# Petition for Writ of Certiorari — Jones v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1683%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 513 U.S. 817 ## Text Supreme Court, U.S. FILED 931961 JUN - 8 1994 No. 93- ee cer In the Supreme Court of the Hnited States OCTOBER TERM, 1993 LESTER V. JONES, Petitioner, Vv. UNITED STATES OF AMERICA, Respondent. Petition for Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit PETITION FOR WRIT OF CERTIORARI Stephen H. Sachs, Counsel of Record Mark D. Cahn Bryan H. Wildenthal WILMER, CUTLER & PICKERING 2445 M Street, N.W. Washington, D.C. 20037-1420 (202) 663-6000 June 8, 1994 ied —- - f Sn Sn mo a _ a of oa he at ea oo) See 95 a Laie f va < _ Saye # « = ae. a eS ’ rr =e at ~—s - » ' ~ re rt 4 - QUESTIONS PRESENTED 1. Whether a defendant in a criminal trial is entitled upon request, under the Fifth Amendment due process clause and the Sixth Amendment right to jury trial, to have the trial court explain to the jury the meaning of the constitutional principle that a defendant may not be convicted except upon proof beyond a reasonable doubt. 2. Whether a defendant in a criminal trial is entitled upon request, under the Fifth Amendment due process clause, the Sixth Amendment right to jury trial, and the Sixth Amendment right to counsel, to present appropriate arguments to the jury, through counsel, on the meaning of the constitutional principle that a defendant may not be convicted except upon proof beyond a reasonable doubt. QUESTIONS PRESENTED TABLE OF CONTENTS TABLE OF CONTENTS CONSTITUTIONAL PROVISIONS INVOLVED STATEMENT OF THE CASE I. PETITIONER’S FIFTH AND SIXTH AMENDMENT RIGHTS WERE VIOLATED BY THE TRIAL COURT’S REFUSAL TO EXPLAIN THE REASONABLE DOUBT STANDARD TO THE JURY .... PETITIONER’S FIFTH AND SIXTH AMENDMENT RIGHTS WERE VIOLATED BY THE TRIAL COURT’S REFUSAL TO PERMIT PETITIONER’S COUNSEL TO PRESENT ANY MEANINGFUL ARGUMENT TO THE JURY ON THE MEANING OF THE REASONABLE ee i FF £ FF Vers FF es ky *. Il. THE LOWER FEDERAL AND STATE COURTS ARE DIVIDED BY A DEEP, : LONGSTANDING CONFLICT ON THE ISSUE OF EXPLAINING REASONABLE DOURT TO WERE... .555....-. 19 IV. THIS COURT’S RECENT DECISION IN VICTOR V. NEBRASKA UNDERSCORES THAT THE ISSUES PRESENTED ARE RIPE FOR CONSIDERATION BY THIS PMS Sry Ee ee 24 nnn ..6 5 ae ee ee 29 | Ms ee la 1. Unpublished opinion per curiam of the Court of Appeals, United States v. Jones, No. 92-5661 (4th Cir. April 13, 1994) ...... la 2. Unpublished order of the Court of Appeals, United States v. Jones, No. 92-5661 (4th Cir. June 7, 1993) (en banc) ......... Ta = Unpublished judgment of conviction and sentence of the District Court, United States v. Jones, No. MJG-90-0405 (D. Md. i 8 eee AN Orr re ree 9a 4. Unpublished opinion and order of the District Court, United States v. Jones, No. MJG-90-0405 (D. Md. Nov. 12, 1992)... 15a a 3. Unpublished order of the District Court, United States v. Jones, No. MJG-90-0405 (D. BEG, Fame F5; MO oS 6S. he. 19a 6. Original Indictment, United States v. Jones, No. MJG-90-0405 (Oct. Sr 2la y Superseding Indictment, United States v. Jones, No. MJG-90-0405 (March 21, he ee 24a 8. Excerpt of charging conference at first trial before Judge Garbis (July 15, 1991) CNP es SG 29a 9. Excerpt of petitioner’s counsel’s closing argument at first trial before Judge Garbis Quly 22, 1991) (Tr. at 1296)........... 30a 10. Excerpt of petitioner’s counsel’s opening statement at second trial before Judge Maletz (April 2, 1992) (Tr. at 45-46) ..... 3la 11. _ Petitioner’s requested jury instruction on reasonable doubt at second trial before Judge Maletz (April 9, 1992)........... 32a 12. Excerpt of charging conference at second trial before Judge Maletz (April 16, 1992) Gee is,.o2. 4, 35a 13. Excerpt of petitioner’s counsel’s closing argument at second trial before Judge Maletz (April 20, 1992) (Tr. at 1516-17) ... 42a iv 14. Excerpt of proceedings at second trial before Judge Maletz (jury verdict) (April 22, 1992) (Tr. at 1618-22) ........ 43a 15. Excerpts from manuscript of Jon O. Newman, Beyond “Reasonable Doubt,” 68 N.Y.U. L. REV. _ (1994) (forthcoming) (manuscript OS 1-6, GE, SD bc 0 SOUS ide wees . 48a ees TABLE OF AUTHORITIES Pages CASES Arizona v. Fulminante, 499 U.S. 279 (1991) ....... 8 Barnes v. State, 532 So. 2d 1231 (Miss. 1988) ..... 23 Batson v. Kentucky, 476 U.S. 79 (1986) .......... 8 Blatt v. United States, 60 F.2d 481 (3d Cir. 1932) ... 20 Brown vy. State, 565 So. 2d 304 (Fla. 1990), cert. denied, 498 U.S. 992 (1990) ............ 23 Byrd v. Commonwealth, 825 S.W.2d 272 ee a ee a ES wo erd.e-« « 23 City of Minot v. Rubbelke, 456 N.W.2d 511 Ee 23 Colgrove v. Battin, 413 U.S. 149 (1973) ......... 25 Collins v. State, 854 P.2d 688 (Wyo. 1993) ....... 23 Commonwealth v. Costley, 118 Mass. 1 (1875) ..... 26 Commonwealth v. Gwaltney, 387 A.2d 848 OE ee eo 18 Commonwealth v. McLeod, 326 N.E.2d 905 ee 25-26 Commonwealth v. Stellberger, 515 N.E.2d 1207 Ey 22 Commonwealth v. Webster, 59 Mass. (5 Cush.) 295 (1850), overruled in part on other grounds by Commonwealth v. McLeod, 326 N.E.2d 905 Ss SOT a o'0 Woe bole 6 PO b's b's 6 0ce es 25 Commonwealth v. Young, 317 A.2d 258 (Pa. 1974) .. 22 Cooper v. Commonwealth, 345 S.E.2d 775 CU Ms SE ad oe Bd oe do eek es 6 OR 23 Frazier v. Heebe, 482 U.S. 641 (1987) .......... 14 Friedman v. United States, 381 F.2d 155 Gere Cs Bee 6 oe OS ee Fe STS es a 20 Geesa v. State, 820 S.W.2d 154 (Tex. Ct. Crim. RN TIPE 6.06 6866608 CATERER s 8 22 Gideon v. Wainwright, 372 U.S. 335 (1963) ..... 8, 16 Herring v. New York, 422 U.S. 853 (1975) ..... 17-18 Holland v. United States, 348 U.S. 121 (1954) ..... 28 Hopt v. Utah, 120 U.S. 430 (1887) .......... 25-27 In re Winship, 397 U.S. 358 (1970) .... 68, 14, 25, 28 Jackson v. Virginia, 443 U.S. 307 (1979) .. 7, 9, 14, 28 Lansdowne v. State, 412 A.2d 88 (Md. 1980) .. . . 12, 22 cat OP air hd cy RE a ie Risk kA tt Mahorney v. Wallman, 917 F.2d 469 ae aS Sn 6 Gi a 6 4 3a 20 McKaskle v. Wiggins, 465 U.S. 168 (1984) ........ 8 Means v. Sidiropolis, 401 $.E.2d 447 ES ea 23 Miles v. United States, 103 U.S. 304 (1881)..... 27-28 Mundy vy. United States, 176 F.2d 32 Se ae ee ee a 21 Murphy v. Holland, 776 F.2d 470 (4th Cir. 1985), vacated and remanded on other grounds, a Be ee ee 10-11 National Organization for Women, Inc. v. Scheidler, Be ee EE fo on 0 obs odie) we 20 Parker v. State, 849 P.2d 1062 (Nev. 1993), cert. eo 22 People v. Antommarchi, 604 N.E.2d 95 Pe Es ee hie eid 6. Blavty as 0:0 23 People v. Crandeil, 760 P.2d 423 (Cal. 1988), cert. denied, 490 U.S. 1037 (1989) ........... 23 People v. Langley, 466 N.W.2d 724 (Mich. App. RE oe a | a on fy 23 People v. Malloy, 434 N.E.2d 237 (N.Y. 1982), cert. denied, 459 U.S. 847 (1982) ............ 23 People v. Speight, 606 N.E.2d 1174 (fll. 1992) ..... 23 Perez v. Irwin, 963 F.2d 499 (2d Cir. 1992) .... 20-21 Rojem v. State, 753 P.2d 359 (Okla. Ct. Crim. App. 1988), cert. denied, 488 U.S. 900 (1988) .... 23 Schencks v. United States, 2 F.2d 185 CR Gs res SA ER 6 aS 21 State v. Antwine, 743 $.W.2d 51 (Mo. 1987), cert. denied, 486 U.S. 1017 (1988) ........... 22 State v. Bishop, 387 N.W.2d 554 (lowa 1986) ..... 22 State v. Bracy, 703 P.2d 464 (Ariz. 1985), cert. denied, 474 U.S. 1110 (1986) ........... 23 State v. Cotion, 602 P.2d 71 (idaho 1979) ........ 22 State v. Desrosiers, 559 A.2d 641 (R.I. 1989) ..... 22 State v. Dunn, 820 P.2d 412 (Kan. 1991) ........ 23 State v. Goodwin, 813 P.2d 953 (Mont. 1991), overruled on other grounds by State v. Turner, 864 P.2d 235 (Mont. 1993) ....... 23 State v. Jones, 245 Neb. 821, = N.W.2d ___, 1994 Neb. LEXIS 104 (1994) ........... 23 State v. Letendre, 579 ‘A.2d 1223 (N.H. 1990) ..... 23 State v. Manning, 409 S.E.2d 372 (S.C. 1991), cert. Gomied, 112 3. Ch. RHR TRS nc ects 23 ix State v. McMahon, 603 A.2d 1128 (Vt. 1992)...... 23 State v. Montgomery, 417 S.E.2d 742 (N.C. 1992) .. 22 State v. Scott, 757 P.2d 492 (Wash. 1988) ........ 22 State v. Tapley, 598 A.2d 1190 (Me. 1991) ....... 23 State v. Taylor, 410 So. 2d 224 (La. 1982) ....... 23 State v. Turner, 864 P.2d 235 (Mont. 1993) ....... 23 State v. Van Gundy, 594 N.E.2d 604 (Ohio 1992) ... 22 State v. Williams, 828 P.2d 1006 (Ore. 1992), cert. Gomi BES DB. Ce Ee Cle ek 23 Sullivan v. Louisiana, 113 S. Ct. 2078 (ie 3 6 ore iN 8 6-9, 14-15, 19, 25, 28 Taylor v. State, 330 So. 2d 91 (Fla. App. 1976) .... 18 Thompson v. Lynaugh, 821 F.2d 1054 (Sth Cir. 1987), cert. denied, 483 U.S. 1035 (1987) ........ 21 Tumey v. Ohio, 273 U.S. 510 (1927) ............ 8 United States v. Barrera-Gonzales, 952 F.2d 1269 S58 SS Sr eee ae ee 20 United States v. Blackburn, 992 F.2d 666 (7th Cir. 1993), cert. denied, 114 S. Ct. 393 (1993) ... 22 United States v. Cassiere, 4 F.3d 1006 gs Fe a Sr ee 21 United States v. Cronic, 466 U.S. 648 (1984) .... 16-17 United States v. Goodlett, 3 F.3d 976 I a hs ea a aoe 20 United States v. Ivic, 700 F.2d 51 (2d Cir. 1983), overruled on otner grounds by National Organization for Women, Inc. v. Scheidler, eo Rs Sy Ot re err ee ee are 20 United States v. Littlefield, 840 F.2d 143 (1st Cir. 1988), cert. denied, 488 UB. ee a bk Fee We ow 12, 14-15, 21 United States v. Nolasco, 926 F.2d 869 (9th Cir. 1991) (en banc), cert. denied, 112 S. Ct. 5S) Meee ck Ba KS ok eh 15, 20-21 United States v. Olmstead, 832 F.2d 642 (1st Cir. 1987), cert. denied, 486 US MU ON bak eK 10-11, 21 United States v. Pepe, 501 F.2d 1142 (i ie AOR oS. EE As oi cs ss 20 United States v. Pungitore, 910 F.2d 1084 (3d Cir. 1990), cert. denied, 111 S. Ct. 2009-11 GRIPE) Wn es he SEG i PRR OS 20 United States v. Reives, 15 F.3d 42 (4th Cir. 1994), cert. petition filed, 62 U.S.L.W. 3775 (April 18, 1994) (No. 93-1791) ........ 5, 10 United States v. Russell, 971 F.2d 1098 (4th Cir. 1992), cert. denied, 113 S. Ct. 1013 (1993) .. 4-5 xi u MO AS i BEE aD wink United States v. Sawyer, 443 F.2d 712 Sn RIN a's as the cc's wc ce coe 17-18 United States v. Taylor, 997 F.2d 1551 ES 21 United States v. Veltmann, 6 F.3d 1483 I es Ss oe 0 wo 20 United States v. Witt, 648 F.2d 608 EE EE 10, 21 Vasquez v. Hillery, 474 U.S. 254 (1986) .......... 8 Victor v. Nebraska, 114 S. Ct. 1239 Se ee 6, 9, 12-13, 24-25, 27-29 Wainwright v. Witt, 469 U.S. 412 (1985) ........ 25 Waller v. Georgia, 467 U.S. 39 (1984) ........... 8 Whiteside v. Parke, 705 F.2d 869 (6th Cir. 1983), cert. denied, 464 U.S. 843 (1983) ........ 20 Whitus v. Georgia, 385 U.S. 545 (1967) .......... 8 Williams v. United States, 271 F.2d 703 EE eee 22 Wills v. State, 620 A.2d 295 (Md. 1993) ......... 22 CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES U.S. COMNE, AMOR: 25.86 28 SRS CS passim Uae CE, SO. OS Fake ee eases passim 26 US Stee Cee a oe 0 eee EA BEN Ce ce s 2 20 U.S.C, 5 Tae GR aoe 6 25S Cote 2 oe Ua 6 Se tA ad oda oe aba e es 1 ae Us oe 6 6 4 eet eee 1 a. Cas. Ses Bes 6 STA RS 19 SUP. C8. BR. WD do ie ke Ge Bek a eS 1 OTHER AUTHORITIES FEDERAL JUDICIAL CENTER, PATTERN CRIMINAL Jurmy ThesTmucTIOns (1967)... ..6-00026. 13 Kerr, Norbert L., et al., Guilt Beyond a Reasonable Doubt: Effects of Concept Definition and Assigned Decision Rule on the Judgments of Mock Jurors, 34 J. PERSONALITY & SOCIAL POVCHIULOGT Bae COT a ikka Cam css wes 11 McBaine, J.P., Burden of Proof: Degrees of Belief, ae Gs Ba Ds eo hehe ee eee 13 lice caiaiaiiaiiiail Newman, Jon O., Beyond "Reasonable Doubt,” 68 N.Y.U. L. REV. _ (1994) (forthcoming) ie ek ho 6 hea ee ete CS 12-13 Note, Reasonable Doubt: To Define, or Not To Define, 90 COLUM. L. REV. 1716 (1990) ... 9-11 Strawn, David U. & Buchanan, Raymond W., Jury Confusion: A Threat to Justice, 59 Oo By Ge ee a a 11 XiV OPINIONS AND ORDERS BELOW The unpublished opinion per curiam of the United States Court of Appeals for the Fourth Circuit affirming petitioner’s conviction, dated April 13, 1994, is reprinted at App. la. This opinion is also available on LEXIS at 1994 U.S. App. LEXIS 7149, and on WESTLAW at 1994 WL 126775. The unpublished order of the court of appeals denying petitioner’s request for an en banc hearing, dated June 7, 1993, is reprinted at App. 7a. The unpublished judgment reflecting petitioner’s conviction and sentence, entered by the United States District Court for the District of Maryland on September 30, 1992, is reprinted at App. 9a. The unpublished opinion and order of the district court denying petitioner’s motion for bond pending appeal, dated November 12, 1992, is reprinted at App. 15a. The unpublished order of the district court ordering that petitioner be released from prison and serve out the remainder of his term under supervised probation, dated June 23, 1993, is reprinted at App. 19a. JURISDICTIONAL STATEMENT This Court has jurisdiction to review the judgment below by a writ of certiorari pursuant to 28 U.S.C. § 1254 (1988). The judgment of the court of appeals was rendered on April 13, 1994. App. la. This petition is therefore timely pursuant to 28 U.S.C. § 2101(c) (1988) and Sup. CT. R. 13. CONSTITUTIONAL PROVISIONS INVOLVED This case involves the construction of the Fifth Amendment’s guarantee that “[nJo person shall ... be deprived of life, liberty, or property, without due process of law," U.S. CONST. Amend. V, and the Sixth Amendment’s guarantees that “fijn all criminal prosecutions, the accused shall enjoy the right to . . . trial, by an impartial jury ... and [the right] to have the Assistance of Counsel for his defence," U.S. CONST. Amend. VI. STATEMENT OF THE CASE Petitioner Jones, then an attorney practicing in Harford County, Maryland, was indicted on October 18, 1990 on two counts of tax evasion for the tax years 1983 and 1984. On March 21, 1991, a superseding indictment added two counts of tax perjury relating to amended returns for 1983 and 1984 that petitioner filed in 1986. The superseding indictment .charged that petitioner intentionally failed to report approximately $120,000 and $170,000 in income in 1983 and 1984, respectively, in violation of 26 U.S.C. § 7201 (1988). The indictment further charged that petitioner intentionally understated his income in the amended returns filed in 1986, in violation of 26 U.S.C. § 7206(1) (1988). App. 