Earl Warren: Number 95, Ruth Elizabeth Chapman and Thomas LeRoy Teale, petitioners versus California.
Morris Lavine: May it please the Court.
Earl Warren: Mr. Lavine.
Morris Lavine: This is an appeal from the decision of a Supreme Court of California on a death penalty case involving the petitioner Thomas LeRoy Teale and life sentence of Ruth Elizabeth Chapman who was -- both of whom were convicted in San Joaquin County following a trial by jury. At the beginning, I would like to make two corrections or in the record. I call the attention to the clerk of the Court that this case came up during the pendency of the Griffin case and as stated in the respondent's brief on page 15 all over conviction in the case at bar was obtained in 1963, the processes on direct appeal have not been completed prior to Griffin and hence the Griffin rule would apply say for the application of a harmless error rule of page 15 in the respondent's brief. I want to call that correction to Your Honors because in my summary of the argument, I stated that the Griffin case have been fully decided. This was incorrect and I call it to the attention of the clerk didn't get corrected in my brief. The second point I wish to call to Your Honors' attention is the fact that Article 6 Section 4.5 the so-called harmless error rule in the State of California has been practically readopted in its words on November 8, 1966 when California adopted a partial set of amendments to its State Constitution. So, where we refer to Article 6, Section 4.5 of the California constitution that is now Article 6, Section 13 of the California Constitution. Well, however, it would -- it is practically the same in its wording as it was prior I think there's just one word changed but not materially to affect anything that we argue here. The -- this case involves the question of the comment of the prosecutor throughout the case in his argument in the circumstantial evidence case. In -- prior to Griffin versus California, which Your Honors remember, the Supreme Court of California sent a case to this Court, sent copies of its decision, I believe in Modesto -- People versus Modesto. I believe Justice Brennan will recall during the oral argument he called the attention the fact that the Supreme Court of California was trying to prejudge this Court action. After this Court passed on Griffin versus California and reversed Griffin on the basis of comments by the prosecutor on the failure of the defendant take the stand, California again repetition this Court or rehearing which was denied and raised this question of the harmless error rule. Now, again we have in Chapman and Teale versus California the question, the admitted the fact that throughout the argument of the prosecutor there were complete comments by the prosecutor on the failure of the defendants plural to take the witness stand and this Court has set forth for a decision by this case whether the violation of Griffin versus California, number 609 was error, cannot be harmless in this case and so I will meet both of those questions on those so to speak. First of all, I think there is own case that Your Honors have had before you where there has been such a replete and continues argument on the failure of a defendant to take the witness stand. The -- in this case, the very briefly the facts are, did the bartender was found dead in a gulley on October 18, 1963 and at the time of his having been found there, the state traced back the case and commenced the prosecution arresting Mrs. Chapman on October 26 and bring her back and taking her statement, taking her to the district attorney's office where she made an 84-page statement as of 1963, it was October 18, 1962. The -- she was taken to the district attorney's office and there she was questioned extensively and made an 84-page statement without the benefit or advice of counsel. While the statement itself was that -- has reduced in evidence. She was urged to see a psychiatrist and the district attorney secured a psychiatrist to see her and his testimony before the Court was largely based upon this 84-page statement which he made to the district attorney. Now, the prosecutor went back, Mr. Ferguson who was the deputy district attorney went back to pick up Teale after he was arrested on November 2 and thereafter came back with Teale who was placed in a cell with another man who later became a witness against Teale. But neither Chapman nor Teale took the witness stand. They stood on their constitutional rights both defendants were indigent. The Supreme -- the Court appointed counsel, the public defender was first appointed and later got relieved because of a conflict of interest and these two gentlemen were appointed by the Court to represent the defendants in the trial. Mr. Richard Johnson who sits here was the former assistant district attorney in San Joaquin County and the other lawyers and immanent lawyer of the bar there and they saw the case through the Supreme Court of California. Now, upon their advice and on the advice of their counsel, neither one of these defendants took the witness stand but the prosecutor kept repeatedly buttressing his case where he lack proof with arguments. Now, these people could tell you what they chose not to testify. It would take me nearly all of my time that to read some of these comments but I'm going to read a few just to call to Your Honors' attention the many places in this lengthy record where the defendants were found guilty on the basis of comments by the prosecutor and later by the direction of the Court that they could've taken the stand and if they did not then that the jury could draw from that fact the inference that they were guilty. On page 20 of my opening brief, I set forth Ruth Chapman is sitting right over here. She is one of the defendants in this case and she is the one who certainly if anyone in this room or in this state knows what was in those boxes, she is the one. But once again she did not take the stand, raise her right hand and tell you about that. She didn't take the stand at all ladies and gentlemen. She could've come up and tells you -- us exactly what Articles were set. So, you may draw any inferences from that that you wish as long as they are reasonable. Now, we come first of all to the issue of the gun and the gun that was used or the guns that were used allegedly in the murder. Now, the prosecutor says, he doesn't know which gun was used and they brought neither of the guns that were allegedly apart of this transaction were ever found by the prosecutor brought in similar guns or guns that were suppose to be like those that were used. And now, the prosecutor then argues here. He says that now, page 1808 of the reporter's transcript and incidentally the transcript was not transcribed but you have the copy of the original record here in the clerk's office. Now, ladies and gentlemen, I don't know which one of these weapons was purchased first. I don't know that it particularly makes any difference but as you know we have had no testimony at all in that regard. In fact, I might add that the only person or persons I could give testimony in that regard would be of course the defendants themselves. So, we don't know when they were purchased or rather we know the date but we don't know the exact time or what sequence was for this I refer to here for the record people's exhibit number 14, there's 32 caliber pistol which was purchased by the defendant Ruth Elizabeth Chapman. Now, he says they don't have the weapon but they've got a replica there. Now, he says they can't tell what he goes on at some pages of argument and that he says they can't tell which weapon was used and they don't know but the defendants if they took the stand could tell the Court which weapon was used. So, he says, it's a constitutional right in both of these defendants see to fit to avail themselves of that constitutional right. But I say to you ladies and gentlemen, there are many things in this case and I will try to point them out to you at least probably not all that these defendants are in a position to take that stand and to testify under oath and give you facts concerning. They have not seen fit to avail themselves of the opportunity. Then again, he says, now up to this point page 1824 of the reporter's transcript, I appeal that the testimony clearly shows that the defendants, number one, there is motive, not in necessity item to the crime at all but only helpful, ladies and gentlemen, to determine whether or not they committed it and then he talks about a check that was passed without sufficient funds and he says, later on at page 1826. Now, ladies and gentlemen in reference to the weapons being purchased in Reno, Nevada on October 12 you have heard ladies and gentlemen no testimony and you will recall clearly you were going to have some difficulty, you really are as reference to what is and what is evidence in this case and believe me I have a few comments to say on that a little later on. But if you will recall as far as evidence is concerned or of the truth of anything at all, you don't have any evidence on why these pistols were purchased? Why did Ruth Elizabeth Chapman buy two weapons? Well, you do recall that she told on one occasion that she had a piston stolen from her vehicle and when she was taking a little trip across the country, you remember that testimony and then I'm skipping now. Then he says -- then he says, but certainly the defendant Ruth Elizabeth Chapman could tell you, she could tell you one under oath. She could subject herself to cross-examination and she could tell you then and it would evidence before you. Once again, she has not chosen to do this. So, any inference you may draw there from will be an adverse inference under the circumstances and under the instructions of a court, you are exclusive judges of the fact themselves. And I could continue on and I have quoted several of these other passages in my brief and then the comments on Teale, page 1854 of the record of the comments on --
Abe Fortas: I thought the issue was a little different?
Morris Lavine: What is that Your Honor?
Abe Fortas: I beg your pardon. Maybe I'm wrong but I thought the issue was not whether these particular comments were harmless that and the state's submission whether on the basis of the balance of the evidence, the case was overwhelming so that the error complain did not result in miscarriage of justice.
Morris Lavine: Yes. That is the point I'm coming to, Your Honor, but I have to lay predicate to show the character of these comments. So, we're to supply what the prosecution was unable to prove in the case. Now, we come to the question of whether or not this Court has ever held that the violation of a constitutional right is harmless error and we come to the point that Your Honor has just raised in the matter. I wanted to lay the predicate, Your Honor, of the terrific amount of comments made throughout to show just how the prosecutor supplied the absence of proof that was his burden by comments by him as to the failure of the defendants to take the witness stand and to supply what the Griffin case says cannot be supplied to use the silence of the defendant as the basis of conviction.
Byron R. White: Do you think Griffin really rests on the evidentiary of this utility of comments or that the comments have no evidence regarding or the silence has no evidentiary value at all, do you think it rests on there?
Morris Lavine: Yes, Your Honor. My -- my interpretation of Griffin as Your Honors laid it down was that silence could not be use to supply an evidence and that the silence of the --
Byron R. White: What's the difference? That doesn't -- that's different.
Morris Lavine: What is that Your Honor?
Byron R. White: Of course that's what the Court said that that isn't -- did it say that silence has no evidentiary value? A lot of things I believe the evidentiary value you can't use.
Morris Lavine: Well, as I interpreted Griffin Your Honor, that was the import of the Griffin case. I -- I have been wrestling with that principle, Your Honor, since Adamson versus California 18 years before when Justice Black in a very illuminating dissent and very wonderful dissent that's read in all the law schools today stated the position that this Court has now taken in Griffin versus California. In Adamson, we started 18 years ago where the comment of the prosecutor --
Byron R. White: Well, the state doesn't argue with that here that there was a violation of Griffin, does it?
Morris Lavine: No, it does not argue that there was a violation of Griffin. It argues whether it was harmless error. Now, --
Byron R. White: And you're arguing that this error would harm your client because it really was the major ingredient in the evidence?
