# Stewart v. United States (366 U.S. 1)/Dissent Clark

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* Opinion of the Court
* Dissenting Opinion Clark
United States Supreme Court
366 U.S. 1
Stewart v. United States (366 U.S. 1)
Argued: Feb. 21, 1961. --- Decided: April 24, 1961
Mr. Justice CLARK, with whom Mr. Justice WHITTAKER joins, dissenting.
It may be that Willie Lee Stewart 'had an intelligence level in the moronic class,' but he can laugh up his sleeve today for he has again made a laughingstock of the law. This makes the third jury verdict of guilt-each with a mandatory death penalty-that has been set aside since 1953. It was in that year that Willie walked into Harry Honikman's little grocery store here in Washington, bought a bag of potato chips and a soft drink, consumed them in the store, ordered another bottle of soda, and then pulled out a pistol and killed Honikman right before the eyes of his wife and young daughter. The verdict is now set aside because of some hypotheticals as to what the jury might have interred from a single question asked Willie as to whether he had testified at his other trials. In my view, none of these conjectures is sufficiently persuasive to be said to cast doubt on the validity of the jury's determination. Let us first review the setting of the fatal question in the trial.
The jury heard evidence for six days and from some 26 witnesses. The printed record here, which is only partial, consists of 400 pages. Willie Stewart's 'gibberish' comprises nine pages, representing perhaps some 20 minutes of testimony. It came during the third day of the trial. Mr. Carey, Willie's counsel, had placed him on the stand. He had asked on direct examination, 'Have you ever taken an oath?' Willie replied, 'Not that I knows of.' Willie was also asked by his counsel, 'Did you ever stand trial before this trial for the murder of Harry Honikman?' He answered, 'Well, you talk. You just go ahead and explain yourself. Have you ever stand trial? Go ahead. Don't ask me. I don't know.' Mr. Carey had not represented Willie on the other trials. Carey then asked, 'Were you ever tried for first degree murder before this time?' And Willie replied, 'I ain't never been tried. I ain't never been tried.' With these openings made by Carey, the Government, on cross-examination, asked the same questions. No issue is made of the examination relating to the fact of prior trials. Then came the question which has brought on this reversal: 'This is the first time you have gone on the stand, isn't it, Willie?' There was no objection. Willie answered, 'What?' And the Government's counsel again asked the same question in identical words. Still there was no objection. Willie answered: 'I am always the stand; I am everything, I done told you.' Thereafter Willie was excused as a witness, whereupon his counsel approached the bench and made his motion for mistrial. He asked for no curative instruction. Counsel had set his trap, lain in wait and was now demanding all or nothing. The demand for a mistrial was denied.
A government witness then testified that on the very night of the murder Willie was playing cards, that he exhibited the pistol used in the slaying to one of the players, that he left the card game before the hour of the murder, and that he returned to the card game after the hour of the murder and continued playing cards until about 2 a.m. This witness testified, 'he (Willie) seemed normal to me.' This was followed by testimony of an aide at St. Elizabeths Hospital and a guard at the District jail as to his conduct all during the period after his arrest up until a few weeks before his third trial. All said that he was perfectly normal; that he talked freely and understood the conversation; that he used a Bible and a dictionary, played bid whist and checkers and was a 'model' patient or prisoner. His jail file revealed that he mailed letters to his wife and sister-in-law, both of whom testified in his behalf, during April, October and November, 1953; July, August, September and October 1954; October, November and December, 1955; January, February and March, 1956; and October, November and December, 1957; and forwarded his wife $10 on each of two occasions, once in 1954 and the other in 1955. On several occasions he sent memo requests for conferences with jail officials. He asked for work to pass the time while in the District jail and actually put in many hours working day-in and day-out during the time of his custody. He first did cleaning, then plumbing, and finally was continually engaged in painting cell blocks throughout the jail. In 1957 his son was ill and he requested permission, which was granted, to visit him in custody. These witnesses all related that Willie 'acted normal' during this period. In fact, his only expert witness, a psychiatrist, testified that he could not decide in June 1953 when he examined Willie whether or not he was suffering from a mental disease. However, he stated that after talking with Willie's sister-in-law and hearing the story of Willie's background, he decided that Willie suffered a manic-depressive psychosis. The three government psychiatrists, two of whom examined him in March 1953, found him 'perfectly normal.' He answered their questions freely, went through various tests cooperatively and was found to be in 'average normal range of intelligence.' Each agreed that Willie was later malingering, i.e., feigning mental illness. This began shortly before his third trial. In addition, Willie had served two enlistments in the Army before 1953. On discharge he was found 'illiterate but mentally adequate.'
