Henderson v. Kibbe

PETITIONER:Henderson
RESPONDENT:Kibbe
LOCATION:Terminal Railroad Association (where Lovasco allegedly stole the firearms from a mail facility)

DOCKET NO.: 75-1906
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 431 US 145 (1977)
ARGUED: Mar 01, 1977
DECIDED: May 16, 1977

ADVOCATES:
Lillian Zeisel Cohen – for petitioner
Sheila Ginsberg – for respondent

Facts of the case

Question

Audio Transcription for Oral Argument – March 01, 1977 in Henderson v. Kibbe

Warren E. Burger:

We will hear arguments next in 75-1906, Henderson against Kibbe.

Mrs. Cohen, you may proceed when you are ready.

Lillian Zeisel Cohen:

Thank you.

Mr. Chief Justice and may it please the Court.

The question presented by this case is whether a State Court criminal conviction should be set aside as fundamentally unfair, because the Trial Judge did not explain the issue of causation to the jury.

The Court of Appeals for the Second Circuit answered this question in the affirmative “on the limited and singular facts of this case”.

The court held that in this case the jury may not have been aware that they had to decide the issue of causation and alternatively that if the jury was aware of this element the instruction was not detailed enough.

Petitioner believes that the decision below is erroneous.

First, because the issue of causation was focused for the jury throughout the trial by the prosecution and by both defense lawyers.

Second, because the record controverts respondent’s assumption that it would have been to his advantage to if had a detailed instruction on the issue of causation, and third, because the ultimate question that was decided by the court below and upon which its decision rests to wit whether the jury instruction was adequate was essentially a question of state law and not a matter for habeas corpus review.

Respondent and his codefendant were convicted of the crime of murder in the second degree under a section of the New York Penal Law, which provides that a person is guilty of murder when under circumstances evincing a depraved indifference to human life.

He recklessly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.

A defendant is reckless under New York Law when he is aware of and consciously disregards a substantial and unjustifiable risk that a particular result will occur.

The facts in this case are essentially undisputed.

On December 30, 1970 in the evening respondent Kibbe and his codefendant Roy Krall met a man named George Stafford in a bar in Rochester, New York.

At that point, Stafford had already been refused service in the bar, because he had had so much to drink.

Kibbe and Krall agreed to give Stafford a ride home when Stafford indicated that he was afraid to drive his own car.

The defendants later admitted that they had already formed the intent to take the money, which Stafford had been flashing in the bar.

First however, the three men went to two more bars, one of which refused Stafford service again.

Kibbe and Krall then drove Stafford to a rural area outside of Rochester.

They took his money.

According to the defendants, Stafford lowered his trousers and took off his boots to show them that he had no more money.

Stafford’s girlfriend testified at the trial however that in fact because of an injury to his leg he could not remove his right boot.

However, Stafford’s state of undress is accounted for.

The fact is that he was left essentially undressed at the side of a two-lane unlit road, which was banked on both sides by snow.

The record establishes that it was four degrees outside.

Stafford was not wearing his jacket or his boots.

These were handed to him by respondent Kibbe with the advice that Stafford get inside so that he not freeze to death.

One essential fact remains, and that is that at this point Kibbe and Krall drove off leaving Stafford on the side of the road having fallen into a snow bank, and they took with them his eyeglasses.

Now there is no dispute.

Potter Stewart:

What was first added two things.

I did not understand your statement of facts.

What advice do they give him?

Lillian Zeisel Cohen:

They advised him to get inside so that he would not freeze to death.

Potter Stewart:

What, inside his clothing or…

Lillian Zeisel Cohen:

No, they advised him to get inside somewhere, they did not…

Potter Stewart:

There was no inside, was there?

Lillian Zeisel Cohen:

Well, this is the point.

It is undisputed that there was an open gas station in the area.

Krall in the statement he later gave to the police said that they left Stafford 75 feet away from this gas station.

The prosecution introduced physical evidence to show that in fact Stafford had been left a quarter mile away from the gas station.

Potter Stewart:

The gas station was,in any event, on the other side of the road?

Lillian Zeisel Cohen:

That is the critical point.

And not only was it on the other side of the road but Kibbe and Krall both acknowledged that they knew this.

So, when they told him to get inside some place, and they knew that the gas station was on the other side of the road, they realized he had to cross the road.

Moreover, Krall acknowledged, at least Krall acknowledged that there was in fact at that time on the road traffic going in both directions.

Potter Stewart:

Since I have interrupted you, I did not understand you, what you told us about falling into a snow bank, who did that?

Lillian Zeisel Cohen:

Stafford, when he left the car, fell into a snow bank of which I think is some indication of the drunken condition in which he was.

Potter Stewart:

But he did not leave the road very far, did he?

Lillian Zeisel Cohen:

No, apparently he could not leave the road very far, because it was snow banks on both sides of the road.

He apparently fell into the snow that is on the side of the road.

Potter Stewart:

Into, but not down the bank?

Lillian Zeisel Cohen:

Not at all.

Potter Stewart:

So far has anybody observed?

Lillian Zeisel Cohen:

No, there is no intimation of that in the record.

Half an hour later…

Potter Stewart:

Was this, what kind of a road was this, a state two-lane road?

