Amicus Curiae Brief — Portuondo v. Agard

Supreme Court of the United

S

LEONARD PORTUONDO, Superintendent,

Fishkill Correctional Facility,

Petitioner,

Vv.

RAY AGARD,

Respondent.

¢

On Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

BRIEF AMICUS CURIAE FOR THE

NEW YORK STATE DISTRICT ATTORNEYS

ASSOCIATION IN SUPPORT OF PETITIONER

¢

WituaM J Fitzpatrick

President, New York State

District Attorneys Association

Onondaga County

District Attorney’s Office

421 Montgomery Street

Civic Center, 12th Floor

Syracuse, New York 13202

Steven A. Hovani*

Micuaet J. MILcer

Assistant District Attorneys

Suffolk County

District Attorney’s Office

200 Center Drive

Riverhead, New York 11901

(516) 852-2500

* Counsel of Record for

Amicus Curiae

June 7, 1999

QUESTIONS PRESENTED

1. A corollary to the Fifth Amendment protection

against compelled testimony (and aspects of the Sixth

and Fourteenth Amendments) is the right to be present at

trial. A defendant who is both present at trial and chooses

to testify has been protected by the derivative right and

has waived the Constitutional right. Should the holding

of Griffin v. California be expanded to prohibit comment

on a testifying defendant's credibility when the underly-

ing Constitutional mandates have been fulfilled?

2. Griffin v. California held that the jury could not

infer guilt from a defendant's invocation of his right to

remain silent. Once respondent testified he waived

Griffin's protection but the lower court transposed the

reasoning of Griffin to a Sixth Amendment claim to pre-

clude comment on respondent's credibility as exposed by

his choice of when to testify. Should the lower court’s

alchemy be ratified when the concerns underlying Griffin

no longer exist?

TABLE OF CONTENTS

Page

Gesotions Presented «0.00. cc scccccccccccsscccccces aoe

re COR, beens cccncwcedevtcsdsccecesens ee

Ne ID oc voi ckcecdendntastevcscencness —

PEE GE NEES occ ccc ct tedcccosceccescevecvene 5 oe

Constitutional Provisions Involved................ oy

Summary of Argument ...... 2.2.66... eee cence es Ne

ATHUMONE .... 2. cree ccccceccccvenccecesesecencoees » 8

THE DECISION OF THE SECOND CIRCUIT COURT

OF APPEALS SHOULD BE REVERSED BECAUSE IT

ERRONEOUSLY EXPANDS THE PROTECTIONS OF

THE FIFTH AND SIXTH AMENDMENTS......... ,

Il.

THE HOLDING AND REASONING OF GRIFFIN

V. CALIFORNIA SHOULD NOT BE EXPANDED)

TO PROHIBIT COMMENT ON THE CRED»-

IBILITY OF A DEFENDANT WHO HAS TESTI-

PRS noackiae sé coh ek sed uh bCbad Comes te fencecese :

THE PROSECUTOR’S SUMMATION COM.-

MENTS ON DEFENDANT'S PRESENCE IN THE

COURTROOM AND HIS RESULTANT OPPOR.-

TUNITY TO CONFORM HIS TESTIMONY TO

THAT OF OTHER WITNESSES WERE PERMISS-

IBLE AND DID NOT HAVE A SUBSTANTIAL

OR INJURIOUS INFLUENCE ON THE JURY’S

WG 5 b.6bsv.beb cb yes videcneveccvedecessons :

A. The Second Circuit’s holding rests on ain

unwarranted extension of the rationale of

Griffin v. California ..........-00ceeeee eee.

ee ec keewb ine

11

Conclusion

TABLE OF CONTENTS - Continued

Page

2. The prosecutor’s comments did not bur-

den defendant's Sixth Amendment right

of confrontation

3. Even assuming that defendant's right to

confrontation was burdened by the pros-

ecutor’s summation remarks, that bur-

den was not of the same type or degree

as the one condemned by this Court in

RS baedhedcdbacsevesdeecieces ieee:

4. Additional defects in the Second Cir-

cuit’s analysis contributing to its erro-

EE CT on Gucceseuresccescdeeves

B. Defense counsel’s summation “invited” the

prosecutor’s remarks

ee

C. Under the narrow standard of federal

habeas review of a claim of prosecutorial

misconduct the comments had no substan-

tial and injurious effect

eee eeepeeeeeeeeeeeeeeeeeeeeeeeeeeeeneeeeee

13

20

24

25

Iv

TABLE OF AUTHORITIES

Page

Cases

Agard v. Portuondo, 117 F.3d 696 (2nd Cir. 1997) passim

Agard v. Portuondo, 159 F.3d 98 (2nd Cir. 1998) .. passim

Barefoot v. Estelle, 463 U.S. 880 (1983) ............... 27

Bentley v. Scully, 41 F.3d 818 (2nd Cir. 1994)......... 28

Brecht v. Abrahamson, 507 U.S. 619 (1993)............ 27

Brooks v. Tennessee, 406 U.S. 605 (1972) ..6, 9, 10, 13, 15

Brown v. United States, 356 U.S. 148 (1958) .......... 25

California v. Green, 399 U.S. 149 (1970) .............. 12

Carter v. Kentucky, 450 U.S. 288 (1981)............... 15

Corbitt v. New Jersey, 439 U.S. 212 (1978)............ 15

Coy v. lowa, 487 U.S. 1012 (1988)..............-.065. 11

Diaz v. United States, 223 U.S. 442 (1912)............ 12

Donnelly v. DeChristofaro, 416 U.S. 637 (1974) ........ 27

Douglas v. Alabama, 380 U.S. 415 (1965).............. 25

Engle v. Isaac, 456 U.S. 107 (1982) ....... 2.6.6. e enue 27

Furman v. Georgia, 408 U.S. 238 (1972)............4.. 15

Gerstein v. Pugh, 420 U.S. 103 (1975) ...........-.4.. 12

Gonzalez v. Sullivan, 934 F.2d 419 (2nd Cir. 1991) .... 28

Griffin v. California, 380 U.S. 609 (1965).......... passim

Harris v. New York, 401 U.S. 222 (1971).............. 17

Illinois v. Allen, 397 U.S. 337 (1970) ...........60005: 13

Kentucky v. Stincer, 482 U.S. 730 (1987).............. 12

v

TABLE OF AUTHORITIES - Continued

Page

Malloy v. Hogan, 378 U.S. 1 (1964).................44. 6

Maryland v. Craig, 497 U.S. 836 (1990)............ 11, 12

McGautha v. California, 402 U.S. 183 (1971) .......... 15

Mitchell v. United States, __ US. __, 119 S.Ct.