21a-28a. Petitioner was tried to a jury before the Honorable Marvin J. Garbis, United States District Judge for the District of Maryland, in July 1991. Following a three- week trial, the jury deliberated for a full week but remained deadlocked on all four counts. Judge Garbis declared a mistrial and petitioner was retried in April 1992 before the Honorable Herbert N. Maletz, a retired judge of the United States Court of International Trade sitting by designation. The main issue at trial was whether petitioner intended to understate his income. The defense did not contest the existence (nor, essentially, the amount) of the understatement. Petitioner did not testify at his retrial, nor 2 Eh Felis teat aad eae SEU ae, Be did the defense call any witnesses. Petitioner’s entire defense was that the government had failed to carry its heavy burden of proving guilt beyond a reasonable doubt. At both his first and second trials, petitioner requested that the court instruct the jury on the meaning of the reasonable doubt standard. App. 29a, 32a-34a, 35a. Following Fourth Circuit precedent prohibiting such instructions, both Judges Garbis and Maletz refused to provide the requested instructions. App. 29a, 35a. Judge Garbis, however, expressed his personal agreement that an instruction explaining reasonable doubt should be required: I will go further, Mr. Sachs. I think that you are right. I think that - I am not suggesting that this case should ever get up to appeal. But if it did, I would hope that that would be reversible error not to give it. App. 29a. At petitioner’s retrial, Judge Maletz also refused to permit petitioner’s counsel to present any meaningful argument to the jury on the meaning of the reasonable doubt standard. App. 35a-39a.! On April 22, 1992, ' During the opening statement on retrial, counsel used without objection a brief, colloquial “baseball metaphor" to the effect that in a criminal case, unlike in baseball, “a tie doesn’t go to the runner. They got to throw us out by a mile." App. 31a. Judge Maletz permitted counsel to repeat this metaphor in closing argument, solely because it was not objected to in opening argument. App. 39a, 42a. At petitioner’s first trial, Judge Garbis had permitted petitioner’s counsel to explain the meaning of reasonable doubt during closing argument. App. 30a. following two days of deliberations, the jury at petitioner’s retrial convicted him on the two counts of tax evasion. Petitioner was acquitted on the two counts of filing false amended returns. App. 43a-47a. On September 30, 1992, petitioner was sentenced to eighteen months imprisonment, a $25,000 fine, and a $50 special assessment pursuant to 18 U.S.C. § 3013 (1988). App. 9a-14a.? On appeal, petitioner contended that his conviction should be reversed because his rights under the Fifth and Sixth Amendments were violated by the trial court’s refusal to explain the meaning of reasonable doubt to the jury and by the trial court’s refusal to permit petitioner’s counsel to present any meaningful argument to the jury on the meaning of reasonable doubt. A panel of the United States Court of Appeals for the Fourth Circuit affirmed petitioner’s conviction in an unpublished opinion per curiam dated April 13, 1994. App. la-6a.’ In affirming petitioner’s conviction, the panel relied on Fourth Circuit precedent holding that trial courts not only are not constitutionally required to explain the meaning of reasonable doubt to the jury, but are prohibited from doing so. App. 3a-6a.‘ The panel also cited Fourth Circuit ? Petitioner began serving his sentence on January 4, 1993. On June 23, 1993, the district court ordered petitioner released and permitted him to serve out the remainder of his term vader supervised probation. App. 19a-20a. As a result of his conviction, however, petitioner remains suspended from the practice of law. > On June 7, 1993, the full Fourth Circuit had denied petitioner’s request for an en banc hearing by a 10-2 vote (Widener and Murmaghan, JJ., dissenting). App. 7a-8a. * The Fourth Circuit has generally prohibited any explanation of reasonable doubt, except “when the jury is "demonstrably confused or (continued...) ee precedent holding that trial courts may prohibit defense counsel from presenting argument to the jury on the meaning of reasonable doubt. App. 6a. REASONS FOR GRANTING THE PETITION This case presents a constitutional issue that this Court has never squarely addressed: whether a criminal defendant is entitled upon request, especially in a trial where the sole defense is that the government has failed to sustain its burden of proving guilt beyond a reasonable doubt, to have the meaning of that concept explained to the jury.’ Petitioner’s right to such an explanation under the Fifth and Sixth Amendments was violated by the trial court’s refusal in this case to instruct the jury on the meaning of reasonable doubt, and by the trial court’s refusal to permit petitioner’s counsel to present any meaningful argument to the jury on the meaning of reasonable doubt. * (...continued) uncertain’ and requests such an instruction.” United States v. Russell, 971 F.2d 1098, 1100 (4th Cir. 1992) (citation omitted), cert. denied, 113 S. Ct. 1013 (1993). The Fourth Circuit recently abandoned even that exception to its rule, however, holding that an explanation should not be given even when the jury requests one. See United States v. Reives, 15 F.3d 42 (4th Cir. 1994) (affirming trial court’s refusal to provide any explanation despite explicit request from jury for “clarification as to ‘reasonable doubt’"), cert. petition filed, 62 U.S.L.W. 3775 (April 18, 1994) (No. 93-1791). 5 This issue is sometimes stated as whether reasonable doubt should be “defined” for the jury. Petitioner seeks not merely a “definition” in the narrow dictionary sense, however, but a practical, common-sense explanation to convey to lay jurors the meaning of this legal term of art. This Court’s recent decision in Sullivan v. Louisiana, 113 S. Ct. 2078 (1993), held that erroneous definitions of reasonable doubt can never be treated as harmless error. This zero-tolerance rule cannot be squared with the reality, as demonstrated by empirical evidence, practical experience, and common sense, that juries deprived of any explanation of reasonable doubt will routinely misdefine it for themselves. Sullivan underscores the necessity of explaining reasonable doubt to the jury in order to vindicate the constitutional right to jury trial itself. The lower federal and state courts are deeply divided over the issue of explaining reasonable doubt to the jury. The ripeness of this issue for resolution by this Court is further underscored by this Court’s recent decision in Victor v. Nebraska, 114 S. Ct. 1239 (1994), which referred briefly to the issue in dicta but did not explore its ramifications or resolve its application to the type of case presented here. I. PETITIONER’S FIFTH AND SIXTH AMENDMENT RIGHTS WERE VIOLATED BY THE TRIAL COURT’S REFUSAL TO EXPLAIN THE REASONABLE DOUBT STANDARD TO THE JURY In the landmark case of In re Winship, 397 U.S. 358 (1976), this Court held that a criminal defendant may not constitutionally be convicted except upon proof beyond a reasonable doubt. This Court found this requirement implicit in the guarantee of due process of law under the Fifth and Fourteenth Amendments. Jd. at 361-64. As this Court declared, “[iJt is critical that the moral force of the criminal law not be diluted by a standard of proof that 6 eS ENE is Silitedd tte A ih Steak eh ip Gir te, Y leaves people in doubt whether innocent men are being condemned." Id. at 364. The reasonable-doubt standard ... is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence--that bedrock “axiomatic and elementary" principle whose “enforcement lies at the foundation of the administration of our criminal law." Id. at 363 (citation omitted). Winship made clear that a criminal trial jury must, at the very least, be told to apply this vitally important standard of proof. As this Court subsequently held, however, [t]he Winship doctrine requires more than simply a trial ritual. A doctrine establishing so fundamental a substantive constitutional standard must also require that the factfinder will rationally apply that standard to the facts in evidence. Jackson v. Virginia, 443 U.S. 307, 316-17 (1979) (emphasis added). Only by fully and accurately explaining this crucial concept to the jury can the promise of Winship and Jackson be fulfilled. This constitutional imperative was underscored by this Court’s decision in Sullivan v. Louisiana, 113 S. Ct. 2078 (1993), which held that a constitutionally erroneous jury instruction on reasonable doubt can mever be treated as harmless error. To hold otherwise, this Court explained, would eviscerate not only 7 the right to due process, but the Sixth Amendment right to jury trial itself. As Sullivan noted, “[iJt is self-evident. . . that the Fifth Amendment requirement of proof beyond a reasonable doubt [recognized in Winship] and the Sixth Amendment requirement of a jury verdict are interrelated." Id. at 2081. Where the jury has been improperly instructed on the meaning of reasonable doubt, “there has been no jury verdict within the meaning of the Sixth Amendment." Id. at 2082.6 Indeed, this Court, by refusing to apply harmless-error analysis, has singled out the reasonable doubt standard for a level of protection reserved for only a handful of other constitutional guarantees. ’ The central insight of Sullivan is that a failure to properly explain the meaning of reasonable doubt to the jury "“vitiates all the jury’s findings." Jd. at 2082 * The traditional harmless-error inquiry—“whether the guilty verdict actually rendered in this trial was surely unattributable to the error,” id. at 2081 (emphasis in original)—is thus rendered impossible. An appellate court could only engage in improper speculation as tc whether a properly instructed jury “would surely have found [the defendant] guilty beyond a reasonable doubt.” Id. at 2082 (emphasis in original). ra ’ These include the rights to counsel, see Gideon v. Wainwright, 372 U.S. 335 (1963), to self-representation, see McKaskle v. Wiggins, 465 U.S. 168, 177-78 n.8 (1984), to be tried in public, see Waller v. Georgia, 467 U.S. 39, 49-50 & n.9 (1984), or before an impartial judge, see Tumey v. Ohio, 273 U.S. 510, 535 (1927), and not to be indicted or convicted by a grand or petit jury chosen with racial bias, see Batson v. Kentucky, 476 U.S. 79, 100 (1986); Vasquez v. Hillery, 474 U.S. 254, 261-62 (1986); Whitus v. Georgia, 385 U.S. 545, 549- 50 (1967). By contrast, even so fundamental a right as the Fifth Amendment’s prohibition of coerced confessions has been held to be subject to harmless-error analysis. See Arizona v. Fulminante, 499 U.S. 279, 311-12 (1991). (emphasis in original). This is because the reasonable doubt standard is the lens through which the jury views all the evidence in a criminal trial. Sullivan sets forth a rule of zero tolerance for constitutional defects in that lens due to a faulty definition of the reasonable doubt standard. Sullivan’s logic applies with equal force to a lens that is out of focus due to the disparate and inaccurate understandings of the reasonable doubt standard by jurors who receive no explanation of that standard at all. In either case the lens through which the jury views the evidence is flawed. The mere unexplained recitation of the reasonable doubt standard amounts to no more than the empty "trial ritual” condemned by Jackson, 443 U.S. at 316-17. Empirical evidence, practical experience, and common sense all compel the conclusion that lay jurors, if deprived of an explanation, will indeed be severely handicapped in trying to “rationally apply that standard to the facts in evidence." Jackson, 443 U.S. at 317. As Justice Ginsburg recently noted: the argument for defining [reasonable doubt] is strong. While judges and lawyers are familiar with the reasonable doubt standard, the words “beyond a reasonable doubt" are not self-defining for jurors. Several studies of jury behavior have concluded that “jurors are often confused about the meaning of reasonable doubt," when that term is left undefined. Victor v. Nebraska, 114 §. Ct. 1239, 1253 (1994) (Ginsburg, J., concurring in part and concurring in the judgment), quoting Note, Reasonable Doubt: To Define, or 9 Not To Define, 90 CoLUM. L. REV. 1716, 1723 (1990). As Judge Anderson of the Ninth Circuit Court of Appeals has observed, The phrase “proof beyond a reasonable doubt" is not a self-defining term. It is a nebulous and generalized concept. It is the core feature of every criminal trial. In my view, based upon my experiences, jurors do derive a benefit from a proper definition. It furnishes at least some standard against which they can measure the proof in a particular case. A proper definition furnishes the jury with a concept which they can relate to their own decision-making processes in their daily personal and business lives. United States v. Witt, 648 F.2d 608, 612 (9th Cir. 1981) (Anderson, J., concurring). Indeed, the arguments typically asserted against defining or explaining reasonable doubt are premised on two conflicting rationales. On the one hand, it has been argued that the meaning of reasonable doubt is so self- evident, even to laypeople, that no further elaboration is needed.* As Justice Ginsburg and Judge Anderson have * See, e.g., United States v. Reives, 15 F.3d 42, 45 (4th Cir. 1994), cert. petition filed, 62 U.S.L.W. 3775 (April 18, 1994) (No. 93-1791), quoting Murphy v. Holland, 716 F.2d 470, 475 (4th Cir. 1985), vacated and remanded on other grounds, 475 U.S. 1138 (1986) (“the term has a ’self-evident meaning comprehensible to a lay juror’"); United States v. Olmstead, 832 F.2d 642, 645 (ist Cir. 1987), cert. denied, 486 U.S. 1009 (1988) (same). 