Petitioners Brief — Portuondo v. Agard

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No. 98-1170

—_<—

LEONARD PORTUONDO, Superintendent,

Fishkill Correctional Facility,

Petitioner,

—V_.—

RAY AGARD,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE PETITIONER

RICHARD A. BROWN

District Attorney, Queens County

ANDREW L. ZWERLING*

JOHN M. CASTELLANO

ELLEN C. ABBOT

Assistant District Attorneys

Queens County District Attorney’s Office

125-01 Queens Boulevard

Kew Gardens, New York 11415

(718) 286-5801

*Counsel of Record for the Petitioner

June 7, 1999

QUESTION PRESENTED

Whether the Second Circuit Court of Appeals erred in

extending this Court's narrowly construed decision in Griffin v.

California -- which prohibited comment or instruction implying

that the defendant’s exercise of his right to remain silent

constitutes proof of guilt —- to a prosecutor's comment that a

testifying defendant’s opportunity to hear and use the testimony

of other witnesses negatively affected his credibility?

QUESTION PRESENTED

OPINIONS BELOW

JURISDICTION

TABLE OF CONTENTS

THE PROSECUTOR’S COMMENT THAT

DEFENDANT HAD AND USED THE

UNIQUE OPPORTUNITY TO HEAR THE

OTHER WITNESSES AT _ TRIAL

PROMOTED THE RELIABILITY OF THE

TRUTH-SEEKING PROCESS AND DID NOT

IMPERMISSIBLY BURDEN ANY

CONSTITUTIONAL RIGHT OF

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er 2 @ Cee 42a ee. eS O.8 8 OC: 8 Oa ee & &

ewe Veer ews ee ee Ce Ae ee 8s eS Oe Be ow &

The Prosecutor’s Comments

Fundamental Societal Interest In

Opportunity to Hear Testimony,

Moreover, the Prosecutor

Provided a Factual Basis for Her

Comments That Defendant

_—-_ = I

TABLE OF AUTHORITIES

Cases

Agard v. Portuondo, \17 F.3d 696

8 err 12, 13, 33, 40

Andresen v. Maryland, 427 U.S. 463 (1976) .......... 25

Barnes v. United States, 412 U.S. 837 (1973) ......... 22

Baxter v. Palmigliano, 425 U.S. 308 (1976) ....... 2708

Blissett v. Lefevre, 924 F.2d 434 (2d Cir. 1991)........ 36

Bordenkircher v. Hayes, 434 U.S. 357 (1978) ......... 18

Brady v. United States, 397 U.S. 742 (1970) ....... 1904

Brecht v. Abrahamson, 507 U.S. 619 (1993) ....... 181.5

Brooks v. Tennessee, 406 U.S. 605 (1972)............ 28

Brown v. United States,

I I 5 is ok gaan 20, 24, 34, 40

California v. Green, 399 U.S. 149 (1970) ... 28, 29, 32, 33

Camietti v. United States, 242 U.S. 470 (1916) .... 2115

Carter v. Kentucky, 450 U.S. 288

OR ee Se eon ae 26 n. 7, 36, 38, 39

Chambers v. Mississippi, 410 U.S. 284 (1973) ........ 23

Commonwealth v. Jones, 45 Mass. App. 254,

GI Se PEO wc ccewaeececcncee 31n9

Corbitt v. New Jersey, 439 U.S. 212

DE sc itwveroddetetans ot news « 18, 19, 19n.4

County Court of Ulster County, New York v. Allen,

ee a

Coy v. Jowa, 487 U.S. 1012 (1988) ...... 32, 33, 35n.14

Crumpton v. United States, 138 U.S. 361 (1891) ....... 36

Darden v. Wainrighi, 477 U.S. 168 (1986) ..... 40, 41, 43

Davis v. Alaska, 415 U.S. 308 (1974) ............... 33

Davis v. State, 221 Ga. App. 131,

ee ln oes 31n.9

Delaware v. Van Arsdall, 475 U.S. 673 (1986) ........ 33

Donnelly v. DeChristoforo, 416 U.S. 637 (1974) .... 40, 44

Douglas v. Alabama, 380 U.S. 415 (1965) ........... 37

Dowdell v. United States, 31 S.Ct. $90 (1910) ......... 33

Doyle v. Ohio, 426 U.S. 610 (1976) ............. 30, 34

Dunlop v. United States, 165 U.S. 486 (1897) ....... 35-36

eE——EEe7wCmcCOrlchC Cee eee

Dyson v. United States, 418 A.2d 127 (D.C.1980)... 3109

Estelle v. Williams, 425 U.S. 501 (1976) ............. 22

Fitzpatrick v. United States, 178 U.S. 304 (1899) ...... 20

Fletcher v. Weir, 455 U.S. 603 (1982) ............ 20n.5

Francis v. Franklin 471 U.S. 1301 (1985) ............ 43

Geders v. United States, 425 U.S. 80 (1976) ........ 22-23

Goldsby v. United States, 16 S.Ct. 216 (1895) ......... 36

Greer v. Miller, 483 U.S. 756 (1987) ............... 43

Griffin v. California, 380 U.S. 609 (1965) .. 12, 13, 25, 40

Harris v. New York, 401 U.S. 222 (1971) ...... 20 n.5, 24

Holder v. United States, 150 U.S. 91 (1893) .......... 29

Illinois v. Allen, 397 U.S. 337 (1970) ........ 22, 35n.15

Jenkins v. Anderson, 447 U.S. 231 (1980) . 18, 19, 20, 20 n.5

Johnson v. United States, 157 U.S. 320 (1895) ........ 46

Lakeside v. Oregon, 98 S.Ct. 1091 (1978) ......... 28, 36

Lawn v. United States, 355 U.S. 339 (1958) .......... 41

Lee v. Illinois, 476 U.S. 530 (1986) ........... 00.0. 37

vii

Maryland v. Craig, 497 U.S. 836

Sap eee Seen nee 33, 35 n.14, 37

Mattox v. United States, 156 U.S. 237 (1895) ......... 37

McGautha v. California, 402 U.S. 183 (1971)... 18, 19, 20

McKaskle v. Wiggins, 465 U.S. 168 (1984) ........... 23

McMann vy. Richardson, 397 U.S. 759

EN i tis a eka e out oe Seen 6c 18, 19n4,37n.15

Michigan v. Harvey, 494 U.S. 344 (1990) ...... 20 n.5, 24

Michigan v. Tucker, 417 U.S. 433 (1974) ............ 40

Mitchell v. United States, US. _,

ee ee ra ok eccteeiuben 27 n8

Morris v. Slappy, 461 U.S. 1 (1983) ..............-. 36

Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964) .... 25

Nelson v. United States, 415 F.2d 483

a no 21

Nix v. Whiteside, 475 U.S. 157 (1986) ............... 24

North Carolina v. Pierce, 395 U.S. 711 (1969) ........ 19

Ohio v. Roberts, 448 U.S. 56 (1980) ................ 33

Old Chief v. United States, 117 S.Ct. 644 (1997) ... 20n5

viii

Oregon v. Haas, 420 U.S. 714 (1975) .-. 2... 20 n.5

Parker v. Randolph, 442 U.S. 62 (1979) ...... 43, 43 n.17

People v. Agard, 83 N.Y .2d 868,

613 N.Y.S.2d 129 (1994)............... ieee

People v. Agard, 199 A.D.2d 401, 606 N.Y.S.2d 239

ME <icetwebat des vibobet hone <a 10

People v. Buckey, 424 Mich. 1,

378 N.W. 2d 432 (1985) ............. 27, 34, 35

People v. Person, 400 Mass. 176,

PE EE b via 65 40 80000504 ew eee 31n9

Perry v. Leeke, 488 U.S. 272 (1989) ....... 20, 28, 29, 30

Reagan v. United States, 157 U.S. 301

Sn on cesecwtadee ae okeude 20, 21, 39, 45, 46

Reed v. State, 633 S.W.2d 664 (Tex.1982) ........ 31n9

Resnover v. Pearson, 965 F.2d 1453

hs cis ke dagudbGhas padenaht 35

Richardson v. Marsh, 481 U.S. 200 (1987) ........... 43

Rock v. Arkansas, 483 U.S. 44 (1987) ......... 29, 38, 39

Rushen v. Spain, 464 U.S. 114 (1983) ............... 23

Schmerber v. California, 384 U.S. 757 (1966) ........ 21

Shannon v. United States, 512 U.S. 573 (1994) ........ 4B

Shapiro v. Thompson, 394 U.S. 618 (1969) .......... 19

Sherrod v. United States, 478 A.2d 644

PCTS canbeksbbwebet au bedceeces 3109

Smith v Phillips, 455 U.S. 209 (1982) ............... 40

Snyder v. Massachusetts, 291 U.S. 97 (1934) ......... 23

South Dakota v. Neville, 459 U.S. 553 (1983) ...... 18, 34

Spencer v. State v. Texas, 385 U.S. 554 (1967) ..... 20 n.5

State v. Buggs, $81 N.W.2d 329 (1998)........... 219

State v. Cassidy, 236 Conn. 112,

672 A.2d 899 (1996) 2... 31n9

State v. Grilli, 369 N.E.2d 35 (Minn. 1985) ........ 319

State v. Hemingway, 148 Vt. 90,

$28 A.2d 746 (1986) .. 2.0... eee. 31.9

State v. Howard, 323 N.W.2d 872 (1982) ...... 29, 31n.9

State v. Hoxie, 101 N.M. 7,

677 P.2d 620 (1984) ................ 27, 31n9

State v. Johnson, 80 Wash. App. 337,

908 P.2d 900 (1996) .............0.2.., 31n9

State v. Jones, 580 A.2d 161 (Me. 1990) .......... 31n9

State v. Martin, 101 N.M. 595, 686 P.2d 937

SP Said nalctde eke cee aehenatleees 31n9

State v. Robinson, 157 N.J. 118,

DE Pda b ute hevan sca een 29, 31 n.9, 33

State v. Smith, 82 Wash. App. 327,

917 P.2d 1108 (1996) ............ 29, 31 n.9, 34

State v. Walker, 972 S.W.2d 623 (Mo.1998) ....... 31n9

Taylor v. Kentucky, 436 U.S. 478 (1978)............. 38

Tehan v. United States, 382 U.S. 406 (1966) .......... 20

Thiede v. Utah Territory, 159 U.S. 510 (1895) ........ 36

Town of Newton v. Rumery, 480 U.S. 386 (1987) ... 18n4

United States v. Arias-Santana, 964 F.2d 1262

i, ek SEE ove akbuh nee caeun sas bas 28

United States v. Bayer, 331 U.S. 532 (1947) .......... 36

United States v. Binetti, 547 F.2d 265

SE FONE SES SSD prope ae 29

United States v. Coleman, 7 F.3d 1500

US ocr gy ee lis 41-42

United States v. Cropp, 127 F.3d 354

EPP ree reer rrr 29

United States v. Dunigan, 507 U.S. 87 (1993) ...... 18, 24

United States v. Eyster, 948 F.2d 1196

a ae ee 29

United States v. Francis, 82 F.3d 77

IP wigs Crd divcd Gis cedan 27 n.8, 35

United States v. Gleason, 616 F.2d 2

RE TEs Set meg ee ON Pi 21

United States v. Goodwin, 457 U.S. 368 (1982) ........ 19

United States v. Havens, 100 S.Ct. at 1916 ........... 20

United States v. Hobbs, 31 F.3d 918

NS Gi Se in ag ee fe 29

United States v. Jackson, 60 F.3d 128

A RR ee RS 24, 28, 45

United States v. Jackson, 390 U.S. 570 (1968) ........ 26

United States v. Johnson, 578 F.2d 1352

ESTE opal Rea pepe Se 29

United States v. Leon, 468 U.S. 897

ES e's akc vu 5 wees a'ou octal 18 n.4, 20n5

United States v. Magana, 127 F.3d 1

NN helen Cupuke hwo its hud et ee i 25

xii

United States v. Matsushita, 794 F.2d 46

DE SEED 5 cw rie oka RA ows bh ale eee 36

United States v. Mezzanatto, 513 U.S. 196 (1995)... 18n4

United States v. Nobles, 422 U.S. 225 (1975) ......... 24

United States v. Robinson, 485 U.S. 25

Eo de bee oe eas 23, 24, 26, 27n.8, 42

United States v. Scheffer, 118 S.Ct. 1261 (1998) ....... 38

United States v. Smith, 44 F.3d 1259 :

