Petition for Writ of Certiorari — Fritzie v. United States

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84-55 FILED

WIS sup Set Ute, wende

OCT 2 1984

No. 83-5315 en

: TLERK

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term 1984

EDWARD JAMES FRITZIE,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

STEPHEN V. WILSON

HOCHMAN, SALKIN & DeROY

A Professional Corporation

7th Floor, West Tower

9100 Wilshire Boulevard

Beverly Hills, California 90212

(213) 273-1181

Counsel for the Petitioner

JORDAN P. WEISS

7th Floor, West Tower

9100 Wilshire Boulevard

Beverly Hills, California 90212

Of Counsel

lg \

QUESTION PRESENTED

Did the District Court unconstitution-

ally create a “psychological unavailability"

exception to Petitioner's Sixth Amendment

right to confront the witnesses against

him, when, without hearing evidence, it

permitted the deposition of a critical

witness to be introduced at trial in lieu

of requiring the witness's personal

appearance?

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TOPICAL INDEX

Page

Question Presented i

Table of Authorities iv

OPINION BELOW 2

JURISDICTION 2

CONSTITUTIONAL PROVISIONS 2

STATEMENT OF THE CASE 3

REASONS FOR GRANTING THE WRIT 5

THERE IS AN URGENT NEED FOR THE

COURT TO CLARIFY THE PRINCIPLES

INVOLVED IN THIS CASE 5

A. PSYCHOLOGICAL UNAVAIiL-

ABILITY: THE DECISION

BELOW IS FUNDAMENTALLY

WRONG 5

B. THE DECISION BELOW CONFLICTS

WITH THE DECISION OF THE DIS-

TRICT OF COLUMBIA COURT OF

APPEAL IN THE CASE OF WARREN

V. UNITED STATES, AND SANC-

TIONS PROCEDURES OPPOSITE

THOSE APPROVED BY THE UNITED

STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT AND THE

NEW YORK COURT OF APPEALS. 7

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C. THIS CASE PRESENTS THE COURT AN

OPPORTUNITY TO SET FORTH GUIDE-

LINES TO GOVERN THE TAKING OF

TESTIMONY IN A SPATE OF CHILD

MOLESTATION PROSECUTIONS CUR-

RENTLY SWEEPING THE COUNTRY. 18

CONCLUSION 21

APPENDICES

ill.

ar ne

TABLE OF AUTHORITIES

Cases Page

Barber v. Page,

390 U.S. 719 (1968) 6, 17

California v. Green,

399 U.S. 149 (1970) 5, 6, 16

Government of the Virgin Islands

v. Aquino,

378 F.2d 540 (1967) 8

Mattox v. United States,

156 U.S. 237 (1895) 15

Motes v. United States,

178 U.S. 458 (1900) &

Ohio v. Roberts,

448 U.S. 56 (1980) 5

Parker v. Gladden,

385 U.S. 363 (1966) 16

People v. Gomez,

26 Cal.App.3d 225,

103 Cal.Rptr. 80 (1972) 8, 13

People v. Lombardi,

39 A.D.2d 700, 332 N.Y.S.2a

749 (1972), aff'd 33 N.Y.S.2d

658, 348 N.Y.S.2d 980, 303

N.E.2d 705 (1973), cert. 7, 8

} denied, 416 U.S. 906 (1974) 13, 14

United States v. Benfield,

593 F.2d 815 (8th Cir. 1979) 15

iv.

