence to be admissible.

Joseph Forer:

Now, the prosecuting attorney has to make the judgment, whether evidence that he has is reasonably exculpatory and material and is the kind of evidence that the other side might not have.

And the Court of Maryland, the Court of Appeals of Maryland held this state law as well as federal law held that where there is a possibility, a reasonable possibility of materiality and admissibility, the prosecutor has a duty to inform either the defense or the judge or the jury of this exculpatory evidence.

Hugo L. Black:

Maryland is a matter of state law or as a matter of federal law?

Joseph Forer:

They just said that’s the law.

They — now, whether they were interpreting state law or federal law and — but I will say that this principle has been announced not only by the state of Maryland but by federal circuits including the District of Columbia Circuit, the Griffin case which was cited by the Maryland Court of Appeals.

That’s certainly a law in Maryland.

But the peculiar relevancy of this testimony is that it would have made plausible the testimony of the petitioners that was otherwise unbelievable.

It would have made plausible that that testimony which required the jury to believe that she was the kind of girl that would have acted and spoken that way that in other words, she was not just an ordinary child, but she was the kind of child that Lillian Helman wrote her famous play about.

William J. Brennan, Jr.:

Mr. Forer, I beg your pardon, does the record show whether the prosecuting attorney or anybody engaged in the trial that actual knowledge —

Joseph Forer:

I’m coming to that as my next subject and if you will just defer it, because I would now like to go into my second category.

William J. Brennan, Jr.:

But before, I would just like to be sure Mr. Forer you’re not arguing here constitutionally there was a broad discovery obligation.

Joseph Forer:

No.

William J. Brennan, Jr.:

On a private party.

I gather your argument is on the basis of the four elements.

The real problem here was (Inaudible) raped her.

Joseph Forer:

That’s right.

William J. Brennan, Jr.:

And your point is that at least when they, there is in their possession knowledge which may not be in the possession of the defense.

Joseph Forer:

And which was not.

William J. Brennan, Jr.:

Which wasn’t which bears upon the credibility of her story that what?

They should have notified the defense that they have it.

Joseph Forer:

That’s right.

William J. Brennan, Jr.:

And that due process required it.

Joseph Forer:

That’s right.

Now, furthermore —

Hugo L. Black:

Who do you mean by they?

Joseph Forer:

What?

Hugo L. Black:

Who do you mean by they?

Joseph Forer:

The prosecution, I meant to say that to Justice Brennan.

Hugo L. Black:

Now, the prosecution is a big turret.

Joseph Forer:

In this case, the prosecution with the information, the knowledge was — and the knowledge of the state’s attorney the chief —

Hugo L. Black:

Knowledge of the state’s attorney?

Joseph Forer:

It was the knowledge of the state’s attorney who was the chief prosecutor would personally drive the case.

He had the same knowledge incidentally that the — that Lieutenant Whalen who was the chief detective in-charged of the investigation then.

So in this case, I don’t think we have any problem as to who is to be prosecuted.

William J. Brennan, Jr.:

What did he know if anything of the conversation between Joyce and Sergeant Wheeler?

Joseph Forer:

I — if he were just told that, I will come to the knowledge aspect in just a moment but I want to correct one — I want to follow up one other thing.

This information wasn’t admissible merely to impeach Joyce’s credibility.

In my opinion, it was also preoperative a substantive evidence of their testimony that she had said to them in the woods, “I have 16 or 17 other boys this week and two or three more won’t make any difference.”

Does this testimony A, makes it entirely plausible that she did have 16 or 17 other boys that week and B that whether or not she had it, she would go around and tell it to relative strangers.

So it would have corroborated that.

Now, let me come to the second category then I’ll get to the question of knowledge but I would like to clean out what the evidence that we’re complaining about the — you recall that I said that the petitioners testified that Joyce have told them variously that she was on probation or in trouble and that if she were caught in the woods because of this thing on probation or in trouble she would have to claim that she was raped.

Now, there was no corroboration of this testimony and the petitioner’s testimony to this effect was ridiculed by the state and Joyce denied that she was on probation.

Now, as the post-conviction proceeding showed at the time of this episode in the woods that was pending against Joyce a petition in the Juvenile Court of Prince George’s County alleging that she was beyond parental console and a recommendation of a court case worker that she be put on probation.

So Joyce was A, in trouble and B, although she was not on probation she was in the status close to it that a lay person might have described as probation.

And furthermore, as the evidence of the post-conviction proceeding showed, in fact she did call it probation because on the Saturday before the Thursday of the alleged rape by the petitioners, she went out with a boyfriend of hers Pat Stevens and she told Pat Stevens let’s stay in Laurel.

Let’s not go down to Hyattsville because I’m on probation.

And in fact, she wasn’t on probation.

She was in this near probation status.

This evidence, the materiality of it can possibly be controverted because it would have corroborated critical testimony of the petitioners which I believe obviously negatives rape and it would have removed a false impression created before the jury by the cross-examination of the defendants and by the state’s witness’ denial of being on probation.

William J. Brennan, Jr.:

And I gather the pendency of that frugal purpose was not known by the defense —

Joseph Forer:

Was not known, he tried to find out what there was against her in the Juvenile Court of Prince George’s County and Montgomery’s County because he knew the boy’s story and he was refused to access for the record.

William J. Brennan, Jr.:

Did the state’s attorney know that fact too?

Joseph Forer:

He testified that he did not.

Now, let me come to the question of the knowledge.

Earl Warren:

May I ask you one more question, is there any in that original petition for make a reward of their sex background to that?

Joseph Forer:

I don’t know.

Earl Warren:

Being beyond parental control?

Joseph Forer:

I just don’t know.

I mean I don’t know what was I the petitioner’s or if the petitioner did that.

Those petitions are usually stereotype mimeographed sheets.

Lewis F. Powell, Jr.:

So whatever it is, it was not produced —

Joseph Forer:

What?

Lewis F. Powell, Jr.:

— it was not produced by the post conviction proceedings?

Joseph Forer:

No, they — the judge — we have subpoenaed the records and the judge wouldn’t let us — Judge Moorman wouldn’t let us put it in evidence and find that we got it in stipulation.

Lewis F. Powell, Jr.:

You mean this being juvenile court proceedings, they were not released, filed?

Joseph Forer:

They could have been produced by — if the court allowed it we had got a written permission —

Lewis F. Powell, Jr.:

Which court?

The juvenile court or the –?

Joseph Forer:

Both courts.

We have got a written permission from the juvenile court of Prince George’s County and a ruling which I cannot to this day understand and which I cannot explain the basis for, Judge Moorman refused to introduce an evidence so then we finally managed to get in the key point by means of stipulation.

Let me now come to the knowledge of the prosecution.

The Court of Appeals found that the prosecution consisted of the state’s attorney and the investigating police.

For present purposes, that means party who was the state’s attorney and who tried the case and Lieutenant Whalen who was the detective in-charge of the investigation.

Potter Stewart:

The ruling of the Court will include the — all of the police in that county and all of the staff of the prosecutor.

Joseph Forer:

That’s right, but the only knowledge that — but in fact all of the knowledge–

Potter Stewart:

Was in these two individuals.

Joseph Forer:

Was in this two.

Potter Stewart:

In this case.

Joseph Forer:

And the only way we established knowledge was from their own lips.

Now, Kardy the state’s attorney and Whalen the head of the detectives knew the evidence chose this and they were found by the Court of Appeals and by the trial court to know about the attempted suicide and about the second rape accusation but they knew them only in a general way and they didn’t know the details and all the subsidiary evidence for the simple reason that they were not interested and made no effort to investigate.

Kardy for example testified that he knew that he know that Joyce had taken this overdose of drugs and he assumed that it was intentional and motivated.

He happened to have their motive but he assumed that it was a suicide attempt.

Earl Warren:

Kardy was who?

Joseph Forer:

What?

Earl Warren:

Kardy was who?

Joseph Forer:

The state’s attorney.

He also knew that Joyce have been involved in an allegation of another rape and that nothing had come of this allegation, not even the produce formal charges.

But he hadn’t bothered to find out and didn’t know that the allegation was made by Joyce because he didn’t bother to find out.

And the same thing was true of Lieutenant Whalen, the detective lieutenant.

Although after all, although he didn’t know immediately that Joyce had instigated the charge, he got the information of this second alleged rape from the girl’s mother.

And that by itself should indicate, it seems to me a definite possibility that the complaint originated with the girl.

Now —

Potter Stewart:

That was a telephone call from the girl’s mother?

Joseph Forer:

Yeah, he got a telephone call from the girl’s mother and —

Potter Stewart:

And then learned that it happened in a different county and said that –?

Joseph Forer:

Yeah, that’s right.

And he said, don’t bother me with that.

Now, in short, they did know, they know she had taken this overdose, they assume that the suicide, they knew that she was involved in the second rape accusation.

Now if you limit, if you limit the state’s knowledge or the responsibility of the state merely to what they knew they actually knew without more, we say that under the authorities and under any kind of reason, that was material in and of itself.

They knew there was a suicide attempt or they knew enough about it.

They knew there was a second rape accusation which apparently was false and they had very good reason to believe that Joyce have instigated it.

And that would be enough.

But I want to go further, there’s another grounds for materiality here.

Not only would this evidence have been enough in and out itself.

But if you assume as the Court of Appeals of Maryland did that there is a duty to divulge anything that is possibly material and that this duty was breached here.

Once you have a breach of a duty to divulge, then when you get to the question of whether the breach of the duty was prejudicial, you’re past the question of breach which means whether or not the evidence was material.

Then you should look, not only at the value of the precise things known to the prosecution and not divulge but also at what the defense was in all likelihood and in years surely would have discovered if the duty had not been breached.

If Kardy and Whalen had told the defense what they knew, any diligent defense would have checked with the police department of Prince George’s County and would have gotten the whole story that Lieutenant Wheeler had knew and would have had everything else.

And this was a point made by the dissenting opinion.

The dissenting opinion said, in order to determine materiality, first, what they actually knew was itself material, but secondly that having breached the duty of divulgence of disposure that this information was material because of — it would have been a great value for the defense by further investigation.

Now, we have an alternative theory for — on the question of knowledge, this is an alternative theory with regard to category one of the suppressed evidence that is the history of the false rape accusation and the attempted suicide.

But it is the only theory that we have with regard to the nondisclosure of the fact that she was in this near probation status.

We say that under certain circumstances for the purposes of the suppression doctrine, it is right to charge the prosecution, not only with what they actually knew but also with constructive knowledge of what they should have known if they had conducted an unbiased investigation and if they had shown the most rudimentary diligence in the performance of the obligation that they owe to the state as public officials and to all accused to investigate allegations of crime with some kind of elementary diligence.

And we say here that this duty to the public was breached.

Hugo L. Black:

You mean that it’s the duty of the prosecuting office to investigate crime, find out what they might possibly find out and that failing to investigate crime they can be held?

Joseph Forer:

No, I —

Hugo L. Black:

It can be held that they are giving the information, can be held if they denied due process?

