Warren E. Burger: We'll hear arguments next in 72-1570, Donnelly against Dechristoforo. Mr. Mills?
David A. Mills: Thank you, Your Honor. Mr. Chief Justice and may it please the Court. These case in on certiorari to the First Circuit Court of Appeals to review a judgment of that court vacating an order of the District Court for the District of Massachusetts which had denied without prejudice a petition for habeas corpus presented by the respondent pursuant to Title 28 Section 2254. The basis of the state custody of the petitioner in that proceeding had been affected by conviction in the state trial court of murder in the first degree and possession of firearms violation. The Respondent was indited in May of 1967 for murder in the first-degree and firearms possessions charges. He was apprehended approximately 20 months later and was brought to trial with a co-defendant when Gagliardi in April of 1969. The petitioner wishes to stress the components of that trial. The trial was a seven-day trial. It was preceded with pre trial discovery including a pre trial discovery motions seven of which were allowed. One of the pre trial discovery motions was a motion for Bill of Particulus which according to Massachusetts practice was read to the jury. Additionally, the trial included opening instructions by the judge to the jury opening remarks by council. The testimony of two primary police witnesses, two secondary police witnesses, a chemist, a ballisticians, a pathologist, two FBI agents and several civilian witnesses. Additionally at the cost of the trial, several exhibits were introduced including weapons and documents. Additional components of the trial included closing remarks by the Assistant District Attorney, Defense Council, closing instruction by the jury and an sworn statement by the Respondent as a Defendant, a practice which was in effect in 1969 in Massachusetts. It should also be noted that the trial was preceded by a view. Those are the components of the trial. The Fannies of which is in question before this Court today. The uncontradicted evidence before the court tended to show that the Respondent along with three other persons was seen in a car at approximately 4 o’clock in morning on April 18, 1967. He was seen there by two police officers each of whom testified at the trial. The uncontradicted evidence further tends to show that when Gagliardi, the co-defendant was the driver of the car that the respondent in the case before this Court, then Defendant Dechristoforo was a passenger in the rear seat of the car seated behind Gagliardi that a third alive passenger, Oreto, was also seated in the back seat, and then a fourth person when Lanzi, who appeared to be asleep, was in the front passenger seat of the cab. The evidence further tends to show that Dechristoforo and Gagliardi were questioned by the police at the seen prior to the determination by the police that Lanzi was not in fact asleep but was dead, having been shot once in the head and three times in the side. Apparently and according to the uncontradicted testimony, Dechristoforo and Gagliardi were questioned at the scene. Evidence which is contested in path was introduced at the trial to show that after seen Respondent Dechristoforo when questioned as to his own identity and purpose gave the police a wrong name, a wrong description of the reason why they would there in that place and identify the deceased victim by a name other than his own. In effect, the respondent said did not say that his name was Dechristoforo, said that the disease person had been injured in a fight and revere and was been taken to the hospital and gave a wrong description, a wrong name with respect to the decedent. Gagliardi and the Respondent Dechristoforo then left the scene. It was then determined that Lanzi was dead. The third occupant, the third live occupant of the cab was arrested at that time. During the course of the trial additionally, there was evidence that death had been cost by gunshot wounds that occurred in the cab between 3 and 4 o’clock in the morning. Additionally at the scene, the police found a 38 revolver in the back seat where Oreto had been seated that had been shot once. An additional weapon a derringer fully loaded on the floor in front of the seat were Respondent Dechristoforo had been seated and it was also evidence at the trial that a third revolver was laid to found buried in an area adjacent to the location of the cab and evidence by way of ballistics was introduced to show that the wound in the head in the decedent had been caused by the gun that was found on the back seat and that the three shots in the side of the decedent had been caused by that revolver that was laid to found buried behind the scene. Now, at the close of all of the evidence co-defendant Gagliardi pleaded guilty in the absence of the jury. When the jury was brought into the court room, the trial judge instructed or remark to the juries and I quote in the quote is contain on page 7 of the petitioners brief. "Mr. Foreman and gentlemen of the jury, you have noted that the Defendant Gagliardi is not in the dock, he has pleaded guilty and his case has been disposed off." We will, therefore go forward with the trial of the case of Commonwealth v. Dechristoforo that is detained also in the appendix record of page 99. At that time consistent with what the petitioners suggests with the admirable trial tactics of defense council, no objection was made to that remark, no instruction was ask and no instruction was given. Thereafter, Respondents’ council proceeded with his closing arguments to the jury. The Prosecutors’ argument as is the custom in Massachusetts followed the defense council’s closing argument. And at the beginning, I hesitate to read to the court and yet, I am reluctant to read a single remark to this court without reading some of the context in which that single remark occurred.
