# Petitioners Reply Brief — Roy Snead, Jr., Sheriff of Calhoun County, Alabama v. J. L. Stringer, Etc > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2196%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply Brief - **Published:** January 1, 1981 - **Citation:** 454 U.S. 988 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2196%3A4. Public record. Not legal advice.