Maness v. Wainwright – Oral Argument – March 23, 1977

Media for Maness v. Wainwright

Audio Transcription for Opinion Announcement – March 29, 1977 in Maness v. Wainwright
Audio Transcription for Oral Argument – March 22, 1977 in Maness v. Wainwright

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Warren E. Burger:

We will resume our arguments in Maness against Wainwright.

Mr. Brummer, I think you have 17 minutes remaining of your time.

Mr. Brummer.

Bennett H. Brummer:

The petitioner has based his constitutional claim on Sixth Amendment grounds as well as fundamental fairness.

On the basis that the Voucher Rule had been applied to sanctify the testimony of Linda Maness, although Linda was clearly adverse within the definition of adverse set forth in Chambers, the petitioner was unable to cross examine her or to contradict her.

This left her denial of guilt intact before the jury.

Her denial pointed the finger at the petitioner because he was the only other suspect.

The petitioner was also unable to get Linda to admit her guilt on the stand.

There was a reasonable prospect of doing this because Linda had previously made admissions against her penal interest with regard to this case on a number of occasions.

But defense counsel was unable to ask Linda, whether she knew in fact that the petitioner did not do it, because the Trial Court applied the Voucher Rule to preclude this enquiry.

Even if defense counsel would only have elicited from Linda that she had previously stated that the petitioner did not do it, this evidence would have had a dramatic impact upon the jury.

This is especially true in light of the fact that she had testified on the stand that the petitioner was alone at the time, along with the baby at the time that the baby was injured and that she had gone to the store.

It is very important to note that Linda’s testimony is the only evidence which would point the finger of guilt at the petitioner rather than at Linda except for the confession given by the petitioner which he recanted on the stand and attempted to explain away.

His inability to extract the evidence from Linda also hurt his ability to support the recantation of his confession.

Under Washington versus Texas, the petitioner was entitled to use the testimony of the witnesses he had called to the stand.

The situation here is very similar to the situation that this Court condemned in Davis versus Alaska.

It is a deprivation of the right to confrontation and compulsory process.

If you restrict a party to a single question suggesting bias or interest, when an adverse witness answers with a general denial and the party is seeking to adduce relevant and material evidence which is prohibitive in his defense.

Such restriction deprive the petitioner here form revealing the falsehood and bias in Linda’s testimony.

Also it may have appeared to the jury that the defense was engaged in a baseless attack on Linda and this may have hurt the petitioner as well.

We would call the Court’s attention to the opinion of the Ninth Circuit Court of Appeals in United States versus Torres which is based on this Court’s decision in Chambers.

The situation there paralleled of the situation in Davis.

We would submit that the rights to confrontation and compulsory process are clearly applicable without regard to whether a third-party confession appears in the record.

We based this submission on the cases of Washington, Davis and Torres in edition to this Court’s decision in Chambers.

As early as you direct appeal, the petitioner has argued that the Voucher Rule has been applied to limit the right of the petitioner to use the testimony of Linda and Dana Maness in violation of the Sixth Amendment principles set forth in Washington versus Texas.

In Chambers, this Court set forth a balancing test for evaluation of the constitutionality of a clash between the Sixth Amendment and state evidentiary rules.

The two components are the value and validity of the rule in question, and the second is the impact on the petitioner’s ability to present a defense.

With regard to the first component in this case the Voucher Rule is an irrational rule.

It promotes no state interest whatsoever.

Certainly the respondent has not come forward with any defense or explanation of the rationale for the Rule, or the rationale for the application of the Rule in this particular case.

Audio Transcription for Oral Argument – March 22, 1977 in Maness v. Wainwright

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Bennett H. Brummer:

With regard to the impact of the Rule on the petitioners’ ability to present a defense, we would refer this Court through the findings of the court below to the effect that the Voucher Rule undoubtedly worked to the detriment of the petitioner, and that some evidence suggesting his innocence was excluded.

It is also important to notice that the Court said that the fact finding process had been impaired due to the inability of the petitioner to cross-examine Linda Maness.

Because there is no legitimate state interest to be a countervailing weight in the balancing test we submit that in the light of the findings of the Fifth Circuit, the conclusion is inexorable, that the record reflects a constitutional violation of the petitioner’s right to fundamental fairness, as well as the Sixth Amendment guarantees incorporated in the Due Process Clause.

In conclusion I would like to briefly address myself to an additional question which the respondent has attempted to smuggle before this Court in his brief on the merits.

The additional question relates to the exhaustion of the state remedies.

We would submit to the Court that this case reflects no reason whatsoever, for this Court to depart from his normal policy to disregard a question when it is not properly before this Court, it was not presented to the court below, and if accepted by this Court would alter rather than affirm the judgment of the court below.

Additionally, substantively the argument is without merit.

The petitioner has presented to the State Courts a claim substantially equivalent to the claim presented to the Federal District Court.

This is the test set forth in the respondent’s brief and in the Fifth Circuit case in Lamberti v. Wainwright, clearly under the exhaustion doctrine repeated application to the State Courts are not necessary and the mere possibility of success in State Court in light of the facts of Chambers v. Mississippi is no bar to federal relief in this case under this Court’s decision in Wilverding.

