Appellants Reply Brief — Herring v. New York

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| Sugream Guert, 1. S.

FEB 21 1975

IN THE

Supreme Court of the Unite States. JRLLERK

October Term, 1974

No. 73-6587

CLIFFORD HERRING,

Appellant,

Vv

NEW YORK,

Appellee.

Appeal from the Appellate Division of the Supreme Court

of the State of New York, Second Department

REPLY BRIEF FOR APPELLANT

_ ans

Diana A. STEELE

Wim FE. HELuerstern

The Legal Aid Society

119 Fifth Avenue

New York, New York 10003

Counsel for Appellant

IN THE

Supreme Court of the United States

October Term, 1974

No. 73-6587

ooo

Currrorp HErrine,

Appellant,

v.

New York,

Appellee.

Appeal from the Appellate Division of the Supreme Court

of the State of New York, Second Department

ee

REPLY BRIEF FOR APPELLANT

ARGUMENT

Appellee’s argument that this case presents a

waiver issue is without merit.

The only issue on this appeal is the right of a criminal

defendant to closing argument in a non-jury trial. The

statute in question which gives the trial judge discretion

to preclude summations, assumes that there is no such

right, and pursuant to the trial court’s invocation of this

statute, appellant was dewied the right to summation. It

2

is disingenuous for the State to argue that this statute

which abridges the constitutional right to summation in

a non-jury trial, creates by its very existence a waiver of

the right abridged when, under another statute, the de-

fendant executes a waiver of a trial by jury. The under-

lying assumption of this argument is that the State may

reasonably condition the exercise of the statutory right to

a non-jury trial upon the waiver of the right to summation.

The argument ignores the fact that the constitutional right

to jury trial and the constitutional right to summation

are separate and distinct and also distorts well-developed

concepts of waiver.

While reasonable procedural regulations may be at-

tached to the defendant’s waiver of a jury trial, they may

concern only those matters which relate directly to the

waiver itself, such as the federal requirement that the court

. and prosecutor consent to the waiver or New York State’s

requirements of a written, court-approved waiver made in

open court. Cf. Singer v. United States, 380 U.S. 24, 35

(1965); see also Patton v. United States, 281 U.S. 276,

312-313 (1930). None of the procedures discussed in Singer

(380 U.S. at 36, 37) conditioned the waiver of a jury upon

the defendant’s waiver of an independent constitutional

right, and the State’s ‘legitimate interest’’ in insisting on

a jury trial (Singer v. United States, 380 U.S. at 36) does

not entitle it to impose such a condition. Once a defendant

meets the reasonable procedural requirements for jury

waiver as set forth in section 320.10, he has the right under

New York law to be tried by the court. He cannot be

penalized for exercising that right by being deprived of

the right to be heard by counsel. Compare Green v. United

3

States, 355 U.S. 184, 194 (1954) (conditioning the exercise

of the statutory right of appeal upon ‘‘waiver’’ of a valid

plea of double jeopardy) ; see also North Carolina v. Pearce,

395 U.S. 711, 724-725 (1969) (imposing a penalty upon

defendant for successful pursuit of statutory right to

appeal). Where the State seeks to impose such an uncon-

stitutional condition, as is implicit in appellee’s argument,

then the litigant’s forced acceptance of the condition cannot

operate as a waiver of his constitutional objection.

‘‘Were it otherwise, as conduct under duress in-

volves a choice, it always would be possible for a State

lv impose an unconstitutional burden by the threat of

penalties worse than it in case of failure to accept it,

and then to declare the acceptance voluntary * * *.’’

Garrity v. New Jersey, 385 U.S. 493, 498 (1967), quoting

from Union Pac. R.R. Co. v. Pub. Service Comm., 248

U.S. 67, 69 (1918).

Appellant’s choice of a non-jury trial did not, therefore,

waive his right to object to the denial of summation.

Even if the State may condition waiver of a jury trial

upon the waiver of the right to summation, no such waiver

could be gleaned from this record. The existence of a

statute which incorrectly provides that a constitutional

right does not exist does not amount to a waiver of a fed-

eral constitutional right. Since, as demonstrated in our

brief in chief, a defendant’s right to have his attorney

deliver a closing argument is essential to a fair criminal

trial, the ‘‘strict standard’’ of establishing an ‘intentional

relinquishment or abandonment of a known right or priv-

ilege’’ is applicable. Schneckloth v. Bustamonte, 412 U.S.

218, 241 (1973) ; Johnson v. Zerbst, 304 U.S. 458, 464 (1937).

Brookhart vy. Janis, 384 U.S. 1 (1965). Inherent in this

4

standard is the precept that waiver will not be presumed

from a silent record but, rather, that every reasonable

presumption against waiver will be indulged. Carnley v.

Cochran, 369 U.S. 506, 516 (1962); Glasser v. United States,

315 U.S. 60, 70 (1941).

Indeed, even absent such presumptions against waiver,

counsel’s request to deliver a closing argument must dispel

any thought that the right had been intentionally waived.

The first and only explicit reference to closing argument

on this record occurs at the close of the defense when coun-

sel asked to be heard in spite of the court’s statement that

it would not hear summation.’ It was only at that time

that the court revealed to appellant that section 320.20(3)

(c) deprived him of the right to have his attorney make a

closing argument. All prior discussions between the court

and appellant concerning the consequences of appellant’s

waiver of a jury trial did not extend beyond the waiver

of the jury itself. Similarly, the document which appel-

lant signed recited only that he waived a jury trial with

‘*full understanding of the rights which I waive hereby.’

Furthermore, given the statutory framework here, the

suggestion of waiver appears to be one made of whole

cloth by counsel for the State and the District Attorney.

Contrary to the State’s argument that the existence of

section 320.20(3)(c) gives notice to a defendant that his

waiver of a jury trial also waives his absolute right to

summation, this statute simply gives warning that the con-

1. App. 92.

2. Brief of Attorney General, App. B at 24-26.

3. Brief of Attorney General, App. C at 30.

5

stitutional deprivation may occur, not that it may not be

objected to. At the same time the New York State Legis-

lature enacted section 320.20(3)(c), it also enacted an iden-

tical provision applicable to non-jury misdemeanor trials,

N.Y.C.P.L. §350.10(3)(c), which governs misdemeanor

trials in which there is often no right to a jury trial. Thus

the New York rule that there is no right to summation in a

non-jury case operates whether the non-jury trial is the

result of a waiver or the result of a lack of entitlement to a

jury. Consequently, counsel could—and did here—reason-

ably conclude that his client’s waiver of the jury right did

not subsume a waiver of his objection to the constitutional

deprivation.

In sum, the only waiver which operated in this case

was appellant’s waiver of a jury trial. There was no waiver

of the right to summation in a non-jury case because the

State never afforded appellant that right, because such

a waiver would constitute an improper condition upon his

exercise of his statutory right to forego a jury, and be-

cause the record conclusively refutes the existence of an

intentional relinquishment by appellant or his counsel of

the right. To contend that appellant somehow tacitly

waived his separate constitutional right to closing argu-

ment by his affirmative waiver of his right to jury trial

finds no support in the statutory scheme, in the record,

in the law of waiver or in common sense.

4. Baldwin v. New York, 399 U.S. 66 (1970).

Conclusion

Wherefore, for the foregoing reasons, appellant

prays the judgment below be reversed.

Respectfully submitted,

Diana A. STEELE

WuuuM FE. Hevuerstern

The Legal Aid Society

119 Fifth Avenue

New York, New York 10003

Counsel for Appellant