Opposition Brief — Connecticut v. Cassidy
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Supreme Court, U.S.
’>i LE BS
JUN F 1996
CLERK
No. 95-1820
in The
Supreme Court Of The United States
October Term, 1995
STATE OF CONNECTICUT,
Petitioner,
Vv.
STEPHEN CASSIDY,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF CONNECTICUT
BRIEF OF RESPONDENT IN OPPOSITION
NEAL CONE
Assistant Public Defender
G. DOUGLAS NASH*
Public Defender
Office of Chief Public Defender
121 Elm Street
New Haven, CT 06510
(203) 789-7477
*Counsel of Record
QUESTIONS PRESENTED
Whether a prosecutor is free to urge the jury to conclude that a
defendant is lying in his testimony solely because he has been present
throughout the trial and thus heard all the other witnesses testify, or
whether such argument violates on federal constitutional grounds that
defendant’s Sixth Amendment right to face to face confrontation?
II. If such arguments do not violate the Sixth Amendment, whether in
those jurisdictions which require a defendant to be present throughout
trial, such as by statute or court rule of criminal procedure, funda-
mental fairness prohibits such arguments or requires remedial measures
when they are made?
QUESTIONS PRESENTED
TABLE OF CONTENTS
TABLE OF AUTHORITIES
RESPONSE TO PETITION FOR CERTIORARI
OPINION BELOW .
JURISDICTION
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
STATEMENT OF THE CASE .
REASONS FOR DENYING THE PETITION
I. THE DECISION BELOW RESTS ON ADEQUATE AND
INDEPENDENT STATE CONSTITUTIONAL LAW GROUNDS
A. The adequacy of the state law ground is
established by the Connecticut Supreme
Court clearly holding there was a violation
of the confrontation clauses of both the
federal and Connecticut constitutions
B. The holding of the Connecticut Supreme Court
that the state constitution had been violated
was a decision made independently of its
decision regarding the federal constitution .
, The Connecticut Supreme Court does not find
that a violation of the confrontation clause
of the Sixth Amendment automatically means
that the confrontation clause of Article I,
§ 8 of the Connecticut constitution has also
bee Wee eeee ig 626. fe eR oe ee 8 wo ee
2. Since the practice of the Connecticut Supreme
Court is to refuse to consider a state
constitutional claim which it finds not to
have been independently analyzed by a
defendant, the clear holding of that court
that this defendant suffered an infringement
of his state constitutional right of
confrontation shows that the holding reflects
independent state law grounds ......
ii
3. The Connecticut Supreme Court has clearly
stated that when it finds the Connecticut
constitution to have been violated, and
in doing so has referred to federal cases,
the federal cases are used as persuasive
Mien Gat ot 6 ew 6 we eee 0 ee ee te
4. Even a cursory look at the opinion of the
Connecticut Supreme Court in this case shows
that references to federal precedent were
used in stating general propositions of law
or in illustrating analogous situations, not
in deciding that an interpretation of federal
precedent controlled the state constitutional
OGM Obs ee 8 SOR Lew eB oe ote. a2
II. THE FEDERAL CONSTITUTIONAL CLAIM WAS CORRECTLY DECIDED 14
A. The Connecticut Supreme Court’s decision was
neither unprecedented nor unwarranted ...... 14
» © This case involves urging jurors to draw an
adverse inference solely from a defendant’s
exercise of one of his constitutional rights,
which is patently unconstitutional ..... 14
Y The federal constitutional right infringed
upon was one this Court sees as ensuring the
integrity of the fact finding process, which
was properly considered in finding an
impermissible ws Ne Bd of that aay in
Chie CANO. 6.5 « s ‘ eve? 2S
we Almost every jurist who has considered similar
comments has found them to be constitutionally
infirm, so the decision in the present case
is hardiy *unprecedented" ....+«+«-++see
B. Even if, as petitioner asserts, this Court has a
"longstanding doctrine that a defendant’s rights
| are not violated when he must select between two
rights that come into conflict", the decision
here would not be contrary to such a doctrine .. 23
i. The respondent did not make a choice... . 23
2. The Connecticut Supreme court’s decision
included correct assessment that the policies
behind the Sixth Amendment’s confrontation
clause were substantially impaired by the
prosecutor’s argument, while any counter-
vailing policies behind: the practice of
argument to the jury were not substantially
impaired, or not impaired at all ...... 25
‘iii
apa Ane
2 ae
ae ee me
III. OTHER REASONS FOR DENYING THE PETITION .......+ + 27
A.
CONCLUSION
Since the respondent was required to be present
at trial, he was "bushwhacked" by the prosecutor’s
argument, and disturbing the judgment of the
Connecticut Supreme Court here so as to permit
prosecutors’ comments like those made in this case
will require the Court to address the question of
what procedures must be followed in those
jurisdictions which require a defendant’s presence
at trial, which includes the federal courts... 27
If appellate opinions are used as a rough guide,
the type of argument made by the prosecutor in
this case has been rarely made .....++++. 29
30
iv
Cases
Arizona v. Evans, ® ’
La Uclice Dawe Aaewe? . +. «: e's
Bordenkircher v. Hayes, 434 U.S. 357 (1978)
v , 944 F.2d 1363 (7th Cir. 1991),
aff’d, 507 U.S. 619 (1993) je oe ae 8
California v. Green, 399 U.S. 149 (1970)
Chaffin v. Stynchcombe, 412 U.S. 17 (1973)
Coy _v. Iowa, 487 U.S. 1012 (1988) ......+.-+-. 18,
Crampton v. Ohio, decided with McGantbay.
California, 402 U.S. 183 (1971) ... “oe ares
Delaware v. Prouse, 440 U.S. 648 (1979)
Doyle v. Ohio, 426 U.S. 610 (1976)
Vv i , 418 A.2d 127
reid Bees boss ee Oe « «4 w 8. 0 ee nee
Fox Film Corp. v. Muller, 296 U.S. 207 (1935)
Griffin v. California, 380 U.S. 609 (1965) .. 13, 16,
Grunewald v. United States, 353 U.S. 391 (1957)
Herring v. New York, 422 U.S. 853 (1975)
Illinois v. Allen, 397 U.S. 327 (1970)
j j , 374 A.2d 581 (D.C. APP. a
cert. denied, 434 U.S. 894 (1977) ... P 20,
Kentucky v. Stincer, 482 U.S. 730 (1987) ..... 17,
Maryland v. Craig, 497 U.S. 836 (1990) ...... 12,
McGautha v. California, 402 U.S. 183 (1971)
Michigan v. Long, 463 U.S. 1032 (1983) ....... 6,
Minnesota v. National Tea Co., 309 U.S. 551 (1940)
Ohio vy, Roberta, 446 U.S. S56 (1980) . . . «© © «© « © @
Oklahoma City v. Tuttle, 471 U.S. 808 (1985) .....