10 suggested, this facile premise cannot withstand scrutiny. Empirical studies confirm that the likelihood of jury confusion is disturbingly high. Such studies indicate that, despite this Court’s zero tolerance tor constitutionally flawed definitions of reasonable doubt, lay jurors deprived of any explanation of that concept will routinely define it for themselves in ways that run afoul of the Constitution. At the same time, it has been suggested that reasonable doubt is so difficult to define, even by judges and lawyers, that attempts to do so lead inevitably to confusion and misstatement of the concept.’® Thus, the Fourth Circuit’s blanket proscription rests on _ the implausible assumption that lay jurors can be expected to properly comprehend, without any explanation or ® One study of potential jurors who were given a reasonable doubt instruction with no definition or explanation found that 23 percent believed that if the circumstantial evidence was equally balanced between guilt and innocence, the defendant should be convicted. David U. Strawn & Raymond W. Buchanan, Jury Confusion: A Threat to Justice, 59 JUDICATURE 478, 480-82 (1976), cited in Note, supra, at 1723 & n.69. Another study of over 600 college students acting as mock jurors, some of whom were given a definition of reasonable doubt and some not, found that “the meaning of the concept of reasonable doubt [was] not obvious to” the subjects and that “[tJhere was considerably greater individual uncertainty and group disagreement when reasonable doubt was undefined, and more hung juries resulted.“ Norbert L. Kerr, et al., Guilt Beyond a Reasonable Doubt: Effects of Concept Definition and Assigned Decision Rule on the Judgments of Mock Jurors, 34 J. PERSONALITY & SOCIAL PSYCHOLOGY 282, 292 (1976), cited in Note, supra, at 1723 & n.66. 0 See, e.g., Olmstead, 832 F.2d at 645 ("the term has eluded clear definition"); Murphy, 776 F.2d at 475 ("[ijnstead of improvement, the most likely outcome of attempts to define reasonable doubt is unnecessary confusion and a constitutionally impermissible lessening of the required standard of proof”). 11 illustration, a legal term of art that judges and lawyers struggle to define. But see, e.g., Lansdowne v. State, 412 A.2d 88, 93 (Md. 1980) (noting that since even experienced judges “have difficulty construing the meaning of reasonable doubt’ . . . [sJome unskilled and untutored lay jurors are at least as likely ... to misconstrue the meaning"). Judge Torruella of the First Circuit Court of Appeals, noting the “obvious contradiction" of these arguments, has concluded: What to me is self-evident is that we would not be engrossed in this debate if the meaning of “proof beyond a reasonable doubt" were as prone to common understanding as is claimed. United States v. Littlefield, 840 F.2d 143, 151 (ist Cir. 1988) (Torruella, J., concurring), cert. denied, 488 U.S. 860 (1988)." Empirical evidence and experience demonstrate, as discussed above, that reasonable doubt is a legal term of art that does not have a self-evident meaning to jurors, and that judges are capable of devising explanations of the concept that will. greatly aid the jury’s comprehension. '! Chief Judge Newman of the Second Circuit Court of Appeals, criticizing as “curious” the attitude of those courts, like the Fourth Circuit below, which have argued against any explanation of reasonable doubt, notes that he finds it “rather unsettling that we are using a formulation that we believe will become less clear the more we explain it.” Jon O. Newman, Beyond “Reasonable Doubt,” 68 N.Y.U. L. REv. _, ___ (1994) (manuscript at 8, see App. 51a-52a), quoted in Victor, 114 S. Ct. at 1253 (Ginsburg, J., concurring in part and concurring in the judgment). 12 I iii ss we ene ee Both Justice Ginsburg and Chief Judge Newman of the Second Circuit Court of Appeals, for example, have advocated use of the instruction proposed in 1987 by the Federal Judicial Center. See Victor, 114 S. Ct. at 1253 (Ginsburg, J., concurring in part and concurring in the judgment); Jon O. Newman, Beyond “Reasonable Doubt,” 68 N.Y.U. L. REV. __, ___ (1994) (manuscript at 19-20, see App. 52a-54a); FEDERAL JUDICIAL CENTER, PATTERN CRIMINAL JURY INSTRUCTIONS 17-18 (1987) (instruction 21). Even if the concept of reasonable doubt were inherently difficult to define, that would hardly justify courts in abandoning the effort altogether. As one scholar has observed: Difficulties of the task of describing a degree of belief should not deter the legal profession from attempting a common sense description of that degree. As is aptly said by Right Hon. A.J. Balfour in ... Foundations of Belief (p. 234): “If we have to find our way over difficult seas and under murky skies without compass or chronometer, we need not on that account allow the ship to drive at random." J.P. McBaine, Burden of Proof: Degrees of Belief, 32 CAL. L. REV. 242, 260 (1944). 2 Petitioner does not suggest that this Court should dictate any single explanation of reasonable doubt to this Nation’s courts. But for the reasons discussed herein, the Fifth Amendment due process clause and the Sixth Amendment jury trial guarantee require that some thorough and balanced explanation of that concept be provided when requested by the defendant (or by the jury itself). 13 It would be incongruous to guard only against distortions of the reasonable doubt standard resulting from judicial explanations overtly flawed on the surface, while ignoring the misapplications of the standard that necessarily result from refusing to give any explanation at all. The damage to the defendant’s constitutional rights is the same in either case. Such a narrow, blinkered approach renders Winship, Jackson, and Sullivan a triumph of form over substance. Put simply, the rule followed by the Fourth Circuit encourages systematic, widespread constitutional error in the jury room, at the same time that it attempts to sweep such error under the rug and immunize it from review. In sum, providing the jury with an explanation of reasonable doubt is essential to vindicate both the right to due process of law under the Fifth Amendment and the right to trial by jury under the Sixth Amendment." As Judge Torruella has concluded, “the failure to grant an instruction explaining the term ’proof beyond a reasonable doubt’ is an error of constitutional dimension, striking at '? At the very least, this Court should reject the holdings of those courts, like the Fourth Circuit, which rigidly prohibit any explanation. This Court should, at the very least, hold that the Constitution requires that trial courts enjoy the discretion to provide an explanation. Alternatively, this Court should require federal trial courts to explain the concept of reasonable doubt, or should at least protect their discretion to do so, pursuant to this Court’s inherent supervisory authority over the lower federal courts. See, e.g., Frazier v. Heebe, 482 U.S. 641, 645-46 (1987) (exercising supervisory power to strike down federal district court rule against admission to its bar of attorneys not residing or maintaining offices within the state where the district court sits). 14 the very heart of the presumption of innocence.” Littlefield, 840 F.2d at 151 (Torruella, J., concurring). Due process principles require that guilt be established beyond a reasonable doubt. Likewise, due process principles require a judge to define that standard adequately for the jury--the group charged with the solemn task of determining guilt or innocence. United States v. Nolasco, 926 F.2d 869, 874 (9th Cir. 1991) (en banc) (Wiggins, J., joined by Pregerson, Alarcon, and Fernandez, JJ., dissenting), cert. denied, 112 S. Ct. 111 (1991). Finally, it is clear under Sullivan, supra, that, if the trial court’s refusal io explain reasonable doubt to petitioner’s jury was error, such error cannot properly be subjected to harmless-error analysis. Even if harmless error analysis were appropriate, the error in this case could not be deemed harmless beyond a reasonable doubt. Il. PETITIONER’S FIFTH AND SIXTH AMENDMENT RIGHTS WERE VIOLATED BY THE TRIAL COURT’S REFUSAL TO PERMIT PETITIONER’S COUNSEL TO PRESENT ANY MEANINGFUL ARGUMENT TO THE JURY ON THE MEANING OF THE REASONABLE DOUBT STANDARD The trial court compounded the constitutional error in this case by not only refusing to explain reasonable doubt to the jury itself, but also by refusing to permit petitioner’s counsel to present any meaningful argument to 15 the jury on the meaning of reasonable doubt.“ Even if this Court were to deem it constitutionally acceptable for the trial court not to explain reasonable doubt to the jury, this Court should hold, at a bare minimum, that defense counsel must be permitted to include an accurate and proper explanation or illustration of reasonable doubt in arguments to the jury. Refusing to permit such arguments by counsel not only violates the Fifth Amendment guarantee of due process of law and the Sixth Amendment right to jury trial, by obstructing the jury’s comprehension of the reasonable doubt standard implicit in that guarantee,’ it also violates the Sixth Amendment right to counsel. Argument by counsel is an essential conduit for the enforcement of constitutional guarantees like the reasonable doubt standard. As this Court has held: An accused’s right to be represented by counsel is a fundamental component of our criminal justice system. Lawyers in criminal cases “are necessities, not luxuries." Their presence is essential because they are the means through which the other rights of the person on trial are secured. United States v. Cronic, 466 U.S. 648, 653 (1984) (footnote omitted), quoting Gideon v. Wainwright, 372 U.S. 335, 344 (1963). 4 See supra at 3 & note 1. 'S The argument here is essentially the same as that for requiring the court to explain reasonable doubt to the jury. See supra at 6-15. 16 inci A key component of the right to counsel is the right to have counsel present argument to the jury. This Court has quoted approvingly Lord Eldon’s aphorism that “truth is best discovered by powerful statements on both sides of the question.” See Cronic, 466 U.S. at 655. "More specifically," this Court has declared, the right to the assistance of counsel has been understood to mean that there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary factfinding process that has been constitutionalized in the Sixth and Fourteenth Amendments... . There can be no doubt that closing argument for the defense is a basic element of the adversary factfinding process in a criminal _ trial. Accordingly, it has universally been held that counsel for the defense has a right to make a closing summation to the jury, no matter how strong the case for the prosecution may appear to the presiding judge. Herring v. New York, 422 U.S. 853, 857-58 (1975)."° ‘© This Court held in Herring that a defendant has a constitutional right to have his counsel present closing argument even in a bench trial. Id. at 859. See also United States v. Sawyer, 443 F.2d 712, 713 n.5 (D.C. Cir. 1971) ("The defendant’s right to present argument is part of his Sixth Amendment right to counsel and to jury trial."). 17 Furthermore, while “[tJhe trial court has broad discretion in controlling the scope of closing argument{,'’] [tJhat discretion is abused . . . if the court prevents defense counsel from miaking a point essential to the defense." United States v. Sawyer, 443 F.2d 712, 713 (D.C. Cir. 1971) (finding it error to prevent defense counsel from explaining to the jury the meaning of the legal term "inference" and how to distinguish it from the term presumption"), cited with approval by Commonwealth v. Gwaltney, 387 A.2d 848, 851 (Pa. 1978). In a passage with striking applicability to the instant case, where petitioner’s sole defense was that the prosecution failed to carry its burden of proof, the Sawyer court noted that "if a single point of law is the linchpin for the defense, there is every reason to permit defense counsel to state the point as emphatically as possible." 443 F.2d at 714. See also, e.g., Taylor v. State, 330 So. 2d 91, 93 (Fla. App. 1976): [I]t is entirely appropriate for an attorney in closing argument to relate the applicable law to the facts of the case. ... An attorney should therefore be allowed to explain to the jury those instructions which are relevant to his theory of the case and to emphasize any portion of .the jury charge that he feels to be pertinent. '7 It is well established that a trial judge has discretion to control the duration, scope, and content of counsel’s arguments. There is no right to present arguments which misstate the law or meander on at excessive length. See, e.g., Herring, 422 U.S. at 862. But as discussed in text below, that discretion cannot constitutionally extend to denying defense counsel the opportunity to present a thorough, appropriate argument on the meaning of the reasonable doubt standard. 18 In sum, given the central constitutional importance of the reasonable doubt standard, and the intolerable likelihood that a jury uninformed on the meaning of that standard will be confused and misguided in applying it, supra at 9-14, defense counsel cannot, consistently with the Fifth and Sixth Amendments, be denied the opportunity to present a thorough, appropriate argument on the meaning of that standard." Il THE LOWER FEDERAL AND STATE COURTS ARE DIVIDED BY A _ DEEP, LONGSTANDING CONFLICT ON THE ISSUE OF EXPLAINING REASONABLE DOUBT TO THE JURY The existence of a conflict among the federal Courts of Appeals on an important legal issue has always been viewed as a compelling reason for this Court to grant a petition for certiorari. See, e.g., Sup. Cr. R. 10.1(a). This case presents a textbook example of such a conflict. While several circuits, like the Fourth Circuit below, condemn or discourage attempts to explain the concept of reasonable doubt, a majority of the circuits either require that the concept be explained, or encourage the use of some explanation while leaving the decision to the discretion of the trial courts. Furthermore, as with the trial court’s refusal to expiain reasonable doubt to the jury, this error cannot, under Sullivan, supra, be subjected to harmless-error analysis, and even if harmless-error analysis were appropriate, the error in this case could not be deemed harmless beyond a reasonable doubt. 