Earl Warren: Number 53, Alvin R. Campbell, Arnold S. Campbell and Donald Lester, Petitioners, versus United States. Mr. Louison, you may proceed with your argument.
Melvin S. Louison: Mr. Chief Justice, may it please the Court. This case arises out of the so-called Jencks statute, 18 U.S.C. Section 3500, and actually presents what we submit to be a novel question, partially perhaps due to the newness of the statute. The question presented, may it please the Court, is whether or not, after a foundation for the admission of a statement as defined by the statute is laid on cross-examination, is the production of that statement thereby excused when the prosecutor states that the original document is no longer in existence and cannot be produced. And further, that the only statement in the possession of the Government is a report of the FBI agent in charge of the interview which does not meet the definition of the -- of a statement within the statute as laid down by this Court in the Palermo decision. Now, actually, this case arises out of indictments for bank robbery -- for violation of the Federal Bank Robbery Act and resulted in convictions of the three petitioners and maximum sentences of 25 years each were imposed by the District Judge. The decision of the Court of Appeals, actually, does not help us in any respect on the question presented to this Court at this time for the reason that, as shown in the record, the Court of Appeals said that the pretrial report, I refer to page 6 -- 216 of the record, the pretrial report does -- the question concerning the pretrial report does not warrant extended discussion in view of the recent decision of the Supreme Court in Palermo versus United States and that was the subtle substance of what the Court of Appeals in the First Circuit had to say about this point before the Court today.
William O. Douglas: I didn't get what the page you were reading there.
Melvin S. Louison: 216, Mr. Justice Douglas, of the record and I refer you to the last two lines on that page, in the top of page 217.
William O. Douglas: Thank you.
Melvin S. Louison: The Court of Appeals actually took the principle of Palermo out of context and applied it in its naked existence to a -- an entirely different factual situation and they did that in this manner. In the Palermo case, you had, of course, the situation of a statement which was demanded among others and which did not meet the definition of a statement, as outlined by the statute and ruled on by this Court. In our case, we have the situation where we submit to the Court, there was a statement in existence and that statement was no longer in existence and this report now was the only, if not the best, available evidence of what had formally been the statement of the witness which had been reduced to writing and approved and adopted by him.
John M. Harlan II: How about the --
Melvin S. Louison: Now --
John M. Harlan II: How about the agent himself (Inaudible)
Melvin S. Louison: Well, if Your Honor please, we felt that we did not -- we were not in a position where we should have been required to call the agent as our witness and -- because the witness testified in this case that the agent summary was not precisely as he had stated it. He said, and I think the Government quotes it in their brief and saying there were things in there which were turned around. I refer to page 23 of the Government's brief in which they said they knew that the report contained something different from Staula's testimony since Staula said it was not verbatim. It was turned around and it was not written up just the way the story is, and they refer to their own pages 11 and 12 which sets out excerpts from the record. But if I may -- I didn't want to reach that point at this time but if I may, I will. That imposes upon the petitioners a double burden of proof. Number one, the burden of proof is upon the petitioners to establish that they come within this statute, that so-called Jencks statute. And upon establishing that foundation, as the court referred to it in our present case, upon establishing that foundation, it then becomes incumbent upon the petitioners, if that were so, to show that the Government has no excuse for not producing it and actually, exculpation if the defense would be -- the burden of it would be upon the proponent of the defense or the excused.
Felix Frankfurter: Is there any suggestion that the destruction was due to any reprehensible or -- or --
Melvin S. Louison: No --
Felix Frankfurter: -- otherwise or -- or --
Melvin S. Louison: No, Mr. --
Felix Frankfurter: -- to any extent due to any -- any cause subject to criticism?
Melvin S. Louison: No, Mr. Justice. We have expressly stated in our brief and it -- it is our position that that is not material to the issue. We do not make --
Felix Frankfurter: I understand that. I --
Melvin S. Louison: Well, let me say this then. There is no evidence in the record thereof. The agent was not inquired of either by the court, by the Government or by counsel for the petitioners who were also trial counsel. They were -- he was not inquired of and as you say you understand, I further make the contention that we do not consider that material. We consider the fact of existence or nonexistence.
Felix Frankfurter: I understand that but there's no suggestion that the loss --
Melvin S. Louison: There is no suggestion --
Felix Frankfurter: -- that the loss of view --
Melvin S. Louison: -- of bad faith or improper conduct on the behalf of any special agent of the Federal Bureau.
Felix Frankfurter: -- loss of either willfulness or negligence or anything.
Melvin S. Louison: Well, we would have no way of knowing that but we make no suggestion that anything is improper occurred, if that encompasses Your Honor's question.
Charles E. Whittaker: That is to say, you mean the instruction or proscribing of the FBI agent's imposed after his reports were prepared, is that what you mean?
Melvin S. Louison: Yes. We make no -- there is no -- there is nothing of record to show how or why or that there was any bad faith involved or reprehensible conduct or misconduct or even negligence. Our position --
William J. Brennan, Jr.: (Inaudible)
Melvin S. Louison: Yes, Your --
William J. Brennan, Jr.: (Inaudible)
Melvin S. Louison: No, they were not in --
William J. Brennan, Jr.: (Inaudible)
Melvin S. Louison: That's correct, Your Honor.
William J. Brennan, Jr.: (Inaudible)
Melvin S. Louison: Precisely.
Earl Warren: Did the agent himself type those -- typed the summary?
Melvin S. Louison: The agent himself, Your Honor, as I understand it from what we do have, dictated it and it was prepared by some secretarial help at the Bureau. It was, however, the agent's own summary from what he had received. It does not appear of record whether he was dictating from the statement he took from the witness or whether he was using his own memory. It just appears that he dictated a report to some secretarial or perhaps into a dictating machine which was transcribed. And --
Felix Frankfurter: Where are the references in the record as to what the nature of the so-called original statement was, namely how it was taken, what its volume, on what medium it was expressed, where is all that? Do you have them on the stand?
Melvin S. Louison: The witness?
Felix Frankfurter: Yes.
Melvin S. Louison: Yes, Your Honor.
Felix Frankfurter: Did you examine it?
Melvin S. Louison: Yes, Your Honor.
Felix Frankfurter: And were there any limits put on the questions you could put therein?
Melvin S. Louison: Well, I -- I can read it for you verbatim so that you will have it now.
Felix Frankfurter: Please just tell me where it is.
Melvin S. Louison: It's on --
Earl Warren: Now, what witness are you talking about?
Melvin S. Louison: -- page 200.
Earl Warren: You're not --
Melvin S. Louison: The -- the witness who gave --
Earl Warren: -- are you talking about the agent or the witness?
Melvin S. Louison: Not the agent, the witness.
Felix Frankfurter: I'm talking about the agent and --
Melvin S. Louison: Oh, I'm sorry.
Felix Frankfurter: (Voice Overlap) --
Melvin S. Louison: I -- I mis --
Felix Frankfurter: Was the agent a witness for anybody?
Melvin S. Louison: The agent was not a witness for anyone. I -- I think I said before, he was inquired of neither by the court nor the Government nor the petitioners.
Felix Frankfurter: I understood that to be as to this subject matter but --
Melvin S. Louison: Oh, I'm sorry. He was not a -- he was not a witness in any respect nor was any federal agent, except the one who identified photographs of the bank and the automobile involved but there was no --
Felix Frankfurter: But would it appear whether he was available?
Melvin S. Louison: I would say that it appears that the court said something about the U.S. Attorney would have him available and it was the contention of myself and my colleague at that time that we would not call a special agent as our witness once we complied with the requirements of the statute.
Felix Frankfurter: I'm not talking about the statute. But generally, was he a witness?
Melvin S. Louison: He was not in court either as a witness or a spectator to the knowledge of counsel.
Felix Frankfurter: And he wasn't kept from testifying by the Government so as to lead you to say to the jury, point out the fact that the Government didn't call him.
Melvin S. Louison: We would have no cause to argue the absence of the witness. That's right.
Felix Frankfurter: There wasn't any.
Melvin S. Louison: That's --
Felix Frankfurter: He wasn't withheld --
Melvin S. Louison: Not such as would --
Felix Frankfurter: (Voice Overlap) --
Melvin S. Louison: -- give rise to an inference for a jury argument.
Felix Frankfurter: That's right.
Melvin S. Louison: That's correct. That's --
Felix Frankfurter: Was he alive? Does one know that, whether he was alive?
Melvin S. Louison: Yes, I understand he's an agent in charge of a district office at the present time.
Felix Frankfurter: But was he -- was it known? Did it appear that he was alive while these proceedings were going on?
Melvin S. Louison: It appears, yes, Your Honor.
Felix Frankfurter: Alright.
Melvin S. Louison: Not in that many words. No one asked if he were dead or alive. It just --
Felix Frankfurter: Well, I know but --
Melvin S. Louison: It was merely stated that the agent was available. And as a matter of fact, the United States Attorney said at one -- the judge suggested that he inquired of the U.S. -- of the agent to determine if these statements were in existence when, at that time, the United States Attorney merely announced that he did not have them in his file.
Felix Frankfurter: Now, where in the record is there a description or what -- where can I find a description of the -- of the destroyed document or the non-existing document? The circumstances under which they were given, what the -- the general contents was etcetera, etcetera?
Melvin S. Louison: On page 199 of the printed record, if Your Honor please.
Felix Frankfurter: 199?
Melvin S. Louison: At -- that's the bottom number.
Felix Frankfurter: Yes.
Melvin S. Louison: There was, apparently, an imperfection in the printing at the bottom number. Page 199, about a little more than a halfway down, it says "Mr. Louison, at this time, we should like to request, under this statute, the statement of this man." The court said, "I am denying it because you have laid no foundation for it as you did the last time. This man said nothing was ever read back to him, so I'm denying it and your rights are saved." At that time, cross-examination was resumed and said, "Now, Mr. Witness, when you --
Charles E. Whittaker: Who is the witness?
Melvin S. Louison: This is now the -- Staula, the witness whose statement is in question. This is --
Charles E. Whittaker: The Government's witness.
Melvin S. Louison: The Government's witness, after his direct testimony, yes.
Felix Frankfurter: Well, I don't -- you got me confused. The witness whose statement is in question?
Melvin S. Louison: Yes, Your Honor. We've asked for the statement of this witness Staula.
Felix Frankfurter: (Voice Overlap) Alright.
Melvin S. Louison: And he is now under cross-examination by Mr. O'Donnell.
Felix Frankfurter: And he gives -- he tells us what he did, what was taken from him and what was --
Melvin S. Louison: That's correct.
Felix Frankfurter: Alright.
Melvin S. Louison: It says "When you said you had a conversation with the FBI some time less than a week after July 18th, did they write down what you had to say then?" The court, "If you know the witness?" "Yes." And at the top of page 200, "And did they read it back to you, sir?" Answer, "Yes." Cross-question, "And did they ask you if that was essentially what you had just related to them?" "And, did you tell them yes?" And --
Felix Frankfurter: Is that all there is in the record on this subject?
Melvin S. Louison: Yes, the court then says "I will order it produced. There is a foundation laid for it." Now, when you say is that all there is, Your Honor please, the Government makes note of the fact that, at just below halfway down on the very next page, the witness has been questioned by the court now and -- and he says "If you will --
Felix Frankfurter: By the way, who is the trial judge?
Melvin S. Louison: Mr. Justice William T. McCarthy of the Boston Federal Court.
Earl Warren: Mr. Louison, in -- in your colloquy with Mr. Justice Frankfurter, do I understand your answer to be that because of lack of information on your part, you do not know what caused the destruction of this document and you felt that --
Melvin S. Louison: It was immaterial to our issue.
Earl Warren: -- it -- it was not incumbent upon you to -- to call a government agent and make him your witness in order to try to ascertain? It was -- it's your --
Melvin S. Louison: That's right.
Earl Warren: -- position that that was a responsibility of the Government?
Melvin S. Louison: May I state this, Mr. Chief --
Earl Warren: That -- is that -- that --
Melvin S. Louison: Yes, precisely, Mr. Chief Justice.
Earl Warren: Yes.
