Memorandum — United States v. Hale

No. 74-364

DAK JR., CLERK

a m

In the Supreme Court of the Hnited States

OCTOBER TERM, 1974

UNITED STATES OF AMERICA, PETITIONER \

Vv.

WILLIAM G. HALE

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

REPLY MEMORANDUM FOR THE UNITED STATES

ROBERT H. Bork,

Solicitor General,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the United States

OCTOBER TERM, 1974

No. 74-364

UNITED STATES OF AMERICA, PETITIONER

Vv.

WILLIAM G. HALE

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

REPLY MEMORANDUM FOR THE UNITED STATES

Respondent predicates his opposition to the petition in

this case on the ground that the ruling of the court of

appeals should be viewed as one of local District of

Columbia evidentiary law not suitable for review by this

Court. Contrary to respondent’s contention, however, the

court of appeals clearly based its holding in the instant

case solely upon the Fifth Amendment ground that “(t]he

prosecution may not * * * use at trial the fact that [the

defendant] stood mute or claimed his privilege in the

face of accusation.” Miranda v. Arizona, 384 U.S. 436,

468, n. 37. The court’s finding that “there was nothing

inconsistent between Hale’s silence in interrogation and

his alibi at trial” (Pet. App. 9A) was made in order

to distinguish Harris v. New York, 401 U.S. 222, which

held that a defendant could be impeached by prior in-

consistent utterances made at the time of arrest even

before the defendant was adequately apprised of his

Fifth Amendment rights.

(1)

2

The court of appeals never suggested that it even

could—much less that it did here—dispose of this case

on “local evidentiary pprinciples.”' In fact, the

court’s disposition of the government’s harmless error

contention makes clear that its ruling was based on fed-

eral constitutional grounds. Had the case been disposed

of upon “local evidentiary principles,” as respondent

suggests, the trial court’s cautionary instruction imme-

diately following the prosecutor’s question might have

Vitiated any error. The court below, however, refused

to find the error harmless, since “the error, being

of constitutional magnitude, must be harmless beyond a

reasonable doubt [citing Chapman v. California, 386

U.S. 18] (Pet. App. 13A; emphasis supplied).

Respondent contends, in effect, that this Court should

not review constitutional decisions of the highest

court of a State, including the United States Court of

Appeals for the District of Columbia Circuit sitting as

the highest court of the Dis‘rict, whenever the possi-

bility exists that such decisions could have been based

upon local law—regardless of the actual or stated basis

for the decision. This would, however, necessitate that

this Court engage in unguided speculation about the sub-

stance of local law. In the instant case, for example,

respondent merely hypothesizes that “local evidentiary

principles” could have been dispositive, although re-

spondent admits that “the District of Columbia has not

adopted the ‘per se’ rule in the tacit admissions

area” (Brief in Opposition at 8).

‘Indeed, as this Court acknowledged in Grunewald v. United

States, 353 U.S. 391, 423-424 (on which the court below rartly

relied and to which respondent refers):

{[T}he question whether a prior statement is _ sufficientiy

inconsistent to be allowed to go to the jury on the question

of credibility is usually within the discretion of the trial

judge. But where such evidentiary matter has grave constitu-

tional overtones, as it does here, we feel justified in exer-

cising this Court’s supervisory control * * *.

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3

An “adequate state ground” for a decision exists

only when it appears that reversal of the state court’s

ruling on the federal constitutional issue would not al-

ter its judgment, because the court also relied upon an

independent non-federal ground that is sufficient to

support its judgment. However, when a state court’s

decision discusses only a federal question and its judg-

ment is rested on that ground, this Court will not decline

review on the basis of speculation regarding an asserted

state ground. See, e.g., Poafpybitty v. Skelly Oil Co.,

390 U.S. 365, 375-376; Stern and Grpssman, Supreme

Court Practice 137-138 (4th ed.).

Since respondent advances no other ground for denial

of our petition, we suggest that respondent has in effect

conceded that the constitutional issues discussed and

ruled upon by the court of appeals, about which the

circuits are in sharp conflict, merit review by this Court.

For the reasons stated in our petition and this reply

memorandum, it is therefore respectfully submitted that

the petition for a writ of certiorari should be granted.

ROBERT H. Bork,

Solicitor General.

NOVEMBER 1974.

DOJ-1974-11