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Warren v. United States,

436 A.2d 821 (D.C. 1981) 7. 9 Ad

12, 13

Constitution

United States Constitution

Sixth Amendment i, 2. S- 48

Federal Rules and Statutes

Federal Rules of Criminal Procedure,

Rule 15 4

Federal Rules of Evidence,

Section 804(a) 8

Section 804(a)(4) 15

Title 18, United States Code,

Sections 371 and 2315 3

Texts and Articles

V. Wigmore on Evidence, 3d ed. (1940)

Section 1395 17

Associated Press, August 22, 1984

(Oklahoma): Agency Shuts Down Over

Sex Assault Charge 19, 20

The National Law Journal,

September 10, 1984: Timnick, Legal

Tangle, Complex Issues Prolong Pre-

limirary Phase of Mass Child-Abuse

Case in Calif. Court 19

New York Times, August 25, 1984:

Miami Couple Charged with Abusing

Children

United Press International:

August 9, 1984 (South Carolina):

Funds Sought for Molestation

Victims

August 10, 1984

(Georgia):

Couple Charged with Child

Molestation

August 14, 1984

Petition Drive Targets Child

Molesters

August 17, 1984

Daycare Center Employee Charged

(Virginia):

(Maryland):

with Sexual Abuse of Pupil

August 22, 1984

College Administrator and Wife

Free on Bail After Molestation

Charge

August 23, 1984

Grand Jury Indicts in Children's

Theater Probe

August 31, 1984

(New York):

(Minnesota):

(Indiana):

Minister Sentenced in

Molesting Charge

WS.

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NO. 83-5315

IN THE

SUPREME COURT

OF THE UNITED STATES

EDWARD JAMES FRITZIE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

The petitioner, EDWARD JAMES FRITZIE,

respectfully prays that a writ of certi-

Orari issue to review the judgment and

Opinion of the United States Court of

Appeals for the Eleventh Circuit, entered

in this proceeding on May l, 1984.

OPINICN BELOW

The opinion of the Court »2f Appeals is

reproduced in the Appendix hereto. (App. A).

JURISDICTION

The judgment of the Court of Appeals

for the Eleventh Circuit was entered on

May 1, 1984. A timely petition for panel

rehearing and suggestion for rehearing in

banc was denied on August 14, 1984, by

service of Order dated June 4, 1984. (App.

B, pp. 9-12). The judgment was issued as

mandate on August 10, 1984, withdrawn and

reissued as mandate on September 13, 1984.

(App. B, p. 10).

CONSTITUTIONAL PROVISIONS

The Sixth Amendment to the Constitu-

tion of the United States:

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 ascer-

tained 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

Defendant was indicted in the District

Court of the Southern District of Florida

for conspiracy (18 U.S.C. §371) and sale

or receipt of stolen goods (18 U.S.C. §2315).

On December 7, 1982, the government moved

for authorization to take a deposition of

Richard B. Flagg (App. C, p. 15), and de-

fense counsel objected and requested an

evidentiary hearing to determine whether

the extraordinary relief of ordering a

deposition in a criminal trial was war-

ranted (App. C, p. 26). Said moticn was

denied.

The only admissible evidence of the

art theft was the testimony of the alleged

victim, Richard Flagg, who did not appear

at trial but his deposition testimony

(pursuant to Rule 15, Fed. R. Crim. P.)

was read to the jury. The professed ex-

planation of the Rule 15 deposition was

the witness's “state of extreme depression"

(App. C, p. 17). the government's motion

contained only a one paragraph letter from

the witness's doctor (psychoanalyst) which

provided no medical explanation that an ap-

pearance at trial would be deleterious to the

witness's health (App. C, p. 19). No further

showing of unavailability was required of the

government.

REASONS FOR GRANTING THE WRIT

THERE IS AN URGENT NEED FOR THE

COURT TO CLARIFY THE PRINCIPLES

INVOLVED IN THIS CASE.

A. PSYCHOLOGICAL UNAVAIL-

ABILITY: THE DECISION

BELOW IS FUNDAMENTALLY

WRONG

This court has not sought to map out

a theory of the confrontation clause that

would determine the validity of all hear-

say (exceptions), California v. Green, 399

U.S. 149, 162 (1970), but, on the other

hand, constitutional limitations were set

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

where the Court said that the test\of

Sixth Amendment unavailability was not met

"unless the prosecutorial authorities made

a good faith effort to obtain [the wit-

ness's] presence at trial." Id. at 74,

(emphasis in original) (quoting Barber v.

