Greene v. Massey – Oral Argument – November 28, 1977

Media for Greene v. Massey

Audio Transcription for Opinion Announcement – June 14, 1978 in Greene v. Massey

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Warren E. Burger:

We will hear arguments next in 6617, Greene against Massey.

Mr. Chandler, I think you may proceed when you are ready.

John T. Chandler:

Mr. Chief Justice and may it please the Court, I am John Chandler attorney for the petitioner Richard Greene admitted pro hac vice in case number 76-6617.

This case arises upon the petition for the writ of certiorari to review the decision of the US Court of Appeals for the Fifth Circuit which affirmed the denial of Habeas Corpus relief of the United States District Court for the middle district of Florida.

The issues presented in this case are twofold, one brought forth by the petitioner and one brought forth by the respondent Raymond Massey.

First issue is whether the Double Jeopardy Clause in Fifth Amendment bars retrial of the defendant for the same offense where in Appellate Court reverses a conviction because the evidence was insufficient to prove the charged crime.

Secondary issue, in one which respondent would have as threshold is whether Federal Habeas Corpus review of the Double Jeopardy Claim is precluded after consideration of that claim by the State Courts.

The case briefly and it is a case that arises some 13 years ago or almost 13 years ago.

In 1965, Richard Greene and Jose Manuel Sosa were found guilty of first degree murder, they had a trial by jury, they made both a motion for directed verdict of acquittal and a motion for a new trial.

It is noteworthy that the motion for new trial was stricken and never was operative.

On November in 1968, the Florida Supreme Court, on appeal of this death penalty case reversed the conviction and remanded for a new trial.

Due to the insufficiency of the evidence, this was a per curiam decision and was unequivocal as for the reason for the reversal.

Upon remand of this reversal by the Supreme Court of Florida, there was a change of venue.

Defendant was tried then in Orange County, Florida instead of in Hillsborough County, Florida.

In the trial Court, at that time the defendant made a motion to dismiss on Double Jeopardy grounds.

Alternatively, he asked that the case be transferred to the Criminal Court of Record because in Florida the Criminal Court of Record would then have jurisdiction so as we will no longer be operating in a first degree murder situation.

That motion was denied, at that time the defendant applied to the Second District Court of Appeal with a suggestion for writ of prohibition to prevent again on Double Jeopardy grounds, his retrial for that same offense.

Now this was denied by the Second District Court of Appeal.

On January 15th, 1972 after defendant was retried again for first degree murder, he was convicted and the prosecution at that time presented new witnesses and the defendant after the trial was sentenced to life imprisonment this time rather than the death penalty upon a jury verdict recommending mercy.

Thurgood Marshall:

Mr. Chandler, the first opinion of the Court, the Supreme Court of Florida, is that in the record here?

John T. Chandler:

It is in, yes sir it is in the record, Justice Marshall.

Thurgood Marshall:

Where is it?

John T. Chandler:

Oh, in the record of this case?

Yeah.

John T. Chandler:

It is not contained in the Appendix of this case.

You quote from one paragraph of that, on Appendix page 3, I believe.

Thurgood Marshall:

But the whole thing is not here.

John T. Chandler:

That is correct, that decision is not in.

After the retrial and after he was again convicted.

The defendant then appealed to the Fourth District Court of Appeal of Florida which affirmed the conviction.

John T. Chandler:

That Court recognize that the issue was an intriguing one intellectually but felt for some reason not apparent in Florida law that they could not decide the Double Jeopardy claim because of the Second District Court’s opinion which had said that the retrial did not violate Double Jeopardy.

They said that the issue was res judicata and therefore they could not decide it.

William H. Rehnquist:

Or might they not have found, felt themselves bound by the earlier opinion of the Supreme Court of Florida too which said the evidence did not meet the reasonable doubt, standard and went on to city, interest of just as require a new trial?

John T. Chandler:

Mr. Justice Rehnquist, I do not believe the Fourth District Court of Appeal was at all motivated by that.

It was motivated only by the Second District Court of Appeals opinion which had denied the writ of prohibition.

The Second District Court of Appeal had for some reason or had recognized a standard of proof which they said that the Supreme Court did not reverse because of the insufficiency of the evidence but that certainly is not apparent from the Supreme Court’s opinion and also was not required by the Second District Court of Appeal to recognize that type of legal proposition.

William H. Rehnquist:

It certainly is apparent from the Supreme Court of Florida’s opinion though, that the Supreme Court of Florida intended that there be an another trial.

John T. Chandler:

Absolutely that is correct.

In 1975, this Court denied a writ of certiorari on this issue and in 1976 the U.S. District Court from middle district of Florida denied a petition for writ of Habeas Corpus recognizing, also the interesting nature of the issue and saying that it would have been inclined to grant the writ, had the matter been of matter of first impression in the United States Court of Appeals for the Fifth Circuit but that because there was prior precedent in it and because the prior precedent of the Fifth Circuit would allow retrial, he had to deny the writ.

The US Court of Appeals in January of 1977, affirmed the Fifth Circuit Court opinion on the basis of the precedent that the District Court had recognized namely, United States versus Bass and Musquiz versus United States.

Now if the petitioner’s proposition in position that the Florida Supreme Court held the evidence to be insufficient as a matter of law, both the US District Court and the Court of Appeals for the Fifth Circuit recognized that this was the case.

If the Trial Judge had directed acquittal when the original motion for directed verdict had been made, obviously there could be no retrial on the Double Jeopardy principles because at that time the man had been convicted.

The Florida Supreme Court’s holding indicates that the Trial Judge erred in not in acquitting because this is as much a function of the Trial Judge to direct a verdict of acquittal on proper motion made as it is for the Appellate Court to reverse on the insufficiency of the evidence.

Then why should the not the appellate find the insufficient evidence, not entitle a defendant to a directed verdict of acquittal?

The reason, and which results in what I believe is an anomaly lies I think in the history of the Double Jeopardy cases before this Court.

Thurgood Marshall:

It is also the question that the Court did not say that?

John T. Chandler:

Excuse me.

Thurgood Marshall:

The Supreme Court of Florida could have said that in view of the fact that the judge should have granted, we hereby grant it, acquit him and turn him lose.

John T. Chandler:

They could have done so Mr. Justice Marshall.

