Smith v. Phillips – Oral Argument – November 09, 1981

Media for Smith v. Phillips

Audio Transcription for Opinion Announcement – January 25, 1982 in Smith v. Phillips

del

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.

We’ll hear arguments next in Smith against Phillips.

Mr. Pitler, you may proceed, I think, whenever you’re ready.

Robert M. Pitler:

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

In this case, federal habeas corpus has been granted to a state prisoner and causes a so-called reprehensible prosecutorial error even though an — an analysis of the case demonstrates that this error is not prejudicially accused.

Thus, the issue that is presented here is whether this prosecutorial conduct, in fact, prejudicially accused and if did not prejudice him, whether a federal court to express disapproval of that conduct and grant habeas corpus relief to a state prisoner.

Also presented in this case is whether this Court should overrule long and well-settled precedents.

These precedents establish that the right to an impartial jury guaranteed by the Constitution is one which only requires the juries remain free from actual bias.

The respondent wants this Court to replace that principle with one which requires removing of a sitting juror upon facts showing — upon facts which might render a hypothetical juror biased even though it was shown that the particular jury in the case remained actually impartial.

William H. Rehnquist:

Would you say that the Court of Appeals for the Second Circuit affirmed Judge Pierce’s grant of habeas corpus in the District Court on the same grounds?

Robert M. Pitler:

No, completely — I would think it’s a completely different ground.

To place the — that decision in context, I would like to go back to the state proceedings and then just bring it to the Second Circuit decision and Judge Pierce’s decision.

But let me — let me answer your question directly, Judge Pierce used the implied bias standard, the Circuit Court, I think, without regard to prejudice at all just said the prosecutor’s error, there was prosecutorial error here, consequently there must be a reversal.

They didn’t look to imply bias at all.

Byron R. White:

You mean, the Court of Appeals, in fact took a per se standard?

Robert M. Pitler:

Yes, I believe they did.

Byron R. White:

And you say Judge Pierce implied bias was not the same?

You think it’s different?

Robert M. Pitler:

I — I think it is different.

This case arose out of a — a killing on Christmas Eve in 1968 when they have to unsuccessfully trying to extort money from a person, respondent William Phillips, then a New York City police officer, killed that person whom he was extorting, or sought to extort killed another eyewitness and sought to kill even — killed an eyewitness and sought to kill a second eyewitness, that person survived.

Three years later in 1971, respondent was indicted and his first trial in 1972 ended in a mistrial because of a hung jury.

In 1974, he was brought to trial again and convicted.

During the voir dire at the second trial, the defense found one John Dana Smith acceptable as a juror.

Smith was a Vietnam veteran who’s about to graduate Columbia College and he was accepted by the defense even though he worked as a security guard or a security position in Bloomingdale’s and was then actively seeking a law enforcement job and at the time, had an application pending with the Federal Law Enforcement Agency.

Subsequently during trial, Smith was having lunch with a friend, a court officer in a court that had nothing to do with this case, and they’re sitting and talking, and the court officer who knew Smith’s wife from John Jay College said, “I am applying for a job in the District Attorney’s Office as an investigator, there may be some jobs there that you might be interested in.”

And so they asked about the jobs, they didn’t know much about it but Smith said, “Well, how should I apply?”

And he says, “Well, write a resume and send a letter to the District Attorney’s Officer and I’ll find out more details on how to apply for you.”

And that’s what Smith did a week later.

He sent a letter, saying, “I’m — I hear you have positions open in a Major Felony Investigating Unit, I am interested,” signed John Dana Smith and sent his resume.

Robert M. Pitler:

He didn’t mention at all anything about him being a juror.

Byron R. White:

When — when did the trial prosecutor learned of that letter?

Robert M. Pitler:

In — in the middle of the trial.

Byron R. White:

In the middle of the trial.

Robert M. Pitler:

That is correct.

Byron R. White:

And at that time, do I understand that there were several alternates?

Robert M. Pitler:

Yes, there were.

Byron R. White:

And have this been brought to the attention under the trial judge?

Had the trial prosecutor told him about it?

I take that an alternate could have been substituted.

Robert M. Pitler:

It would have been up to the discretion of a —

Byron R. White:

Whether he would or not.

Robert M. Pitler:

— trial judge.

Byron R. White:

No, but he might have.

Robert M. Pitler:

Yes, he could have.

Thurgood Marshall:

There were four alternates.

Robert M. Pitler:

I believe that is correct.

Byron R. White:

Well, isn’t that really the key fact in this whole case?

Robert M. Pitler:

Well, if you — it seems to me that under New York — if you look under New York law at the time, even today, the judge would have discretion provided he found the juror actually biased, will be actually influence, and that discretion is — is virtually unreviewable as it is in federal court.

William J. Brennan, Jr.:

You didn’t say he had discretion if there had been actual bias.

Robert M. Pitler:

No, no — if he — no, but in other words, in making that determination, it would give great weight to him if you found actual —

William J. Brennan, Jr.:

But we found actual bias, you would have been (Voice Overlap)

Robert M. Pitler:

That is correct, yes.

You would have to exclude the juror.

William H. Rehnquist:

But then — then he would have risk, I suppose, if the defense hadn’t consented to it a charge of double jeopardy if he tried to go ahead with the trial.

Robert M. Pitler:

The — the exact scope of the Double Jeopardy Clause in that — in that context, I’m not sure of whether — whether it would bar a subsequent trial.

Thurgood Marshall:

Do you mean that in New York, if a juror is excused and replaced by an alternate juror, that gives rise to a double jeopardy point?

Robert M. Pitler:

No, I do not believe — I don’t think it does.

Thurgood Marshall:

Well, if the judge is given this information at that time and he didn’t find that this man was bias, he could still have removed him, am I right?

Robert M. Pitler:

I –I think a reading of — of the State, if he found that he was not bias, I don’t think the judge could have removed him under New York law at that time.

Thurgood Marshall:

He had to be — he was actual bias?

Robert M. Pitler:

I believe that’s correct under the law at that time.

Thurgood Marshall:

You give me that case, I’d like to see it.

Robert M. Pitler:

I believe — I believe that will be the way I would read CPL Sections 270.35.

Thurgood Marshall:

Which one?

Robert M. Pitler:

Criminal Procedure Law Section 270.35(2) which is repeated in — on page 28 of our brief.

Byron R. White:

Now, I find that the Second Circuit agrees thought that is a matter of a federal Constitution that — that situation does not require a determination of actual bias, isn’t that right?

Robert M. Pitler:

It’s not clear what —

Byron R. White:

Well, in any event, surely, the Second Circuit did not follow as you have now described it to New York law, did it?

Robert M. Pitler:

No, they don’t really discuss it and say, it’s good light, we hear the judge would have removed him and consequently, the defendant was denied — the respondent was denied a fair trial, that’s all it said.

Byron R. White:

But how do you understand that?

What do you — how does that differ do you think if he does if you say —

Robert M. Pitler:

Well, I think this —

Byron R. White:

— under New York?

Robert M. Pitler:

At least under New York law, they would be suggesting there’s a good chance that judge would have found him actual bias, they’ll remove him.

Byron R. White:

Is that what you think they said?

