Mullaney v. Wilbur – Oral Argument – January 15, 1975

Media for Mullaney v. Wilbur

Audio Transcription for Opinion Announcement – June 09, 1975 in Mullaney v. Wilbur

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Warren E. Burger:

We’ll hear arguments next in Mullaney against Wilbur, 74-13.

You may proceed whenever you’re ready Mr. Arey.

You pronounce it Arey or Arey?

Vernon I. Arey:

Arey, Your Honor.

Warren E. Burger:

Arey.

Vernon I. Arey:

Mr. Chief Justice and may it please the Court.

My name is Vernon Arey and I represent the petitioners in the instant case, Warden Garrell S. Mullaney of the Maine State Prison in the State of Maine.

Facts of this case briefly as follows; the trial although the state’s case against the respondent in this case whom I shall refer to –throughout my discussion as the defendant, since he appeared in that posture below and I referred to him as such in my brief.

The State of Maine alleged that Mr. Wilbur had alleged — had inflicted such severe injuries upon the victim, Mr. Claude Hebert with his fists and a blunt instrument that Mr. Hebert died shortly after receiving this beating.

The theory of the defense was that though this beating had been inflicted, the actions had been generated by the heat of passion on sudden provocation because of an indecent homosexual overture made by Mr. Hebert.

The jury rejected this contention and convicted the defendant of murder.

Warren E. Burger:

Well, you can hardly call that a contention in the traditional sense, can you?

Since he didn’t take the stand and it’s gone into the record sort of backward, didn’t it?

Vernon I. Arey:

Well, Your Honor I think that depends upon tactics of counsel.

Counsel — excuse me, whether wisely or unwisely apparently made the decision that he did not have to place the defendant on the stand and chose to do it through failure to object to the entrance into evidence of the statements of the defendant as to what happened of that time, and then relied upon his opening argument to point out to the jury how he had felt he admit his burden as it was imposed by the State of Maine.

After a complex procedural history, which need not concern us here, the defendant in 1971 appealed this case to the Maine Supreme Judicial Court.

Essentially, he argued at that time and in substance that the presiding justice at his trial had committed error when it charged that once the state had proven beyond a reasonable doubt, an intentional and an unlawful killing that malice aforethought would be presumed and that the burden would be on the defendant to mitigate the crime thus proved to manslaughter of the voluntary type.

Unless he, the defendant, established by a preponderance of the evidence that the crime was committed upon heat of passion on sudden adequate provocation.

This has generated essentially one issue in this case.

And that issue is whether in placing the burden upon the defendant to show even by a preponderance of the evidence, the absence of malice aforethought, the court has denied the defendant on this case due process of law under the rational of In re Winship.

Maine court rejected any possible Winship violation on two essential grounds.

First, it recognized that the Maine law establishes as part of its fundamental system a single generic concept of felonious homicide and that once a felonious homicide is proved, criminality is established.

But more than that in this case and when I get to the lower felonious homicide, I will again be emphasizing this.

The Maine law requires not only the mirror establishment of a felonious homicide with constituent elements to erect a presumption of malice, but a felonious homicide of a particular type and that is a felonious homicide which is either intentional or which is characterized by acts, which when objectively evaluated have a very high depth producing potential.

If those approved, the State of Maine establishes as its policy the crime as murder definitionally proved.

The process by which we define this is called a presumption of malice.

The Maine court in Wilbur traced the history of the single generic concept to felonious homicide as it existed in Maine for a hundred years and said, “In viewing Winship, we find that the case of In re Winship is confined to its facts.”

Which essentially is talking about elements of criminality, when we are making the decision on the first instant, whether it be to brand and a juvenile or the label of delinquent, or a man with the label of criminal that different factors are involved in making a determination as to what due process means given that context.

In Maine, we are not doing this in the first instance. We are making a determination as to what the appropriate penalty shall be for a felonious homicide.

Byron R. White:

Mr. Arey, your statute — am I correct your statute doesn’t speak in so many words of felonious homicide?

Vernon I. Arey:

That is correct Your Honor.

And as far as I know the statutes of Maine have never spoken of felonious homicide.

But tracing through the history of this case, I think it would become clear that this is deemed of no significance by the court and has been acquiesced in by the First Circuit Court of Appeals in its decision.

The second ground that the Maine law court denied the defendant’s appeal on was essentially that the case of Winship even if extended in the view of the Maine court would not be retroactive.

And of course it’s conceded by all, but that is not the case.

The case of In re Winship has been made retroactive by Ivan v. City of New York.

The defendant in this case then petitioned the District Court for its southern division with district of Maine petition writ of habeas corpus, alleging the same material that he has alleged here and we are arguing about before this Court that he argued before the Maine law court.

Petition was granted with the reference to that one issue, but the opinion and order of the Honorable Justice Gignoux being that there was no such thing in the State of Maine as the crime of felonious homicide.

That the Maine statutes would not speak of the crime of felonious homicide and that the State of Maine is in effect misapplying its own law.

The state timely appealed from that decision of the District Court and went to the First Circuit Court of Appeals in Boston.

Pending the state’s appeal to the First Circuit court in Boston, the state — a case State v. Rollins, which is found at 295 A. 2d 914 and is cited in the brief, and is an important in establishing what the concept of felonious homicide is in Maine, was decided by the lower court.

It fully reaffirms the principles which were announced by Justice Weber and the original decision in Mr. Wilbur’s appeal to that court.

The case was briefed and argued before the First Circuit, and the decision of the District Court was affirmed.

The State of Maine then petitioned this Honorable Court for a writ of certiorari.

During the pendency of the writ of certiorari, the case of State v. Lafferty was decided by the Maine law court.

In State v. Lafferty is found at 309 A. 2d 647, and the case of State v. Lafferty expressly rejected the right of either the First Circuit Court of Appeals or of the Federal District Court to indicate and dictate to the State of Maine what its law was and that the State of Maine was proper in deciding its law and went on further to reaffirm the principle of the concept of felonious homicide as announced in the original Wilbur decision.

This Court granted petition for writ of certiorari summarily vacated the First Circuit decision, remanded the case to the First Circuit in Boston for consideration in light of the case of State v. Lafferty.