19 The Third,’® Eighth,” and Tenth” Circuits have long required that trial courts explain the meaning of reasonable doubt to the jury upon request by the defendant. The Second,” Sixth,” Ninth,“ and Eleventh” Circuits leave the issue to the discretion of the trial courts, while approving, and in some cases strongly encouraging, the use of an explanation. The Second Circuit, for '9 See Blatt v. United States, 60 F.2d 481 (3d Cir. 1932). Cf. United States v. Pungitore, 910 F.2d 1084, 1145 n.87 (3d Cir. 1990), cert. denied, 111 S. Ct. 2009-11 (1991) (noting in dicta the Fourth and Seventh Circuits’ anti-definition rule). ® See Friedman v. United States, 381 F.2d 155, 160 (8th Cir. 1967). 21 See United States v. Pepe, 501 F.2d 1142, 1143 (10th Cir. 1974). Cf Mahorney v. Wallman, 917 F.2d 469, 473 (10th Cir. 1990) (suggesting in dicta that “a defendant may not be entitled to an instruction defining the fundamental standard of ‘reasonable doubt,’” without citing or purporting to undermine Pepe); United States v. Barrera-Gonzales, 952 F.2d 1269, 1271-72 (10th Cir. 1992) (stating that jury instructions must “provide[] the jury with ample understanding of the issues and standards applicable,” citing Pepe with approval, and citing a particular explanation of reasonable doubt as “the preferable definition of reasonable doubt"). 2 See Perez v. Irwin, 963 F.2d 499, 502 (2d Cir. 1992); United States v. Ivic, 700 F.2d 51, 69 (2d Cir. 1983), overruled on other grounds by National Organization for Women, Inc. v. Scheidler, 114 S. Ct. 798 (1994). ® See United States v. Goodlett, 3 F.3d 976, 979 (6th Cir. 1997); Whiteside v. Parke, 705 F.2d 869, 872-73 (6th Cir. 1983), cert. denied, 464 U.S. 843 (1983). * See United States v. Nolasco, 926 F.2d 869, 872 (9th Cir. 1991) (en banc), cert. denied, 112 S. Ct. 111 (1991) (expressly rejecting Fourth, Fifth, and Seventh Circuit cases “discourag[ing] or even condemn{ing] the us: of reasonable doubt definitions”). % See United States v. Veltmann, 6 F.3d 1483, 1492 (11th Cir. 1993). 20 example, has described one traditional explanation as “the preferable way of expressing the notion of reasonable doubt." Perez v. Irwin, 963 F.2d 499, 502 (2d Cir. 1992). The Ninth Circuit, in an en banc decision, has declared that "’a proper definition [of reasonable doubt] is always appropriate.’" United States v. Nolasco, 926 F.2d 869, 872 (9th Cir. 1991) (en banc), cert. denied, 112 S. Ct. 111 (1991), quoting United States v. Witt, 648 F.2d 608, 611 (9th Cir. 1981). Furthermore, four of the eleven judges in Nolasco went even further and contended, as petitioner does here, that an explanation of reasonable doubt is constitutionally required. See 926 F.2d at 873-75 (Wiggins, J., joined by Pregerson, Alarcon, and Fernandez, JJ., dissenting). The First, Fifth,?” and District of Columbia” Circuits discourage attempts to explain reasonable doubt but also appear to leave the issue to the discretion of the % See United States v. Cassiere, 4 F.3d 1006, 1024 (ist Cir. 1993) ("the district court [is] in the best position to determine whether, and if so how, to define reasonable doubt"); United States v. Olmstead, 832 F.2d 642, 644-46 (lst Cir. 1987), cert. denied, 486 U.S. 1009 (1988). But see United States v. Littlefield, 840 F.2d 143, 151 (ist Cir. 1988), cert. denied, 488 U.S. 860 (1989) (Torruella, J., concurring) (urging reconsideration of Olmstead and adoption of rule that providing explanation of reasonable doubt is constitutionally required). 27 See Thompson v. Lynaugh, 821 F.2d 1054, 1060-61 (Sth Cir. 1987), cert. denied, 483 U.S. 1035 (1987). % See United States v. Taylor, 997 F.2d 1551, 1557-58 (D.C. Cir. 1993). Taylor marked an abrupt departure from the D.C. Circuit’s historic rule requiring that trial courts explain the meaning of reasonable doubt to the jury upon request by the defendant. See Mundy v. United States, 176 F.2d 32 (D.C. Cir. 1949); Schencks v. United States, 2 F.2d 185, 187 (D.C. Cir. 1924). 21 trial courts. Only the Seventh Circuit joins the Fourth Circuit below in rigidly prohibiting trial courts from explaining reasonable doubt to the jury.” Furthermore, the Fourth Circuit’s current disdain for explaining reasonable doubt, see supra at 4-5, note 4, is sharply at variance with the Fourth Circuit’s own historic recognition of the vital importance of such a practice. See Williams v. United States, 271 F.2d 703, 705 (4th Cir. 1959) ("it is the duty of the court to define and explain the meaning and application of ’reasonable doubt’"). State jurisdictions reflect this same division. The highest state court in Maryland, where petitioner’s federal trial took place, has strongly reaffirmed that jurisdiction’s longstanding requirement of explaining reasonable doubt to the jury. See Lansdowne v. State, 412 A.2d 88, 91-93 (Md. 1980) (emphasizing the vital constitutional role of the reasonable doubt standard); accord Wills v. State, 620 A.2d 295, 298 (Md. 1993). Idaho, Iowa, Massachusetts, Missouri, Nevada, North Carolina, Ohio, Pennsylvania, Rhode Island, Texas, and Washington also require that reasonable doubt be explained to the jury. New York *% See United States v. Blackburn, 992 F.2d 666, 668 (7th Cir. 1993), cert. denied, 114 S. Ct. 393 (1993). * See State v. Cotton, 602 P.2d 71, 74 (Idaho 1979); State v. Bishop, 387 N.W.2d 554, 560 (Iowa 1986); Commonwealth vy. Stellberger, 51S N.E.2d 1207 (Mass. App. 1987); State v. Antwine, 743 S.W.2d 51, 62-63 (Mo. 1987), cert. denied, 486 U.S. 1017 (1988); Parker v. State, 849 P.2d 1062, 1066 (Nev. 1993), cert. denied, 114 S. Ct. 570 (1993); State v. Montgomery, 417 S.E.2d 742, 748 (N.C. 1992); State v. Van Gundy, 594 N.E.2d 604, 606 (Ohio 1992); Commonwealth v. Young, 317 A.2d 258, 261-63 (Pa. 1974); State v. Desrosiers, 5S9 A.2d 641, 645 (R.I. 1989); Geesa v. State, 820 S.W.2d 154, 161-62 (Tex. Ct. Crim. App. 1991); State v. Scott, 757 P.2d 492, 495 n.5 (Wash. 1988). 22 courts have long employed explanations of reasonable doubt and are required to explain the concept if the jury so requests.*! Several other jurisdictions approve or strongly encourage the use of some explanation,” while still others disapprove explanations.* | As this summary demonstrates, the lower federal and state courts are deeply divided on this vital 31 See People v. Antommarchi, 604 N.E.2d 95, 98 (N.Y. 1992) ("for over 100 years we have approved language defining a reasonable doubt as one which a juror could, if called upon to do so, express or articulate"); People v. Malloy, 434 N.E.2d 237, 239 (N.Y. i982), cert. denied, 459 U.S. 847 (1982) (trial court must respond to jury request with meaningful supplemental instruction). 2 See People v. Crandell, 760 P.2d 423, 450 (Cal. 1988), cert. denied, 490 U.S. 1037 (1989); Brown v. State, 565 So. 2d 304, 307 (Fla. 1990), cert. denied, 498 U.S. 992 (1990); State v. Taylor, 410 So. 2d 224, 225 (La. 1982); State v. Tapley, 598 A.2d 1190, 1192 n.4 (Me. 1991); People v. Langley, 466 N.W.2d 724, 726 (Mich. App. 1991); State v. Goodwin, 813 P.2d 953, 961 (Mont. 1991), overruled on other grounds by State v. Turner, 864 P.2d 235 (Mont. 1993); State v. Jones, 245 Neb. 821, 832, | N.W.2d ___, 1994 Neb. LEXIS 104, at *20-*21 (1994); State v. Letendre, S79 A.2d 1223, 1224 (N.H. 1990); State v. Manning, 409 S.E.2d 372, 375 (S.C. 1991), cert. denied, 112 S. Ct. 1282 (1992). 3 See State v. Bracy, 703 P.2d 464, 479 (Ariz. 1985), cert. denied, 474 U.S. 1110 (1986); People v. Speight, 606 N.E.2d 1174, 1177 (ill. 1992); State v. Dunn, 820 P.2d 412, 416 (Kan. 1991); Byrd v. Commonwealth, 825 S.W.2d 272, 276 (Ky. 1992); Barnes v. State, 532 So. 2d 1231, 1235 (Miss. 1988); City of Minot v. Rubbelke, 456 N.W.2d 511, 514 (N.D. 1990); Rojem v. State, 753 P.2d 359, 368 (Okla. Ct. Crim. App. 1988), cert. denied, 488 U.S. 900 (1988); State v. Williams, 828 P.2d 1006, 1017 (Ore. 1992), cert. denied, 113 S. Ct. 171 (1992); State v. McMahon, 603 A.2d 1128, 1128-29 (Vt. 1992); Cooper v. Commonwealth, 345 S.E.2d 775, 777 (Va. App. 1986); Means v. Sidiropolis, 401 S.E.2d 447, 451 n.1 (W. Va. 1990); Collins v. State, 854 P.2d 688, 699 (Wyo. 1993). 23 constitutional issue, and need guidance and clarification from this Court. This constitutes a compelling reason why this Court should grant certiorari in this case. IV. THIS COURT’S RECENT DECISION IN VICTOR V. NEBRASKA UNDERSCORES THAT THE ISSUES PRESENTED ARE RIPE FOR CONSIDERATION BY THIS COURT In the consolidated cases of Victor v. Nebraska and Sandoval v. California, 114 S. Ct. 1239 (1994), this Court rejected claims that the trial courts involved had provided constitutionally erroneous instructions to the jury on reasonable doubt. Because the trial court in each case did provide an explanation of reasonable doubt, this Court was not presented, as it is here, with the issue of whether the Constitution requires such an explanation. This Court did state in dicta, however, that “the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course." Jd. at 1243. This Court did not otherwise explore the issue and did not address its ramifications in any particular context, such as that presented by petitioner’s case in which the sole defense offered at trial was that the prosecution failed to carry the burden of proving guilt beyond a reasonable doubt. Furthermore, the Victor dictum, by its very terms, sheds no light on petitioner’s related claim that his counsel should have been permitted to present appropriate arguments on the meaning of reasonable doubt. See supra at 15-19. The cursory nature of this dictum, an examination of this Court’s prior dicta relating to the issue (which demonstrate that this Court has never squarely resolved it), Justice Ginsburg’s concurring opinion in 24 Victor, and the particular context of petitioner’s case, all demonstrate that the issues presented are now eminently ripe for plenary consideration by this Court. First of all, the issues resented in the instant petition were neither raised nor resolved in Victor. As this Court has repeatedly held, mere dicta does not have any binding precedential force. See, e.g., Wainwright v. Witt, 469 U.S. 412, 422 (1985); Colgrove v. Battin, 413 U.S. 149, 158 (1973). As Justice Ginsburg observed in Victor, this Court has, in fact, never held that the concept of reasonable doubt is undefinable, or that trial courts should not, as a matter of course, provide a definition. Nor... have we ever held that the Constitution does not require trial courts to define reasonable doubt. 114 S. Ct. at 1253 (Ginsburg, J., concurring in part and concurring in the judgment). This Court in Victor cited Hopt v. Utah, 120 U.S. 430, 440-41 (1887), as support for-its dictum on defining reasonable doubt. The Hopt Court, however, was very much aware of the need to explain reasonable doubt to the jury, even a century before the constitutional nature of the issue was recognized and articulated in Winship and Sullivan. The Hopt Court criticized a Massachusetts court’s “definition” of “beyond a reasonable doubt” that merely restated the concept as "to a reasonable and moral certainty." See id. at 440, citing Commonwealth v. Webster, 59 Mass. (5 Cush.) 295, 320 (1850), overruled in part on other grounds by Commonwealth v. McLeod, 326 25 N.E.2d 905 (Mass. 1975). The Court then noted that the same Massachusetts court had said, that an instruction to the jury that they should be satisfied of the defendant’s guilt beyond a reasonable doubt, had often been held sufficient, without further explanation. Id., citing Commonwealth v. Costley, 118 Mass. 1 (1875). While opining that "[iJn many cases it may undoubtedly be sufficient," id. (emphasis added),** the Hopt Court stated: But in many instances, especially where the case is at all complicated, some explanation or illustration of the rule may aid in its full and just comprehension. As a matter of fact, it has been the general practice in this country of courts holding criminal trials to give such explanation or illustration. The * *The difficulty with this instruction is, that the words to a reasonable and moral certainty’ add nothing to the words "beyond a reasonable doubt’; one may require explanation as much as the other." Id. 3° The Court followed this observation with the statement: “It is simple, and as a rule to guide the jury is as intelligible to them generally as any which could be stated, with respect to the conviction they should have of the defendant’s guilt to justify a verdict against him." Jd. (emphasis added). The Court clearly did not mean to imply that the mere statement of the reasonable doubt “rule” is just as "intelligible" as any explanation of that rule. Rather, the Court meant only that the reasonable doubt rule is just as intelligible as any other brief “rule-type" statement of the proper burden of proof. In the passage immediately following, quoted below in text, the Court emphasized that “some explanation or illustration of the rule" would often help the jury. See id. (emphasis added). 26 rule may be, and often is, rendered obscure by attempts at definition, which serve to create doubts instead of removing them. But an illustration like the one given in this case, by reference to the conviction upon which the jurors would act in the weighty and important concerns of life, would be likely to aid them to a right conclusion, when an attempted definition might fail. Id. at 440-41 (emphases added). In sum, the Court in Hopt, while conceding that certain poorly phrased "definitions" of reasonable doubt migit tend to confuse rather than clarify, emphasized the value of providing an appropriate “explanation or illustration” of the concept to the jury.” One other piece of 19th-century dictum is also frequently cited with regard to this issue. In Miles v. United States, 103 U.S. 304 (1881), decided six years before Hopt, the Court commented that “[a]ttempts to explain the term ’reasonable doubt’ do not usually result in making it any clearer to the minds of the jury." Jd. at 312. The thrust of this dicta was largely contradicted by the later decision in Hopt, as the foregoing discussion illustrates. The Court in Miles was addressing a claim (which it rejected) that the definition provided in that case % It is not clear whether this Court in Victor intended to follow the Hopt Court’s distinction between a “definition” of reasonable doubt and an “explanation or illustration” of that concept. Cf supra at 5, note 5 (noting the distinction between these terms). 