Brief for Appellant — Herring v. New York

ed

Supreme Court, U. S$.

FilLiFeD

IN THE

Supreme Court of the United'States - -—

OCTOBER TERM, 1974

No. 73-6587

CLIFFORD HERRING,

Appellant,

NEW YORK,

Appellee.

APPEAL FROM THE APPELLATE DIVISION OF

THE SUPREME COURT OF THE STATE OF

NEW YORK, SECOND DEPARTMENT

BRIEF FOR APPELLANT

DIANA A. STEELE

WILLIAM E. HELLERSTEIN

The Legal Aid Society

119 Fifth Avenue

New York, New York 10003

Counsel for Appellant

Washington. OC. ¢ CLE PUBLISHERS « LAW PRINTING CO. « (202) 399-0625

Cases:

Aladdin Oil Burner Corp. v. Morton, 117 N.J.L. 260,

See CGE OSEED cc ccccecesenceccecepesdoces 16

Anselin v. State, 72 Tex. Crim. 17, 160 S.W. 713

DT cdussvenebovdsneewenedbdecebeudneus

Argersinger v. Hamlin, 407 U.S. 25 (1972) ..........

Brooks v. Tennessee, 406 U.S. 605 (1972) ...........

Callan v. Biermann, 194 Kan. 219, 398 P.2d 355

Dn sadeackebebensecdebentebdneseeeneéen 16

(i)

TABLE OF CONTENTS

Page

I i ee ee nae l

DT sauteubeciunassheasyasnunes tees 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .................... 2

QUESTION PRESENTED ................. 2.2... ee. 3

STATEMENT OF THECASE ...................... 3

SUMMARY OF ARGUMENT ...................... 7

ARGUMENT:

POINT |

SECTION 320.20(3c) OF THE NEW

YORK CRIMINAL PROCEDURE LAW,

WHICH AUTHORIZES A TRIAL JUDGE

TO PROHIBIT CLOSING ARGUMENT IN

A NON-JURY TRIAL IS, ON ITS FACE

AND AS APPLIED, VIOLATIVE OF THE

DUE PROCESS CLAUSE OF THE FOUR-

TEENTH AMENDMENT AND THE RIGHT

TO COUNSEL PROVISION OF THE SIXTH

cc a. IT PP re 9

ee ee ei da dds 25

TABLE OF AUTHORITIES

(ii)

Page

Casterlow *. State, 256 Ind. 214, 267 N.E 2d 552

DETED C6 cee eeeeeee ee Seeeee Sheeeeeeseees 17

Coleman s Alabama, 399 U.S. 1 (1970) .............. 10

Comme.rvealth v. Gambrell, 450 P» 290, 301

i | | $=SPPrerrrrrTrr TT irrrryr sy 16

Coms .onwealth v. McNair, 208 Pa. »uwper. 369, 222

~ | , £=—RPPPPTPETITIC TIT T TT L Te 16

Decker v. State, 113 Ohio S* 512, 150 N.E. 74

BED cccccccccses Seeseeseeesececcesoees 16

Douglas v. California, 37? * S. 353 (1963) ............. 10

Ferguson v. Georgia, 36° J.S.570 (1961) ......... 7,11,12

Ferguson v. State, 1+ Tex. Crim. 250, 110 S.W. 2d

GR GRTETD nce ceereveceseccsesccceccesesees 16

Floyd v. State, “ 50. 2d 105 (Fla.,1956) ............. 16

Gideon v. Wa’ right, 372 U.S. 335 (1963) ..... 7,10,13,14

In re F..!* Cal. Rptr. 170, 520 P.2d 986 (1974) ....... 17

Lewis . tate, 11 Ga. App. 14, 74 S.E. 442 (1912)....... 17

Rone? .. SEE, DERE, SES GED cc ccccccccccccccccccces 14

Mer av. Rhay, 389 U.S. 128 (1967) ................ 10

@ att v. United States, 348 U.S. 11 (1954) ............ 23

ids v. Commonwealth, 10 Ky. (3 Ak. Marsh) 465

Dn: -cntcadwed teen sb ehe de kebes ebukedouse 16

Patton v. United States, 281 U.S. 276 (1930) ........... 13

People v. Berger, 284 Ill. 47, 119 N.E.975 (1918) ....... 17

People v. Douglas, 31 Cal. App. 3rd Supp. 26, 106

Cal. Rptr. 611 (App. Dept., 1973) ................ 17

People v. Green, 99 Cal. 564, 34 Pac. 231 (1893) .......... 14

People v. McMullen, 300 Ill. 383, 133 N.E. 328

Dn + sadihic dee eae ea ein eeeww ee teen 14

People v. Manske, 399 Ill. 176, 77 N.E. 2d 164

Dn ttccbenenedacksdvene au beducetendcsns 17

(iii)

Page

People v. Thomas, 390 Mich. 93, 210 N.W. 2d 776

Dn 6ubbetneedednh oot oeuddeeesoesseecews 16

Powell v. Alabama, 287 U.S. 45 (1932) ............... 10

Reed v. State, 232 Ind. 68 (1953) ................... 17

Singer v. United States, 380 U.S. 24 (1965) ............ 13

Sizemore v. Commonwealth, 240 Ky. 279, 42 S.W.

Dt? tive peck wbdwetenedeneuee ces 14

State v. Ballenger, 202 S.C. 155, 24 S.E. 2d 175

i? eagusenedeksknvbs ake netbatbactsoseens 14

State v. Gilbert, 65 Idaho 210, 142 P.2d 584

tt shedddacehéadengduns Geebeoenecececens 14

State v. Hardy, 189 N.C. 799, 128 S.E. 152 (1925) ....... 14

State v. Hoyt, 47 Conn. 518 (1880) ................. 14

State v. Mayo, 42 Wash. 540, 85 Pac. 251 (1906) ......... 14

State v. Page, 21 Mo. 257 (18SS) ..........cccccccees 14

State v. Rogoway, 45 Or. 601, 78 Pac. 987, rehearing

Se GER e ee SE EU ED co cccccccccccecccecs 14

State v. Shehoudy, 45 N.M. 516, 118 P.2d 280

Dt: citedennoegesnkhe6560008606406606666 14

State v. Tighe, 27 Mont. 327, 71 Pac. 3(1902) ........... 14

State v. Verry, 36 Kan. 416, 13 Pac. 838 (1887) .......... 14

Stewart v. Commonwealth, 117 Pa. 378, 11 A.370

ee ee rn 14

Thomas v. District of Columbia, 90 F.2d 424 (D.C.

