Parker v. Gladden

PETITIONER:Lee E. A. Parker
RESPONDENT:Clarence T. Gladden
LOCATION:Multnomah County Circuit Court

DOCKET NO.: 81
DECIDED BY: Warren Court (1965-1967)
LOWER COURT:

CITATION: 385 US 363 (1966)
ARGUED: Nov 09, 1966
DECIDED: Dec 12, 1966
GRANTED: Apr 18, 1966

ADVOCATES:
David H. Blunt – for the respondent
John H. Schafer – for the petitioner

Facts of the case

On May 19, 1961, the Multnomah County Circuit Court convicted Lee E. A. Parker of second-degree murder and sentenced him to the Oregon State Penitentiary for a potential maximum of the remainder of his life. The Supreme Court of Oregon affirmed his conviction, and denied a rehearing on October 8, 1963. During the trial, the bailiff stated to Mrs. Gattman, an alternate juror, “Oh, that wicked fellow, he is guilty.” Misses Inwards and Drake, both regular jurors, overheard this statement. Parker was not aware of these statements during the trial, and consequently did not bring them to the attention of the court.

After the Oregon Supreme Court affirmed his conviction, Parker gave his wife a tape recording and asked her to contact members of the jury to find new grounds for setting aside his conviction. Mrs. Parker secured the names of the jurors and contacted three, Misses Inwards, Drake and Gattman. Mrs. Gattman was an alternate juror who expressed her displeasure with the verdict to Mrs. Parker. Mrs. Inwards gave conflicting testimony in an affidavit; she initially testified that the bailiffs’ statements did not influence her testimony, but later stated that the remarks could have affected her decision. Mrs. Gattman was the only juror who was sure of the bailiffs’ statements, and later admitted that she was disturbed by the verdict. Mrs. Drake gave an account of the bailiff’s statements that conflicted with Mrs. Gattman’s.

Parker filed for post-conviction relief. The post-conviction trial court held that the trial court would have granted a new trial if it had been aware of the bailiff’s statements. The Oregon Supreme Court reversed, holding that the trial court erroneously applied the statutory standard for judging a motion for a new trial under the Oregon Post Conviction Act. It also held that the bailiff’s statements did not violate Parker’s state or federal constitutional rights.

Question

Was Parker’s right to due process violated when a bailiff told two jurors, “Oh, that wicked fellow, he is guilty”, and “If you find him guilty and there is anything wrong, the Supreme Court will correct it”?

Earl Warren:

Number 81, Lee E.A.Parker, Petitioner, versus Clarence T. Gladden, Warden.

Counsel are you ready?

Mr. Schafer.

John H. Schafer:

Mr. Chief Justice, may it please the Court.

The question we have before you on this case is whether the Supreme Court of Oregon was correct in holding that it’s Fourteenth Amendment obligation to afford a fair and impartial trial was not violated in affirming a conviction for second degree murder when three jurors were told by an officer of the state during the course of the trial that the defendant was in fact guilty.

William J. Brennan, Jr.:

Is that the actual language?

“Oh, that wicked fellow, he had killed him?”

John H. Schafer:

You have to think Your Honor that it may have been sifted down a little bit.

William J. Brennan, Jr.:

Oh, oh.

John H. Schafer:

It just came through though.

I don’t know.

I can’t tell you.

It does sound remarkable.

William J. Brennan, Jr.:

It sounds from an 1890 —

John H. Schafer:

I have to agree.

William J. Brennan, Jr.:

Who done it then?

John H. Schafer:

I have to agree.

The facts in the case are not — I believe in any dispute whatever.

This petitioner was once tried for first degree murder.

He was convicted of second degree murder.

That conviction was set aside by the Oregon Supreme Court.

A new trial was had in which the event occurred which brings the case to this Court.

That new trial again resulted in a conviction for second degree murder.

Petitioner was sentenced to life imprisonment.

That conviction was subsequently affirmed by the Oregon Supreme Court.