Byron R. White: Under what page?
David A. Mills: From petitioner’s brief Your Honor at page 9. The Prosecutor’s closing remarks and its entirety appears in the record appendix. The Prosecutor’s closing argument let me prefess my argument by saying that first of all, I am aware that when I say is really an argument because the word argument pre supposes that I am prejudice to the cause that I represent which of course I am. I Think that the very nature of the system being advisory pitting one side against the other naturally make you point to those things which you think support your particular position and to more or less ignore those things which I supposed detracked from it. I would like to skip down one paragraph and I will seize reading. And I realize that my closing argument should be in no way conceited by you as any evidence in the case and I am sure that you won’t consider it as that and I am sure that my opening statement to you is in no way evidence in the case and it won’t be conceited by you as evidence. The Prosecutor in his argument, the Assistant District Attorney then went on to explain to the jury his version of the case but suffice it to say that he argued to the jury. His argument is included in full in the record appendix. During that argument and the Assistant District Attorney made a statement which is contained in all of the paper in this case and in Petitioners brief at page 11, I do not know what they want you to do by way of a verdict. They said that they hope you find him not guilty. I quite frankly think that they hope that you find him guilty of something a little less than first-degree murder. An objection to this remark was immediately made and although the record is not completely clear on the point and I respectfully direct the Court’s attention to the record appendix at page 129. At that point, Mr. Smith said I object to that. The court said I do not think Mr. Smith that is not fair argument. The court know Mr. Smith that isn’t so. I think to see and he say that the Assistant District Attorney then proceeded with his argument talking about another topic. The record shows that the trial judge indicated that had an objection that the objection had in fact been sustained and that had counsel requested instruction at that time, they would have been given.
Byron R. White: Mr. Mills I am just curious. The Prosecutor here was Mr. Irwin was it?
David A. Mills: Yes, Your Honor.
Byron R. White: Is he the one that’s now the Assistant A.G. at Massachusetts?
David A. Mills: He is an Assistant Attorney General in Massachusetts Your Honor.
Byron R. White: His name is on the briefs here?
David A. Mills: It is, yes Your Honor. Now following -- may I please the court, following that closing argument of the Assistant District Attorney, the defendant, now respondent in this Court, was allowed to make an unsworn statement to the jury. Thereafter follow the instructions of the Court.
William H. Rehnquist: So the unsworn statement by the defendant comes after the closing argument of counsel in Massachusetts?
David A. Mills: Yes, Your Honor it does. Although, there is a question as to whether or not there is any such thing anymore in Massachusetts called an unsworn statement.
William H. Rehnquist: But it did it this time?
David A. Mills: In 1969, yes Your Honor. The judge in his charge First I think it’s only fair to say something about instructions that were requested by the defendants now respondents counsel specific instructions to the jury by way of a writing were made to the Court, they are also contained in the record's appendix. The Court did not give the specific instructions that were requested by Defendant’s counsel. The Court charge the jury and the portion of the charge which we wish this Court to consider is contained on page 142 of the record appendix, given the fact that the defendant’s unsworn statement had been the most immediate proceeding event in the trial following the charge, the trial judge and we suggest properly first commented upon the unsworn statement, basically saying that we suggest that it is not evidence. And at page 143, the judge instructed the jury begging the Court’s indulgence for permission to read his instruction. Let me begin this charge by saying to you that as I have said with regard to unsworn statements not subject to cross-examination of the Defendant, it is not evidence, nor are arguments of counsel nor the opening of counsel whether it be the Assistant District Attorney in this case or whether it be Mr. Smith. It is not evidence for your consideration. Opening of counsel made by either the District Attorney or Mr. Smith on behalf of his client are not evidence, but they are merely for statement by the District Attorney or by Mr. Smith the defense counsel for which they respectively hope to prove. Drop down two lines to the next full paragraph, excuse me Your Honors. The closing arguments tool Madame and Gentleman of the jury, the counsel often becomes over zealous. Closing arguments are not evidence for your consideration. Closing arguments Madame and Gentleman are merely statements by the respective counsel as to how they hope you will view the evidence of which you have heard and now with particular reference to that paragraph of instructions beginning at page at the bottom of page 143 of the record appendix. The judge continued. Now in his closing with District Attorney, I noted made a statement. I don’t know what they want you to do by way of a verdict. They said they’ve hope that you find him not guilty. I quiet frankly think that they hope you find him guilty of something a little less than first-degree murder. There is no evidence of that whatsoever. Of course, you are instructed to disregard that statement made by the District Attorney consider the case as there is no such statement was made. The jury returned a verdict of murder in the first-degree with a recommendation of the death penalty not to be imposed and verdicts of guilty on each of two counts of a firearms charge. The case prior to appeal in the State Courts are the defendant move for a new trial in the State Courts and the case was then appeal to the Supreme Judicial Court of the Commonwealth on several assignments of error including an assignment of the denial of the defendant’s motion for mistrial. In other words, the question of the propriety and the alleged prejudice of the remarks made by Assistant District Attorney in his closing will brought to the full Court in Massachusetts.