Lillian Zeisel Cohen:

I gather it is a county road.

Potter Stewart:

Monroe County?

Lillian Zeisel Cohen:

Yes, and the main feature from our standpoint that is relevant is, that it was a two-lane highway and that there was no artificial lighting over here.

Potter Stewart:

But I was wondering about how much traffic there was on?

Lillian Zeisel Cohen:

Well, there is testimony on traffic, although respondent disputes the amount of traffic.

As I say, Krall himself admitted that there were cars going in both directions at the time that they abandoned Stafford.

At the time of the accident, which took place a half an hour later at least three cars converged on that point.

And as we point out in the reply brief, the driver of the car which ultimately struck Stafford indicated that passersby as they came along after the accident stopped to give him assistance, so that there may not have been heavy rush hour traffic, which might exist in a major city.

Potter Stewart:

That was the rush hour this was what 9 o’clock at night?

Lillian Zeisel Cohen:

This was 09:30 in the evening, so that it may not have been a rush hour, but on the other hand it was not in the early morning hours when you would expect there would be very little traffic on the road.

But there is affirmative evidence, the cars were passing on the road and there is the admission by Krall himself that there were cars going in both directions when they did abandon him at the side of the road.

Half an hour…

Potter Stewart:

Krall was not a party to this?

Lillian Zeisel Cohen:

No, apparently he filed the petition jointly when this first begun, but I do not know that he apparently withdrew.

Potter Stewart:

Record does not show?

Lillian Zeisel Cohen:

No, I do not know the answer I am afraid, but he did not pursue it to the Second Circuit.

Half an hour later after he was abandoned, Stafford was struck by a light pickup truck going 10 miles over the speed limit.

The accident occurred one quarter mile away from the gas station.

Stafford at the time of the accident was sitting in the middle of the lane on the same side of the highway as he had been abandoned.

Warren E. Burger:

Let me get this in setting a little bit.

This case was tried in the New York State Courts and the Trial Court?

Lillian Zeisel Cohen:

Yes.

Warren E. Burger:

And there was a conviction?

Lillian Zeisel Cohen:

Yes.

Warren E. Burger:

Then it was reviewed by the Appellate Division?

Lillian Zeisel Cohen:

Yes.

Warren E. Burger:

And they affirmed the conviction?

Lillian Zeisel Cohen:

They did.

Warren E. Burger:

And then what happened?

It went to the Court of Appeals?

Lillian Zeisel Cohen:

Then it went to the Court of Appeals.

Warren E. Burger:

And they affirmed the conviction.

Lillian Zeisel Cohen:

They affirmed the conviction.

Warren E. Burger:

And then it went to United States District Judge on Habeas Corpus, so that is the fourth time around.

And he said the trial was fair and there was no problem to find it out that no objection had been made at the trial on this issue.

Lillian Zeisel Cohen:

Well, I think ultimately what is critical is that he looked at the alleged error in this case, and he felt that it was not a substantial violation and that he was simply being called upon to review jury instructions that that was not the province of habeas corpus review.

Warren E. Burger:

It is only on the fifth time it got into one of the fifth courts of the judgment, the trial court was…

Lillian Zeisel Cohen:

Must set aside, and I might add with one dissent that it was not unanimous decision by the Second Circuit.

Now, from the beginning of this trial the two lawyers representing Kibbe and Krall attempted to shift the responsibility for what happened to the driver of the truck, Michael Blake.

They did this in several ways.

First, they cross-examined Michael Blake extensively about the circumstances under which he struck Stafford.

They cross-examined the medical examiner to show that there was no chance that death was caused by anything except the impact from the truck, and they also argued this in summation, and they argued it very graphically, and I think very emotionally.

Krall’s attorney actually said to the jury that if anyone in this case was depraved, and if anyone in this case caused Stafford’s death, it was Michael Blake, and interestingly, the officials had taken no action against him for his wrongdoing.

At the same time they both pointedly disputed the forseeability of Stafford’s death.

How they argued?

Could Kibbe and Krall have foreseen when they left this man by the side of the road that along with come this pickup truck, driving 10 miles over the hour and that the driver would not swerve or brake?

Potter Stewart:

Mrs. Cohen, was there any question in this case as to the immediate cause of death i.e. the being struck by the (Inaudible)?

Lillian Zeisel Cohen:

No, that was firmly established.

The injuries refer that…

Potter Stewart:

No suggestion that he died from poisoning or for injuries received anywhere?

Lillian Zeisel Cohen:

Nothing extraneous, no.

It was clearly established that it was the impact of the truck and that was…

Potter Stewart:

That was the sole immediate cause?

Lillian Zeisel Cohen:

The sole immediate cause of death.

Now, in short as the court below itself found the issue of causation was constantly being placed before the jury by the defense, and I might add the prosecutor responded in kind arguing that even though these defendants were not the sole cause of death, even though they were not the immediate cause of death, nevertheless they were responsible, and they were approximate cause of death.

Now, not withstanding, the fact that the theory of the defense was to deny that Kibbe and Krall had caused death.

Neither defense lawyer objected when the trial judge did not define the element of causation for the jury.

We believe there are two…

Thurgood Marshall:

And they neither raised in the Appellate Division either?

