Petitioners Reply Brief — Smith v. Yeager

IN THE

Supreme Court of the United States

OCTOBER TERM, 1968 3

.

» No. 399 .

Epear H. SMITH, JR., Petitioner,

Vv.

“Howarp YEAGER, WARDEN, Respondent.

On Pétition for a Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

_ REPLY BRIEF OF PETITIONER

The State of New J ersey fails to rebut with reasons

each of the three arguments presentéd.

QUESTION ONE—Massiah’s Retroactivity

‘The State insists that the post-indictment admission

it deceptively elicited from petitioner was no more than

an acknowledgment that the stenographer had been

‘‘accurate’’ in transcribing the prior confession. But

2

that ignores the use made of the chains sili

sion at trial. Since the jury was permitted to consider

the “accuracy” statement in assessing the “‘weight and

credibility’’ of the prior confession (T. 963, Pet. 7, 13),

the statement was used against Smith, not merely to -

show that he had verified the transcription, but to prove

that he had reconfirmed the truth-content of the con-

fession. In short, it was used as a second confession.’

Assuming that view of the ‘‘accuracy’’ admission,

the State does not dispute that Massiah was violated,

but contests only its application on retroactive col-

lateral attack. It implicitly acknowledges that this

- Court, in McLeod v. Ohio, 381 U.S. 356 (1965) has

already distinguished Massiah from: Escobedo and

Miranda by applying Massiah to pending appeals.”

But the State offers not a single reason for denying ad

' full retroactivity. Although New Jersey repeats, in

abstract terms, the Linkletter categorics to be con-

sidered, it fails to analyze the applicability of the cate-

gories to Massiah in particular. For — with

~— 1 Likewise beside the point is the State’s érgumént that the first ..

onfession might have been admissible without the later ‘‘aceur-

acy’’ admission. The point is not what ‘‘accuracy’’ might have

meant, or how the first confession might have been admitted, but

> how the ‘*accuracy’’ statement was, in fact, used at trial.

2The State’s only lower court citations, Romano v: Fay, 360

F.2d 389 {2d Cir. 1966) and Iyles v. Beto, 363 F.2d 503 (5th Cir.

1966) are therefore unavailing since neither opinion acknowledged ,

even the existence of McLeod, and Romano ‘‘does not involve a

confession.’” 360 F.2d at 398.

Notably, this Court has re-emphasized again this Term, for

retroactivity purposes, the ‘distinction drawn between the right to

counsel cases [e.g., Massiah] and those arising under the Fourth;

and Fifth Amendments... .’’\[eg., Miranda]. Arsenault v.

,

ve No. 187 Mise., decided October 14, 1968, ‘= |

a Re Se ee ee i in Ras a 5 Bathe ht

3%

respect to the impact of retroactivity on the ‘adminis-

tration of justice’’, it does not rebut that post-indict-

ment interrogations are rare, and that less than ten

reported cases have presented retroactive Massiah vio-

lations. (Pet. 16-17). And_in a case in‘which a com-

ment on the ‘‘accuracy’’ of a transcription was twisted

for use at trial as a second confession, the State would

have this Court believe that ‘‘the very integrity of

- the fact-finding process’’ Linkletter v. Walker, 381 U.S.

. 618, 639 (1965) was left unaffected!

QuESTION Two—The “Waiver” of a Townsend Hearing

In 1961, prior to the development in Townsend v.

Sain, 372 U.S. 293 (1963) of the right to a habeas.

hearing,® petitioner’s first habeas court and his counsel

made comments that allegedly constituted a “‘waiver”’

of that right. The State’ 8 a here, however, does

not: dispute :

1. That the expanded ‘‘right md a 2 hearing” was then

unknown. (Pet. 18).

2: That. the alleged: ‘waiver’? remarks of court and -

counsel were made. three weeks apart from each other.

(Pet. 19).

3. That the habeas judge never explicitly offered a

hearing, but instead was expressing concern for ‘‘the

state of the record’? in terms of the completeness of

the papers filed. (Pet. 19-20). | |

4. That petitioner’s. present habeas petition states

allegations in a degree of detail that would have been

unavailing prior to Townsend, >

. Apparently, New J ersey is still under the impression that

habeas hearings are entirely discretionary (Br. in. a Opp. 19), de-

"+ spite Townsend’s ‘‘mandatory’’ categories.

ee eee r i eh a a a od a aa a aaa ~ ty ey tenternnkasors ee

-

4

5. That the ‘‘voluntariness hearing’? conducted at.

trial was conducted unconstitutionally in the presence

of the jury, (Sims v. Georgia, 385 U.S. 588 (1967) ), by

‘inadequately prepared trial counsel who was belated

in his attack on voluntariness and then virtually failed

to conduct any cross-examination. (Pet. 24-25).

