Brief for the United States — Stewart v. United States

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3 PETITtON NOT. ,PRINTED rth

JAN 12 1961

C o JAMES &. BROWNING, ‘Clerk

No. 143 2 4

on the Siayreme Gourt af the Wied Sines

OcroBER Term, 1960

Wau stan STEWART, PETITIONER. | |

- Unrrep States oF AMERICA = ”

ON WRIT OF CERTIORARI TO THH UNITRD STATES COURT OF

_ APPEALS POR THE DISTRICT OF COLUMBIA CIROUIT —

BRIEF FOR. THE UNITED STATES.

J. LEE RANKIN, aed

y . WAYEB @. BARNETT, ole goes

BRATEIOB

7320M3S &. . :

: Aftorneys,

. Depertment of Justice, Washington 85, D.C.

INDEX

e ° ; Page

oe Pas eS oe ew ich agi anaes ies ;

EE AA EO cdevavenenhaoue

I cikbecuccudnnqunrndsudauevpuaeenaas

Statement. --.-.----- he asians wakarewakae ailieouude

A» The facts of the crime.-..-.--.:.----------

B. The defense of insanity_....-...-- Seabee eau

--C. Petitioner’s cross-examination, - iektcvewsanennee

Summary of argument-_.--....--..--- ep giiuneupean oie

ND. wat osceesvesecdeerenegersesenevesaresecn

—_—

- J, Asking petitioner whether this was the ‘first time

he had taken the

did not require a

is Sle iivcntehennsSemeaecensadie

stahd was not prejndicges and

eke ag es

peak.

B.. The question was relevant and competent

b as one of a series of memory-testing’

questions

cu unnateceansets 19.

but was of no impoftance for

C.*The question could have had no substantial

effect: upon: the jury, permissible or

1 ae

_D. The risk of

prejudice, if any, could have

been ‘ayoided by appropriate instruc-.

‘ tions and

‘E. | There is no

sider Raffel v. United Stats... | 36

a mistrial was not required... 29

occasion in this case to recon- :

II. The cross-examination of the defense qapabiiatalat

(E. Y. Williams)

sional colleague

as to the views of a. profes-

under whom Dr. Williams

_ testified he had received training, and whether ~~ -

he shared those views, was not prejudicial error.

Conclusion... pellgntinnds Ree

{.0275—61_—#

icenacdenuuenbeedageweaduas ' .42

Qe DAR WN. =

2. CITATIONS

Cases: a a :

é Baker v. “United States, FU5 F. 2d 533, certiorari de- Page

TES 6s stranica aude dah oee tenella 33

Becher v. United States, 5 F. ad 45, ocslinaih denied,

' 267 US. 602. -.-! _ Pe CE See as ye 3 . BB

Berger v. United States, 295 .U.S. 78. __-- em caeaed - 33

Chadwick v. United-States, 117 F. i 902, certiorari de- .

— i YS a

Delli Paoli v. Uni States, 352 US. Re 33

Dunlop v. United Ss lio See * 33

Durham v. United States, 214 F. 2d 862.2... __- 41°

Fisher v. United States, 328 U.S. ee 41,42. |

Grunewald v. United States, 353.U.S. 391__. 16, 17, 21, 29, 38

Hill.v. United States, 22 App. D.C. 395 x, Perper ,@.-

-Hopt v. Utah, 120 U.S. 430..........-------------: 33 -

Johnson v. United States, 318 U.S. 189.-...-° Re A 34

Knowles v. United States, 224 F. 2d 168.......---.-- 33

- Lau v. United States, 13 F. 2d 975, certiorari denied,

II Te act ed Ne ie cu wnme 33

Milton v. United States, 110 F. 2d 556:-_._________- 33

Morgan v. United States, 31 F. 2d 385, certiorari de-

ee ee ae 33

Nolen v. United States, 190 F. 2d 418_._.....-..._-- 33

Raffel v. United States, 271 U.S. 494_........- 19, 29, 37, 39

- Reilly v. Pinkus, 338 U.S. 260...........-...----2- 40

Robilio v. United States, 201 Fed. 975, certiorari “de-

eC Sl ncdtincinn disegacasteliessses< 33

Smith v. United States, 112 F.2d 217, certiorari de- .

nied, 311 U.S. G88. . ....... 2.2000. 220020--- ee 25

Spivey v. United States, 168 F. 94 181, certiorari de-

Eo i teens heen cecectendusees 33

Turner v. American Seewrity & Fran Co., 213 U.S.~

Dl «on sc cneumeonstieeeneseeseethacdecesnsoun< 7. 3

United States v. Antonelli Pirewerhe To. 165 F.2d

631, certiorari denied, 399 U.S. 742..... 2... ...-- 33

United States v. Di Carle, @4 F. 9d 18. ............-- 33

United States v. Ginsburg, 06 F. 2d 882, certiorari de-

Se Se J adcuetietncdectalemantwneue 33

United States v. Nimerick, (‘8 F. 2d 464, certiorari de- -

ei eee 33

Ill

Cases—C ont —y . : . Page

Waldron v. Waldron, 156 U.S. 361. oat SAL, 33

Young vy. United States, 168 F. 2dges2, certiorari de-

Sa” Se el ee at 33

Statutes:

D.C. Code 22-2401. ASE, RIE ER tap a cl on

Miscellaneous: . : .

Karpman, Criminality, Insanity and the Law, 39 J.

Crm. L. & Crimin. 584 (1949)__-_-_:..--.-.-_-- 41

Karpman, (Criminal Psychodynamics, 47 J. Crim. &

- Crimin. 8 (1956)_____- __ Fae ie AE ea ir 41

Krash' & Levine, Memorandum of Dissent; 26 Journ.‘

Bar Assoc. of D. 8f C. 316 (1959), ....-.....-.--- 42

2 Underhill, Criminal Evidence (5th ed. 1956), p.790_. , 40

Wechsler, The (Criteria of Criminal Responsibility,

22 U. of Chi. L. Rev. 367 (1955)._.._.-._-...2-.-.- 42

2 Wharton, Criminal Evidence (12th ed. 1955), P. 354. 40

me - :

& te Supreme Gourt of the nied States

_ OCTOBER TERM, 1960

b& No. 143

A Ww ILLIE ‘LEE STEWART, PETITIONER

— os

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES

7 OPINIONS BELOW - +

The majority (R. 380-394) \ and dissenting opinions

(R, 394-399) of the court of appeals, sitting en banc,

are reported at 275 F. ad 617, 626.

1“R.” refers to the gecord printed for the use of this Court.

Counsel have stipulated that the portions of the original record

not printed might nevertheless be referred to ‘in the brief: and

arguments in this Court. This original record, on file with the

_ Clerk, inchides: the transcript of the present trial (November

1958), which will be. referred to as “Tr:”; the transcript of

petitioner's first trial in June 1953: the tfanscript of the second

trial in January 1955; the-transcript of petitioner's competency

hearing in October 1958: a volume titled “Joint-Appendix”: and

an “Original Record on Appeal” containing pleadings and other

low uments: relaiing to all three trials.

4 ae

JURISDICTION

The judgment ‘of the court. of appeals was entered

on. February 16, 1960 (R. 399)... A petition for re-

hearing was denied on March 30, 1960 (R. 400). The

petition for a writ of certiorari was filed on ‘April 2y,

1960 and granted on June 13, 1960 (R. 400; 363 U.S.

818). The jurisdiction of this Court rests on 28

U. US. C.1254(1).

QUESTIONS PRESENTED i

1. Whether, in the unique circumstances of this

case, prejudice ‘of a character requiring a mistrial -

resulted when the defendant, testifying in. his third

trial, was ‘asked by the prosecuting attorney whether

he had t.stified at his prior trials, the question never

being answered and the ‘failure to testify at the prior

trials not otherwise being alluded to during the course —

of = trial. cs | |

. Whether there was improper eross-examinat]

of ¢ a defense psychiatrt.

3. Petitioner also raises but does not argue the

-following question: Whether evidence of his low

intelligence quotient required an instruction to the.

jury that he could be found cuilty of second degree

murder.

_ STATEMENT

On April 13, 1953, an indictment. was wieiiiil In -

the United States District Court for the District of.

Columbia, ebarging petitioner with the murder, on

March 12, 1953, of one Harry. ‘Honikman in the com-

mission of a robbery (R. 16), and, in a sécond count,

with robhety (R. 16). The present proceeding stems

from vabiecin’s third conviction on both ceunts—

(R. 27, 378-379).? By a 5-4 decision, the court of

appeals, sitting en banc, affirmed the conviction (R.

399), the dissenting judges expressing the view that

it was reversible error for the prosecutor ‘to ask

petitioner qn cross-examination a question about hot -

haying taken the stand ata prior trial (R. 394-399).