RATE aS ST EE ES ee er 36

United States v. Sullivan, 919 F.2d 1403

MEE iS bethwl dct chad dia keiee ced 21

United States v. Tocco, 135 F.3d 116

De ME Cr iviicda Loch hlan caaeemecen 41

United States v. Warren, 973 F.2d 1304

SE 26 sok cabal cubes oa cee 31n.9

United States v. Young, 470 U.S. 1 (1985). ........... 41

Wainright v. Greenfield, 474 U.S. 284 (1986) ......... 24

Walder v. United States, 347 U.S. 62 (1954) .......... 34

White v. Illinois, 502 U.S. 346 (1992) ............... 37

Williams v. Florida, 399 U.S. 78 (1970) .......... 18, 34

xiii

Wilson v. United States, 149 U.S. 60, 66 (1893) .... 26n.7

Yee Hem v. United States, 268 U.S. 178 (1925) ........ 22

Statutes

i i a ages 2

New York Penal Law § 120.05 .................... 10

New York Penal Law § 130.50 ....... easkoeetuects 9

New York Penal Law § 265.02 ..................... 9

Other Authorities

Albert W. Alschuler, “A Peculiar Privilege In

Historical Perspective: The Right to

Remain Silent,” 94 Mich. L. Rev. 2625

Es Cause eheuedewaleu shi sine cess 25

5 James H. Chadbourn, Wigmore, Evidence in Trials

at Common Law, Section 1385 (1974) ..... 37 n. 16

6 James H. Chadbourn, Wigmore, Evidence in Trials

at Common Law, Section 1837, p.455 (1974) ... 28

6 James H. Chadbourn, Wigmore, Evidence in Trials

at Common Law, Section 1838, p.461 (1974) ... 28

xiv

1 Comm. On Criminal Jury Instructions of the Office

of Court Administration, Criminal Jury

Instructions New York, Section 4.22

ig 8 EE ATER, AUP Ee: 36

3 Joseph G. Cook, Constitutional Rights of the

Accused, Section 21.3, pp. 21-11-21-16

PE, ED wid cdisvavancdes Foe baleen 21-22

1 Edward J. Devitt et. al, Federal Jury Practice and

Instructions, Section 16.10, pp. 591-592

re ees eee rnin Avy om ae 22

Richard D. Friedman, Confrontation: The Search For

Basic Principles, 86 Geo. L.J. 1011, 1022-102

SINE 65s So ds bse o es en 32 n.10

Howard W. Gutman, Academic Determinism:

The Division of the Bill of Rights, 54 S.Cal.

SF BT |) ee 32 n.13

Frank R. Hermann and Brownlow M. Speer, Facing

the Accuser: Ancient and Medieval Precursors

of the Confrontation Clause, 34 Va. Jnl. Int’l.

L. 481, 518-522, 540-541

A eee poo 32 n. 10, 32 n.11

Roderick R. Ingram, "A Clash of Fundamental Rights:

Conflicts Between the Fifth and Sixth Amendments

in Criminal Trials," 5 Wm. & Mary Bill of Rts.

i Se ae ED ang kod civoveweaber 25 n.6

Randolph N. Jonakait, The Origins of the Confrontation

Clause: An Alternative History, 27 Rutgers L.J.

ee Pein Pewee eye nm 32 n.12

John H. Langbein, “The Historical Origins of the

Privilege Against Self-Incrimination at

Common Law, 92 Mich. L. Rev. 1047

ED SE 6-5 0 ¥ Uae bdda Vestas asa 25 0.6

8 John T. McNaughton, Wigmore Evidence

in Trials and Common Law, Sections 2251,

2272 (1961 & Supp. 1995) ........... 25 n.6, 26

Modern Federal Jury Instructions 1991,

FIC 30-31 (Federal Judicial Center,

Matthew Bender) ..............-...-0-- 21, 22

Carolyn M. Nichols, The Interpretation of the

Confrontation Clause: Desire to Promote

Perceived Societal Benefits and Denial of

the Resulting Difficulties Produces Dichotomy

in the Law, 26 N.M. L. Rev. 393

GE « 6.550: 6s caddeb ns cowevaaus 37 n.16

Office of Legal Policy U.S. Department of Justice,

Report to the Attorney General on Adverse

Inferences from Silence: Truth In Criminal

Justice Report No. 8 (1989), 22 Mich. J.L.

Sa. ee, PUNE i nos cxhuesdpeedus 271.8

Daniel Pollitt, The Right of Confrontation: Its

History. and Modern Dress, 8 J. of Public Law

ds SONNE 6-0 + bak be vwnsc beasts 32 n.10

xvi 1

1 Leonard B. Sand et. al, Modern Federal Jury OPINIONS BELOW

Instructions 1991, Section 6.02 (1991)......... 22

The opinion of the Coyrt of Appeals for the Second

1 John William Strong, McCormick On Evidence Circuit is reported at 117 F.3d 696 (Oakes, J; Winters, J.,

Section 50, p. 188 (4* Ed. 1992) .......... 28, 29 concurring; Van Graafeiland, J., dissenting). The order of the

Court of Appeals for the Second Circuit denying rehearing or

1 Charles E. Torcia, Wharton's Criminal Evidence rehearing in banc is reported at 159 F.3d 98 (Oakes, J.; Van

Sections 89-150, (13th Ed. 1972)............. 22 Graafeiland, J., dissenting).

Peter Westen, Order of Proof: An Accused's Right The memorandum decision of the United States District

to Control the Timing and Sequence of Evidence Court for the Southern District of New York (Raggi, J.) was

in His Defense, 66 Calif. L. Rev. 935, 969 delivered orally by the court and transcribed in minutes dated

GU GCGA Cc Cua ie peeks tne ckeececcecs 29 March 15, 1996. The unreported opinion, as transcribed, is

reprinted in the appendix to the Petition for a Writ of Certiorari

at pp. la-9a, and the order and judgment of the court are

reprinted at pp. 10a-1 la.

The decision of the New York State Court of Appeals

denying the defendant's application for leave to appeal to that

court from the decision of the Appellate Division, Second

Department is reported at 83 N.Y.2d 868, 613 N.Y.S.2d 129

(1994). The decision of the Appellate Division, Second

Department, modifying the judgment of conviction and, as

modified, unanimously affirming the judgment is reported at 199

A.D.2d 401, 606 N.Y.S.2d 239 (2d Dept. 1993).

JURISDICTION

On July 3, 1997, the Second Circuit reversed a decision

of the Eastern District denying a petition for a writ of habeas

corpus and remanding the case to the district court, with

directions to grant the petition. On October 23, 1998, the Court

of Appeals for the Second Circuit denied a petition for rehearing

and petition for rehearing in banc. The petition for certiorari

ae ee ia”

was timely filed on January 20, 1999, and this Court granted the

petition on March 22, 1999. The jurisdiction of this Court rests

on 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment V - Grand Jury Indictment

for Capital Crimes; Double Jeopardy;

Self-Incrimination; Due Process of Law;

Just Compensation for Property

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the land or

naval forces, or in the Militia, when in actual service in time of

War or public danger; nor shall any person be subject for the

same offence to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for public

Amendment VI - Jury Trial for Crimes

and Procedural Rights

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been committed,

which district shall have been previously ascertained by law, and

to be informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense.

STATEMENT OF THE CASE

The Trial

On the evening of April 27, 1990, Nessa Winder and her

friend, Breda Keegan, twenty-three-year old women from

Ireland, went to a nightclub in Manhattan. There, they first met

the thirty-five-year old defendant, whom they identified in court

(Record: 38,' 235). The evening culminated in a consensual

sexual encounter between Ms. Winder and the defendant that

encounter, Ms. Winder rejected the defendant's demands for

anal intercourse; also, the defendant showed her a gun and

holster he kept in his apartment (Record: 38, 40-43, 48-50, 168-

171, 235, 266).

The following week, at the defendant's urging, the two

women met the defendant at a nightclub, where he was with his

friend, Albert Kiah (Record: 65-69, 180-181, 241-244, 268).

The four, accompanied by defendant’s roommate, ultimately

found themselves back at the defendant’s apartment, where an

intoxicated Winder fell asleep on the defendant’s bed. When

Keegan tried to leave with Winder, the defendant became

verbally abusive, and threatened her with a gun into leaving the

apartment with Kiah but without Winder (Record: 244-247,

249-252, 272-274).

1. Numbers preceded by “Record” refer to pages of the trial transcript. Those

preceded by “JA” refer to the Joint Appendix filed with this Court.

2. The presence of the defendant was also duly noted by the court clerk, who

repeatedly announced, in the presence of the jury, the presence of all the parties

(Record: 157, 292). The prosecutor also pointed and referred to the defendant

during her opening statement (Record: 7, 20).

When Winder woke the next morning, she found herself

wearing nothing but a vest and lying next to the defendant, who

after leaving the nightclub the night before (Record: 65-66, 68,

73, 75, 182-187, 220).

When the defendant awoke and she refused his demands

for sex (Record: 75, 77), a violent encounter ensued. Over a

period of time, the defendant battered her around the face and

body, threatened to kill his physically smaller victim with his

gun, and then repeatedly anally and orally sodomized her, and

raped her (Record: 75-81, 86-99, 106, 223-224). The terrorized

Winder did not move during the anal sodomy so that the act

would be less painful (Record: 94-95, 223-224).

After threatening to kill her if she contacted the police,

the defendant let Winder leave (Record: 99). She immediately

contacted Keegan, who picked up the hysterical and visibly

beaten Winder and drove her directly to the police precinct, and

thereafter to the hospital where Winder was treated (Record:

101-102, 254-258).

The existence of Ms. Winder’s facial and body injuries

was substantiated by the testimony of Detective Philip Giardina

(Record: 325-326), as well as by medical records and expert

testimony (Record: 413, 421-423, 427). Photographs of Ms.

Winder taken the day after the attack, as well as three weeks

later, were introduced into evidence and demonstrated the

extent of her injuries; her eye showed hemorrhages for four to

five weeks afterwards (Record: 87-88, 106-107). Additionally,

while no seminal fluid was found in the oral and anal samples

taken from Ms. Winder, testing revealed the presence of

spermatozoa in the samples of vaginal fluid (Record: 441-444,

452-457, 474-477). While there was no evidence of trauma in

Ms. Winder’s vagina or anus, it was established through expert

testimony that the absence of trauma did not mean that a rape

had not occurred, or connote the absence of force or pain during

the act (Record: 411-417, 420, 422-425, 427, 428, 431-433).

These conclusions were confirmed by an expert called by the

defense, who also testified that the injuries to Ms. Winder’s eye

were fresh (Record: 602-604, 620-621, 634-635, 640, 648).

