Reply Brief — Shreeves v. United States

=P one Court, U, P|

‘ILED

APR 2¥ 1979

NUL CHAR RODAK, JR., CLERK

ed

IN THE

Suprene Court of the Uuited States

’ OcTOBER TERM, 1978

No. 78-1259

BRUCE H. SHREEVES,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

District of Columbia Court of Appeals

PETITIONER’S REPLY BRIEF

JOHN H. PICKERING

ARTHUR F. MATHEWS

ROBERT B. McCaw

ARTHUR B. SPITZER

WILMER, CUTLER & PICKERING

1666 K Street, N.W.

Washington, D.C. 20006

Attorneys for Petitioner

April 27, 1979 Bruce H. Shreeves

en se

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-1259

BRUCE H. SHREEVES,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

District of Columbia Court of Appeals

PETITIONER’S REPLY BRIEF

1. Government interference with insanity defense. Re-

spondent correctly states but fails to answer petitioner’s

argument “that the government affirmatively misled the

court by failing to disclose that [Shreeves] was a potn-

tial defendant in the District of Columbia” (Opp. 6).

Thus, respondent does not dispute the factual predi-

cates for the argument, i.e.:

—that at the time the government stated “any trial

of [Shreeves] will be in Maryland,” the government knew

that Shreeves would be charged with and tried for homi-

cide in the District of Columbia.

2

—that an arrest warrant for Shreeves had already

been prepared at the time of his extradition hearing, but

that for reasons solely within the government’s control

it had not been served.

—that if the arrest warrant had been served, it would

have been error to deny Shreeves’ motion for a psychi-

atric examination.’

Instead, respondent’s position is simply that the gov-

ernment was entitled to prevent Shreeves from obtaining

a prompt psychiatric examination by (1) delaying the

filing of formal charges against him until after his

motion for a psychiatric examination had been denied,

and (2) making a misstatement of fact to the court

presiding over his extradition hearing. Significantly, in

‘taking this position, respondent ignores a key element

of petitioner’s argument: that in the District of Colum-

bia, the burden of proving an insanity defense rests on

the defendant. Whatever might be the case in a juris-

diction where this burden is on the prosecution, inter-

ference with a defendant’s ability to establish his insanity

defense cannot be permitted where the government has

already imposed this heavy burden on his defense.

2. Denial of right to counsel. Respondent’s Opposition

intimates that Brewer v. Williams, 430 U.S. 387 (1977),

1 See Cannady v. United States, 122 U.S. App. D.C. 120, 851

F.2d 817 (1965) ; Mitchell v. United States, 114 U.S. App. D.C. 353,

316 F.2d 354 (1963); Ward v. United States, 120 U.S. App. D.C.

311; 346 F.2d 423 (1965). Although respondent persists in arguing

that there was “no basis” for the extradition court to order a

psychiatric examination (Opp. 6), it fails to point out that the gov-

ernment conceded at the extradition hearing that District of Co-

lumbia law authorizes a court-ordered psychiatric examination

“when a person will stand trial . . . in the District of Columbia.”

Opposition to Defendant’s Motion for Psychiatric Examination,

dated March 8, i973, at 2. Indeed, in one of the cases cited by

respondent, the court did order a psychiatric examination in the

context of an extradition hearing. Lathan v. Reid, 108 U.S. App.

D.C. 58, 59, 280 1 .2d 66, 67, cert. denied, 364 U.S. 865 (1960).

3

determined that a represented defendant could be inter-

rogated without notice to his counsel. In fact, Brewer

explicitly reserved that question, 430 U.S. at 405-06 and

n.11, and reversed a conviction based upon such an inter-

rogation. Similarly, respondent’s intimation that since

Brewer the lower courts have been approaching consensus

on this question is wrong. At least two state courts of

last resort have held, since Brewer, that such interroga-

tion may not be permitted. People v. Tompkins, 45 N.Y.

2d 48, 380 N.E.2d 311, 408 N.Y.S.2d 485 (1978), cert.

denied, —— U.S. ——, 99 S. Ct. 1288 (1979) ; Common-

wealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977).?

And those federal and state appellate courts that have

upheld interrogation without notice to counsel have

done so over strong dissents. See, e.g., United States v.

Brown, 569 F.2d 286, 241-48 (5th Cir. 1978) (en banc)

(Simpson, Goldberg, Godbold and Morgan, JJ., dissent-

ing) ; United States v. Rodriguez-Gastelum, 569 F.2d 482,

488, 489 (9th Cir. 197:,) (en banc) (Goodwin, Brown-

ing, Anderson, Hufstedler and Ely, JJ., dissenting) ;

People v. Green, —— Mich. ——, 274 N.W.2d 448, 455,

456 (1979) (Moody, Kavanagh and Levin, JJ., dissent-

ing) .®

Respondent asserts that “in appropriate circumstances

an accused may validly waive the right to counsel with-

out consulting his attorney” (Opp. 8). But in arguing

that this case presents such an “appropriate circum-

stance,” respondent once again ignores a critical fact:

that at the time of the uncounseled interrogation here,

the government was on notice that Shreeves was of ques-

2 As this Court recently indicated, a conflict among state as well

as federal jurisdictions on a question of federal constitution... law

provides a basis for a grant of certiorari. See Delaware v. Prouse,

U.S. ——, 99 S. Ct. 1891, 1894-95 at nn.2 & 3 (March 27,

1979).

