Petition — Rado v. Connecticut

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. ¢9 | 3 33

DONALD A. RADO,

Petitioner,

Vv.

STATE OF CONNECTICUT AND JOHN MANSON,

COMMISSIONER OF CORRECTION,

Respondents,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

DAVID S. GOLUB, ESQ.

SILVER, GOLUB

& SANDAK, P.C.

P.O. Box 3247

Stamford, Connecticut 06905

(203) 325-4491

Attorney for the Petitioner

INDEX

Page

OPINIONS EE 2

BEE IE eae aa ae 2

QUESTIONS EEE 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS SR 3

STATEMENT OF THE (id ed oe 6 6 6.00 6 60 5

REASONS FOR GRANTING THE WRIT........ 11

I. THE COURT SHOULD GRANT A

WRIT OF CERTIORARI TO REVIEW

THE COURT OF APPEALS' SUB-

STANTIAL MODIFICATION OF

DOUGLAS V. ALABAMA AND CLARIFY

THE CONTINUED VIABILITY OF THE

CONFRONTATION CLAUSE PRIN-

CIPLES AFFIRMED IN THAT

DECISION. .ccccccccccccccccccccce 16

II. THE COURT SHOULD GRANT A WRIT

OF CERTIORARI TO ARTICULATE

THE DUE PROCESS AND CONFRON-

TATION CLAUSE PRINCIPLES

IMPLICATED BY A _ PROSECUTOR'S

DELIBERATE ELICITATION OF A

WITNESS' INVOCATION OF THE

FIFTH AMENDMENT PRIVILEGE....... 25

ew twee oe ceee 33

ii

APPENDICES

APPENDIX A:

The opinion of the Court of

Appeals in Rado v. State of Con-

necticut reported at 607 F.2d

SS ee cae ee ang bo il star

APPENDIX B:

The unreported opinion of the

United €tates District Court in

Rado v. State of Connecticut.......

APPENDIX C:

The opinion of the Connecticut

affirming petitioner's convictions

reported at 172 Conn. 74, 372 A.2d

Oe Oi osc 6 6 bE 6 6866048 CES EDO ROE EDS

iii

TABLE OF AUTHORITIES

Page

CASES .

California v. Green, 399 U.S. 149

Le ee Gasca bea oe one eb bee derceess Oca

Douglas v. Alabama, 380 U.S. 415

Ob} Parr rrr T TT rrrererrrrnr fare

14,16,

25

Draper v. United States, 358 U.S.

307 CSP lide neer ses 6b ewes 600 080 60Oe

Dutton v. Evans, 400 U.S. 74 14,16

he BEEP eS Pere tee eee res «

Harris v. United States, 402 U.S.

573 CURT Sth ear wedasbeteeecesbacwvena

Namet v. United States, 373 U.S.

179 CLO heb ewan b6b-6.06 6086 6% 00's eee tas US

25

Parker v. Randolph, U.S.

CU Pee Recerca asadeeteeceesesocceencetesae

Rado v. Manson, 435 F.Supp. 349

(D.Conn. UTES es bee beeweoeeecenee te

Rado v. State of Connecticut, 607

F.2d 572 (2d Cat. iy, } rere se

Robbins v. Small, 371 F.2d 793

(1st ap 4 ge TET ee 66b 0b ane bese eee tees taeaee

29

iv

San Fratello v. United States, 340

F.2d 560 (5th Cis i.) rere 28

State v. Mosca, 90 Conn. 381, 97 A.

340 CUBIS) 6c cane be 6004 60% bee RRS 23

State v. Rado, 172 Conn. 74, 372

A.2d 159 TID 7O) cand net uwkseceeunecas 10

State v. Stal tings: 154 Conn. 272,

224 A.2d 1 ( 9 eee ee 23

United States v. Coppola, 479 F.2d

1153 (10th Ciz. Tete le ccetecoevacecaneae

United States v. Edwards, 366 F.2d

853 (2d Cir. Fela é4 chebaneedd caus 28

United States v. King, 461 F.2d 53

(8th Cir. IOS 4666465 604k 600600 eeeae

United States v. Mayes, 512 F.2d

637 (6th a et) errs Peers ee

31

United States v. White, 553 F.2d

310 (2d Cir. td) PPPs ee 23

OTHER AUTHORITIES

Advisory Committee Note to Rule

804(b)(4) [enacted as Rule

804(b)(3)], Federal Rules of

BVIGENCRc cecescvccecsessesessscscoes 23

Tait and LaPlante, Handbook of

Connecticut Evidence... cccccccccce 23

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

NO.

DONALD A. RADO,

PETITIONER,

V.

STATE OF CONNECTICUT AND JOHN

MANSON, COMMISSIONER OF CORRECTION,

RESPONDENTS.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

The petitioner Donald A. Rado prays

that a writ of certiorari issue to review

the judgment of the United States Court

of Appeals for the Second Circuit,

rendered on October 3, 1979, reversing

the decision of the United States Dis-

trict Court for the District of Connect-

icut and dismissing petitioner's appli-

cation for a writ of habeas corpus. The

district court had reversed petitioner's

Connecticut state court convictions of

conspiracy, robbery and burglary and had

ordered petitioner's retrial or release

from custody.