Melvin S. Louison: I should like to state this also in -- in just -- perhaps, paraphrasing a bit. It was our contention that once we met the requirements of the statute, we were entitled to production of the statement. If there were an excuse or a defense so-called for the nonproduction, then it was incumbent or the burden of proof then went to the person who would excuse himself from performance to show the reason for nonperformance and therefore, I felt at the time that I would not, as you stated, call him as my witness --
Felix Frankfurter: But it was --
Melvin S. Louison: -- to ascertain.
Felix Frankfurter: The reason for nonproduction, you say, is -- was nonexistent.
Melvin S. Louison: It's --
Felix Frankfurter: -- is that in dispute?
Melvin S. Louison: That is not in dis -- at the time of trial, we did not know that but--
Felix Frankfurter: I understand but (Voice Overlap) --
Melvin S. Louison: It is not in dispute.
Felix Frankfurter: -- in your case here, is it in dispute that --
Melvin S. Louison: That it --
Felix Frankfurter: -- the document to which you were entitled, never mind whether you're entitled to anything, the particular doctrine was not in existence? There's no controversy about that.
Melvin S. Louison: That's the information furnished to us by the Government and we accept it.
Felix Frankfurter: And also, that there's no -- and -- and it -- also not in controversy. There's any suggestion that its nonproduction or its nonexistence, if you will, was due to any untoward cause.
Melvin S. Louison: I can't say that, Your Honor please, in that very way because all I say is I do not know what happened and --
Felix Frankfurter: Well, I do not suggest --
Melvin S. Louison: -- I do not consider it material.
Felix Frankfurter: I understand -- I understand your legal point. I'm trying to get its facts and not as a legal argument which comes up here.
Melvin S. Louison: Actually, I have no way of knowing and therefore --
Felix Frankfurter: And you're not suggesting it.
Melvin S. Louison: -- I do not suggest it.
Felix Frankfurter: And you're not suggesting it.
Melvin S. Louison: In the absence of knowledge, I do not suggest it, yes, Your Honor.
Hugo L. Black: When did you find out of its nonexistence? I didn't quite understand.
Melvin S. Louison: We found out that, for the first time, Your Honor please, on appeal. However --
Hugo L. Black: You -- after --after the trial was over?
Melvin S. Louison: After the trial was over.
Hugo L. Black: Did you find it out at the trial? Is there anything in the record that showed you knew it during the trial?
Melvin S. Louison: In the trial, Your Honor please, on page --
Charles E. Whittaker: Is that 201 to 202 of the record?
Melvin S. Louison: Yes, Your Honor. Actually, the court said, at the bottom of page 201, "Have you got in your possession," addressing the United States Attorney, "any statement that was copied by an FBI agent which, in any way, would reflect a statement that this witness made and which he substantially adopted as the statement?" Mr. Hobley, "No, Your Honor, we do not."
Felix Frankfurter: What is he, an assistant to U.S. Attorney?
Melvin S. Louison: He was an assistant to the assistant.
William J. Brennan, Jr.: (Inaudible)
Melvin S. Louison: Yes, sir.
William J. Brennan, Jr.: (Inaudible)
Melvin S. Louison: Yes.
William J. Brennan, Jr.: That's -- you're not -- in other words, we have no issue involved here whether you were entitled to a summary. No, I'm sorry, Your Honor.T
Melvin S. Louison: here is an issue there because I felt that, where there is a new field, there perhaps might be alternative remedies.
William J. Brennan, Jr.: Well, what I'm trying to say, did you add summary?
Melvin S. Louison: Yes.
William J. Brennan, Jr.: You did.
William J. Brennan, Jr.: After they denied you?
Melvin S. Louison: Yes. If I may refer to page 207 of the record, Mr. Justice Brennan, it says, about six straight lines down, just -- well, at the top line, I said, "We move to strike this witness' entire testimony," just below that, I said, "We make a common law demand for that document." At this time, the US Attorney said, "What document?" And I said, "The one he allegedly just read, which was the summary."
William J. Brennan, Jr.: Now, do you, let me ask you this (Inaudible) that summary has been turned around. Do you take the position that that summary was followed by the statement of the facts?
Melvin S. Louison: No, I do not.I just take the position that if the Government removes the situation from the confines or the four corners of the statute, then we go back to the common law and find ourselves back into the Jencks case. May I refer now, Mr. Justice, to page 210 of the record, the -- where it says "Mr. Louison," about a third of the way down, it says "the record is completely without explanation as to the original document."W
Charles E. Whittaker: hat page is that?
Melvin S. Louison: On page 210 of the printed record, about one-third of the way down. Now, if it please the Court, if the petitioners contend that if such a situation as this is permitted to exist and be approved then, actually, we have now found a way for the Government to eliminate all discovery of such documents which, we submit, was neither the intent of the Congress in the passage of this statute nor the intent of this Court, obviously, in the Jencks case and certainly not so in the Palermo case which followed the Jencks case. And we earnestly submit that imposing a double standard -- a double burden of proof upon the petitioners in that regard is equally as bad as the -- giving the Government the power to avoid discovery by destroying the original document or -- when I say original document, I mean the document that would meet the definition of the word "statement" within the statute. In that regard, I might say that, though the witness said he thought he had signed the statement, there is actually no requirement in the statute that he had -- that he sign the statement. This is one form of adoption of it but if he read or had it read to him and approved and adopted it, then it is certainly a statement within Section 3500 just as much as if would have signed it. And therefore, the fact that it does not appear, let's say, conclusively in the record that it was signed by the witness does not preclude us from obtaining it.
Felix Frankfurter: Are you talking about the nonexistence of it?
Melvin S. Louison: Yes.
Felix Frankfurter: Not -- not the one that's referred to by the judge. Have you got -- on page 201, have you got in your possession any statement that was copied by an FBI agent? They were talking about the -- the document which you asked for which was in existence and the production was denied, is that right?
Melvin S. Louison: Yes, but I would say this, Your Honor, in addition.
Felix Frankfurter: Now, before you -- is there any -- does the Government controvert your position that the document taken from the witness, the original document, the document that they are talking about?
Melvin S. Louison: Comes within the statute.
Felix Frankfurter: Comes within the statute?
Melvin S. Louison: They do in one spot and I refer you to page 20 --
Felix Frankfurter: But I see --
Melvin S. Louison: -- 26 of the Government's brief in a footnote in which they say that the final testimony of the witness was that he thought it was read back to him. But if you notice, the witness also said, "I think they wrote down what I said and I think they gave it back to me to read over to make sure that it was right and I think had to sign it. Now, I am not sure. I couldn't remember before." Well, that does not actually show the entire nature of the record because, on page 201 of the record from which this excerpt was taken, the very next sentence by the court is -- that's about all the way down the bottom, about six or eight lines up. The court said, "And he said it was read back to him. So, if that," referring to the FBI summary, "if that is a transcript." Now -- actually I can actually remember this witness as if it were yesterday. He was saying "I think they wrote it down and I think they read it back to me to make sure that it was correct and right," but he was actually stating a fact. I would say it's uncontraverted that he gave a statement to the FBI which they wrote down.
Felix Frankfurter: As I --
Melvin S. Louison: And the Government's footnote on page 26 of their brief does not reflect the true --
Felix Frankfurter: Well, as I read --
Melvin S. Louison: -- nature of the record.
Felix Frankfurter: -- as I read their brief, and that's all I've done, they do not argue that the original statement was outside of the Jencks case because if that was true, it would be a fortiori to the non-accurate or fair subsequent summary of it was not within -- I mean the whole brief, presupposing that the original thing, which is nonexistent, could have been proffered and should have been produced had they been in existence.
Melvin S. Louison: Well, that's probably so. That's our contention.
Felix Frankfurter: Well, I assume your argument can go out on that basis.
Melvin S. Louison: I don't -- I'm afraid I don't understand, Mr. Justice.
Felix Frankfurter: (Voice Overlap) --
Melvin S. Louison: Our -- my -- my argument can continue on the basis that it should have been produced.
Felix Frankfurter: I understand the case, the Government's case to assume that the original nonexistent things could have been called for because if they could not have been called for, a fortiori --
Melvin S. Louison: Yes.
Felix Frankfurter: -- that the--
Melvin S. Louison: That's --
Felix Frankfurter: -- unfair summary of it happened.
Melvin S. Louison: That's correct.
Felix Frankfurter: Alright.
Melvin S. Louison: Certainly. Now, the Government has also said by way of excusing the situation, and they seem to rely on various actual situations in an attempt to excuse it, that the trial judge saw the document in camera and did not see fit to cross-examine the witness on the basis of it and he, being the impartial master of the trial, could have done so if he were disturbed by any apparent or alleged inconsistency. And the short answer to that, I think, was spelled out in the Rosenberg case where it said that it's within the realm of counsel's discretion to determine whether or not there would be any useful matter contained in the -- in the statement for cross-examination and it would not be the province of the court to second-guess counsel in that regard. And of course, they state that -- I want to reach this point rather quickly, they state that if error appears in this trial, it pertains only to the petitioner Lester because he was the one who was named by this witness or identified by this witness. Now, I say this. Where the original document, assuming that it should have been produced if it had been in existence, where the original document is no longer in existence and cannot and has not been preserved for review by any appellate court, we are unable to determine whether or not there is any prejudice to any of the other petitioners. And therefore, it must be held to be prejudicial to all if it is prejudicial to any, and this occurs because of the fact that -- this occurs because of the fact that a statement might contain things that the witness did not testify to in his examination which might be the subject of cross-examination as to "why didn't you say this, Mr. Witness, when back, so close to the time of the event, you did say this?" And of course, the statute there, again, does not say that the statement to be producible must relate only to what the witness stated on his direct examination. It states that it must be related to the subject matter and therefore, matters contained in the statement to which he did not testify to, provided they related to the subject matter, would be the proper subject of production and subject to cross-examination. So -- and of course, there is also the position in the Jencks case that inconsistency is not a prerequisite to production and of course, the statute does not make any such requirement that there'd be a preliminary showing of inconsistency. So, without the necessity of showing inconsistency, as well as the situation where the nonexistent document cannot tell you -- you, Members of the Court, what was contained there in its original form. The prejudice, if there would be any, is to all the petitioners and not to any one particular petitioner because this man merely stated his name on the direct testimony. Now, there is one other point which I think is essential and that is the Government has stated that when must they have it in their possession if it is called for, and they say it must be in their possession at the time production is demanded. And I submit to the Court that that is untenable and we have included in our brief reasons showing that it must be held to be at any time. If the statement were in existence and in the possession of the United States at any time, then it is -- comes under the purview of the statute and the petitioners are entitled to protection from it, from the destruction thereof at any time after.
Felix Frankfurter: Let's see if I -- if I understand your argument. I thought, at least it seemed to me clear, that your argument could be -- proceed on the assumption that if the nonexistent documents were in existence, they -- a call for them would have -- would have had -- would have had to be honored.
Melvin S. Louison: Yes.
Felix Frankfurter: I also understood you to answer quite clearly to Justice Brennan that you do not think the existing document which was denied to you does not come as such within the Jencks statute --
Melvin S. Louison: Yes.
Felix Frankfurter: -- and could not be called for under the Jencks statute.
Melvin S. Louison: That's right.
Felix Frankfurter: Therefore, I do not see why you recur to what the statute requires because the statute conceded, as I get the Government's faith, would have required the production of the nonexistent document and the statute concededly also by you as such would not require the existing document. And your claim is because the existing -- to be required document no longer exist, you have a right to call for the other document.
Melvin S. Louison: Well, we have a right to obtain sanctions. My -- my colleague is now going to address the Court on the question of striking out the motion to strike.
Felix Frankfurter: But if all (Voice Overlap) --
Melvin S. Louison: We are entitled to sanctions.
Felix Frankfurter: But they derive from two statements that I -- that I put to you to find out whether you agree or not, namely the destroyed document concededly could have been called -- the nonexistent document concededly could have been called for and the existing documents concededly is not callable under the statute.
Melvin S. Louison: In the first instance, that's so.
William J. Brennan, Jr.: Well, that was (Inaudible) not entitled to have all with the exception of restrictions under (Inaudible) Alternatively, at least you are entitled to have, under the Jencks case (Inaudible) the Government did have even though it does not qualify.
Melvin S. Louison: That is exactly so, Mr. Justice Brennan, and I think Mr. Justice Frankfurter put the question to me that "outside of this situation, would you concede that this statement did not come within the statute as such?" And I said yes, but I do not think that that reflects on the answer I just gave you.