Thurgood Marshall:

But they did not?

John T. Chandler:

But they did not.

Thurgood Marshall:

And that is your problem?

John T. Chandler:

That would be my problem, it is my problem here but that is not.

The law of Florida is that when a Court reverses on the insufficiency of evidence, they may reverse and remand for a new trial and so that the question does not arise as to whether they could have said what the trial judge’s actual duty is, in fact in a recent –.

Thurgood Marshall:

My brother Rehnquist raised his point that he emphasized the fact that what I am actually doing in the interest of judges, I am saying that you get a new trial.

John T. Chandler:

That is correct.

That is the whole gravament of what he said.

John T. Chandler:

That is correct, that is what the Court is saying, you get a new trial rather than saying in the interest of Justice, a new trial is not the proper vehicle in fact the directed verdict.

Thurgood Marshall:

But suppose the Court said to Counsel, I will give you a new trial or I will let you stay.

What would Counsel say?

John T. Chandler:

Well, with a choice like that, there either really is no choice and as I say the reason for the treatment of Double Jeopardy and retrial in situations like this comes from a line of cases from this Court.

The earliest being United States versus Ball and in the Ball case, the reversal was based upon an insufficient indictment and in that situation, we did not quibble and we did not argue that retrial would not be proper.

The first case, and the real troubling case and the case that troubles all of the Circuit Courts of United States and many of the trial of the State Courts is Brian versus United States.

Where this Court said that retrial after finding of insufficient evidence did not violate the Double Jeopardy principle.

Apparently, because of a notion that by appealing the defendant waived the Double Jeopardy argument.

At that time, the possibility that there may be a reason to delineate reversals for insufficient evidence and reversals for other trial era did not seem to — it was not apparent to the Court.

But in Sapir versus United State, this Court reversed a Circuit Court, United States Circuit Court opinion of the Tenth Circuit, which had first, reversed a conviction and directed acquittal and then on rehearing, under its power, under 28 USC section 2106 decided that it would remand for a new trial.

This Court reversed the District or the Circuit Court’s opinion per curium without opinion.

In a concurring opinion by Mr. Justice Douglas, it was stated that the reason for this was when a directed — that a finding of insufficiency of the evidence was entitled to the same treatment as if the trial judge had directed a verdict of acquittal.

For that reason, Mr. Justice Douglas said, they must reinstate the initial reversal and so that the man could not be retried.

Was that the case in which Mr. Justice Douglas has a separate opinion, made a distinction between cases where motion for acquittal had been made and cases where no such motion had been made but only a motion for a new trial.

John T. Chandler:

That is correct and then this Court, seemed to accept his proposition.

Well, this Court was simply silent, there was per curium on it.

John T. Chandler:

It was not that in that one, in that case.

But in Foreman versus United States, this matter was in dictum at least seem to be settled just as Justice Douglas said it should be treated.

However, the Foreman case was not an insufficiency of the evidence case.

In fact it was the — the problem there was a bad jury instruction.

It was reversed for that reason and again we would not quibble for retrial on that situation.

The motion for a new trial is really not a valid criterion.

It does not relate logically to the insufficiency of the evidence.

Does Florida have a ground for retrial ordered by the Trial Judge sits in effect and I am thinking of the practice in my own State of Arizona as a thirteenth Juror and says there may have been sufficient evidence to warrant submitting the case to the jury, but I think Justice requires that he get another shot at someone to grant a new trial.

John T. Chandler:

No, Your Honor, the trial judge does not have that power.

All he can do on the evidentiary grounds on a motion for a — say he just has no authority than to grant a new trial on the basis of insufficiency of the evidence.

John T. Chandler:

Oh yes, insufficiency of the evidence, yes.

Well, then.

On the grounds that he should not have submitted the case to the jury in the first place.

John T. Chandler:

Yes, you can make both the directed verdict of acquittal for in a motion for new trial on the same grounds on the State of Florida.

Well, but if you make a motion for a new trial on the grounds that there was insufficient evidence to have submitted the case to the jury, I take it you get a new trial and not a dismissal.

Does it not constitute a waiver?

John T. Chandler:

I do not believe so, You Honor, because —

Well, what is the law of Florida on that score?

John T. Chandler:

The law of Florida is that you may appeal both the directed verdict.

You may appeal your denial of the directed verdict of acquittal and the denial of the motion for a new trial.

It was formerly thought in Florida.

No, but could he – could the judge deny the motion for acquittal and grant the motion for a new trial on the grounds of the state of the evidence?

John T. Chandler:

I think, it is not settled in Florida whether that could be done or not.

I believe that it could be done at that time though.

The defendant could appeal the denial of the directed verdict of acquittal and so that, what I am really saying here is that it is not settled, it is unclear logically, I think, in the State of Florida.

Just I think as it is unclear in the Circuit Courts of United States.

Well, I do not see why it is so illogical to connect motions for new trials with the state of the evidence, when in all full lot of places around the country, Brother Rehnquist says, new trials are granted on the grounds that the evidence is not very convincing to the judge.

John T. Chandler:

That maybe only in Florida if it is unconvincing.

There must not be sufficient evidence on an element of the crime.

To submit the —

Well, I guess — he just, he just has doubt enough that he grants a new trial.

John T. Chandler:

Yes, I think.

He does not say that the evidence is insufficient.

He does not grant the motion to acquit.

John T. Chandler:

I think it is done.

If the law in Florida is as you say it is in Florida.

How does the trial judge decide whether to grant a new trial or a direct judgment NOV on the basis of insufficiency of the evidence?

John T. Chandler:

I think, how does the trial judge decide that?

I am not sure how we would ever decide that issue, but I think, logically if the evidence presented before the jury was not sufficient to convict then the defendant is entitled in Florida, as he is in lot of other states to directed verdict of acquittal and so that a motion for new trial can be made on other grounds.

But he — it cannot be made on the grounds of insufficiency of the evidence?

John T. Chandler:

It can and in fact —

Within what criteria does the trial judge apply in deciding that motion?

John T. Chandler:

I do not believe, I do not believe there is any criteria, I could not delineate what the criteria is.

In this case, you made a motion for a new trial a motion for a directed verdict of acquittal.

John T. Chandler:

That is correct.

And both were denied.

John T. Chandler:

That is — well, the motion —

Both were denied by the trial Court.

