Jenkins v. United States

PETITIONER:Jenkins
RESPONDENT:United States
LOCATION:Louisiana General Assembly

DOCKET NO.: 761
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 380 US 445 (1965)
ARGUED: Apr 01, 1965
DECIDED: Apr 05, 1965

Facts of the case

Question

Audio Transcription for Oral Argument – April 01, 1965 in Jenkins v. United States

Earl Warren:

Number 761, Melvin C. Jenkins, Petitioner, versus United States.

Mr. Sisk —

H. Thomas Sisk:

Yes.

Earl Warren:

You may proceed with your argument.

H. Thomas Sisk:

Mr. Chief Justice, may it please the Court.

This is a criminal case that’s here on certiorari from the United States Court of Appeals from the District of Columbia.

This case concerns one instruction if any a trial judge should give a jury after they announced that they’re unable to reach a verdict.

Petitioner’s main contention is that no supplemental instruction whatsoever should be given which encourages juries to agree after they have once retook — retired.

Petitioner basis this on the premise that each individual person in a criminal trial has a constitutional right to have a jury disagree and that a supplemental instruction or an instruction given in accordance with United States versus Allen infringes on this constitutional right as its very purpose is to facilitate agreement among jurist.

It applies right in the face of what petitioner contends is a constitutional right.

Well, your position as I take it that the (Inaudible) should be overruled.

H. Thomas Sisk:

That’s exactly it Your Honor.

You don’t try to distinguish this charge?

H. Thomas Sisk:

Well, there is two points on certiorari — on appeal here, Your Honor.

The first point is that Allen itself is unconstitutional and the discharge was made under the authority of the Allen case.

And the second point is that the charge that was given even though it was made under the authority of the Allen case varied so far from the Allen case and was so coercive that it should be considered reversed below.

(Inaudible) it was not necessary for (Inaudible)

H. Thomas Sisk:

Well, I think that it would be necessary to overrule the — well, let me rephrase that, Your Honor.

I think it would desirable to overrule Allen case.

(Inaudible)

H. Thomas Sisk:

That’s my personal opinion.

(Inaudible)

H. Thomas Sisk:

Yes, Your Honor.

Earl Warren:

Is it necessary for him representing a client (Inaudible) is this necessary for us to overrule the Allen case in order to (Inaudible)

H. Thomas Sisk:

No Your Honor.

Earl Warren:

— for him to (Inaudible)

H. Thomas Sisk:

No — to answer your question first, Your Honor, I don’t believe that it’s necessary to overrule Allen in order to protect my client and obtain a reversal.

But I —

Earl Warren:

(Inaudible)

H. Thomas Sisk:

Thank you.

H. Thomas Sisk:

The pertinent facts are that petitioner was charged with two offenses, one of robbery and one of assault with intent to commit robbery.

The jury found the petitioner guilty of robbing a local High’s Dairy store here in the District of Columbia of $38 and not guilty of the offense of assault with intent to commit robbery.

The petitioner was sentenced after that to one to three years in a reformatory and he is presently incarcerated at Lorton in Virginia.

Now, at the conclusion of the evidence when the jury had been deliberating for approximately two hours, the juries sent a note to the trial judge which I would like to read.

The jury cannot come to a decision on both counts because of insufficient evidence.

That’s what the note said and that’s found on page 48 of the record.

The trial judge then gave a supplemental instruction to the effect that the jury must decide the case.

He left no other alternative.

And the instruction that the judge told the jury and I’ll quote one portion of it.

The judge said to jury, “You have got to reach the decision in this case.”

Now the judge emphasized this point of making it necessary for the jury to reach the decision at least three or four times in an instruction that is not over a page long in the record.

The entire supplemental instruction is found on page 48 and 49 and all together, it’s not a page long in the record.

But you have to (Inaudible)

H. Thomas Sisk:

I believe this was at two o’clock in the afternoon.

Your Honor, I’m sorry, now that I recollect, it was around four o’clock because immediately after this instruction, the judge allowed the jury to retire and go home and instructed them to convene the next morning.

Potter Stewart:

You told us that the judge instructed the jury that they must reach a verdict for that (Inaudible)

H. Thomas Sisk:

Yes, Your Honor.

Potter Stewart:

And as I read the Government’s brief they entirely agree with you that the judge’s statement having — and I’m reading now have the coercive effect you attribute to it.

The judgment should be reversed and remanded for a new trial.

So really what would come down to agreeing those instructions in saying that they’re not — will be the view as the interpretation you’ve given, isn’t it?

H. Thomas Sisk:

Well —

Potter Stewart:

As far as the parties are concerned at least?

H. Thomas Sisk:

Essentially I think that’s it, Your Honor, but it becomes slightly more involved for this reason.

The Government argues that this charge was not made under the authority of the Allen case.

That’s their main contention, they go on and their brief to say that this was just a few remarks that was made by trial judge to a jury which happened to be deadlocked.

