JAMES A. ROBINSON, JR., PETITIONER V. UNITED STATES OF AMERICA

   No. 88-612

   In the Supreme Court of the United States

   October Term, 1988

   On Petition For A Writ Of Certiorari To The United States Court Of
Military Appeals

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the Court of Military Appeals (Pet. App. 1a-23a) is
reported at 26 M.J. 361.  The opinion of the Air Force Court of
Military Review (Pet. App. 24a-44a) is reported at 21 M.J. 937.

                             JURISDICTION

   The judgment of the Court of Military Appeals was entered on August
15, 1988.  The petition for a writ of certiorari was filed on October
12, 1988.  The jurisdiction of this Court is invoked under 28 U.S.C.
(Supp. IV) 1259(3).

                          QUESTION PRESENTED

   Whether the trial judge erred by admitting into evidence statements
made by petitioner six months after he was interviewed under hypnosis.

                               STATEMENT

   Following a general court-martial at Kapaun Air Station in West
Germany, petitioner, a member of the United States Air Force, was
convicted of rape, forcible sodomy, and premeditated murder, in
violation of Articles 120, 125, and 118 of the Uniform Code of
Military Justice (UCMJ), 10 U.S.C. 920, 925, and 918.  He was
sentenced to confinement for life, a dishonorable discharge, a
reduction in rank to airman basic, and the total forfeiture of all pay
and allowances.  The convening authority approved the findings and
sentence, except that he reduced the forfeiture of pay.  The Air Force
Court of Military Review affirmed the findings and sentence.  The
Court of Military Appeals affirmed.

   1. In the early morning hours of April 14, 1982, the battered,
semi-nude body of Senior Airman Nancy Nittler was found in the
building of her duty station at Ramstein Air Base in West Germany.
Tr. 4094-4096.  On the night of her death, she had served as the Civil
Engineering night dispatcher, handling evening and nighttime emergency
calls.  Tr. 693-694.  The forensic examination of her body showed that
she had been beaten, strangled, raped, anally sodomized, and
ultimately killed by two stab wounds to her neck, one of which severed
her jugular vein.  Pet. App. 25a-26a;  Tr. 766-785, 3447-3459,
3470-3518;  PXs 15-26.

   Two days later, petitioner told a co-worker that he had driven past
the crime scene on the night of the murder and had seen "some guy
behind the window." Petitioner made clear that the person he had seen
was a Sergeant Banville.  Tr. 931-935.  Later that day, petitioner
approached agents of the Office of Special Investigations (OSI) who
were investigating the murder.  Petitioner volunteered that he had
driven by the victim's building and had seen a tall, shadowy male
figure wearing a dark shirt standing in the service desk area.  Tr.
949-950.  Petitioner mentioned that the person he had seen could have
been an Airman Curtis.  Tr. 950.  Petitioner agreed to undergo
hypnotic interviews with the OSI on April 27 and 29 to refresh his
recollection of the events.  Pet. App. 4a-5a, 27a-28a;  23 Tr. AX
(unnumbered), at 5.

   Prior to the first session, petitioner gave a brief account of what
he saw:  a slim white male making a swinging motion with his arms,
while his body was leaning into the effort.  23 Tr. AX (unnumbered) at
6.  During the first hypnotic session, petitioner said that the person
he saw through the window was swinging a pipe and was tall, white,
with a slim build and light-colored hair.  Id. at 19.  He also said
that the person he saw was wearing a red or green plaid shirt, weighed
about 150 pounds, and was approximately 5'6" tall.  Id. at 19, 21, 27.
 On April 29, during the second hypnotic interview, petitioner added
that he could see another figure in the room who was smaller than the
first man.  Id. at 39.  Petitioner stated that he saw the larger man
strike the shorter one, and that, based on the fact that his hair
protruded, the shorter man looked like one Captain Fuller.  Id. at 48.
 Petitioner also said that the object that the assailant used to
strike the victim resembled a microphone.  Id. at 49.  After the
hypnotic portion of the interview was completed, petitioner stated his
opinion that the assailant looked like the victim's husband, but was
taller and heavier.  Id. at 54;  Pet. App. 5a, 28a.

