Warren E. Burger: We will hear arguments next in 75-1906, Henderson against Kibbe. Mrs. Cohen, you may proceed when you are ready.
Lillian Zeisel Cohen: Thank you. Mr. Chief Justice and may it please the Court. The question presented by this case is whether a State Court criminal conviction should be set aside as fundamentally unfair, because the Trial Judge did not explain the issue of causation to the jury. The Court of Appeals for the Second Circuit answered this question in the affirmative “on the limited and singular facts of this case”. The court held that in this case the jury may not have been aware that they had to decide the issue of causation and alternatively that if the jury was aware of this element the instruction was not detailed enough. Petitioner believes that the decision below is erroneous. First, because the issue of causation was focused for the jury throughout the trial by the prosecution and by both defense lawyers. Second, because the record controverts respondent’s assumption that it would have been to his advantage to if had a detailed instruction on the issue of causation, and third, because the ultimate question that was decided by the court below and upon which its decision rests to wit whether the jury instruction was adequate was essentially a question of state law and not a matter for habeas corpus review. Respondent and his codefendant were convicted of the crime of murder in the second degree under a section of the New York Penal Law, which provides that a person is guilty of murder when under circumstances evincing a depraved indifference to human life. He recklessly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person. A defendant is reckless under New York Law when he is aware of and consciously disregards a substantial and unjustifiable risk that a particular result will occur. The facts in this case are essentially undisputed. On December 30, 1970 in the evening respondent Kibbe and his codefendant Roy Krall met a man named George Stafford in a bar in Rochester, New York. At that point, Stafford had already been refused service in the bar, because he had had so much to drink. Kibbe and Krall agreed to give Stafford a ride home when Stafford indicated that he was afraid to drive his own car. The defendants later admitted that they had already formed the intent to take the money, which Stafford had been flashing in the bar. First however, the three men went to two more bars, one of which refused Stafford service again. Kibbe and Krall then drove Stafford to a rural area outside of Rochester. They took his money. According to the defendants, Stafford lowered his trousers and took off his boots to show them that he had no more money. Stafford’s girlfriend testified at the trial however that in fact because of an injury to his leg he could not remove his right boot. However, Stafford’s state of undress is accounted for. The fact is that he was left essentially undressed at the side of a two-lane unlit road, which was banked on both sides by snow. The record establishes that it was four degrees outside. Stafford was not wearing his jacket or his boots. These were handed to him by respondent Kibbe with the advice that Stafford get inside so that he not freeze to death. One essential fact remains, and that is that at this point Kibbe and Krall drove off leaving Stafford on the side of the road having fallen into a snow bank, and they took with them his eyeglasses. Now there is no dispute.
Potter Stewart: What was first added two things. I did not understand your statement of facts. What advice do they give him?
Lillian Zeisel Cohen: They advised him to get inside so that he would not freeze to death.
Potter Stewart: What, inside his clothing or…
Lillian Zeisel Cohen: No, they advised him to get inside somewhere, they did not…
Potter Stewart: There was no inside, was there?
Lillian Zeisel Cohen: Well, this is the point. It is undisputed that there was an open gas station in the area. Krall in the statement he later gave to the police said that they left Stafford 75 feet away from this gas station. The prosecution introduced physical evidence to show that in fact Stafford had been left a quarter mile away from the gas station.
Potter Stewart: The gas station was,in any event, on the other side of the road?
Lillian Zeisel Cohen: That is the critical point. And not only was it on the other side of the road but Kibbe and Krall both acknowledged that they knew this. So, when they told him to get inside some place, and they knew that the gas station was on the other side of the road, they realized he had to cross the road. Moreover, Krall acknowledged, at least Krall acknowledged that there was in fact at that time on the road traffic going in both directions.
Potter Stewart: Since I have interrupted you, I did not understand you, what you told us about falling into a snow bank, who did that?
Lillian Zeisel Cohen: Stafford, when he left the car, fell into a snow bank of which I think is some indication of the drunken condition in which he was.
Potter Stewart: But he did not leave the road very far, did he?
Lillian Zeisel Cohen: No, apparently he could not leave the road very far, because it was snow banks on both sides of the road. He apparently fell into the snow that is on the side of the road.
Potter Stewart: Into, but not down the bank?
Lillian Zeisel Cohen: Not at all.
Potter Stewart: So far has anybody observed?
Lillian Zeisel Cohen: No, there is no intimation of that in the record. Half an hour later…
Potter Stewart: Was this, what kind of a road was this, a state two-lane road?
Lillian Zeisel Cohen: I gather it is a county road.
Potter Stewart: Monroe County?
Lillian Zeisel Cohen: Yes, and the main feature from our standpoint that is relevant is, that it was a two-lane highway and that there was no artificial lighting over here.
Potter Stewart: But I was wondering about how much traffic there was on?
Lillian Zeisel Cohen: Well, there is testimony on traffic, although respondent disputes the amount of traffic. As I say, Krall himself admitted that there were cars going in both directions at the time that they abandoned Stafford. At the time of the accident, which took place a half an hour later at least three cars converged on that point. And as we point out in the reply brief, the driver of the car which ultimately struck Stafford indicated that passersby as they came along after the accident stopped to give him assistance, so that there may not have been heavy rush hour traffic, which might exist in a major city.
Potter Stewart: That was the rush hour this was what 9 o’clock at night?
Lillian Zeisel Cohen: This was 09:30 in the evening, so that it may not have been a rush hour, but on the other hand it was not in the early morning hours when you would expect there would be very little traffic on the road. But there is affirmative evidence, the cars were passing on the road and there is the admission by Krall himself that there were cars going in both directions when they did abandon him at the side of the road. Half an hour…
Potter Stewart: Krall was not a party to this?
Lillian Zeisel Cohen: No, apparently he filed the petition jointly when this first begun, but I do not know that he apparently withdrew.
Potter Stewart: Record does not show?
Lillian Zeisel Cohen: No, I do not know the answer I am afraid, but he did not pursue it to the Second Circuit. Half an hour later after he was abandoned, Stafford was struck by a light pickup truck going 10 miles over the speed limit. The accident occurred one quarter mile away from the gas station. Stafford at the time of the accident was sitting in the middle of the lane on the same side of the highway as he had been abandoned.
Warren E. Burger: Let me get this in setting a little bit. This case was tried in the New York State Courts and the Trial Court?
Lillian Zeisel Cohen: Yes.
Warren E. Burger: And there was a conviction?
Lillian Zeisel Cohen: Yes.
Warren E. Burger: Then it was reviewed by the Appellate Division?
Lillian Zeisel Cohen: Yes.
Warren E. Burger: And they affirmed the conviction?
Lillian Zeisel Cohen: They did.
Warren E. Burger: And then what happened? It went to the Court of Appeals?
Lillian Zeisel Cohen: Then it went to the Court of Appeals.
Warren E. Burger: And they affirmed the conviction.
Lillian Zeisel Cohen: They affirmed the conviction.
Warren E. Burger: And then it went to United States District Judge on Habeas Corpus, so that is the fourth time around. And he said the trial was fair and there was no problem to find it out that no objection had been made at the trial on this issue.
Lillian Zeisel Cohen: Well, I think ultimately what is critical is that he looked at the alleged error in this case, and he felt that it was not a substantial violation and that he was simply being called upon to review jury instructions that that was not the province of habeas corpus review.
Warren E. Burger: It is only on the fifth time it got into one of the fifth courts of the judgment, the trial court was...