Morris Lavine: Yes, Your Honor. I argue two possessions in connection with this matter. First, I argue that being a constitutional violation, being a violation of a constitutional right that it cannot be deemed to be harmless error that this Court has never said in any of its cases that error of this -- of a constitutional proportion was harmless error. Now, I go back to your earlier --
Hugo L. Black: Do you mean Mr. Lavine that as I understandyou to it defendant, you're arguing that it can never be harmless error even though it was a very, very, very slight incontestable point.
Morris Lavine: Well, you're --
Hugo L. Black: To that, are you going that extent?
Morris Lavine: I'm arguing if those are the constitutional point that it's not a slight incontestable point.
Hugo L. Black: You argue that any time it's shown that that is done, can make any difference of power?
Morris Lavine: No.
Hugo L. Black: Isolated now, are you?
Morris Lavine: No. I'm arguing that if it's a constitutional violation it can't be an isolated point.
Hugo L. Black: Well, that's what I'm saying.
Morris Lavine: That is right Your Honor. If it --
Hugo L. Black: And it can't be held to be an isolated under the requirement even though anybody could look at it and tell beyond any shadow of doubt that it was harmed.
Morris Lavine: Well, I can't define it on the basis on what you're defining harmless error, Your Honor.
Hugo L. Black: Just because you say that any violation of a constitutional right without regard to its significant indication, that's what I'm trying to get in. With that regard to which significant in a case has to be held harmful.
Morris Lavine: It does not -- it cannot be --
Hugo L. Black: It has to be held harmful.
Morris Lavine: Harmful, I --
Hugo L. Black: It cannot be held harmful.
Morris Lavine: May I answer Your Honor in the language of Bollenbach case and to state my position?
Hugo L. Black: I thought that you wouldn't answer it. You've just got to answer from reading what somebody said. I don't care the evidence.
Morris Lavine: Well, I do but I want to answer your --
Hugo L. Black: You don't have to argue --
Morris Lavine: Well, my argument is that error of a constitutional proportion I have to argue with you on this point Justice Black because I can't --
Hugo L. Black: You don't have to argue with me at all. I just want to find out if that's what you're arguing.
Morris Lavine: I'm arguing that errors of a constitutional proportion cannot be slight, trifling or infinite testable or de minimis lex that argue -- that errors of a -- for instance denial of the right of counsel is a constitutional right. We can't say that the mere fact that one who doesn't have counsel is so slight if he has --
Hugo L. Black: But it's not this case?
Morris Lavine: That's not this case but I'm citing various constitutional principles. I am saying I cannot see any case where a defendant refuses to testify on constitutional ground can be a slight error where he stands on the Fifth Amendment and the Fourteenth Amendment. I say that --
Hugo L. Black: Well, I'm not joining issue with you, I just trying to see if that what you're arguing.
Morris Lavine: I'm can't see -- I'm not arguing that Your Honor. I'm arguing --
Hugo L. Black: You are not arguing.
Morris Lavine: I'm arguing that error of a constitutional side can never be so slight or trifling.
Hugo L. Black: That's what I thought you said.
Morris Lavine: Yes, that you can overlook it and I can't find any case as I have found where this Court has held where there has been a constitutional violation that it is slight or trifling. Now, I would like to --
William J. Brennan, Jr.: That's just another way of saying that if there's constitutional error in the trial, it can never be harmless.
Morris Lavine: That's right.
William J. Brennan, Jr.: There must be a reversal?
Morris Lavine: That is right, Your Honor. That's my position. Now, in Bollenbach versus United States back in 1945 a jury was out seven hours and the judge called the jury back in to give them another instruction. This is 326 U.S. of page 607, the Court there after calling the jury back gave them further instructions which it was held it was erroneous. The evidence apparently from the standpoint of the Government and possibly from the standpoint of the Court was regarded as the overwhelming, but in any event, this Court laid down what is my position here in respect to the situation as to what maybe called harmless error. The Government argues that the sting of error is extracted because there was proof other than the erroneous presumption on the issue of Bollenbach's participation and I'm skipping some things that would be along jump at guessing to be confident that the jury did not rely on the erroneous presumption. The charge should not be misleading, legal presumptions involve settled conception to which not even judges always bring clear understandingly. We cannot treat the manifest misdirection in the circumstances of this case as one of those technical errors which do not affect the substantial rights of the parties and must be disregarded. All law is technical if viewed solely from the concern for punishing crime without hitting the mode which is accomplished, the technical errors against which Congress protected jury verdicts are of a kind which led some judges to trivialize law by giving all legal prescriptions equal potency, see Taft and so forth. Deviations from formal correctness do not touch the substance of the standards by which guilt is determined in our Court and under these that Congress rendered harmless citing Bruno versus United States and Wyler versus United States presuming to often that all errors to be prejudicial the judicial pendulum need not swing to presume all errors to be harmless if only the appellate court is left in doubt without doubt that one who claims that correct due process is after all guilty. In view of the place of importance, the trial by jury has in our bill of rights. It is not to be supposed that Congress intended to substitute the belief of appellate judges in the guilt of an accused. However, justifiably engendered by the dead record for ascertainment of guilt by a jury under appropriate judicial guidance however cumbersome that process may be and the judgment in that case was reversed. Now, the Court there laid down the standard that I think is the standard that I'm urging on this Court in the question of harmless error. Now, in Bruno versus United States, in 308 U.S. October term 1939, page 293, the Court there said a subsidiary question remains for determination. It derives from the act of February 26, 1919 whereby appellate courts are on their duty in criminal as well as civil cases to regard that -- disregard technical errors, defects or exceptions which do not affect the substantial right to the party. Is this regard of the right which Congress came to Bruno an error? The commission of which we may disregard we hold not. It would be idle to predetermine the scope of such remedial provisions of Section 391 by anticipating the myriad varieties of rulings made in trial in attempting to abstract include definitions of technical errors. Suffice to this to indicate when every student behind the act of February 26, 1919 knows that act was intended to prevent matters concerned which mere etiquette of trials with the formalities and minutiae or procedure from touching the merits of a verdict of a different order of importance is the right of an accused to insist on the privilege which Congress has given him and to paraphrase that expression of a different order of importance is the right of an accused to insist on the privilege which the Constitution of the United States that has given to him. To suggest -- to the suggested benefits a defendant fails to take the stand not to have the attention of the jury directly to that effect, it suffices to say that however difficult it maybe to exercise enlightened self interest, the accused should be allowed to make his own choice when an Act of Congress authorizes him to choose and now I paraphrase that again and say that the Constitution of the United States has authorized him to choose and whether this urged that it is a psychologically impossibility not to have a presumption rights of the minds of jurors against an accused who fail to testify to sure the answer is that Congress legislated on the contrary assumption and not without support of experience. It was for Congress to decide whether it was deemed legally sufficient what was psychologically futile. Certainly, despite the vast accumulation of psychological data, we have not yet obtain that servitude about the human mind which would justify us in disregarding the will of Congress by dogmatic assumption that jurors have probably is -- properly admonished either could nor would he, the destructions of the trial court that the failure of the accused to be a witness in his own cause shall not create any presumption against him. And there, the Court held that if the accused asked for that instruction he should be given and they hold that that is a substantial question which ought to be presented. Now, in the case of Wyler versus United States, Your Honors will recall that was a case involving the question of one or two witnesses in a perjury case and the Court there held that the two witness rule was still required, that case is reported in 323 U.S, at page 600 -- reading from page 611. It is argued that this error did not prejudice the defendant. We cannot say that it did not. The jury convicted without being instructed that more than the testimony with single witness was required to justify their verdict. This was no mere technical error relating to the formalities and minutiae of trial. This is what I am urging Justice Black in answer to your question that there maybe formalities in minutiae in connection with the trial that would be excused but if it was a constitutional violation as all of your cases we have held on this right of self-incrimination it is not the mere technical error. We are not authorized to look at the printed record result conflicting evidence and reached the conclusion that the error was harmless because we think that the defendant was guilty that would be to substitute of our judgment or that of the jury. And under our system of justice, juries alone have been entrusted with that responsibility and I may say the same as in the State of California under Article 1, Section 7 as it existed the time of this case defendant was entitled to a jury trial, had a jury trial. It's not for the appellate court or the Supreme Court of California or even this Court to substitute its judgment or the judgment of the trial jurors who see the witnesses and hear the witnesses nor are we compelled to conclude that this error was harmless because of actions of another case which they cited. Now, that this case was decided on the basis of its own facts. Now, one other case that Your Honors decided recently was the case of Stewart versus United States and reported in 366 U.S. at page 1. In that case, the petitioner was tried three times in the federal court for murder. The first two trials, he didn't take the witness stand, the third trial he did and he was asked the question that he have not taken the witness stand on the earlier two trials. Your Honor, Mr. Justice Black wrote the reversal in that case and held that that was not harmless error. You held that it was error to ask that question which raised the question of the defendant not having taken the witness stand. And so I submit to Your Honors that --
Hugo L. Black: Was there any question of harmless error in this case?
Morris Lavine: Yes. Page 9 of the printed opinion, the Government's final contention is that the use of error was prejudicial, the conviction should be allowed to stand on the theory that the error was not sufficiently prejudicial to warrant the granting of a mistrial and the defense made no request for cautionary instruction. So, quoting your own language Justice Black --
Hugo L. Black: What -- what else was said?
Morris Lavine: Well, what else, Your Honor?
Hugo L. Black: What else was said?
Morris Lavine: I'm quoting it Your Honor.
Hugo L. Black: I know it but you stopped before you said it.
Morris Lavine: Oh, I'm about to go on with the rest of the opinion as you reversed it.
Hugo L. Black: Yes.