But it was raised in the Fifth Circuit, wasn’t it?

Bennett H. Brummer:

It was not raised in the Fifth Circuit before the panel which decided the — which entered the judgment which is before this Court.

It was raised in a supplemental brief after the decision was made by the panel, when the Fifth Circuit tentatively agreed to hear the case en banc.

The court subsequently vacated, the order of granting rehearing en banc and no action was ever taken en banc.

The court reinstated the panel decision and the panel decision in no way could have related to the exhaustion argument.

No, but really, what I am saying is that your due process argument certainly was as defense below.

Bennett H. Brummer:

Yes, there is no question.

That is the only question that was raise below.

The respondent’s exhaustion argument was not.

We would respectfully request that this Court reverse the judgment of the court below, I would respectfully reserve the remainder of my time for rebuttal.

Mr. Brummer before you sit down, we talk yesterday little bit about the fact that these letters are not in evidence, the ones that you rely on, and in the examination of the wife in the court below, when the letters are offered, the court, after looking at one or two of them, said, counsel, what you have shown me is a bunch of love letters to her husband from a girl who loves her husband, no matter what he has done, it says so, and we except that characterization by the court as a correct description what’ is in the letter.

Bennett H. Brummer:

No you can not Your Honor.

The letters clearly reflect that the wife wrote to the petitioner saying, they do not understand how I can feel love you but they all think you did it.

Those were the letters that we attempted to submit to the —

Where Mr. Brummer is the most accurate statement in the record of what you can tend the letter show.

I could not even find the summary of the letters in the Appendix.

Bennett H. Brummer:

In the order of dismissal entered by the District Court, the District Court accepted our averment as to the contents of those letters on the basis that —

How do we know from the written material what your averments are, where do we find that?

Bennett H. Brummer:

The order of dismissal Your Honor is contained in the Appendix at Pages 213 and 214.

At Pages 213 and 214, the District Court’s order of dismissal is reflected saying that Linda knew the petitioner had not done it and that Linda was not at the store during the afternoon of April 14th, 1971.

In Page 213, he describes the letters in that way.

Audio Transcription for Oral Argument – March 22, 1977 in Maness v. Wainwright

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Bennett H. Brummer:

Yes Your Honor and these allegations were based on the averments of the petitioner which were uncontroverted before the District Court.

He was entirely entitled to make those findings.

Certainly the respondent gave him no cold method, nor did the respondents cross appealed those findings.

As to the allegations that she knew petitioners had not done it.

Bennett H. Brummer:

That is right, and that is exactly what the defense counsel tried to ask her on the stand, there was — maybe the third question out of his mouth on approximately Page 85 of this Appendix, he said isn’t it a fact that you know that Gary Maness did not, and he was cut off in mid question by an objection based on the Voucher Rule and that objection was sustained by the Trial Court.

Thurgood Marshall:

Mr. Brummer, I have a lot of trouble with these letters, they are not in the record; they are not in the place.

How are they before us?

Bennett H. Brummer:

They are before you, Your Honor in support of our general —

Thurgood Marshall:

Well, how are they before us if you are not here, are they?

Bennett H. Brummer:

The letters are before you in fact because they were attached to our motion to supplement in the Fifth Circuit which was denied by the Fifth Circuit.

The unavailability of the letters never became a question until the Fifth Circuit raised the question of there unavailability.

In the District Court the question of their unavailability never came up.

We were relying on Federal Rule or Civil Procedure 8 which says that the effect of a failure of the respondent to deny is to admit our allegations in our petition and if the respondent is without —

Thurgood Marshall:

You mean that, they have admitted that.

Bennett H. Brummer:

That is correct Your Honor.

Thurgood Marshall:

Well, what did they admit to these letters ought to say?

Bennett H. Brummer:

Whatever we allege, because they made no —

Thurgood Marshall:

I do not see how in the world — your allegations mean something, but the letters are different.

The best to have in this record is your version of what the letters say.

That is the most — that is in this record.

Bennett H. Brummer:

Your Honor, Federal Rule of Civil Procedure 8 (b) says, if the respondent is without knowledge, he may so state and this constitution —

Thurgood Marshall:

I do not care about any rule at all, but what I am saying is —

Bennett H. Brummer:

I see.

Thurgood Marshall:

— in the record — the letters are not in the record, right?

Bennett H. Brummer:

Yes.

Thurgood Marshall:

They are not in the record.

Bennett H. Brummer:

That is correct.

Thurgood Marshall:

So, we can not consider them, can we?

Bennett H. Brummer:

I think as you can safely ignore them and still grant this petitioner relief.

Your Honor, that if proffer of Dana Maness’s testimony supports the exact same contentions that are raised in the letters that the petitioner was not guilty and that Linda knew it and that Linda was not at the store at the time the baby was injured as she had testified from the stand.

Audio Transcription for Oral Argument – March 22, 1977 in Maness v. Wainwright

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Bennett H. Brummer:

The same allegations, the letters, I am really corrobative in a sense of Dana Maness’s testimony, which is before the Court in the proffer on Pages 123 and 124, and we would submit that coupled with the inability to cross-examine Linda Maness is sufficient to warrant, granting this petitioner relief.

Did you proffer the letters themselves?