OPINIONS BELOW

The opinion of the court of appeals

is reported at 607 F.2d 572 and is

attached as Appendix A. The opinion of

the district court is unreported and is

attached as Appendix B. A preliminary

ruling on petitioner's motion for bond in

the district court is reported at 435

F.Supp. 349. Petitioner's convictions

were Originally affirmed by the Connect-

icut Supreme Court in an opinion re-

ported at 172 Conn. 74, 372 A.2d 159 and

attached as Appendix C.

JURISDICTION

The opinion of the court of appeals

was rendered on October 3, 1979, and

Rado's petition for rehearing was denied

on January 4, 1980. The jurisdiction of

this Court is invoked under 28 U.S.C.

§1254(1).

QUESTIONS PRESENTED

1. Was petitioner denied his consti-

tutional right under the Sixth and

Fourteenth Amendments to confront the

witnesses against him by the prosecutor's

use of a co-defendant's hearsay state-

ments, when the co-defendant refused to

testify on Fifth Amendment grounds

concerning the truth or falsity of the

statements or petitioner's alleged

involvement in the crimes charged?

2. Did the prosecutor's deliberate

and repeated elicitation at petitioner's

trial of a co-defendant's invocation of

his Fifth Amendment privilege on ques-

tions concerning petitioner's alleged

involvement in the crime charged deprive

petitioner of his constitutional right to

due process of law and confrontation, as

guaranteed by the Fifth, Sixth and

Fourteenth Amendments?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the Constitu-

tion of the United States provides in

pertinent part, as follows:

No person shall be ... deprived

of life, liberty or property with-

out due process of law.

The Sixth Amendment to the Constitu-

tion of the United States provides in

pertinent part, as follows:

In all criminal prosecutions,

the accused shall enjoy the right

to ... be confronted with the

witnesses against him.

The Fourteenth Amendment to the

Constitution of the United States

provides in pertinent part, as follows:

No State shall make or enforce

any law which shall abridge the

privileges or immunities of the

citizens of the United States; nor

shall any State deprive any person

of life, liberty or property

without due process of law.

28 U.S.C. §2241 provides in pertinent

part, as follows:

a. Writs of habeas corpus

may be granted by the Supreme

Court, any justice thereof, the

district courts and any circuit

judge within their respective

jurisdictions. The order of a

circuit judge shall be entered in

the records of the district

wherein the restraint complained

of is had.

c. The writ cf habeas corpus

shall not extend to a prisoner

unless --

(3) He is in custody in viola-

tion of the Constitution or laws

Or treaties of the United States;

28 U.S.C. §2254 provides in pertinent

part, as follows:

a. The Supreme Court, a Justice

thereof, a Circuit judge, or a

district court shall entertain an

application for a writ of habeas

corpus in behalf of a person in

custody pursuant to the judgment

of a State Court only on the

ground that he is in custody in

violation of the Constitution or

laws or treaties of the United

States.

STATEMENT OF THE CASE

I. STATEMENT OF THE FACTS

In December 1972, Donald A. Rado

stood trial in Connecticut Superior Court

at Waterbury on charges of conspiracy,

robbery and burglary, stemming from a

robbery of a Waterbury woman at her home

the previous July. Rado was not accused

of having actually committed the offenses

charged, but was alleged to have parti-

cipated in the planning of the crime.

Rado had been arrested on the basis of

statements given by three men who,

subsequent to arrest on other charges,

had confessed to the robbery and claimed

Rado was also involved. The three, Sean

Donnelly, Wayne Epprecht and Fred Hall,

pled guilty to involvement in the crime

prior to Rado's trial and were expected

to be the State's principal witnesses

against Rado.

Donnelly and Epprecht both testified

at trial that they and Hall had planned

the robbery at Rado's home on July 2,

1972, the day before the crime was

committed. This testimony was directly

refuted by two defense witnesses, Rado's

wife and his next door neighbor, who

testified that Donnelly and Epprecht had

not been at the house that day [T. 731,

843]*.

*References to the trial transcript

are denoted by the symbol "[T. | e

Although the record on appeal includes

only the transcript of Hall's testimony,

the Court of Appeals relied upon the

trial transcript in its opinion.

Donnelly and Epprecht also testified

that they had had further discussion with

Rado concerning the crime the next day,

July 3, 1972, at Rado's home. This

testimony was, however, seriously weak-

ened by Donnelly and Epprecht's inability

to agree on the time of day they arrived

at Rado'’s house [T. 162-3, 254], the

manner in which they got there [T. 218,

254], and their activities earlier that

day prior to their alleged visit to

Rado's home [T. 160, 268]. Donnelly's

testimony was additionally impeached by

an inconsistent statement he had given to

the police concerning disposal of the

guns used in the robbery [T. 203-4] and

by his admission that he was a former

drug addict who had been using drugs in

July 1972 [T. 230]. Epprecht's credi-

bility received a staggering blow when,

after the defense produced documents

contradicting his testimony, he was

recalled by the prosecutor and admitted

he had committed perjury concerning his

prior contacts with the Waterbury area

[T. 853-4].

The defense admitted that Donnelly and

Epprecht had been at Rado's house for a

short time on July 3, 1972 [T. 735, 738,

770), but produced evidence contradicting

their claim of having planned the robbery

with Rado on that day [T. 754-67].

