Harrington v. California

PETITIONER:Harrington
RESPONDENT:California
LOCATION:Souther District Court of Georgia

DOCKET NO.: 750
DECIDED BY: Warren Court (1969)
LOWER COURT: State appellate court

CITATION: 395 US 250 (1969)
ARGUED: Apr 23, 1969
DECIDED: Jun 02, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – April 23, 1969 in Harrington v. California

Earl Warren:

Number 750, Glen Martin Harrington, petitioner versus California.

Mr. Hanson.

Roger S. Hanson:

Chief Justice Warren, may it please the Court.

This is a first-degree murder case out of the State of California from the City of Los Angeles and my client Mr. Harrington according to evidence participated in the robbery of a liquor store in the City of Los Angeles along with three other codefendants.

The interesting thing about it was the — three of the codefendants were Negro, Mr. Harrington was a Caucasian, and that is a significant factor which I’ll point out as we go along here a little bit.

The Court held the preliminary hearing in the case, according to California procedure, and at the time of the preliminary hearing why it showed quite conclusively that there’s going to be a lot of problems in the way of confessions.

It seems that all three of the other codefendants Mr. Rhone, Mr. Bosby, and Mr. Cooper had made confessions which implicated themselves and each other and Mr. Harrington in this particular crime.

At the time of the trial setting in various preliminary motions counsel for Mr. Harrington attempted to get a severance of the trials because of this problem and at that time he cited case of Delli Paoli versus United States and the Jackson versus Denno decision of this Court in an effort to get these trials severed.

These motions were denied by the trial court.

And at various times during the trial motions were made to sever the thing each time as to Harrington being denied.

I think it rather interesting that throughout this trial, numerous pages were devoted to in-chambers discussion between the counsel and the Court in an effort to alter these various confessions in such a way that no incriminating statements were made as to one man versus the other.

I set that out in my brief and it’s contained in the single appendix for the Court and I think it’s very exemplary of the impossibility in this particular case that is in most cases to make a meaningful deletion of the names to the point where in this case it became so ridiculous that the Court upon being accused by Mr. Harrington’s attorney at that time of trying to make the matter more difficult for his counsel said, “I’m going to let all of these confessions going in just the way they stand unedited.”

Now, Mr. Rhone made the confession which was probably the most damaging and I suppose the single possibly weak point in my position here is that Mr. Rhone in fact did take the stand for cross-examination.

The other two gentlemen, Mr. Cooper and Mr. Bosby are referred to Mr. Harrington as the white man, the Caucasian and various other terms never actually calling him by name which is a probably cause of the fact that they didn’t know each other too well.

And so in that particular sense neither one of the other two actually named Mr. Harrington but without a doubt because all four of them were being jointly tried, all four of them setting at the counsel table together, three negroes and the Caucasian Mr. Harrington coupled with Mr. Rhone’s confession actually naming Mr. Harrington where there’s little doubt that in my opinion all four these confessions, there are three of the confessions, solidified each other and brought home the inevitable result that took place in this particular trial.

Now, it’s my contention here of course when I filed the petition for certiorari of this Court it was prior to the decision of the Court in Bruton versus United States and Roberts versus Russell.

At the time I filed petition, I was going after a reversal of the Delli Paoli case and so when the Court handed down the Bruton decision, Roberts versus Russell decision, I anticipated the cases being remanded to the Second District Court of Appeals in California with the usual admonition to reconsider the case in a matter not inconsistent with this particular opinion.

And so I was elated to have a chance come to Washington when the Court granted a hearing in the case.

It’s my contention upon reviewing all the decisions of this Court and the prime one that I hang my head on is the Brookhart versus Janis case, 384 U.S. 1 decision by Mr. Justice Black which I’ve cited throughout my documents that I’ve filed that if there was a denial of confrontation of witnesses without waiver why it be a constitutional error, the first order magnitude and no amount of prejudice — one, a prejudice would save this error from the case.

Of course in the Brookhart case as the Court knows with malice aforethought, the confession of the codefendant was actually used against Mr. Brookhart.

It was introduced for that particular purpose and so the Court without hesitation in an eight-man opinion by Mr. Justice Black reversed that case without recourse to any consideration of harmless error rule.

In the Bruton case then if I interpret that case correctly the Court went on to acknowledge that in its opinion it would be impossible for a jury to discern the difference between confession to this type being given by (a) with an instruction do not consider against (b) only considered against (a) never against (b), by Mr. Justice Brennan in that case if I add Brookhart to Bruton, it’s my position in front of this Court today that it calls for an automatic reversal of this case and all such cases on a national basis without recourse to any harmless error rules whatsoever.

Now, in the concurring opinion by Mr. Justice Stewart in Chapman versus California there is numerous type of errors at the setout which call for automatic reversal.

As I understand Mr. Justice Stewart in that case you took position that no harmless error rule should be applied at all with these particular type of errors.

And as I go through the various types of cases that this Court has passed judgment on the Gideon versus Wainwright type of denial at counsel reversed without recourse to a harmless error and retroactively so.

The Jackson versus Denno case which is a very analogous type of error reversed without the recourse to a harmless error rule, retroactively so.

In other words, we have in one hand as I study the cases, the type of errors that actually took place during the trial itself the denial of counsel at trial.

The introduction of course confessions, this type of thing which actually permeated at the very trial itself as opposed to certain pretrial type of maneuvers in the way of the Miranda errors where the Court said that it’s a reason for reversing and not making it retroactive was because of the fact it wanted to discourage police conduct in this errors.

