Gray v. Netherland Page 4

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Media for Gray v. Netherland

Audio Transcription for Oral Argument - April 15, 1996 in Gray v. Netherland

Mark E. Olive:

The district court a tually dealt not with notice but with prosecutor misconduct or deception with respect to what the issues would be.

What the district court expressly focused on and found was not that it was a failure of notice, but that it was the prosecutor violating his unequivocal pledge and ambushing the defense through tactics after violating... planning to violate his direct promise, and this is the J.A. at 350, and the prosecutor planned to violate his direct promise.

So it was not so much in the district court an issue of notice as an issue of a prosecutor taking away someone's due process rights by saying we're going to do A and then actually introducing the issue of B.--

Now, in the Fourth Circuit, it is quite right that the respondent was successful at calling the issue one of notice and actually going so far as to call it one of discovery of every piece of evidence, which has never been the complaint in this case.

The complaint has always been, we were told on day 1 that X was going to happen, and we were told on day 4 that Y was going to happen, and X was an intentional misstatement.

It intended to deflect us in developing proof on one of the most inflammatory cases in the history of the Tidewater area, and the reason that that tactic was utilized is because the case couldn't be proved in a fair proceeding.

The Commonwealth came to this proceeding and said to defense counsel, we're going to do A. If we let you know about B and C too soon, you'll find out that there's no proof that Coleman Gray committed the Sorrells crime.

The only way we can prove it by the way we're going to go about proving it is deflection--

Sandra Day O'Connor:

Well, but what the district court found was that the constitutional defect in the penalty phase hearing was that Gray was confronted and surprised.

It violated Gray's right to fair notice and rendered the hearing unreliable.

Now, the district court went on to talk about the prosecutor's tactics, but in its description of what the constitutional violation was, it was a violation of the right to fair notice, and that seemed to be what the Fourth Circuit dealt with, certainly, in its opinion.

So it does appear that the present focus of your argument before this Court is somewhat different, namely, before us a focus on whether the defendant has a right to rely on the avowal of the prosecutor that all that would be introduced were the defendant's statements, and because of that, find a due process violation, and that does seem to be something that was not the subject of the holdings below.

Mark E. Olive:

--In the district court at page 352 of the Joint Appendix, the district court does talk about notice, but the district court also refers to the moral standards of fair play after describing what can only be described of, if you accept it as correct, not especially moral, a plan to violate a direct promise to defense counsel.

Sandra Day O'Connor:

Yes, but it described the constitutional violation as the violation of lack of fair notice.

Mark E. Olive:

But when I go on in that sentence, the district court Judge Spencer is saying the Commonwealth's Attorney, Ferguson's tactics, and that's not a matter of notice, per se, violated the moral standards of fair play and violated the Due Process Clause, so to me that is... what went awry here was, indeed, notice, but this is notice plus.

This isn't even very difficult.

This is intentional misleading.

It's not just a matter of whether or not someone was given 3 days, 2 days, 4 days, or 30 days, and whether due process requires--

Anthony M. Kennedy:

Yes, but it has to be that, because let's assume that there was deliberate deception.

It doesn't follow from that that there must be some kind of punitive sanction put on the prosecution.

We ask what follows from the deception.

Mark E. Olive:

--Well--

Anthony M. Kennedy:

Is there a request for a continuance?

Is there a request to exclude the evidence?

Here, the thrust of the argument made in the State court was that the evidence had to be excluded, and now you're shifting ground.

Mark E. Olive:

--I... my position on the State court record, like the district court's position on it, and I don't think it's an unreasonable one, is when I stand up and say, I'm not ready, the judge knows that I'm asking for a couple of things.

Either give me more time, or keep this evidence out.

That's the only two ways of interpreting I'm not ready, and the reason the judge did neither is because Commonwealth law doesn't require it.

You're not entitled to notice, and you're not entitled to be... have it kept out, so no matter what you show on a continuance it does not matter.

William H. Rehnquist:

Well, with respect to your statement that the prosecutor made a certain avowal, I'm going to offer this and this only with respect to this aspect, ordinarily there's not much discovery in a criminal case in Virginia, is there?