Kentucky v. Whorton

PETITIONER:Kentucky
RESPONDENT:Whorton
LOCATION:Harrah High School

DOCKET NO.: 78-749
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: Kentucky Supreme Court

CITATION: 441 US 786 (1979)
ARGUED: Apr 16, 1979
DECIDED: May 21, 1979

ADVOCATES:
Patrick B. Kimberlin III –
Terrence R. Fitzgerald

Facts of the case

Question

Audio Transcription for Oral Argument – April 16, 1979 in Kentucky v. Whorton

Warren E. Burger:

We’ll hear arguments next in Kentucky against Whorton.

Mr. Kimberlin, you may proceed whenever you are ready.

Patrick B. Kimberlin III:

Thank you, Your Honor.

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

I am Patrick Kimberlin, Assistant Attorney General for the Commonwealth of Kentucky and it is the Commonwealth of Kentucky which is the petitioner in the case at bar.

The facts of this case stated briefly are as follows.

On May the 16th 1976, in the evening hours in suburbs of Louisville, Kentucky the respondent, Harold Whorton entered a fast food restaurant armed with a pistol and a knife, and robbed that restaurant, the employees, and he took money from the cash register.

And while he was there, he took the knife and cut the telephone lines.

He then left the restaurant, fled the scene in a 1967 blue Oldsmobile.

Seven days later on the 23rd of May, he committed yet another robbery again in the evening hours, again in the suburbs of Louisville, again a fast food restaurant.

Again armed with a knife and a pistol and he robbed that restaurant taking money from the cash register and fled the scene.

Finally, again seven days later on June the 1st 1976 he robbed the last fast food again in the suburbs of Louisville, Kentucky in the evening hours.

Again he pulled the — this time he pulled the telephone from the wall, fired a shot into the ceiling and robbed a number of patrons of the restaurant as well as the employees, and again took money from the cash register.

However, during the course of this final robbery, one of the patrons managed to slip away and advised the police of what was happening.

Just as Harold Whorton was fleeing the scene, the police arrived and gave chase.

In a short while, they forced Whorton off the road.

The car he was in was a blue ‘67 Oldsmobile.

He got out off the car, flourished a weapon but dropped it at the command of the police.

The police seized him, the weapon and some money from the automobile and returned him immediately to the scene at that last robbery where 10 individuals who had been at that fast food restaurant positively identified him as the man who just victimized them.

Thereafter, in the Jefferson County grand jury returned three separate indictments one for each of these three robberies.

These indictments were joined for trial and the trial was held in the Jefferson Circuit Court in Jefferson County, Kentucky in September 1977.

During the course of that trial, the Commonwealth of Kentucky introduced an abundance of evidence establishing the guilt of Harold Whorton on the charges that were brought against him.

At the — the evidence presented by Whorton was only that of his sister and his wife.

Those two ladies testified that on the evening of one of the three robberies, he was with them, thus attempting to establish an alibi.

Harold Whorton did not take the stand to testify in his own defense.

The conclusion of all the evidence, Harold Whorton requested an instruction on presumption of innocence.

The trial court refused the requested instruction as per the law in the Commonwealth of Kentucky at that time.

The jury returned verdicts finding Harold Whorton guilty on 10 counts of first-degree robbery, two counts of attempt to commit first-degree robbery, and two counts of wanton endangerment.

Whorton, thereafter, pursued an appeal to the Kentucky Supreme Court.

While that appeal was spinning in the Kentucky Supreme Court, this Court rendered its decision on May 30, 1978 in the case of Taylor versus Kentucky.

Patrick B. Kimberlin III:

Seven days later, argument was heard in the Kentucky Supreme Court on the case at bar, Whorton versus Commonwealth.

The Taylor case was before the Kentucky Supreme Court at the time of the oral argument and they considered that course at great length in the body of their opinion which was rendered on — I believe on June 25th of 1978.

The opinion of the Kentucky Supreme Court resulted in the reversal of all 14 charges.

Two of the charges, the wanton endangerment charges were reversed upon double jeopardy grounds.

However, all the 10 first-degree robbery charges as well as the two attempted first-degree robbery charges were reversed upon the ground of the interpretation given by the Kentucky Supreme Court to this Court’s opinion in Taylor versus Kentucky.

The Kentucky Supreme Court interpreted Taylor versus Kentucky to mean that a newly declared constitutional requirement had been created by this Court in Taylor, and at that newly declared constitutional requirement was at the presumption of innocence when an instruction is requested on the presumption of innocence, it must be given.

If the request is rejected by the trial court, it’s a violation of due process of law and reversal must be had.

At the conclusion of the majority opinion in the Kentucky Supreme Court, it would appear that an open invitation was given for review if that interpretation that the Kentucky Supreme Court gave to Taylor meant anything other than what the Kentucky Supreme Court saw it to be.

As a consequence of this interpretation, we feel that there has been a serious hindrance of the criminal — Effective Administration of Criminal Justice in Kentucky because as of this time we now have 50 cases which will be automatically reversed as a consequence of the decision in Whorton, and the interpretation it gave to the Taylor case.

All these cases, many of them are already reversed or in stages of will be reversed.

The majority of them have been reversed.

In addition to this case which the petition for certiorari was granted here on January the 8th, we have four other cases pending right now on petition for certiorari that have already reached this Court.

Our argument is twofold.

The first is that it is our belief that the opinion of this Court in Taylor versus Kentucky means that the Taylor decision is limited to its own facts and is of narrow application and does not create a per se constitutional rule requiring automatic reversal on due process grounds under the Fourteenth Amendment if a presumption of innocence instruction was requested and then refused by the trial court.

We feel that the interpretation that should be given to the Taylor case is that constitutional error may occur on an ad hoc basis and the true constitutional principle involved in Taylor is not the giving or not giving in a mandatory sense of a presumption of innocence instruction.

But the principle that is constitutionally protected then in accusing a criminal can be tried only on the basis of probative evidence actually adduced at trial and beyond the reasonable doubt.

It is this principle which the Due Process Clause of the Fourteenth Amendment was invoked by this Court we believe in the Taylor case in order to ensure in effect a fair and reasonable trial in the Taylor case, and as we know of course what happened in the Taylor case was during the course of that trial, many numerous extraneous negative circumstances arouse, extraneous from the evidence that had nothing at all to do from the evidence.

Comments made by the prosecutor in his opening statement with respect to inferences to be drawn from an indictment which was read to the jury.

Comments made by the prosecutor in his summation with respect to equating the status of a defendant with that of guilt.

And then all the defendants who are brought to the bar are guilty.

These — there are numerous comments to this effect.

Given the circumstances of the Taylor case, the petitioner who was Taylor in that case, urged that under these particular circumstances in Taylor, the presumption of innocence instruction which was requested should’ve been given in order to protect the principle that a man is to be tried only upon the basis of the evidence adduced at trial.

And of course this Court noted in the Taylor case that the purpose of the presumption of innocence instruction is to protect the principle that a man is only to be — that a man is to be found guilty only on the basis of the proof adduced at trial in no extraneous matters.