Potter Stewart:

Well, what’s so — what’s the magic about the Allen case about those who had to questions this case I gather is whether or not the instructions can be fairly read as telling the jury that they — as coercive instructions.

H. Thomas Sisk:

That’s correct, Your Honor.

Potter Stewart:

These words are not identical with the Allen word.

There’s nothing magic about the Allen case, the Allan charge.

This was a different charge and the question before us here is whether or not, these words were coercive.

Potter Stewart:

And if they were the Government agreed with you to the cause of that judgment ought to be reversed.

H. Thomas Sisk:

Well, Your Honor, I think I have to disagree with you and respectfully so.

The magic of the Allen charge is that there is no authority whatsoever with supplemental instructions by a trial judge to a jury that has disagreed other than made perhaps on the evidence.

There’s no authority for any such remarks except under the authority of the Allen case.

Now we stated this in our petition for certiorari and we stated this in our brief.

And the Government has not — point it to one single case nor at one authority whereby they can say — to say that there is some proper authority for a trial judge to make remarks to a jury after they retire.

It doesn’t concern the evidence.

They haven’t point it to one thing so the magic of the Allen case is that this charge necessarily had to be made under the authority of the Allen case.

Potter Stewart:

In those exact words — if you’re right about that then this judgment also should be reversed because clearly and concededly these are not the same words as the Allen charge.

H. Thomas Sisk:

That’s correct, Your Honor.

Earl Warren:

Mr. Sisk, well, (Inaudible) —

Potter Stewart:

Understand that to be —

Arthur J. Goldberg:

Is this (Inaudible)

Earl Warren:

Everything that a judge might say do he not that he might (Inaudible) common practice before you come in (Inaudible) not able to agree?

Now, the (Inaudible) of some kind, (Inaudible) the fact that he thinks it over some more, is that be — would that be wrong?

H. Thomas Sisk:

It wouldn’t be wrong Your Honor but if it was said — it would have to be said under the authority of the Allen.

If it were said in a —

Earl Warren:

But long before they ever heard of Allen, that that practice was refuted as a (Inaudible)

H. Thomas Sisk:

Alright well, let me answer, Your Honor this way.

If that same remark was said by a judge in the State of Arizona, then it would be reversed for error, because the State of Arizona in a decision, State v. Thomas which is as — was set forth in the brief has said that no supplemental instruction shall be allowed by a trial judge.

They knocked down an Allen type charge, a charge fashioned exactly after Allen and they said no such charges will be tolerated in the State again.

Earl Warren:

(Inaudible)

H. Thomas Sisk:

Well, since it was a judge made law, I suppose the Court of Arizona felt — I don’t suppose I know exactly why they knocked it down.

The State of Arizona knocked the Allen type charge down because they found that it did two things.

First of all, it violated an individual’s basic right to a fair trial and secondly, it was impossible to administer fairly.

Each Court of Appeals, each change in personnel in the Arizona Supreme Court put different interpretations on the Allen charge.

They didn’t know how far to allow the trial judges to stray from the exact words of the Allen charge.

They didn’t — they couldn’t agree as to when the Allen charge should be given and so forth and so on.

And for those reasons, the Supreme Court of Arizona completely did a way with the Allen charge.

Earl Warren:

Well, are you going to tell us exactly what happened in this case and why it is coercive and why it should be reversed because of this (Inaudible)

H. Thomas Sisk:

Yes, Your Honor.

That was the second point that I was going to get to, but I think I might as well take that right now.

The supplemental charge it was given, these are the salient portions of the charge and this was the trial judge speaking to the jury.

Now, I’m not going to accept this.

You’ve got to reach a decision in this case.

You’ve got to weigh the evidence and reach a conclusion.

This case has to be decided.

And then he went on and said to the jurist that they had all the evidence that anyone could have but the purpose of jurors was to decide cases and they wouldn’t be needed if there were no problems, that it was a simple case, that the jurors had decided much harder cases, that if it were open and shut, the courts would need juries, and if they were excused, some other jury would have to decide it on the same evidence which would not be very sensible.

First of all —

How much time have elapsed since (Inaudible)the jury going out in getting this charge?

H. Thomas Sisk:

Two hours, Your Honor.

Perhaps a couple of minutes but as to my recollection it was almost exactly two hours.

Now, the petitioner maintains that this wasn’t just a dis — a digression from the Allen case but it was almost exactly contrary to the Allen case in which — I’m sure the Court will remember, in which it was held that the jury had to be reminded that they should only reach a decision that they conscientiously do so in the charge before the Court of course, there was no such moderating reminder as they given whatsoever.

Secondly, it was coercive because it ridiculed the jury members and it implied that if they had good intelligence or good sense, they wouldn’t have any trouble getting together in the case — in the suit or —

(Inaudible)

H. Thomas Sisk:

No, Your Honor.

