# Appendix — United States v. Agurs > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1121%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1976 - **Citation:** 427 U.S. 97 ## Text Supreme Court, U. & > FILED a —SAN £31976 | MICHAEL RODAK, JR., CLERK Supreme Court of the United States OCTOBER TERM, 1975 APPENDIX No. 75-491 UNITED STATES OF AMERICA, Petitioner —l'.— LINDA AGURS ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA PETITION FOR CERTIORARI FILED SEPTEMBER 29, 1975 CERTIORARI GRANTED NOVEMBER 17, 1975 Supreme Court of the United States OCTOBER TERM, 1975 No. 75-491 UNITED STATES OF AMERICA, Petitioner — LINDA AGURS ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CONTENTS OF INDEX * Page RE RR a 1-5 RES ICS IGE A pa vn ar a OS DOC 6 Calendar Call of ici i 7-12 Transcript of Respondent’s Trial —........00.00000-0000....... ialsbiameiaiae 13-140 Transcript of Post Trial Hearing of July 24, 1978 ............... 141-156 Judge Robinson’s Order of July 24, 1973 ~........0000000ee.n.. 157 Motion of Respondent’s Trial Counsel for Consideration of Appointment of Substitute Counsel 158-164 Transcript of Post Trial Hearing of April 17, 1974... _......165-187 Judge Robinson’s Order of May 7, 1974. saan ...188-190 Affidavit of Respondent’ s Trial Counsel filed om Respond- ent’s brief in the Court of Appeals ...... 1 OR SE 191 Order Allowing Certiorari.......................... SE eres 192 * The opinion of the court of appeals below, the statement of five judges below dissenting from the denial of the government’s petition for rehearing en banc, and Judge Leventhal’s statement on why he voted against rehearing en banc, are contained in the Petition for Certiorari. Ee DOCKET ENTRIES CRIMINAL DOCKET UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Cr. No. 2081-71 UNITED STATES v8. LINDA V. AGURS DATE PROCEEDINGS 1972 Apr. 27 Called for trial; deft not present; trial con- tinued. ROBINSON, J Rep-D. Spencer Robert Gas- ton, Atty Jun. 28 Motion for issuance of subpoena, GRANTED. Jul. Jul. Jul. Jul. ROBINSON, J. 5 Jury and 2 alts. sworn; trial begun; respited until 7-6-72 at 9:30 a.m. Remanded to custody, ROBINSON, J. Rep: D. Spencer R. Gaston, Atty. 6 Juror No. 9. Bessie R. Jordan excused; Alt. Juror No. 1, Carrie M. McCrae takes seat No. 9 in jury box: Trial resumed; respited until 7-7-72 at 10:00 A.M.; rem. Reporter—D. Spencer; Robert T. Gaston; ATTY; ROBINSON, J. 6 Motion for issuance of subpoena-GRANTED- ROBINSON, J. 7 Trial resumed; same jury: Alt. Juror excused; VERDICT: GUILTY AS CHARGED; Jury polled & discharged; referred; remanded to custody. Note from jury filed. Accommodations for lunch or- dered & issued for 12 Jurors & 2 Deputy Marshals. ROBINSON, J. Rep-D.Spencer Robert T. Gaston, Atty (1) 2 ‘DATE PROCEEDINGS Oct. 20 SENTENCE: (Mur. II) Five (5) years to Twenty (20) years; Remanded to custody Judgment and Commitment. ROBINSON, J. Rep: D. Spencer R. Gaston, atty. Oct. 20 Notice of appeal from sentence of OCT. 20, 1972. Oct. 25 Copy of docket entries sent to USCA & US Atty. Copies of notice of appeal sent to USCA, US Atty, Atty, and deft. Oct. 20 Notice of appeal from sentence of 10-20-72. (error) Oct. 27 Authorization for transcript of trial on July 5, 6 & 7. ROBINSON, J. #45741. Nov. 13 Certified copy of ORDER USCA dated 11-13-72 appointing Robert T. Gastor & directing Clerk of District Court to transmit the record as promptly after the filing of transcripts as business of office permits. Nov. 20 Record on appeal delivered to USCA; In forma pauperis (Clerk’s fee $1.00) Receipt from USCA for original record 1973 Jan. 30 TRANSCRIPT of proceedings of 7-5-72; pages 1-48; Court’s copy: Rep-D.Spencer TRANSCRIPT of proceedings of 7-6-72; pages 49-157; Court’s copy; Rep-D.Spencer TRANSCRIPT of proceedings of 7-7- 72; pages 158-191; Court’s copy; Rep-D.Spencer Feb. 1 Supplemental record on appeal delivered to USCA; receipt acknowledged. , Feb. 5 Letter dated 1-16-72 in the nature of Motion for reduction of sentence, FIAT. ROBINSON, J. Feb. 7 Motion for new trial; ¢/s; p/a. DATE PROCEEDINGS Feb. 20 Government Opposition to motion for new trial; Attachment 1; c/s (Attachment 2 to be attached when obtained ) Feb. 28 ORDER denying motion of deft for new trial without prejudice. (N) ROBINSON, J. Mar. 12 MOTION for reconsideration of motion for new trial; ¢/s; p/s. Mar. 30 ORDER denying motion of deft for reconsidera- tion of motion for new trial. (N) ROBINSON, J. Jul. 24 MOTION of Defendant for new trial; Defend- ant’s presence waived; heard & denied. ORDER deny- ing Defendant’s motion for new trial. (N) Exhibit of Defendant to motion for new trial, filed. ROBIN- SON, J. Rep-D. Spencer Robert T. Gaston, Atty Aug. 3 NOTICE of appeal from denial of deft’s. motion for new trial. Aug. 3 COPY of docket entries sent to USCA & US Atty. Copies of notice of appeal sent to USCA, US Atty, Atty, and Deft. Aug. 6 RECORD returned from USCA; receipt ac- knowledged. Aug. 7 ORDER authorizing transcript of motion for new trial on 7/24/73. (Spencer) ROBINSON, J. #100751 Sept. 4 RECORD ON APPEAL delivered to USCA; re- ceipt acknowledged. Sep. 24 TRANSCRIPT OF PROCEEDINGS of July 24, 1973; Pages 1-23; Court copy; Rep-D.Spencer Sep. 27 SUPPLEMENTAL RECORD ON APPEAL de- livered to USCA; receipt acknowledged. Nov. 7 CERTIFIED copy of Order USCA 11-5-73 ap- pointing Robert Gaston. 4 DATE PROCEEDINGS 1974 Jan. 18 CERTIFIED copy of Order entered USCA 1-16-74 vacating Robert T. Gaston and appointing Sherman Cohn as counsel. Feb. 22 MOTION for new trial; P’/A; Affidavit and at- tachment; C'S MOTION for Order permitting stu- dent counsel to argue Motion for new trial; P/A; Attachment (2); C/S Mar. 8 ORDER authorizing transcript of Calendar Call on 1-10-72. (Rep: D.Spencer) +137125 ROBINSON, J. Mar. 12 OPPOSITION of Government to Motion for New Trial; C/S Mar. 18 REPLY to Opposition to Motion for new trial; Cs Mar. 25 TRANSCRIPT OF PROCEEDINGS of 1-10- 72; Pages 1-8; Court copy; Rep-D.W.Spencer Mar. 27 PRAECIPE entering appearance of Edwin J. Bradley as Co-Counsel with court-appointed counsel in U.S. C. A. Apr. 1 SUPPLEMENTAL RECORD ON APPEAL de- livered to USCA; receipt acknowledged. Apr. 12 PETITION for Writ of Habeas Corpus ad Prosequendum for defendant (FIAT). BRYANT, J. FINDINGS, Order and Writ of Habeas Corpus ad Prosequendum to Federal Reformatory for Women. Alderson, W. Va. for defendant for 4/17/74. (N) BRYANT, J. Apr. 17 MOTION for new trial, heard & taken under advisement; (defendant not present). ROBINSON, J. Rep-G.Fedoration E.J.Bradiey, A.Rubenstein & R.T. Gaston, Attys DATE PROCEEDINGS May 7 ORDER denying defendant’s motion for new trial. (N) ROBINSON, J. May 17 NOTICE OF APPEAL from Order denying motion for a new trial of 5-7-74. May 17 Copy of Notice of Appeal to USCA and U. S. Attorney. Copy of docket entries to USCA, U. S. Attorney, Attorney and Defendant. May 20 ORDER authorizing transcript of motion for new trial on 4-17-74. ROBINSON, J. Rep. G. Fedora- tion No. 137116 May 30 CERTIFIED copy of Order USCA dated 5-29- 74, appointing Sherman Cohn as counsel for defend- ant, and directing Clerk of District Court to trans- mit the record as promptly after filing of transcript as business of office permits. CERTIFIED copy of Order USCA dated 5-29-74, consolidating No’s 72- 2072, 73-1956 and 74-1542 for al purposes. Jun. 18 TRANSCRIPT OF PROCEEDINGS of 4/17/ 74; pages 1 thru 33; Court’s copy. (Reporter E. T. Fedoration ) 6 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Holding a Criminal Term Grand Jury Sworn in on October 6, 1971 Criminal No. Grand Jury Original THE UNITED STATES OF AMERICA v. LINDA V. AGURS Violation: 22 D. C. Code 2403 (Second Degree Murder) The Grand Jury charges: On or about September 24, 1971, within the District of Columbia, Linda V. Agurs, with malice aforethought, did stab, James T. Sewell, with a knife, thereby causing in- juries from which the said James T. Sewell did die on or about September 24, 1971. A TRUE BILL: Foreman. Attorney of the United States in and for the District of Columbia Copy for: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Criminal No. 2081-71 ~ UNITED STATES OF AMERICA vs, LINDA V. AGURS, DEFENDANT January 10, 1972 Washington, D.C. Calendar Call and Bond Review Hearing held before the Honorable AUBREY E. ROBINSON, JR., United States District Judge. APPEARANCES: JOHN O’B. CLARKE, Esq. Assistant United States Attorney For the Government ROBERT T. GASTON, Esq. For the Defendant DOYNE W. SPENCER Official Reporter [2] PROCEEDINGS THE DEPUTY CLERK: Linda V. Agurs, Criminal Action 2081-71. (Defendant present. ) THE COURT: This is on for bond review, is that correct, Mr. Gaston? MR. GASTON: That is correct, Your Honor. - As to the question of bond, Your Honor, while there have been some problems with Mrs. Agurs before with 8 regard to leaving the half-way house, she has been a life- time resident of the D. C. area and she has practically all of her relatives living in the area, and when she did leave the halfway house, she didn’t actually leave the area. Furthermore, as to the evidence in the case, I think that Mr. Clarke would agree that there is a substantial defense in the case of self-defense. I personally believe the Gov- ernment’s case is quite weak. I have discussed the matter with Mr. Clark at some length, and that conference with him hasn’t changed my opinion at all in that regard. THE COURT: I don’t have in my possession a Bail Agency report. MR. CLARKE: Your Honor, I have a Bail Agency report. THE COURT: Could I see it. MR. CLARKE: Which goes back to September 27th. {3} I will pass it up to the Court. THE COURT: Would you, please. What is the prospect of any employment? Do you want to be heard in this matter, Mr. Clarke? MR. CLARKE: Your Honor, I would ask that the de- fendant, if released, be given conditions that would ensure the safety of the community besides her appearance at trial. Those conditions being that she not be allowed to leave the metropolitan area; that she obtain employment; and, also, I would ask that the Court consider work re- lease for this defendant. MR. GASTON: Your Honor, the defendant has ad- vised me that she can obtain employment within a day or two. THE COURT: What was the relationship between the decedent and this defendant? MR. CLARKE: Your Honor, apparently this was, I guess the easiest way to say it would be a prostitute-John relationship. They registered at a tourist home as Mr. and Mrs., and a couple of minutes after they had regis- tered, the altercation broke out from which the decedent died. We do not know if there was any friendship relation- ship besides their registering at that time. 9 MR. GASTON: Your Honor, if I may, I would like to point out one strong piece of evidence, or the most strong piece of evidence towards self-defense. That is, the person [4] who was running the tourist home was hearing screams of help from Mrs. Agurs, and he went to the door of the room and the screams for help continued. Because no one opened the door, he then broke it down and he found the deceased on top of Miss Agurs on the bed struggling over the knife in the matter, and she was still —" “help” while he was still standing outside the oor. I think there is other evidence of self-defense, but that is about the strongest piece of evidence of it. MR. CLARKE: Your Honor, I might point out to the Court, as defense counsel knows, the decedent was holding the blade of the knife, whereas the defendant was holding the handle of the knife. THE COURT: Where would the defendant live if she were released? THE DEFENDANT: My sister. THE COURT: The same place you were living before on L Street? THE DEFENDANT: Yes, sir. THE COURT: When you were on narcotics, was it heroin? THE DEFENDANT: Yes, sir. THE COURT: You went right back to it when you left the half-way house, is that right? THE DEFENDANT: Every now and then. I didn’t have [5] no habit. THE COURT: How long will it take to try this case? MR. CLARKE: Your Honor, I anticipate at least two days. THE COURT: What is your estimate, Mr. Gaston? MR. GASTON: That would seem to be sufficient, Your Honor. Perhaps two and a half. THE COURT: I think she is entitled to her release. She will live at 807 L Street with her sisters. Employ- ment within ten days. Not to leave the Metropolitan Washington Area, and undergo narcotics surveillance. Any positive test for any kind of narcotics will bring you 10 right back here, Miss Agurs, right bacx here, and I am going to revoke the bond at that point, and you will await trial in jail if you bother with narcotics. Now, she will have to contact the bail agency at least once a week by telephone and her lawyer once a week by telephone so he can get this case ready for trial. Mr. Clarke, you wanted to say something? MR. CLARKE: Your Honor, you have covered the condition I was about to offer. THE COURT: If you prepare such an order, Mr. Gaston, and explain it to Miss Agurs very carefully, I will sign it. MR. GASTON: Yes, Your Honor. [6] In addition, we are here for a hearing on motions today. There are no motions to be filed. As I stated earlier, I had a rather lengthy discussion with Mr. Clarke and we have reached a substantial agreement as to discov- ery matters, and I was wondering if we might place that agreement on the record at this time. THE COURT: If it is necessary. Have you had all of the discovery you want? MR. GASTON: Well, not all, Your Honor, primarily because Mr. Clarke does not have it all in his possession at this time, such as photographs and things of that nature, physical evidence. But he has indicated his will- ingness to turn them over to me upon his receipt. THE COURT: It has been this Court’s experience we have never had a problem in that regard. MR. GASTON: I have never had any, Your Honor. THE COURT: If you have any, let me know. MR. GASTON: Yes, Your Honor. Mr. Clarke has also agreed to hand me the grand jury minutes one week be- fore trial. Is that not right, Mr. Clarke? MR. CLARKE: Yes, Your Honor. Your Honor, I might also point out that I have sent defense counsel a copy of the autopsy. MR. GASTON: Then I will make this out. THE COURT: If you will, I will pass the matter [7] until you do. (At this point the Court proceeds momentarily with other business. ) 11 THE COURT: Have Miss Agurs come up. (The detendant comes to the podium.) THE COURT: Now, when you get a job, you are supposed to notify the bail agency right away so that they know who your employer is. Do you understand that? THE DEFENDANT: Yes, sir. THE COURT: And tell Mr. Gaston, also. THE DEFENDANT: Yes, sir. THE COURT: Now, if you violate any of the condi- tions of your release, back you come. And that includes —_ arrested for anything else. Do you understand that! THE DEFENDANT: Yes, sir. THE COURT: If you fail to show when you get notice, now, notice