Lillian Zeisel Cohen: Must set aside, and I might add with one dissent that it was not unanimous decision by the Second Circuit. Now, from the beginning of this trial the two lawyers representing Kibbe and Krall attempted to shift the responsibility for what happened to the driver of the truck, Michael Blake. They did this in several ways. First, they cross-examined Michael Blake extensively about the circumstances under which he struck Stafford. They cross-examined the medical examiner to show that there was no chance that death was caused by anything except the impact from the truck, and they also argued this in summation, and they argued it very graphically, and I think very emotionally. Krall’s attorney actually said to the jury that if anyone in this case was depraved, and if anyone in this case caused Stafford’s death, it was Michael Blake, and interestingly, the officials had taken no action against him for his wrongdoing. At the same time they both pointedly disputed the forseeability of Stafford’s death. How they argued? Could Kibbe and Krall have foreseen when they left this man by the side of the road that along with come this pickup truck, driving 10 miles over the hour and that the driver would not swerve or brake?
Potter Stewart: Mrs. Cohen, was there any question in this case as to the immediate cause of death i.e. the being struck by the (Inaudible)?
Lillian Zeisel Cohen: No, that was firmly established. The injuries refer that…
Potter Stewart: No suggestion that he died from poisoning or for injuries received anywhere?
Lillian Zeisel Cohen: Nothing extraneous, no. It was clearly established that it was the impact of the truck and that was…
Potter Stewart: That was the sole immediate cause?
Lillian Zeisel Cohen: The sole immediate cause of death. Now, in short as the court below itself found the issue of causation was constantly being placed before the jury by the defense, and I might add the prosecutor responded in kind arguing that even though these defendants were not the sole cause of death, even though they were not the immediate cause of death, nevertheless they were responsible, and they were approximate cause of death. Now, not withstanding, the fact that the theory of the defense was to deny that Kibbe and Krall had caused death. Neither defense lawyer objected when the trial judge did not define the element of causation for the jury. We believe there are two…
Thurgood Marshall: And they neither raised in the Appellate Division either?
Lillian Zeisel Cohen: No, they did not, and it was the same lawyer at least representing respondent Kibbe who represented him on this direct appeal. The issue was raised in the Appellate Division by the dissenting Judge, and it was answered by the majority there, who believed that he was not deprived of the fair trial. It was first explicitly raised in behalf of these two defendants when the case got to the Court of Appeals. So that they did not take an objection at the time of the charge and as I indicated we believe there are two possible explanations for their decision. The first is that they were satisfied that the issue of causation had been focused for the jury. The second is that they realized that under New York Law, an explicit charge on causation would have effectively deprived them of the opportunity of arguing to the jury that it was the negligence of the driver that was to blame, and in that way attempting to sway the jury away from the responsibility of the defendants.
Warren E. Burger: The prosecutor on the contrary has emphasized to the great extents, the conduct in leaving the man out on the road and accountability that he would be exposed to great danger.
Lillian Zeisel Cohen: All of the arguments in this case are very emotional in that sense. The facts are really very dramatic. They are very unusual, but they are very dramatic. The picture of this very helpless man in the state of undress left in the freezing weather on the wrong side of road without his glasses. This was hammered out constantly, and that was hammered up by the prosecution to show responsibility, and it was disputed by the defense who said it simply was not foreseeable. With respect to counsel’s likely satisfaction that the issue was properly before the jury, I point to the statement by counsel for Krall who even before the charge to the jury said in summation, “You probably have the accounts well in mind since we have all gone over it.” Now at that point, in the trial, the indictment had been read to the jury by Kibbe’s counsel in summation. It had been outlined by the District Attorney in his opening. The record indicates that it was read to the jury during the voir dire as each new panel was brought in. Thereafter, Krall’s attorney proceeded to read the indictment to the jury, and the Judge at the beginning of his charge read the indictment to the jury. The Judge also read the provisions of the statute after emphasizing that every element of the crime had to be proved beyond a reasonable doubt, and ultimately while the jury was deliberating the indictment was given to them so that they could track the charges. Despite these repeated statements of the law to the jury and despite the fact the causation was argued so graphically to the jury by both defense counsels, the court below questioned whether the jury was aware that it had to decide the issue of causation. This conclusion in my opinion cannot be sustained on the record in this case, and we believe that the explanation for the court's speculation that the jury may not have been aware of this issue, which was the focus of the trial was it is failure to make an analysis of this trial as mandated by this Court in Cupp against Naughten. In Cupp, this Court specifically reaffirmed what it called a fundamental principle that a single jury instruction may not be evaluated only in the context of the overall charge, but in the context of the entire trial.
Potter Stewart: There was nothing very new about that idea.
Lillian Zeisel Cohen: No, the Court used the words, "fundamental principle", it took it as a given, and in doing so emphasized the relevance of the witness’s testimony and the relevance of the arguments of counsel. In the instant case, and so far as this Court below acknowledged these factors, they did it in a footnote considering the fact that this is supposed to be an alternate holding in the case, and they discounted them in much the same way that they discounted the relevance of reading the statute and reading the indictment to the jury, that is, they lifted each of these factors out of the context of the trial, and they examined them one by one, and they rejected them, instead of making the overall evaluation, which Cupp requires of whether or not the trial as a whole was fundamentally fair. Now, respondent attempts to distinguish Cupp on the grounds that the alleged error there was corrected within the confines of the charge itself, and there was no recourse to the other events of the trial. To me, this argument highlights the real distinction between Cupp and this case. Cupp involved a challenge to an affirmative instruction to the jury. The jury was told there that it should find that the prosecution’s witnesses had told the truth unless the presumption of truthfulness was overcome. Therefore in Cupp it became necessary to determine whether anything in the remainder of the charge offset the impact on the minds of the jury of that directive by the trial judge. The Instein (ph) case is quite different. The charge to the jury in the Instein (ph) case was perfectly adequate as far as it went, and in fact the court below characterized much of the charge scrupulous. We believe that because the trial judge did not affirmatively mislead the jury, did not affirmatively say anything to them, which had to be erased from their minds.
Warren E. Burger: We will resume there up to 1 o’clock Mrs. Cohen. Mrs. Cohen you may continue.
Lillian Zeisel Cohen: Thank you. Mr. Chief Justice, and may it please the Court. Before the recess I was addressing respondent’s contention that Cupp against Naughten was simply a case involving a self-correcting instruction. Petitioner believes that this argument ignores the analysis that was endorsed by the Court in Cupp without I might add denying its validity. In fact because Cupp involved a challenge to an affirmative instruction to the jury whereas this case involves an omission, resort to what happened during the remainder of the trial becomes even more germane. Because the Trial Judge in this case did not affirmatively misadvised the jury or mislead the jury, there was nothing which had to be erased from the minds of the jurors or as respondent says, neutralized. There was no infection of the rest of the trial. The rest of the trial was perfectly adequate. Therefore, the question is simply, whether the record as a whole shows that the gap in the charge was effectively filled by the events at trial, an approach which is consistent not only with Cupp but which is consistent with the approach used in all habeas corpus review. In addition to its failure to properly apply Cupp the Circuit Court in its evaluation of this State Court instruction also failed to credit factors upon which it has relied in its own cases to sustain its own federal convictions. In a series of cases of which the best example is United States against Papa, in 533 F.2d. The court below, sustained federal narcotics conspiracy convictions despite the failure in each of those cases, on the part of the Trial Judge to charge the element of knowledge to the jury. In each instance, the Circuit Court determined that the jury was aware of the missing element, because the District Judge had read to the jury both the statute and the indictment. In Papa it was done repeatedly as it was done in this case. It is clear therefore that by refusing to give due weight to the same factors that it has relied upon in reviewing its own convictions, the court below was effectively holding this State Court Trial Judge to a higher standard than it has held its own District Judges.
Speaker: Would you be making the same argument or with the same issue being here or any other if the gentleman had been abandoned with his clothes on at the same spot, and he had managed to crawl to the fueling station, and then he was murdered inside the filling station by some friends?
Lillian Zeisel Cohen: Well, again there presupposes -- there are certain facts...
Speaker: Perhaps you had never prosecuted them, but assume you had, would this kind of an instruction had been adequate to pose the question?
