Earl Warren: Number 95, Ruth Elizabeth Chapman and Thomas LeRoy Teale, Petitioners, versus California. Mr. Smith, you may continue your argument.
Arlo E. Smith: Mr. Chief Justice, it -- may it please the Court. Yesterday, we left on the note of why do we look at the entire record. Under any test regardless of how it is defined it's a question of judgment, its judgmental, as just -- Justice Rutledge said in the Koteakos case, you must examine the entire proceeding. This case said is Fahy versus Connecticut, you must examine the impact of that error not examine the error alone but the impact of that error upon the entire case to see whether or not it -- in that test, was reasonably possible that it contributed to the conviction. Doesn't matter how you word it, that's another problem. That case, there was illegally obtained evidence introduced, the paint in the brushes. The Court pointed out there that this had a serious impact of the -- the brush marks were identified as being identical with that paint -- painted the swastika. The paint and the bucket were found in the car which was seen near the scene. The court pointed out that in fact the confrontation of this illegal evidence probably led to the confession that was introduced. It pointed to the impact of that testimony upon the defense concluding that it probably brought about the presentation of the defendant, putting the defendant on the stand. Now what is the impact of a comment hereupon this case? I suggest to you that there is none when you examine the record in this case. It had none of these factors that the court pointed to in Fahy. What happened in this case was a robbery, murder and kidnapping of a bartender in Lodi. The evidence although the petitioners contend that there was no evidence. There were three or four exhibits not introduced but the story is a very simple one. There was conspiracy between Mrs. Chapman and Mr. Teale. They were seeing together for a period of -- they lived together for a period, they left a city in California on October 10, they went to Reno. There she purchased a -- which turned out later to be a very peculiar 22 automatic, and a 32. Thereafter they were registered jointly in a motel in Fresno not 100 miles below the scene of the crime, the very day before the robbery, kidnapping and murder. He signed the registration, she signed would turned out to be a bad check. They were identified. There was expert testimony all the way through as to the signatures. Thereafter that evening, they were seen in a bar called -- bar and restaurant called Croce's in City of Lodi. They were there from about ten until shortly after one o'clock. There were various things that occurred there, there was a lot of discussions but they were positively identified there. They were positively established that they were driving the same 61 Ford that's -- goes throughout the proceedings.
Abe Fortas: Are you inviting us to --
Arlo E. Smith: He left --
Abe Fortas: You're inviting us to conclude from the entire record that these people are guilty and therefore we are to disregard the error.
Arlo E. Smith: No sir, Your Honor. I just thought that I had point out -- pointed out to you that what we are doing is examining to see what impact that error had. Rather that its -- in terms of the constitutional provision, grievous error and as I pointed out yesterday, error which at the time committed under the decisions of this Court.
Abe Fortas: Well, if it's grievous, its not harming us, is it?
Arlo E. Smith: But -- it -- those are different concepts. Prejudicial and harmful is not necessarily grievous in the sense that it's a -- there's plain error instead of grievous. I extract the word if you are going to equate it to harmless or prejudicial. We're talking about words but essentially it's judgmental. They went into the -- they left this bar. Mrs. Chapman said, “We can't do anything in here, let's go.” Few minutes later they entered the bar of the victim. They are positively identified in that bar, both of these people that witnesses point out that in fact they were the last people in that bar when the bar closed. A driver who had been -- knew the bartender driving a truck late at night saw and identified that bartender locking the door, saw a man and a woman meeting the description of the defendants here near -- one of them immediately behind him and the other one nearer. Thereafter the next morning in the County of Sacramento, a short distance away, a body was found, the body of the victim. He's been robbed, his wallet, its contents thrown around and underneath the body is -- found a check, says, “Refer to maker”, signed by Mrs. Chapman. And the time of death as established by the coroner and the experts to be three o'clock, the shooting about two thirty. This witness -- the defendants here then show up in Davis, four thirty of that very morning and register under the false of Kiel Rosenthal, giving a false license plate which the court corrected. Thereafter they fled the State of California, went to Missouri and went to Louisiana. Now, as to Teale, when he was arrested in Louisiana in her car, the very car used in the murder as it's established, identified with the (Inaudible) along. He is brought back to California. He makes an admission there about Lodi to the FBI agent. He's brought back to California. The car is examined. They find fibers on the feet of the victim which match the fibers of the floorboard of the car, fibers in the mat of the car, fibers from the clothing of the -- of Mrs. Chapman. They find blood pattern that -- the same type of the victim's in the automobile.
Earl Warren: Well, Mr. Smith, may I ask --
Arlo E. Smith: They find that the defendant's --
Earl Warren: I still --
Arlo E. Smith: -- hair on the shoes.