Morris Lavine: Yes, Your Honor. One answer to this argument is to be found in the Government's own brief for in its argument regarding the possibility that the jury may not have been aware of the improper question. The Government stresses the fact that the question was not emphasized by any reference to what in the instructions to the jury. During the course of this argument, the Government expressly recognizes that the danger of the situation would've been increased by a cautionary instruction in that such of instruction would have again brought the jury's attention to petitioner's prior failure to testify. Plainly, the defense was under no such, no obligation to take such a risk. The motion for mistrial was entirely appropriate and indeed necessary to protect the interest of petitioner. We, thus, conclude that this conviction and sentence against petitioner cannot stand. In -- in doing so, we agree with the point made by the Government in its brief that it is regrettable that the concurrent finding of 36 jurors are not sufficiently final to terminate a case but under our system a man is entitled to the finding of 12 jurors on evidence fairly and properly presented to them. Petitioner may not be deprived his right until that right is accorded him. That right was denied here by the prosecutor's improper question. So, I submit here --
Hugo L. Black: That case indicated, did it not? We didn't think it whether it's harmless -- that we didn't make error was harmless.
Morris Lavine: That -- that is correct, Your Honor. And Your Honor, there's been no error -- no case as I --
Hugo L. Black: Why should we have argued it anyway if it's settled in the fact that the error was made? Why should we have argued to show? Why it was -- couldn't be held harmless?
Morris Lavine: Well, if Your Honor please, that was one of the points that the Government raised in the case. You should, it had to be argued because Your Honors granted certiorari --
Hugo L. Black: -- defended however and you further than to say that it happened.
Morris Lavine: That is correct. Now, if Your Honor pleases, I haven't been able to find any case in this Court where Your Honor has pointed to any case or where any decision existed I have been able to find in this Court where there's been a violation of a constitutional proportion where this Court has held that that is harmless error. I have cited about seven cases in my brief involving particularly confessions and other constitutional violation. But I have been unable to find any of which says that the failure that there's any situation which -- in which the right of self-incrimination has been brought in that is to have this Court has held to be harmless and the cases I have cited, I think are in support of that position. I take the position that the harmless error rule was not meant to overlook violations of constitutional magnitude and I think that in this case looking at this record and the numerous comments by the prosecutor as planning the lack of proof that the state have with the comments of the prosecutor constituted the error highly prejudicial and certainly not harmless in this case. So, my argument is two-fold. First, that any violation of Griffin, any violation of failure to take the comment on the failure of a defendant take the witness stand is itself error that requires that it's a constitutional magnitude and therefore does not come within the harmless error rule but if it does, the repeated and constant comments on this case make the error of such magnitude that it is not harmless in this case and it's very highly prejudicial.
Earl Warren: Did the judge instruct the jury on this issue?
Morris Lavine: Yes, he did Your Honor.
Earl Warren: What did he say?
Morris Lavine: Well, he instructed in the language of the Adamson case, Your Honor. Your Honor, the page -- it's referred to in page 17 of my closing brief and it's referred to in reporter's transcript page 2163 that among the inferences that may reasonably be drawn there from those unfavorable to the defendant are the more probable. Now, that's the abbreviation of the entire instruction Your Honor but the instruction is in the language of the prior Adamson case which is the one with collegiate standard previously standard instructions prior to the Adamson case. And I will possibly look it up during the argument of my opponent to give you the full text of it. Thank you.
Arlo E. Smith: How much time do I have left Your Honor?
Earl Warren: Mr. Smith.
Arlo E. Smith: Mr. Chief Justice, may it please the Court. Of course, to properly concede that there was a comment and instruction that comment with reference to both defendants was in violation of the Griffin doctrine. However, before I go into the matter any detail, I feel that in light of the statements made here except the statement of counsel the tracking of earlier statement. I feel that we have a 3000-page record here. The brief is replete with allegations of unfairness and I would like to correct two or three impressions created by that brief. As pointed out by counsel, he is correct of the impression that the district attorney here and the trial judge deliberately violated the doctrine of the law in Griffin. This case was tried in 1963, one year before the Malloy decision came down and two years before the decision of this Court in Griffin versus California. Those comments as suggested in the Tehan case occurred in virtually every California case where the defendant did not take the witness stand. This is one of those cases. Those statements were made and the instruction was given based upon 50 years of constitutional law set down in Twine and in Adamson of the decisions of this Court. Trial judge and the counsel followed the constitution of California at that time. Secondly, counsel has suggested that somehow there has been a conspiracy or a fraud down the part of the district attorney here to prevent the defendant Chapman from taking the witness stand.
Abe Fortas: Excuse me sir for a moment. Excuse me.
Arlo E. Smith: Yes.
Abe Fortas: On your first part of view has -- do you suggest in practice in the California has changed?
Arlo E. Smith: Oh, absolutely. If this happened today, we will have entirely different case. I suggest it would not be here.
Abe Fortas: What would you do today?
Arlo E. Smith: Today, Your Honor, I -- there would be no comment. Obviously that practice is eliminated. There would normally be an instruction akin to that required in federal practice.
Abe Fortas: In other words, you would follow --
Arlo E. Smith: And if this happen today, I think that under California practice we would have a -- the case would not be here. Not because there was no harm but before a different state policy that under the case that you've cited here, the case of People versus Burnett that deliberate and flagrant conduct of both that trial counsel, the district attorney and the judge would be misconduct and would be reversed.
Abe Fortas: So I suppose that what you got here in terms of a liable question general applicability is what like this case throws on your use of the harmless error provision in the constitution.
Arlo E. Smith: Well, the harmless --
Speaker: Suppose what you are arguing here if I understand it, there's no evidence in this record if the California courts were using their harmless error rule to avoid or frustrate the federal constitutional right, isn't that what you're arguing?
Arlo E. Smith: But -- yes, I wish to make that argument. I was simply arguing that this point that there was no misconduct that but that is an argument that I do seek to pursue, the allegation has been made here that indeed the harmless error rule has been applied deliberately by the California courts to avoid the operation of Griffin. We have cited in our briefs cases where the District Courts of Appeal or intermediate appellate courts in fact have affirmed convictions where commenting in violation of Griffin occur. Likewise, we have brought to your attention some dozen cases where the California Courts have reversed those convictions because it found the comment in the context of the entire case to be a miscarriage of justice, to be a -- to be prejudicial, to be harmful to violate our harmless error rule. Likewise, the California Supreme Court has granted here in cases where the intermediate appellate courts have found the comment to be harmless and affirmed. So, in fact there was no deliberate use of the harmful error rule to undercut the decisions of this Court. But returning, if I may, to the general allegation that's been made here in reference to the conspiracy to keep the defendant Chapman on the stand the allegations that somehow the -- she was denied counsel. There was a denial of the speedy trial. Let me correct that record before we discuss the real questions here. Under California practice, award was based upon a complaint. Mrs. Chapman was arrested in St. Joseph, Missouri October 26, 1962. She was brought back to California, the record shows and we cited it, October 30, 1962. The record reflects that she was arraigned in California the very next day, October 31 or she was advised of her right to counsel of all the rights. A counsel was then appointed, immediately appointed. Not a month later as suggested by counsel. And the same sequence occurred in reference to the defendant Teale when he was brought back from Louisiana and of course after the initial arraignment instead of proceeding. By way of information, that case was brought to the grand jury and the indictment was then brought. The defendants were re-arraigned on November 16, counsel was again appointed to defend them in that indictment, the very same counsel that had been appointed on the earlier dates. Finally, there's an allegation here that the defendant -- that the prosecutor here kept the defendant Chapman from taking the stand by virtue of the delays, by virtue of -- this was part of his tactic. But I think that if you examine this record you will see very plainly that the trial dates, the times and the trial dates were agreed to by her counsel that it was suggested shortly before the first trial date that there was a conflict that the public between the two defendants and the public defendant could not properly represent both. The Court immediately appointed separate counsel for Mrs. Chapman. Shortly thereafter and a new trial date was again selected about a month forward, the defendant Chapman filed an affidavit alleging in demanding in support of a motion for a separate trial alleging that the public defender had special knowledge which could be used in cross examining her. The judge then denied the motion for a separate trial and appointed new counsel for the defendant Teale. The matter was then delayed for another month in order that that counsel could properly prepare and defend the case. Finally, there's an allegation that somehow made here again in argument that the prosecutor sought to get her statement which she said -- he said was taken without counsel. The record reflects in fact that what he is referring to appears to be statement which the defendant introduced via the testimony of a psychiatrist and I think important to this entire case is the defense and this goes to the defense of Mrs. Chapman. Mrs. Chapman's defense was from the very outset in this case that she was present in all times, that she did not, however, have the specific intent. Now, the -- in California or practices for the prosecutor to make an opening statement present his testimony, the defense counsel to make his opening statement and to present his testimony. However, in this case, after the prosecutor had made his opening statement, defense counsel requested opportunity to make his opening statement out of term and the judge granted that. He then stated as his defense in fact in admission of her presence at the scene of the robbery, that kidnapping and the murder. The defense then established through that the psychiatrist not Dr. Winkler but Dr. Sherman, the defense psychiatrist that she did not or possibly had a hysterical alcoholic blackout, disassociated status the psychiatrist say that she could not formulate the specific intent to commit these crimes but as a part of that basis for the psychiatrist's opinion, the psychiatrist testifies both as to what she had told them and over objection by the prosecution. Defense counsel read a statement which she gave or read great portions of the statement which he had previously given to the deputy district attorney. There is no foundation. The statement was at no time offered by the prosecution. There is nothing in the record as to the background for the taking of the statement.
Byron R. White: But what the --
Arlo E. Smith: Doctor Winkler was called -- well, there's an allegation here that this was a conspiracy and that in fact there's a ball of statement made that the calling of Dr. Winkler and the presenting of his testimony violates Griffin. Dr. Winkler was simply called then in rebuttal. And further I think it is important of course in any event that we must examine the entire record, the entire case and not merely as counsel for petitioner has asserted that we look at the -- only at the statements made here, the instruction given or the comment made and determined from that whether or not there was harm.
Abe Fortas: Why do you say that we look at the whole case is that because your theory that the record as a whole contains proof of guilt that the error was harmless?
Arlo E. Smith: No, Your Honor. That is not what the (Voice Overlap) --
Abe Fortas: What is your theory?