is going to be sent to you at 807 L Street, and that is Apartment 2, is it not? THE DEFENDANT: Yes, sir. THE COURT: That is where the notices are going to go to you. So you look at your mail every day, because there will be a notice when you are to come back here for trial. And if you fail to appear after you are notified, that might get you five years in jail without regard to this second degree murder business. [8] Do you understand that? THE DEFENDANT: Yes, sir. THE COURT: I think you do. I think you do. I have ordered that you keep in touch with Mr. Gaston so he can prepare to defend you in this case. He can’t do it by himself. Do you understand? THE DEFENDANT: Yes, sir. THE COURT: Allegedly you were there with the de- cedent. Mr. Gaston was not. And you have got to help him in order to help yourself. That is the only way he can do his job. (Whereupon the hearing was concluded. ) 12 REPORTER’S CERTIFICATE This record is certified by the undersigned Official Re- porter of the United States District Court for the District of Columbia to be the official transcript of the proceedings indicated. /s/ Doyne W. Spencer DOYNE W. SPENCER 13 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Criminal No. 2081-71 UNITED STATES OF AMERICA vs. LINDA V. AGURS, DEFENDANT Wednesday, July 5, 1972 Washington, D.C. Trial before The Honorable AUBREY E. ROBINSON, JR., United States District Judge, and a jury. APPEARANCES: JOHN O’B. CLARKE, Esq. Assistant United States Attorney For the Government ROBERT T. GASTON, Esq. For the Defendant CONTENTS WITNESS Direct Cross Redirect Recross Willetta Sewell 6 17 21 21 Lawrence E. Smith 24 40 45 EXHIBIT Identified Admitted Into Evidence Government Nos. 1-7 6 1 No. 8 23 23 No.9 24 No. 10 27 Nos. 11-13 34 No. 1 43 14 [3] PROCEEDINGS (The trial commenced at 2:05 p.m.) MR. CLARKE: Your Honor, the Government is ready to proceed in the Agurs case. THE COURT: Mr. Gaston. MR. GASTON: The defense is ready, Your Honor, as soon as my client is brought out. Also, I have a couple of preliminary matters that I wou'd like to bring out at this time. THE DEPUTY CLERK: Linda V. Agurs, Criminal Action 2081-71. ‘The defendant enters the courtroom. ) MR. CLARKE: Your Honor, may the record reflect that I have given to defense counsel a copy of all Jencks Act material in this case, including the statement counsel indicated was exculpatory. MR. GASTON: I have received those items, Your Honor, at this time. I have not had a chance to read them yet. The first matter which I wanted to discuss is the fact that there is some evidence of narcotics use on the fringes of this case. I don’t see how it is at all probative, and I think it would be quite prejudicial to the defendant if statements concerning that use were admitted into evi- dence. In talking to Mr. Clarke, it is my impression that he does not intend to have that brought out in the presence of {4] the jury, but I wou'd either like a stipulation from him at this time to that effect, or I would like to make an objection to any such statements in the presence of the jury. THE COURT: I don’t understand what you mean, a stipulation. The Government knows what is probitive and what isn’t, and I will rule on any objection made. MR. GASTON: Once the statement comes out in ques- tion— THE COURT: Mr. Gaston, don’t argue with me dur- ing the course of this trial. If it is not relevant, the Gov- 15 ernment has already indicated it has nothing to do with this case and there will be no evidence. You make any objection to any question that suggests it. We have no problems at all with regard to it. MR. GASTON: All right. The other item, Your Honor, is that the defendant, Miss Agurs, according to my information, does have a prior conviction, an unauthorized use of a motor vehicle. I believe it was in 1970. It’s a Louck question. I realize that the new statutes permits that to be brought out for impeachment purposes, and perhaps Your Honor would like to delay—I would argue that that statute is unconstitutional, and the grounds for keeping it out would be based on the Louck and Gordon cases. [5] Perhaps that could, if Your Honor wanted to wait until after the Government’s case or now. MR. CLARKE: Your Honor, I might add that al- though the defendant was initially charged with unauthor- ized use of a motor vehicle, there was a conviction of at- tempted unauthorized use of motor vehicle. This would fall under the misdemeanor section of the new Louck Statutes, and on past decisions, unauthorized use of a motor vehicle does not go to honesty. Therefore, the Gov- ernment would not seek to introduce this as impeachment. THE COURT: No problem. This is straight second degree murder, uncomplicated as far as evidentuary prob- lems are concerned. All right. Is there anything else? MR. CLARKE: No, Your Honor. THE COURT: Let’s get the jury panel down. (Voir dire examination of jury panel and the open- ing statements not transcribed. ) MR. CLARKE: With the Court’s permission, the Gov- ernment will call Mrs. Willetta Sewell. Your Honor, in order to save time, I would ask that the following articles be marked for identification as Govern- ment exhibit numbers 1 through 7. 16 THE DEPUTY CLERK: Government Exhibit Num- bers 1 through 7 marked for identification. [6] (Government Exhibit Numbers 1 through 7 were marked for identification. ) Whereupon, WILLETTA SEWELL was called as a witness and, having been first duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. CLARKE: Q. With the Court’s permission, will you please state your name, and speak loudly so everybody can hear you. Will you spell your name for the Court Reporter. A. Willetta Sewell. Q. Is that Miss or Mrs? A. Mrs. Q. Mrs. Sewell, are you familiar with an individual by the name of James T. Sewell? A. He was my husband. Q. When was the last time that you saw your husband alive? A. About a quarter of three. Q. What day? A. September 24, 1971. Q. Going back to that day, September 24, 1971, about what time was it in the day or night that you first saw your husband? {7} A. Between ten thirty and eleven o’clock. Q. Do you know where your husband was working during that couple of days before and on that day, if any place? A. He was working at the George Washington Univer- sity Hospital in the housekeeping department. He was off on that Friday. Q. Friday would be September 24th? A. Yes, it was. 17 Q. Going back to that day again, where was it that you first saw your husband on that day, and what time was that again? A. Down at 14th and New York Avenue, Northwest. It was between ten thirty and eleven. We were down at the Holloway Restaurant. Q. Is that in the morning? A. Yes, we were down at the Holloway Restaurant there on the corner of 14th and New York Avenue. Q. Were you and your husband living together at that point? A. No, we was not. Q. Were you or your husband going any place that day? A. Yes, we were. . Where was that? A. Well, we went shopping and we were supposed to be leaving at six o’clock going to New York, and from there to [8] Connecticut. Q. Can you tell us, if any place you and your husband went when you met him at that time at eleven o’clock in the morning? A. Well, we had lunch first at the Holloway Restau- rant there on the corner. We left there and went to Peoples Drug Store. . Try to keep your voice up, if you can. A. We left there and went to Peoples Drug Store. He bought some after-shave lotion and some deodorant. We walked around to Hahn’s which is next door from there around the corner on 13th and G and picked up his wedding band, and we left there and continued walking until we got over on 7th Street. We were just window shopping from store to store. We got over to 7th Street and we went into Hecht’s, and went back up, I guess you would call it, north on 7th Street. We stopped at Majors and we ended up, we was at the Peoples Drug Store at 7th and K, Northwest. Q. Let me go back for a moment. You say you went to pick up his wedding ring. Can you tell us where that took place, if you remember? A. This was at Spicer’s at 13th and G. 18 Q. What if anything happened when you picked up the wedding ring, what did you do? A. When we picked it up, we had put it in to have it [9] stretched because he had broke his finger. After we got the ring, it wouldn’t go on his finger because his finger was swollen, so he tried and tried to put it on. So the gentleman there at the jewelry store was very kind. He put it on his finger for him. Q. Now, when it was being placed on your husband’s finger, did he say anything? A. Yes, he told him it was too tight, but the jewelry man insisted that he leave it as it was, and that way it wouldn't come off, but when my husband’s finger got back into place, it would be down to the right size. Q. At this time I would like to show you what has been marked for identification as Government Exhibit Number One. I would ask that you take a look at that particular item. Can you identify it? A. Yes, this is my husband’s ring. Q. Is that the wedding ring that you were talking about that was placed on his hand that morning? A. Yes, it is. Q. Now, when you left your husband later on that day at around a quarter of three, as you testified before, did he still have that ring on him? A. Yes, he did. Q. Now, can you please indicate where if any place you went once you got to the Peoples Drug Store, what you did and [10] what happened at that point? A. When we got to the Peoples Drug Store, we pur- chased two root beer sodas. I took one and he took his. We went over to catch my bus which was across the street at Hahn’s. I was going down H Street. I got on the Seat Pleasant bus, and he waited until I got on mine, until I caught my bus. His bus was ready to pull off, so he ran back across the street against the light and got on a 70 Silver Spring bus. He was supposed to be going to his father’s house. Q. Where does his father live? A. He lives at 12th and Vermont, Northwest. 19 Q. Now, about what time was it in the afternoon that you last saw your husband? . A. It was a quarter of three. Q. This was at 7th and New York Avenue, is that correct? A. Yes, it was. Q. Now, going back to that particular time and a little bit before hand, did you or your husband have any dis- cussion of money? A. I didn’t understand you. Q. Did your husband or you have any discussion about whether or not he had any money? [11] A. Well, we had discussed that. He had told me that we were going to New York, which is true. Q. Let me ask you this: Did he show you anything? A. Yes, he did. . Can you tell us about that, please. A. Well, when we were in Peoples Drug Store, I had put my clothes in the cleaners, and he was supposed to have been getting them out. So he gave me $15 to get my clothes out of the cleaners. And at the time he asked me if I would count his money, which I did, and I counted $360 before he gave me the $15 for the cleaners after which that left him $345, and that is what he was left with when we left. Q. Did you see where your husband took the money from when he gave it to you? A. Yes, I did. Q. Where did he take it from? A. From his right pants pocket. Mrs. Sewell, are you familiar with whether or not your husband carried a wallet? A. Yes, I am. . Do you know if he was carrying a wallet that day, September 24th? A. Yes, he was. Q. Excuse me? A. Yes, he was. [12] Q. What type of wallet was that? A. It was a brown imitation alligator wallet. 20 Q. Do you know if he kept his money in the wallet on that day? A. No, he did not. Q. Do you know if your husband had any habit about keeping money in his wallet? A. He didn’t have any habit at all of keeping it in his wallet. My husband never kept money in his wallet, if he had over $5. When he got down to $3, he would put it in his wallet. Otherwise he would keep it in his front pocket. At this time I would like to show you what has been marked for identification as Government Exhibit Number Two. Can you identify that particular item? A. Yes, I can. Q. What do you identify it as? A. My husband’s wallet. Q. What about the papers that are there? A. He has a letter that I wrote to him while he was in North Carolina, his insurance policy card, his National Bank card. Q. Well, let me just simplify matters. They are his identification papers? A. Yes, they are. . Did you see any of those papers on him that day? [13] Q A. He didn’t have no shirt on. Q. Did you see if he had any shoes on? A. I didn’t notice because his feet was way down to the bottom of the bed. I didn’t notice that. Q. Did you notice if there was any blood in the room when you went in? A. Sure. Q. Where was the blood? A. On the bed and on the floor. Q. What part of the floor? A. Right in the middle part as you go in the door Q. What about the man himself, did you notice if he had any blood? A. Sure, he had blood on him. Q. Whereabouts? — 55 A. On his pants and all up in here. I got blood on myself. Q. You are indicating the front part of the body? A. That’s right. Q. What about the girl? A. I didn’t see any blood on her. Q. Now, what happened after you got in there, did you [64] start to help them, did you say? A. I helped them. Q. What happened then? A. Well, we pulled him off her, what little part was on her, and they was still tussling with the knife, so Lawrence took possession of the knife. But I left then. I didn’t see no more. Q. When you left, what did you do? A. Iran down the street to see if I could see a police- man to get help. Q. Now, when you left the room, were they still in- side? A. They were still inside. Q. Who is they? A. Lawrence and the other fellow, I have forgotten his name, that was working there at the time. Q. Now, Mr. Henderson, when an individual goes in for a room, are they given anything? A. Sure. Q. What are they given, sir? A. They are given soap and a towel. . After a person leaves the room, what happens to that soap and towel? A. We take it out and throw it away. We don’t use it any more. MR. CLARKE: I have no further questions. [65] CROSS-EXAMINATION BY MR. GASTON: . Mr. Henderson, when you first saw the knife, was the knife pointed toward the feet of the man and the woman, or was it pointed toward either one of the upper portions of the body? A. Upper portion of the body. 56 Q. Whose body was it pointed toward? A. It had to be the lady from what I saw. . Who was on top? Were these two, one body on top of the other? A. Not all the way on top. He was laying on the side there. Q. One body was over the other body? A. The man’s body was over the woman’s body. Q. The man’s body was over the woman’s body. The knife was pointed toward the woman’s body? A. That’s right. Q. Now, you heard about, how many screams did you hear before breaking in the room? Do you recall? A. I couldn’t be exact, but I guess about three or four. I couldn’t be perfect about it. Q. Was that before you broke in the door? A. Before. Q. Were there any screams coming while the door was [66] being broken in? A. No, there wasn’t none then. . How many times did Mr. Smith have to—how did Mr. Smith break down the door? A. He kicked it with his right foot. Q. How many times did he kick it? Do you remember? A. About two. THE COURT: Could you tell whether the screams were those of a male or a female? THE WITNESS: Male or female? THE COURT: Did it sound like a female to you? THE WITNESS: Yes. BY MR. GASTON: Q. Now, you engaged in a struggle with the decedent over the knife. | THE COURT: Do you want to rephrase that. BY MR. GASTON: When you went in the room, Mr. Henderson, what happened? I’m sorry. Let me ask you another question. Who went in the room first? A. Lawrence. 