The search and seizure issues of course are along the same line but this type of error which we have in front of the Court today; to me, there can be no question whatsoever that it has to be resulting in a reversal without recourse to any harmless error rules whatsoever.

I think based to my own personal experience in Los Angeles and trying some major cases that I can think of no more severe error that a defense counsel would have to attempt to overcome in this particular one that took place in this case.

Roger S. Hanson:

I think it alters entirely the defense of the case.

The State of Illinois in its amicus curiae brief pointed out that after all Mr. Harrington did no more than what the State of California to its test to see if it had enough evidence to convict him, he did not take the stand.

He put on next to no defense whatsoever and I simply contend and point out to the Court that in my opinion when a magnitudinal error such as three confessions were introduced against him.

The entire strategy of the case would change.

He was — I must admit a previous loser.

He’d been doing time up in San Quentin for previous crimes.

He therefore had the problem that he would be impeached as a witness by previous convictions of a felony and so the counsel at that time apparently elected to not put him on the stand and so forth.

Therefore, I contend the entire strategy of the trial is altered by this particular difficulty and it’s impossible for any reviewing court to say with any certainty that harmless error did not take place if the Court is constrained to even apply harmless error rule to it.

The — this Court of course is considered in analogous situation in the Barber versus Page case of the past term where the preliminary hearing testimony was introduced at the trial without making an effort to get the witness in front of the Court.

Again, the reversal without recourse to harmless error rules and in the recent case of Berger versus California, the Court made it again retroactive.

And I can only conclude that this Court did the requisite amount of soul searching during the deliberations in chambers as to the magnitude of this particular error.

I don’t think the Court would make an error of this magnitude retroactive and unless it considered it to be a severe one, tremendously severe one.

And it’s my contention that because of this severity of this error, it is not at all applicable to any type of harmless error rules that must be reversed per se throughout the nation when this type of thing takes place.

William J. Brennan, Jr.:

Did Harrington take the stand himself?

Roger S. Hanson:

No, Your Honor he did not.

Harrington did not take the stand.

William J. Brennan, Jr.:

One of the codefendants testified, did take the stand.

Roger S. Hanson:

Mr. Rhone took the stand.

William J. Brennan, Jr.:

You don’t have to prove Rhone’s stand?

Roger S. Hanson:

No, actually we don’t.

Now, on California —

William J. Brennan, Jr.:

The two did not take the stand?

Roger S. Hanson:

That’s correct.

William J. Brennan, Jr.:

(Inaudible)

Roger S. Hanson:

No question about it.

Byron R. White:

Mr. Rhone’s — I take it if only Rhone had involved here, there wouldn’t been any problem on the root?

Roger S. Hanson:

Apparently not, had he taken the stand and he being the only codefendant apparently we wouldn’t have the Bruton problem but as I read the Sixth Amendment it says you have a right to be confronted by all the witnesses.

And I guess it didn’t —

Byron R. White:

But it did concern the harmless error where the confessions of any — where Rhone as far as Harrington was concerned, was there any measure or difference mean Rhone’s confession and the confession of the other two?

Roger S. Hanson:

No actually not, as a matter of fact they probably were not near as damaging for the reason I didn’t name him per se like Mr. Rhone did.

Roger S. Hanson:

Mr. Rhone —

Byron R. White:

So, in terms of the — so, in terms of impact on Harrington, his ability to cross-examine Rhone maybe — wouldn’t that in many go to be in the cross examine of the other two?

Roger S. Hanson:

Well, that’s a good question.

I contend that relying on the Sixth Amendment —

Byron R. White:

Definite it would?

Roger S. Hanson:

It has to — has to be the all the witnesses.

I can’t see how you can bifurcate the thing, he might have 49 witnesses who didn’t take the stand and one that did.

And it’s just inconceivable to me that you can split hairs on the numbers that did and the numbers that did not.

This was a very severe type of case which —

Byron R. White:

Did you say the confessions of the other two did not name Harrington?

Roger S. Hanson:

Well, did not name and explicitly it’s referred to him as the white man, the Caucasian, the Paddy and things of this nature in such a way that with all four of them, sent them to witness table.

Potter Stewart:

What other conclusion could you come to that they were likewise referring to Mr. Harrington.

Roger S. Hanson:

There’s a little doubt about it in my opinion.

I remind the Court also of the recent decision of Smith versus Illinois which was as I recall the major issue that confronted the Court was whether the question of a witness as to what your address is and he did not answer before the answer came in.

The Court sustained an objection in answering that question.

This Court reversed again summarily without recourse to any harmless error rules with the simple defect as I understand it of no response to the question where he lives.

And it was held in citing again with the approval of Brookhart versus Janis case that if there’s a denial of confrontation of witnesses, it is a constitutional error the first order magnitude and no want of the prejudice will save it.

I simply — in reading that case, to which eight members of this Court I think Mr. Justice Marshall was not on the order at the time he did not participate but apparently members of this Court signed their name to it subscribing a cent to the words of Mr. Justice Black in the Brookhart versus Janis case that this type of thing would not be subject to any type of harmless error rule.

William J. Brennan, Jr.:

Are the statements of those three in the record?

Roger S. Hanson:

Yes, every confession is in the record.

William J. Brennan, Jr.:

Can you tell me quickly where at?

Roger S. Hanson:

Well, I pointed it out; I did not index my copy of the single appendix.

Mr. Cooper’s statement begins at page 198 of the single appendix.

Mr. Bosby’s confession is on 273 of the single appendix.

