Warren E. Burger: Mr. Ennis, you may proceed whenever you're ready.
Speaker: Mr. Chief Justice and may it please the Court, the question is whether the Federal Government's need to obtain information about candidates seeking appointment to federal office, together with the right of a citizen to provide that information in a petition addressed only to appropriate federal officials, requires the same immunity from common law libel actions this Court has already afforded both citizens and governmental officials in a broad range of other circumstances in which providing only qualified immunity would unduly impair the effective functioning of government. In each of those other circumstances, the fact that immunity would protect not only truthful and useful communications, but also, on occasion, knowingly false and defamatory communications, has been considered a necessary cost of government. As Justice Harlan wrote for the Court in Barr v. Matteo, affording executive officials immunity from libel actions alleging knowing falsity, "It has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. "
William H. Rehnquist: Mr. Ennis, do you read any constitutional dimension into Barr v. Matteo?
Speaker: No, Your Honor, I do not. I believe that Barr v. Matteo and other decisions of this Court affording immunity to governmental officials is not based on any specific clause of the Constitution. None was referred to. But I do believe they were constitutional decisions in the sense that the Court felt that the very constitutional structure of our government required such immunity.
William H. Rehnquist: I never read Barr v.... I don't think there's a word about the Constitution in Barr v. Matteo. I've always thought it was a District of Columbia doctrine.
Speaker: Your Honor, there is not a word about the Constitution in Barr v. Matteo, but the Court nevertheless thought, even though there was no constitutional right of a governmental official at issue, that the effective functioning of the government itself was sufficient to require the rule of immunity. In this case, we have not only that same governmental interest, but in addition the interest of the citizen critic expressly grounded in the petition clause of the First Amendment.
William H. Rehnquist: Well, what's the source of the law we're dealing with here? Is it all... is it just constitutional law? The case was tried under North Carolina libel laws, wasn't it?
Speaker: The case has not yet been tried, Your Honor.
William H. Rehnquist: Would it be tried under North Carolina libel law?
Speaker: It would be tried under North Carolina libel law as that law is modified and governed by the federal Constitution and also by the needs of the Federal Government to receive information. For example, the Court has also ruled, not relying on any specific constitutional provision, that citizens have a right to provide information about criminal offenses to government; they have a right to testify before legislative and judicial bodies; and they have a right to provide petitions to the judicial branch of government, and they would be absolutely immune from libel actions in each of those circumstances. We seek no more in this case. In our view, there are two separate but in this case coinciding interests which require immunity. The first is the interest of the Federal Government in effective functioning and the second is the interest of the citizen critic in providing the information the government needs to function effectively. The basic facts--
Byron R. White: Well, you wouldn't say that it's necessary for the essential function of government to operate on false information.
Speaker: --Justice White, I know that you have taken pains to concur in several decisions stressing that the Constitution does not directly protect knowingly false information.
Byron R. White: And the Court has already said that, too.
Speaker: Yes, the Court has agreed with that, Your Honor.
Byron R. White: Yes.
Speaker: We do not contend that it does, and we do not need to contend that it does.
Byron R. White: But you have to make some other kind of an argument. You have to make an argument that you have to lie... you have to accept some lies in order to get enough of the truth.
Speaker: That's exactly the argument that this Court has already accepted.
Byron R. White: But that may be true on one side of your argument, on the government interest, but what about the individual?
Speaker: They are--
Byron R. White: Does he have to be able knowingly to lie in order to give decent information to the government? Knowingly lie.
Speaker: --Your Honor, we are not seeking protection for the right to knowingly lie.
Byron R. White: Well, you are. You say absolutely immunity. It doesn't make any difference, you say, whether he's lying or not.
Speaker: Your Honor, we're seeking protection for the right to petition the government and to provide information to the government.
Byron R. White: And to tell lies in the process.
Speaker: Even if there may occasionally be knowing lies in the process.
Byron R. White: Well, what about on those occasions when he knowingly lies? Now, what possible excuse... what basis has he got to claim absolute immunity?
Speaker: His basis, Your Honor, is the same basis that the United States itself identified in the case of Webb v. Fury. We don't have to speculate about the federal interest. In Webb v. Fury, the United States formally and explicitly took the position that citizens should be absolutely immune from common law libel actions when they provide petitions to federal agencies, even if those petitions are alleged to be knowingly false. The reason, said the government, was--
Byron R. White: Alleged to be.
Speaker: --Pardon me, Your Honor?
Byron R. White: Alleged to be.
Speaker: Alleged to be. That is all that is true in this case as well, Your Honor. The reason for that was that any lesser degree of immunity, said the United States, would deprive the government of the information it needs to govern.
Byron R. White: Because?
Speaker: Because both governmental officials and citizens would be deterred from providing truthful and useful information to the government if they knew that merely upon an allegation that their communications were knowingly false, they would be required to spend literally thousands of dollars in unrecoverable defense costs to defend the truth of their statements. That would silence both governmental officials and citizen critics from providing the information government needs.
William H. Rehnquist: Webb v. Fury, was that a case in the Supreme Court of West Virginia?
Speaker: That's correct, Your Honor.
William H. Rehnquist: And what? The government filed an amicus brief?
Speaker: The United States went to the extraordinary length of filing both an amicus brief and an amicus reply brief.
William H. Rehnquist: Have they filed any brief in this case?
Speaker: No, they have not, Your Honor. I think that the interest of the Federal Government is on its face and, given Webb v. Fury, quite clear. But if there be any doubt about that, the Court could of course invite the Solicitor General to follow through.
William H. Rehnquist: I think the Solicitor General is usually quite aware when he figures the government's interests are involved.
Speaker: That's correct, Your Honor.
Sandra Day O'Connor: Mr. Ennis, if a witness testifies in court, even in a matter of grave concern to the government, if the witness testifies falsely, the witness can be tried for perjury, can he not?
Speaker: That's correct, Your Honor.
Sandra Day O'Connor: And yet there certainly is as great an interest in those circumstances in obtaining truthful information, both for the government and from the witness's standpoint. And I take it in those circumstances, the witness isn't deterred from giving the truth, speaking the truth, because... despite the threat of prosecution for perjury. Isn't that right?
Speaker: That is correct, Your Honor, and it raises a very important distinction. Witnesses who testify in judicial proceedings are not immune from perjury prosecutions, but they are immune from common law libel actions. We are not seeking immunity from every possible sanction. For example, the Federal Government has already made it a crime to provide false information to the government, whether it's defamatory of a third party or not. We are not seeking immunity from that kind of prosecution or from other sanctions. We are only seeking the same immunity from common law libel actions that witnesses in judicial proceedings already have.
Warren E. Burger: But are not witnesses there, other than by their own free will?
Speaker: Some witnesses, Your Honor, are there other than by their free will. Others are there by their own free will. But the doctrine--
Warren E. Burger: Once they are there, they are compelled to answer all relevant questions, are they not?
Speaker: --That's certainly correct, Your Honor, but the rule applies not only to witnesses; even persons who simply file complaints with the judicial branch are absolutely immune from common law libel actions based on the statements contained in their complaints, and no one has compelled them to file such a complaint.
John Paul Stevens: Mr. Ennis... oh, excuse me. Finish your answer.
Speaker: I see no compelling justification for affording petitions to the judicial branch of government immunity from common law libel actions, and not affording the same immunity for petitions to the legislative and executive branches, particularly when the petition is directly relevant to an important decision then under consideration by the executive and legislative branches. There is no presumption, if I may say so, Your Honor, that it is more important to protect petitions to the judicial branch than it is to protect petitions the president and to the legislative branch.
John Paul Stevens: That's good background for the question I was going to ask you about the scope of your position. Supposing you have somebody who's nominated to the cabinet, or district attorney, somebody like this.
Speaker: I'm sorry. I did not hear.
John Paul Stevens: A nominee for some office that requires confirmation of the Senate. And say a large pressure group like one of the big trade associations or the National Rifle Association have decided to oppose him. Could they get together and write literally thousands of false letters accusing him of all sorts of personal wrongdoing and all the rest, and misstating his position and all the rest, get a regular campaign going... would all those letters be immune from any kind of libel action?
Speaker: Your Honor, so long... under our theory of the case, so long as the letters were addressed to appropriate officials of the Federal Government--
John Paul Stevens: To the chairman of the committee.
Speaker: --who were then considering a governmental decision, yes, they would be immune, not from all sanctions, but from common law civil libel actions.
John Paul Stevens: Which is probably the only sanction that's available for deliberate falsehood of that kind.
Speaker: Well, as I've indicated, there are already on the books statutes making it a crime to provide false information to the Federal Government, and he certainly could be prosecuted for that. It is also conceivable, though I do not concede the point, that a state criminal prosecution for criminal libel could be pursued, though I am not willing to concede that such a prosecution would survive constitutional--
John Paul Stevens: What kind of a constitutional immunity is it that just protects you from a civil remedy but not from a criminal remedy?
Speaker: --Well, as I say, the federal criminal remedy would be different. It would not be for the crime of providing defamatory information. It would be for the crime of providing false information to the government, whether it was defamatory or not. It is a crime, for example, to provide false information to the FBI.
John Paul Stevens: But if the... I am still a little puzzled. If the communication is constitutionally privileged, notwithstanding its falsity, how can you be satisfied with a rule that would allow the Federal Government to prosecute the person for sending the same communication?
Speaker: Because, Your Honor, I'm making the same distinction I made in response to the question asked by Justice O'Connor, and that is, we are not seeking immunity from every conceivable sanction. We are only seeking immunity from one particular sanction which is particularly likely to silence critics of--
John Paul Stevens: Where do you find that distinction in the language of the Constitution?