57 Q. What did he do? A. He broke the door and then he tried to take posses- sion of the knife. Q. From whom? [67] A. From both of them. Both of them had posses- sion of the knife. Q. All right. What happened? A. Well, they struggled over the knife, and it wasn’t long before I left. . Who was involved in the struggle at first? THE COURT: Mr. Gaston, would you come to the bench. (At the bench:) THE COURT: Did you hear the direct examination? MR. GASTON: Yes, Your Honor. But what I am trying to find out— THE COURT: Cross-examination is cross-examina- tion, not a repetition of direct examination. You can cross-examine him on the basis of any of his direct exam- ination. You are just repeating the questions that the Government asked. Who kicked the door down—he told you on direct examination who kicked the door down. Who went in the room first—he told you who went in the room first. MR. GASTON: May I ask him how long the struggle was? THE COURT: Certainly. You can ask anything that is relevant to cross-examination. Cross-examination is not the repetition of direct examination. It is not direct exam- ination all over again. MR. GASTON: I was just trying to bring it out in [68] more detail. THE COURT: All right. (In open Court.) BY MR. GASTON: . Mr. Henderson, do you recall how long you were engaged in the struggle? 58 A. I couldn’t say. It wasn’t no more than about three or four minutes. Not that long. It wasn’t that long. I couldn’t be exact. Q. When you left, was the struggle still going on? A. Sure. Q. Were you able to actually see Mr. Sinith take the knife from the decedent? A. I wasn’t there. By the time he had taken the knife out, I left. . You had left? A. I had done left. MR. GASTON: I have no other questions, Your Honor. REDIRECT EXAMINATION BY MR. CLARKE: Q. Mr. Henderson, when you entered the room, did you notice if the man was completely over the woman, partially over, or how was he on top of the woman? A. Partially. He was over like this way and she was back down that way. [69] MR. CLARKE: Would you step down here again. Use this as the bed. This is the bed. This would be the wall. (At this point the witness leaves the stand and comes down to the counsel table in front of the jury.) BY MR. CLARKE: Q. This would be the wall. Which side would the door be on? A. This side. Q. What side of the bed were they on? A. On that side. Q. Indicating the right side. MR. CLARKE: Why don’t you step over here. Now, I will be the woman. You place me on the bed the way she was. (At this point Mr. Clarke and the witness both lay on the counsel table in front of the jury.) 59 MR. CLARKE: You get on the other side. Take the knife. You be the man. BY MR. CLARKE: Did she have both her feet on the bed? On the bed. ; Try to keep your voice up. Both feet was on the bed. Keep your voice up. He was laying in this position like this. Both of them was struggling with the knife. [70] Q. Which way was the knife? POPOoP oO A. That way. Q. Try to do it like it was, if you can. A. Like this. Q. Try to put your hand over here a little more so the jury can see. A. In that position is the way they were struggling like when we entered the room. (At this point Mr. Clarke and the witness complete the physical demonstration. ) MR. CLARKE: Thank you, Mr. Henderson. I have no further questions, Your Honor. MR. GASTON: I have no questions, Your Honor. THE COURT: All right. You may step down, Mr. Henderson. MR. CLARKE: Your Honor, I would ask that the wit- ness be excused at this point. THE COURT: He may be excused. (Witness excused. ) MR. CLARKE: With the Court’s permission, the Gov- ernment will call Lawrence R. Kennedy. Whereupon, LAWRENCE R. KENNEDY was called as a witness and, having been first duly sworn, was examined and testified as follows: 60 [71] DIRECT EXAMINATION BY MR. CLARKE: Q. Will you please state your name, sir. A. Yes, sir. My name is Officer Lawrence R. Kennedy, assigned to the First District, Metropolitan Police. Q. What is your occupation, sir? A. Police officer. Q. Going back to September 24, 1971, what was your occupation on that date? A. I was assigned to Scout 12 working the 3:00 to 11:00 tour of duty. Q. 3:00 p.m. to 11:00 p.m.? A. That’s correct. Q. Now, on that particular day did you have an occa- sion to respond to 1320 5th Street, N. W., in the District of Columbia? A. Yes, sir, I did. . If you can refrain from referring to your notes, it would be good. Now, going on to that day, can you tell us approxi- mately what time it was in the day or night that you responded to that location? A. I received a radio run at approximately 4:55 p.m. Q. Was that Buddies Tourist Home that you responded to? A. That’s right, sir. (72] Q. Can you tell us what happened if anything when you arrived there, what you saw, what happened, and so forth? A. Yes, sir. Upon being directed to Buddies Tourist Home located at 1322 5th Street, N. W., I went to Room No., I believe it was No. 2, and observed a Negro male lying face down naked from the waist up in a pool of blood, who was later identified as the decedent. MR. CLARKE: Officer, at this time will you step down here, please. (Witness goes to the blackboard.) 61 BY MR. CLARKE: Q. Now, taking the microphone and looking at Gov- ernment Exhibit No. 9, I believe it is, 9 for identification, can you indicate first of all whether or not you can iden- tify that particular item? A. The map? Q. Yes. A. Yes, this appears to be a diagram of Room No. 2 at 1322 5th Street, N. W., Buddies Tourist Home. Q. Where would it have been that you noticed the man lying on the floor face down? A. Right here where the blue X is. Q. Now, there are two blue X’s or that particular diagram. Just for the record, wi!! you indicate whether it is the blue X on the bed or the »lue X there—which blue X it is? [73] A. It’s the blue X on the floor with the red circle by it, between the bed and the hallway door. MR. CLARKE: You may take the stand, again, sir. (Witness resumes the stand.) BY MR. CLARKE: Q. Now, Officer, when you arrived at that room, what if anything did you do? A. At first, my first intention was to preserve the crime scene. I had to remove two gentlemen who were standing in the doorway from out of the room and to. prevent anybody further from coming in. Q. When you say “preserve the crime scene,” can you be a little bit more detailed about that? What actually do you mean? A. Well, I guess it would be to seal off the room from any other person that is unauthorized to be in there, to keep them out and to remove anybody that was in there at the present time, to get them out, also. Q. Where were the two individuals that you saw near or in the room when you arrived there? A. They were standing in the doorway. Q. Whereabouts in the doorway? Can you indicate from where you are. 62 A. Where the hallway is marked, they were standing between, they were standing actually into the doorway; they [74] weren’t inside the room itself. They weren’t outside in the hallway. They were in between. Q. Now, Officer, after you preserved the scene, did anyone e!se arrive on the scene? A. Yes, sir, they did. Q. Who came? A. Sergeant Quantrille, a First District Detective, and the Mobile Crime Lab. Q. Now. before any of these individuals arrived, did you notice if anything was done with the man who was lying on the floor face down? A. Yes, sir. He was removed by the ambulance aid men who were on the scene when I arrived. Q. Do you know where he was taken? A. He was taken to Freedmen’s Hospital on 7th Street. Q. Now, Officer, after the additional police officers you have indicated arrived on the scene, did you have an occasion to recover any particular items? A. Yes, sir, I did. Q. Will you tell us about that. A. Yes, sir. A Mr. Lawrence Smith, who was the desk attendant— Q. Try to stay away from what someone told you, if you can. Do you remember recovering anything picking up any items? [75] A. Yes. Q. What items were they? A. They were two knives, and I am not really sure of this, and a sheath. Q. At this time I would like to show you what has been marked for identification as Government Exhibit No. 11. I would ask that you look at this item. Can you identify it? A. Yes, sir: This is one of the knives I removed from the top of the telephone booth in the hallway. Q. Is that the telephone booth that is right near the bathroom? A. Yes, sir. 68 Q. Was there anything else up there when you took a knife off? A. Yes. Q. What else? A. A small paring knife, steak knife type. Q. At tnis time I would like to show you what has been marked for identification as Government Exhibit No. 12. Can you identify that? A. Yes, sir. Q. What do you identify it as? A. This is the knife, one of the knives I removed from the top of the telephone booth. [76] Q. Now, you have indicated something about a sheath. Can you tell us what you remember about that? A. I don’t remember the sheath specifically being re- moved from the top of the telephone booth. I really don’t know where that was recovered. I can’t remember if I myself handled it. Q. At this time I would like to show you Government Exhibit No. 13 for identification. I will ask you, basic- ally, this: do you remember seeing that particular item before? A. Yes, sir. Q. That is the item that you said you don’t know where it came from? A. Yes, sir. MR. CLARKE: You don’t remember. May I have the Court’s indulgence for a second. I have no further questions, Your Honor. MR. GASTON: I have just one question. CROSS-EXAMINATION BY MR. GASTON: Q. I wasn’t clear on the time you arrived at the scene. A. Approximately 4:55, MR. GASTON: Thank you. I have no further ques- tions, Your Honor. 64 MR. CLARKE: Your Honor, may the officer be ex- cused [77] at this point? THE COURT: Yes. (Witness excused. ) MR. CLARKE: Your Honor, may counsel approach the bench? THE COURT: Surely. (At the bench:) MR. CLARKE: Your Honor, may I have the Court’s permission to go out and check in the hallway, check in the witness room to see which witnesses I have available at the present time. I am expecting Dr. Brownleee at 11:00. I don’t know if he is a little early. _I also have a couple of other witnesses that will be here right around 11:00 to 11:15, and I could put one of them on if Dr. Brownlee is not here at the present time. THE COURT: Yes. (In open Court.) (Short pause. ) MR. CLARKE: Your Honor, the Government now calls Detective Joseph Quantrille. Whereupon, JOSEPH C. QUANTRILLE was called as a witness and, having been first duly sworn was examined and testified as follows: [78] DIRECT EXAMINATION BY MR. CLARKE: Q. Will you please state your name, sir. A. Joseph C. Quantrille. Q. What is your occupation? I am employed by the Metropolitan Police Depart- . In what capacity? A. As a detective. 65 Q. For what section? A. First District. Now, Detective Quantrille, going back to Septem- ber 24, 1971, what was your occupation and assignment on that day? A. I was assigned to the First District Detective Cruiser. I believe it was 717. Q. Going back again, to that day, September 24, did you have an occasion to respond to a location known as Buddies Tourist Home? A. Yes, sir, I did. Q. About what time of the day or night do you re- member first arriving there? A. I believe it was right after 5:00. Q. Did you have an occasion to leave Buddies Tourist Home at any time after you arrived there in relation to the case that you went there and go some place else? A. Yes, sir, I responded to Freedmen’s Hospital. [79] Q. Try to keep your voice up. Where did you respond? A. To Freedmen’s Hospital. Q. About what time was that? A. I believe it was around 5:30. Q. Can you tell us what if anything you did when you got to Freedmen’t Hospital? A. I went to Freedmen’s Hospital to see how badly the complainant was hurt. I recovered some property while I was there. Can you tell us about recovering property. First of all, what is the standard operational procedure, if you want to use that word, as far as recovery of property from a hospital? What do you do? A. Well, they take the property from him when he is admitted. And if it is a serious case, then we recover the property at that time. Q. Will you describe in a little more detail what you mean by the property—you recover the property and they take it from him. A. Well, he was being operated on, so they take what he was wearing off and give it to the head nurse. As I 66 remember, at that time we wanted to see if he had any- thing of value to safeguard, and things like that. Q. What did you do when you got to the hospital about this property? [80] A. Well, we recovered what property that they had. And we were told that this was all he had. We recovered a pair of pants and a knife. Q. At this time I would like to show you what has been marked for identification as Government Exhibit No. 3, and I would ask that you look at that item. MR. CLARKE: In the meantime, Your Honor, I would ask that this be marked as Government Exhibit No. 14 for identification. THE DEPUTY CLERK: Government Exhibit No. 14 marked for identification. (Government Exhibit No. 14 was marked for identi- fication. ) MR. CLARKE: I will show it to defense counsel. BY MR. CLARKE: Q. Officer, going to Government Exhibit No. 3 which you have before you, for identification, can you identify that particular item? A. Yes, sir. They are the pants that were recovered from Freedmen’s Hospital. Q. Now, when you recovered these pants, what if anything did you do with the pants? A. I put them in, they were in a green bag, a green trash bag, a plastic bag. So I checked the pockets and found the knife in one of the pockets. [81] Q. Did you find anything else in the pockets be- sides the knife? A. No, sir. Q. At this time I would like to show you what has been marked for identification as Government Exhibit No. 14. Can you identify that particular item? A. Yes, sir. I believe this is the knife I took from the pocket. I didn’t mark it with my initials or anything, but I believe that is the knife. 