Further confession by Cooper on page 321 of the single appendix and Mr. Rhone’s statements 397 of the single appendix.

William J. Brennan, Jr.:

Thank you very much.

Roger S. Hanson:

And so forth.

There, they’re spread throughout it.

(Inaudible)

Roger S. Hanson:

Yes I am and by enlarge, I might move on to that.

Roger S. Hanson:

By enlarge the chief evidence against Mr. Harrington was other than the confession was a couple of people who worked in the store who fortunately lived to tell about it.

The proprietor of the store was a woman and another male clerk was in the store.

The interesting thing about it was when these people reported the crime and made their statements to the police, the man without hesitation admitted that he said four Negroes carried this crime out.

The woman equivocated somewhat but also admitted that she had told the police that in her opinion four Negroes had carried the crime out.

It’s therefore my contention that an astute attorney in the defense of these gentlemen at least in defense of Mr. Harrington, absent the various errors that have occurred in this case which certainly have a fighting chance for an acquittal in the case because if they cannot tell the difference between Caucasian versus Negro, well perhaps other evidence that they testified to would be much weaker also.

I would ask the Court to in its opinion attempt to spell out with very specificity this Bruton, Roberts versus Russell error that has been one that has hang around for many, many years.

I’m confident if the Court does not spell it out in such a way that there can be little doubt as to what the Court means.

The Court is going to be inundated with petitions for certiorari for the next decade.

I think the case it would just proceeded this one Banks versus California is the excellent example of the fact that the Griffin rule was apparently still being emasculated by the various lower level courts around the nation and to me, they are just as — is no question that it must be subjected to reversibility per se if the Brookhart versus Janis opinion is interpreted correctly by myself.

I just can’t believe that this type of error has any different in the Gideon versus Wainwright error if I look at the Sixth Amendment and read it I see the right of counsel and the right to confront witnesses in the same paragraph.

I could read that short portion of it.

I would assure that it’s more familiar to the Court than myself and I did bring along with it because I saw the television show in Mr. Justice Black’s birthday a few months ago where you referred to the copy of the Constitution that you carried with you.

And so I had it along with me in case I had to refer to it but I think that if the Court will check the Sixth Amendment, it goes to types of rights are set forth right beside each other in the Sixth Amendment.

I can’t see that they can therefore be distinguished that the Gideon versus Wainwright case given total retroactivity was no application of harmless error rules so must the error in the Harrington case, Bruton versus United States, Roberts versus Russell, must likewise be given reversal without recourse to any harmless error rules just impossible to calculate the impact of this type of thing and I think that you actually have to get in and —

William J. Brennan, Jr.:

(Inaudible)

Roger S. Hanson:

I beg your pardon?

William J. Brennan, Jr.:

(Inaudible)

Roger S. Hanson:

That’s the Griffin error.

Yes, that’s correct.

(Inaudible)

Roger S. Hanson:

I do.

I contend that it stands exactly along where the Gideon versus Wainwright type of error and —

Byron R. White:

Or with other confessions?

Roger S. Hanson:

Well, —

Byron R. White:

What if it’s the defendant’s own confession (Voice Overlap) illegally introduced?

Roger S. Hanson:

Well, I think that’s — I think one that is of the same magnitude, it has so been held —

Byron R. White:

And you don’t get the harmless error in those cases?

Roger S. Hanson:

Well, you mean the Miranda type error?

Byron R. White:

No, just the — well, coerced confession.

Roger S. Hanson:

Well, the course — no, there’s no harmless error in coerced confessions.

Byron R. White:

And why?

Because it’s a confession?

Roger S. Hanson:

Well, I —

Byron R. White:

Most especially damaging evidence?

Roger S. Hanson:

Well, I read your majority opinion in Jackson versus Denno and I found it difficult to believe you could dissent in the Bruton case the way you did but perhaps that’s because I’m not a student after disserting the differences.

Byron R. White:

That’s the question of the defendant of the codefendant.

Roger S. Hanson:

Yes I know and I contend that’s much more damaging.

I think the confession of a man himself is a much more reliable index than the confession of the codefendant because I tried the case —

Byron R. White:

That’s the point I was making.

Roger S. Hanson:

Well, I tried the case in Los Angeles.

You probably will hear more about it, it involves the man the name of Robert Massie who contends that he has a right to be executed and I think that Justice Douglas stated the execution here a few weeks ago but he is now in San Quentin, he contends he has a right to be executed and the Supreme Court of California, I guess, agrees with him because they have gone along with.

His petitions do not have any attorneys representing him and things like these.

But I tried that case with the Bruton error in it, I mean after Bruton error was reversed and I got an acquittal of this man and of his codefendant Mr. John Vater (ph) and I think that the Court, anyone that has to check the impact of this type of thing get in and try it one time and it’s an insurmountable thing when the codefendant makes a confession because I think that people that sit on the jury will say rightfully so that only somebody with a work mind would accuse somebody.

But in the Massie case, very clear Mr. Massie came down the second time testified that he had accused Mr. Vater (ph) this crime simply because he got mad at him but he actually was not with him just because he got mad at him.

In this particular case, the inference is of course he lied about it.

But I don’t think a confession by somebody himself would be subject to that same type of attack.

If I confess that I committed a murder, I think that’s a pretty reliable index of guilt, quite reliable as opposed to my accusing somebody else and sustaining the conviction of somebody else my testimony without my getting on the stand for cross-examination.

I still have difficulty —

Byron R. White:

Yes, but you would — I suppose that if the man’s own confession may be — are more reliable?

Roger S. Hanson:

That’s what I contend and yet Jackson versus Denno this was reversed per se.

