Reply Brief — Cohen v. Pennsylvania

es

Supreme Court, U.§

FILED

No. 79-2000 SEP 16 1980

IN THE MICHAEL RODAK, Jp, CLERK |

Supreme Court of the United States si

OcToBER TERM, 1979

Stuart RICHARD COHEN,

Petitioner,

vs.

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Cotrf df Pennsylvania

REPLY BRIEF OF PETITIONER

Wa ter H. FLEISCHER

1730 K Street, N.W.

Washington, D.C. 20006

(202) 331-8888

Counsel of Record

EMMANUEL H. Drmitriov

522-24 Court Street

Post Office Box 677

Reading, Pennsylvania 19601

Counsel for Petitioner

Of Counsel:

CoLE and Groner, P.C.

1730 K Street, N.W.

Washington, D.C. 20006

Press or Byron 8S. Avams Printina, Inc., WAsHINOTON, D. C.

TABLE OF AUTHORITIES

Page

Arizona v. Washington, 434 U.S. 497 (1978) ...... 5

Brady v. Maryland, 373 U.t. 83 (1963) ............ 4

Jencks v. United States, 353 U.S. 657 (1957) ........ 4

McNabb v. United States, 318 U.S. 332 (1943) ....... 4

United States v. Russell, 411 U.S. 423 (1973) ........ 5

No. 79-2000

IN THE

Supreme Court of the United States

OcroBER TERM, 1979

Stuart RicHARD COHEN,

Petitioner,

vs.

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of Pennsylvania

REPLY BRIEF OF PETITIONER

Respondent’s Brief in Opposition (‘‘Br. in Opp.’’)

primarily attempts to dilute the impact of prosecu-

torial misconduct, the occurrence of which it cannot

directly deny. This Reply will stress a few points use-

ful in keeping matters in correct perspective and show-

ing the illogic of Respondent’s principal contentions.

1. Respondent denies that describing the electric

chair and the smell of burning flesh to witnesses con-

stituted a ‘‘threat.’’ But such actions undisputedly had

the effect of reducing the prosecution’s chief witness

to tears and eliciting statements inculpatory of Peti-

2

tioner Stuart Richard Cohen. Respondent is far off the

mark in caviling about the ‘‘context’’ of this heinous

activity. It is completely unexplainable except as a

deliberate coercion of the witnesses, and cou'd have

had no other purpose.’ Thus the issues set forth in the

Petition as to whether such conduct requires dismissal

of the indictment are squarely presented.

2. Respondent does not deny the impropriety of the

prosecutor’s extraordinary promise to key witness

Anthony Reynolds to confer with the judge and ‘‘de-

termine what could be done for Mr. Reynolds” (R.

35a).” This was not a usual] plea bargain in which a

prosecutor agreed to make a formal recommendation,

but rather implied a special relationship with, and

ability to obtain results from, ‘‘the Judge.’’ Respon-

dent notes (Br. in Opp., p. 3) that the promise was not

earried out. Respondent does not explain how that

makes it any less a part of a pattern of coercive threats

and inducements.

3. Although acknowledging another procedural im-

propriety, Respondent is unable fully to agree with

the testimony of the President Judge of the Court of

Common Pleas (R. 55a) that the release from prison

of Geisler, by means of the Assistant District Attor-

ney’s signing as surety, was ‘‘highly improper.’”’ It

may be, as Respondent urges (Br. in Opp., p. 4) that

any distraught felon ‘‘would benefit’? from a release

* That one witness, Jack Geisler, later accommodated the prose-

cutor by denying that he was ‘‘threatened’’ only underscores the

completeness of the intimidation.

***R.”’ refers to the Appendix filed in the Supreme Court of

Pennsylvania.

3

from inearceration, but it is extraordinary, and co-

ercive, lenity for a prosecutor personally to sign out

an accused murderer in this manner.