67 Q. Now, what did you do with the knife and the pants after you recovered them from the hospital? A. I responded back to the scene of the crime and turned them over to the Mobile Crime Lab. Q. Would that be Officer Laughery of the Mobile Crime Section? A. I believe so, sir. Q. Officer, did you find any money in the pockets of those pants, Government Exhibit No. 3? A. No, sir. MR. CLARKE: I have no further questions. CROSS-EXAMINATION BY MR. GASTON: Q. Officer, you state you didn’t mark that particular knife. A. No, I didn’t. [82] O>O 103 [136] Q. Detective Sergeant, going back to September 25, 1971, what was your occupation at that time ? A. Homicide investigator. Q. Going back to that date, did you have an occasion to see anyone that you now see in Court today? A. Yes, sir. Q. Who is that? A. That lady sitting at the table over there. Q. Describe the dress she is wearing. A. I believe it is dark brown, and black sweater. MR. CLARKE: Your Honor, may the record reflect the witness has pointed to the defendant? THE COURT: Very well. BY MR. CLARKE: Q. Now, Officer, will you please indicate about what time it was in the day or night you saw her and where did you see her? A. Yes, sir. It was about 10:25 a.m. Saturday mor- ning, September 25, 1971, in the Homicide office. Q. Was she by herself? A. No, sir. Who was she with? A. Her husband Samuel, and, I believe, her sister Vivian. Can you please indicate when you saw Mrs. Agurs at [137] that time whether or not you had any conversa- tion with her? A. Yes, sir. Q. Will you also indicate what that was, what hap- pened, what was said, if anything? A. Yes, sir. She was brought to my attention by Ser- geant Spencer. He advised me that this was the lady that we wanted for the case in question, and would I talk to her and process her. He had already advised her of her rights and stated that she was not going to give us a statement. Q. She was advised of her rights, is that correct? A. Yes, sir. 104 Q. Then you were preparing the paper work and speaking with her, is that correct? A. Yes, sir. Q. What if anything did she say, and how did it come about? A. I was typing, I believe, the police department Form 163 that we make out on people, and during the conversa- tion she asked me was there a knife found. I stated there were two knives found. She stated there was only one. At that time her husband Samuel asked her— MR. GASTON: Your Honor, I am going to object to this as hearsay. THE COURT: Let’s talk about what she said. THE WITNESS: Yes, sir. {138} There was a question asked her. She stated “He was holding it when I left.” BY MR. CLARKE: Q. Sergeant Alexander, when an individual comes in who is a suspect, or a defendant in a homicide case, do you have any standard procedure which you utilize in order, do you look for anything in particular when a person comes in and you have an interview of someone like that and they are a suspect or a defendant in a homi- cide case? A. Yes, sir. Q. What is that, sir? A. While we are talking to them we will look for injuries on the body, visible injuries. Q. What do you do if you find any? A. We will ask them, question them as to how they received them. Q. Now, as to this particular case, did you notice any injuries upon Mrs. Agurs—her face, her arms, her hand, any item that was exposed to you, any part of her body that was exposed? A. To the best of my knowledge sir, and after refer- ring to my notes, I did not see any injury to Mrs. Agurs. Q. If you had seen any injury, what would you have done besides question them about it? A. I would have made a notation of it. What we 105 [139] generally do is have it brought to the attention of the Identification Section and have colored photos taken of that injury. Q. In this case did you make any notes as to injury? A. No, sir. Q. Were any photographs taken? A. No, sir. I beg your pardon—there was a photo- graph taken, but not of an injury. That was in the processing. Q. That’s the normal procedure—taking a _photo- graph? A. Yes, sir. MR. CLARKE: I have no further questions, Your Honor. CROSS-EXAMINATION BY MR. GASTON: Q. Officer, the examination you performed, was that just from the distance of talking to her? A. Yes, sir. Q. So underclothing or something like that, she could well have an injury? A. We are not allowed to touch a woman, sir. Q. So the answer to the question is no? A. I didn’t see any, no. Q. But she might have had— MR. CLARKE: Objection, Your Honor. THE COURT: Sustained. [140] BY MR. GASTON: Q. She showed up voluntarily at the police department, did she not? A. That is correct, sir. MR. [GASTON: I have no other questions. MR. CLARKE: I have no further questions, Your Honor. May the witness be excused? THE COURT: Yes, Sergeant, you may be excused. (Witness excused. ) MR. CLARKE: Your Honor, before I call my next witness, may counsel approach the bench for a second? THE COURT: Very well. 106 MR. CLARKE: I would also add, Your Honor, that this is the last witness for the Government. (At the bench:) MR. CLARKE: Your Honor, my next witness is a Mrs. Brazier. She is a nurse at the Women’s Detention Center, and it will be a matter of formality of introduc- tion of records, medical records taken at the time this defendant was admitted to the Women’s Detention Center. Up until recently I felt we would have a stipulation— actually, it is the Government’s own stipulation, and I see in this case that we don’t have a stipulation because coun- sel has indicated there was a cut on one of the defendant's hands, but I had nothing to show that, so I couldn’t stipu- late [141] to that one fact. I called Mrs. Brazier down right before we came back to Court. So I wonder if I could have the Court’s indulgence for a second just to tell her what will happen when she comes in here to testify. THE COURT: What do you mean, what will happen? MR. CLARKE: As to the questions I will ask her. THE COURT: Where is she from? MR. CLARKE: She is a nurse at the Women’s Deten- tion Center. THE COURT: She ought to have enough sense to respond to questions without your talking to her. MR. CLARKE: Yes, Your Honor. But I just wanted for my own benefit to know exactly what she had to say so I don’t put my foot in my mouth in a sense. It would only take about a minute, Your Honor, just outside the hall. THE COURT: Very well. MR. GASTON: Your Honor, may I inquire of Mr. Clarke as to whether or not he intends to have the notes which she drew up admitted into evidence? MR. CLARKE: I will ask that they be admitted. I will have to do that in order to have her testify from it. But before they go the jury, I would have them excised. The problem that we have is this, Your Honor. The de- fendant is a user of narcotics, and on the notes themselves there is a description of drug usage, when is the last time the person [142] took any, and how much they took. And 107 I will make sure that is cut off before it goes to the jury. In fact, we could do it very easily. I will have her explain what the notes refer to and I will instruct her of this beforehand to stay away from any of the narcotics. MR. GASTON: All right. Whereupon, JANE BRAZIER was called as a witness and, having been first duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. CLARKE: Q. Will you please state your name, and spell your last name for the court reporter. A. My name is Jane Brazier, B-r-a-z-i-e-r. Q. Is that Miss or Mrs.? A. Mrs. Q. Mrs. Brazier, going back to September 25, 1971, did you have an occasion to see anyone that you now see in Court today? A. September 25, 1971? Q. September 25. A. What did you say? Q. Did you see anyone on that day that is in Court today? [143] A. Yes, I did see the lady that night. Q. Will you point her out, please. A. She is sitting over there with the black dress. MR. CLARKE: Your Honor, may the record reflect the witness has pointed to the defendant. THE COURT: Very well. BY MR. CLARKE: Q. Can you tell us where it was that you saw Mrs. Agurs? A. Isaw her downstairs in the Medical Department of the Women’s Detention Center. 108 Q. For what purpose did you see her there, why did you see her there? A. She was sent down from Control for medication for ber heroin habit. Q. What is your position right now? A. Registered nurse. Q. At that time when Mrs. Agurs came down, did you have an occasion to examine her body? A. Yes, I did. Q. Did you look at her arms? A. Yes. Q. Her face? A. Yes. Q. Her legs? A. Yes. (144] Q. At that time that you were looking at her did you notice anything of a trauma, an injury, an inci- sion wound, a bruise of some sort, a cut—anything like that? A. No, there weren’t any. MR. CLARKE: I have no further questions, Your Honor. MR. GASTON: Your Honor, may we approach the bench. (At the bench:) MR. GASTON: Your Honor, what I was afraid might happen, obviously, has happened. I don’t know exactly what the best approach to be about it. Certainly the jury being asked to disregard the statement concerning her heroin could do nothing but draw their attention to that point. It seems to me the answer that occurs to me is to have her testimony as a whole stricken. MR. CLARKE: Your Honor, I would like to say this one thing for the record. That just before Mrs. Brazier testified, I specifically to!'d her not to mention anything at all about drugs, anything at all about scars or any- thing on the woman’s arm pertaining to heroin—simply for the single purpose. 109 Now, it’s against my instructions, I had no idea that would be coming up when it came out. There is nothing else I can say on that point. , As far as counsel's request that the testimony be [145] stricken, I don’t see how what the witness said inadvert- ently on that point in any way affects the integrity of - — testimony. In fact, it doesn’t affect her integrity at all. THE COURT: I can’t see any justification for strik- ing her testimony. MR. GASTON: Well, Your Honor, I don’t see how the potential harm could be cured. The only other alternative that does occur to me is a mistrial. THE COURT: On what ground? “ ~ GASTON: That the defendant has been preju- iced. THE COURT: How so? MR. GASTON: By the statement to the ladies and gentlemen of the jury that she is a heroin addict. MR. CLARKE: We would oppose a mistrial, Your Honor, on the grounds that is a statement that came out inadvertently. I stopped immediately. There is nothing else that goes into it. As to how much harm it will have— THE COURT: Do y» think that her addiction is ir- relevant to this woman? MR. GASTON: I think the probative value, Your Honor, is far outweighed by the prejudicial effect it might have. THE COURT: I disagree. I am not going to declare a mistrial. I see no justification for a mistrial. I think [146] it has a great deal of probative value, as a matter of fact. As a practical matter, here is a married woman shacked up at 4:00 in the afternoon in a third rate tourist home, and her heroin addiction, you say, has no probative value. MR. GASTON: I think that it is far outweighed by the prejudicial value, Your Honor. THE COURT: It was not done pursuant to any in- struction of the prosecutor. 110 MR. GASTON: Oh, no, Your Honor, I wouldn’t sug- gest it was. MR. CLARKE: Your Honor, the Government position is, basica'ly, this is, first of all, it is probative. Of course, that is the whole reason for this whole thing taking place, that is the whole reason why she went to the room with the man in the first place. That is the reason that the rolling took place. MR. GASTON: That is an assumption. THE COURT: Well, according to the status of the evidence, the only money he had was $4 for the room at this point. There are other inferences. MR. CLARKE: Your Honor, an hour before— THE COURT: Other inferences: that these employees took the money. MR. GASTON: That’s right. [147] THE COURT: There is no evidence that they did. The other inference is that the money, if he had any money, that she took it. Either are logical inferences. MR. GASTON: Or that he left it at his father’s. He left the after-shave and deodorant some place. THE COURT: Where is there any evidence he went to his father’s place? MR. GASTON: Mrs. Sewell testified he was going there. THE COURT: Was there evidence that he ever went to his father’s place? MR. GASTON: There is evidence that he left her go- ing to his father’s place. THE COURT: He was supposed to go. He was going up 7th Street and he wound up in a tourist home. MR. CLARKE: Forty-five minutes later. That is plenty of time to— MR. GASTON: Somewhere he left off the after-shave lotion. THE COURT: The inference is there. I am not de- claring a mistrial. (In open Court:) 111 CROSS-EXAMINATION BY MR. GASTON: Q. Ma’am, is there a Miss Pollack at the Detention [148] Center, also? A. Yes, there is. Q. What does she do there? A. She is a registered nurse there. Q. Does she perform these type of examinations, also? A. She does, she takes the history on them at the place where they come in. Q. Isn’t it a fact that she did talk with Mrs. Agurs at the time Mr. Agurs came in? A. Not the night she came in. Q. She didn’t? A. No; she wasn’t on duty that night. Q. You examined her on that night? A. Yes, I saw her on that night. Q. Did Miss Pollack speak to her to your knowledge at a later time? R.. Miss Pollack saw her on the 27th of September 1971. Q. Did Mrs. Agurs register any complaints to her? A. The only notation she mentions is that she states homicide and she was going out on bond. Q. She didn’t say anything about a pain in the back, made no notes of that? A. There isn’t any notation on that day at all. MR. GASTON: I have no other questions. [149] THE WITNESS: She was also seen on 9/26 over at the main jail. BY MR. GASTON: Q. Who did she see there? A. Miss Hathaway, a registered nurse. Q. Do those notations indicate any registration of complaint by Mrs. Agurs? A. No, there is no complaint of any injury. MR. GASTON: I have no other questions, Your Honor. 