Page, 390 U.S. 719, 724-25 (1968).

This rule applies to all cases of wit-

ness unavailability, but is moderated by

the recognition that “[t]he lengths to

which the prosecution must go to produce

a witness...is a question of reasonableness."

Id. (quoting from Justice Harlan's concurr-

ing opinion in California v. Green, 399

U.S. 149, 189, n.22 (1970). Therefore, the

constitutional question appears to be at

what point, if any, it is no longer reason-

able to require the government to produce

witnesses at the risk of their psychologicai

health. To pose the question, underscores

the inherent impossibility of positing an

answer to a particular set of facts with-

out a predicate evidentiary inquiry. The

decision at trial, which permeates the de-

Cision below, that no evidentiary inquiry

was necessary prior to determining witness

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unavailability, was, and is, fundamentally

wrong.

B. THE DECISION BELOW CONFLICTS

WITH THE DECISION OF THE DIS-

TRICT OF COLUMBIA COURT OF

APPEAL IN THE CASE OF WARREN

V. UNITED STATES, AND SANC-

TIONS PROCEDURES OPPOSITE

THOSE APPROVED BY THE UNITED

STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT AND THE

NEW YORK COURT OF APPEALS.

Tne court recognized a type of witness

unavailability which, to Petitioner's

Knowledge, has been expressly sanctioned

in only three cases, one from the District

of Columbia, one from California, and the

other from New York. The courts in all

three cases did so only after a hearing

at which psychiatric testimony has been

presented. Warren v. United States, 436

A.2d 821 (D.C. 1981); People v. Lombardi,

39 A.D.2d 700, 701, 332 N.Y.S.2d 749, 750-

S51 (1972), aff'd., 33 N.Y.2d 658, 348

hada sail

N.Y.S.2d 980, 303 N.E.2d 705 (1973), cert.

denied, 416 U.S. 906 (1974); People v.

Gomez, 26 Cal.App.3d 225, 103 Cal.Rptr. 80,

83-84 (1972). The requirement that such

unavailability be shown exists under the

constitutional requirement of confrontation

and equally so as a rule of evidence,

Since the declarant's testimony ordinarily

is inadmissible as hearsay and can be

admitted at the subsequent trial only out

of necessity as an exception to the hear-

say rule. See e.g., Motes v. United States,

178 U.S. 458 (1900); Government of Virgin

Islands v. Aquino, 378 F.2d 540 (1967).

The Courts which have recognized the "psycho-

logical unavailability" exception to the Con-

frontation requirement have done so by

interpreting codified rules of evidence.

Thus, the court below, by reference to

Fed.R.Evid. 804(a), defined unavailability

as "unable to be present or to testify at

the hearing because of death or then exist-

ing or mental illness or infirmity.”

The Constitution itself makes no pro-

vision for exceptions to the right of Con-

frontation before the trier of the facts.

The Appellant in Warren v. United States

had been found guilty of separate incidents

of kidnapping and sexual assault. His con-

victions were reversed because of prejudi-

cial misjoinder, and a re-trial was ordered.

The government moved pre-trial to introduce

the transcripts of the prior trial testi-

mony of appellant's victims, Marilyn Reed

and Linda Jenkins, both of whom had eet

fered some degree of psychic injury. The

court cautiously extended the traditional

definition of witness unavailability to

include "psychological unavailability” of

the type demonstrated in the case of

Marilyn Reed, but to exclude the lesser de-

gree of psychological infirmity demonstrated

by Linda Jenkins, after considering the

limits of the Sixth Amendment's Confronta-

tion Clause and of the Hearsay Exception

for prior recorded testimony. Evaluating

the testimony of two psychiatrists, one

of whom he personally appointed to obtain

an independent, second opinion, the trial

court judge excused Reed from testifying

because he found that Reed's testifying

“would be likely to lead to a severe psy-

chosis, even possible suicide" and would

"be as likely to be a grave threat to her

health and life as to compel the testimony

of the individual with an acute heart

condition."