Given this less than compelling

evidence by Donnelly and Epprecht

of Rado's culpability, the testimony of

(Footnote page 5, continued)

Petitioner, therefore, presents a full

Statement of the case based upon the

entire trial transcript.

Fred Hall, the third admitted perpetra-

tor, took on critical significance. Hall

was Older than Donnelly and Epprecht, had

known Rado for a number of years, and

could either confirm or deny Donnelly and

Epprecht's account of Rado's involvement

in planning the crime on July 2 and 3,

1972.

Hall, however, refused to testify

concerning the details of the robbery.

During his testimony, he repeatedly

attempted to invoke his Fifth Amendment

privilege against self-incrimination when

questioned concerning his participation

in the robbery [T. 360, 366, 372, 375,

377, 378, 380, 381, 382, 383, 389, 395,

396, 307) « Although the trial court

overruled Hall's claims of privilege and

ordered him to answer the prosecutor's

questions [see, e.g., T. 375-77], Hall

continued to resist surrender of the

privilege on questions implicating

himself (and Rado) in the robbery [see,

e.g., T. 395-97). The trial court, in

the presence of the jury, declared Hall a

hostile witness [T. 369] and subsequently

(after excusing the jury) held Hall in

contempt [T. 393-94]. Nonetheless, Hall

persisted in his refusal to testify

concerning the robbery and did not

incriminate Rado [T. 395-97].

The issues involved in this appeal

arise as a result of the conduct of the

prosecutor when confronted with Hall's

refusal to testify concerning the crimes

charged. In the face of Hall's repeated

invocation of the Fifth Amendment, the

prosecutor pursued two impermissible

lines of examination. First, under the

guise of "“refreshing" Hall's recollec-

tion, the prosecutor asked Hall whether

he "remembered" the statements made by

the prosecutor and Hall at the time of

Hall's guilty plea [T. 381, 387-92].

Confronting Hall with a transcript of the

guilty plea proceedings, the prosecutor

read aloud the factual recitation of the

offenses stated by the prosecutor at that

proceeding and acknowledged by Hall, at

that proceeding [T. 388, 390-92]. While

Hall admitted at trial that the prior

statements had been made [id.], he

refused to testify concerning the truth

or falsity of the prior statements [T.

389-90], nor would he testify concerning

the details of the robbery. Thus, the

prior description of the offenses --

which implicated Rado* -- was heard by

the jury and could not be subjected to

cross-examination by Rado. The remainder

of Hall's testimony did not directly

implicate Rado.

A second tactic adopted by the prose-

cutor was equally immune from cross-

examination. At the conclusion of Hall's

direct examination [T. 395-97] -- after

it was abundantly clear that Hall would

not testify concerning the details of the

robbery -- the prosecutor asked a series

of “questions" designed to convey to the

jury Rado's involvement in the offenses

* The prosecutor's description of the

offenses had concluded: Prior to driving

to the home, this scheme, this plan to

commit the crime had been discussed with

the conspirators Rado, Donnelly and

Epprecht, and Hall [T. 388].

charged;** when, as expected, Hall re-

fused to answer, the questions were

withdrawn, leaving Rado no way to refute

the inevitable inference the jury would

draw against him from the questions and

Hall's refusal to incriminate himself.

Rado was convicted at trial and was

subsequently sentenced to six to twelve

years incarceration.

**See pp. 23-24, infra.

10

II. HISTORY OF THE PROCEEDINGS

Rado's convictions were affirmed by

the Connecticut Supreme Court on December

14, 1976. State v. Rado, 172 Conn. 74,

372 A.2d 159 (1976), cert. den., 430 U.S.

918 (1977).

In March 1977, petitioner filed the

instant application for a writ of habeas

corpus in the United States District

Court for the District of Connecticut.

Bond pending disposition of the applica-

tion was established, the court noting

the “high probability of success" on

the merits of the petition, Rado v.

Manson, 435 F.Supp. 349, 351 (D.Conn.

1977), as well as Rado's lack of criminal

background. Id. Rado, who was 46 years

old, had never been incarcerated before

and had no prior felony record. Id.

An evidentiary hearing was held on

Rado's claims on October 6, 1977. On

October 24, 1978, the court rendered its

opinion on Rado's application, upholding

Rado's claims of constitutional error in

the conduct of his trial, and ordering

petitioner's release unless the State

elected to retry Rado within 60 days.

The district court's ruling was stayed

pending the State's timely appeal to the

court of appeals. On October 3, 1979,

the court of appeals reversed the opinion

of the district court. Rado v. State of

Connecticut, 607 F.2d 572 (1979). Rado's

petition for rehearing was denied on

January 4, 1980.

11

REASONS FOR GRANTING

REVIEW OF CERTIORARI

At petitioner's state court trial,

the prosecutor pursued two impermissible

lines of examination when confronted with

a co-defendant's Fifth Amendment refusal

to testify concerning the details of the

crimes charged against petitioner.

First, the prosecutor read aloud from

the transcript of the co-defendant's

guilty plea proceedings, asking the co-

defendant whether he "remembered" the

statements made by the prosecutor and him

at that time. While the witness admitted

at trial that the statements (which im-

plicated petitioner) had been made, he

refused to acknowledge whether the state-

ments were true or false or otherwise

testify concerning the details of the

crime.