In the light of this testimony, I find the hypotheses of the Court, with due deference, entirely unrealistic, if not completely absurd. The crucial date was the time of the killing, 1953, not the date of the third trial, 1958. Despite this and the uncontradicted evidence, detailed above, of Willie's normality all during the period 1953-1958, the Court assumes that, from the asking of the question by the prosecutor, the jury believed that Willie had not testified in the two prior trials and therefore the jury 'might' have inferred that (1) Willie 'elected to feign this 'testimony' (gibberish) out of desperation brought on by his failure to gain acquittal' previously; or (2) the jury 'might have thought' Willie suffered from a mental disease but 'concluded that it is unlikely that a disease that had manifested itself only one out of three times for exhibition at trial was active at the occasion of the homicide'; or (3) the jury 'might have thought' that the condition was worsening as indicated by his action at the trial.
In the first place, it seems to me a violent assumption to say that the jury believed, solely from the Government's question on cross-examination, that Willie had not testified at the prior trials, especially since he had already testified in response to a query from his own counsel on direct examination that he had never been under oath. Moreover, in opening up the issue of prior trials, the defense counsel was obviously trying to leave the impression with the jury that they had not concluded in guilty verdicts. When he received answers such as 'you talk'-'You just go ahead and explain'-'Don't ask me,' he repeated the question. And the government counsel got like answers to his questions: 'I don't care how many occasions,' etc. And the answer to the question found prejudicial was first a 'What?' and upon its repetition, 'I am always the stand.' Using the majority's speculative approach, it is the more likely that the jury thought from those questions that the previous trials resulted in hung juries and never speculated upon the nice distinctions the Court makes as to Willie's demeanor. The uncontradicted evidence was that he was a faker. They needed no inference to so conclude. Discounting the speculative effects of his own counsel's question on oaths, and the Government's question on testifying, his answers themselves might well have led the jury to believe that he did testify on the previous trials. In any event, a simple instruction to the jury to consider this trial alone, to strike our of its minds and give no consideration whatever to any reference to a former trial or to any event or thing that might or might not have happened there, would have certainly been sufficient. But Willie did not ask for this. He wanted 'all or none' and the Court is giving him 'all.' But, returning to the hypotheses, whether or not Willie 'elected' to feign his testimony was not the question. The jury's concern was whether he did feign it, and the uncontradicted testimony was that he did so. Secondly, the only testimony as to Willie's activity on the very night of the killing was that of the card player. He stated that Willie 'seemed normal to me.' How the jury might infer from the prosecutor's question that Willie had a mental disease but it was inactive at the time of the murder is beyond me. Every witness testified to the contrary-save one psychiatrist-and even he said that his examination of Willie was inconclusive. The jury knew it had been five years since the killing and that both lay and medical evidence-uncontradicted-was that Willie was normal during all that period. Lastly, as to the disease worsening, that possibility had no relevancy to the condition in 1953 at the time of the killing.
I might add that, as I read the Government's brief, it conceded only that the question asked Willie 'was of but negligible importance to the government's case.' The sole issue, it said, was whether the question was prejudicial. This does not license the Court to find other and further concessions as to the Raffel and Grunewald cases. Nor do I find the Government contending, in its point that no prejudice resulted from the question, that 'the jury may not even have heard the improper question.' To so state its attitude makes the Government appear ridiculous. Its true position was that one could not assume, as the Court does, that 'the jury noted and focused attention on a question given so little emphasis that it was overlooked by the trial judge.' I add that in the light of the long trial, the uncontradicted evidence as to Willie's malingering and the fact that the question was never mentioned again during the remaining three days of the trial, the jury did not need, nor as a matter of relevancy was it able, to go through the mental gymnastics the Court supposes.
I note that the Court does adopt one point made by the Government. It says 'that it is regrettable when the concurrent findings of 36 jurors are not sufficient finally to terminate a case.' I, too, agree with that, but in view of the Court's approach I would add that its regret is tempered by its willingness to indulge in such hypothesizing as to effectively remove from our law the concept of harmless error in capital cases.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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