It is noteworthy that the court re-

quired the appointment of a second inde-

pendent psychiatrist to conduct an evalua-

tion of Reed and Jenkins. Prior to the

appointment of the second psychiatrist,

Reed's psychiatrist had testified that Reed

10.

was suffering from a severe mixed cycle

neurosis with particular emphasis on de-

pressive mood, phobic reaction and anxiety.

He further testified that her depth of de-

pression had reached suicidal levels and

that suicidal tendencies were still present,

that the effects of the violence she had

suffered and the trauma of another court

appearance would most likely shatter her

fragile adaptation to society, and possibly

lead to permanent psychological injury.

Nevertheless, the trial judge appointed

the second psychiatrist not because he

discounted the testimony of the government's

psychiatrist, but “rather because he was

sensitive to the extraordinary nature of

the government's motion and needed addi-

tional evidence to convince him that these

witnesses should not be reguired to testify.”

436 A.2d at 829. In appointing an impartial

psychiatrist, he had followed local precedent

ll.

on psychological unavailability in a case

which had required an independent psychia-

trist be appointed notwithstanding the

testimony of three other doctors who were

intimately familiar with a witness's physi-

cal and mental condition. 436 A.2d at 827.

The Warren trial court was affirmed

because the “expert testimony" relating

to Reed's mental health established that

there was both a high likelihood of tempor-

ary psychological injury, psychosis, and

a possibility of permanent psychological

injury.

The appeals court posed the following

framework against which to evaluate the

question of psychological unavailability:

l. The probability of psychological

injury as a result of testifying;

2. The degree of anticipated injury;

3. The expected duration of the

injury, and

12.

4. Whether the expected psychological

injury is substantially greater

than the reaction of the average

victim.

436 A.2d at 830.

In People v. Gomez, witness unavail-

ability under the mental “illness or in-

firmity” standard was established by the

expert testimony of two psychiatrists who

testified that the witness was “very

vulnerable to stress, had a tendency to

psycho-motor seizures which were difficult

to diagnose and treat,” and that her pre-

sent and future mental health could be

injured by testifying before the court.

Similarly, in People v. Lombardi, a

Simple majority (3:2) upheld a court find-

ing that it would endanger the witness's

health to testify again, where testimony

by the witness's psychiatrist satisfied

the court that had the witness “been

13.

required to appear and testify in person

..-her mental and physical health would

have been seriously jeopardized" and would

have resulted in a "perhaps successful

attempted suicide.” Nevertheless, two of

the Lombardi Judges would have required

appointment of an independent, impartial

psychiatrist:

But another individual's liberty

is here at stake and we must care-

fully balance the possible conse-

quences of requiring the witness

to testify against the potential

prejudice to the defendant. Be-

fore granting the prosecutor's

motion, the trial court should

have first appointed an indepen-

dent, impartial psychiatrist as

requested by defendant's counsel

Or, at the very least, examined

the witness himself in camera.

39 A.2d 703, 332 N.Y.S.2d 48

(dissenting opinion).

The dissent was of the opinion that no

satisfactory showing of unavaiiability had

been made.

The only other federal case which has

applied the mental infirmity definition of

14.

Fed. R. Evid. 804(a)(4) is United States

v. Benfield, 593 F.2d 815 (8th Cir. 1979)

where appellant's conviction was reversed

because of a violation of a Sixth Amendment

right to confront the government's witness

face-to-face. The reversal did not result

from unavailability, but, significantly

the district court had taken expert psychia-

tric testimony on the issue of witness

unavailability.

The right of confrontation provided in

the Sixth Amendment is the right to be

confronted before the trier of the facts.

As early as Mattox v. United States, 156

U.S. 237, 242-3 (1895), this court stated:

The primary object of the Constitu-

tional Provision in question was

to prevent depositions or ex parte

affidavits...being used against

the prisoner in lieu of a personal

examination and cross-examination

of the witness in which the accused

has an opportunity, not only of

testing the recollection and sift-

ing the conscience of the witness,

but of compelling him to stand

15.

face to face with the jury in order

‘that they may look at him, and

judge by his demeanor upon the

stand, and the manner in which he

gives his testimony whether he is

worthy of belief.