Earl Warren: I still can't understand the -- for what purpose you are reciting these facts --
Arlo E. Smith: Well, I will --
Earl Warren: -- unless you want us to say that the facts in this case were so conclusive that no constitutional violation of this kind could affect the outcome in the minds of the jury.
Arlo E. Smith: No Your Honor.
Earl Warren: Well --
Arlo E. Smith: What I'm saying is that --
Earl Warren: What?
Arlo E. Smith: -- that when I finish my recitation, I hope to convince you that the comment had nothing to do, literally nothing to do or certainly no reasonable possibility that it affect of the outcome. Now --
Abe Fortas: Well, that's what you're saying.
Earl Warren: Why?
Arlo E. Smith: Why?
Earl Warren: Because this proof is so conclusive?
Arlo E. Smith: No because there is no -- there is not the kind of things that had no impact upon the defense as you pointed out in Fahy. It had no impact upon the corroboration of any of the witnesses. It had no impact upon creating any possible confessions as was done in the -- pointed out in the Fahy case. It had none of these effects. And essentially the only fact before the jury was as I seek to point out as to one defendant simply a question of intent. And it (Voice Overlap) --
Earl Warren: The thing that concerns me with both of these cases is that in one of them, I think it's the next case, that in one of them, the Attorney General of California argued before the District Court of Appeals the importance of the evidence that is involved. And that not only its relevance but its importance and then you come to this point and say that the admission of that very evidence is harmless error. Now, --
Arlo E. Smith: Well, --
Earl Warren: -- pretty hard to -- pretty hard to understand --
Arlo E. Smith: Well, I'll leave that question before my associate. But let me say this, and it relates to the question asked by Mr. Justice White the other day.
Earl Warren: Would you think those (Voice Overlap) --
Arlo E. Smith: In the application of the harm --
Earl Warren: Do you think those two positions are compatible?
Arlo E. Smith: I think that whether it's relevant or not, the harmless error rule comprehends the concept that whatever is going to be introduced is relevant and important more or less important. If any and if -- you've got to examine the --
Earl Warren: Is this is a more or less important, this -- in your case?
Arlo E. Smith: In my case I'd say it's of little or no importance in the -- on context.
Earl Warren: Little or no importance? Which would you say, little importance or no importance?
Arlo E. Smith: Well, like -- I say that it did not have any reasonable --
Earl Warren: Little importance is quite important to a man whose life is at stake.
Arlo E. Smith: That it had no reasonable possibility of having contributed to this conviction to use your words Your Honor but this is judgmental and you must examine the record. For example, a judge's comment as in Bollenbach made at the time that the jury comes back in and is hung has an entirely different impact even though it may be the same error that occurs early in the trial and may be cured by subsequent instructions.
Abe Fortas: Well, you're -- are you --
Arlo E. Smith: It -- there are a lot of that --
Abe Fortas: Are you or are you not attempting to defend the provision in your Constitution, Article 6 Section 4.5 which says that in effect that the error is harmless unless the courts of the opinion that error complained of has resulted in a miscarriage of justice and how do you construe that in the defendant are not error, can you say --
Arlo E. Smith: Certainly we (Voice Overlap) --
Abe Fortas: -- that it is, that it -- that the -- its defensible as applied in this case, or defensible generally, what is your position?
Arlo E. Smith: Oh, our position if --
Abe Fortas: In my mind that's the key problem here.
Arlo E. Smith: The immediate point is that it's defensible in this position. It's been interpreted to mean where its reasonable probable that'll result more favorable to the appealing party would have reached -- than reached in the absent of the error. I am contending that --
Abe Fortas: I know but had not been so if it had not so narrowed by the -- by decisions of the California courts, would you say to us that it does or does not conflict with the federal constitution?
Arlo E. Smith: Well, I say absolutely not. I say that of course were dealing with words. What is miscarriage of justice? What is prejudice? What is harm? I frankly see no place in the federal constitution.
Abe Fortas: But we don't have an alternative, do we? We have to deal with words.
Arlo E. Smith: That's correct. But miscarriage of justice means what the sense of the California constitution provision with the California Con -- Supreme Court says it means. And it has defined it in the Watson case as I have explained to you. But here we have -- in addition we have his -- we had Teale's confession of the crime. Now, this comment didn't bring about that confession. He confessed first degree murder. It's in the record. That was brought out not tainted by any doctrines of Escobedo or Messiah or any other doctrines, voluntary confession to a fellow prison. Now, let's examine the Motes case. This Court decided that some years back. It involved the question of conspiracy under the Civil Rights action, Motes versus United States. The def -- the -- one of the codefendants, Mr. Taylor took the stand at the prelim and implicated all of the defendants. He was however not produced at the trial. The court said due to the negligence of the Government and due to -- there was no foundation laid. They introduced this testimony which was the only testimony against the defendants in that case. This Court said that was a violation of the Sixth Amendment confrontation. However, it reversed this to all of the defendants except Motes. Motes took the stand and admitted the crime seeking to exculpate all of the other defendants. Now, I suggest to you that if that is harmless then this case here is well within the range.