Lillian Zeisel Cohen: Well, New York Law, so far as we have been able to determine, has no standard or evaluation of contributory negligence, and certainly does not seem to follow the decision cited by the respondent, the North Carolina decision which is to the effect that if the victim has found safety, and then for reasons of his own, abandons it, and is then injured or killed, that is not foreseeable. New York does not seem to have a...
Speaker: He never found safety apparently as soon as he got to the filling station he was killed by somebody else. Now is that -- of course he never would have been out there, he never would have had to go to and got in the filling station except for the fact that these people abandoned him there.
Lillian Zeisel Cohen: Well, the question ultimately would have been the same question it is in this case, and that is was it foreseeable that when they left this man at the side of the road he would then be killed for example...
Speaker: That is not what the instructions said, is it?
Lillian Zeisel Cohen: The instructions to the jury in this case said...
Speaker: They said, it makes him cause alright, but did not talk about foreseeability. Are you now suggesting that perhaps the issue really was foreseeability or…
Lillian Zeisel Cohen: The issue was foreseeability throughout the trial.
Speaker: Well then how the jury know that the issue was foreseeability?
Lillian Zeisel Cohen: They knew that the issue was foreseeability, because it was argued to them effectively by all three lawyers in this case, the prosecution, and the two defense lawyers.
Speaker: Then the judge says do not listen to them, I will give you the law.
Lillian Zeisel Cohen: No, on the contrary the judge said to them very explicitly, so long as you find the basis for counsel’s arguments in the evidence you may follow counsel’s arguments in reaching your conclusion, and I do not believe even in the decisions of the Circuit Court reviewing its own convictions it has concluded that a single statement by the judge that I am the source of the law effectively wipes out the impact of the other arguments that it has.
Speaker: The issue would be the same here if he had been struck by lightening on wrong side of the road.
Lillian Zeisel Cohen: The issue would have been foreseeability, the difference would have been that as a matter of New York Law, I would suggest that that would have been an intervening, a superseding cause, and there might have been a different case in that case.
Speaker: Well, I know, but the instruction that was given to them would not distinguish between any of the three cases; the actual case, the filling station case or the lightening case?
Lillian Zeisel Cohen: Yes, but on the other hand we are simply dealing with the facts of this case, and it is our argument in this case that had there been an explicit instruction to the jury in this case unforeseeability, the result would have been that the defense would not have had available to it the negligence that was involved in this case, in argument to the jury that the defendants were not responsible. I think we have to sort of focus on what happened in this particular case. It is possible to conceive of all kinds of hypothetical happenings, but that is not what happened in this case. In this case there was simply a negligent driver who came along the road. Under New York Law, this would have been regarded as within the foreseeable consequences of leaving this man by the side of the road in a helpless condition.
Speaker: Did this judge give the usually or at least frequently given charge that you are to evaluate things in the light of ordinary human experience?
Lillian Zeisel Cohen: Well, he had certainly instructed them on the need to prove things beyond a reasonable doubt and indicated to them what a reasonable doubt might be. I do not recall that he specifically said that you may rely in your commonsense. On the other hand, that was specifically argued to the jury by the District Attorney. As a matter of commonsense, when you look at what happened in this case it must be self-evident that these men leaving this victim by the side of the road in his condition would have foreseen as reasonable man that this was a consequence of their actions.
Potter Stewart: Is it common ground between you and your adversary, what the proper instruction would have been; had it been given?
Lillian Zeisel Cohen: Your Honor, until our reply brief there was never any discussion of what New York Law was, and that is one of the problems that we have with the opinion below. It was not argued to the Circuit Court. The Circuit Court in concluding that an instruction on causation might have been helpful never had recourse to New York Law. Instead it discussed the various decisions from other jurisdictions many of them very old.
Potter Stewart: Well, my question is, is it clear what the instruction should have been; had it been given?
Lillian Zeisel Cohen: In our view the instruction and the…
Potter Stewart: No, not in your view, my question is, is it clear; is New York clear what the instruction should have been if the instruction had been given?
Lillian Zeisel Cohen: I think yes, and certainly the decision by the Court of Appeals in this particular case reaffirms that the instruction in this case would have been that now withstanding the fact that the defendants in this case were not the sole or the immediate cause if it was foreseeable that their conduct would have resulted in the death by vehicle of this victim then you may convict him, you may convict them.
Potter Stewart: Is it different from the ordinary concepts of approximate cause in a tort case in New York?
Lillian Zeisel Cohen: No, I do not think it is different in the sense of the standard. It is still a reasonable man standard, but it is just that there is a different degree of negligence that is required.
Potter Stewart: Well, this is not negligence. We are talking about approximate cause.
Lillian Zeisel Cohen: Well, in this case these defendants were held to recklessness. The charge from the jury was that you had to find that these men were aware of and consciously disregarded a substantial risk.
Potter Stewart: Well, you have to find that what they did, caused his death.
Lillian Zeisel Cohen: That is right.
Potter Stewart: But my question is, is cause the same, within the meaning of this statute, the same as concepts of approximate cause under New York Tort Law?
Lillian Zeisel Cohen: In the analysis, I would say yes, but in terms of the degree of culpability required, no. In Kibbe...
Potter Stewart: Now my question is do you conceive what your adversary contents that the prosecuting attorney in fact gave an erroneous description of cause?
Lillian Zeisel Cohen: Not at all. We dispute that in the teply brief.
Potter Stewart: Then it is not common ground as to what the instruction should have been, is it?
Lillian Zeisel Cohen: Well, no, I beg to differ on that because the respondent has never argued this case in terms of what the New York Law was.
Potter Stewart: But you relied Gadiel (ph), you say, yes the Trial Judge did fail to give any instruction on the meaning of the word 'cause' under this statute, but you say all of those blanks were filled in by argument of counsel, and among other things the prosecutor argued it at some length, but your adversary says but he gave the wrong concept of cause, he gave a but-for.
Lillian Zeisel Cohen: Under New York Laws we point out in the Reply Brief, but-for certainly enters into the consideration in this case and in every case where causation is involved. It is not the sole element that maybe considered, and it was not…
Potter Stewart: But the prosecutor told the jury it was.
Lillian Zeisel Cohen: No, I do not believe that he did in this case. He did discuss the but-for element and the respondent has conceded that that is a relevant element, but he did do it in the context of an argument, which was essentially a foreseeability argument. In other words, we believe that respondent essentially lifted that but-for statement out of the context of the entire trial, not simply out of the context of the summation of District Attorney.
Potter Stewart: I am not clear about your answer to my first question which was, is it clear what the instruction should have been if it had been given? And if it is clear then I suppose you and your adversary agree on what it would have been.
Potter Stewart: If it is not clear, I suppose you to… I cannot point you to a model instruction on causation.
Lillian Zeisel Cohen: I can only point you to the New York decisions, which have dealt with the question of causation, and from those I have submitted to the Court what I believe a correct instruction would have been.
Potter Stewart: That is the New York Court of Appeals.
Lillian Zeisel Cohen: The New York Court of Appeals that these instructions which we have submitted to this Court in our Reply Brief is the appropriate instruction.
Potter Stewart: But here there was no instruction.
Lillian Zeisel Cohen: There was no instruction in this case.
Speaker: On the other hand…
Lillian Zeisel Cohen: There was none asked for, and interestingly counsel did make requests to the Court for certain instructions relating to this particular statute, but not relating to the element of causation.
Speaker: Would you defend that instruction if the instruction had said and now I want to define causation for you.
Lillian Zeisel Cohen: If that were the sole instruction on causation that would not be an adequate for instruction.
Speaker: What provision of constitution would that offend?
Lillian Zeisel Cohen: I do not think it would offend any.
Speaker: Well that is what I asked you which is -- is it an constitutional instruction?