Arlo E. Smith: That is not the rule in California. You must examine the entire cause. You must look at the error in the context of the entire cause.
Abe Fortas: What purpose then?
Arlo E. Smith: To determine whether or not there was harm to this particular defense.
Abe Fortas: And what's your standard determine whether there is harm, is that whether they -- in our judgment the defendant was guilty or whether excluding this or that may mean rest of the record shows overwhelming evidence of guilt and we can't conceive the jury arriving at different result or what?
Arlo E. Smith: No. The California constitution speaks in terms of examination of the entire record to determine whether or not there was a miscarriage of justice. However, the California Supreme Court in the case of People versus Watson, set down the rule that what this means is that we must determine whether or not it is reasonably probable that the errors complained of would not have led to a different result.
Byron R. White: Well, why do you suppose the -- if the evidence is so clear of guilt in these cases and why do you suppose the prosecutor thinks he has to comment? Statute doesn't require him to do it.
Arlo E. Smith: Well, I think that the answer is --
Byron R. White: And here -- he just says well, it's overwhelming evidence but I'll just show you a few comments that it lays here.
Arlo E. Smith: Well, if this Court suggested in Tehan, this can correct me so that this has happened virtually in every case. It becomes a courtroom dramatics. It's the dramatic impact that here we've established --
Byron R. White: Well, I don't know, why do you think prosecutor is really -- is going to hurt that case they wouldn't do it it's because --
Arlo E. Smith: Of course. Of course it doesn't hurt that case and there's no -- it doesn't know in that sense.
Byron R. White: They wouldn't do it just neutrally, would they?
Arlo E. Smith: They might although I suggest that they -- that you're correct that they believe that it has some effect --
Byron R. White: So, do you think it's going to help them a little bit?
Arlo E. Smith: Certainly. Certainly, but that does not mean that in fact that helps me if they need it on the case.
Byron R. White: We know better than the prosecutor.
Arlo E. Smith: Yes, you -- many your opinion suggests that you do.
Byron R. White: And you're right.
Hugo L. Black: Now, I would like you to --
Arlo E. Smith: I would now like --
Hugo L. Black: -- to get to the merits --
Arlo E. Smith: Yes, I'd like to turn to the --
Hugo L. Black: May I just ask you this one question?
Arlo E. Smith: Yes.
Hugo L. Black: If what he read, did that take place?
Arlo E. Smith: Oh, yes.
Hugo L. Black: Took place thus that way?
Arlo E. Smith: Well, I did not follow the --
Hugo L. Black: Where in fact it told, the prosecutor told jury that she had view to testify and she is the only one could and they had a right to find out that from that she was guilty.
Arlo E. Smith: No, but the --
Hugo L. Black: If that is something who it was, didn't he?
Arlo E. Smith: I would make this distinction that the --
Hugo L. Black: I would tell you --
Arlo E. Smith: The statement made --
Hugo L. Black: -- what is your reason for saying that that was harmless?
Arlo E. Smith: Our reason for saying --
Hugo L. Black: I would like to say what that Mr. Justice Fortas said. What is it? Do you say that if that happened, I would think for any reasonable person to know that was harmless to the defendant then what do you say then to keep it from being harmless?
Arlo E. Smith: No, I say that two things. First of all, of course the judge did instruct them and that this is an influence --
Hugo L. Black: Did he instruct --
Arlo E. Smith: That there was --
Hugo L. Black: -- but hard, isn't it?
Arlo E. Smith: Pe -- that the people must prove their case beyond the reasonable doubt that there was no presumption of guilt as a result of the failure of the defendants to testify. As far as in the second part of it, of course it is our contention you must examine the particular error in the light of everything that happened here. In other words, the point that I was making I need not repeat now earlier was that here we have this particular defense of the defendant Chapman for example. Really, the defense was that she blocked out, not that she wasn't there --
Hugo L. Black: Suppose that was the defense, but why and how can you say it was harmless error for all the case to decide on the basis that the jury had a right to infer her guilt from the facts that she didn't tell about it.
Arlo E. Smith: No, there was nothing -- you cannot infer her guilt. You can simply, in a given set of circumstances where the defendant might have had some information, the jury where they can draw private different inferences may take the inference against that particular -- that defendant who did not testify but as to a particular item of proof and not that you can infer her guilt.
Hugo L. Black: They violated the Griffin case, didn't they?
Arlo E. Smith: Oh, yes. But and not that you can infer her guilt, not that you -- that it's proof of presumption of guilt but simply has related to a particular --
Hugo L. Black: Very strong mail in the time the --
Arlo E. Smith: Piece of evidence. As I said here, with the defense really is block out, the fact that the prosecutor commented that she could explain why she purchased those guns --
Hugo L. Black: Probably, she couldn't.
Arlo E. Smith: Certainly --
Hugo L. Black: But she had a right not to.
Arlo E. Smith: But this -- certainly she had a right not to but this didn't have anything to do with the --
Hugo L. Black: How do you make that harmless error?
Arlo E. Smith: How do I make that harmless error?
Hugo L. Black: That's right.
Arlo E. Smith: The -- I examine the entire record and see what effect this has.
Hugo L. Black: Whether she is guilty?
Arlo E. Smith: No. That's not the mere test. Not simply that she's guilty but whether or not whether she reasonably probable that the error complained of would have brought about the different result.
Hugo L. Black: Brought about finding of guilty?
Arlo E. Smith: Well, it's not simply weighing of -- it's not simply the weighing of evidence of guilt but if in fact that error assisted in bringing about that verdict to that result.
Hugo L. Black: But are you arguing that didn't assist in bringing about the verdict of guilty?
Arlo E. Smith: I'm suggesting that it did not -- not reasonably probable that it had any. I'm arguing that there is no reasonable probability that it affected the trial in light of the entire evidence in this case, in light of the entire proceeding for defense --
Hugo L. Black: Had no influence on the jurors.
Arlo E. Smith: Well, of course that bring us back to another argument and it is been suggested in the dissents in the earlier cases that there is some question as to the influence of the jury. The fact that she did not testify and he did not testify is a fact that the jury is aware of that they're going to draw their own conclusions and the fact that we have carefully controlled --
Hugo L. Black: So that I can add the constitutional guarantee is no good.
Arlo E. Smith: Well, of course this goes back to the policies behind Griffin that then I can see but this is simply a fact that the jury is well aware of, one which they may naturally whether instructed or uninstructed where the comment is made or not are going to have in their mind or practice specifically instructs them how they must limit that fact that they can draw no presumption of guilt, that they -- that the people have the burden of proof beyond the reasonable doubt. Now, the counsel here for the petitioner draws an analogy to confession cases. They say that those cases established that you must reverse in this kind of a situation. But I think this leads us to in to the very problem that we're concerned with and that is, what is the impact of these statements as opposed to the impact of a confession. This Court has held many times that confessions are -- when introduced result in reversal has a result of the pervasive impact that it has and secondly because it impairs the very fairness of the fact finding procedure, the fairness of the trial the very reliability of the fact finding procedure. Now, the Court -- this Court, the Tehan case stated that the comment did not in fact impair the fairness of the trial, the reliability of the fact finding process and I think that --
Hugo L. Black: Has this got any evidence regarding (Inaudible) it was unconstitutional?
Arlo E. Smith: Well, there's no -- they didn't get any evidence but there's no question that was done here was in violation of the Griffin rule. No question about that. But as you said in Tehan, determine the question of retroactivity this did not impair the reliability of the fact finding processes the trial court. It's our contention that the same kind of analogy can and must be draw in determining whether a particular constitutional defect is to be subjected to the harmless error rule. It's our contention that harmless error rule is applicable to all errors constitutional or not except those errors that impair the fairness of the trial that go to the reliability of the fact finding processes.
Potter Stewart: If you're correct that there is room for a higher harmless error rule in respect to at least some constitutional errors, doesn't necessarily follow that each state should be free to apply its own version of its harmless error rule or should be -- or should that -- should the standard be a federal standard?
Arlo E. Smith: Well, we take the position that this is a question of state law and not a constitutional law. We take the position that you must examine the policies of the rule that the reason for the rule and that this is an area where federalism properly has applied that the question of whether or not it is harmful is not a federal question --
Potter Stewart: Well, let's say --
Arlo E. Smith: -- except it we take the case like Louisville versus Thompson.
Potter Stewart: Well, I'm not talking about but I was talking about the other side of the coin at least in a theoretical case. Let say that a state said, “Well, in this state our harmless error rule is that we think the man could possibly have been found guilty without the introduction of this evidence. We all rule that its introduction was harmless error.” But we in the -- if the error were one of the federal constitutional and connections that we be bound by that kind of a harmless error rule assuming there is room for harmless error rule at all?
Arlo E. Smith: Well, as long as the -- it's our position that is long as the state standard, the state rule protects what we call fairness that to say, protects those rights that ensure of fair trial those rights that are related to the reliability of the fact finding process that that states must reverse but as to any other error then it can properly apply its own standard as a question of state law and again except in a extreme case where there's no reasonable relationship between the application of that rule to the facts of that case.
Abe Fortas: What happened that day --
Arlo E. Smith: The harm involved --
Abe Fortas: Suppose one of your prosecutors and one of the judges made a mistake and made the same comments, would you still think that California would consider their harmless error?
Arlo E. Smith: No, Your Honor. If that case -- this case were tried yesterday and were then presented in the California Supreme Court today, it would be reversed --
Abe Fortas: But why? Why if there was harmless error --
Arlo E. Smith: It would be --
Abe Fortas: -- if there was harmless error before why isn't there harmless error now?
Arlo E. Smith: Because under California law, there are other factors because if these were done today, it would not be merely a violation of the Griffin doctrine. It would be deliberate flagrant misconduct.
Abe Fortas: So you say --
Arlo E. Smith: The trial judge in the prosecutor and under Burnett would be reversed.
Abe Fortas: Those words disturbed me but suppose exactly the same thing happens based on the question of (Voice Overlap) harmless error, doesn't the harmless error today was harmless error then or vice versa?