Byron R. White:

That’s right but Bruton involved a confession to somebody else.

Roger S. Hanson:

And you feel that’s not the same difficulty?

Byron R. White:

As I said —

Roger S. Hanson:

I read that but I still don’t — I don’t understand it.

Byron R. White:

I suppose you have — I suppose some very similar argument in what you got here.

Roger S. Hanson:

I’m sure that’s correct.

Well, I already referred to my opponent at this time and save the remaining amount of time for rebuttal.

Earl Warren:

Mr. Kline.

James H. Kline:

Mr. Chief Justice and may it please the Court.

Respondent and the amici joined the respondent are verily concerned of the impact of Bruton versus United States and Roberts versus Russell.

James H. Kline:

We feel that these two cases will have a profound effect on the administration of justice throughout the various states.

Now, petitioner Harrington would expand the impact of these two cases by, one, making a Bruton error per se reversible without applying any type of harmless error standard and two, by making Bruton fully retroactive.

At this point, I would like to tell this Court the experience of California as the joint trials.

We have a penal code statute which authorizes joint trials and we have obtained statistics from the Los Angeles District Attorney’s office with regard to joint trials.

For the years 1967 and 1968, statistics for these two years, from this particular county reflect that approximately 20% of the trials involved two or more defendants.

Now, if this percentage prevails throughout the state.

This represents a sizeable number of cases in California.

For instance in 1967, there was a total of 13,500 contested criminal matters tried in the Superior of Court of California.

In 1968, there was a total of 16,140 contested criminal matters tried in the superior courts throughout the state.

As you can tell the figures are progressingly getting higher and if you go back 10 years, you go back 20 years, you go back 30 years.

The adequate number of cases affected by Bruton is truly staggering.

Now, let’s turn our attention to Mr. Hanson’s first contention that the Chapman harmless error rule is not applicable to a Bruton type situation.

As I have indicated in my brief, the vast number of cases subsequent to Bruton which had discussed this issue have held that Bruton is not automatically reversible.

I submit that logic and some policy support this rule.

It is obvious that there are material variances in codefendant’s statements with regard as to their incubating effect as well as to whether the fact they added critical weight to the prosecution’s case.

Now, if an automatic reversal rule is adopted by this Court, then a Bruton situation would be reversed regardless if the particular error conceivably played any part in the verdict either on direct appeal or on collateral attack.

Indirectly, you — this Court has indicated in Gilbert versus California that a harmless error rule is applicable to a Bruton type situation.

There, if you recall the petitioner had a confession used against the man which he was mentioned approximately 159 times.

The petition — the petitioner there requested that this Court overrule Delli Paoli at that time.

And this Court declined to do so noting that the California Supreme Court had adopted in random we have — which had rejected Delli Paoli.

This Court also noted that the California Supreme Court had held the particular Bruton error harmless in Griffin and in this Court noted that the harmless error standard applied by the California Supreme Court was substantially and compliance with Fahey and Chapman.

Therefore, this Court declined to rule on overrule a Delli Paoli at that time.

Now, I would submit that the fair import of these remarks is that Bruton is subject to a Chapman’s harmless errors standard.

It should be noted that the Bruton case was an extreme case factually.

The codefendant’s statement was not admissible.

I guess the codefendant Evans as a result since it was inadmissible against Evans there is nothing on the other hand in which to alleviate any possible prejudice against Bruton.

Also, the identification evidence was much weaker against Bruton than against Evans.

And as a result on retrial, Evans was acquitted and so therefore the Solicitor General indicated because of these facts that case should be reversed.

Now, we contend that the evidence in the instant case is much stronger than was the situation in Bruton.

Before I apply the Chapman harmless error standard to the instant case, I would like to delineate six factors which I think is pertinent to any inquiry in applying Chapman to a Bruton type situation.

James H. Kline:

The first situation — the first factor to consider of course is the quality of the limiting instruction given by the trial judge.

If a particularly lucid and precise instruction is probably given to the jury before the statement is introduced in the evidence, I would think this would help alleviate some of the prejudice of an incriminating statement.

And I note with interest Frazier versus Cupp which was rendered by this Court yesterday and which in the context of an opening statement this Court indicated that a limiting instruction can be affected to that extent.

The second factor to consider of course is the nature of the codefendant’s statement.

There, the defendant assumed his fair share of guilt.

This Court noted in Bruton that it is common with codefendants to shift the blame but if the defendant assumes his fair share of the guilt that is something to consider also.

The third factor to consider also is the amount of detail concerning actions of other parties.

In other words, if the details in the incriminating confessions is quite skimpy in comparison with the other prosecution evidence, I would think this would be a pertinent inquiring applying Chapman.

The fourth factors take in consideration is the weight of the other evidence.

Now, if the weight of the other evidence is quite strong then it would be my contention that it would — the jury would be more unlikely to disobey a Court’s limiting instruction.

And the fifth factor to consider of course is the nature of the defense.

Did the defendant offer any testimony in support of his defense or did he just put the prosecution to its proof.

Thurgood Marshall:

With that there’s one more to the extent of how many confession named in the same men were introduced?

James H. Kline:

I’m sorry.

I didn’t here that Your Honor.

Thurgood Marshall:

Well, suppose you had five men jointly tried six.

James H. Kline:

Yes.

Thurgood Marshall:

And five may confront his name into six one, would you take that in consideration which had five different wounds over emphasizing — and over and over again?

James H. Kline:

Yes Your Honor.

I think that is a pertinent factor to consider in applying Chapman.

