Petitioners Reply Brief — Roy Snead, Jr., Sheriff of Calhoun County, Alabama v. J. L. Stringer, Etc

Office-Supreme Court, U.S.

FILLED

SEP 4 1981

ALEXANDER L. STEVAS,

NO. 80-2017 ose

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

ROY SNEAD, JR., SHERIFF, AND

FORREST DOBBINS, CLERK OF THE

CIRCUIT COURT OF CALHOUN COUNTY, ALABAMA,

Petitioners

Vv.

J. L. STRINGER, ALSO KNOWN AS

REV. JUDGE L. STRINGER,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

REPLY BRIEF AND ARGUMENT OF PETITIONER

CHARLES A. GRADDICK

ATTORNEY GENERAL OF ALABAMA

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

OF ALABAMA

OFFICE OF THE ATTORNEY GENERAL

250 Administrative Building

64 N. Union Street

Montgomery, Alabama 36130

(205) 834-5150

ATTORNEYS FOR PETITIONERS

TABLE OF CONTENTS

PAGE

TABLE OF CASES. ccccccccevccceevesees Al

REPLY ARGUMENT. .occccvccccccceeeeees lL

I. ON THE MASSIAH ISSUES...... 1

II. ON HARMLESS ERROR. «ceeeeees 5

CONCLUSION. ccccccccccccccccccccccees 0

CERTIFICATE OF SERVICE. .cccecceeceee 7

TABLE OF CASES

PAGE

Brewer v. Williams,

eSe > 51 leo Ed.

2d 424, 97 S. Ct. 1232

Cede Seckhb ones ebeenereseexe ee 4

Jackson v. Virginia,

eSe > 61 Le Ed.

2d 560, 99 S. Ct. 2781

Cores 600060506060 405.050668008% 5,6

Massiah v. United States,

eSe : Pe « Ed.

2d 246, 84 S. Ct. 1119

Centos wkbae ne bane hee ee éeoeeke i358

United States v. Henry,

Css 65 : Ed. 2d

TIS, 100 3. ot.

Bo RE REN Bes. 9a5o 4

43

REPLY ARGUMENT

I.

ON THE MASSIAH ISSUES

Mayor Stringer frankly admits that

the Rule of Massiah v. United States (377

U.S. 201, 12 ke B6. 24:°286, G8 8s Gt.

1119 [1964]) does not bar all counselless

contacts between prosecuting officials

and indictees. However, he vehemently

denies a contrary position by himself or

the District Court. Then, having denied

the position, he advances it. Consider

the following random quotations from

Mayor Stringer's brief:

", . eStringer had a right to

counsel when the call (contact)

was made. .. ." (Resp. Br. p.

7)

", . .The argument [of Peti-

tioner] as presented, is clear-

ly an effort to place a cloud

over what was a counselless

contact...." (Resp. Br. pp.

7-8)

", . ».The argument [of Peti-

tioner]. . .simply conglo-

merates two underlying cru-

cial determinations, which

have heretofore been ad-

dressed by this Court; those

being:

1. The rights of an indict-

ed person to counsel when

contacted by police and

prosecutorial officials...."

(Resp. Br. pp. 11-12)

The Petitioner must argue this way since,

if it is conceded that any counselless

contact is permissible, the most obvious-

ly permissible one would be a_e contact

with an indicted public official concern-

ing public records.

For reasons which this writer cannot

grasp, this sort of "double think" has

characterized this case throughout its

history in the Federal Courts. Consider,

for example, the District Court's hold-

ings: (1) That the District Attorney had

no improper motive in making the tele-

phone call, but (2) violated Mayor

Stringer's Constitutional rights by se-

curing an admission against interest.

This Honorable Court has never had

any occasion to address the question of

whether an indicted public official's

Sixth Amendment rights extend to public

records under his official custody.

Neither Massiah, supra, nor any case fol-

lowing it came close to the facts in this

case. Another way of putting this ques-

tion is suggested by Mayor Stringer:

Whether a "zone of privacy" (Resp. Br.

pp. 7 and 16) 1s created around an in-

dicted public official which extends to

his official records. Mayor Stringer

argues that there were other ways’ to ob-

tain these records, but this does not an-

swer the question of whether the way used

was proper. The other ways would have

raised other questions. For example, a

subpoena would have been delivered by the

sheriff and would likewise have involved

a counselless contact. Clearly this case

presents an important novel question

In Massiah, above, this Honorable

Court wrote:

". »« «We hold that the peti-

tioner was denied the basic

protections of that [Sixth

Amendment ] guarantee when there

‘was used against him at his

trial evidence of his: own in-

¢criminating words which fed-

era agents had deliberatel

attarrad from him after he was

indicted and in the absence of

his counsel. . .." (377 U.S.

201, 206, i2 Le 84. 2d 246,

250) (Emphasis supplied)

This is the Massiah Rule on the basis of

which a new trial was ordered for Mayor

Stringer. Since Massiah this Honorable

Court has applied the Rule several times

and has never deviated one way or the

other from the intentional elicitation

requirement. See, for example, Brewer v.

Williams (430 U.S. 387, 399 ff. 51 L. Ed.

2d 424, 436 ff, 97S. Ct. 1232 [1977))

and United States v. Henry (__U.S. >

65 L. Ed. 24 115, 122 ff., 100 S. Ct.

(1980 ]) In holding that the District At-

torney, having no improper motive, vio-

lated Mayor Stringer's rights by hearing

Stringer's unelicited admission, the

lower Federal Courts clearly ruled con-

trary to the prior opinions of this Hon-

orable Court.

II.

ON HARMLESS ERROR

What error could be more harmless

than evidence proving a fact admitted by

the adverse party and material primarily

to a charge on which the party is acquit-

ted? The harmlessness of such evidence

is too obvious to merit discussion. In

order to get around this obvious point,

the District Court ignored some evidence

and minimized the effect of the rest, re-

jected the State Court implied finding

that the State's evidence was sufficient

to take both charges to the jury and

ruled contrary to the prior decisions of

this Honorable Court. E.g- Jackson ov.

Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d

560, 573, 99 S. Ct. 2781 (1979).

CONCLUSION

In conclusion the Petitioners again

respectfully submit that this case pre-

sents an important question of Federal

Constitutional Law which has not been but

ought to be decided by this Honorable

Court and conflicts with prior opinions.

For these reasons the Petitioners again

pray that this Honorable Court will issue

the writ of certiorari and review the de-

cision and opinion of the Honorable Court

of Appeals and on such review will re-

verse the decision of said Court.

Respectfully submitted,

CHARLES A. GRADDICK

ATTORNEY GENERAL

JOSEPH G. L. MARSTON,11II

ASSISTANT ATTORNEY GENERAL

CERTIFICATE OF SERVICE

I, Joseph G. L. Marston, III, an

Assistant Attorney General of Alabama, a

member of the Bar of the Supreme Court of

the United States and one of the Attor-

neys for Sheriff Snead and Forrest Dob-

bins, Petitioners, do hereby certify that

on this ___ day of ey. > a

did serve the requisite number of copies

of the foregoing on the Attorney for J.

L. Stringer, Respondent, by mailing same

to him, first class postage prepaid and

addressed as follows:

Honorable Charles A. Sullins

Attorney at Law

206 Randolph Avenue, S.E.

Huntsville, Alabama 35801

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

ADDRESS OF COUNSEL:

Office of the Attorney General

250 Administrative Building

64 N. Union Street

Montgomery, Alabama 36130