i cette he eee ee h wee oe 8 15,24

United States ex rel. Spears v Johnson, 327

F.Supp. 1021 (E.D. Pa., 1971) rev'd. 463 F.2d

EE re er ee 15

United States v. Walls, 443 F.2d 1220 (6th Cir.,

Dn cGusuvaddvaand sd andhee tebe uweseueeeen 15

Walker v. State, 133 Tex. Crim. 300, 110 S.W. 2d

DP eceanhucetevsudeuasdonnudcedeeesen 16

(iv)

Page

West v. United States, 399 F.2d 467 (Sth Cir.,

1968) cert. denied 393 U.S. 1102 (1969) ........... 17

Weaver v. State, 24 Ohio St. 584 (1874) ......... si 14

White v. Maryland, 373 U.S. 59 (1963) ............... 10

Williams v. State, 60 Ga. 363 (1898) ...............5.. 14

Wingo v. State, 62 Miss. 311 (1884) ................. 14

Word v. Commonwealth, 30 Va. (3 Leigh) 743

Di lcevh eke ss andthe en eeke hewn we 60406 13

Yeldell v. State, 100 Ale. 26, 14 So. 570 (1894) ......... 14

Yopps v. State, 228 Md. 204, 178 A.2d 879 (1962)....... 16

Constitutional Provisions:

Constitution of the United States

ee eS ee 14

ee 3, 13, 14,16

Fourteenth Amendment ...............05. 3, 15,16

Statutes:

Arkansas Statutes Annotated, Tit. 43, Ch. 21,

tie do oe ok be ka 6e bebe Oe ee’ 15

a oe eee ee eu ee 15

Connecticut General Statutes Annotated Tit. 54,

CN PTO TTT TTT TTT TT ee 15

Federal Rules of Criminal Procedure 23(c) .............. 19

Georgia Code Annotated, Tit. 27, ch. 27-22,

i ee he ed one ee a hen een sakesd 15

General Statutes of North Carolina, ch. 84, § 84-14

i ce ee ie ee ok e i be ties’ dee ks 15

Hawaii Revised Statutes, Tit. 37, Ch. 635, § 635-52

EE a ee ne re 15

Idaho Code Annotated, tit. 19, ch. 21, § 19-2101

Dn sGagadsannvabedebwes she nkankesceeedks 15

(v)

Page

Illinois Annotated Statutes, ch. 38, Tit. VI, § 115-4

SP Chacce naked keh kee awcdekoeni ‘tate 15

Indiana Code of Criminal Procedure, Proposed Final

Draft § 35-6.1-7-1(c)3 (September, 1972) ........... 15

lowa Code Annotated, tit. 36, ch. 780, § 780.6

Pe cewaketsui heed eehale ee eewendeweues 15

Kansas Statutes Annotated, ch. 22, art. 34,

OPT T OTe eet eT CeT eee 15

Kentucky Rules of Criminal Procedure 9.42 ............ 15

Maine Rules of Criminal Procedure 30(a)............... 15

Michigan Compiled Laws Annotated, ch. 768,

I i a ald ral ie AE ae 15

Minnesota Statutes Annotated, ch. 631, § 631.01

DP ¢cisien ee ce eb sous an eh due bee eestenans 15

Mississippi Code Annotated, tit. 99, Ch. 17

I a i at we 15

Missouri Annotated Statutes § 546.070 (1949) .......... 15

Nevada Revised Statutes, tit. 14, ch. 175, § 175.141

DD 66nd basen bene te wrnce keke be ekeuk 15

New Mexico Rules of Criminal Procedure 40 ........... 15

New York Criminal Procedure Law § 320.20 .. 2, 3, 7, 9, 12, 24

New York Penal Law

Section

(( -tet he oid aah be phde 6 abode debi eeueees 3

nant Binal gadetheus bas bo ehidset bation 3

tt Lind eee ai ee 66560 dd 666 se eee canes 3

inten cicaweue Mth buuehadieeceweues 3,5

North Dakota Century Code, tit. 29, ch. 29-21,

ET eh ee a as i 15

Ohio Revised Code Annotated, tit. 29, § 2945.10

a a ae re! yet eas eee 15

Oklahoma Statutes Annotated, tit. 22, §831 (1951)....... 15

(vi)

Page

Oregon Revised Statutes, ch. 17, §17.210 (1971) ........ 15

Revised Codes of Montana Annotated, tit. 95,

ee a ee ee 15

Revised Statutes of Nebraska, ch. 29, § 29-2016

USES Sere ay Ce Oe ee a a 15

South Dakota Compiled Laws Annotated, tit. 23,

I So gs oo en os obo abe cn 15

Texas Code of Criminal Procedure, art. 36, § 36.01

i sie ttece pins 660 aud os oo cd waewas 15

Title 28, United States Code §1257(2) ................ 2

Utah Code Annotated, tit. 77, §77-31-1(6) (1953) ........ 15

Wisconsin Statutes Annotated, tit. 47, ch. 972

Ee en 15

Wyoming Statutes, tit. 7, §7-228 (1957) .............. i)

Other Authorities:

Anno: Argument of Counsel, 38 A.L.R. 2d 1396

Dieu enwie ce cecs keds aeeue tek ce aki 16

Archibold, CRIMINAL PLEADING, EVIDENCE

AND PRACTICE (Butler & Garcia Ed. 1969) ........ 12

Gordon, Non-Jury Summations, 6 Am. Jur. Trials

a ne 21

Griswold, The Historical Development of Waiver of

Jury Trial in Criminal Cases, 20 Va. L. Rev. 655

a ee 13

Hilliard, ON NEW TRIALS (2nd Ed. 1866) ............ 13

ee 13

James, CRISIS IN THE COURTS (1967) ............ 19, 2]

Jenks, THE BOOK OF ENGLISH LAW (6th

ee eee 12

Jones, Ed., THE COURTS, THE PUBLIC AND THE

LAW EXPLOSION (1965) .................. 21,22

Kalven & Zeisel, THE AMERICAN JURY Sere 20

Katz, Municipal Courts—Another Urban Ill. 20 Case

West. L. Rev. 87(1968) ....................... 23

( vii)

Page

Orfield, CRIMINAL PROCEDURE FROM ARREST

RE Are hear oe ee ee 13

Powell, Jury Trial of Crimes, 23 Wash. & Lee

Se RY, LA Eee Oe m. e R 18

President’s Commission on Law Enforcement and

Administration of Justice, THE CHALLENGE

OF CRIME IN A FREE SOCIETY (1967) ........... 23

President’s Commission on Law Enforcement and

Administration of Justice, TASK FORCE RE-

PORT: THE COURTS (1967) ................. 20,

Puttkammer, ADMINISTRATION OF CRIMINAL

a rae ee es

REPORT OF THE NATIONAL ADVISORY COM-

MISSION ON CIVIL DISORDERS (Bantam Ed.,

Re ea ay ere cer ear ne a re

THE AUTOBIOGRAPHY OF MALCOLM X (Grove

CR ee

Thompson, TRIALS (1889) ....... ccc ccc ccc vccees

Wharton, CRIMINAL LAW AND PROCEDURE

SED cocceevscssceviscervevess

Wright, The Courts Have Failed the Poor, N.Y.