Earl Warren: Was the statement ever made available to you?
Melvin S. Louison: At no time, Your Honor, except during the appellate matter before the Court of Appeals. It was impounded and that's --
Earl Warren: Yes.
Melvin S. Louison: -- a matter of record. It was impounded and it was opened for the first time in the Court of Appeals and was never available to petitioners at any time during the trial of this case.
Felix Frankfurter: But what --
Earl Warren: Up to this time -- but at -- you did learn the contents of at the time of the --
Melvin S. Louison: At the time of the hearing for the Court of Appeals.
Earl Warren: Yes.
Melvin S. Louison: That's correct.
Felix Frankfurter: What was the reason for that?
Melvin S. Louison: The Court of Appeals clerk's office just told me the Court of Appeals was not bound by an impoundment order of the District Court and they opened it just like that.
Felix Frankfurter: Well, did you -- did you, on the basis of that knowledge, make any move either before the Court of Appeals in the light of knowledge to show that real prejudice would -- would result from -- or did result from your -- from the failure to make that available at the time?
Melvin S. Louison: Certainly.
Felix Frankfurter: What?
Melvin S. Louison: Certainly.
Felix Frankfurter: Where is that? I don't mean in argument. I mean, did you make a motion saying you now know there are things of this non-disclosed document which are important to bring before a jury?
Melvin S. Louison: In our matter of -- in the -- one of our points in the appeal to the Court of Appeals, we claimed it was error and showed that inferences to be taken from that --
Felix Frankfurter: I understand you --
Melvin S. Louison: -- could have resulted in cross-examination.
Felix Frankfurter: -- I understand you said it was error but did you affirmatively say, on the knowledge would you -- which was given to you in the Court of Appeals, you are now in the position to show either that the Court of Appeals or the new trial should be had or that the case should go back to the District Court --
Melvin S. Louison: If your --
Felix Frankfurter: -- and there, you could move.
Melvin S. Louison: If your question means, Your Honor, did we do something in addition to the perfection of our appeal, the answer is no.
Felix Frankfurter: Yes.
Melvin S. Louison: We continued with our appeal and that being one of the points of our appeal.
Felix Frankfurter: Yes, but when you appealed at the time -- at the time you appealed, when you perfected your appeal, you did not know the contents of the document, did you?
Melvin S. Louison: No.
Felix Frankfurter: But afterwards, you did know the contents of the document and my question is whether, on the basis of that knowledge, having been put in possession of a content, it might demonstratively show that you suffered for not having been allowed to produce that document before a jury. You should now on attack and not on mere legal argument be allowed to go before a jury.
Melvin S. Louison: No, the court had in camera inspected that document and had full knowledge of it and we had no reason to believe he would make any different decision on a motion than he had originally upon our demand both for the document to strike the testimony and for production of the summary.
Felix Frankfurter: But you couldn't ignore what the Court of Appeals with Judge Magruder and Judge Hartigan and Judge -- who was the third? Woodbury would have done, could you?
Melvin S. Louison: Obviously, from the very short nature of their opinion on this point, they didn't do very much.
Felix Frankfurter: I'm saying that you couldn't have known what they would have done if you said --
Melvin S. Louison: I couldn't have anticipated --
Felix Frankfurter: "Having now this knowledge --
Melvin S. Louison: -- their actions, no, Your Honor.
Felix Frankfurter: -- I ask that I be given an opportunity to present this grievance wrong to my client to the jury," could you?
Melvin S. Louison: That's right. That's a matter of argument.
Felix Frankfurter: Well, it's the fact that you didn't do it, isn't it?
Melvin S. Louison: That's correct. In addition to the appeal, no.
Earl Warren: Mr. Connor.
Lawrence F. O'donnell: Mr. O'Donnell.
Melvin S. Louison: Mr. O'Donnell for the petitioner, Mr. Chief Justice.
Earl Warren: Oh, oh, I beg your pardon. Mr. O'Donnell, yes.
Lawrence F. O'donnell: Thank you, Mr. Chief Justice. May it please the Court. I would like to devote my attention to the following question. If the Government fails to produce a prior written statement of a government witness who has testified, which statement qualifies under the Jencks Act because of a government agent's destruction of said statement, ought the witness' testimony be stricken from the record. This, in substance, is the question raised by parts one and two of the petitioner's brief. The Court of Appeals did not face this question but rather, dismissed the petitioner's contention perfunctorily by citing the Palermo decision which, of course, dealt with a question totally unrelated to the question I have just posed. Section (d) states that if the U.S. elects not to comply with a not up or a producible statement under (b) and (c), then the court shall strike the testimony of the witness from the record. If we look at Sections (b) and (c), and also (a), we say that they refer to statements in the possession of the United States. The Government says that this necessarily means in the possession of the United States at the time production is called on and, in addition, claims that this position is self-evident. The petitioners do not claim the halo of self-evidence for the Government's position.
Felix Frankfurter: In your position -- your position would be the same, would it not, if there had been no other statement?
Lawrence F. O'donnell: Yes, Your Honor. I -- I would like to say this, Mr. Justice Frankfurter, that, of course, this entire notion of destruction -- alleged destruction which appeal -- appeared for the first time in the Government's brief in opposition to our petition for certiorari and representing these petitioners, I don't embrace the notion of destruction. I think the entire lack of production of the statement runs in with -- I would make the suggestion that they were attempting to insulate this witness and that the trouble and difficulty surrounding getting at this statement was the obvious fact that it had impeachment material in it. Now --
Felix Frankfurter: Well, you're not going to announce this --
Lawrence F. O'donnell: But --
Felix Frankfurter: Are you now implying that you're agreeing with your associate that there was something skullduggery about the Government's action?
Lawrence F. O'donnell: Well, I -- I'm not disagreeing with my associate but at the same time, I'm not reluctant to say that there may very well have been skullduggery. I think there's a fair inference from the record that such tactics were employed.
Felix Frankfurter: Well, that -- you're disagreeing with your associate.
Lawrence F. O'donnell: It might be, may it please the Court.
John M. Harlan II: I don't --
Felix Frankfurter: But it's a very common thing for -- it's a very common thing for people -- when people write out a statement to -- to destroy the underlying document. Mr. Secretary gives his whole diary based on that procedure.
Lawrence F. O'donnell: Well, may I say this, Mr. Justice --
Earl Warren: Is that a legal document?
Lawrence F. O'donnell: -- Mr. Justice Frankfurter, that this particular agency, the FBI and the little expression that has crept into this case, the word "knows" as though someone was scribbling in a dress or a shopping list on the back of an envelope or a telephone number, this particular agency houses all sorts of records, millions, I would bet, of fingerprints. And I would say that a well-paid FBI agent, competent, out investigating a bank robbery, interviewing an allegedly eyewitness of said bank robbery wouldn't long be tolerated if he didn't take careful notes of what had happened. And I might add that when the summary of the Interview Report which has been stated doesn't come within the purview of the Act, I had objected to the fact when the judge took that summary in camera that in order to make his judgment, he decided he should show it to the witness who had just testified on direct examination, may it please the Court, and also was placed under cross-examination. So, the very obvious thing to me, as trial counsel in that courtroom, was "Gosh! This fellow is going to notice the minute he looks at this that it's not consonant what he testified to on direct." I implore the Court to look at the summary of FBI Agent Toomey. Dominic Staula went in that courtroom and identified three defendants, positive and partial. The summary of Toomey, the FBI agent, he said, "I never saw a third person in the bank." He gave one description and there was clearly impeachment material in that summary. It --
John M. Harlan II: Could I go back to your basic position which, as I understand it, is that once -- once you've laid a foundation by showing that there was a statement then, as a matter of law, the Government doesn't produce it, you are entitled to have his testimony stricken. That's your basic position.
Lawrence F. O'donnell: Yes, Mr. Justice Harlan.
John M. Harlan II: Now, supposing the Government had said, "Alright, we haven't got this statement. We will now produce the witness to whom this statement was made and we'll put him on the stand and examine him ourselves to show what this statement was." Under your view, could you have excluded that testimony and stood on your rights to have the statements -- to have the witness' testimony stricken?
Lawrence F. O'donnell: Yes, Your Honor.
John M. Harlan II: You could've?
Lawrence F. O'donnell: Yes, Your Honor. And --
Felix Frankfurter: Mr. O'Donnell, I'd like to say this. I don't know a thing about it but I'd like to know on the basis of what facts I'm to decide this case.
Lawrence F. O'donnell: Yes, Your Honor.
Felix Frankfurter: It's one thing for me in a very serious case to suggest or to -- to proffer to this Court, to submit to this Court a case even on fragile testimony of skullduggery by the prosecution. No one feels most strongly about that, no one could feel most strongly about that than I do. It's a very different thing to have it disavowed and then to have co-counsel trot it out again.
Lawrence F. O'donnell: No, may it please the Court, Mr. Justice Frankfurter. It wasn't so much that I trotted it out. I put it on the basis of whether or not I, as a rational being, could take that inference from the entire flavor of what's on this record.
Felix Frankfurter: As a lawyer before this Court, you have to take a position not as a -- what the flavor is and as a rational being, you either take the position or you don't take the position.
Lawrence F. O'donnell: I've taken a position, may it please --
Felix Frankfurter: And your colleague took one position, you take another. You're free to do so because you represent, I take it, a different client.
Lawrence F. O'donnell: No. May I say this, Mr. Justice Frankfurter, that when the premise you established for a judgment exercised asking "would you consider that there might have been good faith or bad faith?" Are now -- I would say, and my argument develops, that it's (Inaudible) of no consequence whether it was good faith, bad faith, indifference, whim, caprice --
Felix Frankfurter: That is still a different que -- alright, that's a question of law. I understand that quite clearly. But whether you do or do not charge the Government with wrongdoing is, to me, vital in this case.
Lawrence F. O'donnell: Alright, may it please the Court. I know --
Felix Frankfurter: I can well understand the legal proposition doesn't make any difference. You won't discuss it, but you did discuss it and you did make the charge.
Lawrence F. O'donnell: Yes, Your Honor. May it --
Earl Warren: Mr. O'Donnell, as I understood your -- your associate, I -- I may be entirely mistaken about it. As I -- as I understood him, he didn't vouch for the fact that there was -- there was nothing wrong with what the Government did. All he said in response certainly to my question was that for want of information, for want of knowledge on the subject, as disclosed in this record, he made no charge of -- of wrongdoing.
Lawrence F. O'donnell: That's precisely my point.
Earl Warren: Now, if -- if he said more than that, I -- I didn't correctly understand him but that's all I understood him to say.
Felix Frankfurter: He explicitly disavowed wrongdoing by the Government in an answer to a question by me. He explicitly disavowed it.
Lawrence F. O'donnell: May I say this, Mr. Justice Frankfurter. In this case, where the Government has come here before the United States Supreme Court and introduced a transcript that wasn't before the Circuit Court of Appeals and wasn't in the trial court, I'll take this position. We filed affidavit of -- affidavits of bias in this case. I can't just -- I don't like to raise and the -- we asked for severance in this case as against including these three defendants. It was denied. Now, the Government in its brief is talking about, well, if there's reversible error, it might apply to one and not to the other. Well, I say that's a late date and the -- going further on the concurring opinion of the Palermo case, it was said Congress made crystal clear its purpose only to check extravagant interpretations of Jencks while reaffirming the basic holding that the defendant in trial be entitled to statements helpful in cross-examination of government witnesses who testify against him. Petitioner submit that "entitled" means to have a right to and if the petitioners have a right, then the Government has a corresponding obligation to comply with that right. If there is no obligation, there is no right. Now, if this obligation can be abrogated by the mere act of an investigative agent destroying a statement, even if in good faith, then the right is, in reality, no right at all. If the principles set forth in the Jencks case are subject to whims, caprice or even negligence and carelessness of government agents, then the spirit of Jencks is dead and we are left with the clops.
John M. Harlan II: But you did have an opportunity and means of reconstructing the statement --
Lawrence F. O'donnell: May it --
John M. Harlan II: -- by calling a witness.
Lawrence F. O'donnell: The FBI agent?
John M. Harlan II: Yes.