Speaker: (Inaudible) this case and that it's a federal question to this Court to (Inaudible) directly under any case there is, the state says error as to (Inaudible) --
Arlo E. Smith: No, I do not. I had simply reached this by -- I thought that it'd be important to try to lay some foundation of the facts here because I feared I would never get to it. Our first --
Speaker: Do you think this Court should (Inaudible) examining the record itself, the (Inaudible)?
Arlo E. Smith: No Your Honor. I feel that that is not a federal question but that's a second question asked. I attempted to answer it. Your Honor, it is our position that in error of this kind, there is no federal question. We base this on the other concept and that is that the federal question of course is whether or not the interpretation of the Fifth Amendment would be clearly a federal question but that those errors, there are a lot of errors that the harmless error rule does not even purport to apply to and I think those cases are clearly set out by the -- and delineated by the opinions of this Court in Link Letter, Tehan and Johnson. The distinction that this Court makes there is between confessions, publicity at the time of the trial, counsel, all which this Court explains as being -- as going to the very fairness of the trial to the reliability of the fact finding process. This comment by the prosecutor did not go to the reliability of the fact finding process as you said in Tehan. There was nothing here that was essentially unfair in the sense of the Tehan case. Now, if it were a counsel, publicity, confession or any of these other things that go to fairness reliability that California Supreme Court in most states would not apply a harmless error rule if -- its simply not applicable --
Earl Warren: But you were --
Arlo E. Smith: But in this kind of an error, --
Earl Warren: Do you mean that the argument of counsel does not bear upon on whether the trial is fair or not?
Arlo E. Smith: That's what this Court said in Tehan, Your Honor. It said that it --
Earl Warren: That it did not?
Arlo E. Smith: It said that it was not -- it was not a matter of fair trial. It was not -- did not go to the reliability of the fact finding process and that's the reason why you do not apply it to Mr. Brown who was tried a week before Chapman and Teale and you do not apply it to Mr. Smith who was tried a week after Chapman and Teale and whose appeal have become final, the very same kind of comments.
Abe Fortas: Suppose the prosecuting attorney here or the judge or both had said the -- to the jury that petitioner failed to take the stand and that it's reasonable to infer from that that the petitioner was guilty. And was guilty --
Arlo E. Smith: Well, under --
Abe Fortas: -- I mean he was guilty. Now, would that present a federal question?
Arlo E. Smith: Well, under the California law, it would've been reversed because of other decisions --
Abe Fortas: (Inaudible)
Arlo E. Smith: -- this would be a willful misconduct as I explained to you yesterday.
Abe Fortas: Who -- I know but that -- but --
Arlo E. Smith: (Inaudible)
Abe Fortas: Suppose the California Court says this is harmless error, is that -- would that present a federal question?
Arlo E. Smith: I think that the answer to that is that it does not. However, if they sat to call him --
Abe Fortas: And that --
Arlo E. Smith: -- to the stand then I think it would be --
Abe Fortas: Even though the comment was that the failure to take the stand is in effect a confession.
Arlo E. Smith: That --
Abe Fortas: That were not presented in the -- California Court says that's harmless error. You say would have no jurisdiction, however, would no -- there'd be no federal question.
Arlo E. Smith: Well, I think that the point I have been attempting to make is that if this case sit in Johnson, you must examine the purpose of each rule, you must examine its peculiar history, and its impact upon the administration of justice in determining whether or not that error is subject to the fair trial reliability test to the harmless error test.
Earl Warren: Does that answer Justice Fortas' question?
Arlo E. Smith: I think that the answer there is that it would -- that it does not go to fair trial and -- under Tehan until you get back to the point where you're calling them to the stand -- and that --
Earl Warren: Now --
Arlo E. Smith: question of whether --
Earl Warren: You say that in response to Justice Fortas' question that that would not affect the fairness of the trial and it would not be a federal question?
Arlo E. Smith: I say that there is a federal question. The federal question is the interpretation of course of the Fifth Amendment. If that -- if our court said that was no violation clearly, that's a federal question. But if our court says that that is not harmful, that question is not a federal question. Now our court can examine to determine whether -- what effect it had. Now, it does reach the point and you can give me an example I'm sure where --
Byron R. White: Oh, but counsel --
Arlo E. Smith: There's no relationship between the --
Byron R. White: Factually, you said there is no federal question. What if the claim is which it is that if you leave that evidence in the trial then leave -- still leave it up to jury to decide, the man is not -- have -- had a fair trial if unconstitutionally obtained evidence for example is -- remains in the case.
