Stewart v. United States

PETITIONER:Stewart
RESPONDENT:United States
LOCATION:Huntington National Bank

DOCKET NO.: 143
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 366 US 1 (1961)
ARGUED: Feb 21, 1961
DECIDED: Apr 24, 1961

Facts of the case

Question

  • Oral Argument – February 21, 1961 (Part 2)
  • Audio Transcription for Oral Argument – February 21, 1961 (Part 2) in Stewart v. United States

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

    Earl Warren:

    Number 143, Willie Lee Stewart, Petitioner, versus United States.

    Mr. Carey.

    Edward L. Carey:

    May it please the Court.

    Willie Lee Stewart has been tried for first-degree murder on three different occasions in the District of Columbia.

    The first-degree murder conviction, as you gentlemen know, carries with it the mandatory death penalty.

    On the prior two occasions, when he was tried and convicted, the Court of Appeals for the District of Columbia reversed for two different reasons.

    The third time he was tried, Willie Lee Stewart took the witness stand.

    In prior two trials, he did not take the witness stand.

    After we had concluded our direct examination of the appellant, the prosecutor then began to cross-examine.

    During the course of such examination, the prosecutor secured no information or no effect of cross-examination from the appellant.

    He said to the appellant, he’s about to conclude his cross-examination, “This is the first time you’ve taken stand, isn’t it, Willie?”

    Willie says “What?”

    The prosecutor then again said, “This is the first time you have taken the stand.”

    He then concluded his cross-examination, he then approached to bench and asked for a mistrial.

    Felix Frankfurter:

    What was the reply?

    Edward L. Carey:

    “I don’t know what you’re talking about.”

    These are words to that effect, Your Honor.

    He didn’t — at the first time he said, “This is the first time you’ve gone on the stand, isn’t it, Willie?”

    I’m quoting now from page 140 of the record.

    Answer – “What?”

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

    Answer – “I am always the stand; I’m everything; I done told you.”

    That was the limit of the answer to the question.

    At the bench when we asked for a mistrial, we contended, the prosecutor had brought before the jury the fact that this man had not taken the stand on two prior occasions.

    We contended that the jury was not entitled to know that.

    Our contention was that this man was exercising a constitutional right and a statutory right not to take the stand.

    Our motion for a mistrial was denied.

    We renewed the motion at the completion of the trial.

    We further made it the basis for a new trial.

    We contend by such representation by the prosecutor — this is more than a question.

    Edward L. Carey:

    This is a representation or an assertion by the prosecutor.

    He said, “This is the first time you have taken the stand.”

    He stated it as a fact, and at the time we made the objection at the bench, the prosecutor said to Judge Letts, “This is a fact that the jury should know.”

    The fact is or the fact to which he was referring was the fact that this man had not taken the stand.

    We now contend that this man hadn’t exercised his constitutional right.

    The jury should not have been told of the fact that he had exercised such constitutional right on two prior occasions, because of that to be true, it makes a mockery of a constitutional right to take the stand or not take the stand.

    We further contend to this Court that that representation by the prosecutor not only breached or invaded the constitutional rights of the appellant and further suggested to the jury that this remark is susceptible of another meaning.

    This jury then was — it was suggested to this jury not only that this man not take the stand on two prior occasions when he was tried for first-degree murder but he might have been tried for other crimes in which time he never took the stand.

    We think it’s a strong susceptibility of interpretation by the jury that not only was this man a murderer as alleged in the indictment, but also had a criminal record and was tried for other crimes and at no time that he ever taken the stand.

    We argued this case in the Court of Appeals.

    Court of Appeals for the District of Columbia asserted by a 5:4 decision, affirmed the judgment of the lower court, and said that when this man took the stand, this became part of what had they — interpreter called “demeanor evidence.”

    Demeanor-evidence, they contended them, fell within the Raffel decision handed down by this Court and that there was an inconsistency, and if the question was relevant and competent, then the prosecutor has a right to ask this question.

    We contend as we did then, there is no inconsistency between his taking the stand of the third trial and has not taken the stand on the two prior occasions.

    Where is the inconsistency?

    If he had told a different story when he had taken the stand, either the first or second trial and gave a different story at the third trial, there would be an inconsistency.

