# Brief for the United States — Stewart v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0349%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States - **Published:** January 1, 1961 - **Citation:** 366 U.S. 1 ## Text , ILE’ COPY | Q sig Court, US. | ED 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. ES . INDEX é 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. i) 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. = II 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 - ee nas i a: 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 register, and deft. 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, 5 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) ). 8 (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). i] 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 ? : Q . i al * ° - *. 3 — ‘ - . . , "% ¢ . had , ys , v \ . a 10 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? 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). 21 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 tempt to justify the question on any ground other than its utility for snail purposes, 23 - : 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 30 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. We may for purposes of this argument assume that © 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. ‘ 31 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-: / J / 2: 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 _ the possible significance of the question. Even so, of © 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. ce 34 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 the court with depriving him of a fair trial, © ° °— ——— 3d 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- '. fect on the jury. It is our view that it did not—or at © 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 4 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. » . Il 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 - 4 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 | | 40 - \ °° 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 4 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). " z 2 a U.S. GOVERNMENT PRINT. RS OFFICE) ID61 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0349%3A3. Public record. Not legal advice.