27 was erroneous, and thus was not confronted with the issue of whether any explanation at all was required.” Such century-old dicta cannot be given much weight in any event, in light of the subsequent sea changes in this Court’s reasonable doubt jurisprudence reflected in Winship, Jackson, and Sullivan. It was not established, prior to Winship, that the reasonable doubt standard itself is constitutionally required, so it is only to be expected that this Court’s prior decisions would be silent on whether an explanation of that concept is constitutionally required. And it was not at all clear, prior to Sullivan, how central the Sixth Amendment right to jury trial is to this issue. See supra at 7-9. In any event, this Court’s dictum in Victor cannot be viewed as dispositive on the facts of petitioner’s case. Petitioner’s entire defense was premised on the prosecution’s failure to establish his guilt beyond a reasonable doubt. In that context, it is difficult to overstate the importance of fully and properly explaining this constitutional guarantee to the jury. Furthermore, the Fourth Circuit below held not merely that an explanation of reasonable doubt need not be provided “as a matter of course," but that a trial court should never provide an explanation. That.is a far harsher rule than any suggested by the dictum in Victor. As set forth supra at 14, note 13, petitioner, while contending that an explanation of 7 This Court quoted the Miles dictum in Holland v. United States, 348 U.S. 121, 140 (1954), in the course of a passage devoted mainly to criticizing, as potentially confusing, the particular definition of reasonable doubt at issue there (which the Court ultimately upheld). Again, the issue of whether an explanation was required was not before the Court. 28 reasonable doubt is always required upon request, argues in the alternative that trial courts must, at the very least, enjoy the discretion to provide an explanation. Finally, the Victor dictum sheds no light on whether, as petitioner contends, defense counsel must be permitted to present argument to the jury on the meaning of reasonable doubt. See supra at 15-19. In sum, this Court, having never squarely addressed the fundamental issues presented by this case, should now grant certiorari, resolve the conflict in the lower courts, and provide clear and definitive guidance on these vital constitutional questions. CONCLUSION For the foregoing reasons, petitioner urges this Court to issue a writ of certiorari in this case. Respectfully submitted, Stephen H. Sachs, Counsel of Record Mark D. Cahn Bryan H. Wildenthal WILMER, CUTLER & PICKERING 2445 M Street, N.W. Washington, D.C. 20037-1420 (202) 663-6000 June 8, 1994 [1. Unpublished opinion per curiam of the Court of Appeals, United States v. Jones, No. 92-5661 (4th Cir. April 13, 1994)] UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ) v. ) No. 92-5661 ) LESTER V. JONES, ) Defendant-Appellant. ) ) Appeal from the United States District Court for the District of Maryland, at Baltimore. Herbert N. Maletz, Senior Judge, sitting by designation. (CR-90-405-MJG) Argued: December 10, 1993 Decided: April 13, 1994 la Before ERVIN, Chief Judge, WILKINS, Circuit Judge, and WILLIAMS, Senior United States District Judge for the Eastern District of Virginia, sitting by designation. Affirmed by unpublished per curiam opinion. COUNSEL ARGUED: Stephen Howard Sachs, WILMER, CUTLER & PICKERING, Washington, D.C., for Appellant. Joseph Lee Evans, Assistant United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Mark D. Cahn, WILMER, CUTLER & PICKERING, Washington, D.C., for Appellant. Richard D. Bennett, United States Attorney, Ira L. Oring, Assistant United States Attorney, Baltimorr, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. See I.0.P. 36.5 and 36.6. OPINION PER CURIAM: On April 23, 1992 Lester Jones was convicted of two counts of income tax evasion in violation of 26 U.S.C. § 7201. The jury found him not guilty of two counts of fraudulent filing of amended returns in violation of 26 U.S.C. § 7206(1). On September 30, 1992 Jones was sentenced to eighteen months imprisonment, a $25,000 fine and a $50 special assessment. Jones appeals his conviction solely on the basis that the court erred in refusing to instruct the jury on the meaning of “reasonable doubt." Finding no error, we affirm. I. Lester Jones, a Maryland attorney engaged in private practice, was randomly selected for an IRS audit in the spring of 1986. Revenue agent Joan Rowe investigated Jones’ tax returns and discovered that Jones had failed to report on his federal return approximately $120,000 in 1983 and $170,000 in 1984, resulting in a tax liability of approximately $135,000. The existence and the amount of the understatement are not contested by Jones; he claims, however, that he did not intend to underreport his income. Jones maintains that he gave all relevant information to his tax preparer, Ronald Dochter, who had boasted that he could dramatically reduce Jones’ tax obligations. Jones claims that the numerous double-countings and omissions on his returns were never brought to his attention by Dochter; Jones was preoccupied with the serious illness of his wife and with a 3a hectic, chaotic practice and therefore relied on his office staff and Dochter to prepare accurate returns. Jones was indicted by a grand jury on October 18, 1990 and his trial began on July 1, 1991. The jury in that trial was unable to reach a verdict and a mistrial was declared on July 30, 1991. Retrial began on April 1, 1992. Evidence at the retrial indicated that while Jones had reported an income of approximately $50,000 each year, he made expenditures for luxury items alone of $173,800 in 1983 and $237,000 in 1984. Jones also submitted several loan applications to banks during the period indicating his income to be between $150,000 and $200,000. Jones did not testify at his retrial. His entire defense was that the government failed to carry the burden of proving his intent beyond a reasonable doubt. Jones’ request that the court instruct the jury on the definition of reasonable doubt was denied. The district court restricted defense counsel’s ability to define reasonable doubt in his closing argument by permitting him to. merely repeat in closing a baseball analogy to reasonable doubt that he had made in his opening argument. In his opening argument, defense counsel stated this business of reasonable doubt is not just a matter of whether the scales tip a little bit one way or the other. It is not in this business, in the criminal business, a tie 4a doesn’t go to the runner. They got to throw us out by a mile. That is what proof beyond a reasonable doubt means. In closing, defense counsel reiterated his point by stating that “beyond a reasonable doubt means that it is it is [sic] close, if it is anywhere near close, the Government hasn’t made its case. They have to throw us out by a mile, to use a baseball metaphor." Jones argues that he was deprived of a fair trial because the district court refused to charge the jury on the definition of reasonable doubt and limited his closing argument in that respect. Il. The clear mandate of the Fourth Circuit is that district court judges should refrain from defining reasonable doubt. United States v. Ricks, 882 F.2d 885, 894 (4th Cir. 1989); United States v. Valezquez, 847 F.2d 140, 142-43 (4th Cir. 1988); United States v. Porter, 821 F.2d 968, 972-73 (4th Cir. 1988); United States v. Headspeth, 852 F.2d 753, 755 (4th Cir. 1988); United States v. Crockett, 813 F.2d 1310, 1317 (4th Cir. 1987); United States v. Love, 767 F.2d 1052, 1060 (4th Cir. 1985); United States v. Moss, 756 F.2d 329, 333 (4th Cir. 1985). This court recently addressed the issue in United States v. Reives, 15 F.3d 42 (4th Cir. 1994). After indicating that "we have never found a refusal of a party’s request for a clarifying instruction to be error... ," we further noted that where a definition was given, we have not reversed on that ground alone but rather have examined the instruction as a whole to see whether it was Sa prejudicially misleading or confusing. Jd. at 44. In affirming the district court’s refusal to give a clarifying instruction, "we reaffirm[ed] our longstanding, albeit forgiving, proscription against any attempts to define reasonable doubt to jurors." Id. at 46. Furthermore, we have consistently held that a district court has the authority to limit closing argument to prohibit counsel from defining reasonable doubt. Headspeth, 852 F.2d at 756; Crockett, 813 F.2d at 1317. Therefore, the district court did not err in limiting the closing argument of Jemes’ counsel. Il. Given the clear precedent of this circuit, we find that the district court did not err in rejecting Jones’ request for an instruction clarifying reasonable doubt or in limiting closing argument. Jones’ conviction is therefore affirmes AFFIRMED [2. Unpublished order of the Court of Appeals, United States v. Jones, No. 92-5661 (4th Cir. June 7, 1993) (en banc)] UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT FILED June 7, 1993 No. 92-5661 CR-90-405-MJG UNITED STATES OF AMERICA Plaintiff - Appellee v. LESTER V. JONES Defendant - Appellant ORDER The appellant’s suggestion of hearing in banc was submitted to the Court. A majority of judges having voted in a requested poll of the Court to deny hearing in banc, Ta Ce IT IS ORDERED that the suggestion for hearing in banc is denied. IT IS FURTHER ORDERED that this case shall be calendared for argument at the October 1993 session of Court. Entered at the direction of Chief Judge Ervin with the concurrence of Judges Russell, Hall, Phillips, Wilkinson, Wilkins, Niemeyer, Hamilton, Luttig and Williams. Judges Widener and Murnaghan dissent. FOR THE COURT - BY DIRECTION /s/ Bert M. Montague CLERK (3. Unpublished judgment of conviction and sentence of the District Court, United States v. Jones, No. MJG-90-0405 (D. Md. Sept. 30, 1992)] UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND UNITED STATES OF AMERICA JUDGMENT IN A CRIMINAL CASE We Case Number: MJG-90-0405 LESTER V. JONES Joseph L. Evans/ Ira L. Oring Attorney for United States (Name and Address of Defendant) Stephen H. Sachs, Esq. (RET) Attorney for Defendant __FILED____ENTERED __LODGED RECEIVED SEP 30 1992 [illegible] CLERK U.S. DISTRICT COURT DISTRICT OF MARYLAND BY___ CRIMINAL DEPUTY THE DEFENDANT ENTERED A PLEA OF: ( guilty O nolo contendere] as to count(s) » and O not guilty as to count(s) THERE WAS A: Jury (© finding C verdict] of guilty as to count(s)_1 & 2 F the § tine Indi THERE WAS A: Jury (O finding @ _ verdict) of not guilty as to count(s)_3 & 4 O judgment of acquittal as to count(s) The defendant is acquitted and discharged as to this/these count(s). THE DEFENDANT IS CONVICTED OF THE OFFENSE(S) OF: Counts 1 and 2, Title 26 and 18, Sections 7201 and 2 - Tax Evasion; Aiding and Abetting. Microfilmed Date SEP 30 1992 IT IS THE JUDGMENT OF THIS COURT THAT: the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment of a term of 18 months as to Count No. 1, and 18 months as to Count No. 2 to run concurrent to Count 1. IT IS FURTHER ORDERED that the defendant self- surrender at 10a 3 a = . . a Br ae ¥ 4 Z ; =. = ay ig s % £ ; 12:00 noon on January 4, 1993. IT IS FURTHER ORDERED that the defendant pay a fine in the amount of $25,000.00 as to Count No. 1. In addition to any conditions of probation imposed above, IT IS ORDERED that the conditions of probation set out on the reverse of this judgment are imposed. CONDITIONS OF PROBATION Where probation has been ordered the defendant shall: (1) refrain from violation of any law (federal, state, and local) and get in touch immediately with your probation officer if arrested or questioned by a law- enforcement officer; (2) associate only with law-abiding persons and maintain reasonable hours; (3) | work regularly at a lawful occupation and support your legal dependents, if any, to the best of your ability. (When out of work notify your probation officer at once, and consult him prior to job changes); (4) not leave the judicial district without permission of the probation officer; (5) notify your probation officer immediately of any changes in your place of residence; (6) follow the probation officer’s instructions and report as directed. The court may change the conditions of probation, reduce or extend the period of probation, and at any time during the probation period or within the maximum probation period of 5 years permitted by law, may issue a warrant lla and revoke probation for a violation occurring during the probation period. IT IS FURTHER ORDERED that the defendant shall pay a total special assessment of $_50.00 _ pursuant to Title 18, U.S.C. Section 3013 for count(s)_2 _as follows: IT IS FURTHER ORDERED THAT counts are DISMISSED on the motion of the United States. IT IS FURTHER ORDERED that the defendant shall pay to the United States attorney for this district any amount imposed as a fine, restitution or special assessment. The defendant shall pay to the clerk of the court any amount imposed as a cost of prosecution. Until all fines, restitution, special assessments and costs are fully paid, the defendant shall immediately notify the United States attorney for this district of any change in name and address. IT IS FURTHER C}.DERED that the clerk of the court deliver a certified copy of this judgment to the United States marshal