Lawrence F. O'donnell: Now, I say --
John M. Harlan II: You say the Government has got to suffer the consequences of failing to produce which, by hypothesis, let's presume for a moment, was a perfectly honest failure to produce. Take it on that premise at least. And you say the Government has got to suffer the consequences of its failure to produce without your laying any further foundation by trying to resort to the testimony of the agent to reconstruct the statement that's not in existence.
Lawrence F. O'donnell: Yes, Mr. Justice Harlan. Now --
Charles E. Whittaker: Is it true -- does the Act -- a conference in chambers while Mr. Staula was on the stand, counsel for the Government advised you that there had never been a different statement by the witness at all, as cited in Footnote 3 of the Government's brief on page 10?
Lawrence F. O'donnell: That there had never been --
Charles E. Whittaker: There's never been a -- that -- that counsel for the Government states several times that the original note of the FBI agent were no longer in existence and that there never had been a different statement by this witness, citing transcript one statement 05.
Lawrence F. O'donnell: Yes.
Charles E. Whittaker: Is that the right statement?
Lawrence F. O'donnell: Mr. Justice, yes. We don't contend that there had ever been a -- a written statement by witness Staula but we do contend that we laid a foundation for a producible statement under the various facilities set out in the Jencks Act.
John M. Harlan II: Well, if there wasn't a written statement, how can you get a written statement that doesn't exist? I don't understand.
Lawrence F. O'donnell: It was written by the agent and adopted by the -- the government witness, Dominic Staula.
John M. Harlan II: You mean the statement that was unavailable? Is that the one you're taking about?
Lawrence F. O'donnell: Yes, Mr. Justice Harlan.
John M. Harlan II: Not the other case?
Lawrence F. O'donnell: Yes.
William J. Brennan, Jr.: (Inaudible)
Lawrence F. O'donnell: No, we've never made --
William J. Brennan, Jr.: (Inaudible)
Lawrence F. O'donnell: Yes, Mr. Justice Brennan. The Government contends, as it's been brought up, since the petitioners did not attempt to call the agent who took the statement, there was no reason to strike the testimony. This is the most tenuous of the Government's contentions. Petitioners had a right to the statement signed and adopted by the witness and to say that the testimony of the agent was a sufficient surrogate is to ask this Court to take up precedence in the fragile house of mechanical jurisprudence. To attempt to equate the written statement of the witness, given a short time after the robbery with the memory of a government agent months later, is to engage in a flagrantly vacuous pleading and it's to proceed as if the Jencks decision had never been handed down and as if the Jencks statute never became law.
John M. Harlan II: This witness may have had a vivid memory. Maybe he could have given it to you verbatim. How do we know?
Lawrence F. O'donnell: Well, Mr. Justice Harlan, that -- the particular witness that we're talking about, Staula, on the stand, made a statement in answer to the trial court that this caption "FBI Agent Interview Report," he said it was inaccurate --
Charles E. Whittaker: (Voice Overlap) --
Lawrence F. O'donnell: -- from this particular witness.
Charles E. Whittaker: He said it wasn't that a -- if that's the true copy of what he said, isn't that what he did?
Lawrence F. O'donnell: Yes.
Charles E. Whittaker: Now, there --
Lawrence F. O'donnell: They -- he said there were things turned around, may it please the Court.
Charles E. Whittaker: How do you explain the testimony of record 201 and 202 after your colloquy there? Witness Staula said that (Inaudible) and I'm trying to rack my brain to think about what happened. I think they wrote down what I said, and then, I think they gave it back to me to read over to make sure that it was right and I think had to sign it. Now, I am not sure. I couldn't remember before," dash and so forth. Now, he, thereby, expressed some uncertainty after that colloquy when he were called up to the bench and on his counsel, isn't that what happened?
Lawrence F. O'donnell: I would qualify that, Mr. Justice Whittaker, as that colloquy indicates that he had doubts as to his signature, merely his signature. Previously, on three occasions, he went into the foundation. I can recall when asking them the questions to establish a foundation, I held in my hand the public document setting out the Jencks Act in an attempt to relate the questions that would satisfy the demand for producible statement.
Felix Frankfurter: Am I right in -- in saying that the crux of your argument will be that your argument reducibly fell to this. That if a man makes a statement or if they comes into existing statement, which is producible under the Jencks statute and that statement is lost for the most honest of reasons, the person whose statement it is cannot be utilized as a witness.
Lawrence F. O'donnell: Yes.
Felix Frankfurter: It must be of acquiescence, doesn't it?
Lawrence F. O'donnell: Yes, but I'd say, in this case, may it please the Court, in the Government brief, they cite a -- a relevant hypothesis. They talk about a statement being burned but we're not dealing with an act of God in this case.
Felix Frankfurter: Well, it doesn't make -- if it's-- if, according to your argument, I see no difference how the non-availability of the document is brought about, whether through carelessness, except -- except purposeful design to defeat the ends of the law. And that's what my question was.
Lawrence F. O'donnell: Yes, Your Honor.
Felix Frankfurter: If the document is -- ceases to be, for the most unassailable reason, the witness -- the person whose -- with reference to whom the statement is made that is no longer producible cannot be availed of the witness by the adverse party.
Lawrence F. O'donnell: Yes, Your Honor.
Felix Frankfurter: That's the case.
Lawrence F. O'donnell: And I would say that the Government adopts the petitioners' contentions. Of course, it would just notice on government agencies that they shall take care, especially when we think of the multitudeness record year in and year out that are maintained by the Government, that it will maintain these records in accordance with the war of the land and have them producible at a later trial. Now, the Government also contends that when I spoke about the act of God, we're, of course, on the fire. We're talking about the act of an agent and also, with that thought in mind, the protection of the Government, it seems that this statute clearly indicates that in the event of a producible statement not being produced, that the testimony of the witness will be stricken. And I say that, in summation, that the petitioner submit that the failure of the Government to produce the statement of the witness in compliance with the order of the court because of the destruction of that statement by a government agent, is the equivalent of an election not to produce and hence, the testimony of the witness, Staula, ought to have been stricken from the record. To hold otherwise would be to stultify the decision of this Court handed down in the Jencks case and to proclaim the inability of the Jencks Act to carry out the legislative intent.
Earl Warren: Mr. Connor.
Roger G. Connor: Mr. Louison, Mr. O'Donnell, and may it please the Court. The Government distinctly takes the position that no statement has been adequately shown to exist on the record that is before us nor was it in the court below. And --
William O. Douglas: The statement in the statutory sense.
Roger G. Connor: In the statutory sense, that no statement that's alleged to have been destroyed here or was ever shown to exist sufficiently to require a reversal here or to bring into play the doctrine which has been asserted by counsel for petitioner.
William O. Douglas: I wonder if you tell the Court that since Palermo, there have been any administrative internal rules or regulations or change of practice for the destruction of the original notes and putting them into summary for so long?
Roger G. Connor: Your Honor, I have consulted with the officials of the FBI in preparation for this argument. I also know of my own knowledge from the past practices and I would like to say this. That since the Jencks decision, there has been no changes in FBI procedures. Procedures were changed somewhat in June, just after the Jencks decision. Although, even there, there was not a great alteration of technique and since then, they haven't been changed at all in this respect.
William O. Douglas: Is there any change made after Palermo?
Roger G. Connor: No, Your Honor. And the changes that were made after Jencks were all calculated to aid the Government in complying with the Jencks decision and later, with the statute. We didn't even change our procedures after the statute was enacted because it wasn't necessary. The --
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: Well, Your Honor, the term "raw files," as used by the Department, I'm sure, referred to a typewritten matter which is put in the files and which may contain all sorts of things of a hearsay character describing investigative techniques. It may contain scandal, gossip, any number of things and it may contain a lot of matter which is not segregated by subject classification. For example, in a case, there might be something said about the subject's personal life and on the same page, there might be something said which relates to the criminal conduct for which he is eventually charged and --
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: Yes, Your Honor.
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: Well, Your Honor, I think there -- there's been a misconception of just what did happen there or what Staula's testimony on this point is and our brief develops it. In the opening part of our brief, we start on page 4 to describe the testimony of Staula on this point and it will be seen that, at one point, Staula said that -- first of all, he told his story and then the man asked him a few questions, that is the FBI man and then he -- he wasn't too sure whether he signed it. And on page 9 of our brief, we quote from the record --
Earl Warren: Was he sure that he'd been -- it had been shown to him and that he had approved it?
Roger G. Connor: No, no. He -- I think he's highly equivocal on this point. He thought, at one stage, that he had signed something and there is one portion of the record where he says that when he went down to the police station the day after the robbery, he thought he signed something saying he was in the bank. "But I didn't sign any statement," he said or he didn't sign any lengthy document. Now, on page 8 and 9 of our brief, we've set out one portion of the testimony on this. Down at the bottom of page 8, we've quoted. The court, "Now, Mr. Witness, you testified here on cross-examination that you talked to the FBI agent and that he asked you questions, as I remember it, and that you didn't know what he had written down because it was not read back to you. Didn't you testify that way?" The witness, "I didn't remember. Since then, I have recollected. He didn't actually ask me questions. I mean, at first, I told him the story and then, when I got through, he asked me a few questions." Now, at this point, the court cuts him off by saying, the court, "Well, did he read it back to you?" The witness, "I believe he did." The court, "What is your best memory of it?" The witness, "I am pretty sure he did." Well, now, if I could stop there for a moment, it's customary in FBI interviews to read back to -- to a person from the notes that the agent has taken to confirm and verify the facts that the agent understands he's just been told, so there won't be any mistake about it. That doesn't mean that the agent, at that time, has in his hand a complete elaborate written statement. The agent's notes may be nothing more than hieroglyphics or personal shorthand, which they frequently are, and I think that this is what is involved here. I think this is --
Earl Warren: But whether it's --
Roger G. Connor: -- the best inference to be drawn.
Earl Warren: -- whether it's hieroglyphics or -- or whether it's in English, if -- if it is recorded, it might be shorthand. But if it is recorded and it is acknowledged by the witness to have been what he stated, is it not -- does it not then come under the Jencks Act?
Roger G. Connor: No, Your Honor, because these notes have never been considered to be a statement in the sense of a -- a written statement signed by the witness nor are they a recording of -- are they a verbatim transcription of any kind or a verbatim statement and they have never been thought by us to have any value as -- as a producible statement under the Jencks Act.
Earl Warren: Why does the agent asked him then if that's what he stated?
Roger G. Connor: Because in the process of interviewing a witness, the agent wants to make sure that he understands the story correctly and he may confirm certain points with him. Now, he may not necessarily read back to him what's in his notes. He may just clarify a few points. Maybe his notes will be more elaborate than this. Maybe they will be less so. This, we don't know from the state of the record here.
Felix Frankfurter: It's difficult, Mr. Connor. Am I wrong in -- in having inferred from your -- what you regard as the -- the correct question before the Court that the -- the assumption of that question, presupposition is that the Government assumed that if the notes had been in existence that Staula gave, they were produced. They would have been produced.
Roger G. Connor: No, Your Honor. We do not --
Felix Frankfurter: Am I wrong about that?
Roger G. Connor: We -- we do not agree with that presupposition.
Felix Frankfurter: Well, I don't understand your questioning. I must say, it doesn't mean -- it isn't -- if I can read English, to say the question is whether the notes of an interview which the witness testified had been read back to him and might have been signed by him were not in existence at the time they filed, the Court should have directed that they'll be turned over to defend for later report by the government agent which the witness testified was not a substantially verbatim account. Now, on the context of the subject matter, there is a differentiation, just the position between notes that have been read back to him, which might have been signed by him and a document, a later document, not being a substantially verbatim account of what he had told. I don't see why the Government doesn't start out with the first point then. Number one, the notes originally were not producible because they were not subject to the Jencks statute.
Roger G. Connor: Well, that is our position, Your Honor.
Felix Frankfurter: Well, that isn't what you say anywhere.
Roger G. Connor: Well, in our --
Felix Frankfurter: (Inaudible)
Roger G. Connor: -- in our brief, we have a counterstatement of the question involved and perhaps, I was direly tearing up beginning with that because we do not agree that a complete foundation for it is made or was made in this case. That is where we disagree. On page 2 of our brief, we formulate a counterstatement, namely that whether --
Felix Frankfurter: That's what I read it for --
Roger G. Connor: Yes.
Felix Frankfurter: -- that's what I read it from.
Roger G. Connor: But -- but we -- we differ on this.