Warren E. Burger: Before you leave this factual situation, you’ve already pointed out that the record shows that there where three pistols involved here. Two in the garn, one had been removed from the car and they are three alive passengers in the car. Was there anything in the record? Is there anything in the record that identifies any of those firearms with the specific defendants of these three passengers by way of gun registration or sort of thing?
David A. Mills: Your Honor, interestingly enough, the only identification about weapon as to any particular defendant had to do with the position of the weapon in the car and the fact that one weapon was found in an area with the driver Gagliardi had left for after being questioned by the police and the record explicitly shows that all identification had been previously removed from the firearms. The case was seasonal re-appealed to the Supreme Judicial Court on this question and the Court by a solid majority and over a various strenuous and explicit dissent by our Chief Justice which was concurred by another justice concluded that the. And I should know excuse me Your Honors that our Court, the Supreme Judicial Court, anonymously noted the impropriety of this remarks and soundly condemn them. Finding however that the argument as a whole did not require a mistrial and I would like to suggest the criteria that the Court used in coming to its conclusion and they are of course, contained in the opinion of the Supreme Judicial Court which is reprinted inform the record appendix.
Warren E. Burger: Did the Defense counsel in his opening statement to the jury outline some evidence that he intended to prove which he later did not support with evidence? It is the position of the petitioner Your Honor that several items in the opening and in the closing made by the Defense counsel where never proven at trial.
William H. Rehnquist: This isn’t a unique failing is it?
David A. Mills: Unique in what, excuse me Your Honor?
William H. Rehnquist: Well, it is not unique in the experience of trying a case that something you saying in your opening statement. You turn out that you cannot prove.
David A. Mills: Unique in the sense that if it’s also contained in your closing statement Your Honor, we suggest that it perhaps is unique. The Supreme Judicial Court explicitly examined the whole argument and the whole trial proceeding consistent with an obligation on the Massachusetts Law that in capital cases, the entire trial proceeding be examined. The Supreme Judicial Court examined the judge’s instructions, the lack of an immediate request for instructions after some of the remarks were made.
William H. Rehnquist: Your opponent contends as I understand it that Court adjourned rather suddenly after the argument in the afternoon that he really didn’t have an opportunity to make the request to the trial judge until the next morning.
David A. Mills: I suggest there is nothing in the record to indicate Your Honor that respondent’s count, excuse me, defendants counsel could not have continued his objection in requested a bench conference at that junction in the instruction as he had at various portion in the trial, and it should be noted that as additional components of this trial objection numbering approximately 200 were made and 105 explicit exceptions noted on the record of this trial. So, it was not a trial with inactivity of the fact of defendant’s counsel.
William H. Rehnquist: Is the lobby conference, the Massachusetts equivalent of incumbents and chambers?