After that affirmance petitioner instituted pursuant to Oregon Statute a post-conviction hearing in which he alleged a number of things.

And in which he proved that in the words of the trial court and — or the hearing court I should say, I’m reading page 197 of the record.

That the bailiff of the State of Oregon said to three jurors, two or three jurors in effect, “Oh, that wicked fellow.

He is guilty”, and also said to them, “If you find him guilty and there’s anything wrong, the Supreme Court will correct it”.

Now in spite of that odd language, there was the finding made by the hearing court that those things were in fact said — that they were in fact said to two or three jurors.

Hugo L. Black:

Is this the bailiff who had him judicially charged?

John H. Schafer:

I was coming to that Your Honor, it is.

It is —

Hugo L. Black:

In your own words.

John H. Schafer:

It is that that bailiff had the jury in charge for an eight-day trial.

The hearing court went on to find, I think, he didn’t have to but he went on to find that these facts in fact had prejudice to the defendant.

And consistently with that finding, he ordered that the conviction be set aside and a new trial be granted.

The Oregon Supreme Court reversed that finding by the hearing court and affirmed the conviction and reversed the new trial ruling.

At that appeal, the state’s appeal on the — on that hearing court’s ruling, the federal question was explicitly raised.

There’s no contention made here that the petitioner did not raise the federal question in the Oregon Supreme Court.

The Oregon Supreme Court decision cannot be read in my judgment in any way other than to say in effect that petitioner was afforded a Fourteenth Amendment trial in spite of the fact that an officer of the State of Oregon in effect went into the jury room and told two or three jurors the defendant was guilty.

I don’t see how the Supreme Court of Oregon decisions to be interpreted in any way and on that interpretation I submit that citations of authority of this Court’s prior decisions is almost completely unnecessary.

If citation is authority, I should like to call to Your Honors attention the case of Turner versus Louisiana which you decided two terms ago.

And in Turner, you may recall that was an 8 to 1 decision with only Justice Clark dissenting.

In Turner, two sheriffs who had custody of the jury also testified for the prosecution.

And this Court held and on those facts and without more that that was the kind of situation which was so inherently prejudicial to the defendant that it was not consistent with the Fourteenth Amendment obligations on the states.

Potter Stewart:

Oh, those two sheriffs were potential prosecution witnesses perhaps you said that, right?

John H. Schafer:

I did say that Your Honor.

Yes, I did say it.

Potter Stewart:

Yes.

John H. Schafer:

They were prosecution witnesses and they were in custody of this — of the jury.

Potter Stewart:

That’s the — that’s a difference between that case and this one.

John H. Schafer:

That’s correct Your Honor.

Let me say however, in response to Mr. Chief Justice Warren’s question.

In theory, you had only a three-day trial which those bailiffs or sheriffs were in custody.

Here you have an eight-day trial and this bailiff was in constant and intimate contact with that jury for eight solid days.

The bailiff then said to the jurors “this defendant is guilty”.

Moreover, you have here flat proof of finding a fact made by the hearing court that prejudicial statements were made by the state officer and in turn you hadn’t — didn’t have any evidence of that at all.

And moreover I think I may fairly say that in this case the jurors deliberated for 26 hours and I think that can fairly be said to indicate some real questions about the ultimate question of guilt or innocence.

Now, the state’s arguments in support of this holding of the Oregon Supreme Court are I believe without any merit.

John H. Schafer:

The state first suggests that finality ought to be accorded to jury verdicts.

But there isn’t any rule in the State of Oregon which would enshrine jury verdicts to this extent.

The State versus Gardner decision of the Oregon Supreme Court a few terms ago very recently in Oregon, lays down the general rule that’s been applied in most jurisdictions that that evidence of this kind is admissible to impeach a jury verdict.

That evidence of the reasoning process, the thought process of jurors that’s not admissible.

But evidence of overt acts which can be proved or disproved by other witnesses, that kind of evidence is admissible.