Second, at the conclusion of the same

witness’ direct examination, after the

witness had repeatedly invoked his Fifth

Amendment privilege and had been held in

contempt of court for his refusal to

testify concerning the robbery, the

prosecutor asked a series of "questions"

designed to convey to the jury the

prosecutor's theory of petitioner's

involvement in the crime. When, as

expected, the witness refused to answer,

the questions were withdrawn. The

district court concluded, after recei.ing

the prosecutor's testimony at an evi-

dentiary hearing, that the questions were

deliberately posed to elicit the witness'

Fifth Amendment invocation.

12

The district court concluded that the

prosecutor's use of Hall's prior state-

ments violated petitioner's right to

confront the witnesses against him,

relying specifically on this Court's

holding in Douglas v. Alabama, 380 U.S.

415 (1965). The district court further

held that the prosecutor's deliberate

questioning of the witness in a manner

designed to elicit the witness' invoca-

tion of the Fifth Amendment privilege on

critical issues at trial constituted

prosecutorial misconduct in violation of

petitioner's right to due process of law,

as suggested in Namet v. United States,

373 U.S. 179 (1963).

The court of appeals reversed on

both grounds. Although recognizing that

the facts of this case are virtually

identical to those presented in Douglas,

the panel ruled that Douglas does not

compel reversal of Rado's convictions.

The court held that Douglas does not

apply since Hall's hearsay statements

against Rado were not the "sole" evidence

of guilt, as in Douglas, and were thus

not “crucial” or “devastating.” This

surprising conclusion was reached without

benefit of the entire trial transcript,

(which was not before the court) and in

the absence of any such argument by the

State (which had specifically declined

any harmless error claim). In fact,

Hall's hearsay statements added critical

weight to the inconsistent testimony of

the two other admitted perpetrators.

The court of appeals further held that

Douglas was inapplicable because Hall

was “available” for cross-examination --

13

a conclusion wholly belied by Hall's

refusal to answer any questions concern-

ing the robbery or the hearsay statements

at issue. In fact, Hall was held in

contempt of court for his refusal to

follow the trial court's orders to answer

such questions.

Finally, the court of appeals con-

cluded that Hall's hearsay statements

contained sufficient indicia of relia-

bility to satisfy constitutional require-

ments for admissibility. Hall, however,

did no more than acknowledge the "sub-

Stantial" accuracy of the prosecutor's

factual summary at the guilty plea

proceedings. The statements were not

under oath and were, in fact, made at a

time when Hall stood to reduce his

sentence by cooperating against Rado [JDZ

11,22)*. Moreover, neither the prose-

cutor's remarks, nor Hall's concurrence

at that time contained sufficient detail

to lend internal assurances of relia-

bility.

The court of appeals‘ opinion sub-

Stantially modifies this Court's holding

in Douglas v. Alabama, supra, and calls

into question the continued vitality of

that decision. This case presents an

opportunity for the Court to clarify the

present viability of Douglas as well as

to explicate further the interplay of

availability of the declarant and reli-

ability and cruciality of the hearsay

evidence in the determination of when the

*Reference is to the testimony of

Jacob D. Zeldes, Esq., Hall's attorney,

at the evidentiary hearing.

14

admission of hearsay constitutes a

violation of the Confrontation Clause.

See Dutton v. Evans, 400 U.S. 74 (1970).

The court of appeals also rejected the

district court's reliance on a Namet

violation as a basis for reversal of

Rado's convictions. In Namet v. United

States, 373 U.S. 179 (1963), the Court

suggested that a prosecutor's deliberate

elicitation at trial of a witness' invo-

cation of his Fifth Amendment privilege

would constitute reversible error. While

the Namet principles were elevated to

constitutional level in Douglas v. Ala-

bama, 380 U.S. at 419-20, the Court has

not since Namet articulated the parame-

ters of the Fifth and Sixth Amendment

violations at issue or the standards

for lower court review of such claims.

This case presents an appropriate factual

record on which to do so.

Hall invoked his Fifth Amendment

privilege nineteen times during the

course of his direct examination by the

prosecutor, often in response to ques-

tions previously asked and unanswered.

At the conclusion of Hall's direct

examination, when his refusal to testify

concerning the robbery was well-estab-

lished, the prosecutor asked a series of

final questions designed to convey his

theory of Rado's involvement in the

crime. The questions were recitative in

nature, inflammatory in syntex, and,

coming at the end of Hall's testimony,

dramatic in impact. The questions were

withdrawn when, as expected, Hall invoked

his privilege. The district court, which

received the prosecutor's testimony at

15

the evidentiary hearing below, specifi-

cally concluded that the questions were

asked in order to elicit the witness'

invocation of the privilege.

The court of appeals' holding that no

prosecutorial misconduct occurred as a

result of this questioning by the

prosecutor is contrary to the explicit

finding by the district court and in

conflict with opinions from other cir-

cuits. See e.g., Robbins v. Small, 371

F.2d 793 (ist Cir. 1967); United States

v. Mayes, 512 F.2d 637 (6th Cir. 1975).

The facts of this case provide a basis

for the Court to explicate the constitu-

tional dimensions and articulate guide-

lines and standards for review of Namet

claims.

Rado, who has never before been incar-

cerated and, at age 46, has no prior

felony record, was convicted at trial in

large part because of the prosecutor's

conduct during Hall's testimony. A writ

of certiorari should be granted to review

and reverse the convictions obtained

through such unfairness.