David A. Mills: I can only -- there is nothing in the record Your Honor, but I can only suggest that there are lobby conferences and bench conferences. Lobby conferences would be in the judge’s office perhaps for setting ground rules and schedules of trial. A bench conference is during the course of live testimony in the Court room. The Supreme Judicial Court, our Supreme Judicial Court also noted the weight of the evidence that had been introduced against the accused and the improbability that a jury in Massachusetts withdraw the settle inferences that have been suggested by the defendant in the State Court, in the Federal District Court that have been adopted by the Circuit Court and that I suggested before this Court today. I have noted the dissent, I am sure of our Chief Justice to the majority opinion in Massachusetts. A petition to habeas corpus was filed in the District Court for the District of Massachusetts, the petition, the return; the memorandum of United States Magistrate Davis and the transcript of the arguments before the district judge on this petition are contained in whole in the appendix. The petition was denied without prejudice. The District Judge concluding with respect to the claim of prejudice based upon the Assistant District Attorney’s remarks. The Prosecutor’s arguments were not so prejudicial as to deprive the petitioner of his constitutional right to a fair trial. On appeal to the Circuit Court, the Court concerned itself and concerned itself explicitly solely with what the petitioner claim had been improper argument by the prosecuting Attorney. And determine that the particular remark, I do not know what they want you to do by way of a verdict, when read in the light of the proceeding instruction of the jury at the time of the plea of co-defendant Gagliardi in effect amounted to a representation by the Assistant District Attorney to the jury that their defendant Dechristoforo had offered to plead guilty and that his plea had been rejected. The parties stipulated before the Circuit Court after argument in this case that no offered to plea had been solicited. That no offered of plea had been made and that the defendant insisted upon a trial at all times, and this is contained within the text of the Circuit Court’s opinion. The Circuit Court vacated the order often District Court. The primary points that the petitioner suggest to this Court this morning is it the Court of Appeals failed to fairly consider the entire trial of the respondent in concluding that this remark when read in the light of an early instruction deprive to him with a fair trial. In this regard, we refer again to the 105 exceptions, to the 12 or 14 witnesses, to the 7 days of trial, to the view, to the Bill of Particulus, to the pre trial discovery, to all of the items that have been mentioned including the items that had been mentioned in this Court’s December decision of Cupp v. Naughten which is the Court recalls involve the question of a particular instruction by a trial judge and a standard of review. We suggest that the standard of review which has been applicable in lower Federal Courts including our First Circuit in the patriotic case which is cited in the brief makes it incumbent upon the Circuit Court and the District Court. If it is to examine an allegation of impropriety by a state prosecutor to examine all of the trial and not to look at one particular remark in a vacuum. We suggest that it may not have been an absolute vacuum, but when compared to the standard of review employed by our own Supreme Judicial Court when it examine this cas. We suggest that the examination tended by the Circuit Court was a virtual vacuum because although it examined one additional earlier instruction. We do not feel that that Court adequately examined the entire trial and that this is a basis of error. Additionally, --
Thurgood Marshall: Was the full trial record in the Court?
David A. Mills: Excuse me, Your Honor?
Thurgood Marshall: Was the full trial record before the Court of Appeal?
David A. Mills: Yes, Your Honor. The entire --
Thurgood Marshall: How can you assume that they didn’t look at it?
David A. Mills: Well explicitly, the Court did not say that they looked at that Your Honor and stated -- I suppose the petitioner would have felt better if the Court said it had examined all of the trial Your Honor including all of the components of the trial. And the Court did explicitly say at the outset that we are concerned solely with what petitioner contends were improper proposing argument. The Circuit Court, the petitioners suggest was also an error on the basis of certain premises that it used in reaching its conclusion that this remark was effectively a representation by the Assistant District Attorney to the jury that the defendant had offered to plea and his plea had been rejected. First of the Circuit Court without any foundation in the record suggested that the co-defendant’s plea was a plea to second degree murder. The Court further suggested that a jury must always want it to some extent why a defendant has not pleaded. We suggest there is no basis for this in a record and that it isn’t unfair conclusion to draw with respect to a jury that a defendant. Excuse me, that a jury knows that that the defendant who has not sought to plead, even did not wish to plead or he was deterred by the belief that the prosecutor would be unreceptive. A sophistication and attributing to the jury knowledge and belief that we do not feel is supported by the record and it’s not fairly attributed to a Massachusetts jury. The Circuit Court also suggested that the jury doesn’t know whether or not a defendants offer a plea has been made and refuse, but the jury knows that the prosecutor knows and we suggest that this is violative factually of the stipulation that was entered into by the parties before that Court. We suggested that the First Circuit has concluded that jury bargain, excuse me, plea bargaining takes place in all criminal trials in Massachusetts and we suggest there was nothing in the record to support that and nothing in this particular case. Indeed, the parties stipulated that no offer of plea had been accepted and, excuse me, no offer to plead had been made and no offer how they plea had been solicited. And finally with respect to the argument by the respondent that what was substantially done by the Assistant District Attorney was a misrepresentation of fact that as a matter of fact, he did not believe what he said. When he made an improper statement of opinion to the jury that he did not believe what he said. We suggest that if the Circuit Court were to engage in speculation. It would have been more reasonable to speculate that is a matter of Massachusetts Law based upon the elements of manslaughter as contained in Massachusetts cases. The improper suggestion of opinion by the Assistant District Attorney was referring to manslaughter and in fact was an opinion.
Warren E. Burger: Thank you Mr. Mills. Mr. Smith?
Paul T. Smith: Mr. Chief Justice and may it please the Court. This is a case involving an affirmative falsity of a prosecutor statements and not a case of a procedural error arising from a technically improper argument rectified by juror of instructions. As the Court of Appeals said in appendix 241, we have before as a case with a prosecutor despite the fact that was wholly and true, struggling indicated to the jury that the defendant had offer to plea guilty.