Upon reconsideration, we finally were postured with the court — the position of the case as it is before this Honorable Court today, because on remand, the First Circuit acceded to the fact that the law of Maine recognized the concept of a single generic offense within which the penalty category designations of murder and manslaughter operated not as elements of criminality, but as elements or factors bearing upon the punishment of an individual who has had the determination made beyond a reasonable doubt that he is a criminal.

However, the court went on despite this fact, the case of In re Winship as it is announced as a matter of policy should apply to this situation because of the potential stigma which an individual faces when he is faced in the difference between life imprisonment and 20 years for manslaughter or the possibility of probation and the possibility of a man’s loss of liberty is as great in a situation where you are determining punishment as it is when you are making the decision in the first instance of criminality.

The state respectfully suggests that that is an unwarranted extension of the case of In re Winship beyond the facts and limitations to which it spoke.

The state further suggests that in the there are cases in this Court which have indicated and which were relied upon by the State of Maine in the original Wilbur decision that factors bearing upon punishment have been treated differently, and we ask ourselves why.

And as we go through the concept of felonious homicide, I hope that I can explain that to the Court.

It is critical that this Court understand what the State of Maine is talking about when it talks about the concept of a single generic offense as it is designated in the common law of the State of Maine.

Essentially, the concept is there is one generic offense, an unlawful or a felonious homicide.

And that this unlawful or felonious homicide consists of degrees and that these degrees consist of murder and manslaughter.

Manslaughter being again divided into two degrees, common law manslaughter and voluntary manslaughter, and these degrees are nothing more nor less than punishment categories which society has designated in advance for actions which have certain results attributed to them.

Now what are the elements of felonious homicide?

The elements —

William J. Brennan, Jr.:

Do you have any other crime in Maine, Mr. Arey, where this is also true?

Vernon I. Arey:

The single generic concept Your Honor, yes I believe arguably in the situation of assault.

Vernon I. Arey:

That assault is recognized as the underlying crime and the element of high in aggravation is recognized as only going to punishment.

High in aggravation is not recognized as being a criminal element.

Now, the State of Maine does require that the element of high in aggravation be decided by a jury and it also requires that it be decided beyond reasonable doubt.

I am not sure that that decision would come about the same way nor am I sure that the Ferris case, and that’s the case I’m referring to, is analogous to this one, and why do I say that.

I say that because there is no middle ground in assault by which we’re going to put any burden upon the defendant to disprove or prove anything.

There is either simple assault which is the criminal act in itself or the element of high in aggravation.

There is no middle ground by which it can drop back into.

In other words, if in the State of Maine there were only manslaughter and murder, you would have an analogous situation, there’ll be no reason for a presumption because there’s nothing to mitigate to.

You’re talking about either criminality or non-criminality the minute you drop back to the lower designation.

Secondly, I would argue that on the facts of the case as we posture it in felonious homicide punishable as murder, the case is proven beyond a reasonable doubt.

Because unlike the original common law presumption which required only the showing of an unlawful killing, and which required the defendant to establish factors in excuse and justification as well as in palliation, the main presumption does not arise until the state has proven an intentional and an unlawful killing.

And the definition of unlawful is a killing which is not justified nor excused, the state bearing the burden upon the factors of criminality, the defendant bearing the burden only upon the elements of palliation.

Now, the elements of felonious homicide in the first instance are that the victim is dead and unless be proven beyond a reasonable doubt.

Second that the defendant killed the victim.

Third, that the killing was voluntary that is that it was an act of his will.

And lastly, that the killing is unlawful and that is that it’s not justified nor excused.

Felonious homicide punishable as murder has precisely the same four elements with one additional, and that is that the killing and addition to all these other things be intentional.

If that is the case, the law of Maine says that constitutes murder in that law by definition.

The process by which we do this is a presumption, a so called presumption of malice.

Malice –Mr. Justice Rehnquist

William H. Rehnquist:

Mr. Arey, as I understand one of your opponent’s contention is that taking the Maine court at its word as to — in your explanation of how the criminal statute is to be construed, and perhaps conceding for the sake of argument that if that had taken place in this case, there’d be no violation of Winship.

That the trial judge did charge the jury at that place at I guess page 40 of the appendix where he says “The words malice aforethought are most important because malice aforethought is an essential and indispensable element of the crime of murder.”

Is that an inconsistency between the trial judge’s treatment of the case and the Supreme Court of Maine’s treatment?

Vernon I. Arey:

To the extent that it says that I would have to say yes.

There is no question Your Honor, but what this is not the best charge for which to deal.

I would point out however that when we talk about crimes even when we are known to be talking about degrees, we sometimes use the word crime.

For example, we speak about the crime of first degree murder and yet we know that first degree murder is nothing more than a degree of a crime to a murder.

I would suggest that the language of the court if read in context, the context within which the charge is given fairly supports the rational of the Maine law court as announced in Wilbur, Rollins, and Lafferty.

I would suggest that you do not start in the middle of the charge where the judge is talking about palliation and assuming that the state has proven an intentional and unlawful killing, but that you start at the beginning of the charge and read it from beginning to end given all of the assumptions, excuse me, that must come from what is fairly read in the charge.

I further would cite that — that not only did the Maine law court say precisely that this is what they had done and as according to the language of Justice Weber in the original Wilbur appeal, the court at instruction was predicated by the court.

Vernon I. Arey:

And this is the instruction about the use of the language to which Your Honor is referring, language which is inconsistent perhaps with the position of the Maine law court.

The court at instruction was predicated by the court upon the assumption that the jury had first been satisfied, and Your Honors will find this language on page 85 of the printed appendix, I’m sorry I didn’t direct your attention to that, that the jury had first been satisfied that the state had proven a voluntary and an intentional killing beyond a reasonable doubt.

That is the assumption that has been throughout this case at the time that the judge is talking about mitigation.

It’s not on the assumption of the Maine law court.

It’s the assumption of the Federal District Court in its opinion, first opinion.

And it’s the decision of the First Circuit after the remand of State v. Lafferty that the jury had first been instructed that there was an intentional and an unlawful killing proved beyond a reasonable doubt before the presumption arose.