Times (Magazine), Mar. 9, 1969, p.26 .............

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

No. 73-6587

CLIFFORD HERRING,

Appellant,

NEW YORK,

Appellee.

APPEAL FROM THE APPELLATE DIVISION OF

THE SUPREME COURT OF THE STATE OF

NEW YORK, SECOND DEPARTMENT

BRIEF FOR APPELLANT

OPINION BELOW

The affirmance by the Appellate Division, Second

Department was without opinion and is reported at 43

A.D. 2d 816. The order of affirmance appears in the

printed appendix at page 98. On March 22, 1974, the

Appellate Division amended its remittitur to certify that

a constitutional question had been passed upon. This

order appears in the printed appendix at page 100.

Leave to appeal to the Court of Appeals was denied on

2

January 31, 1974, by Associate Judge Harold Stevens.

The certificate denying leave to appeal to the Court of

Appeals appears in the printed appendix at page 99. No

opinions have been rendered.

JURISDICTION

The judgment and order of the Appellate Division

was entered on December 24, 1973. Leave to appeal to

the Court of Appeals was denied on January 31, 1974.

Notice of appeal was filed in the Supreme Court of the

State of New York, Richmond County, the court

possessed of the record, on April 8, 1974. The appeal

was docketed on April 18, 1974 and _ probable

jurisdiction was noted by the Court on October 21,

1974. The jurisdiction of the Court is invoked pursuant

to Title 28 of the United States Code, Section 1257(2).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Amendment VI

* * +

United States Constitution, Amendment XIV,

Section |

* * *

New York Criminal Pr cedure Law, Section

320.20(3):

Non-jury trial, nature and conduct thereof.

3. The order of the trial must be as follows:

(a) The court may in its discretion permit the

parties to deliver opening addresses. If the court

3

grants such permission to one party it must grant

it to the other also. If both parties deliver opening

addresses, the people’s address must be delivered

first.

(b) The order in which evidence must or may

be offered by the respective parties is the same as

that applicable to a jury trial of an indictment as

prescribed in subdivisions five, six and seven of

Section 260.30.

(c) The court may in its discretion permit the

parties to deliver summations. If the court grants

permission to one party, it must grant it to the

other also. If both parties deliver summations, the

defendant’s summation must be delivered first.

(d) The court must then consider the case and

render a /erdict.

QUESTION PRESENTED

Whether Section 320.20(3)(c) of the New York

Criminal Procedure Law, which authorizes a trial judge

to prohibit closing argument in a non-jury trial is, on its

face and as applied, violative of the Due Process Clause

of the Fourteenth Amendment and the right to counsel

provision of the Sixth Amendment.

STATEMENT OF THE CASE

Charged with attempted robbery in the first and

third degrees and possession of a dangerous instru-

ment,’ appellant waived his right to a jury trial pursuant

to Section 320.10 of the New York Criminal Procedure

'New York Penal Law §§110.00/160.15; 110.00/160.05;

265.05.

4

Law and on February 3, 4 and 7, 1972, was tried

before a justice of the New York Supreme Court.

The People’s Case

On February 3, 1972, the testimony of Allen

Braxton, the complaining witness, was taken. Braxton

testified that on September 15, 1971, at about 6:00

p.m., he was outside his home, a housing project on

Staten Island, transferring some money from his pants

pocket to his wallet when appellant approached him

(App. 5, 6, 9, 15).? Appellant, whom he recognized

from the neighborhood, said in a soft voice ‘“[p] lease

give me some money, I am sick” (App. 7, 18, 35). When

Braxton refused, appellant took a knifeblade out

of his might pocket and flicked his right wrist at

Braxton, whereupon Braxton ran into his building

(App. 6, 19). The entire encounter lasted approximately

thirty seconds (App. 26).

Braxton immediately reported the incident to William

Stubbs, a family friend and New York City Housing

Authority Policeman (App. 9, 11, 24).

Following Braxton’s testimony, the case was ad-

journed until the following morning, February 4, 1972,

at which time William Stubbs testified. Stubbs, who had

been dismissed from the police force some time after

the incident in question, stated that he had known both

Braxton and appellant before the date of the alleged

incident but did not witness it himself (App. 51, 58).

Rather, he learned of it from Braxton at about 6:00

p.m. on the evening of September 15, 1971. About an

hour and a half later, while patrolling the area, he came

upon Braxton and appellant standing on opposite sides

*Numerical references preceded by “App.” are to the printed

appendix.

5

of one of the neighborhood streets (App. 52-54). When

Stubbs approached appellant and notified him of

Braxton’s accusation, appellant immediately denied

having attempted to rob Braxton and told Stubbs that

he had been working for a Mr. Taylor at the time

Braxton claimed appellant had tried to rob him (App.

54, 60). Stubbs placed appellant under arrest and found

a small knife blade on appellant’s person (App. 54,

55).?

The People then rested and the case was adjourned

over the weekend (App. 65, 68).

The Defense

On Monday morning, February 7, 1972, appellant’s

case was recessed until the afternoon to accommodate

the schedule of his employer, Donald Taylor (App.

71). At about two o’clock that afternoon, the case was

recalled and Mr. Taylor, the president of A & A Tank

Cleaning Company on Staten Island, testified that

on September 15, 1972, appellant was at work at 6:00

p.m. (App. 71, 73). Although unable to swear to the

exact time he had seen appellant on his premises that

day, Taylor did remember seeing him there at about

5:30 or 6:00 p.m. as well as later than 6:00 p.m. (App.