Lillian Zeisel Cohen:

No, they did not, and it was the same lawyer at least representing respondent Kibbe who represented him on this direct appeal.

The issue was raised in the Appellate Division by the dissenting Judge, and it was answered by the majority there, who believed that he was not deprived of the fair trial.

It was first explicitly raised in behalf of these two defendants when the case got to the Court of Appeals.

So that they did not take an objection at the time of the charge and as I indicated we believe there are two possible explanations for their decision.

Lillian Zeisel Cohen:

The first is that they were satisfied that the issue of causation had been focused for the jury.

The second is that they realized that under New York Law, an explicit charge on causation would have effectively deprived them of the opportunity of arguing to the jury that it was the negligence of the driver that was to blame, and in that way attempting to sway the jury away from the responsibility of the defendants.

Warren E. Burger:

The prosecutor on the contrary has emphasized to the great extents, the conduct in leaving the man out on the road and accountability that he would be exposed to great danger.

Lillian Zeisel Cohen:

All of the arguments in this case are very emotional in that sense.

The facts are really very dramatic.

They are very unusual, but they are very dramatic.

The picture of this very helpless man in the state of undress left in the freezing weather on the wrong side of road without his glasses.

This was hammered out constantly, and that was hammered up by the prosecution to show responsibility, and it was disputed by the defense who said it simply was not foreseeable.

With respect to counsel’s likely satisfaction that the issue was properly before the jury, I point to the statement by counsel for Krall who even before the charge to the jury said in summation, “You probably have the accounts well in mind since we have all gone over it.”

Now at that point, in the trial, the indictment had been read to the jury by Kibbe’s counsel in summation.

It had been outlined by the District Attorney in his opening.

The record indicates that it was read to the jury during the voir dire as each new panel was brought in.

Thereafter, Krall’s attorney proceeded to read the indictment to the jury, and the Judge at the beginning of his charge read the indictment to the jury.

The Judge also read the provisions of the statute after emphasizing that every element of the crime had to be proved beyond a reasonable doubt, and ultimately while the jury was deliberating the indictment was given to them so that they could track the charges.

Despite these repeated statements of the law to the jury and despite the fact the causation was argued so graphically to the jury by both defense counsels, the court below questioned whether the jury was aware that it had to decide the issue of causation.

This conclusion in my opinion cannot be sustained on the record in this case, and we believe that the explanation for the court’s speculation that the jury may not have been aware of this issue, which was the focus of the trial was it is failure to make an analysis of this trial as mandated by this Court in Cupp against Naughten.

In Cupp, this Court specifically reaffirmed what it called a fundamental principle that a single jury instruction may not be evaluated only in the context of the overall charge, but in the context of the entire trial.

Potter Stewart:

There was nothing very new about that idea.

Lillian Zeisel Cohen:

No, the Court used the words, “fundamental principle”, it took it as a given, and in doing so emphasized the relevance of the witness’s testimony and the relevance of the arguments of counsel.

In the instant case, and so far as this Court below acknowledged these factors, they did it in a footnote considering the fact that this is supposed to be an alternate holding in the case, and they discounted them in much the same way that they discounted the relevance of reading the statute and reading the indictment to the jury, that is, they lifted each of these factors out of the context of the trial, and they examined them one by one, and they rejected them, instead of making the overall evaluation, which Cupp requires of whether or not the trial as a whole was fundamentally fair.

Now, respondent attempts to distinguish Cupp on the grounds that the alleged error there was corrected within the confines of the charge itself, and there was no recourse to the other events of the trial.

To me, this argument highlights the real distinction between Cupp and this case.

Cupp involved a challenge to an affirmative instruction to the jury.

The jury was told there that it should find that the prosecution’s witnesses had told the truth unless the presumption of truthfulness was overcome.

Therefore in Cupp it became necessary to determine whether anything in the remainder of the charge offset the impact on the minds of the jury of that directive by the trial judge.

The Instein (ph) case is quite different.

The charge to the jury in the Instein (ph) case was perfectly adequate as far as it went, and in fact the court below characterized much of the charge scrupulous.

We believe that because the trial judge did not affirmatively mislead the jury, did not affirmatively say anything to them, which had to be erased from their minds.

Warren E. Burger:

We will resume there up to 1 o’clock Mrs. Cohen.

Mrs. Cohen you may continue.

Lillian Zeisel Cohen:

Thank you. Mr. Chief Justice, and may it please the Court.

Before the recess I was addressing respondent’s contention that Cupp against Naughten was simply a case involving a self-correcting instruction.

Petitioner believes that this argument ignores the analysis that was endorsed by the Court in Cupp without I might add denying its validity.

In fact because Cupp involved a challenge to an affirmative instruction to the jury whereas this case involves an omission, resort to what happened during the remainder of the trial becomes even more germane.

Because the Trial Judge in this case did not affirmatively misadvised the jury or mislead the jury, there was nothing which had to be erased from the minds of the jurors or as respondent says, neutralized.

There was no infection of the rest of the trial.

The rest of the trial was perfectly adequate.

Therefore, the question is simply, whether the record as a whole shows that the gap in the charge was effectively filled by the events at trial, an approach which is consistent not only with Cupp but which is consistent with the approach used in all habeas corpus review.