Thurgood Marshall:

Well, there were three here, weren’t they?

James H. Kline:

Yes.

There are three codefendants Your Honor who did, whose statement were introduced in evidence but has been admitted by counsel rose confession it is not subject to a Bruton type error because he was —

Thurgood Marshall:

He took stand?

James H. Kline:

Because he was — he did testify on the stand.

He was available for cross-examination and all the parties did in fact cross-examined him and in that regard I’d like to emphasize the fact that Rhone did admit making his statement enhance the situation with erroneous vastly different from Douglas versus Alabama where are the guys of refreshing a witnesses recollection the prosecutor asked the witness to either deny or affirm certain statements that he made in his confession.

This Court indicated that since the witness declined to answering this question that the other codefendant was denied his right of confrontation because he had not admitted making such a statement.

Now, that situation is different from this situation because Rhone did admit to make such a statement.

Byron R. White:

The other two confessions didn’t mention here.

James H. Kline:

That’s correct.

James H. Kline:

In that regard, like the —

Thurgood Marshall:

The other two confessions mentioned the only white man in the group.

James H. Kline:

Yes, that’s true Your Honor but before I turn my attention to the other two confessions, I would like to emphasize the fact that Rhone is the only person that does name petitioner Harrington and he’s the only one that details the activities of Rhone both before the robbery and after the robbery.

Rhone was quite explicit in telling where Harrington was while in the store at the different events that occurred in the store.

He also indicated that —

Byron R. White:

But Rhone never said in the other two in their confession never said that the only white man was Harrington?

James H. Kline:

No, they did not.

The only reference is to a white man and in that regard I would like to turn my attention to Bosby statement.

Abe Fortas:

Well, excuse me if we should decide that harmless error doctrine is applicable here in this Bruton type of situation, do you think we ought to decide whether this record shows that the error is harmless or send it back?

James H. Kline:

Your Honor, I’m very happy you asked the question because I think the lower court has used a standard which is the equivalent of Chapman and may I refer Your Honor to page 437 of the single appendix in which the — is part of the opinion of a lower state court.

Now, the lower state court summarized the admissible evidence besides the three codefendants’ confessions and they said that in summarize in the admissible constitutional evidence “it is virtually inconceivable that any jury could have escaped the conclusion that Harrington was engaged in attempted robbery and was answerable for the murder committed by his coconspirator in the course thereof.”

Now, it’s our contention that it is virtually inconceivable is the equivalent of beyond a reasonable doubt.

Abe Fortas:

You mean — but that means virtually inconceivable to the Court, is there a difference between the Court saying it’s virtually inconceivable to us on the one hand and on the other hand that is virtually inconceivable that a jury could’ve found it virtually or a juror could’ve found it virtually inconceivable?

James H. Kline:

Your Honor I think the precise language of the Court is that it is virtually inconceivable that any jury could have escaped to conclusion.

So, I think the Court itself has answered Your Honor’s question.

Abe Fortas:

Well, that’s still — still a difference between saying a jury or in the juror because if you had just one juror who felt that Harrington was not the man and that would’ve prevent him returning a guilt of verdict, wouldn’t it?

James H. Kline:

Your Honor, I would disagree with the test as you proposed it.

Abe Fortas:

Well, I’m not sure that’s the right test but if that were the test but what I’m asking, what I’m suggesting to you is there is a difference between a court saying that it doesn’t believe that a jury could’ve escape the conclusion and the Court facing up to very difficult problem which is whether a single rational jury, juror where a single rational juror might have arrived at the conclusion that he could not find Harrington guilty beyond the reasonable doubt absent these statements of the — in the confessions.

James H. Kline:

I would agree would appear — goes two different matters but I would disagree with the applicability of that particular statute.

Abe Fortas:

You would say that we ought to look at it from point of view of the jury as a whole?

James H. Kline:

Yes, the jury as a whole because after all the juries —

Abe Fortas:

But it is different, do you agree that that is different from looking at it from the point of view of the Court himself?

James H. Kline:

Well, I think the Court can look at the case as a whole, evidence as a whole and determine if any particular error in the context of the evidence as a whole is prejudicial whether a jury could’ve conceivably risk any different verdict but for the fact there was not admitted.

Abe Fortas:

I understand that these are subtle psychological inquiries that psychological differences are the greatest certainty in perhaps useless man.

You did it in terms of harmless error as the term (Inaudible)?

James H. Kline:

Yes I would think so, yes Your Honor.

And the real question here is that now as to whether Chapman constitutes mistake and a harmless error rule says, we, the judges, should take a look at this record and satisfy ourselves or prior to know and say whether this was a verdict that (Inaudible)?

The question is whether that’s unconstitutional.

James H. Kline:

Well, —

We reverse cases that we (Inaudible).

James H. Kline:

Yes, I would agree of that position.

Yes Your Honor.

So it seems to me your shadow boxing a little bit, you try to talk about the Chapman rule in terms of second guessing into the terms of one juror or in terms of the jury as a whole, how long before the second guessing what the jury would have done anytime?

Abe Fortas:

Well, I suppose if there is a question counsel is to whether the standard of harmless error adopted by the state court should be considered in the terms of state law —

James H. Kline:

Yes, Your Honor.

Abe Fortas:

— that’s what you’re talking about here is the impact of the deprival of a federal constitutional right when you’re talking about the application of a standard that this Court fixed in interpretation and applications standard of this Court laid down in Chapman case?

James H. Kline:

Yes, Your Honor.