Lillian Zeisel Cohen: I do not say that what happened here or the hypothetical that you posed to me raises a question of constitutional law, that is where we ultimately take issue with what the Court did below, because in essence the court below...
Speaker: What do you understand your opponents do or the court below do held that the constitutional infirmity was in the instruction?
Lillian Zeisel Cohen: The court below seems to say that because there are some questions of whether or not the jury was aware of the element of causation, there was no finding beyond a reasonable doubt by the jury on the issue of causation.
Speaker: I see.
Lillian Zeisel Cohen: However, the court below does not state that across the Board, they certainly do not cite any authority to support what is essentially a pro se argument.
Speaker: What is in some constitutional rationale based on lack of fault or lack of intent or anything like that?
Lillian Zeisel Cohen: I do not understand them to be reaching out to decide a broad constitutional principle on this case.
Warren E. Burger: Is it possible that the defense carefully and studiously avoided the request for instruction on causation on the grounds that the less said about causation the better it would be for the defendant?
Lillian Zeisel Cohen: This is the thrust of our Reply Brief, because although the law in New York, prior to the Kibbe decision in the Court of Appeals, was sparse.
John Paul Stevens: Mrs. Cohen before you sit down would you tell me because I am little lost in the papers, where in the papers your understanding of the correct instruction appears?
Lillian Zeisel Cohen: We addressed this in our Reply Brief.
John Paul Stevens: In your Reply Brief, you actually set out an instruction you think it is correct?
Lillian Zeisel Cohen: Which I believe they would have been entitled to, and which we believe would have precluded the defense in this case from using the emotional argument to the jury that it was Blake’s fault, and that he was the one who was responsible.
Warren E. Burger: I think that your sample instruction on page 4 of your Reply Brief is taken verbatim from LaFave & Scott or have you adapted it?
Lillian Zeisel Cohen: The discussion of LaFave & Scott on our part I think is gratuitous and was simply engaged in for purposes of showing that…
Warren E. Burger: That is not my question.
Lillian Zeisel Cohen: No, the hypothetical is verbatim from LaFave & Scott.
Speaker: I used this as…
Lillian Zeisel Cohen: As Hornbook Law they regard what happened in this case as wholly foreseeable.
Speaker: Mrs. Cohen, I think that Mr. Justice Stewart asked you this, but I did not hear your answer.
Lillian Zeisel Cohen: Yes, he was convicted.
Warren E. Burger: Very well.
Sheila Ginsberg: Mr. Chief Justice, and may it please the Court.
Warren E. Burger: You mean it is not foreseeable that some automobiles would be traveling on that road?
Sheila Ginsberg: Well, Your Honor, the requirements of foreseeability in this case are that the defendant be aware of the risk of death by the specific agency that actually inflicted the harm.
Warren E. Burger: Well, if the defendant was driving a car there, why should it not be foreseeable that other people would be driving there, when the road is provided for that purpose?
Sheila Ginsberg: Well, that is true Your Honor, but it was a narrow roadway.
Thurgood Marshall: I am very interested in the awareness of a drunken man.
Sheila Ginsberg: No, Your Honor I think that there is some dispute about that.
Thurgood Marshall: Well, do you see several people walking around on a public road with no boots and pants on, is that normal?
Sheila Ginsberg: Your Honor, I have to dispute the fact that Stafford did not have his pants on.
Thurgood Marshall: Is there any contradiction that at least two bars interested in making money refused to serve him for the reason that he was drunk?
Sheila Ginsberg: No, Your Honor, the record does establish that but the…
Thurgood Marshall: Well, do you consider that a person in that condition is “aware”.
Sheila Ginsberg: Well, Your Honor, I would say that it depends on the individual.
Thurgood Marshall: But the record does not show that; it said, because he was drunk.
Sheila Ginsberg: Well, but the record also shows Your Honor that the medical examiner...
Thurgood Marshall: Are you disputing that he was drunk?
Sheila Ginsberg: Excuse me Your Honor.
Thurgood Marshall: Do you dispute that he was drunk?
Sheila Ginsberg: Yes, Your Honor, I will.
Speaker: (Inaudible).
Sheila Ginsberg: Well, Your Honor beyond that…
Speaker: When you do it, maybe he was drunk.
Sheila Ginsberg: He was intoxicated, yes.
Speaker: And the difference is?
Sheila Ginsberg: That at his level of intoxication, he may well have been aware and the defense contended he was of this avenue of safety.
John Paul Stevens: Ms. Ginsberg, may I interrupt for a moment.
Sheila Ginsberg: Yes I do, Your Honor.
John Paul Stevens: But why should that affect the normal rule that where there are disputes you presume the jury resolved the disputes in favor of the bailing side.
Sheila Ginsberg: That is a situation in which the jury has been properly and adequately instructed on the elements of the crime.
John Paul Stevens: Do you agree with your opponent’s version of what the proper instruction would have been?
Sheila Ginsberg: Well, Your Honor, I agree certainly that foreseeability is one of the essential requirements in a causation instruction.
John Paul Stevens: Then which is a stricter standard, foreseeability or recklessness?
Sheila Ginsberg: Foreseeability is a much stricter standard.
John Paul Stevens: Well, how specific does that have to be a particular truck or by a moving vehicle on the highway?
Sheila Ginsberg: By a moving vehicle on the highway.
John Paul Stevens: Was there any argument in the case that there was any risk of death other than by vehicle?
Speaker: Sure, by freezing exposure to freezing.
Sheila Ginsberg: Exactly, Your Honor, the prosecution contended that leaving him on the side of the road in the middle of the winter, exposed him to the risk of death by exposure.
Speaker: Well, with all respect to you and to my colleagues we are not here trying the innocence or guilt of this person or trying to evaluate the merits of this lawsuit, but simply to determine whether the Court of Appeals is correct in holding that it was a constitutional violation for the trial judge not to specifically instruct on the meaning of the word ‘cause’ under the New York statute.
Sheila Ginsberg: Exactly, Your Honor.
Speaker: Certainly there can be no serious claim that the jury did not find every element of the crime beyond a reasonable doubt, because they were instructed correctly as to the burden of proof of the prosecution beyond a reasonable doubt, and they were given this statute in (Inaudible) which uses the word ‘cause’ and so there can be no serious question of what the jury found beyond a reasonable doubt that your client caused this person’s death.
Sheila Ginsberg: Well, Your Honor, what I would say is that in this context on the difficult facts of this case, and the complex in intricate problems of causation presented by this case.
Speaker: As a matter of New York Law, you are mistaking, aren't you?
Speaker: That is a matter of New York Law.
Sheila Ginsberg: I have to take issue with that.
Speaker: They affirmed the conviction, did not they?
Sheila Ginsberg: They did affirm the conviction.
Warren E. Burger: That is perhaps because they did not think it was a significant issue at all at that stage.
Sheila Ginsberg: No, Your Honor, I do not believe that that was a...
Speaker: So, you have either presented the issue to the State Courts and had it rejected or you have not exhausted your State remedy yet.
Sheila Ginsberg: Oh, it was presented to the State Courts as petitioner conceived...
Speaker: Well, and then it has been rejected by the State Courts, and that is enough to let you in the Federal Court, is that right?
Sheila Ginsberg: Yes, exactly Your Honor, that is certainly so.
Warren E. Burger: But what do you have to say about the question I put to your friend or the state that any additional, any clarification that was subject to causation was carefully avoided by the defense, because the less said about causation the better for the defense, is that a tactic of the defense?
Sheila Ginsberg: Absolutely not, Your Honor.
Warren E. Burger: Well, what is there in this record that will suggest or support your answer?
Sheila Ginsberg: As a preliminary matter I would like to say that the Second Circuit specifically found that the failure to object in this case was an inadvertent failure that counsel having argued as he did prior to trial, and at the close of the States case that causation had not been established to you.
Warren E. Burger: Then what explanations have you for the defense not requesting it?