Speaker: --I find that distinction in this Court's decisions. This Court has already ruled that judges, legislators, and executive officials are immune, not from every sanction, but immune from common law libel actions, even if their statements are alleged to be defamatory and knowingly false. The Court--
John Paul Stevens: Those are... as Justice Rehnquist points out, those are not constitutional decisions.
Speaker: --I believe they are constitutional in the sense, Your Honor, that they derive from the very structure of a republican form of government. They are like the slaughterhouse cases, like In Re Quarles, like all of the foundation cases on which our Constitution and jurisprudence is based. The Court in every one of those cases said that that kind of immunity, in the circumstances of that case, was necessary in order to ensure the effective functioning of government. That's the literal language used in those cases. I see no distinction here. The government was actively considering an important governmental decision... whether to appoint Respondent to the office of United States Attorney, the chief law enforcement office in the Middle District of North Carolina. That was obviously an important decision. It required nomination by the President and the advice and consent of the Senate. This was not some low level margin decision. In order to make a responsible and effective decision on that candidacy, the government needed to obtain relevant information. The letters that my client sent to the President are, on their face, highly relevant to the qualifications of Respondent for that office. But if my client knew--
John Paul Stevens: Yes, but don't we have to assume that they are also false, and deliberately so, for purposes of deciding the case?
Speaker: --Your Honor, I have to concede that the rule I am arguing for would protect not only truthful communications--
John Paul Stevens: No, you have to concede that your client sent deliberately false letters, knowingly... I mean false letters that he knew were false. That's the allegation which we must accept as true.
Speaker: --That's the allegation of the complaint. It is specifically denied in the answer. This case does not arise simply on a motion to dismiss.
John Paul Stevens: But for purposes of your appeal, you must assume it's true.
Speaker: I don't want to quibble with you, Your Honor. I do want to make a point, however, that this is not just a motion to dismiss. It's a motion for judgment on the pleadings, which includes the answer as well as the complaint. Nevertheless, I would assume for purposes of this case that even if what my client wrote is knowingly false, it should be absolutely protected because it is the right of the Federal Government to decide for itself how to separate the false from the true. The Federal Government certainly has mechanisms for doing that. This letter was in fact addressed, one copy, to William Webster, the Director of the FBI who has statutory authority to investigate candidates for appointment to this very federal office. And the FBI certainly has enormous resources for ferreting out truth and falsity.
Warren E. Burger: Suppose we have a vacancy here in the staff of our Court, the Clerk of the Court or something, and someone applies. Are you suggesting the same freedom would be accorded if a person wrote to the Court, wrote to me and said this fellow is a scoundrel, he's a Communist, he's a bankrobber, unreliable? Absolutely immune?
Speaker: Yes, Your Honor. If you were making a decision whether to hire a certain person, for example, as your law clerk and if a citizen had information concerning the qualifications of that person, I would take the position that the citizen would have the right to send you a letter expressing his views and that those views would be immune from a civil libel action, though not from other possible sanctions, whether they are true or false.
Thurgood Marshall: So republican form of government.
Speaker: Your Honor, both because--
Thurgood Marshall: That's the nearest... I've been listening. I'm quite interested. That's the nearest you've gotten to point to any provision of the Constitution, and you're miles away from that one.
Speaker: --Your Honor, both because of republican form of government... that's the federal interest... and also because of the petition clause of the First Amendment. The history of the petition clause, I think, is overwhelmingly clear. In fact, the Respondent does not even deny--
Thurgood Marshall: I think it's one of the clearest puddles of mud I've seen in a long time.
Speaker: --Well, Your Honor, I don't wish to seem disrespectful, but in our brief we refer to the fact that in a parliamentary resolution of 1669, in Lake v. King in 1680, in the Seven Bishops case of 1688, in the English Bill of Rights of 1689, in a host of other authorities, English law that was known to the framers provided absolute immunity to British subjects when they petitioned either Parliament or the king. The Respondents do not dispute that history. They also do not dispute that in Harris v. Huntington, the first American case to consider the common law--
Thurgood Marshall: Well, I dispute that as of today, you can write anything you please to any governmental official and have absolute immunity.
Speaker: --Well, Your Honor, if I wrote a letter to the government accusing--
Thurgood Marshall: Is there anything that you could write to the government that you would not be responsible for?
Speaker: --I'm not claiming--
Thurgood Marshall: The point is that you write to a government official, period.
Speaker: --Right.
Thurgood Marshall: That's all you say. If you write to a government official, you have absolute immunity, period. That's the end of your constitutional provision.
Speaker: No. That is a broader rule than we are contending for in this case.
Thurgood Marshall: How much broader is it?
Speaker: Quite a bit broader. We are only asking the Court to rule in the narrow circumstances of this case, and that involves three important qualifications. The first is that the petition is from a citizen addressed to appropriate officials of the Federal Government, not just to anyone. Second--
Thurgood Marshall: I said anyone in government.
Speaker: --Yes, but we're not... if Mr.... if my client--
Thurgood Marshall: I don't think you can be in government unofficially.
Speaker: --No, certainly not, Your Honor. But if my client wrote a letter to some member of the Forestry Department in the State of Wisconsin... who's a government official... which was defamatory--
Thurgood Marshall: Also, I wouldn't assume it would apply to somebody who wrote to the third assistant janitor in the Post Office.
Speaker: --That's correct, Your Honor. That's an important qualification.
Thurgood Marshall: Don't break anything... bring something that's... if you write to any governmental official--
Speaker: Yes.
Thurgood Marshall: --Any officer of the United States, you have absolute immunity. Is that correct?
Speaker: That's not the position for which we are--
Warren E. Burger: Are you limiting your position to decisionmaking officials?
Speaker: --Your Honor, we are limiting the rule we see to appropriate federal officials. That could include certainly those officials who are directly involved in making the decision. For example, as you might be, if you were hiring a law clerk. But it might also include a few more officials who are not directly involved in making the decision, but whom the petitioner could reasonably believe would be influential in that decisionmaking process. The citizen critic should not be forced to guess at his peril, whether the governmental recipients of his petition are the right recipients or not. So long as his decision is not patently unreasonable, as perhaps writing to the third janitor might be, so long as decisions are not patently unreasonable, it should be protected. Let me continue by saying that--
Sandra Day O'Connor: Mr. Ennis, isn't there a basic difference in the justification for immunity and libel or defamation actions for witnesses in judicial proceedings, simply because they're subject to cross-examination to get at the truth? Their statements occur in a framework where it's possible to know whether they're speaking the truth or not, at least by our standards. And you're asking for absolute immunity in a situation where someone just submits a letter and is not open to cross-examination for it. And it seems to me to have some basic differences. And I think if you look closely at the common law immunity, you will find that it extended really only to judicial proceedings and witnesses and not as you have described.
Speaker: --Well, Your Honor, I must respectfully disagree about the common law history. But on the other question you asked, that is obviously an important point; that witnesses in judicial proceedings are subject to cross-examination. The rule, however, of immunity applies not only to witnesses but also to complainants in judicial proceedings. The complaint itself is immune. And there may or may not be occasion for testing the truth of allegations in a complaint. The complaint may never get served, it may not--
Sandra Day O'Connor: Well, they can have the opportunity for a formal response. It's in a setting where it lends itself to a response.
Speaker: --Yes, that's right.
Sandra Day O'Connor: And in the situation you described, the person about whom the letter is written may never know what was written at all.
Speaker: Yes. Let me respond to that, Your Honor.
Sandra Day O'Connor: There's no notice, there's no response.
Speaker: Let me respond to that, Your Honor, because that's very similar to one argument raised by the Respondent that this was a secret petition. In fact, it was not, for four reasons. First, a secret--
Sandra Day O'Connor: But the rule you pose would cover something just submitted that the person about whom it's written would never know.
Speaker: --The rule I propose is no different than the rule this Court has already adopted in both Quarles and Vogel v. Gruz. This Court has already ruled that the subject of a petition to the Federal Government cannot compel the disclosure of that petition to himself or to anyone else without the "permission or assent" of the Federal Government. Because the Court recognized that the government has such an important need in receiving that information, that the Federal Government should be free to decide for itself whether to pass on a communication to the subject of the communication. That's already the rule this Court has adopted. Third--
Sandra Day O'Connor: You mean in criminal cases. Is that what you're talking about?
Speaker: --Well, Vogel applies not just in criminal cases, nor does... but the rule I'm talking about is a petition to Federal Government. The fourth point I'd like to make on that secrecy argument is that the Respondent, I think disingenuously suggests in his answering brief, that he did not have an ample opportunity to respond. In fact, he did. The record in this case is clear, as the deposition of Congressman Johnston makes clear, that the Respondent promptly received copies of both letters from Congressman Johnston, his friend, and Senator Helms, his friend and sponsor, and that on January 19th and February 27th he in fact wrote to Congressman Johnston with enclosures, providing a detailed response to every one of petitioner's allegations. So he did in fact have an ample opportunity to respond, and that's in the record of this case. This was not a secret, however. A secret requires an agreement by both parties to the communications to keep it confidential between themselves. My client did not demand or request that the government keep his petition secret. To the contrary, he offered to testify publicly, where he would have been subject to cross-examination and penalties for perjury; nor did he expect secrecy. He is alleged to have sent copies of his letters to Senator Helms and Congressman Johnston, both of whom were friends and sponsors of the Respondent.