Robert M. Pitler:

Well, if they were saying that he would exercise a discretion, then I don’t think he has to remove the juror then, I don’t — I don’t think that they’ll —

Byron R. White:

Well, surely, I thought there was a difference between how you construe the New York rule and the way the Second Circuit looked at it, isn’t it?

Robert M. Pitler:

I’m not sure I understand you correctly there sir.

Byron R. White:

Well, surely, the standard applied by the Second Circuit is different from the one that you suggest as the New York rule.

Robert M. Pitler:

I don’t think they applied any standard at all.

I think what they’ve said is the prosecutor failed to disclose if this juror applied for a job with his office.

The defendant was entitled to that disclosure and wherefore, we reverse.

They say it in the opinion, we simply — they are holding —

Byron R. White:

Well, they say, and we reverse because we think that fact circumstance establishes a violation to the federal constitution.

Robert M. Pitler:

Well, if — yes.

And if they’re saying that, if you — if you’re suggesting to me that they are saying that that jury in — is in fact bias.

Byron R. White:

I don’t know that they even trust him, whether he was in fact biased.

Robert M. Pitler:

Well, but if he — if he is not — if he is not bias, it’s — it’s hard for me to see what constitute — constitutional right would be violated by the prosecutor.

Byron R. White:

Well, they say just as a matter of per se, that conduct per se was a violation of the federal constitution.

Robert M. Pitler:

The application for the job.

Byron R. White:

And know the knowledge of the prosecutor.

Robert M. Pitler:

Well — but —

Byron R. White:

And — and his failure to disclose it for the trial judge.

Robert M. Pitler:

But unless the prosecutor’s failure prejudices the defendant in some way.

I think this Court has made clear that you do not get a reversal.

I mean the Agurs case stands to that proposition.

Byron R. White:

Well, the Court of Appeals said you do get a reversal.

Robert M. Pitler:

That was why — that’s why they’re wrong.

Byron R. White:

That’s why the case is here.

Robert M. Pitler:

I believe that is why the case is here.

Warren E. Burger:

Mr. Pitler — (Voice Overlap) –

Robert M. Pitler:

Thank you Justice White.

Warren E. Burger:

— as the Second Circuit holding amount to reading the word “may” in 270.352 where the provision is the Court may, in the circumstances, may if an alternate juror is available to discharge the juror.

It is the Second Circuit in your view reading that as the Court must.

Robert M. Pitler:

Well, this is really —

Warren E. Burger:

That’s exactly the Second Circuit holding.

Robert M. Pitler:

Yes, but I think they — if the judge — the answer to your question is yes.

But if the judge in fact found the juror bias, I think the Constitution will require him to remove the juror.

But that’s not what the Second Circuit’s holding is all about.

I think they didn’t care about whether this juror was bias actually or implied.

They say the prosecutor breached the duty and that ends our inquiry.

They don’t care about whether or not, you know, what would follow from that and in the — in their holding of the under opinion, we simply hold, when someone has applied for a job with a prosecutor’s office, he must dispose it.

That’s the holding of the Second Circuit.

William H. Rehnquist:

Well, Mr. Pitler, in the case of the application of 270.35, if the judge determines somewhere in the course of the trial that a juror is actually bias and says, “I’m going to remove this juror and substitute an alternate.”

Does that require to the consent of the defendant?

Robert M. Pitler:

No — no it would not.

Although it’s a practical matter if the defendant objected, it would seem to me he’d probably be waiving any right that he might serve on.

And if I were the trial judge, and I said to the defendant that I think this juror is actually bias, the defense says no, keep him on, it’s practical that I leave the juror on, it’s the defendant’s right.(Voice Overlap) unless it was prejudice against the prosecutor —

William H. Rehnquist:

Well, but then — then, wouldn’t the defendant have a right to argue on appeal under New York Courts that the judge improperly applied the statute?

Robert M. Pitler:

Not when if the defendant consented.

I think he would be out of court in the New York Courts, if the defendant consented.

Certainly he would be out of court in — in the Court of Appeals, and I don’t think any Appellate Division would exercise discretion in that case to reverse.

But what I — assuming that — I know this is going to be hard, in some so — if we assume the prosecutor didn’t find out about it until after trial, the juror’s application.

What this Court has held the remedy in that situation to be is you have a post-trial hearing to determine the bias, or lack of bias of the juror.

That’s what this Court has held.

Now, unless we’re going to punish the prosecutor and — and that hearing is adequate to protect the defendant’s Constitutional right to a jury trial.

Unless you’re going to say, because of the prosecutorial misconduct, that procedure is not adequate, I mean that’s the only way you could say that.

And in fact, what you’re saying is you’re going to punish the State for the prosecutor’s misconduct.

Even though there’s a procedure available, which can determine whether or not that juror was bias.

And we don’t think the law requires such a holding by this Court.

Now in Agurs, you have — the Court found that the prejudice, and Agurs is a case, of course, dealing with the guilt or innocence context where the prosecutor fails to disclose really exculpatory evidence or — or doesn’t respond to a request, well that’s purge of testimony coming to trial.

And in that context, this Court held that — no, it’s not a rule of automatic reversal, you have to look to see whether or not the defendant was prejudiced and they built in to the — into those three standards of prejudice to rule effect.

They were saying the same thing — a similar requirement through here but the nature of the right is different.

There, you’re dealing with a right to submit evidence to the jury, and the only remedy that you could have, once you found a violation — a prosecutor’s breach of duty, the only appropriate remedy is then to submit the case to a new jury.

When you’re dealing with the impartiality of a juror, however, where the judge was going to hold it — with hold an inquiry during trial, how is a defendant prejudiced if the prosecutor fails to hold with turnover information if the hearing is held after trial.

That hearing has been recognized as adequate.

In other words, I think it’s — what Justice White said in the Morrison case.

You’ve got to tailor the remedy to the conduct involved.

Here, the conduct involved was — the — the right to an impartial jury, and then the prosecutor effectively — appropriate remedy under the Remmer case is to have the pretrial hearing.

Now, the Court in Agurs said, “Well, we have to take into consideration somehow that the prosecutor failed to disclose.”

And — and in Agurs, what you did — what you said, “Well, we’ll — we won’t follow the ordinary, newly discovered evidence rule which requires the defendant to prove that he was — approved by preponderance of the evidence and the result would have been different.”

What the State judge did here, is he required the prosecutor to establish beyond the reasonable doubt the juror was impartial.

Sandra Day O’Connor:

Mr. Pitler, do you think there was role for a rule of implied bias under some circumstances?

Robert M. Pitler:

Perhaps, yes, but not in the circumstances of this case.

In — in the United States versus Wood which we cite in our brief.

There was a case where an argument that government employees, should automatically be impliedly bias in — in any — in any criminal prosecution the Federal Government brought.

And in that case held, there would be no requirement of implied bias in that situation, and they went further I think, because they talked about particular circumstances, and they raise a situation.

What about a situation where a juror has — works, a potential works to an agency very interested in the case or interested in the case.

And the Court said there, an inquiry about actual bias is more than enough to deal with that situation.

Robert M. Pitler:

Whether or not the situation is that one could conjure up where you would want to imply — find someone impliedly biased, is the question is not before the Court today.

But certainly on the facts of this case, I think the Wood case would control and at least where a juror has only applied for his job, there should be no rule of implied bias.

Thurgood Marshall:

But didn’t the juror — I think the (Inaudible) didn’t he mention it to the prosecutor?

