# Reply Brief Petitioner — North Carolina Natural Gas Corp. v. McJunkin Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0469%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief Petitioner - **Published:** January 1, 1962 - **Citation:** 371 U.S. 830 ## Text = 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0469%3A6. Public record. Not legal advice.