In addition to its failure to properly apply Cupp the Circuit Court in its evaluation of this State Court instruction also failed to credit factors upon which it has relied in its own cases to sustain its own federal convictions.

In a series of cases of which the best example is United States against Papa, in 533 F.2d. The court below, sustained federal narcotics conspiracy convictions despite the failure in each of those cases, on the part of the Trial Judge to charge the element of knowledge to the jury.

In each instance, the Circuit Court determined that the jury was aware of the missing element, because the District Judge had read to the jury both the statute and the indictment.

In Papa it was done repeatedly as it was done in this case.

It is clear therefore that by refusing to give due weight to the same factors that it has relied upon in reviewing its own convictions, the court below was effectively holding this State Court Trial Judge to a higher standard than it has held its own District Judges.

Would you be making the same argument or with the same issue being here or any other if the gentleman had been abandoned with his clothes on at the same spot, and he had managed to crawl to the fueling station, and then he was murdered inside the filling station by some friends?

Lillian Zeisel Cohen:

Well, again there presupposes — there are certain facts…

Perhaps you had never prosecuted them, but assume you had, would this kind of an instruction had been adequate to pose the question?

Lillian Zeisel Cohen:

Well, New York Law, so far as we have been able to determine, has no standard or evaluation of contributory negligence, and certainly does not seem to follow the decision cited by the respondent, the North Carolina decision which is to the effect that if the victim has found safety, and then for reasons of his own, abandons it, and is then injured or killed, that is not foreseeable. New York does not seem to have a…

He never found safety apparently as soon as he got to the filling station he was killed by somebody else.

Now is that — of course he never would have been out there, he never would have had to go to and got in the filling station except for the fact that these people abandoned him there.

Lillian Zeisel Cohen:

Well, the question ultimately would have been the same question it is in this case, and that is was it foreseeable that when they left this man at the side of the road he would then be killed for example…

That is not what the instructions said, is it?

Lillian Zeisel Cohen:

The instructions to the jury in this case said…

They said, it makes him cause alright, but did not talk about foreseeability.

Are you now suggesting that perhaps the issue really was foreseeability or…

Lillian Zeisel Cohen:

The issue was foreseeability throughout the trial.

Well then how the jury know that the issue was foreseeability?

Lillian Zeisel Cohen:

They knew that the issue was foreseeability, because it was argued to them effectively by all three lawyers in this case, the prosecution, and the two defense lawyers.

Then the judge says do not listen to them, I will give you the law.

Lillian Zeisel Cohen:

No, on the contrary the judge said to them very explicitly, so long as you find the basis for counsel’s arguments in the evidence you may follow counsel’s arguments in reaching your conclusion, and I do not believe even in the decisions of the Circuit Court reviewing its own convictions it has concluded that a single statement by the judge that I am the source of the law effectively wipes out the impact of the other arguments that it has.

The issue would be the same here if he had been struck by lightening on wrong side of the road.

Lillian Zeisel Cohen:

The issue would have been foreseeability, the difference would have been that as a matter of New York Law, I would suggest that that would have been an intervening, a superseding cause, and there might have been a different case in that case.

Well, I know, but the instruction that was given to them would not distinguish between any of the three cases; the actual case, the filling station case or the lightening case?

Lillian Zeisel Cohen:

Yes, but on the other hand we are simply dealing with the facts of this case, and it is our argument in this case that had there been an explicit instruction to the jury in this case unforeseeability, the result would have been that the defense would not have had available to it the negligence that was involved in this case, in argument to the jury that the defendants were not responsible.

I think we have to sort of focus on what happened in this particular case.

It is possible to conceive of all kinds of hypothetical happenings, but that is not what happened in this case.

In this case there was simply a negligent driver who came along the road.

Under New York Law, this would have been regarded as within the foreseeable consequences of leaving this man by the side of the road in a helpless condition.

Did this judge give the usually or at least frequently given charge that you are to evaluate things in the light of ordinary human experience?

Lillian Zeisel Cohen:

Well, he had certainly instructed them on the need to prove things beyond a reasonable doubt and indicated to them what a reasonable doubt might be.

I do not recall that he specifically said that you may rely in your commonsense.

On the other hand, that was specifically argued to the jury by the District Attorney.

As a matter of commonsense, when you look at what happened in this case it must be self-evident that these men leaving this victim by the side of the road in his condition would have foreseen as reasonable man that this was a consequence of their actions.

Potter Stewart:

Is it common ground between you and your adversary, what the proper instruction would have been; had it been given?

Lillian Zeisel Cohen:

Your Honor, until our reply brief there was never any discussion of what New York Law was, and that is one of the problems that we have with the opinion below.

It was not argued to the Circuit Court.

The Circuit Court in concluding that an instruction on causation might have been helpful never had recourse to New York Law.

Instead it discussed the various decisions from other jurisdictions many of them very old.

Potter Stewart:

Well, my question is, is it clear what the instruction should have been; had it been given?

Lillian Zeisel Cohen:

In our view the instruction and the…

Potter Stewart:

No, not in your view, my question is, is it clear; is New York clear what the instruction should have been if the instruction had been given?