   One evening approximately two months later, petitioner walked into
the service call desk area and spoke to a co-worker.  Tr. 984-985.
Petitioner was extremely upset and emotional at the time.  He said
that he felt terrible about Nancy Nittler's death, and he mentioned
that he wanted to talk to the OSI about it.  Tr. 989.  The OSI was
summoned.  As he waited their arrival, petitioner said that a Staff
Sergeant Brownell had killed Nancy.  Tr. 991.  Petitioner related that
Brownell and the victim had been having an affair and that on the
night of the murder he saw a black man with kinky hair making striking
motions in the service call desk area.  Tr. 992.  When the OSI agents
arrived, petitioner told them that he had seen a late model yellow
Buick Electra in the parking lot.  Tr. 1016.  Petitioner stated that
he had purposely withheld that information from the OSI because he
wanted to find the owner of the car and "lure him out." Ibid.  Four
days later, petitioner gave the OSI a written statement (PX 28), and
he also explained that he had lied to the OSI agents during the
hypnotic session about seeing figures through the window.  He said
that he had actually seen the image as a "vision" 15 minutes after he
had returned home.  Tr. 1020-1021.  In that "vision," petitioner said,
he had seen the victim being strangled and had seen blood on her face
and forehead.  Tr. 1021;  Pet. App. 6a-7a.

   During the next two months, petitioner volunteered information to
the OSI and co-workers on several other occasions.  Each time,
petitioner gave a slightly different version of what he did and what
he saw on the night of Nancy Nittler's murder.  Pet. App. 15a.  On
September 15, petitioner approached his supervisor, Captain Fuller, in
an intoxicated and distressed state, and he implied that he could have
prevented the crime or could identify the murderer.  Tr. 1046-1048.
Captain Fuller, petitioner, and two others then returned to the scene
of the murder to re-enact the crime.  Tr. 1049-1052.  Based upon what
he saw at the scene of the crime, Captain Fuller concluded that
petitioner could not have seen what he said he saw on the night in
question.  Tr. 1055;  Pet. App. 7a, 28a.

   Two OSI agents ultimately interviewed petitioner as a suspect on
October 19.  Tr. 1082, 1092-1093.  During the initial part of the
interview, petitioner related the same story that he had told them
previously.  Tr. 1084-1092.  As the interview progressed and the
agents challenged petitioner's story, however, that story began to
change.  First, petitioner admitted that he had actually walked up to
the window, peered inside the room, and witnessed the events.  Tr.
1094-1095.  Later, after being confronted with the fact that the OSI
had seized the jacket he wore that night, petitioner admitted that he
had entered the building.  Tr. 1102-1103.  Petitioner said that he had
seen the victim lying on the floor and that an unknown assailant had
shoved him to the floor.  Tr. 1103-1104.  Petitioner then left the
building, waited at his car, and re-entered the building 15 minutes
later.  Tr. 1104.  When he returned, the victim's body was no longer
in the room.  Petitioner went to the service call area and
straightened up the room.  Tr. 1105-1107.  He then followed a trail of
blood to another room and saw the body.  He described in detail the
position and appearance of the victim.  Tr. 1108.  In fact, petitioner
corrected one of the agents in describing the position of the body.
Tr. 1108-1110, 1224-1225.  Later, when confronted with the fact that
sperm had been found in the victim's body and that the autopsy showed
that she might have been alive when she was raped, petitioner admitted
that he had partially disrobed and then had sexual intercourse with
her while she was lying on the floor.  Tr. 1115-1118.  As the
interview progressed, petitioner gave varying explanations about how
blood could have gotten on his jacket (Tr. 1118-1122), and he
ultimately concluded that he was "sixty to seventy percent" certain
that the person who shoved him to the floor was one Ron Stenson, a
co-worker.  Tr. 1123-1124, 1242, 1245-1246;  PX 32.  Petitioner said
that after having sexual intercourse with the victim, he left the
building, drove home, opened a can of beans, sat down in a chair and
watched television, went to bed, and had "a good night's sleep." Tr.
1127-1128.  The interview then ended.  After shaking hands with the
interviewing agents and saying that he felt better after talking to
them, petitioner agreed to return the next day and continue the
interview.  Tr. 1128-1129, 1133.  Petitioner did not return the next
day, however;  instead, he saw a psychiatrist and ultimately reverted
to his original story in which he said that he had merely driven by
the building where the murder took place.  Tr. 1129, 1784.