That’s the law of Oregon.

Mr. Justice Brennan when he was on the New Jersey Supreme Court wrote a very detailed and considerate opinion in which basically he came to the same result to the State of New Jersey and that’s the general rule and some of the rule of Oregon.

And there isn’t the kind of rule of finality which the state would now have you believe.

And moreover mind you, in this case, the evidence of the bailiff statements did come from jurors.

Three jurors testified to the effect these statements were made.

But the state never suggested that that evidence because it came from jurors was inadmissible that these jurors were impeaching their verdict and they could not be heard to impeach their verdict.

That’s not the State Rule in Oregon.

The hearing court didn’t suggest that and the Oregon Supreme Court didn’t suggest that.

And moreover, I would say that I think it’s quite clear that if this were this rule of Oregon and if this rule were applied to foreclose proof and judicial actions thereon and it may — suggested by the State, they will be unconstitutionally applied.

And you couldn’t have a state —

William J. Brennan, Jr.:

Oh, I’m (Voice Overlap) —

John H. Schafer:

Excuse me, Your Honor.

William J. Brennan, Jr.:

I just wondered Mr. Schafer, rereading Mr. Justice 08.15 opinion.

Do I read this correctly as stating that the question for the Court’s decision based on this finding on the post-conviction hearing is whether within the State’s statute that that was conduct which deprived the petitioner a fair trial under the Constitutions of the State of Oregon or the Constitution of United States?

John H. Schafer:

That’s correct Your Honor.

William J. Brennan, Jr.:

And then went on simply to hold that the — and its judgment, this was not a denial of any federal constitutional right to a fair trial.

John H. Schafer:

That’s their decision Your Honor.

And now this —

William J. Brennan, Jr.:

And how do we get into admission of — in some of the issue?

John H. Schafer:

I would suggest myself to the arguments made by the State in its brief.

William J. Brennan, Jr.:

I see.

John H. Schafer:

The State in its brief in a way I’m not quite sure I can definitely state to the Court is suggesting two lines of argument and seems to combine the two into an ultimate conclusion.

In other words, it’s suggesting the argument of finality which I’ve just — been suggesting myself to.

And there is also just saying in effect which I want to come to in a second, but anyway there wasn’t any prejudice.

And then the State in his brief says, what the State — the Court in Oregon did was to balance these two, and say, we ought to have finality and it really wasn’t very much prejudice, so it’s all okay.

John H. Schafer:

And I’m just taking the two points made by the State in his brief and analyzing separately.

Now as they say, the finality argument I think this without a merit.

And the State as I have said goes on to say, “Well, anyway there wasn’t any prejudice.

There wasn’t any prejudice here to this defendant”.

And there are three things wrong with that argument.

The first is as I’ve said the hearing court found as in fact there was prejudice.

And the second thing wrong with it is, there is a long line of decisions of this Court making it perfectly clear we submit that in circumstances such as this, it isn’t necessary for a defendant to assume the burden of proving actual prejudice.

This Court’s decision starting with Tumey versus Ohio running through Turner and Louisiana including Irvin v. Dowd, Estes, Sheppard; all those cases established the proposition that where the circumstances are as here so inherently prejudicial.

It isn’t necessary in order to establish a constitutional right that the defendant assumed the burden of proving actual prejudice.

And finally on this argument of prejudice, I would say simply that the State’s argument proves too much.

It would have us prove that Mr. Parker was prejudiced.

Where the only way left to prove it would be to have a juror come in and say, ”Yes, I was in fact influenced by what that bailiff told me about his guilt”.

Well, that’s precisely the kind of testimony of course that almost everybody agrees.

The rules of — uniform rules of evidence and everybody else agrees.

That kind of evidence is not admissible.

So that for those reasons, I don’t plan to talk any longer unless there are questions, for those reasons, we believe the State’s arguments are without any merit.

And —

I would like to ask you a question.

John H. Schafer:

Yes, Mr. Justice Harlan.