John Paul Stevens: Mr. Ennis, would your rule cover the anonymous correspondent as well as one who signs his name?
Speaker: Your Honor, I think that the Federal Government should be free to decide for itself whether it wants to receive and act upon anonymous petitions as well as--
John Paul Stevens: So your answer is yes, it would.
Speaker: --Yes, it would, but I don't think the Court needs to--
John Paul Stevens: Do you think the rule for which you contend would have any tendency to increase the amount of false communication?
Speaker: --No more, Your Honor, than the rule this Court adopted in Barr v. Matteo for governmental officials.
John Paul Stevens: That's not my question. My question is, do you think the rule for which you contend would have any tendency to increase the amount of false communication?
Speaker: No, I do not think it would, Your Honor, because the petitioner would still be subject to penalties for providing false information to the government. On the contrary, though, I think that a rule granting petitioner's immunity from common law libel actions would tend to encourage citizens to provide truthful and useful information to the government because they would no longer have to fear spending $20, $4O, $60, $80,000 in unrecoverable defense costs if their communication was simply alleged to be knowingly false. Let me respond to one point that has not yet come up, but is... since the Respondent really says virtually nothing at all about our historical argument that was known to the framers and nothing at all about our functional analysis argument, Respondent talks only about the petitions being secret and misdirected. The argument about misdirected is that petitioner's first letter was misdirected because he sent it to Congressman-Elect Johnston and to President-Elect Reagan before they had been sworn in. But as the record makes clear, in November of '80 the Respondent had applied for the position to Congressman-Elect Johnson and to Senator Helms requesting their assistance in obtaining the appointment. If it was appropriate for the Respondent to seek the assistance of Congressman-Elect Johnston in obtaining the appointment, it was no less appropriate for the petitioner to write to the same Congressman-Elect Johnson to oppose the appointment. It was widely reported in the press that there was a transition team in place, chaired by Ed Meese, that was then actively considering nominations. In fact, the Respondent alleges that he was an active candidate, and that the President would be making appointments as soon after he was sworn in as possible. There is no more appropriate occasion for a citizen to communicate with the Federal Government concerning a candidate for Federal office than when the decisionmaking process is actively underway. Let me conclude... and then I'd like to reserve a few minutes for rebuttal... by simply reminding the Court, as I'm sure it's aware, that the deterrent effect we are talking about here is an extraordinarily severe deterrent effect. In fact, the Respondent concedes at page 18 of his brief that the potential cost of defending a libel action is great, to use the Respondent's words. And the relative cost for an ordinary citizen who does not have libel defense insurance is even greater than the cost for a media defendant, such as the New York Times. Let me pose a hypothetical. If North Carolina tomorrow enacted a statute imposing a $20,000 tax on all petitions to the Federal Government, can anyone doubt that that would silence all petitions to the Federal Government by everyone but the most wealthy or foolhardy citizen? But the $20,000 tax, though it's not paid to the State of North Carolina, is the same in this case under the common law rule. The petitioner must pay that $20,000 to his defense lawyers and to court reporters, not to the State of North Carolina directly, but the cost to him is the same and the deterrent effect on him is the same. If this Court does not grant absolute immunity, I think it is clear that the message that will go out to the citizens of this country is that they are no longer free to criticize candidates or to criticize wrongdoing by public officials, and that if they do so, they do so at enormous economic cost to themselves.
Byron R. White: Of course, the message would always say you certainly are protected, even if you give some false information if you didn't know it was false. But the message might say if you deliberately sent in false information, you'd better watch your Ps and Qs. There would always be qualified immunity, wouldn't there?
Speaker: It's going to cost my client the same amount of money to prove that his allegations were true, and it doesn't matter that they're simply alleged to be false; he has to incur the same costs. I believe I have--
Sandra Day O'Connor: Mr. Ennis, what do you think the message was to someone who read White v. Nicholls?
Speaker: --Your Honor, I think that White v. Nicholls was, as this Court recognized in Briscoe v. La Hue, an incorrect summary of the common law. White v. Nicholls totally ignores the pre-revolutionary cases. It ignores Harris v. Huntington which was cited here.
Sandra Day O'Connor: Do you know of another American case before White v. Nicholls that adopted the Harris Huntington approach? Can you cite one?
Speaker: Your Honor, I don't know because we really stopped our research at the time of the framers--
Sandra Day O'Connor: Well, I haven't been able to find one, so I would be interested if you had one. I didn't think there were any.
Speaker: --I don't know, and if there were, I don't think it would be relevant because we're inclined to see the case law that would have been familiar to the framers of the petition clause. And cases decided contemporaneously with White v. Nicholls may have been familiar to this Court from White v. Nicholls, but could not possibly have been within the contemplation of the framers. I meant to reserve a couple of minutes, but I guess my time has expired. Thank you very much.
Warren E. Burger: Mr. Eagles.
William A. Eagles: Mr. Chief Justice and may it please the Court, over 20 years ago this Court decided New York Times v. Sullivan. In that case the Court set out the protection the Constitution makes available to citizens who criticize public officials. The citizens in question in New York Times were not petitioning the government. They were, however, petitioning the holders of the absolute sovereignty in this country; they were petitioning their fellow citizens. New York Times, addressing the free speech and press clauses, recognized that actual malice must be shown to be the basis of any recovery from a libel action for criticizing a federal official or government official. Now Mr. McDonald comes before this Court and seeks absolute immunity for letters alleged to have contained knowing, malicious defamatory falsehoods. New York Times standard would not protect such intentional lies. Yet, Mr. McDonald really offers only arguments that were addressed, weighed, balanced, and decided in New York Times.
Warren E. Burger: Has anyone ever succeeded in getting a recovery from The New York Times since Sullivan that you're aware of? If you don't know, it's--
William A. Eagles: I don't know offhand, Your Honor. We are here denying that malicious lies are afforded a protection under the petition clause; that the same malicious lies would be denied by the free speech and press clauses. Yesterday, this Court affirmed the position that's inescapable under the unified analysis of the speech and petition clauses received by this Court already, stating that while the petition and speech clauses are separate they are related and generally subject to the same analysis. Application of that same analysis is all that we ask, that malicious lies whispered in the ear of a government official receive no greater protection than malicious lies printed in The New York Times. Counsel for the petitioner has indicated that he does not seek protection from every possible sanction that might result from information contained in the petition. They do, however, seek protection, absolute immunity from the only sanction available to Mr. Smith. Mr. Smith is not afforded his day in court that would result from a petition to the judicial branch. The only opportunity that David Smith will ever have to prove the truth or falsity of allegations made against him is in a libel action. He's properly alleged the falsity, he's prepared to proceed under the standard providing, we would say, ample and we believe the Court has already said ample protection of The New York Times standard. The opportunity to respond that counsel for petitioner discussed existed to some extent under the facts of the case before the Court. It did not, however, exist in a forum that resolution of the conflicting positions and facts presented would ever be reached. Presumably, had Mr. Smith in fact been appointed, that resolution would have occurred in the minds of the public. But in the absence of his appointment, for whatever reason, the malicious lies are left and he... and Mr. Smith has no opportunity to address them. The petitioner's argument, it seems to us, asks this Court to address the question of the petition clause as if there had been no development of constitutional libel law since the drafting of the first amendment. He appears to present a blank slate, or a blank slate for the last 200 years, to the Court. But we would submit that this case not only deals with the petition clause, but also the balancing between the effect of immunities granted under the petition clause and the protections granted under the speech clause, because it is as citizens see those protections that they will decide where discussion of matters of public interest will take place. The First Amendment fundamentally supports the proposition of public, vigorous, wide-open debate of issues important to the public. This Court has said that many times, and as recently as Monday of this week. It is our position that providing one who would use malicious lies for political gain with an absolute immunity would not only encourage the false information flowing to the Federal Government, but would encourage the discussion of it to be moved out of any guarantee of rebuttal by those not only who were defamed by it, but by those who disagree with it. The discussion of the matters of public interest would be moved into the secrets of private letters and whispered petitions to government officials, carefully chosen so that they are the person most... best in a position to do the most harm to the man who's being defamed. That approach to the questions presented by the petitioner's argument, we believe necessarily draws one back to the protections provided by New York Times and the fundamental precepts of the Constitution supporting and encouraging open... wide-open, robust debate of public issues. We would submit, further, that while the petitioner discusses in his brief at some length the chilling effect of a potential large libel verdict, that since New York Times there has not been a single libel verdict for more than a half million dollars or as much as a half million dollars affirmed by an appellate court.
William H. Rehnquist: --But don't you think a half million dollars would be quite chilling? [Laughter] In North Carolina?
William A. Eagles: In Alamass County, North Carolina it would indeed, sir. I point that out, Your Honor... he talks about the unreasonable inflation of libel verdicts, and that inflation... before New York Time, John Henry Faulk was awarded over half a million dollars, and there hasn't been an award that large since. So the inflation aspect of it simply doesn't appear from the record of those verdicts which have been affirmed by appellate courts. He discusses the cost of litigation. The cost of litigation is great. And it in fact is something that I guess we all should consider every time we get in an automobile or have an invitee come on our premises. If we live in the world, we risk the cost of litigation. And if we tell malicious lies defaming people, we ought to risk that cost and we ought to risk the threat of large libel verdicts, and we ought to be chilled from malicious lies disrupting the decisionmaking process of the Federal Government. And in New York Times, the chilling prospect was considered, it was weighed, and it was determined that under the speech clause and the press clause, that question was adequately addressed by the malicious falsehood standard: knowingly false, reckless disregard of the truth or falsity thereof. People should be chilled when they're about to tell lies about people that will, on their face, do those people harm and they are intended to do harm by the focus to the recipient that the speaker chooses.