As I think also if we go to the case of Estelle versus Williams where this Court noted in that case that a presumption of innocence serves the purpose of — its purpose is twofold.

One is to show that — remind the jury that the burden of persuasion is with the Government and it must carry its burden of persuasion beyond the reasonable doubt.

And secondly, that it has a purging effect to — it can forestall the consideration by the jury of extraneous matters.

It was the purging effect which this Court I believe felt that was so important in the Taylor case.

It was necessary to purge some of the — or all of the extraneous matters which arose during the course of that trial.

We submit that if there are no extraneous matters occurring during the course of the trial upon which the jury could improperly base or assume the guilt of the accused.

And if their verdict is based solely upon the overwhelming evidence of guilt, properly is presented at trial, the no constitutional error occurs.

Patrick B. Kimberlin III:

That given certain circumstances as in Taylor, given the degree of negative circumstances as in Taylor, an accumulative effect of those negative circumstances they can pyramid one on top of the other until there can be a violation of due process of law in the absence of an instruction on presumption of innocence.

However, we respectfully submit that in the absence of the negative circumstances, there is no constitutional mandate that the presumption of innocence instruction as a per se rule is required.

Thus, we submit that in this case there was no violation of any constitutional standard simply because we do not have in comparison of the facts of this case to those in the Taylor case the type of improper comments made by the prosecutor throughout the trial.

We do not have a situation where we have a mere swearing contest between two witnesses as in Taylor.

The victim there testified was the only person who testified.

The defendant testified was the only person who testified for the defense.

Here, we have 15 different witnesses who positively identified the accused as the man who victimized them on these three separate occasions.

We have the testimony of police officers who gave chase and apprehended him first from the scene.

Thurgood Marshall:

Mr. Attorney General, then the instruction on innocence wouldn’t have hurt the Government at all, would it?

Patrick B. Kimberlin III:

That’s correct.

It would not have hurt the Government at all Justice Marshall whether —

Thurgood Marshall:

So why not give it?

Why not to be given?

Patrick B. Kimberlin III:

Well in fact interesting enough Justice Marshall, the day after the oral argument was heard by the Kentucky Supreme Court in this case, that court amended Kentucky Rule Criminal Procedure 9.56 and now requires a presumption of innocence instruction.

There would be absolutely no harm I don’t feel it would have done to the Government’s case.

I agree with you there.

Byron R. White:

Is this an order by an order?

Patrick B. Kimberlin III:

This is by act of the court, Your Honor, Justice White.

Our court can amend its own rules — its criminal rules and it has done so in this case.

Byron R. White:

Do you have a copy of the order —

Patrick B. Kimberlin III:

Not the order but the amended rule is a part of the brief in our case and it is in one of the footnotes.

Thurgood Marshall:

I’m sorry, now what do we have before us?

Patrick B. Kimberlin III:

Well before this Court it’s —

Thurgood Marshall:

We can’t.

Patrick B. Kimberlin III:

Yes, Your Honor, before this Court is this —

Thurgood Marshall:

Can we reverse that order?

Patrick B. Kimberlin III:

Well that order —

Thurgood Marshall:

Can we touch that order?

Patrick B. Kimberlin III:

Justice Marshall that order became effective —

Thurgood Marshall:

Can we?

Patrick B. Kimberlin III:

No, but that order doesn’t affect this case.

Thurgood Marshall:

Well as of now, in Kentucky you have to give the instruction.

Patrick B. Kimberlin III:

Right, Your Honor.

The order —

Thurgood Marshall:

So what is this here?

Patrick B. Kimberlin III:

Because that order does not affect this case nor does it affect the other 49 or 50 cases which were reversed before that order ever went into effect.

There’s no retroactive effect to that order.

Byron R. White:

Do you have the copy of the Watson decision here?

Patrick B. Kimberlin III:

Your Honor it is made part of the reply brief filed by the Commonwealth of Kentucky in its status.

Byron R. White:

In info is it?

Patrick B. Kimberlin III:

Yes, Your Honor.

The entire —

Thurgood Marshall:

In Watson your court said, in Whorton, we elected as a matter of state law not to engage in application of the harmless error doctrine.

We chose simple prophylaxis over town —

Patrick B. Kimberlin III:

Yes, Your Honor I’m fully aware of what that opinion says.

Thurgood Marshall:

And that means what, and that means what?

Patrick B. Kimberlin III:

That brings us to the second aspect of this case.

The underpinning of the Kentucky Supreme Court’s decision in Whorton case is that this Court created a constitutional requirement under the Fourteenth Amendment in the Due Process Clause that a presumption of innocence instruction must be given as a per se matter regardless of facts and circumstances or anything else.

And if the instruction itself when requested is not given then it’s a violation of the Due Process Clause of the Fourteenth Amendment.

That is the underpinning of the Whorton decision and because of that decision.

These other 50 cases have been automatically reversed.

And if that is what this Court said in the Taylor case, if that’s what the proposition that Taylor stands for then we are wrong and we would candidly admit it if that is what that court — if that is what this Court meant in the Taylor case.

Thurgood Marshall:

But that rule is not before us.

We —

Patrick B. Kimberlin III:

But the rule —

Thurgood Marshall:

Can we?

Patrick B. Kimberlin III:

No, Your Honor but the rule has no significance to this case.

The rule didn’t go into effect until after this case was already decided.

Thurgood Marshall:

But that is the rule in Kentucky.

Patrick B. Kimberlin III:

It’s the rule now in —

Thurgood Marshall:

Regardless of what we say.

Patrick B. Kimberlin III:

— and it affects all — that’s true.

Thurgood Marshall:

Regardless of what we say in this case.

Patrick B. Kimberlin III:

That’s true but it affects this case and the other — all the cases that were in the pipeline prior to the rule going into effect.

The rule went into effect July 1.

William H. Rehnquist:

And it will affect whether this particular —

Patrick B. Kimberlin III:

It will.

William H. Rehnquist:

— respondent remains in jail or gets out —

Patrick B. Kimberlin III:

Oh certainly, because it’s like you need change in criminal rules in Kentucky or in any of the other states who are in federal government.

A change in criminal rule does not retroactively affect all other cases that —

Thurgood Marshall:

— before us.

Patrick B. Kimberlin III:

That’s true.

I certainly agree with you.

That really is not before us.

Thurgood Marshall:

Well how can we rule on it?

Patrick B. Kimberlin III:

I’m not asking you to rule on that rule on the changing rule because this hasn’t — the rule hadn’t went into effect.

Thurgood Marshall:

Well you brought it up.

You brought it up.

Patrick B. Kimberlin III:

I brought it up to advice the Court of what was happening in Kentucky.

And also I believe this.

The rule in Kentucky before the Taylor case came down was that there was absolutely no necessity for a presumption of innocence instruction at all if a reasonable doubt instruction was given.

Now I think in some cases there would be no violation of constitutional rules if you don’t have the extraneous negative circumstances like occurred in Taylor which in effect infected that man’s right to a fair and reasonable trial to be tried only on the basis of the evidence presented at trial.

William J. Brennan, Jr.:

Mr. Kimberlin may I ask?

