Stewart v. United States – Oral Argument – February 21, 1961 (Part 2)

Media for Stewart v. United States

Audio Transcription for Oral Argument – February 21, 1961 (Part 1) in Stewart v. United States

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Earl Warren:

— continue your argument.

Edward L. Carey:

Thank you, Your Honor.

Mr. Justice Stewart, in reply to your inquiry, you asked about what the prejudice was by his taking the stand at the third trial and not at the first and second.

Well, the — the prejudice as we see it is this.

In — in the third trial, we depend on the basis that this man was a mental defective.

Being a mental defective, he came within the ruling of the Durham opinion.

Now, he could not have taken the stand at the first trial and demonstrated that he was a mental defective because it was at the rule of law in the District of Columbia at that time.

So we say it is prejudice to suggest to the jury that this man was consistently a mental defective and having the right to take the stand at the first trial in 1952 and demonstrate he was a mental defective just wasn’t correct because he couldn’t demonstrate as a mental defectiveness in 1953 because it wasn’t the rule there at the District of Columbia.

So, we suggest and so suggesting to the jury, “This is the first time you have taken the stand.”

That jury doesn’t have the right to assume if they believed the prosecutor in this absolute representation which he made that this man didn’t take the stand at the first trial when he could have and he didn’t.

So, we say that presents a prejudicial aspect to the prosecutor’s comment.

And the Court of Appeals in affirming the opinion or the judge in the lower court said and it’s on page 2 of our reply brief, I quote.

It says, “In short, for that purpose, the question while relevant and competent was of only of marginal materiality and opposing of it could be justified under Grunewald only if did not in fact have collateral prejudicial effects.

If it did — the Government, “If it did, we concede as we noted the outset, the question should not have been asked.”

However, the Court of Appeals said, “As we see it, the challenge question bears on the appellant’s credibility and in some degree whether he’s guilty of the acts charged.”

So, you now have an entirely different position taken by the Government.

They don’t adopt the Court of Appeals’ majority opinion.

They now concede that this question, asked of the defendant Stewart, was of marginal materiality.

I’d like to quote from the opinion of this Court in the Grunewald case and I quote, “We are not mindful of the question whether a prior statement is officially inconsistent to be allowed to go to the jury on the question of credibility, is usually within the discretion of the trial judge.

But where such evidentiary matter as we contend this particular aspect as — as grave constitutional overtones as it does here, we feel justified.”

An exercise in this Court supervisory control to pass in such a question, this is particularly so because in this case, the dangers of impermissible use and the Government almost concede it’s impermissible, because they say it has limited value, it’s a marginal materiality.

The Court says, “Because in this case, the dangers of impermissible use of this evidence far outweighs whatever advantage the Government implied of derived from it if properly used.”

We find ourselves in that particular situation.

I’d like to say too — further, the difficulties as I see this particular case is this — the difficulties are.

Here’s a man, exercises a constitutional right to stay off the stand.

He stays off the stand at the second time.

The third time, he takes the stand and the jury is reminded of that particular fact.

What persuasive effect does that position have on the defendant?

Does he take the stand at the first trial or does he not?

He maybe under compulsion to take the stand every time, this type — despite the fact as a constitutional right not to do so, because if he doesn’t take the stand at the first trial, the danger is always imminent.

Edward L. Carey:

That if he does take the stand at the second trial, he’ll be reminded of the fact and so well the jury that you would an opportunity in a prior occasion when you were tried for this particular crime and you did nothing about it.

We say that if a man exercises such right, he should never be placed in an embarrassing situation where the prosecutor has the right to remind him of taking that constitutional position.

So gentlemen, we say on those bases, we ask that this judgment be reversed.

John M. Harlan II:

How much time elapsed (Inaudible)

Edward L. Carey:

This occurred on the second day of a five-day trial, second or third day of a five-day trial.

John M. Harlan II:

(Inaudible)

Edward L. Carey:

Subsequent?

No, sir, Your Honor.

The prosecutor made no reference to it and of course, we made no reference to it nor did the Court make any reference to it.

Charles E. Whittaker:

(Inaudible) request to admonish the jury to strike it out of their minds?

That strike no record in (Inaudible)

Edward L. Carey:

No, there was none, Mr. Justice Whittaker, and the reason for that was this.

It was our considered judgment.

The representation by the prosecutor was so substantially prejudicial that a director and admonition from the Court would have no effect on the jury.

John M. Harlan II:

Well, you might have also considered, it’s better (Inaudible)

Edward L. Carey:

That may have been a position.

John M. Harlan II:

(Inaudible)

Edward L. Carey:

That — that may be one of the positions but that isn’t the position we took, Your Honor.

But Justice — Mr. Justice Black, I think asked what the prosecutor said in this argument to the jury.

I have a short excerpt here which I’d like to read.

This is what the Mr. — the prosecutor said, “Now, ladies and gentlemen, we haven’t had —

Felix Frankfurter:

When, in closing or opening, closing or opening?

Edward L. Carey:

Closing.

Felix Frankfurter:

Closing.

William J. Brennan, Jr.:

Is this in the record?

Edward L. Carey:

Yes, Your Honor, in the transcript.

William J. Brennan, Jr.:

What — what page?

Edward L. Carey:

It’s in the transcript.

It’s not in the printed record, Your Honor.

William J. Brennan, Jr.:

Oh, I see.

Edward L. Carey:

Now, ladies and gentlemen, we have had the testimony of the defendant Willie Lee Stewart.

Willie Lee Stewart testified and direct from Mr. Carey and uncrossed for me and his testimony might be summed up as the wholesome of nothing.

For this reason, not that I say that you should not consider when you consider all the evidence, you must, you have got to.”

What I am saying is that the defendant said nothing with regard to the crime with which he is charged but that shortly, certainly established to the fight, the prosecutor believed.

There is no inconsistency between the defendant taking the stand and testifying as he did at the third trial and his failure to take the stand at the first and second trial.

Earl Warren:

Mr. Belcher.

Carl W. Belcher:

Thank you, Your Honor.

May it please the Court.

Counsel has referred to the stipulation that the Government has made in this case to the effect that if there’d be prejudice, then this was certainly error, the asking of this question was certainly error so that the only questions left in the case with a concession or two.

One, was there any prejudice properly arrived at or even improperly arrived at by this jury from the asking of this question.

Earl Warren:

Would you mind just stating that stipulation again?

I — I didn’t quite get it, Mr. Belcher.

Carl W. Belcher:

Yes, Your Honor.