Arlo E. Smith: But what I'm saying is that the -- there as a matter of state policy we are looking -- we're looking beyond harm really.
Earl Warren: We'll recess now, Mr. Smith.


Earl Warren: - 490, John L. Brady, petitioner versus Maryland. Mr. Jamison, you may continue your argument.
Thomas W. Jamison, III: Mr. Chief Justice, may it please the Court. Yesterday before the recess, I had sought to establish two facts which I believe must be considered during the study of this case. First of all, the statement of the confederate, Boblit, contains nothing, which would exculpate Brady from guilt of first-degree murder under the Maryland felony murder statute. It merely contains the assertion or the admission that Boblit himself actually strangled the victim, but it places Brady at the scene of the crime as the man who knew Brooks, as the man who said, “We have got to kill Brooks,” as the man who said “We've have got to strangle Brooks.” Secondly, the attorney representing John Brady determined before the trial even began that the real issue in the trial was not guilt or innocence, but penalty for murder in the first-degree. In other words, he sought to persuade the jury to bring in a verdict of guilty of first-degree murder without capital punishment. Now, at the trial of the case, Brady took the stand and again Brady admitted as he had in his statements, which he had given to the police prior to his trial, he again admitted he had participated in the robbery, but denied he had actually committed the homicide. In his --
Potter Stewart: Mr. Jamison what happens in Maryland if a man pleads guilty to the first-degree murder or doesn't that really happen?
Thomas W. Jamison, III: Mr. Justice Stewart, if a man pleads guilty to first-degree murder then the court would have the option as to whether or not to sentence him to death or to sentence him to life imprisonment.
Potter Stewart: And he doesn't get a jury trial on that punishment?
Thomas W. Jamison, III: He would not have a jury trial.
Potter Stewart: This is a function of a single judge, is that it?
Thomas W. Jamison, III: That's correct Your Honor, it's merely a question of sentence. The closing argument or at least the -- the closing argument to the jury by a counsel for Brady consisted of a confession of guilt of first-degree murder. Now when Brady again went to court himself to testify at the post-conviction hearing before the Circuit Court for Anne Arundel County, he again admitted his guilt of first degree murder. He admitted that he was there and he participated in the robbery. He admitted the facts which constitute first-degree murder on the statute. So --
Earl Warren: And also that the murder was committed at the time of the robbery, not later, is that correct, because I did notice some place along the line here where it was contended that the murder was detached from the robbery itself?
Thomas W. Jamison, III: I believe Mr. Chief Justice that point was raised in Brady's appeal from his conviction.
Earl Warren: But not at the trial, I think you answered that yesterday?
Thomas W. Jamison, III: I stand corrected Mr. Chief Justice, Mr. Bamberger reminds me of Boblit's appeal that actually raised that point. They were tried -- they were argued together, the two appeals were tried under one argument.
Earl Warren: I see and Brady did not raise it at all?
Thomas W. Jamison, III: Apparently not Your Honor.
Earl Warren: Yes.
Thomas W. Jamison, III: But at any rate this point was brought up at the post-conviction hearing. Now throughout the other proceedings in this case, it had never been controverted that Brady has always admitted his presence at the trial -- at the robbery and his participation in the robbery and I think it is also important to remember that there was a judicial confession in effect at his trial when Brady admitted his presence and his participation. Now, in view of these facts and the fact that the Court of Appeals in its opinion states that nothing in -- well, this withheld confession this appears on page 52 of the record, nothing in it could have reduced the appellant Brady's offense below murder in the first degree.
Earl Warren: May, I ask you just one more thing before you get into another phase of the case? On page 26, item 25 that we talked about yesterday somewhat, would you mind telling me when that statement was made by counsel for the defendant and in want context please?
Thomas W. Jamison, III: It was made prior to the trial at a conference in the judge's chambers with counsel for a coconspirator or the confederate and they were discussing various aspects such as we have a jury trial, which defendant will be tried first and so forth and at that time, Counsel for Brady said that his trial would be limited to penalty for murder in the first-degree. Now, in Maryland, the Constitution provides that the jury is the judge of the law as well as the facts. This provision has been in the Constitution of Maryland at least since 1867 I think and to my knowledge has never been applied in exactly the way it is sought to be applied in this case, but the Court of Appeals of Maryland in a recent case, Giles versus State said this. “It is the duty of a jury to decide a case according to the established rules of law.” In all frankness, I must admit that this statement was made from the other side of the coin, dealing the duty of the jury from the standpoint of the defendant other than the standpoint of the State, but I respectfully submit that the duty of the jury is the same whether it acquits the defendant or convicts him, it is nevertheless the duty of a jury to decide the case according to the established rules of the law, in spite of this constitutional provision. Otherwise, we would have nothing but chaos.
William J. Brennan, Jr.: [Inaudible]
Thomas W. Jamison, III: Mr. Justice Brennan, it is the State of Maryland's position that the trial judge charge was an error that he went further than the law required.
William J. Brennan, Jr.: [Inaudible]
Thomas W. Jamison, III: No prep just whatsoever.
William J. Brennan, Jr.: [Inaudible]
Thomas W. Jamison, III: Yes Your Honor. That's exactly what they said, I think in their opinions, what they held in their opinion.
William J. Brennan, Jr.: [Inaudible]
Thomas W. Jamison, III: Giles was decided after this case and I might say that the Giles case, there is a petition for certiorari pending at the present time.
William J. Brennan, Jr.: [Inaudible]
Thomas W. Jamison, III: You do.
Hugo L. Black: I don't quite understand, you say that the Constitution says one thing and the law says another.
Thomas W. Jamison, III: No, Mr. Justice Black. I'm saying that the Court of Appeals has said that it is the duty of a jury to decide a case according to the established rules of law.
Hugo L. Black: But what does the Constitution say?
Thomas W. Jamison, III: The Constitution says, the jury is the judge of the law as one of the fact.
Hugo L. Black: Well, do you think that Constitution is unconstitutional?
Thomas W. Jamison, III: No, I do not. What I'm saying though is that although the jury has the right to decide the law, they have the duty to decide the law according to their conscience, according to reason, according to their best efforts and not according to some whim or fancy. They have the same duty to decide the law as the trial judge would have to interpret the law according to their best ability and not to ignore the law, or disregard the law, or twist the law for some purpose or other.
Speaker: What purpose – what effect it would give it to the provision of the Constitution? [Inaudible]
Thomas W. Jamison, III: That is correct.
Speaker: Is that into your Constitution? [Inaudible] something duty of the jury, power of the jury to go beyond what it already had [Inaudible]
Thomas W. Jamison, III: It is my opinion that it adds very little to the power of a jury or to the -- what it would ordinarily be the case in other jurisdictions. It maybe that when the constitutional prevision was enacted, the idea was to give a great scope of authority to the jury, but I believe that in view of the two recent cases, the Giles case and the Brady case, the Court of Appeals has indicated that it feels there was a very limited scope to this provision.
Hugo L. Black: Well what you in effect saying is that they have changed your Constitution, isn't it?
Thomas W. Jamison, III: They have construed the Constitution, that all.
Hugo L. Black: It seemed to mean contrary to what it seems to mean on its face?
Thomas W. Jamison, III: I don't believe that is correct. I think the jury has the right to interpret the law and if it makes a mistake no one can again say it.
William J. Brennan, Jr.: [Inaudible]
Thomas W. Jamison, III: I think that is the law, now it's true --
Hugo L. Black: Well another thing to find out is that if we ought to go on the basis of your argument that the Constitution said, that it means what it says, that means now, has a less restricted meaning by reason of the recent opinion of the Court?
Thomas W. Jamison, III: Yes I believe that is my position. I believe that the Court of Appeals has indicated in the Giles case that the constitutional provision is not as broad as it might be thought to be upon reading it. I think that the jury has a duty to construe the law the same as a judge would construe a law, it was best of its ability and not whimsically.
Speaker: [Inaudible]
Thomas W. Jamison, III: There has been an effort Mr. Justice Harlan, I believe that the current session of the legislature, such a measure was introduced and it was not enacted, I don't know whether its been defeated or whether it's still pending, but I think there was one enacted, I mean introduced.
Speaker: [Inaudible]
Thomas W. Jamison, III: I honestly don't know whether there have been others or not.
Arthur J. Goldberg: [Inaudible]
Hugo L. Black: Well stated bluntly, as I understand it, you are saying the recent rule that the jury is not a judge of the law in fact in Maryland, although the Constitution says it is?
Thomas W. Jamison, III: No Mr. Justice Black, I don't say that. I'm merely saying that there is not the distinction between the situation in Maryland and situation in other states which would appear on the face of the Maryland Constitution. The jury is the judge of the law, but they have a duty to judge the law conscientiously in good faith, sincerely and legitimately and not whimsically, and if they do --
Hugo L. Black: What's the remedy if they do not?
Thomas W. Jamison, III: We have no remedy. If they act according to whim and caprice and acquit the defendant, the defendant is acquitted, and there is no remedy. They have the power --
Hugo L. Black: Same as the general verdict?
Thomas W. Jamison, III: That is correct. So they have the power to do this and that cannot be denied, but any jury has the power to do this.
Speaker: But in a case of jury where it is operating under [Inaudible] constitutional provision, there is a presumption [Inaudible]
Thomas W. Jamison, III: I don't think that there is such a presumption under the Maryland law.
William J. Brennan, Jr.: No, but isn't the [Inaudible] I gather they don't have to be the judge of the law for judgment. It may be that they were [Inaudible]
Thomas W. Jamison, III: They do not, that is correct.
Byron R. White: You are saying that [Inaudible]
Thomas W. Jamison, III: That is our position exactly.
Byron R. White: [Inaudible]
Thomas W. Jamison, III: That is correct.
Hugo L. Black: You are saying that the Court of Appeals can tell the jury what the law is, but they can't decide what the law is, for themselves.