William H. Rehnquist: And Mr. Smith, why was the Court of Appeals able to reach that conclusion as empathetically as it did on the basis of a statement, they hope that you find him not guilty. I quite frankly thank that they hope that you find him guilty of something a little less than first-degree murder. There is no reference in the prosecutor’s comment to anything about a plea.
Paul T. Smith: Well I think Mr. Justice, that rational of the Court my argument is that when a prosecutor made that statement. He will knew at that time that the respondent have not sought to plead guilty to any offense. He also well knew that if the respondent was seeking a something a less than first-degree murder. You could have had it for the asking because they have been two other defendants, Oreto and Gagliardi, both of whom have pleaded to second-degree murder on the recommendation of the same prosecutor and had been given life sentences.
William H. Rehnquist: But to the words used weren’t that he sought some, then you find him guilty of something a little less than first-degree murder. Why isn’t that fair inference from that -- what you as his attorney want? You said you want on a verdict that acquittal but really, you’d be damn happy to get a verdict of second-degree murder?
Paul T. Smith: I would not. Oh no, I see. It mean --
William H. Rehnquist: You would have. But, why isn’t that the fair inference from the prosecutor state?
Paul T. Smith: Because he couldn’t have had that opinion Your Honor. Knowing that Oreto and Gagliardi and might -- I am sure Mr. Mills didn’t contempt to mislead the Court. The Commonwealth in its closing argument conceited that Oreto was the one who fired one shot into the head of Lanzi the deceased and that Gagliardi have fired of three shots into his side and consider that Dechristoforo had never fired any shots. So that you have a situation where the two triggerman; Gagliardi and Oreto where allowed to plead guilty to second-degree murder and given life sentences.
William H. Rehnquist: Do I know that from the record that both of them pleaded guilty the second-degree murder.
Paul T. Smith: Yes, Your Honor. And the District Attorney knew that and as they saying a petition for certiorari in their brief and I think the petition for suit at page 25 in their brief at page 24 that it would be silly to argue to say that they wouldn’t have given Dechristoforo a plea to second-degree and he ask for it? So that at the time of the District Attorney made that argument Mr. Justice Rehnquist. He knew that that was a false argument. He knew that we would looking for something a little bit less because we could of got a little bit less just as the other two.
Thurgood Marshall: But to understand the Court of Appeal said that the jury could interpret that they have been plead bargaining?
Paul T. Smith: I didn’t know of read anything only opinion of the Court says anything about plead bargaining.
Thurgood Marshall: Or offered of plead guilty?
Paul T. Smith: Or there was a stipulation.
Thurgood Marshall: No, no. I am talking about in the trial. Did the jury know anything about plead bargaining?
Paul T. Smith: Nothing I know off.
Thurgood Marshall: You didn’t know anything about pleading guilty?
Paul T. Smith: They knew that Gagliardi to plead guilty.
Thurgood Marshall: But you did know what did man or anything?
Paul T. Smith: No.
Thurgood Marshall: No.
Paul T. Smith: No, no.
Thurgood Marshall: So, how can you draw that any conclusion from what the prosecutor said other than that this man expects to get a lesser crime conviction right here on the basis of what he put in?
Paul T. Smith: That he is seeking something less.
Thurgood Marshall: Yes.
Paul T. Smith: Well, I think the conclusion as obvious that he was saying to the jury that I as a prosecutor who went along with a plea of guilty for Gagliardi at the evidence than in before that jury. That Gagliardi had shot the deceased three times on the side. That I as a prosecutor having agreed and recommended to the Court, in effect that the Court accept the plea of guilty to second-degree murder.
Thurgood Marshall: That the jury did not know?
Paul T. Smith: I beg you, pardon?
Thurgood Marshall: The jury didn’t know that the prosecutor recommended it. All they've knew the man had plea the guilty.
Paul T. Smith: That so Your Honor.
Thurgood Marshall: Right?
Paul T. Smith: That so.
Thurgood Marshall: I am just condemned to this to what he said and I could interpret as a juror. I think that this man would like to get a lesser conviction than first-degree murder if he is rather or not get to that penalty.
Paul T. Smith: This maybe so Mr. Justice.
Thurgood Marshall: What else can you get out that language?
Paul T. Smith: I beg you, pardon?
Thurgood Marshall: What else can you get out of the prosecutors language?