John T. Chandler:

Yes.

The motion for a new trial was denied actually was never heard, it was stricken.

Because an appeal had already been filed and in Florida trial Court it was without jurisdiction to hear the motion for a new trial.

Well, I am just looking for your statement of the case in your brief.

John T. Chandler:

That is correct.

Both were made and both were denied.

That is right.

That is what you say.

And were both made on the basis of insufficiency of the evidence?

John T. Chandler:

The motion for a new trial, I believe was grounded on several and different errors, one of which may or may not have been —

Including, probably the insufficiency of the evidence.

John T. Chandler:

Very well, could have been and the reason for that is —

Potter Stewart:

It is in the form but they do not have it in there.

John T. Chandler:

That is right.

The reason for that Mr. Justice Stewart is that in Florida the law is very unclear as to whether you had to make a motion for a new trial in order to appeal the sufficiency of the evidence, it was not until after after this case was decided that in other than death penalties cases and this was one of those.

Whether you had to make such a motion or not and later it was determined that no indeed you could appeal the denial of a directed verdict of acquittal.

But, that law was very confusing, so the counsel really had no choice, if he wanted to cover the–

If he wanted to protect his clients.

John T. Chandler:

Yes.

That is the State of the law was I suppose that —

To deny the —

If a motion for a new trial was made and a motion for directed verdict of acquittal was made along with each grounded on the proposition that there was insufficient evidence to convict, it was within the discretion of the Trial Court which, whether to grant one motion.

John T. Chandler:

Or either motion.

Or either motion, or both or neither.

Is that about right?

John T. Chandler:

That is about right.

It would have to do.

And I say that is because there is no previous delineation between what is the correct procedure.

Warren E. Burger:

Judge, the trial judge could avoid any possible Double Jeopardy question by granting the motion for a new trial on the basis of some trial error raised, could he not?

John T. Chandler:

That is true and still the defendant could appeal the denial of the directed verdict of acquittal motion, so that he still has the chance of raising that issue and reversing the trial judge on the denial of that motion.

Warren E. Burger:

Trial judge is concerned about double jeopardy problem and the consequences of granting on the insufficiency of the evidence.

He certainly would grant the new trial and on the trial error would not he. Presumably.

John T. Chandler:

I am not sure that I understand but if I —

Warren E. Burger:

Well, there is no Double Jeopardy problem rises if he grants a new trial for trial error.

John T. Chandler:

That is true.

Warren E. Burger:

And is insufficiency of the evidence.

John T. Chandler:

That is true.

if there is error, but I have assumed that the judge would do his duty as he saw it and would reverse for the proper reason.

I am not sure that I am responding to the question.

Warren E. Burger:

Well, if he was in doubt, suppose the dual motion is made as here.

John T. Chandler:

If he was in doubt —

Warren E. Burger:

He has some doubt about the sufficiency of the evidence and he has some doubt about the trial error.

I repeat my question, if he were cautious and wanted to avoid any problems of Double Jeopardy, he would then grant the new trial for the specific trial error, would he not?

John T. Chandler:

Yes, I am sure he would.

Warren E. Burger:

And then avoid all these problems.

John T. Chandler:

If he rather than face the issue on if that was his purpose I would guess that is what he would do.

Thurgood Marshall:

What would happen if the appeal asks for new trial?

John T. Chandler:

He could, I suppose we could say that he could waive if he asked for a new trial.

Thurgood Marshall:

And we do not know what happened and Goddamn they do it.

John T. Chandler:

Well, I believe we do Your Honor, Mr. Justice Marshall from the decision in the case which is cited in the opinion of the Fifth Circuit which is printed.

Thurgood Marshall:

But do I know that defense counsel did not ask for new trial, do I know that?

John T. Chandler:

The defense counsel did not he did ask for a new trial.

In the trial Court.

John T. Chandler:

In the trial Court, yes.

Thurgood Marshall:

You know something we are talking in the Supreme Court.

John T. Chandler:

And reversal for certain errors he would be asking for a new trial that would be retrial for errors other than the insufficiency of the evidence.

Thurgood Marshall:

What did he ask for?

John T. Chandler:

He asked.

Thurgood Marshall:

We do not know.

John T. Chandler:

Yes.

Thurgood Marshall:

We do not know do we?

You have get that won’t we?

John T. Chandler:

But we do.

Thurgood Marshall:

The real problem is how do you differentiate between the right of the trial judge to make the distinctions and deny that right to Appellate Court.

John T. Chandler:

We do not deny the right Mr. Justice Marshall and we say that if the Court reverses on the insufficiency of the evidence the man cannot be retried if it reverses on the other grounds then it could be retried but if the evidence is insufficient there should be no difference between the trial Judge’s finding and Appellate Court’s finding and therefore either case he would been having been entitled to directed verdict of acquittal, he would have been subjected to multiple trials which is the real test for Double Jeopardy I believe in the cases of the District Court.

Thurgood Marshall:

The test you are talking about, you use that magic word of acquittal.

John T. Chandler:

Yes.

Which you do not have the benefit.

John T. Chandler:

No.

we do not have a final acquittal but we have the –.

Oh you do not have any acquittal.

John T. Chandler:

No, we do not we have the Supreme Court saying that the trial judge erred and not — they said that the evidence is insufficient to convict meaning the jury did not have sufficient evidence before him to convict this man and therefore he was entitled to an acquittal if that was the state of the law.

I believe that it after Foreman and Sapir that it probably is the state of a law and it definitely should be the State of the law.

Thurgood Marshall:

In my knowledge of other case, I know word acquittal is in there.

He is acquitted of one offense and now he is guilty on the other one.

John T. Chandler:

Absolutely no doubt Your Honor and this is a little different from that because we are talking about.

Thurgood Marshall:

We just do not have the magic word.

John T. Chandler:

That is right we are talking about entitlement to it and in Florida you will not.

Thurgood Marshall:

And you say you have everything but the actual word.

John T. Chandler:

That is correct and you will never get and I believe in Florida that those magic words you will always get a retrial even if the Court says the trial judge erred in not finding the evidence sufficient or insufficient and they would remand for a new trial.