We agree that the question here in issue, as for the prosecutor, should not had been asked if it did in fact have a prejudicial effect for its probative value for the only purpose for which it was logically relevant, namely memory testing, was hardly sufficient to worth the incurring of prejudice.

I can say, Your Honor, that if there was prejudice, then this question was — should not have been asked.

It was an error to ask it.

So, that we have only the one question, “Was there prejudice?”

And secondary question also, assuming that there was some possibility of prejudice inherent in the asking of this question, is it a situation that demanded something less than a mistrial?

Namely that the judge instruct the jury to disregard the last question and answer, or that he instruct the jury that leading questions are not evidence of the facts assumed or go the whole way, the third alternative namely to tell the jury that the fact that an individual, the defendant did not take the stand and prior to all these evidence of nothing.

In any event, those three possibilities were open and the second question that is left in this case now is, “If should one of those three other alternatives have been followed here,” so that it would not be error to grant the mistrial — refused to grant the mistrial even though there might be some small likelihood of prejudice.

At the outset, if Your Honor please, we say that here, the jury never was in fact told that the defendant did not testify in the prior trials.

In other words, that they — this jury never knew that the defendant had exercised his privilege of not testifying in the prior trial.

This was the third day, the afternoon session, the third day of a six-day trial to the extent that the brief says, “Second day of a five-day trial, that brief is in error.”

It was actually the third day of six-day trial.

Felix Frankfurter:

I was just reflecting on the reliability of — of any of us, that counsel can’t agree on what they took place about how many days trial.

Carl W. Belcher:

It —

Felix Frankfurter:

That’s an amusing fact that.

It has to be between two and five and three and six.

Carl W. Belcher:

Your Honor, I think perhaps the printed record is (Voice Overlap) —

Felix Frankfurter:

Alright, Isn’t important (Voice Overlap) —

Carl W. Belcher:

— thrown in there.

Felix Frankfurter:

As a matter of fact, I do think there is some importance as to question elicited by Justice Harlan.

Carl W. Belcher:

It might —

Felix Frankfurter:

As to the setting, the context of this episode is — is important, I believe very important.

Carl W. Belcher:

Yes, Your Honor.

Felix Frankfurter:

And therefore, the day of the length of a trial does become relevant.

Carl W. Belcher:

Yes, Your Honor.

I might say that we can agree that at least there were agreement of the parties.

There were three days after this one day in which the jury have further evidence on the case.

Coming as it did, the question, “This is the first — is — this is the first time you have gone on the stand, isn’t it Willie?”

The question was never answered at all.

The witness did respond but he did not respond in a way which disclosed that he had exercised his privilege in a prior — prior trial, because his answer was, “You and nobody else — pardon me.”

I am always the stand, I am everything.

I then told you,” was his answer.

So, that that answer did not disclose that he had failed to take the strand — stand in prior trials.

The argument —

Earl Warren:

But he went a little farther than that didn’t he, the — the prosecutor?

Carl W. Belcher:

The prosecutor just —

Earl Warren:

I — I thought —

Carl W. Belcher:

The question was repeated.

Earl Warren:

I thought he said something about, it is a fact but you didn’t.

Carl W. Belcher:

Well, that — that was a good deal later in a bench conference and the jury never heard it.

Earl Warren:

Oh, jury never heard that.

Carl W. Belcher:

Jury never heard it.

Earl Warren:

Oh, I understood — I —

Carl W. Belcher:

And that of course is a good part of our argument here —

Earl Warren:

I see.

Carl W. Belcher:

— that the jury —

Earl Warren:

Yes.

Carl W. Belcher:

— didn’t hear a very significant amount of this fact that the —

Earl Warren:

Yes.

Carl W. Belcher:

— calender last places this case at all.

We do not argue here that the jury didn’t hear the question.

We say that from this question, the jury could’ve inferred nothing.

Number one, it was not answered.

They had to make it by inference and the inference itself was the leading form of the question didn’t leave logically to one inference as opposed to another inference.

It’s possible for the jury to have said that the leading form of the question by the prosecutor suggest the fact that he didn’t take the stand on the prior trial.

But the context also would suggest to this jury the equally available inference, namely that this prosecutor was trying to provoke this defendant into responding in a way as to say, “I did take the stand on the prior trial.”

So, that a juror could not immediately come to the inference that the facts stated in the question for the prosecutor were true facts, because the other inference was equally available.

We say that the context of which this setting did occur also shows that there’s no basis for believing that this jury improperly inferred the fact.

In fact, there was every indication from the context, the setting here, that this question made no impression on the jury.

John M. Harlan II:

The Court of Appeals, if I understand it, did not decide this case on the basis of the jury nor defendant (Voice Overlap) —

Carl W. Belcher:

Your Honor, it certainly expressly they did not.

John M. Harlan II:

Well, I mean they didn’t consider the question of prejudice or non-prejudice.

They said it was a permissible piece of cross examination that you now agree it was not.

Carl W. Belcher:

That’s correct, Your Honor.

I could only add to that that the Court of Appeals in majority opinion went on two occasions, went to some length into the matter that this was a first-degree trial, and the death penalty was involved here.

So, that the extent that those remarks in the majority opinion do go to the seriousness of this case.

I think it’s proper to infer that they were in effect considering the problem of prejudice, and have at least by inference at the solution that there was no prejudice.

Felix Frankfurter:

Or maybe they have a problem with prejudice.

Carl W. Belcher:

I beg your pardon?

Felix Frankfurter:

They — that Court of Appeals didn’t consciously at least or as revealed by what they wrote weren’t confronted with the problem of prejudice.

Carl W. Belcher:

That’s correct, Your Honor.

So that only thing I —

Felix Frankfurter:

If the question is permissible, then you don’t bother about prejudice —

Carl W. Belcher:

That’s correct.

Felix Frankfurter:

— there are none.

Carl W. Belcher:

That’s correct, Your Honor.

The contexts of these questions were a memory testing context.Even the counsel for the petitioner was asking such questions as, “Do you know me, your counsel?

Don’t you know Mr. Carey, your counsel?”

Carl W. Belcher:

So that from that point on the question’s repetition, we took a context of, “Do you know, do you remember?

Do you know and do you remember?”

And that went on at some length.

One of the questions was asked in the prior trials.

Question, “Have you ever been tried for first-degree murder before this time?”

And he answered, “I ain’t never been tried, I never been tried.”

But again, I point out that is a memory testing context.

The prosecutor followed right along with the memory testing context.

He did get certain information from the appellant on that subject matter.