Sandra Day O'Connor: Do you agree that there should be immunity for a good faith statement not made maliciously?
William A. Eagles: That's the common law position in North Carolina. It's the position in Ponder v. Cobb which was cited in New York Times, and which the North Carolina general libel law was one of the places looked to by this Court.
Sandra Day O'Connor: And the standard which this action would go to trial would be the equivalent of the standard required under New York Times v. Sullivan as you understand it?
William A. Eagles: As I understand it, Your Honor, that's correct. The potential for a public figure question rests in the trial court, I suppose, because we have, for the purposes of the motion from which this appeal was taken, that question was yielded. It has not been yielded for the litigation generally, but except for that question that's exactly the standard. It's a standard that would be required under... by New York Times, and it's a standard that existed in North Carolina for just this type of... in Ponder v. Cobb, there was a letter to a state official complaining of local election officials. So it's the same petitioning aspect.
Sandra Day O'Connor: Well, do you tend to agree that anything short of that standard certainly would provide a significant chilling effect on people who otherwise might furnish information to public officials?
William A. Eagles: Well, I believe so, Your Honor. If people who acted in good faith and on reasonable grounds, the older cases discuss bona fide and probable cause, use that kind of language, then a common law privilege did exist and should, and chilling would take place in the absence of it. Another point in terms of the cost of litigation that is made by the petitioner in his brief is the comparison between the availability of counsel and the cost of counsel between libel plaintiffs and defendants, pointing out that a contingent fee arrangement is often available to libel plaintiffs. I would disagree. I would think it is seldom available to libel plaintiffs. I would point out to the Court that the use of contingent fee arrangements is one of the strongest deterrents to litigation with no substantial basis because in that situation, a lawyer who is making a decision on the merits of potential cases as presented to him or to her and deciding... before the case is ever filed, there is a tremendous weeding out process that takes place. And that is a protection against frivolous litigation that is substantial and grows out of the same sorts of concerns about costs of litigation that the counsel for petitioner raises.
Sandra Day O'Connor: Do you think it's desirable that appointed officials for public positions be made aware of even reasonable rumors that are floating around about people that they might be considering for appointment? Is that desirable?
William A. Eagles: I think it's desirable for government officials who are acting on the basis of some information to the benefit or detriment of a particular individual, to make that individual aware of it and have an opportunity to respond to it in other areas.
Sandra Day O'Connor: Well, that's not the question I asked... what do they do with it.
William A. Eagles: I'm sorry.
Sandra Day O'Connor: I'm asking initially if you think that as a matter of public policy, it's desirable that as much information as possible be funneled into appointing authorities, even if it consists only of rumors.
William A. Eagles: Yes, Your Honor, I think it is in fact a valuable... can potentially be a valuable service for someone to make government officials aware of information of which they cannot themselves be certain. Mr. McDonald, however, did not couch his defamation in those sorts of terms. Rather, he presented them as true and he, as the briefs point out and it's clear from the letters, cites page and verse, name, address, telephone numbers of people that the federal official was told could substantiate these things. And those people are the very witnesses that we intend to call at trial, are the people through whom we intend to prove the falsity and the maliciousness. But the fact of presenting those names and addresses wins this air that's repeated by citation to those in petitioner's brief of credibility that is very difficult to overcome in a process like this one, where any number of candidates for an office exist, any number of whom have good appropriate qualifications, and as to one of whom this mess is presented, this series of allegations, this possible problem. And the effect of that is potentially devastating to a candidate who would be considered equally among others, and could do away with any possibility or any perceived need for checking the reliability and the truth or falsity by the federal official who had available to him other qualified reasonable candidates to choose among. The potential of the FBI doing an investigation that counsel for petitioner discussed clearly existed, except that there is no way to know if the FBI chose to or not, and even if it had, the allegations of that process would not necessarily result in Mr. Smith having an opportunity to present his side of the story. In fact, that argument, it seems to me, raises the government's investigatory process to a... it puts it on a higher plane than the truth-seeking processes of the courts in which Mr. Smith seeks to have this question determined, to have the fact of the falsity of the information and the malicious nature of its presentation proven.
Harry A. Blackmun: Mr. Eagles, Mr. Smith was not appointed, was he?
William A. Eagles: That's correct, Your Honor. He was not appointed.
Harry A. Blackmun: What is he doing now?
William A. Eagles: He's in private practice of law in Burlington, North Carolina in the community where some copies of these letters were found among the general population and in the community where word of the existence of them reached him from rumor in the streets before opportunity had been... before he had ever seen a copy of it and the other ways he heard about it.
Harry A. Blackmun: Is that in the record?
William A. Eagles: Well--
Byron R. White: Well, is it? Is it or not?
William A. Eagles: --The only part of that that's in the record, Your Honor, is in depositions that I guess have not yet been filed. The depositions have been taken and--
Byron R. White: What... does the complaint allege any specific damage?
William A. Eagles: --The complaint alleges that he was damaged in his professional reputation in the community, as well as his reputation--
Byron R. White: So that alleges that there has been damage in the community.
William A. Eagles: --That's correct.
Byron R. White: Which I take it alleges that the people in the community know about it.
William A. Eagles: Oh, yes. They knew about it before any action was brought on Mr. Smith's behalf. And that raises another question. And one of the... the Webb case to which counsel for petitioner made some comment... in that case, the court of West Virginia determined that the petition clause provided an absolute immunity and made that available to the defendant, even though he published a newsletter with the same information and spread it generally in the community. And that is... that would enable someone under that decision to avoid any possible defamation action or discussion of public issues and criticism of public figures, public officials, by simply including whatever he put in the paper or to the public generally, including it also in a petition to the government. And that would be, we believe, a remarkable way around the longstanding libel laws of all the states and the decision of New York Times and this Court's view of what New York Times stands for. We believe that an individual's right to protection of his own good name reflects no more than the basic concept of the essential dignity and worth of every human being, and that that concept is at the root of any decent system of ordered liberty. This Court has so said in Gertz, and we believe that if the interest, if that interest is important, it is no less important because it was left to the protection of the state and that it's necessary to make those people who choose to lie maliciously about people and defame them, to be held to answer for their words. And if there are no further questions from the Court, we would urge on that basis for the Court to affirm. Thank you very much.
Warren E. Burger: You have three minutes remaining, Mr. Ennis.
Speaker: Thank you, Mr. Chief Justice. The respondent raised the point about public debate. First, there is no allegation in the complaint that my client, the petitioner, distributed copies of this letter to any member of the public, only to federal officials. There was a very good reason why he did not distribute his letter to the public and give an opportunity for public debate. He was seeking to exercise his right to petition the Federal Government concerning a decision that was about to be made by the Federal Government, and there was no arguable basis to believe that the public would be able to redress that particular grievance. Second, by limiting his petition to officials of the Federal Government, he obviously limited any damage to the reputational interest that the candidate might have in his local home community. And while I'm on that point, let me simply state that this Court's decisions in Gertz and Monitor and Hutchinson make clear that although reputation is an important interest, the reputational interest of a candidate for office is greatly diminished because candidates invite scrutiny of their qualifications and reputation. Second, Justice O'Connor asked whether or not a rule of good faith or qualified immunity would be important and might not be sufficient. Let me simply refer to the position taken by the United States in Webg v. Fury which is quoted at page 40 of our brief, in which the United States said: "To allow a plaintiff to simply plead bad faith would create a chilling effect on the exercise of the right to petition. " The United States continued that the right to petition would "lose any real meaning because private citizens will be deterred by the threat of litigation from exercising that right which would deprive the Federal Government of the information it needs to govern. " Let me conclude by simply stating once again that we are not seeking absolute immunity from every possible sanction for every communication that could conceivably be deemed a petition. We only seek immunity from common law libel actions and only in the three circumstances of this case. First, the petition was from a citizen to appropriate officials of the Federal Government; second, the petition was relevant to the qualifications of a candidate actively seeking appointment to federal office; and third, the petition was made on an appropriate occasion while the federal decision concerning appointment was still pending. Thank you very much.
Warren E. Burger: Thank you, gentlemen. The case is submitted.


Warren E. Burger: We will resume our arguments in Maness against Wainwright. Mr. Brummer, I think you have 17 minutes remaining of your time. Mr. Brummer.