Joseph Forer:

No, I think that overstates my position Justice Black.

I say, well first of all, the prosecution here did investigate.

In the course of the investigation, they came upon evidence which was indicative of innocence.

Instead of performing the duty to conduct an unbiased investigation, they turned their back on the others.

They deliberately closed their eyes —

Hugo L. Black:

Is their duty to these defendants to conduct an unbiased investigation?

Joseph Forer:

Are they certainly do.

They owed a duty to the defendants and they owed a duty to the public.

And at minimum that duty is not to deliberately close their eyes to exculpatory or possibly exculpatory evidence in order that they may then have an excuse not to turn the evidence over to the defense.

Now, all I can say Justice Black is that there is a minimum of authority on this point.

This Court hasn’t spoken on that point.

There are a few lower court cases which do hex the prosecution with constructive knowledge because it was information which they should have known.

Now, let me rehearse the circumstances here which called upon them to make some kind of an investigation.

First, the medical testimony, it was indicative of intercourse but not of forcible penetration.

You have a 16-year old girl alone in the woods late at night with a 21-year old man, originally with three men.

She ran a great distance of 30 feet to escape being ravished.

She was first to offer sex to John Giles.

She didn’t resist, she didn’t expostulate, it was capital offense, the defense was indigent, the information was — the indicated information to check was readily available to the prosecution and the police.

Hugo L. Black:

Did you say out in the woods?

Joseph Forer:

What?

Hugo L. Black:

Out in the woods?

Joseph Forer:

I beg your pardon?

Hugo L. Black:

I say did you say out in the woods?

The girl was out in the woods?

Joseph Forer:

Yes, there’s a little dirt path that was right down to the river —

Hugo L. Black:

And it’s about12 o’clock?

Joseph Forer:

It was about midnight.

Hugo L. Black:

What do you say they were doing there?

Joseph Forer:

Who were doing?

The petitioners?

Hugo L. Black:

The defendant.

Joseph Forer:

They had been fishing and swimming in the river.

As they came out of the river they had to go past the car.

Potter Stewart:

The evidence say they had also been drinking weren’t they?

Joseph Forer:

Drinking, they had some beer.

Yeah well, I think they had had one 6 –pack of beer for about four people.

Earl Warren:

Mr. Forer, did I understand you did say that at the trial, she testified that she was the first one to speak of sex to the boys and then she offered to have intercourse with one of them?

Joseph Forer:

She testified that when she and John Giles were alone in the wood, that she said to him that she would like to have them to have intercourse with her if he helped her get away.

This was her own testimony and since she never — what?

Hugo L. Black:

Hope to get away with?

Hope they’d let her alone.

Joseph Forer:

That’s what she said.

But, may I point out that since she never told John Giles that she had a mental reservation, or that she had changed her mind.

The alleged rape by John Giles comes down to a breach of contract for lack of consideration that he didn’t have to get away.

Hugo L. Black:

You don’t claim do you that the rape –?

Joseph Forer:

What?

Hugo L. Black:

You don’t claim do you that even the rape was less reprehensible if it was a rape because of these facts and circumstances which you portrayed to us?

Joseph Forer:

No, it wasn’t a rape at all.

Hugo L. Black:

Well, if it was a rape, was it made any the lesser rape because of the fact that she had had intercourse with other men?

Joseph Forer:

No, but of course under the law of Maryland, the unchastity of a woman who has been raped is admissible at the conviction for the purpose of determining sentence but we’re not going into that here.

But if she was raped, she was raped, our point is that she wasn’t raped and that the state suppressed evidence which to any reasonable mind would have corroborated and made plausible the testimony of these two young men who otherwise had nowhere else to turn.

Hugo L. Black:

Did you have any evidence or did they have any evidence that she have ever had the intercourse?

Joseph Forer:

They?

Hugo L. Black:

Than the current person before?

Joseph Forer:

No.

Now, let me stay for a minute on the policy consideration.

It said well, this is the past of nondisclosure.

Joseph Forer:

The prosecution doesn’t have to be the defense counsel.

The prosecution can’t be expected to disclose information available to the defendant.

Now, the information here was not available for the defense.

And the state is in a position where it must disclose.

It not only has superior resources it has an obligation to see that justice is done, as all prosecutors always say, make luncheon speeches but do not necessarily carry out.

And the state’s nondisclosure of exculpatory evidence can’t be excused even if there is as there was not here negligence on the part of the defense.

Supposed both were at fault, it’s a different kind of fault, where the fault is refusal to — is a concealment, a withholding of the information that you have, on one side the prosecution side and the fault on the defense side is a failure to acquire the information which it could have gotten if it had tried.

Where the prosecution fails to disclose information that it has the best you can say for it is that it is deliberately exploiting a mistake or negligence by the defense counsel in order to try to get his client sent to the chair or convicted for a long time.

And even if the prosecution isn’t being malicious about it then at least they had the last clear chance and tort terms and they didn’t take advantage of it nor is this passive nondisclosure.

The vice is not the failure to disclose.

The vice is prosecuting without failing to disclose.

And there was nothing passive about the prosecution in this case.

And this nondisclosure was no more a passive thing than a stationary part of a moving machine.

I would like now to turn to my equal protection argument.

Abe Fortas:

Mr. Forer, suppose this is not a rape case, but suppose it were a case of grand larceny and a witness testified against the defendant.

And let’s suppose the state knew that this witness had some sort of a record, or had been arrest let’s say without being convicted.

And this witness had himself arrested.

Is it your feeling that the state is required to disclose information of that character?

Joseph Forer:

No, I don’t — obviously the state isn’t required to disclose a trivial matter.

It’s a matter of degree.

I haven’t said a stage of disclose everything.

Now maybe in time there will adopted the full discovery and rules that Justice Brennan advocated in the speech he made in the Washington University.

That’s different, I’m not talking about that.

I’m talking about cases where the prosecution has breached its duty because it has suppressed something in significant.

I want to talk —

Abe Fortas:

So it is a matter of degree?

Joseph Forer:

Of course it is.

Abe Fortas:

No.

Joseph Forer:

Actually listed in the word material.

Abe Fortas:

Right.

Abe Fortas:

Now, do you make a distinction between the two incidents that are here involved and into —

Joseph Forer:

You mean the two categories?(Voice Overlap)

Abe Fortas:

— degree that is to say, what are the given on the court proceeding, I think that it was free the alleged rape incident that was the point of the alleged rape incident.

Joseph Forer:

The point is —

Abe Fortas:

The other incident was after the alleged rape.

Joseph Forer:

No, at the time of the alleged rape, at the time when she was supposed to be saying that she was on probation, she was at that very moment in this status of near probation.

Abe Fortas:

I understand that, I say do you make a distinction between the state’s duty to disclose events or conditions or circumstances that existed at the time of the alleged crime.

On the one hand and the state’s duty on the other hand to disclose circumstances which arose subsequent to and might arguably or conceivably shed some light on the prosecuting witnesses and mental condition.

Joseph Forer:

I don’t see how you can draw any winched phonological line, the only question — the only role that chronology might have is the effect the materiality, but once you grant the information of material, then it should be disclosed regardless of the (Voice Overlap)

Abe Fortas:

Material, of course there was material to what I suppose.

Joseph Forer:

But the material and the (Voice Overlap)

Abe Fortas:

Because here you’re not — this is not a — what you’re saying is this — the information in your view of the case is material to the credibility of the witnesses, isn’t that right?

Joseph Forer:

It was the material for the credibility of the witnesses but it was also a material as affirmative corroboration of the defendant’s story.

That’s particularly true of the probation evidence.

Yes Justice Brennan.

William J. Brennan, Jr.:

I gather what you’re saying is that the prosecution knows at the time of trial when it’s presenting its case and anticipate the defense of the defense opinion.

Joseph Forer:

I’m sorry, I didn’t hear that.

William J. Brennan, Jr.:

You’re talking about the time of the trial rather than the time of the actual alleged rape.

Joseph Forer:

Well, in most instances, that’s right but I mean if there’s going to be a disclosure it should be made before the trial is over.

Now, there may be instances where the prosecution is justified in delaying disclosure.

But I just don’t see how it’s possible to say that a prosecutor can actively seek to send people to the chair as we did here.

In the mean time, keeping in his back pocket all the way to the very end information which was critical and which might have shown their innocence.

Potter Stewart:

Well now, the prosecutor and the police of this county for this prosecution and trials in place did not know of this so called near probationary status, did they?

Joseph Forer:

Lieutenant Whalen testified that he did not know.

We thought he did.

Potter Stewart:

But the evidence in this post-conviction (Voice Overlap)

Joseph Forer:

That’s right, but he should have known.

Potter Stewart:

Well, that’s your argument.

Joseph Forer:

And believe me, if the social status of these people have been different he would have known rather than —

Earl Warren:

Mr. Forer before you get on to your other point, do you said that the prosecutor ridiculed the idea of her being on probation, would you elaborate on that a little and how it came up and what he said?

Joseph Forer:

For instance, he said to John Giles, remember this was after Joyce had already denied she was on probation.

And John Giles himself was on probation.

So he said, so you went in the woods and you were on probation and she was on probation now what did you two probationers talked about?

And then he kept talking about probation, probation, probation, rubbing into the jury the fact that the evidence was that she wasn’t on probation.

It’s very much like that Alcorta against Texas case in which the state, they used evidence which was literally true by which because it failed of being supplemented by additional evidence created a false impression and that’s what happened here.

Hugo L. Black:

Did the record show what Giles is on probation for?

Joseph Forer:

I guess if you read the whole record, you will that somewhere there’s a reference to the fact that he had a prior criminal conviction for housebreaking.

And presumably that was his only criminal conviction presumably he was on probation with that.(Voice Overlap).

Hugo L. Black:

Mr. Forer, I can’t just follow that of course a step further —

Joseph Forer:

No.

Earl Warren:

Did the prosecutor indicate in any way the square was not on probation?

Joseph Forer:

Oh yes sir.

Earl Warren:

Well, what you told has been saying that.

Joseph Forer:

Oh yes.

Earl Warren:

What did he say?

Joseph Forer:

He asked the girl, Joyce, on redirect examination.

You see the way it came up Joyce of course testified before the defendant.

The defense counsel in cross-examining her, said to her, “Didn’t you say to them that you were on probation and would have to claim rape?”

And she said, “No, I didn’t say that.”

Then on redirect examination, the prosecutor said to her, “Were you on probation at that time?”

And she said, “No.”

Then when the petitioners testified that she had told them she was on probation, then on cross-examination of the petitioners and we give the references in our brief, he ridiculed that testimony.

Whatever term I have left, I will reserve for rebuttal.

Hugo L. Black:

What did the stipulation about the —

Joseph Forer:

I beg your pardon?

Hugo L. Black:

What’s the stipulation of that probation attribution?

Joseph Forer:

The stipulation was that at the time of the episode in the woods that was pending in the juvenile court of Prince George’s County a petition for her commitment and in connection with that petition that was pending a recommendation by the court’s case worker that Joyce be put on probation.