156, 157). He also remembered talking to appellant

sometime during the evening and before he left for

home at about 9:00 or 9:30 p.m. (App. 81). Less than an

hour later, appellant called him at home and said he had

been arrested (App. 81).

*At the end of the People’s case, the court dismissed the

charge of possession of a dangerous instrument on the grounds

that the blade was too small to fall within the purview of Penal

Law §265.05 (App. 66).

6

Appellant also took the stand and denied attempting

to rob Braxton. He stated that he had been at work

until at least 6:30 p.m., and pointed out that the shop

was some ten minutes away from Braxton’s home (App.

84-87). Appellant further testified that he had pre-

viously been Braxton’s next door neighbor and that on

occasion Braxton had asked him for money for drugs*

or wine. Indeed, each time appellant refused, Braxton

called him a name or threatened to “fix” him (App.

85-86).

The Verdict

After both sides had rested and a motion to dismiss

the charges was denied, defense counsel requested an

opportunity to make a closing argument, stating: “‘Well,

can I be heard somewhat on the facts?” The court,

relying specifically on the statute involved herein denied

his request, replying: “Under the new statute, sum-

mation is discretionary, and I choose not to hear

summations” (App. 92).

Eight minutes later, the court found appellant guilty

of attempted robbery in the third degree (App. 93). On

June 15, 1972, appellant was sentenced to an

indeterminate term of imprisonment with a maximum of

four years (App. 96).

The Appellate Division, Second Department, affirmed

the conviction without opinion on December 24, 1973

(App. 98). Leave to appeal to the Court of Appeals was

denied on January 31, 1974 (App. 99).

*Both appellant and Braxton admitted that they had used

narcotics (App. 41, 87).

;

SUMMARY OF ARGUMENT

I.

Section 320.20(3)(c) of New York’s Criminal

Procedure Law, which authorizes the court in a

non-jury trial to preclude closing argument, deprives a

defendant of his constitutional rights to be heard in his

own defense and to the effective assistance of counsel.

The right of a criminal defendant to be heard in his

own defense is inextricably entwined with his right to the

“guiding hand of counsel” at all critical stages of the

criminal process. The Court’s decisions in Brooks y.

Tennessee, 406 U.S. 605 (1972) and Ferguson vy. Georgia,

365 U.S. 570 (1961) establish that the professional skill

of a trained advocate is essential to the effective planning

of a defense and to the presentation in organized,

coherent and logical fashion, of the factual and legal side

of a defendant’s case and that statutes which abridge

counsel’s basic role will not pass constitutional muster.

Like the statutes struck down in Brooks and

Ferguson, section 320.20(3)(c) is unconstitutional

because it sanctions the denial of a defendant’s right to

the benefit of counsel’s skill in sifting, organizing and

presenting to the fact finder the strengths of his case

and the weaknesses of the prosecution’s evidence. It

thus deprives an accused of the “guiding hand of

counsel” at the critical fact-finding stage of the trial

process.

The statute is also at odds with the historical

development of closing argument within our adversary

8

system. Indeed, it runs counter to the overwhelming

weight of authority.

Closing argument, whether to a judge or jury,

diminishes the possibility of error in the fact-finding

process. While a judge has legal expertise, he does not

differ from a juror in his attentiveness or ability to

remember salient facts. The possibility of error may be

even greater in a bench trial because the jury’s

judgment, being collective, at least furnishes some

assurance of reliability. Where a judge sits alone,

without the benefit of summation, the issue of guilt or

innocence is relegated to the subjective impression

which he alone has garnered from the trial. In our

over-worked urban courts, preclusion of closing argu-

ment is especially threatening to the reliability of our

trial process. For in those courts, there is an

exacerbation of the risk that a verdict may result from

boredom, cynicism or time pressure, rather than from a

fair evaluation of the evidence.

The facts of this case underscore the importance of

closing argument in the non-jury trial. Testimony from

four witnesses was taken over a period of five days,

broken up by the weekend. One of the two

Prosecution witnesses did not witness the alleged

incident and the other, the complainant, was charged

by appellant with having a motive to be vindictive.

Appellant interposed an alibi, corroborated by his

employer, that he was at work at the time in question.

Absent summation, there was no guarantee that the

~

9

trial judge weighed the crucial aspects of the case with

his attention drawn to the weaknesses of the

prosecution’s evidence and the strengths of appellant’s

defense. The refusal to hear counsel thus stripped

appellant of his right to have his attorney utilize his

professional skills in presenting his case in its strongest

posture for consideration by the court. It thereby

diluted substantially his rights to be heard and to the

effective assistance of counsel.

ARGUMENT

POINT I

SECTION 320.20(3)\(c) OF THE NEW YORK

CRIMINAL PROCEDURE LAW, WHICH

AUTHORIZES A TRIAL JUDGE TO PRO-

HIBIT CLOSING ARGUMENT IN A NON-

JURY TRIAL IS, ON ITS FACE AND AS

APPLIED, VIOLATIVE OF THE DUE

PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT AND THE RIGHT TO

COUNSEL PROVISION OF THE SIXTH

AMENDMENT.

Section 320.20(3) (c) of New York’s recently enacted

Criminal Procedure Law* authorizes the judge in a

°N.Y.C.P.L. § 320.20 became effective on September 1, 1971

along with the entire Criminal Procedure Law. Prior to that date,

no statute governed ihe procedure of the non-jury trial.

10

non-jury trial to dispense with closing argument.

Invoking this statute, the trial court denied counsel’s

request to deliver a summation and thereby deprived

appellant of his due process righ. *o be heard as well as

his right to the effective assistance of counsel.

It is basic to our adversary system of criminal justice

that a defendant has a right to be heard on his own

behalf and that such right is inseparable from his right

to be heard by counsel at every critical Stage of the

criminal process.® Since Powell v. Alabama, 287 US.

45 (1932), wherever representation by counsel has been

ordained by the Court, it has been accompanied by the

recognition that counsel’s presence alone does not

necessarily guarantee the fairness required by the

Constitution. Rather, in the now classic words of Mr.

Justice Sutherland, an accused

requires the guiding hand of counsel at every step

in the proceedings against him. Without it, though

he be not guilty, he faces the danger of conviction

because he does not know how to establish his

innocence. If that be true of men of intelligence,

how much more true is it of the ignorant and

illiterate, or those of feeble intellect. If in any

case, civil or criminal, a state or federal court were -

arbitrarily to refuse to hear a party by counsel,

employed and appearing for him, it reasonably

may not be doubted that such refusal would be a

denial of a hearing and therefore of due process in

the constitutional sense. 287 U.S. at 69.