This came to light after the trial?

John H. Schafer:

That’s correct.

After the jury brought in its verdict and on affidavits from jurors that presumably was secured at the instance of the defendant, I suppose?

John H. Schafer:

That’s correct.

Do we run into a State rule or that the juries are not allowed to impeach their verdicts?

John H. Schafer:

Well, that’s what the State tries to suggest Your Honor.

But —

That’s a pretty general rule, is it not?

John H. Schafer:

That’s a very general rule and it’s not the rule of Oregon because State versus Gardner which we’ve cited in our brief as I was saying a moment ago, State versus Gardner makes the pretty uniform distinction as to the kinds of proof that are admissible and those that are not, it’s our saying.

Proof from a juror as mental processes, he can’t come into a Court and say, “Gee, I read and understand the Court’s instructions and if I had I would have voted the other way”.

That’s pretty universally condemned.

John H. Schafer:

But it’s universally held, I believe that a juror can come into a Court and say, “We were offered bribes”, or “People said things to us”, or any of those other facts, overt facts, overt acts, proof of overt acts which can be proved or disproved to testimonial process.

Testimonial process, I should say.

Those kinds of facts are admissible and that’s the rule of the State of Oregon as I’ve stated in the State versus Gardner.

And that’s a rule that Mr. Justice Brennan as I said wrote a decision which nicely summarizes the history of this problem in the cases in — when he was on the Jersey Court.

Byron R. White:

What’s your (Voice Overlap) —

John H. Schafer:

And that’s the standard rule.

Byron R. White:

Is your claim that this conduct without any showing prejudice must be assumed to have affected the jurors?

John H. Schafer:

I — my — our claim is Your Honor that where the circumstances are so likely to cause prejudice, that it’s not necessary to prove actual prejudice.

Byron R. White:

You don’t claim for a moment that anybody — anyone but the two jurors heard it or heard these alleged statements, do you?

John H. Schafer:

The testimony of the hearing — post-conviction hearing Mr. Justice White was a little confused and there were three —

Byron R. White:

I know but three — two or three?

John H. Schafer:

There were two or three.

Byron R. White:

Two or three but no more —

John H. Schafer:

No more than that.

No.

Byron R. White:

And one of them was an alternate?

John H. Schafer:

Yes.

Well, two or three regulars probably heard it and one alternate.

Byron R. White:

Only a minute — I thought it was just the most of these two all — two regulars and one alternate.

John H. Schafer:

No, Mr. Justice White.

The testimony was — there was no finding made out of it but —

Byron R. White:

Well anyway, the same people who heard it were the ones who gave — who’ve impeached this verdict?

John H. Schafer:

That’s correct.

Byron R. White:

And that there’s no allegation what so — they’re the ones who were unhappy with the verdict in the first place?

John H. Schafer:

Well, we don’t know that.

They —

Byron R. White:

But there’s no suggestion in their statements or affidavits that they themselves were affected.

John H. Schafer:

No.

No, there’s was not.

Byron R. White:

I mean their testimony, their affidavits were available, and there may have been some — maybe some presumption or some inference like in Turner or something that when you got something like this you don’t really go much further.

Byron R. White:

And when the people who raised it and the only people who raised it, the only people who read it or heard it say, “This was a bad thing and don’t go on and say, it was so bad that I was affected”.

John H. Schafer:

Well —

Byron R. White:

If it — the ordinary rule would’ve apply, let’s assume one juror comes in and says, “Here’s what the bailiff told me”.

Then you asked the juror that, “Did it affect you?”

He says, “I should stay not.

I held out to the bitter end”.

And what — are you — then are you supposed to reverse?

John H. Schafer:

Well, two things if I might say that Mr. Justice White —

Byron R. White:

Well, how about that question?

John H. Schafer:

The first is your assumption of fact is not quite correct on the record but —

Byron R. White:

I didn’t say — I asked you a hypothetical.