Vv
Page
16, 19
19, 25
25, 26
21, 22
17, 21
Perry v. Leeke, 488 U.S. 272 (1989) .... + « «© «© « «© «© «
Rock v. Arkangas, 463 U.S. 44 (1990) ...+-e«4-c sees 6 2
South Dakota v. Neville, 459 U.S. 553 (1983) 6. @ Oe 6 te to eee
Vv , 124 N.H. 226,
GYs ee wes Ren, 0 ke re er ets ewe eo ae el ae a ieee 10
Vv idy, 236 Conn. 112,
C72 Ri ae ee CO) a oi 6 be Be 666. 6 ss eee
State v. Jarzbek, 204 Conn. 683,
529 A.2d 1245 (1987), cert. denied,
666 0.3. 306k: tae 3 es a eee Se ee 6 ee Sa ee eee ee
Vv , 80 Wash. App. 337,
906. P12 906: ta996) «0s & eb aa, mes an
Vv , 219 Conn. 234,
+m CO Bek Lt ee ee Ae ee ae a ee ee ee ee
: State v. Jones, 234 Conn. 324, 662 A.2d 1199 (1995) .... 28
State v. Jones, 71 Wash. App. 798, 863 P.2d 85
7 (1993), rev. denied, 124 Wash.2d 1018,
OW: 2.26 Dee C1986) ose Se Ee ee Se 6 Oe Ba ae eee
| State v. Joyce, 229 Conn. 10,
Cae Rie Boer: Ses) ° So. & se te hs he te! oc we ees ee
:
State v. Kennedy, 295 Ore. 260,
oe ee See LAOS ean PE. 6 ae Pa 8 ae A Ow ee ee
, 220 Conn. 765,
SO see ek Oe? cc <I te ek ae a. ae abe es aa
, 227 Conn. 711,
Paces BO Cen <b ee bee Cece ete ee. 3 8 4 ae eee
, 236 Conn. 266,
CTS Rome BO Cee ic Eee OW ee, CoE ee 0 et ee
Tehan v. U.S. ex rel, Shott, 382 U.S. 406 (1966) ..... 17
| United States v. Fitzpatrick, 437 F.2d 19 (2d Cir. 1970) . 28
San VeOs SES CaeT te £6 6) oe eee eA 0 RS 0, 6) ame es
Zant v. Stephens, 462 U.S. 862 (1983) .....: +... 16, 17
vi
CONSTITUTIONAL PROVISIONS
Constitution of the State of Connecticut
Article first, § 8
Constitution of the United States
aren pee * s 6 2 4 ht 6 6 6 OS
Sixth Amendment
Fourteenth Amendment
MISCELLANEOUS
L. Bilionis, Si
Spirit, 70 N.C.L.Rev. 1803 (1992)
_W. Brennan,
‘ 1 the 3
of Individual Rights, 90 Harv.L.Rev. 489 (1977)
Connecticut Rules of Court § 879 (1996)
Connecticut Rules of Court § 968 (1993)
Federal Rules of Criminal Procedure, Rule 43
W. Horton, The Connecticut State Constitution:
A Reference Guide (1993) Pe fos0 ieee
5 J. Wigmore, Evidence (3d ed. 1940)
vii
17
7, passim
26
11
11
26
13, 27
27
12
19
No. 95-1820
in The
Supreme Court Of The United States
October Term, 1995
STATE OF CONNECTICUT,
Petitioner
Vv.
STEPHEN CASSIDY,
Respondent
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF CONNECTICUT
BRIEF OF RESPONDENT IN OPPOSITION
The respondent Stephen Cassidy
respectfully requests that this Court
deny the petition for writ of certiorari
seeking review of the opinion of the
Supreme Court of the State of Connecticut
in this case.
OPINION BELOW
The opinion of the Supreme Court of Connecticut, which is the
subject of the petition, is reported as State v. Stephen Cassidy,
236 Conn. 112, 672 A.2d 899 (1996).
JURISDICTION
The judgment of the Supreme Court of Connecticut was entered on
February 27, 1996. The respondent maintains that the judgment rests on
adequate and independent state law grounds and that the jurisdiction of
this Court thus fails.
LSS eS ee eee eee
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
CONSTITUTION OF THE STATE OF CONNECTICUT (1818)
ARTICLE 1, SECTION 8
As Amended by Article XVII (1982)
Section 8 of article first of the constitution is amended to read as
follows:
In all criminal prosecutions, the accused shall have a right to
be heard by himself and by counsel; to be informed of the nature and
cause of the accusation; to be confronted by the witnesses against
him; to have compulsory process to obtain witnesses in his behalf; to
be released on bail upon sufficient security, except in capital
offenses, where the proof is evident or the presumption great; and in
all prosecutions by indictment or information, to a speedy, public
trial by an impartial jury. No person shall be compelled to give
evidence against himself, nor be deprived of life, liberty or
property without due process of law, nor shall excessive bail be
required nor excessive fines imposed. No person shall be held to
answer for any crime, punishable by death or life imprisonment,
unless upon probable cause shown at a hearing in accordance with
procedures prescribed by law, except in the armed forces, or in the
militia when in actual service in time of war or public danger.
CONNECTICUT RULES OF COURT § 968
Presence of Defendant—Continued Presence Not Required.
The defendant must be present at the trial and at the sentencing
hearing, but if he will be represented by counsel at the trial or
sentencing hearing, the judicial authority may:
(1) Excuse him from being present at the trial or a part
thereof or the sentencing hearing if he waives the right to be
present;
(2) Direct that the trial or a part thereof or the sentencing
hearing be conducted in his absence if the judicial authority
determines that he waived his right to be present; or
(3) Direct that the trial or a part thereof be conducted in his
absence if the judicial authority has justifiably excluded him from
the courtroom because of his disruptive conduct, pursuant to Sec.
892.
CONSTITUTION OF THE UNITED STATES, AMENDMENT VI
In all criminal prosecutions, the accused shall enjoy the right toa
speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which district
shall have been previously ascertained by law, and to be informed of
the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the assistance of counsel for his
defense.
CONSTITUTION OF THE UNITED STATES, AMENDMENT XIV
Section 1. All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person
of life, liberty, or property without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.
eerie
STATEMENT OF THE CASE
According to the complainant, the respondent, who he had never met
before nor known of, by agreement performed fellatio on him in the com-
plainant’s car, but soon stopped and demanded money while holding the
blade of a jackknife against the complainant’s penis. His further ac-
count of events are set out in part in the Connecticut Supreme Court’s
opinion and by the petitioner, as is part of the respondent’s account,
who had testified that he was a prostitute, and when the complainant
said he wanted oral sex, he told him it would cost $20, and that the
complainant had agreed to pay this. From there, according to the re-
spondent, there was some sexual activity but no full payment, and he was
left with $4 in pay after deciding he had wasted too much time.
The complainant testified that he was 19 at the time of the inci-
dent, a college student, and a part time tennis instructor at a local
racquet club and that the person who had chosen to have sex with, the
respondent, had been unshaven, with very messy hair, a "potholed" com-
plexion, and very rotten, discolored teeth. He also testified that when
he first gave his account to the police, he omitted any mention of the
consensual sexual activity involved, because of embarrassment. He con-
tinued to deny that he had agreed to patronize a prostitute.
The cespondent testified that after he had been partially paid with
the $4, the complainant tried to coax him into resuming sex and bringing
him to ejaculation before paying him the rest of the $20, but he refused
and the complainant demanded his $4 back. Ultimately, in leaving the
complainant’s car, he told the complainant that if he did not like not
being refunded his $4, he could go to the police officer who was in his
cruiser at the end of the street and complain about being robbed.