It is true the standard utilized by the lower court that the state harmless error standard but it is my contention in view of the language of the lower court that the harmless error standard utilized as such is the equivalent of Chapman.

I’d like to point out that in Gilbert versus California, a comparable situation was thereto.

There, the California Supreme Court had utilized the state harmless error standard in reference to Griffin error and the — this Court indicated that that standard was substantially equivalent of Fahey and Chapman as a result indicated that it may not overruled Delli Paoli.

So, I would indicate that the same reasoning it can be applied here since it is the — it is virtually inconceivable as what I would equate beyond a reasonable doubt.

Now, let’s turn our attention to Bosby’s statement.

In regard to Bosby’s statement counsel for petitioner Harrington made an interesting comment.

This is contained at page 237 of the single appendix.

And his state as follows in reference to Bosby’s statement “largely here in the Bosby statement we have a statement which is not in essence terribly incriminating against Harrington as it was originally given.

He didn’t even know Harrington’s name.”

And that’s true, he didn’t even know Harrington’s first name.

He further described Harrington as a blonde headed fellow and this is contained at page 286 of the single appendix.

All the prosecution witnesses in the instant case indicated that the defendant was red-haired man that he had a bright red shinny hair and yet Bosby describes him as a blonde headed fellow and if the jury literally followed that description they would think that some other defendant besides Harrington was involved.

Furthermore, in comparison with Rhone’s confession as compared to Bosby’s confession the details of the white man is extremely limited for instance, Bosby indicated that he presumed that the white man entered the store with Charles.

Bosby did not know where the white man was at the time of the gunshot.

Furthermore, Bosby never saw him with a gun.

So, when you compare Harrington’s statement which is not — I mean when you compare Rhone’s statement which does not fall within the Bruton ambit, Bosby’s statement is extremely limited with reference to the incriminating details as to the white man’s role in the robbery.

Now, let’s turn our attention to the two statements of Cooper.

Cooper actually made two statements.

The first statement of course is an exculpatory statement.

There, he denied any involvement in the crime whatsoever.

He merely indicate that he entered the store, approached this cashier’s register, attempted to cash a check, and noticed that there’s a scuffle subsequent gun shot, he became frightened he then ran out the store, got in his car and three other people got in his car.

Interesting enough, he mentions the fact that there were other Caucasians around the store before he entered the store.

While he is attempting the cash to check at the cash register, he indicates that there was a white guy behind him.

James H. Kline:

Now, we don’t know that this white guy that was behind and refers to petitioner Harrington to some other Caucasian who — that Cooper had made reference to before.

He also indicated that there is a white boy in Cooper’s car at the time Cooper got in the car.

At no time did Cooper get in to — at no time did Cooper see the white boy with a gun which is again a variance with the prosecution testimony.

Details of the white man’s role in the robbery is even more skimpy than Bosby’s confession.

Now, Cooper second statement that is the Cooper’s confession is only three pages long.

It has a few more details of what the white man did.

Now, the four of them did go to the store, four of them did go into the store, the white man followed Cooper into the store and that is the only reference that we have with reference to the white man as to Cooper’s confession.

Again, we don’t know what transpired in the store, we don’t know whether Harrington had a gun, we don’t know whether Harrington tried to get in the cash register or not, in short, the references to Cooper and Bosby’s statement are very limited in describing the activities of the white man involved in the store.

The white man’s role implying the robbery, we don’t know about and comparison with Rhone’s confession.

Rhone is quite explicit on all these things and I would contend that Cooper’s and Bosby’s statement are merely cumulative of detail which was admissible in Rhone’s confession.

In addition, the other address presented by the prosecution was exceedingly strong for this was no circumstantial evidence as was the situation in Chapman.

We have not two witnesses.

We have three witnesses who positively identified petitioner Harrington.

We have Mrs. Robins, the proprietor of the store, her brother Mr. Ashbreath (ph) as well as a customer by the name of Mrs. Williams.

Now, two of these witnesses described Harrington as a red-haired chap.

It should be noted at the time of trial Harrington did not have red hair.

He had black hair because Harrington had dyed his hair black after the robbery.

And I would claim that this is significant in strengthening their identification since they recognized the fact that this was the red haired chap that they had seen going into the store.

Furthermore, we have Harrington’s very incriminating statements he made to the police.

Harrington admitted the fact that he was the red hair chap that had entered the store with three Negro companions that after the murder he run to the car with three other Negroes that subsequent thereto he dyed his hair red, he shaved off his red mustache and I must agree with the lower court it is virtually inconceivable that any jury would have concluded come to any other conclusion that it did even absent the error of admitting Bosby and Cooper’s statements.

Furthermore, I would think that the — as I’ve indicated earlier I think the lower court has resolved the harmless error using a Chapman test and I would analogize to the situation in Gilbert versus California which this Court indicated that when a California Supreme Court utilized a standard comparable to Chapman that was permissible and I would think the lower court did since the lower did the same thing in the instant case that should — that rational should be applicable here also.

Next, I would like to discuss retroactivity.

I approached this subject with the little bit of concern.

It is my purpose in discussing retroactivity with the hope that you would reconsider Roberts versus Russell.

Now, this Court has indicated there are three criteria in determining whether rule should be prospectively applied or retroactively applied.

They are the purpose of the rule, the reliance on the old rule, the effect on the administration of justice.

Now, the purpose of Bruton obviously is to insure the reliability of the fact find process but that purpose may not necessitate the fact that the rule has to be applied retroactively.

For instance, in Johnson versus New Jersey, this Court indicated it’s a question of probability.