Petitioner’ s mandatory sentence was the death penalty

(R. 33-34). | ‘ i eS

The iad issue argued by petitioner relates to

the propriety of his cross-examination.”. He also

states as. a question presented (included also in~

the petition), but does not argue, the refusal of the

trial judge to instruct the jury that it ‘could convict.

petitioner of second degree murder befause of his low

intelligence quotient. Petitioner docs not here ques-

tion_the sufficiency of the é¢vidence supporting the

jury verdict that he committed: the offense and was

sane at that time, a determination fully reviewed by

‘the majority, ‘of the court below (R. 380-394). ‘How-

ever, the questions raised must be judged in the light

of the whole record. We therefore outline the facts

of the crime, the evidence on insanity, and, finally, the.

* Following each of two previous convictiong (in 1953 and

1955) on these charges, the court of appeals reversed for reasons

hearing on the defense of insanity—on the first appeal (214 F.

2d 879), because of an error in the instructions on insanity,

and on the second appeal (247 F.2d 42), because of error in

the closing argument of the prosecutor as to the credibility of

petitioner's lay witnesses.

* Petitioner_also argues error in the cross-examjnation of the

defense psychiatrist; the facts bearing on that issue are set

forth in the Argument on that point. /nfra, pp. 39-40. .

& > - ee nas i

en ie

pertinent proceedings on the cross-examination of

petitioner. -

* A. THE FACTS OF THE CRIME oa

The evidence establishing that petitioner killed one

Harry Honikman during the perpetration of a. rob-

bery was- unchallenged, either at the third trial or at

the two-prior trials. The facts show that, on the —

- evening of March 12, 1953, shortly before closing time,

petitioner entered a grocery ‘store in Washington, ©

D.C., owned by one Harry Honikmian, and purchased

a bottled soft drink and a bag of potato chips, later.

-_ throwing. the bag in the wastebasket. Shortly there-

after, petitioner ordered another bottle of soda. Mr.

Honikman, advised him it was closing time (about

_ 9:00 p.m.), and asked if he would mind taking the

. soda with im. As Mr. Honikman. came from behind

the counter to give petitioner his purchase, petitioner

drew a pistol and said, ‘‘Okay, this is it’? (Tr. 25).

He then demanded the contents of the cash register,

ang shot Mr. Honikman, who died instantly. Peti-

tioner thereupon, removed some $416 from the cash

Mr. Honikman’s wife and donate, who were in

the store when petitioner flm@ enters, witnessed the —

— a

‘On thc first appeal, writing fer @ qnenimeus court of ap-

peals, Judge Bazelon stated: “There is net the slightest doubt

from: the evidence * * * ‘that [petitioner] committed the

offense.” 214 F. 2d at 58. Again, in his opinion on the

second appeal, Ju Bazelon observed: “In both trials the

evidence made it unmistakable that, if the appellant was legally

sane, he was guilty of the homicide charged against him.” 247

F. 2d 42, 43. The evidence addaced in the third trial is sum-

marized in the majority Opinion below at R. 380-381,

entire transaction including the shooting, and later |

selected petitioner out of a police. line-up as the

slayer.” In addition, expert testimony was adduced

revealing that petitioner’s fingerprints were contained

on a potato chip bag and an empty soda bottle found in

the grocery shortly after the killing (Tr. 87-95, 98-

108), and that his revolver was the murder weapon

(Tr. 184-194). :

'B. THE-DEFENSE OF INSANITY .

At this, as at the prior trials, petitioner eiiied his

defense on the claipi that he was insarie at the time of

the homicide. ‘This defense had a three-fold aspect.

1. First, the defense introduced lay testimony—of.

relatives and friends—-concerning petitioner’s conduct

and. behavior over a period of years preceding the

homicide.® The essence of this testimony was that

petitioner had committeed many bizarre and inexplic-

able acts over the years preceding the crime indica-

tive of mental derangement (see, for example, testi-

mony” of petitioner’s wife, Aunié Lee. Stewart

(R. 87-99))..

* The testimony of deceased’s daughter, Edith Honikman

Burka, is set forth at. Tr. 2-51. The teetimony of his wife,

Beky Honikman, given at the first trial, was read intothe rec-

ord (Tr. 53-56).

* The lay witnesses included, inter alia, petitioner's cousin

(Irene Anderson, R. 35-43); his sister-in- “law (Julia Daniels,

R. 44-56); an Army acquaintance (Yancy Peterson, R. 58-62) ;

his sister (Geneva Mason, R. 62-73): his employer (James —

Erby, R. 73-80), and his wife (Annie Lee Stewart, R. 87-109).

" Other testimony recounting such prior conduct is set forth

at R. 37-38, 41-42, 45-46, 58-62, 73-80, 111-114, 116-119.

The government introduced rebuttal lay testimony of one James

Hamilton who testified that he had known petitioner for six

580275—61——2 d

2. Second, portions of petitioner’s. Army record

were read to the jury (R. 129-131).* This report

stated that petitioner had scored a 63 on the verbal

sub-test, 76 on the performance sub-test, and 65 on the —

: combined scale of the ‘Wechsler-Bellevue Intelligence

examination and that this ‘would indicate intelligence

falling within the feeble-minded range,”’ although |

there was no “evidence - is or psychosis”

(R. 130). The report conclud: edit petitioner was

“Tlliterate but mentally adequate’’ (R. 131). Dr. Ey-

nest Y. Williams, the defense psychiatrist, stated that

an L.Q. of 65 reflected an intelligence within the mo- -

ronie range, a- condition’ not capable of eyre (R. 152,

162). a howe - Wa

In rebuttal, two government psychiatrists, Drs. El-

mer Klein and Morris Kleinerman testified that, while |

_ petitioner was of low average intelligence, he was not —

a mental defective (Dr. Klein: R.-199-200, 202-203,

213-215; Dr§ Kleinerman: R. 226-227, 231-232, 261-

262, 266-267). As Dr. Kleinerman put it, the verbal

sub-test of 63 would be ‘‘affected -by [petitioner’s]

educational achievements,’’ while the performance *

sub-test rating of 76 reflected .“‘[iJative endowment,

and this is more nearly his’ pote nvial than the other

years prior to the homicide and that, from 1950-1953,‘ he had’

seen petitioner about “once or twice a week,” and believed him

to bé of sound mind on March 12, 1953, the date of the homi-

cide (R. 274-278). -

; * Petitioner was drafted in 1943 and, after his honorable dis-

— in TM, he reenlisted. In.1946 he was discharged (R.

129). By stipulation ef counsel this record was not offered in °

evidence. .

‘

which depends greatly on his educational aehieve-

ments?’ (R. 231).* ;

Defense counsel’s request that the trial judge in-

struct the jury that, from the evidence of petitioner’s

low intelligence it might find him guilty of murder in

the second degree, was denied (see Requests for In-

str uctions Nos. $ and 6, Ff. 29-31).

3. Lastly; Dr- Williams testified tat he had exami-

ined petitioner some three months after the homicide

iy late June 19§$3—for two hours and that, from

this ‘examination, he w was unable to determine if peéti-

tioner Was insane on the date of the crime (R. 144,

155,170). However, w hen asked to assume the truth

of ‘the lay testimony adduced in petitioner’s favor

(supra, p. 5), and the Validity of petitioner's:

Wechsler-Bellevue rating, and to consider these addi-

tional elements: in addition to his personal. diagnosis,

Dr. Williams stated his belief that on March 12, 1953,

petitioner was suffering from both a mental disease

and mental defect (R. 145-151, 153, 157-158; 175,

180-182).

On the other hand, Drs. Klein and Kleinerman, who’

had each #xamined. petitioner some two weeks after

the offense (De. Klein on Mare. 26, 1953, for xbout

an hour; Dr. Kleinerman /for two hours on Mareh 25,

1953), agreed that petitioner was not sufferting from-

a‘mental disease or defect on, the date of the homicide

‘ Similarly, see the testimony of Dr, William G. Cushard. a

psychiatrist at St. Elizabeth's hospital who had examined ‘pe-

tuioner on January 2, February 3, and April 14, 1958 (R. 343-

344, 352; see also testimony of Dr. Mary V. McIndoo, a psychi-

atrist on the staff at D.C, General Hespital (R. 361-362) ).

(Dr. Klein: R. 195-197, 199-202; Dr. Kleinerman:

R. 228-229; 231-232, 261-262). :

* —s«@,.: PETITIONER’S CROSS-EXAMINATION

Petitioner, who had not testified on the first two

trials, took the stand at the third trial and gave

testimony which the court below described as ** gib-

_berish without meaning’ (R. 381), revealing that ‘‘he

was sufferi ing from a grave nental disease or defect

* * * or he ‘was malingering—staging a show of

mental aberration to influence the judge and jury”

(R. 381-382). When his counsel asked him at the:

outset whether he would swear to tell the truth, he

answered, a don’t know”? (R. 132). In denying he

was marr ied, he stated that “nobody is married” (R.