Felix Frankfurter: And that means to me, the -- that -- the implication is clear that if the notes that were not in existence had been in existence, they were not challenged to be non-producible. I must -- I must say it's very strange English.
William O. Douglas: I understood you to answer with me that the notes were in existence but the summary was the only one that was at the trial.
Roger G. Connor: No, no, Your Honor. From all appearances, the notes were not in existence. This is what the Assistant U.S. Attorney informed the court of -- below.
William O. Douglas: He said he didn't have them but that --
Roger G. Connor: Yes, and he doesn't say affirmatively, the Assistant doesn't, in the record that he talked to the agent but we assumed that he made some inquiry and this is what he understood to be the case. The notes were undoubtedly destroyed because it's standard FBI procedure to do so, unless they have evidentiary value. If the notes had -- have been signed by a person or if the notes contain information --
William O. Douglas: Well, then --
Roger G. Connor: -- which can be --
William O. Douglas: -- if the notes are always destroyed, that was what my original question was aimed at then --
Roger G. Connor: Yes.
William O. Douglas: -- Palermo gives us an around -- a way around the entire statute.
Roger G. Connor: No, no, Your Honor. The destruction of notes is in no way calculated to --
William O. Douglas: I'm not saying in purpose.
Roger G. Connor: -- defeat the statute.
William O. Douglas: I mean, I don't say that's the purpose of the destruction of notes but if that is the fact, if that is the system, then the -- the statute is -- has no force in the fact.
Felix Frankfurter: Well, that -- that is so only on the assumption that the notes always come within the scope of the Palermo -- of the statute.
Roger G. Connor: That is right, Your Honor --
William O. Douglas: Well, the summary --
Roger G. Connor: -- but that is --
William O. Douglas: It's clear from Palermo that the summary never does come within.
Roger G. Connor: That is correct, Your Honor, but the FBI has not stopped taken written statements where it's appropriate. Now, how they determine this hinges on -- on the -- the reality's investigative light and -- and what the agent sees at the moment. It also hinges on whether the witness is willing to give a statement on how crucial his testimony is likely to become in an -- a number of other things. In this case, at the time that they interviewed Staula, it was the day after the robbery and they still didn't even know who the -- the suspects were. They were looking for general information about the robbery. And on this point, it's important to point out that Staula, this same day after he talked to the FBI agent, was taken by the city police down to a service station where he looked at an individual and he said he couldn't positively identify that man. He then, in the police car, was shown a number of photographs and out of these photos, he picked Lester as being the man who told him to get back against the wall in the bank. And that is how Staula perfected his identification of Lester. The FBI man never talked to Staula again. This -- this is -- is, I think, a partial explanation of what happened here. When the FBI man talked to Staula, he was interested in the general picture and we don't know what kinds of notes the FBI man took. But whatever he took, he wrote up this interview, which is in the record, this Interview Report which is in the record.
Felix Frankfurter: Well, of course, the word "notes" and the conception of notes is itself a very ambiguous term --
Roger G. Connor: That's right, Your Honor.
Felix Frankfurter: -- from the record that has come before this Court entirely here. There are any number of instances where the FBI takes a coherent consecutive statement and the man is trying to draw an issue of it. I wouldn't call those notes.
Roger G. Connor: No, and we don't call them notes, Your Honor. We call that a written statement. The FBI is very careful that when it gets a statement, it is an ample one and there is very little doubt about it because it -- it always contains a prelude about the individual being advised of his rights and it ends up with who the agents were and the date of the statement. The statement usually covers the subject involved quite -- quite amply and it's something that's almost instantly recognizable. Now, the other kind of report, the report of an interview of a witness, runs somewhat in the form of the one that's in the record here. And this is a very usual procedure because the agents, in the course of the day in having to interview many witnesses or here, trying to discover who did this robbery, may not have time to get a complete written statement from every person that they talked to and in this case, they apparently didn't. They were, apparently, scores of witnesses to this robbery who testified at the trial. Staula was just one of many.
Felix Frankfurter: Well, they're not only -- these notes often are also interluded with comment by the agent. How (Voice Overlap) --
Roger G. Connor: Yes, indeed.
Felix Frankfurter: They -- they make comments that this fellow, "I don't believe him" and so on, all sorts of things.
Roger G. Connor: Oh, the agent might note that the witness is nervous or any number of things like that. This would hardly be a statement of the person and under the Jencks concept. It would be unfair to confront the witness with this when he was called to the stand to try to impeach him with this kind of material.
Earl Warren: Well, he'd hardly -- hardly show the witness that kind of notes and ask him to sign up though, would he?
Roger G. Connor: No, he wouldn't and I don't know of any FBI practice of a witness signing notes. I -- I really don't, Your Honor. They have no -- no established procedure of -- of having witnesses sign notes.
William O. Douglas: Well, that was just Staula.
Earl Warren: Do they have any --
Roger G. Connor: Except where -- where a witness might draw a sketch or something like that. They might have him sign it in that circumstance. Excuse me, Your Honor?
Potter Stewart: So if Staula's recollection that he did sign this is correct, then it would follow that these things were more than just simply notes.
Roger G. Connor: That is correct. And under established procedures, clear procedures, if he had signed those notes, they would be retained. That is, unless the agent violated his duty here, those notes would have been retained and kept in an envelope in the case file.
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: Well, then --
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: -- then we have a question of whether it is a statement adopted by the witness.
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: Yes, I certainly do, Your Honor because the notes may be very incomplete. They may not be --
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: Well -- well, my -- my reason for saying that I don't think it qualifies is that these notes could be very incomplete --
William J. Brennan, Jr.: I'm talking about the summary.
Roger G. Connor: You mean the -- the inter --
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: -- the report of interview here.
William J. Brennan, Jr.: Yes.
Roger G. Connor: Well, if he had read that over and approved it --
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: I think that, certainly, that would come in. It would certainly be allowable. We have no argument on that.
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: No, it's not the important thing if a complete statement were made up at the time of interview and approved by the witness.
Felix Frankfurter: What is wanted is the authentication.
Roger G. Connor: That is correct.
Earl Warren: But this was your witness who said that to take your -- your own view of the testimony as most favorable of the Government, that he thought it was handed to him. He thought he read it. He thought he signed it. Now, that's your -- that's -- that's your witness and as I understand it, there's nothing contrary to that in the record, is there, and -- and why shouldn't you be bound by it?
Roger G. Connor: No, Your Honor. He -- he said, at one point, "I didn't sign anything. I just -- and then there was a cross-question. "Alright, you didn't sign it." Then later, he thought he -- he had signed it --
Earl Warren: Yes. Well, but --
Roger G. Connor: -- and on another occasion --
Earl Warren: -- but --
Roger G. Connor: -- he wasn't sure.
Earl Warren: Yes, I know, but this is your witness. This isn't their -- this isn't their witness. This is your witness.
Roger G. Connor: That is correct.
Earl Warren: And you're bound by what your witness says.
Roger G. Connor: That is correct, but I -- I don't think --
Earl Warren: Then why aren't you bound by the things that he says in favor of the defendant, as well as the things that are said in favor of the Government? And if you are --
Roger G. Connor: I --
Earl Warren: -- if you are, why isn't this a statement that qualifies under Jencks? Because he said, "I think -- I think he showed it to me. I think I read it. I think I signed it." Now, if --
Roger G. Connor: And he --
Earl Warren: -- if you wanted --
Roger G. Connor: -- and then after that --
Earl Warren: -- to disprove that that was -- wasn't the fact, why couldn't you -- that that was the fact, why couldn't you have brought the agent there to say, "Well -- well, I didn't show it to him. He didn't sign it and I didn't read it to him."
Roger G. Connor: For a very good reason, Your Honor. The court pointed out to counsel in chambers when they had this one and a half hour conference about this matter that -- in fact, it was suggested by, I think, Mr. Louison, that the Government should call the agent, perhaps, to clarify this and the court said, "No, I can't allow that because the agent's testimony would be inadmissible." You may call him and he's available and you can subpoena him or you can have the Assistant U.S. --
Earl Warren: Is that in the record?
Roger G. Connor: Yes, Your Honor, it's in the transcript which we have filed with the Court.
John M. Harlan II: What page is that?
Roger G. Connor: Well, the -- the trans --
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: No, Your Honor, because we didn't know the -- the existence of this transcript until after the petition for certiorari had been granted here. On page 10 of our brief, we refer to this transcript in a footnote. The transcript itself or the -- the conference in chambers is referred to by the judge on page 211 of -- of this record, at the top of the page. He speaks of a one and a half hour conference that he had wherein he listened to arguments and we had a full discussion of the briefs and where I finally decided and made a conditional decision. Now, in this conference, I have the pages of the -- the typewritten transcript where this appears. On pages 1831 and 1832, the judge finally decided to follow this homely procedure of -- of showing the Interview Report to the witness which he apparently had done with other witnesses in this trial to see whether he -- he agreed with this and adopted it as a statement. And at that point, Mr. Louison said, "Your Honor, I think we should have Special Agent Toomey in here to explain where he got the document." The Court, "No, listen. Special Agent Toomey is a witness you have a right to subpoena and bring in here. Obviously -- let me tell you something, now, Mr. Louison, I'm glad you spoke of that and I'm glad Mr. O'Donnell has been over it. Obviously, no special agent, no peace officer can testify unless he can testify to something that is admissible. And --
Felix Frankfurter: What -- what were they talking about? I don't understand why -- it isn't axiomatically to me that what Toomey could have testified wasn't admissible or not.
Roger G. Connor: Well --
Felix Frankfurter: This is a right -- I don't know what the conflict.
Roger G. Connor: Because Toomey could offer no substantive evidence in the case. He had apparently only talked to this witness.
John M. Harlan II: That's what the judge was talking about, Judge McCarthy.
Roger G. Connor: That's right and secondly --
John M. Harlan II: The question of whether he could have testified to the contents of the statement --
Roger G. Connor: Yes.
John M. Harlan II: -- is an entirely different matter.
Roger G. Connor: That's right and secondly, if -- if it's a question then of impeaching Staula, the Government can't bring in Toomey and put him on the stand unless it thinks that it must impeach the witness.
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: Yes, he probably could have but apparently, it didn't occur to him.
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: Well, I -- I think he could have but -- but I don't think that injects error into this case.
Felix Frankfurter: No, but I want to know what this footnote is about. What were they talking about in chambers?
Roger G. Connor: Well, the conference is lengthy.
Felix Frankfurter: I know. What was the subject matter? What was -- why did they adjourn to the judge's chambers?
Roger G. Connor: They adjourned because at the end of one trial day, Staula was on the stand and counsel then made their demand and the Government info -- said --
Felix Frankfurter: Demand for -- for what you had called us for a note.
Roger G. Connor: That's right.
Felix Frankfurter: Suppose they agreed to call the non -- of the nonexistence or not available document notes and the document which is in existence a statement.
Roger G. Connor: Well, the document which is in existence is what we call a report of interview.
Felix Frankfurter: Alright, report of interview. Just to -- I want to differentiate the two. What was being discussed in chambers, whether the report of interview should be -- should be produced?
Roger G. Connor: I -- the discussion in chambers revolved around the original notes --
Felix Frankfurter: Alright.
Roger G. Connor: -- made by the agent and also, around this question of then shouldn't this also be produced in that the notes are not available. If they're not available, perhaps, we should be entitled to -- to this document.
Felix Frankfurter: Now, I want to know why Agent Toomey was -- why Judge McCarthy said he couldn't be called.
Roger G. Connor: Well, he --
Felix Frankfurter: As just -- Justice Brennan just indicates, he certainly could be called to testify whether the so-called notes were read and supplied to or rather signed by the petitioner, couldn't he?
Roger G. Connor: I think --
Felix Frankfurter: No doubt about that.
Roger G. Connor: -- I think that Judge McCarthy indeed could have called him in camera --
Felix Frankfurter: So, it couldn't have been --
Roger G. Connor: -- and examined him.
Felix Frankfurter: Were they talking about that?
Roger G. Connor: No.
Felix Frankfurter: That's what he told me.
Roger G. Connor: No, Mr. Louison suggested that the Government call him and Judge McCarthy pointed out that the Government couldn't do that. It would probably be reversible error because to put the agent on the stand as a government witness --
Felix Frankfurter: You say that he didn't sign it.