Patrick B. Kimberlin III:

Yes, Justice Brennan.

William J. Brennan, Jr.:

I’m looking at page 9 of your reply brief that’s from the Watson opinion.

Do you have it there?

Patrick B. Kimberlin III:

Yes, Your Honor.

Yes, Your Honor

William J. Brennan, Jr.:

The paragraph at the bottom of the page.

Now does whatever principle of law is laid down in that paragraph, does that apply to this case?

Patrick B. Kimberlin III:

You mean the last paragraph in the argument?

William J. Brennan, Jr.:

Yes.

Patrick B. Kimberlin III:

Yes, Your Honor but that instance —

William J. Brennan, Jr.:

It does?

Patrick B. Kimberlin III:

Yes but that’s just —

William J. Brennan, Jr.:

Now tell me — just a moment.

Patrick B. Kimberlin III:

Yes, Your Honor.

William J. Brennan, Jr.:

Does apply to this case.

Now what does it mean in the second sentence “in the Whorton suit prior we elected as a matter of state law not to engage in the mental gymnastics inherent and the application of the harmless error doctrine.”

Patrick B. Kimberlin III:

I’m sorry I had the wrong page Your Honor.

What that means we feel is this.

As I’ve said earlier, our case was — we had a twofold approach.

The first being is an ad hoc basis and not a per se rule.

The second aspect of our case is if Taylor created a per se rule, if what you said in Taylor means that you have to give the instruction if you don’t its constitutional error.

Then what we submitted in our brief, which by the way was written prior to the decision of our court in the Watson case, was that if a per se rule is created then the harmless error, the court can turn to the harmless error rule under the Chapman-Harrington case is determined on a case to case basis.

Starting with the point —

William J. Brennan, Jr.:

No, but hasn’t your — taking your second proposition.

Patrick B. Kimberlin III:

Yes, Your Honor.

William J. Brennan, Jr.:

Doesn’t this paragraph from Watson indicate that your Supreme Court as a matter of Kentucky law has said “We’re not going to indulge in the application of the harmless error doctrine.”

Patrick B. Kimberlin III:

As to the application of the federal harmless error rule that’s true.

However Justice Brennan —

William J. Brennan, Jr.:

Are they federal — I see.

William H. Rehnquist:

But it has not said that it regards it as a per se violation of the federal constitution to fail to give the instruction.

Patrick B. Kimberlin III:

Oh yes, I believe it has.

In the Whorton case it said quite clearly we think that we interpret Taylor to mean —

William H. Rehnquist:

But that’s what you’re appealing here.

Patrick B. Kimberlin III:

That’s right that if this is a per se rule, if this is a per se rule the only hope we have is to apply the federal harmless error rule and quite candidly the Watson case —

William J. Brennan, Jr.:

Now this looks does it not as if your Supreme Court has said “If you get to the point where there’s been a violation then it can’t be saved by application of the harmless error rule.”

Patrick B. Kimberlin III:

That’s —

William J. Brennan, Jr.:

The conviction can’t be saved —

Patrick B. Kimberlin III:

They had chosen —

William J. Brennan, Jr.:

— isn’t what it says?

Patrick B. Kimberlin III:

They have chosen in that case, I agree Justice Brennan that they have chosen not to apply the federal harmless error rule.

But before you ever get to the federal harmless error rule in the Chapman versus Harrington, you have to have a constitutional violation.

William J. Brennan, Jr.:

Well, I understand this —

Patrick B. Kimberlin III:

Now if it’s across the board.

William J. Brennan, Jr.:

— this is the first submission.

Patrick B. Kimberlin III:

That’s going back to that.

Then in other words, you look at the case — you look at the facts of the case in order to determine whether its negative circumstances pyramiding until you have a constitutional violation.

Warren E. Burger:

But the Kentucky court has simply announced a prospective ruling.

Patrick B. Kimberlin III:

That’s correct, Your Honor it’s like the rule, like it’s the amendment of the criminal —

Byron R. White:

Well don’t you — is it your basic submission that Whorton is not — that Taylor was not a per se rule.

Patrick B. Kimberlin III:

Exactly, exactly Justice White.

Byron R. White:

And, yes but don’t you think — aren’t you really arguing that Taylor only applies where you couldn’t define harmless error?

Patrick B. Kimberlin III:

Oh, no.

It might appear as somewhat an awkward situation where you have to — first you have to look at the facts to determine whether there is constitutional error if this is an ad hoc application of the —

Byron R. White:

But if there’s no prejudice there’s no error under your reading at Taylor.

Patrick B. Kimberlin III:

In assumes you could say that.

I see what you’re saying is —

Byron R. White:

Well in the sense that’s what you’re saying.

Patrick B. Kimberlin III:

Yes, well because what do you have to do was saying on ad hoc basis —

Byron R. White:

Well, what do you think Taylor means?

Patrick B. Kimberlin III:

We think that it is not necessary to give the presumption of innocence instruction where there are no extraneous matters.

Byron R. White:

And what does that mean?

Patrick B. Kimberlin III:

That in effect I guess just saying exactly what you just said Justice White.

Byron R. White:

Exactly, and do you think that’s any different from saying —

Patrick B. Kimberlin III:

A per se rule?

Byron R. White:

No, no.

Do you think that’s any different from saying that you must give the instruction where you couldn’t hold that it would be harmless error?

Patrick B. Kimberlin III:

Well what that is of course is assuming as a per se rule and then applying a harmless error.

William H. Rehnquist:

That wouldn’t be the first instance in the law in which there was a semantic doubt for instance in our Bruton case where we held that an implicated defendant could admit — could object to the admission of a co-defendant’s confession against him.

You are confronted in the lower courts now with arguments that either there was no Bruton violation, or if there was it was harmless error.

And sometimes those are rather hard to straighten out.

Patrick B. Kimberlin III:

That’s right, I understand that.

In the way I will try to establish it in my own manner, because I was getting quite confused and other attorneys in our office were saying “Well what’s the difference of approaching the facts from the beginning and then approaching the facts in the end on the two arguments?”

And the difference I think is this.

Is that if it is an ad hoc rule then you have to look at the facts to determine where this constitutional violation.

And I believe if you have to go —

Byron R. White:

Well why — harmless error?

Patrick B. Kimberlin III:

— and I believe — if you have to do that for the ad hoc rule to establish the constitutional violation, I don’t think the harmless error applies in an ad hoc rule case.

Byron R. White:

Once you decide that the Taylor rule applies, there couldn’t possibly be harmless error.

Patrick B. Kimberlin III:

That’s correct if it’s on an ad hoc basis because you have to look at the facts first to determine the constitutional violation.

I don’t think you could reasonably go and look back as the facts again to determine there’s not reversible error or harmless error.

Byron R. White:

Well I know, but if there’s some possibility of harm, there couldn’t be harmless error.

Patrick B. Kimberlin III:

Well, harmless error rules have only been applied where there — to my knowledge where there is a per se constitutional rule.

And a per se constitutional rule is ordinarily only triggered by a triggering fact or a triggering factor to like in Miranda.