GT Ga bceWankscictabdhcebevcsccccesiceress 8, 21

Nix v. Whiteside, 475 U.S. 157 (1986)................. 17

Ohio v. Roberts, 448 U.S. 56 (1980)................... 12

Oregon v. Hass, 420 U.S. 714 (1975)..... pi dkeseecntes 17

Pennsylvania v. Muniz, 496 U.S. 582 (1990)............ 6

People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204,

Dey CR Oe GINO hese cde tb eectdusctaediceees 28

People v. Bartolomeo, 126 A.D.2d 375, 513 N.Y.S.2d

Se Ge NS CREED oe cob vnvesccsdévecansscdcncess 24

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

Sy GUE Asascececaseciencredcaésbepbiaadsanes 20

People v. Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d 795,

See Pe Ge GEGEN bo Cncdenreniidecadatdavecdes 24

People v. Olsen, 34 N.Y.2d 349, 357 N.YS.2d 487,

ee CE SU ED ocbccetensedcddctdeodsoedees 24

People v. Ruine, __. A.D. ___, 685 N.Y.S.2d 47 (ist

BS WOU onadcdvavicdsndshienbhscdaviahenaddad 24

Perry v. Leeke, 488 U.S. 272 (1989)................4.. 13

Proffitt v. Florida, 428 U.S. 242 (1976)................ 16

State v. Cassidy, 236 Conn. 112, 672 A.2d 899

EE, TED ed vtcccecévcntvevestestess cstdenesace 20

vi

TABLE OF AUTHORITIES - Continued

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

Rhee er ae ie

State v. Smith, 82 Wash. App. 327, 917 P.2d 1108

(Wash.App.Div. 1996) .... 2... 6.66 eee eens

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

Teague v. Lane, 489 U.S. 288 (1989) ..........0005.

United States v. Appelbaum, 445 U.S. 115 (1980) ...

United States v. Cruz, 797 F.2d 90 (2nd Cir. 1986) ....

United States v. Dunnigan, 507 U.S. 87 (1993) .....

United States v. Frady, 456 U.S. 152 (1982)........

United States v. Grosz, 76 F.3d 1318 (5th Cir. 1996) ....

United States » Gwaltney, 790 F.2d 1378 (9th Cir.

1986), cer. «ied, 479 U.S. 1104 (1987).........

United States v. Johnson, 756 F.2d 453 (6th Cir. 1985) ....

United States v. Mandujano, 425 U.S. 564 (1976)...

United States v. Matthews, 20 F.3d 538 (2nd Cir.

United States v. Nunez-Carreon, 47 F.3d 995 (9th

Cir.), cert. denied, 515 U.S. 1126 (1995)..........

United States v. Pelullo, 964 F.2d 193 (3rd Cir. 1992) ....

United States v. Robinson, 485 U.S. 25 (1988)......

Page

Vii

TABLE OF AUTHORITIES - Continued

CONSTITUTIONS

ee EY SE, Wiese scaboustanouessdhoices passim

ek SE TE cdncben sadectsabikeuntancs passim

OrHeR AUTHORITIES

Richard D. Friedman, Character Impeachment Evi-

dence: Psycho-Bayesian Analysis And A P

Overhaul, 38 UCLA L. Rev. 637, 667-68 (1991) ..... 21

Alan D. Hornstein, Between Rock and a Hard lace:

The Right to Testify and Impeachment by Prior

Conviction, 42 Vill.L.Rev. 1 (1997) ................. 15

1

INTEREST OF AMICUS CURIAE!

The New York State District Attorneys Association is

a statewide organization consisting of the elected District

Attorneys of all 62 New York State counties, as well as

Assistant District Attorneys from most, if not all, of those

counties. Its total membership is approximately 1,000.

The Association has obtained the consent of the parties to

appear as amicus curiae in this proceeding, because of the

presence of a question of law which is of great impor-

tance to prosecutors throughout this State. The issue is

whether the State trial prosecutor's summation comment

that defendant had an advantage at trial because he heard

other witnesses before testifying constituted a prejudicial

violation of defendant's Fifth and Sixth Amendment

rights. Six State court judges and the district court judge

who denied Agard’s petition for a writ of habeas corpus

found no prejudicial error; following rehearing, the

United States Court of Appeals for the Second Circuit

held that, in the absence of a factual showing that defen-

dant tailored his testimony, reference to defendant's pres-

ence during trial and the resulting opportunity to tailor

his testimony required vacatur of his State court convic-

tion. Agard v. Portuondo, 159 F.3d 98 (2nd Cir. 1998).

The Association sought to appear as amicus curiae in

this appeal because this Court's decision concerning the

challenged practice will have significant impact on State

prosecutors.

! No entity other than members of amicus, New York State

District Attorneys Association, contributed to the preparation

or submission of this brief, which was authored by Suffolk

County Assistant District Attorneys Steven A. Hovani and

Michael J. Miller.

2

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment V - Grand Jury Indictment for Capital

Crimes; Double Jeopardy; Self-incrimination; Due Pro-

cess 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 use,

without just compensation.

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 wit-

nesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the Assis-

tance of Counsel for his defence.

3

SUMMARY OF ARGUMENT

The New York State District Attorneys Association

maintains that the decision of the Circuit Court is wrong

because of its unwarranted reliance on the holding and

reasoning of Griffin v. California, 380 U.S. 609 (1965). The

Circuit Court both relied on the holding of Griffin to find

a Fifth Amendment violation and the reasoning of Griffin

to find a Sixth Amendment violation. Specifically, the

lower court held that the prosecutor’s reference to defen-

dant’s credibility unduly burdened his right to testify on

his own behalf and his right to confront the witnesses

against him.

Griffin, however, prohibited inferring guilt from

silence. This concern is not present here because defen-

dant testified and the prosecutor’s comments did not ask

the jury to find defendant guilty because of the timing of

his testimony. Rather, the prosecutor only asked the jury

to assess defendant's credibility in light of his trial tactics.

Furthermore, the allegedly erroneous remarks were both

fair comment on the evidence and a fair response to

issues raised in defendant’s summation.

ARGUMENT

THE DECISION OF THE SECOND CIRCUIT COURT

OF APPEALS SHOULD BE REVERSED BECAUSE IT

ERRONEOUSLY EXPANDS THE PROTECTION OF

THE FIFTH AND SIXTH AMENDMENTS.

Notwithstanding the narrow scope of federal habeas

review of state convictions, in Agard v. Portuondo, 117 F.3d

696 (2nd Cir. 1997), reh., 159 F.3d 98 (2nd Cir. 1998), the

Second Circuit vacated respondent's conviction based on

4

what is arguably a new rule; it became the first federal

court? to conclude that a prosecutor’s summation sugges-

tion that the jury consider defendant's presence in the

courtroom throughout the trial, and his resultant unique

opportunity to tailor his testimony to that of other wit-

nesses, impermissibly burdens the exercise of Fifth and

Sixth Amendment rights and deprives the defendant of a

fair trial. The court erred because the challenged com-

ments, which proposed a reasonable, permissive infer-

ence to the triers of fact, were appropriate. In the

alternative, the remarks constituted a permissible

response to defense counsel’s summation and did not

violate Agard’s constitutional rights. We ask this Court to

reverse and to reinstate respondent’s convictions.