   2. At trial, the defense moved to suppress petitioner's October 19
statements on the ground that they were involuntary and unreliable.
Tr. 4138-4139;  AX 17.  As part of that claim, the defense alleged
that the April 1982 hypnotic interviews had led petitioner to believe
in events that were not true and had caused him to become vulnerable
to the "suggestiveness" of the OSI agents who interviewed him six
months later.  Tr. 4138.  Based on an extensive evidentiary
presentation, the trial judge found that petitioner's October 19
statements were freely and voluntarily made.  Pet. App. 45a-46a.  The
trial judge also found that the hypnotic interviews in April had no
effect on petitioner's October statements.  Ibid.; Tr. 4170-4171.

   3. The Air Force Court of Military Review affirmed.  Pet. App.
24a-44a.  After examining the record, the court agreed with the trial
judge's findings that petitioner's October statements were voluntary,
were not affected by the April hypnotic sessions, and were
sufficiently corroborated to support his conviction.  Id. at 38a-43a.
The court also rejected petitioner's argument that post-hypnotic
statements should be inadmissible per se, or that they should be
admissible only if rigorous safeguards to assure reliability are used
during a hypnotic session.  The court observed that other courts had
adopted such procedures only for determining the admissibility of
statements made while a witness is in fact undergoing hypnosis, and
not for determining the admissibility of statements made several
months afterwards regarding matters that were neither discussed nor
revealed during hypnosis.  Id. at 36a.

   4. The Court of Military Appeals also affirmed.  Pet. App. 1a-23a.
After scrutinizing the various factors showing that petitioner's
October statements were reliable and noting that the defense was
allowed to present expert testimony to the contrary (id. at 14a-15a,
21a-23a), the court found that the trial judge had properly admitted
petitioner's October statements.

                               ARGUMENT

   The sole question petitioner presents is whether there should be a
per se rule of exclusion for hypnotically refreshed statements, or a
rule demanding that rigorous procedural safeguards be used during a
hypnotic session before hypnotically refreshed statements can be
introduced at trial.  This case does not present that question,
however, because the only statements introduced by the government at
trial were not affected by the hypnotic sessions.

   The prosecution did not introduce the statements petitioner made
during the April 27 and 29 hypnotic sessions.  On the contrary, those
statements were introduced by the defense (Tr. 1528-1529, 1679-1718).
The government did introduce the statements petitioner made during the
October 19 interview, but petitioner was not under the influence of
hypnosis at that time.  The trial judge (Pet. App. 46a), the court of
military review (id. at 39a-43a), and the Court of Military Appeals
(id. at 22a-23a) found that the April hypnotic sessions had no effect
on petitioner's October statements to the OSI.  In so ruling, those
courts relied on several considerations:  of time (about six months)
elapsed between the hypnosis and petitioner's later statements;  there
was a great disparity in the substance of the two statements;  the
hypnosis was conducted by a highly qualified expert under
circumstances that minimized the likelihood of improper suggestion;
petitioner did not display a willingness to accept blindly the agent's
suggestions during the October interview, and in one instance
petitioner convinced one of the agents that the agent's account of the
crime was in error and that petitioner was correct;  and, finally, one
expert even expressed doubt that petitioner was in a hypnotic state
during the April sessions.  Id. at 22a-23a;  Tr. 1659-1660.  Those
concurrent findings do not warrant review by this Court.  See, e.g.,
Goodman v. Lukens Steel Co., No. 85-1626 (June 19, 1987), slip op.
7-8;  United States v. Doe, 465 U.S. 605, 613-614 (1984).