He got the information, for instance, from a question, “Were you over there earlier yesterday?”

Meaning, “Have you left — did you yesterday leave counsel table and come to the witness stand to be the witness?”

His answer was, “I was over there, yes.”

And the question, “You walked over there to where you are now like you got up,” he says.

“Like you got up that is like I got up.”

And further question, “Where did you sleep last night?”

Answer, “I slept down to the jail there.”

So that the prosecutor in testing the memory of this witness did receive answers, and the prosecutor then came to the question which had been asked of him on direct examination by his counsel.

“Willie, you were tried on two other occasions?”

And he answered, “Well, I don’t care how many occasions, how many case, you say case, I was on case, ma’am, once in a time.”

It was at that point having gone at the same subject matter that the witness had previously indicated that he had not been tried, that the prosecutor asked a question here in issue.

“This is the first time you have gone on the stand, isn’t it Willie?”

The first answer was, “What?”

And then the witness again — the prosecutor again repeated the exact same question, “This is the first time you have gone on the stand, isn’t it Willie?”

The answer, “I am always the stand, I’m everything, I done told you.”

Mr. Smithson, the prosecutor, “That is all.”

The witness continued to talk, “You and nobody else going ever to stop me.”

And then the Court injected Mr. Carey, petitioner’s counsel meaning, “Do you have anything or redirect anything further?”

In which Mr. Carey responded, “That is all.”

The witness continuing to interject said, “Ask me?”

At which point of the record shows, the witness was excused.

Carl W. Belcher:

Have he left the witness stand?

The witness having left the witness stand, Mr. Carey, at that point then brings up the beginning of the ruling here in issue.

He asked, leave to approach the bench.

He’s granted leave to approach the bench, and at the bench that he does make his motion for the mistrial.

That’s the only form of relief that he did request so that the setting in which there was even the — the lead to request to go to the bench did not come out of it a normal context.

There was nothing in that setting would call the attention of the jury to the fact that they should think back to the last question and — other prosecutor and tried to figure out if there was anything they should draw from it because the proceedings had terminated in a very normal fashion.

The witness having come from the witness stand, then there was this normal request of — for leave to go to the bench for a conference.

Also, we might point out, Your Honors that the Court here, the District Court, we think also viewed the matter in the context of a memory testing situation.

The Court didn’t say, “I didn’t hear that question or I haven’t heard any questions.

I didn’t hear the last question.”

The Court said, “He didn’t say that,” meaning that the Court was, to me at least, and where the Court has been alert, they’ve been thinking in terms of the “do you remember” type of question and had lost its focus — his focus on the content or the subject matter of the question, focusing only on the memory testing aspect, “Do you remember?”

We think also here that the lack of impact on this jury is demonstrated by the actions of defense counsel.

He made his request for mistrial and he left the matter rest.

He did not do anything which would have brought the matter to the attention of jury.

For instance, he did not even ask for the minimum relief but if Your Honor please, instructed the jury simply in terms of, “Please strike the last question and answer from your minds and disregard it,” which would not have refreshed as the subject matter.

But those who — jurors who did remember would’ve been told to forget it, he did not ask for that.

So we think that he made a decision, the record would indicate that he made the decision at that time.

Number one, the jury — this has made no impact on this jury, and number two, I don’t want to do anything which will make — give it an impact.

John M. Harlan II:

Well, perhaps this is irrelevant in view of your concession but what was the theory of the Government and asked him this question?

Carl W. Belcher:

Your Honor, the theory of the Government insofar as the prosecutor had a conscious motive, I’m sure was pretty much as he expressed it.

Namely, I think the jury is entitled to know.

John M. Harlan II:

What does that mean?

Carl W. Belcher:

Your Honor —

John M. Harlan II:

It’s irrelevant.

Carl W. Belcher:

It — it has the aspects there of being a type of standard answer for a prosecutor.

If he has no specific case rule, law or theory in mind, a good way to respond is I think they’re entitled to know.

Now, that —

John M. Harlan II:

Well —

Carl W. Belcher:

— maybe the answer here.

There may not be the answer here.

John M. Harlan II:

That isn’t a very good answer when you’re trading on a very sensitive territory as your own argument shows you were.

Carl W. Belcher:

Yes, Your Honor, that’s true.

And we can only say here that the jury didn’t hear this matter.

We think that the case would be significantly different if the jury had head what the prosecutor had to say, and that they heard indeed any conversation about the last question and answer.

Felix Frankfurter:

I suppose the answer in your — the — the first — your first statement in reply to Mr. Justice Harlan’s question is probably you go on guessing, it’s probably the correct answer insofar as the conscience, he had a purpose.

Even the Assistant District Attorney has gone over their purposes, do they?

Carl W. Belcher:

I think Your Honor that insofar as they have a purpose on occasion, it might be a very general purpose, namely I’m going to trip him up if I can.

Felix Frankfurter:

Well, that is not —

Carl W. Belcher:

And then this —

Felix Frankfurter:

— I mean the second sentence indicates they were talking about the trial so I thought I’d ask him about the trial.

Carl W. Belcher:

That’s correct, correct.

Earl Warren:

Mr. Belcher, I — I don’t quite understand how you can assume that because this question didn’t happen to make any great impression on the judge that it could not have made any impression on the jury —

Carl W. Belcher:

Well, Your Honor, I —

Earl Warren:

— because the question was asked, I assume in audible tone of voice and I suppose those who were attending to the particular question.

They could’ve heard it.

Carl W. Belcher:

Yes, Your Honor.

In fact —

Earl Warren:

Now, maybe the judge was making notes or he may have — that his mind on something else for the moment and that’s the reason he didn’t — he didn’t get the force of the question.

But — but are we entitled to assume from that the — that the jury would not or had it impress on their minds?

Carl W. Belcher:

Yes, Your Honor.

We — willing to concede the jury heard it, so as far as the matter of they’re being audible to jury — yes, we concede that it was audible.

Our question here — the — the gap here that I’m directing my attention to is that there was no answer to this question.

So that our — our first problem, the first problem is petitioner has to get over here, what should we infer?

Can you infer?

And I think he is essential to his case that you reach the inference that this jury inferred the truth of the matter, namely that in prior trial says petitioner, had not taken a stand because the information was never given — given it to him — given to them in any concise form.

They had to reach that inference.

And we suggest that he cannot overcome this hurdle which he hasn’t faced out it.

Namely, to show from the context that when the jury responded — the judge responded and the way he himself conducted himself, he cannot overcome that hurdle to make this inference that although the jury heard it, they inferred the truth of the matter, namely that this petitioner had not taken the stand in the prior trial.