    But how can you draw an inconsistency between his taking the stand and giving gibberish answers or indulging a meaningless behavior as the Court of Appeals for this Circuit said, “Because you cannot contrast his taking the stand with nothing when he wasn’t on the stand on the two prior occasions.”

    John M. Harlan II:

    What did the Government argue with anything in their summation to the jury?

    Edward L. Carey:

    The prosecutor said this.

    He said, “You heard it” and I’m trying to give it in substance, Mr. Justice Harlan.

    He said, “You heard the defendant testify.”

    And he said, his testimony amounted to “the whole sum of nothing.”

    John M. Harlan II:

    Is that in the record?

    Is — is the summation printed in the record?

    Edward L. Carey:

    No, it isn’t.

    John M. Harlan II:

    No, it isn’t.

    Edward L. Carey:

    (Inaudible) I don’t think it is Your Honor, but I can recall it very specifically.

    He said as “the whole sum of nothing.”

    So we contend, and as we did in the Court of Appeals that this case did not fall within the Raffel case.

    There is no inconsistency.

    The question had no relevancy or competency.

    Edward L. Carey:

    It didn’t go to its credibility.

    He didn’t deny or he didn’t affirm killing the decedent.

    In fact Justice Burger identified his behavior as bizarre.

    Potter Stewart:

    What was the — what was the defense here?

    What was the theory of the defense?

    Edward L. Carey:

    Substantially the defense was insanity, Mr. Justice Harlan.

    In fact, I think all of the judges who reviewed this case have concluded that factually, there was no defense because you had eye witnesses, you had a ballistic expert, and you had a fingerprint expert.

    Charles E. Whittaker:

    You say substantially, it was insanity.

    Edward L. Carey:

    No.

    it was insanity, I — almost in total, I suppose, it would be a better expression to use, Your Honor.

    Charles E. Whittaker:

    It wasn’t in the other defense.

    Edward L. Carey:

    Well, I won’t exclude the fact that we did cross-examine some of the government witnesses.

    We cross-examined the daughter of the decedent, at least at the third trial.

    We weren’t involved in the first and second trial.

    And I think anytime you’d cross-examine a witness, you do create — attempt to create some doubt of facts.

    Now, it maybe in minimal factual defense but I think there was a factual defense.

    Felix Frankfurter:

    You didn’t cross-examine or contest the testimony of the mother who was a confirming witness for the daughter, did you?

    Edward L. Carey:

    Your Honor, at the third trial — the mother had died between the second and third trial.

    Felix Frankfurter:

    Well, but — but wasn’t there — but she was a witness in the earlier trial.

    Edward L. Carey:

    Yes she was, Your Honor.

    Felix Frankfurter:

    And her deposition was taken, I mean, the – her testimony was introduced, wasn’t it?

    Edward L. Carey:

    Yes.

    Felix Frankfurter:

    At the third trial?

    Edward L. Carey:

    Yes, Your Honor.

    Felix Frankfurter:

    Well, was she — was the testimony which was allowed to be introduced before they introduced a challenge of a testimony on the fact that confirming a daughter’s eye-witness testimony?

    Edward L. Carey:

    Yes.

    Felix Frankfurter:

    Well, then the —

    Edward L. Carey:

    It was an intent —

    Felix Frankfurter:

    I’m asking the question that Justice Stewart asked and Justice Whittaker asked.

    Was the — were there really any contest over the commission of a homicide?

    Edward L. Carey:

    I would say in answer to that, no, Your Honor.

    Felix Frankfurter:

    And the case overturned on the defense of insanity.

    Edward L. Carey:

    That’s right.

    But Just — Justice Whittaker asked me if there’s any factual defense.

    I think if I’d say, there was none, it’d be quite inaccurate, because I think when you cross-examine, you do indicate some doubt insofar as the witness’s credibility is concerned.

    Felix Frankfurter:

    You’ve cross-examined some policemen too, didn’t you?

    Edward L. Carey:

    That is correct Your Honor.

    Felix Frankfurter:

    Just to show up that they are not as accurate as they think they are.

    Edward L. Carey:

    That is correct.

    We all —

    Felix Frankfurter:

    But they’re not relevant, not on essential matters, really.