of this district. O The Court orders commitment to the custody of the Attorney General and recommends: _September 25, 1992 Date of Imposition of Sentence _/s/ Herbert N. Maletz Signature of Judicial Officer 12a HERBERT _N. MALETZ, SENIOR, U.S. DISTRICT JUDGE Name and Title of Judicial Officer I hereby attest and certify on 2 __9-30-92 __that the foregoing | document is a full, true and correct copy of the original on file in my office and in my legal custody. JOSEPH A. HAAS CLERK, U.S. DISTRICT COURT DISTRICT OF MARYLAND By___/s/ [illegible] __Deputy RETURN I have executed this Judgment as follows: Defendant delivered on to at Date , the institution designated by the Attorney General, with a certified copy of this Judgment in a Criminal Case. 13a United States Marshal By Deputy Marshal 14a 8 ES AN eR ae he Kano nev rm a Do srehi eer Hows, (ORR REN a RARE me o8 nc lg NON pb Gh ey RNP NR A RS SRI CITE TIE SPS 4 2 OE SOP ROR EE CeO LR I Nd HE ’ PONT AN te sate ° ” ” tha be ia Pah a ca A my To Se ee Stites as Pee ae ents eG ree ee eee rere os ios q [4. Unpublished opinion and order of the District Court, United States v. Jones, No. MJG-90-0405 (D. Md. Nov. 12, 1992)] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND UNITED STATES OF AMERICA : Criminal No. Vv. : MJG-90-0405 (Judge Maletz) LESTER V. JONES MEMORANDUM AND ORDER On September 25, 1992, the defendant Lester V. Jones was sentenced by the court to 18 months imprisonment and a fine of $25,000, following his conviction by a federal jury of two counts of tax evasion. At the conclusion of the defendant’s sentencing proceeding, the defendant moved to remain free on bond pending his appeal. The parties have submitted memoranda on the issue and the court is now prepared to rule. For reasons explained below, the defendant’s motion will be denied. Under 18 U.S.C. § 3143(b), a defendant may only remain at liberty pending appeal if the court determines that his or her appeal raises a substantial question of iaw likely to result in a reversal, an order for a new trial, a sentence that does not include incarceration, or a reduced sentence which is less than any time served plus the 15a expected duration of the appeal process. The Fourth Circuit has defined a “substantial question” as a “close o> teil Sein Acie, EO United States v. Steinhorn, 927 F.2d 195, 196 (4th Cir. "1991). The only appellate issue that the defendant claims to be “substantial” is the court’s refusal to define the term reasonable doubt in its instructions to the jury and its “limitation upon defense counsel’s discussion of reasonable doubt in closing argument" (Def. Mem. at 3).' This, however, is not a close question or one that could be decided the other way. The Fourth Circuit has “frequently admonished district courts not to attempt to define reasonable doubt in their instructions to the jury absent a specific request from the jury itself." United States v. Headspeth, 852 F.2d 753, 755 (4th Cir. 1988); see also United States v. Ricks, 882 F.2d 885, 894 (4th Cir. 1989), cert. denied, 493 U.S. 1047 (1990); United States v. Valezquez, 847 F.2d 140, 142-43 (4th Cir. 1988); United States v, Porter, 821 F.2d 968, 972 (4th cir. 1988), cert. denied, 485 U.S. 934 (1988); United States v. Love, 767 F.2d 1052, 1060 (4th Cir. 1985), cert. denied, 475 U.S. 1081 (1986). In the face of the above authorities, the defendant argues that the issue he presents is a close one because other Federal Circuits have decided the question the other way. The inquiry under Steinhomn, however, is not ' While the court did imstruct defense counsel not to define reasonable doubt, counsel was permitted to analogize reasonable doubt to his baseball metaphor that a “tie goes to the defendant and that the prosecution’s burden is to throw the defendant out by a mile." 16a whether the issue in question has “divided the judiciary" (Def. Mem. at 3), but whether it is a close question under the precedents of this Circu't. As the above-cited cases demonstrate, the defendant’s asserted issue clearly is not a close question in this Circuit. The defendant also seeks to remain free pending appeal on the ground that he would likely serve his entire sentence before his appeal is decided. In support of this argument, the defendant cites a case decided by the Honorable Joseph H. Young of this court, United States v. McManus, 651 F.Supp. 382 (D.Md.), aff'd, 826 F.2d 1061 (4th Cir. 1987). In McManus, the defendant’s motion for release pending appeal was granted despite the court’s finding that no substantial appellate question existed. The court held release to be nevertheless appropriate because “if detained pending appeal, defendant will likely serve the better portion of his two year term of incarceration before the case is resolved." McManus, 651 F.Supp. at 384. In making the above argument, the defendant fails to understand the significance of the congressional amendment that was made to 18 U.S.C. § 3143 after the McManus decision. At the time of that decision, § 3143 only provided for release pending appeal if a defendant presented a substantial issue likely to result in reversal or an order for new trial. As set forth above, Congress has since revised the statute so as to also provide for release if the defendant presents a substantial issue likely to result either in a sentence that does not include incarceration or a reduced sentence which is less than any time served plus the anticipated length of the appellate process. Thus, under § 3143, it is now evident that a defendant may not 17a be released pending appeal on the mere ground that his sentence will have been served by the time his i decided. A defendant must in addition present a substantial appellate issue likely to result in a reduction of his sentence, such that incarceration pending appeal will be plainly unjust. As discussed above, the defendant has failed to present such an issue. For the foregoing reason, the defendant’s motion is denied. Dated: November _12_, 1992. 18a (5. Unpublished order of the District Court, United States v. Jones, No. MJG-90-0405 (D. Mad. June 23, 1993)] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND UNITED STATES OF AMERICA : Criminal No. Vv. : MJG-90-0405 (Judge Maletz) LESTER V. JONES MEMORANDUM AND ORDER On September 25, 1992, the defendant, Lester V. Jones, was sentenced by the court to 18 months imprisonment following his conviction on two counts of tax evasion. The defendant was also fined $25,000 and sentenced to perform 1,000 hours of community service upon his release from prison. Having served some six months of his sentence, the defendant now moves, pursuant to Rule 35 of the Federal Rules of Criminal Procedure, for an order of the court reducing the sentence of confinement to time served. The government opposes the motion. Because of the failing health of the defendant’s wife and daughter, the court will grant the defendant’s motion, with the condition that the defendant be placed on probation for the remainder of his 18-month sentence. The defendant’s daughter has been confined to bed rest since 19a ——————————— the difficult and complicated birth of her first child on May 10, 1993. While the responsibility for caring for their daughter has fallen on the defendant’s wife, she herself has been in declining health as a result of stress and an aggravated ulcer condition. The court is also influenced by the defendant’s exemplary work performance during his period of incarceration, as demonstrated by the report of his prison supervisor. Under these circumstances, and given the nature of the defendant’s offense, the court does not believe that any appropriate purpose would be served by the defendant’s continued incarceration. Accordingly, it is hereby ordered this 23rd day of June, 1993, by the United States District Court for the District of Maryland, the following: 1) The defendant’s term of imprisonment is reduced to time served; he shall be released immediately; 2) The defendant shall be placed on probation for the time remaining to be served on his original 18- month sentence; 3) The defendant shall perform the 1,000 hours of community service previously ordered upon his release from prison; and 4) The defendant shall pay the $25,000 fine previously ordered, if he has not already done so. /s/ Herbert N. Maletz Herbert N. Maletz Senior Judge 20a fy bie Sie ida Pe GTS PEN eat ra en OT moet IR RMA ee Mea ee ToT OR A ae Ty NTS On Nena GER Rete NP Rete Yara ree [6. Original Indictment, United States v. Jones, No. MJG-90-0405 (Oct. 18, 1990)] THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND UNITED STATES OF AMERICA : CRIMINAL NO. G-90-0405 v. : (Tax Evasion, 26 U.S.C. LESTER V. JONES : §7201; Aiding and Abetting 18 U.S.C. §2) INDICTMENT The Grand Jury for the District of Maryland charges: That on or about the 14th day of August, 1984, in the State and District of Maryland, LESTER V. JONES a resident of Hydes, Maryland, who during the calendar year 1983 was married, did willfully attempt to evade and defeat a large part of the income tax due and owing by him and his spouse to the United States of America for the calendar year 1983, by preparing and causing to be prepared, and by signing and causing to be signed, and by mailing and causing to be mailed in the District of 2la | Maryland a false and fraudulent joint U.S. Individual Income Tax Return, Form 1040, on behalf of himself and his spouse, which was filed with the Internal Revenue Service, wherein it was stated that their joint taxable income for said calendar year was the sum of $51,317.75, and that the amount of tax due and owing thereon was the sum of $15,879.00, whereas, as he then and there well knew and believed, their joint taxable income for the said calendar year was approximately $150,000, upon which said joint taxable income there was a substantial tax due and owing to the United States of America, to wit, approximately $59,000.00. 26 U.S.C. §7201 18 U.S.C. §2 COUNT II The Grand Jury for the District of Maryland charges: That on or about the 12th day of August, 1985, in the State and District of Maryland, LESTER V. JONES a resident of Hydes, Maryland, who during the calendar year 1984 was married, did willfully attempt to evade and defeat a large part of the income tax due and owing by him and his spouse to the United States of America for the calendar year 1984, by preparing and causing to be prepared, and by signing and causing to be signed, and by mailing and causing to be mailed in the District of 22a ' Maryland a false and fraudulent joint U.S. Individual Income Tax Return, Form 1040, on behalf of himself and his spouse, which was filed with the Internal Revenue Service, wherein it was stated that their joint taxable income for said calendar year was the sum of $50,792.27, and that the amount of tax due and owing thereon was the sum of $15,940.46, whereas, as he then and there well knew and believed, their joint taxable income for the said calendar year was approximately $183,000, upon which said joint taxable income there was a substantial tax due and owing to the United States of America, to wit, approximately $76,000.90. 26 U.S.C. §7201 18 U.S.C. §2 's/ Breckinridge L. Will Breckinridge L. Willcox United States Attorney [7. Superseding Indictment, United States v. Jones, No. MJG-90-0405 (March 21, 1991)] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND UNITED STATES OF AMERICA : CRIMINAL NO. MJG-90-0405 Vv. : (Tax Evasion, 26 U.S.C. LESTER V. JONES ; §7201; False Declaration, 26 U.S.C. §7206(1); Aiding and Abetting, | 18 U.S.C. §2) | SUPERSEDING INDICTMENT | The Grand ‘Jury for the District of Maryland | charges: | That on or about the 14th day cf August, 1984, in | the State and District of Maryland, LESTER V. JONES 24a a resident of Hydes, Maryland, who during the calendar year 1983 was married, did willfully attempt to evade and defeat a large part of the income tax due and owing by him and his spouse to the United States of America for the calendar year 1983, by preparing and causing to be prepared, and by signing and causing to be signed, and by mailing and causing to be mailed in the District of Maryland a false and fraudulent joint U.S. Individual Income Tax Return, Form 1040, on behalf of himself and his spouse, which was filed with the Internal Revenue Service, wherein it was stated that their joint taxable income for said calendar year was the sum of $51,317.75, and that the amount of tax due and owing thereon was the sum of $15,879.00, whereas, as he then and there well knew and believed, their joint taxable income for the said calendar year was approximately $170,000, upon which said joint taxable income there was a substantial tax due and owing to the United States of America, to wit, approximately $68,000.00. 26 U.S.C. §7201 18 U.S.C. §2 COUNT II And the Grand Tury for the District of Maryland charges: That on or about the 12th day of August, 1985, in the State and District of Maryland, LESTER V. JONES 25a a resident of Hydes, Maryland, who during the calendar year 1984 was married, did willfully attempt to evade and defeat a large part of the income tax due and owing by him and his spouse to the United States of America for the calendar year 1984, by preparing and causing to be prepared, and by signing and causing to be signed, and by mailing and causing to be mailed in the District of Maryland a false and fraudulent joint U.S. Individual Income Tax Return, Form 1040, on behalf of himself and his spouse, which was filed with the Internal Revenue Service, wherein it was stated that their joint taxable income for said calendar year was the sum of $50,792.27, and that the amount of tax due and owing thereon was the sum of $15,940.46, whereas, as he then and there well knew and believed, their joint taxable income for the said calendar year was approximately $217,000, upon which Said joint taxable income there was a substantial tax due and owing to the United States of America, to wit, approximately $93,000.00. 