John H. Schafer:

I’m sorry.

I understood you were addressing yourself to the record.

And the second thing as I would say that kind of evidence, yes I was affected, no I wasn’t affected.

That’s inadmissible.

I believe in every jurisdiction, if you — inadmissible under the uniform rules of evidence and perhaps the reason is —

Byron R. White:

So which way is — so that you can apply the Turner Rule or so that you shouldn’t apply it?

John H. Schafer:

So that a juror may not be allowed to impeach his own verdict —

Byron R. White:

Alright.

John H. Schafer:

— because a juror really is —

Byron R. White:

Well then you don’t apply the Turner Rule?

John H. Schafer:

I’m afraid I’m not — the Turner Rule to my mind means that you assume prejudice because these facts occurred.

Now, I’m asking you here to apply the Turner Rule to assume prejudice because three jurors heard an officer of the State say, “This man was guilty”.

Byron R. White:

And you apply the Turner Rule because the juror who brings it up shouldn’t be allowed to say, what’s the fact is?

John H. Schafer:

That’s right.

That’s right Your Honor.

Because who want —

Byron R. White:

Well, you — assume he would?

John H. Schafer:

Assume he was not?

Byron R. White:

He was.

Byron R. White:

You assume he was a juror.

John H. Schafer:

I assume he was?

Byron R. White:

He was prejudice, that’s what your argument.

We must assume that he was prejudice.

John H. Schafer:

That he was present?

Byron R. White:

Prejudiced.

John H. Schafer:

Prejudiced.

Byron R. White:

He was always available to say one way or another whether he was?

John H. Schafer:

That’s right.

I don’t think that we can hear him say whether he was prejudice or not.

I think for one thing no juror can adequately say.

Who — what — one of us can say, what influences us and what doesn’t.

And isn’t a natural tendency to say, I’m not influenced by things I hear.

I’ve got my own mouth — mind and I can make it up myself.

Byron R. White:

Now, these are — are they — you own unanimous verdicts in Oregon?

John H. Schafer:

No, they’re tended to.

As I understand Oregon law —

Byron R. White:

These particular two jurors who heard it voted against the conviction.

John H. Schafer:

No, that was unanimous verdict, I’m sorry.

Byron R. White:

What was unanimous?

John H. Schafer:

I’m sorry, unanimous verdict.

And I should — what I wanted to say a minute ago Mr. Justice White was that one of these jurors wasn’t able to say one way or the other, whether she had been prejudiced by what she heard.

That’s in the record.

William J. Brennan, Jr.:

Mr. Schafer, may I ask you.

I noticed that —

John H. Schafer:

Page 1 — excuse me.

Excuse me.

William J. Brennan, Jr.:

That the Court’s opinion, I’m looking at 13A of the record cites Ausplund, A-U-S-P-L-U-N-D, an Oregon decision and in its discussion of it concludes with the decision of the Court in effect was that such evidence would not even be received for the reason that it would destroy the finality with the jury’s verdict.

This gets back to what Mr. Justice Harlan was asking you earlier.

I think you answered Justice Harlan that this doesn’t suggest that this turned on a state ground namely that a juror would not be allowed by this kind of evidence to impeach his verdict.

William J. Brennan, Jr.:

Doesn’t ask this — the way the Court treats or response suggest that that if that may be the Oregon Rule?

John H. Schafer:

If I read — it — let me say this.

If it is the Oregon Rule that you cannot prove this kind of conduct for one reason or another then it seems to me that rule is unconstitutional, if it forecloses the kind of proof and the judicial action necessary to taking thereon as it indicated by this case?

If the Oregon law is, that this petitioner cannot prove that a state officer went in and told three jurors that he was guilty during the course of the trial then —

William J. Brennan, Jr.:

Well, I gather —

John H. Schafer:

— that rule is applied to be unconstitutional.

William J. Brennan, Jr.:

I gather since Ausplund was another case of a juror, whom — three jurors who made affidavits.