Arlo E. Smith: Well, it is our contention that --
Byron R. White: Isn't a fair trial, a claim of fair trial --
Arlo E. Smith: It is not a claim of fair trial.
Byron R. White: What?
Arlo E. Smith: That it is not a claim of fair trial if this Court said in Tehan, it isn't, doesn't go the reliability you're claiming --
Byron R. White: But what if there was a claim of this -- of an -- what if there was a claim in this case --
Arlo E. Smith: Well --
Byron R. White: -- with that evidence in the case, he didn't have a fair trial, that's a federal question.
Arlo E. Smith: Well, the federal question -- we say that if in fact it is a fair trial question, counsel question or any of those confession question which this Court has pointed out affects the reliability of the fact finding process. There you can apply harmless error rule, you must reverse. But if it does not present, if it's one of these categories, that does not affect the reliability of the fact finding process of which this is one, then the state can apply its harmless error rule --
Byron R. White: Well, I think --
Arlo E. Smith: Subject to of course a -- obviously a limitation like Louisville versus Thomson where there's nothing to sustain the Court's conclusion.
Byron R. White: Yes, but I take it that the California courts have not retried this man in the appellate courts. They have not said, “Now look, we know that there is -- that there's -- that there was prosecutorial comment here that was not permitted by the Constitution but now we are going to put that aside and we as an appellate court are going to examine all the rest of the evidence then we have and we find that we find them guilty.” That isn't what --
Arlo E. Smith: No, that's not what they said, no.
Byron R. White: -- you say. You say that -- but you say that the jury trial, it stands because of the prediction or the feeling that this evidence could not have had any impact, that you --
Arlo E. Smith: That's one of -- that's correct, that what we're doing here -- this is a rule that really regulate the appellate in the trial court. The trial court of course has a primary responsibility of protecting the man's rights of ruling on the evidence. The whole purpose of the rule is to administer justice, to examine the record, to see whether or not there was any harm. The Constitution does not say or require that you have an error on its trial. It requires that you have a fair trial. And under the decisions of this Court this question under Tehan does not present a question of fair trial, as defined there in terms of something that affects the reliability of the fact finding process. That's what we are saying. We are saying that there is nothing in the Fourteenth Amendment for the Constitution any place that lays down a requirement that the state reverse the case where there has not been a denial of a fair trial and this is such a case.
Hugo L. Black: Suppose he'd been denied a lawyer?
Arlo E. Smith: Oh, I -- as I explained that's a question of fair trial.
Hugo L. Black: Well, that --
Arlo E. Smith: And the --
Hugo L. Black: I forget the word fair trial in it.
Arlo E. Smith: That goes to the reliability of the fact finding process --
Hugo L. Black: But if --
Arlo E. Smith: -- is the nature of the defenses, it's immeasurable.
Hugo L. Black: He's been denied a lawyer. According to you that wouldn't raise a federal question if the state were to say, “Well, he's denied a lawyer but he didn't heard him.”
Arlo E. Smith: To the contrary, we say Your Honor that that goes to the fair -- that goes to the reliability of fact finding process and he is now automatically reversed. It's not even covered by the harmless error rule.
Hugo L. Black: Why doesn't (Voice Overlap) the reliability of the fact finding process that anytime evidence is admitted in a con -- unconstitutional manner?
Arlo E. Smith: Well, then if that's true, it -- well, of course we're talking about evidence but then if that's true Your Honor.
Hugo L. Black: (Voice Overlap)
Arlo E. Smith: -- how could we -- how could you even have the doctrine that the federal courts have and that all the states have that where this kind of error happens, the indirect comment, you can cure it by instruction. Indeed, if there is an error, you'd have to reverse regardless of the -- any curative effect of instructions but the answer is you examine the error in the context of the case, immediate instructions given, the effect and impact upon the entire case. It's not -- it's not a matter of --
Hugo L. Black: Suppose they had broken into his house without any search warrant and gather some goods, and offered that in evidence and had it, would you say that that's -- doesn't raise a federal question if he's convicted on that?