He didn’t suggest that at all.

As I said he ridiculed the jury by suggesting that if they had good sense they should be able to get together.

Now, I’d like to refer to Powell v. United States which is a Fifth Circuit case.

And there the jury was told that they shouldn’t stand out and — or they shouldn’t hold out in a spirit of pure stubbornness because they ought to reach a — ought to be able to reach a decision because they were as competent as any other jury.

And in the Fifth Circuit, that case was reversed because it said that no jury should be induced to agree to a verdict by fear that a failure to do so with reflect upon his intelligence and that’s the exact case here.

(Inaudible)

H. Thomas Sisk:

Now Your Honor mentioned — Mr. Justice White mentioned a moment ago that the judge didn’t make any mention as to which way they should decide this case.

But I don’t think it’s any question for what the Allen charge is a Government weapon.

I don’t think if any question and I think all prosecutors will agree to this that the Allen charge favors the Government.

The Government wins the vast percentage of cases that they try and it stands to reason that if this is brought out to its logical conclusion on (Inaudible) — majority of jury members are in favor of conviction and when a — when they are told that they should give weight to what the majority says, it — the petitioner’s way of thinking and to my way of thinking, it’s nothing more than suggesting that they should reach a verdict of guilty or at least the majority verdict instead of the unanimous verdict.

Byron R. White:

You don’t have any statistics on what happened in Allen charge cases do you?

H. Thomas Sisk:

Only from my own experience, Your Honor, from my six — being a prosecutor for approximately six years.

And I know that as the prosecutor when the Allen charge was given, I was very happy because it was more than one count.

I could figure on one — in one of them anyway.

H. Thomas Sisk:

I’d like to further say that the — that a number of cases have not even found the Allen charge necessary.

And I refer this and all of these cases that have — decided at this point or found in the brief, but I just like to run down the list of them.

First of all, there is —

William J. Brennan, Jr.:

Tell me Mr. Sisk, (Inaudible) dispositive or did you ever know the defendants asked for an Allen charge?

H. Thomas Sisk:

Never, Your Honor, never.

And in the few years that I have not been a prosecutor, I’ve never asked for that type of charge for the defendant.

(Inaudible)

H. Thomas Sisk:

I didn’t try this case, Your Honor.

(Inaudible)

H. Thomas Sisk:

There was no objection made to it, no objection at all.

Earl Warren:

The next morning this is a type (Inaudible) counsel?

H. Thomas Sisk:

Well, the next morning, the trial counsel —

Earl Warren:

Counteract, a counteract against instruction.

H. Thomas Sisk:

Yes, the trial counsel was a man who had been appointed to this case in legal aid and I think did an excellent job but he was limited and experienced.

And in the next day, he did as the instruct — the court upon instruction not against the Allen charge but an instruction on what reasonable doubt is because he felt that the (Inaudible) — the note that the jury had returned would call for an instruction or reasonable doubt.

That was denied and the instruction that was given was here.

But to go on, Your Honor asked for, is it necessary to reverse Allen in order to protect my client.

And I said no, because I said that I felt that the charge that was given was so coercive, it couldn’t be found in conformity with Allen.

But I also say this and this was why Allan was raised Your Honor, that this — Allen violated his constitutional rights.

He had a right to have a jury disagree, that’s his main point.

And any infringement on that right, no matter how slight in the way of an Allen charge was a violation of his constitutional right and it’s simply shouldn’t (Inaudible), and that’s why the Allan charge came into play here.

I would like to make one more point before sitting down.

There is a very interesting decision that’s not in my brief, that’s from the Fifth Circuit.

It’s entitled, Walker versus United States.

It was decided February 25th, 1965 and it’s appellate Number 21480.

Now in that decision —

(Inaudible)

A Fifth Circuit dissent?

H. Thomas Sisk:

The Fifth Circuit, Your Honor.

In that decision, the conviction was upheld even though a complaint was made that an Allen charge was given.

H. Thomas Sisk:

And just to show you how far an Allen charge can diverge, this is what they considered to be an Allen charge in the Fifth Circuit.

I do want to state to the members of the jury that is — that it is important that a jury reached a verdict if possible.

The jury room is no place for pride of opinion.

It is a place for an exchange of views.

That’s all that was said and objection was made to that.

And on appeal, the conviction was sustained.

But there was a dissenting opinion by Judge Brown of the Fifth Circuit, who have relied on quietly heavily in the brief and he points out that it was a judge made rule and I would like to quote from him if — ought to be the judges who put an end to it in a quick and not too decent (Inaudible).

Then he goes on to point out that — a committee report was given at the 50th annual meeting of the American Judicature Society which was held August 14, 1963.

The committee chairman at the conclusion of the report stated this, “Nor do we circulate the Allen charge to the new judges as I use to do when heading up the criminal division in the Department of Justice.

Allen is dead and we do not believe in dead law.”