Earl Warren:

Well, if a jury knew that a man had been tried twice before for the same crime and the prosecutor asked the witness, “Isn’t this the first time you’ve taken the stand?”

Isn’t it a natural inference for the jury that that prosecutor knows what he’s talking about and that he — he is intending to convey the impression that the man did not testify before?

Carl W. Belcher:

Your Honor, it might and I — I would agree.

In — in a normal setting, it would be a very logical inference that the jury would follow the leading form of a prosecutor’s question.

But this — this situation was very, very unique.

This witness was claiming to be incompetent, and he was being testing with a series of “do you recall and do you remember” questions.

And he was not — it was — it was a situation where I think it was obvious to everyone in the courtroom, the prosecutor is trying to get this witness to elucidate the fact that he is not incompetent.

He is — he is trying to cover up.

In that setting, the jury would — equally with the inference that the prosecutor has fed this witness the truth in his question, the inference would equally lie to the jury that the prosecutor has fed him a mistruth waiving to see or trying to get the witness to spit it out.

In other words, to say that, “No, sir, I took the stand in a prior trial.”

So that we think that in the unique setting of this case, the inference that I last described flows equally well with the inference which didn’t come forth.

If Your Honor please, assuming that the information was inferred by the jury that in the prior trials, this witness, the petitioner had not in fact taken the stand.

We point out that this case is further unique and that there was no comment on this matter, there were no instructions on this matter, there was no disruption of the trial proceedings at all even for the purpose of going to the stand.

So that here, the only the thing that we have is simply the bare knowledge, if the jury inferred it.

All they had was to bare knowledge that this witness had failed — the petitioner had failed to take the stand in the prior trial.

We think that the fact of the bare knowledge is not something which in and of itself is prejudicial.

It takes in addition to the bare knowledge of the fact, it takes some suggestions somewhere that the jury should take that bare bit of knowledge and make some adverse inference from a second inference.

Namely, the usual inference is that if he hadn’t been guilty, he would’ve the jurors in the other trials that he was not guilty.

He would’ve taken the stand and told them if he hadn’t been guilty, that’s the usual inference.

But from the bare fact here, the jury wouldn’t be stimulated to make that second inference, because it doesn’t come in a setting in which the adverse inference is elicited from the jury.

They would had to reach the fact itself by inference and to reach the problem of making it — feed into an adverse situation, they would’ve had to place the second inference in the series.

Assuming, Your Honor please, that this jury did make both inferences.

An inference indeed on top of an inference, we still say that there is no way in which this information viewed by the jury and viewed by the jury in an adverse light that is a headed desire.

He used it adversely to this petitioner could have in fact used it to resolve any of the issues which were before them in this trial.

This case is not the usual case in which the commission of the acts charged was really an issue for the jury.

The facts of this crime have been twice before the Court of Appeals and even though the cases were reversed, the Court writing the opinions in the two prior cases has gone out of its way to say that the facts of the crime, the commission of the acts constituting the crime in this case were almost incontestable.

Charles E. Whittaker:

Is —

Carl W. Belcher:

Indeed, they’ve never been contested.

Charles E. Whittaker:

Is it true that the only defense, the only issue was the sanity of the — of the petition?

Carl W. Belcher:

It is very true and Your Honor, those words that you have used to place your question to me were stated if I recall correctly by petitioner counsel.

And either a statement to the jury or the Court, I don’t recall exactly which but I can recall quite vividly on one occasion, he himself said, “We have only the one defense in sanity.”

Charles E. Whittaker:

Well, then how — I would like to be advised, could this question have any relevance or prejudice one way or the other to that issue of sanity?

Carl W. Belcher:

Your Honor, that’s exactly the Government’s position that it could not have been used at all, certainly not an information of the crime, because that issue is not here before this jury.

Charles E. Whittaker:

He was —

Earl Warren:

May I — may I ask the question along that same — same line?

If this man had been tried twice and had not taken the stand and had only taken it in this particular occasion and this question was — was asked after he had given the so called gibberish talk.

Carl W. Belcher:

Yes, sir.

Earl Warren:

Would the inference not be opened to the jury quite open that in giving that gibberish talk, an acting as he was that he was a complete faker, that there was no insanity in his maker and the fact that he had — had never tried that before, might suggest to them rather strongly that it was fakery and therefore, his defense of insanity was no good.

Carl W. Belcher:

Exactly in that area, I think Your Honor, must be the question of prejudice in this case.I — I think it cannot lie in any other error — area.

And in answer to that, if Your Honor please, I think it — it’s — it comes down to simply this.

This jury didn’t know what the truth of the matter was namely that the competency in — of this individual had been tested just prior to this trial.

He’d been declared competent and he’d been declared the malingerer by the trial court as upon the fact.

Jury didn’t know that.

They had an individual before him who put on this act that is involved here, so that the jury had before it a man by his action saying — I mean competent, I’m just — I just can’t answer — formulate answers to questions.

And the additional information that at prior trials, he had not taken a stand, so that the jury had before frankly the proposition that the man has been acting inconsistently, he took the stand before, he does — he didn’t take it before, he does take it now.

One way to solve that is that the jury says, “Inconsistency is the whole mark of the type of man which he has been displaying to us, namely a man which is not capable of any rational act.

So that here, it would be impossible for the jury to reach any satisfactory solution to whether the man was competent or not, it’s — it’s an inference we think which close normally from either.

The jury has to decide from some fact other than this fact, because the jury can’t say, go through the usual rationale that he would have the prior jury he was not guilty if he wasn’t guilty because here, the thing that breaks that line of thought is that we don’t have a rational man operating.

He tells us he’s not a rational man, thus we cannot attribute to him the rationality that he would’ve told the jury he was innocent if he wasn’t guilty.

The rationality or the alleged irrationality of this man breaks it so that jury could not come to the conclusion while he would’ve told the prior jurors that he was innocent, but for the fact that he’s guilty.

The jury in this case did have to resolve that issue.

They had this witness before him, who was putting on emissivity of evidence and the jury was attracted to that, they no doubt had the question and the forefront of those thinking.

Is he telling the truth that when he acts crazy or is he not telling the truth when he acts crazy?

So that here, the jury, in resolving that question would’ve had to drawn or what actually constituted the whole of the last three days of this trial, because that issue of whether or not he’s competent to stay in trial, and whether or not — indeed, he was putting an act before this jury, was a subject of much proof and many witnesses during the remaining days of this trial.