    Edward L. Carey:

    Well, I think too, we probably were allowed a rather — wide gamut under the first-degree murder, I think that’s generally true because —

    Felix Frankfurter:

    Well, I’m not — I’m just trying to find out what the police had described.

    Potter Stewart:

    It’s always possible, at least you know we theoretically hold that the jury simply isn’t going to leave anything the prosecution witness —

    Edward L. Carey:

    That is correct because if they give you supinely stop and accept the testimony as verbatim, then I think you might just — we will not go in the courtroom.

    And I think there’s some serious questions as to whether these people, everything they said might have been totally correct.

    I think substantially what they said was correct.

    Hugo L. Black:

    What was the plea?

    Edward L. Carey:

    What is that Your Honor?

    Hugo L. Black:

    What was the plea?

    Edward L. Carey:

    The plea?

    Hugo L. Black:

    What did he plead?

    Edward L. Carey:

    Not guilty.

    Hugo L. Black:

    Did he plead not guilty and not guilty by a reason of insanity or does that and — did that —

    Edward L. Carey:

    Here, you enter a general plea.

    It’s not a specific plea.

    Hugo L. Black:

    He pleaded not guilty to the police.

    Edward L. Carey:

    That is correct.

    Hugo L. Black:

    (Inaudible)

    Edward L. Carey:

    That’s right, Mr. —

    Felix Frankfurter:

    Did you make an opening to the jury?

    Edward L. Carey:

    Yes, Your Honor.

    Felix Frankfurter:

    And in that, opening what did you say, you can plan — what defense did you —

    Edward L. Carey:

    Insanity primarily.

    Felix Frankfurter:

    That you (Inaudible) insanity.

    Edward L. Carey:

    That is correct.

    Hugo L. Black:

    Is that in the —

    Edward L. Carey:

    If our position was —

    Hugo L. Black:

    Is that in the record, your opening statement?

    Edward L. Carey:

    I don’t think it is, Mr. Justice Black.

    Felix Frankfurter:

    It has only a very small fraction of the five-day trial, isn’t it?

    Edward L. Carey:

    That is correct.

    Felix Frankfurter:

    Not a small but a fraction.

    Edward L. Carey:

    That is correct.

    John M. Harlan II:

    Was the summation stenographed before they transcribed?

    Edward L. Carey:

    Yes.

    John M. Harlan II:

    Are they part of the record in the Court here, the unprinted record?

    Felix Frankfurter:

    They are.

    Edward L. Carey:

    Yes they are, Mr. Justice Harlan.

    See our position was that under the Durham rule, and my defense was that this man was a mental defect.

    He didn’t — had an intelligence quotient of 65.

    We contend that under the Durham rule that there was a cause of relationship between the mental defect of those of the defendant and the crime which occurred.

    His intelligence quotient was 65.

    We had psychiatric testimony to the effect that he was a moron.

    Now, we proceeded on that premise.

    Now, the Court of Appeals contended this man was malingering when he took the stand, when indulged in this peculiar behavior that it was bizarre and peculiar symptoms but that this was an attempt to fool the jury.

    However, even if that be true, it was our position that this jury should never have known of the fact that this man didn’t take the stand on two prior trials, nor should it also ever be suggested to them that he might have been involved in other offenses.

    And the record will reflect that he hasn’t convicted of other offenses on prior occasions.

    The dissent of the Court of Appeals says that this case comes within the ruling of either Raffel or Grunewald.

    They could — Judge Fay said, there was no inconsistency between his behavior at the third trial, and his failure to take the stand.

    Edward L. Carey:

    Judge Fay further said that this man, having exercised a constitutional right, came within the ruling of the Grunewald case, that the jury should never have known of that particular fact.

    On — in the brief filed here and in the Supreme Court, the Government takes an entirely different position than the opinion written in the Court of Appeals.

    In fact, I think it’s further suggested, they have repudiated the ruling of the five judges in the District of Columbia Circuit.

    They say that this question was framed only for the purpose of memory testing to see if this man can remember, had he gone to school, was he married, had any children, and other of that sort.

    They didn’t put him on the basis of demeanor-evidence.

    They said the prosecutor have the right to phrase these questions for the purpose of testing the memory of the defendant when he took the stand hoping that he might have slipped if he were malingering and said something which would persuade the jury that this man was not telling the truth, it was acting or faking his insanity.