Thank You.

Earl Warren:

Mr. Heymann.

Philip B. Heymann:

Mr. Chief Justice, may it please the Court.

I’d like to begin by saying that, of course, our contention is that this case has nothing to do with the Allen charge.

If it has to be sustained then to the Allen charge, we should lose but all you have to — is look at the two pages, they’re totally different.

But I also think the Chief Justice’s question led in the right direction.

Of course, the charge doesn’t have to be sustained under the Allen case.

Judges make the law as to what it said when a jury returns and the question is, what’s proper law?

What was said here was not the Allen charge.

Arizona didn’t deny — even Arizona didn’t deny all supplemental instructions.

I think Mr. Sisk was wrong about that.

They — Arizona did say that the (Inaudible) — that the Allen charge, well, in its view technically correct was more trouble than was worth and said that their lower court should no longer use it.

Finally, I’d like to begin by saying that Justice Stewart did characterize our position correctly as saying that coercion is of course bad.

And the issue in this case is whether there is coercion.

That’s an issue that has to be resolved.

Nevertheless, it does seem Mr. Sisk does return to the Allen charge and he returns to what the proper standards here are.

And I would like it introduce my argument by talking for a moment about the standards which seemed to us to be rather clear.

We of course agree that a jury has no duty to decide a case if that means that it has to reach a verdict even though there remains conscientious difference of view after all avenues of rational persuasion have been exhausted.

They don’t have to flip a coin, they don’t have to fight, they don’t have to compromise, and they don’t have to vote with the majority.

On the other hand, the jury does have a duty to exhaust all avenues, all reasonable avenues of rational persuasions and explore the areas of their differences.

Philip B. Heymann:

It’s the way the jury systems always been, it’s the common law system.

They don’t vote individually.

They’re putting the room together and expected to discuss the case.

In line of this, it’s fairly easy to say with generality where the judge should or should not say when a jury returns after a period of time which he believes is inadequate for them to have explored the issues and see what their areas of disagreement are, he should say to them that he wants him to go back longer, discuss further, remain open minded, don’t be stubborn, try to persuade the subject that need persuasion through persuasion.

Don’t give up your conscientious views.

That’s what the jury system is about.

Now all the Allen cases that have been cited in the brief involved four possible errors that can emerge out of the charge.

Three things a judge shouldn’t say as Justice White indicated, he shouldn’t indicate what view of the — what verdict he thinks would be proper in the case.

Incidentally in this case there is no — there’s no basis for I believe that Judge Holtzoff indicated that.

The judge shouldn’t say —

Earl Warren:

You — what did you say?

Philip B. Heymann:

Incidentally in this case Judge Holtzoff did not indicate that I don’t believe what you — he thought, what verdict he thought would be proper.

The judge should certainly not tell the jury what he thinks would be proper in a way of a verdict.

Earl Warren:

I wonder — I wonder if I had Mr. Heymann, I wish you would address yourself to it.

Now, in the charge of the jury, the Court started out by saying, “Ladies and gentlemen in the jury, what we have here is a very simple case that will not detain new law and it — in which you should have no difficulty in reaching a prompt decision one way or the other.

However, they should do in addition to that.

He reviewed the (Inaudible) and told how these witnesses and each one of the robberies had identified this man and there was just this simple denial that he committed the robbery on the other side.

And then he also summarized the evidence to — by saying that a few minutes later after this happened after the robbery, Officer DeMorrow (ph) of the police department testified that he and his partner and a couple of uniformed men responded to an alarm over the radio and they planted themselves in a particular point in these across the street and observed the defendant breathing heavily, acting nervously and running and arrested him.

They took him to the store.

At first he refused to get out of the car.

They ordered him to do it.

They took him into the store and the officer testified that Mrs. Corrin and Jewel Davis (ph) identified the defendant as a man who just entered the store.

Now in view of that array of witnesses against the defendant, its simple denial of the fact that he were the man — let’s start the case — the instructions offered with little indications that he is guilty when it says what we have here is a very simple case.

That should not detain new law and it — which you should have no difficulty in reaching a conversation one way or the other.

Philip B. Heymann:

Mr. —

Earl Warren:

It just seems to me that that is weighing awfully heavily even before you get to the —

Philip B. Heymann:

Supplemental charge —

Earl Warren:

— to the — later instruction where he said you must arrive with a verdict in this case.

Philip B. Heymann:

Mr. Chief Justice, I assumed or have no way of knowing that Judge Holtzoff meant when he said this is a simple case that it has very few witnesses.

There are about three witnesses on each count.

Philip B. Heymann:

The entire original trip —

Earl Warren:

They’re all at one side except the defendant and (Voice Overlap) —

Philip B. Heymann:

The defendant called one of their witnesses just simply to show that he couldn’t identify the defendant.

He called Philip Corn, the whole case reading the original transcript downstairs only takes about 45 minutes.