Sheila Ginsberg: Your Honor, I was not of course trial counsel and I cannot speak from personal firsthand knowledge, but I would say that it was just inadvertence.
Warren E. Burger: Well, but having discussed the subject as much as it was discussed and having contemplated it enough to talk about it in extents so in the closing arguments, isn't it remarkable to suggest that that is an inadvertent oversight?
Sheila Ginsberg: Well, Your Honor, I do not think so.
Potter Stewart: Well, the New York Courts have differed with you on that.
Sheila Ginsberg: What I would have to say in answer to that, Your Honor, is that in fact in Kibbe itself when the court was addressing the question of sufficiency of the evidence on the question of causation, the Courts specifically held that it was critical to a finding of causation that the injury to Stafford be foreseeable.
John Paul Stevens: Ms. Ginsberg, can I ask about that?
Sheila Ginsberg: Your Honor, not in this proceeding, we do not.
John Paul Stevens: Well, then would you not agree that we must accept at least this much of the jury verdict, as having to establish that the defendant had the requisite intent to commit the crime?
Sheila Ginsberg: This particular statute under New York Law does not as the Second Circuit noted in a footnote, required intent.
John Paul Stevens: But as recklessness, it requires an element of recklessness as tantamount to an intent.
Sheila Ginsberg: Well, yes but as I pointed out recklessness does not lead to standards of…
John Paul Stevens: Of the foreseeability?
Sheila Ginsberg: Exactly.
John Paul Stevens: I understand your point.
Sheila Ginsberg: Your Honor, this is not as I understand is the charge that the state relies on, this is hypothetical taken from LaFave & Scott and it is inapposite to the fact of our case.
John Paul Stevens: Well, then just so that I am trying to understand we do not really know as between you and your opponent what instruction would have been acceptable to both of you.
Sheila Ginsberg: No it does not. The defense…
John Paul Stevens: So, do we know in the papers anywhere what precise instruction you say was constitutional error for the judge to fail to give on his own?
Sheila Ginsberg: Well, Your Honor, we did not draft a model instruction, but it was our position that the instruction had to include within it, explanations of superseding cause independent intervening cause in that regard...
John Paul Stevens: And, if in giving that explanation the judge had made a comment somewhat comparable to the last clause, the one here, that in his judgment this could well be foreseeable within what I have described to you then that would not have helped you very much.
Sheila Ginsberg: No, Your Honor, it does not.
John Paul Stevens: Can you tell me what do you think the correct instruction would have been right now?
Sheila Ginsberg: You may not find if I can phrase it in the negative that the defendants are guilty or have caused Stafford’s death.
John Paul Stevens: Thank you.
Thurgood Marshall: Do you have any case for that?
Sheila Ginsberg: For what, Your Honor?
Thurgood Marshall: For that charge.
Sheila Ginsberg: Yes Your Honor, I think that People against Kane cited too by the petitioners.
Thurgood Marshall: What was the charge in that case?
Sheila Ginsberg: Well, I do not know that the Kane case sets forth a charge, but it makes clear that under New York Law intervening negligence.
Thurgood Marshall: It seems though quite a few of us are interested in just what charge -- I understand your complaint is that New York, under its law, should have given a “charge” and we have got everything but the quote and end quote.
Sheila Ginsberg: Well, Your Honor, as I think I have said that charge must include directions as to foreseeability and superseding cause, and I think I do not believe that anything that the petitioners have said here this morning refutes that.
Warren E. Burger: Does not this bring us around if not full circle or close to the staring point that this is why objections are called for in the trial of a case?
Sheila Ginsberg: Well, Your Honor, I would intend or have to conceive that a request would have been helpful, but as the Second Circuit found the failure to request was inadvertent.
Thurgood Marshall: How did the end of burdens run all the way up to the Appellate Division, did not we?
Sheila Ginsberg: Well, Your Honor, again I cannot speak to that, but I would point out as it is been pointed out to me the Appellate Division did consider this charge on the merits.
Thurgood Marshall: Well, if they had then I guess this point never would have gotten, Would it?
Sheila Ginsberg: Well, Your Honor…
Thurgood Marshall: I mean if we had left it to counsel for the petitioner, he never would have released it to the respondent to the respondent, he never would have raised it.
Sheila Ginsberg: Well, I do not know that that is so.
Speaker: Where do you locate in the constitution this requirement to give a foreseeability instruction?
Sheila Ginsberg: That is correct.
Speaker: Not because my brother Stewart said the jury did not find cause in finding a guilty, that he must have, he said really now you must find causation and the jury finds him guilty, so they found causation.
Sheila Ginsberg: Well, as I know that Your Honor is aware that did not happen in this case.
Speaker: I know but you would still be with us on the same ground, and I am sure you would.
Sheila Ginsberg: The Second Circuit found and we assert here that the failure to explain causation precluded the jurors from finding that element beyond a reasonable doubt.
Speaker: No, the judge said you must find causation, and they found causation.
Sheila Ginsberg: Well, it is not a matter of might Your Honor, it is an absolute fact or a certainty, if you will, uninstructed it was…
Speaker: It was instructed in my example on causation, and so was this jury on causation.
Sheila Ginsberg: Well, Your Honor, but the instruction given or the example given by the prosecutor was…
Speaker: Well, the jury were just left for you to find causation the way I guess they decided what causation meant, and where do they found it.
Sheila Ginsberg: Well, Your Honor, it is our position that if the judge's failure to identify causation is an issue or to specifically direct that the jury find causation, communicated to the jury the belief that causation was to be assumed.
Speaker: The jury must have agreed with them, they at least found but-for cause.
Sheila Ginsberg: But that is not the test, and that is tantamount to know finding of causation at all.
Speaker: Well, I do not see where you get that.
Sheila Ginsberg: It is tantamount on these facts to not finding causation at all because…
Speaker: Well, I know you keep saying that, but I am not sure I will ever believe it, now also you said.
Sheila Ginsberg: Uninstructed or if you will under the guidance of the prosecutor, the jury...
Speaker: But do you see that -- let us assume the judge had been instructed on but-for cause and said look jury, here is what I mean by cause, it means but-for, that is all and then explain what but-for was, would you be here?
Sheila Ginsberg: Well, with the caveat that that is not what happened here, that the judge told the jurors that he alone would instruct on the law, and then failed to tell them anything about causation.
Speaker: If they had not left him by the road he probably would not have been runover?
Sheila Ginsberg: Well, Your Honor, but as you pointed out in the course of the petitioner’s argument under this misconception if respondents having left Stafford on the side of the road if he was subsequently hit by lightening or hit by a crashing plane that ironically crossed on the roadway Kibbe would be guilty of murder.
Speaker: Alright, and would you say that would be unconstitutional?
Sheila Ginsberg: On the charge that was given in this case I would say yes.
Speaker: For what reason?
Sheila Ginsberg: Because on this charge the jurors could not have found causation as that…
Speaker: As the Constitution requires causation to be defined.
Sheila Ginsberg: As the Constitution requires that each element of the crime be presented to the jury so that they may make that determination.
John Paul Stevens: Ms. Ginsberg let me just follow up with one question.
Sheila Ginsberg: Yes.
John Paul Stevens: That is (Inaudible), and you do not think it is conceivable that that instruction would have been harmful to your client’s presentation of the case, because is not that rather clear that it was foreseeable that a truck would have been driving down this highway at this hour of the night?
Sheila Ginsberg: The simple answer to your question is no.
John Paul Stevens: Well, I put it somewhat differently.
Sheila Ginsberg: No, Your Honor, because if the defense' contentions are accepted, all that Stafford had to do when he was let out of the car was to quickly cross the road where the gas station was there to offer him shelter.
John Paul Stevens: Well, but doesn't that same point go to whether it was reckless in high degree of death?