What if in the trial Court the defendant’s counsel moved only for a directed judgment for acquittal and rested on that and that was denied in the trial Court and that was appealed and the only ground for appeal was that the Trial Court erred in not directing an acquittal because the evidence was insufficient, and if the Supreme Court of Florida held yes Mr. Defendant Appellant, you are correct, now surely the Court would then could the Court then grant a new trial.

John T. Chandler:

Under law established by this Court under Foreman, I believe —

No, No I am taking about in Florida.

John T. Chandler:

In Florida, Yes he could.

Even though the only error alleged and sustained was that the Trial Court erred in not directing an acquittal because of the insufficiency of the evidence, abstract cases never a reason.

John T. Chandler:

Mr. Justice that language is never a reason.

I suppose the careful lawyer always makes a double motion.

John T. Chandler:

That language is never reason.

That situation in effect has a reason and has reason very recently in Florida in a case that was submitted in our reply brief and McArthur versus State and in fact they have said the evidence as in sufficient and in the interest of justice, we remand for a new trial under Florida’s Appellant Rule which the Fifth Circuit says is coextensive with the 28 U.S.C 2106 in the Federal Court.

And was that a case in which the only motion was a motion for directed verdict of acquittal grounded upon the insufficiency of the evidence.

John T. Chandler:

No it was not, but what I am saying is that case is so strong would show that the result would be the same in Florida and indeed would be the same in some other states.

Now what is that case is it in your reply brief.

John T. Chandler:

Yes it is in the reply brief.

I do not seem to have your reply brief.

John T. Chandler:

The reply brief was filed last week at the–

I do not have it.

John T. Chandler:

Alright.

It is a Xerox.

Yeah I still do not have it, I will get it.

John T. Chandler:

The opinion is, it was decided by the Florida Supreme Court on September 30th of this year.

It is case number 49-526.

I can not supply a copy of the case.

And what is name of it again.

John T. Chandler:

Mcarthur versus State.

Mcarthur.

Thank you.

John T. Chandler:

Our whole position is grounded on Greene versus Unites State which was incorporated which was incorporated in Wilson and Jenkins and that the underlying principle of Double Jeopardy.

Warren E. Burger:

We will resume there at 1 o’clock.

You may continue, Mr. Chandler.

John T. Chandler:

Mr. Chief Justice may it please the Court.

Our position succinctly stated is that a finding of insufficiency of the evidence on appeal should have the same remedy as a directed verdict of acquittal if the trial judge had remitted, had ordered that in either case Double Jeopardy prevents retrial.

This is based upon underlying principle of Double Jeopardy, be the prevention of the expense ordeal harassment of the defendants by subjection to multiple trials, defendant so that even one who is innocent stands a greater chance of being found guilty.

The effect of deciding in petitioners favor today would be that the Appellate Courts may direct entry of a judgment for a lesser included defense if the evidence is adequate on the record.

Mr. Chandler, do the Florida Appellate Courts have that power.

I notice reading this per curium that it can be read as saying that the evidence was insufficient to establish beyond a reasonable doubt that the defendant has committed murder in the first degree, if you put the emphasize on the last phrase it might be implicit that there is plenty of evidence to convict him of secondary murder or perhaps of man slaughter.

Some of the State Appellate Courts have the power to forced with enter a verdict of guilty of a less included defense, and in some States I think that the Appellate Court do not have that power, do the Florida power Courts have that power?

John T. Chandler:

Yes respondent has cited that in is brief as one of the alternatives the Court has and we would also say the Appellate Court, of course, could direct an acquittal, all the included defenses as well.

But they clearly could have converted the conviction to one for say, seven degree murder?

John T. Chandler:

Yes they could do so.

Finally.

John T. Chandler:

That is true.

Without impairing your client’s right the jury trial.

John T. Chandler:

That is true.

Retrial after mistrial and all of the other situations previously before this Court in Double Jeopardy situations, upon reversal say, for other trial error other than insufficient evidence is not affected by the result that we seek today, I will reserve rest of my time for rebuttal.

Warren E. Burger:

Mr. Hipler.

Harry M. Hipler:

Mr. Chief justice, may it please the Court.

I have raised two issues in my brief the stone issue point A and my point B the Double Jeopardy, claim I want to argue the stone issue in the latter part of my argument if Your Honors please to reserve several minutes.

We feel Your Honors that there is no Double Jeopardy violation when an Appellate Court reverses on insufficiency of the evidence grounds as well as others.

We feel that the Federal Statutes, one is 2106 as well as Florida Appellate Rule 6.16 (B) in Florida as well as some 30 States Statutes allow an Appellate Court to reverse on insufficiency of the evidence grounds as well as reversible error grounds.

We feel that in our situation the case of bar where the Appellate Court felt that it was appropriate and just using the words in the interest of justice, the trial would be proper upon remand it was within their power and discretion, despite the sufficiency of the evidence in the case of bar.

We feel also if Your Honors please basically that the case law enunciated by this honorable Court through the years has permitted what the Florida Supreme Court did in the first reversal back in 1968.

The Bryan case reversed where the State rather Government there failed to make Prima Facie case,Prima Facie evidence case according to the position taken by the petitioner there.

The Yates case where this Court reversed and ordered a new trial and discharged other defendants and went ahead and said if there has been some evidence as to conspiracy in the 1957 case, I think the words were used probably insufficient as to some and there was some evidence where the jury could have indeed convicted as swither, so it was reversal for a new trial as a sum clearly within the Court’s discretion rather than review the history going back to US V. Ball and the more recent cases of Sapir and Foreman which do indicate that in Appellate Court if Your Honors please do have that power to reverse for a new trial.

We also feel if Your Honors please that there is nothing inconsistent with Double Jeopardy Clause that would preclude in Appellate Court to reverse for a new trial that the public policy reasons clearly favor the Government or the prosecution in the case at bar and we do not say in all the situations that an Appellate Court can go ahead and reverse for a new trial or Government may take an appeal.

For example, if the jury comes back not guilty or if a Trial Judge enter the judgment of a acquittal then it is clear that Government can not take an appeal.

Also if there is prosecutorial overreaching in the sense as US V. Jorn where discharge of the jury occurred without the defendant’s behest, without his request and it did not fall into what is been termed adamant necessity or absolute necessity, going back to US V. Perez we feel new situations, the law is clear.

Could I interrupt with a question?

Harry M. Hipler:

Yes sir.