THE HOLDING AND REASONING OF GRIFFIN V.

CALIFORNIA SHOULD NOT BE EXPANDED TO PRO-

HIBIT COMMENT ON THE CREDIBILITY OF A

DEFENDANT WHO HAS TESTIFIED.

The New York State District Attorneys Association is

concerned that the decisions in Agard v. Portuondo, 117

F.3d 696 (2nd Cir. 1997) (Agard I) and Agard v. Portuondo,

159 F.3d 98 (2nd Cir. 1997) (Agard II) unwisely and

wrongly expand the holding of Griffin v. California, 380

2 As the Second Circuit noted, the highest courts in

Connecticut, Maine, the District of Columbia, Vermont, and

Massachusetts, along with the Court of Appeals of Washington

State, have agreed that prosecutorial commentary on a

defendant's presence during the testimony of other witnesses is

improper. On the other hand, the Supreme Court of Michigan

and the intermediate appellate courts of Minnesota, New Jersey,

and Texas, which addressed similar remarks, did not find error.

5

U.S. 609 (1965). Too, the Second Circuit has taken another

step down the slippery slope to the complete federaliza-

tion of State criminal law. We maintain that both Agard |

and Agard II incorrectly interpret the United States Con-

stitution. In Agard | the court followed the reasoning in

Griffin to hold that the defendant’s Sixth Amendment

right to confrontation was violated when the prosecutor

questioned the defendant's credibility by noting the

sequence of the trial testimony. Agard I, at 709-12. In

Agard II the court refined Agard I but adhered to the

formula that the reasoning from Griffin controlled the

outcome of this case. The court also held that the reason-

ing of Griffin led to the conclusion that the prosecutor’s

comments about the defendant's credibility had a chilling

effect on the defendant’s implicit Fifth Amendment right

to testify on his own behalf. Agard I, at 712.

By opting to testify, however, respondent waived the

protection of Fifth Amendment, which in any event does

not apply to credibility issues. More importantly there is

no basis to import the Griffin reasoning to a claim that the

defendant's right to testify on his own behalf was unduly

burdened. Since the Fifth Amendment and Griffin v. Cali-

fornia infect the Agard I and Agard II Sixth Amendment

analysis, the sequence of discourse will be inverted from

the one used in Agard I; that is, we will discuss the

implied Fifth Amendment right to testify before assessing

Griffin's impact on the Sixth Amendment claim.

The core protection of the Fifth Amendment was

waived by defendant. In pertinent part the Fifth Amend-

ment reads that, “nor shall (any person) be compelled in

any criminal case to be a witness against, himself, nor be

deprived of life, liberty, or property, without due process

6

of law.” The Fifth Amendment prohibits compelled testi-

mony, which, with regard to criminal defendants, simply

means that they cannot be forced to become a witness at

their own trial. South Dakota v. Neville, 459 U.S. 553 (1983).

Furthermore, an utterance is coerced only to the extent

that it is offered to establish criminal liability. United

States v. Appelbaum, 445 U.S. 115 (1980); United States v.

Mandujano, 425 U.S. 564 (1976).

Thus, the Fifth Amendment privilege relates to fac-

tual assertions and information disclosed through testi-

monial utterances or conduct. Pennsylvania v. Muniz, 496

U.S. 582 (1990). The Fifth Amendment privilege against

self-incrimination is waived when the defendant decides

to take the stand and testify. Brooks v. Tennessee, 406 U.S.

605 (1972). The essence of the Fifth Amendment is “the

right of a person to remain silent unless he chooses to

speak in the unfettered exercise of his own free will, and

to suffer no penalty . . . for such silence.” Malloy v. Hogan,

378 U.S. 1, 18 (1964). Here, defendant fully waived the

core protection of the Fifth Amendment right to remain

silent. He affirmatively decided to testify at his trial and

there is no contention that his decision was burdened by

any State action. Thus, any error found by the court in

Agard I or Agard II must relate to ancillary, non-textual

Fifth Amendment analysis.

Furthermore, the Fifth Amendment does not apply to

a statement about credibility because there is no factual

or informational assertion by the defendant. The prosecu-

tor’s summation remarks that are the focus of this case

did not refer to any fact or information provided by

defendant. The argument in question did not call defen-

dant a liar or ask the jury to discount his factual recitation

7

because the State believed that defendant was disin-

genuous. Rather, the prosecutor’s argument only asked

the jury to assess defendant's credibility through his testi-

mony. The Fifth Amendment does not apply to an assess-

ment of credibility because this is not a factual or

informational assertion by the defendant about the ele-

ments of the crime; credibility does not establish criminal

liability.

The reasoning in Griffin should not be imported to a

claim that defendant's right to testify on his own behalf

was unduly burdened. The core protection of the Fifth

Amendment testimonial privilege has been expanded to

prevent a prosecutor’s comments about a defendant's

choice to remain silent. Griffin v. California, supra. In

Griffin, the Court reasoned that a defendant has an abso-

lute Constitutional right to remain silent and that a pros-

ecutor’s comments about silence put too heavy a burden

on the right. In essence, it is impermissible to infer guilt

from silence. The Griffin decision, moreover, relegated the

compulsion aspect of the Fifth Amendment to secondary

status.

In Agard I the court adopted the Griffin reasoning to

hold that the prosecutor’s remarks impermissibly bur-

dened the defendant’s Fifth Amendment right to testify

on his own behalf. Agard I, at 712. This analysis should be

rejected. First, this is a novel expansion of the Fifth

Amendment protection and the holding in Griffin. The

Agard II court rejected the belated argument that a new

rule of constitutional law should not be made via a

habeas corpus petition. Teague v. Lane, 489 U.S. 288 (1989).

Although the court in Agard II could, and did, reject the

Teague argument, this was an improvident exercise of

discretion. Agard I and Agard II are not so within the

8

mainstream of conventional wisdom that petitioner

should have anticipated a novel result. In Agard II the

court realized that there was merit to petitioner’s conten-

tion that this was a new rule of constitutional law. Agard

II, at 100. The better practice would have been to amalyze

this issue. At a minimum the result in this case should be

precluded because it is a new rule.

Second, the fabric of traditional Fifth Amendment

analysis has been stretched thin. The rule that a prosecu-

tor cannot comment on a defendant's right to remain

silent is derivative of the amendment itself and has often

been called into question. See, Mitchell v. United States,

__ US. __, 119 §.Ct. 1307 (1999) (Scalia, J., dissenting).

Here, of course, defendant was present at trial and

waived his Fifth Amendment testimonial privilege.