That’s some indication.

I do think as you read over Judge Holtzoff’s description of the evidence that the — that you get the impression that the defendant is guilty but that may be the way the evidence came in too Mr. Chief Justice.

It may not be an unfair summary by Judge Holtzoff of what came in, it may be that the evidence was fairly — was strong in this case that the defendant was guilty.

Earl Warren:

Well, I think it was very, very strong and I don’t say that Judge Holtzoff misstated it in any way, saying what he want.

When I say when as — as a full misstatement of it, its only the plain denial of the defendant and he then says “Ladies and gentlemen of the grand jury, what we have here is a very simple case that should not detain new law.”

Which you would seem have no difficulty of reaching a verdict, it seems to me that he thrown his (Inaudible)

Philip B. Heymann:

Alright, you’re saying that in a very — that in the case it’s very strong for the Government, the judge perhaps should not say that it’s a simple case and perhaps that’s right.

I — we’ve concentrated the only attack in this Court, the only attack in this Court has been on the supplemental instruction and we’ve concentrated our attention on that.

Arthur J. Goldberg:

Mr. Heymann, (Inaudible).

Philip B. Heymann:

Yes, Mr. Justice Goldberg

Arthur J. Goldberg:

— the Chief Justice said, do you see a difference when a jury comes in and says, “Your Honor, we cannot agree on the evidence which is the passive quote.”

But here the jury didn’t say that.

The jury said, “The jury cannot come to the decision on both counts because of insufficient evidence.”

(Inaudible) isn’t that tell you to a verdict of acquittal?

Philip B. Heymann:

Well, until you said the last sentence, Justice Goldberg, I was going to be — I was going to say I couldn’t be more delighted that you asked that question.

How —

Arthur J. Goldberg:

What about the last sentence?

Philip B. Heymann:

Well, let me work up to it and enjoy the first steps.

A judge has certain obligations when the jury comes in and says the jury is divided.

A jury can come in, of course, and say something else.

It can say we were sitting around the conference table in the jury room.

We were talking and we all agreed that we shouldn’t or can’t.

Now, it could say either one of those two things beside this case because it’s just a lousy record.

Not enough evidence have been put in.

There’s no way to run a (Inaudible).

The jury says that what the judge should say to them is you have to decide this case, individually not as a jury, and I should have added that.

Philip B. Heymann:

Individually each one of you has to vote in this case.

There’s no such thing as being unwilling to vote.

Now —

Arthur J. Goldberg:

But that isn’t what they said.

Philip B. Heymann:

They did say — they said the jury cannot decide the case on either count because of insufficient evidence.

Arthur J. Goldberg:

Well, what is the meaning of that?

They haven’t said we’re divided.

They came in and they said to the Court, “We can’t agree to the decision in this case.”

They didn’t say we’re differing about this, this just because of insufficient evidence.

Philip B. Heymann:

Alright.

Yes, Your Honor, I agree.

William J. Brennan, Jr.:

Did they say on either counts (Inaudible)

Philip B. Heymann:

They said on both counts —

William J. Brennan, Jr.:

The jury cannot come to the decision on both counts because of insufficient evidence, that’s fairly ambiguous don’t you think?

Philip B. Heymann:

Oh, it should be — couldn’t be more ambiguous.

There was an issue in the Court of Appeals as to whether they met either of both but that couldn’t be more ambiguous.

But returning to insufficient evidence, I read Judge Holtzoff’s charge and I will get back to whether he shouldn’t have recharged on the burden of proof.

I read Judge Holtzoff’s charge on 48 and 49 as taken — taking the question as Justice Goldberg took it as directed to insufficient evidence.

He says, “Well you have all the evidence there is, all the evidence that anybody can have”.

In other words the jury has no business asking for more evidence and they don’t have any business asking for more evidence.

That’s what we have jurors for to decide on the evidence.

If there weren’t any problems, we wouldn’t have a jury.

Now I’m not going to accept this.

You got to reach a decision in this case.

Of course, every case involves a problem.

He goes on and on.

He tells them to go home and sleep on it.

Arthur J. Goldberg:

We think proper instructions of the — by the judge if there had to be a supplemental instruction, Mr. Heymann to be that under the instructions I have given you and the Government must prove their case beyond unreasonable doubt, if the evidence is insufficient, your — turn me a verdict of not guilty.

William J. Brennan, Jr.:

Your Honor, I certainly wish he would have given that instruction.

The instruction was requested as we’ve pulled out of the Court of Appeals District Court files.

William J. Brennan, Jr.:

I don’t think that its error to have refused to give one — to refuse to repeat one small part of what took the greater part of a page to give in its full form.

In other words, judges don’t like giving — judges don’t like repeating a small part of an instruction which requires considerable explanation.

The full instruction on burden of proof was given the first time at page 44.

That’s only two hours before Justice Goldberg or — well, two hours before the jury returns.