Robert M. Pitler:

No, Your Honor.

Thurgood Marshall:

But how the prosecutor find out about this?

Robert M. Pitler:

The way the prosecutor found out is that the — the letter eventually got to the person in charge of hiring.

Thurgood Marshall:

Yes.

Robert M. Pitler:

And — and a — a friend of the juror mentioned to an Assistant District Attorney that this person was on the jury.

The jury himself never mentioned it, in deed —

Thurgood Marshall:

But his friend did?

Robert M. Pitler:

His friend did, there’s a finding both in the state court —

Thurgood Marshall:

He was kind of involved wasn’t it?

Robert M. Pitler:

The juror — no sir, the friend took in interest, but the juror —

Thurgood Marshall:

Didn’t you just say he told a friend?

Where they meeting everyday or something?

Robert M. Pitler:

No, absolutely not, this is a friend by the name of Fontaine, it’s the gentleman that —

Thurgood Marshall:

I don’t care a word about the name.

But the — the juror listened to a case in the same time, he’s carrying on conversation with — what’s this man name, Fontaine, that he knows he’s talking to the —

Robert M. Pitler:

No —

Thurgood Marshall:

— while the trial is going on.

Robert M. Pitler:

Your Honor, there is nothing in the record.

Indeed, there’s a find to the contrary that the juror knew anything about Fontaine talking to anybody about the job.

John Paul Stevens:

Mr. Pitler, right on that point, who mailed the letter into the office?

Robert M. Pitler:

Mr. Fontaine.

John Paul Stevens:

How do you explain that?

Robert M. Pitler:

What happened — what happened was that the juror brought the letter to a luncheon meeting, and said, “Here it is, submit mine when you submit yours.”

It’s all that —

John Paul Stevens:

Rather unusual way to apply for a job, isn’t it?

Robert M. Pitler:

No, I — I don’t think so.If you — I mean, just give him the letter —

John Paul Stevens:

He had a man working for the prosecutor and mail the letter to the prosecutor.

Robert M. Pitler:

No — no, Your Honor.

John Paul Stevens:

Didn’t Fontaine work in the —

Robert M. Pitler:

No, he did not.

John Paul Stevens:

He worked in the District Attorney’s office?

Robert M. Pitler:

No, he did not.

He — he was a Court Officer in — on Rainey Park in New York City.

He was not —

John Paul Stevens:

Oh, I misunderstood.

Robert M. Pitler:

He do not work to the prosecutor —

William H. Rehnquist:

And was he applying for a job too —

Robert M. Pitler:

He was.

William H. Rehnquist:

— in the same office?

Robert M. Pitler:

Yes.

He was applying for a job and the juror said, “Look, while — when you submit yours, i’ll submit mine.”

And when we went to submit his, they said, “You’re not — that’s not your application.”

He said, “No, we’ll only take yours.

So you personally, why don’t you just put that one in the mail?”

And that’s what he did.He did not work for the prosecutor’s office at all.

John Paul Stevens:

But he worked for the State?

Robert M. Pitler:

He worked — he worked as a court officer for the State.

John Paul Stevens:

And did he have — did Fontaine have further conversation with people under the prosecutor’s office?

Robert M. Pitler:

Yes, he had at least one with Assistant District Attorney where he said, “Listen, you know my friend applied for a — a job, he is a juror.

Do you think there’s anything wrong about that?”

I mean that was when the Assistant District Attorney said, “Look, we’re not going to process that application.”

And they — and he went back and told the person in charge of hiring and that person put a hold on the application.

John Paul Stevens:

And who told the trial — trial prosecutor?

Robert M. Pitler:

The — the Assistant District Attorney in charged of hiring for that position, Ms. Sudolnik.

Thurgood Marshall:

And that stage, the juror thought that possibly it might be a problem?

Robert M. Pitler:

No.

Thurgood Marshall:

Well, I misunderstood you.

Thurgood Marshall:

Why did he ask him to mention it to the District Attorney’s office?

Robert M. Pitler:

No, he didn’t ask him to mention it.

He just asked him to submit the application with his because he’s applying in the same time.

Thurgood Marshall:

And didn’t he say you could find out if there was any problem?

Robert M. Pitler:

No, there was nothing — no — nothing discussion on any problem or anything.

As a matter of fact, there’s a finding both by the District Court and the state court judge that the juror was totally unaware and did not authorize anything that was going on.

And the juror testified which was credited by the State judge that he saw absolutely no connection with — with his job application and the service on the jury, he did not know anything that anybody, you know was talking to anyone.

You can, you know — you can look at facts when you put one interpretation and another.

Thurgood Marshall:

Well, why didn’t the prosecutor at that stage said there was no problem mentioned?

Robert M. Pitler:

Prosecutor — the prosecutor was wrong not to do that, we don’t take issue with that, and that is not the — yes sir.

Harry A. Blackmun:

This is irrelevant, but your statute is not the most artfully drawn isn’t it?

Robert M. Pitler:

No, that statute was subsequent.

What happened with that statute is subsequently amended so reply — requiring must — you must move the juror when the — when he finds substantial misconduct (Inaudible)

Harry A. Blackmun:

I’m just looking at the last sentence.

If, and this is not this case, if no alternate juror is available, such trial juror may not be discharged, and the trial must proceed and yet he might have been found to be grossly unqualified to serve.

Robert M. Pitler:

That statute has been subsequently amended to require that — that a mistrial be declared Justice Blackmun.

Harry A. Blackmun:

It’s a good thing that case is —

Robert M. Pitler:

It — certainly is.

But let’s — you know the Court hasn’t asked me about why is this — why isn’t this hearing — why is this hearing adequate?

Now the Remmer case of course held these post-trial hearings are adequate and they’re adequate in federal court and adequate in state court.

And it seems to me, unless you want to say that you have a per se rule because the prosecutor failed to disclose it, that this hearing should be held adequate on federal habeas corpus review of a state conviction.

It seems to me that it might be beneficial for the Court for me to — to tell you about Judge Birns’ finding, these are some concern here.

And here, Judge Birns found that the juror was honest but naive.

He was naive because, you know, he didn’t realize that someone would see a connection.

He saw no connection between applying for a job.

And — and the judge found that he was under no influence during the trial.

On the voir dire sense, this is not like a juror coming out from nowhere and saying, “I want something in exchange for my participation.”

And the jury on voir dire he indicated that he was interested in law enforcement.

And he applied well into trial, when he just met a friend at lunch.

And he did nothing else with respect to this application, he merely sent it.

Robert M. Pitler:

That’s what the findings of the state court are and — and despite respondent’s attempt to change that, those are the facts.

He didn’t do anything Justice Marshall.

He merely sent the letter.

It was an innocent act by a naive young man, and I don’t think that that calls for kind of habeas corpus review by a federal court of a state conviction.

The state court held the hearing of this Court, requires all the time in federal cases.

Why then, merely because of the prosecutor’s misconduct is that hearing going to be held inadequate.

Return to your question of implied bias in — in Frazier versus the United States.

And — and of course the Wood case says that you have a right to an impartial jury, and with that Constitutional right would say — it means a jury that’s free from actual bias.

And if the jury is free from actual bias, that really, generally ends the inquiry.