If a man’s arrested he can’t be questioned unless you’d give him this — regardless of all the other facts and circumstances, that’s the per se rule.

Potter Stewart:

He can be questioned or you don’t want to question him, or you can — but unless you —

Patrick B. Kimberlin III:

And if you want to get the others in the trial, of course, of course Justice Stewart.

Potter Stewart:

— and unless you obey the Miranda rules you can have whatever he says at trial.

Patrick B. Kimberlin III:

That’s correct if you want to get that rule.

But after you have the per se rule then you can look to see if it’s harmless, because it doesn’t make any difference what facts went before in a per se rule because there’s only a triggering fact.

But on an ad hoc basis, I think you have to look at all the facts to determine where there’s actually been a constitutional violation.

In any event if this Court did create a per se rule, we believe that with respect to the second aspect of our case, the Watson decision, may very well have cut out from under us our argument as to the application of the federal harmless error rule, because there’s nothing in Chapman and we candidly concede this.

There’s nothing in Chapman or in Harrington which would preclude a state court from refusing to apply the harmless error rule of those two cases.

In effect that does nothing more than create a stricter and more narrow standard than that required by this Court, if there’s a per se rule established to begin with.

If there is not then you don’t need it to the issue of the harmless error rule.

Byron R. White:

I suppose you said that if your Kentucky court had said “Well, as we understand Taylor it’s not a per se rule, it’s on an ad hoc basis.

You do it from case to case.

You have to figure out whether there’s some —

Patrick B. Kimberlin III:

A constitutional error?

Byron R. White:

— any real need to give this instruction.

Well that’s just a lot of mental gymnastics.

We’re just not going to do that.

As a matter of state law, we’re going to say that if the Supreme Court of the United States wants to inject this kind of confusion in the state trials, we’re going to clear it all up by as a matter of state law making it a per se rule.

Patrick B. Kimberlin III:

Well, I think —

Byron R. White:

That would be a matter of state law then, wouldn’t it?

Patrick B. Kimberlin III:

As a matter of state law.

But you know, I think this Court — sometimes opinions are written in such an atmosphere sometimes and I think that the Taylor opinion affected the Kentucky Supreme Court in a certain way.

And I think you can see what way it affected by reading the Whorton opinion, and also I think you can almost see a type of reaction by the Kentucky Supreme Court in for the first time changing that particular Kentucky criminal rule to mean the exact opposite of what it ever meant in the past.

And not only that, this Court in Taylor criticized the skeletal instruction on reasonable doubt interestingly enough on the amended criminal rule in Kentucky.Now the term reasonable doubt can not even be defined.

I think that this was used to —

Thurgood Marshall:

Well, do you want us to overrule Taylor, do you?

Patrick B. Kimberlin III:

Oh no, I don’t want you — I think Taylor is a superb case for its facts in any other cases that come within the degree or purview of those type of facts that establish a constitutional violation.

But I can not believe, and I guess I’ll find out soon enough whether this Court in Taylor said, that you have to give that instruction as a matter of constitutional law under the Due Process Clause of the Fourteenth Amendment.

Potter Stewart:

When requested?

Patrick B. Kimberlin III:

When requested.

If there are no more questions from the bench, that will conclude the argument for the Commonwealth of Kentucky.

Warren E. Burger:

Very well, Mr. Kimberlin.

Patrick B. Kimberlin III:

Thank you.

Warren E. Burger:

Mr. Fitzgerald.

Is there any question about it that the Taylor case was emphasized that it was decided on the facts of that case, and that it disclaimed laying down a per se rule?

Terrence R. Fitzgerald:

Mr. Chief Justice, and members of the Court, it is very difficult for me to tell this Court what it meant by its language.

Warren E. Burger:

Well, I want to know what you know, what you think it meant.

Terrence R. Fitzgerald:

I will be glad to tell you what I think it means.

The common sense of the matter to me is that there are three branches to Taylor.

First of all, this Court recognized the vital function of the presumption of innocence as a tool for the jury and therefore imposed an affirmative duty on trial judges to give life to the presumption for the jury.

However, at the same time the Court exalted substance over form and wisely refrained from a legislating form instruction containing magic words.

To me the operative due process principle in Taylor is not that an instruction containing the magic words presumption of innocence must be conveyed to the jury in every case.

But rather in some manner, the trial judge must reliably convey to the jury the substance of the presumption.

Terrence R. Fitzgerald:

And on the particular facts before the Court in Taylor, this Court appears to me to have held that only an instruction would have conveyed the substance.

I submit that the Kentucky court in Whorton correctly discerned the principle which I have enunciated and said in effect as applied to Kentucky cases, this means that it will have to be given in every case because we pride ourselves on bare-bones instructions which keep the trial court from reliably importing the substance of the presumption to the jury in any other way.

William H. Rehnquist:

You’re talking about Whorton and not Watson?

Terrence R. Fitzgerald:

Yes.

William H. Rehnquist:

Take a look at page 22 of the petition for writ of certiorari, the penultimate paragraph of the court’s opinion in Whorton.

Do you think you can really reconcile what you just said with the court statement there that those of us in the majority would like to really hold this newly declared constitutional requirement in subject to the harmless error rule where we are afraid it might not stick?

Terrence R. Fitzgerald:

Now I think that’s the second branch of our case here today.

I merely said that I thought in Whorton the court correctly discerned a general constitutional principle as a matter of due process that the substance of the presumption of innocence should be conveyed to the jury.

Whether it’s subject to the harmless error rule is a second question.

I’m merely responding to General Kimberlin’s notion that it’s not even a general due process principle.

I think it is.

Whether it’s subject to exceptions is another matter.

And I think the Court said “We’re uncertain about exceptions and we’re afraid that if we make an exception it might not stick.”

The Court then went on in Watson to elaborate on that fear and to explain that part of that fear is not based on a notion that —

Byron R. White:

But in here Wharton it said in this paragraph I’m talking about, it says, “yet Taylor contains no hint that it might have been appropriate to consider whether the error was in fact prejudice —

Potter Stewart:

And then at the end it says “If we’re wrong, we shall welcome further enlightenment from the only source that seems to be able to either construe or amend the Constitution.”

Which I presume is (Inaudible) for saying the Supreme Court, which would certainly imply that this is not a rule of state law, if the answer to the question lies here.

Terrence R. Fitzgerald:

I think that I’m not here to defend the language of the Supreme Court of Kentucky, but I think the result was correct.

If we look beyond the words to the substance of what they did, they first of all discerned it to be I think correctly a general due process requirement.

They discerned that it was unclear whether there might be exceptions and whether than play constitutional roulette, they did two things.

One, they reversed all pending cases.

Secondly, they adopted a state rule governing all future cases, and actually then thirdly, they elucidated in Watson that part of their reason for doing this was state law they didn’t want to engage in the mental gymnastics.

That is not entirely clear from the language of Whorton itself.

Potter Stewart:

No, it is not.

In fact the language of Whorton itself particularly in the sentence that I just read implies quite the contrary that the answer to whether or not there’s a harmless error rule lies with the Supreme Court of the United States.

That’s certainly is wholly inconsistent with saying that it’s a matter of state law.