Paul T. Smith: Well, I think that what you get out of that language is that the -- that the respondent was admitting his guilt. If he was seeking sampling a little less than first-degree murder, he obviously was admitting that he was just --
Thurgood Marshall: Well, in Massachusetts, is it permissible for Defense counsel to argue that his man is innocent but at the same time if you find him guilty, give him guilty of manslaughter. Is that ever done?
Paul T. Smith: Yes.
Thurgood Marshall: Well, that’s what I am talking about.
Paul T. Smith: But Mr. Justice, that wasn’t the case here by way of the very stipulation. The respondents --
Thurgood Marshall: The stipulation came in after this.
Paul T. Smith: Yes. But stip --
Thurgood Marshall: That the jury hasn’t seen the stipulation until yet, right?
Paul T. Smith: That is correct Mr. Justice.
Thurgood Marshall: And you’re talking about the effect on the jury. So, what would if the stipulation of the jury never so?
Paul T. Smith: Well, I am only saying that the stipulation establishes that Dechristoforo had never sought to plead guilty to any offense and that the statement by the prosecutor knowing that he had never sought to plead guilty to any offense. And knowing also that Dechristoforo had sought to plead guilty, he could of have it for asking the statement by the prosecutor. I quite frankly think that they hope you find him guilty of something a little less than first-degree murder is a false statement.
Warren E. Burger: Now, let me pursue that with you a little. You said that twice now it is a false statement it is express as an opinion of course is it not? You say there is no basis whatever for an opinion playing aside that the Friday if the remark, now I am just going to your claim that the prosecutor knew this was false. You said there is no basis in this record for an opinion that this man might be simply hoping for a lesser include the defense?
Paul T. Smith: That is correct and I would like to explain what --
Warren E. Burger: Let me pursue at the moment, the three pistols in the car and three men and a dead man. Don't you think a jury or juror could reasonably infer from that? That each of these men and had a gun and that each of them was prepared to do whatever that was necessary to disposed of this fellow?
Paul T. Smith: Well, I -- Yes that maybe so Mr. Chief Justice but of course I would like the brief --
Warren E. Burger: Tell us, it would be a reasonable inference, wouldnt it? It would be a reasonable inferencethat a juror could draw from the physical evidence in this case.
Paul T. Smith: I think that Mr. Mills unwittingly mislead Your Honor in answering your question put to you, put to him by you. The Commonwealth conceited that the gun that was found on the seat where Oreto had been seated had been fired by Oreto into the back of the head of the deceased that the gun that was laid to found elsewhere was the gun that had been used by Gagliardi to fire a three shots. The third gun that was found in there was a derringer, fully loaded had not been used. During the course of the trial, there was evidence that Oreto had worn black gloves, black silk gloves kidskin gloves. The evidence appeared to be assuming that there was no evidence on the contrary that Dechristoforo had no gloves. There were no fingerprints on the derringer which was found and which was fully loaded in the back of the car. Now, as to whether or not the prosecutor could have had an honest opinion and saying oh, I do not know what they want. I think that what they want is something a little less than first-degree murder. I’d submit that when a matter is within the personal knowledge of the speaker that qualifying the phrase by the words “I think” doesn’t convert a falsehood into a possible truth or a factual statement into an opinion. Now, he knew the prosecutor was speaking of a factual proposition. He knew that no author, no attempt had been made to plead to anything in the case.
William H. Rehnquist: But what he said was that they hope that you find him guilty of something a little he did not say anything about a plea.
Paul T. Smith: Well, but he is -- Mr. Justice, he is testifying from his knowledge, that jury seating there has a right to believe that when a District Attorney says to them I quite frankly believe something that he has a source of information unknown to them, not in the record, not put on in a trial of the case that as a District Attorney he knows something. And when he says “I quite frankly believe” and knows that he cannot believe that but he says this to a jury, I think that a jury has a right to draw the conclusion that Dechristoforo made some overture to plead guilty to something.
Thurgood Marshall: Mr. Smith what offences would the jury given a choice can be instruction?
Paul T. Smith: Under the Massachusetts Law, the Court is required to instruct on first-degree, second-degree and manslaughter.
Thurgood Marshall: So, what he is saying here is that you, the counsel for the defendant in this case really would like to get manslaughter?
Paul T. Smith: I think you want further than that. He said he quite frankly believed that that’s what Dechristoforo want to.
Thurgood Marshall: Well if not, what’s wrong with her?
Paul T. Smith: Well, because it isn’t the fact and he knew it wasn’t the fact and stating that to the jury obviously is a statement that Dechristoforo has indicated that he is guilty of something.
Thurgood Marshall: So?