This means that a juror’s evidence to that effect would not be received in evidence.

Not that you can’t prove it otherwise, but you can’t prove it out of the mouths of the jurors who sat on the jury.

John H. Schafer:

Well Mr. Justice Brennan, no one — as I said nobody in this case ever said that this juror’s testimony wasn’t admissible.

It wasn’t —

William J. Brennan, Jr.:

I’m just wondering if this citation of Ausplund as they suggest that it wasn’t.

And that one ground of the reversal by the Supreme Court was that that kind of evidence could not be received.

John H. Schafer:

Well, I didn’t understand.

I only have a fair reading of the decision indicates that and I must say that State versus Gardner which comes subsequent to the Ausplund case.

William J. Brennan, Jr.:

Yes.

John H. Schafer:

I think it is really on all fours from your decision Mr. Justice Brennan in the State versus (Inaudible) case.

William J. Brennan, Jr.:

And you said the (Voice Overlap) — yes.

John H. Schafer:

And that indicates I think without any doubt whatever that the Oregon Rule is that this kind of evidence is admissible through jurors or otherwise.

And however you read Ausplund; I think it — if it says that it’s overruled by Gardner.

And I don’t think that this Oregon Court in this case is saying, “We’ve got adequate state grounds on which to foreclose, on which — upon which we can foreclose”.

And otherwise a valid constitutional claim.

William J. Brennan, Jr.:

When you say, what follow supports you.

John H. Schafer:

Thank you very much Your Honor.

Earl Warren:

Mr. Blunt.

David H. Blunt:

Mr. Chief Justice, may it please the Court.

In listening to the counsel’s statement of facts, I believe it’d be helpful with the Court to have — give it a little more background as to the facts in this case.

Mr. Parker was tried about eight years ago on the charge of first degree murder and the jury came back with a verdict of second degree.

Now, this was appealed, reversed.

Second trial was held in 1961.

David H. Blunt:

The trial began on Monday April 24th, 1961.

It recessed for the weekend on Saturday and Sunday and it came back the following week.

And the jury returned its verdict on May 3rd, 1961 which was a Wednesday.

Now, the second trial was before a different judge, a different bailiff, and of course a different jury.

Now, he was convicted the second time of second degree murder.

He moved for a new trial on the basis of a failure of the prosecution who approved the venue in the county.

The trial court denied the motion and sentenced Mr. Parker to life imprisonment in the Oregon State Penitentiary.

He appealed again and the basis of the appeal was the failure of the trial court to bring in a new trial on the failure to approve venue again.

And also a — an objection to an opening statement of District Attorney alluding to a tape recording which are not later allowed in evidence.

Now, this time the Oregon Supreme Court affirmed the conviction on October 8th, 1963.

Now at that time, Mr. Parker and his wife, the petitioner in this case, petitioner Mr. Parker embarked upon a campaign to get another trial.

Mr. Parker wrote letters to the jurors.

He had his wife contact the jurors on the jury list and from the first juror call found the names of other jurors that were holdouts in this 26-hour deliberation.

Now, Mr. Parker prepared a tape recording.

He had his wife invite three of these jurors over to her home.

In fact, she invited everybody over to her home but only three of them came to the home to listen to this tape recording.

They had a discussion of the matter and went down to see an attorney that was hred by the petitioner’s wife and talk it over with him.

He prepared the affidavits and on that basis he submitted a post-conviction petition under the Oregon Post-Conviction Hearing Act in which they alleged a wide variety of misconduct on the part of the jurors, the other jurors.

They said some of them were sleeping.

He said, the jury room door was left open and the jurors could hear conversations in the hallway.

They said that the remarks were made.

Now, the post-conviction hearing had all the jurors testified including the bailiffs and the two alternate jurors.

Now the — and there’re still a little confusion here as to whether three jurors heard these two remarks, there were two remarks, one was, “Oh, that wicked fellow, he is surely guilty”.