REASONS WHY THE PETITION SHOULD BE DENIED
t. THE DECISION BELOW RES’ ON ADEQUATE AND INDEPENDENT STATE
CONSTITUTIONAL LAW GROUNI%
A. The adequacy of the state law ground is established by the
Connecticut Supreme Court clearly holding there was a viola-
tion of the confrontation clauses of both the federal and
Connecticut constitutions
This Court has stated that "we have long recognized that ‘where the
judgment of a state court rests upon two grounds, one of which is feder-
al and the other non-federal in character, our jurisdiction fails if the
non-federal ground is independent of the federal ground and adequate to
Support the judgment.’" Michigan v. Long, 463 U.S. 1032, 1038 n.4
(1983), quoting Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935).
This case was considered by the Connecticut Supreme Court en banc.
State v. Cassidy, 236 Conn. 112, 112 n.1, 672 A.2d. 899 (1996). The ma-
jority, comprised of that court’s Chief Justice and four of its six
Associate Justices, saw fit to explicitly hold that "the prosecutor’s
argument impermissibly infringed upon [the defendant’s] rights guaran-
teed under the confrontation clauses of the federal and state constitu-
tions...." 236 Conn., at 129, 672 A.2d, 909 (emphasis added) .!
This contradicts the petitioner’s assertion that the majority re-
ferred but twice to the Connecticut constitution in its opinion, once in
Stating the respondent’s claim, 236 Conn., at 120, and then "in setting
forth the respondent’s right’s generally", as the petitioner puts it,
Petition for Certiorari ("Pet.") at 9, citing to 236 Conn., at 122.
' "(W]e must determine whether the impropriety requires reversal of the
defendant’s convictions on the kidnapping, robbery and unlawful re-
Straint charges. Because the prosecutor’s argument impermissibly in-
fringed upon his rights guaranteed under the confrontation clauses of
‘the federal and state constitutions, he is entitled to a new trial on
those counts unless the state can establish that the objectionable
comments were harmless beyond a-reasonable doubt." 236 Conn., at 129.
6
ee
ge
a PRs *
a NORAD MENT EEE EFM rr ae
Since the Connecticut Supreme Court clearly held that the prosecutor’s
argument violated the state as well as federal constitution, "this would
be an adequate state ground for decision...." South Dakota v. Neville,
459 U.S. 553, 556 n.5 (1983) (emphasis in original).
B. The holding of the Connecticut Supreme Court that the state
constitution had }F en violated was a decision made indepen-
dently of its decision regarding the federal constitution
» The Connecticut Supreme Court does not find that a viola-
tion of the confrontation clause of the Sixth Amendment
automatically means that the confrontation clause of Ar-
ticle I, § 8 of the Connecticut constitution has also
been violated
If this Court has found that a decision rests on adequate state lz~
grounds, see South Dakota v. Neville, supra, then in deciding whether it
has jurisdiction, this Court has asked if the state court "felt compel-
led by what it understood to be federal constitutional considerations to
construe and apply its own law in the manner it did...." Zacchini v.
Scripps-Howard Broadcasting Co., 433 U.S. 562, 568 (1977).
This Court has looked to see whether the state court "simply assum-
ed that any violation of the [federal constitutional] privilege also
violated, without further analysis, the state [constitutional] privi-
lege." South Dakota v. Neville, 459 U.S., at 566 n.5. Applied to this
case, the question would be whether "[a]s [this Court] understand[s] the
opinion below, Article I § [8] of the [Connecticut] Constitution will
automatically be interpreted at least as broadly as the [Sixth] Amend-
men: ...." Delaware v. Prouse, 440 U.S. 648, 653 (1979).
But the Connecticut Supreme Court does not automatically interpret
the :onfrontation clause of Article, I, § 8 of the Connecticut constitu-
tivn as least as broadly as the Sixth Amendment; that court does not
hold that a violation of the confrontation clause of the Sixth Amendment
7
thus necessarily violates the confrontation clause of Article as. 88.
The Connecticut Supreme Court has emphasized that "[w]e have re-
peatedly apprised litigants that we will not entertain a state constitu-
tional claim unless the defendant has provided an independent analysis
under the particular provisions of the state constitution at issue."
State v. Robinson, 227 Conn. 711, 721, 631 A.2d 288, 295 (1993) (empha-
Sis added; citing, "e.g.," ten of the court’s past cases) .?
2. Since the practice of the Connecticut Supreme Court is to
refuse to consider a state constitutional claim which it
finds not to have been independently analyzed by a defen-
dant, the clear holding of that court that this defendant
suffered an infringement of his state constitutional
right of confrontation shows that the holding reflects
independent state law grounds
The petitioner has claimed that "respondent’s state court appellate
brief fails to independently analyze his right of confrontation under
the state constitution and seeks no greater protection thereunder than
afforded by the federal constitution. In the absence of such an analy-
sis, it has been the virtually unwavering practice of the Connecticut
Supreme Court to confine its analysis to the federal constitution. State
Vv. _Varszegi, 236 Conn. 266, 269 n.4, [673] A.2d [90] (1996); State v.
Joly, 219 Conn. 234, 25¢ n.1%, 593 A.2d S€ (1991)." Pet. at 10.
sut the Connecticut Supreme Court “id not observe that the respon-
dent in his brief to that court failed to independently analyze his
right of confrontation under the state constitution. If it had, a hold-
? One of the example cases listed in State v. Robinson, supra, shows what
happens when a defendant "claims...he was deprived of his right under
the sixth and fourteenth amendments to the federal constitution to con-
front his accusers" and where he "also makes reference to the constitu-
tion of the state of Connecticut, but provides no independent analysis
under its provisions." State v. Pinnock, 220 Conn. 765, 776 & n.3, 601
A.2d 521, 528 &n.3 (1992). The Connecticut Supreme Court refuses to ad-
dress the state constitutional claim: "[a]ccordingly, we do not review
his state constitutional claims." Id. (citation omitted). ;
8
P teecy?
Cope ang PAN EE
ing that despite this failure in briefing there was a violation of that
state constitutional right anyway woul have been a remarkable, if not
unprecedented, deviation from the requi;ement being enforced that with-
out an independently analyzed claim c* #tate constitutional error, the
state constitutional law claim will net be reviewed. See State v. Rob-
inson, 227 Conn., at 721, 631 A.2d, 29%, and cases cited therein.
The Connecticut Supreme Court did not state that the respondent’s
claim of error raised under the state and federal constitutions was "in-
complete[ly]" analyzed under the Connecticut constitution, compare State
v. Varszegi, 236 Conn., at 269 n.4 (court confines its analysis "to the
federal constitution"), or that he "fail[ed] independently to analyze
the state constitution", State v. Joly, 219 Conn., at 258 n.16 ("we lim-
it our analysis to the federal constitution"). Rather, the Connecticut
Supreme Court noted that the respondent had not claimed that he was "en-
titled te additional protections under the state constitution...." 236
Conn., at 120 n.9. As Justice Callahan noted, the reference to "addi-
tional" protections was synonymous with reference to "greater" protec-
tions. See 236 Conn., at 146 n.1 (Callahan, J., dissenting) .?