Lillian Zeisel Cohen:

I think yes, and certainly the decision by the Court of Appeals in this particular case reaffirms that the instruction in this case would have been that now withstanding the fact that the defendants in this case were not the sole or the immediate cause if it was foreseeable that their conduct would have resulted in the death by vehicle of this victim then you may convict him, you may convict them.

Potter Stewart:

Is it different from the ordinary concepts of approximate cause in a tort case in New York?

Lillian Zeisel Cohen:

No, I do not think it is different in the sense of the standard.

It is still a reasonable man standard, but it is just that there is a different degree of negligence that is required.

Potter Stewart:

Well, this is not negligence.

We are talking about approximate cause.

Lillian Zeisel Cohen:

Well, in this case these defendants were held to recklessness.

The charge from the jury was that you had to find that these men were aware of and consciously disregarded a substantial risk.

Potter Stewart:

Well, you have to find that what they did, caused his death.

Lillian Zeisel Cohen:

That is right.

Potter Stewart:

But my question is, is cause the same, within the meaning of this statute, the same as concepts of approximate cause under New York Tort Law?

Lillian Zeisel Cohen:

In the analysis, I would say yes, but in terms of the degree of culpability required, no.

In Kibbe…

Potter Stewart:

Now my question is do you conceive what your adversary contents that the prosecuting attorney in fact gave an erroneous description of cause?

Lillian Zeisel Cohen:

Not at all.

We dispute that in the teply brief.

Potter Stewart:

Then it is not common ground as to what the instruction should have been, is it?

Lillian Zeisel Cohen:

Well, no, I beg to differ on that because the respondent has never argued this case in terms of what the New York Law was.

Potter Stewart:

But you relied Gadiel (ph), you say, yes the Trial Judge did fail to give any instruction on the meaning of the word ’cause’ under this statute, but you say all of those blanks were filled in by argument of counsel, and among other things the prosecutor argued it at some length, but your adversary says but he gave the wrong concept of cause, he gave a but-for.

Lillian Zeisel Cohen:

Under New York Laws we point out in the Reply Brief, but-for certainly enters into the consideration in this case and in every case where causation is involved.

It is not the sole element that maybe considered, and it was not…

Potter Stewart:

But the prosecutor told the jury it was.

Lillian Zeisel Cohen:

No, I do not believe that he did in this case.

He did discuss the but-for element and the respondent has conceded that that is a relevant element, but he did do it in the context of an argument, which was essentially a foreseeability argument.

In other words, we believe that respondent essentially lifted that but-for statement out of the context of the entire trial, not simply out of the context of the summation of District Attorney.

Potter Stewart:

I am not clear about your answer to my first question which was, is it clear what the instruction should have been if it had been given?

And if it is clear then I suppose you and your adversary agree on what it would have been.

If it is not clear, I suppose you to…

I cannot point you to a model instruction on causation.

Lillian Zeisel Cohen:

I can only point you to the New York decisions, which have dealt with the question of causation, and from those I have submitted to the Court what I believe a correct instruction would have been.

Potter Stewart:

That is the New York Court of Appeals.

Lillian Zeisel Cohen:

The New York Court of Appeals that these instructions which we have submitted to this Court in our Reply Brief is the appropriate instruction.

Potter Stewart:

But here there was no instruction.

Lillian Zeisel Cohen:

There was no instruction in this case.

On the other hand…

Lillian Zeisel Cohen:

There was none asked for, and interestingly counsel did make requests to the Court for certain instructions relating to this particular statute, but not relating to the element of causation.

Would you defend that instruction if the instruction had said and now I want to define causation for you.

Lillian Zeisel Cohen:

If that were the sole instruction on causation that would not be an adequate for instruction.

What provision of constitution would that offend?

Lillian Zeisel Cohen:

I do not think it would offend any.

Well that is what I asked you which is — is it an constitutional instruction?

Lillian Zeisel Cohen:

I do not say that what happened here or the hypothetical that you posed to me raises a question of constitutional law, that is where we ultimately take issue with what the Court did below, because in essence the court below…

What do you understand your opponents do or the court below do held that the constitutional infirmity was in the instruction?

Lillian Zeisel Cohen:

The court below seems to say that because there are some questions of whether or not the jury was aware of the element of causation, there was no finding beyond a reasonable doubt by the jury on the issue of causation.

I see.

Lillian Zeisel Cohen:

However, the court below does not state that across the Board, they certainly do not cite any authority to support what is essentially a pro se argument.

What is in some constitutional rationale based on lack of fault or lack of intent or anything like that?

Lillian Zeisel Cohen:

I do not understand them to be reaching out to decide a broad constitutional principle on this case.

Warren E. Burger:

Is it possible that the defense carefully and studiously avoided the request for instruction on causation on the grounds that the less said about causation the better it would be for the defendant?

Lillian Zeisel Cohen:

This is the thrust of our Reply Brief, because although the law in New York, prior to the Kibbe decision in the Court of Appeals, was sparse.

John Paul Stevens:

Mrs. Cohen before you sit down would you tell me because I am little lost in the papers, where in the papers your understanding of the correct instruction appears?

Lillian Zeisel Cohen:

We addressed this in our Reply Brief.

John Paul Stevens:

In your Reply Brief, you actually set out an instruction you think it is correct?