She have to look to see if there’s other safeguards and by comparison I would compare the situation in Stovall versus Denno which this Court limited the retroactivity as the line of cases.

Now, surely there can be no greater effecting of the reliability of fact-finding process than to have this suggested lineup and a mistaken identification.

James H. Kline:

Certainly that leads to miscarriage of justice.

Yet, this Court indicated that in that situation you decided to limit retroactivity.

Now, I would quarrel with this Court with the fact that Bruton does not affect the integrity of the factfinding process.

To me, it does not and I would rely on the language of Judge Learned Hand who stated that while Bruton, Delli Paoli procedure rest on a fiction it still helps the jury in ascertaining the truth and I would like to emphasize the fact that statement of codefendant’s traditionally have been viewed with suspicion and distrust.

A statement of a person himself has a lot more impact on a jury that a statement of a codefendant who’s blaming somebody else and I would submit that a limiting instruction in the proper case in view of the fact that a codefendant is blaming something else —

Byron R. White:

(Voice Overlap) for reconsideration, is that it?

James H. Kline:

No, I — no, Your Honor.

I’m asking for reconsideration of Roberts versus Russell.

My discussion here is only applying to the case retroactively and I would hope that this Court reconsider Roberts and I’m just trying to indicate that why cases before Bruton should not be — should not have to comply with a Bruton’s new constitutional rule because of the fact of reliance.

For over 70 years, this Court has indicated that Delli Paoli procedure is all right.

As late as January 23, 1967 in Spencer versus Texas, this Court has cited Delli Paoli and indorsed Delli Paoli and as late as June 12, 1967 a Gilbert versus California this Court declined to overrule Delli Paoli.

And I submit that as late as 1967 in view of Spencer and Gilbert that it would been have most difficult to predict the demise of Delli Paoli.

It should be nor that Jackson versus Denno which this Court indicate for shall Bruton was decided June of 1964 and Gilbert is nearly three years later and yet this Court declined to overrule Delli Paoli.

And I would like to emphasize the fact that this does will effect the significant number of cases throughout the courts, throughout the land.

I think this new constitutional rule of doctrine of Bruton should be prospectively applied because Bruton only assist those who really bond together, those vicious criminals who engaged in robbery such as the instant case.

And Bruton helps those criminals who have been in jail, the longest if retroactivity doctrine is still adhere to by this Court that means that a conviction is 20 years old would have to be reversed and the chances of retrial are almost de minimis because of the fact that witnesses cannot be located and the fact that witnesses recollection fade.

A fully retroactive Bruton along with the fact that it is not subject to a harmless error rule were truly have a profound effect on administration of criminal justice throughout in every jurisdiction.

This is demonstrated by the fact that we have over 28 amici joined respondent.

They show us the concern of the states as to applying this rule retroactively.

So I earnestly solicit this Court and earnestly ask this Court to reconsider Roberts versus Russell since Roberts versus Russell had not been briefed and these considerations are not being brought to the Court’s attention before its decision.

So therefore, we would urge that the judgment of the lower court be affirmed.

Thank you.

Earl Warren:

Mr. Hanson, you may proceed.

Roger S. Hanson:

Chief Justice Warren, may it please the Court.

As far as the retroactivity facts of this case go, I’m sure this Court has pondered that time and time again in its decision on Barber versus Page and Berger versus California.

I feel that the damage that is going to take place in this nation has already taking place by the judgment of retroactivity by this Court.

It’s my contention that if we’re going to have a minimum of litigation in this country at appellate level, the only way that that can really be taking care of is a reversibility per se because if a court honestly, honestly applies the federal harmless error rule which I think is the very minimal that is going to come out of this discussion today.

If it honestly applies it, it has to declare beyond the reasonable doubt that the error complain of did not contribute to the conviction.

And I simply say that in 999 cases out of a hundred or out of a thousand, I just find it inconceivable to believe that if a court honestly applying that —

William J. Brennan, Jr.:

Will that contribute?

William J. Brennan, Jr.:

Spell that out a bit (Voice Overlap) —

Roger S. Hanson:

Well, I simply —

William J. Brennan, Jr.:

You say this in terms of the jury or the juror or which?

Roger S. Hanson:

Well, in the Chapman decision, the Court says purged Mr. Justice Black we prefer the approach of this Court deciding what was harmless error in our recent case of Fahy versus Connecticut.

There, we said, “the question is whether there was a reasonable possibility that the evidence complained of might have contributed to the conviction” and a little bit later Justice Black says, there is little if any difference between our statement and Fahy versus Connecticut about “whether there was a reasonable possibility that the evidence complained of might have contributed to the conviction” in requiring the beneficiary of the constitutional error to prove beyond a reasonable doubt that the error complain of did not contribute to the verdict obtained.

And that would seem to me that if —

Byron R. White:

Any he also says — he also says and apparently without meaning to make any difference between the two perhaps that absent the constitutionally forbidden comments whether honest, fair-minded jurors might very well have brought in not guilty verdicts, that’s the suit.

Did you consider that to be the same test?

Roger S. Hanson:

Well, I think it’s indulging in the type of analysis that Mr. Justice Harlan commented on a little bit ago attempting to second guess lay jury.

I think it’s dangerous and I also think that any court honestly applying that federal harmless error rule cannot come to any other conclusion that a majority of this case is must reversed.

And I know from experience in California that the lower courts out there are not going to do it because you’re too close to the ball game out there.

There’s been crimes have been committed in the state, the people are in sense about it, you have to take him to Washington where we have nine men that take a little distant viewpoint of these things and analyze them on the basis of what has been promulgated by this Court heretofore.