Do I correctly understand as a matter of Florida law when the evidence is insufficient the Appellate Court may either direct that new trial be held or the judgment of acquittal be entered?

Harry M. Hipler:

Your Honor Florida law does permit that.

But I think the words are used that the defendant would be discharged rather than going ahead entering a judgment of acquittal.

Is there any thing in the Florida law that tell us which of the two alternatives should be granted by judge in any one kind of case, and how does the the Appellate Court decide which alternative to impose?

Harry M. Hipler:

One alternative or one possibility would clearly be if the prosecution could not further adduce any evidence in a subsequent trial then it would– of course–

Be it any thing other than what was already on the record.

Harry M. Hipler:

Right, for example, a possession of drugs case which are very common where the Florida Supreme Court has discharged the defendant because in constructive possession case of, course, the proof did not show (Inaudible) or knowledge and so forth of the defendant.

That would be one situation where there would be no further proof.

Well does that mean Mr. Hipler that we read the interest of justice language to mean that whether that prosecutor represents that if he is given a second try, he can come forward with more evidence than he had the first time.

Harry M. Hipler:

No Your Honor, I think the cases decided by the this Court would not permit that where the interest of justice does indicate as well as the concurring opinion as joined in by the remainder of the justices, is that the under Florida Appellant Rule 6.16(b), in light of the fact, it was a murder conviction, and a death penalty case and in the light of the fact that the weight of the evidence was weak then the Appellate Court can go ahead and reverse for a new trial.

I thought that you told me that the the only reason for new trial would be the supposition that the prosecutor had additional evidence.

Harry M. Hipler:

No Your Honor that as one of the – no no I said that the prosecutor could not further adduce any evidence, then it will be senseless to go ahead and order new trial.

If all the evidences in the Court’s record and it would be senseless to reverse for a new trial for failure to produce any further evidence then there would be no retrial.

Are your answers to Justice Steven’s question based on statements made by Supreme Court of Florida or by your own observation as to what would be be a good legal system.

Harry M. Hipler:

No I would, by my observation is to the way the Florida Supreme Court has been operating.

I have a sufficiency of the evidence case, I did not think that it would be required as for showing the Court, this honorable Court, whereas, there is no further proof that could be adduced at a subsequent trial as to possession of drugs.

Then the defendant was indeed discharged, that has occurred in Florida.

By the same token I would ask this Court to take notice of 6.16 (b) which goes ahead and reviews the sufficiency evidence in the favor of defendant regardless of the fact that whether or not the defendant raise that on appeal.

In other words , he need not even raise it and the Supreme Court goes ahead and does it and I would think that would even going beyond anything of course that the Double Jeopardy Clause or any thing that Constitution would require to go ahead and do that even despite —

Thurgood Marshall:

Mr. Hipler, am I correct in assuming that more evidence was produced at second term.

Harry M. Hipler:

Your Honor, I do not know where Mr. Chandler, petitioner’s attorney got that.

I do not — the record is of course devoid of what was produced in the second.

Thurgood Marshall:

Well what we should be arguing at the exact same testimonial was in both trial, would there be no Double Jeopardy.

Harry M. Hipler:

Your Honor I would be arguing that if the exact same testimony would be produced it would not be Double Jeopardy.

Thurgood Marshall:

Why not?

Harry M. Hipler:

Pardon me.

Thurgood Marshall:

Why not?

Harry M. Hipler:

Your Honor the fact remains that in a sufficiency of the evidence –.

Thurgood Marshall:

That the State is entitled to two different juries?

Harry M. Hipler:

No Your Honor that the defendant is entitled to two different juries whether weight is weak that is the point Your Honor that–

Thurgood Marshall:

No but no if the exact the Government, the Supreme Court said that this is enough, not enough evidence to convict a man of first degree murder and then he is tried with exact same evidence and that would not be Double Jeopardy.

Harry M. Hipler:

Your Honor, I take issue–

Thurgood Marshall:

Do not have to get a little more evidence.

Harry M. Hipler:

Your Honor there are cases which are close where the death penalty has been invoked where you would you see proper and just to remand for new trial to give another jury an opportunity to consider the same evidence or whatever evidences they could produce, that is what happened in this case.

That is what I am saying, there is nothing improper about that despite the sufficiency of the evidence.

I have relied if Your Honors please on the concurring opinion is joined in by the justices which indicates the reason for the reversal, whatever the words reasonable doubt were used by the per curiam which indicates that the real reason had to do with an improper admission of here say evidence.

So I would say that, that was of course the reason and of course here say is not substantive evidence in Florida.

Unless you fall into an exception and he did not fall into exception here so there had been more of a procedural error than a substantive Your Honor.

Thurgood Marshall:

So what you are arguing is that it was not just the insufficient evidence, there was also an error involved?

Harry M. Hipler:

Yes Your Honor that is where I am suggesting in reading the opinion that goes ahead and elaborates on the point, yes sir.

Will your position remain the same if the Appellate Court had said normally said what it said that the evidence is insufficient to prove beyond a reasonable doubt, but they went right ahead and said the motion for acquittal should have been granted but nevertheless we are ordering a new trial.

Harry M. Hipler:

Well I would certainly–

As far as Double Jeopardy is concerned you will make the same argument.

Harry M. Hipler:

I would argue that but I think the that if they said that the judgment of a acquittal should have been granted that would certainly weaken the prosecution’s case.

What they said all but that they said–

Harry M. Hipler:

Your Honor, I do not concede that they said all but that.

They said that the interest of justice require new trial despite the sufficiency of the evidence that is what they said if Your Honor please.

Cases in Florida do discharge the defendant, I certainly could have cited some and I could if Your Honors would desire me to but in murder conviction as in this case, it seems to me that defendant indeed gets two cracks as he did here if Your Honors please that is what I am suggesting.

Well is this what the Florida Court said, we are the of view that the evidence was definitely lacking and establishing beyond a reasonable doubt.

That the defendant has committed murder in the first degree.

Harry M. Hipler:

Yes sir that is technically that is what they said.

Well technically.

Well actually in every other way that is what they said and if there is a follow up from that, that the motion for acquittal should have been granted.

Harry M. Hipler:

No Your Honor if indeed it would have been granted or should have been granted I am confident if the State had not made out of Prima Facie case of guilt but it probably would have been granted.