3 United States v. Monti, 557 F.2d 899 (1st Cir. 1977), cited by

respondent, is hardly on point, involving as it did a defendant

who was not in custody and who himself initiated a meeting with

secret service agents immediately after consulting with his attorney.

4

tionable mental competence.‘ To permit the government

to bypass Shreeves’ attorney under these circumstances

cannot, consistent with the Sixth Amendment, be toler-

ated.°

3. Improper substitution of jurors. Respondent’s argu-

ment on this point not only contradicts the government’s

position below, but distorts the facts. Respondent asserts

that:

“(T]he two parts of petitioner’s trial were en-

tirely separate and distinct, and the two sets of de-

liberations were wholly independent. ... The sub-

stitution of jurors prior to the deliberations at the

end of the second phase of the trial was therefore

wholly different from the substitution of alternate

jurors during the deliberations in a single-phase

trial, or in the midst of the deliberations in one or

the other phase of a bifurcated trial” (Opp. 11;

emphasis added).

* As this Court has just noted, “the question of waiver must be

determined on ‘the particular facts and circumstances surrounding

th[e] case, including the . . . conduct of the accused.’” North

Carolina v. Butler, —— U.S. ——, No. 78-354, slip. op. at 6 (April

24, 1979). Application of this standard would require respondent

to explain how a represented defendant can be found knowingly

and intelligently to have waived his right to counsel in an interview

where he stated: “I believe I am Jesus Christ and that I wrote the

Ten Commandments” (Tr. Vol. 3, p. 535).

5 Respondent’s lengthy footnotes (Opp. 3, n.1.; Opp. 9, n.2)

attempt to minimize Deputy Purdy’s failure to inform Shreeves’

attorney, Golton, of his intended interrogation on the ground that

Golton had previously indicated that the “last decision” on whether

to respond to police questioning was his client’s “prerogative.”

This, of course, is no more than a careful attorney’s accurate state-

ment of the law. But, as respondent admits, Golton made it clear

that he would advise Shreeves not to talk with Purdy (Tr. Vol. 3,

p. 496) and that he would “certainly want to be there” at any inter-

rogation (Tr. Vol. 4, pp. 1016-17). Moreover, respondent appears

to concede and makes no attempt to justify the fact that although

Purdy was fully aware of Golton’s wishes, he made no attempt

to contact Golton even though he had ample time to do so while

waiting at the jail to see Shreeves.

5

This “separate and distinct” treatment of the two

parts of his trial is precisely what Shreeves requested

when he moved for a bifurcated trial with two separate

juries. But Shreeves’ motion was denied after the gov-

ernment argued:

“(T]he facts as they are found by the [first

phase] jury is what controls on the insanity issue

also and, therefore, a stipulation, or even a second

jury hearing along with the first jury, could not ade-

quately meet that requirement of law.” (Tr. Vol. 1,

p. 48.)

In its closing argument at the insanity phase, the

government emphasized that the two phases of Shreeves’

trial were not separate and distinct—the precise opposite

of what respondent now urges. The jury was told:

“Now, this brings us to another thing. This isn’t

just a separate trial. You don’t forget everything

that happened before. You have to take into consid-

eration, when you determine whether or not Bruce

Shreeves was nuts, if you want to use that term, on

the 26th, that the evidence show you that he did, in

that trial, the way he behaved on the night of the

24th as you heard about, the complete day of the

25th and then on the 26th. Was there anything in

any of that testimony that showed you that there is

a question about that man’s ability to know what he

was doing and to decide what he wants?

“Was there any kind of indication whatsoever that

you heard that showed that? You heard what the

defendant was. And you heard how, during the trial,

one of the. things was a question of who did the

shooting. You heard how it didn’t matter. It doesn’t

make a bit of difference.

“But that comes over and it carries into this too,

and it goes into what the government has argued

from the very beginning in this case... .” (Tr.

Vol. 23, pp. 1578-79 ; emphasis added. )

6

Respondent’s factual assertions thus cannot be sup-

ported by the record in this case.

Respondent’s only answer to petitioner’s argument

that substitution of jurors after deliberations have begun

is contrary to Rule 24(c) and the Constitution—an argu-

ment based on logic, history, and an unbroken line of

case law—is to point to the speculative possibility that

some mistrials may result from the unavailability of

alternate jurors in the second phase. Of course, this

danger can easily be avoided by impaneling two separate

juries, as Shreeves initially requested. But, in any event,

as this Court held only last week, a state’s interest in

saving “time and expense [in] the administration of its

system of criminal justice” cannot be permitted to trans-

gress “the substance of the jury trial guarantee.” Burch

v. Louisiana, —— U.S. ——, 47 U.S.L.W. 4393, 4395

(April 17, 1979).

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

JOHN H. PICKERING

ARTHUR F. MATHEWS

ROBERT B. McCAw

ARTHUR B. SPITZER

WILMER, CUTLER & PICKERING

1666 K Street, N.W.

Washington, D.C. 20006

Attorneys for Petitioner

Bruce H. Shreeves

April 27, 1979