Lillian Zeisel Cohen:

Which I believe they would have been entitled to, and which we believe would have precluded the defense in this case from using the emotional argument to the jury that it was Blake’s fault, and that he was the one who was responsible.

Warren E. Burger:

I think that your sample instruction on page 4 of your Reply Brief is taken verbatim from LaFave & Scott or have you adapted it?

Lillian Zeisel Cohen:

The discussion of LaFave & Scott on our part I think is gratuitous and was simply engaged in for purposes of showing that…

Warren E. Burger:

That is not my question.

Lillian Zeisel Cohen:

No, the hypothetical is verbatim from LaFave & Scott.

I used this as…

Lillian Zeisel Cohen:

As Hornbook Law they regard what happened in this case as wholly foreseeable.

Mrs. Cohen, I think that Mr. Justice Stewart asked you this, but I did not hear your answer.

Lillian Zeisel Cohen:

Yes, he was convicted.

Warren E. Burger:

Very well.

Sheila Ginsberg:

Mr. Chief Justice, and may it please the Court.

Warren E. Burger:

You mean it is not foreseeable that some automobiles would be traveling on that road?

Sheila Ginsberg:

Well, Your Honor, the requirements of foreseeability in this case are that the defendant be aware of the risk of death by the specific agency that actually inflicted the harm.

Warren E. Burger:

Well, if the defendant was driving a car there, why should it not be foreseeable that other people would be driving there, when the road is provided for that purpose?

Sheila Ginsberg:

Well, that is true Your Honor, but it was a narrow roadway.

Thurgood Marshall:

I am very interested in the awareness of a drunken man.

Sheila Ginsberg:

No, Your Honor I think that there is some dispute about that.

Thurgood Marshall:

Well, do you see several people walking around on a public road with no boots and pants on, is that normal?

Sheila Ginsberg:

Your Honor, I have to dispute the fact that Stafford did not have his pants on.

Thurgood Marshall:

Is there any contradiction that at least two bars interested in making money refused to serve him for the reason that he was drunk?

Sheila Ginsberg:

No, Your Honor, the record does establish that but the…

Thurgood Marshall:

Well, do you consider that a person in that condition is “aware”.

Sheila Ginsberg:

Well, Your Honor, I would say that it depends on the individual.

Thurgood Marshall:

But the record does not show that; it said, because he was drunk.

Sheila Ginsberg:

Well, but the record also shows Your Honor that the medical examiner…

Thurgood Marshall:

Are you disputing that he was drunk?

Sheila Ginsberg:

Excuse me Your Honor.

Thurgood Marshall:

Do you dispute that he was drunk?

Sheila Ginsberg:

Yes, Your Honor, I will.

(Inaudible).

Sheila Ginsberg:

Well, Your Honor beyond that…

When you do it, maybe he was drunk.

Sheila Ginsberg:

He was intoxicated, yes.

And the difference is?

Sheila Ginsberg:

That at his level of intoxication, he may well have been aware and the defense contended he was of this avenue of safety.

John Paul Stevens:

Ms. Ginsberg, may I interrupt for a moment.

Sheila Ginsberg:

Yes I do, Your Honor.

John Paul Stevens:

But why should that affect the normal rule that where there are disputes you presume the jury resolved the disputes in favor of the bailing side.

Sheila Ginsberg:

That is a situation in which the jury has been properly and adequately instructed on the elements of the crime.

John Paul Stevens:

Do you agree with your opponent’s version of what the proper instruction would have been?

Sheila Ginsberg:

Well, Your Honor, I agree certainly that foreseeability is one of the essential requirements in a causation instruction.

John Paul Stevens:

Then which is a stricter standard, foreseeability or recklessness?

Sheila Ginsberg:

Foreseeability is a much stricter standard.

John Paul Stevens:

Well, how specific does that have to be a particular truck or by a moving vehicle on the highway?

Sheila Ginsberg:

By a moving vehicle on the highway.

John Paul Stevens:

Was there any argument in the case that there was any risk of death other than by vehicle?

Sure, by freezing exposure to freezing.

Sheila Ginsberg:

Exactly, Your Honor, the prosecution contended that leaving him on the side of the road in the middle of the winter, exposed him to the risk of death by exposure.

Well, with all respect to you and to my colleagues we are not here trying the innocence or guilt of this person or trying to evaluate the merits of this lawsuit, but simply to determine whether the Court of Appeals is correct in holding that it was a constitutional violation for the trial judge not to specifically instruct on the meaning of the word ‘cause’ under the New York statute.

Sheila Ginsberg:

Exactly, Your Honor.

Certainly there can be no serious claim that the jury did not find every element of the crime beyond a reasonable doubt, because they were instructed correctly as to the burden of proof of the prosecution beyond a reasonable doubt, and they were given this statute in (Inaudible) which uses the word ‘cause’ and so there can be no serious question of what the jury found beyond a reasonable doubt that your client caused this person’s death.

Sheila Ginsberg:

Well, Your Honor, what I would say is that in this context on the difficult facts of this case, and the complex in intricate problems of causation presented by this case.

As a matter of New York Law, you are mistaking, aren’t you?

That is a matter of New York Law.

Sheila Ginsberg:

I have to take issue with that.

They affirmed the conviction, did not they?

Sheila Ginsberg:

They did affirm the conviction.