You see it takes three quarters of the page from the very top of the page down to the paragraph for getting you or the sole judges.

And he did tell them didn’t he that they could find him guilty and one on the — not guilty on the other,(Inaudible)

Philip B. Heymann:

I think he — I’m — I seem to —

William J. Brennan, Jr.:

Because it seems to me, that’s the import of the petitioner expressed in their notes.

Almost (Inaudible) they said they found him guilty on one but they can’t find him guilty into the constitution.

Philip B. Heymann:

Well the —

William J. Brennan, Jr.:

(Inaudible)

Philip B. Heymann:

The top of page 43, Justice Brennan —

William J. Brennan, Jr.:

Which is it?

Philip B. Heymann:

The top of page 43 of the record, you will bring in a separate verdict on each of the 2 counts.

And in each instance, your verdict should be either guilty or not guilty.

He didn’t tell them that.

He refused, it is on page 40.

William J. Brennan, Jr.:

If he stopped and said that over again, we wouldn’t have this here.

Philip B. Heymann:

Well, perhaps not, perhaps not.

Now, I don’t know whether at this point to return to the aspect of the case that assumes that the jury would — that the judge had a divided jury or to Justice Goldberg.

I personally read this charge as if the jury came back and said, “We don’t want to decide this case.

We don’t want to vote for acquittal and we don’t want to vote for conviction because there’s insufficient evidence.”

And the judge said to them, “You have to decide it.”

That’s the way I read those words.

Now, I wish you would have given — I wish he would’ve repeated the instruction.

I think the trial judge has the discretion to refuse to repeat one-fifth or one-seventh of the — of a complete instruction.

Arthur J. Goldberg:

If there’s doubt about what do we — the reaction with the jury was, how should that doubt be resolved?

Philip B. Heymann:

If I would — what the reaction of jury was on this particular —

Arthur J. Goldberg:

I mean, what you were saying, if the judge was not clear in what are you saying to the jury, from a criminal trial in response to a question like this.

How should the doubt be resolved up here?

Philip B. Heymann:

Well, Your Honor, if the question is whether the charge was coercive in the sense that telling the jury they should compromise, flip coins, vote with the majority.

I feel very convinced that it should be resolved and if there’s — and if it’s doubtful whether it was coercive and let me point out that in this case, the jury came back the following morning deliberated for four hours, the long time for a 45-minute record.

They asked for testimony.

There’s doubt after that.

I think it should be resolved under Rule 30 and Rule 52 or 54.

Every purpose of the requirement of an objection to instruction and a requirement of plain error is here in this phase.

We can’t tell what tone Judge Holtzoff used or what the atmosphere in the courtroom was.

Defendant’s counsel could have told.

Defendant’s counsel, for all we know, didn’t find anything coercive, didn’t object one purpose of Rule 30.

Another purpose is to allow the judge to correct the charge.

He could easily have corrected any suggestion that the jury was supposed to compromise.

He had to add only a sentence.

Of course, no one should give up a conscientious objection, the major purpose of Rule 30.

Finally, there’s a real possibility, a very real possibility of a tactical decision by defense counsel here.

The jury had come back and said the evidence is insufficient.

They didn’t like the state of the evidence.

We have no reason to think, although defendants don’t generally ask for Allen charges that this defendant wasn’t delighted to have a charge that would leave the jury to decide the case.

He had no reason to think that this wasn’t a calculated decision that he was delighted with.

All these reasons, every reason that could possibly come up in Rule 30 in the plain error rule whether it’s 52 or 54 is present here.

Now, the — its — they’re frequently present in supplemental instructions to juries and the courts have regularly relied on that and I think quite property.

Arthur J. Goldberg:

But the point(Inaudible)

Philip B. Heymann:

This was the legal aid counsel in the trial court and the separate counsel again in the Court of Appeals and then separate counsel here.

Arthur J. Goldberg:

(Inaudible)

Philip B. Heymann:

I take it legal aid counsel is appointed.

Byron R. White:

But how did he (Inaudible) this case in the — (Inaudible) on one count but on the (Inaudible)

Philip B. Heymann:

We’re hung on one count which — would you give me once more, Justice White, I was —

Byron R. White:

The — we do not find him guilty on (Inaudible)

Philip B. Heymann:

That’s what they say.

Byron R. White:

And that (Inaudible) decision on both of them, you can on one but not both.

Philip B. Heymann:

Well, let me —

Byron R. White:

And the — (Inaudible) go back and try to (Inaudible)

Philip B. Heymann:

Well, let me refine it a little, I’m not sure where it leads, Justice White.

When they go back, they ask for evidence on count one.

That’s the count on which they find him guilty.

So if they’re saying, “We can’t agree on both counts.

We’re hung on one count.”

They must have agreed that he was innocent at count two and be hung on count one.

That’s the count.

They go back and they think about for four hours, have the testimony read to them.