Lewis F. Powell, Jr.:

That was true.

That was true, wasn’t it?

Joseph Forer:

What?

Lewis F. Powell, Jr.:

I said that’s all that happened in that particular case?

Joseph Forer:

Oh yeah.

Lewis F. Powell, Jr.:

That probation thing?

Joseph Forer:

Yeah, but there was a reason for that.

What happened was that the Montgomery County police took Joyce and had her committed to the — to an institution –had her committed to a school the Montrose School during prior to and during the trial.

By the Montgomery County Juvenile Court and the Montgomery County Juvenile Court then later after accepting jurisdiction bring her in this institution temporarily until after she had testified then discharged her on the grounds that they didn’t have territorial jurisdiction.

William J. Brennan, Jr.:

What was the basis of our commitment?

Joseph Forer:

Basis of what?

William J. Brennan, Jr.:

Of our commitment by Montgomery County.

Joseph Forer:

The basis of her commitment was a petition brought by or instigated by Lieutenant Whalen in which — would you give me a moment — if you will look on page 275 of the record, there is the proceeding in the Montgomery County Juvenile Court now if you look at the case hearing —

William J. Brennan, Jr.:

This apparently is September 5, is that right?

Joseph Forer:

Yes, this hearing was held the same day she got out of the hospital August 5.

William J. Brennan, Jr.:

September.

Joseph Forer:

September 5, same day she got out of the hospital after the suicide attempt.

Hugo L. Black:

Before the trial.

Joseph Forer:

What?

Hugo L. Black:

Before the trial.

Joseph Forer:

Oh yes, and the testimony of the post-conviction proceeding of Lieutenant Whalen was that he would arrange this hearing in Montgomery County.

If you’ll look at the very top it says Joyce Roberts and it gives her address at Hyattsville, Maryland which everybody knows is in Prince George’s County.

If you look at — on page 277 you’ll see that on April 30th, the case was closed on the grounds that she is no longer residing within the jurisdiction of the court although everybody knew that she was not residing within the jurisdiction of the court to begin with.

And what happened here was that while she was — before this case was dismissed in Prince George’s County the charge against her was dismissed on the ground that jurisdiction had been taken by Montgomery County.

So, that’s why nothing ever came of the case in Prince George’s County.

Hugo L. Black:

Is it your position if she was or was not on probation?

Joseph Forer:

She was not actually on probation, she was in trouble which is one of the pieces of evidence and she was in a status where she could describe this probation and did.

Hugo L. Black:

Could have been put on probation, might have been but she wasn’t.

Joseph Forer:

She wasn’t but she referred to it is probation and the important thing was what she was saying when she said that she was on probation and she certainly was in trouble.

Thank you.

Earl Warren:

We give your last five minutes questioning so you may have five minutes for rebuttal.

Joseph Forer:

Thank you very much.

Warren E. Burger:

Mr. Needle?

Donald Needle:

Mr. Chief Justice and may it please the Court.

Because all of the importance really of the facts of this case I think because of the gloss which the petitioner’s counsel has perhaps put on those facts that should be reviewed.

We have to keep in mind that what we’re talking about number one is information known to persons in two counties of the State of Maryland we’re talking about information number one known by the state’s attorney Leonard Kardy of Montgomery County.

We’re talking about information known by Lieutenant Whalen the chief investigator of this case who was also in Montgomery County.

But the most important information known is the information known in this case by Sergeant Wheeler of the Prince George’s County police.

The other most important information in this case also Prince George’s County information is located number one, in the Prince George’s County hospital record; and number two in a juvenile court record of Prince George’s County.

Now, the basis of our brief really is that this case has got to analyzed in proper perspective.

The first thing that has to be ascertained is what did the prosecution includes know, or what is the prosecution charge for it.

Who is the prosecution?

Now the Court of Appeals of Maryland found even a more broad rule that has been announced in the past, the Court of Appeals said that the prosecution would consist in this case of Kardy the state’s attorney and his assistance and the police of Montgomery County.

Now, notice that is the police of Montgomery County.

We argue that information known not only by Kardy in this case by perhaps known by some other officer in Montgomery County even under the Court of Appeals opinion could be said by the defense analogy in this case to be imputable to the prosecution.

Now, we maintain that our own Court of Appeals was even too broad that what should be known by the prosecution should be the knowledge of the state’s attorney and additionally the knowledge of the investigating officers.

Now, we maintain that if the rule is any different, what — where are we going and what does it mean?

Now, Montgomery County has a population of approximately 500,000 people the same with the other adjourning county.

Or let’s look at Jersey City, New Jersey, and let’s look at New York City.

Is every police officer of either of these adjourning municipalities jurisdiction to know number one, who are to be the state witnesses?

Who has made a complaint of crime and is to testify in the case?

Are all state or municipal police officers to know that fact much less whether or not any particular piece of information that they might have would be useful if they don’t know the facts of the case?

Much less, what, excuse me — much less whether a particular piece of information that they might have about a witness what if you tell what it would be.

So therefore, we claim that the only legitimate rule which can be passed, the only practical test of prosecution knowledge can be that of actual knowledge of the prosecutor and his assistants and his agents.

And secondly, of those officers that investigated the case.

Now —

Abe Fortas:

Can you tell us what you mean by the prosecutor?

Donald Needle:

By the prosecutor sir I mean in this instance, the prosecutor of Montgomery County, the jurisdiction of the case.

Abe Fortas:

You mean —

Donald Needle:

He and his agents or assistants plus Montgomery County police report.

Abe Fortas:

Well, let’s suppose that the top state’s attorney to tell whatever it is and Montgomery County — suppose the state’s attorney for Montgomery County I don’t know what it’s called, will include him and then would you include the file staff all of the lawyers on the file staff along with the lawyers who investigate it.

Donald Needle:

Yes sir.

Abe Fortas:

But you would include the head of the — would you include the head of the office whether or not he was engaged on the particular case that’s when I’m really asking (Voice Overlap).

Donald Needle:

Well, yes sir.

Of course the question is moot because his assistant is the prosecutor of a given case.

So the question of who is in compass within the term the prosecution I say would be the state’s attorney and all of his assistants.

Abe Fortas:

Whether or not the state’s attorney was actually engaged to —

Donald Needle:

Yes sir I would say too.

Abe Fortas:

But so, you had made a distinction between that and the police.

Donald Needle:

Well —

Abe Fortas:

In other words, so far as the police I’m really just trying —

Donald Needle:

I think —

Abe Fortas:

I’m trying to get exact what you are pointing and I assume we’re going to talk about — I understand what you said, you would place, you would impute our views as a practical knowledge of dispute.

Whatever is known by the state’s attorney, the attorney for the county isn’t it?

Donald Needle:

Yes sir.

Abe Fortas:

And the trial staff of the lawyers and the investigating staff, isn’t that right?

Donald Needle:

Correct.

Abe Fortas:

But, if I correctly understood you so far as the police are concerned, we would include only the police who were actively engaged in that particular investigation.

Donald Needle:

No sir.

We’re splitting here really talking about —

Abe Fortas:

Or maybe I adhere to you but — (Voice Overlap).

Donald Needle:

If the state’s attorney has not in fact prosecuted the case at trial, then he of course would never be charged with suppressing evidence.

It would be the person that prosecuted the case that would be charge would suppress it.

Abe Fortas:

Now, I want to know whose knowledge we’re talking about not who has charged the suppression.

The United States attorney has knowledge about a prosecuting witness which the attorney who is actually in charge of the specific trial of the case is not held.

Is the knowledge of the state’s attorney in your view, to be chargeable to the prosecution?

Donald Needle:

I would say no sir, would that interest in the case is of the prosecutor and any information that his subagents might have given him and would have aide him in the prosecution.

Abe Fortas:

Well I think now I’m getting to understand you.

I think now what you’re saying is that you’re entitled to look only to the knowledge possessed by the officials who are specifically engaged in the trial and investigation of the case excluding those officials who may have a nominal official responsibility.

Donald Needle:

Yes sir.

Abe Fortas:

Have I got your position (Voice Overlap)?

Donald Needle:

Yes sir.

Potter Stewart:

That’s a narrower view than that laid down by the majority in your Court of Appeals.

Donald Needle:

Yes it is.

Potter Stewart:

So why do you have to ask us to narrow the —

Donald Needle:

No —

Potter Stewart:

— Maryland Court of Appeals view accepting that view, the breadth of that view, they’re still decided in your favor, didn’t they?

But why do you ask us to narrow it?

Donald Needle:

We don’t ask you to narrow it sir but we point out in our position to the defense claim that our Court of Appeals was in error.

That the Court of Appeals actually (Voice Overlap).

Potter Stewart:

It was decided in your favor but why do you have to argue with an error?

Donald Needle:

Well, we’re not saying it was.

We’re pointing out is that the Court of Appeals’ case was that we can say that the Court of Appeals was harder on the prosecution than it had to be and it gives us perhaps a greater course to complain that it would give the defense to complain because of the future possible implication.

Abe Fortas:

Well the only respect in which Court of Appeals is broader in the view that you think is correct is to include all of the police in Montgomery County, is that right?

Donald Needle:

I think that implication can be read into the language of the Court of Appeals.

But of course —

Abe Fortas:

It is very important for us to know just what the Court of Appeals decided and as I understood your prior statement, the Court of Appeals said that the prosecution is chargeable with the knowledge that Mr. Kardy and his assistant and with the knowledge of all of the police in Montgomery County, is that correct?

Donald Needle:

The course came out with an odd statement that the prosecution should be charged with knowledge of the state’s attorney and his assistants and of the police department of that jurisdiction which has the control or the jurisdiction to hear the case.

And that in the next sentence, they said, this would mean applying to this case that our interest is in the knowledge of the state’s attorney Kardy and of Lieutenant Whalen who were the only or Whalen was the only Montgomery County officer actually involved.

Now, I would like to point before getting further into the legal argument of this case that the state’s evidence was not solely the evidence of Joyce Roberts against the evidence of petition.

And our case was not an uncorroborated case.

The evidence was clear.

This Joyce Roberts only 16 years old did go out to Patuxent River area at midnight.

And she went out there with three boys.

But the evidence is clear that she went there to go swimming and others were to meet them there.

That when the others didn’t come within minutes, they left.

Joyce Roberts and the three boys started to go.

Their car then ran out of gas.

Two of the three boys out with Joyce Roberts in that car left to get gas, leaving Joyce Roberts and Stewart Foster in that car.

It is at this point that the Giles boys who had been swimming and fishing came upon the scene and they saw the car.

And of course this is where the evidence becomes conflicted.

The Giles boys testified in the trial that the reason that they broke into that car, the windows were locked — the windows were closed, the doors were locked.

But the reason why they shattered those windows of that car and drags Foster out of that car and not being conscious was because they claim that Stewart Foster had a gun in that car.

Donald Needle:

Now here is Stewart Foster in that car, Joyce Roberts in that car and here are three persons that are opposed to this one other man.