16

I. THE COURT SHOULD GRANT A WRIT OF

CERTIORARI TO REVIEW THE COURT OF

APPEALS' SUBSTANTIAL MODIFICATION OF

POUGLAS V. ALABAMA AND CLARIFY THE

CONTINUED VIABILITY OF THE CONFRON-

TATION CLAUSE PRINCIPLES AFFIRMED IN

THAT DECISION.

The facts of this case and the court

of appeals’ holding call into question

the continued viability of this Court's

holding in Douglas v. Alabama and more

generally the interplay between hearsay

rules and the Confrontation Clause that

has troubled this Court on numerous

occasions. See, e.g., Dutton v. Evans,

400 U.S. 74 (1970); Parker v. Randolph,

U.S. (1979).

As the court of appeals recognized,

the facts of this case are virtually

identical to the facts of Douglas v.

Alabama, 380 U.S. 415 (1965), where the

Court reversed a state prisoner's convic-

tion because the prosecutor had employed

an accomplice's prior inculpatory state-

ment in exactly the way Hall's prior

statements were used at Rado's trial.

Indeed, the parallels between the

facts of Douglas and the instant case are

striking. As with Hall in the instant

case, Loyd, the accomplice in Douglas,

had been found guilty at a prior proceed-

ing and was called to testify by the

State, prior to sentencing, at a co-

defendant's trial. As in the instant

case, the accomplice attempted to invoke

his Fifth Amendment privilege, was

overruled by the trial judge, and ordered

“a

17

to answer questions concerning the crime

charged. As in the instant case, the

accomplice persisted in his Fifth

Amendment claim, was declared a hostile

witness, and was threatened by the court

with a contempt citation. As in the

instant case, the state prosecutor then

produced a prior statement by the accom-

plice implicating the defendant and

"{u]Jnder the guise of cross-examination

to refresh Loyd's recollection" read the

statement to the jury, "pausing after

every few sentences to ask Loyd, in the

presence of the jury, 'Did you make that

Statement?'" 380 U.S. at 416. Finally,

as in the instant case, the genuineness

of the accomplice's statement was proven

by the state (through the testimony of

police officers who had observed Loyd

sign it), but the accomplice refused to

answer questions concerning the truth of

the statement.

In Douglas, the Court held that the

defendant's “inability to cross-examine

Loyd as to the alleged confession plainly

denied him the right of cross-examination

secured by the Confrontation Clause."

380 U.S. at 419. The Court recognized

that the jury was likely to treat the

prosecutor's reading of Loyd's statement

as the equivalent of evidence and infer

from Loyd's refusal to testify that the

admissions in the statement incriminating

Douglas were true. Since Douglas had no

way to cross-examine Loyd (or the prose-

cutor) on the statement, and since the

statement bore on a fundamental issue in

the case, reversal of Douglas’ conviction

was required. As the Court concluded,

18

"Since the [State's] evidence

tended to show only that Loyd made

the confession, cross-examination

-.-asS to its genuineness could not

substitute for cross-examination

of Loyd to test the truth of the

Statement itself." Id., at 419-20

(as quoted in California v. Green,

399 U.S. 149, 163 [1970]).

The court of appeals attempted to

distinguish the holding in Douglas on

three grounds: first, on the ground that

Hall's statements were not "crucial" to

the State's case; second, on the ground

that Hall was, in fact, available for

cross-examination; and third, on the

ground that Hall's prior statements were

inherently reliable. Each of these

grounds is unfounded.

a. "Cruciality"

The panel's conclusion that Hall's

hearsay statements were not crucial is

unsupportable.* Rado did not dispute the

testimony of Donnelly and Epprecht, the

*In its opinion, the panel drew at

length on the trial transcript to justify

its conclusion that Hall's hearsay state-

ments were not crucial to the State's

case. Such reliance on the transcript

calls into question the fairness of these

proceedings, since the entire trial

transcript was never introduced below or

made a part of the record on appeal. The

reason the entire transcript was not

introduced is especially significant: in

the district court, the State conceded

19

two young co-conspirators, that they had

been to his house on the day of the

robbery, but did dispute their allega-

tions that he had planned the robbery

with them that day and the day before.

Two defense witnesses directly refuted

Donnelly's and Epprecht's claim that they

had been at Rado's house the day before

the crime [T. 843, 731], and the State's

case was further weakened by serious

inconsistencies in Donnelly's and Ep-

precht's testimony, most notably as to

the time of day they were at Rado's house

[T. 162-3, 212, 254-5], the manner in

which they got to Rado's house [T. 218,

254], and their activities earlier in the

day [T. 160, 268]. Donnelly's testimony

was additionally undermined by an incon-

sistent statement he had given to the

police concerning disposal of the guns

used in the robbery [T. 203-4], and

Epprecht's credibility was completely

demolished by his subsequent admission of

perjury when recalled by the State to

explain documents produced by the defense

contradicting his testimony concerning

his familiarity with Waterbury and prior

presence in Connecticut [T. 853-4].

Indeed, the trial court charged the jury

that it could disregard Donnelly's

testimony in its entirety because of the

perjury [T. 945-6]. In addition, Don-

nelly and Epprecht's accomplice testi-

(Footnote page 18, continued)

that if error had occurred in the reading

of Hall's plea transcript, it could not

be deemed harmless. Thus, in the dis-

trict court, only the transcript of

Hall's testimony was introduced as an

exhibit.