Bennett H. Brummer:

We did not Your Honor.

The Trial Judge, however, precluded he was willing to look at those letters and exclude them without any admission.

She made it quite clear that there was no sense in the petitioner’s counsel persisting because she was not going to get those letters, she is not going to let those letters into evidence in any way.

Well, how does the reviewing court evaluate the Trial Judge’s exclusion without examining the letters?

Bennett H. Brummer:

Your Honor, the letters are only supportive of our general claim.

How does the reviewing court know that?

Bennett H. Brummer:

Because we made allegations to that fact in the Federal District Court which either the Court or the respondent could have called into question.

Neither the respondent nor the Court called those into question, as a matter of fact, the court adopted those characterizations.

That is how you know.

Mr. Brummer, let me ask one more question.

Justice Powell has showed me the Appendix to your motion to supplement the record in the Court of Appeals in which you did quote from at least one of the letters and in one of those letters there is the statement, “Nobody can understand why I still love you but then they all think you did it, that is when I said before.”

Now, can you tell me whether that letter is was one of those that were shown to the Trail Judge at the trail?

Is there any way we can know whether that is one of those letters?

Is there any way we can know which two letters were shown at the Trial Judge?

Bennett H. Brummer:

Your Honor, they were not just two letters shown to the Trial Judge; the petitioner’s counsel said, I have a bunch of letters.

Then the Trail Judge said, let me see the one that you have there, and then she excluded all the letters on the basis of the Voucher Rule.

But he refers specifically the one, a love letter to her husband from a girl who loves her husband no matter what he has done, that says that his characterizations is quite different from the impression one gets from the language you emphasize.

The answer is I suppose is the record really does not tell us which letters were shown to the Trial Judge.

The whole bunch was handed to him, but which one he is referring to, we do not know, because none were marked at the trial.

Bennett H. Brummer:

I suggest that the Court might look at Page 88 of the Appendix which identifies —

What page?

Bennett H. Brummer:

Page 88 of the Appendix which reflects —

Mr. Mack(ph) I have a whole bunch of letters Your Honor the court, I just want to see the one we are talking about.

Bennett H. Brummer:

That is what the Trial Judge said.

And I was trying to figure out which one you were talking about.

Bennett H. Brummer:

April 28, 1971 approximately at mid page Your Honor.

Right.

Bennett H. Brummer:

But it is clear, lower on that page that he has a whole bunch of letters and he makes every attempt to have those letters introduced into evidence.

Audio Transcription for Oral Argument – March 22, 1977 in Maness v. Wainwright

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Warren E. Burger:

Well every attempt is something; I think perhaps you have done a better job.

Bennett H. Brummer:

Thank you.

If possible I would like to reserve some of my time for rebuttal.

Warren E. Burger:

Yes, you reserve.

Bennett H. Brummer:

Thank you.

Warren E. Burger:

Mr. Berger.

Arthur Joel Berger:

Mr. Chief Justice and may it please the Court.

My name is Arthur Joel Berger counsel for the respondent Louie (ph) Wainwright.

Your Honors, petitioner’s argument in this case is predicated on the mischaracterization that is solely because of an arbitrary finding the Linda Maness was not an adverse witness at the Trail Court pursuant to Florida Statutes 90.09 kept numerous facts from the Jury which would tend to establish a doubt of petitioner’s guilt.

Petitioners’ then rise on Chambers as the legal basis for his relief.

Respondents in which Your Honors then under a proper characterization of what intact the court below, four concepts resolve this case, and these are the crucial concepts with which this Court must filter the various factual matters which he has before.

State Court has no problem with this Court’s decision in Chambers, but the factual situation in Chambers Your Honors is materially different than that situation which this Court is presented with in the instant case.

In Chambers the defendant was precluded from introducing dynamite, highly prohibitive, quality reliable evidence, evidence of his innocence.

But in this case Your Honors, the evidence which was excluded smokescreen innuendo evidence with which petitioner sought to confuse the jury.

But it wasn’t excluded on that basis.

Arthur Joel Berger:

That is correct Your Honor.

There were numerous Rules of Evidence which sustained the Trial Court’s rulings in exclusion.

But it wasn’t — the Trial Judge did not use those reasons.

Arthur Joel Berger:

Yes Your Honor, I ma merely suggesting this, I will subsequently get into the reasons, why this occurred.

I am merely stating that once you see the situation if actually has exists in this record that you will be able to see that what petitioner is setting up as a smokescreen and he wishes to analogize that smokescreen to the solid evidence, the dynamite evidence that Chambers had which so concern this Court.

Thus Your Honors the Chambers was decided not only on evidentiary principles but most importantly, as Justice Powell emphasized in his opinion, was decided on the totality of the circumstances that were before this Court when it rendered Chambers decision.

Second concept we ask you to filter and we subsequently get to the facts what actually occurred in this case, is that in Chambers, this Court to painstaking efforts to clarify one proposition that the state and the defense must still follow the Rules and Evidence and those Rules of Evidence Your Honors that this Court require both sides to follow.

The rules which in fact are based on a theory that these rules enhance the integrity of the fact finding process.

This Court did not hold in Chambers that every evidentiary ruling becomes a constitutional question regardless of whether that Rule of Evidence enhances the truth finding process.