Now, the complete and credulous proposition that was forwarded by the defense just didn’t support the proposition.

So you have a demolished car to corroborate the state’s case.

You have Stewart Foster found at two o’clock in the morning by the first police officer who arrived on the scene, you find him bloody, you find him hysteric, you find that he’s taken and rushed to the hospital and given eight stitches.

You find Joyce Roberts lying on the ground, well this is the testimony of the first police officer on the scene.

Earl Warren:

You find what lying on the ground?

Donald Needle:

Joyce Roberts sir, the prosecuting witness.

The first police officer that arrived on the scene testified of what he found and described Foster’s condition which I have just related and then described what he found as far as Joyce Roberts’ condition.

She was found lying on the ground with her blouse on open in a semiconscious condition.

The police officer and Stewart Foster had to pick Joyce vilely up off of the ground and help her get dressed.

She was taken to the hospital.

Now, was there any evidence in the hospital record, of any force?

Well, the answer is yes.

The doctor testified for the state at the trial that there were operations of the shoulders, of the legs, and of the neck of the prosecuting witness.

They further testified that there were leaves, there were dirt and grass adherent to the back of her body.

There were numerous spermatozoa cells found in the vagina.

Now, we maintain that this is not a case of uncorroborated testimony of a prosecuting witness which has served now to place three persons in jail that the state’s case was fully corroborated.

Now, the prosecutor knew this evidence ahead of time.

In addition to that, the prosecutor spoke to and interviewed Joyce Roberts.

He spoke to her before the Giles case.

He spoke to her before the Johnson case which was held there.

He had an interview with the defense counsel, Mr. Steven Prescott.

He told the defense counsel that as far as he was concerned, this girl was 100% that there was nothing as far as he knew that would cast any aspersions whatsoever on her credibility.

Now, the Court of Appeals of Maryland found that by the Giles version of this incident to their own counsel.

Their own counsel must have known, number one, that this girl was a sexually promiscuous girl and that her background was not of the finest.

There was evidence in other words which the defense counsel knew wherein the Court of Appeals said which should have been investigated.

Mr. Forer has named certain things the defense of the case was that Joyce Roberts had told these defendants that she had that same week engaged in intercourse with 16 other persons.

Now, if that was true, and if the defense counsel knew that, was there any obligation on the defense counsel to go and to find out whether or not there was any truth in this assertion. Now, what did the defense counsel do?

William J. Brennan, Jr.:

The defense counsel was an assigned counsel?

Donald Needle:

Yes sir.

William J. Brennan, Jr.:

Did that include assignment as an investigator to help her?

Donald Needle:

There was no request for investigators.

William J. Brennan, Jr.:

Would there have been assigned if he did the test under Maryland?

Donald Needle:

I don’t know Your Honor of any —

William J. Brennan, Jr.:

He was assigned (Voice Overlap).

Donald Needle:

Yes sir.

And he was assigned in September and had approximately three months to prepare for this case.

Now, what was the preparation?

Number one, he claims that he went to the Montgomery County juvenile court because the petitioners had allegedly been told by Joyce Roberts that she was on probation and that if she was caught she would have to claim rape.

They went to the juvenile court because they had an indication that the juvenile court might have something. But they weren’t allowed to see the juvenile court records.

Why?

Because as I have pointed out in our appendix, Maryland Rule 922 said that in order to see a record of the juvenile case, you must seek and obtain the permission of the judge.

Now, it is admitted that this was not sought.

Now, wouldn’t that in and of itself the simple matter of getting a judge’s signature permission to see a record, does this in itself show a lack of diligence?

William J. Brennan, Jr.:

But was there any record in Montgomery County?

If he got the judge’s permission with nothing to see about this dealing with Montgomery.

Donald Needle:

If you will look at —

William J. Brennan, Jr.:

Was there at that time new?

I thought this proceeding was pending in Prince George?

Donald Needle:

No sir.

The record which is the petitioner’s exhibit number three in which I had pointed out as for verification which Mr. Forer pointed related to a hearing on September the 5th in Montgomery County.

William J. Brennan, Jr.:

In Montgomery County.

Donald Needle:

Yes sir.

Now, this record would have been available had the proper procedural pattern been followed.

Hugo L. Black:

They’re claiming that there was such a case.

Donald Needle:

There is no direct testimony in the record sir, one way or the other.

Lewis F. Powell, Jr.:

Well, you based this on the fact that his client have told him that she have said she was on probation.

Donald Needle:

Yes sir.

But when it went through Montgomery County Court they said that if there was such a case that he could not see the record without a judge?

Donald Needle:

No sir.

Donald Needle:

This is not in the record.

As I said the record is not clear.

The only testimony we have on this point is that of Mr. Prescott himself.

Now, he did not deny that there was a record, or he did not state that he was told that there was no record there.

Earl Warren:

What did he state?

Donald Needle:

He stated sir that he attempted to see the record but could not and that was — that is the only thing that we have here before us as far as testimony concerning this point.

Earl Warren:

Did he say why he could not?

Donald Needle:

No sir, he didn’t go further.

Hugo L. Black:

Where was this testimony given?

Donald Needle:

This is at the post-conviction hearing sir.

Hugo L. Black:

At this particular conviction that we have assigned?

Donald Needle:

Yes sir, that’s correct.

Hugo L. Black:

And who was that witness?

Donald Needle:

This is Mr. Prescott of the defense counsel.

William J. Brennan, Jr.:

Then he testified the post-conviction hearing?

Donald Needle:

Yes sir.

William J. Brennan, Jr.:

Not at the trial?

Donald Needle:

Oh no, not at the —

William J. Brennan, Jr.:

The trial was December 1961.

Donald Needle:

That’s correct.

William J. Brennan, Jr.:

When was the post-conviction hearing?

Donald Needle:

Post conviction hearing sir was in July of 1963.

William J. Brennan, Jr.:

And it’s then that the attorney testified.

Donald Needle:

Yes sir, that’s correct.

Hugo L. Black:

Where did the (Inaudible)?

Donald Needle:

The July of 1964 sir.

Hugo L. Black:

Of Mr. Prescott?

Donald Needle:

That’s correct.

Hugo L. Black:

Who put him on the stand?

Donald Needle:

He was put on the stand by the petitioner sir.

Hugo L. Black:

I don’t suppose we are going in with that except what he said.

Donald Needle:

That’s correct.

Hugo L. Black:

But they told him he couldn’t get the record.

Donald Needle:

That is correct too.

Mr. Prescott’s testimony if Your Honor please appears —

William J. Brennan, Jr.:

Page 212, doesn’t it?

“No, we attempted to obtain the record from the juvenile court here in Montgomery County and Prince George County but they were not released for us.

We were not able to see those.”

Donald Needle:

That is correct, and that is the extent testimony with that particular court.

Now —

Earl Warren:

I suppose we’re entitled to infer when he said they were not released to us if they were refused.

Donald Needle:

I would say that sir, but I would say that you could also infer from that could then had knowledge that there were in fact reference concerning this girl.

Now, once he knew that did he — I’m sorry.

Hugo L. Black:

Did he make any effort to get the record if he tend to file this up on the merits?

Donald Needle:

Well, yes, this is what I’m talking about here.

He —

Hugo L. Black:

I may understand the trial came after the trial judge but I went over there and couldn’t get the record nor he can get a trial.

Donald Needle:

No sir, does he did not, nor he did ask the state’s attorney for assistance.

Now, there’s evidence in the record for Mr. Kardy’s testimony at the post-conviction hearing that had a request been made of him for assistance, he would have gotten the trial judge’s permission on behalf of the defense counsel, so that these records would have been made available.

Now, this is the juvenile court record.

Now, Prince George’s County hospital record would show that Joyce Roberts had attempted suicide.

This was the admitting diagnosis that showed also that this episode is related to a rape several weeks ago.

Now, Prince George’s — this Prince George’s County hospital record was admittedly unknown to anyone who may be considered within the term “the prosecution.”

The only — there is in fact no evidence that anyone even including the Prince George’s County sergeant that would be Sergeant Wheeler who visited Joyce in the hospital never saw that hospital record.

So that hospital record is of Prince George’s County hospital which was discovered three years after this trial by the defense counsel.

In which they’re claiming now that the prosecution should have noted that and should have discovered.

William J. Brennan, Jr.:

Excuse me, getting back if you will of these juvenile court records.

Donald Needle:

Yes sir.

William J. Brennan, Jr.:

I noticed that Mr. Prescott was asked the question by Mr. Kardy in the cross-examination.

At the top of page 215, Mr. Prescott said he made efforts in Montgomery County and Prince George’s County in regard of the juvenile court, so on that basis you knew there was some action of proceeding in both jurisdiction.

William J. Brennan, Jr.:

And to know they didn’t even go so far as to tell me that.

They just told me that I could not have the records that they have there.

The information I got from sending that came from Giles (Inaudible).

It was not suggested that he knew something and he asked for them but they wouldn’t let them have them.

I don’t know who they would be.

Donald Needle:

Well, the they in there sir is the juvenile court authority because the juvenile or the clerk of the juvenile court who under Maryland Rule 922 which I set out in our appendix was not authorized.

William J. Brennan, Jr.:

Yes, but he says here that both as to Montgomery and Prince George’s as I understand that answer they didn’t admit that there had a proceeding in Montgomery County whoever they may be.

I suppose that you can put authority.

They wouldn’t let him see any record about her.

Is that what he said?

Donald Needle:

That’s correct.

William J. Brennan, Jr.:

Well, and that’s the only evidence here available.

Donald Needle:

That is, yes sir.

Now, the second matter —

Earl Warren:

Mr. Needle before you leave that, again, may I ask you the question I asked with Mr. Forer, do these proceedings that we have just been talking about indicate any sex background for this girl.

Donald Needle:

The juvenile court proceedings?

Earl Warren:

Yes.

Donald Needle:

Well, if Your Honor please, the exhibit which is in the record is not in evidence.

Now this is petitioner’s exhibit number 3 for identification.

William J. Brennan, Jr.:

What page is that on?

The one Mr. Forer referred to us earlier.

Donald Needle:

Yes sir.

William J. Brennan, Jr.:

Page 270 to 275 (Voice Overlap)

Donald Needle:

Yes sir.

Now you notice that this is the petitioner’s exhibit three for identification.

Now, this was never offered into evidence —

Earl Warren:

I didn’t ask that.

I asked you, I assume by this time you and the state must know what those probation papers disclosed.

Now, I ask you if those that petition that was before the Montgomery Court the juvenile court as the time the counsel asked to see it have shown that this girl had had a background of sex.

Donald Needle:

This as far as my —

Earl Warren:

Well how can you say that?

Donald Needle:

— refreshing my recollection of this exhibit —

William J. Brennan, Jr.:

How can you say that right in the middle of it?

This is September 5, the Court advised that this came to this Court from the state’s attorney’s office because the difficulties at home and also she was a state witness in a case with two adults at charge.

