# Reply Brief — Cohen v. Pennsylvania > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2571%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1980 - **Citation:** 449 U.S. 840 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2571%3A3. Public record. Not legal advice.