# Petitioners Reply Brief — Smith v. Yeager > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1183%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply Brief - **Published:** January 1, 1968 - **Citation:** 393 U.S. 122 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1183%3A4. Public record. Not legal advice.