And it seems her situation was one where she has been on the hospital for taking pills and that’s concerned about it.

Donald Needle:

Well this is correct sir, but this has nothing about sexual promiscuity which is the (Voice Overlap).

William J. Brennan, Jr.:

Well, what’s that charge involving those two of those that the one in August which involves the second alleged rape?

Donald Needle:

The point is as far as prosecution knowledge of this report there was none.

Now, Lieutenant Whalen testified that although he attended this particular hearing on September the 5th, now Whalen is again from Montgomery County and in charge of this investigation.

Although he attended that hearing he was never in the courtroom except when he testified and Whalen never saw this report and it is admitted in the petitioner’s brief that no one or the prosecution ever saw this report.

So in direct answer to your question sir that this report show that this girl was sexually promiscuous, the answer is no.

Earl Warren:

I didn’t ask you whether she was sexually promiscuous but she was — it was stated, I understand this record that she was in danger of becoming a juvenile delinquent because she was not amenable to parental discipline.

And that therefore she should be placed on probation.

Now, was that — was the conduct on her part was complained out there sexual looseness or what was it?

Donald Needle:

No sir.

If Your Honor pleases the record on this —

Earl Warren:

I’m not talking about the record because I know they couldn’t get it in there and I’m asking you and certainly you must know the state must know by this time what was in that petition and what was in those proceedings.

Now I’m going to ask you if it did have a sexual background.

Donald Needle:

No sir.

Earl Warren:

It did not?

Donald Needle:

This was brought by Mrs. Roberts, the mother of Joyce Roberts.

Earl Warren:

Yes.

Donald Needle:

Who had visited a friend Mrs. Patterson, a probation officer in the Prince George’s County juvenile court and that Joyce had been keeping late out and this was the basis of the mother’s petition back in April of 1961.

Earl Warren:

And that’s all what was evidence?

Donald Needle:

That is what the record shows, so yes.

There’s no question about that.

Earl Warren:

Now, the record is what was, what you stipulated was in there?

Donald Needle:

Yes sir.

Earl Warren:

What does the record itself show?

Anything in addition to that?

Donald Needle:

No sir, it does not.

Earl Warren:

The record in the juvenile court?

Donald Needle:

No, the record in the juvenile court.

Now the petition had been filed by Mrs. Roberts back in April of 1961.

Earl Warren:

That’s before — before this rape?

Donald Needle:

Yes sir.

Now the hearing —

Earl Warren:

Now, let’s stay right with that petition for a moment.

What did that show?

Did it show only what you have just said or did it show more?

Donald Needle:

It showed that there was a complaint made by Mrs. Roberts that her daughter was out of parental control.

Now, that was explained by Mrs. Roberts during her testimony —

Earl Warren:

Now, let’s not talk about the testimony.

What did the petition show?

Donald Needle:

It showed that Joyce Roberts was out of parental control.

Earl Warren:

And for what reason?

What was her conduct that showed that?

I suppose your — your petition shows some misconduct on her part.

Donald Needle:

The petition sir was never offered in evidence per se.

We don’t find it in the petition.

Earl Warren:

I’m not talking about that.

I’m asking you what it shows and certainly the state must know by this time what that petition showed.

Don’t you know?

Donald Needle:

We don’t know sir.

We know what was in this — what is in this record and what was introduced in the lower court.

Now, that petition has never been introduced.

There is only a stipulation in this record stating what it contained.

And it contained a statement that Mrs. Roberts had filed a petition stating that Joyce Roberts is out of parental control.

That a case worker investigated this complaint and suggested that Joyce Roberts be placed on probation.

Earl Warren:

Are you saying now that the state does not know that this time what was in that petition other than as you get it from this record?

Donald Needle:

Yes sir.

Earl Warren:

Alright, that’s your answer.

Hugo L. Black:

Who stipulated?

Who signed the stipulation?

Donald Needle:

This was an oral stipulation between the state’s attorney and the defense counsel at the post-conviction hearing.

Hugo L. Black:

That represents what the counsel stipulated it contained it.

Donald Needle:

Yes sir.

William J. Brennan, Jr.:

Where is that stipulation?

Donald Needle:

It’s on page 174 of the brief.

William J. Brennan, Jr.:

I beg your pardon?

Donald Needle:

On page 174 sir.

William J. Brennan, Jr.:

Thanks.

Now, did that follow the refusal of the Court to allow evidence, the exhibit three for identification with the 275?

Donald Needle:

I’m sorry, I didn’t understand your question.

William J. Brennan, Jr.:

Well I thought, Mr. Forer told us that the exhibit 3 for identification of 275 which is the formal court record of the juvenile court of the hearing on September 5, three months before the trial that that was offered in evidence and the Court refused receive it an evidence, isn’t that right?

Donald Needle:

It was never officially offered sir.

William J. Brennan, Jr.:

It was not?

Donald Needle:

It was only offered for identification, there was no motion to offer it into evidence, only for identification.

And this was pointed out on numerous tons by Mr. Kardy whenever the counsel made reference to this particular record.

William J. Brennan, Jr.:

What I don’t quite understand is what you referred as to 174 is the stipulation is it not regarding the Prince George’s County procedure?

Donald Needle:

Yes sir.

William J. Brennan, Jr.:

Well now one of the proceedings which interest me even more.

In Montgomery County on September 5, 1961 which is at page 275 petition is exhibit three for identification.

Donald Needle:

Your Honor please, the initial petition in this case concerning Joyce Roberts which ended in a hearing on September the fifth in Montgomery County had been filed in Prince George’s County.

And that is the same hearing that we’re talking about on the stipulation.

William J. Brennan, Jr.:

That was transferred to Montgomery was it?

Donald Needle:

Yes.

Now, the reason that that was transferred to Montgomery County and we point that out in our brief is that subsequent to the date of April the 4th when this initial Prince George’s County petition was sought, Joyce Roberts and her family had been subjected to gross harassment.

The mother had requested Lieutenant Whalen to have her placed in protective custody.

And Lieutenant Whalen called the judge of the juvenile court of Montgomery County and told the judge of that court that this girl is to be a necessary witness in the state’s case.

Donald Needle:

A hearing therefore was held in Montgomery County and it concerned therefore the original facts contained in this stipulation plus the fact that the state wanted her held for her own protective custody.

And that’s why the hearing was held in Montgomery.

William J. Brennan, Jr.:

Well then, what’s the significance of that paragraph summary of hearing which I referred to before particularly and also she was the state witness in the case where two adults are charged.

Donald Needle:

That is what I just explained sir.

William J. Brennan, Jr.:

That’s not the Giles case.

It referred to that.

Donald Needle:

Yes sir, yes.

It wasn’t the Giles case.

William J. Brennan, Jr.:

Wait a minute apparently here occasion for hearing and also that said child is a necessary witness on behalf of the state regarding a criminal case pending in the circuit court for Montgomery County.

And the summary of the hearing that she was a state witness in the case where two adults are charged in this August incident, I understand were two men involved at the party.

Donald Needle:

Yes sir, but no charge ever made this report refers only to the Giles case.

William J. Brennan, Jr.:

Well I thought there were three involved in the Giles case?

Donald Needle:

There were three involved sir.

But they were treated as distinct cases.

The Giles brothers is one case because a severance had been asked as far as the third party was concerned.

So, if I might continue that what we’re talking about here then is not only a question of uncorroborated testimony.

But a grossly clear picture drawn by the state is to what occurred on that night.

Now, very briefly, we maintain that other than the question of the utility of information which is the only rule which Mr. Forer suggests as the court contests that there are many, many other factors in this case to be given very serious consideration before any one rule can be made to be imposed upon the states under the due process clause.

Consideration has got to be given as I pointed out number one, what did the state know or what was the state chargeable with knowing?

Consideration has got to be given, we maintain, to what did the defense know or what was the defense chargeable with knowing.

Now, as relates to the evidence itself, consideration must be given not only to usefulness of that information.

Consideration must be given to the admissibility of that information.

Again, to the discoverability of that information under existing rules of discovery and inspection available in the states.

Now, Maryland Rule 728 which is said out in this petition is broader than Federal Rule 16.

Under neither rule would any of these evidence have been discoverable in a manner of pretrial discovery had it been requested.

Now, we state that this is a very important factor to be determined along with the mere question of possible usefulness of this information.

It’s discoverability.

It’s availability.

Now, was this evidence merely cumulative or impeaching?

Now, if it was so, it would not have been material exculpatory evidence.

Donald Needle:

And finally, was the evidence contradictory of anything that happened in the trial?

The answer is no. The evidence was not contradictory of anything that happened in the trial.

Now, the only aspect that Mr. Forer can point to trying to show some semblance of contradiction would be the fact that Joyce Roberts denied that she was on probation.

However, the stipulation at the time of the trial and prior thereto she was not on probation.

She never was on probation and still — and is not now.

So there is no contradiction of any trial testimony.

So we maintain that before a rule can be passed in this case that the state must disclose not only what it knows but what it maybe should find that very careful consideration has got to be given to these other factors, to what the state really knew to the question of due diligence and equal availability of this knowledge to the defense to the question of the admissibility of this information to the question of whether the evidence could have been discovered even had it been asked and note finally that in the Brady case, one of the questions or one of the prerequisites to relief was that a request for information has to be made.

Now, our Court of Appeals as I have already pointed out showed that these defendants must have known — must have known of the character and reputation of this girl or at least had something that it should have gone and investigate.

Now, we maintain sir that no case has ever held so far as we now that unless the state has exclusive knowledge of information that the defense knows that and that is the exclusive knowledge of information within its own control that is equally available to the defense counsel that a suppression has been maintained under the Fourteenth Amendment.

Now, we maintain that the Fourteenth Amendment imposes not so broad an obligation as that which is sought here.

We say that the Fourteenth Amendment does say that a prosecutor is to prosecute with earnest and as vigor.

You have said that in the Burger Case and we maintain that what the prosecution is precluded from doing by the Fourteenth Amendment is not from becoming a partisan but by having his partisan should turn into impartiality to become impartial to the extent of being disequal of to the extent of being desized.

Abe Fortas:

Let me ask you when I hope this is a very simple question.

I hope it is.

Let’s suppose that the prosecuting attorney, what was his name?

Donald Needle:

Mr. Kardy sir, Leonard Kardy.

Abe Fortas:

Alright.

Now let’s suppose that he personally knew that the prosecuting witness had made a complaint to the police to get them out where, tell the police that she had been raped by two men and that it had been established that that statement that she made was false and that she had been a knowing and willing participant in the act whereupon the police dropped on that.

Now the police assumed that the prosecuting attorney knew what I have just stated to you.

Now, is it in your position that he does or does not, that he would or would not have had the duty to inform the defense of those facts that when they get to firmly that’s a question that is susceptible with fairly direct answer.

Donald Needle:

If You Honor pleases, I would have to say that I don’t know that the state’s attorney could give you a quick answer on that.

I would say that he has got to weigh —

Abe Fortas:

But for your view, as to whether he had a duty and no circumstances to disclose the facts that I narrowed as to the defense.