Roger G. Connor: No, no, but to put him on the stand and have him tell about what the witness told him at the interview may tend to support the witness. It may give the jury --
Felix Frankfurter: No, but -- but this is -- this is a preliminary inquiry as whether certain documents should be produced. We're not before the jury at the moment.
Roger G. Connor: That is correct.
Felix Frankfurter: We're -- we are in the judge's chamber who's to decide whether a call for document should be heeded.
Roger G. Connor: That is correct.
Felix Frankfurter: Now, and on that issue, I don't understand why Toomey wasn't avail -- or wasn't an admissible witness in that preliminary inquiry before Judge McCarthy.
Roger G. Connor: I think he would have been but I don't think he was offered or -- or --
Felix Frankfurter: That's -- that's -- I can't tell from this footnote what -- what it's all about.
Roger G. Connor: Well, it was --
Earl Warren: He wasn't offered by the Government but counsel for the defendant insisted that he should be -- should be in there and the Government refused to -- to produce him, isn't that right?
Roger G. Connor: No, Your Honor, I don't think the Government refused to. I think that --
Earl Warren: Well --
Roger G. Connor: -- that the judge said that "You may subpoena him as a witness." That was the language I -- I quote.
Earl Warren: Well, in other words --
Roger G. Connor: You may subpoena Toomey so he --
Earl Warren: -- in other words, a -- they -- he said it's the obligation of the defense to bring him instead of the obligation of the prosecution. Isn't that right?
Roger G. Connor: That is correct --
Earl Warren: Well --
Roger G. Connor: -- because --
Earl Warren: And --
Roger G. Connor: -- because the Government put him --
Earl Warren: But you don't mean that, if you'd wanted to, you couldn't have brought him.
Roger G. Connor: Well, I think he was available. He did testify in this case --
Earl Warren: No, no, I don't mean physically.
Roger G. Connor: -- at the outset.
Earl Warren: I don't mean physically but I mean if you wanted to establish in camera before the judge on this proceeding that the -- the notes had not been shown to the witness, that he had not been asked to approve them and that he had not signed them, you could have brought the agent there, could you not, and -- and had him testify? But you didn't want to do that.
Roger G. Connor: Well, I don't know what the explanation for that is. The Assistant U.S. Attorney may have felt that there was simply no need to do it here.
Felix Frankfurter: What -- what --
Earl Warren: Well, whatever reason it was, you didn't want to do it. Isn't that right?
Roger G. Connor: Well, I don't know his reasons.
Earl Warren: I didn't ask the reason.
Roger G. Connor: No.
Earl Warren: I said you didn't want to do it.
Roger G. Connor: Well, no, I don't think he did.
Earl Warren: Well, alright.
Felix Frankfurter: One would have to read, at least I would have to read, what's repeated, what -- how this conference to which footnote on this page occurs, what it was about and what it is that Judge McCarthy had in mind when he said, "You couldn't call the agent to give evidence." Of course, you couldn't call him up to give evidence as to what, what's his name? It's all about said but -- but what we're concerned with here is the circumstances that brought the original writings of the agent into light and secondly, what kind of things they were, whether they were within the -- the Jencks Act or not. And assuming they were within the Jencks statute and they're not being forthcoming, whether you could then -- whether the defendant could then call for the report of the interview. It was a very different question. They can't be all mixed up that you could ask about it.
Roger G. Connor: Well, I -- I think that if Your Honor reads that transcript, you will see that the court was trying to apply the statute, struggling for an interpretation of it in applying it in this case and perhaps, it didn't occur to him to call Agent Toomey in. He felt that -- that absent a sufficient showing by the defense counsel, that there -- there was some kind of a statement that had been destroyed that -- that he need not act further. He was satisfied when the Government told him that he didn't have the statement in its possession and -- and he indicated that -- that it was up to them to call.
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: That's correct.
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: Well, I think --
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: I -- I think, certainly, that would be a wise approach to take, perhaps, in -- in similar cases.
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: Well, perhaps, the judge could have acted differently than he did. What we are urging is that this was not reversible error because the defendants were given an opportunity to call to me. They knew his name. I think he was available because, in reading the entire transcript of the record, I think only one-ninth of it is before you. In reading the rest of it, I saw that Toomey appeared in the early part of the trial to identify some photographs, unless that is a different Toomey. Perhaps, counsel can correct me if I'm wrong there.
Felix Frankfurter: I misconceive this whole case and I may well have misconceived it. If I -- if it isn't a fact that it was conceded or assumed that what was originally recorded by the agent was no longer in existence, that on the basis of what is recorded, he, after, would make a report which was in existence.
Roger G. Connor: That is correct.
Felix Frankfurter: And all the shooting is about -- all the shooting is about is the production of that report or striking the testimony for failure to produce it. Isn't that what the case is about?
Roger G. Connor: Yes, I -- I think it is, Your Honor.
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: What --
Earl Warren: That's --
Roger G. Connor: Well -- well --
William J. Brennan, Jr.: (Inaudible) production of the summary (Inaudible) Now, qualifying (Inaudible) It was restricted in response to the motion that the defendants made to strike (Inaudible)
Felix Frankfurter: That's what I included in my statement.
William J. Brennan, Jr.: And it's only secondarily that that's going to be done or they're not entirely, at least alternatively, to have been allowed to use the summary (Inaudible)
Roger G. Connor: Well, I -- I think that if counsel would have conceded in answer to one question, if the summary had been made available, it certainly would have altered the -- the complexion of the case here. Now, as I see, I --
Felix Frankfurter: But one can assume --
Roger G. Connor: I think --
Felix Frankfurter: -- one can assume throughout that the original documentation is gone. Isn't that -- isn't that --
Roger G. Connor: That is correct --
Felix Frankfurter: -- the underlying --
Roger G. Connor: -- Your Honor.
Felix Frankfurter: -- assumption?
Roger G. Connor: Yes, it's a sound inference to draw.
Felix Frankfurter: Very well, I understand.
Roger G. Connor: If the original notes as --
Felix Frankfurter: Whatever you call them.
Roger G. Connor: -- as they're called here.
Felix Frankfurter: I call them whatever. They're gone. There's no controversy about they having been withheld but the controversy is the consequences of their non-availability.
Roger G. Connor: That is correct, Your Honor. And we do differ with petitioners' counsel in that we feel that no statement was ever shown to have been in existence adequately enough to lay the foundation for production here and that there was an avenue opened to them, namely calling the agent if they had any doubt about it. They have raised the issue here and then tried to impale the Government on the horns of a dilemma, whether to call the agent or not, possibly inject reversible error into the trial. And in this posture of the thing, we don't think the question has been, adequately enough, explored below to --
Felix Frankfurter: Well, I thought you didn't read what the case was about but -- but now, you -- you destroy my belief that was clear. You -- you suggest now that it wasn't sufficiently shown that the original document were not available. I thought you'd agree --
Roger G. Connor: No, I'm sorry, Your Honor. It's -- it's well shown that they were non-available. I don't think it was adequately shown that these original notes or documents that were destroyed were ever the kind of thing that would be producible under -- under the statute. I think that's where we take grave issue with the petitioners.
Felix Frankfurter: So that, if they were not producible, if they were not compellable under the Jencks statute, certainly, and then we wouldn't be compellable.
Roger G. Connor: That's -- that's correct, Your Honor.
Charles E. Whittaker: Well, even if --
Earl Warren: How --
Charles E. Whittaker: -- they weren't producible, there's no dispute -- there was no dispute at the trial about the fact that they were no longer in existence, isn't it?
Roger G. Connor: That is correct. There is no issue as to that, as I understand it.
Earl Warren: How is that established in the record?
Roger G. Connor: Your Honor, the fact that they were destroyed?
Earl Warren: That -- yes.
Roger G. Connor: Well, it wasn't affirmatively established in the record.
Earl Warren: Well, how was it established?
Roger G. Connor: Well, the Assistant U.S. Attorney told the court that he certainly didn't have in his possession any notes of this type and it's -- it's a common custom of the --
Earl Warren: No, let's not talk about custom. You say it was clearly established in the record that -- that the notes were destroyed. I asked you how and where that was clearly established.
Roger G. Connor: I don't think it is established.
Earl Warren: Well, then, we're -- then, you don't need to go any further.
Roger G. Connor: It is possible that the agent could have wrongfully secreted the notes but that isn't shown either and we have no reason to suspect, as one member of this Court said, that --
Earl Warren: Yes.
Roger G. Connor: -- federal officers go around looking for opportunities to --
Earl Warren: No, no, I wasn't saying that.
Roger G. Connor: -- engage in (Voice Overlap) --
Earl Warren: I was just trying to explore your statement that it was clearly established that the notes were not in existence. That's all I want -- all I want to ask you about, where -- where it was in the record. You say it isn't there, so that's all there is to it.
Roger G. Connor: Well --
Potter Stewart: What we do have is the bottom of page 201 on the top of page 202 and that's about it, isn't it? That's all we have.
Charles E. Whittaker: What's it about?
Roger G. Connor: That's about all.
William J. Brennan, Jr.: Now, Mr. Connor, we --
Roger G. Connor: -- plus --
William J. Brennan, Jr.: -- don't have any (Inaudible)
Potter Stewart: Excuse me, I'm sorry.
Roger G. Connor: Pardon?
Potter Stewart: Have you finished? I'm --
Roger G. Connor: Well --
Potter Stewart: Is there anything else besides the bottom of 201 and the top of 202 on this issue?
Roger G. Connor: No, except that in chambers --
Felix Frankfurter: What is it about?
Roger G. Connor: -- that this conference in chambers, something -- something occurred on this.
Earl Warren: And that isn't testimony, that's just a colloquy between the judge and -- and the Assistant District Attorney, isn't it?
Roger G. Connor: The conference in chambers?
Earl Warren: Yes.
Roger G. Connor: No --
Earl Warren: Who is Mr. Hurly?
Roger G. Connor: Counsel for petitioner were there, too.
Earl Warren: Who is Mr. Hurly?
Roger G. Connor: Law clerk of the judge, they -- they informed me. Mr. Hurly was --
Earl Warren: Well, the judge was in a colloquy there with his law clerk and [Laughter] that's -- that's the way we make the record.
Felix Frankfurter: Let me ask you this.
Roger G. Connor: Well, the judge -- [Laughter]
Felix Frankfurter: How did this --
Roger G. Connor: -- stated on the record that the conference was to be very informal and that everyone was to feel relaxed because they were in his chambers.
Felix Frankfurter: When -- when did it develop that there was in existence this report that is in existence? How did that come up? How did that come?
Roger G. Connor: You -- that there was an Interview Report?
Felix Frankfurter: Yes.
Roger G. Connor: The Assistant U.S. Attorney proffered it to the court. He said, "This is all I have."
Felix Frankfurter: But where is it printed at?
Roger G. Connor: Pardon?
Felix Frankfurter: Just turn to that in the record.
Roger G. Connor: Yes, it's at the end of the -- the record. It's at page 212. That is the -- the report.
Felix Frankfurter: Page 12?
Roger G. Connor: 212.
Earl Warren: Well, that's --
Felix Frankfurter: 212?
Earl Warren: 212, down below. That -- that --
Hugo L. Black: 212 at the bottom.
Earl Warren: That is the -- that is the statement but where -- where -- how did it come into the record? I understood Justice Frankfurter asked you.
Felix Frankfurter: My question is, how did the existence of that -- how did the existence of that disclosed?
Roger G. Connor: Well, when the -- when the court called on the Assistant U.S. Attorney to produce any documents he had, he gave them this.
Felix Frankfurter: Where is that page? I'd like to see it in the record.
Roger G. Connor: It's -- it's here.
Felix Frankfurter: I think that answers the Chief Justice's question and mine. I don't think it ever came out explicitly that the original so-called note was not available, except he clearly hasn't got them but he produces this. And that's why I say the presupposition is the assumption of everybody was that they weren't in existence.
Roger G. Connor: Your -- Your Honor, on page 201, at the bottom, the court says "Have you got in your possession any statement that was copied by an FBI agent which, in any way, would reflect a statement that this witness made? Which would in any way," he says. And Mr. Hobley, his clerk, says "No, Your Honor, we don't."
Felix Frankfurter: Well, he's quite wrong.
Roger G. Connor: He is the clerk to the Assistant U.S. Attorney, isn't he? He -- he is part of the U.S. Attorney's staff.