The words used for example if I could just go off and aside in a contract action you look to the intend of the parties, not necessarily what the words are, you look behind scenes that is what I have done in this situations as well as the Fifth Circuit and US District Court, for example, US v. Wiley suggested that no matter what the words were used by an Appellate Court it could not be improper to retry defendant and not be violation to Double Jeopardy, if the weight of evidence was weak.

I would suggest that, is what the Florida Supreme Court said here also–

Why they said that was insufficient to prove guilt beyond a reason for that.

Harry M. Hipler:

Yes sir that is what the words that were used by the Florida Supreme Court.

Warren E. Burger:

Could the Court have on its own entered a regiment of guilt for second degree as a lesser included defense.

Harry M. Hipler:

Your Honor there is statute that provides for that in Florida that does go ahead and do that.

That would be fine if they are going to retry for second degree murder, they are retrying for first degree.

No no the question was whether the Appellate Court on its own could do that.

Could convert the conviction into one for second degree murder finally with no new trial.

Harry M. Hipler:

Entering a judgment for second degree murder.

Correct.

Harry M. Hipler:

Yes there is a Florida Statute that allows that 924.34.

Warren E. Burger:

The failure to do so here should lead to what analysis?

Harry M. Hipler:

Your Honor their failure to do so here, the conclusion is that they felt that the weight of evidence was weak and that the state.

Warren E. Burger:

Weak on first degree murder.

Harry M. Hipler:

Enough to get by a jury but because of the death penalty being invoked and because the conviction for murder in the first degree that the interest of justice required a new trial that is why I would suggest that again Wiley v. US which favor opposition and if the Government is relied upon that and its brief.

Mr. Hiller, do you take the view that Florida has category of cases in which the evidence is insufficient to prove guilt beyond a reasonable doubt and unless 24 juries unanimously agree that it is enough.

Is that the rule?

Harry M. Hipler:

No Your Honor, I do not, but I take the view is that where evidence is technically sufficient to get to a jury–

And 12 jurors convict?

Harry M. Hipler:

Yes sir.

That is not enough, but if 24 jurors convict under the same evidence then it is enough.

Harry M. Hipler:

No Your Honor, what I am suggesting is that where the evidence as in this situation was enough to get by a motion for judgment of acquittal, any a motion for a new trial that the Florida Supreme Court 4:3 said we are going to give this defendant another chance and if the State produces the same evidence and the jury comes back guilty and indeed the defendants were guilty that is what I am suggesting.

Now I would also submit and vigorously argue that there is nothing inconsistent with the Double Jeopardy Clause to preclude that, to give the defendant so called two times.

Well that is just what the Double Jeopardy Clause prohibits, does not it?

Harry M. Hipler:

Yes sir.

That is correct unless of course.

Warren E. Burger:

Depends on one’s point of view at what stage one might want two cracks but later stage he might insist as he does now on own only one.

Well, it prohibits the State from having two cracks not the defendant from having two cracks.

Harry M. Hipler:

Right, okay that is the point also–

Warren E. Burger:

He does not want two cracks had at him

Harry M. Hipler:

Yes sir–

Warren E. Burger:

That is what the Double Jeopardy clause is about, is it not?

Harry M. Hipler:

Right.

Of course it says no person shall be tried for more than one offense and so forth but —

Thurgood Marshall:

I do not agree that the defendant gets two cracks he would rather not have eight cracks.

Harry M. Hipler:

That is true but if indeed–

Thurgood Marshall:

What is hypothesis as to why the Court did not enter on its own motion, judgment of murder in the second degree, given their statements that have been read to you.

Harry M. Hipler:

Because it felt that if it had entered a judgment for murder in the second degree, I would think first of all that would have been the end of the case and of course that person–

I am asking what is your hypothesis as to why they did not do that?

Harry M. Hipler:

They felt that new trial–

Maybe he was guilty of first degree?

Harry M. Hipler:

Yes, Yes sir and not just may be but that the jury had come back guilty and motion for new trial was submitted to the Trial Court and–

Mr Hipler is it not entirely possible that the defense theory was it was some other person entirely. There was an alibi or something like that and so that either he was guilty of first degree murder or nothing?

Harry M. Hipler:

Well Your Honor the, that may be the case but there is nothing in this record to show that and —

Either way but there is nothing in this record to show that it would have appropriate to enter a second degree murder conviction is there.

Harry M. Hipler:

Well Your Honor that, that may be true but it is not the duty of the appellee to make all this record part of the Court.

Harry M. Hipler:

We were never ordered and–

Now but we cannot decide the case on the assumption that the record would support a second degree murder conviction can we?

Because the record simply does not tell us.

Harry M. Hipler:

Yes sir, the Court went ahead and reversed basically on a murder in a first degree conviction yes sir.

I would submit that if Your Honors please to go on that a case that is even more compelling where the State or the prosecution did go ahead and have one opportunity to test its case in front of a trial jury.

U.S V. Sanford and Perez, and those situations the jury indeed came back with nothing and if the logic as the petitioner once applied by this Court would apply and this Court would adopt it.

It would seem to me in those situations where the defendant rather than the prosecution had one opportunity that the jury came back not guilty.

Here the jury went ahead and came back guilty so I would think it is more compelling to go ahead and preclude the prosecution from retrying where jury does not come back at all.

That again is one consideration I think this Court should, one factor this Court should consider and indeed one the jury does come back guilty there is nothing to preclude in Appellate Court to go ahead and reverse.

I have argued that from the totality, the evidence we feel that there is nothing improper about going ahead and reversing for new trial.

Also, we feel that the policy arguments as in this situation where there is intertwined a legal and factual issue it is in the hearsay in Florida — the Vangallen (ph) case which is cited by the concurring opinion by the Florida Supreme Court’s Justice Erwin where the questions of law in fact are mixed and those situations would seem to me that it would be, it would not be improper in such situations to go ahead and grant the retrial for example, the hearsay being considered as substantive rather than for impeachment purposes only.

So it is not really easy to come down with a hard and fast rule.