3. The Connecticut Supreme Court has clearly stated that
when it finds the Connecticut constitution to have been
violated, and in doing so has referred to federal cases,
the federal cases are used as persuasive authority only
The petitioner has claimed that the Connecticut Supreme Court in
> "Although the majority briefly mentions the state constitutional right
of confrontation, I do not understand the majority to hold that the
scope of the right of confrontation is in any way greater under the
state constitution than it is under the federal constitution." 236
Conn., at 146 n.1, 672 A.2d, 917 n.1 (Callahan, J., dissenting) (em-
phasis added). Part of footnote 9 of the majority opinion states that
the defendant did not claim that he was entitled to "additional protec-
tions under the state constitution, and therefore we rest our decision
on the federal constitution", after the relevant part of Article I, § 8
was quoted. 236 Conn., at 120 n.9 (emphasis added).
9
this case has relied "largely upon federal precedent" in crafting its
opinion. Pet. at 10. This Court, in deciding whether it has jurisdic-
tion, has looked to the use made of federal precedents in state court
decisions: "If a state chooses merely to rely on federal precedents as
it would on the precedents of all other jurisdictions, then it need only
make clear by a plain statement in its judgment or opinion that the fed-
eral cases are being used only for the purpose of guidance, and do not
themselves compel the result that the court xcached." Michigan v, Long,
463 U.S., at 1041.
Justice Ginsburg, joined by Justice Stevens, has asked "[c]an the
highest court of a State satisfy Long’s ‘plain statement’ requirement in
advance, through a blanket disclaimer?" Arizona v. Evans, U.S. -
415 S.Ct. 1185, 1201 (1995) (Ginsburg, J., dissenting), citing State v.
Ball, 124 N.H. 226, 233, 471 A.2d 347, 352 (1983); State v. Kennedy, 295
Ore. 260, 267, 666 P.2d 1316, 1321 (1983). The language used in Michigan
v. Long makes it appear that in each case where a holding is made under
a state constitution that appears to have drawn heavily on federal pre-
cedent, a disclaimer "need" be made that federal precedent is being used
for persuasive authority only. See id., 463 U.S., at 1041.
However, this Court, at least to the respondent, has not explicitly
held that a blanket disclaimer in advance would be unavailing. See Ari-
zona v. Evans, __—s—*U«wS. ss, : «115 S.Ct., 1189-91 & nn. 2-4. If intelli-
gent exercise of this Court’s appellate powers compels it "to ask for
the elimination of the obscurities and ambiguities" in state court de-
cisions where a jurisdictional question might be raised, Arizona v. Ev-
ans, Supra, __. ~iU.S. ___, 115 S.Ct., 1190 (emphasis added), quoting
Minnesota v. National Tea Co., 309 U.S. 551, 557 (1940); and the Court
10
———
has been concerned about the "intrusive practice of requiring state
courts to clarify their decisions to the satisfaction of this Court" and
to "provide state judges with a clearer approach to develop state juris-
prudence unimpeded by federal interference, and yet [to] preserve the
integrity of federal law", Arizona v. Evans, U.S. 5 aan Ses
1189 (emphasis added), quoting Michigan v. Long, 463 U.S., at 1041; the
choice by a state’s highest court of appeals to rely on a blanket dis-
claimer in advance that explains that references to federal law in its
decisions under its state constitution are for persuasive effect should
sufficiently reconcile these concerns.
The Connecticut Supreme Court has issued such blanket disclaimer:
When interpreting the contours of our state charter of lib-
erty, it is clear that we may look to federal precedent. [ci-
tations] [S]ee Michigan v. Long, 463 U.S. [, at 1041]... (re-
cognizing that in interpreting a state constitution, a state
court may "rely on federal precedents as it would on the pre-
cedents of all other jurisdictions") . We employ this precedent
for guidance and analogy when the federal authorities are
"logically persuasive and well-reasoned." W. Brennan, "State
Constitutions and the Protection of Individual Rights," 90
Harv.L.Rev. 489, 502 (1977) ("state court judges, and also
practitioners, do well to scrutinize constitutional decisions
by federal courts, for only if they are found to be logically
persuasive and well-reasoned, paying due regard to precedent
and the policies underlying specific constitutional guaran-
tees, may they properly claim persuasive weight as guideposts
when interpreting counterpart state guarantees").
State v. Joyce, 229 Conn. 10, 19-20, 639 A.2d 1007, 1013 (1994). As the
court had earlier explained, "[{iJt is important to note that our adop-
tion of an analytical framework or methodology used under the federal
constitution does not compel this court to reach the same outcome that
a federal court might reach when the methodology is applied to a par-
ticular set of factual circumstances." Id., 229 Conn., at 18 n.12, 639
A.2d, 1012 n.12, citing L. Bilionis, On the Significance of Constitu-
tional Spirit, 70 N.C.L.Rev. 1803, 1808-09 (1992).
‘11
These statements in State v. Joyce, supra, explain in advance that
federal precedent is being used in the Connecticut Supreme Court’s state
constitutional holdings for persuasive, not controlling, effect.
4. Even a cursory look at the opinion of the Connecticut Supreme
Court in this case shows that references to federal precedent
were used in stating general propositions of law or in
illustrating analogous situations, not in deciding that
an interpretation of federal precedent controlled the state
constitutional holding
The Connecticut Supreme Court cited some of this Court’s opinions
and some of its own opinions in noting the importance of a right to con-
frontation, the explicit provision of such right in both the federal and
Connecticut constitutions, that the right to physical confrontation was
a fundamental component of the federal and state confrontation clauses,
and that an accused person was guaranteed the right to be present in the
courtroom at every stage of his (or her) trial. State v. Cassidy, 236
Conn., at 122 (citations omitted).
Then, in describing the various benefits to the criminal justice
system stemming from physical confrontation in the courtroom, the Con-
necticut Supreme Court cited several of this Court’s past decisions and
State v. Jarzbek, 204 Conn. 683, 695, 529 A.2d 1245 (1987), cert. deni-
ed, 484 U.S. 1061 (1988). Then, the court noted that because of these
benefits, the free exercise of the right to physical confrontation could
not be impaired without a compelling justification. Cited "e.g.", were
Maryland v. Craig, 497 U.S. 836, 850 (1990); and State v. Jarzbek,
Supra, 704-05. State v. Cassidy, 236 Conn., at 123-24.
State v. Jarzbek, supra, has been described as "[t]he only signifi-
cant state constitutional case concerning the confrontation clause" by
W. Horton, The Connecticut Constitution: A Reference Guide (1993), at
the time that work was published. See id., 55.
12
—
a Is NEY OIG CPE Me Bat Ca et eae
After weighing the defendant’s claim against the state’s conten-
tions in a long paragraph in which the only thing cited was Connecticut
Rules of Court § 968 (defendant required to be present at trial unless
excused by court), the Connecticut Supreme Court considered the nature
of the specific argument that the prosecutor in this case made and de-
cided it placed too high a price on his right to a face to face encoun-
ter with the prosecution’s witnesses.‘ Cassidy, 236 Conn., at 124-25.
The court then went on to note that it was "well settled" that a
constitutional violation can occur without complete abridgement or de-
privation of that right, such as when state action "unnecessarily chills
or penalizes the free exercise of the right. 236 Conn., at 126. As exam-
ples, the court cited, "e.g.", six of this Court’s cases and one of its
own cases. 236 Conn., at 126-27. In the next paragraph, the court linked
up that concept with what had happened in the instant case, first as a
general proposition that inviting the fact finder to draw an inference
adverse to a defendant solely because he asserted a constitutional right
was not to be tolerated, citing two of this Court’s cases. 236 Conn., at
127. The court then noted that prosecutorial comments similar to what
had been made in the respondent’s trial had been disapproved as consti-
tutionally infirm by those courts in other jurisdictions that have con-
sidered them, citing two District of Columbia Court of Appeals cases and
a Washington state case. State v. Cassidy, 236 Conn., at 127-28.