In Woods —

John Paul Stevens:

Mr. Pitler, under that rule in New York, suppose you have a juror who had been the victim of armed robbery and then he was called as juror on an armed robbery case.

He did disclose the fact that he had been himself a victim of an armed robbery.

Would your procedure acquire a determination of actual bias in that case?

No implied bias?

Robert M. Pitler:

He — he deliberately failed to disclose?

John Paul Stevens:

He just didn’t disclose it, that’s right.

Robert M. Pitler:

And there was no question asked?

John Paul Stevens:

No questions asked.

Robert M. Pitler:

And when is the discovery made?

John Paul Stevens:

After the trial.

Robert M. Pitler:

I think under the New York —

John Paul Stevens:

It’s a conviction.

Robert M. Pitler:

— under the New York statute, you would have to have a showing of actual bias.

John Paul Stevens:

You still would or would not?

Robert M. Pitler:

You would.

I believe — I believe that’s a law on New York.

John Paul Stevens:

Do you think the — do you think the Court of Appeals would have come out the same way if the prosecutor never known about this until after the trial?

Suppose no one — no one — none of the — now of the prosecuting staff, anything about this said until after the trial —

Robert M. Pitler:

No, I don’t think the Court of Appeals would have come — I doubt very much the Court of Appeals would have come out this way.

John Paul Stevens:

Well, why not?

Robert M. Pitler:

Because I think they focus —

John Paul Stevens:

The possibility of bias was —

Robert M. Pitler:

I think they focused entirely on the prosecutor’s misconduct and that’s what they were concern.

Warren E. Burger:

Didn’t they make that pretty plain in the closing pages of their opinion.

Robert M. Pitler:

Yes, (Voice Overlap) I mean that’s — that’s exactly what they did.

I don’t think they would have — they may have had a little bit more difficulty.

I can tell you during the oral argument, before the Second Circuit which I did, that’s what Justice Nicholson was concerned about.

He wrote the opinion from the very start.

The prosecutor’s conduct — the prosecutor’s conduct, and that’s exactly how that opinion is written.

Byron R. White:

But in terms of the possibility of bias, it doesn’t make a whole lot of difference whether the prosecutor knew about it or not.

Robert M. Pitler:

That’s — that’s exactly our point Justice White.

That — and in that context, the post-trial hearing under the Remmer case in the federal court would be more than adequate to deal with the situation.

And consequently, you should be more than adequate to deal with the situation here.

In the Second Circuit, the opinion can only be rather saying, “We don’t like what the prosecutor did.”

And as — I might say, if the juror, if the procedure is adequate, and the juror was found to be actually impartial, I don’t see how the defendant’s conviction has been obtained in violation of the Constitution.

Byron R. White:

Would you think that the Second Circuit would come out the same way if the prosecutors had found out about it or told the judge about it, the judge that held the hearing at that very moment and come out just as he did in the hearing here, and then refused to remove the juror.

Do you think then the Second Circuit would not — would — would not have set the conviction aside?

Robert M. Pitler:

I — I do not think they would have.

I think, again a fair — by way of emphasis, a fair reading of their opinion is they are concerned with prosecutorial misconduct, what they do is prosecutorial misconduct.

Byron R. White:

So you would —

Thurgood Marshall:

You keep talking about what the Second Circuit might do, why don’t you ask me something?

I’m mean — (Inaudible)

Byron R. White:

Oh well I — can it be true about the Second Circuit.

Robert M. Pitler:

Well — sometimes — sometimes you can take a look at past opinions and precedents and predict what a court is going to do, not all the time.

Thurgood Marshall:

Maybe I’ve been wrong?

Robert M. Pitler:

Yes sir.

Thurgood Marshall:

Okay.

Robert M. Pitler:

Although I would — I would say with all due respect, I am right more often than I’m wrong although sometimes it’s a closed question.

Thurgood Marshall:

That’s your opinion.

Robert M. Pitler:

But — but I —

John Paul Stevens:

Let me just ask one question, I’m not quite sure what your view was.

If that hearing had been conducted during the minutes of the trial and the judge had found the facts the way it did.

Do you think he would have let the trial go forward without replacing a juror?

Robert M. Pitler:

He — he said in his opinion, I — I don’t want to speak for the trial judge.

I’ll let the trial judge speak.

He said that as a matter of law, he would not have found that juror bias that is correct.

John Paul Stevens:

All right, but you don’t know whether he would have construed New York law, nevertheless to authorize —

Robert M. Pitler:

No — no I think the reality would have been, he would have said to the prosecutor, “Don’t you think you should consent to the removal of the juror?”

And the — and I don’t know what the prosecutor would have done in that situation, but that’s how I think a state trial judge would have handled —

Warren E. Burger:

It’s pretty important —

Robert M. Pitler:

— that situation.

Warren E. Burger:

— what the defense counsel is (Inaudible)

Robert M. Pitler:

Yes, he would have asked — he would have asked both in — in that situation.

Warren E. Burger:

If — if — are you suggesting that if both counsel did not consent, he would not have — on the basis of his statements, he would not have disqualified the juror?

Robert M. Pitler:

I — I think that that’s a fair reading of his —

Warren E. Burger:

It’s a fair reading his own sentence.

Robert M. Pitler:

Of his own view.

That is correct.

Again, and I guess it’s — your questions to me brought that out Justice White that the — the Second Circuit here is concerned with the prosecutorial misconduct.

That’s how they were —

Byron R. White:

It doesn’t matter.

I didn’t mean to ask for — to ask for prediction of the Second — what the Second Circuit would do.

I just wonder how you read their opinion.

Robert M. Pitler:

No, I read it that way, but analytically, I think that that is important.

And the reason I think that is important, is if they would have come out the same way, if they would have come out a different way, but for the prosecutorial misconduct involved, then, in effect, you’re punishing the prosecutor — you’re punishing the State, because the prosecutor has made a mistake and the way I read the precedents of this Court, unless the defendant is prejudiced by the prosecutor’s conduct, federal habeas corpus should not lie without —

Byron R. White:

What’s the rule — what’s — what’s the ruling of the cases in this Court with respect to the — to the possible bias of the juror?

Robert M. Pitler:

With respect to a possible bias of a juror, the United States versus Wood I think is the leading case, and that’s the case I referred to in my discussion with Justice O’Connor.

And that says that at least in jury selection and I think is a toughest standing during trial that has to be actual bias.

And that case has stood for 45 years as the law of this Court.

And — and to change that ruling, to go to an implied bias standard, based on this case, in effect, you’d now going to have to sit and review all the various State implied bias statutes, and if we point out a brief, they are many and numerous, and they’re going to be (Inaudible) in direct appeal to this Court and federal habeas corpus review.

Robert M. Pitler:

And I don’t think that’s necessary.

Wood has served very well for the 45 years and there’s no reason to abandon him at this point in time.

Thank you.

Warren E. Burger:

Well, Mr. Kunstler.

William M. Kunstler:

Mr. Chief Justice, may it please the Court.

I first want to apologize for what maybe a very hoarse voice.

It’s something that I have picked up in Oregon two days ago and there’s nothing much I can do about it.

This case is a unique one, it was called that — not only by myself in our brief, but it was called by the trial judge himself as unprecedented imprudence on the part of the prosecutor, unique misjudgments by the prosecutor, extraordinary about the submission of the application for a job in the middle of trial.