Sheila Ginsberg: Well, Your Honor as I said earlier recklessness in a much lesser standard.
John Paul Stevens: Unless you are assuming that there had to be a truck coming on at the very moment while he was trying to run across the road, which I do not think that is the...
Sheila Ginsberg: Recklessness is a much lesser standard because it requires only...
John Paul Stevens: But would you not agree that if it was foreseeable, the thing they reasonably expected was that he would get up where they left him off, and walk across the road to the gas station.
Sheila Ginsberg: Well, Your Honor, I would say recklessness goes to several of the fact situations or fact hypothesis in this case, and I would submit that the jury might well have found recklessness with regard to the weather conditions that even...
John Paul Stevens: But what if it is cold, if he just has to walk across the street and get in the warm gas station?
Sheila Ginsberg: Well, that may well be Your Honor, but that was a question of fact which the jury…
John Paul Stevens: As you are saying that it is conceivable they could have resolved the factual issue of recklessness one way and the factual issue of foreseeability another way.
Sheila Ginsberg: Exactly.
Thurgood Marshall: Even though he was drunk?
Sheila Ginsberg: Yes, Your Honor.
Thurgood Marshall: Because the record shows that despite what you said the expert testified that is that to indicate a high degree of intoxication 25%.
Sheila Ginsberg: Exactly, and it was a question of fact for the jury to determine.
Warren E. Burger: Thank you Ms. Ginsberg.


Earl Warren: Number 488, United States versus Raymond J. Wise. Mr. Wright.
Robert L. Wright: Mr. Chief Justice, members of the Court. This appeal is from the dismissal of a corporate officer from the Sherman Act indictment. The dismissed defendant Wise is Vice President and Director of the defendant, National Dairy's Corporation. He and his corporation were charged with conspiring with other persons to fix prices in violation of Section 1 of the Sherman Act. Wise was the only individual defendant and was alleged to be actively engaged to manage with direction and control of national business. He was charged with having to authorize order conduct that implicated his employer. The Justice Department has been prosecuting corporate officers, who are responsible for corporate Sherman Act violations under the Sherman Act for 70 years. But the District Court held in this case, this practice was stopped. From now on, the court below says, "Such officers can only be prosecuted under the Clayton Act." This holding rest primarily on a misconception as to what the Clayton Act was supposed to do, although that Act is described in its title as the supplement to the Sherman Act, the court held that Congress met instead to amend the Sherman Act. In other words, what the Congress itself described, as an addition to existing to antitrust law liability was wrongly construed as replacing the existing liability. The history of the relevant legislation in a detailed analysis of the applicable case law is fully set out in our briefs. All that I'm going to try to show here is that the practical effect of the decision is exactly contrary to what Congress intended when it passed the Clayton Act in 1914 and amended the Sherman Act in 1955. I propose to do this by first describing the pre-1914 practice in prosecuting corporate officers for Sherman Act violations. I shall then discuss the continuance of the same practice for the next 40 years with the implied approval of Congress and finally show an explicit approval of those practice in 1955 when Congress increased the maximum Sherman Act fine from $5000 to $50,000. Before 1914, 40 Sherman Act indictments have been returned against corporate officers or agents, 10 are which named only the individuals without making their corporations defendants. The illegal conduct charge against these individuals have undertaken on behalf of their corporations but in no case was it essential to establish a violation by the corporation that already convicted the individual. Although both were charged with the same Sherman Act offense, the liability of each was subsequently determined at trial. Diverse in such indictments have been overruled on the ground to the corporate officer, who aids or abets this corporation in the commission of a misdemeanor, is just as guilty as this corporation. That's a common law rule. It was expressly applied to all federal crimes by the Aiders and Abettors Statute in 1909. Violations of the Sherman Act are almost had been misdemeanors. These 40 indictments are identified in appendix A of our main brief and I'll only describe one here to illustrate the three Clayton Act practice. This was the 1912 indictment of 30 officers and agents of the National Cash Register Company for conspiring to monopolize the cash register business for that corporation. In addition to its president, Patterson, and the principle sales officials, the indictment included 12 branch managers. All were charged to interrupt the valid capacity and were convicted, 44 were sentenced to a year in jail of 1913. These convictions were on appeal during the entire debate on the bill that became the Clayton Act. And the Clayton Act debate leaves no doubt that the Congress unanimously favored continuance of Sherman Act prosecutions of that kind. These debates showed --
Potter Stewart: Was the corporation indicted in the National Cash Register case?
Robert L. Wright: The Corporation was not indicted, it's not a defendant.
Potter Stewart: It's not --
Robert L. Wright: These debates show that both sides agreed that it was desirable to extend the criminal liability of corporate officers. No one wanted to contract it. No one advocated any repeal or restriction of their existing Sherman Act liability. Section 14 was inserted in Clayton's Bill when that Bill's prohibitions against price discrimination, time clauses, stock acquisitions, and interlocking directorates for penal offenses. That's the way it passed the House. But the Senate made substantial changes at Section 14 lawsuits' original significance when the conference made the substantive provisions non-penal. The final result was that Section 14 added nothing to the Clayton Act liability of the corporate officers. It did add, however, to their Sherman Act liability. But this add at Section 14 liability in contrast to the existing Sherman Act liability, was condition to file an antitrust law violation by the official's corporation. It was, therefore, less effective remedy than the Sherman Act. No officer could be convicted under Section 14 without a prior finding of a violation of Wise Corporation, no matter how flagrant the individual officers' old conduct might be. This was understood by the Congress, and Judge Floyd charged the bill in the House and had to assure the House that Section 14 would not disturb the existing Sherman Act liability in order to get the conference bill passed. If Section 14 had actually superseded the existing Sherman Act remedy, it would have repudiated instead of responded to President Wilson's request for greater antitrust penalties against the individuals responsible for corporate violations. Wilson had told the Congress that the officers and directors of great business bodies, who were responsible for antitrust law violations, should themselves bear the stigma of these violations instead of their corporations. This could only be done by preserving the existing Sherman Act liability of those officers. A Sherman Act indictment would permit conviction of the officials without a finding of violation by their corporation, a Section 14 indictment would not. The Department of Justice, therefore, continued to prosecute corporate officers acting in the representative capacity under the Sherman Act, frequently, without naming their corporation as the defendant as in the Cash Register case. There were no prosecutions under Section 14, and the Congress was kept fully advised as this is nonuse of Section 14 and the continued exclusive use of the Sherman Act in prosecuting corporate officers. An indictment --
John M. Harlan II: (Inaudible) Mr. Wright under Section 14 (Inaudible)?
Robert L. Wright: Very little, it was obvious that you -- that you cannot determine what can be reached until and unless you prosecute under Section 14. There has been no prosecution --
John M. Harlan II: (Inaudible)
Robert L. Wright: I can conceive of instances that might be reached under 14 where the officers' connection with the offense was rather remote, but it's --
John M. Harlan II: (Inaudible)
Robert L. Wright: It's a matter of -- of question of fact how -- how close he is to the illegal conduct. I don't think, however, that it's -- it's necessary to determine that here. This is after all the Sherman Act indictment, and if I'm right in my contentions, 14 was supplementary legislation as the Clayton Act does. It doesn't make any difference for the purpose of this indictment, what additional offense of 14 might cover.
John M. Harlan II: (Inaudible)
Robert L. Wright: Well, there's no --
John M. Harlan II: (Inaudible)
Robert L. Wright: There's no dispute here about the fact that 14 overlaps. We don't say we couldn't have prosecuted Wise under 14. We simply say that we didn't' have to be the -- the view of the court below. The argument is here that 14, instead of providing a supplemental additional remedy, actually was a substitute remedy for the existing Sherman Act liability.
John M. Harlan II: (Inaudible) initially the question what Congress could have in particular.
Robert L. Wright: Precisely.