; 133). When asked if he knew that his attorney’s .

name was ‘Mr. Carey, he responded:.“You asked—

you know what your name is. Don’t ask me. I ain't

asked what your name is, is 1? You go ask yourself”

(R. 134). He testified that he was going to kill until

he conquered; that he would be the master; and that

he had spoken many. times with God who had told

him to conquer all the’ peoples of the world (R..134-

136). .He further said that he never heard the name _

Harry Honikman;. that he did not kill Mr, Honik-

man; that he had killed “nobody yet’’; and that as

far as he was concerned he was charged with nothing

AR. 134). When inquiry was made as to whether

he had ever been tried for first degree murder before

this time, petitioner replied, ‘‘T ain’t never been tried.

I ain't never been tried’’.(R. 135).

On ¢ross-examination, petitioner .continued — this

same appearance of irrationality and faulty memory.

He did not recall, inter alia, being examined by any

of the psychiatrists, or being in the Army, or whiere

he was ‘living, or whether he Was arrested and for

what (R. 137-139). The following ee then

occurred (R. 139-140) : .

Q. Willie, you were tried on two other

oedasions.

A. Well, I don’t care how many occasions,

how many case—you say case. I was a case

man once in a time.

Q. This is the first time you have gone on

the stand, isn’t it, Willie? ae

A. What ?

Q. This is the first time you is gone on

the stand, isn’t it, Willie?

A. I am always the stand, I am everything,

I done told you.

Mr. SMITHSON [prosecuting attorney]. “That

is all.

The Witness. You and nobody else going

ever to stop me.

The Court. Mr. Carey, anything further?

Mr. Caney. That is all.

_ After the witness was excused, defense counsel, out

of the hearing of the jury, moved for a mistrial on

the basis of the prosecutor’s question as to, petitioner's

taking the stand for the first time. — further col-

loquy then ensued (R. 140-141) ; .

The @ourr. That wasn’t ment.oned, 2 was it?

_ Mr. Carey. He mentioned it, Mr. Smithson.

Read it.: I would like to have. you read it.

The Court. The conviction ? :

. i al

* ° -

*. 3 — ‘ -

. . ,

"% ¢ .

had ,

ys ,

\ . a

Mr. Carey. No. “taking the stand. This j is ‘the

first time you have’ = the stand, Willie,

isn’t it. °

: Mr. Sarrnson. I think that. is a fact that the

. Jury is entitled to know, Your Honor. On so

many occasions they have referred to eae record

‘in the first case or the second ON

Mr. Carey. I think -it-is highly prejudicial<~

I would like to have it ‘read. ae

Would you read.that comment of the pros-

ecutor ?

(Whereupon the indicated question was read

by the reporter.) __ :

The Court. Motion denied.

Petitiorier renewed the motion for’a mistrial at the close

of the evidence ¢(R, 368) and assigned the denial of ©

the motion as error in his motion for a new trial (see

p: 32 of Joint- Appendix on file with the Clerk of this

Court). os!

Thereafger, to rebut patito S$ appearance of ir-

rationality, testimony was adduced by the. govern-

ment’ from lay and psychiatric. witnesses that peti-

tioher was sane and competent at the time of trial.

The pyschiatrists testified that petitioner was malin-

gering (see R, 282-287, BG 328, 338-339, 343-348,

356, 359-360, 386-387). ‘- :

petitioner had- been tried before by reading excerpts from

testintony adduced at the former trials (R. 35; see also Tr. 47).

* 11 Similarly, at the pretrial competency hearing held: on Oc-

tober 28-29, 1958, Dr. Mary V. McIndoo testified that she had

'. examined petitioner and believed him competent to stand

trial (see Transcript, of Competency Hearing on File with the

“ Clerk of ‘this Court, pp. 111-115). Following this hearing, on

October 30, 1958, the district judge (Letts, J.) issued an order

oe ; &

1 eae

SUMMARY OF ARGUMENT

During the cross-examination of petitioner, govern-

-. ment counsel asked, and received an.incoherent re-

ply to, the following question: “This is the first time.

vou have gone on the stand, isn’t it, Willie?” - No other

mention was made of petitioner’s failure to testify at

his two prior trials during the course of the. present

trial, in the closing arguments, or in the charge to the

jury. The principal question in this case is whether the

asking of that question required. a mistrial to. be

‘declared. ‘ i ee

We agree with petitioner that the qmeetiien should =

not have been asked if'\it did.in fact have a preju-

dicial effect, for its probative value for the only pur-

pose for r_ which. it was. logically relevant—simply. as

one of a a series. of questions to test: ‘petitioner’ S conr

prehension - ‘and memory—was hardly sufficient- to’

watrant ineurring a risk of. prejudice. Thus the only .

“issue in dispute.is.whether the asking of the ques-

did, as petitioner assumes, have -a prejudicial

"effect. In-our view, there was in fact no substantial

‘likelihood that the jur; would draw from the question

an inference adverse to petitioner and that whatever

likelihood of prejudice there was, if any, could have

been . forestalled by an admonition: to ‘the jury that

leading questions are not evidence of the facts as-

- sumed, and a mistrial was not required. .

finding petitioner of sound mind, able to understand. the na-

_ ture of the proceedings against him, and to assist in his own ‘

_ defense. :The court found him to be a malingerer (R. 26-27).

12 — ky.

In. the ordinary. case in which the issue is whether

‘the defendant committed the acts charged, the danger -

that the jury will infer from a defendant’s failure

to testify that he did commit the. acts is an evident

one. Petitioner assumes that because such a danger ;

is present ip most cases it can be accepted with-

out examination that there was a similar danger

“here. We/submit, however, that, in the unique cir-

cums es of © this case, there was not only little.

likelihood that the jury was even aware that peti- _

tioner had not previously testified but there was no

way im which that fact, even if brought ‘to the jury’s

attention, tould have been prejudicigl to petitioner.

_ In the first place, since the question remained un-

answered, the jury was in fact never told of petition-

er’s prior silence, and ini view of the context in which

the question was asked and. the little emphasis given

to it, it seems unlikely that the question made any

more: impression upon the jury than upon, the judge, ©

who was not even aware of its being asked. Nor was

the matter ever again alluded to or the jury invited, |

~~ explicitly, to draw any adverse infer- ~

ences from i

- More. importantly; there was no way in which the

jury could ‘have made use of the fact of peti-

tioner’s prior silence, even if established, to re-

solve any of the issues in this case. On the ques-

tion whether petitioner had committed the acts

charged, no attempt was made to deny that fact at

the third trial itself, and the failure previously to

deny it could add nothing -to the failure to do.so then.

Nor could the jury draw any inference from the prior

. 7 . .

silence. in’ determining whether. petitioner was ma-

_ lingering in his “testimony’’ at the third trial—z.e., in

his implied representation that he: was. then incom-

* neten€—for, if petitioner were as irrational as he pur-

ported to be, he obvigusly lacked the capacity to make

a rational judgment whether or not to testify in his

previous trials.

The “prejudicial effect’’ of which petitioner com-

plains musi, therefore, be in the danger that the jury .

inferred from his prior silence that he was sane at

the time of the offense. Petitioner does not attempt,

however, to explain how. such an inference might be

drawn, aaa in’ our view there was no’ way. in whicli

it could be. .The reasoning that if petitioner had been

iusane he would have testified concerning his condi-

‘tion at the time of offense is precluded by his appear-

ance on the stand as being incompetent at the time

of the trial. If thé jury believed that appearance, it

‘would fully explain his failure to testify previously.

If they believed he ws feigning, on the other hand,

his failure to testify at the prior trials could add

nothing to his refusal to givé meaningful testi-

mony at the third trial and his senapt, instead, af-

firmatively to deceive thé jury.

