RESPONDENT: United States
LOCATION: Kingsley Books, Inc.
DOCKET NO.: 137
DECIDED BY: Warren Court (1956-1957)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit
CITATION: 352 US 985 (1957)
ARGUED: Jan 22, 1957 / Jan 23, 1957
DECIDED: Jan 28, 1957
Facts of the case
Media for Gold v. United StatesAudio Transcription for Oral Argument - January 22, 1957 in Gold v. United States
Audio Transcription for Oral Argument - January 23, 1957 in Gold v. United States
Number 137, Ben Gold, Petitioner, versus the United States of America.
Mr. Lowther, you may proceed.
Joseph A. Lowther:
Mr. Chief Justice and may it please the Court.
I should like to amplify briefly upon my answer to the Chief Justice's question at the close of yesterday's hearing.
The Chief Justice asked -- assume that in a -- an instance, in a hypothetical instance, it was shown that intentionally and knowingly, a representative of the Federal Bureau of Investigation was sent to investigate sitting jurors but that -- and that, rather, on a hearing conducted after the fact had become known, the reaction of those jurors as inquired into by the trial court was the same as the reaction of the jurors in the case before the Court, the Gold case.
And my -- and the Chief Justice's inquiry was, "Would that necessitate a mistrial or a new trial if the mistrial had been denied?"
And my answer was, it would have.
As I view it, the question then evolves, why would it, in that instance, if the reaction of the jurors weren't the same?
And my answer to that, Mr. Chief Justice, and members of the Court, is this.
That if it were shown in a hypothetical instance that the Government itself was guilty of misconduct which it undoubtedly would have been where it to send the FBI to investigate jurors, that incident in and of itself, apart from the reaction of the jurors, whether they were the same as in the Gold case, would be sufficient to use a phrase to shock the conscience of the trial court and call for a mistrial, not because the reaction of the jurors in the hypothetical and in the present case were the same but because the Government was guilty of misconduct.
And I believe, Mr. Chief Justice, that that is the distinguishing feature of the case.
Now, briefly, may I advert very briefly to one of two other points with respect to the situation that was before the Court yesterday during the Government's argument.
It is clear in the first place that the calling of the remaining 11 jurors including the two arguments by Judge McLaughlin singly for interrogation by him was done with full consent of the petitioner, defendant in the court below, appearing at page 1646 of the transcript of the record.
The thing that the petitioner in the court below did not want the trial judge to inquire into when he called the remaining 11 jurors in was, they are subjective reaction to the -- the contact, if they had heard of it.
But under the Remmer decision, the Court was bound to do so because the first Remmer case said, "He must inquire into the impact of the jurors."
And Judge McLaughlin did that.
There is another point that I should like to call to the Court's attention.
The reason that the jurors who were interrogated by the trial court exhaustively and fully and fairly were not told that the contact was not the result of anything on the part of the defendant, Gold, or on the part of government counsel in the Gold case was because when the Government counsel suggested that that be done, there was an objection on the defendant's part.
And that objection appears, if Your Honors please, on pages 1625, 1627 of the record as I read it.
If Your Honors please, the last point is that the Remmer case, as both of them say that in a situation where there has been a communication with that sitting trial juror, there arises not an absolute presumption, but a rebuttable presumption that the burden rests upon the Government and rests heavily upon the Government to rebut the presumption.
This situation before Your Honors is not the Remmer case at all.
The vice of the Remmer case, as I view it, was that the trial judge, after the contact was brought to his attention, didn't tell the defendant a thing about it, an ex parte almost in secret, investigated the matter.
And the first time that defendant knew anything about it was after the Remmer trial.
There was no hearing immediately.
Here, there was.
There was a full hearing, an exhaustive hearing conducted by the trial judge in which all parties were called before the Court and there was full opportunity for the defendant to ask questions if he wanted to or to pose questions to be asked if he wanted to and it -- and they did that, if the Court please.
I respectfully suggest --
What was the tangible between the essential and the sufficient (Inaudible)?
Joseph A. Lowther:
Determinable, Your Honor, the episode was -- the hearing was on March the 22nd, a Monday, 1954.
And it's my recollection, Your Honor, and I may be in error on this that the Government's last witness was on the stand booth hence -- and the case went to the jury maybe a week afterwards, somewhere in there.