Terrence R. Fitzgerald:

It would appear so —

Potter Stewart:

Isn’t it?

Terrence R. Fitzgerald:

— if the Whorton case were taken —

Potter Stewart:

On its own.

Terrence R. Fitzgerald:

— on its own.

But when you couple with that the adoption of a rule of state law which they noted in the footnote they were doing simultaneously, I suggest that their motivations although not clearly enunciated may have been both.

William H. Rehnquist:

But your client is Whorton not Watson, right?

Terrence R. Fitzgerald:

That is correct.

But I would submit that even if Whorton had solely as a matter of federal constitutional law, we hold that we can not apply the harmless error standard.

If the Court has subsequently said and it is a matter of state law that we choose —

Potter Stewart:

Not to.

Terrence R. Fitzgerald:

— not to do so that this Court should not involve itself in the state process.

Byron R. White:

Well I don’t think we can, can we?

Potter Stewart:

We can’t.

Terrence R. Fitzgerald:

That’s what I’m saying.

Potter Stewart:

Exactly.

William H. Rehnquist:

Well then that would still leave the question of whether Taylor is a per se rule or not, would it not as a matter of federal constitutional law?

Terrence R. Fitzgerald:

Yes, I think so.

However, if you read the reluctance as I think Justice White pointed out so graphically during General Kimberlin’s remarks.

If you will read their reluctance to engage in the mental gymnastics of applying the harmless error rule after the fact, I think we can see they would have the same reluctance to apply them before the fact to an exceptional cases doctrine.

Warren E. Burger:

Well did not, I repeat the question.

Did not the dispositive paragraph, second from the last sentence in Taylor, make it clear that it’s a case by case decision not a per se rule?

Terrence R. Fitzgerald:

My own reading of Taylor, again, I profess a little if any clairvoyance when it comes to the minds of the members of this Court is that —

Warren E. Burger:

Well, I’m not asking about the minds of the Court.

Terrence R. Fitzgerald:

What I’m saying —

Warren E. Burger:

I’m referring to you, when you read those words on the facts of this case?

Terrence R. Fitzgerald:

Yes.

When you read those words as I said earlier with the earlier statements in the opinion that the judge has a duty to ensure that the jury understands the substance of it then it may be a case by case question of whether these exact words need to be conveyed.

But the due process requirement is that in some manner the jury must be informed of the operative principles by which it must decide a case.

The presumption of innocence is so vital that the jury can not be trusted to reliably apply the correct standards to weighing evidence unless it is informed.

Now whether these particular words or some other words may satisfy that I think the opinion says might be left to a case by case determination.

Or might be left open for future consideration of whether there is a harmless error standard.

Thurgood Marshall:

Well what is before us?

I’m speaking of this rule the Supreme Court has adopted.

Thurgood Marshall:

Doesn’t it take this case away from us?

Terrence R. Fitzgerald:

General Kimberlin has contended that because it does not apply to the cases pending at the time it was adopted that those cases are still before you.

And I suppose to some extent, he is correct.

But I think the importance of that rule is that it shows the state’s reluctance not only as a matter of federal constitutional holding, but as a matter of state law to get involved in this kind of case by case analysis.

It shows a preference for prophylaxis and that preference is indicated I think as a certain thing —

Thurgood Marshall:

But, wouldn’t that take this case from us?

That says that this is the Kentucky law.

That’s what the rule says.

Not this case.

The rule is the law.

Terrence R. Fitzgerald:

Yes, sir.

And I think the opinion in Watson —

William H. Rehnquist:

The rule is perspective only, is it not?

Terrence R. Fitzgerald:

Yes.

Potter Stewart:

How about retrials?

There are some 40 or 50 cases we were told by the General that the Supreme Court of Kentucky there has or predictably will reverse convictions that will be reversed by that court for a new trial.

Now will the rule be applicable to the new trials by its terms?

Terrence R. Fitzgerald:

Yes, it will.

Potter Stewart:

So it will be applicable to these cases if they’re tried again.

Terrence R. Fitzgerald:

That is correct, absolutely.

Everyone of these will get the form instruction under RCR 9.56 from the —

Byron R. White:

Including this one?

Terrence R. Fitzgerald:

Including this one.

Byron R. White:

If it were retried.

Terrence R. Fitzgerald:

Yes.

The presumption of innocence is as I said earlier and I think this Court knows better than I from its language in Taylor and Estelle, more than originally thought, more than mere evidence on behalf of the accused.

If it were mere evidence the jury could disregard it.

It is rather a guiding operative principle by which the jury weighs the evidence, and as Justice Wilhoit of the Kentucky Court of Appeals noted in his dissent in Taylor before it ever got to this Court that presumption is probably contrary to the mindset of many of the jurors.

And they probably entertain a presumption of guilt by the time they go into that jury room after having heard the indictment read, or even as they entered the beginning of the trial.

Potter Stewart:

There’s somewhere in these papers in one of the separate opinions in the Kentucky Supreme Court reference to a study that indicates that 37% of the population thinks that the rule of law is that a person is guilty until he proves himself innocent?

Potter Stewart:

Isn’t that in here somewhere?

Didn’t I see it?

Terrence R. Fitzgerald:

I don’t recall that.

I believe there it — I’ve seen something to that effect —

Potter Stewart:

I can’t find it.

Terrence R. Fitzgerald:

— but I don’t recall where.

But I think that underscores the dramatic need for the presumption of innocence.

The operative principle has no life unless each and every juror understands it clearly and applies it correctly in the decision of a case.

And it seems to me that what this Court was saying in Taylor —

Potter Stewart:

It’s in Justice Clayton’s dissenting opinion on page 33 of the petition for certiorari, the footnote.

According to a comprehensive national survey conducted by the National Center for State Courts, the actual figure is 37% and that stands for — that figure is over a third of all Americans believe it is the responsibility of the accused to prove his or her innocence.

That’s what I was thought I’d remember it.

Terrence R. Fitzgerald:

Yes.

This would I think underscore what this Court recognized in Taylor and Williams that not only must the jury be made aware of the presumption, but they must be made aware reliably by the trial judge.

No amount of argument, no amount of persuasion can carry with it the weight which the state attaches to that presumption as an operative principle to guide them in weighing facts during the fact-finding process.

Byron R. White:

What should we do with this case if we say the Kentucky court was wrong with respect to Taylor that it wasn’t a per se rule?

It was an exceptional circumstances or ad hoc due process case.

Should we just diverse then or?

Terrence R. Fitzgerald:

I think you can dismiss for mootness in light of the language in Watson that they would not want to engage in that kind of mental gymnastics on the front end anymore than they would on the back end.

Byron R. White:

Well, I know we can —

Terrence R. Fitzgerald:

It’s the same process.

Byron R. White:

Yes but they could — they can say that again, but we’re talking about this case not Watson.

And it — why wouldn’t we just say reverse or at least vacate and say “Here’s what Whorton meant” or at least maybe we can’t say what it meant but we can tell you that Whorton didn’t mean what you said it meant.

Potter Stewart:

You mean Taylor.

Byron R. White:

I mean Taylor.