Paul T. Smith: Well, this was a case of joint venture charge. All during the whole course of the trial. I made every effort to get the Commonwealth to conceive that if that Gagliardi had fired the three shots that Oreto had fired the one shot and that Dechristoforo had never fired any shots. They --
Thurgood Marshall: His still could have been guilty of first-degree murder all in Massachusetts.
Paul T. Smith: Yes, surely, if he had been engaged in a joint venture here and I argue that to the Court in the lobby or in chambers and the District Attorneys said that he would not agree to any such -- he would not agree to that. As a concuss, we had to try this case on the theory that the Commonwealth was going to try to show that Dechristoforo had fired some shots here and it wasn’t until after my closing argument when the prosecutor made his closing argument. But for the first time, he conceited and he said to the jury that theory of Commonwealth cases that Gagliardi shot three times in the side and that Oreto shot him once through the head.
William H. Rehnquist: The Defense Attorney opens the closing arguments?
Paul T. Smith: Yes, Your Honor.
William H. Rehnquist: And then the prosecutor responds then do you have a right to rebut?
Paul T. Smith: No, Your Honor. We have no right to rebut and that position is that when the prosecutor made this statement, he was on affect testifying. We had no right to cross examine him. We have no right to rebut us and that was left with the jury. The impression was clearly left that Dechristoforo was seeking something less than first-degree murder and on affect. A representation that jury, that he the prosecutor had reason to believe that because he quite frankly thought that pretty so and as a consequence that Dechristoforo was in a fact confessing to the crime but was seeking to get maybe a better deal. Now, I submit that this false statement and it is false and it wasn’t simply an opinion, it was on an unequivocal statement that he frankly believed a better that he couldn’t possibly frankly believe because he knew right along that there was that we will go into trial all the way through on this thing. And when he made that argument which the petitioner conceives as an improper argument, I say it reaches the constitutional dimensions and that we would deprive to do processes result.
Warren E. Burger: Mr. Smith, let me ask you what is obviously hypothetical question to prove that the impact to this kind of statement on the jury. Suppose and instead of putting it the way he did he had said after his first sentence. I do not what they want you to do by way of a verdict, but then went on, but I suggest to you when you get in the jury room, you ask yourselves whether what they really want is that you find him guilty of something a little less than first-degree murder. Would you thought that was all right?
Paul T. Smith: I don’t think it would have reached the dimensions that his argument made into that. I would not -- I don’t approve of that type of an argument but I don’t think I could quarrel with that to the extent that I am quarreling of this argument.
Warren E. Burger: Your suggesting that it would be an impropriety to pose the kind of questions the jurors should consider?
Paul T. Smith: Oh, no. No, I think that’s perfectly proper Mr. Chief Justice. I do think that had he said that the evidence or the argument by the defense counsel is such as to lead you to believe that this is all your case of manslaughter which of course it couldn’t be in assistance because it was a joint venture and this was a first-degree murder case, there wasn’t any question about it. It was a joint venture and if he was guilty, he was guilty at least to the same degree as the others who actually plead to guilty to the second-degree murder and I do not see how they could have been on manslaughter unless the jury get where he --
Warren E. Burger: Well, isn’t it quite common for the jury to find the triggerman as he would be called guilty of a higher degree of homicide than the driver of the car for example? Not --
Paul T. Smith: Well, it is --
Warren E. Burger: Perfectly a common everyday and every state in the union?
Paul T. Smith: Yes, it does.
Warren E. Burger: Now,so that you have a reasonable case for lesser offense in first-degree murder here?
Paul T. Smith: Well, frankly I wasn’t thinking of those terms of manslaughter or anything else and certainly by the very fact that we didn’t make any attempt to negotiate a plea. Where as a prosecutor points out in his brief, he says it would make not a width of sense to refuse to give Dechristoforo at least the same type of consideration as they gave to the triggerman to Gagliardi and the other fellow. To get back to you, first now that I think more of, but that I think Mr. Chief Justice that is so. I think that perhaps in a trial of the case, an advocate does have in mind the possibility that if the jury is going to come in with the guilty, that of be the least possible degree and I think that the statement as you put. If you have made that statement of the jury, I don’t think that be any quarrel.
Warren E. Burger: You mean as to the question they should ask themselves?
Paul T. Smith: I don’t think that be any quarrel. But I think when he says I quite frankly believe this. I quite frankly think that he seeking something other than first-degree murder. I think that a jury seating there has every reason to believe that he knows of something that they don’t know about and that that is testimony and that we would deprive the cause of the right of confrontation but --
Warren E. Burger: A life or some I presume this case?