And it would be on the basis of this proof that the jury would reach the answer to what was the question, perhaps in the forefront of their thinking, namely is he competent or is he putting on an act.

From that question, they could answer.

And once they have answered that question, then they could perhaps answer the problem of whether he would’ve taken the stand in prior trial but with the fact that he was guilty.

Felix Frankfurter:

How many experts did the Government have at this trial?

Carl W. Belcher:

The Government had four experts, if Your Honor please.

Felix Frankfurter:

Four.

How many in the defendant?

Carl W. Belcher:

For the defendant, just one expert and that expert did not testify on the basis of his own knowledge.

Felix Frankfurter:

Knowledge —

Carl W. Belcher:

He had to be assisted by hypothetical question to —

Felix Frankfurter:

What — forgive me.

In the testimony of these five experts, four on one side and one on the other, was his conduct affirmative or negative?

At the prior two trials, that’s all accredited too, to their testimony.

Carl W. Belcher:

Test — his actions in the prior two trials is on the subject whether he testified or did not testify is not referred to.

Felix Frankfurter:

No.

Carl W. Belcher:

But the chronology informed of time from the time of the crime and dates which would correspond to the first trial and dates which would correspond to the trial and then to the third.

Felix Frankfurter:

Well, of course there’s lots in there about the prior trials in — introduced by the defendant himself.

Carl W. Belcher:

Yes, Your Honor.

Felix Frankfurter:

But I what I want to know, was there any relevance by the experts all for the Government and one for the defendant.

Was there any reference to his conduct — to his conduct at those two prior trials?

Carl W. Belcher:

No, Your Honor.

Felix Frankfurter:

What he did off a stand on which he — if he never was on or what he did as he sat there, any reference at all?

Carl W. Belcher:

No reference to this, no.

Felix Frankfurter:

But the subject matter of this — of this question that was — that’s in controversy here, remotely adverted before the District Attorney put this question.

Carl W. Belcher:

No.

Felix Frankfurter:

Won’t be —

Carl W. Belcher:

It was — it was not.

Felix Frankfurter:

— either before or after.

Carl W. Belcher:

No.

Not — not the subject now of whether or not this man testified in impertinent.

Felix Frankfurter:

No, but beyond that, was there any —

Carl W. Belcher:

The facts —

Felix Frankfurter:

Was any — were any questions put to the four experts regarding the way in which he met the prior trials?

Carl W. Belcher:

No, because the man of course didn’t take the stand and there was nothing from his demeanor, from the witness stand that they could’ve —

Felix Frankfurter:

No, but any reference as to this witnesses the — some of the witnesses, some during that period didn’t they?

Carl W. Belcher:

That’s correct.

Felix Frankfurter:

Well, did they say anything as to what he said or didn’t say regarding his defense?

Carl W. Belcher:

No, Your Honor.

Carl W. Belcher:

I know of no such information —

Felix Frankfurter:

In short, was there any reference in the testimony of the experts regarding his attitude toward the accusation for which he was on trial twice before.

Carl W. Belcher:

I recall of no such testimony, Your Honor.

In other words, Your Honor I can say that as far as reference to the matter of prior taking of the stand or not taking the stand, it didn’t come into this trial before the question here asked for the prosecutor.

It never came into this trial again after this question, asked by the prosecutor.(Voice Overlap)

Felix Frankfurter:

Would you say apart from the inferences that the argument that can be derived and are properly derived from the putting of the question?

Would you say — I know this is a conclusion I’m drawing but what you say in the context of trying to find out what kind of a person he was.

When he was put on the stand at the third trial, that this was an isolated discrete in episode unrelated to anything else that he was asked, that was put in evidence.

Carl W. Belcher:

That’s correct, Your Honor.

Except that it relates only in the context in which he came, namely, “Do you recall, do you recall, do you remember?”

That’s the only way that it has into this trial at all.

But if Your Honor please, the juries having these —

Potter Stewart:

It’s true isn’t it that the only real issue in all three trials was — whether not this man was mentally competent or insane?

Carl W. Belcher:

That’s correct.

Potter Stewart:

First trial, I understand was — had before the Durham case came down and the second two trials after it.

So the test of insanity changed in the interim.

But the only issue in all three trials was the insanity of this defendant.

Carl W. Belcher:

At no —

Potter Stewart:

Is that — am I correct in there?

Carl W. Belcher:

You’re correct, Your Honor and in so answering, I’m speaking directly with the — the opinions of the Court of Appeals even though they reversed, they said, “This evidence is overwhelming, it’s practically uncontested.”

So the only issue left was the question of mental competency.

It’s not mental competency but sanity at the time of the crime.

As we say, the question of competency whether this man was malingering or whether he was not — was gone into a great length before the jurors, by the experts and to lay witnesses as to whether he was competent to stand trial.

So the jury had all of that massive bit of information in which to solve that answer.

Once they had solved that answer whether he was malingering — malingering or whether he was indeed a witness that was incompetent, then they had the answer to the question of whether or not this man had tried to pull a fraud before their very eyes and if they answered that question as — I think the record would dictate, they almost had to answer, namely that this man was malingering on the witness stand then they knew that the petitioner had tried to pull a fraud and in that setting which we think, the jury would been very much impressed with.

The question that the prosecutor had asked three days previously had lost all of its significance because in a setting which the jurors had come to the conclusion that this petitioner had tried to fool them, they would not worry of what — with what we think takes at least two inferences to arrive at the conclusion that this man would’ve told prior jurors that he was innocent if in fact he had not been guilty.

Felix Frankfurter:

When you say that they had to reach that conclusion, that he’s a link — malinger, that he was an actor in short.

Can you say more than they — in fact, they did reach that conclusion on the basis of evidence, the substantiality of which is not challenged.

Carl W. Belcher:

That’s correct.

Felix Frankfurter:

When you say they had to, you at least draw a little bit on my credulity —

Carl W. Belcher:

I’m — I’m —

Felix Frankfurter:

— or my confidence in — in — the goaling out a death sentence to concededly a person as eloquent that this person was.

No doubt about that, is there?

Carl W. Belcher:

That’s correct, Your Honor.

I have overstated it.

My point is simply that the burden of the evidence on this issue of compensate to testify was certainly one sided in favor of the fact that he was competent to stay in trial.

Felix Frankfurter:

Is — have been — you — you’ve been the District Attorney’s office, considerable time, haven’t you Mr. Belcher?

Carl W. Belcher:

Eight years.

Yes, Your Honor.

Felix Frankfurter:

Well, that — just about covers the period of this — this case, doesn’t it?