The following day, defendant left a telephone message

for Winder on her answering machine and apologized for being

a "golden asshole” and for the "entire situation." He wished that

Winder would "live safefully [sic] and peacefully” (Record: 108-

109, 158-160, 256-259, 264-265).

As a result of a search warrant executed at defendant's

home, Detective Giardina recovered an operable .45 caliber

automatic handgun, a holster, and two magazines containing

shells. Ms. Winder identified the gun as appearing to be the gun

used by the defendant (Record: 160). Defendant was arrested,

and initially denied that he had a gun. He then stated that he had

a toy gun, and then finally stated that he had a gun but that he

was holding it for a friend (Record: 296, 306, 329-332, 341-

342). The defendant also acknowledged that he had been

involved in a fight with Winder and that, during that fight, she

scratched him and he "mushed" her face. He admitted that they

had had sex, but claimed it was consensual (Record: 329-332,

341-342).

The defendant, who sat through the testimony of all of

the prosecution witnesses, testified on his own behalf, and

essentially claimed that all sexual acts between he and Ms.

Winder were consensual (Record: 650-652, 658, 668-672, 676-

677, 705, 709-712, 719-726). He admitted calling Winder the

tes ee ee ca" “a

next day to apologize, but claimed that he was only apologizing

for “mush[ing]" her face. According to the defendant, who

claimed to be a trained martial artist, the complainant became

“hyper” and violent that morning over concern about her

boyfriend who was scheduled to visit from Ireland, and

scratched him on the lip; he struck her during an attempt to calm

her down. He admitted that he did not seek medical treatment

for his scratch and attributed the absence of any scar to the fact

that he was cut inside of his mouth (Record: 669-672, 694, 711-

718, 721, 725-726). He also admitted possessing a weapon, but

claimed that it was Ms. Winder who, during their first

encounter, removed it from his closet and strapped it on when

he momentarily left his bedroom to go to the bathroom (Record:

653, 676). He also denied threatening Keegan, a claim echoed

by defense witness Albert Kiah (Record: 512-522, 524, 531-

535). During cross-examination, the prosecutor attempted to

establish that Kiah had tailored his testimony based upon pre-

trial contact with the defendant (Record: 536-544).

In part, the prosecutor cross-examined the defendant

concerning his prior felony conviction and various prior bad

acts, all of which had been the subject of a pre-trial nearing

(Record: 677-687, 691-694), and the fact that he was a trained

martial artist who could easily have fended off Ms. Winder

(Record: 694, 712-717, 721-722). Notably, during cross-

examination the defendant recanted the statements he had made

to Detective Giardina concerning his gun, and claimed that he

never denied having a gun or stating that the gun was a toy. He

also denied providing certain pedigree information to the

detective (Record: 707, 709-710). Defendant revealed for the

first time on cross-examination that Ms. Winder had slapped him

during their first encounter the week before the crime; he

testified that he simply forgot to mention that fact previously

(Record: 719-720, 726).

Defendant’s Accusations of Tailoring

In his opening statement, even over a sustained

were lying, and that they had blended the truth in with

falsehoods in order to make their lies more effective (Record:

29-33). During the trial, he cross-examined both the

complainant and Ms. Keegan about whether they had spoken

about the case to one another (Record: 202-203, 276-277, 279-

282), and moved to strike Ms. Winder’s testimony and preclude

Ms. Keegan’s based upon apparent contact between them

during a break in Ms. Winder’s testimony (Record: 204-212

229-230). He opposed reopening an evidentiary hearing on the

ground that the prosecutor was “now in a position to tailor

whatever subsequent testimony comes to meet the requirements

that your Honor has determined. . .” (Record: 130-131). He

even requested that a serologist/witness be excused from the

courtroom during legal argument concerning the defendant’s

weapon (Record: 470).

In his summation, he repeatedly referred to the

complainant and Ms. Keegan as liars (JA: 6, 8, 10, 18, 19),

characterized their testimony as “lies” (JA 9, 24, 28) and as a

“script” and as “scripted” (JA: 17), and explicitly argued that

Ms. Winder and Ms. Keegan had “talk[ed] it over” before

deciding to go to the police and crying rape (JA: 15). He

commented that Ms. Winder did not want to “own up” to the

fact that she wanted to spend the night with the defendant

“because it did not fit her story” (JA: 16). He also asked the

jury to compare the victim's testimony with defendant's, and to

"consider the reasonableness of the two different stories."

Finally, he argued that defendant's description of the events on

the day of the crime, was a "more reasonable and natural

extension of the relationship that started the weekend before,"

and was "consistent" (JA: 12, 14, 18, 21).

The Prosecutor’s Response

The prosecutor devoted much of her lengthy sunimation

to the nature and strength of the proof of guilt (JA: 29, 30, 34-

36), the facts supportive of the credibility of Ms. Winder and

Ms. Keegan (JA: 32-33, 36-37, 39-44), und the defendant’s

motive (JA: 33-34). She also made a multi-pronged attack on

the defendant’s credibility relying in part on his interest in the

outcome of the case, his felony conviction, his prior bad acts,

and his recantation of statements made to Detective Giardina

(JA: 31, 44-46, 47-48).

The prosecutor also pointed out that defendant’s

testimony essentially corroborated that of the prosecution

witnesses but for his denial of the crimes, and that “[e]verything

else fits perfectly” (JA: 46-47). In part she made this argument

based upon the defendant’s demeanor on the witness stand,

asking the jurors to consider the “smooth slick character you

saw here, the one who had an answer for everything” (JA: 45),

and then asking them if the manner in which the defendant

testified concerning how he fought off Ms. Winder “sound[ed]

rehearsed” (JA: 48). In support of this tailoring argument, she

referred to how defendant’s explanation that Ms. Winder

attacked him due to concern about her boyfriend was proffered

because it “fits the whole scenario here” (JA: 36-39); and, to

how “all of a sudden” on cross-examination the defendant

recalled that Ms. Winder had slapped him during their first

encounter (JA: 48).

Towards the end of her summation, she then remarked:

You know, ladies and gentlemen, unlike all the

other witnesses in this case the defendant has a

benefit and the benefit that he has, unlike all the

other witnesses, is he gets to sit here and listen

to the testimony of all the other witnesses before

he testifies .... That gives you a big advantage

doesn’t it. You get to sit here and think what

am I going to say and how am I going to say it?

How am I going to fit it into the evidence? . . .

He’s a smart man. I never said he was stupid.

He’s not accused of being stupid and he wasn’t

stupid (JA: 49).

The trial court rejected the defense protest that these last

comments constituted wrongful comment on defendant’s

constitutional right to be present at trial (JA: 54), stating that

the “fact that the defendant was present and heard all the

testimony is something that may fairly be commented on. That

has nothing to do with his right to remain silent. That he was

the last witness in the case as [sic] a matter of fact” (JA: 54).

The Verdict and Sentence

After deliberating for over three days, the jury returned

a verdict convicting defendant of one count of Sodomy in the

First Degree (New York Penal Law Section 130.50[1])(anal

sodomy), two counts of Criminal Possession of a Weapon in the

Third Degree (New York Penal Law Sections 265.02[1], [4]),

and one count of Assault in the Second Degree (New York

Penal Law § 120.05) (Record: 1061-1064). It acquitted the

defendant of the rape and oral sodomy charges.’

The defendant was sentenced as a second felony

offender to concurrent indeterminate terms of imprisonment of

ten to twenty years on the sodomy count, and three and one-half

to seven years on each of the weapon counts.

State Court Proceedings on Appeal

On December 20, 1993, the Appellate Division modified

the judgment of conviction by reversing and dismissing one

conviction of third-degree weapon possession, and, as modified,

unanimously affirmed the judgment. People v. Agard, 199

A._D.2d 401, 606 N.Y.S.2d 239 (2d Dept. 1993). In so ruling,

the Appellate Division characterized the proof of guilt as

“overwhelming,” and, in conclusory form, found the contention

that the defendant’s right to a fair trial had been abridged due to

the prosecutor's summation comment regarding defendant's

to be without merit.

On April 14, 1994, defendant's application for leave to

appeal to the New York Court of Appeals -- in which he raised

the same claim -- was denied. People v. Agard, 83 N.Y.2d 868,

613 N.Y.S.2d 129 (1994).

3. Defendant was originally charged in a 36-count indictment with various sex

crimes and weapons charges. Eleven were dismissed by the prosecutor and six

were dismissed by the trial court before the case was submitted to the jury. The

defendant was convicted of three of the remaining nineteen counts. The tnal court

subsequently dismissed the assault charge on the ground that the jury had acquitted

defendant of the underlying assault, which was rape (Record: 1066, 1073).

Federal Court Proceedings

In his June, 1995 petition for a writ of habeas corpus,

the defendant argued in part that the prosecutor improperly

infringed upon his right to be present at trial and to confront his

accusers by noting in summation that he had had the opportunity

to hear all of the testimony before he testified in his own behalf.

By a decision dated March 15, 1996, the District Court

denied the petition (Raggi, U.S.D.J.). The court recognized that

it could not “hope on a cold record” to resolve the credibility

issue that was before the jury, and that such resolution was not

its “task in any event.” Then, after noting that the mixed verdict

reflected careful deliberation by the jury, the District Court

rejected defendant's claim that the prosecutor's summation

infinged on defendant's right to be present and confront his

accusers under the Sixth and Fourteenth Amendments. While

the remarks came “dangerously close to commenting on the

exercise of a right,” the court concluded that based upon the

context in which they were made and the summations of both

counsel, it had no doubt that the defendant had failed to

demonstrate that he was actually prejudiced by the comments or

that the jury was swayed by them.

The United States Court of Appeals for the Second

Circuit reversed and remanded the case to the District Court,

directing that court to grant the writ unless the state afforded

defendant a new trial within sixty days from the date of the

mandate. A majority of the panel concluded, over a vigorous

dissent, that the prosecutor's summation remark, that insinuated

to the jury for the first time on summation that a defendant's

presence in the courtroom gave him a unique opportunity to

tailor his testimony to match the evidence, violated a criminal

defendant's constitutional rights to confrontation, his right to

testify on his own behalf, and his right to receive due process

and a fair trial. See Agard v. Portuondo, 117 F.3d 696, 709 (2d

Cir. 1997).

In so ruling, the Second Circuit relied on this Court’s

decision in Griffin v. California, 380 U.S. 609 (1965), in which

this Court held that it is unconstitutional for a prosecutor to

suggest to jurors that guilt can be implied from a defendant’s

decision to exercise his Fifth Amendment right not to testify

because such a practice effectively penalizes the defendant for

exercising his Fifth Amendment rights. The Second Circuit

reasoned that a prosecutor’s summation remarks noting the

defendant’s unique opportunity to be present throughout trial

invites the jury to consider the defendant’s exercise of his right

to confrontation as evidence of guilt, and therefore penalizes

him for exercising that right. According to the court, such

comments imply that a truthful defendant would have stayed out

of the courtroom before testifying or would have testified before

other evidence was presented, thereby forcing defendants either

to forgo the right to be present, forgo their right to testify last,

or risk the jury’s suspicion. 117 F.3d at 709.

In upholding what it characterized as a Fifth and Sixth

Amendment right to the “opportunity of a defendant to fabricate

or conform testimony without comment” (117 F.2d at 710

n.11), the Second Circuit found that a prosecutor wishing to

impeach a defendant’s credibility had other avenues available,

thus rendering the need to impeach based upon the opportunity

to fabricate inadequate to overcome a defendant’s confrontation

rights. 117 F.3d at 711. The court also found it improper to

raise the “specter of fabrication” for the first time in summation

because such a tactic deprives a defendant and counsel of the

opportunity to rehabilitate the defendant s credibility. 117 F.3d

at 708 n.6.