4. Respondent is incorrect in asserting (Br. in

Opp., p. 5) that the record ‘‘contains no evidence that

the district attorney instructed a potential witness not

to speak to defense counsel prior to trial’? and that

there is ‘‘no evidence in the record that petitioner’s

counsel or investigators ever made an attempt to speak

with Abraham or any other witness prior to trial.’’

The undisputed evidence on this point, including affi-

davits of defense counsel, instead shows that witness

Richard Wamsher, when approached by defense coun-

sel, directly stated that he had received such instruc-

tions (R. 548a, 549a) and that the instructions to turn-

keys quoted in the Petition (p.6) applied generally (R.

461a). A belated order at trial that the prosecutor

stop this outrage does not negate the fact of wilful

pretrial obstruction of the defense.

5. Respondent admits (Br. in Opp., p. 6) that the

District Attorney ordered the police prosecutor not

to keep daily police records of the investigation, in

contravention of normal practice, Respondent’s excuse

for this deliberate scrapping of orderly procedures—

that police reports might leak to the public—on its

face is disingenuous and unworthy. It ill behooves a

prosecutor to so demean the responsibility of police

officials. Coming from one who had severe investigatory

excesses to conceal the excuse is particularly unaccept-

able if not incredible. Orderly procedure is the life-

blood of the law and the essence of due process; ‘‘[t]he

history of liberty has largely been the history of ob-

4

servance of procedural safeguards’’, McNabb v. United

States, 318 U.S. 332, 347 (1943) (Frankfurter, J.).’

6. The egregiously improper trial presentations of

the prosecution are amply documented, through ex-

tensive quotations in the Petition. Those materials on

their face show the deliberate and repeated character

of this aspect of the misconduct, and refute any notion

that it was ‘‘harmless.’’ How, for example, can it be

urged that repeated statements of the prosecutor to

the effect that he ‘‘would not knowingly put a liar on

the witness stand’’ (R. 485-486a) ‘‘were not so strong

or abusive that they incited prejudice in the eyes of

the jurors’’ (Br. in Opp., p. 7)? As on other matters,

Respondent’s arguments that somehow there is doubt

as to the ‘‘context’’ of such trial conduct, are baseless.

The context, and natural result, of such textbook over-

reaching of a prosecutor, was without subtlety: at

every stage of the trial he tried to influence the jury

improperly by placing the imprimatur of himself and

his office upon the credibility of his admittedly (Br.

in Opp., p. 3) ‘‘less than savory’’ witnesses, and other-

wise injecting irrelevant prejudicial matter into the

case.

- * * *

The faint effort of Respondent to diminish the im-

portance of the Due Process and Double Jeopardy

issues presented by the Petition is without substance.

Whether those fundamental Constitutional doctrines

*The prosceutor’s orders in this regard not only prevented the

compilation of a written record of investigatory excesses, but

limited possible judicial scrutiny of official records for materials

which would have had to be made available to the defense under

Brady vy. Maryland, 373 U.S. 83 (1963), and Jencks v. United

States, 353 U.S. 657 (1957).

5

are offended by a reprosecution in the face of the most

egregious forms of prosecutorial misconduct is a mat-

ter which, Petitioner submits, warrants plenary review

by this Court. Notwithstanding the arguments of

Respondent, this case implicating the very integrity of

judicial proceedings is an appropriate one for this

Court to give content to the principles stated in such

eases as United States v. Russell, 411 U.S. 423, 431-432

(1973); and Arizona v. Washington, 434 U.S. 497,

508-509 (1978), as discussed in the Petition (pp. 18-15).

CONCLUSION

For the reasons stated above, and in the Petition,

the Petition for a Writ of Certiorari should be granted.

Respectfully submitted,

Wa ter H, FLEISCHER

1730 K Street, N.W.

Washington, D.C. 20006

(202) 331-8888

Counsel of Record

EMMANUEL HEI, DimitriIou

522-24 Court Street

Post Office Box 677

Reading, Pennsylvania 19601

Counsel for Petitioner

Stuart Richard Cohen

Of Counsel:

CoLeE and Groner, P.C.

1730 K Street, N.W.

Washington, D.C. 20006