Arlo E. Smith: I say that the -- I say that there's a federal question whether or not he broke into it. I say there is a federal question if that requires that the state had -- its state have a rule to exclude this but I say that whether or not there was a -- was harm is a state question because again in that particular instance and I don't purport to argue that question here but again we contend that that is not under the Link Letter case. One of those things that goes to the reliability of the fact finding process that -- and there's a clear example where virtually every state, virtually every circuit with some exceptions have applied a doctrine of harmless error, a judgmental thing, a review of the entire proceeding. It's a matter of wording. As Rutledge says, you can word it literally any way your heart desires and you -- but it boils down to a judgment factor. This of course requires the -- its work, its hard work for a court to review but this is the way we administer justice to the individual. We examine to see whether it was harmed by the error. We simply don't look at the error. We don't and this of course raises the specter as we expand the concepts of due process which I am not seeking to criticize or take any objection but as we expand these doctrines we get further removed from the very denial as here, the bringing of -- compelling a witness to testify the search. We introduced indirect comment into a trial that may have no effect --
Hugo L. Black: Suppose the only --
Arlo E. Smith: -- literally no effect.
Hugo L. Black: Suppose the only evidence they had in the world has been introduced unconstitutionally, would you say that this Court -- that didn't raise a federal question?
Arlo E. Smith: What do you mean introduced uncons -- as unconstitutionally? I'm not quite sure if you mean that it was seek -- search evidence --
Hugo L. Black: I mean, (Inaudible) search and seizures, confessions and everything else. Its all -- that's all that's against him.
Arlo E. Smith: I say that --
Hugo L. Black: Would you say that the federal courts do not have a right to determine whether that hurt him?
Arlo E. Smith: No Your Honor, I have never said that. I have said that you examine the particular error to see whether or not that particular error whether it be introduction of evidence, comment or any other violation, to examine that to see whether or not the --
Hugo L. Black: Who have done that? Who examined it?
Arlo E. Smith: Well, of course this Court ultimately.
Hugo L. Black: The federal court.
Arlo E. Smith: But, wait a minute, the issue itself, the error not the impact, whether the error is of a kind that it denied fair trial in the sense of it affected the reliability of the truth determining processes, then we don't apply harmless error but if it didn't effect the truth determining processes as this comment did not under Tahen then we permit the courts to apply a harmless error rule.
Earl Warren: Do you think that this rule that you're advocating here applies to your next case from California?
Arlo E. Smith: Oh, yes I do Your Honor. That, we have so contended --
Earl Warren: Well there, it didn't -- didn't the --
Arlo E. Smith: And --
Earl Warren: Didn't the fact that this brown piece of paper that they found and that they introduced and that they argued was of great importance in the case. Did that not affect the fact when in process?
Arlo E. Smith: Well, I say no Your Honor but I leave that question --
Earl Warren: Why?
Arlo E. Smith: Why?
Earl Warren: Why was it introduced if it didn't -- if it wasn't relevant and didn't affect the outcome of the case?
Arlo E. Smith: Well most -- if you take that argument Your Honor, any error in hearsay, any error committed presumably is going to be designed to affect the course of the trial. Any relevant evidence, any error then would not be within a harmless error rule.
Earl Warren: I thought we were talking about unconstitutional --
Arlo E. Smith: That's correct.
Earl Warren: -- evidence.
Arlo E. Smith: Now --
Earl Warren: And wasn't it admitted in the next case that the search was unconstitutional?
Arlo E. Smith: No, we do not. Our courts said it was but that's another question.
Earl Warren: Your court said it was.
Arlo E. Smith: That's right but we say --
Earl Warren: You don't have (Voice Overlap) --
Arlo E. Smith: -- we say it's not under the decision of this Court. They misapplied but that's another question.
Earl Warren: Well, --
Arlo E. Smith: But we --
Earl Warren: -- it supported -- it's what you call (Inaudible) --
Arlo E. Smith: No, there --
Earl Warren: -- because you stand here arguing one phase of it and you say because it isn't evidence, the remarks of the prosecutor that therefore if there's no federal question, you say it has to bear upon the fact finding process. And in the very next case --
Arlo E. Smith: That's right, no --
Earl Warren: -- here -- no, let me finish please.
Arlo E. Smith: Yes, go ahead.
Earl Warren: In the very next case, we have a situation where they did introduced evidence that they argued to the jury with very important and they argued it to the District Court of Appeals and do you say there that although your courts have admitted that there was an unconstitutional search and seizure whereby they obtained this paper that there is no federal question involved here --
Arlo E. Smith: I say the federal --
Earl Warren: -- when you say -- when they later say that it's harmless error.
Arlo E. Smith: Yes, Your Honor, we say that. We say that --again it does not go to the -- this evidence was reliable. It didn't infect, fatally infect in any fashion the truthfulness, the truth fact finding process. In fact, --
Earl Warren: But wouldn't that be true of any unlawful search and seizure if he actually found evidence against the man, it wouldn't?
Arlo E. Smith: That's quite correct.
Earl Warren: Then you think that in every search and seizure case that the court is free to find that the introduction of unlawfully seized evidence is harmless error?