And I think it’s very clear that the federal harmless error rules are very minimal thing that’s going to be applied to this case if it is applied to all and I contend this Court really is not going to apply it.

I think that if the Court applies in Brookhart versus Janis case with the Bruton case —

William J. Brennan, Jr.:

I must say Mr. Hanson, I’m puzzled.

I don’t know what your distinction is.

You said that any test related to a jurors or juror was a dangerous test but and that you favors that formulation did not contribute to the verdict, well, what’s the difference?

Roger S. Hanson:

Well, perhaps there is no great difference.

I gathered Mr. Justice Harlan felt that might be some problem in attempting to for a court to say to a — to put itself in the position of a jury and say, do we as the court think that this jury would’ve come up with difference.

William J. Brennan, Jr.:

Well, you call Mr. Justice Harlan dissented in Chapman.

I’m interested in your view.

Roger S. Hanson:

Well, —

William J. Brennan, Jr.:

What you’d suggest would be the proper form of (Voice Overlap)?

Roger S. Hanson:

Well, there’s a little doubt in my mind that jurors can’t tell the difference in this error because our Supreme Court in California has exceeded that even further than that.

They have granted the fact that even judges can’t tell it.

William J. Brennan, Jr.:

Yes, but how do you test, what I’m trying to get from you is, how do you test whether or not beyond the reasonable doubt a judge may say that the error did not contribute to the verdict?

Roger S. Hanson:

Well, I agree that’s the problem I think that if the Court will not apply harmless error we don’t have the problem.

William J. Brennan, Jr.:

I’m assuming, Mr. Hanson, that we are going to apply the harmless error rule.

What I’m trying to get some help from you is to precisely how you test whether or not if the error did contribute to the verdict?

Roger S. Hanson:

Well, I just can’t believe that an error of this magnitude can ever be said noncontributory.

Roger S. Hanson:

I just can’t believe that it can be done.

It’s beyond my concept.

Potter Stewart:

What do you mean an error of this magnitude, you mean any alleged Bruton violation or —

Roger S. Hanson:

Yes.

Potter Stewart:

— or a violation, a Bruton violation as serious to this one was because the — this is so lacking in the clear violative equality of Bruton that your brother counsel says this is no even a Bruton case?

Roger S. Hanson:

Well, I don’t agree with that (Voice Overlap) —

Potter Stewart:

The fact is that the one person who identified your client by name took the stand that was subject to cross examination.

So that’s — that part it’s not a Bruton case and the three people who do not take a stand did not identify your client.

Roger S. Hanson:

Well, they certainly did by describing very well —

Potter Stewart:

(Voice Overlap) they said talk about a white man, well, there are good many millions of white men in the world.

Roger S. Hanson:

Well, I’m aware of that but if that argument holds any water then they must have convicted him on something else beside those statements because if the statements were to be believed that they were exculpatory as Mr. Harrington why approves them why he went been convicted.

Abe Fortas:

Mr. Hanson, wouldn’t you agree that a great deal of difference between these two considerations on the one hand what is the — what — does the Court conceive of as the impact of this particular error namely the admission of the confessions of a codefendants?

That’s number one.

Number two, what does the Court believe that considering the record, the rest of the record without reference to the confessions of the codefendants?

Was there a — is there beyond reasonable doubt in the Court’s mind whether from its point of view or its assumption of the jury’s point of view convincing evidence beyond the reasonable doubt that this man was guilty.

Roger S. Hanson:

Well, I think —

Abe Fortas:

I’m asking you whether you would — whether you agree that those two things are different that is to say one, did the admission of the confessions of the codefendants contribute to the result or two, eliminating the confessions of the codefendants does they remain in the record evidence beyond the reasonable doubt of a — to shorten up that this — that the defendant was guilty?

Roger S. Hanson:

Well, I, in point number one, I certainly agree there is a marked difference between those two statements, a very marked difference because I think the second statement is more analogous to the federal harmless error rule namely if there is an error, this magnitude in the case did that contribute and I think in most all cases you have to say, did contribute but that’s —

Abe Fortas:

Well, that’s the first one.

You heard the Banks argument that’s the first alternative I put.

You heard the Banks argument here in preceding case?

Roger S. Hanson:

Yes I did.

Abe Fortas:

And there what we’re talking about a standard that used by the California Court to the effect that looking at the evidence as a whole and discounting the comment, the improper comment the Court felt that that beyond the reasonable doubt, this fellow is guilty.

Roger S. Hanson:

I’m aware of that, that’s so-called state harmless error rule.

Abe Fortas:

Yes.

And goes to an evaluation of the total record absent the unconstitutional aspect of it and I was suggesting that perhaps there’s a difference between that and an evaluation of whether the error contributed to the verdict.

Roger S. Hanson:

I quite agree.

I think there is a marked difference between those two types of analysis.

I think the first one is typical of the State of California’s position.

The latter one is the federal harmless error rule which Justice Black in the Chapman case said that when there is a constitutional error of federal nature we prefer to apply our federal harmless error rule to the case.

Earl Warren:

Mr. Hanson, the Court appreciates very much your having accepted this assignment to represent this indigent defendant, we consider that a real public service.

Roger S. Hanson:

Thank you, Your Honor.

Earl Warren:

We’re always comforted by the fact that lawyers are willing to do that.

So, we appreciate it very much and Mr. Kline, we appreciate diligent and fair manner in which you represent the State of California.

James H. Kline:

Thank you, Your Honor.