In Parker_v. Gladden, 385 U.S. 363

(1966), the court said:

As we said in Turner v. Louisiana,

379 U.S. 466, 472-473, 13 L.Ed.2d

424, 428, 429, 85 S.Ct. 546 (1965),

the ‘evidence developed' against

the defendant shall come from the

witness stand in a public court-

room where there is full judicial

protection of the defendant's

right of confrontation of cross-

examination and of counsel.

Confrontation affords bifurcated ad-

vantages: the first is the opportunity of

cross-examination; the second is the per-

sonal appearance of the witness. California

v. Green, 399 U.S. 149, 158 (1970). Dean

Wigmore described it and says: “the judge

and the jury are enabled to obtain the elu-

Sive and incommunicable evidence of wit-

ness's deportment while testifying and a

certaig subjective moral effect is produced

16.

upon the witness." (Emphasis in treatise)

V. Wigmore on Evidence, 3d ed., 1940,

§1395.

This case is Barber v. Page, supra,

with the single exception that instead of

the prosecution, it is the court that

failed to exercise good faith in ascertain-

ing whether the witness was available for

trial.

The Court of Appeals of the District

of Columbia considered the issue presented

by this case; its holding of "psychological

unavailability" was premised upon the testi-

mony of an independent psychiatrist ap-

pointed by the trial court. The New York

Court of Appeals considered the issue pre-

sented by this case; its holding of

“psychological unavailability” was pre-

mised upon the testimony of the witness's

psychiatrist; two dissenting judges would

have required the appointment of an

17.

independent psychiatrist. The decision be-

iow holds that a one paragraph unilluminat-

ing letter from a witness's doctor which

provides no medical explanation other than

that a witness is "substantially" depressed

is sufficient to eviscerate all of the safe-

guards that are built into the Sixth Amend-

ment's Confrontation Clause. Unquestionably,

there is a conflict of sufficient magnitude

which calls for an exercise of this Court's

power of supervision.

C. THIS CASE PRESENTS THE COURT AN

OPPORTUNITY TO SET FORTH GUIDE-

LINES TO GOVERN THE TAKING OF

TESTIMONY IN A SPATE OF CHILD

MOLESTATION PROSECUTIONS CUR-

RENTLY SWEEPING THE COUNTRY.

In recent months, the newspapers of

this country have been emblazoned with

stories detailing countless accusations

that men and women in every walk of life

have taken advantage of young children with

18.

tender sensitivities. See e.g., Timnick,

Legal Tangle, Complex Issues Prolong Pre-

liminary Phase of Mass Child-Abuse case

in Calif. Court, The National Law Journal,

September 10, 1984 (“Defense lawyers con-

tend those accused of crimes have a right

to confront their accusers" ....[{despite

psychiatric testimony]...."“about the psy-

chological effect of testifying in court

on child abuse victims...."). The issue

of the “psychological unavailability” of

these young children to testify at trial

is certain to arise, in one context or

another, in every single one of these

cases. Unless this court clarifies the

applicable principles, innocent children

will at worst be subjected to traumatic

courtroom experiences, and at best be sub-

jected to traumatic pre-trial battles .2/

1/ see also, Agency Shuts Down Over Sex

Assault Charge, Associated Press, August

(cont. )

19.

This case presents an arena free from the

emotion-charged environment of the child-

molestation cases.

i/ (cont.)

22, 1384 (Oklahoma); College Administrator

and Wife Free on Bail After Molestation

Charge, United Press International, August

22, tsa (New York); Couple Charged with

Child Molestation, United Press interna-

tional, August 10, 1984 (Georgia); Daycare

Center loyee Charged with Sexual use

of Pupil, United Press International,

August 17, 1984 (Maryland); Funds Sought

for Molestation Victims, United Press

International, August 9, 1984 (South

Carolina); Grand Jury Indicts in Children's

Heater Probe, United Press International,

August 23, 1984 (Minnesota); Miami Couple

Charged with Abusing Children, New York

Times, August 25, 1984; Minister Sentenced

in Mclesting Case, United Press Interna-

tional, August 31, 1984 (Indiana); Petition

Drive Targets Child Molesters, United Press

International, August 14, 1984 (Virginia).