®Thus, since Gideon vy. Wainwright, 372 U.S. 335 (1963), the

Court has held that a defendant is entitled to counsel at a trial

for any crime punishable by imprisonment [Argersinger y.

Hamlin, 407 U.S. 25 ( 1972)]; at a preliminary hearing [Coleman

v. Alabama, 399 US. | (1970)]; at sentence [Mempa v. Rhay,

389 U.S. 128 (1967)]; at a guilty plea [White v. Marviland, 373

U.S. 559 (1963)]; and on appeal taken as a matter of right

[Douglas v. California, 372 U.S. 353 (1963)].

Relying on Powell, the Court has twice held state

Statutes which interfered with a defendant’s right to the

benefit of certain of counsel’s professional functions

during trial to be deprivations of the “guiding hand of

counsel”. Brooks v. Tennessee, 406 U.S. 605 (1972):

Ferguson vy. Georgia, 365 U.S. 570 (1961).

Brooks, which struck down a statute that required a

criminal defendant to be the first defense witness or

lose his right to testify, established that a defendant's

right to have his attorney plan and order the

presentation of such a critical aspect of his defense is

guaranteed by the Due Process Clause. 406 U.S. at 61 2,

613. New York’s statute, which permits a court to

foreclose closing argument, is at odds with Brooks’

sensitivity to the substantive meaning of the “guiding

hand” concept enunciated in Powell because it, too,

abridges defense counsel’s control over a critical aspect

of the defense—namely, his statement to the court of

the very theory of the defense, presented cogently by

virtue of his training, to convince the court to acquit

his client.

Ferguson is even more compelling, for the Court there

underscored the critical nature of an advocate’s role in

presenting factual data favorable to the defense to the

fact-finder in an ordered, coherent and complete

fashion. In striking down the Georgia statute which

precluded counsel from eliciting the defendant’s un-

sworn statement to the jury, the Court held that

without counsel’s “‘guiding hand” in the elicitation of

that sta‘ement, relevant and critical facts might not be

presented or might be presented incoherently or in a

confused manner at best. 365 U.S. at 591, 595 and

596.

12

Section 320.20(3) (c) conflicts with Ferguson in that

it sanctions a verdict based only on the judge’s

subjective view of the disjointed and unordered

segments of the trial evidence. It thus deprives the

accused of his basic right to have his defense presented

to the finder of fact by a skillful advocate trained to

articulate his side of the case in a coherent, organized

and complete argument, with due emphasis on the

factual and legal strengths of the defense case and the

weaknesses of the prosecution’s evidence. In a very real

sense, the statute deprives a defendant of the “guiding

hand of counsel’ at no less a critical stage of the

proceeding than did the Ferguson statute. In Ferguson,

counsel’s “guiding hand” was excised at the fact

elicitation stage of the trial. Here, it is excised at the

very threshold of the fact-finding stage. In constitu-

tional terms, this is a distinction without a difference

and Ferguson should be dispositive.

If Ferguson is not entirely dispositive, it surely

points the way to a result consistent not only with

constitutional doctrine but with the historical de-

velopment of the importance of closing argument

within our adversary system.’ For historically, it was

7While the English common law has little bearing on the

historical development of the right to closing argument in this

country, since a defendant charged with a felony in England was

prohibited from appearing with counsel until 1836, it is

nonetheless significant that in 1865, the right to deliver a closing

argument was statutorily recognized. The Criminal Procedure Act

of 1865 included the following provision: “Upon every

trial...whether the prisoners...or any of them shall be

defended by counsel or not...such prisoner or their counsel

shall be entitled ...when all the evidence is concluded to sum

up the evidence respectively.” Archibold, CRIMINAL PLEAD-

ING, EVIDENCE AND PRACTICE §558 (1969); Jenks, THE

BOOK OF ENGLISH LAW 74 (1967).

oe

13

virtually “‘the law of the land” that a defendant had a

right to have his attorney deliver a closing argument.®

This right developed primarily as a component of a

defendant’s right to counsel and was recognized well

before both the application of the Sixth Amendment’s

counsel provision to the States? and the Constitutional

sanctioning of the non-jury trial.'®

As early as 1827, the Supreme Court of Virginia

recognized that in the jury trial, even where there was

only one unimpeached prosecution witness and no

defense presentation, “it is the right of every party to

be heard by counsel on his whole case.” Word vy.

Commonwealth, 30 Va. (3 Leigh) 743, 759 (1827).

Other state courts readily followed suit, declaring that

the right to closing argument was protected by their in-

dividual constitutional provisions guaranteeing the

®Treatises on trial conduct written during the last century are

unanimous in stating that the right to counsel encompasses the

right to have counsel deliver a closing argument. E.g. Hilliard, ON

NEW TRIALS §40 (1866); | Thompson, TRIALS § §921, 955

(1889); 2 Hyatt, TRIALS §1450 (1924); 5 Wharton, CRIMI-

NAL LAW AND PROCEDURE § 2077 (1957).

*Gideon v. Wainwright, supra, n. 6, 372 US. 335.

Patton v. United States, 281 U.S. 276 (1930). While there

were instances of jury-trial waivers prior to Patton, they occurred

mainly during colonial times and by the end of the nineteenth

century were common only in Maryland and West Virginia See

Singer v. United States, 380 U.S. 24 (1965); Orfield, CRIMINAL

PROCEDURE FROM ARREST TO APPEAL 491 (1947);

Puttkammer, ADMINISTRATION OF CRIMINAL LAW 117

(1953); Griswold, The Historical Development of Waiver of Jury

Trial in Criminal Cases, 20 Va. L. Rev. 655 (1933-1934).

(EOE

14

right to counsel.'' Indeed, even prior to the Court’s

decision in Gideon, the Supreme Courts of Washington,

Oregon and Alabama considered closing argument to be

encompassed by both the federal and state constitu-

tional guarantees of counsel.'?

Today, the right to deliver a closing argument is

contested only in the context of the non-jury trial. But,

the weight of authority holds, nonetheless, that this

right is guaranteed by the Sixth Amendment’s counsel

provision or the Due Process Clause of the Fifth and

"Lynch v. State, 9 Ind. 541 (1857); People v. Green, 99 Cal.