    However, they further, in their brief, say this that even if it was wrong, they concede the question shouldn’t have been asked because they said the question was of negligible importance.

    At best, it had margin materiality that is prohibitive, the value was not sufficient, because of the danger inherent and reminded the jury that this man had exercised his constitutional right.

    However, in attempting to justify that position, the Government says there was no impact upon the jury because when the question was asked, we approached the bench, the presiding judge said, “What was it?”

    He didn’t hear the question apparently.

    They didn’t try to analogize between these situations, the fact that the Court wasn’t aware of what the question was, the sequitur is then the jury didn’t hear the question.

    Well, I don’t have to labor the obvious but I was sitting in the courtroom as was the prosecutor, as was the Court reporter.

    The jury as you know was at short distance from the participants in the crime.

    Now, I was further removed as was the prosecutor and as was the court reporter from the defendant or from the prosecutor when he made this observation.

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

    Another suggests that because the Court didn’t hear the question, it then followed that the jury didn’t hear the question, is neither here nor there.

    I say the fact that we hear it.

    It must be assumed there’s no evidence in this record, which would demonstrate that the jury never heard that particular question.

    So not having heard that the Government now says, “It couldn’t have been prejudicial to this defendant.”

    However, they alleged, go on to say that if this question was heard by the jury, its prejudice was minimal and it could have been cured by an instruction from the Court.

    We say that that question could not have been cured by an instruction from the Court, because I think when you ask a witness or a defendant, “This is the first time you’ve taken the stand” I suggest the impact upon that jury is tremendously prejudicial.

    It’s not insignificant, it’s not minimal, and it’s not maneuvered.

    Potter Stewart:

    I want to be just sure Mr. Carey that I understand your point as to where the prejudice in here is in the questions.

    Edward L. Carey:

    Where is it in here?

    Potter Stewart:

    Yes.

    Where — where is it?

    How — how was — how was the defendant in this case with this kind of a defense prejudiced by asking of that question.

    Edward L. Carey:

    I say it’s prejudiced in several reasons.

    Well, this man was first tried in 1953.

    The Durham rule was not the rule in the District of Columbia.

    Edward L. Carey:

    That opinion came down in 1954.

    This man could not come within the rule or in the Durham rule, and a mental defective could not raise the defense of insanity.

    But in 1954, the Durham rule came down.

    In the trial in 1955, he was entitled to rely on the decision of the Court of Appeals on the Durham case as he was when we tried in 1958.

    Potter Stewart:

    1955 was the second trial?

    Edward L. Carey:

    That is correct.

    Potter Stewart:

    And 1958 is this trial.

    Edward L. Carey:

    That’s right.

    Now, this jury was never told that a mental defective came within the ruling of the Durham rule because they couldn’t have been in 1953.

    Then that jury might have assumed the fact that he is now claiming he’s a mental defective.

    He also claimed he’s a mental defective in 1953 when he had no right to raise such a defense.

    So then that jury might have assumed that this man had that same consistent defense on three particular trials and it wasn’t true, because — and had he been a mental defective, he would have exhibited at the first trial which he couldn’t do.

    Potter Stewart:

    Still, I’m not entirely sure — probably I am being too smutty, maybe during lunch time, you can think of a way to straighten me on.

    So I won’t waste any more of your time then.

    Edward L. Carey:

    Well, I — I thought you —

    Earl Warren:

    (Voice Overlap).

    Go right ahead.

    Edward L. Carey:

    Now, if the only inconsistency we contend occurred in this particular trial was the inconsistency in taking the stand at the third trial and not taking the stand at two prior occasions.

    We contend that is not the type of inconsistency which was intended to be the ruling of the Raffel case.

    In the Raffel case, as this Court knows, at the first trial that the prohibition agent testified that when he arrested Raffel in this ginmill or whatever it was, that Raffel admitted to him that he was the owner of that particular illicit establishment.

    At the second trial, Raffel took the stand and he denied that he ever made such statement to the prohibition agent.

    So there you have a very definite inconsistency in evidence.

    Once you have a man not doing anything and this allegation is made, when he takes the stand at the second trial and he denies that this is not so.

    So there you have a very definite inconsistency.

    Earl Warren:

    We’ll recess now Mr. Carey.