The question here; moreover, is not ‘iii whether

the question was improper in the sense that an ob-

jection to it should have been sustained, or whether

there was some remote possibility of prejudice, but

whether the possibility of prejudice was so great

that it could not be avoided by any means short of

a mistrial. The trial court did not, in this éase,-Fule

580275—61——- 3

ed io

-that the qnebtion Was a proper one or refuse to ad-

monish the jury te ignore it. All that oceurred was |

that the question Was asked, an unresponsive answer

was received, and. petitioner’s motion for a“mistrial

was denied. Not _having requested other curative

velief—such as an ‘admonition -to the ‘jury to ignore .

the. question—pe titioner must stand here on his claim

that. notping less, than a mistrial was adequate. Nor

is there any reason to believe , that the failure of

counsel to ask for curative instructions Was inadvert- -

ent rath than ‘deliberate. In the context in which

the question was‘asked, as we have noted, it Was given

x0 little emphasis that not even the trial judge took

note of it, and defense connsel. could quite reasonably

have concluded that not only was an admonition un-

necessary but it would ‘only- serve to emphasize to the

jury an incident that they had very likely otherwise ,

‘overlooked. . ‘ ; ‘ F

‘When the defendant has been represented by com-

petent counsel- who has chosen, for ggod reasons, not

‘to seek curative instructions, a mistrial ought not

be required even, in a capital case, we submit, without:

at least. some showing not only that there was some-

thing more than a remote possibility: of prejudice,

but that other measures, short of a mistrial, were

inadequate to forestall that possibility. As we have

showh, the clairn of prejudice here depénds upon 4

series of ‘propositions: some of whieh are at best specu-

lative and $thers of which are simply unsupportable:

(1) that the jury took note of a question so little

emphasized that not even the trial judge was aware:

of it; (2) that, although the question was never

answered, the jury inferred from the question the

faet that petitioner had not previously testified; and _

(3) that the jury then. infePred from petitioner’ *

prior sjlenée, hy a process of reasoning still to’ be

explained, that petitioner Was sane at the time of the.

offense. And. as to the effieaey of curative instrue-

tions ta.foreclose the possibility of pre Judice (if any),

this Court is apparently asked simply to assume that

a jury will not. follow even so simple and ‘direct an

admonition as one telling it: to ignore a singte irrele-

vant and unanswered, question. In short. petitioner

has, we submit, failed to show either a possibility of

prejudice or the inadequacy of a simple instruétion to

‘the jury to°overcome whatever poseensisty ‘of prejudice

- there may have been.

II.

There is no merit to petitioner’s claim of prejudi-

cial error in the. cross- -eXamination of Dy, BE. XY.

— Wilhams, the defense expert in psychiatry. In light

of the testimony adduced on direct ex xamination of .

-. Dr. Williams and as a matter of valid impeachment,

it was phite- to ask him whether he agreéd with the.

_ published views of a colleague (Dr. Benjamin Karp-

man) under whom he had received training. In any

event, as the court below pointed out, the question was

totally harmless since it produced ‘nothing except a

positive disavowal by the witness of the viewpoint

atueneted to Dr. Karpman.”’ (R. 389).

@ 16 4

ARGUMENT . ;

| e I = re

ASKING PETITIONER WHETHER’ THIS WAS THE FIRST

TIME HE HAD TAKEN THE STAND, WAS NOT PREJU DICIAL

AND DID NOT REQUIRE A MISTRIAL ee

: a . “A. INTRODUCTION

During the course of the cross-examination of peti-

tioner, government counsel’ asked, and received an

incoherent reply to, the following. question : “This is

the first time yew have’ gone on the stand, isn't. it,

Willie ?”’ “The incident oceurred on the second day of

a trial that lasted five days, and the matter was not

again alluded to, in the presence of the jury, during

the rest of the trial, in the closing argume nts, or in

the charge to the jury. Immediately after the inci

dent, petiuioner, moved for a'mistrial, which the couirt

denied without comment. The primary question in

this case is whether, because of the asking of that

' single unanswered question,” the motion for a-mis-—

- trial should have been granted.

In approaching that problem we start on common

- ground with petitioner as to the meaning of Grune-

“wald vy. United States, 353 U.S. 391. In that case,

a defendant ina conspiracy trial (Halperin), having

given innocent answers to questions concerning his

relationship ‘with the alleged co-conspirators, was

12 Petitioner seems to draw some com fort from the fact that

petitioner first replied “What?” and counsel then repeated the

question, so that, as petitioner says, the question was “twice”

‘asked (Pet. Br. 2, 7). While’ we do not mean to deny that

fact, it seems to us that a question repeated becausé nof heard '

‘or understood is more meaningfully described as one question

rather than.two, and it is for that reason that we ‘refer 1 in this

brief to the “single” question.

Sy ee ee eee

- .

ee ee

PEPE PTS PM pete Ay Te RE. a Mee haw

P .

required on eross-examination to admit that he had

pleaded the Fifth Amendment to the same questions

before a grand jury. The jury Was then instructed

that it might consider that evidence ‘as bearing on the

defendant’ s credibility. | Noting that there was in

fact no inconsistency between the defendant's refusal

to answer questions before the crand jury. and his

testimony at the trial, this Court held that the evi-

dence of his prior inveeation of the privilege-was of -

ss os rr eo sie

less than neghgible value im impeaching the défend-

ant’s testimony and shorted therefore shave been ex-

ehided—-under the traditional standards of material-

itv—beeause of the evide ‘nt danger that the jury would

. make impermissible ise of it by equating a claim of

the privilece with enilt. As stated by the Court

(RAB): «ose ae a

* * * in this case the di Incers of impermissible

use of: fhis evidence far outweighed whatever

advantage the Government might have derived

“ from it if properly used. If the jury here fol=

lowed the judge’s instructions, namely, that the

plea of the Fifth Amendment was relevant only

to credibility, then the weight te be xiven this

-evidenee was less than: negligible, since * * *

there was no true inconsistency involved * * *-

On the other hand, ‘the danger that the

jury made impermissible use of. the testimony

by implicitly equating the plea of the Fifth

Amendment with guilt is, in light of contem-

porary history, far from negligible.

In substance, therefore, Grunewald was sitnply a par-

_ticularized application of the accepted rule of evi-

dence that otheFwise. relevant and competent evidence

* +

°.

i? 1S

may nevertheless be excluded if its probative value,

properly used, is slight and the danger of its im-

proper use is great. =

On that principle, we are in agreement with peti-

tioner. Our disagreement avines only over its appli-

cation to the unique circumstances of this case.

Petitioner simply assumes that the question asked

here had a “prejudicial effect’? and then argues that

the value of the inquiry to the government was msuff-

cient to outweigh that likelihood of prejudice. We,

however, concede What petitioner argues and challenge

only what petitioner assumes. ‘That is, while we think

the inquiry was a relevant and competent one, we eon-

cede that-it was of but negligiblé importance to the

government's cise, and argue only that it wits equally

unprejudicial to petitioner, If short, we are in agree-

ment with petitioner on the negligible value of the in-

“quiry to the government, and the only disagreement—

and the only question to be resolved ‘by this Court—

is Whether the asking of the questiong was in fact pre-

judjcial to petitioner. Tf it was not in facet prejudi-

cial, the question, otherwise competent and relevant,

was a proper one and, for that matter, even if it were

not, there would be no basis for declaring a mistrial.

If if was prejudicial, on the othe: hand, we concede

that the question should not have been asked, and the

only issue then becomes whether the prejudicial effect

-eould have been avoided by an appropriate admoni-

tion ty the jury or whether the prejudice was so great

that a mistrial was required.

We will first show for what purpose we consider the

question asked _to have been relevant and competent

}1)

and why it was of but negligible importance to the

government for that purpose. We will then show that

the question could have had no impact upon the jury

for any other purpose, permissible or lmpermissible.”

Next we will show, that, even if it did, the prejudicial

effeet could hardly have been so great that it could not

have been cured by seine measure (admonitions to the

jury) short of declaring a mistrial, We will note.

finally, why this ease provides no oecaston for a re-

eXamination of Raftel V4 nited States, 276 US. 494,

is suggested by petitioner, :

hoot QUESTioN owas REPEVANE AND COMPETENT AS ONE Or 1

sERIBS OF MEMORY TESTING QUESTIONS BED Wis OF = NO

IMPORTANCE POR TH ‘L KBs!

Although it haj little effect on the outcome of the

case. if is approp)iate to state explicitly what We con-

sider to have been the only proper purpose for which

the question asked was relevant—namelv; to. test

petitioner's memory and comprehension im an- at-

tempt to reveal as mahngering his seemingly irra-

tional behavior on the stand. The relevance of the

question for that purpose is, we think, evident from

the context im which it was asked.

Becca testithony (which appears in full at

R. 132-140) was, on both direet ‘and cross-examina-

nc almost y gl Ikrational and unresponsive,

amounting to,Ats the court of appeals said, * gibber-

meaning” (RR. $81). Its verbal Content

no significance, the ‘only relevance of the

ish withou

being, of

finony as a whole lay in its implied representation

that petitioner was then (at the time of (the trial)

totally incompetent. It was the government's belhef,

~t)

supported by psychiatric and lay testimony, that peti-

tioner Was malingering in an effort to inflirence the jury

to find that he was insane at the time of the erime.”

The only issue to which the cross-examination could be

directed, therefore, was whether or not petitioner was

malingering—ie., hether his implied **testimony”

that he was incompetent Was credible.” .