20

mony was, Of course, subject to careful

Scrutiny under any circumstances [T.

948-50 (charge on accomplice testimony)].

Under such circumstances, Hall's cor-

roboration of Rado's involvement in

Planning the crime took on critical

importance. Hall was older than Donnelly

and Epprecht, had known Rado for a number

of years, and could, the State apparently

believed, give the lie to Rado's claim

that Donnelly and Epprecht were innocent-

ly at Rado's house at Hall's request on

the day of the crime and not there the

preceding day. The corroboration the

State sought was not, however, forth-

coming from Hall, but was supplied,

impermissibly, by the prosecutor when he

read his and Hall's prior statements

aloud. In particular, this recitation

concluded with the prosecutor's reading:

Prior to driving to the home,

this scheme, this plan to commit

the crime had been discussed with

the conspirators Rado, Donnelly

and Epprecht, and Hall. [T.

388]

Hall's hearsay statements were clearly of

Significant weight to the State's case

against petitioner.

b.- Hall's "availability" for cross-

examination.

The panel also held that, unlike the

declarant in Douglas, Hall was, in fact,

available for effective cross-examination

concerning the veracity of his extra-

21

judicial statements. This holding is

wholly belied by the trial transcript.

At the outset of his testimony, Hall

specifically stated that "I would like to

reserve my right not to answer certain

questions that I don't feel as though I

want to answer [T. 360]," and as the

panel opinion concedes, “Hall never

answered any questions concerning the

details of the robbery." 607 F.2d at

850. On numerous occasions, Hall refused

to answer questions, even though ordered

to do so by the court, forcing the prose-

cutor to withdraw his questions [T. 386,

389, 395-97, 408, 410, 412]. On several

other occasions, Hall “complied” with the

court's order by furnishing a plainly

evasive or unresponsive answer [T. 380,

381], ultimately prompting the trial

court to hold Hall in contempt, the

court stating:

Mr. Hall, time and again this

Court has ordered you to respond

to certain questions. Your

attitude has been one of defiance

and disregard of the Court's

order. I am going to find you in

contempt.

Sheriff, I want this man held in

contempt.

(T. 394]

Given Hall's persistent assertion of

his Fifth Amendment privilege, it would

have been foolhardy, indeed, for peti-

tioner's trial counsel to attempt cross-

examination on the prior statement. Had

22

Hall continued in his refusal to testify

about the robbery or the truth of the

prior statement, the damaging effects of

the statement would have been re-empha-

sized before the jury, without opportu-

nity for refutation.

Furthermore, the panel was clearly in

error in holding that Hall's admission

that he made the prior statement rendered

Hall available for cross-examination.

In Douglas, the state presented three law

enforcement officers to testify Loyd had

made the statement at issue. The Court

expressly rejected such evidence as a

substitute for cross-examination on the

truth of the statement itself:

Nor was the opportunity to cross-

examine the law enforcement

officers adequate to redress his

denial of the essential right

secured by the Confrontation

Clause. Indeed, their testimony

enhanced the danger that the jury

would treat the Solicitor's

questioning of Loyd and Loyd's

refusal to answer as proving the

truth of Loyd's alleged confes-

sion. But since their evidence

tended to show only that Loyd made

the confession, cross-examination

of them as to its genuineness

could not substitute for cross-

examination of Loyd to test the

truth of the statement itself.

380 U.S. at 419-20.

23

c. The “Reliability” of Hall's

Statements.

Nor did Hall's prior statements con-

tain any substantial indicia of reliabil-

ity. The description of the offenses set

forth at the guilty plea proceeding was

recited in the words of the prosecutor,

not Hall, acknowledged by Hall only as

"substantially correct and accurate," and

elicited at a time when Hall knew that

cooperation with the State against Rado

would result in a lesser sentence [JDZ

13s. Bad's The statements contained

little, if any, detail so as to render

them internally reliable, cf., Harris

v. United States, 403 U.S. 373 (1971);

Draper v. United States, 358 U.S. 307

(1959), and as statements against penal

interest, were in any event subject to

special scrutiny. United States v.

White, 553 F.2d 310, 313 n. 4 (2d Cir.

1977); Advisory Committee Note to Federal

Rules of Evidence 804(b)(4). Indeed,

because of the unreliability of such

statements, the Connecticut state courts

have refused to allow a hearsay exception

for statements against penal interest.

See Tait and LaPlante, Handbook of

Connecticut Evidence, §11.6, p. 196;

State v. Stallings, 154 Conn. 272, 287-8,

224 A.2d 718 (1966); State v. Mosca, 90

Conn. 381, 97 A. 340 (1916).

Petitioner recognizes that since

Douglas was decided, this Court has had

occasion to discuss at greater length the

interplay between the hearsay rules and

the Confrontation Clause. Parker v.

Randolph, supra; Dutton v. Evans, supra;

California v. Green, supra. While the

factors cited by the court of appeals

}

24

have been suggested in recent decisions,

the panel's opinion constitutes a sub-

stantial modification of Douglas unsup-

ported by controlling case law. More-

over, to the extent the panel ruled Hall

was “available” to testify despite his

ascertion of a Fifth Amendment privilege,

the opinion is clearly in conflict with

the law in other circuits.