26 U.S.C. §7201 18 U.S.C. §2 ., COUNT Tit And the Grand Jury for the District of Maryland charges: That on or about the 6th day of October, 1986, in the State and District of Maryland, LESTER V. JONES 6a a resident of Hydes, Maryland, did willfully and knowingly make and subscribe an amended joint United States Individual Income Tax Return, Form 1040, for the calendar year 1983, which was verified by a written declaration that it was made under the penalties of perjury and was filed with the Internal Revenue Service Center at Philadelphia, Pennsylvania, the said LESTER V. JONES well knowing that the 1983 Amended United States Individual Income Tax return was not true and correct as to every material matter in that the said LESTER V. JONES reported on Line la of Schedule C that the gross receipts for 1983 generated from his business and profession at an attorney were $297,002.35, whereas the said LESTER V. JONES there knew and believed that he had received additional gross receipts which should have been included in the figure on Line la of Schedule C of the 1983 amended joint United States Individual Income Tax return. 26 U.S.C. §7206(1) 18 U.S.C. §2 COUNT IV. And the Grand Jury for the District of Maryland charges: That on or about the 6th day of October, 1986, in the State and District of Maryland, LESTER V. JONES 27a a resident of Hydes, Maryland, did willfully and knowingly make and subscribe an amended joint United States Individual Income Tax Return, Form 1040, for the calendar year 1984, which was verified by a written declaration that it was made under the penalties of perjury and was filed with the Internal Revenue Service Center at Philadelphia, Pennsylvania, the said LESTER V. JONES well knowing that the 1984 Amended United States Individual Income Tax return was not true and correct as to every material matter in that the said LESTER V. JONES reported on Line la of Schedule C that his gross receipts for 1984 generated from his business and profession as an attorney were $422,907.27, whereas the said LESTER V. JONES there knew and believed that he had received additional gross receipts which should have been included in the figure on Line la of Schedule C of the 1984 amended joint United States Individual Income Tax Return. 26 U.S.C. §7206(1) 18 U.S.C. §2 Breckinridge L. Willcox United States Attorney A TRUE BILL: Foreperson 3/21/91 Dated 28a [8. Excerpt of charging conference at first trial before Judge Garbis (July 15, 1991) (Tr. at 973)] THE COURT: .... Mr. Sachs. You don’t have to argue it now. 1 want you to know this is a dilemma that I would like to see siruightened out, especially in a case MR. SACHS: We are grateful for the Court addressing it in advance. I can tell you that we of course - - as the Court may have seen, we request notwithstanding the Fourth Circuit’s ruling, we request an instruction, the classic one about the most important affairs, et cetera. We recognize the Court is bound, it cannot give it. The Supreme Court however has never addressed it. We believe that -- THE COURT: I will go further, Mr. Sachs. I think that you are right. I think that -- I am not suggesting that this case should ever get up to appeal. But if it did, I would hope that that would be reversible error not to give it. MR. SACHS: In any case, Your Honor, we take that view and recognize your hands are tied. We nonetheless request it. 29a [9. Excerpt of petitioner’s counsel’s closing argument at first trial before Judge Garbis (July 22, 1991) (Tr. at 1296)] MR. SACHS: .... Beyond a reasonable doubt, ladies and gentlemen, doesn’t mean beyond any doubt. It doesn’t mean that the government has to prove its case to a mathematical certainty. Very few things can be done that precise. But it does mean that they have to remove any doubt that’s reasonable, any concern of the kind that would cause you to hesitate in the most important of your own personal or family or business or job situations. [10. Excerpt of petitioner’s counsel’s opening statement at second trial before Judge Maletz (April 2, 1992) (Tr. at 45-46)] MR. SACHS: .... I mention this presumption of Les Jones’ innocence and the need for the Government to prove the case beyond a reasonable doubt, as Judge Maletz reminded you yesterday, this presumption of innocence is Les Jones’ and it remains with him throughout the entire case, until the Government has removed it, and this business of reasonable doubt is not just a matter of whether the scales tip a little bit one way or the other. It is not in this business, in the criminal business, a tie doesn’t go to the runner. They got to throw us oui by a mile. That is what proof beyond a reasonable doubt means. 3la Sige [11. Petitioner’s requested jury instruction on reasonable doubt at second trial before Judge Maletz (April 9, 1992)] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ) UNITED STATES OF AMERICA ) Plaintiff, LESTER V. JONES Defendant DEFENDANT’S REQUESTED INSTRUCTIONS TO THE JURY Defendant Lester V. Jones hereby requests the Court instruct the jury in the above-captioned case in accordance with the proposed instructions attached hereto. Respectfully submitted, /s/ Stephen H. Sachs Stephen H. Sachs WILMER, CUTLER & PICKERING 2445 M Sireet, N.W. 32a Washington, D.C. 20037-1420 (202) 663-6000 Counsel for Defendant Lester V. Jones Dated: April 9, 1992 DEFENDANT'S REQUESTED INSTRUCTION NO. 2 Reasonable Doubt' I have said that the government must prove the defendant guilty beyond a reasonable doubt. The question naturally is what is a reasonable doubt? The words almost define themselves. It is a doubt based upon reason and common sense. It is a doubt that a reasonable person has after carefully weighing all of the evidence. It is a doubt which would cause a reasonable person to hesitate to act in a matter of importance in his or her personal life. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs. A reasonable doubt is not a caprice or whim; it is not a speculation or suspicion. It is not an ' The defendant recognizes that this instruction is foreclosed by Fourth Circuit law, United States v. Ricks, 882 F.2d 885, 894 (4th Cir. 1989), but notes that the fairness of the Fourth Circuit’s restriction on this instruction has not been ruled upon by the United States Supreme Court. 33a — i excuse to avoid the performance of an unpleasant duty. And it is not sympathy. In a criminal case, the burden is at all times upon the government to prove guilt beyond a reasonable doubt. The law does not require that the government prove guilt beyond all possible doubt; proof beyond a reasonable doubt is sufficient to convict. This burden never shifts to the defendant, which means that it is always the government’s burden to prove each of the elements of the crimes charged beyond a reasonable doubt. If, after fair and impartial consideration of all of the evidence you have a reasonable doubt, it is your duty to acquit the defendant. On the other hand, if after fair and impartial consideration of all the evidence you are satisfied of the defendant’s guilt beyond a reasonable doubt, you should vote to convict. Modern Federal Jury Instructions § 4-2 34a [12. Excerpt of charging conference at second trial before Judge Maletz (April 16, 1992) (Tr. at 1399- 1405)] MR. SACHS: Your Honor, I can’t identify it on the first ten pages, except I think it is probably appropriate to raise it here. We specifically request that the Court give the reasonable doubt instruction requested by us as instruction number two, but as we point out in our footnote, we recognize the fact that the Fourth Circuit has forbidden you to do that. THE COURT: You mean define reasonable doubt? MR. SACHS: Yes, sir. We have asked for that. We know you don’t have the authority to do it, I understand that. THE COURT: Right. MR. SACHS: But some day, I know it is not in this case, but some day, a higher court than the Fourth Circuit may have to look at that, and so I simply want to preserve the point that we requested, but we recognize you can’t give it. It is our requested instruction number two. Our reasonable doubt request. THE COURT: Incidentally, I am well aware of the fact, in closing argument you may not, according to the teaching of the Fourth Circuit, define reasonable doubt of the defendant for the jury. I know that is a problem. 35a MR. SACHS: Your Honor, in the last trial, I think the parties agreed, although I am not positive of this. I know I said without objection that -- I used I believe the boilerplate language, that, you know, this means doubt about the most important affairs -- THE COURT: In your life and so on. MR. EVANS: I don’t think you said that, Steve. MR. SACHS: I also said there was a colloquialism, I said they have to throw us out by a mile. The tie doesn’t go to the runner. Judge Garbis permitted that, I believe, I know I did, and the Government I think did not object to it. THE COURT: Object to what? MR. SACHS: Well, the Government I believe, the Government will have to speak for itself. I know I said that reasonable doubt means that it can’t be a close call. A tie as in baseball, a tie doesn’t go to the runner, they have to throw us out by a mile. I recognize it is not the perfect metaphor, but the Government did not object to that. Judge Garbis expressly, in a conference like this, permitted me to do it, I thought I also said, but I could be wrong, the usual boilerplate. But in any case, Your Honor, I request that I be permitted, even though I know the Court can’t give the instruction, that I be permitted to give what in most courts in this country is given weight, Judge, is s [sic] definition of reasonable doubt. eee ee ee ~ ee THE COURT: Of course, except the Fourth Circuit. MR. SACHS: Except the Fourth Circuit, but I repeat most courts in this country who have a sounder view of this matter than the eccentric Fourth Circuit. THE COURT: I am not so sure it is an eccentric Fourth Circuit. The First Circuit has taken the position that the term reasonable doubt defines itself and it is not necessary to elaborate on that. There is a decision on that. Now, what the District Courts now do, I don’t know, but I do know what the First Circuit has said, but we are in the Fourth Circuit in any event. Mr. Evans, what is your position? MR. EVANS: Well, we feel obliged to follow what the Fourth Circuit says. I don’t think that we can sort of concur, or I certainly would object to Mr. Sachs arguing from the old boilerplate definitions that used to be given, you know, most important decisions in your life, you know, I certainly object to that. If he is going to say -- if Steve is going to say, a tie doesn’t go to the runner, something like that, I mean, we are not guing to stand up and object in the middle of this closing argument. THE COURT: Let’s see if we can get this matter squared away right now. First, there is not even a request of the Court by Mr. Sachs to argue that he be allowed to 37a argue before the jury as to what the old, shall we say hackneyed meaning of reasonable doubt is. MR. SACHS: I am making that request. THE COURT: You mean about the most important thing in your life? MR. SACHS: I want to tell the jury that. THE COURT: You want to argue that? MR. SACHS: I am asking the Court’s permission. If the Court forbids it obviously, I won’t do it. I don’t think there is anything in the four or five or six cases in the Fourth Circuit on the subject of the Court, I don’t think there is anything that forbids a defendant from arguing that to the jury. I think you are free to permit me to do it, and I ask that you -- THE COURT: I really don’t think so. In any event, I will sustain that objection, and I will not permit argument based on a definition of reasonable doubt, because this Court, the Fourth Circuit, when I say this Court has stated again and again, we do not want reasonable doubt defined, and I believe, I am not positive of this, that one or two decisions by the Fourth Circuit to the effect that where the defendant’s counsel wanted to argue precisely the point that you want to argue, Mr. Sachs, the Fourth, this Court would not permit it, and the Fourth Circuit said the Court acted well within its discretion. In other words, I feel constrained. 38a MR. SACHS: I certainly accept the Court’s ruling and disagree with it, and would like my exception noted. That moves us to the colloquialism I was permitted to do the last time, which is the baseball metaphor, which I feel -- THE COURT: What is your position on that? MR. EVANS: Well, I don’t really like it, because it is simply another way of defining reasonable doubt, and so it is kind of doing through the back door what can’t be done through the front door. If that is the metaphor that Mr. Sachs is going to use -- I mean, we don’t like to object during closing argument. THE COURT: We are not talking about objecting at the course of the closing argument. We are talking about now. MR. EVANS: All right. Well, I think we have to oppose it, Your Honor. I think the law constrains us to oppose it for the same reasons we opposed the other. MR. SACHS: May I remind the Court, I had said precisely that in my opening statement without objection, in this case without objection. THE COURT: I am going to put it this way. If you said it in the opening statement without objection, you can use precisely the same words for your closing. I think otherwise we would have an incongruous result, I think, and I want the objection to be noted to that extent. 39a In other words, your position, I can understand it, getting around the Court’s ruling from the back door. Not quite. MR. EVANS: Not quite, but sort of. THE COURT: Open the door a little bit. MR. SACHS: Your Honor, I just want to point out in this connection, a year ago I tried a criminal case before Judge Nickerson, and the issue arose as to whether the Court had -- what the Court should or would and should do if the jury asked for a definition. And that led to the next issue of whether counsel can tell the jury that it has the right to ask for a definition. Let me quickly say, I have no intention -- I will not do such a thing, but the variance on the issue -- THE COURT: Suppose the jury should ask, we will cross that bridge when we get to it. MR. SACHS: I understand, and I will certainly not encourage them to ask. THE COURT: I don’t know how Judge Nickerson would feel today, it kind of escapes me now, about seven defendants. MR. SACHS: A drug case. MR. EVANS: A drug case. THE COURT: As I said, I was directing you gentlemen to my first ten pages, which in my view constitute the boilerplate. Is there anything further? MR. SACHS: Not on the first ten pages, Your Honor. THE COURT: I think you have indicated you have no objection. MR. EVANS: That is correct. 