This Court did not state that the mere preclusion of any evidence denies due process if it in some way hampers the defendant to presenting his case of and creating some doubt of guilt.

If such were the test Your Honors which is an essence what the defendant is stating to this Court, if such were the test there would be no Rules of Evidence which could withstand a due process attack.

In this respect Your Honors, the Maness situation is directly opposite the rationale of Chambers.

In Maness Rules and Evidence which kept up the evidence were rules designed to ensure the integrity of the truth finding process.

The third concept we ask you to look at this case or by after we get to defense.

Mr. Berger do you characterize that Voucher Rule is such a rule.

Audio Transcription for Oral Argument – March 22, 1977 in Maness v. Wainwright

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Arthur Joel Berger:

Your Honors, we note what this Court set in chambers but we do submit that the Voucher Rule has one very important purpose with regard to integrity of the truth finding process and that it precludes confusion of the jury.

It precludes —

In other words, do you characterize that Voucher Rule is such a rule?

Arthur Joel Berger:

Yes sir, it does —

So, your position is not that the Voucher Rule did not have any impact but rather that the Voucher Rule is a good sound rule.

Arthur Joel Berger:

No Your Honors, we will suggest later.

This case did not turn on the Voucher Rule at all as we have indicated, petitioner has mischaracterized the situation, he tried to create the simple picture before this Court that but for the Voucher Rule all this evidence would come in, but we submit that in spite of our position or in our position that other Rules of Evidence, rules which no doubt can —

But wouldn’t that be correct to say that the Trial Judge did in part rely on the Voucher Rule.

Arthur Joel Berger:

Yes Your Honor.

And you are showing that he had other grounds on which he might have relied?

Arthur Joel Berger:

Yes Your Honor, but we will show —

We do not really know whether he would have relied on those grounds had he not placed his ruling on the Voucher Rule.

Arthur Joel Berger:

Well, Your Honor as we will show clearly that the only purpose of the Voucher Rule is primarily state objections.

There are some indications in the record, the Court was merely stating, we have got to feel that this witness was adverse, but you will see in reading of this transcript, the crucial portion of this record which we will get to very soon.

Mr. Rogers (ph) I think Wigmore contains the statement that many jurisdictions follow a rule that on appeal where a challenge has made to the exclusion of evidence, the Trial Judge’s ruling will be upheld if there was any basis upon which the exclusion could have been properly sustained, even though the reason assigned by the Trial Judge was not a correct one.

Is this (Inaudible) that rule do you know?

Arthur Joel Berger:

Yes Your Honor, in those cases which Florida oppose are cited immediately after our citation to the same rule stated in cases by this Court.

Doesn’t all this argument Court of Appeals?

Arthur Joel Berger:

I am sorry Your Honor.

Was this position taken in the Court of Appeals which you are now arguing.

Arthur Joel Berger:

Which position Your Honors?

That there were other reasons for it or refresh new reasons.

Arthur Joel Berger:

The initial brief, that was filed by respondent in this case directed generally to this proposition.

The exact theory Your Honors which we were representing to this Court in our brief on both grounds was presented in supplemental brief order by the en banc court.

Well, I am not talking about the en banc court about the panel court.

Arthur Joel Berger:

The Three-Judge Court, Your honors.

Yes sir.

Arthur Joel Berger:

They did not, — I do not think that the opinion to begin with this Court of the brief of our side lade out all these rules of correspondence.

You did not raise it.

Is it random?

Audio Transcription for Oral Argument – March 22, 1977 in Maness v. Wainwright

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I am not saying you can not do it, I am just trying to find out the facts.

I am not saying it is improper.

Arthur Joel Berger:

The theory that was, the exact theory we are presenting here Your Honors is the one that I presented when I got the case in supplemental brief en banc.

But not before the panel.

That is what we trying to get clear.

Did you raise these arguments and make these points when you argued to the three member panel of the Fifth Circuit.

Arthur Joel Berger:

I did not argue to the three-member but that would be — we did not precisely take these exact positions.

Mr. Berger I think you are suggesting, because you help me throughout the very beginning of what counsel intend to be an adverse examination of the wife.

He started out, isn’t it a fact that you know that your husband Gary Maness objection did not, objection sustained.

Counsel has represented towards intended that the intent of that question was to represent that to ask if she did not know there husband did not kill the baby.

Now, what is the proper reason for sustaining that objection to the leading question other than effect that she was not an adverse witness and therefore the Voucher Rule applies?

Arthur Joel Berger:

Well Your Honor, if I might rephrase your question, what petitioner was asserting is that it was the Voucher Rule, that kept this out and we ask Your Honor to look very closely, it’s the Florida Statutes 90.09, 1971 Statutes, which says nothing about leading questions Your Honor, it talks about adversity.

What this Court did, as we get to it in one moment, is sustained these objections and expressly stated, Your Honors on Page 86.

Correct.

Arthur Joel Berger:

Court said, the objection sustained stricken, she is your witness, ask her question that are not leading, he did not say, you could have impeach her.

Well, but the court said, asking questions that are not leading is because she is not an adverse witness.

Arthur Joel Berger:

I know Your Honor.