Now malice aforethought as Maine views it, and as I have indicated as nothing more than a term of act, having no independent meaning of viability apart from the context out of which it arose, and that is that felonious homicide which are intentional shall have attributed to them the highest degree of blame within this for punishment purposes, wherein again we call this policy the so called presumption of malice.

Now what is voluntary manslaughter within the concept of felonious homicide?

The punishment category of voluntary manslaughter has precisely the same elements that murder does an intentional and an unlawful killing.

But the unlawful killing must have been generated by heat of passion on sudden adequate provocation.

It constitutes nothing more than a mitigating factor to the charge of felonious homicide punishable as murder.

To explain this further, in a charge for manslaughter, the state would not necessarily bear the burden on the fact — on the issue of heat of passion on sudden adequate provocation.

Byron R. White:

But I take it that it can’t be both, but if there’s a provocation, it can’t be murder.

Vernon I. Arey:

That’s correct.

And the reason it can not be Your Honor is because —

Byron R. White:

And so that if there is provocation that you can not find a felonious — a murder, you can’t find murder.

Vernon I. Arey:

You can not find a murder.

Byron R. White:

You can not find whatever element it is that makes it murder, what is it?

Vernon I. Arey:

That is the —

Byron R. White:

Malice —

Vernon I. Arey:

The aspect of the maliciousness, yes.

To that extent, what we are talking about is merely a matter of mitigation.

We’re saying, as a matter of policy, we’re gong to say that this particular crime will be punished.

How will it be punished?

It would be punished by whatever the penalty is for murder.

But if you can convince us that in spite of the fact that it is intentional and in spite of the fact that it’s unlawful, it should be punished as manslaughter by establishing this element will do it.

Byron R. White:

Let’s assume that you as a jury man was a — sitting in jury, when you thought the evidence on provocation was absolutely evenly balanced, and you thought that “Well, I’ve been instructed not to find this man guilty of murder except beyond a reasonable doubt — unless I’m convinced beyond a reasonable doubt.

But under these instructions, apparently I can’t let this evenly balanced evidence on provocation create a reasonable doubt in my mind, because the defendant has the burden of proof to convince me by preponderance.”

Vernon I. Arey:

That’s correct.

That’s precisely the way it works.

Vernon I. Arey:

But because —

Warren E. Burger:

Well —

Vernon I. Arey:

And the reason we say that is —

Byron R. White:

Well isn’t that a fairly — isn’t arguably that’s a — isn’t that an invasion of the reasonable doubt standard?

Wouldn’t you say that if evidence is evenly balanced on provocation, but if it were proved beyond by preponderance he wouldn’t be guilty of murder?

Wouldn’t you say evenly balanced evidence would create a — should create a reasonable doubt?

Vernon I. Arey:

I would say no to that — I’d say yes, even we balanced evidence creates a reasonable doubt, but when you’re talking within the concept of a punishment category, instead of the concept is to whether or not the verdict is going to be guilty or not guilty.

Byron R. White:

But you would still have to find him guilty of murder.

Vernon I. Arey:

And you do that quite apart from the fact as which bearing heat of passion —

Byron R. White:

Yes, but the jury still brings in a verdict, guilty of murder.

Vernon I. Arey:

That’s correct.

Byron R. White:

But — and that the juryman says to himself though “If I could’ve let this evidence on provocation which is evenly balanced create a reasonable doubt, I would’ve found him innocent — of murder.”

Vernon I. Arey:

Would’ve known.

Okay, he would not have punished it as murder.

So there is — yes, there is burden —

Byron R. White:

He would’ve found him innocent of murder.

What does the jury — what does the verdict look like when it comes in if the jury accepts the — and finds him guilty of homicide?

Vernon I. Arey:

Manslaughter?

Byron R. White:

Of manslaughter.

Vernon I. Arey:

It’s guilty of manslaughter.

Byron R. White:

And what about — is it not guilty of murder or not?

Vernon I. Arey:

No, it is just guilty of manslaughter.

And the verdict of guilty of murder is —

Byron R. White:

But I suppose you can’t try him for murder again?

Vernon I. Arey:

Pardon?

Byron R. White:

I suppose you never try him for murder again?

Vernon I. Arey:

No you could not.

Byron R. White:

So, it’s implied that they have found him innocent of murder?

Vernon I. Arey:

As far as double jeopardy provisions are concerned, yes.

William H. Rehnquist:

Where they given three forms of verdict, guilty of murder, guilty of manslaughter and not guilty?

Vernon I. Arey:

Depends upon what the evidence in the case shows.

If the — if in fact the issue of voluntary manslaughter is in the case, the verdict form would be guilty of murder, guilty of manslaughter, not guilty.

William J. Brennan, Jr.:

What about this case were there three forms submitted?

Vernon I. Arey:

That’s correct.

Murder, manslaughter, not guilty.

Now it must be remembered that again it’s a given that we’re talking about an intentional and an unlawful killing, and therefore the only branch of felonious homicide punishable as manslaughter which was given to the jury was voluntary manslaughter that does exist a felonious homicide which is involuntary manslaughter, and that is essentially speaking in terms of what it takes to arrive the criminality bears the same elements as we have in discussing what a felonious homicide is in the first instance.

If the state proves a mere unlawful homicide and does not carry the burden of proof beyond a reasonable doubt as to intent, then the verdict could very properly be guilty of involuntary manslaughter.

Warren E. Burger:

You can —

Potter Stewart:

In an unlawful killing?

Vernon I. Arey:

An unlawful killing nothing more.

Potter Stewart:

But the jury is never given a verdict form that talks about felonious homicide, is it in any case?

Vernon I. Arey:

No, it is not Your Honor.

No it is not.

That is not to say that the jury could not be.

It is simply just to say it is not.

Potter Stewart:

It is not a practice.

Vernon I. Arey:

And I think the reason for it is because it’s easier to talk to a jury and have them comprehend in traditional terms.

Such as you and I talk about the crime perhaps of first-degree murder knowing full well that murder divided into first and second degree is really one crime, murder.

Potter Stewart:

In those traditional terms coming down to that common sense language, this charge put upon the defendant the burden of proof.

Vernon I. Arey:

Now, we maintain that it did not.

We maintain it put the burden of proof upon him to reduce the crime from murder to manslaughter.