112 REDIRECT EXAMINATION BY MR. CLARKE: Q. Mrs. Brazier, if anyone complains of injuries, is it noted? A. Yes, it is noted. Q. Have you looked through the files in this case to see if there are any conditions of back ache, a cut hand? A. Yes. There is no notation at all on that. MR. CLARKE: Thank you. I have no further ques- tions. Thank you. Your Honor, may the witness be excused at this point? THE COURT: Yes. (Witness excused. ) MR. CLARKE: Your Honor, at this point the Gov- ernment would move into evidence Government Exhibits 1 {150] through 14. No. 15 has already been received. And Government Exhibits 16 through 18, inclusive. MR. GASTON: I have no objection to any of the evi- dence being admitted except for the pocket knife or pen knife which the officer states he can’t be positive was the same one he found. THE COURT: Your objection is overruled. They will be received. (Government Exhibit Nos. 1 through 14 and 16 through 18 were received in evidence. ) MR. CLARKE: At this time the Government would rest its case. THE COURT: Very well. I think we will take a short recess, ladies and gentlemen. We will take a ten-minute recess. (Short recess taken. Following which at 3:14 p.m. the proceedings resume outside the presence of the jury.) THE COURT: The Government has rested, Mr. Gas- ton. MR. GASTON: Yes, Your Honor. Your Honor, at this time I would move for a judgment of acquittal. The 113 basis for my motion is that the three people who were eyewitnesses or earwitnesses, to the event, or which could provide direct evidence of what occurred, all three agree that from the inside of this room they heard screams for help. They all agreed that [151] the screams were female, and all three agreed that once the door was broken down, they saw a man and woman on the bed struggling with each other, the man on top and the woman underneath, and at that time she was still screaming. There was also the fact that the three men went in the room. At least one or two of them went over and grabbed the decedent off the top of Mrs. Agurs and then engaged in a struggle of some duration with the decedent to remove from him his possession of the knife. From this evidence, Your Honor, I don’t see how a reasonable person could find beyond a reasonable doubt that this killing wasn’t done in self-defense. Now, I understand that Mr. Clarke has a lot of circum- stantial evidence from which he wishes to build a contrary theory, but all that evidence stares in the face of the sounds that were coming from that room, the screams for help, and what was seen upon entry into that room. I might add that all of this evidence comes directly from Government witnesses. These are the people who have firsthand knowledge of what was occurring in that room. And everything they said leads to the conclusion of self-defense. Further, Your Honor, I would submit that for that rea- son I would ask that the Court find as a matter of law that the defendant is not guilty, or direct a judgment of acquittal. Also, it occurs to me that there is no real [152] evi- dence of any malice involved here. So should the Court decide not to render a judgment or direct a judgment of acquittal as to the entire indictment, I do think that the defendant is entitled to relief as to second degree and have it reduced to manslaughter. Thank you. MR. CLARKE: Your Honor, the Government would oppose the defense motions, basically, on this factor: al- though at the time the witnesses entered the room, the 114 decedent seemed to, or according to one witness, Mr. Smith, to be the aggressor according to Mr. Henderson it looked like he had the knife itself, and Mr. Griffin wasn’t sure. But even if the Court takes Mr. Smith’s testimony as being the criteria or the standard of what did happen, that does not change the fact that of the two people in the room, the decedent is the one who is all cut up. He is the one who has the various slashes and stab wounds to his body. The defendant in this case didn’t have any wounds, at least none that were apparent the next day when she was at police headquarters, nor when she was down at the Women’s Detention Center later on that night. So although at the end, a man in a locked room ap- pears to be the agressor, that does not change the fact that the wounds on the individual, plus the circumstances which led to their being there and the situation of his clothes and [153] his lack of money at the time of the breaking into the room—all indicate a contrary result, namely, that he was the victim of an attack, whether it be by way of a rolling attempt or of some kind of mad attack on the defendant’s part. But the main thing is this, Your Honor: Under the standard for a motion for a judgment of acquittal, the Government submits the jury could find, not that they have to, but that they could find that this defendant did act with malice, especially the number of stab wounds would show that, and, also, if it was the result of a roll- ing situation, that she acted with malice inflicting these wounds, and not in a sense of self-defense. And one point that goes to that, Your Honor, is the fact that the decedent did not have the sheath on his belt when he was in the hospital. The belt and the trousers were sent back, and the sheath was found in the room. And it could be assumed and inferred that the knife was up with the wallet, with everything else of his when he went into the bathroom, and when he came back, the knife was used to try to get the money that he had in his pocket. We submit, Your Honor, there is clearly evidence here for the jury to make this particular case. And under the Holland case, even though the Government’s evidence does not negate all other reasonable inferences, that the jury 115 could find beyond a reasonable doubt from the circum- stant al evidence [154] this is what happened. We submit the case should go to the jury. THE COURT: Do you wish to respond, Mr. Gaston? MR. GASTON: Yes, Your Honor. Your Honor, I would suggest that in the Holland case the direct evidence which may have been contrary to the circumstantial evi- dence wasn’t as great as the direct evidence in this case. A'so, the main thrust of my argument is that while there is some circumstantial evidence, it’s not sufficient for a reasonable man to find beyond a reasonable doubt that there was not set-defense in this case. All of the direct evidence is directly on, the thrust of this is that it was self-defense. THE COURT: Is that why she left? MR. GASTON: The Government testimony was she left because she was scared to death. That is what Mr. Griffin said. THE COURT: She had three men come to her rescue. MR. GASTON: Well, the testimony and the evidence from the witnesses, Your Honor, was that she was scared to death. I can see, I think it’s perfectly reasonable to see how someone in that position might have been scared to death. I think if they were not, it would be unreason- able. THE COURT: No. The evidence does not warrant at this stage a judgment of acquittal. And with respect to malice, all of the circumstances of the killing, such as they were as [155] revealed from the evidence, as sufficient. The jury may infer malice from the nature of the wounds, the number of wounds. I will not direct a motion for a judgment of acquittal as to second degree. Are you ready for the defense? MR. GASTON: Your Honor, the defense has no wit- nesses. I have spoken with Mrs. Agurs at some length concerning whether or not she should testify, and I have advised her against him. I would like to have it on the record that she voluntarily goes along with my advice in that regard. She has told me that she does agree not to go on the stand. 116 THE COURT: Is this correct, Mrs. Agurs, that you do not wish to testify in this case? THE DEFENDANT: Yes, sir. THE COURT: Do you understand you have a perfect right to testify? THE DEFENDANT: Yes, sir. THE COURT: If with the advice of counsel you do not choose to testify, you have that right, also. But it must be clear, if you want to testify, you can. I understand from Mr. Gaston you have conferred with him about that. He has given you certain advice, and you concur. You agree in the advice that he has given you. Is that correct? THE DEFENDANT: Yes, sir. THE COURT: All right. Do you want to recess and |156] discuss instructions? MR. CLARKE: Yes, Your Honor, I think it would be good to do so before argument. THE COURT: Do you have any special instructions prepared, Mr. Gaston? MR. GASTON: I have no special instructions, Your Honor. I do have some requests in regard to the or- dinary instructions used, but I don’t anticipate any problems. THE COURT: Let’s confer in chambers, and I think we can get those together in relatively short order. MR. CLARKE: Your Honor, will the Court be hav- ing arguments today or tomorrow morning? I antici- pate the Government argument will probably be about 15 minutes, since it is basically a circumstantial case. THE COURT: I don’t see why we can’t get it to the jury today. I don’t see any reason why we can’t. MR. CLARK: The Government is ready to argue today, Your Honor. MR. GASTON: The defense is ready, Your Honor. THE COURT: I think we ought to move then. All right. I will see you in chambers. (Counsel and the Court confer in chambers from 3:25 p.m. until 3:55 p.m., when the following pro- ceedings are had in open Court:) 117 THE COURT: Just have them— [157] MR. GASTON: Your Honor, before the jury comes out, it might be a good time for me to renew my motion for a judgment of acquittal, if I indicate I don’t want to say anything further. I just want to for the record. THE COURT: Yes, and it is denied on the same grounds it was originally denied. (The jury enters the courtroom. ) THE COURT: Ladies and gentlemen of the jury, there is no more evidence to presented to you in this case. And there remains, therefore, just two things to be done: One, argument of counsel with respect to the evi- dence that has been presented, and then the Court’s instruction as to the law that pertains to this case. In view of the hour, we are going to ajourn the trial until tomorrow morning. I will ask you to return at 10:00 tomorrow morning, because I have some pre- liminary matters in the morning, but at 10:00 tomorrow anticipate that we will be prepared for argument of counsel and the Court’s instructions on the law. Don’t discuss any of it, please. All right. Good night. (The jury leaves the courtroom. ) THE COURT: I will see counsel now in chambers. (Whereupon the trial was adjourned at 3:58 p.m. to reconvene Friday, July 7, 1972.) j — euantinniiat 118 [158] UNITE) STATES DISTRICT COURT FOR TH ) DISTRICT OF COLUMBIA Criminal No. 2081-71 UNITED STATES OF AMERICA vs. LINDA V. AGURS, DEFENDANT Friday, July 7, 1972 Washington, D.C. Trial (resumed) before The Honorable AUBREY E. ROBINSON, JR., United States District Judge, and a jury. APPEARANCES: JOHN O’B. CLARKE, Esq. Assistant United States Attorney For the Government ROBERT T. GASTON, Esq. For the Defendant [158-A] CONTENTS Page Instructions to Jury ........ sciiabidonaaihiaedetaaiec dil aaa ie tinikathindaaie 166 TIIIIIIT ‘ccchenshsudeanecaiiaedeiesesousenesiniie ea ee 190 119 [159] PROCEEDINGS THE DEPUTY CLERK: Linda V. Agurs, Criminal Action 2081-71. (Defendant present. ) MR. CLARK: Your Honor, as far as instructions go on this case, the Government indicated yesterday it would be requesting a special instruction on the right of self-defense and the right of the individual himself to retrieve property taken from him or prevent property being taken from him. After several discussions with the Chief of the Appellate Section, the Government at this time would withdraw that request and simply ask that when the Court is discussing the general theory of self- defense itself, as to whether or not an individual is an aggressor or not, that Court just mention the fact that an individual can be an agressor if they are trying to take someone’s property as well as attacking someone. MR. GASTON: Your Honor, I would object to that instruction on the ground that there is no evidence that there was any property there. It is true that a possible inference can be made that Mr. Sewell did have property there, but that type of instruction, it seems to me turn that possible inference into a fact on which the jury is to make a decision. And if it is given, I would ask that there be some notation that the person whose property is taken is only permitted to use a certain amount of force to protect that property, and if it is [160] excessive, then he himself becomes an aggressor. THE COURT: I am not going to get all hung up with a lot of theory. I am going to explain to this jury in plain and simple language what the theory of self-defense is as it relates to the evidence in this case. And I am quite certain that I can make them understand it and at the same time satisfy the legal requirements of both the defense and the prosecutor in this case. MR. GASTON: I have some other matters which I would like to discuss, if I might. 120 I would like to inquire first if Your Honor intends to give the usual instruction No. 13 which concerns the number of witnesses? THE COURT: No, I don’t. MR. GASTON: Fine. I would also—Mr. Clarke in- dicated in the chambers yesterday that he intended to argue certain matters, and rather than interrupt his final argument, I would like to object to some of the things which I anticipate he will be arguing at the time. I believe, for instance, that his argument that Mr. Sewell went out of the room and into the bathroom solely because he had his pants on is just mere speculation. There is just no evidence of that at all. I feel the same way about evidence that while he was gone, she was going through his papers. That’s mere [161] speculation. It is arguments of that nature to which I would like to register an objection, and I would hope that my objection could be a continuing one so I would not have to interrupt. MR. CLARK: Your Honor, as to those two points, I would submit that the Government has a right to argue any logical inference from the evidence itself. And in this case, Diagram No. 9, Government Exhibit No. 9, shows the bathroom is out, and as the witnesses have indicated, the entrance to the bathroom is out in the hallway. The decedent in this case had completed an act of sexual intercourse, as is evidenced from the used condom which was found in the room. And the decedent was only wearing a pair of pants; his underwear had not been placed on. And we submit that the logical in- ference from that is that the individual had left the room and gone out into the hallway. And after an act of intercourse, it is possible that he went, it is logical that he went to the bathroom, which that would be the only reason that he would have to put on pants as compared to not having started to get dressed by putting on underpants and then his pants. 