The court may, under Florida Law, has in its discretion, the right to allow any party to ask leading questions.

You can ask leading questions of your own witnesses, is has nothing to do directly with the Voucher Rule.

The Court was merely stating not now.

I mean you have a right to ask leading questions if it is not at the discretion of the court of the witness is adverse.

So, the whole basis for the ruling is quite obviously that the court was not willing to accept the view that she should be treated as a hostile witness.

Isn’t that — am I wrong about that?

Arthur Joel Berger:

Well, Your Honor, I guess we just differ on that.

Like I said, my understanding is that this is a ruling or petitioner is trying to indicate a ruling totally on Florida Statutes 90.09, and that there is nothing in this statute which indicates anything about leading questions.

That is totally in benefit of the proposition.

Third concept which was now emphasized is this, if the state trial court judge acted fairly to both sides in this case, it do not act arbitrarily when it rules and it did not abuse its discretion in any one of those rulings.

Five, the forth and last principle we ask you to look at before we go to the record in this case is this, assuming that there was any evidentiary error which this Court finds in this case that error do not wrong as to the level of denying petitioner an unfair trial.

For three primary reasons: Your Honors as you review the testimony of petitioner, you will find according to his confession his crime occurred around 4 o’clock.

The state obviously did not when the fatal blows were stuck.

Audio Transcription for Oral Argument – March 22, 1977 in Maness v. Wainwright

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Arthur Joel Berger:

Petitioner in his testimony does not state that he was not in the house at 4 o’clock, in fact his testimony indicates that he was there.

Well, does not the autopsy of this infant child showed that the injuries were over a long period of time.

Arthur Joel Berger:

That is correct Your Honor.

They could not determine when the lethal blows were struck on the child’s head.

Arthur Joel Berger:

That is correct Your Honor.

But though petitioner tells you that he was still at the house and that viewing his entire testimony, there was not one statement in this record during petitioner’s case in which he says Linda did it.

There were a lot of inferences that petitioner wishes you to draw stating that he said that, but unless petitioner turns to the jury and tells him, my wife did it, how can any evidentiary error that might have occurred in this Court —

Mr. Berger, right on the first page of the examination the question, “Did you kill your baby?” Answer, “No I did not.”

Didn’t that present that very point?

You know they dictated the idea to the judge that that was the defense theory.

Arthur Joel Berger:

Well, Your Honor what I am stating at this point is that if petitioner when he gets up there on the stand and does not state my wife to did it that that as totality in construing the totality of the circumstances, is very important to determine whether if this Court find any evidentiary error that this case constitutes within due process.

The second point is that defendant never presented any secondary evidence other than his statements to indicate in any way that Linda had anytime touched that child.

The third point is that the evidence which petitioners complaining about now that he says was kept out, was not highly exculpatory, at best Your Honors this evidence was directed towards showing that Linda was not a credible witness or might be a liar.

Furthermore, that she might have been present at the time of the crime, but mere presence at the time of the crime Your Honors is not, as petitioner would have this Court equate, is showing that Linda committed this crime.

As we have indicated this case turns on 15 pages in the Appendix, I would ask the Court to indulge mean if they would to look of the Appendix with me to see exactly what occurred at this trial and what the judge’s rulings were.

That would be —

(Inaudible) to begin with.

Arthur Joel Berger:

Yes that would begin on Page 85.

Now, I would like for you to get a sense from the cold record of what the Trail Judge was doing.

Potter Stewart:

Page 85?

Arthur Joel Berger:

Yes, Justice Stewart, 85.

Petitioner starts to ask a question, he has not even asked Linda Maness her name yet.

So, the Court states that that is what he should do.

He next immediately tells this Court before there is any question asked that he wants Linda declared as an adverse witness, but there was no evidence before the Court to indicate that she is an adverse witness.

That is all the Court says at this point.

It is denied because there was no showing.

Now, he starts to ask another leading question.

The prosecutor indicates something with regard to Florida Statutes 90.09, but what does the court do.

Does it say, you can not impeach Linda because there is no way you are going to make a showing that she is adverse?

The Court says but your objection sustained as to leading.

Audio Transcription for Oral Argument – March 22, 1977 in Maness v. Wainwright

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Arthur Joel Berger:

I do not know whether he is impeaching or not.

The Court is stating not now, she is not adverse.

The Court is not stating categorically that she could never be impeached.

Page 86, counsel starts to inquire and the Court does not say you are not allowed to impeach Linda Maness because she is never going to be an adverse witness and we are cutting it off right now, such as it was the situation in Chambers, where in Chambers this the Trial Court had all the facts at the point.

What she is stating is, just ask her questions that are not leading.

Now, we go down a little bit and we start the testimony.

One of the questions is, with regard to a bruise that this baby had in the morning, the defense ask, how did that baby get the bruise on her forehead?

Does Linda Maness turn around and say, Gary, my husband did it?

No Your Honors.

What does she say?

She say, I do not know.

This is an adverse way, that he wants to call adverse, it was pointing the finger to her husband, I do not know.

Then the Court merely states after that, well I think we just return at them narrative events that you are starting to ask of me — narrative.

That is all the Court says, it does not say, do not impeach, because we have got to look what the Trial Judge is doing to petitioner in this case.