In finding a deprivation of the defendant’s- Fifth

Amendment right to testify, the Second Circuit again cited

Griffin v. California, in holding that the remarks made by the

prosecutor had a fatal chilling effect upon that right. In finding

a due process violation, the Second Circuit found unredeeming

the brevity and isolated nature of the prosecutor’s comment. It

concluded that a comment that directly disparaged the

defendant’s exercise of constitutional rights was severe in

magnitude, and, in the absence of curative instructions by the

trial court and in light of the closeness of the issue of culpability,

therefore worthy of reversal. 117 F.3d at 712.

Upon denying the petition for rehearing (again with a

vigorous dissent), the majority narrowed the rationale of its

earlier ruling, and retreated from any language in the prior

decision that suggested that it was constitutional error for a

prosecutor to elicit facts tending to show that a defendant

tailored his testimony, or to comment on that factual showing.

It stated that it was proper to make a factual argument based

upon a defendant’s testimony -- with its principal focus based

upon a comparison of and fit between the defendant’s testimony

and that of other witnesses -- but that a generic argument that

defendant’s credibility is less than that of prosecution witnesses

solely because he alone attended the entire trial was proscribed

comment on the exercise of the right to be present. The court

concluded that because the prosecutor in this case ran afoul of

this prohibition it was adhering to its prior reversal of the district

court decision.

SUMMARY OF ARGUMENT

In Griffin v. California, 380 U.S. 609 (1965), this Court

ruled that a prosecutor's comment that a defendant’s failure to

testify should serve as proof of guilt violated the self-

incrimination clause of the Fifth Amendment because it unduly

extended that holding, which this Court has stated should be

narrowly construed, and ruled that a prosecutor’s comments

that a defendant tailored his testimony based upon his

opportunity as an accused to hear the testimony of other

witnesses improperly compromises his Sixth Amendment

confrontation right, his Fifth Amendment right to testify, and his

due process rights because it forces him to either forgo those

rights or have their exercise burdened by such comment. This

was error.

This Court has recognized on many occasions that the

in the criminal process that has the effect of discouraging the

exercise of constitutional rights. Rather, vital to determining the

propriety of such an election is an inquiry into the degree to

which the constitutional right is impaired and the necessity of

the government practice to the maintenance of fairness and

reliability in the adversarial process.

Unlike the condemned comments in Griffin, comments

alerting a jury that a defendant was advantaged as a witness by

virtue of his presence in the courtroom during the testimony of

other witnesses, and that he perverted that advantage into

tailored testimony, are designed to foster the fundamental goal

of truth-seeking in the adversarial process. Although a

defendant is immune from the witness sequestration rule, he is

still subject to the ills created by exposure to other testimony.

And once he assumes the witness stand, like other witnesses his

credibility may be impeached based upon that fact, particularly

when his testimony is tailored. The valued goal of the

ascertainment of the truth would be undermined if a defendant

was permitted to present tailored testimony reliant on the

prosecutor’s disability to challenge his testimony.

Additionally, as opposed to the comments in Griffin,

such comments do not excessively burden a constitutional right

or convert the exercise of a right into proof of guilt. Unlike

comments that assume guilt from the failure to testify, the

comments at issue here would not lead a juror to conclude that

a defendant’s exercise of the right to be present at his trial or to

testify on the defendant’s own behalf was evidence of his guilt.

And, while a defendant cannot explain his decision not to testify

without giving up the right to remain silent, the defendant here

could have sought to counter the inference raised by the

prosecutor, but chose not to do so. Rather than forcing a

defendant to forgo his confrontation right, such comments

merely deprive a defendant of the right to be insulated from

suspicion of concocting a defense consistent with the available

facts. Also, such comments no more “chill” the exercise of the

right to testify than myriad other permissible forms of

impeachment, rather than forcing a defendant to forgo the right

to testify, they merely force him to engage in tactical

Equally erroneous was the Second Circuit's finding of a

due process violation. The majority assumed a Griffin error,

but Griffin involved a Fifth Amendment, rather than a due

process, violation. In any event, the prosecutor’s comments

were proper and otherwise invited by defense counsel.

Certainly, considering their brevity, the proof of guilt (described

as “overwhelming” by the State appellate court), and the trial

court’s instructions, the comments did not infect the trial with

unfairness.

— a ee

Finally, no specific factual references were necessary to

permit the comment on defendant’s opportunity to hear and

make use of the other witnesses’ testimony. Like other

permissible forms of impeachment, the weight to be given

defendant’s opportunity and use of that opportunity in assessing

his credibility rests with the jury. Moreover, the prosecutor did

explain with specific references to testimony and to defendant's

demeanor on the witness stand the basis for her argument that

the defendant tailored his testimony.

ARGUMENT

THE PROSECUTOR’S COMMENT THAT DEFENDANT

HAD AND USED THE UNIQUE OPPORTUNITY TO

HEAR THE OTHER WITNESSES AT TRIAL

PROMOTED THE RELIABILITY OF THE TRUTH-

SEEKING PROCESS AND DID NOT IMPERMISSIBLY

BURDEN ANY CONSTITUTIONAL RIGHT OF

DEFENDANT.

This Court has repeatedly held that it is permissible to

burden the exercise of constitutional rights when the benefit to

be achieved is of sufficient magnitude and the impairment of the

right is not appreciable. In Griffin v. California, the Court

struck the balance to preclude comment that transforms the

exercise of the right to remain silent into substantive proof of

guilt. The Second Circuit’s interpretation of Griffin to preclude

any comment on the exercise of a constitutional right failed to

consider this balancing test. Application of this two-prong

inquiry to the prosecutor’s comments here that defendant had

and used to his benefit his unique opportunity to hear the other

witnesses reveals that the comments were proper. They

advanced the paramount good of the criminal justice system --

the ascertainment of the truth — and did not impermissibly

burden his right to confrontation, his right to testify, or his right

to due process.

L Government Practices That Promote the Integrity

of the Truth-Seeking Process Are Authorized Even

When They May Discourage The Exercise Of

Constitutional Rights.

This Court has recognized on many occasions that the

Constitution does not preclude every government-imposed

choice on a defendant in the criminal justice system that has the

tendency of discouraging the exercise of constitutional nghts.

Jenkins v. Anderson, 447 U.S. 231, 236 (1980), Corbitt v. New

Jersey, 439 U.S. 212, 218 (1978); Chaffin v. Stynchombe, 412

U.S. 17, 30 (1973). Difficult litigation choices, even those

implicating rights of constitutional dimensions, do not

necessarily signify constitutional transgressions. United States

v. Dunigan, 507 U.S. 87, 96 (1993), Bordenkircher v. Hayes,

434 US. 357, 365 (1978). Rather, they are an inevitable,

Bordenkircher v. Hayes, 434 U.S. at 365. Indeed, the criminal

process abounds with circumstances in which difficult, and at

times even unpleasant, South Dakota v. Neville, 459 U.S. 916,

922-923 (1983), decisions must be made. McGautha v.

California, 402 U.S. 183, 213 (1971); McMann v. Richardson,

397 US. 759, 769 (1970).

For example, in Bordenkircher v. Hayes, this Court held

that due process is not violated when a state prosecutor carries

out a threat made during plea negotiations to have the accused

reindicted on more serious charges if he does not plead guilty,

even though this practice undeniably has a discouraging effect

on the defendant’s assertion of his constitutionally guaranteed

trial rights. 434 U.S. at 364-65. Similarly, in Williams v.

Florida, 399 U.S. 78 (1970), this Court upheld a statute

requiring pre-trial disclosure of an alibi defense even though it

forced the defendant to choose between his right to remain

silent and the right to present a defense. The sometimes

“severe” pressure associated with such a choice did not rise to

the level of a compulsion to speak.* /d at 84.

4. See, eg., United States v. Mezzanatio, 513 U.S. 196 (1995\(plea waiver

agreements upheld), Town of Newton v. Rumery, 480 U.S. 386 (1987\release-

dismissal agreements upheld), United States v. Leon, 48 US. 897

(1984) permissible to impose choice between night to testify and full expression of

19 ry

In assessing the constitutionality of a government-

imposed choice, the crucial inquiry involves a balancing of the

legitimacy and necessity of the challenged action against an

assessment of whether the policies undergirding the affected

constitutional rights are appreciably impaired. Jenkins v.

Anderson, 447 U.S. at 236; Chaffin v. Stynchombe, 412 U.S. at

32; McGautha v. California, 402 US. at 213. When a

Shapiro v. Thompson, 394 U.S.

618 (1969); United States v. Jackson, 390 US. 570

(1968)(guilty pleas needlessly encouraged). Similarly, when

governmental conduct is vindictive or has no other objective

than to chill the exercise of constitutional rights or coerce their

relinquishment, the practice will not be allowed to stand.

Corbitt v. New Jersey, 439 U.S. 212, 219 n.9 (1978); North

Carolina v. Pierce, 395 U.S. 711 (1969); see also United States

v. Goodwin, 457 U.S. 368 (1982).

Conversely, when the benefit of the practice is of

sufficient magnitude, then the burden on the constitutional right

will be tolerated. In the context of the rights of the accused in

the criminal justice system, the most frequently cited benefit

justifying the imposition of burdens is the societal interest in the

pursuit of truth and fairness in the adversarial process.

For example, while impeachment in its various forms

burdens a defendant's right to testify, the interest in enhancing

the reliability of the criminal process justifies the imposition of

paedaetnnadtinteten New Jersey, 439 U.S. 212 (1978 upholding

4 statute that unposed higher sentences on defendants who went to trial than on

those who entered guilty pleas), Brady v. United States, 397 U.S. 742, 752-753

(1970\(plea bargaining upheld even though a guilty plea waives constitutional

rights), McMann v. Richardson, 397 U.S. 759 (1970\(plea of guilty waived right

to contest voluntariness of confession ).

that burden. Jenkins v. Anderson, 447 U.S. at 238, citing

Brown v. United States, 356 U.S. 148 (1958). The risk of

cross-examination may dissuade the exercise of the right to

testify, but “it is not thought inconsistent with the enlightened

administration of criminal justice to require the defendant to

weigh such pros and cons in deciding whether to testify."

McGautha v. California, 402 U.S. at 215; see Jenkins v.

Anderson, 447 U.S. at 238. The fundamental goal of our legal

system and the fundamental purpose of a trial is the

determination of truth, United States v. Havens, 446 U.S. 620,

626 (1980); Tehan v. United States, 382 U.S. 406, 416 (1966),

and vital to this is the role of cross-examination of the accused.

Perry v. Leake, 488 U.S. 272, 282 n.7 (1989). So compelling

is this interest that for over a century this Court has remarked

that there is “no reason” why a defendant who testifies should

be treated any differently than other witnesses. Fitzpatrick v.