I would also submit as a policy reason for this Court to consider that if indeed this Court feels that there is a hard and fast rule and either or proposition while I have no evidence to back me up and I do not think any one does if in an Appellate Court as in this situation feels that the evidence is technically sufficient to go ahead and affirm, if this Court does indeed hold that insufficient evidence means what it says without going behind the scenes then I would think that in close cases where the defendant would be benefited by retrial, what would happen is that the Appellate Court may indeed take the way out and say would — we are going to leave this to the province of the jury rather than going ahead and giving the defendant a new trial.

Do not you think, at this decision of the State Court is saying, as the Court saying if we had to decide that, if we had to affirm or reverse this conviction, we would affirm but we prefer to order a new trial.

Harry M. Hipler:

Yes, Your Honor, I would suggest that, that the Court could have affirmed that indeed three justices would have gone ahead but again in capital cases or in death penalty cases Florida does go ahead and go ahead and give the defendant another opportunity to test the State’s case.

Warren E. Burger:

But to adopt your theory, is it not almost necessary to carve out a new category of case where the evidence is strong, too strong to lift the man off, so an Appellate Court thinks but not quite strong enough to affirm the conviction falling between the two alternatives Justice White posed?

Harry M. Hipler:

Your Honor, I would suggest that there are all times when there is more than enough evidence for jury to convict and the Appellate Court could go ahead and affirm but it feels that because of the weight is weak that indeed the defendant may very well be able to have the opportunity to test the prosecution’s case, again, that there are times where it has indeed been proven beyond a reasonable doubt but in such situations the interests of justice do indeed require or permit the Appellate Court to–

But why do say the interest of justice require that if the man is proved there is enough evidence to support the conviction, then why is it not the duty of the Appellate Court to affirm?

Why is it acting lawlessly when it says well it is a close case, I think may be it is a nice defendant or something.

I give them another trial.

Why should the Appellate Court ever do that?

Harry M. Hipler:

Because Your Honor there is a certain amount discretion vested in Appellate Court’s —

Is that a–

Not of that kind–

Discretion of that kind?

Where do you find any opinion saying there is discretion of that kind in an Appellate Court?

Harry M. Hipler:

The fact remains that many Appellate Courts have used the Federal Statute 2106 to go ahead and remand to the Trial Court and on the other hand other Appellate Courts have gone ahead and affirmed.

Now that is not my question.

Do you know of any opinion of an Appellate Court saying that even though we think the evidence was sufficient to go to the jury, nevertheless in the interest of Justice we will order a new trial because we think may be the defendant will win the second trial?

That is really what you are arguing and that seems to me you are arguing for a lawless behavior by an Appellate Court.

Harry M. Hipler:

I would submit Your Honor it would be you know lawless behavior if there is some type of hard and fast rule.

Again there is just not anything improper, it seems to me with allowing in an Appellate Court to go ahead and reverse on such grounds.

William H. Rehnquist:

Do you agree with your opposing counsel that a trial judge in Florida is faced with very much that inquiry every time he is confronted with a motion for a new trial and a motion for judgment NOV after the jury has brought in a verdict of guilty.

Harry M. Hipler:

He, according to the criminal rules 3.600 grounds for a new trial.

One of them is indeed that the verdict is contrary to the law so that is one of the considerations by the trial judge.

Yes sir.

Thurgood Marshall:

Well, suppose the Supreme Court of State ‘x’ says that we would examine this record in this case very carefully and we find that the State has just failed to meet his burden or proven this man guilty, this time around, shall we give him another chance?

You can not tell him, I have given the defendant another chance.

They are giving the State another chance here.

They say this man was not legally convicted solely because of the failure of the State to prove him guilty so we will give the State another chance to prove it legally.

Harry M. Hipler:

No Your Honor That is not what I am saying if–

That is what the Court did here–

Harry M. Hipler:

No Your Honor, I take issue with your honors construction as to what the Court did here, I would say though, that if indeed there had been beyond the burden of proof that it would be incumbent if a failure by the State or the prosecution make it a Prima Facie case then indeed in those situations that it would be the duty of the Appellate Court to go ahead and reverse according not on —

Thurgood Marshall:

But he said insufficiency of the evidence, that is what it said, did not it?

Harry M. Hipler:

Well that is what the Court said with the concurring opinion joined in by the justices of this Court —

Thurgood Marshall:

But the court that gave the new trial said insufficiency of the evidence which I understand to mean the State did not prove the man guilty —

Your Honor–

You know what it meant.

Harry M. Hipler:

No Your Honor I am saying it did not that is what the Supreme Court said but that is not necessarily all the considerations that went into play, again I vigorously argue that to Your Honor in this honorable Court that you can not go behind what a Court uses in for example like in a contract claim or contract issues.

I vigorously argue that to this Court, there is nothing improper or unconstitutional in such a situation even the most liberal Court or one of the more liberal ones going towards the trend, US v. Wiley has even permitted that where they say there is nothing to preclude and Appellate Courts reverse where the weight is weak and I have cited that can in my brief.

There is Appellate mandated acquittal there.

Whereas in failure make at a Prima facie case, there may be very well be an Appellate mandated acquittal.

I have argued that and I maintain that here and I feel in the state feels that it falls at a minimum with in. —

Thurgood Marshall:

On this failure of having a Prima facie case and insufficiency to evidence and the difference is just what.

Harry M. Hipler:

Your honor, failure to make out of Prima —

Thurgood Marshall:

Can you have a sufficient case with the insufficient Prima facie evidence.

Harry M. Hipler:

If the State fails to prove one of the elements of a crime, then the Trial Judge would go ahead and enter judgment of acquittal.

Thurgood Marshall:

Would that be insufficiency or no Prima facie.

Harry M. Hipler:

Prima facie that would be lack of a Prima facie.

Thurgood Marshall:

Well what was in this case.

Harry M. Hipler:

Okay it was, a —

Thurgood Marshall:

Insufficiency.

Harry M. Hipler:

Yes.

Which means weight of the evidence I would submit or even if the Court, or Your Honor’s do not like the word insufficiency, I think the weight of the evidence would have been a better word.

Thurgood Marshall:

I did not say I did not like the the word I might like it.

I am saying what the word were used —

Harry M. Hipler:

That is what I am saying.

Thurgood Marshall:

That is what I am stuck with, I do not know whether you are, but that is what I am stuck with.