4la [13. Excerpt of petitioner’s counsel’s closing argument at second trial before Judge Maletz (April 20, 1992) (Tr. at 1516-17)] MR. SACHS: .... Ladies and gentlemen, in the deadly serious business of a criminal case, especially a criminal tax case, there needs to be something niore than numbers, even big numbers. There has to be an intent to cheat. And you can’t brand a man a felon, you can’t put the mark of Cain on his brow, based on guessing or speculation or conjecture. And beyond a reasonable doubt means that it is it is [sic] close, if it is anywhere near close, the Government hasn’t made its case. They have to throw us out by a mile, to use a baseball metaphor. [14. Excerpt of proceedings at second trial before Judge Maletz (jury verdict) (April 22, 1992) (Tr. at 1618-22)] THE CLERK: We are taking a verdict in criminal number MJG 90-0405, USA versus less [sic] Lester V. Jones. Members of the jury, please answer to your names as I call them. (Roll call.) THE CLERK: Members of the jury have you agreed upon your verdict? THE JURY: Yes. THE CLERK: Who shall say for you? THE FOREMAN: I shall. THE COURT: Would you please stand, sir. THE CLERK: Has verdict sheet which was submitted to the jury been answered? THE FOREMAN: Yes, it has. THE CLERK: Is the form signed and dated by you? THE FOREMAN: Yes, it has been. 43a THE CLERK: Would you answer the questions as I read them. Verdict form, count one, question one, how do you find the defendant, Lester V. Jones, as to count one of the superseding indictment? THE FOREMAN: Guilty. THE CLERK: Count two, question two, how do you find the defendant, Lester V. Jones, as to count two of the superseding indictment? THE FOREMAN: Guilty. THE CLERK: Count three, question three, how do you find the defendant, Lester V. Jones, as to count three of the superseding indictment? THE FOREMAN: Not guilty. THE CLERK: Count four, question four, how to [sic] you find the defendant, Lester V. Jones, as to count four of the superseding indictment? THE FOREMAN: Not guilty. THE COURT: Please poll the jury. THE CLERK: Mr. Foreman, you have announced the verdict of the jury, is that your verdict also? JUROR NUMBER 1: Yes, it is. THE CLERK: Juror number 2, you have heard the verdict as yours? JUROR NUMBER 2: Yes, it is. THE CLERK: Juror number 3, you have heard the verdict as yours? JUROR NUMBER 3: Yes, it is. THE CLERK: Juror number 4, you have heard the verdict as yours? JUROR NUMBER 4: Yes. THE CLERK: Juror number 5, you have heard the verdict as yours? JUROR NUMBER 5: Yes. It is. THE CLERK: Juror number 6, you have heard the verdict as yours? JUROR NUMBER 6: Yes, it is. THE CLERK: Juror number 7, you have heard the verdict announced by your Foreman as to the defendant and as to each of the counts in which he is charged, is that your verdict? JUROR NUMBER 7: Yes, it is. THE CLERK: Number 8, you have heard the verdict as yours? JUROR NUMBER 8: Yes, it is. THE CLERK: Number 9, you have heard the verdict as yours? JUROR NUMBER 9: Yes. THE CLERK: Juror number 10, you have heard the verdict as yours? JUROR NUMBER 10: Yes. THE CLERK: Juror number 11, you hav~ heard the verdict as yours? JUROR NUMBER 11: Yes. THE CLERK: Juror number 12, you have heard the verdict as yours, is that your verdict? JUROR NUMBER 12: Yes, it is. THE CLERK: Members of the jury, harken to your verdict as the Court has recorded it. The verdict and answers thereto having been read, you and each of you have answered them as read by your foreman and so you all say? THE JURY: Yes. THE CLERK: Verdict recorded. THE COURT: Ladies and gentlemen of the jury, I know that you have given this case your most earnest 46a attention during the course of trial and during the course of your deliberations. It has been a privilege to have worked with you. I know that you have given consideration to all the contentions of the parties, the most earnest consideration to all the parties. At this juncture, i want to excuse you with the thanks of the Court. The jury will now be excused. (The jury is excused from the courtroom.) 47a [15. Excerpts from manuscript of Jon O. Newman, Beyond “Reasonable Doubt," 68 N.Y.U. L. REV. ____ (1994) (forthcoming) (manuscript at 1-4, 8, 19- 20)] Beyond "Reasonable Doubt" by Jon O. Newman‘ It is a great honor for me to participate in the James Madison Lecture series. This series has a special significance for me that I believe is shared by only two of the distinguished men and women who have preceded me to this podium. This series was endowed by Louis Schweitzer, and it was my distinct privilege to know that remarkable individual. We met in 1970 when I was asked by the Ford Foundation to prepare an evaluation of the Vera Institute of Criminal Justice, the pioneering research and action agency that Mr. Schweitzer initially funded (and named in memory of his wife). The interview left me with a vivid impression of his commitment to an enlightened system of criminal justice. So it is a special privilege for me to participate in the lecture series that he initially made possible. The James Madison Lectures were inaugurated “to enhance the appreciation of civil liberty and strengthen the “ Judge Newman is the Chief Judge of the United States Court of Appeals for the Second Circuit. This lecture was delivered as the James Madison Lecture et New York University Law School on November 9, 1993. 48a national purpose." Any leciure named for or the principal architect of the Bill of Rights could to goal. I hope I do not stray outside the lofty objective of on a right that is not mentioned in Madison’s handiwork, and was not formal recognition as comprehended within the general language of the Bill of Rights untii 1970,' though assumed by the Supreme Court to be a requirement, at least in the federal courts, as early as 1881.2 My focus is the implicit component of the Due Process Clause that guarantees every person the right not to be convicted of a crime unless the evidence establishes guilt beyond a reasonable doubt. My thesis may be stated quite simply. I believe that the constitutional jurisprudence of this Nation has accepted the “reasonable doubt" standard as a verbal formulation to be conveyed to juries in jury charges, but has failed to take the standard seriously as a rule of law against which the validity of convictions is to be judged. The consequences of this deficiency are, in my view, two- fold: We are convicting some people who are not guilty beyond a reasonable doubt, a few of whom may in fact be innocent, and at the same time, quite paradoxically, we are acquitting some people who could be proven to be guilty beyond a reasonable doubt, most of whom are in fact ' See In_re Winship, 397 U.S. 358, 364 (1970) (“[TJhe Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."). * See Mills v. United States, 103 U.S. 304, 312 (1881) ("The evidence upon which a jury is jusiified in returning a verdict of guilty must be sufficient to produce a conviction of guilt, to the exclusion of all reasonable doubt.”). 49a guilty. Thus the proposition I wish to discuss is that the time has come for American courts, especially federal courts, to move beyond “reasonable doubt" as merely an incantation, to give renewed consideration to what the standard means and how it should be applied as a rule of law, toward the end that the standard serves as a more precise divider of the guilty from the innocent. I say “more precise" because all must recognize that fact-finders are fallible and that any system of adjudicating guilt will inevitably run some risk of both convicting the innocent and acquitting the guilty. Recognition of the inevitability of both types of mistakes usually leads us to say that it is better to acquit some number of guilty persons than to convict one innocent person.* What we would not readily agree on is the appropriate ratio of guilty persons acquitted to innocent persons convicted. The cases: bave frequently mentioned a ratio of ten to one,‘ though ratios of twenty to one, and even ninety-nine to one have been mentioned in earlier literature.° 3 “[I}t is far worse to convict an innocent man than to let a guilty man go free.“ In re Winship, 397 U.S. 358, 372 (Harlan, J., concurring). . * See Furman v. Georgia, 408 U.S. 238, 367 n. 158 (Marshall, J., concurring (quoting William O. Douglas, Foreword in Jerome Frank and Barbara Frank, Not Guilty 11-12 (1957)); Goetz v. Crosson, 967 F.2d 29, 39 (2d Cir. 1992) (Newman, J., concurring); Bunnell v. Sullivan, 947 F.2d 341, 351 (9th Cir. 1991) (in banc) (Kozinski, J., concurring); United States v. Greer, 538 F.2d 437, 441 (D.C. Cir. 1976); 4 William Blackstone, Commentaries ch. 27, p. 358. * See Sir John Fortescue, De Laudibus Legum Angliae, ch. 27, p. 65 (originally written 1471, republished in Dr. Chrimes ed., Cambridge Univ. Press 1949) (“I should, indeed, prefer for twenty 50a Whatever ratio we find acceptable, one of the major variables in achieving that ratio is the degree of certainty we impose on fact-finders. If you would tolerate as many as 100 guilty persons going free in preference to convicting one innocent person, then you will insist that no one be convicted unless the fact-finder is sure of guilt to a degree approaching absolute certainty. If your ratio is ten to one, then you will likely impose a somewiiat less rigorous standard upon the fact-finder, but still require a high degree of certainty. [manuscript at 1-4] ies.) A somewhat curious aspect of the “reasonable doubt" standard is the reluctance of most courts to offer the jury any explanation as to what the standard means. Indeed, some federal courts have in recent years sternly admonished trial judges not to attempt any amplification of the standard whatsoever."* I find it rather unsettling that guilty men to escape death through mercy, than one innocent to be condemned unjustly."); Thomas Starkie, Evidence 756 (1724), quoted in IX Wigmore on Evidence § 2497 at 409-10 (Chadbourn rev. 1991) ("The maxim of the law is that it is better that ninety-nine ... offenders shall escape than that one innocent man be condemned."). * See, ¢.g., United States v. Hall, 854 F.2d 1036 (7th Cir. 1988); Murphy v. Holland, 776 F.2d 470, 478-79 (4th Cir. 1985), judgment a using ——— -. Rev. 1716, 721 (1990). Sla i% aa we are using a formulation that we believe will become less clear the more we explain it.’ [manuscript at 8] Coa Il. Moving Beyond “Reasonable Doubt" My argument is that the time has come for American courts to move beyond “reasonable doubt," to take this standard seriously and apply it conscientiously as a rule of law. By “moving beyond ’reasonable doubt’" I do not mean discarding the “reasonable doubt" standard in favor of some higher degree of certainty. I am entirely content to stay with “reasonable doubt" as the standard to which the jury must be persuaded of guilt. Nor do I mean to challenge the doctrine that, on appeal from convictions, appellate courts should view the evidence "in the light most favorable to the prosecution." Rather, niy point is that courts must do more than verbalize the “reasonable doubt" '? See 1 Sand, supra [Leonard B. Sand et al., Modern Federal Jury Instructions (1993)], { 4.01, at 4-12 (“[TJhe better practice is to spend some moments with the jury discussing the government’s standard of proof in order to clarify its meaning... ."). See also Defining Reasonable Doubt, supra, n.16 [sic]. ® See Jackson v. Virginia, 443 U.S. [307] at 319 [1979]. But see sea SS oly eager Sion. Resaenaaie Demi Criminal Decision Making Process 24 Amer. Crim. L. Rev. 910 (1987)] at 980 (arguing that reasonable doubt standard cannot properly be infused into sufficiency review as long as all reasonable inferences are construed in favor of the prosecution). 52a standard in jury instructions; they must make that standard an enforceable rule of law. There are several ways that courts could move beyond the current approach to reasonable doubt. 1. Clarifying the "reasonable doubt" jury instruction. First, we could make the “reasonable doubt" instruction clearer to jurors by focusing their attention solely on the need to be sure of guilt to a high degree. A model charge, prepared in 1987 by a subcommittee of the Judicial Conference’s Committee on the Operation of the Jury System, contains very useful language. Its key sentence reads, "Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt."*! Notably absent from the subcommittee’s model charge is the misleading phrase about a doubt “based on reason" and the ambiguous language about “hesitating on important matters."** For reasons not clear to me, this *! See Federal Judicial Center, Modern Federal Jury Instructions Instruction 21 (1987). ® The complete instruction reads: As I have said many times, the government has the burden of proving a defendant guilty beyond a reasonable doubt. Some of you may have served as jurors in civil cases, where you were told that it is only necessary to prove that a fact is more likely true than not true. In criminal cases, the government’s proof must be more powerful than that. It must be beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly 53a authoritatively formulated model instruction has not been widely adopted. {manuscript at 19-20] convinced that the defendant is guilty of the crime charged, you must find him guilty. If om the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_1683%3A1. Public record. Not legal advice.