~Like the direct examination, the eross-examina-

thon Was necessarily limited, by the nature of peti-

lioner's responses, to the asking of simple @uestions

relating te petitioner's pefsonal history, bis family,

tlle charges against him, the prior proceedings, and

recent events—all having mo purpose but to test out

petitioner’s memory and comprehension. It was ap

parently the hope of the prosecutor that, mo resyond

ing te a series of simple memory-testing questions,

petitioner might in some Wave—perhaps by dropping

his guard and responding rationally or, perhaps, by

“overplagang”” hiss pose of Knowing nothing of his

own dplatinieon tip his hand and give the jury

a clue that he was malingering. *

kt was ‘as the last of the series of suéh questions—

noye of which related to any fact material to the

"The yvovernment’s view that petinrioner was feigning: wis

based on expert testynony adduced at the pretrial competency

hearing, as well as } eo a psychiatrist who testified that pe-

titiover had been under gbservation for some time up until

“the date of trial and that these observations indicated that

he was not suffering from mental illness but was a malinyerer

(see the Statement, «pra, p. 10, n. 11). The government had

corroborating information from lay witnesses and psychiatrists

who had had the opportunity to ol«erve petitioner regularly «

over a period of some years up to the date-of the third trial.

All of this evidence was introduced by the government on re-

buttal (R. 292-287, 988-225, 338-350, 356-361).

case (¢.g., Where petitioner had gone to school avhether

he was in the Army, what work he did, if he re-

membered being aryested)—thtat the question chal-

lenged here wis asked. Tn that Content, its rele-

vance, like that of the series of which. it was a part,

did not depend upon the fact inquired about (whether

he had previewsty testified) buf upon petitioner's ¢a-

pacity te remember the fact and respond rationally

_ to the question. | Bn ote respect, indeed, that question

tniaay’ Trane Deeseom ewhewhat more relev ant than the others -\_

asked, sinew petitioner had <tated on direct examina- -

tien that he had ‘never been tried” CR. 135), and —

admission by him that) he remembered not having

taken the stand at his prior trials would have tended

to Show that his pry worted failure te remenbyr being

tried Was a sham. J Quite apart from that, howe: er,

the question was at least as relevant and competent,

‘or memory-testing purposes, as the other questions <_ .

asked and was, therefore, impxeperly asked ‘only if,

because of its subject matter, it had collateral preju-

dicial effects which the other questions did not. .

We must acknowledge, however, that for memory- -

‘testing purposes the asking of that particular. ques-

tion was of at best only negligible importance to. the

covernment, for the attempt to test petitioner’s mem-

ory and comprehension could have proceeded equally

well without it, and there were undoubtedly ‘other

questions that could readily have been substituted for

it. In short, for that purpose the question, while rele-

vant and competent, was of only margiv=! materiality

und the posing of it could be justified under Grune-

‘ 5.

wald only if it did ‘not. in fact have collateral pre-

_ judic ial effects: If itsdid, we concede, as we noted at \

‘

the outset, that the question should not have been |

asked, | . :

The purpose of the question discussed above .is the

ohe that seems to ts to be suggested by its context and

is the only purpose ty which, upon analysis, the ques-

tion seems logically relevant. The prosecutor's state-

anent, made in answer to the motion for a mistrial,

that 1 think that isa fact the Jury is entitled to know”

(R. 140) SUES s, however, that he may have also had

in mind a different purpose, turning not on petitioner's

— memory of the fact but the art itsel f—namely, the Us,

of petitioner's failure to testify at the prior trials as a

prior “inconsistguey” with which to “impeach” his

“testimony.”” That purpose was also urged upon, and

accepted by, the court of appeats as a permissible rea-

‘son for seeking to establish the fact as such (BR. 392-

393).. Upon further reflection, however, it seems tous ©

that, as pointed out in the next Point, the prior fail-

ure to -testify, even if estabtished, would have

had no logical tendency to contradict petitioner’s only

. “testimony” in this case—i.e., his iniplied assertion

of jncompetence. It may be,that,. had petitioner re-

spoiided rationally to the line of inquiry, pursuit of the —

inquiry further might have, as the court of appeals

suggests (R. 392), dev eloped an inconsistency useful |

for impeac ‘hment purposes. But we dp not now. at->

tempt to justify the question on any ground other

than its utility for snail purposes,

- : Z . bs fe

C. THE QUESTION COULD HIAVE LAD NO SUBSTANTIAL EFFECT UPON

THE JURY, PURI IOSOE.S OR OTHERWISE. .

In the usual case in which the defendant does not

testify (or did not do so in a prior trial), the danger

that the jury will draw an impermissible inference

; of guilt from that failure is an evident . +e. for the

premise upon. which the inference _depends—"Tf he

didi’t do it, he would have said Ro" —is one which

must seem obvious to a lay jury. Petitioner and the

dissenting judges in the comt helow assume that, be-

‘fuse that. dange r is present In mnest cases, it can be

accepted Without vexalmination that the same danger

was present here. It is our view, however, that in

_ the, unique ,circumstances of this ‘case the question

POON ear

~ asked, apart from its relevance as one of a series of <

questions probing petitioner’s comprehension and

memory, had no impact at all upon the jury, permis-

sible or otherwise. ;

1. In the first place, since nog responsive answer Wag

received to the question, and no attempt was ever

made to establish the fact:by independent means, the

jury was never in’ fact told that petitioner had- not

testified at his prior trials. Because the question was

* Jin a leading form, petitioner assumes that the jury

inferred the fact from the question. There is, how-

ever, no warFrant Yor that assumption. For all the

jury knew, petitioner had in fact testified at his prior

trials and the question was put in that form only to

provoke from him a vigorous denial that would un-

dermine his pose of not remembering the prior trials.

Moreover, while there might be'a danger that the 7

jury would make such an inference had the question

; -: . a

been emphasized and their attention foeused on its

implications, there is every, indication in the record

. that the question made no. impression at all on the

jurzy. It was asked, as we have noted, as the last of

_a long series of questions the subject matter of which

Was unimportant and the only purpose of which was

to test petitioner's memory and comprehension. |The

focus of attention was not on the questions or the facts

to which they related, but only, on the quality and

nature of petitioner’s replies? the subject matter of

the questions asked being quite incidental. In that

context of the challenged question, it” is: hardly sur-

prising that, when the niotion for a-mistrial wagmade .

immediately thereaftér, the trial judge was not even

aware of the question's having been asked. The sur-

prising thing would rather he that the question had

any more impact upon the jury.

‘In short, to establish the predicate ujion. which all

of petitioner's arguments: depend, it is necessary to as-

sume (1) that the jury noted and focused attention

ona question given so little emphasis that ‘it was

overlooked.by the trial judge and (2) that’ the jury then

‘imprope rly inferted the fact-{i.e., that petitioner had

not testified at the edrlier trials). from the leading

form of. the question. That there was no substantial |

likelihood of the 3 Jury's making that. inference in. the ©

_¢irenmstances of this case is, we think, confirmed. by

the fact that defense counsel apparently did riot con-

sider that likelihood to be sufficiently great at the

time even to warrant requesting an admonition to the

jury that teading questions are not evidence of the

facts as: ‘amed. :

Fe nah) led

LL PE RTT So PRs Te NEF

. .

& 23

2. In the second place, there Was no comment upon,

or instructions permitting the use of, petitioner’s

failure to testify at the prior trials. AS we have

noted, the incident occurred on the second day of a

five-day trial amd at no other time during. the ‘course

- of the trial, in the closing arguments, or in thie judge’ S

charge, was any allusion made to petitioner’s previous

failure to testify. Thus, the must that can be claimed

is that the jury was-able to infer from the question

the bare’ fact that petitioner had not testified’ at his

pridr,trials. Plainly, however,.the jury’s bare knowl-

edge of the fact that a defendant has not testified

cannot be deemed per se to prevent a fair trial, for’.

‘the jury is necessarily aware of that fact in every.

case in which the defendant does not take the stand—

.and, indeed, is often expressly told of it in the usual

instruction that it is not to draw any ‘inference from

the defendant’s failure to testify.* What is, for-

bidden, rather, is hostile comment on the failure to —

“testify, inviting the jury to draw an adverse inference

’ that sdrt.can be found here. Thére was simply the

from that fact; and not even an implicit invitation of -

askive of an unansweréd question, and that was the

enfl of the matter. | °

The final difficulty with the elgiin of prejudie is

even more fundamental. Let it-be assumed, that the

jury did infer the fact from the question and, al-,

*That charge may, of course, be | iven even though not

a requested by the defendant. See, e.g., Chadwick ¥. United ©

States, 117 F. 2d Q0z (CLA. 5), certiorari denied, 313 U.S. 585;.