Donald Needle:

I would say yes sir because those facts are then completely exculpatory facts these are facts that are not just —

Abe Fortas:

No, they are not completely exculpatory at all.

This was another incident involving other people.

Donald Needle:

Oh, well then I misunderstood your question.

Abe Fortas:

You currently stated that it’s clearly as I put.

Donald Needle:

I’m sorry.

Abe Fortas:

The state’s attorney has knowledge that in other instance involving other men at another time the prosecuting witness complained to the police that she had been raped.

Abe Fortas:

The police investigated and they concluded that the prosecuting witness had not been raped but there was no basis for such a charge that the prosecuting witness had been a willing cooperator in the venture.

In those circumstances, then along comes the Giles case.

Those circumstances, is it or is it not in your theory that the prosecuting attorney must disclose these facts to the defense?

Donald Needle:

No sir, it would not have to disclose these facts.

Abe Fortas:

Tell me why.

Donald Needle:

Because number one sir, this evidence in Maryland under Maryland law of prior false rate claim would not be admissible.

Abe Fortas:

It would not be admissible —

Donald Needle:

No sir.

Abe Fortas:

— with respect to the credibility of the prosecuting witness.

Donald Needle:

This is correct sir.

Abe Fortas:

It would not be available for use by the defense on cross-examination as to credibility, is that what you’re telling us?

Donald Needle:

That is correct.

That is the Maryland law.

Yes sir and I have pointed out the cases that what we have here is not only — not a prior false rape claim sir but we maintain we have here not a (Voice Overlap).

Abe Fortas:

I know that but I’m not asking about the — I’m asking you to confine yourself to this (Voice Overlap) — confine yourself to this hypothetical situation.

Donald Needle:

The Maryland Court of Appeals has specifically held sir that evidence of a prior false rape claim is not admissible to impeach the credibility of a witness.

Abe Fortas:

Alright, suppose that the prosecuting attorney or where the court record that showed that the prosecuting witness had been exceedingly permissible.

Would the prosecuting attorney have a duty on these circumstances to disclose that to the defense?

Donald Needle:

No sir.

Abe Fortas:

Why?

Same reason?

Earl Warren:

Your answer is yes or no?

Donald Needle:

No sir.

Abe Fortas:

Same reason?

Donald Needle:

If Your Honor pleases, this evidence as long as it does not relate to specific acts would be admissible.

Specific acts of misconduct —

Abe Fortas:

Alright —

Donald Needle:

— are not admissible but general reputation would be admissible.

Abe Fortas:

Alright now, the prosecuting attorney knows this general reputation and your submission does the prosecuting attorney have a duty to disclose that to the defense?

Donald Needle:

I don’t know whether he has the Fourteenth Amendment duty sir.

Donald Needle:

He might have a moral obligation to it because this would be admissible evidence.

Abe Fortas:

But you’re answering in both ways.

Donald Needle:

Well, I don’t know how I can honestly answer you sir.

I say that as far as the constitutional issue is concerned that there should be no positive duty on them to do so because the question is not merely that of admissibility and the question is not merely that of usefulness.

You have got to add to that other factors and other factors or did the defendant know it?

What was the real extent of the prosecution knowledge?

Abe Fortas:

Do you believe if the defense counsel knew or should upon reasonable investigation have known then there’s no duty on the prosecution to make disclosure.

Is that your submission?

Donald Needle:

I would agree to that sir.

Hugo L. Black:

Can I ask you a question?

Donald Needle:

Yes sir.

Hugo L. Black:

You started to tell that, what happened when the defendant scream up to the cops.

Did I understand you to say they broke in to the car?

Donald Needle:

Yes Your Honor.

Hugo L. Black:

How did they break in to the car?

Donald Needle:

They threw, Your Honor pleases, large rocks and boulders into that car and shattered all the windows in that car.

Hugo L. Black:

Was that none shadowed glass or was it just regular glass?

Donald Needle:

This is — evidence sir that is not in the record and I don’t know.

Hugo L. Black:

What excuse did they give for breaking into the car?

Donald Needle:

The excuse that they gave sir was that Stewart Foster leaned down in the backseat of the car as though he were reaching for a gun and in order to prevent Foster from shooting them, they broke into the car.

Hugo L. Black:

Did they claim that they wanted to get the gun?

Donald Needle:

They claim sir that they wanted to prevent Foster from shooting them.

That was the extent of their explanation.

Hugo L. Black:

And the best way to do it was to break the window?

Donald Needle:

Yes sir.

Was that the — was that the beginning of the episode?

That they just saw him reaching down to the (Voice Overlap)?

Well no sir.

Prior to that time there had been a conversation.

Earl Warren:

What conversation?

Donald Needle:

In which the —

Earl Warren:

What did they claim — what did they claim for the both of them?

Donald Needle:

Well they claimed — the defense claimed that the state provoked this by using certain racial epithets.

Earl Warren:

I beg your pardon?

Donald Needle:

By using certain racial epithets.

The —

Earl Warren:

You mean to stop the man and use epithets on them?

Donald Needle:

That’s correct sir.

Earl Warren:

Out in the woods?

Donald Needle:

That’s correct.

Earl Warren:

At night?

Donald Needle:

Right, that is the answer sir.

Now, the chronology of the events were that one of the boys asked Stewart Foster for a cigarette.

Foster said he had no cigarettes.

One of the boys then asked Foster for money.

Foster said he had no money.

The boys then went behind the stalled vehicle in which Joyce and Foster were in.

It’s at this point where the defendants claim they saw Stewart Foster bending down as so reaching for something.

They also claim that Foster had called them certain racial names that there had been an argument.

And because of these names and because Foster was reaching down that it was then that they broke the windows.

So there had been a conversation of course prior to the rocks being thrown.

Now, what was said is a question of interpretation, the state’s interpretation where the state’s evidence was that there was nothing to provoke this attack.

Earl Warren:

We’ll recess now.

I said it before you, take your chair.

I want to broaden now the question that Mr. Justice Fortas asked you a little bit, suppose that the state knew and the prosecution I mean at the time of the trial of these petitioners what the state now knows and what we now know from this record would the prosecution have been obliged to divulge to the defense any of those matters concerning the prior conduct of this girl for after the rape?

Donald Needle:

I would answer Your Honor that Fourteenth Amendment does not impose that obligation in this case because the facts of this case as they are now all cumulatively known.

Number one would not have been admissible in evidence.

They — we admit would have been useful.

But —

Earl Warren:

It would have been what?

Donald Needle:

Useful sir.

But we maintain sir that utility of information is not to be considered by itself that there are even with all of these cumulative evidence too many other factors involved here.

The admissibility of the evidence.

The fact that the evidence could not have been discovered under the Maryland rules and the implications that would be drawn by the state having to give this type of information.

We maintain sir that under the Fourteenth Amendment that there would have been no obligation on the state’s attorney had he known all of these evidence cumulatively even as opposed to what he in fact didn’t know.

Earl Warren:

Well, borrowing your rules of evidence and considering the question of whether or not these men had a fair trial and in that were entitled to take all signs and circumstance of the record into our consideration.

Would you say that if the state then knew what you now knew and in order to have a fair trial they should have the divulged that information to the defense.

Donald Needle:

I would answer no sir that with all of these information cumulatively that what it now shows would not have precluded or did not prevent the petitioner from obtaining a fair trial.

Earl Warren:

Well, let — let’s put it this way then, the — let’s go to the sentencing process.

If they had that information is it not likely that the judge would have taken that information into consideration in sentencing these men and that in doing so, he would have expired some other sentence other than death even down to I think you said that minimum was 18 months or something like that 18 months to death might be not then of even some other sentence than that if that had disclosed to them?

Donald Needle:

Yes sir, I think in that regard that perhaps this evidence might under a moral obligation have been disclosed as regard to the issue of sentence but I point out also in answer to your question to that the claim of the petitioners here is not that this evidence related so much to the sentencing because that’s really a moot question at this point since the sentence has been commuted by the governor.

Earl Warren:

Does that make it moot because the judge might have given him 20 years, might have given him 15, or might have given him 10 might have given him 18 months.

Donald Needle:

This is correct sir.

Earl Warren:

Well so you can’t say that’s moot can you?

Donald Needle:

Well, perhaps it’s not moot sir but perhaps I (Voice Overlap).

That is correct Your Honor.

I think that perhaps that the better answer is that the claim of the petitioners goes to the due process aspect of the fairness of the trial as regards their guilt or innocence not as regards the punishment to be imposed.

And I think the claim here relates to due process in consideration of guilt of or innocence of these people.

Earl Warren:

Do they wave everything but that?

Donald Needle:

Well I don’t say that they waive it sir but I say that this is what they are claiming here.

Earl Warren:

Why isn’t it here?

They didn’t waive it.

Donald Needle:

Then I would assume by implication that the question would be here.

Yes sir.

Earl Warren:

Because they’re not — the gravamen of their charge is not that it’s admissible that could be thought out by different manner but the gravamen of their complaint is that this information was in the hands of the state and they did not divulge it.

And whether it’s on the trial I would say that whether it’s on the sentence if it is just improper that that should have — information should have been given to them it should have been given to them if not for the trial certain report for the sentencing process which was later.

Donald Needle:

Well, Your Honor as I have said, I agree that as regards to the sentencing aspect of this case, this evidence certainly would have been useful.

Earl Warren:

Useful well by of course it have been useful.

I think we all agree on that.

But was a responsibility on them to give it to the defense, that information.

Donald Needle:

Well if Your Honor please —

Earl Warren:

Have they known what we all know now?

Donald Needle:

Had they known what we all — what is known now, I would say yes sir.

Earl Warren:

Alright.

Now based on what knew now should not this case be sent back at least for the sentencing process where those things can be considered?

Byron R. White:

How did you know the trial judge (Inaudible).

Donald Needle:

Well if Your Honor pleases this information, the post-conviction proceeding was filed 30 months after the conviction, that this information was found within that period of time.

William J. Brennan, Jr.:

Yes, but there was a hearing Mr. Needle on September the 5th, three months before the trial.

Now, I take that Maryland has some kind of pre-sentence investigation proceeding don’t they?

Donald Needle:

Yes sir.

William J. Brennan, Jr.:

And that involves probation officers and the like.

Donald Needle:

That’s correct.

William J. Brennan, Jr.:

Was there such a report from the trial judge?

Donald Needle:

There is no evidence in the record sir that there was in this case.

William J. Brennan, Jr.:

Well ordinarily would we expect the course?

Donald Needle:

Ordinarily sir that is the normal course but in this case, there is no specific evidence that there was one.

William J. Brennan, Jr.:

Does Maryland have a practice that in the defense counsel before a sentence see the investigation of the Court?

Donald Needle:

If there is one, the defense counsels are entitled to see it.

Byron R. White:

Let me pursue that the matter in September 5 hearing that this would clear my own mind that Lieutenant Whalen was at that hearing, in the juvenile court hearing.