Harry M. Hipler:

Yes sir but I am saying that where the weight to the evidence is weak where there is nothing to preclude a retrial, that is basically what our position is and of course a legal and factual issues and there should be no hard and fast rule, also if Your Honors please I would say that when a defendant goes ahead and moves a for a new trial, where he maintains control over the situation as the defense counsel did in the Trial Court here, where he went ahead and moved for a new trial, in such a situation where I have analogized that not exactly to motion for mistrial but rather in a sense where he requests a particular relief, and I would submit that in a sense that US v. Denets (ph) and US v. Lee, does indeed support the contention that where defense requests a certain relief as defense counsel did in the Trial Court here.

There is nothing to preclude in Appellate Court or Trial of Court to go ahead and grant the defendant exactly what he requested.

That is also what I am saying and of course, good policy reasons for that which is that the burden is on defense Counsel to go ahead and request certain types of relief as again a motion for mistrial and examples of that nature.

If Your Honors please that is a basically the State’s position is well supplemented by the briefs.

If I have a few minutes I would like to basically just argue our stone proposition.

There is no petition for certiorari or whatever file by State to this Court, I believe does have power to go ahead and look at the issue after Swain v. Pressley the District of Columbia Statute goes ahead and holds, it has no suspension so called writ of Habeas Corpus to go ahead and a preclude the defendant from having his sentence and judgment reviewed ultimately by an Appellate Court and the Constitution of course, does not mandate more than one appeal indeed it does not even mandate one appeal according to some of the recent indications by this honorable Court.

I would also submit that 2254 D requires petitioner to go ahead and allege that there are some kind of deficiencies in the state proceedings that was not done in the case at bar, and I would submit that there is obviously presumption of correctness.

Also 2254 E says that where the evidence is ample that the burden and the duty is on the applicant to go ahead and submit the transcripts and trial proceedings that was not done here and again it is not the duty of the appellee, if Your Honors, please to go ahead and submit this materials to the Trial Court or whatever.

That is as to the Stone issue, if Your Honors have any questions I will be please to answer them, otherwise, I would — in sum I would say that the Double Jeopardy Clause is invariably been read by this Court to be a balancing of the equities in situations and I would submit if Your Honors please that the policy arguments that I argued here in my brief do allow an Appellate Court in the interest of justice to go ahead and reverse for a new trial.

Now you on page 29 of your brief you cite a good many Statutes from various States, seeming to authorize retrial after finding by an Appellate Court that the evidence is insufficient.

Harry M. Hipler:

Your Honor, they used the exact same words almost the exact same words as the Federal Statute 2106, many of them say that the Appellate Court is vested with a discretion one or two–

I mean that they do not expressly say that they may that the Courts may grant a new trial when they find the evidence insufficient to establish guilt.

Harry M. Hipler:

There is no words of sufficiency the evidence used except for several of them I think one of the or two of the Southern States that I have cited in there, I can not recall which ones say that the sufficiency evidence will go ahead and be considered, but none of them do but in looking rather than me going ahead and picking some of the cases, I decided to go ahead and submit the statutes at least a ones that I could find–

These statutes do not say that I do not know why are you cited them?

Harry M. Hipler:

Your Honor I cited because —

Perhaps without showing that there are some cases under the statutes applying them that —

Harry M. Hipler:

Because in a similar vein, the Federal Statute allows it and it has repeatedly allowed it.

So I would think it would necessarily follow that the States would be able to do that also that is why I cited that Your Honor.

If there are no other questions I would ask Your Honors to affirm the judgment conviction and the judgment of the Fifth Circuit.

Thank you very much.

Warren E. Burger:

Mr. Hipler.

Do you have any further Mr. Chandler.

John T. Chandler:

Yes Mr. Chief Justice may it please the Court.

On the last point about the similar State rules and statutes it is very clear, that you can look at some of those in the list and you will find Arizona, New Mexico and North Carolina are listed among them.

Those States have a case law to the contrary that you cannot retry a man, if the Appellate Court finds the evidence insufficient.

Those cases I believe are cited in my brief.

The State’s conclusion that there is a possibility that the evidence is technically sufficient but the weight of the evidence requires a new trial this proposition is not allowed in Florida and this is the weight of the evidence is the province of the jury.

How about the Trial Court, you can urge the weight of the evidence on the Trial Court in a motion for a new trial?

John T. Chandler:

Yes, you could urge the weight of the evidence you can do that at either level, but it is the entire weight of the evidence then goes to whether there is proof beyond the reasonable doubt.

Well , I am distinctly confused because and I suspect perhaps, I am not the only one.

I thought both you and your opponent agreed that a Florida Trial Judge after a jury has broaden a verdict of guilty in a criminal case could have presented to him a motion for judgment NOV, which would mean he enters the judgment of acquittal or a motion for mistrial one of the grounds for which would be against the weight of the evidence–

Motion for new trial.

John T. Chandler:

Motion for a new trial.

And at all he can do if he grants that motion is to grant a new trial.

Well, then there are two separate concepts involved, are they not?

One is against the weight of the evidence and the other is total insufficiency of the evidence.

John T. Chandler:

Your Honor, there maybe inherent and this whole idea two separate the concepts of the evidence, but what we have here is the Florida Supreme Court saying that an Appellate Court, for instance, which is ruling on what a State Court or what the Trial Court did in State versus Smith 249 F. 2d. 16 saying that there position that the State is arguing here does not exist in Florida that the jury if the evidence is sufficient that the Appellate Court must affirm and that the only time that the Appellate Court does not affirm is when the evidence is not sufficient as a matter of law to prove the crime charged beyond a reasonable doubt.

And they have reversed the same DCA, in fact, which was involved in the lower, in the opinion the one that did not grant the writ of prohibition in this case, used this rule of law to decide not to grant the writ of prohibition and the Florida Supreme Court says no that kind of law does not exist at State versus Smith 249 F. 2d. 16.

Is the trial Court’s refusal to grant a motion for a new trial, appealable under Florida law?

John T. Chandler:

Your Honor I can only say, I believe it is.

What grounds does the Appellate Court use for reviewing that denial?

John T. Chandler:

Whether the judge abuses discretion, I would broadly state it.

Let us suppose the Florida Court had said the evidence is technically sufficient to affirm, but it is weak and we are going to grant a new trial, would you be making the same argument is that your argument that the Double Jeopardy Clause requires the Court either to affirm or reverse.

John T. Chandler:

Yes.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.