The facts of this case thus present

the Couft an opportunity to clarify the

continued viability of Douglas after

Dutton v. Evans, supra, and to establish

the factors to be considered by lower

courts in assessing hearsay and Confron-

tation Clause violations.

25

II. THE COURT SHOULD GRANT A WRIT

OF CERTIORARI TO ARTICULATE THE DUE

PROCESS AND CONFRONTATION CLAUSE

PRINCIPLES IMPLICATED BY A PROSECU-

TOR'S DELIBERATE ELICITATION OF A

WITNESS‘ INVOCATION OF THE FIFTH

AMENDMENT PRIVILEGE.

In Namet v. United States, 373 U.S.

173 (1963), this Court recognized that a

witness’ invocation of his Fifth Amend-

ment privilege in the presence of the

jury at a criminal trial could lend

critical weight to the case against a

defendant and unfairly influence a jury

to convict on the basis of inferences not

subject to cross-examination. The

holding in Namet suggested that a prose-

cutor's intentional elicitation of a

witness' privilege would constitute

misconduct. 373 U.S. at 186-87. Al-

though the Court has subsequently ac-

knowledged the constitutional basis of

the Namet holding, Douglas v. Alabama,

380 U.S. at 419-20, the Court did not in

Namet -- and has not in the seventeen

years since Namet was decided -- ar-

ticulate the prerequisites for a consti-

tutional violation or the standards for

lower court review of such claims. This

case presents an appropriate factual

record on which to do so.

During the course of his testimony,

Hall invoked his Fifth Amendment privi-

lege against self-incrimination nineteen

times in attempts to avoid answering

questions concerning his’ participation

and Rado's alleged involvement in the

robbery. He was repeatedly pressed for

answers by the prosecutor and trial

26

court, was declared a hostile witness,

-and was permitted to engage in colloquies

with the court over his attempt to avoid

self-incrimination. All this occurred in

the presence of the jury. Finally, at

the end of Hall's direct examination,

after Hall had been held in contempt of

court and taken into custody "for his

defiance and disregard of the Court's

order [T. 394]" to answer questions

concerning the robbery, the prosecutor

propounded four questions clearly de-

signed to summarize for the jury the

prosecution's theory of Rado's involve-

ment in the crime; the questions were

all withdrawn when Hall invoked his

privilege:

Q. Mr. Hall, did you plan at

Mr. Rado's home on the afternoon

of July 3, 1972, with Epprecht

and Donnelly, together with Mr.

Rado, to rob Mrs. Hyman?

The Witness: If your Honor

please, I refuse to answer the

question on the grounds that it

might tend to incriminate me.

Mr. McDonald: I won't press

(T.

27

Mr. McDonald: I won't press

that question.

By Mr. McDonald:

Q. Were the walkie-talkies

given to these men or to Donnelly

and to you by Mr. Rado to perpe-

trate this armed robbery against

Mrs. Hyman on that day?

The Witness: If your Honor

please, I refuse to answer the

question on the grounds that it

might tend to incriminate me.

By Mr. McDonald:

Q. Can you see the home of Mrs.

Hyman from the back porch of Mr.

Rado's house?

The Witness: If your Honor

please, I refuse to answer the

question on the grounds that it

might tend to incriminate me.

395-397)

All this occurred even though the

the question.

By Mr. McDonald:

Q. In your presence were

firearms given to Epprecht and

Donnelly at the home of Donald

Rado?

The Witness: If your Honor

please, I refuse to answer the

question on the grounds that it

might tend to incriminate me.

prosecutor had been informed prior to

trial that Hall might invoke his Fifth

Amendment privilege if called as a wit-

ness and had agreed to honor the privi-

lege if invoked by Hall [JDZ 12-13].

After hearing the prosecutor's testi-

mony at the evidentiary hearing below,

the district court specifically concluded

that the final series of questions was

asked solely to have the jury hear Hall's

28

refusals to testify. The district court

found an intentional violation of Rado's

due process rights in such conduct and

reversed Rado's convictions.

Notwithstanding these facts, the panel

reversed, finding no misconduct or due

process violation. The panel opinion

upholding the prosecutor's conduct at

trial stands in marked conflict with the

decisions of the other circuits, both as

to the existence of prosecutorial miscon-

duct and as to the resulting due process

violation. Robbins v. Small, 371 F.2d

793, 795 (ist Cir. 1967); United States

v. Mayes, 512 F.2d 637, 650 (6th Cir.

1975); United States v. King, 461 F.2d

53, 56-57 (8th Cir. 1972); United States

v. Coppola, 479 F.2d 1153, 1160 (10th

Cir. 1973).

Even if the prosecutor was originally

justified in calling Hall and questioning

him in the jury's presence, but see San

29

dramatic in impact. Furthermore, no

attempt was made to pursue the questions

once Hall invoked his privilege, nor was

the series of questions discontinued when

it became clear that Hall would not

answer.

In upholding the prosecutor's conduct,

the panel completely disregarded the

finding of fact by the district court,

based upon the testimony it received at

an evidentiary hearing, of the prosecu-

tor's improper motive in asking the

questions. The panel also disregarded

the consistent decisions of the other

circuits condemning a prosecutor's

continued examination of a witness once

the witness’ intention not to answer on

Fifth Amendment grounds is apparent. In

Robbins v. Small, 371 F.2d at 795, the

Fratello v. United States, 340 F.2d 560,

565 (5th Cir. 1965); United States v.