It involves essentially and I think Mr. Pitler has stated some of it, a juror applying for a job in the capital prosecution.

And his course to the application began on the very day that he was selected when he heard, even before other jurors had been seated when he heard in a lunch with court officers about the opening of a job on the major felony squad of the District Attorney’s office.

That was on I believe September 23, 1974.

William H. Rehnquist:

Mr. Kunstler, do you — do you agree that the reasoning of the Court of Appeals was somewhat different than the reasoning of Judge Pierce?

William M. Kunstler:

Justice Rehnquist, I do, but differently than Mr. Pitler does.

Because I thought that what the Court of Appeals was doing in using Agurs has a standard was to say essentially that the prosecution’s misconduct prevented the defendant from exercising a right that he had under 270.35.

That because he didn’t know about it, he couldn’t go to the trial judge at a time when removal of a juror is far simpler than it is after conviction and utilized that statute.

And that statute does not say that you need an actual bias juror.

It says a juror, the fact that a juror is grossly unqualified to sit in the case, that’s one standard or — and I think that’s what we have here, a juror engaged in misconduct of a substantial nature.

Phillips never had that opportunity because of the nondisclosure.

William H. Rehnquist:

But those — those are the State statutes.

I mean you’ve got to find the violation of a federal constitution.

William M. Kunstler:

I understand that.

But I think one of the aspects of due process is preventing the utilization of available statutes — remedial statutes.

I think if a prosecutor engages in conduct that prevents that utilization, you have a substantial due process question that has not been fully briefed on either side here, but I think it’s existent.

William H. Rehnquist:

Even if without the statute there would be no due process violation.

William M. Kunstler:

Well, to a degree.

I think a statute that gives you remedial right presents a due process situation.

The Second Circuit, if it’s read the way Mr. Pitler is saying, it’s saying under Agurs, you have right where something is withheld deliberately which may in some way affect your trial to utilize it.

And I think if you divorce the statutes out of it, 270.35, you can read another ground.

But I thought the Second Circuit was very much concerned about the fact that they were denied a right, that they had under State law to utilize which I think is a due process — rises to due process proportions.

If a right is existent under State law and the prosecutor deliberately prevents you form achieving that right, I think it’s a due process violation.

William M. Kunstler:

But I’m not sure, Justice Rehnquist, which way the circuit went.

I don’t think it’s the most artful of opinions that I’ve ever read, and you can read it under Agurs and you can read it under my interpretation but either one, I accept it because they affirmed.

Byron R. White:

Did the — did the — did the prosecutor who was trying the case and learned about this, testified?

William M. Kunstler:

Yes.

He did, and so did the assistant prosecutor.

Byron R. White:

What was it — what where they — what was their explanation to the —

William M. Kunstler:

The rationale Justice White —

Byron R. White:

— for not telling the — for not telling the judge —

William M. Kunstler:

I was in the middle of cross-examination of the defendant.

Byron R. White:

Right.

William M. Kunstler:

I was preparing summation and therefore, I just couldn’t get around to it.

I was filled — my mind was filled with that defense.

Byron R. White:

I wonder what — if — if — if they testified, why they didn’t reveal what they learned with the judge in the middle of the trial?

William M. Kunstler:

Well, I think that’s the reason that he gave, that he’s mind was so filled with summation and so filled with cross-examination of the defendant who was I believe understand that at the time.

Byron R. White:

Well he just — he just admitted to do it.

William M. Kunstler:

He admitted to do it, but it’s very strange Justice White that he did —

Byron R. White:

He had no — he — he disaffirmed, he disavowed any tactical —

William M. Kunstler:

He did.

I’m not sure I take that — except with (Inaudible) but —

Byron R. White:

The judge — you know, the judge seemed to have — I believe —

William M. Kunstler:

He may have but a very interesting thing is that another juror, he did bring to the attention of the judge.

So his mind was not so filled with summation and cross-examination to forget juror, I believe number three, Mr. Lawrence Bethel or juror number six, I can’t remember the numbers who they found out in the middle of trial was a witness for the District Attorney or Special Narcotics prosecution of the District Attorney.

And they did bring him to the attention, a little late because they discovered it early in October, and they revealed it some time in November, I believe.

But, I think that belies his testimony, that my mind was too filled.

William J. Brennan, Jr.:

And what happened, Mr. Kunstler?

William M. Kunstler:

That judge was excused, consent of all party.

I mean that juror was excused with the consent of all parties.

Judge had a hearing and excused that juror.

And, by the way the statute now reads must excuse then it was a –a may standard.

But, in any event, Phillips never got the opportunity to even have the may portion of the statute, put into operation because of failure to disclose.

William M. Kunstler:

To go on with the juror’s conduct in this particular case, the day he sworn, he learned with the opening from court officers, he expressed as an interest, he gets the court officer to find out for him how to apply.

And then the court officer goes to or calls the District Attorney’s office, gets the procedure, ultimately finds out who’s in charge.

The District Attorney by the name of Joan Sudolnik comes back to Mr. Smith, he says, “Here’s how you do it.”

Mr. Smith fills out an application form which is brief, it’s in the record, it’s very short, with a resume and then Mr. Fontaine takes it with the zone to the District Attorney’s office.

But apparently, the District Attorney said, “You must mail it in personally.

We don’t accept another person’s application from you.”

And so, he then stamped it and mailed it and it arrived on October 23rd in the District Attorney’s office.

The trial was then into the third of its seventh week at that time.

His letter went to a District Attorney Convoy who refuted to Ms. Sudolnik who was in charged of personal recruitment at that time.

She refuted to an assistant District Attorney, Lang who was Sudolnik’s subordinate.

And then there was a lot of communication between Lang and not only this court officer, but another one in which Lang is told that Smith is a juror in the Phillips trial.

So, whether Mr. Smith told him to tell that or Mr. Piazza or Mr. Fontaine did it on their own but both informed the District Attorney’s office that Smith was a juror in that trial.

I’m sure they both knew about it from meeting him in the courthouse and learned it from him or from courthouse gossip.

But in any event, the District Attorney knew it very shortly after the application was received.

And then the District Attorney or at least the Assistant District Attorneys told the prosecutors on November 14th I believe, a week or so before judgment in this case or the juries verdict that there was a juror who was applying for a job.

The prosecutors decided to tell nobody in this situation.

On the Fourteenth —

William J. Brennan, Jr.:

Well, now you say they decided?

William M. Kunstler:

They decided.

William J. Brennan, Jr.:

They get together —

William M. Kunstler:

They got together, they testified at trial that they had met on it, but they had discussed it, and they decided to do nothing more but tell assistants, Lang, Holmes, Sudolnik not to consider it until after the trial.

William J. Brennan, Jr.:

Well, was there a decision, an affirmative decision not to tell the judge?

William M. Kunstler:

There was an affirmative decision not to tell the judge or defense counsel.

That occurred on the 14th of November.

Byron R. White:

Well, who is — who do you — you distinguished during the prosecutors and the —

William M. Kunstler:

I’m using the trial prosecutors, a man named Litman and his assistance

Byron R. White:

You mean who’s trying the case?

William M. Kunstler:

Who was trying the case.

Byron R. White:

And — and the — the assistant — the assistant District Attorneys weren’t trying the case —

William M. Kunstler:

No, the assistants who are running the recruitment program were not trying the case.