Thomas W. Jamison, III: I'm saying that they have --
Hugo L. Black: Maybe that's right, but I'm just -- if we have to decide this, I would want very, very, very clear reason myself for saying if the Constitution of Maryland says that the jury shall be the judge of the law and in fact that can be escaped by saying, the judge can be the judge of the law, in fact he can get it covered and that's the law they have to follow, not their own.
Thomas W. Jamison, III: No.
Hugo L. Black: That you need to follow. You were saying if you are drawing a distinction between that duty and what can do under the constitutional provision. Do you have that same thing with reference to liable in Maryland?
Thomas W. Jamison, III: To liable?
Hugo L. Black: Yeah, same provision.
Thomas W. Jamison, III: I honestly don't know Mr. Justice Black. I'm not familiar with laws of Maryland pertaining to liable.
Hugo L. Black: Many states have that and why they've had there I don't understand it, but it remained the law. It's always been held, they didn't have to follow the judge at all, when they have the duty do it. They can decide as they saw fit. I think [Inaudible], I'm not sure.
Thomas W. Jamison, III: I can't help you on that point.
Earl Warren: Mr. Jamison is it customary in Maryland in cases of this kind to instruct -- for the judge when he instructs the jury to tell them that his instructions are only advisory and they may decide the law in anyway that they desire.
Thomas W. Jamison, III: Yes, Mr. Chief Justice, it not only is customary, but I think it's mandatory.
Earl Warren: Well how do you reconcile that with what you just argued to us?
Thomas W. Jamison, III: Well I'm afraid I'm not getting my point really across as well I would like. It's a very thin distinction, I admit, but the jury does have the right under the constitution to interpret the law, to find the law if you like. All I'm saying is they've got to do it honestly, conscientiously, intelligently to the -- according to their best efforts and they cannot do it according to whim and if they do it according to the whim, then they are violating their duty to the state, to the people. Now if they do that, if they violate their duty there is no way that anybody can do anything about it.
Speaker: [Inaudible]accept it the way it should –-
Earl Warren: Aren't you confusing power and duty?
Thomas W. Jamison, III: I don't believe I am. I think I am merely relying upon what the Court of Appeals has said in the Giles case. And although they said it there in reference to the duty of the jury that it owes to the defendant. I think the same duty is owed to the state.
Speaker: [Inaudible]
Thomas W. Jamison, III: That is exactly our position. That no jury acting in good faith could possibly under the facts of this peculiar case, could possibly have rendered any verdict except guilty of first degree murder or not guilty of anything at all. But since there was a judicial confession in Court by the defendant, the jury really could not bring in a verdict of not guilty. However, the Court -- the trial judge was entitled at the trial to instruct the jury that they could bring in a verdict of guilty of first degree murder, guilty of first degree murder without capital punishment or not guilty. On the facts of the record as it stands now however, in view of all the facts and the way in which the trial was conducted, it is our position that the defendant was not denied due process of law by being given a new trial on the issue of punishment only. Since this is the sole point to which his claim of prejudice relates.
Speaker: Well I think you said yesterday that this confession [Inaudible]
Thomas W. Jamison, III: It would have been, that is correct.
Speaker: And that is not getting [Inaudible] would have done had the government said these people what the court had said they should have done and [Inaudible]
Thomas W. Jamison, III: There is no doubt about the fact that he is not -- now he had not had this confession or this statement of Boblit before a jury before he was tried.
Speaker: And he would have it if the state had not done what it did [Inaudible] if it had not been done, he would have had [Inaudible] at his trail [Inaudible]
Thomas W. Jamison, III: This is correct. Our position on that is this, that there was no prejudice, because there is nothing in the statement which could have reduced the offense below first degree murder.
Speaker: [Inaudible] jury found murder it seems to me the typical case where the jury is going to exercise their power under the law [Inaudible]
Thomas W. Jamison, III: But there is nothing in the statement which could possibly lead the jury to believe he was as an innocent bystander. The statement says that it was Brady's idea to kill him. It was Brady's idea to strangle him. Now --
Potter Stewart: And wanted to shoot him and Brady wanted to strangle him.
Thomas W. Jamison, III: That's exactly, yes. So the jury couldn't possibly get any sympathy for the man out of this statement.
Speaker: [Inaudible]
Hugo L. Black: [Inaudible] not to say it is harmless error?
Thomas W. Jamison, III: I think it was harmless error from the standpoint of guilt or innocence, but not from the standpoint of punishment. It might have persuaded the jury to recommend without capital punishment, and that is exactly the relief that he has been granted by the Court of Appeals.
Hugo L. Black: The vagaries of a jury's reasoning are beyond human understanding when you begin to try to hold that something would have been -- would have done him no good [Inaudible], but it is difficult.
Thomas W. Jamison, III: Yes it is difficult.
Potter Stewart: Does the jury rule on the admissibility of evidence?
Thomas W. Jamison, III: No Mr. Justice Stewart, if the jury in Maryland does not rule on the constitutionality of a statute, it does not rule on the admissibility of evidence and in the first instance it does not rule on the voluntariness of a confession, although after the judge plans a confession to be voluntary, then the jury in turn is on the point.
Potter Stewart: [Inaudible]
Thomas W. Jamison, III: Yes.
Potter Stewart: Is there ever any such thing as a directed verdict or a judgment notwithstanding the verdict in Maryland practice?
Thomas W. Jamison, III: Yes, there certainly is.
Potter Stewart: In civil litigation?
Thomas W. Jamison, III: Yes, that's correct, but the defendant in a criminal case has a right to move for a judgment of acquittal at the conclusion of the state's case.
Potter Stewart: Yeah, in that case the judge takes it away from the jury if he grants the motion.
Thomas W. Jamison, III: That's correct.
William J. Brennan, Jr.: [Inaudible]
Thomas W. Jamison, III: Well, I never heard it done personally, but I have heard that there have been times when a judge indicated dissatisfaction with the verdict, but this has no real legal significance.
E. Clinton Bamberger, Jr.: In one part of the state's argument the state assumes that the evidence --
Earl Warren: Mr. Bamberger before you get your main argument I'd like to ask you this question. In the event we were to affirm this judgment. In what respect would you be in a different position? If you go back on the question of punishment, then you were at the beginning of the trial and the reason I ask you that question is because of what occurred here on page 26 of the record and I think you were testifying at the time.
E. Clinton Bamberger, Jr.: No sir I was not a Trial Counsel.
Earl Warren: Oh, you were not, so counsel --
E. Clinton Bamberger, Jr.: Yeah.
Earl Warren: And it starts this way. Now do you remember participating in the conference prior to Brady's trial in Judge Michelson's office?
E. Clinton Bamberger, Jr.: Yes sir.
Earl Warren: Who was present then sir. It was Judge Michelson, Mr. Stowes, Mr. Turk, Mr. DeBoe and myself, I think that was all. I don't think the assistant state's attorney was there all day. What was discussed at that conference? Answer: quite a number of things, what we wanted to go to trial, what day we wanted to go to trial, and how we elected trial. And I recall I stated that in view of the fact that they took a jury trial, I wanted my mine first and that the case would be limited to penalty for murder in the first-degree. Well, why would it be limited to that penalty sir? Answer; because there was absolutely no justification or reasons, or rhythm, or rhyme for killing a man and both of them were at least engaged in robbery or larceny which is a felony and understanding of law if both of them involved in the felony. And there was an objection to him explaining the law and it was overruled and the witness, the counsel went on and said and both of them were in fact committing a felony, they were charged each with a greater offense and one of them committing murder which everyone of them -- it was -- would be, would automatically charge the other one with murder. And then I understand that Brady after that testified that he did participate in the robbery and the murder. Now, how or in what respect will you injured if you in fact to have his punishment only determined in the light of that approach that was made at his original trial?
E. Clinton Bamberger, Jr.: Mr. Chief Justice, I do not think we can consider this case as if the statement by Boblit, the withheld statement is the end of the evidence that we could discover or that the withheld statement is in itself the truth of what occurred. The point is that this was a statement which was the fifth of five which was a statement made after four denials of having anything to do with the murder. Now the man came so far in that statement, he still implicated Brady. At this point all interrogation of him stops. He was never again questioned by the police. He was never questioned by counsel for this defendant, and the point is where would this have led to, I don't know, I don't know. I mean the --
Earl Warren: Well, the counsel apparently knew the facts at least as he got them from his client Brady --
E. Clinton Bamberger, Jr.: Yes.
Earl Warren: And he said that the only issue was the issue of punishment because his client had clearly committed first-degree murder under any reading of the facts.
E. Clinton Bamberger, Jr.: But I can't reach into his mind, but I think that part of what he is saying there and this is my understanding of it is, that he had these arguments before the jury, he had the issue of both guilt and punishment, but on the question -- on the issue of guilt he had no evidence, no evidence outside of the denial by this man Brady himself. And so he chose rather than to put both these issues to the jury, he made a tactic, he made a choice of strategy and he decided instead of putting both these issues to the jury and maybe angering them, because I don't have very much to say about this guilt thing, I am going spread the cards on the table and I am just going to go hard on this issue of mercy and on the question of the punishment. But that's a choice that he made after he had been overreached by the state and as much as that is speculation, so I would have to speculate to say to you how the trial would have deferred, if before the trial began he had that fifth statement where the man -- you see at this point this is a statement made when the man knows that the other man is in custody and when he is told by the police that there are some discrepancies in what you said before and he comes -- he changes the story. Now he doesn't change it so far as to exonerate this man, but where might further interrogation of him by the police led, where might it have led further interrogation and investigation and a testimony of the trial by counsel for Brady, this is speculation, I don't know.
Potter Stewart: The statement we are talking about appears at page nine of the record, does it, that's the one, statement number five?
E. Clinton Bamberger, Jr.: Yes. Well that's part of it Mr. Justice Stewart, the -- that is just part of it quoted by the Trial Court in the post-conviction proceeding, but at page 39 of the record, pages 39 to 41, the entire statement is reproduced.