In the concluding paragraph of its discussion about whether error
* The trial prosecutor’s assertion to the judge that he was not pointing
out anything that the jurors could not see for themselves was remarkably
similar to the State of California’s argument to this Court in Griffin
v. California, 380 U.S. 609, 614 (1965). To show that there was a dif-
ference between what the jurors might observe for themselves and what
was solemnized as evidence against the accused by comment to the jury on
- the other hand, Griffin was quoted. See 236 Conn., 125-26 nn.14-15.
13
had occurred, one Connecticut case was cited, in distinguishing what
would have been permissible for the prosecutor to have argued to the
jurors. See State v. Cassidy, 236 Conn., at 128-29.
As cursory review of the court’s opinion reveals, federal precedent
was used, as was Connecticut state precedent and the opinions of courts
of other jurisdictions, in crafting an opinion which hardly "relies ex-
clusively on federal law" except for the two references to the Connecti-
cut constitution that the petitioner has noted to this Court. See Pet.
at 9-10.° In reasoning through from what the right to physical confron-
tation provides as benefits under both the federal and state constitu-
tions, to the conclusion that both rights were violated in this case,
federal precedent was not relied upon except "for guidance and analogy",
see State v. Joyce, supra, 229 Conn., at 20, in deciding the issue under
both the federal constitution and the state constitution.
II. THE FEDERAL CONSTITUTIONAL CLAIM WAS CORRECTLY DECIDED
A. The Connecticut Supreme Court’s decision was neither
unprecedented nor unwarranted
1. This case involves urging jurors to draw an adverse in-
ference solely from a defendant’s exercise of one of his
constitutional rights, which is patently unconstitutional
As one of the two reasons why this Court should grant his pe*ition,
the petitioner has claimed that the Connecticut Supreme Court has ruled
that a criminal defendant’s Sixth Amendment right to be present at trial
and confront his accusers is violated whenever a prosecutor asks a jury
° As noted earlier, the petitioner overlooked the explicit holding that
the state constitutional right to confrontation had been violated, State
v. Cassidy, 236 Conn., at 129. Moreover, there was a fourth mention of
the Connecticut constitution, on page 129, in footnote 18. id. And the
second reference, "setting out the respondent’s right’s generally", as
petitioner calls it, is no mere passing mention but instead goes into
‘some detail on the subject. See ibid., at 122. ;
14
to consider the defendant’s presence at trial when assessing his credi-
bility. This ruling is an unprecedented and unwarranted expansion of the
Sixth Amendment right of confrontation...." Pet. at 8 (emphasis added).
However, the Connecticut Supreme court decided that "[wle agree
with the defendant that the prosecutor’s argument invited the jury to
draw an inference adverse to the defendant solely because he asserted
his constitutional right to be present at trial and, consequently, that
these comments unreasonably interfered with the defendant’s free exer-
cise of that right." Cassidy, 236 Conn., at 120, 672 A.2d, 904 (emphasis
added). The Connecticut Supreme Court decided that "[i]Jnviting the fact
finder to draw an inference adverse to a defendant solely on account of
the defendant’s asserting of a constitutional right impermissibly bur-
dens the free exercise of that right and, therefore, may not be toler-
ated." Id., at 127, 672 A.2d, 908. "(T]he prosecutor invited the jury to
draw an inference adverse to the defendant solely because of the defen-
dant’s exercise of his constitutional right to confront the witnesses
against him." 236 Conn., at 127-28, 672 A.2d, 908 (emphasis added).
"(I])n defending the propriety of his argument to the trial court in
response to the defendant’s request for a curative instruction, the
prosecutor relied only upon the fact that the defendant had been present
throughout trial." See State v. Cassidy, 236 Conn., at 126 n.14, 672
A.2d, 907 n.14 (emphasis added). The prosecutor had argued to the trial
court that "[i]t’s fair comment...for the State to be able to discredit
the defendant’s testimony by means of the fact that he heard everyone
else’s testimony." Id.
As the Connecticut Supreme Court recognized, "for an agent of the
State to pursue a course of action whose objective is to penalize a per-
15
son’s reliance on his legal rights is ’patently unconstitutional’". Bor-
Genkircher v. Hayes, 434 U.S. 357, 363 (1978), quoted at 236 Conn., at
127, 672 A.2d, 907. When a state agent’s gnaly basis for penalizing a
constitutional right is that it was asserted, that is patently unconsti-
tutional. Chaffin v. Stynchcombe, 412 U.S. 17, 32 n.20 (1973).
2. The federal constitutional right infringed upon was one
this Court sees as ensuring the integrity of the fact
finding process, which was properly considered in finding
an impermissible burdening of that right in this case
The Connecticut Supreme Court did nothing unprecedented nor unwar-
ranted by linking the prosecutor’s argument in this case to the concept
that "(i]nviting the fact finder to draw an inference adverse to a de-
fendant solely on account of the defendant’s assertion of a constitu-
tional right impermissibly burdens the free exercise of that right and,
therefore, may not be tolerated." Cassidy, 236 Conn., at 127, 672 A.24d,
908. It cited as examples Zant v. Stephens, 462 U.S. 862, 885 (1983),
where this Court held that an aggravating factor in a sentencing proce-
dure would be invalid if it "authorizes a jury to draw adverse infer-
ences from conduct that is constitutionally protected";* and Griffin v.
California, 380 U.S. 609, 614 (1965), where this Court held that state-
ments to jurors by the trial court or prosecutor to draw an adverse in-
ference due to a defendant’s election not to testify violated the fede-
®° The petitioner’s description of this part of the Zant opinion allows
for it to be read at first as if this Court would have found this permis-
sible: "the Court noted, without further discussion or analysis, that
the aggravating factor was not ‘invalid because it authorizes a jury to
draw adverse inferences from conduct that is constitutionally protect-
ed.’" Pet. at 13, quoting Zant v. Stephens, supra. But this Court then
stated that if the aggravating circumstance at issue in that—case had
authorized the jury to draw adverse inferences from conduct that was
constitutionally protected, then it would be invalid. Id., 462 U.S., at
885. The "not invalid" language was used by the Court in giving examples
of what would be invalid but did not apply in that case because the ag-
gravating circumstance was invalid for a different reason. Ibid. ~
16
ral constitution as "a penalty imposed by courts for exercising a con-
stitutional privilege". Cassidy, 236 Conn., at 127, 672 A.2d, 908.
According to the petitioner, "[t]he Zant decision, however, is de-
void of any discussion of the relationship between constitutionally pro-
tected conduct and the state’s use of same to impeach a defendant’s cre-
dibility" and so that case "offers little support for the result reached
in the instant case", and likewise for Griffin v. California, supra, be-
cause in that case "the accused never took the witness stand and, there-
fore, never placed his credibility in issue." Pet. at 13-14.
The petitioner argues that "[t]o the extent that the prosecutor’s
comment on the defendant’s presence burdened his Sixth Amendment right
of confrontation, it did not do so unconstitutionally." Pet. at 14. In-
stead, the petitioner argues, it was just a matter of the respondent
having been required to choose which course to follow. Id., citing Mc-
Gautha v. California, 402 U.S. 183, 213 (1971).