Is that — now —

Byron R. White:

Well, if they decided that (Inaudible) decided to count (Inaudible) that he’s innocent.

Philip B. Heymann:

They’ve decided if this construction — I personally in reading the record and reading the fairly — each count has a certain number if eyewitnesses, etcetera.

I would think that the best way of reading both was as to the grammatical error.

I don’t mean to be begging the question.

They say we can’t agree on both counts.

I would think that the more likely the thing they meant was that we can’t agree to decide this case.

There are 2 counts.

That’s right.

On both counts, we find themselves unable to deicide, they didn’t say 3.

William J. Brennan, Jr.:

What you mean — in other words that they defy to that?

Philip B. Heymann:

I don’t — I don’t mean that — I said agree Justice Brennan.

I don’t mean if they’re divided.

What they said was we cannot decide, we cannot reach a decision on both counts because of insufficient evidence.

I think Justice Goldberg is right in suggesting that they weren’t really saying they were divided.

They were saying they were dissatisfied with the state of the record.

Now that’s one question.

Another question is what do they mean on both counts?

I think they meant they were dissatisfied with the state of the record on both counts, not that there was one count on which they were satisfied with the state of the record and another one on which they were not.

William J. Brennan, Jr.:

And when they got — have the — how do you instruct (Inaudible)

Philip B. Heymann:

This is yes.

William J. Brennan, Jr.:

They had finally decided then that the jury on the first count and they put it among (Inaudible)

Philip B. Heymann:

They acquitted him on the fact —

William J. Brennan, Jr.:

If they haven’t actually taken any vote in instances of that kind?

Philip B. Heymann:

Or if they– if they — perhaps they had taken it — perhaps they had taken it both and gone back and agreed that this was still a hell of the way to run a railroad.

They just didn’t like it.

It’s hard — this is way often the realm of speculation as to what a jury was doing.

I don’t want to deny that.

Earl Warren:

Mr. Heymann, don’t you think (Inaudible) the jury said that they were unable to decide the case because of insufficiency of the evidence.

The judge says, “No, I’m not going to accept it.

You have got to reach a decision for this case.”

Don’t you think it would be unwise for us to let that stand (Inaudible)

Philip B. Heymann:

Well, Your Honor, you are faced with the fact that it — that after — first of all that he may have been responding in light of what Justice Goldberg said that they were saying, “Individually, we don’t want to vote in this case”.

And at that point it’s quite correct to say, “You’ve got to vote individually.”

He may have been responding on that basis.

Second of all, they did go out for four hours on a case.

It’s surprising that they weren’t resolved after the first two hours when they came in and asked the question and they went out for twice again that much, a total of six hours on a short case.

I have a hard time finding coercion.

I would be inclined to say it was harmless error.

If there were an objection, I find it very hard to say if there’s plain error with no objection.

Now, I have nothing further to say, Your Honor.

Earl Warren:

(Inaudible) to submit the case among the jury that they didn’t agree and they thought, didn’t we have to put (Inaudible) that they’re insisting that a — and the jury must reach a decision to say, “Well, we just — if you don’t know, you just have to submit to anybody else, to somebody else and that wouldn’t be sensible, wouldn’t it?”

Said the judge.

Philip B. Heymann:

Mr. Chief Justice, it depends on what the jury — what the question was the jury had in mind.

Judge Holtzoff —

Earl Warren:

Well, I know but we — (Inaudible)

Philip B. Heymann:

Yes sir.

Earl Warren:

— in the jury (Inaudible) on this language here.

Philip B. Heymann:

And that — and it could be taken the way you suggest and it could be taken innocently.

And in that context, I would not find plain error and reverse without an objection, Your Honor.

Defense coun — we have no indication that defense counsel who had every reason to object found it coercive or if he — if he wanted to object, he had every reason to object.

Earl Warren:

I wonder if (Inaudible) for him about the particular time to object what the judge had said.

Philip B. Heymann:

He —

Earl Warren:

When the judge says, “You have to reach the verdict and would have — it would’ve been wise (Inaudible) as a trial lawyer to stand up at that moment and object to it in front of the jury.

Philip B. Heymann:

Mr. Chief Justice, he had overnight.

The jury was dismissed at that point.

He had the following morning to come in and say, “I’d like a supplement —

Earl Warren:

(Inaudible) to have us remedied by asking the judge for an instruction to which the — to state that the — if the evidence is not sufficient, convince him beyond a reasonable doubt, that they should — he would’ve — which would’ve accomplished the purpose of a judgment unlike (Inaudible)

The judge says, “No, I’m not gong to do it.”

Philip B. Heymann:

Mr. Chief Justice, the instruction he requested would not have accomplished the purpose of unifying a divided jury.

Now the petitioner here is saying, there was jury divided, there was — there were six people or 11 who said, “Guilty beyond unreasonable doubt” and a certain number who said not.