Page 88, there is an objection regarding hearsay, the Court sustains on hearsay grounds and not the adverse with this rule. Counsel then asked, “Did you tell anybody anytime how that baby was injured?”

And this is the answer of petitioner, what have you believe, is on adverse witness, “No, I did know how she was injured.”

She is not testified against petitioner Maness.

Then the Court says, let us start talking about, or the defense starts talking about the letter we got day-to-day for 28, 1971.

It is a letter that is a marked, he just gets up there and says, read this letter to the Court.

Now, a letter that has not even introduced in evidence or just even been sought to be introduced into evidence.

Mr. McWilliams (ph) suggest there is no proper predicate that the Court should sustain, what does a court do with regard to this letter, in spite of the fact that it is not introduced, in spite of anything this Court bends over backwards and says, let me see that letter you are starting to talk about now, the specific letter, the April 28th, letter which you want to have read to jury.

And this has done as the Court emphasizes, knowing that it has not even been even marked for identification, Your Honors, is bending backwards, over backwards to try and be fair to the defendant.

She looks in that letter and she makes an unchallenged ruling after looking at that letter and states that all this letter shows is that Linda Maness loves her husband, it does not show adversity.

Then the Court asks, is there something you attempting to impeach this witness on?

There has been no question asked along these lines.

That is an indication Your Honors, not that petitioner will never be allowed to impeach but just that this Court having heard no inconsistent statement states not now.

He then proceeds on and the Court says, you can not get this letter on to evidence unless there is something she says that is contrary.

You want to impeach by an inconsistent statement, you have to have some statement for which the evidence you are going to use as inconsistence.

This is not a Trial Judge that is saying you can never impeach because of the Voucher Rule.

Defense counsel says, well, I have got another letter, eventually this letter.

Audio Transcription for Oral Argument – March 22, 1977 in Maness v. Wainwright

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Arthur Joel Berger:

The Trial Judge that they would have you believe is acting arbitrarily in keeping our all of this evidence.

She says, okay I will look at that letter also.

She categorizes an objection again, on the basis of that pleading, not the petitioner Maness will never be allowed to impeach, and all this court says is everything you have shown me, and obviously in this case, petitioner never showed all these letters, that the Court never said, I will never look it all these letters, I will look at everything you got.

The Court says, all you show me as a bunch of love letters so far.

This is not an adverse witness yet.

Then Mr. Minkess (ph) something that would be very important in this Court’s review of this various items or evidence.

He explains why he wants us to use this letters as a substantive evidence of guilt, but he says in Page 90, he says these letters can come in from impeachment.

Now, what does the Court say?

Does the Court say you can never use these letters for impeachment?

This Court judge did not preclude arbitrarily in impeachment of this witness.

She says, but there is nothing to impeach yet, there is an inconsistence statement.

The Court then says something that is quite contradictory to the impression that petitioner wishes you to get off the Trial Judge’s actions because right after this, this colloquy occurs at the Court, but there is nothing to impeach.

Mr. Minkess (ph) could I call her as an adverse witness?

Then what does the Court say, do they say, do you want to let him, she is not precluding at this point.

Then all she says is right after that, well, let us pass on the issue right now, let us go back to the original question you asked, and if there is something to impeach we can come to it.

And she says, I think that is the best way to do it.

Then petitioner talks about some statement to the police or some statement regard to the being out the house.

In all the Court says is that this time she is not an adverse witness, these letters show that she is not an adverse witness, and then the Court says something that this Court said in Chambers.

That is on Page 91.

The Court, “We are going to have to proceed by the Rules of Evidence counsel, she has not said anything for you to impeach.”

At this point counsel talks about some letters to the police indicating that she never stated in that one statement to the police that she was not out of the house.

The Court looks at the statement and says that there is nothing inconsistent because they never answer the question.

It is not stating that as petitioner would have you believed that what occurred at this trail was a precluding of his ability to impeach solely because of Florida Statutes 90.09.

Then there is another crucial point which we will emphasize subsequently during Maness ask his wife, did you tell your husband on particular date that she was pregnant, then what does counsel do, he does not get an answer.

He withdraws the question.

This question has never brought up again, there is never testimony.

This is at the bottom of Page 92 Your Honors.

Well, you have skipped something in the middle of Page 91 where the prosecutor said, that is tending to impeach his own witness which is not admissible, and the Court said, that is right.

Arthur Joel Berger:

Because at that point Your Honors, she has not indicated, there was no evidence to indicate that Linda Maness was not —

For some reason she calls defense counsel, ‘boy’.

Audio Transcription for Oral Argument – March 22, 1977 in Maness v. Wainwright

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That is kind of odd, isn’t it?

Arthur Joel Berger:

I beg your pardon.

That is right, and boy, this is not an adverse witness.

Arthur Joel Berger:

She is not referring to defense counsel Your Honor.

That is just a colloquial expression, as I understand it.

No boy, is this an impossible situation, something like that.

We are just sticking with that for just a moment Mr. Berger.

You pointed out that the Court said, just a little bit above on Page 91, she hasn’t said anything for you to impeach, and Mr. Minkess said well she said that she was out of the house at the time that the baby was supposedly be.