United States, 178 U.S. 304, 315 (1899); see Brown v. United

States, 356 U.S. 148, 159 (1958); Reagan v. United States, 157

U.S. 301, 305 (1895). “Assuming the position of a witness, he

[an accused] is entitled to all its rights and protections, and is

subject to all its criticisms and burdens." Reagan v. United

States, 157 U.S. at 305. Thus, in support of this valued societal

goal, various methods of impeachment, even those implicating

other constitutional rights, are authorized despite their creation

of disincentives to testify.°

5. A defendant may be impeached with evidence obtained in violation of his Suxth

Amendment rights, Michigan v. Harvey, 494 U.S. 344 (1990), Oregon v. Haas, 420

US. 714 (1975), evidence obtained in violation of his Fourth Amendment nights,

United States v. Leon, 468 U.S. 897 (1984), evidence obtained in violation of his

Miranda rights, Harris v. New York, 401 U.S. 222 (1971), evidence of prior bad

acts, Old Chief v. United States, US__, 117 S.Ct 644 (1997), Spencer v. State

v. Texas, 385 U.S. 554 (1967), proof of pre-arrest silence, Brecht v. Abrahamson,

507 U.S. 619 (1993), Jenkins v. Anderson, 447 U.S. 231, 239 (1980), post-arrest

silence in the absence of Miranda warnings, Fletcher v. Weir, 455 U.S. 603, 606-

607 (1982), inconsistent statements, Jenkins v. Anderson, 447 US. at 239, and,

purported chilling effect on the right to

testify or to mount a defense. For example, because it "is within

the province of the court to call the attention of the jury to any

hich legitimately affect his [a defendant's) testi

and his credibility," and because the interest of the defendant in

the outcome of the case “is of a character possessed by no other

of the case may be considered in assessing his credibility.

Reagan v. United States, 157 U.S. 301, 305 (1895); see United

States v. Sullivan, 919 F.2d 1403, 1419 (10th Cir. 1990); United

States v. Gleason, 616 F.2d 2, 15-16 (2d Cir.1980); Nelson v.

United States, 415 F.2d 483, 487 (Sth Cir. 1969); see also

Modern Federal Jury Instructions 1991, FJC 30-31 (Federal

Judicial Center; Matthew Bender).

Nor is the right to testify the only one that may be

burdened in the advancement of the truth-seeking function of

the trial. Practices that tend to burden the right to be present

are authorized when they are necessary to the ascertainment of

the truth or the fair and reliable administration of justice.

People v. Buckey, 424 Mich. 1, 378 N.W. 2d 432, 439 (1985).

For example, because of his status as an accused who is present

in the courtroom, a defendant may be forced "to write or speak

for identification, to appear in court, to stand, to assume a

stance, to walk, or to make a particular gesture." Schmerber v.

California, 384 U.S. 757, 764 (1966). See generally 3 Joseph

G. Cook, Constitutional Rights of the Accused, Section 21.3,

omissions in testimony, Caminetti v. United States, 242 U.S. 470 (1916).

pp. 21-11-21-16 (3% Ed.1996). Also, where justification is

shown, the shackling of a defendant will be upheld though it

compels an election between exercising the rights of

confrontation and presence subject to the prejudice resulting

from the jury’s observation of the restraint, or forfeiting those

rights altogether. Estelle v. Williams, 425 U.S. 501 (1976),

Illinois v. Allen, 397 U.S. 337 (1970).

And practices that tend to pressure a defendant into

relinquishing the right to remain silent have withstood attack as

forms of constitutional compulsion when they further the truth-

seeking function of the trial. For example, a jury may be

instructed that a presumption of guilty knowledge may be

inferred from a defendant’s unexplained possession of

contraband. See, e.g., 1 Leonard B. Sand et. al, Modern Federal

Jury Instructions, Section 6.02 (1991); 1 Edward J. Devitt et. al,

Federal Jury Practice and Instructions, Section 16.10, pp. 591-

592 (1992). While « presumption of this kind heightens the

incentive to testify and may have the practical effect of

compelling a defendant tw testify to rebut the presumption, such

presumptions have been upheld. Barnes v. United States, 412

U.S. 837 (1973); Yee Hem v. United States, 268 U.S. 178

(1925); see County Court of Ulster County, New York v. Allen,

442 U.S. 140 (1979)(upholding automobile/gun presumption);

see also 1 Charles E. Torcia, Wharton's Criminal Evidence,

Sections 89-150 (13th Ed. 1972)(detailing myriad constitutional

presumptions). e

Even apparent burdens on the right to counsel may be

imposed in order to further the ascertainment of the truth or the

fair administration of justice. For example, a defendant may be

cross-examined regarding whether he had been coached by

counsel during a break in his testimony despite the apparent

burden on the right to counsel. Geders v. United States, 425

U.S. 80, 89 (1976). Also, a defendant wishing to proceed pro

se may be forced to choose between exercising the right to

proceed pro se with the unsolicited participation of standby

counsel or not exercising the right at ail. McKaskle v. Wiggins,

465 U.S. 168 (1984).

In applying the balancing test, it is vital to distinguish

between an imposition on a constitutional right and a restriction

on the defendant's ability to use that right affirmatively to obtain

an advantage to which he is not constitutionally entitled.

The constitutional protections are designed to insulate

an accused from governmental abuses and overreaching, and not

to endow the accused with litigation advantages. The reason is

that in order to foster "society's interest in the administration of

justice," Rushen v. Spain, 464 U.S. 114, 118 (1983), and both

fairness and reliability in the ascertainment of guilt and

unocence, Chambers v. Mississippi, 410 U.S. 284, 302 (1973),

"it is important that both the defendant and the prosecutor have

the opportunity to meet fairly the evidence and the arguments of

one another." United States v. Robinson, 485 U.S. 25, 33

(1988). "“[JJustice, though due to the accused is due to the

accuser also." Snyder v. Massachusetts, 291 U.S. 97, 122

(1934).

While zealous to safeguard constitutional protections,

this Court has been equally vigilante in thwarting efforts by

defendants to avail themselves of tactical advantages lacking a

constitutional predicate through the guise of an assertion of a

constitutional right. For example, whereas it is improper to

draw an adverse inference from the assertion of the

"constitutional shield" of the Fifth Amendment, Mitchell v.

United States, U.S. __, 119 S.Ct. 1307, 1312 (1999), this

Court has restricted the a attempt to use that protection as a

"sword" insulated from prosecutorial response when a defendant

denies he had an opportunity to explain his actions. United

States v. Robinson, 485 U.S. 25, 33-34 (1988). Similarly, while

a defendant possesses the right to present a defense under the

Sixth Amendment, "the Sixth Amendment does not confer the

right to present testimony free from the legitimate demands of

Amendment as a justification for presenting what might have

been a half-truth." United States v. Nobles, 422 U.S. 225, 241

(1975). :

In the same vein, while a defendant is privileged to

testify in his own behalf, he has the obligation to speak

truthfully. Nix v. Whiteside, 475 U.S. 157, 173 (1986); Harris

v. New York, 401 U.S. 643, 645 (1971). Consequently, a

defendant is proscribed from exercising his Fourth (Walder v.

United States, 347 U.S. 62 [1954]), Fifth (United States v.

Dunigan, 507 U.S. 87 [1993]; Brown v. United States, 356 U.S.

148, 155-156 [1958]), and Sixth Amendment rights (Nix v.

Whiteside, 475 U.S. at 173; Michigan v. Harvey, 494 U.S. 344,

350-351 [1990]), as well as his Miranda rights (Wainright v.

Greenfield, 474 U.S. 284, 292 n.8 (1986); Harris v. New York,

401 U.S. 222 [1971]) as licenses to commit perjury free from

the risk of impeachment designed to detect the falsehoods. To

rule otherwise would be to transform these protections from

"humane safeguard[s]" into "positive invitation[s] to mutilate the

truth." Brown v. United States, 356 U.S. at 156. Thus, no

impairment of a constitutional right occurs when the

government practice merely restricts a defendant’s attempt to

skew the level playing field upon which the issue of culpability

is resolved.

This Court applied the balancing test described-above in

Griffin v. California, to prohibit a prosecutor or a court from

Suggesting to a jury that an inference of guilt may be drawn

from a defendant's assertion of his Fifth Amendment right to

remain silent. This type of comment "cuts down on the privilege

by making its assertion costly" and is a “remnant of the

‘inquisitorial system of criminal justice” that subjects

accused to "a penalty imposed for exercising a constitutional

privilege.” 380 U.S.at 614.

with such comments far outweigh any benefit. First, the policies

underlying the Fifth Amendment protection are severely

undermined by such comment. The “historic function of the

privilege has been to protect a ‘natural individual from

compulsory incrimination through his own testimony or personal

records.” Andersen v. Maryland, 427 U.S. 463, 470 (1976).

Compulsory incrimination offends our sense of fair play and

“our preference for an accusatorial rather than an inquisitorial

system of criminal justice.” Murphy v. Waterfront Comm‘n, 378

U.S. 52, 55 (1964) .

By asking the jury to infer guilt through a defendant's

silence, a prosecutor transforms a silent defendant into a "source

of evidence against himself." Albert W. Alschuler, “A Peculiar

Privilege In Historical Perspective: The Right to Remain Silent,”

94 Mich. L. Rev. 2625, 2627 (Aug.1996). This is because a

defendant’s failure to testify is "a fact inescapably impressed on

the jury's consciousness," Griffin at 621, 622, and the "layman's

natural first suggestion would probably be that the resort to

6. See generally 8 John T. McNaughton, Wigmore, Evidence in Trials at Common

Law, Section 225] (1961 & Supp.1995), Roderick R. Ingram, “A Clash of

Fundamental Rights: Conflicts Between the Fifth and Sixth Amendments in

Criminal Trials," 5 Wm. & Mary Bill of Rts. J. 299, 301 (Wint. 96), John H.

Langbein, "The Historical Origins of the Privilege Against Self-Incrimination at

Common Law," 92 Mich. L. Rev. 1047 (March1994).

privilege in each instance is a clear confession of crime." 8 John

T. McNaughton, Wigmore Evidence in Trials and Common

Law, Section 2272 (1961 & Supp. 1995); see Lakeside v.

Oregon, 435 U.S. 333, 340 n.10 (1978).

This burden is made weightier by the accused’s inability

to offset that adverse inference absent total relinquishment of

the right to remain silent. Unless the accused takes the stand,

his attorney is bereft of admissible evidence upon which to rely

in challenging the inference.

Second, such comments do not appreciably advance the

truth-seeking process. This Court has recognized that myriad

reasons exist unconnected with culpability for declining to

testify, and therefore the inference of guilt drawn from the

silence is infused with unreliability.’ Thus, in the absence of a

benefit to be derived from the inference, the burden is

"needlessly" or unnecessarily imposed, a factor requiring its

prohibition. See United States v. Jackson, 390 U.S. at 570.

Thus, in Griffin, the Court condemned a practice that led

to the complete nullification of a constitutional guarantee

without any offsetting benefit. The case does not stand for the

broad proposition attributed to it by the Second Circuit that any

comment on the exercise of a constitutional right is prohibited.

Rather, Griffin, which this Court has stated should be narrowly

construed, see United States v. Robinson, 485 U.S. at 31,

merely represents an application of the balancing test that must

7. These reasons include “[e}xcessive timidity” and “nervousness,”Wilson v.

United States, 149 U.S. 60, 66 (1893), as well as fear of impeachment by prior bad

acts and convictions or other harmful information not necessarily relevant to the

accusations being tried. Carter v. Kentucky, 450 U.S. 288, 300n.15 (1981).

be used in determining the propriety of any burden on the

exercise of a constitutional right.*

IL The Prosecutor’s Comments Properly Furthered The

a en

ruth.

Application of this Court’s balancing test compels the

conclusion that the comments in this case were proper.

Quite unlike in Griffin, the prosecutor’s comments in

interest in the ascertainment of the truth at trial. They alerted

the jury to a fact touching directly upon the reliability of the

evidence at trial, that being defendant’s immunity from the

witness-sequestration rule and its concomitant impact on his

credibility. See State v. Hoxie, 101 N.M. 7, 677 P.2d 620, 622

(1984); People v. Buckey, 424 Mich. 1, 378 N.W.2d 432

(1985).