Repeating the instruction on reasonable doubt would not have accomplished the purpose of eliminating whatever coercion there was in the trial courts charge to tell him — towards telling them that they had to come to a decision.

The only thing it did was tell him how to arrive at a decision if they were in doubt how to arrive.

It didn’t eliminate the coercion that would suggest that they should flip a coin or vote with the majority or give up conscientious beliefs.

Earl Warren:

Mr. Sisk.

H. Thomas Sisk:

Just a few words, Your Honor.

First I’d like to say that every jury panel on the District of Columbia that every panel of prospective jury members, I guess I should say are given detailed instructions before they ever walk into the courtroom as to what the duties of the juror are.

I don’t know whether the District of Columbia is unique in this respect but I do know that they’re all given detailed instruction as to what their duties are.

So I think — I find it rather difficult to believe that these jury members simply decided not to vote because they didn’t like the way the trial had been conducted.

I think they had something else on their mind and it seems that rather incredible to me that they would completely disregard all of the instructions that they’ve been previously given and just sat in there and decided, “Well, we don’t think we’re even going to vote on this case because they simply haven’t done a good enough job either the defense or the Government.”

But the main thing that concerns me is that the Government has assumed that a trial judge just has a right to make remarks to the jury after they re — after they retire.

I don’t know why they have assumed this but this is the whole picture of the argument that a trial judge does have a right to make this remarks just they point to no authority whatsoever, no authority.

We have been able to find no authority other than count — other than the Allen case and that’s why we continue to say that what was said in this case was set under the authority of the Allen case and if every individual does have a right to have a jury disagree and that’s what we contend in this case.

That every individual has that right then no matter how slight the intrusion is, no matter how careful the trial judge is when he intrudes upon that right upon making any suggestion whatsoever that they should agree.

Well, then he’s violated the constitutional right and it shouldn’t be allowed.

Also one other thing I think would help to put this case on a better light.

Mr. Heymann said that he saw no reason why the Government attorney didn’t object.

That there was nothing in the record to indicate why he didn’t stand up and be heard at the proper time.

And because of this, it might have been some tactical movement on his part.

There is a stipulation between the Government and the petitioner which would permit the Court to read the entire transcript and as Mr. Heymann says at the very short transcript.

And I would suggest that if the Court could look at the entire transcript, well they would have a better understanding as to why the Government, as to why the defense attorney didn’t do anymore than he did.

H. Thomas Sisk:

He was interrupted practically on every page of the transcript without cause.

Not once but usually twice on every page of the transcript.

I’d like to say that he was accused of — he was accused of offensing with the witnesses, all of these in open Court before the jury.

He was accused offensing with the witnesses failing to cooperate, not being interested in the truth, dealing with the witnesses not at arm’s length, being cagey, told to be frank, stop backing — told to be open and above board and stop acting like a poker player.

Stop holding his cards so close to his chest, stop considering the trial a game.

Stop trying to trap the witnesses and endeavor to be more interested in justice.

Now I think that that puts it in a proper light.

Perhaps that’s why he didn’t say anything more than what he did.

Thank you.

Hugo L. Black:

Could you tell me what page in the record that the —

H. Thomas Sisk:

Yes sir.

Yes Your Honor.

Hugo L. Black:

(Inaudible) in the following morning.

H. Thomas Sisk:

I’m sorry.

Hugo L. Black:

That motion when he say defense made the following morning, what page — I don’t find any printed record.

H. Thomas Sisk:

I don’t believe it is in the printed record, Your Honor.

Hugo L. Black:

(Inaudible) the cause of that, did you know?

H. Thomas Sisk:

I think — I’m guessing now, Your Honor, but I’m almost certain that’s on — well, I think it was approximately page 40 or 39 or something such as that.

Hugo L. Black:

Do you know the one I’m talking about?

H. Thomas Sisk:

Yes, Your Honor.

Hugo L. Black:

On the burden of proof.

H. Thomas Sisk:

Yes, Your Honor.

Hugo L. Black:

Thank you.

Earl Warren:

Mr. Sisk, this man is an indigent, I understand.

H. Thomas Sisk:

Yes.

Earl Warren:

And the Court has always appreciated the counsel representing the indigent defendants.

We appreciate your (Inaudible) in this particular case.

And Mr. Heymann, we appreciate your frankness and diligence in representing the Government in this (Inaudible)

H. Thomas Sisk:

Your Honor, may I take this time to publicly thank my law partner, Mr. Cramer, his —

Earl Warren:

Yes.

H. Thomas Sisk:

Without —

Earl Warren:

Alright.

H. Thomas Sisk:

— his help —

Earl Warren:

— please proceed.

H. Thomas Sisk:

— I wouldn’t be able to do this at all.

Earl Warren:

Appreciation to the both of you.

H. Thomas Sisk:

Thank you, Your Honor.

Earl Warren:

We’ll recess.