Despite waiver of the privilege itself and the derivative

right expounded in Griffin, the Agard I court used Griffin

to expand a second derivative right; the right to testify on

one’s own behalf. Again, the prosecutor’s comments were

not about the substance of the defendant's testimony;

rather they were a_ request for the jury to assess cred-

ibility. Thus, Agard I prevents argument about testimony

which itself is not the subject of the Fifth Amendment

privilege. Even though the defendant has already waived

the core protection afforded by the Fifth Amendment,

Agard I collaterally extends the umbrella of the amend-

ment.

Third, the right of a defendant to testify is already an

ancillary Fifth Amendment right. United States v. Dun-

nigan, 507 U.S. 87, 93 (1993) (“The right to testify on one’s

own behalf in a criminal proceeding is made explicit by

federal statute . . . and, we have said, it is also a right

implicit in the Constitution ...”). The court in Agard |

9

used a corollary to the Fifth Amendment to support an

ancillary right to a right which, at most, is implicit in the

Fifth Amendment. Two wholly derivative rights were

used to collaterally vacate a conviction, even though the

defendant was afforded the full protection of the rights

actually guaranteed in the Constitution. Two secondary

adaptations of the Fifth Amendment should not be used

to cross-validate each other when the textual provisions

of the Amendment have been followed.

Lastly, if Agard I is correct, together with the holding

of Brooks v. Tennessee, 406 U.S. 605 (1972), it unreasonably

restricts the prosecution's ability to sum-up to the jury. In

Brooks a Tennessee procedural rule, which required a

defendant to either testify before any other defense wit-

ness or forego the right to testify, was held to be uncon-

stitutional because it was an impermissible restriction on

the defendant's right to testify. The Tennessee rule under-

cut the privilege by making its assertion costly and the

State’s interest in preventing testimonial influence is

insufficient to override the defendant's right to remain

silent. Still, the defendant ran the risk of having the jury

assess the defendant's credibility in light of the colored or

perjured testimony. Id. at 611-12.

Brooks, together with Griffin, unmistakably estab-

lished that a defendant can choose if and when to testify.

Furthermore, defendant can suffer no penalty if he exer-

cises his right to be free of compelled testimony. The

prosecution can only sum up as to the demonstrable

errors or lacunae in the defendant's testimony. None of

these rules, however, was originally meant to address the

manner, as opposed to the substance, of the defendant's

testimony. If Agard I and Agard II are affirmed, this new

10

rule, combined with the old rule, will prevent all argu-

ment except for a dry recitation of fact.

In Agard I, however, a dry recitation of fact would not

have been fair to the prosecution. The defense summed

up first and attacked the credibility of the victim and

presented the defendant's story as the truth about the

events in question. If Agard I, Brooks and Griffin were

combined, the prosecutor's summation would be

restricted to arguing that the jury should see whether the

defendant's story made sense, or hung together, or any

other catch phrase suggesting it was incorrect. The defen-

dant’s story, however, was incorrect because it was

smooth, consistent and obviously the result of having

molded his testimony to the form provided by what had

gone on before him. The only proper response was to

provide the jury with a suggested road map for assaying

the defendant's credibility. If Agard I is permitted to bar

the type of summation used here, the question of cred-

ibility, which may be determinative in one-on-one cases

such as sex crimes, will be a cipher to the jury.

The Agard | Fifth Amendment holding should be

rejected. There is no basis to conclude that the defen-

dant’s right to testify was in any way burdened by the

prosecutor's summation. The defendant told his story

and had the benefit of defense counsel's summation,

which questioned the veracity of the victim. Since the

Fifth Amendment was never meant to protect observa-

tions about credibility - as opposed to the content of the

communication — there is no reason to cobble a new rule

to prevent comment about a condition not protected by

the Fifth Amendment. If the summation were irrelevant

or otherwise objectionable, State rules of evidence and

procedure are the proper repository for a solution. In

11

other terms, there is no need to federalize this area of law

in order to reach a just result.

THE PROSECUTOR’S SUMMATION COMMENTS ON

DEFENDANT’S PRESENCE IN THE COURTROOM

AND HIS RESULTANT OPPORTUNITY TO CON-

FORM HIS TESTIMONY TO THAT OF OTHER WIT-

NESSES WERE PERMISSIBLE AND DID NOT HAVE A

SUBSTANTIAL OR INJURIOUS INFLUENCE ON THE

JURY’S VERDICT.

A. The Second Circuit’s holding rests on an

unwarranted extension of the rationale of

Griffin v. California.

Griffin v. California precludes inviting the jury to treat

the defendant's decision not to testify as substantive evi-

dence of guilt. Because the Second Circuit applied this

Fifth Amendment based prohibition to an entirely differ-

ent constitutional right, under circumstances which could

not have been contemplated by this Court and in a man-

ner not supported by the reasoning of Griffin, its decision

should be reversed.

1. Introduction.

A criminal defendant's right to be present during

criminal proceedings arises from both the Confrontation

and Due Process Clauses. The Sixth Amendment Con-

frontation Clause guarantees a criminal defendant's right

to directly encounter witnesses (see, Maryland v. Craig,

497 U.S. 836, 846 [1990] [“Face-to-face confrontation

enhances the accuracy of fact finding by reducing the risk

that a witness could wrongfully implicate an innocent

person.”]; Coy v. lowa, 487 U.S. 1012, 1019-20 [1988] [It is

12

always more difficult to tell a lie about a person ‘to his

face’ than ‘behind his back.’ ”]), the right to cross-exam-

ine those witnesses, and the right to be present at all

material stages of the criminal proceeding. See, e.g., Ger-

stein v. Pugh, 420 U.S. 103, 119-20 (1975). The right to

confrontation is intended to “ensure the reliability of the

evidence against a criminal defendant by subjecting it to

rigorous testing” in an adversarial setting. Maryland v.

Craig, supra at 845; see also, Kentucky v. Stincer, 482 U.S.

730, 737 (1987).

While the Sixth Amendment guarantees a defen-

dant’s right to be present at all stages of a trial at which

presence would contribute to the opportunity for effec-

tive cross-examination (Stincer, 482 U.S. at 740), the Four-

teenth Amendment grants the further “right to be present

at any stage of the proceeding that is critical to its out-

come if [defendant's] presence would contribute to the

fairness of the procedure.” Id. at 745. The combined effect

of these two provisions guarantees defendants the right

to be present at all “important stages” of the proceeding.

See, e.g., Diaz v. United States, 223 U.S. 442, 454-55 (1912).