20.

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CONCLUSION

It is therefore respectfully suggested

that the Petition for a Writ of Certiorari

should be granted and the decision of the

Court below be reversed.

Respectfully submitted

STEPHEN V. WILSON

Counsel for the

Petitioner

JORDAN P. WEISS

OF COUNSEL

Dated:

21.

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_—— ee ee ee ee ee eee ee eee ee eee ee ee ee ee ee ee ee

No. 83-5315

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDWARD JAMES FRITZIE,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Florida

(May 1, 1984)

Before HATCHETT, ANDERSON and CLARK,

Circuit Judges.

PER CURIAM:

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Appellant Edward Fritzie was convicted

in the United States District Court for

the Southern District of Florida for con-

spiracy and the sale or receipt of stolen

paintings. 18 U.S.C.A. §§371, 2315 (West

1970). On appeal, he argues that (1) the

introduction of deposition testimony of

the burglary victim pursuant to Fed.R.

Crim.P. 15 was an abuse of the trial court's

discretion in violation of his Sixth Amend-

ment right to confront witnesses; and (2)

comments by the prosecutor in closing

argument require reversal.

Concerning the deposition testimony,

Fed.R.Crim.P. 15 allows the use of deposi-

tions at trial if the witness is unavail-

able.+ The court did not abuse its discre-

tion by ruling that deposition was the

appropriate means of obtaining the testi-

mony of Milwaukee resident Richard Flagg,

the elderly and infirm man from whom the

paintings were stolen. Flagg's doctor ad-

vised that travel to Florida for trial was

not possible due to his age and his state

of extreme depression. When his condition

did not improve after the court granted

one continuance, the Rule 15 motion was

granted. Flagg's absence at trial did not

violate Fritzie's right to confront wit-

nesses, because Fritzie confronted the

witnesses via cross-examination at the

deposition hearing. See California v. Green,

399 U.S. 149, 165 (1970); United States v.

Tunnell, 667 F.2d 1182, 1187 (Sth Cir.

1982); United States v. Ricketson, 498 F.2d

367 (7th Cir. 1974).

“"Unavailability," as defined by Fed.R.

Evid. 804(a), includes a situation in which

the declarant "is unable to be present or

to testify at the hearing because of death

or then existing physical or mental ill-

ness or infirmity.”

‘ The right: to cross-examine the deponent

was sufficient here to avoid violation of

the Confrontation Clause, but it might not

be in a case where the witness was not

shown to be unavailable. Barber v. Page,

390 U.S. 719, 726 (1968).

Appellant attacks various comments

made by the prosecutor in his closing argu-

ment. First, he claims that the prosecutor

improperly drew attention to Fritzie's

failure to take the stand in his own de-

fense. Having examined the record, we

conclude that the comments were not such

that “the prosecutor's manifest intention

was to comment upon the defendant's failvre

to testify . . . or the remark was such

that the jury would naturally and neces-

sarily take it to be a comment on the

failure of the defendant to testify.”

Williams v. Wainwright, 673 F.2d 1182,

1184 (llth Cir. 1982).

Appellant also complains thet the

Prosecutor stated: “as jurors here in

South Florida, we need not be told the

role of crime plays in our lives.” This

brief statement appeared in the context

of the prosecutor's attempt to rebut a

defense suggestion that the undercover

agent had initiated the crime. The prose-

cutor was indicating the justification

and need for undercover activity. In con-

text, the remark was not inflammatory so

as to prejudice substantial rights of the

defendant. Unitsed States v. Dorr, 636

F.2d 117, 120 (Sth Cir. Feb. 6, 1981).°