Carl W. Belcher:

Yes, sir.

It does.

Felix Frankfurter:

Has there been any case that has had this kind of a history?

Eight years — this is something like eight years since this crime or since this homicide took place.

Three trials and now we’re here to decide whether there should be a fourth trial.

Anything comparable to that (Inaudible) of the District (Voice Overlap) —

Carl W. Belcher:

No, Your Honor.

This — this is — there are cases of some length in our history but this is longer than any I’m aware of.

The panel point that the Government makes, Your Honor — assuming that the jurors could someway — we haven’t been able to figure it out but if there’d be some way in which this jury could have used the information to a prejudice to this petition, then we say that the situation is a very attenuated one, remote impossibilities and we say that in situations such as that, even though this be a capital cases and death case that the usual rules are called into play here, namely that it becomes a duty in certain circumstances that there be a request for something less than a mistrial.

That here under these circumstances, a mistrial is not called for that there were three possibilities that were available which would’ve covered a wide spectrum of relief, that would have satisfied the situation.

If petitioner’s counsel didn’t want to renew the subject matter in matter to this jury, he had it within in his command to simply say to the Court, “Ask — tell the jury to disregard the last question and the last answer, not tell what the last question was or what the last answer was but tell the jury to disregard the last question and the last answer.”

We think that would obsess by the situation.

Felix Frankfurter:

But —

Potter Stewart:

Would you —

Felix Frankfurter:

— but — Mr. Belcher, if a District Attorney asked an obviously improper question, suppose the District Attorney hadn’t — had asked here, “This is the first time you’ve gone on the stand, isn’t it Willie?

“What?”

“This is the first time you’ve gone on the stand, isn’t it Willie?”

In any — but isn’t it a fact that you didn’t go on the stand and that now you are trying to fool this jury?

Suppose the District Attorney would so latently incompetent in words as to ask such a question.

You wouldn’t say defendant’s counsel had to say, “I move your order to strike that from the record.”

Carl W. Belcher:

No, Your Honor —

Felix Frankfurter:

But why do you say — why do you say this case —

Carl W. Belcher:

This case —

Felix Frankfurter:

— that is incumbent upon to do something.

Carl W. Belcher:

This case is different, for the very significant reason that the matter to the matter that this man did not take a stand and his prior trial was never put before this jury as a fact.

They had — they could reach it by inference.

They could reach through the leading form of the question.

If they went through a process of reasoning which we don’t think was likely in the setting which was matter was asked.

But coming —

Hugo L. Black:

Isn’t that a very common way for a lawyer to get a fact for a jury?

Carl W. Belcher:

Yes, Your Honor.

That’s true.

Hugo L. Black:

Just what he did.

Carl W. Belcher:

That’s right.

Felix Frankfurter:

Then, why —

Carl W. Belcher:

And —

Felix Frankfurter:

— do you say yes because if one thought — if one thought, he put this question in order to get that fact before the jury, one would have one reason?

If one says — if — if one thinks that that would be the — that was — that isn’t the implication of that question, you take another view.

Carl W. Belcher:

You Honor —

Felix Frankfurter:

Which I thought that —

Carl W. Belcher:

We — we view the matter —

Felix Frankfurter:

I thought that that was clear, that that’s — he did — in order to get that fact before the jury —

Carl W. Belcher:

If the —

Felix Frankfurter:

— I might go on one inference.

Carl W. Belcher:

If the motive of this prosecutor came through to this jury, then certainly, this jury is going to make all of the inferences that I say they won’t — wouldn’t make.

But here, the motive of the prosecutor, we submit, just didn’t come through.

The — the statement which he made to the Court was made at a (Inaudible) out in the hearing of this jury.

So that the jury would have to view this matter in its context, not that the prosecutor was trying to get subject matter across through them but the prosecutor was trying to trip this witness — petitioner up and make him reveal he knew something.

And in that context, the jury could equally come to the proposition that the prosecutor was misfeeding information or feeding bad facts for this man hoping that the witness would spit those facts out.

In fact —

Hugo L. Black:

Isn’t that a good deal of kinship between this question and a question in the civil case where damage suit is being tried against an individual carrying juror — the lawyer for the plaintiff says, do you have any insurance in this case?

Carl W. Belcher:

No, Your Honor.

I — I know the situation Your Honor describes —

Hugo L. Black:

Do you know of any States that don’t reverse a trial or —

Carl W. Belcher:

No, sir.

Hugo L. Black:

— or didn’t reverse a trial before that came in by such a question was asked?

Carl W. Belcher:

No, sir.

Charles E. Whittaker:

(Voice Overlap) —

Carl W. Belcher:

I know — I know of no — know of no such State but the — the proposition there is susceptible, we think of only one answer and that is that it makes a difference to ask the jurors how we’re going to resolve this case.

But here, the jury first asked to come — overcome this equally — well, we think it’s an equally balanced proposition.

They have to overcome the answer while the prosecutor is — is trying to give this man something that he will reject, that he will turn back in the prosecutor’s place.

Hugo L. Black:

I don’t understand what other inference, you say — if you say that it could be drawn from it?

I —

Carl W. Belcher:

The —

Hugo L. Black:

— I frankly haven’t seen it here.

Carl W. Belcher:

The inference that the prosecutor was feeding bad information to the petitioner, hoping as a last resort that this petitioner would disclose what in fact was true, namely that the man did testify in his prior two trials and that he was trying to get the witness to telling that he had in fact testified in the prior two trial.

Hugo L. Black:

Well, had he testified before?

Carl W. Belcher:

No, but the jury didn’t know that.

So that in taking the leading form of this question and trying to analyze it as to whether the man did or did not take the stand in the prior trial.

The jury had an equally balanced situation.

Hugo L. Black:

Well, now of course if he has testified before and has generally in trial, would occur, he would have gone on and asked that question, you would have known that’s why he did it.

But frankly, I can see no worthy reason here except that you want to show me he had testified.

Carl W. Belcher:

Well, as I say Your Honor, the —

Hugo L. Black:

And maybe —

Carl W. Belcher:

— as we view the —

Hugo L. Black:

— because I’ve had experience in trials and jury hadn’t and therefore, I have no right to draw there.

That should be true.

Carl W. Belcher:

Jury here would, I think, have been very sympathetic with the proposition that they tried to trip this witness up by feeding him bad information.

Potter Stewart:

Mr. Belcher, throughout your brief and somewhat now today in your arguments, you’ve — you’ve insisted that this error, if it was error, this possible error, certainly was not such as to warrant the granting of the motion for the mistrial which is the only motion made and which was denied.