Earl Warren: What? The law clerk for the judge?
Felix Frankfurter: No.
Roger G. Connor: Well, they told me law clerk and I misunderstood them to --
Felix Frankfurter: He's an Assistant -- he's an Assistant US Attorney of a lower rank.
Roger G. Connor: Excuse me, Hobley and Hurly are two different people.
Earl Warren: Yes.
Roger G. Connor: So --
Earl Warren: Who's the clerk, Hobley or Hurly?
Speaker: Hurly.
Roger G. Connor: Hurly.
Earl Warren: Hurly.
Roger G. Connor: Now --
Felix Frankfurter: But -- but Mr. Connor, this must have -- something must have been said about this before that, wasn't it?
Roger G. Connor: I think there was at an earlier time.
Felix Frankfurter: "You see, Mr. Hurly," and he said he was a -- so that, it was -- if that is the transcript on page 201, Mr. Hurly, "It isn't. It is a report for an FBI agent which is a summary of the result of the interview. It is his interpretation of what happened." In other words, that's the second document.
Roger G. Connor: That is correct. This -- this is --
Felix Frankfurter: That would be the present controversy that's involved. They wanted -- no, no.
Roger G. Connor: No.
Felix Frankfurter: They wanted this produced or the evidence stricken.
Roger G. Connor: That is correct. They say that --
Felix Frankfurter: Now -- but -- but there must have been -- wasn't there earlier a number that it was said to the judge that "No, we can't produce that but we can produce this," wasn't there anything like that?
Roger G. Connor: I think, at some point back, they were told that they had --
Felix Frankfurter: That's what I thought.
Roger G. Connor: -- they had a report that bore on it but they had no statement producible within the statute.
Felix Frankfurter: And that is why I said, for me, throughout this proceeding, there was an assumption by everybody that the original documentation by Toomey was not available but they then offered this subsequent reporting, isn't that right?
Roger G. Connor: That is correct. The -- the Government gave that to the court and the court looked at it and saw the nature of it and then, after this conference in chambers which went on for a long time, he went back into the courtroom and gave this to the witness to see whether he would adopt it as a state, which the witness did not do.
Hugo L. Black: Then what happened?
Roger G. Connor: Then, as far as the court was concerned, that concluded it, that is, the witness wouldn't adopt it, so it certainly was not producible in -- in the way that the court saw the situation and the case proceeded.
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: Yes, Your Honor.
William J. Brennan, Jr.: Now, where do you find the linking of Staula (Inaudible)
Roger G. Connor: Well, I don't find anything directly on that that Staula said --
William J. Brennan, Jr.: (Inaudible) you might need any purpose that he made or the court made, copy of the statement?
Roger G. Connor: No, I think they were talking about something that the FBI agent wrote down.
William J. Brennan, Jr.: Now, what page is that? Four. (Inaudible) Yes.
Roger G. Connor: Yes.
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: He's the District Attorney.
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: He is another -- he is another Assistant U.S. Attorney.
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: No, he and Hobley were trying the case.
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: He was law clerk to the judge.
William J. Brennan, Jr.: Now, that's beforehand because the United States had possession (Inaudible) says "I do not have them in my possession. I do not know that they ever existed." The court, "Then you have to make Special Agent Toomey," (Inaudible)
Roger G. Connor: Yes.
William J. Brennan, Jr.: (Inaudible) find out for tomorrow morning or I could try (Inaudible)
Roger G. Connor: Yes. Well, in this transcript, I do recall that -- that the Assistant U.S. Attorney informs the judge in this hearing in chambers that he's checked with the FBI and that there are no such notes in existence.
William J. Brennan, Jr.: And that's all (Inaudible)
Roger G. Connor: Yes.
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: That's right. In fact, Your Honor, on page 204 where the asterisks appear near the top of the page, this is the end of the court day. And the judge stayed up until one in the morning, he said, looking for the Holy Grail, that is, the interpretation of the Jencks Act and the next day, this conference occurred in chambers. I believe it consumed a good part of the morning. It was after that that the court resumed trial and that's where Dominic Staula resumed testimony, as appears on this page. This gap is confusing otherwise but those asterisks really represent conference in chambers which is covered by that transcript which we have filed here. And in that transcript, somewhere, as my recollection, that the Assistant U.S. Attorney said that he checked with the FBI and that there were no such notes in existence. Now, exactly what --
Earl Warren: Did he say why they were no such note?
Roger G. Connor: Pardon?
Earl Warren: Did he say why they were no such notes?
Roger G. Connor: No, I don't believe he did. I don't believe he went into it. The judge, in this conference in his chambers, spoke of knowing about the FBI practices and how they go about interviewing witnesses and he knew that they often took written statements --
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: -- that were preserved and sometimes not.
William J. Brennan, Jr.: -- you're right about this as far as Staula (Inaudible) that he was talking about, as he said, he read back to him and he thought he signed it. He was never thought to (Inaudible)
Roger G. Connor: Well, I don't think he's very specific about it.
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: I don't think Staula uses the term "statement". He says that he told the agent his story and that they asked him some questions and they --
William J. Brennan, Jr.: (Inaudible) Certainly, he didn't talk about notes.
Roger G. Connor: No, I don't think he -- he talked about them writing down what he told them. Now, that could mean terse notes or --
William J. Brennan, Jr.: (Inaudible) notes.
Roger G. Connor: I say that it's most probable that they were notes because the -- if the FBI had taken a lengthy statement, they either would have him signed this, if it were a complete statement or even if he hadn't signed it, they probably would have retained it.
William J. Brennan, Jr.: (Inaudible) that statement or do you understand the FBI man?
Roger G. Connor: That is correct, Your Honor.
William J. Brennan, Jr.: There's nothing in the record done?
Roger G. Connor: No, nothing in the record but what I think is -- is a reasonable conclusion from the established practices.
William J. Brennan, Jr.: So, what (Inaudible)
Roger G. Connor: I -- well, for one thing, I've been in U.S. Attorney's office myself.
William J. Brennan, Jr.: (Inaudible)
Roger G. Connor: No, and --
Earl Warren: But you're here.
Roger G. Connor: I have talked to the FBI about their practices to -- to be sure that I -- that when I came here, I didn't make a mistake in -- in putting forth the Government's position and to see that I hadn't overlooked anything.
Earl Warren: Well, is it customary for the FBI, after -- after their agents have -- have interviewed a witness and they had written extensively and have shown it to the witness and the witness has adopted it as his own and signed it to thereafter destroy that document just because they made a summary? Is that the practice --
Roger G. Connor: No, no, sir.
Earl Warren: -- of the FBI?
Roger G. Connor: No, sir, anytime that a witness would sign a statement, it would always be retained.
Earl Warren: But you would --
Roger G. Connor: That is their established procedure.
Earl Warren: -- (Voice Overlap) your own witness here then by saying that he did not sign it? He says "I think I signed it."
Roger G. Connor: His --
Earl Warren: That's your own witness.
Roger G. Connor: Yes, but then he said, later, he wasn't sure. He was equivocal on this point. And the Government --
Earl Warren: Well, is there any --
Roger G. Connor: -- the Government can't help it if the witness' memory is poor and thinks he signed a statement when he didn't. That is the -- the difficulty.
Earl Warren: Well, but you do have the man who -- who should have a very accurate knowledge of it and you could produce him for this record if you had wanted to do it. You could have produced the agent who -- who had said, "I just took a few desultory notes and -- and I -- I said, generally speaking, is this what you told me? And -- and then, I went back and made a summary." He could have said that very easily and cleared up a lot of these matters if that was the fact but you didn't choose to do that or to use him for that purpose.
Roger G. Connor: Well, Your Honor, the judge asked the Assistant U.S. Attorney to check if he would and inform the court whether any such things were in existence and apparently, he did and the court felt that this was enough.
Earl Warren: Yes.
Roger G. Connor: That if -- if the defense wanted to explore it further, it had avenues opened to it.
Earl Warren: But you told me, a few moments ago, if I remember it correctly, that all -- all the United States Attorney reported was that there were no such notes in existence and I ask you if he also reported that there -- that there had or had not been any at one time and then they were later destroyed, and you said there was nothing of that kind. Now, if you were pursuing it to find out why -- why wouldn't you pursue that when you talked to your agent? "Are there such notes in existence as far as you know?" "No. There are none." "Were there any? Did you -- did you take any? And if so, what did you do with it?" But that --
Roger G. Connor: Well --
Earl Warren: -- that, apparently, was not brought to the attention of the Court and not made available to -- not made available to counsel, certainly.
Roger G. Connor: Well, I think the court, in the course of this conference, showed that he -- he assumed that undoubtedly, something had been written down by the agent but he also didn't assume that there was anything improper in -- in it now being non-available.
Felix Frankfurter: Mr. Connor, I have started to look through this transcript. It begins on page 1790 and as far as I've gone --
Roger G. Connor: You -- Your Honor--
Felix Frankfurter: -- several times, the United States representative said explicitly, "I'm requested to produce a non-existing document." He said that two or three times, which isn't challenged or questioned or in doubt or -- or seen as the odium thrown upon it. But I can't tell -- what precedes 1790? I can't tell what documents they're talking about. The judge is a notoriously defused talker.
Roger G. Connor: Yes, and he even makes some patriotic lectures --
Felix Frankfurter: Yes, I know.
Roger G. Connor: -- in the course of this transcript.
Felix Frankfurter: But I can't tell what they were talking about.
Roger G. Connor: Well --
Felix Frankfurter: How can I -- where is the rest of the transcript?
Roger G. Connor: The -- the --
Felix Frankfurter: What -- this begins at 1790 and this is taking place in the absence of a jury. So, something must have happened which provokes this chamber proceeding.
Roger G. Connor: Yes, what happened is what --
Felix Frankfurter: Well, don't you tell me, I want to know where I can get the stenographic minutes of what happened.
Roger G. Connor: Well, it's set forth in 204 in the record where they stopped with this problem of Staula's statement and --
Felix Frankfurter: So, what they're talking about in these -- in these stenographic minutes are what we're talking about here, is that it?
Roger G. Connor: That's correct, that's what we're (Voice Overlap) --
Felix Frankfurter: But then it's --
Roger G. Connor: -- in this Court.
Felix Frankfurter: -- as clear as a bell that everybody assumed. It was stated explicitly in plain unequivocal English that the documents, originally, whatever they -- their nature was, were not in existence.
Roger G. Connor: Yes.
Felix Frankfurter: Counsel can't stand by and allow such a statement made by U.S. Attorney and if they question it in their minds not to put their questions on their tongues. So, there wasn't any doubt about it that they were not in existence.
Roger G. Connor: No, that's what every -- that's what they all understood to be the case then.
Hugo L. Black: What was not in existence? I --
Roger G. Connor: The -- if -- if --
Felix Frankfurter: Whatever was taken down by Toomey.
Hugo L. Black: It seems --seems to me like --
Roger G. Connor: I think --
Hugo L. Black: -- if they began in 1790 and continued until 8 -- 1960 and I can't tell what it's about. What -- what is this thing here on page 212?
Roger G. Connor: Your Honor, on 212, we have the -- what we call the "Interview Report". Now, this is what the --
Hugo L. Black: Now, is that --
Roger G. Connor: -- FBI agent.
Hugo L. Black: -- admissible in your judgment?
Roger G. Connor: No, not under the -- it wasn't producible under the Jencks Act.
Hugo L. Black: Why?
Roger G. Connor: Because it -- it wasn't a written statement. It wasn't a statement of proof or adopted by the witness. He has specifically rejected it at the trial when it was shown to him.
Hugo L. Black: He said that he didn't give this statement?
Roger G. Connor: He said, "This isn't the way I told it to him. It's been --
Hugo L. Black: Did he say it wasn't--
Roger G. Connor: -- turned around."
Hugo L. Black: -- did he say it wasn't the truth?
Roger G. Connor: No, he didn't say it wasn't true. He said, "It isn't -- it isn't the way I told it to him." And --
Hugo L. Black: Did it --
Roger G. Connor: -- the point--
Hugo L. Black: -- did it conflict with what he had said or agree with what he had said?