Although the right to face-to-face confrontation is a

core value protected by the Confrontation Clause (Craig,

497 US. at 847, citing California v. Green, 399 U.S. 149, 157

[1970]), the right is not absolute. Thus, in Craig, this

Court recognized that the right to face-to-face confronta-

tion may give way when “necessary to further an impor-

tant public policy ... ” Craig, 497 U.S. at 850. Further, the

admission of the reliable hearsay statements of an

unavailable declarant does not violate a defendant's con-

frontation right. Ohio v. Roberts, 448 U.S. 56, 66 (1980) See

also California v. Green, 399 U.S. 149 (1970) (out of court

statement properly admitted if declarant available for

13

cross-examination). A defendant may also forfeit the

right by his own obstreperous behavior. Illinois v. Allen,

397 U.S. 337 (1970). Plainly, therefore, a defendant's right

to be physically present at trial and to cross-examine

adverse witnesses may be compromised and, under lim-

ited circumstances, entirely eliminated.

A defendant has a constitutional right to decide if

and when to testify. Brooks v. Tennessee, 406 U.S. 605,

611-12 (1972), but one who does waive the right to remain

silent and takes the stand in his or her own defense is

subject to cross-examination regarding the credibility of

that testimony. See, e.g., Perry v. Leeke, 488 U.S. 272, 283

(1989).

2. The prosecutor’s comments did not burden

defendant's Sixth Amendment right of con-

frontation.

In her summation at Agard’s trial the prosecutor

referred to the defendant as “the one who had an answer

for everything” and argued that “|a] lot of what he told

you corroborates what the complaining witnesses told

you. The only thing that doesn’t is the denials of the

crimes. Everything else fits perfectly.” Near the end of

her summation, the prosecutor stated:

You know, ladies and gentlemen, unlike all the

other witnesses . . . 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

14

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

to fit into the evidence?

» * *

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

pid ... He used everything to his advantage.

The court below agreed with Agard that these com-

ments violated his rights to confront the witnesses

against him and to a fair trial. The court distinguished

summation remarks from those uttered during cross-

examination and held:

It is constitutional error for a prosecutor to

insinuate to the jury for the first time during

summation that the defendant's presence in the

courtroom at trial provided him with a unique

opportunity to tailor his testimony to match the

evidence. Agard v. Portuondo, 117 F.3d 696, 703.

The court concluded that the prosecutor’s comments vio-

lated Agard’s “right to confrontation, his right to testify

in his own behalf and his right to receive due process and

a fair trial” because these remarks invited

the jury to consider the defendant's exercise of

his right to confrontation as evidence of guilt,

and, therefore, penalize him for exercising that

right. The comments, which implied that a

truthful defendant would have stayed out of the

courtroom before testifying or would have testi-

fied before other evidence was presented, forced

defendants either to forego the right to be pres-

ent at trial, forego their Fifth Amendment right

to testify on their own behalf, or risk the jury s

suspicion (footnote omitted). Id. at 709.

In so reasoning, the court below ...ischaracterized the

facts and misplaced its reliance on this Court's holding in

Griffin v. California.

In Griffin this Court recognized that judicial encour-

agement of the jury to infer guilt from the defendant's

15

decision not to testify - to view defendant's silence as

substantive evidence of guilt - imposes an unwarranted

penalty on a defendant's exercise of the constitutional

right to refuse to testify. The holding of Griffin was

expanded in Carter v. Kentucky, 450 U.S. 288, 300 (1981),

mandating that, upon request, the court instruct the jury

that it may draw no adverse inference from defendant's

failure to testify, and in Brooks v. Tennessee, 406 U.S. 605,

610-11 (1972), declaring unconstitutional a state statute

requiring defendants who opted to testify to do so before

calling any other witness, because it made the assertion

of the privilege to remain silent too “costly.”

A defendant's right to remain silent is the counter-

part of the right to testify on his or her own behalf.’

Despite Griffin's prohibition on exacting a penalty as the

price of exercising the right to remain silent, however,

defendants are routinely “penalized” for their election to

testify. But as this Court made clear in Corbitt v. New

Jersey, 439 U.S. 212, 218 (1978), “not every burden on the

exercise of a constitutional right, and not every pressure

or encouragement to waive such a right is invalid.” The

rationale of the earlier holding in McGautha v. California,

402 U.S. 183, 214-15 (1971) was similar:*

3 Alan D. Hornstein, Between Rock and a Hard Place: The

Right to Testify and Impeachment By Prior Conviction, 42

Vill.L.Rev. 1, 46-55 (1997). The author catalogues types of

impeachment deemed to impose permissible costs on the

defendant's right to testify.

4 The aspect of McGautha which gave rise to this

observation (that guilt and penalty phases of a capital trial may

be joined in a single proceeding) has not been overruled, but

subsequent cases leave little doubt that bifurcated capital trials

are constitutionally required. See, e.g., Furman v. Georgia, 408

16

The criminal process, like the rest of the legal

system, is replete with situations requiring “the

making of difficult judgments” as to which

course to follow. .. . Although a defendant may

have a right, even of constitutional dimensions,

to follow whichever course he chooses, the Con-

stitution does not by that token always forbid

requiring him to choose.

. * *

It does no violence to the privilege that a per-

son’s choice may open the door to otherwise

inadmissible evidence which is damaging to his

case.

Thus, the right to testify is subject to legitimate

limits, as are many other constitutional rights. If the cost

imposed on defendant's assertion of the right serves a

valid and significant governmental purpose, it should be

constitutionally permissible. This Court has repeatedly

found that the purpose of assisting the jury to ascertain

the truth and, more specifically to limit the effectiveness

of perjured testimony, is a valid and sufficiently signifi-

cant governmental goal to justify the cost to defendants’

right to testify. Thus, the admission of impeaching evi-

dence directed toward the content of defendant's testi-

mony does not unduly burden defendant's exercise of the

right to testify.

For instance, the defendant in United States v. Dun-

nigan, 507 U.S. 87 (1993) was charged with conspiracy to

distribute cocaine. After she testified that she had never

possessed or dealt cocaine, the trial court permitted the

government to offer rebuttal testimony from witnesses

U.S. 238 (1972) (per curiam); Proffitt v. Florida, 428 U.S. 242

(1976).

a

17

who said they had purchased cocaine from defendant.

The court also enhanced her sentence based on its finding

that she had committed perjury. The Court of Appeals for

the Fourth Circuit found the enhancement of defendant's

sentence an unconstitutional inhibition of defendant's

right to testify on her own behalf. Although this Court

confirmed that the defendant had a right to testify, it

reversed, declaring:

Respondent cannot contend that increasing her

sentence because of her perjury interferes with

her right to testify, for we have held on a

number of occasions that a defendant's right to

testify does not include a right to commit per-

jury. 507 U.S. at 96. -

Earlier, in Nix v. Whiteside, 475 U.S. 157 (1986), the Court

had similarly concluded that a criminal defendant's right

to testify did not include the right to commit perjury:

Whatever the scope of a constitutional right to

testify, it is elementary that such a right does not

extend to testifying falsely . . . [because] there is

no right whatever - constitutional or otherwise

- for a defendant to use false evidence. 475 U.S.

at 173.