Potter Stewart: I see. This is the one, this is statement number five, I think.
E. Clinton Bamberger, Jr.: Yes.
Potter Stewart: Page 39.
E. Clinton Bamberger, Jr.: Dated July 9, 1958.
Hugo L. Black: What situation would you be in, if you would go back to Maryland if the Supreme Court were to hold that this confession could not be on news because of the [Inaudible].
E. Clinton Bamberger, Jr.: What position, well I think they have already put that question aside. In this case they have decided that it would admissible.
Hugo L. Black: Sometimes those things we think have settled are not [Inaudible]
E. Clinton Bamberger, Jr.: Well, [Attempt to Laughter] it would at least I think be settled at the Trial Court level.
Hugo L. Black: You wouldn't -- you might be coming in the position of having to say that some constitutional [Inaudible]
E. Clinton Bamberger, Jr.: Well there are other ways we could get the testimony in I think and the fruit of it, what is my belief then --
Hugo L. Black: You could offer the man --
E. Clinton Bamberger, Jr.: We could offer the man himself and maybe the use of that statement might lead to some other evidence which would be admissible and helpful and I don't know, but this is really the crux of our problem in this Court that there was an unconstitutional suppression or a withholding of evidence prior to a trial, and now we are only going to have half of that and we are going to have a different trial than anybody else would have and we are not going to have the trial of the Court of Appeals said we should have had. They admitted that the first trial was unfair and we should have had another trial and then they -- I assure you that the Court of Appeals of Maryland as certain as I can be or any lawyer can be of what a court decides, never meant to decide in the Brady case that it was tacking on any additional limitation to the Maryland Constitutional Provision. The best proof that I can say for that is that it was not discussed in briefs. It was not discussed at oral arguments, and in the Giles case where they was a vigorous attack on this Maryland Constitutional Provision, it was held has violating the due process clause and as violating the equal protection clause. The court went at great pains to cite the history of this constitutional provision and they cite the limitations which have been engrossed on it through the years. And there is no mention of the Brady case, nor is there any mention of any additional limitation that the Brady case put upon this constitutional provision. And the Giles case was decided in just last year 1962 and I -- there was no intention in the Brady case to change the law of Maryland that the jury has the right to judge the law in a criminal case.
Hugo L. Black: In what legal category according to your idea that the Supreme Court put its refusal to let this case be retried so that evidence could be offered on the merit.
E. Clinton Bamberger, Jr.: The only category it seems to me Your Honor is that they said this comes by post-conviction and under the post-conviction statute we have a broad area of the remedy which we may apply. I say this because in the opinion, Chief Judge Burns refers to that section of the post-conviction act, but he says also that he compares it with the rule of the court which in an ordinary criminal appeal gives it the same kind of a power to tailor the remedy. Now I think the only category that I can put John Brady in is that he is placed in a category of a man whose constitutional rights have been denied by the suppression or withholding of evidence. And who either wasn't smart enough to find it out until he had, the time for a direct appeal had expired or the state so cleverly hid it that he couldn't find it out until the time for direct appeal had expired and so he is forced to come up by the post-conviction remedy.
Hugo L. Black: Why have -- they did that on the ground of harmless error? As I see it, what they have said is that, he is not entitled to this rather new trial, if you are correct in saying he is denied his constitutional right, but it would have done no good in that issue because we stated as a matter of law that on the facts here stated, he was guilty of murder in the first degree anyhow?
E. Clinton Bamberger, Jr.: Yes sir, but then that's -- the basic error there is that I don't think that the Court of Appeals of Maryland meant to say that the jury in Maryland is no longer going to have the power to judge the law in a criminal case and in effect what they've done is direct the verdict of guilt of first-degree murder in this particular case.
Byron R. White: [Inaudible]
E. Clinton Bamberger, Jr.: Yes sir, they have a duty to follow their oath as jurors, but part of the --
Byron R. White: [Inaudible]
E. Clinton Bamberger, Jr.: They have a duty not to depart from the law, but what is the law, they have the right to define the law.
Byron R. White: [Inaudible]
E. Clinton Bamberger, Jr.: More than the power they have the right.
Byron R. White: [Inaudible]
E. Clinton Bamberger, Jr.: I think they have a duty to follow that clear rule of law, but they also have the duty to follow the -- to exercise the right that they have to judge the law and there maybe -- I can, I could --
Byron R. White: You would say that [Inaudible]
E. Clinton Bamberger, Jr.: I think if a jury --
Byron R. White: [Inaudible]
E. Clinton Bamberger, Jr.: Yes, Mr. Justice White, I think if a jury came out of the jury room and they said, well we really didn’t think, we don’t think that the law ought to be this, but the judge told us it was and all 12 of us agreed that we wouldn’t want the law to be that, and we don’t really think it is, but we were in a civil case last week and the judge told us we were bound by the law. I think they would then have violated their duty to judge the law.
Byron R. White: [Inaudible]
E. Clinton Bamberger, Jr.: He has a constitutional right to have a jury exercise its right to judge the law. I would put it that way. And every other defendant will be tried on both guilt and punishment before that kind of a jury, but this man won’t have that kind of a fair trial. The Court of Appeals said he didn’t have it on the issue of guilt and they said he won’t have it, and this is how he set aside.
Hugo L. Black: I want to ask you a question, based on the assumption that the case was sent back for a closed trial on both issues and this precise confession was offered, which is held admissible, that the judge charged the jury, I charge you as a matter of law, could he charge you? I charge you as a matter of law that this confession shows that this defendant Brady is guilty of murder in the first degree and it is your duty so define, will he do that?
E. Clinton Bamberger, Jr.: He may not do that?
Hugo L. Black: Why?
E. Clinton Bamberger, Jr.: Because his instructions may only be advisory. He must instruct him that his instructions are advisory, he may tell them what the statute says and counsel may argue contrary to his instructions.
Hugo L. Black: Well the effect of what’s been done here is, if the Supreme Court is holding just exactly what you say the trial judge couldn’t do.
E. Clinton Bamberger, Jr.: Yes sir.
Hugo L. Black: Keep informing the jury the evidence on the basis that as a matter of law he is guilty of first degree as shown by that evidence.
E. Clinton Bamberger, Jr.: This is what -- the Court of Appeals has in fact directed a verdict.
Byron R. White: [Inaudible] jury has the power to absolutely disregard that he could give that kind of instruction [Inaudible] say what the law is and the jury may or may not follow nevertheless they have the duty to [Inaudible]
E. Clinton Bamberger, Jr.: Every jury may or may not follow instructions.
Byron R. White: [Inaudible]
E. Clinton Bamberger, Jr.: That the jury may or may not follow his instructions and that he can give them such an instruction?
Byron R. White: [Inaudible]
E. Clinton Bamberger, Jr.: Yes, but he must say that it is advisory.
Hugo L. Black: Well In that case, in that case the defendant would have a chance to get the judgment of the jury on whether they would hold it murder in the first degree, would they not?
E. Clinton Bamberger, Jr.: A jury may say --
Hugo L. Black: He wouldn’t have to hold it, would he?
E. Clinton Bamberger, Jr.: No sir, they would --
Hugo L. Black: But here the Court has held it, taking the place of the jury in making that decision.
E. Clinton Bamberger, Jr.: That is exactly the point Mr. Justice Clark.
William J. Brennan, Jr.: [Inaudible]
E. Clinton Bamberger, Jr.: Tried by the Court.
William J. Brennan, Jr.: [Inaudible]
E. Clinton Bamberger, Jr.: Found guilty in the same sentence.
William J. Brennan, Jr.: [Inaudible]
E. Clinton Bamberger, Jr.: The sentence is death sir.
William J. Brennan, Jr.: Death.
E. Clinton Bamberger, Jr.: Both.
William J. Brennan, Jr.: [Inaudible]
E. Clinton Bamberger, Jr.: Both of the warrant of execution was stayed by the Court, because of the appellate procedures in the Brady case and the governor has just not -- has withheld the warrant in the Bobbitt case awaiting the outcome of this.
William J. Brennan, Jr.: [Inaudible]
E. Clinton Bamberger, Jr.: Not to my knowledge. I think I wouldn’t have --
Hugo L. Black: Tried after or before.
E. Clinton Bamberger, Jr.: He was tried after. This is when the -- his fifth statement was offered in evidence. At his trial, his counsel objected, because he hadn’t signed it. The trial court erroneously excluded it. It was discovered by counsel for Brady later when a clemency petition was being prepared and this -- the reference to the statement in the record arouse some curiosity, that’s the first time that Brady or his counsel knew of the existence of it and this was to go back to the beginning of this argument. Mr. Chief Justice, this conference in the Trial Court’s Chambers was -- at this point, Brady’s counsel made it perfectly clear to the state that the one defense that was being asserted that Brady wasn’t the man who actually did the killing. Now, he could have argued with on that point with that evidence. He could have argued to a jury that you ought to construe the felony murder statute that the man who actually pulls the trigger in the commission of the felony is the man who will get the death sentence, but the other man won’t. And -- but he apparently made a choice that he didn’t have any evidence to support a strong argument on this, because he had only the testimony of Brady, and he might have made a far different choice, if he knew of the statement and he might have had for a stronger evidence and the statement alone, if he knew of it.
Earl Warren: Do you recall Mr. Bamberger how this case was argued? Did the counsel for Brady concede on the argument after Brady’s testimony that he had participated in the robbery? Did he concede on the argument that Brady was guilty of first-degree murder, but that he should not receive the maximum penalty?
E. Clinton Bamberger, Jr.: Mr. Chief Justice, the argument was not transcribed. The only reference to that is at the beginning of the Court’s instructions, where the Court says that -- and the Court feels that even though there has been a confession by counsel for the defendant that this traverser is guilty of murder on the first-degree without capital punishment. I take it that at this point, having no evidence to support any argument, any strong argument that they ought to find the man guilty of something less than first-degree murder that counsel had in effect said to the jury, “I want a verdict of murder in the first-degree without capital punishment and we lay ourselves in your hands.” I don’t know what he said. It’s not transcribed, but.