564, 34 Pac. 231 (1893); People v. McMullen, 300 Ill. 383, 133

N.E. 328 (1921); Sizemore v. Commonwealth, 240 Ky. 279, 42

S.W. 2d 328 (1931); State v. Ballenger, 202 S.C. 155, 24 S.E. 2d

175 (1943); State v. Gilbert, 65 Idaho 210, 142 P.2d 584

(1943); State v. Hardy, 189 N.C. 799, 128 S.E. 152 (1925);

State v. Hoyt, 47 Conn. 518 (1880); State v. Page, 21 Mo. 257

(1855); State v. Shehoudy, 45 N.M. 516, 118 P. 2d 280 (1941);

State v. Tighe, 27 Mont. 327, 71 Pac. 3 (1902); State v. Verry,

36 Kan. 416, 13 Pac. 838 (1887); Stewart v. Commonwealth,

117 Pa. 378, 11 A. 370 (1887); Weaver v. State, 24 Ohio St. 584

(1874); Williams v. State, 60 Ga. 363 (1898); Wingo v. State, 62

Miss. 311 (1884). Most of these cases arose in the context of im-

proper limitations of counsel’s closing argument.

"State v. Mayo, 42 Wash. 540, 85 Pac. 251 (1906); State v.

Rogoway, 45 Or. 601, 78 Pac. 987; rehearing 45 Or. 611; 81

Pac. 234 (1904); Yeldell v. State, 100 Ala. 26, 14 So. 570

(1894).

— “Dea

— Ei EE 8 —@ 6

i

15

Fourteenth Amendments.'? Thus, in United States y.

Walls, 443 F.2d 1220 (6th Cir., 1971), the court held

that preclusion of closing argument in a non-jury trial

deprived a defendant of the effective assistance of

counsel. The same result was reached in Thomas y.

District of Columbia, 90 F.2d 424 (D.C. Cir.. 1937). In

United States ex rel. Spears v. Johnson, 327 F.Supp.

'’New York is the only state which, by statute, authorizes the

trial court in a non-jury trial to dispense with closing argument.

Although Indiana proposed a statute derived from and virtually

identical to the New York provision challenged here [Ind. Code

Crim. Proc., Proposed Final Draft §35-6.1-7-1(c)3 (Sept.,

1972)], it has not been enacted. Six make provision for closing

argument without distinction between the jury or non-jury trial.

See Ark. Stats. Ann., tit. 43, ch. 21, §43-2132 (1947); Cal.

Penal Code § 1093; Conn. Gen. Stats. Ann., tit. 54, ch. 96,

§ 54-88 (1958); Maine R. Crim. Proc. 30(a); Miss. Code Ann.., tit.

99, ch. 17, §99-17-11 (1972); Ohio Rev. Code Ann., tit. 29,

§ 2945.10 (1953). Others, as did New York prior to 1971,

provide for closing argument specifically in the jury trial and are

Silent as to the non-jury trial. See, Ga. Code

Ann., tit. 27, ch. 27-22, §27-2201 (1972), Hawaii Rev. Stats..

tit. 37, ch. 635 § 635-52 (Supp. 1972); Idaho Code Ann.., tit. 19,

ch. 21, § 19-2101 (1947); Ill. Ann. Stats., ch. 38, tit. VI, § 115-4

(1970); lowa Code Ann., tit. 36, ch. 780 § 780.6 (1946); Ky. R.

Crim. P. 9.42; Kan. Stats. Ann., ch. 22, art. 34, § 22-3414 (Supp.

1973); Mich. Comp. L. Ann., ch. 768, § 768.29 (1968); Minn.

Stats. Ann., ch. 31, § 631.01 (1947); Mo. Ann. Stats. § 546.070

(1949); Rev. Code Mont., tit. 95, § 95-1910 (1947); Rev. Stats.

Neb., ch. 29, § 29-2016 (1943); Nev. Rev. Stats., tit. 14, ch. 175,

§ 175.141 (1967); N.M.R. Crim. Proc. 40; Gen. Stats. N.C.. ch.

84, §84-14 (1963); N.D. Century Code, tit. 29, ch. 29-21,

§ 29-21-01 (1974); Okl. Stats. Ann., tit. 22, §831 (1951); Ore.

Rev. Stats., ch. 17, § 17.210 (1971): S.D. Comp. L. Ann., tit. 23,

§ 23-42-6 (1967); Tex. Code Crim. Proc., art. 36, § 36.01 (1966):

Utah Code Ann., tit. 77, § 77-31-1(6) (1953); Wis. Stats. Ann..

tit. 47, ch. 972, $972.10 (1971); Wyo. Stats., tit. 7. § 7-228

(1957). The remaining states do not make any specific provision

concerning closing argument.

16

1021 (E.D. Pa., 1971) rev'd. 463 F.2d 1024 (3rd Cir.,

1972).'* the court held preclusion of closing argument

a deprivation of due process.

Similarly, a majority of state courts faced with the

issue, pre- and post-Gideon, have held that the right of

an accused to be heard on the evidence in a non-jury

trial is guaranteed by either the Sixth or Fourteenth

Amendments. People v. Thomas, 390 Mich. 93, 210

N.W. 2d 776 (1973); Commonwealth v. McNair, 208

Pa. Super. 369, 222 A.2d 599 (1966); Commonwealth

y. Gambrell, 450 Pa. 290, 301 A.2d 596 (1973) [where

the right was recognized but deemed waived]; Yopps v.

State, 228 Md. 204, 178 A.2d 879 (1962); Floyd y.

State, 90 So.2d 105 (Fla. 1956); Olds v. Common-

wealth, 10 Ky. (3 Ak. Marsh) 465 (1821)."*

'4The court’s reversal was based upon a finding that the trial

court had not, in fact, prohibited counsel from presenting a

summation.

'STexas and Ohio in pre-Gideon decisions also confronted the

issue and held that the right to a non-jury trial summation was

guaranteed by their respective state constitutional gurantees of

the right to counsel. Walker v. State, 133 Tex. Crim. 300, 110

S.W. 2d 578 (1937); Ferguson v. State, 133 Tex. Crim. 250, 110

S.W. 2d 61 (1937); Anselin v. State, 72 Tex. Crim. 17, 160 S.W.

713 (1913); Decker v. State, 113 Ohio St. 512, 150 N.E. 74

(1925).

Additionally, although in civil cases courts have been less

strict in enforcing the right to closing argument [See Anno:

Argument of Counsel, 38 ALR. 2d 1396, 1401 (1954)}, two

states have held that the right to deliver a closing argument in

the civil non-jury trial is “absolute.” Callan v. Biermann, 194

Kan. 219, 398 P.2d 355 (1965); Aladdin Oil Burner Corp. v.