But McGautha was a Fifth Amendment privilege against compelled self
incrimination case. Id., 402 U.S., at 213. This Court has stated that
"the Fifth Amendment’s privilege against self-incrimination is not an
adjunct to the ascertainment of truth." Tehan v. U.S. ex rel. Shott, 382
U.S. 406, 416 (1966) (emphasis added).
By contrast, the constitutional right that the defendant in this
case exercised, and was penalized for by the prosecutor’s argument to
the jurors, which was left undisturbed by the trial court, was the right
to confrontation, which "is a functional one for the purpose of promot-
ing reliability in a criminal trial." Kentucky v. Stincer, 482 U.S. 730,
739 (1987). The "underlying purpose" of the Sixth Amendment’s Confronta-
tion Clause is "to augment accuracy in the factfinding process...." Qhio
17
v. Roberts, 448 U.S. 56, 65 (1980).
The right to face to face confrontation and the right to cross-
examine prosecution witnesses, a "less explicit component of the Con-
frontation Clause", both "’ensur[e] the integrity of the fact-finding
process.’" Coy v. Iowa, 487 U.S. 1012, 1019-20 (1988), quoting Kentucky
v. Stincer, 482 U.S., at 736.
The right to face to face confrontation makes it more difficult for
a witness to lie about the accused or to tell a lie when it would great -
ly harm him. And "even if the lie is told, it will often be told less
convincingly" because the jury might be clued by the witness’ demeanor
while telling such a lie. ¢ v. Iowa, 487 U.S., at 1039. Such demeanor
evidence may be prompted entirely or in large part by the fact that the
witness is face to face with the accused. Iid., &n.2. These benefits to
the truth seeking process may come either on direct examination of the
witness or on cross-examination or both.
But the accused’s presence also enhances the reliability of the
factfinding process in another important way. "Cross-examination often
depends for its effectiveness on the ability of counsel to punch holes
in a witness’ testimony at just the right time, in just the right way."
Perry v. Leeke, 488 U.S. 272, 282 (1989). "{O]ne of the defendant’s pri-
mary advantages of being present at trial [is] his ability to communi-
cate with his counsel," Illinois v. Allen, 397 U.S. 327, 344 (1970);
such as during the direct examination of prosecution witnesses so as to
be "available to assist his counsel as necessary" in preparing for the
cross-examination of these witnesses, and continuing on through their
cross-examination, to still be available to assist counsel as necessary,
so that the accused can be said to have had an opportunity for full and
18
effective cross-examination. See Kentucky v. Stincer, 482 U.5., Ge 7403
So, in this way, too, an accused’s presence during the testimony of
prosecution witnesses contributes to the effectiveness of defense coun-
sel’s cross-examination of them, and "the Court has recognized that
cross-examination is ‘the greatest legal engine ever invented for dis-
covery of truth.’" Kentucky v. Stincer, 482 U.S., at 736, quoting Cali-
fornia v. Green, 399 U.S. 149, 158 (1970), which quoted 5 J. Wigmore,
Evidence § 1367, p.29 (3d ed. 1$40).
The Connecticut Supreme Court, just noting some of the benefits to
the truth-seeking process that come from face-to-face confrontation,
State v. Cassidy, quoting Coy v. Iowa, supra, 487 U.S., at 1019-20, and
Vv rzbek, supra, 204 Conn., at 695, took this into account when
it found that if all that a prosecutor could point to was that the de-
fendant’s presence throughout the trial gave him the opportunity to
color his testimony, and so he should not be believed, there was no
"compelling justification for the infringement." State v. Cassidy, 236
Conn., 123-24, citing Maryland v. Craig, 497 U.S. 836, 850 (1990); State
Vv. Jarzbek, supra, 204 Conn., at 704-05. In determining whether a con-
stitutional right has been impermissibly burdened, a court takes into
consideration the legitimacy of the challenged state action. See Chaffin
v. Stynchcombe, supra, 412 U.S., at 32 & n.20. The Connecticut Supreme
Court made the correct decision under the facts of this case.
3. Almost every jurist who has considered similar comments
has found them to be constitutionally infirm, so the
decision in the present case is hardly "unprecedented"
The petitioner has claimed that the Connecticut Supreme Court’s
decision was "unprecedented...." Pet. at 8. Yet, the court noted that
although it was a question of first impression in Connecticut, "similar
19
prosecutorial comments have been disapproved as constitutionally infirm
in other jurisdictions that have considered them." State v. Cassidy, 236
Conn., 128, citing Dyson v. United States, 418 A.2d 127, 131 (D.C. App.
1980); Jenkins v. United States, 374 A.2d 581, 584 (D.C. App.), cert.
denied, 434 U.S. 894 (1977); State v. Jones, 71 Wash. App. 798, 809-11,
863 P.2d 85 (1993), rev. denied, 124 Wash.2d 1018, 881 P.2d 254 (1994) .’
Justice Callahan, in his dissenting opinis-a, perceived a distinc-
tion between finding comments to be "constitutionally infirm" and find-
ing comments to be a constitutional violation. According to Justice
Callahan, State v. Jones, supra, was inapposite because the comment at
issue involved the defendant’s eye contact with the victim during her
testimony. And, he noted, both the Dyson and Jenkins courts treated the
comments under the standard due process analysis for allegedly improper
comment, with the comments in Jenkins found not to rise to the level of
substantial prejudice, while the comments at issue in Dyson did, but
were part of a combination of improper comments. State v. Cassidy, 236
Conn., at 152 n.4 (Callahan, J., dissenting).
But the reason why the Jenkins court analyzed the comments under
the standard due process analysis for prosecutorial misconduct was be-
cause that was the way the issue was presented to the court. See Pt oe
374 A.2d, at 583. The same goes for the way the issue was presented to
the Dyson court. See id., 418 A.2d, 129.
The Jenkins court noted that the prosecutor "suggested that appel-
lant’s presence during trial facilitated his ability to fabricate. In
effect, the prosecutor sought to have the jury draw adverse inferences
’ The respondent, in his brief to the Connecticut Supreme Court, at p.
36 &n.30, set out the facts and relevant part of the Dyson opinion, and
in his reply brief, at p. 13 & n. 12, cited Jones and noted its facts.
20
a
from appellant’s exercise of his right to confront the witnesses against
him. Cf. Griffin v. California, [supra]. This, we think, was improper,
and in the future, such comments on a defendant’s presence in the court-
room should not be countenanced by the trial court." Jenkins v. United
States, 374 A.2d, at 584.
The Dyson court dealt with an argument to the jury similar to that
made in the instant case: "and you must remember, Mr. Dyson heard ail
the testimony, as he was the last one to testify....[4] He listened to
what everyone said and then he gets up and tells his story." The court
noted that "(w]e have construed such an argument as an apparent attempt
by the prosecutor to have the jury draw adverse inferences from appel-
lant’s exercise of his constitutional right to confront witnesses." Id.,
418 A.2d, at 131, citing, among other cases, Jenkins, supra.
In Dyson, as in the instant case, the jury was left to decide who
to believe in a proverbial swearing match. Id., 418 A.2d, 132 ("[t]he
jury’s assessment of the believability of either version was dispositive
of its finding of guilt or innocence"); State v. Cassidy, 236 Conn., at
130 ("(t)he jury’s principal task...was to determine which of these two
witnesses to believe, making their credibility decisive to the outcome
of the case"). The Dyson court found that even if some of the other im-
proper comments were neutralized by general instructions of the trial
court, "the defense was still faced with the dangers inherent in the im-
permissible suggestions that the jury might draw adverse inferences from
the absence of evidence and the presence of the defendant." Accordingly,
the Dyson court found there was reversible error. Id., 418 A.2d, at 132.