Speaker: [Inaudible]
E. Clinton Bamberger, Jr.: No sir, I don’t think so. I would --
Hugo L. Black: I would like to pursue my question with one more that I ask you. Let’s assume that the Court has -- you said the function of the jury in this man’s case in the State of Maryland that it has decided as a fact what these -- under Maryland law would be left to the jury to decide? In what way do you say that would violate the federal constitution?
E. Clinton Bamberger, Jr.: Well, I’d say it would violate the equal -- certainly the equal protection clause, because it sets this man aside in a different category and gives him a trial before a jury with his guilt already determined and just on the question of punishment. And the only reason I can see to put him in that classification is, because he didn’t discover the overreaching by the state until after the time for a direct appeal had expired.
Byron R. White: [Inaudible]
E. Clinton Bamberger, Jr.: Tried by jury which may or may not have done its duty, but by a prosecutor who didn’t do his duty and if the prosecutor had done his duty and the jury had done its duty, the result might have been different.
Byron R. White: [Inaudible]
E. Clinton Bamberger, Jr.: If the prosecutor had come up with this evidence for Brady prior to the trial, where might it have lead? Now in all the cases in which this Court has considered denials of due process I have not found any case where the Court segregated the conviction and the guilt or any part of the case, but have always said it vesicates the conviction. And one very important consideration by this Court in doing that is, what are you encouraging law enforcement officers to do and I think that’s important in this case. If this results stand then what’s to prohibit the prosecutor with perhaps not the most honorable motives to take the same kind of chance with evidence in a first-degree murder case knowing that --
Speaker: [Inaudible]
E. Clinton Bamberger, Jr.: Well I think it was settled by the Thomas case which preceded this and so did the Court of Appeal.
Speaker: [Inaudible]
E. Clinton Bamberger, Jr.: Well, I am not -- I don’t say that I had to prove that there was any guile by this prosecutor in this case and the Court of Appeals agreed with that.
Speaker: [Inaudible]
E. Clinton Bamberger, Jr.: No, I am suggesting that the remedy for the denial of a constitutional right ought to be so complete that no one can take any advantage of it in the future.
Hugo L. Black: What is the denial of constitutional rights?
E. Clinton Bamberger, Jr.: In this case?
Hugo L. Black: When you say that, yes?
E. Clinton Bamberger, Jr.: It was the --
Hugo L. Black: What do you point to as a denial of constitutional rights?
E. Clinton Bamberger, Jr.: The failure of the state to give to Boblit’s counsel the statement made by his companion prior to the trial, more than that giving him four of them and not the fifth one, misleading him, indicating to him that, oh, sure I’ll give you Boblit’s statements and here they are, but not given him the one that was important.
Hugo L. Black: Are you relying on any of our prior cases to say that that’s unconstitutional?
E. Clinton Bamberger, Jr.: I think I rely on many of your prior cases as did the Court of Appeals. The particular case in point is a decision of the Third Circuit but the -- and I can’t point to a decision of this Court.
Hugo L. Black: Did we not have a case several years ago on that point. I have a vague recollection of it, [Inaudible]
E. Clinton Bamberger, Jr.: Those cases are not briefed in this brief and I don’t remember that particular case, but in the -- this point was argued of course before the Court of Appeals of Maryland. The other -- on part of that on constitutional or the depravation of the constitutional right was that, when that was done, this -- the state knew that the issue that Brady was going to present to the jury was whether he did or Boblit did it. They knew that that was the prime issue. All of these facts together amounted to a depravation of due process by failure to give him that scenario.
Hugo L. Black: I recall, we had a case from Texas in which a Mexican was abused and murdered.
E. Clinton Bamberger, Jr.: Al Corta --
Hugo L. Black: That’s right. Do you think that apply to this? Are you arguing on that basis?
E. Clinton Bamberger, Jr.: Well I argued on that basis in the Court of Appeals and --
Arthur J. Goldberg: [Inaudible]
E. Clinton Bamberger, Jr.: Yeah.
Arthur J. Goldberg: [Inaudible]
E. Clinton Bamberger, Jr.: Yeah.
Arthur J. Goldberg: [Inaudible]
E. Clinton Bamberger, Jr.: Yes Mr. Justice Goldberg. I don’t think that my case stands or falls on the peculiar provision of the Maryland Constitution, but I think my case is an easier one to argue, because of the peculiar Maryland provision.
Arthur J. Goldberg: [Inaudible]
E. Clinton Bamberger, Jr.: No sir, it would not be different, it would perhaps be less forceful.
Speaker: Your case is a lot stronger with that.
E. Clinton Bamberger, Jr.: My case is a lot stronger with that. I don’t give it away, I say that Mr. Justice Goldberg, I would make the same argument but I am more comfortable making it without Maryland Constitutional Provision.
Arthur J. Goldberg: [Inaudible]
E. Clinton Bamberger, Jr.: Yes sir, yes sir.
Arthur J. Goldberg: [Inaudible]
E. Clinton Bamberger, Jr.: The Court has not changed the law in either the Giles case or in the Brady case and the Court by its own rule, which I have included at page 17 of the Appendix of this brief says that the instructions are advisory and that the Court is required to give instructions. Now the Court now by the rules of the Court of Appeals of Maryland, the Trial Court must give instructions, which if they are requested and if they state the applicable law.
Hugo L. Black: How do you answer his argument that even though the constitution says that the jury has that right, they have the right to decide it, but it’s their duty not to take advantage of that right which the constitution said they right the exert, how do you answer that?
E. Clinton Bamberger, Jr.: Well I would argue from the other side of this trial table, that what’s the right this defendant has to be tried before what kind of a jury. Does he have a right to be -- has anyone ever said he has a right to be tried before a jury which will do its duty and maybe interpret the law as the judge thinks the law ought to be interpreted, but he’s got a right also to be judged before a jury which has the right to tell the judge to take his interpretation of the law and throw it out the window and that the jury itself will say what the law is and as much as we as lawyers --
Hugo L. Black: But as I understand it, his argument is, that it’s the duty of the jury, not to exercise this right, which the constitution said they could?
E. Clinton Bamberger, Jr.: Well I say it’s the duty of the jury to exercise the constitutional prerogative that it has. It has just as much that duty as it has a duty to follow its oath in any other regard. The Court instructs them. These instructions which I give to you on the law are advisory. You decide what the law is. They --
Byron R. White: [Inaudible]
E. Clinton Bamberger, Jr.: The right to disregard it and the duty to disregard it if their conscience convinces them that the law is an ass and ought to the otherwise.
Byron R. White: [Inaudible]
E. Clinton Bamberger, Jr.: Well I can’t take it -- if you take a clear rule of law --
Byron R. White: [Inaudible]
E. Clinton Bamberger, Jr.: And they’ve got the right to do it and even if the rule of law is perfectly clear, but they think they ought not to do -- convict this man of it, they’ve got a right not to convict him, this is the history of the purpose. It was to protect --
William J. Brennan, Jr.: [Inaudible]
E. Clinton Bamberger, Jr.: If they may disregard?
William J. Brennan, Jr.: They may disregard a clear rule of law, because they think that’s [Inaudible]
E. Clinton Bamberger, Jr.: They have a right not --
Byron R. White: [Inaudible]
Arthur J. Goldberg: [Inaudible]
E. Clinton Bamberger, Jr.: Well, I think I’ve been trying to say that and that I say as they have a duty to follow the law so they have a duty to follow the constitution and so exercise their prerogative.
Arthur J. Goldberg: [Inaudible]
William O. Douglas: And I think you would begin to have made bigger progress if you had followed Mr. Hopewell and talk in terms of immunity and privileges.
E. Clinton Bamberger, Jr.: I think I might --
Hugo L. Black: Now what is this Supreme Law of Maryland?
E. Clinton Bamberger, Jr.: The constitution I hope.
Hugo L. Black: Well if that’s the Supreme Law of Maryland, why did you say they -- why do you not answer the question when it’s asked to you, if they have a right to disregard the law that they are not disregarding the law?
E. Clinton Bamberger, Jr.: Oh yes.
Hugo L. Black: In doing that, which the Supreme Law of Maryland charges him with the responsibility to do it. It is besides the law in fact for the case and is your constitution not the Supreme Law of your state?
E. Clinton Bamberger, Jr.: And I say they have a duty to follow the constitution and --
Hugo L. Black: That’s the first duty, isn’t it?
E. Clinton Bamberger, Jr.: That’s the first duty and Mr. Justice Bernnan --
Hugo L. Black: [Inaudible] and say we are not going to do it. We are not going to do it, because some judge told us he didn’t want us to follow the constitution, didn’t want us to exercise the right of constitution for that, who is right, the judge or the jury?
E. Clinton Bamberger, Jr.: The jury. Alright and as Mr. Justice Bernnan says then they are -- then they got a duty to follow nothing. Well I suppose that they’ve got a duty to follow the constitution and if that leads them to disregard some duty that they might have to judge properly then I can’t --
William J. Brennan, Jr.: [Inaudible]
E. Clinton Bamberger, Jr.: No sir.
William J. Brennan, Jr.: [Inaudible]
E. Clinton Bamberger, Jr.: Well they may --
William J. Brennan, Jr.: [Inaudible]
Earl Warren: Mr. Bamberger, you happen to recall what oath the jury takes when it’s sworn to try a case.
E. Clinton Bamberger, Jr.: I have -- I can’t quote it to you Mr. Chief Justice, but I remember nothing in the oath given to criminal juries, which is different than that given to civil juries and nothing there about following or judging the laws as such, I think it’s well and truly tried. The issue is --
Earl Warren: [Inaudible]
E. Clinton Bamberger, Jr.: Well brought before you in the case of plaintiff versus defendant or state versus defendant. I think its well and truly tried the issue.
Earl Warren: Yes, very well.