Roger G. Connor: No. It -- it -- there are little ambiguities in this --
Hugo L. Black: Well --
Roger G. Connor: -- summary by the agent --
Hugo L. Black: I mean if --
Roger G. Connor: -- that don't accord --
Hugo L. Black: -- he -- this --
Roger G. Connor: -- to the way he testified.
Hugo L. Black: -- this statement says there were two individuals connected with the robbery. How many were --
Roger G. Connor: That is --
Hugo L. Black: -- were there according to him?
Roger G. Connor: There were three.
Hugo L. Black: And this is the statement of this witness that said there were two individuals and not three?
Roger G. Connor: No. He mentions two individuals, one man in a chino pants and another man in a blue suit. And then later on, the agent here, in reporting, says "Mr. Staula stated that he did not observe a third man in the bank." Now, that was what the -- the dispute is partly about here. If the agent uses this term "observe", it is ambiguous. He could have meant that the witness saw a third man but didn't observe his physiogamy.
Hugo L. Black: I don't want --
Roger G. Connor: Now --
Hugo L. Black: -- I don't want to get his --
Roger G. Connor: No, no, but --
Hugo L. Black: -- anymore in there, but I do want to ask this question because I haven't put it at least all of them and I haven't found this out. Non-existent, let's get back to that. Do you mean non-existent because they did not make any statement --
Roger G. Connor: No, Your Honor.
Hugo L. Black: -- or do you mean non-existent because it has been destroyed?
Roger G. Connor: We mean non-existent in a sense that whatever it was that the agent wrote down was destroyed --
Hugo L. Black: You do not mean --
Roger G. Connor: -- before --
Hugo L. Black: -- that no -- do you mean that no such statement was made as Staula testified to here where it was read back over to him?
Roger G. Connor: No, we don't contend that.
Hugo L. Black: Do you admit that one was made at that time?
Roger G. Connor: Well, we're -- we're saying that the agent wrote something down when he talked to Staula, that, we're sure of. And it might just be better to say that whatever this written matter was, it was destroyed.
Hugo L. Black: Has been destroyed.
Roger G. Connor: Whether it's a note or a statement or whatever.
Hugo L. Black: Yes, by then it --
Roger G. Connor: I'm --
Hugo L. Black: That's what you mean by non-existence?
Roger G. Connor: Yes, Your Honor.
Hugo L. Black: Thank you.
Roger G. Connor: And maybe that gets over the semantic problem a little bit to say that whatever it was the agent wrote down, he destroyed. Now --
John M. Harlan II: Would you be willing to stand on --
Roger G. Connor: Now --
John M. Harlan II: -- would you be willing to stand on the position taken by the Government in the brief because your brief is written without adding this additional point that you made that there never was a statement anyway?
Felix Frankfurter: He don't --
Roger G. Connor: Well, no, no, Your Honor.
John M. Harlan II: You probably misstated?
Roger G. Connor: If I misstated it, I'm sorry. I -- I meant to say that we didn't feel that, on the record here, there's been a showing that a statement producible under the Act had ever been destroyed. That if something was destroyed here --
John M. Harlan II: I understand that, but the only thing you argue in your brief is, number one, that since the original statement, notes, whatever you want to call it, were destroyed, therefore, you couldn't be required to produce this secondary thing as a substitute because the Agent -- because Staula has repudiated the secondary notes of the agent.
Roger G. Connor: That's -- that's correct, which, of course, gets back to one of the basic purposes.
John M. Harlan II: But now, you've been arguing, as I understand it, that apart from that, apart from that, that even though this statement had been -- the original statement had been in existence, it was a non-producible statement under the Act.
Roger G. Connor: Well, we say that there's certainly no showing that -- that it was a producible statement and the avenue is to establish this were open to the defense and that they could've called the agent and found out from him what he took from --
John M. Harlan II: Yes.
Roger G. Connor: -- from the witness. And that the Government would have been in a difficult position to do this, at least in open court. Now, it's also been raised here that the judge could have done it in camera. He didn't do it. But that still leaves us with a problem of whether that is reversible error. The judge here selected one method of dealing with this problem and we don't think that it was erroneous.
Felix Frankfurter: Two things that are clear, two things about which they ought not to be a dispute in anybody's mind when we arrive here tonight is, one, there was an original writing by Toomey which was, when asked to be produced, non-existent.
Roger G. Connor: That is correct.
Felix Frankfurter: And secondly, that there was a report by the agent based on those original -- on that original writing which is concededly not within the Jencks statute.
Roger G. Connor: That is correct, Your Honor, and --
Felix Frankfurter: And you -- then, the doubts that are raised is not the doubts, but you say that since the defendant was asked for the production of a document, it was incumbent upon them to come within the condition for the production laid down by the Jencks statute. And you say further that those -- that they have not made good that requirement of them to -- to have that document produced were it in existence --
Roger G. Connor: That is correct.
Felix Frankfurter: -- which is essential before they come to the next point, namely since it isn't in existence, the next best thing should be given to them or at least, if not, the evidence of the witness' about and this controversy struggles should be stricken.
Roger G. Connor: Yes, and --
Felix Frankfurter: That's the -- that sums it all up, doesn't it?
Roger G. Connor: That -- that essentially states our position, Your Honor. I see I only have a few minutes and I would like to briefly talk on another point that we haven't been able to develop and that is, this question may arise that if the witness rejected this Interview Report as being his statement, was it inaccurate? And was it so inaccurate that maybe it should have been made available? And our answer to that is no. In our brief, we have analyzed some of these discrepancies between the Interview Report and what Staula testified to on the stand and shown that they are not substantial and that the judge who saw this report and who heard the testimony of the witness didn't think they were substantial enough either that it should result in turning over this FBI report to the defense counsel. For a -- one of the points was how many men were in the bank according to Staula. He said on the stand there were three men. He told the agent -- well, at least according to the Interview Report, he didn't observe a third man in the bank. That could mean that there was a third man that he didn't see very well or that he didn't see anybody. And of course, this illustrates the equivocality that sometimes creeps into reports of an interview and why witnesses should not be confronted with them on the stand. This goes back to the congressional purpose behind the statute, fairness to the witness in the process of impeaching him at trial. I'd like to point out that no bad faith on the part of the Government has been demonstrated below and I don't believe was claimed in the briefs submitted here and that we do have the court and government counsel below trying to do what they thought was the right thing in complying with the statute. And that the procedures open to the defense were not completely used. If they had any doubts about this problem, they could have pursued it further but did not. And the record is, therefore, somewhat equivocal on this point. We submit that no injustice has been done in this case and a complete reading of the briefs will disclose that this is true. Thank you.
Earl Warren: Mr. Louison.
Melvin S. Louison: I think --
Earl Warren: Mr. Louison, before you start, would you mind just clearing up in my mind. There was some -- some little question as to whether you and your -- your counsel agreed on -- on the situation or disagreed. And I -- I would just like to pursue the one question that I asked you.Do you vouch for the fact that the Government did not do anything irregular or do you say that, for want of the information, you do not -- you do not contend that the Government did anything wrong?
Melvin S. Louison: That's --
Earl Warren: There -- there is a difference.
Melvin S. Louison: That's precisely what I intended. I think I used the words to Mr. Justice Frankfurter. I do not suggest any wrongdoing and of course, that was based on the fact that I had no evidence of it and as you sated about the same way you just did now to Mr. O'Donnell was precisely, as I understood, what I had said.
Felix Frankfurter: Did you ever suggest anywhere, anywhere before this answer, not that you suggested now, did you ever suggest anywhere either, one, that there might have been wrongdoing or two, that this is a nice way for the Government to get out of the Jencks case? Did you ever suggest that anywhere? Could I find it in your brief in the Court of Appeals?
Melvin S. Louison: Yes, the second thing you stated, Your Honor, is precisely what I have suggested --
Felix Frankfurter: That is my belief.
Melvin S. Louison: -- even to that conference in lobby, and I can read it for you which is just what I wanted to read.
Felix Frankfurter: Yes, I know, but it's my belief to that. But did you ever suggest anywhere, you never threw the slightest spec of dust on the wrongdoing in this case?
Melvin S. Louison: Did I throw it? No, Your Honor, I did not throw it.
Felix Frankfurter: Alright.
Melvin S. Louison: No. I had no evidence of it and I wasn't to suggest it, and I did not --
Felix Frankfurter: Your point was that it was immaterial --
Melvin S. Louison: -- want the FBI agent as my witness.
Felix Frankfurter: -- isn't it? Your point was that it's immaterial.
Melvin S. Louison: That's right, that there must be compliance with the statute or there's a vacuum. I do have my rights and I don't have my rights.
Felix Frankfurter: I understand that.
Melvin S. Louison: And if I may, if -- if it please the Court, read at this time, Judge McCarthy did say "I have a great-- " page 1806 of their transcript, "I have a great deal of confidence in this Bureau. I know how this Bureau operates." From -- there's an old accent Latin maxim, "ex nihilo nihil fit" from nothing -- nothing comes.If the original notes were destroyed, how, in the name of God, could a defendant bring in and have available for him that which a witness will say, "That was what he read back to me and I adopted it as the statement he made." "How are you going to show it?" In addressing the U.S. Attorney, he said, "All you've got to do if that's the case and defeat this Act by making copies and tearing up the originals." So, that point which you suggested as point two in which we impress upon the Court, it would happen way back at the time of the trial and was suggested in the Court of Appeals and it's pressed here in this Court.
Felix Frankfurter: That's a very different thing from what Mr. O'Donnell said at the bottom of this Court. Mr. O'Donnell --
Melvin S. Louison: All I say --
Felix Frankfurter: -- with regards to wrongdoing and you specifically disavowed it when I put it to you.
Melvin S. Louison: I don't wish to engage in quarrel with His Honor. All I say is that I have no evidence of wrongdoing and as the Chief Justice heard from what I said, it was what I intended to say and what I understood in my mind. I had no evidence of it and I was not about to suggest it because I do not consider it important to the outcome of this case.
Felix Frankfurter: But your associate had suggested that --
Melvin S. Louison: Therefore, I was not going to engage in quarrel with the Federal Bureau.
Felix Frankfurter: But your associate had suggested in words explicitly.
Melvin S. Louison: He said that there was an inference. He did not -- as I understood, of course, I don't speak for him. All I state is what my position was, as -- as the Chief Justice heard it and interpreted it.
Felix Frankfurter: Therefore, we ought to be slow in making charges against even government people, unless there's some (Inaudible).
Melvin S. Louison: [Laughs] That's alright. My time has expired, Your Honor.
Earl Warren: Well, when the red light comes on.
Melvin S. Louison: I see.
Earl Warren: You do have two or three minutes more, I think, if you wish to use it.
Melvin S. Louison: Then I wish to say this, Your Honor please. As the various Justices and yourself has interpreted this matter, it comes down to the point where assuming, now, all the best in favor of the Government but taking the position, as Mr. Justice Frankfurter stated, that there was a statement in existence at one time which was producible. Now, if that be so, now take the evidence in favor of the Government that it was either lost, destroyed or misplaced for nothing but the very best of reasons on behalf of the Government. What happens to -- to the defendants who have the protection of the statute and therefore, the statute was passed to limit the right to discovery after Jencks, and what -- what do we have now? The Government now says, "Well, we don't have it in our possession." And by the way, the statute says "in the possession of the United States". It does not limit it to the prosecuting attorney or any branch of the Government "in the possession of the United States." What do we have? The statute was passed to limit our demands. Now, we come within the limitations and we're left hanging in the air. And -- and I say that is -- that cannot be the intent of the Congress and as I read the prior cases in -- in the Rosenberg, Palermo, Jencks and what inferences you can take from all of them in the various opinions in them, there must be a solution and there must be an alternative. There must be a sanction, as I stated in my original argument. If the requirements of the statute are not complied with, then what happens? Now, true, the secondary evidence may be given to us or it may be stricken but there must be something. It can't be left hanging. You -- Your Honors will notice, when the time comes, that -- in studying the record, that it does appear in the record that Judge McCarthy ordered production of the statement. He says, "I will order it produced." There's been a foundation here. And then, he never referred to it again. It was left in a state of a suspended animation. Why? Because we're left with the same vacuum we're left here -- with here this afternoon. There seems to be no solution, unless our position is adopted that the solution as we -- the evidence is either stricken as is required by the statute or in the alternative, we get the secondary evidence. But I submit in closing that there must be a solution. The law wasn't intended to leave a vacuum.