Bennett H. Brummer: The petitioner has based his constitutional claim on Sixth Amendment grounds as well as fundamental fairness. On the basis that the Voucher Rule had been applied to sanctify the testimony of Linda Maness, although Linda was clearly adverse within the definition of adverse set forth in Chambers, the petitioner was unable to cross examine her or to contradict her. This left her denial of guilt intact before the jury. Her denial pointed the finger at the petitioner because he was the only other suspect. The petitioner was also unable to get Linda to admit her guilt on the stand. There was a reasonable prospect of doing this because Linda had previously made admissions against her penal interest with regard to this case on a number of occasions. But defense counsel was unable to ask Linda, whether she knew in fact that the petitioner did not do it, because the Trial Court applied the Voucher Rule to preclude this enquiry. Even if defense counsel would only have elicited from Linda that she had previously stated that the petitioner did not do it, this evidence would have had a dramatic impact upon the jury. This is especially true in light of the fact that she had testified on the stand that the petitioner was alone at the time, along with the baby at the time that the baby was injured and that she had gone to the store. It is very important to note that Linda’s testimony is the only evidence which would point the finger of guilt at the petitioner rather than at Linda except for the confession given by the petitioner which he recanted on the stand and attempted to explain away. His inability to extract the evidence from Linda also hurt his ability to support the recantation of his confession. Under Washington versus Texas, the petitioner was entitled to use the testimony of the witnesses he had called to the stand. The situation here is very similar to the situation that this Court condemned in Davis versus Alaska. It is a deprivation of the right to confrontation and compulsory process. If you restrict a party to a single question suggesting bias or interest, when an adverse witness answers with a general denial and the party is seeking to adduce relevant and material evidence which is prohibitive in his defense. Such restriction deprive the petitioner here form revealing the falsehood and bias in Linda’s testimony. Also it may have appeared to the jury that the defense was engaged in a baseless attack on Linda and this may have hurt the petitioner as well. We would call the Court’s attention to the opinion of the Ninth Circuit Court of Appeals in United States versus Torres which is based on this Court’s decision in Chambers. The situation there paralleled of the situation in Davis. We would submit that the rights to confrontation and compulsory process are clearly applicable without regard to whether a third-party confession appears in the record. We based this submission on the cases of Washington, Davis and Torres in edition to this Court’s decision in Chambers. As early as you direct appeal, the petitioner has argued that the Voucher Rule has been applied to limit the right of the petitioner to use the testimony of Linda and Dana Maness in violation of the Sixth Amendment principles set forth in Washington versus Texas. In Chambers, this Court set forth a balancing test for evaluation of the constitutionality of a clash between the Sixth Amendment and state evidentiary rules. The two components are the value and validity of the rule in question, and the second is the impact on the petitioner’s ability to present a defense. With regard to the first component in this case the Voucher Rule is an irrational rule. It promotes no state interest whatsoever. Certainly the respondent has not come forward with any defense or explanation of the rationale for the Rule, or the rationale for the application of the Rule in this particular case. With regard to the impact of the Rule on the petitioners’ ability to present a defense, we would refer this Court through the findings of the court below to the effect that the Voucher Rule undoubtedly worked to the detriment of the petitioner, and that some evidence suggesting his innocence was excluded. It is also important to notice that the Court said that the fact finding process had been impaired due to the inability of the petitioner to cross-examine Linda Maness. Because there is no legitimate state interest to be a countervailing weight in the balancing test we submit that in the light of the findings of the Fifth Circuit, the conclusion is inexorable, that the record reflects a constitutional violation of the petitioner’s right to fundamental fairness, as well as the Sixth Amendment guarantees incorporated in the Due Process Clause. In conclusion I would like to briefly address myself to an additional question which the respondent has attempted to smuggle before this Court in his brief on the merits. The additional question relates to the exhaustion of the state remedies. We would submit to the Court that this case reflects no reason whatsoever, for this Court to depart from his normal policy to disregard a question when it is not properly before this Court, it was not presented to the court below, and if accepted by this Court would alter rather than affirm the judgment of the court below. Additionally, substantively the argument is without merit. The petitioner has presented to the State Courts a claim substantially equivalent to the claim presented to the Federal District Court. This is the test set forth in the respondent’s brief and in the Fifth Circuit case in Lamberti v. Wainwright, clearly under the exhaustion doctrine repeated application to the State Courts are not necessary and the mere possibility of success in State Court in light of the facts of Chambers v. Mississippi is no bar to federal relief in this case under this Court’s decision in Wilverding.
Speaker: But it was raised in the Fifth Circuit, wasn’t it?
Bennett H. Brummer: It was not raised in the Fifth Circuit before the panel which decided the -- which entered the judgment which is before this Court. It was raised in a supplemental brief after the decision was made by the panel, when the Fifth Circuit tentatively agreed to hear the case en banc. The court subsequently vacated, the order of granting rehearing en banc and no action was ever taken en banc. The court reinstated the panel decision and the panel decision in no way could have related to the exhaustion argument.
Speaker: No, but really, what I am saying is that your due process argument certainly was as defense below.
Bennett H. Brummer: Yes, there is no question. That is the only question that was raise below. The respondent’s exhaustion argument was not. We would respectfully request that this Court reverse the judgment of the court below, I would respectfully reserve the remainder of my time for rebuttal.
Speaker: Mr. Brummer before you sit down, we talk yesterday little bit about the fact that these letters are not in evidence, the ones that you rely on, and in the examination of the wife in the court below, when the letters are offered, the court, after looking at one or two of them, said, counsel, what you have shown me is a bunch of love letters to her husband from a girl who loves her husband, no matter what he has done, it says so, and we except that characterization by the court as a correct description what' is in the letter.
Bennett H. Brummer: No you can not Your Honor. The letters clearly reflect that the wife wrote to the petitioner saying, they do not understand how I can feel love you but they all think you did it. Those were the letters that we attempted to submit to the --
Speaker: Where Mr. Brummer is the most accurate statement in the record of what you can tend the letter show. I could not even find the summary of the letters in the Appendix.
Bennett H. Brummer: In the order of dismissal entered by the District Court, the District Court accepted our averment as to the contents of those letters on the basis that --
Speaker: How do we know from the written material what your averments are, where do we find that?
Bennett H. Brummer: The order of dismissal Your Honor is contained in the Appendix at Pages 213 and 214. At Pages 213 and 214, the District Court's order of dismissal is reflected saying that Linda knew the petitioner had not done it and that Linda was not at the store during the afternoon of April 14th, 1971.
Speaker: In Page 213, he describes the letters in that way.
Bennett H. Brummer: Yes Your Honor and these allegations were based on the averments of the petitioner which were uncontroverted before the District Court. He was entirely entitled to make those findings. Certainly the respondent gave him no cold method, nor did the respondents cross appealed those findings.
Speaker: As to the allegations that she knew petitioners had not done it.
Bennett H. Brummer: That is right, and that is exactly what the defense counsel tried to ask her on the stand, there was -- maybe the third question out of his mouth on approximately Page 85 of this Appendix, he said isn’t it a fact that you know that Gary Maness did not, and he was cut off in mid question by an objection based on the Voucher Rule and that objection was sustained by the Trial Court.
Thurgood Marshall: Mr. Brummer, I have a lot of trouble with these letters, they are not in the record; they are not in the place. How are they before us?
Bennett H. Brummer: They are before you, Your Honor in support of our general --
Thurgood Marshall: Well, how are they before us if you are not here, are they?
Bennett H. Brummer: The letters are before you in fact because they were attached to our motion to supplement in the Fifth Circuit which was denied by the Fifth Circuit. The unavailability of the letters never became a question until the Fifth Circuit raised the question of there unavailability. In the District Court the question of their unavailability never came up. We were relying on Federal Rule or Civil Procedure 8 which says that the effect of a failure of the respondent to deny is to admit our allegations in our petition and if the respondent is without --
Thurgood Marshall: You mean that, they have admitted that.
Bennett H. Brummer: That is correct Your Honor.
Thurgood Marshall: Well, what did they admit to these letters ought to say?
Bennett H. Brummer: Whatever we allege, because they made no --
Thurgood Marshall: I do not see how in the world -- your allegations mean something, but the letters are different. The best to have in this record is your version of what the letters say. That is the most -- that is in this record.
Bennett H. Brummer: Your Honor, Federal Rule of Civil Procedure 8 (b) says, if the respondent is without knowledge, he may so state and this constitution --
Thurgood Marshall: I do not care about any rule at all, but what I am saying is --
Bennett H. Brummer: I see.
Thurgood Marshall: -- in the record -- the letters are not in the record, right?
Bennett H. Brummer: Yes.
Thurgood Marshall: They are not in the record.
Bennett H. Brummer: That is correct.
Thurgood Marshall: So, we can not consider them, can we?
Bennett H. Brummer: I think as you can safely ignore them and still grant this petitioner relief. Your Honor, that if proffer of Dana Maness’s testimony supports the exact same contentions that are raised in the letters that the petitioner was not guilty and that Linda knew it and that Linda was not at the store at the time the baby was injured as she had testified from the stand. The same allegations, the letters, I am really corrobative in a sense of Dana Maness’s testimony, which is before the Court in the proffer on Pages 123 and 124, and we would submit that coupled with the inability to cross-examine Linda Maness is sufficient to warrant, granting this petitioner relief.
Speaker: Did you proffer the letters themselves?
Bennett H. Brummer: We did not Your Honor. The Trial Judge, however, precluded he was willing to look at those letters and exclude them without any admission. She made it quite clear that there was no sense in the petitioner’s counsel persisting because she was not going to get those letters, she is not going to let those letters into evidence in any way.
Speaker: Well, how does the reviewing court evaluate the Trial Judge’s exclusion without examining the letters?
Bennett H. Brummer: Your Honor, the letters are only supportive of our general claim.
Speaker: How does the reviewing court know that?
Bennett H. Brummer: Because we made allegations to that fact in the Federal District Court which either the Court or the respondent could have called into question. Neither the respondent nor the Court called those into question, as a matter of fact, the court adopted those characterizations. That is how you know.
Speaker: Mr. Brummer, let me ask one more question. Justice Powell has showed me the Appendix to your motion to supplement the record in the Court of Appeals in which you did quote from at least one of the letters and in one of those letters there is the statement, “Nobody can understand why I still love you but then they all think you did it, that is when I said before.” Now, can you tell me whether that letter is was one of those that were shown to the Trail Judge at the trail? Is there any way we can know whether that is one of those letters? Is there any way we can know which two letters were shown at the Trial Judge?