William J. Brennan, Jr.:

Well, how many were together at this meeting at which they’ve decided not to tell the judge or the —

William M. Kunstler:

The two of them.

William J. Brennan, Jr.:

Just the two trial prosecutors.

William M. Kunstler:

LaPenta and Litman, the two trial prosecutors.

William J. Brennan, Jr.:

Trial prosecutors.

They — they did not meet with someone in — otherwise the —

William M. Kunstler:

No, except Justice Brennan, after they have reached their decision.

They informed these people whose names I’ve been using, Lang and Holmes or Sudolnik, they were informed not to process it any further and not to communicate with the jury until the trial was over.

They never told the District Attorney at all.

Byron R. White:

Well, is it — is it those two prosecutors who met and decided not to deal with —

William M. Kunstler:

That’s correct.

They both testified.(Voice Overlap) —

Byron R. White:

I believe the two that you — that were — and they testified.

William M. Kunstler:

They testified.

Byron R. White:

And they’re the two who said their minds were so full of —

William M. Kunstler:

Well that was the explanation given by Mr. Litman, I can’t remember —

Byron R. White:

Who is Mr. Litman?

Is he one of them?

William M. Kunstler:

He was in chief trial prosecutor.

Byron R. White:

Yes.

William M. Kunstler:

He was the Assistant Attorney — District Attorney in Georgia.

Byron R. White:

Well, if the prosecutors actually met and made a deliberate decision about this, this isn’t — it wasn’t in the middle of cross-examination is there —

William M. Kunstler:

No, it was undoubtedly recess, evening.

In fact, there was one meeting on the 15th of November, the next day after the prosecutors discovered it, that Holmes, one of the District Attorneys who was involved in the processing of the application, what meant with Mr. LaPenta who was the second in command of the trial team and tried to talk to him about it and LaPenta told him, “I don’t want to listen to that.

I don’t want to hear that anymore.”

And that was the end — that was the last that you have as for the prosecutors but it was deliberate, willful decision not to tell anyone including the District Attorney himself, Mr. Q who never learned of it.

After — as soon as the trial ended, then of course Mr. Smith called Ms. Sudolnik up, the very next day, after judgment.

After verdict, he called Ms. Sudolnik up, he couldn’t reach her, and so he got a friend of his, Mr. Reilly who ran and I think still does the Bloomingdale’s security office in New York, he got Mr. Reilly to call up Ms. Sudolnik and Mr. Reilly said, “What gives with Smith’s application?

He was a juror and just completed Phillips trial.”

And I think the implication of that statement were hardly lost on anyone.

William M. Kunstler:

In any event, Ms. Sudolnik told him then that the juror’s application would be considered in the normal course of business.

That’s the day after the jury’s conviction.

The District Attorney, Mr. Q never learned of this until December 4th of 1974, some two weeks or so after verdict.

When Mr. LaPenta told Mr. Q’s assistant, John Keenan in an elevator in the federal building where Phillips had a habeas on another matter going told Mr. Keenan that one of the jurors had applied for a job during the trial.

Mr. Keenan told the District Attorney, Richard Q and then five days later, they informed the trial judge, and the trial judge did hold a hearing both on juror number three and juror number six.

So the sequence you have is that at least by the 13th of November, the District Attorney’s office, many people knew that Smith was a juror in the Phillips case and that Smith had an application pending in the office.

William J. Brennan, Jr.:

Any — any effort to explain why Mr. Q was not told after the trial?

William M. Kunstler:

I did — I can’t remember the transcript that well Justice Brennan but he was not told until December 4th.

I guess the reason is a prosecutors, the trial prosecutors did not tell Mr. Keenan until that day when they’re at the federal court hearing when he said in words or substance, by the way, did you hear this?

And told him and then Mr. Keenan on the forth told Mr. Q.

So it was the suppression at the lower level, the trial prosecutor’s level as well as by all these other District Attorney’s who knew of it.

Byron R. White:

Well, the record doesn’t indicate that they made any knowing decision not to tell their superiors are not —

William M. Kunstler:

Justice White —

Byron R. White:

Or is it — but certainly it was a failure to, there’s no doubt about that.

William M. Kunstler:

I think, as I remember the testimony before the Judge Birns in the hearing, the decision was made not to tell the Court or defense counsel on the 14th of November and then the instructions were given to the Assistant District Attorneys who were working on the applications to just not do anything with the application or talk to the juror, communicate with them until after the trial.

I don’t remember any testimony saying, “Don’t tell Mr. Q.”

Byron R. White:

Yes.

William M. Kunstler:

I don’t remember that at all.

Warren E. Burger:

And when did the trial judge find about that?

William M. Kunstler:

He found in December 9th.

Warren E. Burger:

Well, what did he find about the consequence of (Voice Overlap) —

William M. Kunstler:

Oh, the consequences?

He held the hearing —

Warren E. Burger:

— to be bias?

William M. Kunstler:

Chief Justice Burger where he found no actual bias.

He did not even consider implied bias, it isn’t mentioned in his opinion and I don’t know whether your counsel spoke about it, or with the trial counsel or even appellate counsel but he found only no actual bias and he said —

Warren E. Burger:

Does the finding of no actual bias make it unnecessary to reach the next question you’re suggesting?

William M. Kunstler:

No, I think you must go to the next question because actual bias —

Warren E. Burger:

You mean per se — you mean a per se bias from the circumstances?

William M. Kunstler:

That’s correct.

William M. Kunstler:

I think if you —

Warren E. Burger:

Well that’s a little more (Voice Overlap) —

William M. Kunstler:

— don’t go to the next step —

Warren E. Burger:

That’s a little more than an implied bias isn’t it?

William M. Kunstler:

Well, implied bias is —

Warren E. Burger:

You don’t need any implication if there’s a per se rule.

William M. Kunstler:

Well, when you say per se rule, I’m not sure I quite understand what you mean except as I understand what you’re saying —

Warren E. Burger:

Do you mean — do you usually mean it and every other context where the phrase is used?

William M. Kunstler:

Well, I don’t see a per se rule here.

I see a rule in case-to-case and I see some situations where bias must be implied.

This Court has found it in several cases.

The cases all refuted to by Mr. Pitler on the District of Columbia cases.

Is there an implied bias in the man who works for Bureau of Engraving and Printing to serve on the federal jury in a narcotics case?

I agree, there’s no implied bias.

But one time, this Court held in Crawford there was, but I’m not so sure I subscribed to that or you’ll never get a jury in the District of Columbia if everyone that worked for the government was excluded?

And I don’t see implied bias because you work for Bureau in — of Printing and Engraving.

But take the situation if the juror works for the prosecutor, the District Attorney for the District of Columbia.

That would be applied bias to me.

I don’t see anybody working for the prosecutor.

It cannot be impliedly biased.

Now that doesn’t mean they’re actually biased —

Warren E. Burger:

Wouldn’t that problem take care of itself in the majority selection process?

William M. Kunstler:

Would it take care of itself?

Warren E. Burger:

Would it take care of itself?

William M. Kunstler:

No.

Warren E. Burger:

Wouldn’t it be just — you mean, if he disclosed —

William M. Kunstler:

Oh, no.

Warren E. Burger:

Will they work?

William M. Kunstler:

If he disclosed it during the voir dire, then you have chance to take care of it, of course, I agree with that.