Morton, 117 N.J.L. 260, 187 A.350 (1936).

17

Most recently, the California Supreme Court held

that a juvenile tried before a court without a jury is

entitled to have his counsel deliver a closing argument.

In re F., 113 Cal. Rptr. 170, 520 P.2d 986 (1974). In

dicta, the court noted that a similar right was

compelled in non-jury adult criminal proceedings.'® The

court’s reasoning is applicable to both proceedings:

As there is a constitutional right to the assistance

of counsel to ascertain whether a juvenile has a

defense to a jurisdictional charge and to “prepare

and submit” a defense, it surely follows that

counsel would be precluded from discharging his

duties if, after all the testimony had been received,

a presentation of the defense was limited by the

denial of an opportunity, through argument, to

reconcile the testimony with the juvenile’s inno-

cence of the charges and attempts to persuade the

court to that view. The “guiding hand of counsel”

would thus be withdrawn at an important “step of

the proceedings against” the juvenile.'’

In re F., supra, 113 Cal. Rptr. at 173; 520

P.2d at 989.

'*This dicta is supported by People v. Douglas, 31 Cal. App.

3rd Supp. 26, 106 Cal. Rptr. 611 (App. Dept., 1973).

The following courts have declined to recognize the

right to present closing argument in the non-jury trial: West v.

United States, 399 F.2d 467 (Sth Cir., 1968) cert. den. 393 U.S.

1102 (1969); Casterlow v. State, 256 Ind. 214, 267 N_E. 2d 552

(1971); Reed v. State, 232 Ind. 68 (1953); People v. Manske,

399 Ill. 176, 77 N.E. 2d 164 (1948); People v. Berger, 284 Ill.

47, 119 N.E. 975 (1918); Lewis v. State, 11 Ga. App. 14, 74

S.E. 442 (1912). These courts have provided little elucidation of

their reasons for the adoption of this rule. Indeed, in Lewis v.

State, supra, no opinion was written. It is interesting to note,

however, that in People v. Manske, supra, the court declared that

as a general rule it was of the opinion that the court in a non-

jury trial should listen to the arguments of counsel, even when it

does not appear helpful. 399 Ill. 176 at 185, 77 N.E. 2d 164 at

170.

18

Il.

Preclusion of a defendant’s right to closing argument

in a non-jury trial not only seriously dilutes the role of

counsel in the presentation of the defense and thereby

deprives him of his basic right to be heard; it also

undermines the integrity of the fact-finding process and

enhances the possibility of error in the ultimate verdict

rendered. |

An appreciation of the fact-finding process in a

bench trial demonstrates that closing argument is

perhaps more crucial to the presentation of a defense

than in a jury trial. A judge does not differ

from individual jurors in his ability to retain and

assemble material which has come before him during

the days or possibly weeks of trial. Judicial training,

while affecting legal expertise, does not afford improved

ability to remember or to reconstruct facts accurately.

The fallibility of the human mind afflicts judges no less

than jurors.

Moreover, a jury, by definition makes a collective

judgment and, as Mr. Justice Powell has observed,

“It}his collective judgment tends to compensate for

individual shortcomings and furnishes some assurance of

a reliable decision.”” See Powell, Jury Trial of Crimes,

23 Wash. & Lee L. Rev. 1, 4 (1966). A judge, in

contrast, comes to his decision unaided by the

recollections or points of view of others. In the absence

of closing argument by the respective parties, the judge

receives no in-put at all into his decision-making process

that could minimize the possibility of a premature

decision, counterbalance any prejudice developed during

trial or alert him to possible error in his own

——— .

ee a

ere ise cam

19

recollection of the evidence. Closing argument, however,

diminishes the possibility of an erroneous verdict

resulting from these human frailties.'*

It is noteworthy that unlike the federal non-jury trial

where counsel can require the court to render fact

findings with its verdict'? and thereby obtain at least

some assurance that the fact-finder has considered the

factual material and evaluated it in toto, New York has

no comparable safeguard and thus the basis for the

court’s verdict is impenetrable. However, when the

judge in the non-jury trial is required to hear closing

arguments, at the very least, he must be attentive to the

facts presented by opposing counsel and weigh their

respective merits. Indeed, he may seek clarification of

‘That these problems are very real in the bench trial is well

illustrated in James, CRISIS IN THE COURTS 191, 192 (1967).

The author quotes Professor Zeisel’s statement that the theory

that judges can be as fair as a jury “assumes that judges are

perfect human beings ...an assumption that is unfortunately far

from the truth.” Similarly, James quotes Donald Ross, a

spokesman for the Milwaukee Defense Research Institute as

saying: “While a judge has special legal knowledge, he is still just

one person, filled with the prejudices and biases that are a part

of each one of us.” Finally, according to Jacob Fuchsberg,

former president of the American Trial Lawyers Association and

presently Associate Judge-Elect of the New York Court of

Appeals:

“Judges have no monopoly on intelligence, insight, or

fairness. They are ordinary human beings like anyone else.

I believe the opinions of 12 people are better than the

opinions of one—and | don’t care whether they are 12

lawyers, 12 judges or !2 laymen.

“When 12 people must come to a decision, the

prejudices that are inherent in most people get worked out

in the discussion that is involved.”

Fed. R. Crim. Proc. 23(c).

20

troublesome aspects of the case through questions

directed to counsel. In short, he would be unable to

rest solely on his subjective belief that his recollection

and understanding of the testimony was the only

accurate portrayal available.

At this point in our history, closing argument is also

of critical importance because of the tremendous

caseloads handled by our courts. Urban courts,

particularly, handle so enormous a volume of cases that

they are able neither to mete out prompt and certain

justice nor to give defendants the protections they

should have.2° Indeed, the Court has already recognized

that in the lower criminal courts which process most of

our criminal cases and which have a very high incidence

of non-jury trials, speed and not truth is often the

watchword.2! A judge may handle many cases in a

given day or week and may be too harried to give his

undivided attention to the trial before him.?? The

2President’s Commission on Law Enforcement and Admini-

stration of Justice, TASK FORCE REPORT: THE COURTS |!

(1967).

2! Argersinger v. Hamlin supra n.6, 407 U.S. 25 at 34-35.

TASK FORCE REPORT: THE COURTS supra n.19 at 55;

Kalven & Zeisel THE AMERICAN JURY 18 (1966).

