Reply Brief Petitioner — North Carolina Natural Gas Corp. v. McJunkin Corp.

= etek

« i. i “Cc j@eTr 4. >

IN THE _J0HN Fs

Supreme Court of the Wuited States

Octorrn Treas, 1962

KaLMas Green nin and Fraxk Proctor, Petitioners,

- ; ‘ \

Uxireh States or AMERICA, Rexpondeut.-

On CAS Vacate and Remand oe

PETITIONERS’ REPLY TO MEMORANDUM IN

OPPOSITION.

Dip ey Yorpickr

Whitney Building

° New Orleans, Louisiana

Evcene GRessMan phate

1730 K Street, N.W.

Washington 6, D.C. ,-

Counsel for Petitioner

Kalman Greenhill

7 Leox D. Heserr, Jr. ;

+40 O11 & Gas emer

New Orleans 12, Louisiana

Counsel for Petitioner -

- . Frank Proctor -

August.24, 1962. ~ | ,

= —_— 7

Parss or Breon S Aoams, Wasni~cton. DC

ms

fr)

IN THE

Supreme Court of the Huited States

OctosER TERM, 19u2,

No. 145

KALMAN GREENHILL and Frank Proctor, Petitioners,

on cy ip oniekas ¥-

Unitep States 6r America, Respondent.

.On Motion to Vacate and Remand

- PETITIONERS’ REPLY TO MEMORANDUM IN

OPPOSITION

In response to the Government’s memorandum in

opposition to the motion to vacate and remand this |

cause, petitioners state as follows:

1, The total failure of the court reporter to obey the

command of the Court Reporter Act by recording the

arguments to the jury is conceded. Indeed, the addi-

tional fact revealed in the supplemental affidavit of

9°

the reporter (Govt. Mem.,. hie. A) inderecores that

failure; the reporter there states that he was in fact

_ inxthe courtroom during * arguments, vet failed to

record them. No exeus’ re ation for this failure

is offered by: the Government. -, 3

Moreover, the Government presents no effective

-refutation of the petitioners ;* sworn. allegations (M6-:

tion, pp. 3a-da) that the prosecutor’s summation to the —

jury did contain. numerous and cumulative inflamma-

tory statements generating an atmosphere of. geo-

“graphical hostility “toward petitioners: So plainly

erroneous is this misconduct by the prosecution that

it cannot be readily dismissed by any of the technical.

or procedural objections now urged by the Government.

The inability to recreate the summation in.its original.

and complete form, an jnability in 10‘way attributable

to petitioners; necessitates the relief suggested by peti-

_tioners by their motion herein.

The fact that the reporter recor. led no objections

made by either counsel is irrelevant. If no objections - °

‘were made to the prosecutor’s remarks, the plain error

doctrine of Rule: 52(b), Fed. Rules Cr. Proe., comes

into’ operation, 4 ‘ doctrine which presupposes — the

absence of objections at the ‘time of trial.’ But to de-

termine whether thére was plain error in the sumnia-

tien, a complete transcript of that summation is essen-

. tial, especially where’ the prejudicial remarks are

cumulative and spread over the entire summation. Tlie

amnwarranted failure of baa reporter to record such a

‘The (ioverriment concedes (Mem., p. 3) that the diese mis-

conduct of government ‘counsel is ground for reversal ‘‘if so

vrossly prejudice ‘ial as to amount to plain error under‘ Rule 52,

F. R: Crim.'P.’’

.

aA .

?

e

o , 3

summation wholly frustrates the appeal- process and

the capacity of an appellate court: to note or correct |

- plair errors.

Obviously, the whole purpose of the Court Re porter

Act isto insure a comple te transer ipt of the trial pro--

ceedings so.as to give the litigants and the appellate

courts the essential basis for discovering and adjudi-

cating possible errors... Without each and every ele-

.- ment of those proceedings being available in tran-

seribed ‘form, basic rights of defendants can become

irretrievably lost. And the fairness of the federal

goal process disappears.

. The Government would have this Court ignore the:

ete violation of the Court Reporter Act by reason. -

of the failure of the petitioners to complain of that

violation in. the courts below. But there is no indica-

tion that the petitioners: or their counsel were aware °

that the court reporter, who was: present at the time

of oral- ‘summations, was not recording such arguments.

More significantly, a defect in the record which frus-

trates the appeal process is so fundamental in nature

that it can becraised at any point and appropriate cor-

rective action taken.

The recent decision of the Fourth C ‘irenit in United

States v. Taylor, 303 F. 2d 165, 169 (C.A. 4), demon-

strate wi this ——. There the failure of the court

3 2 Even if an dite to the stimmation ‘had been made and

denied, transcribing merely the objection and the ruling thereon

would have furnished little. or to light on what the prosecutor

actually said. Only a verbatim transcript of all -the remarks,

taken down as they are uttered, permits a trustworthy Judgment

as to possible prejudice, Moreover, where the prejudicial. remarks -

are’Cumnlative, as here alleged, it is essential that. the complete

summation be available so as to judge its total thrust and impact.

= @ 4

ber

4

reporter to record a significant portion of the: trial

court proceedings made it impossible to resolve an issue

raised in a collateral proceeding under 28 U.S.C

§ 9255. Recognizing that this defect in the -record |

. Vitally affected the defendant's right to pursue -his

§ 2955, remedy, the Fourth Circuit took corrective av-—

tion in light of that defee t— ven though the. violation

of the Court Reporter Act had not previously been | -

‘raised at any point in the trial court. or on direct ap-

peal. See also Poole vy. United States, 250 -F. 2d 396, .

399 (App. D.C.).- Plainly, then, such a matter can be

raised for the first time on a direct appeal as is here |

involved. aa

In this ¢ase, where the failure to record the summa-

tion makes impossible’ a resolution/ of the basie issue -

of hostility at the trial, the decision of the Fifth Circuit

in ‘Stephens v. United States, 289 F.2d 308 (C.A. 5),

points the way to the appropriate corrective. action.

And in the Stephens case itself, the defect was raised

and corrective action. taken at the appellate level, the

matter not having been raised before the trial court.

3. The Government’s reference (Mem., p: 4) to what

it deseribes as ‘the overwhelming evidence against |

. petitioners summarized in the government’s brief in

opposition’’ cannot serve as an excuse for the reporter's

failure to record the summation to the jury. Nor ean

' it east any light on whether that summation amounted

to plain error under Rule 52. Prejudicial error of

this nature is a factor having no necessary relation to

the guilt or innocence of the defendant. Fundamental

concepts of fair criminal justice require that courts

e

B)

: optiier such an error whenever it appears. Berger v.

* United States, 295 U:S. 78. ae

- Respectfully “submitted,

DupLey YOEDICKE

Whitney Building

New Orleans, Louisiana

EUGENE GRESSMAN

1730 K Street, N.W.

Washington 6, D.C. .

Counsel for Petitioner

Kalman Greenhill

Leon D. Husert, JR.

540 Oil & Gas Building

New Orleans 12, Louisiana

_ Counsel for Petitioner

. Frank Proctor

¢

August 24, 1962.

ij