____ Ithas been recognized since biblical times that the failure

to insulate a witness from other testimony at trial detrimentally

8 This Court has repeatedly refused to extend Griffin to disparate factual

scenarios. See, e.g., United States v. Robinson, 485 U.S. 25 (1988)court declined

to extend Griffin to bar prosecutor's summation comments that were invited by

arguments of defense counsel), Baxter v. Palmigliano, 425 U.S. 308 (1976 Court

declined to extend Griffin to prison disciplinary proceedings), see also United

States v. Francis, $2 F.3d 77, 79 (4* Cir. 1996)\court declined to extend Griffin to

prosecutor's reference in summation to the"uncontradicted evidence”). Indeed,

recently one member of this Court described Griffin as a “wrong turn” which is

“cause enough to resist its extension.” Mitchell v. United Sta‘es, US. __,119

S.Ct. 1307, 1319 (1999\Scalia, J. dissenting). The holding has been the source of

controversy. See Office of Legal Policy U.S. Department of Justice, Report to the

Attorney General on Adverse Inferences from Silence: Truth In Criminal Justice

Report No. 8 (1989), 22 Mich. J.L. Ref. 1005, 1095 (1989).

affects the witness’s reliability. United States v. Jackson, 60

F.3d 128, 133 (2d Cir.1995); United States v. Arias-Saniana,

964 F.2d 1262, 1266 (ist Cir. 1992); 6 James H. Chadbourn,

Wigmore, Evidence in Trials at Common Law, Section 1837,

p. 55 (1974). Hence, the practice was instituted of sequestering

witnesses. The reason for this practice is twofold: it “exercises

a restraint on witnesses ‘tailoring’ their testimony to that of

earlier witnesses, and it aids in detecting testimony that is less

than candid.” er a eee

opposing witness were permitted, the listening wi

thus ascertain the precise points of difference between their

testimonies, and could shape his own testimony to better

advantage for his cause.” 6 Janes H. Chadbourn, Wigmore,

Evidence in Trials at Common Law, Section 1838, p. 461

(1974). Also, even innocent bce po ent a

this rule, for it is i

tone dg tae subconsciously . 1 John William

Strong, McCormick On Evidence Section 50, p. 188 (4 Ed

1992). The importance of this rule to the integrity of the trial

process is so profound that statutory law allows a litigant to

demand sequestering as a matter of right, rather than leaving it

to the decision of the trial court. F.R-Cr.Pr. 615.

The accused is exempt from this otherwise strict rule in

order to gi ession to his right to confront the witnesses

against + agpantin Leeke, 488 U.S. 272, 282 (1989), and full

effect to his Fifth Amendment right to testify or remain silent.

In the latter context, a defendant is permitted to hear the case

against him in full in order to determine whether or not his

testimony will be necessary or even helpful to his case.

Lakeside v. Oregon, 435 U.S. 333, 339 n.9 (1978); Brooks v.

Tennessee, 406 U.S. 605, 610-611 (1972).

The defendant’s right to hear the testimony of other

possibilities of tailoring or innocent confabulation. Because this

fact goes to the heart of his reliability as a witness, the jury

should be allowed to consider it. Where a non-defendant

witness is exposed to the testimony of another, that fact may be

brought to the jury’s attention through cross-examinaticn,

United States v. Hobbs, 3\ F.3d 918, 921 (9* Cir.1994); United

States v. Eyster, 948 F.2d 1196, 1211 (11* Cir.1991), through

summation comments, Holder v. United States, 150 U.S. 91, 92

(1893); United States v. Johnson, 578 F.2d 1352, 1355 (10*

Cir. 1978), and even through court instruction. United States v.

Cropp, 127 F.3d 354, 363 (4* Cir.1997); United States v.

Magana, 127 F.3d 1, 6 (1" Cir. 1997); United States v. Binetti,

547 F.2d 265, 269 (S* Cir. 1977); 1 John William Strong,

McCormick On Evidence, Section 50, p.191 (4* ed. 1992).

There is no reason for excepting a defendant from these rules

and preventing the jury from considering whether or not the

defense,” Rock v. Arkansas, 483 U.S. 44, 52 (1987), has

tailored his testimony due to his presence or was influenced by

that fact. State v. Robinson, 157 N.J. 118, 384 A.2d 569

(1978); State v. Smith, 82 Wash.App. 327, 917 P.2d 1108

(1996); State v. Howard, 323 N.W.2d 872, 874 (1982); Peter

Westen, Order of Proof: An Accused's Right to Control the

Timing and Sequence of Evidence in His Defense, 66 Calif. L.

Rev. 935, 969 (1978).

Notably, this Court has ruled this way in determining the

defendant's rights with regard to a corollary to the sequestration

third parties who are aware of testimony already given. As

previously noted in Perry v. Leeke, 488 U.S. at 272, this Court

held that a defendant may be restricted from contact with his

own attorney during a brief (not overnight) recess in his

testimony. The reason: when the defendant “assumes the role

of a witness, the rules that generally apply to other witnesses —

rules that serve the truth-seeking function of the trial — are

generally applicable to him as well." 488 U.S. at 282-283. This

is despite the seeming burden on a defendant’s night to counsel.

There is no rational distinction between the practice sanctioned

in Perry and the one advocated by petitioner in this case.

Thus, rather than being “needless” or existing solely to

chill the exercise of a constitutional right, prosecutorial

comment on the defendant’s opportunity to hear and use other

testimony promotes the central goal of the criminal justice

system, the ascertainment of truth.

Il. The Prosecutor’s Comments Did Not Deprive

Defendant of Any Constitutionally Protected Right Nor

Impose An Undue Burden on the Exercise of Any Right.

The prosecutor’s comments in this case, unlike those in

defendant or render the assertion “costly.” Defendant was

afforded all the attributes of the right to confront the witnesses

against him, to testify in his own behalf, and to a fair trial under

the Due Process clause. The comment, in fact, helped advance

goals shared by these constitutional provisions. To the extent

that defendant faced the prospect that the jury would consider

his opportunity to fabricate, that likelihood did not encourage

him to surrender his confrontation rights or to refrain from

testifying, nor did it i to the jury that he simply

er demir tenes ee

A. The Confrontation Claim

The defendant was provided with the fullness of his

prosecutor’s comments. Moreover, at no time did the

prosecutor suggest that defendant was guilty simply because he

attended his own trial, and unlike in Griffin, defendant had

ample opportunity to offset the impact of the prosecutor’s

remarks. Consequently, the Second Circuit’s finding of a

; ion right violation was |

As a threshold matter, defendant was afforded all of the

protections that the Confrontation Clause guarantees. The right

of confrontation can be traced back to the practices of the

ancient Hebrews and Romans and into the sixteenth century

9. A number of courts have upheld the practice of referring during cross-

examination or summation to a defendant's opportunity to hear other testi

See United States v. Warren, 973 F 2d 1304, 1307 (6th Cir. 1992), Sante » Bees

581 N.W.2d 329 (1998), State v. Smith, 82 Wash. App. 327, 917 P.2d 1108 (1996),

Davis v. State, 221 Ga. App. 131, 470 S.E.2d $20, 522-523 (1996), State v. Grilli,

369 N.W 2d 35, 37 (Minn. 1985), State v. Martin, 101 N.M. $95, 686 P.2d 937

(1984), State v. Hoxie, 101 N.M. 7, 677 P.2d 620, 622 (1984), Reed v. State, 633

S.W.2d 664, 666 (Tex 1982), State v. Howard, 323 N.W_2d 872, 874 (1982), State

v. Robinson, 157 NJ. Super. 118, 384 A.2d 569 (1978), but see State v. Walker,

972 S.W.2d 623 (Mo.1998}, Commornwealth v. Jones, 45 Mass. App. 254, 697

N.E.2d 140 (1998), State v. Cassidy, 236 Conn. 112, 672 A.2d 899 (1996), State

v. Johnson, 80 Wash. App. 337, 908 P_2d 900 (1996), State v. Jones, 580 A. 2d 161

(Me. 1990), State v. Hemingway, 148 Vi. 90, 528 A2d 746 (1987), People v.

Person, 400 Mass. 176, 508 N_E. 88 (1987), Sherrod v. United States, 478 A2d

644, 654 (D.C.1984), Dyson v. United States, 418 A.24 127 (D.C. 1980).

See Coy v. lowa, 487 U.S. at 1015-106." An extended period

the practice was implemented of trying defendants solely on the

basis of ex parte affidavits or depositions obtained by

magistrates, which were merely referred to at the proceeding.

California v. Green, 399 U.S. 149, 156-157 (1970); see also

White v. Illinois, 502 U.S. at 359 (Thomas, J. concurring).

Even when the procedures evolved to the use of live witnesses,

the accused merely attended his own trial in order to observe the

witnesses being sworn so that he could challenge on a number

_ of grounds the competency of the witnesses to stand against

him. It did not include the right to hear the witnesses while they

testified."

This changed with the advent of the Confrontation

Clause. Because early American documents rarely mention the

confrontation right,'* and since it was the result of only five

minutes debate before its adoption by Congress,” scant

evidence exists to illumine the intention of the drafters of this

10. Richard D. Friedman, Confrontation: The Search For Basic Principles, 86

Geo. LJ. 1011, 1022-102 (Feb.1998), Frank R. Hermann, Facing the Accuser-

Ancient and Medieval Precursors of the Confrontation Clause, 34 Va J. Int’l L.

481, 482-486 (Spr.94}, Daniel Pollitt, The Right of Confrontation: Its History and

Modern Dress, 8 J. of Public Law 381, 384 (1959).

11. Frank Hermann and Brownlow M. Speer, Facing the Accuser: Ancient and

Medieval Precursors of the Confrontation Clause, 34 Va Jnl Int’ LL. 481, $18-522,

540-541 (Spr.1994)

12. Randolph N. Jonakait, The Origins of the Confrontation Clause: An Alternative

History, 27 Rutgers LJ. 77 (Falli995), citing Murl A Larkin, The Right of

Confrontation: What's Next?, 1 Tex. Tech. L. Rev. 67 (1969).

13. Howard W. Gutman, Academic Determinism: The Division of the Bill of

Rights, 54 S.Cal. L. Rev. 295, 332-43 (1981), cited im, Robert P. Mosteller,

Remaking Confrontation Clause and Hearsay Doctrine Under the Challenge of

Child Sexual Abuse Prosecutions, 1993 U. Ill. L. Rev. 691, 737 (1993).

constitutional safeguard. Hence, it “comes to us on faded

parchment." California v. Green, 399 U.S. at 174-175 (Harlan,

J. concurring). In an evolving process, however,,this Court has

delineated three essential components of the right of

confrontation: (1) having the competent witness testify under

oath in order to impress upon him the seriousness of his task and

to guard against falsehoods by the possibility of a sanction for

perjury, (2) cross-examination, which has been described as the

“main and essential purpose of confrontation,” Delaware v. Van

Arsdall, 475 U.S. 673, 678 (1986); Davis v. Alaska, 415 U.S.

308, 315-316 (1974); and, (3) observation of demeanor by the

accused and the trier of fact. Maryland v. Craig, 497 U.S. 836

(1990); Coy v. Jowa, 487 U.S. at 1017-1018; California v.

Green, 399 U.S. at 157-158; Dowdell v. United States, 221 U.S.

325, 330 (1910). The Confrontation Clause is generally

satisfied when these three components are extant. Ohio v.

po 448 U.S. 56, 69 (1980); Maryland v. Craig, 497 U.S.

Here, all of the demands of the Confrontation Clause

were satisfied. The witnesses all testified under oath; they were

subject to cross-examination; and, the jury, defendant and the

judge all fully observed their demeanor. Thus, the explicit

constitutional guarantee and its defined components were

wholly observed. State v. Robinson, 157 N.J. Super. 118, 384

A.2d 569 (1978).