Edwards, 366 F.2d 853, 870 (2d Cir.

1966), there can be little doubt that the

prosecutor's questions at the end of the

examination were deliberately designed to

induce the jury to draw an inference of

Rado's involvement in the crime. The

questions were propounded after Hall had

been held in contempt for refusing to

answer incriminating questions as direct-

ed by the court, without any attempt to

discover, or reason to believe, that

Hall's well-established silence would be

abandoned. The questions were recitative

in nature, inflammatory in syntex, and,

coming at the end of the questioning,

First Circuit reversed a state prisoner's

conviction because of just such conduct

by the prosecutor, stating:

When it became apparent to the

prosecutor that this witness was

broadly claiming the privilege,

basic fairness required that he

discontinue his leading ques-

tions. Yet he persisted with at

least six even more damaging

ones, which by this time he knew

Or certainly should have known

the witness would not answer.

As the Robbins court observed, it made no

difference that the prosecutor did not

initially know the witness would refuse

to testify. Id. at n.11.

30

Similarly, in United States v. King,

461 F.2d at 56, the Eighth Circuit

condemned a prosecutor's continued

questioning of various witnesses after

their intentions to rely upon their

privilege became clear, holding,

"The government's motives must

be viewed disapprovingly in light

of its persistence in questioning

these witnesses once it knew of

their intentions not to testify,

and particularly in asking ques-

tions which would be certain to

elicit the privilege against

self-incrimination. This was no

minor lapse of judgment."

In King, the court reversed the defen-

dant*s conviction even though the trial

court had given a cautionary instruction

to the jury to draw no inference from the

invocation of the privilege. Id. at 57

n.4.

As the Tenth Circuit has also remark-

ed, reversing a conviction for the same

reason in United States v. Coppola, 479

F.2d at 1160:

The ruling in Namet goes no fur-

ther than to allow the govern-

ment to call a witness so as to

give that witness an opportunity

to answer particular questions.

It does not stand for allowing

the prosecution to ask various

and sundry questions which are

certain to produce a claim of

privilege and to give rise to an

atmosphere of guilt.

a

31

See also United States v. Mayes, 512 F.2d

at 650 ["The extensive nature of the

questioning after determining that the

witness would continue to invoke the

privilege was, in any event, an unfair

trial tactic on the part of the prosecu-

tion"].

The panel also failed to consider the

deliberately repetitive nature of the

prosecutor's questioning. Thus, for

example, Hall was asked on two occasions

about the view from Rado's porch [T. 396,

412] and on two occasions about the

walkie-talkies used during the robbery

[T. 396, 401]. Each time he refused to

answer. Similarly, he was asked twice

about seeing firearms at Rado's house [T.

381, 396), invoking his privilege both

times. After refusing to answer if he

was at Rado's house on July 3, 1972 [T.

378], he was later asked why he went to

Rado's house on that day [T. 408]. The

repetitive nature of the questioning

unnecessarily insured that the prejudi-

cial impact of the witness' claim of

privilege would not dissipate and also

highlighted for the jury the key areas of

prosecutorial interest in Hall's "“testi-

mony."

Equally important as the number of

questions asked, the entire tenor of

Hall's direct examination was likely to

influence the jury adversely. Hall was

repeatedly mocked by the prosecutor [T.

379, 381, 393] and accused of untruthful-

ness [T. 409] in the presence of the

jury, even though the prosecutor subse-

quently stated, outside the presence of

the jury, that he believed Hall to have

32

been truthful [T. 414]. Hall was declar-

ed a hostile witness by the court in

the jury's presence [T. 369], and his

repeated attempts to invoke his privilege

were often met with summary rejection by

the court [T. 378, 381, 382-83]. Hall's

request to speak with his attorney was

rejected by the court, in the jury's

presence [T. 377]. Furthermore, the

trial court failed to give any curative

instruction limiting the prejudicial

impact of Hall's invocations of the

privilege.

The facts of this case clearly estab-

lish the prosecutor's deliberate elici-

tation of a co-defendant's Fifth Amend-

ment privilege to prejudice the jury's

finding of guilt or innocence. The panel

opinion upholding such conduct is in

conflict with the law in the other cir-

cuits. The Court should grant certiorari

to reverse the panel opinion and clarify

the constitutional principles implicated

by such prosecutorial misconduct.

33

CONCLUSION

For the foregoing reasons this Peti-

tion for Writ of Certiorari should be

granted.

THE PETITIONER,

DONALD A. RADO,

BY /s/ DAVID S. GOLUB

DAVID S. GOLUB

SILVER, GOLUB & SANDAK

733 SUMMER STREET

STAMFORD, CONNECTICUT

(203) 325-4491

ATTORNEYS FOR PETITIONER

34

CERTIFICATION

This is to certify that a copy of the

foregoing has been sent to Robert E.

Beach, Jr., Esq., Assistant State's

Attorney, P. O. Box 5000, Wallingford,

Connecticut this 4th day of February,

1980.

/s/ DAVID S. GOLUB

DAVID S. GOLUB

OE tna ore Renetaatienie’