In this case, there was nothing to disclose because he didn’t make his move until he was sworn.

William M. Kunstler:

So that was precluded from operating.

I am certain, had it been disclosed, he would never have gotten on the jury.

I have an application pending with the very office which is prosecuting the defendant.

Or if he had said so in the middle, I am certain Judge Birns would have excused him.

Judge Birns is speaking ex post facto.

He’s just going through a highly publicized, very significant murder trial, and the prospect of setting it aside now is a much more difficult task for a trial judge as we all know, than doing it in the middle of trial when all you can do is excuse the juror and put it all in this place.

Byron R. White:

Mr. Kunster, how would a — what are the possibilities of biasing the jury if he files this application for a job?

What are the possibilities of — of his becoming bias one way or the other?

William M. Kunstler:

Well, you never can tell actually, of course, because the only —

Byron R. White:

Well, what are the possibilities?

William M. Kunstler:

The possibilities are that this man who was totally unqualified, if you — in the record you’ll find that his application was later rejected because he was unqualified.

Byron R. White:

And (Inaudible) to convict in order to get a job is that it?

William M. Kunstler:

Well, to be more inclined to convict, then not.

I think the defendant was entitled to a hung jury, if that was possible in this case, more inclined to convict, yes.

And I think there’s one more point Justice White.

Byron R. White:

And if he — and if he innocently file that as a claim is, it — it maybe — he might — he might have been — he certainly would have thought or the argument is that he would have been less — he would have thought it would hurt his chances to get the job if he voted to quit, is that it?

William M. Kunstler:

I think a reasonable man might find that conclusion, I think as Justice Marshall said, the first Mr. Justice Marshall said in the Burr case, there are some situations where we must comply biased, and one of those is where a man is a job seeker with the prosecutor.

In my lexicon because a reasonable man or an ordinary average man as Justice Black used in the jury selection clause.

Byron R. White:

Well, if you’re right about that, then if it did come up on voir dire, it wouldn’t have been amazing, you would have said that you — you had a challenge for cause.

William M. Kunstler:

Yeah.

I think you will have a challenge for cause, I think it would be —

Byron R. White:

And don’t you have to take that position at this — at?

William M. Kunstler:

Yes, I think it would be a cause for challenge.

The judge might say if he denied it — (Voice Overlap) and the challenges for cause are difficult because if the perspective juror says, “I’ve applied for a job, but I am not prejudice.

I can decide this case fairly and squarely.”

Many judges say that’s it, that’s not cause in the true sense of the word.

Harry A. Blackmun:

Well, if you were trying the case, (Inaudible) the juror, I bet you’d use a peremptory right quick.

William M. Kunstler:

I used peremptory –-

Harry A. Blackmun:

And you lost out in the cause —

William M. Kunstler:

I tried cause first –-

Harry A. Blackmun:

Yes.

William M. Kunstler:

When I came at proper on that, I would go to the peremptory.

Warren E. Burger:

How do you square that — how do you square that with what this Court said in Witherspoon that you can be against, you can have contentious objections against the capital punishment but you can still sit on the jury.

William M. Kunstler:

Well, I think that’s true.

I’m not so sure I’ve always agreed with some aspects of Witherspoon but I think you can have contentious objections to the death penalty and still be a fair juror.

I don’t like the death penalty but I’m going to decide this case on the merits.

But that’s a little different here, because however you feel in your conscience, you’re not beholding in any way to the prosecutor.

You’re not thinking in your mind, if I go this way or that way, I have a better chance or a lesser chance for a job, and I think an average man would consider this.

I don’t believe Mr. Smith’s protestations, I can’t prove it, but I just think Justice Burger, you have to take human life for what it is and the psychology of people for what that is.

Sandra Day O’Connor:

What are the proceedings in New York for finding out after the fact how a particular juror voted?

Does the juror have to disclose how he voted assuming it were a hung jury or something.

William M. Kunstler:

Not at all.

In fact, not even the judges tell the jurors, “You don’t have to speak to anybody.”

Some even prohibit it.

And then the federal court that’s quite general now.

But in the state courts, they use to give in an option.

If the defense wants to speak to you or prosecution and you want to talk, you can talk.

Sandra Day O’Connor:

Doesn’t that militate against then finding implied bias for a juror who has a job application in?

William M. Kunstler:

No.

I don’t think so.

Sandra Day O’Connor:

Might not that person feel that nobody would know or be entitled to know, so it wouldn’t matter.

William M. Kunstler:

Well, because the juror has the option of being quiet.

Sandra Day O’Connor:

Right.

William M. Kunstler:

If I find out, you’ll rarely find out anything.

They leave the courtroom and the courthouse you try to talk to them.

Many judges say, “You shouldn’t talk”, because that raises the specter of upsetting the jury verdict or contradicting jurors.

I don’t know what was said in this case.

In most of the cases I’ve been in, on the State level, Justice O’Connor, it’s a may.

You may talk if you wish, you may not if you don’t wish.

Sandra Day O’Connor:

I just wonder whether that fact doesn’t militate against finding implied bias.

William M. Kunstler:

I don’t think so.

Just take this as an example.

If they have gone up to Mr. Smith and questioned him after the verdict, I don’t think he would have said, “Listen, by the way I send a letter in the middle of the trial.”

I think he would have just said the questions are — how did you decide — why did you decide this way?

I did it for X, Y, and Z.

But you would never find about the letter.

And it’s the letter that makes the situation.

He’s a job seeker with the prosecutor.

Sandra Day O’Connor:

You don’t allege that the post-trial hearing which was held was anything but fair, do you?

William M. Kunstler:

No.

But it’s an impossible hearing.

Because, it’s — it’s not like the Remmer hearing that Mr. Pitler relies on.

In Remmer, the standard was not the internal workings of a juror’s mind who is guilty of misconduct, because everything militates against saying, “I was guilty of misconduct.”

This man wanted to go to law school.

Law enforcement was an interim occupation for him.

He was going to take a job with the — the DEA, the Drug Enforcement Agency overseas for a year.

Come back and go to a law school.

So, imagine if he had ever said understand, assuming it to be true.

I decided this case the way I did because I wanted a job with the District Attorney’s office.

He could never go to a law school.

He could never get a job in law enforcement, and he might be prosecuted for contempt certainly if not under the criminal statute that we put in our appendix.

I don’t think those criminal statutes to be candid applied to this juror.

I’ve tried to read them 40 times and they — they just don’t seem inapplicable for this kind of misconduct, but certainly contempt would not be inapplicable.

Warren E. Burger:

Could you disclose the — these future plans about these ambitions for law enforcements?

William M. Kunstler:

On the voir dire?

Warren E. Burger:

Yes.

William M. Kunstler:

Yes.

He said, I’m going — I’ve been working as a security guard while I’m going to Columbia University, School of General Studies.

I’m graduating in October, it’s a very — the month later after his selection.

I then intend — I’ve applied to the drug enforcement administration for a job overseas, so that I may get enough money to go back — to go to law school.

William M. Kunstler:

He said that this is an intermediate step for me and so he really wasn’t interested much in law enforcement as a permanent career, but being an attorney.

And, that’s one reason why I think that when he said what he said in the post-trial hearing that he could not be candid if the truth were as I think it well, may be, he couldn’t say it.