Tha ponseeseer’s cotmmnte meedhy Gagslend Gxltentans

of what was characterized by the Second Circuit as the

“constitutional right to the opportunity to fabricate or conform

testimony without comment.” Agard, 117 F.3d at 710 n.11.

Yet there is no. such right.

Certainly such a right is not identified within the

contours of the Confrontation Clause as delineated by this

Court. Moreover, it is not reasonable to suggest that the

drafters of the Confrontation Clause, offended by the unfairness

of an accused blindly combating ex parte affidavits, meant to

swing the pendulum so far as to bestow upon a defendant a

litigation boon consisting of the ability to fabricate without

challenge. A defendant’s presence at trial is meant to give

meaning to his right of confrontation and to enable him to

decide whether or not to exercise his right to testify. See pp.

27-28, supra. It is not designed to enable him to decide what to

testify to or what defense to muster “reliant on the prosecutor’s

disability to challenge his testimony.” Walder v. United States,

347 U.S. 62, 65 (1953). To rule otherwise would indeed be to

transform the confrontation right into a “positive invitation to

mutilate the truth.” Brown v. United States, 356 U.S. at 156.

Thus, the “constitutional right” identified by the Second

Circuit should be rejected for what it truly is: the unacceptable

ability to “frustrate the truth-seeking function of a trial by

presenting tailored defenses insulated from effective challenge.”

Doyle v. Ohio, 426 U.S. 610, 617 n. 7 (1976); see State v.

Smith, 82 Wash.App. 327, 917 P.2d 1108, 1111-1112 (1996);

People v. Buckey, 424 Mich. 1, 378 N.W.2d 432 (1985).

Deprived merely of this, defendant’s confrontation right was not

“penalized” at all by the prosecutor’s comment and hence the

remarks were not constitutionally objectionable. See South

Dakota v. Neville, 459 U.S. 553, 560 n.10 (1983)(where

suspect lacked constitutional right to refuse to take a blood-

alcohol test, it was permissible to draw an adverse inference

from his refusal to do so); Williams v. Florida, 399 U.S. at 78

(upheld right to compel defendant to file pretrial alibi notice on

ground that depriving defendant of the "right to surprise the

State with an alibi defense" was not protected by the Fifth

Amendment).

In determining that defendant’s confrontation right was

unduly penalized, the Second Circuit nevertheless found that the

prosecutor’s comments attached a burden to the exercise of

defendant’s confrontation right. The court remarked that the

prosecutor’s comments implied that a truthful defendant would

have stayed out of the courtroom before testifying or would

have testified before other evidence was presented, and then

found a valid comparison to the harmful inference in Griffin.

The inference to be drawn from the prosecutor’s comments

here, however, stands in stark contrast to the naturally flowing

and pejorative inference of guilt in Griffin. See United States v.

Francis, 82 F.3d 77, 79 (4* Cir.1996); Resnover v. Pearson,

965 F.2d 1453, 1465 (7 Cir.1992). The prosecutor did not ask

the jurors explicitly or implicitly to infer guilt based upon the

defendant’s exercise of his confrontation right. Perhaps the

analogy to Griffin would be more cogent had she stood before

the jury and argued that if defendant was innocent he would

have not have attended his own trial or have testified in his own

behalf. People v. Buckey, 378 N.W. 2d at 432. But such direct

comment was absent.

Moreover, as the dissent below states, it would “belittle”

(117 F.3d at 719) the “sound common sense” of jurors, “the

most valuable feature of the jury system,” (Dunlop v. United

14. Thus, on the landscape of the law relating to the Confrontation Clause, the

Second Circuit has erected the following standard: while a defendant’s

confrontation right is not necessarily violated where he is denied a face-to-face

encounter with his accusers, see Maryland v. Craig, 497 U.S. at 836; Coy v. lowa,

487 U.S. at 1012, or even where he is banned from the courtroom altogether, see

Illinois v. Allen, 397 U.S. 337 (1970), it is nullified when the prosecutor merely

assails the defendant’s conversion of the constitutional safeguard into a tactical

advantage. |

States, 165 U.S. 486, 500 [1897]), to conclude that the jurors

inferred from the prosecutor’s comments that the only reason

the defendant exercised his right to attend his own trial (and

testify), was because he was guilty. Jurors expect a defendant

to attend his own trial. That this is so is demonstrated by the

fact that jurors are instructed against drawing an adverse

inference when the defendant is absent from his trial. See |

Comm. On Criminal Jury Instructions of the Office of Court

Administration, Criminal Jury Instructions New Y ork, Section

4.22 (1" ed. 1983). Similarly, that the adverse inference

naturally, and perhaps inevitably, drawn from a failure to testify

is greater than the one suggested by the Second Circuit is

proven by the need to instruct a jury that they are to draw no

inference from a defendant’s failure to testify. Carter v.

Kentucky, 450 U.S. at 288; Lakeside v. Oregon, 435 U.S. at

333. No one has ever seriously suggested that an adverse-

inference charge is required when a defendant attends his own

trial.

Additionally, the defendant had ample opportunities to

offset any such inference that the jury might have drawn.

Because the order of trial and the power to reopen the case rests

within the discretion of the trial court, Thiede v. Utah

Territory, 159 U.S. 510, 519 (1895); United States v.

Matsushita, 794 F.2d 46, 51-52 (2d Cir. 1986), defense counsel

could have moved to reopen the case after closing argument,

Morris v. Slappy, 461 U.S. 1, 13 n.5 (1983), after the case had

been submitted to the jury, United States v. Bayer, 331 U.S.

532, 539 (1947); Blissett v. Lefevre, 924 F.2d 434, 439 (2d

Cir.1991); and, even after supplemental jury instructions.

United States v. Smith, 44 F.3d 1259, 1271 (4* Cir. 1995); see

also Goldsby v. United States, 160 U.S. 70, 74 (1895)(in sound

discretion of court to admit rebuttal evidence). But he never

moved to do so. This stands in stark contrast to Griffin, who

was unable to counter the prosecutor's summation comments

without relinquishing his right to remain silent.'*

Finally, far from impairing the policies underlying the

right of confrontation, the comments here furthered a central

goal shared by that constitutional provision. The Confrontation

Clause was designed to supplant the historic practice of trial by

depositions and ex parte affidavits with a system involving live

testimony under oath, subject to cross-examination, and with

demeanor bared to the watchful eyes of the trier of fact. Mattox

v. United States, 156 U.S. 237, 242-243 (1895). As this Court

has remarked, the primary object of the Confrontation Clause is

"the search for truth," Douglas v. Alabama, 380 U.S. 415, 418-

419 (1965), and its paramount concern the “accuracy of the

truth-determining process.” Maryland v. Craig, 497 U.S. at

846-847 (citation omitted). Cross-examination, as well as the

other attributes of the right, are indeed valued so highly

precisely because they help insure the accuracy of the result at

trial. White v. Illinois, 502 U.S. 346, 356-357 (1992); Lee v.

Illinois, 476 U.S. 530, 540-541 (1986)."° The prosecutor’s

comments here, designed to alert the jury’s attention to a factor

bearing directly on defendant’s credibility, served this same end,

wr ergy advanced a primary goal of the right allegedly

violated.

Ane EE PE Seine

lal, defense counsel could hardly have been surprised by the prosecutor’ s

remarks: Moreover, it is the role of a defense attorney to anticipate what arguments

will be made. See McMann v. Richardson, 397 U.S. 759, 769-770 (1970).

16. Carolyn M. Nichols, The Interpretation of the Confrontation Clause: Desire to

Promote Perceived Societal Benefits and Denial of the Resulting Difficulties

Produces Dichotomy in the Law, 26 N.M. L. Rev. 393 (Summer1996), 5 James H.

Chadbourne, Wigmore Evidence in Trials at Common Law, Section 1395 (1974).

B. The Right To Testify

Citing Griffin, the Second Circuit concluded that the

prosecutor’s comments inappropriately “chilled” defendant's

right to testify because comments of that type compel an

accused to either forgo the right or be inappropriately attacked.

This facile reliance on Griffin was misplaced.

Rather than being “chilled” in any respect, defendant's

right to testify was merely subjected to the normal truth-seeking

devices that receive constitutional approval. Despite its

magnitude, the right to testify is not without limitations, and

may “bow to accommodate other legitimate interests in the

criminal trial process." Rock v. Arkansas, 483 U.S. at 55-56;

see United States v. Scheffer, 118 S.Ct. 1261, 1264 (1998). As

demonstrated above, society’s paramount and fundamental goal

in obtaining the truth through a rigorous adversarial ;» ocess is

such a legitimate interest, and that interest is served sy aowing

full impeachment of a defendant’s credibility much in the way

any other witness’ veracity and believability are assailed.

Commenting on a defendant's credibility by arguing that

his testimony is tailored based upon his advantage in observing

the testimony of the other witnesses is no greater burden on the

right to testify than any of the myriad constitutionally sound

impeachment tools at a prosecutor's disposal. See pp. 18-20,

supra. If anything, the prosecutor’s comments were less

burdensome than an interested witness charge considering that

the arguments of counsel lack the impact and influence of a

court’s instructions. See Carter v. Kentucky, 450 U.S. 288, 304

(1981); Taylor v. Kentucky, 436 U.S. 478, 488-489 (1978).

The mere fact that the defendant is compelled to weigh the risk

of being accused of tailoring merely implicates a tactical issue

and is no more coercive than his having to calculate the risks

involved with these other forms of impeachment.

Also, the weight of the inference to be drawn from the

comments herein can hardly be compared to that in Griffin. The

prosecutor merely argued that the defendant wrongfully

conformed his testimony around that of the prosecution

witnesses. She never asked the jury to infer guilt based upon

defendant’s act of testifying in his own behalf: nor did the jury,

nor would any jury, do so. The natural assumption of guilt is

drawn from a defendant's failure to testify, not the act of

testifying. Indeed, Griffin was based on that assumption.

Finally, the Second Circuit's conclusion cannot be

reconciled with the history of the right to testify. At common

law, the accused was not permitted to testify due to the fear that

his interest in the outcome, like other parties, "might tend to a

perversion of the truth." Reagan v. United States, 157 U.S. at

306; see Rock v. Arkansas, 483 U.S. at 49-50; Nix v. Whiteside,

475 US. at 164; Carter v. Kentucky, 450 U.S. at 296 n.9. It is

doubtful that the drafters of the Constitution, who, in allowing

a defendant to testify, tolerated the unreliability born of his

interest in the outcome while intending to disable prosecutors

from impeaching his reliability based upon his exposure to the

testimony.

Cc. The Due Process Issue

In finding a due process violation, the Second Circuit

assumed the existence of a Griffin-like error. Rather than

engaging in any independent analysis to conclude that the

prosecutor committed error, the court simply asserted, “A

comment which directly disparages the defendant’s exercise of

constitutional rights can be severe misconduct regardless of its

length” and compromises “the very fairness of the entire trial.”

117 F.3d at 713. However, Griffin was not premised on a due

process violation; in fact, no such claim was ever raised in

Griffin. Griffin, 380 U.S. at 619 (Stewart, J., dissenting).

Thus, the Second Circuit’s assumption of error cannot serve as

the basis for the conclusion that the defendant’s due process

rights were violated.

Moreover, even assuming that the prosecutor’s

comments were objectionable, the comments did not affect the

fairness of the trial. The comments were invited by the remarks

of defense counsel; the remarks were brief and isolated; the

proof of guilt was strong; and, the court gave adequate guidance

to the jury concerning the effect to be given the remarks.