“Smith v. United States, 112 F. 3d 217 (C.A. a = certiorari

denied, 311 U.S. 633; Becher v. United States, 5 F. 2d -45, 49

(C, A. 2), certiorari denigt, idl c S. G02,

“=~

i al

' though no emphasis had been given the matter, that

they believed that the fact was a highly significant

one that should he brought to bear, 1f at all possible,

in their deliberations. There still Hemainis fhe logical

difffulty, unanswered hy petitioner and the dissenting

opinion below, of how, in the unique cireumstances of

this case, that facet cyuld be used by the jury, either va

permissibly or impermissibly. In off view, there

Was simply no way’ in which petitioner’ Ss previous |

failure to testigy ‘could have had’ any effect upon the

jury’s resolution of any of the-issues material to this

case—namely, petitioner’s commission of the acts

charged ;° the credibility of his’ testimony (i.e., the

bona fides of his purportéd irrationality) ; or. peti-

tioner’s insanity at the date of the offense.

a. Commission of the.acts charged: —The usual

danger of admitting against a defendant who testifies .

at a second trial the fact that he.did not testify at a

prior trial is that the jury will use that evidence not

only to discredit his denial of committing the acts at

the second trial bit to infer that he in fact did com--__

- mit the acts, believing that if he had. not he would -

have said so the first time. In this cage, however, no

attempt was made at the third trial itself to deny com-

mission of the acts—either in petitioner’s testimony

-or by other evidence—and the failure previously to

deny that he committed the acts ¢ould add nothing

to the failure to. do so at the present trial. As a’

wba matter, the commission ‘of the acts—estab-

lished hy v irtually uncontrovertible evidence—was not

_in issue, and the sole defense was that of insanity. By

the same ‘token, the*fact that petitioner had not pre-

a | 27°

viously testitied could have substantially affected the

outcome of this case only if it bore in some’ way on the

‘issue of insanity, and we do not understand petitioner

or the dissenting opinion below ‘to suggest otherwise.

h. Credibility of \petitioncr’s testimony.—Petition-

er’s “testimony ’’’ in this case, as we have noted, had

no*content other than-the implied representation (by

his irrational responses) that petitioner was, at the

date of *the ‘trial, incompetent. T he question of the

‘credibility’ of that testimony, in turn, was whether

petitioner Waly is the Government thought, nialinge r-

“ing in maintaining that pose. Use of petitioner's

prior failure to testify to impeach that testimony—.

if it were logically relevant for that purpose—would

“presumably be permissible under Raffel, partietilarly

since -in this ease the question of credtelity (peti-

tioner’s merital state at the date of the trial) and the

“ultimate issue of guilt (petitioner’s mental state at the

‘ date of the — are more readily separable than ~

in the usual case.”* ¥

* Whether ‘permissile or not, however, the difficulty

is that the prior failure to testify has no tendency to

‘show. whether or not petitionér was malingering at his

“third trial (i.e., to “impeach” his ‘‘testimony” at the

third trial). If-petitioner were in fact the irrational

person he. purported to be at the third trial, then, even

“if it be assumed that his condition.was the same at

his prev ious trials, his failure to testify reflec ‘ts only

a As we‘have noted above (p. 22), it was apparently for. this

purpose that the prosecutor and the court of appeals thought

that the abortive attempt to develop the fact of petitioner’s prior

failure to testify was justified.

28 —«#

~ the capricious workings of a disordered mind. That

is, since petitioner, if he was not feigning; obviously —

‘lacked the capacity to. make a rational judgment

whether or nat to testify, his different conduct at the

several trials shows only caprice rather: than incon-

sistency. In addition, of course, petitioner carmot be

assumed to have been in exactly the same mental state

on the occasion of his several trials. Thus, like peti-

_tioner (Pet. Br. 8-9), we do not see in what way the

- jury might have used petitioner’s prior silence to.

resolve the question whether or not he w was malinger-

ing at his third trial.’

c. Insanity at the date of the offense——The uae

dicial effect’? of Which petitioner complains must,

therefore, be in the danger that the jury would infer .

. from his prior silence that petitioner was sane at the

tinie of the offense. How such an inference might be,

drawn by the jury, however, neither he nor the dis- -

senting opinion in the court: of appeals undertakes to

explain. _The reasoning, we suppose, is this: (1)

although a defendant alleging insanity is perhaps’ not:

‘,the most reliable source of information about his own

mental condition, if he were in fact insane at the date

of the offense he would surely—unless he is now in-

competent as well—have some relevant testimony te

offer on that. issue; (2) since. he did not offer it, he

must not have been insane. The difficulty with that,

however, is that the defendant in this case did purport

to be incompetent at the time of the triaf. If the jury,

believed him to be incompetent at trial, as he claimed,

that would fully explain his failure to give‘meaningful

testimony of eyents surrounding, or his condition at

the time of, the offense. If the jury believed him to

‘be malingering, on the other hand, then his prior

failure to testify could .add nothing to his refusal to

testify meaningfully at the third trial and his attempt;

instead, affiranatively to deceive the jury.

In summary, while we acknowledge the danger in

the usual case that the jury Wil impermissibly infer

guilt from a prior failure to testify, that is so only

because of the force of the reasomng by which that

inference may be drawn—1.e., if the defendant had not

‘gommitted the acts charged he would have said’ 80.

_ That reasoning, however, is inapplicable in the unique

" circumstances of this case, and no other chain of

reasoning is apparent. by which the jury might have

used the fact of. petitioner’s prior silence—if indeed

they inferred it to be a fact—for an improper pur-

‘pose. There being no likelihood.of an improper in-

ference being drawn, the question asked, being other-

Wise competent and relevant as one of a series of

: memory-testing -questions, was not improptr.

D. THE RISK OF PREJUDICE, IF ANY, COULD HAVE ‘BEEN AVOIDED BY

APPROPRIATE viatata alata AND A MISTRIAL bcs NOT REQUIRED

In. its procedural posture, and the precise nature

of the error claimed, this case is unlike either Grune-

which we are aware involving a reference to a failure . *

to testify. The district court here did not tell the

jury that petitioner’s prior failure to: testify could

be used, even for a limited purpose; it did not permit

argumént to the jury on ‘the inferences to be drawn; -

it did not hold-that evidence of that failure was ad-

missible (and in fact it was never. adduced); and,

finally, it didnot hold that the question was proper

or refuse to admonish the jury to ignore it.* Quite’

literally, all that occurred was that the prosseuter

asked the question, the witness replied unresponsivety,

the petitioner moved for a mistrial, and the district

court, without comment, denied -the motion. Thus,

‘it is the. denial of a mistrial, and only that, that peti-

tioner can assign as error, and to establish thatas-

error he must show, not only that the question was

> improper or even that it may have had some pre}-

udicial effect, but that the prejudicial effect was so

great that nothing short of 4 mistrial could cure it.

the question was improper, for, even so, we submit that

a mistrial was not required.

The. usual procedure to challenge a usin is, of

course, to make an objection and to obtain, after argu-

ment, an express ruling by the court on the relevance,

competence, and materiality of the question.’ And if.

the objection” is sustained, the defendant may, of

course, also request an admonition to the jury to dis-

, ‘regard it and to draw no inferences from its being

asked. In this case, however, since the reply to the

question was unresponsive, it made no difference that

an objection was not made to the question before

- the witness answered and full curative relief was still

~ One of the difficulties of this record, it may be noted, is

that because that procedure was not followed, the relevance of

the.question, and the way in which it might properly be used,

if at all, was never explored in the district court.

‘

available to petitioner. Petitioner could, for example,

have asked for—and as far as this record shows, ob-

‘tained—a ruling striking the “question and answer as

immatérial, an admonition to the jury not to infer

from the leading form of the question that petitioner

had ‘in fact failed to take the stand, and, if petitioner

desired it out of: a superabundance of caution, an in-

struction to the jury fhat no adverse inferences could

in any event be drawn from a prior failure to testify.

Petitioner, of course, did not ask for any such cura-

tive: admonitions ta the jury but chose..to use the

incident instead in an‘attempt to obtain: a mistrial.

That the district court denied the | motion. for a mis-

trial does not mean, however, that it necessatily

thought the question a proper one. More likely—

since it was by far the simplest ground on which to

dispose of the matter—it concluded that, since

the question was never answered, no harm had been

done whether, or ‘hot. the question was proper. Thus,

nothing in that ruling implies that the court would

have declined a request to admonjsh the jury not to

infer facts from leading questions—a matter in no

_ way dependent on the propriety of the question—or

‘even a request to strike the en and answer as

immaterial.

Nor cal petitioner complain here of the court’s

failure so to admonish the jury on its own motion.