We say that because the presence or absence of heat of passion on sudden adequate provocation is irrelevant to an establishment of murder, either as a punishment category, and as a punishment category and it’s also irrelevant to the establishment of a crime.

Whether heat of passion is present or absent in the case has no bearing whatsoever on whether the crime is lawful or unlawful on the first instance and whether it will be punished as murder or manslaughter in the first instance when the jury is viewing the evidence that has been presented by the state’s case.

Thurgood Marshall:

Mr. Arey, I could understand that better if these were bifurcated crime, but this is all in one crime.

Vernon I. Arey:

That’s correct.

Thurgood Marshall:

And the judge has got to sought all of these out.

Vernon I. Arey:

That’s correct Your Honor.

Much the same as they have to sought out the defenses of insanity —

Thurgood Marshall:

And those sorting out in a criminal trial, there is a burden of preponderance of evidence.

Vernon I. Arey:

That’s correct, Your Honor.

Thurgood Marshall:

And that doesn’t get you in any trouble?

Vernon I. Arey:

We say no, and we say no first of all because the case of In re Winship has been defined, as we see it, as bearing up on punishment elements.

And second, even if the same harms could be said to accrue at the time that the jury is considering the question as to whether or not to mitigate the homicide, we are no longer dealing with a man who is innocent in the eyes of the law and who was no longer shielded and protected by the presumption of innocence, because we have a man whom the jury had to find by definition committed an intentional and an unlawful killing upon another human being in a state which has defined those actions as constituting murder.

William H. Rehnquist:

You’re saying then in effect, this element is like the defensive insanity in Leland against Oregon or —

Vernon I. Arey:

Precisely, that the same analysis could apply.

And that we’re dealing with a matter of definition of the state’s internal law as to what does or what does not constitute a crime, and the facts of this case and as it is viewed by the Maine law court does not come up — the due process is not violated.

We’re not saying that fairness doesn’t apply.

We’re not saying that some of the same high may not float, but we’re saying you view due process differently when you’re dealing with a man who is guilty and who has been found to be guilty beyond a reasonable doubt, than you do a man with whom you are taking in and trying to make a determination on the first instance as to —

Thurgood Marshall:

The jury is doing all of this at one time.

Vernon I. Arey:

Yes, Your Honor and —

Thurgood Marshall:

In one room, and you think that the jury first goes through his part about his guilty of a felonious murder, and then will get to the sentencing part.

I would submit that you don’t know what that jury does.

Vernon I. Arey:

Well we —

Thurgood Marshall:

And that jury can very well be all fouled up in between where we use preponderance and where we use reasonable doubt.

Vernon I. Arey:

That was discussed in Leland —

Thurgood Marshall:

And they certainly will get confused.

Vernon I. Arey:

That was discussed in Leland versus Oregon Your Honor, and I think the assumption has to be that juries follow the instructions that we give them, that juries have been given conflicting burdens in criminal cases for years and have managed to —

Thurgood Marshall:

Well, I was talking about preponderance as a reasonable doubt.

Those are so far apart, and when I as a juror I’m thinking “Well, I don’t know whether I’m thinking a preponderance or reasonable doubt on this, I don’t know.”

Vernon I. Arey:

Well that the determination of what proof was beyond reasonable doubt is defined.

The burden that deals with the preponderance of the evidence is defined.

And when we tell a jury that he has to bear the burden of the defense in some states of insanity, or the defense in some states what constitutes self-defense by a preponderance.

We have different burdens given on different issues in jury trials all the time.

Byron R. White:

Then you don’t even incur that he’s innocent and murdered though.

Vernon I. Arey:

Not after we’ve proven an intentional and an unlawful killing because that definitionally is murder.

Byron R. White:

I would suppose — I suppose you really ought to answer that the jury when it finds a defendant guilty of manslaughter does not find him innocent of murder.

Or —

Vernon I. Arey:

It does not — he does not find him innocent in the criminal sense, Your Honor he has committed exactly the same acts.

Byron R. White:

I would think you would say he could be put back on trial for the — in the same offense?

Vernon I. Arey:

Because there’s a matter of — the fact that we say that if the jury in fact finds him guilty of manslaughter that the state as a matter of simple, call it procedural fairness of dues without any reference to double jeopardy concepts, will not allow the state to retry him for murder.

Vernon I. Arey:

And that analysis would follow.

Now this is not a unique approach.

Byron R. White:

Well, if the jury finds him — would you — the two elements of murder the way you say are just an intentional killing —

Vernon I. Arey:

Unlawful.

Byron R. White:

And intentional?

Vernon I. Arey:

Right.

Byron R. White:

Now, when the jury finds, in a trial like this, finds him guilty of manslaughter.

Vernon I. Arey:

Intentionality remains, unlawfulness remains, everything remains but the law has —

Byron R. White:

So you say the jury has found him guilty —

Vernon I. Arey:

Of everything —

Byron R. White:

Of those two elements beyond a reasonable doubt?

Vernon I. Arey:

Right.

That’s correct, of everything necessary to convict for murder.

But the law is a matter of policy would say —

Byron R. White:

Well then you ought to be able to try him again for it if it were reversed on appeal for some error.

Vernon I. Arey:

Well that may be so, but I would maintain that we probably could not under the Maine law, because we would say as a matter of fairness, it’s not fair for the state —

Byron R. White:

Under the Maine law of double jeopardy?

Vernon I. Arey:

Under the Maine law of what constitutes fairness, now the issue is never been presented.

Byron R. White:

Well that would only be because they found him innocent once at murder.

Vernon I. Arey:

If it could not be.

Now, this is not a unique approach.

I would invite the Court’s attention to the statutory scheme of the States of Oregon, Louisiana, the proposed criminal code in Michigan and most notably the State of New York, which to our view treats the proposition exactly the same as we do.

They define and take the concept of a single generic offense.

They define what they mean by murder and manslaughter and they say specifically in talking about murder that when a person causes a death of another with the intent to cause the death of another person, but he maintains that he does not commit murder because he acted under the influence of extreme emotional disturbance, this constitutes a mitigating circumstance reducing to manslaughter in the first degree.

However, this need not be proved by the prosecution initiated — by the prosecution in any prosecution initiated under the manslaughter provision.