The other one was, “If there’s anything wrong with your decision the Supreme Court of Oregon will correct it”.

Now as to the remark by the bailiff that the petitioner was guilty, this was made to the alternate juror, a woman, and was overheard by a regular juror from the record indicates that she was the longest holdout.

The other remark was supposedly made to a man juror with all the men on the jury testified post-conviction, they didn’t hear the other remark.

This remark supposedly was overheard by another woman juror and the other woman juror who had been the principal holdout.

Now the remarks were made during a walk that the jurors took on a Sunday.

They were out getting some fresh air and the woman alternate juror expressed concern that the petitioner’s case, Mr. Parker is being rerouted.

(Inaudible) concern about?

David H. Blunt:

That the petitioner was being rerouted that the — there was a feeling, general feeling amongst the jurors that the — they’re finding him guilty and the State had not proved this case at least in her own mind beyond a reasonable doubt.

Now, the post-conviction hearing court found as a matter of fact that the remarks have been made.

We don’t question this.

This is a finding of fact.

Supposedly, the most damaging remark is to the effect that the petitioner is guilty.

Now, the post-conviction trial court found also that if these remarks have been brought to the attention of the trial judge he would on his own motion have allowed a new trial.

They would have ordered a new trial.

Petitioner would not have had even make a motion to this effect.

This is the law of Oregon, there’s no question of that.

On — if it’s brought up timely or even on direct appeal why this would — would grant the man relief.

But this is something that happened two and a half years later.

He — Mr. Parker chose to wait until he lost his second appeal.

Then he goes back and tried by this route to get a third trial.

Now, the Post-Conviction Hearing Act in Oregon requires a higher standard than the case law regarding motions for new trial that requires a substantial denial of constitutional right.

There are reasons for this.

Counsel calls it finality perhaps that’s the best word we can find this time.

He states in his argument that in this Turner versus Louisiana is not a stronger case as Mr. Parker has here.

Well, we take exception to this as Mr. Justice Potter pointed out the two bailiffs in that cases were also the principal prosecution witnesses.

And they were with the jurors for over three days in that case and the — this Court rightfully held that in a situation like that you don’t have to show prejudices.

No question to that.

He talked about the (Inaudible)?

David H. Blunt:

No, Your Honor.

I’m speaking in terms into the litigation.

That’s correct Your Honor.

Abe Fortas:

I’m a — excuse me sir.

But quite — I don’t understand something here.

So I understand that the post-conviction trial court held that a — that the petitioner was entitled to a new trial in regards that these statements had been made and that they were prejudicial.

Is that right?

David H. Blunt:

That’s correct Your Honor.

Yes.

Abe Fortas:

Then the Supreme Court of Oregon reversed on the grounds that the trial court — post-conviction trial court had not correctly applied the post-conviction standards.

David H. Blunt:

That’s correct Your Honor.

Abe Fortas:

Now, what would be the basis for setting aside the verdict for granting a new trial if the same situation had been called to the attention of the trial judge before sentence?

David H. Blunt:

Well, Your Honor, I don’t think there’d be any questions but that it would have gotten a new trial and (Voice Overlap) —

Abe Fortas:

On what basis?

David H. Blunt:

Well, the general case law is that —

Abe Fortas:

Yes.

But what’s the legal concept?

It’s a denial of the fair trial, isn’t it?

That is even (Voice Overlap) —

David H. Blunt:

Well, we have a statute so Your Honor that forbids this type of convict expressly.

Abe Fortas:

Yes.

But I say he would’ve gotten a — are you saying that it’s purely statutory and not constitutional?

Or isn’t that —

David H. Blunt:

I’m not quite sure Mr. Justice Fortas as to whether it would be purely constitutional or purely statutory or perhaps (Voice Overlap) —

Abe Fortas:

Well, my point is that I turn to see the — how — to raising a question as to whether there is really a difference between the rule that would apply in the course of the trial before a sentence.