121 As far as the defendant having gone through this individual's property, the wallet itself is spread out on the table as shown in Government’s Exhibits 17-A through G, the wallet is spread out on the table and the contents are spread [162] around. The decedent had approximately an hour before this event $345. At the time that he was taken to the hospital he didn’t have anything, not even a cent. No change, no dollar bills. We submit that it is a logical inference from the array of the property, the fact that he had no money, and, secondly, that the fight that did occur in that room, there was an argument over money in a rolling type situation. That is basically what the Government will be arguing. MR. GASTON: If I may briefly respond. As to the evidence, that is, taking the photograph, there is ob- viously no dispute. But that wallet could have been disturbed by the three men who were in the room later. There is no evidence that Miss Agurs did that while Mr. Sewell was in the bathroom. THE COURT: That is one inference that may be drawn from it. There is no testimony that they dis- turbed anything other than get the knife from Sewell when they went into the room. But there is no, there are only four people that went into that room, five people. One didn’t stay very long. By his own admis- sion, as soon as he saw that Smith and the other man were grappling for the knife, he left and he said he ran down 5th Street to look for the police. He didn’t stay very long. So that left four people in the room—the defendant, the decedent, and Smith and the other em- ployee. [163] MR. GASTON: All right, Your Honor. I have one other point, if I might. Yesterday it came out in testimony that Mrs. Agurs had a heroin habit, and Mr. Clarke indicated to me yesterday that he might be argu- ing on the basis of that. I would object to that on the basis that the way that that evidence came out was in no fashion proper. It was a medical conclusion with- out any qualified expert testifying as to it. I think 122 it would be totally improper for Mr. Clarke to argue on the basis of evidence which came in improperly. MR. CLARKE: Your Honor, I might be able to alleviate Mr. Gaston’s concern here. The Government does not intend to argue the fact that this individual was a heroin addict, that is the reason she is a prostitute and that was the reason she was taking the property in the premises. And the reason we will not argue that, and we do not, first of all, we do consider it to be highly probative of facts in this case, especially through the whole prostitution arrangement and a rolling type situation— THE COURT: I think so, too. I will permit the Government to reopen, if you wish, and lay it all on the record. The Government made the representation in- itially that they had no intention of developing that, and it was not done deliberately. It was an inadvertent response to a question. It was, in a sense, the question could have been sharp- ened more precisely, but it wasn’t, and the witness de- spite the admonition of the Government’s attorney, came out with [164] something that the Government did not intend. Because they did not intend it, it is not ex- pected that Mr. Clarke is going to argue it. So you will have no problems, Mr. Gaston. MR. GASTON: All right. May I inquire of Mr. Clarke as to whether he intends to argue that she is a prostitute? MR. CLARK: Yes, Your Honor, definitely I will. MR. GASTON: I would also like to enter an objec- tion as to that. THE COURT: Oh, Mr. Gaston, your objection is noted for the record and it is pro forma. MR. GASTON: Thank you, Your Honor. I have nothing further. MR. CLARK: Your Honor, the only thing further the Government has is yesterday counsel for both the Government and the defense and the Court had a dis- cussion as to instructions in this case, and at that time the Government requested an instruction on flight. 123 And, again, the Government would for the record state that we would request a flight instruction in this case. And we base it on the fact that the defendant, after the decedent had been pulled off her— THE COURT: I told you I am going to give a flight instruction. MR. CLARK: Yes, Your Honor. I just want to make the record. [165] MR. GASTON: I have nothing further, Your Honor. THE COURT: All right. How much time do you want to argue this case? MR. CLARK: Your Honor, I believe approximately 15 minutes for opening and 15 minutes for close. THE COURT: Stick to the evidence and the infer- ences that can be drawn from the evidence, and keep your personal opinions out of it, and I won’t have to interrupt either one of you. MR. CLARKE: Yes, Your Honor. THE COURT: But otherwise, I will. MR. GASTON: Your Honor, I don’t believe I will be taking more than 30 minutes. THE COURT: Thirty minutes? MR. GASTON: Yes, Your Honor. It is a second degree murder case. It could be shorter than that, but I certainly wouldn’t want to go too short. THE COURT: [I'll tell you what you do, you look at those jurors over there as you are talking, because that is what it is all about. If you can keep them in- terested in what you have to say for 30 minutes, you are welcome to try, and still talk about the evidence in this case. All right. Have the jury come in. (The jury enters the courtroom at 11:02 a.m., at which point closing arguments are made to the jury, which are [166] not transcribed as a part of this record.) 124 INSTRUCTIONS TO JURY THE COURT: Ladies and gentlemen of the jury, I told you that the Court had the responsibility of in- structing you as to the law that applies to the evidence in this particular case. It’s your duty to accept the law as the Court gives it to you. It’s your responsibility to consider all of the instructions as a whole, and you should not give any special attention or consideration to any one instruc- tion. You should not disregard any instruction, and you have no right to question the wisdom of any of the rules of law. It’s the function of the jury to determine the facts, and I told you, you are the sole and exclusive judges of the facts in this case. You determine the weight and the value and the effect of the evidence. In that con- nection you determine the credibility of the witnesses. Now, make your determination as to the facts in this case without any bias or prejudice or fear or favor toward anybody involved in the case on either side in the ease. And consider the evidence in the light of your own observations and experience in the affairs of life. Nothing that I have said or done during the course of this trial should be taken by you of any indication as to how I feel you should decide any question of fact. And if by |167] anything I have done. that indicates to you my opinion with respect to the evidence, you disregard it, because, I repeat, it’s solely your prerogative to de- termine the facts from the evidence, and it’s your pre- rogative to determine what the verdict in this case shall be. You heard the evidence. The Court heard it. Counsel heard it. They have argued the evidence to you. If your recollection differs from what they recall the evi« dence to have been, again, it’s your recollection that controls. They said to you quite candidly and accurately that what they said to you is not evidence in the case. They argue it, but what they say by way of argument is not evidence. DE maw ef 125 The evidence came from that witness stand. It came from the exhibits which have been admitted. And it came from the two stipulations that were entered into. That’s the body of evidence from which you find the facts in this case. Not the indictment. As I told you, you will recall, the indictment is a technical formal manner of accus- ing a person of a crime in order to bring him or her to trial. And you must not infer that the defendant is guilty because they have been indicted or draw any inference of guilt from the fact of indictment. The trial Court in any jury case has the responsibility of ruling on questions of law. Those rulings most [168] frequently take place in connection with objections to questions put to witnesses. If I sustained an objection to a question that was put to a witness during the course of this trial, you disregard the question and do not speculate as to what the answer to that question would have been had it been permitted. And by the same token, if a question and answer were excluded by the sustaining of an ob- jection, you disregard that question and that answer because that doesn’t form a part of the body of evi- dence from which you find the facts. So we have got the testimony, we have got the stipula- tions and we have the exhibits. That’s the body of evidence. Now, this body of evidence can be, as has been argued to you, divided into two basic kinds: direct and cir- cumstantial evidence. Well, direct evidence is the testimony of one who asserts actual knowledge of a fact, or in this case, like the testimony of the witness who said he saw two people do such and such a thing, or the witness Smith who said that he recognized this defendant and this decedent. That is direct evidence. Circumstantial evidence, on the other hand, is proof of a chain of facts or circumstances. Tending to indi- cate either the guilt or the innocence of the defendant. [169] The law makes no distinction between the weight that you ladies and gentlemen of the jury are to give 126 direct evidence on the one hand and circumstantial evi- dence on the other. The law does not require a greater degree of certainty with respect to circumstantial evi- dence than it requires with respect to direct. You have the responsibility of weighing all of the evidence in the case whether it’s direct or circumstantial, or a combination of both, and if after a fair evaluation of that evidence, you are not convinced of the guilt of the defendant beyond a reasonable doubt, then you have an obligation to acquit her. I suggested to you at the outset by way of prelimi- nary instructions that much of the evidence would come through the testimony of witnesses, and you have to judge their credibility. You are the sole judges of their credi- bility. You determine whether to believe any witness and the extent to which any witness should be believed. If there is conflict in the testimony of witnesses, you have got to resolve the conflict and determine where the truth lies. With respect to this evaluation of a witness’ credi- bility, you have a right to consider anything that has a bearing on the subject of credibility. By that we mean the witness’ demeanor on the stand, the witness’ manner of testifying, whether the witness impressed you as having a true and accurate [172; memory and recol- lection of the events about which the witness testified, whether the witness impressed you as being a truthful individual, whether the witness had any motive for not telling the truth, any animosity or bias toward any- body involved in the case. With respect to the issue of credibility, you may consider whether the testimony is reasonable or unrea- sonable, whether a witness’ testimony has been contra- dicted or corroborated by other credible evidence in the case. If you believe that any witness in your judgment showed himself to be biased or prejudiced for or against anybody in this case, either side in the case, then you have a right to determine whether that bias or prejudice affected either the desire or the capability of the wit- ness to tell the truth. 127 In short, ladies and gentlemen, you have the respon- sibility of giving to the testimony of each witness such weight as in your good judgment you think that testi- mony is fairly entitled t> receive. With respect to Dr. William Brownlee, who testified as the Deputy Medical Examiner for the District of Columbia, he was qualified as an expert in pathology and surgery with respect to performing an autopsy to determine the cause of death. And as such he was permitted to give his opinion. An expert who is qualified in certain areas of com- petance is permitted to give opinion evidence in the course [171] of a trial. But you ladies and gentlemen of the jury are not bound by his opinion. You should consider his testimony in conjunction with the other testimony and evidence in the case and give his testi- mony, again, such weight as you determine it’s fairly entitled to receive. If you think that any witness came in here and was sworn before you and wilfully testified falsely with respect to a material fact about which the witness could not reasonably be mistaken, you may, if you want to, disregard all or any portion of that witness’ testimony, or you can take such portion or portions you think is worthy of belief. The burden of proof is on the Government in a criminal case. I told you at the outset that every defendant charged with a crime is presumed to be innocent, and this presumption of innocence remains with the defendant throughout a trial unless and until he or she is proven guilty beyond a reasonable doubt. _And the burden, the obligation is upon the prosecu- tion to prove the guilt of the defendant beyond a rea- sonable doubt. This burden never shifts from the Gov- ernment to the defendant. It never shifts from the Government. The Government always has it. Under our system of law, as distinct from other sys- tems in other countries in the world under our system of law a defendant is not required to prove his or her innocence. [172] In fact, the law doesn’t require in this 128 country a defendant to give any evidence with respect to a criminal charge placed against them. So unless the Government proves beyond a reason- able doubt each and every essential element of the offense or the lesser included offense I will get to in a moment with which this defendant is charged, you must find her not guilty. Reasonable doubt? Counsel repeated this phrase sev- eral times in their argument to you, and you have heard me use it several times already: proof beyond a rea- sonable doubt. A reasonable doubt, ladies and gentlemen, is exactly what it sounds like. It’s a doubt based on reason, a doubt for which you can give a reason. It’s the kind of a doubt that would cause a juror after very careful and candid and impartial consideration of all of the evidence to be so undecided that he or she cannot say that he or she has an abiding conviction of the defendant’s guilt. We may put it another way: it’s the kind of a doubt that would cause a reasonable person to pause or to hesitate before acting in connection with the more im- portant affairs in his or her own life. A reasonable doubt may arise from the evidence that has been pre- sented in the course of the trial, or a reasonable doubt may arise from the lack of evidence. However, a reasonable doubt is not a whimsical [173] doubt, it’s not a doubt based on conjecture, it’s not a doubt based on speculation. I repeat: it’s a doubt based on reason. In a criminal prosecution the Government is not re- quired to prove the guilt of the defendant beyond all doubt or to prove the guilt of the defendant to a mathe-. matical certainty, or to prove the guilt of the defendant by some scientific certainty. The obligation of the Gov- ernment in the prosecution of a criminal offense, the burden is to establish the guilt of the defendant beyond a reasonable doubt. And a defendant is never to be convicted on the possi- bility of guilt or speculation of guilt or some conjecture that he or she may be guilty. 