Thurgood Marshall:

Well it’s a little different in Maine.

In New York, they have murder one, murder two.

They have about four of them.

Vernon I. Arey:

I’m just — I’m just citing that for the proposition that the concept of felonious homicide and of voluntary manslaughter as being only a mitigating factor is not unique.

Thank you.

Potter Stewart:

The other states were Oregon, Louisiana and proposed in Michigan, is that it?

Vernon I. Arey:

I believe they proposed in Michigan, the ALI Model Penal Code, they’re all in my brief Your Honor.

Potter Stewart:

Right.

William H. Rehnquist:

Well don’t almost — don’t the large majority of the states when you’re talking not about mitigation but about self-defense put the burden on the defendant to prove justification on that sense?

Vernon I. Arey:

A great number do but Maine does not, and that’s why we say we’re consistent with the theory because self-defense goes to criminality, we require the state to negative.

Potter Stewart:

Most states it’s in affirmative defense.

Vernon I. Arey:

I’m not sure if it’s in most, but I know in a great many.

Potter Stewart:

You post again to the question of guilt or innocence.

Vernon I. Arey:

That’s correct.

As they view it, we don’t view it.

We don’t view heat of passion of some provocation is going to kill and ever since we do self-defense.

Warren E. Burger:

What you point on that is that this Court has approved Oregon specifically submitting to the jury two different elements of the case, I won’t say to the crime of the case, with two different standards, one beyond a reasonable doubt and one by preponderance to the evidence by way to confirm it.

Vernon I. Arey:

Oh, No.

I can’t say that.

No I wouldn’t — Oregon has not done that.

Leland — the problem in Leland was that the defendant had to bear the burden beyond a reasonable doubt.

Warren E. Burger:

Well, but they have changed the statute right after Leland.

Vernon I. Arey:

Subsequently, yes.

Warren E. Burger:

Yes.

The statute today in Oregon is exactly the way you postulate the Maine law.

They must treat it as permanent.

Vernon I. Arey:

Right, I’m not sure that their analysis is the same Your Honor, but clearly the burdens are.

Byron R. White:

I suppose you would really should — I would think to say that Maine could also put the burden on the prosecution to prove the absence of provocation by a preponderance to the evidence?

Vernon I. Arey:

I suppose that under the theory that the state could do that, because the absence — presence or absence of heat of passion is not an element of anything.

Byron R. White:

Except for just for a penalty, you say?

Vernon I. Arey:

For penalty.

Thank you.

Warren E. Burger:

Very well Mr. Arey.

Mr. Rubin.

Peter J. Rubin:

Mr. Chief Justice and may it please the Court.

Peter J. Rubin:

My name is Peter Rubin and I represent the respondent in this matter.

The first issue which I would like to discuss relates to the history in Maine of this concept of felonious homicide.

As Mr. Arey pointed out, the District Court did reject that concept and the First Circuit Court of Appeals in its first decision also rejected that concept.

The Maine court then came forward with some subsequent decisions in which it delineated the rational behind that particular concept.

However, I would submit to this Court that the concept has no basis in the history of Maine that the — in Maine, the crimes have always been murder and manslaughter.

The case is supported.

The state refers to one case, State v. Connolly which talks about in terms about double jeopardy the underlying felony being the same.

But even in the context in that case, the court refers to the crime of murder and the crime of manslaughter.

The statutes refer to murder and manslaughter.

They don’t refer to felonious homicide.

And although, perhaps ordinarily, it is true that a federal court is bound to accept the law of a state as it is annunciated by that state.

I think that his interpretation and perhaps one reason that the charge here is so much in conflict with the concept of felonious homicide is that the charge itself does reflect accurately.

The charge — the law in Maine as it had been given by numerous judges in the past, and then the Maine law court came forward with its new concept of felonious homicide and that’s why the conflicts appear, I believe, between the trial judge’s charge and the concepts in Lafferty and Rollins.

I think a review of the common law of other states also will show that there’s no other state which has ever developed this concept of felonious homicide being the underlying single crime at common law, and that the other states recognize the crimes — crime of murder and manslaughter to be separate and distinct crimes.

Warren E. Burger:

Well, are you saying that the State of Maine cannot construe its own law in that way?

Peter J. Rubin:

I — certainly the State of Maine could construe its law that way, I think perhaps prospectively.

I’m not sure that in the context of this case where I believe historically the law of Maine was — never utilized this concept of felonious homicide that it would be proper to do it in the context of this case and cases prior to this case.

Now, I don’t take the position State of Maine couldn’t do it for the future.

I just don’t think there’s any support in Maine law for it.

I think that on that basis, the First Circuit and Judge Gignoux were correct, First Circuit the first time around and Judge Gignoux in his opinion that a federal court should not be bound to accept the law of Maine in this context, but should be free to examine the law itself and to come to a conclusion that malice aforethought is an essential element of the crime.

State v. Mary in 1936 said that malice aforethought is an essential element and that it’s a fact.

But getting beyond —

William H. Rehnquist:

But the courts you won in below had really repudiated that type of analysis now, haven’t they?

Peter J. Rubin:

Judge Gignoux never has because he’d probably never been given to the opportunity to.

William H. Rehnquist:

The turn of the chair, is it?

Peter J. Rubin:

The First Circuit yes, but I don’t ready anything in that second decision which says we now agree with the Maine court if we were free to interpret the law.

I think the First Circuit came to the conclusion after the remand by this Court that it should accept the Maine law as annunciated and go from there to the merits of the issue.

And — but I don’t read anything in the second First Circuit decision which says “In rereading Maine law, we now agree that the Maine court’s interpretation is correct.”

If we were free to interpret the law itself.

William H. Rehnquist:

Do you read anything in the remand at this Court?

Peter J. Rubin:

Well, I took the position with the First Circuit that all the remand said was reconsideration, I’m sorry, further consideration it did not say reconsideration.

And I took the position that there was a distinction there that this Court was remanding it because an intervening case had come down and that it wanted to give the First Circuit an opportunity to review its decision in light of that intervening decision.

I — obviously the First Circuit did not accept that argument and went on to decide the case on the merits rather than sticking to its original decision as to its obligation to accept the law of Maine as annunciated by the Maine court.