Arlo E. Smith: No, obviously there are -- that extreme case where the -- number one I do not assume that our courts or any courts are going to mis -- deliberately misapply --
Earl Warren: Oh, no, we're not dealing with assumptions. We're dealing --
Arlo E. Smith: That --
Earl Warren: -- that if it does happen.
Arlo E. Smith: But I say that this Court can then review it under the Louisville versus Thomson doctrine. If there is no reasonable relationship --
Earl Warren: Well --
Arlo E. Smith: -- between the state and if there's a harmless error on the record --
Earl Warren: Well, would it --
Arlo E. Smith: -- now then you can reach it.
Earl Warren: Louisville versus Thomson doesn't try any part in this. Of course, this evidence that they got by an unlawful --
Arlo E. Smith: No --
Earl Warren: -- search and seizure was relevant. Of course it was material, that's the reason it was put into the record. So we couldn't say that there was no evidence against him. The question is was it constitutional evidence?
Arlo E. Smith: I'm sorry.
Earl Warren: And was it used for the purpose of convicting him and if it was does the court have a right to say -- your court have a right to say as a -- as state law that it was harmless error and this Court has precluded from it reading, it is a federal question.
Arlo E. Smith: Your Honor, I apologize. I shorthanded that Louisville analogy but I was attempting to say and not accurately apparently and that is that there -- you do arrive at a case where the state would -- that misapplication of the harmless error doctrine would be so bad, let us say that all men would virtually agree that this was harmful then I say this Court can reach it as it did --
Earl Warren: Now, under what section of the constitution do we reach it --
Arlo E. Smith: I say you'll reach it --
Earl Warren: -- or would that reach this one.
Arlo E. Smith: Is -- well, you reach it under -- in the Louisville decision which was -- the Fourteenth Amendment.
Earl Warren: Well, you just said that you misspoke --
Arlo E. Smith: -- which was the Fourteenth Amendment.
Earl Warren: You just said you misspoke yourself that Louisville didn't apply.
Arlo E. Smith: No. I said that I have not made my analogy clear and that is to say that there we have a state question whether or not there's sufficient evidence. Normally, not federal question at all -- is that not -- that is correct. This Court doesn't review whether or not this case or any -- virtually any case, there's sufficient evidence. However there is that case where the state misapplies, grossly misapplies where reasonable men cannot really disagree that there is no evidence and I say in that kind of -- drawing that same analogy over to the harmless error, I say you reached the case where the harmless error is so grossly misapplied that this Court could then review it but not in the ordinary case.
Earl Warren: Under what section of the constitution?
Arlo E. Smith: Under the Fourteenth Amendment but -- the -- I say that generally speaking this -- what we're dealing here is a very fundamental question in the role of appellate courts in relationship to trial courts and in the role of the entire federal system to state courts and I say that if this Court can review that question then under the habeas corpus doctrines the District Courts unless if the state issue can review it. I --
Earl Warren: Couldn't we say --
Arlo E. Smith: In every affirmance then, it becomes subject to -- literally subject to review by federal courts.
Earl Warren: Couldn't we also say by the same reasoning if there is no constitutional question in -- I mean if there is no federal question in this case then in all cases, the state can say, “Oh, yes we agree that this man's constitutional rights were violated but we believe it's a question of state law whether it is -- whether it was harmful or not to him and we conclude that it is not harmful therefore his conviction is sustained.
Arlo E. Smith: Well, I say, they can in all cases as -- except in that gross misapplication, they cannot. But I say that as we expand that the concept of due process to cover many technical very -- becomes technical error in the sense of indirect comment. This is a case but the case where you have an indirect and inadvertent reference to the fact the defendant may have been -- not taken the stand. Has no bearing, no impact upon the trial. And I say that as we expand, the same thing is true in search and seizure. You could evidence that although relevant is insignificant. Has no impact upon the defense, the whole proceedings and I say that we're in great danger of coming back to the situation we were in the 1890s when this whole reform, when the harmless error was brought forth. The crises and public crisis in the confidence of the administration of justice and this Court, I needn't quote pointed this out, this danger in the Snyder versus Massachusetts. Mr. Justice Douglas pointed it out in a couple of other cases. Thank you very much.
Earl Warren: Mr. Lavine.