Taylor didn’t mean what you said it meant.

Anyway, and now you can do about what you want to or is it a matter of local law?

Terrence R. Fitzgerald:

If this Court feels that Taylor is strictly an exceptional circumstances cases that certainly is a remedy available to the —

Byron R. White:

Well, it’s available but is that what we — let’s just assume that that’s what we would hold with respect to Taylor.

What would you then argue we should do with the case?

Terrence R. Fitzgerald:

I think that the circumstance of the Kentucky court’s explanation of its unwillingness to get into a case by case approach and the adoption of the rule would still justify this Court in upholding the decision in Whorton as — and mooting this case.

I think it’s much more likely, much more stronger case to moot if we are talking about a general principle subject to harmless — possible harmless error exception.

But the circumstances of the Kentucky courts action summarily reversing all pending cases prospectively imposing a mandatory duty in all future cases, and then in Watson explaining what it has done as being as a reluctance as a matter of state law to get into case by case evaluation would indicate that the Kentucky court would do no differently on remand than it did before.

Byron R. White:

So I take it what you then would are quite sure in your own mind, at least you would argue that even if no matter what we said about Taylor, if we said this is not a per se case, the Kentucky court would still leave its mandatory instruction rule in?

Terrence R. Fitzgerald:

I believe that unless this Court over rules Taylor that the Kentucky court will continue to prefer the prophylaxis to case by case matters.

Byron R. White:

Would rather have a — would rather have a black or white situation —

Terrence R. Fitzgerald:

Yes.

Byron R. White:

— than a case by case argument about it.

Terrence R. Fitzgerald:

Yes, I’m confident about it.

William H. Rehnquist:

Of course if we reverse this case saying that Taylor had not met what the Supreme Court of — what the Kentucky Court of Appeals said it meant, the Kentucky Court of Appeals is perfectly free to say that on remand.

Terrence R. Fitzgerald:

Surely.

Surely they are.

Byron R. White:

And could say as a matter of state law, we just don’t want this uncertainty we’re going to leave our rule in.

Terrence R. Fitzgerald:

That’s true, it could do that.

Lewis F. Powell, Jr.:

Mr. Fitzgerald, are the judges of the Kentucky Supreme Court elected?

Terrence R. Fitzgerald:

Yes, they are.

Lewis F. Powell, Jr.:

When was the last election?

Terrence R. Fitzgerald:

I believe the elections are staggered.

Lewis F. Powell, Jr.:

Was there one in the fall of ’78?

Terrence R. Fitzgerald:

No.

Lewis F. Powell, Jr.:

There wasn’t?

John Paul Stevens:

Mr. Fitzgerald, the issue in Taylor really was whether or not there been a fair trial and the court emphasized a number of factors relevant to that issue.

First of all the thinness of the evidence, the prosecution was able to muster.

You had one on one nothing else.

But then the court emphasized the argument by the prosecutor, the closing argument which went quite far a field.

Talked at length about the indictment, also implied that every defendant was guilty.

And in addition to that the basic constructions were quite skeletal.

The court’s opinion examined all of those factors and concluded as the Chief Justice has stated that in those circumstances, the failure to give the instruction deprived the defendant of a fair trial.

Do you detect any suggestion of a per se rule in those circumstances?

Why would we have gone into those?

John Paul Stevens:

All we would have to say is that whenever there is a failure to give that instruction in clear language there has been a denial of due process?

Thurgood Marshall:

When requested.

Terrence R. Fitzgerald:

I take —

John Paul Stevens:

When requested.

Terrence R. Fitzgerald:

— Taylor to mean and perhaps wrongly from what you’re saying that the trial judge has a duty to ensure that the substance of the presumption is conveyed to the jury in some manner.

And the reason that these factors were going into and impress me was to see whether or not it had to be done in this particular manner with this particular instruction.

In Kentucky, the same skeletal instructions had been given from time immemorial and indeed the opinion in Whorton considers this Court’s criticism of those instructions as a complement.

Warren E. Burger:

Didn’t that language that Justice — Mr. Justice Powell just repeated to you indicate that there might be a different result when you have 15 eyewitnesses and no contrary, no contradiction on those eyewitnesses that was enough to shake the jury?

Terrence R. Fitzgerald:

Yes that —

Warren E. Burger:

Here you had only one alibi witness.

Terrence R. Fitzgerald:

I think —

Warren E. Burger:

His wife said he was home, 15 other people said he was in the store with a gun.

Terrence R. Fitzgerald:

I think it at least leaves open that possibility.

I read the decision myself, quite frankly as leaving for future determination whether or not there might be a different result.

To qualify, it is not uncommon in my experience for a court to qualify its result and leave open for future consideration on a better record with perhaps more experiential data from different states or jurisdictions which have experimented with the rule whether or not there are exceptions.

I could take that language to mean there are exceptions or I can take it as I did in fact that will lead open for a future date discussion of whether there are exceptions.

But in so far as we’re stressing the similarities between this case and the dissimilarities between this case and Taylor, let me point out that in this case, the same skeletal instructions were given.

They do not convey to the jury, the presumption of innocence.

They do not dispel the notion that Mr. Justice Stewart has pointed out that perhaps some 37% of them may have had that he is presumed guilty.

What difference does that make you may ask with so many witnesses?

I suggest that the complex nature of this case, and the fact that the jury is being asked to determine 15 or more charges rather than one or two makes it very difficult for the jury to sort out and to discriminate.

He might be guilty of 12 of them and not guilty of the other three.

And yet the inevitable tendency if the jury starts out with the presumption of guilt is to say “Well let’s see, was he there?”

“Yes he was there.”

“Let’s go ahead and find him guilty on all of them and impose the maximum penalty in all of them” which is exactly what they did.

Potter Stewart:

The instructions actually given are — appear on beginning on page 18 of the appendix, those were actually given?

Terrence R. Fitzgerald:

Yes.

Potter Stewart:

And where are the instructions on presumption of innocence and reasonable doubt that were actually given?

Terrence R. Fitzgerald:

The instructions tendered by the defense and not given —

Potter Stewart:

No, no I’m talking about the ones actually given in this case.

Terrence R. Fitzgerald:

Oh!

They begin on page 18.

Potter Stewart:

On page 18.

Terrence R. Fitzgerald:

And they go on counting the form verdicts all the way over to page 40.

Potter Stewart:

Or, 31 anyway.

Terrence R. Fitzgerald:

22 pages that the jury had to sift through.

Potter Stewart:

Well 31 are the actual instructions.

Terrence R. Fitzgerald:

All right.

Potter Stewart:

18 to 31, and where if you know and don’t waste your time if you don’t, in here are the instructions actually given as to presumption of innocence and reasonable doubt.

Terrence R. Fitzgerald:

None.

Potter Stewart:

Zero?

Terrence R. Fitzgerald:

Except the instruction, the standard Kentucky instruction that was given in Taylor which is —

Potter Stewart:

Well, you say none except, so what? That means there were some and where are they?

Terrence R. Fitzgerald:

Alright.

Page 30.

Potter Stewart:

Page 30?