John M. Harlan II: (Inaudible)
Robert L. Wright: Well, this is what they said they did.
John M. Harlan II: The purpose of putting in Section 14 --
Robert L. Wright: Well, Section --
John M. Harlan II: (Inaudible)
Robert L. Wright: Section 14 initially as I just pointed out was in the bill as a supplement to the Clayton Act liability that was being established for the first time by this -- the time clause and the similar price discrimination provisions. Then, as -- when the Senate changed the bill and it went to conference, these provisions -- Clayton Act provisions to which it have the initial application, were made non-penal. The result was, that when it -- the bill came out of conference, Section 14 had only a -- a Sherman Act liability and that is why it was important. In the final debates for representative Floyd to give the assurances that are quoted in appendix B of our main brief there that the existing Sherman Act liability was not being disturbed. Now, that -- the legislation itself was identified by Congress as supplementary. And what I show it here is that's the way it has to be construed to make sense out of it. An indictment somewhere to the Cash Register indictment was the turn in 1960, against 16 officers of nine companies who had been engaged in fixing the price support and submit. None of those companies was a defendant. The more of that indictment was overruled and the majority of the defendants pleaded guilty. Two defendants who elected to stay in trial were convicted and their conviction was affirmed by the Ninth Circuit Court of Appeals. There was no determination of the antitrust liability to their companies. If their Sherman Act liability had in fact been superseded by Section 14, these officials were improperly convicted. And if Congress had contended Section 14 to be the only statute under which officers acting for their corporations could be prosecuted, it seems likely that Congress would have hold of the Justice Department's continued use of the Sherman Act for this purpose, just as so the Congress found out about. But Congress has never objected to that practice, although it's been repeatedly brought to Congress's attention --
Potter Stewart: The Ninth Circuit case was another case in which the corporation was not indicted, is that correct?
Robert L. Wright: Right sir.
Potter Stewart: And of course 14 is applicable, I should assume only if our way on the corporation is indicted and found guilty, is that correct?
Robert L. Wright: No, I don't think that there has to be criminal of -- the -- the corporation doesn't have to be indicted and found guilty but there must --
Potter Stewart: (Voice Overlap)
Robert L. Wright: -- be at least an allegation. Yes, there must be a fine --
Potter Stewart: By the corporation.
Robert L. Wright: -- in corporate violations.
Potter Stewart: By the corporations.
Robert L. Wright: Yes. Yes, by the corporations.
Potter Stewart: As I remember the theory of the National Cash Register case which as you remember was a very famous case out -- in part of the country and state.
Robert L. Wright: Yes.
Potter Stewart: The theory was there that these individuals were guilty of using the corporation to further their own personal conspiracy, wasn't that -- wasn't that the theory of forfeiting that case?
Robert L. Wright: Now that's what the defendant said. I think it's rather difficult for me to visualize these 12 branch managers as people who were manipulating the -- the corporation for their own benefit. I think quite clearly that at least as far as they were concerned, whatever they did was being done, they will represent capacity for the Cash Register Company and not to further any purpose of their own, except this -- I suppose any corporate officer who is doing something that he thinks is going to be profitable for the company or help the company is at the same furthering result personal interest in that respect that --
Potter Stewart: Didn't the United States Government in that case, in the indictment, -- in -- in the prosecution of those people take that position contrary in (Voice Overlap) --
Robert L. Wright: It certainly did, the indictment -- the indictment charges them specifically in representative capacity and that's what the eviden -- the evidence was. No question at all about the Cash Register defendants, having been indicted and convicted on the basis of what they were doing for the National -- National Cash Register Corporation.
Earl Warren: Is there any indication why the corporation was not charged?
Robert L. Wright: Well, I should suppose that that may have been feeling somewhere to that -- that President Wilson expressed. They felt that to these violations are -- were of such flagrant character that it would -- perhaps be unjust to the stockholders to visit the penalty on the corporation, it would be preferable to visit it on the individuals. By the -- by the time Congress increased the maximum --
Earl Warren: You mean by that the more flagrant the violation, the less responsible the corporation should be --
Robert L. Wright: Well --
Earl Warren: -- even though they're acting in a representative capacity?
Robert L. Wright: Well, I suppose we have to take some account of the -- the feelings of jurors. If you -- if you prosecute under Section 14, you go to the jury under periphery instruction that says, "Unless you find that the corporation is guilty of a violation, you don't even reach the liability of corporate officers." Now, it might be that in certain circumstances, the judge or jury would feel that the corporate officer had -- while everything he had done had been for the benefit of the corporation, had engaged in conduct of such a nature on the corporation's behalf that he should be penalized for it and the corporation should not. This is the kind of -- of fair apply judgment that juries are making everyday. They don't necessarily convict everyone that might properly be convicted. And this is really what wanted to state here on this appeal is the question of whether you're going to make it harder or easier to convict to corporate official -- officials. There isn't any question at all to what drive us from it -- passed the Clayton Act they thought it was making it easier.
John M. Harlan II: (Inaudible)
Potter Stewart: No prosecutions under the -- under Section 14?
Robert L. Wright: There was one indictment which was dismissed, that was subsequent to 1955, that was in 1956. No one has actually got a trial under 14.
Potter Stewart: So Congress' intent was certainly not realized, was it in fact?
Robert L. Wright: Oh I --
Potter Stewart: But you said -- you just told us it was the intent of Congress in an act in Section 14 to make easy -- easier.
Robert L. Wright: To supply an additional alternative remedy.
Potter Stewart: And one never utilized by the Government except in that one, I submit a case.
Robert L. Wright: Not utilized. No. By the time Congress, they got around with increasing the maximum Sherman Act fine from $5000 to $50,000 in 1955, more than a hundred corporate officers acting in the representative capacity had been indicted under the Sherman Act of a large number that's been convicted. None had been charged under Section 14. No court suggested that Section 14, it superseded the Sherman Act and the statutes --
William J. Brennan, Jr.: Excuse me Mr. Wright, is what you just said to Mr. Justice Stewart, affect this that Congress wanted to make it easier to prosecute corporate officers in adopting Section 14, but in fact that made the Government's job more difficult?
Robert L. Wright: Well, perhaps it's easier as the (Inaudible). They didn't make the -- the Government's job wasn't made anymore difficult but -- because the existing Sherman Act probably that was -- was preserved.
William J. Brennan, Jr.: I know -- I know but the point --
Robert L. Wright: They didn't touch the Sherman Act, only they did is --
William J. Brennan, Jr.: But the point, as I understand it, is your position that Section 14 requires at least an allegation in the finding of those corporate violations before there can be a conviction of the corporate officers.
Robert L. Wright: That's what it says on its phase.
William J. Brennan, Jr.: And that that's not true under the Sherman Act.
Robert L. Wright: That's correct.
William J. Brennan, Jr.: Therefore, in that sense, the prosecution of the 14 isn't more difficult for the Government, isn't it?
Robert L. Wright: Yes, and that's what it is. What it does is hold out the premise of a lesser standard of proof being required to connect the corporate officer. But in exchange, you must -- the liability's condition and the corporation's guilt. But viewed as -- viewed as a supplemental additional remedy, this represented no -- no interference, no lessening of existing liability. It did -- it did represent a broad mean in the sense that you had this new additional remedy of proceeding against the corporate officer.
William J. Brennan, Jr.: And yet the Government -- and yet the Government had no occasion as I understand it, to resort to it.
Robert L. Wright: That is correct.
William J. Brennan, Jr.: Why is that?
Robert L. Wright: Well, I think if you -- if you look at the factual considerations involved, you can see why. There isn't anybody that you can really reach under the standards of 14 who is tremendously important, 14 what's -- what 14 would do, would be to sweep in perhaps minor officials or officials with a remote connection with the Act. The problem in convicting the corporate officers is always to persuade the court of jury to convict any. In practice, we do of course always try to limit the individuals. We select those or the grand jury selects those who it regards as having primary responsibility for the offense as a practical manner. I think convictions under Section 14 trying to -- trying to get at somebody under 14 really wasn't -- didn't have any primary responsibility, just wouldn't be a very useful thing to do in terms of Sherman Act enforcement, we've never done it.