Bennett H. Brummer: Your Honor, they were not just two letters shown to the Trial Judge; the petitioner’s counsel said, I have a bunch of letters. Then the Trail Judge said, let me see the one that you have there, and then she excluded all the letters on the basis of the Voucher Rule.
Speaker: But he refers specifically the one, a love letter to her husband from a girl who loves her husband no matter what he has done, that says that his characterizations is quite different from the impression one gets from the language you emphasize. The answer is I suppose is the record really does not tell us which letters were shown to the Trial Judge. The whole bunch was handed to him, but which one he is referring to, we do not know, because none were marked at the trial.
Bennett H. Brummer: I suggest that the Court might look at Page 88 of the Appendix which identifies --
Speaker: What page?
Bennett H. Brummer: Page 88 of the Appendix which reflects --
Speaker: Mr. Mack(ph) I have a whole bunch of letters Your Honor the court, I just want to see the one we are talking about.
Bennett H. Brummer: That is what the Trial Judge said.
Speaker: And I was trying to figure out which one you were talking about.
Bennett H. Brummer: April 28, 1971 approximately at mid page Your Honor.
Speaker: Right.
Bennett H. Brummer: But it is clear, lower on that page that he has a whole bunch of letters and he makes every attempt to have those letters introduced into evidence.
Warren E. Burger: Well every attempt is something; I think perhaps you have done a better job.
Bennett H. Brummer: Thank you. If possible I would like to reserve some of my time for rebuttal.
Warren E. Burger: Yes, you reserve.
Bennett H. Brummer: Thank you.
Warren E. Burger: Mr. Berger.
Arthur Joel Berger: Mr. Chief Justice and may it please the Court. My name is Arthur Joel Berger counsel for the respondent Louie (ph) Wainwright. Your Honors, petitioner’s argument in this case is predicated on the mischaracterization that is solely because of an arbitrary finding the Linda Maness was not an adverse witness at the Trail Court pursuant to Florida Statutes 90.09 kept numerous facts from the Jury which would tend to establish a doubt of petitioner’s guilt. Petitioners’ then rise on Chambers as the legal basis for his relief. Respondents in which Your Honors then under a proper characterization of what intact the court below, four concepts resolve this case, and these are the crucial concepts with which this Court must filter the various factual matters which he has before. State Court has no problem with this Court’s decision in Chambers, but the factual situation in Chambers Your Honors is materially different than that situation which this Court is presented with in the instant case. In Chambers the defendant was precluded from introducing dynamite, highly prohibitive, quality reliable evidence, evidence of his innocence. But in this case Your Honors, the evidence which was excluded smokescreen innuendo evidence with which petitioner sought to confuse the jury.
Speaker: But it wasn’t excluded on that basis.
Arthur Joel Berger: That is correct Your Honor. There were numerous Rules of Evidence which sustained the Trial Court’s rulings in exclusion.
Speaker: But it wasn’t -- the Trial Judge did not use those reasons.
Arthur Joel Berger: Yes Your Honor, I ma merely suggesting this, I will subsequently get into the reasons, why this occurred. I am merely stating that once you see the situation if actually has exists in this record that you will be able to see that what petitioner is setting up as a smokescreen and he wishes to analogize that smokescreen to the solid evidence, the dynamite evidence that Chambers had which so concern this Court. Thus Your Honors the Chambers was decided not only on evidentiary principles but most importantly, as Justice Powell emphasized in his opinion, was decided on the totality of the circumstances that were before this Court when it rendered Chambers decision. Second concept we ask you to filter and we subsequently get to the facts what actually occurred in this case, is that in Chambers, this Court to painstaking efforts to clarify one proposition that the state and the defense must still follow the Rules and Evidence and those Rules of Evidence Your Honors that this Court require both sides to follow. The rules which in fact are based on a theory that these rules enhance the integrity of the fact finding process. This Court did not hold in Chambers that every evidentiary ruling becomes a constitutional question regardless of whether that Rule of Evidence enhances the truth finding process. This Court did not state that the mere preclusion of any evidence denies due process if it in some way hampers the defendant to presenting his case of and creating some doubt of guilt. If such were the test Your Honors which is an essence what the defendant is stating to this Court, if such were the test there would be no Rules of Evidence which could withstand a due process attack. In this respect Your Honors, the Maness situation is directly opposite the rationale of Chambers. In Maness Rules and Evidence which kept up the evidence were rules designed to ensure the integrity of the truth finding process. The third concept we ask you to look at this case or by after we get to defense.
Speaker: Mr. Berger do you characterize that Voucher Rule is such a rule.
Arthur Joel Berger: Your Honors, we note  what this Court set in chambers but we do submit that the Voucher Rule has one very important purpose with regard to integrity of the truth finding process and that it precludes confusion of the jury. It precludes --
Speaker: In other words, do you characterize that Voucher Rule is such a rule?
Arthur Joel Berger: Yes sir, it does --
Speaker: So, your position is not that the Voucher Rule did not have any impact but rather that the Voucher Rule is a good sound rule.
Arthur Joel Berger: No Your Honors, we will suggest later. This case did not turn on the Voucher Rule at all as we have indicated, petitioner has mischaracterized the situation, he tried to create the simple picture before this Court that but for the Voucher Rule all this evidence would come in, but we submit that in spite of our position or in our position that other Rules of Evidence, rules which no doubt can --
Speaker: But wouldn’t that be correct to say that the Trial Judge did in part rely on the Voucher Rule.
Arthur Joel Berger: Yes Your Honor.
Speaker: And you are showing that he had other grounds on which he might have relied?
Arthur Joel Berger: Yes Your Honor, but we will show --
Speaker: We do not really know whether he would have relied on those grounds had he not placed his ruling on the Voucher Rule.
Arthur Joel Berger: Well, Your Honor as we will show clearly that the only purpose of the Voucher Rule is primarily state objections. There are some indications in the record, the Court was merely stating, we have got to feel that this witness was adverse, but you will see in reading of this transcript, the crucial portion of this record which we will get to very soon.
Speaker: Mr. Rogers (ph) I think Wigmore contains the statement that many jurisdictions follow a rule that on appeal where a challenge has made to the exclusion of evidence, the Trial Judge’s ruling will be upheld if there was any basis upon which the exclusion could have been properly sustained, even though the reason assigned by the Trial Judge was not a correct one. Is this (Inaudible) that rule do you know?
Arthur Joel Berger: Yes Your Honor, in those cases which Florida oppose are cited immediately after our citation to the same rule stated in cases by this Court.
Speaker: Doesn’t all this argument Court of Appeals?
Arthur Joel Berger: I am sorry Your Honor.
Speaker: Was this position taken in the Court of Appeals which you are now arguing.
Arthur Joel Berger: Which position Your Honors?
Speaker: That there were other reasons for it or refresh new reasons.
Arthur Joel Berger: The initial brief, that was filed by respondent in this case directed generally to this proposition. The exact theory Your Honors which we were representing to this Court in our brief on both grounds was presented in supplemental brief order by the en banc court.
Speaker: Well, I am not talking about the en banc court about the panel court.
Arthur Joel Berger: The Three-Judge Court, Your honors.
Speaker: Yes sir.
Arthur Joel Berger: They did not, -- I do not think that the opinion to begin with this Court of the brief of our side lade out all these rules of correspondence.
Speaker: You did not raise it. Is it random? I am not saying you can not do it, I am just trying to find out the facts. I am not saying it is improper.
Arthur Joel Berger: The theory that was, the exact theory we are presenting here Your Honors is the one that I presented when I got the case in supplemental brief en banc.
Speaker: But not before the panel. That is what we trying to get clear. Did you raise these arguments and make these points when you argued to the three member panel of the Fifth Circuit.
Arthur Joel Berger: I did not argue to the three-member but that would be -- we did not precisely take these exact positions.
Speaker: Mr. Berger I think you are suggesting, because you help me throughout the very beginning of what counsel intend to be an adverse examination of the wife. He started out, isn’t it a fact that you know that your husband Gary Maness objection did not, objection sustained. Counsel has represented towards intended that the intent of that question was to represent that to ask if she did not know there husband did not kill the baby. Now, what is the proper reason for sustaining that objection to the leading question other than effect that she was not an adverse witness and therefore the Voucher Rule applies?
Arthur Joel Berger: Well Your Honor, if I might rephrase your question, what petitioner was asserting is that it was the Voucher Rule, that kept this out and we ask Your Honor to look very closely, it’s the Florida Statutes 90.09, 1971 Statutes, which says nothing about leading questions Your Honor, it talks about adversity. What this Court did, as we get to it in one moment, is sustained these objections and expressly stated, Your Honors on Page 86.
Speaker: Correct.
Arthur Joel Berger: Court said, the objection sustained stricken, she is your witness, ask her question that are not leading, he did not say, you could have impeach her.
Speaker: Well, but the court said, asking questions that are not leading is because she is not an adverse witness.
Arthur Joel Berger: I know Your Honor. The court may, under Florida Law, has in its discretion, the right to allow any party to ask leading questions. You can ask leading questions of your own witnesses, is has nothing to do directly with the Voucher Rule. The Court was merely stating not now.
Speaker: I mean you have a right to ask leading questions if it is not at the discretion of the court of the witness is adverse. So, the whole basis for the ruling is quite obviously that the court was not willing to accept the view that she should be treated as a hostile witness. Isn’t that -- am I wrong about that?