And while Justice Callahan in his dissenting opinion found State v.
Jones, supra, to be inapposite because it dealt with comment on the ac-
21
cused’s eye contact with his accuser, the majority of the Connecticut
Supreme Court did not. A look at Jones shows that it was similar enough
to warrant citing. Jones "claim[ed] that his right of confrontation was
compromised by the prosecutor’s questions on cross examination and the
remarks made in closing argument regarding his staring at A. during her
testimony." State v. Jones, 863 P.2d, at 93. The court then undertook a
Sixth Amendment Confrontation Clause analysis, having been asked to do
so instead of having been asked to undertake a standard prosecutorial
misconduct due process analysis as in Jenkins and Dyson, supra, and
found constitutional error because "Jones was validly exercising his
right of confrontation and the State’s commentary did constitute an im-
permissible use of constitutionally protected behavior." However, it
found the error to have been harmless beyond a reasonable doubt because
the evidence against Jones, including his own admission, was overwhelm-
ing. State v. Jones, 863 P.2d, at 93-94.
That State v. Jones presented a sufficiently similar scenario to
what occurred in the instant case was further borne out when the same
court that decided Jones relied heavily on what had occurred in that
case and in Dyson, supra, where the "[d]efendant contend[ed] that the
prosecutor, in rebuttal argument, impermissibly commented on his
exercise of his constitutional right to be present at trial." State v.
Johnson, 80 Wash. App. 337, 339, 908 P.2d 900, 901 (1996).
* The prosecutor began his rebuttal argument with "[m] embers of the jury,
I would like to submit to you that the one and only witness who had a
bird’s eye view of everything that happened, the only one witness that
could watch the entire proceeding take place, to fit his testimony to
suit the evidence that was entered earlier, and that’s the defendant."
(¥] Before the defendant took the stand, he heard testimony on Wednesday
and on Thursday....He had all the time from Thursday from 3:30 to Mon-
day, today, at 1:20 to decide what his testimony would be." Defense
counsel’s objection was sustained and the jury instructed to disregard
22
—
In no uncertain terms, the Washington Court of Appeals held that
"(t]he prosecutor’s comments about the defendant’s unique opportunity to
be present at trial and hear all the testimony against him impermissibly
infringed his exercise of his Sixth Amendment rights to be present at
trial and confront witnesses. He did not merely argue inferences from
the defendant’s testimony, but improperly focused on the exercise of the
constitutional right itself." State v. Johnson, 80 Wash. App., at 341,
908 P.2d, 902. The court noted that "[t]ypically, we examine whether
prosecutorial misconduct denied the defendant a fair trial and reverse
if there is a substantial likelihood that the comments affected the ver-
dict" but "[w]hen a prosecutor’s comments also affect a separate consti-
tutional right, they are subject to the stricter standard of constitu-
tional harmless error." Id. (both cites) (citations omitted) .°
As the cases cited above show, the Connecticut Supreme Court’s de-
cision on Sixth Amendment grounds was hardly unprecedented, but repre-
sents a mainstream view.
B. Even if, as petitioner asserts, this Court has a "longstanding
doctrine that a defendant’s rights are not violated when he
must select between two rights that come into conflict", the
decision here would not be contrary to such a doctrine
» The respondent did not make a choice
The petitioner has claimed that the Connecticut Supreme Court’s de-
cision was "contrary to this Court’s longstanding doctrine that a defen-
the comments on the sequence of the testimony. But the prosecutor then
continued: "I would suggest the defendant had fit his testimony, to tai-
lor his testimony to what came before--." Another objection was sustain-
ed. State v. Johnson, 80 Wash. App., at 340-41, 908 P.2d, 902.
* While Johnson’s credibility was at issue because he testified, the er-
ror was found harmless beyond a reasonable doubt because the evidence
against him was overwhelming. State v. Johnson, 80 Wash. App., at 342,
908 P.2d, 902-03.
23
dant’s rights are not violated when he must select between two rights
that come into conflict." Pet. at 8. Later, quoting from McGautha v.
California, supra, 402 U.S., at 213, the petitioner claims that the fed-
eral constitution does not always forbid a defendant from being required
to make choice, even if it involves a constitutional right. Pet. at 14.
In context, it appears that the petitioner is claiming that allow-
ing comment on the defendant’s exercise of his Confrontation Clause
right to be present throughout trial if he testifies is a price that he
can be required to pay if he decides to go ahead and also exercise his
constitutional right to testify.” See Pet. at 11-15.
The first flaw in this argument is that even if, for the sake of
argument here only, it is permissible for a prosecutor to argue to the
jury that solely on the basis of the defendant’s presence throughout the
trial, nis testimony should not be believed, the respondent did not make
a choice to pay this price so that he could exercise both his right to
be present throughout the trial and the right to testify.
As the Connecticut Supreme Court recognized, this was "a question
of first impression in this state," State v. Cassidy, 236 Conn., at 128;
and so the respondent, when he decided to testify, cannot be seen to
have thereby implicitly decided to pay the price exacted by the prose-
cutor’s argument to the jury about his exercise of his right to be pre-
sent throughout the trial.
By comparison, in Crampton v. Ohio, decided with McGautha, supra,
the Court noted that "[i]n Crampton’s case, in accordance with Ohio law"
© The Connecticut Supreme Court had noted that the prosecutor’s comment
also burdened the respondent’s federal constitutional right to testify
on his own behalf, citing Rock v. Arkansas, 483 U.S. 44, 51-53 (1990),
but because the respondent had not raised such claim, the court stated
that "we do not base our decision on it." 236 Conn., at 128 n.16.
24
the jury determined guilt and punishment in a unitary proceeding, 402
U.S., at 185 (emphasis added); and the Court had to decide whether the
choice required by Ohio of Crampton having to relinquish his Fifth
Amendment right not to be compelled to be a witness against himself in
the guilt phase of his trial so as to be heard on the issue of punish-
ment and to not have his sentenced fixed without the benefit of all the
relevant evidence, Fourteenth Amendment due process rights, was consti-
tutionalily permissible. Crampton v. Ohio, 402 U.S., at 211.
In this case, however, "the Court [is] dealing with the State’s
unilateral imposition of a penalty upon a defendant who had chosen to
exercise a legal right...." See Bordenkircher v. Hayes, 434 U.S. 357,
362 (1978) (analyzing other cases). The respondent made no choice in
this case to have one constitutional right penalized as the price of his
exercising another constitutional right; his decision to testify was
made long before the prosecutor made his argument to the jury, which was
an unprecedented one in Connecticut state court criminal trials.