“6. That Lema never personally consented to the

. alleged ‘‘waiver’’.. (Pet. 23).

These ‘ilimatia facts are utterly inconsistent with -

this Court’s teachings on the validity of a ‘‘waiver’’.

_ Johnson v. Zerbst, 304 U.S. 458, 464-66 (1938); Fay

v. Noia, 372 U.S. 391 (1963).

Question THREE—Involuntariness on thé Existing

| State Court Record —

The. State attempts to distinguish Greenwald v. Wis-

consin, 390 U.S. 519 (1968) by noting:

1. Greenwald was taking medication but had none

during his detention. But Greenwald

- “himself testified that at no time between his arrest:

and his confession did he express to anyone a de-

sire for food or medication.’’ 390 U.S. at 522.

Moreover, Smith too was ill (T. 541) and consequently

could eat only two eggs and cups of coffee during the

35 sleepless hours that culminated.in his 13 hour night

long detention. -

- 2. Greenwald, interrogated after Escobedo, réquested

a lawyer. But unlike petitioner Smith, he was “‘by

no means a stranger to the criminal law’’. 390 U.S.

at'521. Moreover, petitioner has consistently alleged

a request in his pro se habeas applications even before |

_ Escobedo highlighted its legal significance. (Pet. 22,

Pet. App. 152). The State, however, has never re-

sponded to this or any other of Smith’s habeas allega-

£ Pw Ser mor ge

eee ed

5

tions. In all the years of litigation, it has done no

more than baldly oppose an evidentiary hearing. Its

assertion thatthere was no request is therefore iron-

ically typical of its characterization of what “the rec-

ord shows”’4 (Br. in Opp. 21, 28). |

‘This Court need not order an evidentiary hearing,

however, for New Jersey does not and cannot rebut:

that in virtually every relevant detail Greenwald and.

Smith are as much on all fours as two cases are ever

likely to be: ) .

| - Greenwald Smith

Time of arrest . ' 10:45 p.m. 11:30 p.m.

Total detention prior :

to confession 1234 hrs. 13hrs. -

Physical condition Taking medicine Til and cold

Warnings None None. .

Sleepless hours ~ At least 13 35 (in bed for two hrs.

oa prior to arrest)

Last meal 4:00 p.m., prior Morning before arrest

_ to arrest

Detention food ° -None 2 eggs an cups of coffee

Promises or threats None Disputed

Number of Interrogators “*Several at a time” More than 12

-Early morning detention Line-up é Doctor’s ‘exam, hair

events . & nail sample taken

Moreover, the State also ignores the features of

Smith’s interrogation that made it even more coercive.

than Greenwald’s : . .

1. Greenwald was left alone to sleep from 2 a.m.

until the morning. Petitioner Smith was taken from.

* Likewise the record does not show that petitioner ‘‘(1} was

alert and had sufficient rest; (2) had sufficient food; (3) wasn’t

continually questioned or harassed ; (4) that no promise or threats

were made to him by the police or prosecutors’’. (Br. in Opp. 21). —

The record plainly refutes the first three of these assertions and

the fourth is the subject of another habeas allegation that the State

has consistently refused to test in any court.

/ 6

place to place and questioned from time ‘to time

throughout the night by different teams of officials.

‘& Greenwald; but not-Smith, testified that he was

fully aware of his rights to silence and counsel.

_3. In Smith’s ‘case, hours prior to the confession,

the most damaging evidence against him, more than

ample for arraignment, had already neon obtained.

(Pet. 6).

. , Finally, aliiineaiinn case, although well within the

Greenwald holding, does not necessarily rest upon that

alone. (See chart, Pet. 26). The State tesponds to

petitioner’s comparison chart only by isolating single

factors present in certain of this Court’s cases that

‘ are not present here. Petitioner does not contend that

his case is fully congruent with each of the cases pre-

_ sented in the chart. His was, however, an interrogation

in which the ‘“‘totality of the circumstances’’, see Clewis

v. Texas, 386 U.S. 707 (1967) manifests an overreach-

ing no less coercive than those that have compelled

this Court to reverse in the past. ;

Respectfully submitted,

EpwarD BENNETT WILLIAMS

STEVEN M. UMIN

- 1000. Hil] Building

ee ce ~ Washington, D. C. 20006

ae Attorneys for Petitioner

Of Counsel: — - :

STEPHEN, I’. LICHTENSTEIN

505 Broad Street Bank

Building

Trenton, New Jersey