The concept of malice aforethought itself, let’s assume for a moment there was and always has been a concept of felonious homicide in Maine.

There is no absolutely no support for the proposition that malice aforethought is not a fact.

Even in State v. Connolly, which is again the major case on which the state relies, the court said “The state must affirmatively show malice aforethought.”

It talks about it as if it were a fact, so that even accepting the concept of felonious homicide, malice aforethought itself is not a public policy statement.

Never has been in Maine.

It’s always been a fact which the state — which has been one of the elements for the state to prove which they have traditionally proved by a presumption.

I think there’s ample evidence here historically in the law of Maine which is directly inconsistent with this concept.

I don’t believe that a federal court should be foreclosed from protecting the federal constitution in a case merely because a state court comes up with an interpretation which is new and sudden.

And I recognize that this is not identical to the Bouie case in terms of the situation there and that there was prejudice to the defendant when he went in and then sat down at the counter, he wasn’t — didn’t have notice of the charges.

But nevertheless, in this charge the whole trial proceeded on the basis that malice aforethought was an essential element, it was a fact and then the Maine court came forward with its interpretation which removes that.

William J. Brennan, Jr.:

You use fact, the word fact Mr. Rubin, as if — as essential element?

Peter J. Rubin:

Yes.

William J. Brennan, Jr.:

Yes.

Peter J. Rubin:

Yes.

And the Maine court then removes that constitutional issue by the way it defines it law, and then if this Court is foreclosed from or it has to accept that interpretation, we have or Mr. Wilbur has been deprived of his right by fiat almost in terms of the interpretation.

Warren E. Burger:

In response to a question by Mr. Justice White, Mr. Arey said that if there was provocation shown, then there could never be a murder, at least that’s the way I understood him.

Now, does Maine law not recognize that there can what we’d call an overreaction that is that the response to the provocation was more than and unjustified more than necessary and unjustified?

Peter J. Rubin:

It has to be — yes, I think it has to be a reasonable response to the provocation.

Warren E. Burger:

Suppose there was a provocation and the man provoked who was on trial is shown then to have gone back into his house and got a shotgun and came out and shot the provoking party dead.

Now, could that not be murder in Maine?

Peter J. Rubin:

I believe on the facts it could be.

Warren E. Burger:

On that — the ones I’ve postulated?

Peter J. Rubin:

Yes.

I certainly —

Warren E. Burger:

Or perhaps he wasn’t — he may clear that up later.

I certainly should think that that would not be manslaughter any longer.

Peter J. Rubin:

Right

Warren E. Burger:

Do you agree?

Peter J. Rubin:

I agree with that, yes.

So that I’ve come to the conclusion that in reviewing Maine law that this interpretation of felonious homicide has never been the law of Maine and shouldn’t — this Court should not be bound, and if this Court isn’t bound, then I think it’s quite clear that the trial judge did accurately state the law as it has always been in Maine that malice aforethought is an essential element and is a fact — that it is factual in nature.

Really, otherwise there would’ve been no reason for malice aforethought to ever been developed because the court in its charge could have just say “Once the state is proved an intentional and unlawful killing, there arises a presumption of murder.”

You wouldn’t have to get into this concept of presumption of malice aforethought if it’s not a fact, if it’s only a public policy statement.

Don’t —

Harry A. Blackmun:

Mr. Rubin on your thesis, do you think the trial tactics would’ve been any different?

Did defense known of a development of this felonious homicide concept?

Peter J. Rubin:

I’m not sure.

I did not represent the respondent at the trial level.

That’s the item I tried to think about to make it analogous to the Bouie case in terms of actual prejudice to the defendant during the trial stage where as similarly in Bouie, there was prejudice to the defendant when he walked into the restaurant.

I don’t know.

I think perhaps it could, but I’m not sure that I can exactly articulate the thought processes that perhaps the defense attorney would go through in that situation in terms of the burden of proof.

Certainly, if the state had the burden of proving malice aforethought and disproving the provocation, showing that there was no adequate provocation, maybe defense counsel in that case would’ve objected to the introduction of the statements, rather than making a decision to rely on those statements as the method of proving his defense.

Byron R. White:

The Court of Appeals finally got around to accepting the law of Maine the way the Supreme Court of Maine interpreted it?

Peter J. Rubin:

Again, I don’t know if I’m making a distinction without a difference, but I would submit that the First Circuit merely said “We understand that we are obligated to accept that law, but we do not necessarily agree that that would be our interpretation of it if we were free to do so.”

Byron R. White:

But you’re suggesting that we should take a different of the Maine law?

Peter J. Rubin:

Yes.

That’s right.

Byron R. White:

From either the Supreme Court of Maine or the Court of Appeals?

Peter J. Rubin:

No, I would suggest that the first decision by the First Circuit Court of Appeals is the correct one on this particular issue.

Byron R. White:

Now, that’s different from the Supreme Court of Maine.

Peter J. Rubin:

Yes, that’s right.

Byron R. White:

About Maine law.

Peter J. Rubin:

Yes.

That’s correct.

Byron R. White:

Well now, let’s assume that we accept the Maine law as the Supreme Court of Maine ultimately found it to be, and at the end that the Court of Appeals recognized.

Peter J. Rubin:

Fine.

Byron R. White:

Then what fault do you find with the Court of Appeals?

Peter J. Rubin:

I find no fault with the Court of Appeals on — if accepting that.

Peter J. Rubin:

However, I do think there’s another —

Byron R. White:

Well, let me ask you this then.

Suppose that Maine in order to implement this view of a single crime but with different punishments for different degrees had a separate penalty trial, and at the first trial they simply an issue of finding guilt or not a felonious homicide.

And then with a separate jury, you tried what degree it was which really determined the punishment then you put the burden on the defendant to prove provocation by a preponderance to the evidence.

Now, would you object to that?

Peter J. Rubin:

Yes, I would.

And I think —

Byron R. White:

Well, then I would think you would find —

Peter J. Rubin:

I believe the First Circuit said that that is impermissible at least in the context of a single trial and I would suspect the rationale of the First Circuit would apply equally to a separate bifurcated trial on that issue.

I believe.

Warren E. Burger:

Then that takes away some of the reason for having bifurcated trials, doesn’t it?