To prevent perjurious testimony the Court has also per-

mitted the impeachment of defendants by improperly

obtained evidence. Thus, in Harris v. New York, 401 U.S.

222 (1971), ratifying the use of defendant’s uncounseled

statements for impeachment purposes, this Court again

rejected the notion that the right of a defendant to testify

or remain silent can “be construed to include the right to

commit perjury.” 401 U.S. at 225. See-also Oregon v. Hass,

420 U.S. 714 (1975) (the “shield provided by Miranda

cannot be perverted into a license to use perjury by way

of a defense... ” 420 U.S. at 721-22).

18

The focus of the Court's inquiry in these cases was

the probity of portions of defendant's testimony and

what inferences a jury should be permitted to draw from

comparison of that testimony with prior inconsistent

statements; in each case the impeachment evidence

directed at the content of defendant's testimony was

admissible only because the defendant opted to testify on

his or her own behalf. The affirmative penalty on the

defendant's assertion of the right to testify was deemed

permissible because of the resultant advancement of the

search for truth by enhancing the jury’s ability to evalu-

ate defendant's credibility on specific issues.

Indeed, a defendant's very status as defendant is

routinely permitted to be brought to the jury’s attention

by the instruction that a testifying defendant may be

impeached by his or her interest in the outcome of the

case, presumably even in the absence of cross-examina-

tion on the subject. United States v. Johnson, 756 F.2d 453

(6th Cir. 1985); United States v. Nunez-Carreon, 47 F.3d 995

* Cir), cert. denied, 515 U.S. 1126 (1995).

Similarly, when a defendant testifies at trial or other-

wise presents a defense, the prosecutor in his summation

is entitled to comment on defendant's failure “to support

his own factual theories with witnesses.” United States v.

Yuzary, 55 F.3d 47 (2nd Cir. 1995). Even in a criminal case,

a party’s failure to produce witnesses or other non-

cumulative evidence peculiarly within its control creates

a presumption that the unproduced evidence would have

been unfavorable. This neither shifts the burden of proof

nor violates the defendant's right to testify.

The Second Circuit improperly transposed the Fifth

Amendment analysis developed in Griffin to a Sixth

Amendment claim. Here, the Sixth Amendment claim

19

only arose because defendant waived the protection of

the Fifth Amendment and testified. If he had elected not

to testify, there would have been no burden on his con-

frontation rights. In Agard I the court decided that the

prosecutor’s comments about defendant's credibility

made defendant's exercise of his Sixth Amendment right

too costly. But the Sixth Amendment right with regard to

the timing of a defendant’s testimony protects a pro-

cedural choice, not the substance of the testimony pre-

sented. Indeed, there can be little doubt that the

defendant's decision whether or not to testify is based

upon an assessment of the case presented against him:

the weaker the case the less likely the testimony.

On the other hand, a defendant's decision about his

Sixth Amendment rights is not devoid of content. Because

it is based on trial factors rather than a theoretical assess-

ment of constitutional protections, the choice in and of

itself reflects on the defendant's credibility. The Griffin

analysis developed not out of a concern for credibility;

the only consideration was whether the jury would infer

guilt from silence. Since there is little or no likelihood

that a jury will infer guilt from the time or manner of

exercising the Sixth Amendment right to confrontation,

the rationale of Griffin is simply inapplicable in the con-

text of the Sixth Amendment. Here defendant received

the full textual protection of both the Fifth and Sixth

Amendments; rights ancillary to the amendments should

not be used to collaterally vacate the conviction. The

textual rights will be drained of meaning if they become a

subset of unpredictable ancillary rights.

20

3. Even assuming that defendant’s right to

confrontation was burdened by the pros-

ecutor’s summation remarks, that burden

was not of the same type or degree as the

one condemned by this Court in Griffin.

Here, to the extent a burden existed, it was not on the

act of testifying but rather on the act of testifying falsely.

The prosecutor’s comment was only indirectly related to

defendant's right to be present; its thrust was “not that

defendant was present at trial but that his presence gave

him an opportunity to conform his testimony.” People v.

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

State v. Robinson, 157 N.J. Super. 118, 384 A.2d 569, 570

(N.J. 1978); State v. Cassidy, 236 Conn. 112, 672 A.2d 899,

918 (Conn. 1996) (Callahan, J., dissenting). Nor can it be

logically concluded that the prosecutor’s manifest intent

was to comment on the defendant's exercise of his right

to testify or that the character of the remark assured that

the jury would so construe it.

In Griffin, the inference the jury was asked to draw

was not only sanctioned by the trial court, but was also a

natural consequence of defendant's failure to testify. As

one commentator has credibly theorized, juries are far

more likely to understand, and therefore follow, an

instruction to either disregard certain evidence or apply it

only to certain issues, than one asking them not to draw

any inference from the fact that defendant did not testify.5

* “[T]jhe accused's failure to testify affirmatively raises the

jurors’ probability assessment of guilt from the baseline level.

No matter how vigorously the court instructs the jurors not to

take into account that failure to testify, they are almost certain to

do so. ** * The only way to make sense of the instruction is to

treat it as a charge to assume that, whether innocent or guilty,

21

In Griffin this Court also noted the potential impact

of judicial imprimatur on the jury’s native propensity to

draw an inference adverse to defendant: “What the jury

may infer, given no help from the court, is one thing.

What it may infer when the court solemnizes the silence

of the accused into evidence against him is quite

another.” 380 U.S. at 614. Here the challenged comments

were made by the prosecutor rather than the court; while

they arguably fell in the middle of this continuum of

influence, they were effectively neutralized by the trial

court’s cautionary instruction that the arguments of coun-

sel were not evidence.

The test for determining whether the prosecu-

tor’s remarks were constitutionally impermissi-

ble is: (1) whether the prosecutor’s manifest

intent was to comment on the defendant's

silence or (2) whether the character of the

remark was such that the jury would naturally

and necessarily construe it as a comment on the

defendant's silence. United States v. Grosz, 76

F.3d 1318, 1326 (Sth Cir.), cert. denied, 519 USS.

862 (1996) (internal quotations and citations

omitted).

the defendant was equally likely to decline to testify. But,

especially if the case against the defendant appears strong, so

that an innocent defendant would be likely to testify, this

assumption is contrary to the realities of the situation, and even

more contrary to the jury’s understanding of the situation.

Thus, the jury can hardly help but ignore the instruction.”