2245 Dean Edward Barrett has observed of the lower criminal

courts:

“But if one enters the courthouse in any sizeable city

and walks from court room to court room, what does one

see? One judge, in a single morning, is accepting guilty

pleas from and sentencing a hundred or more persons

charged with drunkenness. Another judge is adjudicating

traffic cases with an average time of no more than a

minute per case. A third is disposing of a hundred or more

:

:

’

;

|

21

“case-hardened” judge may be inattentive for any

number of reasons.*? In such circumstances, closing

argument may too easily be dispensed with as a

time-saving device. Yet it is just such a situation which

most threatens the reliability of our fact-finding process

other misdemeanor offenses in a morning by granting

delays, accepting pleas of guilty and imposing sentences.

Whenever the visitor looks at the system he finds great

numbers of defendants being processed by harrassed and

overworked officials.

Jones, Ed., THE COURTS, THE PUBLIC

AND THE LAW EXPLOSION 87 (1965).

Indeed, inattentiveness has been ranked by one author as

one of the leading causes of incompetence within the judiciary.

Of the inattentive judges he writes:

These men have heard it all before, find judging boring,

or simply couldn’t care less. They lean back with their eyes

closed, read, doodle on a legal pad or stare out of the

window. I have watched some talk on the telephone or

hold whispered conversations with aids who want papers

signed while witnesses testify. And this has happened in

non-jury cases.

In Miami Fla., Judge T leaned back in his

chair with his eyes closed, his arms behind his head, as he

tried two men for running a bookie joint. A few minutes

later he admitted in open court he ‘wasn’t paying

attention’ to some of the evidence.

CRISIS IN THE COURTS, supra n. 18 at 7.

The same problem was also pointed out by the Hon. Myron

Gordon writing about the value of summation in the non-jury

trial:

Before counsel waives oral argument, he would do well

to consider whether the judge may have only appeared to

be listening to the witnesses but did not in fact hear them.

Counsel cannot really be sure that during the trial the

judge was not thinking of some other case (or perhaps

about his troublesome prostate).

Gordon, Non-Jury Summations,

6 Am. Jur. Trials 771, 777 (1967).

7

-~--

and which renders closing argument indispensable in a

trial process which is premised on the assumption that a

verdict will be based upon a fair evaluation of the

evidence and not result from cynicism, boredom or

pressure to move on to the next case.

Preclusion of closing argument also undermines the

integrity of the judicial system and the public attitude

toward it. When a trial judge, upon whom the public

looks as the representative of the legal order,?* refuses a

request to argue on behalf of an accused, it appears not

only to the defendant and his lawyer but to all in the

courtroom, that he is arbitrary, possibly prejudiced

against the defendant or has decided prematurely a mat-

ter which is gravely serious to those concerned. Because

society’s prevailing impression concerning the fairness of

our legal institutions depends almost entirely upon obser-

vation of the trial court’s integrity, humaneness and

efficiency,?* a statute sanctioning the appearance of

arbitrariness and prejudice can only do harm to that

™*THE COURTS, THE PUBLIC AND THE LAW

EXPLOSION, supra n. 22 at 125: TASK FORCE REPORT: THE

COURTS, supra n.20 at 65-66.

*°THE COURTS, THE PUBLIC AND THE LAW EX-

PLOSION, supra n. 22 at 125.

23

institution.*° As the late Mr. Justice Frankfurter has

written, “justice must satisfy the appearance of justice.”

Offutt v. United States, 348 U.S. 11, 14 (1954).

The facts in this case underscore the importance of

summation in the non-jury context. This was a trial

which involved four witnesses, consisted of three days

of testimony and extended over a five day period

broken up by a weekend. The defense not only

attacked the credibility of the complainant, who admitted

prior drug use and familiarity with appellant, but also

demonstrated a likely motive for Braxton to “fix”

appellant and interposed an alibi corroborated by his

employer that at the time of the crime he was at work.

The only rebuttal to the alibi was that the crime

occurred within walking distance of appellant’s place of

employment and it was possible for him to have

sneaked out to rob the complaining witness.

In short, the evidence was in sharp conflict and

before coming to its verdict the court had considerable

Indeed, many have observed the pervasive belief among the

impoverished and minority group residents of urban ghettos who

enter our courtrooms either as defendants or as relatives or

friends of the defendants, that justice is dispensed on an

assembly-line basis by judges who are of predominantly white,

middle-class backgrounds who are either unaware of their

problems, indifferent to them or actually hostile to them. See

REPORT OF THE NATIONAL ADVISORY COMMISSION ON

CIVIL DISORDERS 337 (Bantam Ed. 1968); Wright, The Courts

Have Failed the Poor, N.Y. Times (Magazine), March 9, 1969,

p. 26; President’s Commission on Law Enforcement and

Administration of Justice, THE CHALLENGE OF CRIME IN A

FREE SOCIETY 127, 128 (1967). Katz, Municipal Courts -

Another Urban Ill, 20 Case West. L. Rev. 87, 90-91, 110, 122

(1968); THE AUTOBIOGRAPHY OF MALCOLM X 149-150

(Grove Press Ed. 1966).

{/

24

detail to weigh. Appellant was entitled to have his

attorney utilize his professional skill in pointing out the

weaknesses in the prosecution’s case and in marshalling

the relevant and material evidence favorable to the

defense into a cogent argument on his behalf. Deprived

of this right, appellant was left to the mercy of the

judge’s subjective and impenetrable view of the case

delivered in the form of a guilty verdict eight minutes

after the close of the testimony.

In sum, Section 320.20(3)(c) of New York’s

Criminal Procedure Law disregards a fundamental tenet

of our jurisprudence—that closing argument is basic to

the concept of advocacy within our adversary system of

criminal justice. A defendant is entitled to have “the

guiding hand”’ of his attorney operate on his behalf in the

fullest sense until the trier of fact retires to deliberate.

Due process of law in this context can mean no less than

Daniel Webster’s often quoted phrase: ‘ta law which hears

before it condemns.”’?”

27See Thomas v. District of Columbia, 90 F.2d 424 at 428

(D.C. Cir., 1937).

+ Oe =

25

CONCLUSION

WHEREFORE, FOR THE FOREGOING

REASONS, APPELLANT PRAYS' THE

JUDGMENT BELOW BE REVERSED.

Respectfully submitted,

DIANA A. STEELE

WILLIAM E. HELLERSTEIN

The Legal Aid Society

119 Fifth Avenue

New York, New York 19003

Counsel for Appellant