Peter J. Rubin:

I’m not sure I understand.

Warren E. Burger:

Well, if you must do it exactly the same way on the second on the penalty trial as you do in a trial on the issue of guilt —

Peter J. Rubin:

Well, certainly there’re other reasons, for instance in the insanity area to have a bifurcated trial other than merely question of burden of proof.

In this context it seems to me, and that really gets into the third issue on the merits in this case as I see it, which is does In re Winship, the rational of In re Winship apply to penalty categorizations.

If I could hold that in advance just for a minute, I will respond to it.

I think there’s an intermediate issue which is much narrower, and which I think it’s important for this Court to consider.

And that is that is if you review the charge in this case, it is quite clear that the judge did not charge that the jury had to prove an intentional and unlawful killing.

He only charged that the state must prove an unlawful killing and then malice aforethought is presumed.

And if you look at the court’s definition of malice aforethought, it is quite clear that that definition comprises the concept of intentional.

So what the trial judge was saying to the jury was once the state proves an unlawful killing, which in essence was that the defendant killed the victim, there arises a presumption of malice aforethought, presumption of intent either a subjective intent to kill or the implied malice, and then the burden of proof shifts the defendant to disprove the intent.

And I would refer to — it’s interesting to note that the jury did come back for further instructions, and at that time the trial judge says “All unlawful killings are presumed to be with malice aforethought.”

Warren E. Burger:

What page in the record appendix?

Peter J. Rubin:

Its page 61, Your Honor and also on page 62.

He also says “When the jury is satisfied that the killing was an unlawful killing, then the defendant in such case has the burden of satisfying a jury by preponderance of the evidence that the killing was not with malice aforethought.”

What did he mean by malice aforethought?

He meant that it was not intentional.

So that I think there’s an intermediate issue in this case which is much narrower than the third issue to which Mr. Justice White referred, which is that under clearly under In re Winship, the state has to prove that it was intentional and not withstanding the fact that the law of Maine requires the state to prove intent.

In fact in this case, the judge erroneously charged the jury that malice aforethought, i.e. intent, was to be presumed until the defendant came forward with evidence by a preponderance of the evidence and disproved intent.

I think that’s a fairly — at one point in the beginning of the charge he says “The state must prove intent that the killing was intentional.”

Peter J. Rubin:

He then says “And I would be back to that element at a further time.”

And I submit that in reading the charge as a whole when he came back to the element of intent, he is saying to the jury that the state satisfies that burden by a presumption.

It satisfies its burden as to intent by the presumption of malice aforethought.

William H. Rehnquist:

Of course there is something to what your opposing counsel says that you don’t simply seize one instruction out of context and the questions whether the instructions as a whole fairly charged the jury.

Peter J. Rubin:

And I wholeheartedly agree with that.

And I believe in reviewing the charge, there was only one instance right at the very beginning on page 20, I believe of the appendix, 19 and 20 where the court, I’m sorry, where the court refers to proving that the state has the obligation to prove intent.

And then from that point onwards throughout the rest of the trial, he talks about malice aforethought and the presumption of malice aforethought defines malice aforethought to include intent.

William H. Rehnquist:

Was exception taken?

Peter J. Rubin:

I don’t believe that there was.

I’m sorry, it was pages 37 and 38 that where the judge for the first time refers the element of intent.

Then at top of page 38 in the appendix he says “I’m going to leave for now, my suggestion, my language concerning what the jury finding of what the defendant intended.”

And I submit from that point on, there was never a reference again to the fact that the defendant — the state must prove intent beyond a reasonable doubt.

It was always in terms of the presumption of malice aforethought, the presumption of intent once the state had proved an unlawful killing and the defendant must disprove intent.

So that I think even reading the charge in its entirety, it’s quite clear that the judge proceeded on the basis that the state satisfies its burden of proof on intent by a presumption of intent after it has proven certain other facts.

William H. Rehnquist:

Well you’re saying that it’s conflicting with a charge that says one thing at one point and another thing at another point.

Peter J. Rubin:

Well I’m saying that it says — no I — well, yes in one sense.

It says one thing at one point, and then many other times it says the completely opposite thing so that —

William H. Rehnquist:

Well, but isn’t there some obligation on a defendant to accept if he feels that way about the charge?

Peter J. Rubin:

The Maine law court accepted this issue under Maine law even though there was no — I don’t believe there was an exception because it presented a serious issue, and under the Maine rules, the court itself could recognize and decide an issue which it felt raise serious constitutional question even though objection had not been raised.

And I think it did so in this case.

So I would submit that perhaps, yes there is that ordinary obligation, but the Maine rules provide for a consideration of this issue such as this when they are — the court considers them to be very important, and they did so in this case.

Potter Stewart:

Well and then too isn’t it true that as of the time this trial there really wasn’t much to accept no basis in which to accept?

Peter J. Rubin:

That’s correct also Your Honor, yes.

I’d now like to move on to the third issue to which Mr. Justice White referred, and I would submit that the rational, the underlying rational of In re Winship applies equally even when you’re considering factual matters which go to punishment.

Clearly if you accept the concept of felonious homicide as enunciated by the Maine court, then heat of passion on sudden provocation which relates to voluntary manslaughter is a fact which merely distinguishes punishment categories.

Certainly though, in the context of Winship, the difference between life imprisonment and a maximum of 20 years is quite substantial.

Certainly also, the difference between a conviction of murder and manslaughter in terms of the stigma that’s attached is quite different.

I think in Lafferty, the Maine court recognizes that murder has this high degree of blame worthiness, whereas manslaughter is mitigated and it isn’t considered quite so blame worthy.

William H. Rehnquist:

Of course in Leland against Oregon, it’s a difference between guilty and not guilty.

How do you distinguish Leland?

Peter J. Rubin:

Well, I think that gets into the third consideration for the court which is whether or not there’re any counterbalancing factors which do not warrant shifting the burden of proof or putting the burden of proof on the state.

I would say that in this situation, when you’re talking about heat of passion and sudden provocation, the facts which prove the killing by the state, which the state obviously has to prove, will also go a long ways to resolving the factual issue of heat of passion on sudden provocation.

It’ll show perhaps the difference in time there that between the provocation, if there was some, and the killing.