Morris Lavine: Yes sir. May it please the Court. Counsel has stated that there was no impact upon the jury in connection with this case in the comments of the prosecutor. If Your Honors will turn to appendix E in my brief, starting at page 92, you will find the -- from that page 92 to 106 of the comments of the prosecutor on the failure of the defendant to take the witness stand together with page references in the original transcript which is on file here. It would take more than the time I have allotted to me to read all of these comments. I just read a few of them yesterday. Counsel misstates the statement that there was a confession. The defendant Teale talked to a fellow prisoner in jail. He said he -- they'll have a hard time proving I was there. Now, then this is the extent and then the prosecutor argued page 1855 of the transcript which as I state you have the original unfiled in the basement here and the prosecutor says, “Now, I don't know what he meant by that statement. I certainly can draw my own conclusion and you sure can draw yours.” The state has drawn the conclusion that it was a confession apparently but anyhow, the prosecutor argues that the -- you sure will draw yours and as triers of a fact and the judges of the fact, ladies and gentlemen, that once again Mr. Teale did not take the stand and testify under oath in this case. And Mr. Teale has not desired to take the stand and explained what he meant by it. He --
Speaker: (Inaudible)
Morris Lavine: The federal question is the Fifth -- as due process under the Fourteenth Amendment whether failure to take the -- a comment on the failure to take the witness stand --
Speaker: (Inaudible)
Morris Lavine: My position is that under the -- that since it was a violation of the Fifth Amendment, it was a violation of constitutional proportion when our con --
Byron R. White: (Inaudible)
Morris Lavine: Well, then it becomes a violation of due process under the Fourteenth Amendment Your Honor.
Speaker: And you're arguing that the -- and there's a (Inaudible) of fair trial?
Morris Lavine: A fair trial.
Speaker: (Inaudible)
Morris Lavine: That is correct Your Honor.
Speaker: That's your contention?
Morris Lavine: That's my contention. Now I raise that question in my petition for certiorari, the question of fair trial. It was not listed among the issues but its inherent in the argument here today Your Honor that both of these defendants --
Byron R. White: (Inaudible)
Morris Lavine: Well, the consequences are -- is unfair trial Your Honor. The consti -- issue becomes a second issue Justice White of whether are state statute, Article 6, Section 4.5 as it then existed is unconstitutional in limiting the application of the Fifth and the Fourteenth Amendment. It's my position Your Honor and Your Honors and I thought -- I attempted to make it clear yesterday that when the framers of our Constitution had to implement it with the Bill of Rights that the essential portions of the Bill of Rights became incorporated into the Fourteenth Amendment. This Court at least has held that the Fifth Amendment, the Fourth Amendment, the Sixth Amendment and possibly the Eighth have now become incorporated by the rules of this Court, by the opinions of this Court as a part of the Fourteenth Amendment. It's my position Your Honors that these are fundamental errors of constitutional magnitude which the framers of our Constitution and the persons who adopted the Bill of Rights put in there so that the Constitution could pass and that --
Tom C. Clark: Well, the California Court did -- does not deny that there was constitutional error committed. They don't deny that.
Morris Lavine: Well, they did in their first opinion Your Honor --
Tom C. Clark: No, but --
Morris Lavine: -- and then later they amended that and modified it.
Tom C. Clark: No but the -- you have to get the time sequence here of Griffin against California. This wasn't a deliberate attempt on the part of California to obey the federal constitution -- federal right. They applied the law when Griffin came down, they applied and they said alright under our federal -- under our harmless error rule we recognize this error but we still think that this conviction is a just and proper conviction.
Morris Lavine: Well --
Tom C. Clark: Now your position is as I take it that having admitted that a federal error was committed that obviates as a matter of federal law the application by California of any harmless error rule.
Morris Lavine: That is correct Your Honor.
Tom C. Clark: That's your position.
Morris Lavine: And particularly in this case, I want to call Your Honor's attention to something unusual that happened in this case. When the first opinion came down, the Court -- the California Court apparently was not aware of the fact that there had been this comment. On page 55 of my brief the court's opinion, first opinion is set forth as stated, neither defendant testified in his or her own behalf in the exercise of their constitutional privilege. This failure to testify was not commented upon by the prosecuting attorney. But the court in instructions to the jury and in accordance with the California constitutional provision stated among other things that the failure of defendants to testify from facts within their knowledge and explanation of incriminating evidence maybe deemed as tending to indicate the truth of such incriminating evidence and that among the inferences that may reasonably -- maybe reasonably drawn there from, those unfavorable to the defendant are the more probable. Now, immediately there was a petition for rehearing file calling attention to the court that they had overlooked all these comments which I have called Your Honor's attention in my brief from pages 92 until the end. So they then adopted and -- a modifying opinion in which they acknowledged that they were wrong and set forth that there were a number of arguments made as to the failure of the defendants to take the stand. In fact it covers two, almost two printed pages and then they go on to say the foregoing comments and instruction have been ruled in violation of the Fifth and Fourteenth Amendments, Griffin versus California, Malloy versus Hogan --
Abe Fortas: Well, the court -- the court's enumeration of the comments that were made with respect to the defendant's failure to take the stand appears on page 60, doesn't it?