But in the District of Columbia practice, when a motion is made for a mistrial and that’s denied, then it’s — is it up to the defendant’s lawyer to say, “Well, Your Honor, if you don’t grant a mistrial, will you please direct the jury to disregard the last question answered?”

Potter Stewart:

Doesn’t the judge on his motion, if he says, “No, I won’t grant a mistrial but — but I will tell the jury not to — not to pay any attention to the last question answered,” isn’t that the usual practice?

Carl W. Belcher:

Your Honor, the usual practice would be —

Potter Stewart:

Was it up to the defendant’s counsel to ask each step of the way, “Well, if you won’t do this do that.

If you won’t do that, do that.”

Carl W. Belcher:

Well here, there was a — a very critical thing, “Shall we open this matter backed up in the minds of the jury?

Should we just leave it like it is, which we think is better?”

Namely, that the jury made no impact on the jury, leave it with no impact to the jury.

Impasse it that it has no way of which it can affect this trial, that’s the Government’s position here.

If that be the situation, then it certainly was not error for this judge sua sponte to think it’s — itself about the other forms of relief.

Only District Court here would’ve had to have done in analyzing the question whether to inject itself and to the case at that point and suggest two counsel forms of relief, was to think, “Should I or am I permitted to infer that the jury will know that they are not to assume the truth of the facts stated in — in leading questions?”

That we think that it’s not such an unreasonable situation for — to assume if the District Court could say, “Well, this jury is going to know that those facts and — assumed in this question here or not true facts and if they have no firm fact in which they can proceed to do speculating.

In that setting, we think that there was no duty on the District Court to itself act in the situation and indeed, it properly did what it did here, namely to rely to a large degree.It did in fact to rely in totally on defense counsel and defense counsel’s analysis of the situation.

If he though it made no impact, in other words the District Court assuming to pass counsel, ask for a new trial, and if he can’t get a new trial, he want this trial left just like it is.

The District Court judge can, I think in this situation, rely upon that analysis of petitioner’s counsel.

Potter Stewart:

Here, did the District Judge indicate the question was not error at all?

He just — he simply overruled the motion for a new trial.

He didn’t indicate it was a correct —

Carl W. Belcher:

Didn’t indicate it was —

Potter Stewart:

— proper question.

Carl W. Belcher:

— correct and in answer to Your Honor’s last question, he didn’t indicate that he would deny or look with this favor on any other form of relief other than the mistrial.

Potter Stewart:

They didn’t volunteer.

Carl W. Belcher:

That’s correct.

But this read —

Felix Frankfurter:

(Voice Overlap) — you have to have addressed in three times, the judge quite stated and then — whereupon, would you read that — where upon the indicated question was read by the reporter, motion denied both for the record of discussion or for the record.

Mr. Belcher, on page 141, the Court — the jury will please keep in mind the admonition, you will be — is that just the admonition they shouldn’t talk with anybody?

Carl W. Belcher:

That’s correct, Your Honor.

And in the District of Columbia, that is a very standard practice of the jurors, almost after the first day, know when the — what the judge means by the admonition, namely not to talk about the case stand.

Felix Frankfurter:

And every time, they left them out for 10 minutes, he resists that.

Carl W. Belcher:

Even for a very short recess, recall my last admonition, don’t forget what I told you at the end — onset of this trial in such remark because I had to renew that thing.

For the reason stated, Your Honor please, we respectfully submit the judgement of the District Court and the Court of Appeals be affirmed.

Hugo L. Black:

May I ask you just one question?

Under the rule of the District (Inaudible) — if this — if — if you had put on the claim, District Attorneys had put on the claim and you had proven that this man had been there twice before and did not testify in his behalf.

Now, under the rules generally followed, would that had been given — could there have been a reason for a mistrial?

Carl W. Belcher:

Yes, Your Honor.

Hugo L. Black:

It would?

Carl W. Belcher:

It clearly would.

Hugo L. Black:

So it all depends on what is meant by this question.

Carl W. Belcher:

That’s correct.

Hugo L. Black:

What is — what is conveyed?

Carl W. Belcher:

That’s correct.

In other words — actually, I think the situation falls within the concession that the Government has made in this case.

In effect that if any way that the jury could’ve used this question to have resolved any of the issues in this case, then it was an improper question because the benefit to the Government was practically negligible, the damage or the possible danger to the man himself was great.

So that in a situation such as that, we concede that it should not have been error, asked that it was error to ask him that the problem here are just two-fold.

Is there any way — number one, is there any way that this question could’ve been used by this jury to have resolved it, and subsidiary to that, of course we — we point out that the fact of the matter wasn’t known to the jury and had to infer the matter and that the setting just wasn’t conducing to the inference that there was never any comment.

All they would’ve known was the bare fact.

But even if they had gone to that extent — even if they had known for instance that they were supposed to have used the inference they had arrived at in some way adverse to this man, there were just no way that they could’ve used it here to resolve the issues that they have before them.

If they could, then we concede the question should not been asked.

It was error to do so and should be reversed.

John M. Harlan II:

Suppose in this — you have this record invented.

It is now in the question appeared.

On the afternoon of the day, the case was submitted to the jury, what would be your position?

Carl W. Belcher:

Our position would be altered in some degree, but of course, our — our basic argument still has to be the same that even if this was the last question that the jury had heard, there was nothing they could do with it.

They just didn’t —

John M. Harlan II:

Of course that’s all argument (Inaudible)

But I — I appreciate the course of your argument that after you get all through it is — you’ve been — the reasonable man who can argue two ways on that.

Carl W. Belcher:

Well, we think in that, Your Honor —

John M. Harlan II:

You don’t undertake to say that’s it’s demonstrable beyond debate that the jury couldn’t have done (Voice Overlap) —

Carl W. Belcher:

Well, the only — the only way we can really say that, if Your Honor please, is — is the nature of the peculiar facts in this case.

They had an issue here which this case really didn’t help them to solve.

The basic question comes down to the problems of whether or not the matter of a prior failure to take a stand helps in any way elucidates, in any way helps anyone to determine whether a man is competent, presently on the stand or not.

Felix Frankfurter:

Mr. Belcher

Carl W. Belcher:

(Voice Overlap)

Felix Frankfurter:

— you can’t decide this case on just this question and that answer.

Indeed, I don’t think you can decide this case except on the basis of a 1500 pages of stenographic minutes of the trial.

Carl W. Belcher:

That’s correct, Your Honor.