Now she had said before the jury, and I have evidence here that she said that she wasn’t, and then the Court wasn’t let him use that evidence relying on the Voucher Rule as I understand it.

Isn’t that correct?

Arthur Joel Berger:

Yes Your Honor, so be correct — on part.

That particular purported contradiction in the direct testimony as to whether or not she was present when the child was allegedly beaten.

That was a contradiction that was excluded on the Voucher Rule and that really went to the heart of our case, didn’t it, as to whether or not she was present there?

Arthur Joel Berger:

Well, Your Honor, at that time the Court was merely stating that it had no evidence before that she was adverse, but it was not stating that —

Then Mr. Minkess pointed out that there was the conflict, oh I see as to the adversity point because —

Arthur Joel Berger:

That is all what the Court was doing, they said, do not asking him the question, there is nothing inconsistent.

Yeah, you have not shown me adversity yet.

It did not say you can never bring this in later.

How could the defense counsel had shown adversity?

If the theory of adversity is that she really is the one who killed the child, and if that point were made to the Trail Judge as it was by the direct question, did you kill the child?

What more was counsel required to do to demonstrate adversity?

Arthur Joel Berger:

Well, Your Honors that raises a very important point.

The concept of adversity is that a witness subject before the Court and tell the jury something that is incriminating against the defendant.

Now the question that you have posed or other way you have formulated the question is that you are now making the adverse witness test, not one as we had indicated, but a suspect test, which is —

But she did say something that tended to incriminate the defendant because she said that she left the house and then when she came back, the baby was in the condition that precipitated the death.

Arthur Joel Berger:

Yes but she never says the defendant did it at this point moreover Your Honor —

But she did say the defendant was — she was gone about 20 minutes and the only person there was the defendant.

That is not the very difficult inference that draw, is it?

Arthur Joel Berger:

Yes, Your Honor, but she repeatedly tell to the jury, “I do not know how this baby was killed.”

She said that because she was not there but you do not suggest that that evidence tended to incriminate the defendant.

Audio Transcription for Oral Argument – March 22, 1977 in Maness v. Wainwright

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Is that your view of the facts?

Arthur Joel Berger:

That would be correct Your Honor because her position is she does not know how this baby was hurt.

She was not testified arbitrarily.

You mean she knows that the baby suffered the beating during 15 minute period when she was away and the father was the only person present and that is not incriminating.

That is your position.

Arthur Joel Berger:

She does not state that she knows that the father was the only person present.

Well, he was there when she left then he was there when she came back and she does not know if anybody else.

Now, that much is clear.

Arthur Joel Berger:

Yes, that is correct Your Honor.

Well, in a situation where the two people, three persons in a room and one of them is killed, and it is obvious that one of the two did it and wouldn’t both of them be adverse witnesses without more.

Arthur Joel Berger:

No, Your Honor, we submit again that you can not take this position that an adverse witness or any person can be impeached only because he is a suspect, because if that is true Your Honors in every case that we will ever have unless there is a clear confession that everyone sees.

There are multiple suspects with regard to a case.

My case is that two, there are two people in the room, one of the two kill the third one.

As our question is which one of them did it.

That is the only question involved?

Wouldn’t they automatically be adverse witnesses, both of them?

Arthur Joel Berger:

I submit not Your Honor.

Again, I submit that that is just a suspect testing and there would have to be some parameters once again as part of —

The only way it could be a non-adverse witness would be for the witness to say, he did not do it and I did it.

That is the only way.

Arthur Joel Berger:

No Your Honor, we submit —

What other way?

Arthur Joel Berger:

We submit that the situation —

What other the testimony could he give?

Arthur Joel Berger:

If Linda Maness had gotten before the jury and said, “I know Gary Maness did it, he did it.”

In that situation there would be adversity.

Well, suppose that the witness says, in my case, the witness says, I did not do it.

Both of them say I did not do it.

So, one of them called to examine the other one.

Arthur Joel Berger:

I mean if one part is called to the stand, I submit Your Honors, that that —

Audio Transcription for Oral Argument – March 22, 1977 in Maness v. Wainwright

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Yeah, as an adverse witness.

Arthur Joel Berger:

I submit to that that is not the predicate.

Well how would you establish that he is an adverse witness in my type of cases?

Arthur Joel Berger:

I submit Your Honors that you, I guess you could not unless the witness was getting up thier actively.

You couldn’t establish that there was an adverse witness on my facts the one of the two of them did it.

Arthur Joel Berger:

That is correct Your honor, because, as I have indicated, then that would allow every suspect in case to be brought to the stand and cross examined again totally destroying that witness for no apparent reasons.

And if there were four people involved to our suspects, petitioner would have you believe that you can just create each, one of those four to create some kind of doubt.

What is wrong with this?

Arthur Joel Berger:

Well, Your Honor that goes toward, we submit, confusion of the jury, unless there are some affirmative evidence in this case like in Chambers.

Wouldn’t she agree that with this dialogue back and forth between the Judge that this jury was confused in this case.

Arthur Joel Berger:

Yes Your Honor and that is exactly what counsel wanted to do.

It would have been less confusing if she had testified.

Arthur Joel Berger:

Counsel, at his point across Your Honors, without any answers, he was creating doubt merely by the questions.