Even assuming that error occurred here, not every trial

error by a prosecutor results in a denial of constitutional due

process. Donnelly v. DeChristoforo, 416 U.S. 637, 647-648

(1974). It is “not enough that the prosecutors’ remarks were

undesirable or even universally condemned.” Darden v.

Wainwright, 477 U.S. 168, 182 (1986). The only question

relevant for review is whether the prosecutor’s remarks “so

infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Donnelly, 416 U.S. at 643.

Indeed, “the touchstone of due process analysis in cases

of alleged prosecutorial misconduct is the fairness of the trial,

not the culpability of the prosecutor.” Smith v. Phillips, 455

U.S. 209, 219 (1982); see also Michigan v. Tucker, 417 U.S.

433, 448 (1974) (“the law does not require that a defendant

receive a perfect trial, only a fair one”); Brown v. United States,

411 U.S. 223, 231-232 (1973) (same). And “the appropriate

standard for review on a writ of habeas corpus is ‘the narrow

one of due process, and not the broad exercise of supervisory

power.” Darden v. Wainwright, 477 U.S. at 181, quoting

Donnelly, 416 U.S. at 642.

Several reasons support the conclusion that the

prosecutor’s comments did not contaminate defendant’s trial.

First, the remarks of the prosecutor were invited by defense

counsel. Although the invited response doctrine cannot be used

to “excuse improper comments,” it can be used “to determine

their effect on the trial as a whole.” Darden, 477 U.S. at 182,

citing United States v. Young, 470 U.S. 1 (1985). Under this

doctrine, the defense summation may open the door to an

otherwise inadmissible prosecution rebuttal so long as the

prosecutor's response, when viewed in the context of the trial

and the defense arguments, is a reasonable one. Young, 470

U.S. 1, 11-12 (1985); Lawn v. United States, 355 U.S. 339, 359

n.15 (1958). Considering the provocation by the defense

a prosecutor’s tailoring argument was

“invited.”

From the outset, defense counsel pressed the claim that

the prosecution witnesses had collaborated in fabricating a case

against defendant and that Agard's testimony was more credible

and consistent than theirs. Throughout the trial he attacked

them as liars, characterized their testimony as scripted, and

spoke of how Ms. Winder lied because the truth “did not fit her

story.” Through her claim that defendant had tailored his

testimony, the prosecutor was merely “accepting the challenge,"

Crumpton v. United States, 138 U.S. 361, 364 (1891) laid down

by defense counsel and attempting to "right the scale." Young,

470 U.S. at 14. Considering that the "adversary system permits

a prosecutor to ‘prosecute with earnestness and vigor," United

States v. Young, 470 U.S. at 7, and the wide latitude given to

attorneys in responding to argument, United States v. Tocco,

135 F.3d 116, 130 (2d Cir. 1998); United States v. Coleman, 7

F.3d 1500, 1506 n.4 (10 Cir. 1993), this response was proper.

United States v. Robinson, 485 U.S. at 25 (court rejected

Griffin violation as basis for reversal where remarks were

invited).

Second, the proof of guilt was strong, described by the

state appellate court as “overwhelming.” This minimized the

likelihood that the prosecutor’s remarks infected the entire trial.

Identity was not at issue -- defendant conceded that he had a

sexual encounter with the victim. Moreover, the victim’s claim

of a forced sexuz! encounter was substantiated by a wealth of

independent evidence. The photographs of her taken the day

after the crime and weeks later showed the lingering effects of

the battering visited upon her by defendant. Medical testimony

and records and the testimony of the assigned detective

concerning the nature and extent of the victim’s injuries further

supported the victim’s claim that there was a forcible sexual

encounter. Also, defendant himself supplied inculpatory

evidence that weakened his own claim that the sexual encounter

was consensual. This consisted of both his apology to the

victim the day after the attack for being a “golden asshole,” and

his false statements to the assigned detective concerning his

possession of the weapon that he used to threaten the victim. In

light of this proof, it is unreasonable to assume that the jury

would have acquitted defendant of all counts had the prosecutor

not made the challenged remarks.

Third, instructions by the trial court also minimized the

impact of the prosecutor’s remarks. The trial court repeatedly

defined “evidence” for the jury (Record: 3-4, 830, 831),

instructed the jury that it was only to consider the evidence in

rendering a verdict (Record: 826, 827, 843), and emphasized

that the arguments of counsel, which the jurors were free to

reject, did not constitute evidence (Record: 2, 828, 847).

Additionally, the court incessantly instructed the jurors that they

were the sole and exclusive judges of the facts (Record: 825,

828, 830, 83 1-832, 846-847), and that it was their “recollection,

understanding and evaluation of the facts” that controlled

regardless of the arguments of counsel or comments of the court

(Record: 827). The trial court even interrupted the prosecutor’ s

summation to reiterate this point (Record: 789). These firm

instructions adequately alerted the jury to the minimal weight to

accord the prosecutor’s comments. See Darden v. Wainright,

477 U.S. 168 (1986).

This finding is consixient with the “crucial assumption”

that juries are presumed to follow their instructions. Greer v.

/Ailler, 483 U.S. 756, 766 n.8 (1987), Francis v. Franklin, 471

U.S. 307, 324 n.9 (1985); Parker v. Randolph, 442 U.S. 62, 73

(1979). Indeed, this Court has presumed “that jurors, conscious

of the gravity of their task, attend closely the particular language

of the trial court’s instructions in a criminal case and strive to

understand, make sense of, and follow the instructions given

them.” Francis v. Franklin, 471 U.S. at 324 0.9. This rule “is

a pragmatic one, rooted less in the absolute certitude the

presumption is true than in the belief that it represents a

reasonable practical accommodation of the interests of the state

and the defendant in the criminal process.” Richardson v.

Marsh, 481 U.S. 200, 211 (1987); see Shannon v. United

States, 512 U.S. 573, 586 (1994). Applying these principles

here establishes that, contrary to the Second Circuit’s decision,

the trial court’s final charge sufficiently protected defendant’s

right to a fair trial.'’

17. The fact that these mstructions were delivered as part of the final charge to the

junes follow instructions to the court's final charge, “it would be pointless for a

tnal court to instruct a jury, and even more pointless for an appellate court to

Fourth, it is significant that the defendant merely claims

that the single remark at issue here was erroneous. This remark

occurred over the course of a ten-day trial that consumed over

1100 pages of transcript. It cannot be said that the “[i)solated

passage of a prosecutor’s argument, billed in advance to the jury

as a matter of opinion not of evidence” was worthy of the

issuance of a writ. Donnelly v. Christoforo, 416 U.S. at 646.

Finally, it is apparent that the prosecutor’s remarks did

not cause the jury to wholly reject defendant’s testimony. The

jury requested that his testimony be read back during

deliberations (Record: 969). Moreover, it is evident that the

jury carefully scrutinized the evidence, it sent out a total of ten

notes requesting readbacks of testimony and instructions on the

law over a period of four days. In fact, the trial judge noted that

the jury had asked for every item of evidence and for almost all

the testimony (Record: 1018). Further, although the jury

deliberated on counts of rape, sodomy, and assault, it

nevertheless acquitted defendant of all charges but Sodomy in

the First Degree and Criminal Possession of a Weapon in the

defendant received all he was entitled to -- an impartial jury that

returning its verdict.

IV. No Factual Predicate Is Required to Comment on a

Defendant’s Opportunity to Hear Testimony; Moreover,

the Prosecutor Provided a Factual Basis for Her Comments

That Defendant Tailored His Testimony.

Upon attempting to narrow the scope of its rule, the

Second Circuit stated that the prosecutor's error took the form

v. Randolph, 442 U.S. at 74.

of failing to establish a factual predicate for the summation

argument. The court disparaged the prosecutor’s comment on

defendant’s opportunity to hear the other witnesses, holding that

a specific showing of a “fit between the testimony of the

defendant and other witnesses” was required. This was error.

At the outset, no factual predicate, other than a showing

that the defendant was present during the taking of testimouy,

is required to comment merely upon a defendant’s opportunity

to hear other witnesses and the concomitant impact on his

credibility. This is because every defendant who is exposed to

the testimony of another is susceptible to the ills of innocent

confabulation and the temptation to tailor. This is no different

than defendants who are unaffected by their interests in the

outcome of the case being subjected to an interested witness

charge. Just as an interested witness charge may be delivered in

every case, leaving the jury to assess the weight to be accorded

this motive in the individual case, Reagan v. United States, 157

U.S. at 305, a comment on defendant’s exposure to other

witnesses may be made as a matter of course, leaving the jury to

assess the impact of that exposure in the case before it.

Indeed, as the Second Circuit has acknowledged, it is

virtually impossible to determine how a person’s testimony is

affected by having heard other witnesses. As that court has

stated, “only with 20/20 hindsight could a party demonstrate

what would have been said had a witness been sequestered.”

United Siates v. Jackson, 60 F.3d 128, 136-137 (2d Cir. 1995).

Yet in the context presented here, the Second Circuit requires

a prosecutor to possess "20/20 hindsight" as a predicate to

making argument on the mere opportunity to hear testimony.

Moreover, the Second Circuit’s requirement of a

showing of a “fit” between a defendant's testimony and that of

other witnesses as a prerequisite to accusing a defendant of

tailoring his testimony ignores the role demeanor plays in a jury's

credibility determinations. A defendant's demeanor on the

witness stand may alone lead to the conclusion that his

testimony is tailored.

Indeed, in this case the prosecutor properly relied on the

defendant’s demeanor and manner of testifying in support of her

argument that his testimony was tailored. See Reagan v. United

States, 157 U.S. at 305; Johnson v. United States, 157 U.S. at

326. She asked the jury to consider the “smooth slick character

you saw here” and asked them if the manner in which defendant

testified concerning how he fought off Ms. Winder “sound[ed]

rehearsed” (JA: 45, 48). Under the standard pronounced by the

Second Circuit, however, such demeanor evidence was virtually

irrelevant, a conclusion that undermined the role of jurors as

factfinders.

Even ifmore w quired, the prosecutor provided it

with specific references 1. efendant’s testimony. She pointed

out that defendant’s testimony essentially corroborated that of

the prosecution witnesses but for his denial of the crimes, and

that “[e])verything else fits perfectly” (JA: 46-47). She also

referred to how defendant’s explanation that Ms. Winder

attacked him due to concern about her boyfriend was proffered

because it “fits the whole scenario here” (JA: 37-39). And she

directed the jury’s attention to the fact that it was only on cross-

slapped him during their first encounter (JA: 48). In light of

these references, it is difficult to comprehend the Second

Circuit’s finding that the prosecutor solely relied on defendant’ s

presence at trial to make her tailoring argument and that she

failed to support her argument.

Thus, the Second Circuit’s conclusion that a writ should

be issued based upon the prosecutor’s failure to establish a

factual predicate for her summation comments was based on an

erroneous legal rule and an inaccurate reading of the record.

Thus, Griffin v. California does not provide any basis

for the conclusion that the defendant’s constitutional rights were

violated. Rather than standing for the broad proposition that a

prosecutor may never comment on a defendant’s exercise of his

constitutional rights, Griffin merely represents one case in a

spectrum of cases that mandates the implementation of a

balancing test in determining the propriety of governmental

practices, including prosecutorial comment, that may tend to

discourage the exercise of a defendant’s constitutional rights.

Application of that test to the comments here coinpels the

conclusion that they were proper. Defendant’s exposure to the

testimony of other witnesses and his use of that opportunity

were central to his credibility. Thus, the comments materially

advanced the truth-seeking function of the trial without

impermissibly burdening defendant’s right of confrontation, right

to testify, and right to due process.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.