Arthur Joel Berger: Well, Your Honor, I guess we just differ on that. Like I said, my understanding is that this is a ruling or petitioner is trying to indicate a ruling totally on Florida Statutes 90.09, and that there is nothing in this statute which indicates anything about leading questions. That is totally in benefit of the proposition. Third concept which was now emphasized is this, if the state trial court judge acted fairly to both sides in this case, it do not act arbitrarily when it rules and it did not abuse its discretion in any one of those rulings. Five, the forth and last principle we ask you to look at before we go to the record in this case is this, assuming that there was any evidentiary error which this Court finds in this case that error do not wrong as to the level of denying petitioner an unfair trial. For three primary reasons: Your Honors as you review the testimony of petitioner, you will find according to his confession his crime occurred around 4 o’clock. The state obviously did not when the fatal blows were stuck. Petitioner in his testimony does not state that he was not in the house at 4 o’clock, in fact his testimony indicates that he was there.
Speaker: Well, does not the autopsy of this infant child showed that the injuries were over a long period of time.
Arthur Joel Berger: That is correct Your Honor.
Speaker: They could not determine when the lethal blows were struck on the child’s head.
Arthur Joel Berger: That is correct Your Honor. But though petitioner tells you that he was still at the house and that viewing his entire testimony, there was not one statement in this record during petitioner’s case in which he says Linda did it. There were a lot of inferences that petitioner wishes you to draw stating that he said that, but unless petitioner turns to the jury and tells him, my wife did it, how can any evidentiary error that might have occurred in this Court --
Speaker: Mr. Berger, right on the first page of the examination the question, “Did you kill your baby?” Answer, “No I did not.” Didn’t that present that very point? You know they dictated the idea to the judge that that was the defense theory.
Arthur Joel Berger: Well, Your Honor what I am stating at this point is that if petitioner when he gets up there on the stand and does not state my wife to did it that that as totality in construing the totality of the circumstances, is very important to determine whether if this Court find any evidentiary error that this case constitutes within due process. The second point is that defendant never presented any secondary evidence other than his statements to indicate in any way that Linda had anytime touched that child. The third point is that the evidence which petitioners complaining about now that he says was kept out, was not highly exculpatory, at best Your Honors this evidence was directed towards showing that Linda was not a credible witness or might be a liar. Furthermore, that she might have been present at the time of the crime, but mere presence at the time of the crime Your Honors is not, as petitioner would have this Court equate, is showing that Linda committed this crime. As we have indicated this case turns on 15 pages in the Appendix, I would ask the Court to indulge mean if they would to look of the Appendix with me to see exactly what occurred at this trial and what the judge’s rulings were. That would be --
Speaker: (Inaudible) to begin with.
Arthur Joel Berger: Yes that would begin on Page 85. Now, I would like for you to get a sense from the cold record of what the Trail Judge was doing.
Potter Stewart: Page 85?
Arthur Joel Berger: Yes, Justice Stewart, 85. Petitioner starts to ask a question, he has not even asked Linda Maness her name yet. So, the Court states that that is what he should do. He next immediately tells this Court before there is any question asked that he wants Linda declared as an adverse witness, but there was no evidence before the Court to indicate that she is an adverse witness. That is all the Court says at this point. It is denied because there was no showing. Now, he starts to ask another leading question. The prosecutor indicates something with regard to Florida Statutes 90.09, but what does the court do. Does it say, you can not impeach Linda because there is no way you are going to make a showing that she is adverse? The Court says but your objection sustained as to leading. I do not know whether he is impeaching or not. The Court is stating not now, she is not adverse. The Court is not stating categorically that she could never be impeached. Page 86, counsel starts to inquire and the Court does not say you are not allowed to impeach Linda Maness because she is never going to be an adverse witness and we are cutting it off right now, such as it was the situation in Chambers, where in Chambers this the Trial Court had all the facts at the point. What she is stating is, just ask her questions that are not leading. Now, we go down a little bit and we start the testimony. One of the questions is, with regard to a bruise that this baby had in the morning, the defense ask, how did that baby get the bruise on her forehead? Does Linda Maness turn around and say, Gary, my husband did it? No Your Honors. What does she say? She say, I do not know. This is an adverse way, that he wants to call adverse, it was pointing the finger to her husband, I do not know. Then the Court merely states after that, well I think we just return at them narrative events that you are starting to ask of me -- narrative. That is all the Court says, it does not say, do not impeach, because we have got to look what the Trial Judge is doing to petitioner in this case. Page 88, there is an objection regarding hearsay, the Court sustains on hearsay grounds and not the adverse with this rule. Counsel then asked, “Did you tell anybody anytime how that baby was injured?” And this is the answer of petitioner, what have you believe, is on adverse witness, “No, I did know how she was injured.” She is not testified against petitioner Maness. Then the Court says, let us start talking about, or the defense starts talking about the letter we got day-to-day for 28, 1971. It is a letter that is a marked, he just gets up there and says, read this letter to the Court. Now, a letter that has not even introduced in evidence or just even been sought to be introduced into evidence. Mr. McWilliams (ph) suggest there is no proper predicate that the Court should sustain, what does a court do with regard to this letter, in spite of the fact that it is not introduced, in spite of anything this Court bends over backwards and says, let me see that letter you are starting to talk about now, the specific letter, the April 28th, letter which you want to have read to jury. And this has done as the Court emphasizes, knowing that it has not even been even marked for identification, Your Honors, is bending backwards, over backwards to try and be fair to the defendant. She looks in that letter and she makes an unchallenged ruling after looking at that letter and states that all this letter shows is that Linda Maness loves her husband, it does not show adversity. Then the Court asks, is there something you attempting to impeach this witness on? There has been no question asked along these lines. That is an indication Your Honors, not that petitioner will never be allowed to impeach but just that this Court having heard no inconsistent statement states not now. He then proceeds on and the Court says, you can not get this letter on to evidence unless there is something she says that is contrary. You want to impeach by an inconsistent statement, you have to have some statement for which the evidence you are going to use as inconsistence. This is not a Trial Judge that is saying you can never impeach because of the Voucher Rule. Defense counsel says, well, I have got another letter, eventually this letter. The Trial Judge that they would have you believe is acting arbitrarily in keeping our all of this evidence. She says, okay I will look at that letter also. She categorizes an objection again, on the basis of that pleading, not the petitioner Maness will never be allowed to impeach, and all this court says is everything you have shown me, and obviously in this case, petitioner never showed all these letters, that the Court never said, I will never look it all these letters, I will look at everything you got. The Court says, all you show me as a bunch of love letters so far. This is not an adverse witness yet. Then Mr. Minkess (ph) something that would be very important in this Court’s review of this various items or evidence. He explains why he wants us to use this letters as a substantive evidence of guilt, but he says in Page 90, he says these letters can come in from impeachment. Now, what does the Court say? Does the Court say you can never use these letters for impeachment? This Court judge did not preclude arbitrarily in impeachment of this witness. She says, but there is nothing to impeach yet, there is an inconsistence statement. The Court then says something that is quite contradictory to the impression that petitioner wishes you to get off the Trial Judge’s actions because right after this, this colloquy occurs at the Court, but there is nothing to impeach. Mr. Minkess (ph) could I call her as an adverse witness? Then what does the Court say, do they say, do you want to let him, she is not precluding at this point. Then all she says is right after that, well, let us pass on the issue right now, let us go back to the original question you asked, and if there is something to impeach we can come to it. And she says, I think that is the best way to do it. Then petitioner talks about some statement to the police or some statement regard to the being out the house. In all the Court says is that this time she is not an adverse witness, these letters show that she is not an adverse witness, and then the Court says something that this Court said in Chambers. That is on Page 91. The Court, “We are going to have to proceed by the Rules of Evidence counsel, she has not said anything for you to impeach.” At this point counsel talks about some letters to the police indicating that she never stated in that one statement to the police that she was not out of the house. The Court looks at the statement and says that there is nothing inconsistent because they never answer the question. It is not stating that as petitioner would have you believed that what occurred at this trail was a precluding of his ability to impeach solely because of Florida Statutes 90.09. Then there is another crucial point which we will emphasize subsequently during Maness ask his wife, did you tell your husband on particular date that she was pregnant, then what does counsel do, he does not get an answer. He withdraws the question. This question has never brought up again, there is never testimony. This is at the bottom of Page 92 Your Honors.
Speaker: Well, you have skipped something in the middle of Page 91 where the prosecutor said, that is tending to impeach his own witness which is not admissible, and the Court said, that is right.
Arthur Joel Berger: Because at that point Your Honors, she has not indicated, there was no evidence to indicate that Linda Maness was not --
Speaker: For some reason she calls defense counsel, ‘boy’. That is kind of odd, isn’t it?
Arthur Joel Berger: I beg your pardon.
Speaker: That is right, and boy, this is not an adverse witness.
Arthur Joel Berger: She is not referring to defense counsel Your Honor. That is just a colloquial expression, as I understand it. No boy, is this an impossible situation, something like that.
Speaker: We are just sticking with that for just a moment Mr. Berger. You pointed out that the Court said, just a little bit above on Page 91, she hasn’t said anything for you to impeach, and Mr. Minkess said well she said that she was out of the house at the time that the baby was supposedly be. Now she had said before the jury, and I have evidence here that she said that she wasn’t, and then the Court wasn’t let him use that evidence relying on the Voucher Rule as I understand it. Isn’t that correct?
Arthur Joel Berger: Yes Your Honor, so be correct -- on part.
Speaker: That particular purported contradiction in the direct testimony as to whether or not she was present when the child was allegedly beaten. That was a contradiction that was excluded on the Voucher Rule and that really went to the heart of our case, didn’t it, as to whether or not she was present there?