On the one hand on the post-conviction rule, in your brief on page 3 you said that the Oregon statute and subsection (a) of the post-conviction statute allows relief to be granted when there’s a substantial denial of constitutional rights.

Is that right?

David H. Blunt:

Yes, Your Honor.

However, the — it’s my opinion Your Honor that a prejudice or substantial denial is a relative thing.

Certainly, many things that affect interstate commerce without —

Abe Fortas:

You mean a substantial denial of constitutional right to a fair trial means one thing post-conviction and another thing while the trial is still in process?

David H. Blunt:

Yes, Your Honor.

On collateral facts, where you hold a higher standard, yes sir.

Earl Warren:

Well, how and when could this defendant have raised this question so as to make it meaningful?

David H. Blunt:

Well, Your Honor, the — a matter of fact the — this one juror that was a holdout went to the trial judge after the trial was over and she was conscience stricken as I understand this happens frequently in this type of a trial after a juror go back and talk to the judge and say, “I don’t know if I did the right thing or not in giving up — giving in to the majority here”.

She had at that time an opportunity to tell the judge of these remarks.

If in fact she had been very much impressed by these things but she didn’t do it.

She didn’t think about these things for two and a half years later at the insistence of the petitioner here and his wife.

Earl Warren:

Well, but how — I say at some point, if this is a violation of his constitutional rights to have a fair trial there must have been sometime at which the defendant could have raised that point before the courts, in order to make his right effective.

Earl Warren:

Now, when and how could he have done that in this case?

David H. Blunt:

Well, he could have moved for a new trial Your Honor any time up to the time the decision affirming his conviction has been rendered (Voice Overlap) —

Earl Warren:

Yes, what if he didn’t know about it how could he do it?

David H. Blunt:

Well, Your Honor that does post a problem here then — these were the — this decision of the Oregon Supreme Court in the balancing of the two doctrines must be made.

Counsel has it — ruled it sort of a balance, he spoke off.

Earl Warren:

Valid says what?

David H. Blunt:

Well, the equities as giving finality to a verdict as against the constitutional right to a fair trial.

Earl Warren:

Without regard to his right to raise it at all?

David H. Blunt:

Well, Your Honor, I think what the state is saying here is that he can raise it up to a certain time.

Earl Warren:

When is that time?

That’s what I want to know?

David H. Blunt:

Well, I would say they would probably rely, Your Honor at the — up to the time the decision affirming his conviction has been handed down.

Earl Warren:

Does the statute say so?

David H. Blunt:

No, Your Honor.

It does not.

Earl Warren:

Does your case law say so?

David H. Blunt:

It is not clear on that exact point Your Honor.

Earl Warren:

Is there any case in Oregon that says that he does have this right to do it up to that time?

David H. Blunt:

I don’t believe so Your Honor that if any case spells it out.

Earl Warren:

When — how — how is it?

Could you tell us — he can do it?

David H. Blunt:

This pure conjecture of my parts Your Honor —

Earl Warren:

Well then, but certainly you wouldn’t expect him to do that if he didn’t know about it up to that time, would you?

David H. Blunt:

No.

No in fairness Your Honor, I can’t say that.

Earl Warren:

Is there anything in the findings of the trial court here that to the effect that he did know but didn’t exercise his right speedily?

David H. Blunt:

Not directly, Your Honor.

Only through the record itself in this respect —

Earl Warren:

So they talked about the findings of the Court.

David H. Blunt:

No, Your Honor.

Earl Warren:

So then we can’t charge him with any latches, can we?

David H. Blunt:

I don’t believe so Your Honor as such.

I believe all the points have been covered.

Thank you.

Earl Warren:

Thank you.

Mr. Schafer did you have anything more?

John H. Schafer:

I would just say in response to Your Honor, Chief Justice to the last question on page 204 of the record.

There appears a statement by the Supreme Court of Oregon that it is assuming for the purposes of its decision that the petitioner did raise the issue of misconduct as soon as it could — as soon as he could.