Morris Lavine: 59 and 60, yes, Your Honor. Start --
Abe Fortas: And does the Government, I mean to say, does a state dispute that part of the court's opinion, (Voice Overlap)?
Morris Lavine: No, they do not. As a matter of fact, they set forth those very matters and admit them in their respondent's brief. But with the -- some --
Abe Fortas: And the court says on page 60 that one of the comments related to the implication would be drawn as I read it in failure to testify with respect and I quote “to the overall commission of the crime”, is that correct?
Morris Lavine: Yes, that is correct, Your Honor. Now, I believe that the respondent has admitted in its brief most of these comments but I have set them forth in considerably more detail and Mr. Chief Justice you asked me yesterday about the instructions of the court to the jury and I have read it out of the opinion of the court in part but the complete instruction is contained on page 2163 of the typewritten record which you have here.
Speaker: Suppose the error in this case is -- in denying the constitutional error, the error of California law in the court, Supreme Court of California that the (Inaudible)? Do you have to take your harmless error rule to advise the federal question?
Morris Lavine: Only if it denied fair trial as this Court has construed it by its numerous cases.
Speaker: (Inaudible)
Morris Lavine: Yes, I do Your Honor.
Speaker: But you say that automatically that the -- that you (Inaudible) the error is constitutional (Inaudible) not automatic in this case, I mean, application of the harmless error.
Morris Lavine: Yes, because as I read the -- as I read the history of the Fifth and Fourteenth Amendment and I go back to an opinion written -- a dissenting opinion written in Twining versus New Jerseyin 211 U.S. at page 114 by then Mr. Justice Harlan which is very long and I haven't time to read it but it's about 100 -- about 12 pages long and it's very full and gives a quite a history of the Fifth Amendment which he viewed as being incorporated in the Fourteenth Amendment.
Speaker: Perhaps you -- since the problem here (Inaudible) constitutional error?
Morris Lavine: Well, that is right but you -- but I still -- but you asked me if any constitutional error per se becomes automatically a harmful error and I say that it does because it's of constitutional magnitude and because the framers of our Constitution insisted in the formation of the Bill of Rights that the Bill of Rights be passed before they would agree to the passing of the Constitution and nine states in this country voted for the Bill of Rights because -- and the Constitution was passed only because the Bill of Rights was there to protect the people in those fundamental rights. Now, what are those fundamental rights? The Fourth Amendment, unlawful search and seizure which Your Honor has in the next case, the Fifth Amendment, self incrimination, the denial of counsel, illegally securing confession; the Sixth Amendment, denial of counsel. Can we name any right that is guaranteed by the consti -- Bill of Rights that it is now of fundamental error, that it is now of such magnitude that the mere failure to observe it is of such an error as requires its recognition and that any rule that says of it as harmless tries to limit the provisions of the United States Constitution. Now, if Your Honors please, summing up in this case, it is my position that the State of California has conceded that error was committed in this case by the numerous comments and they have conceded that it violated, as the Griffin rule and the Malloy versus the Hogan rule exists today. They would turn the faucet on and off. They say it was harmless yesterday but it's harmful today. Well, such a view cannot be taken of fundamental error such as an existence here nor all these pages as I have set forth in from page 92 on in my brief. Now, there is a little comment that was made in an opinion written here sometime back in Miller versus the Territory of Oklahoma which was adopted by our Court and People versus Glass, the seal unrestrained by legal barriers of some prosecuting attorneys tempts to an insistence upon the admission of incompetent evidence or getting before the jury some extraneous facts suppose to be helpful in securing a verdict of guilty where they have prestige enough to induce the trial court to give them latitude. When the error is exposed on appeal, it is about whether stereotype argument that is not apparent and anywise that it in anywise influence the minds of the jury just as Your Honor Chief Justice pointed out in arguing with the attorney general here in comment to the attorney general. The reply the law makes to such suggestion is that after injecting it into the case to influence the jury, the prosecutor ought not to be heard to say after he has secured the conviction it was harmless. As the appellate court has done inside in -- to the deliberation of the jury room, the presumption is to be indulged in favor of the liberty of the citizen that whatever the prosecutor against the protest of the defendant as laid before the jury help to make up the way of the prosecution which resulted in the verdict of guilty. Your Honors will find that on page 6 of my closing brief. It's adopted in People versus Miranda and again this Court in its early case of Bram versus U.S. also have the language that is quite similar that the court cannot say after it has come in that it is harmless. The prosecutor used it to bring a conviction. He used it to lead the jury to infer the guilt of these defendants and on top of inferring to the guilt of these defendants that the court instructed the jury in language that told them they could do that respectfully. Thank you.