Warren E. Burger:

That is perhaps because they did not think it was a significant issue at all at that stage.

Sheila Ginsberg:

No, Your Honor, I do not believe that that was a…

So, you have either presented the issue to the State Courts and had it rejected or you have not exhausted your State remedy yet.

Sheila Ginsberg:

Oh, it was presented to the State Courts as petitioner conceived…

Well, and then it has been rejected by the State Courts, and that is enough to let you in the Federal Court, is that right?

Sheila Ginsberg:

Yes, exactly Your Honor, that is certainly so.

Warren E. Burger:

But what do you have to say about the question I put to your friend or the state that any additional, any clarification that was subject to causation was carefully avoided by the defense, because the less said about causation the better for the defense, is that a tactic of the defense?

Sheila Ginsberg:

Absolutely not, Your Honor.

Warren E. Burger:

Well, what is there in this record that will suggest or support your answer?

Sheila Ginsberg:

As a preliminary matter I would like to say that the Second Circuit specifically found that the failure to object in this case was an inadvertent failure that counsel having argued as he did prior to trial, and at the close of the States case that causation had not been established to you.

Warren E. Burger:

Then what explanations have you for the defense not requesting it?

Sheila Ginsberg:

Your Honor, I was not of course trial counsel and I cannot speak from personal firsthand knowledge, but I would say that it was just inadvertence.

Warren E. Burger:

Well, but having discussed the subject as much as it was discussed and having contemplated it enough to talk about it in extents so in the closing arguments, isn’t it remarkable to suggest that that is an inadvertent oversight?

Sheila Ginsberg:

Well, Your Honor, I do not think so.

Potter Stewart:

Well, the New York Courts have differed with you on that.

Sheila Ginsberg:

What I would have to say in answer to that, Your Honor, is that in fact in Kibbe itself when the court was addressing the question of sufficiency of the evidence on the question of causation, the Courts specifically held that it was critical to a finding of causation that the injury to Stafford be foreseeable.

John Paul Stevens:

Ms. Ginsberg, can I ask about that?

Sheila Ginsberg:

Your Honor, not in this proceeding, we do not.

John Paul Stevens:

Well, then would you not agree that we must accept at least this much of the jury verdict, as having to establish that the defendant had the requisite intent to commit the crime?

Sheila Ginsberg:

This particular statute under New York Law does not as the Second Circuit noted in a footnote, required intent.

John Paul Stevens:

But as recklessness, it requires an element of recklessness as tantamount to an intent.

Sheila Ginsberg:

Well, yes but as I pointed out recklessness does not lead to standards of…

John Paul Stevens:

Of the foreseeability?

Sheila Ginsberg:

Exactly.

John Paul Stevens:

I understand your point.

Sheila Ginsberg:

Your Honor, this is not as I understand is the charge that the state relies on, this is hypothetical taken from LaFave & Scott and it is inapposite to the fact of our case.

John Paul Stevens:

Well, then just so that I am trying to understand we do not really know as between you and your opponent what instruction would have been acceptable to both of you.

Sheila Ginsberg:

No it does not. The defense…

John Paul Stevens:

So, do we know in the papers anywhere what precise instruction you say was constitutional error for the judge to fail to give on his own?

Sheila Ginsberg:

Well, Your Honor, we did not draft a model instruction, but it was our position that the instruction had to include within it, explanations of superseding cause independent intervening cause in that regard…

John Paul Stevens:

And, if in giving that explanation the judge had made a comment somewhat comparable to the last clause, the one here, that in his judgment this could well be foreseeable within what I have described to you then that would not have helped you very much.

Sheila Ginsberg:

No, Your Honor, it does not.

John Paul Stevens:

Can you tell me what do you think the correct instruction would have been right now?

Sheila Ginsberg:

You may not find if I can phrase it in the negative that the defendants are guilty or have caused Stafford’s death.

John Paul Stevens:

Thank you.

Thurgood Marshall:

Do you have any case for that?

Sheila Ginsberg:

For what, Your Honor?

Thurgood Marshall:

For that charge.

Sheila Ginsberg:

Yes Your Honor, I think that People against Kane cited too by the petitioners.

Thurgood Marshall:

What was the charge in that case?

Sheila Ginsberg:

Well, I do not know that the Kane case sets forth a charge, but it makes clear that under New York Law intervening negligence.

Thurgood Marshall:

It seems though quite a few of us are interested in just what charge — I understand your complaint is that New York, under its law, should have given a “charge” and we have got everything but the quote and end quote.

Sheila Ginsberg:

Well, Your Honor, as I think I have said that charge must include directions as to foreseeability and superseding cause, and I think I do not believe that anything that the petitioners have said here this morning refutes that.

Warren E. Burger:

Does not this bring us around if not full circle or close to the staring point that this is why objections are called for in the trial of a case?

Sheila Ginsberg:

Well, Your Honor, I would intend or have to conceive that a request would have been helpful, but as the Second Circuit found the failure to request was inadvertent.

Thurgood Marshall:

How did the end of burdens run all the way up to the Appellate Division, did not we?

Sheila Ginsberg:

Well, Your Honor, again I cannot speak to that, but I would point out as it is been pointed out to me the Appellate Division did consider this charge on the merits.