What is the Rule of Evidence in Florida about prior inconsistent statements of a third-party witness?

Arthur Joel Berger:

Well, Your Honor that rule is contained in Florida Statutes 90.09.

And what is it?

Arthur Joel Berger:

That statement says, if I can quote.

Finish your answers.

Arthur Joel Berger:

It says, “But before the last proof can be given, and that is prior inconsistent statement, the circumstances of the statement sufficient to designate the occasion, must we mentions to the witness, and he must be asked whether or not he made the statement.”

What I want to know is whether the prior statement is admissible only for impeachment or is it —

Arthur Joel Berger:

Oh (Inaudible) Your Honor.

Florida Law provides that if you have impeaching evidence that evidence comes in only from impeachment unless that particular piece of evidence also is admissible substantive evidence under Rules of Law, as we have indicated in remainder of our brief which we are unable to get to that there are numerous rules which preclude this evidence from coming in as substantive evidence.

Even though on this record Your Honors we know that there was no indication of —

Well, let us just assume that is an out-of-court statement of the witness, a third party witness, testifies something in court and then the examiner wants to introduce into evidence an out-of-court prior statement inconsistent.

Let us assume that it is admissible.

Is it admissible only for impeachment or not?

Arthur Joel Berger:

No Your Honors, the procedure that we would have to be employed in this case is that a normal impeachment type of examination would have to occur following that counsel must mark for identification and seek to introduce that evidence as substantive evidence itself, in essence where it is true, and not just to show contradictions.

Is it admissible for its truth?

Arthur Joel Berger:

Well, that depends on the evidence.

As I indicated before, I am sorry if I was not cleat, then the Court must rule on this piece of evidence as it would any other piece of evidence and determine if it is admissible.

Audio Transcription for Oral Argument – March 22, 1977 in Maness v. Wainwright

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So, if it is hearsay, it is not admissible.

Arthur Joel Berger:

Exactly, it would be used for impeachment but if it is clear hearsay, it could not be admitted as substantive evidence if the party sought to admit it as substantive evidence and tell the Court that it wanted that evidence admitted as substantive evidence in addition to impeaching evidence.

Thank you Your Honor.

Warren E. Burger:

Mr. 48.58, you have one minute left.

Mr. Brummer, I won’t trespass on your minute if the Chief Justice will extend it a minute.

On Page 28 of the Attorney General’s Brief, he makes the statement, “At no time during Gary’s testimony, did Gary directly state the Linda gave Misty the fatal beating on April 14th.”

I am reading from the Attorney General’s Brief, Page 28.

I think I said it.

“At no time during Gary’s testimony, did Gary directly state that Linda gave Misty the fatal beating on April 14th.”

He had agreed that they were in the house together.

What I want to know is whether that you can refute that statement.

Bennett H. Brummer:

I don’t believe that the petitioner knew for certain or was willing to testify that for certain Linda had done that but he did directly accuse his wife.

There are number of places in the record and am I can refer the Court through those places if the Court wishes.

Did he introduce the evidence of any other witness supportive of that view?

Bennett H. Brummer:

He offered the testimony of Dana Maness to the extent that Linda said that the petitioner did not do it and that Linda had not gone to the store at the time the baby was injured as she had testified from the stand.

Additionally petitioner’s counsel in opening statement of the five sentence of his own statement, he said that petitioner did not do it and we will show who probably did.

He had previously stated that Linda would be the defense’s chief witness.

The petitioner had denied killing the baby on the stand.

There are only two suspects in this case. He testified that Linda discovered the baby comatose, and that the baby was injured while he was in the front yard outside of the house.

He testified that Linda was lying when she left the house.

I will give you the references for this if you like.

The opening statement regarding the fact that defense was going to show who probably killed the baby appears at Appendix 25 that Linda would be the defendant’s chief witness at Appendix 17, the petitioner denied telling the baby at 100, Linda discover the baby according to Gary at 102, Gary testified that the baby was injured before the petitioner returned from work, 101, that Linda was lying when she said that she left the house, 117, that the petitioner testified that he lied to the police to protect Linda from jail, 108-109, 114, 117, 120.

Additionally he testified that an inspector head, the hospital head told him that one of them would go to jail if the baby died.

That appears I believe at 108 and two times on 120.

The petitioner further testified that he had never struck the child on the face contrary to Linda’s testimony and also contrary to the proffered testimony in Dana’s, in the proffered relating to Dana’s testimony where Dana say that Linda said that the petitioner never touched the child, and also that the petitioner only knew what Linda had told him about how the child was injured.

And this appears at numerous places in the record at 120, at 118-119, at 115, and at 103-105.

I would also, in terms of whether he was successful in pointing the finger back at Linda.

I would also appoint out to the Court that the State requested a jury instruction to convict Gary as an accomplice.

He could only have been an accomplice to one person.

And they made that request at Page 134 of the Appendix.

Audio Transcription for Oral Argument – March 22, 1977 in Maness v. Wainwright

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Bennett H. Brummer:

That request was denied by the Trial Court.

Warren E. Burger:

I think you have answered the question abundantly.

Bennett H. Brummer:

Thank you Your Honor.

Warren E. Burger:

The case is submitted.