   Those findings are also amply supported by the record.  In fact,
even the expert witnesses called by the defense could not conclude
that the April hypnotic sessions left an impression on petitioner and
caused him to make false statements six months later.  Dr. Martin
Orne, one of the nation's leading experts on forensic hypnosis,
conceded that there was no direct connection between the April
hypnotic sessions and petitioner's October admissions (Tr. 2478), and
that it would be unique in his experience for hypnosis to cause
someone falsely to confess six months afterwards.  Tr. 2317,
2431-2432, 2463-2464;  Pet. App. 13a & n.7.  Another defense expert,
Dr. Russell Hibler, stated that he saw no connection between the April
hypnosis and petitioner's October statements.  Tr. 3752.  The third
defense expert witness, Dr. Neil Hibler, also stated that he could not
envision any such connection.  Tr. 1719.  Petitioner did not testify
and offer any such claim.  Finally, the excerpts cited by petitioner
(Pet. 6) from the testimony of other defense witnesses do not support
his claim that the April hypnotic sessions had an influence on him in
October.  /*/ The trial court therefore did not err by admitting
petitioner's October statements.

   The cases petitioner cites address an issue very different from the
one presented in this case.  The question of the admissibility of a
witness's hypnotically refreshed testimony typically arises when the
witness to a crime (often the victim) testifies at trial after a
hypnotic session and identifies the defendant as the perpetrator.  In
such a case, the arguments commonly offered by the defense to exclude
the witness's testimony are that the hypnosis has rendered the
witness's testimony unreliable, and that hypnosis prevents the
defendant from effectively cross-examining the witness.  See, e.g.,
Harker v. Maryland, 800 F.2d 437, 441-443 (4th Cir. 1986).

   In this case it was petitioner who was hypnotized, and he is
attempting to exclude his own admissions made six months after a
hypnotic session in which he voluntarily participated.  There was,
therefore, no impairment of effective cross-examination of any
witness, and petitioner was free to explain his incriminating
admissions as being the product of his earlier hypnosis.  Once the
courts found that petitioner's admissions were voluntary and
sufficiently reliable to be admitted, the question whether the
admissions should be credited or not was properly left to the trier of
fact.  Accordingly, this case does not provide a suitable vehicle for
addressing the broad questions presented by petitioner regarding the
use at trial of a witness's hypnotically refreshed testimony.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   JOE R. LAMPORT

      Col., OJAG, USAF

   ROBERT E. GIOVAGNONI

      Lt. Col., OJAG, USAF

   JEFFREY H. CURTIS

      Maj., OJAG, USAF Appellate Government Counsel Government Trial
      and Appellate Division

   NOVEMBER 1988

   /*/ Dr. Mareth did not testify that petitioner was still under the
influence of hypnosis when he spoke with the OSI agents in October.
In fact, Dr. Mareth gave three possible explanations why petitioner
may have given the October statement to the OSI agents:  (a)
petitioner was guilty and made up the story to explain the facts he
believed were known to the OSI;  (b) petitioner was a shy person and
made up the story to appear self-important;  or (c) petitioner saw the
murder, felt guilty about being unable to prevent it, and made up the
story to ease his conscience.  Tr. 3084-3085.  The testimony by Dr.
Hoyer that petitioner quotes (Tr. 3303) also does not attribute
petitioner's statements to the April hypnosis.  In fact, Dr. Hoyer
admitted that he had "very little experience and very little training
in hypnosis" (Tr. 3260), that he relied on what Dr. Orne, one of the
defense experts, had told him (ibid.), that he "never meant to imply
that the process of the investigation, the hypnosis, et cetera, would
just fill in the gaps in the memory alone" (Tr. 3275), and that he
developed a hypothesis explaining petitioner's October statements
before he spoke with Dr. Orne.  Tr. 3230.  Dr. Hoyer's explanation for
petitioner's statements was that they may have been the product of
three factors:  (a) petitioner was intoxicated at the time of the
murder;  (b) petitioner suffered from alcoholic blackouts and may have
attempted to fill in the details of what he saw that night;  and (c)
petitioner believed that he was capable of "psychic" experiences.  Tr.
3222-3225.  Dr. Hoyer admitted, however, that the sanity board, of
which he was a member, "did not make any definitive statements or
arrive at any definitive conclusions as to (petitioner's) state of
mind at the time (of the October statements)." Tr. 3222.