Thurgood Marshall:

Well, if they had then I guess this point never would have gotten, Would it?

Sheila Ginsberg:

Well, Your Honor…

Thurgood Marshall:

I mean if we had left it to counsel for the petitioner, he never would have released it to the respondent to the respondent, he never would have raised it.

Sheila Ginsberg:

Well, I do not know that that is so.

Where do you locate in the constitution this requirement to give a foreseeability instruction?

Sheila Ginsberg:

That is correct.

Not because my brother Stewart said the jury did not find cause in finding a guilty, that he must have, he said really now you must find causation and the jury finds him guilty, so they found causation.

Sheila Ginsberg:

Well, as I know that Your Honor is aware that did not happen in this case.

I know but you would still be with us on the same ground, and I am sure you would.

Sheila Ginsberg:

The Second Circuit found and we assert here that the failure to explain causation precluded the jurors from finding that element beyond a reasonable doubt.

No, the judge said you must find causation, and they found causation.

Sheila Ginsberg:

Well, it is not a matter of might Your Honor, it is an absolute fact or a certainty, if you will, uninstructed it was…

It was instructed in my example on causation, and so was this jury on causation.

Sheila Ginsberg:

Well, Your Honor, but the instruction given or the example given by the prosecutor was…

Well, the jury were just left for you to find causation the way I guess they decided what causation meant, and where do they found it.

Sheila Ginsberg:

Well, Your Honor, it is our position that if the judge’s failure to identify causation is an issue or to specifically direct that the jury find causation, communicated to the jury the belief that causation was to be assumed.

The jury must have agreed with them, they at least found but-for cause.

Sheila Ginsberg:

But that is not the test, and that is tantamount to know finding of causation at all.

Well, I do not see where you get that.

Sheila Ginsberg:

It is tantamount on these facts to not finding causation at all because…

Well, I know you keep saying that, but I am not sure I will ever believe it, now also you said.

Sheila Ginsberg:

Uninstructed or if you will under the guidance of the prosecutor, the jury…

But do you see that — let us assume the judge had been instructed on but-for cause and said look jury, here is what I mean by cause, it means but-for, that is all and then explain what but-for was, would you be here?

Sheila Ginsberg:

Well, with the caveat that that is not what happened here, that the judge told the jurors that he alone would instruct on the law, and then failed to tell them anything about causation.

If they had not left him by the road he probably would not have been runover?

Sheila Ginsberg:

Well, Your Honor, but as you pointed out in the course of the petitioner’s argument under this misconception if respondents having left Stafford on the side of the road if he was subsequently hit by lightening or hit by a crashing plane that ironically crossed on the roadway Kibbe would be guilty of murder.

Alright, and would you say that would be unconstitutional?

Sheila Ginsberg:

On the charge that was given in this case I would say yes.

For what reason?

Sheila Ginsberg:

Because on this charge the jurors could not have found causation as that…

As the Constitution requires causation to be defined.

Sheila Ginsberg:

As the Constitution requires that each element of the crime be presented to the jury so that they may make that determination.

John Paul Stevens:

Ms. Ginsberg let me just follow up with one question.

Sheila Ginsberg:

Yes.

John Paul Stevens:

That is (Inaudible), and you do not think it is conceivable that that instruction would have been harmful to your client’s presentation of the case, because is not that rather clear that it was foreseeable that a truck would have been driving down this highway at this hour of the night?

Sheila Ginsberg:

The simple answer to your question is no.

John Paul Stevens:

Well, I put it somewhat differently.

Sheila Ginsberg:

No, Your Honor, because if the defense’ contentions are accepted, all that Stafford had to do when he was let out of the car was to quickly cross the road where the gas station was there to offer him shelter.

John Paul Stevens:

Well, but doesn’t that same point go to whether it was reckless in high degree of death?

Sheila Ginsberg:

Well, Your Honor as I said earlier recklessness in a much lesser standard.

John Paul Stevens:

Unless you are assuming that there had to be a truck coming on at the very moment while he was trying to run across the road, which I do not think that is the…

Sheila Ginsberg:

Recklessness is a much lesser standard because it requires only…

John Paul Stevens:

But would you not agree that if it was foreseeable, the thing they reasonably expected was that he would get up where they left him off, and walk across the road to the gas station.

Sheila Ginsberg:

Well, Your Honor, I would say recklessness goes to several of the fact situations or fact hypothesis in this case, and I would submit that the jury might well have found recklessness with regard to the weather conditions that even…

John Paul Stevens:

But what if it is cold, if he just has to walk across the street and get in the warm gas station?

Sheila Ginsberg:

Well, that may well be Your Honor, but that was a question of fact which the jury…

John Paul Stevens:

As you are saying that it is conceivable they could have resolved the factual issue of recklessness one way and the factual issue of foreseeability another way.

Sheila Ginsberg:

Exactly.

Thurgood Marshall:

Even though he was drunk?

Sheila Ginsberg:

Yes, Your Honor.

Thurgood Marshall:

Because the record shows that despite what you said the expert testified that is that to indicate a high degree of intoxication 25%.

Sheila Ginsberg:

Exactly, and it was a question of fact for the jury to determine.

Warren E. Burger:

Thank you Ms. Ginsberg.