William H. Rehnquist:

At the beginning in page 15 of the petitioner’s.

Terrence R. Fitzgerald:

Yes, in the middle of page 30 instruction number XVIII.

“If upon the whole case you have a reasonable doubt as to the defendant’s guilt, you shall find him not guilty.

The term reasonable doubt means a substantial doubt or reasonable doubt — I mean a real doubt.

And that you must ask yourself not whether a better case might have been proven but whether after hearing all the evidence, you actually doubt the defendant as guilty.”

This is the only instruction that Kentucky has permitted for years.

Potter Stewart:

And there’s nothing except beyond that at least as to presumption of innocence?

Terrence R. Fitzgerald:

Nothing whatsoever.

Potter Stewart:

Nothing.

Byron R. White:

Well, it’s like Taylor then?

Terrence R. Fitzgerald:

Exactly in that respect.

Potter Stewart:

Yes.

Terrence R. Fitzgerald:

Except that instead of a close — Excuse me.

William J. Brennan, Jr.:

How about during the voir dire, it wasn’t Taylor?

William J. Brennan, Jr.:

Was there any explanation of the jury then of the presumption?

Terrence R. Fitzgerald:

You mean by the court?

William J. Brennan, Jr.:

Either court or counsel.

Terrence R. Fitzgerald:

I do not recall whether there was any by counsel.

I’m confident that there was not by the court.

Potter Stewart:

How about in closing argument?

I guess there wasn’t here.

How about closing argument by counsel?

Terrence R. Fitzgerald:

I do not recall.

Byron R. White:

Do you argue before the judge’s instructions in Kentucky?

Terrence R. Fitzgerald:

Yes — no, excuse me, the judge reads the instructions to the jury, the attorneys then have to go from the instructions.

The instructions contain the whole of the case —

Byron R. White:

Are you free — would you be free to argue a presumption of innocence if the judge hadn’t instructed on it?

Terrence R. Fitzgerald:

Presumably so, yes.

Byron R. White:

Well why?

You just said you were bound by the instruction.

Terrence R. Fitzgerald:

Well what I’m saying is that’s not contrary to the instructions but neither does it carry the weight of the court behind it.

Potter Stewart:

Right.

Terrence R. Fitzgerald:

If I were to argue there’s a presumption of innocence, and I sit down —

Byron R. White:

So did you try this case or did somebody else?

Terrence R. Fitzgerald:

No, someone else from our office tried it.

Byron R. White:

You don’t know whether he did?

Terrence R. Fitzgerald:

I believe he did discuss it in the closing argument.

Byron R. White:

The presumption of innocence?

Terrence R. Fitzgerald:

Yes.

To what extent I don’t recall.

I did not consider that to be really the question before this Court.

Byron R. White:

Well, unless —

Warren E. Burger:

Under Taylor, isn’t it?

Byron R. White:

— unless Taylor is a totality case.

Terrence R. Fitzgerald:

Yes, Your Honor.

Byron R. White:

And if you — but you say that it’s the judge that must get it across to the jury.

Terrence R. Fitzgerald:

Yes, and not only that, the written instructions are carried in to the jury room so that long after the arguments of counsel have seized to ring in the jurors ears, all that remains is the truncated reasonable doubt instruction.

Byron R. White:

You hope they ring there at all.

Terrence R. Fitzgerald:

If they do, and 12 or 13 pages of instructions to sift through without one mention of the presumption of innocence.

Now, I pointed out in my brief that the defendant relied more heavily than most on the presumption on this case.

He wanted bifurcated trials on guilt and penalty, because in —

Potter Stewart:

That’s about all he had going for him, wasn’t it?

Terrence R. Fitzgerald:

That’s about all he had going for him exactly.

He relied very heavily upon it.

He had an alibi to one or two of the robberies that he wanted to put on, but to do that he would’ve had to testify in a joined trial as to all three robberies.

So he chose — he had an election to stand upon his Fifth Amendment right to remain silent, and to count on the presumption to carry him through on those two other robberies.

And yet, he got no benefit from the presumption because the jury was never told of it.

Instead they were given confusing lengthy instructions containing the same kind of skeletal reasonable doubt instruction, and they went back and found him guilty not of some other robberies, not discriminating from one to the other but of every single count and imposed the maximum penalty on every single one.

William H. Rehnquist:

Well the jurors also given 15 witnesses incriminating him, weren’t they?

Terrence R. Fitzgerald:

Yes.

Now, 10 of those witnesses applied to one robbery, the other — the other two robberies did not have that kind of that volume of evidence that in all —

William H. Rehnquist:

Were the sentences concurrent or?

Terrence R. Fitzgerald:

No, they were all consecutive.

William H. Rehnquist:

Consecutive.

Terrence R. Fitzgerald:

Totaling 230 years.

Potter Stewart:

And you say in Kentucky the judge’s instructions go in written form to the jury when it begins to deliberate?

Terrence R. Fitzgerald:

That’s correct.

They are read to the jury orally.

The lawyers may refer to them in their arguments and they’re taken back to the jury room.

Potter Stewart:

In writing?

Terrence R. Fitzgerald:

Yes.

Warren E. Burger:

What did it say about reasonable doubt again?

Terrence R. Fitzgerald:

The same as was in Taylor, it’s —

Potter Stewart:

Instruction number 18.

Terrence R. Fitzgerald:

— instruction number XVIII on page 30.

Potter Stewart:

If upon —

Terrence R. Fitzgerald:

“If upon the whole case, you have a reasonable doubt as to the defendant’s guilt, you shall find him not guilty.”

The term reasonable doubt is used in these instructions means the substantial doubt or real doubt, and that you must ask yourself not whether a better case might have been proven, but whether after hearing all the evidence you actually doubt that the defendant is guilty.

I submit this does not in any shape manner or form convey to the jury that presumption of innocence in its substance but rather the opposite —

Potter Stewart:

Isn’t there something else in these instructions about whose burden it is to present evidence — to make the — to present the proof?

I don’t think so.

Terrence R. Fitzgerald:

No.

Under Kentucky law —

Potter Stewart:

Except that each one of the instruction says they must find beyond a reasonable doubt.

Terrence R. Fitzgerald:

Yes.

There is no other kind of general instruction on burden of proof, reasonable doubt or any of these matters in Kentucky.

This is the bare-bones upon which the Kentucky court has prodded itself for years.

Byron R. White:

15 pages of skeletal instruction?

Terrence R. Fitzgerald:

15 pages of instructions on the substantive offense.

None, except for this one paragraph, on the function of the jury the process which it must use in weighing the evidence under these 15 instructions.

Potter Stewart:

Right.

Terrence R. Fitzgerald:

That’s the skeletal part.

In conclusion, it’s our position that this Court said in Taylor that due process of law requires the trial judge to take some kind of action to ensure that every criminal jury is guided by the presumption of innocence during the fact finding process.

If the Court didn’t says that in Taylor then we would urge that the Court should say it now, because the many states which have considered this proposition have increasingly in recent years tended in that direction.

The reason is that it’s an operative principle to guide the jury and it has no life whatsoever, unless the jury is reliably informed of it.