In the first place, it is hardly error, plain or other-

wise, for a court to assume that the jury knows, with-

out an express admonition, that statements and ques-

tions by counsel are not themselves evidence. In. the

second place, there is no reason to believe that peti-:

tioner’s failure to request precautionary admonitions

was due to inadvertence rather than a deliberate (and,

indeed, sound) decision of counsel. JThe question, as

we have noted, was the last of a series of questions to

which only incoherent responses had been re¢eived.

None of the questions previously asked had borne on»

facts material to the case and the focus of attention:

had been, not on the subject matter of the questions,

but. on petitioner’s behavior on the stand. Asked in

that context, the question—to which only another in-

coherent response was received—was given so little

emphasis and had so little impact that not even the

trial judge was aware of its having been asked.

Under the circumstances, defense counsel—who, the ioe

record shows, were otherwise thorough and diligent in

protecting petitioner’s rights—could reasonably have

concluded that the unanswered question had made no *

more impression upon the jury than upon the judge |

and that any admonition was not only unnecessary _

but would serve only to bring to the jury’ s attention

course, they quite properly (from the petitioner’ .

viewpoint): (outside the hearing of the jury)

moved. for a mistrial on the basis: of the in-

cident and carefully preserved that basis for appeal

_by renewing the motion at the close of the evidence

and by assigning its denial as error in the motion Sr

a new trial. It is, however, on the record thus made

that petitioner must stand here, and he can prevail —

only by showing, not only that the question was im-

proper in the sense that an objection to it should have

been sustained, but that the mere asking of it had an

° 3 :

impact upon the jury.so prejudicial that it» e@ect

could not have been cured by any appropriate im- -

structions and irrevocably made the trial unfair,

Declaration of a mistrial. in, of courne, a remedy

that is invoked only in extreme cireumstances,” and

the cases are Icgion holding that improper remarks

or questions hy counsel, either on the defendant's —

failure to testify * or other matters,” or even an ex-

posure to the jury of inadmissible evidence,” can he

_ cured by appropriate instructions. And this Court

has applied that rule even to extended argument by"

counsel on the implications of the defendant’s refusal,

"For an Ns of such reat PRON en even then

the Court, seemed: to view as a borderline case—see Berger v:

Inited States, 295 U.S. 78, 84-89.

ow Milton v. United States, 110 F. 2d 556 (CLA. DC);

V'nited States v. Di Carlo, 64 F. 2d 15 (C.A. 2); Knowles v.

United States, 224 F. 2d 168 (C.A. 10): Molen -v., United

States, 19) F, 2d 418, 420 (C.A. 6);. Young v. United States,

168 F. 9d 242, 245 -(C.A. 10), certiorari denied, 334 U.S. 859;

Baker v. United States, 115. F. 2d 533, 544 (C.A. 8), certi-

i denied, 312 U.S. 692; Morgan v. United States, 31 F.

385 (C.A. 7), certiorari denied, 280 U.S. 556; -Robilio v.

r nite States, 291 Fed. 975 (C.A. 6), certiorari denied, 263 U.S.

716.

° E.g., Dunlop v. United States, 165 U.S.°486, 498; Turner v.

American Security & -Trust Co., § 213 U.S. 257, 267; United

States v.. Antonelli Fireworks Co., 155 F. 2d 631 (C.A, 3),

certiorari denied, 329 U.S.. 742; United States v. Nimerith,

118 F, 2d 464, 466 (C.A. 2), vertiorari denied, 313 U.S. 592;

Spivey v. United States, 109 F. 2d 181, 185 (C.A. 5), certiorari

denied, 310 U.S. 631; United States v. Ginabuiry; 96 F. 2d 882, 884

(CA. 7), certiorari denied, 305 U.S. 620; Zau v. United States,

13 F, od 975, 976 (C.A. 8), certiprari denied, 273 U.S. 739.

| * Eg., Hopt v. Utah, 120 U.S. 430, 436-437 ;, Waldron v.. Wal-

dron, 156 U.S. 361, 382-383; cf. Delli Paoli v. United States, 352

U.S. 232, 239-243.

gn Fifth Amendment grounds, to answer particular

questions put to him at the trial.”

—~ "3

priate instruction, the defendant had weived the evvar by

ing-to, request such un instrertion. The (oust, im an apinion

by Mr. Justice Douglas, mid (p. 391; eonphasis adiedp:

* * * We cannit permit an accused to eiort

course at the trial and then, when that has proved to be

unprofitable, to insist on appeal that the esume whirk he

- rejected at the trial he reopened to him. However

the first choice may have been, the range of waiver ix wit.

Since the protection which could hace been obtained was

plainly waived, the accused cannot now be beard to charge

———

remote possibility of prejudice, butalso of the inade-

quacy of other measures to forestall that possibility.

_-Inthis case, we think, neithér requirement is satisfied.

As we have shown above, the possibility of prejudice

has merely been assumed and, upon analysis, depends

_ Upon a series of propositions most of which are at

hest’speculative and others of which are, we think,

simply. unsupportable: (1) that the jury took note of

a question so little emphasized that not even the trial

judge was aware of it; (2) that, although the ques-

tion was never answered and the matter never again

referred to, the jury inferred from the question itself

the fact that petitioner had not testified at his: privr

trials; and (3) that the jusy inferred from that fact,

by @ proves of rvasuning that was hever wiggested

t» it and has yet to be explained, that the petitioner

‘as same at the time of the offense. As to the inade-

quary of ether measures, short of a mixtrial, to deal

with the peuihility of prejudice (if any), the Court

» apparently asked to asume—though petitioner di

met oven deal with the quretien—that a jury will mt

Cliew even so simple and divert an instruction ax

a OR |

adv rcting 4 thet a hundeng queetien is ned evidere of

the farts aegced Im chngt, stew me meee has heen

shown here, petite ters pelt wemkl wom tee he

that a mestetel word whearver an mmpesper

(tee os eked or an map. wer eon nd is Emad

ov mmmel of 2 Githese ot itl ~thiy evndenes

stleryd—fram whieh it in pumdiy far ‘te jusy to

fer» fact that may. mm esme aibbeeleed war mre

'. be peejudietal. Uniew the peinripal of eurat:~

» ; oe

... ws, &

) Mew

me instructioiis is to be abandoned entirely in cujittal

* cases, there has been no showing here, we submit, of |

a likelihood of prejudice so great that nothing short|

| of a mistrial would be adequate’ to. assure D titioner

3 a fair trial. is at ane.

We acini that this is‘a capital case and prop- |

erly subject to careful review, but even so it, is dif-

‘asking of thé single unanswered question, on a ubject

immediately abandoned when an incoherent reply

was received and. never again alluded. to during the

trial, could have had any possible effect on the verdict.

As the court of appeals said (R. 394): “The disputed ~

facts and conflicting expert opinions were properly

“subinitted toa jur y- under instructions which were COr- _

** . peet The 12 jurors in the instant case, like 24 jurors -

before them, have rejected his claims and have found

[ petitioner] guilty.”’ There is no reason ae: a differ- =

ent view of the matter here.

E. THERE Is NO OCCASION vn "onia CASE TO RECONSIDER RAFFEL Y.

ae ; Ra UNITED STATES ; ‘ :

As we have indicated above, in. our . view the on

uestion in this case is whether the question asked by °

the prosecutor— “This is the first time’ you have gone |

on the stand, isn’t it, Willie?”,—had a prejudicial ef-

least not so great an effect that it could not have been

_ cured by appropriate instructions—and that the Court

‘should hold no more than that whether or not the .

question should: have been asked petitioner has not

' been prejudiced. If, onthe other hand, the Court

87.

shuld hold that the inhident was prejudicial and °

the prejudice could not be overcome by curative in-

__ structions, then we concede that the question, though:

' rélevant for memory-testing purposes, did not have a .

“sufficient probative value tq justify the risk of prej- —

udice and should not, under Grune wald, have beeh

asked. Either way, therefore, the question of prej-

‘udice is controlling and there is no occasion here to

“| reconsider Raffel v. United States, 271 U.S. 494.