Richard D. Friedman, Character Impeachment Evidence: Psycho-

Bayesian Analysis And A Proposed Overhaul, 38 UCLA L. Rev. 637,

667-68 (1991); see also Mitchell, __ U.S. __, 119 S.Ct. at 1316

(Scalia, J., dissenting).

22

In sharp contrast to Griffin, here there was no direct

comment on defendant's assertion of his right to confron-

tation or of his right to testify; the prosecutor limited her

remarks to pointing out the unique advantage to a defen-

dant of having the opportunity to hear all the testimony

before testifying. More significantly, however, the Second

Circuit’s suggestion, that the jury could infer from the

remarks that an innocent defendant would not have

attended the trial and would have testified first, is illogi-

cal; it defies common sense that a defendant's decision to

testify would be viewed by the jury as evidence of con-

sciousness of guilt. Simply stated, the holding of Griffin,

that comment on a defendant's refusal to testify is imper-

missible because the jury might draw an adverse infer-

ence, and the Second Circuit’s rationale that an inference

of guilt might be drawn from defendant's decision to

testify, are mutually exclusive.

As previously noted, here, unlike in Griffin, the pros-

ecutor’s closing remarks cannot be construed as a sugges-

tion that the jury treat Agard’s mere presence in the

courtroom during the entire trial as substantive evidence

of his guilt. Equally significantly, however, a reasonable

reading of the prosecutor’s comments in this case refutes

the Second Circuit majority’s interpretation that they

“invited the jury to consider the defendant's exercise of

his right to confrontation as evidence of guilt...” or that

they implied that a “truthful defendant” would have

stayed out of the courtroom or would have testified

before other evidence was presented. Rather, as the dis-

senter correctly observed, the prosecutor was merely

pointing out what was obvious to the jurors who had

likewise been present throughout the 10-day trial: “That

the defendant also was there and could hear the State’s

23

witnesses testify before he offered his own version of the

events in question” Agard, 117 F.3d. at 718 (Van Graafei-

land, J., dissenting). The prosecutor did not ask the jury

to infer guilt from defendant's mere presence during the

trial; she simply suggested that, when assessing his cred-

ibility during their deliberations, the jury could consider

the fact that the defendant's testimony was largely har-

monious with that of the victims.

Also unlike in Griffin, where defendant was com-

pletely denied the exercise of his Fifth Amendment right

by virtue of the trial court’s comments to the jury, the

prosecutor’s argument here did not abridge Agard’s right

of confrontation. He was present throughout the trial,

cross-examined prosecution witnesses and, in general,

was permitted to effectuate all components of the right.

Since the reliability of prosecution witnesses was tested

before the jury, defendant was afforded the full benefit of

the right to confrontation. While the Second Circuit

apparently sought to protect “the opportunity of a defen-

dant to fabricate or conform testimony without comment,

and the opportunity granted by the Fifth and Sixth

Amendments . . . ”, (Agard, 117 F.3d at 710) no such right

exists. In a criminal trial, both sides are entitled to fair-

ness; constitutional rights designed as shields against

governmental abuses should not be permitted to provide

a defendant with an undue advantage over the prosecu-

tion in the adversarial process.

24

4. Additional defects in the Second Circuit's

analysis contributing to its erroneous deci-

sion.

The Second Circuit incorrectly asserted that Agard

did not have an opportunity to respond to the prosecu-

tor’s comments. “ew York courts have broad discretion

to permit a deivindant to reopen his case after resting.

People v. Olsen, 34 N.Y.2d 349, 357 N.Y.S.2d 487, 313

N.E.2d 782 (1974). Here, defense counsel sought to

reopen neither his case (People v. Ruine,___. A.D. __, 685

N.Y.S.2d 47 [1st Dep’t 1999]; see, People v. Bartolomeo, 126

A.D.2d 375, 513 N.Y.S.2d 981 [2nd Dep’t 1987]), nor his

summation (see, People v. Gonzalez, 68 N.Y.2d 424, 431, 590

N.Y.S.2d 795, 502 N.E.2d 583 [1986]) to counter the

allegedly prejudicial prosecutorial assertion. In any case,

respondent clearly anticipated the argument by raising

the issue first.

Nor did the prosecutor’s argument belatedly inject

innuendo concerning bias or credibility into the case.

The specter of fabrication pervaded the trial

from its opening day. Winder testified that

Agard committed anal sodomy on her; Agard

said that he did not. One of them was not telling

the truth. Agard, 117 F.3d at 720 (Van Graafei-

land, J., dissenting).

The Second Circuit also erred in requiring an eviden-

tiary showing for the prosecutor’s remarks; there is sim-

ply no basis in this Court’s jurisprudence for requiring

such a predicate. It underestimates the common sense of

the jury to presume that they failed to grasp the obvious

fact that, unlike other witnesses, defendant was present

throughout the trial and testified last, and that they were

simply being asked to consider these factors in assessing

witness credibility.

25

A defendant who testifies on his own behalf occupies

the same position as any other witness at trial. Brown v.

United States, 356 U.S. 148, 154-55 (1958). Permitting the

prosecutor to ask the jury to consider defendant's pres-

ence in the courtroom in assessing his credibility may,

like any other method of impeachment, impose a limited

“cost” on the defendant's decision to testify. But, if the

“primary object” of the Confrontation Clause is the

search for the truth (Douglas v. Alabama, 380 U.S. 415,

418-19 [1965]), then permitting prosecutorial comment on

what is, after all, patent to the jury, serves the significant

countervailing State interest directly related to a crucial

aspect of the truth-seeking process — the ability of the fact

finder to fairly assess the credibility of the witnesses most

obviously interested in the outcome of the case.

When a defendant subjects himself to cross-examina-

tion, one aspect of the credibility issue is whether his

version of events has been fabricated. Asking a jury to

consider whether that testimony was tailored to that of

the other witnesses is a proper inquiry. The constitutional

right of a defendant to be present at trial and to confront

witnesses should not be extended to embrace a “right to

be insulated from suspicion of manufacturing an exculpa-

tory story consistent with the available facts.” State v.

Smith, 82 Wash. App. 327, 917 P.2d 1108, 1112

(Wash.App.Div. 1996).

B. Defense counsel’s summation “invited” the

prosecutor’s remarks.

In his summation defense counsel characterized the

complainant's allegations as fabrications, argued that

Agard’s testimony was consistent with that of his

26

accusers, and suggested that the jury compare the cred-

ibility of Agard and the prosecution witnesses. These

comments clearly invited the prosecutor’s comments,

which did no more than “right the scales.” United States v.

Young, 470 U.S. 1, 11 (1985).

The circumstances of this case are analogous to those

in United States v. Robinson, 485 U.S. 25 (1988). In Robin-

son, the prosecutor noted in rebuttal summation that the

defendant, who had not testified, “could have taken the

stand and explained [his version of events] to you.” Id. at

26. This Court agreed with the government's contention

that, although “direct,” the prosecutor’s comment was

responsive to defense counsel’s concluding arguments.