Donald Needle:

Yes sir, but denied being in the room during the course of the hearing.

Byron R. White:

I thought he had no recollection of the record.

Donald Needle:

My recollection of the record is that Lieutenant Whalen denied being in the room at the time —

Byron R. White:

Isn’t that in direct contrary of what the record but the discovering of the Giles?

Donald Needle:

The record shows sir that Lieutenant Whalen stated that he had had a conversation with the doctor.

Now both the doctor denied and Lieutenant Whalen denied that this conversation had ever taken place but the most that I can show as far as the presence of Lieutenant Whalen at that particular hearing would be that at one particular point, he was there —

Byron R. White:

But in formal record at page 275 of the record it says that those (Inaudible) Detective Whalen.

Donald Needle:

That is correct sir.

Byron R. White:

And over it and then summarizes the hearing.

Page 277 it says Lieutenant Whalen stated that Dr. Connor of hospital of Montgomery (Inaudible).

Now the inference to the written record was ever introduced from the post-conviction hearing I gather that Whalen was there.

Donald Needle:

That is correct.

Byron R. White:

What was the basis for and I noticed that before Whalen have been invited to the post-conviction hearing that the probation officer, the juvenile court probation officer Lynn Adams and Lynn Adams was at by counsel for the petitioner what went on at the hearing?

Who said what to whom?

There was objection, objection was sustained.

The object I suppose to the question was to show that Lieutenant Whalen who was there or to find out if he was there, he was there what kind of information he obtained at that hearing?

And if the juvenile court officer Lynn Adams has made an investigation a part of this hearing which the record shows that she had, you would think that there might have been a lack to disclose to the hearing other than just give the through summaries that are (Voice Overlap).

Now, what was the basis do you know for the exclusion of that evidence?

Donald Needle:

I do not know sir.

I cannot —

Byron R. White:

Would you think it would be rather relevant thing (Voice Overlap)?

Donald Needle:

I would think it would have been relevant —

Byron R. White:

I suppose you would agree that Lieutenant Whalen might have learned something.

Donald Needle:

Correct.

Byron R. White:

That might have obligated the prosecuting the attorney to dispose the defense.

Donald Needle:

This is correct.

But —

Byron R. White:

Now, was that the cost of the — that evidence was excluded.

Was that objection preserved?

Is that one of the issues that was taken to the Maryland Court or not?

Donald Needle:

I don’t believe that this was — this particular issue was taken to the Court of Appeals.

I’m not —

Byron R. White:

But the question that was asked at that time Lieutenant Whalen added was precisely on the issue we’ve been talking about.

Donald Needle:

That’s correct.

Byron R. White:

Did all these information about the prosecuting witness did all these information come out of that hearing (Inaudible)?

Donald Needle:

And the only information we have in the record sir is Lieutenant Whalen denied.

Byron R. White:

What is the deal in the information?

Donald Needle:

Being in the room and this is in our position of course to this petitioners exhibit number 3 for identification which states Maryland is present and that at one point Lieutenant Whalen made a statement that he had spoken to the doctor.

Now, if the actual juvenile records of the court if Your Honors would feel that they are important as relating to the case whereas to the states knowledge, the state would be very happy to include certified copies —

Byron R. White:

Well, they never gave it.

As I understand it they did not do it.

Byron R. White:

They did not provide verbatim transcript to the juvenile court hearing.

They are in a very good (Inaudible).

Donald Needle:

Well Your Honor this is — I’m saying we —

Byron R. White:

Isn’t that so?

Donald Needle:

— do not know what was in those particular juvenile court records.

We’ve never seen them.

Byron R. White:

But isn’t the only record, the actually the only record in that hearing that took place in September 5th is this summary?

Donald Needle:

Apparently it is.

But I’m not sure —

Byron R. White:

(Voice Overlap) transcript.

Donald Needle:

I’m not sure, I cannot definitely —

William J. Brennan, Jr.:

But I suppose Mr. Needle, Ms. Lynn Adams who apparently did make according to her testimony an investigation before that hearing of September 5, she may have filed some kind of a report sort of thing.

And that certainly is not here in the record.

Donald Needle:

That is not and the state would be happy and would offer to have entered into the record before this Court.

Any information known to either the juvenile court of Prince George’s County or the Montgomery County juvenile court would offer that for the court consideration.

Now I’ve stated that we, in the attorney general’s office have never seen it.

We handle the appellate trial and would be happy to offer any juvenile court records for whatever relevance they might shed on this case.

Earl Warren:

I suggest that you send both to us if you will.

Donald Needle:

Yes sir.

Earl Warren:

Now, I want to ask you of course you, you said that your defendant that if we knew — if you knew then what we know now about the facts of this case, in order to assure fair trial they should have disclosed the information.

Now, and then I ask you if the fact that we do know it now in considering this matter do you object to sending it back to have these matters disclosed to counsel and to the Court we’re hearing on the sentence.

Donald Needle:

Well, of course, Your Honor asking me to make a concession which I don’t think this case calls for.

For the simple reason that we maintain that we did not have all of this knowledge and that unless you can first find that we did that we don’t reach this particular proposition.

Earl Warren:

Yes, I know what your position is but if you do know now that in order to accord a man a fair trial he should have had certain information.

He and the judge have had certain information which the prosecution have but didn’t disclose shouldn’t he now be able to have that in order to determine whether he has to serve the rest of his life in jail or whether he might receive some clemency of some kind.

Donald Needle:

Perhaps sir but I would suggest that the post conviction trial court had all of these information.

Earl Warren:

I beg your pardon?

Donald Needle:

I would suggest sir that the post conviction trial court had all of these information and our Court of Appeals had all of these information.

Earl Warren:

Your trial court decided against you too?

Donald Needle:

Yes sir, but the Court of Appeals reversed the trial court.

Donald Needle:

Now, this information therefore was wade and was going over by our appellant reviewing authority.

And our highest court has decided that this evidence was not sufficient to show a denial of due process.

Earl Warren:

But let’s agree here decisive to decide it too.

Now Mr. may I just ask one question as to whether or not the record shows that the trial judge did or did not have this information about the probation matters.

Donald Needle:

I don’t —

Earl Warren:

At the time of the trial, at the time of the trial and at the time of the sentencing is there anything in the record that you can point to show that the judge did or did not have this evidence concerning what occurred in this probation proceedings.

Donald Needle:

Yes sir.

The record as far as my recollection is was to void of any evidence one way or the other and my impression from my own knowledge of this case is that the judge did not have before him these records I am not certain but as I say, I don’t think he did it and it wasn’t sure.

Earl Warren:

I gather that impression myself because I have been reading from pages 156 and 157 and the judge said there that “Of” course the jury didn’t believe you, the jury rightly didn’t believe you, what I have said to your brother and codefendant in this case applies to you and that is the fact that nothing had been shown in extenuation.

And I would assume that that —

Donald Needle:

Correct sir, that was my impression.

Earl Warren:

Yeah, thank you very much.

Hugo L. Black:

May I ask you.

I would like to ask you what was the date of the conviction?

Donald Needle:

Conviction sir was December 5, 1961.

Hugo L. Black:

What was the date of the sentencing?

Donald Needle:

Sentencing was December 11, 1961.

Hugo L. Black:

Does the law require that your probation officer make an investigation and report it to the judge before he sentence?

Donald Needle:

I don’t know that there is a particular statute my counsel is —

Earl Warren:

You may ask your counsel if you need to.

Donald Needle:

If Your Honor pleases, this is a practice which is usually done by our Maryland Court.

There is no statutory authority making this a necessity or demand.

But it is the practice, yes sir.

Earl Warren:

If there was such a report in this case would you include that please with the probation officer’s report that you’re going to send.

Donald Needle:

Yes sir.

Earl Warren:

Thank you very much.

Donald Needle:

Thank you.

Hugo L. Black:

What actual (Inaudible)?

Donald Needle:

They are certainly like imprisonments.

Hugo L. Black:

(Inaudible) after 15 years?

Donald Needle:

15 years, yes sir.

Hugo L. Black:

(Inaudible)

Donald Needle:

In 1961 until the present time sir.

Hugo L. Black:

Under the present time (Inaudible).

Donald Needle:

That’s correct.

It would be a minimum Your Honor, of 15 years before they would be eligible for parole probation.

But of course they are at this point considered as for life imprisonment.

Byron R. White:

Counsel for the petitioner said that the lady was the first who brought up the topic of sex and then the defendant I heard the (Inaudible).

Do you agree that he brought up the topic of sex first or invited the sexual intercourse?

Donald Needle:

The testimony concerning this sir was that —

Byron R. White:

I am talking about her testimony.

Donald Needle:

Yes sir, her testimony was that she told John Giles the first of the defendants to find her lying I the woods that if he would help her move back further she was only 30 feet or so from the car that she would allow him to have intercourse with her and she explained this statement by saying that she hope that if John Giles who had found her would let her get back out of the way, that she would then be able to get away from all of them.

Although a literal reading of the record suggest that Joyce Roberts was the first person to mention that.

However —

Byron R. White:

That’s from — that’s from the language though.

Could you give me that language that you’re relying on there, plus what the record stated?

Is it on page 55 or –?

Donald Needle:

At the top page of 66 sir is the question, now Joyce when this boy John first found you, didn’t you tell him, if he would help you get away that you would let him have a little, do you remember that?

He answered yes sir, and question did you claim to let him have a little if you’d help him?

Answer, no sir.

The first comments or in this case concerning sex was not made at the time Joyce Roberts was found.

What was made at the car, prior to the time that it was demolished and broken into.

So the first question in this case concerning sex are not these words of Joyce Roberts.

Hugo L. Black:

What are they?

Donald Needle:

But an alleged statement made by one of the defendants was say was let’s drag her out of the car and have intercourse.

Of course, the words used were not quite the same as I just read.

Hugo L. Black:

But that was stated at the car.

Donald Needle:

Yes sir.

Hugo L. Black:

Was there any indication that she offered then to commit to it?

Donald Needle:

No sir, she ran from the car after the statement was made.

Lewis F. Powell, Jr.:

Mr. Needle is that the record you (Inaudible)

Donald Needle:

Thank you sir.

Earl Warren:

Mr. Murphy, the time has expired but we’ve taken so much of the time, I’m going to give you 10 minutes to conclude your argument if you will please.

Robert C. Murphy:

Mr. Chief Justice and may it please the Court.

I will be mindful of the fact that we have overstayed the time.

I was — I would develop what argument I could make it within an abbreviated period of time that it will be brief and somewhat abortive.

The second one of the petitioner relates to the Maryland’s former practice where all the — which limits the trial motion for three days including on any go round, including newly discovered evidence.

My brother challenges that on the basis of the Fourteenth Amendment and says and that seems that the state has required to provide to condemn persons a reasonable opportunity presumably through a due trial mechanism demonstrate their innocence on the basis of newly discovered evidence that the Maryland rule of three days simply was not reasonable, was lacking in fundamental fairness and a classic due process terms that is shocking to the universal sense of justice.