William O. Douglas: Yes.
Paul T. Smith: And I might point this at -- although he says in his brief, the petitioners saying in their brief that it doesn’t make or would of sense that they wouldn’t have offered him Dechristoforo something lessen first-degree murder. But at that time of trials, it made a good deal of sense to the prosecutor because he argued to the jury and he pointing to Dechristoforo more than anybody else I think he is more reprehensible than the other two combine because he was the man who supposedly he was the friend of Lanzi, the victim. So during the trial, he had an appeared that Dechristoforo was the real bad man on this situation that the two triggermen went the bad fellows and so that the posture of trial was that he wouldn’t give Dechristoforo a plea of second-degree except a plea of second-degree. In short, he and any compound of it after the objection was made to the argument by saying to the jury I believe that there is no doubt on this case, none whatsoever. Now, all I am arguing to this Court is that the statement made by the prosecutor goes beyond a technical error in arguing. It was a false statement. It is tons amount to the introduction of false evidence and that at this Court should regard it in the same fashion that has regarded of the Alcorda case, Napue, Miller and Pate Giglio. A false statement made by the prosecutor which had at least created an impression in the minds of the jury that the defendant here had offer to plead guilty and of not. I just like that false by saying that it was some reference to provocation. I would submit that that is a suspicious argument. There was no provocation. We have seth forth in our brief the opening and the fact is that in the opening as Mr. Justice Rehnquist pointed out a lot of us make openings which we can’t this is severely establish but virtually every manner stated in the opening was either reproduce an evidence or there was a proper proof. For example, I offer to prove that Dechristoforo when he fled and fled to his grandmother’s house, fled because he was unfear of his life and we made of that put proof on that. The fact that the Court didn’t permit us to introduce that evidence certainly should not be use as an argument for provocation.
Warren E. Burger: How will you going to prove that Mr. Smith? By which kind of evidence?
Paul T. Smith: Well, grandmother was prepare to testify the he came running up to the house and the offer of proof was nana. They have just killed whatever Lanzi’s first name was, they just killed Joey and I am afraid they are going to kill me and I am going to hide.
William O. Douglas: Did he speak to that effect in his unsworn statement?
Paul T. Smith: He did not use that language as I recall it Mr. Justice. He did say --
William O. Douglas: Did he not indicate he was afraid of his life?
Paul T. Smith: That is correct.
William O. Douglas: So it came into the jury in any event to his mom?
Paul T. Smith: That’s right but not as evidence. The restatement by first accuse first-degree murder is an unsworn statement.
William O. Douglas: Yes.
Paul T. Smith: It is not we got this evidence.
Warren E. Burger: If the prosecutor argue that if Dechristoforo really had been innocent. If his claim was bonafide in this respect that he was merely a passenger that he would’ve welcome the presence of the officers and immediately told the officers the whole story of what had happened?
Paul T. Smith: Well, he did argued that and I might point out that the evidence against Dechristoforo was that he was in the automobile at the time they found a man dead. That they made false statements to Officer Car concerning his own identity, concerning the identity of the man in the front seat of the automobile the deceased and that he then fled. The facts were that Officer Car in a prior hearing on a probable cost against Oreto on the roof stated that was Oreto who would given the false name of the man in there. That it was Oreto who had made the false statements which at this trial he was attributing to Dechristoforo. This is not a case where the evidence was overwhelming by any means.
Byron R. White: When the evidence have moved at all?
Paul T. Smith: None at all.
William O. Douglas: That is it what?
Paul T. Smith: Motive. The fact the evidence was that Dechristoforo and Lanzi were closed personal friends and that was brought up by the Commonwealth itself because I say I am sure that Mr. Mills didn’t intent to mislead the Court by with respect to the guns. There was nothing to tied Dechristoforo up to the derringer that was on the back seat. There was no evidence that he had never own the gun in fact there was uncontradicted evidence from a police officer in a district, from friends that this young men had an extra reputation not only for honesty but for non violence in the state house where he’d worked as page for 7 or 8 years just prior to getting this other job and the community where he lived. The only evidence that was involved in a gun was the argument made by the prosecutor. When he said and there was no foundation for this, you know these people. These are the kind of people who carried guns that can never be identified and never be traced. I don’t believe that the argument picking out in argument that was improper and here will many improper arguments in and on themselves would warrant this Court to sustain the Court of Appeals. But I do believe that there was a false argument made here. We knew it was false and it was done for the purpose of misleading that jury and the jury was misled.
Warren E. Burger: Thank you Gentleman. The case is submitted.