Arthur Joel Berger: Well, Your Honor, at that time the Court was merely stating that it had no evidence before that she was adverse, but it was not stating that --
Speaker: Then Mr. Minkess pointed out that there was the conflict, oh I see as to the adversity point because --
Arthur Joel Berger: That is all what the Court was doing, they said, do not asking him the question, there is nothing inconsistent. Yeah, you have not shown me adversity yet. It did not say you can never bring this in later.
Speaker: How could the defense counsel had shown adversity? If the theory of adversity is that she really is the one who killed the child, and if that point were made to the Trail Judge as it was by the direct question, did you kill the child? What more was counsel required to do to demonstrate adversity?
Arthur Joel Berger: Well, Your Honors that raises a very important point. The concept of adversity is that a witness subject before the Court and tell the jury something that is incriminating against the defendant. Now the question that you have posed or other way you have formulated the question is that you are now making the adverse witness test, not one as we had indicated, but a suspect test, which is --
Speaker: But she did say something that tended to incriminate the defendant because she said that she left the house and then when she came back, the baby was in the condition that precipitated the death.
Arthur Joel Berger: Yes but she never says the defendant did it at this point moreover Your Honor --
Speaker: But she did say the defendant was -- she was gone about 20 minutes and the only person there was the defendant. That is not the very difficult inference that draw, is it?
Arthur Joel Berger: Yes, Your Honor, but she repeatedly tell to the jury, “I do not know how this baby was killed.”
Speaker: She said that because she was not there but you do not suggest that that evidence tended to incriminate the defendant. Is that your view of the facts?
Arthur Joel Berger: That would be correct Your Honor because her position is she does not know how this baby was hurt. She was not testified arbitrarily.
Speaker: You mean she knows that the baby suffered the beating during 15 minute period when she was away and the father was the only person present and that is not incriminating. That is your position.
Arthur Joel Berger: She does not state that she knows that the father was the only person present.
Speaker: Well, he was there when she left then he was there when she came back and she does not know if anybody else. Now, that much is clear.
Arthur Joel Berger: Yes, that is correct Your Honor.
Speaker: Well, in a situation where the two people, three persons in a room and one of them is killed, and it is obvious that one of the two did it and wouldn’t both of them be adverse witnesses without more.
Arthur Joel Berger: No, Your Honor, we submit again that you can not take this position that an adverse witness or any person can be impeached only because he is a suspect, because if that is true Your Honors in every case that we will ever have unless there is a clear confession that everyone sees. There are multiple suspects with regard to a case.
Speaker: My case is that two, there are two people in the room, one of the two kill the third one. As our question is which one of them did it. That is the only question involved? Wouldn’t they automatically be adverse witnesses, both of them?
Arthur Joel Berger: I submit not Your Honor. Again, I submit that that is just a suspect testing and there would have to be some parameters once again as part of --
Speaker: The only way it could be a non-adverse witness would be for the witness to say, he did not do it and I did it. That is the only way.
Arthur Joel Berger: No Your Honor, we submit --
Speaker: What other way?
Arthur Joel Berger: We submit that the situation --
Speaker: What other the testimony could he give?
Arthur Joel Berger: If Linda Maness had gotten before the jury and said, “I know Gary Maness did it, he did it.” In that situation there would be adversity.
Speaker: Well, suppose that the witness says, in my case, the witness says, I did not do it. Both of them say I did not do it. So, one of them called to examine the other one.
Arthur Joel Berger: I mean if one part is called to the stand, I submit Your Honors, that  that --
Speaker: Yeah, as an adverse witness.
Arthur Joel Berger: I submit to that that is not the predicate.
Speaker: Well how would you establish that he is an adverse witness in my type of cases?
Arthur Joel Berger: I submit Your Honors that you, I guess you could not unless the witness was getting up thier actively.
Speaker: You couldn’t establish that there was an adverse witness on my facts the one of the two of them did it.
Arthur Joel Berger: That is correct Your honor, because, as I have indicated, then that would allow every suspect in case to be brought to the stand and cross examined again totally destroying that witness for no apparent reasons. And if there were four people involved to our suspects, petitioner would have you believe that you can just create each, one of those four to create some kind of doubt.
Speaker: What is wrong with this?
Arthur Joel Berger: Well, Your Honor that goes toward, we submit, confusion of the jury, unless there are some affirmative evidence in this case like in Chambers.
Speaker: Wouldn’t she agree that with this dialogue back and forth between the Judge that this jury was confused in this case.
Arthur Joel Berger: Yes Your Honor and that is exactly what counsel wanted to do.
Speaker: It would have been less confusing if she had testified.
Arthur Joel Berger: Counsel, at his point across Your Honors, without any answers, he was creating doubt merely by the questions.
Speaker: What is the Rule of Evidence in Florida about prior inconsistent statements of a third-party witness?
Arthur Joel Berger: Well, Your Honor that rule is contained in Florida Statutes 90.09.
Speaker: And what is it?
Arthur Joel Berger: That statement says, if I can quote.
Speaker: Finish your answers.
Arthur Joel Berger: It says, “But before the last proof can be given, and that is prior inconsistent statement, the circumstances of the statement sufficient to designate the occasion, must we mentions to the witness, and he must be asked whether or not he made the statement.”
Speaker: What I want to know is whether the prior statement is admissible only for impeachment or is it --
Arthur Joel Berger: Oh (Inaudible) Your Honor. Florida Law provides that if you have impeaching evidence that evidence comes in only from impeachment unless that particular piece of evidence also is admissible substantive evidence under Rules of Law, as we have indicated in remainder of our brief which we are unable to get to that there are numerous rules which preclude this evidence from coming in as substantive evidence. Even though on this record Your Honors we know that there was no indication of --
Speaker: Well, let us just assume that is an out-of-court statement of the witness, a third party witness, testifies something in court and then the examiner wants to introduce into evidence an out-of-court prior statement inconsistent. Let us assume that it is admissible. Is it admissible only for impeachment or not?
Arthur Joel Berger: No Your Honors, the procedure that we would have to be employed in this case is that a normal impeachment type of examination would have to occur following that counsel must mark for identification and seek to introduce that evidence as substantive evidence itself, in essence where it is true, and not just to show contradictions.
Speaker: Is it admissible for its truth?
Arthur Joel Berger: Well, that depends on the evidence. As I indicated before, I am sorry if I was not cleat, then the Court must rule on this piece of evidence as it would any other piece of evidence and determine if it is admissible.
Speaker: So, if it is hearsay, it is not admissible.
Arthur Joel Berger: Exactly, it would be used for impeachment but if it is clear hearsay, it could not be admitted as substantive evidence if the party sought to admit it as substantive evidence and tell the Court that it wanted that evidence admitted as substantive evidence in addition to impeaching evidence. Thank you Your Honor.
Warren E. Burger: Mr. 48.58, you have one minute left.
Speaker: Mr. Brummer, I won’t trespass on your minute if the Chief Justice will extend it a minute. On Page 28 of the Attorney General’s Brief, he makes the statement, “At no time during Gary’s testimony, did Gary directly state the Linda gave Misty the fatal beating on April 14th.” I am reading from the Attorney General’s Brief, Page 28. I think I said it. “At no time during Gary’s testimony, did Gary directly state that Linda gave Misty the fatal beating on April 14th.” He had agreed that they were in the house together. What I want to know is whether that you can refute that statement.
Bennett H. Brummer: I don’t believe that the petitioner knew for certain or was willing to testify that for certain Linda had done that but he did directly accuse his wife. There are number of places in the record and am I can refer the Court through those places if the Court wishes.
Speaker: Did he introduce the evidence of any other witness supportive of that view?
Bennett H. Brummer: He offered the testimony of Dana Maness to the extent that Linda said that the petitioner did not do it and that Linda had not gone to the store at the time the baby was injured as she had testified from the stand. Additionally petitioner’s counsel in opening statement of the five sentence of his own statement, he said that petitioner did not do it and we will show who probably did. He had previously stated that Linda would be the defense’s chief witness. The petitioner had denied killing the baby on the stand. There are only two suspects in this case. He testified that Linda discovered the baby comatose, and that the baby was injured while he was in the front yard outside of the house. He testified that Linda was lying when she left the house. I will give you the references for this if you like. The opening statement regarding the fact that defense was going to show who probably killed the baby appears at Appendix 25 that Linda would be the defendant’s chief witness at Appendix 17, the petitioner denied telling the baby at 100, Linda discover the baby according to Gary at 102, Gary testified that the baby was injured before the petitioner returned from work, 101, that Linda was lying when she said that she left the house, 117, that the petitioner testified that he lied to the police to protect Linda from jail, 108-109, 114, 117, 120. Additionally he testified that an inspector head, the hospital head told him that one of them would go to jail if the baby died. That appears I believe at 108 and two times on 120. The petitioner further testified that he had never struck the child on the face contrary to Linda’s testimony and also contrary to the proffered testimony in Dana’s, in the proffered relating to Dana’s testimony where Dana say that Linda said that the petitioner never touched the child, and also that the petitioner only knew what Linda had told him about how the child was injured. And this appears at numerous places in the record at 120, at 118-119, at 115, and at 103-105. I would also, in terms of whether he was successful in pointing the finger back at Linda. I would also appoint out to the Court that the State requested a jury instruction to convict Gary as an accomplice. He could only have been an accomplice to one person. And they made that request at Page 134 of the Appendix. That request was denied by the Trial Court.
Warren E. Burger: I think you have answered the question abundantly.
Bennett H. Brummer: Thank you Your Honor.
Warren E. Burger: The case is submitted.