129 You have heard it argued to you that the defense con- tends that you may infer from the evidence in this case that Mrs. Agurs stabbed and cut James Sewell in self- defense. The Government contends that the stabbing and the cutting resulting in his death was not in self-defense. Therefore, I have got to talk with you and give you the instructions with respect to the law of self-defense, be- cause, ladies and gentlemen, if a homicide is committed in self-defense, it’s no crime. So as you consider the evidence in this case, it would seem logical that the first thing that you consider would be that evidence with respect to this self-defense con- tention. The Government has the obligation, the burden, of [174] proving that the homicide was not committed in self-defense, and it must prove this beyond a reason- able doubt. If it fails to do so, you must acquit Mrs. Agurs. Now, if Mrs. Agurs had reasonable grounds to believe and actually believed that she was in imminent danger of death or serious bodily injury from Sewell, and that she had to use deadly force to repell such a danger, she was not required to retreat or to consider whether she could safely retreat. She was entitled to stand her ground and use such force as under the circumstances was reasonably necessary to save her life or to protect herself from what Sewell may have been about to do to her. However, if Mrs. Agurs could have safely retreated and failed to do so, that’s a circumstance that you may consider together with the other evidence in the case in determining whether or not she went farther in repelling any attack upon her, whether the danger by this attack was real or apparent and it was necessary for her te do. If she thought that she was in imminent danger of death or serious bodily injury and that deadly force was neces- sary to repell that danger, she would be justified in using deadly force in self-defense even though it afterwards turned out that the appearances to her were false. She could have used deadly force even though there was in fact neither a purpose nor a design on the part of 130 Sewell to kill her or seriously injure her, or any immi- nent danger that [175] this was going to be done, or the actual necessity that deadly force be used in self-defense. Even if Sewell was the aggressor and Agurs was justi- fied in using force in self-defense, she wouldn’t be en- titled to use any greater force than she had reasonable grounds to believe and actually did believe were neces- sary under the circumstances to save her life or to pro- tect herself from great bodily injury. Now, in determining whether Mrs. Agurs used exces- sive force in defending herself, you may consider all of the circumstances under which she acted. Now. the claim of self-defense under the law is not necessarily defeated if greater force than would seem reasonably necessary in cold blood is used by a defendant in the heat of pas- sion generated by an assault upon her, because a belief that may be unreasonable in cold blood may be actually and reasonably entertained in the heat of passion. If Mrs. Agurs was not the aggressor and had reason- able grounds to believe and actually did believe that she was in imminent danger of death or serious bodily in- jury from Sewell, and she could only save herself by us- ing deadly force against Sewell, she had a right, as I said a moment ago, to use deadly force in order to defend herself. And by “deadly force” we are talking about a force that is likely to cause death or serious bodily injury. {191} But in order for Mrs. Agurs to have been justi- fied in the use of deadly force in self-defense, she must not have provoked the assault upon herself. She must not have been the aggressor. In this connection, mere words don’t ever constitute provocation or aggression. The circumstances under which she acted, including any evidence of intoxication on the part of the decedent, must have been such as to produce in the mind of a reasonably prudent person similarly situated the reasonable belief that Sewell was about to kill her or about to do her serious bodily harm. And in addition, she must have actually believed that she was in imminent danger of death or serious bodily harm and that she had to use deadly force in order to repell this 131 imminent threat of death or imminent threat of serious bodily injury. As I have indicated, if you find from the evidence any evidence of self-defense in this case, it’s the burden of the Government to prove beyond a reasonable doubt that the defendant did not act in self-defense. If you find, as I indicated, that the Government has failed to prove that the defendant did not act in self-defense, you must find ‘er not guilty. In other words, if you have any reason- able doubt as to whether or not the defendant acted in self-defense, your verdict must be not guilty, because, as I indicated, lawful self-defense is a defense to a homicide. [177] When you have analyzed the evidence with re- spect to self-defense, and if you find from the evidence that the Government has born its burden with respect to the homicide not having been committed in self-defense, then you will consider whether the Government has proved the essential elements of the offense with which Mrs. Agurs is charged, namely, second degree murder. Second degree murder is the unlawful killing of one per- son by another with malice aforethought, but without any premeditation or deliberation. If you have got premedita- tion and deliberation, we are talking about another crime which is first degree murder. Second degree murder is the unlawful killing of a person with malice aforethought. It may be committed either with or without any purpose or intent to kill if the killing is accompanied by malice, and I will talk about malice in a minute. The essential elements of the offense of second degree murder, each of which the Government must prove beyond a reasonable doubt, are two: The first is that the defendant in this case, Mrs. Agurs, in the District of Columbia, inflicted a wound or wounds upon the decedent from which he died. I don’t need to elab- orate on the evidence with respect to that. You have heard the evidence. Secondly, the second essential element is that the [178] defendant acted with malice. Now, in its ordinary use in everyday life the word “malice” would indicate a feeling of hatred or ill will by one person toward another, or a feeling of hostility by one 132 person toward another. But in its legal sense, malice has a broader significance. Malice does not necessarily imply ill will or hatred or spite or hostility by a defendant toward the person killed. “Malice” in the law is a state of mind showing a heart that is, regardless of the life and safety of others, a mind that is deliberatedly bent on mischief, a generally de- praved, wicked or malicious spirit. Malice as the law knows it is a condition of mind which prompts a person to do a wrongful act wilfully, that is, on purpose, to do injury to another, or to do intentionally a wrongful act toward another without justification or excuse, that is, a wrongful act whose forseeable consequence is death or serious bodily injury. Malice may be either express or it may be implied. Ex- press malice exists where one unlawfully kills another in pursuance of a wrongful or unlawful purpose without legal excuse. Implied malice is such as may be inferred from the cir- cumstances of the killing, as, for example, where the killing Was caused by the intentional use of fatal force without circumstances serving to mitigate or to justify the act. [179] In determining whether a wrongful act whose fore- seeable consequence is death or serious bodily injury is in- tentionally done without justification or excuse, and is therefore, done with malice aforethought, you should, again, bear in mind that it may be inferred that every person intends the natural and probable consequences of his own act or acts. But you are not required so to infer. As I have tried to indicate to you, the intent may be de- duced from all of the circumstances that you find in the evidence. Malice may also be inferred when an act which imparts danger to another is done so wrecklessly or wantonly as to manifest a depravity of mind and a disregard of hu- man life, and such acts results in the death of another human being. But, again, you are not required so to infer. Would you get Juror No. 7 some water. Better get her another cup, so in case it comes back, she will have some. Now, the instrument or means by which a homicide has been accomplished is always to be taken into consideration 133 in determining whether the act is criminal and, if so, in what degree. So if in a prosecution for homicide, it’s shown that the accused used a deadly weapon in the com- mission of the homicide, malice may be inferred from the use of such a weapon. But, again, you are not required to infer malice. A deadly weapon in the law is any instrument of of- fense designed to or capable of being used in attacking an [180] adversary and likely to produce either death or serious bodily injury. Now, if a homicide is committed in the heat of passion caused by adequate provocation, it’s not second degree murder. In addition to the adequate provocation, there must be heat of passion caused by that provocation. In other words, both the provocation and the heat of passion must exist at the time of the injury or injuries causing the death are inflicted. In other words, ladies and gentlemen, a homicide com- mitted in the heat of passion is not second degree murder, and we are talking about second degree murder at this point. Heat of passion which must coincide with the pro- vocation includes rage or resentment or fear or terror. And it may be produced by a combination of these. Provocation in order to be adequate to acquit this de- fendant of the second degree murder charge must be such as might naturally induce a reasonable person in the passion of the moment to lose self-control and commit the act on impulse and without reflection. A blow or other personal violence may constitute adequate provocation. But a trivial or a slight provocation entirely dispropor- tionate to the violence of the retaliation is not adequate provocation sufficient to acquit the defendant of second degree murder. And mere words standing alone no mat- ter how insulting, no matter how abusive, no matter how offensive, are not adequate to acquit a defendant of second [181] degree murder on the grounds that he or she was provoked. The Government has the burden of proving beyond a reasonable doubt that the provocation did not occur in order for there to be a second degree murder conviction, or that any provocation that did occur was not adequate 134 as a matter of law, or that the defendant, Mrs. Agurs, was not in the heat of passion caused by that provocation. In other words, if you have any reasonable doubt whether or not the defendant acted in the heat of passion caused by adequate provocation, the verdict must be not guilty of murder in the second degree, because, as I repeat, the Government has the burden of proving that the homicide was not committed in the heat of passion caused by ade- quate provocation in order for there to be a conviction of second degree murder, and this burden must be met, as the Government’s burden throughout the case must be met, by the standard of proof beyond’a reasonable doubt. If you determine that the Government has failed to prove the indicted offense of second degree murder, you will then consider whether the Government has proved beyond a reasonable doubt the essential elements of the lesser included offense of manslaughter. There is only one count to the indictment; the indictment charges second degree murder. But a lesser included offense of a second degree charge is manslaughter. It’s a lesser degree of homicide. Now, manslaughter is the unlawful killing of a [182] human being without malice aforethought. Second degree is with malice aforethought. Manslaughter is the unlawful killing of a human being without malice aforethought. Manslaughter occurs, one, when the homicide is com- mitted at a time of mutual combat. Manslaughter may occur when it’s committed in passion or hot b!ood caused by adequate provocation. Manslaughter also occurs where a homicide is commit- ted as a result of wrecklessness in conduct by a person involving extreme danger of death or serious bodily in- jury and a gross deviation from the standard of care or conduct that a reasonable person would observe. Manslaughter has these five essential elements, each of which the Government must prove beyond a reasonable doubt: Again, the first. essential element is that this defend- ant, in the District of Columbia, inflicted a wound or wounds upon the decedent James Sewell from which he died. 135 Secondly, that the defendant stabbed or cut the deceased in sudden passion without malice, or that the defendant stabbed or cut the deceased as a result of wrecklessness in conduct involving extreme danger of death or serious bodily injury and a gross deviation from the standard of care that a reasonable person would observe. If the jury finds there was sudden passion, then it [183] must also be shown that the sudden passion was caused by adequate provocation. Lastly, that the homicide was committed without legal justification or excuse. It’s not a defense to manslaughter, as it is to second degree murder, that the homicide was committed in heat of passion caused by provocation. The heat of passion and the provocation must coincide. And with respect to any homicide that you may find resulting from wrecklessness in conduct involving extreme danger of death or serious bodily injury, I am not talking about a standard based on simple negligence. I am talking about a wrecklessness in conduct which involves an ex- treme deviation from the normal expectation of human behavior, a gross deviation from normally reasonable standards of conduct that a.man or a woman would ob serve in a particular set of circumstances. Now, justifiable homicide is the necessary killing of another in pursuance of a legal duty, or, where the person who kills not being himself at fault, had a legal right to Fill. Excusable homicide occurs where the person who kills, although himself or herself at fault, has the legal right so to kill, or where the killing was the accidental result of a lawful act done in a lawful manner. If you find that the Government has proved beyond [184] a reasonable doubt all of the essential elements of the offense of manslaughter, you may find the defendant guilty of the lesser included offense of manslaughter. If, however, you find from the evidence*the Government has failed to prove all of the essential elements of the offense of manslaughter, then you cannot convict the defendant of manslaughter. 