It may help; however, in ordey to make clear why

Raffel-is not involved.in this case, uggest the kind

“> of case that would present that question and the issues

- that it would raise, Stippose a defendant who did not

take the stand at the first trial does testify at his sec-

"ond trial and, offers a seemingly. aif-tight alibi. The

prosecutor, On ¢ross-examination, develops the fact

that he had not prev ‘iously testified and, by foreing the

defendant to explain the inconsistency, siapreeds in ob-

taining from him either a patently untenshle «xplana-

tion of his failure te offer the alibi at the first tial or,

under the press of that line of cross-examination, an

_admission that the alibi was fabricated. In such a

case, the prior failure to testify, would, of course, be

_ of - great value in impeaching the defendant’s testi-

itself as evidence of ee but, .perhaps even

more importantly, by providing a potent line of cross-

examination. At the saine time, however, there would

be an obvious risk’ that the jury would infer guilt

directly from the prior silence. ‘Such a case, which’

would pose in its.sharpest form the question decided

in Roffel, would, of course, be fully distinguishable

mony at the second trial—not only by use of the fact. -

| —— |

from Grunewald. Unlike Grunewald, where the prior

failure to testify was in a very different kind 6f pro- |

ceeding (before the grand jury) and was fully ex-

plainable in terms of that difference, there is at least

a surface inconsistency in the defendant’ 's different ac-.

tion in the .two trials identical: in nature and, very

likely, in the, evidence introduced. ~And“shile there

qight be a satisfactory explanation of the different

’ defense tactics, there would seem to be enough of.

an inconsistency to’ warrant—constitttional problems

». aside—an ‘exploration of the question to seek out that

explanation. And on the constitutional question—not

_ reached in Grunewald—there niay also be a theoretical

_ difference in the scope of the “waiver’’ of the pri-

| yilege in the two situations—e.g., viewing an, original.

criminal trial and ‘a retrial’ as but one proceeding

(compare’ their treatment for double-jeopardy pur-.

poses): so that the waiver in the second trial is equally -

a waiver of the privilege asserted in the first trial, but

‘not considering a waiver in a criminal trial as a waiver

of the’ privilege asserted in.other or preenery

proceedings. . :

Those questions are, of course, difficult and impor-

tant ones, and they ought be-decided, we think, only

in a case,. such as that supposed, that puts the issues

_.and the considerations bearing on them in sharp focus.

The difficulty in this-case i is that, because of the insan-

~ ity issue anéinore particularly, petitioner’s posture

= incompetence at the third trial, the development

titioner’s failure to testify at his previous trials

hak e think, neither discernible value to the goverm

ment’s case nor discernible impact on petitioner's

> Sa ‘ oe

case.- Being in that respect» unique, this case is not, =

we submit, an appropriate vehicle for a. re-examina-

tion. of Raffel. _And, since we concede the negligible

: value to the government’s ease of inquiry ‘into peti-:

~ tioner’ 8 failure to testify at his prior trials, there is

not, as we have noted, any necessity to deal with the

Raffel question. . The only question is whether, in con-

ceding the lack of importance of the. ‘question to the .

government’s case because of the. logical difficulties in

making use of petitioner’s: prior. silence in. the unique _

circumstances of this case, we are also. right in our

contention that, for essentially the same reasons, the

question could not have been prejudicial to petitioner.

» .

THE CROSS-EXAMINATION OF THE DEFENSE PSYCHIATRIST

(E, Y. WILLIAMS) AS TO THE VIEWS OF A PROFESSION AL

COLLEAGUE UNDER WHOM DR. WILLIAMS TESTIFIED HE

HAD RECEIVED TRAINING, AND WHETHER HE SHARED

THOSE VIEW 8, WAS NOT PREJ UDICIAL ERROR -

Despite the willingness of government counsel ts

stipulate to the qualifications of the -defense ness,

Dr. E. Y.- Williams, an expert 1. pevehiotethee de--

fense Gesired to have. his qualifications enumerated

“for the record’’ (R. 142). During the direct exam-

ination Dr. Williaing stated that he had had some

_training’ and experiencé\at St. Elizabeth’s Hospital ..

', under Dr. Ben Karpmain (R. 142). On cross-examin-

ation, after Dr. Williamg repeated that he had studied

unger’ Dr. Karpman, the following colloquy occurred

(R. 167 saa 2 cakes | |

- \ °° Q, Do you know, and dop't you know ax a

: fact, Doctor Karpman is one of those paychia-

trists that subscribes to the view that every

- time a person commits a crime that that person

“is suffering under some mental disorder? -

_A. Doctor Karpman hag never so expressed

that to me in my: studies with him. | :

Q. Tell me, sir, do yom subscribe ‘to that }

View ?-

A. No, sir. . I, have, each case that I see, I

study and come to my own opinion.

* + * *

Q. Have you not so testified that you have

never examined @ person in a criminal case and

found that person of sound mind?

A. No, sir, I don’t remember saying that to

you or ‘nybody in the United States. * ** ;

» On redirect examination, Dr. Williams stated that

: Dr..Karpnian’s reputation in the field’ of beyehiatry

was of the finest (R. 188). . =)

On the ground that. the cross- _examination was ir-

relevant ‘and inflammatory, petitioner moved for a

mistrial. The motion was denied by the trial court

(R. 169).

‘It is a familiar principle that the range and scope

of cross-examination of an expert witness is primarily .

a matter within the sound discretion of the trial judge.

See, 2 Underhill, Criminal Evidence (5th ed. 1956),

p. 790; 2 Wharton, Criminal Evidence (12th ed. 1955),

.p. 354. He may be questioned as to principles con-

‘tained in reputable medieal journals or other standard

treatises to test statements made byt him which are

based on other "professional works. Cf. Reilly v..

Pinkus, 338 U.S. 269,275. in this case, Dr. Williams,

o 4] ee

in giving his qualifications, testified that “he had stud-

ied under Dr. Karpman, a psychiatrist at St. Eliza-

beth’s Hospital. It was not inappropriate to ask him

whether he was’ aware of Dr. Karpman’s views eon-

cerning the relationship between criminality and emo-

tional disorder,” both to determine whether he was

cognizant of the position taken by an eminent psychia- :

trist.of the District of Columbia and to determine his ~

own views on criminal responsibility. : a

In any event, as the majority below pointed out,

the inquiry produced “nothing except a positive dis-

avowal by the witness of the. viewpoint attributed to -

Dr. Karpman’”’ (R. 389), and therefore, even if im.

properly asked, the question was totally harmless in

effect.” an

‘= Dr, Kerpman’s views on-this matter have long been the

‘ subject of notice. He has stated: “* * * I belong to the small

group of psychiatrists who hold the thesis that criminality is,

without exception symptomftic of abnormal mental statés and

is an expression of them.” -Karpman, Criminality, Insanity

and the Law, 39 J. Crim. L. & Crimin. 584 (1949) ; see also, -

Karpman, Criminal Psychodynamics, 47 J. Crim. & Crimin. 8

(1956).

™ Petitioner also raises (Br. 3), but does not argue, the issue

whether the trial judge committed reversible error in not charging -

the jury that it could convict him of second degree murder on

the evidence of his low intelligence quotient. This is a matter

which this Court has held to be peculiarly within the province

of the District of Columbia courts to determine for themselves.

Fisher v. United States, 328:U.S. 463, 476. On at least two .

occasions, since Fisher, the Court of Appeals for the District of

Columbia has spécifically refused to adopt a rule of “diminished

. esponsibility.” On the first appeal of this case (some six.

- years ago) the court deemed it inappropriate to consider the

doctrine “until we can appraise the results of the broadened

test of criminal responsibility which we recently announced in

Durham.” 214 F.2d at 883. The Durham rule of insanity (214

S ¢

‘s

42 x e

CONCLUSION

For the foregoing reasons it is respectful i ate

- mitted that the judgment of the court of appe i

should be affirmed. :

Wee J. Les Raxxw, .

Matcotm Richam Wuxey, —

Assistant Attorney General.

| Wayne G. Baknett,

‘ ‘Assjstant to the Solicitor General.

BEATRICE ROSENBERG, °

JEROME M. Fert,

5 _ Attorneys.

JANUARY 1961. :

F. 2d 862) has not been so thoroughly “appraised” in the six

years since its adoption as to syageet that now is an appro-

priate time for reconsideration oft the. diminished . responsibility

rule. See Wechsler, The Criteria of Criminal Responsibility,

22 U. of Chi. L. Rev. 367 (1955); Krash & Levine, Memoran-

dum of Dissent; 26 Journ. Bar Assoc. of D. of C. 316, get

(1959). But, be that-aseit may,:in this very. appeal, the *

majority of the court below rejected the judicial*adoption of

the rule, considering it to be a problem. more appropriately to

be dealt with legislatively than in adversary judicial proceed- e

ings (R. 391). Unless this Court is ready to overrule Fisher,

and petitioner suggests no- reasons: why it should, it should

honor this latest decision of the local appellate tribunal. ae

Nor is there any merit to the other unargued i issue that the

trial judge erred in not explaining to the jury the meaning of

“sound memory and discretion.” D.C. Code 22-2401. This

language means no more than that the jury must decide whether

the defendant was sane or not. Hill v. United States, 22 App.

D.C. 395 (1903). Caréful instructions were om the jury on

the insapity issue (Me R. 371-372). "

U.S. GOVERNMENT PRINT. RS OFFICE) ID61

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