It would ruin him for life.

And that’s an awful big burden to put on a man to accept his word in all do conscience as being the last word.

And that’s what Justice Birns did.

He said, “This is the word of this man, he told me he would be fair and was fair and I accept it.”

Plus all of the other evidence had nothing to do with him, just when the letters were mailed and who was spoken to.

I might indicate that when he was rejected as being unqualified, he probably knew he was unqualified, because what they have in life, he’s been a security guard at Bloomingdale’s and he wanted to get on the major case felony squad of the District Attorney, and was rejected for being inadequately prepared.

And I think he knew that too.

This was a golden opportunity for this man.

He got on the on the jury of a major case that have been tended to for acquittal when Mr. Bailey tried it, the first time around.

Warren E. Burger:

That’s all speculation —

William M. Kunstler:

No, they admit that in their brief.

Warren E. Burger:

— in your part.

William M. Kunstler:

I thought it was all a speculation from the newspaper reports, but then I noticed in their brief, they say the same thing.

I think in their petition for certiorari, they said it was tended to for acquittal.

I think everybody accepted that Chief Justice Burger, although it came from the newspapers.

Warren E. Burger:

I’m speaking of your psychoanalysis, or dismantled process.

William M. Kunstler:

It has to be speculation, but I think it’s a speculation when you do — go into implied bias, you have to do it.

When Blackstone said, “You can’t have the employer.”

For example, a — a juror on the jury who was employed by the other side, that’s all speculation too.

That man could be fair in some, you know actual standard of life.

But there are some places you must say as Chief Justice Marshall said, we have to draw the line.

You cannot permit people on jurors who are seeking favors from one side or the other.

And New York is so held, we cited the Tableporter case in our brief where a juror’s son applied for a job with the defense.

And our Court said, “That’s implied bias.”

He implied for a job during the course of the trial.

True it’s only a municipal court decision, but it’s the only one I found in New York that is at all similar to what we have.

I might just add in — in closing because I see the orange light, that we have submitted a number of cases, very, very extremely recent ones.

In Hawk against the State in Indiana, I think it is the proper rule where a juror’s husband had been offered a job with the District Attorney’s office and she knew only his application was pending and they held that was an implied bias.

William M. Kunstler:

We don’t think that 2254(d) applies that the (Inaudible) case has any applicability here.

It’s a wholly different situation then our case and — in reading the case, it’s mentioned quite prominently in their brief, we didn’t mention it because we didn’t think it was just all applicable in this case.

We don’t think the Remmer type hearing is sufficient here, you have a serious situation where you have a juror who is expecting a favor, hoping for a favor and it’s more important in this case because he is seeking a job.

I wouldn’t feel as strong or I’d be almost as strong if he had the job already because I think it’s harder to be fired for voting not guilty than it is to be hired.

I think the standards are totally different in this situation.

We’ve raised the appearance of justice standard.

I think, I don’t have to believe at that point.

I think it’s obvious, is this man any different than the judge in Tumey’s case, who was going to get a financial benefit.

What if you had a hearing there, and he said, “I perfectly fair.

Even though I share him the proceeds, I’d be perfectly fair in this case.”

I don’t think this Court would accept that anymore than it did in Tumey.

In Rose against Mitchell, this Court said, “The harm is not only to the accused but to society as a whole when the appearance of justice is destroyed.”

And I know you can stop a hundred people on the streets in Washington D.C. and say, “Do you think it’s fair that a juror in a capital case has an application pending with the District Attorney?

Do you think that would be a fair juror?”

And I would be very seriously surprised if anyone of those 100 or 1000 or 10,000 would say, “That’s fair to me.”

I just think upfronts the entire law to hold that a juror like that should sit on the juror in a capital case, and that the prosecutor should withhold the information.

I like the prophylactic standard that the Second Circuit hindered that in its decision.

I think it’s — there are some cases where the prosecutor does deserve to have a new trial.

Byron R. White:

How many — how many judges refused to set this aside?

William M. Kunstler:

I didn’t hear that.

Byron R. White:

How many — how many judges refused to set this aside after this post-trial hearing?

William M. Kunstler:

Well, interestingly enough, the Appellate Division affirmed without opinion.

Byron R. White:

But there was a — a fellow — the judge who held the hearing.

William M. Kunstler:

Judge Birns was one.

The Appellate Division —

Byron R. White:

So he would be one out of your 1000?

William M. Kunstler:

Well, I’m not so sure that he didn’t say, yes, he would be one out of my 10,000.

I agree — I agree with that.

I — I wouldn’t ask it.

Byron R. White:

No, no.

Byron R. White:

And the appellate — the Appellate Division?

William M. Kunstler:

We had five there.

Byron R. White:

And they — they —

William M. Kunstler:

They did too.

But then on the same position, Justice White –

Byron R. White:

That’s right.

William M. Kunstler:

— because they are seeking to — and — and to avoid the enormous expense in setting aside of a jury verdict which is very hard, the ordinary person that’s on the appearance of justice —

Byron R. White:

Right.

William M. Kunstler:

— is not a judge and isn’t sitting on this kind of a situation.

So, I wouldn’t have gone to them in the first place.

Byron R. White:

All right.

Thank you.

William M. Kunstler:

Thank you.

Thank you very much.

Warren E. Burger:

Do you have anything further Mr. Pitler?

You have two minutes remaining.

Robert M. Pitler:

Listening to Mr. Kunstler described the case it has nothing to do with the relationship or reality or the record.

I mean, the suggestion that the prosecutors deliberately met and chose not to decide this — discloses the Court, it’s just not true.

What happened there is, that Mr. Litman was standing outside, Mr. Keenan’s office to talk to him about another matter and Ms. Sudolnik came up to say — to tell him this, he was in the middle of cross-examination.

She said, “Oh my god!

That’s all I have to hear now.

Just don’t tell anybody.

Just don’t contact him at all, have everyone — to have no contact.”

And that was the extent of the decision in this case.

And for Mr. Kunstler to suggest to this Court that the juror then made his move as soon as he was selected the jury, I recommend — recommend reading Mr. Kunstler and to the Court, the record in the case.

John Paul Stevens:

What about the other juror?

They did tell the judge about the other juror?

Robert M. Pitler:

Because that was — what happened was that — it’s been going on for a while, they were getting on the voir dire minutes and they knew about that for a while and they finally disclose that.

John Paul Stevens:

But don’t you think the possibility of talking to the judge occurred to them when they met outside then?

Robert M. Pitler:

Judge, I — I really do not think so.

Robert M. Pitler:

And I think that the trial judge was correct to credit the prosecutor’s testimony in that regard.

But let me talk about the juror as well, that Mr. Kunstler would make it seem that as soon as upon his being sworn, he actively run out for a job.

That’s not true.

At — at pages — the record makes clear throughout that he applied for that job on the 16th of October.

That was three weeks after he’s been (Inaudible) about a juror and that’s when he first found out about it.

So to try to create this impression of prosecutors running around and conspiring and the juror running around and actively — see, is just not true.

It has no — if you read our brief and if you read the record, you will see what happened here, you had an innocent, naive juror who was actually impartial.

The Constitution requires no more, the state courts requires no more, and a federal courts sitting in habeas corpus review of the conviction certainly should require no more.

The judgment should be reversed.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.