136 There is evidence in this case that after the three em- ployees of Buddies Tourist Home broke into Room 2, the defendant left. Flight by a defendant after a crime has been committed may be motivated by a variety of factors. Flight does not necessarily reflect feelings of guilt, be- cause feelings of guilt may be present in many innocent people and not necessarily reflect actual guilt. You may, but you are not required to, you may consider any evidence of flight as one circumstance tending to show the defendant's feeling of guilt. You may, but you need not consider feelings of guilt as evidence tending to show actual guilt. But above all, you should not presume guilt from any evidence of flight which you may find in the case. You should consider and weigh the evidence of flight along with the other evidence in the case in determining what weight you are going to give it. The question of possible punishment in the event of conviction should not enter into your jury deliberations nor affect them in any fashion whatsoever. The duty of imposing [185] sentence in the event of conviction rests exclusively upon the Court. You should weigh the evidence in the case, ladies and gentlemen, in the context of the Court’s instructions as to the law and determine this de- fendant’s guilt of innocence solely on a fair evaluation of that evidence and without regard to the question of pun- ishment. Now, in order to return a verdict, each juror has to ugree to the verdict. It’s the verdict of-each juror. You as jurors have an obligation and a duty to consult with one another in your deliberations and participate in the deliberations, and you should deliberate with a view to reaching a verdict if it can be done without violating your individual conscience with respect to the evidence as you heard it. . 7 Each juror should decide the case for himself or herself, but only after a fair and impartial consideration of all of the evidence and only after participation in deliberation and discussion with your fellow jurors. Don’t hesitate to re-examine your view in your exchange in your delibera- tions. But make your verdict your verdict. You have to be persuaded by the deliberation of other jurors, but you 137 certainly have a right and you have an obligation to ac- cord them the difference in expressing their views, be- cause each of you has taken a solemn oath with respect to your obligation. You will retire to the jury room and you will refresh yourselves for lunch, and the marshal will take you to [186] lunch. After you come back from lunch, you will commence your deliberations. First you select from among your number a foreman or a forewoman, and you may do so in any fashion you choose. The foreman or forewoman presides over the deliberation. That is all the foreman or forewoman does, just somebody has to preside and keep the deliberations going. They have no more weight and no less weight, 12 equal jurors. When you have arrived at a verdict, there is a deputy marshal right outside the door. He will advise the Court that you have a verdict, and we will take your verdict in open Court. You are entitled to see all of the exhibits which have been admitted into evidence. If you wish to see all or any one or more of them, you indicate to the Court by a note over the signature of your foreman or forewoman. Give the note to the deputy and he will bring it to the Court and we will have the clerk of the Court see that the ap- propriate exhibit or exhibits are sent to you. If for any other reason you have to contact the Court. you may do so, again, by note over the signature of your foreman or forewoman. But do not indicate in any note how you stand with respect to any balloting that may have taken place in the course of your deliberations, be- cause it’s nobody’s business about your balloting. [187] Now, we have to excuse the alternate juror at this point. After you have had your lunch, you go back to the jury lounge. Is there anything further counsel? MR. CLARKE: May counsel approach the bench, Your Honor? THE COURT: Surely: (At the bench:) 138 MR. CLARKE: I just have one point in the instruc- tion on malice and implied malice, basically. The Court indicated that malice may be inferred from the use of a dangerous weapon. They don’t have to infer it, but they could if they want. I believe in the second grain decision, this is all that has to be done, the added words “without justification or excuse, the use of a dangerous weapon without justifica- tion or excuse,” I don’t think that has to be used in this case because of the circumstances of the case and the other evidence, but I would just like to bring that to the Court’s attention. } ; THE COURT: I think it has been perfectly clear. I think anything more I say to them would just be confus- ing MIR. GASTON: I would like to have it left the way it is. _ I have something else, if I may, Your Honor. It [188] occurs to me that it might be helpful if the jury were told- the order in which they were to consider first self-defense. THE COURT: I have already told them that. That is they way I gave it to them. I told them the first thing to do when they go in there, didn’t I? MR. CLARKE: Yes, Your Honor. MR. GASTON: Fine, Your Honor. THE COURT: I said if it is self-defense, that is the end of it. MR. GASTON: All right. I have nothing further, Your Honor. (In open Court:) THE COURT: Now, one other thing. You have all of the time you need to deliberate on a fair verdict, all of the time that you need. If you have not arrived at a ver- dict at five minutes to 5:00, we will adjourn your delib- erations and start you Monday morning at 9:30. I make this point clear because I don’t want it ever to be said that the jury was pressured into bringing back a verdict, any kind of verdict. You have all of the time you need, all afternoon until five mintes to 5:00, and then 139 we can adjourn the deliberation and start all over again Monday morning. All right. (The jury-retires for lunch at 12:41 p.m.) {189} THE COURT: I think that counsel shouid stay fairly close. If the only notes that I get from the jury have to do with exhibits, I will merely check the exhibit with the clerk and send it in without calling counsel, un- pless there is some objection to that. MR. CLARKE: No objection to that. THE COURT: Any other note, of course, I will have to talk with counsel, so please stay in close touch with the courtroom clerk, MR. CLARKE: I will be up in my office this after- noon. THE COURT: All right. We will stand in recess. (Luncheon recess taken. ) [190] VERDICT: (The jury enters the courtroom at 3:03 p.m.) THE COURT: Ail right. The clerk will take the ver- dict. THE DEPUTY CLERK: Will the foreman please rise. (Juror No. 4 stands.) THE DEPUTY CLERK: The defendant rise. Mr. Foreman, has the jury agreed upon a verdict? THE FOREMAN: Yes. THE DEPUTY CLERK: What is your verdict as to the defendant Linda V. Agurs on the charge of second degree murder? THE FOREMAN: We find the defendant guilty as charged. THE DEPUTY CLERK: Will all the jurors please rise. Is that the verdict of each and everyone of the jurors? (The jury responds affirmatively. ) 140 THE COURT: Do you wish to have the jury polled? MR. GASTON: Yes, please, Your Honor. THE COURT: Have a seat, ladies and gentlemen. THE DEPUTY CLERK: Members of the jury, as I call your name, please state whether your verdict is the same as announced by your foreman. (At this point the jury is polled.) THE DEPUTY CLERK: The jury has been polled, Your Honor. (191| THE COURT: All right, ladies and gentlemen. You will return to the jury lounge and they will tell you about your next case. (The jury leaves the courtroom. ) MR. CLARKE: Your Honor, since this is a District of Columbia Code offense and the new provisions of the District of Columbia Bail Act would apply, the Govern- ment would ask that the defendant remain committed at this point. THE COURT: Mr. Gaston, do you want to be heard? MR. GASTON: Not at this time, Your Honor. I will consider the matter, and when I feel it appropriate, I would file a motion for release. THE COURT: All right. The defendant will remain committed, and we will get a probation report and set it for sentencing as soon as I receive the probation report. (Wherevpon the trial was concluded.) REPORTER’S CERTIFICATE This record is certified by the undersigned official re- porter of the United States District Court for the District of Columbia to be the official transcript of the proceedings indicated. DOoOYNE W. SPENCER 141 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Criminal No. 2081-71 UNITED STATES OF AMERICA vs. LINDA AGURS, DEFENDANT July 24, 1973 Washington, D.C. Hearing before The Honorable AUBREY E. ROBIN- SON, JR., United States District Judge. APPEARANCES: JOHN O’B. CLARKE, Esq. Assistant United States Attorney For the Government ROBERT I. GASTON, Esq. For the Defendant DOYNE W. SPENCER Official Reporter 4806 U.S. Court House Washington, D.C. 20001 142 [2] PROCCEDINGS okt DEPUTY CLERK: Linda Agurs, Criminal Case 81-71. (Defendant not present at 11:52 a.m.) THE COURT: All right. Mr. Gaston. MR. GASTON: Your Honor, initially I would like to formal'y waive the appearance of my client, Mrs. Agurs, in this matter. I do so on the basis that I foresee no pre- judice to her in her absence at this hearing. And I think it will further her interests to have the hearing rather than to pro’ong it, particularly in light of Your Honor’s imperding vacation. We are here this morning on a motion that I have filed on behalf of Mrs. Agurs for a new trial. She was con- victed of second degree murder. Subsequent'y I learned of new evidence showing that ’ the decedent was of a violent character. Specifically, the evidence was a record of convictions for prior violent offenses. This information was obtained from the U. S. Attorney's file on this case. The evidence is extremely important because it goes right to the issue of who was the aggressor in this par- ticular tourist home room. Your Honor will recall that the defendant and the decedent went to a room in a tourist home, and shortly thereafter the desk clerk heard screams from the defend- ant for help. He [3] and two other employees, went to the door of the room and knocked. They were unable to gain entry and the screams continued. They broke the door down and found the decedent and Mrs. Agurs on the bed. The decedent was on top of Mrs. Agurs and they were struggling for a knife which was pointed downward toward Mrs. Agurs at the time. The people broke into the room, pulled the decedent off Mrs. Agurs, and struggled with the decedent for a while before obtaining possession of the knife. Thus, in light of the defendant’s defense of self-defense, the only real issue in the case was who was the aggressor in the room. And that is directly, that is the issue which this new evidence goes directly to. 143 Under such circumstances, the evidence is admissible under the case of United States vs. Burkes which | re ferred to in my points and authorities. Those peints and authorities also cited the Brady case which prohibits the prosecution from withholding re- quested favorable evidence which is material regardless of whether the prosecutor acted in good or bad faith. I also cite the case of Barbee vs. the Warden of the Maryland Penitentiary, a Fourth Circuit case, which held that it is a denial of due process for the prosecutor to withhold favorable information whether or not the defense requested it, because the defense might not know that it existed. Then I also refer the Court to the chief judge’s [4] concurring opinion in 1965 in the Ellis case where he stated that even where an accused had a lead concerning the newly discovered evidence and didn’t follow up, the Government stil] is not necessarily relieved of its duty to disclose. Now, in its opposition the Government cites two cases which I would Jike to discuss briefly. The first one is the Thompson case, a 1950 case. In that case the newly discovered evidence for which a new trial was sought invelved a police record for petty larceny of the Government witness. And in that case the Court set up five standards or five tests which had to be passed in order for a new trial to be awarded on the basis of newly discovered evidence. Those five elements were: that the evidence discovered, that the evidence be discovered since the trial; that the party seeking the new trial must show dilligence in at- tempting to procure the newly discovered evidence; that the evidence must not be merely cumulative or impeaching and that the evidence must be material to the issues in- volved; and that the evidence must be of such a nature that in a new trial it would probably produce an acquittal. In Thompson the Court found that the second, third and fifth elements—lack of dilligence on the part of the party seeking a new trial, the fact that the evidence was for impeachment, and the fifth one, that the new evidence 144 would not [5] probably produce an acquittal—were miss- ing. or that they were there, and that was the problem ma the case, and the Court denied a new trial on that sis. Now, Mr. Clarke in this case argues that the defense was not dilligent in attempting to procure this newly dis- covered evidence, and that there is not a probability of an acquittal if there is a néw trial. On the point of dilligence, I would like to say that, as I stated, the Thompson case is a 1950 case. Since that time, in 1964 the Barbee case was handed down. As pointed out, that held that the Government should turn over reports even though not requested. Also, our own Court of Appeals, in 1966 in the case - of Levin vs. Katzenbach, stated the following: “Ordinar- ily, a finding of lack of due dilligence will defeat a motion for new trial based only upon the significance of newly discovered evidence.” But appellant's “claim for relief based upon a breach of prosecutor’s dity of disclosure challenges the fairness and, therefore, the validity of the proceedings, and relief, either on a motion for a new trial or for habeas corpus, may not depend on whether more abie, dilligent or fortunate counsel might possibly have come upon the evidence on his own.” As to the probability of acquittal if a new trial were granted, I don’t know if that is technically the test of whether or not a new trial should be granted. The Su- preme Court [6] ruled in a situation like this that the Court should ask whether it would not be too dogmatic on the basis of mere speculation for any Court to con- clude that the jury would not have attached significance to the evidence favorable to the defendant had the evi- dence been before the jury. That is the Supreme Court case of Griffin v. United States, 336 U.S., on pages 708 and 709. That case came back to our own Court of Appeals in an opinion, 183 Fed 2nd 990, and our own Court of Ap- peals used that test in deciding whether or not a new trial should be granted. In this case where the evidence was so close as to who was the aggressor, I think it would be difficult to say 145 that a jury would not attach significance to th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1121%3A2. Public record. Not legal advice.