The only person in a position to reliably perform this duty is the trial judge.

Byron R. White:

When the jury comes in, in a Kentucky criminal trial does the judge give him a little talk first before the trial starts or not?

Terrence R. Fitzgerald:

At the present time, I don’t think this was true at the time Whorton was tried in Jefferson County, Kentucky.

There is a jury pool and there is a film presented by the bar association which conveys the sort of thing to the jury — to the jury panel.

I don’t believe that was in effect at the time that Whorton was tried.

Byron R. White:

And so the judge never said a word to him except “Good morning ladies and gentlemen”?

Terrence R. Fitzgerald:

As a matter of fact, practice was very sporadic.

We had a series of litigation against this particular judge for holding locked-door sessions with jurors at the beginning of their term when we couldn’t tell what he had said to them.

I don’t think that was true of this particular panel. But the practice was very, very sporadic particularly with this judge.

Terrence R. Fitzgerald:

I had no indication that he said anything to this particular panel one way or the other at the beginning of their term of service.

Byron R. White:

But every single instruction had the reasonable doubt reference in it.

Terrence R. Fitzgerald:

Has the reference yes.

Warren E. Burger:

Thank you, Mr. Fitzgerald.

Do you have anything further Mr. Kimberlin?

Patrick B. Kimberlin III:

Pardon me, Your Honor?

Warren E. Burger:

Do you have anything further?

Patrick B. Kimberlin III:

Could I just have one comment?

Warren E. Burger:

Oh yes, you have two minutes left.

Patrick B. Kimberlin III:

I believe the reason the rule was amended and the reason the Whorton opinion was written the way it was, was because of the way that Kentucky Supreme Court had it fixed in their minds as to what the Taylor case meant.

If they didn’t think the Taylor case meant a per se rule, Kentucky rule procedure in Kentucky would not have been changed, and this case here before the Court now wouldn’t have come out the way it did.

That’s the only comment I have.

Thank you very much.

Lewis F. Powell, Jr.:

That doesn’t really follow does it?

Even if it weren’t a none per se rule, would it not still be wise for the state court as a matter of state law to lay down a per se rule for the future administration of its own business?

Patrick B. Kimberlin III:

I think looking at it practically, what happened was a knee-jerk reaction on the part of the court back in Kentucky, Your Honor.

That’s why the rule changed and that’s why the opinion was written the way it was. And that’s the way I think perhaps the court should have —

Lewis F. Powell, Jr.:

Now, it seems to me the Kentucky Supreme Court indicated the very definite interest in running its own affairs to the extent it could, and there would be very likely to have played down a per se rule that it thought was wise whether it thought it was compelled to or not.

Patrick B. Kimberlin III:

Well I don’t come to that conclusion from reading the language in the Whorton opinion.

And it seems to me that they were a little bit bothered by, I don’t know if intervention is the correct word, but they were bothered by the Taylor opinion very much so.

And they took it to mean something that it didn’t mean, because perhaps I think they reacted too quickly to it.

This case here was argued seven days after the Whorton — the Taylor opinion came down.

The rule was amended the very next day and went into effect about 20 days later on July 1.

I think of course in all criminal cases obviously the criminal was in — pardon me that was the wrong expression.

The accused is entitled to justice.

The Commonwealth is entitled to justice and its citizens are entitled to justice.

And to reverse 50 cases or more, we don’t know what the final number will be yet, is a possibility here —

Warren E. Burger:

And by the time the case — by the time the case comes to the Supreme Court, your first terminology was correct is, he stands convicted when he comes with a conviction.

Patrick B. Kimberlin III:

Well all these cases come before the Court, Your Honor, now where their conviction is reversed.

If this Court reverses the Whorton case, unless there’s some other error on remand other than this per se business here, the conviction stands of — the conviction will then become affirmed.

Byron R. White:

Your prediction is that a plea reversed and said Taylor is a totality case depending on the circumstances and their ultimate issue being whether there’s a fair trial in the particular case, as my brother Powell says?

That the Kentucky court would probably revoke this rule?

Patrick B. Kimberlin III:

I don’t know that they would revoke this rule which is a prospective effect.

But as to these 50 or more cases in the pipeline right now, many, many of them I feel the convictions will be affirmed.

The Kentucky Court of Appeals which is a lower court below the Kentucky Supreme Court affirmed two criminal convictions after Taylor came down, but before the decision in Whorton came down, they distinguished the Taylor case.

They didn’t think it was a per se rule at all, and they distinguished it and affirmed the convictions.

And I think this is what will happen in many of the Court of Appeals cases and Kentucky Supreme Court cases that have now been automatically reversed due to what we feel is a basic misinterpretation.

Whether Kentucky Supreme Court wants to change the criminal rule that they amended and that is so hastily, I don’t know.

Thurgood Marshall:

But Mr. Attorney General, can we decide what they said as well as you can?

You’re trying to tell us what they said.

We can read that, can’t we?

Patrick B. Kimberlin III:

Yes, I can only give my ideas of what they said, Your Honor.

Thurgood Marshall:

Oh!

It’s okay.

Patrick B. Kimberlin III:

That’s all I have.

Thank you very much.

Warren E. Burger:

Thank you gentlemen.

Byron R. White:

Can I ask you one more question?

Patrick B. Kimberlin III:

Certainly, Justice White.

Byron R. White:

Do you have a list of the — I take it you have list of the cases that might be affected, the past convictions?

Patrick B. Kimberlin III:

Yes, we’ll get it, yes.

Byron R. White:

I don’t want the list, but what’s the oldest one?

Patrick B. Kimberlin III:

The oldest one?

The oldest one of course in progression in appeal would be this one.

The most recent one is a conviction for a murder case for the accused got the death penalty.

And it’s now pending before the Kentucky Supreme Court and will be, if things go as they are, will be automatically reversed.

There are 29 issues in that particular case.

The first one is a presumption of innocence, instruction was requested and denied.

William H. Rehnquist:

You’re talking about cases on direct appeal?

Patrick B. Kimberlin III:

I’m talking about cases, yes, they are going to retry to delay the cases in the sense that we ask all the procedural things like petitions for rehearing and this and that, because what has happened is we’ve been getting blocked up with all these cases trying to keep them alive until they get to this Court and hoping for a decision from this Court.

Patrick B. Kimberlin III:

If we lose, so be it on the —

Byron R. White:

Why are there a lot of other cases that might come up on collateral attack?

Patrick B. Kimberlin III:

We don’t know, because we don’t know the detail of when these have come up or not because it would depend upon whether the instruction was requested or not.

Byron R. White:

You’re only talking now about “X” number that are on direct appeal?

Patrick B. Kimberlin III:

Right, and from time to time the most recent case was about two weeks ago that came to our attention.

There may be others as they come in from the state on the process of going up in the appellate system.

When we originally pursued this litigation we guess — we made a guesstimate, 20 to 80 to get —

Byron R. White:

But there may be a lot of cases that will be subject to state and then federal collateral attack.

Patrick B. Kimberlin III:

It certainly could be, it certainly could be, although we don’t know the — any exact number of course.

Thank you very much.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.