2. The Connecticut Supreme Court’s decision included correct
assessment that the policies behind the Sixth Amendment’ s
confrontation clause were substantially impaired by the
prosecutor’s argument, while any countervailing policies
behind the practice of argument to the jury were not sub-
stantially impaired, or not impaired at all
When there is a perceived tension between constitutional rights,
"{t)he threshold question is whether compelling [an] election [between
them] impairs to an appreciable extent any of the policies behind the
rights involved." Crampton v. Ohio, supra, 402 U.S., at 213. As the Con-
necticut Supreme Court noted, the right of face to face confrontation at
trial helps to ensure the integrity of the fact-finding process. State
v. Cassidy, 236 Conn., at 123, quoting Coy v. Iowa, supra, 487 U.S., at
1019-20. The respondent has amplified on that in § IIA 2 of this brief.
25
As he also addressed in § IIA of this brief, for a prosecutor to argue
to the jurors solely on the basis of the defendant’s exercise of his
right to face to face confrontation throughout trial that they should
draw an adverse inference against him, had no compelling justification.
Id. See Cassidy, 236 Conn., at 123-24, citing Maryland v. Craig, supra.
The petitioner has not claimed the prosecutor had a constitutional
right to make an argument to the jury. See Pet. at 11-15. But since
closing argument for the defense is guaranteed by the Sixth Amendment’s
right to counsel provision, applied to the states by means of the Four-
teenth, Herring v. New York, 422 U.S. 853, 864-65 &n.18 (1975), closing
argument for "both sides" is provided for as a matter of course. E.g.,
Connecticut Rules of Court § 879 (1996). So even if, arguendo, prosecu-
tors do not have a constitutional right to make a closing argument, the
analytical framework in Crampton v. Ohio, supra, for a required choice
between two constitutional rights is still useful here, albeit that in
Crampton the rights involved belonged to the same person.
"(C]losing argument serves to sharpen and Clarify the issues for
resolution by the trier of fact in a criminal case." Herring v. New
York, supra, 422 U.S., at 862.
For it is only after all the evidence is in that counsel for
the parties are in a position to present their respective
versions of the case as a whole. Only then can they argue the
inferences to be drawn from all the testimony, and point out
the weaknesses of their adversaries’ positions....
id. Closing argument, like other exercises of partisan advocacy ina
criminal case, is meant "to promote the ultimate objective that the
guilty be convicted and the innocent go free." Ibid.
If in general, "[{i]t seems particularly incongruous and indefensi-
ble...to draw inferences of lack of honesty from invocation of a priv-
26
ee
ilege deemed worthy of enshrinement in the Constitution." Grunewald v.
United States, 353 U.S. 391, 425-26 (1957) (Black, J., concurring); it
is even more so the case when the jurors are urged to draw an inference
of lack of honesty from exercise of a constitutional provision that this
Court has found enhances the integrity of the fact-finding process, Coy
vy. lowa, supra; and where, on top of that, the prosecutor bases his argu-
ment "solely on account of the defendant’s assertion of [that] constitu-
tional right...." State v. Cassidy, 236 Conn., at 127.
The Connecticut Supreme Court acknowledged that a prosecutor is en-
titled to argue his case to the jury forcefully, including, if he has
the evidence to back it up, that the accused has tailored his testimony
to fit the state’s case. 236 Conn., at 128 & n.17. But the jury was
presented in this case with a distorted picture of what was going on,
which the court realized, see id., 124, and the fact that the tool the
prosecutor used to do so was the respondent’s exercise of a constitu-
tional right disserved the policies behind closing argument, as was im-
plicit in the Connecticut Supreme Court’s decision. See ibid., 128-29.
III OTHER REASONS FOR DENYING THE PETITION
A. Since the respondent was required to be present at trial, he
was “bushwhacked" by the prosecutor’s argument, and disturbing
the judgment of the Connecticut Supreme Court here so as to
permit prosecutors’ comments like those made in this case will
require the Court to address the question of what procedures
must be followed in those jurisdictions which require a defen-
dant’s presence at trial, which includes the federal courts
As the Connecticut Supreme Court also pointed out, the respondent
was "required to be present at trial" under Connecticut Rules of Court
§ 968. State v. Cassidy, 236 Conn., 122 n.12 (emphasis in original). See
also Federal Rules of Criminal Procedure, Rule 43 ("[t]he defendant
shall be present...at every stage of the trial"); which has been held to
27
mean that "[i]t does not give a defendant a right to absent himself from
the courtroom." United States v. Fitzpatrick, 437 F.2d 19, 27 (2d Cir.
1970) (trial court denied defendant’s motion to waive his presence).
"(I]nsisting that the government play it straight with those it
prosecutes" is a matter of fundamental fairness. Brecht v. Abrahamson,
944 F.2d 1363, 1370 (7th Cir. 1991), aff’d, 507 U.S. 619 (1993). The
Seventh Circuit was discussing Doyle v. Ohio, 426 U.S. 610 (1976), and
in language applicable to this case nected that the Court’s decision in
Doyle rested on an "anti-mousetrapping ground...." Brecht v. Abrahamson,
944 F.2d, at 1369. Such strictures apply here. A defendant required by
law to be present in the courtroom throughout the trial should not be
"bushwhacked by an argument that [presence] implies guilt" or dishon-
esty. See id., at 1368 ("[a] suspect told that he has a right to remain
silent, Doyle concluded, may not be bushwhacked by an argument that
silence implies guilt").
If a court should not instruct the jury that it may draw the infer-
ence that the defendant’s conduct is evidence of a guilty conscience
when "(t]he defendant did that which the law allows and even encour-
ages", State v. Jones, 234 Conn. 324, 358-59, 662 A.2d 1199 (1995)
(making partially successful legal arguments in court opposing state’s
motion to obtain blood, saliva and hair samples); then when a defendant
did that which the law requires, a trial court cannot sit by and have
the prosecutor turn what he did against the defendant. See id.
Moreover, if this Court were to disturb the Connecticut Supreme
Court’s judgment in this case, and find that the argument made by the
prosecutor in this case was after all constitutionally permissible, the
Court would have to deal with what, applicable to the states, and to the
28
federal courts, is required of trial judges in light of the possibility
that a prosecutor would want to make such an argument, when that juris-
diction requires the defendant to be present at trial. Leaving undis-
turbed the judgment of the Connecticut Supreme Court keeps this Court
from having to intrude upon the decisions made by those jurisdictions
which require a defendant’s presence throughout trial.
B. If appellate opinions are used as a rough guide, the type
of argument made by the prosecutor in this case has been
rarely made
Using the reported opinions of appellate courts nationwide as a
rough guide to the frequency of occurrence of the type of argument at
issue in this case, there are but a handful of cases over the past two
decades or more in which courts have been asked to deal with such argu-
ments. See State v. Cassidy, 236 Conn., at 128 (citations omitted). See
also State v. Johnson, supra, and cases cited therein.
As this Court has stated, "[(o]ur decision to grant certiorari rep-
resents a commitment of scarce judicial resources...." Oklahoma City v.
Tuttle, 471 U.S. 808, 816 (1985). Taking these factors into considera-
tion, rudimentary cost/benefit analysis supplies yet another reason why
the petition should be denied.
29
CONCLUSION
For these reasons, the petition for a writ of certiorari should be
denied.
Respectfully submitted,
STEPHEN CASSIDY
Respondent)
Alege VA
Wages Public Defender
agers, sistant Public Defender
Office of “Chief Public Defender
121 Elm Street,
New Haven, CT 06501
Tel. (203) 789-7477
Counsel of Record:
G. DOUGLAS NASH
30
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.