We say in response to that Your Honor is that due process does not require a new trial and that where a state grants a new trial, it may impose such time limitations on the availability as it sees fit.

We don’t here maintain the three days is reasonable or unreasonable and I might add, that’s no longer the Maryland Rule, we now have the 90-day new trial motion for newly discovered evidence but this Court has enunciated the principal proposition many years ago.

Mr. Justice Holmes in the case of James versus Appellant, 192 U.S. in 1904 decision he said subsequently and very briefly in three sentences and with the Court’s permission, I will simply quote that on this particular point, “We no more can doubt the power of the legislature to enact that statutes of limitation or motions for a new trial and we can doubt its power to an access of statute for the bringing of action.

It may be a questioned whether there would be any constitutional objection to a law making the original judgment final and doing a way with new trial altogether.”

Re-hearings, new trials are not essential to due process of law either in judicial or administrative proceedings cited in earlier case of this Court, Railroad Company versus Bach as in 154 U.S.

That proposition remains the law of the land as I understand it Your Honor of course the new rules of the court both state and federal and federal rules of criminal procedure setting forth time limitations on new trials that are now with us.

We — the former rule of the expiration of the term of Court has a cut off period for new trials is no longer the law but there have been cases of this Court where individuals sought to avail themselves of new trials after the 5-day period.

This Court has said, this is a matter of power of jurisdiction.

You must do it within the period specified or not at all.

Again, I say the question of the power of jurisdiction there is not due process requirement involved.

My brothers seem to suggest that — apparently seek to utilize a due process clause here as a vehicle to create power or to enlarge power as we say of course they are being held constitutional predicate for a new trial here.

The State of Maryland’s limitation of three days although it may appear unreasonable is not unconstitutional.

There is a second point perhaps more difficult, the equal protection argument of my brother, basically amounts to this.

As Your Honors know in Maryland the jury is the judge of the law and the fact in the criminal case.

From that predicate, the intention is made that the Maryland Court of Appeals has denied the petitioners in this case equal protection of the law when they substituted their judgment for the exculpatory value of the alleged rape claim, the alleged suicide evidence for the determination that may have been made for a jury.

They say in essence that we have picked out a specie of case and have applied a different standard to this type of case and we would do any other case we violated around the principle and the principles of due process and equal protection.

We say to that of course that the predicate to make that argument a rational one is that the Maryland Court of Appeals had indicated that the evidence of question was admissible.

It did not.

The Maryland Court of Appeals held that the evidence of the false rape claim and of the suicide attempt was not admissible so that the equal protection argument falls right there.

It requires a bottom of admissibility of the evidence before it can be utilized.

I think what my brothers had in mind was the fact that the Court of Appeals, fortuitously perhaps stated that even if this evidence were admissible and nevertheless it wasn’t of sufficient exculpatory value to be — to give rise of the application of the suppression doctrine for that we say it is.

This was a Post-Conviction Procedure Act proceeding with which I am sure Your Honors are familiar.

Robert C. Murphy:

We have that Act in Maryland.

That is a civil case.

This was not a trial of criminal case but many of that in Maryland and all our Post-Conviction Procedure Act case there is no jury.

The judge determines all relevant matters of fact and law.

Suppression cases are treated like any other case.

The voluntariness case for example of a confession, the trial judge makes all relevant determinations.

We haven’t treated suppression cases any different than we treat any other case.

It’s not a violation of equal protection.

If I haven’t made myself clear in this brief time I’m talking rather fast but we would say this as Your Honors recall in Thomson versus (Inaudible), you said in essence that substantial allegation of newly discovered evidence where all of these available in a federal habeas corpus setting that if such allegations are made and incumbent upon a trial judge to have a hearing to determine whether or not this newly discovered evidence would furnish a predicate for a constitutional claim.

You also said that the newly discovered evidence which merely goes to the question of innocence or guilt is not grounds for such a hearing and in other words I think the essence of what you’ve done was to reaffirm the proposition that a new trial was not an essential reading of due process.

But you haven’t slammed the door and said that you can’t do anything with this newly discovered evidence or whatsoever.

Again, I apologize for this and —

Earl Warren:

Is there any way under Maryland law where he can now do — these petitions can do anything that so far as this newly discovered evidence.

Robert C. Murphy:

I think basically Your Honor the newly discovered evidence is that what she says is suppressed.

Earl Warren:

I beg your pardon?

Robert C. Murphy:

Yeah, she is doing it right now.

He — the newly discovered evidence is that what she said is suppressed and upon which he’s taking a two-pronged attack.

One on suppression to get a new trial and if that fails then they simply want a new trial on the basis of innocence or guilt which we say is not proper.

Earl Warren:

Yes, well I just begging your co-counsel has said that this wasn’t admissible because of Maryland law.

You now say that they can use the newly discovered evidence in other ways.

Is there any other way than the one they have chosen here under Maryland law?

Robert C. Murphy:

I think not.

Earl Warren:

You think not?

Robert C. Murphy:

I think not.

Earl Warren:

Thank you.

William J. Brennan, Jr.:

Mr. Forer, before you begin, may I ask I gather if you prevail, there will have to be a new trial.

Joseph Forer:

Yes.

William J. Brennan, Jr.:

And I take it, I think presently stand a new trial but again was all on the death penalty.

Joseph Forer:

Yes.

William J. Brennan, Jr.:

The Giles brothers familiar with that?

Joseph Forer:

They certainly are.

William J. Brennan, Jr.:

And they are willing to?

Joseph Forer:

They are not only willing, they have insisted.

Let me first answer the question that Mr. Justice Brennan raised.

There was no, no pre-sentence investigation in this case.

The judge could have ordered one, he did fail to order one.

Abe Fortas:

Did the state’s counsel agreed with that?

I did not.

Abe Fortas:

I see.

Joseph Forer:

I do know —

Abe Fortas:

Excuse me.

Thank you.

Joseph Forer:

Not only do I know but it would have been impossible within the — in the five-day interval that conducted such an investigation.

I do know there was none.

Secondly, there was no pre-sentence investigation between verdict and sentence.

The judge just in order and there was not and he sentenced him to death without pre-sentence investigation and after a five-minute hearing in which the only thing that was offered was some reputation testimony by one person which is in the record.

Secondly, on the question of sentencing, there is — we would not be satisfied to have a case where a portion of the law I’ll say that right now.

But it is true and this is relevant to your question Mr. Chief Justice.

There is a Fourth Circuit case construing Maryland law in the advanced sheets.

It’s not in neither brief.

Whitaker against the Warden 362 Federal Second 838, 362 F.2d 838 which construing Maryland law on the question of sentence says that it is unquestionably clear that the promiscuity of a rape victim would be admissible in mitigation of sentence.

I want to — on the question of petitioner’s exhibit 3 —

Earl Warren:

What page was that you say?

Joseph Forer:

838, 362 federal second 838 of the advanced sheet.

On the question of petitioner’s exhibit 3 which is the Montgomery County juvenile court hearing.

I just don’t understand our counsel can say we didn’t offer it.

It’s right there in the record at page 173 of the record we offered it.

The state objected and the Judge Moorman excluded it on the state’s objection.

Why he did it, I can’t understand.

If you want to see the discussion that went on the full evidentiary transcript which is in the certified record.

William J. Brennan, Jr.:

Discussion of one of the —

Joseph Forer:

Whatever, we have a very rough time at the post-conviction proceeding getting any evidence in.

Byron R. White:

Well, I gathered that all of your effort to get in the record what appeared as an indemnified hearing in the Montgomery County juvenile court.

Joseph Forer:

Were frustrated.

Byron R. White:

Were included.

Joseph Forer:

That’s right.

Byron R. White:

All of the evidence here, it was excluded.

Joseph Forer:

Yes.

Byron R. White:

Including any —

Joseph Forer:

Including testimony on the records.

Byron R. White:

Now the counsel for the state suggested that the lieutenant denied.

The lieutenant denied being at the hearing, as I read the record, he admitted that he was at some hearing but he can’t remember what the date was.

Joseph Forer:

No, what happened was —

Byron R. White:

He couldn’t remember what went on the hearing he was at.

Joseph Forer:

No, it was more than that.

He admitted being at the hearing.

He showed a very weak memory to the point where he couldn’t even remember things that the hearing folks are saying.

But he did say that on — he wasn’t at the hearing at all times.

He said he went in and out a couple of times.

That’s the gravamen of his testimony.

He was at the hearing but he said that he didn’t remember some of it and he wasn’t in the hearing every minute of the hearing.

On the question of what transpired at the car, the version given by Mr. Needle seems to me to be an inaccurate account of the state’s evidence.

It certainly does not correspond to the contrary evidence of the defense.

Furthermore, among the new evidence that we sought to get a hearing on was a great mass of evidence in addition to the evidence that we claim suppressed including evidence relating to Stewart Foster and the accounts given by Stewart Foster after — immediately after this alleged rape which would have served to corroborate the testimony of the defendants that they would not the aggressors.

They did not provoke the altercation and we were never able to get that new evidence in because of the Maryland three-day rule.

Now, we’re not claiming that the evident information that was suppressed proves innocence.

But what we are saying is that the information was of a quality that the defense should have had the opportunity to present that or the fruits of the information to the jury.

And it wasn’t up to the prosecutor to decide whether or not this kind of evidence should be given to was at least he could have done was leave it to the judge as to whether the jury should pass on it.

And now, at this late date, the Court of Appeals says he probably breached his obligation but the evidence wasn’t sufficiently exculpatory and in that respect, the Court of Appeals is invading the providence of the jury which in Maryland law is the sole judge of the exculpatory value of admissible evidence and in that respect, we were denied equal protection under all the opinions in the Brady case.

Mr. Chief Justice, may I have about three minutes on the question of the admissibility?

Joseph Forer:

Mr. Needle also states the Maryland law very seriously when he says that there would not be admissible under Maryland law the fact of a prior false rape claim.

In Smallwood versus Warden which was a case by the federal district court of Maryland which is quoted in our brief, Chief Judge Thompson granted habeas corpus because of a suppression of a prior rape accusation where there wasn’t even evidence that it was false.

In this case, neither the majority nor the minority adopted his theory that this evidence is clearly been held inadmissible.

They said it might well have been admissible and we’ve all — but we don’t pass on it in this content.

Now, what he is talking about is the case of Rau against the State which was decided in 1919 which was a statutory rape case in which the evidence that the child involved had made a prior accusation was offered solely on the theory that it impugned the character of the girl.

At this time, because there was so little knowledge of psychiatry, it wasn’t offered on the theory for which it is now considered admissible, namely the theory of showing either mental illness or mental bias, a kind of corrupt bias against the class of people namely men of whom the accused are members.

The Maryland Court of Appeals in 1919 well this kind of evidence is not admissible as going to character because we don’t care about character.

But that is why neither Smallwood against the Warden nor the majority here said this means that the evidence is inadmissible for other purposes.

For other purposes it is clearly admissible.

Of those grounds, I want to thank the Court for giving me the extra time.

Thank you.