The Court emphasized that both sides in a criminal trial

are entitled to an “opportunity to meet fairly the evidence

and arguments of one another.” Id. at 869 (citing United

States v. Nobles, 422 U.S. 225 [1975]). Based on its review

of the challenged prosecutorial comment in context, this

Court found that it did not warrant the application of the

“broad dicta in Griffin” to the facts of Robinson:

It is one thing to hold, as we did in Griffin, that

the prosecutor may not treat a defendant's exer-

cise of his right to remain silent at trial as sub-

stantive evidence of guilt; it is quite another to

urge ... that the same reasoning would prohibit

the prosecutor from fairly responding to an

argument of the defendant by adverting to that

silence. There may be some ‘cost’ to the defen-

dant in having remained silent in each situation,

but we decline to expand Griffin to preclude a

fair response by the prosecutor in situations

such as the present one. Id., at 33 (emphasis

supplied).

27

C. Under the narrow standard of federal habeas

review of a claim of prosecutorial misconduct

the comments had no substantial and injurious

effect.

Generally, a criminal conviction “is not to be lightly

overturned on the basis of a prosecutor's comments

standing alone” in an otherwise fair proceeding. United

States v. Young, 470 U.S. 1, 11 (1985) (prosecutor’s

improper remarks expressing his personal belief that the

defendant was guilty did not constitute reversible error).

The standard of habeas review is considerably nar-

rower than it is on direct appeal. A federal habeas court's

scope of review is “the narrow one of due process, and

not the broad power that [it] would possess in regard to

[its] own trial court.” Donnelly v. DeChristofaro, 416 U.S.

637, 642 (1974). “Federal habeas challenges to state con-

victions entail greater finality problems and special com-

ity concerns . . . [T]he burden of justifying federal habeas

relief for state prisoners is ‘greater than the showing

required to establish plain error on direct appeal.’ ” Engle

v. Isaac, 456 U.S. 107, 135 (1982).

The role of Federal habeas proceedings, although

important, is a secondary and limited one in comparison

to direct review. “Federal courts are not forums in which

to re-litigate state trials.” Brecht v. Abrahamson, 507 U.S.

619, 623 (1993), citing Barefoot v. Estelle, 463 U.S. 880

(1983). Thus, “error that may justify reversal on direct

appeal will not necessarily support a collateral attack on

a final judgment” Id., at 1720, citing United States v. Frady,

456 U.S. 152, 165 (1982). These distinctions arise from the

“State’s interests in the finality of convictions .. . ;”

principles of comity and federalism; and the view that

28

“[ljiberal allowance of the writ . . . degrades the promi-

nence of the trial itself’ and encourages habeas peti-

tioners to re-litigate their claims on collateral review. Id.

at 635.

Prosecutors must be given “reasonable latitude to

fashion closing arguments” and to argue reasonable infer-

ences based on the evidence. United States v. Necoechea,

986 F.2d 1273 (9th Cir. 1993). Thus, they are allowed to

deal “hard blows,” although not “foul” ones. United

States v. Gwaltney, 790 F.2d 1378 (9th Cir. 1986), cert.

denied, 479 U.S. 1104 (1987); People v. Ashwal, 39 N.Y.2d

105, 109, 383 N.Y.S.2d 204, 347 N.E.2d 564 (1976). Addi-

tionally, the prosecutor's comments must be viewed

against the background of defense counsel's closing argu-

ment, can only be evaluated in their relationship to that

summation and arguments advanced by the latter may be

responded to by the former. United States v. Matthews, 20

F.3d 538 (2nd Cir. 1994); United States v. Pelullo, 964 F.2d

193 (3rd Cir. 1992).

A prosecutor’s remarks during summation warrant

the granting of a writ of habeas corpus only if the defen-

dant establishes that the comments had a “substantial

and injurious effect or influence on the jury’s verdict.”

Bentley v. Scully, 41 F.3d 818, 824 (2nd Cir. 1994). In

assessing whether a habeas petitioner has satisfied this

showing, the court must also consider any curative mea-

sures the trial court may have taken to prevent prejudice,

and whether the defendant’s conviction was certain

absent the prejudicial conduct. Gonzalez v. Sullivan, 934

F.2d 419, 424 (2nd Cir. 1991).

This trial was eminently fair and the evidence was

strong enough to prompt the state appellate court to

characterize it as overwhelming:

EE ee — a -

29

The complainant testified that on May 6, 1990,

the defendant held a gun to her head, threat-

ened to kill her, and beat her in the course of

forcing her to have anal intercourse by ‘forcible

compulsion.’ Later at the emergency room of a

hospital, the victim was found to have bruises

on her arms and legs, a cut lip, and a black eye

so seriously battered that she had hemorrhages

in it four to five weeks later, as well as floating

spots up to the day of trial. In addition, the

defendant admitted to owning a gun, which was

recovered by the police. People v. Agard, 119

A.D.2d 401, 402, 609 N.Y.S.2d 239 (2nd Dep’t

1993).

Although this assessment is not binding on a federal

habeas court, it is certainly entitled to a high degree of

deference.

The prosecutor’s remarks constituted a fair response

to defense counsel's summation and suggested reason-

able, logical and permissible inferences for the jury's

consideration. Significantly, the trial court explicitly

instructed the jury to consider only the evidence and

emphasized that counsel’s summations did not constitute

evidence. Under the limited scope of collateral habeas

review the challenged remarks did not cause substantial

prejudice to respondent and did not undermine confi-

dence in the certainty of conviction in their absence. In

the real world of criminal jury trials, the effect of the

challenged comments was de minimis. See United States v.

Cruz, 797 F.2d 90 (2nd Cir. 1986). Because it can fairly be

said that respondent's conviction resulted from the jury’s

assessment of the evidence and not from improper argu-

ment by the prosecutor, the order of the Second Circuit

should be reversed.

30

CONCLUSION

AMICUS CURIAE - THE NEW YORK STATE DIS-

TRICT ATTORNEYS ASSOCIATION - REQUEST

THAT THE DECISION OF THE CIRCUIT COURT IN

AGARD I AND AGARD II BE REVERSED FOR THE

REASON STATED HEREIN.

DATED: Riverhead, New York

June 7, 1999

Respectfully submitted,

Wittiam J. Frrzparrick

President, New York State

District Attorneys Association

Onondaga County District Attorney’s Office

421 Montgomery Street

Civic Center, 12th Floor

Syracuse, New York 13202

Steven A. Hovani

Micwuaet J. Miccer

Assistant District Attorneys

Suffolk County District Attorney’s Office

200 Center Drive

Riverhead, New York 11901

(516) 852-2500