We think that there just known union between those two propositions, failure to take a stand and incompetency witness that the record is big, that this issue was gone into for the next three days of trial and practical effect so that the jury just — it — we think it’s reasonable to say that on this record, this one question coming on the third afternoon of the third day of a six-day trial in which these peculiar facts were given so much attention by experts and lay witness day after day for the next three days, that this matter unanswered.

This question being unanswered as it is, could’ve — had no effect.

Hugo L. Black:

Suppose you’d had the same 1500 pages that you have and on the same — at the same moment, this question was asked, you didn’t put the clerk in the courtroom, and shown that this man had been tried twice and did not testify in his behalf, what would you say?

Carl W. Belcher:

How the — within our concessions, Your Honors, that this matter was brought to the attention of this jury in such a way that they were practically asked and there was — now we’re into the — the man to the prosecutor type thing.

The jury is practically impelled to use that bit of information but it’s not this case because —

Hugo L. Black:

I understand.

Carl W. Belcher:

— because they didn’t know the fact involved, because the setting was such that there was no adverse connotation put on it.

It was one of a series of memory testing questions.

And then as we say, even if they did have it, the jury would — well, they would have to improperly use this matter because there was no proper way that they could use it.

And they had come even to use it improperly, they come right up to the problem of, “Was he competent when he didn’t take the stand or not?”

And that was the big question on which they had their evidence for the next three days.

For this reason, we submit the judgments of the District Court and Court of Appeals be affirmed.

Earl Warren:

Mr. Carey.

Edward L. Carey:

I should like to suggest to the Court that I think it’s the most extraordinary position for the Government of United States to take.

When the prosecutor said to the defendant, “This is the first time you’ve taken the stand, isn’t it Willie?”

And Willie says, “What?”

and the question is repeated, the representation is again made.

Now, the Government’s brief, they say, “This is for the purpose of memory testing.”

They further suggest the prosecutor had the right to assume a false premise in order to mislead the defendant in answering a question which might destroy his defense of insanity.

I think that conduct has been condemned by this Court in the Berger case.

I think no Assistant — United States Attorney has the right to frame a question which isn’t based on factual and accurate evidence.

The Government says, namely his premise was false.

Well, I say, that is totally incorrect, that should never be done.Now, we get to the proposition.

They suggest that his — his behavior at the third trial was different than his behavior at the first two trials.

There’s no extrinsic evidence before this Court to so support that proposition.

Edward L. Carey:

If the Government wanted to support the proposition that his demeanor at the third trial was different than his demeanor at the first and second trial, there are ways or there were ways to have done that.

That was not done.

They could’ve subpoenaed or they could’ve brought in United States Marshals.

They could’ve brought in the clerk.

They could’ve found out other people who are present at the first and second trial.

Having not done that, I do say now, they not — cannot contend that his behavior at the third trial was inconsistent with his behavior at the first and second trial because his behavior was not in evidence at the first and second trial.

Our position gentlemen is that the risk of prejudice as indicated in the Grunewald case is too great for the prosecutor to have asked this particular question.

The Government concedes it has — of negligence — negligible importance of marginal materiality.

But haven’t taken that chance, they asked this man about the exercise of a constitutional right.

We say that’s wrong.

The Government continually insists that the jury paid no attention to this particular factual representation by the prosecutor.

Upon what do they premise that?

They say because the Court didn’t hear it.

What in fact that had upon the jury?

This Government cannot speculate because — and we went to the bench and the record will so indicate.

I made a motion for a mistrial.

And I said, I would like — I’m reading from the record, page 140.

“I don’t think this jury should be reminded of the fact, this is the first time he has taken the stand.

What happened in the other trials is no concern of theirs at all, it is highly prejudicial.”

That was the position we took then, that’s the position we take now.

The Court then Judge Letts said when I made that representation, “That wasn’t mentioned, was it?”

Mr. Carey, “He mentioned it.”

Mr. Smithson, “Read it.

I would like to have you read it.”

The Court, “The conviction?”

Mr. Carey, “No, taking the stand.

This is the first time you have taken the stand, Willie, isn’t it?”

Then the prosecutor says this — the Government now says the prosecutor didn’t mean what he said.

I presume the prosecutor is familiar with the Fifth Amendment which allows a man to exercise his freedom of choice.

I think that’s fundamental in the law.

Edward L. Carey:

It’s not an intricate question.

It’s not a conflict question.

I would suggest that every Assistant United States Attorney is familiar with the Fifth Amendment.

Smithson says, “I think that is a fact that the jury is entitled to know.”

In so many occasions, they refer to the record of the first case or the second case.

Mr. Carey, “I think it is highly prejudicial, I’d like to have it read.”

The Court, “Motion denied.”

Now, the Government says, when Mr. Smithson says, “That is a fact.”

What is he talking about?

The basis of my motion for a mistrial, the fact that the prosecutor said, “This is the first time you have taken the stand, isn’t it?”

The prosecutor follows up and said, “That is a fact which this jury is entitled to know.”

We can’t quibble about that.

There’s no ambiguity about it.

It reached with clarity as I see it because we knew what he meant and what he said.

My final — the Grunewald case and I should like to read this again.

The Court says, “I can think of no special circumstance.”

The concurrent opinion, “I can think of no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it.

The value of constitutional privilege is largely destroyed and persons can be penalized for relying on them.

It seems peculiarly incongruous and indefensible for courts which exist in that colloquy of the Constitution to draw inferences of lack of honesty from invocation of our privilege deemed worthy of enshrinement in the Constitution.

We contend now as we did on October, 1958 that I’ve consistently contended.

This representation of a fact, more a representation on the question was highly prejudicial and we contend this man was denied a fair trial.

Earl Warren:

Mr. Carey, I — I understand you were appointed by the District Court to defend this man because he was an indigent and your associates, Mr. Ackerly and Mr. Gillcrist also.

Edward L. Carey:

Yes, sir.

Earl Warren:

Well, it’s a great — great responsibility to defend a man for his life and this Court appreciates very much.

The fact that lawyers like yourself would undertake that great responsibility just as a public service and nothing else, so I want to express to — to you and your associates the — the appreciation of the Court for having — having done that.And I would like to say also to Mr. Belcher that we appreciate the very frank manner, very clear manner in which you have presented this matter to the — to the Court in a very diligent manner in which you have represented the interest of — of the Government.

We thank both of you.

It’s been a good argument.

Carl W. Belcher:

Thank you.

Edward L. Carey:

We did appreciate your remarks, Your Honor.