Hugo L. Black: I presume you would still have to prove they were guilty beyond a reasonable doubt.
Robert L. Wright: Yes indeed.
Hugo L. Black: The question raised is to how far Congress could create any rebuttal of presumption.
Robert L. Wright: That's quite correct Your Honor. As I said, those things could only relegate determine in a Section 14 prosecution. Clearly, I think that they aren't presented here, where the indictment is of the Sherman Act. As I pointed out, in '55, when the penalty was -- was raised, there could no use at all of 14, Congress knew this, and it knew that the only -- only prosecutions of officers had been under the Sherman Act. Now, when Congress first considered raising the antitrust law maximum fines in 1950, it was told by the Justice Department that no increase in -- no increase in the Section 14 fine was needed because this Section was unused. Congress accordingly limited the increase to the Sherman Act and all of the bills subsequently introduced for this purpose including the one that became law on the spring of 1955.
Earl Warren: Is that part of your -- of the legislative history in your brief?
Robert L. Wright: Yes.
Earl Warren: That the Department of Justice told them, it was not necessary because it was not used?
Robert L. Wright: Yes. That's explicitly pointed out both for me in the original brief and the reply brief. It was also told -- Congress has also told 1950 by the Justice Department that the proposed increase from $5000 to $50,000 was especially needed to deter corporate officers. No one suggested that corporate officers ought to be exempted from it. Now, the entire House debate on the 1955 Amendment took place on March 29th and takes up less than seven pages of the congressional record. The debate opened with the statement by representative Rogers at Colorado that the purpose of the increase was to give the court's discretion to make the punishment fit the crime for which the individual and I emphasize individual or the corporation, may have been convicted. Congress went so and then inserted in the debate a tabulation of all convictions of imprisonment under the antitrust laws, down to February 15, 1955. And that tabulation makes clear that the individuals under discussion included corporate officers acting in the representative capacity. Among the convicted individuals are listed to seven corporate officers in the Trenton Potteries case, all convicted for directing the price fixing activities of their corporation, who received jail sentences of from six to 10 months in 1923. And again, as in the 1914 Clayton Act debate, the only opposition to this Amendment was based on applying that the little legislations didn't make it fairly severe enough. Now, when Congress, in 1955, deliberately declined to amend the unused Clayton Act provision and shows instead to amend the Sherman Act, that Amendment ought to be construed in accordance with that statute, the Sherman Act's prior actual used. So construed, the Sherman Act covered Wise's allege defense beyond any doubt and the dismissal of his indictment was plain error. I would like if I might to reserve the rest of my time for rebuttal.
Earl Warren: You may -- you may, certainly. Mr. Chadwell.
John T. Chadwell: Mr. Chief Justice, may it please the Court. The indictment in this case against Mr. Wise, the Government does not deny and admits, is precisely in the language of Section 14 of the Clayton Act, reads right on it word per word. Now that Act, Section 14, imposes criminal liability upon corporate officers, directors, or agents. In other words, it includes everyone who could possibly act for a corporation. And it says, whenever, is the word whenever, anyone of these corporate officers, directors or agents shall have authorized order or done, authorized order or done any act constituting in whole or in part, in whole or in part, a corporate violation, the officer shall be punished by a fine not exceeding $5000. Now, Congress in that Act in 1914 encompassed every possible act by every possible corporate agent that could be done to effectuate a corporate violation in a whole or in part. It would have been impossible for Congress to have passed the law which more completely encompassed the field of representative action on the part of a corporate employee or officer than they did when they adopted Section 14. Now, in spite of the fact that this statute clearly covers what Mr. Wise is alleged to have done, in spite of the fact that it comes precisely within Section 14, in spite of the fact that that statute provides for the maximum fine of $5000. The bold proposition of the Government in this case is that the Department of Justices has the complete unreviewable discretion to decide and choose to prosecute this man under another statute, the Sherman Act, which makes no reference in terms whatsoever to any representative act by anybody which in nowhere and no place refers to any corporate officer, director or employee, and in spite of the fact that that statute contains a maximum fine of $50,000. It is the position of the Government as annunciated by Mr. Wright today and over and over again in their brief, that they have this choice, it's not a judicial choice, it's up to them to decided whether they're going to prosecute in spite of the circumstances I have outlined under a statute that could cause a maximum of $5000 in fines or a maximum of $50,000 in fines. Now, the -- the question in this case is whether or not under those circumstances, the Government is required to prosecute under Section 14. Now, the lower court held that the Government is so required to prosecute and four District Courts in different districts have sense agreed with the lower court in that respect. Now, the Government's argument, if Your Honors please, the Government's argument comes down to this, "We have been using Section 1 to prosecute corporate officers and directors for 70 years. No court ever held that we couldn't do it. It's now pretty late for a defendant to come into court when he's prosecuted under Section 1 and say, we -- I should have been prosecuted under Section 14 which carries a lesser fine. And I say to this Court that the reason obviously, that this question was never raised before, is because until the difference in fines appeared at 1955, it was a completely academic question. What difference did it make to when a defendant indicted under Section 1 whether in a corporate -- whether in a representative capacity or not, whether he should have been indicted under Section 14? The clients are very practical when they're in litigation, they're considering expense and time and everything else, why should they spend time and money litigating over whether Section 1 or Section 14 applied when there's no question that one did and when the fine was precisely the same in either event? Now, that's why it wasn't raised before. We have in this case, if Your Honors please, we have the situation that confronted this Court exactly in the Nashville Milk case. In that case, it had been assumed for a number of years since Section of 3 of the Robinson-Patman Act was adopted, it had been assumed that treble damage suits could be filed on the basis of Section 3. It had been assumed indeed by this Court in the Bruce's Juices case and Moore against Mead that a treble damage suits would lie under Section 3. The question as to whether or not Section 3 came within the antitrust laws so as to make it possible to sue -- to sue for treble damages was not raised directly on those cases. It was raised for the first time in the Nashville case and in the Nashville case, this Court held that you couldn't prosecute a treble damage suit under Section 3 because Section 3 wasn't a part of the antitrust laws. And I say that the argument which the Government makes, trying to lift themselves by their own bootstraps in this thing saying, "That because we've made this mistake for 70 years, you can't challenge us now," makes no sense when the fines were different all this time. Now, if the Court please --
Earl Warren: I understood and to say also that Congress took this view of it and that Congress --
John T. Chadwell: Yes, Your Honor. That contention is raised and I say to the -- to the Court and I -- and we've argued this and briefed it thoroughly, that Congress said, "No such thing," that Congress did not have the view that at anytime, that it was proper to prosecute corporate officers acting in a representative capacity under Section 1. As a matter of fact, the -- the legislative history shows that from 1890, when the Sherman Act was passed, until 1914 when the Clayton Act was passed, there were 51, 51 different bills introduced in the Congress for the purpose of supplementing or amending the Sherman Act to cover corporate -- or representative liability by corporate officers. One of them passed the House in 1900 and in the report of the judiciary committee to the House in support of that bill, the statement was made that the reason it was passed was because corporate officers or representatives, acting in a representative capacity, were not covered by the Sherman Act as it was -- as it then existed. There was no question about it, if Your Honors please, on the basis of the corporate history here. I -- I strongly assert to the Court, there was no question that Congress never did a thing by virtue of these bills, these steady stream of bills over a period of 24 years. They never did think that individual liability of persons acting in a corporate capacity was subject to the Sherman Act. As -- as a -- I'm sorry.
Earl Warren: We'll recess now Mr. --
John T. Chadwell: Yes, sir.