It will show just how the killing occurred perhaps.

These are objective factors which I think are equally available to the state as they are to the defendant.

Whereas when you’re talking about insanity, I think you’re much more severely limited to a state of mind which is not shown by objective factors, it’s shown more by subjective factors, perhaps its more difficult in that situation for the state to come up with evidence, and that would be a reason when you’re balancing the difficulties of proof in this situation to say it to distinguish the question of insanity from the question of — present in this case of heat of passion on sudden provocation.

I think that clearly, there is much evidence that’s equally available to the state as to the defendant.

Furthermore, I think the issue in Winship revolves around whether or not when the court said at the beginning of its holding that the state must prove every factor essential to the crime, whether when referring to crime, the court was really focusing in on the word crime or the word — the facts that are essential to the overall determination of what the defendant is guilty of.

Whether its — whether you’re talking about the crime or you’re talking about the punishment category.

Certainly, the facts of that case in a strict legal case were not criminal they were juvenile delinquency case.

Furthermore, at the end of the case, there’s a reference and an adoption of language by Justice Fuld of the New York court where he talked about proving the case against the defendant or rather than the crime.

I think it’s so important — one of the other underlying factors in Winship was the intent to minimize the chances of error in a criminal trial, and because of the fact that a defendant could be — loses liberty, and because of the stigma that attaches to a defendant.

Certainly, that has application whether you’re talking about an element of the crime, or whether you’re talking about something so important even though it only goes to punishment which distinguishes between the ultimate categorization of what the defendant will be punished for.

And here in this case, the sole distinguishing factor between murder and manslaughter is heat of passion on sudden provocation.

And it appears to me that if you put the burden of proof on the defendant to prove that it was done in the heat of passion on sudden provocation that you are increasing the chances of error substantially because as, I don’t remember if it was Mr. Justice White or who referred to the fact that the jury might if they could use this evidence on the question of reasonable doubt might have a reasonable doubt, but they can not under the instructions and therefore would have to be or be forced to convict the defendant of murder, even though they were exactly even on the question of in the heat of passion on sudden provocation.

So —

William H. Rehnquist:

Would you agree with your opponent that many if not a majority of the states put the burden of self defense in a murder case on the defendant?

Peter J. Rubin:

I don’t believe he said a majority.

I believe the State of Maine in State v. Millett where they shifted the burden back to the state to disprove affirmative defenses.

Said that they were now adopting the majority rule which says that the state must — once the issue was raised by the defendant wanted some evidence of self-defense, then the burden of proof shifts to the state to disprove it.

I believe that is the majority rule.

I assume there probably are some states which continue to place the burden of proof on the defendant.

William H. Rehnquist:

Do you think those rules are all invalidated by Winship?

Peter J. Rubin:

I think that certainly the question of self-defense, a holding in this case that Winship is applicable to the question of heat of passion and sudden provocation certainly would have applicability to the rule of self-defense.

William H. Rehnquist:

But isn’t self-defense the type of thing just like you say insanity is that the defendant is much more capable of coming up with evidence of than the state?

Peter J. Rubin:

No, because I think self-defense is again a question where there are objective facts, because if you, for instance you may have the victim charging at the defendant there are — and self defense is not —

William H. Rehnquist:

Well the victim isn’t there to testify.

Peter J. Rubin:

No, but if there are other witnesses that the state certainly has a burden of showing that the defendant killed the victim and the process of doing so would presumably show some of the facts that surround it.

I think that there is more apt to be objective facts available on the question of self defense and heat of passion than there are when you’re talking about the question of insanity.

There may be cases very truly that the state has no facts which it could introduce, but I would submit that probably in a great majority of cases, the state has ample evidence available to it, objective evidence relating —

William H. Rehnquist:

So then in your view, a defendant in every criminal case is entitled to a charge from the trial judge that unless the state has proved the absence of self-defense beyond a reasonable doubt, he’s entitled to a judgment of acquittal?

Peter J. Rubin:

Only if there has been some evidence introduced into the case which raises the issue of self-defense.

Certainly, if there’s no evidence in the case which would raise that issue, no I don’t think that the state has to disprove it.

But once either the state or the defendant has introduced some evidence of that, then I think that a decision in applying Winship to the facts of this case could very easily —

William H. Rehnquist:

But then you don’t treat self-defense exactly as you dot the proof of the killing where presumably you don’t say that you say the state has to prove the evidence of the killing beyond a reasonable doubt, not if there’s some evidence of a killing the state has to go ahead and prove it beyond a reasonable doubt.

Peter J. Rubin:

I think that’s true, but I believe that the question of self-defense can very easily go to one of the elements of the crime in terms of the intent, the unlawfulness of the killing.

One of the definitions of unlawful is that it is not excusable or justifiable.

And the definition in Maine anyway of, I’m not sure I’m getting the right one of justifiable I guess it would be is that it was done in self-defense.

So that it seems to me that if that — the question of self-defense does go to an element of the crime, i.e. that the killing was unlawful and once that there’s some evidence into the case of self-defense, there’s a question of whether or not the killing was unlawful.

And it would seem to me that it would be the obligation of the state at that point to prove beyond a reasonable doubt that it was unlawful, i.e. that it was not in self-defense.

So that I think that it could very well go strictly to the element of the crime of unlawfulness of the killing.

I think though that the court could avoid all those issues and avoid all the issues the applicability of Winship to — in the heat of passion on sudden provocation by deciding this case on the intermediary to the second issue which is discussed, which is that the state in this case or the trial judge in this case placed the burden of proof as to intent on the defendant to disprove intent once the state had proved an unlawful killing.

And as such, the — it seems to me everybody agrees that intent is an element of the crime of felonious homicide, if that’s the crime.

It’s an element of the crime of murder, if murder is the crime.

And I believe that the defendant was required to disprove it.

I think — believe that that would fall right squarely within Winship without any extension Winship or elaboration on it.

Thank you very much.

Warren E. Burger:

Thank you Mr. Rubin.

Thank you gentlemen.

Mr. Rubin you acted at the Court’s request and by the Court’s appointment here.

And thank you for your assistance to the Court and of course your assistance to the gentleman you’re representing.

Peter J. Rubin:

It’s been my pleasure Your Honor.